Richard J. Simmons

For Simmons, known as a guru of California wage and hour law, his victory at the state Supreme Court in 2018 was more than a successful appearance in the only employment law case to end in a defense win at the high court that year.

It also represented vindication in an odd feud with a state appellate justice that developed earlier in the litigation when Simmons argued the matter at the 4th District Court of Appeal.

It was a painful moment as he and Justice David A. Thompson clashed during Simmons' effort to persuade the panel to retain a longstanding Industrial Welfare Commission rule that let hospital workers on 12-hour shifts waive one otherwise mandatory meal break to avoid 30 minutes of unpaid work. It was a critical issue to the hospital industry.

"Even the unions supported our position," he said.

Simmons is a frequent lecturer who habitually holds in his hand two pens, one red, one blue, to make multicolored notes as he talks. At the oral argument session before the Court of Appeal panel, Thompson accused him of using the pens to point in his direction and ordered Simmons to stop it.

The appellate panel reversed a favorable trial court outcome, basing their ruling, Simmons said, on an unreasonable interpretation of the welfare commission's authority.

The state Supreme Court in 2017 told the appellate panel to reconsider in view of intervening legislation. Thompson and colleagues this time saw things differently. "Upon reconsideration, it appears we erred," wrote Thompson.

The other side petitioned for review and Simmons again took the matter to the Supreme Court. Gerard v. Orange Coast Memorial Medical Center, S241655 (State Supreme Ct., filed Dec. 10, 2018).

Simmons said he appeared at the high court lectern with red and blue pens in hand as usual, without incident.

"I took them on a tour of the history of the Industrial Welfare Commission. I was one of the only lawyers who could have done it," Simmons said. The court ruled 7-0 in his favor. "It was a great experience and I loved it."

After the high court argument, his opposing counsel extended his hand.

"He wanted to shake, but that's not my thing," Simmons said. "I'm a passionate guy about my cases, and civility is not my highest goal. The result for my client is what counts. But no, I didn't recoil or actually pull away. We shook, but I wasn't enthusiastic."

-- John Roemer