Opinion
C052587
4-24-2007
ROBERT CANFIELD, Plaintiff and Appellant, v. FLORA DOOLEY et al., Defendants and Respondents.
NOT TO BE PUBLISHED
A jury returned a verdict in favor of Robert Canfield on his complaint against his landlord, Flora Dooley. On appeal, Canfield contends the trial court erred in denying Canfields request for an award of attorney fees. We shall affirm the judgment.
BACKGROUND
Plaintiff Canfields complaint against defendants Dooley and her agent, Craig Gary Jones, alleged the following: Dooley rented the apartment on her property to Audrey Haffey, who thereafter sublet it to Canfield. Jones struck Canfield in the face and jaw one day while attempting to forcibly remove Canfield from the property. Around the same time, either Dooley or Jones changed the locks on the apartment, effectively forcing Canfield out of the apartment.
The complaint purported to state five causes of action: negligence; intentional infliction of emotional distress; negligent infliction of emotional distress; wrongful eviction; and assault and battery. It sought general and punitive damages, medical expenses for treatment of Canfields injuries, lost wages, and attorney fees and costs.
By special verdict, the jury found that Dooley and/or Jones wrongfully evicted Canfield and, by changing the locks, prevented him from gaining reasonable access to the apartment. However, the jury expressly rejected Canfields claims based on assault and negligent or intentional infliction of emotional distress. It awarded him $100 in economic damages, but no noneconomic damages.
Canfield then filed a memorandum of costs, seeking costs of $ 1,820.30 but no attorney fees. Almost a month later, he filed a separate motion seeking an award of $45,570 in attorney fees pursuant to Civil Code section 789.3, which provides for an award of reasonable attorney fees to a prevailing tenant under certain circumstances, including when the landlord has willfully prevented the tenant from gaining reasonable access by changing the locks. (Civ. Code, § 789.3, subds. (b)(1), (d).)
Dooley moved to tax costs on the grounds that (1) Canfield was not the "prevailing party" within the meaning of Civil Code section 789.3, and (2) the trial court had discretion to deny attorney fees because Canfield brought an unlimited civil action but ultimately recovered a judgment within the jurisdictional limit for limited civil actions (Code Civ. Proc., § 1033).
She also opposed Canfields motion for attorney fees, arguing (1) attorney fees are an item of costs, which were not sought by his memorandum of costs that he never sought to amend, and (2) the court should exercise its discretion to deny Canfield attorney fees in light of his "miniscule" recovery.
The trial court granted the motion to tax costs, ruling: "plaintiff [Robert Canfield] obtained a net monetary judgment of $100. [He] is thus technically the `prevailing party as against Flora Dooley under Code of Civil Procedure section 1032(a)(4). The judgment in this case, however, could have been rendered in a limited civil case. (See, Code of Civil Procedure section 86(a).) The Court therefore has discretion to determine costs, as provided in Code of Civil Procedure section 1033(a). The Court finds this to be an appropriate case in which to exercise its discretion to deny [Canfield] an award of costs. The small amount of the award in absolute terms, as well as the striking disproportion between the relief sought and that actually awarded, indicate that the award of damages was, in effect, nominal, and that [Canfield] did not, in any real sense, prevail in this action."
It also denied the motion for attorney fees, explaining: "[Canfield] seeks fees under the authority of Civil Code section 789.3(d). When authorized by statute, attorneys fees are allowable (or not) as costs; this principle applies even where the applicable statute states that the court `shall award fees in a particular case. (See, Arias v. Katella Townhouse Homeowners Association, Inc. (2005) 127 Cal.App.4th 847, 852.) Ketchum v. Moses (2001) 24 Cal.4th 1122, cited by [Canfield], does not deal with the application of Code of Civil Procedure section 1033(a) to attorneys fees recoverable as costs and therefore is not authority compelling the Court to reach a different conclusion in this case. As stated above, the Court has determined that [Canfield] is not entitled to recover his costs in this action. [He] is therefore not entitled to recover his attorneys fees as an element of costs."
DISCUSSION
Canfield claims the trial court erred in concluding that it had discretion to refuse to award him attorney fees as the prevailing party. We disagree.
"`The right to recover costs exists solely by virtue of statute. [Citations.]" (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 989.) Code of Civil Procedure "[s]ection 1032 is the fundamental authority for awarding costs in civil actions. It establishes the general rule that `[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." (Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1108.) Code of Civil Procedure section 1033.5 "specifies the `items . . . allowable as costs under Section 1032." (Ibid.) Costs include "[a]ttorney fees, when authorized by any of the following: [¶] (A) Contract. [¶] (B) Statute. [¶] (C) Law." (Code Civ. Proc., § 1033.5, subd. (a)(10).)
Here, the applicable attorney fee "statute" that triggers application of Code of Civil Procedure sections 1032 and 1033.5 is Civil Code section 789.3, which states in subdivision (b)(1) that "a landlord shall not, with intent to terminate the occupancy under any lease or other tenancy or estate at will, however created, of property used by a tenant as his or her residence, willfully: [¶] . . . Prevent the tenant from gaining reasonable access to the property by changing the locks or using a bootlock or by any other similar method or device[,]" and states in subdivision (c) that a landlord engaging in any such activity shall be civilly liable to the tenant. Subdivision (d) of Civil Code section 789.3 then provides: "In any action under subdivision (c) the court shall award reasonable attorneys fees to the prevailing party. . . ." (Italics added.)
Citing the mandatory language of Civil Code section 789.3, subdivision (c), Canfield argues the trial court erred in denying a fee award. Not so.
When attorney fees are to be awarded pursuant to a statute, they are costs. (Committee for Sewer Referendum v. Humboldt Bay Wastewater Authority (1978) 77 Cal.App.3d 117, 125, fn. 7, overruled on other grounds Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 227, fn. 10; see Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 264.)
Under Code of Civil Procedure section 1033, if a plaintiff brings an unlimited civil action and recovers a judgment within the $25,000 jurisdictional limit for a limited civil action, the trial court has the discretion to deny costs to that plaintiff. Subdivision (a) of that section states that "[c]osts or any portion of claimed costs shall be as determined by the court in its discretion in a case other than a limited civil case . . . where the prevailing party recovers a judgment that could have been rendered in a limited civil case." (Steele v. Jensen Instrument Co. (1997) 59 Cal.App.4th 326, 330; see also Haworth v. Lira (1991) 232 Cal.App.3d 1362, 1371 ["a superior court judge retains the discretion to deny prevailing parties such as plaintiffs an award of costs when the verdict is below the jurisdictional maximum of the municipal court"].) This provision promotes the policy of encouraging litigants to bring their action in the appropriate forum. (Steele v. Jensen Instrument Co., supra, 59 Cal.App.4th at p. 330.)
Harmonizing (1) statutory language "mandating" an award of fees or costs to the prevailing party with (2) the policies underlying Code of Civil Procedure section 1033, courts have concluded that a trial court has discretion to deny an attorney fee or cost award based on an inadequate recovery. (See Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1814-1815 [discretion over mandatory award of contract-based fees under Civil Code section 1717]; Haworth v. Lira, supra, 232 Cal.App.3d at p. 1371 [discretion over mandatory award of fees and costs under Code of Civil Procedure section 1021.9]; Dickens v. Lee (1991) 230 Cal.App.3d 985, 988 [discretion over mandatory award of fees and costs under Civil Code section 1942.4].)
In one such case close to point, Dickens v. Lee, supra, 230 Cal.App.3d 985, two tenants asserted claims for breach of the warranty of habitability and wrongful eviction against their landlord, and an arbitrator awarded them damages of $ 2,500 and attorney fees "`to be recovered as costs . . . limited to $ 1,000.00." (Id. at pp. 986-987.) After judgment was entered on the arbitrators award, the tenants submitted a costs memorandum seeking $10,000 in attorney fees and $351 in costs. (Id. at p. 987.) The trial court awarded $1,000 in fees and costs. (Ibid.) On appeal, the tenants argued the award was incorrect under former Civil Code section 1942.4, subdivision (b), which stated tenants who establish that their landlord demanded rent when habitability requirements were not met "shall be entitled" to an award of costs and reasonable attorney fees. (Id. at p. 988.) The court rejected this contention: "[A] costs award was not mandatory. Because the judgment was one that could have been rendered in municipal court, the award of costs was discretionary. [Citation.]" (Ibid., italics omitted.)
Here, there was no error. The trial court correctly held that, given Canfields $100 recovery, it had discretion to deny his attorney fee request. Its exercise of that discretion was not error.
DISPOSITION
The judgment is affirmed.
We concur:
NICHOLSON , J.
RAYE, J.