Employment, Section 998: 998 Offer During Arbitration Did Not Allow Arbitrator To Determine There Was A Prevailing Party, Just Reasonable Fees/Costs Under Wage/Hour Statutes

Arbitrator’s “Prevailing Party” Determination Properly Corrected By Superior Court.

            In Geiger v. Floyd’s 99-California, LLC, Case No. G056747 (4^th Dist., Div. 3 Nov. 18, 2020) (unpublished), employee sued for wage/hour violations, with the individual claims ordered to arbitration.  The employer served a CCP § 998 offer offering to settle those claims for $10,000, with reasonable attorney’s fees and costs to be determined by the arbitrator.  The employee accepted the 998 offer.  Employee moved for $31,775 in fees under various wage/hour fee-shifting provisions and $2,402.29 in costs.  The arbitrator awarded employee $12,500 in fees and $2,327.29 in costs, in addition to the $10,000 base settlement amount under the 998 offer.  However, the arbitrator also indicated that employee was the prevailing party, which prompted employer moving to correct the award to delete this determination.  The trial judge confirmed the award, but he did correct it to remove the “prevailing party” determination, prompting an appeal by employee.

            The 4/3 DCA, in an opinion penned by Acting Presiding Justice Fybel, agreed that the “prevailing party” deletion by the superior court was correct.  Employee only gained fees and costs through the 998 “settlement agreement,” given that employer denied liability in the 998 offer.  As such, employee was correctly determined not to be a “prevailing party” under any other rubric.