Fee Entitlement Not Present; Normal Routine Prevailing Party Costs Definition Did Not Apply Based On A Pragmatic Inquiry.
In City of Ridgecrest v. Howard, Case No. F068679 (5th Dist. Mar. 5, 2015) (unpublished), defendants were ordered to abate a public nuisance on properties having alleged dilapidated equipment and other items. However, one defendant having a property interest at some time periods, after quitclaiming her property interests to her brother, settled with City under an “arrangement” saying both sides would bear their own fees and costs. However, she then moved to recover fees and costs after City voluntarily dismissed based upon the “arrangement” which was apparently contested. The lower court denied her subsequent motion for fees/costs, determinations affirmed on appeal.
The real problem was lack of a fee entitlement basis. She moved to recover fees under Civil Code section 3496, which allows fees to a prevailing party in a case where the government seeks to enjoy gambling, prostitution, alcoholic abuse, and similar situations—but none of these circumstances applied to this property case. She also moved to recoup fees and costs under Health & Safety Code section 17908.7(c)(11), which allows a prevailing party in a nuisance action to recover fees under certain circumstances. However, the subdivision (c) basis only applies to receivership proceedings, with it being undisputed she had quitclaimed her property and was not a party in the receivership phase of the matter. Defendant tried to argue that she “prevailed” under the CCP § 1032 routine costs meaning of that phrase, but the appellate court instead relied on a more pragmatic definition of the term based on case law construing other statutory fee-shifting provisions untethered to the routine cost construct.