Construction: Failure To Appeal Postjudgment Fee Denial Order Doomed One Appeal

Lower Court Correctly Denied Fees Under Prompt Payment Statute Based On Decisional Law Under Similar Statutory Provision

     For you construction aficionados, Underground Construction Co., Inc. v. City of Oakland, Case No. A130752 (1st Dist., Div. 4 May 15, 2013) (unpublished) will be of interest.

It is warmer down below . . . Travel in comfort by Underground.  Austin Cooper. 1924.  Library of Congress.

     Here is the factual backdrop. Contractor won most jury claims against City, but lost a prompt payment statutory claim to City. The lower court denied contractor’s motion for attorney’s fees but granted its motion to strike City’s cost bill. City never appealed the postjudgment orders, but argued nonetheless on appeal that it should have been awarded fees. Contractor separately appealed the fee denial order.

     Everything was effectively sustained on appeal.

     City’s failure to appeal the postjudgment order denying fees was jurisdictionally dispositive.

     Contractor’s fee denial appeal gave the appellate court more pause given that there were statutory construction issues to consider. Public Code section 7107(f), which has no reported decisions construing it, allows a prevailing party to collect fees in a dispute over whether a public entity failed to make prompt payment with respect to funds “wrongfully withheld.” Despite the lack of reported decisions under section 7107(f), the trial court did not err in applying similar reasoning from Denver D. Darling, Inc. v. Controlled Environments Construction, Inc., 89 Cal.App.4th 1221 (2001), involving the construction of former Civil Code section 3260 having somewhat similar language. Although Public Code section 7107(f) was inartfully drafted according to the reviewing court, Darling’s analysis was apt and the Legislature never changed prior analog language when modifying pertinent statutory provisions. So, the trial court did not get it wrong in nixing fees after making a determination that the amount in dispute was so small as not to fall within the “wrongfully withheld” language.