Howard v. Betz & Sons

Filed 9/8/06 Howard v. Betz & Sons CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellants are former hourly employees of respondent Betz & Sons, Inc. Appellants sued their employer and its president, respondent Joseph Betz, alleging that respondents violated California law by failing to pay them for all hours worked and denying them meal breaks. Several individual appellants also sued for retaliation and wrongful termination.

Appellants contend that the trial court erred in granting summary adjudication against appellant Timothy Howard on his individual wrongful termination cause of action, and in dismissing the representative cause of action under the unfair competition law against Betz & Sons, Inc. We agree, and reverse. We also reverse the order awarding attorney fees and costs, and remand for further proceedings on those issues and on the cause of action under the unfair competition law.

I. Facts And Procedural Background

Appellants formerly worked at the House of Prime Rib, a San Francisco restaurant that is owned by respondent Betz & Sons, Inc. (the Company), a corporation of which respondent Betz is the president. On July 17, 2003, appellants filed a complaint against the Company and Betz alleging that respondents had violated various provisions of the California Labor Code governing the payment of wages and provision of meal breaks to hourly workers (the wage and hour claims). The complaint also alleged a cause of action (the UCL claim) under Business and Professions Code sections 17200 et seq. (the UCL) on behalf of other restaurant employees.

On August 30, 2003, about six weeks after the complaint was filed, the Company terminated Howard's employment. On January 6, 2004, appellants filed an amended complaint adding two additional plaintiffs; two additional causes of action under the California Labor Code; and new causes of action for retaliation and wrongful termination as to Howard and the two new plaintiffs, based on allegations regarding respondents' treatment of them after the initial complaint was filed.

On April 30, 2004, respondents moved for summary adjudication as to all of appellants' causes of action against Betz, and several of appellants' causes of action against the Company, including Howard's cause of action for wrongful termination. On July 6, 2004, the case was assigned for all purposes to Judge Donald Mitchell of the San Francisco Superior Court. In an order filed on September 10, 2004, Judge Mitchell granted respondents' summary adjudication motion in all respects.[1] Appellants moved for certification of a plaintiff class with regard to the UCL claim, but Judge Mitchell denied the motion on October 21, 2004. Appellants appealed from that order.

While the class certification appeal was pending, respondents made an offer under Code of Civil Procedure section 998 to settle the individual appellants' wage and hour claims for a total of $67,500, reserving appellants' right to seek an award of attorney fees. Appellants accepted the offer, and withdrew the class certification appeal shortly thereafter.

As contemplated by the settlement, appellants sought an award of attorney fees in the amount of $431,681.25. Both the Company and Betz also sought to recover their costs. Appellants then moved to strike respondents' cost bills.

After a hearing on the issues regarding costs and attorney fees, Judge Mitchell filed an order awarding appellants attorney fees in the amount of $50,000, and awarding costs in the amount of $5,238 to the Company and $6,922 to Betz. Over appellants' objection, Judge Mitchell also entered an amended judgment providing that appellants' UCL claim was included within the scope of the judgment entered pursuant to the section 998 offer. This timely appeal ensued.

II. Discussion

A. Summary Adjudication of Howard's Wrongful Termination Claim

As already noted, appellants' first amended complaint included a cause of action alleging that the Company wrongfully terminated Howard's employment, in violation of public policy, in retaliation against him for exercising his rights under the California Labor Code by filing this lawsuit. Judge Mitchell granted summary adjudication against Howard on this cause of action, which we will refer to as his wrongful termination claim.[2] Appellants now challenge that order.

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