Filed 11/25/14 Hines v. Premier Power Renewable Energy CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

DAVID HINES, Plaintiff and Respondent,

v.
PREMIER POWER RENEWABLE ENERGY, INC., Defendant and Appellant. G049912
(Super. Ct. No. CIVDS1017426)

O P I N I O N

Appeal from a judgment of the Superior Court of San Bernardino, Brian S. McCarville, Judge. Affirmed and remanded. Acker & Whipple, Stephen Acker and Leslie Anne Burn et for Defendant and Appellant.
Law Offices of Thomas N. Jacobson and Thomas N. Jacobson for Plaintiff and Respondent.2 A jury awarded David Hines $58, 977.03 against his former employer Premier Power Renewable Energy, Inc. (Premi er). The trial court denied Premier’s motion for a judgment notwithstanding the ve rdict (JNOV) and motion for new trial. After denying Premier’s motion to tax costs, the court awarded Hines $9,267.64 for costs and $122,378 for attorney fees . On appeal, Premier mainta ins the judgment must be
reversed because the verdict contains inte rnally inconsistent findings and there was insufficient evidence to suppor t the verdict and the amount of damages awarded. Premier asserts the court erred in deny ing its motion for nonsuit, ad mitting into evidence exhibit No. 89, denying the JNOV, denying the motio n for new trial, denying the motion to tax costs and granting Hines’s motio n for attorney fees. Finding all the contentions lack merit, we affirm the judgment and remand the matter for the trial c ourt to determine the amount of attorney fees recove rable by Hines in this appeal.
I Premier sells and installs solar pane ls on residential homes and commercial structures. In April 2008, Pr emier hired Hines to expand its sales of solar panels in Southern California. Initially, he was the onl y employee making sales for the company in the Southern California territory. The parties executed a contract titled , “Premier . . . incentive compensation plan for Southern California sales manage r/solar consultant 2008” (capitalization omitted; hereafter, the Agreemen t). The “Introduction” to the contract provided, “The following incentive [c]omp ensation plan offered to . . . Hines for a [s]olar [c]onsultant position is effective from [April 14, 2008,] and expires on [December 31, 2008,] to encourage superior sales performance. The minimum quota for each [s]olar [c]onsultant will be $2 million in total booked sales for each year the plan is in effect. The goal for each [s]olar [c]onsultant will be [$]3 million per year.” The Agreement next provided a “[g]en eral description” of the incentive compensation plan. This sec tion began with the following st atement: “This is an At-Will3 agreement and may be terminated at any tim e, without cause, by either party.” The paragraph then described the nature of a nd schedule for commission payments. “A current [s]olar [c]onsultant will only rece ive a commission after the initial down payment and the first progressive payment equal to or gr eater than 25 [percent] of the total cost of [the] system has been received, 50 [percent] of the total commission is due and payable the next pay period after the deposit and the [fi rst] progressive payment have been made. The remaining 50 [percent] of commission will be due and pa yable as described in the [c]ommission [i]nstallments section of this compensation plan. Commission earnings are based on the total sales price generated from sales of products, after applying discounts/charge back, if any. [Premier] will provide leads to [the s]olar [c]onsultant as they become available at no ch arge to the consultant.” Under the terms of the Agreement, Hines was to receive an annual base salary of $35,000. “For all single sa les of $300,000 to $700,000 the following commission rates” applied: (1) a 5 percen t “base commission rate” for sales up to $300,000; (2) a possible 3 pe rcent commission rate for sales between $300,000 to $700,000 unless it was “a comme rcial sale over 36kWDC”; (3) “[u]p to 1 [percent]
override on all sales other than personal sales in Arizona, San Bernardino, Riverside and [Los Angeles] counties depending on the ma rgin”; and (4) “[a] possible 1 [percent] commission on ‘self generated leads[.]’” The Agreement further explained, “An active [s]olar [c]onsultant will beco me eligible for benefits when a total of $375,000[] of
booked sales is achieved.” It defined a boo ked sale as having a $1,000 down payment and a first “progressive payment equal to or gr eater tha[n] 25 [percent] of the total cost of [the] job and the rescission date has passed.” The Agreement provided there would be “charge backs” for cancellations. “Any sales contract canceled fo r any reason, and 1) the [c]o mpany has not been paid in full, or 2) there is a refund due to the customer, the [s]ola r [c]onsultant’s commission for4 the canceled sale will be deduc ted from the [s]olar [c]onsulta nt’s [c]ommission [e]arnings at the same commission rate that was paid.”
Premier terminated Hines from his employment on March 9, 2009. He filed a wrongful termination complaint on D ecember 27, 2010, alleging the following: (1) breach of contract; (2) br each of the covenant of good faith and fair dealing; (3) “violation of public policy” as expresse d in the Labor Code, i.e., nonpayment of wages; (4) intentional infliction of emotional distress (IIED); and (5) an accounting. In addition, Hines requested attorney fees and punitive damages with re spect to the second
and third causes of action. Hines attached a copy of the Agreemen t to his complaint and explained that in addition to a base salary of $35,000 per year plus commiss ions, he “was to be paid a portion of what was referred to as ‘overages .’” He alleged, “Overages were amounts received by . . . Premier, in exce ss for the sales goals for each project.” Hines stated that from April 2008 to January 2 009 he was told by his superi ors that his performance was exemplary. In early 2009, Hines was told he was being “termi nated due to poor performance and failure to make appointments.” Hines claime d this was simply untrue. Premier moved to strike the pu nitive damages allegations from the complaint. The trial court gr anted the motion with respect to the second cause of action (breach of the implied covenant of good faith and fair de aling), and denied the motion with respect to the third cause of action (violation of public policy pursuant to the Labor Code). Before trial, the parties submitted tria l briefs. In his brief, Hines alleged that before working for Premier, he and his wife were both employed and supported their two young daughters. They decided to gi ve up their jobs based on Premier’s representation the company was offering Hines “a lifetime career path.” Hines explained he was promised many things, some of whic h were included in th e Agreement (discussed above). Hines explained other things were orally promised by Premier’s president,5 Dean Marks, such as “[a]n overage equal to 50 [percent] on all sums included in the sales price above the company’s estimate or goal for the sale of the job.” In addition, Hines knew Premier was “planning to go public” a nd he would be “gifted stock in the corporation.” In his trial brief, Hines explained he began working for Premier from his
home because Premier did not have an office fo r him. He used his own resources to pay for many business expenses. In May 2008 he hired Mark Markovich to assist him, and they worked together from Hines’s home. Hine s stated he worked long hours. He was a top sales performer. Hines explained that when he was gi ven an opportunity to study for and
take the contractor’s exam for solar contrac ting, he asked Marks if this would benefit Premier. Marks encouraged hi m to take the exam. In th e fall of 2008, Hines noticed Premier was not paying him correctly and aske d about it. Around this same time, he passed the contractor’s exam and began to feel “snubbed by upper management” and deprived of leads. Premie r began having meetings with Markovich and without him. Hines received a letter in March 2009 stating he was being terminated due to poor work performance. After being disc harged, Hines went into business for himself, but he did
not solicit Premier’s customers for his own business.
Premier’s trial brief stated Hines was an “at-will” employee who could be terminated at any time and with out cause. It asserted, how ever, Hines was fired for good cause because he engaged in misconduct and di d not perform his job duties. Specifically, he began setting up his own solar panel inst allation company in Oc tober 2008 and failed to carry out his job duties for Premier. It claimed Hines missed a mandatory company meeting, missed three sales appointments, and fa iled to timely provide a client with a bid. Premier asserted it did not breach the Agreem ent because Hines was paid everything he
was owed. It reasoned Hines was not entitled to commissions that became available after
his termination.6 At trial, Premier move d to exclude any argument or evidence Hines could
collect commissions due to cancelled cont racts. The court denied the motion. During the trial, the parties presente d evidence supporting the statements made in the trial briefs. In addition, Hi nes presented evidence there were numerous problems with the solar panel installations that directly affected his commissions. Specifically, the company was unable to timely install the panels and often installed them incorrectly. Many discontented customers cance lled their contracts or refused to provide good referrals. Markovich testified he no longer wo rked for Premier and now owned his own solar panel business. He explained that customer referrals were very important and estimated 85 to 90 percent of his work was referral business. He opined a job could be completed in 35 to 40 days bu t it took Premier months to co mplete their installations.
Markovich also testified that six months be fore Hines was terminated, Premier stopped giving Hines good leads. The company exec utives held meetings without Hines and steered work away from him. Markovich testified Carl Marino told him to rewrite contracts written by Hines so he would not be paid. Hines presented evidence he was not paid all the amounts owed to him. Hines presented evidence Premier’s employee handbook provided that after six months, employees were entitled to receive 80 vaca tion hours per year. The handbook also specified an employee’s final paycheck woul d include unused vacation pay. Hines was not paid for unused vacation time. Hines prepared exhibit No. 89 to help the jury calculate damages for unpaid commissions, overrides, and overages. He tes tified exhibit No. 89 contained a list of all his solar panel sale contracts. Hines stated he was not seeking commissions with respect
to customers who cancelled within their th ree-day rescission period or for reasons
unrelated to Premier’s misconduct. He e xplained he removed those numbers from his
commission calculations. Hines stated he wa s only seeking payment from sales contracts7 cancelled because of Premier’s negligence. Hines stated ex hibit No. 89 also contained calculations for the overages ow ed, calculated as the differe nce between the price of the system and the price of the actual contract. Hines explained he was promised 50 percent of this additional profit to the company. And finally, exhibit No. 89 contained a chart titled “Markovich override,” representing a summary of the solar panel contracts Markovich obtained, of which Hines wa s promised 1 percent commission. The jury was given special verdict fo rms related to each cause of action, separately titled Part I, II, III, and IV. Parts I and II referred to the first two causes of
action for breach of contract and breach of th e implied covenant of good faith and fair dealing. Part III asked the ju ry to determine if there was a “nonpayment of wages.” The jury did not indicate an amount of damages in Part I or II of the verdict. In Part III, it determined Premier owed Hines $1,538.46 fo r unpaid vacation, $28,443.70 for unpaid “overages,” and $28,841.02 for “unpaid commissions.” The final section of the special verdict, Part IV, asked the jury if Hi nes was entitled to “waiting-time penalty for nonpayment of wages.” (Capitalization omitte d.) On this form, the jury determined Premier willfully failed to pa y owed wages for a total of five days, and Hines’s daily wage rate was $153.85 per day. Premier moved for JNOV, a new trial, and to tax Hines’s costs. The trial court denied these motions and granted Hi nes’s motion for attorney fees, awarding $122,378. The court determined Hines co uld not collect prejudgment interest and ordered him to prepare a judgment. The co urt entered the final judgment on January 3, 2013, for $58,977.03 in damages, $122,378 for attorney fees, and $9 ,267.64 for costs.
II A. Were There Inconsistent Special Verdicts? Premier contends the judgment must be reversed because the jury returned inconsistent special verdicts on the th ree causes of action. It is wrong.8 “A special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.] If a verd ict appears inconsiste nt, a party adversely affected should request clarification, and the court should send the jury out again to resolve the inconsistency. (Code Civ. Pr oc., § 619; [citations].) If no party requests clarification or an inconsistency remains af ter the jury returns, the trial court must interpret the verdict in light of the jury instructions and the evidence and attempt to resolve any inconsistency. [Citations.] [¶] On appeal, we review a special verdict
de novo to determine whether its findings are inconsistent. [Citation.] With a special verdict, unlike a general verdict or a genera l verdict with special findings, a reviewing court will not infer findings to support the verdic t. [Citations.] ‘“‘Where the findings are contradictory on material issues, and the correc t determination of such issues is necessary to sustain the judgment, the inco nsistency is reversible error.’” [Citations.]’ [Citation.] ‘The appellate court is not permitted to choose betwee n inconsistent answers. [Citations.]’ [Citation.] The proper remedy for an inconsistent special verdict is a new trial. [Citation.]” ( Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Ca l.App.4th 338, 357-358, fn. omitted.)
Hines’s case focused on three causes of action, breach of contract, breach of the covenant of good faith and fair dea ling, and nonpayment of wages in violation of public policy. 1 The parties prepared separate speci al verdict forms as to each claim, labeled Part I, II, and III, respectively. Prem ier asserts the jury’s findings on the third claim (Part III) awarding damages, was inconsistent with its finding with respect to the other forms (Part I and II) for which the jury did not specify damages. We will address each verdict form separately, beginning with the third claim on which the jury based its damage award.

1 The IIED claim was dismissed during trial.9 i. Nonpayment of Wages With respect to the wage claim, the tr ial court instructed the jury with a version of CACI No. 2700 (esse ntial factual elements) modified only to insert the correct party names. The court instructed as follows : “Hines claims that [Premier] owes him unpaid wages. To establish this claim, . . . Hines must prove all of the following: “1. That . . . Hines perform ed work for [P remier]; “2. That [Premier] owes . . . Hines wages under the terms of the employment ; and “3. The amount of unpaid wages. [¶] ‘Wages’ includes all amounts for labor performed by an employee, whether the amount is calculated by time, task, piece, commission or some other method.” (Italics added.) The special verdict form pertaining to unpaid wages, called Part III, asked the jury about each of the above essential factual elements , as follows: (1) “Did . . . Hines perform work for [Premier]?”; and (2 ) “Does [Premier] owe . . . Hines wages, including vacation pay and/or unpaid overages (PAR), under the terms of the employment?” The jury answered “yes” to th ese two questions. Th e last question of Part III asked the jury “What is the amount of unpaid wages?” Next to the word “vacation” the jury entered th e amount $1,538.46. The jury filled in the sum of $28,443.70 next to the word “overages.” An d finally, the jury dete rmined the amount of “unpaid commissions” was $28,841.02. ii. Breach of Contract With respect to the breach of contra ct action the court instructed the jury using a modified version of CACI No. 303 , as follows: “To recover damages from [Premier] for breach of contract, . . . Hi nes must prove all of the following: “1. That . . . Hines and [Premier] entered into a contract; “2. That . . . Hines did all, or substantially all, of the significant things that the contact required him to do or that he was excused from doing those things; “3. That . . . Hines was harmed by that failure.”10 We note the original version of CACI No. 303 delineates two additional elements of proof. In add ition to Nos. 1 and 2 above, CA CI No. 303 requires proof “[3. That all conditions required by the co ntract for [name of defendant]’s performance [had occurred/[or] were excused];] [¶] [4. That [name of defendant] failed to do something that the contract require d [. . . it] to do; and] [¶] [or] [¶] [4. That [name of defendant] did something that the contract prohibited [ . . . it] fro m doing; . . .].”
Element 3 is used when the conditions for performance ar e at issue because if such conditions have been excused or pe rformed, the respective duties of the parties may be affected. Element 4 relates to the element of breach, i.e., the unjustified or unexcused failure to perform a contract. In th is case, the jury was not instructed on these
two elements. The special verdict form pertaining to the breach of contract claim (called Part I) proved problematic for the jury. Part I asked the jury to answer the following questions, and instructed, “[i]f you answered no [to any question], go to Part II.” “1. Did . . . Hines and [Premier] enter into a contract? [¶] Yes___ No___ [¶] . . . [¶] “2. Did . . . Hines do all, or substantially a ll, of the significant thin gs that the contract required him to do? [¶] Yes___ No___
“or “Was . . . Hines excused from having to do a ll or substantially all, of the significant things that the contract required him to do? [¶] Yes___ No___ [¶] . . . [¶] “3. Did all the conditions that were require d for [Premier’s] perform ance occur or were they excused? [¶] Ye s___ No___ [¶] . . . [¶] “4. Did [Premier] fail to do so mething that the contract requi red it to do?” [¶] Yes___ No___ [¶] . . . [¶] “5. Was . . . Hines harmed by that fa ilure? [¶] Yes___ No___ [¶] . . . [¶]
“6. “What are . . . Hines’s dama ges? [¶] TOTAL:____________”11 The jury answered “yes ” to the first two questions, concluding the parties entered into a contract and Hines did all, or s ubstantially all, of the significant things that the contract required him to do. It left blank the question asking if Hines was excused from having to do all the things required un der the contract. Thus , the jury found no issue with respect to Hines’s performance or his obligations unde r the contract. As directed by the modified jury instruction (C ACI No. 303), Hines could recover for breach
of contract if these two elements were satis fied (and if there was evidence of harm). The third question in Part I asked th e following compound question: “Did all the conditions that were require d for [Premier’s] performance occur or were they excused?” (Italics added.) Th e jury answered, “No.” It cannot be assumed the jury
answered “no” to whet her the conditions occurred or “no” to the issue of excuse. This question should have been broken into two pa rts as was done with question No. 2. In question No. 2, the jury was asked about Hi nes’s performance separately from whether his nonperformance was excused. Thus, if the jury had determin ed Hines failed to perform his duty under the contract, it could separately answer if his obligation was
excused. Contrary to Premier’s c ontention, the jury’s respon se to question No. 3 was not necessarily a finding in its favor. If the jury determined “no” the conditions did not
occur then Premier’s du ty did not become due and there could be no breach. If, however, the jury determined the conditions occurred and ther e was “no excuse” that would suggest the jury dete rmined the contract required Premier to perform. Under this interpretation, the jury should have continued answering th e other questions listed in Part I regarding breach and da mages. However, the jury followed the directions that instructed it to stop after answering “no” and proceed to Part II. We conclude the jury’s answer of “no” to the two-part question rend ers the special verdict form ambiguous (not inconsistent).12 We recognize Premier helped prepare the forms and made no objection they were incomplete or ambiguous before or afte r the jury was discharg ed. Hines argues the failure to object to the forms before the jury is discharged ma y forfeit any ambiguity or insufficiency in the verdict. ( Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131.) “However, waiv er is not automatic, and there are many exceptions. [Citations.] [¶] Waiver is not found where the record indicates that the failure to object was not the result of a desire to reap a ‘technical advantage’ or engage in a ‘litigious strategy.’ [Citation.]” ( Woodcock v. Fontana Scaffolding & Equip. Co. (1968) 69 Cal.2d 452, 456, fn. 2. ( Woodcock ).) We have no such evidence here and will
not deem the issue forfeited. “[W]here no objection is made before th e jury is discharged, it falls to ‘the trial judge to interpret the verdict from its language considered in connection with the pleadings, evidence and instructions.’ [Cita tions.] Where the trial judge does not interpret the verdict or interprets it errone ously, an appellate c ourt will interpret the verdict if it is possible to give a correct inte rpretation. [Citations.] If the verdict is hopelessly ambiguous, a reversal is required, a lthough retrial may be limited to the issue of damages. [Citations.]” ( Woodcock, supra, 69 Cal.2d at pp. 456-457.) In this case, the trial court was never told there were ambi guities in the jury verdict forms before they were given to the jury. The issue of ambiguity was not raised in Premier’s motion for new trial. Rather, Premier argued the jury’s responses were
inconsistent. In the motion, Premier argued the ju ry affirmatively determined Premier “fulfilled its contractual obligations.” The tria l court correctly rejected this argument. It is plain from the jury verd ict forms that the jury never answered the question , “Did
Premier breach the contract?” Indeed, the jury’s response of “no” to question No. 3 related to the issue of the preconditions fo r Premier’s performance, not whether Premier fulfilled its obligation under the contract. Because the issue wa s not raised or decided in the lower court, the correct interpretation of the jury’s answers in Part I of the special13 verdict form falls upon us to cons ider in the first instance. ( Woodcock, supra, 69 Cal.2d at pp. 456-457.) We conclude the verdict form is not hopelessly ambiguous because it is possible to give a correct interpretation based on the pleadings, evidence and instructions. (See Woodcock, supra, 69 Cal.2d at pp. 456-457.) The pleadings and evidence alleged
Premier made both written and oral promises to Hines conc erning compensation. The Agreement addressed the terms of Hines’s ba se salary, commission rate, and calculation of overrides. The employee handbook addresse d the issue of vacation pay. Hines alleged he was orally promised stock, overages, and other production bonuses. The instructions stated that to prove breach of a co ntract (oral or written) Hines need only prove there was a contract, he substantially performed all hi s obligations under the contract, and he was harmed. The jury answered th ese three questions in the a ffirmative in Parts I and III.
The two verdict forms can be reconciled becaus e Part I asks if there was a breach of the terms of employment and Part III asked the jury to calculate wages due “under the terms of the employment.” The damages for Parts I and II would be the same. We conclude the correct interpretation of the jury’s “no” response in Part I, question No. 3 is that the conditions to Prem ier’s performance took place and there were “no” excuses. Thus, the jury determined Premier breached its promise to pay wages but was instructed to specify damages in Part III of the verdict form. iii. Breach of the Covenant of Good Faith and Fair Dealing The above analysis regarding Part I a pplies equally to the jury’s answers in Part II (concerning the breach of the covenant of good faith and fair dealing). As with Part I, the special verdict form contained a compound question about the preconditions required for Premier’s performance. However, th e jury’s response of “no,” when read in conjunction with the record and Part III, can co rrectly be interpreted as making a factual finding in Hines’s favor.14 With respect to this clai m, the trial court instructed the jury with a modified version of CACI No. 325, as fo llows: “In every contract or agreement there is an implied promise of good faith and fair dealing. This means that each party w ill not do anything to unfairly interfere with the right of any other party to receive the benefits of the contract; however, the implied promise of good faith and fair dealing cannot create obligations that
are inconsistent with the terms of the contract . [Hines] claims that [Premier] violated the duty to act fairly and in good faith. To estab lish this claim, [Hines] must prove all of the following: [¶] 1. That . . . Hines and [Premier ] entered into a contrac t; [¶] 2. That . . . Hines did all, or substantially all, of the significant things that the contract required him to do or that he was excused from having to do those things; [¶] 3. That all conditions required for [Premier’s] performance had occu rred; [¶] 4. That [Premier] unfairly interfered with . . . Hines’s right to receive the benefits of the contract; and [¶] 5. That . . . Hines was harmed by [Premier’s] conduct.” The special verdict form (Part II) asked the jury to answer the following questions: (1) “Did . . . Hines and [Premier] enter into a contract?”; (2) “Did . . . Hines do all, or substantially all, of the significant th ings that the contract required him to do?”; [¶] (3) “Did all the conditions that were required for [Premier’s ] performance occur or were they excused?”; (4) “D id [Premier] unfairly interfere with . . . Hines’s right to receive the benefits of the contract?”; (5 ) “Was . . . Hines harmed by [Premier’s] conduct?”; and (6) “What are . . . Hines’s damages?”
As with the breach of contract claim (special verdict formPart I), the jury answered “yes” to the first two questions fi nding there was a contract and Hines did not
breach the contract. It answered “no” to the compound question of whether there was a
nonoccurrence of a condition or whether there was an excuse. We adopt by reference our above discussion of the case law and analysis of ambiguous verdicts. Once again, we
hold the verdict form in Part II can be correctly interpreted wh en read in conjunction with15 pleadings, evidence, instructi ons, and the jury’s determina tion in Part III that Premier owed Hines damages related to a breach of the covenant of good faith and fair dealing. B. Was the Evidence Sufficient to Support the Verdict? Premier challenges the sufficiency of the evidence to su pport the jury’s verdict awarding (1) unpaid commissions, (2) unpaid overag es, (3) unpaid vacation pay, and (4) the waiting-time penalty. Premier first argues there could not possibly be
evidence in the record to support the jury ’s award of any damages because the jury
determined there was no breach of contract. This argument is based on the faulty premise the jury found in Premier’s favor on the first two causes of action. As discussed above, we have interpreted the jury’s verdict as fi nding in Hines’s favor on all causes of action. Accordingly, this argument on appeal is unpersuasive. We will address Premier’s separate challenges to each category of damages below. i. Unpaid Commissions With respect to unpaid commissions , Premier recognized the $28,841 jury
award could have been based on several different theories of recovery. Hines presented evidence he was owed a 5 pe rcent commission on solar panel contracts he directly obtained. He presented evidence this totaled $92,050. Hines also asserted he was owed a 1 percent override on solar panel contracts obt ained by Markovich. He calculated he was owed $13,466 in overrides. Hines estimated he was owed $52,600 for commissions lost when Premier cut back on giving him leads to new customers. To calculate his total damages he added the above sums (plus $40,84 5 owed for overages discussed in the next section) and subtracted $109,509 (his pay as reflected in his W-2 tax forms generated by Premier for 2008 and 2009). Premier argues there was no eviden ce it owed Hines money for unpaid commissions pursuant to the Agreement’s terms. It firs t points to evidence Hines was
terminated for cause. It does no t explain how this relates to th e issue at hand. It points to nothing in the Agreement or handbook sta ting an employee could not collect owed16 commissions if terminated for cause. This ar gument is irrelevant. And due to the utter lack of any case authority or legal analysis, we deem it waived. It is incumben t upon an appellant to present relevant legal authority and reasoned argument on each point made, otherwise, the argument may be deemed waived. ( Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 ( Badie ).) Second, Premier attacks Hines’s reliance on four cancelled solar panel contracts. It notes the Agreement plainly stated commissions would not be paid on cancelled contracts. Premier concludes, “The only way the jury coul d have ever awarded unpaid commissions on canceled sales was to a ffirmatively find there was a breach of the [covenant of] good faith and fair dealing, and it did not do so.” As noted above, this argument fails because we have construed the verdict to fi nd the jury did find a breach
occurred. Third, on appeal Premier discusses evidence proving customers cancelled their contracts for reasons other than imprope r and untimely installations. In essence, Premier is attempting to reargue the issue of whether it breached the covenant of good faith and fair dealing. It focuses on cance lled contracts involving customers having the last names, Agarwal, Kelly, Handzel, and Devine. 2 Specifically, it asserted there was evidence “Mr. Agarwal” cancelled his contract because of Hines, and not because of Premier’s poor perfor mance. It maintains
there was no evidence the “Kelly contract” was sent to Premier before it was cancelled.
Premier stated the evidence sh owed “customer Handzel” never said she wished to cancel due to Premier. Premier did not discuss any of the evidence with resp ect to the “Devine’s contract” other than to say it was cancelled.

2 The parties do not mention the cust omers’ first names. We recognize Premier’s former chief financial officer, Teresa Kelley, has a similar last name as one of the customers. To avoid confusion, we will refer to the customer Kelly as the “Kelly contract.”17 “‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the
determination as to whether there is a ny substantial evidence contradicted or
uncontradicted which will support the finding of fact.’ [Citations.]” ( Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 ( Foreman ).) The judgment is presumed to be correct. ( In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Moreover, we must presume “‘the record co ntains evidence to sustain every finding of fact. [Citations.]’” ( Foreman, supra, 3 Cal.3d at p. 881.) It is Premier’s burden to demonstrate that it does not. ( Ibid .)
It is well settled that to meet this burden, Premier had the duty to fairly summarize all the facts in the light most favorable to the judgment. ( Foreman, supra , 3 Cal.3d at p. 881.) And the burden to provide a fair summary of the evidence “grows with the complexity of the r ecord. [Citation.]” ( Western Aggregates, Inc. v. County of Yuba (2002) 101 Cal.App.4th 278, 290.) The record in this case is very co mplex. The testimony heard by the jury spans five volumes of reporter’s transcript s (it exceeds 10,000 pages). There are also eight volumes (2,053 pages) of appellant’s appendix. Premier provided copies of approximately 180 exhibits. Nevertheless, Premier has provided only a brief summary of the trial evidence, and its su mmary consists of facts supp orting only its defense. As aptly noted by Hines in the re spondent’s brief, the issue of unpaid commissions and the covenant of good faith a nd fair dealing was hotly disputed at trial and Hines presented a great deal of evidence supporting his claims. Hines complains that Premier, on appeal, has “taken great liberty to provide information out of context.” We agree. One clear example of this is Premier’ s portrayal of the Agarwal contract. Premier claims the evidence prove d this contract was cancelled due to Hines’s conduct, not due to Premier’s negligence. To support this clai m, it cites to the one favorable piece of18 evidence: Hines testified he remembered Agarwal mentioned in an e-mail he wanted to
cancel his contract in June 2008 “based on [his] experi ence with . . . Hines.”
Premier omits all the other materi al evidence regarding the Agarwal contract. It skips over the fact Hines also testified the Agarwal contract was not actually cancelled in June. Hines presented eviden ce (exhibit Nos. 9 & 10) showing Agarwal
decided to continue with the contract base d on his discussion with a Premier employee and Agarwal did not actually cancel the contra ct until October 2008 and, at that time, cited problems relating to the installation pro cess. In an e-mail dated October 27, 2008, Agarwal complained the company took roof measurements in August 2008 and the project was to be completed by October 26, 20 08. Agarwal grumbled he had “not heard from” Premier since August. Wh en all the material evidence on this issue is considered, it would be reasonable for the jury to infer Agarwal cancelled the contract in October due to Premier’s negligence and not because of Hines. By not mentioning or discussing a ll the relevant testimony and exhibits, Premier has left it for us to figure out wh y Agarwal’s many e-mails would not support the jury’s conclusion. However, it is not our jo b to construct theories or arguments that would undermine the judgment. We must pr esume the record cont ains evidence to sustain every finding of fact and pr esume the judgment is correct. ( Foreman, supra, 3 Cal.3d at p. 881.) Respondent’s brief is full of other examples showing Premier failed to present in its appeal a true picture of the material evidence presen ted at trial. Hines explains the record contains facts, not men tioned by Premier, that support the jury’s determination of damages. Prem ier’s decision to recite only its own evidence is not a fair summary for purposes of determining whethe r any inferences drawn by the jury were reasonable and supported by substantial evidence. ( Foreman, supra, 3 Cal.3d at p. 881.)
We conclude Premier’s failure to set fort h all material evidence waives the issue on appeal. ( Ibid .)19 Premier’s next challenge to the unp aid commission award also fails. It argues exhibit No. 89 shows the alleged co mmissions owed for customers Handzel, Devine, Kelly, and Agarwal tota led $11,497, and the jury retu rned a verdict of $28,841. Premier boldly asserts the difference between these two amounts is not supported by any
evidence in the record. Not so. In his briefing, Hines correctly points out that Premier’s argument fails to acknowledge there was other evidence of unpaid commissions. Exhibit No. 89 demonstrated he was not paid commi ssions owed on other sale contracts (in addition to the four customers Premier singl ed out). And, as stated above, the commission award encompassed not only 5 percent for direct sales, but also 1 percent for overrides and additional damages incurred when Premier starved Hines of customer leads during his final few months of employment. We recognize Premier also challenges the evidence supporting these latter two sources of commissions (overrides and damage s for lost leads). As we now explain,
these contentions also lack merit. First, Premier attacks Hines’s claim for damages arising from lost leads by discussing all the contrary evidence Premie r presented at trial proving there was no misconduct. Once again, Premier cites only to its own evidence and omits any mention
of Hines’s evidence on this issu e. Premier is not entitled to a second trial. It fails to appreciate our standard of review. We must look only at the evidence supporting the judgment and disregard evid ence to the contrary. ( Campbell v. Southern Pacific Co. (1978) 22 Cal.3d 51, 60.) It was Premier’s burden to demonstrate the evidence was not sufficient to support the judgme nt. And to satisfy this burden, Premier was required to
set forth in its brief all material eviden ce upon the point, not merely its own. ( Foreman,

supra, 3 Cal.3d at p. 881.) “‘Unless this is done the error is deemed to be waived.’ [Citations.]” ( Id . at pp. 881-882.) We conclude the argument is waived and assume the evidence supports the judgment.20 Second, Premier offers a great many arguments regarding the other possible component of the unpaid commission award, i. e., overrides. It recognized the Agreement specified Hines would receive, “Up to 1 [p ercent] override on all sales other than personal sales in Arizona, San Bernardino, Riverside[,] and [Los Angeles] counties depending on the margin.” Hines testified he calculated the amount of overrides in exhibit No. 89 by using all of Markovich’s sales from May 20 , 2008, to March 7, 2009, using a spread sheet provided by Markovich. Premier asserts there is a whole host of problems with Hines’s evidence and it presen ted these argument to the jury during the trial. It concludes, “If some portion of the jury’s award of ‘unpaid commission’ was intended to include amounts for ‘overrides,’ then there is no substantial evidence to support that portion of the award.” (Italics added.) Premier’s conclusion goes to the hear t of the problem. The special verdict does not answer the question as to what po rtion, if any, of the $28,841 unpaid
commission award “was intended to include amounts for ‘overrides.’” If we were to assume for the sake of argumen t that the jury agreed with all of Premier’s arguments at trial regarding overrides, and it rejected Hines’ s request for $13,466 in overrides, we still would have no grounds to disturb the verdict. The jury ’s award of unpaid commissions could have been based entirely on the calcu lations for the 5 percent commission rate allegedly owed for Hines’s direct sales (tot al amount requested $92.050) and/or damages for commissions lost during the last four months of employment (total amount requested $52,600). Either of these two sums standing alone could account fo r the $28,841 the jury calculated for unpaid commissions. The jury appears to have discounted some accounts21 and calculated its own figure for unpaid commi ssions. We will not speculate the award
included overrides. 3 ii. Unpaid Overages Hines testified that before the Agreem ent was executed he was promised he would be paid overages. In exhibit No. 89 he designed a chart showing that for each of his customers there was a “PAR price,” repres enting the solar panel sale price based on Premier’s pricing model. He explained the sola r panel system was sup posed to be sold at this price. The chart also sh owed the price of the actual contract. This sum ranged from
several hundred to thousands of dollars mo re than the PAR pric e depending on the customer. Hines explained Pr emier promised to pay him 50 percent of this additional profit for each contract. He calculated he was owed $40,845 for overages. The jury awarded much less, calculating $28,443 for overages. It is undisputed the promise to pa y overages is not contained in the Agreement. Premier argues evidence of an oral agreement to pay overages was improperly admitted extrinsi c and/or parol evidence. We conclude Premier misunderstands the nature of these legal co ncepts. “The test of admissibility of extrinsic
evidence to explain the meaning of a written instrument is . . . whether the offered evidence is relevant to prove a meaning to which the language of the instrument is reasonably susceptible . [Citations.]” ( Pacific Gas & E. Co. v. G. W. Thomas Drayage
etc. Co. (1968) 69 Cal.2d 33, 37, italic s added.) It was Hines’s theory there was an oral contract to pay overrides in addition to the promises made in the Agreement. The
evidence was not intended to explain the meaning of the Agreement.

3 Premier devotes a few sentences to arguing the jury’s commission award should not have included Hine s’s claim for $11,000 in bonuses. This argument fails for the same reason as the overrides issue. Beca use the jury was not asked to delineate the basis for its award, we will not speculate bo nuses were included. There was substantial evidence of other sources for the unpaid commission award.22 As for the admissibility of parol evid ence, the test is well established as follows: “To the extent a contract is integr ated, the parol evidence rule precludes the admission of evidence of the parties’ prio r or contemporaneous oral statements to contradict the terms of the writing, althou gh parol evidence is always admissible to interpret the written agreement. [Citation.]” ( Esbensen v. Userware Internat., Inc. (1992) 11 Cal. App.4th 631, 636-637.) Pr emier does not allege the Agreement was a fully integrated written agreement. It does not provide case authority or legal analysis on this point. 4 We have reviewed the Agreement, and it does not explicitly provide the parties intended for the Agreement to repres ent a complete employment package or the entire agreement between the parties. To the contrary, the Ag reement outlined an incentive plan for a defined term of over ei ght months (April 2008 to December 2008) and did not purport to represen t all the terms of Hines’s employment with Premier. Moreover, an oral agreement to pay overages was not admitted to contradict the terms of the Agreement but rather was evidence of an additional sales incentive plan.
Premier adds it was error to admit ev idence of an oral agreement because
there was no cause of action for breach of an oral contract. It provides no case authority or legal analysis on this point. Premier does not assert the issue was raised below, or considered by or ruled upon by the trial court. It does not explain why it should be decided in the first instance by this court. We deem the cont ention waived. (See Badie,

4 “If a writing is intended by the parties as a ‘complete and exclusive statement of the terms of th e agreement’ (see Code Civ. Proc., § 1856, subd. (b)), the contract is ‘fully’ or ‘completely’ integrat ed and parol evidence is inadmissible even to add terms not inconsistent with the writing. Obviously, such a determination must be based on proof of the parties’ intent [citation] and a critical element in that proof is the nature of the alleged consistent oral unders tanding. [Citation.] The Supreme Court has held that in order to bar ev idence of a consistent oral understanding, the court must convince itself at a mini mum that such an understanding would not ‘naturally’ have been excluded from the writing. [Citation.]” ( Esbensen, supra, 11 Cal.App.4th at p. 637, fn. omitted.)23 supra, 67 Cal.App.4th at pp. 784-785 [appellant mu st present relevant legal authority and reasoned argument on each point made]; Mansell v. Board of Administration (1994) 30 Cal.App.4th 539, 545-546 ( Mansell ) [it is not the proper func tion of Court of Appeal to search the record on behalf of appellants or to serve as “backup appellate counsel”];
Kim v. Sumitomo Bank (1993) 17 Cal.Ap p.4th 974, 979 ( Kim ) [appellate court not required to consider points not supporte d by citation to authorities or record].) Premier argues no jury instructions we re given to determine overages. It does not explain the relevance of this fact . Nor does it address the significance or relevance of the other instructions apparent ly given to address the oral agreement for overages. The jury was instru cted, “Contracts may be written or oral. [¶] Contracts may be partly written and partly oral. [¶] Oral c ontracts are just as valid as written contracts.” (CACI No. 304.) It was also instructed regarding implied in fact contracts (CACI No. 305), and modification of wr itten contracts (CACI No. 313 ). Premier does not address why these instructions were insu fficient or inadequate for the jury to determine overages. It does not assert it objected to the jury instructions, notif ied the trial court about its concerns, or that this is an a ppropriate issue for appellate revi ew in the first instance. An appellate court is not required to consider points not supported by citation to authorities or record. ( Kim, supra, 17 Cal.App.4th at p. 979.) We deem this issue also waived. ( Badie, supra, 67 Cal.App.4th at pp. 784-785; Mansell, supra, 30 Cal.App.4th at pp. 545-546.) Premier’s remaining argum ents regarding overages appear to be the same
unsuccessful ones made at trial. Premier c ited to evidence it claims proves there was no agreement to pay overages, Hi nes was not part of the overa ges program, Hines was not eligible for the program because he was hired to be a manager and not a sales consultant, Hines used the wrong forms and untimely re quested overages, and Hines’s calculations were unreliable. Once again, Premier has presented only favorabl e evidence supporting its theory of the case and it fails to mention the evidence presented by Hines during trial24 on these same issues. We th erefore deem his point waived and assume the evidence supports the judgment. (See Foreman, supra , 3 Cal.3d at p. 881.) iii. Vacation Pay Under the title, “Employee Benefits ” the employee ha ndbook explains Premiere offers its employees vacation. “[Prem ier] recognizes the ne ed for balance in an employees’ work life and personal life. Paid vacation is to promote and increase productivity and a healthy morale through rest and relaxation. [¶] All regular employees working 32 hours or more hours per week on a regular basis are eligible for paid vacation.” The handbook simply states employees having six months to three years of
service will earn 80 vacation hours.
The handbook cautions that earned vacation hours must be taken prior to the next anniversary date. “There is no ca rryover of vacation hours into the following anniversary year.” It was un disputed Hines did not use any of his vacation hours. The handbook promised that after termination of employment, “[i]n your final paycheck, you will receive pay for all hours wo rked up through your last da y of employment in addition to any unused earned vacation.” It was undisputed Premier did not include in Hines’s final paycheck any money fo r unused earned vacation. At trial, Hines asserted he was owed $4,977. He expl ained he calculated this sum based on his salary and commissions. He admitted the employee manual did not describe how vacation pa y would be calculated. Hines be gan working April 4, 2008, and was terminated on March 10, 2009. Premie r contends because there was no evidence Hines intended to take a vacation, his “hours would have lapsed be fore he could have used them, but for the fact of his terminati on.” It also argues th ere was no evidence to support the sum requested by Hines, or the $1,538.46 awarded by the jury. It concludes the award appears arbitrary, further supp orting its argument ther e is no substantial evidence to support the award of vacation pay. We disagree.25 Hines presented evidence of his ba se salary and average commission pay,
and calculated the value of 80 vacation hours . Premier did not present evidence to contradict Hines’s premise these sums are us ed to calculate vacation pay for employees. It presents no legal authority to support the notion an employee should not be paid
accrued vacation time if he is fired before he takes a va cation. The employee manual does not specify how the 80 hours vacation time is calculated, and Premier did not present evidence on this issue. Therefore, it was up to the jury to decide what a reasonable hourly rate was for the unused vacation time that the employee manual promised would be in the final paycheck. The jury calculated Hines was owed significantly less than what he requested and awarded $1,538.46. In the abse nce of any evidence to the contrary, this figure could be based on 80 h ours and a more conservative estimate of commission pay.
It could be based on less vacation hours but at a higher salary/commission combination. In either case, because Hines presented evid ence of his base salary and commissions it
cannot be said there was insu fficient evidence to suppor t the jury’s verdict. iv. Waiting-Time Penalty Part IV of the special verdict asked the jury to answer questions about the Labor Code penalties for the fa ilure to timely pay wages. The jury answer ed, “Yes” to the following questions: (1) di d Hines “perform work for” Premier?; (2) did Premier discharge Hines?; and (3) did Premier “will fully fail to pay the full amount of wages earned by . . . Hines on his last day of employment?” The jury responded “Days: 5” in res ponse to the special verdict’s question, “For how many calendar days following . . . Hi nes’s last day of employment did Premier . . . willfully fail to pay the full amount of . . . Hines’s wages?” It determined Hines’s daily wage rate at the time of his employment was $153.85.26 Labor Code section 203 5 provides that if an employer fails to pay the full amount of wages, “the wages of the employe e shall continue as a penalty from the due date thereof at the same rate until paid [but for no longer] than 30 days.” Premier argues “there is no willful fa ilure to pay wages if the employer and employee have a good faith dispute as to wh ether and when the wages were due.” It asserts there was a good faith disagreement about commissions and overages. Noticeably absent from the analysis is any mention of the unpaid vacation hours. Premier does not assert theses sums were not paid in good faith . It fails to cite to any evidence it had a good reason to believe absolu tely no vacation hours accrued during Hines’s first year of employment. This evidence is sufficient, st anding alone, to suppo rt the jury’s verdict there was a willful failure to pay wages. Vacation is a form of wages. ( Suastez v. Plastic Dress-Up Co. (1982) 31 Cal.3d 774, 77 9 [“It is established that vacation pay is not a gratuity or a gift, but is, in effect, additiona l wages for services pe rformed”].) We find no

error. C. Should Nonsuit Have Been Granted? On appeal, Premier asserts it “move d for nonsuit at the end of Hines’s opening statement because he had not identifie d sufficient facts to make out a cause of
action for breach of written contract with re spect to the claim fo r commissions.” It explains the motion was based on the theory the written contract did not provide for
“commissions earned after such time as the consultant is actively employed” and Hines waited two years after leaving his employmen t to seek unpaid commissions. Premier argued the trial court improperly denied the nonsuit motion on the grounds there was not an integration clause in the Agreement. To support this argument, Premier disc usses the terms of the Agreement. It concluded Hines “did not sugg est sufficient evidence to sh ow he would be entitled to

5 All further statutory references are to the Labor Code, unless otherwise indicated.27 recover commission or overages on sales whic h were ‘booked’ upon the receipt of customer payments after he le ft Premier . . . .” It adde d, Hines did not allege the Agreement was amended to provide for “commissions on cancelled contracts, commissions due after he was terminated, cont racts paid for after he left Premier, and overages, which he freely ad mitted were not part of the written contract.” This argument fails because it is not an accurate description of what
occurred in the trial court. Premier’s counsel made an oral motion for nonsuit after the jury heard Hines’s and Premier’s opening st atements. Premier’s counsel stated there were two aspects to the motion. First, there was no evidence to support the third cause of action for a violation of public policy. Se cond, “[T]here is a contract, which clearly traverses the provisions of which that would bar the claims that th ere was some sort of other commission scheme that [H ines was] entitled to commissions at all after he left and counsel has not illuminated any sort of a basi s for saying the contract was entered into under fraud, duress, or the wr iting is not valid and binding. ” Counsel concluded under the parol evidence rule counse l had not stated a cause of action for breach of the written

contract. Hines’s counsel responded the Agreement was prepared by the employer and it does not contain an integration clause . He argued there was no reason an employee
could not introduce evidence about the othe r part of the employment package “which would be the part that relates to overages a nd some of the other items.” Hines’s counsel
did not address the issue of whether the contr act was breached by Pr emier’s failure to pay
commissions “booked” after he left.
Hines’s counsel next addressed the ch allenge to the third cause of action (violation of public policy). After Premier’s counsel replied to arguments about the third cause of action, the trial court asked for add itional briefing regardin g that issue. The
court denied the motion for nonsuit as to th e contract action, stating, “The opening statement indicated there was an employm ent contract, however, there is not an28 integration clause such to th e effect that there was parol [evidence] or there is an argument or any suggestions there is going to be parol evidence th at the written document was not everything so I think that is well c overed in the opening statement so that is
denied.”
“Section 581c of the Code of Civi l Procedure authorizes a motion for nonsuit after plaintiff’s opening statement. In ruling on the motion, the court must accept
as true all facts set fo rth in the statement a nd indulge in every leg itimate inference that may be drawn from such facts. [Citation.] Gr anting a motion for nonsu it at this stage is a disfavored practice and will be upheld only wh ere it is clear plaintiff’s counsel has stated all facts he expects to prov e and such facts do not constitute a cause of action. [Citation.]” ( Sturgeon v. Curnutt (1994) 29 Cal.App.4th 301, 305 ( Sturgeon ).) We find

no error. In the opening statement Hines’s co unsel asserted there was a written agreement that contained only part of the compensation packag e. Counsel to ld the jury
there were “other items” not included in the Agreement and because the Agreement did not have an integration clause it must be view ed as only part of the terms of employment. He argued, “The other part that was very significant that was included in it is there was something called overages and . . . Hines an d others will explai n to you how that
worked.” Counsel stat ed there were various documents a nd other references made to the “overage issue” and Hines was not paid for over ages. Simply stated, Hines alleged in the opening statement that extrinsi c evidence would be used to add to the promises made in the written agreement (because it does not have an integration clause). Hines’s counsel explained it was Hines’s theory the nonpayment of overages was a breach of the contract
as modified. “In ruling on the motion, the court must accept as true all facts set forth in the statement and indulge in every legitimat e inference that may be drawn from such facts. [Citation.]” ( Sturgeon, supra, 29 Cal.App.4th at p. 305.) Hines’s counsel stated29 facts he expected to prove and those facts c onstituted a viable cause of action. Nonsuit
on the breach of contract claim was properly denied.
D. Should the Trial Court Have Excluded Exhibit No. 89
As described in some detail above , exhibit No. 89 contained Hines’s calculations for his commissions, overrides, a nd overages earned during his employment. The exhibit contains three pages of tables a nd each of these pages lists customer names and sums of money depending on the element of damages. The final page of the exhibit contained Hines’s summary of the evidence ga thered from the other three pages. During Hines’s testimony, counsel asked questions ab out exhibit No. 89 and what documents he used to calculate each element of his alleged damages. Premier did not object to use of the exhibit during the trial. After both parties rested, but before the jury was instructed, the parties discussed Hines’s many exhibits. Premier’s co unsel stated he obje cted to the admission
of exhibit No. 89. Before the trial court ruled, Hines’s counsel offered to submit an
amended version of exhibit No . 89, based on more accurate calculations. Counsel suggested, “Since we completed the case, one of the things th at we did is we recalculated the items that were on the original numbe r 89. [The original ] was prepared from documents he kept in the ordinary course th rough his employment to some extent with regard to the commissions and the overage split and Markovich’s overrides and, of course, the last page consists of a summary of the various damages.” Counsel stated the updated document could be ad mitted, after which both parties could present argument or Hines could seek to reopen and identify the do cument and its contents. Hines stated the document represented Hines’s testimony and wo uld help the jury de liberate because the jury will not have to “paw th rough each contract.” Counsel argued the documents were reliable because the figures are “subject to verification by the contracts which form the basis of it, and also with regard to the W-2 forms, which have been identified and stipulated to goin g into evidence.”30 Premier argued the exhibit was “a good demonstrative exhibit,” but it
should not be deemed admissible evidence. Premier’s counsel argued Hines conceded during the trial that were multiple errors in his calculations. Counsel stated it was unclear where many of the figures came from, and the evidence was unreliable. The trial court ruled, “I think it is an admissible piece of evidence save the last page, which . . . compiles the three page s over again.” The court stated it would remove page four because it was argumentative. On appeal, Premier asserts exhibit No . 89 lacked foundati on and reliability. It maintains, “There was no satisfactory explana tion at trial of the source of all the figures in exhibit No. 89, particularly those on page three regardin g overages.” Premier notes Hines testified he was referred to the “p ricing module” and customers described in
documents contained in exhibit No. 4. Premie r asserts some of the customer names were not contained in exhibit No. 4 (but does not te ll us which ones). It also points out Hines testified he relied on an Excel chart, but it wa s not introduced as an exhibit. Premier concludes that based on these facts, the tria l court improperly overruled its objection to admission of the exhibit. On appeal, Prem ier adds a few new arguments not raised
below. It contends Hines’s reliance on a spreadsheet obtained from Markovich renders exhibit No. 89 hearsay eviden ce that should have been excluded. Premier does not explain its failure to raise the hearsay issue below. Nevertheless, it concludes the trial
court should have excluded it on this basis. More importantly, Premier does not cite to a single case or legal treatise to support its argument the court erred in admitti ng exhibit No. 89. There is no mention of the standard of review, the basis for the court’ s ruling, or whether th ere is legal authority supporting exclusion of demonstrative evidence. It is incumbent upon an appellant to present relevant legal authority and reasone d argument on each point made, otherwise, the argument may be deemed waived. ( Badie, supra, 67 Cal.App.4th at pp. 784-785 ; Mansell, supra, 30 Cal.App.4th at pp. 545-546 [it is not the proper function of Court of31 Appeal to search the record on behalf of appellants or to serve as “backup appellate counsel”]; Kim, supra, 17 Cal.App.4th at p. 97 9 [appellate court not required to consider points not supported by citation to authoritie s or record].) We deem the issue waived.
E. Should the Trial Cour t Have Granted the JNOV? With respect to our review of the JNOV ruling, Premier correctly provides case authority regarding our standard of revi ew. “The trial court’s power to grant a
motion for JNOV is the same as its power to grant a directed verdict. (Code Civ. Proc., § 629.) The court must accept as true the evidence supporting th e jury’s verdict, disregarding all conflicting evidence and indulg ing in every legitimate inference that may be drawn in support of the judgment. The co urt may grant the motion only if there is no substantial evidence to support the verdict. [Citations.] On appeal from the denial of a motion for JNOV, we determine whether there is any substantial evidence, contradicted or uncontradicted, supporting the ju ry’s verdict. [Citation.]” ( Tognazzini v. San Luis Coastal Unified School Dist. (2001) 86 Cal.App.4th 1053, 1057-1058.) On appeal, Premier asserts that “[ f]or the reasons discussed above in sections I through IV” of the appellate br ief, there was “no subs tantial evidence to support the jury’s award of da mages against Premier.” It a dds there cannot be evidence to sustain the award of damages because the ju ry found no breach of contract or of the covenant of good faith and fair dealing. Premier then summarizes the arguments raised in section I through IV. We need not rehash the same arguments. We have rejected all of Premier’s arguments on appeal regarding the sufficiency of the evidence alleged in sections I through IV, and interpreted the spec ial verdict as finding Premier was liable for breaches warranting damages. The tr ial court properly denied the JNOV.
F. Should the Trial Court Ha ve Granted the New Trial Motion?
Premier asserts the new trial moti on was improperly denied because the jury’s verdict was fatally inconsistent and “aga inst the law.” Earlier in this opinion, we determined the jury’s resp onses on the special verdict forms were ambiguous, not32 inconsistent. Based on the pleadings, evid ence, instructions, and other portions of the verdict forms, we reconciled and interpreted the jury’s responses on the forms as finding in favor in Hines. We find no error with respec t to the trial court’s denial of the new trial
motion.
G. Should the Mo tion to Tax Costs Ha ve Been Granted? Hines’s memorandum of costs request ed in addition to filing, jury, and court reporting fees, $2,212 for deposition co sts, $350 for service of process, $747 for attachment expenses, and $360 for exhibits. It requested a total of $9,267.64. Premier
filed a motion to tax costs atta cking the jury fees, service of process for David Kerdoon, attachment expenses, and depos ition costs related to Teresa Ke lley, who did not testify. Hines filed an opposition, and the court rule d in his favor awarding the exact sum he requested ($9,267). On appeal, Premier narrows the argumen t to two particular costs it found offensive. First, it complains Kelley’s depo sition testimony (costing $670) was irrelevant because she did not testify at trial. Premie r asserts Hines’s counsel purchased an airline ticket the day before departing and therefore paid an unnecessa rily high price of $435 to fly to Sacramento. In addition, the court aw arded the cost of a hotel stay in conjunction with the deposition. Premier argues counsel could have purchased the ticket 10 days in advance when it would have been much less expensive. Second, Premier challenges the court’s refusal to subtract the $75 fee for service of a trial subpoena upon Kerdoon
because Hines did not list him as a witness for trial. “Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its de cision is reviewed for abuse of discretion. [Citation.]” ( Ladas v. California State Auto. Assn . (1993) 19 Cal.App.4th 761, 774.) Noticeably absent from Premier’ s brief, is any discussion of the evidence presented in Hines’s opposition to the motion to tax costs. With respect to the cost of Kelley’s deposition, Hines explained she was Premier’s chief financial officer at the time he was33 terminated. She left the company after Hi nes and he was unsure about the reasons why she relocated. Moreover, it was unclear if she would be called as one of Premier’s witnesses because she was the person respons ible for accounting of overages and other compensation. Hines’s counsel believed that to adequately prepare for trial, the nature of Kelley’s testimony must be determined. However, finding a day to take Kelley’s deposition proved difficult and travel arrang ements could not be made until she gave some assurance she would appear. She was very uncooperative. Hines also offered evidence regarding Kerdoon, one of Premier’s disgruntled customers. Hines explained Kerd oon had also sued Pr emier and subpoenaed Hines to testify in his case. Hines planned to use Kerdoon as a rebuttal witness because he could confirm Premier’s negligence in in stalling the solar panels. Hines stated it “became unnecessary because of th e press to finish the trial and the statements made by . . . Marks during his testimony. A valid s ubpoena was issued and communications were
maintained with his couns el in the event he was needed to testify.” The above evidence, cited in Hines’s opposition, is likely what the trial court relied upon in making its ruling. Pr emier does not suggest th e evidence was false or unreliable. Indeed, it makes no mention of it. We find no reason why the court could not have relied on it because it adequately explained why the costs requested were
reasonable. It cannot be said the court abus ed its discretion in denying the motion to tax

costs. H. Should the Trial Court Have Awarded Attorney Fees? As a general rule, a successful plainti ff can recover attorney fees only when they are provided for by statute or by agreement of the parties. (Code Civ. Proc., § 1021; Davis v. Air Technical Industries, Inc . (1978) 22 Cal.3d 1, 5.) On appeal, Premier challenges the trial court’s determination Hine s was entitled to attorney fees pursuant to
section 218.5. It asserts the court abused its discretion in awarding attorney fees. It is wrong for several reasons.34 Ordinarily, a trial court’s determina tion that a litigant is a prevailing party
and its award of costs and fees is reviewed fo r abuse of discretion. However, the issue in this case is whether the statute applies to Hi nes’s lawsuit. The interpretation of section 218.5 and its application to the circumstances in this case are questions of law, subject to independent review on appeal. (See, e.g., City of Lafayette v. East Bay Mun. Utility Dist. (1993) 16 Cal.App.4th 1005, 1013.) “Pursuant to established principles, our fi rst task in construing a statute is to ascertain the intent of the Legi slature so as to effectuate the purpose of the law. In determining such intent, a court must look fi rst to the words of th e statute themselves, giving to the language its usua l, ordinary import and accord ing significance, if possible, to every word, phrase and sentence in pur suance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subj ect must be harmonized, both internally and with each other, to the extent possible. [Citations.] Where uncertainty exists consideration should be given to the cons equences that will flow from a particular interpretation. [Citation.] Both the legisl ative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent. [Citations.]” ( Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.) Section 218.5 provides in relevant part: “In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall aw ard reasonable attorney[] fees and costs to the prevailing party if any party to the action requests attorn ey[] fees and costs u pon the initiation of the action. . . . This section shall not apply to an action brought by the Labor Commissioner. This section shall not apply to a surety issu ing a bond pursuant to . . . the Business and
Professions Code or to an action to enforce a mechanics lien brought under . . . the Civil35 Code. [¶] . . . This section do es not apply to any cause of ac tion for which attorney[] fees are recoverable under [s]ection 1194 [actio ns to recover minimum wage and overtime compensation].” On its face, the statute applies to this case. Hines’s action was primarily brought for the nonpayment of wages and be nefits (including commissions, overages, and vacation pay). The first cause of action alle ged “substantial losses in earnings, bonuses, and job benefits.” The second cause of action alleged that as a direct result of Premier’s breach of the covenant of good faith and fa ir dealing, Hines “has lost substantial employment benefits . . . including . . . lost wages[] and other employee fringe benefits.” The third cause of action alleged violations of Labor Code statutes relating to “the timely compensation of employees.” The prayer requested these wage-related damages and attorney fees. On appeal, Premier suggests Hines’ s request for attorney fees under
section 218.5 was based on one claim—the waiting-time penalty under section 201—and not on the other wage-related causes of action. It then argues the $122 ,378 attorney fees
award was unreasonable in relation to the $769 damages recovered for the Labor Code violation. We find this argumen t misrepresents the record. Hines’s attorney fees motion was brought under section 218.5 and was
based on all claims relating to unpa id wages and benefits. 6 In Hines’s motion and supporting attorney declarati on, Hines explained he was not seeking fees relating to

6 Premier misstates the record by arguing Hines’s motion for attorney fees did not specify section 218.5, and that he only menti oned section 201 as the basis for recovery of fees. Premier complains Hines fi rst mentioned section 218.5 in its reply brief to the opposition. Nonsense! The face page of the “notice of motion and motion for attorney[] fees” clearly states, “Hines, will move the court for an orde r for attorney[] fees pursuant to . . . section 281.5 .” (Italics added.) The attach ed memorandum of points and authorities explained Hines was s eeking attorney fees for all matters relating to the timely payment of wages, which included all caus es of action except the one for emotional distress. It mentioned the first two causes of action in addition to section 201 (the third cause of action).36 the discovery and work done on his claim for emotional distress. Hines’s attorney declared “less than” 10 percent of his time “w as expended on matters not relating to the timely payment of wages.” Hines argued, “T he bulk of discovery was concentrated on Premier’s failure to pay [Hines ] everything owed at the time of his termination. The
awards for breach of contract and breach of th e covenant of good faith and fair dealing are predicated on the failure of Premier to pay [Hines] on or before the termination date wages owed . . . .” Hines added the 10 pe rcent deduction was “more than generous to Premier,” especially since the IIED was base d on the fact Premier did not pay wages owed. This argument lacks merit. We conc lude the $122,378 attorney fees award was reasonable in relation to the $58,9 77 for wage-related damages. In addition, Premier argues the attorney fees should have been apportioned because under section 218.5 the prevailing party may only recover fees on statutory causes of action. It cites authority holding, “‘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.’” ( Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 686-687.) Premier reasons attorney fees “wer e not recoverable under any of the causes of action of the complaint” because none involved violations of statutes permitting attorney fees. It explains th e Agreement did not contain an attorney fees clause and so
fees were not recoverable for the first two ca uses of action and the tort claims would not support the recovery of fees . It notes no fees were re quested with respect to the accounting claim, and in any ev ent, that issue was not litigated. Premier argues, “[T]he basis upon which Hines sought r ecovery of attorney[] fees was section 218.5, which was not even specifically alleged in his complaint. . . . Rather, the [third cause of action]
contains a brief allusion to ‘violation of the public policy as expressed in the California
Labor Code that specifically prohibits any impr oper withholding of compensation
earned.’ . . . What the claim for violati on of public policy boiled down to was an37 instruction . . . regarding a waiting-time pena lty for non-payment of wages.” Premier
asserts this claim was a nominal part of the case and Hines sp ent very little time litigating
that issue. Premier concludes the trial cour t should have apportio ned the attorney fees award to time spent on the waiting-time penalty from time spent lit igating claims for
which fees are not recove rable. It is wrong. It appears Premier is suggesting on appe al that section 218.5 only applies to Hines’s causes of action alleging Labor Code violations, and this was the only basis for the attorney fees motion. It provides no suppo rting case authority for this theory, and we
have determined it is not a correct statement of the law. “If an employer fails to pay wages in the amount, time, or manner required by contract or by statute, the employee has two principal options. The employee may seek judicial relief by filing an ordinary civil action against the employer for breach of contract and/or for the wages prescribed by statute. (§§ 218, 1194.) Or the employe e may seek administrative relief by filing a wage claim with the [California Labor Commi ssioner] pursuant to a special statutory scheme . . .” commonly known as a “Berman” hearing. ( Cuadra v. Millan (1998) 17 Cal.4th 855, 858, italics omitted, disapproved on a nother ground in Samuels v. Mix (1999) 22 Cal.4th 1, 16, fn. 4.) Section 218.5 expressly applies to “an y action” based on the nonpayment of wages or benefits. “Any action” would include claims for breach of contract and breach of the covenant of good faith and fair deali ng. If the Legislature had intended to exclude
contract-related claims from the reach of sec tion 218.5, it could have easily and expressly done so. Notably, the Legislature expressly specified section 218.5 is inapplicable to actions brought by the California Labor Commiss ioner, to a surety issuing a bond, to an action to enforce a mechanic’s lien, and to an action for which attorney fees are recoverable under section 1194. (See Earley v. Superior Court (2000) 79 Cal.App.4th 1420, 1427 [“Section 218.5 entitles the prevailing party, in any action for ‘wages,’ to a mandatory award of costs and attorney fees”].) In summary, section 218.5 permitted38 Hines to recover attorney fees on all claims except his tort causes of action. In his motion, Hines stated he apportio ned 10 percent of his attorney fees to the litigation of the tort claims, and the rest related to his e fforts to recover wages (for which fees were recoverable). The trial court agreed this was a proper apportionment and we find no reason to disturb its ruling. We wish to briefly address Prem ier’s comment Hines could not seek attorney fees under section 218.5 because it was not alleged in the complaint. Once again, it cites no authority to support this contention. We conclude the argument is
meritless. Section 218.5 has no such requirement. Rathe r, it simply provides attorney fees are available “if any party to the acti on requests attorney[] fees and costs upon the initiation of the action.” (§ 218.5.) Hines’ s complaint prayed for attorney fees. And since his first three causes of action all soug ht damages for unpaid wages and benefits, we conclude the complaint ad equately placed Premier on noti ce of potential liability for Hines’s attorney fees under section 218.5. I. Was the Issue of Punitive Da mages Properly Before the Jury? Before trial, Premier moved to stri ke Hines’s claims for punitive damages
as to the second and third causes of action. The trial court granted the motion as to the second cause of action (breach of the covena nt), but not the third (violation of public policy due to Labor Code viol ations regarding timely paymen t of wages). On appeal, Premier argues this ruling was incorrect. It c oncludes, “Had the motion . . . been granted, the jury would not have been given any instruction regard ing a waiting time penalty, and the damages for such a penalty would not have been awarded. Therefore, the trial court’s39 denial of Premier’s motion to strike the pun itive damages as to the [f]ourth [c]ause of [a]ction was prejudicial error.” 7 This argument is mystifying becau se the jury did not award punitive damages, it was not instructed on punitive da mages, and such damages were not part of the final judgment. We suspect Premier has confused the term “punitive damages” with the statutory “penalty” imposed for nonpaymen t of wages and authorized by section 203. That section provides the empl oyer will pay a penalty if the employer willfully fails to pay wages. (§ 203 [“wages of the employee shall continue as a penalty” until employer pays owed wages].) Premier did not move to strike the penalty allegation, and we cannot construe the court’s ruling on the motion to strike punitive damages as having anything to do with a statutorily mandated penalty. There is no ruling for us to review on this issue.
J. Should Hines be Entitled to Reco ver Attorney Fees on This Appeal?
The law is well established that a st atute authorizing the recovery of attorney fees in the trial court also authoriz es the recovery of atto rney fees incurred on appeal unless the statute specifica lly provides to the contrary. ( Morcos v. Board of
Retirement (1990) 51 Cal.3d 924, 927.) Such an award is author ized even where the only issue on appeal is the propriety of the fee award made in the trial court. ( Del Cerro Mobile Estates v. Proffer (2001) 87 Cal.App.4th 943, 951 .) Accordingly, we conclude Hines may recover attorney fees incurred in defending against th is appeal in an amount to be determined by the trial court.

7 We will assume this last statement contains a typographi cal error regarding the cause of action because punitive damages we re not alleged with respect to the fourth cause of action for emotional distress. Premie r’s motion did not relate to the fourth cause of action.40 III The judgment is affirmed. Respondent shall recover his costs and attorney fees on appeal. The matter is remanded to th e superior court to de termine the amount of attorney fees recoverable on ap peal by respondent Hines.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

FYBEL, J.