Ventura Superior Court Case No CIV214486

1. SERVICE LIST
CASE NO. Bl78942
(Ventura Superior Court Case No. QV214486)
PROO1-’ Ob' SERVICE
David B. Chatfield, Esq.
Westlake Law Group
2625 Townsgate Road, Ste 330
Westlake Village, CA 91361
(805) 267-1220
(805) 267-1211 - Fax
Ventura County Superior Court
Ventura Hall ofJustice
800 South Victoria Avenue
Ventura, California, 93009
(805) 654-2965
Peter J. Bezek, Esq.
Foley & Bezek, LLP
15 West Carrillo Street
Santa Barbara, CA 93101
(805) 962-9495
(805) 962-0722-Fax
James D. Gustafson, Esq.
Law Offices ofJames D. Gustafson
2625 Townsgate Road, Ste 330
Westlake Village, CA 91361
(805) 267-1220
(805) 267-1211 - Fax
James D. Gustafson, Esq.
Law Offices ofJames D. Gustafson
2160 Waterside Circle
Westlake Village, CA 91362
(805) 241-4217
(805) 241-3445 - Fax
Attorneys for Plaintiffs and
Respondents
Sulphur Mountain Land and
Livestock Co., Malibu
Broadbeach L.P., and Pacific
Coast Management
Attorneys for Plaintiffs and
Respondents
Sulphur Mountain Land and
Livestock Co., Malibu
Broadbeach L.P., and Pacific
Coast Management
Attorneys for Plaintiffs and
Respondents
Sulphur Mountain Land and
Livestock Co., Malibu
Broadbeach L.P., and Pacific
Coast Management
SULPHUR MOUNTAIN, ET AL. V. KNAPP, PETERSEN & CLARKE,
ET AL.

2. PROOF Ob' SERVICE
Supreme Court ofCalifornia
350 McAllister Street
San Francisco, CA 94102-4783
Office ofthe Clerk: (415) 865-7000

3. TABLE OF CONTENTS
PAGE
1
STATEMENT OF THE CASE
1
1. NATURE OF ACTION AND RELIEF SOUGHT
3
2. SUMMARY OF MATERIAL FACTS
5
6
ARGUMENT.
1.-
6
A.
6
B.
9
C.
12
2.
20
3.
i
THE COURT ERRED IN AWARDING PLAINTIFFS ALL
ATTORNEY’S FEES INCURRED AFTER FEBRUARY 11, 2004
The Court Abused Its Discretion By Failing To Exercise Its Discretion
Under Civil Code §1717 To Determine Which Party Prevailed On The
Contract Claims.....................................................................................
THE COURT ERRED IN AWARDING SULPHUR AND MALIBU
ATTORNEY’S FEES INCURRED ON BEHALF OF PLAINTIFF
PACIFIC COAST MANAGEMENT..................................................
Even IfThe Trial Court Did Exercise Its Discretion Under Civil Code
§1717, It Abused That Discretion In Determining That Plaintiffs Were
The Prevailing Parties...........................................................................
THE COURT ERRED IN AWARDING PLAINTIFFS THEIR EXPERT
WITNESS FEES.....................................................................................22
The Court Erred In Ruling That KPC Is Not The Prevailing Party For
Purposes OfRecovering Its Attorney’s Fees Incurred After February
11,2004..............................................................................................
i. The Court Erred In Ruling That Defendants’ C.C.P. §998 Offers Were
Invalid Because They Called For A Confidentiality Provision...............13
3. RULING OF SUPERIOR COURT AND STATEMENT OF
APPEALABILITY ....................
ii. The Court Erred To The Extent It Based Its Ruling On A BeliefThat
The General Release And Settlement Provision In Defendants’ C.C.P.
§998 Offers Renders Them Invalid......................................................... 18

4. TABLE OF CONTENTS
PAGE
4.
23
5. CONCLUSION. .23
BRIEF FORMAT CERTIFICATE PURSUANT TO C.R.C. 14(C) 24
ii
THE COURT ERRED IN AWARDING PLAINTIFFS THEIR COSTS
FOR MODELS, BLOWUPS AND PHOTOCOPIES OF
EXHIBITS

5. TABLE OF AUTHORITIES
Page
8, 13,14
22
6
13, 17
21
7
18,19
10
8, 9, 10
10
iii
153585 (TOC/TOA Io 153577)
In Re McGaw Property Management, Inc. (Bkrtcy. C.D. Cal. 1991)
133 B.R. 227
Cases
American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002)
96 Cal.App.4th 1017 14,15
Barella v. Exchange Bank (2000)
84 Cal. App. 4th 793
Carver v. Chevron U.S.A., Inc. (2002)
97 Cal.App.4th 132
Citizens Against Rent Control v. City ofBerkeley (1986)
181 Cal. App. 3d 213 .....................................
Elite Show Services, Inc. v. Staffpro, Inc. (2004)
119 Cal. App. 4th 263
Fennessy v. Deleuw-Cather Corp. (1990)
218 Cal.App.3d 1192
Fletcher v. Superior Court (2002)
100 Cal.App.4th 386
Goodstein v. Bank ofSan Pedro (1994)
27 Cal.App.4th 899
Heather Farms Homeowners HOA v. Robinson (1994)
21 Cal.App.4th 1568
Hsu v. Abbara (1995)
9 Cal.4th 863

6. TABLE OF AUTHORITIES
7
20
7
20
16
17
20
Statutes
22
iv
X
153585 (TOC/TOA to 153577)
Civil Code §1033.5(a)(12)
Civil Code § 1033.5(b)(1)..
Civil Code §1717
Civil Code § 1717(a)
Civil Code § 1717(b)(1)...
C.C.P. §998
McLarand, Vasquez & Partners, Inc. v.
Downey Savings & Loan Assn. (1991)
231 CaI.App.3d 1450
PLCM Group v. Drexler (2000)
22 Cal.4th 1084
Richards, Watson & Gershon v. 7Cmg(1995)
39 Cal.App.4th 1176
Scott Co. ofCalifornia v. Blount, Inc. (1999)
20 Cal.4th 1103 8,9,10,12,19
Sessions Payroll Management, Inc. v. Noble Construction Co. (2000)
84 Cal.App.4th 671
Valentino v. Elliott Sav-On Gas, Inc. (1988)
201 CaI.App.3d 692
Vick v. DaCorsi (2003)
110 Cal.App.4th 206
Whiteside v. Tenet Healthcare Corp. (2002)
101 Cal. App. 4th 693
passim
,...8, 20
.....7, 8
passim

7. TABLE OF AUTHORITIES
Page
16
17
C.C.P. §998(c)(l) 12,19
California Rules of Court
225 17
Other Authorities
15,16
v
153585 (TOC/TOA to 153577)
C.C.P. §998(b)....
C.C.P. §998(b)(l)
Rutter, Cal. Practice Guide: Civ. Pro. Before Trial CH. 12(II)-C,
C. Statutory Offer To Compromise (CCP § 998) §12:662,
p. 12(II)-34 (2004)

8. Case No. B178942
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT, DIVISION SIX
vs.
APPELLANTS’ OPENING BRIEF
Appeal from the Superior Court ofCalifornia, County ofVentura
Ventura Superior Court Case No. Civ 214486
Honorable Henry J. Walsh, Dept. 34
KNAPP, PETERSEN AND CLARKE; STEVEN RAY GARCIA;
STEPHEN M. HARRIS; and ANDRE JARDINI,
Defendants and Appellants.
SULPHUR MOUNTAIN LAND AND LIVESTOCK CO., a California
Limited Liability Company; MALIBU BROADBEACH L.P., a California
Limited Partnership; and PACIFIC COAST MANAGEMENT,
a corporation,
Plaintiffs and Respondents,

9. STATEMENT OF THE CASE
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153577
Sulphur and Malibu obtainedjudgments against Defendants,
including KPC, for $3000 and $100 respectively when Defendants
accepted their C.C.P. §998 offers to compromise in those sums.
Sulphur and Malibu then filed a motion for attorney’s fees and a
Memorandum of Costs on the ground that they were the prevailing
parties. KPC also filed a motion for attorneys fees and Memorandum of
Costs on the grounds that: 1) Plaintiffs are not the prevailing parties as
they obtained minimal reliefon the contract claims compared to their
demands and litigation objectives; and 2) KPC is the prevailing party
for purposes of recovering its attorney’s fees and costs incurred after
February 11, 2004, the date ofDefendants’ C.C.P. §998 offers, as
Plaintiffs each recovered less than Defendants’ C.C.P. §998 offers.
1. NATURE OF ACTION AND RELIEF SOUGHT
In this legal malpractice action, plaintiffs Sulphur Mountain
Land and Livestock Co. (“Sulphur”), Malibu Broadbeach L.P.
(“Malibu”) and Pacific Coast Management (“PCM”) asserted causes of
action for professional negligence, breach ofcontract, breach ofthe
covenant ofgood faith and fair dealing, breach offiduciary duty and
constructive fraud against defendants Knapp, Petersen & Clarke
(“KPC”), Steven Ray Garcia, Stephen M. Harris and Andre Jardini
(collectively “Defendants”).
This appeal is from the following post-judgment orders: 1)
the order granting Sulphur and Malibu’s (collectively “Plaintiffs”)
motion for attorney’s fees; 2) the order denying defendant KPC’s
motion for attorney’s fees; 3) the order denying Defendants’ motion to
tax Plaintiffs’ costs; and 4) the order granting Plaintiffs’ motion to tax
KPC’s costs.

10. Defendants also filed a motion to tax Plaintiffs’ costs on the
2
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grounds that: 1) KPC, not Plaintiffs, is the prevailing party; 2) there is
no authority pursuant to which Sulphur or Malibu could recover their
expert witness fees; and 3) there is no authority pursuant to which
Sulphur or Malibu could recover their costs for models, blowups or
photocopies ofexhibits as this case did not go to trial. Plaintiffs also
filed a motion to tax Defendants’ costs on the grounds that Sulphur and
Malibu are the prevailing parties.
Although Sulphur and Malibu sought $299,781.96 in fees, the
trial court concluded that the fees they reasonably incurred were
$111,515. The court also awarded Sulphur and Malibu all ofthe costs
that they sought in their Memorandum ofCosts. The court denied
KPC’s motion for attorney’s fees and Defendants’ motion to tax
Plaintiffs’ costs. The court’s basis for granting Plaintiffs’ motions and
denying Defendants’ motions was that Sulphur and Malibu are the
prevailing parties, and therefore entitled to their costs, including
reasonable attorney’s fees, because Defendants’ C.C.P. §998 offers to
them were invalid as they contained a confidentiality provision.
This was error. Preliminarily, the trial court abused its
discretion by failing to exercise its discretion pursuant to Civil Code
§1717 to determine the prevailing party. The trial court skipped this
threshold analysis under Civil Code §1717 and, instead, improperly
based its prevailing party determination on factors used to determine
whether to shift costs pursuant to C.C.P. §998 to a party who has
already been determined to be a “prevailing party” under Civil Code
§1717. Further, even ifthe trial court did exercise its discretion under
Civil Code §1717, it abused that discretion in determining Sulphur and
Malibu were the prevailing parties as the underlying facts reveal that
KPC was clearly the prevailing party.

11. 3
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The trial court also erred in determining that Defendants’
C.C.P. §998 offers were invalid because they contained a confidentiality
provision. A confidentiality provision has been held to render a C.C.P.
§998 offer invalid for cost-shifting purposes only in the narrow
circumstance ofa defamation action where a “secret” settlement is
contemplated. As this is a legal malpractice action that does not involve
a “secret” settlement, the routine confidentiality provision at issue does
not render Defendants’ C.C.P. §998 offers invalid. Thus, KPC, rather
than Plaintiffs, is the prevailing party for purposes ofrecovering its
post-offer costs.
Moreover, even if Sulphur and Malibu were prevailing parties, the
trial court erred in awarding them fees incurred on behalfofa non-prevailing
party, PCM. Additionally, even ifPlaintiffs were the prevailing parties, there
is no authority to support the trial court’s award ofcosts for their expert
witness fees or models, blowups or photocopies ofexhibits. Therefore, this
court should reverse the trial court’s orders denying Defendants’ motion for
attorney’s fees and motion to tax costs and granting Plaintiffs’ motion for
attorney’s fees and motion to tax costs.
2. SUMMARY OF MATERIAL FACTS
On February 11,2004, Defendants made statutory offers to
compromise to Sulphur and Malibu pursuant to C.C.P. §998 for $18,500
and $7500, respectively. (AA 231-237.) These offers contained a
confidentiality provision and also called for a general release of
Defendants. (AA 231-232,235-236.) Sulphur and Malibu did not accept
these offers. (AA215.)
On May 21, 2004, Sulphur and Malibu made statutory offers to
compromise to Defendants for $3000 and $100 respectively. (AA 21, 24.)
As these offers were for sums considerably less than Defendants had
previously offered to settle this action, Defendants accepted Sulphur and

12. 4
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Malibu’s offers. (AA 20-25.) Sulphur and Malibu subsequently obtained
judgments against Defendants for $3000 and $100 respectively - the
amount of Sulphur and Malibu’s offers to compromise. (AA 33, 506-509.)
Plaintiffs then filed a Memorandum ofCosts to recover costs
they incurred throughout the entire action, including costs incurred after
Defendants’ February 11, 2004 C.C.P. §998 offers, expert witness fees and
costs for models, blowups and photocopies ofexhibits. (AA 34-38.)
Sulphur and Malibu also filed a motion for attorney’s fees on the basis that
they were the prevailing parties because they obtained a net monetary
recovery and were therefore entitled to attorney’s fees pursuant to Civil
Code §1717 and the contract between plaintiffs and defendant KPC. (AA
39-194.)
KPC filed a motion for attorneys fees and Memorandum ofCosts
on the grounds that: 1) Plaintiffs are not the prevailing parties as they
obtained minimal reliefon the contract claims compared to their demands
and litigation objectives; and 2) KPC is the prevailing party for purposes of
recovering its attorney’s fees and costs incurred after February 11, 2004,
the date ofDefendants’ C.C.P. §998 offers, as Plaintiffs each recovered less
than Defendants’ C.C.P. §998 offers. 1 (AA 34-38,401-478.)
Plaintiffs filed a motion to tax ail ofKPC’s claimed costs on the
grounds that Sulphur and Malibu are the prevailing parties. (AA 479-505.)
Similarly, Defendants filed a motion to tax costs on the grounds that: 1)
KPC is the prevailing party for purposes ofrecovering its post-offer costs;
and 2) there is no authority pursuant to which Plaintiffs could recover costs
for expert witnesses or costs for models, blowups and photocopies of
exhibits. (AA 379-400.)
As KPC was the only defendant who was a party to the Legal
Services Agreement in the underlying action, only KPC is the prevailing
party on the contract entitled to recover its fees and costs. (AA 15-18.)

13. APPEALABILITY
5
153577
The Superior Court ofCalifornia, County ofVentura, by the
Honorable Henry J. Walsh, denied Defendant KJPC’s motion to determine
prevailing party and to fix amount of attorney’s fees as costs in its entirety
and denied Defendants’ motion to tax Plaintiffs’ costs in its entirety. (AA
750-754.) The order denying these motions was entered on September 2,
2004. (AA 750-754.)
The Superior Court of California, County ofVentura, by the
Honorable Henry J. Walsh, granted Plaintiffs’ motion to tax costs in its
The trial court heard Plaintiffs’ motion for attorney’s fees and
motion to tax costs and Defendants’ motion for attorney’s fees and
motion to tax costs on August 31, 2004. (RT 1.) On September 2,
2004, the court issued its written order granting Plaintiffs’ motion to tax
costs and denying Defendants’ motion for attorney’s fees and motion to
tax costs. (AA 750-754.) On September 28, 2004, the court issued its
written order granting Plaintiffs’ motion for attorney’s fees and
awarding Sulphur and Malibu $111,515 ofthe $299,781.96 in fees they
sought. (AA 755-756.)
The court based it rulings on the ground that plaintiffs were
the prevailing parties entitled to their costs, including reasonable
attorney’s fees, because Defendants’ C.C.P. §998 offers were invalid as
they contained a confidentiality provision. (AA 750-756.) The court’s
September 2,2004 order also stated that Defendants’ offers were
“subject to criticism” for requiring a “release and settlement agreement,
the full terms ofwhich are not stated, but which is stated to extend to
persons not specifically named as parties to the litigation.” (AA 753.)
On October 29,2004, Defendants timely filed their Notice ofAppeal as
to each ofthe court’s four rulings. (AA 757-761.)
3. RULING OF SUPERIOR COURT AND STATEMENT OF

14. ARGUMENT
1. THE COURT ERRED IN AWARDING PLAINTIFFS ALL
6
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entirety and did not award KPC any ofthe costs it sought in its
Memorandum ofCosts. (AA 750-754.) The order granting the motion was
entered on September 2, 2004. (AA 750-754.)
The Superior Court of California, County ofVentura, by the
Honorable Henry J. Walsh, granted Sulphur and Malibu’s motion for
attorney’s fees and awarded Sulphur and Malibu attorney’s fees in the
amount of $111,515. (AA 755-756.) The order granting the motion was
entered on September 28, 2004. (AA 755-756.)
Notice ofAppeal from each ofthe above orders was timely filed
and served on October 29,2004. (AA 757-761.) A post-judgment order
awarding or denying attorney’s fees or costs is appealable. Citizens Against
Rent Control v. City ofBerkeley (1986) 181 Cal. App. 3d 213, 223.
ATTORNEY’S FEES INCURRED AFTER FEBRUARY 11,2004
A. The Court Abused Its Discretion By Failing To Exercise Its
Discretion Under Civil Code §1717 To Determine Which Party
Prevailed On The Contract Claims
The Legal Services Agreement between Plaintiffs and KPC in the
underlying action provides that “the prevailing party in any action or
arbitration to enforce the terms ofthis agreement shall be entitled to recover
reasonable attorneys fees and all costs in any such action.” (AA 18.) Civil
Code §1717 confers discretion upon the trial court to determine which, if
any, ofthe parties is the “prevailing party” on the contract thereby entitling
that party to recover its costs, including attorney’s fees, incurred in the
action. “The court, upon notice and motion by a party, shall determine who
is the party prevailing on the contract for purposes ofthis section... The

15. 7
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compelled by law constitutes a denial ofa fair hearing
and a deprivation offundamental procedural rights,
and thus requires reversal. [Citations.]’
Fletcher v. Superior Court (2002) 100 CaI.App.4th 386, 392 (citations
omitted.) Thus, a “trial court’s failure to exercise its discretion [is] itselfan
abuse ofdiscretion.” Richards, Watson & Gershon v. King (1995) 39
Cal.App.4th 1176, 1180.
In the present action, the trial court abused its discretion because
it failed to exercise its discretion under Civil Code §1717 in determining
which parties prevailed. Instead, it improperly applied the cost-shifting
analysis ofC.C.P. §998 to make its prevailing party determination. The
court appears to have confused the “prevailing party” analysis under Civil
Code §1717 and the analysis employed under C.C.P. §998 to determine
whether a plaintiffwho did not accept a defendant’s C.C.P. §998 offer
obtained ajudgment more favorable than the defendant’s offer thereby
avoiding the cost-shifting provisions ofC.C.P. §998.
In determining the attorney’s fees and costs, ifany, to which a
party is entitled pursuant to a contract, the first analysis in which the trial
court may also determine that there is no party prevailing on the contract
for purposes ofthis section.” Civil Code § 1717(b)(1).
A trial court’s determination as to whether a party prevailed on
the contract claims pursuant to Civil Code §1717 is reviewed for an abuse
ofdiscretion. McLarand, Vasquez & Partners, Inc. v. Downey Savings &
Loan Assn. (1991) 231 Cal.App.3d 1450,1456. Further,
‘[a] ruling otherwise within the trial court's power will
nonetheless be set aside where it appears from the
record that in issuing the ruling the court failed to
exercise the discretion vested in it by law. [Citations.]’
‘Failure to exercise a discretion conferred and

16. 8
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court must engage is to determine which parties, ifany, are the “prevailing
parties” under Civil Code § 1717(b)(1) by “compar[ing] the reliefawarded
on the contract claim or claims with the parties’ demands on those same
claims and their litigation objectives as disclosed by the pleadings, trial
briefs, opening statements, and similar sources.” Hsu v. Abbara (1995) 9
Cal.4th 863, 876; also see Scott Co. ofCalifornia v. Blount, Inc. (1999) 20
Cal.4lh 1103, 1109. After the court determines which party, ifany, is the
prevailing party, that party shall then be entitled to costs, including
attorney’s fees. Civil Code §1717(a).
Where a prevailing party failed to accept a C.C.P. §998 offer to
compromise, the second analysis in which the trial court must engage to
determine the amount ofcosts to which the prevailing party is entitled is to
establish whether the cost-shifting provisions ofC.C.P. §998 apply by
determining whether the prevailing party obtained ajudgment more
favorable than the C.C.P. §998 offer. C.C.P. §998 (c)(1); see generally
Scott Co. ofCalifornia v. Blount, Inc, supra, at 1109-1110, 1112-1113.
Part ofthis analysis is evaluating whether the C.C.P. §998 offer at issue is
valid. Barella v. Exchange Bank (2000) 84 Cal. App. 4lh 793, 801.
In the present case, the trial court’s September 2, 2004 and
September 28, 2004 orders on the parties’ motions for attorney’s fees are
based upon the court’s determination that Sulphur and Malibu are the
prevailing parties because Defendants’ C.C.P. §998 offers to compromise
to Sulphur and Malibu were defective as they contained a provision that
called for confidentiality ofthe terms ofthe contemplated settlement
agreement. (AA 750-756.) The court reasoned that such a confidentiality
provision was not capable ofvaluation so as to enable Plaintiffs (or the
court) to determine the dollar value ofDefendants’ C.C.P. §998 offers and,
thus, whether Plaintiffs obtainedjudgments more favorable than
Defendants’ offers. (AA 752-753.) Significantly, the trial court did not

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address Civil Code §1717 either in its September 2,2004 order, September
28, 2004 order or at the hearing on Plaintiffs’ motion for attorney’s fees.
(AA 750-756; RT 1-18.) In fact, when Defendants’ counsel attempted to
raise the issue ofthe threshold Civil Code §1717 analysis at the August 31,
2004 consolidated hearing, the court specifically refused to hear any such
argument regarding the prevailing party analysis. (RT 17:23-27.)
The court’s September 2, 2004 and September 28, 2004 rulings
were an abuse ofdiscretion as the court failed to exercise its discretion and
to perform the threshold analysis ofdetermining which party is the
prevailing party pursuant to Civil Code §1717, i.e., by “[comparing] the
extent to which each party ha[s] succeeded and failed to succeed in its
contentions.” Hsu v. Abbara (1995) 9 Cal.4th 863, 876 (citations omitted.)
Instead, the trial court improperly based its prevailing party determination
on factors used to determine whether to shift costs pursuant to C.C.P. §998
to a party who has already been determined to be a “prevailing party” under
Civil Code §1717, e.g., whether Defendants’ C.C.P. §998 offers were valid
and, ultimately, whether Plaintiffs recovered an amount greater than
Defendants’ offers. (AA 750-756.) Such factors are irrelevant to the
threshold prevailing party analysis ofCivil Code §1717. The trial court
should only have analyzed whether Sulphur and Malibu obtained
judgments greater than Defendants’ C.C.P. §998 offers after, and if, it
determined that Sulphur and Malibu were the prevailing parties under Civil
Code §1717. See, e.g., Hsu, supra, at 876; also see Scott Co. ofCalifornia,
supra, at 1109.
B. Even IfThe Trial Court Did Exercise Its Discretion Under Civil
Code §1717, It Abused That Discretion In Determining That
Plaintiffs Were The Prevailing Parties
Even if this Court finds that the trial court did exercise its
discretion under Civil Code § 1717, the trial court abused its discretion in

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determining that Plaintiffs were the prevailing parties on the contract claims
as the facts ofthis case reveal that KPC was the prevailing party. The
California Supreme Court has made it clear that simply obtaining a net
monetary recovery does not necessarily establish a party as the “prevailing
party.” Rather, it held in Hsu v. Abbara (1995) 9 Cal.4th 863 that:
... in deciding whether there is a "party prevailing on
the contract," the trial court is to compare the relief
awarded on the contract claim or claims with the
parties' demands on those same claims and their
litigation objectives as disclosed by the pleadings, trial
briefs, opening statements, and similar sources. The
prevailing party determination is to be made only upon
final resolution ofthe contract claims and only by "a
comparison ofthe extent to which each party ha[s]
succeeded and failed to succeed in its contentions."
Id. at 876 (citation omitted.) See also Scott Co. ofCalifornia v. Blount, Inc.
(1999) 20 Cal.4th 1103, 1109; Heather Farms Homeowners HOA v.
Robinson (1994) 21 Cal.App.4,h 1568, 1574 (the court must engage in a
‘“pragmatic inquiry’ into whether a party is the ‘prevailing party’ on a
‘practical level’”); In Re McGaw Property Management, Inc. (Bkrtcy. C.D.
Cal. 1991) 133 B.R. 227,231 (debtor was prevailing party entitled to
attorney fees under Civil Code §1717 where creditor recovered only
$2,061.90 ofthe $25,000 it sought.)
In the present action, Sulphur and Malibu’s ultimate recoveries
of$3000 and $100 respectively were clearly de minimis and essentially
complete capitulations in light oftheir previous demands and litigation
objectives. For example, at the February 5, 2004 Mandatory Settlement
Conference (“MSC”) in this action, Sulphur and Malibu alleged damages of
approximately $135,000 against Defendants. (AA 227, 252.) At the MSC,

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they also unreasonably demanded that Defendants actually stipulate that
any settlement would be admissible in evidence at the trial oftwo unrelated
actions that Sulphur and Malibu’s principal, Stephen Gaggero, filed in the
Los Angeles Superior Court against KPC. (AA 227.) This stipulation was
so important to them that they flatly refused to settle the case without it.
(AA 227.) Not surprisingly, the MSC judge abruptly terminated the MSC
given what he viewed as the unreasonableness ofthis condition. (AA 227.)
Sulphur and Malibu’s litigation objectives were also confirmed by their
failure to accept the C.C.P. §998 offers to compromise for $18,500 and
$7500, respectively which were made by Defendants, after the MSC, on
February 11,2004. (AA 215, 228,410.)
Despite their lofty objective to obtain a six figure settlement
coupled with an absurd stipulation regarding the settlement’s future
admissibility in unrelated actions, Sulphur and Malibu ultimately recovered
a mere $3000 and $100, respectively. (AA 33, 506-509.) Such nominal
recoveries certainly do not establish that they succeeded in their litigation
objectives. Rather, they confirm that plaintiffs realized on the eve oftrial
what a tenuous case they had and offered to settle for a pittance simply to
extricate themselves from this action and to limit the amount ofattorney’s
fees and costs for which they would ultimately be liable to Defendants, i.e.,
they presumably sought to eliminate the significant risk ofa defense verdict
which would have entitled Defendants to all oftheir reasonable attorney’s
fees and costs as opposed to just the post-offer fees and costs to which
Defendants would be entitled by accepting Sulphur and Malibu’s May 21,
2004 C.C.P. §998 offers. Accordingly, Sulphur and Malibu cannot be
considered the prevailing parties under Civil Code §1717. In light ofthe
facts ofthis case, the trial court abused its discretion in ruling that Sulphur
and Malibu were, in fact, prevailing parties.

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The California Supreme Court has confirmed that “under
[C.C.P.] section 998 a defendant whose pretrial offer is greater than the
judgment received by the plaintiffis treated for purposes ofpostoffer costs
as ifit were the prevailing party.” Scott Co. ofCalifornia v. Blount, Inc.
(1999)20 Cal.4lh 1103, 1112.
Sulphur and Malibu did not accept Defendants’ February 11,
2004 C.C.P. §998 offers to compromise for $18,500 and $7500,
respectively. (AA 215, 228.) Sulphur and Malibu subsequently obtained
judgments against Defendants, including KPC, for a mere $3000 and $100,
respectively - less than the amount Defendants had previously offered in
settlement of Sulphur and Malibu’s claims. (AA 33, 506-509.) Thus,
Sulphur and Malibu are precluded from recovering attorney’s fees incurred
after February 11,2004 and, instead, must pay KPC’s attorney’s fees after
that date. Scott Co. ofCalifornia, supra, at 1112. However, the trial court
ruled that KPC was not, in fact, the prevailing party for purposes of
recovering its post-offer fees and costs because Defendants’ C.C.P. §998
offers to Plaintiffs were invalid. (AA 750-756.) This was error as
discussed below.
C. The Courl F.ired In Killing That KPC Is Not The Prevailing
Parly For Purposes Of Recovering Its Attorney’s Fees
Incurred After February 11, 2004
Code ofCivil Procedure §998 (c)(1) provides that:
If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorablejudgment or
award, the plaintiffshall not recover his or her
postoffer costs and shall pay the defendant's costs from
the time ofthe offer.

21. 13
153577
i. The Court Erred In Ruling That Defendants’ C.C.P. §998
Offers Were Invalid Because They Called For A
Confidentiality Provision
The issue ofwhether a settlement offer is sufficiently certain to
be enforceable involves a question of law, which the court reviews de novo.
Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119 Cal. App. 4th 263,
268; Barella v. Exchange Bank (2000) 84 Cal. App. 4lh 793, 797-798
(where determination ofvalidity ofC.C.P. §998 offer requires application
oflaw to undisputed facts, the trial court’s determination is reviewed de
novo.)
In this action, the trial court erroneously relied upon Barella v.
Exchange Bank (2000) 84 Cal. App. 4lh 793, to support its ruling that
Defendants’ C.C.P. §998 offers were invalid because they contained a
confidentiality provision. (AA 750-753.) However, Barella is inapplicable
because it involved a defamation action and a “secret” settlement, neither of
which are present in this case.
The Barella court took great pains to emphasize that in the
narrow context ofa defamation action a confidentially provision in a
C.C.P. §998 offer as to the contemplated settlement and its amount is
incapable ofvaluation and renders the offer invalid for purposes ofshifting
post-offer fees and costs pursuant to C.C.P. §998 because “the worth to an
individual ofthe chance to clear his or her good name is simply too
subjective.” Id. at 802. The court based its holding on the principles that
“our ‘[s]ociety has a pervasive and strong interest in preventing and
redressing attacks upon reputation” {Id. at 801) and *‘[t]he destruction that
defamatory falsehood can bring is, to be sure, often beyond the capacity of
the law to redeem.” Id. (citations omitted.) The court cited the examples of
a plaintiff wishing to clear his good name from allegations ofchild
molestation or transmitting a venereal disease and noted the difficulty a

22. 14
153577
Moreover, to the extent that the trial court intended to suggest
that Defendants’ offers are invalid because Plaintiffs’ right to “public
vindication” against their former attorneys cannot be valued, that reasoning
is without merit. See American Airlines, Inc. v. Sheppard, Mullin, Richter
& Hampton (2002) 96 Cal.App.4dl 1017,1056. In. American Airlines,
plaintiffAmerican Airlines sued its former attorneys for breach of fiduciary
duty and professional negligence. Defendants’ made a C.C.P. §998 offer of
$59,200 which American Airlines rejected. American Airlines later
obtained ajury verdict in its favor and was ultimately awarded a total of
$34,989.16. The trial court subsequently awarded defendants their costs,
trialjudge would have in placing a value on a plaintiffs desire to publicly
clear his name. Id.
In the present case, Plaintiffs did not seek to clear their names of
any allegations ofwrongdoing. (AA 1-19.) Rather, they simply sought to
recover the modest attorney’s fees (approximately $14,000) they paid
Defendants in connection with the underlying action involving the return of
the unused portion ofa furniture deposit. (AA 1-19,215-216, 247-253.)
Sulphur and Malibu’s goals are clearly not analogous to those contemplated
in Barella.
The Barella court also specifically stated that it was not
addressing “the validity ofa confidentiality clause that is attached only to
the amount ofthe settlement.” Id. at 798 (emphasis in original.) It further
acknowledged that “an offer made pursuant to [C.C.P.§998] may properly
include nonmonetary terms and conditions” (Id. at 799) and that “a
confidentiality clause may promote settlement.” Id. at 799 (emphasis in
original.) The court explicitly confined its inquiry to whether “a plaintiff
seeking to vindicate his good name (and to recover damages for its
famishment) [must] reject a generous-but secret-settlement at his peril.” Id.
at 795.

23. 15
153577
including expert witness fees, because American Airlines failed to obtain a
judgment greater than defendants’ C.C.P. §998 offer.
American Airlines appealed contending, inter alia, that it did
obtain ajudgment more favorable than defendants’ offer because it
obtained ajury verdict in its favor and “its primary purpose for litigating
was to obtain a determination that defendants’ conduct was improper and
constituted a breach of fiduciary and professional duty” and “thejudgment
finding defendants liable for breach offiduciary duty was in itselfmore
favorable than a settlement for $59,200.” American Airlines at 1054. In
affirming the trial court’s award ofcosts to defendants, the Second District
Court ofAppeal held:
A more difficult question is whether and how to
evaluate the worth to American ofwinning ajury
verdict against defendants, in determining whether
American actually obtained ajudgment more favorable
than defendants' section 998 offer. American contends
Id. at 1056; also see Rutter, Cal. Practice Guide: Civ. Pro. Before Trial CH.
12(II)-C, C. Statutory Offer To Compromise (CCP § 998) §12:662, p.
that the primary purpose ofpursuing this litigation was
to obtain a declaration ofdefendants' wrongdoing,
rather than to obtain a monetaryjudgment.
American's arguments are not unjustified.... We
cannot see how section 998 could retain any vitality..
. ifin each case in which it comes into play the
plaintiffcan attempt to argue that anyjudgment
declaring wrongdoing by the defendant is worth more
than the monetary amount offered in settlement. Such
an interpretation ofsection 998 would simply be
unworkable.

24. 16
153577
12(II)-34 (2004)(“the ‘worth’ ofobtaining ajudgment establishing
defendant’s wrongdoing is not considered in determining whether the
judgment ultimately recovered by plaintiffis ‘more favorable’ than
defendant’s §998 offer.”)(emphasis in original.)
The purpose ofrequiring the terms ofa C.C.P. §998 offer to be
sufficiently certain and capable ofvaluation is so that it is possible to
determine whether a plaintiffs recovery is “more favorable” than the
amount ofthe C.C.P. §998 offer. See generally Valentino v. Elliott Sav-On
Gas, Inc. (1988) 201 Cal.App.3d 692,700-701. Because the value of
obtaining ajudgment against a legal malpractice defendant, i.e., public
vindication, is not to be considered in determining whether thejudgment is
more favorable than the defendant’s offer, the fact that the offer contains a
confidentiality provision is irrelevant. The trial court’s ruling ignores this
fact as well as C.C.P. §998(b) which allows for non-monetary terms in a
C.C.P. §998 offer. Indeed, neither Plaintiffs nor the trial court cited to any
authorities which would support extension ofthe Barella court’s rationale
beyond the context ofa defamation action. (AA 39-194, 622-679, 750-
756.)
Further, the present case does not involve a “secret” settlement as
Barella did. In Barella, the defendant bank served a C.C.P. § 998 offer to
the plaintiffin which “the Bank offered to pay [plaintiff] $25,000 in
consideration for a dismissal with prejudice ofhis claims against the Bank
and an ‘Agreement to strictly maintain the confidentiality ofthe settlement
and the settlement amount.’” Barella at 796-797. Thus, the bank’s offer
contemplated confidentiality ofthe existence ofthe settlement itselfas well
as the amount ofthe settlement. Under such circumstances, the Barella
court held that “in a defamation action, a settlement offer that by its terms
cannot be made public, cannot be effective under section 998.” Id. at 801.

25. iwi
In stark contrast, Defendants’ C.C.P. §998 offers to Sulphur and
Malibu did not require the existence ofthe contemplated settlement to be
confidential. (AA 231-237.) In fact, the only practical effect ofthe
confidentiality provision in Defendants’ offers was to keep the settlement
amount confidential. The full terms ofthe settlement (Defendants’
payment to Sulphur and Malibu, dismissal ofthe action against Defendants,
a general release, and each party to bear their own fees and costs) were all
identified in Defendants’ offers which would have been made public when
filed with the court (with only the amount ofsettlement redacted) if
accepted. C.C.P. §998(b)(1); California Rule ofCourt, Rule 225.2 (AA
231-237.) Thus, the scope ofthe Barella confidentiality provision was
significantly broader than the provision at issue in the present case.
Moreover, the entire purpose behind C.C.P. §998 is to encourage
settlement. Elite Show Services, Inc. v. Staffpro, Inc. (2004) 119
Cal.App.4,h 263,268; Vick v. DaCorsi (2003) 110 Cal.App.4th 206, 212.
This purpose would be thwarted ifconfidentiality provisions were generally
held to invalidate a C.C.P. §998 offer. Confidentiality provisions are
routinely used in resolving a variety ofcases such as professional
malpractice and employment litigation. The use ofC.C.P. §998 offers in
these and many other types ofcases would be greatly diminished ifoffers
containing confidentiality provisions like Defendants’ were invalid. This
would undermine the objective of C.C.P. §998. For the foregoing reasons,
the trial court erred in ruling that Defendants’ C.C.P. §998 offers were
invalid because they contained a confidentiality provision.
Indeed, Defendants made a ('.P, §998 offer to plaintiff PCM that
contained Hie same terms ns the offers to Sulphur and Malibu. (AA ?8-30,
231 237.) Only the amount of the proposed settlement was redacted when
PCM’h acceptance of that offer was tiled with the trial court. (AA 2<» -3.'A
17

26. 18
153577
ii. The Court Erred To The Extent It Based Its Ruling On A Belief That
The General Release And Settlement Provision In Defendants’ C.C.P.
§998 Offers Renders Them Invalid
Although the presence ofa general release and settlement
provision in Defendants’ C.C.P. §998 offers does not appear to be the basis
upon which the trial court deemed the offers invalid, the court did state in
its September 2, 2004 order that Defendants’ offers were “subject to
criticism” for requiring a “release and settlement agreement, the full terms
ofwhich are not stated, but which is stated to extend to persons not
specifically named as parties to the litigation.” (AA 753.) Thus, in an
abundance ofcaution, Defendants will address this issue on appeal.
As noted above, the full terms ofthe contemplated release and
settlement agreement (Defendants’ payments to Sulphur and Malibu,
dismissal ofthe action against Defendants, a general release, and each party
to bear their own fees and costs) were, in fact, explicitly stated in
Defendants’ offers. (AA 231-237.) The offers do not contemplate any
terms in addition to those identified in the offers. (AA 231-237.)
Further, the fact that Defendants’ C.C.P. §998 offers called for a
routine general release of Sulphur and Malibu’s claims against Defendants
and their partners, agents or employees in the contemplated settlement
agreement does not render the offers invalid. Rather, C.C.P. §998 offers
containing general releases have expressly been deemed valid. See
Goodstein v. Bank ofSan Pedro (1994) 27 Cal.AppA1*1 899, 907-908.
In Goodstein, supra, the defendant bank served on plaintiff
Goodstein a C.C.P. §998 offer containing the following language:
In full settlement ofthis action, [Bank] hereby offers
to pay [Goodstein] the total sum of$150,000 in
exchange for each ofthe following: fl|] 1. The entry of
a Request for Dismissal with prejudice on behalfof the

27. 19
153577
Plaintiffin favor of [Bank]; ffl] 2. The execution and
transmittal ofa General Release by [Goodstein] in
favor of [Bank]; ffl] 3. Each party is to bear their own
respective costs and attorney's fees."
Id. at 905 (emphasis added)(brackets in original). The court rejected
Goodstein’s argument that the above language rendered the offer invalid
because it “required him to surrender ‘other present and future possible
causes ofaction against the defendant,’ thus rendering the offer ‘hopelessly
uncertain.’” Id. at 907. Rather, the court held that the offer was not invalid
or uncertain because “[t]he clear and unambiguous language ofthe offer
provides that the terms and conditions applied only ‘in full settlement of
this action.’ Accordingly, the offer reasonably cannot be construed to apply
to other litigation contemplated by Goodstein.” /(/.(emphasis added.)
Similarly, each ofDefendants’ offers stated that it was an “offer
to compromise this case” and therefore called for a settlement and release
ofclaims “arising from or related to the facts giving rise to this action and
the causes ofaction asserted in this action.” (AA 231-237.) (emphasis
added.) As in Goodstein, Defendants’ offers are clear that they are made to
“compromise this case” and, as such, “cannot be construed to apply to other
litigation contemplated by” Sulphur or Malibu. Thus, Defendants’ C.C.P.
§998 offers are not uncertain or invalid as a result oftheir general release
provision.
For the foregoing reasons, Defendants’ C.C.P. §998 offers are
valid. Accordingly, because Defendants’ offers are for an amount greater
than Sulphur and Malibu recovered against Defendants, Sulphur and
Malibu are precluded from recovering any fees and costs they incurred after
February 11, 2004 and, instead, must pay KPC’s fees and costs incurred
after that date. C.C.P. §998 (c)(1); Scott Co. ofCalifornia, supra, at 1112-
1113. The court, therefore, erred in awarding the Plaintiffs their attorney’s

28. 2. THE COURT ERRED IN AWARDING SULPHUR AND MALIBU
ATTORNEY’S FEES INCURRED ON BEHALF OF PLAINTIFF
PACIFIC COAST MANAGEMENT
addition to other costs.”
20
153577
Civil Code §1717(a)(emphasis added.) Further, a prevailing party may not
recover fees and costs incurred on behalfofanother party. See generally
fees and costs incurred after February 11,2004 and in denying KPC its fees
and costs after that date.
The standard for review ofthe amount ofan award of attorney’s
fees is abuse ofdiscretion. PLCM Group v. Drexler (2000) 22 Cal.4th
1084, 1095. However, a court “review[s] de novo the legal determination
that [a party] is entitled to recover attorney fees pursuant to contract.”
Whiteside v. Tenet Healthcare Corp. (2002) 101 Cal. App. 4th 693, 707;
Sessions Payroll Management, Inc. v. Noble Construction Co. (2000) 84
Cal.App.4th 671, 677.
The trial court erred in awarding to Sulphur and Malibu
attorney’s fees incurred on behalfofPCM because: 1) PCM is not a
prevailing party in this action; 2) Sulphur and Malibu are not entitled to
recover fees incurred solely on PCM’s behalf; and 3) PCM’s acceptance of
Defendants’ February 11,2004 C.C.P. §998 offer in this action requires
each party to bear their own attorney’s fees and costs.
Only parties determined to be “prevailing parties” may recover
fees and costs under Civil Code § 1717(a):
In any action on a contract, where the contract
specifically provides that attorney's fees and costs,
which are incurred to enforce that contract, shall be
awarded ... to the prevailing party, then the party who
is determined to be the party prevailing on the contract
... shall be entitled to reasonable attorney's fees in

29. 21
153577
Fennessy v. Deleuw-Cather Corp. (1990) 218 Cal.App.3d 1192. In that
regard, PCM settled its claims against Defendants by accepting Defendants’
February 11, 2004 C.C.P. §998 offer pursuant to which PCM and
Defendants would each bear their own costs and attorney’s fees in the
present action. (AA 26-32.)
However, in their motion for attorney’s fees, Sulphur and Malibu
inappropriately failed to allocate to PCM any ofthe attorney’s fees incurred
by Plaintiffs. (AA 39-194, 622-679.) In fact, numerous billing entries
submitted in support ofthe motion relate specifically to PCM. (See, e.g.,
Gustafson’s 5/7/04 entry (“Draft supplemental responses to special
interrogatories for PCM and MBLP in case parties do not settle”) (AA
158); Gustafson’s 5/17/04 entry (“begin working with R. Vos to prepare
voluntary supplemental responses for all three plaintiffs”) (AA 160);
Chatfield’s 5/18/04 entry (“work with Gustafson to put PCM settlement
agreement in final form and transmit to counsel for KPC”) (AA 118); also
see Gustafson’s 6/3/04 entry and Chatfield’s 6/3/04, 6/9/04, and 6/11/04
entries.) (AA 120, 121, 163.)
Sulphur and Malibu are not entitled to recover such fees incurred
on behalfofPCM. Moreover, because the remaining billing entries are so
vague, it is impossible to determine on which plaintiffs behalfany
particular task was performed. (AA 73-194.) Consequently, Defendants
argued to the trial court that at least one third ofthe fees at issue should be
allocated to PCM. (AA 211.)
The trial court ultimately ruled in its September 2, 2004 and
September 28, 2004 orders that Sulphur and Malibu were prevailing parties
on the contract and, therefore, entitled to recover their fees and costs. (AA
750-756.) The court did not find PCM to be a prevailing party. (AA 750-
756.) Indeed, PCM did not even seek to be determined a prevailing party
or seek attorney’s fees and costs. (AA 39-194, 622-679.) Thus, based

30. 22
153577
upon the court’s orders, only Sulphur and Malibu are entitled to recover
attorneys’ fees and costs (notwithstanding Defendants’ position that
Sulphur and Malibu are not, in fact, the prevailing parties in this action.)
However, the trial court’s September 2,2004 and September 28,
2004 orders awarding Sulphur and Malibu reasonable attorney’s fees did
not allocate any of the fees at issue to PCM despite the fact that numerous
fees were clearly incurred solely on PCM’s behalf. (AA 750-756.) The
trial court enumerated in its September 28,2004 order the various bases for
reducing the fees requested by Sulphur and Malibu. (AA 755.)
Significantly, it did not state that any fees were reduced as a result ofbeing
incurred on behalfofthe settling plaintiffPCM. (AA755.) The trial court
clearly erred in awarding Sulphur and Malibu fees incurred on behalfofa
non-prevailing party who specifically contracted with Defendants that it
would bear its own fees and costs in this action. Thus, this court should
reverse the trial court’s order and remand this case to the trial court to
reduce the amount ofthe fee award taking into account fees incurred for
work performed on behalfofPCM.
3. THE COURT ERRED IN AWARDING PLAINTIFFS THEIR
EXPERT WITNESS FEES
A trial court’s determination ofthe legal basis for an award of
attorney’s fees and costs is a question oflaw to be reviewed de novo.
Carver v. Chevron U.S.A., Inc. (2002) 97 Cal.App.4th 132, 142.
Regardless ofwhen Plaintiffs incurred their expert witness fees,
they cannot recover any portion ofthem. Fees ofexperts not ordered by the
court are expressly precluded by C.C.P. § 1033.5(b)(1). Neither Mr. Brown
nor Mr. Tuft were court ordered experts in this action. (AA 386.)
Moreover, there is no other statute (such as C.C.P. §998) that would permit
Sulphur or Malibu to recover any expert witness fees. Thus, the trial
court’s award ofexpert fees paid to Mark Tuft in the sum of $3,385.84 and

31. 4. THE COURT ERRED IN AWARDING PLAINTIFFS THEIR
COSTS FOR MODELS, BLOWUPS AND PHOTOCOPIES OF
EXHIBITS
5. CONCLUSION
Dated: February 4, 2005
LINDAHL, SCHNABEL, KARDASSAKIS & BECK LLP
23
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Based on the foregoing and the record herein, Defendants and
Appellants respectfully submit that the orders granting Plaintiffs’ motion
for attorney’s fees and motion to tax costs and the orders denying
Defendants’ motion for attorney’s fees and motion to tax costs should be
reversed.
to Michael Brown in the sum of$1500 are improper and this court should
reverse the trial court’s award ofsuch fees.
Regardless ofwhen Plaintiffs incurred fees for models, blowups
and photocopies ofexhibits, they cannot recover any portion ofthem.
Costs for models, blowups and photocopies ofexhibits “may be allowed if
they were reasonably helpful to aid the trier offact.” C.C.P.
§1033.5(a)(12). As the present action did not go to trial, none of Sulphur or
Malibu’s models, blowups or photocopies were “reasonably helpful to aid
the trier of fact.” Thus, there is no basis to support the trial court’s award
ofcosts for models, blowups and photocopies and this court should reverse
the trial court’s award ofsuch costs.
Bridget E. Bowie
Attorneys for Defendants
KNAPP, PETERSEN & CLARKE, STEVEN
RAY GARCIA, STEPHEN M. HARRIS and
ANDRE JARDINI

32. Dated: February 4, 2005
24
153577
BRIEF FORMAT CERTIFICATE PURSUANT TO C.R.C. 14(c)
Pursuant to C.R.C., Rule 14(c), in reliance on the word count of
the computer program used to prepare the brief, I certify that Appellants’
Opening Briefcontains 6736 words.
Bridget E. Bowie

33. PROOF OF SERVICE
PLEASE SEE ATTACHED SERVICE LIST
X
PROOF OF SERVICE
On February 7,2005,1 served the foregoing document
described as APPELLANT’S OPENING BRIEF on the parties in the
above-entitled action by placing true copies thereofenclosed in sealed
envelopes and addressed as follows:
---- (BY FACSIMILE) In addition, on I also faxed a copy ofsaid
document to all parties where indicated to the FAX number which is
printed under each address on this Proofof Service.
Executed on February 7, 2005, at Los Angeles, California. I declare
under penalty ofpenury under the laws ofthe State ofCalifornia that the
foregoing is true and correct.
BY MAIL: I am “readily familiar” with the firm’s practice of
collection and processing correspondence for mailing. Under that
practice, it would be deposited with U.S. Postal Service on that same
day with postage thereon fully prepaid at Los Angeles, California in
the ordinary course ofbusiness. I am aware that on motion ofthe
party served, service is presumed invalid ifpostal cancellation date
or postage meter date is more than one day after date of deposit for
mailing in affidavit.
__ BY FEDERAL EXPRESS as follows: I caused said document to be
sent Federal Express for overnight delivery (next business morning)
to the offices ofthe addressee.
I, the undersigned, am employed in the County ofLos
Angeles, State ofCalifornia. I am over the age ofeighteen years and not a
party to the within action. My business address is 600 South Figueroa
Street, Suite 1500, Los Angeles, California 90017.