This appeal involves post-judgment orders from a legal malpractice case brought by Sulphur Mountain Land and Livestock Co., Malibu Broadbeach L.P., and Pacific Coast Management against Knapp, Petersen & Clarke and several individuals. The trial court granted Sulphur and Malibu's motion for attorney's fees and costs, denied the defendants' motion for fees and motion to tax costs, finding Sulphur and Malibu were the prevailing parties. The defendants appeal, arguing: 1) the trial court failed to properly determine the prevailing party under Civil Code §1717 before considering C.C.P. §998; 2) even if it had, it abused its discretion in finding Sulphur and
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
When Plaintiff Offers for Defendants to Validate Plaintiff's "Lease" and "Cas...jamesmaredmond
This supplemental declaration was submitted by David Chatfield, an attorney representing Sulphur Mountain Land and Livestock Co. LLC, in opposition to a motion to compel further deposition of Stephen Gaggero. Chatfield states that he previously offered to show opposing counsel a document establishing Sulphur Mountain's right to lease the premises in question, without copying it, but received no response. Chatfield offered again by letter on August 26th and again received no response. The declaration aims to show Chatfield attempted to resolve the issue without further court action.
This document is a declaration by Richard Miyamoto in support of a judgment creditor's opposition to a debtor's motion to avoid a judicial lien. It summarizes a long legal dispute between the parties involving multiple bankruptcy filings by the debtor designed to hinder and delay collection of the judgment. It details the procedural history of the case, including previous court rulings against the debtor for failure to comply with discovery orders. Exhibits are attached documenting the lien and various court orders in the case.
This document appears to be a record of legal filings and judgments in a court case between Sulphur Mountain Land and Livestock Co LLC and several other parties including John Redmond, Maureen Redmond, Geraldine Redmond, and Somerset Farms LLC. It includes filings such as proofs of service, judgments, appeals, motions, and other legal documents spanning from 2005 to 2015 regarding a renewal of judgment, claims of exemption, examinations of judgment debtors, transcripts for appeal, and more. The document provides a chronological record of legal proceedings and filings for this case over a ten year period.
This appeal concerns discovery disputes in an adversary proceeding brought by Sulphur Mountain Land & Livestock, LP against John and Maureen Redmond regarding their bankruptcy filing. Sulphur Mountain had previously sued the Redmonds over a commercial lease guaranteed by their daughter. The bankruptcy court granted Sulphur Mountain's motion to compel discovery from the Redmonds and later issued terminating sanctions against them for alleged noncompliance, even though the Redmonds had produced documents and been deposed. The Redmonds are appealing these rulings.
This document summarizes testimony from Stephen Gaggero during a trial. Gaggero testified that he currently resides on a 1,500 acre ranch in Ventura County that he uses for equestrian activities, cattle grazing, and growing crops. He has lived in California his entire life. After leaving high school halfway through 10th grade, he became a licensed general contractor and built homes for others until 1985 when he began developing his own real estate projects, primarily custom single-family homes along the California coast from Malibu south. He also remodeled apartment buildings and small shopping centers that he kept in his real estate portfolio.
The court granted a motion to add additional judgment debtors to a $1.8 million judgment against plaintiff Stephen Gaggero. The additional judgment debtors included six entities (four limited partnerships and two LLCs) that were formerly owned by Gaggero, totaling $35-40 million in assets in 1998. It also included the trustee, Joseph Praske, of three trusts that now owned the entities, after Gaggero transferred ownership of the entities to the trusts in 1998 as part of an "estate plan". The court found all were alter egos of Gaggero based on evidence that Gaggero controlled the entities and trusts, and used them to avoid creditors like the defendants in this case. The additional judgment
This document is the defendants' closing argument in response to the plaintiffs' closing argument regarding trust documents presented in a real estate dispute. It argues that the plaintiffs' claims of fraudulent conduct by the defendant are unsupported and illogical. It asserts that the trust documents in question have no relevance to the legal issues being tried, which involve the interpretation of purchase and sale agreements for two properties. The defendant argues that the plaintiffs have presented no valid legal basis to rescind the agreements and that the evidence shows the plaintiffs were unable to complete the purchase for financial reasons.
Motion to amend judgment points & authorities- signedjamesmaredmond
This document is a motion to amend a judgment to add additional judgment debtors. It describes an underlying malpractice judgment against Stephen Gaggero for over $2 million. It details Gaggero's estate plan from 1997 whereby he transferred over $35 million in personal assets to various trusts, corporations, limited partnerships and limited liability companies. The motion argues that these entities should be added as judgment debtors as they are alter egos of Gaggero. It provides background on the entities and trusts, describes Gaggero's continued control over the assets, and argues the separate existence of the entities should be disregarded as they were created to shield Gaggero's assets from creditors like the judgment creditors in this case. The
When Plaintiff Offers for Defendants to Validate Plaintiff's "Lease" and "Cas...jamesmaredmond
This supplemental declaration was submitted by David Chatfield, an attorney representing Sulphur Mountain Land and Livestock Co. LLC, in opposition to a motion to compel further deposition of Stephen Gaggero. Chatfield states that he previously offered to show opposing counsel a document establishing Sulphur Mountain's right to lease the premises in question, without copying it, but received no response. Chatfield offered again by letter on August 26th and again received no response. The declaration aims to show Chatfield attempted to resolve the issue without further court action.
This document is a declaration by Richard Miyamoto in support of a judgment creditor's opposition to a debtor's motion to avoid a judicial lien. It summarizes a long legal dispute between the parties involving multiple bankruptcy filings by the debtor designed to hinder and delay collection of the judgment. It details the procedural history of the case, including previous court rulings against the debtor for failure to comply with discovery orders. Exhibits are attached documenting the lien and various court orders in the case.
This document appears to be a record of legal filings and judgments in a court case between Sulphur Mountain Land and Livestock Co LLC and several other parties including John Redmond, Maureen Redmond, Geraldine Redmond, and Somerset Farms LLC. It includes filings such as proofs of service, judgments, appeals, motions, and other legal documents spanning from 2005 to 2015 regarding a renewal of judgment, claims of exemption, examinations of judgment debtors, transcripts for appeal, and more. The document provides a chronological record of legal proceedings and filings for this case over a ten year period.
This appeal concerns discovery disputes in an adversary proceeding brought by Sulphur Mountain Land & Livestock, LP against John and Maureen Redmond regarding their bankruptcy filing. Sulphur Mountain had previously sued the Redmonds over a commercial lease guaranteed by their daughter. The bankruptcy court granted Sulphur Mountain's motion to compel discovery from the Redmonds and later issued terminating sanctions against them for alleged noncompliance, even though the Redmonds had produced documents and been deposed. The Redmonds are appealing these rulings.
This document summarizes testimony from Stephen Gaggero during a trial. Gaggero testified that he currently resides on a 1,500 acre ranch in Ventura County that he uses for equestrian activities, cattle grazing, and growing crops. He has lived in California his entire life. After leaving high school halfway through 10th grade, he became a licensed general contractor and built homes for others until 1985 when he began developing his own real estate projects, primarily custom single-family homes along the California coast from Malibu south. He also remodeled apartment buildings and small shopping centers that he kept in his real estate portfolio.
The court granted a motion to add additional judgment debtors to a $1.8 million judgment against plaintiff Stephen Gaggero. The additional judgment debtors included six entities (four limited partnerships and two LLCs) that were formerly owned by Gaggero, totaling $35-40 million in assets in 1998. It also included the trustee, Joseph Praske, of three trusts that now owned the entities, after Gaggero transferred ownership of the entities to the trusts in 1998 as part of an "estate plan". The court found all were alter egos of Gaggero based on evidence that Gaggero controlled the entities and trusts, and used them to avoid creditors like the defendants in this case. The additional judgment
B189989 gaggero/sulphur mountain v geraldine, somerset farms, john, maureen r...jamesmaredmond
This document summarizes a hearing in the Superior Court of Ventura County regarding Sulphur Mountain Land and Livestock Company's motion for attorneys' fees and the defendants' motion to tax costs. The defendants' attorney argued that the case should have been filed as a limited action in municipal court based on the amount in dispute. He also argued that the plaintiffs pursued the case unreasonably by not accepting the defendants' early $25,209 settlement offer, which included damages and attorneys' fees at that point, and instead drove up costs over the ensuing years.
Gaggero-Arenzano Interest, '97-'07, in a Class of Beneficiariesjamesmaredmond
The plaintiff's closing argument summarizes four trust documents that were disclosed pursuant to a court order. The documents establish trusts known as the Arenzano Trust and Terra Mar Trust. The plaintiff argues that the trusts were created by the defendant Steve Gaggero in an attempt to shield his assets from liability related to fraudulent conduct against the plaintiffs. Specifically, the plaintiff points to evidence that Gaggero controlled the entities in question and their assets despite being removed as a beneficiary of one trust just as he defrauded the plaintiffs. The plaintiff requests the court find Gaggero and the entities jointly and severally liable for fraud and the return of plaintiffs' money.
The court appoints a receiver to enforce a judgment against several judgment debtors. The receiver is given broad powers to investigate and take control of the debtors' assets and records. This includes investigating properties, business interests, bank accounts, transfers of assets, and employment of agents. The debtors are ordered to turn over financial documents and records to the receiver and are prohibited from interfering with the receiver or disposing of assets.
This order grants a motion for assignment of rights and restrains judgment debtors from certain financial activities. It assigns the judgment debtors' rights to payments (now and in the future) from various accounts, properties, lawsuits, trusts, individuals and entities to the judgment creditors until an outstanding judgment is paid in full. It also requires the judgment debtors to post an undertaking to stay enforcement of the order.
James Walters Kellogg & Andelson - declaration 8.4.93jamesmaredmond
This document is a declaration by James F. Walters, a certified public accountant, in opposition to an application for a writ of attachment in a court case between City National Bank and Stephen Blanchard. Walters declares that he has served as the accountant for Blanchard and his construction company. He attended a meeting between Blanchard and the chairman of CNB to discuss the bank reneging on commitments to provide financing for one of Blanchard's real estate development projects. Walters asserts that most of the funds referenced in CNB's complaint were used by Blanchard for personal expenses rather than business purposes.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
SMLLC v Geraldine Redmond US BK CT Transcript - Case No. NDO3-12487 - 4-20-05jamesmaredmond
The court denied a motion to amend a complaint objecting to the discharge of debt in a bankruptcy case. The original complaint alleged the debtor failed to disclose assets like a corral and horses in bankruptcy filings. The proposed amendment alleged rental property fraud. The court found the proposed amendment did not relate back to the original complaint under Rule 15(c), as the facts alleged were different. A two-day trial was scheduled for May 31st and June 1st to resolve the original complaint.
The document is a memorandum from the United States Court of Appeals for the Ninth Circuit regarding John and Maureen Redmond's appeal of a bankruptcy court's decision to issue terminating sanctions against them for failure to comply with a discovery order. The Ninth Circuit affirmed the bankruptcy court's ruling, finding that the Redmonds did not fully comply with the court's order to produce documents and answer questions at depositions. The bankruptcy court was within its discretion to issue the severe sanctions due to the Redmonds' history of obstructing discovery and repeatedly disobeying prior court orders.
A court case in which a landowner in Ohio sued to cancel a lease because the driller and the company that owns the lease have not paid any royalties since drilling. The Fifth Appellate District Court of Ohio found that because a specific provision in the original lease does not provide for cancellation due to non-payment of royalties, the landowners will have to continue to get screwed.
The Trustee filed a motion seeking court approval of a settlement agreement between the Trustee and Buckno Lisicky & Company, P.C. and Anthony Buczek. The Trustee had sued them for alleged accounting malpractice, aiding and abetting, breach of fiduciary duty, and civil conspiracy in connection with legal services. Under the settlement agreement, Buckno and Buczek will pay $550,000 to settle the controversies and receive a full release of claims from the Trustee. The Trustee believes the settlement is in the best interest of the estate as litigating the claims would be complicated, time-consuming, and expensive.
Doc577 complaint action against officers directors legal audit etcmalp2009
This complaint was filed by Matthew D. Orwig, the Chapter 11 Trustee for FirstPlus Financial Group, Inc., against various former officers and directors of FirstPlus, as well as outside attorneys, accountants, and business valuation experts. The complaint alleges claims including breach of fiduciary duty, professional negligence, and conspiracy related to these defendants' roles in the takeover of FirstPlus, misappropriation of its assets, and misleading public filings. The complaint seeks damages from eight categories of defendants.
Sample Bail Bond Related Criminal Law MotionsSamuel Partida
A list of common motions filed in a criminal case related to the bail bond are provided. Six sample motions are provided that a prosecutor may typically file. Seven sample motions are provided that a defense attorney may typically file over the span of a typical criminal case.
A fictitious legal brief to remit the final judgment of bail forfeiture. Capt. Bryant issued a bond for the release of Rutger Batty who later failed to appear in court. Mr. Batty was in a Texas jail because of a prior illegal gun possession charge. Though Mr. Batty was not incarcerated in a North Carolina jail or a federal prison within the United States, Captain Bryant wants Weft and Wright, P.L.L.C. to try and get the forfeited bail money remitted.
This document is a memorandum submitted by the defendant's counsel in a civil case regarding ejectment. The plaintiff filed a complaint to eject the defendant from an apartment the defendant had been leasing. The defendant argues that the plaintiff has no cause of action because the lease contract presented by the plaintiff is fictitious. Additionally, the defendant asserts that the plaintiff's action is barred by the one-year statute of limitations for unlawful detainer cases. Finally, the defendant claims the complaint should be dismissed for lack of a proper certification against forum shopping. The defendant requests that the court dismiss the plaintiff's complaint.
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
This document is an appellant's opening brief for a case in the California Court of Appeal regarding a trust. Robert Quick (the appellant) alleges that Andrea Pearson (the respondent), as trustee, breached the trust by concealing its existence from him and failing to provide him distributions as a beneficiary. The brief argues that Quick sufficiently alleged facts to state a cause of action and overcome defenses of statute of limitations and laches. It maintains the trial court erred in sustaining Pearson's demurrer without leave to amend.
Loughman v EQT - Decision Rejecting Landowner Request to Sever Production Lea...Marcellus Drilling News
A case in which a Greene County, PA landowner requested the court sever production rights under a lease from storage right. The landowners say EQT never produced oil/gas from the property, and lack of production cancels that portion of the lease. PA Superior Court said no, the two are together in the same lease and one OR the other is enough to keep the lease enforceable.
The plaintiffs, Stephen Gaggero and additional judgment debtors, appeal from a trial court order granting the defendants' motion for postjudgment enforcement costs and accrued interest. The trial court awarded the defendants over $87,000 in enforcement costs and over $569,000 in accrued interest, which was incorporated into a third amended judgment. The plaintiffs argue that many of the costs awarded were not reasonably related to enforcement of the judgment. However, the appellate court affirms the trial court's order, finding that the defendants incurred the costs and fees while reasonably attempting to enforce the underlying judgment against plaintiffs and their alter ego entities.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
1. Judgment Creditors KPC filed a motion to appoint a receiver to enforce a $2.1 million judgment against Judgment Debtor Stephen Gaggero and his alter ego entities.
2. Gaggero has avoided paying the judgment by transferring his assets to various entities, trusts, and a foundation through an asset protection plan, even though he retains control over the assets.
3. KPC argues that the court has authority to appoint a receiver under the Code of Civil Procedure to enforce the judgment and that a receiver is necessary because Gaggero and his counsel have obstructed and delayed KPC's collection efforts for years.
Employee class action v Google, Apple, Intel and othersDennis Howlett
Google, Apple, Intel and others are in the dock in a case where plaintiffs argue the operation of an illegal cartel designed to restrict pay to skilled workers.
B189989 gaggero/sulphur mountain v geraldine, somerset farms, john, maureen r...jamesmaredmond
This document summarizes a hearing in the Superior Court of Ventura County regarding Sulphur Mountain Land and Livestock Company's motion for attorneys' fees and the defendants' motion to tax costs. The defendants' attorney argued that the case should have been filed as a limited action in municipal court based on the amount in dispute. He also argued that the plaintiffs pursued the case unreasonably by not accepting the defendants' early $25,209 settlement offer, which included damages and attorneys' fees at that point, and instead drove up costs over the ensuing years.
Gaggero-Arenzano Interest, '97-'07, in a Class of Beneficiariesjamesmaredmond
The plaintiff's closing argument summarizes four trust documents that were disclosed pursuant to a court order. The documents establish trusts known as the Arenzano Trust and Terra Mar Trust. The plaintiff argues that the trusts were created by the defendant Steve Gaggero in an attempt to shield his assets from liability related to fraudulent conduct against the plaintiffs. Specifically, the plaintiff points to evidence that Gaggero controlled the entities in question and their assets despite being removed as a beneficiary of one trust just as he defrauded the plaintiffs. The plaintiff requests the court find Gaggero and the entities jointly and severally liable for fraud and the return of plaintiffs' money.
The court appoints a receiver to enforce a judgment against several judgment debtors. The receiver is given broad powers to investigate and take control of the debtors' assets and records. This includes investigating properties, business interests, bank accounts, transfers of assets, and employment of agents. The debtors are ordered to turn over financial documents and records to the receiver and are prohibited from interfering with the receiver or disposing of assets.
This order grants a motion for assignment of rights and restrains judgment debtors from certain financial activities. It assigns the judgment debtors' rights to payments (now and in the future) from various accounts, properties, lawsuits, trusts, individuals and entities to the judgment creditors until an outstanding judgment is paid in full. It also requires the judgment debtors to post an undertaking to stay enforcement of the order.
James Walters Kellogg & Andelson - declaration 8.4.93jamesmaredmond
This document is a declaration by James F. Walters, a certified public accountant, in opposition to an application for a writ of attachment in a court case between City National Bank and Stephen Blanchard. Walters declares that he has served as the accountant for Blanchard and his construction company. He attended a meeting between Blanchard and the chairman of CNB to discuss the bank reneging on commitments to provide financing for one of Blanchard's real estate development projects. Walters asserts that most of the funds referenced in CNB's complaint were used by Blanchard for personal expenses rather than business purposes.
FLSA Litigation - Federal Court - MDFL Tampa - Fee Entitlement & MootnessPollard PLLC
Lawyers in FLSA cases and particularly on the defense side should view this as a cautionary tale: Tendering a check for the wages at issue does not moot the plaintiff's claim. FLSA claims are live until there is a judgment or a settlement approved by the court. And plaintiffs DO get their fees for litigating over the issue of attorneys' fees.
Simply put: A legitimate FLSA case, a skilled attorney on the plaintiff side, and defense counsel who do not understand the applicable legal framework make for disastrous results.
SMLLC v Geraldine Redmond US BK CT Transcript - Case No. NDO3-12487 - 4-20-05jamesmaredmond
The court denied a motion to amend a complaint objecting to the discharge of debt in a bankruptcy case. The original complaint alleged the debtor failed to disclose assets like a corral and horses in bankruptcy filings. The proposed amendment alleged rental property fraud. The court found the proposed amendment did not relate back to the original complaint under Rule 15(c), as the facts alleged were different. A two-day trial was scheduled for May 31st and June 1st to resolve the original complaint.
The document is a memorandum from the United States Court of Appeals for the Ninth Circuit regarding John and Maureen Redmond's appeal of a bankruptcy court's decision to issue terminating sanctions against them for failure to comply with a discovery order. The Ninth Circuit affirmed the bankruptcy court's ruling, finding that the Redmonds did not fully comply with the court's order to produce documents and answer questions at depositions. The bankruptcy court was within its discretion to issue the severe sanctions due to the Redmonds' history of obstructing discovery and repeatedly disobeying prior court orders.
A court case in which a landowner in Ohio sued to cancel a lease because the driller and the company that owns the lease have not paid any royalties since drilling. The Fifth Appellate District Court of Ohio found that because a specific provision in the original lease does not provide for cancellation due to non-payment of royalties, the landowners will have to continue to get screwed.
The Trustee filed a motion seeking court approval of a settlement agreement between the Trustee and Buckno Lisicky & Company, P.C. and Anthony Buczek. The Trustee had sued them for alleged accounting malpractice, aiding and abetting, breach of fiduciary duty, and civil conspiracy in connection with legal services. Under the settlement agreement, Buckno and Buczek will pay $550,000 to settle the controversies and receive a full release of claims from the Trustee. The Trustee believes the settlement is in the best interest of the estate as litigating the claims would be complicated, time-consuming, and expensive.
Doc577 complaint action against officers directors legal audit etcmalp2009
This complaint was filed by Matthew D. Orwig, the Chapter 11 Trustee for FirstPlus Financial Group, Inc., against various former officers and directors of FirstPlus, as well as outside attorneys, accountants, and business valuation experts. The complaint alleges claims including breach of fiduciary duty, professional negligence, and conspiracy related to these defendants' roles in the takeover of FirstPlus, misappropriation of its assets, and misleading public filings. The complaint seeks damages from eight categories of defendants.
Sample Bail Bond Related Criminal Law MotionsSamuel Partida
A list of common motions filed in a criminal case related to the bail bond are provided. Six sample motions are provided that a prosecutor may typically file. Seven sample motions are provided that a defense attorney may typically file over the span of a typical criminal case.
A fictitious legal brief to remit the final judgment of bail forfeiture. Capt. Bryant issued a bond for the release of Rutger Batty who later failed to appear in court. Mr. Batty was in a Texas jail because of a prior illegal gun possession charge. Though Mr. Batty was not incarcerated in a North Carolina jail or a federal prison within the United States, Captain Bryant wants Weft and Wright, P.L.L.C. to try and get the forfeited bail money remitted.
This document is a memorandum submitted by the defendant's counsel in a civil case regarding ejectment. The plaintiff filed a complaint to eject the defendant from an apartment the defendant had been leasing. The defendant argues that the plaintiff has no cause of action because the lease contract presented by the plaintiff is fictitious. Additionally, the defendant asserts that the plaintiff's action is barred by the one-year statute of limitations for unlawful detainer cases. Finally, the defendant claims the complaint should be dismissed for lack of a proper certification against forum shopping. The defendant requests that the court dismiss the plaintiff's complaint.
Angela Kaaihue, Motion in Opposition to NECA's Summary Judgement- Hearing Jul...Angela Kaaihue
This document is a memorandum filed by Angela Kaaihue and Yong Fryer in opposition to a motion for summary judgment filed by Newtown Estates Community Association (NECA). It argues that NECA's motion should be denied for several reasons: (1) Petitioners' property is not part of Newtown Estates and is therefore not subject to NECA's rules; (2) there are errors in the property's title and warranty deed regarding its inclusion in Newtown Estates; and (3) Petitioners have developer rights over the property according to the master declaration. The memorandum also notes that the land court has jurisdiction over NECA's claims, as determined in a previous hearing.
The decision by the U.S. District Court for the Southern District of Ohio. EQT had leased land from Alex Cooper, et al with an initial five-year term. The lease provided for a five-year extension. It also required EQT to drill at least one well on/under the property during the first five-year lease. EQT failed to drill a well in the first term but instead elected to extend the lease for an additional five years. The federal judge found that EQT has the right to extend the lease even if they didn't drill a well during the first term.
This document is an appellant's opening brief for a case in the California Court of Appeal regarding a trust. Robert Quick (the appellant) alleges that Andrea Pearson (the respondent), as trustee, breached the trust by concealing its existence from him and failing to provide him distributions as a beneficiary. The brief argues that Quick sufficiently alleged facts to state a cause of action and overcome defenses of statute of limitations and laches. It maintains the trial court erred in sustaining Pearson's demurrer without leave to amend.
Loughman v EQT - Decision Rejecting Landowner Request to Sever Production Lea...Marcellus Drilling News
A case in which a Greene County, PA landowner requested the court sever production rights under a lease from storage right. The landowners say EQT never produced oil/gas from the property, and lack of production cancels that portion of the lease. PA Superior Court said no, the two are together in the same lease and one OR the other is enough to keep the lease enforceable.
The plaintiffs, Stephen Gaggero and additional judgment debtors, appeal from a trial court order granting the defendants' motion for postjudgment enforcement costs and accrued interest. The trial court awarded the defendants over $87,000 in enforcement costs and over $569,000 in accrued interest, which was incorporated into a third amended judgment. The plaintiffs argue that many of the costs awarded were not reasonably related to enforcement of the judgment. However, the appellate court affirms the trial court's order, finding that the defendants incurred the costs and fees while reasonably attempting to enforce the underlying judgment against plaintiffs and their alter ego entities.
Doc1037 robert oneil paul ballard_todd hickman_seeking approval_settlement & ...malp2009
This document is a Trustee's Motion to Approve Compromise and Settlement with Defendants Robert O'Neal, Paul Ballard and Todd Hickman in an Adversary proceeding. The Trustee is seeking the court's approval of a settlement agreement between the Trustee and the Defendants that would allow portions of the Defendants' claims against the Debtor's estate and resolve all claims between the parties. Key terms of the settlement include allowing 75% of O'Neal's claim, 60% of Ballard's claim, and 60% of Hickman's claim. The Trustee believes the settlement is in the best interest of the estate to avoid costly and uncertain litigation.
1. Judgment Creditors KPC filed a motion to appoint a receiver to enforce a $2.1 million judgment against Judgment Debtor Stephen Gaggero and his alter ego entities.
2. Gaggero has avoided paying the judgment by transferring his assets to various entities, trusts, and a foundation through an asset protection plan, even though he retains control over the assets.
3. KPC argues that the court has authority to appoint a receiver under the Code of Civil Procedure to enforce the judgment and that a receiver is necessary because Gaggero and his counsel have obstructed and delayed KPC's collection efforts for years.
Employee class action v Google, Apple, Intel and othersDennis Howlett
Google, Apple, Intel and others are in the dock in a case where plaintiffs argue the operation of an illegal cartel designed to restrict pay to skilled workers.
This summarizes a document reviewing environmental law cases from 2009-2010. It discusses three cases:
1) Fresh Meadow Food Serv., LLC v. RB 175Corp. upheld a RICO claim against a defendant who concealed underground storage tanks and contaminated soil when selling a property.
2) Wickens v. Shell Oil Co. addressed recoverable attorney fees under Indiana's Underground Storage Tank Act.
3) Evansville Greenway & Remediation Trust v. S. Ind. Gas & Elec. Co. concerned the common interest privilege and apportionment of liability under CERCLA. The court applied the privilege to communications between parties working to remediate contaminated sites. It also found CERCLA
This document is a reply brief filed by defendants in a class action securities litigation case. It summarizes and responds to arguments made in the lead plaintiffs' opposition to the defendants' motion to dismiss. The defendants argue that the court can consider SEC filings, press releases, and transcripts referenced in their motion. They also contend that the lead plaintiffs have misstated facts and failed to provide the full context of disclosures made during the class period. The defendants assert that statements were not misleading and that the plaintiffs have not sufficiently pleaded scienter. Overall, the brief aims to persuade the court to dismiss the complaint with prejudice based on deficiencies in the plaintiffs' arguments and pleading.
US Court of Appeals for the Third Circuit - Pollock v Energy Corporation of A...Marcellus Drilling News
On Monday, October 24, 2016, the Third Circuit Court of Appeals found that ECA did not meet its burden of proving its need for a new trial in the case involving a $1.1 million judgment to landowners. The landowners sued ECA in federal court in 2010, alleging they did not receive their proper amount of royalties under their leases because allegedly improper post-production costs were deducted. The District Court jury awarded $1.1 million in damages. ECA appealed the verdict to the Third Circuit.
Motion to Dismiss 12 B 5 FILING Stamped-1 July 2021.pdfFrankEkejija1
Frank Ekejija and NVC Fund evidence supporting the Court filings exposed and debunked the SEC's wrongful actions and false assumptions. The facts are clear and on record.
Doc1031 pay day for lynn tillotson pinker & cox $189,945.99malp2009
This document is a fourth application filed by Lynn Tillotson Pinker & Cox, LLP ("LTPC") seeking approval of attorney's fees and reimbursement of expenses from the bankruptcy estate of FirstPlus Financial Group, Inc. LTPC requests approval of $183,333.33 in attorney's fees based on its one-third contingency fee from a $550,000 settlement with Buckno Lisicky & Company, P.C. and Anthony Buczek. LTPC also requests $6,542.66 in expense reimbursements. In total, LTPC requests approval of $189,875.99 for fees and expenses incurred from May 2014 to May 2015.
This document is a petition for review filed with the Supreme Court of California seeking review of two appellate court decisions related to a legal malpractice case. The petitioners (the plaintiff and additional judgment debtors from the underlying case) are asking the Supreme Court to grant review of the present matter and hold it pending the outcome of a related case also pending before the Supreme Court. If the petitioners prevail in the related case, they would be entitled to reversal of the orders in the present matter. Granting review and holding the present matter would prevent those orders from becoming final while the related case is still pending.
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Similar to B178942 sulphur v knapp petersen clarke (20)
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B178942 sulphur v knapp petersen clarke
1. SERVICE LIST
CASE NO. Bl78942
(Ventura Superior Court Case No. QV214486)
PROO1-’ Ob' SERVICE
David B. Chatfield, Esq.
Westlake Law Group
2625 Townsgate Road, Ste 330
Westlake Village, CA 91361
(805) 267-1220
(805) 267-1211 - Fax
Ventura County Superior Court
Ventura Hall ofJustice
800 South Victoria Avenue
Ventura, California, 93009
(805) 654-2965
Peter J. Bezek, Esq.
Foley & Bezek, LLP
15 West Carrillo Street
Santa Barbara, CA 93101
(805) 962-9495
(805) 962-0722-Fax
James D. Gustafson, Esq.
Law Offices ofJames D. Gustafson
2625 Townsgate Road, Ste 330
Westlake Village, CA 91361
(805) 267-1220
(805) 267-1211 - Fax
James D. Gustafson, Esq.
Law Offices ofJames D. Gustafson
2160 Waterside Circle
Westlake Village, CA 91362
(805) 241-4217
(805) 241-3445 - Fax
Attorneys for Plaintiffs and
Respondents
Sulphur Mountain Land and
Livestock Co., Malibu
Broadbeach L.P., and Pacific
Coast Management
Attorneys for Plaintiffs and
Respondents
Sulphur Mountain Land and
Livestock Co., Malibu
Broadbeach L.P., and Pacific
Coast Management
Attorneys for Plaintiffs and
Respondents
Sulphur Mountain Land and
Livestock Co., Malibu
Broadbeach L.P., and Pacific
Coast Management
SULPHUR MOUNTAIN, ET AL. V. KNAPP, PETERSEN & CLARKE,
ET AL.
2. PROOF Ob' SERVICE
Supreme Court ofCalifornia
350 McAllister Street
San Francisco, CA 94102-4783
Office ofthe Clerk: (415) 865-7000
3. TABLE OF CONTENTS
PAGE
1
STATEMENT OF THE CASE
1
1. NATURE OF ACTION AND RELIEF SOUGHT
3
2. SUMMARY OF MATERIAL FACTS
5
6
ARGUMENT.
1.-
6
A.
6
B.
9
C.
12
2.
20
3.
i
THE COURT ERRED IN AWARDING PLAINTIFFS ALL
ATTORNEY’S FEES INCURRED AFTER FEBRUARY 11, 2004
The Court Abused Its Discretion By Failing To Exercise Its Discretion
Under Civil Code §1717 To Determine Which Party Prevailed On The
Contract Claims.....................................................................................
THE COURT ERRED IN AWARDING SULPHUR AND MALIBU
ATTORNEY’S FEES INCURRED ON BEHALF OF PLAINTIFF
PACIFIC COAST MANAGEMENT..................................................
Even IfThe Trial Court Did Exercise Its Discretion Under Civil Code
§1717, It Abused That Discretion In Determining That Plaintiffs Were
The Prevailing Parties...........................................................................
THE COURT ERRED IN AWARDING PLAINTIFFS THEIR EXPERT
WITNESS FEES.....................................................................................22
The Court Erred In Ruling That KPC Is Not The Prevailing Party For
Purposes OfRecovering Its Attorney’s Fees Incurred After February
11,2004..............................................................................................
i. The Court Erred In Ruling That Defendants’ C.C.P. §998 Offers Were
Invalid Because They Called For A Confidentiality Provision...............13
3. RULING OF SUPERIOR COURT AND STATEMENT OF
APPEALABILITY ....................
ii. The Court Erred To The Extent It Based Its Ruling On A BeliefThat
The General Release And Settlement Provision In Defendants’ C.C.P.
§998 Offers Renders Them Invalid......................................................... 18
4. TABLE OF CONTENTS
PAGE
4.
23
5. CONCLUSION. .23
BRIEF FORMAT CERTIFICATE PURSUANT TO C.R.C. 14(C) 24
ii
THE COURT ERRED IN AWARDING PLAINTIFFS THEIR COSTS
FOR MODELS, BLOWUPS AND PHOTOCOPIES OF
EXHIBITS
5. TABLE OF AUTHORITIES
Page
8, 13,14
22
6
13, 17
21
7
18,19
10
8, 9, 10
10
iii
153585 (TOC/TOA Io 153577)
In Re McGaw Property Management, Inc. (Bkrtcy. C.D. Cal. 1991)
133 B.R. 227
Cases
American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002)
96 Cal.App.4th 1017 14,15
Barella v. Exchange Bank (2000)
84 Cal. App. 4th 793
Carver v. Chevron U.S.A., Inc. (2002)
97 Cal.App.4th 132
Citizens Against Rent Control v. City ofBerkeley (1986)
181 Cal. App. 3d 213 .....................................
Elite Show Services, Inc. v. Staffpro, Inc. (2004)
119 Cal. App. 4th 263
Fennessy v. Deleuw-Cather Corp. (1990)
218 Cal.App.3d 1192
Fletcher v. Superior Court (2002)
100 Cal.App.4th 386
Goodstein v. Bank ofSan Pedro (1994)
27 Cal.App.4th 899
Heather Farms Homeowners HOA v. Robinson (1994)
21 Cal.App.4th 1568
Hsu v. Abbara (1995)
9 Cal.4th 863
6. TABLE OF AUTHORITIES
7
20
7
20
16
17
20
Statutes
22
iv
X
153585 (TOC/TOA to 153577)
Civil Code §1033.5(a)(12)
Civil Code § 1033.5(b)(1)..
Civil Code §1717
Civil Code § 1717(a)
Civil Code § 1717(b)(1)...
C.C.P. §998
McLarand, Vasquez & Partners, Inc. v.
Downey Savings & Loan Assn. (1991)
231 CaI.App.3d 1450
PLCM Group v. Drexler (2000)
22 Cal.4th 1084
Richards, Watson & Gershon v. 7Cmg(1995)
39 Cal.App.4th 1176
Scott Co. ofCalifornia v. Blount, Inc. (1999)
20 Cal.4th 1103 8,9,10,12,19
Sessions Payroll Management, Inc. v. Noble Construction Co. (2000)
84 Cal.App.4th 671
Valentino v. Elliott Sav-On Gas, Inc. (1988)
201 CaI.App.3d 692
Vick v. DaCorsi (2003)
110 Cal.App.4th 206
Whiteside v. Tenet Healthcare Corp. (2002)
101 Cal. App. 4th 693
passim
,...8, 20
.....7, 8
passim
7. TABLE OF AUTHORITIES
Page
16
17
C.C.P. §998(c)(l) 12,19
California Rules of Court
225 17
Other Authorities
15,16
v
153585 (TOC/TOA to 153577)
C.C.P. §998(b)....
C.C.P. §998(b)(l)
Rutter, Cal. Practice Guide: Civ. Pro. Before Trial CH. 12(II)-C,
C. Statutory Offer To Compromise (CCP § 998) §12:662,
p. 12(II)-34 (2004)
8. Case No. B178942
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
vs.
APPELLANTS’ OPENING BRIEF
Appeal from the Superior Court ofCalifornia, County ofVentura
Ventura Superior Court Case No. Civ 214486
Honorable Henry J. Walsh, Dept. 34
KNAPP, PETERSEN AND CLARKE; STEVEN RAY GARCIA;
STEPHEN M. HARRIS; and ANDRE JARDINI,
Defendants and Appellants.
SULPHUR MOUNTAIN LAND AND LIVESTOCK CO., a California
Limited Liability Company; MALIBU BROADBEACH L.P., a California
Limited Partnership; and PACIFIC COAST MANAGEMENT,
a corporation,
Plaintiffs and Respondents,
9. STATEMENT OF THE CASE
I
153577
Sulphur and Malibu obtainedjudgments against Defendants,
including KPC, for $3000 and $100 respectively when Defendants
accepted their C.C.P. §998 offers to compromise in those sums.
Sulphur and Malibu then filed a motion for attorney’s fees and a
Memorandum of Costs on the ground that they were the prevailing
parties. KPC also filed a motion for attorneys fees and Memorandum of
Costs on the grounds that: 1) Plaintiffs are not the prevailing parties as
they obtained minimal reliefon the contract claims compared to their
demands and litigation objectives; and 2) KPC is the prevailing party
for purposes of recovering its attorney’s fees and costs incurred after
February 11, 2004, the date ofDefendants’ C.C.P. §998 offers, as
Plaintiffs each recovered less than Defendants’ C.C.P. §998 offers.
1. NATURE OF ACTION AND RELIEF SOUGHT
In this legal malpractice action, plaintiffs Sulphur Mountain
Land and Livestock Co. (“Sulphur”), Malibu Broadbeach L.P.
(“Malibu”) and Pacific Coast Management (“PCM”) asserted causes of
action for professional negligence, breach ofcontract, breach ofthe
covenant ofgood faith and fair dealing, breach offiduciary duty and
constructive fraud against defendants Knapp, Petersen & Clarke
(“KPC”), Steven Ray Garcia, Stephen M. Harris and Andre Jardini
(collectively “Defendants”).
This appeal is from the following post-judgment orders: 1)
the order granting Sulphur and Malibu’s (collectively “Plaintiffs”)
motion for attorney’s fees; 2) the order denying defendant KPC’s
motion for attorney’s fees; 3) the order denying Defendants’ motion to
tax Plaintiffs’ costs; and 4) the order granting Plaintiffs’ motion to tax
KPC’s costs.
10. Defendants also filed a motion to tax Plaintiffs’ costs on the
2
153577
grounds that: 1) KPC, not Plaintiffs, is the prevailing party; 2) there is
no authority pursuant to which Sulphur or Malibu could recover their
expert witness fees; and 3) there is no authority pursuant to which
Sulphur or Malibu could recover their costs for models, blowups or
photocopies ofexhibits as this case did not go to trial. Plaintiffs also
filed a motion to tax Defendants’ costs on the grounds that Sulphur and
Malibu are the prevailing parties.
Although Sulphur and Malibu sought $299,781.96 in fees, the
trial court concluded that the fees they reasonably incurred were
$111,515. The court also awarded Sulphur and Malibu all ofthe costs
that they sought in their Memorandum ofCosts. The court denied
KPC’s motion for attorney’s fees and Defendants’ motion to tax
Plaintiffs’ costs. The court’s basis for granting Plaintiffs’ motions and
denying Defendants’ motions was that Sulphur and Malibu are the
prevailing parties, and therefore entitled to their costs, including
reasonable attorney’s fees, because Defendants’ C.C.P. §998 offers to
them were invalid as they contained a confidentiality provision.
This was error. Preliminarily, the trial court abused its
discretion by failing to exercise its discretion pursuant to Civil Code
§1717 to determine the prevailing party. The trial court skipped this
threshold analysis under Civil Code §1717 and, instead, improperly
based its prevailing party determination on factors used to determine
whether to shift costs pursuant to C.C.P. §998 to a party who has
already been determined to be a “prevailing party” under Civil Code
§1717. Further, even ifthe trial court did exercise its discretion under
Civil Code §1717, it abused that discretion in determining Sulphur and
Malibu were the prevailing parties as the underlying facts reveal that
KPC was clearly the prevailing party.
11. 3
153577
The trial court also erred in determining that Defendants’
C.C.P. §998 offers were invalid because they contained a confidentiality
provision. A confidentiality provision has been held to render a C.C.P.
§998 offer invalid for cost-shifting purposes only in the narrow
circumstance ofa defamation action where a “secret” settlement is
contemplated. As this is a legal malpractice action that does not involve
a “secret” settlement, the routine confidentiality provision at issue does
not render Defendants’ C.C.P. §998 offers invalid. Thus, KPC, rather
than Plaintiffs, is the prevailing party for purposes ofrecovering its
post-offer costs.
Moreover, even if Sulphur and Malibu were prevailing parties, the
trial court erred in awarding them fees incurred on behalfofa non-prevailing
party, PCM. Additionally, even ifPlaintiffs were the prevailing parties, there
is no authority to support the trial court’s award ofcosts for their expert
witness fees or models, blowups or photocopies ofexhibits. Therefore, this
court should reverse the trial court’s orders denying Defendants’ motion for
attorney’s fees and motion to tax costs and granting Plaintiffs’ motion for
attorney’s fees and motion to tax costs.
2. SUMMARY OF MATERIAL FACTS
On February 11,2004, Defendants made statutory offers to
compromise to Sulphur and Malibu pursuant to C.C.P. §998 for $18,500
and $7500, respectively. (AA 231-237.) These offers contained a
confidentiality provision and also called for a general release of
Defendants. (AA 231-232,235-236.) Sulphur and Malibu did not accept
these offers. (AA215.)
On May 21, 2004, Sulphur and Malibu made statutory offers to
compromise to Defendants for $3000 and $100 respectively. (AA 21, 24.)
As these offers were for sums considerably less than Defendants had
previously offered to settle this action, Defendants accepted Sulphur and
12. 4
153577
Malibu’s offers. (AA 20-25.) Sulphur and Malibu subsequently obtained
judgments against Defendants for $3000 and $100 respectively - the
amount of Sulphur and Malibu’s offers to compromise. (AA 33, 506-509.)
Plaintiffs then filed a Memorandum ofCosts to recover costs
they incurred throughout the entire action, including costs incurred after
Defendants’ February 11, 2004 C.C.P. §998 offers, expert witness fees and
costs for models, blowups and photocopies ofexhibits. (AA 34-38.)
Sulphur and Malibu also filed a motion for attorney’s fees on the basis that
they were the prevailing parties because they obtained a net monetary
recovery and were therefore entitled to attorney’s fees pursuant to Civil
Code §1717 and the contract between plaintiffs and defendant KPC. (AA
39-194.)
KPC filed a motion for attorneys fees and Memorandum ofCosts
on the grounds that: 1) Plaintiffs are not the prevailing parties as they
obtained minimal reliefon the contract claims compared to their demands
and litigation objectives; and 2) KPC is the prevailing party for purposes of
recovering its attorney’s fees and costs incurred after February 11, 2004,
the date ofDefendants’ C.C.P. §998 offers, as Plaintiffs each recovered less
than Defendants’ C.C.P. §998 offers. 1 (AA 34-38,401-478.)
Plaintiffs filed a motion to tax ail ofKPC’s claimed costs on the
grounds that Sulphur and Malibu are the prevailing parties. (AA 479-505.)
Similarly, Defendants filed a motion to tax costs on the grounds that: 1)
KPC is the prevailing party for purposes ofrecovering its post-offer costs;
and 2) there is no authority pursuant to which Plaintiffs could recover costs
for expert witnesses or costs for models, blowups and photocopies of
exhibits. (AA 379-400.)
As KPC was the only defendant who was a party to the Legal
Services Agreement in the underlying action, only KPC is the prevailing
party on the contract entitled to recover its fees and costs. (AA 15-18.)
13. APPEALABILITY
5
153577
The Superior Court ofCalifornia, County ofVentura, by the
Honorable Henry J. Walsh, denied Defendant KJPC’s motion to determine
prevailing party and to fix amount of attorney’s fees as costs in its entirety
and denied Defendants’ motion to tax Plaintiffs’ costs in its entirety. (AA
750-754.) The order denying these motions was entered on September 2,
2004. (AA 750-754.)
The Superior Court of California, County ofVentura, by the
Honorable Henry J. Walsh, granted Plaintiffs’ motion to tax costs in its
The trial court heard Plaintiffs’ motion for attorney’s fees and
motion to tax costs and Defendants’ motion for attorney’s fees and
motion to tax costs on August 31, 2004. (RT 1.) On September 2,
2004, the court issued its written order granting Plaintiffs’ motion to tax
costs and denying Defendants’ motion for attorney’s fees and motion to
tax costs. (AA 750-754.) On September 28, 2004, the court issued its
written order granting Plaintiffs’ motion for attorney’s fees and
awarding Sulphur and Malibu $111,515 ofthe $299,781.96 in fees they
sought. (AA 755-756.)
The court based it rulings on the ground that plaintiffs were
the prevailing parties entitled to their costs, including reasonable
attorney’s fees, because Defendants’ C.C.P. §998 offers were invalid as
they contained a confidentiality provision. (AA 750-756.) The court’s
September 2,2004 order also stated that Defendants’ offers were
“subject to criticism” for requiring a “release and settlement agreement,
the full terms ofwhich are not stated, but which is stated to extend to
persons not specifically named as parties to the litigation.” (AA 753.)
On October 29,2004, Defendants timely filed their Notice ofAppeal as
to each ofthe court’s four rulings. (AA 757-761.)
3. RULING OF SUPERIOR COURT AND STATEMENT OF
14. ARGUMENT
1. THE COURT ERRED IN AWARDING PLAINTIFFS ALL
6
153577
entirety and did not award KPC any ofthe costs it sought in its
Memorandum ofCosts. (AA 750-754.) The order granting the motion was
entered on September 2, 2004. (AA 750-754.)
The Superior Court of California, County ofVentura, by the
Honorable Henry J. Walsh, granted Sulphur and Malibu’s motion for
attorney’s fees and awarded Sulphur and Malibu attorney’s fees in the
amount of $111,515. (AA 755-756.) The order granting the motion was
entered on September 28, 2004. (AA 755-756.)
Notice ofAppeal from each ofthe above orders was timely filed
and served on October 29,2004. (AA 757-761.) A post-judgment order
awarding or denying attorney’s fees or costs is appealable. Citizens Against
Rent Control v. City ofBerkeley (1986) 181 Cal. App. 3d 213, 223.
ATTORNEY’S FEES INCURRED AFTER FEBRUARY 11,2004
A. The Court Abused Its Discretion By Failing To Exercise Its
Discretion Under Civil Code §1717 To Determine Which Party
Prevailed On The Contract Claims
The Legal Services Agreement between Plaintiffs and KPC in the
underlying action provides that “the prevailing party in any action or
arbitration to enforce the terms ofthis agreement shall be entitled to recover
reasonable attorneys fees and all costs in any such action.” (AA 18.) Civil
Code §1717 confers discretion upon the trial court to determine which, if
any, ofthe parties is the “prevailing party” on the contract thereby entitling
that party to recover its costs, including attorney’s fees, incurred in the
action. “The court, upon notice and motion by a party, shall determine who
is the party prevailing on the contract for purposes ofthis section... The
15. 7
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compelled by law constitutes a denial ofa fair hearing
and a deprivation offundamental procedural rights,
and thus requires reversal. [Citations.]’
Fletcher v. Superior Court (2002) 100 CaI.App.4th 386, 392 (citations
omitted.) Thus, a “trial court’s failure to exercise its discretion [is] itselfan
abuse ofdiscretion.” Richards, Watson & Gershon v. King (1995) 39
Cal.App.4th 1176, 1180.
In the present action, the trial court abused its discretion because
it failed to exercise its discretion under Civil Code §1717 in determining
which parties prevailed. Instead, it improperly applied the cost-shifting
analysis ofC.C.P. §998 to make its prevailing party determination. The
court appears to have confused the “prevailing party” analysis under Civil
Code §1717 and the analysis employed under C.C.P. §998 to determine
whether a plaintiffwho did not accept a defendant’s C.C.P. §998 offer
obtained ajudgment more favorable than the defendant’s offer thereby
avoiding the cost-shifting provisions ofC.C.P. §998.
In determining the attorney’s fees and costs, ifany, to which a
party is entitled pursuant to a contract, the first analysis in which the trial
court may also determine that there is no party prevailing on the contract
for purposes ofthis section.” Civil Code § 1717(b)(1).
A trial court’s determination as to whether a party prevailed on
the contract claims pursuant to Civil Code §1717 is reviewed for an abuse
ofdiscretion. McLarand, Vasquez & Partners, Inc. v. Downey Savings &
Loan Assn. (1991) 231 Cal.App.3d 1450,1456. Further,
‘[a] ruling otherwise within the trial court's power will
nonetheless be set aside where it appears from the
record that in issuing the ruling the court failed to
exercise the discretion vested in it by law. [Citations.]’
‘Failure to exercise a discretion conferred and
16. 8
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court must engage is to determine which parties, ifany, are the “prevailing
parties” under Civil Code § 1717(b)(1) by “compar[ing] the reliefawarded
on the contract claim or claims with the parties’ demands on those same
claims and their litigation objectives as disclosed by the pleadings, trial
briefs, opening statements, and similar sources.” Hsu v. Abbara (1995) 9
Cal.4th 863, 876; also see Scott Co. ofCalifornia v. Blount, Inc. (1999) 20
Cal.4lh 1103, 1109. After the court determines which party, ifany, is the
prevailing party, that party shall then be entitled to costs, including
attorney’s fees. Civil Code §1717(a).
Where a prevailing party failed to accept a C.C.P. §998 offer to
compromise, the second analysis in which the trial court must engage to
determine the amount ofcosts to which the prevailing party is entitled is to
establish whether the cost-shifting provisions ofC.C.P. §998 apply by
determining whether the prevailing party obtained ajudgment more
favorable than the C.C.P. §998 offer. C.C.P. §998 (c)(1); see generally
Scott Co. ofCalifornia v. Blount, Inc, supra, at 1109-1110, 1112-1113.
Part ofthis analysis is evaluating whether the C.C.P. §998 offer at issue is
valid. Barella v. Exchange Bank (2000) 84 Cal. App. 4lh 793, 801.
In the present case, the trial court’s September 2, 2004 and
September 28, 2004 orders on the parties’ motions for attorney’s fees are
based upon the court’s determination that Sulphur and Malibu are the
prevailing parties because Defendants’ C.C.P. §998 offers to compromise
to Sulphur and Malibu were defective as they contained a provision that
called for confidentiality ofthe terms ofthe contemplated settlement
agreement. (AA 750-756.) The court reasoned that such a confidentiality
provision was not capable ofvaluation so as to enable Plaintiffs (or the
court) to determine the dollar value ofDefendants’ C.C.P. §998 offers and,
thus, whether Plaintiffs obtainedjudgments more favorable than
Defendants’ offers. (AA 752-753.) Significantly, the trial court did not
17. 9
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address Civil Code §1717 either in its September 2,2004 order, September
28, 2004 order or at the hearing on Plaintiffs’ motion for attorney’s fees.
(AA 750-756; RT 1-18.) In fact, when Defendants’ counsel attempted to
raise the issue ofthe threshold Civil Code §1717 analysis at the August 31,
2004 consolidated hearing, the court specifically refused to hear any such
argument regarding the prevailing party analysis. (RT 17:23-27.)
The court’s September 2, 2004 and September 28, 2004 rulings
were an abuse ofdiscretion as the court failed to exercise its discretion and
to perform the threshold analysis ofdetermining which party is the
prevailing party pursuant to Civil Code §1717, i.e., by “[comparing] the
extent to which each party ha[s] succeeded and failed to succeed in its
contentions.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876 (citations omitted.)
Instead, the trial court improperly based its prevailing party determination
on factors used to determine whether to shift costs pursuant to C.C.P. §998
to a party who has already been determined to be a “prevailing party” under
Civil Code §1717, e.g., whether Defendants’ C.C.P. §998 offers were valid
and, ultimately, whether Plaintiffs recovered an amount greater than
Defendants’ offers. (AA 750-756.) Such factors are irrelevant to the
threshold prevailing party analysis ofCivil Code §1717. The trial court
should only have analyzed whether Sulphur and Malibu obtained
judgments greater than Defendants’ C.C.P. §998 offers after, and if, it
determined that Sulphur and Malibu were the prevailing parties under Civil
Code §1717. See, e.g., Hsu, supra, at 876; also see Scott Co. ofCalifornia,
supra, at 1109.
B. Even IfThe Trial Court Did Exercise Its Discretion Under Civil
Code §1717, It Abused That Discretion In Determining That
Plaintiffs Were The Prevailing Parties
Even if this Court finds that the trial court did exercise its
discretion under Civil Code § 1717, the trial court abused its discretion in
18. 10
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determining that Plaintiffs were the prevailing parties on the contract claims
as the facts ofthis case reveal that KPC was the prevailing party. The
California Supreme Court has made it clear that simply obtaining a net
monetary recovery does not necessarily establish a party as the “prevailing
party.” Rather, it held in Hsu v. Abbara (1995) 9 Cal.4th 863 that:
... in deciding whether there is a "party prevailing on
the contract," the trial court is to compare the relief
awarded on the contract claim or claims with the
parties' demands on those same claims and their
litigation objectives as disclosed by the pleadings, trial
briefs, opening statements, and similar sources. The
prevailing party determination is to be made only upon
final resolution ofthe contract claims and only by "a
comparison ofthe extent to which each party ha[s]
succeeded and failed to succeed in its contentions."
Id. at 876 (citation omitted.) See also Scott Co. ofCalifornia v. Blount, Inc.
(1999) 20 Cal.4th 1103, 1109; Heather Farms Homeowners HOA v.
Robinson (1994) 21 Cal.App.4,h 1568, 1574 (the court must engage in a
‘“pragmatic inquiry’ into whether a party is the ‘prevailing party’ on a
‘practical level’”); In Re McGaw Property Management, Inc. (Bkrtcy. C.D.
Cal. 1991) 133 B.R. 227,231 (debtor was prevailing party entitled to
attorney fees under Civil Code §1717 where creditor recovered only
$2,061.90 ofthe $25,000 it sought.)
In the present action, Sulphur and Malibu’s ultimate recoveries
of$3000 and $100 respectively were clearly de minimis and essentially
complete capitulations in light oftheir previous demands and litigation
objectives. For example, at the February 5, 2004 Mandatory Settlement
Conference (“MSC”) in this action, Sulphur and Malibu alleged damages of
approximately $135,000 against Defendants. (AA 227, 252.) At the MSC,
19. 11
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they also unreasonably demanded that Defendants actually stipulate that
any settlement would be admissible in evidence at the trial oftwo unrelated
actions that Sulphur and Malibu’s principal, Stephen Gaggero, filed in the
Los Angeles Superior Court against KPC. (AA 227.) This stipulation was
so important to them that they flatly refused to settle the case without it.
(AA 227.) Not surprisingly, the MSC judge abruptly terminated the MSC
given what he viewed as the unreasonableness ofthis condition. (AA 227.)
Sulphur and Malibu’s litigation objectives were also confirmed by their
failure to accept the C.C.P. §998 offers to compromise for $18,500 and
$7500, respectively which were made by Defendants, after the MSC, on
February 11,2004. (AA 215, 228,410.)
Despite their lofty objective to obtain a six figure settlement
coupled with an absurd stipulation regarding the settlement’s future
admissibility in unrelated actions, Sulphur and Malibu ultimately recovered
a mere $3000 and $100, respectively. (AA 33, 506-509.) Such nominal
recoveries certainly do not establish that they succeeded in their litigation
objectives. Rather, they confirm that plaintiffs realized on the eve oftrial
what a tenuous case they had and offered to settle for a pittance simply to
extricate themselves from this action and to limit the amount ofattorney’s
fees and costs for which they would ultimately be liable to Defendants, i.e.,
they presumably sought to eliminate the significant risk ofa defense verdict
which would have entitled Defendants to all oftheir reasonable attorney’s
fees and costs as opposed to just the post-offer fees and costs to which
Defendants would be entitled by accepting Sulphur and Malibu’s May 21,
2004 C.C.P. §998 offers. Accordingly, Sulphur and Malibu cannot be
considered the prevailing parties under Civil Code §1717. In light ofthe
facts ofthis case, the trial court abused its discretion in ruling that Sulphur
and Malibu were, in fact, prevailing parties.
20. 12
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The California Supreme Court has confirmed that “under
[C.C.P.] section 998 a defendant whose pretrial offer is greater than the
judgment received by the plaintiffis treated for purposes ofpostoffer costs
as ifit were the prevailing party.” Scott Co. ofCalifornia v. Blount, Inc.
(1999)20 Cal.4lh 1103, 1112.
Sulphur and Malibu did not accept Defendants’ February 11,
2004 C.C.P. §998 offers to compromise for $18,500 and $7500,
respectively. (AA 215, 228.) Sulphur and Malibu subsequently obtained
judgments against Defendants, including KPC, for a mere $3000 and $100,
respectively - less than the amount Defendants had previously offered in
settlement of Sulphur and Malibu’s claims. (AA 33, 506-509.) Thus,
Sulphur and Malibu are precluded from recovering attorney’s fees incurred
after February 11,2004 and, instead, must pay KPC’s attorney’s fees after
that date. Scott Co. ofCalifornia, supra, at 1112. However, the trial court
ruled that KPC was not, in fact, the prevailing party for purposes of
recovering its post-offer fees and costs because Defendants’ C.C.P. §998
offers to Plaintiffs were invalid. (AA 750-756.) This was error as
discussed below.
C. The Courl F.ired In Killing That KPC Is Not The Prevailing
Parly For Purposes Of Recovering Its Attorney’s Fees
Incurred After February 11, 2004
Code ofCivil Procedure §998 (c)(1) provides that:
If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorablejudgment or
award, the plaintiffshall not recover his or her
postoffer costs and shall pay the defendant's costs from
the time ofthe offer.
21. 13
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i. The Court Erred In Ruling That Defendants’ C.C.P. §998
Offers Were Invalid Because They Called For A
Confidentiality Provision
The issue ofwhether a settlement offer is sufficiently certain to
be enforceable involves a question of law, which the court reviews de novo.
Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal. App. 4th 263,
268; Barella v. Exchange Bank (2000) 84 Cal. App. 4lh 793, 797-798
(where determination ofvalidity ofC.C.P. §998 offer requires application
oflaw to undisputed facts, the trial court’s determination is reviewed de
novo.)
In this action, the trial court erroneously relied upon Barella v.
Exchange Bank (2000) 84 Cal. App. 4lh 793, to support its ruling that
Defendants’ C.C.P. §998 offers were invalid because they contained a
confidentiality provision. (AA 750-753.) However, Barella is inapplicable
because it involved a defamation action and a “secret” settlement, neither of
which are present in this case.
The Barella court took great pains to emphasize that in the
narrow context ofa defamation action a confidentially provision in a
C.C.P. §998 offer as to the contemplated settlement and its amount is
incapable ofvaluation and renders the offer invalid for purposes ofshifting
post-offer fees and costs pursuant to C.C.P. §998 because “the worth to an
individual ofthe chance to clear his or her good name is simply too
subjective.” Id. at 802. The court based its holding on the principles that
“our ‘[s]ociety has a pervasive and strong interest in preventing and
redressing attacks upon reputation” {Id. at 801) and *‘[t]he destruction that
defamatory falsehood can bring is, to be sure, often beyond the capacity of
the law to redeem.” Id. (citations omitted.) The court cited the examples of
a plaintiff wishing to clear his good name from allegations ofchild
molestation or transmitting a venereal disease and noted the difficulty a
22. 14
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Moreover, to the extent that the trial court intended to suggest
that Defendants’ offers are invalid because Plaintiffs’ right to “public
vindication” against their former attorneys cannot be valued, that reasoning
is without merit. See American Airlines, Inc. v. Sheppard, Mullin, Richter
& Hampton (2002) 96 Cal.App.4dl 1017,1056. In. American Airlines,
plaintiffAmerican Airlines sued its former attorneys for breach of fiduciary
duty and professional negligence. Defendants’ made a C.C.P. §998 offer of
$59,200 which American Airlines rejected. American Airlines later
obtained ajury verdict in its favor and was ultimately awarded a total of
$34,989.16. The trial court subsequently awarded defendants their costs,
trialjudge would have in placing a value on a plaintiffs desire to publicly
clear his name. Id.
In the present case, Plaintiffs did not seek to clear their names of
any allegations ofwrongdoing. (AA 1-19.) Rather, they simply sought to
recover the modest attorney’s fees (approximately $14,000) they paid
Defendants in connection with the underlying action involving the return of
the unused portion ofa furniture deposit. (AA 1-19,215-216, 247-253.)
Sulphur and Malibu’s goals are clearly not analogous to those contemplated
in Barella.
The Barella court also specifically stated that it was not
addressing “the validity ofa confidentiality clause that is attached only to
the amount ofthe settlement.” Id. at 798 (emphasis in original.) It further
acknowledged that “an offer made pursuant to [C.C.P.§998] may properly
include nonmonetary terms and conditions” (Id. at 799) and that “a
confidentiality clause may promote settlement.” Id. at 799 (emphasis in
original.) The court explicitly confined its inquiry to whether “a plaintiff
seeking to vindicate his good name (and to recover damages for its
famishment) [must] reject a generous-but secret-settlement at his peril.” Id.
at 795.
23. 15
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including expert witness fees, because American Airlines failed to obtain a
judgment greater than defendants’ C.C.P. §998 offer.
American Airlines appealed contending, inter alia, that it did
obtain ajudgment more favorable than defendants’ offer because it
obtained ajury verdict in its favor and “its primary purpose for litigating
was to obtain a determination that defendants’ conduct was improper and
constituted a breach of fiduciary and professional duty” and “thejudgment
finding defendants liable for breach offiduciary duty was in itselfmore
favorable than a settlement for $59,200.” American Airlines at 1054. In
affirming the trial court’s award ofcosts to defendants, the Second District
Court ofAppeal held:
A more difficult question is whether and how to
evaluate the worth to American ofwinning ajury
verdict against defendants, in determining whether
American actually obtained ajudgment more favorable
than defendants' section 998 offer. American contends
Id. at 1056; also see Rutter, Cal. Practice Guide: Civ. Pro. Before Trial CH.
12(II)-C, C. Statutory Offer To Compromise (CCP § 998) §12:662, p.
that the primary purpose ofpursuing this litigation was
to obtain a declaration ofdefendants' wrongdoing,
rather than to obtain a monetaryjudgment.
American's arguments are not unjustified.... We
cannot see how section 998 could retain any vitality..
. ifin each case in which it comes into play the
plaintiffcan attempt to argue that anyjudgment
declaring wrongdoing by the defendant is worth more
than the monetary amount offered in settlement. Such
an interpretation ofsection 998 would simply be
unworkable.
24. 16
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12(II)-34 (2004)(“the ‘worth’ ofobtaining ajudgment establishing
defendant’s wrongdoing is not considered in determining whether the
judgment ultimately recovered by plaintiffis ‘more favorable’ than
defendant’s §998 offer.”)(emphasis in original.)
The purpose ofrequiring the terms ofa C.C.P. §998 offer to be
sufficiently certain and capable ofvaluation is so that it is possible to
determine whether a plaintiffs recovery is “more favorable” than the
amount ofthe C.C.P. §998 offer. See generally Valentino v. Elliott Sav-On
Gas, Inc. (1988) 201 Cal.App.3d 692,700-701. Because the value of
obtaining ajudgment against a legal malpractice defendant, i.e., public
vindication, is not to be considered in determining whether thejudgment is
more favorable than the defendant’s offer, the fact that the offer contains a
confidentiality provision is irrelevant. The trial court’s ruling ignores this
fact as well as C.C.P. §998(b) which allows for non-monetary terms in a
C.C.P. §998 offer. Indeed, neither Plaintiffs nor the trial court cited to any
authorities which would support extension ofthe Barella court’s rationale
beyond the context ofa defamation action. (AA 39-194, 622-679, 750-
756.)
Further, the present case does not involve a “secret” settlement as
Barella did. In Barella, the defendant bank served a C.C.P. § 998 offer to
the plaintiffin which “the Bank offered to pay [plaintiff] $25,000 in
consideration for a dismissal with prejudice ofhis claims against the Bank
and an ‘Agreement to strictly maintain the confidentiality ofthe settlement
and the settlement amount.’” Barella at 796-797. Thus, the bank’s offer
contemplated confidentiality ofthe existence ofthe settlement itselfas well
as the amount ofthe settlement. Under such circumstances, the Barella
court held that “in a defamation action, a settlement offer that by its terms
cannot be made public, cannot be effective under section 998.” Id. at 801.
25. iwi
In stark contrast, Defendants’ C.C.P. §998 offers to Sulphur and
Malibu did not require the existence ofthe contemplated settlement to be
confidential. (AA 231-237.) In fact, the only practical effect ofthe
confidentiality provision in Defendants’ offers was to keep the settlement
amount confidential. The full terms ofthe settlement (Defendants’
payment to Sulphur and Malibu, dismissal ofthe action against Defendants,
a general release, and each party to bear their own fees and costs) were all
identified in Defendants’ offers which would have been made public when
filed with the court (with only the amount ofsettlement redacted) if
accepted. C.C.P. §998(b)(1); California Rule ofCourt, Rule 225.2 (AA
231-237.) Thus, the scope ofthe Barella confidentiality provision was
significantly broader than the provision at issue in the present case.
Moreover, the entire purpose behind C.C.P. §998 is to encourage
settlement. Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119
Cal.App.4,h 263,268; Vick v. DaCorsi (2003) 110 Cal.App.4th 206, 212.
This purpose would be thwarted ifconfidentiality provisions were generally
held to invalidate a C.C.P. §998 offer. Confidentiality provisions are
routinely used in resolving a variety ofcases such as professional
malpractice and employment litigation. The use ofC.C.P. §998 offers in
these and many other types ofcases would be greatly diminished ifoffers
containing confidentiality provisions like Defendants’ were invalid. This
would undermine the objective of C.C.P. §998. For the foregoing reasons,
the trial court erred in ruling that Defendants’ C.C.P. §998 offers were
invalid because they contained a confidentiality provision.
Indeed, Defendants made a ('.P, §998 offer to plaintiff PCM that
contained Hie same terms ns the offers to Sulphur and Malibu. (AA ?8-30,
231 237.) Only the amount of the proposed settlement was redacted when
PCM’h acceptance of that offer was tiled with the trial court. (AA 2<» -3.'A
17
26. 18
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ii. The Court Erred To The Extent It Based Its Ruling On A Belief That
The General Release And Settlement Provision In Defendants’ C.C.P.
§998 Offers Renders Them Invalid
Although the presence ofa general release and settlement
provision in Defendants’ C.C.P. §998 offers does not appear to be the basis
upon which the trial court deemed the offers invalid, the court did state in
its September 2, 2004 order that Defendants’ offers were “subject to
criticism” for requiring a “release and settlement agreement, the full terms
ofwhich are not stated, but which is stated to extend to persons not
specifically named as parties to the litigation.” (AA 753.) Thus, in an
abundance ofcaution, Defendants will address this issue on appeal.
As noted above, the full terms ofthe contemplated release and
settlement agreement (Defendants’ payments to Sulphur and Malibu,
dismissal ofthe action against Defendants, a general release, and each party
to bear their own fees and costs) were, in fact, explicitly stated in
Defendants’ offers. (AA 231-237.) The offers do not contemplate any
terms in addition to those identified in the offers. (AA 231-237.)
Further, the fact that Defendants’ C.C.P. §998 offers called for a
routine general release of Sulphur and Malibu’s claims against Defendants
and their partners, agents or employees in the contemplated settlement
agreement does not render the offers invalid. Rather, C.C.P. §998 offers
containing general releases have expressly been deemed valid. See
Goodstein v. Bank ofSan Pedro (1994) 27 Cal.AppA1*1 899, 907-908.
In Goodstein, supra, the defendant bank served on plaintiff
Goodstein a C.C.P. §998 offer containing the following language:
In full settlement ofthis action, [Bank] hereby offers
to pay [Goodstein] the total sum of$150,000 in
exchange for each ofthe following: fl|] 1. The entry of
a Request for Dismissal with prejudice on behalfof the
27. 19
153577
Plaintiffin favor of [Bank]; ffl] 2. The execution and
transmittal ofa General Release by [Goodstein] in
favor of [Bank]; ffl] 3. Each party is to bear their own
respective costs and attorney's fees."
Id. at 905 (emphasis added)(brackets in original). The court rejected
Goodstein’s argument that the above language rendered the offer invalid
because it “required him to surrender ‘other present and future possible
causes ofaction against the defendant,’ thus rendering the offer ‘hopelessly
uncertain.’” Id. at 907. Rather, the court held that the offer was not invalid
or uncertain because “[t]he clear and unambiguous language ofthe offer
provides that the terms and conditions applied only ‘in full settlement of
this action.’ Accordingly, the offer reasonably cannot be construed to apply
to other litigation contemplated by Goodstein.” /(/.(emphasis added.)
Similarly, each ofDefendants’ offers stated that it was an “offer
to compromise this case” and therefore called for a settlement and release
ofclaims “arising from or related to the facts giving rise to this action and
the causes ofaction asserted in this action.” (AA 231-237.) (emphasis
added.) As in Goodstein, Defendants’ offers are clear that they are made to
“compromise this case” and, as such, “cannot be construed to apply to other
litigation contemplated by” Sulphur or Malibu. Thus, Defendants’ C.C.P.
§998 offers are not uncertain or invalid as a result oftheir general release
provision.
For the foregoing reasons, Defendants’ C.C.P. §998 offers are
valid. Accordingly, because Defendants’ offers are for an amount greater
than Sulphur and Malibu recovered against Defendants, Sulphur and
Malibu are precluded from recovering any fees and costs they incurred after
February 11, 2004 and, instead, must pay KPC’s fees and costs incurred
after that date. C.C.P. §998 (c)(1); Scott Co. ofCalifornia, supra, at 1112-
1113. The court, therefore, erred in awarding the Plaintiffs their attorney’s
28. 2. THE COURT ERRED IN AWARDING SULPHUR AND MALIBU
ATTORNEY’S FEES INCURRED ON BEHALF OF PLAINTIFF
PACIFIC COAST MANAGEMENT
addition to other costs.”
20
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Civil Code §1717(a)(emphasis added.) Further, a prevailing party may not
recover fees and costs incurred on behalfofanother party. See generally
fees and costs incurred after February 11,2004 and in denying KPC its fees
and costs after that date.
The standard for review ofthe amount ofan award of attorney’s
fees is abuse ofdiscretion. PLCM Group v. Drexler (2000) 22 Cal.4th
1084, 1095. However, a court “review[s] de novo the legal determination
that [a party] is entitled to recover attorney fees pursuant to contract.”
Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal. App. 4th 693, 707;
Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84
Cal.App.4th 671, 677.
The trial court erred in awarding to Sulphur and Malibu
attorney’s fees incurred on behalfofPCM because: 1) PCM is not a
prevailing party in this action; 2) Sulphur and Malibu are not entitled to
recover fees incurred solely on PCM’s behalf; and 3) PCM’s acceptance of
Defendants’ February 11,2004 C.C.P. §998 offer in this action requires
each party to bear their own attorney’s fees and costs.
Only parties determined to be “prevailing parties” may recover
fees and costs under Civil Code § 1717(a):
In 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 ... to the prevailing party, then the party who
is determined to be the party prevailing on the contract
... shall be entitled to reasonable attorney's fees in
29. 21
153577
Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192. In that
regard, PCM settled its claims against Defendants by accepting Defendants’
February 11, 2004 C.C.P. §998 offer pursuant to which PCM and
Defendants would each bear their own costs and attorney’s fees in the
present action. (AA 26-32.)
However, in their motion for attorney’s fees, Sulphur and Malibu
inappropriately failed to allocate to PCM any ofthe attorney’s fees incurred
by Plaintiffs. (AA 39-194, 622-679.) In fact, numerous billing entries
submitted in support ofthe motion relate specifically to PCM. (See, e.g.,
Gustafson’s 5/7/04 entry (“Draft supplemental responses to special
interrogatories for PCM and MBLP in case parties do not settle”) (AA
158); Gustafson’s 5/17/04 entry (“begin working with R. Vos to prepare
voluntary supplemental responses for all three plaintiffs”) (AA 160);
Chatfield’s 5/18/04 entry (“work with Gustafson to put PCM settlement
agreement in final form and transmit to counsel for KPC”) (AA 118); also
see Gustafson’s 6/3/04 entry and Chatfield’s 6/3/04, 6/9/04, and 6/11/04
entries.) (AA 120, 121, 163.)
Sulphur and Malibu are not entitled to recover such fees incurred
on behalfofPCM. Moreover, because the remaining billing entries are so
vague, it is impossible to determine on which plaintiffs behalfany
particular task was performed. (AA 73-194.) Consequently, Defendants
argued to the trial court that at least one third ofthe fees at issue should be
allocated to PCM. (AA 211.)
The trial court ultimately ruled in its September 2, 2004 and
September 28, 2004 orders that Sulphur and Malibu were prevailing parties
on the contract and, therefore, entitled to recover their fees and costs. (AA
750-756.) The court did not find PCM to be a prevailing party. (AA 750-
756.) Indeed, PCM did not even seek to be determined a prevailing party
or seek attorney’s fees and costs. (AA 39-194, 622-679.) Thus, based
30. 22
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upon the court’s orders, only Sulphur and Malibu are entitled to recover
attorneys’ fees and costs (notwithstanding Defendants’ position that
Sulphur and Malibu are not, in fact, the prevailing parties in this action.)
However, the trial court’s September 2,2004 and September 28,
2004 orders awarding Sulphur and Malibu reasonable attorney’s fees did
not allocate any of the fees at issue to PCM despite the fact that numerous
fees were clearly incurred solely on PCM’s behalf. (AA 750-756.) The
trial court enumerated in its September 28,2004 order the various bases for
reducing the fees requested by Sulphur and Malibu. (AA 755.)
Significantly, it did not state that any fees were reduced as a result ofbeing
incurred on behalfofthe settling plaintiffPCM. (AA755.) The trial court
clearly erred in awarding Sulphur and Malibu fees incurred on behalfofa
non-prevailing party who specifically contracted with Defendants that it
would bear its own fees and costs in this action. Thus, this court should
reverse the trial court’s order and remand this case to the trial court to
reduce the amount ofthe fee award taking into account fees incurred for
work performed on behalfofPCM.
3. THE COURT ERRED IN AWARDING PLAINTIFFS THEIR
EXPERT WITNESS FEES
A trial court’s determination ofthe legal basis for an award of
attorney’s fees and costs is a question oflaw to be reviewed de novo.
Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.
Regardless ofwhen Plaintiffs incurred their expert witness fees,
they cannot recover any portion ofthem. Fees ofexperts not ordered by the
court are expressly precluded by C.C.P. § 1033.5(b)(1). Neither Mr. Brown
nor Mr. Tuft were court ordered experts in this action. (AA 386.)
Moreover, there is no other statute (such as C.C.P. §998) that would permit
Sulphur or Malibu to recover any expert witness fees. Thus, the trial
court’s award ofexpert fees paid to Mark Tuft in the sum of $3,385.84 and
31. 4. THE COURT ERRED IN AWARDING PLAINTIFFS THEIR
COSTS FOR MODELS, BLOWUPS AND PHOTOCOPIES OF
EXHIBITS
5. CONCLUSION
Dated: February 4, 2005
LINDAHL, SCHNABEL, KARDASSAKIS & BECK LLP
23
153577
Based on the foregoing and the record herein, Defendants and
Appellants respectfully submit that the orders granting Plaintiffs’ motion
for attorney’s fees and motion to tax costs and the orders denying
Defendants’ motion for attorney’s fees and motion to tax costs should be
reversed.
to Michael Brown in the sum of$1500 are improper and this court should
reverse the trial court’s award ofsuch fees.
Regardless ofwhen Plaintiffs incurred fees for models, blowups
and photocopies ofexhibits, they cannot recover any portion ofthem.
Costs for models, blowups and photocopies ofexhibits “may be allowed if
they were reasonably helpful to aid the trier offact.” C.C.P.
§1033.5(a)(12). As the present action did not go to trial, none of Sulphur or
Malibu’s models, blowups or photocopies were “reasonably helpful to aid
the trier of fact.” Thus, there is no basis to support the trial court’s award
ofcosts for models, blowups and photocopies and this court should reverse
the trial court’s award ofsuch costs.
Bridget E. Bowie
Attorneys for Defendants
KNAPP, PETERSEN & CLARKE, STEVEN
RAY GARCIA, STEPHEN M. HARRIS and
ANDRE JARDINI
32. Dated: February 4, 2005
24
153577
BRIEF FORMAT CERTIFICATE PURSUANT TO C.R.C. 14(c)
Pursuant to C.R.C., Rule 14(c), in reliance on the word count of
the computer program used to prepare the brief, I certify that Appellants’
Opening Briefcontains 6736 words.
Bridget E. Bowie
33. PROOF OF SERVICE
PLEASE SEE ATTACHED SERVICE LIST
X
PROOF OF SERVICE
On February 7,2005,1 served the foregoing document
described as APPELLANT’S OPENING BRIEF on the parties in the
above-entitled action by placing true copies thereofenclosed in sealed
envelopes and addressed as follows:
---- (BY FACSIMILE) In addition, on I also faxed a copy ofsaid
document to all parties where indicated to the FAX number which is
printed under each address on this Proofof Service.
Executed on February 7, 2005, at Los Angeles, California. I declare
under penalty ofpenury under the laws ofthe State ofCalifornia that the
foregoing is true and correct.
BY MAIL: I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. Under that
practice, it would be deposited with U.S. Postal Service on that same
day with postage thereon fully prepaid at Los Angeles, California in
the ordinary course ofbusiness. I am aware that on motion ofthe
party served, service is presumed invalid ifpostal cancellation date
or postage meter date is more than one day after date of deposit for
mailing in affidavit.
__ BY FEDERAL EXPRESS as follows: I caused said document to be
sent Federal Express for overnight delivery (next business morning)
to the offices ofthe addressee.
I, the undersigned, am employed in the County ofLos
Angeles, State ofCalifornia. I am over the age ofeighteen years and not a
party to the within action. My business address is 600 South Figueroa
Street, Suite 1500, Los Angeles, California 90017.