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STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tei 916-443-2144
fax 916-443-1511
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Attomey for Plaintiffs,
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FLORENTINE and RODNEY ABBOTT
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7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
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10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450
11 Plaintiffs, OPPOSITION TO SUPPLEMENTAL BRIEF
RE MOTION FOR ATTORNEY FEES;
12 vs. DECLARATION OF STEPHANIE J. FINELLI
13 RONALD BRITSCHGI, et. al., Trial Date: January 18,2011
Judgment- February 3, 2011
14 Defendants
Hearing: May 27, 2011
15 Time: 9:00 a.m.
16 and related cross-actions Dept: 43
Judge: Brian Van Camp
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18 I. INTRODUCTION
19 Plaintiffs present this opposition to the supplemental brief filed by Defendants on April
20 18, 2011. Given that the hearing date of May 13, 2011 was continued to May 20, 2011, plaintiffs
21 are filing this opposition and serving it by fax 10 court days before the hearing. Although the
22 tentative ruling has provided that the opposition should be filed no later than April 28, 2011,
23 plaintiffs' counsel re-calendared the due date of the opposition in light of the continuance of the
24 hearing to May 20, 2011. (Declaration of Stephanie J. Finelli ["Finelli Decl."] at ^j 2.)
25 The supplemental papers provided by defendants are voluminous. And they include
26 many entries that are simply not recoverable. In preparing the instant opposition, plaintiffs
27 counsel had to review dozens of pages of small type to ascertain the purpose of billing entry
28 This simply could not be done and a coherent opposition prepared by April 28, 2011. (Ibid.)
Opposition to Motion For Attorney Fees - 1
1 In summary, plaintiffs have discovered several different categories of entry that are
2 simply not recoverable as reasonable attomey fees necessitated by defendants' defense of this
3 action. Those unrecoverable entries include (1) time spent communicating with the insurance
4 adjuster; (2) time spent dealing with other defendants and cross-claims involving those other
5 defendants; (3) time spent on a discovery motion defendants brought which was denied and for
6 which plaintiffs recovered attomeys fees as sanctions; (4) time that is duplicative of other time
7 spent and billed; (5) time spent on bankruptcy issues, (6) time that was simply urmecessary; and
8 (7) time spent on the cross-complaint against plaintiff (See Exhibit A.)
9 Additionally, throughout most of the litigation, Gregory Federico, who was only a two-
10 year associate when he began working on the case, was billing out at $185.00 per hour. This was
11 later corrected to $165.00 per hour in December 2010. But most ofthe time he spent on the case
12 was at an unreasonably high rate. The fees sought must be reduced to a rate of $165.00 per hour.
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14 II. LEGAL ARGUMENT
15 A. Time Spent on Issues Other Than Defense of This Suit Is not Recoverable
16 Under both the contract and statute, this Court may only award reasonable attorney fees
17 and costs. (Exh A to Moving Papers; Civ.Code ^\1\1\PLCMGroup, Inc v Drex/er (2000) 22
18 Cal.4th 1084, 1094-1095.) To the extent defense counsel spent time on matters that were not
19 directly related to or necessary for the defense of plaintiffs' claims against CA Construction, said
20 fees are simply not recoverable.
21 Plaintiffs' counsel has gone through the dozens of pages of fees billed by defendants and
22 has discovered that many of them seek fees for time spent on other matters or matters that were
23 unnecessary or unrelated to the defense of the lawsuit by plaintiffs. The time plaintiffs seek to
24 subtract from the $187,644.00 CA Construction seeks in fees is set forth in the attached
25 spreadsheet marked as Exhibit A. The total of the fees that must be subtracted is $26,044.00
26 This is the amount that must be subtracted from the fees defendants seek.
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Opposition to Motion For Attorney Fees - 2
1 1. Insurance Carrier Communications: $12,019.50
2 Time counsel spent communicating with the insurance carrier is not time spent defending
3 the case, and is thus not recoverable as reasonable attomey fees. That time is set forth on the
4 attached spread sheet in the first column, along with the dates, hours spent and fees. In
5 calculating the time spent on a particular date, if more than one entry occurred for one day,
6 plaintiffs added up the time for that date and only provided the total on the spread sheet. For
7 instance, on 4/14/09, counsel had 3 separate entries for time spent conferencing with the
8 insurance adjuster and reviewing and editing the trial budget. The entry for 4/14/09 is thus .5
9 hours for $92 50. The total of all ofthis time, as reflected on the spread sheet is $12,019.50
10 This sum should be subtracted from the amount sought by defendants.
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12 2. Dealing With Other Parties to the Action: $7,086.50
13 Time spent dealing with other complaints and cross-complaints in this case—dealing
14 with Ronald Britschgi, Cadre Design, Construction Testing & Engineering (CTE) and Mark
15 Smith—was not reasonably necessary to the defense of this case against the Abbotts and is thus
16 not compensable That time is set forth on the attached spread sheet in the second column, along
17 with the dates, hours spent and fees. In calculating the time spent on a particular date, if more
18 than one entry occurred for one day, plaintiffs added up the time for that date and only provided
19 the total on the spread sheet. For instance, on 3/27/09, there are 6 separate entries of .1 hours
20 apiece spent corresponding with Britschgi's attorney and reviewing Britschgi's responses to
21 plaintiffs discovery requests. The entry for 3/27/09 is thus .6 hours for $111.00. The total of all
22 of this time, as reflected on the spread sheet is $7,086.50. This sum should be subtracted from
23 the amount sought by defendants.
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25 3. Meritless Discovery Motion: $1,439.50
26 Time spent meeting and conferring and then pursuing CA Construction's discovery
27 motion against plaintiffs, whereby CA sought to compel plaintiffs to provide verifications more
28 than a year after time had expired for CA to do so is also not recoverable. On January 3, 2011,
Opposition to Motion For Attorney Fees - 3
this Court denied that motion and awarded sanctions to plaintiffs in the amount of $800.00.
Thus, time spent pursuing this motion was not reasonably necessary to the defense of this case
That time is set forth on the attached spread sheet on the fourth page, along with the dates, hours
spent and fees. The total is $1,439.50. This sum should be subtracted from the amount sought
by defendants.
4. Duplicative Work: $1,758.50
Plaintiffs have also identified duplicative time charged by CA Construction's attomeys
9 For instance, on 3/27/09, counsel billed .4 hours on four separate entnes to draft a notice of
10 taking expert depositions. But all four of the notices were virtually identical except for the name
11 ofthe deponent and the date and time ofthe deposition. This should have taken no more than the
12 .4 hours to draft the initial notice. The additional 1.2 hours is duplicative and should be reduced
13 Likewise, on December 2, 2010, defense counsel spent 4 hours on motions in limine 1
14 through 10—even though he had already prepared those motions in preparation for the May 2009
15 trial between May 2 and May 4, 2009, and again on May 9, 2009. This 4 hours is duplicative
16 and non-recoverable.
17 On January 14, 2011, defendant billed 3.1 hours for Todd Jones to attend the trial
18 readiness conference, and another 2.5 hours for Gregory Federico to attend the same conference
19 This was unnecessary. The 2.5 hours for Mr. Federico's time must be subtracted.
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And on January 17, 2011, Todd Jones billed 2.7 hours to review and amend the witness
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list, exhibit list, and witness contact information. But earlier in January, defense counsel had
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already spent several hours on the exhibit list and witness list. This time is duplicative and not
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recoverable.
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The total duplicative time is set forth on the attached spread sheet on the fourth page
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along with the dates, hours spent and fees. The total is $1,758.50. This sum should be
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subtracted from the amount sought by defendants.
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Opposition to Motion For Attorney Fees - 4
1 5. Bankruptcy Issues: $212.00
2 Defendants did not subtract out 1.3 hours over 4 separate days for time spent on
3 bankruptcy issues. This time is not recoverable. The total time is set forth in the first column on
4 the attached spread sheet on page 5, along with the dates, hours spent and fees. The total is
5 $212.00. This sum should be subtracted from the amoimt sought by defendants.
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7 6. Unnecessary Time: $3,437.50
8 Plaintiffs have also reviewed the billings for time that was simply unnecessary. Fot
9 instance, defendants have reiterated that plaintiffs left the September 2010 mediation less than an
10 hour after it began. Plaintiffs' counsel neglected to refute this during the lengthy hearing on the
II costs and expert fees. And yet they have charged a total of 5.8 hours for this mediation. Given
12 defendants' repeated contention that plaintiffs left the mediation less than an hour after it began
13 it strains credulity for counsel to seek almost 6 hours for this mediation. All but one ofthe hours
14 must have been unnecessary. Thus 4.8 hours should be subtracted from the 9/10/10 billing
15 Notably, this still leaves the 1 hoiu- defendants billed for the post-mediation discussion they had
16 with their client that day.
17 Each day of trial, Gregory Federico billed exactly 1 hour to "draft summary of trial
18 proceedings." This was urmecessary to the defense ofthe case, and was likely for transmission
19 to the insurance company. These 1 hour entries for January 18, 19, 20, 21, 24, 25, 26, and then 2
20 hours on January 29 must be subtracted.
21 Also, Todd Jones billed more than 8 hours on several days to try the case. But trial was
22 from 9:00 to 4:30 p.m.—a total of 7.5 hours. Even giving another V2 hour for early arrival and
23 departure, this is 8 hours. Plaintiffs have subtracted the amounts over 8 hours that Mr. Jones
24 billed to try the case on January 25 and 26. Note this still leaves many hours Mr. Jones billed to
25 prepare for trial on those days.
26 On February 3, 2011, a Marie Cantrell spent an entire hour creating the attorney fees
27 matrix. While this may have been helpful to the motion for fees, it seems to be something that
28
Opposition to Motion For Attorney Fees - 5
should already have been prepared in order for defense counsel to be paid in this case. It should
not be recoverable.
Then on February 4, 2011, a Jason Rose spent a whopping 3.5 hours figuring out the
procedure for pursuing attomeys fees and costs. Plaintiffs are at a loss to determine how this
could have taken more than a few minutes; the basis for defendants' motion for attorney fees was
the contract, and the basis for costs is a statute. Any trial attorney would know this. And
defense counsel spent many additional hours thereafter conducting legal research regarding the
fees and costs. This 3.5 hours must be subtracted.
The total urmecessary time is set forth on the attached spread sheet on the fourth page
10 along with the dates, hours spent and fees. The total is $3,437.50. This sum should be
11 subtracted from the amount sought by defendants.
12
13 7. Time on Cross-complaint: $90.50
14 On November 17, 2009 and December 22, 2009, defense counsel spent time on their
15 cross-complaint against plaintiffs. This time is not recoverable, as defendants did not prevail on
16 that cross-complaint. The $90 50 should be subtracted.
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B. Gregory Federico's Rate Is too High
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When Gregory Federico began billing on this case, he began billing out at $185.00 an
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hour. This was in October of 2008. Mr. Federico only became licensed as an attorney in May
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2006—a mere two years prior. And yet his billing rate was the same as that of Todd Jones and
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Jason Molinelli—who were much more experienced attorneys. This rate of $185 is unreasonably
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high. At best, his rate should be $165.00 per hour.
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In the initial motion for attomey fees, defendants stated that Mr. Federico spent 664 5
25
hours on the case In the supplemental papers, they have subtracted out 111.7 hours, thus leaving
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552.8 hours. Even assuming this time was all reasonable and necessary to the defense of the
27
action (it is not as set forth above), this is a total of $91,212.00, not the $98,728.50 that is
28
Opposition to Motion For Attorney Fees - 6
1 apparently being sought by the motion ($119,116.50 minus $20,388). This is a further reduction
2 of $7,516.50 in the amount sought.
3
4 C. Conclusion
5 Many of the fees sought by CA Construction are simply not recoverable. Of the
6 $187,644.00 sought, such fees must be reduced by $7,516.50 to account for the unreasonable
7 hourly rate of Gregory Federico. They should further be reduced by another $26,044.00, to
8 account for fees sought that were not reasonably incurred in defending the action by plaintiffs
9 herein, for a total reduction of $33,560.50 as set forth above.
10
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12 Dated: May 6,2011
Stephanie J. Finelli,
13
Attorney for Plaintiffs,
14 Florentine & Rodney Abbott
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Opposition to Motion For Attorney Fees - 7
1 DECLARATION OF STEPHANIE J. FINELLI
2 1. Stephanie J. Finelli, hereby declare, and if called as a witness would and could
3 competently testify as follows:
4 1 I am an attomey, duly licensed and practicing in the State of California. 1
5 represent plaintiffs herein.
6 2. I am filing this Opposition on May 6, 2011. Given that the hearing date of May
7 13, 2011 was continued to May 20, 2011, I am filing this opposition and serving it by fax 10
8 court days before the hearing. Although the tentative ruling provided that the opposition should
9 be filed no later than April 28, 2011,1 re-calendared the due date ofthe opposition in light ofthe
10 continuance ofthe hearing to May 20, 2011. The supplemental papers provided by defendants
11 are voluminous. And they include many entries that are simply not recoverable. In preparing the
12 instant opposition, I had to review dozens of pages of small type to ascertain the purpose ol
13 billing entry. This simply could not be done and a coherent opposition prepared by April 28,
14 2011.
15 3. Attached hereto as Exhibit A and incorporated herein by reference is a true and
16 correct copy of a spread sheet I put together in separate columns for each type of matter in which
17 the fees charged were not reasonably necessary for the defense of plaintiffs action. The first
18 column, encompassing pages 1-2 of Exhibit A are those involving communications with CA
19 Construction's insurance carrier. The second column, encompassing pages 1 through 3 oi
20 Exhibit A are those involving time spent regarding other parties to the action, other than
21 plaintiffs. On page 4 are two columns, regarding time spent on the meritless discovery matter, as
22 well as duplicative time. On page 5 are two columns, regarding time spent on the bankruptcy
23 filing, as well as urmecessary time. On page 6 is time spent on the cross-complaint. The
24 program I used to prepare the spreadsheet (Microsoft Excel) automatically calculated the time
25 and fees.
26 5. CA Construction filed a motion to compel plaintiffs to provide verifications to
27 discovery requests that had been served over a year beforehand. On January 3, 2011, this Court
28 denied CA Construction's mofion and awarded sancfions to plainfiffs in the amount of $800.00
Opposition to Motion For Attorney Fees - 8
A true and correct copy of this Minute Order is attached hereto as Exhibit B and incorporated
2 herein by reference
3 I declare under penalty of perjury under the laws of the State of California the foregoing
4 is tme and correct.
5
6 Dated: May (Q ,2011 By: K / -
7
Stephanie J. Finelli
Attomey for Plaintiffs,
8 Florentine & Rodney Abbott
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Opposition to Motion For Attorney Fees - 9
^^vK^^
\v^'
^+W__^dB5—
hours fees other Ds date hours 1fees
11/2/20Gg 09 166 5 11/7/200? 05 92 5
11/3/200? 02 37 5/12/200S 01 185
11/7/200Y 14 259 5/26/2002 0 2 37
11/8/200f 01 185 6/19/200S 01 185
2/1/200f 06 111 7/14/200? 04 74
2/7/200g 17 314 5 7/17/200? 04 74
2/13/200f 02 37 8/1/2001 03 55 5
3/11/200? 02 37 8/29/200? 01 185
4/1/200f 03 55 5 9/10/200^ 03 55 5
4/14/200Y 01 185 9/12/2003 1 185
4/23/2007 02 37 10/8/200/5 01 185
5/26/200? 02 37 10/10/200? 04 74
6/3/2007 25 462 5 10/13/200^ 04 74
6/4/2005 01 185 10/15/2007 01 185
6/10/200f 01 10 10/20/2007 01 185
7/16/200$ 24 444 10/23/2001^ 08 148
8/11/200? 02 37 10/27/2007> 15 277 5
9/5/200g 01 185 10/30/2003 03 55 5
9/9/200^ 03 55 5 11/3/200^ 01 185
9/10/200S 21 388 5 11/7/2002 01 185
9/14/200^ 02 37 11/13/200^ 03 55 5
10/3/200S 02 37 11/24/200^ 01 185
10/23/200^ 06 111 12/22/2007> 02 37
10/27/200^ 04 74 1/12/2008 06 111
11/10/200? 02 37 2/4/2009 05 92 5
11/18/2002 02 37 3/4/2009 07 129 5
12/22/200? 19 351 5 3/6/2009 02 37
2/4/2009 • 1 8 333 3/11/2009 04 74
2/9/2009 06 111 3/12/2009 05 92 5
3/11/2009 01 185 3/16/2009 14 259
3/27/2009 04 74 3/17/2009 05 92 5
4/10/2009 33 610 5 3/18/2009 03 55 5
4/11/2009 18 333 3/20/2009 03 55 5
4/13/2009 3 555 3/23/2009 02 37
4/14/2009 05 92 5 3/24/2009 01 185
4/30/2009 02 37 3/25/2009 02 37
5/11/2009 07 129 5 3/26/2009 03 55 5
5/13/2009 06 111 3/27/2009 06 111
6/23/2009 09 166 5 4/4/2009 03 55 5
6/24/2009 03 55 5 4/6/2009 02 37
7/6/2009 01 185 4/8/2009 07 129 5
7/9/2009 02 37 4/15/2009 05 92 5
7/15/2009 08 148 4/16/2009 03 55 5
11/19/2009 09 166 5 4/18/2009 01 185
11/23/2009 07 129 5 4/21/2009 03 55 5
1/4/2010 01 185 4/26/2009 02 37
1/5/2010 26 481 4/29/2009 01 185
1/13/2010 17 314 5 5/1/2009 02 37
1/15/2010 02 37 5/7/2009 24 444
1/19/2010 02 37 6/24/2009 02 37
1/26/2010 01 185 7/2/2009 01 185
ex.\n-(\
&
1/27/2010 07 129 5 8/26/2009 01 185
1/28/2010 02 37 9/1/2009 02 37
2/3/2010 01 185 9/19/2009 01 185
2/8/2010 02 37 10/1/2009 02 37
2/9/2010 05 92 5 11/2/2009 02 37
2/25/2010 05 92 5 11/10/2009 01 185
2/27/2010 3 555 11/13/2009 09 166 5
3/15/2010 1.2 222 11/17/2009 02 37
4/8/2009 11 203 5 11/19/2009 02 37
4/23/2010 08 148 11/24/2009 01 185
5/7/2010 0,4 74 12/16/2009 04 74
5/12/2010 02 37 12/18/2009 01 185
5/25/2010 02 37 12/28/2009 08 148
6/1/2010 07 129 5 12/29/2009 25 462 5
6/16/2010 01 185 12/30/2009 07 129 5
7/14/2010 11 203 5 12/31/2009 02 37
7/15/2010 01 185 1/4/2010 02 37
7/16/2010 06 111 1/6/2010 06 111
7/21/2010 01 185 1/7/2010 01 185
8/2/2010 01 185 1/13/2010 02 37
9/7/2010 24 444 1/14/2010 01 185
9/8/2010 07 129 5 3/1/2010 01 185
9/10/2010 02 37 3/2/2010 01 185
9/13/2010 06 111 3/15/2010 02 37
9/14/2010 04 74 3/17/2010 03 55 5
9/28/2009 02 37 3/18/2010 03 55 5
9/29/2010 03 55 5 3/29/2010 07 129 5
10/8/2010 01 185 3/31/2009 02 37
10/15/2010 01 185 4/10/2010 01 185
11/9/2009 2 370 4/20/2010 01 185
11/17/2010 05 92 5 4/21/2010 02 37
11/19/2010 14 259 4/22/2010 01 18 5
11/30/2010 08 132 4/23/2010 09 166 5
12/3/2010 08 132 4/29/2010 01 185
12/6/2010 14 231 5/12/2010 01 185
12/13/2010 1 165 5/13/2010 01 185
12/20/2010 05 82 5 5/20/2010 04 74
1/5/2011 01 165 5/21/2010 01 185
——4-/14V?Q-1-1-
• ^ 1/ i \ J l ^ T y - t ~ t n R
V^-tJ
1.00
1 SJC:—' - 6/7/2010 12 222
total 65 6 12019 5 6/24/2010 03 55 5
7/6/2010 01 185
7/20/2010 02 37
7/28/2010 01 185
8/24/2010 02 37
8/25/2010 04 74
9/16/2010 04 74
11/18/2009 02 37
11/19/2010 01 185
12/10/2010 02 33
12/15/2010 03 49 5
12/23/2010 06 99
12/27/2010 04 66
1/4/2011 02 33
• 1/5/20JM ni 16,5 ^^
rtotal 37 6 7086 5 f
(CrCG^y^-^ iflA^lk/
Discovery, date hours fees
5/4/2009 0 2 37
12/1/2010 06 99
12/2/2010 34 561
12/6/2010 02 33
12/22/2010 3 495
12/23/2010 13 214 5
total 87 1439 5
D-^/licotfi'^Ti ( A ^
Duplic date hours fees
3/27/2009 12 222
4/30/2009 01 185
12/2/2010 4 660
1/14/2011 25 412 5
1/17/2011 27 445 5
/- total T0""5~ ^1758-5
&
Y>^^'^''fTC^^ —— 1
JcO(D^Ci2.SSClAy / / ^
BK date time fees Mediation date time fees
3/19/2010 08 148 and 9/10/210 48 888
4/6/2010 01 185 unnecces
4/8/2010 01 185 1/18/2011 1 165
1/20/2011 03 27 1/19/2011 1 165
TOTAL 13 212 1/20/2011 1 165
1/21/2011 1 165
1/24/2011 1 165
1/25/2011 1 165
1/25/2011 1 165
1/26/2011 08 132
1/26/2011 1 165
1/29/2011 2 330
2/3/2011 1 90
2/4/2011 35 577 5
total 45 3337 5
IX- Co^V'^^
X-C date time fees
11/17/2009 04 74
12/22/2010 01 165
total 05 90 5
}
NOTICE:
To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858
(Department 53) by 4 00 p m the court day before this hearing and advise opposing counsel If no call is
made, the tentative ruling becomes the order of the court Local Rule 3 04
Department 53
Superior Court of California
800 Ninth Street, Srd Floor
Kevin R. Culhane, Judge
E. Brown, Clerk
V. Carroll, CA, Bailiff
Monday, January 03, 2011, 2:00 PM
Item 1 07AS04450
Rodney Abbott vs. Ronald Paul Britschgi
Nature of Proceeding Motion to Compel 1 Form 2 Production of Documents 3 Admissions
Filed By Federico, Gregory K
Moving party has withdrawn the motions to compel responses to form
interrogatories and requests for production. The motion to have admissions deemed
admitted is denied
Defendants are correct that the 45 day rule does not apply as the responses
were unverified However, the motion is untimely because discovery is closed and has
been closed since the initial trial date of May 11, 2009 (It was reopened for limited
purposes not germane to this motion on July 20, 2009 )
Defendants contend that plaintiffs promised them several times that verifications
would be provided, most recently on September 27, 2010 Therefore plaintiffs should
be estopped from arguing the motion is untimely. This contention is not convincing
and does not explain why defendants did not file this motion before the discovery
cutoff date.
Defendants are sanctioned $800 00 (four hours) for filing a motion without
substantial justification and requiring plaintiffs to incur the costs of opposing it
Sanctions shall be paid by February 3, 2011 If sanctions are not paid by the due date,
prevailing party may submit a formal order for enforcement purposes Newland v
Supenor Court (1995) 40 Cal App 4 608, 610
The minute order is effective immediately. No formal order pursuant to CRC
Rule 3.1312 or further notice is required.
Item 2 07AS05031
Sequoia Insurance Company vs. Klamath Investments, LLC.
PROOF OF SERVICE
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen of the United States and a resident of the Coimty of Sacramento I am,
and at all times mentioned herein was, an active member of the State Bar of Califomia and
not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite
500, Sacramento, Califomia 95814.
On May 6, 2011, pursuant to CCP §1013A(2), I served the following:
OPPOSITION TO SUPPLEMENTAL BRIEF RE MOTION FOR ATTORNEY FEES;
DECLARATION OF STEPHANIE J. FINELLI
BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following:
Gregory Federico
Archer Norris
301 University Ave , Suite 110
Sacramento, CA 95825
fax 916-646-5696
I declare under penalty of perjury under the laws of the State of Califomia the
foregoing is tme and correct.
DATED: May 6, 2011
Stephanie
Preview
STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tei 916-443-2144 fax 916-443-1511 4 Attomey for Plaintiffs, 5 FLORENTINE and RODNEY ABBOTT 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450 11 Plaintiffs, OPPOSITION TO SUPPLEMENTAL BRIEF RE MOTION FOR ATTORNEY FEES; 12 vs. DECLARATION OF STEPHANIE J. FINELLI 13 RONALD BRITSCHGI, et. al., Trial Date: January 18,2011 Judgment- February 3, 2011 14 Defendants Hearing: May 27, 2011 15 Time: 9:00 a.m. 16 and related cross-actions Dept: 43 Judge: Brian Van Camp 17 18 I. INTRODUCTION 19 Plaintiffs present this opposition to the supplemental brief filed by Defendants on April 20 18, 2011. Given that the hearing date of May 13, 2011 was continued to May 20, 2011, plaintiffs 21 are filing this opposition and serving it by fax 10 court days before the hearing. Although the 22 tentative ruling has provided that the opposition should be filed no later than April 28, 2011, 23 plaintiffs' counsel re-calendared the due date of the opposition in light of the continuance of the 24 hearing to May 20, 2011. (Declaration of Stephanie J. Finelli ["Finelli Decl."] at ^j 2.) 25 The supplemental papers provided by defendants are voluminous. And they include 26 many entries that are simply not recoverable. In preparing the instant opposition, plaintiffs 27 counsel had to review dozens of pages of small type to ascertain the purpose of billing entry 28 This simply could not be done and a coherent opposition prepared by April 28, 2011. (Ibid.) Opposition to Motion For Attorney Fees - 1 1 In summary, plaintiffs have discovered several different categories of entry that are 2 simply not recoverable as reasonable attomey fees necessitated by defendants' defense of this 3 action. Those unrecoverable entries include (1) time spent communicating with the insurance 4 adjuster; (2) time spent dealing with other defendants and cross-claims involving those other 5 defendants; (3) time spent on a discovery motion defendants brought which was denied and for 6 which plaintiffs recovered attomeys fees as sanctions; (4) time that is duplicative of other time 7 spent and billed; (5) time spent on bankruptcy issues, (6) time that was simply urmecessary; and 8 (7) time spent on the cross-complaint against plaintiff (See Exhibit A.) 9 Additionally, throughout most of the litigation, Gregory Federico, who was only a two- 10 year associate when he began working on the case, was billing out at $185.00 per hour. This was 11 later corrected to $165.00 per hour in December 2010. But most ofthe time he spent on the case 12 was at an unreasonably high rate. The fees sought must be reduced to a rate of $165.00 per hour. 13 14 II. LEGAL ARGUMENT 15 A. Time Spent on Issues Other Than Defense of This Suit Is not Recoverable 16 Under both the contract and statute, this Court may only award reasonable attorney fees 17 and costs. (Exh A to Moving Papers; Civ.Code ^\1\1\PLCMGroup, Inc v Drex/er (2000) 22 18 Cal.4th 1084, 1094-1095.) To the extent defense counsel spent time on matters that were not 19 directly related to or necessary for the defense of plaintiffs' claims against CA Construction, said 20 fees are simply not recoverable. 21 Plaintiffs' counsel has gone through the dozens of pages of fees billed by defendants and 22 has discovered that many of them seek fees for time spent on other matters or matters that were 23 unnecessary or unrelated to the defense of the lawsuit by plaintiffs. The time plaintiffs seek to 24 subtract from the $187,644.00 CA Construction seeks in fees is set forth in the attached 25 spreadsheet marked as Exhibit A. The total of the fees that must be subtracted is $26,044.00 26 This is the amount that must be subtracted from the fees defendants seek. 27 28 Opposition to Motion For Attorney Fees - 2 1 1. Insurance Carrier Communications: $12,019.50 2 Time counsel spent communicating with the insurance carrier is not time spent defending 3 the case, and is thus not recoverable as reasonable attomey fees. That time is set forth on the 4 attached spread sheet in the first column, along with the dates, hours spent and fees. In 5 calculating the time spent on a particular date, if more than one entry occurred for one day, 6 plaintiffs added up the time for that date and only provided the total on the spread sheet. For 7 instance, on 4/14/09, counsel had 3 separate entries for time spent conferencing with the 8 insurance adjuster and reviewing and editing the trial budget. The entry for 4/14/09 is thus .5 9 hours for $92 50. The total of all ofthis time, as reflected on the spread sheet is $12,019.50 10 This sum should be subtracted from the amount sought by defendants. 11 12 2. Dealing With Other Parties to the Action: $7,086.50 13 Time spent dealing with other complaints and cross-complaints in this case—dealing 14 with Ronald Britschgi, Cadre Design, Construction Testing & Engineering (CTE) and Mark 15 Smith—was not reasonably necessary to the defense of this case against the Abbotts and is thus 16 not compensable That time is set forth on the attached spread sheet in the second column, along 17 with the dates, hours spent and fees. In calculating the time spent on a particular date, if more 18 than one entry occurred for one day, plaintiffs added up the time for that date and only provided 19 the total on the spread sheet. For instance, on 3/27/09, there are 6 separate entries of .1 hours 20 apiece spent corresponding with Britschgi's attorney and reviewing Britschgi's responses to 21 plaintiffs discovery requests. The entry for 3/27/09 is thus .6 hours for $111.00. The total of all 22 of this time, as reflected on the spread sheet is $7,086.50. This sum should be subtracted from 23 the amount sought by defendants. 24 25 3. Meritless Discovery Motion: $1,439.50 26 Time spent meeting and conferring and then pursuing CA Construction's discovery 27 motion against plaintiffs, whereby CA sought to compel plaintiffs to provide verifications more 28 than a year after time had expired for CA to do so is also not recoverable. On January 3, 2011, Opposition to Motion For Attorney Fees - 3 this Court denied that motion and awarded sanctions to plaintiffs in the amount of $800.00. Thus, time spent pursuing this motion was not reasonably necessary to the defense of this case That time is set forth on the attached spread sheet on the fourth page, along with the dates, hours spent and fees. The total is $1,439.50. This sum should be subtracted from the amount sought by defendants. 4. Duplicative Work: $1,758.50 Plaintiffs have also identified duplicative time charged by CA Construction's attomeys 9 For instance, on 3/27/09, counsel billed .4 hours on four separate entnes to draft a notice of 10 taking expert depositions. But all four of the notices were virtually identical except for the name 11 ofthe deponent and the date and time ofthe deposition. This should have taken no more than the 12 .4 hours to draft the initial notice. The additional 1.2 hours is duplicative and should be reduced 13 Likewise, on December 2, 2010, defense counsel spent 4 hours on motions in limine 1 14 through 10—even though he had already prepared those motions in preparation for the May 2009 15 trial between May 2 and May 4, 2009, and again on May 9, 2009. This 4 hours is duplicative 16 and non-recoverable. 17 On January 14, 2011, defendant billed 3.1 hours for Todd Jones to attend the trial 18 readiness conference, and another 2.5 hours for Gregory Federico to attend the same conference 19 This was unnecessary. The 2.5 hours for Mr. Federico's time must be subtracted. 20 And on January 17, 2011, Todd Jones billed 2.7 hours to review and amend the witness 21 list, exhibit list, and witness contact information. But earlier in January, defense counsel had 22 already spent several hours on the exhibit list and witness list. This time is duplicative and not 23 recoverable. 24 The total duplicative time is set forth on the attached spread sheet on the fourth page 25 along with the dates, hours spent and fees. The total is $1,758.50. This sum should be 26 subtracted from the amount sought by defendants. 27 28 Opposition to Motion For Attorney Fees - 4 1 5. Bankruptcy Issues: $212.00 2 Defendants did not subtract out 1.3 hours over 4 separate days for time spent on 3 bankruptcy issues. This time is not recoverable. The total time is set forth in the first column on 4 the attached spread sheet on page 5, along with the dates, hours spent and fees. The total is 5 $212.00. This sum should be subtracted from the amoimt sought by defendants. 6 7 6. Unnecessary Time: $3,437.50 8 Plaintiffs have also reviewed the billings for time that was simply unnecessary. Fot 9 instance, defendants have reiterated that plaintiffs left the September 2010 mediation less than an 10 hour after it began. Plaintiffs' counsel neglected to refute this during the lengthy hearing on the II costs and expert fees. And yet they have charged a total of 5.8 hours for this mediation. Given 12 defendants' repeated contention that plaintiffs left the mediation less than an hour after it began 13 it strains credulity for counsel to seek almost 6 hours for this mediation. All but one ofthe hours 14 must have been unnecessary. Thus 4.8 hours should be subtracted from the 9/10/10 billing 15 Notably, this still leaves the 1 hoiu- defendants billed for the post-mediation discussion they had 16 with their client that day. 17 Each day of trial, Gregory Federico billed exactly 1 hour to "draft summary of trial 18 proceedings." This was urmecessary to the defense ofthe case, and was likely for transmission 19 to the insurance company. These 1 hour entries for January 18, 19, 20, 21, 24, 25, 26, and then 2 20 hours on January 29 must be subtracted. 21 Also, Todd Jones billed more than 8 hours on several days to try the case. But trial was 22 from 9:00 to 4:30 p.m.—a total of 7.5 hours. Even giving another V2 hour for early arrival and 23 departure, this is 8 hours. Plaintiffs have subtracted the amounts over 8 hours that Mr. Jones 24 billed to try the case on January 25 and 26. Note this still leaves many hours Mr. Jones billed to 25 prepare for trial on those days. 26 On February 3, 2011, a Marie Cantrell spent an entire hour creating the attorney fees 27 matrix. While this may have been helpful to the motion for fees, it seems to be something that 28 Opposition to Motion For Attorney Fees - 5 should already have been prepared in order for defense counsel to be paid in this case. It should not be recoverable. Then on February 4, 2011, a Jason Rose spent a whopping 3.5 hours figuring out the procedure for pursuing attomeys fees and costs. Plaintiffs are at a loss to determine how this could have taken more than a few minutes; the basis for defendants' motion for attorney fees was the contract, and the basis for costs is a statute. Any trial attorney would know this. And defense counsel spent many additional hours thereafter conducting legal research regarding the fees and costs. This 3.5 hours must be subtracted. The total urmecessary time is set forth on the attached spread sheet on the fourth page 10 along with the dates, hours spent and fees. The total is $3,437.50. This sum should be 11 subtracted from the amount sought by defendants. 12 13 7. Time on Cross-complaint: $90.50 14 On November 17, 2009 and December 22, 2009, defense counsel spent time on their 15 cross-complaint against plaintiffs. This time is not recoverable, as defendants did not prevail on 16 that cross-complaint. The $90 50 should be subtracted. 17 18 B. Gregory Federico's Rate Is too High 19 When Gregory Federico began billing on this case, he began billing out at $185.00 an 20 hour. This was in October of 2008. Mr. Federico only became licensed as an attorney in May 21 2006—a mere two years prior. And yet his billing rate was the same as that of Todd Jones and 22 Jason Molinelli—who were much more experienced attorneys. This rate of $185 is unreasonably 23 high. At best, his rate should be $165.00 per hour. 24 In the initial motion for attomey fees, defendants stated that Mr. Federico spent 664 5 25 hours on the case In the supplemental papers, they have subtracted out 111.7 hours, thus leaving 26 552.8 hours. Even assuming this time was all reasonable and necessary to the defense of the 27 action (it is not as set forth above), this is a total of $91,212.00, not the $98,728.50 that is 28 Opposition to Motion For Attorney Fees - 6 1 apparently being sought by the motion ($119,116.50 minus $20,388). This is a further reduction 2 of $7,516.50 in the amount sought. 3 4 C. Conclusion 5 Many of the fees sought by CA Construction are simply not recoverable. Of the 6 $187,644.00 sought, such fees must be reduced by $7,516.50 to account for the unreasonable 7 hourly rate of Gregory Federico. They should further be reduced by another $26,044.00, to 8 account for fees sought that were not reasonably incurred in defending the action by plaintiffs 9 herein, for a total reduction of $33,560.50 as set forth above. 10 11 12 Dated: May 6,2011 Stephanie J. Finelli, 13 Attorney for Plaintiffs, 14 Florentine & Rodney Abbott 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Opposition to Motion For Attorney Fees - 7 1 DECLARATION OF STEPHANIE J. FINELLI 2 1. Stephanie J. Finelli, hereby declare, and if called as a witness would and could 3 competently testify as follows: 4 1 I am an attomey, duly licensed and practicing in the State of California. 1 5 represent plaintiffs herein. 6 2. I am filing this Opposition on May 6, 2011. Given that the hearing date of May 7 13, 2011 was continued to May 20, 2011, I am filing this opposition and serving it by fax 10 8 court days before the hearing. Although the tentative ruling provided that the opposition should 9 be filed no later than April 28, 2011,1 re-calendared the due date ofthe opposition in light ofthe 10 continuance ofthe hearing to May 20, 2011. The supplemental papers provided by defendants 11 are voluminous. And they include many entries that are simply not recoverable. In preparing the 12 instant opposition, I had to review dozens of pages of small type to ascertain the purpose ol 13 billing entry. This simply could not be done and a coherent opposition prepared by April 28, 14 2011. 15 3. Attached hereto as Exhibit A and incorporated herein by reference is a true and 16 correct copy of a spread sheet I put together in separate columns for each type of matter in which 17 the fees charged were not reasonably necessary for the defense of plaintiffs action. The first 18 column, encompassing pages 1-2 of Exhibit A are those involving communications with CA 19 Construction's insurance carrier. The second column, encompassing pages 1 through 3 oi 20 Exhibit A are those involving time spent regarding other parties to the action, other than 21 plaintiffs. On page 4 are two columns, regarding time spent on the meritless discovery matter, as 22 well as duplicative time. On page 5 are two columns, regarding time spent on the bankruptcy 23 filing, as well as urmecessary time. On page 6 is time spent on the cross-complaint. The 24 program I used to prepare the spreadsheet (Microsoft Excel) automatically calculated the time 25 and fees. 26 5. CA Construction filed a motion to compel plaintiffs to provide verifications to 27 discovery requests that had been served over a year beforehand. On January 3, 2011, this Court 28 denied CA Construction's mofion and awarded sancfions to plainfiffs in the amount of $800.00 Opposition to Motion For Attorney Fees - 8 A true and correct copy of this Minute Order is attached hereto as Exhibit B and incorporated 2 herein by reference 3 I declare under penalty of perjury under the laws of the State of California the foregoing 4 is tme and correct. 5 6 Dated: May (Q ,2011 By: K / - 7 Stephanie J. Finelli Attomey for Plaintiffs, 8 Florentine & Rodney Abbott 9 10 II 12 13 14 15 16 17 20 21 22 23 24 25 26 27 28 Opposition to Motion For Attorney Fees - 9 ^^vK^^ \v^' ^+W__^dB5— hours fees other Ds date hours 1fees 11/2/20Gg 09 166 5 11/7/200? 05 92 5 11/3/200? 02 37 5/12/200S 01 185 11/7/200Y 14 259 5/26/2002 0 2 37 11/8/200f 01 185 6/19/200S 01 185 2/1/200f 06 111 7/14/200? 04 74 2/7/200g 17 314 5 7/17/200? 04 74 2/13/200f 02 37 8/1/2001 03 55 5 3/11/200? 02 37 8/29/200? 01 185 4/1/200f 03 55 5 9/10/200^ 03 55 5 4/14/200Y 01 185 9/12/2003 1 185 4/23/2007 02 37 10/8/200/5 01 185 5/26/200? 02 37 10/10/200? 04 74 6/3/2007 25 462 5 10/13/200^ 04 74 6/4/2005 01 185 10/15/2007 01 185 6/10/200f 01 10 10/20/2007 01 185 7/16/200$ 24 444 10/23/2001^ 08 148 8/11/200? 02 37 10/27/2007> 15 277 5 9/5/200g 01 185 10/30/2003 03 55 5 9/9/200^ 03 55 5 11/3/200^ 01 185 9/10/200S 21 388 5 11/7/2002 01 185 9/14/200^ 02 37 11/13/200^ 03 55 5 10/3/200S 02 37 11/24/200^ 01 185 10/23/200^ 06 111 12/22/2007> 02 37 10/27/200^ 04 74 1/12/2008 06 111 11/10/200? 02 37 2/4/2009 05 92 5 11/18/2002 02 37 3/4/2009 07 129 5 12/22/200? 19 351 5 3/6/2009 02 37 2/4/2009 • 1 8 333 3/11/2009 04 74 2/9/2009 06 111 3/12/2009 05 92 5 3/11/2009 01 185 3/16/2009 14 259 3/27/2009 04 74 3/17/2009 05 92 5 4/10/2009 33 610 5 3/18/2009 03 55 5 4/11/2009 18 333 3/20/2009 03 55 5 4/13/2009 3 555 3/23/2009 02 37 4/14/2009 05 92 5 3/24/2009 01 185 4/30/2009 02 37 3/25/2009 02 37 5/11/2009 07 129 5 3/26/2009 03 55 5 5/13/2009 06 111 3/27/2009 06 111 6/23/2009 09 166 5 4/4/2009 03 55 5 6/24/2009 03 55 5 4/6/2009 02 37 7/6/2009 01 185 4/8/2009 07 129 5 7/9/2009 02 37 4/15/2009 05 92 5 7/15/2009 08 148 4/16/2009 03 55 5 11/19/2009 09 166 5 4/18/2009 01 185 11/23/2009 07 129 5 4/21/2009 03 55 5 1/4/2010 01 185 4/26/2009 02 37 1/5/2010 26 481 4/29/2009 01 185 1/13/2010 17 314 5 5/1/2009 02 37 1/15/2010 02 37 5/7/2009 24 444 1/19/2010 02 37 6/24/2009 02 37 1/26/2010 01 185 7/2/2009 01 185 ex.\n-(\ & 1/27/2010 07 129 5 8/26/2009 01 185 1/28/2010 02 37 9/1/2009 02 37 2/3/2010 01 185 9/19/2009 01 185 2/8/2010 02 37 10/1/2009 02 37 2/9/2010 05 92 5 11/2/2009 02 37 2/25/2010 05 92 5 11/10/2009 01 185 2/27/2010 3 555 11/13/2009 09 166 5 3/15/2010 1.2 222 11/17/2009 02 37 4/8/2009 11 203 5 11/19/2009 02 37 4/23/2010 08 148 11/24/2009 01 185 5/7/2010 0,4 74 12/16/2009 04 74 5/12/2010 02 37 12/18/2009 01 185 5/25/2010 02 37 12/28/2009 08 148 6/1/2010 07 129 5 12/29/2009 25 462 5 6/16/2010 01 185 12/30/2009 07 129 5 7/14/2010 11 203 5 12/31/2009 02 37 7/15/2010 01 185 1/4/2010 02 37 7/16/2010 06 111 1/6/2010 06 111 7/21/2010 01 185 1/7/2010 01 185 8/2/2010 01 185 1/13/2010 02 37 9/7/2010 24 444 1/14/2010 01 185 9/8/2010 07 129 5 3/1/2010 01 185 9/10/2010 02 37 3/2/2010 01 185 9/13/2010 06 111 3/15/2010 02 37 9/14/2010 04 74 3/17/2010 03 55 5 9/28/2009 02 37 3/18/2010 03 55 5 9/29/2010 03 55 5 3/29/2010 07 129 5 10/8/2010 01 185 3/31/2009 02 37 10/15/2010 01 185 4/10/2010 01 185 11/9/2009 2 370 4/20/2010 01 185 11/17/2010 05 92 5 4/21/2010 02 37 11/19/2010 14 259 4/22/2010 01 18 5 11/30/2010 08 132 4/23/2010 09 166 5 12/3/2010 08 132 4/29/2010 01 185 12/6/2010 14 231 5/12/2010 01 185 12/13/2010 1 165 5/13/2010 01 185 12/20/2010 05 82 5 5/20/2010 04 74 1/5/2011 01 165 5/21/2010 01 185 ——4-/14V?Q-1-1- • ^ 1/ i \ J l ^ T y - t ~ t n R V^-tJ 1.00 1 SJC:—' - 6/7/2010 12 222 total 65 6 12019 5 6/24/2010 03 55 5 7/6/2010 01 185 7/20/2010 02 37 7/28/2010 01 185 8/24/2010 02 37 8/25/2010 04 74 9/16/2010 04 74 11/18/2009 02 37 11/19/2010 01 185 12/10/2010 02 33 12/15/2010 03 49 5 12/23/2010 06 99 12/27/2010 04 66 1/4/2011 02 33 • 1/5/20JM ni 16,5 ^^ rtotal 37 6 7086 5 f (CrCG^y^-^ iflA^lk/ Discovery, date hours fees 5/4/2009 0 2 37 12/1/2010 06 99 12/2/2010 34 561 12/6/2010 02 33 12/22/2010 3 495 12/23/2010 13 214 5 total 87 1439 5 D-^/licotfi'^Ti ( A ^ Duplic date hours fees 3/27/2009 12 222 4/30/2009 01 185 12/2/2010 4 660 1/14/2011 25 412 5 1/17/2011 27 445 5 /- total T0""5~ ^1758-5 & Y>^^'^''fTC^^ —— 1 JcO(D^Ci2.SSClAy / / ^ BK date time fees Mediation date time fees 3/19/2010 08 148 and 9/10/210 48 888 4/6/2010 01 185 unnecces 4/8/2010 01 185 1/18/2011 1 165 1/20/2011 03 27 1/19/2011 1 165 TOTAL 13 212 1/20/2011 1 165 1/21/2011 1 165 1/24/2011 1 165 1/25/2011 1 165 1/25/2011 1 165 1/26/2011 08 132 1/26/2011 1 165 1/29/2011 2 330 2/3/2011 1 90 2/4/2011 35 577 5 total 45 3337 5 IX- Co^V'^^ X-C date time fees 11/17/2009 04 74 12/22/2010 01 165 total 05 90 5 } NOTICE: To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858 (Department 53) by 4 00 p m the court day before this hearing and advise opposing counsel If no call is made, the tentative ruling becomes the order of the court Local Rule 3 04 Department 53 Superior Court of California 800 Ninth Street, Srd Floor Kevin R. Culhane, Judge E. Brown, Clerk V. Carroll, CA, Bailiff Monday, January 03, 2011, 2:00 PM Item 1 07AS04450 Rodney Abbott vs. Ronald Paul Britschgi Nature of Proceeding Motion to Compel 1 Form 2 Production of Documents 3 Admissions Filed By Federico, Gregory K Moving party has withdrawn the motions to compel responses to form interrogatories and requests for production. The motion to have admissions deemed admitted is denied Defendants are correct that the 45 day rule does not apply as the responses were unverified However, the motion is untimely because discovery is closed and has been closed since the initial trial date of May 11, 2009 (It was reopened for limited purposes not germane to this motion on July 20, 2009 ) Defendants contend that plaintiffs promised them several times that verifications would be provided, most recently on September 27, 2010 Therefore plaintiffs should be estopped from arguing the motion is untimely. This contention is not convincing and does not explain why defendants did not file this motion before the discovery cutoff date. Defendants are sanctioned $800 00 (four hours) for filing a motion without substantial justification and requiring plaintiffs to incur the costs of opposing it Sanctions shall be paid by February 3, 2011 If sanctions are not paid by the due date, prevailing party may submit a formal order for enforcement purposes Newland v Supenor Court (1995) 40 Cal App 4 608, 610 The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. Item 2 07AS05031 Sequoia Insurance Company vs. Klamath Investments, LLC. PROOF OF SERVICE CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen of the United States and a resident of the Coimty of Sacramento I am, and at all times mentioned herein was, an active member of the State Bar of Califomia and not a party to the above-entitled cause. My business address is 1007 Seventh Street, Suite 500, Sacramento, Califomia 95814. On May 6, 2011, pursuant to CCP §1013A(2), I served the following: OPPOSITION TO SUPPLEMENTAL BRIEF RE MOTION FOR ATTORNEY FEES; DECLARATION OF STEPHANIE J. FINELLI BY FAX AND BY MAIL: by faxing and mailing a copy of said document to the following: Gregory Federico Archer Norris 301 University Ave , Suite 110 Sacramento, CA 95825 fax 916-646-5696 I declare under penalty of perjury under the laws of the State of Califomia the foregoing is tme and correct. DATED: May 6, 2011 Stephanie