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Pair of Interesting Non-Wage Decisions This Week From Second District

In Other Cases of Interest on May 8, 2013 at 11:46 am
Deposition of Mary Walcott, August 3, 1692

Deposition of Mary Walcott, August 3, 1692 (Photo credit: Wikipedia)

The Second District issued a pair of interesting non-wage opinions this week:

  • Yesterday, citing the absence of “subject matter jurisdiction”, the Second District held that that a non-noticing party in a deposition, who does not move for an order in the pending case for a determination of the “reasonable rate” a court reporter may charge, may not bring a subsequent action to obtain restitution or obtain injunctive relief.  The Las Canoas Company, Inc. v. Kramer, No. B238729, __ Cal. App. 4th. __ (2d Dist. May 7, 2013).  The court further concluded that “absent extraordinary circumstances, the court in the action in which the dispute arises is the only court to resolve the issue.” Slip Op. at 4 (emphasis supplied).  You can read more here.
  • On Monday, the Second District reversed a dismissal of a former deputy sheriff.  Shirey v. Los Angeles County Civil Service Commission (Los Angeles County Sheriff’s Department), No. B238355, __ Cal. App. 4th __ (May 6, 2013).  You can read about it here.

By CHARLES H. JUNG

Allowing Amendment of Complaint Near End of Trial Found an Abuse of Discretion

In Other Cases of Interest on April 30, 2013 at 5:45 pm
My new lateness reminder...

My new lateness reminder… (Photo credit: adityasen)

The Second District issued its ruling today in Duchrow v. Forrest, __ Cal. App. 4th __, No. B233736 (2d Dist. Apr. 30, 2013).  The panel held that the lower court abused its discretion by permitting an amendment to a complaint on the fourth day of a five-day trial, where there was no reason the amendment could not have been made sooner.  The court found prejudice because, inter alia, the damages sought changed from $44,082.22, as pleaded in the complaint, to $312,260 in attorney fees.   You can read more here.

By CHARLES H. JUNG

Attorney Disqualification Opinion Published: Khani v. Ford Motor Company

In Other Cases of Interest on April 26, 2013 at 7:53 pm
Ford Motor Company of Canada Limited, St. Thom...

Ford Motor Company of Canada Limited, St. Thomas Assembly Plant – Cars Stored at St. Thomas Municipal Airport, 1978 (Photo credit: Elgin County Archives)

The Second District yesterday ordered published Khani v. Ford Motor Company, et al., No. B239611, __ Cal.App.4th __ (2d Dist. Apr. 25, 2013).   Plaintiff’s attorney in a lemon law case previously worked at a law firm that represented defendant, reportedly provided unspecified “input” to defendant and communicated regularly with defendant about lemon law cases.  The trial court disqualified plaintiff’s counsel.  The Court of Appeal reversed, finding that:

The evidence in this case does not establish that any information to which Shahian was exposed during his representation of Ford would be material to his representation of Khani in this case. While Ford presented evidence that Shahian represented it in California Lemon Law cases, it did not establish that any confidential information about the defense in those cases would be at issue in this case.

You can read more here.

By CHARLES H. JUNG

A Pair of Employment Decisions Outside the Wage & Hour Context

In Other Cases of Interest on April 26, 2013 at 5:31 pm
English: War poster : Women are Working Day an...

English: War poster : Women are Working Day and Night to Win the War / Witherby & Co. London. Français : Affiche de guerre : Les femmes travaillent jour et nuit pour gagner la guerre (Photo credit: Wikipedia)

A pair of interesting, non-wage, employment decisions were issued today: one from the Ninth Circuit and the other from the California Court of Appeal for the Fourth District.

  • In California Department of Corrections and Rehabilitation v. State Personnel Board (Moya), No. D061653, __ Cal. App. 4th __ (4th Dist. April 26, 2013).  The court considered whether the Public Safety Officers Procedural Bill of Rights Act, Gov. Code § 3300, et seq., excepts internal workers’ compensation fraud investigations from the one-year limitations period established in section 3304, subdivision (d)(1).  The court concluded that it does and affirmed the judgment.
  • In Petersen v. Boeing Company, No. 11-18075, __ F.3d __ (9th Cir. Apr. 26, 2013), a district court dismissed plaintiff’s case on the basis of a Saudi forum selection clause without holding an evidentiary hearing as to whether plaintiff was induced to assent to the forum selection clause through fraud or overreaching.  The Ninth Circuit reversed, holding that a triable issue of fact existed as to whether the forum selection clause was enforceable.

By CHARLES H. JUNG

California Supreme Court Rejects Challenge to Governor’s Furlough Program

In Other Cases of Interest on October 6, 2010 at 10:15 pm
Arnold Schwarzenegger in July 2003
Image via Wikipedia

On Monday, the California Supreme Court held that the California “Legislature’s 2009 enactment of the revisions to the 2008 Budget Act operated to ratify the use of the two-day-a-month furlough program as a permissible means of achieving the reduction of state employee compensation mandated by the act.”  Professional Engineers in California Government v. Schwarzenegger, No. S183411, — Cal.Rptr.3d —-, 2010 WL 3835132, *2 (Cal. Oct. 4, 2010).  Accordingly, the Court concluded that the “2009 budget legislation validated the Governor’s furlough program here at issue, and rejected plaintiffs’ challenge to that program.  Id.

On December 1, 2008 Governor Arnold Schwarzenegger declared a fiscal emergency, called the Legislature into special session, and submitted to the Legislature a comprehensive plan to address the budget problem.  Id. *1.  The Governor’s budget plan included, among many other cost-saving features, two proposed statutory provisions that would impose a mandatory one-day-a-month unpaid furlough of most state employees employed by the executive branch.  Id. The Legislature later passed its own proposed comprehensive budget legislation, but the Legislature’s alternative plan did not include the Governor’s recommended furlough provision.  Id. Read the rest of this entry »

New York Enacts Overtime Law for Domestic Workers

In Other Cases of Interest, Overtime on August 31, 2010 at 12:30 pm
stills-my-pay.jpg
Image by janinsanfran via Flickr

The Washington Post reports today that New York Governor David Paterson has signed into law the nation’s first expansive domestic workers’ rights measure.  The law provides for overtime pay for domestic workers in addition to time off and protections against sexual harassment.

By CHARLES H. JUNG

SFPD Overtime Draws Scrutiny

In Other Cases of Interest, Overtime on August 31, 2010 at 11:22 am
Chief George Gascon, San Francisco Police Depa...
Image via Wikipedia

Shoshana Walter of The Bay Citizen reports that a recent audit says that the San Francisco Police Department has failed to properly monitor and control millions of dollars in overtime and premium pay.

The audit found many problems. One was that the department was not enforcing overtime limits and failed to properly document earnings and payments during a period of two years that ended right before Police Chief George Gascon took office in August 2009. Read the rest of this entry »

In a Split Opinion, Ninth Circuit Affirms Christian Humanitarian Organization’s Exemption From Title VII’s Prohibition Against Religious Discrimination

In Other Cases of Interest on August 24, 2010 at 2:42 pm
World Vision India
Image via Wikipedia

In Spencer v. World Vision, Inc., No. 08-35532, — F.3d —-, 2010 WL 3293706 (9th Cir. Aug. 23, 2010), the Ninth Circuit Court of Appeals considered whether a faith-based humanitarian organization is exempt from Title VII’s prohibition against religious discrimination.  Defendant World Vision describes itself as “a Christian humanitarian organization dedicated to working with children, families and their communities worldwide to reach their full potential by tackling the causes of poverty and injustice.” Id. *1.   Read the rest of this entry »

Chicago Sued Over BlackBerry Overtime

In Other Cases of Interest on August 14, 2010 at 1:00 pm

A  Chicago police sergeant has brought an FLSA collective action against the city for overtime pay related to the off-hours use of his BlackBerry PDA device.  The complaint in Allen v. City of Chicago, No. 10-CV-03183, was filed in U.S. District Court for the Northern District of Illinois.  You can view the complaint here.

Photo by Cheon Fong Liew

The complaint alleges that it is brought by a Chicago Police Sergeant on behalf of himself and other similarly situated members of the Chicago Police Department for purposes of obtaining relief under the federal Fair Labor Standards Act of 1938 as amended, 29 U.S.C. §201, et. seq. (hereinafter “FLSA”) for unpaid overtime compensation, liquidated damages, costs, attorneys’ fees, declaratory and/or injunctive relief, and/or any such other relief the Court may deem appropriate.

Defendant has willfully violated the FLSA by intentionally failing and refusing to pay Plaintiff and other similarly situated employees all compensation due them under the FLSA and its implementing regulations over the course of the last three years. Defendant administered an unlawful compensation system that failed to provide hourly compensation and premium overtime compensation to employees that work overtime hours “off the clock.” Plaintiff and similarly situated employees were issued personal data assistants (“PDA’s”), such as BlackBerry devices, that they are required to use outside their normal working hours without receiving any compensation for such hours. Defendant’s deliberate failure to compensate its Chicago Police Department employees for these hours worked violates federal law as set forth in FSLA.

The plaintiff’s attorneys are MaryAnn Pohl and Paul D. Geiger.

By CHARLES H. JUNG

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Judge Walker Lifts Stay

In Breaking News, Other Cases of Interest on August 12, 2010 at 1:13 pm
2008 Proposition 8 Protest
Image by Fibonacci Blue via Flickr

Judge Vaughn R. Walker of the Northern District of California today lifted a stay on his decision where he ruled that Proposition 8 was unconstitutional.  Judge Walker, however, delayed implementation of the order to lift his stay until August 18.

Defendant-intervenors Dennis Hollingsworth, Gail Knight, Martin Gutierrez, Mark Jansson and ProtectMarriage.com brought a motion to stay the court’s judgment last week to ensure that Proposition 8 remains in effect as they pursue their appeal in the Ninth Circuit. In the alternative, proponents sought a brief stay to allow the court of appeals to consider the matter.

San Francisco asked the court to deny the stay and order the injunction against Proposition 8 to take effect immediately. California’s Governor and Attorney General also opposed any stay.

The Court held that “[b]ecause proponents fail to satisfy any of the factors necessary to warrant a stay, the court denies a stay except for a limited time solely in order to permit the court of appeals to consider the issue in an orderly manner.”

Federal courts look to four factors in deciding whether a stay is appropriate:

(1) whether proponents have made a strong showing that they are likely to succeed on the merits;

(2) whether proponents will be irreparably injured absent a stay;

(3) whether the stay will substantially injure other interested parties; and

(4) whether the stay is in the public interest.

See Nken v. Holder, 556 U.S. —-, 129, S. Ct. 1749, 1761 (2009) (noting overlap with Winter v. Natural Resources Defense Council, Inc., 555 U.S. —-, 129 S. Ct. 365, 374 (2008)).  The first two factors “are the most critical.”  Nken, 129 S. Ct. at 1757.

The order reads:

None of the factors the court weighs in considering a motion to stay favors granting a stay. Accordingly, proponents’ motion for a stay is DENIED. Doc #705. The clerk is DIRECTED to enter judgment forthwith. That judgment shall be STAYED until August 18, 2010 at 5 PM PDT at which time defendants and all persons under their control or supervision shall cease to apply or enforce Proposition 8.

By CHARLES H. JUNG

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