An Attorney Accepting A Reduced Rate From A Client Is Not Precluded From Seeking A Reasonable Hourly Rate Pursuant To The Lodestar Method.
In Pasternack v. McCullough, Case No. B302137 (2d Dist., Div. 8 June 7, 2021) (unpublished), prevailing defendant on a special motion to strike was awarded $146,010 out of his requested $330,420 in attorney fees. (Code Civ. Proc. §425.16(c)(1).) Plaintiff appealed – arguing that there was no need for the trial court to set a reasonable hourly fee in this case because the fee award should have been limited to the significantly lower amount defendant’s insurer paid for his defense.
The 2/8 DCA disagreed – finding the prevailing lodestar adjustment method to be the proper method for determining fees in this case as the SLAPP fee provisions do not provide for restrictions on how the fees are to be calculated. (Ketchum v. Moses, 24 Cal.4th 1122, 1136 (2001) [our Leading Case No. 8].) Additionally, the panel found that California law is well-established in allowing an attorney who accepts a reduced rate from a client to seek a reasonable hourly rate pursuant to the lodestar method. (Chacon v. Litke, 181 Cal.App.4th 1234, 1260 (2010) [discussed in our January 19, 2010 post]; PLCM Group, Inc. v. Drexler, 22 Cal.4th 1084 (2000) [our Leading Case No. 1].)
In this case, the trial court properly determined the market rate for defendant’s attorneys based on their experience and complexity of the case instead of narrowly focusing on the “package rate” defendant’s attorneys accepted from defendant’s insurer in this matter. Additionally, the trial court thoroughly examined the record and reduced both the time and hourly rate claimed by one of defendant’s attorneys, which significantly reduced the award from the original request, and clearly demonstrated that the trial court exercised its discretion.
BLOG UPDATE: We can now report that Pasternack was certified for publication on June 25, 2021.
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