Specific Facts Sealed The Deal In This Decision.
Shames v. Utility Consumers’ Action Network, Case No. D070141 (4th Dist., Div. 2 June 29, 2017) (published) should be a decision of interest to employment litigation attorneys when it comes to Labor Code section 218.5 fee recovery, although its specific facts dictate the result and counsel that plaintiffs simply need to plead fee recovery with specificity, whether in an initial or amended complaint (although we would suggest you do it in the initial complaint).
The fee entitlement statute is Labor Code section 218.5, which provides that in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, a reasonable fees and costs award is mandatory to the prevailing party “if any party to the action requests attorney’s fees and costs upon the initiation of the action.”
What happened here is this: Former employee filed a multi-count complaint and a later amended complaint which proceeded to trial. He won on several counts, including $141,544 for breach of contract for failure to pay incentive payments and $50 in penalties for defendant employer’s failure to provide an itemized wage statement. Although garnering a little over $8,000 in fees and costs under Labor Code section 226(e) (fee entitlement for failure to provide an itemized wage statement), the trial judge denied fees and costs under section 218.5. The 4/1 DCA affirmed. Both courts could not find any specific allegations or prayers for fees/costs in either the original or amended complaint, suggesting in dicta (but not deciding) that an amended complaint pleading of same would suffice. Although there were three references to fees in the first amended complaint, they were under counts not involving section 218.5, with plaintiff fatally not pleading for fee recovery in the count involving incentive payments. Given that 218.5 is a notice provision, the employer dodged fee/costs exposure under this specific fee-shifting statute.
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