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Maria Escriba v. Foster Poultry Farms


September 29, 2011


The opinion of the court was delivered by: Oliver W. Wanger United States District Judge



Plaintiff Maria Escriba brings this motion for judgment as a matter of law ("JMOL"), or in the alternative, motion for new trial following jury verdicts in a five day trial. The jury found that Plaintiff had not given Defendant Foster Poultry Farms ("FPF") sufficient notice to take leave pursuant to the Family Medical Leave Act ("FMLA") or California Family Rights Act ("CFRA").*fn1 Accordingly, Plaintiff was not at any time under the protections of the FMLA or CFRA and not entitled to judgment on her FMLA/CFRA claims.

Plaintiff contends that informing her supervisors of her FMLA-qualified reason for leave equates to sufficient notice under FMLA and as such "there is no legally sufficient evidentiary basis to support the verdict for [D]efendant." Defendant opposes Plaintiff‟s motions, asserting that there is substantial evidence that FPF complied with the FMLA requirements and Plaintiff refused to exercise her right to take FMLA leave, amounting to insufficient notice.

Plaintiff further moves to amend the Judgment as Plaintiff contends she is entitled to judgment as the prevailing party solely on her unpaid wages claim.


On October 26, 2009, Plaintiff filed her Complaint alleging: Unlawful Interference with FMLA rights; Discrimination under the FMLA; Failure to provide CFRA leave; Unlawful discharge and discrimination under CFRA; Failure to prevent discrimination under CFRA; and Termination in violation of California‟s public policy. Compl., ECF No. 1.

Plaintiff‟s First Amended Complaint ("FAC") added a claim for failure to pay earned wages, including vacation pay, and waiting time penalties. First Am. Compl., ECF No. 8. Defendant asserted fourteen affirmative defenses in its Answer to Plaintiff‟s FAC. Answer, ECF No. 15.

The parties filed cross motions for summary judgment on June 3, 2011. Mots. Summ. J., ECF Nos. 33, 41. The Memorandum Decision Order granted in part and denied in part the cross-motions. Summ.

J. Order, ECF No. 98.

Trial began on July 13, 2011. On July 21, 2011, before the

case was submitted to the jury, both parties filed motions for JMOL. ECF Nos. 197, 198. The Court heard oral argument on the cross-motions the same day. Trial Tr. 130-149, July 21, 2011. On July 22, 2011, the jury returned a verdict in favor of Defendant. ECF No. 208.

Plaintiff now submits her Renewed Motion for Judgment as a Matter of Law and Alternative Motion for a New Trial pursuant to Fed. R. of Civ. Pro. 50(b) and 59(a). Plaintiff also moves under to under Rule 59(e) to amend the Judgment in order to recognize her prevailing party status on the unpaid wages claim.


Based on all the evidence entered and all the testimony taken, this case boils down to a classic "he said, she said" credibility dispute centered around what Plaintiff told her supervisors, and what they said in response, when she requested a vacation to see her sick father in Guatemala.

In fall 2007, Plaintiff learned that her father in Guatemala was ill. Plaintiff contends that on November 16, 2007, she received a phone call from her niece that Plaintiff‟s father had taken a turn for the worse. Plaintiff booked a roundtrip ticket to Guatemala, leaving on November 23, 2007 and returning on December 27, 2007.

The following Monday, Plaintiff met with her direct supervisor, Linda Mendoza, and requested vacation time off to visit her sick father. A conversation ensued regarding Plaintiff‟s request. A dispute arose about who was involved in this conversation. Plaintiff, who claims to speak limited English, testified that no interpreter was present. Defendant‟s witnesses testified to the opposite. There is also a dispute regarding what was said during the conversation.

Ultimately, Ms. Mendoza approved Plaintiff for two weeks of vacation. Plaintiff‟s vacation slip states that she was required to return on December 10, 2007.

Plaintiff then spoke with the facility superintendant, Edward Mendoza. Witness testimony is highly conflicting regarding what was said during this conversation. Plaintiff claims Mr. Mendoza orally approved an extended leave of indefinite duration, explaining that she needed only to come back with a doctor‟s note to substantiate her need for FMLA leave. Mr. Mendoza testified that he told Plaintiff if she needed time past her vacation time off, that she would need to fax or send human resources ("HR") a doctor‟s note, presumably from Guatemala.

Plaintiff left for Guatemala without contacting the HR office as she had on the fifteen prior occasions she had requested FMLA leave.

While in Guatemala Plaintiff learned that she would need to stay past her scheduled return date. Plaintiff testified that she unsuccessfully attempted to call and to fax a note to FPF. Defendant‟s witnesses testified that they did not receive any contact from Plaintiff, telephonic or by fax, while she was in Guatemala.

Plaintiff returned to the United States on December 27, 2007. She learned that her job had been terminated pursuant to FPF‟s policy that employees are automatically terminated if they do not call or come to work within three days of the expiration of their scheduled time off.


A.Judgment as a Matter of Law.

Fed. R. Civ. Pro. 50(a) provides:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against

the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

The standards governing a motion for judgment as a matter of law pursuant to Rule 50 are reiterated in Gibson v. City of Cranston , 37 F.3d 731, 735 (9th Cir. 1994):

When confronted with a motion for judgment as a matter of law . . . a trial court must scrutinize the proof and the inferences reasonably to be drawn therefrom in the light most amiable to the non-movant ... In the process, the court may not consider the credibility of witnesses, resolve conflicts in testimony, or evaluate the weight of evidence ... A judgment as a matter of law may be granted only if the evidence, viewed from the perspective most favorable to the non-movant, is so one-sided that the movant is plainly entitled to judgment, for reasonable minds could not differ in the outcome ....

B.Motion for New Trial.

A motion for new trial "may be granted to all or any of the

parties and on all or part of the issues ... for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. R. Civ. Pro. 59(a). "The grant of a new trial is "confided almost entirely to the exercise of discretion on the part of the trial court.‟" Murphy v. City of Long Beach , 914 F.2d 183, 186 (9th Cir. 1990).

A new trial is necessary when the court, upon reviewing the evidence presented at trial and considering the jury‟s verdict, "is left with the definite and firm conviction that a mistake has been committed." Tortu v. Las Vegas Metro. Police Dept. , 556 F.3d 1075, 1087-88 (9th Cir. 2009) (quoting Landes Constr. Co v. Royal Bank of Canada , 833 F.2d 1365, 1371-72 (9th Cir. 1987)). A motion for new trial may also be granted to correct an erroneous evidentiary ruling that results in substantial prejudice to a party. Ruvalcaba v. City of Los Angeles , 64 F.3d 1323, 1328 (9th Cir. 1995).

The grounds upon which a new trial has been granted are:

(1) where the jury‟s verdict is so contrary to the clear weight of the evidence; (2) if the verdict is based on false evidence; or (3) if there would otherwise be a miscarriage of justice. Roy v.Volkswagen of America, Inc. , 896 F.2d 1174, 1176 (9th Cir. 1990).

"While the trial court may weigh the evidence and credibility of the witnesses, the court is not justified in granting a new trial "merely because it might have come to a different result from that reached by the jury.‟" Id. quoting Wilhelm v. Associated Container Transp. (Australia) Ltd. , 648 F.2d 1197, 1198 (9th Cir. 1981); Wallace v. City of San Diego , 479 F.3d 616, 630 (9th Cir. 2007).


A.Applicable FMLA Law.*fn2

Under the FMLA, 29 U.S.C. § 2601, et seq. , the employee must establish: (1) she was eligible for the FMLA‟s protections, (2) her employer was covered by the FMLA, (3) she was entitled to leave under the FMLA, (4) she provided sufficient notice of her intent to take leave, and (5) her employer denied her FMLA benefits to which she was entitled. Sanders v. City of Newport, --- F.3d ---, 08-35996, 2011 WL 905998, *5 (9th Cir. Mar. 17, 2011) (citing Burnett v. LFW Inc. , 472 F.3d 471, 477 (7th Cir. 2006)). The first three elements were satisfied, leaving only these issues for jury to decide: whether Plaintiff gave sufficient notice of her need for FMLA leave, and if so, whether Defendant denied Plaintiff FMLA benefits to which she was entitled.

The jury found that Plaintiff did not give sufficient notice. A determination of insufficient notice means that Defendant cannot be held liable on any of Plaintiff‟s FMLA/CFRA claims. "When the employee fails to give his employer proper notice, the employer is under no duty to provide FMLA leave." Righi v. SMC Corp ., 632 F.3d 404, 408 (7th Cir. 2011). Without sufficient "notice that [an employee] need[s] or intend[s] to take medical leave," the employer‟s obligations under the FMLA are never triggered in the first place. Walls v. Central Contra Costa Transit , --- F.3d ---, 2011 WL 3319442, *2 (9th Cir. 2011).

The sole issue on Plaintiff‟s JMOL is whether evidence exists to support the jury‟s verdict that her notice was insufficient. To give sufficient notice for leave, "[e]mployees need only notify their employers that they will be absent under circumstances which indicate that the FMLA might apply." Bachelder v. Am. W. Airlines, Inc. , 259 F.3d. 1112, 1130 (9th Cir. 2001). "The employee need not expressly assert rights under the FMLA or even mention FMLA, but may only state that leave is needed." 29 C.F.R. § 825.303(b). Once an employee alerts her employer to her potential need for FMLA-qualifying leave, an employer must "inquire further of the employee if it is necessary to have more information about whether FMLA leave is being sought by the employee, and[/or] obtain the necessary details of the leave to be taken." 29 C.F.R. § 825.302(c); see also Bailey v. Southwest Gas Co. , 275 F.3d 1181, 1185 (9th Cir. 2002). "The employee. . . will be expected to provide more information." 29 C.F.R. § 303(b).

B.Sufficiency of Notice.

1. Plaintiff‟s Initial Request For Time Off.

It is undisputed that Plaintiff‟s initial request was for vacation time off.*fn3 The dispute centers around whether Plaintiff, nonetheless, should have been placed on FMLA leave because Defendant knew that Plaintiff was taking time off to care for her sick father in Guatemala. Defendant does not dispute that it had knowledge of Plaintiff‟s reason for leave, but asserts it acted within the boundaries of the FMLA by inquiring further into Plaintiff‟s leave request and Plaintiff ultimately refused her right to take medical leave.

Defendant presented evidence that Plaintiff‟s understanding regarding taking FMLA leave was that she had to go to FPF‟s HR office, and not her direct supervisor, to request time off.*fn4 Tr. 44:21-45:2 (Escriba testifed that each time she needed medical leave she would bring a doctor‟s note to the HR office and not go to her direct supervisor). Plaintiff‟s direct supervisor, Linda Mendoza, also acknowledged that HR handles FMLA leave requests. Ms. Mendoza testified that if an employee came in and stated ""I need time off because I have a family member ill.‟ That would be a trigger. I would automatically send them to HR. Tr. 100:14-17, July 14, 2011.

Defendant presented additional evidence that Plaintiff had knowledge of FMLA leave and how to invoke it. Plaintiff testified that she had successfully taken FMLA leave on fifteen prior occasions. Tr. 40:13-14, July 15, 2011 (Escriba agreeing that she took "leave for medical or family reasons 15 different times"); see also Joint Exs. 403, 408, 412, 415, 426 and 103.K. On each of those occasions, she went directly to the HR office with a doctor‟s note for the requested time off, filled out the proper paperwork and was successfully granted FLMA leave. Tr. 44:21-45:2, July 15, 2011.

Plaintiff did not go to the HR office on this occasion. She went to her supervisor Ms. Mendoza because Ms. Mendoza is the person who approves vacation time. Tr. 76:14-20, July 15, 2011. Plaintiff requested vacation time off and her request was granted. Defendant, however, presented evidence that once Plaintiff stated that her need for leave was to fly to Guatemala to care for her sick father, Ms. Mendoza inquired further into Plaintiff‟s leave request through translator Alfonso Flores:

Q. And you said in your deposition that her exact words were, quote, "Yeah, my father is ill." Close quote. Does that sound right?

A. That's what she said, her father was ill.

Q. And also you said that she told you her father was in Guatemala.

A. That is true.

Q. Were you unaware of that before that moment?

A. Yes. [. . .]

Q. And then the next thing that you recall is that you asked Maria Escriba, you said, in your deposition, this was a quote. Quote, "Maria, do you really think two weeks is enough time?" Close quote. Is that correct?

A. That is correct.

Q. That's the next thing you said to her?

A. Yes, it was.

Q. In English.

A. In English.

Q. And she looked at you and, in your deposition, you said she looked at me and, quote, she goes, yeah, that will be okay," close quote. Is that what you remember her saying?

A. That's what I remember her saying.

Q. And it was at that point that you decided to go get another supervisor to come in and help you to translate something. Correct?

A. That is correct.

Q. And to help you communicate with Maria Escriba.

A. Well, to make sure she could understand what I was asking.

Q. All right. Because you weren't sure whether or not she understood.

A. Since there were multiple words --

Q. Well, just --

A. -- put into a sentence, I wanted to make sure she understood.

Q. And you weren't sure that she did.

A. I was not sure.

Q. Okay. So the supervisor came in, his name is Alfonso Flores.

A. Alfonso Flores.

Q. And then you asked him to translate the following. . . "Ask her if she needs more time. She's telling me she's going to Guatemala." Close quote.

Is that what you asked Mr. Flores to translate?

A. Yes.

Q. And you said Mr. Flores asked her, and then Maria indicated to him "no." Is that correct? [. . .]

A. She said the word "no." [. . .]

Q. And then you told me that Alfonso turned to you and said, "Well["] -- and you quoted again in your deposition. ["]Well, she's saying she doesn't need any more time." Close quote. Is that what he said to you then?

A. Yes.

Q. And you said to him, quote, "Look, ask her one more time." Close quote. That's what you asked him to do?

A. That is correct.

Q. And then he did that and she, in turn, again said no. 13

A. That is correct. [. . .]

Q. Then you looked at Maria, as you were filling out the vacation form, and you told her, in English, "Maria, if you need more time, you need to go to the HR department and do the paperwork." Correct?

A. Alfonso translated that also.

Tr. 117:10-120:22; 121:5-9, July 14, 2011.

Alfonso Flores‟ testimony corroborates Ms. Mendoza‟s testimony:

Q. The words you -- that you told me in English, in your deposition, that Linda asked you to translate were, quote, "Does Maria want more time off after her vacation?" Close quote. That's what she asked you to translate.

A. Yes.

Q. And you did that.

A. Yes.

Q. And Maria Escriba said, you told me in your deposition, she said no?

A. That is correct.

Q. And then Linda had you ask the same question over again.

A. Yes.

Q. And Maria said no.

A. Yes.

Q. That's what you told me in your deposition. But you also told me that Maria didn't just say "no," she said something like "No, I don't need it." Or "no, I don't want it."

A. The last -- yes, the last time I asked her, she says, "No, I don't need -- I don't want it."

Q. Don't want it. Okay. And then after the second time you asked that question and Maria said "no," what you told me in your deposition was that Linda Mendoza then said, "Tell her if she needs time, she needs to go to HR." Is that -- did Linda say that to you?

A. That is correct.

Q. And you told me that you translated that.

A. Yes.

Tr. 113:23-115:1, July 20, 2011.

Several reasonable inferences can be drawn from this evidence. First, because both Plaintiff and Linda Mendoza operated under the knowledge that FMLA leave is approved only by the HR office, and Linda Mendoza instructed Plaintiff to go to the HR office if she needed more time, the jury could reasonably infer that Linda Mendoza was further inquiring into whether Plaintiff was requesting family medical leave by instructing her to go to the HR office.

The conversation between Ms. Mendoza, Mr. Flores and Plaintiff in light of Plaintiff‟s knowledge and history regarding FMLA leave is substantial evidence that FPF complied with the FMLA notice regulations by inquiring into "whether FMLA leave [was] being sought by [Plaintiff]." 29 C.F.R. § 825.302(c). By Defendant‟s presentation of the evidence, Plaintiff was well of the need to go to HR to request leave, yet Plaintiff unequivocally declined to take more time and/or go to HR to request FMLA leave.

Plaintiff disputes that a conversation between Ms. Mendoza, Mr. Flores and Plaintiff occurred. Plaintiff testified that she spoke to Linda Mendoza without a translator and that Plaintiff requested additional time off, but Linda Mendoza refused to grant it:

[A]: On our last day of work, she [Linda Mendoza] called me, she called me into her office. She gave me the paper. And she said, "Maria, two week of vacation for you." I said, "Okay, Linda. And then I said, the way that I could, "Please one week or two week free for me." "No, Maria," she said. After that, I said "Thank you."

Q. And Ms. Escriba, what did you mean when you asked Linda Mendoza, One -- "Please, one or two weeks free for me"?

A. For her to give me two more weeks leave.

Q. And were you asking for unpaid leave or paid leave?

A. Without pay.

Tr. 199:4-14, July 14, 2011 (Escriba).

This conflicting testimony over Plaintiff‟s request for leave raises credibility issues. On JMOL, however, "the court may not consider the credibility of witnesses [or] resolve conflicts in testimony." Gibson , 37 F.3d at 735 (emphasis added).

Alternatively, Plaintiff contends that Defendant improperly asserts a "wavier" defense by arguing that it was proper not to place Plaintiff on FMLA leave. Plaintiff states that because it is undisputed that Plaintiff told Ms. Mendoza and Mr. Mendoza that she was leaving to care for her sick father (an FMLA-qualifying reason), Plaintiff should have automatically been placed on FMLA leave. Plaintiff either misunderstands the doctrine of waiver and the FMLA regulations or misunderstands Defendant‟s argument. It is true that an employee cannot waive the ability to take FMLA leave. That is not Defendant‟s argument. Defendant‟s cited evidence demonstrates that Plaintiff was given the option and prompted to exercise her right to take FMLA-leave, but that she unequivocally refused to exercise that right.

Section 825.303(b) states that once an employee alerts the employer that she may be taking leave for a FMLA-qualified reason, "[t]he employer will be expected to obtain any additional required information through informal means. The employee. . . will be expected to provide more information." The regulation does not say, as Plaintiff apparently believes, that once an employee alerts the employer that she may be taking leave for a FMLA-qualified reason, the employee will be automatically placed on FMLA leave.

Contrary to Plaintiff‟s position, an employee may decline to take FMLA leave. Simply because an employee‟s reason for taking time off qualifies that employee to use his/her FMLA leave, does not mean that employee is forced to take or is automatically placed on FMLA leave; he/she has a choice.*fn5 See, e.g., Ridings v. Riverside Med. Ctr. , 537 F.3d 755, 769 n.3 (7th Cir. 2008) (suggesting that an employer may not force the employee to take FMLA leave if the employee has some other basis for a leave "that is acceptable under the employer‟s policies."). Here Defendant presented substantial evidence that FPF inquired into Plaintiff‟s leave request and Plaintiff declined to take FMLA leave.

Viewing the evidence in a light most favorable to Defendant, it was reasonable for the jury to find that Plaintiff‟s notice was insufficient based on the mutually corroborating testimony of Ms. Mendoza and Mr. Flores regarding their conversations with Plaintiff, in combination with Plaintiff‟s extensive knowledge of how to request and her history of successfully giving notice of her need/desire for FMLA leave, and taking such leave, yet failing to request it in this circumstance.

2. Post-Expiration of Plaintiff‟s Approved Two-Week Leave. Defendant asserts that the jury was reasonable in finding that Plaintiff made no effort to request FMLA leave and/or to extend her leave once Plaintiff left for Guatemala.

It is undisputed that Plaintiff knew she "needed to be back to work" on December 10th and that if she missed three consecutive working days without reporting, she would be terminated. Tr. 37:9-38:18, 91:6-7, July 15, 2011 (Escriba). Defendant‟s witnesses testified, however, that they received no contact whatsoever from Plaintiff while she was in Guatemala well past the expiration of her approved time off. See Tr. 165:14-15, July 15, 2011.

Plaintiff testified that she tried to call FPF before her expected return date to inform FPF that she would not be returning. Tr. 82:9-11, July 15, 2011. Plaintiff had no record of such a phone call. Defendant points to Plaintiff‟s full cross-examination on the subject which shows an inconsistency between what she stated under oath at her unemployment hearing and what she testified to on the stand:

Q. You called before you were supposed to be back to work; right?

A. I think so.

Q. All right.

MR. ZARLENGA: All right. Well, I'd like to play the transcript of the [Plaintiff‟s unemployment] hearing. Tr. 82:24-83:4, July 15, 2011.

"Question: Why didn't you call your employer to let them know that you would not be coming back by the 10th? "Answer: I just couldn't think about it. I didn't remember. "Question: So you said, quote, I couldn't think about it, unquote, can you explain that?

"Answer: Yes. I couldn't think clearly.

"Question: Because?

"Answer: Because I had buried my mother a year prior and I was -- and I saw that my father was very ill."

Q. Now, let's focus on the calls that you say you tried to make from Guatemala to Foster Farms. Do you have any records to show us here today to support your testimony that you made such calls?

A. No.

Q. You said also that you tried to fax things to Foster Farms.

A. Yes.

Q. Do you have any records to support your testimony that you tried to fax anything to Foster Farms in November or December of 2007?

A. I have Yvette's card.

Q. Yvette's card does not prove that you tried to fax anything to Foster Farms; does it?

A. I don't have proof of that. [. . .]

Q. While you were at Guatemala in November and December of 2007, you talked to your husband on the telephone; isn't that correct?

A. Yes.

Q. And your husband was working at Foster Farms at that time; is that right?

A. Yes.

Q. He still works there today; right?

A. Yes. [. . .]

Q. Does he use the same office of personnel that you use?

A. Yes.

Q. So while you were in Guatemala and talking to your husband from time to time, did you ask him to go to the department of personnel at Foster Farms and tell them on your behalf that you would not be coming back?

A. No.

Tr. 84:7-87:2, July 15, 2011.

Based on the verdict, the jury did not believe Plaintiff‟s testimony. The jury may take into account whether other evidence contradicts the witness‟s testimony and choose to give little or no weight to Plaintiff‟s testimonial evidence. Jury Instructions

7. The jury was reasonable in refusing to believe Plaintiff‟s inconsistent testimony and find that Plaintiff made no effort to give notice of an extension after her approved leave ended.

C.Conclusion Re: Sufficiency of Notice.

Based on the evidence presented, the jury found FPF‟s case

more credible and persuasive, as is their prerogative. See e.g. , Jury Instruction 7 ("You may believe everything a witness says, or part of it, or none of it."). Plaintiff received her day in court to present the facts and evidence as she asserts they happened. The jury weighed the all evidence, taking into account both Plaintiff‟s and Defendant‟s view and ultimately decided in Defendant‟s favor based on substantial evidence she did not request FMLA leave. Plaintiff‟s JMOL is DENIED.*fn6

Plaintiff‟s motion for new trial is also DENIED. In order to grant a new trial, the court must be "left with the definite and firm conviction that a mistake has been committed". Landes Constr. Co. , 833 F.2d at 1372 (citing Tennant v. Peoria & Pekin Union Ry. , 321 U.S. 29, 35 (1944). Taking all evidence into account, including Defendant‟s substantial evidence that Plaintiff did not exercise her right to take FMLA leave and, following the lapse of her approved time off, did not attempt to contact FPF to extend her leave, the court would simply be substituting a different view of the evidence; i.e., Plaintiff‟s view, for that of the jury. Based on the totality of circumstances, the record does not create a "firm conviction" that the jury was mistaken.

D.Amendment of the Judgment.

Plaintiff seeks to amend the judgment pursuant to Fed. R.

Civ. Pro. 59 contending that, pursuant to California case law, she is the prevailing party on her unpaid wages claim. Defendant rejoins that under federal case law, Plaintiff is not the prevailing party.

The complaint in this action alleges federal question jurisdiction under 28 U.S.C. § 1331. In diversity cases, state laws governing availability of attorney's fees for claims under state law - i.e., which party is the prevailing party - are deemed "substantive" because they serve specific state policy governing litigation. Alyeska Pipeline Service Co. v. Wilderness Soc. , 421 U.S. 240, 259 (1975). The Erie principles apply equally in the context of supplemental jurisdiction (28 U.S.C. § 1367). Mangold v. Calif. Pub. Util. Comm'n , 67 F.3d 1470, 1478 (9th Cir.1995) (citing United Mine Workers v. Gibbs , 383 U.S. 715 (1966)); see also Diamond v. John Martin Co. , 753 F.2d 1465, 1467 (9th Cir.1985) ("The rule in this circuit requires that federal courts. . . apply state law with regard to the allowance (or disallowance) of attorneys' fees."). Here, supplemental jurisdiction exists over Plaintiff‟s Cal. Labor Code claim for unpaid wages. California law applies to the determination of prevailing party/availability of attorneys' fees.

Under California law:

[A]n attorney fee award may be justified even when plaintiff's legal action does not result in a favorable final judgment. . . . The critical fact is the impact of the action, not the manner of its resolution. [¶] [A]attorney fees may be proper whenever an action results in relief for the plaintiff, whether the relief is obtained through a "voluntary‟ change in the defendant's conduct, through a settlement, or otherwise. Thus, an award of attorney fees may be appropriate where plaintiffs' lawsuit was a catalyst motivating defendants to provide the primary relief sought. A plaintiff will be considered a "successful party‟ where an important right is vindicated "by activating defendants to modify their behavior.

Graham v. DaimlerChrysler Corp. , 34 Cal.4th 553, 565-567 (2004) (emphasis added and citations omitted).

Here, Defendant had a duty under the Cal. Labor Code to pay Plaintiff "immediately" upon termination for earned wages and accrued vacation time. See Cal. Labor Code § 201 ("If an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately.") Plaintiff was terminated on or about December 12, 2007. FPF admits it failed to timely and fully compensate Plaintiff for all earned wages and accrued vacation time at her termination. Nearly two and a half years later, on March 10, 2010, Plaintiff filed her FAC, at which time she still had not been compensated. Plaintiff‟s FAC prayed for payment of her wages, accrued vacation time and the waiting time penalty authorized by Cal. Labor Code §§ 201, 227.3, and 203. Only after filing the FAC did Defendant pay Plaintiff what she was owed. See Def.‟s SUF, Decl. Skol, Ex. X ("On or about May 3[,] 2010, I caused to be sent to plaintiff‟s counsel a check in the amount of $2,330.40 for all waiting penalties.")

Plaintiff has demonstrated that her "lawsuit was a catalyst motivating defendants to provide the primary relief sought." Plaintiff is the prevailing party on her unpaid wages claim. The judgment will be amended accordingly. Plaintiff is entitled to costs and fees limited only to the time and efforts spent litigating her unpaid wages claim, none of which include the jury trial or any legal services rendered after March 10, 2010. In all other respects, Defendant is the predominately prevailing party.

VI.CONCLUSION. For the reasons cited above:

1. Plaintiff‟s JMOL and Motion for New Trial are DENIED. Substantial evidence was presented for a reasonable jury finding that Plaintiff‟s notice to take FMLA leave was insufficient.

2. Plaintiff‟s Motion to Amend the Judgment is GRANTED. Plaintiff is the prevailing party only on her state unpaid wages claim. Plaintiff is entitled any attorneys fees limited solely to the time and efforts spent litigating her unpaid wages claim prior to March 10, 2010.

3. Defendant is entitled to recover their costs of suit.

Defendants shall submit an order in conformity with this decision within two (2) calendar days following electronic service of this order.


Oliver W. Wanger

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