In light of last month's decision in Brinker Restaurant Corp. v. Superior Court (2008) __ Cal.App.4th __, we've heard from quite a few plaintiffs' lawyers who are planning to make PAGA allegations a routine part of every meal and rest period case they file or continue to pursue. There is currently no requirement to certify a class in a PAGA case, but the Supreme Court has that issue under review in Arias v. The Superior Court of San Joaquin County (Angelo Dairy) (Supreme Court case no. S155965), which is now fully briefed.
That tactic may be less prevalent if the Brinker decision is reviewed by the California Supreme Court. Brinker became final 30 days after the decision was published. That date was August 21, 2008. Ordinarily, a petitition for review is due ten days after the decision becomes final. In fact, the petition for review was filed today. The Supreme Court now has 60 days (until October 28, 2008) to grant or deny review. The Supreme Court makes such decisions in its weekly conferences each Wednesday. In effect, this means the decision will come by Wednesday, October 22, 2008. However, the Supreme Court can grant themselves 30 day extensions, and they often do. It could easily, therefore, be the end of November before Brinker becomes non-citable, or remains citable. For now, it is good law.