                                                                             FILED
                            NOT FOR PUBLICATION                               JUL 24 2012

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



BEN LOPEZ,                                        No. 11-15017

              Plaintiff - Appellee,               D.C. No. 3:08-cv-05396-SI

  v.
                                                  MEMORANDUM *
UNITED PARCEL SERVICE, INC.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                              Submitted July 24, 2012 **
                              San Francisco, California

Before: NOONAN, McKEOWN, and M. SMITH, Circuit Judges.

       United Parcel Service, Inc. (UPS) appeals the district court’s denial of its

request for attorney’s fees. We affirm. Because the parties are familiar with the

factual history of this case, we need not recount it here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      UPS seeks attorney’s fees for its successful defense of Ben Lopez’s claim,

pursuant to California Labor Code § 226.7, for compensation related to overtime

and meal and rest periods. California Labor Code § 218.5(a) creates a fee-shifting

regime in “any action brought for the nonpayment of wages” but, by its terms,

“does not apply to any action for which attorney’s fees are recoverable under [Cal.

Labor Code §] 1194.” California Labor Code § 1194(a) states that only a

prevailing employee may recover fees in an action for nonpayment of overtime

compensation. In Kirby v. Immoos Fire Protection, Inc., the California Supreme

Court held that “neither section 1194 nor section 218.5 authorizes an award of

attorney’s fees to a party that prevails on a section 226.7 claim.” 274 P.3d 1160,

1162 (Cal. 2012). We therefore affirm the district court’s decision with respect to

fees associated with UPS’s defense of Lopez’s § 226.7 claim.1

      UPS also claims the district court abused its discretion by refusing to award

attorney’s fees associated with its assertion of the Motor Carrier Act (MCA)

defense against Lopez’s other claims. Because the MCA was invoked as a defense

in an action implicating a unilateral fee-shifting provision, attorney’s fees are

warranted only where the issues are separable. See Turner v. Ass’n of Am. Medical

Colleges, 193 Cal. App. 4th 1047, 1073 (2011) (defendant is not foreclosed from


      1
          Both of UPS’s motions for judicial notice are denied as moot.

                                           2
seeking an attorney’s fee award “for hours that it can show were not intertwined

with defense of a cause of action with a unilateral fee-shifting provision”).

Whether Lopez was entitled to “straight-time” wages under the MCA for overtime

hours worked requires a threshold determination of whether Lopez in fact worked

overtime hours. The district court therefore did not abuse its discretion in failing to

apportion fees.

      AFFIRMED.




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