Author Archives: International

Waiting Time Penalty

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Waiting Time Penalties in California

Public policy in California has long favored the full and prompt payment of wages due an employee. To ensure that employers comply with the laws governing the payment of wages when an employment relationship ends, the Legislature enacted Labor Code Section 203 which provides for the assessment of a penalty against the employer when there is a willful failure to pay wages [willful failure to pay wages within the meaning of Labor Code Section 203 occurs when an employer intentionally fails to pay wages to an employee when those wages are due. However, a good faith dispute that any wages are due will preclude imposition of waiting time penalties under Labor Code Section 203. Title 8, California Code of Regulations, Section 13520 The term “willful” as used in Labor Code Section 203 and as defined in civil court decisions does not necessarily imply anything blameworthy or evil intent, but rather that the person knows what he or she is doing, is a free agent, and fails to perform a required act.] due the employee at conclusion of the employment relationship. Assessment of the waiting time penalty does not require that the employer intended the action or anything blameworthy, but rather that the employer knows what he is doing, that the action occurred and is within the employer’s control, and that the employer fails to perform a required act.

Assessment of the penalty is not automatic however, as a “good faith dispute” [that any wages are due occurs when an employer presents a defense, based in law or fact which, if successful, would preclude any recovery on the part of the employee. The fact that a defense is ultimately unsuccessful will not preclude a finding that a “good faith dispute” did exist if the defense was reasonable and presented in good faith. Defenses presented, which, under all the circumstances, are unsupported by any evidence, are unreasonable, or are presented in bad faith, will preclude a finding of a “good faith dispute.” Title 8, California Code of Regulations, Section 13520] that any wages are due will prevent imposition of the penalty.

In order for the penalty to apply, there must be a true employer-employee relationship and a quit or a discharge, which includes a layoff.

The penalty applies to the willful failure to pay “any wages” [all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation. Labor Code Section 200(a) A “wage” is defined as money or other value that is received by an employee as compensation for labor or services performed. “Other value” could include room, board, clothes, and other benefits to which the employee is entitled as a part of his or her compensation], which refers to the definition of “wages” in Labor Code Section 200 [where “Wages” includes all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation, and “Labor” includes labor, work, or service whether rendered or performed under contract, subcontract, partnership, station plan, or other agreement if the labor to be paid for is performed personally by the person demanding payment]. Thus, all compensation must be considered in determining if all wages due were paid as prescribed by law. “Wages” does not include expenses. In calculating the penalty, overtime wages are considered only if overtime is regularly scheduled each week. Occasional or infrequent overtime is not considered in the calculation of the daily rate of pay for purposes of computing the penalty.

The penalty is measured at the employee’s daily rate of pay and is calculated by multiplying the daily wage by the number of days that the employee was not paid, up to a maximum of 30 days. This does not mean that the wages continue for a 30-day period, but that the employee may be entitled to up to 30 actual days’ worth of wages. The 30-day period is calendar days, and includes weekends and holidays and any other days that the employee would not normally work. Payment of the wages or the commencement of an action stops the penalty from accruing. Filing a complaint in court commences an action. An employee’s filing a claim with the Division of Labor Standards Enforcement (DLSE) is not considered the filing of an action, and does not stop the penalty from accruing.

The waiting time penalty is not wages, thus, no deductions are taken from the penalty payment.

Note: If the answer to any of the questions below states that the employee is entitled to the waiting time penalty, it is assumed that all of the conditions for imposition of the penalty exist and there is no good faith dispute that any wages are due.

1. Q. Seven days ago I gave my employer notice that I was quitting on Friday, which I did. I did not receive my final paycheck on that day, and on the following Monday called my former employer to find out when I would be paid. He informed me that my check was available and that I could come in and pick it up, and I told him I would do so. I purposely did not pickup my check until 10 days later, which was 13 days after I quit. Am I entitled to the waiting time penalty?

A. Yes, you are entitled to the waiting time penalty in the amount of three days’ wages. In this situation, since you gave your employer at least 72 hours prior notice that you were quitting and quit on the date you said you would, the employer’s obligation is to pay you all of your unpaid wages at the time of quitting. Labor Code Section 202 Since tender of payment of the final wages stops the penalty from accruing (in this case “tender of payment” is your former employer’s informing you on the Monday following your quit that your check was available, and your telling him that you would pickup it up), you are entitled to only three days’ wages worth of penalty.

You are not entitled to 13 days’ wages worth of penalty because you purposely avoided picking up your check for ten days after you were informed it was available. Labor Code Section 203 provides that “An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her…is not entitled to any benefit…for the time during which he or she so avoids payment…”

2. Q. On Monday of last week I informed my employer in writing that Friday of that week would be my last day of work as I was quitting. On Friday as I was leaving work I asked my employer for my check. He told me he didn’t have my check and that I would have to wait until the end of the payroll period when the payroll service prepared the semimonthly payroll checks. I asked if he would call me so I could come pickup my check, and he told me “no,” he’d just mail it when he got it. Fifteen days after the day I quit I received my check in the mail. The envelope was postmarked three days prior to that date. Am I entitled to the waiting time penalty, and if so, in what amount?

A. Yes, you are entitled to a waiting time penalty in the amount of 15 days’ wages. Under Labor Code Section 202, when an employee not having a written contact for a definite period quits his or her employment and gives 72 hours prior notice of his or her intention to quit, and quits on the day given in the notice, the employee is entitled to his or her wages at the time of quitting. Since you gave at least 72 hours prior notice of your intention to quit, quit on the day given in the notice, and did not receive your wages until 15 days later, you are entitled to a waiting time penalty in the amount of 15 days wages; the number of days between the date you were required to be paid and the date you were paid. Under these circumstances, the day you received the wages, and not the day they were mailed, is the date of payment and the day when the penalty stops accruing.

3. Q. If I quit my job without giving 72 hours prior notice and am not paid all of the wages due me within 72 hours after the time I quit, must I return to my former employer’s place of business 72 hours after quitting and demand my wages in order for the waiting time penalty to apply?

A. Waiting time penalties may apply to an employee who quits without 72 hours prior notice and who does not return to the workplace to demand wages. There are instances if the employer prevents you from returning for your wages, or the employer informs you that the wages will not be available even if you do return, whereby waiting time penalties may apply. Such situations are handled on a case-by-case basis. Furthermore, if you quit without giving at least 72 hours prior notice, you are entitled to receive payment of wages by mail if you request this and designate a mailing address. Labor Code Section 202. If you do so, and wages are not paid, waiting time penalties may apply. In general, employers should make diligent, good faith efforts to ensure that employees are paid, including payment of final wages.

4. Q. I was discharged from my employment two weeks ago. At that time I was paid all of my wages, but did not get reimbursed for any of my business related expenses until 10 days later. Am I entitled to the waiting time penalty, and if so, in what amount?

A. No, you are not entitled to the waiting time penalty. The waiting time penalty is assessed only when an employer willfully fails to pay an employee in accordance with Labor Code Sections 201, 201.5, 202, or 202.5, any wages of an employee who quits or is discharged. As you were paid all of your wages in accordance with the law and the reimbursement for business expenses is not wages, the waiting time penalty does not apply to your situation.

5. Q. I was discharged from my job two weeks ago. At that time I was paid the wages for all of the hours that I had worked, but was not paid for my 15 days of earned, accrued and unused vacation until 10 days later. Am I entitled to the waiting time penalty, and if so, in what amount?

A. Yes, you are entitled to the waiting time penalty in the amount of 10 days’ wages. The waiting time penalty is assessed only when an employer willfully fails to pay in accordance with Labor Code Sections 201, 201.5, 202, or 202.5, any wages of an employee who quits or is discharged. Under California law, earned vacation time is considered wages; and under Labor Code Section 227.3, unless otherwise provided by a collective bargaining agreement [An agreement negotiated between a labor union and an employer that sets forth the terms of employment for the employees who are subject to the agreement. This type of agreement may include provisions regarding wages, vacation time, working hours, working conditions, and health insurance benefits], whenever an employment relationship ends for any reason whatsoever and the employee has not used all of his or her earned and accrued vacation, the employer must pay the employee at his or her final rate of pay for all such earned, accrued and unused vacation. In your situation, since your former employer was obligated to pay you all of your wages at the time you were discharged, including your 15 days of vacation wages, and did not do so, you are entitled to the waiting time penalty in the amount of 10 days wages, the number of days between the date you were discharged and the date you received all of your final wages, i.e., the 15 days vacation pay.

6. Q. How is the daily rate of pay calculated and the waiting time penalty computed?

A. The following are examples of calculations of the daily rate of pay and computations of the waiting time penalty. In each instance, these examples assume all of the conditions for imposition of the penalty exist and that there is no good faith dispute that any wages are due.
A security guard is discharged on Friday, July 12, 2002, and not paid all of her earned wages due until Monday, July 22, 2002, ten days later. She regularly worked 35 hours per week, Monday through Friday, and was making $8.00 per hour at the time of her termination.
Daily Rate of Pay Calculation

35 hours/week ÷ 5 days/week = 7 hours/day

7 hours/day x $8.00/hour = $56.00/day (daily rate of pay)

Waiting Time Penalty Calculation

10 days, the number of days between the date the employer was obligated to pay the employee, July 12, 2002, and July 22, 2002, the date she is paid all of her wages. (See Labor Code Section 201, discharge of employee; immediate payment)

10 days x $56.00/day = $560.00 waiting time penalty.

A salesclerk is discharged on Friday, May 3, 2002, and not paid all of his earned wages due until Friday, June 14, 2002, 42 days later. He regularly worked 40 hours per week, Tuesday through Saturday, but during the last week of his employment he worked four hours of overtime. At the time of his termination, the employee was earning $10.00 per hour.
Daily Rate of Pay Calculation

40 hours/week ÷ 5 days/week = 8 hours/day

8 hours/day x $10.00/hour = $80.00/day (daily rate of pay)

This example shows that occasional or infrequent overtime is not included in calculating the daily rate of pay for purposes of determining the amount of the waiting time penalty.

Waiting Time Penalty Calculation

30 days. Although the employee was not paid all of his wages due until June 14, 2002, 42 days after the date the employer was obligated to pay him, the maximum penalty allowed under the law, is 30 days’ wages. Labor Code Section 203

30 days x $80.00/day = $2,400.00 waiting time penalty.

This example shows that the maximum penalty allowed under the law is 30 days’ wages.

A fry cook voluntarily quit her job on Tuesday, July 2, 2002, without giving notice to her employer. She regularly worked 45 hours per week, Monday through Friday, and was making $10.00 per hour when she quit. She is paid all of her earned wages due on Friday, July 12, 2002, 10 days after she quit.

Daily Rate of Pay Calculation

45 hours/week ÷ 5 days/week = 9 hours/day

8 hours/day x $10.00 per hour = $80.00

1 hour/day overtime x $15.00/hour (1� x $10.00) = $15.00

$80.00 + $15.00 = $95.00 daily rate of pay

This example shows that regularly scheduled overtime is included in calculating the daily rate of pay for purposes of determining the amount of the waiting time penalty.

Waiting Time Penalty Calculation

7 days. The employee is entitled to only seven days’ wages as the penalty because the employer has 72 hour (3 days, which in this example would be until July 5) to pay terminal wages when an employee quits without giving at least 72 hours prior notice of his or her intention to quit. (See Labor Code Section 202, quitting employee; payment within 72 hours)

7 days x $95.00/day = $665.00 waiting time penalty.

This example shows that the employer has 72 hours to pay terminal wages when no notice or less than 72 hours prior notice of intention to quit is given.

A part-time file clerk voluntarily quit his job on Friday, March 15, 2002. On Friday, March 8, 2002, he gave his employer notice that he was quitting on the 15th of that month (more than 72 hours notice). He regularly worked two days per week, four hours per day. He was making $7.50 per hour when he quit. He is paid all of his earned wages due on Friday, April 5, 2002.

Daily Rate of Pay Calculation

4 hours/day x $7.50/hour = $30.00/day (daily rate of pay)

Waiting Time Penalty Calculation

21 days, the number of days from the date the employer was obligated to pay the employee, March 15, 2002, until April 5, 2002, the date he was paid all of his wages.

21 days x $30.00/day = $630.00 waiting time penalty.

This example shows that the waiting time penalty applies to employees regardless of whether they are part-time or full-time, and that when an employee gives at least 72 hours prior notice of intention to quit, and quits on the date given in the notice, the employer’s obligation to pay all of the wages due is the date that the employee quits.

A commission salesperson working for an appliance dealer is discharged on May 10, 2002. She is not paid her earned commission wages due until May 25, 2002, the regular payday. She regularly worked 40 hours per week, five days per week. For the last three full months of her employment, on average she earned $3,000.00 per month. As of the date of her discharge, May 10, 2002, all commissions since the end of the previous pay period had been earned and were calculable by the employer on that date. At the time of her discharge, the employee did not know the amount of commissions she had earned since her last pay period.

Daily Rate of Pay Calculation

$3,000.00/month x 12 months/year = $36,000.00/year

$36,000.00/year ÷ 52 weeks/year = $692.31/week

$692.31/week ÷ 5 days = $138.46/day (daily rate of pay)

Waiting Time Penalty Calculation

15 days, the number of days from the date the employer is obligated to pay the employee, May 10, 2002, until May 25, 2002, the date she is paid all of her wages.

15 days x $138.46/day = $2,076.90 waiting time penalty.

A salesperson is paid a fixed salary of $2,500.00 per month and a commission of 10% of sales she makes each month. She quits her job on March 15, 2002 after providing more than 72 hours notice of her intention to quit. She quits on the day given in her notice. For the past three months she has averaged $1,500.00 in commission wages each month. She regularly worked 40 hours per week, five days per week. She is paid her salary wages on March 15, 2002, the day she quits; however, she is not paid her commission wages until April 1, 2002, the regular payday for commissions. All commission wages were earned prior to March 15, 2002, and were calculable by the employer on that date.

Daily Rate of Pay Calculation

$2,500.00 base salary/month + $1,500.00 average commissions/month = $4,000.00 average wages/month.

$4,000.00 average wages/month x 12 months/year = $48,000.00/year

$48,000.00/year ÷ 52 weeks/year = $923.08/week

$923.08/week ÷ 5 days/week = $184.62/day (daily rate of pay)

This example shows how the daily rate of pay is calculated when two different types of wages are earned.

Waiting Time Penalty Calculation

17 days, the number of days from the date the employer is obligated to pay the employee, March 15, 2002, until April 1, 2002, the date she is paid all of her wages.

17 days x $184.62/day = $3,138.54 waiting time penalty.

7. Q. Is overtime included in calculating the daily rate of pay for purposes of computing the waiting time penalty?

A. It depends. Regularly scheduled overtime is included in calculating the daily rate of pay for purposes of computing the waiting time penalty. On the other hand, occasional or infrequent overtime is not included in the calculation of the daily rate of pay for purposes of computing the waiting time penalty.

8. Q. I understand that if I am discharged from my job, or quit, and my employer willfully fails to pay me my final wages and there is not a good faith dispute that any wages are due, that I am entitled to a waiting time penalty of up to 30 days’ wages. If my employer pays me 15 days after my final wages are due, am I entitled to the full 30 days’ wages of penalty?

A. No, payment of wages or the commencement of an action stops the penalty from accruing. Filing in court commences an action. Filing a wage claim with the Labor Commissioner’s office (DLSE) is not considered an action and does not prevent the waiting time penalty from continuing to accrue.

9. Q. I was discharged last week and not paid all my wages. At the time I was discharged my former employer informed me that he could not pay me because he didn’t have the money. Will this be a valid defense to my claim for the waiting time penalty?

A. No, it will not be a valid defense. Inability to pay is not a defense to the failure to timely pay wages under Labor Code Sections 201, 201.5, 202, and 202.5, and does not relieve the employer from liability of the waiting time penalty under Labor Code Section 203.
Other reasons commonly given by employers for not making a timely payment under Labor Code Sections 201, 201.5, 202 and 202.5 that do not relieve the employer of liability from imposition of the waiting time penalty are:

Payroll checks are only paid on regular paydays, and that is when you will receive your wages.
Our payroll department is out-of-state and cannot get us a check in time.
You still owe us money for the goods you purchased, and we are not going to pay you your wages until you pay us.
10. Q. Does the waiting time penalty apply to part-time and temporary employees, or just to full-time employees.

A. The waiting time penalty applies to all employees regardless of status, exempt, nonexempt, full-time, part-time, temporary, probationary, or otherwise. The penalty does not apply to independent contractors or volunteers, as they are not “employees.”

11. Q. When computing the amount of penalty, do you count only the days I might have worked during the period for which the penalty accrues, or do you also include all non-workdays?

A. All non-workdays are included. When computing the penalty you count all of the calendar days for which the penalty accrues, including weekends, non-workdays (e.g., days off), and holidays.

12. Q. I am a salaried employee. For purposes of determining the waiting time, is one month’s salary the same as 30 days’ wages?

A. No, one month’s salary does not equate to 30-days wages. A salaried employee working five days per week will on average work 21.6 days per month (52 weeks/year ÷ 12 months/year x 5 days/week) in earning his or her full salary. However, since the waiting time penalty is calculated using a daily rate of pay, and can be up to 30 days’ wages, the maximum penalty will always exceed a person’s monthly salary. For example, assume that the maximum penalty of 30 days’ wages is appropriate for a salaried employee who was making $2,500.00 per month at the time the employment relationship ended. In such a situation, the penalty would be $3,461.54, computed as follows:
$2,500.00/month x 12 months/year = $30,000.00/year

$30,000.00/year ÷ 52 weeks/year = $576.92/week

$576.92 ÷ 5 days/week = $115.38/day (daily rate of pay)

$115.38/day x 30 days = $3,461.54 (waiting time penalty)

13. Q. My employer failed to pay me my final wages within the time period prescribed by law and I believe I am entitled to the waiting time penalty. What can I do?

A. You can either file a wage claim with the Division of Labor Standards Enforcement (the Labor Commissioner’s Office), or bring an action in court against your former employer to recover the wages if they are still due you, and to claim the waiting time penalty.

14. Q. What is the procedure that is followed after I file a wage claim?

A. After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.
If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.

At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.

Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.

See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim process procedure.

15. Q. What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?

A. When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.

Vacation Cash Out

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

California Law Vacation Cash Out

There is no legal requirement in California that an employer provide its employees with either paid or unpaid vacation time. However, if an employer does have an established policy, practice, or agreement to provide paid vacation, then certain restrictions are placed on the employer as to how it fulfills its obligation to provide vacation pay. Under California law, earned vacation time is considered wages, and vacation time is earned, or vests, as labor is performed. For example, if an employee is entitled to two weeks (10 work days) of vacation per year, after six months of work he or she will have earned five days of vacation. Vacation pay accrues (adds up) as it is earned, and cannot be forfeited, even upon termination of employment, regardless of the reason for the termination. (Suastez v. Plastic Dress Up (1982) 31 C3d 774) An employer can place a reasonable cap on vacation benefits that prevents an employee from earning vacation over a certain amount of hours. (Boothby v. Atlas Mechanical (1992) 6 Cal.App.4th 1595) And, unless otherwise stipulated by a collective bargaining agreement [an agreement negotiated between a labor union and an employer that sets forth the terms of employment for the employees who are subject to the agreement. This type of agreement may include provisions regarding wages, vacation time, working hours, working conditions, and health insurance benefits], upon termination of employment all earned and unused vacation must be paid to the employee at his or her final rate of pay. Labor Code Section 227.3 The California Legislature, in order to ensure that vacation plans were fairly and equitably handled, provided that the Labor Commissioner was to “apply the principles of equity and fairness” in resolving vacation claims.

Note: In the case of Suastez v. Plastic Dress-Up Co., 31 Cal.3d 774, 782 (1982), the employer’s policy declared that one week of PTO/vacation would accrue after one year of employment. The California Supreme Court held that the PTO/vacation time was not earned at the end of the year, but instead earned on a pro-rata basis as the employee worked (typically during each pay period).

The employer’s vacation plan states that no vacation is earned during the first six months of employment

This is legal. DLSE’s enforcement policy does not preclude an employer from providing a specific period of time at the beginning of the employment relationship during which an employee does not earn any vacation benefits. This could apply to a probationary or introductory period, and can even apply to the whole first year of employment.

Such a provision in a vacation plan will only be recognized, however, if it is not a subterfuge (phony reason) and in fact, no vacation is implicitly earned or accrued during that first year or other period. For example, a plan with the following provisions would be an obvious subterfuge and not recognized as valid:

Year 1: No vacation

Year 2: 4 weeks vacation

Year 3: 2 weeks vacation

The four weeks’ vacation earned in the second year, when viewed in the context of the two weeks’ vacation earned in the third year, makes it clear that two of the four weeks earned in year two are actually vacation earned in year one.

A valid vacation plan could look like the following:

Year 1: No vacation

Year 2: 2 weeks vacation

Year 3: 3 weeks vacation

Years 4 through 10: 4 weeks vacation

In those instances where a “waiting period” (Year 1 in the examples above) is found to be a subterfuge, employees who separate from their employment during the “waiting period” will be entitled to prorated vacation pay at their final rate of pay. On the other hand, where the employer’s vacation plan has a valid “waiting period” provision, employees who separate from their employment during that period will be ineligible for any vacation pay.

Earned Vacation

In California, because paid vacation is a form of wages, it is earned as labor is performed. An employer’s vacation plan may provide for the earning of vacation benefits on a day-by-day, by the week, by the pay period, or some other period basis. For example, an employer’s policy may provide that an employee will earn a proportionate share of his or her annual vacation entitlement for each week of a calendar year in which the employee either works at least one full day or receives at least one full days’ pay during such week. Thus, for example, if an employee is entitled to two weeks (10 work days) annual vacation, and works full-time, eight hours per day, 40 hours per week, in the above example for each week the employee works at least one full day, he or she will earn 1.538 hours of paid vacation, calculated as follows:

10 work days entitlement per year x 8 hours/day = 80 hours vacation entitlement per year

80 hours vacation entitlement per year ÷ 52 weeks per year = 1.538 hours of vacation earned per week

In contrast to how vacation pay may be earned, the calculation of vacation pay for terminating employees (a quit, discharge, death, end of contract, etc.) who have earned and accrued and unused vacation on the books at the time of termination must be prorated on a daily basis and must be paid at the final rate of pay in effect as of the date of the separation. For example, an employee who is entitled to three weeks of annual vacation (15 work days entitlement per year x 8 hours/day = 120 hours vacation entitlement per year) who quits on August 7, 2002 (the 219th day of the year) without having taken any vacation in 2002, who has no vacation carry-over from prior years, and whose final rate of pay is $13.00 per hour, would be entitled to $936.00 vacation pay upon separation, calculated as follows:

Pro rata daily basis:

219 days (August 7, 2002, date of quit) ÷ 365 days/year = 60%

60% of 120 hours vacation entitlement = 72 hours vacation earned and accrued through August 7, 2002

Vacation days used in 2002 = 0

Vacation earned but not taken at time of separation = 72 hours

72 hours x $13.00/hour = $936.00 vacation pay due at separation.

Part-time employee excluded from the employer’s vacation plan (only full-time employees get vacation)

It is legal. If an employer’s vacation plan/policy excludes certain classes of employees, such as part-time, temporary, casual, probationary, etc., such a provision is valid, and the agreement will govern. To avoid any misunderstandings in this area, the vacation plan/policy should state clearly and specifically which employee classification(s) are excluded.

4.

Q.

My employer’s vacation policy provides that if I do not use all of my annual vacation entitlement by the end of the year, that I lose the unused balance. Is this legal?

A.

No, such a provision is not legal. In California, vacation pay is another form of wages which vests as it is earned (in this context, “vests” means you are invested or endowed with rights in the wages). Accordingly, a policy that provides for the forfeiture of vacation pay that is not used by a specified date (“use it or lose it”) is an illegal policy under California law and will not be recognized by the Labor Commissioner.

5.

Q.

My employer’s vacation policy provides that once an employee earns 200 hours of vacation, no more vacation may be earned (accrued) until the vacation balance falls below that level. Is this legal?

A.

Yes, such a provision would be acceptable to the Labor Commissioner. Unlike “use it or lose it” policies, a vacation policy that places a “cap” or “ceiling” on vacation pay accruals is permissible. Whereas a “use it or lose it” policy results in a forfeiture of accrued vacation pay, a “cap” simply places a limit on the amount of vacation that can accrue; that is, once a certain level or amount of accrued vacation is earned but not taken, no further vacation or vacation pay accrues until the balance falls below the cap. The time periods involved for taking vacation must, of course, be reasonable. If implementation of a “cap” is a subterfuge to deny employees vacation or vacation benefits, the policy will not be recognized by the Labor Commissioner.

DLSE has repeatedly found vacation policies which provide that all vacation must be taken in the year it is earned (or in a very limited period following the accrual period) are unfair and will not be enforced by the Division.

6.

Q.

Can my employer tell me when to take my vacation?

A.

Yes, your employer has the right to manage its vacation pay responsibilities, and one of the ways it can do this is by controlling when vacation can be taken and the amount of vacation that may be taken at any particular time.

7.

Q.

My employer’s vacation policy provides that if I don’t use all of my vacation by the end of the year, he will pay me for the vacation that I earned and accrued that year, but did not take. Is this legal?

A.

Yes, your employer has the right to manage its vacation pay responsibilities, and one of the ways it can do this is by paying you off each year for vacation that you earned and accrued that year, but did not take.

8.

Q.

My employer has combined its vacation and sick leave plans into one program that it calls “paid time off” (PTO). Under this program I have a certain number of paid days each year that I can take off from work for any purpose. Does this allow my employer to circumvent the law as it relates to vacations?

A.

No, a “paid time off” (PTO) plan or policy does not allow your employer to circumvent the law with respect to vacations. Where an employer replaces its separate arrangements for vacation and sick leave with a program whereby employees are granted a certain number of “paid days off” each year that can be used for any purpose, including vacation and sick leave, the employees have an absolute right to take these days off. Consequently, again applying the principles of equity and fairness, DLSE takes the position that such a program is subject to the same rules as other vacation policies. Thus, for example, the “paid time off” is earned on a day-by-day basis, vested paid time off days cannot be forfeited, the number of earned and accrued paid time off days can be capped, and if an employee has earned and accrued paid time off days that have not been used at the time the employment relationship ends, the employee must be paid for these days.

9.

Q.

My employer allows its employees to take their vacation before it is actually earned or accrued. Last month I took my three weeks vacation before I had actually earned all of it. I quit my job this month and my employer deducted all of the unearned vacation days that I had taken from my final paycheck. Can he do this?

A.

No, your employer cannot deduct “advanced” vacation (i.e., vacation that is taken before it is earned or accrued) from your final paycheck. Because of work schedules and the wishes of employees, many employers allow employees to take their vacation before it is actually earned. Under California law, vacation benefits are a form of wages, and an employer’s practice of allowing employees to take their vacation before it is actually earned or accrued is in effect an advance on wages. Thus, if an employee takes an advance on vacation and then quits or is discharged before all of that advanced vacation is earned or accrued, the effect is that there has been an overpayment of wages which is a debt owed to the employer.

The California courts have noted on a number of occasions that an advance on wages, as with any other debt owed (either to the employer or a third party), is subject to the provisions of the attachment law. However, since wages are exempt from prejudgment attachment, neither the employer nor any third party can recover the debt by way of attachment of the employee’s final pay, as to do so would violate the public policy considerations underlying the wage exemption statutes. Thus, in California since the wage garnishment law provides the exclusive judicial procedure by which a judgment creditor can execute against the wages of a judgment debtor, an employer may not resort to self-help to recover debts owed to the employer by an employee from the wages then due to the employee.

10.

Q.

What happens to my earned and accrued but unused vacation if I am discharged or quit my job?

A.

Under California law, unless otherwise stipulated by a collective bargaining agreement, whenever the employment relationship ends, for any reason whatsoever, and the employee has not used all of his or her earned and accrued vacation, the employer must pay the employee at his or her final rate of pay for all of his or her earned and accrued and unused vacation days. Labor Code Section 227.3. Because paid vacation benefits are considered wages, such pay must be included in the employee’s final paycheck.

11.

Q.

My employer does not allow employees to carry-over any unused vacation days from year-to-year. When I was discharged last week none of these forfeited vacation days were included in my final paycheck? What can I do?

A.

You can either file a wage claim with the Division of Labor Standards Enforcement (the Commissioner’s Office), or you can file a lawsuit in court against your employer to recover the lost wages. Additionally, if you no longer work for this employer, you can make a claim for the waiting time penalty pursuant to Labor Code Section 203 [(a) If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 201.9, 202, and 205.5, any wages of an employee who is discharged or who quits, the wages of the employee shall continue as a penalty from the due date thereof at the same rate until paid or until an action therefor is commenced; but the wages shall not continue for more than 30 days. An employee who secretes or absents himself or herself to avoid payment to him or her, or who refuses to receive the payment when fully tendered to him or her, including any penalty then accrued under this section, is not entitled to any benefit under this section for the time during which he or she so avoids payment. (b) Suit may be filed for these penalties at any time before the expiration of the statute of limitations on an action for the wages from which the penalties arise].

Note: An employee or former employee may file an INDIVIDUAL wage claim to recover:

Unpaid wages, including overtime, commissions and bonuses.
Wages paid by check issued with insufficient funds.
Final paycheck not received.
Unused vacation hours that were not paid upon termination of the employment relationship, e.g., a quit, discharge, or layoff.
Unauthorized deductions from paychecks.
Unpaid/non-reimbursed business expenses.
Reporting time pay/split shift premiums.
Failure to provide a meal and/or rest period in accordance with the applicable Industrial Welfare Commission Order.
Liquidated damages for failure to receive minimum wage for each hour worked.
Waiting time penalties for failure to receive final wages timely upon separation of employment.
Penalties for paycheck(s) that have bounced or are not negotiable within 30 days of receipt. Penalties for employer’s failure to allow inspection or copying of payroll records within 21 days of request.
Sick Leave Pay for time accrued and used for which you were not paid (effective July 1, 2015).

12.

Q.

What is the procedure that is followed after I file a wage claim?

A.

After your claim is completed and filed with a local office of the Division of Labor Standards Enforcement (DLSE), it will be assigned to a Deputy Labor Commissioner who will determine, based upon the circumstances of the claim and information presented, how best to proceed. Initial action taken regarding the claim can be referral to a conference or hearing, or dismissal of the claim.

If the decision is to hold a conference, the parties will be notified by mail of the date, time and place of the conference. The purpose of the conference is to determine the validity of the claim, and to see if the claim can be resolved without a hearing. If the claim is not resolved at the conference, the next step usually is to refer the matter to a hearing or dismiss it for lack of evidence.

At the hearing the parties and witnesses testify under oath, and the proceeding is recorded. After the hearing, an Order, Decision, or Award (ODA) of the Labor Commissioner will be served on the parties.

Either party may appeal the ODA to a civil court of competent jurisdiction. The court will set the matter for trial, with each party having the opportunity to present evidence and witnesses. The evidence and testimony presented at the Labor Commissioner’s hearing will not be the basis for the court’s decision. In the case of an appeal by the employer, DLSE may represent an employee who is financially unable to afford counsel in the court proceeding.

See the Policies and Procedures of Wage Claim Processing pamphlet for more detail on the wage claim procedure.

13.

Q.

What can I do if I prevail at the hearing and the employer doesn’t pay or appeal the Order, Decision, or Award?

A.

When the Order, Decision, or Award (ODA) is in the employee’s favor and there is no appeal, and the employer does not pay the ODA, the Division of Labor Standards Enforcement (DLSE) will have the court enter the ODA as a judgment against the employer. This judgment has the same force and effect as any other money judgment entered by the court. Consequently, you may either try to collect the judgment yourself or you can assign it to DLSE.

14.

Q.

What can I do if my employer retaliates against me because I informed him that in California vacation is wages and cannot be forfeited?

A.

If your employer discriminates or retaliates against you in any manner whatsoever, for example, he discharges you because you objected to the fact that your vested vacation was being forfeited and not carried over from year-to-year, or because you file a claim or threaten to file a claim with the Labor Commissioner, you can file a discrimination/retaliation complaint with the Labor Commissioner’s Office. Any employee or applicant for employment who believes he or she was discharged or denied employment or otherwise retaliated against in violation of any law under the jurisdiction of the labor commissioner may file a complaint with the labor commissioner

In the alternative, you can file a lawsuit in court against your employer.

Courts

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Courts in California

Over the period 2008-2013, the financial crisis affecting California’s courts has caused:

  • 46 courthouses to close
  • 164 courtrooms to close
  • 1,885 court employees to lose their jobs
  • $1.2 billion to be cut from the state courts’ budget

Source: Assembly Judiciary Committee, February 2013

Federal Courts

Federal Courts in California include the following:

  • California Bankruptcy Court. The main office is in the capital of California (differerent from the divisional offices, located in the main city or cities of each U.S. State)
  • California District Court. The main office is in the capital of California (differerent from the divisional offices, located in the main city or cities of each U.S. State)
  • Probation Office. The main office is in the capital of California (differerent from the divisional offices, located in the main city or cities of each U.S. State)

California Courts

This section covers California-specific basic information on courts and related topics. Many of California's laws on courts are similar to those of other U.S. states, with some differences (in some cases, minor differences). California courts laws on courts are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on courts, which is a basic matter in California law.

California Courts

This section covers California-specific basic information on courts and related topics. Many of California's laws on courts are similar to those of other U.S. states, with some differences (in some cases, minor differences). California courts laws on courts are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on courts, which is a basic matter in California law.

Courts and Judges in California: General Overview

This entry offers readers with practical insight to the subject of courts and judges in California, a general introduction to the legal issues relating to courts and judges under California law and practice.

Resources

See Also

Resources

See Also

Resources

See Also

Medical Malpractice

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Medical Malpractice in California

Ballot Measure: Proposition 46

by Ben Adlin

A 39-year-old limit on medical malpractice damages doesn’t translate easily to a 30-second campaign spot. But a confluence of frustration, tragedy, and political bargaining has California consumer attorneys hopeful that Proposition 46 on November’s ballot is their best attempt yet to lift a cap on noneconomic damages that they say unfairly stymies victims.

The measure – which spawned one of the nation’s priciest electoral contests this year, with more than $67.5 million donated in support and opposition by September – is a mishmash. It would quadruple the damages cap to $1.1 million and add an inflation adjuster; it would require doctors to check patients’ narcotics prescription histories; and it would mandate drug testing of doctors. Advocates say the three prongs are equally important, but some have acknowledged they hope the last element would finally turn a long-running battle over damages in their favor.

The fight began in 1975, when Gov. Jerry Brown signed the Medical Injury Compensation Reform Act, or MICRA, capping noneconomic malpractice damages at $250,000 after a spike in insurance rates led some doctors to suspend services to all but emergency patients. (See Cal. Civ. Code § 3333.2(b).) Providers blamed plaintiffs lawyers for the rate increases. Tort lawyers blamed the hikes on insurers’ efforts to recoup unrelated investment losses. They challenged MICRA from the start as unconstitutional, lobbied legislators, and supported reform-minded candidates.
Similar arguments from both sides show up in this year’s campaign literature. But University of Pennsylvania law professor Tom Baker says neither explanation is right: The spike was a market correction after insurers competed too vigorously and found themselves short on cash to pay claims.

October 2003 was a turning point for lawyers fighting the cap. Just as they were closing in on success in the Legislature, they lost a key ally when Gov. Gray Davis was recalled. But they gained important champions after two young children were killed in Danville by a driver high on prescription drugs. When the grieving parents, Bob and Carmen Pack, consulted lawyers about suing Kaiser Permanente for negligence, the first nine refused their case, citing the cap on noneconomic damages. In addition, economic damages for victims with low incomes – or none, like children – may be reduced to zero. “Damages caps are a blunt instrument,” says Stanford University law professor Nora Engstrom. “They’re bad at what they purport to do, and they have terrible side effects.”

Bob Pack became a prominent spokesman for raising the cap. The former America Online executive, who co-founded Internet provider NetZero, also created the online version of a database where California doctors can check patients’ prescription records. And he got the Consumer Attorneys of California and the nonpartisan Consumer Watchdog to back requiring clinicians to use it.

The drug testing prong of Prop. 46 was added in part because it played well with likely voters and in part because supporters realized it could be awkward for the medical industry to oppose. “Most people don’t know that doctors aren’t drug tested and are appalled,” says Jamie Court, Consumer Watchdog’s president. Still, providers argued that raising the cap would be too costly.

And opponents of the measure, who have raised more than seven times as much money as supporters, are running ads that lean heavily on antipathy toward lawyers. They were particularly angry about the summary that Attorney General Kamala Harris’s office wrote for signature-gathering petitions because it gave top billing to the measure’s drug testing provision. “Harris intentionally deceived ballot signers by highlighting one of the fig leaves that trial lawyers attached to the measure to hide their real intent,” a San Diego newspaper editorial declaimed. A Field Poll in early September found the tide turning against the measure, with just 34 percent of likely voters in favor.

Medical Malpractice

Welcome to the California legal encyclopedia's introductory part covering the medical malpractice laws of California, with explanations of the various implications of medical malpractice in California and the statutes enforced in California in connexion with medical malpractice. This introductory section covers case law related to medical malpractice in California, the legal approach on medical malpractice in the United States and related topics. The information below provides an California-specific general overview of the legal regime of medical malpractice in California.

Medical Malpractice in relation to Health Care Law

This section analizes the legal issue of medical malpractice in this context.

Resources

See Also

Settlement

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Settlement in California

Good Faith Settlements

All litigators need to know the statutory rules governing good faith settlements.

By Gilda R. Turitz. She is a partner and litigation practice group leader at Sideman & Bancroft in San Francisco.

When one defendant in a multiparty case settles for a low amount, an issue often arises as to whether the settlement has been entered in “good faith.” The issue is important because a key California statute enables a party who settles in good faith to leave the litigation and exempts them from certain cross-claims asserted by the other defendants.

Statutory Procedure

Settlements are supposed to bring warring litigants peace and finality, but that goal may be jeopardized when non-settling defendants challenge a pre-verdict or pre-judgment settlement between the plaintiff and some – but not all – joint tortfeasor or co-obligor defendants. The challenge usually comes in the form of an objection that the settlement lacks the requisite good faith to qualify for the protective statutory cloak that would shield the settling party from the cross-claims asserted by other defendants for equitable comparative contribution or indemnity based on comparative negligence or comparative fault. Moreover, a good faith settlement will reduce the plaintiff’s claims against the non-settlors by the amount stipulated in the release, dismissal, or covenant not to sue or enforce judgment, or by the amount of consideration paid to the plaintiff, whichever is greater. (See Cal. Civ. Proc. Code §§ 877 and 877.6.)

Any party can apply to the superior court for a good faith determination under alternative procedures of section 877.6(a) by a formal motion or a simple notice served by certified mail. A party asserting the lack of good faith (which is a question of fact) bears the burden of proof. (§ 877.6(d).) The battle regarding a disputed good faith claim usually focuses on the factors explained in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (38 Cal. 3d 488 (1985)) and its progeny. The issue is whether the settlement is so far “out of the ballpark” that it is inconsistent with the statute’s dual goals of encouraging settlements and equitably allocating costs among multiple tortfeasors.

Proportionate Liability

The predominant factor under Tech-Bilt is that the settlement amount cannot be “grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.” (38 Cal. 3d at 499.) Although a monetary sum is easily quantified, total settlement value must factor in any nonmonetary considerations. Admissible evidence is required to prove value and the settlor’s proportionate liability, and expert affidavits in support may be necessary on both issues.

Financial Reality

Courts recognize that a settlor may pay less in settlement than it would be found liable for at trial, especially if its financial resources are limited. The good faith determination requires adequate and admissible evidence of the settling defendant’s net worth and any insurance or claimed noncoverage. An objecting party may properly seek a continuance of the good faith hearing to marshal evidence, including taking discovery, to support its burden of proof on the financial issues. If discovery is sought, the settlor may seek a protective order to limit financial disclosures.

Although courts are quite flexible in applying the good faith analysis, a settlement will not qualify as valid under section 877.6 if the evidence demonstrates that the settling parties engaged in conduct aimed at injuring the non-settlors’ interests. A collusion finding may be supported by a disproportionately low settlement figure entered into solely to immunize the settlors from a cross-complaint. (See Mattco Forge, Inc. v. Arthur Young & Co., 38 Cal. App. 4th 1337 (1995).) However, if the settlement resulted from a mediation or judicially hosted settlement conference, there is a much better chance that it will meet the good faith standard.

Make It Conditional

If settling parties anticipate a challenge, they should consider conditioning the settlement upon the court’s approval. Otherwise, if the court finds lack of good faith, the settling defendants will still be bound to pay, and they will face continuing potential exposure to indemnify non-settlors.

Dismissing Cross-Complaints

A good faith settlement order does not by itself dismiss indemnity and contribution cross-complaints. The settling defendant must move for that relief, and the motion can be made concurrently with or immediately following the good faith hearing.

Appellate Relief

Any aggrieved party may file a petition for writ of mandate within 20 days after written notice of the good faith ruling. (Cal. Civ. Proc. Code § 877.6(e).) Because there is no right to appeal from a good faith settlement order, to contest the trial court’s ruling, a party should promptly file a writ. Waiting to pursue appellate relief until after a judgment is entered will usually be too late.

The rules governing settlement are designed to be efficient and user-friendly. And any lawyer in a multiparty case is well advised to not only be aware of them, but also to understand both their potency and their limitations.

California Settlement

This section covers California-specific basic information on settlement and related topics. Many of California's laws on settlement are similar to those of other U.S. states, with some differences (in some cases, minor differences). California settlement laws on settlement are created and revised by the actions of lawmakers and the courts. Use the cross-references and topics below to learn more about California statutes and laws on settlement, which is a basic matter in California law.

Settlement Contracts

Welcome to the California legal encyclopedia's introductory part covering the settlement contracts laws of California, with explanations of the various implications of settlement contracts in California and the statutes enforced in California in connexion with settlement contracts. This introductory section covers case law related to settlement contracts in California, the legal approach on settlement contracts in the United States and related topics. The information below provides an California-specific general overview of the legal regime of settlement contracts in California.

Settlement Contracts in relation to Commercial Law

This section analizes the legal issue of settlement contracts in this context, and provides information on its relation with Contracts.

Settlement of Small Estates

Welcome to the California legal encyclopedia's introductory part covering the settlement of small estates laws of California, with explanations of the various implications of settlement of small estates in California and the statutes enforced in California in connexion with settlement of small estates. This introductory section covers case law related to settlement of small estates in California, the legal approach on settlement of small estates in the United States and related topics. The information below provides an California-specific general overview of the legal regime of settlement of small estates in California.

Settlement of Small Estates in relation to Probate, Estates and Trusts

This section analizes the legal issue of settlement of small estates in this context, and provides information on its relation with Administration of Estates.

Settlements; Agreements on Compensation

Welcome to the California legal encyclopedia's introductory part covering the settlements; agreements on compensation laws of California, with explanations of the various implications of settlements; agreements on compensation in California and the statutes enforced in California in connexion with settlements; agreements on compensation. This introductory section covers case law related to settlements; agreements on compensation in California, the legal approach on settlements; agreements on compensation in the United States and related topics. The information below provides an California-specific general overview of the legal regime of settlements; agreements on compensation in California.

Settlements; Agreements on Compensation in relation to Workers' Compensation

This section analizes the legal issue of settlements; agreements on compensation in this context.

Resources

See Also

Resources

See Also

Resources

See Also

Resources

See Also

Supreme Court

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

California Supreme Court

The California Supreme Court Activity in 2013-2014

From July 1, 2013, to June 30, 2014 – with Justice Joyce L. Kennard absent during the final three months – the California Supreme Court decided 89 cases, matching the previous year’s output with a balanced caseload of 32 civil cases, 26 death penalty cases, 28 non-death criminal cases, and three State Bar matters. All of the death penalty cases were affirmed, and all but two of those decisions were unanimous. Most of the non-death criminal rulings were also unanimous, with one 43 split and three solo dissents (two from Kennard and one from Justice Marvin R. Baxter).

In the civil cases, the Court split 43 three times, 52 five times, and 61 twice. Thus, the overall dissent rate for the year was a paltry 4.5 percent, falling between the record low of 2.3 percent set during the first year of the Cantil-Sakauye Court and 6.1 percent achieved in 2013.

The California Supreme Court Activity in 2012-2013

By Gerald F. Uelmen, a professor at Santa Clara University School of Law. Earl Horner (Class of 2014) compiled the data for this article.

In sharp contrast to the first year of Chief Justice Tani Cantil-Sakauye’s leadership of the California Supreme Court, her second year saw dissent and disagreement rates sharply increase, with some unusual combinations in both the majority and dissenting opinions. From July 1, 2012, to June 30, 2013, the court split 4-3 in seven cases, compared with only one in the previous twelve months. (See “Justices United,” September 2012.) There were also seven 5-2 opinions, compared with one the previous year. As a result, the overall dissent rate nearly tripled – from 2.3 percent to 6.1 percent.

Justices Joyce Kennard and Goodwin Liu tied for the highest dissent rate (15.5 percent), but they weren’t always dissenting in the same cases. And even when they were, they rarely joined each other’s opinions.

When the court split 4-3, I found the alignments to be especially intriguing, with a different lineup in each case. (See “Close Calls” below.) Five of the seven were criminal cases. The defense lost in four of those five. Although few consistent patterns emerged, I did note that Liu was with the defense in all five cases, joined by Justice Kathryn Werdegar in four. Justice Marvin Baxter, on the other hand, was with the prosecution in four of the five cases. In the one case in which he sided with the defense, Baxter wrote an unusual (for him) concurring opinion, offering a Scalia-like explanation that the result was compelled by the plain language of the statute, without looking beyond the text. (People v. Rodriguez, 55 Cal. 4th 1125, 1139-1141 (2012) (Baxter, J., concurring).)

Disagreement Rates

Rates of disagreement measure the proportion of cases in which the justices vote on opposite sides of cases that divide the court. The lowest rate of disagreement is that between Baxter and Justice Ming Chin, who were on the same side in 98 percent of the cases. The highest rates of disagreement were registered by Liu and Baxter, who were on opposite sides in 15 percent of the cases. (Kennard and Liu cast different votes 13.3 percent of the time.)
To me, the biggest surprise was Liu’s rate of agreement with Justice Carol Corrigan. They voted together in 94 percent of the cases – an “odd couple” – in which one of the more conservative justices (Corrigan) joined one of the more liberal (Liu). The explanation for this may be that they actually talk to each other outside the conferences!

In a pair of interesting cases, Liu joined Corrigan’s dissenting opinions: In re Boyette (56 Cal. 4th 866 (2013)), in which she argued that jurors watching a film about prison life during their deliberations was misconduct requiring reversal; and People v. Dungo (55 Cal. 4th 608 (2012)), one of the Confrontation Clause cases discussed on the opposite page. Liu also had a 94 percent rate of agreement with Werdegar.

Like her predecessor, Chief Justice Ronald George, Chief Cantil-Sakauye staked out a very centrist position, tilting slightly to the right. She parted company with Chin in 5 percent of the cases, and with Liu in 10 percent. Liu’s tilt to the left was very similar to that of his predecessor, Justice Carlos Moreno: Liu disagreed with both the chief and Chin in 10 percent of the cases.

When the cases are broken down into separate categories – civil cases, death penalty cases, and noncapital criminal cases – the dissent and disagreement rates look very different. Of the 96 cases decided this year, 32 were civil cases, 21 were death penalty cases, and 43 were noncapital criminal cases. The dissent rate for civil cases was 5.1 percent. Although three of the death cases were reversals, only two of the affirmances drew dissents, for an overall dissent rate of 2.8 percent. For non-death criminal cases, however, the dissent rate was 7.9 percent.

Confrontation Confusion

What happens when the U.S. Supreme Court fails to muster a majority to agree on the same rationale for its decision? Last term the high court did just that, fumbling the ball in its decision in Williams v. Illinois (132 S. Ct. 1221 (2012)). In upholding the admission of the results of a laboratory DNA analysis without cross-examination of the analyst who prepared it, four justices joined a plurality opinion that watered down the Confrontation Clause analysis of Crawford v. Washington (541 U.S. 36 (2004)), while four justices, including Crawford author Justice Antonin Scalia, insisted that Crawford required reversal. The concurring opinion of Justice Clarence Thomas, which relied upon a totally different rationale, arguing that Confrontation Clause protection applies only to statements “with the solemnity of an affidavit or deposition,” provided the fifth vote needed to decide the case. But the decision’s split rationales left the fate of Crawford’s approach to the Confrontation Clause in limbo.

In California, the state Supreme Court struggled with the impact of Williams upon the admissibility of various forensic reports in a trilogy of cases. Not surprisingly, the cases resulted in a bewildering array of opinions, as the justices attempted to pick through the high court’s tea leaves. All three of the cases produced majority opinions upholding the convictions, and all were authored by Justice Kennard.

In People v. Lopez (55 Cal. 4th 569 (2012) (blood-alcohol concentration test results)), the state Supreme Court concluded that a laboratory technician’s initials on a report “were not made with the requisite degree of formality or solemnity” to be considered testimonial. Justice Liu dissented.

The conclusion in People v. Dungo (55 Cal. 4th 608 (2012) (observations during autopsy)) was that a physician’s description in a report of what he observed during an autopsy was not testimonial, because a criminal investigation was not the primary purpose of the autopsy, but rather only one of several purposes. Justices Corrigan and Liu dissented.

In People v. Rutterschmidt (55 Cal. 4th 650 (2012) (toxicology analysis)), Justice Kennard threw up her hands and declared that even if an analyst’s report was testimonial, its admission was harmless error. Just like Williams, none of these cases will provide much guidance to trial courts in determining whether out-of-court statements were testimonial. But one can hardly blame the California Supreme Court: It was simply following the bad example of the highest court in the land.

The Best and the Worst

Although I didn’t like the result in the closely watched case of City of Riverside v. Inland Empire Patients Health and Wellness Center, Inc. (56 Cal. 4th 729 (2013)), I must compliment Justice Baxter on a masterful job of laying out the issues and resolving them concisely: State medical-marijuana laws do not preempt local regulation. Therefore, local governments remain free to prohibit the operation of marijuana dispensaries within their jurisdiction, even when such operations are in full compliance with state law. Unfortunately, this encourages a not-in-my-backyard mentality that will likely drive distribution underground, as well as require many patients to travel long distances to get safe access to medical marijuana. But as Justice Baxter notes, “[N]othing prevents future efforts by the Legislature, or by the People, to adopt a different approach.”

A different approach indeed was used in the recent initiative measures legalizing recreational use of marijuana in the states of Colorado and Washington. The Colorado measure requires a comprehensive system of statewide rules that will preempt local regulation of marijuana distribution. Similarly, the Washington measure creates a framework similar to the regulation of liquor, to be administered by the state Liquor Control Board. This issue will surely be confronted in California’s next marijuana-legalization initiative.

I thought the best opinion of the year was Justice Liu’s concurrence in People v. Barrett (54 Cal. 4th 1081, 1114–1151 (2012)). He concluded that a distinction between mentally ill persons and mentally retarded persons in the statutory right to advisement to be tried by a jury violates California’s own constitutional guarantee of equal protection. Thus the Mosk Doctrine – that state courts should look first to their independent state constitutions-lives on.

In my view, the worst opinion of the year was Justice Kennard’s majority opinion in In re Richards (55 Cal. 4th 948 (2012)). (See “Close Calls,” below.) By creating a shadowy distinction between the testimony of experts and the testimony of laypersons in applying the protections against false evidence in Penal Code section 1473(b), the decision creates a substantial obstacle to correcting what the California Commission on the Fair Administration of Justice identified as the second-most-common factor contributing to wrongful convictions: erroneous scientific evidence – in identifying “hair, bullets, handwriting, footprints, bite marks and even venerated fingerprints.”

The court’s opinion, by requiring that evidence that a forensic expert’s conclusions were mistaken must point “unerringly to innocence or reduced culpability,” would deny relief even if the defendant can show it is reasonably probable that the verdict would have been different absent the expert’s mistake.

A close runner-up for worst opinion of the year was Chief Cantil-Sakauye’s majority opinion in People v. Aranda (55 Cal. 4th 342 (2012)). In this case there was no question that the trial court erred in failing to instruct the jury on reasonable doubt. But Cantil-Sakauye confidently concluded that it was harmless error because “there was no reasonable probability that the outcome” would have been different had the instruction been given. Yet both Justices Kennard and Liu dissented because they were not convinced, beyond a reasonable doubt, that the jury in the case applied the correct standard of proof.

If two justices on the state Supreme Court have a reasonable doubt, how can a majority of that court confidently conclude that a reasonable juror would not? In general, I’m suspicious of “harmless error” findings that are not unanimous. As Justice Liu noted in his dissent, “Until today, no California case had ever held or even suggested that despite a trial court’s failure to instruct the jury with a standard reasonable doubt instruction … an appellate court can still be certain beyond a reasonable doubt that the jury understood its obligation.”

Original Actions in the Supreme Court

Welcome to the California legal encyclopedia's introductory part covering the original actions in the supreme court laws of California, with explanations of the various implications of original actions in the supreme court in California and the statutes enforced in California in connexion with original actions in the supreme court. This introductory section covers case law related to original actions in the supreme court in California, the legal approach on original actions in the supreme court in the United States and related topics. The information below provides an California-specific general overview of the legal regime of original actions in the supreme court in California.

Original Actions in the Supreme Court in relation to Criminal Law & Procedure

This section analizes the legal issue of original actions in the supreme court in this context, and provides information on its relation with Posttrial Matters; Appeals.

Resources

See Also

Legislation

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

California Legislation

California Legislation

Delegation of state legislative power to local governments in California: General Overview

This section examines the topic of delegation of state legislative power to local governments in relation to State power in California, and provides background cross-references and a roughly easy treatment of California subjects related to delegation of state legislative power to local governments, important to this area of law in California.

Electronic Transaction

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Electronic Transaction in California

The Uniform Electronic Transactions Act and the E-Commerce Law: e-signature

California enacted UETA and it took effect January 1, 2000. For more information on electronic transactions in the United States, see here.

Applicability

Civil Code Sec. 1633.3

Application of title provides:” (a) Except as otherwise provided in subdivisions (b) and (c), this title applies to electronic records and electronic signatures relating to a transaction.(b) This title does not apply to transactions subject to…” There is a long list of types of transactions that are NOT valid if electronic. These deal mainly with notices regarding real property, vehicles health and many other transactions that if left to e-mail could end up in fraud to the consumer.

Civil Code Sec. 1633.4

Next, this provision provides that the new law “applies to any electronic record or electronic signature created, generated, sent, communicated, received, or stored on or after January 1, 2000.” E-signatures alone (without paper backup) may not be valid if “signed” before this date.

Record or signature requirement; agreement to transact electronically: Section 1633.5. provides two requirements and a non-requirement. Part (a) states that the new law, “does not require a record or signature to be created, generated, sent, communicated, received, stored, or otherwise processed or used by electronic means or in electronic form.” This means that if the record is in paper form it is as valid an e-signature as if in electronic form.

Part (b) provides the CRUX of validity: if the parties to an e-transaction “each of which has agreed to conduct the transaction by electronic means,” then the Act applies to make it valid. “Whether the parties agree to conduct a transaction by electronic means is determined from the context and surrounding circumstances, including the parties’ conduct.” for example if a person is online and goes to an online business, click “I Accept” they are, from these circumstances, making an electronic agreement (contract).

Note that this part also provides that if there is an “an agreement to conduct a transaction by electronic means may not be contained in a standard form contract that is not an electronic record.” Though this language is a bit cryptic, it is believed to be intended to mean that if there is a standard from paper agreement, it may not validly contain an agreement to conduct business by e-means.

Therefore, if an e-transaction is to be valid and enforceable the agreement to do business by e-means must be shown by:

  • the surrounding circumstances of the transaction,
  • by a separate agreement whether on paper or in e-format (not in a standard contract however),
  • a form contract the sole purpose of which is to approve or agree that the agreement is to be conducted by electronic means.

Then what if the person does not want to make all transaction by e-means? Section 1633.5 (c) provides, “A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means. If a seller sells goods or services by both electronic and nonelectronic means and a buyer purchases the goods or services by conducting the transaction by electronic means, the buyer may refuse to conduct further transactions regarding the goods or services by electronic means.”

Others

Note that this part also states, “This subdivision may not be varied by agreement.” Of course, if the only format of business is e-business then the person would have to stop signing and would be unable to do further business with that company. You may not thus not tell the user that they need to agree to conduct all transactions by e-means.

If an agreement is “signed” by an e-signature it is valid IF certain requirements are met. First is that IF there needs to be an electronic record of the signature, this can be on disk, server or eventually printed on paper. The e-record is needed to prove that at the moment the accepting party clicked on “I Accept” he/she actually sent data to the offeror and the offeror, under the circumstances of the transaction, took the click as a signature. From then on the parties are bound by the acceptance of the agreement just as if it were on paper.

Requirement to provide, send, or deliver information in writing

Section 1633.8. electronic satisfaction: (a) If parties have agreed to conduct a transaction by electronic means and a law requires a person to provide, send, or deliver information in writing to another person, that requirement is satisfied if the information is provided, sent, or delivered, as the case may be, in an electronic record capable of retention by the recipient at the time of receipt. An electronic record is not capable of retention by the recipient if the sender or its information processing system inhibits the ability of the recipient to print or store the electronic record.

“Section 1633.7. Legal effect or enforceability of electronic record, signature, or contract: (a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form.(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation.(c) If a law requires a record to be in writing, an electronic record satisfies the law.(d) If a law requires a signature, an electronic signature satisfies the law.”

Alarm Companies: Electronic Transactions (AB 1097) in California

The Alarm Companies: Electronic Transactions (AB 1097) is an act to amend Section 7599.54 of, and to add Section 7599.56 to, the Business and Professions Code, and to amend, repeal, and add Section 1633.3 of the Civil Code, relating to alarm companies. Decided: California Assembly Act (2015-2016 Regular Session – AB 1097)

Counsel

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Counsel in California

Right to counsel in civil trials

by Mike Rosen (2012)

San Francisco experiments with the right to counsel in civil trials.

A city ordinance signed by Mayor Ed Lee in April 2012 has made San Francisco the first city in the nation to create a guaranteed right to civil counsel. Although the U.S. Supreme Court recognized a right to legal representation in criminal matters in the landmark case of Gideon v. Wainwright (372 U.S. 335 (1963)), no such corresponding right exists in the civil arena, despite what some see as a greater need for it.

“You cannot have a more compelling cause than child custody or shelter for family,” says Robert Rubin, former litigation director for the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area. Rubin brought the proposal to the San Francisco Board of Supervisors last fall, together with Shearman & Sterling partner James J. Donato and Morrison & Foerster partner James J. Brosnahan. Rubin argues that while rights threatened in civil court go unprotected by counsel, “You would get a lawyer if you were facing six months of probation for stealing a magazine.”

The ordinance, passed in March by the Board of Supervisors, authorizes a one-year Right to Civil Counsel pilot program but restricts the city’s financial commitment to paying one staff person to coordinate the city, clients, and pro bono lawyers. To be eligible for free counsel, a person would need to live within 200 percent of the federal poverty line and have a case touching on “a basic human need,” such as housing, safety, or child custody.

According to a 2010 report by the Judicial Council of California, 80 percent of litigants in California’s family law courts and more than 90 percent of those in tenancy disputes represent themselves. Some aid has come through California’s 2009 Sargent Shriver Civil Counsel Act, which created $9.5 million in grants to help low-income clients obtain representation in civil matters.

California’s pilot programs are the first instance of city or state governments taking steps to offer a right to civil counsel; in other states efforts are driven mostly by private bars, legal service organizations, and court-created justice commissions. For example, in 2009 the Philadelphia Bar started civil Gideon pilot projects in mortgage foreclosure and child custody cases. In 2007 the Boston Bar conducted a similar project with regard to eviction cases.

The San Francisco ordinance comes at a time when the court system is struggling to meet its responsibilities to the public. But Brosnahan says the ordinance could help lighten the load on courts by reducing delays caused by pro se litigants unfamiliar with court procedures. Judges would also intervene less often to explain procedures to unrepresented parties and thus avoid accusations that they are biased.

“This is a problem that gets worse and worse,” says Brosnahan. “On the fifth floor of the superior court in San Francisco, you see people in huge lines at the self-help window. It’s pathetic our society can’t do better.”
If successful, the program will become permanent, adds Brosnahan, who hopes to introduce similar proposals in other cities.

Lawrence J. Siskind, a partner at Harvey Siskind in San Francisco and a civil Gideon critic, expressed skepticism about taking on the added expense of a civil-right-to-counsel program when California’s court system is already facing a financing crisis. He says that private legal aid groups are better positioned to decide which cases are most worthy of counsel.

Still, supporters say that the ordinance could save the city money in the long run. “By not providing counsel, cities and states end up paying the costs down the road,” says John Pollock, coordinator for the National Coalition for a Civil Right to Counsel, “in extended foster care or more police enforcement or homeless shelters. The San Francisco ordinance is very innovative and noteworthy. It’s a milestone.”

Arguments and Conduct of Counsel, Judge and Others

Welcome to the California legal encyclopedia's introductory part covering the arguments and conduct of counsel, judge and others laws of California, with explanations of the various implications of arguments and conduct of counsel, judge and others in California and the statutes enforced in California in connexion with arguments and conduct of counsel, judge and others. This introductory section covers case law related to arguments and conduct of counsel, judge and others in California, the legal approach on arguments and conduct of counsel, judge and others in the United States and related topics. The information below provides an California-specific general overview of the legal regime of arguments and conduct of counsel, judge and others in California.

Arguments and Conduct of Counsel, Judge and Others in relation to Criminal Law & Procedure

This section analizes the legal issue of arguments and conduct of counsel, judge and others in this context, and provides information on its relation with Trial.

Resources

See Also

Uniform Laws

This is a Non Profit Project. We don't collect personal data and we don't use cookies.

Uniform Laws in California

Many Uniform Acts and Model Acts are being promulgated by the National Conference or by the Uniform Law Commissioners, a national group of law professors.

Uniform Laws

In the following list of uniform and model laws, appears a comment in which are summarized the deviations from the Uniform Act, if any, found (in 1951) in the California statute.

  • Act to Secure the Attendance of Witnesses from Without a State in Criminal
    Proceedings (1931 and 193 6). In 1937 California adopted the revised form of the act but the adoption was under
    the short title of the original act.
  • Bills of Lading Act (1909)
  • Criminal Extradition Act (1926 and 1936). California adopted the revised form in 1937. The California Act adds two
    sections on commitment procedure (Pen. Code Secs. 1551.2 and 1551.3). It omits
    Sec. 24 of the Uniform Act but adds provision for costs and expenses (Sec. 1557).
  • Divorce Recognition Act (1947).’ The
    California Act expressly applies only to divorces obtained after the effective date
    of the statute.
  • Evidence Act: Business Records as Evidence Act (1936).
  • Federal Tax Lien Registration Act (1926).”1 Provides for filing and indexing
    federal tax lien notices by a state. Comment: The California statute does not purport
    to adopt the Uniform Act, but its language is followed almost verbatim. The
    only addition is that “internal revenue taxes” are specified.
  • Flag Act (1917).Again, the Uniform label is not
    adopted but the substance of the Act is embodied in the California statute.
  • Foreign Depositions Act (1920).1′ Provides for compelling witnesses to attend
    in this State under foreign depositions with the same effect as if the proceeding were
    in local courts, and by the same means.
  • Fraudulent Conveyances Act (1918).
  • Interstate Arbitration of Death Taxes Act (1943).
  • Interstate Compromise of Death Taxes Act (1943).16 Provides for compromise
    between states where more than one claims death taxes as to a particular decedent.
  • Limited Partnership Act (1916).
  • Negotiable Instruments Act (1896).The California statute
    contains an additional clause based on California community property law. (Corp.
    Code Sec. 15025(2) (e)).
  • Principal and Income Act (1931). The California statute varies in many particulars from the
    Uniform Act. The major differences are that the trustee’s discretionary determination
    of funds as principal or income is made conclusive, as is his apportionment
    of receipts and expenses (Sec. 2, Uniform Act); stock dividends from earnings are income (Secs. 3 and 5); the life tenant’s right to income is cut off as of the moment
    his estate ceases except for funds actually in the trustee’s hands (Sec. 4); the
    trustee or tenant may rely on statements of paying corporations as to the character
    of disbursements (Sec. 5(6)); but the so-called “accretion” bond redeemable at
    a future time at a sum in excess of the original consideration for its issuance is
    excepted from the premium and discount bonds of Sec. 6, so that the accretion is
    considered income. Sec. 9 is entirely recast so that where no provision is made for
    the disposition of the proceeds of the development of natural resources, then the
    net proceeds go to income where alternatively, the trustee is authorized to lease or
    develop the natural resources or he has no duty to change the form of the investment,
    whether the proceeds are received as rent or as consideration for royalties,
    or otherwise. In addition, a subsection 11A is added, apparently giving the orthodox
    rule for the proceeds of a mortgage salvage operation. Subsection 4 of Sec. 12
    eliminates the reimbursement of principal for costs or improvements which add to
    the value of the property.’
  • Proof of Statutes Act (1920). The California statute, when read with Sec. 17(7) of the same code,
    clearly includes proof of law of a territory.
  • Reciprocal Transfer Tax Act (1928).The provisions as to
    inheritance taxes were adopted here in 1927 and those for gift taxes in 1939. In each
    case, the California statute provides for exemptions only when the state of residence
    of the decedent imposes an inheritance tax on intangible personalty within
    that state when personalty is transferred to a resident of that state.
  • Sales Act (1906).7, Provides in detail the rules governing contracts of sale,
    transfer of property, title, rights of buyer and seller, etc. Secs. 32 and 38 of the act
    were amended in 1922 to provide that negotiable documents of title be fully as
    negotiable as bills of exchange. Comment: The California enactment incorporated
    the amendments of 1922.
  • Simulaneous Death Act (1940).The California
    statute adds a provision for disposition of community property where both the
    husband and wife are killed. 21
  • Stock Transfer Act (1909).
  • Trust Receipts Act (1933). Civil Code Sec. 3014.5 provides that as to automobile
    dealers the definition of a trust receipt transaction is extended to include
    the case where the trustor gives new value for the trustee’s transfer of a security
    interest in documents or goods already in the trustee’s possession. This extends the
    concept of the trust receipt transaction to include what is essentially a chattel mortgage,
    which is contrary to the basic theory of the Uniform Act. This provision also
    applies to aircraft dealers.
  • Vendor and Purchaser Risk Act (1935).
  • Veterans’ Guardianship Act (1928 and 1942). The 1945 enactment amended the previous California version of the 1928 Uniform Act to conform to the revised act, with the following exceptions: Sec. 2 of the revised
    act is onitted, as is Sec. 18(2) which gives full force and effect to orders of
    commitment by a sister state. In Sec. 10 there are many minor procedural changes,
    and an additional section, after Sec. 18 provides for filing of a certificate of competency
    for one who has been discharged.
  • Warehouse Receipts Act (1906 and 1922). California adopted the original Act in
    1909, which was amended in 1923 to include the 1922 amendments to the Uniform
    Act.