Waiting for Godot at the Clerk’s Office

Author: Michael S. Dorsi

California law permits plaintiffs to file a complaint and seek a temporary restraining order on an ex parte basis the day the plaintiff files the complaint. This is not for every case, but it is an important procedure when time is of the essence. Sometimes judges attempt to cajole the parties into an agreement that will hold until the judge can decide a fully briefed preliminary injunction, and sometimes judges will issue a TRO on the papers submitted on day one.

But to get to a day-one temporary restraining order, you must get past the clerk’s office.

San Francisco Superior Court adopted rules that make getting past the clerk difficult. For most civil cases, parties represented by an attorney file their complaint in hard copy, then all subsequent filings must be online via the e-filing system. This includes papers for ex parte appearances.

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DOL Set to Rescind Restrictions on Tip Pooling

Author: Sean Gentry

The U.S. Department of Labor is preparing to eliminate a 2011 restriction on certain hospitality employers from entering into tip-sharing agreements with individuals who are not customarily and regularly tipped.

The effect of this is that restaurant employers will likely be able to include kitchen and back-of-the-house employees in the tip pool.  This may alleviate problems some restaurants have had in retaining high quality back-of-the-house employees because it may allow employers to more easily compensate such employees in comparison to tipped employees.

As a reminder, employers are still subject to state laws.  In California this means that the tip-pool may not include any owners and most managers or supervisors, even if those individuals provide direct service to a customer.

The 9th Circuit Court of Appeals previously upheld this 2011 regulation, but that case is now before the U.S. Supreme Court in the case of Oregon Restaurant & Lodging Assoc. v. Perez.  Therefore, despite some serious concerns about the effects this change in policy may have on tipped employees nationwide, we expect to see dramatic changes this year as the DOL and Supreme Court weigh in on tip-pooling, and as California’s legislature might react by imposing some of its own new regulations.

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Attorneys’ Fees for Computer Misuse? What about for Defendants?

Author: Michael Dorsi

Attorneys who have dealt with computer misuse statutes know that while the federal Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030, provides federal jurisdiction, California’s Comprehensive Computer Data Access and Fraud Act (“CDAFA”), Cal. Penal Code § 502, has a broader scope and more plaintiff-friendly remedies. Those remedies include attorneys’ fees. But what happens if a plaintiff sues under the CDAFA, and loses. Can the defendant win fees?

There is a frustrating split of authority on this question.

The split is between Swearingen v. Haas Automation, Inc., No. 09CV473 BTM(BLM), 2010 WL 1495204, at *3 (S.D. Cal. Apr. 14, 2010), and US Source LLC v. Chelliah, No. G049481, 2014 WL 6977597, at *6 (Cal. Ct. App. Dec. 10, 2014). Swearingen says fees are for plaintiffs only; US Source says defendants* can win fees as well.

Normally this would be easy to work out. US Source is more recent and decided by the California Court of Appeal on a question of state law. Swearingen is a federal district court decision, so it is not binding on anyone (beyond its own case). Going forward, US Source ought to control.

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Tenants’ Rights in Single Family Homes

Author: Michael S. Dorsi

San Francisco’s Rent Ordinance rules concerning housing do not apply to single family homes, right? Wrong.

San Francisco has both eviction controls and rent controls.  California’s Costa-Hawkins Rental Housing Act (Civil Code § 1954.50 et seq.) exempts single family homes (and other separately alienable dwellings) from local government’s rules that limit rent increases. The San Francisco Rent Ordinance reflects this rule, exempting single family homes from the limits on rent increases. As a result, landlords renting out single family homes can raise the rent beyond the increases permitted by the San Francisco Rent Ordinance.

However, the San Francisco Rent Ordinance also has specific rules for owner move-in evictions.  Single family homes are governed, generally, by eviction controls.

Single family homes in San Francisco . . .

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