Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Orange County No. 05CC13203, H. Warren Siegel, Judge.
Devirian & Shinmoto and Lynn A. Shinmoto for Defendant and Appellant.
Millar, Hodges & Bemis and Richard W. Millar, Jr., for Plaintiff and Appellant.
OPINION
ARONSON, J.
A&A Ready Mix Concrete, Inc., (A&A) challenges the trial court’s orders striking its cost bill and denying its motion to amend the judgment to include prejudgment interest. A&A contends the trial court’s judgment finding in favor of its contract claims under a credit agreement entitled it to costs as the prevailing party, even though HB Parkco Construction, Inc., (Parkco) obtained a greater monetary recovery on its claims against A&A under a purchase agreement. A&A further contends all of its claims under the credit agreement constituted liquidated damages, entitling it to prejudgment interest.
Parkco challenges the trial court’s order offsetting its contractual attorney fee award with fees the court awarded to A&A. Parkco contends the trial court should have named it as the sole prevailing party for attorney fee purposes because it received the greater net award.
We conclude the trial court did not err in striking A&A’s cost bill. Code of Civil Procedure section 1032 defines “‘prevailing party’” to include “the party with a net monetary recovery.” A&A did not have a net monetary recovery in the litigation because Parkco recovered more on its claims against A&A. We do not decide A&A’s challenge to the trial court’s refusal to award prejudgment interest. An order denying a motion to amend a judgment is not appealable. Any challenge to the trial court’s failure to award prejudgment interest must be made by a timely appeal of the judgment, which A&A did not do.
All statutory references are to the Code of Civil Procedure unless otherwise noted.
We also conclude the trial court did not err in designating both Parkco and A&A prevailing parties under their respective contract claims. Civil Code section 1717 defines prevailing party differently from section 1032, and authorizes a trial court to designate separate prevailing parties for each contract sued upon.
We therefore affirm the trial court’s orders striking A&A’s cost bill and offsetting Parko’s attorney fee award. We dismiss A&A’s appeal of the order denying its motion to amend the judgment.
I
Factual and Procedural Background
A&A is a supplier of ready mixed concrete and Parkco is a concrete contractor. In January 2002, the parties entered into a written credit agreement and guaranty providing that Parkco would pay invoices within specified time periods for concrete A&A delivered on a credit basis. The credit agreement also provided that Parkco’s corporate signatories, Adrian Hoyle and Brett Behrns, personally guaranteed Parko’s obligations.
In December 2004, A&A and Parkco entered into a purchase agreement in which A&A agreed to supply specific concrete mix designs to a construction project in Los Angeles at a specified price. Parkco paid for all concrete A&A provided under the purchase agreement, except for an amount worth approximately $6,000. A dispute arose over one of the mix designs, No. 16436, which Parkco asserted contained too little fly ash, causing the concrete to harden prematurely.
Because Parkco withheld payment for the concrete it received, A&A recorded a mechanic’s lien against the construction project. Parkco sued A&A for breach of the purchase agreement, contending the defective mix design forced Parkco to stop its work, repair the damage, and repour the concrete. A&A cross-complained against Parkco alleging it breached the credit agreement when it failed to pay for all the concrete delivered under the purchase agreement, and against Hoyle and Behrns for breach of their guaranty.
The lien filed against the project was released by the recording of a mechanic’s lien release bond, with Parkco as principal on the bond and Safeco Insurance Company of America (Safeco) as surety. A&A instituted a separate action against Safeco to recover on the release bond, which the court consolidated in the present action. The court tried all of the parties’ claims together. In the judgment, the trial court found in favor of Parkco on its breach of contract claim and awarded damages of $172,336.16 against A&A. The court ruled in favor of A&A on its breach of contract claim against Parkco, its enforcement of guaranty claim against Hoyle and Behrns, and its release bond claim against Parkco and Safeco, awarding A&A $91,352.19.
After the judgment, Parkco filed a motion to amend the judgment to reflect a single net award of $80,983.97 in Parkco’s favor. Parkco also filed a motion requesting the court to designate it the prevailing party and award it attorney fees in the sum of $80,131. A&A filed a cost bill, which Parkco moved to strike on the grounds A&A did not qualify as the prevailing party. A&A also filed a motion requesting designation as the prevailing party for attorney fee purposes, and sought $66,150 in fees. Finally, A&A filed a motion to amend to the judgment to include prejudgment interest.
The trial court denied Parkco’s motion to amend the judgment to reflect a single net award, but granted Parkco’s motion to strike A&A’s cost bill on the ground that Parkco was the prevailing party with a net monetary recovery. The court designated both A&A and Parkco as prevailing parties for attorney fee purposes, awarding $80,131 to Parkco and $66,150 to A&A, resulting in a net $13,981 award to Parkco. The court denied A&A’s motion to amend the judgment to include prejudgment interest, finding “there was a complicated and reasonable dispute to be resolved regarding the delivery of the concrete [citation].”
A&A appeals the orders striking its costs bill and denying its motion to amend the judgment to include prejudgment interest. Parkco appeals the order offsetting its attorney fee award with A&A’s fees.
II
Discussion
A. The Trial Court Did Not Err in Striking A&A’s Cost Memorandum
A&A contends the trial court erred in striking the cost bill because it was the prevailing party on its contract claims. We disagree.
Section 1032 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. [¶] Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (§ 1032, subds. (a)(4) & (b).)
Thus, section 1032 lists four situations in which a party is entitled to costs as a matter of right. A&A contends it falls into the first category, “the party with a net monetary recovery.” Specifically, A&A contends that because there were two contracts at issue, its success on one of the contracts entitled it to costs. This interpretation of section 1032, however, disregards the statute’s use of the word “net.” Section 1032 contemplates situations where a defendant has filed a cross-complaint against the plaintiff, resulting in competing monetary claims. (See Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198.) In such situations, “the party in whose favor the net amount is due qualifies as the prevailing party, the party with a net monetary recovery.” (Ibid.) Here, the court awarded A&A $91,352.19 on its claims, but awarded Parkco $172,336.16 against A&A. Unquestionably, Parkco, not A&A, qualifies as “the party with a net monetary recovery.”
Urging a contrary view, A&A cites Hunt v. Fahnestock (1990) 220 Cal.App.3d 628, 633 (Hunt) and Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491 (Arntz), interpreting Civil Code section 1717 to require prevailing party designation as to each separate contract sued upon. But section 1032 defines prevailing party differently from Civil Code section 1717. “Courts have consistently held the prevailing party for the award of costs under section 1032 is not necessarily the prevailing party for the award of attorney’s fees in contract actions under section 1717.” (Sears v. Baccaglio (1998) 60 Cal.App.4th 1136, 1142 (Sears); McLarand, Vasquez & Partners, Inc. v. Downey Savings & Loan Assn. (1991) 231 Cal.App.3d 1450, 1456 [“We emphatically reject the contention that the prevailing party for the award of costs under section 1032 is necessarily the prevailing party for the award of attorneys’ fees”].) A&A fails to cite any case requiring a court to award prevailing party status under section 1032 to each party that succeeds on a separate contract.
A&A asserts, however, that even if it is not the prevailing party against Parkco, it received a net monetary recovery against Safeco, Hoyle, and Behrns because these three defendants did not bring any claims against A&A. But the first category of section 1032 expressly considers only the net success of the party seeking costs, not the piecemeal results against other parties in the action. Section 1032’s first category thus stands in sharp contrast with its fourth category, which defines prevailing party as “a defendant as against those plaintiffs who do not recover any relief against that defendant.” (§ 1032, subd. (A)(4), emphasis added.) If the Legislature intended the first category of section 1032 to confer prevailing party status on a plaintiff only as to certain defendants, it knew how to specify that result. Because A&A does not fall within any of the categories of section 1032 mandating prevailing party status, we conclude the trial court did not err in striking A&A’s costs bill.
B. The Trial Court’s Order Denying A&A’s Motion to Amend the Judgment Is Nonappealable
A&A appeals the trial court’s order denying its motion to amend the judgment to include prejudgment interest. Orders denying a motion to amend a judgment, however, are not appealable. (Wickware v. Tanner (1997) 53 Cal.App.4th 570, 574; San Bernardino County Flood Control Dist. v. Grabowski (1988) 205 Cal.App.3d 885, 890.)
Although section 904.1, subdivision (a)(2), provides that a party may appeal “[f]rom an order made after a judgment,” not all postjudgment orders are appealable. An appealable postjudgment order “must affect the judgment in some manner or bear some relation to it either by way of enforcing it or staying its execution.” (Frustuck v. City of Fairfax (1963) 212 Cal.App.2d 345, 375.) The trial court’s order denying modification of the judgment to include prejudgment interest does not affect the judgment in any way. In other words, “‘[t]he order at bar leaves the judgment intact; it neither adds to it nor subtracts from it.’” (Simmons v. Santa Barbara Ice etc. (1958) 162 Cal.App.2d 23, 28.) The rationale for precluding appeal of such orders is that motions to amend judgment call upon the court to clarify, modify, or overrule its prior decision based on the same facts presented at trial. Allowing separate appeal of such orders “would virtually allow two appeals from the same decision and would, in some cases, have the effect of extending the time for appeal from the prior judgment or order.” (Cope v. Cope (1964) 230 Cal.App.2d 218, 228.)
Unlike costs, prejudgment interest is an element of damages that must be sought from the court before entry of judgment. (North Oakland Medical Clinic v. Rogers (1998) 65 Cal.App.4th 824, 830.) Here, the judgment failed to include the prejudgment interest A&A had requested. To seek appellate review of this purported error, A&A was required to appeal the judgment, which it failed to do. Moreover, we cannot construe A&A’s appeal of the trial court’s order denying prejudgment interest as an appeal from the judgment. The clerk mailed notice of entry of judgment on June 21, 2007, and A&A did not file its notice of appeal until September 27, 2007, well after the statutory deadline. (See Cal. Rules of Court, rule 8.104; Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) Accordingly, we dismiss the appeal of the trial court’s order denying A&A’s motion to amend the judgment to include prejudgment interest.
C. The Trial Court Did Not Abuse Its Discretion in Designating Both A&A and Parkco Prevailing Parties Under Civil Code Section 1717
In its appeal, Parkco contends the trial court erred in awarding both A&A and Parkco their attorney fees, thus offsetting Parkco’s fee recovery. We disagree.
For the purpose of awarding contractual attorney fees, Civil Code section 1717, subdivision (b)(1), defines the prevailing party as “the party who recovered a greater relief in the action on the contract.” “The definition of prevailing party under [Civil Code] section 1717 thus differs significantly from section 1032. Rather than focusing on who receives the net monetary award, section 1717 defines the prevailing party as the one who recovers ‘a greater relief in the action on the contract.’” (Sears, supra, 60 Cal.App.4th at p. 1143.) Thus, “[t]he fact that a party ‘obtained a higher net recovery in the lawsuit is irrelevant to the determination of which party prevailed on any particular action on a contract.’” (Arntz, supra, 47 Cal.App.4th at p. 491.)
In making a prevailing party determination under Civil Code section 1717, “the trial court is to compare the relief awarded on the contract claim or claims with the parties’ demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources. The prevailing party determination is to be made only upon final resolution of the contract claims and only by ‘a comparison of the extent to which each party ha[s] succeeded and failed to succeed in its contentions.’” (Hsu v. Abbara (1995) 9 Cal.4th 863, 876.)
Moreover, “in a lawsuit involving several contracts, attorney’s fees pursuant to Civil Code [fn. omitted] section 1717 may be awarded to the prevailing party on each contract whether or not that party is a prevailing party in the lawsuit.” (Hunt, supra, 220 Cal.App.3d at p. 630.) In other words, “When an action involves multiple, independent contracts, each of which provides for attorney fees, the prevailing party for purposes of Civil Code section 1717 must be determined as to each contract regardless of who prevails in the overall action.” (Arntz, supra, 47 Cal.App.4th at p. 491.)
Parkco contends the trial court could designate only one prevailing party under Civil Code section 1717 because its claims under the purchase agreement are interwoven with A&A’s claims under the credit agreement. Parkco notes that the contracts at issue in the Arntz case were independent from each other, but that the two contracts at issue here are “closely interrelated.” True, the claims under the two contracts appear interrelated. But the trial court’s judgment, which neither party appeals, rendered separate awards on each contract. This point is significant because Parkco asserted its claims under the purchase agreement as affirmative defenses (plaintiff’s breach and offset) to A&A’s claims under the credit agreement. Had the trial court sustained Parkco’s defenses in full, it would not have found for A&A on its contract claims. We must therefore assume the trial court found the parties’ respective contract claims were not completely interrelated.
“The trial court possesses broad discretion in determining the prevailing party to a contract. [Citation.] A reviewing court must defer to the trial court’s decision unless it is unreasonable. [Citation.]” (Hunt, supra, 220 Cal.App.3d at p. 633.) In light of the trial court’s judgment granting each party relief under its respective contract claims, we cannot say the trial court acted unreasonably in designating each the prevailing party. We therefore perceive no abuse of discretion.
III
Disposition
The trial court’s orders striking A&A’s memorandum of costs and awarding attorney fees are affirmed. The appeal of the trial court’s order denying A&A’s motion to amend is dismissed. In the interests of justice, each side is to bear its own costs of this appeal.
WE CONCUR: SILLS, P. J., FYBEL, J.