Case Name: Cathrine Martinez v. Quality Respite and Home Care, Inc., et al.
Case No.: 17-CV-308087

This is a putative class action alleging wage and hour violations by defendant Quality Respite and Home Care, Inc. Before the Court is defendant’s motion for fees and costs pursuant to Labor Code section 218.5, which plaintiff opposes. Also before the Court is plaintiff’s motion to tax costs.

Plaintiff’s request for judicial notice of various filings in this action, filed in support of her opposition to defendant’s motion for fees and costs, is GRANTED. (Evid. Code, § 452, subd. (d).)

I. Factual and Procedural Background

According to the operative complaint, Quality provides caregivers for people who are disabled or have special needs. (Complaint, ¶ 13.) Plaintiff worked for defendant as a caregiver from June 2012 to June 27, 2015. (Ibid.) She last earned $10.30 an hour and alleges that her position was non-exempt. (Ibid.) Plaintiff worked 40 to 70 hours per week performing duties including visiting clients in their homes and providing “assistance with activities of daily living,” such as light housekeeping, meal preparation, grocery shopping, and running errands. (Ibid.)

Plaintiff alleges that she was not paid overtime or double time and was not permitted to take lawful meal periods or rest breaks. (Complaint, ¶¶ 14-20.) As a result, Quality failed to timely pay plaintiff for all wages owed to her upon termination. (Id. at ¶ 21.) Individually and on behalf of a putative class, plaintiff filed suit on March 30, 2017 for (1) failure to pay overtime, (2) failure to pay minimum wages, (3) unpaid meal period premiums, (4) unpaid rest period premiums, (5) wages not timely paid upon termination, (6) non-compliant wage statements, (7) penalties under the Private Attorneys General Act (“PAGA”), and (8) violation of Business & Professions Code section 17200, et seq.

On January 8, 2018, Quality filed a motion for summary judgment. Plaintiff filed an ex parte application requesting that the Court deny the motion as inadequately noticed, and the Court vacated the original hearing date. Defendant filed a renewed motion for summary judgment on March 2, which was ultimately heard on September 14. Quality sought summary judgment on the grounds that plaintiff was exempt from overtime, meal period, and rest break requirements because she was a “personal attendant” under the applicable wage order and because defendant is exempt from the Domestic Workers Bill of Rights as a vendor under the Lanterman Developmental Disabilities Services Act. The Court found in defendant’s favor on both issues and granted summary judgment for Quality on plaintiff’s individual claims. Judgment was entered for the defendant on December 4, and plaintiff subsequently filed a notice of appeal.

Quality moved for its fees and costs on December 17, 2018 and filed a memorandum of costs the following day. Plaintiff filed an opposition to Quality’s motion, along with a motion to tax costs. The parties’ motions regarding fees and costs have now come on for hearing.

II. Motion for Fees and Costs Pursuant to Labor Code Section 218.5

With exceptions not applicable here, Labor Code section 218.5 provides:

In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action. However, if the prevailing party in the court action is not an employee, attorney’s 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.

(Lab. Code, § 218.5, subd. (a).) To the extent that section 218.5 applies to some causes of action in a plaintiff’s complaint but not others, the court must apportion the prevailing party’s fees so that any award includes only fees attributable to the eligible claims. (See Aleman v. AirTouch Cellular (2012) 209 Cal.App.4th 556, 584 [having found that reporting time claims were subject to section 218.5, “the trial court must determine the amount of reasonable attorney fees awardable to AirTouch for defense of the reporting time causes of action, apportioning fees incurred for the separate causes of action as appropriate”].)

Section 218.5 does not apply to any cause of action for which attorneys’ fees are recoverable under Labor Code section 1194, which addresses claims for minimum wage and overtime violations on which only prevailing employees may recover attorney fees. (Lab. Code, §§ 218.5, subd. (b) [“This section does not apply to any cause of action for which attorney’s fees are recoverable under Section 1194”], 1194, 1194.3; see also Aleman v. Airtouch Cellular (2012) 209 Cal.App.4th 556, 580 [discussing section 1194’s “one-way fee-shifting rule” in favor of employees].) Here, then, section 218.5 does not apply to plaintiff’s first and second causes of action for failure to pay overtime and minimum wages.

As urged by plaintiff, the Supreme Court of California has held that section 218.5 also does not apply to claims for unpaid meal and rest period premiums. (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1255 [“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.”].) Nor does that section apply to plaintiff’s derivative claims for waiting time penalties. (See Ling v. P.F. Chang’s China Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1261 [“Because a section 203 claim is purely derivative of ‘an action for the wages from which the penalties arise,’ it cannot be the basis of a fee award when the underlying claim is not an action for wages.”].) Section 218.5 accordingly does not apply to plaintiff’s third through fifth causes of action.

The remaining sixth through eighth causes of action are also derivative of plaintiff’s other claims and are not themselves claims for the nonpayment of wages. Furthermore, as to the PAGA claim, the PAGA statute provides for an award of fees and costs to prevailing employees only. (See Lab. Code, § 2699, subd. (g)(1).)

In sum, section 218.5 does not provide a basis for an award of fees and costs with regard to any of the claims in this action, regardless of whether the Court were to agree with Quality that this action was brought in bad faith. Defendant’s motion for fees and costs pursuant to that section is accordingly DENIED.

III. Motion to Tax Costs

Quality did not file an opposition to plaintiff’s motion to tax costs. Though it also did not file a formal statement of non-opposition, the Court interprets Quality’s decision not to file an opposition as a consent to plaintiff’s motion and will reduce Quality’s costs to $1,309.88. If Quality did not intend to consent to plaintiff’s motion to tax costs, it should alert the Court by challenging its tentative ruling.

Plaintiff’s motion to tax costs is GRANTED in the full amount of $2,925. Quality shall recover the other $1,309.88 in costs claimed in its memorandum of costs filed on December 18, 2018.

The Court will prepare the order.