We did a follow up earlier this week about a case we thought might result in a published opinion on the issue of restitution under the Unfair Competition Law for waiting time penalties. Although that case resulted in a postcard denial of the defendant's writ petition, there are at least two other cases currently before the Courts of Appeal dealing with this issue of waiting time penalties under Labor Code § 203 being recoverable as restitution under Business & Professions Code § 17203.
In Ayvazi v. Superior Court (Ralphs Grocery Co.) 2nd District, Case No. B208190, a petition for writ of mandate has been fully briefed. That case has temporarily stalled because
Division One is unable to proceed with the above entitled matter because Associate Justice Rothschild has recused herself, and there are two vacanices, leaving only one Justice in the division. The Standards and Guidelines for Judical Assignments promulgated by the Administrative Office of the Courts allow only one Justice Pro Tempore on a case. This situation has been reported to the Administrative Presiding Justice Roger W. Boren in accordance with California Rules of Court, 10.1004, subdivision (b) and (c) (4), 10.1008 and 10.1012.
Another case is pending in the First Appellate District. In Pineda v. Bank of America, Case No. A122022, the Court of Appeal will be considering that issue, along with an issue concerning the statute of limitations for waiting time penalties where the underlying wages are no longer part of the claims, as aprt of a review of an order on a motion for judgment on the pleadings.
This could create yet another conflict with McCoy v. Superior Court (Kimco) (2007) 157 Cal.App.4th 225 (review denied). The first case to disagree, Hoffman v. Uncle P Productions, LLC (2008) 2nd Appellate District, Case Number B198477, was never published.