Gantman v. Stephan, Schreiber & Tabachnick CPA's CA2/7 ( 2022 )

Filed 4/18/22 Gantman v. Stephan, Schreiber & Tabachnick CPA’s CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
ANDREW GANTMAN, B291932
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS168144)
v.
STEPHAN, SCHREIBER &
TABACHNICK CPA’S, INC.,
Defendant and Respondent.
APPEAL from a postjudgment order of the Superior Court
of Los Angeles County, Edward B. Moreton, Jr., Judge. Affirmed.
Andrew Gantman, in pro. per., for Plaintiff and Appellant.
DeSimone & Huxster and Gerald DeSimone for Defendant
and Respondent.
_________________
Labor Code section 98.2, subdivision (a),1 authorizes parties
to a Labor Commission wage proceeding to file an appeal to the
superior court where the matter is heard de novo. Section 98.2,
subdivision (c), provides, if the party seeking review by filing the
appeal is unsuccessful, the court is to award costs and reasonable
attorney fees to the other parties to the appeal. Subdivision (c)
specifies, “An employee is successful if the court awards an
amount greater than zero.”
Andrew Gantman filed a claim against his former
employer, Stephan, Schreiber & Tabachnick CPA’s, Inc. (SST),
with the Labor Commissioner for unpaid wages and violations of
the Labor Code, including section 221, prohibiting an employer
from collecting sums owed to it from an employee’s wages, and
section 2802, requiring an employer to indemnify its employee for
necessary expenditures. Unsuccessful before the Labor
Commissioner, Gantman appealed to the superior court, where
the trial court found SST did not owe him any money and had not
violated any related provision of the Labor Code. We affirmed
the judgment in favor of SST earlier this year. (Gantman v.
Stephan, Schreiber & Tabachnick CPA’s, Inc. (Jan. 19, 2022,
B290271) [nonpub. opn.] (Gantman I).)
Gantman, representing himself, now appeals the trial
court’s award of $34,505 in attorney fees to SST pursuant to
section 98.2, subdivision (c), arguing, because the trial court
erred in awarding him nothing, attorney fees are not properly
awarded to SST. We affirm.
1 Statutory references are to the Labor Code unless
otherwise stated.
2
FACTUAL AND PROCEDURAL BACKGROUND
As discussed in Gantman I, Gantman, a certified public
accountant with a solo tax practice, and Peter Stephan, one of the
principals of SST, agreed in late 2014 to develop a business
relationship that could culminate in Gantman becoming one of
the owners of SST. The relationship ended in March 2015.
Gantman and SST disputed the nature and extent of their
agreement to compensate Gantman for work he had performed
for SST’s clients and Gantman’s obligation, if any, to contribute
to SST’s overhead during the several months Gantman worked
from SST’s offices.
Unable to resolve his dispute with SST over what he
asserted were unpaid wages and unreimbursed expenses, in
April 2015 Gantman, represented by counsel, filed a wage claim
with the Labor Commissioner. Following a hearing in
February 2016 (commonly referred to as a “Berman hearing”), the
hearing officer rejected SST’s argument Gantman was not an
employee, but awarded nothing because (among other reasons)
evidence of reimbursable expenses had not been submitted and
there was no independent evidence of an agreement to pay
Gantman $200 per hour for his SST client work.
Pursuant to section 98.2, subdivision (a), Gantman
appealed the adverse award to the superior court where,
according to the statute, “the appeal shall be heard de novo.”
(See Post v. Palo/Haklar & Associates (2000) 23 Cal.4th 942, 947-
948 [“Although denoted an ‘appeal,’ unlike a conventional appeal
in a civil action, hearing under the Labor Code is de novo.
[Citation.] ‘“A hearing de novo [under Labor Code section 98.2]
literally means a new hearing,” that is, a new trial.’ [Citation.]
The decision of the commissioner is ‘entitled to no weight
3
whatsoever, and the proceedings are truly “a trial anew in the
fullest sense”’”].) Gantman’s claim for unpaid wages was tried
before the court on December 13 and 14, 2017. Both sides were
represented by counsel during trial.
After posttrial briefing the court on March 21, 2018 issued
its ruling in favor of SST. The court found Gantman was an
employee of SST, the parties had agreed Gantman would be paid
for work he performed on behalf of SST’s clients, but there was no
agreement on the amount Gantman would be paid for that work.
With respect to Gantman’s compensation the court found
the hourly rate by which Gantman’s pay would be calculated
“was an ongoing subject of discussion (written and oral)” between
Gantman and Stephan. Therefore, the court concluded, Gantman
was entitled to be paid only at the applicable minimum wage at
the time ($9 per hour). According to the evidence at trial,
Gantman was paid $25,753.25 for his work for SST’s clients, a
sum that exceeded by a significant amount the minimum wage
for the claimed hours. Thus, “[Gantman] has not proven tha[t] he
was paid less than the amount to which he was entitled and he is
to take nothing in this lawsuit.”
Following the trial court’s decision in its favor, on April 5,
2018 SST moved for an award of attorney fees pursuant to
section 98.2, subdivision (c).2 On July 27, 2018, after briefing and
argument, the court granted the motion, awarding SST $34,505
2 Gantman elected to proceed in this appeal by way of
appendix. However, his appellant’s appendix does not include
SST’s motion for attorney fees, Gantman’s opposition, SST’s reply
in support of the motion or the court’s order granting the motion.
His civil case information statement, however, included the order
being appealed.
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in fees. An order granting SST’s motion for attorney fees was
filed on August 1, 2018. Notice of entry of the order was filed on
August 8, 2018. Gantman filed a notice of appeal on August 9,
2018, indicating on the subsequently filed case information
statement the attorney fees order was appealable as an order
after judgment under Code of Civil Procedure section 904.1,
subdivision (a)(2).3
DISCUSSION
We review the legal basis for an award of attorney fees
de novo and the amount of fees awarded for abuse of discretion.
(See Mountain Air Enterprises, LLC v. Sundowner Towers, LLC
(2017) 3 Cal.5th 744, 751 [“‘it is a discretionary trial court
decision on the propriety or amount of statutory attorney fees to
be awarded, but a determination of the legal basis for an attorney
fee award is a question of law to be reviewed de novo’”]; San
Francisco CDC LLC v. Webcor Construction L.P. (2021)
3 Although no judgment had been entered following the
court’s March 21, 2018 ruling, Gantman, representing himself,
filed a notice of appeal on May 21, 2018. At the direction of this
court, the parties obtained a judgment on December 2, 2021. For
purposes of Gantman I, we deemed the May 21, 2018 notice of
appeal to have been filed immediately after entry of judgment.
(Cal. Rules of Court, rule 8.104(d)(1).) That judgment, however,
only referred to the March 21, 2018 trial court ruling and did not
include the August 1, 2018 award of attorney fees to SST. The
court entered a second judgment on December 10, 2021, prepared
by counsel for SST, that confirmed its award of $34,505 to SST.
We treat Gantman’s August 9, 2018 notice of appeal as a timely
and proper appeal from a postjudgment order.
5
62 Cal.App.5th 266, 285 [same]; Orozco v. WPV San Jose, LLC
(2019) 36 Cal.App.5th 375, 406 [same].)
Gantman does not contend the trial court committed legal
error by misconstruing section 98.2, subdivision (c), or the scope
of its authority to award attorney fees following an unsuccessful
appeal (trial de novo) from the Labor Commissioner. Gantman
also acknowledges this court in Gantman I rejected each of his
challenges to the trial court’s decision on his wage claims.4
Nonetheless, contending the trial court did not properly award
him nothing (notwithstanding our decision that it did), Gantman
repeats many of the arguments he presented in the Gantman I
appeal, urges us to correct our prior analysis and to hold, on that
basis, SST was not entitled to attorney fees under section 98.2,
subdivision (c). Our jurisdiction to reconsider Gantman’s appeal
from the decision denying his wage claims has long since expired.
(See Cal. Rules of Court, rule 8.264(b)(1) [with exceptions not
pertinent here, a decision in a civil appeal is final in our court
30 days after filing].)
Because Gantman recovered nothing on his appeal
pursuant to section 98.2, subdivision (a), from the Labor
Commissioner’s adverse decision, SST was entitled to an award
of its attorney fees under section 98.2, subdivision (c). Gantman
does not contend the trial court abused its discretion in
determining the reasonable amount of fees incurred by SST.
Accordingly, the fee award is affirmed.
4 We also denied Gantman’s petition for rehearing following
our decision in Gantman I.
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DISPOSITION
The postjudgment order awarding attorney fees is affirmed.
SST is to recover its costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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