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1 KNIGHT LAW GROUP, LLP
Steve Mikhov (SBN 224676)
2 5/19/2020
10250 Constellation Blvd, Suite 2500
3 Los Angeles, CA 90067
Telephone: (310) 552-2250
4 Fax: (323) 939-7973
5 WIRTZ LAW APC
Richard M. Wirtz (SBN 137812)
6 rwirtz@wirtzlaw.com
Amy R. Rotman (SBN 286128)
7 arotman@wirtzlaw.com
8 Jessica R. Underwood (SBN 306481)
junderwood@wirtzlaw.com
9 4370 La Jolla Village Drive, Suite 800
San Diego, California 92122
10 Telephone: (858) 259-5009
11
Attorneys for Plaintiffs,
12 MELISSA A. WILLIAMS and
GEOFFREY G. WILLIAMS
13
14 SUPERIOR COURT OF CALIFORNIA
15 COUNTY OF BUTTE
16 MELISSA A. WILLIAMS and GEOFFREY Case No.: 17CV02617
17 G. WILLIAMS,
PLAINTIFFS’ RESPONSE TO
EVIDENTIARY OBJECTIONS TO
18 Plaintiffs, DECLARATIONS OF STEVE MIKHOV
vs. AND RICHARD M. WIRTZ IN
19 OPPOSITION TO PLAINTIFFS’
FCA US LLC, a Delaware Limited Liability MOTION FOR ATTORNEYS’ FEES
20
Company; and DOES 1 through 10,
21 inclusive, [Filed Concurrently with Plaintiffs’ Reply,
Declarations of Richard M. Wirtz and Steve
22 Defendants. Mikhov in Support of Reply, and Plaintiffs’
23 evidentiary objections]
24 Date: May 27, 2020
25 Time: 9:00 a.m.
Dept.: 1
26 Judge: Tamara L. Mosbarger
27
28
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 Objection No. 1: Mikhov Decl., ¶ 4-5:
2 FCA US objects to the entirety of these paragraph on the grounds set forth immediately
3 below.
4 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
5 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
6 (Evid. Code §§ 210, 350).
7 Plaintiffs’ Response to Objection No. 1:
8 Paragraphs 4-5 are a simply a summary of the facts alleged and proven in this case
9 regarding Plaintiffs’ trouble with the vehicle. Having reviewed the documentation, the declarant
10 is able to provide this summary, not to prove the matter asserted, but to provide the Court with
11 context for this motion.
12
13 _________ Sustained __________ Overruled
14 Objection No. 2: Mikhov Decl., ¶ 6:
15 FCA US objects to the entirety of this paragraph, and its subparts, on the
16 grounds set forth immediately below.
17 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
18 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
19 (Evid. Code §§ 210, 350).
20 Plaintiffs’ Response to Objection No. 2:
21 Paragraphs 6 is simply a summary of the facts alleged and proven in this case regarding
22 Plaintiffs’ trouble with the vehicle. Having reviewed the documentation, the declarant is able to
23 provide this summary, not to prove the matter asserted, but to provide the Court with context for
24 this motion.
25
26 _________ Sustained __________ Overruled
27 Objection No. 3: Mikhov Decl., ¶ 7-9:
FCA US objects to the entirety of each paragraph on the grounds set forth immediately
28
below.
1
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
2 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
3 (Evid. Code §§ 210, 350).
4 Plaintiffs’ Response to Objection No. 3:
5 Paragraphs 7-9 are a simply a summary of the facts alleged and proven in this case
6 regarding Plaintiffs’ trouble with the vehicle. Having reviewed the documentation, the declarant
7 is able to provide this summary, not to prove the matter asserted, but to provide the Court with
8 context for this motion.
9
10 _________ Sustained __________ Overruled
11 Objection No. 4: Mikhov Decl., ¶ 41-42:
12 FCA US objects to the entirety of each paragraph on the grounds set forth immediately
13 below.
14 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
15 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
16 (Evid. Code §§ 210, 350).
17 Plaintiffs’ Response to Objection No. 4:
18 These paragraphs are regarding Knight Law’s billing practices and Mr. Mihov has
19 personal knowledge thereof as the Managing Partner of Knight Law Group.
20
21 _________ Sustained __________ Overruled
22 Objection No. 5: Mikhov Decl., ¶ 43 and its subparts:
23 FCA US objects to the entirety of the paragraph on the grounds set forth immediately
24 below.
25 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
26 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
27 (Evid. Code §§ 210, 350).
28 Plaintiffs’ Response to Objection No. 5:
2
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 Mr. Mikhov has personal knowledge of the rates of other attorneys in the field. In
2 addition, he has verified these rates via the survey referenced, which lays an adequate foundation.
3 This paragraph and its subparts do not quote any statements made out of court and so is not
4 hearsay. As for relevance, “Affidavits of the Plaintiffs’ attorney and other attorneys regarding
5 prevailing fees in the community, and rate determinations in other cases, particularly those setting
6 a rate for the Plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.’” (United
7 Steelworkers of Am. v. Phelps Dodge Corp. (1990) 896 F.2d 403, 407.)
8
9 _________ Sustained __________ Overruled
10 Objection No. 6: Mikhov Decl., ¶ 44-60 and their attachments:
11 FCA US objects to the entirety of each paragraph, and the documents attached as exhibits,
12 on the grounds set forth immediately below.
13 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
14 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
15 (Evid. Code §§ 210, 350).
16 Plaintiffs’ Response to Objection No. 6:
17 Mr. Mikhov was counsel of record on all of these cases and has personal knowledge of
18 the orders and can authenticate the orders. As for relevance, the United States Supreme Court
19 agrees with Plaintiffs stating “awards in similar cases” is one of twelve possible factors to
20 consider when determining an appropriate hourly rate. (Hensley v. Eckerhart (1983) 461 U.S.
21 424, 429-430.) “Affidavits of the Plaintiffs’ attorney and other attorneys regarding prevailing
22 fees in the community, and rate determinations in other cases, particularly those setting a rate for
23 the Plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.’” (United
24 Steelworkers of Am. v. Phelps Dodge Corp. (1990) 896 F.2d 403, 407.)
25
26 _________ Sustained __________ Overruled
27 Objection No. 7: Mikhov Decl., ¶ 61:
28 FCA US objects to the entirety of the paragraph on the grounds set forth immediately
3
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 below.
2 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
3 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
4 (Evid. Code §§ 210, 350).
5 Plaintiffs’ Response to Objection No. 7:
6 Mr. Mikhov has personal knowledge of the contingent nature of his agreement with
7 Plaintiffs and of the likelihood of repeat business from Plaintiffs. This paragraph does not include
8 any out of court statements and so is not hearsay. The contingent nature of the arrangement is
9 relevant to the analysis of whether a multiplier is appropriate under Ketchum v. Moses (2001) 24
10 Cal.4th 1122, 1132. This paragraph is also based on Mr. Mikhov’s extensive research and
11 experience in this area of law. He has personal knowledge based on his experience.
12
13 _________ Sustained __________ Overruled
14 Objection No. 8: Mikhov Decl., ¶ 62:
15 FCA US objects to the entirety of the paragraph on the grounds set forth immediately
16 below.
17 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
18 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
19 (Evid. Code §§ 210, 350).
20 Plaintiffs’ Response to Objection No. 8:
21 This paragraph is based on Mr. Mikhov’s extensive research and experience in this area
22 of law. He has personal knowledge based on his experience. This is not hearsay as it does not
23 quote any out of court statements. It is relevant to the reasonableness of the fees incurred here.
24
25 _________ Sustained __________ Overruled
26 Objection No. 9: Mikhov Decl., ¶ 63:
27 FCA US objects to the entirety of the paragraph on the grounds set forth immediately
28 below.
4
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
2 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
3 (Evid. Code §§ 210, 350).
4 Plaintiffs’ Response to Objection No. 9:
5 This paragraph is based on Mr. Mikhov’s extensive research and experience in this area
6 of law. He has personal knowledge based on his experience. This is not hearsay as it does not
7 quote any out of court statements. It is relevant to the reasonableness of the fees incurred here.
8
9 _________ Sustained __________ Overruled
10 Objection No. 10: Mikhov Decl., ¶ 64:
11 FCA US objects to the entirety of the paragraph on the grounds set forth immediately
12 below.
13 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
14 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
15 (Evid. Code §§ 210, 350).
16 Plaintiffs’ Response to Objection No. 10:
17 Mr. Mikhov has personal knowledge of the time savings which results from the
18 experience of his firm, of which he is the managing partner. This is not hearsay as it does not
19 quote any out of court statements. It is relevant to the reasonableness of the fees incurred here.
20
21 _________ Sustained __________ Overruled
22 Objection No. 11: Mikhov Decl., ¶ 65:
23 FCA US objects to the entirety of the paragraph on the grounds set forth immediately
24 below.
25 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
26 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
27 (Evid. Code §§ 210, 350).
28 Plaintiffs’ Response to Objection No. 11:
5
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 Mr. Mikhov, as counsel of record, has personal knowledge of FCA’s denial of liability
2 and of its settlement offers, and of the fees incurred as a result of that denial and refusal to submit
3 reasonable settlement offers. This is not hearsay as it does not quote any out of court statements.
4 It is relevant to the reasonableness of the fees incurred here.
5
6 _________ Sustained __________ Overruled
7 Objection No. 12: Mikhov Decl., ¶ 66:
8 FCA US objects to the entirety of the paragraph on the grounds set forth
9 immediately below.
10 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
11 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
12 (Evid. Code §§ 210, 350).
13 Plaintiffs’ Response to Objection No. 12:
14 Mr. Mikhov, as counsel of record, has personal knowledge of FCA’s denial of liability
15 and of its settlement offers, and of the fees incurred as a result of that denial and refusal to submit
16 reasonable settlement offers. This is not hearsay as it does not quote any out of court statements.
17 It is relevant to the reasonableness of the fees incurred here.
18
19 _________ Sustained __________ Overruled
20 Objection No. 13: Wirtz Decl., ¶ 5-9:
21 FCA US objects to the entirety of each paragraph on the grounds set forth
22 immediately below.
23 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
24 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
25 (Evid. Code §§ 210, 350).
26 Plaintiffs’ Response to Objection No. 13:
27 Paragraphs 5-9 are regarding the qualifications and billing rates of Mr. Wirtz’s associates.
28 They are not hearsay because they do not state statements made out of Court. The billing itself
6
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 is subject to the business records exception to the hearsay rule. As the managing partner of the
2 firm and the one who sets the billing rates, he of course has personal knowledge of those rates
3 and of the amount of time each person has worked for his firm (and their titles). As the person
4 who hired these attorneys and legal support staff members, he also has knowledge of their
5 qualifications. Because this is a motion for reasonable attorney’s fees, the qualifications of the
6 attorney’s performing the work and their regular hourly rate is clearly relevant.
7
8 _________ Sustained __________ Overruled
9 Objection No. 14: Wirtz Decl., ¶ 11, and its attachment:
10 FCA US objects to the entirety of the paragraph and the documents attached as an
11 exhibit on the grounds set forth immediately below.
12 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
13 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
14 (Evid. Code §§ 210, 350).
15 Plaintiffs’ Response to Objection No. 14:
16 Mr. Wirtz has personal knowledge of the materials he considered in setting his hourly
17 rate. This is relevant to the reasonableness of the rates. This is not hearsay as it does not quote
18 any out of court statements. The Survey attached are intended to prove what Mr. Wirtz
19 considered in setting his rates and the rates of his employees. It is not offered to prove the truth
20 of the matter asserted. As such, it is not hearsay.
21 FCA’s arguments regarding the methodology of the survey go to the weight of the
22 evidence, not its admissibility. Plaintiffs included that portion of the survey which explain the
23 methodology. The survey is offered not just for the truth of the data therein but also as evidence
24 of what Wirtz Law considered in setting its hourly rates. The fact is, no matter what evidence
25 Plaintiffs submit FCA will object and claim it is inadmissible. But the hourly rates are unrebutted
26 by any evidence by FCA and it is an abuse of discretion to reduce rates where the declarations
27 are unrebutted. (Graciano, supra, 144 Cal.App.4th at 156.)
28
7
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 _________ Sustained __________ Overruled
2 Objection No. 15: Wirtz Decl., ¶ 21-26:
3 FCA US objects to these paragraph[s] on the grounds that they appear related to a
4 different case, and are therefore irrelevant.
5 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
6 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
7 (Evid. Code §§ 210, 350).
8 Plaintiffs’ Response to Objection No. 14:
9 FCA is correct, these paragraphs are from a different case. The Court may disregard them.
10
11 _________ Sustained __________ Overruled
12 Objection No. 16: Wirtz Decl., ¶ 27, its subparts, and the attachments:
13 FCA US objects to the entirety of each paragraph, and the documents attached as exhibits,
14 on the grounds set forth immediately below.
15 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
16 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
17 (Evid. Code §§ 210, 350).
18 Plaintiffs’ Response to Objection No. 16:
19 Mr. Wirtz was counsel of record on all of these cases and has personal knowledge of the
20 orders and can authenticate the orders. As for relevance, the United States Supreme Court agrees
21 with Plaintiffs stating “awards in similar cases” is one of twelve possible factors to consider when
22 determining an appropriate hourly rate. (Hensley v. Eckerhart (1983) 461 U.S. 424, 429-430.)
23 “Affidavits of the Plaintiffs’ attorney and other attorneys regarding prevailing fees in the
24 community, and rate determinations in other cases, particularly those setting a rate for the
25 Plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.’” (United
26 Steelworkers of Am. v. Phelps Dodge Corp. (1990) 896 F.2d 403, 407.)
27
28 _________ Sustained __________ Overruled
8
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
1 Objection No. 17: Wirtz Decl., ¶ 28:
2 FCA US objects to the entirety of the paragraph on the grounds set forth
3 immediately below.
4 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a));
5 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance
6 (Evid. Code §§ 210, 350).
7 Plaintiffs’ Response to Objection No. 28:
8 Mr. Wirtz has personal knowledge of the rates of his co-counsel and of the information
9 he used in setting his own rate. These rates are relevant to the reasonableness of Wirtz Law’s
10 rates in the community.
11
12 _________ Sustained __________ Overruled
13
Dated: May 19, 2020 KNIGHT LAW GROUP, LLP
14
15
16 Steve Mikhov (SBN 224676)
Richard Wirtz (SBN 137812)
17
Attorneys for Plaintiffs,
18 MELISSA A. WILLIAMS and
GEOFFREY G. WILLIAMS
19
20
21
22
23
24
25
26
27
28
9
PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS
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1 KNIGHT LAW GROUP, LLP Steve Mikhov (SBN 224676) 2 5/19/2020 10250 Constellation Blvd, Suite 2500 3 Los Angeles, CA 90067 Telephone: (310) 552-2250 4 Fax: (323) 939-7973 5 WIRTZ LAW APC Richard M. Wirtz (SBN 137812) 6 rwirtz@wirtzlaw.com Amy R. Rotman (SBN 286128) 7 arotman@wirtzlaw.com 8 Jessica R. Underwood (SBN 306481) junderwood@wirtzlaw.com 9 4370 La Jolla Village Drive, Suite 800 San Diego, California 92122 10 Telephone: (858) 259-5009 11 Attorneys for Plaintiffs, 12 MELISSA A. WILLIAMS and GEOFFREY G. WILLIAMS 13 14 SUPERIOR COURT OF CALIFORNIA 15 COUNTY OF BUTTE 16 MELISSA A. WILLIAMS and GEOFFREY Case No.: 17CV02617 17 G. WILLIAMS, PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS TO 18 Plaintiffs, DECLARATIONS OF STEVE MIKHOV vs. AND RICHARD M. WIRTZ IN 19 OPPOSITION TO PLAINTIFFS’ FCA US LLC, a Delaware Limited Liability MOTION FOR ATTORNEYS’ FEES 20 Company; and DOES 1 through 10, 21 inclusive, [Filed Concurrently with Plaintiffs’ Reply, Declarations of Richard M. Wirtz and Steve 22 Defendants. Mikhov in Support of Reply, and Plaintiffs’ 23 evidentiary objections] 24 Date: May 27, 2020 25 Time: 9:00 a.m. Dept.: 1 26 Judge: Tamara L. Mosbarger 27 28 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 Objection No. 1: Mikhov Decl., ¶ 4-5: 2 FCA US objects to the entirety of these paragraph on the grounds set forth immediately 3 below. 4 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 5 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 6 (Evid. Code §§ 210, 350). 7 Plaintiffs’ Response to Objection No. 1: 8 Paragraphs 4-5 are a simply a summary of the facts alleged and proven in this case 9 regarding Plaintiffs’ trouble with the vehicle. Having reviewed the documentation, the declarant 10 is able to provide this summary, not to prove the matter asserted, but to provide the Court with 11 context for this motion. 12 13 _________ Sustained __________ Overruled 14 Objection No. 2: Mikhov Decl., ¶ 6: 15 FCA US objects to the entirety of this paragraph, and its subparts, on the 16 grounds set forth immediately below. 17 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 18 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 19 (Evid. Code §§ 210, 350). 20 Plaintiffs’ Response to Objection No. 2: 21 Paragraphs 6 is simply a summary of the facts alleged and proven in this case regarding 22 Plaintiffs’ trouble with the vehicle. Having reviewed the documentation, the declarant is able to 23 provide this summary, not to prove the matter asserted, but to provide the Court with context for 24 this motion. 25 26 _________ Sustained __________ Overruled 27 Objection No. 3: Mikhov Decl., ¶ 7-9: FCA US objects to the entirety of each paragraph on the grounds set forth immediately 28 below. 1 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 2 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 3 (Evid. Code §§ 210, 350). 4 Plaintiffs’ Response to Objection No. 3: 5 Paragraphs 7-9 are a simply a summary of the facts alleged and proven in this case 6 regarding Plaintiffs’ trouble with the vehicle. Having reviewed the documentation, the declarant 7 is able to provide this summary, not to prove the matter asserted, but to provide the Court with 8 context for this motion. 9 10 _________ Sustained __________ Overruled 11 Objection No. 4: Mikhov Decl., ¶ 41-42: 12 FCA US objects to the entirety of each paragraph on the grounds set forth immediately 13 below. 14 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 15 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 16 (Evid. Code §§ 210, 350). 17 Plaintiffs’ Response to Objection No. 4: 18 These paragraphs are regarding Knight Law’s billing practices and Mr. Mihov has 19 personal knowledge thereof as the Managing Partner of Knight Law Group. 20 21 _________ Sustained __________ Overruled 22 Objection No. 5: Mikhov Decl., ¶ 43 and its subparts: 23 FCA US objects to the entirety of the paragraph on the grounds set forth immediately 24 below. 25 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 26 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 27 (Evid. Code §§ 210, 350). 28 Plaintiffs’ Response to Objection No. 5: 2 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 Mr. Mikhov has personal knowledge of the rates of other attorneys in the field. In 2 addition, he has verified these rates via the survey referenced, which lays an adequate foundation. 3 This paragraph and its subparts do not quote any statements made out of court and so is not 4 hearsay. As for relevance, “Affidavits of the Plaintiffs’ attorney and other attorneys regarding 5 prevailing fees in the community, and rate determinations in other cases, particularly those setting 6 a rate for the Plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.’” (United 7 Steelworkers of Am. v. Phelps Dodge Corp. (1990) 896 F.2d 403, 407.) 8 9 _________ Sustained __________ Overruled 10 Objection No. 6: Mikhov Decl., ¶ 44-60 and their attachments: 11 FCA US objects to the entirety of each paragraph, and the documents attached as exhibits, 12 on the grounds set forth immediately below. 13 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 14 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 15 (Evid. Code §§ 210, 350). 16 Plaintiffs’ Response to Objection No. 6: 17 Mr. Mikhov was counsel of record on all of these cases and has personal knowledge of 18 the orders and can authenticate the orders. As for relevance, the United States Supreme Court 19 agrees with Plaintiffs stating “awards in similar cases” is one of twelve possible factors to 20 consider when determining an appropriate hourly rate. (Hensley v. Eckerhart (1983) 461 U.S. 21 424, 429-430.) “Affidavits of the Plaintiffs’ attorney and other attorneys regarding prevailing 22 fees in the community, and rate determinations in other cases, particularly those setting a rate for 23 the Plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.’” (United 24 Steelworkers of Am. v. Phelps Dodge Corp. (1990) 896 F.2d 403, 407.) 25 26 _________ Sustained __________ Overruled 27 Objection No. 7: Mikhov Decl., ¶ 61: 28 FCA US objects to the entirety of the paragraph on the grounds set forth immediately 3 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 below. 2 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 3 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 4 (Evid. Code §§ 210, 350). 5 Plaintiffs’ Response to Objection No. 7: 6 Mr. Mikhov has personal knowledge of the contingent nature of his agreement with 7 Plaintiffs and of the likelihood of repeat business from Plaintiffs. This paragraph does not include 8 any out of court statements and so is not hearsay. The contingent nature of the arrangement is 9 relevant to the analysis of whether a multiplier is appropriate under Ketchum v. Moses (2001) 24 10 Cal.4th 1122, 1132. This paragraph is also based on Mr. Mikhov’s extensive research and 11 experience in this area of law. He has personal knowledge based on his experience. 12 13 _________ Sustained __________ Overruled 14 Objection No. 8: Mikhov Decl., ¶ 62: 15 FCA US objects to the entirety of the paragraph on the grounds set forth immediately 16 below. 17 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 18 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 19 (Evid. Code §§ 210, 350). 20 Plaintiffs’ Response to Objection No. 8: 21 This paragraph is based on Mr. Mikhov’s extensive research and experience in this area 22 of law. He has personal knowledge based on his experience. This is not hearsay as it does not 23 quote any out of court statements. It is relevant to the reasonableness of the fees incurred here. 24 25 _________ Sustained __________ Overruled 26 Objection No. 9: Mikhov Decl., ¶ 63: 27 FCA US objects to the entirety of the paragraph on the grounds set forth immediately 28 below. 4 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 2 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 3 (Evid. Code §§ 210, 350). 4 Plaintiffs’ Response to Objection No. 9: 5 This paragraph is based on Mr. Mikhov’s extensive research and experience in this area 6 of law. He has personal knowledge based on his experience. This is not hearsay as it does not 7 quote any out of court statements. It is relevant to the reasonableness of the fees incurred here. 8 9 _________ Sustained __________ Overruled 10 Objection No. 10: Mikhov Decl., ¶ 64: 11 FCA US objects to the entirety of the paragraph on the grounds set forth immediately 12 below. 13 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 14 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 15 (Evid. Code §§ 210, 350). 16 Plaintiffs’ Response to Objection No. 10: 17 Mr. Mikhov has personal knowledge of the time savings which results from the 18 experience of his firm, of which he is the managing partner. This is not hearsay as it does not 19 quote any out of court statements. It is relevant to the reasonableness of the fees incurred here. 20 21 _________ Sustained __________ Overruled 22 Objection No. 11: Mikhov Decl., ¶ 65: 23 FCA US objects to the entirety of the paragraph on the grounds set forth immediately 24 below. 25 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 26 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 27 (Evid. Code §§ 210, 350). 28 Plaintiffs’ Response to Objection No. 11: 5 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 Mr. Mikhov, as counsel of record, has personal knowledge of FCA’s denial of liability 2 and of its settlement offers, and of the fees incurred as a result of that denial and refusal to submit 3 reasonable settlement offers. This is not hearsay as it does not quote any out of court statements. 4 It is relevant to the reasonableness of the fees incurred here. 5 6 _________ Sustained __________ Overruled 7 Objection No. 12: Mikhov Decl., ¶ 66: 8 FCA US objects to the entirety of the paragraph on the grounds set forth 9 immediately below. 10 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 11 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 12 (Evid. Code §§ 210, 350). 13 Plaintiffs’ Response to Objection No. 12: 14 Mr. Mikhov, as counsel of record, has personal knowledge of FCA’s denial of liability 15 and of its settlement offers, and of the fees incurred as a result of that denial and refusal to submit 16 reasonable settlement offers. This is not hearsay as it does not quote any out of court statements. 17 It is relevant to the reasonableness of the fees incurred here. 18 19 _________ Sustained __________ Overruled 20 Objection No. 13: Wirtz Decl., ¶ 5-9: 21 FCA US objects to the entirety of each paragraph on the grounds set forth 22 immediately below. 23 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 24 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 25 (Evid. Code §§ 210, 350). 26 Plaintiffs’ Response to Objection No. 13: 27 Paragraphs 5-9 are regarding the qualifications and billing rates of Mr. Wirtz’s associates. 28 They are not hearsay because they do not state statements made out of Court. The billing itself 6 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 is subject to the business records exception to the hearsay rule. As the managing partner of the 2 firm and the one who sets the billing rates, he of course has personal knowledge of those rates 3 and of the amount of time each person has worked for his firm (and their titles). As the person 4 who hired these attorneys and legal support staff members, he also has knowledge of their 5 qualifications. Because this is a motion for reasonable attorney’s fees, the qualifications of the 6 attorney’s performing the work and their regular hourly rate is clearly relevant. 7 8 _________ Sustained __________ Overruled 9 Objection No. 14: Wirtz Decl., ¶ 11, and its attachment: 10 FCA US objects to the entirety of the paragraph and the documents attached as an 11 exhibit on the grounds set forth immediately below. 12 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 13 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 14 (Evid. Code §§ 210, 350). 15 Plaintiffs’ Response to Objection No. 14: 16 Mr. Wirtz has personal knowledge of the materials he considered in setting his hourly 17 rate. This is relevant to the reasonableness of the rates. This is not hearsay as it does not quote 18 any out of court statements. The Survey attached are intended to prove what Mr. Wirtz 19 considered in setting his rates and the rates of his employees. It is not offered to prove the truth 20 of the matter asserted. As such, it is not hearsay. 21 FCA’s arguments regarding the methodology of the survey go to the weight of the 22 evidence, not its admissibility. Plaintiffs included that portion of the survey which explain the 23 methodology. The survey is offered not just for the truth of the data therein but also as evidence 24 of what Wirtz Law considered in setting its hourly rates. The fact is, no matter what evidence 25 Plaintiffs submit FCA will object and claim it is inadmissible. But the hourly rates are unrebutted 26 by any evidence by FCA and it is an abuse of discretion to reduce rates where the declarations 27 are unrebutted. (Graciano, supra, 144 Cal.App.4th at 156.) 28 7 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 _________ Sustained __________ Overruled 2 Objection No. 15: Wirtz Decl., ¶ 21-26: 3 FCA US objects to these paragraph[s] on the grounds that they appear related to a 4 different case, and are therefore irrelevant. 5 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 6 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 7 (Evid. Code §§ 210, 350). 8 Plaintiffs’ Response to Objection No. 14: 9 FCA is correct, these paragraphs are from a different case. The Court may disregard them. 10 11 _________ Sustained __________ Overruled 12 Objection No. 16: Wirtz Decl., ¶ 27, its subparts, and the attachments: 13 FCA US objects to the entirety of each paragraph, and the documents attached as exhibits, 14 on the grounds set forth immediately below. 15 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 16 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 17 (Evid. Code §§ 210, 350). 18 Plaintiffs’ Response to Objection No. 16: 19 Mr. Wirtz was counsel of record on all of these cases and has personal knowledge of the 20 orders and can authenticate the orders. As for relevance, the United States Supreme Court agrees 21 with Plaintiffs stating “awards in similar cases” is one of twelve possible factors to consider when 22 determining an appropriate hourly rate. (Hensley v. Eckerhart (1983) 461 U.S. 424, 429-430.) 23 “Affidavits of the Plaintiffs’ attorney and other attorneys regarding prevailing fees in the 24 community, and rate determinations in other cases, particularly those setting a rate for the 25 Plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.’” (United 26 Steelworkers of Am. v. Phelps Dodge Corp. (1990) 896 F.2d 403, 407.) 27 28 _________ Sustained __________ Overruled 8 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS 1 Objection No. 17: Wirtz Decl., ¶ 28: 2 FCA US objects to the entirety of the paragraph on the grounds set forth 3 immediately below. 4 Grounds for Objection: Lack of personal knowledge (Evid. Code §§ 403(1)(2), 702(a)); 5 Lacks foundation (Evid. Code §§ 403, 1400 et. seq.); Hearsay (Evid. Code § 1200.); Relevance 6 (Evid. Code §§ 210, 350). 7 Plaintiffs’ Response to Objection No. 28: 8 Mr. Wirtz has personal knowledge of the rates of his co-counsel and of the information 9 he used in setting his own rate. These rates are relevant to the reasonableness of Wirtz Law’s 10 rates in the community. 11 12 _________ Sustained __________ Overruled 13 Dated: May 19, 2020 KNIGHT LAW GROUP, LLP 14 15 16 Steve Mikhov (SBN 224676) Richard Wirtz (SBN 137812) 17 Attorneys for Plaintiffs, 18 MELISSA A. WILLIAMS and GEOFFREY G. WILLIAMS 19 20 21 22 23 24 25 26 27 28 9 PLAINTIFFS’ RESPONSE TO EVIDENTIARY OBJECTIONS