Motion-Secondary: JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                UOC

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

 

Document Scanning Lead Sheet
Aug-27-2014 03:44 pm

 

Case Number: CGC-11-514980
Filing Date: Nov-06-2013 03:44 pm
Filed by: CAROL BALISTRERI
Juke Box: 001 Image: 04266515
REPLY

 

 

 

JASON EVERETT THOMPSON et al VS. DEAN GREGORY ASIMOS

001004266515

Instructions:
Please place this sheet on top of the document to be scanned.ro

10
i

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

C. Todd Norris, SBN 181337 Suferiog il
Edward D. Winchester, SBN 271500 County of BOF Cain, D
BULLIVANT HOUSER BAILEY PC N "anes

601 California Street, Suite 1800 OV 06 5

San Francisco, California 94108 CAB Ia}. C1
Telephone: 415.352.2700 ay: OBTHE 6
Facsimile: 415.352.2701 . 0,,COURT-
E-Mail: todd.norris@bullivant.com Deputy Bs NY

edward.winchester@bullivant.com

Attorneys for Plaintiffs/Cross-Defendants
JASON EVERETT THOMPSON and WIRED REAL
ESTATE GROUP, INC.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO

JASON EVERETT THOMPSON and WIRED | Case No.: CGC-11-514980

REAL ESTATE GROUP, INC.,
REPLY IN SUPPORT OF MOTION FOR
Plaintiffs, ATTORNEY'S FEES

v. Date: November 13, 2013
Time: 9:30 a.m.

DEAN GREGORY ASIMOS, dba DRAKE Dept.: 608

REALTY, Judge: Wallace P. Douglass

Defendant.

 

AND RELATED CROSS-ACTION. Trial Date: October 9, 2012

 

 

 

I. INTRODUCTION

Plaintiff respectfully requests that the court consider this reply memorandum, which is
being filed one day late due to the fact that defendant violated the rules of procedure multiple
times in filing his own untimely opposition brief, and failed to take any reasonable steps to
mitigate those errors. Although defendant’s counsel has emailed and faxed plaintiff's counsel
numerous times throughout the course of this case, counsel chose to serve the untimely
opposition brief by U.S. mail instead of faxing or emailing the brief, thus depriving plaintiff of
adequate time to file a timely reply.

Although the court has discretion to disregard defendant’s untimely and improperly filed

and served opposition papers, should the Court choose to consider them, it will find that the

14359496.1 -\-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEESan

yn a

10
iv
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

 

 

opposition fails to provide any legal or factual argument for why the amount requested by
plaintiff Thompson in his Motion for Attorney’s Fees should be reduced.
In short, the Opposition is untimely, improper, misleading, and unpersuasive for the

following reasons:

¢ Defendant violated C.C.P § 1005(b)’s filing requirement;

¢ Defendant violated C.C.P § 1005(c)’s method of service requirement;

¢ Defendant misstated the plain text of California Rule of Court 3.1702; and

* Defendant failed to provide any adequate legal or evidentiary basis for reducing

the more than reasonable amount of fees sought by this motion.

Il. ARGUMENT

A Defendant Untimely Filed His Opposition, Untimely Served His Opposition and
Served His Opposition by An Improper Means, Causing a Delay In Plaintiff’s
Ability to File This Reply

This reply memorandum was filed and served one day late because defendant Asimos
continues to flout the procedural rules as this Court is already aware. Indeed, defendant’s
motion for a new trial was denied on the grounds that defendant had breached the rules of
procedure on three separate occasions in making the motion.

With respect to the instant motion, per C.C.P. § 1005(b), Asimos’s Opposition was due
on October 30, 2013, nine days before the November 13, 2013 hearing date for this motion.
Defendant filed his untimely Opposition one day late on October 31, 2013. Instead of
mitigating this error by serving the brief the same day that it was filed by email or fax (as
defendants counsel has done in the past on a regular basis), defendant chose to serve the already
late brief one day later by U.S. mail, ensuring that it would be received by plaintiff several days
after it was due. C.C.P § 1005(c) (requiring service by a method to ensure delivery one court
day after the filing deadline). Thus, instead of receiving the brief on October 31, Thompson’s
counsel did not receive the Opposition until] the afternoon of November 4, 2013.

In the event the Court is inclined to consider defendant’s untimely and improperly

' November 11, 2013 is Veteran’s Day.

14359496.1 -2-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEES10
u
12
13
14
15
16
7
18
19
20
21
22
23
24
25
26
27
28

 

 

served Opposition, plaintiff Thompson requests that the Court then consider Thompson’s
following reply, which is late due to defendant’s three separate breaches of the code: filing late,

serving one day after filing, and serving by an improper method.

B. Plaintiff Timely Filed His Motion for Fees Pursuant to California Rule of Court
3.1702’s Deadline.

California Rule of Court 3.1702(b)(1) provides that:

A notice of motion to claim attorney's fees for services up to and
including the rendition of judgment in the trial court--including
attorney's fees on an appeal before the rendition of judgment in

the trial court--must be served and filed within the time for filing a
notice of appeal under rules 8.104 and 8.108 in an unlimited civil
case or under rules 8.822 and 8.823 in a limited civil case.

The time for appeal in this case was 60 days after the clerked served the judgment which
was entered on August 23, 2013. C.R.C. 8.104 & 8.108. Since Thompson’s motion was filed
on October 18, 2013, which was within 60 days from the date the Court entered judgment and
therefore well within 60 days from the clerk’s service, his motion was timely.

Asimos’s Opposition misstates to the Court the procedural deadline for filing a motion
for attorney’s fees. Asimos cites Nazemi v. Tseng, (1992) 5. Cal. App. 4th 1633, and Russell v.
Trans Pacific Group, (1993) 9 Cal. App. 4th 1717, cases from two decades ago, for the
erroneous proposition that the 2013 version of Rule 3.1702 requires a motion for attomney’s fees
to be filed with the memorandum of costs. A cursory reading of Nazemi and Russell reveals that
both cases discuss Rule 870.2, the former Rule 3.1702, which should have tipped defendant off
that those cases are not reliable. In 1994, two years after Nazemi was decided and one year after
Russell was decided, Rule 870.2 was substantially amended to adopt the current filing deadline
which is triggered by the notice of appeal deadline. See Crespin v. Shewry 125 Cal. App. 4th

259, 265 n.42

2 “The pre-1994 version of the rule covered contractual attorney fee motions only, and required
any notice of motion claiming such fees to be filed before or with the memorandum of costs.
The 1994 amendments repealed and reenacted rule 870.2 in a substantially new form to cover
fees recoverable by statute as well as contract.” Id.

14359496.1 -3-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEESu
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

 

 

Cc. Plaintiff Presented Substantial Evidence As to the Nature and Value of His

Counsel’s Services.

In his Opposition, Asimos cites to Marddirossian & Associates, Inc. v. Ersoff, (2007)
153 Cal. App. 257, for the principle that “competent evidence as to the nature and value of the
attorney’s services must be presented.” (Opposition at p. 3.) But Marddirossian states that
“{a]n attomey’s testimony as to the number of hours worked is sufficient evidence to support an
award of attorney fees, even in the absence of detailed time records.” Id. at 269.

Here, Thompson’s motion was supported by both Bullivant’s detailed time records and
by a declaration from lead counsel C. Todd Norris describing the services performed. Thus,
under the authority Asimos relies upon, substantial and adequate evidence as to the value of

Bullivant’s services is before the Court.

D. There Is No Requirement That Thompson Provide Evidence Regarding The
Reasonable Hourly Rate in the Community.

Asimos argues that, “Plaintiff has failed to present any evidence of the prevailing hourly
rate in the community for attomey and paralegal work.” (Opposition at p. 3.) But there is no
requirement for the moving party to present evidence on the prevailing hourly rate because
whether the fees are reasonable is at the “sole discretion of the trial court.” Nemecek & Cole v.
Horn (2012) 208 Cal. App. 4th 641, 651. All that is required is that the trial court consider the
“reasonable rates in the community as a basis for its award.” Id.

Indeed, as the California Supreme Court has stated: “[t]he experienced trial judge is the
best judge of the value of professional services rendered in his court.” Ketchum v. Moses (2001)
24 Cal.4th 1122, 1132 (internal citations omitted). Thus, the Court has enough experience in the

legal community and evidence before it to determine if Bullivant’s fees were reasonable.

E. Counsel For Defendant’s Opinion As To What the Reasonable Hourly Rate For
Services Charged Is Not Relevant to the Reasonable Market Rate For Those
Services.

Defendant's criticism of counsel for Thompson’s rates is primarily directed at the rates
charged by associate Edward Winchester ($300/hr) and paralegal Kathleen Keegan ($175/hr).

In arguing that those rates are excessive, defendant relies on a declaration from his counsel, Ms.

14359496.1 ~4-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEES10
ul
12
13
14
15
16
7
18
19
20
21
22
23
24
25
26
27
28

 

 

Barsotti. In Ms. Barsotti’s declaration she states that Mr. Winchester and Ms. Keegan’s rates
should be discounted because Ms. Barsotti bills contract attorneys and contract paralegals with
similar experience at a substantially lower rate. But what Ms. Barsotti, a solo practitioner,
charges her clients is not relevant to the reasonable rate of the community:

The reasonable market value of the attorney's services is the

measure of a reasonable hourly rate. This standard applies

regardless of whether the attorneys claiming fees charge nothing

for their services, charge at below-market or discounted rates,

represent the client on a straight contingent fee basis, or are in-

house counsel.

Chacon vy. Litke (2010) 181 Cal. App. 4th 1234, 1260.

FR Defendant Failed to Meet His Burden of Challenging Thompson’s Fees Based On
Excessive Hours.

Where a party challenges “attorney fees as excessive because too many hours of work
are claimed, it is the burden of the challenging party to point to the specific items challenged,
with a sufficient argument and citations to the evidence.” Premier Med. Mgmt. Sys., Inc. v. Cal.
Ins. Guar. Ass'n (2008) 163 Cal.App.4th 550, 564. “General arguments that fees claimed are
excessive, duplicative, or unrelated do not suffice.” Id.

Here, defendant provides a general argument that the fees are excessive. Defendant
argues that counsel for Thompson spent too much time on certain tasks such as trial preparation,
drafting the trial brief, and preparing the fee motion but offers no evidence as to why the time
was excessive. Defendant’s sole specific challenge to the fees is over hours spent by counsel for
Thompson regarding the default taken against defendant Asimos. This was a strategic choice
made by counsel for Thompson which violated no procedural rule nor any professional rule of
conduct and the purpose of which was to bring about an efficient resolution to the litigation.

(Supplemental Decl. of Norris.)

G. It Is Inappropriate For A Court To Consider The Losing Party’s Financial Status
When Assessing An Award of Fees Created By Contract.

Where an award of fees is created by contract, rather than statute, “[e]quitable
considerations [under Civil Code section 1717] must prevail over ... the technical rules of

contractual construction.” Walker v. Ticor Title Co. of Cal., (2012) 204 Cal. App. 4th 363, 373

14359496.1 ~5-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEESCo Oo IN A

10
u
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

 

 

(internal citations omitted). However, in the case of contractual attomney’s fees “a losing party’s
financial condition should not be considered in setting the amount of such an award. . . because
contractual fees are voluntarily incurred.” Jd.

Thus, defendant Asimos’s argument that his Chapter 7 bankruptcy makes “an award of
zero” appropriate in this case is improper. (Opposition at p.5.) Defendant’s bankruptcy is

irrelevant for the purposes of assessing the attorney’s fee award under the principles of equity.

H. The Court Need Not Apportion Fees Between Claims Because Thompson Prevailed
On His Breach of Contract Claim and On His Trademark Infringement Claim and
All Claims Arose Out of the Parties’ Contractual Relationship.

Defendant Asimos does not dispute that hours spent on the contractual claim are
recoverable. Rather, defendant argues, without any supporting evidence, that the attorney’s fees
should be reduced by 50% because Thompson did not “truly prevail” on six of his seven claims.
However, since Thompson prevailed on the trademark infringement claim in addition to the
contractual claim and because the other claims involve common issues, Thompson should be
awarded all of his fees. The entire lawsuit and all claims arose out of the parties’ contractual
relationship.

1. Hours Spent On the Trademark Infringement Claim Are Recoverable

Because the Fee Agreement Provides for Relief Under Tort Claims.

Thompson was awarded $250 for trademark infringement and thus was the prevailing
party on that claim. As a result, hours spent on that claim are recoverable under the fee
agreement.

“Tf a contractual attorney fee provision is phrased broadly enough . . . it may support an
award of attorney fees to the prevailing party in an action alleging both contract and tort,
claims.” Santisas v. Goodin (1998) 17 Cal.4th 599, 608. In Santisas, the fee provision between
the parties in a real estate purchase agreement provided as follows:

In the event legal action is instituted by the Broker(s), or any party
to this agreement, or arising out of the execution of this agreement
or the sale, or to collect commissions, the prevailing party shall be
entitled to receive from the other party a reasonable attorney fee to

be determined by the court in which such action is brought.

Id. at 607 (emphasis added). The court held that the provision allowed the prevailing party to

14359496.1 -6-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEES10
ia
12
13
14
15,
16
17
18
19
20
21
22
23
24
25
26
27
28

 

 

recover on claims in tort because “the provision embraces all claims . . . “arising out of the
execution of th[e] agreement or the sale.” /d. at 608. But cf: Casella v. Southwest Dealer
Services, Inc. (2007) 157 Cal.App.4th 1127, 1161-62 (holding party could not recover on tort
claims because agreement stated only fees “incurred in enforcing or attempting to enforce any
of the terms, covenants or conditions” were recoverable.).

Here, as in Santisas, the attorney’s fees provision between Thompsons and Asimos was
phrase broadly enough to encompass tort claims and contractual claims. Recall that the
provision provides as follows (emphasis added):

In any action, proceeding, or arbitration between Broker [Dean

Asimos dba Drake Realty Services] and Associate-Licensee

[Everett Thompson] arising from or related to this Agreement, the

prevailing Broker or Associate-Licensee shall be entitled to

reasonable attomey fees and costs.
Thus, the operative words “arising from or related to this Agreement” make the attorney’s fees
provision applicable to both contract and tort claims.

Thompson was the prevailing party on his trademark infringement cause of action, a tort
claim. Thus, under the broad fee agreement between the parties, any hours spent on the
trademark infringement action are also recoverable in additional to the hours spent on the
contract action.

2. The Hours Spent on the Contractual and Trademark Infringement Claims

Are Indistinguishable From the Hours Spent on the Other Five Claims
Because They Involve Common Issues.

A party’s “joinder of causes of action should not dilute its right to attoney’s fees.”
Reynolds Metals Co. v. Alperson 25 Cal.3d 124, 130. “Attomey’s fees need not be apportioned
when incurred for representation on an issue common to both a cause of action in which fees are
proper. and one in which they are not allowed.” /d. at 130-31.

Here, the seven causes of action pled by Thompson all involve common issues: the
contract between the parties and Asimos’s continuing use of Thompson’s trademarks, As a
result, Thompson should not be penalized for his joinder of the other five causes of actions.

Furthermore, all causes of action in this case arose out of or were related to the parties”

contractual relationship.

143594961 -7-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEESUn Bw

on

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

 

 

Finally, even if the Court is inclined to reduce Thompson’s fees in a slight amount,
defendant has offered no evidence to the Court as to why it should reduce the award of fees by
any amount, much less the 50% that defendant argues for.

III. CONCLUSION

Defendant Asimos filed and served his Opposition in violation of the procedural rules
and he misstated the procedural rule regarding the filing deadline for a motion for attorney’s
fees. His arguments as to why Thompson’s award for attorney’s fees should be reduced
contradict case law and are unsupported by evidence. Therefore, Thompson’s motion should be
granted in full.

DATED: November 6, 2013
BULLIVANT HOUSER BAILEY PC

 

Attorneys for Plaintiffs/Cross-Defendants
JASON EVERETT THOMPSON and WIRED
REAL ESTATE GROUP, INC.

FoR

14359496.1 -8-
REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEES10
IL
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

 

 

PROOF OF SERVICE

Thompson, and Wired Real Estate Group, Inc. v. Asimos, dba Drake Realty
San Francisco County Superior Court, Case No. CGC-11-514980

Tam employed in the City and County of San Francisco by the law firm of Bullivant
Houser Bailey, PC ("the business"), 601 California Street, Suite 1800, San Francisco, CA
94108. Iam over the age of 18 and not a party to this action. On November 6, 2013, I served
the document(s) entitled:

REPLY IN SUPPORT OF MOTION FOR ATTORNEY'S FEES
upon the following party(ies):

Jessica R. Barsotti

THE LAW OFFICE OF JESSICA R. BARSOTTI
5032 Woodminster Ln.

Oakland, CA 94602

Tel: 510-530-4078

Fax: 510-530-4725

Attorneys for Defendant/Cross-Complainant
DEAN GREGORY ASIMOS, dba DRAKE
REALTY

O BY MAIL (CCP § 1013(a)): I am readily familiar with the ordinary practice of the
business with respect to the collection and processing of correspondence for mailing
with the United States Postal Service. I placed a true and correct copy(ies) of the above-
titled document(s) in an envelope(s) addressed as above, with first class postage thereon
fully prepaid. I sealed the aforesaid envelope(s) and placed it(them) for collection and
mailing by the United States Postal Service in accordance with the ordinary practice of
the business. Correspondence so placed is ordinarily deposited by the business with the
United States Postal Service on the same day.

(J BY FACSIMILE TRANSMISSION (CCP § 1013(e), CRC 2.306): I transmitted the
document(s) by facsimile transmission by placing it(them) in a facsimile machine
‘(telephone number 415-352-2701) and transmitting it(them) to the facsimile machine
telephone number(s) listed above. A transmission report was properly issued by the
transmitting facsimile machine. Each transmission was reported as complete and
without error. A true and correct copy of the transmission report is attached hereto.

X BY OVERNIGHT DELIVERY (CCP § 1013(c)): I am readily familiar with the
ordinary practice of the business with respect to the collection and processing of
correspondence for mailing by Express Mail and other carriers providing for overnight
delivery. I placed a true and correct copy(ies) of the above-titled document(s) in an
envelope(s) addressed as above, with first class postage thereon fully prepaid. I sealed
the aforesaid envelope(s) and placed it(them) for collection and mailing by Express Mail
or other carrier for overnight delivery in accordance with the ordinary practice of the
business. Correspondence so placed is ordinarily deposited by the business with Express
Mail or other carrier on the same day.

13664863.1 -1-
PROOF OF SERVICE(J BY PERSONAL SERVICE UPON AN ATTORNEY (CCP § 1011(a)): I placed a true
and correct copy(ies) of the above-titled document(s) in a seated envelope(s) addressed
as indicated above. J delivered each of said envelope(s) by hand to a receptionist or a
person authorized to accept same at the address on the envelope, or, if no person was
present, by leaving the envelope in a conspicuous place in the office between the hours
of nine in the morning and five in the afternoon.

(] BY PERSONAL SERVICE UPON A PARTY (CCP § 1011(b)): I placed a true and
correct copy(ies) of the above-titled document(s) in a sealed envelope(s) addressed as
indicated above. I delivered each of said envelope(s) by hand to a person of not less
than 18 years of age at the address listed on the envelope, between the hours of eight in
the morning and six in the evening.

I declare under penalty of perjury that the foregoing is true and correct. Executed on

 

 

November 6, 2013, at San Francisco, California.

Daisy 1 Bjoytes

seseok

13664863.1 -2-
PROOF OF SERVICE

Roeflr.

\

U