California Court of Appeals, Fourth District, First Division
from an order of the Superior Court of San Diego County No.
37-2013-00036966- CU-DF-CTL, Ronald L. Styn, Judge. Affirmed.
McDougal, Love, Eckis, Boehmer & Foley, McDougal, Love,
Boehmer, Foley, Lyon & Canlas, Steven E. Boehmer and M.
Anne Gregory for Plaintiff and Appellant.
D. Crosby for Defendant and Respondent.
Michael Shames appeals from a postjudgment order regarding
attorney fees. Shames filed this lawsuit against Defendant
Utility Consumers' Action Network (UCAN) and two
individual plaintiffs, alleging multiple causes of action,
after UCAN terminated his employment. The case proceeded to
trial, and Shames prevailed on three causes of action,
including one in which he sought unpaid wages in the form of
bonus payments that were due to him pursuant to an incentive
program. After judgment was entered, Shames sought to recover
the attorney fees that he incurred in litigating his claims.
Shames relied on two statutes for his request for attorney
fees, but only one of those statutes is at issue in this
appeal. Specifically, Shames sought attorney fees pursuant to
Labor Code section 218.5,  which provides in full:
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. This section shall not
apply to an action brought by the Labor Commissioner. This
section shall not apply to a surety issuing a bond pursuant
to Chapter 9 (commencing with Section 7000) of Division 3 of
the Business and Professions Code or to an action to enforce
a mechanics lien brought under Chapter 4 (commencing with
Section 8400) of Title 2 of Part 6 of Division 4 of the Civil
This section does not apply to any cause of action for which
attorney's fees are recoverable under Section 1194."
trial court denied Shames's request for attorney fees
under section 218.5, concluding that he had failed to request
attorney fees "upon the initiation of the action"
because he did not request attorney fees in his initial
complaint. The court also concluded, in the alternative, that
Shames's request for attorney fees in his
amended complaint was not sufficient to permit him
to recover attorney fees as costs pursuant to section 218.5.
appeal, Shames challenges both of the trial court's
conclusions regarding his failure to meet the requirements of
section 218.5. We conclude that we need not decide whether
the trial court correctly determined that a request for
attorney fees under section 218.5 must be included in the
initial pleading, as opposed to an amended pleading, because
even if it would be sufficient under the statute to include a
request for attorney fees under section 218.5 in an amended
pleading, Shames's amended pleading did not request
attorney fees generally, nor did it request attorney fees
under section 218.5 with respect to the cause of action in
which Shames alleged that UCAN had failed to pay him his full
wages. Rather, the amended pleading included a reference to
section 218.5 only as to a cause of action that was not
brought on account of the nonpayment of wages, and one on
which UCAN, not Shames, prevailed. We therefore affirm the
order of the trial court.
AND PROCEDURAL BACKGROUND
founded UCAN, a nonprofit organization, in 1981 for the
purpose of "educating San Diego consumers concerning
regulated utility matters and representing their viewpoints
before regulatory bodies and proceedings." Shames served
as the executive director of UCAN for 27 years. A board of
directors, which included attorneys and public agency
administrators, oversaw Shames's activities and directed
the policies of the organization.
2012, Shames left his role as executive director, and the
UCAN board hired a new executive director. Shames offered to
remain on at UCAN as a part-time employee in order to assist
with ongoing legal actions until they were completed.
According to Shames, UCAN accepted his offer of part-time
employment. However, there was apparently a conflict between
Shames and the new executive director with respect to how to
litigate the cases, and, as Shames alleged in his original
and amended complaints, UCAN terminated his employment as of
June 20, 2012.
The Pleadings and Pretrial Motions
filed an action against UCAN on February 28, 2013. The
original complaint alleged 10 causes of action, including (1)
libel, (2) libel per se, (3) malicious prosecution, (4)
intentional interference with prospective business relations,
(5) blacklisting, (6) unauthorized computer use and access,
(7) publication of private facts, (8) wrongful termination,
(9) failure to indemnify costs, and (10) breach of contract
and declaratory relief. Shames did not include a request
for attorney fees in this complaint.
filed an anti-SLAPP motion with respect to portions of the
complaint. The court granted the anti-SLAPP motion with
respect to the causes of action for libel, intentional
interference with prospective economic damage, blacklisting,
and publication of private facts. UCAN also demurred to the
complaint, and the trial court sustained the demurrer, with
leave to amend, with respect to the causes of action for
wrongful termination and breach of contract.
meantime, UCAN also cross-complained against Shames, alleging
breach of fiduciary duty with respect to incentive bonuses
that Shames had taken during his tenure at UCAN. UCAN alleged
that the bonuses had not been approved by the Board. Shames
answered the cross-complaint, denying UCAN's allegations
and asserting a number of affirmative defenses. In the
concluding paragraph of Shames's answer, he requested
that judgment be entered in his favor on the cross-complaint,
and that he recover "costs of suit and reasonable
attorneys [sic] fees herein incurred, and any such
other relief as the court may deem just and proper."
filed a first amended complaint in October 2013. In the first
amended complaint, Shames alleged seven causes of action,
including the following: (1) unauthorized computer use and
access as to UCAN, (2) unauthorized computer use and access
as to individual defendants Aguirre and Peffer, (3) illegal
eavesdropping, (4) "waiting time penalties in violation
of Labor Code section 203" (formatting omitted), (5)
"knowing and intentional failure to comply with itemized
employee wage statement provision, as per Labor Code section
226(a)" (formatting omitted), (6) failure to indemnify
costs, and (7) breach of contract/declaratory relief.
are three references to a request for attorney fees in the
first amended complaint. The first reference, in paragraph 46
of the pleading, alleged as part of the third count for
illegal eavesdropping, provides: "46. Plaintiff is
entitled to statutory damages of $5, 000 as per Penal Code
Section 637.2(a)(1) and attorneys' fees pursuant to Civil
Procedure Section 1021.5."
second reference, found in paragraph 52, alleged as part of
the fourth count for "violation of Labor Code section
203" (formatting omitted), provides: "52. Plaintiff
was forced to retain counsel to negotiate full and proper
payment of wages and other reimbursables. In so doing,
Plaintiff incurred legal costs of $3, 000. Pursuant to Labor
Code Section 218.5, the court may award reasonable
attorney's fees and costs."
third reference, in paragraph 59, alleged as part of the
fifth count for "knowing and intentional failure to
comply with itemized employee wage statement provision"
(formatting omitted) in violation of section 226, provides:
"59. Plaintiff is entitled to penalties as follows:
[¶] a. Fifty dollars ($50.00) for the initial pay period
in which a violation occurred; and [¶] b. An award of
costs and reasonable attorneys' fees."
first amended complaint does not include any reference to
attorney fees in the paragraphs supporting count 7, in which
Shames alleges the breach of contract/declaratory relief
cause of action for failure to pay him multiple bonus
payments, totaling more than $150, 000, that he alleges were
due pursuant to UCAN's incentive plan. Nor does the first
amended complaint include a request for attorney fees in the
general prayer for relief.
filed an answer to the first amended complaint in November
2013. It did not request or otherwise mention attorney fees.
prior to the start of trial, Shames filed a
"Plaintiff's Trial Brief." (Formatting
omitted.) In that brief, Shames discussed all of the claims
alleged in the first amended complaint. With respect to count
7, for breach of contract with respect to the incentive
payments, Shames included the following contention, which
contains a reference to section 218.5:
Shames performed all, or substantially all, of the
significant work that the incentive contract required him to
do, resulting in a large award of attorney's fees to UCAN
by the Public Utilities Commission. Mr. Shames'
performance of these contractually obligated duties was
predicated upon the receipt of the incentives. Mr. Shames
therefore seeks all payments due as of time of judgment and a
declaration that he has a right to future payments as they
become due. ...