What is written discovery?

In this video I discuss the different types of written discovery used in litigation.  In particular, I discuss form interrogatories, special interrogatories, requests for admissions and request for production of documents.

Service of the Complaint.

Below is my latest video blog discussing the different ways a plaintiff may serve a complaint on the defendant.  If you have any questions about this video or any other legal questions, please feel free to contact our firm at 310-556-9653.

Responding to a Complaint.

In this video, I discuss what actions should be taken when someone is served with a complaint.

If you have any questions regarding this topic, please contact The Rinka Law Firm, PC at 310-556-9653.

How to file a lawsuit.

I have started a new YouTube channel under The Rinka Law Firm, PC.  On this channel I will be discussing the procedures that must be followed when filing a lawsuit, as well as various laws regarding employment litigation and personal injury.

Below is my first YouTube video.  I hope you enjoy it.

What is a C.C.P. Section 998 Offer to Compromise?

CCP Section 998 Offer to Compromise is named after the California Code of Civil Procedure Section 998 that defines the function of an offer to compromise. A CCP Section 998 Offer to Compromise can be a valuable tool to try and settle a lawsuit.

The purpose of a 998 Offer to Compromise is to shift the costs from the prevailing party in a lawsuit to the non-prevailing party as a penalty for not accepting a reasonable settlement offer.  Below are two typical scenarios involving a 998 offer to Compromise.

Plaintiff Beats HIs/Her 998 Offer to Compromise Issued to Defendant

The first example is a situation where the Plaintiff makes a 998 Offer to Compromise to Defendant for $100,000.00.  Now, if the Defendant accepts Plaintiff’s offer to compromise of $100,000.00, the lawsuit is over.

In the event that the Plaintiff obtains a judgment in excess of $100,000.00, the Defendant could be responsible to pay all the expert witness costs Plaintiff incurred in prosecuting his or her case from the date that the Plaintiff issued the 998 Offer through verdict.  So, in an automobile accident, the Plaintiff has to retain medical experts to testify at trial about the Plaintiff’s injuries, these costs can easily exceed $20,000.00.  If the Plaintiff obtains a judgment in excess of the $100,000.00, the Defendant would be responsible for these expert witness costs.

In addition, if the auto insurance policy had a liability limit of $100,000.00 and the Defendant insurance company rejected Plaintiff’s 998 Offer of $100,000.00, the insurance company could be responsible for the judgement amount in excess of $100,000.00.

So as you can see, by obtaining a verdict in excess of the 998 Offer amount, the Plaintiff not only receives the judgement amount, but also does not have to pay for any of the expert witness costs incurred in obtaining the judgment.  This can lead to a windfall by the Plaintiff of tens of thousands of dollars.

Defendant Beats Its Offer to Compromise Issued to Plaintiff

If a Plaintiff rejects a 998 Offer to Compromise issued by Defendant and fails to obtain a verdict for more than the 998 Offer, Plaintiff could be responsible for Defendant’s expert witness costs as well as court costs, deposition costs and copying costs.  In addition, even if the Plaintiff obtains a favorable verdict, which would normally entitle Plaintiff to recover certain court costs pursuant to CCP sections 1032 and 1033.5 from Defendant, if the verdict amount did not exceed Defendant’s 998 Offer, Plaintiff may be denied the recovery of certain costs from Defendant.

Accordingly, if Defendant issued a 998 Offer in the amount of $150,000.00 and Plaintiff obtained a verdict for $100,000.00, the Plaintiff could end up owing Defendant money if the Defendant’s costs exceed $100,000.00.

998 Requirements 

A 998 Offer to Compromise must be in writing, made in a timely manner and be clear, specific and calculable to the offeree.

A 998 Offer to Compromise can be made at any time up to ten (10) days before trial.  The offer is deemed withdrawn after 30 days or the start of trial/arbitration.

Lastly, the offer must be reasonable.  Reasonableness really comes down to whether at the time that the offer was made, did the party receiving the offer have enough information to determine whether the offer to compromise was reasonable.  This determination will come down to whether the parties had an opportunity to learn about the facts underlying the lawsuit to adequately assess whether the offer to compromise was reasonable.

A court will likely find that the party did not have an opportunity to determine the reasonable of the offer to compromise if the offer is made within weeks after the lawsuit started.  It is important for the parties to develop the facts before issuing a 998 Offer to Compromise.

If you have any questions regarding this matter or have a general legal question, please feel free to contact the attorneys at The Rinka Law Firm, PC at 310-556-9653.

When do I get Lunch and Rest Periods? (2019)

Under California labor law, an employee who is non-exempt is entitled to meal and rest periods.  I discussed the difference between a non-exempt employee and an exempt employee in a prior blog; you can click here to read the entry in its entirety.  Briefly, a non-exempt employee is an hourly employee that must be paid overtime and must be given lunch and rest breaks.  Whereas, an exempt employee must be a professional, such as a doctor, lawyer, accountant, an exempt employee is a paid salary and the employer does not need to ensure that the exempt employee receives his or her meal and rest periods.

CALIFORNIA REST PERIOD LAW

An employer is required to provide an employee a paid 10 minute uninterrupted rest period if the employee works 4 to 6 hours.  When the employee is on his or her break, s/he is allowed to leave the premises, make personal telephone calls and not perform any work.  The rest period should also occur as closely to the middle of the employee’s work shift as possible.  In the event that the employee is not given time to take a 10 minute uninterrupted rest period, the employee is entitled to one hour’s wage.

If the employee is scheduled to work 6 hours 1 minute up to 10 hours the employee is entitled to a second 10 minute uninterrupted rest period.  In the event that the employee is not given time to take a second rest period, the employee is entitled to one hour’s wage.  However, if an employee misses to rest periods in one shift, the employee is still only entitled to one hour’s wage as compensation, despite missing two breaks.

Below is a chart that sets forth the number of breaks an employee is entitled to based on the number of hours worked.

Number of Hours Worked

Number of Rest Breaks

0 – 3 hrs. 29 mins.

0

3:30 – 6 hrs.

1

6:01 – 10 hrs.

2

10:01 – 14 hr.

3

CALIFORNIA LUNCH BREAK LAW

Under California Labor Law, a non-exempt employee is entitled to at least a 30 minute lunch break when the employee has worked more than five hours.  Accordingly, an employee who is scheduled to work 8 hours, would be entitled to two paid 10 minute rest periods and one 30 minute lunch period.

Unlike the 10 minute rest periods, the employer is not required to pay the employee while on lunch break.  However, the employee is allowed to leave the employer’s premises, conduct personal business, not perform any work related activities.

It is important to understand that the employee has an affirmative duty to take his or her rest periods.  The employer only has to provide the employee with the opportunity to take a lunch, so if the employee fails to take lunch when given the opportunity to do so, the employee is not entitled any compensation for the missed meal period.  If you do not have time to take a lunch break during the day, you are entitled to one hour’s worth of wages for your missed lunch break.

An employee is allowed to waive his or her meal period if it done so in writing and signed by the employee.  The waiver must also state that the waiver can be revoked at any time by writing.  If, however, the employee is scheduled to work more than 6 hours, the employee cannot waive the meal period.

When an employee is on a meal break, the employee is allowed to leave the premises and perform personal errands.  The employee is not to perform any work related activities.

If you are an exempt employee, your employer is not legally required to provide you meal and rest periods.

If you have any questions about California’s meal and rest period laws, please contact the attorneys at The Rinka Law Firm, PC at 310-556-9653 and receive a free consultation.

What is Workplace Retaliation?

California is an at-will employment state.  This means that you can be terminated from your employment for no reason at all, unless you have a written contract with your employer.  Likewise, an employee can quit his or her employment at any time, without giving any notice.

Although California is an at-will state, this does not mean that employer is permitted to terminate an employee for any reason.  In this blog post, I will discuss when an employer’s termination or other negative action against an employee can be classified as a workplace retaliation.

Under California law, an employee has certain protections against termination or other adverse employment actions in an at-will employment arrangement.  In particular, an employer is forbidden from terminating or taking a negative action against an employee who commits one of the following acts:

  • Reports workplace harassment, such as sexual harassment, racial harassment
  • Reports  workplace discrimination
  • Reports unpaid wages and unpaid overtime
  • Participates in a lawsuit against his or her employer
  • Reports workplace hazards or injuries
  • Reports an employer’s illegal activities and violations of employee rights to a governmental agency

It is obvious the reason why an employer cannot terminate or reprimand an employee for reporting improper and/or illegal activities occurring in the workplace.   The legislature wanted to provide employees with protections against retribution for reporting an employer’s misconduct and/or that of its employees.  By providing employees with this protection, it fosters a safe workplace environment free of harassment and discrimination due to the fact that an employee can report misconduct without fear of retribution.

Naturally, in the real world, things are not so perfect. Instead, it is very common for an employee to suffer retribution for reporting improper or illegal activities committed by an employer and/or its employees.  Typically, in an employment lawsuit premised on the grounds that the employee was retaliated against for disclosing improper or illegal acts, the employee will suffer an “adverse employment action” within a relatively close proximity to when the employee disclosed the illegal or improper activity to Human Resources or a governmental agency.

Actions that could be considered retaliatory in an employment setting are as follows:

  • Being terminated.
  • Being written up for trivial matters after having a record of high performance reviews.
  • Being demoted.
  • A change in work duties or a change in work schedule in order to make it more difficult for the employee to perform his or her job.
  • Being passed over for promotions.

These types of actions taken against an employee for reporting improper and/or illegal activities would give rise to a claim for workplace retaliation.

If you have suffered workplace retaliation resulting from the reporting of an improper and/or illegal activity by your employer, speak to an attorney at The Rinka Law Firm, PC at 310-556-9653 to discuss your case.  We are here to help.

New Los Angeles Alumni Network Leader for U of Minnesota

I am pleased to announce that I am the new Los Angeles Alumni Network Leader for the University of Minnesota. I look forward to meeting fellow alumni and their families in 2019. Please be on the lookout for an announcement setting forth information about the first alumni event scheduled for next month. Ski-U-Mah!

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