United States District Court, W.D. Washington, Seattle
S. ZILLY, UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on Plaintiff's Motion to
Recover Attorney Fees, docket no. 147 (“Plaintiff's
Motion”), and Defendant Valve Corporation's Motion
for Award of Attorney's Fees, docket no. 151
(“Defendant's Motion”). Having reviewed all
papers filed in support of, and in opposition to, the
motions, the Court enters the following order.
brought suit alleging eight claims: (1) wrongful termination
in violation of public policy; (2) discrimination; (3)
failure to accommodate; (4) hostile work environment; (5)
retaliation; (6) unpaid wages under California Labor Code
§ 203; (7) violation of the California Unfair
Competition Law (“UCL”), Cal. Bus. & Prof.
Code § 17200, et seq.; and (8) misclassification under
California Labor Code § 226.8. See generally Complaint,
docket no. 1-1.
27, 2017, Defendant moved for partial summary judgment on all
of Plaintiff's claims, except for causes of action six
and seven. See Defendant's Motion for Partial Summary
Judgment, docket no. 60, at 2. On September 20, 2017, the
Court granted Defendant summary judgment on Plaintiff's
failure to accommodate, hostile work environment,
retaliation, and misclassification claims. Docket no. 89. The
Court denied Defendant's request for summary judgment on
Plaintiff's wrongful termination and discrimination
September 25, 2017, Defendant tendered a check to Plaintiff
“in the amount of $51, 243.14, the exact amount
Plaintiff claimed was owed to her in unpaid overtime wages
and associated interest . . . .” Declaration of Liam
Lavery, docket no. 154 (“Lavery Decl.”), at
¶ 4. “[Defendant] explained to Plaintiff that
while it did not intend to admit that she was an employee
entitled to overtime wages, it intended to moot her Labor
Code and Unfair Competition Law claims by providing her with
all of the relief to which she would be entitled if she
prevailed on those claims. To complete her recovery,
[Defendant] also agreed to pay Plaintiff's reasonable
attorneys' fees solely in connection with her unpaid
wages claim in an amount to be determined by the
Court.” Id. at ¶ 6. Plaintiff accepted
and deposited the check, but maintained that her unpaid wages
and UCL claims were not moot. Id. at ¶¶
commenced on November 1, 2017, and Defendant ultimately
prevailed on Plaintiff's remaining claims for wrongful
termination, discrimination, unpaid wages, and UCL claims.
See Jury Verdict, docket no. 145.
this backdrop, Plaintiff asserts that she is entitled to
reasonable attorney's fees incurred in prosecuting her
unpaid wages claim, but does not identify any legal basis for
the recovery of those fees. Defendant, in turn, seeks fees
under FEHA and the parties' “Independent Contractor
Agreement” at issue in this lawsuit. Declaration of
Laurence A. Shapero in Support of Valve's Motion for
Attorney's Fees, docket no. 152 (“Shapero
Decl.”), Exhibit E (the “Agreement”).
Defendant specifically asserts that “Plaintiff's
wrongful termination, discrimination, failure to accommodate,
and retaliation [claims] all arise under or are underpinned
by FEHA [collectively, the ‘FEHA Claims'].
Plaintiff's remaining claims-unpaid wages § 203,
violation of UCL, and misclassification under §
226.8-all arise out of the parties' Agreement
[collectively, the ‘Non-FEHA Claims'].”
Defendant's Motion at 3.
courts sitting in diversity apply state law in determining a
party's right to recover fees. Kona Enters., Inc. v.
Estate of Bishop, 229 F.3d 877, 883 (9th Cir.
district court has discretion to award attorney fees to a
prevailing defendant in a FEHA action ‘upon a finding
that the plaintiff's action was frivolous, unreasonable,
or without foundation [i.e., groundless].'”
Zaman v. Kelly Servs., No. 15-cv-04601-HRL, 2017 WL
2335601, at * 3 (N.D. Cal. May 30, 2017) (alteration in
original) (quoting Christianburg Garment Co. v.
Equal Emp't Opportunity Comm'n, 434 U.S. 412,
42-22 (1978)). In determining whether a FEHA action is
frivolous for purposes of a fee award, the Court considers
whether (1) the plaintiff established her prima facie case;
(2) defendant offered to settle; and (3) the court dismissed
the case before it was tried on the merits. Portnoy v.
Veolia Transp. Servs., Inc., No.
2:10-cv-02730-GEB-CKD, 2013 WL 4828122, at *1 (E.D. Cal.
Sept. 9, 2013) (citing Lial v. Cnty. of Stanislaus,
No. CV F 09-1039 LJO JLT, 2011 WL 92012, at *3 (C.D.
Cal. Jan. 11, 2011)). If the Court concludes that the FEHA
claims were frivolous, it must then determine when plaintiff
should have known that they had become so. Zaman, 2017 WL
2335601, at *3.
Fees Under the Agreement
Agreement allows the prevailing party in “any claim or
cause of action . . . arising out of or relating to this
Agreement . . . to recover . . . all “reasonable
attorney's fees incurred . . . .” Agreement at
¶ 14. The Agreement further requires Plaintiff to
“bear any and all expenses, including legal and other
professional fees, . . . that [Defendant] and/or [Plaintiff]
may incur in ...