LeFave v. Dimond

299 P.2d 858, 46 Cal. 2d 868, 60 A.L.R. 2d 939, 1956 Cal. LEXIS 240

• Court: California Supreme Court
• Decided: August 10, 1956
• Docket: L. A. 24014
• Status: Published

Opinions

GIBSON, C.

J.-—In a prior action defendant Dimond sought to recover possession of personal property from plaintiffs, LeFave and others. Dimond invoked the provisional remedy of claim and delivery, filing an undertaking as required by statute. (See Code Civ. Proe., §§ 509, 512.¹) After the sheriff served the papers relating to the provisional remedy, LeFave et al. furnished a redelivery bond pursuant to section 514² and, as permitted by the statute, retained possession of the property. Dimond was unsuccessful in that action, and the present suit, based on the claim and delivery undertaking, was brought by LeFave et al. against Dimond and his surety to recover attorney’s fees incurred in defending the prior action. When the matter came on for trial, the court sustained an objection to the introduction of evidence on the ground that the complaint did not state a cause of action, and LeFave et al. appeal from the ensuing judgment.

Ordinarily, fees paid to attorneys are not recoverable from the opposing party as costs, damages or otherwise, in the absence of express statutory or contractual authority. (Code Civ. Proc., § 1021; Viner v. Untrecht, 26 Cal. 2d 261, 272 [158 P.2d 3].) Section 512 of the Code of Civil Procedure, which sets forth the requirements of the undertaking to be furnished in claim and delivery, provides for the payment to the defendant “of such sum as may from any cause be recovered against the plaintiff.’’ Section 667 of the Code of Civil Procedure³ permits either the plaintiff or the defendant in a replevin action to recover judgment for the possession of the property or its value and, in addition, damages for its taking and detention. (Spencer Kennelly, Ltd. v. Bank of America, 19 Cal.2d 586, 589 [122 P.2d 552]; Nahhas v. Browning, 181 Cal. 55, 57 [183 P. 442, 6 A.L.R. 476].)

It is clear that there is no express authority for the allowance of attorney’s fees in claim and delivery, and the cases have uniformly refused to award such fees as damages in actions for the recovery of personal property. (Drinkhouse v. Van Ness, 202 Cal. 359, 380 [260 P. 869] [claim and delivery, damages sought by plaintiff]; Anglo-California Trust Co. v. Collins, 192 Cal. 315, 318 [219 P. 982] [claim and delivery, damages sought by plaintiff]; Harris v. Smith, 132 Cal. 316, 319 [64 P. 409] [damages sought by plaintiff]; Hays v. Windsor, 130 Cal. 230, 235-236 [62 P. 395] [damages sought by defendant]; Black v. Hilliker, 130 Cal. 190, 193-194 [62 P. 481] [claim and delivery, damages sought by defendant]; Holm v. Davis, 8 Cal.App.2d 328, 330-331 [47 P.2d 537] [damages sought by plaintiff]; Martland v. Bekins Van & Storage Co., 19 Cal.App. 283, 285 [125 P. 759] [damages sought by plaintiff]; see also W. R. Bradshaw & Co. v. Eggers, 27 Cal.App. 132, 134 [148 P. 961], which states that “attorneys’ fees are not recoverable as damages in actions of claim and delivery or conversion.’’)

Plaintiffs point out that attorney’s fees have been allowed where the provisional remedies of attachment and injunction were invoked, and it may be that, as a matter of policy, there is just as much reason for allowing such fees in claim and delivery as in attachment and injunction. The courts, however, have construed our statutes as authorizing the allowance of attorney’s fees incurred in procuring the dissolution of an attachment or injunction in appropriate cases where such remedies were used (Reachi v. National Auto. & Cas. Co., 37 Cal.2d 808 [236 P.2d 151] [attachment]⁴; Frahm v. Walton, 130 Cal. 396 [62 P. 618] [injunction]; Prader v. Grim, 13 Cal. 585, 586, 587-588 [injunction]; Ah Thaie v. Quan Wan, 3 Cal. 216, 217-218 [injunction]; Mason v. United States Fid. & Guar. Co., 60 Cal.App.2d 587, 593-594 [141 P.2d 475] [injunction]; see Soule v. United States Fid. & Guar. Co., 82 Cal.App. 572, 573-575 [255 P. 886] [attachment]), while, as we have seen, the cases have uniformly refused to allow attorney’s fees as costs or damages in actions to recover personal property where claim and delivery was invoked. Arguments with respect to matters of policy in this field should be directed to the Legislature.

The holding of the trial court that the complaint fails to state a cause of action is in accordance with the settled rule that fees paid to attorneys are not recoverable as damages or otherwise in the absence of express statutory or contractual authority.

The judgment is affirmed.

Shenk, J., Traynor, J., Schauer, J., Spence, J., and McComb, J., concurred.

1 Sectioix 509 of the Code of Civil Procedure provides: “The plaintiff in an action to recover the possession of personal property may, at the time of issuing the summons, or at any time before answer, claim the delivery of such property to him as provided in this chapter.”

Section 512 of the Code of Civil Procedure reads, in part: “Upon a receipt of the affidavit and notice, with a written undertaking, executed by two or more sufficient sureties, ... to the effect that they are bound to the defendant in double the value of the property as stated in the affidavit for the prosecution of the action, for the return of the property to the defendant, if return thereof be adjudged, and for the payment to him of such sum as may from any cause be recovered against the plaintiff, such officer must forthwith take the property described in the affidavit. ...”

2 Section 514 of the Code of Civil Procedure sets forth the procedure by which a defendant may require the return of the property upon giving to the officer making the service a written undertaking, executed by two or more sureties, “to the effect that they are bound in double the value of the property, as stated in the affidavit of the plaintiff, for the delivery thereof to the plaintiff, if such delivery be adjudged, and for the payment to him of such sum as may, for any cause, be recovered against the defendant. If a return of the property be not so required within five days after the taking and service of notice to the defendant, it must be delivered to the plaintiff, except as provided in section 519. ’ ’

3 Seetion 667 provides, in part, “In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or the value thereof, in case a delivery cannot be had, and damages for the detention. If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return cannot be had, and damages for taking and withholding the same. ...”

Section 627 of the Code of Civil Procedure contains similar provisions as to assessment of damages in actions for recovery of specific personal property.

4 The Eeachi case involved the attachment of property of a nonresident under section 537 of the Code of Civil Procedure, and attorney’s fees were allowed for defending this suit on its merits because it was necessary to defeat the main action in order to defeat the attachment.