It seems eminently sensible to me what the trial court did here, and the Court of Appeal largely affirms. I just have one question.
It's a home remodel, and the owner and general contractor are in a tiff. The contractor files suit because it says it wasn't paid everything that was due, and the owner says that the contractor is liable for liquidated damages due to the delay in finishing up the project. On the merits, it looks like both sides have decent arguments, and are both partially right. Which is precisely what both the trial court and Court of Appeal conclude.
So the trial court gives the contractor a fraction of what it's asking for and offsets this amount by part of the damages the owner claims as a result of the delay. Seems fair, equitable and right.
Here's my question:
The trial court refuses to award attorney's fees because it says there's no real prevailing party since both sides were somewhat right and somewhat wrong. The Court of Appeal affirms. That seems spot on. The trial court had discretion in this regard, both sides definitely prevailed in part, so I completely agree. No prevailing party for attorney's fees purposes.
On that same reasoning, the trial court denied costs to the contractor. On this issue, however, the Court of Appeal reverses. Justice Pollack says -- reasonably, in my view -- that cost awards are mandatory under Section 1032 of the CCP for anyone who obtains a "net" (e.g., even partial) recovery, so the contractor is entitled to its costs even though both sides partially won.
At first glace, that seemed entirely right.
But then I went back and looked at the relevant statutes.
Here's what the specific "contractor" statute (Section 8800) says; e.g., the one that the contractor is specifically suing under, and the one under which it (unsuccessfully) sought an award of attorney's fees:
"In an action for collection of the amount wrongfully withheld, the prevailing party is entitled to costs and a reasonable attorney's fee."
Recall that the Court of Appeal (correctly) affirmed the trial court's view that there were no attorney's fees due because there was no "prevailing party" under that statute. The Court of Appeal nonetheless says that there's a "prevailing party" under a different statute, Section 1032, since the relevant precedent under that one says that anyone with a net recovery is entitled to costs.
Sure enough.
But the specific statute (8800) also covers cost awards, not just attorney's fees. ("[T]he prevailing party is entitled to costs and a reasonable attorney's fee."). We already decided that there was no prevailing party under that statute. Does a specific statute (8800) prevail over the otherwise-applicable general statute (1032) when the two, as here, conflict?
I know that in FEHA cases, the answer is definitely "Yes" -- that in those cases (e.g., employment discrimination actions), a prevailing defendant is not normally entitled to costs under Section 1032 even though it's the prevailing party, because the more specific FEHA statute that governs costs otherwise provides. Now, admittedly, there, the specific statute (Section 12965) expressly says that it trumps the general rule, whereas here, there's no such "express" supremacy claim. (Though I'll mention that even Section 12965 only expressly says it trumps section 998, not 1032, so arguably those situations and the present one are perfectly analogous on that score.) But what about the underlying principle? If there's a specific statute that addresses both costs and fees, and a court rightly decides that there's no recovery under that one, can you nonetheless still recover costs under the more general one?
Justice Pollack doesn't answer that question here. Presumably, in his defense, because there's not an argument by the parties on that score.
Still, I'd like to know the answer. Because otherwise I think people will get the impression -- perhaps correctly, but perhaps erroneously -- that the Court of Appeal hereby holds that the general entitlement to costs in Section 1032 is not trumped by more specific cost recovery statutes.
Anyway, that's my question. One that seems fairly important, I suspect. Not just in this case, but in a whole lot of other ones as well.
