Employment: Defendant Winning Heavily Contested Commission Dispute Was Correctly Denied Wage/Hour Attorney’s Fees Because Plaintiff’s Case Was Not Frivolous

Even Though Plaintiff Principally Brought The Case Based On Greed/Anger, Objective Factors Showed The Denied Commission Calculation Was Complex Such That No Frivolity Was Involved.

            We have discussed this issue in the past—Labor Code section 218.5 wage/hour cases allow fees to prevailing plaintiffs liberally, but only allow prevailing defendants to recover if a case was brought or maintained in bad faith (a frivolousness standard).

            The lower and appellate courts concluded that the plaintiff’s commission case was not frivolous in Kleinberg v. Landmark Dividend, LLC, Case No. B306650 (2d Dist., Div. 8 June 1, 2022) (unpublished).  Plaintiff did lose after a 31-day bench trial.  However, the commission calculations were complex, driven by new rent figures.  Given this objective complexity, the mere fact that plaintiff was somewhat motivated by greed and anger did not override the lower court’s determination that plaintiff’s action was not brought in bad faith.  “We cannot equate ‘greed and anger’ with actual malice or ill will or furtive design or personal animosity, where there was an arguable basis, identified by the trial court, for litigating the suit.”