Opinion
B227086
11-22-2011
LARISA MCGAHA, Plaintiff and Respondent, v. MOUNTAIN HIGH RESORT ASSOCIATES, LLC, Defendant and Appellant.
Rutan & Tucker, LLP, Mark J. Payne and Brandon L. Sylvia for Defendant and Appellant. Hamner Law Offices, LP, Christopher J. Hamner and Glenn C. Nunes for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC422041)
APPEAL from an order of the Superior Court of Los Angeles County, Kevin Clement Brazile, Judge. Affirmed.
Rutan & Tucker, LLP, Mark J. Payne and Brandon L. Sylvia for Defendant and Appellant.
Hamner Law Offices, LP, Christopher J. Hamner and Glenn C. Nunes for Plaintiff and Respondent.
I. INTRODUCTION
Defendant, Mountain High Resort Associates, LLC, appeals from an order refusing to award attorney fees pursuant to Labor Code section 218.5. The challenged order issued after plaintiff, Larisa McGaha, dismissed without prejudice her purported class action complaint for various work-related and unfair competition claims. Consistent with existing authority, we conclude section 218.5 bars an employer from obtaining attorney fees in any action in which an employee seeks such relief pursuant to section 1194, subdivision (a) (section 1194). (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1425 (hereafter Earley, supra,).)Related issues are pending before our Supreme Court in Kirby v. Immoos Fire Protection, Inc., review granted November 17, 2010, S185827 and United Parcel Service Wage and Hour Cases, review granted May 11, 2011, S191908. We affirm.
All further statutory references are to the Labor Code unless otherwise indicated.
II. BACKGROUND
In September 2009, plaintiff sued defendant for a number of alleged illegal employment practices. The complaint alleges that she and other non-exempt employees were denied lawful rest and meal periods and were not provided with the "one hour's wage" penalty. Plaintiff also alleges defendant failed to: compensate its employees for overtime; maintain time records; or itemize wage statements. The complaint contains causes of action for: failure to provide rest and meal periods (§§ 226.7, 512); violation of overtime laws (§§ 203, 226, 226.7, 510, 1194); failure to comply with itemized employee wage statement requirements (§§ 114, 226, 1174); and violation of the unfair competition law. (Bus. & Prof. Code, § 17200 et seq.) After defendant filed an answer, at plaintiff's request, the complaint was dismissed without prejudice. Defendant then moved for $50,319.50 in attorney fees as the prevailing party pursuant to section 218.5. Defendant asserted the complaint's allegations for failure to provide meal and rest breaks and make overtime payments were all intertwined with the wage claim for purposes of section 218.5. Citing Earley, supra, at pages 1426-1431, plaintiff argued section 1194 precluded an employer attorney fee award in any civil action for failure to pay overtime or minimum wage. In reply, defendant asserted that section 1194 did not preclude recovery for attorney fees for the gravamen of the complaint which was for meal and rest break claims. According to defendant, section 1194 does not apply to any other kind of claims other than overtime and minimum wage causes of action. Defendant's attorney fee request was denied. Defendant filed a timely appeal challenging the denial of its attorney fee request.
III. DISCUSSION
Section 218.5 provides: "In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney's fees and costs to the prevailing party if any party to the action requests attorney's fees and costs upon the initiation of the action. . . . [¶] This section does apply to any action for which attorney's fees are recoverable under Section 1194." Section 1194 provides, "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorney's fees, and costs of suit."
The interpretation of these statutes and plaintiff's obligation to pay an award of attorney fees are questions of law requiring our independent review. (Earley, supra, at p. 1426; Californians for Population Stabilization v. Hewlett-Packard Co. (1997) 58 Cal.App.4th 273, 294, overruled on a different point in Cortez v. Purolator Air Filtration Products (2000) 23 Cal.4th 163, 171.) Our Supreme Court has explained the review process in statutory interpretation as follows: "Our task is to discern the Legislature's intent. The statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs. On the other hand, if the language allows more than one reasonable construction, we may look to such aids as the legislative history of the measure and maxims of statutory construction. In cases of uncertain meaning, we may also consider the consequences of a particular interpretation, including its impact on public policy. [Citations.]" (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190; accord, Catlin v. Superior Court (2011) 51 Cal.4th 300, 304.)
Section 218.5 is a fee shifting statute in favor of a prevailing party on a claim for unpaid wages and specified benefits. (Goldbaum v. Regents of University of California (2011) 191 Cal.App.4th 703, 708-709.) By contrast, section 1194 is a "'one-way' fee shifting" statute. Section 1194 grants an employee the right to reasonable attorney fees in a successful lawsuit to recover minimum or overtime wages but deprives the employer of the reciprocal option in such litigation. (Bell v. Farmers Ins. Exchange (2001) 87 Cal.App.4th 805, 829.)
In Earley, supra, at page 1429, the Court of Appeal held if an employee is unsuccessful in a suit for minimum wages or overtime, section 1194 does not permit a prevailing employer to recover fees or costs. (Earley, supra, at p. 1429.) Later, the Court of Appeal held, "The only reasonable interpretation which would avoid nullification of section 1194 would be one which bars employers from relying on section 218.5 to recover fees in any action for minimum wages or overtime compensation." (Id., at p. 1430.) The holding in Earley was subsequently codified by the Legislature in 2000 by adding the following sentence to section 218.5, "This section does not apply to any action for which attorney's fees are recoverable under Section 1194." (Stats. 2000, ch. 876, § 4.)
Here, the complaint sought damages and remedies for failure to give employees rest and meal periods or "one hour's wages in lieu thereof on a variety of theories. Plaintiff also sought to recover compensation for overtime wages under section 1194. By its express terms, section 218.5 bars an employer from obtaining an attorney fee award in any action in which section 1194 attorney's fees are recoverable. (Earley, supra, at pp. 1429-1430.) A civil action as used in section 1194 means one filed in court. (See Code Civ. Proc., § 22; Sampson v. Parking Service 2000 Com., Inc. (2004) 117 Cal.App.4th 212, 223-224.)
No doubt, a sound argument can be made that the interplay between sections 218.5 and 1194 is ambiguous. Any ambiguity is resolved by the uncodified portion of Assembly Bill No. 2509 (1999-2000 Reg. Sess.) which added the second paragraph to section 218.5. The uncodified portion of Assembly Bill No. 2509 (1999-2000 Reg. Sess.) section 11, which added the second paragraph to section 218.5 states, "The amendments to Section 218.5 of the Labor Code made by Section 4 of this act do not constitute a change in, but are declaratory of, the existing law, and these amendments are intended to reflect the holding of the Court of Appeal in [Earley v. Superior Court] (2000) 79 Cal.App.4th 1420." Thus, in 2000, while adding the second paragraph to section 218.5, the Legislature clarified that its intent was to codify the holding in Earley.
Defendant nevertheless asserts that attorney fees were recoverable because the gist of the complaint was not an overtime claim under section 1194. Defendant argues the complaint's gravaman was for meal and rest periods, i.e., "a wage" claim within the meaning of section 218.5. Our Supreme Court has concluded that payments to employees pursuant to section 226.7, subdivision (a) for failure to provide meal or rest periods constitute "wage or premium" payments. (See Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094, 1109.) But Murphy does not address whether section 218.5 meal and rest period allegations amount to a wage claim triggering the attorney fee requirement in the first paragraph of the statute. Because Murphy does not address that issue, it is not controlling authority in the case before us. (People v. Alvarez (2002) 27 Cal.4th 1161, 1176; see Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 122-123.) Moreover, even if it is a wage claim, it does not resolve the issue of the language in the second paragraph of section 218.5. There the Legislature specifically excludes from section 218.5's coverage any action where attorney's fees are recoverable under section 1194. Defendant sought attorney fees under section 218.5. But, an employer is not entitled to attorney fees under section 218.5 in any action where section 1194 attorney fees were recoverable. The specific language in the second paragraph controls to the extent it is in conflict with the earlier general "wage" provision of section 218.5. (Code Civ. Proc., § 1859; People v. Superior Court (Jimenez) (2002) 28 Cal.4th 798, 808; California Attorneys, Etc. v. Brown (2011) 195 Cal.App.4th 119, 125.)
Defendant further asserts that the term "action" in section 218.5 means "cause of action" or a single claim such that the fees should be apportioned. This is because in amending section 218.5 in 2000 as noted, the Legislature intended to codify Earley. According to defendant, the Earley holding was confined to "a cause of action" for overtime or minimum wages. Defendant cites the following language from Earley to support the argument, "Section 218.5 would still be available for an action brought to recover nonpayment of contractually agreed-upon or bargained-for 'wages, fringe benefits, or health and welfare or pension fund contributions.'" (Earley, supra, at p. 1430.) But, there is no claim for contractually bargained-for payments or bargained-for wages and benefits. Rather, the complaint alleges employee minimum wages were not paid because of the failure to provide meal and rest periods. Meal and rest period claims are covered by section 1194 because the gist of the complaint was that the unpaid missed breaks meant plaintiff and others were denied a minimum wage. In addition, plaintiff sought overtime wages. And to the extent other theories were alleged, the parties agree that the other claims for failure to keep records and unfair competition were "inextricably intertwined" with the overtime and meal and rest break claims. In any event, section 218.5 does not exclude from its coverage "any cause of action" or "claim" for overtime or minimum wages. Instead, section 218.5 bars a prevailing employer from obtaining attorney fees in "any action" where section 1194 fees are recoverable. Under the circumstances, the trial court correctly ruled defendant was not entitled to its attorney fees in this case under section 218.5.
IV. DISPOSITION
The order denying attorney fees is affirmed. Plaintiff, Larisa McGaha, shall recover her costs incurred on appeal from defendant, Mountain High Resort Associates, LLC.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
TURNER, P. J. We concur:
ARMSTRONG, J.
KRIEGLER, J.