Fourth District, Division 1 Affirms Trial Court’s Discretionary Refusal to Award Fees.
Trees seem to be a popular subject of dispute between neighbors, either because they are destroyed as part of new construction or because they block scenic views of the ocean/nearby canyons. There are some special penalty and fee-shifting provisions relating to timber destruction, statutes that were considered in the next case.
Braga v. Ogden, Case No. D052381 (4th Dist., Div. 1 Feb. 17, 2009) (unpublished) was a tree dispute between defendant and her plaintiff neighbors in Coronado. Defendant wrongfully removed 30 Italian Cypress trees on plaintiffs’ property when she was constructing a new house. The trial court ordered defendant to pay plaintiffs $129,620 in compensatory damages, doubled by a statutory penalty under Civil Code section 3346(a) for “wrongful injuries to timber.” However, the lower court refused to award plaintiffs any attorney’s fees under Code of Civil Procedure section 1029.8, which allows the trial court “in its discretion” to require “[a]ny unlicensed person who causes injury or damage to another person as a result of providing goods or performing services for which a license is required” to pay the costs and attorney’s fees of the injured person. (Although the defense did not contest that the persons she hired to remove trees were not properly licensed, the trial court did exercise its discretion and refused to award fees to plaintiffs.)
Plaintiffs Braga and Wiley, and defendant Ogden all appealed. Plaintiffs argued that the trial court had abused its discretion by declining, after the jury verdict, to award them attorney’s fees.
The plaintiffs’ appeal was unsuccessful. The Fourth District, Division 1 found that the lower court had denied fees because it found the double penalty imposition was sufficient for purposes of fully compensating plaintiffs. Although acknowledging that the penalty and fee provisions are distinct in nature, there was no abuse of discretion in what the lower court did under the circumstances.
BLOG OBSERVATION—Co-contributor Mike has litigated cases where trial judges will deny or reduce fees where the plaintiff obtained both compensatory and punitive damages, based on the rationale that defendants have been punished enough. Similarly, he has seen judges deny discretionary prejudgment interest requests where a plaintiff has obtained a substantial compensatory damage recovery or compensatory and punitive damage awards.
BLOG UNDERVIEW—Contrast the discretionary fee-shifting provision discussed in this case with Code of Civil Procedure section 1021.9, which has a mandatory fee-shifting provision to the prevailing party “in an action to recover damages to personal or real property resulting from trespassing on lands either under cultivation or intended or used for the raising of livestock.” Co-contributor Mike, along with Greg Regier of the Westlake office of Jackson DeMarco Tidus & Peckenpaugh, obtained a fee award under this provision in a dispute for winning citrus farmers injured by a trespass—a case on appeal to the Second District, Division 6. We will report the results of that appeal in a future post.
Some years ago, co-contributor Marc represented the plaintiffs in a tree dispute with a defendant/neighbor in Orange County Superior Court. After a bench trial, the Hon. William F. McDonald (since retired) determined, in an unpublished opinion, that the neighbor’s stand of carob trees constituted a spite fence.
Trees
- I think that I shall never see
- A poem lovely as a tree.
- A tree whose hungry mouth is prest
- Against the sweet earth’s hungry breast;
- A tree that looks at God all day
- And lifts her leafy arms to pray;
- A tree that may in summer wear
- A nest of robins in her hair;
- Upon whose bosom snow has lain;
- Who intimately lives with rain.
- Poems are made by fools like me,
- But only God can make a tree!
- Joyce Kilmer
