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JAMES A. SARRAIL (SBN 43075)
JONATHAN S. LARSEN (SBN 130269)
SARRAIL, CASTILLO & ALL, LLP
111 Anza Blvd., Suite 203
Burlingame, CA 94010
Telephone: (650) 685-9200
Facsimile: (650)685-9206
Attorneys for Plaintiff/Judgment Creditor
VINCE HANNA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10 VINCE KHANNA, No. 106CV074362
il Plaintiff, ) PLAINTIFF/JUDGMENT CREDITOR
) VINCE KHANNA’S OPPOSITION TO
12 VS. DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR
13 SONASOFT CORP., a California RECONSIDERATION
Corporation, ANDY KHANNA, an
14 individual; and DOES 1 through 20, Date: June 16, 2020
inclusive. Time: 9:00 a.m.
15 Department: 21
Defendants.
16 Hearing Officer: The Honorable Thang
N. Barrett
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Il. INTRODUCTION
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Defendant and Judgment Debtor Sonasoft Corp. (“Sonasoft’) is, yet again,
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ausing unnecessary delay and is driving up the attorney's fees, costs and interest it
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owes to Plaintiff and Judgment Creditor Vince Khanna (“Vince”) by bringing a Motion for
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Reconsideration of this court’s well considered order awarding Vince post-judgment
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attorney’s fees, costs and interests. Sonasaft does so even though this court, at oral
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argument at the original hearing, granted Sonasoft the opportunity to file a
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supplemental brief; Sonasoft does so now by claiming new facts—facts which have
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absolutely no bearing on the motion; Sonasoft does so, even though it raised these
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arguments in its original opposition, or forfeited the arguments by failing to timely raise
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PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR RECONSIDERATION 1
them. There is no reason for this court to either reconsider nor change its prior order.
Il. FACTUAL BACKGROUND
A In The First Appeal, The Sixth District Upheld Vince’s
Entitlement to Post-Judgment Attorney's Fees, Costs
And Interest.
In April 2010, the parties settled Vince's claim of failure to pay wages at a
judicially supervised settlement. Sonasoft breached its agreement to pay the
settlement amounts, and in December 2010, this court entered judgment pursuant to
that settlement. In June 2012, after two years of having efforts to collect on the
judgment thwarted at every turn by Sonasoft, Vince timely filed his cost bill after
10
judgment, claiming attorney's fees, costs, and interest as part of his cost bill. Sonasoft
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brought a Motion to Tax Costs. (Request for Judicial Notice (“Request”), No. One, at p.
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7). On January 7, 2013, the Honorable Erica Yew issued her 16 page order on
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Sonasoft's Motion to Tax Costs, finding that Vince was entitled to recovery of attorney's
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fees as costs under the “otherwise provided by law” language of the Code of Civil
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Procedure section 685.040, pursuant to Labor Code section 218.5, to the extent that
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claimed fees were incurred in judgment enforcement. The court requested additional
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briefing and argument on the issue of the propriety of accrued interest and the
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reasonableness of attorney’s fees. (Id., at p. 8).
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After this additional briefing, on June 10, 2013, the court issued its order
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regarding the attorney’s fees, costs and interest, awarding Vince post-judgment
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attorney's fees, costs and interest. (Id., at 9). On June 27, 2013, the court amended its
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June 10, 2013 order, adding to its award additional previously awarded $6,368.44
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costs (Id), On that same day, the court entered the Amended Judgment. Significantly,
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this amended judgment states, in part, that “Nothing herein shall preclude Judgment
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Creditor [Vince] from seeking attorney's fees, costs and interest subsequent to
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1/31/13.” (Id., at p. 9).
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Sonasoft appealed the amended judgment in August 2013. (Id., at p. 9). On
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September 24, 2013, this court entered the Second Amended Judgment, adding Andy
PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.'S MOTION FOR RECONSIDERATION 2
Khanna (“Andy”) as a judgment debtor, and entered judgment in the amount of
$193,188.00. (Id., atp. 10). This Second Amended Judgment likewise contained
language that “Nothing shall preclude Judgment Creditor from seeking attorney's fees,
costs, and interest subsequent to 1/31/2013.” (Id.; see also, Request No. Two).
On November 8, 2013, Andy and Sonasoft appealed the Second Amended
Judgment, adding to their earlier appeal of the June 2013 Amended Judgment
(‘Sonasoft I’). (d., at p. 11). To stay enforcement of this Second Amended Judgment
pending their appeal in Sonasoft |, on August 22, 2014, Sonasoft filed an undertaking
pursuant to CCP section 917.1 in the amount of $289,782.00, with American
10 Contractor's Indemnity Company acting as the surety. (Request No. Three). On
il November 11, 2014, this court stayed further judgment enforcement proceedings
12 pending the appeal. (Request No. Four).
13 On June 30, 2016, the Sixth Appellate Court issued its written decision in
14 Sonasoft | in an unpublished opinion. The Court modified the judgment, overturning
15 this court’s order making Andy a judgment debtor. In all other respects, including
16 Vince's entitlement to attorney’s fees, costs and interest for judgment enforcement
17 efforts against Sonasoft after this court’s June 25, 2013, order, was upheld, including
18 the language stating, “Nothing herein shall preclude Judgment Creditor from seeking
19 attorney’s fees, costs and interest subsequent to 1/31/13.” (Request No. One). On July
20 15, 2016, Sonasoft filed a petition for rehearing. The Appellate Court denied the
21 petition on July 25, 2016. (Request No. Five). On August 15, 2016, Sonasofft filed a
22 petition for review with the California Supreme Court. On September 21, 2016, the
23 California Supreme Court denied Sonasoft’s petition. (Request No. Six). On
24 September 22, 2016, the Sixth District issued its remittitur to this court. (Request No.
25 Five).
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B. Sonasoft, Andy and Vince Filed Post-Appellate Motions In Thi:
27 Court.
28 Yet, after the issuance of the remittitur, neither Sonasoft nor American paid the
PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR RECONSIDERATION 3
outstanding judgment. On December 22, 2016, this court granted Vince’s Motion to
Add the Surety as an Additional Judgment Debtor. To further delay Vince's collection
of his judgment against Sonasoft, Andy individually filed a motion to collect his
attorney's fees on appeal as his own costs on appeal. On December 22, 2016, this
court denied Andy’s Motion. (Request No. Seven). Sonasoft brought ancther post-
appeal motion, seeking to reduce Vince's judgment in half. The court denied
Sonasoft’s Motion. (Request No. Eight). Sonasoft, American, and Andy appealed ail
three of this court's orders (“Sonasoft II”).' (Request No. Nine, at pp. 3-5).
Sonasoft made two motions in this court to have the undertaking dismissed
10 during the pendency of the second appeal. This court denied both of Sonasoft
11 motions. Thereafter, Sonasoft brought a substantially similar motion in the Appellate
12 Court, again seeking to have the undertaking dismissed while the Sixth District
13 considered Sonasoft II. Sonasoft’s counsel, however, failed to disclose to the Appellate
14 Court that this court had rejected Sonasoft's request on two occasions. After briefing,
15 including a sanctions motion brought by Vince in response to Sonasoft’s motion, the
16 Appeal Court denied Sonasoft’s motion, and left the issue of sanctions, including the
17 amount of sanctions, for consideration at oral argument. (Id., at pp. 19-22)
18 After extensive briefing, the Appellate Court heard oral argument on August 15
19 019. On September 27, 2019, the Sixth District issued its opinion in Sonasoft Il
20 upholding all three orders, and awarding costs on appeal to Vince. (Request Nos. Nine
2) and Ten). The Appellate Court also awarded Vince sanctions in the amount of
22 $7,765.00 to be paid by Sonasoft’s counsel. (Request No. Nine, at pp. 19-22). On
23 December 11, 2019, the Supreme Court denied Sonasoft’s writ petition. (Request No.
24 Eleven). The Sixth District issued the.remittitur on December 12, 2019. (Request No
25 Ten)
26 Following the remittitur, Vince filed a motion for his attorney's fees, costs and
27 interest incurred from February 1, 2013, to December 1, 2019, and Sonasoft filed
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During of the briefing period of Appeal No. Two, as his health continued to deteriorate, Vince applied fora
preference before the Appellate Court, which the Appellate Court granted in November 2018.
PLAINTIFF/JUDGMENT GREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR RECONSIDERATION
opposition thereto. At the oral argument, the court granted Sonasoft's request for
supplemental briefing. Following supplement briefing by both parties, this court granted
Vince's motion with modifications to Vince’s request. Sonasoft filed the instant Motion
for Reconsideration of this court’s order.
Hl. LEGAL ARGUMENT
A This Is Sonasoft’s Third “Bite At The Same Apple.”
In its moving papers, Sonasoft ironically complains that Vince should not be
allowed a “second bite at the apple.” (See, Sonasoft’s Memorandum of Points and
Authorities, at 3:2-4). Yet, this Motion for Reconsideration is Sonasoft's third “bite” in
10 opposing Vince's effort to collect his judicially awarded attorney's fees, costs and
i interest-its original opposition, its supplement opposition, and its present motion for
12 reconsideration. This effort should be seen for what it is~yet another effort to keep
13 Vince from receiving those amounts which are rightfully his pursuant to the rulings of
14 this court and the Appellate Court.
15 B. The Claimed New Facts Have No Bearing On This
Court’s Decision.
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Sonasoft claims new facts justify its motion for reconsideration-- the release of
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the amount of the appellate undertaking to Vince, the subsequent filing of the
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satisfaction of judgment against American Contractors and partial satisfaction of
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judgment against Sonasoft. Sonasoft fails to state why these new facts should change
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any facts and circumstances relating to the court's order. At best, Sonasoft claims that
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the interest will have been paid in full through December 1, 2019. See, Sonasoft’s
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Memorandum of Points and Authorities, at 2:16-25). Even if this were true, it does not
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change the court’s order—that Vince was entitled to interest through December 1, 2019.
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Nor does Sonasoft explain how these claimed new facts can in any way change any
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other aspect of the court’s order.
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Indeed, Sonasoft’s arguments and “new facts” do not address the basis of this
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court’s order which addresses Vince's rights as of December 1, 2019; all of Sonasoft’s
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PLAINTIFF/JUDGMENT GREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.'S MOTION FOR RECONSIDERATION 5
arguments address issues post-December 1, 2019. Payments by or on behalf of
Sonasoft in March 2020 (i.e., the surety’s payment) has been credited to Sonasoft, as
evidence by the partial satisfaction of judgment filed by Vince on receipt of the
payment. This payment, however, does not change the content of this court’s order,
i.e., the status of the court’s findings as of December 1, 2019.
Cc Sonasoft Attempts To Revive A Forfeited Argument.
Sonasoft asserts that this court was wrong in finding that Sonasoft forfeited the
argument that the judicially supervised settlement bars any claim for attorney's fees.
(See, Sonasoft's Memorandum of Points and Authorities, at 4:3-5:2). It claims that prior
10 counsel forfeited this argument in relation to a prior argument, but that such forfeiture
1 has no impact on any subsequent mation, including the present motion. Sonasoft fails
12 to provide any authority for the rather remarkable proposition that its earlier forfeiture of
13 an argument does not apply to a subsequent motion. Simply put, a forfeiture is a
14 forfeiture-it is a loss. Black’s Law Online Legal Dictionary, 2™ Ed., “What is
15 Forfeiture?” When a thing is lost, without more, it is gone forever. The Appellate
16 Court in Sonasoft |, in fact, found that Sonasoft had forfeited its right to argue that the
17 2010 settlement agreement barred Vince's claims for attorney's fees and costs.
18 Sonasoft’s right to now claim that the 2010, settlement agreement bars Vince's
19 recovery of attorney's fees and costs is lost, and Sonasoft cannot raise it again.
20 Additionally, Sonasoft’s reading of the Appellate Court's decision is limited. The
21 Appellate Court in Sonasoft | did not simply find that Sonasoft had forfeited this
22 argument. Instead, the Appellate Court analyzed Sonasoft's argument that the
23 settlement barred Vince's claim for attorney’s fees and costs. After considerable
24 discussion, the Appellate Court stated:
25 Neither the settlement as set forth in the September 23, 2010, order, nor
the judgment entered pursuant thereto expressly waived postjudgment costs
26 or attorney fees incident to a money judgment. The settlement was, in fact,
silent as to respondent's recovery of such costs and fees incident to a
27 money judgment. We cannot say that such fees and costs were ex ressly
waived, or by necessary implication excl iuded, by the settlement. (R equest
28 No. One, p. 25).
PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
6
SONASOFT CORP.’S MOTION FOR RECONSIDERATION
Therefore, Sonasoft, in arguing that the settlement barred Vince's right to
attorney's fees and costs, is nothing more than another effort to re-litigate decided
issues. The court should not allow to Sonasoft to revisit long decided issues
D. Sonasoft Has Forfeited The Argument That The Attorney’s Fees
Motion Should Have Been Made Earlier.
Sonasoft argues for the first time in the present Motion for Reconsideration that
Vince should have made the Motion for Attorney's fees earlier. It fails to show any
change in the law between the time of the court's order and the time of filing this motion
that would justify raising this argument for the first time on the Motion for
Reconsideration. Rather, its failure to raise the argument, either in its original
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opposition, or in its supplemental opposition, forfeits this argument.
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Further, Vince timely filed his Motion for Fees. The Second Amended Judgment,
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as affirmed by the Sixth District, states, “Nothing herein shall preclude Judgment
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Creditor from collecting his attorney's fees, costs and interest subsequent to
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1/31/2013.” “Nothing” here means that once Vince’s entitlement to fees had been
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established, he could seek the amount of the attorney's fees, costs and interest at any
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time until a full satisfaction is filed and the matter dismissed. This interpretation is
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supported by judicial economy. This court should not want, and does not want,
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piecemeal motions for fees. Hence, “nothing” means that the motion could be brought
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at any time, and is only subject to request and proof of the claimed amount of the fees
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as reasonably and necessarily incurred in post-judgment enforcement.
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Finally, requiring multiple motions would undermine the public policy purpose of
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Labor Code, Section 218.5. Labor Code, Section 218.5 is designed to protect against
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employers who violate the law in their financial treatment of their employees. This
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purpose would be thwarted if the court now permits Sonasoft, after years of extensive
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and expensive efforts to thwart Vince's efforts to collect his judgment, to escape the
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impact of those wrongful efforts by requiring Vince to pay his attorney’s fees to collect
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that judgment. Should the employee be saddied with these expenses when he
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PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA'S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR RECONSIDERATION
1 justifiably relied on the Judgments of this court to protect his rights to such fees?
2 \V. CONCLUSION
3 Sonasoft has failed to put forth any new facts relevant to this issue or changes in
the law subsequent to the court’s order to support its argument that this court should
reconsider and alter its prior order. Sonasoft’s Motion for Reconsideration should be
denied
Dated q Sarrail, Castillo and Hall, LLP
10 Yale:
James A: a
11 ttorneys For Plaintiff ‘and
udgment Creditor Vince Khanna
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PROOF OF SERVICE
PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR RECONSIDERATION
[ declare that | am employed in County of San Mateo, California. | am over the age
of eighteen years and not a party to the within cause; my business address is 111 Anza
Blvd, Suite 203, Burlingame, CA 94010.
On June 2, 2020, | served a true copy of the following document PLAINTIFF/JUDGMENT
CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.'S MOTION
FOR RECONSIDERATION on the opposing parties in said cause, in the manner indicated as
follows:
Steve M. Defilippis
Picone & Defilippis
625 N. First St.
San Jose, CA 95112
Tel: (408) 292-0441
Fax: (408) 287-6550
flipsmd2005@yahoo.com
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11 [] BY MAIL: | caused such envelope to be deposited in the mail at
Burlingame, California. The envelope was mailed with postage thereon fully
12 prepaid. | am "readily familiar" with my firm's practice of collection and
processing correspondence for mailing. !tis deposited with the U.S. postage
13 service that same day in the ordinary course of business. | am aware that
on motion of party served, service is presumed invalid if postal cancellation
14 date or postage meter date is more that one day after date of deposit for
mailing affidavit.
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[] BY PERSONAL SERVICE: | placed a true copy thereof in a sealed
16 envelope, and caused such envelope to be delivered by hand to the
addressee(s) noted above.
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[1 BY FACSIMILE: I ersonall sent to the address's telecopier number
18 indicated after the address(es) noted above, a true copy of the above-
described document(s).
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(1 BY FEDERAL EXPRESS: | placed a true copy in a sealed Federal Express
20 envelope and caused such envelope to be picked up by Federal Express and
delivered to the addressee(s) noted above.
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IX] BY EMAIL: | personally sent to the addressees’ email indicated above, a true
22 copy of the above-described document(s). By transmitting vial email only the
document listed above to the person(s) listed above. In compliance with
23 governmental shelter-in-place orders, and in accordance with Code of Civil
Procedure, 1010.6, Sarrail, Castillo and Hall, LLP, is using electronic service
24 only for service of documents, including electronic transmission and
electronic notification. Your receipt without objection to this notice will
25 constitute your mutual agreement and express consent to accept electronic
service. Documents served in this fashion shall be treated as though served
26 by US Mail and due dates are to be calculated in accordance with the Code
of Civil Procedure.
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PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
SONASOFT CORP.’S MOTION FOR RECONSIDERATION 9
| declare under penalty of perjury that the foregoing is true and correct, and that this
declaration was executed on June 2, 2020, at AA California.
Vw
Jonathan 6. Larsen
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PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR
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SONASOFT CORP.’S MOTION FOR RECONSIDERATION
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JAMES A. SARRAIL (SBN 43075) JONATHAN S. LARSEN (SBN 130269) SARRAIL, CASTILLO & ALL, LLP 111 Anza Blvd., Suite 203 Burlingame, CA 94010 Telephone: (650) 685-9200 Facsimile: (650)685-9206 Attorneys for Plaintiff/Judgment Creditor VINCE HANNA SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 VINCE KHANNA, No. 106CV074362 il Plaintiff, ) PLAINTIFF/JUDGMENT CREDITOR ) VINCE KHANNA’S OPPOSITION TO 12 VS. DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR 13 SONASOFT CORP., a California RECONSIDERATION Corporation, ANDY KHANNA, an 14 individual; and DOES 1 through 20, Date: June 16, 2020 inclusive. Time: 9:00 a.m. 15 Department: 21 Defendants. 16 Hearing Officer: The Honorable Thang N. Barrett 17 18 Il. INTRODUCTION 19 Defendant and Judgment Debtor Sonasoft Corp. (“Sonasoft’) is, yet again, 20 ausing unnecessary delay and is driving up the attorney's fees, costs and interest it 21 owes to Plaintiff and Judgment Creditor Vince Khanna (“Vince”) by bringing a Motion for 22 Reconsideration of this court’s well considered order awarding Vince post-judgment 23 attorney’s fees, costs and interests. Sonasaft does so even though this court, at oral 24 argument at the original hearing, granted Sonasoft the opportunity to file a 25 supplemental brief; Sonasoft does so now by claiming new facts—facts which have 26 absolutely no bearing on the motion; Sonasoft does so, even though it raised these 27 arguments in its original opposition, or forfeited the arguments by failing to timely raise 28 PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR RECONSIDERATION 1 them. There is no reason for this court to either reconsider nor change its prior order. Il. FACTUAL BACKGROUND A In The First Appeal, The Sixth District Upheld Vince’s Entitlement to Post-Judgment Attorney's Fees, Costs And Interest. In April 2010, the parties settled Vince's claim of failure to pay wages at a judicially supervised settlement. Sonasoft breached its agreement to pay the settlement amounts, and in December 2010, this court entered judgment pursuant to that settlement. In June 2012, after two years of having efforts to collect on the judgment thwarted at every turn by Sonasoft, Vince timely filed his cost bill after 10 judgment, claiming attorney's fees, costs, and interest as part of his cost bill. Sonasoft i brought a Motion to Tax Costs. (Request for Judicial Notice (“Request”), No. One, at p. 12 7). On January 7, 2013, the Honorable Erica Yew issued her 16 page order on 13 Sonasoft's Motion to Tax Costs, finding that Vince was entitled to recovery of attorney's 14 fees as costs under the “otherwise provided by law” language of the Code of Civil 15 Procedure section 685.040, pursuant to Labor Code section 218.5, to the extent that 16 claimed fees were incurred in judgment enforcement. The court requested additional 17 briefing and argument on the issue of the propriety of accrued interest and the 18 reasonableness of attorney’s fees. (Id., at p. 8). 19 After this additional briefing, on June 10, 2013, the court issued its order 20 regarding the attorney’s fees, costs and interest, awarding Vince post-judgment 21 attorney's fees, costs and interest. (Id., at 9). On June 27, 2013, the court amended its 22 June 10, 2013 order, adding to its award additional previously awarded $6,368.44 23 costs (Id), On that same day, the court entered the Amended Judgment. Significantly, 24 this amended judgment states, in part, that “Nothing herein shall preclude Judgment 25 Creditor [Vince] from seeking attorney's fees, costs and interest subsequent to 26 1/31/13.” (Id., at p. 9). 27 Sonasoft appealed the amended judgment in August 2013. (Id., at p. 9). On 28 September 24, 2013, this court entered the Second Amended Judgment, adding Andy PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.'S MOTION FOR RECONSIDERATION 2 Khanna (“Andy”) as a judgment debtor, and entered judgment in the amount of $193,188.00. (Id., atp. 10). This Second Amended Judgment likewise contained language that “Nothing shall preclude Judgment Creditor from seeking attorney's fees, costs, and interest subsequent to 1/31/2013.” (Id.; see also, Request No. Two). On November 8, 2013, Andy and Sonasoft appealed the Second Amended Judgment, adding to their earlier appeal of the June 2013 Amended Judgment (‘Sonasoft I’). (d., at p. 11). To stay enforcement of this Second Amended Judgment pending their appeal in Sonasoft |, on August 22, 2014, Sonasoft filed an undertaking pursuant to CCP section 917.1 in the amount of $289,782.00, with American 10 Contractor's Indemnity Company acting as the surety. (Request No. Three). On il November 11, 2014, this court stayed further judgment enforcement proceedings 12 pending the appeal. (Request No. Four). 13 On June 30, 2016, the Sixth Appellate Court issued its written decision in 14 Sonasoft | in an unpublished opinion. The Court modified the judgment, overturning 15 this court’s order making Andy a judgment debtor. In all other respects, including 16 Vince's entitlement to attorney’s fees, costs and interest for judgment enforcement 17 efforts against Sonasoft after this court’s June 25, 2013, order, was upheld, including 18 the language stating, “Nothing herein shall preclude Judgment Creditor from seeking 19 attorney’s fees, costs and interest subsequent to 1/31/13.” (Request No. One). On July 20 15, 2016, Sonasoft filed a petition for rehearing. The Appellate Court denied the 21 petition on July 25, 2016. (Request No. Five). On August 15, 2016, Sonasofft filed a 22 petition for review with the California Supreme Court. On September 21, 2016, the 23 California Supreme Court denied Sonasoft’s petition. (Request No. Six). On 24 September 22, 2016, the Sixth District issued its remittitur to this court. (Request No. 25 Five). 26 B. Sonasoft, Andy and Vince Filed Post-Appellate Motions In Thi: 27 Court. 28 Yet, after the issuance of the remittitur, neither Sonasoft nor American paid the PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR RECONSIDERATION 3 outstanding judgment. On December 22, 2016, this court granted Vince’s Motion to Add the Surety as an Additional Judgment Debtor. To further delay Vince's collection of his judgment against Sonasoft, Andy individually filed a motion to collect his attorney's fees on appeal as his own costs on appeal. On December 22, 2016, this court denied Andy’s Motion. (Request No. Seven). Sonasoft brought ancther post- appeal motion, seeking to reduce Vince's judgment in half. The court denied Sonasoft’s Motion. (Request No. Eight). Sonasoft, American, and Andy appealed ail three of this court's orders (“Sonasoft II”).' (Request No. Nine, at pp. 3-5). Sonasoft made two motions in this court to have the undertaking dismissed 10 during the pendency of the second appeal. This court denied both of Sonasoft 11 motions. Thereafter, Sonasoft brought a substantially similar motion in the Appellate 12 Court, again seeking to have the undertaking dismissed while the Sixth District 13 considered Sonasoft II. Sonasoft’s counsel, however, failed to disclose to the Appellate 14 Court that this court had rejected Sonasoft's request on two occasions. After briefing, 15 including a sanctions motion brought by Vince in response to Sonasoft’s motion, the 16 Appeal Court denied Sonasoft’s motion, and left the issue of sanctions, including the 17 amount of sanctions, for consideration at oral argument. (Id., at pp. 19-22) 18 After extensive briefing, the Appellate Court heard oral argument on August 15 19 019. On September 27, 2019, the Sixth District issued its opinion in Sonasoft Il 20 upholding all three orders, and awarding costs on appeal to Vince. (Request Nos. Nine 2) and Ten). The Appellate Court also awarded Vince sanctions in the amount of 22 $7,765.00 to be paid by Sonasoft’s counsel. (Request No. Nine, at pp. 19-22). On 23 December 11, 2019, the Supreme Court denied Sonasoft’s writ petition. (Request No. 24 Eleven). The Sixth District issued the.remittitur on December 12, 2019. (Request No 25 Ten) 26 Following the remittitur, Vince filed a motion for his attorney's fees, costs and 27 interest incurred from February 1, 2013, to December 1, 2019, and Sonasoft filed 28 During of the briefing period of Appeal No. Two, as his health continued to deteriorate, Vince applied fora preference before the Appellate Court, which the Appellate Court granted in November 2018. PLAINTIFF/JUDGMENT GREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR RECONSIDERATION opposition thereto. At the oral argument, the court granted Sonasoft's request for supplemental briefing. Following supplement briefing by both parties, this court granted Vince's motion with modifications to Vince’s request. Sonasoft filed the instant Motion for Reconsideration of this court’s order. Hl. LEGAL ARGUMENT A This Is Sonasoft’s Third “Bite At The Same Apple.” In its moving papers, Sonasoft ironically complains that Vince should not be allowed a “second bite at the apple.” (See, Sonasoft’s Memorandum of Points and Authorities, at 3:2-4). Yet, this Motion for Reconsideration is Sonasoft's third “bite” in 10 opposing Vince's effort to collect his judicially awarded attorney's fees, costs and i interest-its original opposition, its supplement opposition, and its present motion for 12 reconsideration. This effort should be seen for what it is~yet another effort to keep 13 Vince from receiving those amounts which are rightfully his pursuant to the rulings of 14 this court and the Appellate Court. 15 B. The Claimed New Facts Have No Bearing On This Court’s Decision. 16 Sonasoft claims new facts justify its motion for reconsideration-- the release of 17 the amount of the appellate undertaking to Vince, the subsequent filing of the 18 satisfaction of judgment against American Contractors and partial satisfaction of 19 judgment against Sonasoft. Sonasoft fails to state why these new facts should change 20 any facts and circumstances relating to the court's order. At best, Sonasoft claims that 21 the interest will have been paid in full through December 1, 2019. See, Sonasoft’s 22 Memorandum of Points and Authorities, at 2:16-25). Even if this were true, it does not 23 change the court’s order—that Vince was entitled to interest through December 1, 2019. 24 Nor does Sonasoft explain how these claimed new facts can in any way change any 25 other aspect of the court’s order. 26 Indeed, Sonasoft’s arguments and “new facts” do not address the basis of this 27 court’s order which addresses Vince's rights as of December 1, 2019; all of Sonasoft’s 28 PLAINTIFF/JUDGMENT GREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.'S MOTION FOR RECONSIDERATION 5 arguments address issues post-December 1, 2019. Payments by or on behalf of Sonasoft in March 2020 (i.e., the surety’s payment) has been credited to Sonasoft, as evidence by the partial satisfaction of judgment filed by Vince on receipt of the payment. This payment, however, does not change the content of this court’s order, i.e., the status of the court’s findings as of December 1, 2019. Cc Sonasoft Attempts To Revive A Forfeited Argument. Sonasoft asserts that this court was wrong in finding that Sonasoft forfeited the argument that the judicially supervised settlement bars any claim for attorney's fees. (See, Sonasoft's Memorandum of Points and Authorities, at 4:3-5:2). It claims that prior 10 counsel forfeited this argument in relation to a prior argument, but that such forfeiture 1 has no impact on any subsequent mation, including the present motion. Sonasoft fails 12 to provide any authority for the rather remarkable proposition that its earlier forfeiture of 13 an argument does not apply to a subsequent motion. Simply put, a forfeiture is a 14 forfeiture-it is a loss. Black’s Law Online Legal Dictionary, 2™ Ed., “What is 15 Forfeiture?” When a thing is lost, without more, it is gone forever. The Appellate 16 Court in Sonasoft |, in fact, found that Sonasoft had forfeited its right to argue that the 17 2010 settlement agreement barred Vince's claims for attorney's fees and costs. 18 Sonasoft’s right to now claim that the 2010, settlement agreement bars Vince's 19 recovery of attorney's fees and costs is lost, and Sonasoft cannot raise it again. 20 Additionally, Sonasoft’s reading of the Appellate Court's decision is limited. The 21 Appellate Court in Sonasoft | did not simply find that Sonasoft had forfeited this 22 argument. Instead, the Appellate Court analyzed Sonasoft's argument that the 23 settlement barred Vince's claim for attorney’s fees and costs. After considerable 24 discussion, the Appellate Court stated: 25 Neither the settlement as set forth in the September 23, 2010, order, nor the judgment entered pursuant thereto expressly waived postjudgment costs 26 or attorney fees incident to a money judgment. The settlement was, in fact, silent as to respondent's recovery of such costs and fees incident to a 27 money judgment. We cannot say that such fees and costs were ex ressly waived, or by necessary implication excl iuded, by the settlement. (R equest 28 No. One, p. 25). PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR 6 SONASOFT CORP.’S MOTION FOR RECONSIDERATION Therefore, Sonasoft, in arguing that the settlement barred Vince's right to attorney's fees and costs, is nothing more than another effort to re-litigate decided issues. The court should not allow to Sonasoft to revisit long decided issues D. Sonasoft Has Forfeited The Argument That The Attorney’s Fees Motion Should Have Been Made Earlier. Sonasoft argues for the first time in the present Motion for Reconsideration that Vince should have made the Motion for Attorney's fees earlier. It fails to show any change in the law between the time of the court's order and the time of filing this motion that would justify raising this argument for the first time on the Motion for Reconsideration. Rather, its failure to raise the argument, either in its original 10 opposition, or in its supplemental opposition, forfeits this argument. il Further, Vince timely filed his Motion for Fees. The Second Amended Judgment, 12 as affirmed by the Sixth District, states, “Nothing herein shall preclude Judgment 13 Creditor from collecting his attorney's fees, costs and interest subsequent to 14 1/31/2013.” “Nothing” here means that once Vince’s entitlement to fees had been 15 established, he could seek the amount of the attorney's fees, costs and interest at any 16 time until a full satisfaction is filed and the matter dismissed. This interpretation is 17 supported by judicial economy. This court should not want, and does not want, 18 piecemeal motions for fees. Hence, “nothing” means that the motion could be brought 19 at any time, and is only subject to request and proof of the claimed amount of the fees 20 as reasonably and necessarily incurred in post-judgment enforcement. 21 Finally, requiring multiple motions would undermine the public policy purpose of 22 Labor Code, Section 218.5. Labor Code, Section 218.5 is designed to protect against 23 employers who violate the law in their financial treatment of their employees. This 24 purpose would be thwarted if the court now permits Sonasoft, after years of extensive 25 and expensive efforts to thwart Vince's efforts to collect his judgment, to escape the 26 impact of those wrongful efforts by requiring Vince to pay his attorney’s fees to collect 27 that judgment. Should the employee be saddied with these expenses when he 28 PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA'S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR RECONSIDERATION 1 justifiably relied on the Judgments of this court to protect his rights to such fees? 2 \V. CONCLUSION 3 Sonasoft has failed to put forth any new facts relevant to this issue or changes in the law subsequent to the court’s order to support its argument that this court should reconsider and alter its prior order. Sonasoft’s Motion for Reconsideration should be denied Dated q Sarrail, Castillo and Hall, LLP 10 Yale: James A: a 11 ttorneys For Plaintiff ‘and udgment Creditor Vince Khanna 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR RECONSIDERATION [ declare that | am employed in County of San Mateo, California. | am over the age of eighteen years and not a party to the within cause; my business address is 111 Anza Blvd, Suite 203, Burlingame, CA 94010. On June 2, 2020, | served a true copy of the following document PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.'S MOTION FOR RECONSIDERATION on the opposing parties in said cause, in the manner indicated as follows: Steve M. Defilippis Picone & Defilippis 625 N. First St. San Jose, CA 95112 Tel: (408) 292-0441 Fax: (408) 287-6550 flipsmd2005@yahoo.com 10 11 [] BY MAIL: | caused such envelope to be deposited in the mail at Burlingame, California. The envelope was mailed with postage thereon fully 12 prepaid. | am "readily familiar" with my firm's practice of collection and processing correspondence for mailing. !tis deposited with the U.S. postage 13 service that same day in the ordinary course of business. | am aware that on motion of party served, service is presumed invalid if postal cancellation 14 date or postage meter date is more that one day after date of deposit for mailing affidavit. 15 [] BY PERSONAL SERVICE: | placed a true copy thereof in a sealed 16 envelope, and caused such envelope to be delivered by hand to the addressee(s) noted above. 17 [1 BY FACSIMILE: I ersonall sent to the address's telecopier number 18 indicated after the address(es) noted above, a true copy of the above- described document(s). 19 (1 BY FEDERAL EXPRESS: | placed a true copy in a sealed Federal Express 20 envelope and caused such envelope to be picked up by Federal Express and delivered to the addressee(s) noted above. 21 IX] BY EMAIL: | personally sent to the addressees’ email indicated above, a true 22 copy of the above-described document(s). By transmitting vial email only the document listed above to the person(s) listed above. In compliance with 23 governmental shelter-in-place orders, and in accordance with Code of Civil Procedure, 1010.6, Sarrail, Castillo and Hall, LLP, is using electronic service 24 only for service of documents, including electronic transmission and electronic notification. Your receipt without objection to this notice will 25 constitute your mutual agreement and express consent to accept electronic service. Documents served in this fashion shall be treated as though served 26 by US Mail and due dates are to be calculated in accordance with the Code of Civil Procedure. 27 28 i PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR SONASOFT CORP.’S MOTION FOR RECONSIDERATION 9 | declare under penalty of perjury that the foregoing is true and correct, and that this declaration was executed on June 2, 2020, at AA California. Vw Jonathan 6. Larsen 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF/JUDGMENT CREDITOR VINCE KHANNA’S OPPOSITION TO DEFENDANT/JUDGMENT DEBTOR 10 SONASOFT CORP.’S MOTION FOR RECONSIDERATION