Former Payment Bond Fee Entitlement Section Inapplicable Because Record Did Not Show Public Project Involved.
In Nissho of Calif., Inc. v. Bond Safeguard Ins. Co., Case No. E052746 (4th Dist., Div. 2 Oct. 22, 2013) (published), contractor recovered over $1 million against owner and surety giving a payment guarantee through bonds for offsite landscaping work required under a Subdivision Improvement Agreement after full payment was not received. Contractor then moved to recover attorney’s fees and costs under Government Code section 66499.4, a special fee-shifting statute for recovery of fees and costs by a local agency incurred in enforcing the bonds securing the payment obligations under the SIA. The trial court denied fees and costs, a ruling upheld on appeal.
Section 66499 did not apply because the surety was only liable if a local agency was seeking reimbursement; private contractor did not fall within the proper entitled fee-entitled entity category, so this fee-shifting provision in the Subdivision Map Act was inapt.
Contractor then argued that fee shifting was proper under former Civil Code section 3250, a payment bond fee-shifting provision applicable to public works. The problem with this contention was that the record did not show the offsite landscaping work involved a public work project subject to public management. Fee/costs denial determination affirmed on appeal.
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