Motion-Secondary: Diana Blum, MD vs Sutter Health et al

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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
Facsimile: (949) 209-2530
Email: theresa@barta-law.com

Charles M. Louderback, SBN 88788

Stacey L. Pratt, SBN 124892

LOUDERBACK LAW GROUP

44 Montgomery Street, Suite 2970

San Francisco, CA 94104

Telephone: (415) 615-0200

Facsimile: (415) 795-4775

E-Mail: — clouderback@louderbackgroup.com
spratt@louderbackgroup.com

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

IN AND FOR THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA - UNLIMITED JURISDICTION

DIANA P. BLUM, M.D., Civil Case No. 2015-1-CV-277582

Plaintiff,
PLAINTIFF’S MEMORANDUM OF

v. POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT PALO

SUTTER HEALTH, a California corporation; | ALTO FOUNDATION MEDICAL

PALO ALTO FOUNDATION MEDICAL GROUP, INC.’S MOTION FOR
iforni Sas ATTORNEYS’ FEES AND COSTS

GROUP, INC., a California corporation; PALO POST CCP § 998 — OFFER TO
ALTO MEDICAL FOUNDATION, a COMPROMISE
California corporation; and DOES 1 through 20,

Date: April 24, 2018

Defendants. Time: 1:30 p.m.
Dept: 16
Judge: Hon. Drew C. Takaichi

Complaint filed: March 4, 2015
Trial Date: January 8, 2018

00022396 v9

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP S008 — ARFRR TA COMPROMISE: aca Na 2N15_1-CV_977627An PF w

Table of Contents

L INTRODUCTION.
Il. FACTUAL BACKGROUND AND PROCEDURAL HISTORY.....cssssssssessseseseseseeseeeneennes 1
TI. = LEGAL ARGUMENT .......ccssessseesssssssesssesseessessecsseensessecnneesecauceasecansanscasecnesnuescenseanecsnceneenses 2

A. Defendant’s Motion for Attorney’s Fees Is Premised on a CCP § 998 Offer that
Plaintiff Never Received

B. The Policy Underlying CCP § 998 Would Not Be Served by Enforcing
Defendant’s Purported CCP § 998 Offer Against Plaintiff... eeeseseeesesneeeeerenes 4

C. The Context Surrounding Defendant’s CCP § 998 Offer Suggests that it was Not
Made in’ Good Faithsiac.ccciccessscnssssrsarstssacseatenssuvssvesssvveceaventvesinacenustbenwesstventnaneusesnaeny 5

D. Plaintiff Prevailed at Trial on Her Breach of Contract Claim

E. Defendant Has Not Met its Burden to Establish that its Claimed Fees were
Allowable, Reasonably Necessary to the Conduct of the Litigation, and
Reasonable in AMOUNE wsceccccsiaecovsccescssveaccsseassetsrssbeivetssteerucatanverdnsestenrinnastnsteesstecnmceniveuers 6

F. Defendant Has Failed to Establish Its Hourly Rates By Presenting Conflicting
Representations In Declarations Submitted to the Court .

G. Defendant Produced Heavily Redacted Billing Entries Obscuring the Ability to
Assess the Reasonableness of the Claimed Tasks...........:ssesssssssesessesseesseseeseerssesseneesnencees 7

H. Defendant Overstates the Magnitude of the Action to Justify its Unreasonable
Attorneys? Fees... cccseseeseseesssesseessseesesesseseseensaeseesacsesecseseenssesnsaeseensseensasensnsasatensneaneesaneren 8

I. The Attorneys’ Fees Sought in Relation To Plaintiff's Third and Fourth
Depositions Are Unreasonable ..ccvscssccccssncisseussernsscsssevrcennssestiossnssnasiuastectsivecssteansnisettaee 9

J. Defendant is Seeking Disproportionate and Unreasonable Time for Identical
Tasks Suggesting that the Time Entries Have Been Inflated ............c:cscscseseeseeseeseseeee 9

K. Defendant Should Not Be Awarded Fees for Idle Time Waiting for the Jury

Verdict
L. Defendant Seeks Recovery of Unreasonable Travel Time..........:sessssesessesesessestesseeneesees 10
M. Defendant’s Expert Fees Are Unrecoverable and Unreasonable .........cssssssseseeneeeteenens 10

N. Defendant’s Motion Exceeds the Applicable Page Limit and is Procedurally
Improper.

TW, (CONCLUSION, cccossverecesnssssvenscnenconsexeacsasnsnusseenioseisesesnsannticanesicesannentasieaneaesonniionnnssidncaaneae 15

00022396 v9 -i-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 —- OFFER TO COMPROMISE; Case No. 2015-1-CV-277582Bank of San Pedro v. Superior Court
(1992) 3 Cal. 4th 797.........sisasianwnnnaenmaemmmOmmNe Nera seater ames aE 4

Barella v. Exchange Bank
(2000) 84 Cal.App.4th 793

Brown v. Nolan
979) 98 Gal App. 3.445. ccsssssssveasnzesseornmsezanannesansaasnsoynsornnnsnscecnsssnesnessnnsinoascenstacemnacesnorcortes 5

Concepcion v. Amscan Holdings, Inc.
(2014) 223 Cal.App.4th 1309.

Craig v. Brown & Root, Inc.
(2000) 84 Cal. App.4th 416....ccccscsssssssesssssssessessssssseecsusssssseecssunsssssssseessuusasscessseessuasseeeeeee 3

Garcia v. Hyster Co.
(1994) 28 Cal. App.4th 724 ....sccsscssssssssssssssessssssssssssessessssssecessunssssssssesesunsssssessseessassseeeeee 5

Harvard Investment Co. v. Gap Stores, Inc.
(1984) 156 Cal. App.3d 704 ....-scscsssssssssssssssesssssssssesessessssseecesuussssnsnsseessssssssessseessnssseeeeeee 4

Hutchins v. Waters
(1975) 51 Cal. App.3d 69 ..ccsccsssssssssssssesssssseesssssssssessusssnsssesesuussnssssssesssuansnsseeseeesuassseeeeeee 5

Ketchum v. Moses
(2001) 24 Cal. 4th 1122...

Levy v. Toyota Motor Sales, U.S.A., Inc.
(1992) 4 Cal App.4th 807.0... csesecsessessessessessessesesseesesnssnsssseesessssnsetesecseessnseceeseeneeeeseeseee 6

Martinez v. Brownco Const. Co., Inc.
(2013) 56 Cal.4th 1014... cccsscscscsssssssssssssssssscssssssssessssessnnsesessuuussssnsssesseussnnnseseesesuanassenesee 4

Mesa Forest Products, Inc. v. St. Paul Mercury Ins. Co.
(1999) 73 GalApp.4t 324 vcvvcssssiocssnsssssuasssnscatsoseenusasstanssseteccensossoveeeenashassustssnecerssustansasetoe 4

Serrano v. Unruh
(L982) 32 Chal, 5 BOD cseonnnscccnrsenneenvennanenneenansecn iad S53 snot as ésy ones pores eresetnoverrezntaevenencnes 9

Slater v. Kehoe
(1974) 38 Cal.App.3d 819...

T. M. Cobb Co. v. Superior Court

(1984) 36 Cal.3d 273 ....escssesssessessseesssesstssstsssessscsssssesssessusssessnessecsscesessseesessneesseesccensesneesneessess 4
Thon v. Thompson

(1994) 29 Cal. App.4! 1546...cccsssssssssscssssssssesssusssnssesessssssnsscsessunsssssessesessnsssesseeecusssseesee ll
Wear v. Calderon

(1981) 121 Cal. App.3d 818.....sccsceseessesssecssessnsesecssessecsnessnessecsueesesseessecsessieenecaeesnecaneesnees 5
00022396 v9 -ii-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 - OFFER TO COMPROMISE; Case No. 2015-1-CV-277582w wo

xn a

Statutes

Code: Civ. Proc::§:998 scsssusnnnnemanamnanranarmaa nT 1,5

Evid. Code § 604 .......ccsesssesssesseesssesseesesseessssessessesseesseesseesiessiessessessnesseessesamesniesnessncsseesenesaesaeenessaes 2

Biydtl Codie: § 64 uv sccsossescasscsusssscsnesnsssvosvtcennnssuseovesussesrey reps veshan even cuvaneasecenn rare nuactnereeseemenmenennanee 2
Rules

Cal. R. Ct. 3.1113 oeseeeceecsseesseescsssessesssessecsseesstessesseesseesuessessseesucsasecusesseeaeesesarsesesnecsecasseeeneenneeenens 15

Cal. R. Ct. 3.1300.
CaleRs C631 100 cnc enssnenricammnnanaveianmnennmn NETO URR TENNIS 11

00022396 v9 - iii-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 - OFFER TO COMPROMISE; Case No. 2015-1-CV-277582IL INTRODUCTION

Plaintiff Diana Blum, M.D. (“Plaintiff”) opposes Defendant Palo Alto Foundation Medical
Group Inc.’s (“Defendant” or “PAFMG”) Motion for Attorneys’ Fees and Costs Post CCP § 998 —
Offer to Compromise (the “Motion”). Defendant seeks unreasonable attorneys’ fees totaling
$1,014,795, and $367,698.75 in excessive expert witness fees. Defendant’s purported basis for
recovering its attorneys’ fees and expert witness costs is an alleged offer to compromise that
Defendant claims was served pursuant to Code of Civil Procedure Section 998 (“CCP § 998
Offer”). As set forth in the supporting declarations, there is substantial evidence that the CCP §
998 Offer was never received by Plaintiff. Plaintiff first learned of the CCP § 998 Offer after its
expiration, at which time she requested that it be re-served or extended. Defendant refused to do
so, which suggests that the offer was not a good faith offer and was never intended to encourage
settlement. Given the substantial evidence that Plaintiff never received the CCP § 998 Offer, there
is no basis for Defendant to shift its fees and costs to Plaintiff.

As to the claimed fees, Defendant has failed to meet its burden to establish they were
reasonably necessary to the conduct of the litigation and reasonable in amount. Defendant fails to
establish its own hourly rates by presenting conflicting information. The billing entries provided
include sweeping redactions that make it impossible to assess the reasonableness of many entries,
which are littered with unreasonable tasks and padded time entries. Defendant’s claimed expert
witness costs — which Plaintiff has previously attacked in her motion to tax costs - are similarly
unreasonable, with the bulk ($289,389.81) devoted to a single expert who billed prolifically,
including nineteen hours in a day. The Motion should be denied because Defendant lacks any
basis to recover its unreasonable and excessive attorneys’ fees and expert costs.

Il. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Plaintiff filed her First Amended Complaint on August 7, 2015. (See Declaration of
Theresa J. Barta in Support of Plaintiff's Opposition to Defendant’s Motion for Attorneys’ Fees
and Costs Post CCP § 998 — Offer to Compromise (“Barta Decl.”), 4 2.) On May 30, 2017,
Defendant served its Expert Witness disclosure identifying the following expert witnesses: Mark

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PLAINTIFFS MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP 8998 — OFFFR TO COMPROMISE: Case No 2015-1-CV-977527w

Lipian, Charles Mahla, Bryan Bohman and Carol Hyland, (Barta Decl., 31, Exh. I.) On June
19, 2017, Defendant served its Disclosure of Information Concerning Supplemental Expert
Witnesses which identified retained expert Charles Bond. (/d., 4 33, Exh. K.)

The trial of this action commenced on January 8, 2018. (Barta Decl., | 36.) During trial,
Defendant’s retained expert Charles Mahla provided testimony about Plaintiff’s mitigation efforts.
Ud., 4 20.) Defendant’s retained experts Lipian, Hyland and Bond did not testify at trial. (/d., J
37.) On March 15, 2018, Defendant served a Memorandum of Costs (Summary) with Worksheet
and Attachment (the “Memorandum”) seeking costs, including the same expert costs sought in this
Motion. (/d., | 39.) On April 3, 2018, Plaintiff filed its Notice of Motion and Motion to Tax and
Strike Defendant’s Costs, which is set to be heard on May 18, 2018. (/d.) On March 20, 2018,

Plaintiff filed a Motion for New Trial, that is set for hearing on April 18, 2018. (/d., 4 40.)

Ii. LEGAL ARGUMENT

A. Defendant’s Motion for Attorney’s Fees Is Premised on a CCP § 998 Offer that
Plaintiff Never Received

Defendant’s purported legal basis for seeking recovery of its attorneys’ fees and expert
witness costs is a CCP § 998 Offer, allegedly served by Defendant by mail only on August 24,
2015, which Plaintiff never received before the offer’s purported expiration. As set forth below,
the evidence overwhelmingly demonstrates that Plaintiff did not receive Defendant’s CCP § 998
Offer in a timely fashion, and accordingly, there is no legal basis for Defendant to claim its
attorneys’ fees.

There is an evidentiary presumption that “[a] letter correctly addressed and properly mailed

is presumed to have been received in the ordinary course of mail.” (Evid. Code § 641.)

The effect of a presumption affecting the burden of producing evidence is to
require the trier of fact to assume the existence of the presumed fact unless and
until evidence is introduced which would support a finding of its nonexistence, in
which case the trier of fact shall determine the existence or nonexistence of the
presumed fact from the evidence and without regard to the presumption. (Evid.
Code, § 604) (emphasis added.)

'[I]f a party proves that a letter was mailed, the trier of fact is required to find that
the letter was received in the absence of any believable contrary evidence.
However, if the adverse party denies receipt, the presumption is gone from the
case. The trier of fact must then weigh the denial of receipt against the inference of

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP 8008 — OFFER TA COMPROMISP: Cace Na 2018-1-CV-777829cD Mm IND

receipt arising from proof of mailing and decide whether or not the letter was
received.’

(Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421-422 citing Slater v. Kehoe
(1974) 38 Cal.App.3d 819, 832, fin. 12.)

Plaintiffs counsel denies she received Defendant’s CCP § 998 Offer and presents
herewith compelling contrary evidence supporting this denial. (Barta Decl., ff] 3-19.) (See
also Declaration of Vanessa Langsfeld in support of Plaintiff's Opposition to Defendant’s
Motion for Attorneys’ Fees and Costs Post CCP § 998 — Offer to Compromise (“Langsfeld
Decl.”), {{ 2-7.) The Court must thus weigh the inference arising from any proof that the
CCP § 998 Offer was served against the overwhelming evidence demonstrating that
Plaintiff never received it.

Plaintiff's counsel first learned about the CCP § 998 Offer after receiving an email from
Defendant’s counsel on October 6, 2015, which referenced the offer, included a copy, showing a
proof of service via mail only. (Barta Decl., 3, Exh. A.) Subsequently, Plaintiff's counsel
conducted a search of her files but was unable to locate a copy of the CCP § 998 Offer. (Barta
Decl., { 6; Langsfeld Decl., 6.) In response, Plaintiff's counsel sent an email to Defendant’s
counsel on October 6, 2015, stating, “I’m actually shocked to see the 998 Offer -we NEVER
received that.” (Barta Decl., 7, Exh. A.)

The established policies and practices of Plaintiffs counsel would have confirmed receipt
of the CCP § 998 offer. (Barta Decl., {] 4-5; Langsfeld Decl., ff 3-6.) Importantly, the response
deadline would have also been calendared if the CCP § 998 Offer had been received. (Barta Decl.,
4/5; Langsfeld Decl., 4] 3-5.) There is also no evidence that Plaintiffs counsel and Defendant’s
counsel discussed the CCP § 998 Offer at any time prior to October 6, 2015, when Plaintiff’s
counsel was first alerted to its existence. (Barta Decl., J 3-7.) In short, there is overwhelming
evidence that Plaintiff never actually received the CCP § 998 Offer, which rebuts any presumption
that the CCP § 998 Offer was received. Since Plaintiff never received the CCP § 998 Offer, there
is no legal basis for Defendant to recover its attorneys’ fees and expert witness fees. In the face of
this evidence that the Offer was never received before its expiration, the Court should reject

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT.
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP 8998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582Com nr aD

Defendant’s efforts to shift its unreasonable attorneys’ fees and expert costs.

B. The Policy Underlying CCP § 998 Would Not Be Served by Enforcing
Defendant’s Purported CCP § 998 Offer Against Plaintiff

Enforcing the CCP § 998 Offer against Plaintiff would conflict with the policy underlying
Code of Civil Procedure Section 998 because Plaintiff never had an opportunity to accept, or even
consider, the purported offer. “The policy behind section 998 is ‘to encourage the settlement of
lawsuits prior to trial.”” (Martinez v. Brownco Const. Co., Inc. (2013) 56 Cal.4th 1014, 1019.)
“To effectuate this policy, section 998 provides “a strong financial disincentive to a party—
whether it be a plaintiff or a defendant—who fails to achieve a better result than that party could
have achieved by accepting his or her opponent's settlement offer.” (Jd. citing Bank of San Pedro
v. Superior Court (1992) 3 Cal. 4th 797, 804.) “Simply put, section 998 “penalizes a plaintiff who
fails to accept what, in retrospect, is seen to have been a reasonable offer.” (Mesa Forest Products,
Inc. v. St. Paul Mercury Ins. Co. (1999) 73 Cal.App.4th 324, 330 citing Harvard Investment Co. v.
Gap Stores, Inc. (1984) 156 Cal.App.3d 704, 713.) “Of course, general contract law principles
should apply to section 998 offers and acceptances only where such principles neither conflict
with the statute nor defeat its purpose.” (7. M. Cobb Co. v. Superior Court (1984) 36 Cal.3d 273,
280.)

The policy behind Section 998 would not be furthered by enforcing this CCP § 998 Offer.
Plaintiff first learned about the CCP § 998 on October 6, 2015, after the Offer had expired. (Barta
Decl., 3,6, Exh. A.) Defendant misleadingly implies receipt stating, “Ms. Barta acted as though
she had not received the 998 Offer when I raised the subject with her.” (See Declaration of Marcie
Fitzsimmons in support of Defendant’s Motion for Attorneys’ Fees and Costs Post § 998-Offer to
Compromise (“Fitzsimmons Decl.”), ¥ 6.) Plaintiff's counsel did not “act” as though she did not
receive the CCP § 998 Offer — she never received it and informed Defendant as soon as she
learned that Defendant claimed service. (Barta Decl., ff 3-7.) The purpose of Section 998 will be
defeated if Plaintiff is punished for not accepting a CCP § 998 Offer she had no opportunity to

consider or accept. Applying contract law principles to these facts and finding rejection of an

00022396 v9 -4-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP 8998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582offer that was never received would squarely conflict with the purpose of Code of Civil Procedure
Section 998.

C. The Context Surrounding Defendant’s CCP § 998 Offer Suggests that it was
Not Made in Good Faith

Defendant’s refusal to re-serve the CCP § 998 Offer or extend its acceptance period after
being notified that it was never received suggests that the offer was not made in good faith. “We
believe that in order to accomplish the legislative purpose of encouraging settlement of litigation
without trial [citation omitted], a good faith requirement must be read into section 998.” (Wear v.
Calderon (1981) 121 Cal.App.3d 818, 821 citing Brown v. Nolan (1979) 98 Cal.App.3d 445, 449.)
“Section 998 must be strictly construed in favor of the party sought to be subjected to its
operation.” (Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 732-733.)

After Plaintiff's counsel received notice of the purported CCP § 998 Offer, she requested
re-service, or an extension of time to respond. (Barta Decl., 8.) In response, Defendant’s
counsel refused both requests and provided no reasonable explanation for their refusal. (Jd., J 9-
14.) Ifthe CCP § 998 Offer was made in good faith and, in fact, intended to encourage settlement,
Defendant would have re-served it.

Instead, Defendants extended a settlement offer of $210,000, an amount seemingly
intended to mirror the value of the CCP § 998 Offer, which Defendant indicated it “valued that
offer at the time at $210,000.” (Barta Decl., { 14, Exh. C.) The settlement offer contained new
terms of confidentiality and a no-rehire provision. (/d.) These non-monetary terms were not
included in Defendant’s CCP § 998 Offer. (Fitzsimmons Decl., 13, Exh. B.) The addition of
these non-monetary terms would have invalidated the CCP § 998 Offer had they been included, as
an offer to compromise under Section 998, “itself must, nonetheless, be unconditional.” (Barella
vy. Exchange Bank (2000) 84 Cal.App.4th 793, 799 citing Hutchins v. Waters (1975) 51
Cal.App.3d 69, 73.) In Barella, the inclusion of a confidentiality provision was found to have
rendered the CCP § 998 offer conditional because “the value to a particular plaintiff of public

vindication (or, conversely, the negative value of confidentiality) is so highly subjective and

00022396 v9 -5-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP 8998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277587elusive that no court can determine its monetary worth.” (Barella, supra, 84 Cal.App.4th at 801.)
Defendant’s insistence on confidentiality being a term of settlement suggests that great value was
placed on this term. By extending this offer, but unreasonably refusing to extend or re-serve the
CCP § 998 Offer, Defendant demonstrated that the CCP § 998 Offer was not made in good faith.
D. Plaintiff Prevailed at Trial on Her Breach of Contract Claim
Plaintiff was awarded $28,415.00 in damages on her breach of contract claim against
Defendant. (Fitzsimmons Decl., Exh. H.) Given this monetary recovery, Plaintiff prevailed at
trial. Plaintiff has also filed a Motion for New Trial on the grounds, amongst others, that it was

error for the Court to grant non-suit as to Plaintiff's causes of action for violation of California

Business and Professions Code section 2056 and wrongful (constructive) termination in violation
of public policy. (Barta Decl., 440.) This decision to take these causes of action away from the

jury limited the damages available to Plaintiff.

E. Defendant Has Not Met its Burden to Establish that its Claimed Fees were
Allowable, Reasonably Necessary to the Conduct of the Litigation, and
Reasonable in Amount

Defendant has “the burden of showing that the fees incurred were “allowable,” were
“reasonably necessary to the conduct of the litigation,” and were “reasonable in amount.” (Levy
v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4th 807, 816.) “The person seeking such
an award ‘is not necessarily entitled to compensation for the value of attorney services according
to [his] own notion or to the full extent claimed by [him].’” (Levy v. Toyota Motor Sales, U.S.A.,
Ine. (1992) 4 Cal.App.4th 807, 815-816.) “To the extent a trial court is concerned that a
particular award is excessive, it has broad discretion to adjust the fee downward or deny an

unreasonable fee altogether.” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1138.)

F. Defendant Has Failed to Establish Its Hourly Rates By Presenting Conflicting
Representations In Declarations Submitted to the Court

Defendant’s claimed hourly rates raise concerns in light of contradictory statements made
by Defendant’s counsel. The Fitzsimmons Declaration contains the following representations

about Defendant’s counsel’s rates: “[m]y firm charged the Physician Group and was paid $275.00

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582An fF ww

per hour for Partner/Senior Counsel work, $235.00 per hour for Associate work, and $115 per
hour for paralegal work on this case.” (Fitzsimmons Decl., 412.) “In October 2016, Ms. Williams
was promoted to Senior Counsel, (changing her billing rate from $235.00 per hour to $275.00 per
hour).” (/d., 4 19.) The summary of hours attributed to Ms. Williams includes hourly rates of
$235 and $275. (/d., 36.) Additionally, the Declaration of Hieu Williams i states, “[i]n October
2016, my billing rate changed from $235 per hour to $275 per hour.” (Williams Decl., § 4.)

This hourly rate information is directly contradicted by information submitted by
Defendant’s counsel Ms. Williams on December 2, 2016, in support of Defendant’s Motion to
Compel Further Response to Form Interrogatories -General, Set Two, wherein she declared that
her hourly rate was $225. (Barta Decl., 435, Exh. L.) This declaration was submitted months
after October 2016 when Ms. William’s hourly rate was purportedly increased. (Id.)
(Fitzsimmons Decl., J 12.) Since there is conflicting information as to counsel’s hourly rates, at
least one of these representations (made under penalty of perjury) is inaccurate. These

inaccuracies cast doubt on the veracity of the rates claimed by Defendant’s counsel and reflect

Defendant’s failure to establish its hourly rates with respect to Ms. Williams.

G. Defendant Produced Heavily Redacted Billing Entries Obscuring the Ability to
Assess the Reasonableness of the Claimed Tasks

Defendant has produced heavily redacted billing entries that obscure the nature of the tasks
and are insufficient to show the claimed attorneys’ fees were reasonable and necessary. An
attorneys’ fee claimant is entitled to redact privileged information from billing records.
(Concepcion v. Amscan Holdings, Inc. (2014) 223 Cal.App.4th 1309, 1326-1327.) Defendant has
gone well beyond the redaction of privileged information and redacted large swaths of the records
that bear no relationship to privileged information. (Fitzsimmons Decl., { 16, Exh. K.) (Barta

Decl., 4 43, Exh. O.) For example, Defendant even goes so far as to redact the subject of

communications with Plaintiffs counsel. (/d., | 43, Exh. O, pp. 5, 6, 15, 36, 47, 51, 86, 89, 91,
133.) These heavy redactions preclude the Court and Plaintiff from assessing whether the claimed

tasks were reasonably necessary or reasonable in amount. (/d., ] 43, Exh. O.) For example, a 3.8

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 —- OFFER TO COMPROMISE: Case No. 2015-1-CV-277582YD uw Ff w

hour entry for Ms. Williams and a 9 hour entry for Ms. Fitzsimmons on September 21, 2016 are
accompanied by the cryptic description of “Attend.” (Fitzsimmons Decl., Exh. K, p. 59; Barta
Decl., 43, Exh. O, pp. 37-38.) The redactions also prevent Plaintiff and the Court from
analyzing whether Defendant is seeking fees for duplicate entries or cumulative tasks. Defendant
provided a series of twenty identical entries totaling 14.7 hours and $3,454.50 in fees “[d]raft pre-
mediation analysis report section re: legal analysis of...” (Barta Decl., { 43, Exh. O.) Similarly,
on November 27, 2016 there are four identical entries: “[d]raft summary of...” (/d.) In these
entries and many others, Plaintiff is unable assess whether the claimed tasks were reasonable or
duplicative. (Id.)

Where there is an unredacted description, many of Defendant’s billing entries reflect
unreasonable entries. For example, Defendant unreasonably seeks 1.4 hours of attorney time spent
by Ms. Williams on drafting a notice of motion for summary judgment. (Fitzsimmons Decl., P
Exh. K, p. 69.) Defendant also seeks time relating to communications with a reporter on February
22 and 26, 2018 which should not be awarded because it was not reasonably necessary to the
conduct of the litigation. (/d. at 190.) Defendant seeks an unreasonable 38 hours and $10,450 in

fees relating to the opening statement. (Barta Decl., { 45, Exh. Q.)

H. Defendant Overstates the Magnitude of the Action to Justify its Unreasonable
Attorneys’ Fees

In attempt to justify its unreasonable attorneys’ fees, Defendant overstates the magnitude
of this action. For example, Defendant overstates Plaintiff's damages, by referencing “Plaintiff's
claimed damages of $10,000,000.” (Motion, p. 19, Ins. 10.) On July 28, 2015, before Defendant’s
CCP § 998 Offer was purportedly served, Plaintiff had produced discovery responses identifying
her total income, benefit and earning capacity losses to be “approximately $350,000.00 per year,
less her medical practice earnings from November 1, 2013 to present.” (Barta Decl., § 35, Exh.
L.) As such, it is insincere for Defendant to refer to claimed damages of $10,000,000 to justify its

unreasonable fees.

00022396 v9 -8-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582COD mem INDY

I. The Attorneys’ Fees Sought in Relation To Plaintiff’s Third and Fourth
Depositions Are Unreasonable

Defendant repeatedly refers to the number of depositions taken in this action to justify the
unreasonable fees. (Motion, p. 8, In. 3.) Defendant should not be rewarded unreasonable fees that
resulted from its own inefficient deposition practices. For example, Defendant unnecessarily
deposed Plaintiff four times in this action. (Barta Decl., J .) While defending Plaintiff's
deposition, Plaintiff's counsel repeatedly objected on the grounds that questions had been asked
and answered. (Barta Decl., {34 .) Defendant seeks 16.9 hours and $4,677.50 in fees for
Plaintiff's third and fourth depositions. (Fitzsimmons Decl., J 16, Exh. K, pp 24,56.) The
excessive length of Plaintiffs deposition and the associated fees claimed could have been reduced
if Defendant’s counsel had refrained from repeatedly asking the same questions. (Barta Decl.,4]

34.) Defendant created the unnecessary work that it now seeks to recover.

J. Defendant is Seeking Disproportionate and Unreasonable Time for Identical
Tasks Suggesting that the Time Entries Have Been Inflated

Defendant has claimed disproportionate amounts of hours for identical tasks. “In
referring to “reasonable” compensation, we indicated that trial courts must carefully review
attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative
efforts is not subject to compensation.” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1132.)
Indeed, “[a] fee request that appears unreasonably inflated is a special circumstance permitting
the trial court to reduce the award or deny one altogether.” (Concepcion v. Amscan Holdings,

Inc. (2014) 223 Cal. App. 4th 1309, 1320 citing Serrano v. Unruh (1982) 32 Cal. 3d 621, 635.)

The records provided by Defendant to support its claimed attorneys’ fees suggest padding.
For example, Defendant’s counsel Ms. Williams and Ms. Fitzsimmons both have time entries for
attending the trial on trial on the following days January 10 and 11, 2018, but Ms. Williams
attributes 5.5 and 10 hours, respectively, for this task, while Ms. Fitzsimons billed for trial
attendance for 4.5 and 9 hours, respectively. (Fitzsimmons Decl., Exh. K., p. 179-180.) Similarly,
Ms. Williams billed 8 hours for “waiting for the verdict” on February 7, 2018, while Ms.
Fitzsimmons billed 6.7 hours. (Fitzsimmons Decl., Exh. K, p. 190) (Barta Decl., § 46, Exh. R.)

00022396 v9 -9-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 —- OFFER TO COMPROMISE; Case No. 2015-1-CV-277582There is no reason for these discrepancies since both attorneys attended the same trial and have /
billed their travel time separately. These are a few examples of a pattern of imbalance between
entries which should be identical. (Fitzsimmons Decl., Exh. K, pp. 182-189.) (Barta Decl., | 47,
Exh. S.)

K. Defendant Should Not Be Awarded Fees for Idle Time Waiting for the Jury
Verdict

Defendant seeks a total of $18,892.50 in fees relating to 68.70 hours spent waiting for the
verdict. (Barta Decl., { 46, Exh. R; Fitzsimmons Decl., Exh. K, p. 189-190.) While the jury was
deliberating, Plaintiff's counsel used the period of inactivity to attend to other matters. (Barta
Decl., 38.) It is anticipated that Defendant’s counsel similarly used this idle time for other
matters since there was nothing to be done on this case during this period. Defendant will obtain a
windfall if these unreasonable fees representing passive waiting time are shifted.

L. Defendant Seeks Recovery of Unreasonable Travel Time

The Motion seeks unreasonable and excessive total of $32,797 in fees for travel time.
(Barta Decl., 441, Exh. M.) Defendant’s billing entries note a reduced travel rate $100 per hour.
(Fitzsimmons Decl., Exh. K; Barta Decl., { 41, Exh. M.) However, Defendant has sought
substantially higher travel fees in the Motion because the reduced travel rate is not applied in
Defendant’s timekeeper subtotals. (Fitzsimmons Decl., { 36; Barta Decl., 41, Exh. M.) The
Court should not allow Defendant to claim its full hourly rate for reduced rate travel and shift
these unreasonable fees to Plaintiff. Defendant’s entries also include numerous travel related
accompanied by the annotation “(NO CHARGE)” (Barta Decl., J 42, Exh. N; Fitzsimmons
Decl., Exh. K.) These entries, totaling 17.9 hours and $3,498.50 in fees, are also included in
Defendant’s fee request. (Id.)

M. Defendant’s Expert Fees Are Unrecoverable and Unreasonable

In this Motion, Defendant seeks to recover its excessive expert witness fees in the amount
of $367,698.75. These are the same unreasonable expert fees that Defendant sought in its

Memorandum of Costs, which Plaintiff moved to strike and tax. (Fitzsimmons Decl., 4 38, Exh.

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 — OFFER TO COMPROMISE; Case No. 2015-1-CV-277582oN DH fF

L.) Although Defendant cannot recover these expert costs twice, Plaintiff addresses Defendant’s
unreasonable and excessive expert witness costs herein because Defendant improperly included
expert witness argument in its Motion.' For the reasons stated above, Defendant’s purported
CCP § 998 Offer does not shift Defendant’s attorney’s fees or expert witness fees to Plaintiff.
Assuming, arguendo, that Defendant was entitled to recover its expert witness fees, the amounts
sought include unreasonable, unnecessary and excessive services. “[T]rial courts have a duty to
determine whether a cost is reasonable in need and amount.” (Thon y. Thompson (1994) 29
Cal.App.4" 1546, 1548-1549.)

1. Mark Lipian M.D.

The most notable and largest amount of the unreasonable expert witness fees claimed are
attributable to Defendant’s retained expert Dr. Mark Lipian. Dr. Lipian is a clinical and forensic
psychiatrist whose hourly rate is $725. Dr. Lipian was designated to testify about the following
issues, “the conduct and results of his independent psychiatric examination of Plaintiff, the cause
and/or existence of Plaintiff's alleged injuries, including emotional distress. (Barta Decl. § 31,
Exh. I.) Defendant identifies the excessive sum of $289,389.81 for Dr. Lipian’s fees.
(Fitzsimmons Decl., { 38, Exh. L.) The patent unreasonableness of this figure is apparent
through a simple comparison of this figure with the other costs attributable to Defendant’s
experts. For example, the next highest figure of $22,034.33, attributed to retained expert Charles
Mahla, is a mere fraction of the fees claimed for Dr. Lipian. (/d.) Dr. Mahla was retained to
testify regarding Plaintiff's economic damages, both future and past wage loss, and or her
mitigation efforts. (Barta Decl. 31, Exh. [.) Dr. Mahla produced complex analysis that was

contained in a 133-page report. (Barta Decl. { 20.) Despite the scale of his involvement, Dr.

' The rules regarding claiming costs, including expert costs, are set forth in California Rule
of Court Rule 3.1700. Defendant filed its Memorandum and Plaintiff filed her Motion to Tax
Costs on April 3, 2018. (Barta Decl., 4 39.) Defendant may oppose Plaintiff's Motion to Strike
and Tax Costs. It was improper for Defendant to include arguments relating to its excessive
expert fees in this Motion.

00022396 v9 -ll-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 —- OFFER TO COMPROMISE; Case No. 2015-1-CV-277582Mahla’s fees were miniscule in comparison with the excessive fees claimed by Dr. Lipian.
(Fitzsimmons Decl., ] 38, Exh. L.)

A review of one of Dr. Lipian’s invoices reveals the excessiveness of his fees. For
example, his May 2017 invoice includes 192.8 hours, for a total of $139,780.00 in fees. (Barta
Decl. 421, Exh. D.) The amount of time he purportedly spent on this matter is excessive and
unreasonable on its face. For example, Dr. Lipian’s claimed daily hours of work on this matter
between May 12, 2017 and May 16, 2017 are listed as follows: 18.5, 15.0, 19.0, 17.6, 17.4. Ud.)
It is incredulous for Dr. Lipian to claim to have worked a 19-hour day, especially before working
successive back-to-back days of over 17 hours. Dr. Lipian’s other invoices, including February
and March 2017, are similarly excessive. (/d.) Dr. Lipian’s February invoice indicates that he
worked on this matter twenty-four days out of the twenty-eight days of the month. (/d.) Surely,
Dr. Lipian must have time to sleep, eat and attend to other personal and professional matters.

The excessiveness of these claimed hours should be analyzed in the context of Dr.
Lipian’s other work duties. During deposition, he testified that he maintains a clinical practice
and sees patients in offices in San Francisco, Newport Beach, and Los Angeles. (Barta Decl., J
22.) Dr. Lipian is also on the faculty of UCLA and testified that he has seen a dramatic increase
in the amount of time he devotes to its forensic psychiatry fellowship program. (/d.) It strains
the bounds of credulity that Dr. Lipian could maintain these responsibilities while
simultaneously completing the excessive claimed hours.

Secondly, Dr. Lipian’s invoices reflect that his fees were being split equally between the
Gordon & Rees firm representing Defendant, and the Littler firm which represented Defendants
Sutter Health and Palo Alto Medical Foundation. (Barta Decl. § 21, Exh. D.) It is unclear if
Defendant is seeking the entirety of fees that were allegedly incurred in relation to Dr. Lipian —
or half of his fees. In either case, the fees are excessive and unreasonable.

Lastly, the conduct of Defendant’s counsel — and representations made to the Court —
suggest Defendant never actually intended to call Dr. Lipian at trial. Up to the afternoon before
Dr. Lipian was supposed to testify, Defendant’s counsel represented to the Court that she was not

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582YN Dw BF BW WN

certain from where or when Dr. Lipian would be traveling for his appearance. (Barta Decl., 7
23.) Further, counsel twice informed Plaintiff's counsel that Dr. Lipian would not be called if
Plaintiff withdrew her emotional distress claim. (/d., ] 24.) The above suggests that Dr. Lipian’s
services were not reasonably necessary to the conduct of the litigation and instead were designed
to dissuade Plaintiff from pursuing her emotional distress claim. Most importantly, Dr. Lipian
never testified at trial. (Barta Decl., § 37.) Defendant should not be entitled to recover these
excessive expert fees that were in no way helpful to the trier of fact at trial.

2. Carol Hyland

Defendant seeks $4,/92.75 in fees relating to retained expert Carol Hyland. Defendant
designated Ms. Hyland to offer testimony regarding “the reasonableness of Plaintiffs efforts to
mitigate her damages and positions that were available to Plaintiff and what they would have
paid.” (Barta Decl. ], 31, Exh. I.) Defendant similarly designated retained expert Charles Mahla
to provide testimony regarding Plaintiff's “mitigation efforts.” For Dr. Mahla, Defendant is
seeking an additional $22,034 in fees. (Id.) The fees relating to the services of Ms. Hyland were
duplicative and cumulative of those relating to Dr. Mahla.

The other portions of Ms. Hyland’s designated areas of testimony were similarly
unreasonable and unnecessary. As to her designation to testify about the “positions available to
Plaintiff,” this information was unnecessary insofar as Plaintiff found work in a similar position
as a neurologist immediately following her departure from PAFMG. Further, Ms. Hyland
testified in deposition that the positions she would testify about at trial (if she had been called)
were not positions that were available back in January 2014 (the relevant time period), because
as stated in her report “it was difficult to do a retrospective search for positions that were
available beginning in January 2014.” (Barta Decl. § 27, Exh. E.)

The record in this matter is replete with evidence regarding Plaintiffs mitigation efforts,
obviating the need for any expert opinion on the subject. Plaintiffs last day working with
Defendant was October 31, 2013. (Barta Decl. 29, Exh. G.) Shortly afterwards in November
or December 2013, Plaintiff began working at Kaiser Neurology while she was establishing her

00022396 v9 -13-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582om NIN DW

own practice. (/d.) Accordingly, since Plaintiff “made efforts to mitigate,” any question about
the reasonableness of her efforts would have been for the trier of fact and would not necessitate
any expert opinion from Ms. Hyland. Importantly, Ms. Hyland was never called to testify at
trial. (Barta Decl. { 37.)

Without supporting documentation, Plaintiff must assume that Ms. Hyland’s costs
include those relating to her purchase of the 2016 Provider Compensation and Productivity
Report. If so, these unnecessary costs should be taxed. During deposition, Ms. Hyland testified
that she purchased this report, which included data for 2015. (Barta Decl., | 27.) This expense
was unnecessary insofar as it pertained to the irrelevant 2015 time period, as opposed to the
period of 2014. Ms. Hyland’s services were unnecessary, duplicative, and should be taxed.

3. Charles Bond

Defendant seeks $16,103.06 in fees relating to retained expert Charles Bond who never
testified at trial. In its Supplemental Expert Designation, Defendant disclosed retained expert
Charles Bond to offer testimony regarding the “background and nature of peer review with the
medical professions as it relates to disruptive behavior. (Barta Decl., { 33, Exh. K.) Peer review
issues were never involved in this action and as such Mr. Bond’s fees relating to this topic are
unnecessary. (/d., § 30, Exh. H.)

4. Nathan Kaufman

Defendant seeks $15,660.06 in fees relating to expert Nathan Kaufman. Mr. Kaufman was
not disclosed by Defendant as an expert in its initial or supplemental disclosures. (Barta Decl. 1]
31,33, Exhs. I, K.) As such, it is unclear how such a large cost could be attributable to a non-
retained expert witness, and the entire amount should be taxed and stricken. Dr. Kaufman was
designated by Defendant Sutter Health and Palo Alto Medical Foundation to offer testimony
regarding “the differences between the foundation-medical group structure under Section
1206(1)/Defendants’ operations and a joint venture.” (Barta Decl. § 32, Exh. J.) Dr. Kaufman was
not even designated by Defendant and it is inappropriate for Defendant to include Dr. Kaufman’s
fees in the Memorandum. It was also unnecessary for any defendant to retain and pay an expert

00022396 v9 -14-

PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
POST CCP §998 — OFFER TO COMPROMISE: Case No. 2015-1-CV-277582for testimony on this issue. At trial, Judicial Council of California jury instructions were given
regarding the meaning of a joint venture rendering Mr. Kaufman’s testimony on this topic
unnecessary. Further demonstrating the unnecessary nature of Dr. Kaufman’s designation on the
topic of joint ventures is testimony from Dr. Kaufman’s deposition wherein he demonstrated a

lack of understanding of the subject. (Barta Decl. { 28, Exh. F.)

N. Defendant’s Motion Exceeds the Applicable Page Limit and is Procedurally
Improper

The Court should decline to consider the pages of the Motion that exceed the page limit.
“Except in a summary judgment or summary adjudication motion, no opening or responding
memorandum may exceed 15 pages.” (Cal. R. Ct. 3.1113.) Defendant filed a 21 page
Memorandum of Points and Authorities. “A memorandum that exceeds the page limits of these
rules must be filed and considered in the same manner as a late-filed paper.” (Cal. R. Ct. 3.1113
(g).) The Court has discretion to refuse to consider this excessively long submission. (Cal. R.
Ct. 3.1300 (d).)

IV. CONCLUSION
Based on the foregoing, Plaintiff respectfully requests that the Court Deny Defendant’s

Motion for Attorneys’ Fees and Costs Post CCP § 998 — Offer to Compromise.
BARTA LAW

DATE: April 11,2018 hu Pade

Theresa J
Attorney for Plaintiff

LOUDERBACK LAW GROUP

DATE: April 11, 2018 LL p¢§——
Charles M. Louderback

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

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PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT
PALO ALTO FOUNDATION MEDICAL GROUP INC.’S MOTION FOR ATTORNEYS’ FEES AND COSTS
PAST CCP §99R — OFFFR TO COMPROMISF: Case No 9015-1-CV-2775297