Lan v. Comcast CA1/5

Filed 9/30/16 Lan v. Comcast CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

TOM LAN,

Plaintiff and Appellant, A147025 v. (Alameda County COMCAST CORPORATION, LLC, Super. Ct. No. RG13681816)

Defendant and Respondent. ____________________________________/

Tom Lan appeals from trial court orders granting Comcast Cable Communications Management, LLC’s (Comcast) motion for Labor Code section 98.2 attorney fees and denying his motion to vacate the attorney fee award. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Comcast terminated Lan, and he filed a claim with the California Labor Commissioner, which awarded him $19,348.02. Lan challenged the Labor Commissioner’s decision in the superior court. In late 2013, following a de novo bench trial, the court reversed the Labor Commissioner’s award and entered judgment for

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Comcast. The court also awarded Comcast attorney fees pursuant to section 98.2, subdivision (c).1 Lan appealed, and this court affirmed. (Lan I, supra, A140039/ A149398.) Upon remittitur, Comcast filed a motion for $87,444.10 in attorney fees pursuant to section 98.2, claiming it was entitled to attorney fees incurred in Lan I for “successfully defending” the trial court’s 2013 judgment. Comcast argued its attorney fees were reasonable; in a supporting declaration, Comcast’s attorney described the time she spent litigating Lan I and attached time records. Lan’s opposition did not address Comcast’s entitlement to attorney fees, except to argue Comcast could not recover such fees because his “unpaid wage claim” was “still in appeal processes.” Lan did not contest the tentative ruling and it became the court’s final decision. The court partially granted the motion and awarded Comcast $77,400 in section 98.2 attorney fees. It determined the attorney fees were reasonable and that “a significant portion” of the “fees were incurred dealing” with Lan’s “unorthodox tactics[.]” The court later denied Lan’s motion to vacate the attorney fee award. DISCUSSION Section 98.2, subdivision (c) provides: “If a party seeking review by filing an appeal to the superior court is unsuccessful in the appeal, the court shall determine the costs and reasonable attorney’s fees incurred by the other parties to the appeal, and assess that amount as a cost upon the party filing the appeal.” The “‘purpose and intent behind section 98.2(c) is to discourage frivolous and unmeritorious appeals from the commissioner’s awards, regardless of whether they are taken by employers or employees.’ [Citation.]” (Arneson v. Royal Pacific Funding Corp. (2015) 239