South Gate Did Not Need To Pray For Fees In The Initial Cross-Complaint Not Including A Public Nuisance Cross-Claim—The First Amended Cross-Complaint Was The Trigger, Which Did Include A Public Nuisance Claim And Prayer For Fee Recovery.
After winning a summary adjudication motion on a First Amended Cross-Complaint including a public nuisance cross-claim (which was affirmed on appeal), City of South Gate moved for attorney’s fees under a South Gate local ordinance allowing for recovery of fees to a prevailing party under the ordinance—with Government Code section 38773.5 allowing for local ordinances to allow prevailing party fees in a public nuisance abatement action. The lower court awarded $99,370.50 in fees to South Gate under the ordinance, which was affirmed on appeal in City of South Gate v. South Gate Investment Group, Inc., Case No. B348540 (2d Dist., Div. 2 Sept. 30, 2026) (unpublished).
The non-prevailing, encroaching party appealed, arguing that South Gate was not entitled to fees because it did not include a public nuisance cross-claim in the initial Cross-Complaint. The technical argument was that the First Amended Cross-Complaint did not initiate the public nuisance action. The appellate court rejected that notion, agreeing with the lower court that the amended cross-complaint with the added public nuisance claim—which had a fee prayer—triggered the ability to seek fees after the amended cross-complaint was filed. Fee award affirmed.
BLOG NOTE: Co-contributor Mike was lead appellate counsel in this case.