Nishiki v. Danko Meredith, APC

236 Cal. Rptr. 3d 626, 25 Cal. App. 5th 883
California Court of Appeal, 5th District·Decided August 1, 2018·No. A147733·Published·Cited by 24 cases

Opinion

Schulman, J.*

*887When an employee resigns without notice, California law requires the employer to pay all wages within 72 hours. ( Lab. Code § 202, subd. (a)1 .) If the employer willfully fails to do so, the employee's wages continue as a penalty from that due *631date until the wages are paid, for up to 30 days. (§ 203.) This case considers an award of these "waiting time" penalties, as well as an award of attorney fees to the employee for the employer's unsuccessful appeal. (§ 98.2.) *888Taryn Nishiki, a former employee of defendant Danko Meredith P.C.,2 filed a complaint with the California Labor Commissioner (the commissioner) seeking vacation wages, rest period premiums, and waiting time penalties. She prevailed on her claim for waiting time penalties, and was awarded $4,250. Defendant appealed the award to the superior court, which affirmed the commissioner's award, and awarded Nishiki $86,160 in attorney fees. On appeal, defendant contends the waiting time penalties are unwarranted and the attorney fee award was excessive. We shall reduce the waiting time penalties and otherwise affirm the judgment.

I. BACKGROUND

The pertinent facts are largely undisputed. Nishiki worked for defendant, a law firm, as office manager and paralegal. She resigned by sending an email to defendant's two partners, Danko and Meredith, at 6:38 p.m. on Friday, November 14, 2014. In the email, she noted that her unused vacation time "needs to be paid within 72 hours of my notice of resignation." She sent a copy of the email to Sharman Blood, defendant's bookkeeper, and Blood sent an email about Nishiki's resignation to both partners at 9:08 a.m. on Saturday, November 15.

At the time Nishiki resigned, she was owed $2,880.31 for her unused vacation time. Defendant mailed her a handwritten check on Tuesday, November 18. The check, signed by Meredith, had an inconsistency: the amount in numerals in the dollar amount box was "2,880.31," the correct amount; however, the amount as spelled out was "Two thousand eight hundred and 31/100," or $80 less than the correct amount.

On Wednesday, November 26, at 9:46 a.m., Nishiki sent an email to Meredith telling her she had been unable to deposit the check because of the inconsistency between the numerical and written amounts, and asserting she was therefore entitled to waiting time penalties. Just after midnight on Thursday, November 27-Thanksgiving Day-Meredith responded in an email, "No check has been refused or returned so we are unable to confirm it was not honored upon presentation to the bank." Nishiki responded that she had taken the check to the bank, but that the bank could not accept it because of the discrepancy. On Monday, December 1, Meredith sent an email in response: "Notwithstanding what your bank told you, the check you were sent is negotiable. If you would like to return the check to the office, we will issue you a new one. If you wish to keep the check, we'll issue a second *889check for $80. We can mail the check or you can pick it up at the office. Let me know what you want to do." Nishiki replied that the bank was not able to accept a check with two different amounts on it, and said she was out of state but had mailed the check to defendant. Defendant mailed a corrected check for $2,880.31 to Nishiki on Friday, December 5, 2014.

Nishiki filed a complaint with the commissioner. She sought (1) unpaid vacation wages of $366.88; (2) rest period premiums of $23,718.75; and (3) waiting time penalties for the delay in receiving the $2,880.31 *632check, in the amount of $7,500, calculated as 30 days at the rate of $250 per day.

The hearing officer rejected Nishiki's first two claims for relief. He found Nishiki had been paid for all of her accrued vacation time and that she had not been denied rest periods. As to her waiting time claim-that is, for the time between her resignation and when she received the corrected check-the hearing officer found she was entitled to the penalties for the time between November 18, 2014 and December 5, 2014, and thus awarded her $4,250, or her $250 average daily wage times 17 days.

Defendant appealed the award to the superior court. (§ 98.2.) After a trial de novo, the court found Nishiki was entitled to 17 days of waiting time penalties, or $4,250. Nishiki moved for statutory attorney fees (§ 98.2, subd. (c) ), and the court awarded her $86,160 in fees. Defendant appealed from the judgment.

II. DISCUSSION

A. Waiting Time Penalties

Defendant contends Nishiki is not entitled to waiting time penalties. Section 202, subdivision (a) provides in pertinent part: "If an employee not having a written contract for a definite period quits his or her employment, his or her wages shall become due and payable not later than 72 hours thereafter, unless the employee has given 72 hours previous notice of his or her intention to quit, in which case the employee is entitled to his or her wages at the time of quitting." Section 203, subdivision (a) establishes the waiting time penalties: "If an employer willfully fails to pay, without abatement or reduction, in accordance with Section[ ] ... 202 ..., 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 therefor is commenced; but the wages shall not continue for more than 30 days."

Defendant's first contention is that the 72-hour period for paying wages did not begin to run at 6:38 p.m.-that is, after the close of *890business-on Friday, November 14, 2014, but rather at the beginning of business hours on Monday, November 17. The parties have not cited any authority considering whether the 72 hours begins to run immediately if the manner in which the employee resigns does not ensure that the employer would actually receive the notice until business opens on a later day, and our own research has disclosed none. In considering this issue, however, we are guided by the rule that in interpreting a statute, "[w]e presume that ... legislative provisions were not intended to produce unreasonable results and adopt a common sense construction over one leading to mischief or absurdity." ( In re Samano (1995) 31 Cal.App.4th 984, 989, 37 Cal.Rptr.2d 491.)

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Nishiki v. Danko Meredith, APC, 236 Cal. Rptr. 3d 626, 25 Cal. App. 5th 883 (Cal. Ct. App. 2018).

236 Cal. Rptr. 3d 626 (Nishiki v. Danko Meredith, APC) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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