Gordon & Rees LLP Embarcadero Cé 88 KARINEH KHACHATOURIAN (SBN 202634) rE SP) JEFFREY M. RATINOFF (SBN 197241) OLGA RODSTEIN (SBN 209244) GORDON & REES LLP Embarcadero Center West 275 Battery Street, Suite 2000 San Francisco, CA 94111 lephone: (415) 986-5900 Facsimile: (415) 986-8054 Attorneys for Plaintiff EAGLE BROADBAND, INC. SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA il EAGLE BROADBAND, INC. CASE NO. 1-05-CV-050179 PLAINTIFF EAGLE BROADBAND, INC.’S OPPOSITION TO DEFENDANT DOE 5’S (THOMAS MOULD) MOTION FOR ATTORNEYS’ FEES (C.C.P. § 425.16(6)) Plaintiff, vs. DOES | through 25, inclusive, Defendants. Date: August 8, 2006 Time: 9:00 a.m, Dept.: 2 Judge: Hon. William J. Elfving Complaint filed: October 5, 2005 Trial Date: None Set Special Motion to Strike Complaint Granted: March 7, 2006 = INTRODUCTION Plaintiff Eagle Broadband, Inc. (“Plaintiff” or “Eagle Broadband”) takes issue with Mark Goldowitz’s request for approximately $66,175.39 in ettomeys fees in connection with DOE 5's ‘Anti-SLAPP motion. Mr. Goldowitz’s request goes beyond what is reasonable. This is | particularly true since Eagle Broadband spent a similar amount in prosecuting its claims against all defendants for the entire case. Rather than limiting his request to DOE 5, Mr. Goldowitz instead seks reimbursement for services rendered on behalf of DOE 4, even though the Court denied the motion as to him. Moreover, Mr. Goldowitz seeks costs and fees for services || performed unrelated to the Anti-SLAPP motion. ___ — se__ = = PLAINTIFF FAGLE BROADBAND, ING”S OPPOSITION TO DEFENDANT DOE #°S (FHOMAS MOULD) MOTION POR REASONABLE ATTORNEYS’ FEES (C.CP. § 425.16(c))Gorton & Rees LLP Embareadero Center West f Eagle Broadband recognizes that the trial court granted DOE 5’s motion, but that does not mean that it has to provide Mr. Goldowitz with a blank check. Although discussed more fully below, Mr. Goldowitz’s billing statements submitted in support of his request would rarely be acceptable in private practice. For example: + Mr. Goldowitz is applying 2006 hourly rates for work performed in 2005; + Mr, Goldowitz does not provide third party invoices for costs incurred; + Mr. Goldowitz charges for intra-office conferences even though he writes off the time for the lower billing attorney; ‘* Mr. Goldowitz charges for reviewing drafts of documents prepared by lawyers for | clients that are not his own; © Mr. Goldowitz charges for secretarial tasks such as calling the court clerk and scheduling hea Mr. Goldowitz charges for preparation of invoices; «© Mr. Goldowitz charges to conduct research about his own client; and © Mr. Goldowitz charges for correcting the work of his associates. Mr, Goldowitz’s inflated request for attorneys’ fees does not satisfy the purpose or requirements of the Anti-SLAPP statute, and therefore, it should be denied, severely reduced, or deferred until Eagle Broadband’s appeal of the March 7 order granting DOE 5’s Anti-SLAPP motion is resolved. Il. BACKGROUND DOE 4 and DOES filed a consol lated motion to strike on November 16, 2005. Declaration of Karineh Khachatourian In Opposition ‘To Motion for Attorneys’ Fees (“Khachatourian Decl.") Exhs. A. and B. Defendants’ memorandum in support of its motion was less than nine pages. Jd. The parties thereon agreed to an extended briefing period and hearing date. On January 20, 2006, Plaintiff filed its consolidated opposition. In response, Defendants’ filed a consolidated reply on February 15,2006. Khachatourian Decl. Exh. C. The Court issued its ruling on March 7, 2006 granting the motion with respect to DOE 5 but denying it with respect to DOE 4. Khachatourian Decl. Exh. K. 2 TIAINTIFP FAGLE BROADBAND, INC.'S OPPOSITION TO DEFENDANT DOE 5S (THOMAS MOULD) MOTION FOR REASONABLE ATTORNEYS’ FEES (CCP. § 425.16(0))re 2000 Gordon & Regs LLP Embarcadero Contr West ‘San Francisco, CA 941 On March 22, 2006, Mr. Goldowitz sent Eagle Broadband’s counsel a letter demanding $53, 582 in attomeys’ fees but if paid immediately, the amount was reduced to $48,224. Khachatourian Decl. Exh. D. In response, Eagle Broadband requested additional time to consider the offer including the necessary back up. Khachatourian Decl. Exh. E. Eagle Broadband’s counsel also suggested global settlement discussions to which Defendant's counsel agreed. Further, Eagle Broadband agreed to enter into a confidentiality agreement to encourage both sides to transmit its billing information, /d. at Exh. G. Ultimately, Defendant's counsel ‘was unwilling to provide the back up. Nonetheless, on May 22, 2006, after waiting several months for back up that never arrived, Plaintiff's counsel made a $15,000 cbunter-offer. Khachatourian Decl. Exh. H. In the interim, Plaintiff filed its notice of appeal with respect to DOE 5 on May 4, 2006. Jd. at Exh. M. In response to the May 22 letter, Defendant’s counsel | | indicated an intent to provide a counter-offer and the parties entered into an additional stipulation to extend time to file its motion for attorneys’ fees. Jd. at §9; Exh. I. Several weeks later, Defendant’s counsel refused to provide a counter-offer. abruptly discontinued settlement talks, and filed its motion for attorneys’ fees, Khachatourian Decl. $9. LEGAL ARGUMENT A. Applicable Legal Standards. In reviewing Mark Goldowitz’s motion for attomeys” fees, the Court must determine whether the request is reasonable. The matter of reasonableness of the attorneys’ fees request is withi the sound discretion of the trial judge. Wilkerson v. Sullivan, 99 Cal.App. 4! 443, 448 (2002). Among those categories of hours spent by counsel not considered reasonable are excessive, redundant, or otherwise unnecessary hours. Hensley v. Eckerhart, 461 U.S. 424, 431 (1983), In fact, the court “should exclude from its initial fee calculation hours that were not reasonably expended.” Hensley, 461 U.S. at 434, In addition, where the documentation is inadequate, the court may reduce the award. Computerxpress Inc. v. Jackson, 93 Cal.App. 4" 993, 1020 (2001). The person seeking the award “is not necessarily entitled to compensation for the vaiue of| attorney services according to [his] own notion or to the full extent claimed by [him]. Sclron Bay) a ‘PLAINTIFF EAGLE BROADBAND, ING.'S OPPOSITION TO DEFENDANT DOE 5°S (THOMAS MOULD) MOTION FOR REASONABLE ATTORNEYS’ FEES (C.CP, § 425.16(€))