Wage Law The California Wage And Hour Law Weblog  Blog powered by TypePad Member since 12/2004 Brinker Petition for Review Status The petition for review is fully briefed in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25. Within three weeks, the court will grant review, deny review or issue an order extending their time to decide. So far, there are a dozen letters on file urging the court to review the case, including one from the California State Legislature and the Attorney General. If review is denied, there will be a lot of discussion about this case in your year-in-review seminars concerning employment litigation, wage and hour law and class action procedures. If review is granted, this will be the most highly anticipated wage and hour case since Gentry v. Superior Court (Circuit City Stores) (2007) 42 Cal.4th 443. October 03, 2008 in Class Actions, Meal/Rest Periods | Permalink | Comments (0) | TrackBack (0) The Economy and Wage & Hour Cases September was a slow month for blogging because it was a busy month for everything else. Our experience, and what we've been hearing from other wage and hour lawyers is that the economy is increasing workloads. More employers are cutting corners, more unemployed workers are talking to lawyers and more people are pursuing wage claims. That doesn't mean that wage and hour work is recession-proof. We know of several wage and hour class action settlements that fell apart or resulted in unpaid judgments as defendant banks, retail and restaurant chains have gone under, and we've seen several motions to withdraw for lack of payment of fees. October 03, 2008 in Miscellaneous | Permalink | Comments (0) | TrackBack (0) Hearsay So we're sitting in a coffee shop, not far from where a judge's convention happens to be taking place, minding our own business. We hear a couple talking loudly about class actions. We can't help but overhear. One of them goes on and on about a case:
It's a sweetheart deal; company not opposing; the plaintiff's lawyers are submitting huge bills.
They went to mediation just to get a recommendation on the fee issue, solely on the fee issue. ... It's all window dressing as far as I can see. ... had little charts with all the names of the people and the rates, and you could tell some of them weren't lawyers. Who are these people? Let's be real.
So we had a second hearing for hours and time. They still didn't give me what I wanted. So I said I'm going to give you one more chance.
They felt that X% was appropriate. You know how many claims were submitted? $50,000 worth. Then they submitted a request for $1.3 million in fees, talking about what a wonderful success they were.
I can set us up for an opinion on this one.
Then the other one pipes in:
"That's the one that bugs me sometimes!"
I don't mind settlements; I like to have my caseload diminished. But...
We turn around to see who these people are. Yes, they are judges. They appear to realize that they are sitting within earshot of a group of lawyers who can hear them chatting about the case, so they turn the volume down immediately, and within a few minutes, they are gone.
Whether you are a lawyer, or a judge, or just a businessman, you should alway be discreet. You just never know who's sitting near you. September 29, 2008 in Miscellaneous | Permalink | Comments (1) | TrackBack (0) Class Certification in the Age of Aggregate Proof We got a copy of an article called Class Certification in the Age of Aggregate Proof and thought it was a good read, so we pass it along to you. You have to register at SSRN to get it, but the registration is free. September 16, 2008 in Class Actions | Permalink | Comments (0) | TrackBack (0) Supreme Court Denies Review in Living Wage Case The Supreme Court has denied petitions for review and depublication in Amaral v. Cintas Corporation No. 2 (2008) 163 Cal.App.4th 1157. Amaral addressed the constitutionality and application of a living wage ordinance enacted by the City of Hayward and incorporated into its municipal contracts, as well as several issues regarding penalties, fees and costs in wage and hour cases. Cintas was the petitioner seeking review. The Supreme Court docket reflects that both sides sought depublication or partial depublication, and each opposed the other's depublication requests. There were depublication requests and oppositions to depublication requests filed by various non-parties, too. We discussed the opinion in a June post that can be found at this link. September 15, 2008 in Class Actions, Fees and Costs, Penalties, Published Opinions | Permalink | Comments (0) | TrackBack (0) Unintended Consequences In light of last month's decision in Brinker Restaurant Corp. v. Superior Court (2008) __ Cal.App.4th __, we've heard from quite a few plaintiffs' lawyers who are planning to make PAGA allegations a routine part of every meal and rest period case they file or continue to pursue. There is currently no requirement to certify a class in a PAGA case, but the Supreme Court has that issue under review in Arias v. The Superior Court of San Joaquin County (Angelo Dairy) (Supreme Court case no. S155965), which is now fully briefed.
That tactic may be less prevalent if the Brinker decision is reviewed by the California Supreme Court. Brinker became final 30 days after the decision was published. That date was August 21, 2008. Ordinarily, a petitition for review is due ten days after the decision becomes final. In fact, the petition for review was filed today. The Supreme Court now has 60 days (until October 28, 2008) to grant or deny review. The Supreme Court makes such decisions in its weekly conferences each Wednesday. In effect, this means the decision will come by Wednesday, October 22, 2008. However, the Supreme Court can grant themselves 30 day extensions, and they often do. It could easily, therefore, be the end of November before Brinker becomes non-citable, or remains citable. For now, it is good law. August 29, 2008 in Tactics | Permalink | Comments (0) | TrackBack (0) Holiday Computations Next Monday is another state court holiday, so don't forget to add a day to all your oppositions due this week. For future reference, here is a list of the California codes regarding dates to perform acts when the date falls on or after a court holiday.
Code of Civil Procedure § 135. Judicial holidays; alternate day of observance from Saturday or Sunday
Every full day designated as a holiday by Section 6700 of the Government Code, including that Thursday of November declared by the President to be Thanksgiving Day, is a judicial holiday, except September 9, known as "Admission Day," and any other day appointed by the President, but not by the Governor, for a public fast, thanksgiving, or holiday. If a judicial holiday falls on a Saturday or a Sunday, the Judicial Council may designate an alternative day for observance of the holiday. Every Saturday and the day after Thanksgiving Day is a judicial holiday. Officers and employees of the courts shall observe only the judicial holidays established pursuant to this section.
Government Code § 6700. State holidays; memorandum of understanding
The holidays in this state are:
(a) Every Sunday.
(b) January 1st.
(c) The third Monday in January, known as "Dr. Martin Luther King, Jr. Day."
(d) February 12th, known as "Lincoln Day."
(e) The third Monday in February.
(f) March 31st known as "Cesar Chavez Day."
(g) The last Monday in May.
(h) July 4th.
(i) The first Monday in September.
(j) September 9th, known as "Admission Day."
(k) The second Monday in October, known as "Columbus Day."
(l) November 11th, known as "Veterans Day."
(m) December 25th.
(n) Good Friday from 12 noon until 3 p.m.
(o) Every day appointed by the President or Governor for a public fast, thanksgiving, or holiday.
Except for the Thursday in November appointed as Thanksgiving Day, this subdivision and subdivisions (c) and (f) shall not apply to a city, county, or district unless made applicable by charter, or by ordinance or resolution of the governing body thereof.
If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action, except that if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act.
Code of Civil Procedure § 12. Computation of time
COMPUTATION OF TIME. The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.
Code of Civil Procedure § 12a. Computation of time; holidays; application of section
(a) If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday. For purposes of this section, "holiday" means all day on Saturdays, all holidays specified in Section 135 and, to the extent provided in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.
(b) This section applies to Sections 659, 659a, and 921, and to all other provisions of law providing or requiring an act to be performed on a particular day or within a specified period of time, whether expressed in this or any other code or statute, ordinance, rule, or regulation.
Code of Civil Procedure § 12b. Computation of time; day on which public office closed considered holiday
If any city, county, state, or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.
Code of Civil Procedure § 13. Holidays; postponing performance
CERTAIN ACTS NOT TO BE DONE ON HOLIDAYS. Whenever any act of a secular nature, other than a work of necessity or mercy, is appointed by law or contract to be performed upon a particular day, which day falls upon a holiday, such act may be performed upon the next business day with the same effect as if it had been performed upon the day appointed.
Code of Civil Procedure § 13a.. Special holidays; optional performance or postponement
Any act required by law to be performed on a particular day or within a specified period of time may be performed (but is not hereby required to be performed) on a special holiday as that term is used in Section 6705 of the Government Code, with like effect as if performed on a day which is not a holiday.
Any act required by law to be performed on a particular day or within a specified period may be performed (but is not hereby required to be performed) on a Saturday, with like effect as if performed on a day which is not a holiday.
Regrettably, we owe someone attribution for this list, but as it was passed on to us, it was without attribution. We're passing it along anyway, because one of our opposing counsel, and you know who you are, just can't keep these rules straight. August 25, 2008 in Miscellaneous | Permalink | Comments (1) | TrackBack (0) Public Comment Sought on Proposed Ethics Rule The State Bar seeks public comment on new Proposed Formal Opinion Interim No. 98-0001 (Offers of Settlement Conditioned on Client's Waiver of Statutory Right to Seek Attorney's Fees)
BACKGROUND: The State Bar Standing Committee on Professional Responsibility and Conduct (COPRAC) is charged with the task of issuing advisory opinions on the ethical propriety of hypothetical attorney conduct. In accordance with Tab 19, Article 2, Section 6(g) of the State Bar Board Book the Committee shall publish proposed formal opinions for a public comment period of no less than 60 days.
DISCUSSION/PROPOSAL: Proposed Formal Opinion Interim No. 98-0001 considers the situation where, in a lawsuit prosecuted by Attorney A against Defendant, Client has a statutory right to seek an award of attorney's fees. Attorney B, Defendant's counsel, makes a settlement offer, conditioned on Client's waiver of his statutory right to attorney's fees, that is insufficient to compensate Attorney A for her fees. (1) May Attorney A bar the settlement notwithstanding Client's desire to accept it? (2) Does Attorney B violate any ethical obligation by recommending or conveying the fee-waiver settlement offer in this case? (3) Does Attorney B violate any ethical obligation by recommending or conveying fee-waiver settlement offers in cases generally?
The opinion interprets rules 1-500, 3-210, 3-510 and 4-200 of the Rules of Professional Conduct of the State Bar of California; and Business and Professions Code sections 6068, 6069, and 6103.5.
The opinion digest states: 1) A lawyer must inform the client of a fee-waiver settlement offer and consummate the settlement in accordance with the client's wishes even if it reduces the likelihood of recovering some or all of his or her fees. 2) A lawyer does not violate any ethical obligation by recommending or conveying a fee-waiver settlement offer in a given case. 3) A lawyer does not violate any ethical obligation by recommending or conveying fee-waiver settlement offers in cases generally.
At its June 20, 2008 meeting and in accordance with its Rules of Procedure (State Bar Board Book Tab 19, Art. 2, Sec. 6(g)), the State Bar Standing Committee on Professional Responsibility and Conduct tentatively approved Proposed Formal Opinion Interim No. 98-0001 for a 90-day public comment distribution.
COMMENT DEADLINE: October 31, 2008
DIRECT COMMENTS TO:
Angela ChangOffice of Professional Competence, Planning and DevelopmentThe State Bar of California180 Howard StreetSan Francisco, CA 94105415-538-2116415-538-2171 Fax August 22, 2008 in Legislation/Regulations | Permalink | Comments (0) | TrackBack (0) Sick Leave Opinion to be Reviewed The Supreme Court has granted review in McCarther v. Pacific Telesis Group (2008) 163 Cal.App.4th 176 (Supreme Court case no S164692). All seven justices voted in favor of review. This is not a great surprise, as the opinion, which we discussed an earlier post, dealt with novel issues concerning sick leave rules in California. Moreover, review was urged by both the California Labor Federation and the California Chamber of Commerce, who rarely agree on such things. No statement of issues on review has yet been published. August 21, 2008 in Published Opinions | Permalink | Comments (1) | TrackBack (0) Are Unpaid Interns Entitled to Minimum Wage? Do you have interns? Or do you have a group of young employees who are being denied minimum wage? The answer might be more complex than you think, according to this recent article in the California Lawyer. August 19, 2008 in MCLE/Seminars | Permalink | Comments (0) | TrackBack (0) Next » California Labor Code California Labor Code Excerpts (DIR) Federal Judicial Center IWC Wage Orders Legal Aid Society Information Fact Sheets OSHA Workers' Page Workplace Fairness LaborProf Blog Jottings of an Employer's Lawyer Labor Employment Law Blog Ross's Employment Law Blog HR Lawyers' Blog California Employee Rights Blog What's New in Employment Law? California Labor & Employment Law Gruntled Employees The Most Popular Blawgs of All Time Storm's Employment Law Labor and Employment Law blog Workers Compensation News Toronto Employment Lawyer CalEmployeeRights The Laconic Law Blog The UCL Practitioner Declarations and Exclusions May it Please the Court On Point A Criminal Waste of Space LawSites My Shingle The Common Scold Legal Theory Blog SCOTUSblog California Appellate Report Class Action Fairness Act Blog Cal Biz Lit Legal Andrew the complex litigator The California Blog of Appeal ClassActionBlawg.com Overlawyered Class Action Defense Blog Blonde Justice Public Defender Dude Angry Pregnant Lawyer Ernie The Attorney The Greatest American Lawyer ProfessorBainbridge.com LexBlog Blog lex icon Cranky Greg's View unbillable hours Al Nye The Lawyer Guy Bag and Baggage Positive Liberty Legal Memo-Random The Irish Trojan’s Blog That's What She Said Disgusted Beyond Belief The Volokh Conspiracy California Labor Federation Center for Contract Compliance CPWR Labor Notes Laborers’ Health and Safety Fund of North America Luti's List of Resources SEIU.ORG The International Labor Communications Association Bimbos Bakeries Driver Class Action TGI Friday's California Class Action The San Bernardino IHOP Class Action The Wal-Mart Gender Discrimination Case on Truck Drivers Not Entitled to Prevailing Wage For Hauling From Public Works Projects on Truck Drivers Not Entitled to Prevailing Wage For Hauling From Public Works Projects Cranky Greg on Hearsay CabDesse on DLSE Memo Instructs Enforcement of Brinker Holding Vimal on Holiday Computations thangphung on Pacific Telesis Case Answers Novel Sick Leave and Kin Care Questions thangphung on Sick Leave Opinion to be Reviewed timothy moriarty on Tele-Seminar on Brinker this Friday at Noon Genesis McClendon on Darden settles another California wage class action Pablo on Pacific Telesis Case Answers Novel Sick Leave and Kin Care Questions
document.write('_qoptions = { tags:"typepad.core" }; _qacct="p-fcYWUmj5YbYKM"; quantserve(); |
|
