Wednesday, October 26, 2016
Panel Upholds $100,000 Award to Pasternak for Fees to His Attorney
By a MetNews Staff Writer
The Court of Appeal for this district has affirmed a $100,000 attorney fee award for former State Bar President David Pasternak’s successful defense of an appeal in a receivership matter.
Div. One, in an unpublished opinion Monday, affirmed the award by Los Angeles Superior Court Judge Mark A. Juhas. Pasternak is represented in the matter by former County Bar President Rex S. Heinke, and by Jessica M. Weisel, of Akin Gump Strauss Hauer & Feld.
The receivership grew out of the divorce of Araceli and Brent Hogan, which began in 2005. Because the Hogans and another couple, Paul and Edythe Ling, owned three apartment buildings together, the Lings were joined as parties.
In 2009, the trial court appointed Pasternak as receiver for the buildings. Pasternak listed the properties for sale, pursuant to court order, and eventually sold them, although one required extensive repairs prior to sale.
The receiver’s final report and account were filed in June 2011. The Lings objected to the report and account, and in January 2013, the judge granted Pasternak’s application to retain Akin Gump as outside counsel.
Three months later, the account and report were approved and the Lings appealed. The Court of Appeal affirmed, and in March of last year, Pasternak requested his fees and costs on appeal.
Juhas awarded the full amount sought, more than $23,000 in receivership fees and costs and more than $102,000 in attorney fees and costs.
Justice Jeffrey Johnson, writing for the Court of Appeal, said there was no error in the award. As an agent of the court, which had approved his selection of outside counsel, Pasternak was entitled to be compensated, the justice said.
The Lings’ counsel was incorrect in arguing that Pasternak failed to follow the procedure set forth in California Rules of Court, Rule 8.278, for claiming costs. That rule does not apply to receiverships, Johnson said, which are governed by Rule 3.1184 and the trial court order authorizing retention of outside counsel.
The justice went on to say there was substantial evidence supporting the amount of fees awarded, including Pasternak’s declaration detailing Heinke’s experience and the firm’s billing practices, as well as the bills themselves.
He distinguished People ex rel. Dept. of Transportation v. Yuki (1995) 31 Cal.App.4th 1754, which rejected a fee award based on a contingency agreement. Although Pasternak’s agreement with Akin Gump provided that no fee would be charged if the Lings prevailed on appeal, Johnson explained, it did not provide for a fee based on the amount recovered, but rather on the hours expended.
Nor, he went on to say, does the fact that Pasternak is an attorney preclude an award of receivership fees to him as well as an award of legal fees to his attorneys. Johnson also noted that it will be up to the trial court, in the first instance, to consider Pasternak’s request for fees and costs incurred in defending the latest appeal.
Bruce J. Altshuler of Altshuler and Spiro represented the Lings on appeal.
The case is In re Marriage of Hogan, B265141.
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