Yesterday, the Supreme Court granted review in Brinker Restaurant Corp. v. Superior Court (Hohnbaum), no. S166350. In that case, the Court of Appeal reversed an order granting class certification of meal period, rest break, and off-the-clock claims. Brinker Restaurant Corp. v. Superior Court (Hohnbaum), 165 Cal.App.4th 25 (2008) (review granted). Under Rule of Court 8.1105(e)(1), the Court of Appeal's opinion is no longer citable as precedent. [Disclosure: I am co-counsel of record for the employees who sought Supreme Court review in this case.]
Most of the attention this case has received has focused on the substantive wage and hour issues, particularly the meal period compliance questions, that the case raises. Those issues are extraordinarily important. But the case also raises significant class certification questions that may prompt the Supreme Court to expand on its holding in Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319 (2004), which the Brinker opinion all but ignored. The petition for review states the class-certification-related issues as follows:
5. Survey and Statistical Evidence Issue: May trial courts accept expert survey and statistical evidence as a method of proving meal period, rest break, and/or "off-the-clock" claims on a classwide basis?
6. Standard of Appellate Review Issue: When an appellate court reviews an order granting class certification, does the appellate court prejudicially err by: (a) deciding issues not enmeshed with the class certification requirements; (b) applying newly-announced legal standards to the facts, then reversing the class certification order with prejudice, instead of remanding for the certification proponent to attempt to meet the new standards, and for the trial court to apply the new standards to the facts in the first instance; or (c) reweighing the evidence instead of reviewing the trial court’s predominance finding under the substantial evidence standard of review?
It will be quite interesting to see what the Supreme Court does with these issues.
Today's Recorder reports that "Supremes Take 'Brinker' Break Case," and the Daily Journal that "California Supreme Court to Take Up Meal and Rest Break Case" (subscription).