Fee Claimant Did Something Good—Apportioned Fees Upfront From A Common Defense So That The Fee Request Was Not Inflated And Was Reasonable In Nature.
We congratulate attorneys Eric Bjorgum and Vincent Pollmeier, who apparently follow our blog, for a nice attorney’s fees/costs proceeding win in a trade secrets misappropriation case which was presided over by Los Angeles County Superior Court Judge David Sotelo.
In SoCal Diesel Inc. v. Extrasensory Software, Inc., LASC Case No. BC597857 (Fee Motion Order dated Aug. 9, 2018, Download Link here ), an individual defendant obtained a nonsuit in a trade secret misappropriations case, while a corporate and other individual defendants, after a jury trial finding them liable for misappropriation, obtained a grant of a new trial motion by Judge Sotelo. The individual defendant obtaining the nonsuit then moved to recover $168,924.96 in attorney’s fees and $29,560.28 in costs (after voluntarily reducing costs by about $10,000 in response to an opposition by plaintiff), doing so based on the CUTSA fee-shifting provision (Civ. Code, § 3426.4) for misappropriation claims brought in bad faith. (For the standards governing bad faith in this context, see our home page category “Trade Secrets”.) The moving defendant did a lot of good things in its fee motion, with the lower court granting the entire request.
Plaintiff argued that its appeal of the nonsuit/new trial orders divested the lower court of jurisdiction to entertain the fee motion, but the lower court found that case law such as Bankes v. Lucas, 9 Cal.App.4th 365, 368 (1992) had rejected such a contention. (BLOG OBSERVATION—We believe that Judge Sotelo got this right, something the Fifth District did not in Swinerton Builders v. Fresno Plumbing & Heating, Inc., discussed in our August 2, 2018 post.)
The moving party persuasively assembled the evidence to show that he was not involved in any misappropriation and was only included as a defendant to put leverage on the other defendants to settle.
The next good thing which moving party did was actually allocate fees to work efforts relating to just him versus trying to overreach by requesting fees for all of the common defense work on behalf of all three defendants. The lower court bought the allocation, which was not arbitrary, and provides a good tip to practitioners on how to think about issues which would trouble a judge in awarding fees so as to pro-actively apportion in the first instance.
The hourly rates of $250 to $350 were reasonable, if not low, for Los Angeles County attorneys.
Congratulations to Messrs. Bjorgum and Pollmeier on their win, as well as sharing the opinion with us. Mr. Bjorgum told us that our website was helpful in the fee proceeding – and this is one reason that we do the blog!
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