Preview
Kyle
Law
Corporation
STEPHAN E. KYLE (SBN 158075)
ANDREW H. WINETROUB (SBN 291847)
KYLE LAW CORPORATION ELECTRONICALLY
350 California Street, 22nd Floor FILED
San Francisco, CA 94104 ‘Superior Court of California,
Telephone: (415) 839-8100 County of San Francisco
Facsimile: _ (415) 839-8189 04/04/2017
Email: skyle@kylelawcorp.com clerk oF ie |Court
Attorneys for Plaintiffs ee
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.,
CASE NO. CGC-11-514980
Plaintiffs,
COURT OF APPEAL CASE NO. A140096
Vv.
MEMORANDUM OF POINTS AND
DEAN GREGORY ASIMOS, dba DRAKE AUTHORITIES IN SUPPORT OF
REALTY, MOTION FOR ATTORNEYS’ FEES ON
APPEAL
Defendant.
DATE: MAY 3, 2017
TIME: 9:30 A.M.
AND RELATED CROSS-ACTION. DEPT.: 302
RESERVATION NO.: 04030503-22
I. INTRODUCTION
Pursuant to California Civil Code § 1717, California Code of Civil Procedure § 1033.5, and|
the contract between the parties, Plaintiff Jason Everett Thompson (“Thompson”) is entitled to an
award of his attorneys’ fees on appeal following the entry of the decision of the California Court of|
Appeal and the issuance of the remittitur in this matter against Defendant Dean Gregory Asimos|
(“Asimos”). Plaintiff Thompson seeks attorneys’ fees incurred in the amount of $83,235.00.
Il. FACTUAL AND PROCEDURAL BACKGROUND
The contract between Thompson and Asimos states that in the event of any litigation between
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES
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CGC-11-5149801 || the parties the losing party will be liable for the winning party’s attorneys’ fees. Specifically,
2 || paragraph 17 of the agreement provides:
In any action, proceeding, or arbitration between Broker [Asimos] and
4 Associate-Licensee [Thompson] arising from or related to this
Agreement, the prevailing Broker or Associate-Licensee shall be
5 entitled to reasonable attorney fees and costs.
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Kyle Decl. { 13, Ex. A.
Trial in this action commenced on October 9, 2012 and resulted in a judgment in favor of
Thompson, wherein he was awarded $311,100.00 in Astound-transaction damages, $250.00 for
9 || Asimos’ service mark infringement, prejudgment interest on the Astound-transaction damages in the
10 |) amount of $138,688.00, and attorneys’ fees pursuant to noticed motion. Kyle Decl. { 14, Ex. B.
i Asimos filed an appeal in the California Court of Appeal of the judgment entered against him.
Kyle Decl. 4 15, Ex. C. Following the filing of the parties’ briefs, motions, and oral argument, the
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Court of Appeal rendered its decision on December 15, 2016. Kyle Decl. J 16, Ex. D. In its decision,
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1s the Court of Appeal remanded the case, among other reasons, to recalculate the damages, including
16 prejudgment interest, awarded to Thompson, but otherwise affirmed the judgment and permanent
17 || injunction entered in his favor. Id. Remittitur was issued on February 22, 2017, thereby restoring
18 || this Court’s jurisdiction over the matter. Kyle Decl. { 17, Ex. E.
19 1. LEGAL ARGUMENT
20 || A. The California Code and Parties’ Contract Authorizes Award of Attorneys’ Fees
21 California Civil Code § 1717(a) provides the conditions under which attorneys’ fees are
22 recoverable under contract:
23
In any action on a contract, where the contract specifically provides that
24 attorney’s fees and costs, which are incurred to enforce that contract,
shall be awarded either to one of the parties or to the prevailing party,
25 then the party who is determined to be the party prevailing on the
26 contract, whether he or she is the party specified in the contract or not,
shall be entitled to reasonable attorney’s fees in addition to other costs.
te 27 ;
Corporation 8 Cal. Civ. Code § 1717(a).
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‘As stated above, the contract signed by Thompson and Asimos specifically provides that the
prevailing party in any action “arising from or related to” the agreement “shall be entitled to
reasonable attorney fees and costs.” Kyle Decl. | 13, Ex. A.
As in litigation before the trial court, attorneys’ fees on appeal are recoverable if authorized
by contract. Cal. Code of Civ. Proc. § 1033.5(a)(10)(A); Starpoint Properties, LLC v. Namvar (2011)
201 Cal. App. 4th 1101, 1111. Accordingly, attorneys’ fees on appeal are recoverable here pursuant
to the express terms of the parties’ contract. See Morcos vy. Board of Retirement of County of Los
Angeles Employers’ Retirement Ass'n (1990) 51 Cal.3d 924, 927 (stating that “fees, if recoverable at
all — pursuant either to statute or parties’ agreement — are available for services at trial and on appeal”
(emphasis in original)).
Further, while the decision of the Court of Appeal provided that each party was to bear its
own costs, the decision was silent on the issue of attorneys’ fees. When an appellate court decision
2 6,
is silent as to attorneys’ fees, a party’s “entitlement to fees on appeal will be determined on remand
by motion made in the trial court pursuant to [Cal. Rule of Court] 3.1702.” Eisenberg, Cal. Practice
Guide: Civil Appeals and Writs (The Rutter Group 2016) 4 14:117.10. As a result of the parties’
contract, Thompson is asserting his entitlement to attomeys’ fees on appeal pursuant to Civil Code
section 1717, thus that “statute’s definition of ‘prevailing party’ determines the entitlement to
appellate fees.” Butler-Rupp v. Lourdeaux (2007) 154 Cal. App. 4th 918, 927.
Therefore, Thompson’s entitlement to fees, and the amount thereof, under the agreement!
between the parties is properly brought before the Court by this noticed motion.
B. Thompson Is Prevailing Party Entitled to Award of Attorneys’ Fees
California Civil Code § 1717(b) defines a prevailing party as “the party who recovered a
greater relief in the action on the contract.” Cal. Civ. Code § 1717(b)(1).
The trial court judgment awarded Thompson monetary damages, prejudgment interest, costs
of suit, and attorneys’ fees, and awarded Asimos nothing on his cross-claims. Kyle Decl. 14, Ex.
B. In its decision, the Court of Appeal affirmed the following aspects of the trial court’s judgment:
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© Determination of liability against Asimos for breach of contract;
¢ Rejection of all of Asimos’ claims against Thompson;
© Asimos’ trademark infringement and damages therefor;
¢ Award to Thompson of costs of suit; and
e Award to Thompson of attorneys’ fees.
Kyle Decl. § 16, Ex. D. On remand, further proceedings in the Superior Court ate necessary only
to recalculate the amount of the damages award to Thompson, including the amount of prejudgment
interest. The issue of whether Thompson is entitled to an award of breach of contract damages is
settled, having been definitively decided by the Court of Appeal.
Thus, a final determination upon the contract claims has been made, and Thompson has been
found to be entitled to recover on his contract claims whereas Asimos is entitled to no relief under
the contract.
Accordingly, Thompson is the prevailing party in the litigation following the appeal and is
entitled to his attorneys’ fees on appeal under the contract and Cal. Civil Code § 1717. See e.g.,
Butler-Rupp, 154 Cal. App. 4th at 928 (stating, “In cases where Civil Code section 1717’s definition
of ‘prevailing party’ applies, the identification of the party entitled to a fee award must be
determined by the final result of the litigation, ie., after conclusion of the appeal if an appeal is
taken”).
Cc. The Fees Incurred By Thompson Are Reasonable
To determine the reasonableness of an attorneys’ fee award, the court begins by performing a
lodestar calculation which entails multiplying the number of hours reasonably expended by the
reasonable hourly rate. See Margolin v. Regional Planning Comm. (1982) 134 Cal.App.3d 999, 1003
(discussing the general principles of determining redsonable attorneys’ fees). The court may adjust
that touchstone figure, “taking into consideration various relevant factors.” Id.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES
ON APPEAL
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Here, Thompson seeks an award of $83,235.00 for time spent on this matter by Thompson’s
attorneys and paralegals at Kyle Law Corporation. These fees are reasonable, as shown in the facts
detailed above, because they were incurred as a result of, among other things, the firm’s legal research
and analysis of applicable law, legal analysis of the record on appeal, drafting the briefs and moving
papers, preparing for oral argument, participating in oral argument, and attending to post-decision
issues in this matter.
Through April 3, 2017, this work was accomplished in 300.6 hours of attorney and paralegal
time. Kyle Decl. §§ 22-24. Further, 13 hours of attorney time (5 hours for Mr. Winetroub and 8 hours
for Mr. Kyle) are expected to be incurred in preparation of the Reply and attendance at the hearing
on this Motion, bringing the total attorney and paralegal time expended to 313.6 hours. Kyle Decl.
9 26-27.
In the San Francisco Bay Area, reasonable billing rates, pursuant to the Laffey Matrix as of|
2015, for attorneys with the level of experience of Plaintiffs’ counsel can be in excess of $562.00 per
hour for attorneys of Mr. Kyle’s experience and in excess of $300.00 per hour for attorneys of Mr.
Winetroub’s experience. Kyle Decl. {| 20; Syers Properties IIL, Inc. v. Rankin (2014) 226 Cal.App.4th
691, 700-703 (discussing applicability of Laffey Matrix in establishing prevailing rates in the San
Francisco Bay Area). Therefore, the lodestar amount, reflecting the basic fee for comparable legal
services in the community, could reasonably total more than $1 16,216.60 based on the number of|
hours spent on the matter by Thompson’s attorneys and paralegal.
Mr. Kyle’s normal hourly rate is $450.00 per hour and Mr. Winetroub’s is $295.00 per hour.
Kyle Decl. 921. As part of Kyle Law Corporation’s fee agreement with Thompson, the firm billed
Thompson at a discounted rate of $375.00 per hour for Mr. Kyle, $225.00 per hour for Mr. Winetroub,
and $125.00 per hour for paralegals. Id. Had Kyle Law Corporation billed at its normal rates,
Thompson’s fees would have been approximately $100,054.50 to date. Thus, the fees are not only
reasonable but are in fact $20,944.50 lower than the firm’s normal rates would have resulted in, which
themselves are below the prevailing rate in the community.
A breakdown of all Kyle Law Corporation time entries for legal fees billed in connection with!
the appeal proceedings is attached to the Declaration of Stephan E. Kyle filed in support of this
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motion. Kyle Decl. § 18, Ex. F. Those entries are summarized as follows:
> Kyle Law Corporation shareholder Stephan E. Kyle supervised this matter and
participated in all phases of preparing for and conducting the appeal proceedings.
Stephan E. Kyle has over twenty-four (24) years of civil litigation experience. He was
billed at a rate of $375.00 per hour and billed a total of 81.3 hours on this matter as of
April 3, 2017 and an additional 8 hours are expected to be incurred through the date’
of the hearing for a total of $33,487.50. Kyle Decl. 22, 26; Ex. F.
> Andrew H. Winetroub is an attorney at Kyle Law Corporation and has three (3) years’
experience in civil litigation as an attorney. Andrew H. Winetroub assisted with all
phases of preparing for and conducting the appeal proceedings. Andrew H. Winetroub
was billed at a rate of $225.00 per hour and billed a total of 212.1 hours on this matter
to date and an additional 5 hours are expected to be incurred through the date of the
hearing for a total of $48,847.50. Kyle Decl. { 23, 27; Ex. F.
> Gabriel Corpuz is a paralegal at Kyle Law Corporation and has over twenty (20) years
of experience in civil litigation. Gabriel Corpuz assisted with hearing preparation.
Gabriel Corpuz was billed at a rate of $125.00 per hour and billed a total of 6.4 hours
on this matter to date for a total of $900. Kyle Decl. 24; Ex. F.
As set forth above, for seeing the Motion For Attorneys’ Fees on Appeal through to
disposition, Thompson is requesting: an additional (i) 3 hours of Mr. Kyle’s time at $375.00 per hour!
for preparation of the Reply in support of the Motion, (ii) 5 hours of Mr. Kyle’s time at $375.00 per
hour for preparation for and appearance at the hearing on the Motion, and (iii) 5 hours of Mr.
Winetroub’s time at $225.00 per hour for preparation of the Reply. These additional hours, when
combined with the attorney time incurred through April 3, 2017, amount to a total award of fees of
$83,235.00.
IV. CONCLUSION
Based on the above, Plaintiffs respectfully request an award of attorneys’ fees on appeal,
pursuant to Cal. Code of Civ. Proc. § 1033.5, Cal. Civ. Code § 1717, and the parties’ contract, in the
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amount of $83,235.00 as the prevailing party in the appeal proceedings.
Respectfully submitted,
DATED: April 3, 2017 KYLE LAW CORPORATION
ov (bude lt Lod
“STEPHAN E. KYLE
ANDREW H. WINETROUB
Attorneys for Plaintiffs/Cross-Defendants
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES
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Thompson v. Asimos
San Francisco Superior Court Case No. CGC-11-514980
Court of Appeal Case No. A140096
PROOF OF SERVICE
I, the undersigned, state:
Iam a citizen of the United States. My business address is 350 California Street, 22nd Floor,
San Francisco, California 94104. I am employed in the City and County of San Francisco. J am
over the age of eighteen years and not a party to this action. On the date set forth below, I served
the foregoing documents described as follows:
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR ATTORNEYS’ FEES ON APPEAL
on the following person(s) in this action by placing a true copy thereof enclosed in a sealed envelope
addressed as follows:
Jessica R. Barsotti, Esq.
LAW OFFICE OF JESSICA R. BARSOTTI
5032 Woodminster Lane
Oakland, CA 94602
[x] BY FIRST CLASS MAIL ~ I am readily familiar with my firm’s practice for collection and
processing of correspondence for mailing with the United States Postal Service, to wit, that
correspondence will be deposited with the United States Postal Service this same day in the
ordinary course of business. I sealed said envelope and placed it for collection and mailing
this date, following ordinary business practices.
{] BY PERSONAL SERVICE — Following ordinary business practices, I caused to be served,
by hand delivery, such envelope(s) by hand this date to the offices of the addressee(s).
[] BY.OVERNIGHT MAIL ~ I caused such envelope to be delivered by a commercial carrier
service for overnight delivery to the office(s) of the addressee(s).
[J BY FACSIMILE — J caused said document to be transmitted by Facsimile machine to the
number indicated after the address(es) noted above.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct and that this declaration was executed this date in San Francisco, California.
Dated: April 3, 2017
C eet HL. WIN atl
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Preview
Kyle Law Corporation STEPHAN E. KYLE (SBN 158075) ANDREW H. WINETROUB (SBN 291847) KYLE LAW CORPORATION ELECTRONICALLY 350 California Street, 22nd Floor FILED San Francisco, CA 94104 ‘Superior Court of California, Telephone: (415) 839-8100 County of San Francisco Facsimile: _ (415) 839-8189 04/04/2017 Email: skyle@kylelawcorp.com clerk oF ie |Court Attorneys for Plaintiffs ee JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC., CASE NO. CGC-11-514980 Plaintiffs, COURT OF APPEAL CASE NO. A140096 Vv. MEMORANDUM OF POINTS AND DEAN GREGORY ASIMOS, dba DRAKE AUTHORITIES IN SUPPORT OF REALTY, MOTION FOR ATTORNEYS’ FEES ON APPEAL Defendant. DATE: MAY 3, 2017 TIME: 9:30 A.M. AND RELATED CROSS-ACTION. DEPT.: 302 RESERVATION NO.: 04030503-22 I. INTRODUCTION Pursuant to California Civil Code § 1717, California Code of Civil Procedure § 1033.5, and| the contract between the parties, Plaintiff Jason Everett Thompson (“Thompson”) is entitled to an award of his attorneys’ fees on appeal following the entry of the decision of the California Court of| Appeal and the issuance of the remittitur in this matter against Defendant Dean Gregory Asimos| (“Asimos”). Plaintiff Thompson seeks attorneys’ fees incurred in the amount of $83,235.00. Il. FACTUAL AND PROCEDURAL BACKGROUND The contract between Thompson and Asimos states that in the event of any litigation between -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-5149801 || the parties the losing party will be liable for the winning party’s attorneys’ fees. Specifically, 2 || paragraph 17 of the agreement provides: In any action, proceeding, or arbitration between Broker [Asimos] and 4 Associate-Licensee [Thompson] arising from or related to this Agreement, the prevailing Broker or Associate-Licensee shall be 5 entitled to reasonable attorney fees and costs. 6 7 Kyle Decl. { 13, Ex. A. Trial in this action commenced on October 9, 2012 and resulted in a judgment in favor of Thompson, wherein he was awarded $311,100.00 in Astound-transaction damages, $250.00 for 9 || Asimos’ service mark infringement, prejudgment interest on the Astound-transaction damages in the 10 |) amount of $138,688.00, and attorneys’ fees pursuant to noticed motion. Kyle Decl. { 14, Ex. B. i Asimos filed an appeal in the California Court of Appeal of the judgment entered against him. Kyle Decl. 4 15, Ex. C. Following the filing of the parties’ briefs, motions, and oral argument, the 13 Court of Appeal rendered its decision on December 15, 2016. Kyle Decl. J 16, Ex. D. In its decision, 14 1s the Court of Appeal remanded the case, among other reasons, to recalculate the damages, including 16 prejudgment interest, awarded to Thompson, but otherwise affirmed the judgment and permanent 17 || injunction entered in his favor. Id. Remittitur was issued on February 22, 2017, thereby restoring 18 || this Court’s jurisdiction over the matter. Kyle Decl. { 17, Ex. E. 19 1. LEGAL ARGUMENT 20 || A. The California Code and Parties’ Contract Authorizes Award of Attorneys’ Fees 21 California Civil Code § 1717(a) provides the conditions under which attorneys’ fees are 22 recoverable under contract: 23 In any action on a contract, where the contract specifically provides that 24 attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, 25 then the party who is determined to be the party prevailing on the 26 contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. te 27 ; Corporation 8 Cal. Civ. Code § 1717(a). 2 2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980Kyle Law Corporation Cem ND HW RB YW N RPM YH HNN Ree Se Pe Se ests RR PF Bek fF SD we&O ADH FH HFK 27 28 ‘As stated above, the contract signed by Thompson and Asimos specifically provides that the prevailing party in any action “arising from or related to” the agreement “shall be entitled to reasonable attorney fees and costs.” Kyle Decl. | 13, Ex. A. As in litigation before the trial court, attorneys’ fees on appeal are recoverable if authorized by contract. Cal. Code of Civ. Proc. § 1033.5(a)(10)(A); Starpoint Properties, LLC v. Namvar (2011) 201 Cal. App. 4th 1101, 1111. Accordingly, attorneys’ fees on appeal are recoverable here pursuant to the express terms of the parties’ contract. See Morcos vy. Board of Retirement of County of Los Angeles Employers’ Retirement Ass'n (1990) 51 Cal.3d 924, 927 (stating that “fees, if recoverable at all — pursuant either to statute or parties’ agreement — are available for services at trial and on appeal” (emphasis in original)). Further, while the decision of the Court of Appeal provided that each party was to bear its own costs, the decision was silent on the issue of attorneys’ fees. When an appellate court decision 2 6, is silent as to attorneys’ fees, a party’s “entitlement to fees on appeal will be determined on remand by motion made in the trial court pursuant to [Cal. Rule of Court] 3.1702.” Eisenberg, Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) 4 14:117.10. As a result of the parties’ contract, Thompson is asserting his entitlement to attomeys’ fees on appeal pursuant to Civil Code section 1717, thus that “statute’s definition of ‘prevailing party’ determines the entitlement to appellate fees.” Butler-Rupp v. Lourdeaux (2007) 154 Cal. App. 4th 918, 927. Therefore, Thompson’s entitlement to fees, and the amount thereof, under the agreement! between the parties is properly brought before the Court by this noticed motion. B. Thompson Is Prevailing Party Entitled to Award of Attorneys’ Fees California Civil Code § 1717(b) defines a prevailing party as “the party who recovered a greater relief in the action on the contract.” Cal. Civ. Code § 1717(b)(1). The trial court judgment awarded Thompson monetary damages, prejudgment interest, costs of suit, and attorneys’ fees, and awarded Asimos nothing on his cross-claims. Kyle Decl. 14, Ex. B. In its decision, the Court of Appeal affirmed the following aspects of the trial court’s judgment: 3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980Kyle Law Corporation 27 28 © Determination of liability against Asimos for breach of contract; ¢ Rejection of all of Asimos’ claims against Thompson; © Asimos’ trademark infringement and damages therefor; ¢ Award to Thompson of costs of suit; and e Award to Thompson of attorneys’ fees. Kyle Decl. § 16, Ex. D. On remand, further proceedings in the Superior Court ate necessary only to recalculate the amount of the damages award to Thompson, including the amount of prejudgment interest. The issue of whether Thompson is entitled to an award of breach of contract damages is settled, having been definitively decided by the Court of Appeal. Thus, a final determination upon the contract claims has been made, and Thompson has been found to be entitled to recover on his contract claims whereas Asimos is entitled to no relief under the contract. Accordingly, Thompson is the prevailing party in the litigation following the appeal and is entitled to his attorneys’ fees on appeal under the contract and Cal. Civil Code § 1717. See e.g., Butler-Rupp, 154 Cal. App. 4th at 928 (stating, “In cases where Civil Code section 1717’s definition of ‘prevailing party’ applies, the identification of the party entitled to a fee award must be determined by the final result of the litigation, ie., after conclusion of the appeal if an appeal is taken”). Cc. The Fees Incurred By Thompson Are Reasonable To determine the reasonableness of an attorneys’ fee award, the court begins by performing a lodestar calculation which entails multiplying the number of hours reasonably expended by the reasonable hourly rate. See Margolin v. Regional Planning Comm. (1982) 134 Cal.App.3d 999, 1003 (discussing the general principles of determining redsonable attorneys’ fees). The court may adjust that touchstone figure, “taking into consideration various relevant factors.” Id. 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980Kyle Law Corporation 27 28 Here, Thompson seeks an award of $83,235.00 for time spent on this matter by Thompson’s attorneys and paralegals at Kyle Law Corporation. These fees are reasonable, as shown in the facts detailed above, because they were incurred as a result of, among other things, the firm’s legal research and analysis of applicable law, legal analysis of the record on appeal, drafting the briefs and moving papers, preparing for oral argument, participating in oral argument, and attending to post-decision issues in this matter. Through April 3, 2017, this work was accomplished in 300.6 hours of attorney and paralegal time. Kyle Decl. §§ 22-24. Further, 13 hours of attorney time (5 hours for Mr. Winetroub and 8 hours for Mr. Kyle) are expected to be incurred in preparation of the Reply and attendance at the hearing on this Motion, bringing the total attorney and paralegal time expended to 313.6 hours. Kyle Decl. 9 26-27. In the San Francisco Bay Area, reasonable billing rates, pursuant to the Laffey Matrix as of| 2015, for attorneys with the level of experience of Plaintiffs’ counsel can be in excess of $562.00 per hour for attorneys of Mr. Kyle’s experience and in excess of $300.00 per hour for attorneys of Mr. Winetroub’s experience. Kyle Decl. {| 20; Syers Properties IIL, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 700-703 (discussing applicability of Laffey Matrix in establishing prevailing rates in the San Francisco Bay Area). Therefore, the lodestar amount, reflecting the basic fee for comparable legal services in the community, could reasonably total more than $1 16,216.60 based on the number of| hours spent on the matter by Thompson’s attorneys and paralegal. Mr. Kyle’s normal hourly rate is $450.00 per hour and Mr. Winetroub’s is $295.00 per hour. Kyle Decl. 921. As part of Kyle Law Corporation’s fee agreement with Thompson, the firm billed Thompson at a discounted rate of $375.00 per hour for Mr. Kyle, $225.00 per hour for Mr. Winetroub, and $125.00 per hour for paralegals. Id. Had Kyle Law Corporation billed at its normal rates, Thompson’s fees would have been approximately $100,054.50 to date. Thus, the fees are not only reasonable but are in fact $20,944.50 lower than the firm’s normal rates would have resulted in, which themselves are below the prevailing rate in the community. A breakdown of all Kyle Law Corporation time entries for legal fees billed in connection with! the appeal proceedings is attached to the Declaration of Stephan E. Kyle filed in support of this 5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980Kyle Law Corporation ow nN a motion. Kyle Decl. § 18, Ex. F. Those entries are summarized as follows: > Kyle Law Corporation shareholder Stephan E. Kyle supervised this matter and participated in all phases of preparing for and conducting the appeal proceedings. Stephan E. Kyle has over twenty-four (24) years of civil litigation experience. He was billed at a rate of $375.00 per hour and billed a total of 81.3 hours on this matter as of April 3, 2017 and an additional 8 hours are expected to be incurred through the date’ of the hearing for a total of $33,487.50. Kyle Decl. 22, 26; Ex. F. > Andrew H. Winetroub is an attorney at Kyle Law Corporation and has three (3) years’ experience in civil litigation as an attorney. Andrew H. Winetroub assisted with all phases of preparing for and conducting the appeal proceedings. Andrew H. Winetroub was billed at a rate of $225.00 per hour and billed a total of 212.1 hours on this matter to date and an additional 5 hours are expected to be incurred through the date of the hearing for a total of $48,847.50. Kyle Decl. { 23, 27; Ex. F. > Gabriel Corpuz is a paralegal at Kyle Law Corporation and has over twenty (20) years of experience in civil litigation. Gabriel Corpuz assisted with hearing preparation. Gabriel Corpuz was billed at a rate of $125.00 per hour and billed a total of 6.4 hours on this matter to date for a total of $900. Kyle Decl. 24; Ex. F. As set forth above, for seeing the Motion For Attorneys’ Fees on Appeal through to disposition, Thompson is requesting: an additional (i) 3 hours of Mr. Kyle’s time at $375.00 per hour! for preparation of the Reply in support of the Motion, (ii) 5 hours of Mr. Kyle’s time at $375.00 per hour for preparation for and appearance at the hearing on the Motion, and (iii) 5 hours of Mr. Winetroub’s time at $225.00 per hour for preparation of the Reply. These additional hours, when combined with the attorney time incurred through April 3, 2017, amount to a total award of fees of $83,235.00. IV. CONCLUSION Based on the above, Plaintiffs respectfully request an award of attorneys’ fees on appeal, pursuant to Cal. Code of Civ. Proc. § 1033.5, Cal. Civ. Code § 1717, and the parties’ contract, in the 6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980Kyle Law Corporation Coe ND 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 amount of $83,235.00 as the prevailing party in the appeal proceedings. Respectfully submitted, DATED: April 3, 2017 KYLE LAW CORPORATION ov (bude lt Lod “STEPHAN E. KYLE ANDREW H. WINETROUB Attorneys for Plaintiffs/Cross-Defendants JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. T+ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980Kyle Law Corporation Thompson v. Asimos San Francisco Superior Court Case No. CGC-11-514980 Court of Appeal Case No. A140096 PROOF OF SERVICE I, the undersigned, state: Iam a citizen of the United States. My business address is 350 California Street, 22nd Floor, San Francisco, California 94104. I am employed in the City and County of San Francisco. J am over the age of eighteen years and not a party to this action. On the date set forth below, I served the foregoing documents described as follows: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL on the following person(s) in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Jessica R. Barsotti, Esq. LAW OFFICE OF JESSICA R. BARSOTTI 5032 Woodminster Lane Oakland, CA 94602 [x] BY FIRST CLASS MAIL ~ I am readily familiar with my firm’s practice for collection and processing of correspondence for mailing with the United States Postal Service, to wit, that correspondence will be deposited with the United States Postal Service this same day in the ordinary course of business. I sealed said envelope and placed it for collection and mailing this date, following ordinary business practices. {] BY PERSONAL SERVICE — Following ordinary business practices, I caused to be served, by hand delivery, such envelope(s) by hand this date to the offices of the addressee(s). [] BY.OVERNIGHT MAIL ~ I caused such envelope to be delivered by a commercial carrier service for overnight delivery to the office(s) of the addressee(s). [J BY FACSIMILE — J caused said document to be transmitted by Facsimile machine to the number indicated after the address(es) noted above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed this date in San Francisco, California. Dated: April 3, 2017 C eet HL. WIN atl -8- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES ON APPEAL CGC-11-514980