Zelasko-Barrett v. Brayton-Purcelll 10/24/11 CA1/3

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: A131601

Case Date: 01/19/2012

Preview:Filed 10/24/11 Zelasko-Barrett v. Brayton-Purcell, LLP CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE

MATTHEW ZELASKO-BARRETT, Plaintiff and Appellant, v. BRAYTON-PURCELL, LLP, Defendant and Respondent. A131601 (Marin County Super. Ct. No. CIV-095856)

Plaintiff Matthew Zelasko-Barrett unsuccessfully brought a civil action against his former employer, Brayton-Purcell, LLP (Brayton), alleging that Brayton failed to pay him overtime wages and provide other benefits required by California law. Following summary judgment in Braytons favor, the trial court awarded Brayton attorney fees and costs under Labor Code1 section 218.5. In a prior appeal, this court affirmed the judgment in favor of Brayton. In the present appeal, plaintiff contends that the trial court erred in awarding attorney fees to Brayton because under section 1194 fees may be awarded only to a prevailing plaintiff despite the inclusion in plaintiffs complaint of additional causes of action that are not explicitly covered by section 1194. Pending Supreme Court

1

All statutory references are to the Labor Code unless otherwise noted. 1

resolution of an issue that has divided the Courts of Appeal, we conclude Brayton is not entitled to recover statutory attorney fees in this action.2 Background Plaintiffs complaint against Brayton alleged causes of action for failure to compensate for all hours worked, failure to pay overtime compensation, failure to maintain accurate records and provide an itemized wage statement, failure to provide meal and rest breaks, a common count for indebtedness and a claim for waiting time penalties. Each cause of action was premised on plaintiffs allegation that Brayton incorrectly classified him as employed in a professional capacity, exempting the law firm from the obligation to pay him overtime wages and provide other benefits. Braytons motion for summary judgment was granted on the ground that plaintiff was properly classified as an exempt employee. The court found that "each and every one of plaintiffs stated causes of action, which are dependent on plaintiffs alleged misclassification, fail." Thereafter, judgment was entered in favor of Brayton and this court affirmed the judgment. (Zelasko-Barrett v. Brayton-Purcell, LLP (2011) 198 Cal.App.4th 582 .) In the meantime, Brayton moved for and was awarded attorney fees under section 218.5 in the amount of $120,000. Plaintiff filed a timely notice of appeal from the attorney fee order. Discussion Section 218.5 provides in relevant part, "In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorneys fees and costs to the prevailing party if any party to the
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In light of this conclusion we do not reach plaintiffs alternative argument that if some fees were properly awarded, the court erred in apportioning and fixing the amount of the award. Plaintiff notes in his opening brief that the court "erroneously applied $7,495.00 in costs of suit to the Judgment." The order appealed from, however, awarded Brayton only its attorney fees. We express no opinion concerning the propriety of any costs of suit awarded to Brayton. 2

action requests attorney's fees and costs upon the initiation of the action." Section 218.5 adds, however, "This section does not apply to any action for which attorneys fees are recoverable under Section 1194." Section 1194, subdivision (a) provides, "Notwithstanding any agreement to work for a lesser wage, any employee receiving less than the legal minimum wage or the legal overtime compensation applicable to the employee is entitled to recover in a civil action the unpaid balance of the full amount of this minimum wage or overtime compensation, including interest thereon, reasonable attorneys fees, and costs of suit." The unilateral fee-shifting provision is intended to " ,,encourage injured parties to seek redress--and thus simultaneously enforce [the minimum wage and overtime laws]--in situations where they otherwise would not find it economical to sue. " (Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1430-1431.) Plaintiff contends that the entirety of his "overtime compensation action" falls within the scope of section 1194, under which only a prevailing employee may recover attorney fees. Brayton acknowledges that it is not entitled to recover attorney fees on plaintiffs claim for unpaid overtime wages, but argues that it was properly awarded some fees because it prevailed on plaintiffs non-overtime causes of action, including plaintiffs claim for missed meal and rest breaks. Whether a prevailing employer may be awarded attorney fees under section 218.5 when the plaintiff joins in a single complaint a claim under section 1194 and other causes of action is currently pending before the California Supreme Court. (Kirby v. Immoos Fire Protection, Inc. (2010) 186 Cal.App.4th 1361, review granted Nov. 17, 2010, S185287 [2010 Cal. Lexis 11722] (Kirby); see also United Parcel Service Wage & Hour Cases (2011) 192 Cal.App.4th 1425, review granted May 11, 2011, S191908 [2011 Cal. Lexis 4410].) In Kirby the court held that section 1194 does not impose a complete bar against an employers recovery of attorney fees when a section 1194 claim and other claims are alleged in a single action. (Kirby, supra,186 Cal.App.4th 1361, review granted Nov. 17, 2010, S185287 [2010 Cal. Lexis 11722].) The court harmonized the two statutes "by holding that section 218.5 applies to causes of action alleging nonpayment of wages, 3

fringe benefits, or contributions to health, welfare and pension funds. If, in the same case, a plaintiff adds a cause of action for nonpayment of minimum wages or overtime, a defendant cannot recover attorneys fees for work in defending against the minimum wage or overtime claims. Nonetheless, the addition of a claim for unpaid minimum wages or overtime does not preclude recovery by a prevailing defendant for a cause of action unrelated to the minimum wage or overtime claim so long as a statute or contract provides for fee shifting in favor of the defendant." Analyzing the individual causes of action alleged in the employees complaint, the court concluded that section 1194 did not bar the employers recovery of fees on an employees claim for missed meal and rest breaks. The court explained that the employees claim that he was "owed an additional one hour of wages per day per missed rest period" was a claim seeking additional wages within the meaning of section 218.5 but not a claim for "unpaid minimum wages" within the meaning of section 1194. The California Supreme Court granted review noting, "The issues to be briefed and argued are limited to the following: (1) Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code,

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