Defense Litigating Long And Hard, If Unsuccessful, Can Anticipate Large Fee Award Against It.
Bronshteyn v. Dept. of Consumer Affairs, Case No. B329890, et al. (2d Dist., Div. 8 Sept. 17, 2025) (published) illustrates how a defendant litigating hard by bringing multiple unsuccessful motions, prosecuting an unsuccessful merits appeal, and rejecting a lower CCP section 998 offer by far below the ultimate jury verdict will be subject to a sizable fee award under a discretionary fee-shifting statute. It also shows that a detailed fee petition and selection of the right fee expert can justify a high award.
Plaintiff brought a risky FEHA case, with the representation being on a contingency basis. Defendant litigated long and hard, not prevailing on several pretrial motions and rejecting a $160,000 998 offer for fees/costs from plaintiff. Plaintiff won a $3,324,262 jury damages award, losing the subsequent merits appeal. Plaintiff moved for fees, more than six years from initiation of the case, and was awarded $4,889,786.03 based on detailed fee substantiation provided by plaintiff after the trial court desired supplemental briefing and expert testimony. The fee moving papers included detailed time substantiation; an hourly rate fee declaration by plaintiff’s expert; supporting declarations describing the lawyers’ experience; and detailed billing information during the entire case, with the defense not really attacking the lodestar number and not providing any supplemental defense fee expert report. The trial court credited plaintiff’s expert over the defense expert. The fee award included a 1.75 multiplier for pretrial/trial work and a 1.25 multiplier for post-verdict work.
The 2/8 DCA affirmed, with colorful quotes from author Justice Wiley on how the defense can expect a large fee award when it unnecessarily litigates zealously and on the broad discretion accorded to the lower court in awarding fees after observing excellent work by the winning counsel. Other takeaways from the opinion are: (1) smaller firm attorneys may be entitled to rates like attorneys at larger firms where their work effort is exemplary; (2) when the trial court orders supplemental expert information, either provide it or face potentially adverse consequences (the defense did not, which led to the conclusion the plaintiff’s expert was more credible); (3) the Ketchum opinion does not preclude a multiplier in a discretionary fee-shifting case; and (4) employment preclusion/experience and skill of counsel can justify multipliers.