Filed 8/25/22 Betancourt v. OS Restaurant Services CA2/8

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

RAQUEL BETANCOURT, 

Plaintiff and Respondent,

v.

OS RESTAURANT SERVICES, 

LLC et al.,

Defendants and Appellants.

 B293625

 (Los Angeles County

 Super. Ct. No. BC629916)

APPEAL from a judgment of the Superior Court of Los 

Angeles County. Deirdre H. Hill, Judge. Affirmed.

Raines Feldman, Lauren J. Katunich, Robert M. Shore and 

Leticia M. Kimble for Defendants and Appellants.

Felahy Employment Lawyers, Allen Felahy; Yash Law 

Group and Yashdeep Singh for Plaintiff and Respondent.

__________________________
2

SUMMARY

This case is before us on remand from the Supreme Court. 

The Labor Code mandates an award of reasonable attorney 

fees to the prevailing party in any action brought for the 

nonpayment of wages, if any party requests attorney fees at the 

initiation of the action. (Lab. Code, § 218.5, subd. (a).) (Further 

statutory references are to the Labor Code unless otherwise 

specified.) Here, the trial court awarded plaintiff $280,000 in 

attorney fees under section 218.5, and the employer appealed the 

award.

The only wage and hour claims alleged and litigated by the 

parties were for rest break and meal period violations (§ 226.7), 

and claims for penalties (waiting time penalties under 

section 203 and wage statement violations under section 226) 

based on the rest break and meal period violations. In our 

original opinion, we held, following Kirby v. Immoos Fire 

Protection, Inc. (2012) 53 Cal.4th 1244, 1255 (Kirby), that an 

action brought for failure to provide rest breaks or meal periods 

(§ 226.7) is not “an ‘action brought for the nonpayment of wages’ ” 

within the meaning of section 218.5. (Kirby, at p. 1255.) We also 

held that a plaintiff could not recover penalties for waiting time 

and wage statement violations based on claims of rest break and

meal break violations, and so could not recover attorney fees 

based on those penalties.

In Naranjo v. Spectrum Security Services, Inc. (2022) 

13 Cal.5th 93 (Naranjo), the Supreme Court held otherwise. The 

court concluded that “extra pay for missed breaks constitutes 

‘wages’ that must be reported on statutorily required wage 

statements during employment (Lab. Code, § 226) and paid 
3

within statutory deadlines when an employee leaves the job (id., 

§ 203).” (Naranjo, at p. 102; ibid. [the extra pay is “designed to 

compensate for the unlawful deprivation of a guaranteed break,” 

but “also compensates for the work the employee performed 

during the break period”].) After issuance of its opinion, the 

Supreme Court transferred this case to us with directions to 

reconsider our opinion in light of Naranjo.

Having done so, we affirm the award of attorney fees.

FACTS

Defendants are OS Restaurant Services, LLC and Bloomin’ 

Brands, Inc. They are the owners or operators of a Fleming’s 

Steakhouse & Wine Bar on Olympic Boulevard in Los Angeles. 

Plaintiff Raquel Betancourt worked there as a server from 2008 

through 2015.

1. The Complaint

In August 2016, plaintiff sued defendants. The complaint 

alleged defendants regularly failed to give plaintiff her full 

uninterrupted rest periods, and that defendants wrongfully 

terminated plaintiff in retaliation for her making internal 

complaints that defendants violated wage and hour laws and food 

safety laws.

Plaintiff alleged she saw a chef using a vegetable cutting 

board to prepare raw chicken, and reported the incident to her 

manager, but defendants ignored her report. Three months later, 

plaintiff informed Tiffany Yeargin, defendants’ senior human 

resource business partner, that one of the chefs routinely used 

vegetable cutting boards to prepare raw chicken, and that 

employees were regularly denied their 10-minute rest periods.

Immediately following plaintiff’s complaints to 

Ms. Yeargin, defendants’ managerial employees began to 
4

retaliate by “highly scrutinizing Plaintiff’s performance” and 

singling her out for discipline for spurious reasons. Defendants 

continued to prevent her from taking her 10-minute rest periods. 

Ms. Yeargin ignored plaintiff’s complaints about the retaliatory 

actions.

The complaint alleged that in December 2015, defendants 

issued plaintiff a formal written reprimand “based upon false and 

fabricated accusations of insubordination, which resulted in 

Plaintiff’s suspension.” After that, plaintiff again informed 

Ms. Yeargin of the retaliation and requested the reprimand be 

removed from her employment record, but her request was 

denied. 

“[I]n further retaliation against Plaintiff for her 

whistleblowing activities,” defendants terminated plaintiff’s 

employment. “To date, Defendants have refused to pay Plaintiff 

all wages earned and unpaid at the time of her termination; 

including, without limitation, unpaid rest period premiums.”

Plaintiff alleged causes of action for retaliation and 

wrongful termination because of her reports of rest break and 

food safety violations. She also alleged she was entitled to 

recover unpaid premium wages under section 226.7 for the rest 

break violations; penalties, costs and attorney fees under 

section 226 for failing to include rest break premiums on her 

itemized wage statements; and waiting time penalties under 

sections 201 through 203 for failure to pay all wages on 

termination, “including, without limitation, unpaid premium 

wages in lieu of rest periods.”
5

The prayer for relief requested attorney fees under 

sections 218.5 and 226, Code of Civil Procedure section 1021.5, 

“and any other applicable provisions of law.”1

2. The Litigation

Defendants answered the complaint in October 2016. 

Discovery ensued. Two days after the trial court issued a 

tentative ruling on October 11, 2017, compelling plaintiff to 

comply with discovery requests and awarding sanctions against 

her, and one day after plaintiff produced more than 1,000 

previously withheld documents, the parties settled the case. 

About a month before the settlement, the parties had stipulated 

the complaint could be amended to add a cause of action for meal 

period violations.

3. The Settlement

The parties put the terms of their settlement agreement on 

the record in open court on October 13, 2017. Defendants agreed 

to waive plaintiff’s payment of sanctions and to pay plaintiff 

$15,375 in full settlement of her claims for failure to provide meal 

and rest periods under section 226.7, failure to provide accurate 

itemized wage statements under section 226, failure to pay all 

wages upon termination under sections 201 through 203, and 

1 Section 218.5 states in part: “In any action brought for the 

nonpayment of wages, fringe benefits, or health and welfare or 

pension fund contributions, the court shall award reasonable 

attorney’s fees and costs to the prevailing party if any party to 

the action requests attorney’s fees and costs upon the initiation of 

the action. However, if the prevailing party in the court action is 

not an employee, attorney’s fees and costs shall be awarded 

pursuant to this section only if the court finds that the employee 

brought the court action in bad faith.” (Id., subd. (a).)
6

“any and all wage-and-hour-related causes of action that were or 

could have been asserted in the complaint.” Plaintiff agreed to 

dismiss with prejudice and without any payment her claims for 

retaliation and wrongful termination. The parties agreed 

plaintiff could later file a motion for attorney fees incurred only 

on her wage and hour claims, “consistent with applicable law.” 

4. Plaintiff’s Motion for Attorney Fees

Plaintiff then sought $580,794 in attorney fees (and costs of 

more than $16,000), under sections 218.5 and 226. This consisted 

of a lodestar amount of $387,196 and a multiplier of 1.5. No time 

records were provided to the court, but plaintiff’s counsel said 

869.6 hours were incurred by his firm at various hourly rates.

Plaintiff contended her wage and hour claims were “closely 

intertwined” with her retaliation and wrongful termination 

claims, so she was entitled to recover all of her fees and costs.

Defendants opposed the motion, contending that, among 

other reasons, Kirby and its progeny dictate that a party cannot, 

as a matter of law, recover attorney fees when she prevails only 

on a claim for meal or rest break premium pay. Defendants also 

contended plaintiff’s claims of retaliation and wrongful 

termination were the crux of her case, and virtually all discovery 

was focused on those claims. Defendants gave multiple examples

of discovery disputes requiring them to seek court intervention, 

none of which was relevant to meal and rest break claims, and 

many of which were directed at plaintiff’s claims for economic 

damage flowing from her retaliation and wrongful termination 

claims. Defendants referred to the court’s October 11, 2017

tentative ruling stating that plaintiff “has wrongfully withheld 

documents” and that plaintiff and her counsel “have engaged in 

repeated abuses of the discovery process for months.” Defense 
7

counsel’s declaration stated that on October 12, 2017, plaintiff 

finally produced more than 1,100 probative documents that were 

highly damaging to her case and credibility.

Defense counsel also attached plaintiff’s July 18, 2017 

settlement demand. In that demand, plaintiff’s counsel valued 

her case at $750,000. Of that total sum, plaintiff’s counsel valued 

the rest break and the derivative wage statement and waiting 

period penalty claims at less than $13,000.

Plaintiff came up with a new theory for recovery of all her 

attorney fees in her reply to defendants’ opposition to the motion 

for attorney fees. She asserted—for the first time—that

“[d]efendants’ own payroll and timekeeping records demonstrate 

that Plaintiff was not paid for all hours worked; and that it was 

part of Defendants’ timekeeping scheme to unilaterally 

reduce/adjust Plaintiff’s timesheets in order to avoid paying 

Plaintiff for all hours worked and all earned overtime.”

The declaration of plaintiff’s counsel attached copies of 

defendants’ timekeeping spreadsheets and one of plaintiff’s wage 

statements. Plaintiff’s counsel opined that his analysis of these 

documents showed plaintiff “was shorted .49 total hours, and 

virtually all of this is overtime.” Plaintiff’s counsel further 

opined the timekeeping spreadsheets showed “unilateral 

downward adjustments,” and “[t]here were 47.82 total hours lost 

to ‘adjustments.’ ” Counsel did not state, in the reply papers or in 

any subsequent filings, when he had performed this analysis, i.e., 

whether he performed the analysis before filing the motion for 

attorney fees, or only after getting defendants’ opposition 

asserting the focus of the litigation had been on the retaliation 

and wrongful termination claims.
8

At the January 26, 2018 hearing on the motion for fees, the 

court heard argument and continued the hearing for further 

briefing. The parties filed additional briefs, declarations and 

evidentiary objections. There were several more continuances 

following further hearings on the motion. 

In supplemental papers, plaintiff’s counsel reiterated 

plaintiff’s position that all the time billed was inextricably 

intertwined with her wage and hour claims. However, counsel 

reexamined the billing “to identify discrete tasks to which I can 

state with reasonable certainty were devotedly almost entirely to 

the non-wage claims,” and stated he was able to identify 

approximately 10 percent of the hours incurred by his firm that 

were “devoted primarily to prosecution of the wrongful 

termination/retaliation claims without regard to the underlying 

wage issues.” Counsel reduced the fee request by 10 percent from 

the lodestar of $387,196 to $348,476.40, and did not request a 

lodestar multiplier. In later-filed supplemental papers, plaintiff 

sought another $48,914 for work performed in litigating the fee 

application since filing that motion, for a total of $397,390. No 

time records were ever supplied.

Defendants continued to assert there was no evidence that 

plaintiff raised, litigated, and expended attorney fees on any 

theory of wage liability other than meal and rest breaks for which 

attorney fees could not be awarded. Defense counsel’s 

declaration also stated that plaintiff’s interpretation of the pay 

records was wrong, because her counsel looked at the wrong 

column for hours worked; and adjustments were made because of 

failure to clock out at the end of a shift, as confirmed on other 

time reports produced in discovery.
9

On July 13, 2018, without calling the case for hearing, the 

court granted the motion for attorney fees in the amount of 

$280,794 (and costs of $8,671.95) and set an order to show cause 

regarding dismissal for August 31, 2018. The court ruled that, 

although “some aspects” of plaintiff’s wage statement and waiting 

penalty claims “are seemingly derivative of the Section 226.7 

claim, Plaintiff has proffered evidence that establishes that 

[those claims] were also premised on timekeeping and payroll 

schemes . . . and Plaintiff is thusly entitled to attorneys’ fees 

pursuant to Labor Code § 218.5. Further, the settlement 

agreement is broad in scope and includes all wage and hour 

claims.”

The court found counsel’s apportionment of 90 percent of 

the work to the underlying wage issues “sufficient for 

apportionment purposes,” citing counsel’s declaration quoted 

above. The court found the number of hours incurred was 

unreasonable, the hourly rates were high, and $280,794 was a 

reasonable fee award. The court did not explain how it derived 

that figure.

Plaintiff submitted a proposed judgment pursuant to the 

terms of the settlement (Code Civ. Proc., § 664.6). Defendants 

objected to the proposed judgment on the ground plaintiff did not 

request fees for an eligible claim in her initial pleading, and 

defendants were not given an opportunity to argue the attorney 

fee motion before the court, although it had been continued for 

hearing after defense counsel’s pregnancy leave ended. 

The court overruled defendants’ objection and entered 

judgment on August 31, 2018, in the principal sum of $15,375, 

plus attorney fees of $280,794 and costs of $8,671.95.
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DISCUSSION

1. A Prefatory Note

We begin with an explanatory note. The trial court 

apparently concluded (as we did in our original opinion) that to 

the extent plaintiff’s wage statement and waiting penalty claims 

were derivative of her rest break claims, they could not support 

an attorney fee award. Instead, the trial court justified the 

award by relying on evidence plaintiff proffered with her reply 

papers, purporting to show that her wage statement and waiting 

penalty claims “were also premised on timekeeping and payroll 

schemes,” thus entitling plaintiff to fees on that basis. (Italics 

added.) This justification was erroneous. As we held in our 

original opinion, the trial court’s finding on “timekeeping and 

payroll schemes” was not supported by the record.

2 Naranjo does 

not affect our conclusion on that issue, but the timekeeping issue

is now beside the point. Naranjo’s holding that premium pay for 

missed breaks constitutes wages and must be reported on wage 

statements and paid within statutory deadlines when an 

employee is discharged (Naranjo, supra, 13 Cal.5th at p. 102),

fully justifies the trial court’s attorney fee award under 

section 218.5. And, of course, the court’s ruling must be affirmed 

if it is correct on any theory.

2 We see no reason to repeat our discussion on that point. In 

the trial court litigation, plaintiff made no claim for nonpayment 

of wages other than the rest break and meal period claims and 

the derivative penalties until filing her reply papers. We found 

no evidence plaintiff’s counsel ever expended any attorney time 

on “timekeeping and payroll schemes,” except in preparation of 

the reply papers.
11

2. The Naranjo Decision

We need not discuss Naranjo in any detail, as its holding, 

described at the outset, is clear: “extra pay for missed breaks 

constitutes ‘wages’ that must be reported on statutorily required 

wage statements during employment (Lab. Code, § 226) and paid 

within statutory deadlines when an employee leaves the job (id., 

§ 203).” (Naranjo, supra, 13 Cal.5th at p. 102; see also id. at 

p. 112 [“an employee suing for failure to pay wages by the 

deadline established in [sections 201 and 202] is suing for 

nonpayment of wages for purposes of an attorney fee award 

under Labor Code section 218.5,” citing Kirby, supra, 53 Cal.4th

at p. 1256; Naranjo, at p. 117 [“missed-break premium pay 

constitutes wages for purposes of Labor Code section 203, and so 

waiting time penalties are available under that statute if the 

premium pay is not timely paid”]; id. at p. 121 [“failure to report 

premium pay for missed breaks can support monetary liability 

under section 226 for failure to supply an accurate itemized 

statement”].)

Here, plaintiff’s complaint sought penalties, costs and 

attorney fees under section 226 for failing to include rest break 

premiums on her itemized wage statements; and waiting time 

penalties under sections 201 through 203 for failure to pay all 

wages on termination. These were claims for nonpayment of 

wages. Under section 218.5, the court must award the prevailing 

party reasonable attorney fees and costs “[i]n any action brought 

for the nonpayment of wages,” if any party requested fees and 

costs at the beginning of the action (§ 218.5, subd. (a); see fn. 1), 

as plaintiff did.
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3. Contentions and Conclusions

In defendants’ briefing in this case—before the Naranjo 

decision—defendants contended the trial court erred in awarding 

any attorney fees to plaintiff, because her complaint did not 

allege any conduct that could serve as the legal basis for a fee 

award under section 218.5; the parties’ settlement agreement 

provided no other basis for a fee award because plaintiff was 

entitled only to seek fees “consistent with applicable law”; and 

there was no evidence that plaintiff’s counsel spent any time on 

any claim for nonpayment of wages. 

After Naranjo, none of defendants’ earlier arguments 

supports reversal of the attorney fee order. Naranjo establishes a

clear legal basis for the award; the settlement agreement permits 

an award “consistent with applicable law”; and there is evidence 

of counsel time spent on claims for nonpayment of wages as 

construed in Naranjo (beginning, as we have seen, with the 

complaint). As Naranjo tells us, extra pay for missed breaks 

“constitutes wages subject to the same timing and reporting rules 

as other forms of compensation for work.” (Naranjo, supra, 

13 Cal.5th at p. 102.) Indeed, defendants do not argue otherwise 

in their supplemental brief. 

Instead, defendants now offer two reasons why we should 

again reverse the attorney fee award. Neither of them has merit. 

First, defendants say plaintiff offered “no admissible 

evidence” that a wage statement violation “occurred at all, and no 

evidence that any conceivable violation was willful.” They 

contend their “offer to compromise”—the settlement agreement—

is inadmissible “as evidence that Defendants were in fact liable 

on those claims,” citing Evidence Code section 1152, subdivision 
13

(a) (offer to compromise is inadmissible to prove liability). We are 

not persuaded. 

Defendants agreed to a stipulated settlement, paying 

$15,375 “for full and final resolution” of plaintiff’s wage-and-hour

related claims, and “judgment pursuant to stipulation for entry of 

judgment” was rendered in favor of plaintiff. Plaintiff was thus 

the prevailing party, and section 218.5 requires the court to 

“award reasonable attorney’s fees and costs to the prevailing 

party . . . .” (Id., subd. (a).) The parties settled their dispute over 

whether defendants were in fact liable for rest break violations, 

wage statement violations and waiting time penalties, including 

whether any wage statement violations were knowing and 

willful, and defendants cannot now claim that, for an award of 

attorney fees, plaintiff must prove her case.

Second, defendants contend that in the trial court plaintiff

“tacitly” abandoned “any wage-statement claim based on a restbreak violation,” and expressly abandoned the claim in this court, 

and that this constitutes a waiver which we should enforce. We 

do not agree. While plaintiff came up with a new theory for 

recovery of her attorney fees for which there was no substantial 

evidence—claims of shortages in wages that were not based on 

rest break violations—defendants cite no evidence she “expressly 

abandoned” or waived the claim on appeal that wage statement 

violations and waiting time penalties based on failure to pay for 

rest breaks would also support her fee request. Plaintiff stated

more than once in her initial respondent’s brief that her causes of 

action were not “solely derivative of [her] rest period cause of 

action.” (Italics added.) That is not a waiver of her claims based 

on rest break violations.
14

Defendants also argue that waiver is “particularly 

appropriate in this case” because plaintiff succeeded in obtaining 

the sizeable attorney fee award by making “a factual 

representation to the trial court that 90% of her attorney time 

was incurred litigating timekeeping theories.” That is a 

distortion of counsel’s statement. Plaintiff throughout took the 

position that all the time billed on her case, “including time 

which pertained to her wrongful termination/retaliation claims, 

has been inextricably intertwined with her wage & hour claims.” 

She did not represent that 90 percent of her attorney time was 

spent on timekeeping theories.

Finally, defendants say the record shows “the vast majority 

of [plaintiff’s] attorney time was incurred litigating the wrongful 

termination and retaliatory discharge claims that she 

indisputably lost”; she should not be allowed to “rewrite history” 

by arguing “that any significant amount of time was incurred 

litigating her wage-statement claim”; and consequently, we 

should enforce her “express waiver.” As we have said, there was

no “express waiver.” Moreover, plaintiff consistently took the 

position that her unpaid wage claims were “inexorably 

intertwined with the Whistleblower allegations inasmuch as she 

contends that the complaints about wages were what led to her 

termination.” Similarly, the trial court recounted plaintiff’s 

argument that “the claims are intertwined because plaintiff had 

to establish her wage and hour claims in order to establish the 

reasonableness of reporting defendant’s unlawful practices and 

policies.” And, the trial court expressly accepted the declaration 

of plaintiff’s counsel that only about 10 percent of the time spent 

“has been devoted primarily to prosecution of the wrongful 

termination/retaliation claims without regard to the underlying 
15

wage issues.” (Italics added.) We cannot substitute our judgment 

on this point for that of the trial judge, who presided over this 

case from the outset. 

DISPOSITION

The judgment is affirmed. Plaintiff shall recover costs on 

appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.