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Kirby v. Immoos Fire Protection

July 27, 2010

ANTHONY KIRBY ET AL., PLAINTIFFS AND APPELLANTS,
v.
IMMOOS FIRE PROTECTION, INC., DEFENDANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Reversed with directions. (Super. Ct. No. 07AS00032).

The opinion of the court was delivered by: Sims, J.

CERTIFIED FOR PUBLICATION

This appeal challenges an award of attorney's fees to an employer who successfully defended against allegations of labor law violations brought by two former employees. Appellants Anthony Kirby and Rick Leech, Jr. (collectively Kirby) sued respondent Immoos Fire Protection, Inc. (Immoos) as well as 750 Doe defendants for violating various labor laws as well as the unfair competition law (Bus. & Prof. Code, § 17200 et seq.). Kirby dismissed the case after the trial court denied class certification. The court subsequently awarded $49,846.05 in attorney's fees to Immoos for its defense of the first, sixth and seventh causes of action.

For reasons that follow, we shall reverse the award of attorney's fees and remand to the trial court with directions to award Immoos reasonable fees for its defense of the sixth cause of action only.

PROCEDURAL HISTORY

Kirby's First Amended Complaint

We begin by setting forth the allegations in the operative complaint. In August 2007, Kirby filed an amended complaint that alleged six causes of action against Immoos, and a seventh that named 750 Doe defendants but omitted Immoos as a party.

The first cause of action alleged that Immoos engaged in 12 enumerated instances of unlawful and unfair business practices in violation of the unfair competition law as set forth in Business and Professions Code section 17200 et seq.*fn1

The second cause of action alleged that Immoos failed to pay Kirby all wages at each pay period and at Kirby's discharge, as required by Labor Code*fn2 sections 201,*fn3 203,*fn4 and 204.*fn5

The third cause of action alleged that Immoos failed to pay overtime compensation, as required by sections 204.3,*fn6 510,*fn7 and Industrial Wage Commission Order No. 16-2001 (Order No. 16-2001).*fn8

The fourth cause of action alleged that Immoos secretly paid Kirby wages less than that required by statute, regulation, and contract, a violation of section 223.*fn9

The fifth cause of action alleged that Immoos failed to provide accurate itemized wage statements to Kirby, as required by section 226.*fn10

The sixth cause of action alleged that Immoos failed to provide Kirby with rest periods as required by Order No. 16-2001.*fn11

The seventh cause of action alleged that 750 Doe defendants violated section 2810*fn12 by entering into contracts with Immoos while knowing that the contracts did not provide sufficient funds to allow Immoos to comply with all applicable labor and wage laws. Kirby later amended this cause of action to identify defendants Shea Homes, Inc., Hilbert Homes, Inc., Meritage Homes of California, Inc., and D.R. Horton, Inc.

Kirby subsequently settled with Shea Homes, Inc., Hilbert Homes, Inc., Meritage Homes of California, Inc., and D.R. Horton, Inc., in agreements not made part of the court record.

In November 2008, Kirby moved for certification of class action. The motion was denied in January 2009.

In February 2009, Kirby dismissed with prejudice his complaint as to all causes of action and all parties.

Award of Attorney's Fees to Immoos

In April 2009, Immoos moved to recover attorney's fees from Kirby pursuant to section 218.5.*fn13 Kirby opposed the motion arguing, in part, that the unilateral fee-shifting provision in favor of plaintiffs provided by section 1194*fn14 barred an award of fees to Immoos.

In June 2009, the trial court awarded Immoos attorney's fees "for [its] defense of the [first, sixth] and [seventh] causes of action." In granting attorney's fees for a portion of Immoos's defense against the unfair competition claim, the court explained that "the [first] cause of action also incorporated allegations of failure to provide rest periods (sixth cause of action) and for the parallel allegations from the seventh cause of action, pursuant to [section] 2810."

The trial court explained its award of fees to Immoos for the sixth cause of action as follows: "The [sixth] cause of action is not subject to section 1194,[*fn15 ] but only to . . . section 2699.[*fn16 ] No showing has been made that Plaintiffs complied with the private attorney general requirements. Further, it is apparent from the express language of . . . section 218.5,[*fn17 ] that only section 1194 can defeat a prevailing party employer's entitlement to attorneys' fees under that statute, under the rule of statutory construction, expressio unius est exclusio alterius - the expression of one thing is the exclusion of another. As only [section] 1194 is named as an exception to 218.5, no other Labor Code sections may be implied to defeat a prevailing party employer's entitlement to attorneys' fees under that section."

The trial court granted Immoos fees for the seventh cause of action, explaining: "Defendant Immoos was united in interest with the Doe defendant's in the [seventh] cause of action. However, Immoos defended that cause of action alone, until the Does were added by amendment after the filing of the First Amended Complaint. Further, although [Kirby] asserts they fully recovered damages by way of settlement with the Doe defendants, they only settled with four of the 750 defendants, and continued to prosecute the [seventh] cause of action. Thus, Immoos is entitled to the attorneys' fees spent in defending this cause of action."

In addition to the fees allowed for defense against the complaint, the trial court awarded Immoos fees for bringing the motion for attorney's fees. Altogether, attorney's fees were awarded to Immoos in the amount of $49,846.05.

Kirby filed a notice of appeal on June 25, 2009. A formal order was subsequently ...


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