November 5, 2010
Rule 8.512(d)(2) of the California Rules of Court provides that “[o]n or after granting review, the court may order action in the matter deferred until the court disposes of another matter or pending further order of the court.” This rule permits the California Supreme Court to exercise one of its often used, but rarely discussed, powers: the grant-and-hold. As the rule states, the Court can grant review and defer briefing while it considers and decides another case raising the same issue.
Typically, once the lead case is decided, a case that has been granted and held is transferred back to the Court of Appeal for further proceedings consistent with the Supreme Court’s opinion in the lead case. However, the Court might not transfer back the “hold” cases. If a Court of Appeal opinion is consistent with the Supreme Court’s opinion in the lead case, the court might simply dismiss review under rule 8.528(b). If the Court does transfer the case, the parties would probably be able to file supplemental briefs under rules 8.528(f) and 8.200(b), which would be unnecessary if the Supreme Court likes the outcome of the held Court of Appeal opinion.
The grant-and-hold procedure saw a good deal of use recently, when Court of Appeal decisions were issued regarding the governor’s ability to order furlough days for state employees. As we mentioned here and here, after granting review in the lead case, the Court granted and held the remaining decisions (one grant-and-hold order was issued a week after the Court heard argument in the lead case). As indicated here, because the opinion in the lead case only became final on November 4, the Court has not yet transferred those cases back to the Courts of Appeal for decision consistent with the lead case. But look for that to happen any time now.
Current odds-on favorites for receiving grant-and-holds are Hernandez v. Chipotle Mexican Grill, Inc. and Brookler v. Radioshack Corp., the two recent published opinions from different divisions of the Second Appellate District, which reach different conclusions regarding whether an employer must simply “provide” meal breaks to its employees or must “ensure” that the employees take those breaks. That issue is presently before the Supreme Court in Brinker Restaurant v. Superior Court (Hohnbaum), which is fully briefed and awaiting oral argument. Since granting review in Brinker, the Court has already granted and held two other cases raising the same issue, Brinkley v. Public Storage and Faulkinbury v. Boyd & Associates. This makes Hernandez and Brookler likely candidates for the same treatment.
The moral of the story is, when deciding whether to seek Supreme Court review, you should definitely check to see whether the Court has already granted review in a case raising one or more of the same issues. If so, highlight that fact up front in your petition for review so the Court appreciates that a grant-and-hold is an appropriate option for your case.