Overall Result, Remand to Calculate Mainly Attorney’s Fees Recovery.
Subcontractor on a public works project won damages, penalties, prejudgment interests, costs and attorney’s fees against general contractor and general’s surety, but sub was denied fees on the payment bond even though sub prevailed. General and surety appealed, and subcontractor cross-appealed claiming that fees should be awarded against surety as well under a payment bond.
In G&W Builders, Inc. v. Bernards Bros., Inc., Case No. B226690 (2d Dist., Div. 1 Jan. 14, 2013) (unpublished), the matter basically was remanded for a fee recalculation on two grounds.
The appellate court determined that an attorney’s fees “re-fixing” was required for these reasons: (1) the prompt payment statute for public projects did justify a fee award for retention payments under Public Contract Code section 7107(d), but not for late progress payments which were barred by a one-year statute of limitations (such that the fees awarded on both retention and late progress payments had to be recalculated); and (2) sub was entitled to denied fees on the mandatory payment bond fee-shifting provision of Civil Code section 9564 (former section 3250) against surety, with nothing in this statutory fee-shifting provision indicating that an award under the prompt payment scheme somehow preempted fees under the mandatory payment bond fee-shifting provision. Remanded, to recalculate fees and some other items under both the prompt payment and payment bond fee-shifting provisions.