Filed 12/19/18

                            CERTIFIED FOR PUBLICATION


                 COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                       DIVISION ONE

                                    STATE OF CALIFORNIA



LYNDA HOFFMAN,                                    D072929

        Plaintiff and Respondent,
                                                  (Super. Ct. No. 37-2015-00021084-CU-
        v.                                         OR-NC)

SUPERIOR READY MIX CONCRETE, L.P.,
et al.,

        Defendants and Appellants.


        APPEAL from a judgment of the Superior Court of San Diego County, Timothy M.

Casserly, Judge. Affirmed.

        Wright, L'Estrange & Ergastolo, Joseph T. Ergastolo, Andrew E. Schouten and Daniel

M. Doft for Defendants and Appellants.

        Goode Hemme & Barger and Jerry D. Hemme for Plaintiff and Respondent.

        Plaintiff Lynda Hoffman owns 28 acres of land (the property), a portion of which is

used to grow plants for an intended nursery. The property is adjacent to a 211-acre rock

quarry (the quarry) owned by National Quarries Enterprises LLC and operated by Superior

Ready Mix Concrete L.P. (together SRM). After Hoffman prevailed in a trespass action
against SRM, the trial court awarded her costs as the prevailing party and attorney fees under

Code of Civil Procedure1 section 1021.9, which, in relevant part, allows the prevailing

plaintiff to obtain reasonable attorney fees in any action to recover damages "to personal or

real property resulting from trespassing on lands . . . under cultivation."

       SRM appeals, contending Hoffman is not entitled to attorney fees under section

1021.9 because SRM did not trespass onto the areas of land where she was actually growing

nursery plants. Assuming we reject this argument, SRM argues that the trial court abused its

discretion by awarding Hoffman $289,153.75 in attorney fees because the award was (a) not

apportioned between her successful fee and unsuccessful non-fee causes of action, and (b)

not reduced to reflect her limited success at trial. SRM also asserts that the trial court abused

its discretion by finding that SRM's section 998 offer was invalid and less favorable than

Hoffman's trial result.

       We conclude that the trial court correctly interpreted section 1021.9 and properly

awarded Hoffman her attorney fees as the prevailing plaintiff in this trespass action. We also

reject SRM's arguments that the trial court erred when it failed to apportion or reduce

Hoffman's attorney fees award. As SRM concedes, these decisions moot its argument

regarding the validity of its section 998 argument.

                     FACTUAL AND PROCEDURAL BACKGROUND

       Following the well-established rule of appellate review, we recite the facts in the

light most favorable to the judgment. (People v. Bogle (1995) 41 Cal.App.4th 770, 775.)



1      Undesignated statutory references are to the Code of Civil Procedure.

                                              2
Because this appeal does not challenge the judgment, we provide an abbreviated account

of the facts to provide context for our later discussion.

       The Properties

       Hoffman's property is landlocked and surrounded on three sides by SRM's land,

which is a vested mining operation under the Surface Mining and Reclamation Act.

Hoffman has an easement across SRM's land to access her property and SRM has an

easement across Hoffman's property.

       Hoffman's husband purchased the property in May 2000. Hoffman's husband

grew plants as a hobby and developed a fairly substantial plant collection. The Hoffmans

purchased the property intending to use their plant collection to open a commercial

nursery and koi-growing operation on the site. The Hoffmans placed roads on the

property and installed a water well, a water storage tank, an extensive irrigation system

and fencing. From around 2001 through 2010, the Hoffmans grew a variety of plants,

including palm trees, subtropical and tropical fruit trees, and citrus trees. They also

propagated the plants by seed or cuttings to increase their inventory. In 2007 Hoffman's

husband quitclaimed the property to Hoffman. During the summer of 2010, the water

well pump on the property broke and the Hoffmans lost approximately 65 percent of their

plant inventory.

       The Lawsuit and Trial

       In June 2015 Hoffman filed this action against SRM alleging causes of action for:

(1) trespass to land, (2) private nuisance, (3) negligence, (4) negligence per se, (5) quiet

title to prescriptive easement, (6) quiet title to easement by necessity, and (7) quiet title to


                                               3
easement by implied reservation. SRM answered the complaint and filed a cross-

complaint seeking declaratory relief and to quiet title to easement by implied reservation,

and to quiet title to prescriptive easement. Hoffman asserted that SRM's trespass, which

started in 2012, damaged five areas on their property as follows:

             Area 1: Widening and reconfiguring the easement road on the
             property which blocked drainage, changed the natural water drainage
             patterns, and interfered with the operation of Hoffman's gate.

             Area 2: Constructing a desiltation basin that encroached onto the
             property by about 5,000 square feet and caused silt build-up.

             Area 3: SRM maintained gravel and/or dirt berms on the property
             above a natural ravine, which caused erosion.

             Area 4: SRM constructed a large dirt berm which encroached on the
             property in one area and caused dirt and silt runoff onto the property.

             Area 5: SRM cleared and graded along the western portion of the
             common property line and constructed a 672-foot long dirt berm
             along the common property line, which disrupted water flow and
             caused dirt and silt runoff onto the property.

          The matter proceeded to trial with the parties stipulating that the court would

decide the equitable issues raised by Hoffman's and SRM's quiet title and declaratory

relief claims and instruct the jury on its findings. The parties also agreed to dismiss their

causes of action for a prescriptive easement. Prior to instructing the jury, the trial court

decided the parties' quiet title and declaratory relief claims. It determined that Hoffman

had a 40-foot-wide right-of-way and utilities easement across the quarry, while SRM had

a 20-foot right-of-way easement across the property. It also found that, except for a

single berm, SRM's activities on the property were not within its secondary easement

rights.


                                                4
       The jury later returned a special verdict finding for Hoffman on her trespass cause

of action, but against her on the nuisance and negligence causes of action. The jury

awarded Hoffman $17,000 in compensatory damages, $0 in discomfort and annoyance

damages, and $0 in punitive damages. The trial court's judgment noted that Hoffman, in

addition to her monetary award, had a 40-foot wide nonexclusive right-of-way easement

to install electrical lines.

       Posttrial Motions

       Both parties filed a memorandum of costs. Hoffman sought costs and expert fees

she incurred throughout the entire action. SRM sought costs and expert fees incurred by

it on or after May 16, 2016, the service date of its section 998 offer. Hoffman filed a

motion to recover her attorney fees under section 1021.9 and moved to strike or tax

SRM's costs. SRM also moved to strike or tax Hoffman's costs.

       The trial court issued a tentative ruling on the motions finding that Hoffman was

the prevailing party in the action and awarded her costs. It concluded that SRM's section

998 offer was not reasonable and thus was not valid and, even if the offer were valid, that

Hoffman obtained a more favorable judgment at trial than SRM's section 998 offer. It

denied Hoffman attorney fees under section 1021.9, finding the statute inapplicable to the

facts and circumstances of this case because SRM's trespass onto the property did not

disrupt any agricultural cultivation on the property.

       The court heard oral argument, which focused on Hoffman's right to recover

attorney fees under section 1021.9. Hoffman's counsel explained how the case law did

not support the court's interpretation of section 1021.9. The trial court took the matter


                                             5
under submission, stating: "It's going to take some time, so don't expect a quick decision.

At a minimum, I will have read every single one of those cases and know them better

than you do before I make my final decision in this case."

       In its final ruling on the posttrial motions the court confirmed its rulings on the

section 998 issues. It reversed its ruling with respect to Hoffman's motion for attorney

fees, concluding that Hoffman was entitled to attorney fees as the prevailing plaintiff

under section 1021.9. The court ruled that Hoffman was entitled to all attorney fees she

requested, even though she did not prevail on every cause of action, because "all of

Plaintiff's claims were based on the same core set of facts." After a small reduction in

Hoffman's claimed costs, the court awarded Hoffman $16,178.66 in costs and

$289,153.75 in attorney fees. SRM timely appealed from the judgment.

                                       DISCUSSION

             I. THE TRIAL COURT DID NOT ERR IN AWARDING HOFFMAN HER
                                  ATTORNEY FEES

       SRM contends that the trial court erred in awarding Hoffman attorney fees under

section 1021.9 because she failed to demonstrate eligibility for such an award as a matter

of law. Specifically, SRM argues that it is undisputed that Hoffman used only six out of

28 acres for nursery purposes and that its trespass onto the property did not damage the

portion of the property that Hoffman used for cultivation, nor did the trespass damage

any of Hoffman's nursery plants. Hoffman disagrees, arguing that the trial court properly

interpreted section 1021.9 because the term "lands . . . under cultivation" refers to the




                                              6
character of the land, not the specific area of the land that was trespassed upon. We agree

with Hoffman.

       The question presented is the proper interpretation of section 1021.9, an issue that

we review de novo. (In re R. T. (2017) 3 Cal.5th 622, 627.) "Pursuant to established

principles, our first task in construing a statute is to ascertain the intent of the Legislature

so as to effectuate the purpose of the law. In determining such intent, a court must look

first to the words of the statute themselves, giving to the language its usual, ordinary

import and according significance, if possible, to every word, phrase and sentence in

pursuance of the legislative purpose. A construction making some words surplusage is to

be avoided. The words of the statute must be construed in context, keeping in mind the

statutory purpose, and statutes or statutory sections relating to the same subject must be

harmonized, both internally and with each other, to the extent possible. [Citations.]

Where uncertainty exists consideration should be given to the consequences that will

flow from a particular interpretation. [Citation.] Both the legislative history of the

statute and the wider historical circumstances of its enactment may be considered in

ascertaining the legislative intent. [Citations.] A statute should be construed whenever

possible so as to preserve its constitutionality." (Dyna-Med, Inc. v. Fair Employment &

Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)

       Section 1021.9 provides: "In any action to recover damages to personal or real

property resulting from trespassing on lands either under cultivation or intended or used

for the raising of livestock, the prevailing plaintiff shall be entitled to reasonable

attorney's fees in addition to other costs, and in addition to any liability for damages


                                               7
imposed by law." SRM does not challenge that Hoffman is the prevailing plaintiff in an

action to recover damages to real property resulting from SRM's trespasses. The sole

question is whether the trial court properly concluded that the trespass occurred on

"lands . . . under cultivation." On this issue we do not write on a blank slate.

       In Haworth v. Lira (1991) 232 Cal.App.3d 1362 (Haworth), the plaintiffs raised

horses and other animals on their property in an area zoned as an " 'equestrian district,' "

which permitted homeowners to keep horses and other large domestic animals as an

accessory to residential use. (Id. at p. 1366.) Plaintiffs prevailed in a trespass action

against a neighbor after the neighbor's dogs came onto their property and injured one of

their horses and bit one of the plaintiffs. (Id. at pp. 1365, 1368.) The appellate court held

that the trial court had discretion to award attorney fees under section 1021.9 since the

trespass occurred on lands used for the raising of livestock, holding that section 1021.9

was not limited to actions brought by commercial ranchers and farmers. (Haworth, at pp.

1368-1371.)

       In Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366 (Quarterman) the

appellate court concluded that section 1021.9 did not apply to the prevailing plaintiffs in

a trespass action after their neighbors' sanding and repainting of their house caused lead

contamination to plaintiffs' backyard garden. (Quarterman, at pp. 1368-1369.) The

Quarterman court first examined several statutes using the phrase "lands . . . under

cultivation" to determine its meaning. (Id. at p. 1373.) Based on this examination, the

Quarterman court concluded that "when the Legislature refers to land as cultivated, under

cultivation, used for cultivation, or suitable for cultivation, the ordinary import of the


                                              8
description usually is to agricultural land used for farming and growing crops, or at least

rural land as opposed to urban backyards." (Ibid., italics added.) The Quarterman court

next examined the legislative history of section 1021.9 to determine the meaning of

"lands . . . under cultivation." (Quarterman, at pp. 1373-1375.) Based on this

examination, the court concluded that the phrase "lands . . . under cultivation" "must be

read as part of the entire descriptive phrase, 'lands either under cultivation or intended or

used for the raising of livestock,' a phrase denoting two alternative uses of rural land."

(Id. at p. 1375.)

       Here, while the Hoffmans had not yet opened a nursery business on the property,

the property is zoned for agriculture and is located in a rural area characterized by

farming. Over the course of the Hoffmans' ownership of the property they had mulch,

planting mix and tree boxes delivered for their future nursery business. Before the well

pump broke in 2010, the Hoffmans had about 20,000 plants growing on the property.

Thereafter, the Hoffmans maintained their remaining plant inventory and tried to increase

it. These facts show that the property was under cultivation, a point SRM does not

challenge. (Quarterman, supra, 55 Cal.App.4th at p. 1373.) Based on these

circumstances, the fact that the Hoffmans had not yet opened their nursery business is of

no significance. (See Haworth, supra, 232 Cal.App.3d at p. 1371.)

       SRM next contends that section 1021.9 does not apply because its trespass did not

damage that portion of the property under cultivation. In other words, its trespass did not

damage the land where the Hoffmans grew their plants, or the plants themselves. The

plain language of the statute does not support SRM's argument that the trespass must


                                              9
occur to the specific portion of the land under cultivation. Rather, section 1021.9 allows

the prevailing plaintiff to recover attorney fees if the trespass caused damage to

"lands . . . under cultivation." While not directly addressed by the Quarterman and

Haworth courts, these courts focused on the character of the land as a whole.

(Quarterman, supra, 55 Cal.App.4th at p. 1375; see Haworth, supra, 232 Cal.App.3d at

pp. 1370-1371.) As Hoffman notes in her brief, "A property used for commercial uses is

a 'commercial property' even though part if it is used for non-commercial purposes."

       SRM contends that Hoffman is eligible for fees under section 1021.9 only if its

trespass against land (that was being prepared or used for agricultural purposes)

constituted the cause-in-fact of her damages. Had the Legislature intended to only award

attorney fees depending where on the plaintiff's property the trespass occurred, it could

have drafted section 1021.9 to state: "In any action to recover damages to personal or

real property resulting from trespassing on [the portion of] lands either under cultivation

or intended or used for the raising of livestock, the prevailing plaintiff shall be entitled to

reasonable attorney's fees in addition to other costs, and in addition to any liability for

damages imposed by law." (Bracketed language added.)

       If we were to accept SRM's interpretation of section 1021.9 then a hypothetical

plaintiff, after successfully showing that a defendant's trespass made the only road to its

cultivated land impassable, would not be able to recover attorney fees because the

trespass did not damage that portion of the "lands . . . under cultivation." We do not

believe that the Legislature intended this result.




                                              10
       Finally, SRM argues that the plain language of the statute distinguishes between

lands under cultivation (which must actually be under cultivation) and lands used for

raising livestock (which must either be used or intended to be used for raising livestock).

This distinction, however, does not further SRM's argument because Hoffman's land was

under cultivation. The issue is whether the defendant's trespass must cause damage to

that portion of land actually being cultivated.

       Starrh & Starrh Cotton Growers v. Aera Energy LLC (2007) 153 Cal.App.4th 583

(Starrh) supports our interpretation that fees may be awarded under section 1021.9 for

trespass on agricultural land being cultivated, even where defendant did not damage

crops themselves or interfere with agricultural operations. In Starrh, the plaintiff farmed

land next to defendant's oil field. (Starrh, at p. 589.) Plaintiff prevailed in an action

against defendant alleging subsurface trespass resulting from the migration of polluted

water produced from defendant's oil production activities into the native subsurface

groundwater underlying plaintiff's property. (Id. at pp. 588-589.) It was undisputed that

the native groundwater was not usable for drinking or other municipal purposes and was

too salty to use for irrigation of most agricultural crops. (Id. at p. 590.) The parties

disagreed, however, whether the native water was usable for some crops and whether it

had any economic value. (Ibid.) Nothing in the Starrh opinion suggests that the

subsurface trespass damaged plaintiff's crops or interfered with its farming activities.

       The trial court denied plaintiff's request for attorney fees under section 1021.9

finding that the trespass was not to " ' "lands . . . under cultivation." ' " (Starrh, supra,

153 Cal.App.4th at p. 589.) The appellate court disagreed, stating that plaintiff "has a


                                               11
right to extract the groundwater and put it to reasonable use. This is one of the bundle of

rights [plaintiff] holds as a property owner." (Id. at p. 607.) In examining the legislative

history of section 1021.9, the Starrh court noted that while the initial bill "was limited to

the harm caused by entry onto rural land by motor vehicles or by trespassers walking

upon the land through fences and gates, the ultimate version of the bill broadened the

statute's scope in order to 'enhance the ability of ranchers to sue trespassers for damages.'

[Citation.] It included any action to recover damages of any kind caused by trespass to

lands under cultivation. The Legislature's obvious concern was for the farm and ranch

communities of our state." (Starrh, at p. 608.) The Starrh court also referenced an

argument made in support of the bill that the expanded language would " 'enhance the

ability of ranchers to sue trespassers for damages, particularly in those cases where the

rancher must now either compromise a significant portion of a valid claim by suing in

small claims court . . . or by spending a major share of the recovery to pay his or her

attorney.' " (Ibid.)

       In Starrh, supra, 153 Cal.App.4th 583 it was irrelevant that the subsurface trespass

did not damage plaintiff's land or plants or that plaintiff did not presently use the native

groundwater. Rather, the relevant inquiry was whether the land was under cultivation.

Thus, the Starrh decision contradicts SRM's unsupported interpretation that, to be entitled

to an attorney fees award under section 1021.9, the trespass must cause damage to those

areas of land actually being cultivated.




                                              12
          Accordingly, we conclude that the trial court correctly interpreted section 1021.9

and properly awarded Hoffman her attorney fees as the prevailing plaintiff in this trespass

action.

     II. THE TRIAL COURT DID NOT ERR IN DECLINING TO APPORTION OR
                    REDUCE THE ATTORNEY FEES AWARD

          Assuming Hoffman is entitled to section 1021.9 attorney fees, SRM contends the

trial court abused its discretion in awarding her $289,153.75 because it (1) failed to

apportion Hoffman's fees incurred on the fee-shifting claim (trespass) from the non-fee-

shifting claims (nuisance and negligence), and (2) refused to reduce her fee award to

account for her limited success at trial. We disagree.

          A. Apportionment

          "Once a trial court determines entitlement to an award of attorney fees,

apportionment of that award rests within the court's sound discretion." (Carver v.

Chevron U.S.A., Inc. (2004) 119 Cal.App.4th 498, 505 (Carver).) " 'Attorney's fees need

not be apportioned when incurred for representation on an issue common to both a cause

of action in which fees are proper and one in which they are not allowed.' [Citation.]

'Attorneys fees need not be apportioned between distinct causes of action where

plaintiff's various claims involve a common core of facts or are based on related legal

theories.' [Citation.] Apportionment is not required when the issues in the fee and

nonfee claims are so inextricably intertwined that it would be impractical or impossible to

separate the attorney's time into compensable and noncompensable units." (Graciano v.

Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 158-159 (Graciano).)



                                               13
       Here, SRM argued to the trial court that, should it award Hoffman her attorney

fees, the fees should be apportioned to award fees only on her successful trespass claim.

The trial court rejected this argument stating that, except as to Hoffman's quiet title cause

of action, "[a]s previously discussed, all of [Hoffman's] claims were based on the same

core set of facts" and that "case authority holds allocation of fees between causes of

action is unnecessary in such circumstances . . . ."2 The trial court had previously stated:

          "In filing suit, [Hoffman] sought to put an end to [SRM's]
          unauthorized use and alteration of her land. She alleged that from
          the end of 2012 through the filing of the action, [SRM] widened and
          reconfigured a dirt road that ran through her property, changed the
          grading of the area in a way that negatively impacted surface water
          flow and damaged [Hoffman's] storm drain system, removed trees
          and vegetation, creating retention ponds, storing gravel and vehicles,
          filling a natural ravine on [Hoffman's] property with quarry waste,
          and blocking [Hoffman's] gate. These allegations formed the basis
          for each of [Hoffman's] claims.

          "While [Hoffman] did not prevail on all seven causes of action, the
          entire action and thus all seven causes of action pertained to the
          same set of facts. Success on one cause of action, combined with
          retention of a 40-foot-wide easement across the Quarry Property,
          and a ruling in her favor as to [SRM's] activities on her property,
          establishes [Hoffman] prevailed under the circumstances regardless
          of a monetary damages award significantly smaller than sought."




2       SRM contends that the "core set of facts" standard used by the trial court and
advocated by Hoffman is incorrect and that the court should have considered whether
Hoffman's tort claims were "inextricably intertwined" making apportionment impractical
or impossible. Because the trial court used the wrong legal standard, SRM claims we
must remand with instructions to reassess the issue under the correct legal standard. We
reject this argument because the standard used by the trial court is one of three related
standards that a court may use in exercising its discretion regarding the apportionment of
attorney fees. (Graciano, supra, 144 Cal.App.4th at pp. 158-159.)

                                             14
       Although SRM acknowledges that attorney fees need not be apportioned when

incurred for representation of an issue common to both successful fee and unsuccessful

nonfee claims, it argues that this case falls into that category of cases where "overlapping

fees may be denied where awarding them would 'impair legislative policies implicated by

the respective claims.' " In support of this argument, SRM relies on Cassim v. Allstate

Ins. Co. (2004) 33 Cal.4th 780 (Cassim) and Carver, supra, 119 Cal.App.4th 498.

       Cassim, supra, 33 Cal.4th 780 involved an exception to the rule providing that

each party to a lawsuit ordinarily pays its own attorney fees for insurance bad faith cases.

(Id. at p. 806.) This exception allows an insured to recover its attorney fees incurred to

compel payment of benefits due under an insurance policy as damages in an insurance

bad faith action. (Id. at pp. 806-807, citing Brandt v. Superior Court (1985) 37 Cal.3d

813.) Accordingly, apportionment was necessary because the plaintiff in Cassim could

recover attorney fees for work done to obtain benefits under the insurance policy, but

could not recover fees for work done on a tort cause of action for bad faith. (See Cassim,

at pp. 807-813.)

       Carver, supra, 119 Cal.App.4th 498 was an action for violation of the Cartwright

Act (Bus. & Prof. Code, § 16720 et seq.), fraud, and breach of contract. (Id. at p. 501.)

Defendant prevailed and moved for attorney fees, but under the Cartwright Act only a

prevailing plaintiff could recover attorney fees. (Carver, at p. 503.) The trial court

declined to award attorney fees that related exclusively to or inextricably overlapped

Cartwright Act issues and apportioned the fees. (Carver, at p. 503.) The appellate court

affirmed, holding that "the unilateral fee-shifting provision of [Business and Professions


                                             15
Code] section 16750, subdivision (a) prohibits an award of attorney fees for successfully

defending Cartwright Act and non-Cartwright Act claims that overlap. To allow

[defendant] to recover fees for work on Cartwright Act issues simply because the

statutory claims have some arguable benefit to other aspects of the case would

superimpose a judicially declared principle of reciprocity on the statute's fee provision, a

result unintended by the Legislature, and would thereby frustrate the legislative intent to

'encourage improved enforcement of public policy.' " (Carver, at p. 504.)

       Cassim, supra, 33 Cal.4th 780 and Carver, supra, 119 Cal.App.4th 498 are

inapposite as neither case addressed whether attorney fees need to be apportioned

between successful fee and unsuccessful nonfee claims to a prevailing plaintiff under a

unilateral fee-shifting statute. Although SRM argues that apportionment is mandatory

because Hoffman's nonfee claims did not further section 1021.9's purposes, it cited no

authority to support this contention, and we have located no published authority

addressing this issue under section 1021.9. We also examined case law addressing

several other unilateral fee shifting statutes regarding fee apportionment, namely: Labor

Code section 1194; Business & Professions Code section 16750, subdivision (a); Welfare

and Institutions Code sections 15657, subdivision (a) and 15657.5, subdivision (a); and

Civil Code sections 54.3 and 52, subdivision (a). We located no published cases

requiring apportionment under these statutes.

       Given this judicial landscape and SRM's failure to identify how awarding

Hoffman her attorney fees on unsuccessful nonfee claims would impair a legislative

policy, we conclude that the trial court did not err when it applied the general rule stated


                                             16
in Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124 that "[a]ttorney's fees need not

be apportioned when incurred for representation on an issue common to both a cause of

action in which fees are proper and one in which they are not allowed." (Id. at pp. 129-

130.)

        Hoffman's complaint shows that her trespass, nuisance and negligence causes of

action were all based on the same set of facts.3 Moreover, the jury instructions identified

the same measure of damages for each cause of action and the special verdict form asked

the jurors to answer just one set of damages questions regardless of which cause of action

prevailed. Finally, Hoffman's motion for attorney fees included a declaration from her

counsel stating that the trespass, nuisance and negligence causes of action were based

upon the same set of core facts and that professional services were so intertwined among

these claims that it was impractical to separately bill for each cause of action. Finally, the

record on appeal does not contain the reporter's transcripts for the entire trial. Thus, we

cannot ascertain the amount of trial time spent addressing each of the three causes of

action and, absent a record demonstrating error, the order is presumptively correct. (See

Denham v. Superior Court (1970) 2 Cal.3d 557, 564.)




3       SRM argues that Hoffman's tort causes of actions were not based on the same core
set of facts because the nuisance and negligence claims required Hoffman to prove
additional facts beyond those required for her trespass claim. This argument, however,
confuses the elements of the three causes of action with the facts underlying these claims.
The facts underlying each cause of action were identical.

                                             17
       B. Reduction

       SRM next asserts that the trial court abused its discretion when it refused to reduce

Hoffman's requested fees in light of her limited success at trial. SRM claims that the trial

court was required to first determine Hoffman's lodestar figure on her successful claims

and then consider her relative success in achieving her objective on overlapping claims

and reduce the amount if appropriate. Relying on Mann v. Quality Old Time Service, Inc.

(2006) 139 Cal.App.4th 328 (Mann) and San Diego Police Officers Assn. v. San Diego

Police Department (1999) 76 Cal.App.4th 19 (San Diego Police Officers Assn.), SRM

argues that we should reverse the attorney fee award and remand with instructions that

the trial court exercise its discretion under the " 'correct legal standard.' "

       In evaluating the amount of attorney fees awarded by the trial court our review is

deferential as "the 'experienced trial judge is the best judge of the value of professional

services rendered in his court, and while his judgment is of course subject to review, it

will not be disturbed unless the appellate court is convinced that it is clearly wrong.' "

(Serrano v. Priest (1977) 20 Cal.3d 25, 49.) " 'The trial court may make its own

determination of the value of the services contrary to, or without the necessity for, expert

testimony. [Citations.] The trial court makes its determination after consideration of a

number of factors, including the nature of the litigation, its difficulty, the amount

involved, the skill required in its handling, the skill employed, the attention given, the

success or failure, and other circumstances in the case.' " (PLCM Group v. Drexler

(2000) 22 Cal.4th 1084, 1096.) "[T]here is no requirement that the trial court make an

award of attorney fees in an amount that is commensurate with or in proportion to the


                                               18
degree of success in the . . . litigation." (Bernardi v. County of Monterey (2008) 167

Cal.App.4th 1379, 1398.) We review the trial court's award of attorney fees for abuse of

discretion, which we find only if no reasonable basis for the court's action is shown.

(Citizens Against Rent Control v. City of Berkeley (1986) 181 Cal.App.3d 213, 233.)

       Here, in arguing that the trial court erred in the amount of attorney fees awarded,

SRM exclusively focuses on Hoffman's success at trial. While the success of the party

seeking fees is relevant, it is but one factor in the trial court's analysis. (PLCM Group v.

Drexler, supra, 22 Cal.4th at p. 1096.) As another court explained, " '[a] rule of

proportionality that would limit fee awards . . . to a proportion of the damages

recovered . . . is inconsistent with the flexible approach to lodestar calculations that takes

into account all considerations relevant to the reasonableness of the time spent.'

[Citation.] '[W]e do not reflexively reduce fee awards whenever damages fail to meet a

plaintiff's expectations in proportion to the damages' shortfall.' " (Harman v. City and

County of San Francisco (2007) 158 Cal.App.4th 407, 421.) Additionally, we do not

agree with SRM's contention that the trial court applied the wrong legal standard. In

making this argument SRM cites Mann, supra, 139 Cal.App.4th 328 and San Diego

Police Officers Assn., supra, 76 Cal.App.4th 19.

       In San Diego Police Officers Assn., supra, 76 Cal.App.4th 19 the trial court

granted plaintiff's motion for attorney fees under section 1021.5. (San Diego Police

Officers Assn., at p. 24.) The trial court, however, applied a negative multiplier to reduce

the requested fees. (Ibid.) The appellate court affirmed the reduction where the record

showed that the plaintiff "had achieved very limited success; the portion of its writ


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petition on which it prevailed . . . did not involve complex issues of law; the case did not

preclude [the association's] attorneys from working on other matters and did not involve a

contingency fee; and the award of fees would ultimately be borne by the taxpayers."

(Ibid.) The San Diego Police Officers Assn. court further noted that "[t]he vast majority

of [the plaintiff's] time and effort was clearly spent on issues upon which the [defendant]

prevailed." (Ibid.)

       The Mann court reviewed an attorney fees award to prevailing defendants under

California's anti-SLAPP statute (Code Civ. Proc., § 425.16) where defendants succeeded

in striking one of four challenged causes of action. (Mann, supra, 139 Cal.App.4th at p.

333.) The Mann court stated that "[t]he fees awarded to a defendant who was only

partially successful on an anti-SLAPP motion should be commensurate with the extent to

which the motion changed the nature and character of the lawsuit in a practical way[,

including evaluation of other] relevant factors, such as the experience and abilities of the

attorney and the novelty and difficulty of the issues . . . ." (Id. at p. 345.) It concluded

that the trial "court erred in failing to reduce the attorney fees award for fees attributable

to the causes of action that remained in the litigation. Although the amount to be

awarded could not be calculated through a purely mechanical approach by allocating

particular hours to particular claims, the court should have considered the significance of

the overall relief obtained by defendants in relation to the hours reasonably expended on

the litigation and whether the expenditure of counsel's time was reasonable in relation to

the success achieved." (Ibid.) The Mann court determined that an attorney fees award




                                              20
proportionate to the success achieved in the anti-SLAPP motion would advance "the

objectives of the anti-SLAPP statute and minimizes abuses." (Mann, at p. 347.)

       As a threshold matter, Mann, supra, 139 Cal.App.4th 328 and San Diego Police

Officers Assn., supra, 76 Cal.App.4th 19 do not stand for the proposition that a statutory

attorney fees award must be proportional to the degree of success obtained in the

litigation. Additionally, neither case addressed section 1021.9 and are thus

distinguishable. As our high court has noted "every fee-shifting statute must be

construed on its own merits . . . ." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136.)

Accordingly, we disagree with SRM's contention that Mann and San Diego Police

Officers Assn. set forth the correct legal standard to evaluate a fee award under section

1021.9.

       We reviewed the legislative history for section 1021.9. Comments on the bill note

that plaintiffs suing for trespass "spend[] a major share of the recovery to pay his or her

attorney." (Assem. Com. on Judiciary, com. on Sen. Bill No. 2513 (1985-1986 Reg.

Sess.) as amended Aug. 12, 1986.) Thus, the unilateral fee award to prevailing plaintiffs

in a trespass action "enhance[s] the ability of [farmers and] ranchers to sue trespassers for

damages . . . ." (Ibid.) Here, while Hoffman's monetary recovery was modest, she

obtained a declaration of rights defeating SRM's claim that it was authorized under its

right to "secondary easements" to maintain a silt basin, gravel and dirt berms, widen the

road in excess of 20 feet, change the flow of surface water, or change the grade on its

easement. In declaring Hoffman the prevailing party and awarding her attorney fees, the

trial court acknowledged that Hoffman's "damages award [was] significantly smaller than


                                             21
sought." Nonetheless, the court did not reduce Hoffman's attorney fees award because

Hoffman achieved her primary litigation goal of protecting her property and refuting

SRM's secondary easement claims. Under these circumstances, we reject SRM's

argument that the trial court abused its discretion when it declined to reduce Hoffman's

attorney fees award.

                            III. SRM'S SECTION 998 OFFER

       A. Additional Background

       Hoffman instituted this action in June 2015. In May 2016, a few weeks before

trial, SRM served a section 998 offer that offered: (1) to grant Hoffman a right of way

easement over the existing road on the quarry property 20 feet in width, (2) to abandon

any right to an easement over the her property, and (3) to pay Hoffman $70,000 in

satisfaction of all damages, attorney fees and costs. Hoffman did not accept the offer.

       B. Analysis

       The trial court concluded that SRM's section 998 offer was not reasonable and

thus was not valid and, even if the offer were valid, it concluded that Hoffman obtained a

more favorable judgment at trial than SRM's section 998 offer. SRM claims that the trial

court erred in finding that SRM's section 998 offer was invalid and abused its discretion

in how it compared Hoffman's recovery with SRM's section 998 offer. In its reply brief,

SRM conceded that a ruling against it regarding the propriety of Hoffman's attorney fees

award moots this issue.

       Section 998 "is a cost-shifting statute which encourages the settlement of actions,

by penalizing parties who fail to accept reasonable pretrial settlement offers." (Heritage


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Engineering Construction, Inc. v. City of Industry (1998) 65 Cal.App.4th 1435, 1439.)

"If an offer made by a defendant is not accepted and the plaintiff fails to obtain a more

favorable judgment . . . , the plaintiff shall not recover his or her postoffer costs and shall

pay the defendant's costs from the time of the offer." (§ 998, subd. (c)(1).) To determine

whether the judgment obtained by a plaintiff is more favorable than an offer that

specified the amount of the offered judgment includes reasonable attorney fees and costs,

the court must add the amount of damages recovered by the plaintiff to the amount of his

or her recoverable preoffer costs (Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co.

(1999) 73 Cal.App.4th 324, 330) and the amount of preoffer attorney fees authorized by

statute (Heritage, at p. 1441), and compare that total amount to the amount of the section

998 offer.

       Assuming the validity of SRM's section 998 offer and ignoring the valuation of the

nonmonetary components of SRM's section 998 offer, SRM offered Hoffman

"$70,000.00, in satisfaction of all claims or damages, costs and expenses, attorney's fees,

and interest in the complaint and cross-complaint of this action." When Hoffman

received the offer she had already incurred $6,082.50 in preoffer costs and $93,827 in

preoffer attorney fees. Thus, when Hoffman's monetary recovery of $17,000 is added to

her preoffer costs and fees it far exceeded SRM's $70,000 offer. Accordingly, we accept

SRM's concession and deem this issue moot.




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                                     DISPOSITION

      The judgment is affirmed. Respondent is entitled to her costs on appeal.




                                                                   NARES, Acting P. J.

WE CONCUR:



IRION, J.



DATO, J.




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