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.Read More >
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.
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.Read More >
Author: Michael S. Dorsi
Extraordinary times call for extraordinary measures. And California civil procedure has an answer to the need for immediate orders from a court: you can, on one day, file your case, make your first motion, obtain a temporary restraining order, and have the court set a date when the defendant is ordered to show cause why a Temporary Restraining Order should not be granted.
What is the trick to winning such a big, early victory for a client?
First, the relief must fit the facts. That the defendant owes a lot of money is typically not going to be enough for an early court order. A court can order the defendant to pay later. The Opening Day TRO requires something more than just monetary damages.
Second, you, the attorney, should get to know the courtroom. Different counties have different procedures. Marin County assigns cases to a single judge, so that same judge hears your ex parte application, your noticed motions, your case management issues, and your trial. San Francisco assigns several judges to civil trials full-time, while two different courtrooms handle motions (Department 501 for cases dealing with real property and housing, Department 302 for everything else). And while some judges take the bench, others send out a clerk to talk to the parties and report back with the papers. Having experience in the specific courtroom is best, but if you don’t have that, at least show up and watch ex parte applications in the appropriate courtroom.
Third, cross your t’s and dot your i’s. The easiest way for a court to deny an ex parte application is for failure to follow procedure. Sometimes that means delivering a courtesy copy of your papers even before you file them at the clerk’s office. Don’t worry if it seems strange, you will be more successful if you just do what the court wants.
Author: Trina M. Clayton
When hiring a new employee, many employers find it valuable to observe a candidate perform essential job skills, to help them select the right applicant. An employer may ask a candidate to demonstrate how they would actually perform the job – for instance – having a delivery driver lift heavy boxes, having a cook demonstrate food preparation skills, or having an office worker perform a typing test. Employers should be mindful, however, that depending on what the applicant is asked to do during an interview, and how much time it takes, they may need to pay the applicant for this “try-out” time.
According to the California Division of Labor Standards Enforcement (DLSE), there are three principal factors to consider when determining whether “try-out” time needs to be paid.Read More >
Author: Trina M. Clayton
Federal and California fair housing laws, most notably the Fair Housing Act (42 U.S.C. 3601, et seq.) and the Fair Employment and Housing Act (Cal. Gov. Code §§ 12900, et seq.), prohibit discrimination in housing rental or conditions based on specific protected classes, such as race, sex, religion, disability, and (the subject of this blog post) familial status.
Familial status refers to any household with children under the age of 18. It applies whether the minor is a biological child, adopted, a foster child, or legally under the custody or guardianship of an adult tenant. It applies to both traditional and non-traditional families. It also applies to pregnant women, as well as families that are in the process of securing legal custody of children through adoption, foster care, or divorce. It is illegal to discriminate against a prospective or current tenant because there is a child, or will be a child, in the home.
It is important to understand that familial status discrimination may occur at any stage of property rental. This blog will explore some of the pitfalls a landlord might run into, during the pre-tenancy period.Read More >
Author: Michael S. Dorsi
Many clients actively work with their attorneys to minimize their bills, and understandably so. Some choices are within the client’s control, such as making a motion for summary judgment. Others are not — like when the other side files a motion.
I have always understood the conventional wisdom to be that the moving party ends up with a larger bill for motion work – at least in California where the moving party writes two briefs, while the opposing party writes only one. But a review of past matters suggests this may be incorrect.
Looking at federal court motions in the 2014-2016 timeframe, I found that opposing a motion often consumed more attorney hours — and resulted in higher bills — than making a similar motion. It was a small sample size, but the result is consistent with a different analysis: when you decide the strategy, you have more control over costs. But when the other side picks their spots, maybe lawyers end up spending more time adjusting to the other side’s focus.
Attorneys: does this match your experience?
Academics: there are a lot of attorney bills in the public domain because of fee applications — perhaps this would be a good subject for research . . .
 Some courts, such as the U.S. District Court for the District of Massachusetts, have only one brief by each side unless there is a reason to have additional briefing. See D. Mass. Local Rule 7.1(b)(2)–(3).
Author: Michael S. Dorsi
Attorneys often must choose where to file a lawsuit. They must estimate where the judge will be more favorable on procedure and substance, which court has more favorable procedures, and where the jury pool may be more sympathetic to the client. And readers should not be shocked to learn that attorneys often consider the political leanings of judges.
However, forum shopping to the Ninth Circuit Court of Appeals can have unintended consequences. While the Ninth Circuit has a liberal reputation and has historically ruled in ways that pleased Democrats and against President Trump, it is also a large court. Six of the twenty-two active judges were appointed by George W. Bush, and another eight judges on senior status were appointed by Republican presidents. Every sitting, numerous litigants draw a panel with two or three Republican-appointed judges. Many of these Republican appointees are well-regarded by lawyers and litigants of all political stripes, but if a plaintiff’s goal is to file in the Ninth Circuit and draw a politically friendly panel, that is just bad math.Read More >
Author: Trina Clayton
On April 30, 2018, the California Supreme Court issued an opinion in Dynamex Operations West, Inc. v. Superior Court, which could change the workplace status of people across the state. With this new ruling, the Supreme Court has clarified the standard for determining whether workers in California should be classified as employees or as independent contractors for purposes of the wage orders adopted by California’s Industrial Welfare Commission (“IWC”). Most notably, IWC orders apply to issues such as overtime pay and meal and rest break requirements.
The Court’s unanimous decision in Dynamex has particular implications for members of the gig economy, such as Uber, Lyft, and Amazon, as well as members of other industries, including cannabis.
With this recent ruling, the Supreme Court essentially abandoned a standard that California courts had used for 30 years to determine employment status, based largely on how much control a business exercised over wages, hours and working conditions. Instead, the Court in Dynamex applied the “ABC” standard (used in several other states) which sets out that a California worker is presumed to be an employee, not an independent contractor. Workers are permitted to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions:Read More >
Author: Trina M. Clayton
There has been a marked increase in familial status suits over the past several years, with many more that settle under confidential agreements for monetary damages, making the potential for these claims quite serious. A landlord found to be in violation of familial status housing laws could incur any number of penalties including:
- Civil penalties of up to $16,000 for a first violation and $65,000 for future violations;
- Actual damages to reimburse a tenant or prospective tenant for costs incurred because of the alleged discrimination such as paying for the tenant’s out-of-pocket expenses for finding alternative housing or rent fees associated with alternative housing;
- Damages to compensate a tenant or prospective tenant who has suffered humiliation, mental anguish or other psychological injuries as a result of the alleged discrimination;
- Punitive Damages; and
- Attorney fees
A landlord may also be ordered by the court to take specific action to reverse the alleged discrimination (such as renting to a family which the landlord had initially rejected), and participate in fair housing training.
It is imperative a landlord abide by federal, state and local laws regarding Fair Housing. For specific legal advice on familial status or other types of housing discrimination, please contact Ad Astra for guidance.