Plaintiff developer appealed orders of the Superior

Plaintiff developer appealed orders of the Superior Court of Los Angeles County (California), which denied costs and attorney fees after the developer prevailed against defendant contractor in a construction defect action.

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The contractor built a shopping center for the developer. The construction contract contained an attorney fee clause. The developer later sold the shopping center and assigned the contractor’s warranty, but not the construction contract, to the buyer. In a settlement of the buyer’s construction defect suit shortly before trial, the buyer assigned its claims against the contractor to the developer. After obtaining an award of damages, the developer sought to recover the buyer’s costs as its assignee. The court held that the developer was entitled under Code Civ. Proc., § 1032, subds. (a)(4), (b), to recover the buyer’s costs as a prevailing party. Although the developer’s memorandum of costs did not adequately distinguish its costs from those of the buyer, the costs attributable to the prosecution of the buyer’s claims could be determined from the record. Under Civ. Code, § 1084, the assignment included all rights of the buyer, including the right to costs. Because the construction contract had not been assigned, it could not be construed with the warranty under Civ. Code, § 1642, and the suit was not an action on a contract for purposes of attorney fees under Civ. Code, § 1717.


The court affirmed the denial of attorney fees, reversed the order that had granted the contractor’s motion to strike and tax costs, and remanded the cause to the trial court for a determination of the amount of costs to which the developer was entitled.

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