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County of Sacramento v. Sandison

May 29, 2009

COUNTY OF SACRAMENTO, PLAINTIFF AND APPELLANT,
v.
JAMES D. SANDISON ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Sacramento County, Stacy Boulware Eurie, Judge. Affirmed. (Super. Ct. No. 00AS05196).

The opinion of the court was delivered by: Blease, Acting P. J.

CERTIFIED FOR PARTIAL PUBLICATION

This is an appeal from an order awarding attorney‟s fees, pursuant to contract, in a contempt proceeding to enforce an injunction to abate a nuisance.*fn1

Appellant County of Sacramento contends the trial court erred in awarding the fees because: (1) there was no final resolution of its claim warranting the finding that respondents were prevailing parties, and (2) the amount of the award should have been limited, under Government Code section 25845 (hereafter section 25845), to the amount of attorney‟s fees incurred by the county. We disagree.

In the published portion of the opinion*fn2 we conclude that the provision of section 25845, subdivision (c), limiting the amount of the prevailing party‟s attorney fees to those incurred by the county, upon which the county relies, applies only to attorney‟s fees authorized by a county ordinance. By contrast, subdivision (b) provides that the recovery of attorney fees not predicated upon a county ordinance "shall be in addition to and shall not limit any prevailing party‟s right to recover costs pursuant to [Code of Civil Procedure] Sections 1032 and 1033.5 . . . ." Subdivision (a)(10) of Code of Civil Procedure section 1033.5 includes as costs attorney‟s fees authorized by contract.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2000 the county filed an action against James and Julianne Sandison (the Sandisons) as owners of a parcel on Freeman Road in Wilton, alleging that they were maintaining a second dwelling on the property without required conditional use and building permits. In April 2001 the parties entered into a written settlement agreement and a written stipulation for a permanent injunction. The stipulation was approved and entered by the court in January 2002.

The stipulated injunction provides that the Sandisons are:

(1) not to maintain the second dwelling unit without a conditional use permit, (2) not to take any construction actions pertaining to the structure without obtaining appropriate permits and adhering to them, and (3) 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 unit "as originally required." The settlement agreement, executed contemporaneously, provides: "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 were served with an order to show cause re contempt in violating the injunction. The matter came on for hearing on September 21, 2007. 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. They contended that the county had wrongfully rejected the application because it did not comply with current codes.

After three days of hearing, the trial court found that the county failed to meet the burden of showing willful violation of the injunction. The court said that the language in the injunction concerning the time of the applicable building standards "is vague, ambiguous, and unartful at best."

On October 29, 2007, the Sandisons filed a written motion for an award of $44,089.50 in attorney‟s fees for the contempt proceedings pursuant to Civil Code section 1717.*fn3 They relied upon the attorney‟s fees provision in the settlement agreement. The county opposed the motion. On December 26, 2007, after oral argument and supplemental briefing, the court, in a written ruling, awarded fees in the amount of $29,674. The ...


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