Filed 11/02/18

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

AMANDA QUILES,

 Plaintiff and Respondent,

v.

ARTHUR J. PARENT, JR.,

 Defendant and Appellant.

 G054353

 (Super. Ct. No. 30-2010-00425532)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, William 

D. Claster, Judge. Affirmed.

Law Office of Stephen A. Madoni and Stephen A. Madoni for Defendant 

and Appellant.

Bryan Schwartz Law, Bryan J. Schwartz, Logan Starr; Levene, Neale, 

Bender, Yoo & Brill and Daniel H. Reiss for Plaintiff and Respondent.

* * *
2

INTRODUCTION

In this latest chapter in what originated as a wage and hour class action, 

defendant Arthur J. Parent, Jr. (Parent) appeals from the amended judgment entered in 

favor of plaintiff Amanda Quiles on her individual claim for wrongful employment 

termination in violation of the federal Fair Labor Standards Act of 1938 (FLSA; 29 

U.S.C. § 201 et seq.). (All further statutory references are to title 29 of the United States 

Code unless otherwise specified.) In addition to the damages awarded by the jury, the 

amended judgment awarded Quiles $689,310.04 in attorney fees and $50,591.69 in costs

of litigation. 

Parent challenges the attorney fees and costs awards of the amended

judgment only, arguing the trial court erred by awarding costs that were not statutorily 

authorized and by awarding attorney fees and costs that were jointly incurred by Quiles 

with her coplaintiffs for whom litigation remains pending. He also argues the trial court 

otherwise abused its discretion by awarding attorney fees and costs that were unrelated 

and unnecessary to Quiles’s successful FLSA claim. 

We affirm. We hold, in this case of first impression, that federal law 

applies to the determination of what type of costs are recoverable by a prevailing party in 

an FLSA action filed in state court. Section 216(b) provides that any employer who 

wrongfully terminates the employment of an employee in retaliation for filing an FLSA 

action shall be liable for legal or equitable relief and shall pay the employee’s reasonable 

attorney fees and costs of the action. Federal courts have construed section 216(b) to 

authorize awarding a prevailing employee a broad measure of costs, which include 

copying, postage, and mediation expenses. 

We reject Parent’s argument that the trial court erred by awarding Quiles 

mediation costs because the parties had contractually agreed to mediate the matter and 

divide the costs between them. The record shows that the parties agreed to each pay the 

mediation services provider half the costs of mediation, but Parent did not go through 
3

with any agreement to mediate, having failed to personally appear at the mediation or 

otherwise be available to participate in the mediation. Parent forfeited his argument that 

the trial court awarded expert witness fees that were unauthorized by the FLSA. He 

failed to raise that argument in the trial court which resulted in the issue not having been 

fully briefed and in depriving the trial court the opportunity to make that determination in 

the first instance.

We also reject Parent’s claim that the trial court erred by awarding Quiles 

costs she jointly incurred with other plaintiffs who continue to litigate their claims. The 

trial court painstakingly reviewed the lengthy record regarding Quiles’s requests for 

attorney fees and costs and awarded her what the court determined she reasonably 

incurred on her own behalf and in relation to her successful claim. Contrary to Parent’s 

argument, the trial court did not err by awarding Quiles attorney fees and costs she 

incurred in connection with the trial as to the joint employer issue. Having proven 

Parent’s status as her joint employer enabled Quiles to avail herself of the opportunity to 

pursue damages, penalties, attorney fees and costs against Parent for violating the FLSA 

by wrongfully terminating Quiles’s employment. 

BACKGROUND

In November 2010, Quiles, along with other individuals, filed a proposed 

class action against, inter alia, Koji’s Japan Incorporated (Koji’s) and Parent (collectively 

defendants), asserting several state and federal wage and hour claims and violation of 

California’s unfair competition law. Plaintiffs amended their complaint several times to

add, among other things, Quiles’s individual wrongful employment termination claim in 

violation of the FLSA. 

In early 2015, the trial court presided over a bench trial to determine joint 

employer and alter ego theories of liability. At the beginning of the trial, defendants 

declared bankruptcy. Parent was fined over $50,000 for making a frivolous bankruptcy 
4

filing. At the conclusion of the bench trial, the trial court found Parent qualified as a joint 

employer under the FLSA.1 

A year later, the trial court conducted a jury trial of Quiles’s individual 

FLSA claim against defendants for wrongful employment termination. According to the 

parties’ joint statement of the case prepared for this phase of trial, “Quiles claimed that 

she was wrongfully terminated from her employment when Koji’s became aware that she 

was named as the representative claimant in this class action.” Quiles sought damages 

for past loss of earnings and emotional distress. Defendants argued Quiles’s employment 

was terminated for “legitimate reasons, based on her disciplinary record alone.” 

The jury found in favor of Quiles on her wrongful employment termination 

claim, finding on the special verdict form: (1) Quiles’s lawsuit was a substantial 

motivating reason for her discharge; (2) defendants’ conduct was a substantial factor in 

causing harm to Quiles; and (3) defendants failed to prove that they would have made the 

same decision based upon a legitimate, nonretaliatory reason. The jury awarded Quiles 

economic damages for loss of past earnings in the amount of $3,000; non-economic 

damages, including emotional distress damages, in the amount of $27,500; and punitive 

damages in the amount of $350,000. 

Quiles filed a request to withdraw as a class representative and requested 

dismissal of her individual claims other than her wrongful employment termination claim 

that had been tried. The trial court granted Quiles’s request and Quiles disclaimed any 

right to future recovery as a class member. 

In April 2016, judgment was entered in Quiles’s favor and against 

defendants for the damages awarded by the jury, plus $3,000 in liquidated damages 

 

1

 Quiles, along with other plaintiffs, challenged certain of the court’s findings at the 

bench trial through a notice of appeal which we construed as a petition for writ of 

mandate. (Turman v. Superior Court (2017) 17 Cal.App.5th 969, 979.) During the 

pendency of those proceedings, Quiles was dismissed as a party to them. (Id. at p. 975, 

fn. 3.) Our decision in Turman is not relevant to the issues presented in this case.
5

awarded by the trial court (§ 216(b)), for a total damages award of $383,500.

2

 Blank 

lines were included in the judgment for attorney fees and costs of litigation awards. 

Defendants filed a motion for a new trial solely challenging the award of 

punitive damages. The trial court conditionally granted the new trial motion, subject to 

Quiles consenting to a reduction of the punitive damages award to $175,000. (Code Civ. 

Proc., § 662.5, subd. (a)(2).) Quiles accepted the proposed reduction, bringing the total 

damages award down to $208,500.

In May 2016, Quiles filed a memorandum of costs and a supplemental 

memorandum of additional costs, which, together, sought a total costs award of 

$70,587.81. In June 2016, Quiles filed a motion seeking an attorney fees award in the 

total amount of $1,057,295.59 for the prosecution of her individual FLSA claim. The 

trial court summarized Quiles’s attorney fees request as comprised of the following: 

(1) for time spent up to May 22, 2013, $21,384.50 (a 90 percent discount off the total of 

$213,845 for 595.2 hours); (2) for time spent after May 22, 2013, $442,256.25 (a 

50 percent discount off the total of $884,512.50 for 2,245.5 hours); (3) $419,217.5 for 

1,009.4 hours for time spent solely on the wrongful employment termination action; 

(4) $25,600 for 51.2 hours of time spent by attorney William Crosby; (5) $170,395 for 

270.6 hours of time spent by attorney Larry Organ; (6) less $2,600 (a reduction of 5.2 

hours of Crosby’s time); (7) less $54,192.67 (a five percent discount off the subtotal of 

items (1) through (6) above); and (8) $30,105 for 76.1 hours for time spent to prepare the 

replies to “these motions” (presumably referring to Quiles’s motion for attorney fees and 

Parent’s motion to tax costs). Defendants filed a motion to strike or tax costs and an 

opposition to the motion for attorney fees. 

Following a hearing on attorney fees and costs, the trial court awarded 

Quiles $689,310.04 in attorney fees by way of a detailed written ruling. In a separate 

 

2

 Parent does not challenge the jury’s verdict finding him liable for wrongful 

employment termination in violation of FLSA or the award of damages against him.
6

order, the court awarded $50,591.69 in costs to Quiles. An amended judgment was 

entered which reflected the updated damage award (total of $208,500), the attorney fee 

award ($689,310.04), and the costs award ($50,591.69). 

Parent alone filed a notice of appeal.3 

DISCUSSION

I.

THE TRIAL COURT CORRECTLY DETERMINED THAT FEDERAL LAW APPLIED TO 

DETERMINE WHAT TYPES OF COSTS QUILES MAY RECOVER FOR PREVAILING ON HER 

FLSA CLAIM.

The FLSA provides for an award of prevailing party attorney fees and costs 

to an employee who proves retaliation under its provisions: “Any employer who violates 

the provisions of section 15(a)(3) of this Act [29 USCS § 215(a)(3)]

[4]

shall be liable for 

such legal or equitable relief as may be appropriate to effectuate the purposes of section 

15(a)(3) . . . . An action to recover the liability prescribed in the preceding sentences may 

be maintained against any employer (including a public agency) in any Federal or State 

court of competent jurisdiction by any one or more employees for and in behalf of 

himself or themselves and other employees similarly situated. . . . The court in such 

action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a 

 

3

During the pendency of this appeal, Parent filed a petition for a writ of supersedeas 

staying enforcement of the judgment as to the amount that remained owed on the 

judgment (attorney fees and costs only). (Quiles v. Parent (2017) 10 Cal.App.5th 130, 

148 (Quiles I).) We granted the petition without prejudice to the trial court exercising its 

discretion to impose a bond requirement on Parent. (Ibid.) Thereafter, the trial court so 

exercised its discretion and has required Parent to post a bond under Code of Civil 

Procedure section 917.9. Parent has filed an appeal from that order. 

4

Quiles’s wrongful employment termination claim was based on a violation of section 

215(a)(3), which provides it is unlawful for any person “to discharge or in any other 

manner discriminate against any employee because such employee has filed any 

complaint or instituted or caused to be instituted any proceeding under or related to this 

Act.”
7

reasonable attorney’s fee to be paid by the defendant, and costs of the action.” 

(§ 216(b).)

As we stated in Quiles I, supra, 10 Cal.App.5th at pages 145-146, “State 

procedural rules apply to federal causes of action in state court, unless the federal right is 

defeated thereby. (Felder v. Casey (1988) 487 U.S. 131, 138.) Generally speaking, the 

use of California postjudgment procedures to recover attorney fees and costs authorized 

by a federal statute does not appear to be inconsistent with federal law. (See Gill v. 

Hughes (1991) 227 Cal.App.3d 1299, 1310 [assessing award of attorney fees under 42 

U.S.C. § 1988 in state court postjudgment proceedings].)”

5

 

The parties disagree as to whether the trial court correctly concluded that 

federal law applied to determine not only Quiles’s entitlement to costs, but also the types 

of costs she might recover. Parent argues the issue of what type of costs are recoverable 

on an FLSA claim is a determination of a procedural nature to which state law would 

apply. Quiles argues that determination is of a substantive nature to which federal law 

applies. 

Neither the parties nor the trial court cite legal authority addressing the 

applicability of federal law to determine the recoverability of particular types of costs in 

an FLSA case litigated in state court. In our research, we have found none. There is, 

however, a line of cases addressing the same question in cases brought under the Federal

Employers Liability Act (45 U.S.C. § 51 et seq.) (FELA) filed in California state courts, 

in which courts have held that the question of the availability of certain types of costs is a 

matter of substantive law requiring the application of federal law. 

 

5 We further stated: “[P]ostjudgment proceedings authorized by the California Rules of 

Court and [Code of Civil Procedure] section 1021 et seq. provide a mechanism to allow 

Quiles to recover the attorney fees and costs authorized by 29 United States Code section 

216(b). The trial court was rightly operating under California state procedural rules in 

entertaining Quiles’s request for attorney fees and costs.” (Quiles I, supra, 10 

Cal.App.5th at p. 146.)
8

In Kinsey v. Union Pacific Railroad Co. (2009) 178 Cal.App.4th 201, 203

(Kinsey), the jury returned a verdict against the plaintiff in the FELA action he filed in 

state court. Before trial, the plaintiff had rejected the defendant’s offer to compromise 

under Code of Civil Procedure section 998. (Kinsey, supra, 178 Cal.App.4th at p. 203.) 

After the judgment was entered, the trial court awarded defendant its costs, including 

expert witness fees; the plaintiff appealed. (Ibid.) The appellate court reversed the expert 

witness fees portion of the costs award, holding “the availability of expert witness fees in 

a FELA action filed in state court is controlled by federal law. . . . [W]e conclude federal 

law does not authorize an award of expert witness fees to a defendant who has made a 

rejected offer of settlement and then obtains a defense verdict.” (Id. at p. 204.)

The appellate court’s reasoning included the following: “‘FELA is a broad 

remedial statute based on fault . . . and is intended by Congress to protect railroad 

employees by doing away with certain common law tort defenses. [Citations.]’ 

[Citation.] . . . [¶] A FELA action may be brought in state or federal court. [Citations.] 

When a FELA action is instituted in state court, state law governs the resolution of 

procedural issues unless application of state law results in the denial of a right granted by 

Congress. Federal law governs the resolution of substantive issues. [Citations.] [¶] 

Applying federal law to the resolution of substantive issues in FELA cases pending in 

state courts furthers the statute’s goal of ‘“creat[ing] uniformity throughout the Union” 

with respect to railroads’ financial responsibility for injuries to their employees.’” 

(Kinsey, supra, 178 Cal.App.4th at pp. 204-205.)

The appellate court continued: “In Miller [v. Union Pacific Railroad Co.

(2007)] 147 Cal.App.4th 451, we held that the availability of expert witness fees in a 

FELA action filed in state court is a ‘substantive’ issue controlled by federal law. [¶] In 

so doing, we noted that the United States Supreme Court has characterized a litigant’s 

ability to recover prejudgment interest in FELA cases as a ‘substantive’ issue governed 

by federal law, because it ‘“is normally designed to make the plaintiff whole and is part 
9

of the actual damages sought to be recovered,”’ ‘“may constitute a significant portion of 

an FELA plaintiff’s total recovery,”’ and may also ‘“constitute[] too substantial a part of 

a defendant’s potential liability under the FELA”’ to be considered merely procedural. 

[Citations.] [¶] Following the Supreme Court’s holding that federal law controls the 

availability of prejudgment interest in a state-filed FELA case, our own state high court 

in Lund [v. San Joaquin Valley Railroad (2003)] 31 Cal.4th 1 likewise concluded that 

prejudgment interest is not available in a California FELA case, notwithstanding contrary 

state law. It observed that the goal of achieving national uniformity in personal injury 

actions by railroad employees against their employers ‘would be frustrated if FELA 

plaintiffs could recover prejudgment interest simply by filing their actions in state court 

rather than in federal court, where such recovery is precluded. Even if prejudgment 

interest could be considered procedural rather than substantive, “state procedure must 

give way if it impedes the uniform application of the federal statute essential to effectuate 

its purpose, even though the procedure would apply to similar actions arising under state 

law.” [Citation.]’ [Citation.] [¶] In Miller [v. Union Pacific Railroad Co.], supra, 147 

Cal.App.4th 451, this court applied the same reasoning to the availability of expert 

witness fees as costs in a FELA case brought in state court.” (Kinsey, supra, 178 

Cal.App.4th at p. 205.)

The FLSA is sufficiently analogous to the FELA to support the principle 

that federal law applies in determining the recoverability of certain types of costs in an 

FLSA action brought in state court. Like FELA claims, FLSA claims may be filed in 

either state or federal court. (§ 216(b).) The FLSA too has “‘broad remedial purposes.’”

(Boucher v. Shaw (9th Cir. 2009) 572 F.3d 1087, 1090.) As Kinsey explained in the 

context of FELA cases, cost awards in FLSA cases can comprise a large amount of a 

litigant’s overall recovery; the amount of attorney fees and litigation costs awarded 

Quiles was double the amount of her damages award. To preclude a prevailing plaintiff 

from recovering the same costs incurred in litigating an FLSA claim in state court that he 
10

or she would have recovered in federal court would impede the uniform application of the 

FLSA without any indication from Congress it intended such a disparity. 

We therefore conclude federal law must be applied in determining the 

recoverability of certain types of costs in an FLSA action.6 

II.

THE TRIAL COURT CORRECTLY AWARDED QUILES COSTS FOR COPYING, POSTAGE, AND 

MEDIATION EXPENSES.

Section 216(b) does not describe, much less identify, the types of costs that 

may be awarded in favor of an employee who successfully proves a wrongful 

employment termination claim in violation of the FLSA. Federal case law has interpreted 

section 216(b) as authorizing a broad measure of costs, not limited by statutory lists of 

generally allowable costs in such cases, including “reasonable out-of-pocket expenses” 

 

6

 In his appellate opening brief, Parent argues that in Kinsey, supra, 178 Cal.App.4th at 

page 208, the appellate court “also remanded with instructions to allow for costs of 

ordinary witness fees pursuant to Code of Civil Procedure § 1033.5[.] [Id. at 208.] Thus 

the court in Kinsey specifically recognized that determining costs for a federal claim was 

governed by the state procedural statute ([Code of Civil Procedure s]ection 1033.54) for 

determining allowable costs, while determining substantive rights related to settlement of 

federal claims was governed by federal statutes.” We believe Parent reads too much into

the cited portion of Kinsey, which states: “[D]efendant asks on appeal that we remand 

the matter to the trial court, so that it may seek to recover as costs ‘ordinary witness fees 

for its experts who testified at trial.’ (See Code Civ. Proc., § 1033.5; Evid. Code, § 733;

Gov. Code, § 68093.) Plaintiff does not dispute that defendant is entitled to seek ordinary 

witness fees as costs for those of its experts who testified at trial. We remand the matter 

to the trial court for that limited purpose.” (Kinsey, supra, 178 Cal.App.4th at p. 208.) 

The appellate court did not determine or analyze the extent to which ordinary witness 

fees would be recoverable by the defendant, or whether there was any difference between 

state and federal law on that issue, but merely remanded the matter to the trial court to 

make that determination in the first instance. Construing this passage in Kinsey as 

requiring a holding that state law applies to the determination of what types of costs are 

available to a successful FLSA litigant would directly contradict the court’s analysis and 

holding in the case—that federal law applies to determine whether expert witness fees 

might be recoverable by a prevailing party in a FELA action.
11

beyond those normally allowed under the federal rules. (Smith v. Diffee Ford-LincolnMercury, Inc. (10th Cir. 2002) 298 F.3d 955, 968-969.) 

In his opening brief, Parent argues the trial court erred by awarding Quiles 

costs for copying, postage, and mediation expenses because none of those costs are 

available under Code of Civil Procedure section 1033.5. As discussed ante, federal law 

dictates what costs Quiles may recover. Parent does not analyze his challenges to the 

trial court’s costs award under federal law. We nevertheless analyze each of Parent’s 

challenges by applying federal law and conclude none has merit.

Federal district courts have routinely allowed the reimbursement to parties 

who prevailed on FLSA claims of their photocopying, postage, and mediation expenses. 

(See Lopez v. STS Consulting Servs. LLC (E.D.Tex. Mar. 12, 2018, No. 6:16-CV-00246-

RWS) 2018 U.S.Dist. Lexis 39736 [expenses for copying, mediation, and postage 

recoverable in FLSA action]; Mumford v. Eclectic Inst., Inc. (D.Or. Apr. 29, 2016, No. 

3:15-cv-00375-AC) 2016 U.S.Dist. Lexis 57940 [awarding prevailing party in FLSA 

claim cost of copies and postage]; Rutti v. Lojack Corp. (C.D.Cal. July 31, 2012, No. 

SACV 06-350) 2012 U.S.Dist. Lexis 107677 [“Reasonable litigation expenses are 

ordinarily included in an award of attorneys’ fees pursuant to the FLSA. [Citation.]

Expenses such as reimbursement for . . . photocopying, . . . postage, courier service, 

mediation, . . . are typically recoverable”]; Rouse v. Target Corp. (S.D. Tex. 2016) 181 

F.Supp.3d 379, 392 [in addition to taxable costs listed under 28 U.S.C. § 1920, “costs 

for . . . photocopying, . . . postage, courier service, mediation, . . . are also recoverable 

under the FLSA as part of an attorney’s fee award”]; but see Moore v. Deer Valley 

Trucking, Inc. (D.Idaho Sept. 12, 2016, No. 4:13-cv-00046) 2016 U.S.Dist. Lexis 124654 

[denying request for postage and photocopy fees in FLSA case as “not statutorily 

authorized”].)

Well-established federal authority therefore supports the trial court’s award 

of copying, postage, and mediation costs to Quiles.
12

As to the award of mediation fees, Parent further argues that such costs 

should not have been awarded to Quiles because the parties had contractually agreed to 

mediate and to split the mediator’s fees in doing so. He cites Carr Business Enterprises, 

Inc. v. City of Chowchilla (2008) 166 Cal.App.4th 25 in which a prevailing party was 

unable to recover mediation costs based on the parties’ reference agreement submitting a 

dispute to binding resolution pursuant to Code of Civil Procedure section 638. Carr 

Business Enterprises, Inc. has no application here because our record shows that,

notwithstanding the parties’ agreement to mediate, Parent refused to appear personally or 

otherwise participate in the mediation. 

Specifically, the record contains a copy of the relevant JAMS Fee 

Agreement & Cancelation Policy, setting forth the details of the mediation and each 

party’s agreement to pay JAMS half the mediation fee 14 days in advance of the 

scheduled mediation. Quiles’s attorney, Bryan J. Schwartz, filed a declaration in support 

of Quiles’s motion for attorney fees, in which he explained the circumstances of the 

parties’ mediation as follows: “My firm attempted in good faith t[o] settle the wrongful 

termination claims with Defendants shortly after adding the wrongful termination claims 

to the complaint. In February 2011, I flew down to Orange County to meet with 

Defendants’ counsel Steve Madoni about discussing settlement of the case, at his 

invitation, and to attend the initial case management conference in person, though I 

would have attended by CourtCall. Mr. Madoni did not show up at our scheduled 

meeting, nor did he appear for the case management conference, resulting in court 

sanctions. [Citation.] Later, the Parties each paid half of the fees for a mediation as to 

Plaintiff’s wrongful termination claims with the Honorable Luis A. Cardenas (Ret.), 

which was set for November 25, 2015 in Orange County. The mediation was confirmed 

by Defendants through Mr. Madoni on October 28, 2015, after the parties began 

discussing a mediation some time earlier. However, after Ms. Quiles and I traveled to 

Orange County the Wednesday prior to Thanksgiving, Defendant Parent did not even 
13

show up to the event. Of particular significance, and without disclosing confidential 

settlement demands and offers, after Defendants’ acceptable initial offer at the mediation, 

Judge Cardenas informed that Defendants’ counsel had no further room to negotiate, that 

Defendant Parent was unavailable (or unwilling) to speak with Judge Cardenas even via 

telephone, and that Defendants’ counsel would be leaving the mediation by 10:30 a.m. 

Needless to say, no settlement was reached. Attached hereto as Exhibit C is a true and 

correct copy of the email response from Judge Cardenas when I emailed him to request a 

partial refund from JAMS based upon the extraordinarily fruitless event.” 

Exhibit C to Schwartz’s declaration is an e-mail from Cardenas to Schwartz 

which states in part: “I will talk to the office manager about the JAMS fees . . . but after 

twenty years of working at JAMS . . . it probably will be the corporate opinion that the 

lack of progress was due to the lack of participation of a party and not to the forum. My 

suggestion is you seek reimbursement for your share of the mediation expenses as a 

‘cost’ when you submit your request for fees and costs after the trial is concluded. [¶] 

Your professionalism and courtesy under very difficult circumstances are greatly 

appreciated. It would be a privilege to work with you in the future . . . hopefully with 

better results.” 

Under these circumstances, we cannot conclude the trial court erred by 

awarding Quiles her mediation costs pursuant to the broad measure of costs available 

under section 216(b).

III.

PARENT HAS FORFEITED HIS ARGUMENT THE EXPERT FEES AWARD WAS NOT 

STATUTORILY AUTHORIZED.

In his opening brief, Parent argues “the trial court awarded [Quiles] $6,000 

in expert fees over objection of [Parent]” on the ground such costs are not recoverable 

under the FLSA. He cites only page 13040 of the clerk’s transcript, which is the portion 

of Quiles’s memorandum of costs detailing the expert witness fees she sought to recover. 
14

Quiles argues in her respondent’s brief that Parent has forfeited his 

argument that such costs are not recoverable under the FLSA because he did not raise 

that issue in the trial court. In his reply brief, citing page 13218 of the clerk’s transcript, 

Parent argues he “did object specifically to the award of expert witness fees.” His 

reference to expert witness fees on page 13218 of the clerk’s transcript was in relation to 

his argument that those fees, among many others (court fees, postage, transcripts, etc.),

were jointly incurred in the course of the bench trial of the alter ego and joint employer 

issues and that some, if not all, of those costs were not reasonably incurred in connection 

with Quiles’s successful FLSA wrongful employment termination claim.7 Parent does 

not cite where in the record he objected in the trial court to an award of expert witness 

fees as not statutorily authorized.

“Failure to raise specific challenges in the trial court forfeits the claim on 

appeal. ‘“‘[I]t is fundamental that a reviewing court will ordinarily not consider claims 

made for the first time on appeal which could have been but were not presented to the 

trial court.’ Thus, ‘we ignore arguments, authority, and facts not presented and litigated 

in the trial court. Generally, issues raised for the first time on appeal which were not 

litigated in the trial court are waived. [Citations.]’” [Citation.] “Appellate courts are 

loath to reverse a judgment on grounds that the opposing party did not have an 

opportunity to argue and the trial court did not have an opportunity to consider.

[Citation.] In our adversarial system, each party has the obligation to raise any issue or 

infirmity that might subject the ensuing judgment to attack. . . .”’” (Premier Medical 

Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 

550, 564.)

 

7

 We address and reject Parent’s arguments that the trial court improperly awarded 

Quiles attorney fees and costs incurred during the trial on the joint employer issue in 

discussion parts IV. and V. post.
15

We view the record as a whole, and we consider the extensive record 

prepared on the issues raised regarding Quiles’s attorney fees and costs, including the 

trial court’s lengthy rulings on these issues. We also note that the parties did not fully 

brief the expert witness fee issue raised by Parent on appeal. Based on the facts, we must 

conclude that Parent has forfeited his argument expert witness fees were not statutorily

authorized by failing to raise it below. 

IV.

THE RECORD DOES NOT SHOW THE TRIAL COURT AWARDED QUILES ATTORNEY FEES OR 

COSTS OTHER THAN THOSE INCURRED BY HER IN RELATION TO THE SUCCESSFUL 

LITIGATION OF HER WRONGFUL EMPLOYMENT TERMINATION CLAIM.

In his appellate opening brief, Parent argues the trial court erred by 

awarding attorney fees and costs in the amended judgment to Quiles “that were not 

incurred solely for the benefit of [Quiles], but rather, were incurred for the joint benefit of 

all the named plaintiffs for a matter still pending.” Citing Fennessy v. DeLeuw-Cather 

Corp. (1990) 218 Cal.App.3d 1192 (Fennessy), Parent argues that although Quiles 

dismissed all of her claims other than her successful retaliation claim, she was only one 

of eight plaintiffs and “the remaining seven jointly represented plaintiffs’ case is still 

pending.” Therefore, Parent’s argument continues, “although the lower court 

significantly reduced the fee request due to excessive and improper billing request, based 

on Fennessy . . . the court should not have awarded any of these jointly incurred costs or 

fees.” In his appellate reply brief, Parent reiterated he “does not question the amount of 

jointly incurred costs and fees awarded, but contends instead that under Fennessy . . . the 

court does not have the discretion to award any jointly incurred costs or fees while the 

matter is still pending.” 

California law provides: “[A]ll costs awarded to a prevailing party must be 

incurred by that party, must be ‘reasonably necessary to the conduct of the litigation 

rather than merely convenient or beneficial to its preparation,’ and must be reasonable in 

amount. ([Code Civ. Proc.,] § 1033.5, subd. (c)(1)-(3).) These limitations apply whether 
16

the costs are awarded as a matter of right or in the court’s discretion. . . . [¶] ‘“When a 

prevailing party has incurred costs jointly with one or more other parties who are not 

prevailing parties for purposes of an award of costs, the judge must apportion the costs 

between the parties [based on the reason the costs were incurred and whether they were 

reasonably necessary to the conduct of the litigation by the jointly represented party who 

prevailed].”’” (Charton v. Harkey (2016) 247 Cal.App.4th 730, 743-744 (Charton), final 

brackets in original.) 

Although not cited or analyzed by Parent, general federal standards for 

determining prevailing party attorney fees and cost awards similarly require courts to 

exercise discretion and consider what attorney fees and costs were reasonably incurred in 

light of the prevailing party’s degree of success in the litigation. In the trial court’s order

awarding attorney fees, the court correctly cited Hensley v. Eckerhart (1983) 461 U.S. 

424, 433 (Hensley) in summarizing the “general law” applicable to the determination of 

the attorney fees award. 

In Hensley, supra, 461 U.S. 424, the United States Supreme Court 

explained that “[t]he standards set forth in [its] opinion are generally applicable in all 

cases in which Congress has authorized an award of fees to a ‘prevailing party.’” (Id. at 

p. 433, fn. 7.) It therefore logically follows that the standards articulated in Hensley

apply to FLSA actions. The United States Supreme Court in Hensley, supra, 461 U.S. 

424 summarized these standards as including the following: “A typical formulation is 

that ‘plaintiffs may be considered “prevailing parties” for attorney’s fees purposes if they 

succeed on any significant issue in litigation which achieves some of the benefit the 

parties sought in bringing suit.’ [Citation.] This is a generous formulation that brings the 

plaintiff only across the statutory threshold. It remains for the district court to determine 

what fee is ‘reasonable.’ [¶] . . . [¶] The district court also should exclude from this 

initial fee calculation hours that were not ‘reasonably expended.’ [Citation.] Cases may 

be overstaffed, and the skill and experience of lawyers vary widely. Counsel for the 
17

prevailing party should make a good-faith effort to exclude from a fee request hours that 

are excessive, redundant, or otherwise unnecessary.” (Id. at pp. 433-434, fn. omitted.) 

The Supreme Court explained that “[t]here is no precise rule or formula” for calculating 

an award that reflects the degree of success obtained by a litigant and the trial court 

“necessarily has discretion in making this equitable judgment.” (Id. at pp. 436-437.)

Parent argues the trial court erred by including in its allocation of the

amount of attorney fees and costs awarded to Quiles fees and costs that had been jointly 

incurred by Quiles and other plaintiffs in the litigation leading up to the trial of her 

wrongful employment termination claim because the litigation remains pending as to 

those other plaintiffs. Even assuming the legal standards applied in Fennessy, supra, 218 

Cal.App.3d 1192 govern here, they do not support Parent’s argument. 

In Fennessy, supra, 218 Cal.App.3d at page 1194, six jointly represented 

defendants moved for summary judgment, but only one of them prevailed and obtained a 

judgment in his favor. That single prevailing defendant then sought to recover all costs 

incurred by the six jointly represented defendants. (Ibid.) The trial court denied the 

plaintiff’s motion to tax costs. (Ibid.) The appellate court reversed, explaining the 

prevailing defendant may recover only those costs actually incurred by that defendant or 

on his behalf in defending the case, holding: “[W]here a prevailing party incurs costs 

jointly with one or more parties who remain in the litigation, during the pendency of the 

litigation that party may recover only costs actually incurred by a party or in its behalf in 

prosecuting or defending a case.” (Id. at p. 1196.) The appellate court concluded the trial 

court erred in awarding the prevailing defendant “the total costs claimed without 

ascertaining whether he in fact incurred such costs” and remanded to provide the 

prevailing defendant the opportunity “to prove those costs actually incurred by him in 

defending against this litigation.” (Id. at p. 1197.)

In Charton, supra, 247 Cal.App.4th at pages 735 to 736, unlike in Fennessy

the litigation had concluded as to all parties. One defendant had prevailed, two 
18

defendants had not prevailed in defending claims against them, and claims against a 

fourth defendant, inexplicably, were never tried. The trial court awarded the single 

prevailing party defendant 25 percent of “the total amount of recoverable costs” in the 

case. (Id. at p. 737.) The plaintiffs challenged the cost award, arguing that the prevailing 

defendant did not incur some or all of the costs for her own benefit and they were not 

reasonably necessary to the conduct of her defense. A panel of this court “reversed as to 

the trial court’s across-the-board reduction in the amount of costs based on the number of 

jointly represented defendants” and remanded for the trial court to determine which 

specific costs the prevailing party incurred and whether they were reasonably necessary 

to her defense. (Id. at pp. 743, 745.) 

The Charton court explained that Fennessy was factually distinguishable 

because in Fennessy, the action remained pending against a majority of the jointly 

represented defendants while in Charton, the litigation had concluded. The court noted: 

“This distinction, however, affects only how the court applies the underlying principle to 

particular cost items; it does not change the underlying principle. A prevailing party who 

is represented by the same counsel as a nonprevailing party may only recover those costs 

the prevailing party incurred and were reasonably necessary to the prevailing party’s 

conduct of the litigation, not the other jointly represented parties’ conduct of the 

litigation. [Citations.] Whether to award costs that were incurred by both the prevailing 

party and the nonprevailing party, and were reasonably necessary to the conduct of the 

litigation for both the prevailing and nonprevailing party, is left to the trial court’s sound 

discretion based on the totality of the circumstances. [Citation.] [¶] In allocating costs 

between jointly represented parties, however, the trial court may not make an across-theboard reduction based on the number of jointly represented parties because such an 

allocation fails to consider the necessity or reasonableness of the costs as required by 

[Code of Civil Procedure] section 1033.5, subdivision (c). [Citation.] Instead, when 

allocating costs between jointly represented parties, the court must examine the reason 
19

each cost was incurred, whether the cost was reasonably necessary to the conduct of the 

litigation on behalf of the prevailing party, and the reasonableness of the cost.” (Charton, 

supra, 247 Cal.App.4th at pp. 744-745, italics added.)

The Charton court continued: “Here, the trial court made an across-theboard allocation based on the number of jointly represented defendants, awarding Harkey 

25 percent of all costs defendants incurred because she was one of four jointly 

represented defendants. The court erred because it failed to apply the proper legal 

standards in making the allocation. [Citation.] We therefore reverse and remand for the 

trial court to allocate costs based on the foregoing principles.” (Charton, supra, 247 

Cal.App.4th at p. 745.)

Neither Fennessy nor Charton hold that the trial court must wait to allocate 

costs between jointly represented parties until litigation has ended as to all of them. 

Instead, the trial court may determine the cost award for a prevailing party by examining 

the reason each cost was incurred, whether the cost was reasonably necessary to incur in 

the litigation, and the reasonableness of the amount of the cost incurred. Our record 

shows the trial court understood the applicable legal standards. 

The record shows the trial court was aware of the correct legal standard for 

allocating costs among multiple defendants in determining attorney fees and costs awards 

for Quiles, and nothing in the record suggests that correct standard was not applied by the 

court. Parent’s argument that such awards must be reversed on the ground they included 

jointly incurred costs among some parties with litigation still pending is therefore without 

merit.

V.

THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING ATTORNEY FEES AND 

COSTS PARENT CONTENDS WERE UNRELATED AND UNNECESSARY TO QUILES’S FLSA

CLAIM.

Parent argues the trial court abused its discretion by awarding Quiles 

attorney fees and costs related to the bench trial on the alter ego and joint employer issues 
20

and by awarding her certified mail costs, none of which, he argues, were reasonable or 

necessary to the successful litigation of Quiles’s wrongful employment termination 

claim. We conclude the court did not abuse its discretion.

A.

Attorney Fees and Costs Incurred in Proving Parent Was a Joint Employer.

Parent argues that in Citicorp Indus. Credit, Inc. v. Brock (1987) 483 U.S. 

27, the United States Supreme Court interpreted the phrase “any person” found in an

FLSA provision prohibiting introducing goods into interstate commerce that were 

procured in violation of certain wage provisions, to include non-employers as well as 

employers. As section 215(a)(3) also establishes liability against “any person,” and not 

just an employer for retaliatory employment terminations, Parent argues the bench trial at 

which he was proved to be a joint employer was unnecessary and unrelated to holding 

him liable for Quiles’s wrongful employment termination claim. Parent argues: “In 

other words, [Parent] could have been held liable for wrongful termination of [Quiles] 

whether he had been a joint employer or not. The finding that he was a joint employer 

was unnecessary and unrelated to [Quiles]’s success on this claim.” Therefore, Parent 

contends, costs and fees awarded in connection with the joint employer trial should not 

have been awarded.

Whether Parent might have been found liable for wrongful employment 

termination in violation of the FLSA as a person and not as a joint employer is not the 

relevant question. The relevant question is whether the determination that he was 

Quiles’s joint employer was necessary and related to her successful FLSA claim—it was. 

Parent’s argument suggests that a successful litigant may be awarded only those fees and 

costs that are related to the absolute minimum effort that might result in prevailing at 

trial. The legal standards do not direct trial courts to so approach requests for attorney 

fees and costs, but to determine what costs and fees were reasonably and necessarily 

related to the successful claim.
21

While Parent is correct that section 215(a)(3) prohibits “any person” from 

retaliating against an employee for filing an FLSA action, it is section 216(b) that creates 

the private right of action against any “employer” who violates section 215(a)(3) and sets 

forth the penalties for any such violation. By proving Parent was a joint employer with 

regard to Quiles, she was able to more directly (and efficiently) prove Parent’s direct 

liability to her under section 216(b) once she proved her employment had been 

terminated because she filed an FLSA action. 

B.

Certified Mail Costs

Without citing any legal authority, Parent argues there was no reasonable 

explanation for the trial court awarding Quiles her certified mail costs and thus abused its 

discretion in doing so. As discussed ante, federal courts have awarded postage and 

courier costs in FLSA matters. In her respondent’s brief, Quiles states she “started 

sending correspondence via certified mail so that she would have proof of Parent’s 

counsel’s receipt of such correspondence, after Parent’s counsel insisted he had not 

received correspondence that was sent to him on multiple occasions.” 

In his reply brief, Parent does not respond to Quiles’s proffered

explanation. Instead, he argues the trial court never made an express finding regarding 

the reasonable necessity of Quiles sending correspondence via certified mail. For the 

first time on appeal, and without any citation to the record, Parent then argues in his reply 

brief, “Further, the majority of the certified mail costs did not even relate to the 

Respondent’s retaliation claim.”8 Parent has failed to demonstrate any abuse of 

discretion.

 

8

 In his reply brief, Parent states that a statutory notice under the Labor Code Private 

Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.), which related exclusively to 

dismissed state claims, was properly sent by certified mail. Parent does not state in his 

appellate briefing whether the cost of that certified notice was included in the court’s 

award of costs.
22

DISPOSITION

The judgment is affirmed. Respondent shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

IKOLA, J.