Torrance Unified School District v. Alwag

MOORE, P. J.

Respondent sued appellants to condemn certain premises for the purpose of constructing a school building thereon. After answer by appellants and the setting of a date for trial, respondent dismissed the action for reasons stated in the affidavit of John B. Anson, Deputy County Counsel, one of the attorneys for the school district.

The affidavit stated, in substance, that the action was dismissed on the motion of the “Board of Education of the Torrance Unified School District” upon its being advised by the State Division of Highways that the state planned to condemn a strip of land running through the middle of subject property for use as a portion of a through highway. Since such a use would be paramount to that contemplated by the school district, and the presence of a highway bisecting the property would render it wholly unsuitable for school purposes, respondent determined it to be impractical and fiscally unwise to pursue its proceedings under eminent domain. Subsequent to the dismissal, the state did in fact institute its action to condemn a strip through the same premises. Appellants moved the trial court to tax costs of the action and attorneys’ fees against respondent. The court ordered respondent to pay costs but left each party to bear the expense of his own attorney’s fees.

The sole issue presented here is:

Did the dismissal of the action by respondent constitute an “abandonment of the proceedings” within the meaning of Code of Civil Procedure section 1255a, thereby entitling appellants to an award of “their costs and disbursements, which shall include all necessary ex

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penses incurred in preparing for trial and reasonable attorney fees”?

Ordinarily, fees paid to attorneys are not recoverable from the opposing party as costs, damages or otherwise, in the absence of express statutory or contractual authority.

(Le-Fave

v.

Dimond,

46 Cal.2d 868, 870 [299 P.2d 858].) Therefore, appellants may recover fees only in the event the dismissal was an “abandonment of the proceedings.” Respondent contends that (1) the section should be so construed as to provide for an award to defendants of their attorneys’ reasonable charges only when the action is instituted and dismissed