Opinion
G044465
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.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 02CC00182)
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.
Pistone & Wolder, Thomas A. Pistone and Amy A. Mousavi for Plaintiffs and Respondents.
* * *
In Jneid v. Tripole (Dec. 17, 2009, G039500) [nonpub. opn.] (Jneid I) this court reversed a judgment based on a substantively terminating discovery sanction because a lesser, monetary sanction was available. We remanded the case to the trial court to "determine the attorney fees, costs, and expenses incurred by plaintiffs and TriPole in connection with the already completed trial and order Novell to pay those amounts forthwith." On remand, in accordance with our opinion, the trial court entered four separate attorney fee, cost and expense orders, one for each of the four groups of attorneys who represented either plaintiffs Amer Jneid, Ali Beydoun and Craig Sheldon (plaintiffs), or TriPole Corporation (Tripole), in Jneid I. In turn, each of the orders has generated its own separate appeal.
The first of the four appeals, G044491, was the subject of this court's now-final opinion in Jneid v. Novell, Inc. (Sept. 23, 2011, G044491) [nonpub. opn.] (Jneid II). Jneid II involved a $1 million order in favor of attorney Bill Suojanen, who had represented plaintiffs throughout the litigation. We affirmed the order. In doing so, we determined that the trial court did not err in determining, for purposes of calculation of attorney fees, that the phrase "already completed trial" encompassed the span of time from the in limine motions in June 2006 through the trial court's ruling on the final posttrial motion in April 2008.
In the wake of Jneid II we requested supplemental briefing identifying the issues remaining for determination in each of the three remaining cases. Because of some duplication of issues, and for reader convenience, the three remaining cases are presented in this order: The first is this case, G044465 (Jneid III), involving attorneys Pistone and Wolder (the Pistone firm). This case raises two issues. The second, G044469 (Jneid IV), involves attorney Anthony J. Trepel. Jneid IV raises the same two issues which we consider in this opinion, plus raises two other issues. The final case, G044468 (Jneid V), involves the firm of Waldron & Bragg. It presents a single issue, different from all the others.
The attorney fee order here in Jneid III requires Novell to pay to the Pistone firm $472,975. The two issues that this case presents are: (1) whether the Pistone firm should have received any fees at all, given that it worked on the "already completed trial" pursuant to a contingency fee agreement; and (2) whether (assuming the answer to the first issue is yes) the trial court used "unreasonable and excessive" rates in calculating those fees. We answer the first question "yes," the second question "no," and affirm the trial court's order.
FACTS
On remand, the Pistone firm requested fees. The request revealed:
-- (1) the Pistone firm had a 20 percent contingency fee agreement with plaintiffs;
-- (2) plaintiffs "now" (that is, presumably at the time of the motion) had decided they wanted to terminate the contingency fee agreement; so
-- (3) "in exchange" for the Pistone firm's agreement to give up "their 20% contingency," the plaintiffs have agreed that the Pistone firm "will receive the fees granted by the court pursuant to this Motion, payable, by Order of this Court, directly to each law firm, as follows:" and then the figure of $490,325 is inserted.
The amount ultimately awarded by the trial court was actually $472,975. The discrepancy is explained because the Pistone firm gave up its claim to work done in November 2007, which amounted to $17,350. The difference between $490,325 and $472,975 is $17,350.
DISCUSSION
1. The Contingency Fee Issue
Novell's argument goes like this: In Jneid I, we used the word "incurred" in giving the trial court instructions as to how to proceed on remand. We told the trial court to award the "attorney fees . . . incurred by plaintiffs and TriPole in connection with the already completed trial and order Novell to pay those amounts forthwith." (Italics added.) Novell then points out that Trope v. Katz (1995) 11 Cal.4th 274 (Trope) held that a self-represented attorney cannot recover fees to which he or she would otherwise be statutorily entitled because the self-represented attorney does not "incur" any fees. (Accord, Musaelian v. Adams (2009) 45 Cal.4th 512, 517 (Musaelian) [self-represented attorney could not recover fees under sanction statute because statute used the word "incur"].) Novell analogizes the statute at issue in Trope (and, we would add, the sanction statute at issue in Musaelian) to our remand instruction here. The statute in Trope, the statute in Musaelian, and our own directions to the trial court in Jneid I all used the word "incurred." Novell argues that the contingent nature of the fee agreement with the Pistone firm, plus the agreement by the Pistone firm to absolve plaintiffs of any claims to any future judgment, means that no fees were actually "incurred."
We disagree. As the trial court considered the fee request of the Pistone firm on remand, the case was postured exactly as one in which a plaintiff, employing lawyers on contingency fee basis, decides to discharge those lawyers. A client, however, is not allowed to "confiscate" the work of an attorney employed under a contingency fee agreement by discharging the attorney prior to the recovery. (See Jalali v. Root (2003) 109 Cal.App.4th 1768, 1777.) In the case of such a premature discharge, the discharged lawyers may assert a quantum meruit claim against any recovery. (Fracasse v. Brent (1972) 6 Cal.3d 784, 792; see generally Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656, 671-673 (Rus, Miliband).) As the court plainly stated in Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 272 (Mardirossian): "It is well settled that a contingency fee lawyer discharged prior to settlement may recover in quantum meruit for the reasonable value of services rendered up to the time of discharge."
The potential claim in quantum meruit possessed by the Pistone firm distinguishes the present case from Trope or Musaelian, where there was self-representation and hence no possibility of any claim by an outside party against the winning self-represented lawyers. The quantum meruit claim possessed by the Pistone firm means that an obligation for attorney fees was indeed "incurred" by the plaintiffs.
Because the plaintiffs had "incurred" a fee obligation to the Pistone firm we need not address the more complex question as to the degree to which the award of fees might, or might not, otherwise be independently justified, or thwarted, by the varied case law arising out of slightly different contexts than the one before us. (See Ketchum v. Moses (2001) 24 Cal.4th 1122 (Ketchum) [contingency fee lawyer awarded fees under SLAPP statute]; Do v. Superior Court (2003) 109 Cal.App.4th 1210 [requiring fee award as discovery sanction where counsel represented indigent client pro bono]; Kravitz v. Superior Court (2001) 91 Cal.App.4th 1015, 1016-1017 [self-represented lawyer could not recover attorney fees as discovery sanction, only reasonable expenses]; Argaman v. Ratan (1999) 73 Cal.App.4th 1173 [reversing discovery sanctions awarded self-represented attorney]; In re Marriage of Adams (1997) 52 Cal.App.4th 911 [affirming award of sanctions for frivolous and delaying tactic to contingency fee lawyers].)
2. Amount of fees
According to the supplemental briefing filed December 5, 2011, the remaining issue is whether the trial court employed unreasonable billing rates in determining the amount of the award to the Pistone firm. On that point the opening brief asserts that plaintiffs' "trial team" was overstaffed because there were three "first chairs" at trial. (Besides Pistone, the other two "chairs" were Bill Suojanen, whose fees were the subject of Jneid II, and Anthony Trepel, whose award is considered in the companion appeal, Jneid IV, G044469.) Novell's theory is that the overstaffing created inherent inefficiencies in presenting plaintiffs' case, if only because of the need to coordinate the efforts of three separate firms. Accordingly, Novell argues, the case should be remanded for recalculation of the award based on a "more reasonable average" billing rate to take into account the various levels of tasks performed by the various lawyers. Novell proposes that this average billing rate would be $315.59 per hour, though it does not explain how it arrived at that precise figure.
Determination of reasonable billing rates is the quintessential abuse of discretion issue. (E.g., Russell v. Foglio (2008) 160 Cal.App.4th 653, 661-662 (Russell).) Under the circumstances of this case, no abuse is shown. As the sheer volume of the record in Jneid I attests, the case is an extremely complex one. It was quite reasonable for the trial court to conclude that attorney Suojanen would have needed assistance in the spring of 2006 as the summer trial approached. Suojanen's declaration shows that he approached five attorneys to work on the case. All turned him down. He approached a sixth, who accepted. Then she abandoned the case. (The ensuing attorney fee dispute is the subject of this court's opinion in Strong v. Beydoun (2008) 166 Cal.App.4th 1398.) Suojanen approached ten more attorneys, all of whom turned him down. Then, finally, the Pistone firm agreed to help him. Trial was looming. Practically all of the Pistone firm's work was devoted to trial.
The complexity and exigency of the case, in addition to the Pistone firm's trial experience, readily brings the billing rates within reason. (See Russell, supra, 160 Cal.App.4th at p. 662.)
3. The Cross-Appeal
The Pistone firm has filed a cross-appeal, essentially asserting that it was entitled to the $17,350 amount of work done in November 2007. (The amount claimed in the brief is slightly different, $17,675. The discrepancy is not material here.) However, the firm acknowledges that it did not request fees for November 2007 from the trial court. The Pistone firm is therefore estopped from claiming any error. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 ["'Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal' on appeal."].)
The Pistone firm's brief on its cross-appeal hints that the main reason the cross-appeal has been taken is because it has not "yet received the full payment" of the fees which were awarded. That, however, is a consideration that bears on the enforcement of the order, not any error or abuse of discretion on the part of the trial court in making the order in the first place.
DISPOSITION
The order is affirmed. The Pistone firm shall recover its costs on appeal.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
MOORE, J.
ARONSON, J.