Companion Post To Our Post Describing A Reversal Of Fees Based On Civil Code Section 1717.
We recently posted on McAlister Investments, Inc. v. Thomas, Case No. G056330 (4th Dist., Div. 3 Sept. 30, 2019) (unpublished), where our Santa Ana local court reversed an attorney’s fees award after concluding a declaratory relief action did not trigger a fees clause encompassing contractual breach situations. The appellate court also rebuffed that Civil Code section 3334 provided a fee entitlement basis. That provision states that, except for eminent domain or unlawful detainer matters, “[t]he detriment caused by the wrongful occupation of real property . . . is deemed to include the value of the use of the property for the time of that wrongful occupation, not exceeding five years next preceding the commencement of the action or proceeding to enforce the right to damages, the reasonable cost of repair or restoration of the property to its original condition, and the costs, if any, of recovering the possession.” (Italics added.) In rejecting the notion that attorney’s fees were recoverable under section 3334, the appellate panel concluded:
“Under California law, ‘costs’ include attorney fees only if they are specifically allowed by contract, statute, or law. (Code Civ. Proc., § 1033.5, subd. (a)(10)(A)-(C); Department of Forestry & Fire Protection v. Lebrock (2002) 96 Cal.App.4th 1137, 1140 [“a prevailing party is entitled to attorneys fees only when specifically authorized by statute, contract or law” (italics added)].) Although defendants have not cited any cases holding that attorney fees are not recoverable as costs under section 3334 (and we have likewise found none), defendants have cited many cases holding as a matter of statutory construction that ‘costs’ awardable under other cost recovery statutes do not permit the award of attorney fees. (E.g., Department of Forestry & Fire Protection, at pp. 1139-1142 [interpreting Health & Saf. Code, § 13009]; People v. United States Fire Ins. Co. (2012) 210 Cal.App.4th 1423, 1426-1428 [interpreting Pen. Code, § 1305.3].) ‘Costs’ have been construed to mean those fees and charges that are required by law to be paid to the courts or some of their officers or an amount that is expressly fixed by law as recoverable as costs. [Citation.] In contrast, the term ‘attorney fees’ has been construed to mean the consideration that a litigant actually pays or becomes liable to pay in exchange for legal representation. [Citation.] Attorney fees and the expenses of litigation, whether termed costs, disbursements, outlays, or something else, are mutually exclusive. In other words, attorney fees do not include costs and costs do not include attorney fees.” (United States Fire Ins. Co., at pp. 1427-1428.) Here, section 3334 only references ‘costs’ and does not specifically authorize attorney fees. Plaintiff accordingly could not recover attorney fees under section 3334.”