Bronshteyn v. Dept. of Consumer Affairs

Facts

The statutory frame. The fee provision is Government Code section 12965, subdivision (c)(6), which authorizes the trial court “in its discretion . . . [to] award to the prevailing party […] reasonable attorney’s fees and costs . . . .” The court italicized the discretionary language, and stated the objective the provision serves: “The goal is a fair market value fee that assures counsel can staff meritorious actions that enforce the statute.” (Bronshteyn v. Dept. of Consumer Affairs (Sept. 17, 2025, B329890, B327487) 114 Cal.App.5th at p. 546, citing Horsford v. Bd. of Trustees of Cal. State Univ. (2005) 132 Cal.App.4th 359, 394.) That word — discretion — does the decisive work later in the opinion.

The underlying case and its risk. In January 2019 Diana Bronshteyn, “whom a doctor had diagnosed with fibromyalgia,” sued the Department under the Fair Employment and Housing Act, section 12900 et seq., “for failure to accommodate, failure to engage in an interactive process, disability discrimination, and failure to prevent discrimination.” (Bronshteyn, supra, 114 Cal.App.5th at pp. 539–540.)

The court’s assessment of the case as filed is blunt and, for practitioners, unusually valuable: “The case was a long shot.” Lead counsel Jean Hyams admitted a “significant risk that the jury might be swayed by the fact that the [Department] permitted [Bronshteyn] to take a long leave of absence and, on paper at least, offered her all of the accommodations she had previously requested.” From her disability-rights practice, Hyams knew that “women with fibromyalgia are often stigmatized and stereotyped as exaggerating or making up their symptoms,” and she conceded that the doctor’s notes supporting the leave requests were “ambiguous” — which, the Court of Appeal adds in its own voice, compounded the risk in taking the case. (Bronshteyn, supra, 114 Cal.App.5th at p. 540.)

The litigation history the court treats as evidence. The opinion recounts the procedural history in short declarative sentences, and the rhetorical effect is deliberate. “The Department fought the case hard from the start.” Co-counsel approached the Department about settlement and mediation in 2019; “[t]he Department refused to discuss settlement.” In January 2020 the Department refused to stipulate to a first amended complaint “very similar to a first amended complaint it had previously stipulated she could file,” forcing a motion for leave that was granted in July 2020 — “[a] defense stipulation would have been reasonable and would have avoided this costly and unproductive motion practice.” The Department then demurred, unsuccessfully: “[t]he demurrer litigation was time-consuming and accomplished nothing.” (Bronshteyn, supra, 114 Cal.App.5th at p. 541.)

Summary adjudication was denied in July 2021. Discovery “was contentious,” with multiple sets of written discovery and multiple ex parte applications and motions to compel on both sides. In June 2022 Bronshteyn served a Code of Civil Procedure section 998 offer of $600,000 plus reasonable fees and costs; “[t]he Department rejected the Code of Civil Procedure section 998 offer and did not counter.” Trial ran six weeks in the summer of 2022. “The jury found for Bronshteyn on all counts. Its verdict was $3,324,262 in damages. This sum is more than five times greater than Bronshteyn’s section 998 offer.” Motions for judgment notwithstanding the verdict and for a new trial were denied, and the Department’s appeal from the judgment failed in 2025. “By now the case was more than six years old.” (Bronshteyn, supra, 114 Cal.App.5th at p. 541; see Bronshteyn I, supra, B325678, cited at 114 Cal.App.5th at p. 539.)

The fee motion. Counsel sought a lodestar of $2,987,583.11, built on requested rates running from $1,200 an hour, the highest requested rate, down to $350 for bar-certified law students and $225 for paralegals and legal assistants. (Bronshteyn, supra, 114 Cal.App.5th at pp. 541–542.) The supporting showing is a template worth copying: more than 3,000 hours documented in “contemporaneous and precise timesheets recorded in six-minute intervals, with breakdowns by day and person”; declarations on litigation backgrounds, past fee awards, division of labor and anti-duplication measures; a voluntary 5 percent reduction to account for clerical work and travel time; comparative declarations from other Los Angeles employment attorneys; and a 22-page declaration from a retained expert who, in the court’s summary, opined that the requested rates were well within the range of the noncontingent market rates charged by Los Angeles area attorneys of reasonable comparable experience, skill, and reputation for comparable services. (Id. at p. 542.)

Bronshteyn requested a 2.0 multiplier on five grounds: contingency, public-interest value, difficulty of the legal questions, preclusion of other work, and the result. (Bronshteyn, supra, 114 Cal.App.5th at p. 542.) The Department called the lodestar “grossly excessive” — rates too high, work descriptions too vague, too much “intra-office conferencing,” travel time, and over-litigation — and characterized the case as “garden-variety.” (Id. at p. 542.) One omission proved costly: “Although the Department suggested Bronshteyn’s lawyers spent too much time on the case, the Department did not reveal how many hours its counsel devoted to the matter.” (Id. at p. 542.)

Procedural history

The trial court did not rule on the papers. It issued “a thoughtful tentative opinion that concluded more information was needed,” faulted Bronshteyn’s comparative declarations because “only one of these declarations attached actual fee awards from other cases” while “the others were merely conclusory,” and warned her against double-counting the contingency factor in both the rate and the multiplier. (Bronshteyn, supra, 114 Cal.App.5th at pp. 542–543.)

It then dismantled the defense expert’s declaration, and the Court of Appeal recounts five of the problems: the premise that “small firms do not charge hourly rates in the same range as larger law firms” (answered by “[t]he hourly rate to set is based on a myriad of factors, but size of firm is not one the court believes any firm touts”); the presumption that contingency work incentivizes overbilling (answered by the observation that “plaintiff’s counsel in a contingency case has every incentive not to do unnecessary work”); reliance on hourly rates from other cities; a flat four percent annual escalator applied to past awards, dismissed as “too simplistic” because even if it captured inflation “it failed to account for changes due to experience, such as winning a major case”; and the view that contingency should affect neither the lodestar nor an enhancement, rejected because “[t]he contingent nature of the fee must be incorporated into the calculation.” (Bronshteyn, supra, 114 Cal.App.5th at pp. 543–544.)

Noting that the defense expert “actually has only minimal disputes with the number of hours,” and that the amount in controversy was “somewhere between $1.2 million and $3.5 million (given the differences in lodestar calculations and the multiplier),” the court continued the hearing for supplemental briefing, an exchange of expert reports, and depositions of the opposing fee experts. Bronshteyn supplemented. “The Department filed a supplemental opposition brief but, in the wake of the court’s critique, submitted nothing further from its fee expert.” (Bronshteyn, supra, 114 Cal.App.5th at p. 544.)

After a second hearing the court granted the motion in a thirteen-page ruling. (Bronshteyn, supra, 114 Cal.App.5th at p. 544.) It found the plaintiff’s expert declarations “the most compelling analysis in the record of a proper hourly rate for the Los Angeles area” and that expert more credible than the defense’s. It excluded contingency from the rate itself — that factor “should either be reflected in the hourly rate or the multiplier, not both and not neither” — and awarded non-contingent rates at or just below the amounts requested, topping out at $1,100 for Hyams and $1,000 for Musell, Levy, Vinick and Burrell, at the higher end of the market because “[t]he quality of lawyering was high; far beyond what the court would expect of an average lawyer—even with the years of experience the lawyers here exhibited.” (Id. at p. 545.)

On hours, the court found the Department “did not really attack” the number claimed, describing that posture as “a recognition from the defense that, yeah, we [the defense] didn’t settle, and therefore, yeah, you [Bronshteyn] did have to litigate and yeah, you [Bronshteyn] did have to bill that time . . . .” (Bronshteyn, supra, 114 Cal.App.5th at pp. 545–546.) The minor disputes over travel time and conferences “have been resolved by Musell’s 5 percent cut across all hours requested by her, as well as an extraordinary voluntary 50 percent cut for all hours incurred for supplemental briefing.” (Id. at p. 545.)

The multiplier rested on two factors — contingency and preclusion of other employment — with the court observing that “[P]laintiff’s counsel rolled the dice and the dice could well have come up against them. Had that occurred, counsel would have been left with years of work and nothing (financially) to show for it.” It awarded “a 1.75 multiplier for fees incurred up to and including the jury verdict, and a 1.25 enhancement for hours worked after the verdict.” “The total fee award was $4,889,786.03.” The Department appealed. (Bronshteyn, supra, 114 Cal.App.5th at p. 545.)

Issue

Whether the trial court abused its discretion in (1) setting hourly rates at the upper end of the Los Angeles market on the strength of the plaintiff’s fee expert and the judge’s own observation of counsel’s work; (2) accepting the claimed hours over appellate arguments about block billing, over-litigation and administrative work; and (3) applying a 1.75 multiplier through verdict and a 1.25 multiplier to post-judgment fee litigation, including against the objections that counsel was not truly precluded from other work, that the award is payable from public funds, and that post-judgment work carried no contingent risk. (Bronshteyn, supra, 114 Cal.App.5th at pp. 546–548.)

The standard framed the answer: “We review fee awards for abuse of discretion. We will not disturb the trial court’s judgment unless it is clearly wrong. We accept the trial court’s factual findings supported by substantial evidence, and we imply findings to support the court’s order. The burden is on the objector to show error.” (Id. at p. 546, citing Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488 and Rojas v. HSBC Card Services Inc. (2023) 93 Cal.App.5th 860, 873.)

Holding

Reasoning

1. The framing paragraph is the opinion’s thesis. Before any facts, the court states the economics of fee-shifting litigation: “When the plaintiff files a case with the prospect of recovering attorney fees, the defense is fully entitled to fight hard. But the defense does so knowing it might end up paying for all the work for both sides. 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.” (Bronshteyn, supra, 114 Cal.App.5th at pp. 539–540.) Everything that follows — the itemized recitation of the refused stipulation, the failed demurrer, the rejected section 998 offer — is the application of that opening.

2. Rate-setting is a judgment about quality, and the trial judge is the best-positioned witness. The court’s defense of the rate award is unusually candid about what a fee ruling actually is: “Attorney rates are prices. Price differences in a snapshot of time generally reflect quality differences. The trial judge with the ringside seat is situated to evaluate the quality of a trial lawyer’s performance.” (Bronshteyn, supra, 114 Cal.App.5th at p. 546.) Trial judges “see an endless procession of lawyers and lawyer fee motions,” and “[a]fter years of experience, trial judges can develop an empirical sense of the prevailing market conditions and the range of individual performances.” The permissive verb is immediately qualified, and the qualification matters: “Some talented and hardworking lawyers can do brilliant work from the very outset of their careers. Other lawyers are vastly experienced but unremarkable. Some attorneys are miserable. The seasoned trial judge is the eyewitness to this parade.” (Id. at pp. 546–547.)

3. Fee experts get Sargon treatment. The counterweight to the appellant’s expert evidence is Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 769–772. Fee-case expert opinions “can suffer from all the problems that prompted our Supreme Court” to decide Sargon, which “emphasized trial courts have a substantial gatekeeping responsibility to exclude expert opinions not based on sound logic.” That gave this judge “an ample basis for disregarding the defense expert ‘declaration,’ which was more of an argumentative legal brief than an objective analysis of a reliable data set by an economist.” (Bronshteyn, supra, 114 Cal.App.5th at p. 547.) The point generalizes: a fee expert who argues rather than measures is vulnerable on gatekeeping grounds, whichever side retains him.

4. Ceiling versus base. The Department’s most portable rate argument was that rates paid to attorneys “at the top of their field” should function as a ceiling rather than a base. (Bronshteyn, supra, 114 Cal.App.5th at p. 546.) The court rejected it on the record rather than by rule: “Nor was the court required to use these hourly rates as a ceiling instead of a base. The court personally observed the skill and effectiveness of Bronshteyn’s counsel,” and had found the “quality of lawyering was high; far beyond what the court would expect of an average lawyer—even with the years of experience the lawyers here exhibited.” (Id. at p. 545.) The trial court’s own quality finding, made from observation, is what carried the top-of-market rates.

5. On hours, the appeal failed on preservation — and on an evidentiary inference. Two independent moves defeat the hours challenge. First, an adverse inference: “The trial court was entitled to approach the Department’s attack on the number of hours with skepticism, for the Department did not disclose the number of hours its lawyers worked,” data that “would have supplied a logical and objective factor for evaluating Bronshteyn’s claims” and that the Department “chose to omit . . . which presumably did not support its argument,” citing CACI No. 203. (Bronshteyn, supra, 114 Cal.App.5th at p. 547.) Second, forfeiture: the defense expert had objected “only to travel time, conferences, and nine hours of ‘vague’ trial preparation,” and the court found “[t]he total dispute about hours was about equivalent to the 5 percent cut Bronshteyn’s counsel voluntarily applied to their hours,” so the block-billing, over-litigation and administrative-work theories were new on appeal and forfeited. (Id. at pp. 547–548, citing Hewlett-Packard Co. v. Oracle Corp. (2021) 65 Cal.App.5th 506, 548.)

6. Public funds do not immunize a public employer from a multiplier. This is the holding with the widest reach. The court accepted that “[t]he Supreme Court long ago identified taxpayer burden as a relevant factor,” citing Serrano v. Priest (1977) 20 Cal.3d 25, 49 — and then read Serrano for what it did as much as what it said: it “did not specify when and to what extent a court should consider the taxpayer burden factor in setting an attorney fee award,” but “[i]t did, however, affirm an award against government defendants applying a positive multiplier to the lodestar amount.” (Bronshteyn, supra, 114 Cal.App.5th at pp. 548–549.) Silence in the trial court’s ruling was not error: “We presume this conscientious judge weighed the taxpayer burden factor in the balance. Failure expressly to mention a factor does not mean the trial court abused its discretion. Trial courts are not required to issue any statement of decision with regard to a fee award. Appellate courts indulge all presumptions to support the judgment as to matters on which the record is silent.” (Id. at p. 549, citing Ketchum v. Moses (2001) 24 Cal.4th 1122, 1140.)

7. Ketchum is confined to mandatory fee statutes. The Department’s strongest doctrinal card was Ketchum: the court there “held it was error to add a contingency multiplier when, due to a ‘mandatory’ fee statute, a fee recovery was no longer contingent.” (Bronshteyn, supra, 114 Cal.App.5th at p. 549, citing Ketchum, supra, 24 Cal.4th at p. 1142.) The distinction the court drew is textual and consequential: “the different statute involved in this case is subdivision (c)(6) of section 12965, which provides the court may award fees ‘in its discretion.’ These fees were not mandatory. They were always contingent—until the trial court issued its final fee order.” (Ibid.) On that reasoning, FEHA fee recoveries never lose their contingent character before the fee order issues, which is why post-judgment work can still be enhanced.

8. Graham supports a lower — not a zero — multiplier on fee litigation. The Department also cited Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 582, and the court found it “relevant, but it contravenes the Department’s argument.” Graham holds that “the enhancement justified for fees in the underlying litigation may differ from the enhancement warranted in the fee litigation, and that a lower enhancement, or no enhancement, may be appropriate in the latter litigation,” because “[t]he fact that the risk of fee litigation is generally less than the risk of litigation on the merits of the suit justifies a lower attorney-fee multiplier for the former . . . .” (Bronshteyn, supra, 114 Cal.App.5th at p. 549.) The court said only that the step-down from 1.75 to 1.25 “is consistent with Graham,” and it was supported by a finding of residual risk: “[o]f course the motion for a new trial/jnov might have been granted and the appeal may well turn out to be successful.” (Id. at p. 549.)

9. What the court declined to reach. The Department advanced seven multiplier arguments; the court considered three, declining the other four “because they either mischaracterize the trial court’s order or misstate the law.” The preclusion-of-other-employment finding was resolved as a credibility question — Hyams and Musell swore to it, “[t]here was no contrary evidence,” and “[w]e do not revisit this credibility question.” (Bronshteyn, supra, 114 Cal.App.5th at p. 548.)

Significance

Three propositions will be cited well beyond these facts. The first is that a fee award payable from public funds does not preclude a lodestar enhancement — a proposition public-entity defendants have long pressed and that Bronshteyn answers by reading Serrano’s own disposition rather than its dicta. (Bronshteyn, supra, 114 Cal.App.5th at pp. 548–549.) The second is the reading of Ketchum: because section 12965, subdivision (c)(6) makes FEHA fees discretionary, the recovery stays contingent until the fee order, so the mandatory-statute rationale that defeated the enhancement in Ketchum does not apply. (Id. at p. 549.) The third is the express approval of a two-tier multiplier — a higher figure through verdict and a lower figure for the fee litigation — as the calibration Graham invites rather than an inconsistency to be explained away. (Id. at p. 549.)

Alongside those holdings sits the opinion’s evidentiary teaching, which is where most fee motions are actually won: the plaintiff’s showing had contemporaneous six-minute time records, per-person and per-day breakdowns, comparative rate declarations, a substantial expert declaration, and voluntary reductions (Bronshteyn, supra, 114 Cal.App.5th at pp. 542–546), while the defense showing lacked the one data set that would have made its over-litigation argument testable — its own hours (id. at p. 542, 13).

Two limits deserve emphasis. This is an abuse of discretion affirmance, not a holding that these rates or these multipliers are correct as a matter of law; the court says repeatedly that it defers, will not “second-guess,” and will not revisit credibility. (Bronshteyn, supra, 114 Cal.App.5th at pp. 546–548.) And the hours ruling turned substantially on forfeiture (id. at p. 548), so it supplies little guidance on the merits of block-billing or administrative-task objections properly preserved below.

The award also has to be read against the case’s economics: a $3,324,262 verdict, a rejected $600,000 section 998 offer, and a $4,889,786.03 fee award — a fee that exceeds the verdict. (Bronshteyn, supra, 114 Cal.App.5th at pp. 541–546.) The opinion does not treat that ratio as remarkable, and its opening paragraph explains why: the hours were a function of how the case was defended.

A currency note: the opinion was certified for publication on the face of the slip, and the official citation has since issued at 114 Cal.App.5th 537; all pinpoints here are to the official reports. Confirm subsequent history with a citator before relying on the decision.

Key quotes

“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.” (Bronshteyn v. Dept. of Consumer Affairs (Sept. 17, 2025, B329890, B327487) 114 Cal.App.5th at p. 539.)

“Attorney rates are prices. Price differences in a snapshot of time generally reflect quality differences. The trial judge with the ringside seat is situated to evaluate the quality of a trial lawyer’s performance.” (Id. at p. 546.)

“These fees were not mandatory. They were always contingent—until the trial court issued its final fee order.” (Id. at p. 549.)

“It did, however, affirm an award against government defendants applying a positive multiplier to the lodestar amount.” (Id. at p. 549.)

“The trial court was entitled to approach the Department’s attack on the number of hours with skepticism, for the Department did not disclose the number of hours its lawyers worked.” (Id. at p. 547.)

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Practice pointer

Open questions

How much weight must a trial court give taxpayer burden? The court held only that Serrano “did not specify when and to what extent a court should consider the taxpayer burden factor,” and that silence in the ruling is presumed to reflect weighing rather than disregard. (Bronshteyn, supra, 114 Cal.App.5th at pp. 548–549.) Whether a public entity can ever show that the factor was actually ignored, on a record where the court says nothing, is left unresolved.

Preserved hours objections. Because the block-billing, over-litigation and administrative-work arguments were forfeited (Bronshteyn, supra, 114 Cal.App.5th at p. 548), the opinion says nothing about their merits. A defendant who raises them in the trial court with expert support is not governed by this decision on those points.

The four unaddressed multiplier arguments. Four of the Department’s seven contentions were not considered because they “either mischaracterize the trial court’s order or misstate the law.” (Bronshteyn, supra, 114 Cal.App.5th at p. 548.) They are not identified, so the opinion cannot be read to have rejected any particular multiplier theory on its merits.

Post-judgment enhancement after the appeal ends. The 1.25 enhancement was justified by residual risk while a new trial motion, a JNOV motion and an appeal were live. (Bronshteyn, supra, 114 Cal.App.5th at p. 549.) Whether any enhancement is available for fee work performed after all merits risk has been extinguished — the situation Graham contemplates when it says “no enhancement . . . may be appropriate” — is not decided.