Motion to Stay Proceedings in Diana Blum, MD vs Sutter Health et al| Trellis.Law

On March 04, 2015 a Motion,Ex Parte was filed involving a dispute between Diana P. Blum, and Palo Alto Foundation Medical Group, Inc., Palo Alto Medical Foundation, Sutter Health, for Wrongful Termination Unlimited(36) in the District Court of Santa Clara County.

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Theresa J. Barta, SBN 150995
BARTA LAW
4041 Macarthur Blvd., Ste. 280
Newport Beach, CA 92660-2537
Telephone: (949) 833-3383
Fl L ED
Facsimile: (949) 209-2530 ‘

Email: theresa@barta-law.com JUL 2 4 2018

Charles M. Louderback, SBN 88788
Stacey L. Pratt, SBN 124892 mmammqu“
LOUDERBACK LAW GROUP W “go,“

44 Montgomery Street, Suite 2970 R- AR
San Francisco, CA 94104
Telephone: (4 1 5) 61 5-0200
Facsimile: (415) 795-4775
E-Mail: clouderback@louderbackgroup.com
spratt@louderbackgroup.com

Attorneys for Plaintiff
10 DIANA P. BLUM, MD.
11 IN AND FOR THE STATE 0F CALIFORNIA
12
COUNTY OF SANTA CLARA UNLIMITED JURISDICTION
-

13
DIANA P. BLUM, M.D., Civil Case No. 2015-1-Cv—277582
14
Plaintiff,
PLAINTIFF’S Ex PARTE
15
v. APPLICATION FOR MOTION FOR
16
DISCRETIONARY STAY 0F
SUTTER HEALTH, a California corporation; EXECUTION 0F ORDER RE
l7 PALO ALTO FOUNDATION MEDICAL DEFENDANT’S MOTION FOR
GROUP, INC., a California corporation; PALO ?glﬁﬁgggaEgTégg ggsSTriIAllgl?
18 ALTO MEDICAL FOUNDATION, a OR TAX COSTS; MEMORANDUM OF
Califomia corporation; and DOES through 20, pOINTS AND AUTHORITIES 1N
1

19
SUPPORT; DECLARATION OF
DefendantS- STACEY L. PRATT; DECLARATION
20
OF CHARLES M. LOUDERBACK
21
Date: July 24, 201 8
Time: 8:15 am
22
Dept: 19
Judge: Hon. Peter H. Kirwan
23

24
Complaint ﬁled: March 4, 201 5
Trial Date: January 8,201 8
25

26
00022529 v7
27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-1-CV-277582
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
Please take NOTICE that, at 8: 1 5 am on July 24, 201 8, or as soon thereafter as the matter

may be heard, in Department 19 (Judge Peter H. Kirwan, presiding), at 161 North First Street, San

A Jose, California 951 13, Plaintiff Diana P. Blum M.D. (“Plaintiff") will and hereby does move,

under Code of Civil Procedure section 91 8 t0 stay enforcement of the order entered herein 0n July

16 201 8, regarding Defendant’s Motion for Attorney Fees and Costs and Plaintiff’s Motion to

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Strike or Tax Costs, and awarding $1,258,263 in fees and costs to Defendant Palo Alto Foundation

Medical Group.

By this application, Plaintiff moves for a discretionary stay of the Court’s order ex parte

10 pursuant to California Rule 0f Court 3.1204 and Code of Civil Procedure section 91 8 for a period

11 0f seventy (70) days from notice of entry of the Court’s order, on grounds that Plaintiff will suffer

12 irreparable injury if the discretionary stay is not granted, in that PAFMG will be entitled to enforce
13 this substantial award against Plaintiff before she is able to stay execution of the order by ﬁling a

14 notice of appeal, and securing the necessary undeﬁaking to stay enforcement of the judgment

15 pending appeal. Absent a discretionary stay during this period, Plaintiff will be irreparably

16 harmed when PAFMG could move immediately to execute on the order by placing liens on her

17 real property and other assets, thus compromising her professional activities as a physician.

18 Defendant PAFMG will suffer no prejudice if this stay is granted to the extent that the award

19 concerns litigation fees and costs already incurred by PAFMG, for which PAFMG sought

20 reimbursement from Plaintiff under Code 0f Civil Procedure Section 998.

21 This motion is supported by the Memorandum of Points and Authorities, and the

22 Declarations of Stacey L. Pratt and Charles M Louderback ﬁled herewith.
23 ///

24 ///

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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-l-CV-277582
DATE: July 23, 201 8 BARTA LAW
Theresa J. Barta
Attorneys for Plaintiff
DIANA P. BLUM, M.D.

LOUDERBACK LAW GROUP

v %\
Char'l'és M. Louderback
\OOONON

Stacey L. Pratt
Attorneys for Plaintiff
DIANA P. BLUM, M.D.

26
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2 -

27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-1-CV-277582
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF FACTS
PAFMG ﬁled its Motion for Attomey’s Fees and Costs Post CCP § 998 -- Offer t0

Compromise (“Motion”). (Louderback Decl., 1] 2.) Plaintiff ﬁled her opposition t0 that Motion,

and the Court heard argument 0n April 24, 201 8, and further argument was heard 0n May 18,

2018. (Id.) Plaintiff ﬁled a motion to tax PAFMG’S memorandum of costs, and argument was

heard on May 18, 2018. (1d.)

At the hearing on April 24, 201 8, Plaintiff’s counsel informed the Court that, pursuant to

Code of Civil Procedure section 91 8, in the event that the Court were to rule in PAFMG’s favor on

10 the pending motions, Plaintiff sought a discretionary stay of enforcement of the order until such

11 time as an appeal from the Court’s order could be perfected, and an undertaking to stay execution

12 0f the order pending appeal put in place. (Louderback Decl., 11 3.)

13 On July 16, 201 8, the Court entered its Order Re Defendant’s Motion for Attorney Fees

14 and Costs and Plaintiff‘s Motion t0 Strike or Tax Costs, awarding $1,268,263 in fees and costs to

15 PAFMG. (Louderback Decl., 1] 4, Exhibit A.)

16 By this ex parte motion, Plaintiff seeks a discretionary stay pursuant to Code 0f Civil

17 Procedure section 91 8. Notice of Plaintiff s intention to move for this discretionary stay 0n an ex

18 parte basis was provided t0 PAFMG’s counsel on July 23, 201 8 at approximately 9:25 am by

19 telephone and 9:34 am by conﬁrming email. (Louderback Decl., 11 5.) Notice 0f the time, date,

20 and place for the presentation of the application was provided pursuant t0 CRC 3.1203. Defendant

21 PAFMG’S counsel has not stated whether her client opposes this application, and has indicated she

22 must consult her client. (Id.)

23 ///

24 ///

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3
27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-1-CV-277582
II. LEGAL ARGUMENT
A. The Court Has Discretion Under Code 0f Civil Procedure Section 918 to Issue a
Stay 0f Enforcement of the Court’s Order Up to 10 Days After a Notice of
Appeal Could Be Filed

Code of Civil Procedure section 91 8 permits a trial court, upon entry ofjudgment 0r an

order, t0 grant a discretionary stay of enforcement for up to 10 days after a notice 0f appeal could

be ﬁled (70 days).

Code 0f Civil Procedure section 918 provides as follows:
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(a) Subject to subdivision (b), the trial court may stay the enforcement of any
judgment 0r order.

(b) If theenforcement of the judgment or order would be stayed on appeal only by
10
the giving of an undertaking, a trial court shall not have power, without the consent

11 of the adverse party, to stay the enforcement thereof pursuant t0 this section for a
period which extends for more than 10 days beyond the last date 0n which a notice
l2 of appeal could be ﬁled.

13 (c)This section applies whether or not an appeal will be taken from the judgment or
order and whether 0r not a notice of appeal has been ﬁled.
l4

15
The Court’s order granting PAFMG’S Motion, insofar as it directs the payment of money,

is an order that “would be stayed on appeal only by the giving of an undertaking.” (Code Civ.
16

17
Proc. § 918(b).) Pursuant to Code of Civil Procedure section 917(a), the Court’s order, which

18
includes costs awarded pursuant to Code of Civil Procedure section 998, is within the category of

order for which the perfecting of the appeal does not stay enforcement of the order in the trial court
19

unless an undertaking is given. Section 91 7(a) provides in relevant part:
20

21 (a) Unless an undertaking is given, the perfecting of an
appeal shall not stay enforcement of the judgment or order in the
22 couit if the judgment or order
trial is for any of the following:
(1) Money or the payment 0f money, whether consisting of a special
23
fund or not, and whether payable by the appellant or another party
24 to the action.

(2) Costsawarded pursuant to Section 998 which otherwise would
25 not have been awarded as costs pursuant to Section 1033.5. .. (Code Civ. Proc. .
§ 917(a).)

26
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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 20l5-l-CV-277582
B. Plaintiff Will Suffer Irreparable Harm If the Discretionary Stay is Not
Granted

The record of this case reﬂects that the litigation was contentious, and this leads Plaintiff to

believe that PAFMG may take steps t0 execute 0n the Order before she can get an undertaking in

place. As PAFMG declined t0 participate in a mediation until such time as the Court ruled on this

Motion, Plaintiff has n0 reason to believe that PAFMG will cooperate with respect t0 enforcement

of the Order by refraining t0 execute until such time that Plaintiff can get an undertaking in place,

and has the reasonable belief that PAFMG may take immediate steps to enforce the Court’s order,
KOOONON

causing irreparable harm to Plaintiff, her family, and the practice of her profession. (Louderback

Decl., 11 6.) On the other hand, if PAFMG now intends to participate in good faith in mediation of
10 this matter, the temporary discretionary stay will maintain the status quo while the parties explore

11 resolution of the matter during this interim period.

12 Plaintiff has commenced good faith efforts to secure an appeal bond by contacting bond

13 brokerage Commercial Surety regarding various bonding options. (Pratt Decl., 11 2.) The bonding

14 requirements will include collateralization and/or obtaining a line of credit. (Id.) Plaintiff will

15 suffer irreparable injury if the discretionary stay is not issued because she will not have sufﬁcient

16 time to meet the requirements necessary t0 collateralize the substantial appeal bond that will be

17 needed in this case, and t0 get the bond in place. In addition to securing the undertaking, Plaintiff

18 will take steps t0 perfect the appeal by ﬁling a timely notice of appeal from the order.

19 In addition, if the Court does not issue this discretionary stay, and PAFMG takes
20 immediate action to enforce the judgment in any manner, Plaintiff’s ability to obtain a bond will

21 be adversely impacted, as well as her right and ability to appeal the substantial award entered

22 against her. In the interests ofjustice, the Court should enter the temporary stay under Code of

23 Civil Procedure which provides the judgment debtor with some time to obtain a bond.

24 Furthermore, if the discretionary stay is not granted and PAFMG is permitted t0

25 immediately enforce the order while Plaintiff’s diligent efforts to obtain the bond continue, given

26
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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015—l-CV-277582
the magnitude of the Court’s order, such actions on the part 0f PAFMG could precipitate the ﬁling

of bankruptcy proceedings, causing irreparable harm to Plaintiff and her family’s ﬁnancial well-

being.

While the harm t0 Plaintiff in denying this request is irreparable, there is no prejudice to

PAFMG if the discretionary stay is granted. Plaintiff’s Motion and the Court’s order (Louderback

Decl., Exh. A) shift already incurred attorneys’ fees and costs to Plaintiff. As such, the irreparable

harm t0 Plaintiff outweighs any prejudice to PAFMG, and this remedy merely maintains the status
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quo until such time as Plaintiff can secure the undertaking that will create the permanent stay

afforded her during the course of her appeal. The interests ofjustice require that the Court

10 exercise its discretion to enter this discretionary stay.

11 C. The Court Should Also Extinguish Any Passive Liens

12 To the extent that PAFMG may have taken steps to create a lien under Code of Civil
13 Procedure section 697.340 (recoding of abstract ofjudgment) 0r any other passive lien, which is

14 not presently known by Plaintiff, by this motion, Plaintiff seeks to speciﬁcally extinguish any such

15 liens. Therefore, in addition to the discretionary stay, Plaintiff seeks an order extinguishing any

16 and all passive liens that may have been created by PAFMG as of the date of the order.

17 III. CONCLUSION

18 The Court’s order granting PAFMG’s motion presents devastating and immediate ﬁnancial

19 consequences to Plaintiff, and the discretionary stay sought by this application will provide her the

20 opportunity to perfect her appeal and get the appropriate undertaking in place, which in turn will

21 enable her to seek appellate review. Plaintiff respectfully requests that the Court exercise its

22 discretion and enter an order 1) staying enforcement of its order up to 10 days after a notice of

23 appeal from the order could be ﬁled (70 days); and 2) extinguishing any passive liens created by

24 PAFMG as of the date of the order.

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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. ZOIS-l-CV-277582
DATE: July 23, 201 8 BARTA LAW
Theresa J . Barta
Attorneys for Plaintiff
DIANA P. BLUM, M.D.

LOUDERBACK LAW GROUP

Clﬁrles M. Louderback
Stacey L. Pratt
OOOONQ

Attorneys for Plaintiff
DIANA P. BLUM, M.D.

26
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00022529 v7 7 —

27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES [N SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-1-CV-277582
DECLARATION OF STACEY L. PRATT
I, STACEY L. PRATT declare:
1. I am an attorney duly licensed to practice before all the Courts of this State, and am a

member of the Louderback Law Group, counsel for Plaintiff herein, along with Theresa J. Barta.

The matters stated herein are of my own personal knowledge and if called t0 testify I could and

would testify thereto.

2. On April 20, 201 8, I spoke with Arturo Ayala 0f bond brokerage Commercial Surety

regarding the requirements for obtaining an appeal bond. He explained the various bonding

requirements of the admitted sureties with whom they work t0 place appeal bonds 0n behalf of

10 litigants. These bonding requirements include obtaining a letter of credit, the deposit of cash or real

11 estate as collateral, and other means of collateralization that would be necessary to secure a bond.

12 He explained that the time required to get the bond in place would depend on the type of collateral

13 the litigant was able to post.

15 Executed this 23rd day of July, 2018 in San Francisco, California.

16 I declare under penalty of perjury under the laws of the State of California that the

17 foregoing is true and correct.

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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-l-CV-277582
DECLARATION OF CHARLES M. LOUDERBACK
I, CHARLES M. LOUDERBACK declare:

l. I am an attorney duly licensed t0 practice before all the Courts of this State, and am a

member of the Louderback Law Group, counsel for Plaintiff herein, along with Theresa J. Barta.

The matters stated herein are of my own personal knowledge and if called to testify I could and

would testify thereto.

2. PAFMG ﬁled its Motion for Attomey’s Fees and Costs Post CCP § 998 -- Offer t0

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Compromise. Plaintiff ﬁled her opposition to that Motion, and the Court heard argument on April

24, 2018 and 0n May l8, 2018. Plaintiff ﬁled a motion to tax PAFMG’S memorandum of costs.

10 3. At the hearing on April 24, 201 8, Plaintiff’s counsel advised the Court that, pursuant to

11 Code of Civil Procedure section 91 8, in the event the Court ruled in PAFMG’s favor, Plaintiff

12 requested a discretionary stay 0f enforcement of the order until such time as an appeal from the

13 Court’s order could be perfected, and an undertaking t0 stay execution of the order pending appeal

14 put in place. By this ex parte motion, Plaintiff seeks a discretionary stay pursuant to Code of Civil

15 Procedure section 918.

16 4. On July 16, 201 8, the Court entered its Order Re Defendant’s Motion for Attorney Fees

17 and Costs and Plaintiff’s Motion to Strike 0r Tax Costs, awarding $1,268,263 to PAFMG. A true

18 and correct copy of that Order is attached hereto as Exhibit A.

19 5. Notice of Plaintiff's intention to move for this discretionary stay on an ex parte basis

20 was provided t0 PAFMG’S counsel 0n July 23, 2018 at approximately 9:25 am by telephone, and

21 by conﬁrming email sent at 9:34 am. Notice of the time, date, and place for the presentation of the

22 application was provided pursuant to CRC 3. 1203. Defendant PAFMG’S counsel has not stated

23 whether her client opposes this application, and has indicated she must consult with her client.

24 6. As PAFMG declined to participate in a mediation until such time as the Court ruled 0n

25 the Motion, Plaintiff has no reason t0 belief that PAFMG will cooperate with respect to
26
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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case No. 2015-l-CV-277582
enforcement of the order by refraining to execute until such time that Plaintiff can get an

undertaking in place, and has the reasonable belief that PAFMG may take immediate steps to
enforce the Court’s order, causing irreparable harm to Plaintiff, her family, and the practice of her

profession. The record reﬂects that this litigation was contentious and this leads Plaintiff to

believe that PAFMG may take steps to execute before she can get an undertaking in place.

Executed this 23rd day 0f July, 201 8, in San Francisco, California.

I declare under penalty of perjury under the laws of the State of California that the
ONOOOVQ

11
(/ Charles
,

M. Louderback

26
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27 PLAINTIFF’S EX PARTE APPLICATION FORMOTION FOR DISCRETIONARY STAY OF EXECUTION
OF ORDER RE DEFENDANT’S MOTION FOR ATTORNEY FEES AND COSTS AND PLAINTIFF’S
28 MOTION TO STRIKE OR TAX COSTS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT;
DECLARATION OF STACEY L. PRATT; DECLARATION OF CHARLES M. LOUDERBACK
Case N0. 2015-l-CV-277582
EXHIBIT A
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JUL 1
E‘
2018 ELE
JUL 1 6 2018

Clerk 0f t e Court
Supen’orCuun CA tyolSanta Clara
BY DEPUTY

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SUPERIOR COURT OF CALIFORNIA */
\

COUNTY OF SANTA CLARA

DIANA P. BLUM, M.D., Case No. 115-CV-277582

Plaintiff, ORDER RE-DEFENDANT’S MOTION FOR
A1TORNEY FEES AND COSTS AND
vs. PLAINTIFF'S MOTION TO STRIKE OR TAX
COSTS
SUTTER HEALTH, a California corporation; PALO
ALTO FOUNDATION MEDICAL GROUP, INC, a
California Corporation; PALO ALTO MEDICAL
FOUNDATION, a California corporation; and
DOES 1 through 20,

Defendants.

This matter came for hearing in Department 16 on May 18, 2018. Plaintiff, Diana P.

Blum, M.D., is represented by attorneys, Theresa J. Barta, Barta Law, and Charles M.
Louderback and Stacey L. Pratt, Louderback Law Group. Defendants, Sutter Health and Palo

Alto Medical Foundation, are represented by attorneys, Lindbergh
Porter and Maiko Nakarani,

Little Mendelson, P.C. Defendant, Palo Alto Foundation Medical Group, Inc; (”PAFMG”), is

represented by attorneys, Marcie lsom Fitzsimmons and Hieu T. Williams, Gordon Rees Scully

Mansuhani, L.L.P.
Hearing is for Defendant PAFMG’s motion for attorneys’ fees and costs incurred

postoffer pursuant to Code of Civil Procedure section 998, and Plaintiff’s motion to strike or tax

b.)
Defendant PAFMG’s costs. Defendant PAFMG’s motion was initially heard on March 15, 2018

on issues of service of Defendant’s offer of compromise and compliance with Code of Civil

Procedure section 998. Pursuant to Findings and Order filed May 14, 2018, Defendant’s offer

was determined received by Plaintiff’s counsel, made in good faith, and in compliance with
\OOGVQUIA

Code of Civil Procedure section 998.

During the present hearing, Plaintiff made oral motion for reconsideration ofthe

Findings and Order.

After consideration of the pleadings submitted in support and in opposition, argument

of counsel and application of law, THE COURT iSSUES THE FOLLOWING ORDER:

Plaintiff’s motion for reconsideration ofthe Findings and Order filed May 14, 2018 is

DENIED.

Plaintiff did not obtain a more favorable judgment than the offer to compromise‘,

shifting to Plaintiff the obligation to pay Defendant’s costs from the time of the offer. Code of

Civil Procedure Section 998 subdivision (c) (1).

Because the action involved enforcement of a contract that included a provision for

recovery of the prevaiiing party’s attorney’s fees, Defendant’s postoffer costs include its

attorney’s fees. Civil Code section 1717; Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103; Biren v.

Equality Emergency Med. Group, Inc. (2002) 102 Cal.App.4th 125.

Determination of attorney fees is pursuant to the Lodestar methodology which requires

determination of the number of hours reasonably expended and the reasonable hourly rate

that is prevailing in the community for similar services. Keep Our Mountains Quiet v. County of

Santa Clara (2015) 236 Cal.App.4th 714; Rey v. Madera Unified Sch. Dist. (2012) 203 Cal.App.4th

1223; Building a Better Redondo, Inc. v. City of Redondo Beach (2012) 203 Cal.App.4th 852.

1
Defendant’s offer to compromise was $201,000, plus statutory costs, including Plaintiff’s reasonable attorney
fees incurred to the date of offer. The verdict of the jury awarded Plaintiff $28,415 in damages.
The Court has considered declarations of Defendant’s attorneys describing the

experience of counsel, hourly rates and itemization of services and time, and Plaintiff’s

Lo.)

opposition to the reasonableness of services and hours. Neither party requests a positive or

negative Lodestar enhancement.

The standard for reasonable hourly rate is the reasonable market value of the services.

The Court may consider the actual hourly billing rate and other factors in its discretion to
OOOONQUI-h

determine a hourly rate that is prevailing in Santa Clara County for similar services.

The services rendered by Defendant’s counsel at trial were professional and effective.

Services evidence superior preparation and organization. Oral and written argument was

reasoned and supported by on point authority. The Court considered the actual rates billed by

Defendant‘s counselz, whose offices are located in San Francisco, and the Court's experience

with reasonable rates in Santa Clara County for similar experience and skill. The Court finds

that the rates of Defendant’s attorneys are appreciably lower than reasonable hourly rates for

similar experience, skill and services in Santa Clara County.

The case was complex in legal and factual issues, and involved many percipient and

expert witnesses, and extensive documentary evidence. The litigation was active for three

years, and included motion for summary judgment, discovery matters and mediation before

trial. Trial was demanding and at times, contentious, requiring 17 days for completion.

The number of hours incurred and corresponding fees are extraordinary,

notwithstanding hourly rates well below those charged in Santa Clara County for comparable

experience and skill. The case was complex and vigorously pursued and defended. The amount

claimed as damages in the complaint was substantial, and the services, hours, and fees are not

disproportionate to potential liability. The favorable outcome to Defendant ofthe litigation

suggests the effectiveness of services of Defendant’s counsel.

Plaintiff objects to Defendant’s redacted description of services as obscuring accurate

assessment of reasonableness of services, that fees are disproportionate to the value of the

2
$275 per hour for partners/senior counsel (Ms. Fitzsimmons), $235-27S per hour for associate trial
counsel (Ms.
Williams), $235 per hour for other associates (Ms. Lawler and Ms. Eklof) and $115 per hour for paralegals.
case, that depositions were inefﬁcient, and that hours are inflated. Plaintiff also asserts that

[\J
fees for hours waiting for the jury’s verdict are not reasonable and necessary. Plaintiff further

LN contends that fees billed for travel is excessive because counsels’ reduced travel rate of $100

per hour is not reflected in all travel entries, and entries indicated as ”no charge" to Defendant

are included in the fee request.

The Court finds that attorney fees of Defendant in the net amount of $984,744 are

reasonable and necessary to the litigation, and are awarded to Defendant. The Court further

finds that it was reasonable and necessary under the circumstances of this case to have one

attorney from each side available to timely respond to issues that arose during jury

deliberations. The hours of Ms. Fitzsimmons in that regard are approved, and the hours of Ms.

Williams will be taxed? An additional reduction to fees for entries of ”no charge” to Defendant

is appropriate and those fees are taxed.“ The Court declines to adjust fees to reflect that all

travel is charged at $100 per hour to be reasonable. There can be many reasons for varying

billing rates for travel, and the instances where travel is billed at regular hourly rates is

reasonable.

Plaintiff’s contention that redaction of billing entries obscures assessment of the

services is unconvincing.5 For example, where Plaintiff is a recipient of the communications,

Plaintiff should be able to assess whether or not those entries are valid. Entries involving

defense internal communications or communications with defense witnesses or client

representatives do not require disclosure of substance or topics to assess reasonableness.

Similarly, reviewing or analyzing documents or preparing summaries of records do not require

disclosure of the particular documents in light of the large number of documents in the case.

Drafting of legal arguments for motions does not require disclosure of the legal
arguments.

3
The portion taxed is hours of Ms. Williams waiting for the verdict on 02.15.18 through 02.13.18 — 31.7 hours at
$275 per hour = $8,718.

‘
$3,498 per Ex. N of declaration of Ms. Barta in support of opposition to Defendant’s motion
for attorney fees and
costs.

5
Ex. O of declaration of Ms. Barta.
"
Larger time entries on September 21, 2016 for ”(A)ttend when viewed in context with other

l\)
entries at that time infer that the entries were for attending mediation or deposition. There are
b.)
various entries on the same date(s) of Ms. Williams for reviewing documents, depositions, and

h drafting summaries. Considering the detail in billing practice evident from overall entries, it is

U1
apparent that Ms. Williams is referring to different documents, depositions, or subjects, and

separated entries rather than consolidating all entries into one large time entry. Disclosure of

the specific documents, depositions or subjects is not necessary.
\DOO\)O\

As to time incurred and fees billed for preparation of an opening statement, the Court

would agree ih a non-extraordinary civil case that 38 hours incurred and $10,450 in fees

charged to prepare an opening statement appears unreasonable. However, the case here, in

contrast, was complex, the law and facts were fertile for confusion, and the stakes were high.

Clarification ofthe issues and facts important to the jury and what each party believed the

evidence would show were critical to the case, and the importance of an effective opening

statement was self-evident. Defendant’s opening statement was effective on those points, and

was delivered clearly and confidently. Under the circumstances observed by the Court, the

time incurred and fees charged for the opening statement were reasonable and necessary.

The time entries do not evidence or reflect inflation or padding of hours.

Plaintiff’s motion to strike or tax Defendant’s memorandum of costs.

The costs in Defendant’s memorandum of costs subject to Plaintiff’s motion to tax are

as follows:

Exgert witness fees.

Dr. Mark Lipian’s fees of $289,389 and billing rate of $725 per hour are extraordinary.

Dr. Lipian’s report was comprehensive, but exceeded the scope ofthe examination set by court

order, and that portion is included in the cost. Plaintiff abandoned her claim for mental distress

damages at trial, essentially eliminating the need for testimony of Dr. Lipian. It is probable that

Dr. Lipian's report and anticipated testimony impacted Plaintiff’s decision. Certainly, Dr.

Lipian’s qualiﬁcations are noteworthy, and an expert need not testify for fees to be recoverable.

However, unlike the performance of counsel at trial, the court did not have an opportunity to
observe Dr. Lipian as a witness to fully assess the reasonableness of the hourly rate and hours

Ix)
charged. $725 per hour is higher than rates charged by forensic mental health experts with

DJ
impeccable credentials in Santa Clara County. Additionally, the total number of hours charged

appear excessive relative to the scope of examination set by court order and there are

instances where the number of hours billed in a day is not plausible.

An award of expert witness fees to a defendant under Code of Civil Procedure section

998 subdivision (c) is discretionary and is not a matter of right. Rowland v. Pac. Specialty Ins.

Co. (2013) 220 Cal.App.4"‘ 280, 289. Fees may be awarded

Case Info

Judge

Drew C. Takaichi Track Judge’s New Case

Case No.

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Document Filed Date

July 24, 2018

Case Filing Date

March 04, 2015

County

Parties

Christine A. Lawler Attorney For The Defendant
Diana P. Blum Plaintiff
Lindbergh Porter Attorney For The Defendant
Palo Alto Foundation Medical Group, Inc. Defendant
Palo Alto Medical Foundation Defendant
Sutter Health Defendant
Maiko Nakarai-Kanivas Attorneys for Defendants
Theresa Barta-Vavrock Attorney
James Barber Attorney
Jeffrey Wertheimer Attorney
Charles Louderback Attorneys for Plaintiffs
Hieu Tran Attorney
Stacey Pratt Attorneys for Plaintiffs
Marcie Fitzsimmons Attorneys for Defendants
Sean Piers Attorneys for Defendants
Hieu Williams Attorney
Nicole Williams Attorneys for Defendants
Theresa Barta Attorney

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Motion,Ex Parte: Diana Blum, MD vs Sutter Health et al

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