Metropolitan News-Enterprise


Monday, March 18, 2002


Page 1


Court of Appeal Rules:

Attorney Fees Not Recoverable in Dispute Over Fire Suppression Costs


By KENNETH OFGANG, Staff Attorney/Appellate Courts


The costs recoverable by the prevailing party in a suit by the state, seeking to recover fire suppression costs, do not include attorney fees, this district’s Court of Appeal has ruled.

Div. Six rejected actress and model Kelly LeBrock’s appeal from an order denying her more than $100,000 in legal fees. LeBrock successfully defended a suit by the Department of Forestry, which tried to charge her more than $230,000 for putting out a 1997 fire at her Cacuma Ranch in Santa Barbara County.

The previously unpublished Feb. 11 opinion was certified for publication Wednesday and made public late Thursday.

The state sought the money under Health and Safety Code Sec. 13009.

The statute provides, in part, that “[a}ny person . . . who negligently, or in violation of the law, sets a fire, allows a fire to be set, or . . . fails . . . to correct . . . a fire hazard . . . is liable for the fire suppression costs incurred in fighting the fire and for the cost of providing rescue or emergency medical services, and those costs shall be a charge against that person.”

Tractor Blamed

The state contended that the fire was caused by a tractor on the ranch, which—while being operated without a required spark arrester—struck a rock and caused sparks to ignite dry grass. No one was injured in the fire, but 550 acres were charred.

After winning the case, LeBrock asked for her attorney fees. Santa Barbara Superior Court Judge James B. Jennings denied the motion, finding no legal basis for recovery of attorney fees.

The trial judge was correct, Justice Stephen Perren wrote for the appellate panel. The governing statute has no attorney-fee provision, he noted.

Perren rejected the contention by LeBrock’s attorney, Neil S. Tardiff, that the statute creates a contractual relationship between fire department and property owner, thus entitling the prevailing party to attorney fees under Civil Code Sec. 1717.

Tardiff cited a provision in Sec. 13009:

“The charge [for fire suppression and related costs] shall constitute a debt of [the defendant], and is collectible by the person, or by the . . . state . . . agency, incurring those costs in the same manner as in the case of an obligation under a contract, express or implied.” 

Not Contractual

While the costs described in the statute, including those of suppressing the fire and investigating its cause, are “collectible in the same manner” as other obligations to the government, that does not make the obligation part of a contract, Perren said.

“Such language does not transform the liability into a contract, much less a contract specifically providing for attorneys fees as required under Civil Code section 1717,” the justice wrote. “…The statutory language regarding how the state may collect the costs listed is merely a procedural mechanism.  There is no contract between the parties which expressly, or even impliedly, provides for recovery of attorneys fees.”

Presiding Justice Arthur Gilbert and Justice Kenneth Yegan concurred in the opinion.

Tardiff, of Smith, Tardiff & Hayes, represented LeBrock on appeal; Deputy Attorney General Lisa A. Tillman represented the state.

The case is California Department of Forestry and Fire Protection v. LeBrock, 02 S.O.S. 1376.


Copyright 2002, Metropolitan News Company