ECO Property Group, LLC v. Snider Investments, LLC, et al

Case Number

19CV04971

Case Type

Hearing Date / Time

Wed, 10/02/2024 - 10:00

Nature of Proceedings

1) Motion For Attorneys’ Fees And Costs Including Those On Appeal Against Cross-Defendants; and, 2) Memorandum Of Costs On Appeal

Tentative Ruling

For Plaintiff/Cross-Complainants/Cross-Defendants Eco Property Group, LLC, Eli Owens, Roger MacFarlane, Scott Edwin Newby, and Gary William Walker, Jr.: Jason D. Annigian, James T. Ryan, Annigian Ryan LLP, Shahrokh Sheik, Weinberg Gonser LLP

For Defendant and Cross-Complainant Snider Investments, LLC, David Snider, and Cross-Complainant in Intervention and Cross-Defendant Morongo Equity Partners I, LLC: Robert B. Forouzandeh, Reicker, Pfau, Pyle & McRoy LLP

For Cross-Defendant Brent Buhrman: John Armstrong, Armstrong Law Group

RULING

(1) For all reasons discussed herein, the motion of Morongo Equity Partners I, LLC, for an award of attorney’s fees and costs against Roger MacFarlane, Eli Owens, Scott Edwin Newby, Gary William Walker, Jr., and Brent Buhrman, is granted, in part. The Court awards Morongo Equity Partners, I, LLC, attorney’s fees in the amount of $1,161,505.20. The clerk shall enter attorney fees on the January 20, 2022, Judgment Phase #1, in the amount of $1,161,505.20.

(2) For all reasons discussed herein, the clerk shall enter on the January 20, 2022, Judgment Phase #1, costs on appeal in favor of Morongo Equity Partners, I, LLC, in the amount of $3,790.75.

Background

It is not necessary for present purposes to provide a full recitation of the procedural history or material facts of this complex action, each of which are voluminous. Briefly, as alleged in the pleadings filed in this case, ECO Property Group, LLC (ECO), Snider Investments, LLC (SIL), and David Snider (Snider) each held membership interests in a limited liability company named Morongo Equity Partners I, LLC (MEPI). MEPI was previously known as Southern California Cultivation Partners, LLC. SIL owned an 80 percent membership interest in MEPI and ECO owned a 20 percent interest. SIL and Snider were the managers of MEPI. Eli Owens (Owens) and Roger MacFarlane (MacFarlane) are the members of ECO.

MEPI owns property located at 13310 Little Morongo Road in Desert Hot Springs, California (the Property). ECO invested money into MEPI to provide capital to secure land and construct property for commercial lease at the Property. The Property also included a greenhouse that MEPI leased to a cannabis cultivation company named Seed to Soul Management, LLC (Seed to Soul). The partners and members of Seed to Soul included Owens and MacFarlane (also members of ECO), Seed to Soul’s founder Brent Buhrman (Buhrman), Scott Edwin Newby (Newby), and Gary William Walker, Jr. (Walker). MEPI later terminated the lease with Seed to Soul pursuant to a settlement agreement (the settlement agreement) entered into between these parties on April 17, 2018.

ECO alleged that SIL and Snider breached the MEPI operating agreement by, among other things, failing to provide distributions and incurring debt without ECO’s consent. On September 17, 2019, ECO initiated this action by filing its original complaint (the Direct Complaint) against SIL and Snider. In the Direct Complaint, ECO alleged causes of action for, among other things, breach of contract, breach of fiduciary duties, conversion, fraudulent concealment, violations of provisions of the Corporations Code, and unfair business practices.

On November 7, 2019, SIL answered the Direct Complaint and filed a cross-complaint (Cross-Complaint 1 or the SIL Cross-Complaint) against ECO, Owens, and MacFarlane for fraud and rescission of the MEPI operating agreement. SIL alleged that it was induced to sell a 20 percent interest in MEPI to ECO, and to enter into a lease with Seed to Soul for space at the Property (the lease), based on false representations made by Owens and MacFarlane regarding whether Seed to Soul was financially capable of meeting its obligations under the lease. Unbeknownst to SIL and based on information later provided by Buhrman, Seed to Soul did not exist as an entity and did not have sufficient capital to comply with its lease obligations or to remain a tenant at the Property. SIL alleged that the only reason it agreed to grant ECO a membership interest, and to allow Owens and MacFarlane to invest, in MEPI as part of the lease transaction was because Seed to Soul, as a tenant at the Property, would have “skin in the game” and a vested interest in the success of its operations. ECO, Owens, and MacFarlane answered Cross-Complaint 1 on December 23, 2019, denying its allegations.

On June 6, 2020, with leave of court, MEPI filed its cross-complaint in intervention against Owens, MacFarlane, Buhrman, Newby, and Walker. On August 19, 2020, MEPI filed its operative first amended cross-complaint in intervention (Cross-Complaint 2 or the MEPI Cross-Complaint), seeking rescission of the lease and the settlement agreement between MEPI and Seed to Soul which MEPI contends were each fraudulently induced.

On July 9, 2020, Snider, SIL, and MEPI filed a motion for an order transferring Riverside County Superior Court case number PSC2002900 entitled ECO Property Group, LLC on behalf of Morongo Equity Partners 1, LLC v. Snider Investments, LLC, et al. (the Derivative Action or Derivative Complaint) to this Court, and consolidating the two actions. The Derivative Complaint was filed by ECO on behalf of MEPI and against Snider, SIL, and five other Defendants. The Court granted the transfer motion of Snider, SIL, and MEPI and on September 22, 2020, entered an order transferring the Derivative Action to this Court and consolidating the Derivative Action with this action. Transfer and consolidation of the two actions was completed in October 2020.

Owens, MacFarlane, Newby, and Walker answered the MEPI Cross-Complaint on September 18, 2020, and filed yet another separate cross-complaint (Cross-Complaint 3 or the STS Cross-Complaint) asserting claims against MEPI for breach of the settlement agreement, and against former Seed to Soul member Buhrman for breach of two agreements based on Buhrman’s disclosure of confidential information about Seed to Soul to MEPI.

Trial of the action was divided into two phases. Relevant here, Phase 1 proceeded as a thirteen day court trial of Cross-Complaint 1, Cross-Complaint 2, and Cross-Complaint 3. The Phase II trial of the Direct Complaint and Derivative Complaint is presently set for April 30, 2025.

On January 20, 2022, the Court entered its final statement of decision and judgment for Phase 1 (the Phase I Judgment) in favor of SIL and MEPI on the SIL Cross-Complaint and MEPI Cross-Complaint for recission of the MEPI operating agreement, the lease, and the settlement agreement between MEPI and Seed to Soul, finding that MacFarlane, Owens, Newby, Walker, and Buhrman had fraudulently induced SIL and MEPI to sign these agreements. The Court also found in favor of MEPI and Buhrman on the STS Cross-Complaint. The Court denied claims for prevailing party attorney’s fees asserted by SIL, MEPI, and Buhrman.

SIL and MEPI filed a memorandum of costs on February 4, 2022. Buhrman filed a memorandum of costs on February 17, 2022.

On February 22, 2022, ECO, Newby, Owens, MacFarlane, and Walker filed a notice of appeal from the Phase I Judgment. On March 2, 2022, the Court ordered this case stayed with the exception of motions filed by ECO, Owens, MacFarlane, Newby, and Walker to strike and tax costs claimed by SIL, MEPI, and Buhrman, which the Court granted in part and denied in part on March 15, 2022.

On March 15 and 21, 2022, MEPI and Buhrman, respectively, each filed a notice of cross-appeal from the Phase I Judgment.

On May 6, 2024, Division Six of the Court of Appeal, Second Appellate District, issued its opinion, reversing the Phase I Judgment to the extent it denied the requests of Buhrman and MEPI for attorney’s fees, and remanding the matter for further proceedings. (ECO Property Group, LLC v. Snider Investments, LLC (May 6, 2024, B318564 [nonpub. opn.] (ECO Property).) In all other respects, the court affirmed the Phase I Judgment. (Ibid.) The remittitur was filed on July 10, 2024.

On August 19, 2024, SIL, Snider, and MEPI filed a memorandum in which it claimed from ECO, MacFarlane, Owens, Newby, and Walker, costs on appeal in the amount of $3,790.75. On the same date, MEPI filed a motion for an order awarding to MEPI its attorney fees and additional costs in the total amount of $1,215,555.34 against MacFarlane, Owens, Newby, Walker, and Buhrman (the fee motion). The fee motion is opposed ECO, MacFarlane, Owens, Newby, and Walker, who the Court will refer to in this ruling as the STS Parties.

On September 5, 2024, the STS Parties filed a motion for an order striking the memorandum of costs on appeal filed by SIL, Snider, and MEPI, which was withdrawn by notice filed by the STS Parties on September 9, 2024.

Analysis

MEPI asserts that the settlement agreement at issue in Cross-Complaints 2 and 3 authorizes the recovery of prevailing party attorney’s fees. In support of the fee motion, MEPI submits the declaration of its counsel, Robert B. Forouzandeh (Forouzandeh), to which is attached a copy of the settlement agreement between MEPI (formerly Southern California Cultivation Partners, LLC) and Seed to Soul. (Forouzandeh Decl., Exh. 4.) The settlement agreement includes a provision titled “ATTORNEYS’ FEES” which states: “If any action is commenced to construe this Settlement or enforce the rights and duties set forth herein, then the party prevailing in that action shall be entitled to recover its costs and fees in that action, as well as the costs and fees of enforcing any judgment entered therein.” (Id. at Exh. 4, p. 3, ¶ 4.8.) The STS Parties do not, and cannot reasonably, dispute that the settlement agreement provides a basis for the recovery by MEPI of prevailing party attorney’s fees in this action, or that MEPI is, for present purposes, a prevailing party. (See, e.g., Opp. at pp. 1-2.)

“Except as provided for by statute, compensation for attorney fees is left to the agreement of the parties. [Citation.]” (EnPalm, LLC v. Teitler (2008) 162 Cal.App.4th 770, 774 (EnPalm).) Civil Code section 1717 provides that “[i]n any action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs.” (Civ. Code, § 1717, subd. (a).)

A “trial court has broad authority to determine the amount of a reasonable fee.” (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 (PLCM).) To determine a reasonable attorney’s fee authorized under a contract, the court begins with “the lodestar figure-a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. ‘The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.’ [Citation.] In short, after determining the lodestar amount, the court shall then ‘ “consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the section 1717 award so that it is a reasonable figure.” ’ [Citation.] The factors to be considered include the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. [Citation.] The ‘necessity for and the nature of the litigation’ are also factors to consider. [Citation.]” (EnPalm, supra, 162 Cal.App.4th at p. 774.)

The lodestar approach “ ‘anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary[]’ ” and vests the court with discretion to determine the hours “reasonably spent” on the litigation. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134, citations omitted; Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 25-26.) The court generally begins its lodestar analysis by reviewing the attorney’s time records which, if verified, are “entitled to credence in the absence of a clear indication the records are erroneous[.]” (Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359, 396 (Horsford); see also Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 562-563 [if fee request is supported by sufficient declarations and documentation, a challenge to the fee request requires similar proof].) The court must exercise its discretion so as to fully compensate the attorney for the services provided to the client, which may also include fees incurred to pursue a claim for attorney’s fees. (Horsford, supra, 132 Cal.App.4th at pp. 395-396; Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 580.)

The Forouzandeh declaration submitted in support of the motion includes a description of different time periods during this litigation which are broken down into Parts A, B, C, D, and E. (Forouzandeh Decl., ¶ 4.) (Note: The Court notes that while Forouzandeh identifies paragraph 3 as including this breakdown, it appears in a paragraph numbered as “4”.) Part A includes the time period from service of the Direct Complaint through the filing of Cross-Complaint 2. (Id. at pp. 22-23.) Part B includes the time period from the filing of Cross-Complaint 2 through submission by SIL and Snider of an offer under Code of Civil Procedure section 998 (the 998 offer). (Id. at pp. 23-24.) (Note: The 998 offer is attached to the Forouzandeh declaration as exhibit 6 and not exhibit 1.) Part C includes the time period from submission of the 998 offer through trial preparation commencing October 13, 2021. (Id. at pp. 25-26.) Part D includes the time period from the commencement of trial preparation through entry of the Phase I Judgment. (Id. at pp. 26-27.) Part E includes the time period from entry of the Phase I Judgment through appeal and the preparation and filing of the fee motion. (Id. at pp. 27 & 30.)

MEPI provides a description of activities performed by its counsel during Parts A through E which includes the filing of initiating and responsive pleadings, the service of written discovery and responses to written discovery, the taking of depositions, the service of the 998 offer, the filing of various motions including motions for preliminary injunctions and summary judgment, preparation for the trial of Phase I, the appeal of the Phase I Judgment, and the filing of the fee motion. (Forouzandeh Decl., ¶ 4.) The hourly rates of the attorneys, paralegals, and secretaries who performed services on behalf of MEPI in this action are also provided together with the total number of hours expended by each timekeeper during Parts A through E of Phase I. (Ibid.)

“The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM, supra, 22 Cal.4th at p. 1095.) The trial court has discretion to determine a reasonable fee and may make its own determination of the value of the services after considering the nature and difficulty of the litigation, the amount involved, the skill required and employed, success or failure, and other circumstances applicable to the case. (Id. at p. 1096.) Further, “[t]he court may rely on its own knowledge and familiarity with the legal market in setting a reasonable hourly rate.” (Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1009.)

The rates for each attorney who performed services for MEPI during Parts A through E range from $250 to $575 per hour. (Forouzandeh Decl., ¶ 4.) The rates for work performed by support staff range from $60 to $80 per hour for secretarial work and $140 to $300 per hour for paralegal work. (Ibid.) It does not appear that MEPI seeks a fee multiplier. Based on its own familiarity with the legal market as well as information and descriptions provided by MEPI regarding the nature of the services performed and the educational and professional background of each timekeeper identified in paragraph 4 of the Forouzandeh declaration, which the Court finds informative, the hourly rates claimed by MEPI are reasonable. In addition, though MEPI has not submitted time records or billing statements for the Court’s review because MEPI contends that these records include privileged material, there is no information or evidence to suggest to the Court that the information provided in the Forouzandeh declaration, under penalty of perjury, is untruthful or not credible. (Weber v. Langholz (1995) 39 Cal.App.4th 1578, 1587.)

Information provided in the Forouzandeh declaration also shows that counsel for MEPI expended 199.7 hours for services performed during Part A, 426.3 hours for services performed during Part B, 349.2 hours for services performed during Part C, 660 hours for services performed during Part D, and 502.5 hours for services performed during Part E, for a total of 2,137.7 hours expended by counsel in this litigation. (Forouzandeh Decl. at pp. 23-27.) The paralegals identified in paragraph 4 of the Forouzandeh declaration expended 20.6 hours during Part A, 158.5 hours during Part B, 24.3 during Part C, 220.8 hours during Part D, and 141.8 hours during Part E, which totals 566 hours of paralegal time expended in this action. (Ibid.) The total time expended in this action by the secretaries identified in the Forouzandeh declaration is 427.6 hours. (Ibid.) There is nothing to suggest that the hours expended by the support staff identified and described in the Forouzandeh declaration is unreasonable.

Furthermore, Forouzandeh declares that counsel did not bill for multiple attorneys to appear at law and motion matters or case management conferences. (Forouzandeh Decl., ¶ 6.) MEPI also contends that it attempted to resolve this matter but that ECO rejected its offers including during a Mandatory Settlement Conference. (Ibid.) MEPI notes that the terms of the 998 offer include that the operating agreement at issue be deemed valid and that ECO’s 20 percent membership interest in MEPI would be confirmed. (Id. at Exh. 6, ¶¶ 1-2.) Forouzandeh further asserts that ECO propounded over 3,000 written discovery requests, subpoenaed over 30 different third parties, filed two motions for preliminary injunctions, and one motion for summary judgment. (Id. at ¶ 4.) MEPI contends that the majority of the actions taken in this case were in response to actions taken by ECO’s counsel. (Ibid.)

The Court has reviewed the information and evidence appearing in the Forouzandeh declaration with respect to the hours expended by MEPI’s counsel and support staff. In reviewing this information and evidence, the Court finds the number of hours billed by counsel, paralegals, and other support staff to be reasonable.

The STS parties contend that the fee motion was not timely filed under California Rules of Court, rule 3.1702. As noted above, the Court denied the claim of MEPI for attorney’s fees for services up to and including entry of the Phase I Judgment. For this reason, any request for an award for attorney’s fees brought in a motion subject to the time frames set forth in California Rules of Court, rule 3.1702(b)(1), was effectively rejected by this Court. (See Glaser, Weil, Fink, Jacobs & Shapiro, LLP v. Goff (2011) 194 Cal.App.4th 423, 445.) In addition, to the extent the fees claimed by MEPI in the fee motion include those incurred on appeal, the fee motion is timely. (Cal. Rules of Court, rule 3.1702(c)(1).) Furthermore, the Court of Appeal did not instruct MEPI to file the fee motion within the time for filing a petition to the Supreme Court of California as the STS Parties appear to suggest.

Further, jurisdiction did not transfer back to this Court until July 10, 2024, the date the remittitur was issued. (Snukal v. Flightways Mfg., Inc. (2000) 23 Cal.4th 754, 774, fn. 5 (Snukal).) “The order of the appellate court, as stated in the remittitur, ‘is decisive of the character of the judgment to which the appellant is entitled ….’ [Citation.]” (Hampton v. Superior Court (1952) 38 Cal.2d 652, 656; see also Snukal, supra, 23 Cal.4th at p. 774, fn. 5 [“the terms of the remittitur define the trial court’s jurisdiction to act”].) “Where a reviewing court reverses a judgment with directions to enter judgment for the Plaintiff, the trial court is bound by the directions given. Its authority is limited wholly and solely to following the directions of the reviewing court. [Citation.] Any judgment rendered contrary to such specific directions would be void.” (Stafford v. Municipal Court, Los Angeles Judicial Dist., Los Angeles County (1960) 180 Cal.App.2d 368, 370-371.)

Here, the Court of Appeal reversed the Phase I Judgment with respect to MEPI’s claim for contractual attorney’s fees with a specific “directions to conduct further proceedings on the attorney fees issue consistent with the views expressed in” the opinion, which included that MEPI “may file a noticed motion to claim attorney fees for services up to and including the rendition of judgment in the trial court” under California Rules of Court, rule 3.1702(b)(1). (ECO Property, supra, at p. 41.) For all reasons discussed above, this Court is bound to follow these directives, and to conduct the present proceedings on the fee motion. Therefore, and for all reasons further discussed above, the STS Parties’ contention that the fee motion should be denied as untimely, or deferred as premature, is unpersuasive and would result in the Court failing to follow the directions of the Court of Appeal or to act in nonconformance with those directives. (See id. at pp. 16, 18 & 20 [noting that the Phase I Judgment is “final” as to MEPI and “fully adjudicated” the Derivative Complaint on behalf of MEPI].)

The STS Parties further contend that because MEPI has failed to allocate or apportion fees incurred with respect to each claim, issue, cross-complaint, party, or agreement, MEPI is overreaching and has failed to demonstrate that the fees claimed in the fee motion are reasonable.

“ ‘Where a cause of action based on the contract providing for attorney[ ] fees is joined with other causes of action beyond the contract, the prevailing party may recover attorney[ ] fees under section 1717 only as they relate to the contract action.’ [Citations.] The prevailing party therefore must generally allocate the attorney fees it incurred between the causes of action on the contract and the noncontract causes of action. [Citation.] [¶] Attorney fees, however, ‘need not be apportioned when incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. All expenses incurred with respect to [issues common to all causes of action] qualify for award.’ [Citations.] The governing standard is whether the ‘issues are so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not ....’ [Citations.]” (Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 829-830.)

The Court has previously found that “issues in the case overlap to such an extent that it is not really possible to distinguish between the two phases.” (March 15, 2022, Minute Order.) Though MEPI seeks to recover fees it and not SIL incurred in this litigation, SIL and MEPI were represented by the same law firm performing the same work with respect to interrelated and common issues regarding the Property, the formation of MEPI, representations regarding the existence and capacity of Seed To Soul made in connection with the sale of membership interests in MEPI and the lease, and the subsequent settlement agreement with Seed To Soul which also raised issues regarding the existence and financial or legal capacity of Seed To Soul. The arguments presented by the parties each addressed the same common and overlapping factual and legal issues to be determined by the Court.

Under the totality of the circumstances present here, which involve the same transactions and communications with respect to the operating agreement for MEPI, the lease, and the settlement agreement, and considering the common overlapping factual and legal issues arising from these three agreements, the Court finds that the claims and issues in this action are so interrelated that it would be effectively impossible or impractical to apportion the attorney’s fees incurred by MEPI as between issues relating to the settlement agreement and other matters. (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1177 [apportionment of fee award is within the court’s discretion].) Therefore, any failure by MEPI to apportion its attorney’s fees is not a sufficient basis on which to deny the fee motion.

Based on the evidence and information offered by MEPI as further detailed above, the Court finds that the hours spent by MEPI’s counsel on this matter and the hourly rates charged are reasonable. The Court also finds that the time spent to prepare the fee motion is reasonable. Therefore, the Court will grant the fee motion, in part, and award to MEPI attorney’s fees in the amount of $1,161,505.20.

MEPI also seeks to recover non-statutory litigation costs pursuant to the attorney’s fee provision further described above, which total $53,952.29. (Forouzandeh Decl., ¶ 11.) MEPI states that these non-statutory costs do not include those previously awarded pursuant to the Court’s March 15, 2022, Minute Order granting, in part, the motion to strike or tax the memorandum of costs filed by SIL and MEPI on February 4, 2022. Rather, MEPI appears to claim additional costs which are not otherwise recoverable under Code of Civil Procedure section 1033.5. (See id. at ¶ 11 & fn. 4 [referencing unspecified legal research, delivery, photocopying, mediation, and other costs not typically allowed by statute].)

Costs not mentioned in section 1033.5 “may be allowed or denied in the court’s discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) “All costs, whether expressly permitted under section 1033.5, subdivision (a) or awarded in the trial court’s discretion pursuant to section 1033.5(c)(4), must be ‘reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation’ [citation] and ‘reasonable in amount’ [citation].” (Segal v. ASICS America Corp. (2022) 12 Cal.5th 651, 658.)

Wholly absent from the Forouzandeh declaration and the memorandum submitted in support of the motion is any information which would permit the Court to determine whether costs claimed in the fee motion were reasonably necessary to the litigation or merely beneficial to its preparation. In addition, MEPI has failed to offer any reasoned factual or legal argument showing that it has pleaded and proved the additional non-statutory costs claimed in the motion. (See, e.g., Arntz Contracting Co. v. St. Paul Fire & Marine Ins. Co. (1996) 47 Cal.App.4th 464, 491-492; Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 551.) For these reasons, the Court will deny the motion to the extent it seeks an award of additional costs not otherwise allowed under Code of Civil Procedure section 1033.5, pursuant to the attorney’s fee provision in the settlement agreement.

As further detailed above, on August 19, 2024, MEPI, SIL, and Snider filed a memorandum claiming costs on appeal in the amount of $3,790.75. “Except as provided in this rule or by statute, the party prevailing in the Court of Appeal in a civil case other than a juvenile case is entitled to costs on appeal.” (Cal. Rules of Court, rule 8.278(a)(1).) The parties here do not dispute that MEPI is the prevailing party for purposes of an award of costs on appeal. (See Cal. Rules of Court, 8.278(a)(2).) In addition, the Court of Appeal awarded MEPI its costs on appeal against ECO and the STS Parties. (Eco Property, supra, at p. 41; July 10, 2024, Remittitur.)

MEPI claims the amount of $982.80 for filing fees, and the amount of $2,807.95 for preparation of the original and copies of the clerk’s transcript or appendix, each of which are allowable under California Rules of Court, rule 8.278(d)(1)(A) & (B). The Court further notes that the STS Parties have withdrawn their motion to strike the memorandum of costs on appeal filed by MEPI. Therefore, and for all reasons discussed above, the Court will also award MEPI the costs claimed in its August 19, 2024, memorandum of costs on appeal. (Harbour Landing-Dolfann, Ltd. v. Anderson (1996) 48 Cal.App.4th 260, 265.)

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