Free Brief - District Court of California - California

Case 3:07-cv-03437-JSW

Document 46

Filed 01/30/2008

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BRANCART & BRANCART Christopher Brancart (SBN 128475) Elizabeth Brancart (SBN 122092) Post Office Box 686 Pescadero, CA 94060 Tel: (650) 879-0141 Fax: (650) 879-1103 [email protected] [email protected] Attorneys for Plaintiffs

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA EDITH MACIAS, individually and on behalf of similarly situated individuals; HOTON DURAN; TIFFANY HUYNH; AURA MENDIETA; WILLIAM LABOY; MIGUEL ACOSTA; CRUZ ACOSTA; CUAUHTEMOC TORAL; and TERESA VILLEGAS, Plaintiffs, vs. THOMAS J. TOMANEK; and MARK GARIBALDI, individually and doing business as THE GARIBALDI COMPANY, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. C07-3437 JSW (EDL) PLAINTIFFS' SUPPLEMENT TO OPPOSITION TO DEFENDANTS' MOTIONS TO BE DECLARED PREVAILING PARTIES AND FOR AN AWARD OF ATTORNEYS' FEES AND COSTS Matter Referred to Magistrate Judge Elizabeth D. LaPorte (Doc. 43) Hearing: Date: Time: Room: March 4, 2008 9:00 a.m. Courtroom E 15th Floor

Plaintiffs file this supplement to their opposition to defendants' motions to be declared the prevailing parties in this action pursuant to California Civil Code § 1717 and for an award of costs and attorneys' fees, filed earlier today (doc. 44). To the extent that defendant Thomas Tomanek seeks to be deemed the prevailing party on plaintiffs' RICO claim, he cannot be so declared. Plaintiffs' RICO claim was not stated against him. Defendant Tomanek obtained only a dismissal for lack of subject matter jurisdiction. (See Order, doc. 35 at p. 6.) Obtaining such a dismissal is not prevailing "on a contract" within the meaning of California Civil Code §
PLAINTIFFS' SUPPLEMENT TO OPPOSITION TO DEFENDANTS' MOTIONS TO BE DECLARED PREVAILING PARTIES AND FOR AN AWARD OF ATTORNEYS' FEES AND COSTS - Case No. C 07-3437 JSW (EDL)

Case 3:07-cv-03437-JSW

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1717. Tomanek has not argued that the dismissal for lack of subject matter jurisdiction makes him a prevailing party on the contract, nor could he, for the reasons already set forth in plaintiffs' opposition. (See doc. 44 at pp. 18-19.) Accordingly, even in the event the Court decides that defendant Garibaldi is the prevailing party on the contract because he obtained a dismissal of plaintiffs' RICO claim, no fees or costs should be awarded to defendant Tomanek. Moreover, the fees sought by Garibaldi should be reduced as set forth in plaintiffs' opposition to 50% of those applicable to the RICO claim. (See doc. 44, pp. 20-23.) Dated: January 30, 2008. Respectfully submitted, BRANCART & BRANCART

/s/ Christopher Brancart Attorneys for Plaintiffs

PLAINTIFFS' SUPPLEMENT TO OPPOSITION TO DEFENDANTS' MOTIONS TO BE DECLARED PREVAILING PARTIES AND FOR AN AWARD OF ATTORNEYS' FEES AND COSTS - Case No. C 07-3437 JSW (EDL)

Case 3:07-cv-03437-JSW

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Filed 01/30/2008

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PROOF OF SERVICE
I am over the age of 18 and am not a party to the within action. My business address is 8205 Pescadero Road, Loma Mar, California 94021. On January 30, 2008, I served a true and correct copy of the following document(s):

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PLAINTIFFS' SUPPLEMENT TO OPPOSITION TO DEFENDANTS' MOTIONS TO BE DECLARED PREVAILING PARTIES AND FOR AN AWARD OF ATTORNEYS' FEES AND COSTS
upon the following person(s):

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PLAINTIFFS' SUPPLEMENT TO OPPOSITION TO DEFENDANTS' MOTIONS TO BE DECLARED PREVAILING PARTIES AND FOR AN AWARD OF ATTORNEYS' FEES AND COSTS - Case No. C 07-3437 JSW (EDL)

Ms. Sara Allman, Allman & Nielsen, 100 Larkspur Landing Circle, Suite 212 Larkspur, CA 94939; and Mr. John S. Blackman, Farbstein & Blackman, 411 Borel Ave., Suite 425, San Mateo, CA 94402 BY HAND DELIVERY: By causing such document(s) to be delivered by hand to the above person(s) at the address(es) set forth above. BY MAIL: By placing a copy thereof enclosed in a sealed envelope, with postage thereon fully prepaid, in the United States mail at Loma Mar, California, addressed as set forth above. BY THIRD-PARTY COMMERCIAL CARRIER (OVERNIGHT DELIVERY): By delivering a copy thereof to a third-party commercial carrier, addressed as set forth above, for delivery on the next business day. BY FACSIMILE: By transmitting the above document(s) to the facsimile number(s) of the addressee(s) designated above. xx BY ELECTRONIC TRANSMISSION OF THE "NOTICE OF ELECTRONIC FILING:" By electronically filing the document(s) (All counsel are "Filing Users")

I certify that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on January 30, 2008, at Loma Mar, California.

/s/ Christopher Brancart Christopher Brancart