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Department of Forestry & Fire Protection v. Howell

Court of Appeal of California, Third Appellate District

December 6, 2017, Opinion Filed

C074879, C076008


 [**735]  BUTZ, J.—A wildfire started in Plumas County on September 3, 2007, and burned approximately 65,000 acres over the course of multiple weeks. This fire, dubbed the “Moonlight Fire,” was at the center of several [***3]  actions filed by plaintiffs Department of Forestry and Fire Protection (Cal Fire), Grange [*163]  Insurance Association, and multiple landowners2 in 2009 and 2010 against defendants Eunice E. Howell, individually, and on behalf of Howell's Forest Harvesting (collectively Howell)—the designated lead defendant and respondent; Kelly Crismon; J.W. Bush; Sierra Pacific Industries (Sierra Pacific); W.M. Beaty and Associates, Inc. (Beaty); and multiple landowner defendants (landowner defendants)3 for recovery of fire suppression and investigation costs and for monetary damages.

On the eve of trial in July 2013, the consolidated actions were dismissed following a hearing on a motion for judgment on the pleadings and for presentation of a prima facie case pursuant to Cottle v. Superior Court (1992) 3 Cal.App.4th 1367 [5 Cal. Rptr. 2d 882] (Cottle)4  [**736]  after the trial court concluded Cal Fire could not as a matter of law state a claim against Sierra Pacific, Beaty, or landowner defendants, and that no plaintiff had presented a prima facie case against any defendant. After judgment was entered, the trial court awarded defendants costs without apportionment amongst plaintiffs. It also ordered Cal Fire to pay to defendants attorney fees [***4]  and expert fees [*164]  totaling more than $28 million because defendants as prevailing parties were entitled to recover attorney fees on either a contractual basis or as private attorneys general, or alternatively as discovery sanctions. The trial court additionally imposed terminating sanctions against Cal Fire. Plaintiffs appeal, challenging both the judgment of dismissal (case No. C074879) and the postjudgment awards (case No. C076008).5 Plaintiffs also request that any hearings on remand be conducted by a different judge.

In this opinion, we conclude the trial court's order dismissing the case as to all plaintiffs based on their failure to present a prima facie case at a pretrial hearing under the authority of Cottle must be reversed because the hearing was fundamentally unfair: Plaintiffs were not provided adequate notice of the issues on which they would be asked to present their prima facie case. However, we conclude the trial court did properly award judgment on the pleadings against Cal Fire. In light of these conclusions, we find the trial court's award of costs to defendants as prevailing parties as to any [***5]  plaintiff but Cal Fire is necessarily vacated, and because the trial court did not apportion costs, we must remand the costs award to the trial court for further proceedings to determine which costs Sierra Pacific, Beaty, and landowner defendants may recover from Cal Fire. Also, we conclude the trial court erred in awarding attorney fees to the prevailing parties, and that the award of monetary discovery sanctions must be reversed and remanded for further proceedings. We affirm, however, the imposition of terminating sanctions against Cal Fire. Finally, we reject plaintiffs' requests that we order any remand proceedings be heard by a different judge.

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18 Cal. App. 5th 154 *; 226 Cal. Rptr. 3d 727 **; 2017 Cal. App. LEXIS 1093 ***

DEPARTMENT OF FORESTRY AND FIRE PROTECTION et al., Plaintiffs and Appellants, v. EUNICE E. HOWELL et al., Defendants and Respondents.

Subsequent History:  [***1] The Publication Status of this Document has been Changed by the Court from Unpublished to Published December 8, 2017.

Review denied by, Request denied by Dep't of Forestry & Fire Prot. v. Howell, 2018 Cal. LEXIS 1834 (Cal., Mar. 14, 2018)

Prior History: APPEAL from a judgment of the Superior Court of Plumas County, No. CV09-00205 (lead), No. CV09-00231, No. CV09-00245, No. CV10-00255, No. CV10-00264, Leslie C. Nichols, Judge. (Retired judge of the Santa Clara Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).

United States v. Sierra Pac. Indus., 759 F. Supp. 2d 1198, 2010 U.S. Dist. LEXIS 125407 (E.D. Cal., Nov. 15, 2010)

Disposition: Affirmed in part and reversed in part.


trial court, costs, attorney's fees, terminating sanctions, discovery, sanctions, documents, prevailing party, landowner, pleadings, expenses, fire suppression, prima facie case, postjudgment, awarding, notice, flag, interview, discovery sanction, misuse, investigator, monetary sanctions, expert's fees, parties, discovery process, kindled, discovery abuse, proceedings, defendants', orders

Civil Procedure, Judicial Officers, Judges, Discretionary Powers, Governments, Courts, Authority to Adjudicate, Pretrial Matters, Motions in Limine, Exclusion of Evidence, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection, Dismissal, Involuntary Dismissals, Bill of Rights, Fundamental Freedoms, Freedom to Petition, Appeals, Standards of Review, De Novo Review, Legislation, Interpretation, State & Territorial Governments, Claims By & Against, Statutory Remedies & Rights, Local Governments, Fire Departments, Torts, Business Torts, Negligent Hiring, Retention & Supervision, Judicial Precedent, Discovery & Disclosure, Discovery, Misconduct During Discovery, Abuse of Discretion, Attorney Fees & Expenses, Basis of Recovery, Bad Faith Awards, Dismissal, Appellate Jurisdiction, Final Judgment Rule, Costs & Attorney Fees, Basis of Recovery, Remedies, Costs & Attorney Fees, Statutory Awards, Disqualification & Recusal, Grounds for Disqualification & Recusal, Personal Bias