Filed 6/29/17

                            CERTIFIED FOR PUBLICATION


                COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                   STATE OF CALIFORNIA



MICHAEL SHAMES,                                  D070141

        Plaintiff and Appellant,

        v.                                       (Super. Ct. No. 37-2013-00036966-
                                                 CU-DF-CTL)
UTILITY CONSUMERS' ACTION
NETWORK,

        Defendant and Respondent.


        APPEAL from an order of the Superior Court of San Diego County,

Ronald L. Styn, Judge. Affirmed.

        McDougal, Love, Eckis, Boehmer & Foley, McDougal, Love, Boehmer, Foley,

Lyon & Canlas, Steven E. Boehmer and M. Anne Gregory for Plaintiff and Appellant.

        James D. Crosby for Defendant and Respondent.

                                           I.

                                     INTRODUCTION

        Plaintiff Michael Shames appeals from a postjudgment order regarding attorney

fees. Shames filed this lawsuit against Defendant Utility Consumers' Action Network
(UCAN) and two individual plaintiffs, alleging multiple causes of action, after UCAN

terminated his employment. The case proceeded to trial, and Shames prevailed on three

causes of action, including one in which he sought unpaid wages in the form of bonus

payments that were due to him pursuant to an incentive program. After judgment was

entered, Shames sought to recover the attorney fees that he incurred in litigating his

claims. Shames relied on two statutes for his request for attorney fees, but only one of

those statutes is at issue in this appeal. Specifically, Shames sought attorney fees

pursuant to Labor Code section 218.5,1 which provides in full:

          "(a) In any action brought for the nonpayment of wages, fringe
          benefits, or health and welfare or pension fund contributions, the
          court shall award reasonable attorney's fees and costs to the
          prevailing party if any party to the action requests attorney's fees
          and costs upon the initiation of the action. However, if the
          prevailing party in the court action is not an employee, attorney's
          fees and costs shall be awarded pursuant to this section only if the
          court finds that the employee brought the court action in bad faith.
          This section shall not apply to an action brought by the Labor
          Commissioner. This section shall not apply to a surety issuing a
          bond pursuant to Chapter 9 (commencing with Section 7000) of
          Division 3 of the Business and Professions Code or to an action to
          enforce a mechanics lien brought under Chapter 4 (commencing
          with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil
          Code.

          "(b) This section does not apply to any cause of action for which
          attorney's fees are recoverable under Section 1194." (Italics added.)

       The trial court denied Shames's request for attorney fees under section 218.5,

concluding that he had failed to request attorney fees "upon the initiation of the action"

because he did not request attorney fees in his initial complaint. The court also


1      Further statutory references are to the Labor Code unless otherwise indicated.
                                             2
concluded, in the alternative, that Shames's request for attorney fees in his amended

complaint was not sufficient to permit him to recover attorney fees as costs pursuant to

section 218.5.

         On appeal, Shames challenges both of the trial court's conclusions regarding his

failure to meet the requirements of section 218.5. We conclude that we need not decide

whether the trial court correctly determined that a request for attorney fees under section

218.5 must be included in the initial pleading, as opposed to an amended pleading,

because even if it would be sufficient under the statute to include a request for attorney

fees under section 218.5 in an amended pleading, Shames's amended pleading did not

request attorney fees generally, nor did it request attorney fees under section 218.5 with

respect to the cause of action in which Shames alleged that UCAN had failed to pay him

his full wages. Rather, the amended pleading included a reference to section 218.5 only

as to a cause of action that was not brought on account of the nonpayment of wages, and

one on which UCAN, not Shames, prevailed. We therefore affirm the order of the trial

court.

                                             II.

                    FACTUAL AND PROCEDURAL BACKGROUND

A. Factual background

         Shames founded UCAN, a nonprofit organization, in 1981 for the purpose of

"educating San Diego consumers concerning regulated utility matters and representing

their viewpoints before regulatory bodies and proceedings." Shames served as the

executive director of UCAN for 27 years. A board of directors, which included attorneys

                                              3
and public agency administrators, oversaw Shames's activities and directed the policies of

the organization.

       In May 2012, Shames left his role as executive director, and the UCAN board

hired a new executive director. Shames offered to remain on at UCAN as a part-time

employee in order to assist with ongoing legal actions until they were completed.

According to Shames, UCAN accepted his offer of part-time employment. However,

there was apparently a conflict between Shames and the new executive director with

respect to how to litigate the cases, and, as Shames alleged in his original and amended

complaints, UCAN terminated his employment as of June 20, 2012.

B. Procedural background

       1. The pleadings and pretrial motions

       Shames filed an action against UCAN on February 28, 2013. The original

complaint alleged 10 causes of action, including (1) libel, (2) libel per se, (3) malicious

prosecution, (4) intentional interference with prospective business relations,

(5) blacklisting, (6) unauthorized computer use and access, (7) publication of private

facts, (8) wrongful termination, (9) failure to indemnify costs, and (10) breach of contract

and declaratory relief.2 Shames did not include a request for attorney fees in this

complaint.




2      In count 10 of the complaint, which Shames identified as a breach of contract
claim and in which he sought declaratory relief, Shames alleged that, following his
termination in June 2012, UCAN failed to pay him a bonus of $5,023.96 that was due to
him under an incentive plan.
                                              4
       UCAN filed an anti-SLAPP motion with respect to portions of the complaint. The

court granted the anti-SLAPP motion with respect to the causes of action for libel,

intentional interference with prospective economic damage, blacklisting, and publication

of private facts. UCAN also demurred to the complaint, and the trial court sustained the

demurrer, with leave to amend, with respect to the causes of action for wrongful

termination and breach of contract.

       In the meantime, UCAN also cross-complained against Shames, alleging breach of

fiduciary duty with respect to incentive bonuses that Shames had taken during his tenure

at UCAN. UCAN alleged that the bonuses had not been approved by the Board. Shames

answered the cross-complaint, denying UCAN's allegations and asserting a number of

affirmative defenses. In the concluding paragraph of Shames's answer, he requested that

judgment be entered in his favor on the cross-complaint, and that he recover "costs of suit

and reasonable attorneys [sic] fees herein incurred, and any such other relief as the court

may deem just and proper."

       Shames filed a first amended complaint in October 2013. In the first amended

complaint, Shames alleged seven causes of action, including the following:

(1) unauthorized computer use and access as to UCAN, (2) unauthorized computer use

and access as to individual defendants Aguirre and Peffer, (3) illegal eavesdropping,

(4) "waiting time penalties in violation of Labor Code section 203" (formatting omitted),

(5) "knowing and intentional failure to comply with itemized employee wage statement

provision, as per Labor Code section 226(a)" (formatting omitted), (6) failure to

indemnify costs, and (7) breach of contract/declaratory relief.

                                             5
       There are three references to a request for attorney fees in the first amended

complaint. The first reference, in paragraph 46 of the pleading, alleged as part of the

third count for illegal eavesdropping, provides: "46. Plaintiff is entitled to statutory

damages of $5,000 as per Penal Code Section 637.2(a)(1) and attorneys' fees pursuant to

Civil Procedure Section 1021.5."

       The second reference, found in paragraph 52, alleged as part of the fourth count

for "violation of Labor Code section 203" (formatting omitted), provides: "52. Plaintiff

was forced to retain counsel to negotiate full and proper payment of wages and other

reimbursables. In so doing, Plaintiff incurred legal costs of $3,000. Pursuant to Labor

Code Section 218.5, the court may award reasonable attorney's fees and costs."3

       The third reference, in paragraph 59, alleged as part of the fifth count for

"knowing and intentional failure to comply with itemized employee wage statement

provision" (formatting omitted) in violation of section 226, provides: "59. Plaintiff is

entitled to penalties as follows: [¶] a. Fifty dollars ($50.00) for the initial pay period in

which a violation occurred; and [¶] b. An award of costs and reasonable attorneys' fees."

3       For further context, the paragraphs immediately surrounding this paragraph state
the following:
           "51. The hourly rate owed to Plaintiff was $32.81 or $262.50 per
           day. Partial payment of the full amount owing was tendered by
           Defendant on August 21, 2012, a full 61 days after Plaintiff's
           termination and 31 days in excess of the Labor Code Section 203
           statutory requirement.
           "[¶] . . . [¶]
           "53. Plaintiff is also owed statutory damages based the equivalent to
           the employee's daily wages for up to a total of 30 days in the amount
           of $7,875 (based upon a daily wage of $262.50)."
                                               6
       The first amended complaint does not include any reference to attorney fees in the

paragraphs supporting count 7, in which Shames alleges the breach of

contract/declaratory relief cause of action for failure to pay him multiple bonus payments,

totaling more than $150,000, that he alleges were due pursuant to UCAN's incentive plan.

Nor does the first amended complaint include a request for attorney fees in the general

prayer for relief.4

       UCAN filed an answer to the first amended complaint in November 2013. It did

not request or otherwise mention attorney fees.

       2. The trial

       Just prior to the start of trial, Shames filed a "Plaintiff's Trial Brief." (Formatting

omitted.) In that brief, Shames discussed all of the claims alleged in the first amended

complaint. With respect to count 7, for breach of contract with respect to the incentive

payments, Shames included the following contention, which contains a reference to

section 218.5:

           "Mr. Shames performed all, or substantially all, of the significant
           work that the incentive contract required him to do, resulting in a


4      The prayer for relief includes the following language:
           "WHEREFORE, Plaintiff demands judgment against Defendants,
           and each of them, for:
           1. Compensatory damages according to proof;
           2. For general damages, according to proof;
           3. For special damages, according to proof;
           4. For exemplary and/ or punitive damages;
           5. For plaintiff's cost of suit;
           6. Such other and further relief as this court may deem just and
           proper."
                                               7
          large award of attorney's fees to UCAN by the Public Utilities
          Commission. Mr. Shames' performance of these contractually
          obligated duties was predicated upon the receipt of the incentives.
          Mr. Shames therefore seeks all payments due as of time of judgment
          and a declaration that he has a right to future payments as they
          become due. Pursuant to Labor Code Section 218.5, the court may
          also award reasonable attorney's fees and costs." (Italics added.)

      The case proceeded to trial in August 2015. A jury returned special verdicts on

the causes of action on August 27, 2015. The jury found the following with respect to the

counts Shames alleged against UCAN:

      (1) With respect to count 1, for unauthorized use and access as to UCAN, the jury

found that UCAN had accessed Shames's GoDaddy account without permission, but that

Shames had not been harmed by the unauthorized access;

      (2) With respect to count 4, for a waiting time penalty for failure to pay final

wages in violation of section 203, the jury found in favor of UCAN, determining that

UCAN had not willfully failed to pay Shames the "full amount of wages" Shames had

earned, on his last day of employment;

      (3) With respect to count 5, for failure to provide an itemized wage statement, the

jury found that UCAN failed to provide Shames with an accurate itemized wage

statement and awarded Shames $50 in penalties for that failure;




                                             8
       (4) With respect to count 6, for failure to indemnify legal costs, the jury found that

UCAN failed to indemnify Shames for legal fees and that Shames had been damaged in

the amount of $2,2405; and

       (5) With respect to count 7, for breach of contract for failure to pay incentive

payments, the jury found that UCAN had breached its contract with Shames to pay

incentive payments, and that Shames had been damaged in the amount of $141,544 as a

result of UCAN's breach.6

       On UCAN's cross-complaint against Shames for breach of fiduciary duty, the jury

found in favor of Shames and determined that he had not breached any fiduciary duties

that he owed to UCAN.

       The court entered the following judgment in September 2015:

          "Judgment is hereby ordered to be entered on the complaint in favor
          of plaintiff, Michael Shames, and against defendant, UCAN, and that
          Michael Shames is awarded damages in the sum of $141,544, and
          indemnification for legal fees from Steven Feldman in the sum of
          $2,240.00, and statutory penalties in the sum of $50.00. Judgment is
          entered in favor of Michael Shames and against UCAN on UCAN's
          cross-complaint."

       3. Posttrial attorney fees motion

       Subsequent to the court's entry of judgment in Shames's favor, Shames filed a

motion for attorney fees, relying on both sections 218.5 and 226, subdivision (e) of the

5      When asked, "What are Michael Shames' damages?" with respect to the failure to
indemnify count, the jury specified: "$2,240 - legal fees from Steven Feldman."
6      The Clerk's Transcript does not include verdict forms with respect to counts 2
(unauthorized use and access as to individual defendants) and 3 (illegal eavesdropping).
Both parties' trial briefs discuss count 3 as still being at issue at the time of trial, but
neither brief discusses count 2.
                                              9
Labor Code.7 Shames argued that under section 218.5, he was entitled to receive his

attorney fees for the entire litigation because he had brought an action for nonpayment of

wages, he was ultimately the prevailing party, and that under section 226, he was entitled

to receive his attorney fees for the entire litigation because he had been awarded $50 in

penalties by the jury with respect to UCAN's failure to provide him with an accurate

itemized wage statement. Shames sought a total of $136,721.25 in attorney fees,

including fees for the filing of the attorney fees motion itself. UCAN opposed Shames's

attorney fees motion.

       The trial court ultimately awarded Shames $2,000 in attorney fees, pursuant to

section 226, and also awarded him $6,151.23 in costs. The court determined that Shames

was not entitled to recover attorney fees pursuant to section 218.5 because Shames's

initial complaint did not include "any allegation or prayer for attorneys' fees as to the

breach of contract/declaratory relief cause of action." According to the trial court, the

statute requires that a party request section 218.5 attorney fees upon the "initiation of the

action," which, the court determined, "is the party's first appearance in the matter." The

trial court further noted that Shames's first amended complaint also did not include a

7      Section 226, subdivision (e) provides:
          "(e)(1) An employee suffering injury as a result of a knowing and
          intentional failure by an employer to comply with subdivision (a)
          [i.e., the failure to provide an itemized wage statement] is entitled to
          recover the greater of all actual damages or fifty dollars ($50) for the
          initial pay period in which a violation occurs and one hundred
          dollars ($100) per employee for each violation in a subsequent pay
          period, not to exceed an aggregate penalty of four thousand dollars
          ($4,000), and is entitled to an award of costs and reasonable
          attorney's fees."
                                             10
request for attorney fees with respect to the breach of contract/declaratory relief cause of

action that formed the basis of his contention that he was entitled to section 218.5

attorney fees. Rather, the first amended complaint requests attorney fees under Code of

Civil Procedure section 1021.5 in the third cause of action, related to illegal

eavesdropping, and mentions attorney fees pursuant to section 218.5 only in the fourth

cause of action, related to waiting time penalties—both of which are causes of action on

which Shames did not prevail.

       Shames filed a notice of appeal from the trial court's postjudgment order granting

in part and denying in part Shames's motion for attorney fees and costs.8

                                              III.

                                        DISCUSSION

       Shames contends that the trial court erred in denying his request for attorney fees

under section 218.5. First, Shames asserts that the trial court erred in interpreting section

218.5 to require that he have requested attorney fees under that statute in the very first

pleading that he filed in the action, as opposed to in an amended pleading. Shames next

asserts that the trial court erred in concluding, in the alternative, that even if it were

sufficient for purposes of section 218.5 to include a request for attorney fees in an



8      During the pendency of this appeal, Shames filed an unopposed request for
judicial notice, seeking to have this court take judicial notice of a variety of documents
related to the legislative history of section 218.5. Shames relies on California Rules of
Court, rule 8.252 and Evidence Code section 452, subdivisions (b), (c), and (h), in
support of his motion. We agree that the documents are of the type for which judicial
notice is appropriate, and therefore grant Shames's request and take judicial notice of the
documents.
                                               11
amended pleading and not in the initial pleading, Shames nevertheless also failed to

sufficiently request attorney fees under section 218.5 in his first amended complaint.

Both of Shames's contentions raise questions of law that we review de novo, in that they

require our consideration as to whether he has met the statutory requirements for

entitlement to attorney fees. (See MHC Financing Limited Partnership Two v. City of

Santee (2005) 125 Cal.App.4th 1372, 1397.) To the extent that we must interpret the

statutory language in determining whether Shames has met the statutory requirement for

entitlement to attorney fees, we give "the words their usual, ordinary meaning." (People

v. Canty (2004) 32 Cal.4th 1266, 1276.)

       We conclude that we need not reach the issue of whether a party must, in every

instance, request section 218.5 attorney fees in its initial, rather than an amended,

pleading in an action because even if we assume that Shames is correct that one may

request attorney fees under section 218.5 in an amended pleading, the operative amended

pleading in this case did not include a sufficient request for attorney fees pursuant to

section 218.5.

       "In general, a prevailing party may recover attorney's fees only when a statute or

an agreement of the parties provides for fee shifting. [Citation.] Labor Code section

218.5 requires the awarding of attorney's fees to the prevailing party '[i]n any action

brought for the nonpayment of wages, fringe benefits, or health and welfare or pension

fund contributions.' This provision awards fees to the prevailing party whether it is the




                                             12
employee or the employer; it is a two-way fee-shifting provision." (Kirby v. Immoos Fire

Protection, Inc. (2012) 53 Cal.4th 1244, 1248 (Kirby).)9

       Shames contends that he is entitled to recover his attorney fees, as a prevailing

party on his claim in count 7 in the first amended complaint, for UCAN's failure to pay

him bonuses to which he was entitled under UCAN's incentive plan.10 According to

Shames, the legislative history of section 218.5 demonstrates that the purpose of section

218.5 "is to protect an employee from an employer who refuses to pay the employee

wages to which he was entitled." He further argues that he "is the exact type of employee




9        Section 218.5's two-way fee shifting provision is in contrast to the one-way fee
shifting provision of section 1194. "[S]ection 1194 provides that employees who prevail
in an action for any unpaid 'legal minimum wage or . . . legal overtime compensation' are
entitled to recover attorney's fees." (Kirby, supra, 53 Cal.4th at p. 1248.) Subdivision (b)
of section 218.5 states that section 218.5 "does not apply to any cause of action for which
attorney's fees are recoverable under Section 1194." Thus, "[p]revailing employers
cannot obtain attorney's fees under section 218.5 . . . if the employees could have
obtained such fees under section 1194 had they prevailed." (Kirby, supra, at p. 1251.)
10       The parties apparently do not dispute that this claim is one that was "brought for
the nonpayment of wages" (§ 218.5, subd. (a)), and thus, is the type of claim for which
section 218.5 would authorize an attorney fee award if "any party to the action
request[ed] attorney's fees and costs upon the initiation of the action." (Id., subd. (a).) In
this vein, the Supreme Court has recently clarified section 218.5's reference to the phrase
an "action brought for" by explaining that "section 218.5 uses the phrase 'action brought
for' to mean something different from what the phrase means when it is coupled with a
particular remedy (e.g., 'action brought for damages' or 'action brought for injunctive
relief'). An 'action brought for damages' is an action brought to obtain damages. But an
'action brought for the nonpayment of wages' is not (absurdly) an action to obtain
nonpayment of wages. Instead, it is an action brought on account of nonpayment of
wages. The words 'nonpayment of wages' in section 218.5 refer to an alleged legal
violation, not a desired remedy." (Kirby, supra, 53 Cal.4th at p. 1256.) Thus, an action
"brought for nonpayment of wages" is one "brought on account of nonpayment of
wages." (Ibid.)
                                             13
the Legislature had in mind when it enacted section 218.5," because, according to

Shames, he "filed an action for nonpayment of wages and prevailed."

       Generally, a party need not request "attorney's fees qua attorney's fees," i.e., "those

attributable to the bringing of [an] action itself" (Brandt v. Superior Court (1985) 37

Cal.3d 813, 817) as opposed to those sought as damages, in a complaint or answer. (See

Faton v. Ahmedo (2015) 236 Cal.App.4th 1160, 1169 [statutory attorney fees need not be

pled and proven, and instead may properly be requested and awarded after entry of

judgment; however, attorney fees sought as damages must be pled and proven just as any

other issue of damages must be pled and proven].) However, despite this general rule, in

order for a party to be entitled to an award of attorney fees pursuant to section 218.5, that

party must do more than simply "file[ ] an action for nonpayment of wages" and be the

prevailing party to that particular claim or claims, as Shames suggests. Rather, section

218.5 clearly imposes a requirement that at least one party to the action "request" attorney

fees upon the "initiation of the action" (§ 218.5, subd. (a)) in order for either party to

recover fees pursuant to the statute. It would appear plain that this requirement exists so

as to place the parties on notice that the true cost of the litigation might be greater than

the amount sought as statutory damages.11 Both parties to this appeal appear to agree



11      At the hearing on the attorney fees motion, counsel for Shames acknowledged that
the "initiation of the action" requirement of section 218.5 is focused on ensuring that a
party is put on notice, early in the action, that the other party is seeking to recover
attorney fees as costs in the pending action: "[A]nd my position is, this is a notice[ ]
requirement so that the other side is apprised that my client is seeking attorney's fees, and
they're amply put on notice with the only operative pleading that my client has before the
Court, which is the first amended complaint. And all the fees that are being asked for are
                                              14
that this requirement imposes a duty on a party to plead an entitlement to 218.5 attorney

fees in either an initial or amended pleading.12

       The record discloses that UCAN did not request attorney fees in its pleadings.

Shames, however, contends that he "specifically requested attorney's fees pursuant to

section 218.5" in the operative complaint (i.e., the first amended complaint). Shames

concedes that the paragraph in the first amended complaint in which he refers to section

218.5 "fell under the waiting time penalties cause of action," a cause of action on which

he did not prevail, but contends that "reading the complaint as a whole, UCAN was

nevertheless put on notice that Mr. Shames was seeking attorney's fees pursuant to

section 218.5." We disagree with Shames's overly generous reading of the operative

complaint, and we are unconvinced that Shames "requested" attorney fees in a sufficient

manner so as to place UCAN on notice that he would be seeking an award of attorney

fees, pursuant to section 218.5, for the attorney fees that he incurred in litigating his

claim for the nonpayment of wages in this matter.




all following the first amended complaint. . . . I wasn't retained until, I want to say,
March or April of 2015. The first amended complaint was filed in 2013. All the fees --
the 136,000 in fees we're asking for all flow out of my representation, therefore, the
notice[ ] requirement that I think the Court's concerned about is readily addressed, a year
in the making, and they were clearly put on notice in paragraph 52 of the first amended
complaint that Mr. Shames was seeking. And he quotes Labor Code 218.5 fees, so
there's no prejudice to the other side." (Italics added.)
12      Although the parties disagree as to whether the request must be in the initial
pleading, or, rather, may be in an amended pleading, they appear to agree that the request
must be present in a pleading—i.e., in a document constituting the "formal allegations by
the parties of their respective claims and defenses" (Code Civ. Proc., § 420)—as opposed
to in some other type of document, such as a motion.
                                              15
       Again, although we do not decide the issue here, we assume that Shames is correct

in asserting that if a plaintiff requests fees under section 218.5 in an amended pleading,

which is the operative pleading in the case, that such a request may be considered to be a

request for attorney fees "upon the initiation of the action" (§ 218.5, subd. (a)).13 In

looking at the operative first amended complaint, we note that the prayer for relief does

not include any request for attorney fees. Given that Shames did not generally pray for

attorney fees, as costs, in this litigation, there is no general, overarching request for

attorney fees that could be considered to be a "request" for attorney fees with respect to

the cause of action for nonpayment of wages, pursuant to section 218.5.

       There are, however, three separate references to attorney fees located elsewhere

within the first amended complaint. Each of these three references is located within a

paragraph that falls within a separately-titled count setting forth a particular cause of

action. Shames relies on only one of these references to attorney fees—the reference in

paragraph 52, which is part of the fourth count for "Waiting Time Penalties in Violation

of Labor Code Section 203." (Boldface omitted.) In that count, Shames alleged the

following relevant factual allegations:

           "47. Plaintiff's employment ended on June 20, 2012 through
           termination initiated by Defendant UCAN. Pursuant to Labor Code


13      The "action" referred to in section 218.5 has been interpreted to refer to a "cause
of action," as opposed to a "civil action" generally. (Aleman v. AirTouch Cellular (2012)
209 Cal.App.4th 556, 584 [in accordance with the rule of statutory construction that
permits a reasonable inference that where statutory language is ambiguous, legislators
intended a construction that produces practical and workable results rather than mischief
or absurdity, the court concluded that " 'any action' in section 218.5 refers to any 'cause of
action' "].)
                                              16
          Section 201, Plaintiff was owed all final wages on June 20th. He did
          not receive full payment on that day.

          "48. Plaintiff was offered final pay of $416.63 at the time of his
          termination. This payment was inaccurately computed by
          Defendant. Also, Defendant withheld $3,543.75 in accrued vacation
          pay. Pursuant to Labor Code Section 227.3, unused vacation pay
          falls within the Section 203 statutory requirement.

          "49. Defendant's nonpayment was willful. . . .

          "[¶] . . . [¶]

          "51. The hourly rate owed to Plaintiff was $32.81 or $262.50 per
          day. Partial payment of the full amount owing was tendered by
          Defendant on August 21, 2012, a full 61 days after Plaintiff's
          termination and 31 days in excess of the Labor Code Section 203
          statutory requirement."

      With respect to this claim, Shames requested the following relief:

          "52. Plaintiff was forced to retain counsel to negotiate full and
          proper payment of wages and other reimbursables. In so doing,
          Plaintiff incurred legal costs of $3,000. Pursuant to Labor Code
          Section 218.5, the court may award reasonable attorney's fees
          and costs.

          "53. Plaintiff is also owed statutory damages based the equivalent to
          the employee's daily wages for up to a total of 30 days in the amount
          of $7,875 (based upon a daily wage of $262.50).

          "54. The policies, acts and practices heretofore described were and
          are unlawful business acts or practices in violation of applicable
          Labor Code sections and give rise to statutory penalties as a result of
          such conduct, including but not limited to penalties are provided by
          the Labor Code Private Attorney General Act of 2004. Plaintiff, an
          aggrieved employee, hereby seeks recovery of civil penalties as
          prescribed by the Act on behalf of himself. . . ." (Italics added.)14


14     The other two references to attorney fees in the first amended complaint clearly do
not relate to a claim or claims brought on account of the nonpayment of wages and are
based on statutory authority distinct from section 281.5, and Shames does not argue
                                            17
       Of significance is the fact that the sole claim "brought" by Shames "for the

nonpayment of wages" (§ 218.5, subd. (a)), is his claim for "Breach of Contract and

Declaratory Relief Against Defendant UCAN" (boldface omitted) set forth as the seventh

count in the first amended complaint. There is no request for attorney fees included

within the paragraphs that set forth this claim.

       Shames, therefore, relies on a request for attorney fees under section 218.5 that is

located in an entirely separate cause of action from the cause of action in which he asserts

his claim for the nonpayment of wages. The question that we must address is whether

Shames's request for attorney fees based on section 218.5, as pled solely in count 4,

adequately placed UCAN on notice that it might potentially be liable for attorney fees

that Shames incurred in litigating the claim for nonpayment of wages, as pled in count 7.

We conclude that it did not.




otherwise. For example, one reference is located in paragraph 46 of the first amended
complaint, which is alleged as part of count 3, identified as "Illegal and Unauthorized
Eavesdropping in Violation of California Penal Code Sections 630 et. seq. by Defendants
UCAN, Peffer and Aguirre." (Boldface omitted.) This reference provides: "46. Plaintiff
is entitled to statutory damages of $5,000 as per Penal Code Section 637.2(a)(1) and
attorneys' fees pursuant to Civil Procedure Section 1021.5." The other reference to
attorney fees is located in paragraph 59, which is located in the fifth count identified as
"Knowing and Intentional Failure to Comply with Itemized Employee Wage Statement
Provision, as per Labor Code Section 226(a)." (Boldface omitted.) This request for
attorney fees was included as part of the relief to which Shames asserted he was entitled,
as follows: "59. Plaintiff is entitled to penalties as follows: [¶] a. Fifty dollars ($50.00)
for the initial pay period in which a violation occurred; and [¶] b. An award of costs and
reasonable attorneys' fees." Although not cited in the first amended complaint, section
226, subdivision (h) authorizes an award of "costs and reasonable attorney's fees" to an
employee who brings a claim for failure to provide an itemized wage statement pursuant
to section 226.
                                             18
       What Shames appears to have been requesting in paragraph 52 is the recovery of

attorney fees that he had already incurred at the time the first amended complaint was

filed, as damages in this action. Again, Shames alleged, in paragraph 52, that he had

"incurred legal costs of $3,000" when he was "forced to retain counsel to negotiate full

and proper payment of wages and other reimbursables," and in support of this request for

$3,000 in attorney fees as damages, Shames cited section 218.5 as the statutory basis for

his entitlement to these attorney fees as damages.15 In other words, the reference to

section 218.5 in paragraph 52 refers to Shames's request for damages of $3,000 in

attorney fees as part of the recovery requested pursuant to his claim that UCAN was

liable for waiting time penalties for not providing him his final wages within the time

limitation set forth in section 203. The additional request for "statutory damages based

[on] the equivalent to the employee's daily wages for up to a total of 30 days in the

amount of $7,875 (based upon a daily wage of $262.50)" present in the paragraph

immediately following paragraph 52 is further evidence that paragraph 52 set forth one

portion of the relief being requested pursuant to the legal claim set forth in count four, as

opposed to being a request for attorney fees that would be incurred in litigating that legal

claim, or any other legal claim set forth in the operative pleading. As a result, the

reference to attorney fees and to section 281.5 in paragraph 52, as pled in count four of



15      It is not at all clear that Shames is correct in asserting that section 218.5 provides
the statutory basis for an entitlement to attorney fees that were incurred with respect to
the "negotiate[ion]" of "full and proper payment of wages and other reimbursables" since
section 218.5 authorizes an award of attorney fees in an "action brought for the
nonpayment of wages" (italics added).
                                              19
the operative complaint, cannot reasonably be interpreted to be a "request" for attorney

fees incurred in the litigation of this action, as is required by section 218.5. No

reasonable reading of the first amended complaint would permit one to conclude that

Shames's request in paragraph 52 for $3,000 in attorney fees that he had already incurred

at the time he filed this action would also place UCAN at risk for an additional

$136,721.25 in attorney fees that Shames ultimately incurred in litigating this action.

       Shames also briefly suggests on appeal that his request for attorney fees "in his

answer to UCAN's cross-complaint" was a sufficient "request" for attorney fees under

section 218.5 to support an award of attorney fees to him. He contends that "[t]he cross-

complaint and answer to such were filed in this action" and that "[t]he cross-complaint

also focused on the incentive plan and Mr. Shames' entitlement to bonuses under UCAN's

incentive plan." We reject this contention. UCAN's cross-complaint against Shames was

for breach of fiduciary duty; as such, the cross-complaint did not include any claim that

was brought "on account of nonpayment of wages" (Kirby, supra, 53 Cal.4th at p. 1256).

The cross-complaint cannot be considered to be an "action brought for the nonpayment of

wages." Thus, a request for attorney fees included in Shames's answer to the cross-

complaint cannot be considered to be a request for attorney fees in an "action brought for

the nonpayment of wages."

       It is apparent that the purpose of section 218.5 is to ensure that prevailing

plaintiffs who bring actions against employers on account of the employer's failure to pay

that plaintiff the wages or certain other benefits to which he or she is entitled are awarded

their attorney fees. Indeed, one of the arguments offered in support of passage of the

                                             20
original iteration of the statute was that "actions for nonpayment of wages usually involve

relatively small amounts of money, since such suits arise from a situation in which the

employee is terminated or quits because of lack of payment. Due to the fact recoveries

are often small, the expense of hiring an attorney to file and pursue a lawsuit often

exceeds the value of the claim, with the employee forced to make the economical

decision not to enforce his or her rights." (Sen. Rules Com., Off. of Sen. Floor Analysis,

Rep. on Sen. Bill No. 2570 (1985–1986 reg. sess.) as amended May 14, 1986, p. 2.)16

We recognize that, given the purpose of the statute, the result we reach here might seem

harsh, since Shames is a former employee of UCAN who brought and prevailed on a

cause of action for UCAN's failure to pay him wages to which he was entitled. However,

section 218.5 also clearly places a very specific requirement on a party who seeks an

award of attorney fees in such an action—i.e., to demonstrate that one of the parties to the

action requested those fees "upon the initiation of the action." In order for Shames to

prevail in this appeal, we would have to read this requirement out of section 218.5, and

we may not do so. (See, e.g., Vasquez v. State of California (2008) 45 Cal.4th 243, 253

[court's role in construing a statute is to ascertain and declare what statute contains, and

not to "change its scope by reading into it language it does not contain or by reading out

of it language it does" (italics added)].)


16     The argument made to support the two-way fee shifting nature of the provision
was the following: "Conversely, employers will be protected from frivolous lawsuits for
nonpayment of wages since the employee will be required to pay the employer's legal
fees when the employer is the prevailing party." (Sen. Rules Com., Off. of Sen. Floor
Analysis, Rep. on Sen. Bill No. 2570 (1985–1986 reg. sess.) as amended May 14, 1986,
p. 2.)
                                              21
                                            IV.

                                     DISPOSITION

      The trial court's order regarding attorney fees is affirmed.



                                                                     AARON, J.

WE CONCUR:

HALLER, Acting P. J.

DATO, J.




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