Attorney James F. Holtz
(from Stutz Artiano Shinoff & Holtz website)
James F. Holtz focuses on trial and appellate work in complex business and corporate
litigation. Mr. Holtz has a wide client base ranging from Fortune 500 companies to local
businesses and individuals...
Mr. Holtz has counseled and defended insurance companies and brokers in
He is a frequent lecturer to both industry and legal organizations including San
Diego Defense Lawyers, Risk Insurance Managers Society and the San Diego County Bar
An Adjunct Professor of Law at California Western School of Law, Mr. Holtz ...
* University of Wisconsin, Madison, 1975
* University of San Diego School of Law, J.D., 1980
Insurance, Product Liability, General Tort Litigation, Corporate
San Diego [and Las Vegas]
Bar Admissions Nevada California
Honors/Affiliations San Diego Super Lawyer 2008 and 2009
Member, San Diego Defense Lawyers
Holtz Wins Multiple Arbitrations for National Client
May 13, 2008
Partner James Holtz represents a national pharmacy chain in premises liability and
pharmacist malpractice cases. Over the last year he has obtained defense judgments in 4
of 5 cases litigated under Nevada's mandatory arbitration program. The cases ranged
from claims of false arrest to slip and fall premises liability. In the only case where the
arbitrator gave plaintiff an award, it was one fifth of plaintiff's original demand.
SOURCE: Stutz Artiano Shinoff & Holtz APC
May 02, 2011
Partner James F. Holtz Selected to Southern California Super Lawyers
SAN DIEGO, CA--(Marketwire - May 2, 2011) - The law firm of Stutz Artiano
Shinoff & Holtz APC is proud to announce that founding partner James F. Holtz
has been named to the 2011 Super Lawyers list as one of the top attorneys in
Business Litigation in Southern California. Not more than 5 percent of the
lawyers in the state are selected by Super Lawyers, a Thomson Reuters rating
service that identifies outstanding lawyers based on a stringent multi-phased
process, independent research and peer review of 70 practice areas.
Mr. Holtz has been selected to Super Lawyers every year since 2008 when
Super Lawyers first expanded their rating service nationwide. He has also
been rated AV Preeimenent for the last 15 years (1996-2011) by
Martindale-Hubbell's peer review process in recognition of the highest possible
review rating in Legal Ability and Ethical Standards.
Focused on trial and appellate work in complex business and corporate
litigation since the firm began in 1982, Mr. Holtz represents clients in both
California and Nevada. He is a frequent lecturer before legal and insurance
organizations and an Adjunct Professor at California Western School of Law.
About Stutz Artiano Shinoff & Holtz APC:
Stutz Artiano is a general practice law firm with a significant focus on public
entity representation. Formed in 1982, the firm has 41 attorneys and five
regional offices in San Diego, Temecula, Santa Ana, Los Angeles and Las
Vegas, Nevada. Practice areas include Employment, Municipal Law, Land Use
& Environmental, Real Property, Construction, Education and Native American
Music to His Ears Peer Recognition for Doing What He
Loves Is the Sweet Sound of Success for James F. Holtz
Sep 03, 2012
James F. Holtz, Founding Partner of Stutz Artiano Shinoff & Holtz APC can still
remember the day he learned that he’d been awarded Martindale Hubbell’s AV
Preeminent rating in California, more than fifteen years ago. “This meant that my
peers valued me,” he explains. For Holtz, who’d been with his firm since 1983,
this recognition had a profound impact as an earmark of success. He’d found
something he loved to do – practicing law – and was not only earning a living
doing so, but was also being recognized by his professional colleagues for his
expertise in the field.
However, unlike many peers who wanted to practice law all their lives, Holtz
never set about to become an attorney; instead he found himself attending
graduate school to obtain a degree in English. One look at the job board while in
grad school was all it took for him to shift gears. In his own simple terms, what
made him want to become an attorney was “the prospect of unemployment… as
a Ph.D. in English.” Holtz moved west from Wisconsin and enrolled in law school
Finding His Rhythm
Following graduation, as an associate under the mentorship of Sidney Stutz, a
Harvard Law grad, and winner of the Daniel T. Broderick Award for Civility, Holtz
spent the first 15years of his legal career in coverage analysis and workers’
compensation. The work demanded that Holtz have a thorough understanding
not only of insurance law, but of scientific and medical issues as well. Workers’
compensation suits required Holtz to understand medical records, and he delved
into the studies. From working one-on-one with doctors, to studying the science
of medicine and injuries, Holtz spent years doing his own “mental analysis of how
an injury happens,” he says.
“It was very interesting. I like to try new things, and that’s why being a lawyer is a
great job,” he explains. As a result of these years of dedication to learning the
ins and outs of insurance coverage, Holtz had earned himself recognition in the
field of insurance law as a true expert. In fact, his expertise lent itself to the next
move in Holtz’ career, which was to share what he’d learned with others.
“I decided it might be fun to be a law professor,” Holtz says candidly. With the
same determination that led him to enter law school in the first place, Holtz
earned a position as an Adjunct Professor of Law at California Western School
of Law, where he’s now taught Insurance Law and Litigation for more than a
decade. “I understand how insurers function as well as understanding
coverages of the policy,” he says simply. The ongoing desire to share that
expertise extended beyond the classroom, and he soon published multiple
articles on topical subjects in both legal and trade publications, including the
Pacific Law Journal and the Insurance Journal.
Curiosity Proves Instrumental
For all of his expertise in insurance, Holtz is at root, a man with a curious mind.
Because of that, his working exclusively in insurance law felt limiting, and he
began to branch
out into other fields of business litigation, which coincided with his firm’s move
from insurance defense into full service law. In particular, environmental law
piqued his interest, as he found himself involved in the Duck Pond Landfill
Dispute adjacent to National City’s ‘Mile of Cars.’ “That kind of environmental
cleanup in the dealer’s suit for the City’s breach of contract was very stimulating.
After a month of trial, before closing argument, I was able to put together a
settlement of plaintiff’s claims against the City and establish a fund for
monitoring and maintaining the landfill in perpetuity, with money from insurance
companies who had pollution exclusions.”
This case prompted Holtz to pursue a career which would ultimately result in a
now 30+ year career in trial and appellate work in complex business and
corporate litigation. As a result of his broadening areas of expertise, his clients
grew to include Fortune 500 companies, local businesses and individuals. To
date, he has successfully handled cases involving business and contractual
disputes, real estate and environmental liability, trademark and copyright
infringement, employment discrimination, product liability, personal injury,
medical and pharmacist malpractice and class actions. Moreover, Holtz has tried
wrongful death and catastrophic injury cases, and has a specialized knowledge
of medical and pharmacology issues.
Expertise Sets the Tempo
However, for all of his success in various areas of law, Holtz’s deep-seated and
thorough understanding of insurance policies and coverages makes him unique
as a business litigator. “Most business litigators don’t have a background in
insurance,” he says. This undoubtedly accounts for the large portion of his client
base, which stems from referrals from other respected litigators who call on Holtz
to assist in situations where clients have coverage problems including denial of
“With more than 30 years of experience in the insurance industry, and as an
adjunct professor teaching insurance law and litigation, I know how insurance
companies think, as well as understanding coverages of the policy. As a
consultant and advisor, I can often get a denial of coverage reversed with a
letter or two. For defense work, I believe I am more thorough than most on
scientific and medical issues,” he says.
The thoroughness with which Holtz prepares, advises and consults with clients is
largely rooted in the underlying M.O. of Stutz Artiano Shinoff & Holtz. “Because
the client is putting their trust in you, it is critical to listen and respond to clients,
and put their interests first,” he summarizes. Yet it’s also rooted in Holtz’s natural
predilection toward finding the work fascinating. He sheepishly admits that while
most people would groan at taking, for example, an economist’s deposition, he
finds the work interesting and stimulating. Moreover, he’s found that being able
to work with “doctors, engineers, and software designers” fulfills his many
diverse interests and his natural born love of learning and trying new things.
To The Beat of His Own Drum
Holtz’s inquisitive nature, coupled with his can-do approach to learning, extends
far beyond the law. In fact, it extends to music, which plays no small part in his
life away from the office. He taught himself bass guitar at the age of 40 and
began to pursue success as a musician.
As a member of the six person band Legal Tender, (of which half of the
members are attorneys), Holtz earned a great deal of success in doing what he
loved in his personal life as well. What started as fun grew to be a lucrative side
gig for Holtz and his band members who-with the help of an agent- have played
weddings, company events, and other venues since 1997. He admits to being
surprised and delighted by being paid to do what he loved, and in fact was able
to put one of his three daughters into private school from the money earned as
a working musician.
More recently, culling from a decades old experience wherein he discovered his
love of blues harmonica, he’s begun playing at Hennessey’s Tavern at 4th & G
Streets for The Stoney B. Blues Band Jam on Monday Nights. (Holtz’s unusual
stage name, Mudbone was bestowed upon him by Stoney B. himself)...
|San Diego Education Report
billing rate $350 per hour
< < <
Declaration of Alex Tramontano
Feb. 28, 2013 signed and machine
Feb. 28, 2013 rec'd before noon by
"James F. Holtz, Partner at Stutz
Artiano Shinoff & Holtz, APC, and
counsel for respondent (in propria
persona), is currently engaged in
a three (3) week bifurcated trial
on an unrelated matter,
beginning today February 27,
2013, before the Honorable Judge
Steven R. Denton in Department
C-73 of the San Diego Superior
Court's Central Division."
[Maura Larkins note: There was no
trial or even any hearing on Feb.
27, 2013. There was a trial
scheduled for Feb. 28, 2013, but it
seems that only an ex parte
application was heard on Feb. 28,
2013. A two-day trial took place
on March 4-5, 2013.]
ECOLITE CONCRETE USA INC VS. GS LEVINE INSURANCE
SERVICES INC [IMAGED]
Case Location: San Diego
Case Type: Civil Date Filed: 09/29/2011
Category: CU-PN Professional Negligence
E-RISK SERVICES LLC P
ECOLITE CONCRETE USA INC P
ECOLITE INTERNATIONAL INC
GS LEVINE INSURANCE SERVICES INC P
RISK PLACEMENT SERVICES INC
E-Risk Services LLC
Cross - Defendant
Weismantel, Michael A
Ecolite Concrete USA Inc
Holtz, James F
Ecolite International Inc
Holtz, James F
GS Levine Insurance Services Inc
Defendant, Cross - Defendant, Cross - Complainant
Cumba, Mark T; Pettit, Douglas A
Risk Placement Services Inc; AKA : Lemac Associates
Defendant, Cross - Complainant
Belzer, Aaron; Cicack, Walter J.
Holtz, James F
01/29/2013 Matter decided.
02/08/2013 Minutes finalized for Civil Jury Trial heard 02/08/2013 08:30:00 AM.
01/29/2013 Clerk's Certificate of Service By Mail --Minute Order
02/08/2013 Civil Jury Trial continued pursuant to Court's motion to 02/13/2013 at
09:30AM before Judge Steven R. Denton.
2-13-2013 trial started with motions in limine
02/13/2013 Minutes finalized for Civil Jury Trial heard 02/13/2013 09:30:00 AM.
02/13/2013 2:25 pm Court is adjourned until 02/28/2013 at 09:30AM
in Department 73.
02/22/2013Notice of Lodgment (OF FOREIGN AUTH IN SUPPORT OF GS LEVINES
TRIAL BRIEF ON COVERAGE ISSUES) filed by GS Levine Insurance Services Inc.
02/22/2013Trial Brief (RE COVEAGE ISSUES) filed by GS Levine Insurance
02/22/2013Trial Brief (RE MUTUAL INDEMNITY AGREEMENT) filed by GS Levine
Insurance Services Inc.
02/22/2013 Statement of Decision (PROPOSED RE APP OF THE MUTUAL
INDEMNITY AGREEMENT) filed by GS Levine Insurance Services Inc.
02/22/2013 Statement of Decision (PROPOSED) filed by GS Levine Insurance
02/27/2013 Ex Parte Application - Other and Supporting Documents (for an
order to quash subpoenas duces tecum for production of documents at
trial issued by Defendant GS Levine Insurance Services Inc) filed by RQ
02/28/2013 Minutes finalized for Ex Parte heard 02/28/2013 09:00:00
03/04/2013 Civil Court Trial scheduled for 03/04/2013 at 09:00:00 AM at Central
in C-73 Steven R. Denton.
03/05/2013 Court trial resumed.
03/05/2013 Matter taken under submission.
03/05/2013 Minutes finalized for Civil Court Trial heard 03/05/2013 10:00:00 AM.
March 5, 2013 about 5 p.m. trial finished
02/27/2013 Memorandum of Costs (Summary) (G.S. Levine Insurance Services,
Inc.) filed by GS Levine Insurance Services Inc.\nRefers to: Risk Placement
RQ CONSTRUCTION, INC. v. ECOLITE CONCRETE U.S.A., INC.
RQ CONSTRUCTION, INC., Plaintiff,
ECOLITE CONCRETE U.S.A., INC.; et al., Defendants.
Case No. 09-CV-2728 BEN (WVG).
United States District Court, S.D. California.
September 8, 2010.
ORDER GRANTING MOTION FOR LEAVE TO FILE FIRST AMENDED COMPLAINT
[Docket No. 21]
ROGER T. BENITEZ, District Judge.
This lawsuit arises out of Plaintiff's purchase of shares in Defendant Ecolite
Concrete U.S.A., Inc. ("ECUSA"). ECUSA allegedly holds exclusive rights to market
a patented concrete construction product known as Ecolite.
On December 4, 2009, Plaintiff initiated this action against Defendants,
alleging federal securities violations and related state law claims. Plaintiff
now moves for leave to file an amended complaint that adds allegations
relating to the fraud claims; Plaintiff does not seek to add parties or add causes
of action. (Docket No. 21.) Plaintiff's motion was filed by the deadline in the
scheduling order and, therefore, is subject to the standard set forth in Federal Rule
of Civil Procedure 15(a). See AmerisourceBergen Corp. v. Dialysist West, Inc., 465
F.3d 946, 952 (9th Cir. 2006) ("a motion for leave to amend within the deadline set
by the district court . . . is subject to the limited constraints placed on motions for
leave to amend under Rule 15(a)"). Defendants filed a conditional opposition to
Plaintiff's motion, stating Defendants do not oppose the motion as long as Plaintiff
is required to amend its initial Rule 26(a)(1) disclosures to account for the new
Amendment under Rule 15(a) should be "freely give[n] . . . when justice so
requires." Fed. R. Civ. Proc. 15(a)(2). "This policy is `to be applied with extreme
liberality.'" Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir.
2003) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th
Cir. 2001)). Courts consider "undue delay, bad faith, dilatory motive, undue
prejudice to the opposing party, and futility of the proposed amendment" in
deciding whether justice requires granting leave to amend under Rule 15. Moore v.
Kayport Package Express, Inc., 885 F.2d 531, 538 (9th Cir. 1989).
Here, Plaintiff's proposed amendments do not add claims or parties, but rather add
allegations of misrepresentation to existing fraud claims. Discovery is still in its early
stages and, in fact, is not required to be completed until January 14, 2011.
Additionally, no trial date or pretrial conference has been scheduled. Accordingly,
the Court finds Defendants have sufficient time to address the new allegations and
there is no evidence of undue delay, dilatory motive, or undue prejudice. There is
also no evidence in the record showing the proposed amendments are made in
bad faith or would be futile. Defendants argue the new allegations change the
damage calculations. Even if true, however, there is sufficient time for discovery to
assess these changes. Defendants also contend that any leave to amend should
be conditioned on Plaintiff amending its initial Rule 26(a)(1) disclosures. On reply,
however, Plaintiff agrees to amend its Rule 26(a)(1) disclosures to account for the
Accordingly, the Court finds justice requires granting Plaintiff leave to amend under
Rule 15. Plaintiff may file a first amended complaint in substantially the same form
as that attached to its motion, on or before September 20, 2010. Additionally,
Plaintiff must serve on Defendants its amended Rule 26(a)(1) disclosures no later
than September 30, 2010.
IT IS SO ORDERED.
RQ CONSTRUCTION, INC. v. ECOLITE CONCRETE U.S.A.,
RQ CONSTRUCTION, INC., Plaintiff,
ECOLITE CONCRETE U.S.A., INC., et al., Defendants.
Case No. 09-CV-2728 BEN (WVG).
United States District Court, S.D. California.
August 19, 2011.
ORDER GRANTING RELIEF FROM CIVIL LOCAL RULE 55.1
[Docket No. 66]
ROGER T. BENITEZ, District Court.
The present action is a dispute over alleged false representations made by
Defendants Ecolite Concrete U.S.A., Inc., Ecolite International, Inc., and Brian Smith
during the course of stock transactions and other business dealings. On June 13,
2011, the Court ordered the Clerk to enter default against Ecolite Concrete U.S.A.,
Inc., and Ecolite International, Inc. ("Defaulting Defendants"). (Docket No. 62.) The
June 13 Order did not apply to Defendant Brian Smith. On June 14, 2011, the Clerk
entered default against the Defaulting Defendants. (Docket No. 63.) Pursuant to
Civil Local Rule 55.1, Plaintiff's deadline for moving for default judgment against
the Defaulting Defendants was July 14, 2011. Plaintiff filed a Motion for Relief from
Civil Local Rule 55.1. (Docket No. 66.)
None of the Defendants oppose the Motion.
Rule 55.1 provides, "If plaintiff(s) fail(s) to move for default judgment within thirty
(30) days of the entry of a default, the clerk will prepare, with notice, an order to
show cause why the complaint against the defaulted party should not be
dismissed." On the other hand, Federal Rule of Civil Procedure 54(b) provides,
"when multiple parties are involved, the court may direct entry of a final judgment
as to one or more, but fewer than all, claims or parties only if the court expressly
determines that there is no just reason for delay." In Frow v. De La Vega, 82 U.S.
552, 554 (1872), the Supreme Court held that where one of several defendants
who is alleged to be jointly liable defaults, judgment should not be entered against
the defaulting defendant until the matter has been adjudicated in regard to all the
defendants. This rule has been extended "to apply to defendants who are similarly
situated, even if not jointly and severally liable." In re First T.D. & Inv., Inc., 253
F.3d 520, 532 (9th Cir. 2001).
In its Motion, Plaintiff notes that "counsel for [Defendant] Mr. Smith has indicated
his intention to object to the entry of a default judgment against the Defaulting
Defendants, because it could result in an inconsistent judgment between Mr. Smith
and the Defaulting Defendants." (Pl. Mot. at 2; Shah Decl. ¶ 2.) Plaintiff believes
that "Defendant Smith's objection has merit because a default judgment against the
Defaulting Defendants and in favor of Mr. Smith at trial is arguably inconsistent."
(Pl. Mot. at 3.) Defendant Smith is the Chairman and CEO of Ecolite International,
Inc., as well as the Chairman of Ecolite Concrete U.S.A., Inc. (Shah Decl. ¶ 3.) The
allegations against Defendant Smith involve his duties as an officer of both Ecolite
International and Ecolite Concrete. (Id.) In addition, five of Plaintiff's nine claims are
alleged against Defendant Smith and at least one of the Defaulting Defendants.
(Id.) A judgment against the Defaulting Defendants and a judgment in favor of
Defendant Smith would be inconsistent.
Accordingly, the Motion is GRANTED. If this action proceeds to trial, the
deadline for moving for default judgment against the Defaulting Defendants will be
the date of trial, and the default prove-up for the Defaulting Defendants will be
heard concurrently with the trial against Defendant Smith. If this action is resolved
before trial, Plaintiff shall move for default judgment against Defaulting Defendants
within 30 days of the resolution of the claims against Defendant Smith.
IT IS SO ORDERED.
Rq Construction, Inc v. Ecolite Concrete U.S.A.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Official citation and/or docket number and footnotes (if any) for this case available
December 7, 2012
RQ CONSTRUCTION, INC.,
ECOLITE CONCRETE U.S.A., INC.,
The opinion of the court was delivered by: Cathy Ann Bencivengo United States
ORDER GRANTING DEFENDANT'S MOTION TO RE-TAX COSTS, DENYING
PLAINTIFF'S MOTION FOR ATTORNEYS' FEES, and DENYING DEFENDANT'S
APPLICATION FOR ECOLITE ORDER TO TREAT ATTORNEY'S FEES MOTION
AS TOLLING MOTION AS MOOT [Doc. Nos. 193, 212, 216]
Before the Court are Defendant Smith's Motion to Re-Tax Costs [Doc. No. 193,]
Plaintiff RQ Construction Inc.'s ("RQ") Motion for Attorneys' Fees [Doc. No. 212,]
and Defendant Smith's Application an Order to treat Plaintiff's Motion for Attorney's
Fees as Tolling Motion Under FRCP 58 (e) [Doc. No. 216.] The Court took the first
two matters under submission without oral argument [Doc. Nos. 211, 215.] the
reasons set forth below, Smith's Motion to Re-Tax Costs is GRANTED IN PART,
RQ's Motion for Attorneys' Fees is DENIED, and Smith's tolling motion is DENIED
RQ brought this action against Defendants in December of 2009 for securities
fraud and negligent misrepresentation arising out of a business relationship
between the parties involving Defendants' Ecolite concrete product. In November of
2011, RQ filed the operative Second Amended Complaint, alleging the following
claims: 1) Failure to Register, Title 15 U.S.C. § 77e, l; 2) Negligent
Misrepresentation in a Public Offering, 15 U.S.C. § 77l; 3) Control Person Liability,
15 U.S.C. § 77o; 4) Negligent Misrepresentation (stock); 5) Breach of Contract (Put
Option Agreement); 6) Rescission of Put Option Agreement, Cal. Civ § 1689; 7)
Breach of Contract (warrants); 8) Rescission of Warrants, Cal. Civ. Code § 1689;
9) Negligent Misrepresentation (Capitalization); 10) Negligent, False, or Misleading
Statements, Cal. Corp.Code §§ 25401, 25501; and 11) Sale in Violation of
Qualification Requirements; Cal. Corp. Code § 25110. [Doc. No. 90.] No motions
for summary judgment were filed; however Defendant Smith raised several
potentially dispositive issues in his respective motions in limine. Because several of
the motions the issue of Plaintiff's standing to bring certain claims, which can be
raised at any time, the Court considered the arguments in the interest of managing
the issues for trial. [Doc. No. 158.]
The Court found as a matter of law that Plaintiff lacked standing to raise its First
Cause of Action for Failure to Register pursuant to 15 U.S. C. §§ 77e, and 77 l for
the Defendants' alleged failure to register the sale of stock to the investment entity
Eye See Partners, LLC -- an entity that not a party to this lawsuit-- finding that RQ's
purchases of stock were not "integrated" with the to Eye See Partners. Id. at 2,
citing S.E.C. v. Murphy , 626 F.2d 633, 645 (9th Cir. 1980). The Court accordingly
dismissed the Failure to Register claim prior to trial. Id.
A jury trial commenced on June 18, 2012. During the trial, Smith made an oral
motion to dismiss Plaintiff's Second Cause of Action for Negligent
Misrepresentation in a Public Offering, 15 U.S.C. § 771, because there was no
evidence of a prospectus that was issued in connection with RQ's stock purchases.
Court permitted Plaintiff's counsel to proffer evidence regarding a prospectus
outside the presence of jury, and finding that there was no credible evidence as
such, dismissed Plaintiff's 15 U.S.C. § 771
The trial proceeded until June 27, 2012, whereupon the jury received instructions
as to the negligent misrepresentation claims only. The jury returned a verdict in
favor of the Plaintiff on July 2, 2012, and awarded Plaintiff $4,343,917 in damages
for its investment in the manufacturing business. [Doc. No. 179.] It awarded $0 in
damages for the stock acquisition. Id. Judgment was entered accordingly in favor of
RQ Construction, Inc. and against Brian Smith. [Doc. No. 180.] Default Judgment
was entered against Defendant ECUSA for rescission of the Put Option Agreement
in the amount of $3,000,000 for the Sixth Tenth Causes of Action, and against
Defendants ECUSA and Ecolite International, Inc. in the amount of $4,343,917
based on their respective joint and several liability with Mr. Smith. [Doc. No. 208.]
II. MOTION TO RE-TAX COSTS
Plaintiff submitted a Bill of Costs on July 17, 2102, seeking recovery of $18,934.06
in costs. [Doc. No. 184.] Smith objected to several of the requested items, and on
August 6, 2012 the Clerk of the Court entered an order Taxing Costs against Smith
in the amount of $18,367.56 (reducing the requested amount $566.50 for s for
non-taxable costs). [Doc. No. 192.] Smith timely filed the instant Motion to Re-Tax
Costs pursuant to CivLR 54.1.h. [Doc. No. 193.]
In his motion, Smith challenges RQ's recovery of costs in light of the fact that Smith
prevailed on of RQ's claims against him. Because RQ ultimately prevailed on its
negligent misrepresentation claim, was awarded a jury verdict of $4.3 million, the
Court does find that RQ is entitled to recover some costs; however it should not be
permitted to recover costs for pursuing its non-meritorious securities claims. See
Rule Civ. Proc. 54(b); Assoc. of Mexican-American Educators v. State of California,
231 F.3d 572, 591 (9th Cir. 2000) (District Court has discretion to refuse to award
As RQ did not dispute Smith's assertions that the specific costs he challenged were
spent in pursuit the failed securities claims, the Court finds it appropriate to reduce
the costs award by $7,710.88, and accordingly orders that $10,656.88 be taxed in
favor of RQ.
III. MOTION FOR ATTORNEYS' FEES
RQ moves to recover $933,491 in attorneys' fees pursuant to the attorneys' fees
provision in the parties' Put Option Agreement. The fee request includes RQ's
attorneys' fees incurred in pursuing all of claims through trial. [Doc. No. 212-1 at
18.] As with the costs motion, the Court finds that while RQ may entitled to recover
attorneys' fees for its successful claims, it would be inequitable to award fees
incurred pursuit of RQ's unsuccessful claims. See Anderson v. Melwani, 179F.3d
763, 766 (9th Cir. 1999) (court refuse to enforce a contractual attorney's fees
provision where an award of fees would be "inequitable unreasonable"). Where, as
here, a plaintiff prevails on only one of several claims, the fact that " the plaintiff is
a 'prevailing party' ... may say little about whether the expenditure of counsel's time
was reasonable in relation to the success achieved." Hensley v. Eckerhart, 461
U.S. 424, 436 (1983). See also Traditional Cat Ass'n, Inc. v. Gilbreath, 340 F.3d
829, 832, 833--834 (time spent on unsuccessful or unrelated claims may be
excluded from the lodestar calculation in motion for attorneys' fees); Fine v. Ryan
Airlines, 305 F.3d 746, 756--757 (7th Cir. 2002) (no abuse of discretion to reduce
fees due to unsuccessful claims).
As the fee applicant, RQ bears the initial burden of substantiating the hours worked
and the rate claimed. Hensley, 461 U.S. at 437.*fn1 Specifically, the applicant
"should maintain billing time records in a manner that will enable a reviewing court
to identify distinct claims." Id. To establish the hours worked each attorney at a firm,
as required under the "lodestar" method for calculating attorney fee awards, the
applicant must provide a fully detailed itemization of the date, hours and nature of
the work performed. In re Washington Pub. Power Supply System Secur. Litig. 19
F.3d 1291, 1305--1306 (9th Cir. 1994) (emphasis added). While plaintiff's counsel
need not record in great detail how each minute of his time was expended, at a
minimum he "should identify the general subject matter of his time expenditures."
Primary Residential Mortg., Inc., supra, 614 F3d 1173, 1178 (10th Cir. 2010)
(billing entries must provide district courts with enough information to evaluate
propriety of fee request) (internal quotes omitted).
The Court finds that RQ has not met its burden here. Indeed the billing
records submitted are so heavily redacted that the Court is completely
unable to discern the subject matter of any work performed. A
representative page of the 193 pages of billing records submitted reads as follows:
Notice of Lodgment [Doc. No. 212-3] at Ex. 3, p; 2. Such redactions are wholly
improper and are without justification for privilege, at least to the extent these
redactions were employed. See Avgoustis v. Shinseki, F.3d 1340, 1344--1345(Fed.
Cir. 2011) (absent unusual circumstances, the detailed time records disclosure
requirement does not violate the attorney-client privilege).
While the Court may have been willing to grant RQ's motion as to work done on the
negligent misrepresentation claim, counsel's submission leaves the Court unable to
ascertain whether and how much was spent litigating specific claims, many of which
involved the sale of stock well before RQ was involved with Defendants. The Court
is not persuaded by RQ's argument that the claims were interrelated; the contrary,
based on the volume of pretrial filings and proposed exhibits dedicated go the
unsuccessful securities claims, the Court presumes that a large percentage of the
work done was dedicated to the pursuit of those claims. Other than to rely on
Plaintiff's counsel's summary ostensibly separating out work done relating to the
"stock," (see e.g. Doc. No. 212-2,Blum Decl. at ¶ 25, describing a "rough allocation
of fees for stock-claim-specific tasks") without any means of cross-checking the
estimates, the Court has no way of determining an appropriate amount of fees.
Since Plaintiff has failed to meet its burden to justify its reasonable attorneys' fees
relating to the claims on which it prevailed, the Court DENIES the motion.
For the reasons set forth above, Defendant Smith's Motion to Re-Tax costs [Doc.
No. 193] is GRANTED IN PART. RQ's recoverable costs are reduced by $7,710.88,
and $10,656.88 in costs shall be in favor of RQ. Plaintiff's Motion for Attorneys'
Fees [Doc. No. 212] is DENIED. In light of the foregoing rulings, Defendant's tolling
motion [Doc. No. 216] is DENIED AS MOOT.
IT IS SO ORDERED.
Partner Jim Holtz named
The law firm of Stutz Artiano
Shinoff & Holtz is proud to
announce that founding partner
James F. Holtz has been
honored with selection to the list
of 2014 Super Lawyers, by
Thomson Reuter. This will be his
7th consecutive time appearing
on the list since 2008 for the
practice area of Business
Litigation. The stringent
peer-review process, which is
now patented through the U.S.
Patent and Trademark Office,
evaluates recognition and
achievement in 70 practice areas
and results in only 5% of
California attorneys receiving this
designation. The Super Lawyers
list is published in the Southern
California Super Lawyer
Magazine and is searchable
on-line at www.superlawyers.com
Mr. Holtz represents clients in
both California and Nevada
and has focused on trial and
appellate work in business law
since the firm began in 1982.
He is a frequent lecturer before
legal and insurance
organizations, as well as an
Adjunct Professor at California
Western School of Law.