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Volume XIII, Number 35

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Plaintiff and Defendant Are “Prevailing Parties” in Same Action

In Sharif v. Mehusa, Inc., (Cal. App. 2d Dist. Oct. 14, 2015) 2015 Cal. App. LEXIS 897, plaintiff brought three claims for unpaid overtime, unpaid wages, and violation of California’s Equal Pay Act against her former employer. At trial, plaintiff only succeeded on her Equal Pay Act claim and was awarded $26,300. As the prevailing party under the Equal Pay Act claim, plaintiff filed a motion for attorney’s fees seeking $280,432, based on a $140,216 loadstar with a multiplier of two.

Defendant also sought fees and cost in the amount of $36,982 pursuant to California Labor Code section 218.5. Section 218.5 awards fees and costs to the prevailing party of a wage claim. Because defendant had successfully defended against plaintiff’s unpaid wage claims, it declared itself a prevailing party under section 218.5.

Plaintiff sought to strike defendant’s motion for fees on the grounds that the plaintiff was the prevailing party within the meaning of California Code of Civil Procedure section 1032(a)(4), which defines a “prevailing party” as “the party with the net monetary recovery.” The plaintiff argued there can only be one prevailing party in a civil action, and because plaintiff had been awarded the Equal Pay Act claim, she was the sole prevailing party.

The trial court disagreed and awarded defendant $31,709 in fees. The trial court also found plaintiff unreasonably claimed almost all of her attorney fees were intertwined with her Equal Pay Act claim. Accordingly, the trial court reduced plaintiff’s fee award to $35,054, and offset the award by the $31,709 awarded to defendant, with a net fee award to plaintiff of only $3,709.

On appeal the Court of Appeal for the Second Appellate District upheld the trial court’s ruling. The Court held: “[W]hen there are two fee shifting statutes in separate causes of action, there can be a prevailing party for one cause of action and a different prevailing party for the other cause of action.” The Court of Appeal noted that defendant was certainly the prevailing party on the unpaid wage claims because the jury awarded nothing to plaintiff on those claims. Because the Equal Pay Act and section 218.5 each included fee shifting provisions with separate requirements, the civil case resulted in two prevailing parties.

Notably, the Court considered section 218.5 in its pre-amended form, which awarded fees and costs to a prevailing party in wage claims. The amended version of section 218.5, effective January 1, 2014, no longer permits fee awards to employers unless the court finds the employee brought the wage claim in bad faith. Therefore, a different set of facts would be necessary to see this exact situation play out again, but it is now clear that if multiple claims are brought in a single civil action, it is possible to have more than one prevailing party entitled to fees and costs.

Jackson Lewis P.C. © 2023National Law Review, Volume V, Number 297

About this Author

Cary G Palmer, Attorney, Jackson Lewis Law Firm
Office Managing Principal

Cary G. Palmer is Office Managing Principal of the Sacramento, California, office of Jackson Lewis P.C. He represents management in employment, labor and benefits law and related litigation.

Mr. Palmer practices before the state and federal courts in California, the United States Department of Labor, the United States Equal Opportunity Commission, the California Department of Fair Employment and Housing, the California Division of Labor Standards Enforcement, and the California Workers’ Compensation Appeals Board. Mr. Palmer also defends management in statewide...

Shane R. Larsen, Jackson Lewis, hostile work environment lawyer, wrongful termination attorney

Shane R. Larsen is an Associate in the Sacramento, California, office of Jackson Lewis P.C. His practice comprises a broad spectrum of employment-related litigation and counseling.

Mr. Larsen’s litigation practice includes retaliation, discrimination, hostile work environment, wrongful termination, unfair competition, and commercial litigation. His counseling practice includes advising clients regarding employment policies and practices on federal and state wage and hour laws, severance agreements, leaves of absence and...