Lead Opinion
This сase requires us to reconcile two apparently conflicting statutory schemes governing the recovery of costs and expert witness fees at the conclusion of a lawsuit. The general rule permits the prevailing party (plaintiffs and defendants) to recover certain costs and, under some circumstances, expert witness fees. (Code Civ. Proc., §§ 1032, subd. (b) [costs], 998, subd. (c) [expert witness fees].)
In this case, plaintiff filed suit under the Song-Beverly Act, but defendants prevailed. Defendants sought to recover their costs and expert witness fees under sections 1032, subdivision (b) and 998, subdivision (c), whereas рlaintiff argued the more specific provisions of the Act prohibited prevailing defendants from any such recovery. We conclude defendants are entitled to recover their costs and expert witness fees.
Facts
Plaintiff Roberto M. Murillo (hereafter buyer) purchased a Fleetwood Pace Arrow motorhome in 1991 from an authorized retail dealer. The vehicle was subject to an express warranty against certain defects by defendants Fleetwood Enterprises, Inc., Fleetwood Motor Homes of California, Inc., and Oshkosh Truck Corporation (hereafter sellers).
Sellers then filed a memorandum of costs. Buyer moved to strike the memorandum or, in the alternative, to tax costs. The trial court denied buyer’s motions, stating: “Plaintiff’s motions to strike the memorandum of costs filed by defendants Fleetwood and Oshkosh are denied. Civil Code Section 1794(d) does not bar defendants’ respective entitlements to costs under Code of Civil Procedure Sections 998 or 1032. Plaintiff’s alternative motions to tax are also denied in their entirety.” On appeal, the appellate court affirmed.
Discussion
A. Recovery of Costs
. “The right to recover costs exists solely by virtue of statute.” (Estate of Johnson (1926)
Absent some other statute, these standard statutory provisions plainly would entitle sellers, as the prevailing party, to recover their costs. Buyer, however, contends section 1032(b) conflicts with the Song-Beverly Act. (Civ. Code, § 1790 et seq.) The Act, enacted in 1970 (Stats. 1970, ch. 1333, § 1, p. 2478 et seq.), “regulates warranty terms, imposes service and repair obligations on manufacturers, distributors, and retailers who make express warranties, requires disclosure of specified information in express warranties, and broadens a buyer’s remedies to include costs, attorney’s fees, and civil penalties. (Civ. Code, §§ 1790-1795.8; see Comment (1979) 26 UCLA L.Rev. 583, 625-648.) It supplements, rather than supersedes, the provisions of the California Uniform Commercial Code. (Civ. Code, § 1790.3; see also Civ. Code, § 1794, subd. (b), incorporating specific damages provisions of the Cal. U. Com. Code.) fl[] In 1982, the Legislature added a provision designed to give recourse to the buyer of a new automobile that suffers from the same defect repeatedly, or is out of service for
Popularly known as the automobile “lemon law” (see Nightingale v. Hyundai Motor America (1994)
Civil Code section 1794, subdivision (d) (hereafter Civil Code section 1794(d)), part of the Song-Beverly Act, states: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Italics added.) The Act has no comparable provision for prevailing sellers, and it is this asymmetry that gives rise to the legal dispute in this case. Buyer contends that, because the Act specifically provides for the recovery of costs only by a prevailing buyer, a seller is prohibited from recovering costs even if it prevails in a lawsuit under the Act. In contrast, seller contends nothing in the Act expressly disables section 1032 from applying to a prevailing seller.
As with other disputes over statutory interpretation, we must attempt to effectuate the probable intent of the Legislature, as expressed through the actual words of the statutes in question. (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997)
Buyer relies on several contrary arguments, but we find none persuasive. First, buyer argues the word “expressly,” as used in section 1032(b), simply means “any situation in which the Legislature’s intent is definite and unmistakable.” In support, he merely cites a legal dictionary, which defines the word “expressly” as “[i]n an express manner; in direct or unmistakable terms; explicitly; definitely; directly. . . . The opposite of impliedly.” (Black’s Law Diet. (5th ed. 1979) p. 522, col. 1.) This definition is actually contrary to buyer’s position, for Civil Code section 1794(d)’s silence with regard to prevailing sellers does not “explicitly” or “directly” disable sellers from recovering their costs pursuant to section 1032.
Second, buyer advances the rule of statutory construction that the inclusion of the one is the exclusion of another (i.e., inclusio unius est exclusio alterius). In other words, he contends the Legislature’s express statement in Civil Code section 1794(d) that prevailing buyers should recover their costs suggests the Legislature must also have intended that prevailing sellers be prohibited from doing so. This rule of statutory construction, although useful at times, is no more than a rule of reasonable inference and cannot control over the plain meaning of the statutory language. We need not rely on inference here, for the Legislature, in plain language, has clearly and explicitly informed us of its position, to wit, that “[e]xcept as otherwise expressly provided by statute,” the “prevailing party” (which can include defendant/ sellers as well as plaintiff/buyers) can recover his or her costs. (§ 1032(b).) As explained above, Civil Code section 1794(d) does not “expressly” provide otherwise.
Third, buyer contends our interpretation of section 1032(b) as permitting prevailing sellеrs to recover their costs renders the word “costs” as used in Civil Code section 1794(d) surplusage. This result, buyer claims, violates the rule of statutory construction that courts should, if possible, “ ‘give meaning
We are not persuaded. Had the Legislature intended to prohibit prevailing sellers from recovering their costs in litigation, it would not have chosen such an obscure mechanism to achieve its purpose. The Legislature’s use of the word “сosts” in the Civil Code section 1794(d) phrase, “costs and expenses, including attorney’s fees,” simply makes clear the breadth of the financial incentive the Legislature has created to encourage consumers to vindicate their rights under the Act. In any event, even were we to agree some degree of redundancy exists between the two statutes, such redundancy would be insufficient to satisfy the requirement of an express exception to the general rule regarding the recovery of costs by the prevailing party. (See Davis v. KGO-T.V., Inc., supra, 17 Cal.4th at pp. 443-444.)
Fourth, buyer contends the specific cost-shifting provision of the Song-13 everly Act (Civ. Code, § 1794(d)) must take precedence over the general cost-recovery statute (Code Civ. Proc., § 1032(b)), because “a more specific statute controls over a more general one.” (Lake v. Reed (1997)
The two statutes are not inconsistent, however, because they may be reconciled. On the one hand, if a buyer should prevail in an action under the Act, he or she is entitled to costs, expenses, and attorney fees as set forth in Civil Code section 1794(d). On the other hand, if a seller should prevail in an action brought under the Act, it is entitled to costs under section 1032(b). We thus perceive no conflict or inconsistency between Civil Code section 1794 and Code of Civil Procedure section 1032.
Fifth, buyer contends the Legislature’s amendment of Civil Code former section 1794 in 1978 indicates it intended to prohibit prevailing sellers from
The argument is not well taken. We may assume that, by amending Civil Code former section 1794, the Legislature intended to change the law. Indeed, the change is apparent: Whereas under the old version of the statute, prevailing buyers were entitled to treble damages plus attorney fees, the new version allows buyers to recover proven damages, costs, expenses, and attorney fees. Nothing in the amendment expressly indicates the Legislature intended the additional change of barring prevailing sellers from recovering their litigation costs. Without some indication the Legislature intended this additional change in the law, we cannot conclude such a change was made.
Turning from the actual words of the pertinent statutes, buyer argues that public policy would be furthered by a holding that Civil Code section 1794(d) is an exclusive, one-way cost-shifting provision that necessarily prohibits prevailing sellers from recovering any costs under the Song-Beverly Act. He argues such an interpretation is consistent with the pro-consumer purpose of the law, and a contrary decision would undermine the Legislature’s intent by deterring consumers from enforcing their rights under the Act by making it too expensive to do so. He adds that the Song-Beverly Act was not intended to be “fair” to sellers and manufacturers, but to coerce them to honor their warranties without delay or duplicity, and to make it expensive for them to avoid responsibility.
We could not, of course, ignore the actual words of the statute in an attempt to vindicate our perception of the Legislature’s purpose in enacting the law. “ ‘This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed.’ ” (California Teachers, supra,
Buyer contends allowing sellers to recover costs is contrary to several cases in which other appellate courts have concluded one-way cost-shifting statutes constitute an express exception to the general rule authorizing prevailing parties to recover their costs. As we explain, the cases buyer cites in support are all distinguishable.
Brown v. West Covina Toyota (1994)
Following the verdict, defendants successfully moved for an award of costs and attorney fees under Civil Code section 2983.4 (part of the ReesLevering Automobile Sales Finance Act, Civ. Code, §§ 2981-2984.4 (hereafter the Rees-Levering Act)), which provides that “[Reasonable attorney’s fees and costs shall be awarded to the prevailing party in any action on a contract or purchase order subject to the provisions of this chapter regardless of whether the action is instituted by the seller, holder or' buyer.” (Italics added.) The Court of Appeal reversed. The appellate court first explained that although plaintiffs purchased the car pursuant to a conditional sales
The Brown court thus confronted a situation where plaintiffs alleged defendants violated the Song-Beverly Act, in a case in which the vehicle was purchased pursuant to a conditional sales contract subject to the ReesLevering Act. Because only the Rees-Levering Act permitted a prevailing defendant to recover costs and attorney fees, the court was faced with reconciling the two sets of laws. To resolve the conflict, the court reasoned that to permit a prevailing defendant to invoke the fee-shifting provisions of the Rees-Levering Act in that case “would effectively nullify the one-sided fee-shifting under Song-Beverly whenever a plaintiff sues to enforce a breach of warranty claim under Song-Beverly, but happens to have purchased the automobile under a cоnditional sale contract.” (Brown, supra,
At the outset, we reject sellers’ assertion Brown is distinguishable because its discussion of the Song-Beverly Act was unnecessary to its decision. In order for the Brown court to have found a conflict between the respective cost-recovery provisions of the Song-Beverly Act (Civ. Code, § 1794(d)) and the Rees-Levering Act (Civ. Code, § 2983.4), and to have determined that the Song-Beverly Act should prevail, it first had to construe the Song-Beverly Act to allow only prevailing buyers to recover costs and attorney fees. Otherwise, there would have been no apparent statutory conflict for the court to seek to reconcile. The Brown court’s construction of Civil Code section 1794(d) is therefore not dictum.
Although the court’s discussion of the Song-Beverly Act was thus necessary to its decision, we nevertheless conclude it is not persuasive here. The Brown court did not consider whether the specific cost-shifting provision of the Song-Beverly Act (Civ. Code, § 1794(d)) wholly supplants the generally applicable cost-recovery rule set forth in section 1032(b). Although the court
Brown is unpersuasive for another reason. The Brown court did not consider whether the аbility of a prevailing Song-Beverly plaintiff to recover “attorney’s fees based on actual time expended” (Civ. Code, § 1794(d))—a right not given to prevailing defendants—sufficiently vindicates the Legislature’s intent to protect consumers. As explained above, because attorney fees generally comprise a large percentage of the overall cost of litigation, this one-way attomey-fee-shifting mechanism arguably is sufficient to support the Legislature’s pro-consumer purpose. We therefore disapprove Brown to the extent it holds Civil Code section 1794(d) constitutes an “express” exception to the general rule permitting a prevailing party, including a prevailing defendant, to recoup its costs of litigation.
Buyer also cites Dawson v. Westerly Investigations, Inc. (1988)
At issue in Dawson was the interplay between the general cost-recovery statute (Code Civ. Proc., § 1032(b)) and Labor Code section 98.2, subdivision (b), which states: “If the party seeking review by filing an appeal to the justice, municipal, or superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorneys’ fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.” (Italics added.) The Dawson court reversed the municipal court’s award of costs and attorney fees to the appellant/employer, concluding Labor Code section 98.2, subdivision (b) constituted an express exception to the general rulе favoring prevailing parties. (Dawson, supra, 204 Cal.App.3d at p. Supp. 24.)
Buyer contends Dawson illustrates a situation in which the Legislature, by enacting a cost-shifting statute, has created an “express” exception to the general cost-recovery rule favoring prevailing parties. Thus, he claims, “even though the statute did not also state ‘Costs shall not be awarded to a
We agree the cost-shifting scheme at issue in Dawson supplants the general rule set forth in section 1032(b). We disagree, however, that this conclusion assists buyer here, for Labor Code section 98.2 is a demonstrably different sort of exception than Civil Code section 1794(d). Unlike the cost-shifting provisions of the Song-Beverly Act, which is silent regarding the ability of prevailing defendants to recover costs, Labor Code section 98.2 expressly refers to both sides of the litigation. It merely states thаt an unsuccessful appellant must pay the costs of a successful respondent. Of course, both employers and employees can appeal an adverse labor ruling. Because Labor Code section 98.2 addresses the ability of both sides to recover their costs, it comprises an express exception to section 1032(b).
Rogers v. Superior Court (1993)
This statutory provision quite clearly addresses the circumstances under which both a plaintiff and a defendant can obtain an award of costs (and attorney fees) following a Public Records Act lawsuit. For the plaintiff, he or she must “prevail in litigation filed pursuant to this section.” (Gov. Code, § 6259, subd. (d).) For a defendant public agency, it must both prevail and have the trial court conclude the plaintiff’s case was “clearly frivolous.” (Ibid.) Unlike in the Song-Beverly Act, then, in which the cost-shifting provision is silent with regard to prevailing defendants, the Cаlifornia Public Records Act expressly addresses defendant’s ability to recover litigation costs. Accordingly, Rogers is inapposite.
Gould v. Moss (1910)
Buyer, however, points to a characterization of Gould, supra,
Buyer’s reliance on Gould, supra,
Finally, buyer contends “California law features a plethora of statutes which contain awards of costs and/or attorney’s fees only to one particular party, often the plaintiff bringing an action for violation of California law.” In support, he cites 35 different statutes.
Buyer’s contention that allowing sellers to recover costs will undermine dozens of cost- and fee-shifting statutes falls wide of the mark. To begin
In addition, many of the statutes cited address the ability of both parties to recover their costs should they prevail in litigation. Although the meaning of these statutes is not before us, to the extent they concern the ability of both parties to recover costs or fees (see, e.g., Prob. Code, § 2622.5 [prevailing party entitled to costs and reasonable attorney fees if objections (or opposition to objections) to conservatorship accounting were “without reasonable cause and in bad faith”]), or require that additional conditions be satisfied before one side of the litigation may recover costs (see, e.g., Gov. Code, §§ 9078, 9079 [court shall award costs and attorney fees to prevailing plaintiff in action under Gov. Code, § 9077, but not to prevailing defendant public agency unless “plaintiff’s case is clearly frivolous”]; id., § 11130.5 [court shall award costs and attorney fees to prevailing plaintiff in action under Gov. Code, § 11130, but not to prevailing defendant state body unless plaintiff’s “action was clearly frivolous and totally lacking in merit”]), these statutes may constitute express exceptions to section 1032(b). (See discussion, ante, of Dawson, supra,
Having found buyer’s cited authority distinguishable and no express exception in Civil Code section 1794(d) to the general rule set forth in section 1032(b) permitting a prevailing defendant to recover its costs, we conclude the Court оf Appeal below ruled correctly that sellers were entitled to their costs.
B. Recovery of Expert Witness Fees
In addition to costs, the trial court also granted sellers their expert witness fees under section 998, because buyer recovered less than sellers offered in
It is undisputed that sellers offered buyer a settlement of $12,000 within the time limits set forth in section 998, that the offer was rejected, and that buyer recovered less than the offer (i.e., nothing) following the jury’s verdict.
Having concluded Civil Code section 1794(d) fails to set forth an express exception to the general cost-recovery rule set forth in section 1032(b), we likewise conclude it provides no exception to the provisions of section 998. Section 998 explicitly states that it “augment[sj” section 1032(b). Thus, the requiremеnts for recovery of costs and fees under section 998 must be read in conjunction with section 1032(b), including the requirement that section 998 costs and fees are available to the prevailing party “[ejxcept as otherwise expressly provided by statute.” (§ 1032(b), italics added.)
In re Marriage of Green (1989)
Moreover, permitting a seller who prevails in a suit brought under the Song-Beverly Act to recover expert witness fees pursuant to section 998 gives content to the Legislature’s expressed intent to encourage settlement (Poster v. Southern Cal. Rapid Transit Dist. (1990)
Conclusion
The judgment of the Court of Appeal is affirmed. The requests for judicial notice, filed by both amici curiae and plaintiff Roberto Murillo, are denied as moot.
George, C. J., Kennard, J., Baxter, J., Chin, J., and Brown, J., concurred.
Notes
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Buyer’s complaint names Fleetwood Enterprises, Inc., and Oshkosh Truck Corporation as defendants, but not Fleetwood Motor Homes of California, Inc. Oshkosh filed a cross-complaint seeking indemnification and declaratory relief against “Fleetwood Enterprises, Inc., and Roes 1 to 20, inclusive,” but its cross-complaint does not mention Fleetwood Motor Homes of California, Inc. Oshkosh answered the complaint, and “Fleetwood Motor Homes of California, Inc.” filed a general denial, noting the defendant was “Fleetwood Enterprises, Inc., a California corporation et al.” (Italics added.) No amended complaint or substitution of Fleetwood Motor Homes of California, Inc., as a Doe defendant appears in the record. Nevertheless, because the parties, the trial court, and the Court of Appeal treated Fleetwood Enterprises, Inc., and Fleetwood Motor Homes of California, Inc., as one party, we will do so as well for purposes of this appeal.
In 1910, the year Gould was decided, sectiоn 1095 stated: “If judgment be given for the applicant, he may recover the damages which he has sustained, as found by the jury, or as may be determined by the court or referee, upon a reference to be ordered, together with costs; and for such damages and costs an execution may issue; and a peremptory mandate must also be awarded without delay.” (Italics added.)
Amici curiae, the Recreation Vehicle Industry Association, Inc., the Automobile Manufacturers Association, and the Association of International Automobile Manufacturers, Inc., cite 151 statutes that they allege contain one-way cost- or attomey-fee-shifting provisions.
This case does not present a situation in which a litigant is not the prevailing party, and yet may claim entitlement to section 998 costs and fees because the prevailing party rejected a qualifying settlement offer and recovered less than the offer following the verdict. (See, e.g., Adam v. DeCharon (1995)
Dissenting Opinion
I dissent.
The majority hold that if a consumer brings an unsuccessful action under the Song-Beverly Consumer Warranty Act (Civ. Code, § 1790 et seq.),
Here, buyer, who brought an action alleging that the vehicle he purchased was defective and rejected a settlement offer by sellers, lost his case under the Song-Beverly Consumer ■ Warranty Act. Although the jury decided against him, there was no claim by sellers that the action was frivolous. Nonetheless, he suffered the equivalent of a substantial penalty for bringing the claim: He was required to pay sellers $6,642.99 in costs and expenses.
The Song-Beverly Consumer Warranty Act, in relevant part, provides: “If the buyer prevails in an action under this section, the buyer shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civ. Code, § 1794, subd. (d).) It conspicuously does not provide for any award of costs and expenses if the seller prevails.
The majority hold that sellers here were nonetheless entitled to costs and expert fees under the general cost-shifting provisions of Code of Civil Proсedure sections 1032 and 998. Code of Civil Procedure section 1032, subdivision (b), provides that “[ejxcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Code of Civil Procedure section 998, subdivision (c)(1), provides that if a settlement offer is made by a defendant and not accepted, and the plaintiff fails to obtain a more favorable judgment, costs allowed under section 1032 shall be augmented to include defendant’s costs from the time of the offer and, in addition, the trial court may require the plaintiff to pay the costs of the services of the defendant’s expert witnesses. The majority determine that these general cost-shifting provisions apply because the Song-Beverly Consumer Warranty Act does not “expressly” state that a prevailing seller is not entitled to recover costs, or to have such costs augmented if thе buyer rejects a settlement offer and fails to obtain a more favorable judgment or loses the action.
I disagree. The specific costs provisions of the Song-Beverly Consumer Warranty Act, which mandate the prevailing buyer’s recovery of “a sum
The legislative history of the Song-Beverly Consumer Warranty Act supports the conclusion that it was intended to “occupy the field” by providing for recovery of costs and expenses only by the prevailing consumer. Thus, an analysis prepared by the Assembly Committee on Labor, Employment and Consumer Affairs explains the purpose of the costs provision: “Indigent consumers are often discouraged from seeking legal redress due to court costs. The addition of awards of ‘costs and expenses’ by the court to the consumer to cover such out-of-pocket expenses as filing fees, expert witness fees, marshall’s fees, etc., should open the litigation process to everyone.” (Assem. Com. on Labor, Employment and Consumer Affairs, Analysis of Assem. Bill No. 3374 (1977-1978 Reg. Sess.) May 24, 1978, p. 2.) Similarly, an analysis prepared by the Department of Consumer Affairs states: “The bill would amend . . . [the Act] to provide that a prevailing consumer may be awarded costs (court costs, i.e. filing and process fees) and expenses (i.e. еxpert witness fees). The absence of such a provision can deter consumers from pursuing a violation of the Act through the courts, a disadvantage not equally felt by the retailer or manufacturer.” (Dept. Consumer Affairs, Enrolled Bill Rep. on Assem. Bill No. 3374 (1977-1978 Reg. Sess.) Aug. 30, 1978, p. 3, italics added.)
The conclusion that the Song-Beverly Consumer Warranty Act displaces the general cost-shifting provisions of the Code of Civil Procedure is also consistent with the well-reasoned decisions in Dawson v. Westerly Investgations, Inc. (1988)
Similarly, in Rogers, the Court of Appeal ruled that an award under the general cost-shifting provisions of the Code of Civil Procedure was barred by Government Code section 6259, subdivision (d), which provides, in pertinent part, that “[t]he court shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation filed pursuant to this section. ... If the court finds that the plaintiff’s case is clearly frivolous, it shall award court costs and reasonable attorney fees to the public agency.” Although the Government Code provision says nothing about denying costs in the case of a prevailing defendant when the plaintiff’s case was not clearly frivolous—i.e., is silent regarding the ability of a prevailing defendant to recover costs pursuant to the general cost-shifting provisions of the Code of Civil Procedure (see maj. opn., ante, at p. 997)—the Court of Appeal concluded that “the specific provisions of the Act must prevail over the more general provision of the Code of Civil Procedure.” (Rogers v. Superior Court, supra,
The Song-Beverly Consumer Warranty Act, like the statutes at issue in Dawson and Rogers, clearly “supplants the general rule set forth in [Code of Civil Procedure] section 1032[, subdivision] (b)” and section 998. (See maj. opn., ante, at p. 997.) The operative question is not, as the majority propose, whether the more specific statute merely refers in some way to both parties, or whether the availability of attorney fees under the more specific statute can be asserted to “sufficiently vindicate[]” the legislative purpose (see maj. opn., ante, at p. 996). Rather, the dispositive point is that the costs provisions of the Song-Beverly Consumer Warranty Act are no more “reconcilable” than were the statutes at issue in Dawson and Rogers with the general cost-shifting provisions of the Code of Civil Procedure.
Nor is the majority’s holding reconcilable with the “strongly pro-consumer” legislative purpose of the Song-Beverly Consumer Warranty Act.
For the foregoing reasons, I would reverse the judgment of the Court of Appeal.
Appellant’s petition for rehearing was denied July 8, 1998. Mosk, J., was of the opinion that the petition should be granted.