Zelasko-Barrett v. Brayton-Purcell: Supreme Court Grants Review and Holds Pending Kirby v. Immoos

In Zelasko-Barrett v. Brayton-Purcell, LLP (8/17/11) 198 Cal.App.4th 582, the Court of Appeal held that a law school graduate who was not licensed to practice law but who worked for a law firm and performed tasks customarily performed by junior attorneys was exempt as a learned professional. My post on Zelasko-Barrett is here. I thought the Supreme Court would grant and hold pending its decision in Harris v. Superior Court (12/29/11) --- Cal.4th ----, 2011 WL 6823963, which most people thought would shed light on the white collar exemptions. (As it turned out, Harris shed little light on anything, but that's a different story.)

Yesterday, the Supreme Court did in fact grant review in Zelasko-Barrett, but on a different point. The back story is this: after the Court of Appeal issued its August 17 decision, it issued an unpublished decision (available here) on October 24, 2011, holding that the successful employer could not recover its attorney fees under Labor Code section 218.5. This is at issue in Kirby v. Immoos Fire Protection, Inc., which will address the following:

1. Does Labor Code section 1194 apply to a cause of action alleging meal and rest period violations (Lab. Code 226.7) or may attorney's fees be awarded under Labor Code section 218.5?
2. Is our analysis affected by whether the claims for meal and rest periods are brought alone or are accompanied by claims for minimum wage and overtime?

So Zelasko-Barrett becomes the second Kirby grant-and-hold. The other is In re. UPS Wage and Hour Cases (blogged here). I thought the Court might grant review in Plancich v. United Parcel Service, Inc. (8/11/11) 198 Cal.App.4th 308 (blogged here) in which the Court of Appeal held that while Labor Code section 1194 gives a prevailing employee the right to recover attorney's fees and costs, it "does not contain express language excluding prevailing employers from recovering their costs." Turns out I'm a lousy judge of grant-and-holds. Go figure.

The Supreme Court's Kirby page is here.