Fine Builders LLC v. Munoz

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-
UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
In re
FINE BUILDERS, LLC,
Debtor.
FINE BUILDERS, LLC,
Plaintiff,
vs.
CHRISTINA MUNOZ,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 04-31648 TEC
Chapter 11
Adv. Proc. No. 04-3159 TC
MEMORANDUM RE ATTORNEY FEES INCURRED
IN ENFORCEMENT OF SETTLEMENT AGREEMENT
Plaintiff seeks to compel Defendant to pays fees and costs
totaling $11,451.62 incurred in enforcement of the settlement
agreement. 	Upon due consideration, and for the reasons stated
below, the court determines that Defendant is liable for
Plaintiff’s reasonable attorney fees in the sum of $9,200.
FACTS
The settlement agreement, which the parties first memorialized
orally on the record on December 14, 2004, required Plaintiff to
Signed and Filed: September 04, 2008
________________________________________
THOMAS E. CARLSON
U.S. Bankruptcy Judge
________________________________________
Entered on Docket
September 05, 2008
GLORIA L. FRANKLIN, CLERK
U.S BANKRUPTCY COURT
NORTHERN DISTRICT OF CALIFORNIA
Case: 04-03159 Doc# 62 Filed: 09/04/08 Entered: 09/05/08 10:46:14 Page 1 of 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
transfer $192,500 to a trust to be established for the health,
education, and benefit of Plaintiff’s daughter Morgan. 	The
settlement agreement includes an attorney fee clause, providing
that the prevailing party can recover fees in any motion brought to
enforce the settlement agreement.
In September 2006, Plaintiff retained attorney Peter W.
Clerides to represent him in enforcing the settlement agreement,
due to Defendant’s alleged failure to place the settlement monies
in trust. 	On April 24, 2007, Plaintiff filed a motion to enforce
the settlement agreement.
On December 14, 2007, the court held its first of several
contested hearings on the enforcement motion. 	Defendant conceded
that she had never funded a trust as was required by the
settlement, but alleged that Mr. Myers waived the trust requirement
on condition that the funds remain in a checking account and be
applied solely for the specified purposes. 	At the hearing, the
court ordered Plaintiff to file an accounting regarding how the
settlement funds had been spent.
On January 15, 2008, Defendant filed an initial accounting.
Plaintiff opposed the accounting, contending inter alia that it
lacked supporting documentation, such as canceled checks.
Plaintiff’s accountant filed a declaration in support of the
opposition, contending that the settlement monies had been
commingled and possibly misapplied. 	Based on this opposition, the
court entered an order requiring Defendant to provide additional
documentation.
By April 2008, the sole remaining dispute between the parties
regarding the settlement monies concerned two $16,000 payments
allegedly made by Defendant to Santa Clara University. 	The court
Case: 04-03159 Doc# 62 Filed: 09/04/08 Entered: 09/05/08 10:46:14 Page 2 of 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-3-
held continued hearings regarding these unaccounted-for payments
and re Mr. Clerides’ request for Defendant to execute the written
settlement agreement.
On May 23, 2008, the court determined that all of the
settlement monies had been accounted for, and that Defendant was
responsible for Plaintiff’s reasonable attorney fees in enforcing
the settlement agreement.
On May 27, 2008, counsel for Plaintiff mailed a letter to
counsel for Defendant, enclosing his billing statements and
requesting that Defendant pay $11,276.62 incurred by Plaintiff to
enforce the settlement agreement. 	The billing statements show that
between May 14, 2006 and May 23, 2008, Mr. Clerides billed
Plaintiff for 44.8 hours on the matter entitled “Christina” at a
rate of $250 per hour.
On May 30, 2008, Defendant mailed a letter to Plaintiff
offering to pay fees totaling $2,075, representing the time
Plaintiff spent to review the accounting filed by Defendant in
January 2008, to review Defendant’s supplemental declaration, and
to attend four hearings. 	Defendant objected to payment of any
other fees, contending that: (1) the fees claimed include
substantial time for unrelated matters; (2) certain time records
are vague; and (3) the court did not grant the relief requested by
Plaintiff in the motion (setting aside the settlement agreement and
return of all funds).
On June 26, 2008, Plaintiff filed a declaration of counsel
(Declaration). 	The Declaration renews Plaintiff’s application for
attorney fees and requests reimbursement of fees totaling
$11,276.62, plus $175 for drafting the May 27, 2008 letter and for
drafting the Declaration.
Case: 04-03159 Doc# 62 Filed: 09/04/08 Entered: 09/05/08 10:46:14 Page 3 of 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
The Declaration does not dispute that the time records include
matters unrelated to enforcement of the settlement agreement.
DISCUSSION
I have read the time records submitted by Plaintiff and
Defendant’s letter response thereto. 	I determine that even after
Plaintiff’s waiver of the creation of a formal trust, Defendant was
obligated under the settlement agreement to provide an appropriate
accounting, that Defendant did not do so before the filing of the
enforcement motion, that Plaintiff prevailed in the enforcement
motion, and that the enforcement motion was within the scope of the
fee clause in the settlement agreement. 	I further determine that
Plaintiff’s hourly rate is reasonable, and that given the extent
and nature of the enforcement proceedings, Defendant is responsible
for paying all fees charged in the invoices attached as Exhibit A
to the Declaration, except as follows: (1) fees charged prior to
Plaintiff’s retention of Mr. Clerides in September 2006; (2) fees
charged solely for communications between Mr. Clerides and
Plaintiff’s former employee, Joseph Freedom; (3) fees charged
solely for communications between Mr. Clerides and Plaintiff’s
former counsel John Christian; and (4) fees charged for services
not obviously related to enforcement of the settlement agreement.
Of the 44.8 hours billed by Mr. Clerides between May 2006 and May
23, 2008, 8.7 hours fall into the excepted categories. 	Thus,
Plaintiff is entitled to recover fees for 36.1 hours ($9,025) spent
on the enforcement motion. 	In addition, Plaintiff is entitled to
recover $175 for .8 hours spent by his counsel for drafting the May
letter and the Declaration.
**END OF MEMORANDUM**
Case: 04-03159 Doc# 62 Filed: 09/04/08 Entered: 09/05/08 10:46:14 Page 4 of 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
Court Service List
Peter W. Clerides, Esq.
Law Offices of Peter W. Clerides
700 Montgomery Street, 3rd Floor
San Francisco, CA 94111
Darin T. Judd, Esq.
Lippenberger, Thompson, Welch,
Soroko & Gilbert LLP
201 Tamal Vista Boulevard
Corte Madera, CA 94925
Case: 04-03159 Doc# 62 Filed: 09/04/08 Entered: 09/05/08 10:46:14 Page 5 of 5