I think that when there's a split of authority in the Court of Appeal and your opinion come out on one side of the split, you should usually publish the opinion. So I agree with the (belated) decision to publish this one. The Court of Appeal says that the cost-shifting provisions of CCP 998 don't apply to the one-way fee and cost-shifting provisions of the Labor Code. I'm agnostic (for the moment) on whether that's right or wrong, but since there's a split in the Court of Appeal on that point, the opinion merits publication.
I was, however, somewhat disappointed at a particular omission (on a different point) in the Court of Appeal's opinion. Appellant's main argument was that the award of over $47,000 in attorney's fees was improper given that the plaintiff obtained a result at trial that was less than the jurisdictional minimum of unlimited jurisdiction cases in superior court ($25,000). Yet despite giving a plethora of numbers in the opinion, Justice Aaron never reveals how much the plaintiff actually received at trial. Was it $24,000? $5,000? 3? I would think that'd matter in deciding whether an award of $47,000 in fees was an abuse of discretion? I had to go back to the briefs to look it up: a little over $10,500. (I get why that number may not have been important when the opinion was unpublished, since all the parties knew it already, but it's fairly important once the opinion is published: it adds substantial color -- and additional merit -- to the bases for the Court of Appeal's holding.)
One more (admittedly tangential) point. The opinion is written by Justice Aaron, and Justice O'Rourke (Acting P.J) is on the panel. Yet the decision to publish is signed not by the author of the opinion, but rather by Justice O'Rourke. Is that really the way things work in the Court of Appeal? Maybe so. It's not the way it works in the Ninth Circuit, in which any author gets to decide whether to publish the thing. (I know that CRC 8.1105(b) says that the "majority of the court" gets to decide whether or not to publish, but I had always thought it was the author who signed the publication order, rather than the P.J. Guess not.)
