Lower Court Properly Did Not Award Self-Represented Attorney Any Fees Relating To Himself (But Okay For Other Codefendants), But Matter Remanded To Apportion Fees And To Award Paralegal Compensation For A Law Clerk’s Work.
Civil Code section 396b, subd. (b) allows a lower court, in its discretion, to award attorney’s fees to a defendant successfully moving to change venue where the other side refused to stipulate to a change and the plaintiff failed to file the suit in good faith in the transferor venue. That statute was at issue in California Capitalism Associates, LLC v. Marston, Case Nos. E078759 et al. (4th Dist., Div. 2 June 13, 2024) (unpublished).
There, plaintiffs entered into a joint venture agreement with the Chemehuevi Indian Tribe about establishing a cannabis and industrial complex in San Bernardino. After the Tribe terminated the joint venture agreement for an alleged breach, plaintiffs filed a lawsuit against their attorneys and main attorney’s law firm in San Bernardino County even though all but one attorney resided and did business in Mendocino County (where the legal work was performed). Defendants moved to change venue from San Bernardino to Mendocino County, after plaintiffs refused to stipulate to a change, with the lower court granting the motion and then awarding a reduced fee award under section 396(b), subd. (b) from the “ask” to the tune of $9,019.50. The lower court denied fees to attorney Marston because he was functionally representing himself on the venue change motion, but it also denied fees for Marston’s work on behalf of other codefendants. Additionally, the lower court denied fees for the work of a law clerk.
The 4/2 DCA decided the record showed that the change of venue opposition was not in good faith based on the location of the attorneys and where the work was performed. The reduced fee award was proper, because the lower court found that a very experienced attorney should have charged $350 per hour, not $550 per hour (even though this would have been appropriate for general Indian law work), mainly because the venue motion was not that complex. The lower court also properly reduced the award for unrelated venue motion work and for excessive time spent on the reply brief/venue change oral argument preparation work. The appellate court agreed that attorney Marston was functionally representing himself so the Trope prohibition applied as to work benefitting himself, but that he could represent the other codefendants such that denying fees for that work was erroneous—a remand was necessary to determine a reasonable fee award and proper apportionment of the fees. Finally, it was error for the lower court to deny paralegal compensation for the law clerk’s work on the motion, another remand point for further proceedings. (See Guinn v. Dotson, 23 Cal.App.4th 262, 269 (1994); Roe v. Halbig, 29 Cal.App.5th 286, 312 (2018) [paralegal compensation should be generally allowable].)
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