More than ten requests for publication were filed in the Brinker case: Cross Country Healthcare, California Employment Law Council, Atkinson, Andelson, Loya, Ruud & Romo, Paul, Plevin, Sullivan, etc., Akin, Gump, Strauss, etc., Winston & Strawn, McKenna, Long & Aldridge, Sheppard Mullin, Wells Fargo, Proskauer Rose and Manatt Phelps Phillips. And the DIR. Proving that it is now little more than a political spoil, Labor Commissioner Angela Bradstreet also sought publication of the opinion, even though it contradicted a long-standing DLSE position (taken when the GOP did not control the DLSE's policies). The 4th District responded to the requests, and a petition for review, by sending a letter to the Supreme Court saying this:
Enclosed are 10 requests to publish the opinion in the above matter, together with a copy of the opinion. By separate letter, this court is requesting that the Supreme Court grant review and transfer the case to this court. This court recommends the opinion not be published on the ground it does not yet meet the standards for publication.
The separate letter said:
Chief Justice George: In the matter of Brinker Restaurant Corporation v. Superior Court of San Diego County/Hohnbaum, et al. (S157479, D049331), the Fourth Appellate District, Division One issued an opinion on October 12, 2007, stating the opinion is final as to this court immediately. The portion of the opinion stating it is final immediately is a clerical error, therefore this court respectfully requests that the Supreme Court grant review and transfer the case to this court. Please note a Petition for Review was filed on October 22, 2007. By separate letter from Acting Presiding Justice Gilbert Nares in response to the 10 requests to publish the opinion in the above matter, the court has recommended the opinion not be published on the ground that it does not yet meet the standards for publication.
In response, the Supreme Court quickly vacated the opinion:
At the request of the Court of Appeal, review is granted on this court's own motion. The cause is transferred to the Court of Appeal, Fourth Appellate District, Division One, with directions to vacate its opinion and reconsider the matter as it sees fit. The petition for review is denied as moot. The requests for publication are denied as moot. Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
As a result, the opinion is, for the time being, not only unpublished, but vacated. When and in what form the final opinion will be published is anyone's guess. The court's website says a remittitur will be issued on November 13, 2007, but that clearly will not happen. Whether further briefing or argument will be permitted in connection with the reconsideration is unclear.