Appellate Reports

Trial judge is the best judge of reasonable hourly rates for trial attorneys. Arbitration: the need to show signed arbitration agreement defendant relies on. Also, good faith settlement findings and motions to amend judgment

Attorney’s fees; setting hourly rates for trial lawyers and accusing the other side of spending too much time on the case without disclosing your own hours

Bronshteyn v. Department of Consumer Affairs (2025) 114 Cal.App.5th 537 (Second Dist., Div. 8.)

Bronshteyn sued her employer, the Dept. of Consumer Affairs, for FEHA violations. After a trial, the empolyer lost. She then moved for fees. The trial court awarded her $4,889,786.03, which included a 1.75 contingency multiplier for fees incurred through the verdict and a 1.25 multiplier for post-verdict fees. In calculating the lodestar, the court used the following hourly rates for her counsel: $1,100 for one partner, $1,000 for four other partners, $850 for a junior partner, and $425 for an associate. The Department appealed on multiple grounds, and the Court of Appeal affirmed, in full.

The court rejected the argument that the plaintiff’s expert considered only “top plaintiff-side personal injury and employment lawyers,” claiming that it was error for the court to use such “rates awarded to attorneys at the top of their field as a base, when they should have been used as a ceiling.” The appellate court found no abuse of discretion, stating, “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. . . The trial court opined the rates Bronshteyn’s counsel requested were reasonable. This experienced trial judge personally witnessed the work. On this cold record, we will not second-guess.”

With respect to the number of hours, the Department claimed that the trial court abused its discretion by awarding hours to Bronshteyn’s counsel based on “vague entries and block billing,” counsel’s “over-litigation” of the case, and “awarding attorneys’ fees for administrative work.” The appellate court responded, “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. This would have supplied a logical and objective factor for evaluating Bronshteyn’s claims. The Department chose to omit these data, which presumably did not support its argument. (See CACI No. 203 [“If a party provided weaker evidence when it could have provided stronger evidence, you may distrust the weaker evidence”].)

Arbitration; multiple insurance enrollments; need to show signed arbitration agreement defendant relies on

Brockman v. Kaiser Foundation Hospitals (2025) 114 Cal.App.5th 569 (Third Dist. 2025)

Plaintiff’s mother joined the Kaiser health plan through her employment as a nurse, in 2004. She added her daughter to the plan in 2005. They remained Kaiser insureds through at least 2020. In 2020, the plaintiff sued Kaiser for malpractice for treatment she received between 2017 and 2020. Kaiser moved to compel arbitration, but it did not put signed arbitration agreements before the court corresponding to the periods in the complaint. The trial court denied the motion to compel arbitration. Affirmed.

The court explained that, while the arbitration disclosure in the 2004 enrollment form stated that “the full arbitration provision” was contained in the evidence of coverage document, defendants never submitted that document to the court. As for the 2005 enrollment form that added plaintiff as a dependent under her mother’s union health care plan, it did not reference the evidence-of-coverage document. Instead, the arbitration disclosure in that form referenced “the provisions of the Service Agreement and Health Plan policies,” none of which were submitted to the trial court. And there was no evidence showing that plaintiff or her mother expressly agreed to the specific arbitration provisions defendants sought to enforce in the union health care plan membership agreements (2017-2020), the language of which changed over time. Indeed, defendants did not produce any arbitration agreement containing the signature of plaintiff’s mother.

As for the 2020 self-funded plan, defendants relied on the terms set forth in the Benefits Booklet as evidence of an agreement to arbitrate the controversy. In so doing, defendants cited the arbitration disclosure language from the electronic form plaintiff’s mother completed in 2020 when she enrolled in the self-funded plan. However, as the trial court pointed out, the arbitration disclosure included in the enrollment form stated that “the full arbitration provision” was contained in the “Evidence of Coverage” and/or the “Summary Plan Description.” The arbitration disclosure makes no reference to the Benefits Booklet. And the record demonstrates that the Benefits Booklet, Evidence of Coverage, and summary plan description are distinct and separate documents. Defendants, for their part, do not point to anything in the record showing that plaintiff or her mother expressly agreed to the full arbitration agreement set forth in the Benefits Booklet.

Findings made in § 877.6 good-faith-settlement hearings can be raised on appeal

Fennessy v. Altoonian (2025) 114 Cal.App.5th 613 [Third District].

The Fennessys sued Altoonian, who sold them his house, and Altoonian’s real estate agent, for faulty disclosures. The real estate agent cross-complained against Altoonian on a variety of claims, including indemnity, negligence, and breach of contract. The Fennessys settled with the real estate agents, and obtained a good-faith settlement finding under Code Civ. Proc. section 877.6. In granting the motion, the trial court found that all of Altoonian’s cross-claims were barred under section 877.6, subdivision (c) as actual or artfully pleaded claims for indemnity or contribution.

The Fennessys proceeded to trial on their claims against Altoonian, and a jury found Altoonian not liable. The Fennessys appealed from the judgment, and Altoonian cross-appealed. Through this court’s mediation process, the Fennessys and Altoonian settled the appeal, but the cross-appeal was not resolved.

In the present cross-appeal, Altoonian contends that the trial court erred in finding that the good-faith settlement determination barred three of his cross-claims against his agent: those asserting breach of contract, breach of fiduciary duty, and negligence. The agent argued, in response, that Altoonian’s cross-appeal should be dismissed because a good-faith-settlement determination can be reviewed only through a petition for writ of mandate pursuant to section 877.6, subdivision (e).

The appellate court held that a post-judgment appeal is a permissible way to challenge a good- faith-settlement determination. On the merits, it held that the trial court correctly determined that Altoonian’s cross-claims for breach of contract, breach of fiduciary duty, and negligence were effectively claims for indemnity and thus correctly ruled the claims were barred.

The Courts of Appeal have split on the issue of whether a good-faith-settlement determination can be challenged solely via a writ petition. (Compare Pacific Fertility Cases (2022) 78 Cal.App.5th 568, 573 [“a good faith settlement determination is reviewable only by a timely petition for writ of mandate in accordance with section 877.6”]; O’Hearn v. Hillcrest Gym & Fitness Center, Inc. (2004) 115 Cal.App.4th 491, 494, 499 [same]; Main Fiber Products, Inc. v. Morgan & Franz Ins. Agency (1999) 73 Cal.App.4th 1130, 1136-1137 & fn. 4, 87 (Main Fiber) [same, but noting “possible exception” where appellant’s previous writ petition was denied]; Oak Springs Villas Homeowners Assn. v. Advanced Truss Systems, Inc. (2012) 206 Cal.App.4th 1304, 1307 [“A good faith settlement determination is a nonappealable interlocutory ruling and immediate review of the merits of that determination is obtainable only by a timely writ petition” pursuant to § 877.6] with Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956 [§ 877.6, subd. (e) does not “preclude postjudgment appeals of good faith settlement determinations where earlier writ petitions were summarily denied”]; Wilshire, supra, 86 Cal.App.4th at pp. 630, 636-637 [same]; Maryland Casualty Co. v. Andreini & Co. (2000) 81 Cal.App.4th 1413, 1425 & 1424-1425, fn. 13 (Maryland Casualty) [“a good faith settlement determination can be reviewed by prejudgment writ and postjudgment appeal,” at least where nonsettling party previously sought but failed to obtain a writ]; Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 827, fn. 1 [finding good-faith settlement determination reviewable on appeal from order dismissing cross-complaint as barred].)

Based on the text and legislative history of section 877.6, subdivision (e), the Court concluded that a writ petition is not the exclusive method of obtaining appellate review of a good faith settlement determination. Because Altoonian timely appealed the good-faith settlement determination following the entry of final judgment, the court had jurisdiction over his cross-appeal, even though he did not challenge the ruling in a writ petition in addition to an appeal.

Motion to amend judgment to add new defendant; prior finding that individual defendant was not corporate defendant’s alter ego did not bar individual from being added to judgment based on post-decision conduct

Angel Lynn Realty, Inc. v. George (2025) 114 Cal.App.5th 655 [Third Dist.]

Code of Civil Procedure section 187 grants courts “all the means necessary” to carry their jurisdiction into effect. Among other things, it authorizes a trial court to amend a judgment “to add additional judgment debtors on the ground that a person or entity is the alter ego of the original judgment debtor.” Plaintiff Angel Lynn Realty, Inc. (ALR) filed such a motion seeking to add defendant Steve George as an additional judgment debtor to a $1 million judgment entered against defendant Real Estate Portfolio Management, LLC (REPM). The trial court denied the motion, finding it was barred by collateral estoppel because it had already decided George was not REPM’s alter ego. ALR argues this was error because its motion was based entirely on events that occurred after the trial court’s decision, and collateral estoppel does not apply “if new facts or changed circumstances have occurred since the prior decision.” (Union Pacific Railroad Co. v. Santa Fe Pacific Pipelines, Inc. (2014) 231 Cal.App.4th 134, 179.) The Court of Appeal agreed, and thus reversed and remanded to the trial court to determine in the first instance whether new facts or changed circumstances have occurred since the prior decision that change the alter-ego analysis.