Song-Beverly Act does not prohibit prevailing sellers from recovering costs and expert witness fees

Law Reporter, Dec 1998

Murillo v. Fleetwood Enters., Inc. 73 Cal. Rptr. 2d 682 (1998).

The California Supreme Court held the Song-Beverly Consumer Warranty Act, CAL. Clv. CODE 1790 etseq., does not expressly disallow sellers from recovering costs and expert witness fees from buyers who sue unsuccessfully. Here, after purchasing a motor home, Murillo allegedly found various defects in the vehicle and sought repairs. Finding the repairs unsatisfactory, he sued the sellers under the Song-Beverly Act, alleging breach of express and implied warranties, among other things. Defendants offered to settle for $12,000, with plaintiff retaining possession of the vehicle. Plaintiff refused, and the case went to trial. The jury found for defendants, who then filed a memorandum of costs and expert witness fees under CAL. Ctv. PROC. CODE 1032(b) and 998(c).

Plaintiff moved to strike the memorandum or, in the alternative, to tax costs, arguing that 1794(d) of the SongBeverly Act-which allows recovery of costs by prevailing buyers but does not mention recovery by prevailing sellers-provides an express exception to the general rule permitting a seller, as a prevailing party, to recover its costs under 1032(b). That section grants a prevailing party the right to recover costs "except as otherwise expressly provided by statute." The trial court denied the motion, and the appellate court affirmed.

Affirming, the state high court concluded that although the Song-Beverly Act has no comparable provision for prevailing sellers, it does not expressly prohibit them from recovering costs under 1032(b). Any suggestion that prevailing sellers are prohibited from recovering their costs is at most implied, the court said.

Moreover, prevailing sellers are entitled to recover their expert witness fees under 998(c), which expressly states that costs allowed under 1032(b) shall be augmented to include expert witness fees when an offer made by a defendant is not accepted and the plaintiff fails to obtain a more favorable judgment. Here, plaintiff rejected defendants' settlement offer and recovered a lesser amount. Having concluded 1794(d) fails to provide an express exception to 1032(b), the court found 1794(d) also fails to provide an exception to 998(c).