Employment: 4/3 DCA Decides That Nanny Winning Berman De Novo Hearing Not Entitled To Fee Recovery Because She Opted For Administrative Remedy And Was Not A Prevailing Respondent (But A Prevailing Appellant Not Entitled To Fees)

Court Of Appeal Found Sampson Decision Sounder Than Eicher In Determining If Labor Commissioner Appeal Was A Civil Action Worthy Of Fees Under Labor Code § 1194.

            Boktor v. Applebaum, Case No. G055509 (4^th Dist., Div. 3 Jan. 23, 2019; posted Jan. 24, 2019) (unpublished) waded into the thorny issue of whether a successful appellant/employee was entitled to attorney’s fees for minimally prevailing in a de novo action appeal from a Berman hearing under either Labor Code sections 98.2(c) or 1194. Because employee opted for the Berman administrative remedy, only section 98.2(c) applied, which did not allow fee recovery by a successful appellant (although fees were allowable to a successful respondent).

            Here, nanny/employee filed against her employer a Labor Commissioner proceeding under Labor Code section 98 for unpaid wages, eventually winning an award of $12,753.94 (inclusive of liquidated damages and penalties)—well short of the $400,000 she requested. Nanny appealed for a de novo hearing and did not even do as well, only winning $300 for unpaid overtime plus penalties and interest of $6,000. Nanny then moved for recovery of $124,132.50 in attorney’s fees under Labor Code sections 98.2(c) [allowing fee recovery by a successful respondent in a de novo appeal] and 1194 [allowing fee recovery by an employee in a civil action regarding overtime wages]. Assuming section 1194 was applicable, the lower court denied fees because the action should have been filed as a limited action rather than an unlimited one. That provoked an appeal by nanny.

            She lost, with the fee denial being affirmed.

            The clincher in this case was that nanny opted to use the Berman administrative remedy rather than filing a direct civil action for overtime wages in court. The 4/3 DCA found that the trial de novo was not the equivalent of a civil action for section 1194 purposes, favoring the analysis of the 2/3 DCA in Sampson v. Parking Service 2000 Com., Inc., 117 Cal.App.4^th 212, 223 (2004) in support over the contrary result reached by the 3^rd DCA in Eicher v. Advanced Business Integrators, Inc., 151 Cal.App.4^th 1363, 1378-1379 (2007). So, that brought the appellate court to a consideration over whether section 98.2(c) allowed for recovery. It did not, because it can only go to a successful respondent, not a successful appellant in nanny’s shoes.

            Presiding Justice O’Leary authored the 3-0 decision.