Second Appellate District, Division Eight, not interested in changing opinions post-Brinker

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After the Supreme Court decided Brinker Restaurant Corp. v. Superior Court, 53 Cal. 4th 1004 (2012), a number of cases were remanded to Courts of Appeal for further consideration after Petition grant and hold Orders were issued in those cases.  The Second Appellate District, Division Eight, seems to have a disproportionate share of those cases.  And, generally speaking, Division Eight concluded that Brinker didn't require any change in its analyses:

  • In re Lamps Plus Overtime Cases, 209 Cal. App. 4th 35 (2012)
  • Hernandez v. Chipotle Mexican Grill, Inc., 208 Cal. App. 4th 1487 (2012), as modified (Sept. 25, 2012)
  • Tien v. Tenet Healthcare Corporation (October 4, 2012)

In all fairness to Division Eight, the other Courts of Appeal didn't seem to think that, even though Brinker declared a somewhat different standard than that applied by many Courts of Appeal, the clarified standard, according to the Courts of Appeal, didn't require any material modification to their prior opinions.  Go figure.

Interestingly, the same Division Eight, which never met a meal period it liked, partially reversed a denial of class certification in an unpublished decision, Santos v. Vitas Healthcare Corp. of California, Case No. B222645, 2012 WL 4378175 (Sept. 26, 2012).  The Court relied heavily on Brinker for its discussion of an employer's obligation to pay employees when it knows, or has reason to know, that employees are working overtime or off-the-clock.  Hmmmm.

Brinker Analysis: California still protects employees

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The California Supreme Court has been consistent in its recognition that California law protects employees as part of a fundamental policy of the state of California. For instance, in Sav-On, the California Supreme Court observed that “California’s overtime laws are remedial and are to be construed so as to promote employee protection.” More recently, in an easily overlooked opinion in the matter of Brinker Restaurant Corporation, et al. v. Superior Court (Hohnbaum) (April 12, 2012), the California Supreme Court began its opinion by observing, “For the better part of a century, California law has guaranteed to employees wage and hour protection, including meal and rest periods intended to ameliorate the consequences of long hours.” At this point, it should be clear that, at least to some degree, Brinker will be consistent with the Court’s employee-protective view of California law. Brinker is long and complex. The unanimous opinion is 54 pages long, and Justice Werdegar offered an additional concurring opinion about four pages long to offer further guidance on the certification issue remanded for further consideration.
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An ode to Brinker...

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Shall I compare Brinker to a business game?

It is more wordy and more moderate.

Harsh plans do fill the corporate coffer’s shame,

And employee rights make each boss irate.

Sometime too harsh the HR bigwig whines,

And often is their open access dimmed;

And every job from fair sometime declines,

By chance, or nature's changing course, untrimmed;

But Brinker’s sharp protections shall not fade,

Nor lose possession of those rights each ow'st,

Nor shall corporations dwarf Brinker in their shade,

When in eternal lines to Time Brinker grow'st.

So long as the employee works, and eyes can see,

So long lives Brinker, and Brinker protects the employee.

Breaking News: Brinker opinion now available

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With traffic to the California Courts website so heavy that a temporary mirror site was added, the long wait for the Brinker opinion in now over.  I can't write extensive comments now, but a quick skim suggests to me that the opinion falls somewhere in the middle of what the respective sides hoped to see happen.

Breaking News: Brinker decision to be released tomorrow

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The Supreme Court has just released a Notice of Forthcoming Filing, indicating that the Brinker opinion will be published tomorrow.  Stay tuned for the insanity...

California Supreme Court activity for the week of December 12, 2011 [with Brinker Bonus!]

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The California Supreme Court held its (usually) weekly conference on December 14, 2011.  Notable results include:

  • Brinker news!  The submission of the matter is vacated and additional briefing is requested.  Wait. You thought that a decision was imminent after oral argument?  So precious!  This is BRINKER we are talking about.  Your children will be writing supplemental briefs for this decision.  The California legislature will have withdrawn and re-enacted an entire Labor Code before a decision is rendered (at which point it will again be vacated for briefing on the impact of changed law retroactively).
The downside of this news is that I will need to create a 2012 edition of my Brinker News graphics.

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.

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.

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.

Wait for Brinker continues

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The California Supreme Court released its oral argument calendar for March 8th and 9th.  Still no sign of Brinker.  But it was a great excuse to use the Brinker 2009/2010/2011 news alert icon.