Amanda Quiles v. Arthur J. Parent, Jr.

In this latest chapter in what originated as a wage and hour class action,

defendant Arthur J. Parent, Jr. (Parent) appeals from the amended judgment entered in

favor of plaintiff Amanda Quiles on her individual claim for wrongful employment

termination in violation of the federal Fair Labor Standards Act of 1938 (FLSA; 29

U.S.C. § 201 et seq.). (All further statutory references are to title 29 of the United States

Code unless otherwise specified.) In addition to the damages awarded by the jury, the

amended judgment awarded Quiles $689,310.04 in attorney fees and $50,591.69 in costs

of litigation.

Parent challenges the attorney fees and costs awards of the amended

judgment only, arguing the trial court erred by awarding costs that were not statutorily

authorized and by awarding attorney fees and costs that were jointly incurred by Quiles

with her coplaintiffs for whom litigation remains pending. He also argues the trial court

otherwise abused its discretion by awarding attorney fees and costs that were unrelated

and unnecessary to Quiles’s successful FLSA claim.

We affirm. We hold, in this case of first impression, that federal law

applies to the determination of what type of costs are recoverable by a prevailing party in

an FLSA action filed in state court. Section 216(b) provides that any employer who

wrongfully terminates the employment of an employee in retaliation for filing an FLSA

action shall be liable for legal or equitable relief and shall pay the employee’s reasonable

attorney fees and costs of the action. Federal courts have construed section 216(b) to

authorize awarding a prevailing employee a broad measure of costs, which include

copying, postage, and mediation expenses.

We reject Parent’s argument that the trial court erred by awarding Quiles

mediation costs because the parties had contractually agreed to mediate the matter and

divide the costs between them. The record shows that the parties agreed to each pay the

mediation services provider half the costs of mediation, but Parent did not go through

3

with any agreement to mediate, having failed to personally appear at the mediation or

otherwise be available to participate in the mediation. Parent forfeited his argument that

the trial court awarded expert witness fees that were unauthorized by the FLSA. He

failed to raise that argument in the trial court which resulted in the issue not having been

fully briefed and in depriving the trial court the opportunity to make that determination in

the first instance.

We also reject Parent’s claim that the trial court erred by awarding Quiles

costs she jointly incurred with other plaintiffs who continue to litigate their claims. The

trial court painstakingly reviewed the lengthy record regarding Quiles’s requests for

attorney fees and costs and awarded her what the court determined she reasonably

incurred on her own behalf and in relation to her successful claim. Contrary to Parent’s

argument, the trial court did not err by awarding Quiles attorney fees and costs she

incurred in connection with the trial as to the joint employer issue. Having proven

Parent’s status as her joint employer enabled Quiles to avail herself of the opportunity to

pursue damages, penalties, attorney fees and costs against Parent for violating the FLSA

by wrongfully terminating Quiles’s employment.

BACKGROUND

In November 2010, Quiles, along with other individuals, filed a proposed

class action against, inter alia, Koji’s Japan Incorporated (Koji’s) and Parent (collectively

defendants), asserting several state and federal wage and hour claims and violation of

California’s unfair competition law. Plaintiffs amended their complaint several times to

add, among other things, Quiles’s individual wrongful employment termination claim in

violation of the FLSA.

In early 2015, the trial court presided over a bench trial to determine joint

employer and alter ego theories of liability. At the beginning of the trial, defendants

declared bankruptcy. Parent was fined over $50,000 for making a frivolous bankruptcy

4

filing. At the conclusion of the bench trial, the trial court found Parent qualified as a joint

employer under the FLSA.1



A year later, the trial court conducted a jury trial of Quiles’s individual

FLSA claim against defendants for wrongful employment termination. According to the

parties’ joint statement of the case prepared for this phase of trial, “Quiles claimed that

she was wrongfully terminated from her employment when Koji’s became aware that she

was named as the representative claimant in this class action.” Quiles sought damages

for past loss of earnings and emotional distress. Defendants argued Quiles’s employment

was terminated for “legitimate reasons, based on her disciplinary record alone.”

The jury found in favor of Quiles on her wrongful employment termination

claim, finding on the special verdict form: (1) Quiles’s lawsuit was a substantial

motivating reason for her discharge; (2) defendants’ conduct was a substantial factor in

causing harm to Quiles; and (3) defendants failed to prove that they would have made the

same decision based upon a legitimate, nonretaliatory reason. The jury awarded Quiles

economic damages for loss of past earnings in the amount of $3,000; non-economic

damages, including emotional distress damages, in the amount of $27,500; and punitive

damages in the amount of $350,000.

Quiles filed a request to withdraw as a class representative and requested

dismissal of her individual claims other than her wrongful employment termination claim

that had been tried. The trial court granted Quiles’s request and Quiles disclaimed any

right to future recovery as a class member.

In April 2016, judgment was entered in Quiles’s favor and against

defendants for the damages awarded by the jury, plus $3,000 in liquidated damages



1

Quiles, along with other plaintiffs, challenged certain of the court’s findings at the

bench trial through a notice of appeal which we construed as a petition for writ of

mandate. (Turman v. Superior Court (2017) 17 Cal.App.5th 969, 979.) During the

pendency of those proceedings, Quiles was dismissed as a party to them. (Id. at p. 975,

fn. 3.) Our decision in Turman is not relevant to the issues presented in this case.

5

awarded by the trial court (§ 216(b)), for a total damages award of $383,500.

2

Blank

lines were included in the judgment for attorney fees and costs of litigation awards.

Defendants filed a motion for a new trial solely challenging the award of

punitive damages. The trial court conditionally granted the new trial motion, subject to

Quiles consenting to a reduction of the punitive damages award to $175,000. (Code Civ.

Proc., § 662.5, subd. (a)(2).) Quiles accepted the proposed reduction, bringing the total

damages award down to $208,500.

In May 2016, Quiles filed a memorandum of costs and a supplemental

memorandum of additional costs, which, together, sought a total costs award of

$70,587.81. In June 2016, Quiles filed a motion seeking an attorney fees award in the

total amount of $1,057,295.59 for the prosecution of her individual FLSA claim. The

trial court summarized Quiles’s attorney fees request as comprised of the following:

(1) for time spent up to May 22, 2013, $21,384.50 (a 90 percent discount off the total of

$213,845 for 595.2 hours); (2) for time spent after May 22, 2013, $442,256.25 (a

50 percent discount off the total of $884,512.50 for 2,245.5 hours); (3) $419,217.5 for

1,009.4 hours for time spent solely on the wrongful employment termination action;

(4) $25,600 for 51.2 hours of time spent by attorney William Crosby; (5) $170,395 for

270.6 hours of time spent by attorney Larry Organ; (6) less $2,600 (a reduction of 5.2

hours of Crosby’s time); (7) less $54,192.67 (a five percent discount off the subtotal of

items (1) through (6) above); and (8) $30,105 for 76.1 hours for time spent to prepare the

replies to “these motions” (presumably referring to Quiles’s motion for attorney fees and

Parent’s motion to tax costs). Defendants filed a motion to strike or tax costs and an

opposition to the motion for attorney fees.

Following a hearing on attorney fees and costs, the trial court awarded

Quiles $689,310.04 in attorney fees by way of a detailed written ruling. In a separate



2

Parent does not challenge the jury’s verdict finding him liable for wrongful

employment termination in violation of FLSA or the award of damages against him.

6

order, the court awarded $50,591.69 in costs to Quiles. An amended judgment was

entered which reflected the updated damage award (total of $208,500), the attorney fee

award ($689,310.04), and the costs award ($50,591.69).

Parent alone filed a notice of appeal.3



DISCUSSION

I.

THE TRIAL COURT CORRECTLY DETERMINED THAT FEDERAL LAW APPLIED TO

DETERMINE WHAT TYPES OF COSTS QUILES MAY RECOVER FOR PREVAILING ON HER

FLSA CLAIM.

The FLSA provides for an award of prevailing party attorney fees and costs

to an employee who proves retaliation under its provisions: “Any employer who violates

the provisions of section 15(a)(3) of this Act [29 USCS § 215(a)(3)]

[4]

shall be liable for

such legal or equitable relief as may be appropriate to effectuate the purposes of section

15(a)(3) . . . . An action to recover the liability prescribed in the preceding sentences may

be maintained against any employer (including a public agency) in any Federal or State

court of competent jurisdiction by any one or more employees for and in behalf of

himself or themselves and other employees similarly situated. . . . The court in such

action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a



3

During the pendency of this appeal, Parent filed a petition for a writ of supersedeas

staying enforcement of the judgment as to the amount that remained owed on the

judgment (attorney fees and costs only). (Quiles v. Parent (2017) 10 Cal.App.5th 130,

148 (Quiles I).) We granted the petition without prejudice to the trial court exercising its

discretion to impose a bond requirement on Parent. (Ibid.) Thereafter, the trial court so

exercised its discretion and has required Parent to post a bond under Code of Civil

Procedure section 917.9. Parent has filed an appeal from that order.

4

Quiles’s wrongful employment termination claim was based on a violation of section

215(a)(3), which provides it is unlawful for any person “to discharge or in any other

manner discriminate against any employee because such employee has filed any

complaint or instituted or caused to be instituted any proceeding under or related to this

Act.”

7

reasonable attorney’s fee to be paid by the defendant, and costs of the action.”

(§ 216(b).)

As we stated in Quiles I, supra, 10 Cal.App.5th at pages 145-146, “State

procedural rules apply to federal causes of action in state court, unless the federal right is

defeated thereby. (Felder v. Casey (1988) 487 U.S. 131, 138.) Generally speaking, the

use of California postjudgment procedures to recover attorney fees and costs authorized

by a federal statute does not appear to be inconsistent with federal law. (See Gill v.

Hughes (1991) 227 Cal.App.3d 1299, 1310 [assessing award of attorney fees under 42

U.S.C. § 1988 in state court postjudgment proceedings].)”

5



The parties disagree as to whether the trial court correctly concluded that

federal law applied to determine not only Quiles’s entitlement to costs, but also the types

of costs she might recover. Parent argues the issue of what type of costs are recoverable

on an FLSA claim is a determination of a procedural nature to which state law would

apply. Quiles argues that determination is of a substantive nature to which federal law

applies.

Neither the parties nor the trial court cite legal authority addressing the

applicability of federal law to determine the recoverability of particular types of costs in

an FLSA case litigated in state court. In our research, we have found none. There is,

however, a line of cases addressing the same question in cases brought under the Federal

Employers Liability Act (45 U.S.C. § 51 et seq.) (FELA) filed in California state courts,

in which courts have held that the question of the availability of certain types of costs is a

matter of substantive law requiring the application of federal law.



5 We further stated: “[P]ostjudgment proceedings authorized by the California Rules of

Court and [Code of Civil Procedure] section 1021 et seq. provide a mechanism to allow

Quiles to recover the attorney fees and costs authorized by 29 United States Code section

216(b). The trial court was rightly operating under California state procedural rules in

entertaining Quiles’s request for attorney fees and costs.” (Quiles I, supra, 10

Cal.App.5th at p. 146.)

8

In Kinsey v. Union Pacific Railroad Co. (2009) 178 Cal.App.4th 201, 203

(Kinsey), the jury returned a verdict against the plaintiff in the FELA action he filed in

state court. Before trial, the plaintiff had rejected the defendant’s offer to compromise

under Code of Civil Procedure section 998. (Kinsey, supra, 178 Cal.App.4th at p. 203.)

After the judgment was entered, the trial court awarded defendant its costs, including

expert witness fees; the plaintiff appealed. (Ibid.) The appellate court reversed the expert

witness fees portion of the costs award, holding “the availability of expert witness fees in

a FELA action filed in state court is controlled by federal law. . . . [W]e conclude federal

law does not authorize an award of expert witness fees to a defendant who has made a

rejected offer of settlement and then obtains a defense verdict.” (Id. at p. 204.)

The appellate court’s reasoning included the following: “‘FELA is a broad

remedial statute based on fault . . . and is intended by Congress to protect railroad

employees by doing away with certain common law tort defenses. [Citations.]’

[Citation.] . . . [¶] A FELA action may be brought in state or federal court. [Citations.]

When a FELA action is instituted in state court, state law governs the resolution of

procedural issues unless application of state law results in the denial of a right granted by

Congress. Federal law governs the resolution of substantive issues. [Citations.] [¶]

Applying federal law to the resolution of substantive issues in FELA cases pending in

state courts furthers the statute’s goal of ‘“creat[ing] uniformity throughout the Union”

with respect to railroads’ financial responsibility for injuries to their employees.’”

(Kinsey, supra, 178 Cal.App.4th at pp. 204-205.)

The appellate court continued: “In Miller [v. Union Pacific Railroad Co.

(2007)] 147 Cal.App.4th 451, we held that the availability of expert witness fees in a

FELA action filed in state court is a ‘substantive’ issue controlled by federal law. [¶] In

so doing, we noted that the United States Supreme Court has characterized a litigant’s

ability to recover prejudgment interest in FELA cases as a ‘substantive’ issue governed

by federal law, because it ‘“is normally designed to make the plaintiff whole and is part

9

of the actual damages sought to be recovered,”’ ‘“may constitute a significant portion of

an FELA plaintiff’s total recovery,”’ and may also ‘“constitute[] too substantial a part of

a defendant’s potential liability under the FELA”’ to be considered merely procedural.

[Citations.] [¶] Following the Supreme Court’s holding that federal law controls the

availability of prejudgment interest in a state-filed FELA case, our own state high court

in Lund [v. San Joaquin Valley Railroad (2003)] 31 Cal.4th 1 likewise concluded that

prejudgment interest is not available in a California FELA case, notwithstanding contrary

state law. It observed that the goal of achieving national uniformity in personal injury

actions by railroad employees against their employers ‘would be frustrated if FELA

plaintiffs could recover prejudgment interest simply by filing their actions in state court

rather than in federal court, where such recovery is precluded. Even if prejudgment

interest could be considered procedural rather than substantive, “state procedure must

give way if it impedes the uniform application of the federal statute essential to effectuate

its purpose, even though the procedure would apply to similar actions arising under state

law.” [Citation.]’ [Citation.] [¶] In Miller [v. Union Pacific Railroad Co.], supra, 147

Cal.App.4th 451, this court applied the same reasoning to the availability of expert

witness fees as costs in a FELA case brought in state court.” (Kinsey, supra, 178

Cal.App.4th at p. 205.)

The FLSA is sufficiently analogous to the FELA to support the principle

that federal law applies in determining the recoverability of certain types of costs in an

FLSA action brought in state court. Like FELA claims, FLSA claims may be filed in

either state or federal court. (§ 216(b).) The FLSA too has “‘broad remedial purposes.’”

(Boucher v. Shaw (9th Cir. 2009) 572 F.3d 1087, 1090.) As Kinsey explained in the

context of FELA cases, cost awards in FLSA cases can comprise a large amount of a

litigant’s overall recovery; the amount of attorney fees and litigation costs awarded

Quiles was double the amount of her damages award. To preclude a prevailing plaintiff

from recovering the same costs incurred in litigating an FLSA claim in state court that he

10

or she would have recovered in federal court would impede the uniform application of the

FLSA without any indication from Congress it intended such a disparity.

We therefore conclude federal law must be applied in determining the

recoverability of certain types of costs in an FLSA action.6



II.

THE TRIAL COURT CORRECTLY AWARDED QUILES COSTS FOR COPYING, POSTAGE, AND

MEDIATION EXPENSES.

Section 216(b) does not describe, much less identify, the types of costs that

may be awarded in favor of an employee who successfully proves a wrongful

employment termination claim in violation of the FLSA. Federal case law has interpreted

section 216(b) as authorizing a broad measure of costs, not limited by statutory lists of

generally allowable costs in such cases, including “reasonable out-of-pocket expenses”



6

In his appellate opening brief, Parent argues that in Kinsey, supra, 178 Cal.App.4th at

page 208, the appellate court “also remanded with instructions to allow for costs of

ordinary witness fees pursuant to Code of Civil Procedure § 1033.5[.] [Id. at 208.] Thus

the court in Kinsey specifically recognized that determining costs for a federal claim was

governed by the state procedural statute ([Code of Civil Procedure s]ection 1033.54) for

determining allowable costs, while determining substantive rights related to settlement of

federal claims was governed by federal statutes.” We believe Parent reads too much into

the cited portion of Kinsey, which states: “[D]efendant asks on appeal that we remand

the matter to the trial court, so that it may seek to recover as costs ‘ordinary witness fees

for its experts who testified at trial.’ (See Code Civ. Proc., § 1033.5; Evid. Code, § 733;

Gov. Code, § 68093.) Plaintiff does not dispute that defendant is entitled to seek ordinary

witness fees as costs for those of its experts who testified at trial. We remand the matter

to the trial court for that limited purpose.” (Kinsey, supra, 178 Cal.App.4th at p. 208.)

The appellate court did not determine or analyze the extent to which ordinary witness

fees would be recoverable by the defendant, or whether there was any difference between

state and federal law on that issue, but merely remanded the matter to the trial court to

make that determination in the first instance. Construing this passage in Kinsey as

requiring a holding that state law applies to the determination of what types of costs are

available to a successful FLSA litigant would directly contradict the court’s analysis and

holding in the case—that federal law applies to determine whether expert witness fees

might be recoverable by a prevailing party in a FELA action.

11

beyond those normally allowed under the federal rules. (Smith v. Diffee Ford-LincolnMercury,

Inc. (10th Cir. 2002) 298 F.3d 955, 968-969.)

In his opening brief, Parent argues the trial court erred by awarding Quiles

costs for copying, postage, and mediation expenses because none of those costs are

available under Code of Civil Procedure section 1033.5. As discussed ante, federal law

dictates what costs Quiles may recover. Parent does not analyze his challenges to the

trial court’s costs award under federal law. We nevertheless analyze each of Parent’s

challenges by applying federal law and conclude none has merit.

Federal district courts have routinely allowed the reimbursement to parties

who prevailed on FLSA claims of their photocopying, postage, and mediation expenses.

(See Lopez v. STS Consulting Servs. LLC (E.D.Tex. Mar. 12, 2018, No. 6:16-CV-00246-

RWS) 2018 U.S.Dist. Lexis 39736 [expenses for copying, mediation, and postage

recoverable in FLSA action]; Mumford v. Eclectic Inst., Inc. (D.Or. Apr. 29, 2016, No.

3:15-cv-00375-AC) 2016 U.S.Dist. Lexis 57940 [awarding prevailing party in FLSA

claim cost of copies and postage]; Rutti v. Lojack Corp. (C.D.Cal. July 31, 2012, No.

SACV 06-350) 2012 U.S.Dist. Lexis 107677 [“Reasonable litigation expenses are

ordinarily included in an award of attorneys’ fees pursuant to the FLSA. [Citation.]

Expenses such as reimbursement for . . . photocopying, . . . postage, courier service,

mediation, . . . are typically recoverable”]; Rouse v. Target Corp. (S.D. Tex. 2016) 181

F.Supp.3d 379, 392 [in addition to taxable costs listed under 28 U.S.C. § 1920, “costs

for . . . photocopying, . . . postage, courier service, mediation, . . . are also recoverable

under the FLSA as part of an attorney’s fee award”]; but see Moore v. Deer Valley

Trucking, Inc. (D.Idaho Sept. 12, 2016, No. 4:13-cv-00046) 2016 U.S.Dist. Lexis 124654

[denying request for postage and photocopy fees in FLSA case as “not statutorily

authorized”].)

Well-established federal authority therefore supports the trial court’s award

of copying, postage, and mediation costs to Quiles.

12

As to the award of mediation fees, Parent further argues that such costs

should not have been awarded to Quiles because the parties had contractually agreed to

mediate and to split the mediator’s fees in doing so. He cites Carr Business Enterprises,

Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 25 in which a prevailing party was

unable to recover mediation costs based on the parties’ reference agreement submitting a

dispute to binding resolution pursuant to Code of Civil Procedure section 638. Carr

Business Enterprises, Inc. has no application here because our record shows that,

notwithstanding the parties’ agreement to mediate, Parent refused to appear personally or

otherwise participate in the mediation.

Specifically, the record contains a copy of the relevant JAMS Fee

Agreement & Cancelation Policy, setting forth the details of the mediation and each

party’s agreement to pay JAMS half the mediation fee 14 days in advance of the

scheduled mediation. Quiles’s attorney, Bryan J. Schwartz, filed a declaration in support

of Quiles’s motion for attorney fees, in which he explained the circumstances of the

parties’ mediation as follows: “My firm attempted in good faith t[o] settle the wrongful

termination claims with Defendants shortly after adding the wrongful termination claims

to the complaint. In February 2011, I flew down to Orange County to meet with

Defendants’ counsel Steve Madoni about discussing settlement of the case, at his

invitation, and to attend the initial case management conference in person, though I

would have attended by CourtCall. Mr. Madoni did not show up at our scheduled

meeting, nor did he appear for the case management conference, resulting in court

sanctions. [Citation.] Later, the Parties each paid half of the fees for a mediation as to

Plaintiff’s wrongful termination claims with the Honorable Luis A. Cardenas (Ret.),

which was set for November 25, 2015 in Orange County. The mediation was confirmed

by Defendants through Mr. Madoni on October 28, 2015, after the parties began

discussing a mediation some time earlier. However, after Ms. Quiles and I traveled to

Orange County the Wednesday prior to Thanksgiving, Defendant Parent did not even

13

show up to the event. Of particular significance, and without disclosing confidential

settlement demands and offers, after Defendants’ acceptable initial offer at the mediation,

Judge Cardenas informed that Defendants’ counsel had no further room to negotiate, that

Defendant Parent was unavailable (or unwilling) to speak with Judge Cardenas even via

telephone, and that Defendants’ counsel would be leaving the mediation by 10:30 a.m.

Needless to say, no settlement was reached. Attached hereto as Exhibit C is a true and

correct copy of the email response from Judge Cardenas when I emailed him to request a

partial refund from JAMS based upon the extraordinarily fruitless event.”

Exhibit C to Schwartz’s declaration is an e-mail from Cardenas to Schwartz

which states in part: “I will talk to the office manager about the JAMS fees . . . but after

twenty years of working at JAMS . . . it probably will be the corporate opinion that the

lack of progress was due to the lack of participation of a party and not to the forum. My

suggestion is you seek reimbursement for your share of the mediation expenses as a

‘cost’ when you submit your request for fees and costs after the trial is concluded. [¶]

Your professionalism and courtesy under very difficult circumstances are greatly

appreciated. It would be a privilege to work with you in the future . . . hopefully with

better results.”

Under these circumstances, we cannot conclude the trial court erred by

awarding Quiles her mediation costs pursuant to the broad measure of costs available

under section 216(b).

III.

PARENT HAS FORFEITED HIS ARGUMENT THE EXPERT FEES AWARD WAS NOT

STATUTORILY AUTHORIZED.

In his opening brief, Parent argues “the trial court awarded [Quiles] $6,000

in expert fees over objection of [Parent]” on the ground such costs are not recoverable

under the FLSA. He cites only page 13040 of the clerk’s transcript, which is the portion

of Quiles’s memorandum of costs detailing the expert witness fees she sought to recover.

14

Quiles argues in her respondent’s brief that Parent has forfeited his

argument that such costs are not recoverable under the FLSA because he did not raise

that issue in the trial court. In his reply brief, citing page 13218 of the clerk’s transcript,

Parent argues he “did object specifically to the award of expert witness fees.” His

reference to expert witness fees on page 13218 of the clerk’s transcript was in relation to

his argument that those fees, among many others (court fees, postage, transcripts, etc.),

were jointly incurred in the course of the bench trial of the alter ego and joint employer

issues and that some, if not all, of those costs were not reasonably incurred in connection

with Quiles’s successful FLSA wrongful employment termination claim.7

Parent does

not cite where in the record he objected in the trial court to an award of expert witness

fees as not statutorily authorized.

“Failure to raise specific challenges in the trial court forfeits the claim on

appeal. ‘“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims

made for the first time on appeal which could have been but were not presented to the

trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated

in the trial court. Generally, issues raised for the first time on appeal which were not

litigated in the trial court are waived. [Citations.]’” [Citation.] “Appellate courts are

loath to reverse a judgment on grounds that the opposing party did not have an

opportunity to argue and the trial court did not have an opportunity to consider.

[Citation.] In our adversarial system, each party has the obligation to raise any issue or

infirmity that might subject the ensuing judgment to attack. . . .”’” (Premier Medical

Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th

550, 564.)



7

We address and reject Parent’s arguments that the trial court improperly awarded

Quiles attorney fees and costs incurred during the trial on the joint employer issue in

discussion parts IV. and V. post.

15

We view the record as a whole, and we consider the extensive record

prepared on the issues raised regarding Quiles’s attorney fees and costs, including the

trial court’s lengthy rulings on these issues. We also note that the parties did not fully

brief the expert witness fee issue raised by Parent on appeal. Based on the facts, we must

conclude that Parent has forfeited his argument expert witness fees were not statutorily

authorized by failing to raise it below.

IV.

THE RECORD DOES NOT SHOW THE TRIAL COURT AWARDED QUILES ATTORNEY FEES OR

COSTS OTHER THAN THOSE INCURRED BY HER IN RELATION TO THE SUCCESSFUL

LITIGATION OF HER WRONGFUL EMPLOYMENT TERMINATION CLAIM.

In his appellate opening brief, Parent argues the trial court erred by

awarding attorney fees and costs in the amended judgment to Quiles “that were not

incurred solely for the benefit of [Quiles], but rather, were incurred for the joint benefit of

all the named plaintiffs for a matter still pending.” Citing Fennessy v. DeLeuw-Cather

Corp. (1990) 218 Cal.App.3d 1192 (Fennessy), Parent argues that although Quiles

dismissed all of her claims other than her successful retaliation claim, she was only one

of eight plaintiffs and “the remaining seven jointly represented plaintiffs’ case is still

pending.” Therefore, Parent’s argument continues, “although the lower court

significantly reduced the fee request due to excessive and improper billing request, based

on Fennessy . . . the court should not have awarded any of these jointly incurred costs or

fees.” In his appellate reply brief, Parent reiterated he “does not question the amount of

jointly incurred costs and fees awarded, but contends instead that under Fennessy . . . the

court does not have the discretion to award any jointly incurred costs or fees while the

matter is still pending.”

California law provides: “[A]ll costs awarded to a prevailing party must be

incurred by that party, must be ‘reasonably necessary to the conduct of the litigation

rather than merely convenient or beneficial to its preparation,’ and must be reasonable in

amount. ([Code Civ. Proc.,] § 1033.5, subd. (c)(1)-(3).) These limitations apply whether

16

the costs are awarded as a matter of right or in the court’s discretion. . . . [¶] ‘“When a

prevailing party has incurred costs jointly with one or more other parties who are not

prevailing parties for purposes of an award of costs, the judge must apportion the costs

between the parties [based on the reason the costs were incurred and whether they were

reasonably necessary to the conduct of the litigation by the jointly represented party who

prevailed].”’” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 743-744 (Charton), final

brackets in original.)

Although not cited or analyzed by Parent, general federal standards for

determining prevailing party attorney fees and cost awards similarly require courts to

exercise discretion and consider what attorney fees and costs were reasonably incurred in

light of the prevailing party’s degree of success in the litigation. In the trial court’s order

awarding attorney fees, the court correctly cited Hensley v. Eckerhart (1983) 461 U.S.

424, 433 (Hensley) in summarizing the “general law” applicable to the determination of

the attorney fees award.

In Hensley, supra, 461 U.S. 424, the United States Supreme Court

explained that “[t]he standards set forth in [its] opinion are generally applicable in all

cases in which Congress has authorized an award of fees to a ‘prevailing party.’” (Id. at

p. 433, fn. 7.) It therefore logically follows that the standards articulated in Hensley

apply to FLSA actions. The United States Supreme Court in Hensley, supra, 461 U.S.

424 summarized these standards as including the following: “A typical formulation is

that ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they

succeed on any significant issue in litigation which achieves some of the benefit the

parties sought in bringing suit.’ [Citation.] This is a generous formulation that brings the

plaintiff only across the statutory threshold. It remains for the district court to determine

what fee is ‘reasonable.’ [¶] . . . [¶] The district court also should exclude from this

initial fee calculation hours that were not ‘reasonably expended.’ [Citation.] Cases may

be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the

17

prevailing party should make a good-faith effort to exclude from a fee request hours that

are excessive, redundant, or otherwise unnecessary.” (Id. at pp. 433-434, fn. omitted.)

The Supreme Court explained that “[t]here is no precise rule or formula” for calculating

an award that reflects the degree of success obtained by a litigant and the trial court

“necessarily has discretion in making this equitable judgment.” (Id. at pp. 436-437.)

Parent argues the trial court erred by including in its allocation of the

amount of attorney fees and costs awarded to Quiles fees and costs that had been jointly

incurred by Quiles and other plaintiffs in the litigation leading up to the trial of her

wrongful employment termination claim because the litigation remains pending as to

those other plaintiffs. Even assuming the legal standards applied in Fennessy, supra, 218

Cal.App.3d 1192 govern here, they do not support Parent’s argument.

In Fennessy, supra, 218 Cal.App.3d at page 1194, six jointly represented

defendants moved for summary judgment, but only one of them prevailed and obtained a

judgment in his favor. That single prevailing defendant then sought to recover all costs

incurred by the six jointly represented defendants. (Ibid.) The trial court denied the

plaintiff’s motion to tax costs. (Ibid.) The appellate court reversed, explaining the

prevailing defendant may recover only those costs actually incurred by that defendant or

on his behalf in defending the case, holding: “[W]here a prevailing party incurs costs

jointly with one or more parties who remain in the litigation, during the pendency of the

litigation that party may recover only costs actually incurred by a party or in its behalf in

prosecuting or defending a case.” (Id. at p. 1196.) The appellate court concluded the trial

court erred in awarding the prevailing defendant “the total costs claimed without

ascertaining whether he in fact incurred such costs” and remanded to provide the

prevailing defendant the opportunity “to prove those costs actually incurred by him in

defending against this litigation.” (Id. at p. 1197.)

In Charton, supra, 247 Cal.App.4th at pages 735 to 736, unlike in Fennessy

the litigation had concluded as to all parties. One defendant had prevailed, two

18

defendants had not prevailed in defending claims against them, and claims against a

fourth defendant, inexplicably, were never tried. The trial court awarded the single

prevailing party defendant 25 percent of “the total amount of recoverable costs” in the

case. (Id. at p. 737.) The plaintiffs challenged the cost award, arguing that the prevailing

defendant did not incur some or all of the costs for her own benefit and they were not

reasonably necessary to the conduct of her defense. A panel of this court “reversed as to

the trial court’s across-the-board reduction in the amount of costs based on the number of

jointly represented defendants” and remanded for the trial court to determine which

specific costs the prevailing party incurred and whether they were reasonably necessary

to her defense. (Id. at pp. 743, 745.)

The Charton court explained that Fennessy was factually distinguishable

because in Fennessy, the action remained pending against a majority of the jointly

represented defendants while in Charton, the litigation had concluded. The court noted:

“This distinction, however, affects only how the court applies the underlying principle to

particular cost items; it does not change the underlying principle. A prevailing party who

is represented by the same counsel as a nonprevailing party may only recover those costs

the prevailing party incurred and were reasonably necessary to the prevailing party’s

conduct of the litigation, not the other jointly represented parties’ conduct of the

litigation. [Citations.] Whether to award costs that were incurred by both the prevailing

party and the nonprevailing party, and were reasonably necessary to the conduct of the

litigation for both the prevailing and nonprevailing party, is left to the trial court’s sound

discretion based on the totality of the circumstances. [Citation.] [¶] In allocating costs

between jointly represented parties, however, the trial court may not make an across-theboard

reduction based on the number of jointly represented parties because such an

allocation fails to consider the necessity or reasonableness of the costs as required by

[Code of Civil Procedure] section 1033.5, subdivision (c). [Citation.] Instead, when

allocating costs between jointly represented parties, the court must examine the reason

19

each cost was incurred, whether the cost was reasonably necessary to the conduct of the

litigation on behalf of the prevailing party, and the reasonableness of the cost.” (Charton,

supra, 247 Cal.App.4th at pp. 744-745, italics added.)

The Charton court continued: “Here, the trial court made an across-theboard

allocation based on the number of jointly represented defendants, awarding Harkey

25 percent of all costs defendants incurred because she was one of four jointly

represented defendants. The court erred because it failed to apply the proper legal

standards in making the allocation. [Citation.] We therefore reverse and remand for the

trial court to allocate costs based on the foregoing principles.” (Charton, supra, 247

Cal.App.4th at p. 745.)

Neither Fennessy nor Charton hold that the trial court must wait to allocate

costs between jointly represented parties until litigation has ended as to all of them.

Instead, the trial court may determine the cost award for a prevailing party by examining

the reason each cost was incurred, whether the cost was reasonably necessary to incur in

the litigation, and the reasonableness of the amount of the cost incurred. Our record

shows the trial court understood the applicable legal standards.

The record shows the trial court was aware of the correct legal standard for

allocating costs among multiple defendants in determining attorney fees and costs awards

for Quiles, and nothing in the record suggests that correct standard was not applied by the

court. Parent’s argument that such awards must be reversed on the ground they included

jointly incurred costs among some parties with litigation still pending is therefore without

merit.

V.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING ATTORNEY FEES AND

COSTS PARENT CONTENDS WERE UNRELATED AND UNNECESSARY TO QUILES’S FLSA

CLAIM.

Parent argues the trial court abused its discretion by awarding Quiles

attorney fees and costs related to the bench trial on the alter ego and joint employer issues

20

and by awarding her certified mail costs, none of which, he argues, were reasonable or

necessary to the successful litigation of Quiles’s wrongful employment termination

claim. We conclude the court did not abuse its discretion.

A.

Attorney Fees and Costs Incurred in Proving Parent Was a Joint Employer.

Parent argues that in Citicorp Indus. Credit, Inc. v. Brock (1987) 483 U.S.

27, the United States Supreme Court interpreted the phrase “any person” found in an

FLSA provision prohibiting introducing goods into interstate commerce that were

procured in violation of certain wage provisions, to include non-employers as well as

employers. As section 215(a)(3) also establishes liability against “any person,” and not

just an employer for retaliatory employment terminations, Parent argues the bench trial at

which he was proved to be a joint employer was unnecessary and unrelated to holding

him liable for Quiles’s wrongful employment termination claim. Parent argues: “In

other words, [Parent] could have been held liable for wrongful termination of [Quiles]

whether he had been a joint employer or not. The finding that he was a joint employer

was unnecessary and unrelated to [Quiles]’s success on this claim.” Therefore, Parent

contends, costs and fees awarded in connection with the joint employer trial should not

have been awarded.

Whether Parent might have been found liable for wrongful employment

termination in violation of the FLSA as a person and not as a joint employer is not the

relevant question. The relevant question is whether the determination that he was

Quiles’s joint employer was necessary and related to her successful FLSA claim—it was.

Parent’s argument suggests that a successful litigant may be awarded only those fees and

costs that are related to the absolute minimum effort that might result in prevailing at

trial. The legal standards do not direct trial courts to so approach requests for attorney

fees and costs, but to determine what costs and fees were reasonably and necessarily

related to the successful claim.

21

While Parent is correct that section 215(a)(3) prohibits “any person” from

retaliating against an employee for filing an FLSA action, it is section 216(b) that creates

the private right of action against any “employer” who violates section 215(a)(3) and sets

forth the penalties for any such violation. By proving Parent was a joint employer with

regard to Quiles, she was able to more directly (and efficiently) prove Parent’s direct

liability to her under section 216(b) once she proved her employment had been

terminated because she filed an FLSA action.

B.

Certified Mail Costs

Without citing any legal authority, Parent argues there was no reasonable

explanation for the trial court awarding Quiles her certified mail costs and thus abused its

discretion in doing so. As discussed ante, federal courts have awarded postage and

courier costs in FLSA matters. In her respondent’s brief, Quiles states she “started

sending correspondence via certified mail so that she would have proof of Parent’s

counsel’s receipt of such correspondence, after Parent’s counsel insisted he had not

received correspondence that was sent to him on multiple occasions.”

In his reply brief, Parent does not respond to Quiles’s proffered

explanation. Instead, he argues the trial court never made an express finding regarding

the reasonable necessity of Quiles sending correspondence via certified mail. For the

first time on appeal, and without any citation to the record, Parent then argues in his reply

brief, “Further, the majority of the certified mail costs did not even relate to the

Respondent’s retaliation claim.”8

Parent has failed to demonstrate any abuse of

discretion.



8

In his reply brief, Parent states that a statutory notice under the Labor Code Private

Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), which related exclusively to

dismissed state claims, was properly sent by certified mail. Parent does not state in his

appellate briefing whether the cost of that certified notice was included in the court’s

award of costs.

The judgment is affirmed. Respondent shall recover costs on appeal.