Russell M. Frandsen, Esq.

, 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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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

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9 CITY NATIONAL BANK
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CASE NO. BC554790

Filed:
Assigned to:
Dept:

Plaintiff,

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v.
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August 14, 2014

Ruth Ann Kwan
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REPLY OF DEFENDANT JOHN JOSLYN

TO OPPOSITION TO MOTION FOR
AWARD OF COSTS AND ATTORNEYS
FEES

JOHN JOSLYN
Defendants.

Date: June 2, 2015

Time: 9:30 AM
Dept.: 72

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The Case Law Supports the Awarding of Attorneys Fees.

Plaintiff City National Bank opposes Defendant John Joslyns request for attorneys fees
and costs primarily on the basis Defendant John Joslyn is not the prevailing party. The Plaintiff
relies primarily on a recent opinion in DisputeSuite.com, LLC v. ScoreInc.com from the Court of
Appeal, 2nd Appellate District, filed on April 14, 2015, and modified on May 15, 2015. However,
the DisputeSuite.com opinion is based a dramatically different factual basis than the current matter
before Judge Kwan in Department 72.

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DEFENDANT JOHN JOSLYN REPLY TO OPPOSITION TO MOTION FOR AWARD

OF COSTS AND ATTORNEYS FEES

In DisputeSuite.com, the parties entered into a license agreement that contained a forum

2 selection clause requiring disputes to be resolved in Florida. DisputeSuite.com sued ScoreInc. in

3 Los Angeles County Superior Court and obtained a preliminary injunction. ScoreInc. moved to
4 quash the service of summons and complaint based on the forum selection clause. The Superior
5 Court granted the motion, but stayed the case for 60 days to allow DisputeSuite.com to file an
6 action in Florida. DisputeSuite.com in fact filed a complaint in Florida and the litigation
7 continued in Florida. Thereafter, the Los Angeles County Superior Court dismissed the California
8 action. ScoreInc. then filed a motion for attorneys fees as the prevailing party under the contract.
9 The Superior Court denied the request on the basis that since the litigation was continuing in
10 Florida, ScoreInc., no prevailing party had yet been determined. The Court of Appeal affirmed the
11 decision of the Superior Court.
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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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DEFENDANT JOHN JOSLYN REPLY TO OPPOSITION TO MOTION FOR AWARD

OF COSTS AND ATTORNEYS FEES

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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When a defendant obtains a simple, unqualified victory by defeating the only

contract claim in the action, section 1717 entitles the successful defendant to recover
reasonable attorney fees incurred in defense of that claim if the contract contained a
provision for attorney fees. The trial court has no discretion to deny attorney fees to the
defendant in this situation by finding that there was no party prevailing on the contract.
Because the Abbaras successfully defended the only contract claim in their litigation with
the Hsus, the Abbaras were, as a matter of law, the parties prevailing on the contract.
Accordingly, the trial court erred in denying them attorney fees under section 1717. (9
Cal.4th at 877.)

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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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DEFENDANT JOHN JOSLYN REPLY TO OPPOSITION TO MOTION FOR AWARD

OF COSTS AND ATTORNEYS FEES

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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The Attorneys Fees Request is reasonable.

Plaintiff City National Bank also objects that the fees are unreasonable and that the

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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unjust for City National Bank to pay for its cynicism.

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CONCLUSION

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DEFENDANT JOHN JOSLYN REPLY TO OPPOSITION TO MOTION FOR AWARD

OF COSTS AND ATTORNEYS FEES

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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THE BUSINESS LEGAL GROUP

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By _____________________________________
9 Russell M. Frandsen, Esq.
Attorney for Defendant John Joslyn
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DEFENDANT JOHN JOSLYN REPLY TO OPPOSITION TO MOTION FOR AWARD

OF COSTS AND ATTORNEYS FEES

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PROOF OF SERVICE

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STATE OF CALIFORNIA

COUNTY OF LOS ANGELES

)
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SS

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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REPLY TO OPPOSITION TO MOTION FOR AWARD OF COSTS AND ATTORNEYS

FEES
8 on all interested parties through their respective attorneys of record in this action:
Attorney for Plaintiff CITY
9 Joshua P. Friedman
9903 Santa Monica Blvd, #1108
NATONAL BANK
10 Beverly Hills, CA 90212
11 METHOD OF SERVICE
(BY MAIL) I caused such document to be place in envelope with postage thereon fully
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prepaid to be placed in the United States Mail. I am readily familiar with this firms practice of
13 collection and processing correspondence for mailing. It is deposited with the U.S. Postal Service
on that same day in the ordinary course of business. I am aware that on motion of party served,
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service is presumed invalid if postal cancellation date or postage meter date is more than one day
15 after date of deposit for mailing affidavit.
(BY PERSONAL SERVICE) I caused such document to be place in an envelope to be
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delivered by hand to the offices of the above addressee(s) by Central Courier, Inc. Such envelope
17 was delivered prior to 9:00 AM on April 24, 2012.
BY EMAIL OR ELECTRONIC TRANSMISSION: Based on a court order or an
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agreement of the parties to accept service by email or electronic transmission, transmitted the
19 document(s) electronically to the person(s) at the email address(es) above. Transmission was
reported as complete and without error.
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I declare under penalty of perjury that the above is true and correct. Executed on May 28,
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2015, at Pasadena, California 91101.
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_____________________
Russell M. Frandsen

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DEFENDANT JOHN JOSLYN REPLY TO OPPOSITION TO MOTION FOR AWARD

OF COSTS AND ATTORNEYS FEES