Smith v. Rae-Venter Law Group

“If an employer fails to pay wages in the amount, time, or manner required by contract or by statute, the employee has two principal options. The employee may seek judicial relief by filing an ordinary civil action against the employer for breach of contract and/or for the wages prescribed by statute. (Lab. Code, §§ 218, 1194.) Or the employee may seek administrative relief by filing a wage claim with the [California Labor Commissioner] pursuant to a special statutory scheme codified in sections 98 to 98.8,” commonly known as a Berman hearing. (Cuadra v. Millan (1998) 17 Cal.4th 855, 858 [ 72 Cal.Rptr.2d 687 , 952 P.2d 704 ], italics omitted.) Where the administrative remedy is pursued, both parties have the right to appeal the decision of the Labor Commissioner (commissioner) to the trial court. (Lab. Code, § 98.2, subd. (a).) 1 In the event such an appeal is taken, section 98.2, subdivision (c) (section 98.2(c)) provides that the court shall assess costs and reasonable attorney fees against an appellant who “is unsuccessful in the appeal.” The purpose of this fee-shifting provision is to discourage frivolous and meritless appeals from the commissioner’s decisions.

We…

An employee who has not received wages when due may either bring a lawsuit against the employer or file a wage claim with the Labor Commissioner, who issues a decision after an informal hearing known as a Berman hearing. If the employee elects to file a wage claim, Labor Code section 98.2 permits either party to “appeal” from the Labor Commissioner’s decision to the superior court. That court then conducts a trial and issues a decision in which the Labor Commissioner’s decision carries no weight at all.

Labor Code section 98.2 further provides that the party who brings the appeal must pay the other party’s attorney fees if the appealing party is “unsuccessful in the appeal.” Departing from established precedent, the majority holds that, for purposes of this fee-shifting provision, an appeal is unsuccessful if the superior court judgment is not more favorable to the appealing party than the Labor Commissioner’s decision. Because this construction of Labor Code section 98.2 is a radical departure from past decisional authority, the majority declines to apply it to this case.

I agree with the majority’s disposition, which is consistent with past decisional authority, but I disagree…

Timothy L. Smith, in pro. per.

Law Offices of Ellen Lake, Ellen Lake, Oakland; Norland & Kays and Gregg L. Kays,' San Jose, for Plaintiff and Appellant.

Miles E. Locker, San Francisco, for the Division of Labor Standards Enforcement as Amicus Curiae on behalf of Plaintiff and Appellant.

Michael Gaitley, San Francisco, and David Pogrel, for The Legal Aid Society— Employment Law Center as Amicus Curiae on behalf of Plaintiff and Appellant.

Cynthia Rice, Santa Rosa, and Michael Meuter, for California Rural Legal Assistance, Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.

Genevie Gallegaos, for La Raza Centro Legal, Inc., as Amicus Curiae on behalf of Plaintiff and Appellant.

Marci Seville, and Donna Ryu, Berkeley, for Women's Employment Rights Clinic as Amicus Curiae on behalf of Plaintiff and Appellant.

Helen Yu-chuin Chen, San Francisco, for Asian Law Caucus as Amicus Curiae on behalf of Plaintiff and Appellant.

Margaret Stevenson and Ellen Braff Fuajardo for East Palo Alto Community Law Project as Amicus Curiae on behalf of Plaintiff and Appellant.

Marcela Siderman for Legal Aid Foundation of Los Angeles as Amicus Curiae on behalf of Plaintiff and…