there it seems to me we have a genuine dispute about what state law provides here when the california supreme court doesn't appear to have resolved which take strays from brinker and make arguments why shouldn't we certify these issues i think because because of what this court has said about what you do in this circumstance so obviously when there's a controlling california supreme court case it's simple you follow it but what this court said in a in a case called a call this is a couple years ago and it's eight fifty one f thirty nine eighty two is that where as here and i'm quoting there is relevant precedent from the state's intermediate appellate court the federal court must follow the state my side i know but we have these industrious you forget the daily case you know what's interesting about that case is it doesn't it if it's got it maybe wrong  i'm wrong but basically all california decisions may be wrong as far as i know but california law is i think it's a little bit different in that you had brinker then daley came out and then you have bradley and you have benton you have fuckin barry and you have lubin and you have albert and all of those cases come after daily from the same division of the court from the same divisions of the court of appeal that decided that bradley well i mean daley is actually a fourth district case right so you've got you've got fourth district case law that post states and daley really has as far as i can tell just a paragraph or maybe really just a sentence that goes in the other direction with no analysis of the wage order or the statutes or brinker what so what are you so resistant to ask him to call for new supreme court has told us gee don't make important state law on your own right ask us first this is important i don't i don't lack any confidence in my prediction that the california supreme court would follow all of the the california courts of appeals posting daily i think the problem is this case has been going on since two thousand and eight and part of the reason is that it's ping ponged back and forth to the to the ninth circuit it was stayed during franker and so you know given how long the california supreme court would would take to decide this that would be a real hardship to our clients well my recent experience is they get back to us in less than a year with the answer and state law which i think in this with you're absolutely right that california's substantive law is dispositive of this appeal that but that's true of many appeals and i think there are many cases in which the ninth circuit is called upon to decide questions of california law where you have far less evidence from the california courts of appeals that you have then you have here which is an you know unbroken line of all of the cases that i just mentioned although the district courts for some reason seem to and by and large have adopted the other view that's right but not so so that it's not giving assuming that mark colleagues in the district court are smarted able people it strikes me that it's not intuitively obvious that california law is clear i think when you look at those federal district court decisions what you won't see is that they they've identified a considered split among the california courts of appeals and are choosing one side of those that split instead what i think you have is a kind of chain reaction where one or two district court decisions went the wrong way and they just sort of cited each other and i don't think when you're making an eerie prediction about what california law is that you should give much weight if any to that kind of thing instead you have to make a prediction you have to decide what is the california supreme court said we think brinker by the way says quite a lot on the question think are holes that you have to provide these breaks not simply that you can come into compliance accidentally  the brinker seems to say clearly is that you can't you can't prevent your employees from taking the breaks or discourage them from taking breaks once you've made them aware of the right to take them that's another issue in this again if you're making an eerie prediction you have to give considered wait to that concurrence that is a concurrence written by the author of the majority california supreme court decision explaining the import of her decision for guidance on remand and node justice guidance about what the opinion the author of the opinion meant and then you have the california courts of appeals following that approach and you don't my opponents haven't cited to any california court of appeals decisions that reject that concurrence i must say and this is not you don't have to answer this question it's strange normally what happens if plaintiffs allusion to district court are just dying to get to the california supreme court right that defendants who lose in the district court don't want to get anywhere near the california supreme court if you conclude after a considered review of these california court of appeals cases that there really is disagreement i'd be surprised if that's your conclusion because the cases so strongly favor us and the only not engage in a discussion of all of these california court of appeals cases and come to a complete considered conclusion that she thinks the weight of california law post brinker goes a certain way she just didn't engage with those cases at all and i think that's what unfortunately so many of these district court decisions have done they just they're deciding each other and so i don't want to resist too hard because i do think at the end of the day if you were to certify the california supreme court would say what all the california courts are saying but i think it would be a futile step that would delay the proceedings and so that's the only reason i'm i'm resisting because i think with the with the exception of one or two sentences in the daily case that you know i think you have to evaluate based on the persuasiveness and thoroughness of its analysis you've got cases like benton and bradley that have an exhaustive analysis these were cases that were sent back down after brinker for a thorough consideration of what brinker me and brinker said you've got to provide the breaks and let me ask you one other question about there's a footnote in a subsequent california in which neither of you cite where the california supreme court says essentially supreme court well i think what the california supreme depends what you mean the california supreme court has said you've got to provide these breaks and the defendant's view is you can satisfy that obligation by doing nothing because that's really what they did here right they had no policy authorizing the breaks they did not inform their employees about the opportunity to take breaks guaranteed by california law they never paid a premium wage for missed breaks they failed to pay for any rest breaks they failed to keep any records all of the things the california law requires they did none of those things and so that's why they're left to argue that you can come into compliance by accident by inaction and what the respirators purely through inaction and there really isn't any ongoing disagreement among the california courts of appeals on that question i think for you to to make the eerie prediction you have to you have to look at the extant state of california law and decide what this california law say if there were cases if there was at least one case out there where a california judge said i think this is unclear think we're not saying that the california supreme court in brinker answered every question that's relevant here that's not our position our position is that to the extent brinker and the california supreme court have not fleshed out what that affirmative obligation means first of all the affirmative obligation cannot be discharged by doing nothing which is what happened here and that if you have any doubt about that the overwhelming weight of california appellate case law the unbroken line of cases after da suggests that that the district court's decision rested on a manifestly erroneous understanding of california law if there are no further questions all reserved for a bottle right thank you count he posted the way juror in the front in a terminal in the reception area with the area where the driver still let's assume that was sufficient posting the question is according to your colleague if they didn't have a formal meal and respray policy in compliance with california law then there's a violation so dress why why that's not california law in the absence of a policy you violated the statute what they talk whether or not there's damages for an individual separate issue but on liability that establishes a right those were instances where the employer either had a policy that prevented them from being able to take breaks bradley was bradley was an employer that didn't present any evidence ben was an employer that did not permit brakes beautiful was one that ford did the employees to take breaks godfrey discourage the employees from taking breaks and and lucan and fuckin very were if the employer regularly discouraged breaks that's a different circumstance if you have a policy and then you do things to undermine or you have no policy but you tell people they're not allowed to take breaks that can become in a violation of the law under bring so you think it's sufficient under california law to comply if you merely post the statute at the place of work s requirements at the place of work and then do nothing if you do not impede prevent or discourage people from taking it that isn't true my question is yes and that's that is the answer that question is yes it's two part the that you either don't post the notice or you do something to discourage impede prevent them from being able to do so if that's the law why is near fact question about whether or not your client impeded following their statute by by its fifty mile an hour requirement that it can answer the fifty mile an hour is not a requirement that there's this crumbling highway behind the driver  a driver's manual it's as if i were a driver and i wanted to figure out what mike what my employer wanted and the manual said you're supposed to average fifty miles an hour on trips i would regard it as as a job as a i take meal and rest for days whenever i wanted to take what he got sort of a contradictory declaration where they ask about the exact reason says this requirement made it impossible at times to take rest and meal breaks and then of course he doesn't describe any that he missed but so he says is the problem here and they have a denture he deficiency as opposed to as opposed to whether or not in some cases this might be a problem i think that's the problem the plaintiff has with everything they say they never talk i ne of the alleged deficiencies with an actual missed meal or rest break in other words they don't say the fifty mile an hour trip planning guide is something that cause me to miss a particular meal or restaurant and that's what the district court found that there was no evidence linking this this alleged policy with a mystery on respirator what relevance does it have to this case the answer maybe not but it it intrigues me at the time these events took place the employer didn't think these folks were subject to california law because it thought there were always preempted it that issue got litigated i see all kinds of different  yeah i mean but you know we don't criticize prior decisions of nice or i don't either ok good we're both in the same ground it's a little strange to say that during that period when you didn't think they were entitled to california breaks you were doing nothing to stop them from taking california breaks here's here's what see arrestee did with the very policy serious he posted the notice of they had notice of what the rights were under california law but see if anybody had asked anybody today they would have said california law doesn't apply to you don't worry about that there is no evidence that that i know it's one that's why i'm asking it's sort of a strange record in hell that in that part there is no evidence of it the second thing is serious to told the drivers that they could take breaks whenever they wanted they encourage them to take where does it say they could take them whatever they wanted when i saw that was what i saw in the policy was you should take breaks as necessary and a twenty minute break every five hours and it was if you were to take at least a fifteen minute break every five hours the plaintiffs had turned that around and said that they were only allowed to take a fifteen minute break every five hours that is a misstatement misconstruing of the policy in the only way they can get to where they want to be is to actually misstate misrepresent what that policy says it never says that they can only take a fifteen minute break sirus t encourages them to take the breaks that they need to take they all testif they were told that they could take the breaks when they needed to and when they wanted to they were not limited in the frequency the number or the length of the breaks in call in self said that he took a two hour break in the middle of this work shift while he was out on the road and he took other breaks that were shorter but he took at least a two hour break that's not a company that is somehow preventing people from taking bricks it did not it never told any driver that they could not take breaks it never told driver that they were precluded from taking breaks it's one call said he called one time the company said take a break didn't have any problem with it the company did nothing to impede or prevent any driver from taking a break at any time and none of the witnesses that they called the the class members ever said that they were ever told they could not take a break that they were told they were dealing here with were dealing with mr cole's claim or were i mean but realistically because if if we whether or not to certify a class because her the certification was based on her view of california law wasn't it it was yes so let me ask you the sixty four dollar question do you want to go to the can on one supreme court i don't think it's argue that california law is one hundred eighty degrees different and there's a split in the courts why should we let the california supreme court this is important stuff why should we let them make state law i must say i used to be a state supreme court justice and i hated it when the nights are good made important arizona loser why shouldn't the california supreme court make important california are you saying i think in blinkers if they had said that a policy that the wager was not enough it would have said that it never said anything like that it said would an employer is required to do is to post the wage order well i'm put here it's it's surely an open question it says in footnote twenty eight injuria required other wage and hour claim  subsequent cases where we don't have an answer to this yet they you know they they have they haven't explicitly said it breaker but what they did say is what's an employer required to do we all waited for brinker to come down so we would know what we had to do we did yes and what they said was post the wage order that's required because the posting is a notice to employees of their rights we see that in the in federal law as well the state law the require postings to give notice to employees of their rights under the law that's the whole purpose behind it and if we did it we met that requirement and there's no no dispute that we that we posted that not this idea of there's an absence of records is not the law i know but it's two justices are of the supreme court and the rest of the supreme court's never addressed that issue so it's not for sale which is required for it to be no one should it's not  i can count but it's two justices of the supreme court say we don't have to reach it in this case which is why i think mr gupta stronger today sort of resolved it but we kind of think the law goes even further than our our colleagues mentioned today and we want to make that clear so that when the next case comes up we can fight about that and why don't we want to fight about yours the reason why it is the idea that you would have a presumption like that when there is no requirement to ensure that employees take breaks would think he is into the system with that decision the decision saying that you don't have to take breaks drivers are free to to work through breaks if they want we don't have to police it and that and more than that we even have records of breaks the drivers record those breaks in the driver's hours of service logs there are four on to put it on the pay statement that there's no nothing that they didn't notify the dispatcher they were taking a break there's no requirement that they do that that there's nothing on the trip sheets that they took a meal break it's not required they've got the hours of service laws that are a related question yes do you agree that how we how we come out in california also answers the question of occasion question because the district judge certified the class brinker came down she then s think the court also decertified because there is not a comment you know her decision on certification was pre wal mart and there was the reason nothing that the plaintiffs presented that would be a a common answer to the question of we get there on our own shouldn't we at least give her a chance to take a look at the certification issue again i don't think that's necessary because in the case the plaintiffs haven't proven any link between any of the alleged a liability issue because if i if i provide them the opportunity to take it they've got to show that they in fact didn't take it because it's something the employer did and it also representative issue on rule twenty three because this if this person didn't miss any breaks that he wouldn't be a very good representative of a policy even if we did say that this is what california is correct he would have to demonstrate and he had the opportunity to do it and he never did show that any of the things  unable to show even that there was any type of discouraging impeding preventing of a meal or respirator and for that reason she decertified because you can't get a common answer from the representative plaintive as to who all i think that in the first part of the argument i made all the points i want to about why both orders really rest on the district court's erroneous understanding of california law i just want to make clear of questions that the the both the ninth circuit and the california courts of emphasise that you need to look at the plaintiff's theory of the case and understand what the plaintiff's theory of the case is to make an appropriate class want to be perfectly clear i mean we're not asking this court to direct class certification in the first look at actual injuries yeah i think ok so so we're on the same page there i think but if you if you could agree with us that we're right sure i think it is it is correct to say that the california supreme court has has not and we wouldn't be here with this appeal right if if the california supreme court had brittin brinker had decided all of the if you've got a case in which they side bet yes and bradley right and say some courts have done this we express no opinion on this issue it's a little different and you're saying some courts have done they that kind of footnote wouldn't trouble me but why that that seems like a diluted deliberate footnotes and we're still thinking about this one well i mean in candor i don't think all of the case law that we are relying on that's been fleshed out by the california courts of appeals has been adopted by the california supreme court i think that is fair to say but i think again your your task is to decide what california law is as best you can and i also should mention that the from this court cites falcon barry and bradley with approval as california law with respect to certification of the mill and brett resprayed class so i think that that is your precedent and and i think  you if you truly believe that there was a conflict in the california courts of appeals i think you would be justified in certifying the question to the california supreme court but i don't think that this unbroken line of well considered  authority as against a couple of sentences and i don't i've gone back and looked at the daily case which you know i think it's notable that my friends didn't cite that case they didn't cite the case because it doesn't have much of analysis that it barely has a holding on this question of what the affirmative obligation entails and so i think the task for you is to decide do i have enough here to to conclude that the california courts of appeals can can give me  making an eerie prediction i know that the california supreme court has not conclusively decided this question but you know seven california courts of appeals have and they're from different all of the different districts so there isn't a single california district that points in the opposite direction under those circumstances i think you have far more than you typically have when you have to make a difficulty reproductive what do you think the california courts of appeal have said that  militates toward your position dirt roads and i think i would point you in the first instance to the benton case which says that a defendant cannot discharge its affirmative obligation to authorize and permit  through in action i'd point you to the language where they say that this the language of the widgets order imposes an affirmative obligation on every employer to authorize and provide legally required rest breaks and if it fails to do so so what is what you are saying are you saying that what are you saying that the employer failed to do that it should have done if the employer posts them the way to order right and then has  policy or guy that says you should take your meal and rest periods how is that in action well they didn't do those things right they didn't have a policy that says here are the breaks the california law allows you in that says to the drivers take breaks when necessary and at least i have the wrong numbers fifteen minutes every right and that's and that's a policy that's contrary to california law but that's not an action that's well ok it's you know action on the core requirements that i laid out earlier right they didn't with the wage order of those are independent statutory obligations in the record keeping the authorization those are those are all requirements that they did not follow to the extent they did anything here what they did in this is an alternative theory under which we would prevail even  view of the law what they did is to officially vite them violate the laws requirements by saying to the employees well you can take a fifteen minute break every five hours that's the only thing they said about brakes and that was in their orientation manual but that's a third of the br