Filed 4/30/20; Certified for Publication 5/21/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION EIGHT

RAQUEL BETANCOURT,                                   B293625

    Plaintiff and Respondent,                       (Los Angeles County
                                                    Super. Ct. No. BC629916)
        v.

OS RESTAURANT SERVICES,
LLC, et al.,

    Defendants and Appellants.


      APPEAL from a judgment of the Superior Court of Los
Angeles County. Deirdre Hill, Judge. Reversed and remanded
with directions.
      Raines Feldman, Lauren J. Katunich, Robert M. Shore and
Leticia M. Kimble for Defendants and Appellants.
      Felahy Employment Lawyers, Allen Felahy; Yash Law
Group and Yashdeep Singh for Plaintiff and Respondent.

                         __________________________
                             SUMMARY
       The Labor Code mandates an award of reasonable attorney
fees to the prevailing party in any action brought for the
nonpayment of wages, if any party requests attorney fees at the
initiation of the action. (Lab. Code, § 218.5, subd. (a).)1 But an
action brought for failure to provide rest breaks or meal periods
(§ 226.7) is not “an ‘action brought for the nonpayment of wages’ ”
within the meaning of section 218.5. (Kirby v. Immoos Fire
Protection, Inc. (2012) 53 Cal.4th 1244, 1255 (Kirby); id. at
p. 1259 [“the Legislature intended section 226.7 claims to be
governed by the default American rule that each side must cover
its own attorney’s fees”].)
       The trial court awarded plaintiff over $280,000 in attorney
fees, even though the only wage and hour claims alleged and
litigated were for rest break and meal period violations, and
claims for penalties based on those violations. We conclude the
trial court abused its discretion and reverse the judgment to the
extent it awards attorney fees to plaintiff.
                                FACTS
       Defendants are OS Restaurant Services, LLC and Bloomin’
Brands, Inc. They are the owners or operators of a Fleming’s
Steakhouse & Wine Bar on Olympic Boulevard in Los Angeles.
Plaintiff Raquel Betancourt worked there as a server from 2008
through 2015.
1.     The Complaint
       In August 2016, plaintiff sued defendants. The complaint
alleged defendants regularly failed to give plaintiff her full

1    Further statutory references are to the Labor Code unless
otherwise specified.




                                 2
uninterrupted rest periods, and that defendants wrongfully
terminated plaintiff in retaliation for her making internal
complaints that defendants violated wage and hour laws and food
safety laws.
      Plaintiff alleged she saw a chef using a vegetable cutting
board to prepare raw chicken, and reported the incident to her
manager, but defendants ignored her report. Three months later,
plaintiff informed Tiffany Yeargin, defendants’ senior human
resource business partner, that one of the chefs routinely used
vegetable cutting boards to prepare raw chicken, and that
employees were regularly denied their 10-minute rest periods.
      Immediately following plaintiff’s complaints to
Ms. Yeargin, defendants’ managerial employees began to
retaliate by “highly scrutinizing Plaintiff’s performance” and
singling her out for discipline for spurious reasons. Defendants
continued to prevent her from taking her 10-minute rest periods.
Ms. Yeargin ignored plaintiff’s complaints about the retaliatory
actions.
      The complaint alleged that in December 2015, defendants
issued plaintiff a formal written reprimand “based upon false and
fabricated accusations of insubordination, which resulted in
Plaintiff’s suspension.” After that, plaintiff again informed
Ms. Yeargin of the retaliation and requested the reprimand be
removed from her employment record, but her request was
denied.
      “[I]n further retaliation against Plaintiff for her
whistleblowing activities,” defendants terminated plaintiff’s
employment. “To date, Defendants have refused to pay Plaintiff
all wages earned and unpaid at the time of her termination;
including, without limitation, unpaid rest period premiums.”




                                3
      Plaintiff alleged causes of action for retaliation and
wrongful termination because of her reports of rest break and
food safety violations. She also alleged she was entitled to
recover unpaid premium wages under section 226.7 for the rest
break violations; penalties, costs and attorney fees under
section 226 for failing to include rest break premiums on her
itemized wage statements; and waiting time penalties under
sections 201 through 203 for failure to pay all wages on
termination, “including, without limitation, unpaid premium
wages in lieu of rest periods.”
      The prayer for relief requested attorney fees under
sections 218.5 and 226, Code of Civil Procedure section 1021.5,
“and any other applicable provisions of law.”
2.    The Litigation
      Defendants answered the complaint in October 2016.
      Discovery ensued. We will describe some of it as necessary
in connection with our legal discussion. For now, it suffices to
say that two days after the trial court issued a tentative ruling on
October 11, 2017, compelling plaintiff to comply with discovery
requests and awarding sanctions against her, and one day after
plaintiff produced more than 1,000 previously withheld
documents, the parties settled the case. About a month before
the settlement, the parties had stipulated the complaint could be
amended to add a cause of action for meal period violations.
3.    The Settlement
      The parties put the terms of their settlement agreement on
the record in open court on October 13, 2017. Defendants agreed
to waive plaintiff’s payment of sanctions and to pay plaintiff
$15,375 in full settlement of her claims for failure to provide meal
and rest periods under section 226.7, failure to provide accurate




                                 4
itemized wage statements under section 226, failure to pay all
wages upon termination under sections 201 through 203, and
“any and all wage-and-hour-related causes of action that were or
could have been asserted in the complaint.” Plaintiff agreed to
dismiss with prejudice and without any payment her claims for
retaliation and wrongful termination. The parties agreed to kick
the can down the road on their dispute about plaintiff’s right to
recover attorney fees on her wage and hour claims by agreeing
plaintiff could later file a motion for attorney fees incurred only
on those claims, “consistent with applicable law.”
4.     Plaintiff’s Motion for Attorney Fees
       Plaintiff then sought $580,794 in attorney fees (and costs of
more than $16,000), under sections 218.5 and 226. This consisted
of a lodestar amount of $387,196 and a multiplier of 1.5. No time
records were provided to the court, but plaintiff’s counsel said
869.6 hours were incurred by his firm at various hourly rates.
Plaintiff contended her wage and hour claims were “closely
intertwined” with her retaliation and wrongful termination
claims, so she was entitled to recover all of her fees and costs.
       Defendants opposed the motion, contending that, among
other reasons, Kirby and its progeny dictate that a party cannot,
as a matter of law, recover attorney fees when she prevails only
on a claim for meal or rest break premium pay. Defendants also
contended plaintiff’s claims of retaliation and wrongful
termination were the crux of her case, and virtually all discovery
was focused on those claims. Defendants gave multiple examples
of discovery disputes requiring them to seek court intervention,
none of which was relevant to meal and rest break claims, and
many of which were directed at plaintiff’s claims for economic
damage flowing from her retaliation and wrongful termination




                                 5
claims. Defendants referred to the court’s October 11, 2017
tentative ruling stating that plaintiff “has wrongfully withheld
documents” and that plaintiff and her counsel “have engaged in
repeated abuses of the discovery process for months.” Defense
counsel’s declaration stated that on October 12, 2017, plaintiff
finally produced more than 1,100 probative documents that were
highly damaging to plaintiff’s case and credibility.
       Defense counsel also attached plaintiff’s July 18, 2017
settlement demand. In that demand, plaintiff’s counsel valued
her case at $750,000. Of that total sum, plaintiff’s counsel valued
the rest break and the derivative wage statement and waiting
period penalty claims at less than $13,000.
       Plaintiff came up with a new theory for recovery of all her
attorney fees in her reply to defendants’ opposition to the motion
for attorney fees. She asserted—for the first time—that
“[d]efendants’ own payroll and timekeeping records demonstrate
that Plaintiff was not paid for all hours worked; and that it was
part of Defendants’ timekeeping scheme to unilaterally
reduce/adjust Plaintiff’s timesheets in order to avoid paying
Plaintiff for all hours worked and all earned overtime.”
       The declaration of plaintiff’s counsel attached copies of
defendants’ timekeeping spreadsheets and one of plaintiff’s wage
statements. Plaintiff’s counsel opined that his analysis of these
documents showed plaintiff “was shorted .49 total hours, and
virtually all of this is overtime.” Plaintiff’s counsel further
opined the timekeeping spreadsheets showed “unilateral
downward adjustments,” and “[t]here were 47.82 total hours lost
to ‘adjustments.’ ” Counsel did not state, in the reply papers or in
any subsequent filings, when he had performed this analysis, i.e.,
whether he performed the analysis before filing the motion for




                                 6
attorney fees, or only after getting defendants’ opposition
asserting the focus of the litigation had been on the retaliation
and wrongful termination claims.
       At the January 26, 2018 hearing on the motion for fees, the
court heard argument and continued the hearing for further
briefing. The parties filed additional briefs, declarations and
evidentiary objections. There were several more continuances
following further hearings on the motion, some of which, but not
all of which were reported by a court reporter. One of the
unreported hearings was continued because defense counsel was
pregnant and birth was imminent.
       In supplemental papers, plaintiff’s counsel said, upon
further analysis, he determined that only about 10 percent of the
hours incurred by his firm were devoted primarily to the
retaliation and wrongful termination claims, and 90 percent of
the time was incurred to litigate the wage and hour claims.
Counsel reduced the fee request by 10 percent from the lodestar
of $387,196 to $348,476.40, and did not request a lodestar
multiplier. In later-filed supplemental papers, plaintiff sought
another $48,914 for work performed in litigating the fee
application since filing that motion, for a total of $397,390. No
time records were ever supplied.
       Defendants continued to assert there was no evidence that
plaintiff raised, litigated, and expended attorney fees on any
theory of wage liability other than meal and rest breaks for which
attorney fees cannot be awarded. Defense counsel’s declaration
also stated that plaintiff’s interpretation of the pay records was
wrong, because her counsel looked at the wrong column for hours
worked; and adjustments were made because of failure to clock




                                7
out at the end of a shift, as confirmed on other time reports
produced in discovery.
      On July 13, 2018, without calling the case for hearing, the
court granted the motion for attorney fees in the amount of
$280,794 (and costs of $8,671.95), and set an order to show cause
regarding dismissal for August 31, 2018. The court ruled that,
although “some aspects” of plaintiff’s wage statement and waiting
penalty claims “are seemingly derivative of the Section 226.7
claim, Plaintiff has proffered evidence that establishes that
[those claims] were also premised on timekeeping and payroll
schemes . . . and Plaintiff is thusly entitled to attorneys’ fees
pursuant to Labor Code § 218.5. Further, the settlement
agreement is broad in scope and includes all wage and hour
claims.” The court found counsel’s apportionment of 90 percent of
the work to the underlying wage issues “sufficient for
apportionment purposes.” The court found the number of hours
incurred was unreasonable, the hourly rates were high, and
$280,794 was a reasonable fee award. The court did not explain
how it derived that figure.
      Plaintiff submitted a proposed judgment pursuant to the
terms of the settlement (Code Civ. Proc., § 664.6). Defendants
objected to the proposed judgment on the ground plaintiff did not
request fees for an eligible claim in her initial pleading, and
defendants were not given an opportunity to argue the attorney
fee motion before the court, although it had been continued for
hearing after defense counsel’s pregnancy leave ended.
      The court overruled defendants’ objection and entered
judgment on August 31, 2018, in the principal sum of $15,375,
plus attorney fees of $280,794 and costs of $8,671.95.




                                8
                            DISCUSSION
      Defendants contend the trial court erred in awarding any
attorney fees to plaintiff, because her complaint did not allege
any conduct that could serve as the legal basis for a fee award
under section 218.5; the parties’ settlement agreement provided
no other basis for a fee award because plaintiff was entitled only
to seek fees “consistent with applicable law”; and there is no
evidence that plaintiff’s counsel spent any time on any claim for
nonpayment of wages.
      We agree there was no basis for the trial court’s award of
fees. As we stated at the outset, section 218.5 mandates an
attorney fee award “[i]n any action brought for the nonpayment
of wages,” if any party requests them at the initiation of the
action. (§ 218.5, subd. (a).)2 Kirby tells us that a plaintiff cannot
obtain attorney fees in an action for failure to provide rest breaks
or meal periods. That is because an action for nonprovision of
meal or rest breaks is not an action brought for nonpayment of
wages. The remedy for nonprovision of meal or rest breaks is an
additional hour of pay (often described in the case law as
“premium wages”), but that does not turn a lawsuit for violation
of meal or rest breaks into a lawsuit for nonpayment of wages.
(Kirby, supra, 53 Cal.4th at pp. 1255, 1256-1257, 1259.)

2      “In any action brought for the nonpayment of wages, fringe
benefits, or health and welfare or pension fund contributions, the
court shall award reasonable attorney’s fees and costs to the
prevailing party if any party to the action requests attorney’s fees
and costs upon the initiation of the action. However, if the
prevailing party in the court action is not an employee, attorney’s
fees and costs shall be awarded pursuant to this section only if
the court finds that the employee brought the court action in bad
faith.” (§ 218.5, subd. (a).)


                                  9
       Courts of Appeal since Kirby have held a plaintiff also
cannot recover penalties for waiting time and wage statement
violations in an action for failure to provide rest breaks or meal
periods. (Naranjo v. Spectrum Security Services, Inc. (2019)
40 Cal.App.5th 444, 474, review granted & depublication denied,
Jan. 2, 2020, S258966 (Naranjo); Ling v. P.F. Chang’s China
Bistro, Inc. (2016) 245 Cal.App.4th 1242, 1261 (Ling).)
       In Ling, the court held, following Kirby, that a claim for
waiting time penalties is “purely derivative of” a suit for the
unpaid wages from which the penalties arise. (Ling, supra, 245
Cal.App.4th at p. 1261.) Since a suit for non-provision of breaks
is not a suit for unpaid wages, it cannot be the basis of a claim for
waiting time penalties. “We understand that the remedy for
a section 226.7 violation [failure to provide breaks] is an extra
hour of pay, but the fact that the remedy is measured by an
employee's hourly wage does not transmute the remedy into a
wage as that term is used in section 203 [waiting time], which
authorizes penalties to an employee who has separated from
employment without being paid.” (Ibid.)
       Then, in Naranjo, the court held that actions for
nonprovision of meal or rest periods “do not entitle employees to
pursue the derivative penalties in sections 203 [waiting time] and
226 [wage statement violations].” (Naranjo, supra,
40 Cal.App.5th at p. 474; see ibid. [“[t]he language in sections 200
[defining “wages”], 203 and 226 ‘is clear and unambiguous’ ”].)
The court concluded that, because the appellants “were not
entitled to section 226 derivative penalties, they were not entitled
to section 226, subdivision (e) attorney fees.” (Ibid.)
       We agree with Ling and Naranjo that a plaintiff is not
entitled to recover penalties for waiting time and wage statement




                                 10
violations based on claims of nonprovision of rest or meal periods,
and likewise cannot obtain attorney fees based on those claims.
       Plaintiff, however, does not address these authorities.
Instead, she contends, first, that defendants provided an
inadequate appellate record. Then she contends the “predicate
misconduct” of her causes of action for waiting time and wage
statement violations “was not rest period violations,” but instead
was defendants’ “unlawful timekeeping and payroll schemes.”
Both contentions are without merit.
1.     The Inadequate Record Claim
       Plaintiff contends the record is inadequate because
defendants did not provide reporter’s transcripts of three
hearings on the attorney fee motion. Plaintiff points to three
unreported hearings held on March 8, June 29, and August 31,
2018. Plaintiff asserts that at those three hearings, “the trial
court heard and considered arguments and evidence regarding
Plaintiff’s entitlement to attorney’s fees and the reasonableness
of the amount sought.” Those transcripts are necessary, plaintiff
tells us, “to assess the basis of the trial court’s fee award.” They
are not.
       The claim that the court “heard and considered . . .
evidence” at the March 8 hearing is clearly unfounded. In the
absence of the all-purpose judge who presided over this case from
the outset, another judge on March 6 granted an ex parte
application to select a new hearing date for the attorney fees
motion on March 8, when the all-purpose judge would be back in
court to reset the hearing. The March 6 minute order states the
attorney fees motion “will not be argued on March 08, 2018.”
Plaintiff’s own notice of ruling for the March 8 hearing tells us
that it was a hearing on defendants’ ex parte application to




                                 11
continue the attorney fee hearing—not a hearing on the attorney
fee motion.
       The August 31, 2018 hearing was on the order to show
cause regarding dismissal, at which defendants’ objection to the
proposed judgment was overruled. Attorney fees had already
been awarded, so there could not have been any evidence
presented on that topic.
       That leaves the June 29, 2018 hearing. The minute order
for that hearing states the court heard arguments from counsel
and then continued the hearing to July 13. Plaintiff contends
that at the June 29 hearing, the court heard arguments on the
merits of the motion. Defendants say there was no argument on
June 29. It is immaterial what arguments the court entertained
on June 29, because plaintiff does not contend any evidence was
presented at that hearing. As the cases plaintiff cites show, it is
“unreported trial testimony” that results in a judgment
“conclusively presumed correct as to all evidentiary matters”
(italics omitted), when no error is apparent on the face of the
existing appellate record. (Estate of Fain (1999) 75 Cal.App.4th
973, 992; see ibid. [“To put it another way, it is presumed that
the unreported trial testimony would demonstrate the absence of
error.”]; see also Vo v. Las Virgenes Municipal Water Dist. (2000)
79 Cal.App.4th 440, 448 [absence of a record “concerning what
actually occurred at the trial” precludes a determination that the
trial court abused its discretion in determining attorney fees were
reasonable].)
       In short, the claim that we must affirm the judgment
because defendants presented an inadequate record for judicial
review is unfounded.




                                12
2.    The Predicate Conduct for Plaintiff’s Claims
      As we have observed, plaintiff does not address the
governing legal authorities that bar attorney fees for claims of
meal and rest break violations. Instead, she contends “the
predicate misconduct” of her wage and hour claims “was not rest
period violations,” but rather “failure to pay earned wages.”
      This is a theory reflected nowhere in the record of the
attorney fee proceedings—until plaintiff filed her reply papers.
And in those reply papers, plaintiff cited no evidence of any work
performed before the settlement that referred to or suggested the
existence of a claim or cause of action for failure to pay earned
wages.
      First, the complaint contained no cause of action for the
unpaid balance of minimum wage or overtime compensation
(§ 1194)—only the cause of action for failure to provide rest
periods, and for wage statement and waiting time penalties. The
complaint specifically alleged in the wage statement cause of
action that defendants knowingly failed to furnish accurate and
complete statements “by failing to include her rest break
premiums on her itemized wage statements.” There was no
allegation of failure to pay earned wages.
      Plaintiff points out that her waiting time cause of action
alleged that defendants failed and refused to pay “the earned and
unpaid wages due and owing to Plaintiff.” But she omits the
remainder of the allegation that states, “including, without
limitation, unpaid premium wages in lieu of rest periods.” While
the allegation is “without limitation,” the complaint is devoid of
any factual allegations suggesting a failure to pay anything other
than premium wages for nonprovision of rest periods—for which
attorney fees are not available.




                                13
      Second, at a session of plaintiff’s deposition on March 30,
2017, when asked about her discovery compliance, plaintiff
confirmed that she had searched only for text messages between
her and her former coworkers regarding rest breaks (i.e., not all
messages between them), explaining, “[c]onsidering this is a
lawsuit about rest breaks, yes.”
      Third, on July 18, 2017, plaintiff’s counsel emailed defense
counsel a demand for settlement. Plaintiff’s demand described
her “unpaid wage claims” as seeking payment for each missed
rest break, plus penalties for the consequent waiting time and
wage statement violations. There was no ambiguity on the point;
plaintiff did not claim any other unpaid wages—only the
premium pay for failure to provide rest breaks. Plaintiff valued
her case at $750,000, less than $13,000 of which she attributed to
the “unpaid wage claims.”3


3      Plaintiff contends that it was “improper[] and unethical[]”
for defendants to disclose settlement communications that are
“blatantly inadmissible,” citing Evidence Code section 1154
(“Evidence that a person has accepted or offered or promised to
accept a sum of money . . . in satisfaction of a claim, as well as
any . . . statements made in negotiation thereof, is inadmissible
to prove the invalidity of the claim or any part of it.”). But
defendants were not trying to prove the invalidity of any claim
plaintiff made before the settlement. They were trying to prove
that plaintiff did not make a claim that entitled her to attorney
fees. (See Fieldson Associates, Inc. v. Whitecliff Laboratories, Inc.
(1969) 276 Cal.App.2d 770, 772, fn. omitted [“Section 1154 makes
an offer of compromise inadmissible to show invalidity of the
claim to which the offer related. Here the letters were not used
to prove . . . invalidity of[] the claim concerning which the offer of
compromise was made.”]; see also Zhou v. Unisource Worldwide,
Inc. (2007) 157 Cal.App.4th 1471, 1479 [letters “were not offered


                                  14
      Fourth, on September 13, 2017, a month before the case
settled, plaintiff and defendants stipulated to the addition of a
seventh cause of action for failure to provide meal periods. But at
no time did plaintiff ever seek to amend the complaint to add a
cause of action for failure to pay earned wages.
      To summarize, the appellate record includes nothing
indicating a claim for nonpayment of wages until after the
settlement, and after plaintiff filed her motion for attorney fees.
The first time plaintiff asserted she had a claim for unpaid wages
was in her reply papers. The trial court relied on two exhibits
plaintiff filed with those reply papers, finding that this evidence
established that her waiting time and wage statement claims
“were also premised on timekeeping and payroll schemes.” That
finding is not supported by the record and consequently was an
abuse of discretion.
      The exhibits on their face say nothing about nonpayment of
wages. Plaintiff’s counsel opined that those exhibits show
plaintiff “was shorted .49 total hours” in one pay period, and
defendants made “unilateral downward adjustments” to her
hours on 15 days between 2012 and 2015. Defense counsel
disagreed with plaintiff’s counsel’s interpretation of both exhibits,
but, at most, plaintiff’s counsel’s opinion is post hoc evidence that
does nothing to show plaintiff’s claims were ever premised on
“timekeeping and payroll schemes.” There is no evidence
plaintiff’s counsel ever expended any attorney time on
“timekeeping and payroll schemes,” except in preparation of the
reply papers.


to disprove the merits of the claim under negotiation, but rather
‘to show the invalidity of a different claim’ ”].)




                                 15
       Plaintiff resists this conclusion, taking several tacks.
       Plaintiff says that defendants admitted “that they failed to
issue Plaintiff one or more wage statements,” triggering liability
under section 226 for wage statement violations. For this claim,
plaintiff cites only the September 6, 2017 deposition of Tiffany
Yeargin, defendants’ senior human resource business partner,
who was asked, “Did you ever give [plaintiff] a final paycheck?”
Ms. Yeargin responded, “I did not give her a final paycheck.”
That is plainly not an admission that defendants failed to provide
a final wage statement (and plaintiff did not so allege in her
complaint); it is merely a statement that Ms. Yeargin did not do
so herself.
       Plaintiff faults defendants for contending that, at her
deposition, plaintiff never testified that she was entitled to
compensation for unpaid hours worked. (Defense counsel’s
February 8, 2018 declaration stated she reviewed plaintiff’s
deposition transcripts and there was no such testimony.)
Plaintiff asserts on appeal that counsel’s declaration was a
“mistaken recollection of what Plaintiff had testified to” and that
defendants “fail to cite to Plaintiff’s deposition transcript.” But
defendants do cite to plaintiff’s deposition transcript where she
testified that “this is a lawsuit about rest breaks,” and plaintiff
offered no deposition testimony to the trial court to suggest that
defense counsel was mistaken, or that plaintiff ever testified
about any shortfall in payment of earned wages.
       Plaintiff argues she sought attorney fees under
sections 218.5 and 226 in her operative complaint. Plaintiff again
misses, or ignores, the point. It does not matter that plaintiff
cited section 218.5 in her complaint. The point is that she did not
allege a cause of action for nonpayment of wages, which is the




                                16
necessary predicate for an award of fees under section 218.5.
Again, plaintiff’s argument simply ignores the applicable legal
rules and the fact that she neither alleged nor litigated any cause
of action or claim for “nonpayment of wages.”
       Next, plaintiff makes the peculiar argument that under the
stipulated judgment, she “was entitled to seek fees for wage-and-
hour causes of action ‘that could have been asserted in the
complaint.’ ” (Boldface & underscore in original.) The judgment
says no such thing, and we are at a loss to understand how
plaintiff can have incurred any attorney fees for claims that she
could have but did not actually assert or litigate.
       Finally, plaintiff contends we must defer to the trial court’s
finding that counsel’s declaration supported the attorney fee
award, and we cannot reweigh the evidence that 90 percent of the
work was done to litigate the wage and hour claims. But the trial
court abuses its discretion if its decision is legally erroneous or if
it is unsupported by the record. As we have seen, it was both.
       The only evidence the court relied on in finding plaintiff
was entitled to fees under section 218.5 was the post hoc analysis
of “timekeeping and payroll schemes” that plaintiff presented
with her reply papers, with no indication when that work was
performed. Defendants argue, and we agree, that the record
confirms that discovery and motion practice were not directed at
any timekeeping and payroll theories, so the record provides no
support for the allocation of any attorney time to claims for
nonpayment of wages.
       Plaintiff argues not all written discovery, and not all
deposition transcripts, and not all motion communications that
occurred are in the record; “[b]ecause this material evidence is
absent from the record on appeal, the Court must presume that




                                 17
Plaintiff presented sufficient evidence to support the trial court’s
factual finding.” That is not the case. The record before us is the
same record the parties placed before the trial court, and in the
trial court, plaintiff had the burden of proving her entitlement to
attorney fees. If the record does not support that entitlement—
and it does not—it is the trial record that is inadequate, not the
appellate record.
                            DISPOSITION
       The judgment is reversed to the extent it awards attorney
fees to plaintiff, and the cause is remanded for entry of a new and
different judgment denying recovery of attorney fees. Defendants
shall recover costs on appeal.



                               GRIMES, J.
      WE CONCUR:



                        BIGELOW, P. J.




                        STRATTON, J.




                                18
Filed 5/21/20
                  CERTIFIED FOR PUBLICATION

    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                           DIVISION EIGHT



RAQUEL BETANCOURT,                    B293625

   Plaintiff and Respondent,         (Los Angeles County
                                     Super. Ct. No. BC629916)
       v.
                                      ORDER CERTIFYING
OS RESTAURANT                              OPINION
SERVICES, LLC et al.,                  FOR PUBLICATION

   Defendants and Appellants.       [No change in judgment]


THE COURT:
      The opinion in the above-entitled matter filed on April 30, 2020,
was not certified for publication in the Official Reports. For good cause,
it now appears that the opinion should be published in the Official
Reports and it is so ordered.
      There is no change in the judgment.



____________________________________________________________
BIGELOW, P. J.              GRIMES, J.        STRATTON, J.
