By Glen C. Hansen

In County of Sacramento v. Sandison (May 29, 2009) 174 Cal.App.4th 646, the Court of Appeal of California, Third Appellate District, held that the limitation on attorneys’ fees awards in Government Code section 25845, subdivision (c), does not apply to awards granted under Civil Code section 1717, and Code of Civil Procedure sections 1032, 1033.5, based on an attorneys’ fees provision in a written contract.

In September 2000, the County of Sacramento filed an action against James D. and Julianne Sandison, alleging that they were maintaining a second dwelling on property they owned without required conditional use and building permits.  The parties eventually entered into a written settlement agreement and stipulation for a permanent injunction. The stipulated injunction provided, among other things, that the Sandisons were to remove the structure or apply for, be granted, and adhere to a replacement building permit covering conversion of the barn structure to a second dwelling unit “as originally required.” The settlement agreement provided: “If it is necessary to enforce the Permanent Injunction, or otherwise enforce either parties’ rights regarding issues raised in this complaint against [the Sandisons], the prevailing party shall be entitled to recover reasonable attorney’s fees and costs from non-prevailing party.”

Sometime during 2007, the County attempted to enforce the injunction through contempt proceedings.  The Sandisons contended that they had substantially complied with the injunction by applying for a building permit they believed complied with the building code in effect at the time the barn structure was originally built in 1979, rather than current codes. The trial court found that the County failed to meet the burden of showing willful violation of the injunction because the language in the injunction concerning the time of the applicable building standards “is vague, ambiguous, and unartful at best.” The Sandisons then moved for an award of $44,089.50 in attorney fees for the contempt proceedings pursuant to Civil Code section 1717 based on the attorney fees provision in the settlement agreement.  The trial court awarded fees in the amount of $29,674.  The County appealed from the order awarding the attorney fees. The Court of Appeal affirmed.

On appeal, the County argued the attorneys’ fee award should be limited to the amount of reasonable attorneys’ fees incurred by the County in the action under Government Code section 25845, subdivision (c). The last sentence in that section provides:

“In no action, administrative proceeding, or special proceeding shall an award of attorney fees to a prevailing party exceed the amount of reasonable attorneys’ fees incurred by the county in the action or proceeding.”

The Court of Appeal explained that this sentence applies where the County has enacted an ordinance under the authorization of Government Code section 25845 providing for the recovery of attorney fees in any action or proceeding to abate a nuisance and a recovery is sought under the ordinance.  In this case, however, attorneys’ fees were not awarded under section 25845 or under the abatement ordinance, but under the terms of the written settlement agreement. The Court of Appeal recognized that section 25845 is not the kind of statutory provision that will override a general litigation costs entitlement under Code of Civil Procedure section 1032, for purposes of assessing attorney fees as costs under Code of Civil Procedure section 1033.5, subdivision (a). Thus, the Court of Appeal held that the trial court did not err in failing to apply the limitation of section 25845 to the contractual award of attorney fees made in this case.

Glen C. Hansen is a senior associate at Abbott & Kindermann, LLP.  For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.