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1 M. Christine Davi, City Attorney (178389)
Karin Krattli Salameh, Ass’t City Attorney (252034)
2 MONTEREY CITY ATTORNEY’S OFFICE
City Hall – 580 Pacific Street
3 Monterey, CA 93940
Telephone: (831) 646-3915
4 Facsimile: (831) 373-1634
E-mail: Davi@Monterey.org
5 Salameh@Monterey.org
6 William R. Price (171531)
LAW OFFICES OF WILLIAM R. PRICE
7 12636 High Bluff Dr., Suite 400
San Diego, CA 92130
8 Tel: (858) 888-0588
Email: WPrice@williamrprice.com
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Attorneys for Defendant CITY OF MONTEREY
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11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF MONTEREY
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DISCOVERY CHARTERS, INC., CASE NO: 19CV004935
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Plaintiff, REPLY MEMORANDUM OF POINTS &
15 AUTHORITIES IN SUPPORT OF
v. MOTION FOR ATTORNEYS’ FEES
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CITY OF MONTEREY; and DOES 1-50,
17 inclusive, HEARING INFORMATION
Date: January 21, 2022
18 Defendants. Time: 8:30 a.m.
Department: 15
19 Location: 1200 Aguajito Road
Monterey, CA 93940
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CASE INFORMATION
21 Trial Date: September 27, 2021
Trial Time: 9:00 a.m.
22 Department: 15
Presiding: Hon. Thomas W. Wills
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INTRODUCTION
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The attorney fees claimed by the City of Monterey are reasonable and should be
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awarded. Plaintiff’s general objection that the City’s litigation efforts, trial preparations,
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and trial presentation were unnecessary and duplicative is without merit. To the contrary,
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the City’s attorneys were effective at every stage of this case because of their preparation
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MEMORANDUM OF POINTS & AUTHORITIES Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 and attention to detail. With diligent effort, they reduced Plaintiff’s initial complaint to one
2 cause of action, investigated and organized 40+ years of commercial history at the Wharf
3 to defeat Plaintiff’s singular reliance on the “key map”, deposed witnesses with effective
4 cross-examinations used at trial, and properly prepared witnesses and evidence for trial.
5 At trial, the efforts and preparation of the City’s attorneys paid off. As a result of effective
6 professional teamwork, the City won at trial on every witness, every significant issue,
7 and, ultimately, judgment.
8 Plaintiff attempted to bully the City with the financial threat of this multi-million
9 dollar lawsuit. Despite actual and constructive knowledge of the lack of merit of its claim,
10 Plaintiff initiated and stubbornly persisted through trial. Plaintiff lost. The Statement of
11 Decision is an unqualified win for the City and vindicates the truth of its pre-lawsuit
12 communications to Plaintiff. Judgment is entered for the City and the City is already
13 adjudged the prevailing party. The opposition to this motion is without merit. The City is
14 entitled to attorney fees as costs under the contract.
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16 DISCUSSION
17 I. PLAINTIFF’S OPPOSITION IS UNTIMELY
18 All papers opposing a noticed motion shall be filed with the court and a copy
19 served on each party at least nine court days before the hearing. Code Civ. Proc. § 1005
20 (b). Plaintiff’s opposition was filed on January 10, 2022, only eight court days before the
21 January 21, 2022 hearing. The opposition is untimely and the Court has discretion not to
22 consider it. (Id.)
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24 II. THE CITY WAS THE PREVAILING PARTY
25 Plaintiff’s Opposition urges the Court to exercise its discretion to conclude there
26 was some sort of “tie” in this case and that neither party should be determined the
27 prevailing party. (Opp’n, pp. 1-2.) Plaintiff’s position is without merit, and rests entirely
28 on the false premise that Plaintiff pleaded an action for declaratory relief and that the
MEMORANDUM OF POINTS & AUTHORITIES -1- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 Court ruled in Plaintiff’s favor on a declaratory relief claim. That never happened. The
2 Court’s Statement of Decision and Judgment unequivocally establish that the City is the
3 prevailing party.
4 A. Plaintiff Abandoned Its Declaratory Relief Claim
5 As set forth in the moving papers, Plaintiff filed its original complaint against the
6 City on December 6, 2019. (RJN, no. 1, Ex. A (“Register of Actions”), p. 1; RJN, no. 2,
7 Ex. B (“Complaint”), p. 1.) The Complaint contained multiple causes of action including
8 breach of contract, declaratory and injunctive relief, all based on Plaintiff’s contractual
9 interpretation of the Lease. Plaintiff filed its First Amended Complaint on March 12, 2020,
10 pleading only breach of contract and inverse condemnation. (RJN, no. 3, Ex. C (“First
11 Amended Complaint” or “FAC”), p. 1.) By its own intent and design, Plaintiff abandoned
12 its declaratory relief claim and pursued a single cause of action for breach of contract.
13 B. Plaintiff Pursued and Lost Its Breach of Contract Claim
14 The object of Plaintiff’s sole remaining claim was to prove that it had a possessory
15 interest in 100’ of pier space such that the City breached the lease and Plaintiff was
16 entitled to contract damages (including legal fees) when the City denied Plaintiff’s
17 demand to berth a 91’ vessel. Plaintiff’s claim was thoroughly torpedoed at trial. The
18 City convincingly established that Concession 19 was no longer than 75’ based on the
19 decades-long course of conduct between the parties. Moreover, the City demonstrated
20 that Plaintiff had actual and constructive knowledge of this fact. Indeed, this was
21 precisely what City property managers Rick Marvin and Janna Aldrete informed Plaintiff
22 before Plaintiff filed its unmeritorious lawsuit.
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24 C. Plaintiff Did Not Add or Prevail on a Declaratory Relief Claim
25 Sensing that it was not prevailing on the breach of contract claim, Plaintiff took the
26 Court’s pre-ruling comments that the course of conduct indicated that Concession 19 was
27 75’ and attempted to argue that 75’ was some sort of victory (despite having always
28 sought 100’ feet along the finger pier). Toward that end, Plaintiff attempted to argue that
MEMORANDUM OF POINTS & AUTHORITIES -2- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 one of the many factoids referenced in the City’s Trial Brief should be construed as a
2 contractual repudiation that Concession 19 was no more than 60’ in length. Plaintiff
3 never attempted to amend its pleadings prior to resting its case and waited until the
4 November 12, 2021 hearing on the Closing Briefs, when the Court’s ruling in favor of the
5 City was clear, to orally request an amendment. The City properly objected.
6 D. The Court Did Not Rule in Plaintiff’s Favor on Any Claim
7 The Statement of Decision is entirely in the City’s favor. The Statement of
8 Decision does not acknowledge, much less grant, Plaintiff’s belated and unmeritorious
9 oral request to add a declaratory relief action. The Statement of Decision explains the
10 Court’s reasoning and findings that Concession 19 is 75’ based on the conduct of the
11 parties but does not award, or purport to award, declaratory relief.
12 The Statement of Decision unequivocally concludes there was no breach of
13 contract. (RJN, no. 7, Ex. G, Statement of Decision, pp. 1-4.) The Statement of
14 Decision also rejected Plaintiff’s late-contrived theory of anticipatory repudiation.
15 There was no testimony or evidence of a request to berth a boat longer than 60
feet, but less than 75 feet, that was refused by the City at any time. Plaintiff also
16 has no basis to recover damages because it did not plead or present any evidence
that it was ready, willing, and able to perform with a new vessel that would fit
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within the 75 foot space of Concession 19. Accordingly, the Court concludes that
18 there was no repudiation/anticipatory breach of the lease by the City.
19 (Statement of Decision, p. 5.)
20 E. The Court’s Judgment Establishes the City is the Prevailing Party
21 On December 6, 2021, the court entered the final judgment, incorporating its
22 Statement of Decision, and providing:
23 [J]udgment is hereby entered in favor of Defendant City of Monterey and against
Plaintiff Discovery Charters, Inc. Plaintiff shall recover nothing from Defendant,
24 and Defendant is adjudged the prevailing party. Costs, including attorney fees,
shall be determined in accordance with California Code of Civil Procedure section
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1032, et seq., Civil Code section 1717, and California Rules of Court Rule 3.1700.
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(RJN, no. 8, Ex. H, Judgment) (Emphasis added.)
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MEMORANDUM OF POINTS & AUTHORITIES -3- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 The Court has already entered judgment that the City is the prevailing party. This
2 is a costs and fees motion and not the time for Plaintiff to challenge the Judgment.
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4 III. THE REQUESTED FEES ARE REASONABLE
5 Plaintiff argues a trial court may rely on its own experience and knowledge is
6 determining the reasonable value of attorney services. (Opp’n, p. 2.) The City agrees.
7 William Price:
8 Plaintiff broadly argues that William Price’s fees are unreasonable and
9 “duplicative” of prior counsel because he substituted in as lead trial counsel. Plaintiff
10 argues, "[a] losing party in a lawsuit should not be responsible for expenses
11 unnecessarily incurred by reason of his adversary's need or desire to hire a new
12 attorney." Hadley v. Krepel (1985) 167 Cal. App. 3d 677, 683. The Hadley case,
13 however, reversed a trial court’s reduction of attorney fees and observed:
14 [New counsel] was retained just two months before trial; thus, it was necessary for
15 him to give considerable attention to the case in order to be adequately prepared.
16 Of the 80 hours he and his associate expended on the matter, almost 35 hours
17 were devoted to trial preparation, drafting the trial brief, trailing and attendance at
18 trial. This time alone accounted for more than $4,000 in fees. Although defendant
19 changed attorneys midstream due to no fault of plaintiffs, it is reasonable to infer
20 another attorney would have spent at least this much time in performing the same
21 services. And we presume defendant would have incurred additional fees had it
22 been necessary for him to see the trial to completion.
23 (Hadley, 167 Cal.App.3d at 686 [trial court erred in reducing attorney fee award.].)
24 Moreover, unlike Hadley, the City changed attorneys due to circumstances beyond
25 its control. On this point, Plaintiff’s Opposition misrepresents events in the litigation. The
26 correct facts are as follows:
27 The case was originally set for trial on June 7, 2021. However, on June 4, 2021,
28 the Court, sua sponte, continued the trial to August 2, 2021. Deputy City Attorney Donlon
MEMORANDUM OF POINTS & AUTHORITIES -4- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 was prepared to try the case in June 2021, but separated from the City prior to the
2 August trial date. The Court’s continuance of the trial date is no fault of the City and can
3 happen in any litigation matter.
4 When the Court continued the case, such that Mr. Donlon would not be available
5 to try it, the City took reasonable action to retain familiar and qualified counsel capable of
6 trying the case on relatively short notice. Mr. Price was formally retained prior to the
7 August 2, 2021 trial date and the Court granted the City’s motion to continue trial to
8 September 27, 2021 to allow a reasonable time to prepare.
9 Mr. Price spent reasonable time preparing the case for trial. Plaintiff fails to
10 identify any activity that was not reasonably necessary for a trial lawyer to prepare and
11 present the case. Plaintiff merely complains that any work done by Mr. Price was
12 “duplicative” of Mr. Donlon’s preparations. The assumptions that Mr. Donlon and Mr.
13 Price prepare the same way, or that Mr. Donlon was “done” and would not have
14 continued to prepare, should not be indulged. Plaintiff’s blanket complaint that Mr. Price
15 reviewed evidence and met with trial witnesses and the City’s supervising attorneys is
16 particularly misplaced. Every good trial lawyer continues to review evidence and meet
17 with witnesses before trial and during trial to prepare them to testify. Every prepared and
18 ethical attorney continues to meet and confer with his client, and supervising counsel for
19 his client, at every opportunity. Plaintiff’s suggestion that Mr. Donlon, if he had still been
20 in the case, would not have continued to review evidence, meet with witnesses, and
21 confer with his supervising attorneys at every available opportunity is unreasonable
22 conjecture. “It is the burden of the challenging party to point to the specific items
23 challenged, with a sufficient argument and citations to the evidence. General arguments
24 that fees claimed are excessive, duplicative, or unrelated do not suffice.” Premier
25 Medical Management Sys., Inc. v. California Ins. Guarantee Assn. (2008) 163
26 Cal.App.4th 550, 564. Accordingly, Plaintiff has not met its burden and no reduction
27 should be made for unspecified “duplication”.
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MEMORANDUM OF POINTS & AUTHORITIES -5- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 Excessive conferences: Plaintiff argues that Mr. Price’s conferences with co-
2 counsel and the City Attorney, totaling less than 2.5 hours over four months, is excessive.
3 By any definition, that is underbilled and efficient, not excessive.
4 Clerical work: Minimal attorney supervision of major clerical tasks is routine and
5 reasonable. It would be one thing to claim dozens of hours standing at a copier or hole-
6 punching documents. It is quite another to claim a small amount of time to coordinate the
7 proper and court-required formatting of hundreds of exhibits and other trial materials.
8 Plaintiff references an $839.00 exhibit copying charge, which appears on the invoices.
9 That charge is not included in the claimed attorney fees, but is shown on the invoices
10 because it supports the City’s Memorandum of Costs. Other, non-recoverable costs, are
11 redacted from the invoices.
12 Redactions: The City properly redacted minimal portions of Mr. Price’s invoices
13 containing attorney-client and work product privileged material. There is nothing about
14 the redactions that obscures the general purpose of the work or would cause Plaintiff or
15 the Court to conclude the work was not appropriate or necessary to the case.
16 Travel time: Plaintiff acknowledges the City is entitled to its choice of counsel but
17 complains the City could or should have retained local counsel. (Opp’n, p. 6.) Plaintiff
18 provides no authority for a fee reduction on this basis. Most civil litigators practice
19 beyond their home city. Attorney time spent to set up a trial “war room” of some sort,
20 even within a home city, is typical in many cases. Attorney time to gather case materials
21 is routine. Attorney time to load in and out of court is routine. There is no basis to
22 conclude this time is unreasonable and Plaintiff’s claim is without support.
23 Excessive or Inflated Charges: Plaintiff’s Opposition concludes with an
24 unsubstantiated assertion that the time defense counsel spent on the closing briefs,
25 statement of decision, and judgment were excessive. (Opp’n, p. 9.) Yet, it was Plaintiff’s
26 counsel who pleaded for closing briefs when the Court had already indicated its decision,
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MEMORANDUM OF POINTS & AUTHORITIES -6- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 and the City was prepared to close with oral arguments on the last day of trial. 1 Defense
2 counsel was obliged to respond to, and refute, Plaintiff’s factually and legally inaccurate
3 brief. In particular, defense counsel had to unravel Plaintiff’s misrepresentations of the
4 trial evidence and last ditch attempts to reposition the case by introducing new theories of
5 contract repudiation, which had not previously been briefed in this case. After prevailing
6 at the hearing following closing briefing, defense counsel was tasked by the Court with
7 preparing the Statement of Decision and Judgment. The fact that these important
8 documents were prepared by the collective defense team with precision and care should
9 not surprise. The Court adopted and entered both with no changes.
10 Mr. Price’s claimed time, rate, and total fees are reasonable and no reduction
11 should be made.
12 Ryan Donlon:
13 Plaintiff objects to “block billing”. However, it is well established that "block billing
14 is not objectionable per se...." Jaramillo v. County of Orange (2011) 200 Cal.App.4th
15 811, 830. Generally, block billing presents challenges to the court in cases with multiple
16 causes of action where there is a need to separate out work that qualifies for
17 compensation and work that does not. Id. However, Jaramillo recognized that where
18 "...there was no need to separate out covered from uncovered work..." it was reasonable
19 to accept block billed entries. Id. Block billed or not, all of Mr. Donlon’s time was spent
20 defeating Plaintiff’s contract claims.
21 Plaintiff also objects to “round numbers”. While this Court has discretion in
22 considering the evidence of fees submitted by Mr. Donlon, there is no prohibition against
23 round numbers and Mr. Donlon submitted under penalty of perjury that this was the
24 minimum time spent on each task.
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As it was, trial went an extra day because Plaintiff’s counsel deliberately stalled
27 through (final witness) Janna Aldrete’s examination so he could attempt to come up with
something for cross-examination the next day. That tactic yielded no fruit and cost
28 everyone time and money.
MEMORANDUM OF POINTS & AUTHORITIES -7- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 Plaintiff finally claims that Mr. Donlon’s fees are “excessive”. Plaintiff argues there
2 should be reduction because only a portion of the City’s trial exhibits were used. This
3 ignores that Mr. Donlon prepared the City’s exhibits for a variety of contingencies and trial
4 counsel relied on exhibits introduced by Plaintiff rather than similar City exhibits. Plaintiff
5 complains that Mr. Donlon claims 55 hours to prepare for and take depositions that
6 Plaintiff calculates took a total of 19.5 hours (erroneously summed as 17 hours in
7 Plaintiff’s brief). The ratio of preparation is hardly excessive in complex litigation which
8 required counsel to study and organize 40+ years of documents and communications.
9 Mr. Donlon’s claimed time, rate, and total fees are reasonable and no reduction
10 should be made.
11 Karin Krattli Salameh:
12 Ms. Salameh is the Assistant City Attorney and served as co-counsel before and
13 throughout trial. She is, always has been, an integral party of the legal defense team. At
14 all times, she had responsibility to collaborate with and supervise Deputy City Attorney
15 Donlon and outside counsel. Plaintiff’s wild speculation, “it is clear the reason Ms.
16 Salameh participated in the trial was due to Mr. Donlon’s departure” is false and insulting.
17 Excessive: Plaintiff’s complaint that the City appeared ex parte to request a
18 continuance after the Court sua sponte continued the original trial date is without merit
19 and unsupported by any authority. Plaintiff’s objection regarding 10.5 hours spent on
20 expert witness preparation and examination is specious. It is absolutely false that the two
21 expert witnesses “agreed” such that “cross-examination was unnecessary”. (Opp’n. p. 8.)
22 As Ms. Salameh’s cross-examination revealed, Plaintiff’s expert was unlicensed,
23 relatively inexperienced, was directed by Plaintiff’s counsel to not take a variety of
24 measurements (such as length of other known concessions or width of spaces), and
25 used a bizarre method of matching up hand-drawn tick marks on an unscaled map to
26 create the “scale” that informed his opinions. Ms. Salameh’s direct examination of
27 defense expert Thomas Hannah revealed a licensed, well-qualified, and knowledgeable
28 surveyor who testified authoritatively that no competent or qualified surveyor would ever
MEMORANDUM OF POINTS & AUTHORITIES -8- Discovery Charters, Inc. v. City of Monterey
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1 attempt to use a hand-drawn, not-to-scale key map for the purposes used by Plaintiff’s
2 expert and that attempting to do so leads to demonstrably absurd results.
3 Duplicative: Plaintiff’s Opposition leans heavily on the false premise that every
4 aspect of litigation (including trial) can and should be handled by one attorney.
5 Throughout, Plaintiff generally argues that any joint or collaborative work is unreasonably
6 “duplicative”. Plaintiff offers no authority for that principle.
7 While it may be true that Mr. Price is an “experienced trial attorney”, the notion that
8 Mr. Price could have or should have done it all by himself is absurd. Good trial attorneys
9 often work in teams: developing strategy, comparing views on evidence and witnesses,
10 revising and refining each other’s written work, practicing examinations, roleplaying for
11 witnesses, assigning discrete tasks to most-qualified team members, and more. There
12 was nothing unusual in a multi-million dollar case against the City that an attorney from
13 the City Attorney’s Office would be assigned throughout trial preparations and trial. Ms.
14 Salameh’s contributions inside and outside the courtroom were reasonable, necessary,
15 and valuable. Indeed, if she were not assigned and taking on significant tasks, there is
16 no doubt that Mr. Price’s hours and billings would have necessarily and significantly
17 increased. (See, Price Decl., ¶¶ 6-11.)
18 Excessive and duplicative: Plaintiff complains that Ms. Salameh’s time spent on
19 the statement of decision, judgment, and this motion for attorney fees is duplicative and
20 excessive because Mr. Price also worked on those items. (Opp’n, p. 9.) As above,
21 there is nothing surprising about inside and outside counsel collaborating on these
22 important pleadings. Collaboration also resulted in more accurate and effective product.
23 (See, Price Decl., ¶¶ 6-11.)
24 Mr. Salameh’s claimed time, rate, and total fees are reasonable and no reduction
25 should be made.
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27 Christine Davi:
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MEMORANDUM OF POINTS & AUTHORITIES -9- Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 Plaintiff’s Opposition makes similar general objections, without any authority, to all
2 the time submitted by City Attorney Davi. (Opp’n, p. 9.) Ms. Davi’s total time claimed on
3 this multi-million dollar case, litigated for more than two years, is 54 hours, i.e., less than
4 a week and a half. On its face, that is reasonable.
5 Plaintiff appears possessed of an insulting view that the City Attorney is some sort
6 of political figurehead that does not practice law and does not contribute to the legal
7 product of the City. That is untrue. As set forth in the moving papers and declarations,
8 Ms. Davi has been a licensed attorney since 1995, has worked in municipal and civil
9 litigation her entire career, and has specific experience litigating real property and lease
10 disputes for the City. (Decl. Davi, ¶¶ 1, 2 and 4.) To put it bluntly, Ms. Davi has more
11 professional experience on these issues than any of the attorneys who touched this case.
12 Ms. Davi has been involved with this matter since its inception and is ultimately
13 responsible for the strategy, recommendations, and communications with City Council
14 and City executives. (Decl. Davi, ¶ 7.) Ms. Davi is also responsible for supervising in-
15 house and outside counsel. (Decl. Davi, ¶¶ 7-12.) In order to reasonably fulfill any of
16 those functions, Ms. Davi was required to review pleadings, discovery, litigation plans,
17 and case reports. (Decl. Davi, ¶¶ 1, 2 and 4.) As a prudent City Attorney, Ms. Davi
18 periodically met and conferred with staff counsel, outside counsel, and key witnesses.
19 This was particularly necessary after the Court continued the trial and Mr. Donlon
20 separated. (Decl. Davi, ¶¶ 8-12.) Ms. Davi is an experienced, astute, and collaborative
21 City Attorney. (See, Price Decl., ¶¶ 6-11.) Ms. Davi was integral to the successful
22 strategy and implementation of the defense through trial of this case. (Id.)
23 Mr. Davi’s claimed time, rate, and total fees are reasonable and no reduction
24 should be made.
25 CONCLUSION
26 The City respectfully moves for an award of all its reasonably incurred legal
27 expenses.
28 Dated: January 13, 2022 LAW OFFICES OF WILLIAM R. PRICE
MEMORANDUM OF POINTS & AUTHORITIES - 10 - Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
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William R. Price
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4 Attorneys for CITY OF MONTEREY
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MEMORANDUM OF POINTS & AUTHORITIES - 11 - Discovery Charters, Inc. v. City of Monterey
Case Number 19CV004935
1 PROOF OF SERVICE
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I, Natalie Kent, declare: I am a citizen of the United States and employed in San
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Diego County, California. I am over the age of eighteen years and not a party to the within-
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entitled action. My business address is 12636 High Bluff Dr., Suite 400, San Diego, CA 92130.
6 On January 13, 2022, I served a copy of the within document(s):
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REPLY MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF
9 MOTION FOR ATTORNEY’S FEES
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by transmitting via my electronic service address (NKent@williamrprice.com) the
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document(s) listed above to the person(s) at the e-mail address(es) set forth below.
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Attorneys for Plaintiff
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Michael Masuda
15 Christine G. Kemp
Anthony Castillon-Mendoza
16 NOLAND, HAMERLY, ETIENNE & HOSSA
Professional Corporation 333 Salinas Street
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Post Office Box 2510 Salinas, California 93902-2510
18 Telephone: (831) 424-1414
Facsimile: (831) 424-1975
19 mmasuda@nheh.com; acmendoza@nheh.com; ckemp@nhen.com
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I declare under penalty of perjury under the laws of the State of California that the above is
22 true and correct.
23 Executed on January 13, 2022, at San Diego, California.
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26 Natalie Kent
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PROOF OF SERVICE
REPLY MEMO IN SUPPORT OF MOTION FOR ATTORNEY’S FEES
DISCOVERY CHARTERS, INC. V. CITY OF MONTEREY CASE NUMBER 19CV004935
Preview
1 M. Christine Davi, City Attorney (178389) Karin Krattli Salameh, Ass’t City Attorney (252034) 2 MONTEREY CITY ATTORNEY’S OFFICE City Hall – 580 Pacific Street 3 Monterey, CA 93940 Telephone: (831) 646-3915 4 Facsimile: (831) 373-1634 E-mail: Davi@Monterey.org 5 Salameh@Monterey.org 6 William R. Price (171531) LAW OFFICES OF WILLIAM R. PRICE 7 12636 High Bluff Dr., Suite 400 San Diego, CA 92130 8 Tel: (858) 888-0588 Email: WPrice@williamrprice.com 9 Attorneys for Defendant CITY OF MONTEREY 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF MONTEREY 13 DISCOVERY CHARTERS, INC., CASE NO: 19CV004935 14 Plaintiff, REPLY MEMORANDUM OF POINTS & 15 AUTHORITIES IN SUPPORT OF v. MOTION FOR ATTORNEYS’ FEES 16 CITY OF MONTEREY; and DOES 1-50, 17 inclusive, HEARING INFORMATION Date: January 21, 2022 18 Defendants. Time: 8:30 a.m. Department: 15 19 Location: 1200 Aguajito Road Monterey, CA 93940 20 CASE INFORMATION 21 Trial Date: September 27, 2021 Trial Time: 9:00 a.m. 22 Department: 15 Presiding: Hon. Thomas W. Wills 23 INTRODUCTION 24 The attorney fees claimed by the City of Monterey are reasonable and should be 25 awarded. Plaintiff’s general objection that the City’s litigation efforts, trial preparations, 26 and trial presentation were unnecessary and duplicative is without merit. To the contrary, 27 the City’s attorneys were effective at every stage of this case because of their preparation 28 MEMORANDUM OF POINTS & AUTHORITIES Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 and attention to detail. With diligent effort, they reduced Plaintiff’s initial complaint to one 2 cause of action, investigated and organized 40+ years of commercial history at the Wharf 3 to defeat Plaintiff’s singular reliance on the “key map”, deposed witnesses with effective 4 cross-examinations used at trial, and properly prepared witnesses and evidence for trial. 5 At trial, the efforts and preparation of the City’s attorneys paid off. As a result of effective 6 professional teamwork, the City won at trial on every witness, every significant issue, 7 and, ultimately, judgment. 8 Plaintiff attempted to bully the City with the financial threat of this multi-million 9 dollar lawsuit. Despite actual and constructive knowledge of the lack of merit of its claim, 10 Plaintiff initiated and stubbornly persisted through trial. Plaintiff lost. The Statement of 11 Decision is an unqualified win for the City and vindicates the truth of its pre-lawsuit 12 communications to Plaintiff. Judgment is entered for the City and the City is already 13 adjudged the prevailing party. The opposition to this motion is without merit. The City is 14 entitled to attorney fees as costs under the contract. 15 16 DISCUSSION 17 I. PLAINTIFF’S OPPOSITION IS UNTIMELY 18 All papers opposing a noticed motion shall be filed with the court and a copy 19 served on each party at least nine court days before the hearing. Code Civ. Proc. § 1005 20 (b). Plaintiff’s opposition was filed on January 10, 2022, only eight court days before the 21 January 21, 2022 hearing. The opposition is untimely and the Court has discretion not to 22 consider it. (Id.) 23 24 II. THE CITY WAS THE PREVAILING PARTY 25 Plaintiff’s Opposition urges the Court to exercise its discretion to conclude there 26 was some sort of “tie” in this case and that neither party should be determined the 27 prevailing party. (Opp’n, pp. 1-2.) Plaintiff’s position is without merit, and rests entirely 28 on the false premise that Plaintiff pleaded an action for declaratory relief and that the MEMORANDUM OF POINTS & AUTHORITIES -1- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 Court ruled in Plaintiff’s favor on a declaratory relief claim. That never happened. The 2 Court’s Statement of Decision and Judgment unequivocally establish that the City is the 3 prevailing party. 4 A. Plaintiff Abandoned Its Declaratory Relief Claim 5 As set forth in the moving papers, Plaintiff filed its original complaint against the 6 City on December 6, 2019. (RJN, no. 1, Ex. A (“Register of Actions”), p. 1; RJN, no. 2, 7 Ex. B (“Complaint”), p. 1.) The Complaint contained multiple causes of action including 8 breach of contract, declaratory and injunctive relief, all based on Plaintiff’s contractual 9 interpretation of the Lease. Plaintiff filed its First Amended Complaint on March 12, 2020, 10 pleading only breach of contract and inverse condemnation. (RJN, no. 3, Ex. C (“First 11 Amended Complaint” or “FAC”), p. 1.) By its own intent and design, Plaintiff abandoned 12 its declaratory relief claim and pursued a single cause of action for breach of contract. 13 B. Plaintiff Pursued and Lost Its Breach of Contract Claim 14 The object of Plaintiff’s sole remaining claim was to prove that it had a possessory 15 interest in 100’ of pier space such that the City breached the lease and Plaintiff was 16 entitled to contract damages (including legal fees) when the City denied Plaintiff’s 17 demand to berth a 91’ vessel. Plaintiff’s claim was thoroughly torpedoed at trial. The 18 City convincingly established that Concession 19 was no longer than 75’ based on the 19 decades-long course of conduct between the parties. Moreover, the City demonstrated 20 that Plaintiff had actual and constructive knowledge of this fact. Indeed, this was 21 precisely what City property managers Rick Marvin and Janna Aldrete informed Plaintiff 22 before Plaintiff filed its unmeritorious lawsuit. 23 24 C. Plaintiff Did Not Add or Prevail on a Declaratory Relief Claim 25 Sensing that it was not prevailing on the breach of contract claim, Plaintiff took the 26 Court’s pre-ruling comments that the course of conduct indicated that Concession 19 was 27 75’ and attempted to argue that 75’ was some sort of victory (despite having always 28 sought 100’ feet along the finger pier). Toward that end, Plaintiff attempted to argue that MEMORANDUM OF POINTS & AUTHORITIES -2- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 one of the many factoids referenced in the City’s Trial Brief should be construed as a 2 contractual repudiation that Concession 19 was no more than 60’ in length. Plaintiff 3 never attempted to amend its pleadings prior to resting its case and waited until the 4 November 12, 2021 hearing on the Closing Briefs, when the Court’s ruling in favor of the 5 City was clear, to orally request an amendment. The City properly objected. 6 D. The Court Did Not Rule in Plaintiff’s Favor on Any Claim 7 The Statement of Decision is entirely in the City’s favor. The Statement of 8 Decision does not acknowledge, much less grant, Plaintiff’s belated and unmeritorious 9 oral request to add a declaratory relief action. The Statement of Decision explains the 10 Court’s reasoning and findings that Concession 19 is 75’ based on the conduct of the 11 parties but does not award, or purport to award, declaratory relief. 12 The Statement of Decision unequivocally concludes there was no breach of 13 contract. (RJN, no. 7, Ex. G, Statement of Decision, pp. 1-4.) The Statement of 14 Decision also rejected Plaintiff’s late-contrived theory of anticipatory repudiation. 15 There was no testimony or evidence of a request to berth a boat longer than 60 feet, but less than 75 feet, that was refused by the City at any time. Plaintiff also 16 has no basis to recover damages because it did not plead or present any evidence that it was ready, willing, and able to perform with a new vessel that would fit 17 within the 75 foot space of Concession 19. Accordingly, the Court concludes that 18 there was no repudiation/anticipatory breach of the lease by the City. 19 (Statement of Decision, p. 5.) 20 E. The Court’s Judgment Establishes the City is the Prevailing Party 21 On December 6, 2021, the court entered the final judgment, incorporating its 22 Statement of Decision, and providing: 23 [J]udgment is hereby entered in favor of Defendant City of Monterey and against Plaintiff Discovery Charters, Inc. Plaintiff shall recover nothing from Defendant, 24 and Defendant is adjudged the prevailing party. Costs, including attorney fees, shall be determined in accordance with California Code of Civil Procedure section 25 1032, et seq., Civil Code section 1717, and California Rules of Court Rule 3.1700. 26 (RJN, no. 8, Ex. H, Judgment) (Emphasis added.) 27 28 MEMORANDUM OF POINTS & AUTHORITIES -3- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 The Court has already entered judgment that the City is the prevailing party. This 2 is a costs and fees motion and not the time for Plaintiff to challenge the Judgment. 3 4 III. THE REQUESTED FEES ARE REASONABLE 5 Plaintiff argues a trial court may rely on its own experience and knowledge is 6 determining the reasonable value of attorney services. (Opp’n, p. 2.) The City agrees. 7 William Price: 8 Plaintiff broadly argues that William Price’s fees are unreasonable and 9 “duplicative” of prior counsel because he substituted in as lead trial counsel. Plaintiff 10 argues, "[a] losing party in a lawsuit should not be responsible for expenses 11 unnecessarily incurred by reason of his adversary's need or desire to hire a new 12 attorney." Hadley v. Krepel (1985) 167 Cal. App. 3d 677, 683. The Hadley case, 13 however, reversed a trial court’s reduction of attorney fees and observed: 14 [New counsel] was retained just two months before trial; thus, it was necessary for 15 him to give considerable attention to the case in order to be adequately prepared. 16 Of the 80 hours he and his associate expended on the matter, almost 35 hours 17 were devoted to trial preparation, drafting the trial brief, trailing and attendance at 18 trial. This time alone accounted for more than $4,000 in fees. Although defendant 19 changed attorneys midstream due to no fault of plaintiffs, it is reasonable to infer 20 another attorney would have spent at least this much time in performing the same 21 services. And we presume defendant would have incurred additional fees had it 22 been necessary for him to see the trial to completion. 23 (Hadley, 167 Cal.App.3d at 686 [trial court erred in reducing attorney fee award.].) 24 Moreover, unlike Hadley, the City changed attorneys due to circumstances beyond 25 its control. On this point, Plaintiff’s Opposition misrepresents events in the litigation. The 26 correct facts are as follows: 27 The case was originally set for trial on June 7, 2021. However, on June 4, 2021, 28 the Court, sua sponte, continued the trial to August 2, 2021. Deputy City Attorney Donlon MEMORANDUM OF POINTS & AUTHORITIES -4- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 was prepared to try the case in June 2021, but separated from the City prior to the 2 August trial date. The Court’s continuance of the trial date is no fault of the City and can 3 happen in any litigation matter. 4 When the Court continued the case, such that Mr. Donlon would not be available 5 to try it, the City took reasonable action to retain familiar and qualified counsel capable of 6 trying the case on relatively short notice. Mr. Price was formally retained prior to the 7 August 2, 2021 trial date and the Court granted the City’s motion to continue trial to 8 September 27, 2021 to allow a reasonable time to prepare. 9 Mr. Price spent reasonable time preparing the case for trial. Plaintiff fails to 10 identify any activity that was not reasonably necessary for a trial lawyer to prepare and 11 present the case. Plaintiff merely complains that any work done by Mr. Price was 12 “duplicative” of Mr. Donlon’s preparations. The assumptions that Mr. Donlon and Mr. 13 Price prepare the same way, or that Mr. Donlon was “done” and would not have 14 continued to prepare, should not be indulged. Plaintiff’s blanket complaint that Mr. Price 15 reviewed evidence and met with trial witnesses and the City’s supervising attorneys is 16 particularly misplaced. Every good trial lawyer continues to review evidence and meet 17 with witnesses before trial and during trial to prepare them to testify. Every prepared and 18 ethical attorney continues to meet and confer with his client, and supervising counsel for 19 his client, at every opportunity. Plaintiff’s suggestion that Mr. Donlon, if he had still been 20 in the case, would not have continued to review evidence, meet with witnesses, and 21 confer with his supervising attorneys at every available opportunity is unreasonable 22 conjecture. “It is the burden of the challenging party to point to the specific items 23 challenged, with a sufficient argument and citations to the evidence. General arguments 24 that fees claimed are excessive, duplicative, or unrelated do not suffice.” Premier 25 Medical Management Sys., Inc. v. California Ins. Guarantee Assn. (2008) 163 26 Cal.App.4th 550, 564. Accordingly, Plaintiff has not met its burden and no reduction 27 should be made for unspecified “duplication”. 28 MEMORANDUM OF POINTS & AUTHORITIES -5- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 Excessive conferences: Plaintiff argues that Mr. Price’s conferences with co- 2 counsel and the City Attorney, totaling less than 2.5 hours over four months, is excessive. 3 By any definition, that is underbilled and efficient, not excessive. 4 Clerical work: Minimal attorney supervision of major clerical tasks is routine and 5 reasonable. It would be one thing to claim dozens of hours standing at a copier or hole- 6 punching documents. It is quite another to claim a small amount of time to coordinate the 7 proper and court-required formatting of hundreds of exhibits and other trial materials. 8 Plaintiff references an $839.00 exhibit copying charge, which appears on the invoices. 9 That charge is not included in the claimed attorney fees, but is shown on the invoices 10 because it supports the City’s Memorandum of Costs. Other, non-recoverable costs, are 11 redacted from the invoices. 12 Redactions: The City properly redacted minimal portions of Mr. Price’s invoices 13 containing attorney-client and work product privileged material. There is nothing about 14 the redactions that obscures the general purpose of the work or would cause Plaintiff or 15 the Court to conclude the work was not appropriate or necessary to the case. 16 Travel time: Plaintiff acknowledges the City is entitled to its choice of counsel but 17 complains the City could or should have retained local counsel. (Opp’n, p. 6.) Plaintiff 18 provides no authority for a fee reduction on this basis. Most civil litigators practice 19 beyond their home city. Attorney time spent to set up a trial “war room” of some sort, 20 even within a home city, is typical in many cases. Attorney time to gather case materials 21 is routine. Attorney time to load in and out of court is routine. There is no basis to 22 conclude this time is unreasonable and Plaintiff’s claim is without support. 23 Excessive or Inflated Charges: Plaintiff’s Opposition concludes with an 24 unsubstantiated assertion that the time defense counsel spent on the closing briefs, 25 statement of decision, and judgment were excessive. (Opp’n, p. 9.) Yet, it was Plaintiff’s 26 counsel who pleaded for closing briefs when the Court had already indicated its decision, 27 28 MEMORANDUM OF POINTS & AUTHORITIES -6- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 and the City was prepared to close with oral arguments on the last day of trial. 1 Defense 2 counsel was obliged to respond to, and refute, Plaintiff’s factually and legally inaccurate 3 brief. In particular, defense counsel had to unravel Plaintiff’s misrepresentations of the 4 trial evidence and last ditch attempts to reposition the case by introducing new theories of 5 contract repudiation, which had not previously been briefed in this case. After prevailing 6 at the hearing following closing briefing, defense counsel was tasked by the Court with 7 preparing the Statement of Decision and Judgment. The fact that these important 8 documents were prepared by the collective defense team with precision and care should 9 not surprise. The Court adopted and entered both with no changes. 10 Mr. Price’s claimed time, rate, and total fees are reasonable and no reduction 11 should be made. 12 Ryan Donlon: 13 Plaintiff objects to “block billing”. However, it is well established that "block billing 14 is not objectionable per se...." Jaramillo v. County of Orange (2011) 200 Cal.App.4th 15 811, 830. Generally, block billing presents challenges to the court in cases with multiple 16 causes of action where there is a need to separate out work that qualifies for 17 compensation and work that does not. Id. However, Jaramillo recognized that where 18 "...there was no need to separate out covered from uncovered work..." it was reasonable 19 to accept block billed entries. Id. Block billed or not, all of Mr. Donlon’s time was spent 20 defeating Plaintiff’s contract claims. 21 Plaintiff also objects to “round numbers”. While this Court has discretion in 22 considering the evidence of fees submitted by Mr. Donlon, there is no prohibition against 23 round numbers and Mr. Donlon submitted under penalty of perjury that this was the 24 minimum time spent on each task. 25 26 1 As it was, trial went an extra day because Plaintiff’s counsel deliberately stalled 27 through (final witness) Janna Aldrete’s examination so he could attempt to come up with something for cross-examination the next day. That tactic yielded no fruit and cost 28 everyone time and money. MEMORANDUM OF POINTS & AUTHORITIES -7- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 Plaintiff finally claims that Mr. Donlon’s fees are “excessive”. Plaintiff argues there 2 should be reduction because only a portion of the City’s trial exhibits were used. This 3 ignores that Mr. Donlon prepared the City’s exhibits for a variety of contingencies and trial 4 counsel relied on exhibits introduced by Plaintiff rather than similar City exhibits. Plaintiff 5 complains that Mr. Donlon claims 55 hours to prepare for and take depositions that 6 Plaintiff calculates took a total of 19.5 hours (erroneously summed as 17 hours in 7 Plaintiff’s brief). The ratio of preparation is hardly excessive in complex litigation which 8 required counsel to study and organize 40+ years of documents and communications. 9 Mr. Donlon’s claimed time, rate, and total fees are reasonable and no reduction 10 should be made. 11 Karin Krattli Salameh: 12 Ms. Salameh is the Assistant City Attorney and served as co-counsel before and 13 throughout trial. She is, always has been, an integral party of the legal defense team. At 14 all times, she had responsibility to collaborate with and supervise Deputy City Attorney 15 Donlon and outside counsel. Plaintiff’s wild speculation, “it is clear the reason Ms. 16 Salameh participated in the trial was due to Mr. Donlon’s departure” is false and insulting. 17 Excessive: Plaintiff’s complaint that the City appeared ex parte to request a 18 continuance after the Court sua sponte continued the original trial date is without merit 19 and unsupported by any authority. Plaintiff’s objection regarding 10.5 hours spent on 20 expert witness preparation and examination is specious. It is absolutely false that the two 21 expert witnesses “agreed” such that “cross-examination was unnecessary”. (Opp’n. p. 8.) 22 As Ms. Salameh’s cross-examination revealed, Plaintiff’s expert was unlicensed, 23 relatively inexperienced, was directed by Plaintiff’s counsel to not take a variety of 24 measurements (such as length of other known concessions or width of spaces), and 25 used a bizarre method of matching up hand-drawn tick marks on an unscaled map to 26 create the “scale” that informed his opinions. Ms. Salameh’s direct examination of 27 defense expert Thomas Hannah revealed a licensed, well-qualified, and knowledgeable 28 surveyor who testified authoritatively that no competent or qualified surveyor would ever MEMORANDUM OF POINTS & AUTHORITIES -8- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 attempt to use a hand-drawn, not-to-scale key map for the purposes used by Plaintiff’s 2 expert and that attempting to do so leads to demonstrably absurd results. 3 Duplicative: Plaintiff’s Opposition leans heavily on the false premise that every 4 aspect of litigation (including trial) can and should be handled by one attorney. 5 Throughout, Plaintiff generally argues that any joint or collaborative work is unreasonably 6 “duplicative”. Plaintiff offers no authority for that principle. 7 While it may be true that Mr. Price is an “experienced trial attorney”, the notion that 8 Mr. Price could have or should have done it all by himself is absurd. Good trial attorneys 9 often work in teams: developing strategy, comparing views on evidence and witnesses, 10 revising and refining each other’s written work, practicing examinations, roleplaying for 11 witnesses, assigning discrete tasks to most-qualified team members, and more. There 12 was nothing unusual in a multi-million dollar case against the City that an attorney from 13 the City Attorney’s Office would be assigned throughout trial preparations and trial. Ms. 14 Salameh’s contributions inside and outside the courtroom were reasonable, necessary, 15 and valuable. Indeed, if she were not assigned and taking on significant tasks, there is 16 no doubt that Mr. Price’s hours and billings would have necessarily and significantly 17 increased. (See, Price Decl., ¶¶ 6-11.) 18 Excessive and duplicative: Plaintiff complains that Ms. Salameh’s time spent on 19 the statement of decision, judgment, and this motion for attorney fees is duplicative and 20 excessive because Mr. Price also worked on those items. (Opp’n, p. 9.) As above, 21 there is nothing surprising about inside and outside counsel collaborating on these 22 important pleadings. Collaboration also resulted in more accurate and effective product. 23 (See, Price Decl., ¶¶ 6-11.) 24 Mr. Salameh’s claimed time, rate, and total fees are reasonable and no reduction 25 should be made. 26 27 Christine Davi: 28 MEMORANDUM OF POINTS & AUTHORITIES -9- Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 Plaintiff’s Opposition makes similar general objections, without any authority, to all 2 the time submitted by City Attorney Davi. (Opp’n, p. 9.) Ms. Davi’s total time claimed on 3 this multi-million dollar case, litigated for more than two years, is 54 hours, i.e., less than 4 a week and a half. On its face, that is reasonable. 5 Plaintiff appears possessed of an insulting view that the City Attorney is some sort 6 of political figurehead that does not practice law and does not contribute to the legal 7 product of the City. That is untrue. As set forth in the moving papers and declarations, 8 Ms. Davi has been a licensed attorney since 1995, has worked in municipal and civil 9 litigation her entire career, and has specific experience litigating real property and lease 10 disputes for the City. (Decl. Davi, ¶¶ 1, 2 and 4.) To put it bluntly, Ms. Davi has more 11 professional experience on these issues than any of the attorneys who touched this case. 12 Ms. Davi has been involved with this matter since its inception and is ultimately 13 responsible for the strategy, recommendations, and communications with City Council 14 and City executives. (Decl. Davi, ¶ 7.) Ms. Davi is also responsible for supervising in- 15 house and outside counsel. (Decl. Davi, ¶¶ 7-12.) In order to reasonably fulfill any of 16 those functions, Ms. Davi was required to review pleadings, discovery, litigation plans, 17 and case reports. (Decl. Davi, ¶¶ 1, 2 and 4.) As a prudent City Attorney, Ms. Davi 18 periodically met and conferred with staff counsel, outside counsel, and key witnesses. 19 This was particularly necessary after the Court continued the trial and Mr. Donlon 20 separated. (Decl. Davi, ¶¶ 8-12.) Ms. Davi is an experienced, astute, and collaborative 21 City Attorney. (See, Price Decl., ¶¶ 6-11.) Ms. Davi was integral to the successful 22 strategy and implementation of the defense through trial of this case. (Id.) 23 Mr. Davi’s claimed time, rate, and total fees are reasonable and no reduction 24 should be made. 25 CONCLUSION 26 The City respectfully moves for an award of all its reasonably incurred legal 27 expenses. 28 Dated: January 13, 2022 LAW OFFICES OF WILLIAM R. PRICE MEMORANDUM OF POINTS & AUTHORITIES - 10 - Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 2 By /s/ William R. Price William R. Price 3 4 Attorneys for CITY OF MONTEREY 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS & AUTHORITIES - 11 - Discovery Charters, Inc. v. City of Monterey Case Number 19CV004935 1 PROOF OF SERVICE 2 3 I, Natalie Kent, declare: I am a citizen of the United States and employed in San 4 Diego County, California. I am over the age of eighteen years and not a party to the within- 5 entitled action. My business address is 12636 High Bluff Dr., Suite 400, San Diego, CA 92130. 6 On January 13, 2022, I served a copy of the within document(s): 7 8 REPLY MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF 9 MOTION FOR ATTORNEY’S FEES 10 11 by transmitting via my electronic service address (NKent@williamrprice.com) the 12 document(s) listed above to the person(s) at the e-mail address(es) set forth below. 13 Attorneys for Plaintiff 14 Michael Masuda 15 Christine G. Kemp Anthony Castillon-Mendoza 16 NOLAND, HAMERLY, ETIENNE & HOSSA Professional Corporation 333 Salinas Street 17 Post Office Box 2510 Salinas, California 93902-2510 18 Telephone: (831) 424-1414 Facsimile: (831) 424-1975 19 mmasuda@nheh.com; acmendoza@nheh.com; ckemp@nhen.com 20 21 I declare under penalty of perjury under the laws of the State of California that the above is 22 true and correct. 23 Executed on January 13, 2022, at San Diego, California. 24 25 26 Natalie Kent 27 28 PROOF OF SERVICE REPLY MEMO IN SUPPORT OF MOTION FOR ATTORNEY’S FEES DISCOVERY CHARTERS, INC. V. CITY OF MONTEREY CASE NUMBER 19CV004935