Filed 4/19/17 Mecchi v. Mecchi CA3
NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.



IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Tehama)
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JEFFREY MECCHI,

Plaintiff and Appellant,

v.

LEAH JANE MECCHI et al.,

Defendants and Respondents.
C076856

(Super. Ct. No. CI68803)




Plaintiff Jeffrey Mecchi appeals from the trial court’s orders denying his motion for a preliminary injunction and granting defendants’ motion for attorney’s fees as the prevailing party on the motion under Code of Civil Procedure section 527.6, subdivision (r).
On appeal, plaintiff contends that the trial court committed error in (1) denying his motion to continue the hearing on the preliminary injunction “due to lack of proper notice,” and (2) failing to follow the Tehama County Superior Court’s fee schedule in granting defendants’ motion for attorney’s fees. Following these rulings, the trial court issued a decision after trial in this case shortly after plaintiff filed his brief on appeal. On our own motion, we augmented the record on appeal to include the trial court’s decision following trial and ordered plaintiff to show cause why his appeal should not be dismissed as moot. Plaintiff then filed a letter brief conceding that the primary issue on appeal, the denial of his motion for a preliminary injunction, was rendered moot by the trial court’s order after trial. However, plaintiff contends that his appeal of the attorney’s fee award related to that motion was not rendered moot.
We affirm.
FACTUAL AND PRCOEDURAL BACKGROUND
This case concerns a “sibling rivalry that has escalated to dangerous proportions.” Plaintiff filed a complaint alleging causes of action against defendants Leah Jane Mecchi and Larry Hennick for ouster, trespass, ejectment, forcible entry, intentional infliction of emotional distress, conversion, injunctive relief, declaratory relief, and punitive damages related to his claims over access to parcels of family property. Plaintiff contends that he filed a motion for a preliminary injunction on December 6, 2013. After several continuances of the hearing on this motion, the parties appeared for hearing on April 7, 2014. At the hearing, the trial court granted defendants’ request for hearing on a motion for attorney’s fees, stating: “At the same time as the attorney’s fees hearing is set, counsel may wish to set the matter for a hearing on the injunction and the Court will entertain that argument. That does not mean the hearing will be held the same day of course, that will just be for setting only -- for potential setting only.”
On April 30, 2014, while the motion for a preliminary injunction was pending, defendants filed a motion for attorney’s fees, contending that plaintiff’s counsel’s refusal to meet and confer in a timely manner forced “defendants to incur fees and costs relative to responding to plaintiff’s Motion for Preliminary Injunction, as well as plaintiff’s Complaint.” Based on plaintiff’s failure to meet and confer, defendants asked the trial court to deny plaintiff’s motion “without a costly hearing” and “award defendants their attorney’s fees and costs as prevailing parties pursuant to [] section 527.6(r).” Defendants sought attorney’s fees in the amount of $18,550.00 and costs in the amount of $1,415.66. Defendants also requested that the hearing take place on May 29, 2014, and that the court hear the motion for preliminary injunction immediately prior to hearing the motion for attorney’s fees to save time and prevent further accumulation of fees and costs. In support of their motion, defendants submitted an attorney declaration with an attached itemized chart of fees and costs. Plaintiff filed an opposition to the attorney’s fees motion, contending that the motion was unripe because the grounds for the attorney’s fees motion were prevailing on the preliminary injunction, and the trial court had deferred ruling on the injunction. Plaintiff further argued that defendants’ fees request was excessive and failed to comply with the Superior Court of Tehama County, Local Rules, rule 10 (Rule 10). Plaintiff also requested the court to set a hearing on his motion for a preliminary injunction.
The trial court heard both plaintiff’s motion for a preliminary injunction and defendants’ motion for attorney’s fees on May 29, 2014, and issued separate orders denying plaintiff’s motion for preliminary injunction and granting defendants’ motion for attorneys’ fees on June 16, 2014. The court awarded attorney’s fees to defendants in the amount of $15,250.00.
Plaintiff filed a timely notice of appeal. His primary argument on appeal concerned the trial court’s denied of his motion for a preliminary injunction due to the confusion over whether the court would hear the motion on the same date as the hearing on the motion for attorney’s fees. However, shortly after plaintiff filed his opening brief, the case proceeded to trial and on June 6, 2015, the trial court entered an order granting permanent injunction relief. We augmented the record on appeal to include the trial court’s decision following trial and ordered plaintiff to show cause why his appeal should not be dismissed as moot. On June 13, 2016, plaintiff filed a letter brief conceding that the denial of his motion for a preliminary injunction was rendered moot by the trial court’s order after trial. However, plaintiff maintains that his appeal of the trial court’s order granting attorney’s fees to defendants as the prevailing party was not rendered moot and is appealable under the collateral order doctrine.
DISCUSSION
As a preliminary matter, we must determine whether the attorney’s fees order is appealable under the collateral order doctrine. Generally, there is a “ ‘one final judgment’ ” rule under section 904.1, subdivision (a)(1), “a fundamental principle of appellate practice that prohibits review of intermediate rulings by appeal until final resolution of the case.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 697.) One exception to the “ ‘one final judgment’ rule” is the collateral order doctrine. An order is collateral if: (1) “The order is collateral to the subject matter of the litigation”; (2) “The order is final as to the collateral matter”; and (3) “The order directs the payment of money by the appellant or the performance of an act by or against appellant.” (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 297-298.) An order “is not ‘collateral’ if it is a ‘necessary step’ to the determination of the issue in the case.” (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1545.) In this case, the fees order was collateral to the subject matter of the litigation, final as to the issue of attorney’s fees related to the preliminary injunction motion, and directed the payment of money by plaintiff. Accordingly, the order is appealable under the collateral order doctrine.
Plaintiff’s argument on appeal of the attorney’s fees order is sparse and hinges entirely on the applicability of Rule 10, a local trial court rule that prescribes a fixed fee schedule in certain cases. Rule 10 provides in pertinent part: “Whenever a prevailing party is entitled to the recovery of reasonable attorney fees, those fees will be fixed by reasonable compensation computed on an hourly basis. When fees are to be fixed by court fee schedule they shall be as follows, exclusive of costs and interest. [¶] 1. 25% of the first two thousand dollars ($2,000); [¶] 2. 20% of the next four thousand dollars ($4,000); [¶] 3. 15% of the next four thousand dollars ($4,000); [¶] 4. 10% of the next ten thousand dollars ($10,000); [¶] 5. 5% of the next thirty thousand dollars ($30,000); and [¶] 6. 2% of amounts in excess of the first fifty thousand dollars ($50,000).” Rule 10 further provides, “A request for fees in excess of this schedule shall be allowed only upon legal authority and a declaration provided by the prevailing supporting same.” Plaintiff contends the trial court abused its discretion by not following the fee schedule or alternatively requiring “legal authority and a declaration” by the prevailing party.
Plaintiff’s argument is belied by the fact that a court cannot apply a fee schedule that awards fees as a percentage of the underlying judgment when there is no judgment. This is perhaps the reason Rule 10 expressly limits use of the fee schedule to two narrow scenarios: (1) “When fees are to be fixed by court fee schedule,” and (2) “Where a prevailing party is entitled to the recovery of reasonable attorney fees in an otherwise appropriate clerk’s judgment.” (Rule 10.) Outside those two scenarios, Rule 10 provides, “Whenever a prevailing party is entitled to the recovery of reasonable attorney fees, those fees will be fixed by reasonable compensation computed on an hourly basis.” Here, the trial court exercised its discretion and granted reasonable attorney’s fees to the prevailing party in compliance with this portion of Rule 10. (See § 527.6, subd. (r) [“The prevailing party in an action brought under this section may be awarded court costs and attorney’s fees, if any”].) There was no contract, statute, or other provision prescribing that fees were to be fixed by fee schedule and this is not a case involving a clerk’s judgment. The fee schedule is thus inapplicable. Further, even if plaintiff’s interpretation of Rule 10 were correct and the trial court could only deviate from the fee schedule upon the prevailing party’s citation to legal authority and a declaration, defendants provided both in their motion for attorney’s fees. Accordingly, we affirm.
DISPOSITION
The judgment is affirmed. Plaintiff shall pay defendants’ costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1), (5).)



MURRAY , J.



We concur:



NICHOLSON , Acting P. J.



RENNER , J.