PHUONG DAYE YO, ESQ., SBN: 257186 1 VO LAW FIRM, APLC

73 72 Prince Drive, Suite 108 2 Huntington Beach, CA 92647

Telephone: 714-375-9858 3 Facsimile: 714-375-9856

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Attorney for Plaintiffs, BOSCO TUAN TRAN, SONNY TRAN & SONNY & BOSCO, INC.

SUPERIOR COURT OF CALIFORNIA, COUNTY OF LOS ANGELES

LONG BEACH COURTHOUSE - SOUTH DISTRICT

BOSCO TUAN TRAN, an individual; ) Case No.: NC057268 SONNY TRAN, an individual; SONNY & ) BOSCO, INC., a corporation duly licensed by) [Assigned for all purposes to the Hon. Judge the State of California, ) Ross M. Klein]

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Plaintiffs,

vs.

WARREN E & P, INC., a corporation duly licensed by the State of Wyoming and affiliate of WARREN RESOURCES OF CALIFORNIA, INC., and DOES 1-50, inclusive, .

Defendants.

) PLAINTIFFS' OPPOSITION TO ) DEFENDANT'S MOTION FOR ) ATTORNEYS' FEES; MEMORANDUM ) OF POINTS AND AUTHORITIES; ~ DECLARATIONS OF ATTORNEY DAVE ) VO & BOSCO TRAN

) ) ) ) ) ) ) ) Date: April 30, 2013 ) Time: 8:30 a.m. ) Dept.: 11 ) )

) Complaint filed: March 6, 2012 ) - - .

)

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IIII

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OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

2 PLEASE TAKE NOTICE THAT on April 30, 2013 at 8:30 am in Department 11 of the above

3 entitled court, the Plaintiffs, BOSCO TUAN TRAN, SONNY TRAN AND S01\TNY & BOSCO, INC.. will

4 oppose Defendant WARREN E&P. INC.'s Motion for Attorneys' Fees.

5 This Opposition will be based on this Notice, the attached Memorandum of Points and Authorities.

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7 all pleadings, papers, records and files in this action and such oral and evidence as may be presented at the

8 time of this motion.

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11 Dated: April l <; ,2013

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Dav Vo sq. Attorney for Plaintiffs. BOSCO TUAN TRAN, SONNY TRAN AND BOSCO & TRAN, INC.

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OPPOSITION TO DEFENDANT)S MOTION FOR ATTORt~EYS' FEES

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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION

On or about November 28,2012, Cross-Defendants, Bosco Tuan Tran ("Bosco"), Sonny Tran, and

Sonny Tran ("Sonny") (hereinafter shall be collectively referred to as "Cross-Defendants"), filed a Special

Motion to Strike the Cross-Complaint ("Anti-Slapp Motion") of Warren Resources of California,

Inc.!Warren E&P, Inc. (hereinafter "WRCI"). At the Motion hearing on January 29, 2013, the Court took the

case under submission and later issued a written ruling that denied said Motion. The Court further found that

the Anti-Slapp Motion was frivolous pursuant to Code of Civil Procedure ("CCP") section 128.5. and

reserved the right to award attorney's fees to WRCI.

WRCI now brings a Motion for Attorneys' Fees and Costs and is requesting an outrageous and

unconscionable amount of $13,605.07 for its time in opposing the Anti-Slapp Motion. Not only the amollnt

is outrageous, but it would certainly shock the conscience of any reasonable practicing attorney in the

16 field of civillitigatioll. WRCI had a total of six (6) people and spent a total of 124.80 hours ill preparation

17 of the opposition and related documents to said Motion. With that amount of people and number of hours

18 spent on a task that only required no more than one (1) or two (2) people to work on, WRCI failed to meet its

19 burden to establish that the requested amount is reasonable as required by California Statutes and Case Laws.

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II.

22 ARGUMENTS

23 A. DEFENDANT FAILED TO MEET IT'S BURDEN OF ESTABLISHING THE ACTUAL FEE INCURRED OR REASONABLENESS OF THE FEES

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Code of Civil Procedure ("CCP") § 128.5(a), in relevant part, provides:

" Every trial court may order a party, the party's attorney, or both to pay any reasonable expenses, including attorney's fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay .. " [emphasis addedJ.

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OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

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Plaintiff bears the burden of establishing the reasonableness of the fees sought. CCP §1033.5(c)(5).

Competent evidence required for an attomeys' fee award includes testimony which explains the

services rendered, the time spent, etc. in detail analogous to time and billing records. Martino v. Denevi, 182

Cal.App.3d 553, 559 (1986). Also, the trial court will be aware of the nature and extent of the attorneys'

services from its observation of the trial proceedings and the pretrial and discovery proceedings reflected in

the file and, based thereon, can rely on its own deductions. ld. at 558; Honev Baked Hams. Inc. v. Dickens.

37 Cal.App.41h 421, 429 (1995). To be reimbursable as cost to prevailing party, expense must be reasonably

necessary to litigation and reasonable in amount. Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548. In

general, the reasonableness of attomeys' fees is determined by evaluating the hourly rate charged and the

time spent against the following factors; (1) the nature of the litigation; (2) its difficulty; (3) the amount

involved; (4) the skill required in its handling; (5) the skill employed; (6) the attention given; (7) the success

or failure; and (8) other circumstances in the case to ensure that the amount awarded represents reasonable

attorneys' fees [emphasis added]. Clarion Development Co. V. Falvev (1998) 206 Cal. App. 3d 438. 447;

quoting BelTV v. Chaplin (1970) 74 Cal.App.2d 669, 679.

This case arises out of a dispute over a driveway between two commercial propeliy owners. It is

certainly not a difficult and complex case. Even though Cross-Defendants filed the Anti-Slapp Motion, and

given WRCI's lead counsel in this case, Joshua Dale ("Attomey Dale"), experience, ofthilieen (13) years as

a practicing attomey, it should not have been very difficult for him to prepare an opposition and related

documents to said Motion. Mostly when he is charging $375.00 an hour. Please see Exhibit A of Attorney

Dale's Dec!. 1 In reviewing the invoices submitted by \VRCI in support of its Motion, Attomey Dale spent a

total of twenty-three (23) hours on opposing the Anti-Slapp Motion wh~n Cross-Defendants' attomey of

28 I Attorney Dale's Decl. shall refer to the declaration of Attorney Joshua Dale filed in support and concurrently with the pending Motion. 4

OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

!!

record, Dave Vo ("Attorney Vo"), only spent twenty-two (22) hours on said Motion. which included the 1

2 preparation of a Reply to WRCI's opposition that WRCI does not have to do. and attending the Motion

3 heai'ing that Attornev Dale did not attend. but rather his co-counsel did. Moreover, Attorney Vo only

4 charges Cross-Defendants a reasonable hourly rate of$150.00 per hour. Please see Exhibit A of Attorney

5 Vo's Decl.] With Attorney Dale's experience - mostly at his high hourly rate of$375.00 - he should not have

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7 taken much longer than it took Attorney Vo to prepare the Anti-Slapp Motion, which was only ten (l0)

8 hours.

9 Not only did Attorney Dale expended much more time on preparing the opposition and related

10 documents to the Anti-Slapp Motion than Attorney Vo in preparing said Motion. he had a co-counsel,

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Tamara Rider ("Attorney Rider"), helped out with preparing the opposition and related documents, whom 12

13 expended a whopping forty-nine point eight (49.8) hours. Attorney Rider has been in practice for about three

14 (3) years and charges $250.00 per hour versus Attorney Vo, whom only charges $150.00 an hour and has

15 been practicing law for almost five (5) years. Please see Attorney Dale's Dec!. and Attorney Vo's Dec!. In

16 addition to Attorney Rider helping out, WRCI also had four (4) paralegals or assistants, Kevin Gilliland,

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Kirsten Ronholt, Christina Sanchez and Miriam Dusca, that worked on opposing the Anti-Slapp Motion with 18

19 a total of an additional fifty-two (52) hours. These paralegals or assistants charge between $100.00 and

20 $125.00 per hour - almost as much as Attorney Vo charges Cross-Defendants. Hence, a total of six (6)

21 people alld about one hundred and twenty five (125) hours ill opposing the Anti-Slapp Motion. Please see

22 Exhibit A of Attorney Dale's Dec!. This total amount of hours and people for opposing an Anti-Slapp

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24 Motion is entirely unreasonable and outrageous - mostly in this economy these days.

25 In addition to the opposition to the Anti-Slapp Motion, WRCI submitted a Request for Judicial

26 Notice (lfRJN If) and the Declaration of Thomas Dahlgren ("Mr. Dahlgren's Decl. If) in support of its

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28 2 Attorney Vo's Dec!. shall mean the declaration of Attorney Dave Vo filed in support and concurrently with this opposition to Defendant's Motion. 5

OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

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1 opposition. Attomey Dale and this team expended about seven (7) hours in relation to preparing these

2 documents when the RJN and Mr. Dahlgren's Dec!. were the same or similar set of documents that were

3 filed previously in May 2012 with the Court in opposition to Cross-Defendants' Motion for Preliminary i

InjunctJOn. Please see Declaration o(Thomas Dahlgren in support O(.WRCI'S Opposition 10 MOIion/ilr I Prelzmll1ary InjunctIOn and Request/or Judzczal NOlzce, filed on :Hay), 2012. As the above documents were:

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7 prepared beforefor a prior Motion in this case without requiring much changes or additions, it should

8 have not taken Attorney Dale and his team another seven (7) hours to prepare it, but rather no more than

9 an hour or two. Again, a charge that is entirely excessive and outrageous.

10 WRCI then attached an invoice for costs. and in reviewing the invoice. it stated a fee for FED EX

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($17.57) and a fee for filing the opposition ($20.00). which total $37.57. vet the total at the bottom of the 12

13 invoice is a different and larger amount of$135.08. It is also wOlih noting that, according to the filing fee

14 schedule of the Los Angeles Superior COUli, there is no filing fee for filing an opposition to a IvIotion as the

15 moving pmiy had already paid the Motion fee. Thus. the filing fee listed on WRCl's invoice is questionable.

16 Please see Exhibit A (last page) of Attorney Dale's Dec!.

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18 . Most importantly, WRCI/ailed to meet its burden to establish that the attorneys'fees and costs are

19 reasonable under CCP §§128.5 & 1033.5 and the case laws above because nowhere in its Motion did it

20 mention or contend that thefees requested are a reasonable amollnt. WRCI entirely failed to discuss and-

21 meet the criteria for attorney's fees to be considered reasonable as layout in the Clayton case described

22 aboye. Moreover, although WRCI submitted an allegedly redacted version of its invoices. it failed to attach

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24 any documents showing that its client actually paid the requested amount of$13,605.07. Without such

25 . documents, the authenticity of the invoices submitted by WRCI are quite questionable. It is v,;orth noting

that the amount of$13,605.07 requested by WRCI for opposing the Anti-Slapp Motion is almost as much as I

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27 what Cross-Defendants had paid Attomey Vo thus far in this case, which is litigation since the

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OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

1 commencement of this case on March 2,2012 - over a year of lit gat ion. Please see paragraph lIfO (2) 0/

2 Attorney Vo's Dec!.

3 As clearly stated above, this case is certainly not a difficult case nor is opposing the Anti-Slapp

4, Motion considered complex - mostly given Attorneys Dale and Tamara's experiences in civil litigation, and

s the skills employed in handling it does not required as much people and hours as described above.

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"7 Therefore, the requested amount by WRCI of $13,605.07 is not only unreasonable, excessive and

8 outrageous, but WRCI failed to meet its burden to establish that such amount is reasonable and was actually

9 paid; and thus. the Court should deny said request in its entirety.

10 B. SHOULD THE COURT A WARD ATTORNEYS' FEES AND COSTS TO WRCI, IT

11 SHOULD BE AGAINST CROSS-DEFENDANTS ONLY AS IT IS CUSTOMARY PRACTICE

12 To avoid placing counsel in an impossible conflict situation, commentators have suggested that, in

13 most cases, the better practice is for the comi to impose the sanctions against the c1ient-pmiy, and leave it to

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15 the client and their attorney to work out the ultimate responsibility between themselves. Wong v. Davidian

16 (1988) 206 CA3d 264.272; citing Weil & Brown. Cal. Practice Guide: Civil Procedure Before Trial (1988) §

17 9:245.)

18 Should the Court decides to award attorneys' fees and costs to WRCI, it should be awarded against

19 the Cross-Defendants only and not the counsel of record as it is customary practice by the Court to avoid

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21 creating a conflict between the attorney and clients. Furthern10re, it is custom practice and proper procedure

22 that any award of attomey's fees and costs against the client may be later sought by the client against the

23 attorney. Thus, any award of attomeys' fees and cost should be awarded against the Cross-Defendants, and

24 not their counsel of record.

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OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

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III.

CONCLUSION

Based on the foregoing reasons, the Plaintiffs respectfully request that the Court deny Cross-

Complainant's, Wanen Resources of California, Il1c./Warren E&P. Inc., Motion for Attorney's Fees in its

entirety, or in the alternative, to award onlv reasonable and actual attorney's fees and costs to the Cross-

Complainant.

Dated: April ({ .2013

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q. Atton . for Plaintiffs, BOSCO IUAN IRAN, SON"NY IRAN AND BOSCO & IRA.N, INC.

OPPOSITION TO DEFENDANT'S MOTION FOR ATTORNEYS' FEES

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DECLARATION OF ATTORNEY DAVE VO 1

2 L Dave Yo, hereby declare as follows:

3 1. I am an attomey duly licensed to practice law before all courts of the State 0

4 Califomia. My law finll,YO LAW FIRM, APLC, is counsel for Plaintiffs/Cross-Defendants,

5 Bosco Tuan Tran (,'Bosco"), SOlmy Tran, and Sonny Tran, in this action. This declaration i

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7 submitted in support of Cross-Defendants' Opposition to Cross-Complainant's Motion f01

8 Attomey's Fees. The following facts are within my personal knowledge and, if called as

9 witness herein, I can and will competently testify thereto.

10 2. I have been practicing law for about five (5) years now, and have been working in

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the legal field for over ten (l0) years, My hourly rate for this case is $150.00, and I spent a total 12

13 oftwenty-t\vO (22) hours working on the preparation of the Anti-Slapp Motion and related

14 documents at issue in this Motion. The total time included my time for preparing the Anti-Slapp

15 Motion and related documents (10 hours), preparing the a response letter to opposing counsel's

16 letter (dated December 5,2013) (l hour), preparing the reply to Cross-Complainant's opposition

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18 and related documents (7.75 hours), and preparaing and attending the Motion hearing (3.25

19 hours). I believe my rate and time spent on preparing the Anti-Slapp Motion are reasonable

20 within the legal community for Los Angeles and Orange Counties. Attached please find a true

21 and redacted copy o/my office's Billing Statement #103 as Exhibit "A," and i·ncorporated herein

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by reference. 23

24 In preparing the Anti-Slapp Motion, I also prepared the Declaration of Bosco

25 Tran and all documents in support thereof, which only took me a total often (10) hours. Since

26 Attomey Joshua Dale has been practicing law for over thil1een (13) years and Attomey Tamara

27 Rider for three (3) years (please see Attorney Dale's Declaration in Support of the Pending

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-9-

DECLARATION

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Motion), I truly believe that they should have not have taken much longer than I have to prepare

said Motion since the pages amount (15 pages) was the same for the Motion and Opposition.

Given the fact that Attorney Dale has been practicing law longer than I have, the skill required

and time needed on preparing the opposition by Attorney Dale should have been equal or less

than the time it took me to prepare the Motion. Rather it took Attorney Dale twenty-three (23)

hours - more than double the time it took me to prepare the Motion and related documents - that's

not including Attorney Rider's time of 49.8 hours and supporting staffs' times of 52 hours. A

total of six (6) people and about 125 hours.

4. I have been counsel of record for this case since it was filed in March 2012, and

the total amount of attorney's fees that I have received from the Cross-Defendants are only

about $15,000.00. Cross-Complainant is requesting S 13,605.07 for opposing the Anti-SlaPl)

Motion. This is a huge difference in amount of attorney's fees in perfornling one task (opposing

the Anti-Slapp Motion) versus all tasks thus far in this case for Cross-Defendants.

5. Based on the foregoing, I truly believe that Attorney Dale and his team's

attorneys' fees and costs requested in the pending Motion are excessive and unreasonable.

I declare under penalty of peljury under the laws of th~ State of California that the

foregoing is true and correct and that this declaration was executed on April Ie:, 2013. in the

City of Huntington Beach, California. l\ \ "" h

Dave \,,(>, Es~ Declaran'l:---"

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DECLARATION

./':) Lf:,.\/I! Fi R~v'1. AP~::::; 73'2 P~:nce urive. Su!te

BiUing Staten1ent

.~~::!trgtG!l Beach. :.A.92647 -,-- 2:: 7~ 4-375-9858

"5 •

C1ient(s)

5/~ 5/2012

DESCRl?T!ON

Reviewed Defendant's C;oss-Cornpiair:t. L.egal Research Re: Special ;\t!ot~o;: to StriKe LA.r:tf-SL.~.PP r\ftotion) & C5Se Lav~ls In Support of it. ?~epared Special !\~ctior :0 Strike. Preparec Declarations of D2ve '-!e: & 30sco Tran. Proof of Se;--·,/ice & .A.H Reiated Dcc~imen"ts C'reparec Response Letter co Opposing Counsei L-etter Re: Soecial 'v10t:o, to Strike Under ?;:t!-SLP-,PP Statute

2', !2Ci2C" :3 :=\eviewed Defendant's Opposition to Special Motion :0 Strike, Reouest 'fo~ Judicial Notice & iJeciaration of Mr. Dahlgren :r Support of Oppos;:ion to Motion

J~ :20'2G~:3 3, Legal ReSearch Q" Case Laws /\ddl'ced ;n Defendant's Opposition to 'J~'21'20" 3 Special Motion to St~ike & Cl,8pared Reply to Defendant's Opposition &

Evidentiary Objec~;o" ~o 'Y1~. Dai";igre,,'s iJecia,ation. Proof of Service & ~elated :)ocs

J::28/2C~ 2 C'" :'29/2C",; 3

P,epared for Specia: ".i1ct'cn to Str;ke ris2r:r.g .Attended the Special Moton to Strike Hearing

,::::e2se ren-::t paymen: to C;U: :;TI!ce by the due da:e ir:d:cated above. urlless -:ay;:;e::,: :s ~ak.en fro iT) the tn..,iSI accou;!:. "7"hank you -:cr your business: Totai

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150.:1C

0.75 150 C'C

~ 50.08

0.75 150.00 ~:2 50 2.5 150.·::;0 .... 2 i ... a ~ .. <U b I I. ..,. & •

7 £ •

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PROOF OF SERVICE

STATE OF CALIFORNIA

COUNTY OF ORANGE

) ) ss: )

I am employed in the county of Orange, State of Califol11ia. I am over the age of 18 and not a party to the within action:

my address is 7372 Prince Drive. Suite 108. Huntington Beach. CA 92647.

On April \6 . 2013. I served the foregoing document described as CROSS-DEFENDANTS' OPPOSITION T

CROSS-COMPLAINANT'S MOTION FOR ATTORNEYS' FEES on the interested pm1ies by placing a true copy thereof,

enclosed in a sealed envelope as follows:

Joshua Dale, Esq. Michel & Associates, P.e. 180 East Ocean Boulevard, Suite 200 Long Beach, CA 90802

_X_ (BY U.S. MAIL) I caused such envelope. with postage fully prepaid thereon. to be placed in the United States mail at

Anaheim. Califol11ia.

(BY PERSONAL SERVICE) I caused such envelope to be hand-delivered to the offices above addresses.

___ (BY FACSIMILE TRANSMISSION) I caused the above-referenced document(s) to be transmitted to the above-named

person(s) at the following telecopier number [ ______ .J at or about the hours of ____ a/p.m.

I am "readily familiar" with the firm's practice of collection and processing con'espondence for mailing. Under that

practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Huntington Beach ..

Califol11ia in the ordinary course of business. I am aware that on motion of the pm1y served. service is presumed invalid if postal

cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit.

Executed on April~, 2013, at Orange County. Califol11ia.

I declare under penalty of perjury under the laws of the State ofCalifol11ia that the above is true and COtTect and that I am

employed in the office of a member of the bar of this Court at whose direction the service was made.

PROOF OF SERVICE