Nishiki v. Danko Meredith, APC

Citation25 Cal.App.5th 883,236 Cal.Rptr.3d 626
Decision Date01 August 2018
Docket NumberA147733
CourtCalifornia Court of Appeals Court of Appeals
Parties Taryn NISHIKI, Plaintiff and Respondent, v. DANKO MEREDITH, APC, Defendant and Appellant.

Law Offices of David Lyon and David E. Lyon, Emeryville, for Plaintiff and Respondent.

Law Office of Gary L. Simms and Gary L. Simms, Redwood City, for Defendant and Appellant.

Schulman, J.*

When 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 date 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.)

Taryn 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.


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 27Thanksgiving 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 check 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 check, 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.

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 business—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.)

The construction of section 202 Nishiki urges, under which the time begins to run as soon as she submits her resignation, regardless of whether her employer actually receives the notice of resignation, falls afoul of this rule. There is no evidence her employers were working or reading their business email after business hours on Friday, November 14, and thus no basis to conclude they actually received her resignation on that date. If Nishiki's position is correct, her accrued wages were due on Monday, May 18—the first business day after her after-hours email. The result would be that, rather than having 72 hours to calculate and pay Nishiki's wages, defendant might have only the length of a single work day.3 This result contravenes the statute's clear intent to provide an employer a reasonable time to pay an employee who quits without notice.4

We conclude, therefore, that the 72 hours did not begin to run when Nishiki sent her email. We need not decide whether it commenced on Saturday, November 15, by which time defendant's bookkeeper had read her resignation email, or at the start of business on Monday, November 17. Based on either of these dates, the November 18, 2014 check was timely.

As we have discussed, however, the amount stated in numerals on the check was correct, but the amount as written out in words was eighty dollars less than the amount owed to Nishiki. Defendant contends the evidence shows that the discrepancy in the check was not willful for purposes of section 203, and therefore argues waiting time penalties are unwarranted.

"The purpose of section 203 is to compel the prompt payment of earned wages; the section is to be given a reasonable but strict construction. [Citation.] ... [The] statute should have reasonable construction. Its design is to protect the employee and to promote the welfare of the community .... But it is to be observed that the most formidable objection to the statute derives its principal force from the supposed hardships of a hypothetical case wherein the employer is without fault or the employee is guilty of culpable conduct. The statute ... contemplates that the penalty shall be enforced against an employer who is at fault. It must be shown that he owes the debt and refuses to pay it. He is not denied any legal defense to the validity of the claim.’ [¶] However, to be at fault within the meaning of the statute, the employer's refusal to pay need not be based on a deliberate evil purpose to defraud [employees] of wages which the employer knows to be due. As used in section 203, ‘willful’ merely means that the employer intentionally failed or refused to perform an act which was required to be done ." ( Barnhill v. Robert Saunders & Co. (1981) 125 Cal.App.3d 1, 7, 177 Cal.Rptr. 803.) Similarly, in Davis v. Morris (1940) 37 Cal.App.2d 269, 274, 99 P.2d 345 ( Davis ), the court explained, " ‘In civil cases the word "willful" as ordinarily used in courts of law, does not necessarily imply anything blameable, or any malice or wrong toward the other party, or perverseness or moral delinquency, but merely that the thing done or omitted to be done, was done or omitted intentionally. It amounts to nothing more than this: "That the person knows what he is doing, intends to do what he is doing, and is a free agent." "

Applying this principle, the Court of Appeal in ...

To continue reading

Request your trial
27 cases
  • Seviour-Iloff v. LaPaille
    • United States
    • California Court of Appeals Court of Appeals
    • June 28, 2022
    ...36, 54, 155 Cal.Rptr.3d 18.) At issue is whether this amount must include plaintiffs’ free rent.In Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 236 Cal.Rptr.3d 626, the employer underpaid a former employee by $80 and subsequently delayed in paying the employee that amount. ( Id......
  • Cardinal Care Mgmt., LLC v. Afable
    • United States
    • California Court of Appeals Court of Appeals
    • April 20, 2020
    ...the commissioner’s decision’ [citation] and to ‘discourag[e] unmeritorious appeals of wage claims’ " ( Nishiki v. Danko Meredith, P.C. (2018) 25 Cal.App.5th 883, 894, 236 Cal.Rptr.3d 626, italics omitted; accord Lolley v. Campbell (2002) 28 Cal.4th 367, 376, 121 Cal.Rptr.2d 571, 48 P.3d 112......
  • Woodworth v. Loma Linda Univ. Med. Ctr.
    • United States
    • California Court of Appeals Court of Appeals
    • July 24, 2023
    ...13520.) A failure to pay that is inadvertent or a mistake is not "'willful'" for these purposes. (Nishiki v. Danko Meredith, APC (2018) 25 Cal.App.5th 883, 892.) Also, "a good faith dispute that any wages are due will preclude imposition of waiting time penalties." (Cal. Code Regs., tit. 8,......
  • Jaime Zepeda Labor Contracting, Inc. v. Dep't of Indus. Relations
    • United States
    • California Court of Appeals Court of Appeals
    • August 12, 2021
    ...In contrast, "[t]he purpose of section 203 is to compel the prompt payment of earned wages.’ " (Nishiki v. Danko Meredith, P.C. (2018) 25 Cal.App.5th 883, 891, 236 Cal.Rptr.3d 626.)36 The Division argues that the Legislature's expansion of minimum wage remedies for workers in statutes enact......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT