January 31, 2013

Article explores recent orders of depublication in wage-and-hour cases

In yesterday’s Daily Journal [subscription required], Laura Hautala explored the Court’s recent depublication of three Second District appellate opinions (all from the same division). As we noted here, all three applied the Supreme Court’s recent landmark wage-and-hour decision, Brinker Restaurant Corp v. Superior Court. Because the Court does not explain its reasons for depublication, attorneys have come to differing conclusions about what those reasons might be. Some plaintiffs’-side employment lawyers have claimed the opinions were depublished because they were at odds with Brinker (see the UCL Practitioner’s post for an example of this perspective). But others have cautioned that one cannot read too much into a depublication order, and have suggested that the opinions may have been depublished simply because the Court believed they would engender confusion in some way. (See Cal. Rules of Court, rule 8.1125(d) [“A Supreme Court order to depublish is not an expression of the court’s opinion of the correctness of the result of the decision or of any law stated in the opinion”].) Hautala notes that attorneys on all sides agree the Court may have acted simply to allow Brinker more time to “percolate” through the courts.

Perhaps the most interesting perspective offered in the article is the insider’s view of retired Justice Carlos Moreno, who is quoted as saying the Court typically depublishes decisions that are “‘really off the mark’” in that they are inconsistent with the Supreme Court’s own precedent. But he also suggested that here the Court might simply be “‘waiting for a pattern to emerge.’” In any case, Justice Moreno observed that ordering depublication rather than granting review “‘really leaves a lot of questions unanswered.’”

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