Defendants/Cross-Complainants Were Entitled To Statutory Section 1021.9 Fees After Prevailing On Trespassing Claims.
In Kelly v. Gregory House, Case Nos. A153735 and A153184 (1st Dist., Div. 1 March 23, 2020) (unpublished), Defendants/Cross-Complainants own and operate a 40-acre organic farm, and had leased 35 additional acres from an adjacent neighbor in order to expand their Gala apples business. They spent years cultivating/transitioning the leased land to certified organic status.
Five years into the six-year lease – which included a six-year extension option – adjacent neighbor decided to sell his property. Neighbor, however, failed to observe the right of first refusal provision contained in the lease. Instead, he entered into a purchase agreement with his real estate agent without notifying Defendants that he had decided to sell. When Defendants learned of the pending sale, they contacted the neighbor to remind him of the right of first refusal provision, notified real estate agent of the same, and began the process of acquiring the funds for the purchase.
Ultimately, the right of first refusal provision was not honored, and the real estate agent moved onto the property, removed trees planted by Defendants, sprayed pesticides, and took other actions that caused Defendants to lose the organic certification on the leased land – all while the lease remained in effect. Additionally, real estate agent sued Defendants seeking declaratory relief and quiet title, among other claims. Defendants successfully cross-complained – alleging claims of interference, trespass to land, conversion and negligence – and were awarded $1,669,705 in compensatory damages and $1,000 in punitive damages.
By the time Defendants’ hearing on their motion for attorney fees came around, the original trial judge had retired, and the successor trial judge denied their fees – determining they had not demonstrated any right to statutory or contractual attorney fees.
Not so, said the 1/1 DCA. Defendants were entitled to fees under Code Civ. Proc. § 1021.9 – designed to ensure farmers are able to protect their land from trespassers through civil litigation. Defendants prevailed on each cause of action and had proven damages caused by the trespasses – thereby entitling them to reasonable attorney’s fees in addition to other costs.
As to Defendants’ argument they were also entitled to contractual attorney fees under section 1717, the 1/1 DCA agreed with the trial court. Defendants were not parties to the purchase agreement entered into between neighbor and real estate agent. Had real estate agent prevailed, Defendant would not have been liable for fees under the contract. There was no fee-shifting reciprocity in this case as is required under 1717.
On remand, the appellate court instructed that the trial court is to determine the practicality of apportioning fees between Defendants’ trespass claim and other claims.
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