Case Number: GC046442    Hearing Date: August 01, 2014    Dept: A

City of Sierra Madre v Hildreth

MOTION FOR ATTORNEY’S FEES

Calendar: 13
Case No: GC046442
Date: 7/18/14

MP: Plaintiff, City of Sierra Madre
RP: Defendants, Jeffrey Hildreth and Taryn Hildreth

RELIEF REQUESTED:
Order awarding $119,386 for attorney’s fees incurred to prevail on appeal of order appointing receiver.

DISCUSSION:
This case arises from the claim of the Plaintiff, City of Sierra Madre, that the Defendants have engaged in unlawful construction on their property in their conversion of a residence into a wine tasting, wine storage, and wine distribution operation. The Court (Hon.C. Edward Simpson) issued a preliminary injunction on January 24, 2011 enjoining the Defendants from violating the Plaintiff’s municipal code. In addition, the preliminary injunction required the Defendants to take action to make lawful or to remove the unlawful conditions, e.g., to obtain permits for the construction.
Plaintiff then filed a motion to appoint a receiver on the ground that the Defendants had failed to abate the violations or the public nuisance. The Court granted the motion on July 31, 2012. The Court appointed David Pasternak to be the receiver on August 20, 2012.
Defendants then filed an appeal of the order appointing the receiver. The Court of Appeal dismissed the appeal on January 17, 2014 and issued a remittitur on May 6, 2014.
The Defendants sought leave to bring a legal claim against the receiver. The Court denied this motion on November 15, 2013.
Additionally, the Defendants filed a federal action against the receiver. On September 26, 2013, the US District Court granted a judgment on the pleadings on favor of the receiver. The federal action was dismissed on October 2, 2013.

Trial is set for October 27, 2014.

This hearing concerns the Plaintiff’s motion to attorney’s fees that it incurred to prevail on the appeal of the order appointing the receiver. The Court issued the order appointing the receiver under Health and Safety Code section 17980.7(c). Under section 17870.7(c)(11), the prevailing party in an action filed pursuant to section 17980.7 shall be entitled to reasonable attorney’s fees and court costs as may be fixed by the Court.
When construing statutes, the Court’s goal is to ascertain the intent of the enacting legislative body so that we may adopt the construction that best effectuates the purpose of the law. City of Santa Monica v. Gonzalez (2008) 43 Cal. 4th 905, 919. First, the Court examines the words of the statute, “giving them their ordinary and usual meaning and viewing them in their statutory context, because the statutory language is usually the most reliable indicator of legislative intent.” Id. If the statutory language is ambiguous and susceptible of differing constructions, the Court may reasonably infer that the legislators intended an interpretation producing practical and workable results rather than one resulting in mischief or absurdity. Id. It is a fundamental tenet of statutory construction that the Courts give the statute a reasonable construction conforming to legislative intent. Id.
The Legislature used the phrase “prevailing party in an action” in section 17980.7(c)(11). This differs from discovery statutes, in which an award of attorney’s fees is authorized to the prevailing party on the motion. The Legislature’s use of the phrase “in an action” indicates that it applies to a party that has prevailed on the entire case rather than prevailed simply on a procedural step. When the Court interprets statutes, it gives meaning to each word and phrase, not simply that which counsel places in bold type.
The ordinary and usual meaning of the phrase “prevailing party in an action” is to indicate a party that has accomplished the party’s litigation goals in an action that has been resolved through the entry of a judgment or a dismissal. Further, the Court may reasonably infer that the legislature intended an interpretation that produced the practical and workable result of a motion for attorney’s fees at the resolution of the case to avoid burdening the Court with multiple motions for attorney’s fees. Also, it is reasonable to infer that the legislators added the phrase “in an action” to avoid a party seeking to use this provision to gain a tactical advantage in the litigation, e.g., to increase the cost of litigating the case, even though the other party might prevail on the entire action.
The statute at issue, section 17980.7(c)(11), expressly states that attorney’s fees are awarded to the prevailing party in the action.
In the pending case, there is no “prevailing party” in the action because the case is still an active case. The receiver has not completed the remediation of the conditions on the property or filed a final report and accounting. The trial is set for October 27, 2014. There is no grounds under section 17980.7 to issue an order awarding attorney’s fees when there is no “prevailing party” in the action.

The Plaintiff cites Sundance v. Municipal Court (1987) 192 Cal. App. 3d 268. In Sundance, the plaintiffs brought a class action suit against various governmental entities in the City and County of Los Angeles to challenge the prosecution of public inebriates under California’s public intoxication statute. The litigation resulted in a court order that significantly changed the procedures for the incarceration and treatment of public inebriates. On appeal, the Supreme Court affirmed the trial court and remanded the case for a determination whether County defendants should be enjoined from incarcerating arrestees in prearraignment jail facilities that do not offer medical screening and monitoring by trained personnel.
In addition, the trial court awarded the plaintiffs $536,000 in attorney’s fees under CCP section 1021.5. The County filed an appeal of the award of attorney’s fees. Among its arguments, the County argued that the award was premature because the Supreme Court’s opinion affirming the trial court’s ruling contemplated the possibility of further litigation, i.e., whether to enjoin the County from incarcerating arrestees in facilities that did not offer medical screening and monitoring. The Courty argued that this rendered the award of attorney’s fees inappropriate as litigation in this case might continue. The Court of Appeal rejected the argument on the ground that it had been nine years since the trial court had issued the order and awarded compensation to the plaintiffs. The Court of Appeal stated “it is high time that this matter be considered.”
The opinion in Sundance offers no support to award attorney’s fees in the pending case. In Sundance, the plaintiffs had obtained a decision in their favor on the substance of their case and the only remaining issue was the Supreme Court’s directions for a finding on whether there was a need for medical screening and monitoring in prearraignment jail facilities. In the pending case, the trial has not yet occurred.
Further, in the pending case, there are no grounds to find that it is “high time” to consider an award of attorney’s fees. The trial will occur in less than three months and the Court can then consider a motion to award attorney’s fees to the prevailing party in the action.

Finally, the Plaintiff also cited to section 17980.7(d)(1). This subsection authorizes an award on the entry of “any order or judgment” regarding a public entity’s effort to compel the property owner to correct the problems.
However, in the pending case, the Court issued the order subject to appeal, i.e., the order appointing the receiver, under section 17980.7(c). Case law holds that subsection (c)(11) applies in cases where was a receivership proceeding. City and County of San Francisco v. Ballard (2006) 136 Cal. App. 4th 381, 402. Since the order subject to appeal was the appointment of a receiver under section 17980.7(c), the authority for any award of attorney’s fees is section 17980.7(c)(11).

Therefore, the Court will deny the Petitioner’s motion for attorney’s fees because section 17980.7(c)(11) authorizes the award of attorney’s fees to the Petitioner when it is the prevailing party on the action, i.e., when the receiver has completed his duties and the receivership has been resolved. If the Petitioner is the prevailing party in the action, the Petitioner may seek attorney’s fees under section 17980.7(c)(11) at the resolution of the case.

RULING:
DENY motion for attorney’s fees.