Deven v. Dynamic
Auto Images

 

 

 

 

 

 

 

 

 

Filed 1/22/14 
Deven v. Dynamic Auto Images CA4/3

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.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

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

NIKOLE DEVEN,         Plaintiff and Appellant,                    v.   DYNAMIC AUTO IMAGES,         Defendant and Respondent.

G048064            (Super. Ct. No. 30-2012-00572389)            O P I N I O N

 

                        Appeal
from a judgment of the Superior Court of
Orange County, David R. Chafee, Judge. 
Reversed and remanded.

                        Law
Office of Michael T. Welch and Michael T. Welch for Plaintiff and Appellant.

                        Del Mar Law Group,
JL Sean Slattery, David P. Hall and Azar M. Khazian for Defendant and Respondent.

 

*                      *                      *

                        Nikole Deven sued her
employer Dynamic Auto Images (Dynamic), alleging she was the victim of sexual href="http://www.fearnotlaw.com/">harassment in the workplace.  She also asserted that after she complained
of the harassment, she was subjected to retaliatory acts including withholding
of her wages, termination of her employment, and withholding of additional sums
due to her in the wake of termination.  She sought damages as well as an award of
attorney fees and costs against Dynamic. 
However, Deven voluntarily dismissed her lawsuit, and Dynamic thereafter
moved for an award of attorney fees pursuant to Labor Code section 218.5 (all
further undesignated references are to this code), arguing Deven’s lawsuit
qualified as an action for unpaid wages on which it had prevailed.  The trial court granted that motion but
awarded a reduced amount of fees, reasoning that only three of Deven’s six
causes of action – breach of contract, retaliation, and wrongful termination in
violation of public policy – were grounded on the alleged nonpayment of wages.  That fee award was later incorporated into the
judgment.

                        On appeal, Deven
challenges the award.  She does not
contest the propriety of the court’s decision to apportion the fees among her
causes of action, but argues the resulting award was overly generous because
only one of her six causes of action, not three, could be properly viewed as
actions brought for nonpayment of wages.

                        We reverse.  Although the trial court acted within its
discretion in deciding to apportion the fees among the covered and non-covered
claims, it nonetheless erred by hewing too closely to the repetitive allegations
and overlapping causes of action identified in Deven’s complaint while doing so,
resulting in an award of fees based explicitly on causes of action which do not
support such an award.  On remand, the
court must award only those fees necessary to defend against Deven’s claims for
wages, rather than by simply dividing the causes of action asserted by Deven. 

 

 

 

FACTS

 

                        Deven’s
complaint alleges, as facts common to all causes of action, that she was
employed by Dynamic with her principal responsibilities including sales of
products and services.  During the course
of her employment, she was subjected to an “escalating pattern of
sexually-laden statements and conduct by her manager” (who is also Dynamic’s
owner.)  She resisted and objected to
these statements and conduct, despite her fear of adverse employment
consequences.  Thereafter, consistent
with her fear, she was subjected to retaliatory and adverse actions by Dynamic,
including “denial and refusal to pay compensation due and owing” and “termination
of [her] employment.”

                        Based
on those basic facts, her complaint set forth causes of action styled (1) “sexual
harassment,” (2) “sex discrimination,” (3) “retaliation,” (4) “failure to
prevent harassment,” (5) breach of
contract, and (6) “wrongful termination in violation of public policy.”  (Initial capitalization omitted.)  In her prayer, Deven sought an award of
attorney fees, as well as costs. 

                        Shortly
after the complaint was filed, Dynamic served Deven with written discovery, and
she failed to respond in a timely fashion. 
As a consequence, Dynamic served and filed a href="http://www.fearnotlaw.com/">motion to compel her to respond to the
discovery and sought an award of monetary sanctions against her.  Deven also failed to respond to that motion.  Instead, she unilaterally abandoned the
action by filing a voluntary dismissal of the complaint two days before to the
scheduled hearing.    

                        Following
the dismissal, Dynamic filed a motion requesting an award of $14,442 in href="http://www.fearnotlaw.com/">attorney fees in its favor, on the basis
it qualified as the prevailing party on a claim for wages under section
218.5.  The trial court granted the
motion, but concluded that only three of Deven’s six causes of action qualified
as “action[s] brought for the nonpayment of wages.”  (Ibid.)  Specifically, the court found that “the 3rd
cause of action for retaliation, the 5th cause of action for breach of
contract, and half the 6th cause of action for violation of public policy”
qualified as actions for nonpayment of wages. 
Consequently, the court ordered Deven to pay 42 percent of the fees
claimed by Dynamic or $6,065.64.  

 

DISCUSSION

 

>1.  The Record on Appeal is Sufficient.

                        We
first address Dynamic’s contention the judgment should be affirmed simply
because Deven failed to provide us with an adequate record on appeal.  Dynamic argues that in order to assess
whether the trial court’s discretionary award of fees was correct, we must
consider “all of the circumstances” surrounding its order (quoting >Loomis v. Loomis (1960) 181 Cal.App.2d
345, 348), and that we cannot do that here without considering the declaration
and notice of lodgment it filed with the trial court in support of its motion
for fees – neither of which was included in the record Deven provided to us.

                        We are
unpersuaded by the contention.  While it
is true that a judgment on appeal is presumed correct, not every circumstance surrounding rendition of the judgment is automatically
relevant in evaluating any assertion that
it is erroneous.  The only circumstances
we are concerned with are those that actually bear upon the particular assertion
advanced by the appellant.

                        In this
appeal, Deven makes a very narrow assertion, i.e., that the court committed
error in determining whether the causes of action alleged in her complaint legally
qualify as “action[s] brought for the nonpayment of wages” under section 218.5.
 Such an inquiry would not, as a general
rule, involve consideration of extrinsic evidence, and there is no suggestion
in Dynamic’s fee motion (which is included in our record) that it urged the
court below to do so.

                        Significantly,
Deven does not challenge the sufficiency of the evidence to support the amount
of fees awarded to Dynamic in its motion. 
Her argument is a legal, not a factual one.  Because there is no indication that the
evidence relied upon by Dynamic below would be relevant in evaluating Deven’s
contention on appeal, we cannot conclude she was obligated to include it in her
appellate record.

 

>2.  FEHA and Common Law Tort Causes of Action Are
Not Actions for Nonpayment of Wages.

                        The
trial court’s fee award was based on section 218.5, which is part of a
statutory scheme governing the obligation of employers to promptly pay
wages.  (§ 200 et seq.)  The statute provides in pertinent part that “[i]n
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.  This section shall not apply to an action
brought by the Labor Commissioner.” 
(§ 218.5.)  Effective January 1, 2014, any party seeking attorney fees under section 218.5 who is not an
employee may recover fees only if the trial court “finds the employee brought
the court action in bad faith.” 
(§ 218.5, subd. (a).)

                        Based
on the allegations of Deven’s complaint, the trial court determined that three
of her six causes of action – breach of contract, retaliation, and wrongful
termination in violation of public policy – qualified as actions brought for the
nonpayment of wages.  As the trial court
noted, Deven’s cause of action for retaliation explicitly describes Dynamic’s
retaliatory conduct as including not only its termination of her employment,
but also its denial of her “earned
compensation.”  (Italics added.)  Deven’s cause of action for wrongful
termination in violation of public policy not only incorporates her entire
retaliation cause of action by reference, but then explicitly >realleges that Dynamic’s alleged
violation of the public policy requiring it to pay her earned wages is part of
the new cause of action. 

                        And
since Deven herself had included a request for attorney fees in her complaint,
the court determined Dynamic was entitled to an award of fees under section
218.5, as the prevailing party on those covered causes of action.

                        On
appeal, Deven does not challenge the trial court’s basic interpretation of the fee
statute, nor does she quibble with its decision to apportion the fees among her
causes of action.  She likewise accepts
the court’s determination that her breach of contract cause of action qualifies
as an action for nonpayment of wages under the statute. 

                        But
what Deven does challenge is the court’s specific determination that her causes
of action for retaliation and wrongful termination in violation of public
policy also qualified as actions for
nonpayment of wages, and thus as appropriate bases for a fee award.  Her theory is that because each of these
causes of action constitutes a “distinct tort
claim [based] on a completely different policy rationale” than the one underlying
a claim for nonpayment of wages, they cannot also be construed as alleging a claim
which entitles the employer to recover fees under section 218.5.  We agree.

            An “action brought
for the nonpayment of wages” “is an action brought on account of nonpayment of wages.  The words ‘nonpayment of wages’ in section
218.5 refer to an alleged legal violation, not a desired remedy.”  (Kirby
v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th 1244, 1256, original
italics.)  Nonpayment of wages must be
the gravamen of the cause of action to qualify for an attorney fee award under
section 218.5.  (Ibid.)  For example, in >Kirby, the Supreme Court concluded a
claim under section 226.7 for failure to provide meal and rest breaks was not a
claim for nonpayment of wages because the gravamen of the claim was the failure
to provide the statutorily-mandated breaks even though the remedy was an
additional hour of wages for each violation. 
(Ibid.) 

Here, the gravamen of Deven’s retaliation claim was that Dynamic
unlawfully retaliated against her for engaging in protected activities—complaining
about Dynamic’s sexual harassment and discrimination—even though the
retaliation took the form of nonpayment of wages and termination of her
employment.  Similarly, the gravamen of
Deven’s wrongful termination in violation of public policy claim was that
Dynamic terminated her employment because Deven engaged in protected
activity.  (4 Wilcox, Cal.
Employment Law (2012) Liability for Wrongful Termination and Discipline, § 60.04[1][a],
p. 60-39 [essential elements of wrongful termination in violation of public
policy claim include adverse employment action based on employee engaging in
conduct protected by public policy].) 
The only one of Deven’s claims on which the gravamen was nonpayment of
wages was the claim for breach of contract and that is the only claim that
supports an attorney fee award under section 218.5.  Although the trial court has broad discretion
to apportion fees between covered and non-covered claims in cases where an
award is proper (Carver v. Chevron
U.S.A., Inc. (2004) 119 Cal.App.4th 498, 505), it abuses its discretion
when the apportionment is based on an error of law (Costco Wholesale Corp. v. Superior Court (2009) 47 Cal.4th 725
[“[a]n abuse of discretion is shown when the trial court applies the wrong
legal standard”]).  That is what occurred
here.

                        Initially,
we note that Deven has only one right to recover wages she actually earned, but
were not paid to her.  That claim is
contractual in nature, and if she were able to prove unpaid wages were owed to
her, she would be entitled to recover them without regard to Dynamic’s alleged motive
for the nonpayment.  Conversely, if those
wages were not owed to her as a matter of contract law, they would also not be
recoverable as part of a tort cause of action for retaliation or wrongful
termination.  Thus, Deven’s reliance on
that nonpayment as part of her separate claims for retaliation and wrongful
termination did not actually expand the scope of the wage claim.

                        More
significantly, Deven’s causes of action for retaliation and for wrongful
termination in violation of public policy both arise under the California Fair
Employment and Housing Act (FEHA) (Gov. Code, § 12900, et seq.)  FEHA makes it illegal for an employer “to discriminate
against [an employee] in compensation or in terms, conditions, or privileges of
employment,” on account of the employee’s “race, religious creed, color,
national origin, ancestry, physical disability, mental disability, medical
condition, genetic information, marital status, sex, gender, gender identity,
gender expression, age, or sexual orientation,” or “to refuse to hire or employ
the person or to refuse to select the person for a training program leading to
employment, or to bar or to discharge the person from employment or from a
training program leading to employment [on any of those grounds.]”  (Gov. Code, § 12940, subd. (a).)

                        The
FEHA has its own statute governing awards of attorney fees for claims falling
within it (Gov. Code, § 12965, subd. (b)), and our record reflects no
request for such fees was made by Dynamic. 
Thus, the trial court erred by purporting to award fees to Dynamic based
directly on Deven’s FEHA retaliation cause of action.  We must consequently reverse the order and
remand the case to the trial court for reconsideration of the award

                        Having
said that, however, we do not mean to imply that on remand the trial court would
be restricted to awarding only one-sixth of the fees claimed by Dynamic – as Deven
claims – merely because Deven organized her allegations into what she characterized
as six separate causes of action.  It is
the general rule that “[w]hen a cause of action for which attorney fees are
provided by statute is joined with other causes of action for which attorney
fees are not permitted, the prevailing party may recover only on the statutory
cause of action.”  (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127,
1133.)  But an exception exists for fees
“incurred for representation of an issue common to both a cause of action for
which fees are permitted and one for which they are not.”  (Ibid.)  In that situation, an allocation need not be
made and all fees “incurred on the common issues qualify for an award.”  (Ibid.)  An exception to the general rule also exists
when “issues are so interrelated that it would have been impossible to separate
them into claims for which attorney fees are properly awarded and claims for
which they are not.”  (>Ibid.) 


Accordingly, Dynamic may recover its fees for all work related to
issues presented by Deven’s breach of contract claim regardless of whether that
work also related to issues presented by her FEHA or other tort causes of
action, but Dynamic may not recover its fees for any work related to issues
presented solely by those other causes of action.  Stated another way, Dynamic may recover only
those fees necessary to defend against Deven’s claim for unpaid wages.  The precise allocation of fees among the
various issues presented is vested in the trial court’s sound discretion and it
will be reversed only for an abuse of that discretion provided the court
applies the foregoing standards.  (>Amtower v. Photon Dynamics, Inc. (2008)
158 Cal.App.4th 1582, 1604.)

                       

DISPOSITION

 

                        The
judgment is reversed and the case is remanded to the trial court with
directions to reconsider the fee award. 
The parties are to bear their own costs on appeal.

 

 

                                                                                   

                                                                                    RYLAARSDAM,
ACTING P. J.

 

WE CONCUR:

 

 

 

ARONSON, J.

 

 

 

IKOLA, J.