Diversified Medical Records Services, Inc. vs. Chartsquad, LLC

Reply to Opposition

Cal. Super. - 4th Dist.March 16, 2018

© 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O Electronically Filed by Superior Court of California, County of Orange, 09/19/2019 05:36:00 PM. DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. 30-2018-00979971-CU-BT-C) C ROA #122 Melanie Carpenter, ESQ 27134 Paseo Espada, Suite 221B San Juan Capistrano, CA 92675 Tel: 949-429-0361 melanie@chartsquad.com Attorney for Defendant SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE DIVERSIFIED MEDICAL RECORDS Case No.: 30-2018-00979971-CU-BT-CJC SERVICES, INC., a California Corporation, DEFENDANT CHARTSQUAD LLC’S Plaintiff, REPLY TO PLAINTIFF’S OPPOSITION VS. TO DEFENDANT’S MOTION FOR FEES AND COSTS CHARTSQUAD, LLC, a Nevada limited liability company; DOES 1 through 20, inclusive, Defendants DATE: SEPTEMBER 26, 2019 TIME: 1:30 PM DEPT: C18 RESERVATION NO: 73087103 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION On June 17, 2019 the Court of Appeal reversed the trial courts denial of the Special Motion to Strike and granted the Motion as to the 9" paragraph of the Complaint. As stated in the disposition of the opinion of the Court of Appeals, “The order denying the ani-SLAPP motion ig reversed and the trial court is directed to enter a new order granting the motion as to the allegationg of paragraph 9 of the complaint, striking paragraph 9...” DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -1 © 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O II. DEFENDANT WAS THE PREVAILING PARTY IN THE ANTI-SLAPP MOTION DECIDED ON APPEAL An Anti-SLAPP Motion, also termed a Special Motion to Strike, is a means of quickly disposing of causes of action, or striking portions of a complaint that seek to chill free speech. In ruling on the Defendant’s Anti-SLAPP Motion, the California Court of Appeals directed the trial court to “enter a new order granting the motion as to the allegations of paragraph 9 of thd complaint, striking paragraph 9...” This is clearly a success on Defendant’s motion. Th Complaint consists of a total of 10 paragraphs and one cause of action. Striking an entire paragraph of one cause of action most certainly effects the Plaintiff’s claims. Plaintiff is now left without any] allegation of actual harm that Defendant is capable of doing given the nature of Plaintiff and Defendant’s business. The anti-SL APP statute reflects the Legislature’s “strong preference for awarding attorney fees to successful defendants.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal. App.4th 328, 338 [42 Cal. Rptr. 3d 607] (Mann).) The term “prevailing party” must be “interpreted broadly to favor an award of attorney fees to a partially successful [defendant.” (/bid.| citing ComputerXpress, Inc. v. Jackson (2001) 93 Cal App.4th 993, 1018 [113 Cal. Rptr. 2d 625] ‘[A] party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achievg any practical benefit from bringing the motion. (Lin v. City of Pleasanton (2009) 176 Cal. App.4th 408, 425-426 [96 Cal. Rptr. 3d 730]. The relevant test is not whether the defendant gained “thd most important” benefit, it is whether the defendant obtained a practical benefit. City of Colton v Singletary, 206 Cal.App.4th 751 (2012). DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -2 © 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O III. DEFENDANT’S FEES ARE REASONABLE AND NECESSARY As detailed in Defendant’s motion for fees and costs, necessary and reasonable hours werd spent on the Anti-SLAPP appeal, and this motion. Plaintiff argues in its opposition that becausg Defendants requested all attorney’s fees associated with the Anti-SLAPP, Appeal, and the Motion for Fees and Costs, rather than providing some proportionate reduction, the motion must be denied Plaintiff cites ComputerXpress, Inc. v. Jackson 19 Cal. App 4™ 993, 1020 (2001) as authority fof this fabricated determination, that the motion must be denied simply because it did not include 4 reduced fee option. This assertion is inaccurate: the holding in Computer Xpress favors awarding Defendant attorney’s fees on a partially successful motion to strike. This disposition of Computer| Xpress was a directive to award fees to Defendant “in the amount to be determined by the trail court.” The trial court has historically always had the discretion to determine reasonable and necessary fees despite the requested amount. “[TThe court should determine the amount of timg spent on the successful claims, and “if the work on the successful and unsuccessful causes of action were overlapping, the court should then consider the defendant’s relative success on the motion in achieving his or her objective, and reduce the amount if appropriate.” Malin v. Singer, 217 Cal. App.4™ 1283, 1305 (2013). This exact quote is also included in Defendant’s Motion for Fees and Costs. Adding antiquated unnecessary verbiage to the prayer for relief does not eliminate thd court’s ability to determine fees here. There is absolutely no legal support for Plaintiff’s assertion in Section II of its opposition. In Computer Xpress, supra the court compared the award of fees and costs under 425.16 DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -3 OO 0 9 O N Dn hh W N = N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O to cases arising under the federal civil rights statues. Title 42 United States Code section 198§ (section 1988) provides that, in such cases, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.” Despite itg seeming neutral language, cases applying section 1988 hold that “[a] prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass of embarrass the defendant.” (Hensley v. Eckerhart (1983) 461 U.S. 424,429, fn. 2, 103 S.Ct. 1933, 76 L.Ed.2d 40 (Hensley); see also Hughes v. Rowe (1980) 449 U.S. 5, 14-15,101 S.Ct. 173, 66 L.Ed.2d 163.) In contrast, “a prevailing plaintiff “should ordinarily recover an attorney's fed unless special circumstances would render such an award unjust.’ (Hensley, supra, at p. 429, 103 S.Ct. 1933.). In Hensley the United States Supreme Court considered the proper application of section 1988 where the plaintiff prevails on some but not all of his or her claims. The court stated that, for purposes of the threshold determination of whether the plaintiff has prevailed at all} “ ‘plaintiffs may be considered “prevailing parties” for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.” ” (Hensley, supra, 461 U.S. at p. 433, 103 S.Ct. 1933.) These authorities support the conclusion that defendants in this case should be considered prevailing parties, and therefore should recover attorney fees and costs, notwithstanding their partial success on their SLAPP motion. As with the federal civil rights statutes and the California Public Records Act, the differential standard for awarding fees reflects a preference for compensating parties who further the public policies underlying the SLAPP statute through their litigation efforts. The approach adopted in the cases applying those analogous statutes, under which partial success reduces but does not eliminate the entitlement to attorney fees, therefore should be applied here. DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -4 © 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O IV. DEFENDANT’S MOTION INCLUDES HONEST REAL COSTS AND FEES INCURRED IN THE ANTI-SLAPP MOTION, APPEAL, AND THE MOTION FOR FEES AND COSTS Again, Plaintiff presents some argument that because it does not believe the work put forth in this case was as stated by Defendants, the Motion must be denied. Plaintiff provides zero legal support for this assertion. Defendant will amend the listed fees and costs (Exhibit A attached) for a typo regarding one date of emails between Defendant and Plaintiff’s counsel. (see Exhibit Al attached). Plaintiff would like to pain this typo as an intentional lie which is just unprofessional. A. TRAVEL EXPENSES Plaintiff asserts in its opposition that Defendant is not entitled to travel expenses which is false. Plaintiff cites Gorman v. Tassajara Development Copr., 178 Cal.App.4™ 44, 72 (2009 and Ladas v. California State Auto Ass’, 19 Cal. App.4" 761, 775-76 (1993). Neither of these cases provide the notion, as asserted by Plaintiff, that travel expenses are completely unavailable as cost in a mandatory award for fees and costs. Ladas specifically provides that “local travel expenses’ such as taxi cabs, mileage, and parking, are not reasonably necessary to the conduct of litigation These types of fees are considered convenient but not necessary. Defendant’s CEO and counsel in this matter do not reside in the state of California. Ag such, it is absolutely necessary for Defendant’s counsel to travel to California, via airplane, and have a place to stay while in the State. This is much less expensive that it would have been to hirg outside counsel (if Defendant had hired outside counsel, the attorney fees would be much higher as explained in Defendant’s motion). As such, the travel expenses are necessary and reasonable. DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -5 © 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O B. ATTORNEYS FEES ARE RECOVERABLE FOR IN-HOUSE COUNSEL REPRESENTATION AND THE MARITAL RELATIONSHIP BETWEEN COUNSEL AND THE DEFENDANT’S CEO IS COMPLETELY IRRELEVANT] Again, Plaintiff is making assertions without providing any legal support for such. Plaintiff also include information that is inaccurate without even making an effort to investigated the assertion: Defendant’s counsel in this matter is not a principle of ChartSquad, LLC Defendants counsel is an employee of ChartSquad and is representing ChartSquad in this casg outside her normal job duties. Plaintiff asserts that because the CEO of Defendant ChartSquad if married to counsel for Defendant herein, Defendant is not entitled to attorney’s fees and costg under Section 425.16. Plaintiff provides no legal support for this assertion. Throughout this case Defendant has been forced to defend itself against Plaintiff’s random erroneous accusations. As detailed in Defendant’s Motion for Fees and Costs, California Court consistently hold that the fact that Defendant has vet to pay attorneys fees does not amount to a denial of fees all together. Further, the fact that Defendant’s counsel is also in-housg corporate counsel does not amount to a denial of fees all together. (PLCM Group, Inc. v, Drexler, (2000) 22 Cal.4™ 1084, 1095: “an entity represented by in-house counsel may recover attorneys frees under Civil Code section 1717(a) even though it has not paid those fees.”) In Rosenaur v. Scherer 88 Cal. App.4th 260, 283 (Cal.Ct. App. 2001), the court explained that the reasonable attorney’s fees on in-house counsel, who is paid a salary and who does not charge thg corporate client, can be recovered pursuant to a statute that speaks in terms of “attorney’s fees and costs” such fees and costs are recoverable when accrued by outside counsel representing a party] on a partial por bono basis, where counsel has not waived the right to seek recovery of the attorney DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -6 © 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O fees from third parties, such as insurers, but only from the client. The fees were accrued, and the resources were expended by the attorneys. Id. at 284. In Macias v. Hartwell (1997) 55 Cal. App. 4" 669, the Defendant was awarded fees and costs due to lack of legislative intent to create a disparity between defendants who advance their own attorneys fees and those whose counsel look to outside sources as those fees are accrued and can be recovered. Defendant has provided a great deal of actual legal support for its request for attorney’ fees under 425.16. Plaintiff however has done nothing but sling insults. V. CONCLUSION For the above reasons, Defendant ChartSquad, LLC respectfully requests that the Court GRANT Defendant’s request for attorney’s fees and costs in connection with Defendant’s Special Motion to Strike. DATED: September 19, 2019 By: Melanie Carpenter, Esq Attorney for Deferfdant ChartSquad, LLC DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -7 © 0 J a nn BA W O N == N N N N N N N N O N mm e m e m p m e m p m e m e m co NN O N Wn BA W N = O O OVO 0 NN O N W R W I N D = O DECLARATION OF MELANIE CARPENTER, ESQ I, Melanie Carpenter, declare: 1. Tam an attorney duly admitting to practice law before the courts of the State of California and the attorney of record for Defendant, ChartSquad, LLC in the above-captioned matter now pending before the Orange County Superior Court, case number 30-2018-00979971- CU-BT-CJC. 2. Thave personal firsthand knowledge of the facts set forth herein and if called as a witness I could and would testify competently to the truth of the facts set forth in this declaration, 3. Attached as Exhibit A is a chart reflecting the AMENDED attorney’s fees billed in this matter daily. 4. Attached as Exhibit B is a chart reflecting the UPDATED costs associated with Defendant’s Anti-SLAPP Motion, Appeal, and Motion for Fees and Costs. Executed this 19 day of September, 2019 at Heber City, Utah. BY: Melanie Carpenter, ESQ Attorney for Defefidant ChartSquad LLC DEFENDANT CHARTSQUAD LLC'S REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR FEES AND COSTS -8 EXBHIBIT A DATE ACTIVIY TIME |CHARGE 3.24.2018 |Research Anti-SLAPP statute 4.5 $1,575.00 5.23.2018| Prepared Notice of Motion of Anti-SLAPP. Filed through Onelegal & serve 2.5 $875.00 5.23.2018 (Prepared Motion to Strike (Anti-SLAPP) 8.6 $3,010.00 5.23.2018|Reviewed Anti-SLAPP w C. Carpenter, discussed next steps 1 $350.00 6.20.2018|Prepared, reviewed reply to opp Anti-SLAPP file & Serve 6.5 $2,275.00 6.21.2018|Discussed case progression, opp and reply w C. Carpenter 0.5 $175.00 6.28.2018|Received and reviewed tenantive ruling 0.5 $175.00 6.28.2018|Emails with P. Counsel R. Owens Re: Submitting on the tenative 0.5 $175.00 6.28.2018|Appearance-Oral argument regarding Anti-SLAPP tenative 3.5 $1,225.00 7.20.2018|Prepare and send notice to Judicial Counsel per CCP 425.16 0.5 $175.00 7.20.2018|Research case law on Anti-SLAPP appeals 6 $2,100.00 7.20.2018|Prepare and review Notice of Appeal & serve 2 $700.00 7.30.2018 [Designation of record on appeal: prepare, review, serve 2 $700.00 8.1.2018|Prepare Case Info Cover Sheet/file 2 $700.00 8.2.2018|Received D's clerk transcript. Several emails to/from D. Counsel R. Owens 2.7 $945.00 8.6.2018|Received clerk's transcript: Review 1 $350.00 8.8.2018|Received & reviewed P's Notice Deposit of Clerk Fees 0.3 $105.00 8.9.2018|Prepare and serve deposit of clerk fees 0.3 $105.00 9.24.2018 (Prepare and review Appeals Opening Brief/file/serve 6 $2,100.00 10.25.2018|Received D. Appeals Reply Bf"ief. Review and discuss with C. Carpenter 5.5 $1,925.00 11.12.2018 |Meet with C. Carpenter on DMRS personal history, employment, and DMRS previous cases 3.2 $1,120.00 11.14.2018|Prepare Response to P. Reply Brief File/serve 6.2 $2,170.00 12.6.2018|Prepare and serve request for oral argument 2.2 $770.00 12.30.2018|Several emails w P. Counsel R Owens regarding the appeal 2.8 $980.00 1.7.2019|Received and replied to emails from P. Counsel R. Owens re: Stipulation to vacate trail (7 emails) 2.6 $910.00 3.21.2019|Appearance-Oral Argument in Appeals 3.9 $1,365.00 6.17.2019|Received and reviewed Appeals Court Ruling on Anti-SLAPP 2.6 $910.00 6.17.2019|Discussed ruling on Anti-SLAPP with C. Carpenter and plan moving forward 1.5 $525.00 6.30.2019|Research on Motion for Mandatory Fees and Costs 5 $1,750.00 7.1.2019|Research MSJ on remaining paragraphs of complaint 7 $2,450.00 7.7.2019|Prepare meet and confer letter to R. Owens including calculation of fees and costs 6 $2,100.00 99.4] $34,790.00 EXHIBIT B DATE EXPLANATION COST 5.23.18 Filing Fee - Motion to Strike 458.51 6.15.18 Service Fee - Motion to Strike 30.00 6.20.18 Filing Fee - Response to Reply to Motion to Strike 12.20 6.22.18 Filling Fee - Response to Reply to Motion to Strike Courtesy Copy 30.00 6.28.18 Travel-hotel for Appearance in Oral Argument RE: Anti-SLAPP 275.80 6.28.18 Travel-Flight to OC appearance in Oral Argument RE: Anti-SLAPP 386.40 7.24.18 Filling Fee - Notice of Appeal 909.95 7.30.18 Filing Fee-Civil Case Info Statement 7.50 7.31.18 Filing Fee - Designation of Record on Appeal 12.20 8.1.18 Filing Fee - Courtesy Copy Designation of Record on Appeal 30.00 89.18 OCSC Fee-Transcript on Appeal 128.14 9.21.18 Filing Fee-Appeallants Opening Statement 10.50 9.24.18 Filing Fee - Proof of Service Appellants Opening Brief 7.50 9.24.18 Service Fee - Opening Brief to Hon. T. Howard 125.00 11.13.18 Filing Fee - Appellants Reply Brief 7.50 11.15.18 Filing Fee - Proof of Service Appellants Reply Brief 7.50 11.15.18 Service Fee - Appellants Reply Brief Copy to Hon. T. Howard 143.25 12.6.18 Filing Fee - Request for Oral Argument 7.50 3.21.19 Travel-Flight to OC for appearance RE: Anti-SLAPP Appeal oral 336.60 3.21.19 Rental Car for appearance-Oral argument 251.94 3.21.19 Travel - Hotel for Appearance - Oral Argument 529.08 7.25.19 Filing Fee & Service Charge - Motion for Attorneys Fees and Costs 77.18 3784.25 CONE LEGAL Credit Card 504 Redwood Blvd. Suite 223 Sale Novato CA 94947 1-800-938-8815 ext. 1 Date 7/25/2019 TIN: 26-0259046 Customer 0104761 Bill To . chartsquad, llc Credit Sale 02097731 27134 Paseo Espada Suite 223 Amount Due $0.00 san juan capistrano CA 92675 Contact Billing Code Court Superior Court of California, Orange County Case Number 30-2018-00979971-CU-BT-CJC STATUTORY DISBURSEMENTS* AMOUNT Court Filing Fee $60.00 Court Technology Access Fee $2.25 SUBTOTAL $62.25 ONE LEGAL FEES AMOUNT eFiling Charge $9.95 eServe Charge $3.00 Convenience Feet $1.98 SUBTOTAL $14.93 FEES SUMMARY AMOUNT Disbursements $62.25 One Legal Fees $14.93 TOTAL CHARGED $77.18 Past due balance may be charged a late payment fee and/or a late charge of up to 1.5% per month (18% per annum). * These mandatory fees are charged by the court or required by statute and are not One Legal service fees. 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