After the renowned remand from the California Supreme Court, the Hohnbaum plaintiffs in Brinker Rest. Corp. v. Superior Court, 53 Cal. 4^th 1004 (2012) sought to certify meal period claims alleging that all California employees were denied meal periods because Brinker’s corporate meal period policies were unlawful.

Plaintiffs argued that Brinker’s corporate policies were unlawful because (1) prior to 2002, it had no meal period policy at all; (2) between 2002 and 2012, the policy failed to inform employees of their right to take a second meal period; and (3) from 2002 to the present, the policy failed to accurately inform employees of the specific times they were entitled to take meal periods.

On DATE, the trial court certified the meal period class finding that the legality of Brinker’s corporate meal period policies was a common question that predominated the litigation because liability would turn on this question alone.  The court said, “Plaintiffs ultimately may be able to prove that the policy is invalid” and “should Brinker prevail in proving that its written policies are valid, it will have the benefit of a judgment that binds the entire class.”

The court seemed to overlook entirely the notion that Brinker can only be liable for meal period violations if employees actually missed their breaks – irrespective of what the policy says.  Notably, the court refused to consider whether employees actually received their meal periods, stating “whether or not the employee was able to take the required break goes to damages, and the fact that individual employees may not have different damages does not require denial of the class certification motion.”

The court also rejected the idea that individualized issues would necessarily predominate the litigation because employees may miss meal periods for different reasons.  Instead, the court held that, “[t]he fact that individual employees might be able to establish a violation of the law regarding meal periods by using evidence unique to their particular circumstances – e.g., the practices of an individual restaurant – does not mean that a class action cannot be tried based on only common evidence.”  The court held that the “focus is on the plaintiffs’ theory of liability and proof, not on alternative approaches a defendant might prefer were being pursued.”

While this lower court decision has no precedential effect, it is likely that other employees will follow these plaintiffs’ lead and allege that corporate policies – whether facially lawful or not – violate California law in order to generate a common question justifying class certification.  And, should trial courts adopt this court’s reasoning, class actions will invariably be much easier to certify.