NOT TO BE PUBLISHED IN OFFICIAL REPORTS

OPINION

BEDSWORTH, ACTING P. J.

This is an appeal by defendant Baby Trend, Inc., from an order awarding attorney fees and additional costs to plaintiff Robert Paul Gardner, following entry of judgment in his favor on his various claims arising out of the termination of the parties' relationship. As we have reversed that judgment, and directed the trial court to enter judgment in Baby Trend's favor on the specific claims which provide for an award of attorney fees, as well as those claims the trial court believed justified the additional costs, we reverse the attorney fee and cost award as well.

FACTS

Gardner's third amended complaint alleged causes of action for: (1) wrongful termination in violation of public policy; (2) failure to reimburse business expenses; (3) unlawful deductions of wages earned and waiting time penalties; (4) violation of the Independent Sales Act;1 (5) retaliation; (6) unfair business practices; (7) breach of oral contract; (8) breach of the covenant of good faith and fair dealing; (9) fraud; (10) accounting; and (11) emotional distress.2 The first through third, and fifth causes of action (the employee-based claims) depended upon a factual determination that Gardner was Baby Trend's employee, rather than an independent contractor, when he was terminated.

After a long and complicated trial, Gardner prevailed. The net judgment entered against Baby Trend was $8,099,722, which was comprised of: $5,123,046 in economic damages "for wrongful termination and retaliation," $1,022,548 in "reimbursement of expenses," $1,511,946 for "unlawful deductions, unfair practices, and fraud," $275,000 for "emotional distress," $167,231 for waiting time penalties, and $1 for the violation of the Independent Sales Act.

Gardner filed a memorandum of costs, and Baby Trend responded with a motion to tax costs. Baby Trend's motion achieved some significant success, resulting in an order taxing approximately $64,000 in Gardner's claimed costs as not recoverable under Code of Civil Procedure section 1033.5.

Gardner then filed a motion to recover attorney fees, which were authorized under the Labor Code for a prevailing plaintiff in an action to recover unlawful deductions of expenses from commission payments, and wrongful refusal to reimburse employee business-related expenses, and to the prevailing party in an action alleging violation of the Independent Sales Act (Civ. Code, § 1738.16.) Gardner claimed to have incurred $936,966.25 in fees in the litigation, and sought to recover that entire amount, enhanced by a multiplier of two (for a total of $1,873,932.50), from Baby Trend.

Gardner also sought recovery of those costs which had been previously taxed by the court, arguing they were separately recoverable as "necessary expenditures" incurred by him as Baby Trend's employee, pursuant to Labor Code section 2802, subdivision (a), which provides "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful." (Italics added.)

Although Baby Trend argued that Gardner's attorney fees should be apportioned among those claims which allowed the recovery of fees, and those which did not (wrongful termination, fraud, breach of contract, waiting time penalties and unfair competition), the court ultimately determined no apportionment of Gardner's fees was necessary, because all of his claims were "factually interrelated," citing Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 417.

And while the court did refuse to apply any multiplier to Gardner's fees, it ordered Baby Trend to pay him $889,000, or 95 percent of the total fees he had incurred in the case. The court explained that its five percent reduction in the fees was an exercise of its "discretion" under Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388, to fix a "reasonable fee, noting Gardner had not been successful on all his claims and that his recovery had been somewhat reduced by posttrial motions.

The court was also persuaded by Gardner's claim that his litigation expenses qualified as "necessary expenditures" under Labor Code section 2802, and were thus recoverable against Baby Trend. The court awarded those expenses to Gardner, thus essentially nullifying its prior order taxing costs.

I

Baby Trend's primary challenge to the attorney fee order is simply a corollary to the arguments it asserted in the related appeal challenging the judgment itself: Baby Trend contends the judgment in Gardner's favor is fatally flawed, must be reversed, and that reversal of that judgment requires reversal of this fee award as well. We agree.

As we explained in our opinion in the related case, the jury actually rejected Gardner's claim that he had been transformed into Baby Trend's employee by virtue of an agreement entered into between the parties in January of 1999, and thus Baby Trend is entitled to have judgment entered in its favor on each of his employee-based claims. Those included two of the three causes of action relied upon as a basis for Gardener's attorney fee award: his claim for recovery of unlawful deductions taken from his commission payments, and his claim for wrongful refusal to reimburse his business-related expenses.

And the third cause of action relied upon to support Gardner's fee award — violation of the Independent Sales Act — suffered a similar fate. We concluded that claim was barred by the applicable statute of limitations as a matter of law, and thus that Baby Trend was entitled to have judgment entered in its favor on that claim as well.

Having suffered a reversal of the judgment on every claim supporting his attorney fee award, Gardner is not entitled to recover those fees against Baby Trend.

II

Baby Trend argues the court additionally erred by awarding Gardner approximately $64,000 in additional costs at the same time it made the fee award. We agree.

The court's decision to award the costs was based on the notion that the Labor Code provisions which entitle a prevailing employee to recover "reasonable attorney's fees and costs," implicitly allowed the employee to recover a broader category of costs (i.e., "all necessary expenditures or losses incurred") from his employer than would otherwise be allowed under Code of Civil Procedure section 1033.5. Specifically, the court coupled those Labor Code provision allowing the recovery of fees and costs with Labor Code section 2802, subdivision (a), which provides "An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful." (Italics added.) The court reasoned that the expenses of litigation to vindicate an employee's rights are "necessary expenditures or losses," and are thus recoverable as costs under this statute, even if they wouldn't be recoverable under Code of Civil Procedure section 1033.5.

We note the Ninth Circuit Court of Appeals has rejected this very notion, concluding that Labor Code section 2802 is specifically designed to indemnify employees for legal defense costs when they are sued for actions arising out of their employment, and thus it does not require the employer to pay the expense of an employee's affirmative litigation against the employer. (Freund v. Nycomed Amersham (2003) 347 F.3d 752.) However, we need not reach any conclusions on the point ourselves, as our opinion in the related case demonstrates the jury actually rejected Gardner's theory that he had been transformed into Baby Trend's employee, and it directs the trial court to enter judgment in Baby Trend's favor on each of Gardner's employee-based claims.

Since Gardner failed to prove he was a Baby Trend employee, he is not entitled to claim the benefits of Labor Code section 2802, whatever they might otherwise have been in this case.

The order is reversed.

O'LEARY, J. and ARONSON, J., concurs.