Murillo v. Fleetwood Enterprises, Inc.

• Decision Date: 27 April 1998
• Docket Number: No. S058779,S058779
• Citation: 17 Cal.4th 985,73 Cal.Rptr.2d 682,953 P.2d 858
• Court: California Supreme Court
• Parties: , 953 P.2d 858, 98 Cal. Daily Op. Serv. 3114, 98 Daily Journal D.A.R. 4291 Roberto M. MURILLO, Plaintiff and Appellant, v. FLEETWOOD ENTERPRISES, INC., et al., Defendants and Respondents

Page 682

73 Cal.Rptr.2d 682

17 Cal.4th 985, 953 P.2d 858, 98 Cal. Daily Op. Serv. 3114,

98 Daily Journal D.A.R. 4291

Roberto M. MURILLO, Plaintiff and Appellant, v. FLEETWOOD ENTERPRISES, INC., et al., Defendants and Respondents.

No. S058779.

Supreme Court of California

April 27, 1998.

Rehearing Denied July 8, 1998.

Taylor & Hodges, A. Clifton Hodges, Norman F. Taylor, Berta Peterson-Smith, Bret A. Shefter, Glendale, Rene Korper, Granada Hills, and Cassandra A. Walbert, Glendale, for Plaintiff and Appellant.

Summers & Shives, Maureen A. Summers, Neil, Dymott, Perkins, Brown & Frank, Michael I. Neil, Tim S. McClain and Thomas H. Knudsen, San Diego, for Defendants and Respondents.

Luce, Forward, Hamilton & Scripps and Charles A. Bird, San Diego, as Amici Curiae on behalf of Defendants and Respondents.

WERDEGAR, Justice.

This case 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].) ¹ More specifically, however, the Song-Beverly Consumer Warranty Act (Civ.Code, § 1790 et seq. (hereafter sometimes the Song-Beverly Act or the Act)) contains a cost-shifting provision that expressly allows prevailing plaintiffs to recover their costs 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 plaintiff 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.

[953 P.2d 859] including attorney fees, incurred commencing and prosecuting a lawsuit. The Act makes no mention of prevailing defendants.

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). ² Later that year, buyer allegedly perceived various defects in the vehicle and sought repairs. Apparently finding the repairs unsatisfactory, he filed suit in March 1993, alleging sellers breached express and implied warranties as well as other statutory provisions of the Song-Beverly Consumer Warranty Act. Sellers offered to settle the case for $12,000, with buyer to retain possession of the vehicle. Buyer refused the offer, and the parties proceeded to trial. A jury found for sellers on all counts.

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) 198 Cal. 469, 471, 245 P. 1089; Davis v. KGO-T.V., Inc. (1998) 17 Cal.4th 436, 439, 71 Cal.Rptr.2d 452, 950 P.2d 567; Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 241, 5 Cal.Rptr.2d 470 [right is "purely statutory"]; 7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 85, p. 615 [right is "wholly dependent upon statute"].) The statutory provision on which sellers rely is section 1032, subdivision (b) (hereafter section 1032), which provides that "[e]xcept as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding." That sellers are the prevailing parties as that term is defined in section 1032, subdivision (a)(4) is not in dispute.

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 Because section 1032(b) grants a prevailing party the right to recover costs "[e]xcept as otherwise expressly provided by statute " (italics added), we must first determine whether Civil Code section 1794(d) provides an "express" exception. Although Civil Code section 1794(d) gives a prevailing buyer the right to recover "costs and expenses, including attorney's fees," the statute makes no mention of prevailing sellers. In other words, it does not expressly disallow recovery of costs for prevailing sellers; any suggestion that prevailing sellers are prohibited from recovering their costs is at most implied. Accordingly, based on the plain meaning of the words of the statutes in question, we conclude Civil Code section 1794(d) does not provide an "express" exception to the general rule permitting a seller, as a prevailing party, to recover its costs under section 1032(b).

[953 P.2d 860] of the California Uniform Commercial Code.

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 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.

[953 P.2d 861] 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 Dict. (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.

Third, buyer contends our interpretation of section 1032(b) as permitting prevailing sellers 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 to every word and phrase in the statute to accomplish a result consistent with the legislative purpose....' " (California Teachers, supra, 14 Cal.4th at p. 634, 59 Cal.Rptr.2d 671, 927 P.2d 1175, quoting Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1159, 278 Cal.Rptr. 614, 805 P.2d 873.) Observing that even before the enactment of Civil Code section 1794(d), a prevailing buyer was entitled to recover his or her costs pursuant to section 1032, he argues the Legislature had no reason to provide in Civil Code section 1794(d) that a prevailing buyer could recover "costs" unless it meant also to exclude prevailing sellers from a similar recovery.

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 "costs" 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, 71 Cal.Rptr.2d 452, 950 P.2d 567.)

Fourth, buyer contends the specific cost-shifting provision of the Song-Beverly 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) 16 Cal.4th 448, 464, 65 Cal.Rptr.2d 860, 940 P.2d 311; Cumero v. Public Employment Relations Bd. (1989) 49 Cal.3d...