Actual Property Damage Required to Obtain Attorney Fee Award in Trespass Action

Boundary Dispute, Legal Update, Real Estate Law, and Real Estate Titles by Simon Offord, Esq.

The recent case of Belle Terre Ranch, Inc. v. Wilson clarified that in order to recover attorney fees in a trespass on land for “cultivation” or raising livestock under Code of Civil Procedure § 1021.9, you must obtain an award for property damages.

In Belle Terre, both Plaintiff Belle Terre and Defendant Wilson were using a road. After Wilson began some renovations, Belle Terre complained that trucks using the road were becoming disruptive and damaging grapes on Belle Terre’s land. Belle Terre sued to quiet title to the road and for trespass. Belle Terre did not allege any actual injury to its property and did not present evidence on damages at trial. In addition, Belle Terre sought attorney fees under Code of Civil Procedure § 1021.9.

After hearing testimony from surveyor-expert witnesses, the Trial Court quieted title in favor of Belle Terre and granted a permanent injunction. The Trial Court also awarded $1 in nominal damages, and in turn awarded Belle Terre $116,920.00 in attorney fees. Wilson appealed, arguing that since there was no proof on property damage, the attorney fee provision in Code of Civil Procedure § 1021.9 did not apply.

The Appellate Court reversed the Trial Court’s award of attorney fees. The Court determined that the dispute was primarily one over property lines, not truly “an action to recover damages to personal or real property resulting from [trespass],” for which the law was intended. As there was no evidence of property damages, the Court refused to award attorney fees.

This decision clarified that Code of Civil Procedure § 1021.9 requires property damage in order to recover attorney fees. Nominal damages alone were not sufficient to invoke the award of attorney fees. The Court determined that the statutory language required the damages to be explicitly awarded for damages to property, not “symbolic” nominal damages. Thus, in order to recover fees, the litigants must prove some actual tangible harm to property.

I have always wanted to bring an action under this code section as it is one of the few non-contractual ways a real estate attorney can add leverage by seeking recovery of fees. However, this case proves it is critical for attorneys to understand the statutes under which they are filing suit. A review of the case suggests there may have been some property damage, and thus had Belle Terre presented evidence of such damage, the result may have been different.

Belle Terre Ranch, Inc. v. Kenneth C. Wilson (2015) 232 Cal. App. 4th 1468

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