As previous posts in this series have mentioned, in California a negligently started wildfire qualifies as a trespass, allowing a property owner to recover for damages to their private property. A further protection state law provides can be found under California Code of Civil Procedure Section 1021.9. Briefly stated, if someone trespasses on “land either under cultivation or intended or used for the raising of livestock”, and the landowner is able to prove their case in court, they are entitled to recover reasonable attorney’s fees on top of any damages caused by the trespass itself.
This is no small consideration. Attorney fees in complex litigation can quickly reach into seven-digit territory.
While the statute seems simple enough to understand, in practice it can become confusing. “Livestock” has been generally defined as “any cattle, sheep, swine, goat, or horse, mule, or other equine”. Alternatively, livestock has been defined as follows:
· Domestic animals and fowls that are kept for profit or pleasure
· And that are capable of being confined within boundaries without seriously impairing their utility
· And that do not normally intrude on others’ land in such a way as to harm the land or growing crops
Bees have also been considered as falling under this category.
The takeaway here is that while this statute may not come into play where a pet cat or dog has been lost, there are many kinds of animals this statute is designed to protect.
“Land under cultivation” is generally understood as land used for farming and growing crops, as opposed to urban backyards. In general, court cases have interpreted CCP 1021.9 to apply to land intended for the raising of livestock. The evidence available in each individual case will play a role in determining what the property was likely used for. The prior existence of barns, pens, or other agricultural equipment will strengthen the likelihood of statutory protection.
Another key idea is that it is the intended use of the land that matters in court. Even if the land was not being actively used for an agricultural purpose at the time of a fire, the statute still applies.
There are gray areas to be considered. A case may involve animals like chickens or rabbits that are capable of being kept in relatively urban confines. In these instances, the applicability of the statute may hinge on whether the animals were being kept for breeding purposes, or merely for personal reasons.
A final consideration on this topic is that this statute was not written with household pets in mind. Of course, one of the tragedies of the recent fires is that so many pets either perished or went missing. Heroic efforts have been made to find lost pets and reunite them with their owners. However, where such a reunion has not been possible, recovery is still possible as part of a plaintiff’s larger emotional distress claim.