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STEPHAN E. KYLE (SBN 158075)
ANDREW H. WINETROUB (SBN 291847)
KYLE LAW CORPORATION
230 California Street, Suite 600
San Francisco, CA_ 94111 ELECTRON
Telephone: (415) 839-8100 FI LED
Facsunile: (415) 839-8189 C
Email: skyle@kylelawcorp.com PCoumy of San frencieco
to 01/05/2016
Attorneys for Plaintiffs
JASON EVERETT THOMPSON and Serna ruse
WIRED REAL ESTATE GROUP, INC. Deputy Clerk
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,
MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
MOTION FOR ATTORNEYS’ FEES
DEAN GREGORY ASIMOS, dba DRAKE
REALTY, DATE: FEBRUARY 3, 2016
TIME: 1:30 P.M.
Defendant. DEPT.: 503
AND RELATED CROSS-ACTION.
L INTRODUCTION
Pursuant to the Court’s Judgment of Contempt, the Contempt Order, and California Code of|
Civil Procedure § 1218(a), Plaintiff Jason Everett Thompson is entitled to an award of his attorneys’
fees following the entry of the Judgment of Contempt against Defendant Dean Gregory Asimos
(Asimos”). Plaintiff Thompson seeks attorneys’ fees and costs incurred in the amount of $64,027.35.
Il. FACTUAL AND PROCEDURAL BACKGROUND
In connection with the contempt proceedings initiated by Plaintiffs against Asimos, Plaintiffs’
counsel appeared at no fewer than five (5) hearings in the matter and performed substantial work that
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included, but was not limited to, the following:
On July 30, 2015, Plaintiffs’ counsel wrote a letter to Asimos’ counsel to provide
Asimos with a final opportunity to sign an unaltered authorization form and to
comply with the Permanent Injunction of this Court, entered on August 23, 2013
(the “Permanent Injunction”), so as to avoid the filing by Plaintiffs of a Motion
For Order To Show Cause re Contempt. Kyle Decl. ¥ 14.
On August 12, 2015, Plaintiffs’ counsel received correspondence from Asimos’
counsel asserting, incorrectly, that Asimos had performed as required by the
Permanent Injunction. Kyle Decl. { 15.
Since Asimos continued to refuse to sign the authorization, Plaintiffs’ counsel
conducted the necessary legal research and prepared and filed the first Notice of
Motion, the Motion For Order To Show Cause re Contempt (the “Motion”), the
Declaration of Stephan E. Kyle in support thereof, and the Proposed Judgment and)
Order on August 14, 2015. Kyle Decl. { 17.
On August 18 and 19, 2015, Plaintiffs’ counsel exchanged correspondence with
Asimos’ counsel and the trial court judge, the Hon. Wallace P. Douglass, regarding
the filing of the Motion in light of Judge Douglass’ status as a retired Judge of the|
Superior Court. Kyle Decl. { 18. Judge Douglass informed counsel that he is no
longer handling post-trial proceedings and directed counsel to the Master Calendar|
Department for hearing on the matter. As a result, Plaintiffs’ counsel researched
the procedure, contacted the Court, and re-filed the Motion and related moving
papers in the Master Calendar Department on August 21, 2015, and re-served the!
papers on Asimos’ counsel. Kyle Decl. 19.
On September 14, 2015, Asimos filed an Opposition to the Motion and supporting
declaration of his counsel, which included a claim for sanctions against Plaintiffs’
counsel. Kyle Decl. 20.
On September 17, 2015, Plaintiffs’ filed their Reply in support of the Motion. Kyle
Decl. § 21. At that time, Plaintiffs’ also filed a, Supplemental Declaration of|
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Stephan E. Kyle along with supporting exhibits. Kyle Decl. 21. Significant legal
research was required in the preparation of the Reply due to the eighteen (18) cases
cited in the Opposition.
On September 24, 2015, Plaintiffs’ counsel prepared for and appeared at the
hearing on the Motion. At that time, the Court entered its Order To Show Cause’
re Contempt (the “OSC re Contempt”) against Asimos. Kyle Decl. § 22.
Subsequently, Plaintiffs’ counsel prepared, filed, and served the Notice of Entry’
of Order.
The hearing on the OSC re Contempt was scheduled for October 21, 2015. One
day prior to the hearing, on October 20, 2015, Asimos’ counsel filed a Declaration
that, among other things, referenced briefs filed in the Court of Appeal as a
purported basis for her client not being in contempt. Kyle Decl. 23. To properly
prepare for the hearing, Plaintiffs’ counsel was required to review the briefs
submitted in the Court of Appeal.
On October 21, 2015, Plaintiffs’ counsel prepared for and appeared at the first
hearing on the OSC re Contempt. After a brief presentation of argument, the Court
continued the hearing and instructed the parties to prepare and exchange any
evidence they would be relying on in the contempt proceedings that had yet to be
introduced. Kyle Decl. { 24.
As such, Plaintiffs’ counsel prepared a Request For Judicial Notice In Support Of|
Judgment of Contempt, which was filed with the Court on October 22, 2015. Kyle
Decl. { 25.
On October 29 and 30, 2015, Asimos’ counsel filed documents including Asimos”
Opening Brief in the Court of Appeal and a Declaration from Asimos’ counsel in
bankruptcy proceedings. Kyle Decl. {] 26-27. Plaintiffs’ counsel reviewed and
analyzed these documents in connection with the arguments advanced by Asimos.
On November 2, 2015, Plaintiffs’ counsel prepared for and appeared at the second
hearing on the OSC re Contempt. At that time, the Court found Asimos guilty of|
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contempt. Kyle Decl. { 28. The Court also ordered Asimos to execute and
deliver—by the end of the day—to Plaintiffs’ counsel a signed authorization form
regarding distribution of the settlement funds at issue in the matter. Kyle Decl. {
28.
Plaintiffs’ counsel awaited delivery of the executed authorization form up to and
past the deadline established by the Court’s order. Kyle Decl. 29. On November|
4, 2015, Plaintiffs’ filed a Notice of Defendant’s Failure To Comply, as well as a|
Declaration of Stephan E. Kyle in support thereof, in light of Asimos’ failure to
perform his obligations under the Court’s November 2, 2015 Order. Kyle Decl. {
29.
During this time, Plaintiffs’ counsel also prepared the Judgment of Contempt and
the Contempt Order for the Court’s. consideration, both of which were sent to
Asimos’ counsel for approval on November 11, 2015. Kyle Decl. | 32. Since no
objection was received from Asimos’ counsel, the Judgment of Contempt and the
Contempt Order were lodged with this Court on November 12, 2015. Kyle Decl.
932.
On November 9, 2015, Plaintiffs’ counsel received an undated and unnotarized
authorization form appearing to bear Asimos’ signature. Kyle Decl. 30. In light
of the lack of indicia of authenticity, Plaintiffs’ counsel was required to analyze
the effect such a document might have.
On November 10, 2015, Plaintiffs’ counsel sent the authorization form to Carr
McClellan, requesting immediate release of the funds held in trust. Kyle Decl. {
31.
On November 13, 2015, Plaintiffs’ counsel prepared for and appeared at a status
hearing in the matter. Asimos and his attorney failed to appear at the hearing.
Kyle Decl. § 33. At that time, the Court signed and entered the Judgment of|
Contempt and the Contempt Order, which, among other things, ordered Asimos to!
pay Plaintiffs’ reasonable attorneys’ fees in connection with this action. Kyle
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Decl. § 33. The Court also ordered that a Civil Bench Warrant be issued for'
Asimos’ arrest due to his failure to appear at the hearing. Plaintiffs’ counsel was
ordered to provide Notice of Entry of the Judgment of Contempt and the Contempt
Order. Kyle Decl. § 33.
As aresult, Plaintiffs’ counsel was instructed to provide identifying information to’
the Court to assist the Court in the preparation of the Civil Bench Warrant. This
required additional research on warrant procedures and requirements. Ultimately,
on November 17, 2015, the Court issued its Civil Bench Warrant for Asimos’
arrest. Kyle Decl. $f 34-35. :
During this time, Plaintiffs’ counsel was also engaged in correspondence and
negotiations with the law firm of Carr McClellan regarding release of the
settlement funds being held in the firm’s trust account. Kyle Decl. (31, 37. This
correspondence flowed directly from the contempt proceedings because Carr
McClellan would not release the funds due to the fact that the authorization form|
was neither dated nor notarized by Asimos. Kyle Decl. { 37.
On November 18, 2015, Plaintiffs’ counsel received a call from the Court that!
provided notice of a status conference to be held on November 20, 2015. Kyle
Decl. { 36. After the scheduling of this hearing, Plaintiffs’’ counsel engaged in
further communications with attorneys at Carr McClellan regarding the release of|
the settlement funds held in trust. This correspondence led to the filing of a|
declaration and proposed order instructing Carr McClellan to distribute the funds,
to Plaintiffs, as well as an appearance at the November 20, 2015 hearing by Robert
A. Bleicher, an attorney at Carr McClellan, for the purpose of seeking an order
directly from the Court. Kyle Decl. 37. Plaintiffs’ counsel provided notice to
Asimos’ counsel of these actions. Kyle Decl. { 37.
Accordingly, on November 20, 2015, Plaintiffs’ counsel prepared for and appeared
at the fifth hearing in the matter. Following the hearing, Plaintiffs’ counsel
prepared the Notice of Entry of Order in light of the Court’s order directing Carr!
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McClellan to distribute the settlement funds to Respondents. Kyle Decl. § 38. At
the direction of the Court, Plaintiffs’ counsel also prepared the Order Regarding
the 11/20/2015 O.S.C. Hearing re Contempt, which was entered by the Court on
December 3, 2015. Kyle Decl. | 38. Drafts were sent to Asimos’ counsel for
approval prior to lodging with the Court on November 20, 2015.
e Subsequently, Plaintiffs’ counsel worked directly and efficiently with Carr
McClellan on the release of the settlement funds to Plaintiffs in line with the
Court’s Orders.
e Plaintiffs’ counsel then undertook the research (including the lodestar
methodology) and drafting necessary to prepare this motion, the supporting)
declaration of counsel, and the chart detailing the breakdown of attorneys’ fees and
costs. Kyle Decl. 4 40-46.
This background, as supported by the Kyle Decl., clearly establishes that the amount of time
and resources required by and consumed by these contempt proceedings have been substantial.
I. LEGAL ARGUMENT »
A. Code of Civil Procedure Authorizes Court’s Award of Attorneys’ Fees
California Code of Civil Procedure § 1218(a) provides that “a person who is subject to a court
order as a party to the action . . . who is adjudged guilty of contempt for violating that court order
may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees
and costs incurred by this party in connection with the contempt proceeding.” Cal. Code Civ. Proc.
§ 1218(a).
Asimos was subject to a court order, the Permanent Injunction of August 23, 2013, in the
above-entitled action. Kyle Decl. { 13. On November 2, 2015, this Court adjudged Asimos guilty of|
contempt for his violations of and noncompliance with the Permanent Injunction’s order. Kyle Decl.
{ 28. After being adjudged guilty of contempt, the Court ordered Asimos to pay Plaintiffs the’
reasonable attorneys’ fees and costs incurred by them in connection with this action. Kyle Decl. {
33.
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Accordingly, the Court’s award of attorneys’ fees to Plaintiffs is authorized by the controlling
statute.
B. The Fees and Costs Incurred By Plaintiffs 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. Margolin v. Regional Planning Comm. (1982) 134 Cal.App.3d 999, 1003
(discussing the general principles of determining reasonable attorneys’ fees). The court may adjust
that touchstone figure, “taking into consideration various relevant factors.” Id.
Here, Plaintiffs seek an award of $64,027.35 for time spent on this matter by Plaintiffs’”’
attorneys and paralegals at Kyle Law Corporation and costs incurred. These fees and costs are
reasonable, as shown in the facts detailed above, because they were incurred as a result of the firm’s
legal research and analysis, drafting the moving papers, preparing filings regarding evidence and
Asimos’ lack of compliance, responding to Asimos’ Opposition and Declarations in opposition to the
Motion, preparing for hearings, participating in hearings, complying with the Civil Bench Warrant
procedures, taking the necessary steps to secure release of the settlement funds, and attending to post-
judgment issues in this matter. Further, many of the issues that arose during the course of the
contempt proceedings were unusual for a civil litigation practice—including, by way of example and
not limitation, the heightened burden of proof requiring proof beyond a reasonable doubt, the quasi-
criminal nature of the contempt proceedings, and the civil bench warrant process—thereby requiring
further attomey time. Through December 31, 2015, this work was accomplished in 241.7 hours of|
attorney and paralegal time. Further, 15 hours of attorney time (10 hours for Mr. Winetroub and 5
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 time expended to 256.7 hours. Kyle Decl. ff] 44-
46, 53-54.
In ‘the San Francisco Bay Area, reasonable billing rates, pursuant to the Laffey Matrix, for
attorneys with the level of experience of Plaintiffs’ counsel can run as high as $562.00 per hour for
attorneys of Mr. Kyle’s experience and as high as $275.00 per hour for attorneys of Mr. Winetroub’s
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experience. Kyle Decl. | 42; Syers Properties I, 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 $90,956.50 based on the number of hours spent (and
to be spent) on the matter by Plaintiffs’ attorneys.
Mr. Kyle’s normal hourly rate is $425.00 per hour and Mr. Winetroub’s is $250.00 per hour.
Kyle Decl. { 43. As part of Kyle Law Corporation’s fee agreement with Plaintiffs, the firm billed
Plaintiffs at a discounted rate of $375.00 per hour for Mr. Kyle, $195.00 per hour for Mr. Winetroub,
and $125.00 per hour for paralegals. Had Kyle Law Corporation billed at its normal rates, Plaintiffs’
fees would have been approximately $76,525.00 up through the date of the hearing. Thus, the fees
are not only reasonable but are in fact $13,648.50 lower than the firm’s normal rates would have
resulted in, which themselves are below the prevailing rate in the community. Kyle Decl. {{[,42-43.
A breakdown of all Kyle Law Corporation time entries for legal fees billed in connection with
the contempt proceedings is attached to the Declaration of Stephan E. Kyle filed in support of this
motion. Kyle Decl., Ex. A. 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 these contempt proceedings.
Stephan E. Kyle has over twenty-three (23) years of civil litigation experience. He
was billed at a rate of $375.00 per hour and billed a total of 67.0 hours on this matter
as of December 31, 2015 and an additional five (5) hours is expected to be incurred
through the date of the hearing for a total of $27,000.00. Kyle Decl. ff 44, 53; Ex. A.
> Andrew H. Winetroub is an attorney at Kyle Law Corporation and has two (2) years”
experience in civil litigation as an attorney. Andrew H. Winetroub assisted with all
phases of preparing for and conducting these contempt proceedings. Andrew H.
‘Winetroub was billed at a rate of $195.00 per hour and billed a total of 172.7 hours on
this matter as of December 31, 2015 and an additional ten (10) hours is expected to be
incurred through the date of the hearing for a total of $35,626.50. Kyle Decl. {{ 45,
54; Ex. A.
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> 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 2.0 hours
on this matter as of December 31, 2015 for a total of $250.00. Kyle Decl. { 46; Ex.
A.
> In addition, plaintiffs incurred actual costs in connection with the contempt
proceedings in the total amount of $1,150.85. Kyle Decl. 447.
As set forth above, for seeing the Motion For Attorneys’ Fees through to disposition, Plaintiffs
are requesting: an additional (i) 2.0 hours of Mr. Kyle’s time at $375.00 per hour for preparation of|
the Reply in support of the Motion, (ii) 3.0 hours of Mr. Kyle’s time at $375.00 per hour for
preparation for and appearance at the hearing on the Motion, and (iii) 10.0 hours of Mr. Winetroub’s
time at $195.00 per hour for preparation of the Reply. These additional hours, when combined with
the attorney time incurred through December 31, 2015, amount to a total award of fees and costs of|
$64,027.35.
Iv. CONCLUSION
Based on the above, Plaintiffs respectfully request an award of attorneys’ fees and costs,
pursuant to C.C.P. § 1218(a), in the amount of $64,027.35 as the initiating party in these contempt
proceedings.
Respectfully submitted,
DATED: January 4, 2016 KYLE LAW CORPORATION
» ee
STEP. E. KYLE
ANDREW H. WINETROUB
Attorneys for Plaintiff's/Cross-Defendants
JASON EVERETT THOMPSON and
WIRED REAL ESTATE GROUP, INC.
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Thompson v. Asimos
San Francisco Superior Court Case No. CGC-11-514980
PROOF OF SERVICE
I, the undersigned, state:
Iam a citizen of the United States. My business address is 230 California Street, Suite 600,
San Francisco, California 94111. I am employed in the City and County of San Francisco. [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 the following person(s) in this action by placing a true copy thereof enclosed ina 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. 7
[] 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).
[] BY FACSIMILE — I 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: January 4, 2016
( War H. WINETROUB
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES
CGC-11-514980
Preview
Kyle Law Corporation RW N ow nnn ul 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 STEPHAN E. KYLE (SBN 158075) ANDREW H. WINETROUB (SBN 291847) KYLE LAW CORPORATION 230 California Street, Suite 600 San Francisco, CA_ 94111 ELECTRON Telephone: (415) 839-8100 FI LED Facsunile: (415) 839-8189 C Email: skyle@kylelawcorp.com PCoumy of San frencieco to 01/05/2016 Attorneys for Plaintiffs JASON EVERETT THOMPSON and Serna ruse WIRED REAL ESTATE GROUP, INC. Deputy Clerk 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, MEMORANDUM OF POINTS AND v. AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES DEAN GREGORY ASIMOS, dba DRAKE REALTY, DATE: FEBRUARY 3, 2016 TIME: 1:30 P.M. Defendant. DEPT.: 503 AND RELATED CROSS-ACTION. L INTRODUCTION Pursuant to the Court’s Judgment of Contempt, the Contempt Order, and California Code of| Civil Procedure § 1218(a), Plaintiff Jason Everett Thompson is entitled to an award of his attorneys’ fees following the entry of the Judgment of Contempt against Defendant Dean Gregory Asimos (Asimos”). Plaintiff Thompson seeks attorneys’ fees and costs incurred in the amount of $64,027.35. Il. FACTUAL AND PROCEDURAL BACKGROUND In connection with the contempt proceedings initiated by Plaintiffs against Asimos, Plaintiffs’ counsel appeared at no fewer than five (5) hearings in the matter and performed substantial work that -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation oC eo ND HW BF WN we NYY YN NNN Fee Se Se oe ees Ruse aSR BNF SC Owe YN DH RF YB YN FS included, but was not limited to, the following: On July 30, 2015, Plaintiffs’ counsel wrote a letter to Asimos’ counsel to provide Asimos with a final opportunity to sign an unaltered authorization form and to comply with the Permanent Injunction of this Court, entered on August 23, 2013 (the “Permanent Injunction”), so as to avoid the filing by Plaintiffs of a Motion For Order To Show Cause re Contempt. Kyle Decl. ¥ 14. On August 12, 2015, Plaintiffs’ counsel received correspondence from Asimos’ counsel asserting, incorrectly, that Asimos had performed as required by the Permanent Injunction. Kyle Decl. { 15. Since Asimos continued to refuse to sign the authorization, Plaintiffs’ counsel conducted the necessary legal research and prepared and filed the first Notice of Motion, the Motion For Order To Show Cause re Contempt (the “Motion”), the Declaration of Stephan E. Kyle in support thereof, and the Proposed Judgment and) Order on August 14, 2015. Kyle Decl. { 17. On August 18 and 19, 2015, Plaintiffs’ counsel exchanged correspondence with Asimos’ counsel and the trial court judge, the Hon. Wallace P. Douglass, regarding the filing of the Motion in light of Judge Douglass’ status as a retired Judge of the| Superior Court. Kyle Decl. { 18. Judge Douglass informed counsel that he is no longer handling post-trial proceedings and directed counsel to the Master Calendar| Department for hearing on the matter. As a result, Plaintiffs’ counsel researched the procedure, contacted the Court, and re-filed the Motion and related moving papers in the Master Calendar Department on August 21, 2015, and re-served the! papers on Asimos’ counsel. Kyle Decl. 19. On September 14, 2015, Asimos filed an Opposition to the Motion and supporting declaration of his counsel, which included a claim for sanctions against Plaintiffs’ counsel. Kyle Decl. 20. On September 17, 2015, Plaintiffs’ filed their Reply in support of the Motion. Kyle Decl. § 21. At that time, Plaintiffs’ also filed a, Supplemental Declaration of| -2- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation oN DA WH BF WN 10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Stephan E. Kyle along with supporting exhibits. Kyle Decl. 21. Significant legal research was required in the preparation of the Reply due to the eighteen (18) cases cited in the Opposition. On September 24, 2015, Plaintiffs’ counsel prepared for and appeared at the hearing on the Motion. At that time, the Court entered its Order To Show Cause’ re Contempt (the “OSC re Contempt”) against Asimos. Kyle Decl. § 22. Subsequently, Plaintiffs’ counsel prepared, filed, and served the Notice of Entry’ of Order. The hearing on the OSC re Contempt was scheduled for October 21, 2015. One day prior to the hearing, on October 20, 2015, Asimos’ counsel filed a Declaration that, among other things, referenced briefs filed in the Court of Appeal as a purported basis for her client not being in contempt. Kyle Decl. 23. To properly prepare for the hearing, Plaintiffs’ counsel was required to review the briefs submitted in the Court of Appeal. On October 21, 2015, Plaintiffs’ counsel prepared for and appeared at the first hearing on the OSC re Contempt. After a brief presentation of argument, the Court continued the hearing and instructed the parties to prepare and exchange any evidence they would be relying on in the contempt proceedings that had yet to be introduced. Kyle Decl. { 24. As such, Plaintiffs’ counsel prepared a Request For Judicial Notice In Support Of| Judgment of Contempt, which was filed with the Court on October 22, 2015. Kyle Decl. { 25. On October 29 and 30, 2015, Asimos’ counsel filed documents including Asimos” Opening Brief in the Court of Appeal and a Declaration from Asimos’ counsel in bankruptcy proceedings. Kyle Decl. {] 26-27. Plaintiffs’ counsel reviewed and analyzed these documents in connection with the arguments advanced by Asimos. On November 2, 2015, Plaintiffs’ counsel prepared for and appeared at the second hearing on the OSC re Contempt. At that time, the Court found Asimos guilty of| 3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation A & WN oO ND il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 contempt. Kyle Decl. { 28. The Court also ordered Asimos to execute and deliver—by the end of the day—to Plaintiffs’ counsel a signed authorization form regarding distribution of the settlement funds at issue in the matter. Kyle Decl. { 28. Plaintiffs’ counsel awaited delivery of the executed authorization form up to and past the deadline established by the Court’s order. Kyle Decl. 29. On November| 4, 2015, Plaintiffs’ filed a Notice of Defendant’s Failure To Comply, as well as a| Declaration of Stephan E. Kyle in support thereof, in light of Asimos’ failure to perform his obligations under the Court’s November 2, 2015 Order. Kyle Decl. { 29. During this time, Plaintiffs’ counsel also prepared the Judgment of Contempt and the Contempt Order for the Court’s. consideration, both of which were sent to Asimos’ counsel for approval on November 11, 2015. Kyle Decl. | 32. Since no objection was received from Asimos’ counsel, the Judgment of Contempt and the Contempt Order were lodged with this Court on November 12, 2015. Kyle Decl. 932. On November 9, 2015, Plaintiffs’ counsel received an undated and unnotarized authorization form appearing to bear Asimos’ signature. Kyle Decl. 30. In light of the lack of indicia of authenticity, Plaintiffs’ counsel was required to analyze the effect such a document might have. On November 10, 2015, Plaintiffs’ counsel sent the authorization form to Carr McClellan, requesting immediate release of the funds held in trust. Kyle Decl. { 31. On November 13, 2015, Plaintiffs’ counsel prepared for and appeared at a status hearing in the matter. Asimos and his attorney failed to appear at the hearing. Kyle Decl. § 33. At that time, the Court signed and entered the Judgment of| Contempt and the Contempt Order, which, among other things, ordered Asimos to! pay Plaintiffs’ reasonable attorneys’ fees in connection with this action. Kyle -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law ‘Corporation Cow QW Dw 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Decl. § 33. The Court also ordered that a Civil Bench Warrant be issued for' Asimos’ arrest due to his failure to appear at the hearing. Plaintiffs’ counsel was ordered to provide Notice of Entry of the Judgment of Contempt and the Contempt Order. Kyle Decl. § 33. As aresult, Plaintiffs’ counsel was instructed to provide identifying information to’ the Court to assist the Court in the preparation of the Civil Bench Warrant. This required additional research on warrant procedures and requirements. Ultimately, on November 17, 2015, the Court issued its Civil Bench Warrant for Asimos’ arrest. Kyle Decl. $f 34-35. : During this time, Plaintiffs’ counsel was also engaged in correspondence and negotiations with the law firm of Carr McClellan regarding release of the settlement funds being held in the firm’s trust account. Kyle Decl. (31, 37. This correspondence flowed directly from the contempt proceedings because Carr McClellan would not release the funds due to the fact that the authorization form| was neither dated nor notarized by Asimos. Kyle Decl. { 37. On November 18, 2015, Plaintiffs’ counsel received a call from the Court that! provided notice of a status conference to be held on November 20, 2015. Kyle Decl. { 36. After the scheduling of this hearing, Plaintiffs’’ counsel engaged in further communications with attorneys at Carr McClellan regarding the release of| the settlement funds held in trust. This correspondence led to the filing of a| declaration and proposed order instructing Carr McClellan to distribute the funds, to Plaintiffs, as well as an appearance at the November 20, 2015 hearing by Robert A. Bleicher, an attorney at Carr McClellan, for the purpose of seeking an order directly from the Court. Kyle Decl. 37. Plaintiffs’ counsel provided notice to Asimos’ counsel of these actions. Kyle Decl. { 37. Accordingly, on November 20, 2015, Plaintiffs’ counsel prepared for and appeared at the fifth hearing in the matter. Following the hearing, Plaintiffs’ counsel prepared the Notice of Entry of Order in light of the Court’s order directing Carr! 5. ‘s Se MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation Coe YN DH A 10 ul 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 McClellan to distribute the settlement funds to Respondents. Kyle Decl. § 38. At the direction of the Court, Plaintiffs’ counsel also prepared the Order Regarding the 11/20/2015 O.S.C. Hearing re Contempt, which was entered by the Court on December 3, 2015. Kyle Decl. | 38. Drafts were sent to Asimos’ counsel for approval prior to lodging with the Court on November 20, 2015. e Subsequently, Plaintiffs’ counsel worked directly and efficiently with Carr McClellan on the release of the settlement funds to Plaintiffs in line with the Court’s Orders. e Plaintiffs’ counsel then undertook the research (including the lodestar methodology) and drafting necessary to prepare this motion, the supporting) declaration of counsel, and the chart detailing the breakdown of attorneys’ fees and costs. Kyle Decl. 4 40-46. This background, as supported by the Kyle Decl., clearly establishes that the amount of time and resources required by and consumed by these contempt proceedings have been substantial. I. LEGAL ARGUMENT » A. Code of Civil Procedure Authorizes Court’s Award of Attorneys’ Fees California Code of Civil Procedure § 1218(a) provides that “a person who is subject to a court order as a party to the action . . . who is adjudged guilty of contempt for violating that court order may be ordered to pay to the party initiating the contempt proceeding the reasonable attorney’s fees and costs incurred by this party in connection with the contempt proceeding.” Cal. Code Civ. Proc. § 1218(a). Asimos was subject to a court order, the Permanent Injunction of August 23, 2013, in the above-entitled action. Kyle Decl. { 13. On November 2, 2015, this Court adjudged Asimos guilty of| contempt for his violations of and noncompliance with the Permanent Injunction’s order. Kyle Decl. { 28. After being adjudged guilty of contempt, the Court ordered Asimos to pay Plaintiffs the’ reasonable attorneys’ fees and costs incurred by them in connection with this action. Kyle Decl. { 33. -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation Uk WN oo IN DW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Accordingly, the Court’s award of attorneys’ fees to Plaintiffs is authorized by the controlling statute. B. The Fees and Costs Incurred By Plaintiffs 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. Margolin v. Regional Planning Comm. (1982) 134 Cal.App.3d 999, 1003 (discussing the general principles of determining reasonable attorneys’ fees). The court may adjust that touchstone figure, “taking into consideration various relevant factors.” Id. Here, Plaintiffs seek an award of $64,027.35 for time spent on this matter by Plaintiffs’”’ attorneys and paralegals at Kyle Law Corporation and costs incurred. These fees and costs are reasonable, as shown in the facts detailed above, because they were incurred as a result of the firm’s legal research and analysis, drafting the moving papers, preparing filings regarding evidence and Asimos’ lack of compliance, responding to Asimos’ Opposition and Declarations in opposition to the Motion, preparing for hearings, participating in hearings, complying with the Civil Bench Warrant procedures, taking the necessary steps to secure release of the settlement funds, and attending to post- judgment issues in this matter. Further, many of the issues that arose during the course of the contempt proceedings were unusual for a civil litigation practice—including, by way of example and not limitation, the heightened burden of proof requiring proof beyond a reasonable doubt, the quasi- criminal nature of the contempt proceedings, and the civil bench warrant process—thereby requiring further attomey time. Through December 31, 2015, this work was accomplished in 241.7 hours of| attorney and paralegal time. Further, 15 hours of attorney time (10 hours for Mr. Winetroub and 5 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 time expended to 256.7 hours. Kyle Decl. ff] 44- 46, 53-54. In ‘the San Francisco Bay Area, reasonable billing rates, pursuant to the Laffey Matrix, for attorneys with the level of experience of Plaintiffs’ counsel can run as high as $562.00 per hour for attorneys of Mr. Kyle’s experience and as high as $275.00 per hour for attorneys of Mr. Winetroub’s -T- SO Se MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation UA & WN Co oe NA 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 experience. Kyle Decl. | 42; Syers Properties I, 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 $90,956.50 based on the number of hours spent (and to be spent) on the matter by Plaintiffs’ attorneys. Mr. Kyle’s normal hourly rate is $425.00 per hour and Mr. Winetroub’s is $250.00 per hour. Kyle Decl. { 43. As part of Kyle Law Corporation’s fee agreement with Plaintiffs, the firm billed Plaintiffs at a discounted rate of $375.00 per hour for Mr. Kyle, $195.00 per hour for Mr. Winetroub, and $125.00 per hour for paralegals. Had Kyle Law Corporation billed at its normal rates, Plaintiffs’ fees would have been approximately $76,525.00 up through the date of the hearing. Thus, the fees are not only reasonable but are in fact $13,648.50 lower than the firm’s normal rates would have resulted in, which themselves are below the prevailing rate in the community. Kyle Decl. {{[,42-43. A breakdown of all Kyle Law Corporation time entries for legal fees billed in connection with the contempt proceedings is attached to the Declaration of Stephan E. Kyle filed in support of this motion. Kyle Decl., Ex. A. 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 these contempt proceedings. Stephan E. Kyle has over twenty-three (23) years of civil litigation experience. He was billed at a rate of $375.00 per hour and billed a total of 67.0 hours on this matter as of December 31, 2015 and an additional five (5) hours is expected to be incurred through the date of the hearing for a total of $27,000.00. Kyle Decl. ff 44, 53; Ex. A. > Andrew H. Winetroub is an attorney at Kyle Law Corporation and has two (2) years” experience in civil litigation as an attorney. Andrew H. Winetroub assisted with all phases of preparing for and conducting these contempt proceedings. Andrew H. ‘Winetroub was billed at a rate of $195.00 per hour and billed a total of 172.7 hours on this matter as of December 31, 2015 and an additional ten (10) hours is expected to be incurred through the date of the hearing for a total of $35,626.50. Kyle Decl. {{ 45, 54; Ex. A. 8. SOOO eee ea MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation oe ND HW FF WY Bowe yy KYN NNN EY SF FSP ee Eppes Bee aR Fv FF SOD we Qe DH RY YN FS > 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 2.0 hours on this matter as of December 31, 2015 for a total of $250.00. Kyle Decl. { 46; Ex. A. > In addition, plaintiffs incurred actual costs in connection with the contempt proceedings in the total amount of $1,150.85. Kyle Decl. 447. As set forth above, for seeing the Motion For Attorneys’ Fees through to disposition, Plaintiffs are requesting: an additional (i) 2.0 hours of Mr. Kyle’s time at $375.00 per hour for preparation of| the Reply in support of the Motion, (ii) 3.0 hours of Mr. Kyle’s time at $375.00 per hour for preparation for and appearance at the hearing on the Motion, and (iii) 10.0 hours of Mr. Winetroub’s time at $195.00 per hour for preparation of the Reply. These additional hours, when combined with the attorney time incurred through December 31, 2015, amount to a total award of fees and costs of| $64,027.35. Iv. CONCLUSION Based on the above, Plaintiffs respectfully request an award of attorneys’ fees and costs, pursuant to C.C.P. § 1218(a), in the amount of $64,027.35 as the initiating party in these contempt proceedings. Respectfully submitted, DATED: January 4, 2016 KYLE LAW CORPORATION » ee STEP. E. KYLE ANDREW H. WINETROUB Attorneys for Plaintiff's/Cross-Defendants JASON EVERETT THOMPSON and WIRED REAL ESTATE GROUP, INC. -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980Kyle Law Corporation io wo NI 10 ll 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Thompson v. Asimos San Francisco Superior Court Case No. CGC-11-514980 PROOF OF SERVICE I, the undersigned, state: Iam a citizen of the United States. My business address is 230 California Street, Suite 600, San Francisco, California 94111. I am employed in the City and County of San Francisco. [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 the following person(s) in this action by placing a true copy thereof enclosed ina 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. 7 [] 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). [] BY FACSIMILE — I 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: January 4, 2016 ( War H. WINETROUB -10- . MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS’ FEES CGC-11-514980