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Pacific Custom Pools4/17/2000
CERTIFIED FOR PUBLICATION
APPEAL from a judgment of the Superior Court of Los Angeles County, Kenneth R. Freeman, Judge. Affirmed in part and reversed in part.
On this consolidated appeal, Pacific Custom Pools, Inc., challenges the trial court's granting of summary judgment based on the failure of Pacific Custom Pools to substantially comply with the contractor's licensing requirements, and Turner Construction Company questions the court's denial of its attorney's fees. We hold that the trial court properly granted summary judgment but erred in denying attorney's fees.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Universal City Studios, Inc. ("Universal") entered into a general contract with Turner Construction Company ("Turner") for the construction of the Jurassic Park ride (the "project") at the theme park in Universal City, California. In turn, Turner entered into a subcontract ("the Agreement") on the project with Pacific Custom Pools, Inc. ("PCP"), pursuant to which PCP agreed to furnish and install all water treatment work for the project for the contract price of $959,131. PCP further subcontracted its work to Harrington Industrial Plastics, Inc. ("Harrington") and Pacific Engineered Projects ("PEP") for those companies to provide materials and supplies on the project. PCP performed work on the project from April 1995 until June 1996 for which it was paid $897, 719. During the period of October 12, 1995 to March 14, 1996, PCP's contractor's license was under suspension, and although the license had also expired as of January 31, 1996, it was not renewed until May 5, 1996.
Harrington filed an action for breach of contract and foreclosure of mechanics lien against PCP, Turner, and Universal, alleging that PCP had failed to pay $95,941.85 due under a contract for performance of work on the project. PEP also filed suit against the same parties for similar relief, claiming that it was owed $55,587.38 under its contract with PCP.
Turner then filed a cross-complaint against PCP for indemnification against the claims of Harrington and PEP, and later PCP filed a cross- complaint against Turner and Universal seeking damages of $2,000,000 based on claims that misrepresentations had been made as to the scheduling of the order of work. By order of the superior court the Harrington and PEP cases were deemed related to each other and assigned to an all purpose judge.
On February 27, 1998, the trial court granted summary judgment to Turner and Universal on PCP's cross-complaint on the grounds that PCP was unlicensed during a period of its contract, and under Business and Professions Code section 7031 an unlicensed contractor may not maintain an action for work performed. Turner's cross-complaint against PCP for indemnity was thereafter voluntarily dismissed without prejudice.
In the judgment that was entered in favor of Turner and Universal, the court identified Turner and Universal as the prevailing parties. Turner then filed a motion for attorney fees under Code of Civil Procedure section 1032.5 and Civil Code section 1717, which was denied by the court.
PCP appeals from the judgment, and Turner appeals from the order denying attorney fees. Both appeals will be addressed in this opinion.
DISCUSSION
A. Summary Judgment Motion
Under Code of Civil Procedure section 437c, subdivision (o)(2), the statute governing summary judgment motions, " defendant . . . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete de
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