Law Offices of Gary S. Redinger, – Bar No.

74041
1 349 North Sierra Way
San Bernardino, CA 92410
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Phone : (909) 888-0081, No Email, No Fax
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Attorney for Defendants Mumtaz Khan, Shagufta S Khan,
4 Gaspar Benjamin Uribe, and Daniel Shaw Khan

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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SAN BERNARDINO
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TERRY S. LLOYD; ) Case No: CIVDS 1506606
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) Action Filed: 05/07/15, SAC : 02/18/17
Plaintiffs, ) Trial Held : 01/17/18; Judgment 03/23/18
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)
vs. NOTICE OF DEFENDANTS
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) OPPOSITION TO PLAINTIFF’S
SHAGUFTA S. KHAN; MUMTAZ KHAN; MOTION AND/OR REQUEST FOR
13 DANIEL SHAW KHAN, GASPAR )
BENJAMIN URIBE; AND DOES 1-100, ) ATTORNEY FEES; MEMORANDUM OF
14 inclusive. ) POINTS AND AUTHORITIES IN
) SUPPORT THEREIN.
15 Defendant(s). )
) [Assigned to Honorable Judge: Donna
16 Gunnell Garza in Dept. S24 for all purposes]
)
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) Hearing Date : 04/17/2018
) Time : 8:30 a.m.
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Dept. : S24
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TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD :
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PLEASE TAKE NOTICE that the above-entitled action by Plaintiff, (herein after
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referred to as “Plaintiff”), against Defendants, Defendants, Shagufta S. Khan, Mumtaz Khan,
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Daniel Shaw Khan, and Gaspar Benjamin Uribe (herein after referred to as “Defendants”
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collectively) hereby submits and respond, vehemently objects to the Plaintiff’s Request and/or
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Motion for Attorney Fee’s, for an order awarding attorney fees in the total sum of $ 59,867.50
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(“Motion” and/or “Attorney Fees”).

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 1 The Defendants submits this opposition to Plaintiff’s Motion based on

2 The Defendants’ respectfully submit this Opposition, the following Memorandum of

3 Points and Authorities in Opposition to Plaintiff’s Motion, the Declarations in support thereof,

4 and on such oral argument, testimony, documents, the SAC (‘operative pleading’), the Judicial

5 Notice and Exhibits filed concurrently, and evidence that may be presented at the hearing of the

6 moving papers.

8 MEMORANDUM OF POINTS AND AUTHORITIES

9 I. INTRODUCTION

10 Plaintiff’s have filed this action, on May 07, 2015, and the “Second Amended

11 Complaint” (‘SAC’) on 02/18/17, in regards to cause of actions, including breach of contract,

12 fraud, conversion, and elder abuse and the Defendants Cross-Complaint on or about 03/28/2016,

13 with three causes of action, for Conversion, Assault and Battery. Following almost three years,

14 the Court Trial was held on January 17, 2018, before the Hon. Judge Donna Gunnell Garza, the

15 court rendered judgment in favor of the Plaintiff, for the monetary amount of $110,000.00, in

16 damages for fraud cause of action against the Defendant Mumtaz Khan and Gaspar Benjamin

17 Uribe only, who are jointly and severally liable. The Plaintiff ‘s only one cause of action

18 (‘fraud”), where they are the ‘prevailing party’, and only against the two Defendants. In fact, the

19 Defendants Shagufata Khan and Kaniel Shaw Khan are the ‘prevailing party’ and/or ‘prevailing

20 defendants’. The Plaintiff files the Motion for Attorney fee’s based on only an ‘element’ of

21 Plaintiff’s costs and damages due to defendants’ conduct, however does not include any

22 contractual agreements, California Law and/or Statues that allow for Attorney Fee’s. The

23 Plaintiff’s bases for Attorney Fee’s are recoverable as an element of costs, pursuant to CCP

24 section 1033.5, is meritless and/or without any legal basis, especially since none of the

25 following: [¶] (A) Contract. [¶] (B) Statute. [¶] (C) Law.", apply herein.

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 1 ARGUMENT

2 II. APPLICABLE STANDARDS

3 California follows the “American Rule” regarding attorney fees – each party bears the

4 cost of their respective legal representation. However, exceptions exist. First, if the action is

5 based on a contract which contains an attorney fees provision, the prevailing party is entitled to

6 recover their reasonable fees. In this case there is no such prevision. Second, certain statutes

7 provide for attorney fees to the prevailing party. Examples include certain labor claims and

8 consumer actions. Again this is not the case herein. As such, the prevailing party must establish

9 a predicate contract or statute providing for an award of attorney fees. Cargill, Inc. v.

10 Souza (2011) 201 Cal.App.4th 962, 966. There is no contract or any previsions for any Attorney

11 fee’s.

12 The moving paper (“Motion”) instead claims that he is entitled to Attorney fee’s based on

13 an exception of Cal. Code Civ. Proc. § 1021, where fraud is concerned in ‘prosecute or defend an

14 action against a third for the protection of his interest’. (See Moving papers) In addition the

15 moving papers (“Motion”), also relies on the issue of Attorney Fee’s, as prevailing parties

16 pursuant to CCP § 1717, and CCP § 1033.5(a)(1A){a). However, the Court have denied attorney

17 fee’s based on these arguments, as the California Laws and/or Statues do not provide in such

18 circumstances. The Court’s instead rely upon the California “American Rule” regarding attorney

19 fees, especially when the alleged ‘prevailing party’ in fact was not the “prevailing party”, in all

20 causes of actions, and against all of the Defendants; as in this case.

21 Under the so-called “American Rule,” parties to litigation must pay their own attorney

22 fees despite prevailing in the litigation. See, Buckhannon Bd & Care Home, Inc. v. West

23 Virginia Dep’t of Health and Human Resources (2001) 532 U.S. 598, 602, stating the American

24 Rule generally applies in the United States, in both State and federal Courts.

25 There must be an explicit statutory or recognized equitable basis for a fee award.

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 1 A. Plaintiff Bear A Heavy Burden For Any Attorney Fee’s

2 California courts have long followed the Rule, and it has been codified in California

3 Code of Civil Procedure section 1021, which provides that, in the absence of a statute or

4 contract, prevailing litigants are entitled to an award of their costs but not their attorney fees.

5 See, Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565, citing §1021.

6 Because the American Rule is a codified California rule, absent a contract, a court cannot

7 award attorney fees to a prevailing litigant, unless there is an explicit statute or recognized

8 equitable doctrine authorizing the award. Even if all the criteria for a fee award are met, a court

9 may have discretion to deny fees. When there is a statutory or equitable basis for an award of

10 attorney fees and all of the criteria for a fee award on this basis have been met, this Court to deny

11 and/or defeat a motion for attorney fees, if an award of fees is discretionary, and if the

12 circumstances are such as to make a denial of fees appropriate.

13 The Court can only allow the Plaintiff for Attorney Fee’s when authorized.

14 Code of Civil Procedure section 1033.5 provides, in subdivision (a)(10), that attorney

15 fees are "allowable as costs under Section 1032" when they are "authorized by", either

16 "Contract," "Statute," or "Law." Thus, recoverable litigation costs do include attorney fees, but

17 only when the party entitled to costs has a legal basis, independent of the cost statutes and

18 grounded in an agreement, statute, or other law, upon which to claim recovery of attorney fees.

19 Accordingly, the Plaintiff should not be entitled to any attorney fee’s, as there is no contractual

20 right, statue, and/or California Laws, that support such a request (i.e. anti-Slap Motion, etc.).

21 Attorney Fee’s, only if they are allowed by Statue or Contract

22 Under California law, trial courts should exercise its discretion to apportion attorney fee

23 award in at least two circumstances: (1) in cases in which fees are contractually or statutorily

24 recoverable on some, but not all causes of action; and (2) in cases in which the prevailing party

25 was unsuccessful on portion of its suit. In re Gorina (Bankr.C.D.Cal.2002) 296 B.R. 23, 32–33.

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 1 Partial success, however, reduces the awardable fees and costs; and the party seeking

2 attorney fees bears the burden of demonstrating to the court the time and costs expended on the

3 claims on which it prevailed. Computer Xpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993,

4 1016-1020; Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 177-178; Lyons v. Chinese

5 Hosp. Ass’n (2006) 136 Cal.App.4th 1331, 1344. The moving party has not submitted any

6 documents, billing, spread sheet for the Defendants to review, other than a declaration claiming

7 the time spent on the case.

8 In the context of a contractual attorney fees, the California Supreme Court has

9 observed that :

10 Where a cause of action based on the contract providing for attorney’s fees is joined with

11 other causes of action beyond the contract, the prevailing party may recover attorney’s fees

12 under section 1717 only as they relate to the contract action. (McKenzie v. Kaiser-Aetna (1976)

13 55 Cal.App.3d 84, 88-90, 127 Cal.Rptr. 275; see Schlocker v. Schlocker, supra, 62 Cal.App.3d

14 921, 923, 133 Cal.Rptr. 485.) Describing the attorney’s fees provision, section 1717 specifically

15 refers to fees “incurred to enforce the provisions of such contract.” A litigant may not increase

16 his recovery of attorney’s fees by joining a cause of action in which attorney’s fees are not

17 recoverable to one in which an award is proper. Reynolds Metals Co. v. Alperson (1979) 25

18 Cal.3d 124, 129-30. Prevailing on only one cause of action, does not allow the Plaintiff to ask

19 for Attorney fee’s based on all of the time spent on the case, and without any supporting

20 documents, even if the court may allow for such fee request, on the arguments submitted.

21 When a party prevails on some, but not all, claims – allocation of fees is required :

22 Cases often resolve where a party prevails on some claims but not on others. In that

23 situation, the party is entitled to recovery only those fees associated with their successful

24 prosecution or defense. The Plaintiff should not be allowed any fee’s requests, but if allowed,

25 they must present adequate documents and/or amounts, given the circumstances.

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 1 “A trial judge deciding attorney fees may appropriately “allocate” or “apportion”

2 fees…” Ritter & Ritter, Inc. v. Churchill Condominium Ass’n (2008) 166 Cal.App.4th 103, 129.

3 “Apportionment of a fee award between fees incurred on a contract cause of action and those

4 incurred on other causes of action is within the trial court’s discretion.” Abdallah v. United

5 Savings Bank (1996) 43 Cal.App.4th 1101, 1111, as modified on denial of reh’g (Mar. 22, 1996).

6 B. ARGUMENT FOR ATTORNEY FEES MAY BE AWARDED ONLY TO A

7 “PREVAILING PARTY”AND MUST BE REASONABLE IN RELATION TO

8 THE RESULTS OBTAINED.

9 A plaintiff must be a “prevailing party” to recover attorney fees, and to qualify as a

10 prevailing party . . .or comparable relief through a consent decree or settlement.” Farrar v.

11 Hobby, 506 U.S. 103,111 (1992); Hewitt v. Helms, 482 U.S. 755, 760 (1987); see also

12 Buckhannon Bd. and Care Home, Inc. v. West Virginia Dep’t of Health and Human Resources,

13 532 U.S. 598, 603-04(2001). The determination that a plaintiff is the “prevailing party” merely

14 brings him across the “threshold” of eligibility, and it remains for the district court to determine

15 what fee is “reasonable.” Hensley, 461 U.S. at 433., if they are to be considered at all.

16 “The most useful starting point for determining the amount of a reasonable fee is the

17 number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”

18 Hensley, 461 U.S. at 433. “This calculation provides an objective basis on which to make an

19 initial estimate of the value of a lawyer’s services.” Id; see also Perdue v. Kenny A., 130

20 S.Ct.1662, 1671-1673 (2010); Gisbrecht v. Barnhart, 535 U.S. 789, 801 (2002); Schwarz v.

21 Secretary of Health & Human Servs., 73 F.3d 895, 901 (9th Cir. 1995); Albion Pacific Property

22 Resources LLC v. Seligman, 329 F. Supp. 2d 1163 (N.D. Cal. 2004) (Walker, J.).

23 Giving the term "prevailing party" its ordinary or popular sense, the Plaintiff is the

24 prevailing party in this litigation, but only in part, since the Plaintiff is not the ‘prevailing party’

25 for two of the Defendants (Plaintiff is the ‘loosing’ party in relations to the Defendants

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 1 Shagufata Khan and Kaniel Shaw Khan (“prevailing defendants”). The Plaintiff cannot carve out

2 those time which were spent in regards to these ‘prevailing Defendants’. Therefore, The Plaintiff

3 has failed in their litigation objective(s), as only one of the ‘causes of actions’ did he prevail, and

4 only to 50% of the Defendants. "Because award of contractual attorney fees is governed by

5 equitable principles, the Court must reject any rule that permits a ‘prevailing party’ (Plaintiff or

6 Defendant) to automatically recover attorney fees.

7 The Plaintiff’s Fee Request Should Be Denied In Its Entirety

8 “[T]he primary consideration in determining an appropriate award is reasonableness.”

9 Allard v. First Interstate Bank of Washington, N.A., 112 Wn.2d 145, 153, 768 P.2d 998, 1002

10 (1989). The California Supreme Court has held “[a] fee request that appears unreasonably

11 inflated is a special circumstance permitting the trial court to reduce the award or deny one

12 altogether…If the Court were required to award a reasonable fee when an outrageously

13 unreasonable one has been asked for, claimants would be encouraged to make unreasonable

14 demands, knowing that the only unfavorable consequence of such misconduct would be

15 reduction of their fee to what they should have asked in the first place. To discourage such greed,

16 a severer reaction is needful…” Serrano v. Unruh, 32 Cal. 3d 621, 635 (1982).”

17 To determine whether the time spent was reasonable, this Court must take into account

18 quality as well as quantity and must keep in mind the big picture. The Plaintiff’s cites no

19 credible authority and/or statues which entitles them for any fee’s, and in addition he does not

20 produce the required documents, detailing and/or outlining the time spent in this case, which

21 entitles him for a potential compensation for fee’s, especially given the fact that the Plaintiff is

22 only the ‘prevailing’ party to a few causes of action, and for only 50% of the Defendants.

23 Deemed a “prevailing party”, entitled to attorney fee’s is all that the moving paper is

24 relying upon.

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 1 The Court should exclude from this initial fee calculation hours that were not ‘reasonably

2 expended.’” Hensley, 461 U.S. at 434. In this instant, there is no supported documents (‘billing

3 records’) and/or submission of any ‘hourly fee’ structure for the Court and/or Defendants to

4 review, and no legal basis for any Attorney fee’s, in this instance. The Plaintiff has clearly failed

5 to produce contemporaneous billing records, and the declarations they have substituted are rife

6 with “serial” or “block billed” entries that are believed to have been impermissibly intermix the

7 time spent on multiple activities. The ‘block billing’ fees requested, if they qualify and/or are to

8 be considered by this Court, are believed to be excessive (if they are to be considered at all), as

9 they do not accurately reflect the ‘prevailing cause of actions’ portion time spent, and thus the

10 motion fails to include sufficient information to determine the nature and extent of the services

11 rendered.

12 The Supreme Court stated in Hensley that the prevailing party “should maintain billing

13 time records in a manner that will enable a reviewing court to identify distinct claims.”

14 Hensley,461 U.S. at 437; see id. at n.12 (counsel’s records must provide a proper basis for

15 determining how much time was spent on particular claims); see also Schwarz, 73 F.3d at 906

16 (“[A]n attorney should maintain billing time records in a manner that will enable a reviewing

17 court to identify distinct claims.”); Chalmers, 796 F.2d at 1210 (“[i]n determining reasonable

18 hours, counsel bears the burden of submitting detailed time records justifying the hours claimed

19 to have been expended.”). “Where the documentation of hours is inadequate, the district court

20 may reduce the award accordingly.” Hensley at 433; accord Trustees of Directors Guild of

21 America-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 433 (9th Cir. 2000).

22 The Motion must be denied, or the alternative, even if allowed to be considered, must

23 comply with the basic requirements of the various California Statue and/or Laws.

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 1 III. CONCLUSION

2 For the above foregoing reasons, The Defendants respectfully requests that the Plaintiff’s

3 motion for fees be denied or, in the alternative, that the fees requested be substantially reduces,

4 as there is no California Statue(s), and/or agreements made that warrant any Attorney Fee’s.

5 Dated : March 30, 2018

6 Respectfully Submitted,

7 LAW OFFICES OF GARY REDINGER

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__________________________
10 Gary Redinger, Attorney for Defendants
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 PROOF OF SERVICE
1 (CCP §§ 1005, 1011, 1013(a), 2015.5 et. seq.)

2 Superior Court of California, County of San Bernardino

Case Name : Lloyd Vs Khan et. al.
3 Case Number : CIVDS 1506606

4 I am a resident of the State of California, I am over the age of 18 years, and I am not a
party to this lawsuit. The business contact address is located at 349 N. Sierra Way, San
5
Bernardino, California 92410.
On the date listed below, I served the following document(s):
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NOTICE OF DEFENDANTS OPPOSITION TO PLAINTIFF’S MOTION AND/OR
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REQUEST FOR ATTORNEY FEES; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT THEREIN.
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[__] by transmitting via facsimile the document(s) listed above to the fax number(s) set
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forth below on this date before 5 p.m. Our facsimile machine reported the "send" as
successful.
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[X] by placing the document(s) listed above in a sealed envelope with postage thereon
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fully prepaid, in the United States mail, California, addressed as set forth below, under
regular business hours.
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[__ ] by placing the document(s) listed above in a sealed envelope with postage thereon
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fully prepaid, deposited with Federal Express Corporation on the same date set out below
in the ordinary course of business; that on the date set below, I caused to be served a true
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copy of the attached document(s).
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[__ ] by personally delivering the document(s) listed above to the person at the address set
forth below.
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LAW OFFICES OF THOMAS S. CARTER
17 Attorney Thomas S. Carter, for Plaintiff
250 WEST FIRST STREET., STE # 340
18 Claremont, CA 91711
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I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.

21 Dated: April 02, 2018

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Tom Lawyer

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