Orange County Mun. Water Dist. v. Anaheim Union Water Co.

California Court of Appeal Jan 17, 1967 No. Civ. 8057, 8086, 8206Published

Before: Brown (Gerald)

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Holding. The court held that a defendant in an abandoned condemnation action is entitled to recover necessary trial preparation expenses incurred prior to the notice of abandonment, as well as reasonable attorney fees incurred in proceedings to establish and protect their right to such costs.

Issues

Whether trial preparation expenses are recoverable under Code of Civil Procedure section 1255a when an action is dismissed less than 40 days before the pretrial conference.
Whether attorney fees incurred in opposing a motion to tax costs are recoverable in an abandoned condemnation action.

Disposition. Affirmed in part and reversed in part.

Quotations verified verbatim against the opinion

“The exclusionary provision, therefore, does not apply. Defendant should recover its trial preparation expenses necessarily incurred.”

“Once a defendant knows the action is abandoned and there will be no trial, he cannot reasonably continue to prepare for trial.”

BROWN (Gerald), P. J.

In this condemnation action, plaintiff-condemner, Orange County Municipal Water District, appeals from a judgment awarding defendant its costs and trial preparation expenses. Defendant-condemnee, Anaheim Union Water Company, appeals from an order striking the award of trial preparation expenses, and from orders re-taxing costs and taxing a supplemental cost bill.

In July 1964, pretrial was set for October 16, 1964. On August 7, 1964, plaintiff served and filed a request for dismissal.

On November 20, 1964, the trial court granted defendant’s motion for judgment of dismissal and awarded defendant “. . . costs and disbursements which sum includes all necessary expenses incurred in preparation for trial. . . the judgment was entered November 23, 1964. Because time in which to appeal was expiring, on January 15, 1965, plaintiff filed a notice of appeal from the judgment. On February 4, 1965, the trial court granted plaintiff’s motion to strike all costs other than attorney fees. Defendant appeals from this order and from an order of March 12, 1965, awarding attorney fees of $2,500, but denying necessary trial preparation expenses.

On March 17, 1965, defendant filed a cost bill claiming attorney fees for the proceedings involving the first cost bill. The trial court, on April 20, 1965, granted plaintiff’s motion to tax this cost bill. From this order defendant appeals.

The appeals raise two questions:

Whether trial preparation expenses are recoverable.

Code of Civil Procedure, section 1255a provides: “a) The plaintiff may abandon the proceeding ... by serving on defendants and filing in court a written notice of abandonment ; . . . b) The court may, upon motion made within 30 days after such abandonment, set aside the abandonment if it

[763]

determines that the position of the moving party has been substantially changed to his detriment in justifiable reliance upon the proceeding and such party cannot be restored to substantially the same position as if the proceeding had not been commenced, c) . . . [U]pon the expiration of the time for filing such a motion, on motion of any party,

Orange County Mun. Water Dist. v. Anaheim Union Water Co.

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