Free Proposed Order - District Court of California - California

Case 3:07-cv-02952-WHA

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James P. Walsh, CSB. No. 184620 Gwen Fanger, CSB No. 191161 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111-3611 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 [email protected] Attorneys for Defendants and Claimant BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), the F/V POINT LOMA and Claimant, F/V POINT LOMA Fishing Company, Inc.

DAVIS WRIGHT TREMAINE LLP

8 COX, WOOTTON, GRIFFIN, HANSEN & POULOS LLP 9 Gregory W. Poulos (SBN 131428) Max L. Kelley (SBN 205943) 10 190 The Embarcadero San Francisco, CA 94105 11 Telephone No.: 415-438-4600 Facsimile No.: 415-438-4601 12 Attorneys for Plaintiff 13 DEL MAR SEAFOODS, INC 14 15 16 17 18 19 20 21 22 23 24 25 v. BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), in personam and, F/V POINT LOMA, Official Number 515298, a 1968 steel-hulled, 126-gross ton, 70.8 foot long fishing vessel, her engines, tackle, furniture apparel, etc., in rem, and Does 1-10, Defendants. DEL MAR SEAFOODS, INC., Plaintiff, UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION ) No. C-07-2952-WHA ) ) ) [PROPOSED] FORM OF JUDGMENT ) ) ) ) ) ) ) ) ) ) )

Pursuant to the Court's order set forth in its Findings of Fact and Conclusions of Law,

26 dated June 19, 2008, the parties jointly submit the following Proposed Form of Judgment. 27 28

PROPOSED FORM OF JUDGMENT DWT 11368045v2 0084289-000001

Case No. C-07-2952-WHA

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[PROPOSED] FORM OF JUDGMENT This matter was tried before the Court on May 20, 22, and 23, 2008. Closing arguments

3 were held on June 17, 2008. On June 19, 2008, the Court issued its Findings of Fact and 4 Conclusions of Law After Bench Trial. 5 6 7 8 9 10 b. c. The Court hereby enters judgment as follows: 1. Defendants are not in breach of their promissory note in favor of Plaintiff. a. The total amount unpaid under the note is $65,066.81, which amount is a debt secured by the ship mortgage given by Defendants to Plaintiff. No interest is due on the note; interest has been waived by Plaintiff. Because of previous payments, Defendants would be obligated to begin making monthly payments on the promissory note sometime in 2009. The amount remaining on the note, however, shall be paid by Defendants as an offset in accordance with paragraph 5 below. 2. Defendants are obligated to Plaintiff for unsecured debts in the amount of $63,681.26, which amount is now due and owing and shall be paid by Defendants as an offset in accordance with paragraph 5 below. 3. Because Defendants are not in breach of the promissory note and Plaintiff acted in bad faith, Plaintiff's arrest of Defendants' fishing vessel POINT LOMA was wrongful. a. Plaintiff is liable for damages caused to Defendants in the amount of $34,400. b. Damages for the wrongful arrest shall be due and owing ten (10) days after this Court issues an order pursuant to paragraph 4, below. 4. Defendants, as the prevailing party in this case, are entitled to recover all reasonable attorney's fees and costs in defending this litigation and in prosecuting the counterclaim, in an amount to be subsequently determined by the Court. Such amount shall be paid by Plaintiff to Defendants within ten (10) days after this Court issues an order determining the amount to be paid.
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PROPOSED FORM OF JUDGMENT DWT 11368045v2 0084289-000001 Case No. C-07-2952-WHA

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5.

All amounts owed by Defendants to Plaintiff as secured and unsecured debt shall be offset against the payment by Plaintiff of (a) the damages for the wrongful arrest; and (b) the amount of attorney's fees and costs awarded by the Court to Defendants.

6.

Upon payment of (a) damages for the wrongful arrest and (b) attorney's fees and costs by Plaintiff to Defendants, as offset by Defendants' secured and unsecured debt to Plaintiff, all secured and unsecured debt shall be released and satisfied in full. The note and mortgage shall be discharged and Plaintiff shall cooperate with Defendants in preparing and submitting the necessary application for release of the ship mortgage to the United States Coast Guard.

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7.

After determination of the amount of attorney's fees and costs to be awarded, any unpaid amount of such attorney's fees and costs and any unpaid damages and interest for the wrongful arrest shall bear interest at 2.46% or the most current weekly average rate for the calendar week preceding the date of judgment1.

8.

This Court shall retain jurisdiction in this matter until final determination of the amount owed by Plaintiff for attorney's fees and costs. Respectfully submitted, DAVIS WRIGHT TREMAINE LLP By: _ /s/ Gwen Fanger James P. Walsh Gwen Fanger Attorneys for Defendants and Claimant BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), the F/V POINT LOMA and Claimant, F/V POINT LOMA FISHING COMPANY, INC. COX, WOOTTON, GRIFFIN, HANSEN & POULOS By: _ /s/ Max Kelley Gregory W. Poulos Max L. Kelley Attorneys for Plaintiff, DEL MAR SEAFOODS, INC.

17 DATED this 2nd day of July, 2008. 18 19 20 21 22 23 24 25 26 27 28
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The rate of 2.46% is derived from the weekly average of the 1-year constant Treasury yield for the week ending June 27, 2008 as set forth in Attachment 1. 3
PROPOSED FORM OF JUDGMENT DWT 11368045v2 0084289-000001 Case No. C-07-2952-WHA

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