Employment: Employee Winning Only $32.00 On Unpaid Wages/Penalties Was Entitled To A Remand To Seek Additional Attorney’s Fees And Routine Costs

Lower Court Awarded Just $3.20 In Fees Under CCP § 1031; Only Costs Solely Incurred On Losing FEHA Claims Had To Be Excluded So As To Require A Remand.

            FEHA is a statute which has very liberal fee- and costs-shifting provisions, as interpreted by a very robust California jurisprudence under the governing statute.  Moreno v. Bassi, Case No. F078400 (5^th Dist. June 8, 2021 partially published; fee and costs issues published) is yet another case law addition to this jurisprudence.

            In this one, plaintiff was awarded $32.00 in unpaid wages/penalties under Labor Code claim, losing on all FEHA claims, losing on some non-FEHA claims, and prevailing on some non-FEHA claims.  The lower court did this: (1) awarded her $19,523 in costs; and (2) $3.20 in attorney’s fees based on a CCP § 1031 formula multiplying the wages recovered by 20%. 

            The costs award got reversed because the only costs which were barred were those due solely (and solely is an important caveat) to inclusion of the FEHA claims because plaintiff did not prevail on them and the defense did not prevail on them given that the lower court found they were not frivolous in nature. However, plaintiff was entitled to costs on the non-FEHA claims, including costs related to non-FEHA claims intertwined with the FEHA claims, the Fifth District agreeing with the analysis in Roman v. BRE Properties, Inc., 237 Cal.App.4^th 1040, 1059 (2015) to the same effect.

            On the fee issue, the lower court needed to exercise its discretion under Labor Code section 1194 to award reasonable attorney’s fees for the unpaid wage victory given that section 1194 was specific and overrode the more restricted formula under CCP § 1031.