Reply In Support of Motion For Attorneys Fees

Reply

Cal. Super. - 5th Dist.November 16, 2017

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Brian K. Cline (SBN 246747) brian@clineapc.com Michael Devlin (State Bar No. 265365) michael@clineapc.com CLINE, APC 7855 Ivanhoe Ave, Suite 408 La Jolla, CA 92037 Telephone: (858) 373-9337 Attorneys for Plaintiff KEVIN MURPHY And JULIA MURPHY E-FILED 7/29/2020 2:07 PM Superior Court of California County of Fresno By: A. Ramos, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO KEVIN MURPHY And JULIA MURPHY, Plaintiffs, V. FCA US, LLC, and DOES 1 through 10, inclusive, Defendants. Case Number: 17CECG03873 PLAINTIFFS REPLY IN SUPPORT OF PLAINTIFF’S MOTION FOR ATTORNEY'S FEES, COSTS, AND EXPENSES Date: ~~ August 5, 2020 Time: 3:30 p.m. Dept: 502 PLAINTIFF'S REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 L INTRODUCTION Defendant’s entire Opposition concedes that Plaintiffs’ Motion correctly informs the Court of the timeline and procedural history. However, Defendant, in a self-serving manner, tries to concoct an explanation as to why Plaintiffs’ counsel should not be paid the statutory attorney’s fees which Defendant forced Plaintiffs to incur." In so doing, Defendant’s argument completely ignores controlling authority on every single point made by Defendant. In effect, Defendant’s entire Opposition is a continued demonstration to this Court of Defendant’s cavalier attitude towards legal authority it must follow.> First, Defendant tries unconvincingly to distract the Court from Plaintiffs’ repeated settlement attempts which were ignored by Defendant and Plaintiffs’ constant clear direct communication regarding requests for a specific, legal offer from Defendant to consider. See Moving Papers, p. 3, line 5 through line 14; Devlin Decl. 49 11, 12, 17-18, 22-25, 30, 32, 36, Exs 2- 5,89. Once FCA finally presented a valid, legally sufficiently specific offer, Plaintiffs accepted! This fact cannot be ignored. Plaintiffs are not to be blamed for Defendant’s constant stonewalling. See Stokus v. Marsh, 217 Cal. App. 3d 647, 654 (1990) (“Parties who litigate with no holds barred in cases such as this, in which the prevailing party is entitled to a fee award, assume the risk they will have to reimburse the excessive expenses they force upon their adversaries.”); Peak-Las Positas Partners v. Bollag, 172 Cal. App. 4th 101, 114 (2009) (“A defendant cannot litigate tenaciously and then be heard to complain about the time necessarily spent by the plaintiff in response.”) Second, Defendant believes that Plaintiffs must essentially be forced to accept any 998 it ¢ provides and it is “unreasonable” to not just accept whatever Defendant puts forth. In truth, Defendant’s 998 was invalid as a matter of law as it contained no actual specific numbers for ! Despite the fact that Plaintiffs did, in fact, prevail and obtain their primary litigation objective Defendant attempts to suggest that somehow Plaintiffs did not. There is no question that Plaintiffs are the prevailing party here - a party is the “prevailing party” when it obtains its primary litigation objective, no matter whether it was successful on every single cause of action. See Friends of Spring Street v. Nevada City, 33 Cal. App.5th 1092 (2019). Here, Plaintiffs were at all times seeking the statutory repurchase of the Subject Vehicle which was the end result. 2 Plaintiffs once again remind this Court of Defendant’s counsel’s conduct during discovery disputes as outlined in Plaintiffs’ moving papers wherein Defendant (1) thumbed its nose at the discovery process and failed to show at noticed hearings, and (2) misguided the Court in breaches of the Duty of Candor as to facts, law, and evidence which caused Plaintiffs to have to constantly “set the record straight” as to law and facts which would result in the Court consistently agreeing with Plaintiffs throughout litigation. Enough is enough. 1 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 which Plaintiffs was to agree. The 998 contained a provision that no judgment could be entered - thus precluding Plaintiffs from any sort of enforcement mechanism as judgment being entered is how an accepted 998 Offer is enforced if need be.’ Defendant takes issue with the fact that rather than stay silent as to why the 998 wasn’t being accepted, Plaintiffs’ counsel reasonably and professionally gave the specific reasons to Defendant. This is the exact sort of “reasonable” action to which Courts have stated one receiving a 998 should undergo. See McKenzie v. Ford Motor Co., 238 Cal. App.4th 695 (2015) (in which the Court praised counsel for very clearly identifying the reasons for which it was declining a 998 Offer.) What’s more, in addition to providing reasons they were not accepting Defendant’s 998, Plaintiffs provided very clear 998s to Defendant that Defendant was free to readily accept and repeatedly did not! Defendant glosses over both of these points and hopes the Court will not notice. Defendant cannot fault Plaintiffs for not accepting its legally invalid 998 Offer and Defendants repeated ignoring of Plaintiffs 988s! Defendant completely ignores controlling law as these issues related to how its 998 was not legally valid and that Plaintiffs had every right to continue litigating the case appropriately until the case actually settled. See Etcheson v. FCA US, LLC, 30 Cal.App.5th 831 (2018) (wherein the court held that a trial court may not consider a technically invalid Code of Civil Procedure section 998 offer - for a 998 that mirrored the 998 in this case which offered no specific number or terms - in determining the reasonableness of attorney’s fees incurred following the making of that fatally vague and ambiguous offer); Goglin v. FCA US, LLC, 4 Cal. App.5th 462, 473-474 (2016) (wherein the The Court of Appeals for the Fourth District agreed completely with the trial court who sided with the plaintiff consumer when it stated that “until the case actually settled, the time spent by Goglin’s counsel on litigation activities was reasonable.”) 3 Plaintiffs’ counsel has made the mistake of accepting such a 998 from Defendant’s counsel’s office in the past for another client and that matter dragged on for another seven months and three motions seeking compliance in efforts to formally resolve the dispute; with at one point Mr. Universal’s office being told by the Court that it was “just embarrassing” how difficult it was making the process. See Register of Actions Niccola v. MBUSA4, Orange County Case Number 30-2017-00920807. 2 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 What’s worse, Defendant’s counsel insinuates that Plaintiffs’ counsel unethically billed and implies that Plaintiffs’ counsel billed in a manner that was unethical. “Ad hominem arguments, of course, constitute one of the most common errors in logic: Trying to win an argument by calling your opponent names (“Jane, you ignorant etcetera ....”) only shows the paucity of your own reasoning. (Of course, it happens all the time in real world politics.)” (Huntington Beach City Council v. Superior Court (2002) 94 Cal.App.4th 1417, 1430; Stone v. Foster (1980) 106 Cal.App.3d 334, 355 [“[p]ersonal attacks on the character or motives of the adverse party, his counsel or his witnesses are misconduct.”]; Cassim v. Allstate Ins. Co. (2004) 33 Cal. 4th 780, 796 [“Nor may counsel properly make personally insulting or derogatory remarks directed at opposing counsel or impugn counsel's motives or character.”]; Martinez v. Department of Transportation (2015) 238 Cal.App.4th 559, 566 [“Thus a defense attorney commits misconduct in attempting to besmirch a plaintiff's character. [citations omitted.] Attorneys are not to mount a personal attack on the opposing party even by insinuation.”]. Plaintiffs’ counsel has appeared in courts across the state and has had numerous courts inform the attorneys at Cline, APC that their billing practices are appropriate, ethical, and “reasonable.” Without authority, Defendant attempts to paint a different picture based on a self- serving desire to have the Court merely award what is “least expensive to FCA.” In so arguing, Defendant does not refute, in any way, Plaintiffs’ recital of the procedural history of this case. Rather, Defendant in essence tries to convince the Court that the work Plaintiffs’ counsel has performed wasn’t really necessary, “wink, wink.” Defendant completely ignores certain work Plaintiffs’ counsel had to perform due to Defendant’s own conduct, and when all else fails, tries to misdirect the Court from proper caselaw authority in support of how Plaintiffs’ incurred fees and costs are legally “reasonable.” Defendant fails to meet its burden in any way, shape, or form, to properly refute how Plaintiffs’ work was legally reasonable. Rather, Defendant’s entire Opposition is the exact sort of self-serving, conclusory argument unsupported by any evidence or legal authority that Courts have repeatedly stated is insufficient when arguing against the “reasonableness” of statutory attorney’s fees. 3 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As is to be expected, Defendant takes no responsibility for its actions that forced Plaintiffs’ counsel to incur additional work throughout litigation. After forcing Plaintiffs to incur more fees, now Defendant wants to complain about the work it forced Plaintiffs to incur. In sum, Defendant fails to meet its burden rebut Plaintiffs’ showing that (1) they are entitled to recover fees and costs as the prevailing party; and (2) they are entitled to recover fees and costs in the amount requested. II. DEFENDANT UTTERLY FAILS TO MEET ITS BURDEN TO THE COURT Although the submission of detailed time records is not required under California law,* if submitted, such records “are entitled to credence in the absence of a clear indication the records are erroneous.” Horsford v. Board of Trustees of Cal. State University, 132 Cal. App. 4th 359, 396 (2005). Having no obligation whatsoever to submit the time records, where a mere declaration would have sufficed, Plaintiffs’ counsel nevertheless submitted itemized fee statements to the Court because Plaintiffs’ counsel have nothing to hide. Plaintiffs’ counsel stand behind their billing practices; having had multiple courts across the state inform them that their billing is “reasonable.” “[TThe opposition should consist of a well-reasoned supporting memorandum and declarations supporting the fee opponent's position and specifically challenging any relevant untrue factual assertions made by the fee claimants.” Id. The challenging party has the burden of showing that attorney fees are excessive, and “general arguments that fees claimed are excessive, duplicative, or unrelated do not suffice.” Premier Med. Management Systems, Inc. v. Cal. Ins. Guarantee Assn. 163 Cal. App. 4th 550, 564 (2008). A verified fee bill is prima facie evidence that the costs, expenses, and services listed were necessarily incurred. Hadley v. Krepel, 167 Cal. App. 3d 677, 682 (1985). A declaration attesting to the accuracy of the fee bill is entitled to a presumption of credibility. Horsford v. Board of Trustees of Cal. St. U., 132 Cal. App. 4th 359, 396 (2005) (holding that “time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication that the records are erroneous”). Further, under California law, if a prevailing party presents an itemized fee bill, the burden shifts to the opposing party to make specific objections to particular time entries. McGrath v. County of Nevada, 67 F.3d 248, 255 4 See Martino v. Denevi, 182 Cal. App. 3d 553, 559 (1986); Sommers v. Erb, 2 Cal. App. 4th 1644, 1651 (1992). 4 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (1995) (fee opponent “bears the burden of providing specific evidence to challenge the accuracy and reasonableness of the hours charged”). Accordingly, Defendant has the burden of showing that the requested hours are duplicative, excessive, or unnecessary. See Gates v. Rowland, 39 F.3d 1439, 1449 (9th Cir. 1994). Failure to submit evidence on any specific aspect of a fee claim results in waiver of any objection. Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984) (emphasis added). Here, Plaintiffs submitted itemized fee bills and declaration attesting to their accuracy. Those fee bills are entitled to a presumption of reasonableness, so the burden shifts to Defendant to rebut this presumption with evidence. Defendant makes no attempt to meet this burden. Here, while Defendant claims that the vast majority of the fees reflected in the time records for Plaintiff’s counsel are improper, unnecessary, or excessive, Defendant fails to present any evidence supporting its position as to any single billing entry. For example, Defendant categorically objects to and seeks to deduct entire categories of time entries without any authority or explanation. (See Avikian v. WTC Financial Corp., (2002) 98 Cal. App. 4th 1108, 1119 (objections to attorney fee award must be supported by evidence; mere assertions that the claimed fees are unreasonable or excessive will not suffice). The overwhelming theme of Defendant’s Opposition is exactly what the Court in Premier Med. and Avikan stated were insufficient. Defendant cannot in a self-serving and conclusory fashion simply argue that fees are excessive without specifically pointing to sow and why such fees are excessive using evidentiary support. Defendant simply wants “reasonableness” to legally mean “least expensive to FCA.” III. PLAINTIFFS’ COUNSEL’S HOURLY RATE ARE REASONABLE AND WELL WITHIN THE PREVAILING MARKET RATE - DEFENDANT OFFERS NO EVIDENCE TO THE CONTRARY (IN FACT ITS OWN EVIDENCE SUPPORTS A $450/HOUR RATE!) The hourly billing rates of Plaintiffs’ counsel are comparable to rates charged by similarly experienced Consumer attorneys in California. Plaintiffs have submitted evidence before the Court demonstrating as much. “Affidavits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” 5 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Heritage Pacific Financial, LLC v. Monroy, 215 Cal. App. 4th 972, 1009 (2013) (emphasis added). In seeking to have Plaintiffs’ counsel’s hourly rates reduced, Defendant offers no evidentiary support that Plaintiffs’ counsel’s rates are excessive. Defendant simply argues that the rates are too high without providing any evidence whatsoever that the rates are too high. Plaintiffs’ counsel provided the Court with unrebutted evidence of prevailing markets rates that have been approved by various courts in this state. Defendant cannot simply, without evidence, have the Court reduce Plaintiffs’ counsel’s hourly rate. (See Graciano's Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 156, 50 Cal. Rptr. 3d 273, 287 (2006) (reversing the trial court’s award of a flat rate of $250/hour to all plaintiff’s attorney in 2004 consumer case because court failed to consider plaintiff's unrebutted declarations established the prevailing rates in the region for attorneys with comparable skills and expertise, and her evidence compelled a finding that the requested hourly rates were within the reasonable rates for purposes of setting the base lodestar amount. (E.g., Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782-783, 118 Cal.Rptr.2d 629; Hadley v. Krepel (1985) 167 Cal.App.3d 677, 682, 214 Cal.Rptr. 461.) Plaintiffs have met their burden of establishing the prevailing market rate for plaintiff’s counsel under Song-Beverly and Defendant has done nothing to rebut it. In effect, Defendant wishes that Plaintiff’s market rates were lower, but Defendant’s wish is not binding authority. What would be less expensive to Defendant is not the standard for “reasonableness.” Plaintiff’s counsel’s rates are well within the market rate for similar plaintiffs’ counsel (actually lower than many), have been repeatedly upheld, and such rates are not to be compared to a Defendant’s counsel’s rates. IV. PLAINTIFFS’ FEES ARE LEGALLY REASONABLE A. Controlling Law Makes Clear that Defendant’s Initial Communications Regarding Settlement Are Not Dispositive and Plaintiffs’ Counsel’s Ongoing Work Until the Case Ultimately Actually Formally Resolves is Legally “Reasonable” Defendant argues that it “offered” to settle the case immediately. Plaintiffs Motion did 6 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 not hide the correspondence from the Court as Plaintiffs’ counsel readily anticipated this self- serving argument. As Plaintiffs’ evidence demonstrates - and Defendant does not dispute in any way - Defendant’s initial “offers” included no actual legally specific terms for Plaintiffs to consider. Under basic contract law “[a]n offer must be sufficiently definite, or must call for such definite terms in the acceptance that the performance promised is reasonably certain.” Ladas v. California State Automobile Assn., 19 Cal.App.4th 761, 770 (1993). Offers should be contrasted with preliminary negotiations: “Preliminary negotiations or an agreement for further negotiations are not the functional equivalent of a valid, subsisting agreement.” Kruse v. Bank of America, 202 Cal.App.3d 38, 59 (1988). Defendant also argues that its legally invalid Section 998 Offers are somehow dispositive of the issue now before the Court as to “reasonableness” of fees and costs. Defendant’s own admission demonstrates that its first 998 Offer did not include a specific dollar amount and was therefore fatally vague and ambiguous as a matter of law mirroring that of FCA US, LLC’s 998 found to be invalid in Etcheson v. FCA US, LLC, 30 Cal.App.5th 831, 846 (stating that FCA’s 998 Offer which was in language only and did not list specific numbers as FCA’s 998 Offer here was “invalid”). In response to these initial preliminary negotiations and 998 Offer, Plaintiffs’ alerted Defendant to their concerns due to, among other things, the ambiguities in the “offers” and served their own very clear 998 Offers which Defendant ignored. Defendant takes issue with such responses and hopes this Court will not notice that this is exactly the conduct of a plaintiffs’ counsel in McKenzie v. Ford Motor Co., 238 Cal.App.4th 695 (2015) in which the Court praised counsel for very clearly identifying the reasons for which it was declining a 998 Offer. Defendant argues that it didn’t have specifics because it didn’t have the contract to review. This, of course, ignores the fact that the vehicle was purchased from Defendant’s authorized dealership and Defendant’s own discovery responses included the very document it purports it needed to make a more specific offer! Plaintiffs’ counsel was not being unethical in pointing out that Defendant’s offer lacked in any specific terms whatsoever - yet that is exactly 7 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 what Defendant brazenly accuses Plaintiffs’ counsel of doing. Simply put, Defendant’s counsel should be ashamed of themselves for the tone of its Opposition and the implied accusations it has levied against fellow upstanding members of the Bar. Perhaps if Defendant’s initial communications had been actual, specific, legal offers, this case would have settled immediately as Defendant purports was its wish. The fact that Defendant’s preliminary negotiations are not valid, legal offers is not to be held against Plaintiffs; yet that is exactly what Defendant asks this Court to do Caselaw is on Plaintiffs’ side as to the issue of the “reasonableness” of Plaintiffs’ incurred fees, costs, and expenses. In response to the gist of the argument made by Defendant in its Opposition that fees/costs should be cut off from Defendant’s early correspondence which included no actual specifcis, the Court need only rely on two cases that are dispositive and in Plaintiffs’ favor. Etcheson v. FCA US, LLC, supra., made it clear that (1) a Defendant’s 998 Offer which did not include specific numbers but merely purported to offer categories of payments was invalid due to being vague and ambiguous and (2) the question of “reasonableness” of attorney’s fees/costs is different question than the question of who “prevailed” related to ramifications of a 998 Offer. Etcheson, 30 Cal.App.5th at 842-846 (discussing the differences between the standards of accepting/declining a 998 Offer for purposes of deciding who “prevailed” vs. the standard of “reasonableness” of fees and referring to the 998 as “invalid”). Goglin v. FCA US, LLC, supra., makes it clear that until the case actually resolves counsel’s work is legally “reasonable.” See Goglin v. FCA US, LLC, 4 Cal. App.5th 462, 473- 474 (2016) (wherein the The Court of Appeals for the Fourth District agreed completely with the Hon. Joan M. Lewis of the San Diego County Superior Court who sided with the plaintiff consumer when it stated that “until the case actually settled, the time spent by Goglin’s counsel on litigation activities was reasonable.”) B. The Court is to Give Credence to Counsel’s Decision as to How to Litigate the Case Efficiently Just as discussed in Plaintiffs’ Moving Papers, it was anticipated that Defendant would mislead the Court by improperly citing to Levy v. Toyota Motor Sales, USA, Inc. Sure enough, Defendant does so. 8 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 There, the Court found that a non-contingent agreement involved inflated billing and reduced the award. Here, there is no dispute that Plaintiff’s attorneys are working on a contingent basis. Accordingly, the Court is not to do exactly what Defendant argues it should - assume that Plaintiffs’ counsel has inflated billing. The Court in Kerkeles v. City of San Jose, 243 Cal.App.4th 88, 104 (2015) makes this point for Plaintiff when it stated “It must also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee...By and large, the court should defer to the winning lawyer's professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.” C. Plaintiffs Have Prevailed and The Court is Not to Make an Itemized Assessment of Every Single Motion, Every Single Cause of Action, and Proportionality is Not the Test Under Song-Beverly A party is the “prevailing party” when it obtains its primary litigation objective, no matter whether it was successful on every single cause of action. See Friends of Spring Street v. Nevada City, 33 Cal.App.5th 1092 (2019). Thus, there is no question that Plaintiffs are the prevailing party here. Defendant is simply being intellectually dishonest with the Court when it argues otherwise. Further, fees should not be reduced based on an itemized assessment of whether Plaintiffs prevailed on every particular claim or every particular motion. See Sundance v. Municipal Court, 192 Cal. App. 3d 268, 273-74 (1987) (“Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee...the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. [Citation.] Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee...To reduce the attorneys’ fees of a successful party because he did not prevail on all his arguments, makes it the attorney, and not the defendant, who pays the cost”); Akins v. Enterprise Rent-A-Car Co., 79 Cal. App. 4th 1127, 1133 (2000) (“[L]itigation may involve a series of attacks on an opponent's case. The final ground of resolution may become clear only after a series of unsuccessful attacks. 9 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Compensation is ordinarily warranted even for those unsuccessful attacks, to the extent that those attacks led to a successful claim.”)(emphasis added). Finally, under Song-Beverly “proportionality” is not in any way the appropriate test for attorney’s fees as Defendant improperly argues. Graciano v. Robinson Ford Sales, Inc., 144 Cal. App. 4th 140, 164 (2006). And simply put, Defendant does not seem to understand what the term “contingent” means. Contingent is not a term defined to mean proportional, rather it is defined to mean “occurring or existing only if certain conditions are met.” Here, the evidence before the Court is that the case was taken on a contingent basis by counsel. See Cline Decl. q 3-4. Had Plaintiffs’ counsel not obtained a result for Plaintiffs they would not have been paid. That is the very definition of “‘contingency.” V. DEFENDANT DOES NOT ADEQUATELY OPPOSE PLAINTIFFS’ COSTS - IT ONCE AGAIN FAILS TO MEET ITS BURDEN Just as with its burden to argue fees, Defendant completely fails to meet any burden whatsoever as to how costs are not “reasonable.” Defendant in a self-serving manner states that it “Plaintiffs costs should be reduced.” That is not even remotely close to meeting its burden to oppose any costs; which again its own 998 contemplated paying! VI. CONCLUSION Plaintiffs’ counsel’s work was “reasonable” and Defendant’s Opposition in no way lives up to its burden to refute Plaintiffs’ evidence. Defendant’s Opposition is the exact sort of self-serving, conclusory argument, unsupported by evidence, that caselaw makes clear is insufficient. If Defendant actually wanted to settle when it disingenuously argues now that it wanted to, it was free to make a valid, legal offer sooner, respond to Plaintiffs repeated earlier settlement attempts, and/or accept one of Plaintiffs’ earlier 998 Offers. Dated: July 29, 2020 Cline, APC By: Ree MICHAEL DEVLIN 10 PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 DECLARATION OF SERVICE I, the undersigned say: I am over the age of 18 years, employed in the County of San Diego and not a party to the above-entitled action; that affiant's business address is: 7855 Ivanhoe Avenue, Suite 408, La Jolla, CA 92037; that on the date set forth below, the affiant served the within copies: e PLAINTIFF'S REPLY IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY'S FEES, COSTS, AND EXPENSES Addressed to: Brett H. Wanner, Esq. UNIVERSAL & SHANNON, LLP 2240 Douglas Blvd., Suite 290 Roseville, CA 95661 (916) 780-4050 BWanner@uswlaw.com [1] (By Mail) I placed each such sealed envelope, with postage thereon fully prepaid for first class mail, for collection and mailing at La Jolla, San Diego, California, following ordinary business practices, I am familiar with the practice of our office for collection and processing of correspondence, said practice being that in the ordinary course of business, correspondence is deposited in the United States Postal Service the same day as it is placed for collection. X] (By Email Service) I provided a true copy of each document to the email addresses for attorneys listed as Attorneys for Defendant(s). [1] (By Personal Service) I caused each such envelope to be delivered by hand to the addressee(s) above at: the address listed above. [1] (By facsimile) I transmitted all documents to all parties in this action by facsimile at the telephone number(s) indicated above and thereafter placed each such sealed envelope, with postage thereon fully prepaid for first-class mail, for collection and mailing at La Jolla, California. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. July 2, 2019 [sl John W. Evans JOHN W. EVANS PROOF OF SERVICE