California Supreme Court grants request to file over-length Opening Brief in Brinker Restaurant v. Superior Court

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As indicated on the docket, the Supreme Court granted permission for Petitioner to file an over-length Opening Brief in Brinker Restaurant v. Superior Court.  Sources indicate that the Opening Brief was in the neighborhood of 135 pages, so "over-length" may not truly communicate the magnitude of the Brief.

By all rights, between that Opening Brief and the Opposition Brief, there should be nothing left for amicus filers to discuss.  In theory, Amicus Briefs should not repeat arguments advanced in the briefing by the parties.  In practice, this rule isn't just tested, it is abused.  The Proposition 64 briefing, in particular, took great liberties.  But the Supreme Court has appeared tolerant on this point, at least as indicated by its liberal granting of permission to file Amicus Briefs.  Of course, there is no way of knowing whether such Briefs receive any meaningful consideration if they are duplicative of the parties' Briefs.  I assume the "me too" briefs are primarily intended to exert some measure of pressure on the decision, but no one would ever admit as much.

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Avvo blog creates auto-updating list of blog ranks, based on Alexa traffic stats

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In an effort to provide something more objective, Avvo blog has created an automatically updating list of over 300 of the top legal blogs, based on Alexa traffic data.  Right now, The Complex Litigator ranks 188th on that list, which isn't too shabby given the lofty company found on that list.  Looking over the list, a decent number of California-based blogs appear on Avvo blog's top 300+.  Browse the list and see if you discover anything new for your regular reading list.

[Via Robert Ambrogi's Lawsites blog and @bobambrogi on Twitter]

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No restitutionary recovery of Labor Code section 203 wage penalties

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Greatsealcal100Is it a wage, subject to restitution under the Unfair Competition Law, or is it a penalty, which would be considered damages for purposes of the Unfair Competition Law? In connection with California’s Labor Code, this question has arisen on several occasions in recent years, the most memorable instance being Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094. In the most recent incarnation of this issue, the Court of Appeal (First Appellate District, Division Three) examined whether “penalties” under Labor Code section 203 are recoverable via the Unfair Competition Law in Pineda v. Bank of America, N.A. (January 21, 2009)

Labor Code section 203 provides, in part, that “If an employer willfully fails to pay, without abatement or reduction, in accordance with Sections 201, 201.3, 201.5, 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 therefore is commenced; but the wages shall not continue for more than 30 days. . . . [¶] 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.” In McCoy v. Superior Court (2007) 157 Cal.App.4th 225, the Court held that the extended statute of limitations set forth in section 203 applies only if the penalties are sought in connection with an action for unpaid wages. But if the action seeks only waiting time penalties under section 203, the one-year statute of limitations found in Code of Civil Procedure section 340, subdivision (a) applies. (McCoy, at p. 233.)

In Pineda, the Court of Appeal concluded that, since section 203 permitted recovery of something in excess in earned wages, it could not be considered property subject to restitution:

“ Penalties under section 203, however, are not imposed as compensation for the labor of the employee, but are triggered by the employer’s willful failure to timely pay the wages that have been earned. As the court explained in Tomlinson v. Indymac Bank, F.S.B. (C.D.Cal. 2005) 359 F.Supp.2d 891, 895, “the remedy contained in Section 203 is a penalty because Section 203 does not merely compel [the employer] to restore the status quo ante by compensating Plaintiffs for the time they worked; rather, it acts as a penalty by punishing [the employer] for willfully withholding the wages and forces [the employer] to pay Plaintiffs an additional amount. This type of payment clearly is not restitutionary, and thus cannot be recovered under the UCL.” (See also Montecino v. Spherion Corp. (C.D.Cal. 2006) 427 F.Supp.2d 965, 967 [“§ 203 payments are clearly a penalty, and thus cannot be claimed pursuant to the UCL”]; In re Wal-Mart Stores, Inc. Wage and Hour Litigation (N.D.Cal. 2007) 505 F.Supp.2d 609, 619; Murphy, supra, 40 Cal.4th at pp. 1108-1109.)

(Slip op., at pp. 1-2, footnote omitted.) Plaintiff Pineda advanced the theory that restitution was available because the penalty was a vested property interest due upon failure to timely pay wages.  The Court of Appeal rejected that theory, but complimented Plaintiff for creativity. Nice try, but no cigar.

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CORRECTION: Opening Brief submitted in Brinker Restaurant v. Superior Court

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The Opening Brief in Brinker Restaurant v. Superior Court was submitted to the Supreme Court on January 20, 2009.  Technically, it wasn't filed, since an application for permission to file an overlong brief accompanied the submission.

You can read a copy of the Opening Brief yourself here [Editor's Note: This is the Petition, not the Brief - the corrected link is below], via Acrobat.com.

CORRECTION:  Here is the correct link to the Brief.  The link above is the Petition for Review.

CORRECTION 2:  Due to a problem with the document, I am unable to post the Opening Brief at this time.  I apologize for getting your hopes up.  If I receive a corrected document in the future, I will make that available here.

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Initiative Legal Group LLP is hiring lawyers for firm expansion

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Initiative Legal Group LLP is seeking attorney applicants for its expanding offices.  The job advertisement is as follows:

Initiative Legal Group LLP is expanding and we are looking for litigators at all levels of experience. Attorneys with backgrounds in wage & hour, consumer protection, ERISA, Qui Tam, employment, mass torts, and personal injury are particularly welcome. Please send resume, cover letter as well as compensation history and requirement to 310.943.1588.

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Do the benefits of using Twitter include better writing for lawyers? No.

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While perusing recent Twitter posts, I was directed to a blog post which asserts, as its central premise, that the use of Twitter will make better writers out of lawyers.  (Rex GradelessJosh Camson, Using Twitter to Become a Better Legal Writer (January 19, 2009) socialmedialawstudent.com.)  Respectfully, I must disagree.

Before I do, a brief explanation of Twitter is in order.  Twitter is a social networking and microblogging service that allows you answer the question, "What are you doing?" by sending short text messages 140 characters in length, called "tweets", to your friends, or "followers."  (Tweeternet.com.)  If you haven't used Twitter, the most common question has to be, "What can I possibly do with 140 characters?"  Evidently quite a bit:  18 Super Useful Ways To Use Twitter.

Back to the blog post on Twitter as a tool for improving writing.  Rex said:

“Twitter forces its users to express thoughts in 140 characters or less. Legal professionals who use Twitter are thus required to boil down their thoughts to a short and succinct message. The service does not allow for sloppy word choices and lazy sentence construction.

This analysis does a disservice to the skill that goes into quality legal writing.  Effective legal writing must be clear.  True.  And often, succinct passages are clear passages, or at least more so than a verbose passage of equivalent meaning.  But legal writing that is "short and succinct" as its goal misses the point.  Legal writing must, before all else, communicate its intended message.  If a terse desription of an issue omits important nuance, then the writing is inadequate, irrespective of its "clarity." Twitter's 140 character limit is an artificial restriction that is no substitute for writing with clarity in mind.

The other problem with this premise is that a short sentence only has meaning if it is part of a clear structure.  Twitter does nothing to encourage effective paragraph structure or logical organization.  I think it is more likely the case that the habits learned on Twitter, if not checked, would infuse legal writing with a sense of discontinuity.  Syllogisms are not assembled on one shot sentences.  In an effective legal brief, every part contributes to the whole.

Twitter is many things, but it is not the next source of great legal writers.  Rather, great legal writers will likely make good use of Twitter.

My advice to aspiring writers would be to have someone proof your work and identify every sentence where they slowed down, reread or got stuck.  Eliminate all of those, and your writing is probably clear enough to pull a reader through your points.  Use a second pass to remove cliches and repetition for no clear purpose, and you probably have a brief that outshines 90% of what's produced today.

Just so I'm clear, I don't have an axe to grind with RexJosh.  But I don't want to see what I consider to be shaky advice dispensed that encourages young lawyers to avoid the hard work that is required to learn how to write effectively.  "Oh, I don't need to attend that writing workshop; I use Twitter."  Let's let Twitter be what it is, a dynamic social networking tool, and not what it isn't, a Legal Writing Instructor.

Rex Gradeless, who directed my attention to this article, is @Rex7 on Twitter.  You can find my occasional Twitter posts under @hsleviant.

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Technology Revolution For The Legal Field

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The times, they are a changin'.  Alameda County is set to allow the a real-time web-based video feed of a complex personal injury trial.  This event touches on issues of technology, complex litigation and class actions.  Courtroom View Network will webcast the trial and host archived video on its website.  Next week I should have some sample video to share.  Check back here throughout the week for more information and access to video samples.

Here is some background information from Courtroom View Network's press release about this unusual event:

Courtroom View Network, the company that pioneered showing trials of interest to legal and financial professionals over the Internet, is showing live coverage of the welding fumes liability trial, Thomas v. Lincoln Electric Co. (Case No. RG0722122) in Alameda County (Oakland) Superior Court. The Thomas trial marks the first time allegations that a worker became ill from exposure to welding rod fumes has been heard by a California state court jury. The Thomas case is also the first time Courtroom View Network has been admitted to Webcast a trial from Alameda County.

The plaintiffs allege that welding rod manufacturers knew since 1932 that welding fumes are toxic. They also contend that the industry did not adequately warn welders that the fumes could cause various neurological disorders. Thomas alleges he has suffered “severe physical and emotional injuries” from welding fume exposure. The defendants deny all the allegations.

There is also a pending national class action suit involving thousands of plaintiffs who claim they were injured by welding rod fumes. Four “bellwether” trials have been held; one jury awarded $20.5 million in damages and another $2.4 million. The two other trials resulted in no damages being awarded.

Courtroom View Network is showing the Thomas trial on its Web site, www.courtroomlive.com.  The trial is aired in full, without commercials or commentary. The trial will also be indexed for on-demand viewing.

Courtroom View Network brings three years of experience of Webcasting high-stakes civil litigation to the Thomas trial. Courtroom View Network has covered multiple legal proceedings across the country, including such cases as “Jose Adolfo Tellez et al v. Dole Food Company Inc et al” and “Norman Turner v. Chevron Corporation” in Los Angeles Superior Court. Courtroom View Network’s target audience are members of the legal and financial community who require instant, comprehensive coverage of litigation that affects their business.

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MCLE: Strategies for Pursuing or Opposing Appellate Review in the Absence of Clear Standards

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Here's a worthly teleconference for any class action practitioner spending time in federal court (which should be all of them after CAFA):

Strategies for Pursuing or Opposing Appellate Review in the Absence of Clear Standards

Here is the program outline:

I. Key features of Rule 23(f)

A. No automatic right to appeal

B. No automatic stay of district court proceedings

C. Appeal must be filed within 10 days of class certification order

II. Case law addressing Rule 23(f)

A. “Death knell” cases and “reverse death knell” cases

B. Appeal raises fundamental and unsettled legal issue

C. Clear error in district court ruling

D. “Sliding scale” standard

III. Strategies for pursuing appellate review of class certification decision

IV. Strategies for challenging motion for appellate review of class certification

ClassActionBlawg editor Paul Karlsgodt will be one of the speakers.  More information and materials are available via ClassActionBlawg.

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BREAKING NEWS: Review Granted in Brinkley v. Public Storage, Inc.

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Greatsealcal100As predicted by this blog and others, the Supreme Court has GRANTED review in Brinkley v. Public Storage, Inc., Sup. Ct. Case No. S168806. The matter will be held until Brinker Restaurant Corp. v. Superior Court is resolved. For the full Order of the Court, visit the docket here.  With the number of wage & hour class actions working their way through the system, it is only a matter of time before another Court of Appeal takes up some or all of the issues raised in Brinker and Brinkley, creating a Petition firestorm similar to what occurred with Proposition 64.

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