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Buy Your Kid a Pony and Recover Attorney’s Fees

January 10, 2019

Well, kind of.

In the U.S., each side usually pays its own attorney’s fees, unless a contract or statute provides otherwise. Code of Civil Procedure section 1021.9 falls under this second exception to the general rule. It allows attorney’s fees for the prevailing plaintiff in an action to recover damages to personal or real property resulting from trespassing on lands under cultivation or intended or used for the raising of livestock.

This right to attorney’s fees isn’t limited to commercial ranchers or famers (Haworth v. Lira (1991) 232 Cal.App.3d 1362, 1368). Plaintiffs who use property to raise livestock for personal use also may recover attorney’s fees under the statute. A court has found that a landowner’s property was intended for the raising of livestock because it had been used to breed birds, dogs, and horses, as well as to raise hogs and chickens, and the property had substantial facilities for horses. (Kelly v. CB&I Constructors, Inc. (2009) 179 Cal.App.4th 442, 465.) The property was also located in a rural zone. (Ibid.) Unfortunately, your child’s backyard garden, while adorable, probably won’t cut it. (See Quarterman v. Kefauver (1997) 55 Cal.App.4th 1366, 1368-1369.)

Since you are already spending the money for a pony, you might as well build some facilities for it on your property and pick up a couple of chickens and goats, too. That way you can be in a better position to recover attorney’s fees in a trespass case, and your child gets to learn responsibility while taking care of the new menagerie.

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