Beruflich Dokumente
Kultur Dokumente
, SBN 070880
1 THE BUSINESS LEGAL GROUP
225 South Lake Avenue, Suite 300
2 Pasadena, CA 91101
Tel: (626) 432-7229
3 Fax: (213) 403-5962
Email: rfrandsen@businesslegalgroup.com
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Attorney for Defendant John Joslyn
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9 CITY NATIONAL BANK
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Plaintiff,
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v.
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JOHN JOSLYN
Defendants.
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In DisputeSuite.com, the parties entered into a license agreement that contained a forum
The facts in the present matter before Department 72 are fundamentally different than the
13 facts in DisputeSuite.com. Defendant Joslyn filed a motion to quash service of summons. Judge
14 Kwan granted the motion to quash. That ended the matter. The Court did not stay the proceeding
15 to allow Plaintiff to refile in any other state, and thus the case did not continue.
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The case that is fully on point with the present case with virtually identical facts is Profit
17 Concepts Management, Inc. v. Griffith (2008) 162 Cal.App.4th 950. In Profit Concepts
18 Management, the Court of Appeal stated,
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The only claims before the trial court were contained in Profit Conceptss
complaint, which sought compensatory and punitive damages in an amount to be
determined, as well as preliminary and permanent injunctive relief. The case in California
has been finally resolved. What was awarded on Profit Conceptss complaint? Zero.
Thus, the contract claim was finally resolved within the meaning of Hsu v. Abbara, and
that case does not use the term merits. [] The determination of which party is the
prevailing party must be made without consideration of whether the plaintiff may refile the
action after a motion to quash service is granted. The issue of final resolution should not
depend on the plaintiff's possible future conduct. Prevailing party attorney fees should be
awarded based on the contract language, the statutory language, and the fact of dismissal
of the case, not on speculation. [Emphasis added.] (Profit Concepts Management, 162
Cal.App.4th at 956.)
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The Superior Court in Profits Concepts did not issue a stay for the purposes of allowing
2 the plaintiff to refile in another state. When the Superior Court issued the order granting the
3 motion to quash, that was the end of the matter. The defendant prevailed. Thus, the defendant was
4 entitled to attorneys fees under Civil Code section 1717.
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Plaintiff City National Bank also relies on Estate of Drummond, 149 Cal. App.4th 46
6 (2007). This case is inapposite. In Estate of Drummond, the plaintiff initially filed in the probate
7 department. The probate department ordered the case dismissed for refiling in the proper
8 department. The case remained in the Superior Court. Thus there was no final resolution of the
9 case. In contrast, in the present matter before Department 72, the case is over. Plaintiff City
10 National Bank cannot refile in Superior Court. Accordingly, there is a final resolution in favor of
11 Defendant Joslyn.
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The Supreme Court case Hsu v. Abbara, 9 Cal.4th 863 (1995), supports Defendant Joslyns
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position. When a matter is finally decided in California, the Superior Court does not have
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discretion not to award attorneys fees under Civil Code section 1717.
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In this case pending before Judge Kwan in Department 72, Defendant Joslyn is the
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22 prevailing party. Plaintiff brought a contract action. Defendant Joslyn defeated it. the case has
23 been dismissed because of a lack of jurisdiction. Plaintiff City National Bank has taken nothing
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and the Defendant has paid nothing. Thus the Defendant prevailed. Plaintiff City National Bank
has not filed a suit in Tennessee. The Plaintiff has simply stated an intention to do so. Such
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intentions have no legal effect. Even if the Plaintiff had filed an action in Tennessee, the result
2 should be the same. The Court did not issue any stay in this case so that the case could be
3 continued in another forum. The Court granted the motion to quash service of summons and the
4 case then ended. Thus Defendant Joslyn is the prevailing party and should be awarded attorneys
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fees.
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9 description of attorneys fees contains block billing. The Court can easily determine by reading
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the summary of services rendered that the fees are not excessive. Furthermore there is no block
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billing. The services on each day are clearly delineated from the services rendered on every other
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day. The Court can easily determine whether the time spent on the matters described is
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It is not unjust to award attorneys fees. Plaintiff City National Bank has the resources to
hire the best attorneys in the state. Plaintiff City National Bank made a purposeful decision to
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sue in Los Angeles County when Plaintiff City National Bank knew that Defendant Joslyn lived in
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Tennessee. Plaintiff City National Bank could have avoided this entire proceeding by suing in
20 another state. Plaintiff City National Bank nevertheless chose to sue in Los Angeles County and
21 unjustly forced Defendant Joslyn to incur attorneys fees to quash the service of summons.
22 Plaintiff City National Bank cynically made the choice to sue in Los Angeles County, and it is not
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CONCLUSION
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For the reasons stated above, Mr. Joslyn respectfully requests that the Court award
2 expenses, costs and fees in the total amount of $26,711.00 with interest at 10% per annum from
3 the date of the Judgment, until paid.
4 Dated: May 27, 2015
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By _____________________________________
9 Russell M. Frandsen, Esq.
Attorney for Defendant John Joslyn
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PROOF OF SERVICE
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STATE OF CALIFORNIA
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I practice law in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action. My business address is 225 South Lake Avenue, Suite 300,
6 Pasadena, CA 91101. On the execution date below, I served the following document described as:
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_____________________
Russell M. Frandsen
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