Opposition ObjectionsCal. Super. - 6th Dist.February 11, 2021wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O 21CH009861 Santa Clara - Civil Dmitry Stadlin, SBN 302361 STADLIN MARINHO LLP 111 N. Market Street. Suite 300 San Jose, California 95113 Tel: (408) 645-7801 Fax: (408) 645-7802 Email: ds@stadlinmarinho.com Attorney for Petitioner BRIAN CUONG TRAN Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/10/2021 4:23 PM Reviewed By: M. Sorum Case #21 CH009861 Envelope: 7843611 SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA BRIAN CUONG TRAN, Petitioner, V. MICHAEL HAN, Respondent. I. Case No.: 21CH009861 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES DATE: 12/21/2021 TIME: 2:00PM DEPT: 4 INTRODUCTION This is a post hearing attorneys’ fees request by Respondent MICHAEL HAN (“Respondent”) against Petitioner BRIAN CUONG TRAN (“Petitioner”) for attorneys’ fees Respondent claims t0 have spent in defending the Civil Harassment Restraining Orders (“CHRO”) case Petitioner filed against Respondent 0n February 11, 2021. Respondent seeks t0 recover attorneys’ fees in the amount 0f $35,180.00 from Petitioner. Petitioner submits this opposition opposing Respondent’s request because the Respondent is not deserving of fee recovery and the request is not reasonable nor necessary. 1 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES . .30rum wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O II. STATEMENT OF FACTS On February 11, 2021, Petitioner, by and through his attorney, filed a CHRO against Respondent. Petitioner alleged that between March and April in 2020, Respondent made, 01‘ caused t0 be made, withdrawals from a Bank 0f America business account in the amount 0f $584.54 Without Petitioner’s knowledge 01" consent. For a detailed chronology 0f these events, see Exhibit A. Petitioner also alleged that on April 30, 2020, Respondent burglarized his home. Petitioner does not object t0 Respondent’s Request for Judicial Notice filled concurrently With their Request for Attorney’s Fees. Petitioner claimed that Respondent essentially took $25,000.00 from him, Which was to be spent on the business - and it never was. Petitioner reported the incidents t0 the San Jose Police Department (Report #2 2020200699745 (theft) and Report #: 2020-201220457 (burglary). The San Jose Police Department forwarded Report #: 2020-200699745 to the Morgan Hill Police Department. On June, 3, 2020, the Morgan Hill Police Department officially opened a case for the theft incidents (Report#: 20001332). The Respondent, Michael Han, had cashed the Petitioner's check for $25,000.00, Which was t0 be deposited into the business bank account. The Respondent had never deposited those funds into the business account and kept the funds for himself. III. PROCEDURAL HISTORY The Petitioner filed a request for a CHRO on February 11, 2021. On March 5, 2021, the CHRO was served t0 Respondent at his home. The hearing for the CHRO was set for April 6, 2021. On March 29, 2021, Respondent, by and through his attorney, filed his response t0 the CHRO. On April 6, 2021, the Court continued the matter t0 June 2, 2021, for trial. On April 1, 2021, Respondent served a Deposition Notice to the Petitioner that included a Request for Production 0f Documents. On April 12, 2021, Petitioner filed a 2 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O motion to quash the Deposition Notice and Request for Production 0f Documents arguing that there is n0 right t0 Discovery in a CHRO case, and after explaining this to Respondent’s counsel. On April 28, 2011, Respondent filed an opposition t0 Petitioner’s motion to quash. On May 4, 2021, Petitioner filed a reply to the Respondent’s opposition. On May 11, 2021, the Court granted Petitioner’s motion t0 quash and affirmed that in a CHRO case there is n0 right t0 Discovery. On June 2, 2021, the hearing for Petitioner’s CHRO began but was not completed. The hearing was continued to June 14, 2021. On June 14, 2021, the parties presented their evidence t0 the Court and were ordered back t0 the Court 0n August 3, 2021 for the Court’s ruling. On August 3, 2021, the Court issued its ruling denying Petitioner’s request for a CHRO. In that ruling, the Court found that there was a business relationship between Petitioner and Respondent, and that the relationship had soured. The Court found that there were certain actions designed t0 harass, but did not hear evidence that Petitioner was emotionally distraught. The Court ruled that it could not conclude that there was no legitimate business purpose t0 the conduct of Respondent, and that the reason for the actions was t0 close the business. As far as the residential burglary aspect of the harassment, the Court ruled that it was a difficult issue, that it WAS suspicious, looked suspicious and that the Court understood Why Petitioner believed that the burglar was the Respondent - yet given the heightened evidentiary standard - the Court did not find that there was proof by clear and convincing evidence that it was indeed the Respondent that burglarized Petitioner’s residence. On October 1, 2021, Respondent filed this attorneys’ fees motion Where Respondent seeks reimbursement of attorneys’ fees and costs in the amount 0f $35,180.00. 3 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O IV. LEGAL ARGUMENT A. Respondent Should Not Be Awarded Fees The established case law makes clear that an award 0f fees under California Code 0f Civil Procedure section 527.6 lies within the sound discretion 0f the trial court. (Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802 - ["the decision Whether t0 award attorney fees t0 a prevailing party-plaintiff 0r defendant-under [Code 0f Civil Procedure] section 527.6 . . . is a matter committed t0 the discretion 0f the trial court"].) As Krug observed, "[t]he normal rule 0f statutory construction is that When the Legislature provides that a court . . . ‘may' d0 an act, the statute is permissive, and grants discretion t0 the decision maker." In the instant case, Respondent failed to establish that Petitioner’s petition for a restraining order was frivolous, unreasonable, or Without foundation. While not required for Respondent to prevail in the Court’s CHRO decision, the Court should consider that Petitioner was not acting in bad faith. Nothing in the record suggests that Petitioner was anything but the Victim in this case. Respondent formally resigned from Splend 0n February 2, 2020 and terminated all associations With Splend. Thereafter, Respondent interfered With the Splend business account at Bank 0f America by completing an unauthorized Withdrawal from that account and directing closure 0f the account, without Petitioner’s knowledge 01" consent. Respondent subsequently continued t0 interfere With the Splend business account at Bank 0f America by directing Bank 0f America to Withdraw money from that account and depositing that money into his personal bank account. Respondent provided no legal authority for his interference With the Splend business account but instead attempted t0 justify his subsequent interference by reason of his “frustration” With Petitioner’s alleged failure to remove him as a signatory on the Splend business account. (Han, Decl. Response t0 Trans’ Request for CHRO dated March 4 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O 29, 2021, 1H] 17-18.) He did not explain, however, Why he deposited the withdrawn funds into his personal bank account. That is, the first time Respondent withdrew money from the Splend business account, Respondent obtained a cashier’s check for the account balance and sent it to the Petitioner. (Han, Decl. Response to Trans’ Request for CHRO dated March 29, 2021, 1116.) Respondent has failed t0 explain Why he did not do the same in connection With Respondent’s subsequent Withdrawal thereby giving rise to Petitioner’s allegations 0f Respondent’s fraudulent activity in this regard. (Tran, Decl. ISO Request for CHRO, dated February 11, 2021, 11119-14.) Subsequently, Respondent burglarized Petitioner’s residence. Petitioner did What any person would do, he reported it t0 the police in the hopes that they would find the suspect and prosecute him. When the police and the District Attorney’s office delayed investigation and prosecution, Petitioner felt he needed the protection 0f a restraining order and applied to the Court for one. Although Petitioner was not able t0 meet his burden 0f proof at trial, Petitioner should not be punished monetarily for asking the Court for help and protection against the Respondent. Petitioner was fearful 0f the Respondent because the Petitioner recognized the Respondent as the burglar Who broke into the Petitioner's house. The Petitioner has known the Respondent for about 20 years and is very familiar With his gait, body movement, and posture. While the Court was required t0 find by clear and convincing evidence that there was harassment before issuing the order, that is not the standard that applies in deciding Whether to grant attorney’s fees. It is certainly in the Court’s discretion Whether t0 d0 so or not, but it adds a further monetary loss t0 Petitioner in addition to his knowledge that Respondent burglarized his house and got away With it. The unclean hands doctrine demands that a litigant act fairly in the matter for which he seeks a remedy. “He must come into court with clean hands, and keep them clean, or he will be denied relief, regardless of the merits 0f his claim." (Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978.) Conduct supporting an 5 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O unclean hands defense need not be criminal or an actionable tort. "Any conduct that violates conscience, 0r good faith, 01" other equitable standards 0f conduct is sufficient cause t0 invoke the doctrine." (Id. at 979.) The Petitioner recognized the Respondent as the burglar from the surveillance Video Petitioner obtained from his neighbor and filed a police report. After having known the Respondent for some time, Petitioner recognized Respondent’s gait, body movement, and posture. The surveillance Video presented at the hearing was persuasive and made the Court’s decision difficult When combined With the nature 0f the property disturbed in the burglary; Splend financial documents (Tran, Decl. ISO Request for CHRO, dated February 11, 2021, 111117-19) and that the burglary occurred after: (1) Petitioner alerted the schools that Respondent’s sons attended that Respondent was not allowed t0 use Petitioner’s address as Respondent’s address of record thereby infuriating Respondent as attested t0 by Respondent under oath in Court, and (2) eight days after Respondent’s unauthorized Withdrawal from the Splend business account (Tran, Decl. ISO Request for CHRO, dated February 11, 2021, 1114). The Court should also consider that the Respondent has misled the Court by essentially asserting that he was factually innocent 0f the theft 0f the $584.54 from the Splend business account. To further harass me, Mr. Tran filed a police report and contacted the bank falsely claiming that I had stolen the money. In response to Mr. Tran's false claims, on April 8, 2020, the bank removed the $584.54 from my personal account. After an internal investigation, Bank 0f America found n0 wrongdoing by me, and in May 2020 Bank of America credited my personal bank account for the $584.54 it had removed. (Emphasis added in bold.) (Han Decl. Response t0 Trans’ Request for CHRO, dated March 29, 2021, 1119.) 6 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O There was nothing false about Petitioner’s claims. The undisputed facts, even acknowledged by Respondent in his declaration, are that he caused the Withdrawal 0f $584.54 from the Splend business account and had that money deposited into his personal account. (Han Decl. Response t0 Trans’ Request for CHRO, dated March 29, 2021, 1118.) To characterize Bank 0f America’s action 0n June 18, 2020 [Exhibit H admitted into evidence at the June 14, 2021 CHRO hearing] as essentially a declaration 0f factual innocence is misleading. Respondent’s untruthfulness was further demonstrated When, under oath in Court, Respondent was asked if he had ever entered a building to commit a theft 0r crime. Respondent responded no. When then confronted With his arrest record in Court, Respondent then admitted that he was arrested in the past for grand theft. Respondent’s counsel attempted t0 rehabilitate Respondent 0n re-direct, but Respondent did perjure himself before this Court. The Court should exercise its discretion and not award him any Attorney’s Fees. B. Respondent’s Request for Attornevs’ Fees are Not Reasonable and Necessary Petitioner requests this court t0 reduce Respondent’s attorney’s fees request as they are not reasonable and necessary. A party seeking an award 0f fees is not necessarily entitled t0 compensation for the value of attorney services according t0 his or her own notion or to the full extent claimed. (Donahue v. Donahue (2010) 184 Ca1.App.4th 259, 2’7 1-274 -tria1 court must determine number of hours attorney reasonably expended.) The party seeking fees has the burden 0f showing that the fees incurred were allowable, reasonably necessary t0 the conduct of the litigation, and reasonable in amount. (Levy v. Toyota Motor Sales U.S.A., Inc. (1992) 4 Ca1.App.4th 807, 815-816). The initial calculation 0f the lodestar requires the court "to determine the reasonable, not actual, number 0f hours expended by counsel entitled to an award 7 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES wmflmOTI-PODNH Nwwwwwwwwl-tr-Iv-II-tr-Iv-II-tr-Iv-II-t OONGDCflr-PCJONHOCOOOQODO‘lr-POONI-‘O 0f fees. (Concepcion v. Amscan Holdings, Inc. (2014) 223 Ca1.App.4th 1309, 1320). Thus, counsel is "not automatically entitled to all hours they claim in their request for fees. They must prove the hours they [seek] were reasonable and necessary." (Id). "Trial courts must carefully review attorney documentation of hours expended; 'padding' in the form 0f inefficient 0r duplicative efforts is not subject t0 compensation." (Id). Thus, a court must exclude those fees that are excessive, redundant, and otherwise unnecessary. The Court's "role is not merely t0 rubber stamp the defendant's request, but to ascertain Whether the amount sought is reasonable," (Robertson v. Rodriguez (1995) 36 Cal. App. 4th 347, 361). Therefore, a Court is "not bound by the amount sought by defendants and [has the] discretion t0 award them a lesser sum." (Id. at 362). Because Respondent requests an award that is unreasonable and excessive, his request should be reduced as follows. Moreover, a “fee request that appears unreasonably inflated is a special circumstance permitting the trial court to reduce the award or deny one altogether.” (Serrano v. Unruh (1982) 32 Cal.3d 621, 635.) As the Court’s Order from the other case against Mr. Han, attached by Respondent’s Counsel to her declaration, clarifies - the crucial question is Whether the time expended 0n this matter was commensurate With the complexity, difficulty 0r novelty 0f the litigation. Petitioner in this case, again takes the same position as Petitioner did in the other case - that Respondent is not automatically entitled t0 all of the hours claimed, and that Respondent must prove such time spent was reasonable and necessary. Even after a thorough review 0f Respondent’s Counsel’s declaration, it is unclear What Jimmy Jacobs did on this case that was not duplicative 0f the hours spent by Ms. Curry. As a result, Petitioner requests that the Court strike any time spent by him 0n this case. The Court should also strike any time spent on litigating the discovery 0r deposition issue in this case because Respondent’s counsel was not successful and 8 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES mmflmOTr-POJNl-l Nwwmwwmwwr-tr-II-Ir-tr-II-Ir-tr-lr-lr-t OOQGDCNFPOONHOCOOOQODCHrhOONI-‘O achieved “limited success.” Additionally, pursuant t0 CCP 2025.410(d), “The court shall impose a monetary sanction under Chapter 7 (commencing With Section 2023.010) against any party, person, 0r attorney Who unsuccessfully makes 0r opposes a motion t0 quash a deposition notice, unless it finds that the one subject to the sanction acted With substantial justification or that other circumstances make the imposition 0f the sanction unjust.” Rather than filing a separate request for such a sanction, Petitioner asks the Court t0 simply not grant attorney’s fees for the time spent litigating the Motion to Quash that Respondent lost - especially since Respondent’s counsel was explicitly informed that there was no right t0 discovery in Civil Harassment Restraining Order cases. (See Motion t0 Quash filed in April 0f 2021, and supporting Declarations and Exhibits.) V. CONCLUSION Petitioner respectfully requests the Court to deny Respondent’s Request for Attorneys’ fees in the amount of $35,180.00 or, in the alternative, substantially reduce Respondent’s requested attorneys’ fee amount. The Petitioner asks the Court to deny the Respondent his request for attorney's fees. The Petitioner feels that he Will be victimized again by the Respondent if the Respondent is granted any attorney's fees. The Respondent should not be rewarded financially for his actions against the Petitioner. Here, because 0f Respondent’s misconduct, it would be unfair to impose any attorneys’ fees award t0 Respondent merely because Petitioner did not meet the burden of clear and convincing evidence. Respectfully Submitted, STADLIN MARINHO LLP9W DMITRY STADLIN, Esq. Attorney for Petitioner BRIAN CUONG TRAN Date: December 8, 2021. 9 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES mmflmOTr-POJNH Nwwmwwmwwr-tr-II-Ir-tr-II-Ir-tr-lI-lr-t OOQGDO‘lr-POONb-‘OCqucbmrthI-‘O PROOF OF SERVICE I, Dmitry Stadlin, declare that: I am over the age of eighteen years, and not a party to this action. My business address is Stadlin Marinho LLP, 111 N. Market Ste. Ste. 300, San Jose, CA in Santa Clara County. On the date below, I served the attached Petitioner Brian Cuong Tran’s Opposition to Respondent Michael Han’s Motion for Attorney’s Fees by email on: Kathryn C. Curry - kcurry@gcalaw.com I declare, under penalty 0f perjury under the laws of the State 0f California, that the foregoing is true and correct. Executed in San Jose, California on December 10, 2021. DMITRY STADLIN 10 PETITIONER BRIAN CUONG TRAN’S OPPOSITION TO RESPONDENT MICHAEL HAN’S MOTION FOR ATTORNEYS’ FEES