In Kirby v. Immoos Fire Protection, Inc., ___ Cal.App.4th ___ (Jul. 27, 2010), the Court of Appeal (Third Appellate District) reversed, in part, an order awarding attorneys' fees to a successful defendant in a wage and hour case.
The panel's discussion of the defendant's claim for fees incurred defending the UCL claim appears at pp. 23-26. Strangely, the opinion does not cite either of the two recent Court of Appeal cases on this subject, People ex rel. City of Santa Monica v. Gabriel, ___ Cal.App.4th ___ (Jul. 14, 2010) or Davis v. Ford Motor Credit Co., 179 Cal.App.4th 581 (2009). Both of those cases hold that the UCL does not allow fee-shifting even if the "borrowed" law does. Davis is particularly pertinent because it also involved a prevailing defendant. The holding in Kirby should have been predicated on this simple principle.
Instead, the Court examined the "borrowed" laws and determined that one of them allowed fee-shifting. The complaint also included a cause of action brought directly under that law, however, and fees incurred to defend that claim had already been awarded. To award fees for the UCL claim as well would constitute improper double recovery "for the same work." Slip op. at 25. In other words, the defendant had already been adequately compensated. See id.
The outcome is correct but the analysis is wrong conceptually. It should not matter whether any of the "borrowed" laws allowed fee-shifting, because the UCL does not "borrow" the remedies. It only "borrows" the liability principles.
[Hat tip to Phyllis Cheng for her awesome Labor and Employment Case Law Alerts, where I first saw this opinion mentioned. To receive Phyllis's alerts, join the State Bar's Labor and Employment Law Section.]