Filed 6/7/21 Certified for Publication 6/25/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LAWRENCE PASTERNACK,

Plaintiff and Appellant,

v.

THOMAS B. MCCULLOUGH, JR., 

et al.,

Defendants and Respondents.

 B302137

 (Los Angeles County

 Super. Ct. No. SC121723)

APPEAL from an order of the Superior Court of Los 

Angeles County. Craig D. Karlan, Judge. Affirmed.

Hatton, Petrie & Stackler, Gregory M. Hatton, Arthur R. 

Petrie, II and John A. McMahon for Plaintiff and Appellant. 

Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, 

Bartley L. Becker and Caroline E. Chan for Defendants and 

Respondents.

_____________________________
2

Lawrence Pasternack sued Thomas McCullough, Jr. and 

his law firm (collectively, McCullough) for malicious prosecution. 

In 2018, we reversed an order denying McCullough’s special 

motion to strike under the anti-strategic lawsuits against public 

participation (anti-SLAPP) statute. (Code Civ. Proc., § 425.16.)

1

In our disposition, we ordered the trial court to issue a fee award 

pursuant to section 425.16, subdivision (c)(1), which entitles a 

prevailing defendant on a special motion to strike to recover his

attorney fees and costs. This appeal arises from the resulting 

attorney fees award of $146,010 to McCullough. Pasternack’s 

primary dispute with the award is that the trial court 

erroneously ordered him to pay an hourly rate for attorney fees 

that was greater than what was actually paid for McCullough’s 

defense. We conclude the trial court properly determined the 

reasonable market value of the attorneys’ services and affirm the 

attorney fees order.

PROCEDURAL BACKGROUND2

On remand from our 2018 decision, McCullough moved for 

entry of judgment and sought attorney fees in the amount of 

$330,420. Lewis, Brisbois, Bisgaard & Smith LLP (Lewis 

Brisbois) represents McCullough in these proceedings. The Lewis 

Brisbois attorneys presented declarations and a time chart 

1 All further section references are to the Code of Civil 

Procedure unless otherwise specified.

2 We need not repeat the facts underlying the malicious 

prosecution case against McCullough. They are extensively 

discussed in our previous opinion, Pasternack v. McCullough

(Feb. 6, 2018, No. B272097) [nonpub. opn.]. 
3

showing they expended over 500 hours on the action and attested 

their market rates ranged from $300 to $600 per hour. 

Pasternack opposed McCullough’s fee motion, arguing the 

hours claimed were excessive and disputing the amount of the 

hourly fees. He submitted a letter from Roy Weatherup, 

McCullough’s lead counsel on appeal. Weatherup explained 

McCullough’s defense was paid by his insurer at a rate of $140 

per hour; Pasternack’s lawsuit against McCullough was part of a 

block of hundreds of cases in which Lewis Brisbois gave a volume 

discount. 

Pasternack also submitted an expert declaration from a 

former Lewis Brisbois partner explaining why insurance defense 

firms accept lower hourly rates in exchange for large volumes of 

case assignments from insurance companies. He asserted the 

agreed-upon rates are not “below market” because they are a 

product of an arms-length negotiation. These lower rates are 

profitable for the law firm because there is no measurable risk of 

nonpayment and such an arrangement serves as a gateway for 

future business. Insurance clients are courted by defense firms, 

in part because a defense firm becomes efficient in handling 

similar cases by building up resources -- such as standard briefs -

- from prior similar cases. In this case, for example, Weatherup 

had extensive experience in anti-SLAPP matters and the issue 

raised in the prior appeal. 

The trial court granted McCullough’s attorney fees motion 

by order dated August 28, 2019 and awarded McCullough 

$146,010 in fees using the lodestar method. It struck time that 

was billed for activity unrelated to the motion to strike and that 

was “block billed” or failed to specify the tasks accomplished. The 

court further found “the nature and complexity of the legal issues 
4

on appeal [did] not warrant 528.1 hours of work performed by two 

partners billing at the rate of $600.” Thus, the court not only 

reduced the hours claimed by the attorneys but also reduced the 

hourly rate requested by one of the partners from $600 to $250 

per hour. 

The trial court declined to adopt Pasternack’s suggested 

market rate of $140 per hour for each attorney. The court 

explained, “First, $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, especially since the 

specific rate for handling anti-SLAPP appeals remains unclear; 

neither [Pasternack’s attorney nor the expert presented] 

sufficient information for the Court to conclude that $140 is the 

prevailing market rate for anti-SLAPP appeals in the insurance 

defense setting. Second, the Court finds the reduced amount 

awarded herein fully compensates Defendants for their work in

this matter in light of Defendants’ extensive prior experience 

handling appeals involving the ‘interim adverse judgment rule.’ ” 

Pasternack moved for reconsideration of the fee award, 

presenting additional evidence to show the prevailing market 

rate for anti-SLAPP appeals in the insurance defense setting was 

$140 per hour. Based on the trial court’s previous determination 

of the hours reasonably expended on the anti-SLAPP motion and 

a $140 per hour market rate, Pasternack calculated the total 

attorney fees to be $49,126. The trial court denied the motion for 

reconsideration and Pasternack timely appealed. 
5

DISCUSSION

The primary issue on appeal is whether the trial court 

erred when it applied hourly rates to its lodestar analysis that 

exceeded the hourly rate actually paid by McCullough’s insurer 

for his defense. Relying on cases not involving attorney fees, 

Pasternack contends prevailing parties may not recover more 

than the actual fees they paid under a “paid in full” or “make 

whole” rule.3 We are not persuaded. 

We review a trial court’s fee award using an abuse of 

discretion standard. (Hjelm v. Prometheus Real Estate Group, 

Inc. (2016) 3 Cal.App.5th 1155, 1177.) We conclude the trial 

court did not abuse its discretion in this case.4 It is well 

3 We decline to follow the non-attorney-fees cases cited by 

Pasternack. They are distinguishable on subject matter alone. 

(See Parnell v. Adventist Health System/West (2005) 35 Cal.4th 

595 [hospitals may not collect from a third party more than the 

amount owed by a patient’s health plan]; Howell v. Hamilton 

Meats & Provisions, Inc. (2011) 52 Cal.4th 541 [injury victims 

may not collect damages for medical bills in excess of the amount 

their health plan paid]; Hand Electronics, Inc. v. Snowline Joint 

Unified School Dist. (1994) 21 Cal.App.4th 862, 870 [damages 

limited to actual or reasonable cost of auto repair].) We find case 

law addressing attorney fees, discussed in the text, to be more 

persuasive and relevant to the issue at hand. 

4 Although Pasternack acknowledges the abuse of discretion 

standard applies to appeals of attorney fee awards, he contends 

the standard of review in this case should be de novo because his 

appeal presents a pure legal question: whether a trial court has 

any discretion to award a greater hourly fee than that bargained 

for and accepted as payment in full by the prevailing party’s 

counsel. The legal question posited by Pasternack has been 
6

established 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. “ ‘The reasonable market value 

of the attorney’s services is the measure of a reasonable hourly

rate. [Citations.] This standard applies regardless of whether 

the attorneys claiming fees charge nothing for their services, 

charge at below-market or discounted rates, represent the client 

on a straight contingent fee basis, or are in-house counsel. 

[Citations.]’ ” (Chacon v. Litke (2010) 181 Cal.App.4th 1234, 1260 

(Chacon); PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084 

(PLCM); Cal. Civil Courtroom Handbook & Desktop Ref. (2020 

ed.) Court Determination of Statutory Attorney Fees Amount, 

§ 41:30.) 

Section 425.16, subdivision (c)(1) of the anti-SLAPP statute 

entitles a prevailing defendant on a special motion to strike to 

recover his or her attorney fees and costs. “[B]ecause the antiSLAPP [attorney fee] provisions referred to attorney fees and 

costs without indicating any restrictions on how they are to be 

calculated, we accordingly presume that the Legislature intended 

courts use the prevailing lodestar adjustment method. 

[Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1136.) 

The method begins with ascertainment of the lodestar, i.e., the 

number of hours reasonably expended multiplied by the 

reasonable hourly rate. (Mountjoy v. Bank of America, N.A.

(2016) 245 Cal.App.4th 266, 271–282.) The lodestar figure may 

then be adjusted, based on factors specific to the case, to fix the 

answered by the California Supreme Court and the Courts of 

Appeal. Given this authority, we need only consider whether the 

trial court abused its discretion. 
7

fee at the fair market value for the legal services provided. 

(PLCM, supra, 22 Cal.4th at p. 1095.)

To determine the reasonable hourly rate, courts consider

the rate prevailing in the community for similar work. (In re 

Tobacco Cases I (2013) 216 Cal.App.4th 570, 582.) This market 

rate approach has been applied in cases involving in-house 

counsel, contingency fees, and pro bono work. In each of these 

cases, courts have refused to limit the market rate to the 

attorney’s fee arrangement with the prevailing party. (PLCM, 

supra, 22 Cal.4th at p. 1096; Persson v. Smart Inventions, Inc.

(2005) 125 Cal.App.4th 1141, 1172–1176 [contingency 

agreement]; Rosenauer v. Scherer (2001) 88 Cal.App.4th 260, 

284–287 [pro bono].) “Although the terms of [a fee] contract may 

be considered, they ‘do not compel any particular award.’ 

[Citations.]” (PLCM, supra, 22 Cal.4th at p. 1096.)

In PLCM, the Supreme Court affirmed a corporate 

plaintiff’s entitlement to attorney fees under the contractual 

attorney fees provision of Civil Code section 1717, even though 

the plaintiff was represented by its in-house counsel. (PLCM, 

supra, 22 Cal.4th at p. 1091.) The defendant urged the court to 

adopt a “cost-plus” approach based on a precise calculation of the 

actual salary, costs, and overhead of in-house counsel. (Id. at p. 

1096.) The court refused, concluding “the lodestar method, as 

applied to the calculation of attorney fees for in-house counsel is 

presumably reasonable, although in exceptional circumstances, 

the trial court is not precluded from using other methodologies.” 

(Id. at p. 1097.) It noted, “That is not to say that reasonable 

attorney fees under Civil Code section 1717 will not reflect many 

of the same factors considered in a cost-plus approach. Moreover, 

generally prevailing market rates necessarily take into 
8

consideration such factors as salaries, overhead, the costs of 

support personnel, and incidental expenses.” (PLCM, supra, at 

p. 1097.)

Relying on PLCM, this court previously declined to cap the 

reasonable hourly rate to what was actually paid by an insurer in 

Nemecek & Cole v. Horn (2012) 208 Cal.App.4th 641, 651 

(Nemecek). There, a client claimed a law firm was negligent in its 

representation of him in a lawsuit. The law firm tendered its 

defense to its insurer. The parties’ retainer agreement contained 

an arbitration clause and an attorney fees provision. The 

arbitrator found the law firm was the prevailing party. (Id. at 

p. 644.) The trial court confirmed the arbitration award and 

entered judgment in favor of the law firm. It also awarded 

attorney fees incurred by the law firm in filing its petition to 

confirm the arbitration award. (Id. at p. 645.)

On appeal, the client argued the trial court abused its 

discretion when it applied an hourly rate to its lodestar 

calculation that was approximately double what the insurer 

actually paid for the law firm’s defense. (Nemecek, supra, 208 

Cal.App.4th at pp. 650–651.) The client presented expert 

testimony that counsel for the law firm billed the insurer $100 to 

$215 per hour for attorney services in the arbitration. The law 

firm’s counsel sought an hourly rate based on the Laffey Matrix5

5 The Laffey Matrix is a United States Department of Justice 

billing matrix that provides billing rates for attorneys at various 

experience levels in the Washington, D.C. area and can be 

adjusted to establish comparable billing rates in other areas 

using data from the United States Bureau of Labor Statistics. 

(See Laffey v. Northwest Airlines, Inc. (D.D.C. 1983) 572 F.Supp. 

354,affd. in part & revd. in part (D.C.Cir. 1984) 746 F.2d 4, 
9

and did not disclose their actual hourly rates in the matter. 

The client urged this court to cap the attorney fee award to that 

which was actually incurred. We declined to do so. We were 

guided by the reasoning in PLCM to hold the rate paid by the 

insurer did not represent the maximum reasonable hourly rate. 

(Nemecek, supra, at p. 651.)

The court in Syers Properties III, Inc. v. Rankin (2014) 226 

Cal.App.4th 691, 702–703 (Syers), also relied on an adjusted 

Laffey Matrix to fix a reasonable hourly rate that exceeded the 

actual rate paid. There, the prevailing defendants conceded they

were represented by an insurance defense firm that charged 

discounted rates. The trial court did not request, and the defense 

attorneys did not submit, their actual rates for the trial court’s 

consideration. (Syers, supra, at p. 696.) 

The court held on appeal that “[t]here is no requirement 

that the reasonable market rate mirror the actual rate billed.” 

(Syers, supra, 226 Cal.App.4th at p. 701.) The Syers court 

rejected the plaintiff’s argument that the lodestar market rate 

determination was only meant to apply to contingency fee cases, 

not to cases in which payment is guaranteed. The court found 

there was no abuse of discretion because the lodestar method was 

appropriately used and “the trial court is in the best position to 

value the services rendered by the attorneys in his or her 

courtroom.” (Id. at p. 702.) 

The Syers court observed, “A reasonable trial court might 

determine that the ‘similar work’ or ‘comparable legal services’ 

related to insurance defense litigation, rather than to civil 

(Laffey), overruled on other grounds in Save Our Cumberland 

Mountains, Inc. v. Hodel (D.C.Cir. 1988) 857 F.2d 1516, 1525.)
10

litigation in general. Were the court to so conclude, it could view 

the relevant ‘market’ to be that of insurance defense litigation 

and litigators, rather than general civil litigation. The ‘market 

rate’ for such services might be limited accordingly. Again, we 

emphasize that such determinations lie within the broad 

discretion of the trial court. They raise a number of issues, not 

the least of which is that the prevailing plaintiff’s privately 

retained counsel in such circumstances could claim a ‘market 

rate’ reasonable fee far in excess of the ‘market rate’ reasonable 

fee that could be claimed by a prevailing opponent whose defense 

counsel was retained by an insurer.” (Syers, supra, 226 

Cal.App.4th at pp. 702–703; see also Chacon, supra, 181 

Cal.App.4th at p. 1260 [attorney fees award affirmed where the

trial court applied a market rate of $350 per hour even though

the fee agreement with the prevailing plaintiffs provided for a 

reasonable hourly rate of $300 per hour].)

Pasternack attempts to distinguish these cases on the 

ground the hourly rate in these cases was neither paid nor fixed 

in advance. Pasternack contends the courts in those cases were 

required to set a “reasonable fee” and did so using the lodestar 

method. By contrast, he argues, there is no need for the court to 

set a reasonable hourly fee in this case because the fee paid by 

McCullough’s insurer is undisputed. We are not persuaded. 

None of the cases limit their holding in this way. Indeed, Syers

expressly rejected the argument that the market rate approach 

only applied to contingency fee cases. (Syers, supra, 226 

Cal.App.4th at p. 696.) 

Neither are we persuaded by the U.S. Supreme Court cases 

cited by Pasternack. City of Burlington v. Dague (1992) 505 U.S. 

557, 563, and Perdue v. Kenny A. (2010) 559 U.S. 542, 558–559, 
11

address whether an enhancement to a lodestar is appropriate. 

Here, the trial court made no enhancement to the lodestar. It 

simply determined the market rate for each of the attorneys 

working on McCullough’s defense.

In sum, PLCM, Nemececk, Syers, and their like tell us that 

a trial court has discretion to award an hourly rate under the 

lodestar method that exceeds the rate that was actually incurred 

or paid. These cases also disclose the trial court’s wide discretion 

to consider the prevailing party’s fee agreement in awarding 

attorney fees. Here, the trial court properly determined the 

market rate for experienced appellate lawyers in Los Angeles 

County and “exercise[d] its discretion to not so narrowly focus on 

the ‘package rate’ agreed to in this matter.” 

We now turn to decide whether the trial court nevertheless 

abused its discretion because the amount it awarded shocked the 

conscience. Pasternack argues the lodestar amount calculated by 

the trial court was unreasonable and should be reversed.6 Not so. 

6 In footnote 21 of the opening brief, Pasternack contends the 

fee award should be further reduced by thousands of dollars

because these sums were improper fee enhancements or were for 

work unrelated to the anti-SLAPP motion. Pasternack has 

forfeited this argument. (Hall v. Department of Motor Vehicles

(2018) 26 Cal.App.5th 182, 193 [argument in footnote forfeited]; 

Sabi v. Sterling (2010) 183 Cal.App.4th 916, 947 [“Footnotes are 

not the appropriate vehicle for stating contentions on appeal.”].) 

Even if it were not forfeited, we reject his claim that the trial 

court abused its discretion to award an enhancement to 

Weatherup’s fee. As discussed, the trial court properly 

determined the reasonable hourly rate for work performed by

Weatherup and the other Lewis Brisbois attorneys. The trial 

court did not add an enhancement to Weatherup’s rate. 
12

The record shows Lewis Brisbois submitted evidence 

regarding the hours expended and reasonable rates for the work 

done. (Horsford v. Board of Trustees of California State 

University (2005) 132 Cal.App.4th 359, 396 [“the verified time 

statements of the attorneys, as officers of the court, are entitled 

to credence in the absence of a clear indication the records are 

erroneous.”].) The trial court was entitled to rely on Lewis 

Brisbois’s declarations to determine the reasonable rates for 

experienced attorneys in Los Angeles County. “[T]he trial court 

is in the best position to value the services rendered by the 

attorneys in his or her courtroom.” (Syers, supra, 226 

Cal.App.4th at p. 702.) 

The trial court thoroughly examined the record and 

reduced both the time claimed and the hourly rate for one of the 

partners. Indeed, “[t]he award granted was significantly reduced 

from the original request as a result of the trial court’s indication 

that it did not look favorably on the full request. Thus, it clearly 

appears that the trial court exercised its discretion. In these 

circumstances, we cannot conclude that the award of attorney 

fees shocks the conscience or suggests that passion and prejudice 

Moreover, Pasternack acknowledges in his own calculations that 

the trial court struck 6.8 hours from the 11.5 hours that 

Pasternack argued represented time billed for activities 

unrelated to the anti-SLAPP motion. The trial court could have 

reached a different conclusion as to the 4.7 hours it did not 

exclude from the fee award. It was silent on the issue. 

Therefore, “ ‘ “[a]ll intendments and presumptions are indulged 

to support [the order] on matters as to which the record is 

silent[.]” ’ ” (Wilson v. Sunshine Meat & Liquor Co. (1983) 34 

Cal.3d 554, 563.)
13

had a part in it. As such, we conclude that the trial court did not 

abuse its discretion in awarding the attorney fees that it did.” 

(Akins v. Enterprise Rent–A–Car Co. (2000) 79 Cal.App.4th 1127,

1134.)

DISPOSITION

The attorney fees award is affirmed. McCullough to 

recover his costs on appeal.

BIGELOW, P. J.

We concur:

GRIMES, J.

STRATTON, J.
Filed 6/25/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

LAWRENCE PASTERNACK,

Plaintiff and Appellant,

v.

THOMAS B. MCCULLOUGH, JR., 

et al.

Defendants and Respondents.

 B302137

 (Los Angeles County

 Super. Ct. No. SC121723)

 ORDER CERTIFYING 

 PUBLICATION 

 [No change in the judgment]

THE COURT:

The opinion in the above entitled matter was filed on June 

7, 2021, was not certified for publication in the Official Reports. 

For good cause it now appears that the opinion should be 

published in the Official Reports and it is so ordered.

____________________________________________________________

BIGELOW, P. J. GRIMES, J. STRATTON, J.