Filed 11/21/19

                           CERTIFIED FOR PUBLICATION


          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                     DIVISION TWO



HIGHLAND SPRINGS CONFERENCE
AND TRAINING CENTER et al.,
                                                   E069248
        Plaintiffs and Appellants,
                                                   (Super.Ct.No. RIC460950)
v.
                                                   OPINION
CITY OF BANNING,

        Defendant and Respondent;

SCC ACQUISITIONS, INC., et al.,

      Real Parties in Interest and
Respondents.




        APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman,

Judge. Reversed with directions.

        Chatten-Brown, Carstens & Minteer, Joshua R. Chatten-Brown and Jan Chatten-

Brown, for Plaintiff and Appellant Highland Springs Conference and Training Center.

        Leibold McClendon & Mann and John G. McClendon for Plaintiff and Appellant

Banning Bench Community of Interest Association.


                                          1
       Aleshire & Wynder and Anthony R. Taylor and Stephen R. Onstot for Defendant

and Respondent.

       Voss, Cook & Thel, Francis T. Donohue III; Bruce V. Cook and Andrew P. Cook

for Real Parties in Interest and Respondents.

                                   I. INTRODUCTION

       Plaintiffs and appellants, Highland Springs Conference and Training Center

(Highland Springs) and Banning Bench Community of Interest Association (Banning

Bench), appeal from the August 3 and 4, 2017, orders limiting the attorney fees plaintiffs

could recover from real parties in interest, SCC/Black Bench LLC (SCC/BB) and SCC

Acquisitions, Inc. (SCCA). In cost memoranda, and again in duplicative fee motions,

plaintiffs sought to recover fees they incurred in successfully pursuing a motion to amend

their October 2008 judgments against SCC/BB, to add SCCA to the October 2008

judgments as an additional judgment debtor. We reverse and remand the matter to the

court with directions to redetermine the amount of each plaintiff’s fee award.

                                  II. BACKGROUND1

       In April 2008, a judgment was entered in favor of plaintiffs against defendant and

respondent, City of Banning (the City), and SCC/BB, on plaintiffs’ writ petitions

challenging the City’s certification of an environmental impact report for a development

project known as the Black Bench project. (Highland Springs, supra, 244 Cal.App.4th at

       1 Some of the facts relevant to this appeal are taken from this court’s decision in a
prior appeal in these consolidated actions, Highland Springs Conference & Training
Center v. City of Banning (2016) 244 Cal.App.4th 267 (Highland Springs).


                                             2
p. 272.) SCC/BB was the only named real party in interest in the writ petitions. In

October 2008, the court awarded Highland Springs $421,819.96, and awarded Banning

Bench $288,920.01, in costs and attorney fees against SCC/BB. (Code Civ. Proc.,

§§ 1032, 1033.5, 1021.5.)2

       By the end of 2008, SCC/BB lost the Black Bench property in foreclosure and had

exhausted around $14 million in capital. (Highland Springs, supra, 244 Cal.App.4th at

pp. 272, 277.) SCC/BB appealed the April 2008 judgment, but its appeal was dismissed

in September 2008 after it failed to deposit the costs of preparing the record on appeal.

(Id. at p. 272.) In October 2012, plaintiffs filed an alter ego motion, under section 187,

seeking to add SCCA to the April 2008 and October 2008 judgments as an additional

judgment debtor, and thus render SCCA liable, along with SCC/BB, for paying plaintiffs’

attorney fees and costs awards against SCC/BB. The court denied the alter ego motion

on the sole ground that plaintiffs failed to act with diligence in bringing the motion, and

plaintiffs appealed. (Id. at p. 273.)

       In Highland Springs, this court reversed the order denying the alter ego motion.

(Highland Springs, supra, 244 Cal.App.4th at p. 273.) This court concluded that the

motion was erroneously denied based on plaintiffs’ delay in bringing it, because SCCA

did not show it had been prejudiced by the delay. Thus, SCCA did not meet its burden of

showing that the alter ego motion was barred by laches. (Id. at pp. 273, 282-289.) The

matter was remanded to the court to determine whether plaintiffs had proved their alter

       2   Undesignated statutory references are to the Code of Civil Procedure.


                                              3
ego claim against SCCA. (Id. at pp. 289-290.) SCC/BB did not appear in Highland

Springs. (Id. at p. 272.) The remittitur issued on May 3, 2016.3

       Following further trial court proceedings on the alter ego motion between

plaintiffs and SCCA, on February 8, 2017, the court entered a judgment in favor of

plaintiffs on the motion, adjudicating SCCA to be SCC/BB’s alter ego and amending the

October 2008 judgments against SCC/BB to add SCCA to those judgments as an

additional judgment debtor.

       On February 9, 2017, notice of entry of the February 8, 2017, judgment was

served, and each plaintiff filed a memorandum of costs after judgment (§ 685.070)

seeking fees and costs incurred in having successfully pursued the alter ego motion. In

its cost memorandum, Highland Springs sought $446,710 in fees incurred between July

2012 and February 2017, plus $815.53 in costs. In its cost memorandum, Banning Bench

sought $216,545 in fees incurred between January 2009 and January 2017, plus $320.38

in costs. On February 17, 2017, SCC/BB filed motions to tax each cost memorandum,

and SCCA later joined SCC/BB’s motions to tax.

       On April 10, 2017, each plaintiff filed a motion for attorney fees, seeking the same

fees listed in their cost memoranda, plus additional fees. In its fee motion, Highland


       3 In addition to Highland Springs and Banning Bench, three other plaintiffs
successfully challenged the Black Bench project, and two of these three plaintiffs were
awarded attorney fees and costs along with Highland Springs and Banning Bench. The
four plaintiffs who were awarded fees and costs jointly made the alter ego motion, but
only Highland Springs and Banning Bench appealed the order denying the motion.
(Highland Springs, supra, 244 Cal.App.4th at pp. 273-275 & fn. 2.)


                                             4
Springs sought $737,870.25 in fees ($490,698.50 in lodestar fees [hours worked times

hourly rates] times a multiplier of 1.5), plus fees not yet incurred in bringing the fee

motion. Banning Bench sought $536,454.39 in fees and costs (including $324,817.50 in

lodestar fees, multiplied by 1.5), plus fees not yet incurred in bringing the fee motion.

Each fee motion stated that it was being brought pursuant to sections 685.040 to 685.080

of the Enforcement of Judgments Law (the EJL) (§ 680.010 et seq.) and section 1021.5.

On May 10, 2017, SCC/BB and SCCA filed a joint opposition to the fee motions.

       Banning Bench moved to strike SCC/BB’s and SCCA’s motions to tax and also

filed a motion for sanctions against counsel for SCC/BB and SCCA. (§§ 128.5, 128.7.)

Banning Bench claimed that SCC/BB’s counsel had wrongfully caused SCC/BB to file

the motions to tax, despite knowing that SCC/BB was “cancelled in California in 2010

and . . . ceased to exist in 2011.”4

       On August 3 and 4, 2017, the court denied Banning Bench’s motion for sanctions

and motions to strike SCC/BB’s motions to tax, and entered judgment in favor of

       4  On April 19, 2010, SCC/BB, a Delaware limited liability company, filed a
Limited Liability Company Certificate of Cancellation with the California Secretary of
State, on Form LLC-4/7. The certificate stated that SCC/BB had been “dissolved” by a
vote of its members. On June 1, 2011, the State of Delaware cancelled SCC/BB’s
certificate of formation.
        On April 17, 2017, two months after SCC/BB filed its motions to tax on February
17, 2017, SCC/BB filed a certificate of revivor with the Delaware Secretary of State. On
May 5, 2017, Delaware issued a certificate stating that SCC/BB was “in good standing”
and that SCC/BB’s annual taxes had been paid to date.
        Earlier, on January 3, 2016, the California Franchise Tax Board suspended
SCCA’s corporate privileges based on SCCA’s failure to pay its taxes. But on April 24,
2017, SCCA notified the court that the Franchise Tax Board had reinstated SCCA’s
corporate privileges, and on the same day, SCCA joined SCC/BB’s motions to tax.


                                              5
plaintiffs on their cost memoranda and fee motions. The court granted the fee motions, in

part, and granted the motions to tax, in part, by awarding each plaintiff fees but limiting

those fees to $80,000 for each plaintiff, substantially fewer fees than each plaintiff was

requesting.

       The court based its $80,000 fee awards on three considerations. First, the court

ruled that plaintiffs were not entitled to recover any of the fees they incurred on appeal in

Highland Springs, because they did not file a timely motion for attorney fees on appeal

within 40 days after the remittitur in Highland Springs issued on May 3, 2016, pursuant

to rule 3.1702(c)(1) of the California Rules of Court.5

       Second, the court ruled that, under section 685.080, subdivision (a), of the EJL,

plaintiffs were not entitled to recover any fees they incurred more than two years before

they filed their fee motions.6 Third, for the two-year period during which plaintiffs could

recover fees, which, the court ruled, excluded any fees incurred on appeal in Highland

Springs, the court ruled that 200 hours of attorney time for each plaintiff was a reasonable

number of hours, and a blended rate of $400 per hour was a reasonable hourly rate, to

award each plaintiff under section 1021.5.




       5   All further references to rules are to the California Rules of Court.

       6 The court treated plaintiffs’ fee motions as superseding their cost memoranda, to
the extent the cost memoranda included fee requests.


                                               6
       Thus, the court awarded each plaintiff $80,000 in fees (200 hours times $400 per

hour), on each fee motion. The court expressly found no basis for applying a lodestar

multiplier to the lodestar fee requests under section 1021.5. Plaintiffs timely appealed.

                                     III. DISCUSSION

A. The Fees Plaintiffs Incurred in Pursuing Their Alter Ego Motion are Prejudgment

Fees Incurred in Obtaining the February 8, 2017, Judgment; Thus, the Fee Motions are

Governed by Rule 3.1702(b), not Rule 3.1702(c)(1) or the EJL

       Plaintiffs claim that the court, in limiting its fee awards to $80,000 for each

plaintiff, erred in three respects: (1) in ruling that sections 685.040 and 685.080 of the

EJL applied to the fees motions and, as a result, limiting plaintiffs’ recoverable fees to

fees plaintiffs incurred during the two-year period before they filed their April 10, 2017,

fee motions; (2) in ruling that rule 3.1702(c)(1) applied and, as a result, ruling that

plaintiffs could not recover any of the fees they incurred on appeal in Highland Springs,

given that they did not file a motion to recover such fees within 40 days after the

remittitur issued in Highland Springs; and (3) in not anchoring each fee award to each

plaintiff’s lodestar fees, given that each plaintiff was awarded $80,000.

       We agree that the court erred in the first two respects. All of the fees plaintiffs

incurred in pursuing their alter ego motion, from the time the motion was filed in October

2012 through the appeal in Highland Springs, to the February 8, 2017, judgment granting

the motion, which plaintiffs sought to recover in their February 9, 2017, cost memoranda




                                              7
and in their April 10, 2017, fee motions,7 are prejudgment fees. Thus, plaintiffs’ requests

for these fees are governed by rule 3.1702(b), not rule 3.1702(c)(1), and not sections

685.040, 685.070, or 685.080 of the EJL.

       We remand the matter for the court to redetermine the amounts of fees to award

each plaintiff under section 1021.5, based on all of the fees each plaintiff incurred in

pursuing the alter ego motion, without applying the EJL’s two-year time limitation

(§§ 685.070, 685.080) or categorically disallowing all of the fees plaintiffs incurred on

appeal in Highland Springs. Lastly, we observe that the calculation of each plaintiff’s fee

award should begin with each plaintiff’s requested lodestar fees.

       1. Applicable Legal Principles and Standard of Review

       As our state high court has observed, the Code of Civil Procedure and court rules

“distinctly address three different types of costs and fees: prejudgment costs, including

attorney fees where authorized by contract, statute or law (§ 1033.5, subd. (a)(10)), are

recovered through procedures established under section 1034, subdivision (a) and rules

3.1700 and 3.1702(b); appellate costs and fees are recovered under section 1034,

subdivision (b) and rules 3.1702(c) and 8.278; and postjudgment enforcement costs and

fees are recovered under the Enforcement of Judgments Law, specifically sections

685.040 to 685.095.” (Conservatorship of McQueen (2014) 59 Cal.4th 602, 608

(McQueen), fns. omitted.)

       7  The court treated plaintiffs’ April 10, 2017, fee motions as superseding the fees
plaintiffs sought in their February 9, 2017, cost memoranda, given that the fee motions
sought the same fees listed in the cost memoranda, plus additional fees. We do the same.


                                              8
       The central question in this appeal is whether the fees plaintiffs sought to recover

from SCCA and SCC/BB in their February 9, 2017, cost memoranda and April 10, 2017,

fee motions are postjudgment fees, governed by sections 685.040, 685.070, and 685.080

of the EJL, or are instead prejudgment fees incurred in obtaining the February 8, 2017,

judgment, and are therefore governed by rule 3.1702(b), and not rule 3.1702(c)(1), or the

EJL. We review this question de novo, given that it involves the application of statutes

and court rules to undisputed facts concerning the nature of the fees requested and the

timing of the fee requests. (See Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, 1374.)

       2. Plaintiffs Sought Prejudgment Fees, Not Postjudgment Fees

       Section 685.040 of the EJL governs claims for costs and attorney fees incurred in

enforcing a judgment. It provides: “The judgment creditor is entitled to the reasonable

and necessary costs of enforcing a judgment. Attorney’s fees incurred in enforcing a

judgment are not included in costs collectible under this title unless otherwise provided

by law. Attorney’s fees incurred in enforcing a judgment are included as costs collectible

under this title if the underlying judgment includes an award of attorney’s fees to the

judgment creditor pursuant to [section 1033.5, subd. (a)(10)(A)].”

       For purposes of section 685.040, costs include attorney fees if the judgment, for

which the postjudgment enforcement fees are being sought, includes an award of attorney

fees pursuant to a contract (§ 1033.5, subd. (a)(10)(A)) or if the fees are authorized by a

statute or law other than the EJL (Berti v. Santa Barbara Beach Properties (2006) 145

Cal.App.4th 70, 77 [attorney fees authorized by statute are fees otherwise “provided by



                                              9
law” within the meaning of § 685.040]; Rosen v LegacyQuest (2014) 225 Cal.App.4th

375, 381-382 [same]; McQueen, supra, 59 Cal.4th at p. 613 [“section 685.040 is not itself

a substantive fee-shifting statute.”]).

       Sections 685.070 and 685.080 allow a judgment creditor to pursue two alternative

means of claiming postjudgment costs, including fees, incurred in enforcing a judgment:

(1) by a memorandum of costs (§ 685.070) or (2) by a noticed motion (§ 685.080).

Under section 685.070, the judgment creditor may claim costs listed in section 685.070,

together with attorney fees “if allowed by Section 685.040” by filing and serving a

memorandum of costs on the judgment debtor, no later than two years after the costs have

been incurred, and before the judgment is fully satisfied. (§ 685.070, subds. (a), (b).)

Within 10 days after the cost memorandum is served, the judgment debtor may file a

motion to have the costs taxed by the court. (§ 685.070, subd. (c).)

       If the judgment creditor claims costs by noticed motion (§ 685.080), the judgment

creditor may claim all of the costs listed in section 685.070, plus additional costs, plus

attorney fees if allowed by section 685.040. (§ 685.080, subd. (a).) Like a memorandum

of costs (§ 685.070), a noticed motion for costs (§ 685.080) must be filed and served no

later than two years after the costs have been incurred, and before the judgment is fully

satisfied (§ 685.080, subd. (a)).8

       8 Section 685.080 provides: “(a) The judgment creditor may claim costs
authorized by Section 685.040 by noticed motion. The motion shall be made before the
judgment is satisfied in full, but not later than two years after the costs have been
incurred. The costs claimed under this section may include, but are not limited to, costs
that may be claimed under Section 685.070 . . . .”


                                             10
       In this case, plaintiffs filed cost memoranda and noticed motions to recover the

fees they incurred in pursuing their alter ego motion. On February 9, 2017, the day after

the court entered the February 8, 2017, judgment granting the alter ego motion, plaintiffs

filed and served their cost memoranda, which included fee requests. The cost

memoranda were filed on Judicial Council form MC-012, titled “Memorandum of Costs

After Judgment,” which references section 685.070. Thus, the cost memoranda indicated

that the requested costs and fees were incurred in enforcing a judgment (§ 685.040),

rather than in obtaining a judgment (§§ 1032, 1033.5).9

       On April 10, 2017, plaintiffs filed their fee motions, seeking the same fees they

sought in their cost memoranda, plus additional fees. Although the court granted the

motions to tax in part, by limiting the fee awards to $80,000 for each plaintiff, the court

in effect treated the fee motions as superseding the cost memoranda, to the extent that the

cost memoranda included fee requests. We do the same, given that, by their fee motions,

plaintiffs sought the same fees they sought in their cost memoranda, plus additional fees.

But like the cost memoranda, which were filed on Judicial Council form MC-012, the fee

motions indicated that plaintiffs were seeking postjudgment enforcement fees. The fee

motions expressly stated that they were being brought pursuant to sections 685.040 to

685.080 of the EJL, and section 1021.5.




       9Judicial Council form MC-010, titled Memorandum of Costs (Summary), is
designed for use in claiming costs incurred in obtaining a judgment. (§§ 1032, 1033.5.)


                                             11
       Given the form of plaintiffs’ cost memoranda and fee motions, it is not surprising

that the court treated the cost memoranda and fee motions as seeking postjudgment fees

incurred in enforcing plaintiffs’ October 2008 judgments against SCC/BB, rather than

fees incurred in obtaining the February 8, 2017, judgment adjudicating SCCA as

SCC/BB’s alter ego. Nonetheless, it was error to treat the cost memoranda and the fee

motions (the fee requests) as seeking postjudgment fees. In substance, the fee requests

sought prejudgment fees plaintiffs incurred in obtaining the February 8, 2017, judgment.

Thus, it was error to treat the fee requests as seeking postjudgment enforcement fees,

governed by sections 685.040 and 685.080, and to disallow all of the fees plaintiffs

incurred more than two years before they filed their fee motions on April 10, 2017.

(§ 685.080, subd. (a).)

       Although the EJL does not define “enforcement” (McQueen, supra, 59 Cal.4th at

p. 609), the EJL nowhere suggests that the filing and pursuit of an alter ego motion to

amend a judgment to add an additional judgment debtor, under section 187, constitutes

the enforcement of the judgment the movant seeks to amend. Section 187 “grants every

court the power and authority to carry its jurisdiction into effect. [Citation.] This

includes the authority to amend a judgment to add an alter ego of an original judgment

debtor, and thereby make the additional judgment debtor liable on the judgment.

[Citation.] Amending a judgment to add an alter ego of an original judgment debtor ‘“is

an equitable procedure based on the theory that the court is not amending the judgment to




                                             12
add a new defendant but is merely inserting the correct name of the real defendant.”’

[Citation.]” (Highland Springs, supra, 244 Cal.App.4th at p. 280.)

       As noted in McQueen, the EJL “addresses in detail several means of enforcing a

judgment, including liens on real and personal property (§§ 697.010-697.920), writs of

execution (§§ 699.010-701.830), garnishment of wages (§§ 706.010-706.154) and writs

of possession or sale (§§ 712.010-716.030). . . .” (McQueen, supra, 59 Cal.4th at p. 609.)

Each of these means of enforcing a judgment results, at least to some degree, in the

satisfaction of the judgment. But a section 187 motion to amend a judgment to add an

additional judgment debtor does nothing to satisfy the judgment the movant seeks to

amend. Rather, a section 187 motion, if granted, merely allows the judgment creditor to

enforce the now-amended judgment against the additional judgment debtor.10

       Additionally, it makes no sense to apply the two-year time limitations of section

685.070 or section 685.080 to, respectively, plaintiffs’ cost memoranda and fee motions.

Plaintiffs pursued their alter ego motion over the course of several years—from around

October 2012, when the motion was filed, to February 8, 2017, when the judgment

granting the motion was entered following this court’s reversal in Highland Springs, of

the initial order denying the alter ego motion. Plaintiffs had no basis to recover any of

the costs or fees they incurred in pursuing their alter ego motion until the motion was


       10 As plaintiffs point out, SCCA was not a “judgment debtor” within the meaning
of the EJL until the February 8, 2017, judgment amended the October 2008 judgments to
add SCCA to the October 2008 judgments as an additional judgment debtor. (§ 680.250
[defining “judgment debtor” as “the person against whom a judgment is rendered.”].)


                                             13
granted and plaintiffs became successful parties on the motion. (§§ 1021.5, 1032,

1033.5.)

       As the court recognized, section 1021.5 was the only basis available to plaintiffs

for claiming any fees incurred in pursuing the alter ego motion. Section 1021.5 allows

the court, upon motion, to award attorney fees “to a successful party against one or more

opposing parties in any action which has resulted in the enforcement of an important right

affecting the public interest . . . .” (Italics added.) Plaintiffs had no basis for recovering

any fees incurred in pursuing the alter ego motion, from SCCA or SCC/BB, until the

February 8, 2017, judgment was entered and plaintiffs became “successful” parties on the

alter ego motion. (§ 1021.5.)

       3. Rule 3.1702(b)(1), Not Rule 3.1702(c)(1), Applies to the Fee Requests

       Rule 3.1702(b)(1) governs claims for prejudgment attorney fees. It provides: “A

notice of motion to claim attorney’s fees for services up to and including the rendition of

judgment in the trial court—including attorney’s fees on an appeal before the rendition of

judgment in the trial court—must be served and filed within the time for filing a notice of

appeal under rules 8.104 and 8.108 in an unlimited civil case . . . .”

       All of the fees plaintiffs incurred in pursuing their alter ego motion, including the

fees plaintiffs incurred in appealing the initial order denying their alter ego motion in

Highland Springs, are prejudgment fees incurred in obtaining the February 8, 2017,

judgment granting the alter ego motion. Thus, the February 8, 2017, judgment is the




                                              14
basis for awarding plaintiffs prejudgment fees and costs incurred in successfully pursuing

their alter ego motion under rule 3.1702(b)(1) and section 1021.5.

       The court ruled that plaintiffs could not recover any of the fees they incurred on

appeal in Highland Springs because their requests for these fees were untimely under rule

3.1702(c)(1). Rule 3.1702(c)(1) provides: “A notice of motion to claim attorney’s fees

on appeal—other than attorney’s fees on appeal claimed under [rule 3.1702](b)—under

a statute or contract requiring the court to determine entitlement to the fees, the amount of

the fees, or both, must be served and filed within the time for serving and filing the

memorandum of costs under rule 8.278(c)(1) in an unlimited civil case . . . .” (Italics

added.) Rule 8.278(c)(1), in turn, provides that a party claiming costs awarded by a

reviewing court must serve and file a verified memorandum of costs in the superior court,

under rule 3.1700, within 40 days after the remittitur issues. Because plaintiffs did not

file a memorandum of costs within 40 days after the remittitur in Highland Springs issued

on May 3, 2016, the court treated plaintiffs’ requests for fees incurred on appeal in

Highland Springs as untimely. But this, too, was error, because all of the fees plaintiffs

requested, including the fees they incurred on appeal in Highland Springs, were governed

by rule 3.1702(b), not rule 3.1702(c)(1).

       Yuba Cypress Housing Partners, Ltd v. Area Developers (2002) 98 Cal.App.4th

1077 is analogous and instructive. There, the plaintiff sued the defendant to rescind a

real estate contract and to recover monies the plaintiff had paid the defendant on the

contract. After the trial court entered judgment for the defendant, the plaintiff prevailed



                                             15
on appeal; the judgment against the plaintiff was reversed, and the case was remanded to

the trial court to calculate the plaintiff’s monetary recovery and to enter a new judgment

in the plaintiff’s favor. (Id. at p. 1080.) On remand, the plaintiff moved for an award of

costs and attorney fees he incurred as the prevailing party on the contract. (Ibid.) In

opposition, the defendant argued that the plaintiff’s claim for fees incurred on appeal was

untimely, under former rule 870.2(c)(1), the predecessor to rule 3.1702(c)(1). (See id. at

p. 1084.) The trial court agreed with the defendant, and denied the plaintiff any fees he

incurred on the appeal as untimely requested. (Id. at pp. 1083-1084.)

        The Yuba court reversed. After noting that former rule 870.2(c) (the predecessor

to rule 3.1702(c)), expressly did not apply to attorney fees claimed on appeal under

former rule 870.2(b) (the predecessor to rule 3.1702(b)(1)), the court concluded that

former rule 870.2(b) applied to the plaintiff’s claim for appellate fees. (Yuba Cypress

Housing Partners, Ltd. v. Area Developers, supra, 98 Cal.App.4th at p. 1085.) The court

explained: “Although plaintiff’s appellate attorney fees were incurred after rendition of

the initial judgment in favor of defendants, that judgment was reversed and the case was

remanded with directions for the trial court to enter a new judgment in favor of plaintiff.

As a result, [the plaintiff’s] appellate attorney fees were incurred before the trial court’s

ultimate rendition of judgment in [the plaintiff’s] favor. Thus, rule 870.2(b)(1) applies

. . . .” (Ibid.)11

        11Legal commentators have further clarified when rule 3.1702(b)(1), rather than
rule 3.1702(c)(1), applies to a claim for appellate fees: “If a new judgment on the merits
must be entered following the appeal, either because the prior judgment has been


                                              16
       Similarly here, the fees plaintiffs incurred on appeal in Highland Springs were

incurred after the trial court issued its initial order and judgment denying plaintiffs’ alter

ego motion. That order and judgment was reversed on appeal in Highland Springs, and

the case was remanded to the trial court for further proceedings on the alter ego motion

which resulted in the trial court’s rendition of the February 8, 2017, judgment granting

the alter ego motion. Thus, rule 3.1702(b)(1), not rule 3.1702(c)(1), applies to plaintiffs’

requests for fees incurred on appeal in Highland Springs.

       Plaintiffs timely moved to recover the fees they incurred on appeal in Highland

Springs. Under rule 3.1702(b)(1), plaintiffs’ fee motions were required to be served and

filed within 60 days after notice of entry of the February 8, 2017, judgment was served on

February 9, 2017. (Rules 3.1702(b)(1), 8.104(a)(1)(B).) The fee motions were filed on




reversed or the judgment must be amended, Cal. Rules of Ct. 3.1702(b) applies. Under
that rule, trial court fees sought for the first time after an appeal (i.e., when a prior
adverse decision is reversed on appeal) . . . must be claimed within 60 days after entry of
a new judgment in the trial court. Any appellate fees that have been incurred before the
new final judgment should be claimed along with any prejudgment trial court fees under
Cal. Rules of Ct. 3.1701(b)(1) (requiring motions be filed within 60 days from entry of
judgment).” (Pearl, Cal. Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2018), § 11.43, p. 11-
43.) “The subdivision (b)(1) timing rule for claiming fees incurred on an interim appeal
applies (not the subdivision (c)(1) deadline) when the appellate court reverses and
remands for further proceedings entailing the entry of a new judgment.” (Eisenberg et
al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 14.122.11,
p. 14-34.) Section 685.080, subdivision (a) also does not apply to claims for appellate
attorney fees. (McQueen, supra, 59 Cal.4th at p. 608 [“‘[O]ur procedural statutes and
rules do not treat civil appeals as a part of the enforcement of judgment process.’”];
Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs, supra, at ¶ 14.122.15, pp.
14-34 to 14-35.)


                                              17
April 10, 2017, exactly 60 days after Highland Springs served notice of entry of the

February 8, 2017, judgment.

       4. Remand to Redetermine the Amount of Each Plaintiff’s Fee Award

       In awarding each plaintiff $80,000 in attorney fees (§ 1021.5) for all of the legal

work plaintiffs performed in pursuing their alter ego motion, through the rendition and

entry of the judgment granting the motion on February 8, 2017, the court erroneously

excluded all of the fees plaintiffs incurred on appeal in Highland Springs and all of the

fees plaintiffs incurred more than two years before they filed their fee motions on April

10, 2017. (§ 685.080, subd. (a).) Given these errors, the matter must be remanded for the

court to redetermine the amount of each plaintiff’s fee award.

       In redetermining the amount of each plaintiff’s fee award, the court must consider

all of the fees plaintiffs incurred in pursuing their alter ego motion. (Serrano v. Unruh

(1982) 32 Cal.3d 621, 639 [“[A]bsent circumstances rendering the award unjust, fees

recoverable under section 1021.5 ordinarily include compensation for all hours

reasonably spent, including those necessary to establish and defend the fee claim.”];

Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 [“fees on fees” or fees incurred in

claiming fees properly included in fee award]; Wallace v. Consumers Cooperative of

Berkeley, Inc. (1985) 170 Cal.App.3d 836, 849 [“[A] trial court may, in its discretion,

determine that time reasonably expended on an action includes time spent on other

separate but closely related court proceedings.”].)




                                             18
       Plaintiffs claim the court abused its discretion in calculating each $80,000 fee

award, because each fee award was “untethered from ‘all the hours reasonably spent’” by

counsel for each plaintiff in pursuing the alter ego motion, and the awards were not based

upon the “‘careful compilation of the time spent’ by each attorney.” (See (Serrano v.

Priest (1977) 20 Cal.3d 25, 49 [no abuse of discretion in awarding $800,000 in fees to be

equally shared by two law firms representing the plaintiffs].) As plaintiffs point out,

Highland Springs claimed 949.23 in attorney hours for its efforts in pursuing the alter ego

motion between 2012 and 2017, while Banning Bench claimed 368.7 in attorney hours

for its efforts over the same period.

       Plaintiffs claim that “[t]he arbitrary nature” of their respective $80,000 fee awards

“is underscored by the fact that counsel for Highland Springs spent 581.53 more hours

than counsel for Banning Bench . . . yet the trial court concluded counsel for each

[plaintiff] reasonably worked the same number of hours . . . .” We leave the question of

the amount of each plaintiff’s fee award for the court’s redetermination on remand, based

on all of the hours claimed by each plaintiff in pursuing the alter ego motion. We

observe, however, that fee awards under section 1021.5 should be “fully compensatory”

and should begin with “a lodestar figure based on the reasonable hours spent, multiplied

by the hourly prevailing rate for private attorneys in the community conducting

noncontingent litigation of the same type.” (Ketchum v. Moses, supra, 24 Cal.4th at p.

1133; Serrano v. Unruh, supra, 32 Cal.3d at p. 625.)




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B. Plaintiffs’ Claims Concerning the Effect of SCC/BB’s Cancelled Status are Moot

       Plaintiffs claim the court erroneously granted SCC/BB’s motions to tax plaintiffs’

cost memoranda, in part, by limiting each plaintiff’s fee award to $80,000, and that the

court should have instead granted plaintiffs’ motions to strike the motions to tax, because

when SCC/BB filed the motions to tax on February 17, 2017, it was not authorized to

defend or pursue any action or proceeding in a California court based on its 2010

dissolution and the 2011 cancellation of its certificate of formation.12 SCC/BB and

SCCA argue this claim is moot, “because the same fee issues were placed before the

court by [plaintiffs] on their [fee] motions . . . .” We agree with SCC/BB and SCCA.

       Although the court granted SCC/BB’s motions to tax in part by limiting plaintiff’s

fee awards to $80,000 each, the motions to tax were superseded by plaintiffs’ April 10,

2017, fee motions, which sought all of the fees plaintiffs requested in their cost

memoranda, plus additional fees. SCC/BB and SCCA filed joint opposition to the fee

motions. Thus, even if we were to agree that plaintiffs’ motions to strike the motions to

tax should have been granted, we would not be granting plaintiffs any effective relief.

The rulings on plaintiffs’ fee motions, limiting plaintiffs’ fee awards to $80,000 each,

would be unaffected. SCC/BB and SCCA were revived and in good standing on May 10,

2017, when they filed joint opposition to the fee motions. (See Jensen v. The Home




       12   See footnote 4, ante.


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Depot, Inc. (2018) 24 Cal.App.5th 92, 98 [an issue is moot if events render it impossible

for the appellate court to grant effective relief].)13

                                     IV. DISPOSITION

       The April 4, 2017, orders awarding plaintiffs $80,000 each in attorney fees are

reversed. The matter is remanded to the superior court with directions to redetermine the

amount of each plaintiff’s fee award, consistent with the views expressed in this opinion.

The parties shall bear their respective costs on appeal. (Rule 8.278.)

       CERTIFIED FOR PUBLICATION


                                                                RAMIREZ
                                                                                         P. J.


We concur:

McKINSTER
                            J.

CODRINGTON
                            J.

       13  SCC/BB and SCCA have filed a request for judicial notice, asking this court to
take judicial notice of the State of Delaware’s Limited Liability Company Act. (6 Del.
Code § 18-101 et seq.) We grant the request. Judicial notice of the statutes by this court
is mandatory, given that the trial court properly took judicial notice of the statutes.
(Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1; Evid. Code,
§§ 452, subd. (c), 459, subd. (a).) But the statutes are not relevant to the dispositive
issues in this appeal. Although SCC/BB was dissolved and its certificate of formation
was cancelled when it filed the motions to tax, plaintiffs’ claim that the court erroneously
denied plaintiffs’ motions to strike the motions to tax based on SCC/BB’s cancelled
status is moot. As we have explained, the same fee issues raised in the motions to tax
were raised in the fee motions, and we have reviewed those issues on appeal from the
orders on the fee motions.


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