Limited Success Has To Be Considered On Remand.
"S. Russell, 33 E. 22nd St. Newsboy, 12 years of age. Selling newspapers 2 years. Average earnings 20 cents daily. Selling newspapers own choice. Father earns $18 weekly Boy deposits earnings in du Pont Savings Bank, and on Saturday night works for Reyold's candy shop, delivering packages. Don't smoke. Visits saloons. Works 5 hours daily, except Saturday, when he works 11. Location: Wilmington, Delaware." Photographer: Lewis Wickes Hine. May 1910. Library of Congress.
Espejo v. The Copley Press, Inc., Case No. D065397 (4th Dist., Div. 1 July 7, 2017) (published) was a class action brought by home newspaper delivery carriers of the San Diego Union-Tribute claiming they were misclassified as independent contractors rather than employees. Because there was an unfair competition claim, the trial was bifurcated and the first phase went to the court for determination given that a 17200 claim is equitable in nature. The trial judge awarded a total compensation judgment of about $5 million. Then, under CCP § 1021.5 (the private attorney general statute), the trial judge awarded fees of $6,160,416, although determining that no fees were allowable under Labor Code section 2802 based on plaintiffs’ abandonment of certain claims.
The Court of Appeal affirmed in part, reversed in part, and remanded based on appeals by both sides. The basic reason for reversal in favor of the newspaper was that the trial judge did not consider offsets for certain payments made to carriers. This necessitated a relook at the fee award as well, with the appellate court observing that a possible fee reduction might be in order based on limited success under the Hensley federal test applied in 1021.5 cases. The 4/1 DCA also found it was not error to deny a positive multiplier and sustained the 2802 abandonment ruling.