§13657. Attorney's Fees and Costs.

(a) For the purpose of Labor Code Section 2673.1(f), the failure by the contractor or guarantor to pay the full amount of the assessment at the meet- and-confer conference shall be deemed to constitute a refusal to pay the full amount of the assessment, and the employee will subsequently be deemed to have prevailed at the hearing held pursuant to Labor Code Section 2673.1(d)(4), if the Labor Commissioner issues an order, decision or award in any amount in favor of the employee.

(b) For the purpose of Labor Code Section 2673.1(f), if the employee rejects the assessment at the meet-and-confer conference, the employee will subsequently be deemed to have prevailed at the hearing held pursuant to Labor Code Section 2673.1(d)(4), if the Labor Commissioner issues an order, decision or award in favor of the employee for a total amount (excluding attorney's fees and costs) greater than the amount deposited with the Labor Commissioner by the contractor or guarantor for payment to the employee of the amount assessed against the contractor or guarantor. To be considered for this purpose, the full amount of the assessment must be deposited with the Labor Commissioner at the meet-and-confer conference held pursuant to Labor Code Section 2673.1(f), for immediate and unconditional payment to the employee, regardless of the outcome of the hearing. Any such amounts deposited with the Labor Commissioner shall be transmitted to the employee forthwith, and a form shall be transmitted by a deputy labor commissioner to the hearing officer stating (without specifying the amount) that prior to the conclusion of the meet-and-confer conference, the contractor and/or guarantors unconditionally paid the full amount of the assessment to the employee. In the event that the full amount of the assessment is not so paid, attorney's fees shall be awarded to the claimant on the basis of any net recovery at the adjudicative hearing.

(c) Attorney's fees recoverable under Labor Code Section 2673.1(f) shall be based on the reasonable hours expended on the case multiplied by a reasonable hourly rate for the legal work performed. A reasonable hourly rate is the prevailing hourly rate charged by private attorneys in the geographic area with similar experience to that of the attorney(s) making the application for fees.

(d) Costs recoverable under Labor Code Section 2673.1(f) shall mean the costs of preparing for and proceeding with the hearing, including but not limited to witness fees, mileage fees, and cost of service of process.

(e) At the hearing held pursuant to Labor Code Section 2673.1(d)(4), the employee, or his or her attorney(s), shall submit evidence of reasonable attorneys' fees and costs sought to be recovered under Labor Code Section 2673.1(f). Such evidence may be in the form of a declaration signed by the attorney(s) under penalty of perjury, setting forth an itemization of hours worked on the case, the basis of the hourly rate(s) claimed, and costs incurred. The other parties at the hearing shall have the right to present any contrary evidence, and to cross-examine the employee, or his or her attorney(s), on these matters.

(f) Reasonable attorneys' fees and costs, if any, shall be included in the order, decision or award of the Labor Commissioner as follows:

(1) Reasonable fees and costs are awarded against the contractor if the contractor refused to pay the assessment and the claimant prevails at the hearing, as provided in subsection (a) herein;

(2) Reasonable fees and costs are awarded against the contractor if the claimant rejects the assessment and prevails at the hearing, as provided in subsection (b) herein;

(3) Reasonable fees and costs are awarded against the guarantor(s) if the guarantor(s) refuse(s) to pay the assessment, and the claimant prevails at the hearing, as provided in subsection (a) herein;

(4) Reasonable fees and costs are awarded jointly and severally against the guarantor(s) for the contractor's share of the attorney's fees and costs if the guarantor(s) acted in bad faith, within the meaning of Labor Code Section 2673.1(f).

NOTE: Authority cited: Section 2672, Labor Code. Reference: Sections 98 and 2673.1, Labor Code.

HISTORY

1. New section filed 9-9-2002; operative 10-9-2002 (Register 2002, No. 37).