Opinion
G044469 Super. Ct. No. 02CC00182
01-31-2012
AMER JNEID et al., Plaintiffs and Respondents, v. NOVELL, INC., Defendant and Appellant.
Workman Nydegger, Sterling A. Brennan and L. Rex Sears for Defendant and Appellant. Trepel McGrane Greenfield, Anthony J. Trepel; and Amy A. Mousavi for Plaintiffs and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from an order of the Superior Court of Orange County, Gail Andrea Andler, Judge. Affirmed.
Workman Nydegger, Sterling A. Brennan and L. Rex Sears for Defendant and Appellant.
Trepel McGrane Greenfield, Anthony J. Trepel; and Amy A. Mousavi for Plaintiffs and Respondents.
This appeal centers on an order awarding $775,126.50 to Anthony J. Trepel and the Trepel Law Offices (Trepel) for his work for plaintiffs Amer Jneid, Ali Beydoun and Craig Sheldon (plaintiffs) on the "already completed trial" that led to Jneid v. Tripole (Dec. 17, 2009, G039500) [nonpub. opn.] (Jneid I). A second appeal following Jneid I, Jneid v. Novell (Sept. 23, 2011, G044491) [nonpub. opn.] (Jneid II) has already decided the main issue in this case, namely the length of time which the "trial" properly encompassed for purposes of calculation of attorney fees. In a third, companion appeal to this one, Jneid v. Novell, G044465 (Jneid III), we decide two of the remaining four issues raised in this appeal: (1) whether the fact an attorney was employed pursuant to a contingency fee agreement meant that plaintiffs really did not "incur" any fees to that attorney (answer: no; they did incur fees); and (2) whether the fact that plaintiffs employed three "first chair attorneys" to conduct the trial meant that the trial court erred in fixing the billing rate for the work (again, answer: no; the exigency and complexity of the case brought the trial court's billing determination within the bounds of reason). We need only add that the same considerations in Jneid III involving the two issues decided in Jneid III apply with as much force in this case. Like the Pistone firm in Jneid III, Trepel was called into an extremely complex case at a relatively late hour pursuant to a contingency fee agreement.
The two issues remaining for decision in this appeal are: (1) whether the trial court abused its discretion in calculating the award to include a number of 12-hour "trial" days when, in real time, trial usually lasted only six hours total; and (2) whether the trial court abused its discretion in calculating the award to include "travel time," necessitated because Trepel has its office in San Jose.
The first issue is simple. As attested by the enormous appellate record in Jneid I (some 13 boxes), the trial was an extremely complex matter. Even under Novell's now-rejected theory of a severely truncated period demarking the "temporal limits" of the trial, Novell concedes it lasted from at least July 24, 2006 to October 2, 2006, a period of no less than about two and one-half months. (As explained in Jneid II, the trial court was correct to use a much longer 22-month period.) Obviously the trial court could reasonably determine that work on the trial was an all-consuming undertaking, requiring morning, evening and often lunchtime preparation before and after the period the court was literally in session.
The second issue, involving travel time, is a little more complex, requiring that we first examine the nature of the appellate record supplied this court by appellant Novell.
The Appellant's Appendix compiled by Novell in this case, docket number G044469, is relatively slim. It consists mostly of the trial court docket list in the underlying action since October 2007. It does not contain any document throwing light on the nature of why attorney Suojanen sought Trepel's help in the spring and summer of 2006.
However, the opening brief in this appeal informs the court that Novell has elected to incorporate the record from another appeal, docket number G044491. That was the record in the appeal that became Jneid II. The Appellant's Appendix in Jneid II consists of five volumes, which cover much, but not all, of the paperwork considered by the trial court in making its various attorney fee orders in the wake of Jneid I.
Specifically, the five volumes of Appellant's Appendices submitted in Jneid II do not include many of the supporting declarations (or the exhibits attached to those declarations) behind the fee requests which are the subject of the appeals from the various attorney fee and cost orders made in the wake of Jneid I. So, for example, the Appellant's Appendix from Jneid II contains a "Supplemental Brief by Trepel Law Offices in Support of Motion for Attorney Fees," and that supplemental brief makes reference to a "Trepel Declaration" and at least four exhibits attached to it. But that declaration and attached exhibits are simply not to be found in the pages following the supplemental brief where one would normally expect to find them. Rather, another supplemental brief follows.
Likewise, there is a supplemental brief submitted by Bill Suojanen, which on its face says that the declarations of both Anthony J. Trepel and Bill Suojanen are filed concurrently with it. But neither declaration is to be found. To be sure there is a non-file stamped copy of a declaration of Anthony J. Trepel dated March 30, 2010. It makes reference to no less than nine attached exhibits, none of which appear to have been included in the Appellant's Appendix.
Perhaps the most important omission, though, is that of the declaration of Bill Suojanen. This declaration apparently supported an "amended notice of motion and plaintiff's motion for reasonable attorney fees and costs against Novell," filed in late September 2007. It is in the points and authorities to this document that we learn that Bill Suojanen sought help from no less than 15 attorneys before Trepel agreed to come to his rescue.
The details behind Suojanen's search, if any, are not disclosed in the narrative to be found in the points and authorities. Rather, if those details existed at all, they were to be found in Suojanen's supporting declaration, which is directly referenced in the points and authorities. But again, Suojanen's actual declaration is not to be found in the Appellant's Appendix from Jneid II.
These comments on the assembly of the Appellant's Appendix bear on the relevant law. The few cases which deal with the issue of travel time for nonforum counsel are consistent in adhering to a reasonable necessity rule. That is, fees can be awarded if there is a necessity to hire nonforum counsel. (See Horsford v. Board of Trustees of California State University (2005) 132 Cal.App.4th 359 [necessity found where local counsel were unwilling to take on politically-connected defendant]; Nichols v. City of Taft (2007) 155 Cal.App.4th 1233, 1242-1244 [winning plaintiffs "failed to make a 'sufficient demonstration of impracticality of not being able to obtain a local attorney'"].)
In fact, the main case relied on by Novell, Interfaith Community Organization v. Honeywell (3d Cir. 2005) 426 F.3d 694, affirmed an award of travel time and travel costs to the prevailing plaintiff, because there was substantial evidence supporting the district court's finding that "forum counsel were unwilling to represent the plaintiff." (Id. at p. 710.)
Because of the gaps in Appellant's Appendix, Novell is unable to argue that, in the various declarations that supported Trepel's request for fees, there was no substantial evidence of necessity. And given those gaps, we must infer the opposite. As we said in Jneid II, where a similar failure to supply Suojanen's declaration tripped up Novell, the burden is on the appellant "'to show error by an adequate record.'" (Quoting Cypress Security, LLC v. City and County of San Francisco (2010) 184 Cal.App.4th 1003, 1014, citing Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575.)
The best that Novell can do is to point out that, after the trial that led to Jneid I, Trepel was replaced by attorney Michael York, a fact ascertainable merely by looking at the cover of the briefs in Jneid II. From this one fact Novell argues that there was no need to hire out-of-town counsel because "[p]lenty of other Orange County attorneys were and are able to represent Plaintiffs in this litigation . . . ." There are no record references supporting the statement. And, to reiterate, given the lacuna in the record, we must draw the opposite inference. As the court said in Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502: "Appealed judgments and orders are presumed correct, and error must be affirmatively shown. . . . Consequently, [the appellant] has the burden of providing an adequate record. . . . Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant]."(Italics added.) On the necessity issue, we are therefore required to believe that Suojanen approached local counsel first.
Moreover, it does not logically follow that because a local attorney was willing to help with a case after a long and complex trial that local attorneys were available to handle the case in the three months leading up to trial. The task of the posttrial work could reasonably appear less formidable and time consuming than the task of working round the clock to prepare for the trial in the first place.
The implied finding of the trial court that there was a need to hire out-of-forum counsel must therefore be upheld. As in Interfaith, the trial court's finding of necessity means we must affirm the award of travel time and costs.
DISPOSITION
The order is affirmed. Trepel shall recover its costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.