©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 145 317 Lab. Code § 218.5(a) (“[I]f the prevailing party in the court action is not an employee, attorney fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith.”). Although “bad faith” is not defined, it is likely that an employer must show that the employee’s claim was brought with knowledge that it was baseless. 318 Murphy v. Kenneth Cole Prods., Inc., 40 Cal. 4th 1094, 1099 (2007). The result of this pro-employee holding was that the statute of limitations for claims seeking meal and rest pay was three years instead of just one. 319 Kirby v. Immoos Fire Protection, 53 Cal. 4th 1244, 1255, 1257 (2012) (“[The] question here is whether a Section 226.7 claim, which concerns an employer’s alleged failure to provide statutorily mandated meal and rest periods, constitutes an ‘action brought for the nonpayment of wages’ within the meaning of Section 218.5. We conclude it does not.”; “[A] section 226.7 claim is not an action brought for nonpayment of wages; it is an action brought for nonprovision of meal or rest breaks.”). The Supreme Court in Kirby distinguished its prior decision holding that the pay owed for meal-break violations is a “wage.” Id. at 1257 (discussing Murphy v. Kenneth Cole Prods., 40 Cal. 4th 1094 (2007) (“To say that a section 226.7 remedy is a wage, however, is not to say that the legal violation triggering the remedy is nonpayment of wages. As explained above, the legal violation is nonprovision of meal or rest breaks, and the object that follows the phrase ‘action brought for’ in section 218.5 is the alleged legal violation, not the desired remedy.”). 320 SB 462, 2013 bill amending Lab. Code § 218.5. 321 Lab. Code § 218.5(a) (described above). The Court of Appeal has held that this statute is procedural and applies to pending litigation, thus depriving employers of attorney fees for cases they won that were filed before section 218.5 was amended. USS-Posco Indus. v. Case, 244 Cal. App. 4th 197, 215-22 (2016). 322 Lab. Code § 1194(a). 323 Aleman v. AirTouch Cellular, 209 Cal. App. 4th 556, 579-84 (2012) (a split-shift claim seeks the minimum wage and is thus subject to section 1194 provision permitting only employee to recover attorney fees; a reporting-time claim seeks unpaid wages at the regular rate and thus is subject to section 218.5). 324 City of Burlington v. Dague, 505 U.S. 557, 567 (1992) (rejecting use of enhancements in calculating attorney fees under fee-shifting provisions of two federal statutes). 325 Perdue v. Kenny A. ex. rel. Winn, 559 U.S. 542, 553-54 (2010) (“[W]e reject any contention that a fee determined by the lodestar method may not be enhanced in any situation. The lodestar method was never intended to be conclusive in all circumstances. Instead, there is a ‘strong presumption’ that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may properly be considered in determining a reasonable fee.”). 326 Ketchum v. Moses, 24 Cal. 4th 1122, 1130 (2001) (quoting lower court opinion). 327 Id. at 1137-39 (trial court can include fee enhancement to basic lodestar figure for contingent risk, exceptional skill, or other factors). 328 Amaral v. Cintas Corp., 163 Cal. App. 4th 1157, 1216-18 (2008); see also Pellegrino v. Robert Half Intern., Inc., 182 Cal. App. 4th 278, 290 (2010) (affirming 1.75 multiplier to lodestar figure in multi-plaintiff Labor Code action). 329 Buckhannon Bd. & Care Home, Inc. v. West Virginia Dep’t of Health & Human Resources, 532 U.S. 598 (2001) (rejecting “catalyst theory” in a FOIA case because the theory would allow an award of attorney fees where there is no judicially sanctioned change in the legal relationship of the parties, would discourage defendants to voluntarily change conduct that may not be illegal, and would foment a second major litigation requiring analysis of the defendant’s subjective motivations in changing its conduct). FOIA was amended, in 2007, to define “substantially prevailed” to include “a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 5 U.S.C. § 552(a)(4)(E)(ii). Congress intended this amendment to prevent federal agencies from denying meritorious FOIA requests, only to voluntarily comply with a request on the eve of trial to avoid liability for litigation costs. Warren v. Colvin, 744 F.3d 841 (2d Cir. 2014). 330 Graham v. DaimlerChrysler Corp., 34 Cal. 4th 553 (2004). The catalyst theory is available, however, only if the lawsuit had “some merit” and the plaintiff “engaged in a reasonable attempt to settle its dispute with the defendant prior to litigation.” Id. at 561. 331 Id. at 579-82. 332 Id. at 585 (Chin, J., dissenting). 333 Nishiki v. Danko Meredith, APC, 25 Cal. App. 5th 883, 896 (2018). See also Stratton v. Beck, 9 Cal. App. 5th 483, 497 (2017) (affirming $31,625 fee award while rejecting contention that it was “grossly disproportionate” to the $303 wage award). 334 See, e.g., Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) (“extent of a plaintiff’s success is a crucial factor in determining the proper amount of an award of attorney fees under 42 U. S. C. § 1988. Where the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful claims, the hours spent on the unsuccessful claim should be excluded in considering the amount of a reasonable fee.”). 335 Harman v. City & Cnty. of San Francisco, 158 Cal. App. 4th 407 (2007). 336 Chavez v. City of Los Angeles, 160 Cal. App. 4th 410, 416-22 (2008) (in ruling on motion for attorney fees by plaintiff who prevailed in FEHA case, trial court erred in denying fees solely because plaintiff’s recovery was below the $25,000 threshold for general civil jurisdiction), rev. granted, No. S162313 (Cal. May 14, 2008). 337 Chavez v. City of Los Angeles, 47 Cal. 4th 970, 989-92 (2010). 338 Muniz v. United States Parcel Serv., 738 F.3d 214, 218 (9th Cir. 2013) (“although there was a clear disparity between the damages recovered and the fees awarded, California law did not require the district court to reduce the disparity”). 339 See, e.g., Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1047 (9th Cir. 2002) (approving 28 percent fee as justified by a benchmark of 25 percent adjusted according to specified case circumstances); In re Bluetooth Headset Products Liability Litigation, 654 F.3d 935, 942 (9th Cir. 2011) (Ninth Circuit district courts “typically calculate 25% of the fund as the ‘benchmark’ for a reasonable fee award, providing adequate explanation in the record of any ‘special circumstances’ justifying a departure”). 340 Laffitte v. Robert Half Int’l, Inc., 1 Cal. 5th 480, 486 (2016).
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