In Bronshteyn v. Department of Consumer Affairs, published September 17, 2025 ,the Second District Court of Appeal, Division 8 affirmed an attorney fee award against the defendant department. The plaintiff, an employee of the department, sued the department under FEHA for failure to accommodate or engage in an interactive process, disability discrimination, and failure to prevent discrimination regarding her fibromyalgia. The case was a “long-shot,” and the department fought the case hard from the start. The department declined to engage in early settlement negotiations, opposed complaint amendment, and pursued an unsuccessful demurrer and summary adjudication motion. Both sides engaged in contentious discovery. A six-week trial took place, resulting in a verdict of $3,324,262 in damages. The department unsuccessfully moved for new trial and appealed. The plaintiff moved for attorney fees. Both sides submitted fee expert declarations. The trial court rejected the plaintiff’s expert declaration as inadequate, and rejected several of the contentions in the defense expert’s declaration. The court continued the hearing for further briefing and for an exchange of expert reports and supplemental declarations. The plaintiff submitted additional declarations from counsel and her expert substantiating her counsel’s claimed hours and rates. The department filed a supplemental expert brief but did not submit further expert evidence. After the second hearing, the trial court issued a 13-page decision. It accepted the plaintiff’s factual showing on rates and hours. It justified awarding rates at the higher end of Los Angeles rates based on the quality of lawyering it observed. The court found the number of hours were due to the hard-fought litigation. It awarded a 1.75 multiplier for the work before the verdict and a 1.25 enhancement for hours after the verdict, based on counsel taking the case on a contingency basis, that work precluded other employment, and that success was a roll of the dice. It awarded $4,889,786.03 in fees.
The appellate court concluded that the trial court did not abuse its discretion in awarding the fees. The trial court was entitled to reject the defense expert’s declaration on fees, which was more akin to a brief than an expert opinion, and to trust its own observations and experience. The trial court was entitled to approach the department’s attack on the number of hours with skepticism, because the department did not disclose the number of hours its lawyers worked, which would have been a logical and objective factor for evaluating the plaintiff’s claims. The court rejected attacks on the number of hours that were raised for the first time on appeal. The court rejected the argument that the trial court abused its discretion in applying a multiplier because the fee would come from public funds. The appellate court presumed the trial court weighed the taxpayer burden factor in the balance, regardless of whether the court stated so in its decision. The multipliers applied recognized the risk both before the verdict was entered and afterward. The appellate court noted, “Filing a flood of unselective and fruitless motions can be counterproductive if the plaintiff ultimately prevails, for the bill for that flood will wash up on the
defense doorstep. Then the court may look with a wary eye at defense complaints about a whopping plaintiff’s bill.”
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