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.

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!

Summoned for Jury Duty in Los Angeles

A couple of weeks ago I received my summons for jury duty.  As a trial attorney, I deeply appreciate the important role the public plays in the jury system and its critical role in our legal system.  I also do not believe that any attorney takes for granted the sacrifice jurors make when sitting on a jury, but I do believe that the appreciation attorneys feel towards jurors is probably not as great as it perhaps should be.  Receiving my jury summons truly makes me appreciate what jurors have to go through once they are asked to report for jury duty.

In Los Angeles, when you receive a Summons for Jury Service you have to take affirmative actions in order to ensure that you do not run afoul of your legal obligations.  Specifically, the Summons sets forth the duties, you as a potential juror, are required to comply with upon receipt of the Jury Summons.

Registration with the Los Angeles County Superior Court

There are two ways to register with the Los Angeles County Superior Court after receiving your Jury Summons, either by telephone at 213-972-0970 or online at http://www.lacourt.org/jury.  You are required to register within 5 days of receiving your jury summons, so do not waste time and miss this deadline.

When calling by telephone at 213-972-0370, be sure to have your Summons for Jury Service in front of you because you will need to provide your Juror ID Number, Pin Number and answer several questions regarding your availability to serve on a jury.  The process is rather quick and only takes a couple of minutes.

When registering on-line, you will also want your Summons for Jury Service handy because you will also need to provide yourJuror ID Number, Pin Number and answer several questions regarding your availability to serve on a jury.  During this initial registration process, you can ask for a delay in serving on a jury, however simply asking for a delay to serve does not mean your request will be granted.  The County of Los Angeles clamped down on bogus excuses for delaying jury service several years ago, so if you do not have a strong, legitimate reason for delaying jury service, your request for a delay will be denied.

On-Call Jury Duty

Jury duty always begins on a Monday, so the Sunday evening before you are to begin jury duty you are required to call the registration telephone number (213-972-0970) or use they jury service portal on the Los Angeles County Superior Court website at www.lacourt.org/jury.  You will be informed whether you have to report for jury duty on Monday.  If you are not required to report for jury duty on Monday, you do not have to appear at the Superior Court.  However, that does not mean you are finished with jury service.  Instead, you are required to check on Monday evening to see if you need to report for jury duty on Tuesday.

You keep checking to see if you report for jury duty until, (1) you are required to report to the courthouse for jury duty; or (2) you checked-in everyday from Sunday to Thursday to see if you are required to report for jury duty and on none of those days were you required to report for jury service.

The Los Angeles County Superior Court has a good system in place that only calls people to jury service if they are needed.  It lessens the burden on the individual and businesses, while also ensuring that every litigant gets the opportunity to have his or her case heard before a jury of peers.

If you have any questions about jury service or any other legal services, please contact The Rinka Law Firm, PC at 310-556-9653.

New California Employment Laws for 2019

Image result for sacramento capitol building

With the end of 2018 just around the corner, it is time to look at the new California employment laws that will affect your rights as an employee.  The following is a list of new employment laws that will govern the employee-employer relationship beginning on January 1, 2019.

AB3109 (Disclosure of Sexual Harassment): This new law prohibits an employer from putting any provision in a settlement agreement or contract that prevents an employee (current or former) from testifying about criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding.  Often when an employer settles a sexual harassment claim, there will be a confidentiality provision in the settlement agreement which prevents the employee from speaking about the harassment.  This provision essentially removes the confidentiality provision as it relates to an employee testifying at an administrative, legislative or judicial proceeding.

SB 224 (Sexual Harassment):  Under this law the types of relationships that can be subject to a claim for sexual harassment will be expanded.  In particular, this law provides examples of professional relationships where sexual harassment claims may authorize the DFEH to investigate the claim.  These professional relationships include lobbyists, elected officials, directors, producers, and investors.

SB 820 (Settlement of Sexual Harassment Claims): This law will prohibit a settlement agreement, entered into after January 1, 2019, from containing a provision that precludes an employee from disclosing information relating to claims of sexual assault, sexual harassment, gender discrimination or retaliation that was filed with the court or an administrative agency.  However, the settlement agreement can contain a provision that prohibits an employee from disclosing the monetary settlement amount.  Lastly, at the employee’s request, the settlement agreement may contain a provision that limits the disclosure of the employee’s identity or facts that would lead to the discovery of the employee’s identity.

SB 826 (Female Inclusion on Board of Directors): This law will require publicly held domestic and foreign corporations with principal executive offices in California to have at least one female director on the board by the end of 2019.  By the end of 2021, these corporation will have to comply with the following standards:(1) If the number of directors is six or more, the corporation shall have a minimum of three female directors; (2) If the number of directors is five, the corporation shall have a minimum of two female directors; and (3) If the number of directors is four or fewer, the corporation shall have a minimum of one female director.

SB 1123 (Expansion of Paid Family Leave): Under this new law, an employee will be entitled to paid family leave benefits beginning on January 1, 2021 for taking time off for if it is due to being called to active duty or a spouse, domestic partner, parent, or child being called to active duty.

SB 1252 (Payment for Copying of Payroll Records): This law clarifies that when an employee requests copies of his or her payroll records, the employer is responsible for the copying costs associated with copying the employee’s payroll records.

SB 1300 (FEHA Sexual Harassment Provisions): This law expands the Government Code by including a provision making it unlawful for an employer to require an employee to release a harassment and/or discrimination claim in exchange for a bonus, raise or continued employment.  It also makes employers liable for any kind of unlawful harassment by non-employees where the employer knew or should have known about the harassment and failed to take action.  Lastly, it makes it more difficult for harassment claims to be dismissed through the summary judgment process.

SB 1343 (Sexual Harassment Training):  Employers with 5 or more employees will be required to provide sexual harassment training.  Furthermore, employers will be required to provide at least 2 hours of harassment training to supervisory employees and at least one hour so harassment training to non-supervisory employees by January 1, 2020.

SB 1412 (Criminal History Inquiries): This law limits an employer’s criminal history check by having the employer consider only a “particular conviction” that is relevant to the job when screening applicants using a criminal background check.  Meaning the employer cannot go and scour an employee’s background looking for irrelevant crimes, giving the employee privacy relating to his or her background.

SB 1619 (Increase in the Sexual Assault Statute of Limitations): The statute of limitations for a sexual assault civil lawsuit is increased to ten years after the assault or 3 years after the plaintiff discovered or should have reasonably discovered injury as a result of the assault, whichever is later.

SB 1976 (Lactation Accommodation): This law modifies the current lactation law by requiring a lactation station to be something other than a toilet stall.  The law further provides that the station should be permanent, but can be temporary if:(1) the employer is unable to provide a permanent location due to operational, financial, or space limitations; (2) the temporary location is private and free from intrusion while being used for lactation purposes; and (3) the temporary location is not used for other purposes while being used for lactation.

If you have any questions about these new employment laws, please contact an attorney at The Rinka Law Firm, PC.  Our telephone number is 310-556-9653.

What Final Wages Am I Owed When I Quit or I Am Fired?

Earnings Statement

A common wage dispute that arises between an employee and his or her employer at the time that the employee either quits or is fired is what are the final wages the employee should be paid.  In addition, when is the employer required to pay the final wages.

WHEN AM I ENTITLED TO MY FINAL PAYCHECK?

The timing of when you should receive your last paycheck depends on whether you quit or are fired.  When you are terminated from your position, your employer is required to provide you with your final paycheck at the time of your termination.  See Labor Code Section 201.

If you quit your job without giving any prior notice and you do not have a written employment contract, then your employer has seventy-two (72) hours to pay all wages owed to you.  See Labor Code Section 202(a).  The final check can be mailed to your residence if you so desire and you provide your employer with the address.

If you provide your employer with at least seventy-two (72) hours notice that you intend to quit your job, then your employer is required to provide you with your final paycheck on your last day of work.  See Labor Code Section 202(a).

WHAT WAGES AM I ENTITLED TO ON MY LAST PAYCHECK?

Regardless if you quit your position or if you are terminated, the wages you are entitled to when you leave your employment is the same.  Specifically, when you leave your employment, you are entitled to all wages worked, including all overtime hours.  In addition, you are entitled to payment of all accrued and unused vacation time.

The wages must be paid to you by check.  If you had direct deposit with your employer, the direct deposit ends on your last day of employment.  Furthermore, your final paycheck can be deposited only if you authorize your employer to directly deposit your final paycheck.

WHAT IF I AM NOT TIMELY GIVEN MY FINAL PAYCHECK?

If you are not paid all your wages when you quit or are terminated, you may be entitled to waiting time penalties as prescribed by law.  Namely, if it is determined that the employer willfully withheld wages owed to you, you may be able to obtain waiting time penalties in an amount equal to your daily rate of pay for each day the wages remain unpaid, up to a maximum of thirty (30) calendar days.

However, if there is a good faith dispute as to the amount of final wages owed to you, then waiting time penalties will not be assessed.  Also, if you refuse to accept your final check from your employer, then you will not be awarded waiting time penalties.

If you have any further questions, please contact an attorney at The Rinka Law Firm, PC at 310-556-9653.

What Happens if I Miss My Meal and Rest Periods?

Meal Periods

Under California law, an hourly employee who works six or more hours a day is entitled to an unpaid and uninterrupted 30 minute meal period.  During this 30 minute meal period, the employee is not required to perform any work related activities.  However, if the employee does not take the 30 minute meal period that does not necessarily mean that the employer is at fault.

In a case called Brinker Restaurant Corp. v. Superior Court, the California Supreme Court held that while an employer is required to allow an employee an uninterrupted 30 minute meal break when he or she works 6 or more hours, the employer is not required to police the employee to make sure the lunch is taken.  In other words, if your employer tells you that you are allowed to take a lunch period during a certain time period and you take your lunch breaks on certain days and you decide not to take lunch breaks on other days, the employer will likely not be found liable to you for your missed meal periods.  The California Supreme Court has shifted the responsibility of taking the lunch break onto the employee.

Now, under California Labor Law, if an employee misses a lunch period, that employee is entitled to one hour of additional wages for the day that the meal period was missed.  If the employer fails to pay the employee for the missed meal period, it potentially opens the employee up to significant fees and penalties.  However, if an employee chose to skip the meal period, then the employer is not required to pay the employee the additional hour’s wage for the day that the employee skipped his or her meal period.

In the instance where the employee is required to work through lunch at the request of the employer or attend a mandatory meeting during the lunch hour, the employer is required to pay the employee the one hour wage for that lunch period.  The hour wage that the employer is required to pay is the straight wage, not overtime, regardless if the employee worked more than 8 hours on the day that she or he was required to work through lunch.

Rest Periods

An employer is required to provide a paid 10 minute rest period for every 4 hours worked or fraction thereof.  Accordingly, if one is scheduled to work 8 hours that would entitle the employee to two paid 10 minute rest periods.  As is the case with lunch periods, an employee is entitled to one hour’s pay for missing a rest period.  However, if the employee misses both mandated rest periods, he or she is still only entitled to only one hour of wages.

During these rest periods, the employer must relieve employees of all duties during rest breaks and relinquish any control over how the employee spends his or her break time.  In addition, it is the employee’s responsibility to take the rest period.  If the employee decides to work through the rest period, despite being allowed to take a break, the employer will not be responsible to pay the employee an hour’s wage.

If you have any further questions about missed meal and lunch periods, please contact an attorney at The Rinka Law Firm, PC at 310-556-9653.

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