robert m. bustamante, sbn 114681 susan k. hutter, sbn...

APPLICATION OF BUSTAMANTE & GAGLIASSO FOR FIRST AND FINAL PRE-CONFIRMATION ALLOWANCE OF ATTORNEYS’ FEES AS SPECIAL COUNSEL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Robert M. Bustamante, SBN 114681 Susan K. Hutter, SBN 220445 Gaurav D. Sharma, SBN 269123 BUSTAMANTE & GAGLIASSO, APC 333 W. San Carlos St., Suite 600 San Jose, California 95110 Telephone: (408) 977-1911 Facsimile: (408) 977-0746 Email: [email protected]

[email protected] [email protected]

Attorneys for Debtor and Debtor-in-Possession MI PUEBLO SAN JOSE, INC.

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

In re: MI PUEBLO SAN JOSE, INC., Debtor.

Case No. 13-53893-ASW Chapter 11 Date: August 28, 2014 Time: 2:15 p.m. Courtroom: 3020 Judge: Hon. Arthur S. Weissbrodt


TO THE HONORABLE ARTHUR S. WEISSBRODT, UNITED STATES BANKRUPTCY

JUDGE:

Special Counsel Bustamante & Gagliasso, APC (“Special Counsel”), respectfully submits

this application for first and final pre-confirmation allowance of attorneys’ fees in the amount of

Case: 13-53893 Doc# 1043 Filed: 08/07/14 Entered: 08/07/14 14:59:14 Page 1 of 9


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

$107,628.00 for the period of July 22, 2013 (the “Petition Date”), through and including May 30,

2014 (the “Application Period”).

I.

EMPLOYMENT

Special Counsel has been appointed by Ex Parte Order of this Court filed August 12, 2013 to

represent Debtor by providing advice, assistance, substantive factual information and representation

in connection with the pending civil matter of NUCP Turlock v. Mi Pueblo San Jose, Inc., Santa

Clara County Superior Court Case No.: 1-11-CV-210469 (hereinafter referred to as the “NUCP

Litigation”). NUCP is the largest unsecured creditor in this bankruptcy proceeding.

II.

CASE STATUS

Per the Guidelines for Compensation and Expense Reimbursement for Professionals and

Trustees, Guideline Number Two, we incorporate by reference the narrative history of the general

operations of the Debtor previously supplied by Binder & Malter, attorneys for the Debtor.

III.

SERVICES RENDERED

Special Counsel was asked to provide analysis to Binder & Malter, attorneys for the Debtor

regarding the Debtor’s largest unsecured creditor, NUCP Turlock, LLC’s, claims. Special Counsel

was counsel for Debtor in the underlying state court action.

Our legal services, for which we seek reimbursement in this application, fall into six (6)

categories, which are set forth below.

CATEGORY HOURS FEES

# 1 Initial Case Evaluations, Consultations with Bankruptcy Counsel, Application Filing and Retention

20.20 $5,545.00

# 2 Continued Defense of Action in the NUCP Litigation Re. Tioga Construction and PB2 Cross-Complaints, Damages, and Discovery Related Issues

97.40 $28,561.00



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

# 3 Provide Information to Bankruptcy Counsel Re. NUCP Litigation as to Liability Issues, Damages, and Discovery as to NUCP Bankruptcy Motions

42.70 $13,104.00

# 4

Assist Bankruptcy Counsel Re. Opposition to NUCP’s Motion for Relief from Automatic Stay

27.60 $7,546.00

# 5

Assist Bankruptcy Counsel in Support of Opposition to NUCP’s Motion for Provisional Allowance of Claims and Associated Motions

169.00 $50,658.00

# 6 General Case Administration

12.3 $2,214.00

TOTALS 369.20 $107,628.00

For the court’s ease of reviewing the summaries below and the invoices attached, the initials

“JAE” stand for Jennifer A. Emmaneel, Associate, whose hourly rate to Debtor was $270, the

initials “RMB” stand for Robert M. Bustamante, Partner, whose hourly rate to Debtor was $340, the

initials “SKH” stand for Susan K. Hutter, Senior Associate, whose hourly rate to Debtor was $270,

and the initials “BRW” stand for Brian R. Wilson, Associate, whose hourly rate to Debtor was

$270.

The services performed by Special Counsel in each category, along with a breakdown of the

professionals that performed the services, are as follows:

1. Category 1 – Initial Case Evaluations, Consultations with Bankruptcy Counsel,

Application Filing and Retention.

Special Counsel expended approximately 20.2 hours in this category for a total charge of

$5,545.00. The services performed in this category generally included, but were not limited to the

initial consultations with bankruptcy counsel, preparation of retention agreement and conflict

waiver, and preparation of bankruptcy application for appointment as Special Counsel. We

provided preliminary information to bankruptcy counsel and reviewed significant documentation as

to our engagement as Special Counsel.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A breakdown of the professionals who billed time to Category 1 and the number of hours

billed by each is as follows:

Professional Hourly Rate Hours Billed Total

Robert M. Bustamante $340 1.3 $442.00

Susan K. Hutter $270 18.9 $5,103.00

Totals 20.20 $5,545.00

2. Category 2 – Continued Defense of Action in the NUCP Litigation Re. Tioga

Construction and PB2 Cross-Complaints, Damages, and Discovery Related Issues.


$28,561.00. The services performed in this category included the exhaustive continued discovery

negotiations and dispute with Tioga Construction. (NUCP Turlock’s counsel in the state court

action was also counsel for Tioga Construction.) Although NUCP was subject to the automatic

stay, Tioga Construction argued it was not and continued extensive and protracted discovery that

NUCP sought prior to the automatic stay. In effect, NUCP was seeking to obtain under the guise of

Tioga Construction the same discovery that was barred under the automatic stay. Special Counsel

had to continue to engage in exhaustive meet and confers, exchange of partial documents, review of

motions and consideration of filing motions to respond to Tioga’s requests. Counsel also had to

consider filing motions for summary adjudication, as well as motions to compel regarding the

extensive and exhaustive discovery dispute with NUCP. Counsel had to prepare for and attend

several hearings with the state court to address Tioga Construction’s demands. This Court

apparently has observed a glimpse of the discovery dispute and NUCP’s tendency to file exhaustive

motions.



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

A breakdown of the professionals who billed time to Category 2 and the number of hours billed

by each is as follows:


Robert M. Bustamante $340 40.00 $13,090.00

Jennifer A. Emmaneel $270 .3 $81.00

Susan K. Hutter $270 56.80 $15,309.00

Brian R. Wilson $270 .3 $81.00

Totals 97.40 $28,561.00

3. Category 3 – Provide Information to Bankruptcy Counsel Re. NUCP Litigation as to

Liability Issues, Damages, and Discovery as to NUCP Bankruptcy Motions.


$13,104.00. The services performed in this category generally included, but were not limited to,

providing bankruptcy counsel with significant background information regarding the underlying

NUCP litigation. Special Counsel was requested to identify and evaluate excerpts from various

deposition transcripts of the Debtor’s representatives, as well as NUCP Turlock, LLC’s

representatives to address NUCP’s claims in the bankruptcy proceedings. In addition, Special

Counsel was requested to provide specific detailed information as to the allegations regarding the

$20 million dollar plus damage claim alleged by NUCP in the state court action, provide a summary

and detailed analysis and explanation of the breakdown of damages, and all discovery issues

relating to the NUCP Turlock litigation. These tasks required extensive review of all pleadings, our

prior case evaluations, expert reports, client documents and all other document productions

produced through discovery and/or subpoenas, which include over 50,000 pages of documents,

written discovery, deposition testimony, and supporting deposition exhibits.





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28



Susan K. Hutter $270 20.20 $5,454.00

Totals 42.70 $13,104.00

4. Category 4 – Assist Bankruptcy Counsel Regarding Opposition to NUCP’s Motion for

Relief from Automatic Stay.



providing bankruptcy counsel with discovery and deposition excerpts from the NUCP Turlock state

court action. This included extensive review of the underlying lawsuits, discovery responses,

document review, expert and consultant reports, and deposition testimony, in addition to damage

information and analysis relating to NUCP Turlock litigation for purposes of opposing NUCP’s

Motion for Relief from Automatic Stay. This also required extensive consultation with bankruptcy

counsel in order to assist in the formulation of arguments to said motion.





Susan K. Hutter $270 13.30 $3,024.00

Totals 27.60 $7,546.00

5. Category 5 – Assist Bankruptcy Counsel in Support of NUCP’s Motion for Provisional

Allowance of Claims and Associated Motions.





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

providing bankruptcy counsel with significant information regarding the nature and extent of

NUCP’s damage claims associated with the $20 million breach of lease/contract. The arguments

regarding the breach of the lease related to NUCP’s failure to complete its responsibilities pursuant

to the lease. In addition, counsel provided information regarding the Debtor’s and NUCP’s

arguments made in the NUCP Turlock state court action and the supporting documents and

testimony/discovery responses regarding same. Special Counsel provided analysis and drafted

background and arguments to Debtor’s bankruptcy counsel and Cha Cha’s bankruptcy counsel in

response to various motions filed by NUCP, included by not limited to: Claim No. 9, Claim 59-1,

Claim 59-2, Motion for Provisional Allowance, and Claim 59-3.

A breakdown of the Professional Services provided and billed in this category are as follows: Professional Hourly Rate Hours Billed Total


Susan K. Hutter $270 96.30 $25,974.00

Totals 169.00 $50,658.00

6. Category 6 – General Case Administration.



reviewing new pleadings, correspondence, and all other documents received in the case, monitoring

status of case, and monitoring discovery and timeline of case.

A breakdown of the professional who billed time to Category 6 and the number of hours

billed is as follows:


Susan K. Hutter $270 12.3 $2,214.00

Totals 12.3 $2,214.00



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

IV.

SUMMARY OF FEES AND EXPENSES

Fees. Exhibit A contains reproductions of time sheets and cost records kept in the regular

course of business for services rendered to Debtor. The total fees and expenses incurred and

recorded by Counsel in this case during the period covered by this Application, for which

compensation is sought, are set forth in Exhibit A:



Jennifer A. Emmaneel $270 .3 $81.00

Susan K. Hutter $270 217.80 $57,078.00

Brian R. Wilson $270 .3 $81.00

Totals 369.20 $107,628.00

Expenses. The amount of expenses incurred during the period covered by this Application

is $54.85. Special Counsel has no charged its expenses as a courtesy to Debtor.

Counsel requests an order under Bankruptcy Code Section 330 approving fees in this case in

in the amount of $107,628.00 for the period of July 22, 2013, through and including May 30, 2014,

as fair, reasonable, and necessary to the estate.

V.

PAYMENTS RECEIVED TO DATE

Pursuant to the Order Establishing Procedures for Interim Payment of Fee Reimbursement

of Expenses entered by this Court on December 6, 2013, Special Counsel has served Interim Fee

Statements. A summary of the Interim Fee Statements is as follows:

Date Submitted

Time Period

Total Requested

Fees Costs Holdback Amount Approved

Amount Paid

#1

12/20/13 7/23/13 -11/30/13

$50,825.00 $40,666.00 ____

$10,165.00 $40,660 $40,660



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

#2

5/29/14 12/1/13- 4/30/14

$26,529.70 $21,188.00 $44.70 $5,297.00

____ ____

#3

6/19/14 5/1/14 – 5/31/14

$30,318.00 $24,254.00 $10.15 $6,053.45

____ ____

TOTALS $107,672.70 $86,102.40 $54.85 $21,515.45 $40,660 $40,660

Special Counsel has received only one payment in the amount of $40,660.00 representing

80% of its firm fees for the period of July 23, 2013 to November 30, 2013 (“Interim Statement #

1”). Special Counsel has not been paid for services from December 1, 2013 to May 31, 2014

(“Interim Statement #s 2 and 3”).

VI.

CONCLUSION

Based on all of the above, Robert M. Bustamante and the law office of Bustamante and

Gagliasso, APC, respectfully request this Court to enter its order approving the compensation

sought as fair, reasonable, and necessary to the estate, and entering an order specifically providing

as follows:

1. Approving on a final basis attorneys’ fees in the sum of $107,628.00, incurred by

Bustamante & Gagliasso, APC during the period extending from July 22, 2013, through and

including May 30, 2014, as fair, reasonable, and necessary to the estate;

2. Authorizing the Debtor to pay Bustamante & Gagliasso, APC the sum of $66,698.00,

representing the balance of the approved fees; and

3. For such other and further relief as the Court deems just.

Dated: August 7, 2014 Bustamante & Gagliasso, APC By: /s/ Robert M. Bustamante Susan K. Hutter Attorneys for Mi Pueblo San Jose, Inc.


DECLARATION OF SUSAN K. HUTTER IN SUPPORT OF FIRST AND FINAL PRE-CONFIRMATION APPLICATION FOR ALLOWANCE OF ATTORNEYS’ FEES AS SPECIAL COUNSEL

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Robert M. Bustamante, SBN 114681 Susan K. Hutter, SBN 220445 Gaurav D. Sharma, SBN 269123 BUSTAMANTE & GAGLIASSO, APC 333 W. San Carlos St., Suite 600 San Jose, California 95110 Telephone: (408) 977-1911 Facsimile: (408) 977-0746 Email: [email protected]

[email protected] [email protected]

Attorneys for Debtor and Debtor-in-Possession MI PUEBLO SAN JOSE, INC.

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

In re: MI PUEBLO SAN JOSE, INC., Debtor.

Case No. 13-53893-ASW Chapter 11 Date: August 28, 2014 Time: 2:15 p.m. Courtroom: 3020 Judge: Hon. Arthur S. Weissbrodt

DECLARATION OF SUSAN K. HUTTER IN SUPPORT OF BUSTAMANTE & GAGLIASSO, APC FOR FIRST AND FINAL PRE-CONFIRMATION APPLICATION FOR

ALLOWANCE OF ATTORNEYS’ FEES AS SPECIAL COUNSEL

I, Susan K. Hutter, hereby declare:

1. I am an attorney at law, duly licensed to practice in the State of California, and am a

senior associate in the law firm of Bustamante & Gagliasso, APC (“Special Counsel”). I have

personal knowledge of the following facts and if called as a witness could competently testify

thereto.

Case: 13-53893 Doc# 1043-1 Filed: 08/07/14 Entered: 08/07/14 14:59:14 Page 1 of 3


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2. I have been an associate of Bustamante & Gagliasso, APC and its former entities since

July 2002. As such, I have personal knowledge of our firm’s billing policies and practices. I have

prepared the accompanying Application of Bustamante & Gagliasso, APC for First and Final Pre-

Confirmation Allowance of Attorneys’ Fees and to the best of my knowledge, all representations

are true and correct.

3. During the period July 22, 2013, through and including May 30, 2014, Bustamante &

Gagliasso, APC billed the Debtor for legal services in the sum of $107,628.00. The services

performed by Special Counsel during this case have been broken down into six task billing

categories. A list of the categories and the amounts calculated for each category during the period

covered by this Application is as follows:

CATEGORY HOURS FEES

# 1 Initial Case Evaluations, Consultations with Bankruptcy Counsel, Application Filing and Retention

20.20 $5,545.00

# 2 Continued Defense of Action in the NUCP Litigation Re. Tioga Construction and PB2 Cross-Complaints, Damages, and Discovery Related Issues

97.40 $28,561.00

# 3 Provide Information to Bankruptcy Counsel Re. NUCP Litigation as to Liability Issues, Damages, and Discovery as to NUCP Bankruptcy Motions

42.70 $13,104.00

# 4

Assist Bankruptcy Counsel Re. Opposition to NUCP’s Motion for Relief from Automatic Stay

27.60 $7,546.00

# 5

Assist Bankruptcy Counsel in Support of Opposition to NUCP’s Motion for Provisional Allowance of Claims and Associated Motions

169.00 $50,658.00

# 6 General Case Administration

12.3 $2,214.00

TOTALS 369.20 $107,628.00

4. True and correct copies of Bustamante & Gagliasso, APC’s monthly statements for the

period by this Application are attached as Exhibit A, and are incorporated herein by reference. To



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

the best of my knowledge, information, and belief, the time records referenced in the attached

billing statements accurately represents the actual time spent by the various timekeepers in

performing the described legal services in this case.

5. This is Special Counsel’s first and final pre-confirmation fee application for the Chapter

11 period.

6. Pursuant to the Order Establishing Procedures for Interim Payment of Fee

Reimbursement of Expenses entered by this Court on December 6, 2013, Special Counsel has

served Interim Fee Statements. A summary of the Interim Fee Statements is as follows:

Date Submitted

Time Period

Total Requested

Fees Costs Holdback Amount Approved

Amount Paid

#1

12/20/13 7/23/13 -11/30/13

$50,825.00 $40,666.00 ____

$10,165.00 $40,660 $40,660

#2

5/29/14 12/1/13- 4/30/14

$26,529.70 $21,188.00 $44.70 $5,297.00

____ ____

#3

6/19/14 5/1/14 – 5/31/14

$30,318.00 $24,254.00 $10.15 $6,053.45

____ ____

TOTALS $107,672.70 $86,102.40 $54.85 $21,515.45 $40,660 $40,660

Special Counsel has received only one payment in the amount of $40,660.00 representing

80% of its firm fees for the period of July 23, 2013 to November 30, 2013 (“Interim Statement #

1”). Special Counsel has not been paid for services from December 1, 2013 to May 31, 2014

(“Interim Statement #s 2 and 3”).

7. I certify that Bustamante & Gagliasso, APC has complied with this Court’s

Guidelines for Compensation and Expense Reimbursement.

I declare under penalty of perjury that the foregoing is true and correct. Executed on August

7, 2014 in San Jose, California.

/S/ Susan K. Hutter


PROOF OF SERVICE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

CASE NAME: In Re Mi Pueblo San Jose, Inc. ACTION NO.: 13-53893-ASW UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF SANTA CLARA

I am a citizen of the United States. My business address is 333 West San Carlos St, Suite 600, San Jose, California 95110. I am employed in the County of Santa Clara where this service occurs. I am over the age of 18 years, and not a party to the within action or cause. I am readily familiar with my employer's normal business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business.

On the date set forth below, following ordinary business practice, I served the foregoing document(s) described as: APPLICATION OF BUSTAMANTE & GAGLIASSO FOR FIRST AND FINAL PRE-CONFIRMATION ALLOWANCE OF ATTORNEYS’ FEES AS SPECIAL COUNSEL

DECLARATION OF SUSAN K. HUTTER IN SUPPORT OF APPLICATION OF BUSTAMANTE & GAGLIASSO FOR FIRST AND FINAL PRE-CONFIRMATION ALLOWANCE OF ATTORNEYS’ FEES AS SPECIAL COUNSEL

on said date at my place of business, a true copy thereof, on the following parties by enclosing said copies in a sealed envelope in the ordinary course of business, addressed to the parties as follows:

Mi Pueblo San Jose, Inc. Attn: President 1745 Story Road San Jose, California 95122

Robert G. Harris Binder & Malter LLP 2775 Park Avenue Santa Clara, California 95050 Counsel to Mi Pueblo

John S. Wesolowski The Office of the United States Trustee for Region 17 280 S. 1st Street # 268 San Jose, California 95113


PROOF OF SERVICE

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Eric D. Goldberg Gordon Silver Ltd. 1888 Century Park East, Suite 1500 Los Angeles, California 90067 Counsel to the Creditors’ Committee Paul Pascuzzi Felderstein Fitzgerald Willoughby & Pascuzzi LLP 400 Capitol Mall, Suite 1750 Sacramento, California 95814 Counsel to Cha Cha Marc J. Carmel Paul Hastings LLP, 191 North Wacker Drive, 30th Floor, Chicago, Illinois 60606 Counsel to the DIP Facility Lenders and Exit Facility Lenders Todd Schwartz Paul Hastings LLP 1117 S. California Avenue Palo Alto, California 94304 Counsel to the DIP Facility Lenders and Exit Facility Lenders

(BY MAIL) I caused such envelope(s) with postage thereon fully prepaid to be placed in the U.S. mail at San Jose, California.

(BY EMAIL TRANSMISSION) I caused such documents to be delivered by electronic

transmission to the persons at the electronic-email addresses indicated on the service list attached hereto.

(BY FACSIMILE) I caused such documents to be delivered by facsimile transmission this

date to the offices of the addressee(s), to the fax number noted herein.

(BY PERSONAL SERVICE) I caused such envelope(s) to be delivered by hand this date to the offices of the addressee(s).

(BY OVERNIGHT DELIVERY) I caused such envelope(s) to be delivered to an overnight

delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served.

(STATE) I declare under penalty of perjury under the laws of the State of California that the

above is true and correct.

(FEDERAL) I declare that I am employed in the office of a member of the bar of this court at whose direction the services was made.

Executed on August 7, 2014 at San Jose, California. /S/ Emily A. Khasin


robert m. bustamante, sbn 114681 susan k. hutter, sbn...

Documents