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Marion v. 396 Investment Co.5/17/2005
$142,000.00."
This notwithstanding, at a January 21, 2003 hearing on the attorney fee awards, the Williamses' attorney admitted that he had spoken too quickly in stipulating to a $60,000 offset against attorney fees. Although the attorney also said he would not want to renege on the stipulation, the court and the parties then engaged in a lengthy discussion of the propriety of a $60,000 offset with respect to attorney fees. In the end, the court did not apply an offset.
As we indicated in our discussion of the offsets against damages, we are unable to determine, from the portions of the record the parties cite, the exact purpose of the $60,000 payment. It is unclear, for example, whether the payment may have been made in respect of fees incurred before Anaheim ever even became a party to the litigation. For that matter, we do not know whether Anaheim has been held liable for the payment of that $60,000 amount by way of the judgment in favor of 396. We are therefore unable to state whether or not it was error to omit to apply an offset to either the damages award or the attorney fees award. However, we are disturbed by the fact that a concession the Williamses made at one point in the proceedings, in order to gain a favorable ruling on offsets with respect to the damages award, was in effect disregarded at a later point in the proceedings, when Anaheim was then disadvantaged to make its full range of arguments. (Cf. Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 182-183; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743.) Although we observe that Anaheim has failed to cite any authority to the effect that the Williamses, once having argued the offset should be taken against attorney fees, were precluded from arguing to the contrary before an attorney fees award was entered, we also observe that the Williamses have carefully avoided addressing the issue at all. Both parties should address the issue on remand.
We have already stated that the Williamses' judgment is remanded for a determination of whether the $60,000 amount should be offset against the damages award. On remand the trial court shall determine, in the alternative, whether the $60,000 amount should be offset instead against the $202,000 attorney fees award. The trial court may offset the $60,000 amount against either the damages award or the attorney fees award, as and if appropriate, or may find that no offset is appropriate at all with respect to the $60,000 amount. If the court determines that a $60,000 offset should be taken against the attorney fees award, then it shall modify that award accordingly.
(11) Vista Royale's Award
As indicated previously, Vista Royale owned the common area slope located in Tract 10439. It was drawn into the litigation as a defendant no later than January 1997. It filed a complaint against 396 in June 1997. In February 1999, Vista Royale amended its complaint to add Anaheim as a defendant. Anaheim filed a cross-complaint against Vista Royale in March 1999.
In May 2000, Vista Royale entered into a settlement agreement with 396. Pursuant to that settlement agreement, Vista Royale assigned all its rights to pursue Anaheim, including its right to seek attorney fees and costs, to 396. Vista Royale's claims were thereafter pursued by 396, on Vista Royale's behalf. In the end, no effort was made to prove up damages to the slope. As 396 stated on behalf of Vista Royale, during a hearing on the attorney fees motion, the "monetary repair cost damages [became] a nonissue because the slope was . . . given to another developer and . . . repaired."
The court held Anaheim liable on an inverse condemnation theory, and awarded nomina
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