Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 402263
GEMELLO, J.
Appellant Jeremy Paul (Appellant) challenges the trial court’s order awarding attorney fees and costs to Respondents following a judgment in Respondents’ favor on the merits of the action. He argues (1) fees were not properly awarded because the trial court erred in finding liability under three statutes; (2) fees were not properly apportioned between claims for which fees could be recovered and claims for which fees could not be recovered; and (3) costs that are disallowed under Code of Civil Procedure section 1033.5 were improperly awarded. We reverse the award of costs that are not allowable under Code of Civil Procedure section 1033.5. In all other respects, we affirm the order.
Background
In our decision on a companion appeal, Nadelman v. Paul (A114284), we affirm the trial court’s judgment on the merits of the underlying litigation. The factual background of the litigation is set forth in that opinion.
After the trial court entered judgment in Respondents’ favor on the merits, Respondents filed a motion for fees and costs. Following briefing and oral argument, the court awarded Respondents $396,736.04 in fees and $51,196.36 in costs on four statutory grounds: Civil Code section 1717; the Consumer Legal Remedies Act (CLRA) (Civ. Code, § 1780, subd. (d)); Code of Civil Procedure section 1029.8; and Business and Professions Code section 7160.
Discussion
I. Fees
Appellant argues fees should not have been awarded under the CLRA because the trial court erred in finding a CLRA violation. In the companion appeal, we affirm the trial court’s finding of liability under the CLRA. Therefore, this argument is moot.
Appellant argues the trial court failed to apportion the fee award to only those causes of action that carried a right to recover fees. There was no abuse of discretion. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 148-149.) Attorney fees need not be apportioned among claims that are based on a common core of facts or course of conduct. (Id. at p. 159.) The trial court found Appellant violated the CLRA by misrepresenting that he was an architect or designer qualified to design the deck project, by misrepresenting the dimensions of the Nadelman property to Stott, the civil engineer, when he first approved the design, and by misrepresenting the dimensions of the as-built deck to Stott after the building inspector refused to approve the project. As a result of Appellant’s conduct violating the CLRA, the Nadelmans received a deck that was unsafe and subject to premature deterioration. Their damages were the costs of repair or construction of a safe structure that would withstand the marine environment of Pacifica, California. As to the breach of contract, negligent construction, and intentional misrepresentation causes of action, the court similarly found Appellant liable for his design of the project without proper qualifications and for his misrepresentations to civil engineer Stott, which caused the project to be erroneously approved as safe by the City of Pacifica. As to these causes of action, the court similarly found Appellant’s conduct caused the Nadelmans to receive an unsafe deck that prematurely deteriorated and the Nadelmans’ damages were the costs of building a safe deck and sun room. As to the cause of action under Business and Professions Code section 17200, the court found him liable based in part on his misrepresentation that he was qualified to design the project and the court found the Nadelmans suffered the same injury. All of the causes of action determined at trial, therefore, arose from a common core of facts and related legal theories. Moreover, punitive damages were awarded based on the CLRA violations and the intentional misrepresentations. Any additional issues that arose under the non-CLRA claims (such as Appellant’s responsibility to supervise construction or his conspiracy to evade licensing laws) were so “inextricably intertwined” with CLRA issues (such as whether Appellant’s misrepresentations caused the Nadelmans’ injuries and whether Appellant was licensed and qualified to design and oversee construction of the project) “that it would be impractical or impossible to separate attorney’s time into compensable and noncompensable units. [Citations.]” (Graciano, at p. 159.)
Appellant argues fees should not have been awarded based on findings that he engaged in conspiracy to evade licensing laws (Code Civ. Proc., § 1029.8; Bus. & Prof. Code, § 7160) or based on the contractual fee-shifting provision (Civ. Code, § 1717). We need not address these arguments because the entire fee award was proper under the CLRA.
Finally, Appellant argues that if this court reversed the damages award in whole or part in the companion appeal, we should remand for reconsideration of the fee and cost award in light of the change in the damages award. We do not reduce the damages award in the companion appeal. Therefore, this argument is moot.
II. Costs
Appellant argues the trial court erred by awarding costs that are disallowed under Code of Civil Procedure section 1033.5, including expert witness fees and photocopying and postage expenses. (§ 1033.5, subd. (b)(1), (3).) In the trial court, Respondents argued that costs disallowed under section 1033.5 may be awarded under a contractual cost-shifting provision enforceable pursuant to Civil Code section 1717. The trial court awarded the disputed costs and invited the parties to take the issue up on appeal.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The disputed costs were not properly awarded under Civil Code section 1717, even assuming that the statute applies; that is, the cost-shifting provision of the written construction contracts signed by Nadelman was enforceable against Appellant. The great weight of authority holds that a contractual cost-shifting provision incorporates the definition of costs in section 1033.5, absent express language to the contrary. (Hsu v. Semiconductor Systems, Inc. (2005) 126 Cal.App.4th 1330, 1341.) The fee and cost-shifting provision in the Nadelman contract provides for an award of “reasonable costs and attorney’s fees.” This language is insufficient to expand the range of award able costs beyond those allowable under section 1033.5. The case law relied on by Respondents, Bussey v. Affleck (1990) 225 Cal.App.3d 1162, 1166, has been rejected by other courts that have addressed the issue, including this division and the division that originally decided Bussey. (Hsu, at p. 1341-1342 [listing cases]; Robert L. Cloud & Associates, Inc. v. Mikesell (1999) 69 Cal.App.4th 1141, 1153-1154.)
On appeal, Respondent argues the cost award was authorized by section 1029.8. Under that statute, when an unlicensed person causes injury or damage to another person by performing services for which a license is required, the court “may, in its discretion, award all costs and attorney’s fees” if the injured person prevails in the action. (§ 1029.8, subd. (a).) Respondents argue that the phrase “all costs” authorizes an award of costs even if they would otherwise be disallowed under section 1033.5. We are not persuaded. In Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, the Supreme Court held that “in the absence any law expressly authorizing” an award of expert witness fees, those fees may not be recovered as costs by a prevailing party. (Id. at p. 438, emphasis added.) As the Court noted, the Legislature knows how to authorize the award of expert fees when it wants to do so. (Id. at p. 442 [listing statutes].) The Legislature either expressly authorizes an award of expert witness fees or uses other unambiguous language to indicate section 1033.5 does not apply, such as “notwithstanding any other law.” (Davis, at pp. 442, 445.) In Ferrell v. County of San Diego, an appellate court rejected an argument that the phrase “costs, disbursements and expenses” in a cost-shifting statute signified a broader definition of costs than that provided in section 1033.5. (Ferrell v. County of San Diego (2001) 90 Cal.App.4th 537, 542-543 [discussing § 1036].) Similarly, we reject Respondents’ argument that the phrase “all costs” is sufficient to broaden the definition of costs award able under section 1029.8.
The trial court erred by awarding costs that are disallowed under section 1033.5, subdivision (b), including but not limited to expert witness fees, photocopying and postage. (§ 1033.5, subd. (b)(1), (3).)
Disposition
The trial court’s award of costs that are not allowable under section 1033.5, subdivision (b) is reversed. In all other respects, the court’s order awarding fees and costs is affirmed. On remand, the court shall modify the order to award an amount of costs consistent with the views expressed in this opinion.
We concur. SIMONS, Acting P.J., NEEDHAM, J.