However, N.Y. Attorneys’ Time After California Counsel Retained Must Be Stricken Because He Was Not Licensed In California.
In Thaunhaeuser v. TKH Zum, LLC, Case No. B321283 (2d Dist., Div. 8 Oct. 11, 2024) (unpublished), the lower court entered a $114,000 compensatory judgment against landlord and in favor of tenant under a property condition/security deposit lawsuit. Later, based on a contractual fees clause under the lease, the lower court awarded $363,696.70 to prevailing tenant, including some services which were performed by a New York attorney not licensed in California before California counsel was retained by tenant. The 2/8 DCA rejected most of landlord’s arguments on appeal, except for one which required a modification to the fee award.
Landlord argued tenant did not satisfy the mediation condition precedent provision of the lease, but the record belied this argument: tenant did send a letter asking for mediation dates as well as made a settlement offer which landlord rejected. The presence of the alternative settlement offer did not override tenant’s attempts to engage in mediation.
However, the fees of the New York attorney were ordered stricken for work postdating the retention of California counsel. New York counsel was actively advising tenant such that he needed to be licensed and failed to seek pro hac vice admission, with the appellate panel expressing doubt that California Supreme Court’s Birbrower, 17 Cal.4th 119 opinion allowed a non-licensed attorney in a firm with a California attorney to avoid the problem and also indicating doubt that a non-licensed attorney could avoid problems by associating in with a California attorney in a lawsuit. A remand was required to modify the judgment to exclude the non-compensable time.
The size of the award was no abuse of discretion: 375 hours for four years of litigation was reasonable, with $750 per hour being acceptable for the California retained counsel who had many years of litigation experience in the landlord/tenant area.
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