County of Alameda v. Ottovich
Filed 6/17/13
County of Alameda v. Ottovich CA1/3
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
THREE
COUNTY OF
ALAMEDA,
Plaintiff and Respondent,
v.
HARVEY G.
OTTOVICH,
Defendant and Appellant.
A133891
(Alameda County
Super. Ct. No.
HG04147613)
Appellant
Harvey G. Ottovich appeals from a trial court order awarding respondent the
County of Alameda (County), among other things, $59,052.90 in attorney fees and
$100,200 in demolition costs that were incurred after the County won an action
against appellant for nuisance, trespass
and quiet title. For reasons set
forth below, we reverse the award of attorney fees and in all other regards
affirm the trial court’s judgment.
FACTUAL AND
PROCEDURAL BACKGROUND
This
appeal is the latest chapter in a long running legal battle between the parties
arising out of appellant’s encroachment onto a right of way in the Alameda
County Niles Canyon Transportation Corridor purchased by the County from Union
Pacific Railroad in 1997. Since well
before the time of this purchase, appellant has owned the property located at
37255 Mission Boulevard in Fremont, which is adjacent to the County’s property.
The
County filed this action against appellant in March 2004 after he ignored a
March 11, 2004 request to remove material and structures on his property
that were encroaching onto the County’s property. A default judgment was entered in favor of
the County on June 9, 2005.
Pursuant to this judgment, appellant was ordered to remove any and all
encroachments on the County’s property within 90 days. The County, in turn, was authorized to seek
further relief from the court if appellant failed to comply with the judgment
within 90 days, and to recover “reasonable and necessary attorney’s fees
incurred . . . in securing compliance with the Court’s orders.â€
On
August 31, 2010, when appellant still had not obeyed the June 2005
judgment requiring him to remove the encroachments, the County moved for a
permanent injunction that would permit the County to remove them itself and to
recover the costs incurred to do so. The
trial court granted this motion on September 13, 2010, thereby authorizing
the County to remove the encroachments and ordering appellant to “pay the
County all of [its] actual costs incurred removing the Encroaching Structures,
including but not limited to reasonable and necessary attorney’s fees incurred
by the County in securing compliance with the Court’s orders.â€
Thereafter,
on February 24, 2011, the trial court issued a writ of possession
authorizing the County to demolish the encroaching structures. The writ of possession was returned by the
Sheriff on October 4, 2011.
name="_ftnref1" title="">[1]
On
April 6, 2011, appellant filed a motion to vacate the September 13, 2010
order for improper notice, accompanied by a document entitled “Ex Parte
Application and Relief to Stay County Demolition and Allow Defendant to Perform
Demolition.†The trial court denied
appellant’s motion and application on April 13, 2011 following a hearing
and, on the same day, the County demolished the encroaching structures.
On
July 26, 2011, the County filed a motion for costs and fees requesting a
total amount of $165,426.84. This amount
included $59,052.90 in attorney fees, $100,200 in demolition costs, $780 in
debris removal costs, $700.14 in approved security costs for County Sheriff
services, and $3,125 in staff time costs for the Public Works Agency. Following extensive briefing and a contested
hearing, the trial court granted the County’s motion in full on
October 13, 2011. This timely
appeal of the October 13, 2011 order followed.
DISCUSSION
Appellant
raises two issues on appeal. First,
appellant contends the trial court erred as a matter of law by awarding the
County attorney fees outside the scope of the relevant court orders, which
permitted only those fees incurred by the County to enforce the judgment. Second, appellant contends the trial court
abused its discretion by awarding the County an unreasonable and excessive sum
to cover its alleged costs to demolish the encroaching structures.
The
County responds that the trial court properly awarded the attorney fees as
costs incurred by the County to enforce the judgment pursuant to Code of Civil
Procedure section 685.040 and as authorized by two lawful court orders allowing
recovery of, among other costs, “reasonable and necessary attorney’s fees
incurred by [the County] in securing compliance with the Court’s orders.â€
appellant waived the right to challenge the court’s underlying legal authority
to make the attorney fee award by not raising his challenge below, and that the
sole legal issue is whether “legal work performed during
part of ‘enforcing’ the order.†Finally,
the County contends the award of $100,200 in demolition costs was reasonable
and within the scope of the trial court’s broad discretion.
I. Standard of Review.
We
review de novo the legal issue of whether the attorney fees awarded to the
County were valid pursuant to section 685.040 as within the scope of the
relevant court orders permitting recovery of “reasonable and necessary
attorney’s fees incurred by [the County] in securing compliance with the
Court’s orders.†(Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142 [“de novo review of
. . . a trial court [attorney
fee] order is warranted where the determination of whether the criteria for an
award of attorney fees and costs in [a particular] context have been satisfied
amounts to statutory construction and a question of lawâ€]; see also
927, 934.) We review the amount of the
attorney fee award, if recoverable, for abuse of discretion. (Foundation
for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th
1375, 1388 [“the appropriate test for abuse if discretion is whether the trial
court exceeded the bounds of reasonâ€].
See also Carver v. Chevron U.S.A.,
Inc., supra, 97 Cal.App.4th at p. 142). The abuse-of-discretion standard likewise
applies to appellant’s challenge of the amount awarded to the County to cover
its demolition costs. (
97 Cal.App.4th at p. 142.)
II. Award
of Attorney Fees and Costs.
A prevailing party in an
action or proceeding is generally entitled to recover costs. (§ 1032, subd.
(b).) However, attorney fees are
included as costs only “when authorized by contract, statute, or law.
(§ 1033.5, subd. (a)(10)(A), (B), & (C).)â€
v. Tanner (1997) 57 Cal.App.4th 419, 422.)
Here,
the purported basis of the trial court’s award of attorney fees to the County
is section 685.040, which provides as follows: “The judgment creditor is
entitled to the reasonable and necessary costs of enforcing a judgment.
Attorney’s fees incurred in enforcing a judgment are not included in costs
collectible under this title unless otherwise provided by law. Attorney’s fees
incurred in enforcing a judgment are included as costs collectible under this
title if the underlying judgment includes an award of attorney’s fees to the
judgment creditor pursuant to subparagraph (A) of paragraph (10) of subdivision
(a) of Section 1033.5.†Section 1033.5,
subdivision (a)(10)(A), as mentioned above, provides that attorney fees may be
awarded as costs when authorized by contract.
(§ 1033.5, subd. (a)(10)(A).)
Thus, unless otherwise provided by law, “there are two requirements
before a motion for an award of postjudgment attorney fees may be awarded as
costs [pursuant to § 685.040]:
(1) the fees must have been incurred to ‘enforce’ a judgment; and
(2) the underlying judgment had to include an award for attorney fees
pursuant to Code of Civil Procedure section 1033.5, subdivision (a)(10)(A),
awarded when authorized by contract.â€
(Jaffe v. Pacelli, supra, 165
Cal.App.4th at p. 935 [fn. omitted] [italics added].)
Before
considering these requirements in the context of the matter at hand, we must
address the threshold issue of forfeiture.
As stated above, the County contends we should decline on forfeiture grounds
to address the underlying validity of the attorney fee award because the only
issue raised by appellant on appeal is whether legal work performed during
post-judgment proceedings falls within the scope of the judgment awarding the
County “reasonable and necessary attorney’s fees incurred . . . in
securing compliance with the Court’s orders.â€
We, however, disagree. While
appellant could indeed have presented a more coherent, straightforward argument
for challenging the attorney fee award as contrary to the statutory limits
imposed on such awards under sections 685.040 and 1033.5, subdivision (a)(10),
we nonetheless agree with him that the issue was preserved.
Nor
does appellant’s failure to appeal the June 2005 judgment hinder our authority
to consider the validity of the $59,052.90 in attorney fees that were awarded
October 13, 2011 after the County filed its memorandum of costs and fees. Case law holds that an order determining a party’s entitlement to attorney
fees, but not the amount of such fees, is interlocutory even if the attorney
fee order is contained in an otherwise appealable judgment. “It follows that, in an appeal from a
postjudgment order awarding attorney’s fees, we may review the entitlement
to, as well as the amount of, the fees awarded.†(P R Burke Corp. v. Victor Valley Wastewater
Reclamation Authority (2002)
98 Cal.App.4th 1047, 1055; see also City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485,
492.) The reason is this: “[A] provision of the judgment that the
[prevailing party] ‘shall be entitled to . . . attorney’s fees’ [i]s
nonfinal. Further judicial action [i]s
necessary to determine the extent of the [party’s] entitlement to
attorney’s fees. Indeed, the trial court could still . . . rule[]
that the amount of fees to which the [party] [i]s entitled [i]s zero
. . . . This [does] not detract from the judgment’s appealability in
other respects. [Citation.] In an appeal solely from the judgment, however, we
[cannot] . . . review[] the entitlement to attorney’s fees as long as
the amount of fees remain[s] undetermined.â€
(P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority, supra, 98 Cal.App.4th at p. 1054.)
Returning
now to the merits, we first note there is no contention the County is entitled
to recover attorney fees as costs pursuant to a contract between the
parties. (See § 685.040;
§ 1033.5, subd. (a)(10)(A).)
Rather, the County contends appellant is liable for the attorney fee
award pursuant to section 685.040 and section 1033.5, subdivision (a)(10)(C),
because the June 2005 judgment, which has long since been final, and the
subsequent September 13, 2010 enforcement order are “controlling lawâ€
authorizing an award of such fees as costs.
However, we conclude the County misreads the governing statutory law.
As
our appellate colleagues in the Fourth District, Division Three, explained when
rejecting the comparable argument that a judgment of dissolution in a
marriage case was controlling “law†for the purposes of awarding attorney fees
under section 1033.5, subdivision (a)(10)(C): “The Legislature amended section 1033.5 in 1993, permitting a
court to award attorney fees as costs when authorized by law. . . .
[¶] Prior to the 1993 amendment, section
1033.5 allowed for the recovery of fees pursuant only to contract or
statute. Many courts nevertheless awarded fees pursuant to the common fund and
substantial benefit theories. [Footnote
omitted.] In 1993, the State Bar Conference
of Delegates proposed Resolution No. 6-25-92 suggesting the ‘recategori[zation
of those] attorneys’ fees recoverable under a judicial precedent as a cost item
. . . .’ (State Bar Conf. of Delegates Res. No. 6-25-92, from the
legis. bill file of the Sen. Com. on Judiciary on Assem. Bill No. 58 (1993-1994
Reg. Sess.).) Its purpose was to allow attorney fee awards based on case law to
be recovered as costs. (Letter from Assemblyman Steven Peace to Governor Pete
Wilson (Sept. 2, 1993) regarding Assem. Bill No. 58.) As Assemblyman Peace
noted in his letter, the amendment did
not change existing law, it simply codified it.†(Tanner
v. Tanner, supra, 57 Cal.App.4th at p. 423 [italics added] [
supported the attorney fee award as “fees authorized by law†pursuant to section
1033.5, subdivision (a)(10)(C). (
at pp. 422-423.)
Applying
this reasoning here, we likewise reject the County’s argument that the attorney
fee award in this case was “provided by law†for purposes of section 685.040
because the fees were “authorized by law†(§ 1033.5 (a)(10)(C)) in the form of
two lawful court orders binding on the parties.
As Tanner explains, because
the fee award was not authorized by the “common fund,†“substantial benefit†or
other case-law derived theory, the award does not meet the “authorized by lawâ€
requirement set forth in section 1033.5, subdivision (a)(10)(C). As such, the attorney fees in this case
should not have been allowable as costs incurred by the County to enforce the
court’s judgment or orders pursuant to section 685.040. (See Tanner v.
Tanner, supra, 57 Cal.App.4th at p. 423. Cf. Jaffe
v. Pacelli, supra, 165 Cal.App.4th at pp. 934-935 [holding that,
pursuant to section 685.040, the judgment creditor was entitled to recover
attorney fees incurred in enforcing the underlying judgment because such
recovery was authorized by a valid contract between the parties for purposes of
section 1033.5, subdivision (a)(10)(A)].)
Thus,
because we find invalid the trial court’s purported legal basis for awarding
attorney fees to the County as costs incurred to enforce the judgment pursuant
to section 685.040, the attorney fee award must be reversed.
v. Tanner, supra, 57 Cal.App.4th at pp. 422-423.)
III. Award
of Demolition Costs.
With
respect to the award of demolition costs, the only issue is whether the amount,
which totaled $100,200, was reasonable.
Appellant contends this award is “exorbitant and clearly exaggeratedâ€
because the costs claimed by the County “are grossly out of step with the
benchmarks for a reasonable fair market value demolition that [he] has laid out
in his declaration.†In so contending,
appellant notes that the County’s claimed costs are not adequately supported or
itemized, and that a declaration prepared on appellant’s behalf by his brother,
Mark Ottovich, identifies “a number of licensed contractors who could do the
job for from 2% to 5% of the amount claimed by the respondent,†including one
such contractor (U.S. Demo & Hauling) that, the Ottovichs claim, would have
done the work for only $4,800.
name="_ftnref6" title="">[6]
The
County disputes appellant’s contentions, pointing out that appellant failed to
account for the added costs of its mandatory compliance with laws governing
awards of public contracts by government entities to third-party
contractors. These laws, among other
things, required the County to pay prevailing wage and to comply with certain
bid procedure and debris maintenance laws that added to its overall costs. (See
Lab. Code, §§ 1721, 1771; Pub. Contract Code, §§ 1100.7, 20122,
20128, 22032; Ala. County Admin. Code Ch. 4.38). The County also identifies evidence in the
form of the final contractor invoice and a supporting declaration from a
Specialist Clerk with the County’s Board of Supervisors that prove the
contractor, Wyllie Enterprises, was selected and the demolition was conducted
in accordance with these mandatory laws.
Specifically, this evidence reflects that the total amount of $100,200
in demolition costs included demolition of appellant’s structure, removal of
debris (including the concrete foundation), performing a “safe off†of all
utilities in the encroaching areas, extending a chain link fence across the
encroaching area, capping-off a potentially hazardous gas line, and paying for
labor and equipment.
Appellant
responds to the County’s evidentiary showing by insisting the costs incurred in
doing this work were “outside the bounds of reason.†We disagree.
The trial court acted within the scope of its broad discretion in
accepting the County’s evidence as an adequate showing of its actual and
reasonable costs of demolishing appellant’s encroachment. This is particularly true given the
additional circumstance that appellant was ordered in the first instance to
perform the demolition work himself, but he failed to do it. As such, in the absence of any real showing
that the County’s costs were improper or otherwise unjustified in light of its
legal obligations as a governmental entity engaged in this type of work, appellant’s
hindsight challenge to the costs incurred by the County must fail. (See Serrano
v. Priest (1977) 20 Cal.3d 25, 49 [no reversal absent evidence of a
manifest abuse of discretion].)
DISPOSITION
The judgment is reversed as to
the attorney fees awarded and the matter remanded to the trial court for
further consideration in light of the opinions set forth herein. In all other respects the judgment is
affirmed. The parties bear their own
_________________________
Jenkins,
J.
We concur:
_________________________
McGuiness, P. J.
_________________________
Pollak, J.
name="_ftn1" title="">[1] On March 9, 2011, five days after
the County posted the Writ and Notice to Vacate, appellant’s tenant filed a
Claim of Right of Possession. The trial
court denied this claim on March 24, 2011.
Unless otherwise stated, all
statutory citations herein are to the Code of Civil Procedure.
