Metropolitan News-Enterprise


Thursday, January 15, 2015


Page 1


C.A. Disallows Award of Attorney Fee in Trespass Case Where Damages Were Set at $1, No Actual Injury Shown


By a MetNews Staff Writer


An award of nominal damages are “symbolic,” only, and do not provide evidence that any “damage” actually occurred, the Court of Appeal has held in stripping a plaintiff of an award of attorney fees under a statute mandating that such fees be granted where there is injury to real property.

The Fourth District’s Div. Four on Tuesday affirmed the award of $1 to the plaintiff in an action brought by one Sonoma County vineyard against another to settle a boundary line. At the conclusion of a bench trial, the court enjoined the defendant from continuing to trespass on the plaintiff’s land, awarded the dollar on a cause of action for trespass, and later determined attorney fees to be $116,920.

The fees were awarded to plaintiff Belle Terre Ranch pursuant to Code of Civil Procedure §1021.9 which provides:

“In any 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, the prevailing plaintiff shall be entitled to reasonable attorney’s fees in addition to other costs, and in addition to any liability for damages imposed by law.”

In a published portion of the opinion, San Francisco Superior Court Judge Suzanne Ramos Bolanos, sitting on assignment, said:

“Ordinarily the party awarded even nominal damages may be considered the ‘prevailing party’ for purposes of a statute or agreement awarding fees to the ‘prevailing party.’…However, the question in this case is not simply who is the prevailing party, but whether the award of nominal damages was one for ‘damages to personal or real property,’ so as to trigger Belle Terre’s entitlement to attorney fees under section 1021.9. Based on the plain language of the statute, we conclude an award of attorney fees is not available on the facts before us.”

She explained:

“In cases falling within the intent of the statute, there must be some tangible harm done to real or personal property as a result of the trespass.  The phrase “damages to personal or real property” is most reasonably read as requiring proof of some actual, compensable injury to real or personal property before an attorney fee award may be made.  Here, Belle Terre neither requested damages in its prayer, nor offered proof of any damage to its property.  Accordingly, the award of attorney fees must be reversed.”

The case is Belle Terre Ranch v. Wilson, 2014 S.O.S. 227.


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