 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
C&G;Contractors1/30/2002
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
The only issue presented in this appeal is whether appellant, having accepted an offer to compromise pursuant to Code of Civil Procedure section 998, may recover statutory attorney fees as the prevailing party in a contract action. (Civ. Code, § 1717.) Because the section 998 offer was silent on the issue of fees and costs, appellant had a right to recover its attorney fees (Lanyi v. Goldblum (1986) 177 Cal.App.3d 181, 182), and the trial court erred in denying them. We therefore reverse and remand for a determination as to the appropriate amount of the fee award.
BACKGROUND
Appellant filed an action against respondents for breach of a written contract regarding the repair of a landslide. The complaint recited: "Pursuant to Paragraph 92 of the aforesaid contract, Plaintiff is entitled to all reasonable litigation and collection expenses, witness fees and court costs, and all attorney's fees." Appellant prayed for recovery of such expenses and fees, costs of suit, $150,565.53 in special damages, and prejudgment interest.
Before trial, respondents served a statutory offer of compromise pursuant to section 998. The section 998 offer stated, in full: "Defendants GOLDEN STATE DEVELOPERS, INC. and THE HOUSING GROUP-NORTHERN CALIFORNIA offer to have judgment taken against them and for Plaintiff, C&G;CONTRACTORS, INC., in the above-entitled action pursuant to CCP § 998 for the sum of fifty-five thousand one hundred dollars and no cents ($55,100.00). This sum represents the total amount of the judgment to be entered against defendants in this action for all of Plaintiff's claims against both of them." Appellant timely accepted this offer and filed a judgment, which recited the acceptance of the section 998 offer and ordered "that Plaintiff have and recover judgment against Defendants . . . in the sum of $55,100."
After entry of judgment, appellant filed a memorandum of costs and a motion for attorney fees and expenses of suit. Respondents opposed this motion and filed motions seeking to strike the memorandum of costs entirely or to tax costs in whole or in part. On September 28, 2000, the court granted appellant's motion for costs of suit but denied recovery of attorney fees. The court continued the hearing on respondents' motion to tax costs until October 23, 2000. Appellant filed a timely notice of appeal from the September 28 order.
DISCUSSION
The order denying appellant's motion for attorney fees is appealable as a post-judgment order. (§ 904.1, subd. (a)(2); Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 996.)
Section 1032, subdivision (b) provides that, unless expressly prohibited by statute, a prevailing party is entitled to recover its costs of suit "as a matter of right." Section 1033.5, subdivision (a)(10) includes attorney fees as an allowable cost of suit where such fees are authorized by contract, statute or law. Finally, Civil Code section 1717 explicitly authorizes an award of attorney fees to the prevailing party in a contract action if the contract provides for such fees.
Under these statutory principles, appellant had a right to recover attorney fees if it prevailed in the breach of contract action. Paragraph 92 of the contract in question states: "Should litigation be necessary to enforce any term or provision of this Contract . . . then all reasonable litigation and collection expenses, witness fees and court costs, and attorney's fees shall be paid to the prevailing party in such litigation." Respondents do not dispute that this provision gave appellant a right to recover attorney fees if it prevailed on its contract claim. Howe
Page 1 2 3 4 5 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|