Lodestar Method Should Have Been Used And Will Be On Remand.
In Chen v. M&C Hotel Interest, Inc., Case Nos. B266461/B267622 (2d Dist., Div. 5 Aug. 11, 2017) (unpublished), a trial judge was faced with a prevailing plaintiff bringing an attorney’s fees motion under Labor Code section 218.5, which allows fees to an employee on a wage/hour dispute. However, the lower court, in awarding fees, decided to use a demarcation approach based on what it perceived as being the stages of the litigation which involves wage compensation even though plaintiff’s overall complaint for contractual damages did involve wages overall. The trial judge awarded $41,687.50 after applying a 23% percentage applicable to unpaid wages augmented by a 1.25 multiplier.
The 2/5 DCA reversed the fee award and remanded for a calculation under the lodestar methodology for awarding attorney’s fees. First of all, the lower court erred in failing to recognize that all contractual compensation was wages for purposes of fee recovery calculation. Second, the appellate court found that the lodestar method was the one to use rather than the percentage of recovery based on time demarcations. (Citing Serrano v. Priest, 20 Cal.3d 25, 48 (1977) [one of our Leading Cases].) So, a remand was in order to use the lodestar method to fix attorney’s fees.
Also, we note that the appellate court rejected the notion that section 218.5 fees were improper because plaintiff did not initially plead a Labor Code wage claim, but rather proceeded with a contract claim, which would not have provided a basis for fee recovery, in her original complaint. The appellate court noted that the Labor Code claim was pled in amended pleadings where fees were requested.
BLOG COMMENDATION—Co-contributor Mike and Marc have appeared in front of Justice Paul Turner who served in the Los Angeles County Superior Court and 2/5 DCA. Justice Turner died in May of this year. He was a distinguished jurist and Presiding Justice of the 2/5 DCA for a long time. We commend his services to the public, as well as express our condolences to his family/relatives.
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