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C.A. Affirms $5 Million Attorney-Fee Award
Wiley Counsels That Hard-Fought Defense Can Be Costly
By a MetNews Staff Writer
Div. Eight of the Court of Appeal for this district has affirmed an award of attorney fees amounting to nearly $5 million in a disability-discrimination action brought by a former employee against the California Department of Consumer Affairs.
The decision comes in an action brought by Diana Bronshteyn under the Fair Employment and Housing Act, which provides for recovery of attorney fees by prevailing plaintiffs. A judgment for $3,324,262 in damages, pursuant to an Aug. 3, 2022 jury verdict, was affirmed in an unpublished decision by Justice John Shepard Wiley Jr. last May 12.
In an opinion on Wednesday upholding a $4,889,786.03 award by Los Angeles Superior Court Judge Mark H. Epstein, Wiley counseled:
“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.”
Epstein Praised
He declared: “We affirm the trial court’s careful and well-reasoned ruling,” observing:
“The trial court’s order carefully explained its valid reasons for rejecting the Department’s attacks on Bronshteyn’s motion. The Department’s appeal merely repeats these faulty attacks.”
Wiley noted, with approval, Epstein’s response to the government’s contention that the fees sought were exorbitant because big-firm rates are inappropriately charged by small firms. Bronshteyn was represented by Oakland attorney Wendy Musell and by the two-partner Oakland firm of Vinick Hyams.
Epstein—who practiced with the 200-lawyer firm of Munger Tolles—said:
“The hourly rate to set is based on a myriad of factors, but size of firm is not one the court believes any firm touts. Rather, the court agrees that the lawyer’s reputation and experience play into the rate, but there is no reason to believe that lawyers at smaller firms have a lesser reputation than lawyers at larger firms.”
Trial Court Ruling
Epstein opined in his March 10, 2023 ruling on attorney fees:
“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. The court believes it is therefore appropriate to award fees at the higher level.”
He awarded hourly fees ranging from $225 for a paralegal/legal assistant to $1,100 for Vinick Hyams partner Jean Hyams, subsequently setting a 1.75 multiplier for trial work and 1.25 for hours expended after the verdict.
The case is Bronshteyn v. Department of Consumer Affairs, 2025 S.O.S. 2509.
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