People v. Hing Kwee

Opinion

RICHLI, J.

Joseph Caprai, an employee of appellant Southern California Permanente Medical Group (employer), was seated as a juror in the case People v. Kwee (Super. Ct. San Bernardino County, 1994, No. RCR-21654). After Caprai was seated as a juror, he discovered that the employer’s jury duty policy was to pay him only for those days he actually served as a juror. Juror Caprai complained to the court that the employer was going to require him to work as normally scheduled on every other weekend, or require him to use vacation days or unpaid time off if he wished to have a weekend day off on the weekends he was normally scheduled to work. The court ordered the employer to excuse Juror Caprai from weekend work and to nevertheless pay Caprai for those weekend days he did not work. The employer appeals from the order of February 17, 1994. We reverse.

Discussion

The order requiring the employer to both excuse Juror Caprai from weekend work and to compensate him for the excused weekend days not only determines the rights of the parties on the issue, it also directs the employer to pay money and/or to perform a particular act. The order is appealable as a final order on a collateral issue.

(Sjoberg

v.

Hastorf

(1948) 33 Cal.2d 116 [199 P.2d 668].)

The court justified its order based on Labor Code section 230, subdivision (a), governing an employer’s treatment of an employee serving jury duty, and on Code of Civil Procedure section 128, subdivision (a)(5), on the ground that the court had inherent power to assure a fair trial. Neither section justifies the court’s order, which was beyond the court’s jurisdiction.

Labor Code section 230 provides in relevant part: “(a) No employer shall discharge or in any manner discriminate against an employee for taking time

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off to serve as required by law on an inquest jury or trial jury, if such employee, prior to taking such time off, gives reasonable notice to the employer that he is required to serve. . . . [H . . . [H (c) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of such employment by his employer because such employee has taken time off to serve on an inquest or trial jury . . . shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by such acts of the employer. Any employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for such rehiring or promotion by a grievance procedure, arbitration, or hearing authorized by law, is guilty of a misdemeanor.”