Eminent Domain: $953,861.25 Fee Award To Prevailing Inverse Condemnation Plaintiff Is Reversed And Remanded, Needing To Be Tailored To Actual Contingency Arrangement Of Fees Incurred By Plaintiff

Allowing Plaintiff To Obtain Broader Civil Rights-Type Fees Would Circumvent “Actually Incurred” Restriction in Civil Code Section 1036.

            Plaintiff must have been ecstatic in Johnson v. South San Joaquin Irrigation Dist., Case No. C079200 (3d Dist. Dec. 12, 2018) (unpublished), after winning an inverse condemnation/tort case against irrigation district after it closed a storm water drainage gate to make repairs, which led to storm water flooding and damages on plaintiff’s nearby property. After winning, plaintiff moved for and received attorney’s fees of $953,861.25 against irrigation district under Civil Code section 1036, an inverse condemnation fee-shifting statute allowing fees to a plaintiff for fees “actually incurred.” The fee award was based on a lodestar request increased by a positive 1.5 multiplier, akin to requests under civil rights statutes.

            The Third District reversed and remanded for a reevaluation.

            The problem here was the “actually incurred” language in section 1036. The retainer agreement between plaintiff and his attorneys had a dual trigger – whatever fees were awarded by the court or the actual contingency arrangement between client/attorneys. The appellate court was concerned with the first trigger which was untethered to any “actually incurred” anchor, unlike the contingency arrangement. “If a fee agreement does not set forth a basis to determine a fixed dollar amount for attorney’s fees, and instead is based solely on what the trial court orders in fees, then there is no basis for the trial court to determine the fees ‘actually incurred’ under Code of Civil Procedure section 1036 until after the trial court issues its fee order.” So, a remand was ordered to determine fees under the contingency arrangement, which did have specific fees which would be hinged to the contingency terms, not a more pro-plaintiff “whatever the court orders in its discretion” approach.   (Pacific Shores Property Owners Assn. v. Dept. of Fish & Wildlife, 244 Cal.App.4^th 12, 58-64 (2016) [discussed in our Jan. 30, 2016 post].)