Filed 11/22/13 Jiang v. Wang CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


ZHI CAI JIANG,
         Plaintiff and Respondent,
                                                                     A136974
v.
SUO SHAN WANG et al.,                                                (Alameda County
                                                                     Super. Ct. No. FG-11-587898)
         Defendants and Appellants.


         Following a two-day bench trial, the court entered a judgment awarding plaintiff
Zhi Cai Jiang $7,677.12 for unpaid overtime wages and $4,000 for a violation of Labor
Code section 226 by his former employers, defendants Tsuo Shan Wang and Palace Chef
restaurant (collectively “defendants”). On the “Business Defamation” cause of action
alleged in Palace Chef’s cross-complaint, the court awarded damages of $10. The court
then awarded Jiang “reasonable statutory attorney fees in the amount of $33,180.”
Defendants appeal from the judgment and the fee order. They contend: (1) the court
“incorrectly calculated” the amount of overtime wages due Jiang; (2) the court also
“incorrectly applied” Labor Code section 226; (3) the court “abused its discretion in
finding a lack of proof with regards to Wang’s assault and battery claims”; (4) the amount
of attorney fees awarded to Jiang was “unreasonable”; and (5) because they prevailed on
their claim for business defamation, they were entitled to attorney fees and punitive
damages. We conclude none of these claims has merit, and we affirm.




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                                      BACKGROUND
       The judgment recites that the trial court “heard testimony and considered evidence
submitted by the parties” at the two-day bench trial. Wang and Palace Chef have not
included a reporter’s transcript of the trial. In light of this decision, we must treat their
appeal as an appeal “on the judgment roll.” (Allen v. Toten (1985) 172 Cal.App.3d 1079,
1082-1083.) “On such an appeal, ‘[t]he question of the sufficiency of the evidence to
support the findings is not open.’ ” (Id. at p. 1082.) Instead, we presume that all findings
by the trial court are supported by substantial evidence, and we can only consider
whether the judgment is supported by the findings or whether reversible error appears on
the face of the record. (Fitch v. Pacific Fid. Life Ins. Co. (1975) 54 Cal.App.3d 140, 143,
fn. 1 [“This appeal is based upon only the clerk’s transcript and, as such, is considered to
be on the judgment roll alone. [Citation.] Hence the trial court’s findings and
conclusions of law are presumed to be supported by substantial evidence and are binding
upon us, unless the judgment is not supported by the findings or reversible error appears
on the face of the record.”].) “ ‘In a judgment roll appeal every presumption is in favor
of the validity of the judgment and any condition of facts consistent with its validity will
be presumed to have existed rather than one which will defeat it.’ ” (Estate of
Kievernagel (2008) 166 Cal.App.4th 1024, 1031.)
       To judge by certain recitals in subsequent documents, at the end of the two-day
trial the court made a number of findings concerning the weekly number of hours Jiang
worked (i.e., 49.5), and (quoting from plaintiff’s posttrial brief) “invited briefing on the
implication of these factual findings to the issue of damages.” Aided with that briefing,
the court then filed its statement of decision.
       On the two causes of action which it determined in Jiang’s favor, the court’s
statement of decision reads as follows:
       “The court finds that Plaintiff actually worked 8-1/4 hours five days a week and
worked 7-3/4 hours on a sixth day of each week. Plaintiff was paid a ‘salary’ of
$1700 per month and was paid on a semi-monthly basis. Plaintiff’s salary computes to a
total of $392.31 per week and computes to $8.01 per hour. . . .


                                               2
       “Second Cause of Action
       “The Court finds that the plaintiff is entitled to an award for defendants’ failure to
pay overtime wages to plaintiff for hours worked in excess of eight hours per day or the
excess of forty hours per week. (See Labor Code § 510.) The amount of uncompensated
overtime wages computed as follows:
       “($1700 X 12)     52=$9.81
       40

       “(1.5 X $7.81) - $8.01 = $6.71 per hour OT differential
       “9 hours/week X $6.71 X 104 weeks = $6,280.56
       “Interest, accumulating on a semimonthly basis, since July 31, 3009 computes to
an interest award on the overtime wages of $1,396.56, this results in an award to plaintiff
on the second cause of action in the amount of $7,677.12. [¶] . . .[¶]
       “Fifth Cause of Action
       “The court finds the defendants did not keep records of the plaintiff’s wages and
hours. The defendants’ evidence does not persuade the court that the defendants were
unintentional or not knowing in such failure. The fact that the plaintiff is an illegal alien
who insists on payment of wages in cash does not excuse an employer from the
obligations found in Labor Code § 226. Plaintiff is awarded the sum of $4000.00 on this
cause of action.”
       Turning to the cross-complaint, the court determined as follows as to Palace
Chef’s second cause of action:
       “On the ‘Business Defamation’ cause of action, the evidence is clear that the
plaintiff knowingly made false statements regarding the Palace Chef Restaurant and that
there was damage to the cross-complainant caused by such false statements. The
cross-complainant did not, however, demonstrate any liquidated amount of loss or other
way to evaluate damages; the court awards the nominal damage amount of $10.00 to the
cross-complainant on this cause of action.”
       Later the court issued its ruling on attorney fees as follows: “Plaintiff Zhi Cai
Jiang’s Motion for Attorney Fees is GRANTED. As the prevailing party in this action,


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the plaintiff is awarded reasonable statutory attorney fees in the amount of $33,180. (See
Cal. Labor Code sections 1194(a) and 226(c). All hours expended by plaintiff’s counsel
for litigation in this matter are reasonable as are counsel's hourly rates.”
                                            REVIEW
       We first address those contentions that are most directly impacted by the
limitations of this judgment roll appeal.
                      Wang’s Assault and Battery Claims Are Not
                         Demonstrated As A Matter Of Law

       Defendants’ opening brief states that Wang “alleged an assault and battery on
Plaintiff Jiang. In proving this cause of action, Wang lined up three different witnesses to
testify on his behalf. Each would help to prove that Jiang did indeed assault and batter
Mr. Wang. In addition, Wang and his witnesses, including staff and customers,
consistently testified that Jiang was a heavy smoker; did not wash his hands after
returning from smoking; coughed toward the dishes; stomped his foot with a dirty shoe
into the cut beef; and yelled and attacked Mr. Wang. Even with all of this evidence, the
judge himself testified at the end of the trial that ‘I’ve been observing Mr. Jiang through
the trial and I did not see him cough at all.’ Based on this statement and his observation,
he discredited the witnesses’ testimonies on the events. [¶] The judge abused his
discretion here in finding against the Cross-Complaint. . . . The trial court judge failed in
his duties to correctly evaluate the weight of the witnesses in this case. . . . [¶] Therefore,
proper weight was not given to the witnesses for the Cross-Complaint and the trial judge
abused his discretion in failing to acknowledge their importance to the case.”
       The most obvious defect in this reasoning is that substantial evidence is not
measured by the number of witnesses testifying for, or against, a given point. (People v.
Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 & fn. 8; Nichols v. Pacific Electric Ry. Co.
(1918) 178 Cal. 630, 631-632; Fowden v. Pacific Coast Steamship Co. (1906) 149 Cal.
151, 161.) Thus, the principle in Evidence Code section 412 that “the direct evidence of
one witness . . . is sufficient for proof of any fact.” “Witnesses are not counted, but rather
their testimony is weighed.” (Shannon v. Mt. Eden Nursery Co. Inc. (1933) 134 Cal.App.


                                               4
591, 592.) And it is the trier of fact, in this case the trial judge, who does the weighing,
not this court. The same is true for which witnesses are to be found credible. “A
reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.”
(People v. Lindberg (2008) 45 Cal.4th 1, 27.) Even if this court were authorized to
reweigh or reevaluate witness credibility, the absence of a reporter’s transcript would
make such an inquiry impossible.
                         The Trial Court Did Not “Incorrectly”
                            Apply Labor Code Section 226

       Defendants’ contention on this point is based on an admission by defendants that is
breathtaking in its audacity—not to mention its abject disregard of the applicable law,
which is not even mentioned in defendants’ opening brief. (See Batt v. City and County
of San Francisco (2007) 155 Cal.App.4th 65, 82-83, fn. 9.) They argue that because
Jiang is “an illegal immigrant” who wanted to be paid in cash, a desire in which they
concurred for more than seven years, all parties were “involved in an illegal contract,” the
claimed upshot of which is that “Defendants cannot be liable under § 226.” As the trial
court recognized, this reasoning is faulty.
       In 2002, the Legislature enacted Civil Code section 3339, Government Code
section 7285, and Labor Code section 1171.5, each of which declare California public
policy that “a person’s immigration status is irrelevant” to the application and
enforcement of “state labor . . . laws.” (Stats. 2002, ch. 1071.) “These statutes leave no
room for doubt about this state’s public policy with regard to the irrelevance of
immigration status in enforcement of state labor, employment, civil rights, and employee
housing laws. Thus, if an employer hires an undocumented worker, the employer will
also bear the burden of complying with the state’s wage, hour and workers’ compensation
laws.” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460.)
       Defendants next argue that “In all tort action[s], the Plaintiff owes a duty to the
tortfeasor to mitigate damages,” and, because Jiang failed to do so, “he has lost the right
to argue a violation under Lab. Code § 226.” This was not a tort claim, but a statutory
one. Moreover, this court recently held that “It is the employer’s burden ‘to affirmatively


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prove failure to mitigate as an affirmative defense.’ ” (Mize-Kurzman v. Marin
Community College Dist. (2012) 202 Cal.App.4th 832, 871.) The record on appeal does
not include defendants’ answer, so it cannot be assumed that they even raised this
affirmative defense. Finally, even if they did raise it, “the question whether an injured
party acted reasonably to mitigate damages is a matter to be determined by the trier of
fact and that the scope of review on appeal is circumscribed by the ‘any substantial
evidence rule.’ [Citations.]” (Green v. Smith (1968) 261 Cal.App.2d 392, 397,
fn. omitted.) On this limited record, defendants cannot establish that substantial evidence
is lacking. (Allen v. Toten, supra, 172 Cal.App.3d 1079, 1082.)
       The same is true of defendants’ argument that the applicable statute of limitations
had expired. (See JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1526
[“the statute of limitations . . . can be waived if not asserted as an affirmative defense and
proven”].)
        Although They Prevailed On Their Claim for ‘Business Defamation,’
        Defendants Are Not Entitled To Attorney Fees And Punitive Damages

       Defendants next claim that because they were awarded compensatory damages on
their claim for “business defamation,” the trial court erred in not following through by
awarding attorney fees and punitive damages. Defendants are wrong.
       That the court awarded defendants the “nominal” damages of $10 does not
necessarily demonstrate that they satisfied the statutory standard for punitive damages,
proving “by clear and convincing evidence” that Jiang was “guilty of oppression, fraud,
or malice.” (Civ. Code, § 3294, subd. (a); see Miller v. Elite Ins. Co. (1980)
100 Cal.App.3d 739, 759.) “Exemplary or punitive damages are not recoverable as a
matter of right. Their allowance rests entirely within the discretion of the jury,” or, in this
case, with the trial court acting as the trier of fact. (Clark v. McClurg (1932) 215 Cal.
279, 282.) Although the clear and convincing standard governs the trier of fact’s decision
whether to award punitive damages, that decision is reviewed on appeal according to the
substantial evidence standard. (Finney v. Lockhart (1950) 35 Cal.2d 161, 163-164;
Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34; Patrick v. Maryland


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Casualty Co. (1990) 217 Cal.App.3d 1566, 1576.) Again, on this limited record,
defendants cannot establish that the trial court’s decision not to award punitive damages
does not have the support of substantial evidence. (Allen v. Toten, supra, 172 Cal.App.3d
1079, 1082.)
       “California follows the ‘American rule,’ under which each party to a lawsuit must
pay its own attorney fees unless a contract or statute or other law authorizes a fee award.”
(Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237;
accord, Estate of Wong (2012) 207 Cal.App.4th 366, 374.) Defendants identify no
contractual or statutory provision entitling them to recover attorney fees.
                       Defendants Do Not Demonstrate That The
                         Trial Court “Incorrectly Calculated”
                                  Jiang’s Overtime

       Defendants contend that “the overtime determination by the court was incorrectly
calculated in Jiang’s favor.” Jiang submitted that he was due $13,221.62 in overtime pay.
Defendants responded that, according to how Jiang’s hours of employment is calculated,
he was owed either $3,408.28, or $5,010.50, or $6,686.58. The trial court awarded Jiang
$6,280.56, plus interest of $1,396.56, for a total of $7,677.12. Defendants maintain “This
amount is incorrect for two reasons: first, the trial court incorrectly set Jiang’s hourly
wage at an amount higher than he actually earned. Second, the numbers do not add up to
the amount the court determined.”
       Defendants do not dispute the trial court’s finding that Jiang’s monthly salary was
$1,700. With Jiang’s salary being fixed—and undisputed—his hourly wage would
obviously be a function of how many hours he worked for that $1,700. Based on the
findings it announced at the end of the trial as to how many hours Jiang worked per week,
the court determined that Jiang worked 9 hours overtime per week for the 104 weeks at
issue. Defendants attempt to impeach this figure on the basis of figures they submitted to
the court in their posttrial brief. These figures, all of which are predicated on the premise
that defendants had already paid Jiang some overtime pay (“Actual payment for the
overtime hours”), were obviously rejected by the trial court. Just what evidence the trial


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court found more credible is not apparent from the judgment roll appeal, but we must
deem it sufficient to sustain the trial court’s findings. (Allen v. Toten, supra,
172 Cal.App.3d 1079, 1082.)
       Defendants’ second point cannot be so easily dismissed. Even Jiang concedes that
in the second line of the court’s overtime formula contains an error, namely using the
figure $7.81 instead of $9.81 (the amount of Jiang’s hourly wage produced by computing
the hourly wage produced by dividing his monthly salary by the statutory work week of
40 hours).
       Actually, both of defendants’ points are largely answered by the following in
Jiang’s posttrial brief: “As found by the trial court, plaintiff worked a total of 49.5 hours
each week, or nine and a half hours of overtime. See Labor Code § 510(a). For a
non-exempt full-time salaried employee as plaintiff, the regular hourly rate of pay is
one-fortieth of the employee’s weekly salary. (See Lab. Code § 515(d)), with overtime
assessed at one and a half times the regular hourly rate. Plaintiff’s regular hourly was
therefore $9.81 ((($1,700/month X 12 months) / 52 weeks) / 40 hours), and his overtime
rate was $14.71.
       “Plaintiff’s uncompensated overtime from the end of July 2007 to the end of
December 2007 was equal to $7.21 an hour (subtracting the prevailing minimum wage of
$7.50 to avoid double recovery), and from January 1, 2008 through his departure in mid
July was equal to $6.71 an hour (subtracting minimum wage of $8.00 an hour). Plaintiff
worked 22 weeks in 2007 that are within the limitations period . . . , 52 weeks for each of
2008 through 2010, and 28 weeks in 2011, a total of 206 weeks in which there were
9.5 hours of uncompensated overtime each week, or 1,957 total hours. The total amount
of overtime unpaid is equal to $13,221.62.”
       The trial court made findings that were against Jiang (e.g., reducing the number of
overtime hours to nine hours per week, eliminating 50 weeks), but it is clear that it
accepted $9.81 as Jiang’s hourly pay, and only that figure accords with the rest of the
court calculations. In the circumstances, “[t]his was an error of form, and not of



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substance,” the result of “mischance” (Clark v. McClurg, supra, 215 Cal. 279, 285) that
may be disregarded as nonprejudicial. (Cal. Const, art. VI, § 13.)
                    The Attorney Fee Award is not “Unreasonable”
       Unlike defendants, Jiang was able to point to two statutes authorizing an award of
attorney fees. Each of the two statutes governing the causes of action on which Jiang
prevailed specify that a prevailing employee is “entitled” to an award of attorney fees.
(Lab. Code, §§ 226, subd. (h), 1194, subd. (a).) After conducting an unreported hearing,
the trial court granted Jiang’s application for an award of attorney fees in the amount of
$33,180, expressly finding that “All hours expended by plaintiff’s counsel for litigation
of this matter are reasonable, as are counsel’s hourly rates.” Defendants contend this
award must be overturned as “unreasonable” in several respects. They are mistaken.
       Attorney fees under these statutes are recoverable as a matter of right. (See
Harrington v. Payroll Entertainment Services, Inc. (2008) 160 Cal.App.4th 589, 594.)
The standards governing review of a fee award are well-established: A “lodestar”
method should be used to determine a statutory attorney’s fee award unless the statutory
authorization for the award provides for another method. (Meister v. Regents of
University of California (1998) 67 Cal.App.4th 437, 448-449.) “[T]he lodestar method
vests the trial court with the discretion to decide which of the hours expended by the
attorneys were ‘reasonably spent’ on the litigation. [Citation.] The lodestar amount is
the product of the number of hours ‘reasonably spent’ and the reasonable rate.” (Id. at
p. 449.) A party may be compensated for hours reasonably spent on recovering
attorney’s fees. (Id. at p. 455.) However, if a fee request appears unreasonably inflated,
the trial court may reduce the award or deny it altogether. (Id. at pp. 447-448.) A fee
award must “bear some rational relationship to the amount of the substantive recovery.”
(Bakkebo v. Municipal Court (1981) 124 Cal.App.3d 229, 236.) “The determination of
an appropriate statutory fee award is committed to the trial court’s sound discretion and
will not be disturbed unless the court abused this discretion and the appellate court is
‘ “ ‘convinced’ ” ’ the ruling is ‘ “ ‘clearly wrong.’ ” ’ ” (Cates v. Chiang (2013)
213 Cal.App.4th 791, 820-821.) Appellate court deference is appropriate because “[t]he


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‘ “experienced trial judge is the best judge of the value of professional services rendered
in his court . . . .” ’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)
       Based on the fact that Jiang sought a much greater recovery than he received,
defendants first argue that “the damages awarded are not reasonably proportionate to the
amount of attorney’s fees sought.” We believe defendants are in effect making an
apportionment argument, namely, that the trial court failed to limit Jiang’s fee award to
only those parts of his litigation posture on which he prevailed.
       As noted, Jiang’s entitlement to attorney fees was absolute.
       “ ‘When a cause of action for which attorney fees are provided by statute is joined
with other causes of action for which attorney fees are not permitted, the prevailing party
may recover only on the statutory cause of action. However, the joinder of causes of
action should not dilute the right to attorney fees.’ [Citation.] Upon determining an
award of attorney fees . . . is appropriate under [a particular statute], apportionment of
fees . . . similarly rests within the sound discretion of the trial court. . . . Apportionment
is not required when the claims for relief are so intertwined that it would be
impracticable, if not impossible, to separate the attorney’s time into compensable and
noncompensable units. [Citations.]” (Bell v. Vista Unified School Dist. (2000)
82 Cal.App.4th 672, 686-687.)
       Because this is a judgment roll appeal, we can assume the trial court implicitly
determined at apportionment was not possible. (Estate of Kievernagel, supra,
166 Cal.App.4th 1024, 1031.) Such a determination would also be entitled to
considerable deference because it would be based on what the trial court had observed of
the two sides’ litigation strategies during the trial. (Ketchum v. Moses, supra, 24 Cal.4th
1122, 1132.) In the absence a more complete record, such an implicit determination
cannot be condemned as clearly wrong and thus an abuse of the trial court’s discretion.
(Cates v. Chiang, supra, 213 Cal.App.4th 791, 820-821; Fitch v. Pacific Fid. Ins. Co.,
supra, 54 Cal.App.3d 140, 143, fn. 1.)
       Defendants next argue that “in calculating the lodestar amount, the court failed to
consider whether Attorney’s Hourly Rate was reasonable.” In the face of the trial court’s


                                              10
express finding the charged rates of Jiang’s attorneys were reasonable, this argument may
be summarily rejected.
       The same is true for defendants’ argument that the 90 hours claimed by Jiang's
attorneys was “unreasonable.” We also note that billing 90 hours for two attorneys in a
two-day trial is hardly preposterous on its face, and would easily come within the trial
court’s discretion in evaluating the extent and worth of counsels’ services. (Ketchum v.
Moses, supra, 24 Cal.4th 1122, 1132.)
                                     DISPOSITION
       The judgment and the fee order are affirmed. Jiang shall recover his costs of
appeal.

                                                 _________________________
                                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




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