Preview
1 O’BRIEN WATTERS & DAVIS, LLP
Michael G. Watters, Esq. (CSB No. 63140)
2 Graden R. Tapley, Esq. (CSB No. 222636)
1550 Airport Blvd., Suite 201
3 Santa Rosa, CA 95403-0918
(707) 545-7010
4
Attorneys for Defendants,
5 Mitchell Black, Deanne Black, Black Knight Vineyards, LLC
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SONOMA
10
11 BARRY BRILLIANT, an individual ; and Case No. SCV-267406
DAGMAR K. HOHENECK-SMITH, an
12 DEFENDANTS’ MOTION TO STRIKE /
individual and as trustee of THE DAGMAR
13 HOHENECK-SMITH TRUST dated December TAX COSTS AND OPPOSITION TO
14, 2010, PLAINTIFFS’ MOTION FOR
14 ATTORNEY’S FEES AND COSTS
Plaintiffs,
15 vs.
16
MITCHELL G. BLACK, an individual and dba
17 BLACK KNIGHT VINEYARDS ; DEANNE
G. BLACK, an individual and dba BLACK
18 KNIGHT VINEYARDS ; and DOES ONE
through TWENTY, inclusive,
19
20 Defendants.
______________________________________/
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DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS
Brilliant v. Black, SCV-267406
Cover Page
1 TABLE OF CONTENTS
2 Opening Summary …………………………………………………………………… page 1
3 Plaintiffs Failed to Submit/Serve any Admissible Evidence …………………………… page 1
4 13A is Not Applicable to Defendants’ Property …………………………………… page 3
5 Plaintiffs Failed to Meet Their Burden of Proof …………………………………… page 4
6 Plaintiff Failed to Establish that Their Fees were Reasonable and Necessary …… page 5
7 Serving Redacted Invoices on Defendants Cannot be Condoned …………………… page 6
8 Plaintiffs’ Claim that All of Their Fees are “Inextricably Intertwined” is False …… page 6
9 Plaintiffs are Not Entitled to Expert Witness Fees Unless Court Ordered …………… page 9
10 There are No Common Issues of Law Between 13A and Other Causes of Action …… page 9
11 The Amount of Claimed Attorney’s Fees is Outrageous …………………………… page 10
12 Plaintiffs Failed to Prove the Truth of Denied Requests for Admission …………… page 11
13 Little Court Time was Needed to Prove the Violation of 13A …………………… page 11
14 Mr. Bacho Grossly Over-Worked the Case After 13A was Added …………………… page 12
15 Allocation of Time Spent on 13A …………………………………………………… page 12
16 Conclusion …………………………………………………………………………… page 13
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TABLE OF CONTENTS FOR DEFENDANTS’ MOTION TO STRIKE AND OPPOSITION TO ATTORNEY’S FEES
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1 CASES
2 Atkins v. Enterprise Rent-A-Car (2000) 79 Cal.App.4th 1127, 1133 …………………… page 7
3 Bell v. Vista Unified School (2000) 82 Cal.App.4th 672 …………………………… page 7
4 Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173,177 …………………… page 10
5 County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 67 …………… page 6
6 Guillory v. Hill, (2019) 36 Cal. App. 5th 802, 811 …………………………………… page 4
7 Los Angeles County Board of Supervisors v.
8 Superior court of Los Angeles County (2016) 2 Cal.5th 282, 293 …………… page 6
9 Martino v. Denevi (1986) 182 Cal.App.3d 553, 558 …………………………………… page 5
10 Mather Zaheri Corp. v. New motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1317. …… page 2
11 Melnyk v. Robledo (1976) 64 Cal.App.3d 606, 618 …………………………………… page 4
12 Ramon v. County of Santa Clara (2009) 173 Cal.App.4th 915, 925 …………………… page 4
13 Roe v. Halbig (2018) 29 Cal.App.5th 286, 311 …………………………………… page 4
14 Sargon Enterprises, Inc. v. Univ. of S. California, (2012) 55 Cal. 4th 747, 773 …… page 3
15 Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48 …………………………… page 4
16 Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522 …………………………………… page 10
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TABLE OF CONTENTS FOR DEFENDANTS’ MOTION TO STRIKE AND OPPOSITION TO ATTORNEY’S FEES
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1 STATUTES
2 Business and Professions Code
3 §6068 …………………………………………………………………………… page 2
4 California Civil Code
5 §481 …………………………………………………………………………… page 7
6 §3479 …………………………………………………………………………… page 7
7 §3517 …………………………………………………………………………… page 8
8 Canons of Judicial Ethics …………………………………………………………… page 2
9 Code of Civil Procedure
10 §998 …………………………………………………………………………… page 9
11 §1005 …………………………………………………………………………… page 1
12 §1021 …………………………………………………………………………… page 4
13 §1033 …………………………………………………………………………… page 4
14 §2033 …………………………………………………………………………… page 11
15 Evidence Code
16 §350 …………………………………………………………………………… page 2
17 §952 …………………………………………………………………………… page 6
18 §1520 …………………………………………………………………………… page 11
19 §1523 …………………………………………………………………………… page 11
20 Rules of Professional Conduct
21 Rule 1.6 …………………………………………………………………… page 2
22 Rule 3.5 …………………………………………………………………… page 2
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1 OTHERS
2 Declaration of Ed Lear …………………………………………………………… page 2
3 Declaration of Graden Tapley …………………………………………………………… page 2
4 Declaration of Joyce Whitaker (filed in Support of Motion for a New Trial) …… page 14
5 Declaration of Michael G. Watters …………………………………………………… page 11
6 Declaration of Timothy Watters …………………………………………………… page 12
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1 OPENING SUMMARY
2 Plaintiff’s Motion for Attorney’s Fees and Costs (“Plaintiffs’ Motion”) should be denied,
3 in full, for the following reasons: Section 13A (“13A”) and its fee-shifting provision don’t apply to
4 Defendants’ real property, failure to submit and serve admissible evidence, failure to meet burden of
5 proof, failure to establish that fees and costs were reasonable and necessary, failure to establish
6 common issues among the causes of action, failure to prove the truth of denied requests for
7 admission, and erroneously asking for expert witness fees, among other things.
8 If the court finds some applicability regarding 13A and its fee-shifting provision and ignores
9 Plaintiffs’ gross due process violations, then, at the very most, and without any challenge as to why
10 Plaintiffs had 5 attorneys and 3 paralegals working on the case with less than $10,000 in actual
11 property damage, the most Plaintiffs could be awarded is 11% of the total invoices (based on the
12 percentage of time spent at trial and in depositions on the subject of 13A) after the following
13 reductions: work performed prior to the 13A cause of action was added to the FAC in the amount of
14 $26,100 and expert witness fees of $46,365.92. These would total $41,170.47.
15 DEFENDANTS’ OPPOSITION
16 Plaintiffs’ Motion is solely based on Sonoma County Code of Ordinance 13A-8 which
17 provides for “reasonable attorney’s fees and costs.” (Emphasis added) (A copy of Section 13A is
18 attached hereto as Exhibit A.)
19 PLAINTIFFS FAILED TO SUBMIT/SERVE ANY ADMISSIBLE EVIDENCE
20 Plaintiffs failed to submit any admissible documentary evidence in support of their claim that
21 the attorney’s fees were reasonable in amount. The information submitted was either inadmissible
22 and/or submitted to the court in violation of CCP §1005 and the Rules of Professional Conduct
23 (“RPC”) or redacted so as to prevent any meaningful review.
24 Plaintiffs’ attorneys submitted unredacted copies of Plaintiffs’ attorneys’ invoices to the court.
25 Copies of these invoices were not filed with the court clerk and apparently were provided directly to
26 the court’s Judicial Assistant. “Unredacted copies of this report are also being provided only to the
27 court for its review.” (Declaration of Davin Bacho (“Bacho’s Declaration”), page 2, line 4.)
28 (Emphasis added) This is a gross violation of due process of law including CCP §1005, (b): “all
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1 moving and supporting papers shall be served and filed at least 16 court days before the hearing.”
2 (Emphasis added) It is also an ex parte contact with the court in violation of RPC, Rule 3.5(b)(4) The
3 court has no authority to conduct an in-camera review of attorney-client privileged material or ex
4 parte communication. (B&P Code §6068(e)(1). See also RPC, Rule 1.6 and Canons of Judicial
5 Ethics.) No unredacted invoices were provided to Defendants in violation of fundamental due
6 process of the rule against ex parte communication. (See the Declaration of Ed Lear.)
7 The invoices provided to Defendants were 100% redacted of all entries showing the services
8 provided to Plaintiffs. (A true and correct copy of the billing invoices served on Defendants is
9 attached as Exhibit A to the Declaration of Graden Tapley,). By serving only redacted invoices on
10 Defendants, Mr. Bacho has denied Defendants the opportunity to review the invoices and the entries
11 showing what was supposedly done and how long it took, thereby preventing Defendants from having
12 the ability to challenge the reasonableness and necessity of the claimed fees. Apparently, the Court
13 gets to review all 56 pages and then determine what was reasonable and necessary and applicable to
14 Section 13A (“13A”) without any input from Defendants—an outrageous violation of due process.
15 A lawyer shall not directly or indirectly communicate with the judge upon the merits of a
16 contested matter pending before the judge with a writing except with a copy thereof furnished to all
17 other counsel. (California RPC, Rule 3.5(b)(4).) (Emphasis added) The prohibition of communication
18 by counsel with the court outside the presence of the other party is a rule of [fundamental] fairness
19 meant to insure that all sides will be heard. (Mather Zaheri Corp. v. New motor Vehicle Bd. (1997) 55
20 Cal.App.4th 1305, 1317.) Why have a trial unless it is a fair trial?
21 Mr. Bacho’s ex parte communication with the court was intended to obtain an unfair
22 advantage for his clients by getting the court to consider the invoices without Defendants’ ability to
23 object or comment about them. Mr. Bacho was well aware that such conduct is a violation of the
24 Defendants’ due process rights because he recently sent correspondence to opposing counsel. (See
25 Mr. Bacho’s written explanation of the prohibition of ex parte communications as an element of due
26 process fairness attached as Exhibit B to the Declaration of Graden Tapley.)
27 The court may only consider admissible evidence in support of Plaintiffs’ Motion. (Evidence
28 Code §350.) Defendants actually get to fully participate in the process. Evidence submitted to the
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1 court in an ex parte communication is in violation of a party’s due process rights and the RPC and
2 can hardly be “admissible.”
3 In the absence of any admissible evidence, Plaintiffs’ Motion must fail. While the court has
4 discretion to determine whether evidence is admissible or inadmissible, that discretion is not
5 unlimited. The discretion of a trial judge is subject to the confines of legal principles, which is not the
6 equivalent of allowing in whatever evidence the court wants to, or “if it feels like it.” (Sargon
7 Enterprises, Inc. v. Univ. of S. California, (2012) 55 Cal. 4th 747, 773).
8 There is no legal principle which would allow the court to “elect” to consider Plaintiffs’ ex
9 parte, unredacted billing invoices as admissible evidence. (CCP §1005 and the Canon.) The court
10 doesn’t have such discretion. To do so, would make a mockery of due process. Likewise, there is also
11 no legal basis upon which the court could choose to grant Plaintiffs’ Motion.
12 13A IS NOT APPLICABLE TO DEFENDANTS’ REAL PROPERTY AND
13 THEREFORE ITS FEE-SHIFTING PROVISION DOES NOT APPLY
14 13A “applies a duty to maintain defensible space and abate hazardous vegetation on improved
15 parcels in the unincorporated area of the county outside of the state responsibility area, and to
16 unimproved parcels within the local and state responsibility areas.” (Emphasis added) The specific
17 requirements for parcels in the “local responsibility area” are enumerated in 13A-4(a). The specific
18 requirements for unimproved parcels in the state responsibility area are enumerated in 13A-4(b). There
19 are no specific requirements listed in 13A for improved parcels in the state responsibility area.
20 13A specifically states that improved parcels in the state responsibility area are governed by
21 “Title 14 of the California Code of Regulations Sections 1299.01 – 1299.05.” These Code of
22 Regulations sections do not provide for a private right of action by an interested person, and so,
23 do not provide for fee-shifting.
24 The evidence at trial confirmed that Defendants’ property was an improved parcel in the state
25 responsibility area. Thus, Defendants’ parcel is not governed by 13A and the attorney’s fee-shifting
26 provision does not apply. There is no language in either 13A or the Code of Regulations which states
27 that an interested person can bootstrap a claim for a violation of the Code of Regulations by asserting
28 that it was a violation of 13A. Because 13A does not regulate Defendants’ real property, there is no
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1 legal basis providing for fee-shifting and Plaintiffs are not entitled to an award of any attorney’s
2 fees. The “American Rule” applies. See CCP §1021.
3 PLAINTIFFS FAILED TO MEET THEIR BURDEN OF PROOF THAT THE FEES
4 AND COSTS WERE REASONABLE AND NECESSARY
5 California uses the “lodestar” method to determine the amount of attorney’s fees to award to a
6 prevailing party. The first step in this the lodestar method is to determine the loadstar amount. This is
7 determined by multiplying the hours reasonably worked by a reasonable hourly rate for those
8 services. (Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48.) The lodestar figure anchors an
9 analysis of the award of attorney’s fees to an objective determination, ensuring that the judge will not
10 just award some arbitrary amount. (Serrano v. Priest (Serrano III) supra, at 49 n23.) Because the
11 lodestar figure is “fundamental,” a trial court’s failure to calculate it is reversable error. (Press v.
12 Lucky Stores, Inc. (1983) 34 Cal.3d 311.)
13 The party seeking fees has the burden of proving what tasks were performed and the amount
14 of time expended to perform those tasks. (Ramon v. County of Santa Clara (2009) 173 Cal.App.4th
15 915, 925.) To meet this burden, the party seeking fees must demonstrate that the fees incurred were
16 reasonably necessary to the conduct of the litigation and reasonable in amount. (CCP §1033.5(c)(5);
17 Melnyk v. Robledo (1976) 64 Cal.App.3d 606, 618.) Plaintiffs cannot meet this burden.
18 A party is only entitled to be compensated for services that a reasonable and prudent lawyer
19 would have done. (Roe v. Halbig (2018) 29 Cal.App.5th 286, 311.) Time that is not properly billed to
20 one’s own client is also not properly billed to one’s adversary. Just because Plaintiffs won the case
21 does not mean that everything their attorneys did was done to enforce 13A.
22 The party seeking fees must submit and serve evidence supporting the hours worked and the
23 rates claimed. Counsel “should maintain billing time records in a manner that will enable a reviewing
24 court to identify distinct claims.” Counsel should also make a good-faith effort to exclude from the
25 fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private
26 practice ethically is obligated to exclude such hours from his fee submission. (Guillory v. Hill, (2019)
27 36 Cal. App. 5th 802, 811.) Such evidence must be served on Defendants. Due process requires this.
28 Plaintiffs failed to serve Defendants with unredacted invoices.
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1 PLAINTIFFS FAILED TO ESTABLISH THAT THEIR CLAIMED ATTORNEY’S FEES
2 WERE REASONABLE AND NECESSARY
3 The party seeking attorney’s fees bears the burden of proof as to the reasonableness and
4 necessity of the fees. To meet that burden, the party must present “(1) evidence, documentary and
5 oral, of the services actually performed; and (2) expert opinion by [the applicant] and other lawyers,
6 as to what would be a reasonable fee for such services.” (Martino v. Denevi (1986) 182 Cal.App.3d
7 553, 558.) (Emphasis added)
8 According to Plaintiffs: “Here, the proof required for the claims under 13A were identical to
9 that necessary for the nuisance, trespass, and negligence claims. In addition, the proof necessary for
10 injunctive relief under 13A was intertwined with that necessary for injunctive relief with respect to
11 the hazards posed by the poplar trees. The attorney fees and costs associated with the entire case
12 were necessary to establish Plaintiffs’ case under 13A so that no allocation of fees amongst the
13 claims is necessary. As prevailing parties under 13A, Plaintiffs are entitled to all of their reasonable
14 attorney fees and costs incurred in this matter” (Plaintiffs’ Memorandum of Points and Authorities in
15 Support of Motion for Attorneys’ Fees, Costs, and Expenses of Proof (“Plaintiffs’ MPA”), page 4,
16 lines 16 – 22). (Emphasis added) All such claims are conclusory.
17 This statement under the heading of “Allocation is Unnecessary,” is, of course, false,
18 misleading, and completely unsupportable by the record. The Complaint made no mention of 13A.
19 The first mention of 13A was in the First Amended Complaint, filed 14 months later.
20 Plaintiffs’ claims are overblown. For example, their arborist had nothing to do with 13A
21 nor did an arborist have anything to do with any of Mitchell Black’s responses to Request for
22 Admissions. There is nothing “identical” about such claims.
23 Mr. Bacho asks the court to award “the full amount of time and the billed hourly rates on this
24 case” (Plaintiffs’ MPA, page 5, line 17) for 5 attorneys and 3 paralegals to work up nearly $400,000
25 on a case with less than $10,000 in actual property damage for which his clients have no standing to
26 recover anyways. (Emphasis Added) That is because Plaintiffs are not the real parties in interest. See
27 Trial Exhibit 85 and Defendants’ Motion for Judgment on the Pleadings.
28 Mr. Bacho falsely claims: “Attached as Exhibit B is a true and correct copy of the hours spent
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1 and rate and work performed in this matter.” However, every single billing entry is completely
2 redacted except for the biller’s initials and time recorded. Furthermore, only a summary invoice was
3 provided, not the monthly invoices, themselves. The redacted invoices hide all references to what
4 tasks were performed; they are utterly useless. It is impossible to determine what work was done,
5 whether the time recorded was reasonable in duration, and whether the tasks were reasonably
6 necessary to achieve Plaintiffs’ objectives, or even if the tasks were in any way related to 13A.
7 “In the absence of such crucial information as the number of hours worked, the billing rates,
8 types of issues dealt with and the appearances made on behalf of the client’s behalf, the trial court is
9 placed in the position of simply guessing at the actual value of the attorney’s services. That practice is
10 unacceptable and cannot be the basis for an award of fees.” (Martino v. Denevi (1982), supra at 558.)
11 Plaintiffs are asking this court to guess which the court cannot. It is not proper for the court to guess.
12 SERVING REDACTED INVOICES ON DEFENDANTS CANNOT BE CONDONED
13 Attorneys send billing invoices for the purpose of being paid for their work. For that reason,
14 they generally do not contain protected attorney work-product. (See County of Los Angeles v.
15 Superior Court (2012) 211 Cal.App.4th 57, 67). This is especially true after the trial is over and any
16 work-product has already been revealed. Moreover, most entries generally do not contain confidential
17 communications, but to the extent they do, these can be redacted. To be protected by the privilege, the
18 communication must be confidential and have some relationship with information conveyed for the
19 purpose of the representation. (Evidence Code §952; Los Angeles County Board of Supervisors v.
20 Superior court of Los Angeles County (2016) 2 Cal.5th 282, 293.)
21 When an attorney is claiming $340,000 in fees, the court needs to ask: “Why did the attorney
22 delete all descriptions of the work recorded on the invoices that were served?” The real invoices must
23 be subject to careful review by the opposition. Due process of law requires this. The only reason Mr.
24 Bacho did that is because the billing entries do not support Plaintiffs’ claim for attorney’s fees.
25 PLAINTFFS’ CLAIM THAT ALL OF THEIR ATTORNEY’S FEES
26 ARE “INEXTRICABLY INTERTWINED” IS FALSE
27 When a cause of action for which attorney’s fees is allowed by statute, happens to be joined
28 with other causes of action for which attorney’s fees are not permitted, the party seeking an award of
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1 fees may only recover on the cause of action for which fees are permitted and must apportion
2 fees accordingly. Upon determining that an award of attorney’s fees is appropriate under a fee-
3 shifting statute, apportionment of fees and costs rests with the sound discretion of the trial court.
4 (Atkins v. Enterprise Rent-A-Car (2000) 79 Cal.App.4th 1127, 1133.) (“The issue of apportionment of
5 fees in such cases rests within the trial court’s sound discretion.” Plaintiffs’ MPA, page 4, lines 13 –
6 14).) An apportionment is not required when the claims for relief are so intertwined that it would be
7 impracticable, if not impossible, to separate the attorney’s time into compensable and non-
8 compensable units. (Atkins v. Enterprise Rent-A-Car, supra, at 1133.) That is not the case here.
9 The obligation to apportion set forth in the Atkins v. Enterprise Rent-A-Car court was
10 interpreted in Bell v. Vista Unified School (2000) 82 Cal.App.4th 672, which is close to the present
11 case. In Bell, plaintiff brought a complaint containing 4 causes of action for a violation of the Brown
12 Act, and 11 other causes of action. Only the Brown Act had an attorney’s fee shifting provision.
13 In support of Bell’s motion for attorney’s fees, he submitted invoices composed of “block
14 billing” entries which were “virtually impossible to break down hours on a task-by-task basis
15 between those related to the Brown Act violation and those that were not.” (Bell, supra, at 690). Bell
16 made no effort to apportion the fees. He claimed, like Plaintiffs in the instant case, that all the work
17 was necessitated by the Brown Act causes of action.
18 On appeal, the court reversed the trial court’s award of all of Bell’s attorney’s fees. The court
19 found that neither Bell’s counsel, nor the [trial] court, had made a serious and good faith attempt to
20 apportion fees. The court held that if Bell’s counsel could not “further define his billing entries so as
21 to meaningfully enlighten the court of those related to the Brown Act violation, then the trial court
22 should exercise its discretion in assigning a reasonable percentage to the entries, or simply cast them
23 aside.” (Bell, supra, at 690.) What Plaintiffs’ attorneys did here is much worse than “block billing.”
24 On 11-19-20, Plaintiffs filed an 8-page Complaint. The Complaint contained five causes of
25 action: 1) Public Nuisance; 2) Private Nuisance (California Civil Code §§3479, 481); 3) Trespass; 4)
26 Injunctive Relief; and 5) Negligence. Nowhere in the Complaint is 13A mentioned. This is because
27 Plaintiffs’ claims were, and have only been, about what should be done about a 440-foot row of
28 Poplar trees. And specifically, how a line of Poplar trees may constitute a private nuisance. (See the
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1 Complaint, page 3, lines 12 – 16). The word “fire” appears just 3 times in the Complaint. Any fire
2 risk or hazard was simply a footnote. Furthermore, very little time was required on claims of actual
3 property damages totaling approximately $8,000. (This is the stuff of Small Claims court.)
4 On 1-20-22, 14 months after Plaintiffs’ initial Complaint was filed, Plaintiffs’ filed their
5 20-page FAC. The FAC included the same original five causes of action as before, but then added
6 two more legal theories of recovery: 6) Violation of Sonoma Code of Ordinances Section 13-A; and
7 7) Declaratory Relief. Only one cause of action has a fee-shifting provision.
8 The FAC abruptly changed the focus of the litigation from the Poplar trees to potential fire
9 issues. It included allegations, circumstances, and laws that were never mentioned in the Complaint.
10 Suddenly, the FAC now used the word “fire” a total of 63 instances (21 times more than in the
11 Complaint). Suddenly, the FAC is all about how Defendants were aware of fire hazards and violated
12 13A. (See FAC). The alleged violations were only “bare” allegations, meaning there was no
13 evidence of any kind that the alleged violations caused any actual, injury, harm, or damage to
14 Plaintiffs or anyone else. If Plaintiffs were truly concerned about the fire risks and how Defendants
15 were in “violation,” then this would have been the original focus of the Complaint. It simply was not,
16 because again, Plaintiffs’ real focus was and has been on removing the Poplar Trees to improve their
17 view. Throughout this litigation, Plaintiffs, themselves, were in violation of the 13A and, were
18 themselves, contributors to potential fire risks. However, “no one can take advantage of his own
19 wrong” (California Civil Code §3517). Inspector Osbourne: “There were a lot of violations that I
20 wrote up for Mr. Brilliant” (RT 359, lines 14 – 15). Barry Brilliant admits that for at least 5 years, his
21 practice was to pile up tree trunks against the fence line if a tree fell (RT 494, lines 18 – 21). The
22 true and only reason why fire was included in the FAC, was simply because of the fee-shifting
23 provision in 13A. Plaintiffs are not entitled to claim any attorney’s fees that did not arise from
24 the claim of a violation of 13A, assuming 13A applies.
25 Instead of making the required effort to keep track of the time spent on the causes of action,
26 Plaintiffs now claim that it is “too difficult.” How difficult is it to exclude fees which were incurred
27 before 13A was added to the case? How difficult is it to exclude fees regarding arborists? How
28 difficult is it to exclude expert witness fees which are not recoverable under the law? Plaintiffs’
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1 attorneys chose not to allocate fees among the causes of action. Yet, allocation is required by law.
2 This is Plaintiffs’ problem. The phrase “impossible to separate” referred to by the Atkins court
3 (supra) was not intended to cover the situation where the difficulty was caused by the party-seeking-
4 fees’ own failure to properly allocate between causes of action on their billing invoices.
5 PLAINTIFFS ARE NOT ENTITLED TO EXPERT WITNESS FEES
6 UNLESS THE EXPERT WITNESS WAS COURT ORDERED
7 Plaintiffs’ Motion seeks, also erroneously, reimbursement for Plaintiffs’ expert witness fees.
8 However, expert fees are not allowed as an item of costs unless the fees are related to expert
9 witnesses ordered by the court. (CCP§ 1033.5(a)(8). (Emphasis added) The court did not order any
10 expert witnesses in this case. The only other conceivable way to obtain expert witness fees is
11 pursuant to CCP §998 where an Offer of Compromise is made. Here, no §998 Offer of Compromise
12 was ever made by Plaintiffs. Consequently, Plaintiffs’ claim for expert witness fees must fail too.
13 THERE ARE NO COMMON ISSUES OF LAW OR FACT BETWEEN THE CAUSE OF
14 ACTION FOR A “BARE” VIOLATION OF 13A AND ANY OTHER CAUSE OF ACTION
15 Plaintiffs have failed to identify any causes of action which have “common issues of fact or
16 law” with the 13A cause of action. The reason is obvious: there are none.
17 The only disputed issues regarding Plaintiffs’ cause of action for a violation of 13A were: (1)
18 Did Defendants have a duty to remove hazardous vegetation? (2) Did Defendants fail to remove
19 hazardous vegetation? This took over $340,000 of attorney’s fees? Charging clients this kind of
20 money is unconscionable and in violation of RPC, Rule 1.5. The other questions on the 13A jury
21 verdict form were not contested or did not apply. They did not require any attorney time.
22 The only facts Plaintiffs needed to prove a violation of 13A were that Defendants’ property was
23 in an area controlled by 13A and that Defendants had failed to comply with its terms. Neither of these
24 two elements have any commonality or overlap with any factual element of any other cause of action of
25 the FAC. The pleadings control the proof.
26 Regarding the other causes of action, Plaintiffs presented no evidence at trial that they had
27 suffered any injury, harm, or damages as a result of a 13A violation. Without any common factual
28 issues, there is nothing that prevented Plaintiffs’ attorneys from tracking the attorney’s fees incurred on
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1 a 13A violation. Such fees were only minimal. Modern computer billing software is up to the task.
2 THE AMOUNT OF CLAIMED ATTORNEY’S FEES IS OUTRAGEOUS
3 It is hard to imagine anyone authorizing, in advance, substantial work to be done on a case
4 where there were no damages caused to anyone by a 13A violation. It is even harder to imagine a
5 client authorizing a firm to spend nearly $400,000 when their alleged property damages were $7,000
6 to replace the upper fence (RT page 404, lines 11- 15) and $1,000 for cutting up fallen trees into logs
7 (RT page 423, lines 6 – 9). Who would expend this kind of resources to get a judgment which orders
8 no future violations of 13A? (See the Judgment drafted by Mr. Bacho). Who would expend hundreds
9 of thousands of dollars when they, themselves, were in violation of the same ordinance?
10 The trial court has discretion for determining the fees to be awarded to a prevailing party
11 under a fee shifting statute. (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522.) That doesn’t mean
12 the court can just do whatever it wants. The language of 13A provides that “an interested person may
13 institute a civil proceeding for injunctive relief against a violation of the Ordinance for money
14 damages, and for whatever other additional relief the court deems appropriate.” (13A-6.) Here, the
15 court ordered no further violations. What is a fair fee for that?
16 This private right of action (“PAGA”) provision in 13A-6 was intended to encourage private
17 enforcement of the public interest of preventing hazardous vegetation, where the expense of such
18 litigation would otherwise deter private parties from doing so. This language has the same purpose as
19 CCP §1021.5 which allows attorney’s fees to the prevailing party, even in the absence of a prevailing
20 party statute, where a significant benefit to the public interest results, and in the interests of justice the
21 fee should not be paid out of the recovery. (CCP §1021.5; Bowman v. City of Berkeley (2005) 131
22 Cal.App.4th 173,177.) (Here, any benefit was solely for the benefit of Plaintiffs’ private interests.)
23 There was no significant benefit conferred on the public by Plaintiffs’ 13A claim, or even on a
24 large class of persons as a result of Plaintiffs’ judgment. This was personal to Plaintiffs. This
25 lawsuit was primarily about the poplar trees along the common border. The only portion of the
26 judgment that related to 13A requires Defendants to “abate any and all outstanding Notice of
27 Violations” of 13A. The evidence at trial showed that Defendants had made reasonable efforts to
28 comply with the two Notices of Violations issued by County fire. The evidence also showed that
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1 Defendants had called for an inspection several times. No public interest is served by enforcing a law
2 against a party who made good faith and reasonable effort to comply with the law (and who sought an
3 inspection to verify his compliance). The court should deny the request for attorney’s fees based on
4 13A because the evidence showed that no public interest was served.
5 PLAINTFFS ARE NOT ENTITLED TO ATTORNEY’S FEES WHERE THEY
6 FAILED TO PROVE THE TRUTH OF DENIED REQUESTS FOR ADMISSION
7 A propounding party is entitled to an order of reasonable expenses, including attorney’s fees,
8 against the responding party for failing to deny the truth of matters if the propounding party proves at
9 trial that a denied fact of substantial importance was true and the responding party did not have a
10 reasonable ground to believe that it would prevail on the matter, or have other good cause to deny.
11 (CCP §2033.420) (Emphasis added.) (See Hogan and Weber, California Civil Discovery §9.21.)
12 Here, Plaintiffs have never even got to “first base.” Plaintiffs include 19 “facts” in their
13 Separate Statement. However, none of these facts was proven to be true at trial. Plaintiffs failed to
14 show any evidence from the trial proving the truth of the matters denied by Defendants. All
15 Plaintiffs have done is list several categories of evidence where that information supposedly exists.
16 There are no specific citations to any evidence at trial. That is because there is no evidence upon
17 which to cite. Thus, Plaintiffs’ Motion fails. See Exhibit B, attached hereto, for examples. Plaintiffs’
18 RFAs all suffer from the same problem: they are unsupported by any evidence that was proven at trial.
19 Plaintiffs are not entitled to attorney’s fees for Mr. Black’s denial as to facts that were not true. Courts
20 rarely, if ever, award attorney’s fees under this Code section. This is because such claims are so easily
21 defeated. (See Declaration of Michael G. Watters.)
22 LITTLE COURT TIME WAS NEEDED TO PROVE THE VIOLATION OF 13A
23 The only evidence regarding any violations of 13A are the citations, themselves. (Trial
24 Exhibits 58 and 59.) None of Plaintiffs’ experts and witnesses were present before the fire started
25 or during the fire. Even though both parties were equally in violation of 13A, these citations are the
26 only evidence “proving” the violation of 13A. Land surveyors, planners, arborists, real estate agents,
27 and retired fire inspectors were not needed to prove this. The citations speak for themselves. See
28 Evidence Code §1520 and §1523. How much would the Sonoma County DA authorize, in advance,
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1 to prosecute a 13A violation in this case?
2 MR. BACHO GROSSLY OVER-WORKED THE CASE AFTER 13A WAS ADDED
3 The only information gleaned from the 100% redacted invoices served are the initials of the
4 biller and the date that a “service” was recorded. Despite this redaction, there is an obvious story told
5 by the invoices. Once 13A became a cause of action, Mr. Bacho racked up unconscionable fees and
6 costs that were completely unreasonable and unnecessary given that no injury, harm, or damage was
7 caused by any 13A violation.
8 Up to the filing of the Complaint, Mr. Bacho and 1 paralegal charged approximately $3,600 in
9 fees or $1,200/month on average or 1.0% of the total fees. From then up to the filing of the First
10 Amended Complaint, Mr. Bacho, 1 paralegal and another attorney charged approximately $22,500 in
11 fees or $1,600/month on average or 6.6% of the total fees. After the First Amended Complaint, Mr.
12 Bacho, 3 paralegals, and 4 other attorneys charged approximately $317,000 in fees or
13 $21,100/month on average or 92.4% of the total fees. (See Declaration of Timothy Watters.)
14 It is clear from the exorbitant fees claimed, Mr. Bacho’s firm was motivated by the fee-
15 shifting provision of 13A. Their plan, all along was to claim that all of their fees were related. This
16 ultimately led to charging of unconscionable fees. Had there been no fee-shifting provision, this
17 would have not happened.
18 ALLOCATION OF TIME SPENT ON 13A
19 There are other easy methods of allocating the fees related to 13A. The Reporter’s Transcript
20 (“RT”) is the best source to show how much time was actually spent, issue by issue. By reviewing the
21 RT, one can determine just how much time was spent on the 13A issue. From such a review, very
22 little trial time or effort was spent on proving a 13A violation. (See Declaration of Timothy Watters.)
23 This is consistent with proving a “bare” allegation of failure to comply with 13A. Plaintiff’s Motion
24 should be “simply cast aside.” However, if it is not, then the trial court can assign a reasonable
25 percentage to the billing entries (Bell, supra, at 690). After eliminating work done prior to the FAC as
26 well as unauthorized expert witness fees, a reasonable percentage can be ascertained from a review of
27 the RT as well as the Deposition Transcripts.
28 Depending on whether the opening and closing of the trial portions are included in the total
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1 page count, the total percentage of the trial and depositions directly addressing and likely referencing
2 Section 13A ranged from 13.0% to 15.0%. If Jean Kapolchok (whose testimony was improper and
3 unnecessary) is excluded, that number drops to 9.5% (11.0%), meaning 11.0% is the upper limit of
4 what effort could be applicable to 13A. This analysis proves that, at most, only a small portion of time
5 was used to “prove” 13A. Thus, an attorney’s fees awarded under 13A must only be directly associated
6 with time spent on 13A. Given that little time was needed to “prove” a “bare” violation of 13A, the
7 amount applicable to 13A is actually far less than the 11.0% figure. This is consistent with Plaintiffs’
8 case. Plaintiff’s case was redundant, overdone and wasteful. Plaintiffs took 6 days to present a case
9 with property damage of less than $10,000! The fire loss claims had nothing to do with 13A; same
10 with an arborist, a viticulturalist, a land surveyor, a real estate agent, etc.
11 CONCLUSION
12 In his Declaration, Mr. Bacho swears: “I believe the work performed on this file was
13 reasonable under the circumstances” (page 2, lines 13 – 14). How would anyone believe that it is
14 reasonable and necessary for 2 attorneys, charging a combined hourly rate of nearly $800/hour, to sit,
15 day after day, during a week-long-plus trial on a case with less than $10,000 in actual property
16 damage? Who would believe that two elderly clients authorized Mr. Bacho to rack up over $400,000?
17 The last litigation initiated by Plaintiffs, over the same Poplar trees, was in Small Claims court
18 in 2017! And now, suddenly, these same people are going to pay over $400,000 for the privilege?
19 In his Declaration, Mr. Bacho swears that: “All of the attorney’s fees and costs advanced to
20 plaintiffs were presented to them from CFK. Those bills have been reviewed, paid by Plaintiffs and
21 were current as of February 2023” (page 3, lines 1 – 2). (Emphasis added) So, we are to believe that
22 Plaintiffs, who didn’t haul any debris because of expense (RT page 495, lines 18 – 23) paid their
23 attorneys, in full, approximately $226,800 in fees (August 2020 through February 2023)? Really? So,
24 this court is asked to believe that Plaintiffs paid hundreds of thousands of dollars, before trial even
25 started, to litigate a claim with actual damages of less than $10,000 and then further agreed to pay for
26 another $116,300 for trial fees? None of this passes the smell test.
27 In his Declaration, Mr. Bacho swears that the ~$46K worth of fees paid to experts “accurately
28 reflects the recoverable expense” (page 3, lines 3 - 4). Expert witness fees are not recoverable unless
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1 the witnesses were ordered by the court or a §998 offer was made (neither of which happened).
2 What can be discerned from the billings served shows that as soon as 13A was included, Mr.
3 Bacho, went “hog-wild” on the case. Had there been no fee-shifting provision available, Mr. Bacho
4 would have been forced to treat this case appropriately considering the small amount of actual
5 property damages suffered by Plaintiffs—very, very conservatively. The court shouldn’t reward this.
6 Mr. Bacho spent 5.0 hours on the Post-Fee Motion (Plaintiffs’ MPA, page 5, line 23). Rather
7 than taking the time necessary to present a well-supported and well-reasoned Motion, Mr. Bacho
8 chose to redact every single line item of his invoices and to ask the court for every penny. Mr. Bacho
9 chose not to ethically review his invoices to see what could be reasonably allocated under 13A’s fee-
10 shifting provision and to make sure his request was fair and reasonable. Mr. Bacho states: “[I] spent a
11 significant number of hours during the nearly twenty-eight months that this case took to get to trial”
12 (Plaintiff’s MPA, page 5, lines 13 – 14). So, apparently, Mr. Bacho was just able to skim those
13 “twenty-eight months” of work, the over 1,000 hours claimed, and all of the deposition and trial
14 testimony to state, under penalty of perjury, to claim that he and his firm should be paid for
15 everything, and all as “prevailing parties under 13A”? (Plaintiffs’ MPA, page 4, lines 20 – 22).
16 Mr. Bacho violated Defendants’ due process rights by providing no proof. There is nothing
17 reasonable about Mr. Bacho and his firm’s fees in this case. Defendants were already hit with
18 compensatory damages that exponentially exceeded any actual property damage. Defendants were
19 also hit with huge punitive damages that doubled the award. Plaintiffs have already uprooted and
20 removed all of the Poplar trees. (See the Declaration of Joyce Whitaker.) And now, Mr. Bacho
21 “believes” Defendants should get hit again, effectively tripling the total damage award. Is it
22 reasonable that Defendants should pay $1.4M for a fire that caused less than $10,000 in property
23 damage (a few fenceposts of an at least 17-year-old fence), for Poplar trees that had not yet fallen,
24 and for a “bare” violation of 13A which caused no injury, harm, or actual damage of any kind?
25 For the foregoing reasons, and in particular, Plaintiffs’ attorneys’ gross due process
26 violations, ex parte communication, violation of B&P Code §6068 and various RPC’s, and improper
27 requests for expert witness fees, the court should deny Plaintiffs’ request for fees in its entirety.
28 However, if the court disagrees, then, at the very most, Plaintiffs could get is 11% of the total
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1 invoices after eliminating the work charged before 13A was added to the FAC in the amount of
2 $26,100 and expert witness fees of $46,365.92. 11% of the remaining balance totals $41,170.47.
3
4 Respectfully submitted,
5
6 Dated: May 12, 2023 By: __________________________________
GRADEN R. TAPLEY
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1 O’BRIEN WATTERS & DAVIS, LLP Michael G. Watters, Esq. (CSB No. 63140) 2 Graden R. Tapley, Esq. (CSB No. 222636) 1550 Airport Blvd., Suite 201 3 Santa Rosa, CA 95403-0918 (707) 545-7010 4 Attorneys for Defendants, 5 Mitchell Black, Deanne Black, Black Knight Vineyards, LLC 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SONOMA 10 11 BARRY BRILLIANT, an individual ; and Case No. SCV-267406 DAGMAR K. HOHENECK-SMITH, an 12 DEFENDANTS’ MOTION TO STRIKE / individual and as trustee of THE DAGMAR 13 HOHENECK-SMITH TRUST dated December TAX COSTS AND OPPOSITION TO 14, 2010, PLAINTIFFS’ MOTION FOR 14 ATTORNEY’S FEES AND COSTS Plaintiffs, 15 vs. 16 MITCHELL G. BLACK, an individual and dba 17 BLACK KNIGHT VINEYARDS ; DEANNE G. BLACK, an individual and dba BLACK 18 KNIGHT VINEYARDS ; and DOES ONE through TWENTY, inclusive, 19 20 Defendants. ______________________________________/ 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 Cover Page 1 TABLE OF CONTENTS 2 Opening Summary …………………………………………………………………… page 1 3 Plaintiffs Failed to Submit/Serve any Admissible Evidence …………………………… page 1 4 13A is Not Applicable to Defendants’ Property …………………………………… page 3 5 Plaintiffs Failed to Meet Their Burden of Proof …………………………………… page 4 6 Plaintiff Failed to Establish that Their Fees were Reasonable and Necessary …… page 5 7 Serving Redacted Invoices on Defendants Cannot be Condoned …………………… page 6 8 Plaintiffs’ Claim that All of Their Fees are “Inextricably Intertwined” is False …… page 6 9 Plaintiffs are Not Entitled to Expert Witness Fees Unless Court Ordered …………… page 9 10 There are No Common Issues of Law Between 13A and Other Causes of Action …… page 9 11 The Amount of Claimed Attorney’s Fees is Outrageous …………………………… page 10 12 Plaintiffs Failed to Prove the Truth of Denied Requests for Admission …………… page 11 13 Little Court Time was Needed to Prove the Violation of 13A …………………… page 11 14 Mr. Bacho Grossly Over-Worked the Case After 13A was Added …………………… page 12 15 Allocation of Time Spent on 13A …………………………………………………… page 12 16 Conclusion …………………………………………………………………………… page 13 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS FOR DEFENDANTS’ MOTION TO STRIKE AND OPPOSITION TO ATTORNEY’S FEES Brilliant v. Black, SCV-267406 i 1 CASES 2 Atkins v. Enterprise Rent-A-Car (2000) 79 Cal.App.4th 1127, 1133 …………………… page 7 3 Bell v. Vista Unified School (2000) 82 Cal.App.4th 672 …………………………… page 7 4 Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173,177 …………………… page 10 5 County of Los Angeles v. Superior Court (2012) 211 Cal.App.4th 57, 67 …………… page 6 6 Guillory v. Hill, (2019) 36 Cal. App. 5th 802, 811 …………………………………… page 4 7 Los Angeles County Board of Supervisors v. 8 Superior court of Los Angeles County (2016) 2 Cal.5th 282, 293 …………… page 6 9 Martino v. Denevi (1986) 182 Cal.App.3d 553, 558 …………………………………… page 5 10 Mather Zaheri Corp. v. New motor Vehicle Bd. (1997) 55 Cal.App.4th 1305, 1317. …… page 2 11 Melnyk v. Robledo (1976) 64 Cal.App.3d 606, 618 …………………………………… page 4 12 Ramon v. County of Santa Clara (2009) 173 Cal.App.4th 915, 925 …………………… page 4 13 Roe v. Halbig (2018) 29 Cal.App.5th 286, 311 …………………………………… page 4 14 Sargon Enterprises, Inc. v. Univ. of S. California, (2012) 55 Cal. 4th 747, 773 …… page 3 15 Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48 …………………………… page 4 16 Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522 …………………………………… page 10 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS FOR DEFENDANTS’ MOTION TO STRIKE AND OPPOSITION TO ATTORNEY’S FEES Brilliant v. Black, SCV-267406 ii 1 STATUTES 2 Business and Professions Code 3 §6068 …………………………………………………………………………… page 2 4 California Civil Code 5 §481 …………………………………………………………………………… page 7 6 §3479 …………………………………………………………………………… page 7 7 §3517 …………………………………………………………………………… page 8 8 Canons of Judicial Ethics …………………………………………………………… page 2 9 Code of Civil Procedure 10 §998 …………………………………………………………………………… page 9 11 §1005 …………………………………………………………………………… page 1 12 §1021 …………………………………………………………………………… page 4 13 §1033 …………………………………………………………………………… page 4 14 §2033 …………………………………………………………………………… page 11 15 Evidence Code 16 §350 …………………………………………………………………………… page 2 17 §952 …………………………………………………………………………… page 6 18 §1520 …………………………………………………………………………… page 11 19 §1523 …………………………………………………………………………… page 11 20 Rules of Professional Conduct 21 Rule 1.6 …………………………………………………………………… page 2 22 Rule 3.5 …………………………………………………………………… page 2 23 24 25 26 27 28 TABLE OF CONTENTS FOR DEFENDANTS’ MOTION TO STRIKE AND OPPOSITION TO ATTORNEY’S FEES Brilliant v. Black, SCV-267406 iii 1 OTHERS 2 Declaration of Ed Lear …………………………………………………………… page 2 3 Declaration of Graden Tapley …………………………………………………………… page 2 4 Declaration of Joyce Whitaker (filed in Support of Motion for a New Trial) …… page 14 5 Declaration of Michael G. Watters …………………………………………………… page 11 6 Declaration of Timothy Watters …………………………………………………… page 12 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS FOR DEFENDANTS’ MOTION TO STRIKE AND OPPOSITION TO ATTORNEY’S FEES Brilliant v. Black, SCV-267406 iv 1 OPENING SUMMARY 2 Plaintiff’s Motion for Attorney’s Fees and Costs (“Plaintiffs’ Motion”) should be denied, 3 in full, for the following reasons: Section 13A (“13A”) and its fee-shifting provision don’t apply to 4 Defendants’ real property, failure to submit and serve admissible evidence, failure to meet burden of 5 proof, failure to establish that fees and costs were reasonable and necessary, failure to establish 6 common issues among the causes of action, failure to prove the truth of denied requests for 7 admission, and erroneously asking for expert witness fees, among other things. 8 If the court finds some applicability regarding 13A and its fee-shifting provision and ignores 9 Plaintiffs’ gross due process violations, then, at the very most, and without any challenge as to why 10 Plaintiffs had 5 attorneys and 3 paralegals working on the case with less than $10,000 in actual 11 property damage, the most Plaintiffs could be awarded is 11% of the total invoices (based on the 12 percentage of time spent at trial and in depositions on the subject of 13A) after the following 13 reductions: work performed prior to the 13A cause of action was added to the FAC in the amount of 14 $26,100 and expert witness fees of $46,365.92. These would total $41,170.47. 15 DEFENDANTS’ OPPOSITION 16 Plaintiffs’ Motion is solely based on Sonoma County Code of Ordinance 13A-8 which 17 provides for “reasonable attorney’s fees and costs.” (Emphasis added) (A copy of Section 13A is 18 attached hereto as Exhibit A.) 19 PLAINTIFFS FAILED TO SUBMIT/SERVE ANY ADMISSIBLE EVIDENCE 20 Plaintiffs failed to submit any admissible documentary evidence in support of their claim that 21 the attorney’s fees were reasonable in amount. The information submitted was either inadmissible 22 and/or submitted to the court in violation of CCP §1005 and the Rules of Professional Conduct 23 (“RPC”) or redacted so as to prevent any meaningful review. 24 Plaintiffs’ attorneys submitted unredacted copies of Plaintiffs’ attorneys’ invoices to the court. 25 Copies of these invoices were not filed with the court clerk and apparently were provided directly to 26 the court’s Judicial Assistant. “Unredacted copies of this report are also being provided only to the 27 court for its review.” (Declaration of Davin Bacho (“Bacho’s Declaration”), page 2, line 4.) 28 (Emphasis added) This is a gross violation of due process of law including CCP §1005, (b): “all DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 1 1 moving and supporting papers shall be served and filed at least 16 court days before the hearing.” 2 (Emphasis added) It is also an ex parte contact with the court in violation of RPC, Rule 3.5(b)(4) The 3 court has no authority to conduct an in-camera review of attorney-client privileged material or ex 4 parte communication. (B&P Code §6068(e)(1). See also RPC, Rule 1.6 and Canons of Judicial 5 Ethics.) No unredacted invoices were provided to Defendants in violation of fundamental due 6 process of the rule against ex parte communication. (See the Declaration of Ed Lear.) 7 The invoices provided to Defendants were 100% redacted of all entries showing the services 8 provided to Plaintiffs. (A true and correct copy of the billing invoices served on Defendants is 9 attached as Exhibit A to the Declaration of Graden Tapley,). By serving only redacted invoices on 10 Defendants, Mr. Bacho has denied Defendants the opportunity to review the invoices and the entries 11 showing what was supposedly done and how long it took, thereby preventing Defendants from having 12 the ability to challenge the reasonableness and necessity of the claimed fees. Apparently, the Court 13 gets to review all 56 pages and then determine what was reasonable and necessary and applicable to 14 Section 13A (“13A”) without any input from Defendants—an outrageous violation of due process. 15 A lawyer shall not directly or indirectly communicate with the judge upon the merits of a 16 contested matter pending before the judge with a writing except with a copy thereof furnished to all 17 other counsel. (California RPC, Rule 3.5(b)(4).) (Emphasis added) The prohibition of communication 18 by counsel with the court outside the presence of the other party is a rule of [fundamental] fairness 19 meant to insure that all sides will be heard. (Mather Zaheri Corp. v. New motor Vehicle Bd. (1997) 55 20 Cal.App.4th 1305, 1317.) Why have a trial unless it is a fair trial? 21 Mr. Bacho’s ex parte communication with the court was intended to obtain an unfair 22 advantage for his clients by getting the court to consider the invoices without Defendants’ ability to 23 object or comment about them. Mr. Bacho was well aware that such conduct is a violation of the 24 Defendants’ due process rights because he recently sent correspondence to opposing counsel. (See 25 Mr. Bacho’s written explanation of the prohibition of ex parte communications as an element of due 26 process fairness attached as Exhibit B to the Declaration of Graden Tapley.) 27 The court may only consider admissible evidence in support of Plaintiffs’ Motion. (Evidence 28 Code §350.) Defendants actually get to fully participate in the process. Evidence submitted to the DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 2 1 court in an ex parte communication is in violation of a party’s due process rights and the RPC and 2 can hardly be “admissible.” 3 In the absence of any admissible evidence, Plaintiffs’ Motion must fail. While the court has 4 discretion to determine whether evidence is admissible or inadmissible, that discretion is not 5 unlimited. The discretion of a trial judge is subject to the confines of legal principles, which is not the 6 equivalent of allowing in whatever evidence the court wants to, or “if it feels like it.” (Sargon 7 Enterprises, Inc. v. Univ. of S. California, (2012) 55 Cal. 4th 747, 773). 8 There is no legal principle which would allow the court to “elect” to consider Plaintiffs’ ex 9 parte, unredacted billing invoices as admissible evidence. (CCP §1005 and the Canon.) The court 10 doesn’t have such discretion. To do so, would make a mockery of due process. Likewise, there is also 11 no legal basis upon which the court could choose to grant Plaintiffs’ Motion. 12 13A IS NOT APPLICABLE TO DEFENDANTS’ REAL PROPERTY AND 13 THEREFORE ITS FEE-SHIFTING PROVISION DOES NOT APPLY 14 13A “applies a duty to maintain defensible space and abate hazardous vegetation on improved 15 parcels in the unincorporated area of the county outside of the state responsibility area, and to 16 unimproved parcels within the local and state responsibility areas.” (Emphasis added) The specific 17 requirements for parcels in the “local responsibility area” are enumerated in 13A-4(a). The specific 18 requirements for unimproved parcels in the state responsibility area are enumerated in 13A-4(b). There 19 are no specific requirements listed in 13A for improved parcels in the state responsibility area. 20 13A specifically states that improved parcels in the state responsibility area are governed by 21 “Title 14 of the California Code of Regulations Sections 1299.01 – 1299.05.” These Code of 22 Regulations sections do not provide for a private right of action by an interested person, and so, 23 do not provide for fee-shifting. 24 The evidence at trial confirmed that Defendants’ property was an improved parcel in the state 25 responsibility area. Thus, Defendants’ parcel is not governed by 13A and the attorney’s fee-shifting 26 provision does not apply. There is no language in either 13A or the Code of Regulations which states 27 that an interested person can bootstrap a claim for a violation of the Code of Regulations by asserting 28 that it was a violation of 13A. Because 13A does not regulate Defendants’ real property, there is no DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 3 1 legal basis providing for fee-shifting and Plaintiffs are not entitled to an award of any attorney’s 2 fees. The “American Rule” applies. See CCP §1021. 3 PLAINTIFFS FAILED TO MEET THEIR BURDEN OF PROOF THAT THE FEES 4 AND COSTS WERE REASONABLE AND NECESSARY 5 California uses the “lodestar” method to determine the amount of attorney’s fees to award to a 6 prevailing party. The first step in this the lodestar method is to determine the loadstar amount. This is 7 determined by multiplying the hours reasonably worked by a reasonable hourly rate for those 8 services. (Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48.) The lodestar figure anchors an 9 analysis of the award of attorney’s fees to an objective determination, ensuring that the judge will not 10 just award some arbitrary amount. (Serrano v. Priest (Serrano III) supra, at 49 n23.) Because the 11 lodestar figure is “fundamental,” a trial court’s failure to calculate it is reversable error. (Press v. 12 Lucky Stores, Inc. (1983) 34 Cal.3d 311.) 13 The party seeking fees has the burden of proving what tasks were performed and the amount 14 of time expended to perform those tasks. (Ramon v. County of Santa Clara (2009) 173 Cal.App.4th 15 915, 925.) To meet this burden, the party seeking fees must demonstrate that the fees incurred were 16 reasonably necessary to the conduct of the litigation and reasonable in amount. (CCP §1033.5(c)(5); 17 Melnyk v. Robledo (1976) 64 Cal.App.3d 606, 618.) Plaintiffs cannot meet this burden. 18 A party is only entitled to be compensated for services that a reasonable and prudent lawyer 19 would have done. (Roe v. Halbig (2018) 29 Cal.App.5th 286, 311.) Time that is not properly billed to 20 one’s own client is also not properly billed to one’s adversary. Just because Plaintiffs won the case 21 does not mean that everything their attorneys did was done to enforce 13A. 22 The party seeking fees must submit and serve evidence supporting the hours worked and the 23 rates claimed. Counsel “should maintain billing time records in a manner that will enable a reviewing 24 court to identify distinct claims.” Counsel should also make a good-faith effort to exclude from the 25 fee request hours that are excessive, redundant, or otherwise unnecessary, just as a lawyer in private 26 practice ethically is obligated to exclude such hours from his fee submission. (Guillory v. Hill, (2019) 27 36 Cal. App. 5th 802, 811.) Such evidence must be served on Defendants. Due process requires this. 28 Plaintiffs failed to serve Defendants with unredacted invoices. DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 4 1 PLAINTIFFS FAILED TO ESTABLISH THAT THEIR CLAIMED ATTORNEY’S FEES 2 WERE REASONABLE AND NECESSARY 3 The party seeking attorney’s fees bears the burden of proof as to the reasonableness and 4 necessity of the fees. To meet that burden, the party must present “(1) evidence, documentary and 5 oral, of the services actually performed; and (2) expert opinion by [the applicant] and other lawyers, 6 as to what would be a reasonable fee for such services.” (Martino v. Denevi (1986) 182 Cal.App.3d 7 553, 558.) (Emphasis added) 8 According to Plaintiffs: “Here, the proof required for the claims under 13A were identical to 9 that necessary for the nuisance, trespass, and negligence claims. In addition, the proof necessary for 10 injunctive relief under 13A was intertwined with that necessary for injunctive relief with respect to 11 the hazards posed by the poplar trees. The attorney fees and costs associated with the entire case 12 were necessary to establish Plaintiffs’ case under 13A so that no allocation of fees amongst the 13 claims is necessary. As prevailing parties under 13A, Plaintiffs are entitled to all of their reasonable 14 attorney fees and costs incurred in this matter” (Plaintiffs’ Memorandum of Points and Authorities in 15 Support of Motion for Attorneys’ Fees, Costs, and Expenses of Proof (“Plaintiffs’ MPA”), page 4, 16 lines 16 – 22). (Emphasis added) All such claims are conclusory. 17 This statement under the heading of “Allocation is Unnecessary,” is, of course, false, 18 misleading, and completely unsupportable by the record. The Complaint made no mention of 13A. 19 The first mention of 13A was in the First Amended Complaint, filed 14 months later. 20 Plaintiffs’ claims are overblown. For example, their arborist had nothing to do with 13A 21 nor did an arborist have anything to do with any of Mitchell Black’s responses to Request for 22 Admissions. There is nothing “identical” about such claims. 23 Mr. Bacho asks the court to award “the full amount of time and the billed hourly rates on this 24 case” (Plaintiffs’ MPA, page 5, line 17) for 5 attorneys and 3 paralegals to work up nearly $400,000 25 on a case with less than $10,000 in actual property damage for which his clients have no standing to 26 recover anyways. (Emphasis Added) That is because Plaintiffs are not the real parties in interest. See 27 Trial Exhibit 85 and Defendants’ Motion for Judgment on the Pleadings. 28 Mr. Bacho falsely claims: “Attached as Exhibit B is a true and correct copy of the hours spent DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 5 1 and rate and work performed in this matter.” However, every single billing entry is completely 2 redacted except for the biller’s initials and time recorded. Furthermore, only a summary invoice was 3 provided, not the monthly invoices, themselves. The redacted invoices hide all references to what 4 tasks were performed; they are utterly useless. It is impossible to determine what work was done, 5 whether the time recorded was reasonable in duration, and whether the tasks were reasonably 6 necessary to achieve Plaintiffs’ objectives, or even if the tasks were in any way related to 13A. 7 “In the absence of such crucial information as the number of hours worked, the billing rates, 8 types of issues dealt with and the appearances made on behalf of the client’s behalf, the trial court is 9 placed in the position of simply guessing at the actual value of the attorney’s services. That practice is 10 unacceptable and cannot be the basis for an award of fees.” (Martino v. Denevi (1982), supra at 558.) 11 Plaintiffs are asking this court to guess which the court cannot. It is not proper for the court to guess. 12 SERVING REDACTED INVOICES ON DEFENDANTS CANNOT BE CONDONED 13 Attorneys send billing invoices for the purpose of being paid for their work. For that reason, 14 they generally do not contain protected attorney work-product. (See County of Los Angeles v. 15 Superior Court (2012) 211 Cal.App.4th 57, 67). This is especially true after the trial is over and any 16 work-product has already been revealed. Moreover, most entries generally do not contain confidential 17 communications, but to the extent they do, these can be redacted. To be protected by the privilege, the 18 communication must be confidential and have some relationship with information conveyed for the 19 purpose of the representation. (Evidence Code §952; Los Angeles County Board of Supervisors v. 20 Superior court of Los Angeles County (2016) 2 Cal.5th 282, 293.) 21 When an attorney is claiming $340,000 in fees, the court needs to ask: “Why did the attorney 22 delete all descriptions of the work recorded on the invoices that were served?” The real invoices must 23 be subject to careful review by the opposition. Due process of law requires this. The only reason Mr. 24 Bacho did that is because the billing entries do not support Plaintiffs’ claim for attorney’s fees. 25 PLAINTFFS’ CLAIM THAT ALL OF THEIR ATTORNEY’S FEES 26 ARE “INEXTRICABLY INTERTWINED” IS FALSE 27 When a cause of action for which attorney’s fees is allowed by statute, happens to be joined 28 with other causes of action for which attorney’s fees are not permitted, the party seeking an award of DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 6 1 fees may only recover on the cause of action for which fees are permitted and must apportion 2 fees accordingly. Upon determining that an award of attorney’s fees is appropriate under a fee- 3 shifting statute, apportionment of fees and costs rests with the sound discretion of the trial court. 4 (Atkins v. Enterprise Rent-A-Car (2000) 79 Cal.App.4th 1127, 1133.) (“The issue of apportionment of 5 fees in such cases rests within the trial court’s sound discretion.” Plaintiffs’ MPA, page 4, lines 13 – 6 14).) An apportionment is not required when the claims for relief are so intertwined that it would be 7 impracticable, if not impossible, to separate the attorney’s time into compensable and non- 8 compensable units. (Atkins v. Enterprise Rent-A-Car, supra, at 1133.) That is not the case here. 9 The obligation to apportion set forth in the Atkins v. Enterprise Rent-A-Car court was 10 interpreted in Bell v. Vista Unified School (2000) 82 Cal.App.4th 672, which is close to the present 11 case. In Bell, plaintiff brought a complaint containing 4 causes of action for a violation of the Brown 12 Act, and 11 other causes of action. Only the Brown Act had an attorney’s fee shifting provision. 13 In support of Bell’s motion for attorney’s fees, he submitted invoices composed of “block 14 billing” entries which were “virtually impossible to break down hours on a task-by-task basis 15 between those related to the Brown Act violation and those that were not.” (Bell, supra, at 690). Bell 16 made no effort to apportion the fees. He claimed, like Plaintiffs in the instant case, that all the work 17 was necessitated by the Brown Act causes of action. 18 On appeal, the court reversed the trial court’s award of all of Bell’s attorney’s fees. The court 19 found that neither Bell’s counsel, nor the [trial] court, had made a serious and good faith attempt to 20 apportion fees. The court held that if Bell’s counsel could not “further define his billing entries so as 21 to meaningfully enlighten the court of those related to the Brown Act violation, then the trial court 22 should exercise its discretion in assigning a reasonable percentage to the entries, or simply cast them 23 aside.” (Bell, supra, at 690.) What Plaintiffs’ attorneys did here is much worse than “block billing.” 24 On 11-19-20, Plaintiffs filed an 8-page Complaint. The Complaint contained five causes of 25 action: 1) Public Nuisance; 2) Private Nuisance (California Civil Code §§3479, 481); 3) Trespass; 4) 26 Injunctive Relief; and 5) Negligence. Nowhere in the Complaint is 13A mentioned. This is because 27 Plaintiffs’ claims were, and have only been, about what should be done about a 440-foot row of 28 Poplar trees. And specifically, how a line of Poplar trees may constitute a private nuisance. (See the DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 7 1 Complaint, page 3, lines 12 – 16). The word “fire” appears just 3 times in the Complaint. Any fire 2 risk or hazard was simply a footnote. Furthermore, very little time was required on claims of actual 3 property damages totaling approximately $8,000. (This is the stuff of Small Claims court.) 4 On 1-20-22, 14 months after Plaintiffs’ initial Complaint was filed, Plaintiffs’ filed their 5 20-page FAC. The FAC included the same original five causes of action as before, but then added 6 two more legal theories of recovery: 6) Violation of Sonoma Code of Ordinances Section 13-A; and 7 7) Declaratory Relief. Only one cause of action has a fee-shifting provision. 8 The FAC abruptly changed the focus of the litigation from the Poplar trees to potential fire 9 issues. It included allegations, circumstances, and laws that were never mentioned in the Complaint. 10 Suddenly, the FAC now used the word “fire” a total of 63 instances (21 times more than in the 11 Complaint). Suddenly, the FAC is all about how Defendants were aware of fire hazards and violated 12 13A. (See FAC). The alleged violations were only “bare” allegations, meaning there was no 13 evidence of any kind that the alleged violations caused any actual, injury, harm, or damage to 14 Plaintiffs or anyone else. If Plaintiffs were truly concerned about the fire risks and how Defendants 15 were in “violation,” then this would have been the original focus of the Complaint. It simply was not, 16 because again, Plaintiffs’ real focus was and has been on removing the Poplar Trees to improve their 17 view. Throughout this litigation, Plaintiffs, themselves, were in violation of the 13A and, were 18 themselves, contributors to potential fire risks. However, “no one can take advantage of his own 19 wrong” (California Civil Code §3517). Inspector Osbourne: “There were a lot of violations that I 20 wrote up for Mr. Brilliant” (RT 359, lines 14 – 15). Barry Brilliant admits that for at least 5 years, his 21 practice was to pile up tree trunks against the fence line if a tree fell (RT 494, lines 18 – 21). The 22 true and only reason why fire was included in the FAC, was simply because of the fee-shifting 23 provision in 13A. Plaintiffs are not entitled to claim any attorney’s fees that did not arise from 24 the claim of a violation of 13A, assuming 13A applies. 25 Instead of making the required effort to keep track of the time spent on the causes of action, 26 Plaintiffs now claim that it is “too difficult.” How difficult is it to exclude fees which were incurred 27 before 13A was added to the case? How difficult is it to exclude fees regarding arborists? How 28 difficult is it to exclude expert witness fees which are not recoverable under the law? Plaintiffs’ DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 8 1 attorneys chose not to allocate fees among the causes of action. Yet, allocation is required by law. 2 This is Plaintiffs’ problem. The phrase “impossible to separate” referred to by the Atkins court 3 (supra) was not intended to cover the situation where the difficulty was caused by the party-seeking- 4 fees’ own failure to properly allocate between causes of action on their billing invoices. 5 PLAINTIFFS ARE NOT ENTITLED TO EXPERT WITNESS FEES 6 UNLESS THE EXPERT WITNESS WAS COURT ORDERED 7 Plaintiffs’ Motion seeks, also erroneously, reimbursement for Plaintiffs’ expert witness fees. 8 However, expert fees are not allowed as an item of costs unless the fees are related to expert 9 witnesses ordered by the court. (CCP§ 1033.5(a)(8). (Emphasis added) The court did not order any 10 expert witnesses in this case. The only other conceivable way to obtain expert witness fees is 11 pursuant to CCP §998 where an Offer of Compromise is made. Here, no §998 Offer of Compromise 12 was ever made by Plaintiffs. Consequently, Plaintiffs’ claim for expert witness fees must fail too. 13 THERE ARE NO COMMON ISSUES OF LAW OR FACT BETWEEN THE CAUSE OF 14 ACTION FOR A “BARE” VIOLATION OF 13A AND ANY OTHER CAUSE OF ACTION 15 Plaintiffs have failed to identify any causes of action which have “common issues of fact or 16 law” with the 13A cause of action. The reason is obvious: there are none. 17 The only disputed issues regarding Plaintiffs’ cause of action for a violation of 13A were: (1) 18 Did Defendants have a duty to remove hazardous vegetation? (2) Did Defendants fail to remove 19 hazardous vegetation? This took over $340,000 of attorney’s fees? Charging clients this kind of 20 money is unconscionable and in violation of RPC, Rule 1.5. The other questions on the 13A jury 21 verdict form were not contested or did not apply. They did not require any attorney time. 22 The only facts Plaintiffs needed to prove a violation of 13A were that Defendants’ property was 23 in an area controlled by 13A and that Defendants had failed to comply with its terms. Neither of these 24 two elements have any commonality or overlap with any factual element of any other cause of action of 25 the FAC. The pleadings control the proof. 26 Regarding the other causes of action, Plaintiffs presented no evidence at trial that they had 27 suffered any injury, harm, or damages as a result of a 13A violation. Without any common factual 28 issues, there is nothing that prevented Plaintiffs’ attorneys from tracking the attorney’s fees incurred on DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 9 1 a 13A violation. Such fees were only minimal. Modern computer billing software is up to the task. 2 THE AMOUNT OF CLAIMED ATTORNEY’S FEES IS OUTRAGEOUS 3 It is hard to imagine anyone authorizing, in advance, substantial work to be done on a case 4 where there were no damages caused to anyone by a 13A violation. It is even harder to imagine a 5 client authorizing a firm to spend nearly $400,000 when their alleged property damages were $7,000 6 to replace the upper fence (RT page 404, lines 11- 15) and $1,000 for cutting up fallen trees into logs 7 (RT page 423, lines 6 – 9). Who would expend this kind of resources to get a judgment which orders 8 no future violations of 13A? (See the Judgment drafted by Mr. Bacho). Who would expend hundreds 9 of thousands of dollars when they, themselves, were in violation of the same ordinance? 10 The trial court has discretion for determining the fees to be awarded to a prevailing party 11 under a fee shifting statute. (Vella v. Hudgins (1984) 151 Cal.App.3d 515, 522.) That doesn’t mean 12 the court can just do whatever it wants. The language of 13A provides that “an interested person may 13 institute a civil proceeding for injunctive relief against a violation of the Ordinance for money 14 damages, and for whatever other additional relief the court deems appropriate.” (13A-6.) Here, the 15 court ordered no further violations. What is a fair fee for that? 16 This private right of action (“PAGA”) provision in 13A-6 was intended to encourage private 17 enforcement of the public interest of preventing hazardous vegetation, where the expense of such 18 litigation would otherwise deter private parties from doing so. This language has the same purpose as 19 CCP §1021.5 which allows attorney’s fees to the prevailing party, even in the absence of a prevailing 20 party statute, where a significant benefit to the public interest results, and in the interests of justice the 21 fee should not be paid out of the recovery. (CCP §1021.5; Bowman v. City of Berkeley (2005) 131 22 Cal.App.4th 173,177.) (Here, any benefit was solely for the benefit of Plaintiffs’ private interests.) 23 There was no significant benefit conferred on the public by Plaintiffs’ 13A claim, or even on a 24 large class of persons as a result of Plaintiffs’ judgment. This was personal to Plaintiffs. This 25 lawsuit was primarily about the poplar trees along the common border. The only portion of the 26 judgment that related to 13A requires Defendants to “abate any and all outstanding Notice of 27 Violations” of 13A. The evidence at trial showed that Defendants had made reasonable efforts to 28 comply with the two Notices of Violations issued by County fire. The evidence also showed that DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 10 1 Defendants had called for an inspection several times. No public interest is served by enforcing a law 2 against a party who made good faith and reasonable effort to comply with the law (and who sought an 3 inspection to verify his compliance). The court should deny the request for attorney’s fees based on 4 13A because the evidence showed that no public interest was served. 5 PLAINTFFS ARE NOT ENTITLED TO ATTORNEY’S FEES WHERE THEY 6 FAILED TO PROVE THE TRUTH OF DENIED REQUESTS FOR ADMISSION 7 A propounding party is entitled to an order of reasonable expenses, including attorney’s fees, 8 against the responding party for failing to deny the truth of matters if the propounding party proves at 9 trial that a denied fact of substantial importance was true and the responding party did not have a 10 reasonable ground to believe that it would prevail on the matter, or have other good cause to deny. 11 (CCP §2033.420) (Emphasis added.) (See Hogan and Weber, California Civil Discovery §9.21.) 12 Here, Plaintiffs have never even got to “first base.” Plaintiffs include 19 “facts” in their 13 Separate Statement. However, none of these facts was proven to be true at trial. Plaintiffs failed to 14 show any evidence from the trial proving the truth of the matters denied by Defendants. All 15 Plaintiffs have done is list several categories of evidence where that information supposedly exists. 16 There are no specific citations to any evidence at trial. That is because there is no evidence upon 17 which to cite. Thus, Plaintiffs’ Motion fails. See Exhibit B, attached hereto, for examples. Plaintiffs’ 18 RFAs all suffer from the same problem: they are unsupported by any evidence that was proven at trial. 19 Plaintiffs are not entitled to attorney’s fees for Mr. Black’s denial as to facts that were not true. Courts 20 rarely, if ever, award attorney’s fees under this Code section. This is because such claims are so easily 21 defeated. (See Declaration of Michael G. Watters.) 22 LITTLE COURT TIME WAS NEEDED TO PROVE THE VIOLATION OF 13A 23 The only evidence regarding any violations of 13A are the citations, themselves. (Trial 24 Exhibits 58 and 59.) None of Plaintiffs’ experts and witnesses were present before the fire started 25 or during the fire. Even though both parties were equally in violation of 13A, these citations are the 26 only evidence “proving” the violation of 13A. Land surveyors, planners, arborists, real estate agents, 27 and retired fire inspectors were not needed to prove this. The citations speak for themselves. See 28 Evidence Code §1520 and §1523. How much would the Sonoma County DA authorize, in advance, DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 11 1 to prosecute a 13A violation in this case? 2 MR. BACHO GROSSLY OVER-WORKED THE CASE AFTER 13A WAS ADDED 3 The only information gleaned from the 100% redacted invoices served are the initials of the 4 biller and the date that a “service” was recorded. Despite this redaction, there is an obvious story told 5 by the invoices. Once 13A became a cause of action, Mr. Bacho racked up unconscionable fees and 6 costs that were completely unreasonable and unnecessary given that no injury, harm, or damage was 7 caused by any 13A violation. 8 Up to the filing of the Complaint, Mr. Bacho and 1 paralegal charged approximately $3,600 in 9 fees or $1,200/month on average or 1.0% of the total fees. From then up to the filing of the First 10 Amended Complaint, Mr. Bacho, 1 paralegal and another attorney charged approximately $22,500 in 11 fees or $1,600/month on average or 6.6% of the total fees. After the First Amended Complaint, Mr. 12 Bacho, 3 paralegals, and 4 other attorneys charged approximately $317,000 in fees or 13 $21,100/month on average or 92.4% of the total fees. (See Declaration of Timothy Watters.) 14 It is clear from the exorbitant fees claimed, Mr. Bacho’s firm was motivated by the fee- 15 shifting provision of 13A. Their plan, all along was to claim that all of their fees were related. This 16 ultimately led to charging of unconscionable fees. Had there been no fee-shifting provision, this 17 would have not happened. 18 ALLOCATION OF TIME SPENT ON 13A 19 There are other easy methods of allocating the fees related to 13A. The Reporter’s Transcript 20 (“RT”) is the best source to show how much time was actually spent, issue by issue. By reviewing the 21 RT, one can determine just how much time was spent on the 13A issue. From such a review, very 22 little trial time or effort was spent on proving a 13A violation. (See Declaration of Timothy Watters.) 23 This is consistent with proving a “bare” allegation of failure to comply with 13A. Plaintiff’s Motion 24 should be “simply cast aside.” However, if it is not, then the trial court can assign a reasonable 25 percentage to the billing entries (Bell, supra, at 690). After eliminating work done prior to the FAC as 26 well as unauthorized expert witness fees, a reasonable percentage can be ascertained from a review of 27 the RT as well as the Deposition Transcripts. 28 Depending on whether the opening and closing of the trial portions are included in the total DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 12 1 page count, the total percentage of the trial and depositions directly addressing and likely referencing 2 Section 13A ranged from 13.0% to 15.0%. If Jean Kapolchok (whose testimony was improper and 3 unnecessary) is excluded, that number drops to 9.5% (11.0%), meaning 11.0% is the upper limit of 4 what effort could be applicable to 13A. This analysis proves that, at most, only a small portion of time 5 was used to “prove” 13A. Thus, an attorney’s fees awarded under 13A must only be directly associated 6 with time spent on 13A. Given that little time was needed to “prove” a “bare” violation of 13A, the 7 amount applicable to 13A is actually far less than the 11.0% figure. This is consistent with Plaintiffs’ 8 case. Plaintiff’s case was redundant, overdone and wasteful. Plaintiffs took 6 days to present a case 9 with property damage of less than $10,000! The fire loss claims had nothing to do with 13A; same 10 with an arborist, a viticulturalist, a land surveyor, a real estate agent, etc. 11 CONCLUSION 12 In his Declaration, Mr. Bacho swears: “I believe the work performed on this file was 13 reasonable under the circumstances” (page 2, lines 13 – 14). How would anyone believe that it is 14 reasonable and necessary for 2 attorneys, charging a combined hourly rate of nearly $800/hour, to sit, 15 day after day, during a week-long-plus trial on a case with less than $10,000 in actual property 16 damage? Who would believe that two elderly clients authorized Mr. Bacho to rack up over $400,000? 17 The last litigation initiated by Plaintiffs, over the same Poplar trees, was in Small Claims court 18 in 2017! And now, suddenly, these same people are going to pay over $400,000 for the privilege? 19 In his Declaration, Mr. Bacho swears that: “All of the attorney’s fees and costs advanced to 20 plaintiffs were presented to them from CFK. Those bills have been reviewed, paid by Plaintiffs and 21 were current as of February 2023” (page 3, lines 1 – 2). (Emphasis added) So, we are to believe that 22 Plaintiffs, who didn’t haul any debris because of expense (RT page 495, lines 18 – 23) paid their 23 attorneys, in full, approximately $226,800 in fees (August 2020 through February 2023)? Really? So, 24 this court is asked to believe that Plaintiffs paid hundreds of thousands of dollars, before trial even 25 started, to litigate a claim with actual damages of less than $10,000 and then further agreed to pay for 26 another $116,300 for trial fees? None of this passes the smell test. 27 In his Declaration, Mr. Bacho swears that the ~$46K worth of fees paid to experts “accurately 28 reflects the recoverable expense” (page 3, lines 3 - 4). Expert witness fees are not recoverable unless DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 13 1 the witnesses were ordered by the court or a §998 offer was made (neither of which happened). 2 What can be discerned from the billings served shows that as soon as 13A was included, Mr. 3 Bacho, went “hog-wild” on the case. Had there been no fee-shifting provision available, Mr. Bacho 4 would have been forced to treat this case appropriately considering the small amount of actual 5 property damages suffered by Plaintiffs—very, very conservatively. The court shouldn’t reward this. 6 Mr. Bacho spent 5.0 hours on the Post-Fee Motion (Plaintiffs’ MPA, page 5, line 23). Rather 7 than taking the time necessary to present a well-supported and well-reasoned Motion, Mr. Bacho 8 chose to redact every single line item of his invoices and to ask the court for every penny. Mr. Bacho 9 chose not to ethically review his invoices to see what could be reasonably allocated under 13A’s fee- 10 shifting provision and to make sure his request was fair and reasonable. Mr. Bacho states: “[I] spent a 11 significant number of hours during the nearly twenty-eight months that this case took to get to trial” 12 (Plaintiff’s MPA, page 5, lines 13 – 14). So, apparently, Mr. Bacho was just able to skim those 13 “twenty-eight months” of work, the over 1,000 hours claimed, and all of the deposition and trial 14 testimony to state, under penalty of perjury, to claim that he and his firm should be paid for 15 everything, and all as “prevailing parties under 13A”? (Plaintiffs’ MPA, page 4, lines 20 – 22). 16 Mr. Bacho violated Defendants’ due process rights by providing no proof. There is nothing 17 reasonable about Mr. Bacho and his firm’s fees in this case. Defendants were already hit with 18 compensatory damages that exponentially exceeded any actual property damage. Defendants were 19 also hit with huge punitive damages that doubled the award. Plaintiffs have already uprooted and 20 removed all of the Poplar trees. (See the Declaration of Joyce Whitaker.) And now, Mr. Bacho 21 “believes” Defendants should get hit again, effectively tripling the total damage award. Is it 22 reasonable that Defendants should pay $1.4M for a fire that caused less than $10,000 in property 23 damage (a few fenceposts of an at least 17-year-old fence), for Poplar trees that had not yet fallen, 24 and for a “bare” violation of 13A which caused no injury, harm, or actual damage of any kind? 25 For the foregoing reasons, and in particular, Plaintiffs’ attorneys’ gross due process 26 violations, ex parte communication, violation of B&P Code §6068 and various RPC’s, and improper 27 requests for expert witness fees, the court should deny Plaintiffs’ request for fees in its entirety. 28 However, if the court disagrees, then, at the very most, Plaintiffs could get is 11% of the total DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO ATTORNEY’S FEES AND COSTS Brilliant v. Black, SCV-267406 14 1 invoices after eliminating the work charged before 13A was added to the FAC in the amount of 2 $26,100 and expert witness fees of $46,365.92. 11% of the remaining balance totals $41,170.47. 3 4 Respectfully submitted, 5 6 Dated: May 12, 2023 By: __________________________________ GRADEN R. TAPLEY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OP