On June 03, 2020 a
Motion,Ex Parte
was filed
involving a dispute between
Arata, Laura,
Peninsula Open Space Trust,
and
Arata, Laura,
Arata, Louis J.,
Arata, Marie Joanne,
Does 1-20,
John And Grace Arata 2004 Trust,
Mcnabb, Ernest J.,
Redwood Trust Deed Services, Inc., A California Corporation,
for (26) Unlimited Other Real Property
in the District Court of San Mateo County.
Preview
1 TAMARA S. GALANTER (SBN 142532)
SARA A. CLARK (SBN 273600)
2 AARON M. STANTON (SBN 312530)
SHUTE, MIHALY & WEINBERGER LLP
3 396 Hayes Street
San Francisco, California 94102
4 Telephone: (415) 552-7272
Facsimile: (415) 552-5816
5 Galanter@smwlaw.com
Clark@smwlaw.com
6 Stanton@smwlaw.com
7 Attorneys for Plaintiff PENINSULA OPEN
SPACE TRUST
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN MATEO
11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349
12 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND
MOTION FOR ATTORNEYS’ FEES AND
13 v. COSTS
14 REDWOOD TRUST DEED SERVICES, Date: June 24, 2022
INC., a California Corporation; Time: 9:00 a.m.
15 ERNEST J. MCNABB, individually and Dept.: 21
as Trustee of the Ernest J. McNabb Judge: Hon. Robert D Foiles
16 Revocable Living Trust Dated
11/19/1990; LOUIS J ARATA, Filed Concurrently with Memorandum of
17 individually; LAURA ARATA, Points and Authorities in Support of
individually, and as sole successor Plaintiff’s Motion for Attorneys’ Fees and
18 trustee of the John and Grace Arata Costs; Declaration of Sara A. Clark;
2004 Trust Executed August 11, 2004; Declaration of Misti M. Schmidt; [Proposed]
19 MARIE JOANNE ARATA, individually, Order re Attorneys’ Fees and Costs
and as the Representative of the Estate
20 of Gary J. Arata, Deceased; and DOES
1-20.
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Defendants.
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Plaintiff’s Notice of Motion and Motion for Attorneys’ Fees and Costs
Case No. 20-CIV-02349
1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT at 9:00 a.m. on June 24, 2022, or as soon thereafter
3 as this matter may be heard, in Department 21, Courtroom 2J of the San Mateo County
4 Superior Court, located at 400 County Center, Redwood City, CA 94063, Plaintiff
5 Peninsula Open Space Trust (“POST”) will and hereby does move this Court for an award
6 of its attorneys’ fees and costs from Defendant Ernest McNabb (“McNabb”) for POST’s
7 successful enforcement, in the above-captioned action, of a conversation easement that it
8 holds over the Arata Ranch (“Property”).
9 This motion is made on the grounds that POST has prevailed in this litigation.
10 POST brought this action to halt McNabb’s efforts to force a foreclosure sale of a portion of
11 the Property. POST’s conservation easement prohibits any sale of the Property except as a
12 whole; McNabb’s threatened sale would have violated the conservation easement. POST
13 obtained a preliminary injunction preventing a foreclosure sale of a portion of the Property
14 pending final judgment. That injunction remained in place until the Property was sold as
15 a whole and McNabb’s loan was repaid. Thus, POST completely achieved its litigation
16 objectives.
17 As a successful party in this litigation, POST is entitled to a fee award on three
18 separate grounds. First, Civil Code section 815.7 entitles POST to attorneys’ fees and costs
19 for successful enforcement of a conservation easement. Second, the conservation easement
20 itself expressly entitles POST to recover attorneys’ fees and costs for its enforcement.
21 Third, POST satisfies the requirements for an award of attorneys’ fees and costs under
22 Code of Civil Procedure section 1021.5, California’s private attorney general statute.
23 POST seeks fees and costs in the amount of $366,860.35. This includes (1) a
24 “lodestar” amount of $281,099.50 for 460.8 hours of legal services; (2) litigation costs and
25 expenses of $1,431.00; and (3) a lodestar enhancement, or multiplier, of 1.3 to account for
26 the complexity, public importance, and partially contingent nature of this case.
27 This motion is based on this Notice of Motion, the accompanying Memorandum of
28 Points and Authorities, the Declaration of Sara A. Clark, the Declaration of Misti M.
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Plaintiff’s Notice of Motion and Motion for Attorneys’ Fees and Costs
Case No. 20-CIV-02349
1 Schmidt, all pleadings and papers on file in this action, all admissible evidence presented
2 at the hearing, oral argument by counsel at the hearing, if appropriate, and upon such
3 other matters as may be presented to the Court at the time of the hearing.
4 DATED: April 15, 2022 SHUTE, MIHALY & WEINBERGER LLP
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By:
7 TAMARA S. GALANTER
SARA A. CLARK
8
AARON M. STANTON
9
Attorneys for Plaintiff PENINSULA OPEN
10 SPACE TRUST
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1486036.1
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Plaintiff’s Notice of Motion and Motion for Attorneys’ Fees and Costs
Case No. 20-CIV-02349
Preview
1 TAMARA S. GALANTER (SBN 142532) SARA A. CLARK (SBN 273600) 2 AARON M. STANTON (SBN 312530) SHUTE, MIHALY & WEINBERGER LLP 3 396 Hayes Street San Francisco, California 94102 4 Telephone: (415) 552-7272 Facsimile: (415) 552-5816 5 Galanter@smwlaw.com Clark@smwlaw.com 6 Stanton@smwlaw.com 7 Attorneys for Plaintiff PENINSULA OPEN SPACE TRUST 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 PENINSULA OPEN SPACE TRUST, Case No. 20-CIV-02349 12 Plaintiff, PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR ATTORNEYS’ FEES AND 13 v. COSTS 14 REDWOOD TRUST DEED SERVICES, Date: June 24, 2022 INC., a California Corporation; Time: 9:00 a.m. 15 ERNEST J. MCNABB, individually and Dept.: 21 as Trustee of the Ernest J. McNabb Judge: Hon. Robert D Foiles 16 Revocable Living Trust Dated 11/19/1990; LOUIS J ARATA, Filed Concurrently with Memorandum of 17 individually; LAURA ARATA, Points and Authorities in Support of individually, and as sole successor Plaintiff’s Motion for Attorneys’ Fees and 18 trustee of the John and Grace Arata Costs; Declaration of Sara A. Clark; 2004 Trust Executed August 11, 2004; Declaration of Misti M. Schmidt; [Proposed] 19 MARIE JOANNE ARATA, individually, Order re Attorneys’ Fees and Costs and as the Representative of the Estate 20 of Gary J. Arata, Deceased; and DOES 1-20. 21 Defendants. 22 23 24 25 26 27 28 Plaintiff’s Notice of Motion and Motion for Attorneys’ Fees and Costs Case No. 20-CIV-02349 1 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT at 9:00 a.m. on June 24, 2022, or as soon thereafter 3 as this matter may be heard, in Department 21, Courtroom 2J of the San Mateo County 4 Superior Court, located at 400 County Center, Redwood City, CA 94063, Plaintiff 5 Peninsula Open Space Trust (“POST”) will and hereby does move this Court for an award 6 of its attorneys’ fees and costs from Defendant Ernest McNabb (“McNabb”) for POST’s 7 successful enforcement, in the above-captioned action, of a conversation easement that it 8 holds over the Arata Ranch (“Property”). 9 This motion is made on the grounds that POST has prevailed in this litigation. 10 POST brought this action to halt McNabb’s efforts to force a foreclosure sale of a portion of 11 the Property. POST’s conservation easement prohibits any sale of the Property except as a 12 whole; McNabb’s threatened sale would have violated the conservation easement. POST 13 obtained a preliminary injunction preventing a foreclosure sale of a portion of the Property 14 pending final judgment. That injunction remained in place until the Property was sold as 15 a whole and McNabb’s loan was repaid. Thus, POST completely achieved its litigation 16 objectives. 17 As a successful party in this litigation, POST is entitled to a fee award on three 18 separate grounds. First, Civil Code section 815.7 entitles POST to attorneys’ fees and costs 19 for successful enforcement of a conservation easement. Second, the conservation easement 20 itself expressly entitles POST to recover attorneys’ fees and costs for its enforcement. 21 Third, POST satisfies the requirements for an award of attorneys’ fees and costs under 22 Code of Civil Procedure section 1021.5, California’s private attorney general statute. 23 POST seeks fees and costs in the amount of $366,860.35. This includes (1) a 24 “lodestar” amount of $281,099.50 for 460.8 hours of legal services; (2) litigation costs and 25 expenses of $1,431.00; and (3) a lodestar enhancement, or multiplier, of 1.3 to account for 26 the complexity, public importance, and partially contingent nature of this case. 27 This motion is based on this Notice of Motion, the accompanying Memorandum of 28 Points and Authorities, the Declaration of Sara A. Clark, the Declaration of Misti M. 2 Plaintiff’s Notice of Motion and Motion for Attorneys’ Fees and Costs Case No. 20-CIV-02349 1 Schmidt, all pleadings and papers on file in this action, all admissible evidence presented 2 at the hearing, oral argument by counsel at the hearing, if appropriate, and upon such 3 other matters as may be presented to the Court at the time of the hearing. 4 DATED: April 15, 2022 SHUTE, MIHALY & WEINBERGER LLP 5 6 By: 7 TAMARA S. GALANTER SARA A. CLARK 8 AARON M. STANTON 9 Attorneys for Plaintiff PENINSULA OPEN 10 SPACE TRUST 11 1486036.1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Plaintiff’s Notice of Motion and Motion for Attorneys’ Fees and Costs Case No. 20-CIV-02349