California Labor &
Employment Law Blog
Nov. 12 2007

In an Unusual Move, Unpublished Brinker Decision Regarding Class Certification/Meal And Rest Break Claims Vacated And Transferred Back to Court of Appeal For Reconsideration.

Topics: Court Decisions, Wage & Hour Issues

The recent Court of Appeal decision in Brinker Restaurant Corp. v. Superior Court, discussed in our October 23, 2007 posting, has gone from being merely an unpublished opinion to being vacated and transferred backfor reconsiderationfollowing a petition for review to the California Supreme Court.

Specifically, at the request of the appellate court, the California Supreme Court -- in a highly unusual move -- granted reviewand thentransferred the case back to the Court of Appeal to be reconsidered, at which point the parties may submit additional briefing (although briefing is limited todiscussion of any issues that could have been raised in a petition for rehearing). According to the California Supreme Court's docket, review was granted on the appellate court's own motion, the cause was transferred back to the Court of Appeal, and the petition for review and requests for publication were both denied as moot.

A relevant excerpt from the Court of Appeal docket explained: ". . . [t]his court requested that the California Supreme Court grant review and transfer the matter back to this court based upon the fact that the disposition in the original opinion stated that it was 'final as to this court immediately,' and the fact that statement was a clerical error. In an order dated October 31, 2007, the Supreme Court did so, ordering that this court 'vacate its opinion and reconsider the matter as it sees fit.' Therefore, the real parties in interest's supplemental letter brief, and any response thereto, shall be limited to a discussion of any issues that could have been raised in a petition for rehearing had the decision not become final immediately upon its issuance. This supplemental letter brief should be filed on or before Monday, December 17, 2007."

The open question is whether the "reconsidered" opinion will include any new or changed substantive discussion on the meal and rest break and class certification issues.In the meantime, employersmust wait for further developments in this potentially critical decision.

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For over 25 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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