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Attorney fees and Mediation

I would like to hear what arguments in Mediation you can bri meshuggah09/21/17
That sounds like a specious cause of action which actually m jeffm09/21/17
You can always admit liability. Not much attorney work the p jorgedeclaro09/21/17
What statute are they citing for attorney fee recovery? What guyingorillasuit09/21/17
Yes LC 226 lack of wage statements and cash payments, for 2 meshuggah09/21/17
Is that $20k including attorney fees? Why are the actual dam guyingorillasuit09/21/17
Yes, that is the total settlement. How are the actual damag meshuggah09/21/17
What statute are they citing for civil penalties? guyingorillasuit09/21/17
Labor Code 226.3 "Any employer who violates subdivision ( meshuggah09/21/17
Can a private party recover civil penalties? jeffm09/21/17
From Deering (Lexis): "Plain language of Lab C § 226.3 st guyingorillasuit09/21/17
Appreciated! But: The first problem is that Plaintiff does meshuggah09/21/17
You might very well be right. This is not my area, and I hav guyingorillasuit09/21/17
I always appreciate your input! Thank you. You probably reme meshuggah09/22/17
If you feel confident in it and would do it again, then, jus jeffm09/22/17
I think it depends entirely on what the statute says. Fo majorkong09/21/17
meshuggah (Sep 21, 2017 - 3:25 am)

I would like to hear what arguments in Mediation you can bring on the table when major part of your settlement will be the attorney fees which are recoverable under a statute.
For example in employment law cases (wage & hour) when plaintiffs is paid cash by your client who did not provide wage statements there is a statutory presumption for injury for the plaintiff, hence attorney fees. If you don't settle in Mediation for portion of the attorney fees you are running the risk going to trial to pay 6 figuers attorney fees and small amount of actual damages, because you paid plaintiff cash and did not provide wage statements regardless of your intentions.
So how objectively you can calculate what is fair as to attorney fees in Mediation knowing going to trial you will pay a full amount of attorney fees because of lack of a difense?

Thank you.

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jeffm (Sep 21, 2017 - 11:30 am)

That sounds like a specious cause of action which actually made it into law.

As a defendant, I would suggest that the plaintiff has the burden to prove the amount of his damages, even if it is presumed he is damaged. If he's not "really" damaged, it's a bogus case, likely driven by the attorney who represents a dumb client. In such a case, what is a "reasonable" and "necessary" attorney's fee? Zip! They shouldn't be bringing cases like this.

On the other hand, if plaintiff has a real number he claims he can back up, make him explain it to your reasonable satisfaction. Then, you have a real case and can also really talk about fees.

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jorgedeclaro (Sep 21, 2017 - 11:36 am)

You can always admit liability. Not much attorney work the plaintiff after you do that.

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guyingorillasuit (Sep 21, 2017 - 1:23 pm)

What statute are they citing for attorney fee recovery? What is the statute that your client violated? Are they only going under Lab. C. 226, or are there other plausible causes of action?

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meshuggah (Sep 21, 2017 - 4:24 pm)

Yes LC 226 lack of wage statements and cash payments, for 2 months actual damages 8K. We settle for 20K. The case is 2 years old we did depos, discovery amd hearings. Boss is unhappy with settlement too high wtf

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guyingorillasuit (Sep 21, 2017 - 4:30 pm)

Is that $20k including attorney fees? Why are the actual damages $8k?

On another note, the boss should be nowhere near payroll. A payroll company should be handling payroll - someone like Paychex or ADP.

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meshuggah (Sep 21, 2017 - 4:52 pm)

Yes, that is the total settlement.
How are the actual damages:
50 for 1st violatio and then 100 for subsequent 8 payperiods 750 + civil penalties: 250 first violation + 1000 subsequent: 7250
Total: 8000.
If trial we'll lose on these causes of action plus attorney fees in the 6 figures.

Moreover the IRS can deside to inquire for lack of paid deduction and go individualy after the owner who paid cash.

great settlement in my eyes considering the exposure

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guyingorillasuit (Sep 21, 2017 - 6:08 pm)

What statute are they citing for civil penalties?

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meshuggah (Sep 21, 2017 - 6:35 pm)

Labor Code 226.3

"Any employer who violates subdivision (a) of Section 226 shall be subject to civil penalty in the amount of 250 per employee violation etc

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jeffm (Sep 21, 2017 - 7:52 pm)

Can a private party recover civil penalties?

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guyingorillasuit (Sep 21, 2017 - 9:32 pm)

From Deering (Lexis): "Plain language of Lab C § 226.3 strongly suggests that the provision is to be enforced solely by the Labor Commissioner. It is clear that the language of § 226.3 does not provide for a private cause of action. Finder v. Leprino Foods Co. (E.D. Cal. Mar. 12, 2015), 2015 U.S. Dist. LEXIS 30652."

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meshuggah (Sep 21, 2017 - 10:49 pm)

Appreciated! But:
The first problem is that Plaintiff does not allege facts that give rise to Section 226.3 penalties. The requirements of Section 226.3 are somewhat different than that of Section 226(a). See York v. Starbucks Corp., 2012 U.S. Dist. LEXIS 190239, *24 (C.D. Cal. Nov. 1, 2012) ("Plaintiff alleges only that relevant information was missing from her wage statements, not that Defendants failed entirely to furnish wage statements")

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guyingorillasuit (Sep 21, 2017 - 11:34 pm)

You might very well be right. This is not my area, and I have no idea whether or not 226.3 applies.

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meshuggah (Sep 22, 2017 - 12:27 am)

I always appreciate your input! Thank you. You probably remember my other post for trial on the same case that got settle. I just want to be right for my sake. I strongly belive that going to trial would have brought worst result. The mddiator I chose was a retired Judge from Stanley Mosk court. He recited exactly what I advice my boss prior to mediation.
I checked and in employment law small violations can bring huge attorney fees.
I think that using CCP 998 setllement offer after discovery somewhat can limit the attorney fees even though its risky move.

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jeffm (Sep 22, 2017 - 12:35 pm)

If you feel confident in it and would do it again, then, just chalk up any differences of opinion as just that.

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majorkong (Sep 21, 2017 - 3:40 pm)

I think it depends entirely on what the statute says.

For instance, there is a lot of case law out there on attorneys fees in 1983 litigation. Just because fees are authorized by statute doesn't mean that the parties can't waive them as part of a settlement agreement. I remember a case from Lawl School that involved a pre-trial settlement in a 1983 action that specifically excluded attorney's fees. Plaintiff got all the relief they had demanded (and more), but their lawyers got zilch by way of a fee as part of the settlement agreement. The lawyer appealed. They lost. Evans v. Jeff D., 475 U.S. 717, 106 S. Ct. 1531 (1986).

There's some other case law (that I'm too lazy to pull right now) that states where a pre-trial settlement offer is rejected and the plaintiff ultimately secures a verdict less than the offer, then no attorneys fees are awarded for the time the attorney spent post offer. (again this is in 1983 actions, so it may not apply to the statute your working under)

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