Construction, Costs: Litigant Prevailing On Payment Bond Improperly Denied Costs And Fees Under Routine Costs Statute And Civil Code Section 9564(c)

It Did Not Matter That Someone Else Paid Or Reimbursed Costs And Fees—Entitlement Was There.

            In Cell-Crete Corp. v. Federal Ins. Co., Case No. E075264 (4^th Dist., Div. 2 Sept. 8, 2022) (published), defendant prevailed in a case involving a payment bond, which raised whether defendant was entitled to routine costs and prevailing party fees under Civil Code section 9564(c) [a fee-shifting provision in favor of a prevailing party upon a payment bond].   The lower court denied both costs and fees to defendant on the basis that they were paid by a third-party insurance carrier.

            The 4/2 DCA reversed.  As to costs, defendant prevailed such that it is irrelevant who paid them.  (Litt v. Eisenhower Medical Center, 237 Cal.App.4^th 1217, 1222 (2015).)  Same result occurred as to fees: (1) section 9564 does not have language indicating the fees had to be “incurred;” and (2) even if they had to be “incurred,” case law establishes that a litigant does incur fees even if a carrier or indemnitor pays them (Lolley v. Campbell, 28 Cal.4^th 367, 373 (2002)).