Berkeley Cement, Inc. v. Regents of the Univ. of Cal.
242 Cal. Rptr. 3d 252
Cal. Ct. App. 5th2019Background
- UC Regents (University) contracted with Berkeley Cement (Berkeley) to perform structural concrete work on a Merced campus building requiring architecturally exposed cast‑in‑place concrete with self‑consolidating concrete, specified aggregate, and minimized surface voids ("bug holes").
- Berkeley encountered problems: specified aggregate delay (used substitute later approved), rejected mock‑ups showing bug holes, rock pockets, discoloration, and formwork blowouts; rented formwork proved inadequate for self‑consolidating concrete pressures.
- Berkeley substituted a subcontractor to provide formwork and, with University permission, completed some work with flowable conventional concrete; University paid Berkeley the contract price in full.
- Berkeley filed claims for extra work and delays (breach of contract and implied covenants); University cross‑complained for defective architectural finish and delay damages.
- Jury found University did not breach; found Berkeley breached but that University suffered no harm. Trial court awarded costs to University; Berkeley appealed on several grounds focusing largely on costs.
- On appeal the court affirmed the judgment but ordered deletion of $6,486.25 in costs representing deposition fees paid to Berkeley’s expert witnesses; it upheld award of mediation fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Allowability of expert deposition fees as costs | Expert fees paid by University for depositions of Berkeley's experts are not statutory costs and thus not recoverable | Such fees are reasonable litigation costs and should be recoverable or at least within court discretion | Court: Expert deposition fees are not allowable costs under statute; judgment modified to delete that amount |
| Allowability of mediation fees as costs | Mediation was voluntary; fees not "reasonably necessary" and thus not recoverable | Mediation fees may be awarded in the court's discretion when reasonably necessary to the conduct of litigation | Court: Voluntary mediation fees are not categorically nonrecoverable; trial court did not abuse discretion in awarding mediation fees |
| Consistency of jury findings and other trial errors (instructions, cross‑examination, evidence exclusion) | Jury findings were inconsistent; court misinterpreted specification type; evidentiary and procedural errors prejudiced Berkeley | Findings and procedures were proper; any rulings were within court's discretion and not reversible | Court: Berkeley failed to show reversible error on these claims; judgment otherwise affirmed |
| Standard of review for costs awards | (Implied) costs determinations should be scrutinized for statutory compliance | Trial court's factual determinations on necessity/reasonableness reviewed for abuse of discretion; statutory construction reviewed de novo | Court applied abuse‑of‑discretion for factual necessity determinations and de novo for statutory construction, consistent with precedent |
Key Cases Cited
- Anthony v. City of Los Angeles, 166 Cal.App.4th 1011 (Cal. Ct. App. 2008) (costs recovery governed entirely by statute)
- Baker‑Hoey v. Lockheed Martin Corp., 111 Cal.App.4th 592 (Cal. Ct. App. 2003) (statutory construction of costs reviewed de novo)
- Ladas v. California State Auto. Assn., 19 Cal.App.4th 761 (Cal. Ct. App. 1993) (discretionary awarding of non‑listed costs if reasonably necessary)
- Gibson v. Bobroff, 49 Cal.App.4th 1202 (Cal. Ct. App. 1996) (court‑ordered mediation fees may be awarded as discretionary costs)
- Jeld‑Wen, Inc. v. Superior Court, 146 Cal.App.4th 536 (Cal. Ct. App. 2007) (voluntary participation and self‑determination principles in mediation)