Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of San Diego County No. GIN052850 Michael B. Orfield, Judge.
McCONNELL, P. J.
In earlier appeals, we reversed a judgment for P&D Consultants, Inc. (P&D) in its action against the City of Carlsbad (City) for breach of contract arising from P&D's provision of services for a redesign of the City's golf course. P&D claimed entitlement to $109,093.81 for extra work not covered by the contract documents, and the jury awarded it the full amount. The parties' contract, however, expressly prohibited change orders without the City's written authorization, and P&D did not obtain written authorization for the extra work. We held that as a matter of law, the trial court erred by instructing the jury that the contract could be modified orally or through the parties' conduct, and by denying the City's motion for nonsuit. (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332 (P&D I).)
In this appeal, the City challenges the following postjudgment orders: (1) a May 29, 2009 order denying the City's motion for statutory attorney fees on P&D's claim for violation of prompt payment statutes, on which the City obtained a directed verdict; (2) a June 15, 2009 order awarding P&D $33,639.84 in prejudgment interest; and (3) a July 10, 2009 order denying the City's motion to tax P&D's cost bill to the extent it sought $33,657.62 for expert witness fees, based on the City's nonacceptance of P&D's offer to compromise its claims for $99,999.95 (Code Civ. Proc., § 998, subd. (d)).
P&D's first amended complaint alleged the City violated the following prompt payment statutes: Public Contract Code sections 7107 (section 7107) and 20104.50, and Civil Code section 3320 (section 3320). Subdivision (b) of section 7107 provides: "The retention proceeds withheld from any payment by the public entity from the original contractor, or by the original contractor from any subcontractor, shall be subject to this section." Subdivision (f) of section 7107 provides that "in any action for the collection of funds wrongfully withheld, the prevailing party shall be entitled to attorney's fees and costs." Section 3320, subdivision (a) requires a public agency contracting with a design professional to make progress payments within 30 days of a written demand for payment, and the final retention payment within 45 days of receipt of a written demand. Under subdivision (b) of section 3320, the prevailing party in an action for violation of the statute is entitled to reasonable attorney fees and costs. The parties mistakenly assert Public Contract Code section 20104.50 includes an attorney fees clause.
In P&D I, we affirmed the directed verdict.
We reverse the orders. Since the judgment has been reversed, the City is not, of course, liable for prejudgment interest or for P&D's expert witness fees. " 'An order awarding costs falls with a reversal of the judgment on which it is based.' [Citations.] 'The successful party is never required to pay the costs incurred by the unsuccessful party.' " (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284.)
Additionally, the court denied the City's motion for attorney fees on P&D's claim for violation of prompt payment statutes on the ground the City was not the "prevailing party" because it did not recover a "net judgment." Since it is now established that the City is the "prevailing party" - under any definition of that term - it is entitled to statutory attorney fees and costs for defending against the claim for violation of prompt payment statutes. We direct the court on remand to determine the amount of an award to the City.
The City also seeks statutory fees and costs on appeal. " '[I]t is established that fees, if recoverable at all - pursuant either to statute or [the] parties' agreement - are available for services at trial and on appeal.' " (Morcos v. Board of Retirement (1990) 51 Cal.3d 924, 927.) The City is the prevailing party on appeal, and thus it is entitled to fees and costs. "Although this court has the power to fix attorney fees on appeal, the better practice is to have the trial court determine such fees." (Security Pacific National Bank v. Adamo (1983) 142 Cal.App.3d 492, 498.)
DISPOSITION
The orders are reversed. We remand the matter to the trial court for its determination of an award to the City for attorney fees and costs. The City is also entitled to costs on appeal.
WE CONCUR: McDONALD, J., AARON, J.