First, we had Murphy v. Kenneth Cole Productions, where, on December 2, 2005, in a carefully crafted collection of dicta, the First District Court of Appeal stated that meal and rest period pay is a penalty. That case is under Supreme Court consideration right now, and the defense's answer to the plaintiff's petition for review is due on Tuesday.
Next, on January 5, 2006, the Fourth District, Division Three, passed on considering the issue when it denied the employer's writ petition in Norm's Restaurants, Inc. v. Superior Court.
A couple of weeks later, we had National Steel and Shipbuilding Company v. Superior Court (Godinez), where the Fourth District Court of Appeal ruled on January 20, 2006 that meal and rest period pay is a wage. You can download that opinion here. It is possible that we will have a ruling on the Murphy writ petition before any petition for review is due in this case.
On Friday, we got Mills v. Superior Court, where, as we predicted, the Second District Court of Appeals called the pay a penalty. Unlike Murphy, this was a holding. You can download the Mills opinion here in pdf or MS Word format. We are sure we'll be getting a pile of supplemental briefs citing this case next week.
We are still awaiting a tentative decision from Division Two of the Fourth District in Banda v. Richard Bagdasarian, Inc., where, because of the former tentative ruling in the Orco Block case, we suspect the decision will also be that the pay is a penalty.
The dictum in Caliber Bodyworks Inc. v. Superior Court (2005) 134 Cal. App. 4th 365, calling the pay a penalty, is now with us for good. No petition for review was filed.
Some defense counsel are claiming that two penalties and a wage ruling will convince the Supreme Court to refuse to review Murphy. We believe that the split of authority makes it more important than ever for the Supreme Court to decide the issue. Until it does, for example, virtually every Orange County judge will call the pay a wage, and nearly all Los Angeles judges will call it a penalty. The value of a case will depend entirely upon where the plaintiff chooses to file. That is bad public policy. We will be sending a letter to the Supreme Court urging them to review Murphy.