Opinions issued in three Brinker "grant and hold" cases: Muldrow v. Surrex Solutions Corp., Lamps Plus Overtime Cases, and Hernandez v. Chipotle Mexican Grill
Three published post-transfer opinions have been handed down in Brinker "grant and hold" cases (of which there are nine). The first opinion to be published comes in the last "grant and hold" case, in which the Supreme Court granted review on April 11, 2012 (one day before the Brinker opinion issued).
In Muldrow v. Surrex Solutions Corp., ___ Cal.App.4th ___ (Aug. 29, 2012), the Fourth Appellate District, Division One, affirmed the trial court's judgment in a non-class-certification context. According to the Muldrow panel, "In Brinker, the Supreme Court held that anemployer need only provide for mealperiods, and need not ensure thatemployees take such breaks." Slip op. at 24.
As I have explained elsewhere, that is not a correct reading of Brinker; in fact, the Supreme Court held that employers have an affirmative obligation to relieve employees of all duty for their meal periods. Brinker Restaurant Corp. v. Superior Court, 53 Cal.4th 1004, 1017 (2012) ("an employer’s obligation is to relieve its employee of all duty"). For unknown reasons, however, the parties' counsel in Muldrow conceded the incorrect reading. See id. at 25 n.17 ("Intheir supplemental brief, filed after transfer from the Supreme Court,appellants concede that the Brinkercourt 'answered [their claim on appeal] in the negative.'"). The analysis consists of a single paragraph at the end of an opinion primarily focused on other issues.
The Second Appellate District, Division Eight has published post-transfer opinions in two of the nine "grant and hold" cases:
- Lamps Plus Overtime Cases, ___ Cal.App.4th ___ (Aug. 20, 2012; pub. ord. Sept. 5, 2012)
- Hernandez v. Chipotle Mexican Grill, Inc., ___ Cal.App.4th ___ (Aug. 21, 2012; pub. ord. Aug. 30, 2012)
Both opinions come from the same panel (Bigelow, P.J., Grimes J., andFlier, J.). Both affirm lower court orders denying classcertification. I will try to have more on these opinions later.
UPDATE: On December 12, 2012, the Supreme Court depublished the Lamps Plus and Hernandez opinions. Depublication requests remain pending in Muldrow and in another post-transfer opinion, Tien v. Tenet Healthcare Corp., 209 Cal.App.4th 1077 (2012).