Daily Journal: "Depublication of employment appellate rulings stirs curiosity"

On Wednesday, the Daily Journal had a front-page article on the Supreme Court's decision to depublish three post-Brinker Court of Appeal opinions on meal periods (discussed here and here).  An excerpt:

Kimberly A. Kralowec of the Kralowec Law Group filed a depublication request for each of the three cases in question, though she was not otherwise involved in them. She asserts the decisions misstated the Supreme Court's analysis in Brinker by relying on an older analysis of the word "provide" that refers to the dictionary and interprets the phrasing to mean the employer meets the obligation by simply offering breaks.

"It's a lot more than just offering or authorizing a break," Kralowec said. "The employer has to take affirmative steps to relieve workers of all duty, and refrain from doing anything that would interfere with the employees' ability to take a break."

The reporter, Laura Hautala, also interviewed former Justice Carlos Moreno about the development:

[F]ormer Justice Carlos R. Moreno, who retired from the state Supreme Court in 2011, said that depublished cases typically have something in them that's inconsistent with the high court's own precedent. 

"If a case is really off the mark, then the court will elect that remedy," he said.

Mine were not the only depublication requests.  Michael Singer filed requests for CELA in Hernandez and Lamps Plus; Joseph Antonelli filed a request for his clients in Tien; and Eve Cervantez filed a request for a group of workers in Lamps Plus. 

All of the requests made essentially the same argument -- that the Court of Appeal was badly misinterpreting the Brinker opinion.  My requests also pointed out that in so doing, the Court of Appeal failed to adhere to the rule of stare decisis, which requires allegiance not only to the high court's holdings, but also its reasoning.  All three opinions were "really off the mark" because they did not adhere to either the ultimate holding or the reasoning of Brinker.

Recently, on January 7, 2013, The Recorder had a front-page article on the first two depublication orders.  The article, "High Court Tees Up Number of Post-Brinker Cases," preceded the depublication order in Tien, handed down on January 16.  An excerpt:

In a dramatic move, the state Supreme Court depublished two of those rulings — Lamps Plus Overtime Cases, 195 Cal.App.4th 389, and Hernandez v. Chipotle Mexican Grill, 208 Cal.App.4th 1487. In both cases, the Second District had denied class certification.

Kimberly Kralowec of The Kralowec Law Group said in both rulings the Second District had "misinterpreted the Brinker decision, in particular what employers have to do to comply with their meal period obligations." Depublishing, she said, "was a very strong signal that the court disagreed with the analysis" in those two cases.

Needless to say, I'm very pleased to have done my part to achieve depublication in these cases, and I think that depublishing the opinions was the correct outcome, given that the Supreme Court is apparently not ready to revisit any of the issues addressed in Brinker by granting review in these cases. 

I am equally pleased by the press attention these developments have garnered.   That the Supreme Court would depublish three opinions like this is pretty remarkable, whatever the issue.  Many lawyers have sent expressions of thanks and contratulations which I have been so pleased and proud to hear. Congratulations are also due to Michael, Joe and Eve. 

Comments

[Leslie Miller]

If the cases were wrongly decided, why didn't the Supreme Court grant review?

[Kimberly A. Kralowec]

The Supreme Court is not an error-correction tribunal. Its job is to resolve conflicts among lower courts and to decide important issues of widespread interest. Here, depublishing eliminated the conflict created by the incorrect decisions. Also, the Court decided the Brinker case relatively recently, and observations of the Court's activities over the years suggest that it does not usually take up other cases raising identical questions so quickly after handing down an opinion. Sometimes the Court waits to take up an issue until it has had more time to percolate in the lower courts. These are all educated guesses about why the Court decided to depublish rather than granting review.