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 DECLARATION OF MICHAEL G.
individual and as trustee of THE DAGMAR
13 HOHENECK-SMITH TRUST dated December WATTERS IN SUPPORT OF
14, 2010, OPPOSITION TO PLAINTIFFS’
14 MOTION FOR ATTORNEY’S FEES
Plaintiffs, AND COSTS
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 I, Michael G. Watters, declare:
23 1. I am an attorney at law and admitted to practice before all the courts of this state. I am a
24 Founding Partner with O’Brien Watters & Davis, LLP (now in its 41st year), attorneys for Defendants.
25 2. I am over the age of 18 and, except as otherwise stated, have personal knowledge of the
26 matters set forth herein and am competent to testify thereto if called upon as a witness.
27 MY QUALIFICATIONS AND BACKGROUND
28 3. I received a Bachelor of Science Degree from the University of California at Berkeley
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
1
1 in 1967. I received an M.B.A. Degree from the Graduate School of Business Administration (now the
2 Haas School) from that same university in 1968. I received a J.D. Degree from the University of
3 California, Hastings College of the Law in 1974. I was admitted to practice law before all California
4 courts that same year. I am also admitted to practice before various Federal District Courts
5 throughout California, the 9th Circuit Court of Appeals, and the U.S. Court of Appeals for the Armed
6 Forces formerly known as Court of Military Appeals.
7 4. I am a civil trial lawyer, based in Santa Rosa, who has actively practiced civil
8 litigation since 1975. I have handled cases in Orange, Los Angeles, Riverside, Sonoma, Marin, Napa,
9 Mendocino, San Francisco, Alameda, Contra Costa, Humboldt, Lake, Modoc, Sacramento, San
10 Mateo, Santa Clara, Siskiyou, and Solano counties.
11 5. I was first an associate with the then preeminent law firm of Spridgen, Barrett, Achor,
12 Luckhardt, Anderson & James for the period 1975 through 1979. It was one of the oldest law firms in
13 the State. Four of the firm’s partners were Fellows of the American College of Trial Lawyers (the late
14 Hon. John Moskowitz, the late R.W. Achor, the late William G. Luckhardt and the late C. Kenneth
15 James, Jr.). Another former law partner, the late Joseph Rattigan, became a State Senator and still
16 later, an Appellate Justice. In 1980, I became a partner and was with that firm until 1982 when the
17 firm dissolved. Around 1980, I also received a “BV” rating from Martindale-Hubbell (and since
18 1989, I have been rated “AV”).
19 6. In late 1982, just prior to the Spridgen firm’s dissolution, I withdrew from that firm
20 and I founded the law firm of O’Brien, Sawyer, Watters & Davis, LLP, along with Laurence K.
21 Sawyer (now a retired Superior Court Judge), John R. O’Brien, and Daniel E. Davis. Four of the
22 firm’s former partners have become Superior Court judges, three of whom I personally trained. Two
23 trainees have become Deans of law schools. (No other local private law firm has contributed so many
24 to such public service or produced as many judges.)
25 7. I am also a veteran of the U.S. military, having served in Vietnam in 1970 – 1971. I
26 stayed in the reserves and retired in 1991 after being called to active duty in support of Operation
27 Desert Shield. In 1986, I attended the Naval Justice School and later became certified as Trial
28 Counsel and Defense Counsel by the Judge Advocate General of the Navy.
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
2
1 8. After a number of years of practice as well as after a number of jury trials, I focused
2 on complex civil litigation, including significant trial experience involving complex legal disputes. I
3 have litigation experience in a range of litigated matters, including personal injury, wrongful death,
4 products liability, professional liability (medical, dental, legal, accounting, pharmacy, among others),
5 defense of professional licenses (doctors, psychologists, teachers, and ABC licensees), real estate
6 fraud, fraud in the sale of businesses, dissolution of partnerships, insurance coverage and bad faith,
7 various business torts, civil rights, lender-liability, construction defect, high-end family law and
8 employment cases (wrongful termination, disparate treatment, sexual harassment, wage and hour),
9 and the like.
10 9. I was in trial during the pandemic and have been in 2 court trials so far in 2023 and a
11 AAA commercial arbitration in Orange County.
12 10. Over the years, I have successfully tried dozens of Superior Court jury trials to verdict
13 and I have spent a lot of time in the courtroom, far above what an average civil attorney now
14 experiences in his or her career. For example, during the period 1994 to 1997, I was in trial about 100
15 days, and for the period April 2009 through May 2013, I was in trial for more than 200 days in 10
16 different trials, including three civil jury trials, Bonfigli v. Strachan (2011) 192 Cal. App. 4th 1302 (in
17 which the court awarded my firm $781,074.00 in attorney’s fees), Pourroy v. Pourroy (estate and
18 trust litigation) and Bellows v. Bellows (elder financial abuse, legal malpractice), three employment
19 law cases consolidated for court trial, a pro-bono military jury General Court-Martial at Ft. Lewis
20 (Washington), which resulted in an acquittal of the most serious charges, two lengthy divorce trials,
21 In Re Marriage of Davenport (73 days) (family law, in which the court awarded my firm $1,913,262
22 in attorney’s fees), In Re Marriage of Nessinger (43 days) (since upheld on appeal with a brief by
23 Noreen M. Evans, Esq.) and several shorter trials. See In Re Marriage of Saraga and Zumfelde (9
24 days); In Re Marriage of Tarrant (6 days); In Re Marriage of Honer (9 days); Bellows v. Bellows (14
25 days), and in the trial of Cardoza v. Reed (fraud in the sale of commercial real property) (I was in
26 court many of the 80 day-trial assisting another partner). This was a Top 40 jury trial verdict in the
27 U.S. in 2014.
28 11. Over the years, I have also handled many appeals (most of which were not certified
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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1 for publication and therefore not listed here). I have a number of reported appellate decisions,
2 including Warth v. Department of Justice (1979) 595 F.2d 521, 50 A.L.R. Fed. 331 (Freedom of
3 Information Act); Mill Valley Refuse v. Superior Court (1980) 108 Cal. App. 3d 707 (indemnity from
4 late settling co-defendant prior to judgment / CCP § 877); Butler v. Hathcoat (1983) 146 Cal. App. 3d
5 834 (five year statute); Gregori v. Bank of America (1989) 207 Cal. App. 3d 291 (attorney
6 disqualification); Flatt v. Superior Court (1994) 9 Cal. App. 4th 275 (attorney’s duty to an existing
7 client, consultant to petitioner); Hall v. Harker (1999) 69 Cal. App. 4th 836 (judicial misconduct
8 during trial/malicious prosecution) (an Orange County case); Musser v. Provencher (2002) 28 Cal.
9 4th 274 (indemnity between successive attorneys- a trial attorney for Mr. Provencher and active in the
10 appellate process); In Re Marriage of Davenport (2011) 194 Cal. App. 4th 1507 (family law); and
11 Bonfigli v. Strachan (2011) 192 Cal. App. 4th 1302 (elder abuse, real estate fraud and powers of
12 attorney coupled with an interest). This is one of the leading cases in those areas.
13 12. I have also taught MCLE courses in civil litigation (5 in 2022 alone and 1 each in 2021
14 and 2023). and I was a Professor of Torts at Empire College School of Law in the early ‘90s.
15 FORMAL TRAINING PROGRAM FOR CIVIL TRIAL LAWYERS
16 13. Unlike most other law firms, O’Brien Watters & Davis, LLP had a formal training
17 program for its litigation associates who were handling civil cases. I set up the program and ran it for
18 decades. I was (and am) Head of the Litigation Department; I have been for decades.
19 14. The litigation training program I designed is rigorous and demanding. It encompasses
20 strategy, tactics, civil procedure, civil discovery, depositions, evidence, letter writing, brief writing,
21 etc. This included theory and demonstration as well as practical application followed by critiques. I
22 took a number of these associates out to court and jury trial with me.
23 CIVIL TRIAL ASSOCIATES
24 Prior to and over the firm’s more than 40-year history, I hired many civil litigation associates,
25 often giving them their first job as an attorney in civil litigation. Some were re-treads. The successful
26 graduates of the program have distinguished themselves in their respective legal careers. They
27 include: 4 Superior Court Judges, including the county’s first woman; State Assemblywoman who
28 later became a State Senator; two Deans of Empire College School of Law; Two Deputy City
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
4
1 Attorneys for the City of Santa Rosa; and a Deputy County Counsel. This record, this legacy is
2 unmatched in the county.
3 My trainees include: (Hon.) Elaine Watters (Sonoma County’s first woman Superior Court
4 Judge); Thomas F. Byrne; (Hon.) Noreen M. Evans (first woman hired to do civil litigation in the
5 county in 1982); Robert L. Jackson; (Dean) Bryan J. Purtill; (Hon.) Patrick M. Broderick (also the
6 longest serving Dean of Empire College of Law); Janis H. Grattan; Matthew J. LeBlanc; (Hon.) Dana
7 Simonds; Gail F. Flatt; Robert A. Pratt; Joseph L. Stogner; William L. Adams (former Deputy
8 County Counsel); Patricia Kramer; Alan M. Steinberg; Patty L. Carlson; (Hon.) Karen A. O’Neal;
9 Diane A. Singleton; Andrew G. Watters; Deirdre Taber Kingsbury (my first “AV” rated trial laywer
10 in her first rating), et. al.
11 I have also been blessed with some highly capable paralegal support staff who worked with
12 me over the decades: Peg McElroy for 19 years 6 months; Lauren S. Morris for 22 years and 6
13 months; and currently Carol A. Notaro for 7 years and counting. I spent considerable training time
14 with each of them.
15 REVIEW OF BILLING INVOICES
16 15. As a trial lawyer with almost five decades of experience—primarily as an hourly rate
17 one—and in my roles as Managing Partner (since 1998) and as Head of the Litigation Department, I
18 have reviewed thousands upon thousands of pre-bills as well as thousands of bills sent out to our
19 firm’s clients over the years (including work performed by litigation partners, associates, paralegals,
20 and contract lawyers). Over the years, it has been my custom and practice to reduce billing entries
21 based on what is known as “billing judgment.” (One cannot charge a client for all work done or
22 recorded on a case.) This also includes bills sent out to insurance companies.
23 16. Based on this experience alone, I have a very good idea of what it takes to do most
24 types of work in civil litigation including heavy-duty law and motion practice. This is also based on
25 all the many different kinds/types of cases I and my firm have handled over the years. I am also very
26 familiar with what it takes to get ready for and try a jury trial as well as a court trial.
27 17. Over the years, I have also taken over cases from other attorneys/law firms and have
28 had the opportunity to review what work was done by them in those cases as well as review the bills
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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1 sent to their (former) clients.
2 18. In my role as an expert witness in fee disputes as well as a standard of care expert, I
3 have also reviewed many bills and files from a number of other attorneys and law firms. I have
4 testified as an expert witness in MFAA arbitrations, fee arbitrations, and in Court regarding the
5 reasonableness and necessity of attorney fees.
6 19. I have also made and defended many fee motions over the years in a variety of
7 different cases and case settings based either on fee shifting statutes or contractual provisions.
8 REPORTED CASES IN THE AREA OF ATTORNEY CONDUCT/MISCONDUCT
9 20. Over the years, I have been interested in the area of attorney conduct and misconduct.
10 There are two Supreme Court cases that came out of my own law firm: Flatt v. Superior Court (1994)
11 9 Cal. App. 4th 275 (duty of lawyer to existing clients) and Musser v. Provencher (2002) 28 Cal. 4th
12 274 (indemnity, among successive attorneys). I directed the defense of such cases on behalf of the
13 firm.
14 21. I was trial and appellate counsel in the Gregori v. Bank of America (1989) 207 Cal.
15 App. 3d 291 (attorney and paralegal misconduct eventually resulting in the disqualification of the
16 offending counsel) and in Hall v. Harker (1999) 69 Cal. App. 4th 836 (judicial misconduct).
17 EXPERT WITNESS QUALIFICATIONS
18 22. I have testified as an expert witness regarding attorney conduct, the standard of care,
19 fiduciary duty, attorney ethics, and the reasonableness and necessity of attorney fees, in the following
20 jurisdictions:
21 • Kings County Superior Court
22 • Los Angeles County Superior Court
23 • San Diego County Superior Court
24 • Ventura County Superior Court
25 • AAA Arbitrations (Los Angeles County)
26 • JAMS Arbitration (Orange County)
27 • MFAA Fee Arbitrations (El Dorado County; Los Angeles County, Sacramento
28 County; Sonoma County)
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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1 • U.S. Bankruptcy Court (fair value hearing)
2 23. Attached hereto as Exhibit A is a copy of my CV, which I personally prepared.
3 WRITTEN DISCOVERY DEVICES
4 24. I am an expert in civil procedure. I am an expert in civil discovery. In fact, I assisted
5 former law partner Joseph A. Piasta, II in his co-authoring of a West publication on the subject,
6 “California Civil Discovery Handbook” (1992). Mr. Piasta, with my permission, used many of my
7 written discovery materials in that book.
8 25. As a 49-year civil trial lawyer, I have made extensive use of the various written
9 discovery devices available to parties under the California Civil Discovery Act. These include
10 Interrogatories, Requests to Inspect as well as Requests for Admissions.
11 26. In my opinion, with the exception of Requests to Inspect, most of them have little
12 practical use. Requests for Admission may be helpful when used in conjunction with Judicial Council
13 Form Interrogatories, number 17.1. Otherwise, in my opinion, Requests for Admission are not
14 particularly helpful.
15 27. In my entire career, as well as in my role as a trainer and consultant, I have never seen
16 any party impeached at trial with his, her or its written responses to written discovery. In my
17 experience, responses to written discovery, including documents provided in response to written
18 discovery are rarely, if ever, even seen at trial or used at the trial by the requesting party.
19 28. In my opinion, the best civil discovery device ever invented is the deposition.
20 (Evidence Code §776 and CCP §2025.620.) I have taught extensively on that subject, presenting 5
21 MCLE programs last year alone to members of the Sonoma County Bar Association. The CEB has
22 asked me to do a series of recorded programs on depositions.
23 USE OF REQUESTS FOR ADMISSION; SANCTIONS
24 29. In my 49-year career, as a trainer as well as a consultant, I have never seen any court,
25 in any county, award attorney’s fees as sanctions against a party for failing to admit any Request for
26 Admission.
27 30. The last attempt for an award of attorney’s fees for alleged failure to admit was in the
28 Terribillini case, defended at trial by my office and former partner, “AV” rated trial attorney, Deirdre
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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1 Taber Kingsbury. Attached hereto as Exhibit B is the Order by Judge Dollard denying the attorney’s
2 fees request. It is instructive, in my opinion.
3 31. I have reviewed Mr. Bacho’s Motion for Attorney’s Fees. In my opinion, Mr. Bacho’s
4 request for attorney’s fees and sanctions for Defendant Mitchell Black’s failure to admit certain
5 requests for admissions is not supportable. It is one more attempt by him to try to justify the
6 unjustifiable.
7 CUSTOM AND PRACTICE OF REVIEWING THOUSANDS
8 UPON THOUSANDS OF PRE-BILLS IN CONJUNCTION WITH CASE-LISTING
9 32. The Firm handled insurance defense work for a number of decades. I was outside
10 counsel for the Farmers Insurance Group of companies for multiple counties including Sonoma,
11 Marin, Lake and Mendocino. We also did work for other carriers plus lots of private litigation. We
12 had as many as 10 attorneys doing civil litigation.
13 33. It was my custom and practice to “case-list” each of the civil litigation associates
14 working directly for me as well as review every pre-bill for each case. This, of course, took a lot of
15 extra effort. Case-listing involved meeting with each associate and going over his or her case list, the
16 case files themselves, and developing a plan for future work on each case.
17 34. As part of the process, I would review each of their files from the last time that I had
18 reviewed them.
19 35. As a result of this process, as well as my own personal experience in being in trial for
20 hundreds of days, I obtained a unique experience as to what it takes for most, if not pretty much all,
21 tasks performed by civil litigators from pre-trial, through trial, post-trial motions, as well as through
22 appeal. (I have handled probably 75 appeals and have a number of reported cases. See above.)
23 36. As a trial lawyer, I also have an excellent track record. I have tangled at trial with 3
24 different Fellows of the American College of Trial Lawyers. So far, I remain undefeated. One of them
25 was the renowned Clay Clement, Esq.
26 REASONABLENESS AND NECESSITY OF ATTORNEYS FEES
27 37. As a civil trial lawyer practicing in his 49th year, I have a pretty good idea of what
28 constitutes reasonable and necessary attorney’s fees in most types a civil of civil cases. I cannot
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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1 imagine any greater experience beyond my role as a trainer of civil litigation associates as well as a
2 reviewer of thousands upon thousands of pre-bills not to mention case-listing.
3 38. I have even prepared a list of the common functions of a civil trial attorney for use in
4 my training program.
5 FEE SHIFTING
6 39. I have handled many cases in which fee shifting statutes apply. These include elder
7 abuse, FEHA, family law, labor law and PAGA, among others.
8 40. I have successfully been awarded millions of dollars in such fee shifting cases over the
9 years.
10 EXPERT WITNESS IN FEE DISPUTES
11 INVOLVING CASES OF HOURLY ATTORNEY’S FEES
12 41. I also testify as an expert witness in the area of attorney fee disputes. I have been
13 doing so since at least 2017.
14 42. As part of that process, at least in hourly fee dispute cases, I carefully review the
15 invoices in dispute, albeit some or parts of some invoices may be partially redacted to cover up
16 confidential attorney-client communications or attorney work-product. This review is fundamental to
17 the process of being able to render any opinion on reasonableness and necessity of the fees in dispute.
18 Blanket fee totals are of little help. The State Bar published various “Advisories” for use in MFAA
19 fee disputes. They have been very helpful.
20 43. Doing this work for the last seven or eight years, I have never seen any attorney serve
21 only completely redacted invoices on the opposition, whilst apparently, at least as I read his
22 declaration, Mr. Bacho also delivering a set of unredacted invoices to the trial judge hearing his
23 motion. This is unheard of and unprecedented. In my opinion, it’s a complete denial of Defendants’
24 due process rights as well as an improper ex parte communication with the court. It is a violation of
25 CCP §1005. It constitutes misconduct, in my opinion.
26 ///
27 ///
28 ///
DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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1 I declare under penalty of perjury under the laws of the State of California that the foregoing is
2 true and correct.
3
4 Dated: May 12, 2023 By: __________________________________
MICHAEL G. WATTERS
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DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION
Brilliant v. Black, SCV-267406
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EXHIBIT A
Curriculum Vitae
Michael G. Watters, Esq. Updated 2-24-23
Expert Witness
Occupation:
Attorney-at-Law (1974 – current)
College Degrees:
University of California at Berkeley, B.S. (1967)
University of California at Berkeley, M.B.A. (1968)
UC Hastings College of the Law, J.D. (1974) (now known as UC College of the Law, SF)
Military Service:
USMC Officer – Active Duty (1969 – 1971)
Vietnam Veteran (1970 – 1971)
USMC Reserves (1971 – 1991; retiring as a Major)
Operation Desert Shield Veteran (1990 -1991)
Qualified as Trial / Defense Counsel by Judge Advocate General of the Navy (1986)
Employment History:
Spridgen, Barrett, Achor, Luckhardt, Anderson & James – Santa Rosa, CA
Associate (1975 – 1979)
Partner (1980 – 1982)
O’Brien, Watters & Davis, LLP – Santa Rosa, CA
Founding Partner (11-2-82)
Managing Partner (1998 – current)
Chair of Litigation (1985 – 2018; 2020 – current)
Expert Witness:
Attorney Standard of Care
Attorney Fiduciary Duty
Attorney Ethics
Attorney Custom and Practice
Attorney Fee Disputes
Reasonableness and Necessity of Attorney’s Fees
Qualified as an Expert Witness:
Kings County Superior Court
Los Angeles County Superior Court
Orange County Superior Court
Placer County Superior Court
Sacramento County Superior Court
San Diego County Superior Court
Santa Clara County Superior Court
Ventura County Superior Court
AAA Arbitrations (Los Angeles County)
JAMS Arbitration (Orange County)
MFAA Fee Arbitrations (El Dorado County, Los Angeles County, Orange County
(Judicate West), Sacramento County, and Sonoma County)
michaelgwatters.com • mgw@michaelgwatters.com • (707) 545-7010 Page 1 of 3
Curriculum Vitae
Michael G. Watters, Esq. Updated 2-24-23
Expert Witness
Bar Admissions:
State Bar of California – State Bar No. 63140 (Admitted 12-18-74)
U.S. Court of Appeals for the Ninth Circuit
U.S. District Courts in California
U.S. Court of Military Appeals (COMA)
U.S. Tax Court
Bar Memberships:
ABA
Sonoma County Bar Association
Trials:
Numerous Jury and Court Trials, Arbitrations
more than 40 jury trials to verdict
more than 30 court trials to judgment
(2009 – 2015, more than 250 trial days)
Top-40 Jury Verdict in the U.S. in 2014 (assisted a former partner in an 80-day jury trial)
Cardoza v. Reed (fraud in the sale of commercial property)
Reported Appellate Cases in the Area of Attorney Conduct:
Gregori v. Bank of America (1989) 207 Cal.App.3d 291 (Trial & Appellate Counsel)
Flatt v. Superior Court (1994) 9 Cal.4th 275 (Consultant and directed case)
Hall v. Harker (1999) 69 Cal.App.4th 836 (Trial & Appellate Counsel)
Musser v. Provencher (2002) 28 Cal.4th 274 (Trial Counsel & Consultant)
Other Appeals; Leading case in area of Financial Abuse of an Elder and Personal Liability
of Corporate Officers for their own Tortious Conduct:
Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302 (Trial & Appellate Counsel)
Alternative Dispute Resolution (ADR):
AAA Commercial Arbitration Panelist, San Francisco (1978 – 2000)
AAA Law & Mediation Center Mediator, San Francisco (1990 – 2000)
Superior Court Judicial Arbitration Panelist, Sonoma County (since 1979)
Superior Court Settlement Conference Panelist:
Sonoma County, Civil & Family Law (more than 40 years)
Marin County, Civil (since 1980)
Sonoma County Superior Court Demurrer Facilitator, Discovery Facilitator
Sonoma County Superior Court Discovery Referee
Private Mediator
Honors:
AV-Rated by Martindale-Hubbell (1989 – current)
Super Lawyers in Northern California (2007 – current)
michaelgwatters.com • mgw@michaelgwatters.com • (707) 545-7010 Page 2 of 3
Curriculum Vitae
Michael G. Watters, Esq. Updated 2-24-23
Expert Witness
Judge (Pro-Tem):
Sonoma County Superior Court
(Presided over a Medical Malpractice Jury Trial)
Sonoma County Small Claims Court
Marin County Municipal Court
(Presided over Court Trials)
Academic / Teaching Positions:
Empire College School of Law
Professor of Torts (1990 – 1992)
Sonoma State University
Paralegal Studies Program (early 1980’s)
Taught “Introduction to Law”
Publications;
For Sonoma County Bar Association (SCBA) MCLE Programs:
“Questioning Techniques” (2022)
“How to Ethically Prepare a Witness for Deposition” (2022)
“Deposition Objections” (2022)
“How to Prepare to Take a Key Deposition” (2022)
“The Top 20 Deposition Mistakes” (2022)
“How to Take the Deposition of an Expert—Any Expert” (2021)
“When Legal Documents are Destroyed—What Clients and their Lawyer can Do”
(2020)
“Expert Depositions” (2020)
“How to Prepare to Take a Key Deposition” (2016)
“Defending Depositions” (2015)
“The Top 20 Deposition Mistakes” (2014)
“How to Take a Deposition of an Expert Witness… Any Expert” (2011)
“Deposition Basics” (2011)
For NBI Programs:
“Laying a Foundation and Introducing Evidence at Trial” (2022)
“California Trial Strategies: From Voir Dire to Post-Trial Motions” (2022)
California Continuing Education of the Bar (CEB) Contributor;
CEB PractitionerTM How-To-Guides:
“Responding to a Demurrer” (pre-publication)
“Moving for Summary Judgment” (pre-publication)
michaelgwatters.com • mgw@michaelgwatters.com • (707) 545-7010 Page 3 of 3
EXHIBIT B
1 Brilliant v. Black
Sonoma County Superior Court Case No. SCV-267406
2
PROOF OF SERVICE
3
Code of Civil Procedure Section 1013a(3), 2015.5
4
I declare that:
5
I am over the age of eighteen years and am not a party to this action. My business address is
6 1550 Airport Blvd., Suite 201, Santa Rosa, CA 95403, which is located in the county where this mailing
described below took place.
7
On May 12, 2023, at my place of business at 1550 Airport Blvd., Santa Rosa, CA 95403, I
8 served the attached:
9 DOCUMENTS: DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO
PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS
10
DECLARATION OF GRADEN TAPLEY IN SUPPORT OF DEFENDANTS’ OPPOSITION TO
11 PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES COSTS
12 DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO
PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS
13
DECLARATION OF TIMOTHY WATTERS IN SUPPORT OF OPPOSITION TO
14
PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS
15
DECLARATION OF ED LEAR IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION
16 FOR ATTORNEY’S FEES AND COSTS
17
ADDRESSED TO:
18
Davin Bacho, Esq.
19 3333 Mendocino Ave, Ste 200
Santa Rosa, CA 95403
20
dbacho@cfk.com
21 cc: clawrence@cfk.com , jlyons@cfk.com
22
(X) (BY ELECTRONIC MAIL) By personally transmitting to the above-named person(s),
23 who has previously agreed to receive documents via electronic mail, to the e-mail address as
shown above, on the date and time listed below, originating from my assigned electronic mail
24 address at O’Brien Watters & Davis, LLP, pursuant to the C.R.C. 2060 and Government
Code§ I 1440.20. A true copy of the above-described document(s) was transmitted by
25
electronic transmission through the O’Brien Watters & Davis, LLP's mail server, which did
26 not report any error in sending the transmission.
27 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
28
Executed on May 12, 2023.
Timothy Watters
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 DECLARATION OF MICHAEL G. individual and as trustee of THE DAGMAR 13 HOHENECK-SMITH TRUST dated December WATTERS IN SUPPORT OF 14, 2010, OPPOSITION TO PLAINTIFFS’ 14 MOTION FOR ATTORNEY’S FEES Plaintiffs, AND COSTS 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 I, Michael G. Watters, declare: 23 1. I am an attorney at law and admitted to practice before all the courts of this state. I am a 24 Founding Partner with O’Brien Watters & Davis, LLP (now in its 41st year), attorneys for Defendants. 25 2. I am over the age of 18 and, except as otherwise stated, have personal knowledge of the 26 matters set forth herein and am competent to testify thereto if called upon as a witness. 27 MY QUALIFICATIONS AND BACKGROUND 28 3. I received a Bachelor of Science Degree from the University of California at Berkeley DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 1 1 in 1967. I received an M.B.A. Degree from the Graduate School of Business Administration (now the 2 Haas School) from that same university in 1968. I received a J.D. Degree from the University of 3 California, Hastings College of the Law in 1974. I was admitted to practice law before all California 4 courts that same year. I am also admitted to practice before various Federal District Courts 5 throughout California, the 9th Circuit Court of Appeals, and the U.S. Court of Appeals for the Armed 6 Forces formerly known as Court of Military Appeals. 7 4. I am a civil trial lawyer, based in Santa Rosa, who has actively practiced civil 8 litigation since 1975. I have handled cases in Orange, Los Angeles, Riverside, Sonoma, Marin, Napa, 9 Mendocino, San Francisco, Alameda, Contra Costa, Humboldt, Lake, Modoc, Sacramento, San 10 Mateo, Santa Clara, Siskiyou, and Solano counties. 11 5. I was first an associate with the then preeminent law firm of Spridgen, Barrett, Achor, 12 Luckhardt, Anderson & James for the period 1975 through 1979. It was one of the oldest law firms in 13 the State. Four of the firm’s partners were Fellows of the American College of Trial Lawyers (the late 14 Hon. John Moskowitz, the late R.W. Achor, the late William G. Luckhardt and the late C. Kenneth 15 James, Jr.). Another former law partner, the late Joseph Rattigan, became a State Senator and still 16 later, an Appellate Justice. In 1980, I became a partner and was with that firm until 1982 when the 17 firm dissolved. Around 1980, I also received a “BV” rating from Martindale-Hubbell (and since 18 1989, I have been rated “AV”). 19 6. In late 1982, just prior to the Spridgen firm’s dissolution, I withdrew from that firm 20 and I founded the law firm of O’Brien, Sawyer, Watters & Davis, LLP, along with Laurence K. 21 Sawyer (now a retired Superior Court Judge), John R. O’Brien, and Daniel E. Davis. Four of the 22 firm’s former partners have become Superior Court judges, three of whom I personally trained. Two 23 trainees have become Deans of law schools. (No other local private law firm has contributed so many 24 to such public service or produced as many judges.) 25 7. I am also a veteran of the U.S. military, having served in Vietnam in 1970 – 1971. I 26 stayed in the reserves and retired in 1991 after being called to active duty in support of Operation 27 Desert Shield. In 1986, I attended the Naval Justice School and later became certified as Trial 28 Counsel and Defense Counsel by the Judge Advocate General of the Navy. DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 2 1 8. After a number of years of practice as well as after a number of jury trials, I focused 2 on complex civil litigation, including significant trial experience involving complex legal disputes. I 3 have litigation experience in a range of litigated matters, including personal injury, wrongful death, 4 products liability, professional liability (medical, dental, legal, accounting, pharmacy, among others), 5 defense of professional licenses (doctors, psychologists, teachers, and ABC licensees), real estate 6 fraud, fraud in the sale of businesses, dissolution of partnerships, insurance coverage and bad faith, 7 various business torts, civil rights, lender-liability, construction defect, high-end family law and 8 employment cases (wrongful termination, disparate treatment, sexual harassment, wage and hour), 9 and the like. 10 9. I was in trial during the pandemic and have been in 2 court trials so far in 2023 and a 11 AAA commercial arbitration in Orange County. 12 10. Over the years, I have successfully tried dozens of Superior Court jury trials to verdict 13 and I have spent a lot of time in the courtroom, far above what an average civil attorney now 14 experiences in his or her career. For example, during the period 1994 to 1997, I was in trial about 100 15 days, and for the period April 2009 through May 2013, I was in trial for more than 200 days in 10 16 different trials, including three civil jury trials, Bonfigli v. Strachan (2011) 192 Cal. App. 4th 1302 (in 17 which the court awarded my firm $781,074.00 in attorney’s fees), Pourroy v. Pourroy (estate and 18 trust litigation) and Bellows v. Bellows (elder financial abuse, legal malpractice), three employment 19 law cases consolidated for court trial, a pro-bono military jury General Court-Martial at Ft. Lewis 20 (Washington), which resulted in an acquittal of the most serious charges, two lengthy divorce trials, 21 In Re Marriage of Davenport (73 days) (family law, in which the court awarded my firm $1,913,262 22 in attorney’s fees), In Re Marriage of Nessinger (43 days) (since upheld on appeal with a brief by 23 Noreen M. Evans, Esq.) and several shorter trials. See In Re Marriage of Saraga and Zumfelde (9 24 days); In Re Marriage of Tarrant (6 days); In Re Marriage of Honer (9 days); Bellows v. Bellows (14 25 days), and in the trial of Cardoza v. Reed (fraud in the sale of commercial real property) (I was in 26 court many of the 80 day-trial assisting another partner). This was a Top 40 jury trial verdict in the 27 U.S. in 2014. 28 11. Over the years, I have also handled many appeals (most of which were not certified DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 3 1 for publication and therefore not listed here). I have a number of reported appellate decisions, 2 including Warth v. Department of Justice (1979) 595 F.2d 521, 50 A.L.R. Fed. 331 (Freedom of 3 Information Act); Mill Valley Refuse v. Superior Court (1980) 108 Cal. App. 3d 707 (indemnity from 4 late settling co-defendant prior to judgment / CCP § 877); Butler v. Hathcoat (1983) 146 Cal. App. 3d 5 834 (five year statute); Gregori v. Bank of America (1989) 207 Cal. App. 3d 291 (attorney 6 disqualification); Flatt v. Superior Court (1994) 9 Cal. App. 4th 275 (attorney’s duty to an existing 7 client, consultant to petitioner); Hall v. Harker (1999) 69 Cal. App. 4th 836 (judicial misconduct 8 during trial/malicious prosecution) (an Orange County case); Musser v. Provencher (2002) 28 Cal. 9 4th 274 (indemnity between successive attorneys- a trial attorney for Mr. Provencher and active in the 10 appellate process); In Re Marriage of Davenport (2011) 194 Cal. App. 4th 1507 (family law); and 11 Bonfigli v. Strachan (2011) 192 Cal. App. 4th 1302 (elder abuse, real estate fraud and powers of 12 attorney coupled with an interest). This is one of the leading cases in those areas. 13 12. I have also taught MCLE courses in civil litigation (5 in 2022 alone and 1 each in 2021 14 and 2023). and I was a Professor of Torts at Empire College School of Law in the early ‘90s. 15 FORMAL TRAINING PROGRAM FOR CIVIL TRIAL LAWYERS 16 13. Unlike most other law firms, O’Brien Watters & Davis, LLP had a formal training 17 program for its litigation associates who were handling civil cases. I set up the program and ran it for 18 decades. I was (and am) Head of the Litigation Department; I have been for decades. 19 14. The litigation training program I designed is rigorous and demanding. It encompasses 20 strategy, tactics, civil procedure, civil discovery, depositions, evidence, letter writing, brief writing, 21 etc. This included theory and demonstration as well as practical application followed by critiques. I 22 took a number of these associates out to court and jury trial with me. 23 CIVIL TRIAL ASSOCIATES 24 Prior to and over the firm’s more than 40-year history, I hired many civil litigation associates, 25 often giving them their first job as an attorney in civil litigation. Some were re-treads. The successful 26 graduates of the program have distinguished themselves in their respective legal careers. They 27 include: 4 Superior Court Judges, including the county’s first woman; State Assemblywoman who 28 later became a State Senator; two Deans of Empire College School of Law; Two Deputy City DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 4 1 Attorneys for the City of Santa Rosa; and a Deputy County Counsel. This record, this legacy is 2 unmatched in the county. 3 My trainees include: (Hon.) Elaine Watters (Sonoma County’s first woman Superior Court 4 Judge); Thomas F. Byrne; (Hon.) Noreen M. Evans (first woman hired to do civil litigation in the 5 county in 1982); Robert L. Jackson; (Dean) Bryan J. Purtill; (Hon.) Patrick M. Broderick (also the 6 longest serving Dean of Empire College of Law); Janis H. Grattan; Matthew J. LeBlanc; (Hon.) Dana 7 Simonds; Gail F. Flatt; Robert A. Pratt; Joseph L. Stogner; William L. Adams (former Deputy 8 County Counsel); Patricia Kramer; Alan M. Steinberg; Patty L. Carlson; (Hon.) Karen A. O’Neal; 9 Diane A. Singleton; Andrew G. Watters; Deirdre Taber Kingsbury (my first “AV” rated trial laywer 10 in her first rating), et. al. 11 I have also been blessed with some highly capable paralegal support staff who worked with 12 me over the decades: Peg McElroy for 19 years 6 months; Lauren S. Morris for 22 years and 6 13 months; and currently Carol A. Notaro for 7 years and counting. I spent considerable training time 14 with each of them. 15 REVIEW OF BILLING INVOICES 16 15. As a trial lawyer with almost five decades of experience—primarily as an hourly rate 17 one—and in my roles as Managing Partner (since 1998) and as Head of the Litigation Department, I 18 have reviewed thousands upon thousands of pre-bills as well as thousands of bills sent out to our 19 firm’s clients over the years (including work performed by litigation partners, associates, paralegals, 20 and contract lawyers). Over the years, it has been my custom and practice to reduce billing entries 21 based on what is known as “billing judgment.” (One cannot charge a client for all work done or 22 recorded on a case.) This also includes bills sent out to insurance companies. 23 16. Based on this experience alone, I have a very good idea of what it takes to do most 24 types of work in civil litigation including heavy-duty law and motion practice. This is also based on 25 all the many different kinds/types of cases I and my firm have handled over the years. I am also very 26 familiar with what it takes to get ready for and try a jury trial as well as a court trial. 27 17. Over the years, I have also taken over cases from other attorneys/law firms and have 28 had the opportunity to review what work was done by them in those cases as well as review the bills DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 5 1 sent to their (former) clients. 2 18. In my role as an expert witness in fee disputes as well as a standard of care expert, I 3 have also reviewed many bills and files from a number of other attorneys and law firms. I have 4 testified as an expert witness in MFAA arbitrations, fee arbitrations, and in Court regarding the 5 reasonableness and necessity of attorney fees. 6 19. I have also made and defended many fee motions over the years in a variety of 7 different cases and case settings based either on fee shifting statutes or contractual provisions. 8 REPORTED CASES IN THE AREA OF ATTORNEY CONDUCT/MISCONDUCT 9 20. Over the years, I have been interested in the area of attorney conduct and misconduct. 10 There are two Supreme Court cases that came out of my own law firm: Flatt v. Superior Court (1994) 11 9 Cal. App. 4th 275 (duty of lawyer to existing clients) and Musser v. Provencher (2002) 28 Cal. 4th 12 274 (indemnity, among successive attorneys). I directed the defense of such cases on behalf of the 13 firm. 14 21. I was trial and appellate counsel in the Gregori v. Bank of America (1989) 207 Cal. 15 App. 3d 291 (attorney and paralegal misconduct eventually resulting in the disqualification of the 16 offending counsel) and in Hall v. Harker (1999) 69 Cal. App. 4th 836 (judicial misconduct). 17 EXPERT WITNESS QUALIFICATIONS 18 22. I have testified as an expert witness regarding attorney conduct, the standard of care, 19 fiduciary duty, attorney ethics, and the reasonableness and necessity of attorney fees, in the following 20 jurisdictions: 21 • Kings County Superior Court 22 • Los Angeles County Superior Court 23 • San Diego County Superior Court 24 • Ventura County Superior Court 25 • AAA Arbitrations (Los Angeles County) 26 • JAMS Arbitration (Orange County) 27 • MFAA Fee Arbitrations (El Dorado County; Los Angeles County, Sacramento 28 County; Sonoma County) DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 6 1 • U.S. Bankruptcy Court (fair value hearing) 2 23. Attached hereto as Exhibit A is a copy of my CV, which I personally prepared. 3 WRITTEN DISCOVERY DEVICES 4 24. I am an expert in civil procedure. I am an expert in civil discovery. In fact, I assisted 5 former law partner Joseph A. Piasta, II in his co-authoring of a West publication on the subject, 6 “California Civil Discovery Handbook” (1992). Mr. Piasta, with my permission, used many of my 7 written discovery materials in that book. 8 25. As a 49-year civil trial lawyer, I have made extensive use of the various written 9 discovery devices available to parties under the California Civil Discovery Act. These include 10 Interrogatories, Requests to Inspect as well as Requests for Admissions. 11 26. In my opinion, with the exception of Requests to Inspect, most of them have little 12 practical use. Requests for Admission may be helpful when used in conjunction with Judicial Council 13 Form Interrogatories, number 17.1. Otherwise, in my opinion, Requests for Admission are not 14 particularly helpful. 15 27. In my entire career, as well as in my role as a trainer and consultant, I have never seen 16 any party impeached at trial with his, her or its written responses to written discovery. In my 17 experience, responses to written discovery, including documents provided in response to written 18 discovery are rarely, if ever, even seen at trial or used at the trial by the requesting party. 19 28. In my opinion, the best civil discovery device ever invented is the deposition. 20 (Evidence Code §776 and CCP §2025.620.) I have taught extensively on that subject, presenting 5 21 MCLE programs last year alone to members of the Sonoma County Bar Association. The CEB has 22 asked me to do a series of recorded programs on depositions. 23 USE OF REQUESTS FOR ADMISSION; SANCTIONS 24 29. In my 49-year career, as a trainer as well as a consultant, I have never seen any court, 25 in any county, award attorney’s fees as sanctions against a party for failing to admit any Request for 26 Admission. 27 30. The last attempt for an award of attorney’s fees for alleged failure to admit was in the 28 Terribillini case, defended at trial by my office and former partner, “AV” rated trial attorney, Deirdre DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 7 1 Taber Kingsbury. Attached hereto as Exhibit B is the Order by Judge Dollard denying the attorney’s 2 fees request. It is instructive, in my opinion. 3 31. I have reviewed Mr. Bacho’s Motion for Attorney’s Fees. In my opinion, Mr. Bacho’s 4 request for attorney’s fees and sanctions for Defendant Mitchell Black’s failure to admit certain 5 requests for admissions is not supportable. It is one more attempt by him to try to justify the 6 unjustifiable. 7 CUSTOM AND PRACTICE OF REVIEWING THOUSANDS 8 UPON THOUSANDS OF PRE-BILLS IN CONJUNCTION WITH CASE-LISTING 9 32. The Firm handled insurance defense work for a number of decades. I was outside 10 counsel for the Farmers Insurance Group of companies for multiple counties including Sonoma, 11 Marin, Lake and Mendocino. We also did work for other carriers plus lots of private litigation. We 12 had as many as 10 attorneys doing civil litigation. 13 33. It was my custom and practice to “case-list” each of the civil litigation associates 14 working directly for me as well as review every pre-bill for each case. This, of course, took a lot of 15 extra effort. Case-listing involved meeting with each associate and going over his or her case list, the 16 case files themselves, and developing a plan for future work on each case. 17 34. As part of the process, I would review each of their files from the last time that I had 18 reviewed them. 19 35. As a result of this process, as well as my own personal experience in being in trial for 20 hundreds of days, I obtained a unique experience as to what it takes for most, if not pretty much all, 21 tasks performed by civil litigators from pre-trial, through trial, post-trial motions, as well as through 22 appeal. (I have handled probably 75 appeals and have a number of reported cases. See above.) 23 36. As a trial lawyer, I also have an excellent track record. I have tangled at trial with 3 24 different Fellows of the American College of Trial Lawyers. So far, I remain undefeated. One of them 25 was the renowned Clay Clement, Esq. 26 REASONABLENESS AND NECESSITY OF ATTORNEYS FEES 27 37. As a civil trial lawyer practicing in his 49th year, I have a pretty good idea of what 28 constitutes reasonable and necessary attorney’s fees in most types a civil of civil cases. I cannot DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 8 1 imagine any greater experience beyond my role as a trainer of civil litigation associates as well as a 2 reviewer of thousands upon thousands of pre-bills not to mention case-listing. 3 38. I have even prepared a list of the common functions of a civil trial attorney for use in 4 my training program. 5 FEE SHIFTING 6 39. I have handled many cases in which fee shifting statutes apply. These include elder 7 abuse, FEHA, family law, labor law and PAGA, among others. 8 40. I have successfully been awarded millions of dollars in such fee shifting cases over the 9 years. 10 EXPERT WITNESS IN FEE DISPUTES 11 INVOLVING CASES OF HOURLY ATTORNEY’S FEES 12 41. I also testify as an expert witness in the area of attorney fee disputes. I have been 13 doing so since at least 2017. 14 42. As part of that process, at least in hourly fee dispute cases, I carefully review the 15 invoices in dispute, albeit some or parts of some invoices may be partially redacted to cover up 16 confidential attorney-client communications or attorney work-product. This review is fundamental to 17 the process of being able to render any opinion on reasonableness and necessity of the fees in dispute. 18 Blanket fee totals are of little help. The State Bar published various “Advisories” for use in MFAA 19 fee disputes. They have been very helpful. 20 43. Doing this work for the last seven or eight years, I have never seen any attorney serve 21 only completely redacted invoices on the opposition, whilst apparently, at least as I read his 22 declaration, Mr. Bacho also delivering a set of unredacted invoices to the trial judge hearing his 23 motion. This is unheard of and unprecedented. In my opinion, it’s a complete denial of Defendants’ 24 due process rights as well as an improper ex parte communication with the court. It is a violation of 25 CCP §1005. It constitutes misconduct, in my opinion. 26 /// 27 /// 28 /// DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 9 1 I declare under penalty of perjury under the laws of the State of California that the foregoing is 2 true and correct. 3 4 Dated: May 12, 2023 By: __________________________________ MICHAEL G. WATTERS 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO ATTORNEY’S FEES MOTION Brilliant v. Black, SCV-267406 10 EXHIBIT A Curriculum Vitae Michael G. Watters, Esq. Updated 2-24-23 Expert Witness Occupation: Attorney-at-Law (1974 – current) College Degrees: University of California at Berkeley, B.S. (1967) University of California at Berkeley, M.B.A. (1968) UC Hastings College of the Law, J.D. (1974) (now known as UC College of the Law, SF) Military Service: USMC Officer – Active Duty (1969 – 1971) Vietnam Veteran (1970 – 1971) USMC Reserves (1971 – 1991; retiring as a Major) Operation Desert Shield Veteran (1990 -1991) Qualified as Trial / Defense Counsel by Judge Advocate General of the Navy (1986) Employment History: Spridgen, Barrett, Achor, Luckhardt, Anderson & James – Santa Rosa, CA Associate (1975 – 1979) Partner (1980 – 1982) O’Brien, Watters & Davis, LLP – Santa Rosa, CA Founding Partner (11-2-82) Managing Partner (1998 – current) Chair of Litigation (1985 – 2018; 2020 – current) Expert Witness: Attorney Standard of Care Attorney Fiduciary Duty Attorney Ethics Attorney Custom and Practice Attorney Fee Disputes Reasonableness and Necessity of Attorney’s Fees Qualified as an Expert Witness: Kings County Superior Court Los Angeles County Superior Court Orange County Superior Court Placer County Superior Court Sacramento County Superior Court San Diego County Superior Court Santa Clara County Superior Court Ventura County Superior Court AAA Arbitrations (Los Angeles County) JAMS Arbitration (Orange County) MFAA Fee Arbitrations (El Dorado County, Los Angeles County, Orange County (Judicate West), Sacramento County, and Sonoma County) michaelgwatters.com • mgw@michaelgwatters.com • (707) 545-7010 Page 1 of 3 Curriculum Vitae Michael G. Watters, Esq. Updated 2-24-23 Expert Witness Bar Admissions: State Bar of California – State Bar No. 63140 (Admitted 12-18-74) U.S. Court of Appeals for the Ninth Circuit U.S. District Courts in California U.S. Court of Military Appeals (COMA) U.S. Tax Court Bar Memberships: ABA Sonoma County Bar Association Trials: Numerous Jury and Court Trials, Arbitrations more than 40 jury trials to verdict more than 30 court trials to judgment (2009 – 2015, more than 250 trial days) Top-40 Jury Verdict in the U.S. in 2014 (assisted a former partner in an 80-day jury trial) Cardoza v. Reed (fraud in the sale of commercial property) Reported Appellate Cases in the Area of Attorney Conduct: Gregori v. Bank of America (1989) 207 Cal.App.3d 291 (Trial & Appellate Counsel) Flatt v. Superior Court (1994) 9 Cal.4th 275 (Consultant and directed case) Hall v. Harker (1999) 69 Cal.App.4th 836 (Trial & Appellate Counsel) Musser v. Provencher (2002) 28 Cal.4th 274 (Trial Counsel & Consultant) Other Appeals; Leading case in area of Financial Abuse of an Elder and Personal Liability of Corporate Officers for their own Tortious Conduct: Bonfigli v. Strachan (2011) 192 Cal.App.4th 1302 (Trial & Appellate Counsel) Alternative Dispute Resolution (ADR): AAA Commercial Arbitration Panelist, San Francisco (1978 – 2000) AAA Law & Mediation Center Mediator, San Francisco (1990 – 2000) Superior Court Judicial Arbitration Panelist, Sonoma County (since 1979) Superior Court Settlement Conference Panelist: Sonoma County, Civil & Family Law (more than 40 years) Marin County, Civil (since 1980) Sonoma County Superior Court Demurrer Facilitator, Discovery Facilitator Sonoma County Superior Court Discovery Referee Private Mediator Honors: AV-Rated by Martindale-Hubbell (1989 – current) Super Lawyers in Northern California (2007 – current) michaelgwatters.com • mgw@michaelgwatters.com • (707) 545-7010 Page 2 of 3 Curriculum Vitae Michael G. Watters, Esq. Updated 2-24-23 Expert Witness Judge (Pro-Tem): Sonoma County Superior Court (Presided over a Medical Malpractice Jury Trial) Sonoma County Small Claims Court Marin County Municipal Court (Presided over Court Trials) Academic / Teaching Positions: Empire College School of Law Professor of Torts (1990 – 1992) Sonoma State University Paralegal Studies Program (early 1980’s) Taught “Introduction to Law” Publications; For Sonoma County Bar Association (SCBA) MCLE Programs: “Questioning Techniques” (2022) “How to Ethically Prepare a Witness for Deposition” (2022) “Deposition Objections” (2022) “How to Prepare to Take a Key Deposition” (2022) “The Top 20 Deposition Mistakes” (2022) “How to Take the Deposition of an Expert—Any Expert” (2021) “When Legal Documents are Destroyed—What Clients and their Lawyer can Do” (2020) “Expert Depositions” (2020) “How to Prepare to Take a Key Deposition” (2016) “Defending Depositions” (2015) “The Top 20 Deposition Mistakes” (2014) “How to Take a Deposition of an Expert Witness… Any Expert” (2011) “Deposition Basics” (2011) For NBI Programs: “Laying a Foundation and Introducing Evidence at Trial” (2022) “California Trial Strategies: From Voir Dire to Post-Trial Motions” (2022) California Continuing Education of the Bar (CEB) Contributor; CEB PractitionerTM How-To-Guides: “Responding to a Demurrer” (pre-publication) “Moving for Summary Judgment” (pre-publication) michaelgwatters.com • mgw@michaelgwatters.com • (707) 545-7010 Page 3 of 3 EXHIBIT B 1 Brilliant v. Black Sonoma County Superior Court Case No. SCV-267406 2 PROOF OF SERVICE 3 Code of Civil Procedure Section 1013a(3), 2015.5 4 I declare that: 5 I am over the age of eighteen years and am not a party to this action. My business address is 6 1550 Airport Blvd., Suite 201, Santa Rosa, CA 95403, which is located in the county where this mailing described below took place. 7 On May 12, 2023, at my place of business at 1550 Airport Blvd., Santa Rosa, CA 95403, I 8 served the attached: 9 DOCUMENTS: DEFENDANTS’ MOTION TO STRIKE / TAX COSTS AND OPPOSITION TO PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS 10 DECLARATION OF GRADEN TAPLEY IN SUPPORT OF DEFENDANTS’ OPPOSITION TO 11 PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES COSTS 12 DECLARATION OF MICHAEL G. WATTERS IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS 13 DECLARATION OF TIMOTHY WATTERS IN SUPPORT OF OPPOSITION TO 14 PLAINTIFFS’ MOTION FOR ATTORNEY’S FEES AND COSTS 15 DECLARATION OF ED LEAR IN SUPPORT OF OPPOSITION TO PLAINTIFFS’ MOTION 16 FOR ATTORNEY’S FEES AND COSTS 17 ADDRESSED TO: 18 Davin Bacho, Esq. 19 3333 Mendocino Ave, Ste 200 Santa Rosa, CA 95403 20 dbacho@cfk.com 21 cc: clawrence@cfk.com , jlyons@cfk.com 22 (X) (BY ELECTRONIC MAIL) By personally transmitting to the above-named person(s), 23 who has previously agreed to receive documents via electronic mail, to the e-mail address as shown above, on the date and time listed below, originating from my assigned electronic mail 24 address at O’Brien Watters & Davis, LLP, pursuant to the C.R.C. 2060 and Government Code§ I 1440.20. A true copy of the above-described document(s) was transmitted by 25 electronic transmission through the O’Brien Watters & Davis, LLP's mail server, which did 26 not report any error in sending the transmission. 27 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 28 Executed on May 12, 2023. Timothy Watters