Category Archives: Trial

Jan 09 2011
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23(b)(2) Class, Claims, Class Actions, Class Notice, FLSA, Jury, Opt-in, Opt-out, Overtime, Preemption, Professional, Trial, Unfair Competition Law

Ninth Circuit Holds That Newspaper Reporters Not Exempt

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On Monday, the U.S. Court of Appeals for the Ninth Circuit affirmed in “all respects” the trial court’s grant of partial summary judgment to plaintiffs, a judgment after jury and bench trials, and an award of attorney’s fees to plaintiffs.  Wang v. Chinese Daily News, Inc., Nos. 08-55483, 08-56740, — F.3d —-, 2010 WL 3733568 (9th Cir. Sept. 27, 2010).  Among other things, the Ninth Circuit held that plaintiff newspaper reporters were non-exempt.  (Thank you to Randy Renick for bringing this case to my attention.)

Background

Employees of Chinese Daily News, Inc. (“CDN”), a Chinese-language newspaper, filed suit against CDN on behalf of current, former, and future CDN employees based in CDN’s San Francisco and Monterey Park (Los Angeles), California locations.  Id. *1.  Plaintiffs claimed violations of the FLSA, California’s Labor Code, and California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, alleging that employees were made to work in excess of eight hours per day and forty hours per week. Id. Continue reading →

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Jan 09 2011
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Attorneys' Fees, Bonuses, Class Actions, Collateral Estoppel/Res Judicata, Trial

Second District Reverses Class Action Judgment Relating to Bonuses Allegedly Due After Merger

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The Second District reversed a trial court’s judgment in favor of employees in a class action trial.  Pearline Zalewa v. Tempo Research Corporation, B210429, 2010 WL 3735240 (Cal. Ct. App. 2d Dist. Sept. 27, 2010).  Defendant  fiber-optic equipment manufacturer was sued in a class action by its former employees who claimed that the manufacturer breached an obligation to pay them annual bonuses, an obligation that allegedly continued for years after they were laid off from work during a business downturn.  Id. The court concluded that the employees were not entitled to any recovery: “All but two of the employees relinquished their right to sue when they were laid off, in return for compensation that exceeded their earned severance pay. In any event, there was no promise made to pay bonuses to the employees after they were laid off.”  Id.

The Trial Court’s Judgment

The trial court conducted a bench trial in January 2008, finding that plaintiffs were entitled to recover a direct bonus under theories of breach of contract, promissory estoppel, accounting, and unfair business practices. Id. The court deemed the bonus payments to be “wages” under the Labor Code. Id. And because the bonus payments are wages, plaintiffs were awarded prejudgment interest and attorney fees under the Labor Code. Id. The court enumerated the amount of the award for each employee, less offsets for monies already paid by defendants, plus interest. Id. The total amount of the award, including interest, was approximately $99,000, and plaintiffs’ counsel was awarded attorney fees of $881,715.  Id. Continue reading →

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Jan 09 2011
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Trial, Verdicts

Defense Verdict in Bartender Overtime and Meal Break Case

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After a bench trial, a San Francisco Superior Court rendered a defense verdict in an overtime and meal break case.  Tun Cun vs. Cafe Tiramisu, No. CGC08482090, 36 Trials Digest 13th 19 (Verdict Date March 26, 2009).  According to court records: Plaintiff Evangelina Tun Cun was a bartender under an oral employment agreement who worked form 4 pm to midnight. Ms. Tun Cun alleged she was owed wages from defendant Cafe Tiramisu LLC.  Plaintiff alleged she was also employed by MMP Restaurants LLC dba Campannina from 9 a.m. to 3 p.m. each day. She claimed the two employers jointly employed her, and she was not paid overtime, though she worked for 11 to 15 hours of work per day. Plaintiff claimed she was not given meal breaks, was not paid overtime, and was owed waiting-time penalties. Continue reading →

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Jan 09 2011
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Procedure, Trial

Expedited Jury Trial Bill Passes

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In a positive development for both plaintiffs and defendants, a bill establishing an expedited jury trial procedure has sailed through the California Legislature.  The Wall Street Journal Law Blog and The Recorder reported today that Assembly Bill No. 2284 was approved by the legislature on a unanimous vote.  The bill, entitled the Expedited Jury Trials Act, was introduced by Assembly Member Noreen Evans (D-Santa Rosa).  It calls for the establishment of strealined jury trials in civil cases, where the parties stipulate to them.  Some of the highlights:

  • Waiver of all rights to appeal, motions for directed verdict, and post-trial motions;
  • Only 3 hours per side to present its case;
  • Jury sizes of 8 or fewer, with no alternates, and only 3 peremptory challenges;
  • Provision for high/low agreements: (i.e., a voluntarily agreement specifying a minimum and maximum amount of damages, regardless of the ultimate verdict issued returned by the jury).

By CHARLES H. JUNG

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Jan 09 2011
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Trial

New Trial Granted for Arguing to Jury That Future Wages Are Recoverable Even After Resignation

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In an unreported opinion, Wolfson v. Tukatech, Inc., 2010 WL 3170521 (Cal. Ct. App. 2d Dist. Aug. 12, 2010), the Second District Court of Appeal considered whether a new trial was correctly ordered after plaintiff’s attorney argued to the jury about plaintiff’s right to recover for his future wages.  The Court of Appeal affirmed the new trial order because the “record supports the trial court’s finding that Wolfson’s trial counsel committed prejudicial misconduct when arguing to the jury about Wolfson’s right to recover for his future wages”.

The court held that the plaintiff’s attorney misstated the law by “repeatedly argu[ing] unauthorized instructions whose flaws should have been obvious, even after repeated objections to those instructions were sustained”; thus, the court held “that the trial court did not abuse its broad discretion by finding that misconduct occurred.” Continue reading →

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