Rigney v. Branch

Filed 2/7/06 Rigney v. Branch CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Defendants Thomas and Karen Branch appeal from an order awarding attorneys fees to plaintiffs Eric and Leslie Rigney under Code of Civil Procedure section 1021.9.^[1] They argue the fees were unauthorized and excessive. We affirm.

BACKGROUND

Plaintiffs own agricultural property on which they cultivate lemon and avocado trees. Over 40 mature eucalyptus trees surrounded the lemon and avocado groves, acting as a windbreak. Defendants, who own the neighboring property, entered plaintiffs' land without permission and cut down the eucalyptus trees.

Plaintiffs filed a complaint containing causes of action for (1) trespass, (2) wrongful injury to timber, trees or underwood under Civil Code section 3346,^[2] and (3) negligence. They dismissed the trespass and negligence claims and proceeded to trial on the section 3346 claim. The jury found in their favor, determined that the trespass was "casual or involuntary," and awarded $50,509 in economic damages. Those damages were doubled by the court as required by section 3346, subdivision (a). Relying on section 1021.9, the court awarded plaintiffs attorneys fees in excess of $250,000.

DISCUSSION

Section 1021.9 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." Defendants argue that this provision did not apply because plaintiffs dismissed their cause of action for trespass before the trial commenced. They also claim the eucalyptus trees were not lands "under cultivation or intended or used for the raising of livestock" within the meaning of the statute. The application of the statute is an issue which we review de novo. (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1132-1133.)

We reject the argument that section 1021.9 applies only to parties who have prevailed on a cause of action for trespass. The statute extends to "any action to recover damages to personal or real property resulting from trespassing on lands." (Italics added.) In its special verdict on the Civil Code section 3346 claim, the jury found that defendants had entered plaintiffs' property without their permission and cut down their trees. "Real property" includes "[t]hat which is affixed to land," which in turn includes trees that are attached to the land by their roots. (Civ. Code, §§ 658, 660.) In cutting the trees on plaintiffs' property, defendants damaged real property in the course of a trespass. Section 1021.9 plainly applies.

Nor do we agree with the claim that the eucalyptus trees were not a part of land under cultivation. They were on a parcel of property on which lemon and avocado trees were being cultivated. Section 1021.9 does not require that the damaged or destroyed property itself be the crop under cultivation.

Defendants alternatively argue that the amount of attorneys fees is excessive because it far exceeds the amount of compensatory damages awarded by the jury. They claim it was unnecessary for two attorneys to have been present at trial and to have worked on the case and that the hours claimed for subpoenaing expert witnesses was unreasonable.

We apply the deferential abuse-of-discretion standard and conclude there is no basis for reversing the award. (PLMC Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The fees were itemized and documented. Though they exceed the amount of the verdict by a substantial sum, we have been given only a limited record on appeal and are in no position to second guess the trial court regarding the need for or quality of the legal services rendered by trial counsel.

Defendants complain that the court awarded all of the fees requested, even though two causes of action were dismissed before trial. There is nothing in the record to support their assumption that the litigation costs would have been significantly less if the trespass and negligence claims had been foregone at the beginning of the case. Defendants have the burden of establishing an abuse of discretion and have not demonstrated that the fees awarded were not attributable to the claim on which plaintiffs ultimately prevailed.

We also reject the argument that some of the fees should have been disallowed because information about attorney-client communications and work product were redacted from certain billing statement entries. The redactions were not so extensive that the court could not review the nature of the work performed. Nor do we accept the argument that $15,600 in pre-litigation costs was unnecessary when defendants have not shown the nature of the investigation efforts and negotiation attempts reflected by these fees. We likewise reject the claim that plaintiffs' counsel acted unreasonably in subpoenaing their own experts and we decline to reverse the award by the $425 attributable to this service.

Defendants argue that $12,800 in fees were incurred in pursuing a claim against former co-defendant Montecito Tree Company, which apparently cut down the trees. Plaintiffs respond that the court ruled Montecito Tree Company to be an agent of defendants as a matter of law. Absent a showing to the contrary, we cannot say the court abused its discretion in awarding those fees.

The judgment (attorney fee award) is affirmed. Costs are awarded to respondents.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

YEGAN, Acting P.J.

PERREN, J.

Steven E. Hintz, Judge

Superior Court County of Ventura

______________________________

Law Office of Alan Goldberg, Alan M . Goldberg for Plaintiffs and Respondents.

Benton, Orr, Duval & Buckingham, Terrence J. Bonham and Carol A. Woo for Defendants and Appellants.

Publication courtesy of San Diego Criminal Law Attorney ( www.mcmillanlaw.us ) and San Diego Lawyers Directory ( www.fearnotlaw.com )

^[1] Further statutory references are to the Code of Civil Procedure unless otherwise indicated.

^[2] Civil Code section 3346, subdivision (a) provides in part: "For wrongful injuries to timber, trees or underwood upon the land of another, or removal thereof, the measure of damages is three times such sum as would compensate for the actual detriment, except that where the trespass was casual or involuntary. . . the measure of damages shall be twice the sum as would compensate for the actual detriment . . . ."