Motion-Secondary: PETER FAZIO VS. SWIPE USA LLC et al

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                OUI

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Document Scanning Lead Sheet
Nov-10-2011 2:45 pm

Case Number: CGC-06-457420
Filing Date: Nov-10-2011 2:44
Juke Box: 001 Image: 03382755
REPLY

PETER FAZIO VS. SWIPE USA LLC et al

001003382755

Instructions:
Please place this sheet on top of the document to be scanned.Co ont HW FF WN

10

Donald Tenconi, #100358 Fy For
LAW OFFICES OF DONALD TENCONI
1600 South Main Street, Suite 325

un

Walnut Creek, California 94596-8812 NOV 19 2011
Telephone: (925) 977-9080 CLERK colt
Facsimile: (925) 977-9089 Ol
imi! (925) Ln, F Tees COURT A
Attorney for Plaintiff and Cross-Defendant Deputy Caz
Peter Fazio and Cross-Defendant Money Link
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
PETER FAZIO CASE NO.: CGC-06-457420
PLAINTIFF, PLAINTIFF AND CROSS-DEFENDANT
VS. PETER FAZIO’S REPLY TO SWIPE’S
OPPOSITION TO MOTION FOR AWARD OF
SWIPE USA, LLC ATTORNEY’S FEES AND COSTS
DEFENDANT Date: December 5, 2011
f Time: 9am.
. Dept: 306
And All Related Cross-Actions ] Judge: Honorable Judge Gail Dekreon
INTRODUCTION

This reply is organized in the same order as the Opposition and addresses each assertion contained

therein.

I. ALTHOUGH ONLY ONE OF THE SIX CAUSES OF ACTION
ASSERTED BY FAZIO INVOLVED A CONTRACT WITH AN
ATTORNEYS FEES CLAUSE, A MAJORITY OF THE DISCOVERY,
TRIAL PREPARTION AND TRIAL TIME WAS DEVOTED TO THAT
CONTRACT

As set forth in the Declaration of Donald Tenconi and Declaration of James Walsh, a more

detailed review of the itemized bill submitted with the Motion has occurred and all fees unrelated to

Plaintiff and Cross-Defendant Peter Fazio’s Page |
Reply to Swipe’s Opposition To Motion
For Aware Of Attorney’s Fees and Coststhe contract that included attorneys fees clause have been withdrawn. The remaining fees claimed by
both Mr. Tenconi and Mr. Walsh are proper and supported.

The vast majority of the overall work that occurred would have occurred even if the only
claim was for Breach of Contract under the First Cause of Action in which attorney fees should be
awarded.

The only other sums awarded under the Judgment related to the Third Cause of Action for
Conversion. The work performed related to the Third Cause of Action for Conversion was minimal.
The Conversion claim was almost completely supported primarily by the work that was required
under the First Cause of Action for Breach of Contract.

The fact that it is impossible to apportion each and every entry and the time spent between
the claims for which attorney’s fees are awarded and those which they are not does not defeat or
otherwise diminish the validity of the claims for attorney’s fees submitted herein.

Under California law, where issues are so interrelated that it is impossible to separate
them into claims for which attorney fees are and are not awardable, no apportionment need be made.
Inre Glorin, Bkrtcy. C. D. Cal. 2002, 296 B.R. 23.

Attomney 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.
Erickson v. R.E.M. Concepts, Inc. (App. 4 Dist. 2005) 25 Cal. Rptr.3d 39, 126 Cal.App.4" 1073, as
modified.

The Trial Court was within its discretion in awarding Defendant attorneys fees despite

[Plaintiff s] contention that Defendants were entitled to fees only on Contract Cause of Action and
not on Tort and RICO claims. The Trial Court could reasonably find [Plaintiff's] various claims were
inextricably intertwined, making it impractical, if not impossible, to separate a multitude of conjoined
activities into compensable or non-compensable time units. Abdallah v. United Savings Bank (App.1
Dist. 1996) 51 Cal.Rptr.2d 286, 43 Cal.App.4"

The Opposition Motion does not specifically identify any sums or services upon which this

Court could modify the original Motion. However, in order to be professional, the claim has been

Plaintiff and Cross-Defendant Peter Fazio’s Page 2
Reply to Swipe’s Opposition To Motion .
For Aware Of Attorney’s Fees and CostsCo oN HA NH SF WN

reduced based on review by Donald Tenconi and James Walsh. Further reduction is not supported by
any evidence before this Court.

As set forth in the Declaration of Donald Tenconi, 30 hours were deducted which more
than reasonably includes any and all sums that may have been included in any claims unrelated to the
contract that included the attorney’s fees. The fees claimed in the original Motion and not withdrawn

in this Reply are reasonable and proper and should be granted.

Il. ALTHOUGH ONLY PART OF ONE OF THE EIGHT CAUSES
OF ACTION INVOLVED A CONTRACT WITH AN
ATTORNEY’S FEES CLAUSE, A MAJORITY OF THE DEFENSE
FOCUSED ON THE CONTRACT THAT DID CONTAIN AN
ATTORNEY’S FEES CLAUSE

The defense of this action was primarily related to the claims of Defendant Swipe that
related to the contracts which included and attorney’s fees clause.

Very little work related to the other claims asserted in the Cross-Complaint. As set forth in
the Declaration of Donald Tenconi, 30 hours were deducted which more than reasonably includes any
and all sums that may have been included in any claims unrelated to the contract that included the
attorney’s fees.

Additionally, the Opposition Motion does not specifically identify any sums or services
upon which this Court could modify the original Motion. However, in order to be professional, the
claim has been reduced based on review by Donald Tenconi and James Walsh. Further reduction is
not supported by any evidence before this Court.

The fees claimed in the original Motion and not withdrawn in this Reply are reasonable and
proper and should be granted.

I. PLAINTIFF WITHDRAWS ITS ERRONEOUS CLAIMS FOR
ADDITIONAL OUT-OF-POCKET COSTS

The claim related to costs submitted with the original Motion have been withdrawn.
Counsel apologizes to the Court for having included these. The report is generated from a standard
report available on our computerized billing system. Prior to printing the report, counsel
inadvertently did not uncheck the box marked “costs.” There is no Opposition to denial of $8,586.92

Plaintiff and Cross-Defendant Peter Fazio’s Page 3
Reply to Swipe’s Opposition To Motion
For Aware Of Attomey’s Fees and Costsoom nd nA HA FF WN |

RVR YK YN RK YN SF SF Se ee Fe Ke Se SE
ceo AA BF BN KB SD ORDA HM F&F YN S| CO

from the claim.

IV. PLAINTIFF’S ATTORNEY’S FEES ARE NOT EXCESSIVE,
DUPLICATIVE, OR CUMULATIVE AND ALL POSSIBLY
IMPROPER CHARGES ARE WITHDRAWN IN THIS REPLY

Additionally, the Opposition Motion does not specifically identify any sums or services that
is excessive, duplicative or cumulative. There is no evidence before this Court upon which this Court
could modify the original Motion. However, in order to be professional, the claim has been reduced
based on review by Donald Tenconi and James Walsh. Further reduction is not supported by any
evidence before this Court.

A review of the time claimed by Donald Tenconi, James Walsh and Mark Harris reinforces
the position of the moving parties that the sums claimed are fair and reasonable.

Mr. Walsh claims in his Reply that he performed a total of 864.20 hours. However, Swipe
was also assisted by their in-house counsel Danny Parker. Mr. Harris does not disclose or represent to
the Court how many hours Mr. Parker spent assisting Mr. Harris in defending and prosecuting this
matter. Additionally, Swipe has support and other personnel who did assist in this matter as indicated
in their testimony at Court. The amount of additional hours possibly required from Mr. Harris had
Swipe some personnel and Mr. Parker not been available would deftly have been much greater.

Donald Tenconi claims 658.4 hours less the 79.4 hours withdrawn in this Reply for a total
of 579 hours. Mr. Walsh claims 774.4 hours less 6.3 hours he has withdrawn from his claim for a
total of 768.1 hours. Thus, Mr. Tenconi and Mr. Walsh spent a combined 1347.1 or only 482.9 hours
in excess of those admitted by Mr. Harris. The difference in the number of hours could easily have
been provided by Mr. Parker and in-house employees of Swipe.

Vv. CONCLUSION

No Opposition to any specific time entry has been submitted so the Court lacks any
evidence to deny claims to the attorney’s fees remaining after the adjustment contained in this Reply.
The attomney’s fees claimed are fair and reasonable in light of the time and effort required to prevail
in this matter and after reduction of the amount set forth in this Reply the Motion for Attorney’s Fees
should be granted in full.

Plaintiff and Cross-Defendant Peter Fazio’s Page 4
Reply to Swipe’s Opposition To Motion
For Aware Of Attorney’s Fees and CostsDATED: November 10, 2011

LAW OFFICES OF DONALD TENCONI

By

Donald Tenconi
Attorney for Plaintiff and Cross-Defendant
Peter Fazio and Cross-Defendant Money Link

TAFZWE6AS -Swipe\Motions\Motion for Attorney Fees'Reply to Swipe’s Opposition to Motion for Atty Fees & Costs, DOC

Plaintiff and Cross-Defendant Peter Fazio's
Reply to Swipe’s Opposition To Motion
For Aware Of Attorney's Fees and Costs

Page 5