Appellate Court Found Lower Court Correct to View L.A. Attorneys As Within San Bernardino Venue and Necessary Given Earlier Misfortunes with Local Attorneys.
Trealoff v. Forest River, Inc., Case No. E048818 (4th Dist., Div. 2 Oct. 6, 2011) (unpublished) was a case where an ex-employee won sizable jury verdicts, including punitive damages, for not being paid all of his promised commissions (which has fee-shifting recourse under the Labor Code) and for being the victim of employee computer tampering (which allows a discretionary award of fees under Penal Code section 502). On top of all that, he was awarded $980,373.50 (out of a requested $1,624,301) in attorney’s fees to some of prevailing party’s attorneys. Both sides appealed, with defendants contesting the award and plaintiff contending the punitive damages award should not have been reduced by the trial court (the latter contention failing on appeal).
Fee award (as most of the merits judgment) was affirmed.
Defendants challenged plaintiff’s use of L.A. attorneys as primary trial counsel after plaintiff had to shift from using San Bernardino counsel after some preliminary “setbacks” in the case. The trial court did allow compensation to the L.A. attorneys at higher L.A. hourly rates. Interestingly enough, and containing the seeds for further erosion of the local venue compensation rule, the appellate court began by noting “there is no clearly delineated relevant legal community,” given Southern California lawyers routinely travel to L.A.-San Diego venues for civil litigation tasks. Beyond that, existing case law certainly condoned using out-of-venue attorneys where there had been difficulties in getting local attorneys who could try a case against a well-heeled opponent or where local attorneys did not have specialized knowledge to handle a particular matter. (See, e.g., Center for Biological Diversity v. County of San Bernardino, 188 Cal.App.4th 603, 616-617 (2010), primarily citing Horsford v. Board of Trustees of Cal. State Univ., 132 Cal.App.4th 339 (2005).)
In this instance, L.A. attorneys were justified given the early miscues and the perception of former San Bernardino counsel that more fire power was needed against the wealthier defendants. L.A. rates were justified because “[a]s the trial court recognized, Los Angeles, San Diego, and Orange counsel often try cases in its court [San Bernardino].” (Slip Op., p. 41.)
Defendants then argued that fees should have been apportioned between certain claims (excluding time for non-fee shifting claims), but the interlocking nature of the facts and proof belied that this needed to be done.
Finally, defendants argued that the fee substantiation was deficient, because a prior counsel (before the counsel trying the case) had his billings “authenticated” by the subsequent trial attorney. The appellate court found that this type of substantiation was reliable enough given that the billings by prior counsel were attached for court review to trial counsel’s supporting declaration.
BLOG UNDERVIEW–This one has some interesting human wrinkles to it, as most cases do. The successful trial attorney was Jeff Tidus, who tragically was murdered outside his Rollings Hills Estates home one evening in December 2009. Later, Brian Hennigan of Irell & Manella (a close friend of Mr. Tidus) helped on the appeal in this particular case, with co-contributors Marc and Mike seeing Mr. Hennigan October 6 at an Irell reunion hosted by the firm at Sony’s Culver City studios. We also saw many other alumni, including Sheldon Eisenberg, who said he is a “fan of our blog.” Good to see all you current attorneys and former alum of Irell, which we thank for inviting us to the event.