Filed 1/26/16
                          CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                     DIVISION ONE


USS-POSCO INDUSTRIES,
      Plaintiff, Cross-Defendant, and             A140457
Respondent,
                                                  (Contra Costa County
v.                                                Super. Ct. No. MSC1102781)
FLOYD CASE,
      Defendant, Cross-Complainant, and
Appellant.

USS-POSCO INDUSTRIES,
     Plaintiff and Respondent,                    A142145
v.
FLOYD CASE,                                       (Contra Costa County
     Defendant and Appellant.                     Super. Ct. No. MSC1102781)


                                   I. INTRODUCTION
        Defendant and appellant Floyd Case voluntarily enrolled in a three-year,
employer-sponsored educational program. He agreed in writing that if he quit his job
within 30 months of completing the program, he would reimburse his employer, USS-
POSCO Industries (UPI), a prorated portion of program costs. Two months after
completing the program, Case went to work for another employer. When he refused to
reimburse UPI, the company sued for breach of contract and unjust enrichment. Case
cross-complained, asserting the reimbursement agreement was unenforceable and UPI
had violated the Labor Code and other statutory provisions in seeking reimbursement.




                                             1
          The trial court granted UPI’s motion for summary judgment on both its complaint
and Case’s cross-complaint, and subsequently granted UPI’s motion for attorney fees for
defeating Case’s wage claims. In granting the fee motion, the court applied the version
of Labor Code section 218.5 in effect at the time of the summary judgment proceedings,
rather than the version in effect at the time it awarded fees, which permits fees to a
prevailing employer only when the employee’s wage claims have been brought in “bad
faith.”
          We affirm the summary judgment, but reverse and remand the attorney fees
award. Under California Supreme Court precedent, statutory provisions that alter the
recovery of attorney fees are deemed procedural in nature and apply to pending litigation.
                                      II. BACKGROUND
A. Case’s Participation in UPI’s Training Program
          UPI hired Case in 2007. He initially worked as an entry-level Laborer and Side
Trim Operator. As a condition of employment, Case joined Local 1440 of the United
Steelworkers of America.
          UPI faced a shortage of skilled Maintenance Technical Electrical (MTE) workers.
To address this, UPI, after consultation with Local 1440, decided to implement a Learner
Program. Thus, in June 2008, the company and Local 1440 entered into a Memorandum
of Understanding (MOU) stating UPI would train up to 10 current employees, while
continuing to pay their wages and benefits, in an effort to qualify them as MTEs. UPI
and the union recognized “that, due to the strong demand for Maintenance Technician
Electrical, the Company needs to retain successful candidates as employees for a
reasonable period of time in order to recoup its substantial $46,000 investment in their
training.” UPI and the union therefore agreed UPI “may require candidates in the
Learner Program to sign the attached Reimbursement Agreement that would require
reimbursement for a portion of the training should a candidate voluntarily terminate
employment within 30 months of completion of the Learner Program.”

                                              2
       The Learner Program required 135 weeks of instruction, 90 weeks of on the job
training and 45 weeks of classroom work (partially courses at a local community college,
partially other courses). The goal was to complete training within 162 weeks, or just over
three years. If a participant successfully completed the program and then passed UPI’s
MTE test, he or she would be assigned to an MTE vacancy.
       The MTE position and Learner Program aligned with Case’s desire to work as an
engineer. Case understood joining the Learner Program was voluntary. He also
understood he did not need to go through the Learner Program or a similar formal
educational program to obtain an MTE position. When asked if “going to the MTE
learner program [was] the only avenue . . . available to you to become an MTE,” Case
answered, “No.” A prospect could simply take and pass UPI’s MTE test. However, Case
did not attempt the test prior to participating in the Learner Program because he did not
think he had the knowledge to pass. He was also unsure if he would pass if he undertook
a self-study program. In any case, the Learner Program allowed him to get trained during
the workday instead of after hours, and it would lead to higher pay. Accordingly, he
applied for the program and was one of nine selected participants.
       Case was informed of the reimbursement obligation during a training session for
prospective participants. A presentation slide entitled “Repayment Agreement” told
prospects they would “sign an agreement to reimburse a portion of their training cost
should they voluntarily terminate employment within 30 months of program completion.”
The slide, consistent with the MOU, indicated the obligation would be “$46,000 prorated
over 30 months.”
       Case was subsequently presented with a written reimbursement agreement and
signed it without objection. Under that one-page agreement, Case acknowledged UPI
would pay his “wages, benefits and training expenses” while he was in the Learner
Program, but there would be no guarantee participation in the program would insure
promotion, transfer, or continued employment with UPI. He further agreed that if he was

                                             3
fired for cause or voluntarily left UPI within 30 months after completing the program, he
would, absent a compelling hardship such as a serious injury or family death, refund
$30,000 of the expense of his training, less $1,000 per month of subsequent service at
UPI.1
        Two months after completing the Learner Program and obtaining an MTE
position, Case left UPI for Lawrence Livermore National Laboratory to work as a high
voltage electrician.
B. The Lawsuit
        When Case refused to reimburse UPI, the company filed the instant lawsuit
alleging breach of contract and unjust enrichment. UPI sought damages of $28,000—that
is, $1,000 per month that remained in Case’s 30-month earn-back period.
        Case, in turn, filed a cross-complaint on behalf of himself and an asserted class of
individuals who signed the same training reimbursement agreement. The first cause of
action, for declaratory relief, alleged the agreement was unlawful because: (a) it violated
Labor Code2 sections 221, 222, and 223 (regarding wages), 401–410 (governing bonds),
450 (governing employee expenditures), 3751 (regarding provision of workmens’
compensation insurance), and 2802, subd. (a) (regarding employer payment of costs of
business operations); (b) it violated the Federal Fair Labor Standards Act’s “free and
clear” payment requirement and its requirement that an employer negotiate with an


        1
          UPI and the union had arrived at the $46,000 per person cost figure in the MOU
for the purpose of having some tangible estimate of costs. UPI then kept track of actual
costs as it implemented the Learner Program and produced evidence of an investment of
over $500,000 in setting up the program, which was only run once. Big ticket items
included $170,000 for creation of lab space at the community college, over $225,000 for
“trainers,” tens of thousands of dollars for a variety of other equipment, and $30,000 for
program administration. UPI also paid in excess of $3,000 for Case’s community college
tuition fees and books. It thus estimated Case’s actual share of training costs at over
$60,000.
        2
          All further statutory citations are to the Labor Code unless otherwise indicated.


                                              4
employee’s union; (c) it violated Business and Professions Code section 16600
(governing restraints on the right to practice a profession); and (d) it lacked consideration.
The second cause of action alleged the agreement was an unfair business practice under
Business and Professions Code section 17200. The third through eighth causes of action
alleged direct violations of various Labor Code provisions raised in the first cause of
action, namely sections 221, 222, 223, 400–410, 2802, and 432.5. The prayer sought a
declaration that the reimbursement agreement was invalid, disgorgement of any payments
made by employees under the agreement, civil penalties under the Labor Code Private
Attorney General Act (PAGA; § 2699), and attorney fees and costs.
       UPI subsequently moved for summary judgment on its complaint and Case’s
cross-complaint, asserting the reimbursement agreement was valid and not unlawful
under any theory Case raised in his cross-complaint.
       The trial court granted UPI’s motion, and the parties thereafter stipulated to a
judgment in favor of UPI in the amount of $28,000 plus prejudgment interest and costs.3
       On December 5, 2013, pursuant to section 218.5, UPI moved for $166,798.50 in
attorney fees for successfully defending against three of the Labor Code claims asserted
in Case’s cross-complaint (for alleged violations of §§ 221, 222 & 223). In justifying the
amount sought, UPI claimed it had litigated the case aggressively in part because of the
class action allegations and potential civil penalties under various code provisions,
including PAGA (assuming Case could have satisfied the requirements of that statute).
       Case opposed the motion. He first maintained section 218.5, as amended effective
January 1, 2014, authorizes fees to an employer only if the employee’s suit is brought in
bad faith and he had not asserted his cross-claims in bad faith. He second argued UPI’s


       3
         Despite the stipulated final judgment, we may review the summary judgment
rulings adverse to Case, and UPI does not challenge Case’s ability to appeal. (See
Villano v. Waterman Convalescent Hospital, Inc. (2010) 181 Cal.App.4th 1189, 1198
[105 Cal.Rtpr.3d 276].)


                                              5
claimed fees were excessive, the wage claims added no real work for UPI’s counsel, and
PAGA’s one-way fee shifting statute (which favors only prevailing employees) did not
support any fee award to UPI.
       Applying the pre-2014 version of section 218.5, the trial court granted UPI’s fee
motion, but cut the requested amount in half, awarding $80,000.
                                     III. DISCUSSION
A. Summary Judgment
       “ ‘On appeal after a motion for summary judgment has been granted, we review
the record de novo,’ ” considering all the admissible evidence submitted in support and
opposition. (Horne v. District Council 16 International Union of Painters & Allied
Trades (2015) 234 Cal.App.4th 524, 534 [183 Cal.Rtpr.3d 879].) “A motion for
summary judgment is properly granted ‘if all the papers submitted show that there is no
triable issue as to any material fact and that the moving party is entitled to a judgment as
a matter of law.’ (Code Civ. Proc., § 437c, subd. (c).)” (Ibid.)
       1. Labor Code Sections 2802, 2804 and 450
       Invoking Labor Code sections 2802, 2804 and 450, which prevent employers from
passing certain operating expenses on to employees, Case contends the reimbursement
agreement is an unlawful attempt to foist workforce costs onto employees. None of these
statutes, however, is implicated by a strictly voluntary, optional training program of the
sort UPI offered here.
       Section 2802 provides in pertinent part, “An employer shall indemnify his or her
employee for all necessary expenditures or losses incurred by the employee in direct
consequence of the discharge of his or her duties . . . .” (§ 2802, subd. (a); Cochran v.
Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1144 [176 Cal.Rtpr.3d 407].)
Section 2804 provides that this indemnification requirement cannot be waived by
contract. (§ 2804; Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, 951–952
[81 Cal.Rtpr.3d 282, 189 P.3d 285] (Edwards).)

                                              6
       Section 2802 only applies, however, to expenditures made or losses sustained by
an employee, and then, only to those expenditures or losses an employee must
“necessarily incur.” (Gattuso v. Harte-Hanks Shoppers, Inc. (2007) 42 Cal.4th 554, 567
[67 Cal.Rtpr.3d 468, 169 P.3d 889]; see also Carter v. Entercom Sacramento, LLC
(2013) 219 Cal.App.4th 337, 346 [161 Cal.Rptr.3d 782] [if employer offered legal
counsel to employee, it would not be “necessary” for employee to hire own counsel]; Los
Angeles Police Protective League v. City of Los Angeles (1994) 27 Cal.App.4th 168, 177
[32 Cal.Rptr.2d 574] [“This right to indemnity encompasses only the right to indemnity
for necessary expenditures.”].) Thus, the elements of a section 2802 claim are: “(1) the
employee made expenditures or incurred losses; (2) the expenditures or losses were
incurred in direct consequence of the employee’s discharge of his or her duties, or
obedience to the directions of the employer; and (3) the expenditures or losses were
necessary.” (Cassady v. Morgan, Lewis & Bockius LLP (2006) 145 Cal.App.4th 220,
230 [51 Cal.Rtpr.3d 527].)
       Here, Case, himself, made no expenditure, nor suffered any loss, in direct
consequence of the discharge of his duties or in obedience to the directions of UPI.
Rather, it was UPI that fronted the costs of his voluntarily undertaken advanced training.
       And even if Case could be said to have made a qualifying expenditure or incurred
a loss, such expenditure or loss was not necessary. There were at least three avenues to
securing an MTE position: (1) pass the MTE test without any additional education or
training; (2) pass the MTE test after self study or self-arranged study; and (3) pass the
MTE test after enrolling in and completing UPI’s Learner Program. As Case admits, an
UPI employee could have chosen options 1 or 2, and owed UPI nothing. Case, however,
voluntarily chose option 3, presumably because he would get training during the
workday, would earn wages during the lengthy training period, and would obtain the
training without any upfront cost and potentially without any cost at all. In short, the
educational expenses Case ultimately incurred were a matter of personal choice—they

                                              7
were not an employer-imposed requirement of either continued employment as a laborer
and side trim operator, or of the MTE position he sought.
       Accordingly, the In re Acknowledgment Cases (2015) 239 Cal.App.4th 1498
[192 Cal.Rtpr.3d 337], on which Case relies, are readily distinguishable. In fact, these
consolidated cases highlight the important distinction between necessary and unnecessary
expenditures. The In re Acknowledgment Cases addressed the City of Los Angeles’s
requirement that all new police officers attend an academy which included not only state-
mandated peace officer standards and training (POST) certification, but also
supplemental training specific to the city’s law enforcement needs. Concerned that it was
training officers, only to see them depart for other departments, the city sought
reimbursement from any officer who voluntarily left its force within five years of
graduating. (Id. at pp. 1501, 1505–1507.) The appellate court held that because POST
certification is a state-imposed requirement for any peace officer which can be obtained
through a variety of programs, it is not an “employer-mandated” expense and therefore is
not an “expense of discharging the duties of employment” with the city under
section 2802. (In re Acknowledgement Cases, at p. 1507.) However, because the city’s
additional training, required of all new city officers, is city-specific and is provided solely
by the city, it is an “employer-mandated” expense for which the city cannot seek
reimbursement. (Id. at pp. 1507–1508.)
       The Learner Program, in contrast, was not required of any UPI employee, even
those interested in becoming a MTE. Rather, the program was entirely voluntary and
only one of the ways in which an employee interested in becoming a MTE could secure
the training for that occupation. That the program provided training for a readily
transferable occupation—as illustrated by Case’s move to LLNL—also made it much
more akin to basic POST than to an employer-specific training program like that required
by, and provided solely by, the City of Los Angeles.



                                              8
        Turning to section 450, subdivision (a) of that section provides, “No employer, or
agent or officer thereof, or other person, may compel or coerce any employee, or
applicant for employment, to patronize his or her employer, or any other person, in the
purchase of any thing of value.” (§ 450, subd. (a).) As discussed, no compulsion or
coercion was brought to bear on Case to participate in the Learner Program. Rather, the
program was entirely voluntary.
        For similar reasons, there was no violation of the statutes pertaining to employee
bonds. Section 401 requires employers to pay for bonds if they are “required,” and so
does not apply here. (§ 401.) Section 402 prohibits the demanding, exacting, or
accepting of any “cash bond” for most purposes. (§ 402.) While a cash bond can take
many forms (§ 406), here Case put up no cash. Rather, it was UPI that fronted his
training expenses, and no deduction was ever made from his paid wages. Thus, Quillian
v. Lion Oil Co. (1979) 96 Cal.App.3d 156 [157 Cal.Rptr. 740], which both parties cited in
connection with the bond laws, is inapposite. That case concerned a reduction in wages
in the amount of a business shortage, a scenario entirely different from that here.
        2. Business and Professions Code Section 16600
        Case contends the reimbursement agreement is also an invalid restraint on
employment under Business and Professions Code section 16600, which provides
relevant part, “every contract by which anyone is restrained from engaging in a lawful
profession, trade, or business of any kind is to that extent void.” (Bus. & Prof. Code,
§ 16600.) A like argument was rejected in City of Oakland v. Hassey (2008)
163 Cal.App.4th 1477 [78 Cal.Rptr.3d 621] (Hassey), and we reach the same conclusion
here.
        In Hassey, a new police officer recruit agreed to a conditional offer of
employment. The agreement, authorized by a MOU with the police officers’ union,
provided that the new officer would be trained at the department academy at a cost of
$8,000 (exclusive of wages), and if he left within the first five years of service, he would

                                              9
owe the department a prorated share of that cost. (Id. at p. 1483.) The officer completed
the academy, but left within his first year of service. (Id. at p. 1484.)
       With respect to the officer’s claim that the reimbursement agreement violated
Business and Professions Code section 16600, the appellate court stated, “To the extent
that Hassey argue[d] that his agreement to repay Oakland was an impermissible covenant
not to compete . . . , an identical argument with respect to a Wisconsin anticompetition
statute was specifically rejected in Heder. ([Heder v. City of Two Rivers, Wisconsin (7th
Cir. 2002) 295 F.3d 777, 780] [reimbursement agreement did not restrict employee’s
ability to compete with city after leaving its employ].)[4] We recognize that in California,
‘the general rule is that covenants not to compete are void’ (Kelton v. Stravinski (2006)
138 Cal.App.4th 941, 946 . . . ), whereas under the Wisconsin law analyzed in Heder,
restrictive covenants in employment contracts are permitted if they are ‘reasonably
necessary for the protection of the employer or principal.’ (Wis. Stat. § 103.465; cf.
Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 900
[72 Cal.Rptr.2d 73] [Bus. & Prof. Code, § 16600 ‘ “has specifically been held to
invalidate employment contracts which prohibit an employee from working for a
competitor when the employment has terminated, unless necessary to protect the

       4
          Heder explained why a state, as a matter of public policy, might embrace
education reimbursement agreements. An employee receives “considerable benefits,”
such as training and enhanced compensation and does not have to underwrite his or her
own education. The employer obtains a better skilled work force. And the community
benefits from the stability of local skilled labor and incentives to remain in the local work
force. (Heder v. City of Two Rivers, supra, 295 F.3d at pp. 781–782.) In addition,
numerous industries require specialized training as a perquisite to employment. “If an
employer may require employees to pay up front, why can’t the employer bear the
expense but require reimbursement if an early departure deprives the employer of the
benefit of its bargain? A middle ground also would be feasible (and lawful): The
employer could require the worker to pay for his own training but lend the worker the
money and forgive repayment if he sticks around. . . . If that system is lawful, as it is,
then the economically equivalent system” of straightforward reimbursement agreements
is as well.” (Ibid.)


                                              10
employer’s trade secrets. [Citation.]” ’].) The fact remains, however, that nothing in the
agreements Hassey signed ‘restrained [him] from engaging in [his] lawful trade, business
or profession.’ (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 407 [75 Cal.Rptr.2d 257]
[analyzing Bus. & Prof. Code, § 16600].) Nothing prevented him from working for
another police department, or anywhere else, for that matter.” (Hassey, supra,
163 Cal.App.4th at p. 1491, fn. omitted.)
       We agree with the reasoning of Hassey and, likewise, conclude Case has no claim
under Business and Professions Code section 16600. He voluntarily agreed to participate
the training program and understood UPI would front all the costs of the program and
expected reimbursement of training costs if he chose to leave within 30 months of
completing the program. This was an agreement concerning advanced educational costs.
It did not restrain Case from working for a competitor or any other entity. Indeed, Case
quit UPI and went to work elsewhere, and he was entirely free to do so. He had also
agreed to reimburse UPI for the costs it fronted for his advanced training, a benefit Case
retained despite his departure.
       Case maintains Hassey is no longer good law in light of the Supreme Court’s
decision in Edwards, supra, 44 Cal.4th 937, which considered “[t]o what extent does
Business and Professions Code section 16600 prohibit employee noncompetition
agreements.” (Id. at p. 941, fn. omitted.) The court broadly answered that an agreement
violates this statutory provision even if it only “limits,” rather than “prohibits,” an
employee’s practice of “her profession, trade, or business.” (Id. at pp. 946–947.)
Accordingly, courts need not evaluate the reasonableness of a restraint—because all
restraints are forbidden. (Id. at pp. 949–950.)
       The court therefore “conclude[d] that [employer] Andersen’s noncompetition
agreement was invalid. As the Court of Appeal [had] observed, ‘The first challenged
clause prohibited Edwards, for an 18-month period, from performing professional
services of the type he had provided while at Andersen, for any client on whose account

                                              11
he had worked during 18 months prior to his termination. The second challenged clause
prohibited Edwards, for a year after termination, from “soliciting,” defined by the
agreement as providing professional services to any client of Andersen’s Los Angeles
office.’ The agreement restricted Edwards from performing work for Andersen’s Los
Angeles clients and therefore restricted his ability to practice his accounting profession.
[Citation.] The noncompetition agreement that Edwards was required to sign before
commencing employment with Andersen was therefore invalid because it restrained his
ability to practice his profession.” (Edwards, supra, 44 Cal.4th at p. 948.)
       Edwards thus addressed a quintessential noncompete agreement that expressly
restrained an employee from working on certain matters and from soliciting certain
former clients. The agreement at issue in Hassey and the one Case signed here did no
such thing. Rather, the reimbursement agreement Case signed concerned the
reimbursement of costs of a voluntarily attended education program.
       Nor do the cases cited in Edwards and relied on by Case compel a different result
here. In Muggill v. Reuben H. Donnelley Corp. (1965) 62 Cal.2d 239, 243 [42 Cal.Rptr.
107, 398 P.2d 147] (Muggill), for example, a “provision forfeiting plaintiff’s pension
rights if he works for a competitor restrain[ed] him from engaging in a lawful business
and [was] therefore void.” In Chamberlain v. Augustine (1916) 172 Cal. 285, 286–288
[156 P. 479] (Chamberlain), an employee agreed to “pay the sum of . . . $5,000 as
liquidated damages” if he became involved in a competing business, which
impermissibly “operate[d] to restrain Augustine from carrying on the business
mentioned.” (Id. at p. 288.) Muggill is readily distinguishable because it dealt with
clawing back an employee’s earnings if he chose to work for a competitor, and
Chamberlin is similarly distinguishable because it dealt with liquidated damages, or a
“price,” for choosing to compete. The reimbursement agreement here did not curb




                                             12
competition, but rather, addressed a voluntarily undertaken and valuable educational
opportunity.5
       Golden v. California Emergency Physicians Medical Group (9th Cir. 2015)
782 F.3d 1083 (Golden), which Case emphasized at oral argument, is also
distinguishable. The issue in Golden was whether Business and Professions Code section
16600 is limited to traditional noncompete clauses or can apply to other kinds of
agreements. The parties, a physician terminated from an emergency medical practice and
the medical consortium providing those services to numerous facilities, had reached a
settlement in court that included an agreement the physician would not work for the
consortium or at any facility it serviced or owned in the future. (Id. at pp. 1084–1085.)
When the plaintiff refused to sign the written agreement memorializing the settlement,
including because of its no-work provision, his former attorney and the consortium
successfully moved to enforce it. (Id. at p. 1085.)
       The Ninth Circuit reversed and remanded, concluding section 16600 is not limited
to standard noncompete clauses and the district court should determine whether the no-
work provision constituted a restriction of “substantial character” on the plaintiff’s
practice. (Golden, supra, 782 F.3d at pp. 1092–1093.) The circuit court discussed
Chamberlain and Edwards, discerning nothing in those cases limiting the kind of
provision subject to section 16600. (Golden, at pp. 1090–1091.) It also observed Hassey
did not purport to limit the application of the statute, and in a single sentence, questioned

       5
          Case also cited to a Michigan Supreme Court case, Sands Appliance Services,
Inc. v. Wilson (2000) 463 Mich. 231, 243 (Sands). However, Sands actually undercuts
his argument. Although the court invalidated a mandatory condition of employment to
pay a weekly sum out of wages toward education, it also pointed out: “some employers
offer to fund employees’ educations with the understanding that the employees will
repay, unless they remain with the employer for a specific period. Such programs do not
violate [Michigan’s fringe benefit law]. . . . As with reimbursement for personal phone
calls and paying for employer-provided tools removed after a job ends, they are optional
and not a condition of employment or continued employment.” (Ibid.)


                                             13
whether “perhaps” the outcome in Hassey should have been different. (Id. at p. 1092.)
For all the reasons we have discussed, we do not share this concern. Repayment of the
fronted costs of a voluntarily undertaken educational program, the benefits of which
transcend any specific employment and are readily transportable, is not a restraint on
employment.
       3. National Labor Relations Act, title 29 United States Code section 159(a)
       Case also claims the reimbursement agreement was the result of improper direct
bargaining with him, circumventing the collective bargaining process envisioned by the
National Labor Relations Act (NLRA; 29 U.S.C. §§ 158(a)(5)& 159(a)). Case, however,
reads the direct bargaining prohibition far too broadly.
       The NLRA makes it unlawful for a covered employer to “refuse to bargain
collectively with the representatives of his employees.” (29 U.S.C. § 158(a)(5).) Further,
“Representatives designated or selected for the purposes of collective bargaining by the
majority of the employees in a unit appropriate for such purposes, shall be the exclusive
representatives of all the employees in such unit for the purposes of collective bargaining
in respect to rates of pay, wages, hours of employment, or other conditions of
employment . . . .” (29 U.S.C. § 159(a).)
       According to Case, the United States Supreme Court in J.I. Case Co. v. N.L.R.B.
(1944) 321 U.S. 332 [64 S.Ct. 576, 88 L.Ed. 762] (J.I. Case), construed these statutory
requirements as barring an employer from negotiating any contract with an individual
employee represented by a union. The Supreme Court never went as far as Case
suggests.
       While the high court held an employer cannot rely on previously-negotiated
individual employment contracts to defeat collective bargaining, it also “held an
employee’s separate individual contract that is consistent with [a] collective bargaining
agreement may be enforced.” (Willis v. Prime Healthcare Services, Inc. (2014)
231 Cal.App.4th 615, 630–631 [180 Cal.Rptr.3d 397].) The court continued: “We know

                                             14
of nothing to prevent the employee’s, because he is an employee, making any contract
provided it is not inconsistent with a collective agreement or does not amount to or result
from or is not part of an unfair labor practice. But in so doing the employer may not
incidentally exact or obtain any diminution of his own obligation or any increase of those
of employees in the matters covered by collective agreement.” (J.I. Case, supra,
321 U.S. at p. 339.)
       Case offered no evidence the reimbursement feature of the Lerner Program was in
any way inconsistent with the union-negotiated MOU approving the program or any other
collective bargaining agreement covering Case’s employment. (Cf. Code Civ. Proc.,
§ 437c, subd. (p)(1); California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630
[166 Cal.Rptr.3d 38] [burden on defendant to show triable issue as to affirmative
defense].) To the contrary, the MOU expressly authorized a reimbursement agreement
calling for repayment of a portion of the Learner Program costs if a participant left within
30 months of completing it. While the MOU estimated UPI would need to recoup
$46,000 in program costs per participant and the reimbursement agreement Case signed
called for reimbursement of only $30,000, this was not an “inconsistency” and certainly
did not increase any obligation he had under the MOU. And while no party provided a
copy of the exemplar reimbursement agreement attached to the MOU, that, alone, does
not raise a triable issue that the reimbursement agreement was inconsistent with the
MOU.
       4. Consideration
       Case maintains the reimbursement agreement also lacked consideration because
UPI had no obligation to keep Case employed and, thus, no obligation to provide
education, which Case views as “the only possible consideration listed in the
Reimbursement Agreement.” Case’s view of the bargained-for exchange is too
constrained.



                                            15
       On entering the program, Case held a new position of Learner, which meant he
would remain on UPI’s payroll while additionally getting classroom and on-the-job
training, the costs of which UPI would front. While Case was not guaranteed a
promotion, transfer, or continued employment, exactly the same had been true with
respect to his previous position. The exchange, frankly, is obvious: Case got continued
wages and fronted education costs, and UPI got Case’s agreement to repay those costs if
he both completed the training and left the company before it could benefit from the
investment. That either Case or UPI could have terminated the agreement by ending the
employment relationship at some point during the educational program does not render
illusory the parties’ bargained-for exchange—or require us to ignore the substantial
benefits Case obtained every day he spent on the payroll receiving advanced training with
no upfront cost and potentially no cost at all to him.
       5. Unconscionable Contract of Adhesion
       Case asserts the reimbursement agreement was an unconscionable contract of
adhesion primarily because he views the $30,000 value placed on the MTE training as
scandalous in comparison to the cost of tuition and books required for the classroom
component of the program, which could be purchased from the local community college
for approximately $3,000.
       “ ‘ “[T]he doctrine of unconscionability has both a procedural and a substantive
element, the former focusing on oppression or surprise due to unequal bargaining power,
the latter on overly harsh or one-sided results.” ’ ” (Sanchez v. Valencia Holding
Company, LLC (2015) 61 Cal.4th 899, 910 [190 Cal.Rptr.3d 812, 353 P.3d 741]
(Sanchez).) The prevailing view is that both elements of unconscionability must be
present before a court can exercise its discretion to not enforce a contract or clause as
unconscionable. (Ibid.) But both elements need not be present in the same degree.
(Ibid.) “ ‘[T]he more substantively oppressive the contract term, the less evidence of
procedural unconscionability is required to come to the conclusion that the term is

                                             16
unenforceable, and vice versa.’ ” (Peng v. First Republic Bank (2013) 219 Cal.App.4th
1462, 1469 [162 Cal.Rptr.3d 545] (Peng).)
       “ ‘The procedural element of an unconscionable contract generally takes the form
of a contract of adhesion . . . .’ [Citation.] An adhesive contract is defined as ‘ “a
standardized contract, which, imposed and drafted by the party of superior bargaining
strength, relegates to the subscribing party only the opportunity to adhere to the contract
or reject it.” ’ ” (Peng, supra, 219 Cal.App.4th at p. 1469.) “ ‘Where a party with
superior bargaining power has imposed contractual terms on another, courts must
carefully assess claims that one or more of these provisions are one-sided and
unreasonable.’ ” (Ibid.) For a term to be substantively unconscionable, though, it must
be in the universe of being “overly harsh,” “unduly oppressive,” or “so one-sided as to
shock the conscience.” (Sanchez, supra, 61 Cal.4th at pp. 910–911.)
“ ‘[U]nconscionability requires a substantial degree of unfairness beyond “a simple old-
fashioned bad bargain.” ’ ” (Ibid. italics omitted.)
       An “agreement as to price, like any other contract provision, may be found
unconscionable. [Citation.] ‘[I]t is clear that the price term, like any other term in a
contract, may be unconscionable. [Citations.] Allegations that the price exceeds cost or
fair value, standing alone, do not state a cause of action. [Citations.] Instead, plaintiff’s
case will turn upon further allegations and proof setting forth the circumstances of the
transaction. [¶] The courts look to the basis and justification for the price [citation],
including “the price actually being paid by . . . other similarly situated consumers in a
similar transaction.” [Citation.] . . . While it is unlikely that a court would find a price
set by a freely competitive market to be unconscionable [citation], the market price set by
an oligopoly should not be immune from scrutiny. Thus courts consider not only the
market price, but also the cost of the goods or services to the seller [citations], the
inconvenience imposed on the seller [citation], and the true value of the product or



                                              17
service [citation].’ ” (Wayne v. Staples, Inc. (2006) 135 Cal.App.4th 466, 481
[37 Cal.Rptr.3d 544] (Wayne).)
       The reimbursement agreement is not procedurally unconscionable. To begin with,
the MOU (which had estimated the education program’s cost at $46,000 per participant,
rather than the $30,000 ultimately specified in the reimbursement agreement), came into
being following negotiations between UPI and Case’s union, two entities with parity in
bargaining power. (See Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699,
711 [131 Cal.Rptr. 882, 552 P.2d 1178] (Madden) [“Although plaintiff did not engage in
the personal negotiation of the contract’s terms, she and other public employees
benefitted from representation by a board, composed in part of persons elected by the
affected employees, which exerted its bargaining strength to secure medical protection
for employees on more favorable terms than any employee could individually obtain.”].)
       Additionally, the reimbursement terms were no surprise. Not only was Case
aware of them before he ever committed to the program or saw the reimbursement
agreement, the agreement is a single page and the reimbursement obligation is clearly
spelled out. (See Wayne, supra, 135 Cal.App.4th at pp. 481–482 [clear disclosure of
disputed term weighs against procedural unconscionability].)
       There were also other realistic options for obtaining an MTE position—taking and
passing the test, without further study or with self-directed study and participation in
community college classes. (Madden, supra, 17 Cal.3d at p. 711 [“In many cases of
adhesion contracts, the weaker party lacks not only the opportunity to bargain but also
any realistic opportunity to look elsewhere for a more favorable contract . . . . Plaintiff,
on the other hand, enjoyed the opportunity to select from among several medical plans
negotiated and offered by the board, some of which did not include arbitration provisions,
or to contract individually for medical care.”]; Morris v. Redwood Empire Bancorp
(2005) 128 Cal.App.4th 1305, 1320 [27 Cal.Rptr.3d 797] [procedural unconscionability
may be defeated by availability of meaningful choice].)

                                             18
       And finally, Case was not contracting for necessities, but for an optional,
advanced educational program. (See Ibid.)
       Because there was no procedural unconscionability here, we need not even
consider substantive unconscionability.
       Even if we did, we would conclude the reimbursement agreement is also not
substantively unconscionable. There is not a shred of evidence the union was somehow
colluding with UPI to gouge employees by estimating the cost of the Learning Program at
$46,000 per participant. Rather, all the evidence indicates this was a reasonable estimate
for the three-year program. Compared with the initial estimated cost, Case’s obligation
to reimburse up to $30,000 was eminently reasonable. Although Case disputed the
necessity and reality of some of the more than $500,000 in costs UPI enumerated for the
Learner Program, it cannot be disputed UPI’s investment in Case and the other
participants went well beyond providing the $3,000 in tuition and books for classroom
instruction, which accounted for only one-third of total training time. Case’s focus on
those academic costs is therefore unavailing. There also was no evidence UPI “over-
reported” expenditures because some purchased items were ultimately “donated” to the
community college so it could carry out a portion of UPI’s training. Whether ultimately
donated or not, these were costs UPI incurred in establishing and conducting the
program.
       In sum, there is no evidence the nearly three-year Learner Program was
improperly valued, let alone so misvalued as to render the reimbursement agreement
substantively unconscionable. (See Wayne, supra, 135 Cal.App.4th at pp. 482–483 [price
must shock the conscious, not merely be unreasonable].)
       6. Taking of Wages Under Section 221, 222 and 223
       Finally, Case asserts the $28,000 reimbursement UPI seeks is an unlawful
garnishment or withholding of “wages” under sections 221, 222, and 223. However,
section 221, 222, and 223 “address proper payment of wages, an issue not contemplated

                                            19
by [an] agreement to repay . . . for training expenses.” (Hassey, supra, 163 Cal.App.4th
at p. 1490.)
          Case nonetheless asserts he had valid wage claims because UPI’s initial
complaints sought to recoup wages. They did not. True, paragraph 7 in both the original
and first amended complaints stated each employee in the Learner Program represented
an investment of approximately $150,000, including wages, benefits, and training
expenses for the 135-week program. (1 AA 2, 6.) But the complaints only sought
$28,000 in training costs under the reimbursement agreement. (1 AA 2, 6.) Thus, while
the complaints may have referenced wages paid to Case, they in no way alleged any part
of the $28,000 sought was “wages” under any provision of the Labor Code.
B. Attorney Fees
          After prevailing on its summary judgment motion, UPI sought attorney fees under
section 218.5 because it had prevailed on three Labor Code wage claims—taking wages
(§ 221), withholding wages (§ 222), and reducing wages (§ 223)—raised in Case’s first
amended cross-complaint. Applying the version of section 218.5 in effect at the time of
the summary judgment, the court awarded UPI fees, but only half the amount it had
requested. Case does not challenge the amount of fees awarded ($80,000), but contends a
newer version of the statute applied, and under it, UPI is not entitled to any fee award.
We agree the newer version of the statute applies and remand for further proceedings.
          1. The New Version of Section 218.5 Governs This Case
          Section 218.5, with certain exceptions not relevant here, governs the award of
attorney fees in “any action brought for the nonpayment of wages, fringe benefits, or
health and welfare or pension fund contributions.” (§ 218.5, subd. (a).) In such actions,
“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.”
(Ibid.)



                                              20
       Prior to 2014, section 218.5 did not distinguish between prevailing employers and
employees. It was a true “two way” fee shifting statute that awarded fees to the winner,
whether employee or employer. (Kirby v. Immoos Fire Protection, Inc. (2012) 53 Cal.4th
1244, 1248 [140 Cal.Rptr.3d 173, 274 P.3d 1160].) An amendment to section 218.5,
effective January 1, 2014, changed this. Now, if an employer defeats an employee’s
wage action, “attorney’s fees and costs shall be awarded . . . only if the court finds that
the employee brought the court action in bad faith.” (§ 218.5; Stats. 2013, ch. 142
(S.B.462), § 1.)
       Case asserts the trial court should have applied the new version of section 218.5
since it did not rule on UPI’s fee motion until after its effective date. He thus contends
the court erred in failing to determine whether he brought his wage cross-claims in “bad
faith.” He further contends the record does not show bad faith as a matter of law and
therefore UPI is not entitled to any fee award. UPI maintains, in turn, that the new
version of section 218.5 cannot be applied retroactively and thus does not apply to this
lawsuit. In its view, since Case has not challenged the amount of fees awarded, the fee
award should be affirmed.
       The general rule is that absent a clear, contrary indication of legislative intent, we
interpret statutes to apply prospectively. (Quarry v. Doe I (2012) 53 Cal.4th 945, 955
[139 Cal.Rptr.3d 3, 272 P.3d 977] (Quarry).) In other words, when construing statutes,
we presume they do not apply retroactively unless the Legislature has said otherwise
expressly or unmistakably. (Ibid.) Numerous general statutory provisions are considered
to codify or relate to this general rule. (Evangelatos v. Superior Court (1988) 44 Cal.3d
1188, 1207–1208 [246 Cal.Rptr. 629, 783 P.2d 585] (Evangelatos), citing Civ. Code, § 3
[“[n]o part of [this Code] is retroactive, unless expressly so declared.”]; Code Civ. Proc.,
§ 3 [“[n]o part of [this Code] is retroactive, unless expressly so declared.”]; Lab Code,
§ 4[“No action or proceeding commenced before this code takes effect, and no right



                                             21
accrued, is affected by the provisions of this code, but all procedure thereafter taken
therein shall conform to the provisions of this code so far as possible.”].)
        But this general rule and these statutes, while seemingly straightforward, do not
address the question of whether a statute, as applied, should be viewed as having only a
benign “prospective” effect or a possibly troubling “retroactive” effect. (Quarry, supra,
53 Cal.4th at p. 955; Evangelatos, supra, 44 Cal.3d at pp. 1205–1206 [concluding statute,
if applied, would have retroactive effect]; id. at pp. 1207–1208 [next concluding, under
general rule, statute should not be interpreted to be retroactive, and so not deciding
whether the effect would be constitutional]; Wood v. McGovern (1985) 167 Cal.App.3d
772, 775–776, fn. 6 [213 Cal.Rptr. 498] (Wood) [section 3 of the Civil Code does not
answer whether provision under that code might have retroactive effect].)
        Whether a statute has “prospective” or “retroactive” effect is not easily
determined. (See Quarry, supra, 53 Cal.4th at p. 955; Californians For Disability Rights
v. Mervyn’s, LLC (2006) 39 Cal.4th 223, 230 [46 Cal.Rptr.3d 57, 138 P.3d 207].) Courts
are to consider the nature and extent of the change the statute brings about, and the
relationship between the new rule of law and the relevant past events subject to the rule.
They are also to take into account fair notice to, reasonable reliance by, and settled
expectations of those subject to the new rule. (Quarry, supra, 53 Cal.4th at pp. 955–
956.)
        Generally, “a law has a retroactive effect when it functions to ‘ “ ‘change[] the
legal consequences of past conduct by imposing new or different liabilities based upon
such conduct.’ ” ’ ” (Quarry, supra, 53 Cal.4th at p. 956.) If preexisting rights or
obligations are substantially affected, then application of a statute to preenactment
conduct is retroactive and forbidden, absent an express legislative intent to permit such
retroactive application. If preexisting rights are not so affected, then application of a
statute to preenactment conduct is prospective and therefore permitted. (Elsner v. Uveges
(2004) 34 Cal.4th 915, 937 [22 Cal.Rptr.3d 530, 102 P.3d 915] (Elsner).)

                                             22
       “Changes to the law, however, are not necessarily considered retroactive even if
their application ‘involve[s] the evaluation of civil or criminal conduct occurring before
enactment.’ ” (Quarry, supra, 53 Cal.4th at p. 956.) For instance, changes to rules
governing pending litigation, such as those changing procedures to be followed or
applicable evidentiary rules, “frequently have been designated as prospective, because
they affect the future; that is, the future proceedings in a trial. The prospective label
applies even though the trial concerns conduct that occurred prior to the enactment of the
new law.” (Ibid.; Elsner, supra, 34 Cal.4th at p. 937.) At bottom, we look to the
function, not the form, or the new statute. (Elsner, at pp. 936–937.)
       Looking at the legislation amending section 218.5, we discern no expressed intent,
one way or the other, as to its retroactivity. Accordingly, we must consider whether the
amendment actually has retroactive effect and thus is inconsistent with the presumption
favoring prospective application.
       Under the general retroactivity principles just recited, legislation changing when
attorney fees are available could readily be said to change the legal consequences of past
conduct and substantially affect preexisting rights and obligations. Certainly, a litigant
suddenly deprived of a potentially large fee award, or conversely facing such an award,
would view its rights and obligations as substantially modified. Viewed as such, the new
legislation, absent clear legislative intent to the contrary, would apply only prospectively.
       And this is the view federal courts, including the United States Supreme Court,
have taken when considering federal fee statutes. For instance, in Martin v. Hadix (1999)
527 U.S. 343, 349–350 [119 S.Ct. 1998, 144 L.Ed.2d 347] (Martin), the Supreme Court
considered the applicability of a newly enacted fee cap in the Prison Litigation Reform
Act of 1995 (PLRA; 42 U.S.C. § 1997e(d)(3)). Prior to the legislation, prisoners’
attorneys were receiving $150 per hour pursuant to court orders under another statute,
title 42 United States Code section 1988. The PLRA reduced this rate. The high court
ruled the attorneys were entitled to recover the higher amount for pre-PLRA work—they

                                              23
had reasonably relied on the $150 rate, and to apply the PLRA to pre-enactment work
would unfairly attach new legal consequences to completed conduct and upset the
parties’ expectations. (Id. at pp. 349, 358–360.)
       In Summers v. Department of Justice (D.C. Cir. 2009) 569 F.3d 500, 503
(Summers), the Court of Appeals considered a 2007 statute expanding the recoverability
of fees against the government under the Freedom of Information Act. Prior to the new
legislation, fees were not recoverable where there was a settlement; afterwards, a
settlement that resulted in a change of an agency’s position could, under some
circumstances, support a fee award. (Id. at p. 503.) The circuit court concluded the new
statute, if applied to a pending case that had been settled on the merits, would improperly
expose the government to fees based on “past conduct.” (Summers, at p. 503.) The
government’s decision whether to litigate or settle such a case likely depended on an
assumption attorney fees would not be available in connection with a settlement. (Ibid.)
And there was no reason for the government to have foreseen the subsequent statutory
change. (Id. at p. 504.)
       Indeed, California federal courts, applying federal law, have refused to apply the
new version of section 218.5 at issue here to pending cases. (Johnson v. Hewlett-
Packard Co. (N.D. Cal. Mar. 10, 2014, No. C 09-03596 CRB) 2014 WL 988824, at * 5–
*6; Johnson v. Hewlett-Packard Co. (9th Cir. July 8, 2014, No. 11-17062) 2014 WL
5280490, at *1.)
       While UPI, in defending the trial court’s application of the older version of
section 218.5, puts great reliance on Martin, the statute is, obviously, a California law,
not a federal one. And while California courts generally apply the same framework as
federal courts to retroactivity questions (Myers v. Philip Morris Companies, Inc. (2002)
28 Cal.4th 828, 841 [123 Cal.Rptr.2d 40, 50 P.3d 751]), it is for California courts, alone,
to interpret California statutes, and thus to determine whether those statutes result in or
should be given retroactive effect. (See Butt v. State of California (1992) 4 Cal.4th 668,

                                             24
707 [15 Cal.Rptr.2d 480, 842 P.2d 1240] [United States Supreme Court opinion not
binding on state law issue]; People v. Guiton (1993) 4 Cal.4th 1116, 1126
[17 Cal.Rptr.2d 365, 847 P.2d 45] [same]; Schmidlin v. City of Palo Alto (2007)
157 Cal.App.4th 728, 760 [69 Cal.Rptr.3d 365] [declining to follow mistaken federal
court construction of state statute].)
       Our Supreme Court and the great majority of our lower appellate courts have
viewed the question of retroactivity of fee and cost eligibility statutes differently than the
federal courts. Fee and cost eligibility statutes, in the language of Quarry, are a “special
category within the general topic of the prospective or retroactive application of statutes”
subject to an “extensive line of authority.” (Quarry, supra, 53 Cal.4th at p. 956 [noting
limitations statutes are such a “special category”].)
       This line commences with Stockton Theatres, Inc. v. Palermo (1956) 47 Cal.2d
469, 477 [304 P.2d 7] (Palermo). In Palermo, an appeal was taken and a surety bond
posted in June 1951. Three months later, a statute took effect which allowed a prevailing
party to recover as a litigation cost the premium on a surety bond. When the trial court
ruled on costs in 1953, it denied recovery of the premium. The Supreme Court reversed
and remanded, holding the new statute should have applied, even though the bond had
been posted before the new statute took effect. A rule governing costs, even one already
incurred, can, ruled the court, be changed during the pendency of a proceeding. (Ibid.)
       Subsequently, in Woodland Hills Residents Assn., Inc. v. City Council (1979)
23 Cal.3d 917, 925 [154 Cal.Rptr.3d 503, 593 P.2d 200] (Woodland Hills), the high court
ruled on the applicability of then newly enacted Code of Civil Procedure section 1021.5,
authorizing fees for prevailing plaintiffs who enforce an important public right. Just
months before the statute’s effective date, the court, in Serrano v. Priest (1977) 20 Cal.3d
25 [141 Cal.Rptr. 315, 569 P.2d 1303], had recognized the courts’ inherent equitable
authority to award fees to a public interest litigant vindicating a constitutional right, but
had expressly left undecided whether fees could similarly be granted for vindicating a

                                              25
statutory right. (Id. at pp. 924–925, 929.) The issue in Woodland Hills was whether fees
were recoverable under Code of Civil Procedure section 1021.5 in a “statutory” right
case, even though the order denying fees had already been rendered and was pending on
appeal when the new fee statute took effect. (Woodland Hills, supra, at pp. 925–926,
929.)
        Woodland Hills concluded the new fee statute was applicable. “Although [Code
of Civil Procedure] section 1021.5 was not on the books at the time the trial court denied
plaintiffs’ motion for attorney fees, the governing authorities establish that the new
statute nonetheless applies to this proceeding, which was pending on appeal at the time
the legislative enactment became effective.” (Woodland Hills, supra, 23 Cal.3d at
p. 931.) Among these governing authorities were Bradley v. Richmond School Board
(1974) 416 U.S. 696 [94 S.Ct. 2006, 40 L.Ed.2d 476] (Bradley), a case applying a newly-
enacted federal fee statute to a pending case. The California Supreme Court viewed
Bradley as “anchored . . . on the principle that a court is to apply the law in effect at the
time it renders its decision, unless doing so would result in manifest injustice or there is
statutory direction or legislative history to the contrary.” (Woodland Hills, at p. 931.)6
        The Woodland Hills court also favorably cited two California Court of Appeal
cases, Olson v. Hickman (1972) 25 Cal.App.3d 920 [102 Cal.Rptr. 248] (Olson) and
Kievlan v. Dahlberg Electronics (1978) 78 Cal.App.3d 951 [144 Cal.Rptr. 585]
(Kievlan). Olson considered Government Code section 800, permitting an attorney fee
award in challenges to “arbitrary or capricious” government agency actions. (Olson,

        6
          Bradley could have been read more narrowly—as holding that a new fee statute
applies only when fees are already recoverable under another theory, such as when a
statute codifies an existing equitable doctrine. (See Martin, supra, 527 U.S. at pp. 359–
360.) Further, in Bradley, the United States Supreme Court recognized a distinct, non-
statutory basis for fees, while the California Supreme Court in Woodland Hills expressly
declined to consider whether there was any basis for awarding fees other than the new fee
statute. (Bradley, supra, 416 U.S. at pp. 720–721; Woodland Hills, supra, 23 Cal.3d at
p. 930.)


                                              26
supra, 25 Cal.App.3d at pp. 922–923.) The provision was enacted after briefing was
complete on a challenger’s merits appeal. After the challenger secured a reversal, but
before the appellate decision became final, he asked the appellate court to award fees.
(Id. at pp. 921–922.) The court did so, invoking the rule that a “lawsuit is governed by a
change in procedural rules made during its pendency, and the suit is pending until its final
determination on appeal.” (Id. at p. 922.) Kievlan applied the same rationale—that the
statute was a “procedural” rule—to Code of Civil Procedure section 1021.5, and thus
held it applied to pending cases. (Kievlan, supra, 78 Cal.App.3d at p. 959.)
       For decades, the courts of appeal have cited Palermo, Woodland Hills, or both, for
the proposition that they “authoritatively held” that in the absence of express Legislative
intent to the contrary, “a new statute authorizing an award of attorney fees” or a statute
“increasing or decreasing litigation costs, including attorneys’ fees” applies to actions
pending at the time of enactment. (California Housing Finance Agency v. E.R. Fairway
Associates I (1995) 37 Cal.App.4th 1508, 1512–1513 [44 Cal.Rptr.2d 591] [Health and
Safety Code section 51205, amended during trial to provide for an award of attorney fees
and costs to the prevailing party, applied.]; American Airlines, Inc. v. Sheppard, Mullin,
Richter & Hampton (2002) 96 Cal.App.4th 1017, 1056–1057 [117 Cal.Rptr.2d 685]
[most recent version of Code of Civil Procedure section 998, amended during appeal,
governed award of expert fees in case]; Heritage Engineering Const., Inc. v. City of
Industry (1998) 65 Cal.App.4th 1435, 1439 [77 Cal.Rptr.2d 459] [applying the then-
current version of Code of Civil Procedure section 998 to the case, which was pending on
appeal when the 1997 amendment took effect]; Mir v. Charter Suburban Hospital (1994)
27 Cal.App.4th 1471, 1477–1478 [33 Cal.Rptr.2d 243] [Business and Professions Code
section 809.9, which took effect after trial court judgment became final, allowed for
award of fees incurred both before and after effective date of statute]; ARA Living
Centers-Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556, 1562
[23 Cal.Rptr.2d 224] [Welfare and Institutions Code section 15657, amended during trial

                                             27
court proceedings to allow fees in elder abuse cases, applied]; Wood v. McGovern (1985)
167 Cal.App.3d 772, 774–776 [213 Cal.Rptr. 498] [Code of Civil Procedure
section 1021.4, allowing fees against defendant who is convicted of a felony for the
conduct giving rise to the civil suit, applies to suits pending when it became effective].)
       In sum, the California Supreme Court and many, many courts of appeal have
treated legislation affecting the recovery of costs, including attorney fees, as addressing a
“procedural” matter that is “prospective” in character and thus not at odds with the
general presumption against retroactivity.
       Nevertheless, there is not total unanimity on this score. In Andreini & Company v.
MacCorkle Ins. Service, Inc. (2013) 219 Cal.App.4th 1396 [62 Cal.Rptr.3d 555]
(Andreini), the Court of Appeal considered an amendment to California Rules of Court,
rule 8.278(d)(1)(G), allowing the recovery of “ ‘fees and net interest expenses incurred to
borrow funds to provide security for [a] bond or to obtain a letter of credit.’ ” (Andreini,
at p. 1405, italics omitted.) Focusing on the burden the amended rule would impose—
“Andreini’s liability for MacCorkle’s costs would zoom from $6,553.12 to
$221,324.52”—the court concluded it “would clearly qualify as ‘ “ ‘ “new or different
liabilit[y],’ ” ’ ” or a “substantial change” in legal consequences, as understood under
general principles of retroactivity. (Id. at p. 1406.) However, Andreini does not
acknowledge, let alone discuss, Palermo or Woodland or the line of appellate court cases
following those decisions.7

       7
          The same can be said of City of Monte Sereno v. Padgett (2007)
149 Cal.App.4th 1530, 1539–1540 [58 Cal.Rptr.3d 218], which declined to retroactively
apply a city’s new fee ordinance after the previous version was invalidated. Miller v.
Givens (1994) 30 Cal.App.4th 18 [37 Cal.Rptr.2d 1] (Miller), which UPI cites as holding
a fee statute should not be applied to award fees incurred prior to its enactment, actually
considered an easier question: “The only question presented to us by the parties is
whether an award for fees incurred after the effective date of the amendment constitutes a
retroactive application.” (Id. at p. 21, italics added.) Miller is therefore unhelpful.
Weinholz v. Kaiser Foundation Hospitals (1989) 217 Cal.App.3d 1501, 1503–1507
[267 Cal.Rptr. 1] is also distinguishable. There, the Court of Appeal considered which

                                             28
        “Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction
are required to follow decisions of courts exercising superior jurisdiction.” (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Being bound by Palermo and
Woodland Hills, we conclude the new version of section 218.5 provides the proper
criteria for assessing fee entitlement in this case.
       Accordingly, the order awarding attorney fees is reversed. Should UPI choose to
pursue fees on remand, it shall be for the trial court to make the findings relevant to
whether Case brought his cross-complaint in “bad faith.” (§ 218.5, subd. (a); see, e.g.,
Corbett v. Hayward Dodge, Inc. (2004) 119 Cal.App.4th 915, 923–924 [14 Cal.Rptr.3d
741] [discussing what constitutes a plaintiff’s bad faith prosecution under the similarly-
worded CLRA8 fee statute].)
       2. PAGA Does Not Apply
       Case argues reversal of the fee award can also be predicated on his prayer for
relief in his cross-complaint for civil penalties under PAGA. His reasoning appears to be
as follows: PAGA provides a one-way fee shifting statute, benefitting only prevailing
employees. (§ 2699, subd. (g)(1).) Because he included a request for civil penalties in
his prayer for relief, he properly advanced a PAGA claim. PAGA’s fee statute should
control over section 218.5, regardless of which version of the latter statute might
otherwise apply to this case.
       We do not agree, however, that Case properly pleaded a PAGA claim. His cross-
complaint sets forth no separate PAGA cause of action, does not allege compliance with


version of contingency fee limits should control: those in place at the time the client
entered the contingency fee agreement or those which took affect later during the
litigation. The court applied the earlier version to protect the parties’ contract
expectations. It acknowledged Woodland Hills, but concluded it was applicable to
statutory fees when there “was no possible contract impairment.” (Weinholz, at p. 1507.)
Here, Woodland Hills not Weinholz, is the applicable precedent.
        8
          Consumer Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.).


                                              29
or even reference PAGA’s exhaustion requirements (§ 2699.3), does not specify which
alleged Labor Code violations underlie the supposed PAGA claim, and to the extent it
alleges a representative class action, does so under the traditional rubric of Code of Civil
Procedure section 382. In fact, had Case pleaded a PAGA cause of action with such
defects, it would have been subject to a demurrer or motion to strike. (See Caliber
Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 382, 385 [36 Cal.Rptr.3d
31] (Caliber Bodyworks).) Moreover, plainly neither party viewed the cross-complaint as
stating any such claim, since neither UPI’s summary judgment papers nor Case’s
opposition ever mentioned PAGA or presented any evidence related to other employees’
potential claims. It therefore is no surprise the trial court’s summary judgment order does
not reference PAGA either.
       We therefore conclude the naked, one-line request in Case’s prayer for relief for
PAGA remedies does not constitute a PAGA claim that could even arguably make the
PAGA fee statute applicable. (See Caliber Bodyworks, supra, 134 Cal.App.4th at p. 385
[ordering prayer for PAGA penalties struck when compliance with PAGA requirements
not alleged].) Thus, we need not analyze Case’s PAGA argument further.
                                     IV. DISPOSITION
       The summary judgment in favor of UPI is affirmed. The order awarding UPI
attorney fees is reversed and the matter remanded for the trial court to consider, if UPI
makes a timely fee motion, UPI’s entitlement to fees under the current version of
section 218.5. The parties shall bear their own costs on these appeals.




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                                             _________________________
                                             Banke, J.


We concur:


_________________________
Humes, P. J.


_________________________
Dondero, J.




A140457, USS-Posco Industries v. Case
A142145, USS-Posco Industries v. Case




                                        31
Trial Court:                             Contra Costa County Superior Court

Trial Judge:                             Honorable Steven K. Austin

Greenan, Peffer, Sallander & Lally, Robert L. Sallander, Jr., Kyle G. Kunst; Cory
Stephen Anderson for Respondent.

The Law Offices of Jon Webster, Jon Paul Webster and James A. Arcellana for
Appellant.




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