July 21, 2011

Brinker Brinksmanship?

Tuesday’s Daily Journal article by Laura Ernde [“Employment lawyers continue to wait for Brinker decision”; subscription required] notes that some have expressed consternation over the fact that the California Supreme Court has not yet scheduled oral argument in the Brinker Restaurant v. Superior Court case, even though briefing on the merits was completed in July 2009. Of course, the resignation of Chief Justice Ron George last fall and his replacement by Tani Cantil-Sakauye may have slowed progress a bit, given how embroiled our new chief has been in administrative dramas. Moreover, the court is down one member since the resignation of Justice Carlos Moreno in March. Finally, Brinker is a complicated and important case, in which numerous amicus briefs have been filed. From our point of view, we agree with attorney Kim Kralowec, who is quoted in the article as saying it’s better that the court take the time it needs to get it right, rather than rushing to a decision.

In the meantime, the California Supreme Court granted review this week in another case that involved meal and rest break claims—In re Lamp Plus Overtime Cases—and, as the court has done in the past with similar cases, the court will hold Lamp Plus pending its resolution of Brinker. Contrary to a suggestion by one lawyer quoted in the Daily Journal write-up, there’s nothing unusual or improper about appellate courts issuing their decisions in the ordinary course of business, rather than keeping litigants on ice in anticipation of the Brinker decision. That is routine (as evidenced by the many Prop 64 cases that were handed down while Californians for Disability Rights v Meryvn’s was pending). Instead of waiting in limbo, litigants who receive their appellate ruling can make an informed decision concerning whether the Brinker outcome really will be dispositive in light of how the intermediate appellate court approached the issues, and whether their interests are better served by accepting the appellate ruling or compromising, in lieu of seeking a “grant and hold” order to take their case up while Brinker is pending. It seems more appropriate for the parties to make that call, rather than the Court of Appeal effectively making it for them by delaying their work on an appeal that is ripe for decision.

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