(1) Motion for Attorney Fees (2) Motion to Tax Costs (3) OSC re Dismissal

Tentative Ruling: (1) Defendant/Cross-Complainant Clarice J. Letizia’s Motion for Attorney Fees pursuant to Labor Code section 2802(c) is DENIED. Labor Code section 2802 requires indemnification for expenses incurred by employees under the specified conditions. The Judgment in this case is that Letizia’s employment was terminated on October 12, 2011. As a matter of law, she was no longer an employee as of that date. As such, she cannot recover attorney fees under section 2802.

The parties consume substantial time in their papers arguing whether Letizia was an employee or an independent contractor. These arguments may have had some relevance during arguments about jury instructions or in closing arguments, but now they are extraneous. As it stands today, there is a Judgment that incorporates the jury’s verdict. From the Judgment, it is clear is Letizia incurred expenses after she was terminated. The question is what status was she in when this occurred?

The verdict form shows Letizia’s employment was terminated on 10-12-11. [Question 1] However, it also establishes she entered into a contract on 10-12-11. [Question 2] The parties had entered into a separate severance agreement concerning payment for wrap-up work on cases Letizia had been handling for the firm. The jury’s finding was that she did not do all, or substantially all, of the significant things that the severance contract required her to do. [Question 3]

Turning to Question 9:

Did Letizia incur necessary expenses after October 12, 2011, related to traveling to Cleveland, Ohio, in the performance of her duties as an employee, or pursuant to the directions of Wentworth, Paoli & Purdy, LLP? [Emphasis added]

The jury answered this question “Yes”.

The Labor Code does not expressly define an employee for purposes of section 2802. (Cal. Prac. Guide: Employment Litigation (The Rutter Group 2013), §3:16.5.) The employee has the burden to prove the conduct that was the basis for the suit arose in the course and scope of employment. (Evid. Code. §500; Cassady v. Morgan, Lewis & Bockius, LLP (2006) 145 Cal.App.4th 220, 224-225.) Reading the Judgment as a whole, the only reasonable conclusion to be drawn is that Letizia did not meet her burden, and the 10-12-11 agreement was not an “employment” contract. So, as to Question 9, it does not support a finding of an employment relationship, but is instead consistent with the established termination of employment. This is not sufficient to support a claim under the Labor Code. Under the general principle that independent contractors are not employees, Labor Code section 2802 does not apply to Letizia. (S.G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3rd 341, 349.)

(2) Plaintiff/Cross-Complainant Wentworth, Paoli, and Purdy, LLC’s Motion to Tax and/or Strike Costs is DENIED. Defendant/Cross-Complainant Clarice J. Letizia dba Letizia Law Group shall recover costs in the amount of $3,193.50. Letizia is to prepare an amended Judgment for signature by the Court.

This Motion was not even close to being timely filed. (CRC Rule 3.1700(b)(1).) There is no evidence of a CRC Rule 3.1700(b)(3) extension. WPP did, in fact, waive its objections to the Memorandum of Costs.

It is well settled that statutory costs are recoverable as a matter of right by the prevailing party, which Letizia was on the Cross-Complaint. Even if the objections to two costs in Item 13 had any merit, which is not established since no evidence or authority is cited to say they are, Letizia is still entitled to costs as a prevailing party. Since the Motion was filed too late, she recovers all, $3,193.50