
Moonlight Fire. 2007. Wikipedia. Author: kkmontandon.
Dept. of Forestry & Fire Protection v. Howell, Case Nos. C074879/C076008 (3d Dist. Dec. 8, 2017) (fully published; first posted on Dec. 6, 2017 with costs/fee discussions not published) is a case arising from the 2007 Moonlight Fires which burned 65,000 acres in Plumas County. Plaintiffs, mainly governmental agencies or affiliates, sought to recover fire suppression costs, investigation costs, and damages from defendants, mainly landowners, alleged to violate fire suppression statutes. The defense won, with the trial judge awarding multiple millions of dollars for routine costs, discovery violations, and attorney’s fees to the various prevailing defendants.
Lots of things happened on appeal, but a revisit was necessary on most of these postjudgment orders. However, the multi-millions in attorney’s fees award against Department of Forestry (Cal Fire) evaporated on appeal.
With respect to routine costs, the appellate court had to remand to apportion costs given that it found only the judgment against Cal Fire was justified on appeal. The costs award was not allocated, requiring a remand to determine the costs to be awarded against Cal Fire.
The discovery violations of over $20 million also had to be remanded because the trial judge’s award was overbroad in nature—it awarded costs and fees for work prior to the discovery violations and failed to apportion out expenses not related to the violations. Federal court broader discovery sanctioning authorities were different, and did not require a different result given the more narrow sanctions mandate under Code of Civil Procedure section 2033.
That brought the appellate court to the attorney’s fees award against Cal Fire (somewhere in the $28 million area), which fell as a matter of law. The first basis was Health and Safety Code sections 13009 and 13009.1, which provide in relevant part that the charge for fire suppression costs, rescue or emergency medical service costs constitute “a debt of that person [found liable under sections 13009 or 13009.1], and is collectible by the person, or by the federal, state, county, public, or private agency, incurring those costs in the same manner as in the case of an obligation under a contract, expressed or implied ” combined with Code of Civil Procedure section 1021.8, which provides that when the Attorney General prevails in a civil action based on sections 13009 and 13009.1, the Attorney General is to be awarded his or her “ costs of investigating and prosecuting the action, including expert fees, reasonable attorney [] fees, and costs.” From this, the trial judge concluded fees were awardable pursuant to Civil Code section 1717; however, the appellate court found that the first scheme only talked about a mechanism for collection (not a fee entitlement basis) and the second statute only related to the Attorney General (not private persons). The second basis was California’s private attorney general statute, but the Third District perceived that the defense had significant financial stakes given the potential personal exposure such that the financial burden element of Code of Civil Procedure section 1021.5 could not be met under the circumstances.