e-Bulletin: New Case Concerning Recovery of Attorneys' Fees for City Code Enforcement Cases

On April 23, 2007, the California Court of Appeal issued a decision, City of Monte Sereno v. Padgett, that clarifies what qualifies as an “appropriate ordinance” authorizing the award of attorneys’ fees to a city in code enforcement actions.  Specifically, the court held that a city ordinance allowing for the recovery of attorneys' fees in any action to abate a nuisance must comply with Government Code Section 38773.5(b).  That section requires that any ordinance authorizing the award of attorneys’ fees be reciprocal.  That is, the ordinance must authorize an award of attorneys’ fees to either the defendant(s) or the city depending on which party prevails, rather than limiting such an award only to the city if it is the prevailing party.   

Thus, to our city clients who may seek to recover attorneys’ fees associated with any code enforcement action, we recommend that they: 

(1)  Adopt an ordinance that allows for the reciprocal recovery of attorneys fees to any prevailing party in nuisance abatement actions, rather than limiting recovery of attorneys’ fees to only the city if it prevails; or, if your city already has an attorneys’ fees provision, amend the provision, making certain that it does not limit recovery to only the city if it prevails;

(2)  Consider drafting the ordinance so that it limits recovery of attorneys’ fees to the prevailing party to those individual actions or proceedings in which the city elects, at the initiation of that individual action or proceeding, to seek recovery of its own attorneys' fees; and

(3)  Refrain from dismissing any pending code enforcement actions in which your city may seek attorneys’ fees until after the ordinance or amendment becomes operative.

If your city does not currently have an ordinance providing for the recovery of attorneys’ fees in code enforcement actions you may want to consider adopting one consistent with the ruling in Monte Sereno. Please contact your BB&K attorney to discuss the adoption of such an ordinance, or if you have any other questions pertaining to this case.

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For more details on this decision, or its implications on your agency, contact an attorney with BB&K's Municipal Law Practice Group.

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué. ©2007 Best Best & Krieger LLP