On August 10, 2006, the Fourth District Court of Appeal, Division One, denied two writ petitions filed by Starbucks in the Chou v. Starbucks tip-pooling case after the trial court granted class certification and denied a defense summary judgment motion. In the latter proceeding, the Fourth District requested a letter brief concerning whether Labor Code § 351 provides a private right of action and whether restitution is available under the UCL for such claims. After considering the petition, a letter brief and preliminary reply, the court denied both petitions without formal briefing, argument or opinion.
The petitions represented to the court that there were a great many tip pooling cases pending statewide and several trial courts have ruled there is no private right of action under section 351. We have difficulty believing that, especially after Jameson v. Five Feet Restaurant, Inc. (2003) 107 Cal. App. 4th 138, but maybe there are judges out there who think that labor laws were made to be broken and there isn't a damn thing employees can do about it. If you know of such a judge, let us know.