Second District, Division 6 So Rules in Unpublished Decision.
This next one should interest any litigators or courts involved in boundary line/encroachment/easement disputes, involving the breadth of the damages provision contained in Civil Code section 3334.
Section 3334 provides that in non-eminent domain cases the detriment caused by wrongful occupation of real property includes the value of the use of the property for 5 years previously, the reasonable costs of repair/restoration, and “the costs, if any, of recovering the possession.” It was this last quoted language that was issue in the next case we discuss.
What happened in Papageorge v. LaMarca, Case No. B216821 (2d Dist., Div. 6 Sept. 9, 2010) (unpublished) is that neighboring landowners tussled in property line encroachment litigation, with plaintiff prevailing in an action against defendant. Plaintiff was awarded $21,251 in damages and a total of $53,300 in costs and attorney’s fees as prevailing party (with $40,000 being the fee tally). Both sides appealed, with defendant claiming the whole thing was wrong (including the fee award) and with plaintiff arguing the fee award should have been greater.
Except to remand for a recalculation of the damages for a shorter time period, the end result was affirmed by a 3-0 decision by Justice Coffee on behalf of the Second District, Division 6.
Plaintiff indeed was entitled to fees under Civil Code section 3334. The judicial referee relied on a Miller & Starr commentary indicating that fees to successfully prosecute a wrongful occupation real property dispute were recoverable under the language we quoted above. Defendant cited no other authority to the contrary, so entitlement did exist. That was a significant hurdle cleared by plaintiff.
Plaintiff did not fare so well on the cross-appeal.
Plaintiff did not get any sympathy that her $40,000 fee award was too low. Plaintiff had requested $92,144.15, but the $40,000 award was upheld under the deferential abuse of discretion review standard applied to the amount of a fee award.