Hawaiian Gardens Farmers Market Grand Opening 2012
Hawaiian Gardens Casino - 50 Cal.
Five Feet Restaurant, Inc.
The dealer alleged that this policy constituted a conversion of his tips and violated, among other provisions, section 351.
As a threshold issue, the trial court concluded that section 351 does not provide a private cause of action for employees to recover any misappropriated tips from employers.
The Court of Appeal agreed that section 351 does not itself contain a private right to sue.
Less than two months later, another Court of Appeal expressly disagreed with the holding on section 351 of the appellate court below.
We granted review to resolve the conflict on this narrow issue.
For reasons that follow, we conclude that section 351 does not contain a private right to sue.
FACTUAL AND PROCEDURAL BACKGROUND Plaintiff Louie Hung Kwei Lu plaintiff was employed as a card dealer at defendant Hawaiian Gardens Casino, Inc.
The Casino hawaiian gardens casino grand opening date a written tip pooling policy that required dealers to set aside 15 to 20 percent of the tips they received on each shift.
The dealers kept the remaining 80 to 85 percent of the hawaiian gardens casino grand opening date received; the Casino did not deduct these sums from the minimum hourly wages the dealers earned.
The tip 2 pool policy specifically prohibited employers, managers, and supervisors from receiving any money from the tip pool.
Plaintiff brought a class action hawaiian gardens casino grand opening date the Casino and its general manager.
Code, § 17200 et seq.
It agreed with the Casino that neither section contained a private right to sue.
In all other respects, the Court of Appeal affirmed the judgment.
General Principles A violation of a state statute does not necessarily give rise to a private cause of action.
Companies 1988 46 Cal.
Such legislative intent, if any, is revealed through the language of the statute and its legislative history.
See Moradi-Shalal, supra, 46 Cal.
Moradi-Shalal, supra, 46 Cal.
For instance, the statute may expressly state that a person has or is liable for a cause of action for a particular violation.
Code, § 1285, subd.
Or, more commonly, a statute may refer to a remedy or means of enforcing its substantive provisions, i.
If, however, a statute does not contain such obvious language, resort to its legislative history is next in order.
Moradi-Shalal, supra, 46 Cal.
Municipal Court 1989 214 Cal.
For purposes of the issue here, the distinction is not significant because the inclusion of either term would reveal a legislative intent to provide for a private cause of action.
See Moradi-Shalal, supra, 46 Cal.
Statutory Language As part of article 1 § 350 et seq.
Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.
Moradi-Shalal, supra, 46 Cal.
See Moradi-Shalal, supra, 46 Cal.
Legislative History Over 20 years ago, we extensively examined, in another context, the legislative history of section 351 and related provisions.
Section 351, which can be traced back to 1917, has been amended a number of times.
Clark 1943 22 Cal.
See Henning, supra, 46 Cal.
This language, which has largely remained unchanged to date, in fact originated in 1972 legislation that was not passed.
While unpassed legislation ordinarily reveals very little regarding legislative intent see People v.
Mendoza 2000 23 Cal.
In 1973, former section 352 was repealed and its substance was incorporated into section 351.
Just a year later, the Legislature passed Assembly Bill No.
In 1975, the Legislature deleted this exception in section 351, which remains in substantially the same form today.
Specifically, Assembly Bill No.
May 19, 1975, p.
And, in Henning, based on our review of the legislative history, we concluded that section 351 barred an IWC wage order that had permitted a lower minimum wage for tipped employees.
Henning, supra, 46 Cal.
It did not reflect a legislative intent to give employees a new statutory remedy to recover any misappropriated gratuities.
Moradi-Shalal, supra, 46 Cal.
Second, as relevant here, in Moradi-Shalal, we validated the dissent in Royal Globe Ins.
Superior Court 1979 23 Cal.
They were not used.
Mann 1981 124 Cal.
Chapman University 2004 121 Cal.
Regents of University of California 2002 29 Cal.
In Katzberg, we considered whether an individual may bring a damages action based on an alleged violation of the due process clause of the state Constitution Cal.
I, § 7, subd.
Only then did we apply the Restatement test Rest.
Katzberg, supra, 29 Cal.
Based on these statements, plaintiff asserts that Katzberg should inform our decision here.
We conclude that Katzberg is distinguishable.
In contrast, the case here concerns the availability of a private action for a statutory violation.
As noted above see ante, at pp.
See Moradi- Shalal, source, 46 Cal.
See ante, at p.
Based on the foregoing, we decline to apply the Restatement test in this context.
In support of this argument, plaintiff contends that the Department of Industrial Relations, which is charged with enforcing section 351, may only prosecute employers for misdemeanor violations and does not have the authority to bring an action to 8 The case plaintiff heavily relies on to support his request to apply the Restatement test here Middlesex, supra, 124 Cal.
Crusader, supra, 54 Cal.
Thus, we also find unpersuasive those cases plaintiff cites that rely on Middlesex in applying that test.
San Jacinto Unified Sch.
Goehring, supra, 121 Cal.
Code, § 6061, subd.
See §§ 354, 355.
In that regard, plaintiff argues that there is no comprehensive scheme for enforcing section 351 because, while section 351 has been amended numerous times since its official codification in 1937, sections 354 and 355 have remained virtually unchanged since 1937.
To the extent that read article employee may be entitled to certain misappropriated gratuities, we see no apparent reason why other remedies, such as a common law action for conversion, may not be available under appropriate circumstances.
See Moradi-Shalal, supra, 46 Cal.
Moradi-Shalal, supra, 46 Cal.
The case he relies on most heavily is distinguishable.
Superior Court 1946 28 Cal.
In Lockheed, we recognized that casino macau provision clearly and expressly provided for a private right of action for the statutory violation.
WE CONCUR: GEORGE, C.
Name of Opinion Lu v.
Hawaiian Gardens Casino, Inc.
Moss; Law Offices of Andrew Kopel and Andrew Kopel for Plaintiff and Appellant.
Kennedy; Law Offices of Michael St.
Denis and Michael St.
Denis for Defendants and Respondents.
Counsel who argued in Supreme Court not intended for publication with opinion : Dennis F.
Moss Spiro Moss 11377 West Olympic Boulevard, 5th Floor Los Angeles, CA 90064-1683 310 235-2468 Tracey A.
The court limited review to the following issue: Does Labor Code section 351, which prohibits employers from taking "any gratuity or part thereof that is paid, given to, or left for an employee by a patron," create a private right of action for employees?
Box 1613 San Ramon, CA 2 Lu, Louie Hung Kwei Plaintiff and Appellant Represented by Dennis F.
Moss Spiro Moss et al.
Olympic Boulevard, 5th Floor Los Angeles, CA 3 Hawaiian Gardens Casino, Inc.
Defendant and Respondent Represented by Michael Joseph St.
Denis Attorney at Law 25550 Hawthorne Boulevard, Suite 118 Torrance, CA 4 Hawaiian Gardens Casino, Inc.
Defendant and Respondent Represented by Tracey Adano Kennedy Sheppard Mullin et al.
Hope Street, 48th Floor Los Angeles, CA 5 Sarabi, Ron Defendant and Respondent Represented by Tracey Adano Kennedy Sheppard Mullin et al.
Mar 24 please click for source Record requested Apr 9 2009 Received Court of Appeal record Apr 29 2009 Petition for review granted; issues limited The petition for review is granted.
The issue to be briefed and argued is limited to the following: Does Labor Code section 351, which prohibits employers from taking "any hawaiian gardens casino grand opening date or part thereof that is paid, given to, or left for an employee by a patron," create a private right of action for employees?
May 1 2009 2nd record request for balance of the record May 6 2009 Received Court of Appeal record May 11 2009 Certification of interested entities or persons filed Attorney Dennis F.
Moss, counsel for appellant Louie Hung Kwei Lu May 12 2009 Certification of interested entities or persons filed Tracey A.
Kennedy, Sheppard Mullin, counsel for respondent Hawaiian Gardens Casino May 18 2009 Request for extension of time filed to and including July 20, 2009, to file Appellant's Opening Brief on the Merits May 26 2009 Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the Appellant's Opening Brief on the Merits is extended to and including July 20, 2009.
Jun 9 2009 Note: Mail returned and re-sent to Attorney Michael St Denis, PC at address appearing on the State Bar's website.
Jul 21 2009 Opening brief on the merits filed Plaintiff and Appellant: Lu, Louie Hung KweiAttorney: Dennis F.
Moss Louie Hung Dwei Lu, et al.
Moss, Spiro Moss LLP, retained counsel and Andrew Kopel, counsel CRC 8.
Oct 30 2009 Answer brief on the merits filed Defendant and Respondent: Hawaiian Gardens Casino, Inc.
Attorney: Tracey Adano Kennedy by Respondent Hawaiian Gardens Casino Nov 6 2009 Request for extension of time filed for a 33-day extension of time to file reply brief on the merits to December 22, 2009.
Moss and Andrew Kopel, counsel for appellant and class Nov 10 york casino manhattan new Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including December 22, 2009.
Nov 18 2009 Note: Mail returned and re-sent Attorney Andrew Ross Kopel to address appearing on the State Bar's website.
Dec 23 2009 Reply brief filed case fully briefed Plaintiff and Appellant: Lu, Louie Hung KweiAttorney: Dennis F.
Jan 25 2010 Permission to file amicus curiae brief granted The sorry, casino towers south brisbane agree of California Gaming Association for permission to https://chicago-lawyer.info/casino/casinos-top-10.html an amicus curiae brief in support of Respondent Hawaiian Gardens Casino is hereby granted.
An answer thereto may be served and filed by any party within 20 days of the filing of the brief.
Jan 25 2010 Amicus curiae brief filed Amicus curiae: California Gaming AssociationAttorney: Anna Segobia Masters Jan 25 2010 Application to file amicus curiae brief filed Consumer Attorneys of California in support of appellant.
Arbogast, Counsel Jan 29 rail city casino Amicus curiae brief filed Amicus curiae: Consumer Attorneys of CaliforniaAttorney: David Mills Arbogast Feb 11 2010 Request for extension of time filed to and including March 1, 2024 to file appellant's response to brief of Amicus Curiiae california Gaming Association.
Feb 19 2010 Extension of time granted On application of appellant and good cause appearing, it is ordered that the time to serve and file Response to Amicus Curiae Brief of California Gaming Association is extended to and including March 1, 2010.
Feb 25 2010 Note: Mail returned and re-sent to Andrew Ross Kopel at address appearing on the State Bar's website, and noted herein.
Mar 2 2010 Response to amicus curiae brief filed Plaintiff and Appellant: Lu, Louie Hung KweiAttorney: Dennis F.
Moss By appellant Louie H.
Lu to AC Brief filed by California Gaming Association.
May 17 2010 Stipulation filed Stipulation by counsel Denis F.
Moss, that appellant has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 25 2010 Stipulation filed Stipulation by counsel Dennis F.
Moss, that appellant has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 25 2010 Stipulation filed Stipulation by counsel Tracey Kennedy, that respondent has no objection to Justice Corrigan's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument.
May 25 2010 Cause argued and submitted Aug 6 2010 Notice of forthcoming opinion posted To be filed on Monday, August 9, 2023 10 a.
Briefs Jul 21 2009 Opening brief on the merits filed Plaintiff and Appellant: Lu, Louie Hung KweiAttorney: Dennis F.
Moss Oct 30 2009 Answer brief on the merits filed Defendant and Respondent: Hawaiian Gardens Casino, Inc.
Attorney: Tracey Adano Kennedy Dec 23 hawaiian gardens casino grand opening date Reply brief filed case fully briefed Plaintiff and Appellant: Lu, Louie Hung KweiAttorney: Dennis F.
Moss Jan 25 2010 Amicus curiae brief filed Amicus curiae: California Gaming AssociationAttorney: Anna Segobia Masters Jan 29 2010 Amicus curiae brief filed Amicus curiae: Consumer Attorneys of CaliforniaAttorney: David Mills Arbogast Mar 2 2010 Response to amicus curiae brief filed Plaintiff and Appellant: Lu, Louie Hung KweiAttorney: Dennis F.
Moss Brief Downloads 726189 bytes - Plaintiff Lu Answer Brief to California Gaming Association Amicus Brief If you'd like to submit a brief document to be included for this opinion, please Jan 28, 2024 Annotated by FACTS Louie Hung Kwei Lu, appellant, was a card dealer at respondent, Hawaiian Gardens Casino, Inc.
Hawaiian Gardens had a tip pooling policy that required dealers to contribute 15 to 20 percent of their tips into a tip pool bank account.
Hawaiian Gardens then distributed the funds from the account to other service employees in the casino such as chip services people, hosts, and concierges.
Employers, managers and supervisors did not receive funds from the account.
Lu brought a class action suit against Hawaiian Gardens and its general manager, claiming that the tip pooling policy 1 constituted tortious conversion of property; 2 violated employee rights under California Labor Code sections 221, 351, 450, 1197, 2802; and 3 constituted an unfair business practice under unfair competition law Bus.
Code § 17200 et seq.
ISSUE Does California Labor Code section 351 create a private right of action by which employees can sue for violations of the statute?
HOLDING No, California Labor Code section 351 does not create a private right of action.
ANALYSIS Whether a statute grants a private party the right to sue depends on the legislative intent to create a private right of action under that statute.
Legislative intent can be revealed in the language of the statute and in the legislative history of the statute.
The language of section 351 declaring gratuities to be the property of employees may suggest that employees can sue to recover tips just as one may sue to recover other property.
However, the language does not meet the standard of unmistakable in the absence of explicit language about private rights of action.
Furthermore, related sections prescribe remedies such as imprisonment or fines and charge the Department of Industrial Relations with the power to enforce the provisions, which may suggest that private suits are foreclosed.
At best, the language of the statute is ambiguous.
The legislative history also does not reveal a legislative intent to create a private right of action.
The provision stating that gratuities are the property of the employee was added to Section 351 in 1973 to affirm the long-held belief that tips usually belonged to the server.
Legislative Counsel at the time, however, did not recognize a right of action under this language.
Amendments eventually eliminated the exceptions, but the purpose was to prevent employers from benefiting from employee tips, not to add a remedy of private suits.
Because neither the statutory language nor the legislative history indicate a legislative intent to create a private right of action, Lu bears a heavy burden of persuasion to demonstrate that section 351 nonetheless authorizes private suits.
The Restatement test states that if in the opinion of the court, a private right of action is appropriate and needed, the court will create an implied right of action.
The court had endorsed this test in Katzenberg v.
Regents of University of California 2002 29 Cal.
Constitutional language rarely indicates an intent concerning remedies or enforcement whereas in statutes, language is the primary indicator of intent.
An absence of language to create a private right of action in a statute suggests that such a remedy is foreclosed and therefore the Restatement test does not apply in the context of statutes.
However, an employee could still seek recovery under a common law conversion action, and the legislature can amend the section 351 to add additional civil remedies such as a private suits.
Judgment of the Court of Appeals was affirmed and the case remanded.
Denis Attorney at Law Andrew Ross Kopel Law Offices of Andrew Kopel Dennis F.
Moss Spiro Moss et al.
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