(Super. Ct. No. ED 07-2685)
The opinion of the court was delivered by: Nicholson , J.
P. ex rel. Dept. of Transp. v. Scotti CA3
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Daniel J. Scotti, a defendant in an eminent domain action now settled and dismissed, claims he is entitled to an award of attorney fees pursuant to Code of Civil Procedure section 1268.610, subdivision (a), which entitles a defendant in an eminent domain action to recover litigation expenses if the action is dismissed "for any reason." The trial court denied the request for attorney fees because it found that the fees were included in the settlement between Scotti and the State of California (the State). We agree and affirm. However, we remand for a trial court determination concerning litigation expenses on appeal.
Suzzan Hunt Arnold, a right of way agent for the Department of Transportation, began negotiations with Scotti in March 2007 to acquire for highway purposes property owned by Scotti in Yolo County. In December 2007, the State filed a complaint in eminent domain (Code Civ. Proc., § 1250.310), but the negotiations continued.
After expert appraisals were done on the property, Arnold and Scotti entered into an agreement, called a right of way contract, for the State to purchase the property.*fn1 The contract included an integration clause. In section 2(A) of the contract, the section outlining the State's duties, the right of way contract provided that the State would "[p]ay [Scotti] the sum of $617,342.00, which is inclusive of interest, fees and costs, for the property or interest conveyed . . . ." In a declaration filed in this action, Arnold, referring to this provision, stated: "The fees included not only the attorney fees, but also [Scotti's] expert witness reimbursement fees."
Escrow closed on the property on May 24, 2010, and two days later the State filed a request for dismissal of the eminent domain action, which the trial court granted.
On July 6, 2010, Scotti filed a memorandum of costs in which he requested an award of $38,957.50 in costs and attorney fees. Scotti provided a proposed judgment to the court, including the $38,957.50 in costs and attorney fees, which the court signed on August 11, 2010.
However, the State moved to vacate the judgment. The trial court issued a tentative ruling granting the motion to vacate. In the tentative ruling, the court stated: "[T]he Court finds that the Right of Way Contract executed by the parties on August 18, 2009, represented the parties' agreement to settle the entire action, including attorney's fees and costs under Code of Civil Procedure section 1268.610."
Scotti did not request a hearing, so the tentative ruling, by its terms, became effective without further notice.*fn2 Thereafter, the trial court entered a revised ...