Filed 11/25/13 Golden Hill Neighborhood Assn. v. City of San Diego CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



GOLDEN HILL NEIGHBORHOOD                                            D062203
ASSOCIATION, INC., et al.,

         Plaintiffs and Appellants,
                                                                    (Super. Ct. Nos. 37-2007-00074201-
         v.                                                          CU-WM-CTL, 37-2008-00088429-
                                                                     CU-MC-CTL)
CITY OF SAN DIEGO,

         Defendant and Respondent.


         APPEAL from an order of the Superior Court of San Diego County, Richard S.

Whitney, Judge. Reversed and remanded.

         Law Offices of Charles R. Khoury Jr. and Charles R. Khoury, Jr.; Haskins &

Associates and Steven W. Haskins, for Plaintiffs and Appellants.

         Jan I. Goldsmith, City Attorney, Carmen A. Brock, Deputy City Attorney for

Defendant and Respondent.

         The Golden Hill Neighborhood Association and property owner John McNab

(collectively Association) prevailed in a prior appeal in which this court ordered the trial

court to vacate the judgment and issue a new judgment granting the Association's
requested relief against the City of San Diego (City). (Golden Hill Neighborhood Assn.,

Inc. v. City of San Diego (2011) 199 Cal.App.4th 416 (Golden Hill).) After the remittitur

was issued and the trial court entered the new judgment, the Association sought attorney

fees under the private attorney general doctrine. (Code of Civ. Proc., § 1021.5

(§ 1021.5).) The trial court denied the motion, finding it was untimely under California

Rules of Court, rule 3.1702(c)(1).1

       We determine the trial court erred in ruling that the Association's attorney fees

motion was governed by rule 3.1702(c)(1). Under settled law, rule 3.1702(b)(1) is the

applicable rule and the Association's motion was timely under this rule. We reject the

City's alternate contention that the Association waived its right to seek attorney fees by

failing to seek the fees after the initial trial or during the prior appeal. We reverse and

remand for the court to consider the Association's attorney fees motion on its merits.

                     FACTUAL AND PROCEDURAL SUMMARY

       In 2007, the Association sued the City challenging the legality of a City resolution

establishing a Golden Hill maintenance district (District) and challenging the City's initial

2007 assessments to fund services in the maintenance district. (Golden Hill, supra, 199

Cal.App.4th at pp. 426-428.) In its complaint and petition for writ of mandate, the

Association claimed the City's formation of the District and the 2007 assessments

violated article XIII D of the California Constitution (article XIIID), which limits a local




1      All further rule references are to the California Rules of Court.
                                               2
government's ability to levy special assessments against real property. (Golden Hill,

supra, at pp. 426-428.)

       The next year the Association filed a second lawsuit against the City challenging

the District's 2008 tax assessments. (Golden Hill, supra, 199 Cal.App.4th at p. 428.) The

lawsuits were consolidated. (Id. at p. 421.)

       After a bench trial on the consolidated action, the trial court issued a judgment

favoring the Association in part and the City in part, but the judgment was not entirely

clear as to the grounds for the decision or the scope of the relief provided on the

Association's claims. (Golden Hill, supra, 199 Cal.App.4th at p. 428.) No party sought

attorney fees.

       All parties appealed, and on September 22, 2011 this court issued a lengthy

published opinion holding that the City's resolution establishing the District was

unconstitutional. (Golden Hill, supra, 199 Cal.App.4th 416.) In the Disposition section,

we ordered the trial court to: (1) vacate its judgment; and (2) enter a new judgment (i)

granting the Association's petition for writ of mandate filed in the 2007 lawsuit and (ii)

ordering the issuance of a writ vacating the City's resolution forming the District and

invalidating all of the District's assessments. (Id. at p. 440.) This was an unqualified

"win" for the Association.

       The remittitur was issued on November 22, 2011. Less than one month later, the

Association filed a proposed amended judgment with the relief ordered by the Golden

Hill court. The proposed judgment included a space for costs and attorney fees to be

                                               3
awarded. Shortly after, the City filed an opposition to the proposed judgment, raising

various issues with the judgment and asserting that the Association was not entitled to

any attorney fees because it did not seek the fees after the first trial or in their appellate

briefs filed in the first appeal.

       On January 9, 2012, the Association filed a response to the City's objections, and

also requested a hearing date on the costs and attorney fees issues. The Association

argued it was entitled to raise the issue of attorney fees under section 1021.5 and had not

waived the issue.

       On January 20, 2012, the Association filed a motion seeking a hearing on the

proposed new judgment and requesting attorney fees incurred in the action. In its

supporting memorandum, the Association set forth legal and factual grounds for its

entitlement to attorney fees under the private attorney general doctrine.

       On February 9, 2012, the court signed the new judgment that had been proposed

by the Association. The judgment states:

           "1. The previous judgments in each of the consolidated cases are
           VACATED;

           "2. The Petition for WRIT of MANDATE filed by Association in
           2007 is GRANTED;

           "3. The City's Resolution No. R-302887 forming the Maintenance
           Assessment District of Golden Hill is vacated;

           "4. The assessments imposed by that Maintenance Assessment
           District are invalidated;

           "5. A Writ shall issue to carry out the above orders."

                                               4
In the final line, the judgment states the issue of costs and fees will be decided by "filed

motions."

       About one month later, on March 21, the Association filed a formal motion for

attorney fees under section 1021.5, supported by extensive documentation regarding the

nature of the attorney services and the amount of the claimed fees. On April 2, the City

filed an opposition to the attorney fees motion. The sole basis of its opposition was that

the court had no jurisdiction to consider the fees because the Association had not

requested the fees after the first trial or as part of the prior appeal. In reply, the

Association denied it had waived its rights, asserting that it was not until the Court of

Appeal issued the Golden Hill decision that it had succeeded in obtaining the primary

benefit sought—a writ invalidating the resolution forming the District and invalidating all

(including the post-2007) assessments.

       After a hearing, the trial court denied the Association's attorney fees motion on a

different ground than had been briefed by the parties. On its own motion, the court

concluded the Association's motion was not timely because it was governed by rule

3.1702(c)(1), which requires an attorney fees motion to be filed within 40 days after a

remittitur is issued. The court stated the Association "did not file [its] motion for

attorneys' fees until March 21, 2012, beyond the 40-day limit."

       Within several weeks, the Association moved for a new trial, requesting the court

to reconsider its ruling because it was legally incorrect. The Association explained that


                                                5
rule 3.1702(b)(1), rather than rule 3.1702(c)(1), governs the timeliness issue, citing

several supporting authorities, including Yuba Cypress Housing Partners, LTD v. Area

Developers (2002) 98 Cal.App.4th 1077 (Yuba). The Association argued that under rule

3.1702(b)(1), the Association's attorney fees motion was required to be filed within 60

days of the new judgment, and the Association filed its motion within this 60-day period.

The Association alternatively argued that it substantially complied with the rule because

it put the City on notice of its intent to seek attorney fees within several weeks of the

remittitur and before the new judgment was even filed.

       The court denied the new trial motion.

                                       DISCUSSION

               I. Timeliness of Motion Under the California Rules of Court

       The Association contends the court erred in concluding rule 3.1702(c)(1) applied

instead of rule 3.1702(b)(1).

                                   A. Review Principles

       The Association's contention requires that we interpret the Rules of Court. In

doing so, we apply well-settled statutory interpretation principles. (The Termo Co. v.

Luther (2008) 169 Cal.App.4th 394, 403 [traditional statutory construction principles

applicable to interpretation of California Rules of Court].) In this analysis, we focus on

the language used in the applicable rules. (Centex Homes v. Superior Court (2013) 214

Cal.App.4th 1090, 1099.) If the words are not ambiguous, " 'the plain meaning of the

language governs.' " (Taxpayers for Accountable School Bond Spending v. San Diego

                                              6
Unified School District (2013) 215 Cal.App.4th 1013, 1025.) We presume the

Legislature meant what it said, and the statute's plain meaning governs. (Centex Homes,

supra, at p. 1099.)

        We apply a de novo review standard in considering whether the trial court

properly interpreted the Rules of Court. (In re M.C. (2011) 199 Cal.App.4th 784, 804-

805.)

                                         B. Analysis

        Rule 3.1702 sets forth deadlines for attorney fees motions after trial or after an

appeal. The rule contains two separate deadlines: one applicable to fees incurred at trial

or on appeal (rule 3.1702(b)); and one applicable only to fees incurred on appeal (rule

3.1702(c)).

        The first deadline, contained in rule 3.1702(b)(1) states in relevant part:

        "(b) Attorney's fees before trial court judgment

        "(1) Time for motion

        "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 or under rules 8.822 and 8.823 in a limited
        civil case." (Italics added.)

Under this rule, the Association had 60 days from the time the new judgment was filed to

file its motion. It is undisputed the Association met this deadline.

        The second deadline, contained in rule 3.1702(c)(1) states in relevant part:


                                               7
       "(c) Attorney's fees on appeal

       "(1) Time for motion

       "A notice of motion to claim attorney's fees on appeal—other than the
       attorney's fees on appeal claimed under (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
       or under rule 8.891(c)(1) in a limited civil case." (Italics added.)

If this rule applies, the Association had 40 days from the time the remittitur was issued to

file its motion. (Rule 8.278(c)(1).) It is undisputed the Association did not meet this

deadline.

       The trial court's conclusion that rule 3.1702(c)(1) applied to the Association's

motion is not supported by the plain language of this rule. First, rule 3.1702(c)(1)

expressly applies only to motions seeking attorneys fees "on appeal." Here, the

Association was seeking fees incurred at trial as well as on appeal. Second, rule

3.1702(c)(1) applies only to attorney fee requests "other than the attorney's fees on

appeal claimed under (b)." (Italics added.) Rule 3.1702(b) applies to attorney fees for

services "up to and including the rendition of judgment in the trial court—including

attorney fees on an appeal before the rendition of judgment in the trial court." (Rule

3.1702(b)(1).) When the Association filed its attorney fees motion in March 2012, it

sought fees incurred during trial and on appeal, all of which were incurred before the

existing February 9, 2012 judgment. Because the Association sought fees for services




                                             8
during trial and appeal and these fees were incurred before the February 9, 2012

judgment, rule 3.1702(b)(1) applies.

          More than 10 years ago, a Court of Appeal reached the same conclusion under

similar facts. (Yuba, supra, 98 Cal.App.4th 1077.) The Yuba plaintiff was unsuccessful

at trial but prevailed on appeal and the appellate court remanded the case with orders for

the trial court to enter a new judgment in the plaintiff's favor. (Id. at pp. 1080, 1087.) On

remand, the plaintiff moved for attorney fees, but the trial court found the portion of the

motion seeking appellate attorney fees was untimely under former rule 870.2(c)(1), the

predecessor rule to rule 3.1702(c)(1).2 (Yuba, at p. 1084.) On appeal, the Yuba court

held the trial court erred in concluding subsection (c) contained the governing rule.

(Yuba, at pp. 1084-1086.) The court reasoned that subsection (c) excludes fee motions

falling under subsection (b), and the subsection (b) language encompasses attorney fees

on appeal " 'before the rendition of judgment,' " which necessarily refers to appellate

attorney fees sought after "the appellate court reverse[d] a judgment following trial and

direct[ed] the entry of a new judgment." (Id. at p. 1085, italics added.) "In contrast,

[subdivision (c) applies where] appellate attorney fees are incurred after rendition of [the

trial court] judgment when the appellate court simply affirms the judgment without

remanding the matter for further proceedings entailing the entry of a new judgment."

(Ibid.)




2         The two rules are essentially identical with respect to the issues raised here.
                                                9
       Accordingly, when a party moves for attorney fees after an appeal, the time

deadlines depend on whether the appellate disposition was a simple affirmance of an

existing judgment (in which case rule 3.1702(c)(1) applies) or whether the disposition

was a reversal and/or a reversal with directions to enter a new judgment (in which case

rule 3.1702(b)(1) applies). (Yuba, supra, 98 Cal.App.4th at pp. 1084-1086.) This

interpretation has been endorsed by the commentators. (See Eisenberg et al., Cal.

Practice Guide: Civil Appeals and Writs (The Rutter Group 2013) ¶¶ 14:122.11,

14:122.5 ["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"]; 2 Pearl, Cal.

Attorney Fee Awards (Cont.Ed.Bar 3d ed. 2013) §§ 11.43, 12.21.)

       Applying these principles here, the Association's motion was timely. As in Yuba,

this court reversed a judgment and directed the entry of a new judgment. (Golden Hill,

supra, 199 Cal.App.4th at p. 440.) After the remittitur was issued, the trial court entered a

new judgment consistent with the opinions expressed in the Golden Hill opinion.

Thereafter, the Association moved for attorney fees that were incurred before the new

judgment. At that point, the prior judgment was no longer in existence and had no effect.

(See Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1237-1238

["effect of an unqualified reversal is to vacate the judgment . . . as if . . . no judgment had

been entered"].) Accordingly, by definition, the fees sought by the Association were fees

"for services up to and including the rendition of [the only existing] judgment in the trial

                                              10
court—including attorney's fees on an appeal before the rendition of judgment in the trial

court." (Rule 3.1702(b)(1).) Thus, rule 3.1702(b) applied.

       The City argues Yuba is inapplicable because in that case the plaintiffs "lost" in

the trial court whereas in this case each party prevailed in part. However, with respect to

the rule 3.1702 issue, this difference is not material. The critical point is that the rule

3.1702(b)(1) deadline applies when the party is seeking appellate fees incurred before the

"new" judgment. In Yuba, as here, the court ordered the trial court to reverse the prior

judgment and enter a new judgment in the plaintiff's favor. Under those circumstances,

the plaintiff seeking prevailing party attorney fees for attorney services incurred before

the new judgment is governed by the deadline set forth in rule 3.1702(b)(1). (See Yuba,

supra, 98 Cal.App.4th at pp. 1084-1086.)

       Similarly, the fact that Yuba involved an attorney fees motion under Civil Code

section 1717, rather than under section 1021.5, is a distinction without a difference. Rule

3.1702 expressly applies to "statutory attorney's fees and claims for attorney's fees

provided for in a contract." (Rule 3.1702(a).)

       Finally, we disagree with the City's contention that the prior judgment was not

"reversed." In the Disposition section, the Golden Hill court stated: "The trial court is

directed to vacate the judgment and enter a new judgment granting the Association's

petition for writ of mandate filed in 2007 and ordering the issuance of a writ vacating the

city's resolution . . . forming the District and invalidating the assessments imposed by the



                                              11
District." (Golden Hill, supra, 199 Cal.App.4th at p. 440.) That disposition constitutes a

reversal of the prior judgment.

                    II. Association Did Not Waive Right To Seek Attorney Fees

       The City alternatively urges this court to affirm the court's order on the ground that

the Association did not file an attorney fees motion after the first trial and/or during the

first appeal. The City argues that by failing to previously move for attorney fees, the

Association waived its right to seek the fees following this court's unqualified reversal of

the judgment. Although the trial court did not reach this issue, both parties briefed the

issue in the proceedings below and in this appeal, and request that we decide the issue.

For purposes of judicial economy, we agree it is appropriate to address the issue on this

appeal.

       Under section 1021.5, " 'the court may award attorney fees to a "successful party"

in any action that "has resulted in the enforcement of an important right affecting the

public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been

conferred on the general public or a large class of persons, (b) the necessity and financial

burden of private enforcement are such as to make the award appropriate, and (c) such

fees should not in the interest of justice be paid out of the recovery, if any.". . .' "

(Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.)

       The City contends that even assuming the Association could satisfy section

1021.5's statutory elements with respect to the results achieved from the Golden Hill

decision, the Association is precluded from seeking the fees for services incurred to

                                               12
obtain these results because the Association had already obtained this same successful

outcome after the initial trial court judgment. Essentially, the City argues that there was

no need for the first appeal because the Association had already obtained its primary

requested relief after the trial, even if its attorneys did not recognize this.

       This argument is unsupported. After the initial trial, the trial court entered a

judgment in favor of the Association on its cause of action alleging that the City's special

assessments were invalid because they were not imposed for "special benefits," as is

required under article XIIID. (Golden Hill, supra, 199 Cal.App.4th at p. 429.) But the

trial court found in the City's favor with respect to the Association's requests for

declaratory and injunctive relief pertaining to future assessments and other requested

relief. (Id. at p. 429.)

       Our court stated that the "effect" of this judgment was "unclear" and "it is

uncertain whether the trial court intended to invalidate the formation of the District or

simply invalidate the 2007 assessments levied by the District as being unauthorized by

article XIII D." (Golden Hill, supra, 199 Cal.App.4th at p. 428.) In a footnote, the

Golden Hill court additionally observed that "[c]ase law is unclear as to whether a

judicial determination invalidating an initial assessment imposed in a newly formed

assessment district necessarily invalidates the formation of the assessment district

established to levy the assessment." (Id. at p. 428, fn. 9.) In this same footnote, the court

specifically rejected the City's argument that the judgment necessarily invalidated the

formation of the District. (Ibid.) Later in the opinion, the Golden Hill court noted that

                                               13
the judgment "appears to uphold the 2008 assessment," which would be inconsistent with

a conclusion that the trial court intended to invalidate the District. (Id. at p. 429.)

       After determining the trial court's judgment was unclear and uncertain, our court

engaged in a lengthy analysis of the Association's and the City's appellate arguments

regarding whether the City's formation of the District and the imposition of the

assessments satisfied constitutional requirements. (Golden Hill, supra, 199 Cal.App.4th

at pp. 429-439.) The court ultimately concluded the formation of the District violated the

state Constitution (article XIIID) because there was insufficient evidence to support the

assigned values of City-owned parcels within the District in determining whether there

was a proper affirmative vote from the property owners. (Golden Hill, supra, 199

Cal.App.4th at pp. 429-435.) Our court also concluded that all assessments were

improper and unconstitutional because the City did not separately quantify the general

and special benefits to be provided by the assessments. (Id. at pp. 436-439.) Based on

these conclusions, the Golden Hill court ordered the prior judgment "vacate[d]" and

ordered the trial court to enter a new and different judgment and a writ of mandate

vacating the City's resolution forming the District and invalidating the assessments

imposed by the District. (Id. at p. 440.)

       The Association asserts it did not seek section 1021.5 attorney fees after the initial

trial because "the benefit of the lawsuit to the residents of Golden Hill was not at all clear

until the ambiguities in the trial court's rulings were resolved by this Court of Appeal and

the prior judgment vacated, a new judgment filed and a writ issued . . . pursuant to this

                                              14
Court of Appeal's [decision]." The Association explains that it appealed the trial court

judgment "because their partial victory did not gain them what they sought, the

dissolution of the assessment district. That result was gained in the reversal and public

opinion of Golden Hill . . . ."

       The Association's position is supported by the Golden Hill decision. Based on the

statements, conclusions, and disposition set forth in the Golden Hill opinion, the

Association obtained new, qualitatively different, and substantially greater relief in the

new judgment than was initially mandated by the original trial court judgment. Thus, the

Association was entitled to seek private attorney general fees incurred for obtaining this

relief in a timely motion filed for the first time after the new judgment was entered. To

the extent the City believes that the Association did not need to file the appeal to achieve

this result, or that its earlier partial victory was no different from its later appellate

victory, those arguments can be presented to the trial court when the court determines

whether the Association met its burden to show the statutory criteria for obtaining a

section 1021.5 attorney fees award and/or when the court examines the reasonableness of

the incurred fees during trial and on appeal.




                                                15
                                      DISPOSITION

       Order reversed. The court is ordered to vacate its April 19 order finding plaintiffs'

attorney fees motion untimely under rule 3.1702(c)(1). The court is ordered to consider

the Association's attorney fees motion consistent with the conclusions reached in this

opinion. The City is ordered to bear appellants' costs on appeal.



                                                                               HALLER, J.

WE CONCUR:



BENKE, Acting P. J.



MCDONALD, J.




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