Brown v. Ralphs Grocery Co. is now final final final

Assuming you fall into the camp that doesn't want to see arbitration used to destroy all collective rights (which camp includes plaintiffs' counsel explicilty and defendants' counsel covertly), here is some good  news, compliments of The UCL Practitioner.  The U.S. Supreme Court denied a petition for writ of certiorari in Brown v. Ralphs Grocery Co., 197 Cal.App.4th 489 (2011).  In Brown, the Court of Appeal (Second Appellate District, Division Five) held that representative PAGA claims (i.e., not class-based claims) are not subject to arbitration, even post-Concepcion.  That's Concepcion, the case, not the other option (with different spelling).

Get your PAGA letters ready.

The unconstitutional dismantling of California's judicial branch continues unchallenged

I have written previously about the unconstitutionality of underfunding California's Courts, including a Daily Journal article posted here.  And with every additional funding cut, I believe that the legislative and executive branches march further down the path of unconstitutional conduct.  In the latest example of grevious injury to our Courts, the Los Angeles Superior Court has announced $30 million in additional cuts (about $70 million in prior cuts).  These cuts include the loss of 56 courtrooms, layoffs of 100 additional non-courtroom staff (above 329 layoffs and 229 attrition-based reductions), and a significant reduction in court reporter availability.

It is my fondest wish that a victim of these latest layoffs, a litigant, and a judge will all step forward and challenge the constitutionality of starving a co-equal branch of government.  Where are the checks and balances when one allegedly equal branch exists at the mercy of politicians that refuse to make the tough choices necessary to ensure, as a first priority, that the judicial branch is capable fo resolving the legal disputes it was created to resolve?

Regardless of whether you represent plaintiffs, or defendants, civil litigants or those charged with crimes, you cannot acquiesce to this relentless assault on fundamental, constitutional rights.   This is not a political question.  The California legislature is not constitutionally empowered to eviscerate the judicial branch.

Write your legislators.  Tell them that they must discharge their constitutional obligations before any other consideration.

And no, this is not the end of my rant.  It's just a pause...

Breaking News: Brinker opinion now available

With traffic to the California Courts website so heavy that a temporary mirror site was added, the long wait for the Brinker opinion in now over.  I can't write extensive comments now, but a quick skim suggests to me that the opinion falls somewhere in the middle of what the respective sides hoped to see happen.

Breaking News: Brinker decision to be released tomorrow

The Supreme Court has just released a Notice of Forthcoming Filing, indicating that the Brinker opinion will be published tomorrow.  Stay tuned for the insanity...

California Supreme Court activity for the week of March 26, 2012

The California Supreme Court held its (usually) weekly conference on March 28, 2012.  Notable results include:

• Review was granted in Wisdom v. Accentcare, Inc.  The Court of Appeal invalidated an arbitration agreement as unconscionable and expressly criticized the result reached in Roman.  The case was covered on this blog here.

California Supreme Court activity for the week of March 12, 2012

The California Supreme Court held its (usually) weekly conference on March 14, 2012.  Notable results include:

• Review was granted in Rose v. Bank of America.  The Court of Appeal held that a UCL "unlawful" prong claim could not be based upon alleged violations of the federal Truth in Savings Act, 12 U.S.C. § 4301 et seq.
• Review was granted, and the matter held, in Aleman v. Airtouch Cellular (December 21, 2011).  The "lead" case for which Aleman was held is  Kirby v. Immoos Fire Protection, Inc.  The issue for review in Aleman is likely the portion of Aleman concerning one-way or two-way fee recoveries. 

Supreme Court activity for the week of February 13, 2012

With a lot of catching up to do, I'm starting easy.  The California Supreme Court held its (usually) weekly conference on February 15, 2012.  Notable results include:

• On a petition for review, review was granted in In re Cipro Cases I & II.  This case is one to follow if you practice in the area of anti-competitive behavior.  There's a big dash of pre-emption thrown in, along with some procedural questions about a trial court's obligation to rule on evidentiary objections at summary judgment.
• On a petition for review, review and depublication were denied in Collins v. eMachines, discussed on this blog here. The Court of Appeal held that “injury in fact” can be satisfied by alleging as damages the difference between the actual purchase price and the fair market value of a defective product. 

California Supreme Court activity for the week of December 12, 2011 [with Brinker Bonus!]

The California Supreme Court held its (usually) weekly conference on December 14, 2011.  Notable results include:

• Brinker news!  The submission of the matter is vacated and additional briefing is requested.  Wait. You thought that a decision was imminent after oral argument?  So precious!  This is BRINKER we are talking about.  Your children will be writing supplemental briefs for this decision.  The California legislature will have withdrawn and re-enacted an entire Labor Code before a decision is rendered (at which point it will again be vacated for briefing on the impact of changed law retroactively).

The downside of this news is that I will need to create a 2012 edition of my Brinker News graphics.

Oral argument comes and goes in Brinker; many prognosticators see a Court rejecting the "ensure" standard

Oral argument was finally held in Brinker last week.  Wagering on appellate court outcomes after listening to oral arguments is not a smart use of gambling funds in most instances, and it seems dangerous here as well.  But most assessments of the argument seem to agree on two things.  First, the consensus is that the Justices appeared to direct a more critical set of questions to plaintiffs' counsel, Kimberly Kralowec, on the issue of whether employers must "ensure" that meal periods are taken, rather than simply "provide" employees with an opportunity to take a meal period.  Second, on the issue of when a meal must occur, at least Justice Liu appeared to take exception with an interpretation that would allow an employer to schedule meal period after more than five hours of work.

Here are a few examples of coverage of or opinions about the oral argument:

• Howard Mintz, California Supreme Court hears arguments in showdown over worker rest and meal breaks (November 8, 2011) San Jose Mercury News
• Alison S. Hightower, What is the duty to "provide" a meal period? Oral argument before the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (November 8, 2011) Lexology
• Kathy Robertson, Supreme Court wages hearing focuses on enforcing meal breaks (November 8, 2011) Sacramento Business Journal

In something approximating 90 days we will finally know the answer to this great mystery.

Remand of Sonic-Calabasas A, Inc. v. Moreno may provide more guidance on status of arbitration defenses in California

On Monday, October 31, 2011 (hello, Halloween), the United States Supreme Court issued the following Order:

10-1450 SONIC-CALABASAS A, INC. V. MORENO, FRANK The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the Supreme Court of California for further consideration in light of AT&T Mobility LLC v. Concepcion, 563 U.S. ___ (2011).

In Sonic Calabasas A, Inc. v. Moreno (2011), reported at 51 Cal. 4th 659, a divided California Supreme Court (4-3) concluded that (1) "Berman" hearings are an unwaivable statutory right, (2) arbitration is an acceptable alternative to de novo review by the Superior Court, (3) a waiver of the right to a "Berman" hearing before the Labor Commissioner is against public policy, and (4) the waiver of a "Berman" hearing is unconscionable under standard contractual principles of unconscionability analysis.

What does this mean?  It means that the underpinnigs of Gentry may be explored in the follow-up opinion.  It also means that the new Justices, including the new Chief Justice of the California Supreme Court, may be deciding votes, given that Chief Justice George was in the majority and Justice Moreno authored the original opinion.