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Filed 11/22/13 Jiang v. Wang CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO

ZHI CAI JIANG,

Plaintiff and Respondent,

v.

SUO SHAN WANG et al.,

Defendants and Appellants.

 A136974

 (Alameda County

 Super. Ct. No. FG-11-587898)

Following a two-day bench trial, the court entered a judgment awarding plaintiff 

Zhi Cai Jiang $7,677.12 for unpaid overtime wages and $4,000 for a violation of Labor 

Code section 226 by his former employers, defendants Tsuo Shan Wang and Palace Chef

restaurant (collectively “defendants”). On the “Business Defamation” cause of action 

alleged in Palace Chef’s cross-complaint, the court awarded damages of $10. The court 

then awarded Jiang “reasonable statutory attorney fees in the amount of $33,180.” 

Defendants appeal from the judgment and the fee order. They contend: (1) the court 

“incorrectly calculated” the amount of overtime wages due Jiang; (2) the court also 

“incorrectly applied” Labor Code section 226; (3) the court “abused its discretion in 

finding a lack of proof with regards to Wang’s assault and battery claims”; (4) the amount 

of attorney fees awarded to Jiang was “unreasonable”; and (5) because they prevailed on 

their claim for business defamation, they were entitled to attorney fees and punitive 

damages. We conclude none of these claims has merit, and we affirm.
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BACKGROUND

The judgment recites that the trial court “heard testimony and considered evidence 

submitted by the parties” at the two-day bench trial. Wang and Palace Chef have not 

included a reporter’s transcript of the trial. In light of this decision, we must treat their 

appeal as an appeal “on the judgment roll.” (Allen v. Toten (1985) 172 Cal.App.3d 1079, 

1082-1083.) “On such an appeal, ‘[t]he question of the sufficiency of the evidence to 

support the findings is not open.’ ” (Id. at p. 1082.) Instead, we presume that all findings 

by the trial court are supported by substantial evidence, and we can only consider 

whether the judgment is supported by the findings or whether reversible error appears on 

the face of the record. (Fitch v. Pacific Fid. Life Ins. Co. (1975) 54 Cal.App.3d 140, 143, 

fn. 1 [“This appeal is based upon only the clerk’s transcript and, as such, is considered to 

be on the judgment roll alone. [Citation.] Hence the trial court’s findings and 

conclusions of law are presumed to be supported by substantial evidence and are binding 

upon us, unless the judgment is not supported by the findings or reversible error appears 

on the face of the record.”].) “ ‘In a judgment roll appeal every presumption is in favor 

of the validity of the judgment and any condition of facts consistent with its validity will 

be presumed to have existed rather than one which will defeat it.’ ” (Estate of 

Kievernagel (2008) 166 Cal.App.4th 1024, 1031.)

To judge by certain recitals in subsequent documents, at the end of the two-day 

trial the court made a number of findings concerning the weekly number of hours Jiang 

worked (i.e., 49.5), and (quoting from plaintiff’s posttrial brief) “invited briefing on the 

implication of these factual findings to the issue of damages.” Aided with that briefing, 

the court then filed its statement of decision.

On the two causes of action which it determined in Jiang’s favor, the court’s 

statement of decision reads as follows:

“The court finds that Plaintiff actually worked 8-1/4 hours five days a week and 

worked 7-3/4 hours on a sixth day of each week. Plaintiff was paid a ‘salary’ of 

$1700 per month and was paid on a semi-monthly basis. Plaintiff’s salary computes to a 

total of $392.31 per week and computes to $8.01 per hour. . . . 
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“Second Cause of Action

“The Court finds that the plaintiff is entitled to an award for defendants’ failure to 

pay overtime wages to plaintiff for hours worked in excess of eight hours per day or the 

excess of forty hours per week. (See Labor Code § 510.) The amount of uncompensated 

overtime wages computed as follows:

“($1700 X 12) 52=$9.81

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“(1.5 X $7.81) - $8.01 = $6.71 per hour OT differential

“9 hours/week X $6.71 X 104 weeks = $6,280.56

“Interest, accumulating on a semimonthly basis, since July 31, 3009 computes to 

an interest award on the overtime wages of $1,396.56, this results in an award to plaintiff 

on the second cause of action in the amount of $7,677.12. [¶] . . .[¶]

“Fifth Cause of Action

“The court finds the defendants did not keep records of the plaintiff’s wages and 

hours. The defendants’ evidence does not persuade the court that the defendants were 

unintentional or not knowing in such failure. The fact that the plaintiff is an illegal alien 

who insists on payment of wages in cash does not excuse an employer from the 

obligations found in Labor Code § 226. Plaintiff is awarded the sum of $4000.00 on this 

cause of action.”

Turning to the cross-complaint, the court determined as follows as to Palace 

Chef’s second cause of action:

“On the ‘Business Defamation’ cause of action, the evidence is clear that the 

plaintiff knowingly made false statements regarding the Palace Chef Restaurant and that 

there was damage to the cross-complainant caused by such false statements. The 

cross-complainant did not, however, demonstrate any liquidated amount of loss or other 

way to evaluate damages; the court awards the nominal damage amount of $10.00 to the 

cross-complainant on this cause of action.” 

Later the court issued its ruling on attorney fees as follows: “Plaintiff Zhi Cai 

Jiang’s Motion for Attorney Fees is GRANTED. As the prevailing party in this action, 
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the plaintiff is awarded reasonable statutory attorney fees in the amount of $33,180. (See 

Cal. Labor Code sections 1194(a) and 226(c). All hours expended by plaintiff’s counsel 

for litigation in this matter are reasonable as are counsel's hourly rates.” 

REVIEW

We first address those contentions that are most directly impacted by the 

limitations of this judgment roll appeal.

Wang’s Assault and Battery Claims Are Not

Demonstrated As A Matter Of Law

Defendants’ opening brief states that Wang “alleged an assault and battery on 

Plaintiff Jiang. In proving this cause of action, Wang lined up three different witnesses to 

testify on his behalf. Each would help to prove that Jiang did indeed assault and batter 

Mr. Wang. In addition, Wang and his witnesses, including staff and customers, 

consistently testified that Jiang was a heavy smoker; did not wash his hands after 

returning from smoking; coughed toward the dishes; stomped his foot with a dirty shoe 

into the cut beef; and yelled and attacked Mr. Wang. Even with all of this evidence, the 

judge himself testified at the end of the trial that ‘I’ve been observing Mr. Jiang through 

the trial and I did not see him cough at all.’ Based on this statement and his observation, 

he discredited the witnesses’ testimonies on the events. [¶] The judge abused his 

discretion here in finding against the Cross-Complaint. . . . The trial court judge failed in 

his duties to correctly evaluate the weight of the witnesses in this case. . . . [¶] Therefore, 

proper weight was not given to the witnesses for the Cross-Complaint and the trial judge 

abused his discretion in failing to acknowledge their importance to the case.”

The most obvious defect in this reasoning is that substantial evidence is not 

measured by the number of witnesses testifying for, or against, a given point. (People v. 

Rincon-Pineda (1975) 14 Cal.3d 864, 884-885 & fn. 8; Nichols v. Pacific Electric Ry. Co. 

(1918) 178 Cal. 630, 631-632; Fowden v. Pacific Coast Steamship Co. (1906) 149 Cal. 

151, 161.) Thus, the principle in Evidence Code section 412 that “the direct evidence of 

one witness . . . is sufficient for proof of any fact.” “Witnesses are not counted, but rather 

their testimony is weighed.” (Shannon v. Mt. Eden Nursery Co. Inc. (1933) 134 Cal.App.
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591, 592.) And it is the trier of fact, in this case the trial judge, who does the weighing, 

not this court. The same is true for which witnesses are to be found credible. “A 

reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.” 

(People v. Lindberg (2008) 45 Cal.4th 1, 27.) Even if this court were authorized to 

reweigh or reevaluate witness credibility, the absence of a reporter’s transcript would 

make such an inquiry impossible.

The Trial Court Did Not “Incorrectly”

Apply Labor Code Section 226

Defendants’ contention on this point is based on an admission by defendants that is 

breathtaking in its audacity—not to mention its abject disregard of the applicable law, 

which is not even mentioned in defendants’ opening brief. (See Batt v. City and County 

of San Francisco (2007) 155 Cal.App.4th 65, 82-83, fn. 9.) They argue that because 

Jiang is “an illegal immigrant” who wanted to be paid in cash, a desire in which they 

concurred for more than seven years, all parties were “involved in an illegal contract,” the 

claimed upshot of which is that “Defendants cannot be liable under § 226.” As the trial 

court recognized, this reasoning is faulty.

In 2002, the Legislature enacted Civil Code section 3339, Government Code 

section 7285, and Labor Code section 1171.5, each of which declare California public 

policy that “a person’s immigration status is irrelevant” to the application and

enforcement of “state labor . . . laws.” (Stats. 2002, ch. 1071.) “These statutes leave no 

room for doubt about this state’s public policy with regard to the irrelevance of 

immigration status in enforcement of state labor, employment, civil rights, and employee 

housing laws. Thus, if an employer hires an undocumented worker, the employer will 

also bear the burden of complying with the state’s wage, hour and workers’ compensation 

laws.” (Hernandez v. Paicius (2003) 109 Cal.App.4th 452, 460.)

Defendants next argue that “In all tort action[s], the Plaintiff owes a duty to the 

tortfeasor to mitigate damages,” and, because Jiang failed to do so, “he has lost the right 

to argue a violation under Lab. Code § 226.” This was not a tort claim, but a statutory 

one. Moreover, this court recently held that “It is the employer’s burden ‘to affirmatively 
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prove failure to mitigate as an affirmative defense.’ ” (Mize-Kurzman v. Marin 

Community College Dist. (2012) 202 Cal.App.4th 832, 871.) The record on appeal does

not include defendants’ answer, so it cannot be assumed that they even raised this 

affirmative defense. Finally, even if they did raise it, “the question whether an injured 

party acted reasonably to mitigate damages is a matter to be determined by the trier of 

fact and that the scope of review on appeal is circumscribed by the ‘any substantial 

evidence rule.’ [Citations.]” (Green v. Smith (1968) 261 Cal.App.2d 392, 397, 

fn. omitted.) On this limited record, defendants cannot establish that substantial evidence 

is lacking. (Allen v. Toten, supra, 172 Cal.App.3d 1079, 1082.)

The same is true of defendants’ argument that the applicable statute of limitations 

had expired. (See JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1526

[“the statute of limitations . . . can be waived if not asserted as an affirmative defense and 

proven”].) 

Although They Prevailed On Their Claim for ‘Business Defamation,’

Defendants Are Not Entitled To Attorney Fees And Punitive Damages

Defendants next claim that because they were awarded compensatory damages on 

their claim for “business defamation,” the trial court erred in not following through by 

awarding attorney fees and punitive damages. Defendants are wrong.

That the court awarded defendants the “nominal” damages of $10 does not 

necessarily demonstrate that they satisfied the statutory standard for punitive damages, 

proving “by clear and convincing evidence” that Jiang was “guilty of oppression, fraud, 

or malice.” (Civ. Code, § 3294, subd. (a); see Miller v. Elite Ins. Co. (1980) 

100 Cal.App.3d 739, 759.) “Exemplary or punitive damages are not recoverable as a 

matter of right. Their allowance rests entirely within the discretion of the jury,” or, in this 

case, with the trial court acting as the trier of fact. (Clark v. McClurg (1932) 215 Cal. 

279, 282.) Although the clear and convincing standard governs the trier of fact’s decision 

whether to award punitive damages, that decision is reviewed on appeal according to the 

substantial evidence standard. (Finney v. Lockhart (1950) 35 Cal.2d 161, 163-164; 

Stewart v. Union Carbide Corp. (2010) 190 Cal.App.4th 23, 34; Patrick v. Maryland 
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Casualty Co. (1990) 217 Cal.App.3d 1566, 1576.) Again, on this limited record, 

defendants cannot establish that the trial court’s decision not to award punitive damages 

does not have the support of substantial evidence. (Allen v. Toten, supra, 172 Cal.App.3d 

1079, 1082.)

“California follows the ‘American rule,’ under which each party to a lawsuit must 

pay its own attorney fees unless a contract or statute or other law authorizes a fee award.” 

(Douglas E. Barnhart, Inc. v. CMC Fabricators, Inc. (2012) 211 Cal.App.4th 230, 237; 

accord, Estate of Wong (2012) 207 Cal.App.4th 366, 374.) Defendants identify no 

contractual or statutory provision entitling them to recover attorney fees.

Defendants Do Not Demonstrate That The

Trial Court “Incorrectly Calculated”

Jiang’s Overtime

Defendants contend that “the overtime determination by the court was incorrectly 

calculated in Jiang’s favor.” Jiang submitted that he was due $13,221.62 in overtime pay. 

Defendants responded that, according to how Jiang’s hours of employment is calculated, 

he was owed either $3,408.28, or $5,010.50, or $6,686.58. The trial court awarded Jiang

$6,280.56, plus interest of $1,396.56, for a total of $7,677.12. Defendants maintain “This 

amount is incorrect for two reasons: first, the trial court incorrectly set Jiang’s hourly 

wage at an amount higher than he actually earned. Second, the numbers do not add up to 

the amount the court determined.”

Defendants do not dispute the trial court’s finding that Jiang’s monthly salary was 

$1,700. With Jiang’s salary being fixed—and undisputed—his hourly wage would 

obviously be a function of how many hours he worked for that $1,700. Based on the 

findings it announced at the end of the trial as to how many hours Jiang worked per week, 

the court determined that Jiang worked 9 hours overtime per week for the 104 weeks at 

issue. Defendants attempt to impeach this figure on the basis of figures they submitted to 

the court in their posttrial brief. These figures, all of which are predicated on the premise 

that defendants had already paid Jiang some overtime pay (“Actual payment for the 

overtime hours”), were obviously rejected by the trial court. Just what evidence the trial 
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court found more credible is not apparent from the judgment roll appeal, but we must 

deem it sufficient to sustain the trial court’s findings. (Allen v. Toten, supra, 

172 Cal.App.3d 1079, 1082.)

Defendants’second point cannot be so easily dismissed. Even Jiang concedes that 

in the second line of the court’s overtime formula contains an error, namely using the 

figure $7.81 instead of $9.81 (the amount of Jiang’s hourly wage produced by computing 

the hourly wage produced by dividing his monthly salary by the statutory work week of 

40 hours).

Actually, both of defendants’ points are largely answered by the following in 

Jiang’s posttrial brief: “As found by the trial court, plaintiff worked a total of 49.5 hours 

each week, or nine and a half hours of overtime. See Labor Code § 510(a). For a 

non-exempt full-time salaried employee as plaintiff, the regular hourly rate of pay is 

one-fortieth of the employee’s weekly salary. (See Lab. Code § 515(d)), with overtime 

assessed at one and a half times the regular hourly rate. Plaintiff’s regular hourly was 

therefore $9.81 ((($1,700/month X 12 months) / 52 weeks) / 40 hours), and his overtime 

rate was $14.71.

“Plaintiff’s uncompensated overtime from the end of July 2007 to the end of 

December 2007 was equal to $7.21 an hour (subtracting the prevailing minimum wage of 

$7.50 to avoid double recovery), and from January 1, 2008 through his departure in mid 

July was equal to $6.71 an hour (subtracting minimum wage of $8.00 an hour). Plaintiff 

worked 22 weeks in 2007 that are within the limitations period . . . , 52 weeks for each of 

2008 through 2010, and 28 weeks in 2011, a total of 206 weeks in which there were 

9.5 hours of uncompensated overtime each week, or 1,957 total hours. The total amount 

of overtime unpaid is equal to $13,221.62.”

The trial court made findings that were against Jiang (e.g., reducing the number of 

overtime hours to nine hours per week, eliminating 50 weeks), but it is clear that it 

accepted $9.81 as Jiang’s hourly pay, and only that figure accords with the rest of the 

court calculations. In the circumstances, “[t]his was an error of form, and not of 
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substance,” the result of “mischance” (Clark v. McClurg, supra, 215 Cal. 279, 285) that 

may be disregarded as nonprejudicial. (Cal. Const, art. VI, § 13.)

The Attorney Fee Award is not “Unreasonable”

Unlike defendants, Jiang was able to point to two statutes authorizing an award of 

attorney fees. Each of the two statutes governing the causes of action on which Jiang 

prevailed specify that a prevailing employee is “entitled” to an award of attorney fees. 

(Lab. Code, §§ 226, subd. (h), 1194, subd. (a).) After conducting an unreported hearing, 

the trial court granted Jiang’s application for an award of attorney fees in the amount of 

$33,180, expressly finding that “All hours expended by plaintiff’s counsel for litigation 

of this matter are reasonable, as are counsel’s hourly rates.” Defendants contend this 

award must be overturned as “unreasonable” in several respects. They are mistaken.

Attorney fees under these statutes are recoverable as a matter of right. (See 

Harrington v. Payroll Entertainment Services, Inc. (2008) 160 Cal.App.4th 589, 594.)

The standards governing review of a fee award are well-established: A “lodestar” 

method should be used to determine a statutory attorney’s fee award unless the statutory 

authorization for the award provides for another method. (Meister v. Regents of 

University of California (1998) 67 Cal.App.4th 437, 448-449.) “[T]he lodestar method 

vests the trial court with the discretion to decide which of the hours expended by the 

attorneys were ‘reasonably spent’ on the litigation. [Citation.] The lodestar amount is 

the product of the number of hours ‘reasonably spent’ and the reasonable rate.” (Id. at 

p. 449.) A party may be compensated for hours reasonably spent on recovering 

attorney’s fees. (Id. at p. 455.) However, if a fee request appears unreasonably inflated, 

the trial court may reduce the award or deny it altogether. (Id. at pp. 447-448.) A fee 

award must “bear some rational relationship to the amount of the substantive recovery.” 

(Bakkebo v. Municipal Court (1981) 124 Cal.App.3d 229, 236.) “The determination of 

an appropriate statutory fee award is committed to the trial court’s sound discretion and 

will not be disturbed unless the court abused this discretion and the appellate court is 

‘ “ ‘convinced’ ” ’ the ruling is ‘ “ ‘clearly wrong.’ ” ’ ” (Cates v. Chiang (2013) 

213 Cal.App.4th 791, 820-821.) Appellate court deference is appropriate because “[t]he 
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‘ “experienced trial judge is the best judge of the value of professional services rendered 

in his court . . . .” ’ ” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

Based on the fact that Jiang sought a much greater recovery than he received, 

defendants first argue that “the damages awarded are not reasonably proportionate to the 

amount of attorney’s fees sought.” We believe defendants are in effect making an 

apportionment argument, namely, that the trial court failed to limit Jiang’s fee award to 

only those parts of his litigation posture on which he prevailed.

As noted, Jiang’s entitlement to attorney fees was absolute.

“ ‘When a cause of action for which attorney fees are provided by statute is joined 

with other causes of action for which attorney fees are not permitted, the prevailing party 

may recover only on the statutory cause of action. However, the joinder of causes of 

action should not dilute the right to attorney fees.’ [Citation.] Upon determining an 

award of attorney fees . . . is appropriate under [a particular statute], apportionment of 

fees . . . similarly rests within the sound discretion of the trial court. . . . Apportionment 

is not required when the claims for relief are so intertwined that it would be 

impracticable, if not impossible, to separate the attorney’s time into compensable and 

noncompensable units. [Citations.]” (Bell v. Vista Unified School Dist. (2000) 

82 Cal.App.4th 672, 686-687.)

Because this is a judgment roll appeal, we can assume the trial court implicitly 

determined at apportionment was not possible. (Estate of Kievernagel, supra, 

166 Cal.App.4th 1024, 1031.) Such a determination would also be entitled to 

considerable deference because it would be based on what the trial court had observed of 

the two sides’ litigation strategies during the trial. (Ketchum v. Moses, supra, 24 Cal.4th

1122, 1132.) In the absence a more complete record, such an implicit determination 

cannot be condemned as clearly wrong and thus an abuse of the trial court’s discretion. 

(Cates v. Chiang, supra, 213 Cal.App.4th 791, 820-821; Fitch v. Pacific Fid. Ins. Co., 

supra, 54 Cal.App.3d 140, 143, fn. 1.)

Defendants next argue that “in calculating the lodestar amount, the court failed to 

consider whether Attorney’s Hourly Rate was reasonable.” In the face of the trial court’s 
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express finding the charged rates of Jiang’s attorneys were reasonable, this argument may 

be summarily rejected.

The same is true for defendants’ argument that the 90 hours claimed by Jiang's 

attorneys was “unreasonable.” We also note that billing 90 hours for two attorneys in a 

two-day trial is hardly preposterous on its face, and would easily come within the trial 

court’s discretion in evaluating the extent and worth of counsels’services. (Ketchum v. 

Moses, supra, 24 Cal.4th 1122, 1132.)

DISPOSITION

The judgment and the fee order are affirmed. Jiang shall recover his costs of 

appeal.

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Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.