Memorandum Points and AuthoritiesCal. Super. - 6th Dist.January 30, 2020Phillip G. Vermont, SBN 132035 Dominique M. Jacques, SBN 290036 RANDICK O'DEA TOOLIATOS VERMONT & SARGENT, LLP 5000 Hopyard Road, Suite 225 Pleasanton, California 94588 Telephone: (925) 460-3700 Facsimile; (925) 460-0969 Attorneys for Plaintiff, Stephens & Stephens (Walsh) LLC, a California limited liability company 10 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 11 12 13 14 15 16 17 18 19 Stephens & Stephens (Walsh) LLC, a California limited liability company, Plaintiff, vs. MiaSole, Inc., a California corporation, MiaSole Hi-Tech Corp., a California corporation, Hanergy Holdings America LLC, Hanergy Holding Group, LTD, and DOES 1 to 25, Defendants. Case No.: 20CV362433 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS'EES AND COSTS UNLAWFUL DETAINER Date: Time: Dept: 11 Action Filed: January 30, 2020 Entry of Judgment: August 19, 2020 20 21 22 23 24 25 26 I. INTRODUCTION Plaintiff STEPHENS & STEPHENS (WALSH) LLC, a California limited liability company ("Plaintiff') hereby applies for an award of attorneys'ees pursuant to the Judgment dated August 19, 2020. Plaintiff seeks an award of attorneys'ees of $33,350.00, costs of $205.00, and future attorney's fees estimated to be $730.00. H. STATEMENT OF FACTS This action arises from a commercial lease and its subsequent assignment and amendments, attached to the Complaint in this action as Exhibit 1. This action has been pending 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS'EES AND COSTS - CASE NO. 20CV362433 Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/18/2020 9:24 AM Reviewed By: M Vu Case #20CV362433 Envelope: 4956290 for nearly a year, in two (2) separate actions, due to the delay tactics of MiaSole Hi-Tech Corp. and the subsequent COVID-19 pandemic. A detailed description of the reasons for the fees sought herein are provided in the Declaration of Phillip G. Vermont in Support of this Motion, filed herewith. Defaults were entered against MiaSole, Inc., a California corporation, Hanergy Holdings America, LLC, and Hanergy Holding Group, LTD (collectively, "Defaulted Defendants*'), in both actions, most recently on or about March 2, 2020 in the above-entitled action. In contrast, MiaSole Hi-Tech Corp. filed unsupported demurrers which caused Plaintiff to dismiss and refile for what it believed at the time would be a more expedient resolution of this matter. Thereafter, 10 on the eve of trial in March 2020, this matter was continued for multiple months due to the COVID-19 pandemic. During the pendency of these actions, the parties have additionally dealt 12 13 14 with mechanic liens placed on the property by MiaSole Hi-Tech Corp. in breach of the Lease, the sale of the property, where the buyer would not accept a breaching tenant in the terms of sale, and various discussions of curing the default to no avail, incurred at cost to Plaintiff. Plaintiff 15 ultimately filed a summary judgment motion against the defendants, after multiple refusals by 16 the court to file the motion and after filing an Ex Parte Application seeking permission to file the 17 Motion. 18 The Motion was granted by this Court's Order on or about August 19, 2020 and 19 20 Judgment was entered thereon on the same date. A copy of the Judgment and Order are attached hereto and incorporated herein as Exhibit A. While the Order grants summary judgment in 21 Plaintiff's favor against all of the defendants to this action, the Judgment entered thereon was 22 only against MiaSole Hi-Tech Corp. A Request for Court Judgment against Defaulted 23 Defendants and Request to Amend Judgment to add Defaulted Defendants has been filed 24 25 herewith to correct the Judgment to conform to the Order granted. The Judgment awarded Plaintiff $2,284,512.69 in past-due rent and holdover damages owed through June 10, 2020. The 26 Judgment confirms that Plaintiff is the prevailing party for purposes of attorney fees and costs. 27 The Lease states, in pertinent part: 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS'EES AND COSTS - CASE NO. 20CV362433 476184 d 37. MISCELLANEOUS PROVISIONS F. Other Charges; Legal Fees....If either party commences any litigations against the other party... the prevailing party shall be entitled to recover from the other party reasonable attorney's fees and costs of suit. III. LAVV Attorneys'ees are allowed as costs when authorized by contract. (Cal. Code of Civ. Pro. I'I 1033.5(a)(10)(A).) In any action on a contract where the contract specifically provides for attorneys'ees and costs incurred to enforce that contract, such reasonable fees and costs shall be awarded to the prevailing party, in addition to its other costs. (Cal. Civ. Code I'I 1717(a).) 10 The Lease authorizes an award of attorneys'ees and costs to the prevailing party in the event of litigation. The Court has ordered that Plaintiff is the prevailing party. Therefore, 12 Plaintiff is entitled to attorneys'ees and costs, as the prevailing party. 13 Further, any work of counsel done at any unsuccessful stage of litigation is still fully 14 compensable if the litigation is ultimately successful. (Cabrales v. County ofLos Angeles (9'" 15 Cir. 1991) 935 F. 2d 1050, 1053.) Here, Plaintiff pursued an unlawful detainer action against the 16 defendants to this action to seek possession of their commercial real property and damages for 17 nonpayment of rent under the Lease. For strategic reasons, the original matter in case number 18 19CV357293 was dismissed without prejudice and the same cause of action, based on the same 19 facts and circumstances, was filed immediately thereafter under the instant case number. 20 Notably, both this instant action and the prior action in case number 19CV357293 have sought to 21 enforce the same rights of Plaintiff under the same contract terms, namely the eviction of the 22 defendants for nonpayment of rent prior to October 2019, pursuant to the Lease and its 23 amendments. Essentially, the first action and this instant action are one and the same. Plaintiff is 24 entitled to recover its full attorneys'ees as it ultimately succeeded on the cause of action 25 through their Motion for Summary Judgment. Therefore, Plaintiff should be awarded all of its 26 attorneys* fees expended to regain possession of its commercial real property from the 27 defendants. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS'EES AND COSTS - CASE NO. 20CU362433 476164 66 Additionally, Plaintiff's request $34,285.00 in attorneys'ees and costs is reasonable under the circumstances. All of the fees are associated with regaining possession of their property from the defendants and the $2,284,512.69 in damages awarded to Plaintiff. While three (3) of the defendants were defaulted, MiaSole Hi-Tech Corp. actively litigated this matter to completion, creating significantly increased fees and expenses for Plaintiff. Specifically, MiaSole Hi-Tech Corp. filed two (2) demurrers and all opposition against Plaintiff's Motion for Summary Judgment, requested a jury trial resulting in additional and ultimately unnecessary preparation by Plaintiff, permitting the recordation of mechanic liens against Plaintiff s property, causing issues with the sale of the property due to their breach of the Lease, and engaging in 10 numerous settlement negotiations over the course of a year, in vain. Additionally, Plaintiff incurred extraordinary and atypical fees associated with the unpredictability of the COVID-19 12 pandemic, which resulted in significant delay of trial and delay in scheduling the Motion for 13 Summary Judgment, requiring an ex parte motion, as well as the necessity for extensive research 14 into the instantaneous issuance of orders and ordinances to control the pandemic and specifically 15 limit the unlawful detainer rights of landlords. The various issues resulting in these attorney's 16 fees and costs are summarized in the Declaration of Phillip G. Vermont in Support of this 17 Motion, filed herewith and are reasonable under such circumstances. 18 IV. CONCLUSION 19 20 Plaintiff requests that this court award, in addition to the Judgment filed August 19, 2020 and the Memorandum of Costs filed on or about August 26„2020„attorneys'ees of $33,250.00, 21 additional costs of $205.00, and future attorneys'ees estimated to be $730.00 pursuant to the 22 executed Lease. 23 Date: September 18, 2020 24 25 26 By: 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS'EES AND COSTS - CASE NO. 20CV362433 476184 do PROOF OF SERVICE I, Sue Betti, declare: I am employed in Alameda County, State of California, am over the age of eighteen years, and not a party to the within action. My business address is 5000 Hopyard Road, Suite 225, Pleasanton, California 94588. I am readily familiar with the business practice for collection and processing of correspondence for mailing with the United States Postal Service and/or other overnight delivery. Under overnight delivery practice, all mailings are deposited in an authorized area for pick-up by an authorized express service courier the same day it is collected and processed in the ordinary course of business. On the date set forth below, I served the within: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ATTORNEYS'EES AND COSTS on the parties in this action by placing a true copy thereof in a sealed envelope, and each envelope addressed as follows: 10 Gary Sullivan, Esq. 1565 The Alameda, Suite 100 San Jose, CA 95126 uwsullivanlaw@umaikcom 12 13 14 15 16 [x] [x] (By U.S. Mail) I caused each such envelope to be served by depositing same, with postage thereon fully prepaid, to be placed in the United States Postal Service in the ordinary course of business at Pleasanton, California. (By Electronic Service) The above-referenced document was served by electronically mailing a true and correct copy through Randick O'Dea Tooliatos Vermont & Sargent, LLP's electronic mail system, to the email addresses set forth as listed above, and in accordance with Federal Rules of Civil Procedure, Rule 5(b). 17 18 19 [ x ] (By E-SERVICE - through One-Legal) I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on September 18, 2020, at Pleasanton, California. 20 21 22 Sue Bettt 23 24 25 26 27 28 PROOF OF SERVICE 476184 dacx