2018 has been a big year for legal developments affecting employers. Not only has Governor Brown been hard at work signing new legislation, California courts and the United States Supreme Court have ruled on important issues that permeate employment law. Our employment team has put together a review of the laws that took effect as recently as July 1st, the ones enacted at the beginning of the year, and an update on proposed bills being discussed in the state legislature.
Click to read the Mid-Year Employment Law Review
The Maloney Firm is proud to announce that Greg Smith has been named a 2018 Rising Star in Southern California Super Lawyers Magazine.
This is the third consecutive year that Greg has received this distinction which is bestowed on only the top 2.5% of attorneys who are under age 40.
By Vanessa Willis, The Maloney Firm, APC
Under the Labor Code Private Attorneys General Act of 2004 (PAGA), an employee is required to provide written notice to the employer and the Labor and Workforce Development Agency (LWDA) before filing a lawsuit. The purpose of this notice requirement is to provide the LWDA with the opportunity to decide whether to investigate a case before an employee may file a civil lawsuit on his/her own.
In Khan v. Dunn-Edwards Corp. (2018) 19 Cal.App.5th 804, a former employee alleged that his employer failed to pay final wages immediately upon termination, and that his final paystub was inaccurate. He filed a suit on behalf of himself and other employees who had been similarly situated. However, his PAGA notice to LWDA and to the employer referred only to his individual claims and made no mention of any other Labor Code violations; moreover, it did not reference any other current or former employees besides himself.
The court granted summary judgment in favor of the employer in a PAGA lawsuit on the grounds that the employee failed to provide a legally sufficient PAGA notice. The Court of Appeal affirmed this decision in January 2018. The Court of Appeal held that the employee’s PAGA notice was legally inadequate because the employee had brought a representative PAGA claim but his notice referred only to the plaintiff himself.
This case represents a procedural victory for employers and stresses the importance of reviewing PAGA notices for accuracy. Recently, courts have been strictly applying the PAGA notice requirements set forth in the statute as a mandatory procedural prerequisite. Employers (and their counsel) should carefully review any PAGA letters to see whether any similar inadequacies may potentially invalidate PAGA claims.
Congratulations to Patrick Maloney for being named to the 2018 Southern California Super Lawyers list, an honor bestowed upon only 5% of attorneys. This is the fourth consecutive year that he has been honored.
Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional
achievement. The annual selections are made using a patented multiphase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by
practice area. The result is a credible, comprehensive and diverse listing of exceptional attorneys.
2018 Employment Law Updates
By Vanessa Willis, The Maloney Firm, APC
The State of California and our local governments have enacted a wide range of employment-related laws that took effect on January 1, 2018, and a few that will take effect during the year. Below is a brief summary of five of the new laws that we believe are most relevant and likely to impact businesses. Please do not consider this list to be comprehensive. In efforts to remain compliant with these new laws, please review this information carefully and please update your policies and procedures accordingly.
Samantha Botros and Bud Davis joined The Maloney Firm as law clerks during the past summer. We are excited to announce that after receiving their Bar results in November, they are now Associates with the firm. Please join us in welcoming them!
Samantha can be reached at 310.347.4693 or firstname.lastname@example.org
Bud can be reached at 310.347.4692 or email@example.com
THE MALONEY FIRM OBTAINS COURT OF APPEAL REVERSAL OF ADVERSE RULING ON ANTI-SLAPP MOTION
On August 24, 2017, the California Court of Appeal for the Second Appellate District issued an opinion reversing an order dismissing claims asserted by a client of The Maloney Firm, APC and vacating an order that the client pay attorneys’ fees. Carl I. S. Mueller prepared the appellate briefing, and Patrick Maloney argued the matter to the Court of Appeal.
The appeal stemmed from the trial court’s erroneous order that a cross-complaint filed by The Maloney Firm was brought in retaliation against the plaintiff for filing suit, thereby violating California’s Anti-SLAPP statute. The Court of Appeal reversed the trial court’s order, holding that the trial court misapplied the legal doctrine upon which the trial court’s ruling was based. In short, the Court of Appeal held that the fraudulent behavior on which the cross-complaint was based was not protected by the First Amendment and thus not insulated by the Anti-SLAPP statute. As a result of the Court of Appeal’s ruling, a fraud claim that the trial court had erroneously dismissed has been reinstated and the client is relieved of responsibility to pay his adversaries’ legal fees.
The entire ruling can be found here.
California Court of Appeals Clarifies Procedure for Seeking Costs Under CCP § 998 During Arbitration
By Carl Mueller, The Maloney Firm, APC
In Heimlich v. Shivji, the California Appellate Court Appellate Case No. H042641, the California Court of Appeal recently clarified the procedure for both seeking an award of costs pursuant to Cal. Code of Civil Procedure (“CCP”) § 998 during arbitration and how to seek those costs from the California Superior Courts should an arbitrator refuse to enforce CCP § 998.
Alan Heimlich, an attorney, brought suit against Shiraz M. Shivji for unpaid legal fees. After approximately a year of litigation and after Mr. Shivji had made a settlement offer under CCP § 998 for $30,000, Mr. Shivji successfully moved to compel the case into arbitration proceedings per an arbitration clause within his retainer agreement with Mr. Heimlich. The arbitration was conducted with AAA, and per the terms of the arbitration provision, “in accordance with California law.”
After the arbitrator issued a final award finding that neither party owed the other any money, Mr. Shivji’s counsel sent an email to the arbitrator seeking guidance on the procedure for moving for costs under CCP § 998. The arbitrator refused to hear the motion for costs, as he claimed he “no longer had jurisdiction to take any further action in this matter.”
Mr. Shivji then moved for the Superior Court to confirm the arbitration award and for costs under CCP § 998. The trial court confirmed the arbitration award, but denied the request for costs, because “it was incumbent upon the defendant to raise the CCP issue with the arbitrator on a timely basis.” That is to say, the trial court ruled that Mr. Shivji should have sought costs under CCP § 998 before the arbitrator issued its decision determining that Mr. Shivji was entitled to costs under CCP § 998.
In its decision, the Court of Appeal found such a decision to be unjust, and concluded that both statutory and case law policies required that Mr. Shivji should be able to seek costs under CCP § 998. As such, the decision includes guidance on how a party to arbitration may seek costs under CCP § 998 without prematurely offering evidence of the offer:
Rather than requiring this party to violate section 998, subdivision (b)(2) by prematurely disclosing the existence of a rejected offer in arbitration proceedings, we believe a party’s section 998 request should be deferred until after the arbitration award is made. If and when a party makes a section 998 post-award request, an AAA arbitrator is empowered to recharacterize the existing award as interim, interlocutory, or partial and proceed to resolve the section 998 request by a subsequent award.
In addition, the Court of Appeal issued the following guidance for parties facing an arbitrator refusing to consider a motion for costs under CCP § 998, instructing parties to seek a ruling from the trial court charged with confirming the arbitration award:
We have concluded that the arbitrator should have reached the merits of Client’s post-award section 998 request by recharacterizing his final decision as an interim or partial final decision. We note that when a trial court vacates an arbitration award because the arbitrator refused to hear material evidence, the court’s power to remand the matter to the same arbitrator is limited. “If the award is vacated on the grounds set forth in paragraph (4) or (5) of subdivision (a) of Section 1286.2, the court with the consent of the parties of the court proceeding may order are hearing before the original arbitrators.” (§ 1287.) This restriction should not preclude [Mr. Shivji] from obtaining a decision on the merits of his section 998 request. If the parties in this case do not consent to a rehearing by the original arbitrator, the trial court is required un Pilimai to decide the Client’s section 998 request.
In short, the Court of Appeal ensured that the costs provision under CCP § 998 is available to parties in arbitration — at least those in AAA — notwithstanding whether the arbitrator will consider the request for fees.
THE MALONEY FIRM, APC, OBTAINS AWARD OF $2.37 MILLION, INCLUDING PUNITIVE DAMAGES, FOLLOWING TWO WEEK BENCH TRIAL IN A PARTNERSHIP DISPUTE
Attorneys Patrick M. Maloney and Carl I. S. Mueller represented plaintiff Frontline Capital, Inc. in a two week bench trial in Department 53 of the Los Angeles County Superior Court in February and March 2017. On June 16, 2017, after considering written and oral arguments, the trial court issued its Statement of Decision, granting Frontline Capital both compensatory and punitive damages.
Frontline Capital alleged, and the Court found, that Matt Wiltsey had siphoned off nearly $10 million in corporate funds for himself, without pro rata distribution to Frontline Capital. Mr. Wiltsey diverted the funds through a series of companies he wholly owned, and eventually those funds landed in trusts he established to hold his home and for the benefit of his son. The Court found that Wiltsey’s testimony was not credible and that the accounting records around which the defendants built their defense had been modified and were not reliable. The Court also found that Mr. Wiltsey had backdated documents in order to make the transactions appear legitimate.
Mr. Maloney may be reached at firstname.lastname@example.org, and Mr. Mueller may be reached at email@example.com.
The Maloney Firm is excited to celebrate our five year anniversary. Since opening its doors on June 1, 2012, the firm has enjoyed the opportunity and privilege of providing successful representation to hundreds of clients. The Maloney Firm devotes its practice to all facets of business litigation, employment litigation, legal malpractice, and fee dispute matters.
The firm has experienced robust growth and now boasts a carefully cultivated team of six attorneys and five support staff. Leveraging the strengths of each member of the team, the Maloney Firm has the ability to provide high quality legal representation in a cost-effective manner.
For more information contact Patrick Maloney at 310.540.1505 or firstname.lastname@example.org.