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Thomas S. Carter, Esq. (State Bar No. 256876)
TFIE LAW OFFICES OF THOMAS S. CARTER
rtr
250 West First Street, Suite 340
2
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3
Claremont, California 917
Tel.:90
l+41-
9.296.3360
4
Fa"x 909.697.4444
5
Attorney for Plaintiff, TERRY S. LLOYI)
6

9 STJPERIOR COURT FOR THE STATE OF CALIFORNIA

l0 COTJNTY OF SAI\I BERNARDINO

ll
TERRY S. LLOYD, Case No.: CMS1506606
t2

I3 [Assigned for All Purposes to Hon.

Plaintitr, Judge Donna Gunnell Garza.Dept. S24]
l4
v. PLAINTIFF, TERRY S. LLOYD'S NOTICE
l5
OF MOTION AND MOTION FOR
l6 ATTORTIEY FEES; DECLARATION OF
SHAGUFTA S. KHAN, MIJNTAZ KHAN, THOMAS S. CARTER IN SI]PPORT OF
t7 DAI.IIEL SHAW KHAN, GASPAR MOTION FOR ATTORNEY FEES
BENJAMIN URIBE, DOES 1.100, inclusive, IPROPOSEDI ORDER GRANTTNG
l8
PLAINTIFX"S MOTION FOR ATTORNEY
l9 T'EES

Defendants. Ifihd Concurrently with Amended

20 Judgmentl
at
LI

22 Time: 8:308:
23 Trial Held: January 17,2018
24 TO ALL PARTIES ANID THEIR ATTORNEYS OF RECORD:
?{ PLEASE TAKE NOTICE that on April 17, 2018, at 8:30 a.m., or as soon thereafter as the

26 may be heard in Department 4 of the above-entitled court located at247 West Third Steet, San

27 Bemardino , CA 92415'0210, Plaintifl TERRY LLOYD, will move the court for an order awarding
28
PLAINTIFF, TERRY S. LLOYD'S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES;
DECLARATTON OFTHOMAS S. CARTER IN SUPPORTOF MOTION
 I attorfley fees in the total sum of of $59,867.50.

2 The motion is based on this notice, the Memorandun"r of Points and Authorities, the Declaration

J of Thomas S. Carter, the court file, and on any olher oral and documentary evidence that may be

4 presented at the tirne of hearing.

6 Dated: tvlarch$, zOt8 Respectfully submitted,

1 LAW OFFICES OF THOMAS S. CARTER
I
(,,
X/t,S''L*
THOMAS S. CARI'ER
t0 Attorney for Plaintifl TERRY S. LLOYD
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PLAINTIFF, TNRRY S. LLOYD'S NOTICB OF MOTION AND MOTION FOR ATTORNIY F[[S;
DECLARATION OF THOMAS S. CARTER IN SUPPORT OF MOTION
 MEMORANDUM OF POINTS AND AUTHOBITIES
I

2
I.

INTRODUCTION
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Defendants, SHAGUFTA KHAN (hereinafter "Shagufta"), MUNTAZ KHAN (hereinafter
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"Mumtaz") and GASPAR BENJAMIN URIBE (hereinafter *Gaspar") incorporated the company called
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Green Energy Solutions, Inc. in 2009. This company was to be a holding company for multiple
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businesses owned by Mumtaz and Gaspar. In late 2011, Plaintifl TERRY S. LLOYD, ("Plaintiff') now
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75 years old, was enticed by defendants Mumatz, and Gaspar to enter into an agreement to purchase a
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l/3 stake in trvo (2) businesses in San Bemardino known as Five N Fly Pirza. These businesses were
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owned by Green Energy Solutions, Inc. In 2012, Plaintiffpaid $30,000 for the Highland Avenue
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location and $24,000 for the Kendall Avenue location, and later paid an additional $26,000 toward both
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locations for a total investment of $80,000 for the 1/3 stake in the two restaurants. Plaintiffrelied on
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defendant's representations that the businesses were profitable and were good investments.
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After payment of approximately $300,000, plaintiffdiscovered that the businesses purchased
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were in fact losing, and contrary to defendants'representations, plaintiffderived zero income from all
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his alleged investments. Plaintiffthen filed the instant lawsuit for fiaud, breach of contrac! conversion,
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elder abuse and accounting.
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After a court trial on January 17,2018 before Hon. Judge Donna Gunnell Garza, the court
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rendered judgment in favor of plaintiffas follows: PlaintiffLloyd is awarded $l10,000 in damages for
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the fraud cause of action against defendant Mumtaz Khan and Gaspar Beqiamin Uribe, who are jointly
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and severally liable (Please state details ofjudgment here).
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Plaintiffthen files the instant motion for attomey fees as an element of plaintiffs costs and
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damages since defendants' conduct, required plaintiffto retain the services of counsel in seeking redress
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from the court.
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PLAINTIFF, TERRY S. LLOYD'S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES;
DECLARATION OFTHOMAS S. CARTER IN SUPPORTOF MOTION
 I

J Under Code of Civil Procedure section 1033.5, subdivision (aXl0), attomey fees, when

4 authorized by contract, statute, or law, are recoverable as an element of costs. The Legislanre has

5 further detailed the procedure by which attorney fees as costs may be fixed: upon a noticed motion.

6 (Code Civ. Proc., $ 1033.5, subd. (cX5); Cal. Rules of Court, rule 870.2.)

7 The Legislature enacted Code of Civil Procedure section 1033.5 and declared:

8 "The Legislature finds and declares that there is great uncertainty as to the procedure

9 to be followed in awarding attomey's fees where entitlement thereto is provided by

l0 conract to the prevailing party. It is the intent of the Legislature in enacting this act to

ll confirm that these attorney's fees are costs which are to be awarded only upon noticed

t2 motion, except where the parties stipulate otherwise or judgment is entered by default."

t3 (Stats. I 990, ch. 804, $ 2, p. 3552; see also Jue v. Patton (I 995) 33 Cal. App. 4th 456,

l4 46046r.)
l5 It is undeniable that plaintiffhad to retain counsel to file the instant action in order to seek
l6 damages resulting from defendants' fraudulent conduct.

t7 The Legislature has further detailed the procedure by which attorney fees as costs may be

l8 fixed:upon a noticed motion filed before or at the same time as the memorandum of costs (CCP $

l9 1033.5(c)(5): former Cal R of Court 870,2), Although prior to a 1990 amendment to CCP $ /03J.5,

20 there was uncertainty as to the procedure to be followed in awarding attomey fees under contract

2t provisions, it was the intent of the Legislature in enacting the amendment to confirm that these attorney
,,) fees are costs which are to be awarded gnly upon noticed motion, except where the parties stipulate

23 otherwise or judgment.is entered by default. Thus, the trial court was incorrect to require a prior

24 pleading of the existence of a contract provision. Allstate Ins. Co. v. Loo (Cal. App. lil Dist. July 2,

25 1996),46 Cal. App.4th 1794.

26 Plaintifftherefore submits his claim for attorney fees in the sum of $59,867.50 as costs in
7'7 bringrng this matter to trial.

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PLAINTIFF, TERRY S. LLOYD'S NOTTCE OF MOTION AND MOTTON FOR ATTORNEY FEES;
DECLARATION OF THOMAS S. CARTER IN SUPPORT OF MOTION
 I III
2 THE COURT HAS DISCRETION TO AWARD ATTORNEY FEES AS COSTS
3 Although as a general rule attorneys' fees incuned by a plaintiffin an actron tbr darnages for

4 fraud are nonrecoverable, Cal. Code Civ. Proc. $ 1021, an exception is recognized where a plaintiff, as

5 a proximate result of defendant's fraud, is required to prosecute or defend an action against a third

6 for the protection of his interest. In such cases reasorable attorneys' fees incurred in connection with

7 third party lawsuit are recoverable as damages caused by defendant's tortious act. A plaintiffin a fraud
8 action generally cannot recover attorney fees (Glendole Fed Sav. & Loan Assn. v. Marina View

9 Heights Dev. Co. (1977) 66 Cal. App. 3d 101, 119, except where, as a proximate result of defendanfs

l0 fraud, the plaintiffincurred attorney fees prosecuting or defending an action against a third pafiy to

ll protect his interest Gray v. Don Miller & Associates, Inc. (1984) (35 Cal.3d 498; an exception is

t2 recognized where a plaintiff, as a proximate result of defendant's fraud, is required to prosecute or

l3 defend an action against a third party for the protection of his interest. ( Prentice v. North Amer. Title

t4 Guor. Corp.,59 Cat.2d 618,620.) In such cases reasonable attorneys'fees incurred in connection with

l5 the third party lawsuit are recoverable as damages caused by defendant's tortious act. ( Prentice v. North

l6 Amer. Title Guar. Corp., supra; Roberts v. Ball, Hunt, Hart, Brown & Baerwitz,ST Cat.App.3d 104,

l7 112.)

l8 In this case, although plaintiffLloyd did not need to sue a third parry to recoup all his damages

t9 arising from defendant's conduct, defendants in this case continued to run the businesses at a loss using

20 plaintiffs name resulting in accumulated debts and property ta(es to plaintiffs detriment. Plaintiffs
2l credit has been adversely affected and plaintiffmay still need to sue third parties in order to clear his

22 name and restore his credit.

23 Civil Code Section 3333 also provides,

24 " For the breach of an obligation not arising from contract, the measure of damages,

25 except where otherwise expressly provided by this code, is the amount which will
26 compensate for all the detiment proximately caused thereby, whether it could have

27 been anticipated or not."

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PLAINTIFF, TERRY S. LLOYD'S NOTICE OF MOTION AND MOTION FOR ATTORNEY FEES;
DECLARATION OFTHOMASS. CARTER IN SUPPORT OF MOTION
 I Plaintilf s detriment definitely includes attomey fees expended in bringing this case to trial.
2 In awarding attorney fees to delbndants as prevailing parties pursuant to CCP b t 7 17, and CCP $
J 1433"5(a)(1A){a).the fial court did not abuse its discretion in accepting del'er:se counsel's computation

4 of aflorney hours as hours reasonably spent working on the case. The attoneys primarily involved in the
5 litigation provided deelalations *nder penalty of perjury in support of the hours sought, which were

6 broken down by hours expended in each category of Page 31 of 63

7 Cal Code Civ Froc $ 1033.5 services rendered. Syers Properties fll, Inc. v. Rankitr {Cat. App. /sl Drsr.
I May 5, 2014), 226 CaL App. 4th 691 .

I As stated in the Deciaration of ThonTas S. Carter, plaintills counsel has expended a total of
t0 217 "7 hours at $275.00 per hour in discovery. trial preparation and actual trial resulting in a verdiet gf
il $l10,000.00 against defsndants, Mumtaz Khan and Gaspar Benjamin Urihe. These attorney hours were
t2 reasonable and necessary in this type of litigation"

t3

t4 CONCLUSION
t5 For the foregoing reasons? plaintiffrequests the Court to award the sum of $59,867.50

l6 fees as costs in this action.

t7 Dated: tvlarchSz0 t8 Respectfully submitted,

l8 LAW OFFICES OF TI-IOMAS S. CARTER
t9

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THOMAS S. CARTER
2t Attorney tor Plaintitf, TERRY S. LLOYD
72

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)a.

?s

2$

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PLAINTIFT, TERRY S. LLOYD'S NOTICE OT MOTION AND MOTTON FOR ATTORNEY
DECLARATION OF THOMAS S. CARTER IN SUPPOA,T OF MOTION
 I
,IIECLARATION OT THOMAS S. CARTER

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I, Thomas S. Carter. hereby declare as fbllows:
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1. I am an attorney duly licensed to practice law in the state of California. I am counsel
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record for Plaintiff, Terry S. Lloyd in the above-refereneed action. If called as a witness, I would
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could competently testi$, to the facts of this matter.
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This declaration is submitted in suppofi of plaintiff s motion for an award of a,tomey fees as
a

I 2. The original complaint was filed on May 7,2A15. I have been plaintiff s counsel of
I record from the initiation of the case until canclusion.
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3. I have expended a total af ?17.? hours in discovery, trial preparation, trial. and post-trial.
il These hcurs were reasonable and n{:cessary in providing competent represenl,ation to plainti{f, Terry S.
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tloyd.
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4. In my opinion, plaintiff would have been unable to recol,er any dan:ages fiom
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defendants, KHAN and URIBE. had this case not been filed in court. Mr. Lloyd is 73 years old. He is
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couliting on his past earnings to sustain him fbr the rest of his life" He has limited income now.
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Thereforc, he can only be made whole by allowing hirn to recover his attorney fees as costs in this
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action.
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I dsclare under penalty of perjury under the laws ol'the State of California that the foregoing i
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true and comect
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Executed this 6 day of March, 2018 at Claremont, Califo
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22 Thomas S. Carter, Declarant

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PLAINTIFF, TERRY S. LLOYD'S NOTICf, OF MOTION,4ND MOTION F'OR ATTORNEY
T}f,CLARATION OF THOMAS S. CAR.TER IN SUPPORT OF MOTION
 Thomas S. Carter, Esq. (State Bar No. 256876)
I
TI{E LAW OFFICES OF TI{OMAS S. CARTER
) 250 West First Street, Suite 340
Claremont, California 917 ll
3 Tel.: 909.296.3360
Fa.x: 909.697.4444
4

5 Attorney for Plaintiff, TERRY S. LLOYD

7 8,,

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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9
COI]NTY OF SAIY BERNARDINO
l0

ll TERRY S. LLOYD, Case No.: CMS1506606

t2
[Assigned for All Purposes to Hon.
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Plaintifl Judge Donna Cunnell Garz4 Dept. S24l

t4 v. IPROPOSEDI ORDER GRANTTNG

PLAINTIFF, TERRY S. LLOYD'S
l5 MOTION FOR ATTORNEY FEES
l6 SHAGUFTA S. KHAN, MUNTAZ KHAN,
DANIEL SHAW KHAN, GASPAR Date: April l7,20l8
t7 BENJAMIN URIBE, DOES l-100, inclusive, Time: 8:30 a.m.
Dept. S24
l8 Trial Held: January l7r20l8
l9 Defendants. Complaint Filed: May 7,2015
20

2l
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The motion of Plaintiff, TERRY S.LLOYD, ("Plaintiff') for an order awarding attomey fees i

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the amount of $59,867.50 came on regularly for hearing on April 17,2A18, before Deparmrent S24 of

25 above-entitled Court. Oral and documentary evidence having been presented, the matter having

26 argued and submitted, and good cause appearing for compelling response, IT IS ORDERED THAT:

27

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IPROPOSEDI ORDER GRANTTNG PLAINTIFF, TERRY S. LLOYD'S MOTION FORATTORNEY FEES

 PROOF OF SERVICE
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2 STATE OF CALIFORMA
Case Number: CIVDS 1506606
3
COI.JNTY OF SA}I BERNARDINO
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I am employed in the County of Los Angeles, State of galifomil_! q1 gvelthe agg gf lSyears, and
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not a paity io the above-nanied action. My business address is: 250 W. lst Street, Suite 340,
6
Claremont, CA 91711.

7
On March 7,2018,I caused the following document to be served:

8 PLAINTIFF, TERRY LLOYD'S NOTICE OF MOTION AND MOTION FOR

lmonnnv FEES ; DECLARATION OF TIIOMAS S. CARTER IN SUPPORT OF
9 nnotlolr FoR ATTORNEY FEES; [PROPOSEDI ORDER; AMENDED JUDGMENT
l0 on the interested parties by placing a tue copies-of the-document(s) listed above, enclosed in a sealed
envelope(s) with postage fully prepaid addressed as follows:
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Attomey for Defendants: Shugufta Khan, Mumtaz l(han, Daniel Shaw Khan,
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Gaspar Benjamin Uribe
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Gary Redinger, Esq.
l4 LAW OFFICES OF GARY REDINGER
349 N. Sierra Way
l5 San Bernardino, CA 92410
Tel: (951) 316-5034
l6 Email: redlawx3 @ qmail. com

17 l-Xl By Mail: I am "readily familiar" withthis business's practice fo: collecting-and.processing...

r'ori.rpo-td"n"J for mailing. bn the same day that.c-oqespgnler.rc_e is placed fot collection and mailing,
IE it iJ aelositea in the ordiniry cou1sg of business with the United States Postal Service in a sealed
envelope with postage fully prepaid.
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t] By E-Mail or Electronic Transmission: Based on a c-ourt order or a1?qeeqe+t of theparties
20 tb icceptiervice by e-mail or elecfionic tansmissioa, I caused the_document(s) listed above to'be
tranimftteA to the ierson(s) at the e-mail address(es) as indicated. I did not receive, within a reasonable
2l time after ttre tranimission, any elecftonic messale or other indication that the transmission was
)1 incomplete or unsuccessful.

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I declare gnder the penalty of perjury under the laws of the State of California that the foregoing
is tnre and correct.
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Executed on March 7,2018 at Claremont, California.
25

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PLAINTIFF, TERRY S. LLOYD'S NOTICE OF MOTION AND MOTTON FOR AITORNEY FEES;
DECLARATION OF THOMAS S. CARTER IN SUPPORT OF MOTION
 JUD.IOO
ATTORNEY OR PARTY I/UTHOLIr ATTORT{g( Nsrts, clab bsr nunlf,r sN ,dt?€s): Rncowr,lsEoril.Y
Thomas S. Carter, Esq. (SBN 256876)
-250 W. lst Street, Suite 340
Claremont" CA 9171I
-'--";;;;"**o, gOg.Zq0.g$O FN(No. (opniMaui 909,697.4444
E.rrAtL ADDnEss (opdc,s,ri tom@;tscarterlaw.com
PLA-INTIFF Terry Lloyd
ArroRNEy FoR {,vr",€r'
supenton couRT oF clu-roRm,cguNTY oF San Bernardino
sf,REEirADoREss' 247 W.3rd Street
MAIuNGADDRESS: same as above
oryANDapcoDE San Bernardino 92415
BRANcHMME: San Bemardino Justice Center
PI.AINTIFF: -Terry S. LloYd
Mrrmtaz Khan: Shazufta S. Khan: (see atch for full list)
CASE NUMBER:
JUDGMENT
E
l-l
Ey clex
ey court
E
E
By llefault
On Stipulation
@
E
After Court Trlal
Ilsfendant Dld Not
crvDsls06606

Appear at Trial

AMENDEDJUDGiiENT

1. E BYDEFAULT
a. Detsndant was properly served with a copy of the summons and complaint by law'
b. De6ndant faiteO toansr,,rer me complaint or appear and dehnd the action within lhe time allowed
a Defundants defaultwas entered by the clerk upon plaintiffs application'
of a court of
d. clerk's Judgment (code civ. Proc., $ 585(a)). Defendant was sued only on a @ntrac{ or iudgment
l-l
this state br lhe recovery of moneY'
e. ft court Judgment (code civ. Proc., s 585(b)). The court considered
(1) E
plaintffis testimony and otherevidence'
(2) phintiffs written dedaration (Gode Civ' Proc', $ 585(d))'
-
2. l-1 oN srlPULATloN
a. plaintifi and defendant agreed (stipulated) that a judgment be entered in this case. The court approved the stipulated
judgment and
b. EJ the signed written stipulation was filed in the case'
.. E the stipulation was stated in open court El tne stipulation vras stated on he record.

3. f71 AFTERGOURTTRIAL Thejurywaswaived. Thecourtconsidered theevidence.

a. The case was tried on (date and time): January I 7, 201 I at I 0:00 a.m.
&toe (name of iudiciat afrcer):Honorable Judge Donna Gunnell Garza
b. Appearances by:

@Paafifift (name each): [l Rtaintns attomey (name each):

(1)Terry S. LloYd ltl Thomas S. Carter, Esq.

(2) (2t

! Continued on Attachment 3b.

E oeenoanl(name each): @ Debndant's attomey (name each):

(1)Mumtaz Khan (1) Gary Redinger, Esq.

(2)
lzl Shagufta Khan
@ Continued on Attachment 3b'

c. E OEenOant did not appear at triat. Dehndant was properly served with notice of trial.

d. E A stat€ment of decision (Gode Giv. Proc, $ 632) E was not E was requested.

-mffitroptorra|use JUDGMENT co<rgcrcMtPmcadu€.S958s.664.6

JudkiEl Courcil ot Cafituttlis
JUtltO lNgtr Jar{rerY 1, zml