California Budget Deal?
Kullar v Foot Locker Remains Published

Federal Courts on the Brinker Issues

As we wait for the California Supreme Court to decide Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, we can assume with a high degree of certainty that any state court opinion dealing with provide/permit issues or meal/rest break certification orders will be reviewed as a companion case to Brinker. For the next few months, therefore, we will have only Cicairos v. Summit Logistics (2005) 133 Cal.App.4th 949 as controlling authority in Superior Court, but in U.S. District Court, judges are free to guess what they think the California Supreme Court would decide.** When interpreting state law, federal courts are bound by decisions of the state's highest court (In re Kirkland (9th Cir.1990) 915 F.2d 1236, 1238), but in the absence of such a decision, a federal court shall apply the rule that it believes the state supreme court would adopt if faced with the same issue. Arizona Electric Power Cooperative, Inc. v. Berkeley (9th Cir.1995) 59 F.3d 988, 991.

The "make available" and/or denied certification cases that reject or distinguish Cicairos include:

  • White v Starbucks (N.D. Cal. 2007) 497 F.Supp.2d 1080
  • Brown v FedEx (C.D. Cal.2008) 249 F.R.D. 580
  • Salazar v. Avis (S.D. Cal. 2008) 251 F.R.D. 529
  • Kenny v. Supercuts, Inc. (N.D. Cal 2008) 252 F.R.D. 641
  • Perez v. Safety-Kleen Systems, Inc. (N.D.Cal. 2008) 253 F.R.D. 508
  • Kimoto v. McDonald's Corps. (C.D.Cal. 2008) 2008 WL 4690536
  • Watson-Smith v. Spherion Pacific Workforce, LLC (N.D.Cal. 2008) 2008 WL 5221084

    If you are aware of any others, please drop us an email or leave a comment and we will add them to the list. The opening brief in Brinker has been filed

  • ** Well, maybe not entirely free to guess. As a reader points out, a Ninth Circuit case from Oregon holds that a federal court is obligated to follow the decisions of the state's intermediate appeallate courts, unless there is convincing evidence that the state supreme court would decide differently. Ryman v. Sears-Roebuck & Co. (9th Cir. 2007) 505 F.3d 993, 995. 

    ‘[W]here there is no convincing evidence that the state supreme court would decide differently, a federal court is obligated to follow the decisions of the state's intermediate appellate courts.’ ” Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001) (quoting Lewis v. Tel. Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir.1996) (internal quotation marks omitted)). The district court did not cite any evidence that the Oregon Supreme Court would disaffirm Yeager. It merely disagreed with Yeager. FN1 Because there is no evidence that the Oregon Supreme Court would have decided the OFLA issue differently, the district court erred in not applying the Yeager rule.FN2

    FN1. We note that the district court did cite opinions by other federal district judges expressing their disagreement with the Yeager rule. The opinions of other federal judges on a question of state law do not constitute “convincing evidence that the state supreme court would decide [an issue] differently,” Vestar, 249 F.3d at 960, nor do those opinions contain any relevant “convincing evidence.”

    FN2. Although not dispositive, we note that the Oregon Supreme Court declined to grant review of Yeager. See Yeager v. Providence Health Sys. Or., 337 Or. 658, 103 P.3d 641 (2004) (table).

    Given the decision of the Supreme Court not to review Cicairos v. Summit Logistics (2005) 133 Cal.App.4th 949 and Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, and their decision to grant review in Brinker Restaurant Corp. v. Superior Court (2008) 165 Cal.App.4th 25, and Brinkley v. Public Storage, Inc. (2008) 167 Cal.App.4th 1278, in a case where the employer cannot clearly distinguish Cicairos, the District Court should feel obligated to follow it.

    Comments

    Justian Jusuf

    Note however, a federal court is obligated to follow the decisions of the state's intermediate appeallate courts, unless there is convincing evidence that the state supreme court would decide differently. Ryman v. Sears-Roebuck & Co. (9th Cir. 2007) 505 F.3d 993, 995.

    Verify your Comment

    Previewing your Comment

    This is only a preview. Your comment has not yet been posted.

    Working...
    Your comment could not be posted. Error type:
    Your comment has been saved. Comments are moderated and will not appear until approved by the author. Post another comment

    The letters and numbers you entered did not match the image. Please try again.

    As a final step before posting your comment, enter the letters and numbers you see in the image below. This prevents automated programs from posting comments.

    Having trouble reading this image? View an alternate.

    Working...

    Post a comment

    Comments are moderated, and will not appear until the author has approved them.

    Your Information

    (Name is required. Email address will not be displayed with the comment.)