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Bates v. Rubio's Restaurants

November 30, 2009


Appeal from an order of the Superior Court of Orange County, Thierry Patrick Colaw, Judge. Affirmed. (Super. Ct. Nos. 01CC00231 & 01CC00319).

The opinion of the court was delivered by: Moore, J.



The parties in this wage and hour class action litigation entered into a $7.5 million settlement agreement, providing for three payments of $2.5 million to approved class members. After the initial $2.5 million payment was distributed among 529 approved class members, defendant and appellant Rubio's Restaurants, Inc. (Rubio's) realized it had not provided the names of all potential class members to the settlement administrator. One hundred forty potential class members had not received notification of the settlement.

After postjudgment briefing and status conferences, the court ruled that the 140 late-identified class members should receive notice and be folded into the settlement agreement. Later, the judge reconsidered his ruling sua sponte and vacated it. In the same minute order, the judge, citing Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(i), then recused himself from any further proceedings in the matter, in the interests of justice.

Named plaintiffs Kerry Bartlett (Bartlett) and Justin Bates (Bates), the respondents herein, contend the appeal must be dismissed as taken from a non-appealable order. We reject this contention. The order in question is a postjudgment order from which an appeal may be taken. (Code Civ. Proc., § 904.1, subd. (a)(2).)

Where the merits of the appeal are concerned, Rubio's contends that inasmuch as the judge was disqualified from hearing the matter, he did not have the authority to reconsider and vacate his ruling with respect to the treatment of the 140 late-identified class members. In other words, Rubio's wants the earlier ruling concerning those persons to stand. However, the judge did not, as Rubio's suggests, simultaneously disqualify himself and vacate his prior ruling. Rather, the judge undertook a sequential process. First, he reconsidered his ruling with respect to the 140 late-identified class members, and chose to vacate that ruling. Second, having both ruled and "unruled," so to speak, with respect to those persons, the judge chose to recuse himself in the interests of justice. He had the authority to do so and his actions were not improper just because both rulings were contained within the body of a single minute order.

A judge, when taking actions sequentially, is not required to issue a separate minute order with respect to each respective action, and to file the minute orders one at a time. More specifically, if a judge makes one ruling in a case and thereafter chooses to recuse himself or herself from taking further action, he or she is not retroactively disqualified from taking the former action solely because both rulings are contained in one minute order. If the judge were disqualified under the law at the time he or she made the first ruling, that would be another thing altogether. But when the judge is not disqualified at the time of making the first ruling, the first ruling does not become void just because the judge later disqualifies himself or herself in the interests of justice and encapsulates both rulings in one minute order.

We also reject the secondary argument of Rubio's that the order vacating the prior ruling about the 140 late-identified class members must be reversed because the judge erred in his reasoning. Rubio's has failed to address the judge's power to reconsider his own orders sua sponte and has failed to address the standard of review on appeal. The two-part order appealed from is affirmed in its entirety.


Bartlett and Bates commenced wage and hour class action lawsuits against Rubio's in 2001, and the lawsuits were later consolidated. A class action settlement was reached in March 2007. Under the terms of the settlement agreement, Rubio's agreed to pay a total of $7.5 million, in three $2.5 million payments. The monies were to be paid to two sets of class members, comprised of assistant managers and general managers.

In April 2007, Rubio's sent the settlement administrator a list identifying 865 potential class members. The settlement administrator then notified those persons of their rights under the settlement agreement. Five hundred twenty-nine persons submitted valid claims, including 508 persons who had received notice from the settlement administrator and 21 who had not received notice but who nonetheless had learned of the settlement and had demonstrated their status as eligible class members.

In June 2007, the court, by judgment, approved the settlement agreement. The judgment stated in part: "This Court will have continuing jurisdiction over this matter until all obligations outlined in the Settlement Agreement have been complied with and thereafter if any issues pertaining to this case and/or settlement arise."

Rubio's made the first $2.5 million payment, and the monies were disbursed to the class members holding valid claims. The problems arose thereafter when, in December 2007, Rubio's learned that it had omitted 161 names from the list of potential class members it had delivered to the settlement administrator in April. Twenty-one of those persons had already identified themselves to the settlement administrator and were already participating in the settlement. The treatment of the remaining 140 persons vis-...-vis the settlement agreement is now at issue, albeit in a circuitous way.

The parties having been unsuccessful in reaching agreement as to how to handle the matter, Rubio's, in May 2008, informed the court of the problem. It also alerted the court to the fact that the second $2.5 million payment was coming due in December 2008. The court held ...

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