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Moreno v. Bassi (CA5 F078400 6/8/21) Mixed Minimum Wage-FEHA Claims/Attorney Fees and Costs

A jury awarded plaintiff Marina Moreno $16 in unpaid minimum wages and $16 in liquidated damages and found against her on causes of action alleging she had been raped by her employer.  In posttrial proceedings, the trial court determined plaintiff was the prevailing party for purposes of Code of Civil Procedure section 1032 and awarded her $19,523 in costs.  The court also awarded plaintiff $3.20 in attorney fees based on the formula in section 1031 that multiples the wages recovered by 20 percent.

Plaintiff’s appeal and defendant’s cross-appeal raise issues about the award of costs and the award of attorney fees.  We note that the Legislature addressed cases involving a small award of damages and a relatively large amount of costs by enacting section 1033.  It allows a trial court to reduce the costs otherwise recoverable as a matter of right under section 1032 “where the prevailing party recovers a judgment that could have been rendered in a limited civil case.”  (§ 1033, subd. (a).)  Defendant asserts the costs awarded to plaintiff could have been reduced under section 1033.  However, defendant’s primary argument asserts Government Code section 12965, subdivision (b) bars plaintiff’s recovery of many of the costs.  That provision controls the award of costs on claims alleging violations of the California Fair Employment and Housing Act (FEHA; Gov. Code, § 12900 et seq.).

In this case, plaintiff lost all the FEHA claims, lost some non-FEHA claims, and prevailed on some non-FEHA claims.  In such a situation, the award of costs is governed by the interaction of section 1032 and Government Code section 12965, subdivision (b).  We conclude Government Code section 12965, subdivision (b) bars plaintiff from recovering the costs caused solely by the inclusion of the FEHA causes of action in this lawsuit.  The other costs incurred in the lawsuit are recoverable under section 1032, subject to the discretionary exception in section 1033, subdivision (a).  On remand, the trial court must determine which cost items, if any, are barred by Government Code section 12965, subdivision (b) before entering an award in accordance with sections 1032 and 1033.

The parties’ dispute over attorney fees requires an interpretation of section 1031 and Labor Code section 1194.  The literal terms of these attorney fees provisions cover this case because of the recovery of minimum wages.  In situations where these statutes overlap, we conclude Labor Code section 1194 controls because it is the more specific statute and its attorney fees provision is the most recently enacted.  Accordingly, the trial court should have exercised the discretion granted by Labor Code section 1194 and awarded plaintiff reasonable attorney fees, rather than applying section 1031 and awarding 20 percent of the wages recovered.  On remand, the trial court must determine the amount of reasonable attorney fees.

In the unpublished portion of this opinion, we address plaintiff’s challenges [to] the trial court’s denial of her motion for a new trial.  We conclude plaintiff was entitled to prejudgment interest on the damages awarded for the Labor Code violations; the trial court did not commit evidentiary error when it allowed the defendant to testify that he had never been convicted of a sex crime; plaintiff’s assertions of defense counsel misconduct do not justify reversal because the jury was not prejudiced against plaintiff; and the trial court properly granted the motion for nonsuit by defendant’s wife.  Thus, the motion for new trial was properly denied.

We therefore affirm the judgment in part, reverse it in part, and remand for further proceedings on the issues of attorney fees and costs.