SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO DEPARTMENT 71; HON. GREGORY W. POLLACK BRIGETTE BROWNING, a Citizen of the City of San Diego; SERGIO GONZALEZ, a Citizen of the City of San Diego; UNITE HERE LOCAL 30: Plaintiffs, )Lead Case No. v. )37?2012? THE CITY OF SAN DIEGO, a California municipal corporation) and DOES 1?20, Inclusive. Defendants. AND ALL RELATED CONSOLIDATED HUN??vva ACTIONS. TRANSCRIPT Friday, May 29, 2015 Appearances: For Plaintiffs: Office of the San Diego City Attorney By: M. Travis Phelps, Esq. 1200 Third Avenue, Suite 1100 San Diego, California 92101 619.533.5800 For Defendant: Briggs Law Corporation By: Cory J. Briggs, Esq. 814 Morena Boulevard, Suite 107 San Diego, California 92110 619.497.0021 Karen M. Guevara, CSR No. 12478 Peterson Reporting Video Litigation (Appearances Continued) Law Office of Craig A. Sherman By: Craig A. Sherman, Esq. 1901 First Avenue, Suite 219 San Diego, California 92101 619.702.7892 Law Offices of Richard M. Pearl By: Richard M. Pearl, Esq. 1816 Fifth Street Berkeley, California 94710 510.649.0810 Peterson Reporting Video Litigation MAY 29, 2015, 9:04 A.M. SAN DIEGO, CALIFORNIA ?oOo? Brigette Browning, et al. v. City of San Diego ?oOoe THE COURT: Good morning. Come on forward. This is in the Browning versus City of San Diego Case? I MR. PHELPS: Yes, it is, Your Honor. THE COURT: All right. State appearances, please. - MR. PHELPS: Deputy City Attorney Travis Phelps on behalf of the City of San Diego. MR. PEARL: Good morning, Your Honor. Richard Pearl on behalf of the defendant. MR. BRIGGS: Cory Briggs on behalf of the defendant, San Diegans for Open Government. MR. SHERMAN: Good morning, Your Honor. Craig Sherman on behalf of defendant, Melvin Shapiro. THE COURT: Okay. All right. Mr. Pearl, I want to be clear, have you. associated into this case? Peterson Reporting Video Litigation MR. Yes. THE COURT: And have you filed MR. PEARL: I believe We did. MR. BRIGGS: I filed it, and Mr. Sherman and I signed it and filed it. THE COURT: Okay. Fine. All right. Okay. So we've got a couple of motions here. The first motion that I want to do is not the attorneys' fees motion. I want to do the motion to strike the answer. You don't have my tentative, but I do have a tentative in mind. Let me tell you where I'm coming from on that. I'll cut right to the chase. I do believe that the City had a viable statute of limitations defense. I think that there is a host of case law, including opinion right from our own Division 1, Fourth DCA, and also a mention in a California Supreme Court Case that basically states that, once a suspended corporation obtains revivorship, if the statute of limitations has run, it's still game over. So ?m and Iive read your papers, and I understand your position on that, but there's too many cases out there that are saying the same thing, and that is that the statute of limitations is treated differently in terms of the effect of revival. Peterson Reporting Video Litigation believe that the City had a viable statute of limitations defense, and I do believe that, if it had been asserted prior to or at the time of trial, SDOG would have been bounced out of the case. Okay? However, the law is pretty clear that a defense like the statute of limitations has to be asserted at or about the time of trial. You canlt raise it for the first time after the case has already gone up on appeal, there's appellate opinion, and the time for petitioning the California Supreme Court has run. I mean, there's a concept of finality of adjudication. I know the City's position. The City?s position is that Mr. Briggs fraudulently concealed this. And you didn't and the City didn't find out until after the period had run, but the law's response to that is essentially, So what? I stumbled across a case, Cedars~Sinai Medical Center versus Superior Court, 18 Cal.4th 1, and I'm going to quote from page 10. It's a 1998 decision. And it involved the issue about Whether one could state a cause of action for intentional spoliation of evidence, but there is a great discussion in that case e? and I'm going to read it to you that is spot on our case here. Peterson Reporting Video Litigation says, "This same concern underlies another line of cases that forbid direct or collateral attack on a judgment on the ground that evidence was falsified, concealed, or suppressed. After the time for seeking a new trial has expired and any appeals have been exhausted, a final judgment may not be directly attacked and set aside on the ground that evidence has been suppressed, concealed, or falsified. Similarly, under the doctrines of res judicata and collateral estoppel, a judgment may not be collaterally attacked on the ground that evidence was falsified or destroyed. "As we explained more than a century ago, the rule against vacating judgments on the ground of false evidence or other intrinsic fraud serves the important interest of finality in adjudication. We think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents for perjured testimony. The reason of this rule is that there must be an end of litigation. And when parties have once submitted a matter for investigation and determination and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive. When the agreed party has a trial, he must be prepared to meet an exposed perjury then and there. Peterson Reporting Video Litigation The trial is his opportunity for making the truth appear. "If, unfortunately, he fails being overborne by perjured testimony, and if he, likewise, fails to show the injustice that has been done to him on motion for a new trial and the judgment is affirmed on appeal, he is without remedy. The wrong in such case is, of course, a most grievous one, and no doubt the legislature and the courts would be glad to redress it if a rule could be devised that would remedy the evil without producing mischiefs far worse than the evil to be remedied. Endless litigation in which nothing was ever finally determined would be worse than occasional miscarriages of justice." So I think that's what we have here. The City, in asking the Court to strike the answer of SDOG, is, in a sense, requesting-the Court to vacate the I judgment which SDOG obtained in its favor. And it can't do it, even if we assume, for the sake of argument, that Mr. Briggs fraudulently concealed the incapacity of the corporation to file its answer. I Okay. So that?s the way that's my ruling Subject to argument, but it's got to be pretty persuasive argument because I think the law is clear in this area. Peterson Reporting Video Litigation Now, anticipating what the City might say is there is a doctrine whereby the Court can void a judgment at any time. If you look at CCP section 473(d), it says the Court can void a judgment or order at any timevoid judgment. And those examples of a void judgment include a situation where, let's say, a party was never served by the complaint, and that a judgment was taken and a party discovers ten years later that there's a judgment against it, and it was never even served. A Court can void that. The Court can also void for extrinsic fraud. Let's say that I have a lawsuit against someone, and go to that person the day before trial and I say, "Don't show up at trial. I'm going to dismiss-the case." And then the person relies on it, doesn't show up to trial, but I show up at trial, and I get my judgment. And then, many years later, the defendant learns of this. The defendant can move to void that judgment because that's a void judgment obtained through extrinsic fraud. But the Court draws a distinction between extrinsic fraud, which can result in a void judgment, and intrinsic fraud, which cannot. And this when we're talking about fraudulently concealing the capacity of the 4? of, in this case, the defendant, the Peterson Reporting Video Litigation defendant, which we now know was suspended and did not have the capacity to sue or be sued, that kind of concealment is intrinsic, and it doesn't result in a void judgment. So the bottom line is, the City had a viable statute of limitations defense. It wasn't asserted, not as a result of any fault on the City, but the facts are stubborn. It wasn't asserted, and therefore, it can't be asserted at this late date. So I'm denying the motion to strike the answer. Now, there's also the motion-to strike the claim for attorneys' fees, and I've thought and that would only be as to Mr. Briggs, not Mr. Sherman. The approach I want to do with that is to not award the Briggs firm any attorneys' fees for that period when it was doing legal work for this suspended corporation. Okay. I don't want to condone what was done here. It seems clear that Mr. Briggs was well aware of the unsuspended or the suspended status of his client, SDOG, and without disclosing that, proceeded to litigate, and that behavior is arguably viOlative of Revenue and Tax Code section 1970 l97l.9, which makes it a misdemeanor possibly resulting, per terms of the statute, for imprisonment not exceeding one year. Peterson Reporting Video 8.: Litigation have and I'm not making any finding with regard to whether Mr- Briggs did or did not violate that statute, but, certainly, it was inappropriate legal representation, and the Court is not going to condone that by awarding attorneys' fees for such representation. So, with regard to the motion for attorneys' fees as it relates to the suspended issue, the Court would lop off any hours done by the Briggs firm prior to November 20. I think that was the date that revivorship was obtained. In addition, the Court would lop off at the back end any attorneys' fees incurred by or generated by the Briggs firm for any work done in opposition_to this motion to strike because the City?s motion, though unsuccessful, was a direct consequence and proximally caused by Mr. Briggs' representing in court a corporation that was suspended. So there you have my tentative ruling. The answer is not going to be stricken. The judgment is going to remain as is. Briggs' client, SDOG, is a prevailing party. It's going to be entitled to attorneys' fees we'll talk about in a moment e? but not attorneys' fees during either the period of suspension or any attorneys' fees generated in defense Peterson Reporting Video Litigation the City's motion to attack the answer. So who would like to be heard? MR. PHELPS: The City would, Your Honor. THE COURT: Okay. MR. PHELPS: Your Honor, I understand your position in dealing with the attorneys' fees issues, whether they're entitled to any attorneys fees at all. I think the fact that it was a criminal act to actually be in this case, period, means that, looking at it from just from the attorneysl fees standpoint, you're entitled to reasonable hourly rate for reasonable time expended. It wasn't reasonable that they were in this case at all. Any time expended in this case was not reasonable. It was the reSult of them knowingly they knew they were suspended at the time they answered the City's complaint through their corporation they did, through its CEO and president who signed revivor documents before they filed the complaint, the attorneys knew. They received the notice of suspension, which clearly referenced 1971.9. - THE COURT: Yeah. But the bottom line is, they did succeed in obtaining the revivorship, and once having done that, I think their attorneys' fees thereafter should be honored, to the extent they're reasonable. We'll talk about that in a moment. Peterson Reporting Video Litigation 25' MR. PHELPS: Again, I think, we get back to the reasonableness of how they involved themselves in the case, how the injected themselves in the case that they never had any right to be in. It doesn't seem like the statute of limitations' argument is an issue for you. I think you understand that the answering during 'that time frame is a statute of limitations issue. THE COURT: You're right on the law there,'but you're wrong on the notion that you can assert it at such a late date. MR. PHELPS: Your Honor, I would beg to differ that you can assert it in-defense of this attorneys' fees motion. Again, we didn't discover this until after the time frame to even petition THE COURT: Let me give you a hypothetical: Suppose you lost a-case. Let's say you lost a medical malpractice case. You sued a doctor for medical malpractice, and the whole issue was lack of informed consent. And your client, the patient, took the position that this doctor never advised me of the potential risks and complications of the surgery; that, if this doctor if the defendant doctor had so advised me, I would not have consented to the procedure. So the case goes to trial, the doctor wins, and the doctor wins because at the time of trial he Peterson Reporting Video Litigation 10 perjures himself. He tells the jury, Oh, I did advise. In fact, look at my medical records. There's a note here where I document it. So you lose the case. Then, five years later, you find out you come to grips with evidence that the doctor perjured himself and forged that note. You've been without any fault. Do you think you could set it'aside? MR. PHELPS: I think that's a different situation, Your Honor, as far as we're not trying to set aside the judgment right now. We're trying to defend ourselves from a huge amount of attorneys' fees that they're requesting and requesting a multiplier based on being rewarded for activity which they should have never had an opportunity to be involved in. I THE COURT: Oh, I thought are you addressing my ruling about not striking the answer. You're okay with that? MR. PHELPS: I'm okay with that, Your Honor. THE COURT: I'm sorry. MR. PHELPS: I think we can go directly to the attorneys' fees and whether they should be awarded the attorneys' fees motion period. The City knowledges that they can't change the outcome of this case as far as Mr. Shapiro here, as Peterson Reporting Video Litigation - 11 well. Nothing is going bring back the City's ability to go forward with the special tax{ What the City is trying to do now, Your Honor, is really defend itself from being hit with a large amount of attorneys' fees in this case. And THE COURT: But Mr. Briggs the bottom line iswhat I think was high?quality work and got a great result. I mean, I don't know that I see what you're saying. .I think I've addressed it by not awarding any attorneys' fees for the front end imprOpriety and also the back end attorneys' fees that might be incurred that were incurred trying to defend the impropriety at the front, but I'm not going to strike out that meaty middle when he was providing quality care or I'm sorry, providing quality lawyering which obtained an excellent result for his client at a time when the revivorship had been 'granted. I'm just not going to cut that out. MR. PHELPS: Again, Your Honor, the only reason that he was able to do that was because of the concealment, was because of you have case law that says that that type of concealment, that type of activity, the Palm Valley Home Owners Association's case. That's sanctionable conduct. That's bad faith. That's a crime, Your Honor. Peterson Reporting Video Litigation 12 THE COURT: Again, I'm not making any findings of that. - I And, in fact, Mr. Briggs, before you address the Court, I want to put on the record that I'm advising you that anything you say could be used against you. Okay. You're smiling. MR. BRIGGS: I know. THE COURT: You might not be if you get criminally prosecuted. MR. BRIGGS: No. I was only smiling because I was going to say something to this effect when it was my turn, so THE COURT: Yeah. I mean, I am not making light of what is alleged here. This is very serious. The evidence, as I've seen it 4? and this is not a criminal trial, and there may be a lot of other evidence the other way a" but the evidence here that I've seen is that, at the time the Briggs firm filed this answer, it well knew that it was filing it on behalf of a suspended corporation. And this statute section, 19719, seems to apply to attorneys. It says, "Any person who attempts or purports to exercise the powers, rights, and privileges of a corporation that has been suspended pursuant to section 23301 or who transacts or attempts to transact interstate business in the state on behalf Peterson Reporting Video Litigation 13 foreign corporation, the rights and privileges of _which have been forfeited pursuant to this section, is punishable by a fine of not less than $250, not exceeding $1,000, or by imprisonment not exceeding one year or both fine and imprisonment." And then, if you look at subsection B, it says, This doesn't apply essentially, it says this won't apply to an attorney retained by an insurer. Okay. So the fact that subsection says specifically, This won't apply to an attorney retained by an insurer tells me that, if you're an attorney not obtained by insurer, you're subject to this. So this is very serious. I'm not for a minute suggeSting that the Court is unconcerned by what happened here. Plus, there's allegations here. There's a table that was prepared that listed the dates of other actions filed by SDOG, and as I count it, it looks like there's at least four others, maybe more, that were filed during this period of suspension. So Mr. Briggs may be in a whole heap of trouble with, not only the State Bar, but potential criminal prosecution, but I'm not addressing that. I?m just issue spotting.' And I'm not going to award any attorneys' fees for work he has done at a time when this corporation was suspended. So that's the extent that Peterson Reporting Video Litigation 14 I'm going to do this. MR. PHELPS: Your Honor, I think it's essentially undiSputed that w? your statement right there was that it's you're basically finding that he did know at the time that he filed that. THE COURT: I'm not making any findings on that specifically. MR. PHELPS: I think that, for purposes of this attorneys' fees motion, it's not inappropriate for you to make such findings to be able to determine whether it was reasonable to be expending and expending that time on this case._ Again, if he knowingly 4? Mr. Briggs if the Briggs Law Firm knowing participated and SDOG, the corporation, knowingly participated in this case in violation of that section, which was set forth in the notice that we received back in April that they filed revivor papers ?e at least a set of revivor papers before they filed the answer in this complaint, then all the time that they spent in this was part of only because of the criminal act. THE COURT: Well, hold on. No. No. No. It's not the Court's role to talk about .potential defenses Mr. Briggs may have, but, for what I've seen, a paralegal clearly new about it, I think Peterson Reporting Video Litigation 15 Keri Taylor. Is that right? MR. PHELPS: Correct. COURT: Help me out here. MR. PHELPS: Correct, Your Honor. THE COURT: She clearly knew about it at that time because she discovered it in May, and there's actually contact that she had with the State, I think, in June. 9 So, clearly, the firm was on notice 5? on notice to her, but it may be that Mr. Briggs was unaware of it himself. I mean, I don't ?w we don't need to go there. If actions are brought against him, he will obtain competent defense counsel, and he may have a response to this, but just knowing the firm someone in the firm knew about it, because knowledge of the agent is imputed to the principal for purposes of this analysis by me. Just knowing that his paralegal knew about it and actually submitted an application to correct it and knew it hadn't been corrected at the time this is filed makes it, in my mind, game over on attorneys' fees for that period when the corporation was suspended. MR. PHELPS: And, Your Honor, before, obviously, SDOG itself clearly knew about it. Their president and CEO signed and at least initialed the Peterson Reporting Video 8: Litigation 16 documents before that time. Again, this is a corporation that inserted itself into litigation through what is really, undeniably, at least for those individuals, a criminal situation, and continuing to go forward and, basically, going forward, ultimately, with a hope of a reward at the end, attorneys' fees.' They shouldn't be rewarded for that conduct, Your Honor. Again, it's not reasonable for them to have expended that time. The City had to expend its own resources to defend against them in a case that they never should have been involved in. Now they're asking to be rewarded 650 an hour. The multiplier they're requesting is $1300 an hour for an activity that they should never have been involved in. THE COURT: Okay. Mr. Briggs, do you want to address the Court? You don't need to. MR. BRIGGS: I don't. THE COURT: Okay. All right. All right. So anybody else wish to comment on the Court's tentative, which is about to become the ruling? MR. BRIGGS: Could we just have 30 seconds so one of my colleagues can address the Court? THE COURT: Sure. -Yes. Peterson Reporting Video Litigation 17 (Whispered conversation between Mr. Briggs and Mr. Pearl.) MR. PEARL: The only thing we would like to add, Your Honor, is that we're accepting your tentative ruling. We would like the opportunity after the hearing to go through our billing records, pick out the time entries that meet your objections, make or modify our claim accordingly, send it to Mr. Phelps for his approval of the time that was taken out, the time during the suspended period and the time spent on the objection to the motion to strike, and then submit it to you with a revised order. THE COURT: That's exactly what I was going to propose. You're not going to leave the courtroom today with a dollar figure amount from me. MR. PEARL: Right. Right. THE COURT: You're going to need to meet and confer on that issue. MR. PEARL: Okay. THE COURT: Okay. So now let's move to attorneys' fees. Let me tell you what my thoughts are, and I don't think either side is going to be happy with what I'm doing here, but I do believe it's the right thing. Let me start with your involvement, Mr. Pearl. Peterson Reporting Video Litigation 18 What I would like to do and what I'm going to do here is I'm going to take out all of the fees that were generated in bringing the motion for the fees. I'm not deleting it, but I'm going to put it in a box and tell you what I think that box should have reasonably yielded. Okay? Before I start, I want to say something about Mr. Pearl. I have utmost respect for you, sir. You are I have your books in my chambers right now. You are the national at least the state authority on attorneys' fees motions. So don't be mad when I cut your fees. It's not because of that. MR. PEARL: I appreciate that,. THE COURT: I'm cutting the fees, just the way a parent might cut the fees of a math professor who the parent hires to tutor her first grader in arithmetic. Okay? think, respectfully, that I don't want to say you're too qualified for this case, but I don't think that your fire power was necessary. Mr. Briggs and Mr. Sherman are very capable attorneys. They've made fee motions numerous times, and I understand they've been met with success in yarious degrees. That they would hire or feel the need to hire, basically, a national expert out of town at 750 an hour to process Peterson Reporting Video Litigation 19 this motion is something that they clearly had the prerogative to do, but I don't think they had the prerogative to do on the City's dime. This is a relatively uncomplicated motion for attorneys' fees, if you think about it. I mean, first of all, whether there's an entitlement to 1021.5 fees really isn't in dispute, other than the suspension issue. I mean, the City actually put, I think, in H.10 of the memo that we don't dispute that Mr. Sherman is entitled to 1021.5 fees. So and that's an area where often there's a real fight, you know, should you know, is this party entitled to 1021.5 fees? There was a total pass on that. That doesn't even need to be litigated. That's a given. The other thing that made this simple is the City did not really attack any of the entries by Mr. Briggs and Mr. Sherman. It conclusorily said they spent too much time. The only entries they attacked were, I guess, 139 hours of Mr. Briggs, which actually falls into the period for which w? during which I'm not going to give a recovery. It was at the very front end. The City did not e? the City suggested there was duplicative work by Mr. Sherman and Mr. Briggs. They didn?t point out a single entry where they supported that. Peterson Reporting Video Litigation 20 You know, the City can?t just come to court and say, You know, Mr. Briggs, Mr. Sherman, your fees are too high, you spent too much time, and not point out a single entry where there was unnecessary duplication or too much time spent. I just that struck me. And, in contrast to that, Mr. Briggs and Mr. Sherman documented exceedingly well what they did. It's not the role of the Court to take all the bills here and go through each line, Let's see. On April 26, Mr. Sherman was at a hearing for two hours, but Mr. Orrick billed only 1.8. Therefore, there must have been a 0.2 padding here. That's not the role of the Court. The City could have hired some auditor to go through the bills. They've done'that I don't know if they've done other cases, but there was another case where there was a detailed attack on entries. That Ireally wasn't done here, and that really is the City's burden. Now, that doesn't mean that, if there's something that jumps out at the Court, the Court is going to ignore. For example, Mr. Briggs, you're requesting Westlaw fees. I'm not going to award any Westlaw fees. I think that's built into the hourly rate, even though the City didn't raise that. So what I was getting at, Mr. Pearl, is the Peterson Reporting Video Litigation 21 whole notion that this case, really, it was a very complicated underlying case but a relatively simple motion for fees. It was, basically, you had to establish the reasonable hourly rate multiplied by the reasonable number of hours, and then make an argument, whether a multiplier should apply. _The law really there's a.lot of nuances. You've got a two?volume book on it. MR. PEARL: Right. THE COURT: But here it really wasn't that d? it didn't come into play. So what I am going to do with that with the stuff that I put in the attorneys' fees box e? and you're not going to be happy with it, Mr. Pearl, but again, I want to say this, I'm doing it respectfully with no insult to you. It seems to me that the attorneys' fees stuff could have been done for 50 hours. So I'm going to award I want to you take out everything e? when you come back here, I want you to pull out everything relative to the attorneys' fees motion, put that in a box, and you're going to get 50 an hour at and now let's talk about the rate. I understand that Judge Prager two years ago Judge Taylor, I think, has ordered awarded 550 an hour. 550 an hour. I think Judge Wohlfeil has given 550 an Peterson Reporting Video Litigation 22 hour. Mr. Briggs, have you ever gotten more than 550 an hour in San Diego? MR. BRIGGS: No, Your Honor. THE COURT: Okay. How about you, Mr. Sherman? Ever get more than 550? MR, SHERMAN: Not that I can think of, no. THE COURT: Okay. So and I'm not doing it just because other judges have done that. And I've read all of your stuff, Mr. Pearl, where you make arguments that it could be, you know I think the highest was over $1,000 an hour. And I don't doubt that some firms are probably charging that, but and I've read the City's position where I think it's I think you had a low of 350 and then you suggest 375. I'm going to go with w? for Mr. Briggs, Mr. Sherman, and Mr. Pearl, I'm going to go_550 an hour. Okay. For any associate work, I'm going to go 225, and any law clerk or paralegal, I'm_going to go 110. And, asII said before, I'm going to pull out Mr. Briggs' in addition to the two the front and the back end subtractions, the Westlaw. And then I've already told you the attorneys' fees. It's going to be 50 hours at 550 an hour. Now, the question is, how is that apportioned, Peterson Reporting Video Litigation 23 because three different lawyers worked on that? Presumably you get along well, and I'll just allow you guys to determine how you think it ought to be apportioned. If you can't agree, then what the Court would do is ?w and I'll retain jurisdiction. I can decide that. Perhaps one way of doing it would be to figure out add up the total number of hours each of you spent on the motion, and then that will be the denominator, and then, as the numerator, your own numbers, and you can apply that so you can proportionally get the same. It may be, on the other hand, Mr. Pearl, given your distinguished background and probably quarterbacking role in this that the parties may agree that you, for ekample, would get two?thirds and they would share the one?third. It doesn't matter to the Court. It just seems that this was something that should have been done with 50 hours. I've seen it done well less than 50 hours in other cases. MR. PEARL: Your Honor, I don?t think we'll have any problems with what to do with 50 hours. THE COURT: Okay.' MR. PEARL: We can come back to you, but I strongly doubt we will. Peterson Reporting Video Litigation 24 THE COURT: Okay. MR. PEARL: Do you want me to address this now, or do you Want to continue with THE COURTE Well, I'm trying to think if I have any more thoughts that need to be expressed because I did not give a written tentative. And by the way, there?s a reason for that, quite frankly. As may know, I'm covering for Judge Prager. I have not been assigned these cases. I'm covering for Judge Prager. So, because there hasn't been formal notice of an assignment, the 107.6 clock Ihasn't started to tick, and I don't want to publish a tentative. And someone see it's against their client and then do a l7l section. 80 in law and motion, I'm not going to do a 171. In this case I could have because, as'I understand it, the City used a silver bullet against Judge Dado. Mr. Briggs, you used you're silver bullet against MR. PHELPS: Hayes, I believe. THE Judge Hayes. And, Mr. Sherman, you used it against yet another judge, which the law is the law says you only get one per side, not one per party. So you guys got an extra shot over here on the defense side. Yeah. Peterson Reporting Video Litigation 25 Okay. Well, anyhow, go ahead, Mr. Pearl. MR. PEARL: You didn't address the multiplier, Your Honor. Do you want THE COURT: Well, you know, that's where_ you?re probably not going to be happy. I'm not going to give a multiplier.- And I see your exasperation, but I think that that 550 an hour figure includes the kinds of things that one would put into a multiplier. That is a high hourly rate. And let me just make an observation: You guys asked for 650 an hour, and if you apply a multiplier I did the math. If you apply a multiplier to the 650 an hour, that?s an effective hourly_rate of $1300 an hour. That comes to almost $22 a minute. So, if you think about it, you're asking for a rate that is, essentially, three times the federal minimum wage every minute. Now, obviously, you don't determine attorneys' fees by comparing to the federal minimum wage. I'm not suggesting that, but at some point it does become offensive. I And I think in this case, a good result was obtained. I'm not suggesting it's not, but I am not going to award $1300 an hour for this legal work. Not All right. going to do it. Okay? MR. PEARL: I'll try to be brief because I Peterson Reporting Video Litigation 26 know you've thought about this a lot. THE COURT: I've given it a lot of thought, yes. I MR. PEARL: I can tell. Let me maybe the best way for me would be to start from the back, from the multiplier, because I only there's only one thing I can really say, which is, the 550 an hour is, by definition, the rate that would be charged in a non?contingent case by attorneys handling this case getting paid regardless of success. The element of risk in-this case was significant, and I would just ask the Court to think what would the Orrick firm have charged if their fees were contingent on success? They would not have .accepted 550 an hour for everybody in their firm. They would have wanted a lot more than that if they were only going to get paid if they win. And that's, essentially, what we're asking for. THE COURT: Well, they would want more, but I wouldn't award them more. I By the way, this argument that a big firm that has its overhead and all is entitled to more doesn't carry any weight with this Court. Okay? I don't think because someone practices in a highrise building with glass walls and hands out bottled water with the firm's Peterson Reporting Video Litigation 27 name on it requires that their lawyers be paid more because, quite frankly, it doesn't make for a better lawyer. I'll take the guy who is working in Pacific Beach in a polyester suit working behind a desk made of pressboard who comes here and makes the good argument. MR. PEARL: I couldn't agree more, Your Honor. THE COURT: Okay. I MR. PEARL: But I?m not making the point that. they're a big firm. It would be the same if they were a smaller firm or whatever. The fact is that the City found 550 an hour was a reasonable rate to pay them on a nonecontingent basis. And it doesn't seem like that should be the same fee that the defendants' attorney should get on an entirely contingent basis because of the great risk they took. This was an appeal that was by no means a slam drunk. Anytime you challenge the constitutionality of a city decision like this you're facing daunting odds. And my point about Orrick not doing it is that, in the private market, very few law firms are willing to take that kind of risk without some guarantee from their client in the legal marketplace that they'll get more than a normal hourly rate if they win. And, if a 2.0 is maybe higher than the Court is comfortable with, we would ask the Court to consider Peterson Reporting Video Litigation 28 some.lesser multiplier that would take into account the risk factor so that the defendants' attorneys are not getting paid, essentially, the same thing for taking a risk and putting their practices at risk and their personal finances at risk that the Orrick firm or any other firm the City hired was getting on a non?contingent basis to lose the case in this case. So that's our primary point. The idea of a risk multiplier is to reflect how the legal marketplace works. And I don't think there could be any dispute that in the legal marketplace lawyers cases. And even if, you know, we can look at personal injury cases where they're done on a percentage, those effective-hourly rates are often very high because they take into account the fact that you're not always going to win, but it's the same concept here. In terms of the hours, I think the Court has already stated, basically, what our position was, which get more for risky is the City failed to make any evidentiary objections of any weight to won't belabor THE know the City why are these the number of hours that were spent. So that point. Yeah. With regard to the hours, said that the Orrick firm spent 800 and guys w? why are these guys in the I . I neighborhood of 1800? But Mr. Briggs pointed out in his Peterson Reporting Video Litigation 29 declaration that it's actually that Orrick firm spent about 1200, and not only that. The City didn't provide any evidence as to the number of hours it spent. In other words, I know you guys don't keep billing records, but I didn't see a declaration from anybody saying, you know, Although we don't keep track of our hours, we would not have spent more than 50 hours on this because we turned it all over to the Orrick And you have firm. I didn?t see anything like that. the power to do that. And the law basically says, when a party has is in a better position to produce evidence and fails to do so, what it does produce should be viewed with suspicion. There's a jury instruction to that effect. So it wasnlt clear in my mind whether your side actually spent more hours than Mr. Briggs and Mr. Sherman. It really wasn't. MR. PHELPS: If I may address quickly, Your Honor. THE COURT: Yeah. Please do. MR. PHELPS: As far as Orrick, a lot of time spent above the 800 hours, Orrick was our formation counsel that was involved in this. So it had nothing to do related to the litigation at all. They were involved in the formation of the district and the election Peterson Reporting Video Litigation 30 process of the district. It had absolutely nothing to do with the litigation beyond that 800 hours. The City itself, just because it has names on top of a pleading because we're co?counsel in a case or monitoring our outside counsel, doesn't mean that Jan Goldsmith or the higher?up attorneys are working on that case. For example, I was involved as co?counsel in the case, but I didn't actually work on the merits of the case. I was just a monitoring attorney. THE COURT: Where's the declaration that tells the Court how many hours the City spent on this case? I just didn't see that. I saw evidence that there were _four or five City attorneys who worked on this case, but you didn't are you now telling me that it was turned over to Orrick and you guys did nothing? MR. PHELPS: The only thing that the City did was we occasionally handled an inecourt appearance, because Orrick is in San Francisco and Orrick is in Sacramento, our attorneys. We did_have ?e Glenn Spitzer from our office did handle the CEQA issue. That issue he put in, I believe, approkimately 80 hours, but we didn't keep our time on that. We don't record that time. THE COURT: But see, I've considered that. There's not a declaration. I just have no idea. I Peterson Reporting Video Litigation 31 25. mean, I e? it's incumbent to do that. _You can't just broad brush these things and say, Too many hours spent, or, you know, We spent less, without telling me what you spent. I just I mean, I'll tell you, it seemed like a lot of hours, quite frankly, when I first looked at it because there was no significant discovery here. There was no extended trial at all. It was just a motion. There was briefing at the trial level, and then briefing at the appellate level. MR. PHELPS: And,.Your Honor, that's what the City tried to point out, You Honor. There was zero substantive motions, other than, at the trial level, one opposition brief. The City was the moving party at the trial level. I To try and assist you just to realize, this is really treated as an administrative writ. No discovery was done. SDOG actually did do some discovery while they were a suspended corporation and the City didn?t know it at the time. THE COURT: No substantial discovery. MR. PHELPS: No substantial discovery whatsoever. The City was the one who put together the record. Mr. Sherman did add some things to the record, but the City didn't want to get into disputes and prolong things. We simply added that to the back of the- Peterson Reporting Video Litigation 32 record. What the City has_done, just to give Your Honor a little better idea of what was actually filed in this case by the parties, just pull it from the Register of Actions so you can see what each individual party filed, and it's very brief, Your Honor. This actually makes it look much longer because it involves stipulations. We pulled anything that referred to Melvin Shapiro or SDOG. The reality of it is, though, there's simply a motion on the merits and the appeal actions. These are what was pulled before the issuance of the remittitur. THE COURT: Yeah. The one question I have ?m and you didn't raise this in your papers is, we have the underlying trial, which was just submitting trial briefs and the Court ruling on that. And at that point in time, it would seem to me the legal issues were extensively briefed, and then there were hundreds of- hours spent. Okay? So then it travels up to the Court of Appeal, and the general rule is, you can't raise new issues on appeal. And to the extent that there was this extensive briefing, hundreds of hours at the trial level, I was .I had a question in my mind why how much more time was spent on researching, really, the same issues at the. Peterson Reporting Video &'Litigation 33 .appellate level. And I understand that there would be a you wouldn't just want to submit your trial brief to the Court of Appeal and say, This is it. You've got to format it and maybe do some more research, but you wouldn't have to reinvent the wheel. So what would be your response if the Court were inclined to cut some of the appellate hours on the ground that it was just researching what had, essentially, already been fully briefed for the Trial Court? MR. PEARL: A couple things, Your Honor. First of all, they didn't raise it, so we didn't have a chance to address it in our declarations. THE COURT: Right. MR. PEARL: Secondly, there were no declarations filed by anybody on the City's side saying that any of the time was unreasonable, Judge. And Your Honor mentioned hiring an auditor, but they also had attorneys who work in this field who came in and_said what their rates were, but none of them said the time spent on the appellate process or the trial court process was unreasonable. Third, there is w? the appellate hours were what they were for two reasonsresponse to what actually happened at the trial Peterson Reporting Video Litigation 34 court, what the Trial Court did. In other words, you couldn't just take the arguments you've made to the Trial Court and ship them up to the Court of Appeal because the Trial Court says certain things and did certain things. But more importantly, the cases recognize and I can I think I can cite you to the case off the top of my head, but if not, I can certainly submit it. They recognize that appellate work isn't simply repackaging and doing a few new a little bit more research and then sending it to the-Court of Appeal. THE COURT: Well, it may or may not be,- depending upon what was briefed at the trial level. I assumed that no new issues were raised on appeal. Maybe they were. MR. SHERMAN: If I might, Your HOnor. THE COURT: Yes. MR. SHERMAN: Judge Prager in his ruling raised new cases and issues that did take it in a different world of THE COURT: Okay. MR. SHERMAN: water law and THE COURT: See, that would have been helpful if or if we had a declaration from the Orrick firm indicating e? actually, I think there is. Peterson Reporting Video Litigation 35 have a breakdown between trial hours and appellate hours from the Orrick firm? MR. BRIGGS: Your Honor, that doesn't come from Orrick. That was Mr. Phelps' declaration. The Orrick declaration simply tells you what the rates were. THE COURT: Oh. MR. PHELPS: There is a breakdown of the hours. There's a breakdown of the hours between, again, what I've stated earlier as far as what they did for formation and what they did for litigation, as well. THE COURT: Okay. _So the litigation was 800, but how is that apportioned between trial and appeal?. MR. PHELPS: That was actually shown through the discovery or through the attorneys' hours that Mr. Briggs himself had broken down by month, and you can tell how it was apportioned. THE COURT: Well, what was the bottom.line if they did expend a substantial amount on appellate hours? What do you think? MR. PHELPS: There wasn't COURT: I had the same question about theirs, I believe. Okay. So that's kind of a wash. MR. PEARL: Your Honor, one more point, which is, on appeal defendants were the appellants. 'They had Peterson Reporting Video Litigation 36 the burden of convincing the Appellate Court that the Trial Court was wrong. They had to do the opening briefs and the reply briefs. They also had to do the post decision work in the Supreme Court when parties came in and tried to get the decision de-published. All of that work was done pursuant to the victory they obtained here. THE COURT: Was Orrick even on the case at that point? MR. PEARL: I don't know that. MR. BRIGGS: Technically, yes, Your Honor. THE COURT: But who was doing the work? The City was doing that? MR. BRIGGS: Yes. THE COURT: Yes. 'See, that's the thing. I don't have the full picture of what your side spent in terms of hours. I really don't. And you guys have the power to produce that evidence, and you didn't. MR. PHELPS: If I may, I apologize, Your Honor. Which time frame are you talking about, Mr. Pearl? THE COURT: We're talking about post appeal, the issue about whether there should be a de?publication. Where you guys on that? MR. BRIGGS: The City didn't challenge or have Peterson Reporting Video Litigation 37 any participation in the de?publication. THE COURT: So Orrick did all of that? MR. BRIGGS: Orrick wasn't involved in that, either. That was from other parties. That wasn't from the City or from Orrick. That was from outside parties that were THE COURT: Orrick doesn't have anything to do with this attorneys' fees motion, right? MR. Orrick was not involved in the attorneys' fees motion. THE COURT: When did their meter shut off? MR. PHELPS: After the City had made a decision not to move forward with the review to the Supreme Court, Your Honor. THE COURT: Okay. MR. PEARL: So, anyway, those are all the reasons that the appellate hours what they are. And I think we've sited other cases which have far more appellate hours for caught cases no more complex than this one on appeal. THE COURT: Okay. MR. PEARL: To get to the rates, Your Honor, and I know you're running to a calendar matter. THE COURT: well, actually, I law and motion is from 10:00 to noon. Peterson Reporting Video Litigation 38 MR. PEARL: Okay. THE COURT: So I have two hours, but Obviously MR. PEARL: I'll try to be brief. THE COURT: Okay. MR. PEARL: In terms of Mr. Briggs and Mr. Sherman's rates, I would just suggest that a rate that was set two years ago in another case is not really necessarily reasonable for this case. THE COURT: No. No. And I was clear in saying that I didn't base it on that. It was just an observation that, Mr. Briggs, have you ever I think I asked this before up to now, have you ever gotten more than 550? MR. BRIGGS: No, Your Honor. THE COURT: Mr. Sherman, you haven?t either. So even though you're talking about two years ago, I can talk about yesterday, and it's the same figure. MR. PEARL: No. But in the legal marketplace, lawyers increase their rates from year to year often because they have higher experience, because they've obtained more success, they've become more expert in a subject matter, and the case law says that we should use -the rate that?s current now. Peterson Reporting Video Litigation 39 So_a 550 rate, what was reasonable in 2013, is not necessarily what's reasonable THE COURT: Well, maybe it was excessive in 2013. I'm not sure I would have awarded 550 two years agothink right now 550 is reasonable. And I think it's high, quite frankly. And there's support in the record to go lower, and of course, there's support in the record to go much higher. MR. PEARL: Right. THE COURT: I think 550 is a reasonable figure, and I'm not going to add a multiplier to that. I'm not going to apply a multiplier. MR. PEARL: All right. I won't belabor the point. - One more point on the Westlaw research. There is a case that says it's compensable ?e California Court of Appeals case that says it's compensable as part of an attorneys' fee award. It's the Plumbers and Pipe Fitters case.- THE COURT: Does it say it can be cempensable, or it is? MR. PEARL: You know, it affirmed an award for it, I_believe. I can't recall whether THE COURT: Okay. So what it's saying that is the Court would ?w didn't abuse its discretion by Peterson Reporting Video Litigation 1 40 including it, but wasn't required to do it. I look at Westlaw as built into the attorney's hourly rate. I mean, you wouldn't bill separately the rental value of the books in your office that you refer to. So, to pars out what this computer by the way, when you do Westlaw, don't you just pay a set fee and have the service for year round? MR. BRIGGS: Not always. It depends on the clients that we set up and what information we need. THE COURT: 'So you don't have Westlaw as a feature of your practice, and-then you can use it unlimited? You get charged every time you use Westlaw? MR. BRIGGS: Yeah. I don't have I have certain narrow things that are unlimited, Your Honor, and then, when we go beyond it, like in this case, because we're looking at federal voting issues and stuff .like that, I end up paying for that. THE COURT: Okay. Okay. MR. PEARL: And just a final point on this motion itself, Your Honor. I realize, in retrospect, the City did not do what we expected them to do on the amount of fees. And I firmly expected, given the amount at stake, that they would hire an auditor or some other type of outside expert. And we anticipated we tried to structure the opening memorandum that way. The Peterson Reporting Video Litigation 41 stakes here were this is not a routine attorneys' fee application for defendants' attorneys. It's a very high stakes and a very large number of hours that they put into this case, and there are traps for the unwary that they wanted to be sure they didn't fall into. THE COURT: Again, I can't fault them for hiring a national expert on this, I'm just saying that that is going to be on their own dime and not the City's_ dime. Okay? I think 50 hours would have been reasonable. If you had to prepare a monster reply brief responding to, you know, hundreds of attacks on individual entries, I would get that, but that didn't happen here. On the other hand, we MR. PEARL: Well, yeah. didn't know that when we did the opening memorandum and so on, but I'll accept your f? THE COURT: I mean, you did two declarations alone with 50 pages. That exceeded the length of the opening brief on either side. Right? It was like 43 pages or something? There's something wrong when the attorneys' fees motion is more extensive than the briefing on the underlying appellate issue that resulted in a published It's almost akin, not the same, as a tail opinion. wagging the dog.' Petersdn Reporting Video Litigation 42 MR. PEARL: Well, I?ve heard that before, Your Honor, and I would tend to agree, looking at it from the outside, it looks that way, but my experience is no matter how much information the fee claimants put in, the other side will always say it's never enough. You should add this and you should add that and you shouldn't have billed your time in this way. And so, in my declaration, 90 percent of it is boilerplate from other cases. I didn't spend THE COURT: Yeah. I gathered that, as well. MR. PEARL: hundreds of tens of hours. THE COURT: On surveys. MR. PEARL: Right. Right. THE COURT: Okay. Okay. MR. PEARL: All right. Thank you, Your Honor. THE COURT: All right. IYou're welcome. Anything further? MR. PHELPS: Just, Your Honor, briefly, in reference as far as the reasonable hourly rate, and I think that the declarations that the City put in of Mr. Colintano[phonetic], who is arguably and it's really not really arguable that he's the top THE COURT: Yeah. But your hourly rate for Orrick was more because you have guys paid Orrick 550, but it was a blended rate. So you were actually paying Peterson Reporting Video Litigation 43 associates and I think there's Mr. Briggs has analyzed it. It looks like you were even billing paralegals at 550. So, when you take out that blending and you try to reconstruct what it was, Orrick was probably charging the City or $900 an hour. MR. PHELPS: Well, I think that's a quite different where there's a capped rate.- The City isn't on the hook for excessive billing at 800 or 550. We capped it so we know exactly how that can go. It's different than just awarding 550 or 650 or whatever the number is. THE COURT: Whether there's a cap or not, you. can well, but did they exceeded the cap, right? And they got paid, I understand, from looking at the evidence? They were paid for everything they did? MR. PHELPS: The City did ultimately pay Orrick that work. THE COURT: And the cap was $400,000, right? MR. PHELPS: Correct, Your Honor. THE COURT: So they went over the 400? and still got it, right? MR. PHELPS: The City followed through on its bills, correct, Your Honor. THE COURT: Okay. So they got paid, Peterson Reporting Video Litigation 44 effectively, a higher rate than the other side, which you're saying is over paid. That's not a very I persuasive argument. MR. PHELPS: I think, looking at attorneys' fees issues, Your Honor, it's just comparable attorneys for comparable cases. We try to put the top expert out there to show what was a comparable rate.- Mr. Colintano is charging 475. I THE COURT: Well, why are you paying Orrick over 550? Because that's you paid them well over 550, when you take out the blending. I So you have a declaration from your experts saying the reasonable rate would have been 475 or whatever, but then, are you saying that you guys were unreasonable in hiring Orrick because you paid more than what you're now saying is reasonable? MR. PHELPS: I'm saying what work was done with the formation, things like that. There was a cap on those.' THE COURT: No. But we're talking about litigation. From litigation_they were 550 and blended, right? - MR. PHELPS: Right. Correct. THE COURT: See, what I've just done to this firm that you say I'm over compensating is giving their Peterson Reporting Video Litigation 45 lead partners 550, aSsociates 225, and law clerks and paralegals llO. If you blend that out, they're going to get less than 550. I In other words, you paid your own attorneys' fees more than what I'm awarding these attorneys' fees. MR. PHELPS: I understand what you're saying, Your Honor. I only mean the cap was just a risk reducer for the City. THE COURT: Well, it didn't-reduce the risk once the City paid its excess. What good was the cap? A cap is nice if it's followed, but if the cap is unscrewed, it provides no caping feature. Okay. All right. So anything so we need to come back here, I think, next_week. You guys need to iron out w? I have basically, given you the formula. So do you want to have a hearing next week where you present it? I mean, I've got to ultimately give a final order, so I need this data myself. MR. PEARL: Could we submit a proposed order and then have that be the subject of a hearing, if we disagree over it? THE COURT: Okay. Was there any question about my formula, though? MR. PHELPS: I don't think there was. THE COURT: I think it was pretty simple. I Peterson Reporting Video Litigation 46 haven't done the math, quite frankly. I don't know. MR. BRIGGS: We'll just do the math and check it with a spreadsheet. If there's no agreement, let us come back in 30 days or something, but I'm sure we can work with Mr. Phelps. THE COURT: Well, I'm going to hold off on my written ruling until I get the spreadsheet out. Just come back in MR. BRIGGS: That's fine. in thirty days or something. THE COURT: Set a date, then. Do you want to em MR. BRIGGS: Might as well do that. Sure. MR. PEARL: Might as well. I THE COURT: All right. So June 26? MR. BRIGGS: Can we push it into the can we push it to July 10? I'm gone the last Friday in June. THE COURT: All right. MR. BRIGGS: We can make it the Friday before that? MR. PEARL: I cannot. THE COURT: July l0. Now, understand, though, this attorneys'.fees thing I put in the box, that box is closed. MR. BRIGGS: I understand. THE COURT: So all this additional stuff, if Peterson Reporting Video Litigation 47 there's any squabbling over the fees, that's not going to increase it. We're m? this is set in cement as of today. MR. BRIGGS: HWhat's in the box we're going to sort out, the three people here at defense. THE COURT: Yeah. But 50 hours is what's in that box. MR. PEARL: At 550 an hour. THE COURT: Right. 550 an hour. MR. PEARL: Okay. MR. BRIGGS: July 10 at 9:00 or 10:00? THE COURT: You know, let's set it at 9:00. Yeah. And it may be very quick. Mr. Pearl, I'm not even sure you need to show up because we're_no longer litigating, you know, the propriety. The Court has made its ruling. It's just doing the math in compliance with the formula that I've set forth. MR. PEARL: I strongly doubt I will, but just in case, I want to, if there's some reason I need to be because we can't reach agreement or whatever, then I wanted to be sure that I'm available that day. MR. BRIGGS: And the Court is okay that, if we submit a_proposed order approved as a form, we'll just vacate that date? Peterson Reporting Video Litigation 48 THE COURT: Yeah. The Court would love that. MR. BRIGGS: Thank you, Your Honor. MR. PEARL: Thank you, Your Honor. THE COURT: Oh. There was a some evidentiary rulings. Did you guys want that for the record? MR. PHELPS: Sure, your Honor. THE COURT: Okay. Exhibits 1 through 10 for the City's request for judicial notice, I've granted all of those. And, as to the City's objections to King's deposition, the various provisions in there, I have overruled all of them. It just seems that you're let me it kind it goes to the weight. As to the objections to Mr. Briggs' declaration, and I have sustained have overruled 3. And my thought on that is largely the stuff was irrelevant because, since I determined that, if there was fraud here, it was intrinsic fraud that so it really didn't matter whether the City waived or not. The fact of the matter is, its statute of limitations wasn't asserted timely. So it's really irrelevant what was said to Spitzer, and what Spitzer's response was. None of that made a difference. So that's why I largely overruled those. Okay? Peterson Reporting Video Litigation 49 MR. BRIGGS: Thank you, Your Honor. THE COURT: All right. You're welcome. ir'k'k (Whereupon the proceeding was adjourned at 10:15 50 CERTIFICATE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, I, Keren M. Guevara, Certified Shorthand Reporter licensed in the State of California, License No. 12478, hereby certify that the foregoing was reported by me and was thereafter transcribed with Computer?Aided Transcription; that the foregoing is a 'full, complete, and true record of said proceeding. I further certify that I am not of counsel or attorney for either or any of the parties in the foregoing proceeding and caption named or in any way interested in the outcome of the cause in said caption. In witness whereof, I have hereunto set my hand this day: KEREN M. GUEVARA, CSR Peterson Reporting Video Litigation 52 A ability 12:1 able 12:20 15:10 absolutely 31:1 abuse 40:25 accept 42:16 accepted 27:15 accepting 18:4 account 29:1,15 act 9:8 15:21 action 3:22 actions 1:13 14:17 16:12 33:5,11 activity 11:14 12:23 17:14 add 18:4 24:8 32:23 40:11 43:6,6 added 32:25 addition 8:12 23:21 additional 47 :25 address 13:3 17:17 17:24 25:2 26:2 30:18 34:13 addressed 12:10 addressing 11:16 14:22 adjourned 50:4 adjudication 3:12 4:15 administrative 32:16 advise 11:1 advised 10:20,22 advising 13 :4 af?rmed 5:6 40:22 agent 16:16 ago 4:12 22:23 39:8 39:18 40:5 agree 24:4,15 28:6 43:2 agreed 4:24 agreement 47:3 48:21 ahead 26:] akin 42:24 al 1:4 allegations 14:15 alleged 13:14 allow24:2 amount 11:12 12:5 18:15 36:18 41:22 41:22 analysis 16:17 analyzed 44:2. answer 2:10 5:16,21 7:11 8:20 9:1 11:1713:1815:19 answered 9: 15 answering 10:6 anticipated 41 :24 anticipating 6:1 anybody 17:20 30:6 34: 16 Anytime 28 :17 anyway 38: 16 apologize 37: 19 - appeal3:10 5:6 28:16 34:3 35:3,11,14 36:12,25 37:22 38:20 appeals 4:5 40:17 appear 5:2 appearance 31:17 appearances 1:18 2:1 1:12 appellants 36:25 appellate 3:10 32:9 34:1,7,21,23 35:8 36:2,18 37:1 38:17,19 42:23 application 16:18 42:2 apply 13:21 14:7,8 14:10 22:6 24:11 26:11,12 40:12 apportioned 23:25 24:4 appreciate 19:13 approach 7:15 approval 18:9 approved 48:24 approximately 31:21 April 15:17 21:10 area 5:25 20:10 arguable 43:22 arguably 7:22 43:21 argument 5:19,23 5:2410:5 22:5 27:21 28:5 45:3 arguments 23:10 35:2 arithmetic 19:16 aside 4:7 11:8,] 1 asked 26:11 39:13 asking 5:1617:12 26:15 27:18 assert 10:9,12 asserted 3:3,8 7:68 7:9 49:22 assigned 25:9 assignment 25:11 assist 32:15 associate 23:18 associated 1:25 associates 44:1 46:1 Association?s 12:23 assume 5:19 assumed 35:14 attack 4:2 9:120:16 21:16 attacked 4:6,10 20:18 attacks 42:12 attempts 13:21,24 attorney 1:18 1:14 14:8,10,1128:14 31:9 51:13 attorneys 2:8 7: 13 7:16 8:5,7,l3,23 8:24,25 9:6,7,10 9:18,2310:12 11:12,22,23 12:5 12:10,11 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