Pirkig v. Dennis, A045295

• Decision Date: 31 October 1989
• Docket Number: No. A045295,A045295
• Citation: 215 Cal.App.3d 1560,264 Cal.Rptr. 494
• Parties: Gary PIRKIG et al., Plaintiffs and Respondents, v. Jeffrey DENNIS, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 494

264 Cal.Rptr. 494

215 Cal.App.3d 1560

Gary PIRKIG et al., Plaintiffs and Respondents, v. Jeffrey DENNIS, Defendant and Appellant.

No. A045295.

Court of Appeal, First District, Division 4, California.

Oct. 31, 1989.

Certified for Partial Publication ^*

R. Stevens Condie, Condie & Less, Oakland, for defendant and appellant.

Donald L. Galine, San Mateo, Mitchell D. Ellis, Pisano and Ellis, San Francisco, for plaintiffs and respondents.

ANDERSON, Presiding Justice.

This is an appeal from the trial court's decision awarding costs and attorney fees to respondents in an action arising from the sale of real estate.

I. BACKGROUND FACTS

In March 1982 plaintiffs Gary and Kathy Pirkig (respondents) purchased a home in Benicia, California, from James Cook and Joseph Eystad (sellers). Respondents were represented in the transaction by defendant Jeffrey Dennis, a real estate broker (appellant), while the sellers enlisted the aid of two other real estate brokers, Gay Turner and Cindy Rogers. To facilitate the sale, the sellers accepted a note secured by a second deed of trust for a portion of the purchase price.

After moving into the house, respondents discovered numerous defects that had not been disclosed to them by any of the defendants. The roof leaked, the garage flooded and moisture seeped through the windows causing damage to the structure and the interior of the house. It was further discovered that the garbage disposal was broken, the swimming pool did not work, and the house was infested with rodents and insects.

Approximately one year later, in March 1983, respondents brought an action against defendant sellers and real estate agents, including appellant, for fraud, negligent misrepresentation and infliction of great emotional distress. During the pendency of the action, respondents did not make payments to the sellers on the note and second deed of trust but, instead, placed the amounts due into an escrow account. Thereupon, the sellers initiated a foreclosure proceeding which could be forestalled by respondents only by obtaining an injunction from the superior court.

On December 12, 1984, appellant made an offer to compromise pursuant to CODE OF CIVIL PROCEDURE SECTION 998¹ in the amount of $2,500 which, however, was not accepted by respondents. On December 30, 1985, a jury trial commenced against all defendants. During trial the court, on its motion, dismissed the fraud and emotional distress counts of the complaint. The negligent misrepresentation regarding square footage and defects was submitted to the jury. In its special verdict handed down on January 16, 1986, the jury found in favor of appellant on the square footage issue and against all defendants on the defects issue. The jury determined the total amount of damages suffered by respondents to be $51,000 to which the parties contributed in the following proportions: respondents 1 percent, sellers 60 percent, appellant 21 percent, other brokers 18 percent.

Following the verdict, the parties made various motions. Of these the trial court granted the defense motion to dismiss brokers Turner and Rogers from the case and to order respondents to pay the latters' attorney fees. On March 12, 1986, the trial court also granted the defense motion for a new trial on damages, unless respondents agreed to reduce the amount of recovery from $51,000 to $8,500. Respondents rejected the offer for remittitur and requested a new trial on the issue of damages only. On October 2, 1986, while the new trial was pending, respondents made a compromise offer to appellant to settle the matter for $4,500 which was rejected by appellant. On January 12, 1987, respondents settled the case with the sellers for $28,300. On May 6, 1987, appellant made a second compromise offer to settle for $2,500 which respondents declined to accept.

The case proceeded to a second (court) trial against appellant, the lone remaining defendant, on February 1, 1988. At the very outset, the court rejected appellant's attempt to reopen the issue of liability and limited itself to determine the extent of damages only. After hearing the parties' arguments, the court found that since respondents had elected at the first trial to make the cost of repairs the measure of damages, they were not entitled to recover the loss of value of the property. The court reaffirmed that the cost of repairs totalled $7,500 which, however, was offset by the amount of settlement received from the sellers. Consistent therewith, the court granted appellant's motion for judgment under section 631.8, but took under submission the issues of the form of the judgment, the determination of the prevailing party and the amount of attorney fees to be awarded. However, in doing so, the court emphasized: "There's no question that the plaintiff [respondents] prevailed on the issue of liability."

Following further briefing by the parties, the court ruled that due to the previous settlement respondents were to take nothing against appellant. ² In a later proceeding the court determined that respondents were the prevailing parties in the case and awarded them costs in the amount of $6,379.06 and attorney fees in the sum of $15,750. ³ Appellant made a motion for a new trial and/or vacation of judgment on the grounds that the trial court failed to consider the effect of appellant's two compromise offers made pursuant to section 998. In a statement of decision issued on January 3, 1989, the trial court denied appellant's motion except for taxing respondents in the sum of $395. The present appeal followed.

II. DISCUSSION

On appeal appellant argues that the award of costs and attorney fees was erroneous in the instant case because (1) respondents could not be deemed prevailing parties under either section 1032 or Civil Code section 1717; (2) the compromise offers made by appellant under section 998 barred recovery of respondents' costs and attorney fees; and (3) equitable considerations also militate against the award granted. We find no merit to any of appellant's contentions and affirm the decision below.

A. The Appealability of the Trial Court's Ruling ^**

B. Respondents Were Correctly Declared Prevailing Parties in the Case

Appellant's first contention on the merits is that the trial court erred in finding respondents to be the prevailing parties under section 1032 and in awarding them costs and attorney fees. Appellant claims that since respondents did not obtain a net monetary recovery at the second trial, they failed to qualify as prevailing parties as a matter of law. Appellant's contention is without merit.

Section 1032 as amended in 1986 provides in relevant part: " 'Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court, and under those circumstances, the court, in its discretion, may allow costs or not and, if allowed may apportion costs between the parties on the same or adverse sides pursuant to rules adopted under Section 1034." (Subdivision (a)(4), emphasis added.)

The rules pertaining to the interpretation of a statute are well settled. In determining the meaning of the statute we must ascertain the intent of the Legislature so as to effect the purpose of the law. In determining the legislative intent we must turn first to the words themselves for the answer. There is a presumption that every word, phrase and provision employed in the statute is intended to have meaning. Words in the statute must be given their ordinary meaning and receive a commonsense construction. Finally, the various parts of a statutory enactment must be harmonized by considering the particular clause in the context of the statutory framework as a whole. (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645, 335 P.2d 672; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230, 110 Cal.Rptr. 144, 514 P.2d 1224; Baker v. Walker & Walker, Inc. (1982) 133 Cal.App.3d 746, 762, 184 Cal.Rptr. 245.)

By reading the statute under the foregoing principles, it becomes obvious that the net monetary recovery grafted in section 1032 by the 1986 amendment (Stats.1986, ch. 377, § 6) is far from being the sole instance when a litigant may be declared the prevailing party in the case. This is reaffirmed by the statutory phrase that the prevailing party includes the party with a net monetary recovery. The word "include" is an open-ended term which is expansive in scope and fails to limit the definition of the prevailing party to the enumerated instances. The additional language of the statute makes it even clearer that the listed examples of prevailing parties are not all-inclusive inasmuch as the section explicitly states that parties who do not recover monetary relief or ones who do not come within the enumerated examples, may also be declared prevailing parties and awarded costs in the discretion of the court. (See underlined portion of § 1032, supra.)

Respondents clearly fall within the latter defined categories of the statute. Although failing to obtain a net monetary recovery at the second trial, respondents prevailed on the issue of liability in both the first and the second trial. The record is undisputed that the jury found appellant liable for negligent misrepresentation of property defects, and it determined the proportion of his fault in 21 percent. The adjudication of appellant's liability was not disturbed by either the first or the second court. Prevailing on the issue of liability may be deemed sufficient in itself to determine a prevailing party under the broad definition of section 1032. (See underlined portion of the statute, sup...