Matter Remanded for New Apportionment.
In Deven v. Dynamic Auto Images, Case No. G048064 (4th Dist., Div. 3 Jan. 22, 2014) (unpublished), plaintiff dismissed a harassment lawsuit which contained some tort and contractual claims. Defendant moved to recover some attorney’s fees under Labor Code section 218.5, an unpaid wage fee-shifting statute, with the lower court determining that 3 of the 6 claims involved unpaid wages and fixing fees at $6,065.64 of the requested $14,442 (about 42%).
This one got reversed on appeal. The reason was that the apportionment was based on an error of law. Only one claim for breach of contract truly involved unpaid wages, with the other two tort claims arising more under FEHA (and with the defense not asking for FEHA fees, something hard to do given the frivolous/without basis conditions necessary to sustain such an award). Matter remanded to refix fees, in a 3-0 decision authored by Acting Presiding Justice Rylaarsdam.