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Jneid v. Novell, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
G044468 (Cal. Ct. App. Jan. 31, 2012)

Opinion

G044468

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. Waldron & Bragg, Gary A. Waldron, Sherry S. Bragg, John S. Olson and Carol A. Foster 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(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.

Waldron & Bragg, Gary A. Waldron, Sherry S. Bragg, John S. Olson and Carol A. Foster for Plaintiffs and Respondents.

This is the final of a trio of appeals following in the wake of this court's decisions in Jneid v. Tripole (Dec. 17, 2009, G039500) [nonpub. opn.] (Jneid I) and Jneid v. Novell, Inc. (Sept. 23, 2011, G044491) [nonpub. opn.] (Jneid II). In the wake of Jneid II, the sole issue remaining in this appeal, which we call "Jneid V," is a challenge to $213,879.50 in expert witnesses fees awarded the firm of Waldron & Bragg (the Waldron firm) for its representation of TriPole Corporation (Tripole) in Jneid I.

As presented by appellant Novell, the challenge to the expert fee award presents the strictly legal question of the effect of the "temporal limits" issue explored in Jneid II. That case involved the question of what this court meant in Jneid I when we directed the trial court to order Novell to pay the attorney fees of plaintiffs and Tripole "in connection with the already completed trial." In Jneid II, we held that the trial court acted correctly in determining that "the already completed trial" encompassed a time span from the in limine motions of June 2006 through the trial court's last ruling on a posttrial motion in April of 2008.

Novell's point in the instant appeal is that the expert fee award here encompassed a portion of expert fees incurred prior to June 2006, and hence the fee award should be reduced by those expert fees incurred prior to June 2006. We may take it as given that much of the expert fees were incurred in the period March 2006 through June 2006 as Tripole was gearing up for trial. (The fees went to three experts: Peter Alexander, Jamie Holmes, and Steve Zamucen. Alexander was a software expert. Holmes and Zamucen were accounting experts.)

As in Jneid II, we recognize the equitable problem inherent in the temporal limits issue. This court could not determine, as we did in Jneid I, that the trial judge had leveled an unnecessarily harsh sanction on Novell until after trial had been completed and the case came up to us on appeal. The trial judge on remand (a new trial judge, the one who presided over the trial in Jneid I having retired) was thus faced with a question of loss allocation. As we said in Jneid II, "given that the ultimate cause of the unnecessarily prolonged trial was Novell's discovery malfeasance, the loss was appropriately allocated to Novell."

The problem of the expert fees presents similar equitable concerns. We note that in Jneid I we did not frame our direction in strictly temporal terms. We did not say "all fees, costs and expenses incurred from a given day (at the beginning of trial) to a given day (at the end of trial)." Rather, we used the phrase "in connection with the already completed trial" (italics added), giving the trial judge on remand a degree of latitude to assess what fees, costs and expenses were genuinely incurred "in connection with" the trial in Jneid I.

All legal work stems from a universe of facts. Expert testimony even more so. (See People v. McWhorter (2009) 47 Cal.4th 318, 362 [an expert's opinion is only as valuable as the truth of the facts assumed].) Novell's not turning over the 17,000 pages of documents from the iFolder back in March 2003 necessarily affected all the legal work done subsequently in the period March 2003 through June 2006. Judge Andler would have been reasonable if she had read our order in Jneid I to require assessment of all fees and costs incurred after March 2003, because those fees and costs were incurred in connection with the already completed trial. The fact that Judge Andler, in effect, gave Novell a break by assessing attorney fees only from the June 2006 in limine motions does not mean that she misread our order by assessing expert witness fees incurred in the period March 2006 to June 2006. Those expert witness fees were indisputably incurred "in connection with" the already completed trial, the expert fees even more than the attorney fees.

We note that Novell does not argue that the expert fees at issue in this appeal have already been the subject of an order assessing Novell, as provided in Jneid I, with the costs "of any additional discovery resulting from the late production of the documents." According to Novell, the expert fees here do not qualify under the "separate provision for pretrial expenses" which was part of Jneid I. It is enough to say for purposes of this appeal that the expert fees at issue here were certainly costs incurred "in connection with" the "already completed trial" and leave it at that.

The order is therefore affirmed. The Waldron firm shall recover its costs on appeal.

RYLAARSDAM, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.


Summaries of

Jneid v. Novell, Inc.

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE
Jan 31, 2012
G044468 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Jneid v. Novell, Inc.

Case Details

Full title:AMER JNEID et al., Plaintiffs and Respondents, v. NOVELL, INC., Defendant…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Date published: Jan 31, 2012

Citations

G044468 (Cal. Ct. App. Jan. 31, 2012)