Some of the Appeals Were Untimely; College District Award of Costs and Fee Justified in Nature.
Subcontractor sued a general contractor and community college district on an approximate $100,000 extra work claim. Subcontractor lost many of the claims through pre-trial dispositive motions and dismissed the remaining claim after general contractor paid a disputed $5,230 amount to avoid further costs. The lower court then awarded substantial fees and costs against subcontractor and in favor of general contractor/college district. (The college district was awarded $121,190 in fees, and the general was awarded $150,712.75–although the final judgment “evened up” any duplications and gave credit for any necessary offsets.)
The fee and costs awards were affirmed in Richards v. S.J. Amoroso Constr. Co., Inc., Case Nos. A129670/A130837 (1st Dist., Div. 5 Jan. 4, 2012) (unpublished).
One of the primary issues was whether the appellate court even had authority to review the fee/costs awards given that subcontractor appealed the primary judgment but failed to appeal the subsequent postjudgment orders in the fee/costs area, which involved a consideration of Grant v. List & Lathrop, 2 Cal.App.4th 993, 996 (1992)–earlier authority holding that a later postjudgment order settling the amount of fees to be paid was indeed subsumed in an earlier appeal of the first judgment.
Richards decided that DeZerega v. Meggs, 83 Cal.App.4th 28, 44 (2000) had correctly interpreted Grant as standing for the propositions that an earlier appeal of a fee entitlement judgment does subsume a later order setting the amount of the entitlement while it could not encompass a later postjudgment order where it was clear that the later order would decide everything. Judged by this interpretation, the appellate court could not review the general contractor awards because the first judgment was silent about fees and costs (which meant there needed to be a separate appeal from the later order), but could scrutinize the college district awards because there was an adjudication of fees and costs in the initial judgment which was initially appealed.
The costs award in favor of college district was sustained because the $5,230 voluntary payment was unusual in nature, invoking trial court discretion to still award costs under Code of Civil Procedure section 1032(a)(4) and Kim v. Euromotors West/The Auto Gallery, 149 Cal.App.4th 170, 183 (2007).
The college district’s favorable fee award was proper under Government Code section 1038, which allows a trial court the ability to award fees to a prevailing public entity where an action was brought without reasonable cause or a good faith belief that there was a justifiable controversy. Among other things, subcontractor’s admission during discovery that its stop notice was invalid established substantial evidence supporting the lower court’s award of fees under section 1038.