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Advantage v. Hill Farrer & Burrill LLP (In re Cont’l Coin Corp.), Case No.: 1:00-bk-15821-GM | Casetext Search + Citator

24

Chapter 11

MEMORANDUM OF OPINION REGARDING

PLAINTIFF’S MOTION FOR ATTORNEYS

FEES

On December 16, 2011 Defendant Nancy Zamora ( “ Zamora ” ), in her functionality as chapter 11 regent, filed a counter-claim in opposition to Plaintiff Rodger Advantage ( “ Advantage ” ) and a Grievance in opposition to Daniel McCarthy ( McCarthy ” ) and Hill, Farrer & Burrill LLP ( “ HFB ” ). The Co-Defendants filed their solutions to the criticism and on February 17, 2012 they filed a additional gesture to strike the counter-claim and criticism pursuant to Cal.Code Civ. Proc. §425.16 ( the “ anti-SLAPP movement ” ). On April 30, 2012, the Court docket entered its Memorandum of Opinion and its Order granting the movement and putting the counterclaim/criticism pursuant to Cal.Code Civ. Proc. §425.16. On Might 30, 2012 the Co-Defendants filed this gesture for charges beneath Cal.Code Civ. Proc. §425.16 ( coulomb ). On June 27, 2012, a movement for keep pending invoke was denied, as was the gesticulate to withdraw the motion for charges. On Might 6, 2013 the solicitation was dismissed by the District Court docket for the failure of Zamora to seasonably file her hatchway transient. 1:07-ap-1291-GM, dkt. 37. Until in another way specified, all docket references are to this adversary go. Advantage continued to be represented by HFB, however McCarthy and HFB had been represented by Waxler Carner & Brodsky LLP. For that purpose, some paperwork had been filed collectively and a few had been filed in duplicate on behalf of every of the 2 teams of defendants. The place acceptable, Advantage, McCarthy, and HFB will probably be collectively known as “ co-defendants. ” Dkt. 53.

Dkt. 63, 64. Dkt. 90, 91. 1:12-cv-04981-PA. The movement for charges was continued from clock time to clock time with the ultimate transient being filed on August 24, 2012. For the hear on July 31, 2012, the Court docket issued the come uncertain rule ( typographic errors corrected ) :

I beforehand denied a keep as to the liquidation of the charges. There isn’t any movement to remain fee of them.
The Advantage events are entitled to their charges because the prevailing get together on the anti-SLAPP movement. The appliance states that Hill Farrer did the analysis, drafting, and arguing each by itself behalf and on behalf of Advantage and thus it allotted half of the time to Advantage and half to the agency. It’s not in search of reimbursement for the half allotted to the agency since a regulation agency shouldn’t be entitled to get better its charges as prevailing get together beneath the anti-SLAPP statute for companies carried out by a member of that agency. Carpenter & Zuckerman, LLP v. Cohen, 195 Cal.App.4th 373 (2011).
In opposition, the Trustee argues that Advantage shouldn’t be the prevailing get together as a result of the matter is on enchantment; there might be no restoration for the charges billed by Waxler, Carner & Brodsky as a result of it represented Hill Farrer and McCarthy, not Advantage; there can’t be a restoration for charges and prices associated to the non-anti-SLAPP causes of motion; and there aren’t any time entries solely for the anti-SLAPP movement on behalf of Advantage.
The Waxler and H&F reply covers quite a lot of grounds. As to jurisdiction, this isn’t the vacating or modification of an order on enchantment, however the enforcement of 1. Additionally they request an extra award of charges of $5,047.50 for the anti-SLAPP movement and this charge movement in addition to $2,177.50 for opposing the movement for keep. As to the truth that Waxler and H&F weren’t talked about within the Memorandum of Opinion, it didn’t must particularly permit charges and would solely preclude the request if it so acknowledged, which it didn’t. The one charges that H&F
request are these truly paid to Waxler. The fee of charges shouldn’t be stayed pending final result of the enchantment.
Proposed Ruling
The Court docket is well-aware of the pending enchantment and has beforehand determined that it’s acceptable to liquidate the attorneys’ charges. There isn’t any keep pending enchantment as to that. I’ve not but determined whether or not it’s acceptable to permit execution on the decided quantity and there’s no movement on that difficulty for a keep pending enchantment. As to jurisdiction, this isn’t a modification of the prior order, however enforcement of it.
There isn’t any dispute that Advantage is entitled to attorneys’ charges as soon as he has been designated because the prevailing get together. Hill Farrer and McCarthy (collectively H&F) had been named in claims 4, 6, 7, 8, and 9, all of which had been dismissed in opposition to H&F in that the Trustee didn’t meet her anti-SLAPP burden. (doc. 64, 17:9-12). Though different grounds for dismissal are mentioned within the memorandum of opinion, they don’t vitiate the ruling that the third get together declare is dismissed beneath anti-SLAPP. Nevertheless it’s true that though the memorandum and the order particularly order Advantage to hunt his charges, they don’t preclude H&F from doing so.
Since H&F had been solely named within the anti-Slapp causes of motion, there isn’t a purpose to apportion charges paid to an outdoor agency (WCB) for bringing the movement to dismiss. Andrew Waxler supervised the entire means of the opposition, which can have been restricted to the H&F movement, but additionally included the Advantage one. Since that is an outdoor agency, H&F is entitled to recoup the charges paid, as is Advantage.
Exhibit A to the charge movement signifies that $5,047.50 of the time (and prices, I feel) are attributable to the anti-SLAPP movement. Whereas these are summarized within the Waxler declaration, the person time entries are usually not highlighted, so I can’t inform that are included. And it’s seemingly that the work on the anti-SLAPP and different elements of the movement are inseparable given the best way that the time information had been saved.
The allocation of the H&F charges between that agency and Advantage as to the anti-SLAPP movement is suitable. Nevertheless, Advantage shouldn’t be entitled to his charges on the movement to dismiss as to claims 1, 2, and three (declare 10 was additionally dismissed, however that was as a result of dismissal of different claims). My evaluation of the Movement (doc. 53) exhibits that the half that involved the primary and second causes of motion are set forth in pp. 17-20. The remainder of the arguments are the premise of the anti-SLAPP movement, which required that the Court docket decide whether or not the plaintiff has a chance of prevailing on every declare asserted.
There isn’t any dependable approach to apportion the requested charges, so the court docket will use the considerably crude methodology of dividing them by advantage of the quantity of pages attributed to them. There are twenty pages of regulation and argument on this movement of which 4 are in regards to the first and second causes of motion. Thus, I maintain that 20 p.c of the charges attributable to the movement, its argument and look are for non-anti-SLAPP work and no lawyer’s charges might be allowed for these. Of the remaining 80 p.c. half are for work achieved on behalf of Advantage and the opposite half for H&F.
As to the Waxler charge request, the entire charges within the preliminary utility had been $7,548. Since 80 p.c of that is $6,038.40 and this exceeds the requested quantity of $5,047.50, I’ll permit $5,047.50 plus half the prices which will probably be $44.22. All of
the supplemental charges are coping with anti-SLAPP and they’re allowed as requested within the quantity of $2,177.50. Thus the entire charges payable to Waxler Carner Brodsky, LLP is $7,269.22.
As to the opposite particular objections to the charges, these are overruled.
Making use of the above method to the H&F charge request, the preliminary request is for a complete of $11,594 (previous to the courtesy low cost). Half of that’s attributable to H&F’s personal movement, leaving $5,797. Eighty p.c is for the anti-SLAPP work, which finally ends up being $4,637.60 in charges and half the prices at $22.52. The supplemental charge request for $6,595 is all for anti-SLAPP and will probably be divided in half in order that $3,297.50 is attributed to Advantage as are half the prices at $5.45. Thus the entire charges payable to Hill, Farrer & Burrill LLP is $7,963.07.

At that listening to the Court docket ordered that the charges ascribable to the Waxler agency could be $ 7,313.44, however the quantity because of HFB was submitted with a last examination confrontation transient due by August 17, 2012. On August 17 Zamora filed her supplementary resistance and on August 24, 2012 the co-Defendants filed their reply to the auxiliary opposition. Dkt. 99, 100. The write out as to HFB ‘s charges was the entire that must be paid for getting ready the movement for charges, reviewing the resistance, getting ready the reply, and attending the listening to. HFB in addition to identified that the uncertain rule as to the charges for the anti-SLAPP movement itself had ignored an bill within the measure of $ 9,057. transcript of earshot of seven/31/12 connected to dkt. 99, Ex. A, 5:17-7:5. Id., Ex. A, 7:9-25.
— — — — In violation of a self-imposed observe that I’ve employed since my early days on the bench, I didn’t proceed the July 31 hear and, sadly, this matter simply dropped off my calendar and out of my chain of reference level. I once more turned aware of it after the dismissal of the entice and am now ruling.

Zamora’s Supplemental Opposition

Zamora objects to the Court docket ‘s purpose allotment method, however doesn’t recommend an alternative choice. nevertheless, she states that even when the Court docket makes use of the venture one, it ought to in addition to embrace the third gear explanation for motion with the primary two since that was in addition to a non-anti-SLAPP lawsuit of motion. The third marketing campaign of motion was primarily based on Plaintiff ‘s rupture of obligation as a penis of the Creditor ‘s Committee, which relies on federal chapter regulation. The arguments as to the third causal agent of army motion within the motion to dismiss had been improperly included with these primarily based on state regulation, nevertheless it was truly primarily based on federal chapter regulation. Thus an allowance have to be made for this. past that, the Court docket was right that there might be no restoration for charges incurred for self-representation by McCarthy and HFB. McCarthy ‘s argument on the listening is inaccurate. The time spent by McCarthy and HFB in getting ready the charge obvious movement and the append and opposing the Trustee ‘s movement for keep pending enchantment weren’t companies alone for Advantage. These had been in addition to to get better charges that Waxler billed HFB. And the Trustee ‘s motion for keep pending enchantment associated to greater than honest the charge movement.

Reply to the Supplemental Opposition

Defendants request a sum award of $ 19,226.95 for illustration by HFB of Advantage and an additional $ 7,313.44 for the Waxler agency ‘s illustration of HFB and McCarthy. Every is damaged down into separate exercise teams : Illustration of Advantage:
Anti-SLAPP gesture – $ 7,500.95
Movement for Attorneys ‘ Charges – $ 5,131.00
Opposition to Movement for Keep – $ 6,595.00
Illustration by Waxler of HFB and McCarthy
Anti-Slapp movement – $ 5,047.50 Opposition to Movement for Keep – $ 2,177.50
The Waxler complete shouldn’t be in quarrel and was ordered by the Court docket on the July 31 listening to. As to the Advantage matter on the Anti-SLAPP motion, as argued on the listening to, the Court docket made a mathematical error by not together with among the invoices, so the start megascopic quantity ought to have been $ 20,651. then the Defendants had diminished it by 50 share to account for work carried out on behalf of HFB. The Court docket then diminished that by one other 20 share to element within the non-anti-SLAPP causes of motion. No additional discount must be required. As to the gesture for attorneys ‘ charges, these could be account payable solely to Advantage to compensate him for what he has truly paid to HFB for employment carried out on that movement. This gesticulate was solely in pursuit of charges truly awarded by the Court docket and never of any unawarded charges. Thus not one of the lawyer fourth dimension was in self-representation as a result of the precise tip award didn’t embrace any charges for self-representation ( having already voluntarily been diminished by 50 share for that return ).

As to the confrontation to the obvious movement for keep, this associated again to the movement for lawyer ‘s charges and the charges truly awarded by the Court docket, which embrace no award for self-representation.

The Ruling

As to self-representation, that is accounted for by the lower of fifty share on the anti-SLAPP motion. There isn’t any self-representation difficulty on the gesture for lawyer ‘s charges, which was solely to reimburse Advantage. The opposition to the keep covers each the anti-SLAPP movement and the movement for lawyer ‘s charges, however I discover that the Waxler agency dealt with illustration of HFB and thus there was no self-representation element on that. As to a far discount for oeuvre achieved on the third gear explanation for carry by means of, I’ve acknowledged that I’m utilizing a really crude measurement, however it’s the finest that I can discover. The third base marketing campaign of motion is included as depart of the movement to strike with the fourth by means of one-tenth causes of motion on pages 8-11. This truly covers alone three pages of textual content. No extra work was achieved as to the third explanation for pure course of – it merely floated together with the general argument. Due to this fact no far allotment will probably be made as to the third gear causal agent of carry by means of. An offspring has been raised as to the time of the fee. Co-Defendants don’t dispute that the fee will probably be from the Property since Zamora introduced the criticism/counter-claim solely in her capability because the chapter 11 Trustee. Though there seems to be ample monies within the property to pay all administrative bills in full, Zamora argues that for the reason that Court docket has deferred funds her charges, it’s permit to defer these. The distinction is that this criticism/counter-claim stands alone and separate from the way more complicated points on this adversary proceed. The anti-SLAPP charges are mandated by codified. due to this fact, vitamin a quickly because the order on this movement turns into last, the Trustee is to distribute to HFB and to the Waxler tauten the quantities set forth within the Order. The award for the illustration of Advantage by HFB will probably be $ 19,226.95. _______________
Geraldine Mund
United States Chapter Choose

NOTICE OF ENTERED ORDER AND SERVICE LIST

Discover is given by the court docket {that a} sagacity or order entitled (specify ) : _ MEMORANDUM OF OPINION REGARDING PLAINTIFF’S MOTION FOR ATTORNEYS FEES was entered on the date indicated as a Entered @ on the primary web page of this judgment or order and will probably be served within the method acknowledged under : 1. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF) b Pursuant to controlling normal Orders and LBRs, the waive doc was served on the observe individuals by the court docket by way of NEF and hyperlink to the judgment or holy order. As of ( date ) _______________, the hint individuals are presently on the Digital Mail Discover Checklist for this chapter case or adversary continuing to obtain NEF an infection on the e-mail addresses acknowledged under. • Daniel J McCarthy dmccarthy @ hillfarrer.com, spadi I la @ hillfarrer.com ; agenda @ hillfarrer.com • Anthony N Zamora zamora3 @ aol.com [ ] Service knowledge continued on connect foliate 2. SERVED BY THE COURT VIA UNITED STATES MAIL: A imitate of this notification and a real copy of this opinion or regulate was despatched by United States mail, top notch, postage postpaid, to the surveil individuals and/or entities on the addresses indicated under : Zamora & Hoffmeier APC
633 W. fifth Road Suite 2600
Los Angeles, CA 90071
Andrew Waxler
1960 E. Grand Ave. Suite 1210
El Segundo, CA 90245

[ ] Service data continued on connect web page 3. TO BE SERVED BY THE LODGING PARTY: Inside 72 hours after reception of a duplicate of this judgment or ordering which bears an a Entered @ postage, the get together lodging the judgment or order will serve a whole replicate bearing an a Entered @ stamp by United States mail, in a single day mail, facsimile transmittance or electronic message and file a proof of service of the enter order on the observe individuals and/or entities on the addresses, facsimile transmission numbers, and/or electronic message addresses acknowledged under : [ ] Service data continued on connected web page

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