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Donald A. Odell, SBN 172494 |
1480 Moraga Road, Ste..C115 :
Moraga, CA 94556
|
Telephone (925) 788-4949 t
Facsimile (925) 386-0416 :
In Pro Per
FILED.
12 APR AW A % 27
Ov
Ouse
D, WAGNER
SUPERIOR COURT OF CALIFORNIA, COUNTY CONTRA COSTA
|
NemareD JURISDICTION
DANIEL JOHN GANNON, and ROES 1-
5,
!
Plaintiff
vs.
DONALD ARMSTRONG ODELL, |
and Does 1 through 5,
Defendants.
Case No: C18-02555
CROSS-COMPLAINANT’S OPPOSITION
TO MOTION FOR ATTORNEYS FEES
Dept.: 21
Hearing Date: April 20, 2022
Time: 9:00 a.m.
Judge: Honorable Jill Fannin
AND RELATED CROSS-COMPLAINT
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IV
| TABLE OF CONTENTS
INTRODUCTION .......cccecesssseesessseesessecesseseesessssesessseccnseesensateeseees
SUMMARY OF OPPOSITION ..........0c:sccesssecesseseessnneesenaneee
SUMMARY OF FACTS ....
A. Plaintiffs Motion for Attomeys’ Fees Was Not Properly Noticed ..............
B. Odell’s Fourth Cause of Action for Negligence was Not Found to be a
SLAPP .......eeeeeseeeeee
C. The Court’s Order Strik
ing the Odell’s Fourth Cause of Action had only an
Incidental Benefit to the Gannons.............::ccceeeessseeeeeeeeteeeeennaaeeeenes
D. The Gannons’ Motion Fails to Identify any Fees Associated with Gannon’s
Challenge to Odell’s Fourth Cause of Action.
CONCLUSION........c:ccedeessceseesssesessssesecseecesssasecnsseserssssecsenseeseneeee
13
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TABLE OF AUTHORITIES
| CASES
Cabral v. Martins (2009) 177 Cal-App.4 471, 490 oo. eccec cee cce sss tes cee seceecs ester aieseeseneees vee 16
Carpenter v, Jack in the Box Corp (2007) 151 Cal.App.4th 454, 457 ....
Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.......cccccceccsessssseecesseccesseeessneeeeneenaee 9
Liu v. Moore (1999) 69 Cal. App. 4th, 745, 752-753....
Mann v, Quality Old Time Service, Inc. (2009) 139 Cal.App.4" 328, 345-346 .....cccccceeeeees 17
Moran v. Endres (2006) 135 Cal. App.4th 952, 956 ...
Sandlin v. McLaughlin (2020) 50 Cal.App.5" 805, 818.......ccccccsccessseesscesseecsetesseecsseenees 9
STATUTES"
Cal. Rules of Court, Rule 3.1110...
Code Civ. Pro. § 425.16, subd. (C).).......cecceeccceeeeeeeceueceeeccsuesseusesecceeuseuceeensnneees 9, 16
Code Civ Pro. § 426.10.....cescssessssesfoseessssssneesssesssssessssessssssssesssscesseessseccesessssscssnsessuressseecaneessneetsnes 5
OPPOSITION TO. MOTION, FOR ATTORNEYS’ FEESco ON DUA BF wWw NY YE
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Defendant and Cross-Complaint Donald A. Odell (“Odell”) presents this opposition in
response to Cross-Defendants DANIEL JOHN GANNON AND PAMELA GANNON
(“Gannons”) Motion for Attomney’s fees (“Motion”).
IL INTRODUCTION
The subject Motion to Strike was not filed for the primary purpose, or even the secondary
purpose, of benefitting the Gannons, it was filed by their attorney, Benjamin Graves (“Graves”)
to protect himself against Odell’s claims against him.
As the billing statements Mr. Graves now presents in support of this Motion for
Attorneys’ fees, show, none of the fees billed in this matter-relate to Odell’s Fourth Cause of
Action for Negligence against the Gannons; they all relate to Graves own defense of Odell’s five
causes of action against him.
At best, all that the Gannons can show in this matter is that they received an incidental
benefit from being included in Mr. Graves’s Motion to Strike and that they paid nothing in return
for that benefit. :
As is clearly shown both by the fact that Mr. Graves did not include Odell’s First Cause
of Action for Breach of Contract against the Gannons in his Motion to Strike, and by the fact that
Mr. Graves reported to the Court in his post motion Memorandum of Costs After Judgment, that
the hours billed on the Motion to Strike related to his claims alone, as the “Judgment Creditor”
and not the Gannons, was entitled to $45,081.49 in fees.
Mr. Graves may have prevailed on the SLAPP motion, but the Gannon’s did not, they
only received an incidental benefit from it, making their “victory” illusionary, and this Motion
for Attorneys’ fees should be denied.
The Declarations that Cross-Defendants have collectively filed with the court in this
action sadly make clear is that Graves used the Gannons to Fund his own attack on Odell’s
Cross-Complaint and is now using them in this Motion to backdoor his own request for fees.
The Court will-recall that Graves’s Motion to Strike attacked all five of Odell’s claims
against him, including Odell’s claim that Graves was negligent while, by among other things,
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defaming Odell to his employer, the California High-Speed Rail.
In doing so, the only claim subject to attack in the Graves’s Motion to Strike that touched
the Gannons, was Grave’s Motion to Strike the Negligence cause of action, a cause which
focused on Graves, but included the Gannons.
Had Graves truly believed that Odell’s action against the Gannons was a SLAPP, he
would have included Odell’s First Cause of Action for Breach of Contract, as well as the
Negligence cause of action. He did not, because he knew that Odell’s Cross-Complaint against
the Gannons was not a SLAPP. :
II. SUMMARY OF OPPOSITION
From the outset, this Motion was not properly noticed and should be denied. without
further consideration.
Even if the court were to overlook the procedure defects of this Motion, nothing in the
Motion, or the prior ruling on the Motion to Strike supports the Gannons’ claim for attorneys’
fees.
As the record and evidence show, the Gannons received only an incidental benefit from
the Motion to Strike and are therefore not the “prevailing parties” for purposes of this Motion.
It is equally clear that the fees the Gannons now claim cannot be tied to any work done
by Graves or his staff on the Gannons behalf relating to the-Negligence cause of action.
For those reasons, this Motion must be denied.
Ill. SUMMARY OF FACTS
On December 19, 2018, Daniel Gannon sued Odell for Professional Negligence, Breach
of Fiduciary Duty, and Breach of Contract arising out of a'written retainer agreement for legal
services between Odell, Daniel Gannon, and Daniel’s wife Pamela Gannon (the “Contract”)
As required of him by California Code of Civil Procedure, Section 426.10, on January 22,
2019, Odell cross-complained against Daniel and Pamela Gannon for Breach of Contract and
Negligence, this based on Odell’s reasonable belief that they had been negligent in assisting and
authorizing Graves to publish various defamatory statements against Odell, including those
published to Odell’s employer, the California High-Speed Rail Authority.
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In filing that Cross-Complaint, Odell also named Graves in the Cross-Complaint, alleging
that Graves had also been negligent in presenting false statements to the Gannons about Odell’s
work, that he had done so to induce the Gannons to substitute Graves in place of Odell.as their
attorney, that by publishing false statements about him to the State Bar of California and the
High-Speed Rail Authority, Graves had intentionally interfered with Odell’s contractual
relationship with the Gannons, that he had intentionally interfered with Odell’s prospective
economic advantages with the Gannon’s and others by defaming him and disparaging the quality
of Odell’s work, and that Graves had intentionally defamed Odell when publishing knowingly
false statements about Odell to others, including Odell’s employer, the California High-Speed
Rail Authority.
On April 19, 2019, Graves filed a Special Motion (“Motion to Strike”) to Strike Odell’s
claims against him, including Odell’s Second, Third, Fifth and Sixth Causes of Actions against
him, and the Odell’s Fourth Cause of Action for Negligence against both he and the Gannons.
The Motion to Strike was heard by this Court on June 5, 2019, and the Court’s Decision
on Submitted Motion to Strike (Anti-SLAPP) causes of Action by Plaintiff's (“Decision”) was
filed and served on the Parties on July16, 2019.
In that Decision, this Court noted that “the only claim upon which Odell has shown a
probability of prevailing is the defamation claim against Odell (sic) based upon the letter to
High-Speed Rail Authority. Odell has not shown how such conduct can be a basis for
negligence. Nor has he offered evidence that would implicate the Gannons in this claim.
Therefore, the Court finds that Odell has not carried his burden of showing a probability
of prevailing on negligence and that claim is stricken.” (Decision, p. 9, Ins. 9 — 16)
Notably, although striking the Negligence cause of action, the Court made no findings,
that Odell’s act of including his Negligence cause of action in his Cross-Complaint had been
done in bad faith, that the Cross-Complaint was a SLAPP against the Gannons, and/or it, or the
Negligence cause of action was frivolous. To the contrary, the Court implied that they were not,
stating only that Odell had “not carried his burden of showing a probability of prevailing on
negligence.” (Decision, p. 9, Ins. 15 — 16)
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The Court continued in its Decision by informing the parties that while the Court “will
consider a request for attorneys fees through a separate motion brought by the Gannons” as
“Graves represented himself in this motion and may not recover fees for the work. (Taheri Law
Group, supra, 160 Cal.App.4"" 482, 494.) In this situation, any request for fees by the Gannon’s
must include a sufficiently detailed explanation of the work related to the negligence claim
against the Gannons as compared to the work done on all of the other claims.” (Decision, p. 9,
Ins. 19 — 25)
Apparently disregarding that cautionary note, on August 20, 2019, Graves filed a
Memorandum of Costs with this Court in which he represented himself to the Court as the
“Judgement Creditor” for purposes of the Motion to Strike and claimed that as the Judgment
Creditor, he was entitlement to $45,081.49 in fees and costs as the prevailing party on the
Motion to Strike. (see Exhibit “A” to the Declaration of Donald Odell in Support of Opposition
to Motion for Attorneys’ Fees (“Odell Dec.”)
Notably, the $45,081.49 that Graves claimed as owed to him was $8,81 1,49 more than
the $36,270.00 that the Gannons had previously claimed that they had been billed for the
Motions to Strike when presenting their April 22, 2019 “Déclaration of Daniel John Gannon Fr.
and Pamela Elliott Gannon in Support of Special Motion to Strike that the Motion to Strike”
(“Gannon Dec”) to this Court. (See Exhibit “B”, § 19 to Odell Dec.)
That amount was, in turn $7,525.00 more than the $28,745.00 that Mr. Graves’s Office
now represents to this Court was the entire cost of Motion to Strike cost (see Declaration of K.
Kasey Corbit in Support of Cross-Defendants’ Motion for ‘Attorneys? Fees (“Corbit Dec. 6).
After considering these Declarations and Graves’s Memorandum of Costs, the only
conclusion that can be drawn is that someone in the Cross-Defendants’ camp is not telling the
truth, and that none of them know what, if any fees were charged by Graves to the Gannons
actually applied to the Motion to Strike for the limited purpose of Negligence cause of action
against the Gannons.
, In fact, even after a most careful review of Mr. Graves’s billing records, this writer
cannot determine whether or not any of the fees included in the various “Exhibits” to Ms.
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Corbit’s Declaration apply to that cause of action, but what is made clear, the vast, vast majority
of the fees applied only to Odell’s claims against Graves. /
In short, the Gannon’s present before this Court asking for an award of fees, without a
properly noticed motion, with no finding by this Court that’Odell’s Negligence cause of action
was a SLAPP, without a basis on which this Court should consider the Gannons to be the
“prevailing party” on the Motion to Strike, and without any evidence documenting any amount
of fees to which they would be entitled if this Court found in their favor on this Motion.
The Gannon’s Motion for Attorneys’ fees is therefore unsupported and unsupportable and
should now be denied with prejudice.
IV. ARGUMENT IN OPPOSITION TO MOTION
A. Plaintiffs Motion for Attorneys’ Fees Was Not Properly Noticed
California Rules of Court, Rule 3.1110 state in relevant part as:
Rule 3.1110. General format
a) Notice of motion
A notice of motion must state in the opening paragraph the nature of the order
being sought and the grounds for issuance of the order.
(b) Date of hearing and other information
The first page of each paper must specify immediately below the number of the
case:
(1) The date, time, and location, if ascertainable, of any scheduled hearing and
the name of the hearing judge, if ascertainable;
On March 9, 2022, Nicole M. Alioto, served Cross-Defendants’ Motion for Attorneys’
Fees and supporting papers, including “Cross-Defendant’s Notice of Motion for Attorneys Fees
Upon Granting of Special Motion to Strike (ANTI-SLAPP) cause of Action Four” on Odell by
“Electronic Mail”.
True and Correct Copies of the cover pages for Cross Defendants’ Notice of Motion for
Attorneys Fees Upon Granting of Special Motion to Strike (Anti-SLAPP) Cause of Action Four”
and supporting documents are collectively attached to the Declaration of Donald A. Odell in
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Support of Cross-Complainant’s Opposition to Motion for Attorneys’ Fees (“Odell Dec”) as
Group Exhibit “C” and incorporated by this reference as though fully set forth herein.)
The Moving Papers, including Cross-Defendant’s Notice of Motion, failed to include the
date, the time, or the location of the hearing, making the notice ineffectual for purposes of Rule
3.1110 and the Motion must therefore be denied based on Cross-Defendants’ failure to properly
notice it.
B. Odell’s Fourth Cause of Action for Negligence was Not Found to be a SLAPP
As explained by the Court in Ketchum v. Moses (2001) 24 Cal.4th 1122. "In any action
subject to [the special motion to strike], a prevailing defendant ... shall be entitled to recover his
or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is
solely intended to cause unnecessary delay , the court shall award costs and reasonable attorney's
fees to a plaintiff prevailing on the motion, pursuant to [Code of Civil Procedure] [s]ection
128.5." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, Code Civ. Proc., § 425.16, subd. (c).)
For purposes of Section 128.5, “Frivolous” means (A) totally and completely without
merit or (B) for the sole purpose of harassing an opposing party." Carpenter v, Jack in the Box
Corp (2007) 151 Cal-App.4"" 454, 457
Before attorneys’ fees can be awarded, court must conclude that a suit, or in this case, a
cause of action isa SLAPP. This is because a defendant:is entitled to fees under section 425.16,
subdivision (c) as a right, if and only if the suit or cause of action was as SLAPP (see Liu v.
Moore (1999) 69 Cal.App.4"" 745, 752-753).
A failure to sufficiently plead a cause of action does not make that cause of action, or the
case underlying it retaliatory, or, for that matter, an effort to silence protected speech, as required
under Section 426.16 (see Sandlin v. McLaughlin (2020) 50 Cal.App.5" 805, 818).
Here, nothing in Court’s Decision states or even suggests that Odell’s Fourth Cause of
Action for Negligence was a SLAPP or intended to silence protected speech.
In its Decision, this Court concluded the following in relevant part that:
“It is clear that many of the statements in the letter to the High-Speed Rail
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Authority would constitute a claim for defamation if any of the statements were
false.” (Decision, pg. 7, Ins, 20 — 23.)
“The negligence claim is based on the Gannons and Graves having a duty to
make truthful statements about Odell. The claim does not specify which
statements it is based on and as such, it appears that his claim is based on all
prior statements alleged in the complaint.” (Decision, pg. 8, Ins. 25— 27, pg.9, In.
1)
The only claim upon which Odell has shown a probability of prevailing is the
defamation claim against Odell based upon the letter to the High-Speed Rail
Authority. Odell has not shown how such conduct can be the basis for
negligence. Nor has he offered evidence that would implicate the Gannons in
this claim. (Decision, pg. 9, Ins. 9 — 13.)
Therefore, the Court finds that Odell has not carried his burden of showing a
probability of prevailing on negligence and that claim i is stricken.” (Decision,
pg. 9, Ins. 15 -16.) :
In rendering that Decision, the Court made no finding that the Negligence claim was a
SLAPP, that it was filed in bad faith, that it was frivolous, or that is was solely (or incidentally)
intended to cause unnecessary delay, findings that are necessary before the Gannons could be
entitled to recover attorneys frees in any amount.
To the contrary, the Court found simply that Odell, had not borne his burden of showing a
probability of prevailing on the negligence claim. (see Decision, pg. 9, Ins. 15 — 16.)
That finding is not enough to base an award for attorneys’ fees on.
The Court, having not found that Odell’s Negligence cause of action was a SLAPP, the
Gannons are not entitled to recover attorneys’ fees in this matter and the Motion should be
denied.
C. The Court’s Order Striking the Odell’s Fourth Cause of Action had only an
Incidental Benefit to the Gannons.
Graves brought the SLAPP motion challenging five of Odell’s six causes of action
against him, including the combined negligence claim against both he and the Gannons.
While Graves prevailed on five of the six, he was representing himself and therefore, as
pointed out by this Court in the Decision, “Graves represented himself and may not recover fees
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for the work. (Taheri Law Group, supra, 160 Cal.App.4" 482, 494.)” (Decision, p.9, Ins. 21 —
23)
On the other hand, Odell brough two causes of action against the Gannon’s, the First
Cause of Action, or as the Graves’s billing records refer to it “1st COA against Gannons” for
Breach of Contract, and the combined Fourth Cause of Action against the Gannons and Graves
for Negligence.
While Graves prevailed on his Motion to Strike the Negligence cause of Action, and his
work may have had a corollary benefit to the Gannon on the Negligence cause of action, that
benefit cannot be reasonably considered to have been the principal purpose or effect of Motion to
Strike, the benefit was, at best, incidental to the Gannons’ case.
It also cannot be said that the Gannons achieved any practical gain from the Motion to
Strike, because they gained no notable benefit from it justifying a finding that they “prevailed”
on the Motion to Strike, without which, an award of attorneys’ fees is not justified.
Odell’s case against the Gannon’s remains at issue, the same facts continue to control the
case now as they did before the Motion to Strike, the same parties remain in the case, and the
facts remain the same. The Motion to Strike did not limit discovery, reduce Odell’s damages
against the Gannons, narrow the scope of the litigation, or alter the settlement posture. The
Gannons still face the same evidentiary hurdles in their defense against Odell’s case, and the
same risks of an adverse judgment being rendered against them in favor of Odell, as they did
before the Motion to Strike.
Based on similar facts, the Court in Moran v. Endres (2006) 135 Cal-App.4th 952,
concluded that when a defendant cannot in,any realistic sense be said to have been successful;
fees need not be ‘awarded. Defendants'here sought to dismiss the case against them, but instead
obtained a ruling which in every: practical sense meant nothing;-That does not-entitle them.to
fees: Id @ 956.
In his concurring ‘option, in that case, Justice Mosk observed that:
There-appéars to be a caveat expressed ina United States Suprethe Court case
involving an "analogous" statute — title 42 ‘United States Code section 1988. The
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court in Hensley v. Eckerhart (1983) 461 U.S. 424, 433 [76 L.Ed.2d 40,'103 S.Ct.
1933] said,."° plaintiffs may be considered "prevailing partiés" for attorney's fees
purposes if they succeed on afiy significant issue in litigation which achieves
some of the benefit arties sought in:-bringing suit." (Italics added.) (This was
cited in. Computer? , Supra, 93. Cal.App.4th at'p. 1019.) Similarly,'as noted in
ComputerXpress, in Los Angeles Times v. Alameda Corridor Transportation
Authority (2001) 88 Cal-App.4th 1381, 1392.[.107 Cal.Rptr.2d 29], applying the
attorney fees provision of the California Public-Records Act (Govt. Code, § 6259,
subd, (d)), "the court acknowledged the possibility that in some cases a plaintiff
might obtain documents that are so minimal or insignificant as to justify a finding
that it did not prevail." ( ComputerXpress, supra, 93 -Cal.App.4th at p. 1020.)
Here, the successful motion to strike was so insignificant that defendants should
not be. viewed as prevailing defendants for purposes of an attorney fee award. For
that reason I concur. Moran, supra,.135 Cal.App.4th 957. (emphasis added)
To borrow language from.the Moran Court, “to be blunt”, .Graves accomplished nothing
for the Gannons by including them in-his Motion to Strike “except that plaintiffs were put to the
cost of defending the motion.:Thé possible recovery against defendants did not change. The
factual allegations which defendants had to defend did not ‘change: The work involved in trying
the case did not change. Defendanis' burden concerning their jurisdictional defense did not
change. The case was essentially. the same after the ruling on the special motion'to-strike as it
was before. The results of the motion were minimal and insignificant, fully justifying the court's
finding that defendants should’not recover fees.” Moran supra, 135 Cal.App.4" at 955.
As in Moran, the Gannon’s gained nothing from having the Negligence cause of action
stricken. Their victory was illusionary, the only. person. who benefited from the Motion to Strike
was Graves, who, by adding the Gannons to his Motion to Strike, was.able to bill them for his
motion and who can now attempt to back-door his claim to-recover his own fees and costs, by
shifting those fees to the Gannons.
The Gannons may be considered to be a “pievailing” party on the Negligence cause of
action, but that hold that label in name only because there is no practical effect or benefit
attached to it:: The Gannons “victory” was purely illusory and entitled them nothing of value or
benefit and they should now be.rewarded for further delaying this matter and increasing its costs
to-the Court by’ filing this unsupportable Motion. The: Gannon’s motion for attorneys’ fees
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should therefore be denied:
The Gannons’ Motion Fails to Identify any Fees Associated with Gannon’s
Challenge to Odell’s Fourth Cause of Action
The Gannon’s offer the Declarations of Benjamin C. Graves and K. Kasey Corbit in
support of this Motion.
Mr. Graves Declaration beyond summarizing his “accomplishments”, is notable in that he
“declares” that the Attorneys fees claimed in this Motion were “billed to the client and necessary
to prove the claims.” (see Declaration of Benjamin C. Graves In Support of Motion for
Attorneys’ Fees, {2 (“Graves Dec.”), a statement that is directly contradicted by the
representations contained in his August 20, 2019 Memorandum of Costs (Odell Dec, Exhibit
“A”), and disputed by his own billing invoices. .
For her part, Ms. Corbit, while attaching a number of billing records to her Declaration,
also confirms that the fees reflected “were billed to the client and necessary to prove the claims.”
(see Declaration of K. Kasey Corbit In Support of Motion for Attorneys’ Fees, §2 (“Corbit
Dec.”) also neglects to identify what, if any of the fees, related to the limited scope of the Motion
to Strike that pertained to the Negligence cause of action against the Gannons, or why those fees
are different than what Mr. Graves claimed for himself in August of 2019.
Comparing the two Declarations, it is interesting to note that, perhaps by error, Mr.
Graves and Ms. Corbit both use of the plural for “claims” in their Declarations. While that may
have been done to ensure that this Court knows that the fees charged to the Gannons covered the
costs to challenge all five of Odell’s Causes of Action against Graves, not just the Fourth Cause
of Action for Negligence, at issue here, it is equally notable that neither Mr. Graves’s nor Ms.
Corbit’s statements in their Declarations support that.
The more logical reading of the Declarations results in the conclusion that both Mr.
Graves and Mr. Corbit want this Court to award the Gannons “$18,971.70” of the fees Mr.
Graves incurred when representing himself in the Motion to Strike, so that Graves can use those
fees to off-set the fees that he billed to the Gannons in March through June of 2019 to prepare
OPPOSITION TO MOTIO| FOR ATTORNEYS’ FEES) UL)
and argue his own Motion to Strike.
Support can be drawn for that conclusion from the fact that Graves attempted to recover
$45,081.49 in fees for himself after the Motion to Strike, and that the Gannons apparently never
paid Graves for any of them.
In her Declaration, Ms. Corbit now represents to the Court that “the total bill for work on
the anti-SLAPP motion and its related pieces was only $28,745.00.” Of which, she claims, the
Gannons are entitle on only two-thirds as “applicable and necessary to litigating the validity of
the claims against the Gannons” (Id.) but she offers no breakout of the fees to support that
conclusion. (Corbit Dec. 6)
For their part, the Gannons stated in their April 22, 2019, Declaration that they had
“incurred the following legal fees to strike this frivolous motion:
a. Fees for Special Motion to Strike the Fourth Cause of Action (Negligence):
$29,450.00; and
b. Fees for Special Motion to Strike the Second, Third, Fifth, and Sixth Causes of
Action: $6,820.00
c. We anticipate an Opposition , and Reply Brief and hearing in addition to this
expense.” ‘ :
(see Gannon Dec. § 19)
Mr. Graves, on the other hand, reached even higher when he declared to the Court on
August 20, 2019, that the cost for the Motion to Strike was $45,081.49 and that he was
individually entitled to recovery all of that amount as the “judgement creditor” (Graves
Memorandum.{7 & 4)
Taking these sworn “declarations” together, it becomes more than clear that at least three
of the four declarants have misrepresented to this Court how much the Motion to Strike actually
cost, and who paid that cost.
The Gannons say that they were billed by Graves $36,270.00 ($29,450.00 + $6,820.00)
for a Motion to Strike that Ms. Corbit states only cost $28,745.00 in total and for which the
Gannon’s were only responsible for paying $18,971.10.
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Mr. Graves says that the Motion to Strike cost $45,081.49 and that he is the only one
entitled to recover that amount. /
In her Declaration, Ms. Corbit is now essentially telling the Court that the Gannons
falsely represented the amount of fees billed to them for the Motion to Strike when they filed
their Declaration and that Graves interitionally misrepresented the amount of fees incurred for
the Motion to Strike in his August 20, 2019, Memorandum of Costs.
Given the disparities between the dollars claimed by the various parties and attorneys,
two things are very clear, Graves and his office dramatically overbilled the Gannons for the
Motion to Strike and no one knows how much time it took to Graves to include the Gannons in
his Motion to Strike for purposes of the Negligence cause of action.
This second fact that is made clear is that Graves’s billing records are not detailed
enough to determine what aspect of Graves’ Motion to Strixe each billing entry applied to, let
alone which related to Odell’s Negligence cause of action against the Gannons.
According to those billing records, between March 1, 2019, and March 28, 2019,
Graves’s staff billed the Gannons $7,316.25 in fees. Of that amount, the only fee related to
“claim 4” was an unstated amount billed for Ms. Corbit to “Draft demurrer meet and confer letter
(claims 4 and 5). . .” (see Corbit Dec. Exhibit 1, “3/28/19” entry)
Between April 1, 2019, and April 29, 2019, Graves and his team billed the Gannons
$19,567.16 for work, apparently on the Anti-SLAPP moticn (plus and additional “$12,7474.48”
for a “Previous [undefined] balance], of which not a single included entry mentioned Odell’s
Fourth Cause of Action. (see Corbit Dec. Exhibit 1, 4/2/201 9, 4/3/2019, 4/9/2019, 4/12/2019,
4/16/2019 and 4/17/2019 entries),
In June of 2019, Graves and his team billed the Gannons an additional $9,615.60 in
current fees, and an additional $37,361.09 fora “Previous Balance”.
Of the “Current Charges billed on the June 2019 invoice, the only identifiable amount
billed by Graves relating to “COA 4” was the second of the two June 26, 2019, billing entries by
Graves.
That entry was included within the 7.10 total hours:Graves billed to the Gannons for
OPPOSITION TO. MOTIONFOR ATTORNEYS’ FEESoem YN HW BF BN
RN NY YN YN NNN NY Be Be Bee Be ewe eB Be eB
eo QI A A BF YWw NH FF SO wMe A DAA RF WYN SF Ss
Ne
work on the day the Motion to Strike was heard, and included “Transport time to Contra Costa
County Superior Court for Argument on Gannon COA 1” and “Attentiono (sic) Odell letter
regarding grounds for objection top (sic) tentative ruling; legal rexserach (sic) COA 4 items
(duty related to invoices sound in contract not tort; preparation for hearing and argument and
hearing at Contr (sic) costa County Superior.” the “1 COA against Gannon. (see Corbit Dec.
Exhibit 1, 6/26/2019 entries).
Graves’s two June 6, 2019, entries are particularly impressive in that he apparently billed
the Gannons for 7.1 hours of work before he even arrived at the Court for the 9:00 a.m. hearing
on the Motion to Strike.
Corbit’s “Exhibit 2” to her Declaration includes two billing statements. The first, for
work between July 16, 2019, the second, for work between October 19, 2021 and February 28,
2022. (Corbit Dec. Exhibit 2)
According to the July 2019 invoice, Graves billed the Gannons for $372.30 for “Current
Charges” incurred in July of 2019, and an additional $46,976.69 for a Previous Balance. None of
which was identified as applicate to the Negligence cause of action. (Corbit Dec., Exhibit 2)
The July 2019 statement is particularly intriguing because the “Previous Balance” of
$46,976.69 approximates the amount Graves told the Court on August 20, 2019, that he was
owed for his work on the Motion to Strike. (see Graves Memorandum, §1)
The remaining five months of billing entries included in Ms. Corbit’s Exhibit 2 all appear
to relate to this matter generally and not to the Negligence cause of action at issue here.
It is well settled that "a defendant who brings a successful special motion to strike is
entitled only to reasonable attorney fees, and not necessarily to the entire amount requested.
Cabral v. Martins (2009) 177 Cal.App.4th 471, 490
Only those attorney fees related to the SLAPP, motion, in this this case, only those
related to the limited issue of the Negligence cause of action against the Gannons, may be
recoverable under C.C.P§ 425.16(c).
A defendant is not to obtain, as a mater of right, his or her attorneys’ fees incurred on
merely because the attorney worked on multiple overlapping claims. The defendant must show
OPPOSITION TO MOTION {FOR ATTORNEYS’ FEES0 Om ND HW F&F WN
NY NRN YN YN NR NN Be ee Be ee Be Be Be Be
oN A A BF YH NH &§ SGD we IN DAH BF BW YH KF
that the fees claimed were reasonable, and that they were related to the complaint, or in this case,
the cause of action for which the Motion to Strike was addressed. (see Mann v. Quality Old Time
Service, Inc. (2009) 139 Cal.App.4"" 328, 345-346)
The Gannons have failed to offer any evidence of what, if any fees were charged to them
related to the narrow issue of the Negligence cause of action, or what the reasonable value of
those fees was.
What evidence they did produce came in the form of Ms. Corbit’s Declaration, which at
best, suggest only that on “3/28/2019” Ms. Corbit worked ¢o “Draft demurrer meet and confer
letter (claims 4 and 5)”. No breakout was provided separating that work from the other work in
that “block” entry, and no explanation was given as to why work on “demurrer meet and confer
letter” is recoverable as fees in a SLAPP motion. (see Corbit Dec, Exhibit 1, 3/28/2019 entry)
The only other entry that this writer could find in the submitted billing records relating to
the Negligence cause of action was a June 26, 2019 entry by Mr. Graves in which he gave some
undefined “attentiono (sic) Odell letter regarding grounds for objection top tentative rule; legal
rexserch (sic) COA 4 items (duty related t invoices sound in contract, not tort;. . . “ for which he
billed the Gannons 4.1 hours, again not bothering to break ‘out what, if any of that time, related to
the Negligence claim against the Gannons, rather than himself. (Corbit Dec., Exhibit 1,
6/26/2019 entry)
In all, nothing in the Gannon’s moving papers offered in support of this Motion suggests,
that the Gannon’s were billed for any work on the Negligence cause of action, let alone how that
work differed from work that Graves and his staff did on the Gannon’s behalf when preparing
and filing Graves’s Motion to Strike.
In fact, all that is shown by the records is that as of June 26, 2019, when this motion was
heard, all of the work done on the Motion to Strike was for Graves’s sole benefit and that the
Graves’s bill to the Gannons for that work has never been paid.
Even Ms. Corbit’s suggestion that if any fees are found by this Court to be tied to work
on the Gannon’s behalf related to the Motion to Strike the Negligence claim, those fees should
be discounted by one-third (Corbit Dec. 6), is unsupportable.
OPPOSITION TO MOTION FOR ATTORNEYS’ FEESom IN DH BF WN
MN NY NY NY NY N N NY HN ewe ee BE RE Ee
oN A A KF Bw Yd F=F SD we AIA DH BF BW NH SF
The Motion to Strike addressed 5 causes of action, only one-half of one of them impacted
the Gannons. If any fees are found to be recoverable by the Gannons, those fees need to be
reduced by four-fifths to reflect the time Graves dedicated to striking the other four claims
against himself, and then again reduced by a further one-half to account for the Gannon’s
collective shared interest with Graves in the outcome of the Motion to Strike as it applied to the
limited issue of the Negligence cause of action.
Taken in total, The Gannons have failed to present any evidence to support a finding of
entitlement to Attorneys fees in this matter, and even less evidence to establish what if any
amount of fees they incurred because of the Motion to Strike.
The Gannons Motions should therefore be denied.
Iv. CONCLUSION
This Motion was not properly noticed, there has been no finding made by the Court that
Odell’s Negligence cause of action against the Gannons amounted to a SLAPP, the Gannons
achieved no appreciable benefit from the Motion to Strike, and therefore are not the “prevailing
parties” for purposes of an award of attorneys’ fees in this matter, and they have offered no
evidence that they paid any fees to Graves while riding on his “coat tail” for purposes of the
Motion to Strike the Negligence cause of action.
Therefore, having failed to establish a basis on which this Court can fashion an award for
attorneys’ fees that is reasonably related to Odell’s Negligence claim against them, this Motion
should be denied in its entirety.
Respectfully submitted,
Date: April 8, 2020
By: Qso AQo22 6
Donald A. Odell, in pro per.
OPPOSITION TO MOTION FOR ATTORNEYS’ FEESCem YN DH BF WN
NY N NY N NN N DN NY Bee Be Be Be Be Be Be eB
oN DAW BF BN F&F SFO ODA DH BF BH KH S
PROOF OF SERVICE
I, Erika Pieger, declare:
I am employed in Contra Costa County, State of California, am over the age of eighteen’
years, and not a party to the within action. My business address is 1480 Moraga Road, Ste.
C115, Moraga, CA 95466. I am readily familiar with the business practice for collection and
processing of correspondence for mailing with the United States Postal Service and/or other
overnight delivery. Under overnight delivery practice, all mailings are deposited in an
authorized area for pick-up by an authorized express service courier the same day it is collected
and processed in the ordinary course of business. On the date set forth below, I served the within:
OPPOSITION TO MOTION FOR ATTORNEYS’ FEES
on the parties in this action by transmitting a true copy thereof by electronic, with an copy sent
by U.S. Mail to: "
BENJAMIN C. GRAVES K. KASEY CORBIT
LAW OFFICES OF BENJAMIN C. GRAVES LAW OFFICES OF BENJAMIN C. GRAVES
1100 Sir Francis Drake Blvd., Suite 1 1100 Sir Francis Drake Blvd., Suite 1
Kentfield, CA 94904 Kentfield, CA 94904
Electronic Mail Address: Electronic Mail Address: kasey@marinlitigation.com
benjamin@marinlitigation.com
[X] (By Electronic Mail) I caused each document to be served by electronically mailing the
same to the attorneys and/or parties noted above .
{[] (@y Facsimile) The above-referenced document(s) was transmitted by facsimile
transmission to the number(s) shown and the transmission was reported as complete and
without error.
[X] (By US. Mail) I caused a copy of each document to be served by depositing same, with
postage thereon fully prepaid, to be placed in the United States Postal Service in the
ordinary course of business at Orinda, California.
[] Gy Personal Service) I caused each such envelope to be delivered by hand to the persons’
named above.
I declare under penalty of perjury that the foregoing is.true and correct and that this declaration
was executed on April 8, 2020, at Orinda, CA
Preview
Cm IN DAW eR wD NY Ye NHN MY YH N NY N HN YN Ne eee oN DW BF YW Yo —§ SD wD IY DH BF WHY YS Donald A. Odell, SBN 172494 | 1480 Moraga Road, Ste..C115 : Moraga, CA 94556 | Telephone (925) 788-4949 t Facsimile (925) 386-0416 : In Pro Per FILED. 12 APR AW A % 27 Ov Ouse D, WAGNER SUPERIOR COURT OF CALIFORNIA, COUNTY CONTRA COSTA | NemareD JURISDICTION DANIEL JOHN GANNON, and ROES 1- 5, ! Plaintiff vs. DONALD ARMSTRONG ODELL, | and Does 1 through 5, Defendants. Case No: C18-02555 CROSS-COMPLAINANT’S OPPOSITION TO MOTION FOR ATTORNEYS FEES Dept.: 21 Hearing Date: April 20, 2022 Time: 9:00 a.m. Judge: Honorable Jill Fannin AND RELATED CROSS-COMPLAINT OPPOSITION TO MOTION FOR ATTORNEYS’ FEES0 ON DW FF WN NY N NY N NN NN Nw a a ee oN DA A BF HwNYH F&F SO we AR AA RF WN FB SO il. Iv. IV | TABLE OF CONTENTS INTRODUCTION .......cccecesssseesessseesessecesseseesessssesessseccnseesensateeseees SUMMARY OF OPPOSITION ..........0c:sccesssecesseseessnneesenaneee SUMMARY OF FACTS .... A. Plaintiffs Motion for Attomeys’ Fees Was Not Properly Noticed .............. B. Odell’s Fourth Cause of Action for Negligence was Not Found to be a SLAPP .......eeeeeseeeeee C. The Court’s Order Strik ing the Odell’s Fourth Cause of Action had only an Incidental Benefit to the Gannons.............::ccceeeessseeeeeeeeteeeeennaaeeeenes D. The Gannons’ Motion Fails to Identify any Fees Associated with Gannon’s Challenge to Odell’s Fourth Cause of Action. CONCLUSION........c:ccedeessceseesssesessssesecseecesssasecnsseserssssecsenseeseneeee 13 OPPOSITION TO MOTION, FOR ATTORNEYS’ FEESOo Oe IN DH BF WN NR YN KR NN Be Be we we Be Be Be ese eB BRRRRBBRHEBSBRWREAESEHRES TABLE OF AUTHORITIES | CASES Cabral v. Martins (2009) 177 Cal-App.4 471, 490 oo. eccec cee cce sss tes cee seceecs ester aieseeseneees vee 16 Carpenter v, Jack in the Box Corp (2007) 151 Cal.App.4th 454, 457 .... Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.......cccccceccsessssseecesseccesseeessneeeeneenaee 9 Liu v. Moore (1999) 69 Cal. App. 4th, 745, 752-753.... Mann v, Quality Old Time Service, Inc. (2009) 139 Cal.App.4" 328, 345-346 .....cccccceeeeees 17 Moran v. Endres (2006) 135 Cal. App.4th 952, 956 ... Sandlin v. McLaughlin (2020) 50 Cal.App.5" 805, 818.......ccccccsccessseesscesseecsetesseecsseenees 9 STATUTES" Cal. Rules of Court, Rule 3.1110... Code Civ. Pro. § 425.16, subd. (C).).......cecceeccceeeeeeeceueceeeccsuesseusesecceeuseuceeensnneees 9, 16 Code Civ Pro. § 426.10.....cescssessssesfoseessssssneesssesssssessssessssssssesssscesseessseccesessssscssnsessuressseecaneessneetsnes 5 OPPOSITION TO. MOTION, FOR ATTORNEYS’ FEESco ON DUA BF wWw NY YE NN NN NY Bee Be Be we ewe ew ew BNRREBBEBR ESV BEBE AS Defendant and Cross-Complaint Donald A. Odell (“Odell”) presents this opposition in response to Cross-Defendants DANIEL JOHN GANNON AND PAMELA GANNON (“Gannons”) Motion for Attomney’s fees (“Motion”). IL INTRODUCTION The subject Motion to Strike was not filed for the primary purpose, or even the secondary purpose, of benefitting the Gannons, it was filed by their attorney, Benjamin Graves (“Graves”) to protect himself against Odell’s claims against him. As the billing statements Mr. Graves now presents in support of this Motion for Attorneys’ fees, show, none of the fees billed in this matter-relate to Odell’s Fourth Cause of Action for Negligence against the Gannons; they all relate to Graves own defense of Odell’s five causes of action against him. At best, all that the Gannons can show in this matter is that they received an incidental benefit from being included in Mr. Graves’s Motion to Strike and that they paid nothing in return for that benefit. : As is clearly shown both by the fact that Mr. Graves did not include Odell’s First Cause of Action for Breach of Contract against the Gannons in his Motion to Strike, and by the fact that Mr. Graves reported to the Court in his post motion Memorandum of Costs After Judgment, that the hours billed on the Motion to Strike related to his claims alone, as the “Judgment Creditor” and not the Gannons, was entitled to $45,081.49 in fees. Mr. Graves may have prevailed on the SLAPP motion, but the Gannon’s did not, they only received an incidental benefit from it, making their “victory” illusionary, and this Motion for Attorneys’ fees should be denied. The Declarations that Cross-Defendants have collectively filed with the court in this action sadly make clear is that Graves used the Gannons to Fund his own attack on Odell’s Cross-Complaint and is now using them in this Motion to backdoor his own request for fees. The Court will-recall that Graves’s Motion to Strike attacked all five of Odell’s claims against him, including Odell’s claim that Graves was negligent while, by among other things, OPPOSITION TO MOTION, FOR ATTORNEYS’ FEESoO YN DH BF BW NY NY N NY NY NY N N NY NY eB RB oR OR Re ee ec IA Dw PRY YH |= SO Ww I DA HW BP WN EF SOS defaming Odell to his employer, the California High-Speed Rail. In doing so, the only claim subject to attack in the Graves’s Motion to Strike that touched the Gannons, was Grave’s Motion to Strike the Negligence cause of action, a cause which focused on Graves, but included the Gannons. Had Graves truly believed that Odell’s action against the Gannons was a SLAPP, he would have included Odell’s First Cause of Action for Breach of Contract, as well as the Negligence cause of action. He did not, because he knew that Odell’s Cross-Complaint against the Gannons was not a SLAPP. : II. SUMMARY OF OPPOSITION From the outset, this Motion was not properly noticed and should be denied. without further consideration. Even if the court were to overlook the procedure defects of this Motion, nothing in the Motion, or the prior ruling on the Motion to Strike supports the Gannons’ claim for attorneys’ fees. As the record and evidence show, the Gannons received only an incidental benefit from the Motion to Strike and are therefore not the “prevailing parties” for purposes of this Motion. It is equally clear that the fees the Gannons now claim cannot be tied to any work done by Graves or his staff on the Gannons behalf relating to the-Negligence cause of action. For those reasons, this Motion must be denied. Ill. SUMMARY OF FACTS On December 19, 2018, Daniel Gannon sued Odell for Professional Negligence, Breach of Fiduciary Duty, and Breach of Contract arising out of a'written retainer agreement for legal services between Odell, Daniel Gannon, and Daniel’s wife Pamela Gannon (the “Contract”) As required of him by California Code of Civil Procedure, Section 426.10, on January 22, 2019, Odell cross-complained against Daniel and Pamela Gannon for Breach of Contract and Negligence, this based on Odell’s reasonable belief that they had been negligent in assisting and authorizing Graves to publish various defamatory statements against Odell, including those published to Odell’s employer, the California High-Speed Rail Authority. OPPOSITION TO. MOTION FOR ATTORNEYS’ FEESoe YN DH BF WN boN Yb NN NNN Se Be Be eB ewe Be eB eS RBRNRRRBBRRB CRRA DBREBHTrS In filing that Cross-Complaint, Odell also named Graves in the Cross-Complaint, alleging that Graves had also been negligent in presenting false statements to the Gannons about Odell’s work, that he had done so to induce the Gannons to substitute Graves in place of Odell.as their attorney, that by publishing false statements about him to the State Bar of California and the High-Speed Rail Authority, Graves had intentionally interfered with Odell’s contractual relationship with the Gannons, that he had intentionally interfered with Odell’s prospective economic advantages with the Gannon’s and others by defaming him and disparaging the quality of Odell’s work, and that Graves had intentionally defamed Odell when publishing knowingly false statements about Odell to others, including Odell’s employer, the California High-Speed Rail Authority. On April 19, 2019, Graves filed a Special Motion (“Motion to Strike”) to Strike Odell’s claims against him, including Odell’s Second, Third, Fifth and Sixth Causes of Actions against him, and the Odell’s Fourth Cause of Action for Negligence against both he and the Gannons. The Motion to Strike was heard by this Court on June 5, 2019, and the Court’s Decision on Submitted Motion to Strike (Anti-SLAPP) causes of Action by Plaintiff's (“Decision”) was filed and served on the Parties on July16, 2019. In that Decision, this Court noted that “the only claim upon which Odell has shown a probability of prevailing is the defamation claim against Odell (sic) based upon the letter to High-Speed Rail Authority. Odell has not shown how such conduct can be a basis for negligence. Nor has he offered evidence that would implicate the Gannons in this claim. Therefore, the Court finds that Odell has not carried his burden of showing a probability of prevailing on negligence and that claim is stricken.” (Decision, p. 9, Ins. 9 — 16) Notably, although striking the Negligence cause of action, the Court made no findings, that Odell’s act of including his Negligence cause of action in his Cross-Complaint had been done in bad faith, that the Cross-Complaint was a SLAPP against the Gannons, and/or it, or the Negligence cause of action was frivolous. To the contrary, the Court implied that they were not, stating only that Odell had “not carried his burden of showing a probability of prevailing on negligence.” (Decision, p. 9, Ins. 15 — 16) OPPOSITION TO. MOTION, FOR ATTORNEYS’ FEESoO ND WH RF WY NR NN NN NN NY Bee Be eB Be we ewe ewe eB BRwRRREBRHEBRSEB VWF BDEBERSTS The Court continued in its Decision by informing the parties that while the Court “will consider a request for attorneys fees through a separate motion brought by the Gannons” as “Graves represented himself in this motion and may not recover fees for the work. (Taheri Law Group, supra, 160 Cal.App.4"" 482, 494.) In this situation, any request for fees by the Gannon’s must include a sufficiently detailed explanation of the work related to the negligence claim against the Gannons as compared to the work done on all of the other claims.” (Decision, p. 9, Ins. 19 — 25) Apparently disregarding that cautionary note, on August 20, 2019, Graves filed a Memorandum of Costs with this Court in which he represented himself to the Court as the “Judgement Creditor” for purposes of the Motion to Strike and claimed that as the Judgment Creditor, he was entitlement to $45,081.49 in fees and costs as the prevailing party on the Motion to Strike. (see Exhibit “A” to the Declaration of Donald Odell in Support of Opposition to Motion for Attorneys’ Fees (“Odell Dec.”) Notably, the $45,081.49 that Graves claimed as owed to him was $8,81 1,49 more than the $36,270.00 that the Gannons had previously claimed that they had been billed for the Motions to Strike when presenting their April 22, 2019 “Déclaration of Daniel John Gannon Fr. and Pamela Elliott Gannon in Support of Special Motion to Strike that the Motion to Strike” (“Gannon Dec”) to this Court. (See Exhibit “B”, § 19 to Odell Dec.) That amount was, in turn $7,525.00 more than the $28,745.00 that Mr. Graves’s Office now represents to this Court was the entire cost of Motion to Strike cost (see Declaration of K. Kasey Corbit in Support of Cross-Defendants’ Motion for ‘Attorneys? Fees (“Corbit Dec. 6). After considering these Declarations and Graves’s Memorandum of Costs, the only conclusion that can be drawn is that someone in the Cross-Defendants’ camp is not telling the truth, and that none of them know what, if any fees were charged by Graves to the Gannons actually applied to the Motion to Strike for the limited purpose of Negligence cause of action against the Gannons. , In fact, even after a most careful review of Mr. Graves’s billing records, this writer cannot determine whether or not any of the fees included in the various “Exhibits” to Ms. OPPOSITION TO MOTION, FOR ATTORNEYS’ FEESC0 em NN DH BF WY eS bon Db oN NN DY ee we Be ewe ewe eB eB ek BNRRRBBHBSSBWRBDESERSTS Corbit’s Declaration apply to that cause of action, but what is made clear, the vast, vast majority of the fees applied only to Odell’s claims against Graves. / In short, the Gannon’s present before this Court asking for an award of fees, without a properly noticed motion, with no finding by this Court that’Odell’s Negligence cause of action was a SLAPP, without a basis on which this Court should consider the Gannons to be the “prevailing party” on the Motion to Strike, and without any evidence documenting any amount of fees to which they would be entitled if this Court found in their favor on this Motion. The Gannon’s Motion for Attorneys’ fees is therefore unsupported and unsupportable and should now be denied with prejudice. IV. ARGUMENT IN OPPOSITION TO MOTION A. Plaintiffs Motion for Attorneys’ Fees Was Not Properly Noticed California Rules of Court, Rule 3.1110 state in relevant part as: Rule 3.1110. General format a) Notice of motion A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order. (b) Date of hearing and other information The first page of each paper must specify immediately below the number of the case: (1) The date, time, and location, if ascertainable, of any scheduled hearing and the name of the hearing judge, if ascertainable; On March 9, 2022, Nicole M. Alioto, served Cross-Defendants’ Motion for Attorneys’ Fees and supporting papers, including “Cross-Defendant’s Notice of Motion for Attorneys Fees Upon Granting of Special Motion to Strike (ANTI-SLAPP) cause of Action Four” on Odell by “Electronic Mail”. True and Correct Copies of the cover pages for Cross Defendants’ Notice of Motion for Attorneys Fees Upon Granting of Special Motion to Strike (Anti-SLAPP) Cause of Action Four” and supporting documents are collectively attached to the Declaration of Donald A. Odell in OPPOSITION TO MOTION, FOR ATTORNEYS’ FEESom ND NH BF WN YN YN YN NR NN BB ee we we ewe eB ee eI A aA Fo NH = SO wM AAA RDN FS Support of Cross-Complainant’s Opposition to Motion for Attorneys’ Fees (“Odell Dec”) as Group Exhibit “C” and incorporated by this reference as though fully set forth herein.) The Moving Papers, including Cross-Defendant’s Notice of Motion, failed to include the date, the time, or the location of the hearing, making the notice ineffectual for purposes of Rule 3.1110 and the Motion must therefore be denied based on Cross-Defendants’ failure to properly notice it. B. Odell’s Fourth Cause of Action for Negligence was Not Found to be a SLAPP As explained by the Court in Ketchum v. Moses (2001) 24 Cal.4th 1122. "In any action subject to [the special motion to strike], a prevailing defendant ... shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay , the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to [Code of Civil Procedure] [s]ection 128.5." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, Code Civ. Proc., § 425.16, subd. (c).) For purposes of Section 128.5, “Frivolous” means (A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party." Carpenter v, Jack in the Box Corp (2007) 151 Cal-App.4"" 454, 457 Before attorneys’ fees can be awarded, court must conclude that a suit, or in this case, a cause of action isa SLAPP. This is because a defendant:is entitled to fees under section 425.16, subdivision (c) as a right, if and only if the suit or cause of action was as SLAPP (see Liu v. Moore (1999) 69 Cal.App.4"" 745, 752-753). A failure to sufficiently plead a cause of action does not make that cause of action, or the case underlying it retaliatory, or, for that matter, an effort to silence protected speech, as required under Section 426.16 (see Sandlin v. McLaughlin (2020) 50 Cal.App.5" 805, 818). Here, nothing in Court’s Decision states or even suggests that Odell’s Fourth Cause of Action for Negligence was a SLAPP or intended to silence protected speech. In its Decision, this Court concluded the following in relevant part that: “It is clear that many of the statements in the letter to the High-Speed Rail OPPOSITION TO MOTION, FOR ATTORNEYS’ FEES0 OD YN DH RB BN RN NY NY YN NY NN NY Bee ewe eB ee eB Be eS IAD A BF HH |= SO we HN A HW RB WN SF DS Wo) St Authority would constitute a claim for defamation if any of the statements were false.” (Decision, pg. 7, Ins, 20 — 23.) “The negligence claim is based on the Gannons and Graves having a duty to make truthful statements about Odell. The claim does not specify which statements it is based on and as such, it appears that his claim is based on all prior statements alleged in the complaint.” (Decision, pg. 8, Ins. 25— 27, pg.9, In. 1) The only claim upon which Odell has shown a probability of prevailing is the defamation claim against Odell based upon the letter to the High-Speed Rail Authority. Odell has not shown how such conduct can be the basis for negligence. Nor has he offered evidence that would implicate the Gannons in this claim. (Decision, pg. 9, Ins. 9 — 13.) Therefore, the Court finds that Odell has not carried his burden of showing a probability of prevailing on negligence and that claim i is stricken.” (Decision, pg. 9, Ins. 15 -16.) : In rendering that Decision, the Court made no finding that the Negligence claim was a SLAPP, that it was filed in bad faith, that it was frivolous, or that is was solely (or incidentally) intended to cause unnecessary delay, findings that are necessary before the Gannons could be entitled to recover attorneys frees in any amount. To the contrary, the Court found simply that Odell, had not borne his burden of showing a probability of prevailing on the negligence claim. (see Decision, pg. 9, Ins. 15 — 16.) That finding is not enough to base an award for attorneys’ fees on. The Court, having not found that Odell’s Negligence cause of action was a SLAPP, the Gannons are not entitled to recover attorneys’ fees in this matter and the Motion should be denied. C. The Court’s Order Striking the Odell’s Fourth Cause of Action had only an Incidental Benefit to the Gannons. Graves brought the SLAPP motion challenging five of Odell’s six causes of action against him, including the combined negligence claim against both he and the Gannons. While Graves prevailed on five of the six, he was representing himself and therefore, as pointed out by this Court in the Decision, “Graves represented himself and may not recover fees OPPOSITION TO MOTION FOR ATTORNEYS” FEESCe YN Dw PB wWwN & mw oN NR NR N Boe eee — BNRRRRBBRRBE SERRA AREBTRTS ) 5 for the work. (Taheri Law Group, supra, 160 Cal.App.4" 482, 494.)” (Decision, p.9, Ins. 21 — 23) On the other hand, Odell brough two causes of action against the Gannon’s, the First Cause of Action, or as the Graves’s billing records refer to it “1st COA against Gannons” for Breach of Contract, and the combined Fourth Cause of Action against the Gannons and Graves for Negligence. While Graves prevailed on his Motion to Strike the Negligence cause of Action, and his work may have had a corollary benefit to the Gannon on the Negligence cause of action, that benefit cannot be reasonably considered to have been the principal purpose or effect of Motion to Strike, the benefit was, at best, incidental to the Gannons’ case. It also cannot be said that the Gannons achieved any practical gain from the Motion to Strike, because they gained no notable benefit from it justifying a finding that they “prevailed” on the Motion to Strike, without which, an award of attorneys’ fees is not justified. Odell’s case against the Gannon’s remains at issue, the same facts continue to control the case now as they did before the Motion to Strike, the same parties remain in the case, and the facts remain the same. The Motion to Strike did not limit discovery, reduce Odell’s damages against the Gannons, narrow the scope of the litigation, or alter the settlement posture. The Gannons still face the same evidentiary hurdles in their defense against Odell’s case, and the same risks of an adverse judgment being rendered against them in favor of Odell, as they did before the Motion to Strike. Based on similar facts, the Court in Moran v. Endres (2006) 135 Cal-App.4th 952, concluded that when a defendant cannot in,any realistic sense be said to have been successful; fees need not be ‘awarded. Defendants'here sought to dismiss the case against them, but instead obtained a ruling which in every: practical sense meant nothing;-That does not-entitle them.to fees: Id @ 956. In his concurring ‘option, in that case, Justice Mosk observed that: There-appéars to be a caveat expressed ina United States Suprethe Court case involving an "analogous" statute — title 42 ‘United States Code section 1988. The OPPOSITION TO MOTIO} {FOR ATTORNEYS’ FEESi (> court in Hensley v. Eckerhart (1983) 461 U.S. 424, 433 [76 L.Ed.2d 40,'103 S.Ct. 1933] said,."° plaintiffs may be considered "prevailing partiés" for attorney's fees purposes if they succeed on afiy significant issue in litigation which achieves some of the benefit arties sought in:-bringing suit." (Italics added.) (This was cited in. Computer? , Supra, 93. Cal.App.4th at'p. 1019.) Similarly,'as noted in ComputerXpress, in Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal-App.4th 1381, 1392.[.107 Cal.Rptr.2d 29], applying the attorney fees provision of the California Public-Records Act (Govt. Code, § 6259, subd, (d)), "the court acknowledged the possibility that in some cases a plaintiff might obtain documents that are so minimal or insignificant as to justify a finding that it did not prevail." ( ComputerXpress, supra, 93 -Cal.App.4th at p. 1020.) Here, the successful motion to strike was so insignificant that defendants should not be. viewed as prevailing defendants for purposes of an attorney fee award. For that reason I concur. Moran, supra,.135 Cal.App.4th 957. (emphasis added) To borrow language from.the Moran Court, “to be blunt”, .Graves accomplished nothing for the Gannons by including them in-his Motion to Strike “except that plaintiffs were put to the cost of defending the motion.:Thé possible recovery against defendants did not change. The factual allegations which defendants had to defend did not ‘change: The work involved in trying the case did not change. Defendanis' burden concerning their jurisdictional defense did not change. The case was essentially. the same after the ruling on the special motion'to-strike as it was before. The results of the motion were minimal and insignificant, fully justifying the court's finding that defendants should’not recover fees.” Moran supra, 135 Cal.App.4" at 955. As in Moran, the Gannon’s gained nothing from having the Negligence cause of action stricken. Their victory was illusionary, the only. person. who benefited from the Motion to Strike was Graves, who, by adding the Gannons to his Motion to Strike, was.able to bill them for his motion and who can now attempt to back-door his claim to-recover his own fees and costs, by shifting those fees to the Gannons. The Gannons may be considered to be a “pievailing” party on the Negligence cause of action, but that hold that label in name only because there is no practical effect or benefit attached to it:: The Gannons “victory” was purely illusory and entitled them nothing of value or benefit and they should now be.rewarded for further delaying this matter and increasing its costs to-the Court by’ filing this unsupportable Motion. The: Gannon’s motion for attorneys’ fees OPPOSITION TO MOTION FOR ATTORNEYS’ FEES0 Om ND HU BF WN PN YN YR RN NY SF Be Be ew we eB Be eB on Dn UU FF WN KF SD 0 Fe DDH FF YW NY KF OC should therefore be denied: The Gannons’ Motion Fails to Identify any Fees Associated with Gannon’s Challenge to Odell’s Fourth Cause of Action The Gannon’s offer the Declarations of Benjamin C. Graves and K. Kasey Corbit in support of this Motion. Mr. Graves Declaration beyond summarizing his “accomplishments”, is notable in that he “declares” that the Attorneys fees claimed in this Motion were “billed to the client and necessary to prove the claims.” (see Declaration of Benjamin C. Graves In Support of Motion for Attorneys’ Fees, {2 (“Graves Dec.”), a statement that is directly contradicted by the representations contained in his August 20, 2019 Memorandum of Costs (Odell Dec, Exhibit “A”), and disputed by his own billing invoices. . For her part, Ms. Corbit, while attaching a number of billing records to her Declaration, also confirms that the fees reflected “were billed to the client and necessary to prove the claims.” (see Declaration of K. Kasey Corbit In Support of Motion for Attorneys’ Fees, §2 (“Corbit Dec.”) also neglects to identify what, if any of the fees, related to the limited scope of the Motion to Strike that pertained to the Negligence cause of action against the Gannons, or why those fees are different than what Mr. Graves claimed for himself in August of 2019. Comparing the two Declarations, it is interesting to note that, perhaps by error, Mr. Graves and Ms. Corbit both use of the plural for “claims” in their Declarations. While that may have been done to ensure that this Court knows that the fees charged to the Gannons covered the costs to challenge all five of Odell’s Causes of Action against Graves, not just the Fourth Cause of Action for Negligence, at issue here, it is equally notable that neither Mr. Graves’s nor Ms. Corbit’s statements in their Declarations support that. The more logical reading of the Declarations results in the conclusion that both Mr. Graves and Mr. Corbit want this Court to award the Gannons “$18,971.70” of the fees Mr. Graves incurred when representing himself in the Motion to Strike, so that Graves can use those fees to off-set the fees that he billed to the Gannons in March through June of 2019 to prepare OPPOSITION TO MOTIO| FOR ATTORNEYS’ FEES) UL) and argue his own Motion to Strike. Support can be drawn for that conclusion from the fact that Graves attempted to recover $45,081.49 in fees for himself after the Motion to Strike, and that the Gannons apparently never paid Graves for any of them. In her Declaration, Ms. Corbit now represents to the Court that “the total bill for work on the anti-SLAPP motion and its related pieces was only $28,745.00.” Of which, she claims, the Gannons are entitle on only two-thirds as “applicable and necessary to litigating the validity of the claims against the Gannons” (Id.) but she offers no breakout of the fees to support that conclusion. (Corbit Dec. 6) For their part, the Gannons stated in their April 22, 2019, Declaration that they had “incurred the following legal fees to strike this frivolous motion: a. Fees for Special Motion to Strike the Fourth Cause of Action (Negligence): $29,450.00; and b. Fees for Special Motion to Strike the Second, Third, Fifth, and Sixth Causes of Action: $6,820.00 c. We anticipate an Opposition , and Reply Brief and hearing in addition to this expense.” ‘ : (see Gannon Dec. § 19) Mr. Graves, on the other hand, reached even higher when he declared to the Court on August 20, 2019, that the cost for the Motion to Strike was $45,081.49 and that he was individually entitled to recovery all of that amount as the “judgement creditor” (Graves Memorandum.{7 & 4) Taking these sworn “declarations” together, it becomes more than clear that at least three of the four declarants have misrepresented to this Court how much the Motion to Strike actually cost, and who paid that cost. The Gannons say that they were billed by Graves $36,270.00 ($29,450.00 + $6,820.00) for a Motion to Strike that Ms. Corbit states only cost $28,745.00 in total and for which the Gannon’s were only responsible for paying $18,971.10. OPPOSITION TO MOTION YfOR ATTORNEYS’ FEESOo em ND HW RB BW YN YN NN DY Bee Be Be ee Be em eB BRwRRR BB EB Pe WA BREERES OO i) Mr. Graves says that the Motion to Strike cost $45,081.49 and that he is the only one entitled to recover that amount. / In her Declaration, Ms. Corbit is now essentially telling the Court that the Gannons falsely represented the amount of fees billed to them for the Motion to Strike when they filed their Declaration and that Graves interitionally misrepresented the amount of fees incurred for the Motion to Strike in his August 20, 2019, Memorandum of Costs. Given the disparities between the dollars claimed by the various parties and attorneys, two things are very clear, Graves and his office dramatically overbilled the Gannons for the Motion to Strike and no one knows how much time it took to Graves to include the Gannons in his Motion to Strike for purposes of the Negligence cause of action. This second fact that is made clear is that Graves’s billing records are not detailed enough to determine what aspect of Graves’ Motion to Strixe each billing entry applied to, let alone which related to Odell’s Negligence cause of action against the Gannons. According to those billing records, between March 1, 2019, and March 28, 2019, Graves’s staff billed the Gannons $7,316.25 in fees. Of that amount, the only fee related to “claim 4” was an unstated amount billed for Ms. Corbit to “Draft demurrer meet and confer letter (claims 4 and 5). . .” (see Corbit Dec. Exhibit 1, “3/28/19” entry) Between April 1, 2019, and April 29, 2019, Graves and his team billed the Gannons $19,567.16 for work, apparently on the Anti-SLAPP moticn (plus and additional “$12,7474.48” for a “Previous [undefined] balance], of which not a single included entry mentioned Odell’s Fourth Cause of Action. (see Corbit Dec. Exhibit 1, 4/2/201 9, 4/3/2019, 4/9/2019, 4/12/2019, 4/16/2019 and 4/17/2019 entries), In June of 2019, Graves and his team billed the Gannons an additional $9,615.60 in current fees, and an additional $37,361.09 fora “Previous Balance”. Of the “Current Charges billed on the June 2019 invoice, the only identifiable amount billed by Graves relating to “COA 4” was the second of the two June 26, 2019, billing entries by Graves. That entry was included within the 7.10 total hours:Graves billed to the Gannons for OPPOSITION TO. MOTIONFOR ATTORNEYS’ FEESoem YN HW BF BN RN NY YN YN NNN NY Be Be Bee Be ewe eB Be eB eo QI A A BF YWw NH FF SO wMe A DAA RF WYN SF Ss Ne work on the day the Motion to Strike was heard, and included “Transport time to Contra Costa County Superior Court for Argument on Gannon COA 1” and “Attentiono (sic) Odell letter regarding grounds for objection top (sic) tentative ruling; legal rexserach (sic) COA 4 items (duty related to invoices sound in contract not tort; preparation for hearing and argument and hearing at Contr (sic) costa County Superior.” the “1 COA against Gannon. (see Corbit Dec. Exhibit 1, 6/26/2019 entries). Graves’s two June 6, 2019, entries are particularly impressive in that he apparently billed the Gannons for 7.1 hours of work before he even arrived at the Court for the 9:00 a.m. hearing on the Motion to Strike. Corbit’s “Exhibit 2” to her Declaration includes two billing statements. The first, for work between July 16, 2019, the second, for work between October 19, 2021 and February 28, 2022. (Corbit Dec. Exhibit 2) According to the July 2019 invoice, Graves billed the Gannons for $372.30 for “Current Charges” incurred in July of 2019, and an additional $46,976.69 for a Previous Balance. None of which was identified as applicate to the Negligence cause of action. (Corbit Dec., Exhibit 2) The July 2019 statement is particularly intriguing because the “Previous Balance” of $46,976.69 approximates the amount Graves told the Court on August 20, 2019, that he was owed for his work on the Motion to Strike. (see Graves Memorandum, §1) The remaining five months of billing entries included in Ms. Corbit’s Exhibit 2 all appear to relate to this matter generally and not to the Negligence cause of action at issue here. It is well settled that "a defendant who brings a successful special motion to strike is entitled only to reasonable attorney fees, and not necessarily to the entire amount requested. Cabral v. Martins (2009) 177 Cal.App.4th 471, 490 Only those attorney fees related to the SLAPP, motion, in this this case, only those related to the limited issue of the Negligence cause of action against the Gannons, may be recoverable under C.C.P§ 425.16(c). A defendant is not to obtain, as a mater of right, his or her attorneys’ fees incurred on merely because the attorney worked on multiple overlapping claims. The defendant must show OPPOSITION TO MOTION {FOR ATTORNEYS’ FEES0 Om ND HW F&F WN NY NRN YN YN NR NN Be ee Be ee Be Be Be Be oN A A BF YH NH &§ SGD we IN DAH BF BW YH KF that the fees claimed were reasonable, and that they were related to the complaint, or in this case, the cause of action for which the Motion to Strike was addressed. (see Mann v. Quality Old Time Service, Inc. (2009) 139 Cal.App.4"" 328, 345-346) The Gannons have failed to offer any evidence of what, if any fees were charged to them related to the narrow issue of the Negligence cause of action, or what the reasonable value of those fees was. What evidence they did produce came in the form of Ms. Corbit’s Declaration, which at best, suggest only that on “3/28/2019” Ms. Corbit worked ¢o “Draft demurrer meet and confer letter (claims 4 and 5)”. No breakout was provided separating that work from the other work in that “block” entry, and no explanation was given as to why work on “demurrer meet and confer letter” is recoverable as fees in a SLAPP motion. (see Corbit Dec, Exhibit 1, 3/28/2019 entry) The only other entry that this writer could find in the submitted billing records relating to the Negligence cause of action was a June 26, 2019 entry by Mr. Graves in which he gave some undefined “attentiono (sic) Odell letter regarding grounds for objection top tentative rule; legal rexserch (sic) COA 4 items (duty related t invoices sound in contract, not tort;. . . “ for which he billed the Gannons 4.1 hours, again not bothering to break ‘out what, if any of that time, related to the Negligence claim against the Gannons, rather than himself. (Corbit Dec., Exhibit 1, 6/26/2019 entry) In all, nothing in the Gannon’s moving papers offered in support of this Motion suggests, that the Gannon’s were billed for any work on the Negligence cause of action, let alone how that work differed from work that Graves and his staff did on the Gannon’s behalf when preparing and filing Graves’s Motion to Strike. In fact, all that is shown by the records is that as of June 26, 2019, when this motion was heard, all of the work done on the Motion to Strike was for Graves’s sole benefit and that the Graves’s bill to the Gannons for that work has never been paid. Even Ms. Corbit’s suggestion that if any fees are found by this Court to be tied to work on the Gannon’s behalf related to the Motion to Strike the Negligence claim, those fees should be discounted by one-third (Corbit Dec. 6), is unsupportable. OPPOSITION TO MOTION FOR ATTORNEYS’ FEESom IN DH BF WN MN NY NY NY NY N N NY HN ewe ee BE RE Ee oN A A KF Bw Yd F=F SD we AIA DH BF BW NH SF The Motion to Strike addressed 5 causes of action, only one-half of one of them impacted the Gannons. If any fees are found to be recoverable by the Gannons, those fees need to be reduced by four-fifths to reflect the time Graves dedicated to striking the other four claims against himself, and then again reduced by a further one-half to account for the Gannon’s collective shared interest with Graves in the outcome of the Motion to Strike as it applied to the limited issue of the Negligence cause of action. Taken in total, The Gannons have failed to present any evidence to support a finding of entitlement to Attorneys fees in this matter, and even less evidence to establish what if any amount of fees they incurred because of the Motion to Strike. The Gannons Motions should therefore be denied. Iv. CONCLUSION This Motion was not properly noticed, there has been no finding made by the Court that Odell’s Negligence cause of action against the Gannons amounted to a SLAPP, the Gannons achieved no appreciable benefit from the Motion to Strike, and therefore are not the “prevailing parties” for purposes of an award of attorneys’ fees in this matter, and they have offered no evidence that they paid any fees to Graves while riding on his “coat tail” for purposes of the Motion to Strike the Negligence cause of action. Therefore, having failed to establish a basis on which this Court can fashion an award for attorneys’ fees that is reasonably related to Odell’s Negligence claim against them, this Motion should be denied in its entirety. Respectfully submitted, Date: April 8, 2020 By: Qso AQo22 6 Donald A. Odell, in pro per. OPPOSITION TO MOTION FOR ATTORNEYS’ FEESCem YN DH BF WN NY N NY N NN N DN NY Bee Be Be Be Be Be Be eB oN DAW BF BN F&F SFO ODA DH BF BH KH S PROOF OF SERVICE I, Erika Pieger, declare: I am employed in Contra Costa County, State of California, am over the age of eighteen’ years, and not a party to the within action. My business address is 1480 Moraga Road, Ste. C115, Moraga, CA 95466. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: OPPOSITION TO MOTION FOR ATTORNEYS’ FEES on the parties in this action by transmitting a true copy thereof by electronic, with an copy sent by U.S. Mail to: " BENJAMIN C. GRAVES K. KASEY CORBIT LAW OFFICES OF BENJAMIN C. GRAVES LAW OFFICES OF BENJAMIN C. GRAVES 1100 Sir Francis Drake Blvd., Suite 1 1100 Sir Francis Drake Blvd., Suite 1 Kentfield, CA 94904 Kentfield, CA 94904 Electronic Mail Address: Electronic Mail Address: kasey@marinlitigation.com benjamin@marinlitigation.com [X] (By Electronic Mail) I caused each document to be served by electronically mailing the same to the attorneys and/or parties noted above . {[] (@y Facsimile) The above-referenced document(s) was transmitted by facsimile transmission to the number(s) shown and the transmission was reported as complete and without error. [X] (By US. Mail) I caused a copy of each document to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Orinda, California. [] Gy Personal Service) I caused each such envelope to be delivered by hand to the persons’ named above. I declare under penalty of perjury that the foregoing is.true and correct and that this declaration was executed on April 8, 2020, at Orinda, CA