Preview
1 Todd A. Jones (Bar No. 198024)
tjones@archernorris.com FILED/Ei^'BOBSEl
2. Gregory K. Federico (Bar No. 242184)
gfederico(garchemorris.com
3 ARCHER NORRIS
A Professional Law Corporation MAY 1 3 2Q11
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825-5537 By
5 Telephone: 916.646.2480 DEPUTY CLERK
Facsimile: 916.646.5696
6
Attomeys for Defendant
7 RICHARD KIRK RUYBALID, individually, and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450
ABBOTT,
13 CA CONSTRUCTION SUPPLEMENTAL
Plaintiffs, REPLY BRIEF IN SUPPORT OF ITS
14 MOTION FOR ATTORNEYS' FEES,
EXPENSES AND COSTS
15
RONALD PAUL BRITSCHGI, et al.
16
Defendants. Hearing Date: May 27, 2011 (continued)
17 Time: 9:00 a.m.
Dept.: 43
18 Judge: Brian Van Camp
19 Action Filed: September 24, 2007
20 AND RELATED CROSS-ACTIONS.
21
22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION
23 ("CA CONSTRUCTION") hereby files this supplemental reply to Plaintiffs FLORENTINE and
24 RODNEY ABBOTT ("Plaintiffs") late filed Supplemental Opposition regarding attorneys' fees.
25 I. ARGUMENT
26 A. Plaintiffs' Supplemental Papers Are Late
27 A deadline is a deadline. Not surprisingly, Plaintiffs disregard this fact and seek to make
28 excuses for ignoring the filing deadlines contained in multiple court orders.
NIC34I/1137901-1
CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF YN SUPPORT OF ATTORNEYS' FEES
1 First, the April 7,2011 tentative ruling on Plaintiffs' Motion to Tax Costs and CA
2 CONSTRUCTION'S Motion for Attomeys' Fees clearly indicates that Plaintiffs' supplemental
3 brief was due by close of business on April 28, 2011. No response was served before this date.
4 Second, the April 28, 2011 deadline was reaffirmed in the final ruling on Plaintiffs Motion
5 to Tax Costs, which was issued on April 13, 2011. No response was served before this date.
6 Third, on May 3, 2011, the Court issued its Notice of Court Unavailability/Amended
7 Hearing date on the continued Motion for Attomeys Fees. The Court served this notice on May
8 4,2011. In its Notice, the Court states "This order does not alter any current briefing schedules."
9 Plaintiffs' counsel was served with this notice two (2) days prior to filing their supplemental brief
10 on attorneys' fees on May 6, 2011. Despite being on express notice of the deadline in 3 orders,
11 Plaintiffs' state their failure to timely file supplemental papers was due to counsel's own altering
12 of the briefing schedule and the fact that CA CONSTRUCTION'S papers were "voluminous".
13 This charade must stop. The Court should disregard Plaintiffs' supplemental opposition
14 based on Plaintiffs failure to comply with court deadlines and failure to move this matter to fiall
15 resolution for all parties.
16 B. The Reasonableness Of Counsel's Rates Has Been Ruled On By The Court
17 Plaintiffs' attempt to revisit the reasonableness of counsel's hourly rate is improper
18 because the issue has already been decided by the Court. First, the April 7,2011 tentative ruling
19 and the April 13,2011 already decided this issue. As it pertains to attorneys' fees, the Court ruled
20 that CA CONSTRUCTION was clearly the prevailing party, it was entitled to its reasonable fees,
21 and its hourly rate was reasonable. Specifically, at page 3, the Court discusses the "lodestar"
22 method as the appropriate measure for fees, and states:
23 "Here, defendant claims $185 an hour for partners and associates
and $100 for paralegals In its independent judgment, the Court
24 finds that the rates are reasonable in this community for the work
performedfor the defendant in this case. The question, then, is
25 whether the number of hours was reasonable."
26 The Court mled the rate is reasonable based on community standards for this type of work. Based
27 on its prior mling, the Court should disregard the arguments that the hourly rate is unreasonable.
28
NIC34I/1137901-1 2
CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES
1 Second, Plaintiffs' argument has no merit. Plaintiffs' appear to argue that an attorney's
2 hourly rate should be based on how many years they have practiced law. The $185 per hour rate
3 was negotiated with this carrier on an equal basis, meaning all attomeys working on a case would
4 bill at an identical rate. Archer Norris subsequently negotiated new rates with this particular
5 insurance carrier that called for all attomeys to bill at $ 165 per hour. This change took effect in
6 November of 2010. CA CONSTRUCTION has made all necessary adjustments based on the
7 multiple hourly rates involved in the history of this case. The level of experience of the attomey
8 has no bearing on the rate of services charged in defense of CA CONSTRUCTION.
9 Third, the hourly rate for attomey fees is within the sound discretion of the trial judge and
10 must be based on the individual circumstances of the case. In Bihun v A T&T Info. Sys, Inc., the
11 Court found that an hourly rate of $450 per hour was appropriate under the facts of the case.
12 Bihun v. AT&T Info. Sys., Inc. (1993) 13 CaI.App.4th 976, 997, disapproved on other grounds in
13 Lakin v. Watkins Assoc. Indus. (1993) 6 Cal .4th 644, 664. Surely, as the Court previously found,
14 a rate of $185 per hour, regardless of the experience level of the attomey handling the case, is
15 reasonable based on the facts of this case. Plaintiffs have provided no supporting documents,
16 such as declarations from local constmction defect or insurance defense attomeys or other
17 research establishing that the rate of $185 per hour is unreasonable. As such, the Court should
18 again disregard Plaintiffs' arguments on the reasonableness of the hourly rate.
19 Finally, Plaintiffs math is simply wrong as it fails to account for both billing rates. An
20 adjustment was made to the hourly rate in November 2010. All services provided prior to this
21 date were billed at $185 per hour and all services provided after this date were billed at $165,
^^ C. The Court Should Reject Plaintiffs' Individual Requests For Fee Reductions
23 Plaintiffs seek a further reduction of $33,560.50 in attorneys' fees based on various
2^ grounds, none of which have merit based on the reasons outlined below. These fees were not
25 duplicative, were necessary to providing CA CONSTRUCTION a proper defense in this case, and
2o reasonable in amount. Further, Plaintiffs cite no authority that disallows these categories of fees.
27
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CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES
1 1. Insurance Carrier Communications:
2 Plaintiffs cite no authority indicating why these fees are not recoverable and really make
3 no sensible argument on how communicating with the insurance carrier does not constitute
4 "defending the case." All significant strategic and financial decisions (i.e. whether to retain an
5 expert, whether to extend a settlement offer, whether to file a dispositive motion versus a standard
6 answer, whether to file a discovery motion, and whether to settle or try the case) were decisions
7 arrived at after consultation with the client, insurance carrier, and counsel. This procedure was
8 followed in this case and most definitely constitutes "defending the case". These fees were
9 necessary to the defense of the case, reasonable in amount, and are recoverable in this matter
10 I 2. Dealing With Other Parties To The Action:
11 Plaintiffs cite no authority indicating why these fees are not recoverable or why they are
12 unreasonable. Plaintiffs set this whole chain of events in motion. But for Plaintiffs filing this
13 meritless action, which they were thoroughly defeated on, CA CONSTRUCTION would not have
14 been required to file cross-complaints against other potentially culpable parties, respond to other
15 parties' cross-complaints, serve and respond to written discovery, or take other defensive action
16 in an effort to extract CA CONSTRUCTION from the case. These actions were part in parcel to
17 defending against Plaintiffs' claims, which ultimately resulted in the defense verdict at trial,
18 3. Meritless Discovery Motion:
19 Plaintiffs cite to no authority indicating why these fees are not recoverable. This case had
20 protracted discovery. Plaintiffs' counsel repeatedly failed to obtain verified discovery responses
21 from her clients despite lulling CA CONSTRUCTION into believing they were forthcoming.
22 Unverified discovery responses would be meaningless at trial based on how many times Plaintiffs
23 changed their story in this case. Thus, CA CONSTRUCTION acted in good faith when it filed
24 this motion to compel verified discovery responses. The outcome of the motion is irrelevant.
25 4. Duplicative Work:
26 As to Plaintiffs' complaint on the expert deposition notices, they involve more than
27 simply drafting the notice. Preparation of each notice involves the following tasks: (1) A review
28 of the expert disclosure and professional resume; (2) Preliminary documents produced by that
NIC34I/1137901-1 4
CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES
1 expert; and (3) An analysis of the preliminary opinions the expert will likely give. This process
2 ultimately results in a decision of whether to take and pay for a particular expert's deposition.
3 The entry is more accurately described as reviewing that expert's file and preparing the notice.
4 Thus, a 0.4 entry for each one is conservative, to say the least.
5 As to Motions in Limine 1 to 10, these motions needed substantive revisions in light of
6 the fact that Plaintiffs' amended their complaint three (3) separate times after the initial motions
7 were prepared. Also, several of these motions related to excluding or limiting Plaintiffs' experts,
8 who were deposed a second time prior to the trial. As such, the expert based motions needed to
9 be updated based on the additional testimony provided by Plaintiffs' experts. The fees were not
10 duplicative and they were necessary to prepare for the January 2011 trial.
11 As to the trial readiness conference, Gregory Federico prepared the documents for the
12 conference. He attended in light of this fact and because he would be assisting at trial. CA
13 CONSTRUCTION reminds the Court that it did not seek fees in connection with Mr. Federico's
14 trial attendance. Thus, the fees for the trial readiness conference are necessary and reasonable.
15 5. Bankmptcv Issues:
16 The March 19,2010 entry pertains to a review of Plaintiffs' Motion to Lift the Automatic
17 Stay to proceed solely against CA CONSTRUCTION'S insurance proceeds. These fees were
18 necessary to prepare for the March 19,2010 status conference with your Honor to advise him of
19 the current status of the bankruptcy. Plaintiffs' efforts to get this case on track in the state Court,
20 and whether it was appropriate to set a new trial date. They are necessary to the defense.
21 The April 6/8, 2010 entries were necessary to evaluate Plaintiffs' efforts to lift the
22 bankraptcy stay to proceed against insurance proceeds and the resumption of the state action.
23 The January 20, 2011 entry for monitoring the bankruptcy for $27.00 should be deleted.
24 6. Unnecessary Time:
25 As far as the mediation, it began at 9:00 a.m. Time was spent traveling to and from the
26 mediation. Prior to 9:00 a.m., time was spent meeting with the client, the client's foreman and
27 coverage counsel retained by the carrier defending the client. During the mediation, time was
28 spent in an initial conference with mediator Don Walter. Time was spent waiting. Time was
NIC341/1137901-1 5
CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES
1 spent with mediator Don Walter after Plaintiffs' abmptly left the mediation wherein he provided
2 his assessment of the case and his assessment that we were dealing with an unreasonable set of
3 Plaintiffs. Time was spent conferring v^th coverage counsel for the client after the mediation.
4 After the mediation, time was spent solely with the client and his foreman to discuss the next
5 stages of the case, namely trial preparation. The time is warranted, reasonable in amount, and
6 necessary to the defense of the client.
7 Trial summaries of each day's proceedings were necessary to document the witnesses
8 examined, issues covered, and to prepare for the next day. They were necessary to document trial
9 events in the event an appeal was necessary. They are necessary to the defense of the case.
10 CA CONSTRUCTION'S counsel worked 13 to 14 hour days during trial. Approximately
11 8 hours was spent on trial attendance, as Plaintiffs correctly point out. CA CONSTRUCTION'S
12 time records are accurate. The remaining time above the 8 hours was spent on preparing witness
13 outlines and reviewing various documents in preparation for those witnesses. Although Plaintiffs'
14 counsel might not have chosen to spend this amount of time on this trial, CA CONSTRUCTION
15 spent an appropriate amount of time in light of the result it achieved.
16 Although CA CONSTRUCTION appreciates Plaintiffs' counsel's insight in what it takes
17 to be a competent trial attomey, her statements are misplaced. Mr. Rose's time spent researching
18 the case and statutory law associated with the attomeys' fees motion and opposition to Plaintiffs'
19 Motion to Tax was not duplicative, was reasonable in amount, and was instrumental in receiving
20 a fiill award of costs and a yet to be determined amount of attorneys' fees.
21 7. Time Spent On Cross-Complaint.
22 CA CONSTRUCTION filed its cross-complaint against Plaintiffs in a good faith belief it
23 was necessary to adequately protect its interests and to pursue Plaintiffs for their role in this case.
24 The disposition of that cross-complaint is irrelevant because it was necessitated by Plaintiffs'
25 complaint in the first place. As such, attomeys' fees in connection with it are recoverable.
^^ D. Plaintiffs Did Not Object To CA Construction's Request For Attorneys' Fees
27 In Connection With Pursuing Its Fee Claim
2g Plaintiffs have not objected to CA CONSTRUCTION's request for $9,219.00 in fees
N1C34I/1I3790I-1 6
CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES
1 incurred since Febmary 2, 2011 in pursuit of its fees and cost claims. Thus, this amount should
2 be awarded to CA CONSTRUCTION.
3 II. CONCLUSION
4 Based on the foregoing, CA CONSTRUCTION respectftilly requests that this Court
5 award it attorneys' fees in the amount of $187.644.00 ($178,425.00 - previously requested fees;
6 and $9,219.00 - fees incurred since February 2,2011 in the pursuit of its fees and cost claims).
7 Also, CA CONSTRUCTION requests that any award and judgment reflect that it is entitled to
8 recover interest and any costs and fees it may incur in enforcing thejudgment against Plaintiffs.
9 In the altemative, CA CONSTRUCTION requests that this Court fix attomey's fees in an
10 amount it deems reasonable, just and proper in light of the complete defense verdict.
11
12 Dated: May 13,2011 ARCHER NORRIS
13
14
Gregory K. Federico
15 Attomeys for Defendants
RICHARD KIRK RUYBALID, individually,
16 and dba CA CONSTRUCTION
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N1C341/1137901-1
CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. y. Ronald Paul Britschgi, et al.
Sacramento County Superior Court Case No.: 07AS04450
3
1, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On May 13, 2011,1 caused the following docunient(s) to be served:
5
CA CONSTRUCTION SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ITS
6 MOTION FOR ATTORNEYS' FEES, EXPENSES AND COSTS
7 I j By placing a tme copy of the documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
8 address shown above following our ordinary business practices. I am readily familiar
9 with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
10 is placed for collection and mailing, it is deposited in the ordinary course of business
with the United States Postal Service with postage fiilly prepaid.
11
r~l By having a tme copy of the document(s) listed above transmitted by facsimile to the
12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
was reported as complete without ertor by a report issued by the transmitting facsimile
13
machine.
14
By placing a true copy of the document(s) listed above, in a box or other facility
15 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
16 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
17
r - | by having personal delivery by FIRST LEGAL SUPPORT SERVICES a tme copy of
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the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
19 address(es) set forth below.
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[SEE ATTACHED SERVICE LIST]
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I declare under penalty of perjury that the foregoing is tme and correct. Executed on May
22 13, 2011, at Sacramento, Califomia.
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
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Stephanie FInelli PLAINTIFFS
3 Law Offices of Stephanie J. Finelli
1007 Seventh Street, Suite 500 Tel: (916) 443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail sfineltl700@yahoo.com
5
Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Drive, Suite 245 Tel. (916) 988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email: rds@mwsblaw.com
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Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10 markdartenesmith@gmail.com
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NlC34i/608293-l
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) tjones@archernorris.com FILED/Ei^'BOBSEl 2. Gregory K. Federico (Bar No. 242184) gfederico(garchemorris.com 3 ARCHER NORRIS A Professional Law Corporation MAY 1 3 2Q11 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825-5537 By 5 Telephone: 916.646.2480 DEPUTY CLERK Facsimile: 916.646.5696 6 Attomeys for Defendant 7 RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE Case No. 07AS04450 ABBOTT, 13 CA CONSTRUCTION SUPPLEMENTAL Plaintiffs, REPLY BRIEF IN SUPPORT OF ITS 14 MOTION FOR ATTORNEYS' FEES, EXPENSES AND COSTS 15 RONALD PAUL BRITSCHGI, et al. 16 Defendants. Hearing Date: May 27, 2011 (continued) 17 Time: 9:00 a.m. Dept.: 43 18 Judge: Brian Van Camp 19 Action Filed: September 24, 2007 20 AND RELATED CROSS-ACTIONS. 21 22 Defendant RICHARD KIRK RUYBALID, individually and dba CA CONSTRUCTION 23 ("CA CONSTRUCTION") hereby files this supplemental reply to Plaintiffs FLORENTINE and 24 RODNEY ABBOTT ("Plaintiffs") late filed Supplemental Opposition regarding attorneys' fees. 25 I. ARGUMENT 26 A. Plaintiffs' Supplemental Papers Are Late 27 A deadline is a deadline. Not surprisingly, Plaintiffs disregard this fact and seek to make 28 excuses for ignoring the filing deadlines contained in multiple court orders. NIC34I/1137901-1 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF YN SUPPORT OF ATTORNEYS' FEES 1 First, the April 7,2011 tentative ruling on Plaintiffs' Motion to Tax Costs and CA 2 CONSTRUCTION'S Motion for Attomeys' Fees clearly indicates that Plaintiffs' supplemental 3 brief was due by close of business on April 28, 2011. No response was served before this date. 4 Second, the April 28, 2011 deadline was reaffirmed in the final ruling on Plaintiffs Motion 5 to Tax Costs, which was issued on April 13, 2011. No response was served before this date. 6 Third, on May 3, 2011, the Court issued its Notice of Court Unavailability/Amended 7 Hearing date on the continued Motion for Attomeys Fees. The Court served this notice on May 8 4,2011. In its Notice, the Court states "This order does not alter any current briefing schedules." 9 Plaintiffs' counsel was served with this notice two (2) days prior to filing their supplemental brief 10 on attorneys' fees on May 6, 2011. Despite being on express notice of the deadline in 3 orders, 11 Plaintiffs' state their failure to timely file supplemental papers was due to counsel's own altering 12 of the briefing schedule and the fact that CA CONSTRUCTION'S papers were "voluminous". 13 This charade must stop. The Court should disregard Plaintiffs' supplemental opposition 14 based on Plaintiffs failure to comply with court deadlines and failure to move this matter to fiall 15 resolution for all parties. 16 B. The Reasonableness Of Counsel's Rates Has Been Ruled On By The Court 17 Plaintiffs' attempt to revisit the reasonableness of counsel's hourly rate is improper 18 because the issue has already been decided by the Court. First, the April 7,2011 tentative ruling 19 and the April 13,2011 already decided this issue. As it pertains to attorneys' fees, the Court ruled 20 that CA CONSTRUCTION was clearly the prevailing party, it was entitled to its reasonable fees, 21 and its hourly rate was reasonable. Specifically, at page 3, the Court discusses the "lodestar" 22 method as the appropriate measure for fees, and states: 23 "Here, defendant claims $185 an hour for partners and associates and $100 for paralegals In its independent judgment, the Court 24 finds that the rates are reasonable in this community for the work performedfor the defendant in this case. The question, then, is 25 whether the number of hours was reasonable." 26 The Court mled the rate is reasonable based on community standards for this type of work. Based 27 on its prior mling, the Court should disregard the arguments that the hourly rate is unreasonable. 28 NIC34I/1137901-1 2 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES 1 Second, Plaintiffs' argument has no merit. Plaintiffs' appear to argue that an attorney's 2 hourly rate should be based on how many years they have practiced law. The $185 per hour rate 3 was negotiated with this carrier on an equal basis, meaning all attomeys working on a case would 4 bill at an identical rate. Archer Norris subsequently negotiated new rates with this particular 5 insurance carrier that called for all attomeys to bill at $ 165 per hour. This change took effect in 6 November of 2010. CA CONSTRUCTION has made all necessary adjustments based on the 7 multiple hourly rates involved in the history of this case. The level of experience of the attomey 8 has no bearing on the rate of services charged in defense of CA CONSTRUCTION. 9 Third, the hourly rate for attomey fees is within the sound discretion of the trial judge and 10 must be based on the individual circumstances of the case. In Bihun v A T&T Info. Sys, Inc., the 11 Court found that an hourly rate of $450 per hour was appropriate under the facts of the case. 12 Bihun v. AT&T Info. Sys., Inc. (1993) 13 CaI.App.4th 976, 997, disapproved on other grounds in 13 Lakin v. Watkins Assoc. Indus. (1993) 6 Cal .4th 644, 664. Surely, as the Court previously found, 14 a rate of $185 per hour, regardless of the experience level of the attomey handling the case, is 15 reasonable based on the facts of this case. Plaintiffs have provided no supporting documents, 16 such as declarations from local constmction defect or insurance defense attomeys or other 17 research establishing that the rate of $185 per hour is unreasonable. As such, the Court should 18 again disregard Plaintiffs' arguments on the reasonableness of the hourly rate. 19 Finally, Plaintiffs math is simply wrong as it fails to account for both billing rates. An 20 adjustment was made to the hourly rate in November 2010. All services provided prior to this 21 date were billed at $185 per hour and all services provided after this date were billed at $165, ^^ C. The Court Should Reject Plaintiffs' Individual Requests For Fee Reductions 23 Plaintiffs seek a further reduction of $33,560.50 in attorneys' fees based on various 2^ grounds, none of which have merit based on the reasons outlined below. These fees were not 25 duplicative, were necessary to providing CA CONSTRUCTION a proper defense in this case, and 2o reasonable in amount. Further, Plaintiffs cite no authority that disallows these categories of fees. 27 28 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES 1 1. Insurance Carrier Communications: 2 Plaintiffs cite no authority indicating why these fees are not recoverable and really make 3 no sensible argument on how communicating with the insurance carrier does not constitute 4 "defending the case." All significant strategic and financial decisions (i.e. whether to retain an 5 expert, whether to extend a settlement offer, whether to file a dispositive motion versus a standard 6 answer, whether to file a discovery motion, and whether to settle or try the case) were decisions 7 arrived at after consultation with the client, insurance carrier, and counsel. This procedure was 8 followed in this case and most definitely constitutes "defending the case". These fees were 9 necessary to the defense of the case, reasonable in amount, and are recoverable in this matter 10 I 2. Dealing With Other Parties To The Action: 11 Plaintiffs cite no authority indicating why these fees are not recoverable or why they are 12 unreasonable. Plaintiffs set this whole chain of events in motion. But for Plaintiffs filing this 13 meritless action, which they were thoroughly defeated on, CA CONSTRUCTION would not have 14 been required to file cross-complaints against other potentially culpable parties, respond to other 15 parties' cross-complaints, serve and respond to written discovery, or take other defensive action 16 in an effort to extract CA CONSTRUCTION from the case. These actions were part in parcel to 17 defending against Plaintiffs' claims, which ultimately resulted in the defense verdict at trial, 18 3. Meritless Discovery Motion: 19 Plaintiffs cite to no authority indicating why these fees are not recoverable. This case had 20 protracted discovery. Plaintiffs' counsel repeatedly failed to obtain verified discovery responses 21 from her clients despite lulling CA CONSTRUCTION into believing they were forthcoming. 22 Unverified discovery responses would be meaningless at trial based on how many times Plaintiffs 23 changed their story in this case. Thus, CA CONSTRUCTION acted in good faith when it filed 24 this motion to compel verified discovery responses. The outcome of the motion is irrelevant. 25 4. Duplicative Work: 26 As to Plaintiffs' complaint on the expert deposition notices, they involve more than 27 simply drafting the notice. Preparation of each notice involves the following tasks: (1) A review 28 of the expert disclosure and professional resume; (2) Preliminary documents produced by that NIC34I/1137901-1 4 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES 1 expert; and (3) An analysis of the preliminary opinions the expert will likely give. This process 2 ultimately results in a decision of whether to take and pay for a particular expert's deposition. 3 The entry is more accurately described as reviewing that expert's file and preparing the notice. 4 Thus, a 0.4 entry for each one is conservative, to say the least. 5 As to Motions in Limine 1 to 10, these motions needed substantive revisions in light of 6 the fact that Plaintiffs' amended their complaint three (3) separate times after the initial motions 7 were prepared. Also, several of these motions related to excluding or limiting Plaintiffs' experts, 8 who were deposed a second time prior to the trial. As such, the expert based motions needed to 9 be updated based on the additional testimony provided by Plaintiffs' experts. The fees were not 10 duplicative and they were necessary to prepare for the January 2011 trial. 11 As to the trial readiness conference, Gregory Federico prepared the documents for the 12 conference. He attended in light of this fact and because he would be assisting at trial. CA 13 CONSTRUCTION reminds the Court that it did not seek fees in connection with Mr. Federico's 14 trial attendance. Thus, the fees for the trial readiness conference are necessary and reasonable. 15 5. Bankmptcv Issues: 16 The March 19,2010 entry pertains to a review of Plaintiffs' Motion to Lift the Automatic 17 Stay to proceed solely against CA CONSTRUCTION'S insurance proceeds. These fees were 18 necessary to prepare for the March 19,2010 status conference with your Honor to advise him of 19 the current status of the bankruptcy. Plaintiffs' efforts to get this case on track in the state Court, 20 and whether it was appropriate to set a new trial date. They are necessary to the defense. 21 The April 6/8, 2010 entries were necessary to evaluate Plaintiffs' efforts to lift the 22 bankraptcy stay to proceed against insurance proceeds and the resumption of the state action. 23 The January 20, 2011 entry for monitoring the bankruptcy for $27.00 should be deleted. 24 6. Unnecessary Time: 25 As far as the mediation, it began at 9:00 a.m. Time was spent traveling to and from the 26 mediation. Prior to 9:00 a.m., time was spent meeting with the client, the client's foreman and 27 coverage counsel retained by the carrier defending the client. During the mediation, time was 28 spent in an initial conference with mediator Don Walter. Time was spent waiting. Time was NIC341/1137901-1 5 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES 1 spent with mediator Don Walter after Plaintiffs' abmptly left the mediation wherein he provided 2 his assessment of the case and his assessment that we were dealing with an unreasonable set of 3 Plaintiffs. Time was spent conferring v^th coverage counsel for the client after the mediation. 4 After the mediation, time was spent solely with the client and his foreman to discuss the next 5 stages of the case, namely trial preparation. The time is warranted, reasonable in amount, and 6 necessary to the defense of the client. 7 Trial summaries of each day's proceedings were necessary to document the witnesses 8 examined, issues covered, and to prepare for the next day. They were necessary to document trial 9 events in the event an appeal was necessary. They are necessary to the defense of the case. 10 CA CONSTRUCTION'S counsel worked 13 to 14 hour days during trial. Approximately 11 8 hours was spent on trial attendance, as Plaintiffs correctly point out. CA CONSTRUCTION'S 12 time records are accurate. The remaining time above the 8 hours was spent on preparing witness 13 outlines and reviewing various documents in preparation for those witnesses. Although Plaintiffs' 14 counsel might not have chosen to spend this amount of time on this trial, CA CONSTRUCTION 15 spent an appropriate amount of time in light of the result it achieved. 16 Although CA CONSTRUCTION appreciates Plaintiffs' counsel's insight in what it takes 17 to be a competent trial attomey, her statements are misplaced. Mr. Rose's time spent researching 18 the case and statutory law associated with the attomeys' fees motion and opposition to Plaintiffs' 19 Motion to Tax was not duplicative, was reasonable in amount, and was instrumental in receiving 20 a fiill award of costs and a yet to be determined amount of attorneys' fees. 21 7. Time Spent On Cross-Complaint. 22 CA CONSTRUCTION filed its cross-complaint against Plaintiffs in a good faith belief it 23 was necessary to adequately protect its interests and to pursue Plaintiffs for their role in this case. 24 The disposition of that cross-complaint is irrelevant because it was necessitated by Plaintiffs' 25 complaint in the first place. As such, attomeys' fees in connection with it are recoverable. ^^ D. Plaintiffs Did Not Object To CA Construction's Request For Attorneys' Fees 27 In Connection With Pursuing Its Fee Claim 2g Plaintiffs have not objected to CA CONSTRUCTION's request for $9,219.00 in fees N1C34I/1I3790I-1 6 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES 1 incurred since Febmary 2, 2011 in pursuit of its fees and cost claims. Thus, this amount should 2 be awarded to CA CONSTRUCTION. 3 II. CONCLUSION 4 Based on the foregoing, CA CONSTRUCTION respectftilly requests that this Court 5 award it attorneys' fees in the amount of $187.644.00 ($178,425.00 - previously requested fees; 6 and $9,219.00 - fees incurred since February 2,2011 in the pursuit of its fees and cost claims). 7 Also, CA CONSTRUCTION requests that any award and judgment reflect that it is entitled to 8 recover interest and any costs and fees it may incur in enforcing thejudgment against Plaintiffs. 9 In the altemative, CA CONSTRUCTION requests that this Court fix attomey's fees in an 10 amount it deems reasonable, just and proper in light of the complete defense verdict. 11 12 Dated: May 13,2011 ARCHER NORRIS 13 14 Gregory K. Federico 15 Attomeys for Defendants RICHARD KIRK RUYBALID, individually, 16 and dba CA CONSTRUCTION 17 18 19 20 21 22 23 24 25 26 27 28 N1C341/1137901-1 CA CONSTRUCTION'S SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ATTORNEYS' FEES 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. y. Ronald Paul Britschgi, et al. Sacramento County Superior Court Case No.: 07AS04450 3 1, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On May 13, 2011,1 caused the following docunient(s) to be served: 5 CA CONSTRUCTION SUPPLEMENTAL REPLY BRIEF IN SUPPORT OF ITS 6 MOTION FOR ATTORNEYS' FEES, EXPENSES AND COSTS 7 I j By placing a tme copy of the documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business 8 address shown above following our ordinary business practices. I am readily familiar 9 with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 10 is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service with postage fiilly prepaid. 11 r~l By having a tme copy of the document(s) listed above transmitted by facsimile to the 12 person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission was reported as complete without ertor by a report issued by the transmitting facsimile 13 machine. 14 By placing a true copy of the document(s) listed above, in a box or other facility 15 regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 16 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 17 r - | by having personal delivery by FIRST LEGAL SUPPORT SERVICES a tme copy of 18 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 19 address(es) set forth below. 20 [SEE ATTACHED SERVICE LIST] 21 I declare under penalty of perjury that the foregoing is tme and correct. Executed on May 22 13, 2011, at Sacramento, Califomia. 23 24 25 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie FInelli PLAINTIFFS 3 Law Offices of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Tel: (916) 443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail sfineltl700@yahoo.com 5 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Drive, Suite 245 Tel. (916) 988-3857 7 Folsom, CA 95630 Fax:(916)988-5296 Email: rds@mwsblaw.com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 markdartenesmith@gmail.com 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NlC34i/608293-l SERVICE LIST