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Hebrank v. Linmar Management, Inc.

United States District Court, S.D. California

October 9, 2014

THOMAS C. HEBRANK, Federal Equity Receiver, Plaintiff,
v.
LINMAR MANAGEMENT, INC., a California corporation, and Does 1-25, Defendants.

ORDER: (1) GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR ATTORNEY FEES AND COSTS; (2) VACATING HEARING DATE [ECF No. 19]

GONZALO P. CURIEL, District Judge.

I. INTRODUCTION

Before the Court is Plaintiff Thomas C. Hebrank's ("Plaintiff") Motion for Attorney Fees and Costs. (ECF No. 19.) Defendant LinMar Management, Inc. ("Defendant") opposes Plaintiff's motion. (ECF No. 22.) Plaintiff responded to Defendant's opposition. (ECF No. 23.)

The parties have fully briefed the motion. (ECF Nos. 19, 22, 23.) The Court finds the motion suitable for disposition without oral argument pursuant to Civil Local Rule 7.1(d)(1). Upon review of the moving papers, admissible evidence, and applicable law, the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion for Attorney Fees and Costs.

II. PROCEDURAL BACKGROUND

On September 13, 2013, Plaintiff filed a complaint against Defendant alleging: (1) breach of contract, (2) money had and received, (3) unjust enrichment, and (4) disgorgement. (ECF No. 1.) On May 22, 2014, Plaintiff moved for summary judgment on the breach of contract cause of action. (ECF No. 14.) On July 29, 2014, the Court granted Plaintiff summary judgment on the breach of contract cause of action. (ECF No. 18.)

On August 12, 2014, Plaintiff filed this motion for attorney fees and costs incurred: (1) through July 31, 2014; (2) after July 31, 2014, in relation to this motion; and (3) anticipated to be incurred for post-collection work. (ECF No. 19.) On September 4, 2014, Defendant filed an opposition to Plaintiff's motion. (ECF No. 22.) On September 19, 2014, Plaintiff filed a response to Defendant's opposition. (ECF No. 23.)

III. FACTUAL BACKGROUND

On March 13, 2013, the Court appointed Plaintiff as permanent receiver over Western Financial Planning Corporation ("Western") in the main action out of which this action arises: SEC v. Schooler (the "SEC Action"). Sec. and Exch. Comm'n v. Schooler, et al., No. 3:12-cv-2164-GPC-JMA (S.D. Cal. Mar. 13, 2013), ECF No. 174. On May 23, 2013, Plaintiff moved in the SEC Action for authority to pursue enforcement of promissory notes executed in favor of Western by Defendant and other entities. SEC v. Schooler, No. 3:12-cv-2164-GPC-JMA (S.D. Cal. May 23, 2013), ECF No. 192. On August 16, 2013, the Court granted Plaintiff's motion for authorization. SEC v. Schooler, No. 3:12-cv-2164-GPC-JMA, 2013 WL 4548525 (S.D. Cal. Aug. 16, 2013), ECF No. 470. On September 13, 2013, Plaintiff instituted three actions pursuant to the Court's order (the "LinMar Lawsuits"). Hebrank v. LinMar Management, Inc., et al., No. 3:13-cv-2179-GPC-JMA (S.D. Cal. Sept. 13, 2014), ECF No. 1; Hebrank v. LinMar III, LLC, et al., No. 3:13-cv-2179-GPC-JMA (S.D. Cal. Sept. 13, 2014), ECF No. 1; Hebrank v. LinMar IV, LLC, et al., No. 3:13-cv-2179-GPC-JMA (S.D. Cal. Sept. 13, 2014), ECF No. 1.

On April 14, 2009, Defendant executed a promissory note evidencing a loan by Western to Defendant in the amount of $40, 000. (ECF No. 19-1, Ex. A.) The promissory note provides that:

Lender may hire or pay someone else to help collect this Note if Borrower does not pay. Borrower also will pay Lender that amount. This includes, subject to any limits under applicable law, Lender's attorneys' fees and Lender's legal expenses whether or not there is a lawsuit, including attorneys' fees and legal expenses for bankruptcy proceedings (including efforts to modify or vacate any automatic state or injunctions), appeals, and any anticipated post-judgment collection services. Borrower will pay any court costs, in addition to all other sums provided by law.

(Id. ¶ 8.) Further, the promissory note states that it is "governed by and construed in accordance with the laws of the State of California." (Id. ¶ 9.) On February 12, 2013, Plaintiff issued a demand to Defendant for full repayment of the loan. (ECF No. 1, ¶ 13.) After Plaintiff issued the demand, the parties engaged in document production and settlement negotiations. (Id. ¶¶ 13-14.)

IV. LEGAL ...


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