Reply To OppositionReplyCal. Super. - 4th Dist.January 24, 2017o M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 . . . Fa x (9 49 ) 75 6- 30 60 © 0 9 & n h W N N N N N N N N N N = Em em e m e m e m e m e R e m XX I O N nm R A W N = O O VU 0 0 N D = O Ali Parvaneh, SBN 218320 aparvaneh@madisonlawapc.com James S. Sifers, SBN 259105 jsifers@madisonlawapc.com Brett K. Wiseman, SBN 265770 bwiseman@madisonlawapc.com Susanna F. Wiseman, SBN 281234 swiseman@madisonlawapc.com MADISON LAW, APC 17702 Mitchell North Irvine, California 92614 Telephone: 949-756-9050 Facsimile: 949-756-9060 Attorneys for Plaintiff Lenore Penney ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 03/14/2019 at 03:50:00 PM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE -- CENTRAL JUSTICE CENTER LENORE PENNEY, an individual, Plaintiff, v. LA COLINA HOMEOWNERS ASSOCIATION, a California non-profit corporation; and DOES 1 through 10, inclusive, Defendants. Case No.: 30-2017-00899493-CU-BC-CJC ASSIGNED FOR ALL PURPOSES to: Hon. Judge Layne H. Melzer Dept. C12 PLAINTIFF LENORE PENNEY’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ATTORNEY FEES; SECOND DECLARATION OF BRETT K. WISEMAN, Hearing: Date: March 21, 2019 Time: 2:00 p.m. Dept.: C12 Reservation No.: 72958508 Action Filed: January 24, 2017 Trial Date: November 13, 2018 1 PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES -1- @ M A D I S O N L A W , A P C 1 7 7 0 2 Mi tc he ll No rt h, Ir vi ne , C A 9 2 6 1 4 Te l (9 49 ) 75 6- 90 50 . . . F ax (9 49 ) 75 6- 90 60 © 0 NN NY wn t kA W N N O N O N N N N N N N = = mm e m e m p m e m p m e m 0 NN O Y Un A W N = DO WO 0 0 N D W o N = OO Plaintiff Lenore Penney (“Plaintiff”) hereby submits this Reply to the Opposition to Motion for Attorney’s Fees as well as the untimely Supplemental Points and Authorities in Opposition to Plaintiff’s Motion for Attorney’s Fees. L INTRODUCTION Plaintiff has authority to bring this motion and timely brought this motion. Plaintiff substantiated its rates and hours as required. Defendant has submitted no admissible evidence as to the appropriate rates, and Defendant has not challenged a single hour as inaccurately billed. Defendant provides several itemized issues as to a number of issues that have no support and are invented, including purported bars to recovery of paralegal time, ADR requirements, waivers of time for drafting settlement agreements and this motion for fees, and prior payments by Defendant for sanctions. Not just are these objections without merit, they generally lack any attempt to support the contentions with case authority or sense. In this reply, Plaintiff addresses each of the specific objections made, and reiterates that the rates and hours have been substantiated and are not effectively challenged. Plaintiff therefore requests that this Court award the fees requested. Billing was already extremely conservative in favor of the client’s interest (in light of the Plaintiff’s age, health, and financial condition), and the fees are in no way inflated. II. DEFENDANT’S SPECIFIC CONTENTIONS LACK MERIT 1. Plaintiff Never Waived Entitlement to Attorney Fees Defendant argues that Plaintiff waived her right to fees for (1) drafting and executing the settlement agreement and for (2) drafting the attorneys’ fee motion. Defendant argues that this waiver is contained in paragraph 2 and 5 of the settlement agreement. Apparently Defendant is hoping that the Court will not read the settlement agreement, because there is no such language waiving these fees and Defendant has simply made up this claim. A complete copy of the settlement agreement (though redacted in other respects) was attached to Plaintiff’s moving papers as Exhibit 1. For the Court’s convenience, the entirety of paragraphs 2 and 5 PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES 2- M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 . .. Fa x (9 49 ) 75 6- 90 60 O© 00 3 & wv» Ah W N [3 J NS J T S CC N N N Lh A W N R O C NN ND D W N = O are recited, below: 3 Plaintiff shall file and serve a Motion for Attorneys’ Fees in the Action within 30 days of the executed AGREEMENT for consideration by the Orange County Superior Court. Plaintiff understands that any failure to file the Motion within this time parameter will forfeit her right to recovery of attorneys’ fees from the HOA. 5. Each party shall be responsible for his, her or its own attorney fees and costs incurred while litigating the Action and in drafting and executing this agreement, with the exception of reasonable attorneys’ fees awarded by the Orange County Superior Court via Motion for Attorneys’ Fees filed by Plaintiff identified in paragraph 2 above. Paragraph 2 says that Plaintiff can bring an attorney fee motion. Paragraph 5 says that no one gets fees except by way of Plaintiff’s attorney fee motion. In so doing, the parties made clear their intent that (1) Defendant does not receive attorney fees, and (2) that Plaintiff only gets attorney fees if Plaintiff timely brings a motion for fees pursuant to the negotiated timeline in the settlement agreement. Nothing in the settlement agreement provides any limitation, of any kind or of any nature whatsoever, as to those attorney fees recoverable to Plaintiff in a timely filed motion for attorney fees. This motion was timely filed, and Plaintiff has asked for her attorney fees. 2. Paralegal Fees are Recoverable Attorney Fees Defendant argues that paralegal time is not compensable as attorney fees. Defendant’s argument lacks even a single citation to authority and is contradicted by decades of unanimous cases from California courts as well as, notably, the United States Supreme Court. Awards of attorneys’ fees for paralegal time are routine in California. (see e.g., Sundance v. Municipal Court, (1987) 192 Cal.App.3d 268, 274, [“...awards of attorneys’ fees for paralegal time have become commonplace, largely without protest”].) Indeed, the idea that paralegal time is compensable as attorney fees was declared to be “self- evident” by the United States Supreme Court. (see e.g., Missouri v. Jenkins (1989) 491 U.S. 274, 285 [“We thus take as our starting point the self-evident proposition that the ‘reasonable attorney's fee’ PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES 3 M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 . . . Fa x (9 49 ) 75 6- 90 60 OO 0 NN 4 Wn bh W N = N O N O N N N N O N N O N m m em em p m e m em e m e m ee 0 NN O N wn BRA W N = O O OO 0 0 N D B R E W N = O provided for by statute should compensate the work of paralegals, as well as that of attorneys™].) Indeed, California courts may award attorney fees for an attorney’s staff, even where that staff does not hold a paralegal certification at all. (see e.g., Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 853, 888-890.) 3 Defendant Did Not Pay Discovery Sanctions Owed and is Not Entitled to a Benefit for Being Sanctioned Defendant claims that it should not have to pay fees associated with motions to compel during the September 2017 timeframe. Defendant, by way of the declaration of Dawn Ebert, claims that a check was provided during the pendency of the motions and already paid. This is not true. (Second Declaration of Brett K. Wiseman, 2.) The parties did not resolve this matter by any agreement during the pendency of the motion. Instead, the matter proceeded to a tentative ruling, upon which the parties submitted to the court’s ruling, which the Court entered as its final ruling. This may be confirmed by the Court’s own records. It is also true that the Court’s order required Defendant to pay sanctions to Plaintiff. However, Defendant did not actually pay these sanctions. Plaintiff's counsel has never seen such a payment. Plaintiff’s counsel inquired with the accounting department of Plaintiff’s firm, which confirmed that no such check for sanctions appears to have ever been received or negotiated by the firm. It is also clear that this amount was not paid directly to Plaintiff (or in a manner that Plaintiffs counsel would not have a record of the payment), as Defendant requested, by email, a copy of Plaintiff’s counsel’s firm’s tax ID and WO for the purposes of issuing the check in November, 2017. Mistakes can always be made in accounting and mailing, and this may be a mistake on one side or another. However, only one party has the ability to clear this up by presenting a negotiated check: Defendant. If Defendant truly paid attorney fees, then without debate, Plaintiff would agree to reduce the attorney fee demand accordingly to avoid a double payment. In the absence of any evidence that any payment was ever made and in light of the evidence of non-payment which is available to Plaintiff, Plaintiff declines to provide an unwarranted discount. In short, Defendant does not get a discount on the attorney fees incurred in this case because PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES 4- oO M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 . Fa x (9 49 ) 75 6- 90 60 Te l (9 49 ) 75 6- 90 50 . . © 0 NN a Wn bh L N = N N N N N N N N O N me e m e m e m e m e m e R ee pe 0 N N N Un RA W N = D O O N N N B R A W N = O Defendant’s conduct required Plaintiff to, successfully, bring motions to compel to address the discovery misconduct at issue. 4. There is No ADR Requirement Applicable to this Case; Even So, Plaintiff Attempted to Mediate this Case Defendant served a late “supplemental points and authorities” by fax only at approximately 3:00 pm on March 12, 2019. Defendant’s Opposition was due no later than March 8, 2019. Plaintiff therefore will respond, but has the time and opportunity to do so only in a cursory fashion as Plaintiff’s counsel does not have the time to review this matter and provide it the attention it would otherwise receive if the matter were timely served and presented. Defendant claims that Plaintiff failed to satisfy the pre-litigation ADR requirements under Civil Code § 5930. That statute provides that it does not apply to actions for monetary relief in excess of the amounts available in the small claims court. (§ 5930(b).) The Complaint in this action sought damages in excess of $90,060.40. (see e.g., Plaintiff's Complaint, Page 7, Paragraph 34; Second Declaration of Brett K. Wiseman, §3.) A claim for $90,060.40 is in excess of the jurisdictional limits of the small claims court and the pre-litigation ADR requirements cited by Defendant have no relevance to this matter whatsoever. Defendant also cites Civil Code § 5950 for the proposition that Plaintiff must file a certification of compliance with this ADR requirements at the time of filing the Complaint. As discussed above, the ADR requirement does not apply to this case, and therefore there is no requirement to file a certification of compliance with a non-applicable requirement. Moreover, even if the ADR requirement applied, the Defendant’s remedy under Civil Code § 5950 is to bring a demurrer or a motion to strike the complaint. Defendant chose not to bring such a motion, and waived any such issue. Lastly, Defendant impliedly argues that Plaintiff “refused to participate in alternative dispute resolution.” (see e.g., Civil Code § 5960.) Defendant fails to present any evidence that Plaintiff refused to participate in ADR or that any request was directed to Plaintiff to participate in ADR. Moreover, Plaintiff was very much interested in resolving this matter without litigation, including by mediation. (Second Declaration of Brett K. Wiseman, § 4.) Plaintiff personally had contacted Defendant several PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES -5- M A D I S O N L A W , A P C 1 7 7 0 2 Mi tc he ll No rt h, Ir vi ne , C A 9 2 6 1 4 Te l (9 49 ) 75 6- 90 50 . . . Fa x (9 49 ) 75 6- 90 60 OO 0 ~~ O&O Wn ~~ W W NM = BN O N N O N N N N N N ke em be d he m em p m p m p d ee 0 ~~ A Wn RA W N = O OVO N N S Y R N R OO times prior to litigation. Plaintiff’s counsel ultimately served a formal demand letter on October 11, 2016. That letter ended by stating, “Please let us know by no later than the close of business on October 18, 2016, as to whether the HOA would like to resolve this matter short of litigation.” (Exhibit 7 to the Second Declaration of Brett K. Wiseman.) Defendant responded and represented that it would not resolve the matter itself, and instead tendered the matter to its insurance carrier. A series of telephonic and written correspondence between Plaintiff's counsel and Defendant’s carrier ensued. Eventually, on January 3, 2017, Defendant’s insurance carrier conducted a property inspection at Plaintiff’s premises, with Plaintiff's counsel, Brett Wiseman, present. No formal discussion regarding “ADR”, per se, occurred, though Mr. Wiseman did suggest mediation and used that word. After the inspection, Defendant’s carrier stopped responding, and the Complaint was filed on January 24, 2017. Upon Defendant obtaining counsel, Plaintiff immediately sought mediation and proposed mediation on several occasions telephonically. These conversations were reiterated in emails, including an email on May 11, 2017, wherein Plaintiff’s counsel writes “Also, I would like to revisit our prior discussion regarding an early mediation. As discussed, I am a big proponent of trying to work this out early. Iknow there are some timing constraints. Assuming you will want some time to receive and review these discovery responses, could we shoot for a mediation in the first week of June or the end of May?” (Exhibit 8 to the Second Declaration of Brett K. Wiseman.) Ultimately, Defendant was unwilling to bring this matter to mediation. Indeed, the code even recognizes that the parties may attempt to mediate the case subsequent to filing. (see e.g., Civil Code § 5955.) There is only one party that has ever failed to refused to try to resolve this case, and that party is Defendant. There is only one party who has ever attempted to mediate, and that is Plaintiff - and there is not any code or requirement that Plaintiff mediate this case, it just made sense. Defendant’s arguments that Plaintiff has committed any wrong with respect to ADR options is disingenuous and reflective of the approach Defendant has taken in this matter which required litigation to get these issues resolved with Plaintiff’s property. III. THE RATES HAVE BEEN APPROPRIATELY SUBSTANTIATED Defendant contends that the attorney fee request is unreasonable. Plaintiff has provided PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES -6- M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 . . . Fa x (9 49 ) 75 6- 90 60 © 00 uN & Wn bh L N = N O N O N O N N N NN N O N o m em e m p m e m h m e m em 0 NN a Un B A W N = O Y N N N R E W I N D O declarations of all counsel involved as to their rate and provided reference to the objective Laffey matrix. Each demonstrates the reasonability of counsel’s rates. This is the evidence at issue. As cited in the moving papers, absent admissible evidence to the contrary, the Court should accept counsel’s representations of the reasonable rate. (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal. App. 4th 140.) Defendant has provided no relevant and admissible evidence to the contrary. Defendant’s counsel’ provides a declaration stating that only that “I have been practicing since June 2006, and am familiar with the prevailing attorneys’ fees in the insurance industry. The customary rate for attorneys’ fees for this type of case involving non-complex issues is $165.00 per hour.” Defendant’s counsel does not address the standard - Defendant fails to state that Defendant has knowledge or familiarity with rates for similar work, or rates in this locality, or what rates are appropriate for counsel of the relevant experience or specialties at issue in this action. As such, Defendant has failed to produce evidence tending to show what the reasonable rate would be. Moreover, Defendant’s counsel concedes that her experience relates to the “insurance industry” and addresses cases of “this type.” No party to this case is an insurance company, this is not a case concerning insurance issues, and Plaintiff’s counsel are not insurance counsel. Likewise, it is common knowledge that insurance defense rates are significantly below the rates on the open market. The more significant issue here is Defendant’s misleading description of this case as “non- complex.” It may be that Defendant so disregarded this action that it never truthfully understood the scope of this case. Though the case did involve some HOA and CC&R issues, this case focused on underground conditions and damages to the real property. Plaintiff’s counsel visited and inspected the ! Little is gained by going on at length about counsel’s representations. Plaintiff does note, however, that declarant Dawn Ebert now states that Plaintiff’s attorney fees are unreasonable, though she stated at the time of the Mandatory Settlement Conference in this case that Plaintiffs attorney fees were ‘very reasonable’, but that the impediment to settlement was simply] the property damage figures supplied Plaintiff’s experts. No doubt, this is why Defendant shortly thereafter offered to settle this case with Plaintiff to have leave to bring a motion for attorney fees - because Defendant knew what the attorney fees at issue were, and that they were reasonable. (Second Declaration of Brett K. Wiseman, § 5.) PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES He oO M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te l (9 49 ) 75 6- 90 50 . . . Fa x (9 49 ) 75 6- 90 60 Oo 0 NN NN n n kA W N = N O N N O N N N N N ND m m e e e m e s e s e e s e s 0 N N N L i D A W N = O YO N N N WL N N = O property on numerous occasions, the parties consulted with multiple experts, and conducted significant research. Opposing counsel’s rates are never particularly significant in an attorney fee dispute, but to the extent opposing counsel never touched this case outside the rubric of an ‘insurance case’, then opposing counsel’s rates uniquely lack relevance in this proceeding. IV. THE HOURS HAVE BEEN APPROPRIATELY SUBSTANTIATED Plaintiff has provided declarations of counsel describing the work they have performed. This is sufficient to substantiate an award of fees. “California courts do not require detailed time records, and trial courts have discretion to award fees based on declarations of counsel describing the work they have done and the court’s own view of the number of hours reasonably spent.” (Syers Properties, II, Inc., (2014) 226 Cal. App.4™ 691, 698.) Moreover, Plaintiff has also provided detailed time records. This is not required, as discussed in the moving papers, but is present. And, significantly, there is no challenge that any of the entries in the time records are incorrect. “[T]he verified time statements of the attorneys, as officers of the court, are entitled to credence in the absence of a clear indication the records are erroneous.” (Horsford v. Board of Trustees of California State University (2005) 132 Cal. App.4th 359, 396.) In the present circumstances, the Court should credit the entries provided and accept that this work was actually performed. V. CONCLUSION Plaintiff has submitted a proper attorney fee motion. Plaintiff has supplied all information required. No information has been submitted by Defendant that bears on the fees that ought to be awarded. Plaintiff reiterates her request for fees and respectfully requests that the Court award the fee award, in full, as requested. Respectfully submitted on this 14™ day of March, 2019, by: MADISON LAW, APC Brett K Wiseman. Attorneys for Plaintiff PLAINTIFF'S REPLY TO OPPOSITION TO MOTION FOR ATTORNEY FEES -8- M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 Te ! (9 49 ) 75 6- 90 50 . . . Fa x (9 49 ) 75 6- 90 60 Oo 0 9 N n bh W N = B R O N N O N N N N N N = mm e m e m e m e m mR pe d md pe 0 N S N wn R W N = O O 0 0 N D W N = O SECOND DECLARATION OF BRETT K. WISEMAN I, Brett K. Wiseman, hereby declare as follows: 1. I am an attorney licensed to practice law in the State of California. I am an associate at Madison Law, APC, counsel for Plaintiff Lenore Penney. I have personal knowledge as to the matters declared herein and can competently testify thereto if called upon to do so, except as to those matters declared as to information and belief which are believed to be true. I am familiar with the issues relating to the discovery sanctions addressed in Defendant’s Opposition. These were sanctions for Defendant’s failure to respond to discovery and refusal to cure. I was involved in the discovery requests, the meet and confer process, drafting the motions, submitting to the court’s tentative ruling, obtaining tax forms for payment of the sanctions amount, and otherwise. This has been my case, and I handled this issue. On or about November 16, 2017, the Court issued a tentative ruling granting the motions to compel brought by Plaintiff and provided for Defendant to pay $1,838.85 in sanctions within 30 days. The parties submitted on the tentative. I personally contacted the court clerk to communicate that resolution. Accordingly, the court entered the tentative as the final ruling. Though the matter of sanctions was discussed thereafter, I do not recall ever seeing any payment of the sanctions issued. I receive a copy of all correspondence that is directed to this firm on the subject of any case that [ am handling. At no time do I recall seeing such payment come in. I also have no record of any such payment in my email. This firm’s accounting records show no receipt of such payment, and Plaintiff’s accounts were not credited for such payment. It is also known to me that Defendant did not intend to pay Plaintiff directly, and I do not believe paid Plaintiff directly, as Defendant requested the tax form information for my firm to permit the payment to occur. This case is not within the limits of the small claims court. Instead, Plaintiff sued for more than $90,060.40 at the time of filing the Complaint. That number is included in the Complaint. (see e.g., Plaintiff’s Complaint, Page 7, Paragraph 34.) That damages number rose as additional repairs were made and additional damages discovered by experts. This was not a declaratory relief enforcement action covered by the ADR requirements of the Davis Sterling Act. I attempted to resolve this matter by mediation from the very inception. 1 understand Mr. Sifers SECOND DECLARATION OF BRETT K. WISEMAN [IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES 1 M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 . Fa x (9 49 ) 75 6- 90 60 Te l (9 49 ) 75 6- 90 50 . . © 0 NN O Y Wn BR W N N O N N O N N N N O N N m e m e m e m e m e m e m md p m ee d 0 N Y Rh W N = C V N N Y R W N = O 1 1" 1" 1 raised such interest in his first conversations. Indeed, the initial demand letter was signed by Mr. Sifers and included the language that “Please let us know by no later than the close of business on October 18, 2016, as to whether the HOA would like to resolve this matter short of litigation.”] (a true and correct copy of this letter is attached hereto as Exhibit 7.) I took the reins on this matter thereafter, still well before the case was filed. Defendant’s insurance company insisted on several delays for ‘investigation’, including requesting a pre-filing inspection of the property. That inspection took place on or about January 3, 2017. I attended that inspection, and have attended several inspections with all parties during this litigation. I believe I suggested at the initial inspection matters to the effect that, ‘this is pretty clear’, and ‘I think everyone should mediate.” Instead, the insurance carrier stopped responding, and we were forced to file suit on January 24, 2017. Immediately upon Defendant obtaining counsel, I had several conversations wherein I proposed that the case be mediated. Defendant insisted that Defendant wanted certain discovery responses prior to any mediation. This was confirmed by correspondence at the time, including quite plainly by email on May 11, 2017, wherein I state to Defendant’s counsel: “Also, I would like to revisit our prior discussion regarding an early mediation. As discussed, I am a big proponent of trying to work this out early. I know there are some timing constraints. Assuming you will want some time to receive and review these discovery responses, could we shoot for a mediation in the first week of June or the end of May?” (a true and correct copy of this email is attached hereto as Exhibit 8). Ultimately, Defendant refused to mediate this case until a mediation was almost set up, after many delays, approximately one week before the MSC. At that time, there was no longer a point. SECOND DECLARATION OF BRETT K. WISEMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES 2 © M A D I S O N L A W , A P C 17 70 2 Mi tc he ll No rt h, Ir vi ne , CA 92 61 4 . Fa x (9 49 ) 75 6- 90 60 Tel ( 94 9) 7 56 -9 05 0 . . © 00 3 O N Wn hb W N N O N O N N O N N O N NN OD N =m e m e m b m e k b m be d b e d ee t e d 00 ~~ O N hh BA W N = O YO N N S N E W N m o 9 At the mandatory settlement conference, our settlement judge pulled counsel for both sides away from their clients to discuss separately. At that time, the settlement judge stated, and Ms. Ebert verbally agreed, that Plaintiff’s attorney fee demand was very reasonable. However, it was then explained that the impediment to settlement was the property damage estimate provided. Indeed, this is no doubt why Defendant ultimately offered a settlement which included leave for Plaintiff to bring a motion for attorney fees - because Defendant already knew what those fees were, and considered them reasonable. I declare under penalty of perjury under the law of the State of California that the foregoing is true and correct. Executed at Irvine, California. Respectfully submitted on this 14" day of March, 2019, by: vd Z Brett K. Wiseman SECOND DECLARATION OF BRETT K. WISEMAN IN SUPPORT OF PLAINTIFF'S MOTION FOR ATTORNEY FEES -3- EXHIBIT “1” MADISON HARBOR, ALC ATTORNEYS AT LAW 17702 MITCHELL NORTH IRVINE, CALIFORNIA 92614 TELEPHONE: (949) 756-3050 » FACSIMILE: (949) 756-9060 October 11, 2016 Mr. Patrick Cadenhead VIA US. MAIL Property Manager La Colina Homeowners Association ¢/o Gold Coast Enterprises Community Management 200 E Katella Ave. Orange, California 92867 Re: 1051 Regis Way, Tustin, California Dear Mr. Cadenhead, Please be advised that this firm has the pleasure of representing Ms. Lenore Penney, with regards to her claims against La Colina Homeowners Association and Gold Coast Enterprises (collectively, the “HOA™). Please allow this letter to act as Ms. Penney’s demand that the HOA remediate the damages suffered by Ms. Penney as a result of the fig tree located on the community property just outside the property line for Ms. Penney’s property, 1051 Regis Way, Tustin, California (“Property”). The roots of that tree have caused substantial plumbing damage, and concomitant water damage, have further caused cracked flooring, damage to baseboards and wallboards, and other damage to the Property. To that end, ] direct your attention to the following: FACTS OF THE DISPUTE Ms. Penney is currently the owner of the Property. A fig tree has been permitted to grow in the common area surrounding the Property. The roots of this tree have grown into and underneath the Property and caused substantial interference with her use and enjoyment of the Property. As a result of this tree, Ms. Penney has continuously experienced various plumbing issues, leaks, moisture intrusion, and damage to the Property. This damage includes cracking in the garage and sinking of the atrium. In the prior two years, Ms. Penney has experienced major plumbing problems in her home as a result of the growing root of the fig tree planted on the HOAs property. The roots have caused the cracks in the living room’s concrete floors and damaged the carpets as well as the baseboards and wallboards of Ms. Penney’s home. The moisture from the fig tree has interfered with Ms. Penney’s quiet use and enjoyment of her land. Ms. Penney has incurred over $80,000.00 in repairs for plumbing, carpeting, and other damages to the Property due to the HOAs failure to properly maintain the common area outside the Property. IRVINE * SAN DIEGO * SAN JOSE MADISON HARBOR, ALC ATTORNEYS AT LAW Ms. Penney previously informed the HOA 6f these conditions on several occasions, and most recently on July 19, 2016. On July 29, 2016, the HOA sent a letter to Ms. Penney in reply requesting that she provide the HOAs Board of Directors with a copy of invoices detailing the repairs made to her house. To this day, the HOA has not acted or made efforts to repair or prevent the problems the fig tree has been causing to disturb Ms. Penney and such nuisance has been continuing. PENNY’S CLAIMS As a result of the HOAs wrongful conduct, Ms. Penney has claims against the HOA for, among others: NUISANCE The HOA has caused a nuisance to exist such that Ms. Penney has been damaged as a result of the HOAs failure to act, prevent, or remedy the disturbance caused by the fig tree. We expect that should this matter proceed to litigation, Ms. Penney will be able to prove that (1) the HOA failed to act to prevent or remedy the issue of the fig tree encroaching on Ms. Penney’s property which obstructed the free use of the Property and interfered with the enjoyment of the Property; (2) the HOAs failure to act has interfered with Ms. Penney’s use and enjoyment of her land; (3) Ms. Penney did not consent to the HOA’s conduct; (4) an ordinary person would be reasonably disturbed by the HOAs failure to prevent or remedy the issue; (5) Ms. Penney was harmed; (6) the HOAs conduct was a substantial factor in causing Ms. Penney’s harm; and (7) the seriousness of the harm outweighs the public benefit of HOAs conduct. Anything which is injurious to health, or is indecent or offensive to the sense, or an obstruction to the free use of property. so as to interfere with the comfortable enjoyment of life or property, is a nuisance. (Cal. Civ. Code § 3479.) The Declaration of Covenants, Conditions, and Restrictions (CC&Rs), Chapter XV 1I, Section 7 for the HOA also provides guidance as to a nuisance cause of action against the HOA. Specifically, the CC&Rs state that the result of every act or omission, whereby any provision, condition, restriction, covenant, easement or reservation contained in this Declaration is violated in whole or in part, is hereby declared to be and constitutes nuisance, and every remedy allowed by law or equity against a nuisance, either public or private, shall be applicable against every such result, and may be exercised by the Architectural Committee, the Association, or any other land owner in the tracts. As shown herein, the HOAs failure to act is both a breach of the CC&Rs which has caused a nuisance to which Ms. Penney may seek relief. BREACH OF THE CC&Rs The HOA breached its agreement with Penney pursuant to the CC&Rs which were signed and adopted on January 12, 1976. Pursuant to Chapter VII, Section 4(a) of the CC&Rs, IRVINE ® SAN DIEGO * SAN JOSE MADISON HARBOR, ALC ATTORNEYS AT LAW the HOA shall maintain the Common Area Within the properties and any improvement thereon, including the private sewer system. The fig tree that has grown under Ms. Penney’s house is planted in and on the HOAs property, which is also under the definition of a common area. We expect that should this matter proceed to litigation; Ms. Penney will be able to prove that (1) Ms. Penney and the HOA entered into an agreement (2) Ms. Penney did all, or substantially all of what was required of her under the agreement (3) all conditions required for the HOAs performance had occurred (4) the HOA unfairly interfered with Ms. Penney’s right to receive the benefits of the contract; and (5) Ms. Penney was harmed by the HOAs failure to act. (CACI 303.) BREACH OF DUTY The HOA has breached its duty owed to Ms. Penney as a result of its failure to act so as to prevent or remedy Ms. Penney’s issues as a result of the HOAs fig tree. We expect that should this matter proceed to litigation, Ms. Penney will be able to prove that (1) the HOA owes Ms. Penney a duty to exercise due care as the HOA is in charge of the management, operation, and maintenance of the common area pursuant to the CC&Rs; (2) the HOA breached its duty to Ms. Penney by failing to maintain the fig tree or act upon the issue; and (3) the HOAs failure to act has caused Ms. Penney to suffer damages. Traditional tort principles impose on homeowner associations that function as a landlord in maintaining the common areas a duty to exercise due care in maintenance and control of those areas under the homeowner associations control. (See e.g., Lamden v. La Jolla Shores Clubdominium Homeowners Assn, (1999) 21 Cal. 4th 249, 262.) NEGLIGENCE The HOA was negligent in causing Ms. Penney to suffer substantial harm as a result of the fig tree growing in and on the HOA’s common area. We expect that should this matter proceed to litigation, Ms. Penney will be able to prove that (1) the HOA owed Ms. Penney a duty of reasonable care to manage, operate, and maintain the common area; (2) the HOA has breached its duty to exercise reasonable care; (3) the breach was the actual and proximate cause of Ms. Penney’s damages; and (4) Ms. Penney has suffered damages as a result of HOAs negligence. A homeowner's association is liable to a member who suffers injury or damages as a result of the negligence of the association in failing to maintain a common area adequately. (Ritter & Ritter, Inc. v. Churchill Condo. Assn, (2008) 166 Cal. App. 4th 103, 120.) INJUNCTIVE RELIEF Ms. Penney is experiencing harm from a continuous nuisance caused by the fig tree and the impact it has on Ms. Penney’s Property. Resolving this harm is anticipated to require the removal of the fig tree from the common area by the HOA. We expect that should this matter proceed to litigation, Ms. Penney will be able to prove that (1) there is inadequate remedy at law that would be sufficient to remedy Ms. Penney’s damage; (2) harm will continue absent the removal of the tree; (3) that there is a likelihood that Ms. Penney will prevail on the merits underlying her causes of actions; and (4) that any harm to HOA in issuing the injunction is outweighed by the harm Ms. Penney has suffered and will continue to suffer. (See Lezama v. Justice Court, (Cal. App. 1st Dist. 1987) 190 Cal. App. 3d 15, 21.) IRVINE ¢ SAN DIEGO ¢ SAN JOSE MADISON HARBOR, ALC ATTORNEYS AT LAW DEMAND In light of the above, and in order to forgo litigation, Ms. Penney demands that the HOA remedy the present situation. In doing so, the HOA must provide reimbursement for all the costs of repairs that Ms. Penney has expended as a result of the growing fig tree undemeath the Property. To date, Penney’s total plumbing expenses incurred as a result of the HOAs failure to properly maintain the common area are as follows: 3/31/15 Rooter Hero Plumbing $8,900.00 5/26/15 Rooter Hero Plumbing $8,250.00 6/25/15 Rooter Hero Plumbing $5,000.00 6/9/15 Rooter Hero Plumbing $8,600.00 8/6/15 Rooter Hero Plumbing $12,500.00 8/2515 Rooter Hero Plumbing $19,200.00 3/20/16 Wise Choice Plumbing $10,600.00 5/22/16 Wise Choice Plumbing $8,000.00 Total Costs of Repair to Date: $81,050.00 Additionally, Ms. Penney is in possession of an estimate for further repairs to the Property in the amount of $9,010.40. The total cost to remedy the harm caused by the HOA is, presently, $90,060.40. This amount may increase should any of the remedial work give rise to additional harm caused by the fig tree. Additionally, should Ms. Penney be required to pursue her claims in litigation, she will seek to recover all of her emotional distress damages associated with the claims listed herein and will seek to recover all attorneys’ fees and costs incurred as authorized by the CC&Rs. Further, the HOA must also remove the fig tree from its current location in order to prevent any further damage to the Property. Please let us know by no later than the close of business on October 18, 2016, as to whether the HOA would like to resolve this matter short of litigation. 1 look forward to hearing from you. If you have any questions, or would like to discuss this matter further, please feel free to contact me. Sincerely, & \ - James S. Sifers, Esq. MADISON HARBOR, ALC IRVINE * SAN DIEGO « SAN JOSE PRC Reconstruction Contractors, Inc. Lic#B931249 PBC. 23839 Banning Blvd Carson, CA 90745 Phone (562) 490-6960 Fax (562) 490-6988 [D# 26-3948856 Client: Penney Lenore Home: (714) 731-4990 Property: 1051 Regis Way Tustin, CA 92780 Operator: RICARDO Estimator: Ricardo Casas Business: (562) 370-6015 Position: ~~ Estimator E-mail: Ricardo@prcrestoration.com Company: PRC Restoration & Construction Lic# B931249 Business: 2897 Gardena Ave Signal Hill, CA 90755 Type of Estimate: ~~ REPAIRS. Date Entered: ~~ 9/1/2016 Date Assigned: Price Listt CAOG8X_AUGI16 Labor Efficiency: ~~ Restoration/Service/Remode] Estimate: ~~ S-16-1459-RP NOTES: THIS ESTIMATE INCLUDES ONLY THE WORK OUTLINED IN THE ABOVE TYPED SCOPE, ANY ADDITIONAL WORK WILL BE CONSIDERED SUPPLEMENTAL TO THIS BID AND BILLED AS SUCH NOT INCLUDED ANY TESTING UNLESS OTHERWISE NOTED IN BID. PRC. PRC Reconstruction Contractors, Inc. Lic#B931249 23839 Banning Blvd Carson, CA 90745 Phone (562) 490-6500 Fax (562) 490-6988 ID# 26-3948856 Ricardo Casas Estimator Grand Total Areas: 1,619.98 SF Walls 784.47 SF Ceiling 2,404.44 SF Walls and Ceiling 784.47 SF Floor 87.16 SY Flooring 189.43 LF Floor Perimeter 0.00 SF Long Wall 0.00 SF Short Wall 269.78 LF Ceil. Perimeter 784.47 Floor Area 854.91 Total Area 1,619.98 Interior Wall Area 1,148.61 Exterior Walt Area 147.55 Exterior Perimeter of Walls 0.00 Surface Area 0.00 Number of Squares 0.00 Total Perimeter Length 0.00 Total Ridge Length 0.00 Total Hip Length S-16-1459-RP 9/122016 Page: 5 Main Level ) ) 18' 4" - fromm | F ---- Ll 5 oe ol Bathroomz. | > Bedroom = 16' 5" Sls 16'1" -T ets ATEn ra 1 -l i 6 \ Hallway # Bo | . } ~ { 9 om En 1 21 Co ” WEL t = Git do ¢ oF --- 2 6" Hlosel 4 = Studio b | rp " lit 11 I 7 & Living Room =| le || ol || Hid Si r 1s : - ® 2 55. X 177 Sy { BAS regime TL } he Main Level 5-16-1459-RP 9/1/2016 Page: 6 PRC Reconstruction Contractors, Inc. Lic#B931249 23839 Banning Blvd Carson, CA 90745 Phone (562) 490-6900 Fax (562) 490-6988 ID# 26-3948856 CONTINUED - Hall Closet DESCRIPTION QTY 19. Carpet - High grade 4.98 SF 15 % waste added for Carpet ~ High grade. 20. Interior door - Detach & reset - slab only 1.00 EA Studio Height: 8' DESCRIPTION QTY 21. Baseboard - 2 1/4" 26.25 LF 22. Seal & paint baseboard - two coats 26.25 LF 23, Carpet pad - High grade 134.77 SF 24. Remove Carpet - High grade 134.77 SF 25. Carpet - High grade 154.99 SF 15 % waste added for Carpet - High grade. 26. Interior door - Detach & reset - slab only 2.00 EA 27. Contents - move out then reset 1.00 EA Closet #2 Height: 8' DESCRIPTION QTY 28, Baseboard - 2 1/4" 16.58 LF 29. Seal & paint baseboard - two coats 16.58 LF 30. Carpet pad - High grade 23.47 SF 31. Remove Carpet - High grade 23.47 SF 32. Carpet - High grade 26.99 SF 15 % waste added for Carpet - High grade, 33. Detach & Reset Bypass (sliding) door set - Colonist 2.00 EA Bathroom Height: 8' DESCRIPTION QTY 34. Baseboard - 2 1/4" . 22.49 LF 35, Toe kick - pre-finished wood - 1/2" 240 LF 36. Seal & paint baseboard - two coats 2249 LF 37. Stain & finish toe-kick 240 LF 38, Floor preparation for resilient flooring 37.50 SF 39. Vinyl floor covering (sheet goods) - High grade 43.12 SF 5-16-1459-RP 9/1/2016 Page: 3 PRC. PRC Reconstruction Contractors, Inc. Lic#B931249 23839 Banning Blvd Carson, CA 90745 Phone (562) 490-6500 Fax (562) 490-6988 [D# 26-3948856 §-16-1459-RP Main Level Main Level DESCRIPTION QTY 1. Haul debris - per pickup truck load - including dump fees 1.00 EA 2. Final cleaning - construction - Residential 784.47 SF 3. Drywall Repair - Minimum Charge - Labor and Material 1.00 EA Living Room Height: 8' DESCRIPTION QTY 4. Baseboard - 2 1/4" 60.48 LF 5. Seal & paint baseboard - two coats 60.48 LF 6. Carpet pad - High grade 446.68 SF 7. Remove Carpet - High grade 446.68 SF 8. Carpet - High grade 513.68 SF 15 % waste added for Carpet - High grade. 9. Contents - move out then reset - Extra large room 1.00 EA Hallway Height: 8 DESCRIPTION QTY 10. Baseboard - 2 1/4" 10.20 LF 11. Seal & paint baseboard - two coats 10.20 LF 12. Carpet pad - High grade 17.61 SF 13. Remove Carpet - High grade 17.61 SF 14. Carpet - High grade 20.25 SF 15 % waste added for Carpet ~ High grade. Hall Closet Height: 8' DESCRIPTION QTY 15. Baseboard - 2 1/4" 8.33 LF 16. Seal & paint baseboard - two coats 833 LF 17. Carpet pad - High grade 4.33 SF 18. Remove Carpet - High grade 433 SF S-16-1459-RP 9/1/2016 Page: 2 PRC Reconstruction Contractors, Inc. Lic#B931249 23839 Banning Blvd Carson, CA 90745 Phone (562) 490-6900 Fax (562) 490-6988 ID# 26-3948856 CONTINUED - Bathroom DESCRIPTION QTY 15 % waste added for Vinyl floor covering (sheet goods) - High grade. 40. Toilet - Detach & reset 1.00 EA 41. Interior door - Detach & reset - slab only 1.00 EA Bedroom Height: 8 DESCRIPTION QTY 42. Baseboard - 2 1/4" 34.17 LF 43. Seal & paint baseboard ~ two coats 34.17 LF 44. Carpel pad ~ High grade 108.33 SF 45. Remove Carpet - High grade 108.33 SF 46. Carpet - High grade 124.58 SF 15 % waste added for Carpet - High grade. 47. Interior door - Detach & reset - slab only 1.00 EA 48. Contents - move out then reset - Large room 1.00 EA Closet Height: 8' DESCRIPTION QTY 49. Baseboard - 2 1/4" 10.92 LF 50. Seal & paint baseboard - two coats 10.92 LF 51. Carpet pad - High grade 11.77 SF 52. Remove Carpet - High grade 11.77 SF 53. Carpet - High grade 13.54 SF 15 % waste added for Carpet - High grade. 54. Detach & Reset Bypass (sliding) door set - Colonist 1.00 EA Labor Minimums Applied DESCRIPTION QTY 55. Vinyl floor covering labor minimum 1.00 EA 56. Plumbing labor minimum 1.00 EA Grand Total 9,010.40 S-16-1459-RP 9/1/2016 Page: 4 EXHIBIT “2” Brett K. Wiseman From: Brett K. Wiseman Sent: Thursday, May 11, 2017 8:56 AM To: '‘Dawna Hanson’ Cc: ‘Jean Moriarty’ Subject: RE: Lenore Penney v. La Colina Homeowners Assoc. et al. All, | have been pulled into a matter that is going to trial next week and it has consumed my time. May | please have a 2 week extension to respond to the discovery in this matter? Also, | would like to revisit our prior discussion regarding an early mediation. As discussed, | am a big proponent of trying to work this out early. | know there are some timing constraints. Assuming you will want some time to receive and review these discovery responses, could we shoot for a mediation in the first week of June or the end of May? Regards, Brett K. Wiseman Attorney at Law M Madison Harbor LAW COoRMMIIoN 17702 Mitchell North Irvine, CA 92614 Telephone: 949.756.9050 Facsimile: 949.756.9060 bwiseman(@madisonharbor.com This email communication is privileged and confidential. If you are not the intended recipient, please promptly notify the sender by reply email and delete the message. Any improper use or disclosure of the information contained herein is strictly prohibited. Please consider the environment before printing this message. From: Dawna Hanson [mailto:dawna.hanson@farmersinsurance.com] Sent: Friday, March 03, 2017 10:10 AM To: bwiseman@madisonharbor.com Cc: Jean Moriarty Subject: Lenore Penney v. La Colina Homeowners Assoc., et al. Mr. Wiseman, Attached please find our letter confirming the extension you granted to Ms. Moriarty to respond to the complaint to March 13, 2017. Dawna Hanson Legal Assistant to Jean M. Moriarty & John C. Wallace Law Office of Andrew W. Macrae Santa Ana Branch Legal Office Farmers Insurance Exchange & Affiliates 2677 N. Main St., Suite 200 Santa Ana, CA 92705 Mailing Address: P. O. Box 258829 Oklahoma City, OK 73125-8829 Direct Line: (714) 480-7254 Fax: (714) 558-0967 dawna.hanson@farmersinsurance.com This email communication may contain CONFIDENTIAL INFORMATION WHICH MAY BE LEGALLY PRIVILEGED and is intended only for the use of the recipients identified above. If you are not the intended recipient of this communication, you are hereby notified that any unauthorized review, use, dissemination, downloading, or copying of this communication is strictly prohibited. If you are not the intended recipient and have received this communication in error, please immediately notify the sender by reply email, delete the communication, and destroy all copies. *x*%*% PLEASE NOTE ***** This E-Mail/telefax message and any documents accompanying this transmission may contain privileged and/or confidential information and is intended solely for the addressee(s) named above. If you are not the intended addressee/recipient, you are hereby notified that any use of, disclosure, copying, distribution, or reliance on the contents of this E-Mail/telefax information is strictly prohibited and may result in legal action against you. Please reply to the sender advising of the error in transmission and immediately delete/destroy the message and any accompanying documents. Thank you. ***** Oo 0 9 O N wn A W N N N N N N RN N O N mm em mm e m e m e m e d e m em pe N Y hh A W N = O 0 N N N B R A W N = O 2 0 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. 1 am over the age of 18 and not a party to the within action, my business address is 17702 Mitchell North, Irvine, California, 92614. On March 14, 2019, I served the following documents: PLAINTIFF LENORE PENNEY’S REPLY TO OPPOSITION TO PLAINTIFF'S MOTION FOR ATTORNEY FEES; SECOND DECLARATION OF BRETT K. WISEMAN on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Ms. Dawn M. Ebert, Esq. HARTSUYKER, STRATMAN & WILLIAMS-ABREGO 2677 North Main Street, Suite 200 Santa Ana, CA 92705 [1] I am readily familiar with the firm’s practice of collecting and processing of documents and correspondence for mailing with the United States Postal Service. Under that practice, on the above date, the envelope was sealed and placed for collection and mailing following the ordinary business practices of our office. This results in the envelope being delivered to the United State Postal Service that same day, with postage thereon fully prepaid. [1] I caused such envelope to be delivered by hand to the office of addressee: [X] Isent the attached documents via email to addressees’ office at: dawn.ebert@farmersinsurance.com [X] Bydelivering such documents to an overnight mail service or an authorized courier in an envelope or package designated by the express service courier addressed to the person(s) on whom it is to be served [X] Ideclare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. ” Alex Ashari Executed on March 14, 2019, at Irvine, California.
