KIRBY
v. IMMOOS FIRE PROTECTION

















Filed 7/27/10









CERTIFIED
FOR PUBLICATION







IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Sacramento)

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>

ANTHONY KIRBY et al., Plaintiffs and Appellants, v. IMMOOS FIRE PROTECTION, INC., Defendant and Respondent.

C062306 (Super. Ct. No. 07AS00032)

APPEAL
from a judgment of the Superior Court
of Sacramento
County, Loren E. McMaster, Judge. Reversed with directions.



Law
Offices of Ellyn Moscowitz, Ellyn Moscowitz and Enrique Gallardo for Plaintiffs
and Appellants.



Rediger,
McHugh & Hubbert, Rediger, McHugh & Owensby, Robert L. Rediger, Laura
C. McHugh and Jimmie E. Johnson for Defendant and Respondent.







This appeal challenges an award of
attorney's fees to an employer who successfully defended against allegations of
labor law violations brought by two former employees. Appellants Anthony Kirby and Rick Leech, Jr.
(collectively Kirby) sued respondent Immoos Fire Protection, Inc. (Immoos) as
well as 750 Doe defendants for violating various labor laws as well as the unfair competition law (Bus. & Prof.
Code, § 17200 et seq.). Kirby dismissed
the case after the trial court denied class certification. The court subsequently awarded $49,846.05 in
attorney's fees to Immoos for its defense of the first, sixth and seventh
causes of action.

For reasons that follow, we shall
reverse the award of attorney's fees and remand to the trial court with
directions to award Immoos reasonable fees for its defense of the sixth cause
of action only.

PROCEDURAL
HISTORY

>Kirby's First Amended Complaint

We begin by setting forth the
allegations in the operative complaint.
In August 2007, Kirby filed an amended
complaint that alleged six causes of action against Immoos, and a seventh
that named 750 Doe defendants but omitted Immoos as a party.

The first cause of action alleged
that Immoos engaged in 12 enumerated instances of unlawful and unfair business practices in
violation of the unfair competition law as set forth in Business and
Professions Code section 17200 et seq.[1]

The second cause of action alleged
that Immoos failed to pay Kirby all wages at each pay period and at Kirby's
discharge, as required by Labor Code[2]
sections 201,[3]
203,[4]
and 204.[5]

The third cause of action alleged
that Immoos failed to pay overtime compensation, as required by sections 204.3,[6]
510,[7]
and Industrial Wage Commission Order No. 16-2001 (Order No. 16-2001).[8]

The fourth cause of action alleged
that Immoos secretly paid Kirby wages less than that required by statute,
regulation, and contract, a violation of section 223.[9]

The fifth cause of action alleged
that Immoos failed to provide accurate itemized wage statements to Kirby, as
required by section 226.[10]

The sixth cause of action alleged
that Immoos failed to provide Kirby with rest periods as required by Order No.
16-2001.[11]

The seventh cause of action alleged
that 750 Doe defendants violated section 2810[12]
by entering into contracts with Immoos while knowing that the contracts did not
provide sufficient funds to allow Immoos to comply with all applicable labor
and wage laws. Kirby later amended this
cause of action to identify defendants Shea Homes, Inc., Hilbert Homes, Inc.,
Meritage Homes of California, Inc., and D.R. Horton, Inc.

Kirby subsequently settled with
Shea Homes, Inc., Hilbert Homes, Inc., Meritage Homes of California, Inc., and
D.R. Horton, Inc., in agreements not made part of the court record.

In November 2008, Kirby moved for
certification of class action. The
motion was denied in January 2009.

In February 2009, Kirby dismissed
with prejudice his complaint as to all causes of action and all parties.

>Award of Attorney's Fees to Immoos

In April 2009, Immoos moved to
recover attorney's fees from Kirby pursuant to section 218.5.[13] Kirby opposed the motion arguing, in part, that
the unilateral fee-shifting provision in favor of plaintiffs provided by
section 1194[14]
barred an award of fees to Immoos.

In June 2009, the trial court awarded Immoos attorney's
fees â€