Oral argument comes and goes in Brinker; many prognosticators see a Court rejecting the "ensure" standard

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Oral argument was finally held in Brinker last week.  Wagering on appellate court outcomes after listening to oral arguments is not a smart use of gambling funds in most instances, and it seems dangerous here as well.  But most assessments of the argument seem to agree on two things.  First, the consensus is that the Justices appeared to direct a more critical set of questions to plaintiffs' counsel, Kimberly Kralowec, on the issue of whether employers must "ensure" that meal periods are taken, rather than simply "provide" employees with an opportunity to take a meal period.  Second, on the issue of when a meal must occur, at least Justice Liu appeared to take exception with an interpretation that would allow an employer to schedule meal period after more than five hours of work.

Here are a few examples of coverage of or opinions about the oral argument:

In something approximating 90 days we will finally know the answer to this great mystery.

Remand of Sonic-Calabasas A, Inc. v. Moreno may provide more guidance on status of arbitration defenses in California

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On Monday, October 31, 2011 (hello, Halloween), the United States Supreme Court issued the following Order:

10-1450 SONIC-CALABASAS A, INC. V. MORENO, FRANK The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Supreme Court of California for further consideration in light of AT&T Mobility LLC v. Concepcion, 563 U.S. ___ (2011).

In Sonic Calabasas A, Inc. v. Moreno (2011), reported at 51 Cal. 4th 659, a divided California Supreme Court (4-3) concluded that (1) "Berman" hearings are an unwaivable statutory right, (2) arbitration is an acceptable alternative to de novo review by the Superior Court, (3) a waiver of the right to a "Berman" hearing before the Labor Commissioner is against public policy, and (4) the waiver of a "Berman" hearing is unconscionable under standard contractual principles of unconscionability analysis.

What does this mean?  It means that the underpinnigs of Gentry may be explored in the follow-up opinion.  It also means that the new Justices, including the new Chief Justice of the California Supreme Court, may be deciding votes, given that Chief Justice George was in the majority and Justice Moreno authored the original opinion. 

BOOM! Brinker goes on Supreme Court's calendar for November; nobody cares after Concepcion stole all the oxygen

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There we have it.  Brinker is set for argument on Tuesday, November 8, 2011, at 9:00 a.m., in San Francisco.  I have to wonder if this will amount to less of a bombshell now that the class action practitioners of the world are intensely focused on how Concepcion will impact wage & hour class actions generally.  But we've waited so long for answers to the many questions raised by Brinker that we deserve an answer.  Thank goodness I don't have to make a Brinker-Watch 2012 graphic.

If you thought that Court under-funding in California was unconstitutional last year.... "Whoa, Nelly!"

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According to press reports, the legislature's court budget cuts of $150 million for operations and $310 million in court construction funding have increased after Governor Jerry Brown used line item veto power to slash another $22 million from California trial court operations and security.  Underfunding at this level is unconstitutional.  The judiciary is a co-equal, constitutional branch of government.  It cannot function correctly at this funding level.  The Legislature and Governor do not suffer equivalent operational impairment from the budget cuts they impose elsewhere.  Only the judicial branch must suplicate, hat in hand, for enough money to do the people's work.

The past three years account for a 30% general funding cut for California's Courts.  I don't think their obligations decreased by 30%.  If anything, a difficult economy creates more litigation events.

I wrote about this previously here and copied a Daily Journal article on the subject here.

California Supreme Court activity for the week of May 16, 2011

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The California Supreme Court held its (usually) weekly conference on May 18, 2011.  Notable results include:

  • As has been the practice in all prior published cases on this issue, on a petition for review, review was granted, and the matter held, in Tien v. Tenet Healthcare (February 16, 2011) (affirmed the trial court's order denying class certification of meal period, rest break, and waiting time penalty claims). The opinion spent a substantial amount of time discussing the meal period compliance question under review in Brinker.

California Supreme Court activity for the week of May 9, 2011

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The California Supreme Court held its (usually) weekly conference on May 11, 2011.  Notable results include:

  • On a petition for review, review was granted, and the matter held, in United Parcel Service Wage And Hour Cases (February 24, 2011) (fees not available to defendant prevailing on Labor Code section 226.7 claims), covered previously on this blog here.  Review was previously granted in a case addressing this issue: Kirby v. Immoos Fire Protection, Inc. (July 27, 2010).
  • On a petition for review, review was denied in Price v. Starbucks Corporation (February 17, 2011).

Supreme Court activity for the week of April 25, 2011

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The California Supreme Court held its (usually) weekly conference on April 27, 2011.  Notable results include:

  • On a petition for review, review was denied in Arechiga v. Dolores Press, Inc. (February 7, 2011) (construing Labor Code section 515(d)), covered previously here.
  • On a petition for review, review was denied in Safaie v. Jacuzzi Whirlpool Bath, Inc. (February 22, 2011) (death knell doctrine), covered previously here.
  • On a petition for review, review was denied in Kullar v. Foot Locker Retail, Inc. (January 18, 2011) (disqualification issues), covered previously here.

Overall, a rough day in the land of class actions.

Supreme Court activity for the week of April 18, 2011

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The California Supreme Court held its (usually) weekly conference on April 20, 2011.  Notable results include:

  • On a petition for review, review was denied in MKJA, Inc. v. 123 Fit Franchising, LLC (January 4, 2011) (arbitration issues), covered previously on this blog here.
  • On a petition for review, review was denied in Telscape Communications v. Superior Court (Gallardo) (March 7, 2011)

California Courts website may be redirecting to new site now

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I just attempted to view www.courtinfo.ca.gov and was redirected to www.courts.ca.gov.  It is possible that dns setting are being updated now.  However, opinions are still displaying from courtinfo.ca.gov, so I don't know what will happen when the full transition is completed.  If everything at courtinfo.ca.gov redirects to courts.ca.gov, links on this site to slip opininos may end up broken.  But you weren't relying on slip opnions for more than a few weeks at most, were you?

California courts website is changing to a new web address, with a new appearance, in April

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California's statewide court information website is currently located at www.courtinfo.ca.gov.  On April 2, 2011 the site will change over to www.courts.ca.gov.  The new site is evidently live now, but I am guessing that curiosity is impacting the new site's performance.  It is loading for me, but at a painfully slow rate (as in minutes, not seconds).  From what little I can see, it looks nice.

What this means is that all links to the old site location may (will) break, including this blog's links to opinions and other resources.  Assuming the new site starts responding correctly, I will begin linking to the new location immediately.

Perhaps this means that we are getting closer to the statewide court management system that caused such intense discussion in the last couple of years.  I saw a demonstration of the system last year.  If it works as advertised, it should prove to be a very useful resource.  Imagine being able to log onto one system and see all of your upcoming appearances in any court in California.  One can hope.