Bronshteyn v. Department of Consumer Affairs and the Potential Cost of a Vigorous Defense in California

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When Fighting Hard Backfires: Bronshteyn v. Department of Consumer Affairs and the Real Cost of a Vigorous Defense

The California Court of Appeal’s recent decision in Bronshteyn v. Department of Consumer Affairs has gotten a lot of attention, not because the plaintiff won a multimillion-dollar verdict, but because the court affirmed an almost $4.9 million attorneys’ fee award on top of it. What stands out is not some exotic legal theory or an unusual set of facts. Instead, this case demonstrates how perfectly ordinary defense decisions can lead to extraordinary financial consequences when a defendant employer ultimately loses a FEHA case.

Facts and Key Holdings

Plaintiff Diana Bronshteyn, who suffers from fibromyalgia, sued her employer—the Department of Consumer Affairs—under FEHA in 2019, claiming disability discrimination and failures to accommodate and engage in the interactive process. The Department took a hard line from day one.

The case unfolded the way many employment cases do: the defense opposed amendments, filed a demurrer, litigated a summary adjudication motion, and pushed back aggressively on discovery. Bronshteyn served a Code of Civil Procedure section 998 offer for $600,000 plus reasonable fees, and the Department declined.

A six-week trial followed, with the jury awarding Bronshteyn $3.3 million in damages. Post-trial motions failed. Then came the fee phase, where plaintiff’s counsel submitted detailed time records claiming more than 3,000 hours of work performed on contingency. The trial court accepted their market-rate hourly figures (exceeding $1,000 an hour in some instances) and applied both a 1.75 multiplier to pre-verdict hours and a 1.25 multiplier to post-verdict hours. The final attorneys’ fee award approached $4.9 million.

The Department challenged just about every component of that calculation on appeal, but the Court of Appeal upheld the award in full. The Court emphasized the trial judge’s direct observations of the attorneys’ work, the quality of plaintiff’s billing records, and the substantial risk counsel took in litigating the case for years without any guarantee of payment.

Why the Fee Award Was So High

Three factors carried most of the weight.

1. The Rates Were Supported by the Market

The plaintiff’s lawyers submitted evidence showing that top-tier employment litigators in Los Angeles routinely command premium rates. The Department’s expert suggested much lower rates but relied on non-local comparisons and glossed over the contingency risk. The trial court didn’t find that persuasive, and the appellate court saw no reason to second-guess that assessment.

2. The Hours Were Reasonably Documented

Plaintiff’s counsel kept detailed, six-minute increment time entries. The Department argued the hours were excessive or vague, but it never submitted its own billing records to show what a reasonable effort would look like. Without a meaningful comparison, the trial court’s modest across-the-board reductions were enough to satisfy the Court of Appeal.

3. The Multipliers Were Justified

Multipliers are not uncommon in contingency cases, especially where counsel takes on substantial risk. Here, the court found the case was high-stakes, complex, and demanded sustained commitment from experienced lawyers.

These Were Standard Defense Tactics—Not Outliers

What makes Bronshteyn striking is that the Department didn’t behave unusually or inappropriately. It litigated like many defendants do:

• pushing dispositive motions,
• fighting over amendments,
• engaging fully in discovery battles, and
• declining to settle early.

In other words, the Department used routine strategies that defense counsel often view as essential for building the best possible record. The Court of Appeal didn’t fault the Department for taking that approach—it simply emphasized that, in a fee-shifting statute like FEHA, the losing side inherits the full financial consequences of the litigation it helped create.

That includes the consequences of rejecting a settlement offer under Code of Civil Procedure section 998. Once the defense forces a plaintiff to take a case through trial (and then loses), it becomes difficult to argue that the plaintiff’s lawyers should have spent less time litigating. The court made this point plainly: when the defense chooses to fight at every step, the plaintiff’s time investment naturally goes up.

The Catch-22 for Employers

This leads to the real takeaway from Bronshteyn: defendants in FEHA cases are now squarely stuck between two unattractive choices.

Option 1: Litigate Hard

Mount a full and vigorous defense. Challenge the pleadings, file motions, push discovery issues, and force the plaintiff to prove their case. However, if the defendant loses, the attorneys’ fees alone can dwarf the damages and lead to a staggering financial outcome, as in Bronshteyn.

Option 2: Keep Litigation Costs Down

Streamline the defense. Limit motion practice, work cooperatively in discovery, and seriously consider early settlement. However, the defendant may feel it is not fully protecting itself, may give up strategic leverage, and may end up paying more just to avoid the possibility of massive fee exposure.

Neither option is comfortable. That is the catch-22. The more aggressively an employer defends a case, the larger the potential fee award becomes. But dialing back the defense to limit fees carries its own risks, both legally and financially.

Conclusion

Bronshteyn isn’t some outlier or a warning about extreme litigation conduct. It’s a reminder that ordinary, reasonable defense strategies in a FEHA case can snowball into an enormous fee award if the plaintiff ultimately prevails. The decision reinforces the reality that, in fee-shifting employment litigation, defense strategy must account for not only the merits of the case but also the escalating fee consequences that come with aggressive litigation.

For employers and public agencies, this decision is likely to change how early case assessments, settlement decisions, and litigation budgets are approached. And for defense counsel, it may require more candid conversations with clients about what “winning the case” really means, and the potential downside to litigating aggressively and losing.