Appellate Practice
Mar. 10, 2017
How to Define a Day of Rest?
Luke Wake (NFIB Small Bus. Legal Center) argues why plaintiffs' claims in a pending Cal. Supreme Court employment case stretch Labor Code "day of rest" protections too far; Will Jay Pirkey (Dep. City Atty, LA) explains how the court's recent decision in Perry v. Bakewell Hawthorne LLC makes untimely expert disclosure more likely to torpedo your summary judgment defense
This week's show examines two California Supreme Court cases with meaningful implications for attorneys practicing in a range of areas. The high court ruled on one at the end of February, and its decision in the other is due in the coming weeks.
Luke Wake, of the National Federation of Independent Business Small Business Legal Center joins us to chat about the case still awaiting its decision. That matter is Mendoza et al v. Nordstrom, a Private Attorney General Act suit that wound it way through state court and federal district court before the 9th Circuit certified the case's three salient questions for review by the California Supreme Court. Those questions involve the interpretation of state labor codes that entitle employees in California to one day of rest out of seven, and prevent employers from causing employees to work on that stipulated rest day. The questions here involve whether the seven days identified in the statute are part of a static, Monday-to-Sunday-type workweek, or might comprise any seven-day window, and also what exactly it means for an employer to "cause" an employee to miss a day of rest. The answers to those questions, Mr. Wake explains, have dramatic impacts in terms of scheduling flexibility, public policy generally, and significant potential liability that a decision favorable to the plaintiffs here would create.
Then, Deputy City Attorney Will Jay Pirkey will visit to chat about Perry v. Bakewell Hawthorne LLC, a decision that harmonizes two Civil Procedure Code sections, and restates the court's modern favorable approach toward summary judgment motions. The two code sections at issue are CCP 2034, under which an attorney may demand information on his or her opposite number's intended expert testimony, and CCP 473c, relating to summary judgment. The high court, in a concise opinion overruling prior case law holding to the contrary, held that failure to timely produce expert information in response to 2034 motions could very well leave an attorney without any defense to a summary judgment motion, even where that attorney has mustered expert testimony in the interim.
Don't forget CLE credit is available for listeners, and enjoy the show. <!-- Weekly Appellate Report Podcast -->
Brian Cardile
brian_cardile@dailyjournal.com
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