Marr v. Bank of America National Association

Filing 116

ORDER DENYING DEFENDANT'S MOTION FOR ATTORNEY'S FEES by Hon. William Alsup denying 110 Motion for Attorney Fees.(whalc2, COURT STAFF) (Filed on 7/20/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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WILLIAM MARR,

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For the Northern District of California

United States District Court

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No. C 09-05978 WHA

Plaintiff,
v.

ORDER DENYING
DEFENDANT’S MOTION FOR
ATTORNEY’S FEES AND
VACATING HEARING

BANK OF AMERICA NATIONAL
ASSOCIATION,
Defendant.

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/

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INTRODUCTION

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In this settled-and-closed case concerning employment expenses and disability benefits,

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Bank of America National Association moves to recover attorney’s fees incurred while defending

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against plaintiff William Marr’s wage-related claims. For the following reasons, the motion is

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DENIED.
STATEMENT

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Plaintiff William Marr was a mortgage-loan officer for Bank of America. After going on

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disability in 2009, he filed this action for, among other things, (1) failure to reimburse business

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expenses (Section 2802 of the California Labor Code), (2) unlawful wage deductions (Section

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221 of the California Labor Code), and (3) failure to pay wages (Section 200 et seq. of the

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California Labor Code). These wage-related claims are the ones at issue in defendant’s fees

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motion.

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Earlier this year, plaintiff moved for summary judgment as to all three claims, and

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defendant moved for summary judgment as to the second claim and part of the third. On March

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8, an order granted in part and denied in part cross-motions for partial summary judgment. Of the

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three aforementioned claims, each included multiple theories for why plaintiff should recover. In

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the order on the summary judgment motions, many of the theories were resolved, but none of the

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claims was fully resolved.

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First, for the alleged violation of Section 2802, plaintiff’s motion for summary judgment

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was denied, and the alleged failure to reimburse business expenses (at least those incurred after

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August 20, 2005) was not fully resolved by the order (Dkt. No. 95 at 2–3, 17).
Second, plaintiff’s claim of violation of Section 221 concerning wage deductions was

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For the Northern District of California

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broken into two categories: non-assistant expenses and assistant expenses. As a result of the

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order, plaintiff’s motion for summary judgment as to the claim for non-assistant expenses (closing

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costs, loan-processing fees, extension fees, underage charges, uncollected/waived fee charges,

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misquote and rate-lock failure charges, and curtailment charges) was denied, and defendant’s

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motion was granted (id. at 4–8). Concerning wage deductions for both of plaintiff’s assistants’

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bonuses and one of his assistant’s salary, the record was not clear on the issues and both parties’

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motions for summary judgment were denied (id. at 9). Thus, the claim for unlawful deductions

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from plaintiff’s salary was not fully resolved by the order.

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Third, plaintiff claimed that Bank of America failed to pay him earned wages, namely the

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full extent of long-term disability benefits and bonuses for “over 40 referrals” (id. at 9).

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Plaintiff’s claim for payment of disability benefits was dismissed. The order did not, however,

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resolve the theory of recovery for failure to pay bonuses. So, the claim for failure to pay wages

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was not fully resolved by the order.

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These claims were trial-ready. Instead, the parties settled. This does not change the fact
that the claims were not fully resolved on the merits at the time of settlement.
On April 26, the parties filed a voluntary dismissal. The parties also included a proposed

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form of judgment, listing some claims to be dismissed with prejudice and others without

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prejudice. This stipulation was problematic because its terms were dictated by the parties rather
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than the summary judgment order, and because it provided for plaintiff to pursue an appeal, even

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though a plaintiff may not appeal following a voluntary dismissal pursuant to a settlement

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agreement (Dkt. No. 102 (citing Concha v. London, 62 F.3d 1493, 1507 (9th Cir. 1995)).

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Therefore, an order specifically noted these issues, but given that the parties had filed a voluntary

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dismissal, the file was closed and no final judgment was entered. The parties filed another

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stipulated request for entry of judgment, but this second request was also denied. Fourteen days

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later, defendant filed this motion to recover attorney’s fees pursuant to Section 218.5 of the

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California Labor Code.
ANALYSIS

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In an action involving state-law claims, a court applies “the law of the forum state to

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For the Northern District of California

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determine whether a party is entitled to attorney[’s] fees, unless it conflicts with a valid federal

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statute or procedural rule.” MRO Commc’ns, Inc. v. AT & T Co., 197 F.3d 1276, 1282 (9th Cir.

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1999). Section 218.5 of the California Labor Code dictates that in “[a]ny action brought for the

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nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the

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court shall award reasonable attorney’s fees and costs to the prevailing party” upon request, if, as

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is the case here, the party requested that relief at the start of the case. FRCP 54(d) states that,

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unless otherwise ordered, a party must move for attorney’s fees no later than 14 days after the

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entry of judgment. So, in order to recover attorney’s fees for wage claims, a party must have

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requested that fee recovery at the initiation of the suit and moved for those fees within 14 days of

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judgment.

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The awarding of attorney’s fees to a prevailing party for unpaid wage claims is

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mandatory. Earley v. Superior Court, 79 Cal. App. 4th 1420, 1427 (2000). Whether a party

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prevailed, however, is for courts to determine. Donner Mgmt. Co. v. Schaffer, 142 Cal. App. 4th

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1296, 1310 (2006) (citations omitted). Here, defendant moves to recover attorney’s fees in

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relation to the wage claims upon which they “prevailed.”

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In evaluating whether a party prevailed, a court makes a determination “on a practical

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level.” Donner Mgmt. Co., 142 Cal. App. 4th at 1310 (citations omitted). This practical decision

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focuses “on the extent to which the party realized its litigation objectives by judgment, settlement,
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or otherwise.” Castro v. Superior Court, 116 Cal. App. 4th 1010, 1019 (2004) (citation omitted).

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A movant need not prevail on all of his claims in order to be deemed a prevailing party. Lyons v.

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Chinese Hosp. Ass’n, 136 Cal. App. 4th 1331, 1345 (2006) (granting plaintiff attorney’s fees for

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prevailing on one of six claims because that one claim granting plaintiff a comprehensive

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injunction made plaintiff a “prevailing” party on that issue). Still, a party that succeeds as to one

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part of an action is not automatically labeled a prevailing party. See Galan v. Wolfriver Holding

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Corp., 80 Cal. App. 4th 1124, 1129 (2000).

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The parties cite numerous decisions that apply this standard, resolved on various

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procedural postures. Although defendant tries to distinguish those decisions that denied
attorney’s fees, they are in fact much closer to our situation than the decisions cited that awarded

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fees. For instance, California courts have repeatedly held that a plaintiff’s voluntary dismissal

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does not necessarily make a defendant a prevailing party. In Galan, part of the settlement

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agreement included a voluntary dismissal of claims against Wolfriver. Nevertheless, “the merits

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of the dispute against Wolfriver were never resolved.” Id. at 1129. So, “at the practical level[,]

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the court concluded that there was no prevailing party.” Id. at 1130. Likewise, in Gilbert v. Nat’l

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Enquirer, Inc., 55 Cal. App. 4th 1273, 1277 (1997), the court held that after voluntarily

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dismissing some claims in order to expedite others, it was not possible to determine “whether

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either side had prevailed on a practical level.” Id. at 1277–78.

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So too here. Plaintiff’s voluntary dismissal did not confer prevailing party status on

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defendant. The settlement did not resolve the merits of the case or the claims. Defendant tries to

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distinguish the above actions from ours in that there was a “judgment” made in the instant action.

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While in the aforementioned decisions the voluntary dismissals occurred without judgments on

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the merits — whereas here the order for partial summary judgment was a decision on the merits

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and defendant prevailed over many of plaintiff’s theories — in the present action defendant

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obtained a ruling against plaintiff only on several parts of the claims. Defendant did not fully

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prevail over any wage-related claim after partial summary judgment. Plaintiff sought lost wages

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on myriad different theories. Some of those theories were adjudicated and dismissed. Still, real

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material issues remained to be adjudicated at trial — including unpaid reimbursements (relating
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to various expenses), unlawful wage deductions (relating to salary and bonuses of assistants), and

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unpaid wages (relating to bonuses for referrals). As such, there was no clear winner as to any of

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these three claims after the order for partial summary judgment.

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Defendant argues that it “mostly” prevailed and that “mostly” prevailing entitles it to

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recover attorney’s fees. Not so. Although defendant is right that prevailing on one claim and not

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another does not limit its right to attorney’s fees, see Akins v. Enterprise Rent-A-Car Co., 79 Cal.

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App. 4th 1127, 1133 (2000), it has not fully prevailed on any of the claims relating to unpaid

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wages and fringe benefits. Thus, defendant is not the prevailing party as to any of those claims.

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Defendant cites no decisions where a party is said to have prevailed on a whole claim after

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succeeding on only some theories within that claim.
Moreover, even if the voluntary dismissal makes defendant a prevailing party — which it

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does not — defendant’s litigation goals were not achieved. After the settlement, plaintiff

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requested a final judgment and is attempting to appeal. The settlement may have ended the

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litigation but many of the issues remain still unresolved on the merits because no trial ever

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occurred.

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Plaintiff asserts that even if defendant did prevail, the motion for attorney’s fees is timebarred. As there is no prevailing party, the issue of timeliness is moot.

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CONCLUSION

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For these reasons, defendant’s motion for attorney’s fees is DENIED. The Court asks

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counsel to consider privately whether this motion was worthwhile and whether, in settling the

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case in the first place, issues like this should have been included. The hearing scheduled for July

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28 is VACATED.

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IT IS SO ORDERED.
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Dated: July 20, 2011.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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