BriefReplyCal. Super. - 5th Dist.June 6, 2016Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT MIKE MURPHY’S ENTERPRISES, INC., a California Corporation, Plaintiff and Appellant v. FINELINE INDUSTRIES, INC., a California Corporation, FINELINE INDUSTRIES, LLC, a California Limited Liability Corporation, and FINELINE INDUSTRIES, LLC, a Florida Limited Liability Company, Defendants and Respondents. Court of Appeal Case No. F080503 Merced County Superior Court Case No. 16CV-01617 ELECTRONICALLY FILED Merced Superior Court 7/27/2020 2:45 PM Amanda Toste Clerk of the Superior Court By: Kristifer Hew, Deputy Appeal from Judgment of the Superior Court State of California, County of Merced The Honorable Brian McCabe, Judge APPELLANT’S REPLY BRIEF ATTORNEYS: FOR PLAINTIFF AND APPELLANT MIKE MURPHY’S ENTERPRISES, INC. *Nicholas D. Heimlich (SBN 233232) Law Offices of Nicholas D. Heimlich 5595 Winfield Blvd., Suite 110 San Jose, California 95123 Phone (408) 457-9364, Fax (408) 841-7630 Email nickheimlich @nickheimlichlaw.com 1/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Alan Heimlich (SBN 213390) Heimlich Law, PC 5595 Winfield Blvd., Suite 110 San Jose, California 95123 Phone (408) 253-3860, Fax (408) 257-9904 Email alanheimlich@heimlichlaw.com FOR DEFENDANTS AND RESPONDENTS FINELINE INDUSTRIES, LLC (A FLORIDA LIMITED LIABILITY COMPANY), FINELINE INDUSTRIES, INC. (CA), FINELINE INDUSTRIES LLC (CA) Matthew W. Quall Esq. SBN 183759 John M. Cardot, Esq. SBN 155715 Quall Cardot LLP 205 E. River Park Circle, Suite 110 Fresno, CA 93720 Phone: 559-418-0333 Fax: 559-418-0330 Email: jcardot@quallcardot.com mquall @quallcardot.com 2/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) TABLE OF CONTENTS APPELLANT’S REPLY BRIEF ..ccuscssssssssnssssssassossesssssensonserssvesseosssnsenass 1 TABLE OF CONTENTS .cvanassmsaasssmamsveasasassseasessasvssenes 3 TABLE OF AUTHORITIES iicusssssnssmsssussnsssssssssssssssvessssssssssisss 7 I. APPELLANT’S REPLY BRIEF .......cconiinicsuecsnicsnncsanssncssassnssonses 9 II. RESPONDENTS’ INTRODUCTION AND SUMMARY LEAVES OUT IMPORTANT FACTS ..uoeuvnnrnnennesnnsanesanesanenns 9 III. RESPONDENTS MISSTATE THE TRIAL DAYS AND THE CORPORATE STATUS. ....couerernennrnnennnnsaessnnssnssnsssnsssssssssssssans 11 1. Respondents misstate items as facts in an attempt to mislead this COUT. «een eeee sees e eee eee eee eee e settee eee sees e eae eemaee se nnas eames sense sees eenns 12 2. Respondents misstate performance, “astronomical attorney fees”, and tendering Offers. ........oocciiiiiiiiiiii eee 12 3. The Notices of Default were all proper per the License Agreement. 14 IV. RESPONDENTS MISSTATE THE STANDARD OF REVIEW20 V. RESPONDENTS MISSTATE APPELLANT’S ARGUMENTS AND THE STANDARD OF REVIEW ........iinseccsnncseecsanes 20 1. Respondents failed on the gravamen of the Complaint, namely the issue of paying royalties OWed. ........cc.eeevuieerniieirnieieniiee cece e e 21 2. No § 998 pre-offer costs were considered which is an error............ 21 3. Appellant did not confuse the cases Hsu and Scoft................cc........ 22 4. Respondents did not prevail on its litigation objectives................... 22 3/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 5. Respondents are wrong - Appellant prevailed on 60 affirmative QE EIS ES. eee eee eee eee eee eee eee eee eee eee eee eee eee eee e aaa 23 6. Appellant’s litigation goal was $53K not what Respondents repeat again $87. 7M and S512K. ...cc.ooiiviiiieieeeee eee e e e e 24 7. Appellant’s state the standard of review and why before each AIS CUSSION. cence cette ee eee ee eee eee tees eee e eee e eee eeee ee eeanae ee eenenaaees 24 VI. THE COURT FAILED TO CONSIDER ITEMS REQUIRED BY LAW TO BE CONSIDERED IN A CCP 998 RULING ...... 25 I. Respondents mixed results analysis misstates the law..................... 25 2. Service of the 998 was made on July 23, 2016. ........cccccvveevireennnnenn. 26 3. The lower court did not consider Appellant’s pre-offer costs and ALLOTNICY TEES. counvtiieiiiiieiiee ete eects eee eres eee esas 27 4. Respondents groupings of expenses is misleading, wrong, and implies entries that were NOt Charged. wow sss sss mame 31 5. Respondents assumption on the period of interest being calculated is wrong, as is their adjustment. ............ccooovvieriiiiiniienie eee, 33 VII. RESPONDENTS CALLING ALL FEES AND COSTS NECESSARY DOES NOT MAKE IT SO AND RESPONDENTS HAVE NOT ADDRESSED THE ISSUES 1. Plaintiff “MMEI” should not have to pay for Defendants deals with “Jessen” a third party not associated with the litigation. ......................... 34 2. Respondents fail to explain to this court why Respondents’ court sanction should be paid by Appellant. ...........ccoccueeriiiinniiiniiiiieiiieee, 38 4/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 3. Respondents confuse a Joint Defense Agreement with patent COUNSEL. eee eee eee eee eee eee eee eee eee eee eee eee eee ee este e eee eeanee ee eeannaaes 39 4. Respondents do not respond to the issues raised and are double QIPPING. «eters sates sates sate eres e sna e eens 40 5. Pro hac vice costs are not recoverable. ........cooovueeeiieiiieiiiiieeeeeeenn. 41 6. Respondents attempt to fool this Appeals court by conflating issues and making up what Appellant said..........ccccceevvieiiiiieiiiiie ieee, 42 7. Respondents misstate the issue of trying to depose opposing counsel in an attempt to convince the court that these are allowable costs. ......... 44 8. Convenience fees are not recoverable under 1033.5............c..c..... 44 9. The court did not order any fees of expert witnesses so they are not AlloWable UNAET 1033.5. canes eee eee evens 45 10. Plaintiff should not have to pay for Defendants failed motions to 11. Respondents prepared but did not file some motions, and were unsuccessful on Others. «o.oo... 46 12. Fineline’s attorneys block billed which is not proper. ..................... 47 13. Respondents’ use of a secret decoder ring to figure out costs/fees is a Charade. «cei cece a 47 14. Respondents’ errant entry is explained and accepted. ..................... 48 15. Jurisdictional issues did not pervade this case. ........cccceeevveerereennnne. 48 16. The lower court’s jurisdiction was established when the suit was filed in 6/2016 and no jurisdictional analysis was needed more than 3 years later in 9/2019. ...cc.uiiiiiiiiie eee e e 49 5/57 Th is e - c o p y is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 17. The County of Tulare was not involved in this lawsuit yet the lower court allowed those costs to be billed to Appellant. ...........ccccceveereneennnne. 50 VIII. THE ORDER GRANTING DEFENDANTS' MOTION TO STRIKE OR TAX PLAINTIFF’S COSTS IS IN ERROR AS IS THE AMENDED JUDGMENT .....ccceeneeiensuecsancsancsascsassnsssassonces 52 IX. THERE ARE TWO JUDGMENTS AND THERE ARE STRICT PROCEDURAL DEADLINES FOR FILING APPEALS AND APPELLANT FOLLOWED THEM.......ccccceceessersensannsannsancsacssaes 53 X. RESPONDENTS MISSTATE THE RECORD AND THEN IMPLY THAT WHICH IS NOT CORRECT, THAT IS “SEVERAL” DOES NOT MEAN “ALL”. ..ucccceesuensuecsanssanssaesseces 54 XI. JUST BECAUSE THE LOWER COURT MAY HAVE CONSIDERED AN ISSUE IT DOES NOT PRECLUDE APPELLANT FROM RAISING IT ON APPEAL..................... 55 XIE NOTA BENE. aaa cmmsasassssisiy 56 CONCLUSION sussssnnmnsussisssannivasasnmsssissaiassssiasssmsess 56 CERTIFICATE OF WORD COUNT .......cuvinvernennensnnsnnsannsansssessanssaee 57 6/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) TABLE OF AUTHORITIES California Supreme Court Cases Camper v. Workers' Comp. Appeals Bd. (1992) 3 Cal.4th 679................... 27 Hsu v. Abbara (1995) 9 Cal. 4th 863 .......coviiviiiiiiieeeeeee 22,26 Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266 ............ 27 Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4" 1103....... 10, 22, 25 California Appellate Court Cases Diggs v. Arnold Bros., Inc. (1933) 132 Cal.App. S18....coociiiiiiiiiieeen. 24 Filipescu v. Cal. Housing Authority (1995) 41 Cal. App.4th 738................ 54 Heck v. Heck Bros. (1943) 57 Cal. App.2d 599 .......oovviiiiiiiiiiiieiieeee, 53 Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761 ........... 45 Laraway v. Pasadena Unified School District, 98 Cal.App.4th 579, 583 (2002) 1. sees estate eee been 54 Learned v. Board of Ed. of City and County of San Francisco (1940) 37 CalLAPP.2A SOT ene eee ees 53 Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90.......... 24 Maynard v. BTI Group, Inc. (2013) 216 Cal. App.4th 984...........ccevvveennene. 22 Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658 ........... 24 Codes CGP § L027 cons cmos. ams ts ass 5.080050 50, 850 10, 29, 30 CCP § 1032... 10, 29, 30 CCP § 1033.5 eee eee eee eee eee eee ee rear es passim CCP § 1033.5(2)(4) weeveeneeieeieeieeie e cts sites sat s sree sree ee 44 CCR § 1038.1) sss can ascamssss. cu srs ctansosss. aa 0855005m0.850. 25800088505 0 0 SEAS 45 CCP § 1033.5(D)(2) weeveenveeieeieeieeieeie eee steers st er r esas 43 7/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) CCP § 1033.5(C)(2) weeueeeueeeieeeiieeiie eee 45, 46 CCP § 904. 1(2)(1) weenie etree seee ees cesre ee cesaeeeees 53 CCP § 904. 1(2)(2) weevveeireerieniieiteie se s s ttee sees sa een se n 53 CCP § 908... cee eee eee e ee te aera se seaenens passim Civil Code § 1717 cuits 10, 29, 30 Evidence Code § 1152... eects eevee eee eee 18, 19 Evidence Code § 500 ........uuuiiiiiiiiiiiiieeee eee eee eee eee e e ev e 24 8/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) I. APPELLANT’S REPLY BRIEF MIKE MURPHY’S ENTERPRISES, INC. (MMEI), the Appellant, hereby provides their Appellant’s Reply Brief and Appendix (ARA). Respondents are referred to as Fineline, and/or Defendants. Abbreviation code: RT = Reporter’s Transcript AA = Appellant’s Appendix ARA = Appellant’s Reply Appendix (supplied herewith) Case F080048 filings and Appendix are incorporated herein. F080048-AA = Appellant’s FO80048 Appendix Incorporated by Reference Ex. =Exhibit (in Appendix #, the trial Exhibit # is noted in the description) II. RESPONDENTS’ INTRODUCTION AND SUMMARY LEAVES OUT IMPORTANT FACTS Respondents in their brief RB p10 at I. INTRODUCTION & SUMMARY OF THE ARGUMENT - mislead this court by leaving out important facts. Respondents harp on Appellant prevailing on the only count that involved the gist of the lawsuit which was Fineline’s refusal to pay royalties even when they knew they were owed. The remaining claims were de-minimis claims that yielded Respondents nothing. Respondents failed to mention that the court found their alleged strong arm “accord and satisfaction” argument to be a non-starter. Likewise, Respondents fail to inform this court that Appellant defeated all 60 affirmative defenses raised by Respondents. 9/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Respondents repeat the tired argument that Appellant used the wrong standard of review despite the fact that at the start of every discussion Appellant states the standard of review and why it is the proper standard. There was a prior Judgment in the underlying case issued on 06/25/2019, appeal FO80048 was taken on that judgment. An amended Judgment was issued on 10/17/2019 and the current appeal (FO80503) is on the amended judgment. Respondents make a big deal out of this but California Rules of Court 8.104 has timelines that must be observed for filing notices of appeal and Appellants did so. Respondents mention the rationale for the lower court’s ruling in their favor as the “prevailing” party under Civil Procedure (“CCP”) §§ 1021, 1032, & Civil Code § 1717 as a “mixed results” theory in Scott Co. of California v. Blount, Inc. (1999) 20 Cal. 4™ 1103, 1106 (Scott). What Respondents failed to inform this court is that they presented the lower court with a settlement agreement document which included triple damages for patent infringement rather than the amount stated in the complaint ($53K) for breach of contract. Considering this the “mixed results” analysis is in error because Appellant achieved an award of over $62K in damages so even under this theory Appellant prevailed. As for the CCP § 998 offer of $85K, Appellant did reject it because as will be shown Appellant’s CPA despite not seeing 3 years of boats manufactured came to the conclusion that $85.3K was owed at a minimum (FO80048-AA 2007-2008). Further, the lower court did not consider the pre-offer costs in evaluating the 998 offer and this was in error. 10/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) III. RESPONDENTS MISSTATE THE TRIAL DAYS AND THE CORPORATE STATUS Regarding RB p11 at II. FACTUAL & PROCEDURAL HISTORY Respondents for some reason believe this was a 4 day trial. According to the Reporter’s Transcript it was 6 days (RT 2). Likewise, Respondents in a footnote FN1 (RB p11) attempt to claim there is only a single Fineline entity, while ignoring the fact that Judge Proietti ruled there were three (see Order denying motion to quash AA 4466). Further belying Respondents logic is Respondents’ wrongly charging costs of $880.00 to Appellant for a Fineline Joint Defense Agreement between the three defendants (from AA 1040:19-20 list). Total: $880.00. The Item numbers and costs are: #14 $250, #19 $60, #33 $240, #41 $300, #53 $30. #14 (AA 1067) 6/29/2016 MEK Drafted Jcint Defense Agreement. 1.00 250.00/mr #19 (AA 1067) JMC Considered lawsuit responses and Joint Defense Agreement 0.20 300.00/mr #33 (AA 1068) JMC Worked on Joint Defense Agreement 0.80 300.00/hr #41 (AA 1068) JMC Revised and finalized draft Joint Defense Agreement; Drafted e-mail to 1.00 Attomey Gilchrist 300.00/mr #53 (AA 1069) JMC Drafted e-mail to Singer re: Joint Defense Agreement; Reviewed 0.10 response and executed JDA 300.00/hr 11/57 25000 /Y sooo /9 24000 33 30000 ff 3000 53 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 1. Respondents misstate items as facts in an attempt to mislead this court. Regarding RB p11 at A. The License Agreement & Attorney Fees Clause Respondents conflate filling a ballast tank (Quickfill and Ramfill which are just Fineline made up marketing terms after the License was signed) with what the licensed technology does which is emptying the ballast tank. From claim 1 of the U.S. Patent No. 6,234,099 (‘099 patent) at AA 517 column 4:18-20 said opening on said compartment being adapted to be opened 10 drain out the water at the rear of the water 20 craft while the water craft is in forward motion on a plane, (Highlight added.) Throughout Respondents’ Brief they continue to perpetuate this misstatement without support by saying such things as “Under its terms, the License Agreement is limited to royalties exclusively for MMEI’s Licensed Technology. It does not pertain to Fineline’s Ram Fill technology.” (RB p. 11). Ram Fill is not even mentioned in the License Agreement. There was never any evidentiary hearing about Ram Fill technology, as the trial court didn’t allow such a hearing and refused to hear from experts which would have made it clear that Ram Fill is no different than Quick Fill as both use the patented technology. 2, Respondents misstate performance, “astronomical attorney fees”, and tendering offers. Regarding RB p. 12 at B. Performance under the License Agreement 12/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Fineline leads this court to believe that the License Agreement was performed without problem until they discovered a “bookkeeping error” and forgot to pay for 300+ boats. Not quite. At FO80048-AA 1573 Ms. Penny Murphy of Mike Murphy’s Enterprises Inc. (MMEI) the Appellant first inquired about missing royalty payments in 2013 and was blown off by a Fineline attorney (which was before current counsel became involved). See FO80048-AA 1572. Plaintiff MMEI is a small company whereas Fineline is huge and sold hundreds of millions of dollars in boats, so understandably Ms. Murphy believed they were correct. Fineline only admitted owing royalties after MMEI current counsel got involved and they were given notice of violating the License Agreement, and eventually upon not paying owed royalties their license was terminated. Regarding the alleged “astronomical attorney fees.” letter, it’s just the opposite - that is MMEI wanted to avoid “astronomical attorney fees” as indicated in the first paragraph of the letter from Mike Murphy of MMEI to Rick Lee of Fineline “I would like to discuss with you personally so we do not have to pay astronomical attorney fees.” (Emphasis added.) (FO80048- AA 6597) and testimony (FO80048-AA 6435:10 - 6436:19, FO80048- 6348:13-17). Regarding Fineline’s alleged tender offers to avoid litigation - they were nothing more than strong arm tactics to have MMEI give up its rights. These alleged pre-litigation attempts to pay what was owed is not quite correct as these were past due royalties under the License Agreement (Contract, License) which does not require MMEI to sign a release to get royalty payments due which all these strong arm attempts required. See F080048-A0B p15. 13/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 3: The Notices of Default were all proper per the License Agreement. Regarding RB p12 at C. Litigation & Ensuing CCP § 998 Offer to Compromise As Appellant noted above, Appellant rejected the strong arm offers because they all required a release. Under the License Agreement audit provision (AA 3202 at 15.) a notice was sent to perform an audit. To say the audit did not go well is an understatement. Fineline did not allow MMEI’s CPA, a Mr. Mike Thompson, to take any records, or pictures, etc. Please see the CPA’s report on the failed audit (FO80048-AA 2005). Additionally, Fineline refused to provide information for 3 years of boats. Quite clearly, Fineline had much to hide and did so. Despite this, the CPA determined that at least $85,300.00 was owed (FO80048-AA 2007-2008). Four notices of default were sent and in each, as a courtesy, MMEI was reminding Fineline that under the terms of the License Agreement there was a 10 day cure period. See for example, Notice of Default for Royalties AA 472 where MMEI mentions the 10 day cure period in the License at section 16, see AA 3202. The notice of default for the Royalties owed (AA 472) stated $75,938.05 was due (AA 493 at TOTAL DUE) subject to further review (top of AA 473). Fineline did make efforts to cure some the defaults, but interestingly the main one, that of failing to pay royalties owed, they did not. Rather Fineline continued their strong arm tactics by offering an amount and then stating “In exchange, we will, of course require a release.” The License 14/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Agreement has no such requirement to sign a release in order to get paid royalties due and MMEI declined the strong arm offer. (RT 278:11-23) 4. The lower court allowed Defendants to present on patent scope but denied the same opportunity to Plaintiff thereby denying Plaintiff due process Regarding RB p14 at D. Pre-Trial Orders Excluding Evidence of Patent Damages The in limine motions filed by Fineline were based on an artificial fiction that Fineline created. Quickfill and Ramfill are all marketing terms that are not in the License Agreement and were made up by Fineline after the License Agreement was signed. Curiously once Fineline realized that their 998 offer was going to be beat, they suddenly declared that Ramfill is their technology (not agreed to by the USPTO - see below) and not subject to the License Agreement because it’s patent related and the lower court can’t consider it, even though their course of conduct was to pay the royalty on boats using the claimed Ramfill. Fineline was paying royalties on boats using the alleged Ramfill technology since September of 2013. Now Fineline says that those royalties were paid in error. Somehow the court in its course of conduct analysis did not consider this. Nor did the lower court even allow a hearing on the matter but simply agreed with Fineline and declared that the License Agreement did not cover Ramfill (RF). This is equivalent to saying that a licensee can self-define when it pays royalties by simply changing the name of a product. 15/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) There should have been a hearing on this issue, there was not, and Plaintiff MMEI was deprived of due process. Without a hearing any party to a license agreement that contains a patented technology where there is a failure to pay royalties despite years of payments could simply claim “it’s patent related” and no state court can hear it. Again, the reason Plaintiff filed two lawsuits was because there was breach in the Licensed Technology when Fineline was still under the license agreement and so it was a state breach of contract claim. The federal lawsuit was because after the termination of the License Agreement, Defendants were no longer under the License Agreement but were still using the patented technology - so it was a federal case for patent infringement. Interestingly, the License Agreement makes NO mention of “Quickfill” or “Ramfill” or any other marketing term created as a fiction by Fineline. That is, while the license was effective on April 1, 2010 Fineline did not create the fiction of Ramfill until the middle of this lawsuit and now claims it was known in the 1990’s (Fineline calls it the Wave). The United States Patent and Trademark Office (USPTO) did not find the Wave to be prior art and has awarded MMEI multiple patents on their technology. See Fineline’s attempt to strong-arm MMEI into licensing three new patents U.S. Patent Nos. 8,739,723, 9,045,204, and 9,272,762 (FO80048-AA 6628) rather than the previously Licensed Technology U.S. Patent No. 6,234,099 (FO80048-AA 1484) as Fineline understood the new patents cover filling the ballast tanks. The License Agreement has no marketing terms in it, no “Quickfill”, no “Ramfill”, no “Centurion”, no “Supreme” which are marketing terms of 16/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Fineline and not terms of the License Agreement (FO80048-AA 1484). Fineline draws an unsupported artificial distinction between Quickfill and Ramfill and unilaterally declared Ramfill to not fall under the License Agreement and MMEI was not given an opportunity or even a hearing to dispute that unsupported contention. Further, there is uncontroverted evidence that Fineline paid the royalties on what they now claim are Ramfill boats for years but now claim they were paid in error. One might suspect that when Fineline realized they were going to have to pay for all the boats they wanted to cut the majority of the boats out by making up marketing terms. Both Quickfill and Ramfill deal with FILLING a boat ballast. MMETI’s technology on the other hand deals with EMPTYING a boat ballast which both Quickfill and Ramfill use and therefore are covered by the License Agreement. See AA 517 column 4:18-20 claim 1. “...to drain out the water...” See also AA 512 at ABSTRACT near the end “...to drain out the water.” This is why when the Merced Court refused to even entertain a hearing on the issue or allow the deposition of MMEI’s experts to be taken MMEI asked for removal. In effect the Merced Court basically allowed Defendants to present on patent scope by excluding Ramfill and allowing Quickfill, but not allowing Plaintiffs to present evidence on the same subject. Allowing only one party to discuss an issue is a clear violation of due process. That is why MMEI asked for a change in the law on removing to the Federal Court. As explained in the United States Supreme Court case Gunn v. Minton, 568 U.S. 251 (2013) the court recognized that just such a situation as we have here might occur: “As for more novel questions of patent law that may arise for the first time in a state court “case within a case,” they will at some point be decided by a federal court in the context of an actual patent case, with review in the Federal Circuit.” 17/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Id. at 262. MMEI raised it. The Federal Court refused and remanded the case. See F080048-AOB p 41 at: 11. The Court erred by accepting without evidence or a hearing Defendants’ contention that over half the boats made were excluded from the License Agreement. The in limine motions were based on this lack of due process allowing Fineline to unilaterally declare Ramfill not subject to the License Agreement. 5. New issues are not needed to make motions to vacate or move for a new trial Regarding RB p14 at E. Trial, Judgment, & Post-Trial Motions Respondents appear to imply that because the lower court denied Appellant’s motion for a new trial and to vacate the judgment because the judge did not see “any new issues” is not the standard on appeal. In fact, raising new issues for the first time on appeal is strongly discouraged. 6. $88.5M is inadmissible per Evidence Code § 1152 and is a red herring. Regarding RB p1F. The Trial Court Found Fineline to Be the Prevailing Party 18/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Respondents bring up time and again an $88.5M number from a settlement conference statement. It is entirely inappropriate to bring up settlement discussions to try to determine substantive issues. Evidence Code § 1152 clearly sets forth that negotiations are inadmissible as a basis to determine liability for loss or damage or any part of it. Yet, Defendants flagrantly violated this code section by bringing up settlement discussions. Further, Defendants forgot the context of these, which was a settlement of all claims, including the patent issues, which have different levels of damages than simple breach of contract. The lower court should not have entertained this inadmissible evidence as this will create an environment where parties are unwilling to negotiate or discuss settlement as the figures might be used against them. Accordingly, this $88.5M is a bogus red herring number that should not be used in any “mixed results” analysis of a prevailing party. 7. $512K is another red herring. Regarding RB p15 at F. The Trial Court Found Fineline to Be the Prevailing Party Defendants bring up a figure of $512K in damages again and again. As explained by expert Mr. Thompson, CPA that number was for every boat using the licensed technology (RT 408:1-4). That is, it was for both Quickfill and Ramfill. When the judge decided to kick out Ramfill then on the far right of the Trial Exhibit 34 (the Excel spreadsheet) columns were added to show if a boat was Ramfill or Quickfill. Looking at the far right the Quickfill column amount as of 7/1/2018 was $179,622.44 as testified to by CPA Thompson (RT 390:2-11) not $512K. 19/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Accordingly, just like the $88.5M bogus red herring number above, the $512K number should not be used in any “mixed results” analysis of a prevailing party. 8. The trail court did not consider pre-offer § 998 costs. Regarding RB p15 at F. The Trial Court Found Fineline to Be the Prevailing Party The court did not consider any pre-offer § 998 costs when it made the 998 ruling. That is, it added in no pre-offer 998 costs. Adding in the as noted pre-offer § 998 costs Appellants would have prevailed on the 998. More on this below. IV. RESPONDENTS MISSTATE THE STANDARD OF REVIEW Regarding RB p18 at IV. STANDARD OF REVIEW Respondents without referring to any specific issues but clumping them together lecture this court for what the standard of review should be which Respondents want to be either abuse of discretion or substantial evidence. Appellant before each issue addressed the standard of review and explains why that is the appropriate standard. V. RESPONDENTS MISSTATE APPELLANT’S ARGUMENTS AND THE STANDARD OF REVIEW Regarding RB p19 at V. LEGAL ARGUMENT 20/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Respondents again tell this court what standard of review they want and base their analysis on that standard while ignoring and not addressing Appellant’s arguments about the standard of review. 1. Respondents failed on the gravamen of the Complaint, namely the issue of paying royalties owed. Regarding RB p20 at 1. Appellant Construes the Attorneys’ Fee Clause Too Narrowly The gravamen of this case is that Fineline failed to pay MMEI for royalties owed on using MMEI’s technology. All other issues were de minimis. Respondents tout defensing several insignificant claims of no financial consequence as a reason for being the prevailing party whereas Appellant prevailed on the breach of contract claim for failing to pay royalties owed. Additionally, the court and Respondents forget that Appellant prevailed on 60 affirmative defenses raised by the Respondents. When viewed from an unbiased viewpoint it is clear that Appellant is the prevailing party even under the mixed results theory. 2. No § 998 pre-offer costs were considered which is an error. Regarding RB p22 at 1. Appellant Construes the Attorneys’ Fee Clause Too Narrowly The court in its analysis of the 998 offer failed to use any pre 998 costs to which Appellant is entitled. The actual amounts pre 998 were provided to the court in the form of actual invoices. The court used none whatsoever, not even the required court filing fees were used which were clearly pre 998 offer. This is simply error. 21/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Further, under Scott Co. of California v. Blount Inc. (1999) 20 Cal.4th 1103 Plaintiff is entitled to “recover its preoffer costs”. Id. at 1112. The lower court failed to do this. See AOB p56 at 3. 3. Appellant did not confuse the cases Hsu and Scott. Regarding RB p22 at 1. Appellant Construes the Attorneys’ Fee Clause Too Narrowly First, nowhere in the Judgment or Amended Judgment is Hsu or Scott mentioned. Second, as detailed at AOB p. 56 at 4 and the sections that follow, which clearly show that the only relevant attorney’s fees claim (the breach of contract) was clearly won by Plaintiff. Defendant’s discussion of non attorney’s fees claims or attempts to slice up a breach of contract claim into many claims is simply a distraction. 4. Respondents did not prevail on its litigation objectives. Regarding RB p23 at 2. Appellant’s Argument Misapplies the Applicable Legal Authority on Prevailing Party Determinations Respondents’ Scott and Maynard argument “mixed results” rest on Respondents defensing several non-contract claims whereas Appellant prevailed on the contract claim, which is the gravamen of the Complaint. Those non-contract claims are not statutory nor contract based attorney’s fees claims. Accordingly, their resolution has no bearing on the contractual attorney’s fees and costs clause. Further Appellant defensed Respondents’ 60 affirmative defenses. See AOB p56 at 4 and the sections that follow. 22/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Se Respondents are wrong - Appellant prevailed on 60 affirmative defenses. Regarding RB p24 at 2. Appellant’s Argument Misapplies the Applicable Legal Authority on Prevailing Party Determinations Appellant prevailed on these affirmative defenses against each of the three Defendants (3x) Failure to State a Cause of Action (3x) Statute of Limitations (3x) Waiver (3x) Estoppel (3x) Ratification (3x) Failure to Mitigate (3x) Full Performance (3x) No Breach of Duty (3x) Good Faith (Plaintiff did recover against defendants) (3x) Unclean Hands (3x) Limited Liability (3x) Set Off (3x) Consent (3x) Improper Calculation (3x) Laches (3x) Full Payment (3x) No Punitive Damages (facts were pleaded) (3x) Accord and Satisfaction (3x) Fully paid up (3x) Additional Affirmative Defenses 23/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) The defendants Fineline generally bears the burden of proving its affirmative defenses. (Evidence Code § 500; Sargent Fletcher, Inc. v. Able Corp. (2003) 110 Cal.App.4th 1658, 1667.) That is, it bears the burden of proof on the defense. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 109 (overruled in part on other grounds); Diggs v. Arnold Bros., Inc. (1933) 132 Cal. App. 518, 523.) Here, Fineline failed that burden on every claim. 6. Appellant’s litigation goal was $53K not what Respondents repeat again $87.7M and $512K. Regarding RB p25 at 2. Appellant’s Argument Misapplies the Applicable Legal Authority on Prevailing Party Determinations Respondents continually repeat the $87.7M and $512K argument to show that Appellant did not prevail on its alleged litigation goal. First, as explained above the $87.7M was NOT a litigation goal for the breach of contract. It was for patent infringement and the breach of contract. Additionally, as noted it was in a Settlement Conference Statement which was improperly used by Respondents. Second, as explained above the $512K was for all boats, and once the judge kicked out Ramfill boats, the amount shown in damages was $179K. Third, the complaint alleged damages of at least $53K not including interest AA 546:25-26. So really Appellant’s stated litigation goal in 2016 when the suit was filed was $53K not including interest. 7. Appellant’s state the standard of review and why before each discussion. 24/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Regarding RB p25 at 3. Appellant Fails to Show the Trial Court Abused Its Discretion Again, Respondents presume to lecture this court about the abuse of discretion standard which they want without addressing the specific issues addressed by Appellant. As noted, Appellant states the standard of review believed to be correct and why. Regarding Respondents’ mixed results and lopsided victories comment, as illustrated above the use of the $87.7M and $512K numbers are not really legitimate and there was no lopsided victory by Respondents especially in light of the fact that despite withholding 3 years of boats sales and frustrating the audit attempt MMEI’s accountant came up with an amount of $85.3K due. VI. THE COURT FAILED TO CONSIDER ITEMS REQUIRED BY LAW TO BE CONSIDERED IN A CCP 998 RULING Regarding RB p27 at B. The Trial Court Properly Exercised its Discretion in Finding Fineline the Prevailing Party pursuant to § 998 The lower court in accessing Appellant’s award forgot to add in pre 998 offer costs. This is an error in law and is reviewed de novo. 1. Respondents mixed results analysis misstates the law. Regarding RB p27 at B. The Trial Court Properly Exercised its Discretion in Finding Fineline the Prevailing Party pursuant to § 998 Respondents argue about prevailing on litigation objectives and how they defensed on some minor issues. What Scott at 1109 states is: 25/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) “In deciding whether there is a 'party prevailing on the contract,’ the trial court is to compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources." citing Hsu v. Abbara (1995) 9 Cal. 4th 863, 876 (Underline added.) Here, the only contract claim for which Appellant (MMEI) arguably stated a litigation objective was the $53K stated in the Complaint as filed in 2016 for failure to pay royalties. Accordingly, the issue of any other claim being defensed does not go into any analysis because no comparison can be made to a non-stated objective. There have been shown no other contract objectives. As noted by Respondents (RB p27) Appellant is entitled to have preoffer costs included before a 998 determination is made. Also, as well as any pre-offer prejudgment interest. None of these were included in the lower court’s evaluation of the 998 offer so there is an error in interpreting the law which warrants a de novo review. 2. Service of the 998 was made on July 23, 2016. Regarding RB p28 at 1. Service Is Effective upon Mailing CCP 998(b)(2) clearly states “If the offer is not accepted prior to trial or arbitration or within 30 days after it is made, ...” (Emphasis added.) 26/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) And in the California Supreme Court case Camper v. Workers’ Comp. Appeals Bd. (1992) 3 Cal.4th 679 at 686 the court states about Poster: “In Poster, we held that the 30-day period for the acceptance of a statutory settlement offer pursuant to Code of Civil Procedure section 998 is extended by section 1013 when it is served by mail. Section 998 provides that the applicable time period runs from the time that the offer is "made." We reasoned that "[b]ecause an offeror “makes' the offer by serving it in writing, when a section 998 offer is served by mail it is clear that the statutory period for response runs from the service by mail." (Poster, supra, 52 Cal.3d at p. 274, fn. 4.) As the offer cannot be "made" without communicating it through service, the trigger adopted by the Legislature for the prescribed time period in section 998 necessarily included service; ...” Thus, service was “made” on July 23, 2016. Respondents are confusing the time to respond to a 998 with when the 998 offer is “made”. The lower court made this same error in law. See AOB p61 at 1. and AOB p61 at 2. 3, The lower court did not consider Appellant’s pre-offer costs and attorney fees. Regarding RB p29 at 2. The Trial Court Properly Exercised Its Discretion to Reject $44,042.86 in Claimed Pre-offer Fees & Costs The lower Court did not consider the pre-offer costs and attorney fees but rather simply swept them all aside by stating in an order “even with the addition of plaintiff’s allowable pre-offer costs (as supported by the supplemental briefing), the plaintiff did not “beat" defendants’ 27/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Section 998 offer.” AA 5346:3-4. When asked by counsel what was allowable there was no response. Thus the court ignored it which was not consideration but ignoring the law where pre-offer costs are allowed. From RT 1013:20 - RT 1015:13 20 MR. ALAN HEIMLICH: Your Honor, what we did not 21 | see, and what we're wondering was what were the preoffer 22 | costs that were allowed? 23 THE COURT: Proceed. 24 MR. ALAN HEIMLICH: That was it, Your Honor. 25 THE COURT: Okay. The Court took everything into 26 | consideration and then issued its ruling. 1013 28/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) w N = v i a Ow 0 N O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 MR. ALAN HEIMLICH: I understand that. THE COURT: Which -- and the Court noted here in its rulings, the mixed results and the mixed result theories under various codes of -- in the statute including cc 1717, CCP 1021, and 1032. And so I've listed them -- listed the results. So are there any other arguments that you have in opposition? THE COURT: And what do you contend they should be? MR. ALAN HEIMLICH: We'd Tike to know what the quantity was, Your Honor. THE COURT: All right. MR. ALAN HEIMLICH: What was knocked out and why? what was not considered an acceptable preoffer costs? THE COURT: Anything further? MR. ALAN HEIMLICH: No. THE COURT: Anything in reply, Mr. Quall? MR. QUALL: No, Your Honor. THE COURT: Next, is the def ndant's motion to be 1014 29/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 1 | ccp 1021, 1032, Civil Code Section 1717. I presume you'll 2 reserve on that one as well, Mr. Quall? 3 MR. QUALL: Yes, Your Honor. 4 THE COURT: Opposition, Mr. Heimlich. 5 MR. ALAN HEIMLICH: Your Honor, what we didn't get 6 | from the ruling is what contract claims were encompassed by 7 | the Section 1717 ruling that made them the prevailing 8 party? 9 THE COURT: Other argument. 10 MR. ALAN HEIMLICH: None. 11 THE COURT: Anything in reply? 12 MR. QUALL: No, Your Honor. 13 THE COURT: Next, is the defendant's motion to -- (Emphases added.) Basically, the Court was non-responsive and in 11 minutes disposed of all issues. To this day Appellant has no idea what was not allowable and/or why. Appellant submitted to the court all pre-998 offer invoices with patent, federal case, and other unrelated entries redacted. See AA 3728 to AA 3760. Regarding Respondents’ harping on 2012 fees, it was a single invoice for $201.50 in November of 2012 regarding an email to Rick Lee. This is misleading as almost all the fees ($40,555.61) were incurred in 2016 and are directly related to communicating with opposing counsel to try and resolve issues and then filing suit. Here’s the breakdown by year: 2012 - $201.50 30/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 2013 - $919.75 2014 - $1001.00 2015 - $1365.00 2016 - $40,555.61 Each invoice has detailed entries of what was performed. All the activities contributed to our success at trial. For example, a massive detailed 21 page Excel® spreadsheet was prepared and sent to Fineline with the Notice of Default (before the lawsuit) explaining in excruciating detail what monies were owed on what boats. AA 472 - 493. 4. Respondents groupings of expenses is misleading, wrong, and implies entries that were not charged. Regarding RB p30 at 2. The Trial Court Properly Exercised Its Discretion to Reject $44,042.86 in Claimed Pre-offer Fees & Costs Respondents’ grouping into categories RB p30-31 is disingenuous at best and misleading at worst because these groupings are not consistent with what was charged as shown on the invoices at AA 3728 to AA 3760. For example, Respondents clumped anything in preparing for trial and called it an “[i]nvestigation expense”. Further they claim there were “Clerical expenses such as postage, telephone, and photocopying charges not made for exhibits”. There were a total of 10 charges totaling $1,075.61 and they were for such things as One Legal filing fees AA 3756, serving of process AA 3756, 31/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) One-Legal and Court Filing Fees for State Court Complaint ($458.80) AA 3756. There were no charges for a telephone or photocopying. Then Respondents clump a major part of the costs as not “reasonably related to the conduct of the litigation”. This is simply not the case; each invoice shows the description and it’s all related to the litigation. Then Respondents clump another group and claim the court can deny it. That may be so but that does not mean it’s not a legitimate cost. Respondents then show several expenses and state “There is no evidence the trial court abused its discretion in not permitting this expense.” The problem with this is twofold, first Respondents are assuming that the trial court reviewed it, and second that it was rejected by the trial court. As noted above MMEI counsel requested but got no indication from the court if these costs were not allowed. Respondents then clump almost all the remaining activities as investigative. Reviewing discovery and piles of nonsense that was dumped on MMEI and preparing spreadsheets to figure out what was going on is not “purely clerical tasks” or merely “investigative”. This is a mischaracterization. Finally, Respondents make the statement that “Appellant was properly limited to $4,204.21 in pre-offer attorneys’ fees and costs which were added to the judgment in determining the net award for purposes of comparison to the § 998 Offer.” There is NO evidence in the record that any pre-offer attorneys’ fees and costs were added to the 32/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) judgment. Not in the judgment AA 4333, the amended judgment AA 5342, or anywhere else. 3. Respondents assumption on the period of interest being calculated is wrong, as is their adjustment. Regarding RB p33 at 3. The Trial Court Exercised Its Discretion in Rejecting Appellant’s Interest Calculations Respondents’ logic is contorted and believed in error because they assume a 5 year period of interest. Appellant even assuming arguendo the incorrect 5 year period shows how the calculation done by Respondents is in error. Please see AOB p63 at 3. VII. RESPONDENTS CALLING ALL FEES AND COSTS NECESSARY DOES NOT MAKE IT SO AND RESPONDENTS HAVE NOT ADDRESSED THE ISSUES RAISED Regarding RB p34 at C. The Trial Court Properly Exercised its Discretion in Awarding Attorneys’ Fees and Costs to Fineline as the Prevailing Party Respondents try to clump all their fees and costs as necessary under CCP § 1033.5. This is in error with such glaring examples as Respondents listing as a cost a sanction ($2K) the court imposed on Respondents which they convinced the lower court should be a cost paid by Appellants. Appellant detailed 17 such abuses in detail starting at AOB p. 48. 33/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 1. Plaintiff “MMEI” should not have to pay for Defendants deals with “Jessen” a third party not associated with the litigation. Regarding RB p35 at 1. The Court Did Not Award Costs for any “Deal” with Jessen Fineline, outside of this litigation, cut a supposed deal with a “Jessen” entity to acquire certain of Jessen’s alleged rights to technology. This is an unrelated third-party transaction, was not part of this case, and MMEI should not have to pay for legal costs associated with this. Nor is this allowed under CCP § 1033.5. The Item numbers, costs, and AA references are as follows for a total of $3,940.00. The point of this excruciating detail is to show that Appellants are not challenging every fee or cost just the clearly erroneous ones. The Item numbers and costs are: #13 $960 AA 1067 #21 $120 AA 1067 #22 $30 AA 1067 #24 $90 AA 1067 #25 $240 AA 1067 #26 $120 AA 1067 #27 $90 AA 1067 These entries are shown here boxed: 34/57 Amount Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 6/20/2016 JMC Telephone conference with Rick re: discussion with patent attorney and g000 /f Murphy lawsuit history; Drafted e-mail to client re: obligations to Fineline JMC Reviewed and considered response letter sent by Fineline attorney to 90.00 [2 Murphy and accompanying documents 6/21/2016 JMC Meeting with client to review and discuss lawsuits, Murphy license 96000 [3 documents, and prospective transaction with Jessen 6/29/2016 MEK Drafted Joint Defense Agreement. 25000 /¢ JMC Reviewed and considered multiple e-mails re: call; Telephone 3000 /5 conference with Rick JMC Reviewed and responded to Fineline attomey question re: litigation e000 /¢ JMC Organized and reviewed client documents re: Murphy dispute 21000 [7 7/5/2016 JMC Reviewed Rick and Yeargin e-mails; Drafted response to Rick 3000 [§ JMC Considered lawsuit responses and Joint Defense Agreement s000 /9 JMC Telephone conference with Rick re; lawsuit response deadline issues 3000 Zo JMC Telephone conference with Rick re: counter offer by Jessen and 120.00 2/ Fineline license fees JMC Reviewed e-mail from Rick re: Jessen issues 3000 ZZ. 7/8/2016 JMC Reviewed Rick and Bill e-mails 0.10 3000 273 300.00/hr JMC Telephone conferences with Rick re: Jessen counter offers and 0.30 92000 24 negotiations 300.00/hr JMC Revised and finalized License Assignment and Promissory Note; 0.80 240.00 Z5 Drafted e-mail to Fineline to approve changes; Reviewed responses 300.00/hr JMC Finalized LLC sale documents; Drafted e-mail to Rick re: final 0.40 12000 26 documents and closing issues 300.00/hr JMC Finalized License Assignment documents; Drafted e-mail to Rick re: 0.30 g006 27 final documents and closing issues 300.00/hr AA 1067 35/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) #28 $30 AA 1068 #29 $30 AA 1068 #30 $60 AA 1068 #31 $60 AA 1068 #32 $30 AA 1068 #34 $60 AA 1068 #35 $150 AA 1068 #36 $150 AA 1068 #37 $30 AA 1068 #38 $210 AA 1068 #39 $240 AA 1068 #40 $90 AA 1068 #42 $90 AA 1068 These entries are shown here boxed: 36/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Hrs/Rate Amount 7/6/2016 JMC Reviewed and responded to e-mails from Jodie re: closing logistics 0.10 30.00 28 300.00/hr JMC Telephone conference with Rick re: status 0.10 30.00 29 300.00/hr JMC Reviewed voice messages and e-mails from Jodie and Rick; 0.20 60,00 20 Telephone conference with MEK re: execution instructions 300.00/hr JMC Reviewed MEK, Rick, Jodie, and CC attorney e-mails; Drafted 0.20 6000 3/ responses to Jodie and Rick re: payment 300.00/hr JMC Drafted e-mail to Paul Singer re: documents to sign for Fineline 0.10 30.00 52 300.00/hr JMC Worked on Joint Defense Agreement .80 24000 33% 300.00/hr 7/7/2016 JMC Reviewed Rick and Fineline e-mails re. Jessen license; Telephone 0.20 60.00 3Y conference with Rick re: logistics 300.00/mr JMC Telephone conference with Rick re: requested change; Revised 0.80 160.00 35 License Assignment; Drafted e-mail to Fineline 300.00/hr JMC Telephone conference with Rick about Jessen issues with changes; 0.50 150.00 26 Conference call with Rick and Jessen; Finalized Assignment; Drafted 300.00/hr e-mail to Rick JMC Reviewed Fineline and Rick e-mails re: payments 0.10 3000 27 300.00/hr JMC Organized final documents; Reviewed signature pages from parties; 0.70 210.00 35 Drafted e-mail to Jessen re: pages needed; Drafted e-mail to Fineline 300.00/hr re: signatures needed JMC Obtained final pages from parties; Reviewed and responded to 0.80 24000 %9 questions; Organized final documents; Drafted e-mails to Bob Jessen 300.00/hr re: transaction documents JMC Reviewed e-mail from Attomey Gilchrist; Drafted response e-mail to 0.30 90.00 #0 answer questions 300.00/Mr JMC Revised and finalized draft Joint Def Agr ; Drafted e-mail to 1.00 30000 Attomey Gilchrist 300.00/r JMC Reviewed and responded to Fineline questions; Drafted e-mails to 0.30 9000 §2 Attorney Gilchrist re: license and LLC transactions 300.00/hr JMC Telephone conference with Rick re: lawsuit next steps 0.10 30.00 4 300.00/hr 3 AA 1068 The remaining entries can be found here, however, Appellant believes the Appeals Court understands the point made that this $3,940.00 3" party transaction should not be paid by Appellant. #50 $90 AA 1069 37/57 Do cu me nt re ce iv ed by th e CA 5t h Di st ri ct Co ur t of Ap pe al . Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) #65 $60 AA 1070 #93 $90 AA 1071 #149 $60 AA 1075 #200 $30 AA 1078 #201 $60 AA 1078 #217 $90 AA 1079 #218 $30 AA 1079 #674 $300 AA 1107 #676 $120 AA 1107 #688 $90 AA 1108 #755 $60 AA 1112 #1290 $70 AA 1146 Please see AOB p49 at 3. Plaintiff “MMEI” should not have to pay for Defendants deals with “Jessen” a third party not associated with the litigation 2. Respondents fail to explain to this court why Respondents’ court sanction should be paid by Appellant. Regarding RB p36 at 2. Discovery Issues Respondents were sanctioned $2K for discovery abuse and are silent on why Appellant should pay it. Rather Respondents seem to clump this into a discovery issue discussion and claim it’s allowable. Here is the entry at AA 2672 Item number 1353: 8/8/2017 JMC Sanctions Issued #2266 2,00000 /357% Please see AOB p50 at 4. 38/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 3. Respondents confuse a Joint Defense Agreement with patent counsel. Regarding RB p36 at 3. Joint Defense Agreement Respondents argue out of one side of their mouth that there is only a single corporate entity (which Judge Proietti denied AA 4466) and then argue out the other side that a Joint Defense Agreement is needed which makes no sense if there is only a single entity. Further there is no nexus shown between a JDA and needing outside patent counsel. Respondents wrongly charge costs of $880.00 to Appellant for a Fineline Joint Defense Agreement between the three defendants (from AA 1040:19-20 list). Total: $880.00. The Item numbers and costs are: #14 $250, #19 $60, #33 $240, #41 $300, #53 $30. #14 $250 (AA 1067) 6/29/2016 MEK Drafted Jcint Defense Agreement. #19 $60 (AA 1067) JMC Considered lawsuit responses and Joint Defense Agreement #33 $240 (AA 1068) JMC Worked on Joint Defense Agreement #41 $300 (AA 1068) JMC Revised and finalized draft Joint Defense Agreement; Drafted e-mail to Attomey Gilchrist #53 $30 (AA 1069) JMC Drafted e-mail to Singer re: Joint Defense Agreement; Reviewed response and executed JDA 39/57 1.00 250.00/mr 0.20 300.00/mr 0.80 300.00/hr 1.00 300.00/mr 0.10 300.00/hr 25000 /Y sooo /9 24000 33 0000 4 3000 53 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Please see AOB p50 at 5. 4. Respondents do not respond to the issues raised and are double dipping. Regarding RB p36 at 4. Filing Fees Are Recoverable, and Regarding RB p37 at 5. Appellant Caused Fineline’s Patent Law Costs and Fees Respondents are attempting to confuse this court regarding fees/costs. Appellant as noted earlier filed the underlying state case 16CV01617 for breach of contract and a federal case 1:16-cv-00784-LJO-SAB for patent infringement which is still on stay (“Patent Infringement Case”). Also, when the state judge kicked the Ramfill boats Appellant attempted to remove the case to federal court case 1:18-cv-00488-AWI-MJS (“Removal Case”). Respondents are attempting to recover fees for BOTH the federal case and state case in state court. This is not proper for a variety of reasons. Respondents were not required to file responses in either case but did so. First, in the underlying Patent Infringement Case it is still on stay in the federal court and any award of fees and costs associated with that separate action are properly secured in federal court not state court. Second, regarding the Removal Case, Respondents conveniently forget to tell this court that they were already awarded attorney fees by the federal court which Appellant promptly paid to them. Appellant considers this double dipping. For these reasons the fees/costs should not be allowed. 40/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) The sums are $3252.50 and $7,250.00 and are detailed below. Total $3252.50. The Item numbers and costs are: #6 $30, #8 $120, #74 $260, #75 $520, #101 $30, #128 $60, #140 $60, #141 $120, #142 $30, #148 $120, #160 $90, #240 $65, #241 $30, #341 $60, #342 $90, #559 $65, #563 $30, #564 $90, #635 $120, #636 $90, #637 $30, #638 $60, #684 $150, #777 $97.50, #803 $455, #305 $30, #806 $50, #1126 $60, #1201 $65, #1207 $35, #1343 $200. Total $7,250.00. The Item numbers and costs are: #10 $90, #11 $90; #363 $120, #364 $30, #434 $60, #480 $150, #497 $150, #516 $810, #517 $480, #526 $360, #528 $810, #534 $1275, #576 $162.50, #580 $260, #583 $60, #584 $30, #586 $60, #587 $360, #588 $180, #590 $250, #594 $162.50, #643 $60, #650 $90, #670 $1150. Please see AOB p50 at 6. Please see AOB p50 at 7. 5. Pro hac vice costs are not recoverable. Regarding RB p37 at 6. Pro Hac Vice Costs Are Permitted as Filing Fees and Attorney Fees Appellant cited to a 9 circuit case which relied on a United States Supreme Court case. The pro hoc vice fee is $50, not $2,704.35. See http://www. calbar.ca.gov/Admissions/Special-Admissions/Pro-Hac- Vice 41/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) The Item numbers and costs are: #633 AA 1104 $1365 (including also patent and federal issues that are not recoverable), #639 AA 1105 $300, #640 AA 1105 $680, #648 AA 1105 $100, #654 AA 1106 $125, #1363 AA 1150 $65.40, #1368 AA 1151 $50, #1369 AA 1151 $15.35, #1370 AA 1151 $3.60. Total $2,704.35 It should also be noted that pro hac vice counsel did not argue any hearings or try the case. Fineline failed to meet its burden to show that the use of out of state counsel was reasonably necessary to the litigation. Further, Respondents time and again characterize all of Appellant’s legal tasks as mere administrative and not allowable as costs, however as expected when Respondents have attorneys doing the task suddenly it is not administrative. A perfect example is Respondents’ attorney MRD (Matthew R Dardenne) filling out a pro hac vice application. At AA 1105. MRD Drafted Pro hac vice application for Brian Gilchrist. 1.20 300.00 ¢&39 250.00/hr How an attorney can spend 1.2 hours on filling out a pro hac vice application is stunning. The fees of $2,704.35 are simply outrageous not reasonable and the lower court should have struck this. It should be noted that the lower court did not strike a single item from Fineline’s costs/fees. Please see AOB p51 at 8. 6. Respondents attempt to fool this Appeals court by conflating issues and making up what Appellant said. 42/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Regarding RB p37 at 7. Inspection Fees Are Permissible Firstly, Respondents state RB p37 “7. Inspection Fees Are Permissible” but then do not cite any authority. Secondly, Respondents state “Appellant’s contention that attorney time spent on a site visit to gain a better understanding of how Fineline’s boats are manufactured are not recoverable is without merit.” First, the problem here is that Respondents are attempting to put words in Appellants mouth that were not spoken in an attempt to make Appellant sound totally unreasonable. Appellant never said “time spent on a site visit to gain a better understanding of how Fineline’s boats are manufactured” or would Appellant even know what went on since they were not invited on this “trip”. What Appellants said was: “Item #492 in the amount of $2105.00 has “site visit to review boats”. A Fineline site visit should be on their dime and time, not Plaintiff’s. Nor is this allowed under 1033.5.” Second, it certainly sounds like from Respondents’ description that this was an “Investigation” expense that under 1033.5(b)(2) is not allowable. Here is the #492 $2015.00 entry at AA1096. Hrs/Rate Amount 12/42017 MWQ Travel to Merced to attend Mandatory Seltlement Conference; site visit 6.20 201500 492 to review boats, part; and retum travel to firm. 325.00/hr Additionally, only travel to attend a deposition is an allowable cost, not to attend a Mandatory Settlement Conference. Respondents simply throw in the whole kitchen sink and then even more. 43/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Please see AOB p51 at 9. Te Respondents misstate the issue of trying to depose opposing counsel in an attempt to convince the court that these are allowable costs. Regarding RB p38 at 8. Deposition Costs Are Recoverable Respondents misstate the sequence of events regarding the attempted deposition of Mr. Alan Heimlich (opposing counsel). The correct sequence is that before the first day of trial (5/22/2018, RT 160) Respondents had placed opposing attorney Alan Heimlich on their witness list as of 5/14/2018 (ARA 10 at #10.) and some of the costs were almost a year before trial. Further Respondents cite to § 1033.5(a)(4) as justification, however § 1033.5(a)(4) is directed to “Service of process by a public officer, registered process server, or other means, as follows: not the costs of $4,897.77 that Respondents are attempting to get for trying to depose opposing counsel. See AOB p52 at 10. Defendants costs associated with trying to subpoena and depose opposing counsel are not recoverable. 8. Convenience fees are not recoverable under 1033.5. Regarding RB p38 at 9. Costs for Ex Parte Applications are Permitted 44/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Costs may be awarded only when they are reasonably necessary, not merely beneficial and convenient. CCP § 1033.5(c)(2), and see Ladas v. California State Auto. Assn. (1993) 19 Cal. App. 4th 761, 774. Here, Fineline had the option of appearing at the hearings in person. Thus, the CourtCall costs were merely beneficial and convenient and are not recoverable. Moreover the cost for CourtCall is nothing but a telephone charge and under CCP § 1033.5(b)(3) telephone costs are not allowed. See Appellant’s AOB p52 at 11. Convenience fees are not recoverable under 1033.5. 9. The court did not order any fees of expert witnesses so they are not allowable under 1033.5. Regarding RB p38 at 10. Fineline’s Expert Fees Are Recoverable Despite what Respondents try to imply or argue the lower court did not order any expert witnesses fees. Appellant was ordered to pay a discovery sanction which Respondents are trying to bootstrap into an expert witness fee - which it is not. Fees of experts not appointed by the court are expressly not allowed CCP § 1033.5(b)(1) . The claimed expert witness fee was $33,792.50 and it should not have been allowed by the lower court. It should be noted that the lower court did not strike any item from Fineline’s fees/costs. 45/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) See AOB p52 at 12. This court did not order any fees of expert witnesses so they are not allowable under 1033.5. 10. Plaintiff should not have to pay for Defendants failed motions to compel Regarding RB p39 at 11. All Attorneys’ Fees Reasonably Incurred Are Recoverable “Reasonably incurred” does not imply the fees were reasonably necessary as 1033.5(c)(2) requires. Discovery motions to compel already account for the prevailing party via monetary sanctions and so no additional costs should be incurred. Nor is this allowed under 1033.5. Item numbers are listed at AA 1043:1-7. Total $29,693.60. See AOB p53 at 13. 11. Respondents prepared but did not file some motions, and were unsuccessful on others. Regarding RB p38 at 11. All Attorneys’ Fees Reasonably Incurred Are Recoverable Motions not filed and motions to quash that were not successful should not be costs to recover. Nor is this allowed under 1033.5. Further, Respondents failed to show how motions not filed were necessary to the conduct of the litigation, nor did the lower court ever address the multitude of issues Plaintiff raised in its motion to strike and/or tax such costs. 46/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Item numbers are listed at AA 1043:13-15. Total $4,727.50. See AOB p53 at 14. 12. Fineline’s attorneys block billed which is not proper. Regarding RB p39 at 12. Fineline’s Attorneys Did Not Block Bill Despite Respondents hand waiving there is no breakout of times. Item numbers are: 463, 465, 515, 603, 642, 686, 726. Total $8,497.50. Here are some examples of Fineline attorneys’ block billing. JMC Worked on Mandatory Settlement Conference Statement; Reviewed 6.80 2,040.00 #63 and considered evidence, schedules, and damage claims; Reviewed 300.00Mhr Etherton Opinion Letter; Considered damages during Audit Period and in 2016; Confirmed calculations; Revised MSC Statement. MWQ Further review, analysis of mandatory settlement conference statement 2.50 812650 4765 ofMurphy; meet with JMC re: trial preparation; review licensing 325.00/hr agreement, underlying pleadings; review and revise mandatory settlement conference statement. MWQ Phone call with Rick Lee re upcoming deposition; confer with JMC re: 3.40 1,105.00 5/5 same; review pretrial deadlines; review expert witness designation by 325.00/mr Murphy; review experts, Fineline designation and discuss same with JMC; review mofion to compel, request for continuance; conference call with Rick Lee; review, revise Fineline expert witness designation. JMC Reviewed calendars, motions, schedules, and court rules; Reviewed 1.70 510.00 092 Ex Parte timing; Worked on Schedule of Events; Drafted e-mail to 300.00/hr client; Reviewed and responded to Jodie question. MWQ Further review, analysis of breach of contract patent infringement 4.80 1,560.00 6%2 claims and exclusive jurisdiction of court to hear Ram Fill claims; 325.00/hr review, revise Reply briefs; confer with JMC re: underlying pleadings: analysis of unjust enrichment cause of action and preclusive effect of extra-contractual damages. MWQ Review documentation provided to MME expert witness Michael 3.80 1,235.00 ce Thompson; review basis for motion to exclude on grounds 325.00/hr impermissible presentation of setiement conference statements; review and revise motions in limine; review tentative rulings on pending motions, prepare for hearing on multiple motions. See AOB p53 at 15. 13. Respondents’ use of a secret decoder ring to figure out costs/fees is a charade. Regarding RB p40 at 13. Appellant Misunderstands Insider Terms 47/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Respondents argument boils down to you need to know our secret coding and if you don’t then don’t worry trust us as all fees and costs were reasonably incurred. To which Appellant responds below. Item number 110 AA 1073 refers to “Provided Falfalios schedules to team”. It makes no sense. Total: $120.00. Perhaps Respondents forgot to decode for Appellant what Falfalios refers to. Item number 670 for $1,150.00 is for a “motion in limine to challenge the validity of the 099 patent” but such a motion was NEVER filed. MRD Drafted and revised motion in imine to challenge validity of 099 patent 4.60 1,150.00 ero by way of EC 402 hearing. 250.00/hr See AOB p53 at 16. 14. Respondents’ errant entry is explained and accepted. Regarding RB p40 at 14. All Items Were Properly Billed Appellant does not agree with the statement that “All Items Were Properly Billed” however the explanation given for the errant entry in their Item Number 557 (AA 1100) makes sense and is accepted. See AOB p54 at 17. 15. Jurisdictional issues did not pervade this case. Regarding RB p40 at 15. Jurisdictional Issues Pervade this Case. Appellant seriously does not follow Respondents’ arguments here. Jurisdictional issues did not pervade this case. Jurisdiction was established 48/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) back in 2016 and there was no challenge to jurisdiction raised, and Appellant does not understand why 3 years later this is an issue. Additionally, Respondents’ timeline makes no sense. The motions were heard on 8/26/2019 so how does this require a 9/4/2019 investigation into jurisdiction? Item number #1496 AA 4768 from 9/4/2019 for $351 should not have been allowed. See AOB p54 at 18. 16. The lower court’s jurisdiction was established when the suit was filed in 6/2016 and no jurisdictional analysis was needed more than 3 years later in 9/2019. Regarding RB p41 at 16. Remaining Issues Were Not Put before the Trial Court Appellant again does not follow Respondents’ arguments here. All motions were timely made and before the court. Regarding the different versions of Respondents’ cost/fees the latest one before the court was used by Appellants. Regarding the third motion to tax costs that is non-starter as it was before the court. As explained at AA 4777 there were 3 motions to tax costs. “On 7/5/2019 Plaintiff filed a motion to tax costs now denoted #1. On 7/24/2019 Plaintiff filed a motion to tax costs #2. On 9/6/2019 Defendants hand served in court “additional fees and costs incurred post-July 9, 2019” (“Amended Costs”) which for clarity is denoted #3. The Amended Costs #3 is attached as Exhibit 1 to the DECLARATION OF NICHOLAS HEIMLICH. This filing is in response to #3. 49/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) The Court ordered all motions to tax costs on a new hearing date, rather than include all of the documents in the prior filings, we simply attach them, so the Court can rule on them.” (Bold in original.) Appellant’s motion to tax costs #3 was filed on 9/13/2019 (see AA 4773). Appellant is especially puzzled by this Respondents’ statement: “The attorneys’ fees and costs Appellant seeks to challenge via its third Motion to Tax were never presented to the trial court and were never before the court, and the costs associated with them were never awarded. Appellant’s misrepresentations to the contrary are false.” First, they were before the court since they were filed on 9/13/2019 (see AA 4773). Second, the court considered it because it ruled on it 10/17/2019. See order at AA 5344:1 “Plaintiffs three motions to strike/tax defendants’ costs are DENIED...” Third, as to the costs never awarded - this one is a head scratcher since in that very same order on 10/17/2019 at AA 5344:4-8 Respondents were awarded “the entirety of their attorneys’ fees and costs”. See AOB p54 at 18. 17. The County of Tulare was not involved in this lawsuit yet the lower court allowed those costs to be billed to Appellant. Regarding RB p41 at 16. Remaining Issues Were Not Put before the Trial Court 50/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) Respondents simply fail to provide an explanation for this cost. Item number: 1444 AA 4764 “Further review of documents for production to County of Tulare” 2.6 hours for a total of $702.00. MRD Further review of documents for production to County of Tulare 260 702.00 270.00/hr This cost should not have been allowed as Tulare County was not a party and this was brought to the attention of the lower court (AA 4781). Further, Respondents’ claim that the Tulare entries were not in a quote “final” version of the bill (AA 5246) are bogus because in the Declaration filed by Mathew W. Quall undated but filed 9/13/2019 to which is attached a “final version” can be seen at ARA 107 at the bottom of the page this entry: MRD Further review of documents for production to County of Tulare 2.60 702.00 270.00/hr (Highlight added.) And at ARA 203 at the bottom of the page this entry: MRD Further review of documents for production to County of Tulare 2.60 702.00 270.00/hr (Highlight added.) After accusing current counsel of lying in this matter in official filed documents, Mr. Quall conveniently forgot to date his declaration as can be seen here from page ARA 17. 51/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) 18 | I declare under penalty of perjury of the laws of the State of California that the foregoing 19 is true and correct and that if called to testify to these facts stated herein I could and would 20 | competently testify thereto. 21 Executed this __ day of September 2019, at Fresno. California. 22 23 “hap 24 | Matthew W. Quall The date is supplied here from the Register Of Actions (AA 5460): Declaration of Matthew Qudl im Spprt of Motion to be Deemed Prevailing Party Filed By: Defendant Fineline Industnes, LLC; Defendant Fineline Industries, LLC; Defendant Fineline Industnes, Inc. Created: 09/16/2019 9:27 AM It should be noted that the lower court did not strike a single item from Fineline’s costs/fees. See AOB p54 at 19. VIII. THE ORDER GRANTING DEFENDANTS' MOTION TO STRIKE OR TAX PLAINTIFE’S COSTS IS IN ERROR AS IS THE AMENDED JUDGMENT Regarding RB p41 at D. The Trial Court Properly Exercised its Discretion in Taxing Appellant’s Pre-Offer Fees and Costs Respondents argue the standard of review again. Appellant lists on AOB p64 the reasons why Appellant believes the order and judgment are in error because the court incorrectly determined the applicable interest rate, incorrectly determined that Defendants are the prevailing party, incorrectly 52/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) determined the 998 issue, incorrectly forgot to add in pre-998 costs, incorrectly awarded attorneys’ fees and costs, etc. See AOB p64 at XIII. and 1. IX. THERE ARE TWO JUDGMENTS AND THERE ARE STRICT PROCEDURAL DEADLINES FOR FILING APPEALS AND APPELLANT FOLLOWED THEM. Regarding RB p42 at E. Neither the Judgment nor the Motions for New Trial are Appealable under the One-Appeal Rule There were two issued judgments in this case one was issued on 6/25/2019 and the second judgment on 10/17/2019. Each judgment independently has procedural rules for the appeal process. Appellant properly and timely filed notices of appeal, designations of record, appeal briefs, and appendixes, etc. for both to preserve rights. Under CCP § 904.1(a)(1) the first appeal was properly taken from a judgment. Likewise, the second appeal was taken under CCP § 904.1(a)(1) from a judgment, or under CCP § 904.1(a)(2) as an order made after a judgment made appealable by CCP § 904.1(a)(1). Heck v. Heck Bros. (1943) 57 Cal. App.2d 599, 603 and Learned v. Board of Ed. of City and County of San Francisco (1940) 37 Cal. App.2d 561, 564 are distinguished because parts of the first judgment were final and there was no indication in the judgment that it was interlocutory in nature. Accordingly, for appeal purposes the appeal time clock started with 53/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) issuance on 6/25/2019. Likewise, the timing started for the second judgment on 10/17/2019. These jurisdictional deadlines are brutal. “Once a final, appealable order or judgment has been entered, the time to appeal begins to run. The Rules of Court do not provide, once a judgment or appealable order has been entered, that the time to appeal can be restarted or extended by the filing of a subsequent judgment or appealable order making the same decision.” Laraway v. Pasadena Unified School District, 98 Cal. App.4th 579, 583 (2002). “Rule 3 does not recognize a scenario where a second notice of entry of judgment can recommence the 60-day time period in rule 2(a).” Filipescu v. Cal. Housing Authority (1995) 41 Cal.App.4th 738 . Accordingly, both appeals are proper. X. RESPONDENTS MISSTATE THE RECORD AND THEN IMPLY THAT WHICH IS NOT CORRECT, THAT IS “SEVERAL” DOES NOT MEAN “ALL”. Regarding RB p43 at F. The Judgment Was Supported by Sufficient Evidence and the Court Did Not Abuse its Discretion on the Post-Trial Motions for New Trial Respondents state “There, as here, Appellant admits all 17 issues appealed from in the Judgment are “factually based decisions.” (AOB, 19.) Thus, each issue is reviewed for sufficient evidence, not de novo review.” Here is what AOB p 22 actually states at the section referenced under VIII. NOTA BENE 54/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) “Appellant has several factually based decisions being appealed that are simply not supported by the evidence admitted. For example, defendants Fineline submitted evidence as did MMEI of checks that were written to and cleared by MMEI regarding royalty payments. The sum quoted in the judgment does not agree with the actual sum of checks admitted into evidence. ...” (Emphases added.) Respondents again distort what was said and try to morph “several” into “all”. Respondents also try and shoehorn every issue into abuse of discretion, however, again, Appellant has stated the standard of review before each discussion. XI. JUST BECAUSE THE LOWER COURT MAY HAVE CONSIDERED AN ISSUE IT DOES NOT PRECLUDE APPELLANT FROM RAISING IT ON APPEAL. Regarding RB p43 at F. The Judgment Was Supported by Sufficient Evidence and the Court Did Not Abuse its Discretion on the Post-Trial Motions for New Trial Respondents by stating ““... Appellant fails to raise any issue of fact or law that was not fully considered by the trial court in response to the PSD or on the motion for new trial.” (emphasis added) appears to imply that only an issue not considered by the trial court can be appealed. This could not be further from the truth. Only issues raised in the lower court may be raised on appeal with minor exceptions. All the issues Appellant has raised 55/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) were before the trial court and are properly raised before this Appellate Court. XII. NOTA BENE Regarding RB p45 at G. Re Nota Bene: The Order Denying Appellant’s Peremptory Challenge Is Not an Appealable Order Appellant stands by the response in AOB p19 VIII. NOTA BENE, however this matter has been ruled upon by the Court sto deny this request. CONCLUSION For the various reasons presented above and in Appellant’s Opening Brief the lower court proceedings were unfair and prejudicial to Plaintiff. Because of the many issues in error the judgment should be vacated, and a new trial held on the issues raised. Dated: 07/27/2020 Respectfully submitted, uc eT Nick Heimlich Mike Murphy’s Enterprises, Inc. 56/57 Th is e- co py is th e of fi ci al co ur t re co rd ( G C 6 8 1 5 0 ) CERTIFICATE OF WORD COUNT I certify that, according to the computer program used to prepare this brief, it contains 10,487 words INCLUDING a count of the words in the graphics posted within this brief, not including the Cover, the Tables of Contents and Authorities, any Certificate of Interested Entities or Persons, this certificate, and the signature block. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed 07/27/2020, in San Jose, California. /s/ Nicholas Heimlich Nicholas D. Heimlich (SBN 233232) 57/57
