Preview
1 STEVEN M. SELNA (SBN 133409)
ROBERT W. SELNA (SBN 230385)
2
SELNA PARTNERS LLP
3 70 Washington Street, Suite 303
Oakland, California 94607
4 Tel: (510) 387-8508
5
NAOMI R. DEWEY (SBN 249874)
6 NICOLE HORNICK (SBN 318624)
TRUSTED LEGAL, PLC
7 21 E. Carrillo St., Ste 130
Santa Barbara, CA 93101
8
Tel: (805) 979-5160
9 Email: Naomi@trusted.legal
Nicole@trusted.legal
10
Attorneys for Defendants and Cross-Complainants IO73 INVESTMENTS, INC., TRISTAN
11
STRAUSS and BRIAN CASEY
12
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
FOR THE COUNTY OF SANTA BARBARA
15
16
17 JONAS SVENSSON, individually, Case No. 20CV04285
18 Petitioner, RESPONDENTS’ OPPOSITION TO
19 PETITIONER SVENSSON’S MOTION FOR
vs. AN AWARD OF ATTORNEYS FEES;
20 MEMORANDUM OF POINTS AND
iO73 INVESTMENTS, INC., and TRISTAN AUTHORITIES
21 STRAUSS,
Date: May 23, 2022
22 Respondents.
Time: 10:00 a.m.
23 Dept.: 5
24 Amended Complaint Filed: March 30, 2020
25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
26 Respondents IO73 INVESTMENTS, INC. and TRISTAN STRAUSS (collectively,
27 “Respondents” or “iO73”), hereby oppose Petitioner JONAS SVENSSON’S (“Petitioner” or
28 “Svensson”) Motion for An Award of Attorneys’ Fees, as follows:
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
1
MEMORANDUM OF POINTS AND AUTHORITIES
2
3
I.
4
INTRODUCTION
5
This Writ of Mandamus (the “Writ”) arises out of a shareholder dispute between Jonas
6
Svensson, a former employee of iO73 who remains a director and shareholder. The Writ was
7
granted in favor of Svensson on September 3, 2021. That ruling is currently on appeal, in Court
8
of Appeal Case No. B315801. The issue on appeal centers on whether the Court can compel the
9
production of documents from entities in which Svensson is neither a shareholder nor a director
10
under Corporations Code 1601 and 1602. The Court of Appeal has yet to set a date for oral
11
argument and Respondents herein argue that granting attorney fees before the Court of Appeal
12
has determined whether Svensson is the prevailing party on the Writ is premature, and these
13
proceedings should be stayed. Additionally, Respondents take issue with the reasonableness of
14
the attorney fees sought by Svensson, which are dramatically at odds with the simple nature of
15
the Writ of Mandamus and the statutory relief sought.
16
A writ of mandate brought to enforce rights under Corporations Code 1601 or 1602 is a
17 simple instrument. Svensson’s counsel at the time, Alan Condren, argued that his preparation
18 of the Writ took additional time because he had not prepared one before. However, forms for
19 this motion are freely available. As an example, a sample motion with points and authorities at
20 West’s Cal. Code Forms, Corp. § 1603 Form 3 (3d ed.) is three paragraphs long, and that motion
21 seeks additional relief not at issue in the instant case. The moving party simply needs to state
22 that (1) they have a right to inspection, (2) they have been denied that right and (3) they seek a
23 remedy under the relevant portion of the Corporations Code. In the instant case, for reasons that
24 are unclear, Mr. Condren took a more circuitous route – billing a staggering $42,072 on a Writ
25 that was not only moot but also incredibly simple. Notably, Mr. Condren’s Writ of Mandate
26 contained less than four pages of points and authorities, and a recital of the facts that had been
27 re-used from motions in companion case Svensson v. iO73, et al., SBSC Case No 20CV01556.
28
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
1
In this case, the Writ was filed on December 18, 2020. Mr. Condren’s billing records,
2
attached as Exhibit 1 to the Motion for Attorney Fees, show 15.4 hours of time ostensibly
3
dedicated to the Writ, including an entry for “Research regarding the same” on December 14,
4
2020, which has no tangible connection to the instant Writ at all.
5
In February 2021, long after the Writ had been prepared and filed, Mr. Condren continued
6
to bill time on the Writ, although his billing entries make little chronological sense given the fact
7
that the Writ was already set for hearing. Another 4.6 hours are spent on “research regarding
8
mandamus proceedings” and then, in response to iO73’s brief Opposition to the Motion, Mr.
9
Condren goes on to bill a staggering 33.2 hours researching the Opposition, including more time
10
evaluating mandamus issues in general, another vague “research regarding the same” set at 2.5
11
hours, and 2.6 hours to “gather thoughts.” It should be noted that Mr. Condren was a business
12
litigator of considerable experience at the time; given his skill, training and experience, the
13
overbilling makes no sense.
14
March 2021 sees further billing entries from Mr. Condren and his associate Elan Shpigel
15
for what must now be one of the most expensive Reply Briefs in the history of the Santa Barbara
16
Superior Court. Notwithstanding the 3.8 hours billed in February for preparation of the reply,
17 Mr. Condren bills another 21.2 hours preparing the reply brief, revising it and doing additional
18 research into the mandamus procedure. His associate Mr. Shpigel then charges $350 for the
19 administrative task of filing the brief. Assuming the billing records are accurate, this amounts
20 to 54.4 hours of partner time on a ten-page reply brief – an inefficiency that very few clients
21 would tolerate.
22 What makes the substantial time spent by Mr. Condren on the Writ even more
23 unreasonable is the fact that at the time the Writ came on for hearing in June 2021, Respondent’s
24 counsel had provided all available responsive documents that would satisfy the request under
25 Corporations Code §§ 1601 and 1602. Petitioner already had the documents, and the Writ was
26 entirely unnecessary.
27
28
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
1
II.
2
LEGAL ARGUMENT
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A. The Burden Of Establishing Amount of Fees is on the Claimant.
4
The party seeking attorney’s fees has the burden of establishing entitlement to an award
5
and of documenting the appropriate hours expended and hourly rates. (Lunada Biomedical v.
6
Nunez (2014) 230 Cal. App. 4th 459, 486.) Consequently, competent evidence as to the nature
7
and value of the attorney’s services must be presented. (City of Colton v. Singletary, 206 Cal.
8
App. 4th 751, 784, 142 Cal. Rptr. 3d 74 (4th Dist. 2012) [evidence furnished should allow the
9
judge to consider whether the case was overstaffed, how much time the attorney spent on
10
particular claims, and whether the hours were reasonably expended]; see Bender v. County of
11
Los Angeles (2013) 217 Cal. App. 4th 968, 986–987.) Petitioner has submitted partial invoices
12
showing time purportedly spent on the instant Writ, but the amount of time spent bears no
13
relation to the relatively straightforward tasks involved. While Mr. Condren may have not filed
14
a Writ of Mandate before, an attorney of his skill, training and experience would promptly learn,
15
with limited research, that the procedure was straightforward and simple. His billing records
16
suggest he struggled to get up to speed on the statutory rights asserted by his client. It may be
17
true, but neither Respondent (nor Mr. Svensson) should be forced to pay for that education.
18
B. Petitioner’s Attorney Fees Must be Reasonable.
19
When authorized by contract, statute or “law,” reasonable attorney fees are “allowable
20
costs.” (Code of Civil Procedure § 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17
21
Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254,
22
1268.) Petitioner’s fees are not reasonable. “In challenging attorney fees as excessive because
23
too many hours of work are claimed, it is the burden of the challenging party to point to the
24
specific items challenged, with a sufficient argument and citations to the evidence. General
25
arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.’ ” (Lunada
26
Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.)
27
Petitioner’s fee request is not reasonable, because the time spent is not reasonable.
28
Statutory attorney fees are ordinarily determined by the court pursuant to the “lodestar” or
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
1
“touchstone” method. Under this approach, a base amount is calculated from a compilation of
2
time reasonably spent and reasonable hourly compensation of each attorney. The base amount
3
is then adjusted in light of various factors. (Serrano v. Priest (“Serrano III”) (1977) 20 Cal.3d
4
25, 48; Serrano v. Unruh (1982) 32 Cal.3d 621, 639; Meister v. Regents of Univ. of Calif. (1998)
5
67 Cal.App.4th 437, 446-447.). The lodestar method vests the court with discretion to decide
6
which of the hours expended by the attorneys were “reasonably spent” on the litigation.
7
(Hammond v. Agran (2002) 99 Cal.App.4th 115, 133 (disapproved on other grounds by
8
Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 4); Meister v. Regents of Univ. of
9
Calif. (1998) 67 Cal.App.4th 437, 449.)
10
The predicate of any attorney fee award is the necessity and usefulness of the conduct for
11
which compensation is sought. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 CA4th 819, 846.).
12
Here, while the fee award would be appropriate under Corporations Code §§ 1601 and 1602 had
13
Svensson made a formal demand for documents and inspection and that demand was refused, in
14
the instant case the request was entirely duplicative of discovery in the companion case, and
15
Svensson received all documents sought in that case long before the Writ came on for hearing.
16
C. Petitioner is Not the Prevailing Party Until and Unless the Appeal is Decided in
17
His Favor.
18
Normally, the prevailing party is the one in whose favor a net judgment is entered. (See
19
Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 365, 370 (superseded by statute on other
20
grounds as stated in Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1183 fn. 6 (J.
21
Chin, concur. and dissent.opn.)). Here, Respondent has filed an appeal of the Court’s ruling on
22
the Writ of Mandate. If the Appellate Court rules in favor of iO73, Petitioner is not entitled to
23
attorney fees under the 1601 and 1602 statutes. Awarding any attorney fees in the instant case is
24
premature.
25 While discussing enforcing judgments pending appeal, the Court in Chapala
26 Management Corporation v. Stanton, ruled that “[T]he perfecting of an appeal stays proceedings
27 in the trial court upon the judgment or order appealed from or upon the matters embraced therein
28 or affected thereby, including enforcement of the judgment or order...The purpose of the
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
1
automatic stay rule is ‘to protect the appellate court's jurisdiction by preserving the status quo
2
until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by
3
altering the appealed judgment or order by conducting other proceedings that may affect it.’
4
(citing Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 103 Cal.Rptr.2d 174).” Chapala,
5
186 Cal. App. 4th 1532, 1542, 113 Cal. Rptr. 3d 617, 624–25 (2010) Here, awarding attorney
6
fees prior to the Appellate Court’s ruling fails to preserve the status quo as we do not know who
7
the prevailing party will be.
8
III.
9
CONCLUSION
10
Any ruling on Petitioner’s Motion for Attorney Fees should be stayed while the ruling
11
on Petitioner’s Writ of Mandate is under appeal. Additionally, Petitioner’s unnecessary Writ of
12
Mandate should have taken no more than twenty (20) hours of attorney time. For the foregoing
13
reasons, Respondent requests that Petitioner’s Motion for Attorney Fees be denied, or in the
14
alternative, assuming without conceding that attorney fees are warranted, that all fees beyond
15
seventeen (17) hours for attorney Alan Condren and three (3) hours for attorney Elan Shpigel,
16
be stricken.
17
18 Dated: May 11, 2022 TRUSTED LEGAL, APLC
19
20
_________________________________
21 Naomi R. Dewey
Attorneys for Respondents
22 iO73 INVESTMENTS, INC., et al.
23
24
25
26
27
28
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
1 PROOF OF SERVICE
2
I am a resident of the State of California, over the age of eighteen, and not a party to the
3 within action. My business address is 21 E. Carrillo Street, Ste., 130 Santa Barbara, CA 93101.
On May 11, 2022, I served the within document:
4
RESPONDENTS’ OPPOSITION TO PETITIONER SVENSSON’S MOTION FOR AN
5
AWARD OF ATTORNEYS FEES; MEMORANDUM OF POINTS AND AUTHORITIES
6
By Mail: By placing the document(s) listed above in a sealed envelope with postage
7 thereon fully prepaid, in the United States mail at Santa Barbara, addressed as set forth below.
8
By Overnight Delivery: I enclosed the document(s) in an envelope or package provided
9 by an overnight delivery carrier and addressed to the persons at the address(es) set forth below.
I placed the envelope or package for collection and overnight delivery at an office or a regularly
10 utilized drop box of the overnight delivery carrier.
11
X By Electronic Mail: I caused the above-described document to be served by electronic
12 mail to the e-mail address provided by the addressee(s) as indicated below. Said electronic
service was reported as received without error.
13
Stephen L. Ram, Esq.
14
STRADLING YOCCA CARLSON & ROUTH
15 660 Newport Center Drive, Ste 1600
Newport Beach, CA 92660
16 Tele: (949) 725-4102
Email: sram@stradlinglaw.com
17
18 Attorneys for Plaintiffs/Petitioner JONAS SVENSSON
19 I am readily familiar with the firm’s practice of collection and processing correspondence
for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same
20
day with postage thereon fully prepaid in the ordinary course of business. I am aware that on
21 motion of the party served, service is presumed invalid if postage cancellation date or postage
meter date is more than one day after the date of deposit for mailing in affidavit.
22
I declare under penalty of perjury under the laws of the State of California, that the above
23
is true and correct.
24
Executed on May 11, 2022, at Santa Barbara, California.
25
________________________________
26
Erin Landriz
27
28
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OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
Preview
1 STEVEN M. SELNA (SBN 133409) ROBERT W. SELNA (SBN 230385) 2 SELNA PARTNERS LLP 3 70 Washington Street, Suite 303 Oakland, California 94607 4 Tel: (510) 387-8508 5 NAOMI R. DEWEY (SBN 249874) 6 NICOLE HORNICK (SBN 318624) TRUSTED LEGAL, PLC 7 21 E. Carrillo St., Ste 130 Santa Barbara, CA 93101 8 Tel: (805) 979-5160 9 Email: Naomi@trusted.legal Nicole@trusted.legal 10 Attorneys for Defendants and Cross-Complainants IO73 INVESTMENTS, INC., TRISTAN 11 STRAUSS and BRIAN CASEY 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SANTA BARBARA 15 16 17 JONAS SVENSSON, individually, Case No. 20CV04285 18 Petitioner, RESPONDENTS’ OPPOSITION TO 19 PETITIONER SVENSSON’S MOTION FOR vs. AN AWARD OF ATTORNEYS FEES; 20 MEMORANDUM OF POINTS AND iO73 INVESTMENTS, INC., and TRISTAN AUTHORITIES 21 STRAUSS, Date: May 23, 2022 22 Respondents. Time: 10:00 a.m. 23 Dept.: 5 24 Amended Complaint Filed: March 30, 2020 25 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 26 Respondents IO73 INVESTMENTS, INC. and TRISTAN STRAUSS (collectively, 27 “Respondents” or “iO73”), hereby oppose Petitioner JONAS SVENSSON’S (“Petitioner” or 28 “Svensson”) Motion for An Award of Attorneys’ Fees, as follows: -1- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 3 I. 4 INTRODUCTION 5 This Writ of Mandamus (the “Writ”) arises out of a shareholder dispute between Jonas 6 Svensson, a former employee of iO73 who remains a director and shareholder. The Writ was 7 granted in favor of Svensson on September 3, 2021. That ruling is currently on appeal, in Court 8 of Appeal Case No. B315801. The issue on appeal centers on whether the Court can compel the 9 production of documents from entities in which Svensson is neither a shareholder nor a director 10 under Corporations Code 1601 and 1602. The Court of Appeal has yet to set a date for oral 11 argument and Respondents herein argue that granting attorney fees before the Court of Appeal 12 has determined whether Svensson is the prevailing party on the Writ is premature, and these 13 proceedings should be stayed. Additionally, Respondents take issue with the reasonableness of 14 the attorney fees sought by Svensson, which are dramatically at odds with the simple nature of 15 the Writ of Mandamus and the statutory relief sought. 16 A writ of mandate brought to enforce rights under Corporations Code 1601 or 1602 is a 17 simple instrument. Svensson’s counsel at the time, Alan Condren, argued that his preparation 18 of the Writ took additional time because he had not prepared one before. However, forms for 19 this motion are freely available. As an example, a sample motion with points and authorities at 20 West’s Cal. Code Forms, Corp. § 1603 Form 3 (3d ed.) is three paragraphs long, and that motion 21 seeks additional relief not at issue in the instant case. The moving party simply needs to state 22 that (1) they have a right to inspection, (2) they have been denied that right and (3) they seek a 23 remedy under the relevant portion of the Corporations Code. In the instant case, for reasons that 24 are unclear, Mr. Condren took a more circuitous route – billing a staggering $42,072 on a Writ 25 that was not only moot but also incredibly simple. Notably, Mr. Condren’s Writ of Mandate 26 contained less than four pages of points and authorities, and a recital of the facts that had been 27 re-used from motions in companion case Svensson v. iO73, et al., SBSC Case No 20CV01556. 28 -2- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES 1 In this case, the Writ was filed on December 18, 2020. Mr. Condren’s billing records, 2 attached as Exhibit 1 to the Motion for Attorney Fees, show 15.4 hours of time ostensibly 3 dedicated to the Writ, including an entry for “Research regarding the same” on December 14, 4 2020, which has no tangible connection to the instant Writ at all. 5 In February 2021, long after the Writ had been prepared and filed, Mr. Condren continued 6 to bill time on the Writ, although his billing entries make little chronological sense given the fact 7 that the Writ was already set for hearing. Another 4.6 hours are spent on “research regarding 8 mandamus proceedings” and then, in response to iO73’s brief Opposition to the Motion, Mr. 9 Condren goes on to bill a staggering 33.2 hours researching the Opposition, including more time 10 evaluating mandamus issues in general, another vague “research regarding the same” set at 2.5 11 hours, and 2.6 hours to “gather thoughts.” It should be noted that Mr. Condren was a business 12 litigator of considerable experience at the time; given his skill, training and experience, the 13 overbilling makes no sense. 14 March 2021 sees further billing entries from Mr. Condren and his associate Elan Shpigel 15 for what must now be one of the most expensive Reply Briefs in the history of the Santa Barbara 16 Superior Court. Notwithstanding the 3.8 hours billed in February for preparation of the reply, 17 Mr. Condren bills another 21.2 hours preparing the reply brief, revising it and doing additional 18 research into the mandamus procedure. His associate Mr. Shpigel then charges $350 for the 19 administrative task of filing the brief. Assuming the billing records are accurate, this amounts 20 to 54.4 hours of partner time on a ten-page reply brief – an inefficiency that very few clients 21 would tolerate. 22 What makes the substantial time spent by Mr. Condren on the Writ even more 23 unreasonable is the fact that at the time the Writ came on for hearing in June 2021, Respondent’s 24 counsel had provided all available responsive documents that would satisfy the request under 25 Corporations Code §§ 1601 and 1602. Petitioner already had the documents, and the Writ was 26 entirely unnecessary. 27 28 -3- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES 1 II. 2 LEGAL ARGUMENT 3 A. The Burden Of Establishing Amount of Fees is on the Claimant. 4 The party seeking attorney’s fees has the burden of establishing entitlement to an award 5 and of documenting the appropriate hours expended and hourly rates. (Lunada Biomedical v. 6 Nunez (2014) 230 Cal. App. 4th 459, 486.) Consequently, competent evidence as to the nature 7 and value of the attorney’s services must be presented. (City of Colton v. Singletary, 206 Cal. 8 App. 4th 751, 784, 142 Cal. Rptr. 3d 74 (4th Dist. 2012) [evidence furnished should allow the 9 judge to consider whether the case was overstaffed, how much time the attorney spent on 10 particular claims, and whether the hours were reasonably expended]; see Bender v. County of 11 Los Angeles (2013) 217 Cal. App. 4th 968, 986–987.) Petitioner has submitted partial invoices 12 showing time purportedly spent on the instant Writ, but the amount of time spent bears no 13 relation to the relatively straightforward tasks involved. While Mr. Condren may have not filed 14 a Writ of Mandate before, an attorney of his skill, training and experience would promptly learn, 15 with limited research, that the procedure was straightforward and simple. His billing records 16 suggest he struggled to get up to speed on the statutory rights asserted by his client. It may be 17 true, but neither Respondent (nor Mr. Svensson) should be forced to pay for that education. 18 B. Petitioner’s Attorney Fees Must be Reasonable. 19 When authorized by contract, statute or “law,” reasonable attorney fees are “allowable 20 costs.” (Code of Civil Procedure § 1033.5(a)(10)(A), (B) & (C); Santisas v. Goodin (1998) 17 21 Cal.4th 599, 606; Pacific Custom Pools, Inc. v. Turner Const. Co. (2000) 79 Cal.App.4th 1254, 22 1268.) Petitioner’s fees are not reasonable. “In challenging attorney fees as excessive because 23 too many hours of work are claimed, it is the burden of the challenging party to point to the 24 specific items challenged, with a sufficient argument and citations to the evidence. General 25 arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.’ ” (Lunada 26 Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488.) 27 Petitioner’s fee request is not reasonable, because the time spent is not reasonable. 28 Statutory attorney fees are ordinarily determined by the court pursuant to the “lodestar” or -4- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES 1 “touchstone” method. Under this approach, a base amount is calculated from a compilation of 2 time reasonably spent and reasonable hourly compensation of each attorney. The base amount 3 is then adjusted in light of various factors. (Serrano v. Priest (“Serrano III”) (1977) 20 Cal.3d 4 25, 48; Serrano v. Unruh (1982) 32 Cal.3d 621, 639; Meister v. Regents of Univ. of Calif. (1998) 5 67 Cal.App.4th 437, 446-447.). The lodestar method vests the court with discretion to decide 6 which of the hours expended by the attorneys were “reasonably spent” on the litigation. 7 (Hammond v. Agran (2002) 99 Cal.App.4th 115, 133 (disapproved on other grounds by 8 Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, fn. 4); Meister v. Regents of Univ. of 9 Calif. (1998) 67 Cal.App.4th 437, 449.) 10 The predicate of any attorney fee award is the necessity and usefulness of the conduct for 11 which compensation is sought. (Thayer v. Wells Fargo Bank, N.A. (2001) 92 CA4th 819, 846.). 12 Here, while the fee award would be appropriate under Corporations Code §§ 1601 and 1602 had 13 Svensson made a formal demand for documents and inspection and that demand was refused, in 14 the instant case the request was entirely duplicative of discovery in the companion case, and 15 Svensson received all documents sought in that case long before the Writ came on for hearing. 16 C. Petitioner is Not the Prevailing Party Until and Unless the Appeal is Decided in 17 His Favor. 18 Normally, the prevailing party is the one in whose favor a net judgment is entered. (See 19 Smith v. Rae-Venter Law Group (2002) 29 Cal.4th 345, 365, 370 (superseded by statute on other 20 grounds as stated in Sonic-Calabasas A, Inc. v. Moreno (2013) 57 Cal.4th 1109, 1183 fn. 6 (J. 21 Chin, concur. and dissent.opn.)). Here, Respondent has filed an appeal of the Court’s ruling on 22 the Writ of Mandate. If the Appellate Court rules in favor of iO73, Petitioner is not entitled to 23 attorney fees under the 1601 and 1602 statutes. Awarding any attorney fees in the instant case is 24 premature. 25 While discussing enforcing judgments pending appeal, the Court in Chapala 26 Management Corporation v. Stanton, ruled that “[T]he perfecting of an appeal stays proceedings 27 in the trial court upon the judgment or order appealed from or upon the matters embraced therein 28 or affected thereby, including enforcement of the judgment or order...The purpose of the -5- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES 1 automatic stay rule is ‘to protect the appellate court's jurisdiction by preserving the status quo 2 until the appeal is decided. The rule prevents the trial court from rendering an appeal futile by 3 altering the appealed judgment or order by conducting other proceedings that may affect it.’ 4 (citing Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 103 Cal.Rptr.2d 174).” Chapala, 5 186 Cal. App. 4th 1532, 1542, 113 Cal. Rptr. 3d 617, 624–25 (2010) Here, awarding attorney 6 fees prior to the Appellate Court’s ruling fails to preserve the status quo as we do not know who 7 the prevailing party will be. 8 III. 9 CONCLUSION 10 Any ruling on Petitioner’s Motion for Attorney Fees should be stayed while the ruling 11 on Petitioner’s Writ of Mandate is under appeal. Additionally, Petitioner’s unnecessary Writ of 12 Mandate should have taken no more than twenty (20) hours of attorney time. For the foregoing 13 reasons, Respondent requests that Petitioner’s Motion for Attorney Fees be denied, or in the 14 alternative, assuming without conceding that attorney fees are warranted, that all fees beyond 15 seventeen (17) hours for attorney Alan Condren and three (3) hours for attorney Elan Shpigel, 16 be stricken. 17 18 Dated: May 11, 2022 TRUSTED LEGAL, APLC 19 20 _________________________________ 21 Naomi R. Dewey Attorneys for Respondents 22 iO73 INVESTMENTS, INC., et al. 23 24 25 26 27 28 -6- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES 1 PROOF OF SERVICE 2 I am a resident of the State of California, over the age of eighteen, and not a party to the 3 within action. My business address is 21 E. Carrillo Street, Ste., 130 Santa Barbara, CA 93101. On May 11, 2022, I served the within document: 4 RESPONDENTS’ OPPOSITION TO PETITIONER SVENSSON’S MOTION FOR AN 5 AWARD OF ATTORNEYS FEES; MEMORANDUM OF POINTS AND AUTHORITIES 6 By Mail: By placing the document(s) listed above in a sealed envelope with postage 7 thereon fully prepaid, in the United States mail at Santa Barbara, addressed as set forth below. 8 By Overnight Delivery: I enclosed the document(s) in an envelope or package provided 9 by an overnight delivery carrier and addressed to the persons at the address(es) set forth below. I placed the envelope or package for collection and overnight delivery at an office or a regularly 10 utilized drop box of the overnight delivery carrier. 11 X By Electronic Mail: I caused the above-described document to be served by electronic 12 mail to the e-mail address provided by the addressee(s) as indicated below. Said electronic service was reported as received without error. 13 Stephen L. Ram, Esq. 14 STRADLING YOCCA CARLSON & ROUTH 15 660 Newport Center Drive, Ste 1600 Newport Beach, CA 92660 16 Tele: (949) 725-4102 Email: sram@stradlinglaw.com 17 18 Attorneys for Plaintiffs/Petitioner JONAS SVENSSON 19 I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same 20 day with postage thereon fully prepaid in the ordinary course of business. I am aware that on 21 motion of the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 22 I declare under penalty of perjury under the laws of the State of California, that the above 23 is true and correct. 24 Executed on May 11, 2022, at Santa Barbara, California. 25 ________________________________ 26 Erin Landriz 27 28 -7- OPPOSITION TO MOTION FOR ATTORNEYS’ FEES