LA MESA SPRING VALLEY SCHOOL DISTRICT v. NOBUO OTSUKA

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District Court of Appeal, Fourth District, California.

LA MESA-SPRING VALLEY SCHOOL DISTRICT, Plaintiff and Respondent, v. NOBUO OTSUKA, Defendant and Appellant.*

Civ. 6711.

Decided: October 05, 1961

David W. Hardin, San Diego, for appellant. Henry A. Dietz, County Counsel and Donald L. Clark, Deputy County Counsel, San Diego, for respondent.

The issues on this appeal are twofold, i. e., whether the costs allowed a defendant in an eminent domain proceeding, upon abandonment by the plaintiff more than 40 days prior to trial, should include: (1) Expenses incurred for services rendered by his appraisers in connection with the subject of the action, and (2) attorney's fees for services rendered before as well as after the commencement of the action, even though he had made no appearance therein.

The plaintiff, a school district and the respondent herein, brought an action to acquire property owned by the defendant Nobuo Otsuka, who is the appellant herein; filed its complaint on April 19, 1960; through its attorney, agreed in writing that the defendant need not answer its complaint until 10 days after written notice to do so; and on July 20, 1960 filed a notice of abandonment and a notice of motion for an order of dismissal. The defendant had not filed a demurrer, answer or other appearance in the proceeding, but a copy of the notice of motion was served upon his attorney. The motion was granted on August 8, 1960. Nine days later, the defendant filed a memorandum of costs asking that he be allowed $1,100 for the costs of appraisers and $3,500 for attorney's fees. An affidavit in support of these items showed that most of the services by the appraisers and the attorney had been rendered prior to the commencement of the action; covered the period from August, 1958 to the date of abandonment, i. e., July 20, 1960; indicated that the services of the attorney prior to commencement of the action, in part were directed to promoting a plan whereby the school district would forego acquisition of the defendant's property in lieu of another site, in part to the ascertainment of the value of that property, and in part to negotiations looking toward purchase of the property by the school district; further indicated that the services of the appraisers were used to determine the value of the defendant's property as a preliminary to the foregoing negotiations; and set forth facts establishing that the attorney representing the defendant in the condemnation action obtained the extension of time within which to appear therein, and continued with negotiations attempting to effect acceptance by the plaintiff of the defendant's demand. The plaintiff moved to strike both items from the cost bill on the ground that they were ‘not properly chargeable as a cost in said action’; the court granted this motion; and the defendant appeals.

The defendant's claim to costs is based on Section 1255a of the Code of Civil Procedure which provides that, upon the abandonment of an eminent domain action ‘a judgment shall be entered dismissing the proceeding and awarding the defendants their costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney fees * * * provided, however, * * * that said costs and disbursements shall not include expenses incurred in preparing for trial where the said action is dismissed forty days prior to the time set for the trial of the said action.’

The term ‘costs and disbursements,’ as used in the subject and similar code sections and statutes (see Code Civ.Proc. secs. 1021, 1032, 1033, and 1251), is limited to expenses incurred in the prosecution or defense of an action (City of Los Angeles v. Abbott, 217 Cal. 184, 194, 196, 17 P.2d 993; Miller v. Highland Ditch Co., 91 Cal 103, 106, 27 P. 536; City of Inglewood v. O. T. Johnson Corp., 113 Cal.App.2d 587, 591, 248 P.2d 536; Purdy v. Johnson, 100 Cal.App. 416, 418, 280 P. 181; Pezel v. Yerex, 56 Cal.App. 304, 311–312, 205 P. 475; Blair v. Brownstone Oil & Refining Co., 20 Cal.App. 316, 317–318, 218 P. 1022); includes only “those fees and charges which are required by law to be paid to the courts or some of their officers” (Moss v. Underwriters' Report, Inc., 12 Cal.2d 266, 274, 83 P.2d 503, 507; Wilson v. Board of Retirement, 176 Cal.App.2d 320, 322, 1 Cal.Rptr. 373; Agnew v. Cronin, 167 Cal.App.2d 154, 156–157, 344 P.2d 256; Estate of Bevelle, 81 Cal.App.2d 720, 722, 185 P.2d 90; City of Los Angeles v. Vickers, 81 Cal.App. 737, 740, 254 P. 687; Blair v. Brownstone Oil & Refining Co., supra, 20 Cal.App. 316, 317–318, 128 P. 1022); and such additional items as may be expressly designated by statute (See Code Civ.Proc. sec. 1032a); but, unless expressly designated, does not include attorney fees (City of Los Angeles v. Abbott, supra, 217 Cal. 184, 196, 17 P.2d 993; Estate of Olmstead, 120 Cal. 447, 453, 52 P. 804; Agnew v. Cronin, supra, 167 Cal.App.2d 154, 156–157, 344 P.2d 256; Estate of Bevelle, supra, 81 Cal.App.2d 720, 722, 185 P.2d 90; City of Los Angeles v. Vickers, supra, 81 Cal.App. 737, 740, 254 P.2d 687; Pezel v. Yerex, supra, 56 Cal.App. 304, 311–312, 205 P. 475), fees for expert advice or expert witnesses (Crabtree v. Houghton, 191 Cal. 33, 214 P. 846; Bathgate v. Irvine, 126 Cal. 135, 148–149, 58 P. 442; Miller v. Highland Ditch Co., supra, 91 Cal. 103, 106, 27 P. 536; Faulkner v. Hendy, 79 Cal. 265, 266, 21 P. 754; City of Los Angeles v. Vickers, supra, 81 Cal.App. 737, 738, 740), or appraisers' fees or expenses incurred in preparation for trial. Bathgate v. Irvine, supra, 126 Cal. 135, 149, 58 P. 442; Faulkner v. Hendy, supra, 79 Cal. 265, 266, 21 P. 754.

As a consequence, unless specifically allowed by statute, the defendant in the case at bar was not entitled to recover, as a part of his costs, any expenses incurred on account of the services rendered him by the appraisers. Section 1255a, which directs the payment of costs upon abandonment of an eminent domain action, does not authorize the recovery of fees for the services of experts except as those services constitute a part of the defendant's preparation for trial (See Metropolitan Water Dist. v. Adams, 23 Cal.2d 770, 773, 147 P.2d 6), and then only in the event the dismissal following the abandonment occurs less than 40 days prior to the time set for trial. As the instant case had not been set for trial, no expense of preparation was allowable to the defendant, and the order of the court striking the appraiser item from the cost bill was proper.

The claim for attorney fees also is subject to the foregoing rules. Section 1255a specifically authorizes the recovery of attorney fees, but includes them as an item of cost. The statute specifically directs that the defendant is entitled to his costs and disbursements ‘which shall in clude * * * reasonable attorney fees.’ Emphasis added. Such fees are not allowed as a separate item, but only as a part of the defendant's costs and disbursements. Consequently, the limitation generally imposed upon the recovery of costs and disbursements applies to the recovery of the attorney fees referred to in the code section. Under these circumstances, the defendant is entitled only to fees for services of his attorney which were rendered as an incident to the action. Those services rendered prior to the commencement of the action which attempted to avert acquisition of the defendant's property by the plaintiff, to ascertain its value, or to negotiate a sale thereof were not an incident to the eminent domain proceeding; were not rendered in defense of that action or in the prosecution of the defendant's claims therein; and were not a cost or disbursement incurred in that action. The purpose of Section 1255a ‘is to recompense the defendant for all expenses which he is impelled to incur by reason of the condemnor's instituting the action and his subsequent failure to carry it through to conclusion, thereby depriving defendant, at the least, of any award for his property.’ City of Inglewood v. O. T. Johnson Corp., supra, 113 Cal.App.2d 587, 591, 248 P.2d 536, 538; see City of Los Angeles v. Abbott, supra, 217 Cal. 184, 200, 17 P.2d 993. The allowance of attorney fees for the services which the defendant's attorney rendered prior to the commencement of the case at bar would not be within the purpose of the statute as stated. The rejection thereof as an item of costs was proper. However, the trial court rejected not only the defendant's claim for attorney fees in connection with services rendered prior to the commencement of the action, but also his claim for services rendered thereafter, and which properly may be considered an incident to the defense of that action. See City of Inglewood v. O. T. Johnson Corp., supra, 113 Cal.App.2d 587, 591–592, 248 P.2d 536.

The defendant was served with process and thus subjected to the jurisdiction of the court. The fact that he obtained time within which to appear in the case, rather than making an appearance within the time directed by the summons, did not affect his status as a defendant for the purpose set forth in Section 1255a which directs that, upon abandonment of an eminent domain proceeding, ‘a judgment shall be entered dismissing the proceeding and awarding the defendants their costs and disbursements' including reasonable attorney fees. (Emphasis added.) The provisions of the statute are not limited to defendants who have demurred, answered or otherwise appeared in the action. It is apparent that the defendant in the instant case employed an attorney to represent him therein; the extension of time within which to appear was obtained by his attorney; and the motion to dismiss was directed not only to the defendant but also to his attorney. Even though the defendant's nonappearance may have limited the extent of the legal services needed to protect his rights in the action, and thus limited the extent of recovery, the right of recovery was not affected thereby. He was entitled to an award of attorney fees for services actually and necessarily rendered on his behalf as an incident to the action to which he had been made a party.

The motion to strike was made and granted upon the ground that the item of attorney fees appearing in the defendant's cost bill was ‘not properly chargeable as a cost’ in the action. The record before us establishes that this objection was valid only as to part of the claim for attorney fees; that fees for services rendered before the action was commenced, under the facts of this case, were not a proper item of costs herein; but that ‘reasonable attorney fees' for services rendered on behalf of the defendant in connection with the action after it was commenced were a proper item of costs. The court struck the request for attorney fees in toto. This was error. Where part of a pleading properly may be stricken but the remainder thereof may not, a motion to strke the whole should be denied, and an order granting the same is error. Bozegian v. Bakirjian, 106 Cal.App. 368, 371, 289 P. 234; see also People v. Craig, 152 Cal. 42, 48, 91 P. 997; People v. Rodley, 131 Cal. 240, 253, 63 P. 351; Etchas v. Orena, 127 Cal. 588, 591, 60 P. 45; Bank of America Nat. Trust & Savings Ass'n v. Ames, 18 Cal.App.2d 311, 315, 63 P.2d 1208.

That part of the order striking the item of appraisers' fees from the cost bill is affirmed; that part of the order striking the item of attorney fees from the cost bill is reversed, with instructions to the trial court to determine the amount of such fees applicable to services rendered for the protection of the defendant's rights after commendement of and as an incident to the action. Neither party will recover costs on appeal.

COUGHLIN, Justice.

GRIFFIN, P. J., and SHEPARD, J., concur.