Pemstein v. Pemstein

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
UNITED STATES BANKRUPTCY COURT
CENTRAL DISTRICT OF CALIFORNIA
LOS ANGELES DIVISION
In re
MARTIN PEMSTEIN and DIANA
PEMSTEIN,
Debtors.
Case No. 2:12-bk-15900-RK
Chapter 11
Adv. No. 2:12-ap-02467-RK
MARTIN PEMSTEIN,
Plaintiff,
vs.
HAROLD PEMSTEIN,
Defendant.
SEPARATE STATEMENT OF DECISION
GRANTING DEFENDANT’S MOTION
FOR ATTORNEYS’ FEES AND COSTS
Defendant Harold Pemstein has moved for an award of attorneys’ fees and costs
against plaintiff Martin Pemstein pursuant to California Code of Civil Procedure, §§ 1021,
1032, 1033.5 and California Civil Code, § 1717.
Having considered the moving and opposing papers and the other papers and
pleadings in this case, and having heard the oral arguments of the parties at the hearing
on the motion on August 6, 2013, the court concludes that the motion should be granted.
Plaintiff filed this adversary proceeding for breach of contract, contempt of court
and declaratory relief against defendant based on a stipulation between them and an
FILED & ENTERED
AUG 09 2013
CLERK U.S. BANKRUPTCY COURT
Central District of California
BY DEPUTY CLERK	gae
Case 2:12-ap-02467-RK Doc 69 Filed 08/09/13 Entered 08/09/13 08:49:57 Desc
Main Document Page 1 of 5

2
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
order of the court in the jointly administered cases of In re The Pemma Corp., and In re
HMS Holding Co., Nos. SA 05-50043 JR Chapter 11 and SA 05-50044 JR Chapter 11
(Bankr. C.D. Cal.). Copies of the stipulation and order were attached by plaintiff to his
complaint as Exhibit A. Order Approving: (A) Stipulation to Distribute (Partition) Estate’s
Interest in Certain Real Properties, to Assign Leases and to Approve Procedures for
Dismissal of Case; (B) Stipulation to (1) Terminate Purported Leases between HMS
Holding Company and Pemma Corporation; and (2) Enter into New Leases; (C)
Procedures for Dismissal of HMS Case; and (D) Payment of Commission to Trustee for
Distribution of HMS Estate Assets, In re The Pemma Corp., and In re HMS Holding Co.,
Nos. SA 05-50043 JR Chapter 11 and SA 05-50044 JR Chapter 11 (Bankr. C.D. Cal.,
order entered on October 27, 2006); Stipulation to (1) Terminate Purported Leases
between HMS Holding Company and Pemma Corporation; and (2) Enter into New
Leases, In re The Pemma Corp., and In re HMS Holding Co., Nos. SA 05-50043 JR
Chapter 11 and SA 05-50044 JR Chapter 11 (Bankr. C.D. Cal., filed on October 26,
2006).
It is apparent from plaintiff’s complaint filed in this adversary proceeding that the
subject contract was the stipulation to terminate leases and enter into new leases
attached to the complaint. That is, plaintiff was suing defendant for breach of contract
based on this stipulation, or contract, in this adversary proceeding.
Paragraph 15 of this stipulation, or contract, provided for awarding reasonable
attorneys’ fees and costs to the prevailing party in an action brought under the stipulation
by one party to the stipulation against another party.
The court determines that defendant may properly rely upon paragraph 15 of the
stipulation for an award of reasonable attorneys’ fees and costs against plaintiff. Plaintiff
brought an action on the stipulation, or contract, against defendant, and defendant is the
prevailing party, having succeeded on his motion to dismiss plaintiff’s adversary
complaint and proceeding on grounds of claim and issue preclusion and judicial estoppel,
which the court granted by previous order.
Case 2:12-ap-02467-RK Doc 69 Filed 08/09/13 Entered 08/09/13 08:49:57 Desc
Main Document Page 2 of 5

3
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
Because the parties are California parties, the stipulation, or contract, was made in
California, and entered into in litigation pending in California, though there is no express
choice of law provision in the contract, the court determines that California law is
applicable to the stipulation, or contract, specifically, California Code of Civil Procedure,
§§ 1021, 1032, 1033.5 and California Civil Code, § 1717. These provisions govern an
award of reasonable attorneys’ fees and costs under the express terms of the stipulation,
or contract, between the parties here, providing for such award to the prevailing party in
an action under the stipulation, or contract. The court further determines that under the
express terms of the stipulation, or contract, and under applicable California law,
defendant is entitled to an award of reasonable attorneys’ fees and costs in having to
litigate this matter.
Plaintiff’s argument in opposition to the motion that such an award with the court’s
determination that he should have enforced the court’s order approving the stipulation, or
contract, in contempt proceedings in the bankruptcy case in which the stipulation and
order were entered is immaterial to the motion in this adversary proceeding in this
bankruptcy case, and therefore, the court rejects this argument. Defendant had incurred
attorneys’ fees and costs in this proceeding in this bankruptcy case, and because he
prevailed, he is entitled to reasonable attorneys’ fees and costs incurred here.
The court has reviewed the substantiation of the attorneys’ fees and costs incurred
by defendant in this adversary proceeding based on the declaration of his counsel,
Christopher L. Blank, with detailed and specific billing entries for the services rendered by
counsel and the costs incurred by defendant. Based on this careful review of this
substantiation as well as review of counsel’s additional work in reviewing and responding
to plaintiff’s opposition to the motion and appearing at the hearing, the court determines
that the claimed attorneys’ fees and costs of $18,273.10, including $15,400.00 for 30.8
hours at $500.00 per hour of actual work performed by counsel, plus $2,500.00 for 5.0
hours at $500.00 per hour of work anticipated for reviewing and responding to plaintiff’s
opposition to the motion and appearing at the hearing on the motion, and $373.10 in
Case 2:12-ap-02467-RK Doc 69 Filed 08/09/13 Entered 08/09/13 08:49:57 Desc
Main Document Page 3 of 5

4
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
costs, are reasonable. The court determines that the estimate of 5.0 hours for reviewing
and responding to plaintiff’s opposition to the motion and appearing at the hearing on the
motion to be reasonable and conservative based on the court’s review of the papers in
response to plaintiff’s opposition to the motion and the related motion for sanctions and
the court’s hearing argument at the hearing on August 6, 2013 (which not only includes
the actual time of argument and waiting for the matter to be called as well as travel time
for counsel from his office to court and back).
A separate order granting the motion is being filed concurrently herewith.
IT IS SO ORDERED.
###
Date: August 9, 2013
Case 2:12-ap-02467-RK Doc 69 Filed 08/09/13 Entered 08/09/13 08:49:57 Desc
Main Document Page 4 of 5

This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of
California
January 2009 F 9021.1
NOTICE OF ENTERED ORDER AND SERVICE LIST
Notice is given by the court that a judgment or order entitled (specify) SEPARATE STATEMENT OF
DECISION GRANTING DEFENDANT’S MOTION FOR ATTORNEYS’ FEES AND COSTS was entered on
the date indicated as “Entered” on the first page of this judgment or order and will be served in the manner
indicated below:
I. SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (“NEF”) – Pursuant to controlling
General Order(s) and Local Bankruptcy Rule(s), the foregoing document was served on the following
person(s) by the court via NEF and hyperlink to the judgment or order. As of August 8, 2013, the following
person(s) are currently on the Electronic Mail Notice List for this bankruptcy case or adversary proceeding
to receive NEF transmission at the email address(es) indicated below:
Christopher L Blank clblank@pacbell.net
Alan W Forsley awf@fl-lawyers.net, awf@fkllawfirm.com,addy@fl-lawyers.net,lc@fl-lawyers.net,awf@fl-
lawyers.net
United States Trustee (SA) ustpregion16.sa.ecf@usdoj.gov
II. SERVED BY THE COURT VIA U.S. MAIL: A copy of this notice and a true copy of this judgment or
order was sent by U.S. Mail, first class, postage prepaid, to the following person(s) and/or entity(ies) at the
address(es) indicated below:
Debtor:
Martin Pemstein
38 Calle Aragon, Unit F
Laguna Woods, CA 92637
III. TO BE SERVED BY THE LODGING PARTY: Within 72 hours after receipt of a copy of this judgment or
order which bears an “Entered” stamp, the party lodging the judgment or order will serve a complete copy
bearing an “Entered” stamp by U.S. Mail, overnight mail, facsimile transmission or email and file a proof of
service of the entered order on the following person(s) and/or entity(ies) at the address(es), facsimile
transmission number(s) and/or email address(es) indicated below:
Case 2:12-ap-02467-RK Doc 69 Filed 08/09/13 Entered 08/09/13 08:49:57 Desc
Main Document Page 5 of 5