Metropolitan News-Enterprise


Wednesday, June 9, 2021


Page 1


Court of Appeal:

Attorney-Fee Award Not Limited to What Insurer Paid

Bigelow Says $140-Per-Hour Fee Paid by Defendant’s Insurance Company to Lewis Brisbois Did Not Limit Award by Superior Court Judge to That Rate; Affirms Award Based, in Part, on $600 an Hour


By a MetNews Staff Writer


The Court of Appeal for this district has affirmed a $146,010 award of attorney fees to a defendant in a malicious prosecution action who prevailed on his anti-SLAPP motion, rejecting the plaintiff’s contention that the amount was unreasonably high because the defendant’s lawyers at Lewis, Brisbois, Bisgaard & Smith LLP had actually been paid by their client’s insurer at a lower hourly rate than the judge used in his computation..

Presiding Justice Tricia A. Bigelow of Div. Eight wrote the opinion, which was filed Monday and was not certified for publication. The fees were set by Los Angeles Superior Court Judge Craig D. Karlan on remand from the Court of Appeal which, in 2018, reversed an order denying Santa Monica attorney Thomas McCullough Jr.’s anti-SLAPP motion.

That motion came in response to a suit by Lawrence Pasternack who had been the defendant in a suit brought by McCullough on behalf of a client.

Karlan’s Ruling

Karlan rejected Pasternack’s position that an award must be based on an hourly rate of $140 because that’s what the insurer paid.  “The lodestar method provides that fees may be awarded for the reasonable value of that tune, not the actual rate paid,” the judge said.

He found veteran attorney Roy G. Weatherup’s $600 an hour rate to be reasonable and set payment at $96,240 for 160 hours of work on the case, including the appeal. However, he declined to apply that rate to a second partner in the firm, Caroline E. Chan, saying, without questioning her skills, “that the nature and complexity of the legal issues on appeal does not warrant” payment at $600 an hour for two partners, and lowered her hourly rate to $250.

Weatherup had explained that a $140-an-hour rate was accorded to the insurance company as part of a package deal entailing hundreds of cases being directed to the firm. Karlan said that “$140 per hour is not the market rate for experienced appellate lawyers in Los Angeles County and the Court exercises its discretion to not so narrowly focus on the ‘package rate’ agreed to in this matter.”

Bigelow’s Opinion

“It is well established,” Bigelow wrote, “that an attorney who accepts a reduced rate from a client is not precluded from seeking a reasonable hourly rate pursuant to the lodestar method” in recovering from the client’s adversary where fee-shifting takes place.

But the cases establishing that are inapposite, Pasternack insisted, because none of them involved the circumstance where fees, fixed in advance, had already been paid to the lawyers. There was no need, given that Lewis Brisbois had already received its fees, to determine what a reasonable amount would be to compensate it, he argued.

“We are not persuaded,” Bigelow responded. “None of the cases limit their holding in this way.”

No Unconscionability

There was nothing unconscionable about the fee, Bigelow said, elaborating:

“The record shows Lewis Brisbois submitted evidence regarding the hours expended and reasonable rates for the work done….The trial court was entitled to rely on Lewis Brisbois’s declarations to determine the reasonable rates for experienced attorneys in Los Angeles County….

“The trial court thoroughly examined the record and reduced both the time claimed and the hourly rate for one of the partners.”

The case is Pasternack v. McCullough, B302137.

Attorneys on appeal were Gregory M. Hatton, Arthur R.  Petrie, II and John A. McMahon of Hatton, Petrie & Stackler for Pasternack and Weatherup, Chan, and Bartley L. Becker of Lewis Brisbois for McCullough.

Weatherup Comments

Weatherup commented yesterday:

“My client, Tom McCullough, and I, are very pleased by the Court of Appeal decision affirming the fee award.  Lawrence Pasternack has filed several malicious prosecution actions against Mr. McCullough, all of which were found to lack merit. After more than 10 years, we are pleased that they are over.”

He added:

“We will submit a request for publication to the Court of Appeal.”

Bigelow also wrote the Feb. 6, 2018 opinion reversing the denial of McCullough’s anti-SLAPP motion by Los Angeles Superior Court Judge Nancy L. Newman, Bigelow said: “We conclude the denial of Pasternack’s nonsuit motion in the underlying collection ease demonstrates the collection claim was legally tenable and thus, Pasternack has failed to establish a probability of prevailing on his malicious prosecution claim.”


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