Plaintiffs’ Pleading Were Broad and Only Dealt With Unpaid Wages.
In the companion cases of Evangelina Tun Cun v. Cafe Tiramisu LLC, Case No. A131240 (1st Dist., Div. 5 Nov. 30, 2011) (unpublished) and Maria Tun Cun v. Cafe Tiramisu LLC, Case No. A131241 (1st Dist., Div. 5 Nov. 30, 2011) (unpublished), plaintiffs brought claims for unpaid wages, but eventually lost other claims after some convoluted proceedings and voluntarily dismissed or suffered an adverse summary judgment of the unpaid wage claims. Employer sought fees under Labor Code section 218.5, a reciprocal fee-shifting provision in these type of disputes, and won–garnering $18,592.50 in fees against Evangelina and $36,612.50 in fees against Maria Tun.
They both appealed; they both lost.
They tried to recast their claims as overtime claims, attempting to trigger the pro-employee unilateral fee-shifting provision of Labor Code section 1194. The appellate court would have none of it, deciding in both cases that unpaid wages claims were at issue and that plaintiffs’ voluntary dismissal of the claims/summary judgment made employee the prevailing party in both cases.