The Brinker concurrence: when two is not enough

By John R. Giovannone

Rap artist Jay Dee once famously observed, "two is not enough for me, no."(J. Dilla, "Won't Do"). That rule also governs opinions of the California Supreme Court, which require a four-justice majority opinion to make law.

Yet the plaintiffs' bar seems to have put much stock in the two-justice concurrence appearing in the Court's April 12 decision in Brinker Restaurant Corp. v. Superior Court. The only justice writing in Brinker was Justice Kathryn Mickle Werdegar. Her unanimous opinion for the Court, addressing the law on meal and rest breaks and on the proof needed to justify class certification, largely favors the positions that the employer defendant espoused.

But then, Justice Werdegar also authored a concurring opinion, which attracted the vote of Justice Elwood Lui. The two-justice concurrence advances propositions that the employers' bar finds controversial, such as these:

First, the concurrence posits that whenever time records do not reflect a meal break being taken, "a rebuttable presumption arises that ... no meal period was provided" and the employer must then prove an affirmative defense of waiver.

Second, the concurrence suggests that plaintiffs can use "[r]epresentative testimony, surveys, and statistical analysis" as class-wide proof of "the extent of liability" [sic], although the case the concurrence cites as authority for this assertion is a Court of Appeal decision that addressed stipulated methods to prove the amount of damages, in a case where liability was already established. Bell v. Farmers' Ins. Exchange, 115 Cal. App. 4th 715 (2004). In Bell, the court first observed that "Plaintiffs effectively sought an adjudication of ... liability in a motion," which was "upheld" in a separate appellate "decision in ... 2001 ... ." After observing that the issue of liability had already been established, the Bell court went on to "conclude that the proof of aggregate damages [not liability] by statistical inference reflected a level of accuracy consistent with due process" (emphasis added).

Third, the concurrence maintains that "individual damages questions will rarely if ever [sic] stand as a bar to certification."

Some plaintiffs' lawyers are citing the concurrence as if it were the opinion of the Court. At a post-Brinker event hosted by the Los Angeles County Bar Association, a plaintiffs' lawyer who had been involved in Brinker proclaimed that the case establishes the proposition that statistical sampling is now available to prove class-wide liability. More formally, the Initiative Legal Group has argued on its website (www.impactlitigation.com) that the concurring opinion "elaborated on the decision's core class certification content by endorsing statistical and sampling methodologies ideally suited to class actions" and that Brinker "is a uniformly strong endorsement of class actions as well as suitable methodologies and case management tactics."

The point that lawyers miss in this pro-plaintiff spinning is a point that lay readers will grasp as obvious: five of the court's seven justices declined to endorse Justice Werdegar's high praise for easily certified class actions. That is, in this statistical sample of seven, over 71 percent of the respondents voted against the extreme pro-plaintiff propositions that the two-justice concurrence advocates. And, the fact that Justice Werdegar wrote both the court's opinion and her own personal opinion simply highlights the isolated nature of the latter, since Justice Werdegar certainly could have included in the main opinion in Brinker anything that the majority of justices found non-objectionable.

A more formal legal analysis confirms what common sense already teaches us. Writing a separate concurrence serves the function of identifying what the Court's opinion does not resolve. In a 1997 decision, Cheong v. Antablin, Supreme Court Justice Ming Chin authored both the majority opinion and a concurring opinion, explaining that the concurrence was to address unresolved issues of law:

"As the concurring opinion that I have filed in this case indicates, a number of the justices who have signed this majority opinion question whether this conclusion is correct. We need not resolve the point here, however, because, even if that conclusion is correct, the elements [of plaintiff's civil action still] have not been met in this case."

The Werdegar concurrence had the same aim - to address issues that were left unresolved and that were questioned by the majority. The concurrence itself says as much: "I write separately to emphasize what our opinion does not say," i.e., that while the Court's opinion renders certain class actions more difficult to certify, the opinion does not say that "the question of why a meal period was missed renders meal period claims categorically uncertifiable." It would be a mistake, therefore, to confuse Justice Werdegar's concurrence for the Court's opinion, as the function of the concurrence was to address issues the Court chose not to resolve.

Justice Werdegar herself has provided further definitive guidance on the nature of concurring opinions. On April 19 (one week after Brinker), the California Supreme Court issued her opinion for the Court in People v. Hernandez. At issue was whether the Sixth Amendment required reversal of a criminal conviction where the trial court refused to let the defense attorney show the defendant a prosecution witness's sealed declaration. Hernandez holds that the defendant challenging such a restriction on the right to counsel under the Sixth Amendment must prove resulting prejudice.

This pro-prosecution result was arguably inconsistent with a 1976 U.S. Supreme Court concurring opinion joined by two justices (William Brennan and Thurgood Marshall). But the views of this concurring opinion did not persuade Justice Werdegar, who observed, on behalf of a unanimous California Supreme Court: "It is perhaps significant that the majority opinion did not embrace the expansive view of the [two] concurring justices."

In other words, in our context at least, the late Jay Dee got it just right: "two is not enough."

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