Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from an order of the Superior Court of Orange County No. 06CC01934, Peter J. Polos, Judge. Affirmed.
Neufeld Law Group, Paul S. Marks, John M. Kennedy and Gaelle H. Gralnek for Defendant and Appellant.
Gutierrez, Preciado & House and Calvin House for Plaintiff and Respondent.
O’LEARY, ACTING P. J.
The Imagery Group, Inc. (Imagery) appeals from the order awarding it costs and attorney fees following two appeals. It contends the trial court improperly struck as untimely certain attorney fees it claimed postappeal. We find no error and affirm the order.
FACTS
Epicor Software Corporation (Epicor) sued Imagery for breach of contract after Imagery backed out on the purchase of manufacturing software from Epicor. Imagery filed a cross complaint against Epicor for fraud, misrepresentation, and rescission. A jury returned a general verdict in Imagery’s favor on the complaint and in Epicor’s favor on the cross complaint. On June 1, 2007, Epicor filed its notice of appeal, and in Epicor Software Corporation v. The Imagery Group, Inc. (May 22, 2008, G038748) [nonpub. opn.] (Epicor I), we affirmed the underlying judgment and awarded Imagery its costs on appeal.
The judgment, which was entered on April 9, 2007, provided the prevailing party’s costs and attorney fees would “be determined in accordance with [the] code.” Imagery filed a memorandum of costs, and Epicor filed a motion to tax costs. On June 7, 2007, Imagery filed a motion for attorney fees as provided for by contract. On June 28, 2007, the court ruled on the motion for attorney fees and motion to tax costs. It awarded Imagery $14,849 in costs and $141,363.80 in attorney fees. On August 10, 2007, Epicor filed it second notice of appeal, and in Epicor Software Corporation v. The Imagery Group, Inc. (May 22, 2008, G039104) [nonpub. opn.] (Epicor II), we affirmed the postjudgment attorney fees order and awarded Imagery its costs on that appeal as well.
On September 8, 2008, Imagery filed a second motion for attorney fees seeking its attorney fees “incurred on appeal and in collection of the judgment....” Imagery requested an award of $50,000, which its counsel repeatedly stated in declarations and moving papers were attorney fees Imagery had incurred “since June 28, 2007 (the last date for which fees were previously awarded by the trial court).” But included in its request was an invoice dated July 3, 2007, for $16,537.50 in attorney fees incurred by Imagery between June 4, 2007, and June 28, 2007, all related to preparing its original motion for attorney fees and preparing its opposition to Epicor’s motion to tax costs.
Epicor opposed the motion for attorney fees. It conceded Imagery was entitled to reasonable fees for the two appeals but opposed an award of fees for “pre appeal” work. On October 10, 2008, the court entered its order awarding Imagery $30,863 in attorney fees. It disallowed the $16,537.50 in fees from the July 3, 2007, invoice. (Other amounts deducted from Imagery’s request are not challenged in this appeal.) In its minute order the court stated those fees were for “pre-appeal work” and thus untimely under California Rules of Court, rule 3.1702(b).
DISCUSSION
Imagery contends the trial court erred by disallowing the $16,537.50 in fees billed on the July 3, 2007, invoice that were incurred in preparing the original motion for attorney fees. It argues the fees were timely sought following appeal and thus within the court’s discretion to award. We find no error.
The usual standard of review for an award of attorney fees is abuse of discretion. (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169, 1175-1176.) But when, as here, we are considering whether the trial court had the authority to award attorney fees, we are presented with an issue of law that is reviewed de novo. (Ibid.) California Rules of Court, rule 3.1702, governs motions for attorney fees. It provides attorney fees “for services up to and including the rendition of judgment in the trial court” must be sought within the time for filing a notice of appeal. (Cal. Rules of Court, rule 3.1702(b)(1).) Attorney fees on any subsequent appeal must sought within the time for filing the memorandum of costs on appeal (i.e., within 40 days after issuance of the remittitur). (Cal. Rules of Court, rules 3.1702(c)(1) & 8.278(c)(1).)
Imagery timely filed its original attorney fees motion, and was in fact awarded substantial attorney fees but argues it was only required to claim in that motion its fees incurred up to the time judgment was entered. Here, the original judgment was entered on April 9, 2007. Thus, Imagery reasons any fees incurred after that date, including fees incurred for bringing the original attorney fees motion itself, did not have to be sought in the original attorney fees motion and could be claimed after the appeal. We disagree.
It is well established that a proper element of a posttrial attorney fees award are the fees incurred in bringing the attorney fees motion. (See Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580; Serrano v. Unruh (1982) 32 Cal.3d 621, 632-633, 639.) The proper time for seeking its attorney fees related to bringing the original attorney fees motion was in the original attorney fees motion.
Imagery suggests it could not have sought the fees related to the original motion at the time of the original fees motion because the disallowed invoice mostly covered the hours spent after the motion was filed on June 7, 2007, through the hearing at which the original motion was granted on June 28, 2007. But it is common practice for attorneys to file supplemental declarations covering such fees and/or to estimate the reasonable fees that will be incurred in replying to opposition and attending the hearing on the motion. The trial court hearing the attorney fees motion is in the best position to determine what constitutes a reasonable fee for the attorney fees motion.
Imagery also suggests that at least some of the fees on the disallowed invoice were in fact for services related to the appeal of the underlying judgment and not the original attorney fees motion. It cites a 5.2 hours billing entry for June 5, 2007 (two days before the original attorney fees motion was filed), for “review[ing] notice of appeal,” but the full entry was “research, review and revise motion for attorneys’ fees; review notice of appeal; e-mail communication with client[.]”
Changing tack somewhat in its reply brief, Imagery cites Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22-23 (Wanland), for the proposition that California Rules of Court, rule 3.1702(c)(1), must be read broadly to provide that any attorney fees incurred after a notice of appeal is filed are related to the appeal. Accordingly, it argues because Epicor’s notice of appeal from the underlying judgment was filed June 1, 2007, any fees incurred thereafter are necessarily related to the appeal (and by inference not to “rendition of judgment”) and thus could be timely sought after the appeal was concluded.
But Wanland is inapposite. In that case, defendant was awarded its attorney fees following a successful anti-SLAPP motion (Code Civ. Proc., § 425.16). Plaintiffs appealed and filed an undertaking to obtain a stay of enforcement of the attorney fees award. The court held the fees incurred by defendants for litigating the adequacy of that undertaking was directly related to the original appeal and thus authorized by its award of costs and attorney fees on the original appeal. (Wanland, supra, 141 Cal.App.4th at pp. 22-23.) Wanland does not support the suggestion attorney fees incurred in bringing a motion for trial-related attorney fees are related to the appeal.
DISPOSITION
The order is affirmed. Respondent is awarded its costs on appeal.
WE CONCUR: MOORE, J., IKOLA, J.