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NOT FOR PUBLICATION JUL 24 2012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.
3