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1 Larry W. Lee, Bar No. 228175
Max W. Gavron, Bar No. 291697
2 DIVERSITY LAW GROUP
515 S. Figueroa St., Suite 1250
3 Los Angeles, CA 90071
Telephone: (213) 488-6555
4 Facsimile: (213) 488-6554
5 Attorneys for Plaintiff
VICTORIA TICE
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7
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 FOR THE COUNTY OF SANTA BARBARA
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12 VICTORIA TICE, as an individual and on Case No. 20CV00892
behalf of all others similarly situated,
13 PLAINTIFF’S RESPONSE TO
Plaintiff, DEFENDANT’S SEPARATE
14 STATEMENT IN SUPPORT OF
v. MOTION TO QUASH PLAINTIFF’S
15 DEPOSITION SUBPOENA FOR
TRADER JOE’S COMPANY, a California PRODUCTION OF BUSINESS
16 corporation; and DOES 1 through 50, inclusive, RECORDS TO COMDATA, INC.
17 Defendant. Date: August 31, 2022
Time: 10:00 a.m.
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Dept.: 3
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20 Trial Date: February 14, 2023
Complaint Filed: February 14, 2021
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 Pursuant to Pursuant to California Rules of Court, Rule 3.1345, Plaintiff Victoria Tice
2 (“Plaintiff”) submits this Response to Defendant Trader Joe’s Company’s (“Defendants”)
3 Separate Statement in Support of Motion to Quash Plaintiff’s Deposition Subpoena for
4 Production of Business Records to Comdata, Inc.
5 DOCUMENT REQUEST #1
6 Plaintiff’s Request
7 All DOCUMENTS showing, reflecting, or PERTAINING TO any and all transactions,
8 reflecting the Posting Date, Trans Type, Trans Date, Fee Amount of each respective transaction for
9 each account listed in Appendix A1 during the RELEVANT TIME PERIOD.
10 Defendant’s Response
11 The Subpoena lacks any evidence that Plaintiff complied with the privacy rights notice to
12 consumers required under Section 1985.3 nor did Plaintiff engage any third-party administrator to
13 provide notice. Special notice and procedures are required for production of the “personal records”
14 of a “consumer,” to protect that person’s right of privacy. Civ. Proc. Code § 1985.3. Failure to
15 comply with any requirements of Section 1985.3 invalidates the service, such that the custodian of
16 records is under no duty to produce the records sought by the subpoena. Civ. Proc. Code §
17 1985.3(k). When serving a subpoena for consumer records, the consumer whose records are being
18 sought must be served with “a copy of the subpoena; the affidavit supporting the issuance of the
19 subpoena, if any; the notice described in subdivision (e); and proof of service.” Civ. Proc. Code §
20 1985.3(b) This service shall be made “[t]o the consumer personally, or at his or her last known
21 address . . . [n]ot less than 10 days prior to the date for production” and “[a]t least 5 days prior to
22 service upon the custodian of the records . . . .” Id. Here, Plaintiff seeks personal records of former
23 Crew Members in Comdata’s possession. Yet, Plaintiff only served the Subpoena on Comdata and
24 Defendant without the requisite Notice to Consumer. (Velez Decl., 3, Exh. B). Because Plaintiff
25 failed to meet these standards here, and because of the reasons set forth below, the Subpoena should
26 be quashed.
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 1. A Plain Reading of Section 1985.3 Does Not Excuse PAGA Plaintiffs
2 From Consumer Notice Requirements.
3 Despite Plaintiff’s claim that as a PAGA plaintiff she is not subject to the requirements of
4 Section 1985.3, a plain reading of the code section reveals her reliance on Government Code
5 Section 7465 is misplaced. The Court of Appeal has held that, in construing a statute, the Courts
6 should look at the statute and give the language its plain meaning, as follows:
The rules governing statutory construction are well settled. We begin with the
7 fundamental premise that the objective of statutory interpretation is to ascertain and
8 effectuate legislative intent. To determine legislative intent, we turn first to the
words of the statute, giving them their usual and ordinary meaning. When the
9 language of a statute is clear, we need go no further. If the words themselves are
not ambiguous, we presume the Legislature meant what it said, and the statute's plain
10 meaning governs.
11 Young v. California Fish & Game Comm'n, 24 Cal. App. 5th 1178, 1193 (2018).
12 Section 1985.3 provides that the “state or local agencies described in Section 7465 of the
13 Government Code” are not “subpoenaing parties” for the purposes of the code section, and thus,
14 not subject to the consumer notice requirements. Civ. Proc. Code § 1985.3(a)(3). Government
15 Code Section 7465 defines “state agency” as “every state office, officer, department, division,
16 bureau, board, and commission or other state agency, including the Legislature.” Cal. Gov't Code
17 § 7465. Defendant is unaware of any authority extending this definition to individuals that stand
18 as proxies or agents for the state.
19 Moreover, as written, Section 1985.3, in subdivision (j), sets forth an exhaustive list of the
20 types of proceedings under the California Labor Code to which the requirements of Section 1985
21 do not apply. Proceedings under the PAGA are not included in this list. To suggest the Court
22 should write in an exemption for PAGA plaintiffs stretches the parameters of statutory construction.
23 Further, while Defendant recognizes that Section 1985.3 was enacted prior to the enactment of the
24 PAGA in 2004, if the Legislature intended Section 1985.3 to exempt PAGA plaintiffs, it could have
25 written the PAGA into subdivision (j) when Section 1984.5 was subsequently amended in 2005,
26 2006, and 2013. Notably, Section 1985.3 was left undisturbed in this regard. Thus, the only
27 reasonable interpretation of Section 1985.3 is that, because it did not explicitly articulated an
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 //
2 exemption for PAGA plaintiffs in subdivision (j), PAGA plaintiffs are subject to the same consumer
3 notice requirements as other civil litigants.
4 Particularly where highly sensitive personal financial information is at stake, the Court
5 should decline Plaintiff’s invitation to rewrite Section 1985.3. Accordingly, the Subpoena remains
6 invalid for Plaintiff’s failure to provide consumer notice and the Court should quash the Subpoena
7 for its noncompliance with Section 1985.3.
8 2. The Legislative History Of The PAGA Does Not Reveal Any Intent By
9 The Legislature To Exempt PAGA Plaintiffs From The Requirements
10 Of Section 1985.3
11 Plaintiff’s theory is also unsupported by the legislative history of the PAGA. A review of
12 the legislative history of the PAGA does not reveal any intent by the legislature to excuse a PAGA
13 plaintiff from procedural requirements, such as these, which safeguard the privacy rights of the
14 alleged aggrieved employees in a PAGA action. (See Defendants’ Request for Judicial Notice, Ex.
15 A).
16 3. Even State Agencies Must Adhere To The Procedural Requisites Of
17 Section 1985.3.
18 Plaintiff interpretation of Section 1985.3 in conjunction with Government Code Section
19 7465 is misguided as even state agencies are not exempt from the consumer notice requirements of
20 Section 1985.3 save very limited and narrow circumstances. In most civil litigation, state agencies
21 must actually adhere to the consumer notice requirements. Despite its seemingly broad language,
22 Section 1985.3, has been interpreted to exempt state and local governments only when obtaining
23 information from financial institutions concerning their customers. Otherwise, state and local
24 governments must comply with Section 1985.3 in civil litigation, the same as other litigants. Lantz
25 v. Superior Ct., 28 Cal. App. 4th 1839, (1994), disapproved of on other grounds by Williams v.
26 Superior Ct., 3 Cal. 5th 531 (2017), is instructive.
27 In Lantz, the Court of Appeal clarified that Government Code Section 7465 is part of the
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 California Right to Financial Privacy Act (“RFPA”), which “sets forth the mechanism by which a
2 state or local agency conducting a civil or criminal investigation of a customer of a financial
3 institution may attempt to subpoena the customer’s financial records ‘in connection with a civil or
4 criminal investigation of the customer . . . .’” Lantz, 28 Cal. App. 4th at 1851, citing Cal. Gov’t
5 Code § 7471. Because the RFPA preceded the enactment of Section 1985.3, at the time Section
6 1985.3 was enacted, there was already a mechanism in place to seek the financial records at issue
7 in a proceeding under the RFPA. Id. The Court of Appeal concluded, the language in Section
8 1985.3(a)(3), referring to Government Code Section 7465, was an “inartful attempt” by the
9 Legislature to exempt subpoenas already governed by the RFPA. Id. Nothing in the Court’s review
10 of the legislative history of Section 1985.3 suggested another intended interpretation of subdivision
11 (a)(3). “This is not surprising because the interpretation [exempting the state] would appear to
12 be substantially at odds with what appears to be the very objective of the statute—to provide
13 a codified procedure by which a consumer's privacy interest in his or her personal records
14 could be protected.” Id. at 1852 (bold emphasis added).
15 Here, Plaintiff’s proposed construction of Section 1985.3 would lead to absurd results if
16 PAGA plaintiffs, as proxies of the state, were relieved of the consumer notice requirements even
17 while state agencies must adhere to this critical procedural requirement, except for proceedings
18 under RFPA. In other words, Plaintiff cannot avoid the consumer notice requirement by claiming
19 to be a proxy of the state, when the state itself is not actually exempt. Thus, Defendant requests
20 that the Court quash the Subpoena for its failure to adhere to the consumer notice requirements.
21 Plaintiff’s Response
22 The scope of the subpoena is also narrowly tailored because it proposes that the following
23 categories of information would be redacted in the production: Trans Details, Trans City,
24 Amount, and Running Balance except for the first row, which denotes the final wages loaded on
25 the paycard by Defendant. Gavron Decl. ¶ 5. Using Plaintiff’s own records for reference,
26 Plaintiff provides an exemplar of the records requested, with proposed redactions, as Exhibit A to
27 the Gavron Declaration and reproduced here:
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
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7 The information requested only relates to the fees incurred by the Aggrieved Employees, the date
8 of the transaction, and the amount loaded on the paycard. Plaintiff did not request any information
9 that would reveal where individuals spent their money or anything that a reasonable person would
10 understand to be intrusive. On balance, the need for the information outweighs any privacy interest
11 asserted by Defendant on behalf of its former employees.
12 A. Plaintiff Holds the Same Rights As the State in Enforcing the Labor Code
13 Because Plaintiff brings a claim under the PAGA, she stands in the shoes of the State of
14 California in her action to enforce the California Labor Code and holds the same rights and
15 responsibilities. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 384 (2014) (“a
16 PAGA action is a dispute between an employer and the state.”); see also Kim v. Reins Int'l
17 California, Inc., 9 Cal. 5th 73, 86, 459 P.3d 1123, 1130 (2020) (“Accordingly, a PAGA claim is
18 an enforcement action between the LWDA and the employer, with the PAGA plaintiff acting on
19 behalf of the government.”); see also Shaw v. Superior Ct, 78 Cal. App. 5th 245, 255 (2022)
20 (citations omitted) (“Our Supreme Court has made clear that “an action to recover civil penalties
21 [under PAGA] ‘is fundamentally a law enforcement action designed to protect the public and not
22 to benefit private parties’ ”; that “[i]n a lawsuit brought under [PAGA], the employee plaintiff
23 represents the same legal right and interest as state labor law enforcement agencies”; and that “an
24 aggrieved employee's action under [PAGA] functions as a substitute for an action brought by the
25 government itself.”); LaFace v. Ralphs Grocery Co., 75 Cal. App. 5th 388, 397 (2022), review
26 denied (May 11, 2022) (citations omitted) (“Synthesizing these decisions, a PAGA action is an
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 administrative enforcement action conducted in court on behalf of the state by an aggrieved
2 employee who possesses “the same legal right and interest” as the state.”).
3 Even the United States Supreme Court agrees with this premise: “The primary function of
4 PAGA is to delegate a power to employees to assert ‘the same legal right and interest as state
5 law enforcement agencies….’” Viking River, 142 S. Ct. at 1914–15 (emphasis added) (quoting
6 Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009)). Thus, whether Plaintiff is subject to the
7 requirements of Code of Civil Procedure § 1985.3 depends on whether the Labor and Workforce
8 Development Agency (“LWDA”) or Division of Labor Standards Enforcement would be subject
9 to those provisions in an enforcement action.
10 B. The State is Not Subject to Section 1985.3
11 Section 1985.3(a)(3) defines the “Subpoenaing party” as “the person or persons causing a
12 subpoena duces tecum to be issued or served in connection with any civil action or proceeding
13 pursuant to this code, but shall not include the state or local agencies described in Section
14 7465 of the Government Code…” CCP § 1985.3(a)(3) (emphasis added). Section 7465 of the
15 Government Code provides that a “state agency” includes “every state office, officer, department,
16 division, bureau, board, and commission or other state agency…” Cal. Gov’t Code § 7465(e).
17 Accordingly, because Plaintiff acts on behalf of the LWDA in the pursuit of her PAGA claim, she
18 is not a “subpoenaing party” within the meaning of Code of Civil Procedure § 1985.3 and thus
19 does not need to comply with the notice to consumer requirement.
20 Defendant contends that it “is unaware of any authority extending [the definition of ‘state
21 agency’] to individuals that stand as proxies or agents for the state.” Mot. at 7. However, the
22 purpose of the PAGA is to delegate the State’s authority and interests to the aggrieved employee
23 prosecuting the action. It would be nonsensical and redundant to add a qualifier that explicitly
24 stated that an individual acting as a proxy for the state holds the same powers as the state, when
25 that is clearly established in—and the purpose of—the PAGA itself. The simple question for the
26 Court is whether it would require the LWDA to issue a notice to consumer in an enforcement
27 action. If the answer is, “no,” then the Court’s analysis should stop there.
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 Defendant cites Lantz v. Superior Court, 28 Cal. App. 4th 1839 (1994) to argue that
2 “Section 1985.3, has been interpreted to exempt state and local governments only when obtaining
3 information from financial institutions concerning their customers.” Mot. at 8 (emphasis in
4 original). Lantz does not assist Defendant for several reasons. First, in this circumstance,
5 Plaintiff, in the shoes of the LWDA, seeks information “from financial institutions [Comdata]
6 concerning their customers [Aggrieved Employees].” Thus, accepting Defendant’s analysis,
7 Plaintiff is exempt from the notice to consumer requirements and the reasoning of Lantz under
8 these circumstances.
9 Second, the California Supreme Court explicitly disapproved of Lantz in Williams v.
10 Superior Court, 3 Cal. 5th 531, 557 (2017). Williams, 3 Cal. 5th at 557 n. 8.
11 Finally, to the extent Lantz is applicable at all, it is readily distinguishable. Lantz
12 considered a scenario where the plaintiff’s medical records regarding a double mastectomy were
13 subpoenaed by the County of Kern in an employment action alleging sexual harassment against
14 the county and its employees. Lantz, 28 Cal. App. 4th at 1844-46. In analyzing Government
15 Code Section 7465, the court explained that it is part of the California Right to Financial Privacy
16 Act. Id. at 1851. Because the documents sought via subpoena were medical records, the court
17 reasoned that they were not subject to the exemption. Id. at 1852 (“In the present case, the
18 County's attempt to obtain the records pertaining to petitioner and maintained by Dr. Schmidt
19 clearly was not governed by the California Right to Financial Privacy Act. We are here concerned
20 with petitioner’s medical records, not her bank account.”). To the extent Lantz read additional
21 language into the statute when it concluded that the exemption for state agencies only applied in
22 CRFPA actions, it violated a pinnacle of statutory construction. See Walt Disney Parks & Resorts
23 U.S., Inc. v. Superior Ct., 21 Cal. App. 5th 872, 879 (2018) (“Where, as here, the Legislature has
24 chosen to include a phrase in one provision of the statutory scheme, but to omit it in another
25 provision, we presume that the Legislature did not intend the language included in the first to be
26 read into the second.”).
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 The California Supreme Court has also concluded that notice and an opportunity to object
2 may be appropriate in the context of class actions or other representative litigation, such as a suit
3 under the Private Attorneys General Act (PAGA), to address the “minimal privacy interests”
4 involved when the named plaintiff in such an action seeks contact information for other potential
5 class members, percipient witnesses, or other individuals potentially affected by the outcome of
6 the action. Williams v. Superior Court, 3 Cal.5th 531, 538-555 (2017); Pioneer Electronics (USA)
7 v. Superior Court, 40 Cal.4th 360, 363-374 (Cal. 2007). These California Supreme Court cases
8 do not require notice and an opportunity to object in every instance where the right to privacy
9 may be implicated by a Court order to produce documents during a lawsuit. The California
10 Supreme Court in Pioneer Electronics stated: “Protective measures, safeguards and other
11 alternatives may minimize the privacy intrusion. ‘For example, if intrusion is limited and
12 confidential information is carefully shielded from disclosure except to those who have a
13 legitimate need to know, privacy concerns are assuaged.’ [Citation omitted.]” Pioneer
14 Electronics, 40 Cal.4th at 371. Here, the Parties entered a protective order, and Plaintiff has
15 proposed redactions that limit the information to be disclosed pursuant to the subpoena to
16 quantitative information regarding how much Comdata charged a particular account number in
17 fees. Gavron Decl. ¶ 6.
18 To the extent the information obtained from the subpoena is necessary at trial, similar
19 safeguards may be put in place. Id. ¶ 7. For example, Plaintiff would present evidence of how
20 many individuals, without reference to their name, incurred fees as a result of Defendant’s
21 practices. Id. If Plaintiff succeeds in her claims and the Court awards penalties under the PAGA,
22 the Parties would be required to engage a third-party administrator to distribute the aggrieved
23 employees’ share of penalties, and the remainder would be distributed to the State. Id.
24 C. Section 1985.3(j) Does Not Assist Defendant
25 Defendant contends that the exclusions from compliance set forth in Section 1985.3(j) is
26 an “exhaustive list,” but provides no authority to support that point. Section 1985.3(j) was part of
27 the statute when it was enacted in 1999, which predates the PAGA by five years. See Cal. Civ.
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 Proc. Code § 1985.3 (West 1999). That the statute was later amended, as Defendant contends,
2 does not support its position because, even if the Court were to accept Defendant’s interpretation
3 of subsection (j), it does not negate the definition of the “subpoenaing party” articulated in the
4 statute, which specifically excludes the state agency that is the real party in interest here. Shaw,
5 78 Cal. App. 5th at 255 (“The state is always the real party in interest in a PAGA representative
6 suit”); Iskanian, 59 Cal. 4th at 384; see also Kim, 9 Cal. 5th at 86.
7 “[S]tatutes are to be construed to give meaningful effect to all of their provisions, and to
8 avoid rendering any language superfluous….” Planned Parenthood Affiliates v. Van de Kamp,
9 181 Cal. App. 3d 245, 270 (1986). Accepting Defendant’s interpretation would render the
10 definition of “subpoenaing party” superfluous because the exclusion of state agencies would have
11 no meaning. Accordingly, compliance with the notice to consumer requirement is not necessary
12 in this action, governed by the PAGA.
13 DOCUMENT REQUEST #2
14 Plaintiff’s Request
15 All DOCUMENTS owing, reflecting, or PERTAINING TO any and all transactions
16 reflecting the Trans Type “Payroll Load” for each account listed in Appendix A during the
17 RELEVANT TIME PERIOD.
18 Defendant’s Response
19 Here, the Subpoena lacks any evidence that Plaintiff complied with the privacy rights notice
20 to consumers required under Section 1985.3 nor did Plaintiff engage any third-party administrator
21 to provide notice. Special notice and procedures are required for production of the “personal
22 records” of a “consumer,” to protect that person’s right of privacy. Civ. Proc. Code § 1985.3.
23 Failure to comply with any requirements of Section 1985.3 invalidates the service, such that the
24 custodian of records is under no duty to produce the records sought by the subpoena. Civ. Proc.
25 Code § 1985.3(k). When serving a subpoena for consumer records, the consumer whose records
26 are being sought must be served with “a copy of the subpoena; the affidavit supporting the issuance
27 of the subpoena, if any; the notice described in subdivision (e); and proof of service.” Civ. Proc.
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 Code § 1985.3(b) This service shall be made “[t]o the consumer personally, or at his or her last
2 known address . . . [n]ot less than 10 days prior to the date for production” and “[a]t least 5 days
3 prior to service upon the custodian of the records . . . .” Id. Here, Plaintiff seeks personal records
4 of former Crew Members in Comdata’s possession. Yet, Plaintiff only served the Subpoena on
5 Comdata and Defendant without the requisite Notice to Consumer. (Velez Decl., 3, Exh. B).
6 Because Plaintiff failed to meet these standards here, and because of the reasons set forth below,
7 the Subpoena should be quashed.
8 1. A Plain Reading of Section 1985.3 Does Not Excuse PAGA Plaintiffs
9 From Consumer Notice Requirements.
10 Despite Plaintiff’s claim that as a PAGA plaintiff she is not subject to the requirements of
11 Section 1985.3, a plain reading of the code section reveals her reliance on Government Code
12 Section 7465 is misplaced. The Court of Appeal has held that, in construing a statute, the Courts
13 should look at the statute and give the language its plain meaning, as follows:
The rules governing statutory construction are well settled. We begin with the
14 fundamental premise that the objective of statutory interpretation is to ascertain and
15 effectuate legislative intent. To determine legislative intent, we turn first to the
words of the statute, giving them their usual and ordinary meaning. When the
16 language of a statute is clear, we need go no further. If the words themselves are
not ambiguous, we presume the Legislature meant what it said, and the statute's plain
17 meaning governs.
18 Young v. California Fish & Game Comm'n, 24 Cal. App. 5th 1178, 1193 (2018).
19 Section 1985.3 provides that the “state or local agencies described in Section 7465 of the
20 Government Code” are not “subpoenaing parties” for the purposes of the code section, and thus,
21 not subject to the consumer notice requirements. Civ. Proc. Code § 1985.3(a)(3). Government
22 Code Section 7465 defines “state agency” as “every state office, officer, department, division,
23 bureau, board, and commission or other state agency, including the Legislature.” Cal. Gov't Code
24 § 7465. Defendant is unaware of any authority extending this definition to individuals that stand
25 as proxies or agents for the state.
26 Moreover, as written, Section 1985.3, in subdivision (j), sets forth an exhaustive list of the
27 types of proceedings under the California Labor Code to which the requirements of Section 1985
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 do not apply. Proceedings under the PAGA are not included in this list. To suggest the Court
2 should write in an exemption for PAGA plaintiffs stretches the parameters of statutory construction.
3 Further, while Defendant recognizes that Section 1985.3 was enacted prior to the enactment of the
4 PAGA in 2004, if the Legislature intended Section 1985.3 to exempt PAGA plaintiffs, it could have
5 written the PAGA into subdivision (j) when Section 1984.5 was subsequently amended in 2005,
6 2006, and 2013. Notably, Section 1985.3 was left undisturbed in this regard. Thus, the only
7 reasonable interpretation of Section 1985.3 is that, because it did not explicitly articulated an
8 exemption for PAGA plaintiffs in subdivision (j), PAGA plaintiffs are subject to the same consumer
9 notice requirements as other civil litigants.
10 Particularly where highly sensitive personal financial information is at stake, the Court
11 should decline Plaintiff’s invitation to rewrite Section 1985.3. Accordingly, the Subpoena remains
12 invalid for Plaintiff’s failure to provide consumer notice and the Court should quash the Subpoena
13 for its noncompliance with Section 1985.3.
14 2. The Legislative History Of The PAGA Does Not Reveal Any Intent By
15 The Legislature To Exempt PAGA Plaintiffs From The Requirements
16 Of Section 1985.3
17 Plaintiff’s theory is also unsupported by the legislative history of the PAGA. A review of
18 the legislative history of the PAGA does not reveal any intent by the legislature to excuse a PAGA
19 plaintiff from procedural requirements, such as these, which safeguard the privacy rights of the
20 alleged aggrieved employees in a PAGA action. (See Defendants’ Request for Judicial Notice, Ex.
21 A).
22 3. Even State Agencies Must Adhere To The Procedural Requisites Of
23 Section 1985.3.
24 Plaintiff interpretation of Section 1985.3 in conjunction with Government Code Section
25 7465 is misguided as even state agencies are not exempt from the consumer notice requirements of
26 Section 1985.3 save very limited and narrow circumstances. In most civil litigation, state agencies
27 must actually adhere to the consumer notice requirements. Despite its seemingly broad language,
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 Section 1985.3, has been interpreted to exempt state and local governments only when obtaining
2 information from financial institutions concerning their customers. Otherwise, state and local
3 governments must comply with Section 1985.3 in civil litigation, the same as other litigants. Lantz
4 v. Superior Ct., 28 Cal. App. 4th 1839, (1994), disapproved of on other grounds by Williams v.
5 Superior Ct., 3 Cal. 5th 531 (2017), is instructive.
6 In Lantz, the Court of Appeal clarified that Government Code Section 7465 is part of the
7 California Right to Financial Privacy Act (“RFPA”), which “sets forth the mechanism by which a
8 state or local agency conducting a civil or criminal investigation of a customer of a financial
9 institution may attempt to subpoena the customer’s financial records ‘in connection with a civil or
10 criminal investigation of the customer . . . .’” Lantz, 28 Cal. App. 4th at 1851, citing Cal. Gov’t
11 Code § 7471. Because the RFPA preceded the enactment of Section 1985.3, at the time Section
12 1985.3 was enacted, there was already a mechanism in place to seek the financial records at issue
13 in a proceeding under the RFPA. Id. The Court of Appeal concluded, the language in Section
14 1985.3(a)(3), referring to Government Code Section 7465, was an “inartful attempt” by the
15 Legislature to exempt subpoenas already governed by the RFPA. Id. Nothing in the Court’s review
16 of the legislative history of Section 1985.3 suggested another intended interpretation of subdivision
17 (a)(3). “This is not surprising because the interpretation [exempting the state] would appear to
18 be substantially at odds with what appears to be the very objective of the statute—to provide
19 a codified procedure by which a consumer's privacy interest in his or her personal records
20 could be protected.” Id. at 1852 (bold emphasis added).
21 Here, Plaintiff’s proposed construction of Section 1985.3 would lead to absurd results if
22 PAGA plaintiffs, as proxies of the state, were relieved of the consumer notice requirements even
23 while state agencies must adhere to this critical procedural requirement, except for proceedings
24 under RFPA. In other words, Plaintiff cannot avoid the consumer notice requirement by claiming
25 to be a proxy of the state, when the state itself is not actually exempt. Thus, Defendant requests
26 that the Court quash the Subpoena for its failure to adhere to the consumer notice requirements.
27 //
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PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 Plaintiff’s Response
2 The scope of the subpoena is also narrowly tailored because it proposes that the following
3 categories of information would be redacted in the production: Trans Details, Trans City,
4 Amount, and Running Balance except for the first row, which denotes the final wages loaded on
5 the paycard by Defendant. Gavron Decl. ¶ 5. Using Plaintiff’s own records for reference,
6 Plaintiff provides an exemplar of the records requested, with proposed redactions, as Exhibit A to
7 the Gavron Declaration and reproduced here:
8
9
10
11
12
13 The information requested only relates to the fees incurred by the Aggrieved Employees, the date
14 of the transaction, and the amount loaded on the paycard. Plaintiff did not request any information
15 that would reveal where individuals spent their money or anything that a reasonable person would
16 understand to be intrusive. On balance, the need for the information outweighs any privacy interest
17 asserted by Defendant on behalf of its former employees.
18 A. Plaintiff Holds the Same Rights As the State in Enforcing the Labor Code
19 Because Plaintiff brings a claim under the PAGA, she stands in the shoes of the State of
20 California in her action to enforce the California Labor Code and holds the same rights and
21 responsibilities. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 384 (2014) (“a
22 PAGA action is a dispute between an employer and the state.”); see also Kim v. Reins Int'l
23 California, Inc., 9 Cal. 5th 73, 86, 459 P.3d 1123, 1130 (2020) (“Accordingly, a PAGA claim is
24 an enforcement action between the LWDA and the employer, with the PAGA plaintiff acting on
25 behalf of the government.”); see also Shaw v. Superior Ct, 78 Cal. App. 5th 245, 255 (2022)
26 (citations omitted) (“Our Supreme Court has made clear that “an action to recover civil penalties
27 [under PAGA] ‘is fundamentally a law enforcement action designed to protect the public and not
28
14
PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO
QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO
COMDATA, INC.
1 to benefit private parties’ ”; that “[i]n a lawsuit brought under [PAGA], the employee plaintiff
2 represents the same legal right and interest as state labor law enforcement agencies”; and that “an
3 aggrieved employee's action under [PAGA] functions as a substitute for an action
Preview
1 Larry W. Lee, Bar No. 228175 Max W. Gavron, Bar No. 291697 2 DIVERSITY LAW GROUP 515 S. Figueroa St., Suite 1250 3 Los Angeles, CA 90071 Telephone: (213) 488-6555 4 Facsimile: (213) 488-6554 5 Attorneys for Plaintiff VICTORIA TICE 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SANTA BARBARA 11 12 VICTORIA TICE, as an individual and on Case No. 20CV00892 behalf of all others similarly situated, 13 PLAINTIFF’S RESPONSE TO Plaintiff, DEFENDANT’S SEPARATE 14 STATEMENT IN SUPPORT OF v. MOTION TO QUASH PLAINTIFF’S 15 DEPOSITION SUBPOENA FOR TRADER JOE’S COMPANY, a California PRODUCTION OF BUSINESS 16 corporation; and DOES 1 through 50, inclusive, RECORDS TO COMDATA, INC. 17 Defendant. Date: August 31, 2022 Time: 10:00 a.m. 18 Dept.: 3 19 20 Trial Date: February 14, 2023 Complaint Filed: February 14, 2021 21 22 23 24 25 26 27 28 1 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 Pursuant to Pursuant to California Rules of Court, Rule 3.1345, Plaintiff Victoria Tice 2 (“Plaintiff”) submits this Response to Defendant Trader Joe’s Company’s (“Defendants”) 3 Separate Statement in Support of Motion to Quash Plaintiff’s Deposition Subpoena for 4 Production of Business Records to Comdata, Inc. 5 DOCUMENT REQUEST #1 6 Plaintiff’s Request 7 All DOCUMENTS showing, reflecting, or PERTAINING TO any and all transactions, 8 reflecting the Posting Date, Trans Type, Trans Date, Fee Amount of each respective transaction for 9 each account listed in Appendix A1 during the RELEVANT TIME PERIOD. 10 Defendant’s Response 11 The Subpoena lacks any evidence that Plaintiff complied with the privacy rights notice to 12 consumers required under Section 1985.3 nor did Plaintiff engage any third-party administrator to 13 provide notice. Special notice and procedures are required for production of the “personal records” 14 of a “consumer,” to protect that person’s right of privacy. Civ. Proc. Code § 1985.3. Failure to 15 comply with any requirements of Section 1985.3 invalidates the service, such that the custodian of 16 records is under no duty to produce the records sought by the subpoena. Civ. Proc. Code § 17 1985.3(k). When serving a subpoena for consumer records, the consumer whose records are being 18 sought must be served with “a copy of the subpoena; the affidavit supporting the issuance of the 19 subpoena, if any; the notice described in subdivision (e); and proof of service.” Civ. Proc. Code § 20 1985.3(b) This service shall be made “[t]o the consumer personally, or at his or her last known 21 address . . . [n]ot less than 10 days prior to the date for production” and “[a]t least 5 days prior to 22 service upon the custodian of the records . . . .” Id. Here, Plaintiff seeks personal records of former 23 Crew Members in Comdata’s possession. Yet, Plaintiff only served the Subpoena on Comdata and 24 Defendant without the requisite Notice to Consumer. (Velez Decl., 3, Exh. B). Because Plaintiff 25 failed to meet these standards here, and because of the reasons set forth below, the Subpoena should 26 be quashed. 27 // 28 2 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 1. A Plain Reading of Section 1985.3 Does Not Excuse PAGA Plaintiffs 2 From Consumer Notice Requirements. 3 Despite Plaintiff’s claim that as a PAGA plaintiff she is not subject to the requirements of 4 Section 1985.3, a plain reading of the code section reveals her reliance on Government Code 5 Section 7465 is misplaced. The Court of Appeal has held that, in construing a statute, the Courts 6 should look at the statute and give the language its plain meaning, as follows: The rules governing statutory construction are well settled. We begin with the 7 fundamental premise that the objective of statutory interpretation is to ascertain and 8 effectuate legislative intent. To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. When the 9 language of a statute is clear, we need go no further. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain 10 meaning governs. 11 Young v. California Fish & Game Comm'n, 24 Cal. App. 5th 1178, 1193 (2018). 12 Section 1985.3 provides that the “state or local agencies described in Section 7465 of the 13 Government Code” are not “subpoenaing parties” for the purposes of the code section, and thus, 14 not subject to the consumer notice requirements. Civ. Proc. Code § 1985.3(a)(3). Government 15 Code Section 7465 defines “state agency” as “every state office, officer, department, division, 16 bureau, board, and commission or other state agency, including the Legislature.” Cal. Gov't Code 17 § 7465. Defendant is unaware of any authority extending this definition to individuals that stand 18 as proxies or agents for the state. 19 Moreover, as written, Section 1985.3, in subdivision (j), sets forth an exhaustive list of the 20 types of proceedings under the California Labor Code to which the requirements of Section 1985 21 do not apply. Proceedings under the PAGA are not included in this list. To suggest the Court 22 should write in an exemption for PAGA plaintiffs stretches the parameters of statutory construction. 23 Further, while Defendant recognizes that Section 1985.3 was enacted prior to the enactment of the 24 PAGA in 2004, if the Legislature intended Section 1985.3 to exempt PAGA plaintiffs, it could have 25 written the PAGA into subdivision (j) when Section 1984.5 was subsequently amended in 2005, 26 2006, and 2013. Notably, Section 1985.3 was left undisturbed in this regard. Thus, the only 27 reasonable interpretation of Section 1985.3 is that, because it did not explicitly articulated an 28 3 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 // 2 exemption for PAGA plaintiffs in subdivision (j), PAGA plaintiffs are subject to the same consumer 3 notice requirements as other civil litigants. 4 Particularly where highly sensitive personal financial information is at stake, the Court 5 should decline Plaintiff’s invitation to rewrite Section 1985.3. Accordingly, the Subpoena remains 6 invalid for Plaintiff’s failure to provide consumer notice and the Court should quash the Subpoena 7 for its noncompliance with Section 1985.3. 8 2. The Legislative History Of The PAGA Does Not Reveal Any Intent By 9 The Legislature To Exempt PAGA Plaintiffs From The Requirements 10 Of Section 1985.3 11 Plaintiff’s theory is also unsupported by the legislative history of the PAGA. A review of 12 the legislative history of the PAGA does not reveal any intent by the legislature to excuse a PAGA 13 plaintiff from procedural requirements, such as these, which safeguard the privacy rights of the 14 alleged aggrieved employees in a PAGA action. (See Defendants’ Request for Judicial Notice, Ex. 15 A). 16 3. Even State Agencies Must Adhere To The Procedural Requisites Of 17 Section 1985.3. 18 Plaintiff interpretation of Section 1985.3 in conjunction with Government Code Section 19 7465 is misguided as even state agencies are not exempt from the consumer notice requirements of 20 Section 1985.3 save very limited and narrow circumstances. In most civil litigation, state agencies 21 must actually adhere to the consumer notice requirements. Despite its seemingly broad language, 22 Section 1985.3, has been interpreted to exempt state and local governments only when obtaining 23 information from financial institutions concerning their customers. Otherwise, state and local 24 governments must comply with Section 1985.3 in civil litigation, the same as other litigants. Lantz 25 v. Superior Ct., 28 Cal. App. 4th 1839, (1994), disapproved of on other grounds by Williams v. 26 Superior Ct., 3 Cal. 5th 531 (2017), is instructive. 27 In Lantz, the Court of Appeal clarified that Government Code Section 7465 is part of the 28 4 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 California Right to Financial Privacy Act (“RFPA”), which “sets forth the mechanism by which a 2 state or local agency conducting a civil or criminal investigation of a customer of a financial 3 institution may attempt to subpoena the customer’s financial records ‘in connection with a civil or 4 criminal investigation of the customer . . . .’” Lantz, 28 Cal. App. 4th at 1851, citing Cal. Gov’t 5 Code § 7471. Because the RFPA preceded the enactment of Section 1985.3, at the time Section 6 1985.3 was enacted, there was already a mechanism in place to seek the financial records at issue 7 in a proceeding under the RFPA. Id. The Court of Appeal concluded, the language in Section 8 1985.3(a)(3), referring to Government Code Section 7465, was an “inartful attempt” by the 9 Legislature to exempt subpoenas already governed by the RFPA. Id. Nothing in the Court’s review 10 of the legislative history of Section 1985.3 suggested another intended interpretation of subdivision 11 (a)(3). “This is not surprising because the interpretation [exempting the state] would appear to 12 be substantially at odds with what appears to be the very objective of the statute—to provide 13 a codified procedure by which a consumer's privacy interest in his or her personal records 14 could be protected.” Id. at 1852 (bold emphasis added). 15 Here, Plaintiff’s proposed construction of Section 1985.3 would lead to absurd results if 16 PAGA plaintiffs, as proxies of the state, were relieved of the consumer notice requirements even 17 while state agencies must adhere to this critical procedural requirement, except for proceedings 18 under RFPA. In other words, Plaintiff cannot avoid the consumer notice requirement by claiming 19 to be a proxy of the state, when the state itself is not actually exempt. Thus, Defendant requests 20 that the Court quash the Subpoena for its failure to adhere to the consumer notice requirements. 21 Plaintiff’s Response 22 The scope of the subpoena is also narrowly tailored because it proposes that the following 23 categories of information would be redacted in the production: Trans Details, Trans City, 24 Amount, and Running Balance except for the first row, which denotes the final wages loaded on 25 the paycard by Defendant. Gavron Decl. ¶ 5. Using Plaintiff’s own records for reference, 26 Plaintiff provides an exemplar of the records requested, with proposed redactions, as Exhibit A to 27 the Gavron Declaration and reproduced here: 28 5 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 2 3 4 5 6 7 The information requested only relates to the fees incurred by the Aggrieved Employees, the date 8 of the transaction, and the amount loaded on the paycard. Plaintiff did not request any information 9 that would reveal where individuals spent their money or anything that a reasonable person would 10 understand to be intrusive. On balance, the need for the information outweighs any privacy interest 11 asserted by Defendant on behalf of its former employees. 12 A. Plaintiff Holds the Same Rights As the State in Enforcing the Labor Code 13 Because Plaintiff brings a claim under the PAGA, she stands in the shoes of the State of 14 California in her action to enforce the California Labor Code and holds the same rights and 15 responsibilities. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 384 (2014) (“a 16 PAGA action is a dispute between an employer and the state.”); see also Kim v. Reins Int'l 17 California, Inc., 9 Cal. 5th 73, 86, 459 P.3d 1123, 1130 (2020) (“Accordingly, a PAGA claim is 18 an enforcement action between the LWDA and the employer, with the PAGA plaintiff acting on 19 behalf of the government.”); see also Shaw v. Superior Ct, 78 Cal. App. 5th 245, 255 (2022) 20 (citations omitted) (“Our Supreme Court has made clear that “an action to recover civil penalties 21 [under PAGA] ‘is fundamentally a law enforcement action designed to protect the public and not 22 to benefit private parties’ ”; that “[i]n a lawsuit brought under [PAGA], the employee plaintiff 23 represents the same legal right and interest as state labor law enforcement agencies”; and that “an 24 aggrieved employee's action under [PAGA] functions as a substitute for an action brought by the 25 government itself.”); LaFace v. Ralphs Grocery Co., 75 Cal. App. 5th 388, 397 (2022), review 26 denied (May 11, 2022) (citations omitted) (“Synthesizing these decisions, a PAGA action is an 27 28 6 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 administrative enforcement action conducted in court on behalf of the state by an aggrieved 2 employee who possesses “the same legal right and interest” as the state.”). 3 Even the United States Supreme Court agrees with this premise: “The primary function of 4 PAGA is to delegate a power to employees to assert ‘the same legal right and interest as state 5 law enforcement agencies….’” Viking River, 142 S. Ct. at 1914–15 (emphasis added) (quoting 6 Arias v. Superior Court, 46 Cal. 4th 969, 986 (2009)). Thus, whether Plaintiff is subject to the 7 requirements of Code of Civil Procedure § 1985.3 depends on whether the Labor and Workforce 8 Development Agency (“LWDA”) or Division of Labor Standards Enforcement would be subject 9 to those provisions in an enforcement action. 10 B. The State is Not Subject to Section 1985.3 11 Section 1985.3(a)(3) defines the “Subpoenaing party” as “the person or persons causing a 12 subpoena duces tecum to be issued or served in connection with any civil action or proceeding 13 pursuant to this code, but shall not include the state or local agencies described in Section 14 7465 of the Government Code…” CCP § 1985.3(a)(3) (emphasis added). Section 7465 of the 15 Government Code provides that a “state agency” includes “every state office, officer, department, 16 division, bureau, board, and commission or other state agency…” Cal. Gov’t Code § 7465(e). 17 Accordingly, because Plaintiff acts on behalf of the LWDA in the pursuit of her PAGA claim, she 18 is not a “subpoenaing party” within the meaning of Code of Civil Procedure § 1985.3 and thus 19 does not need to comply with the notice to consumer requirement. 20 Defendant contends that it “is unaware of any authority extending [the definition of ‘state 21 agency’] to individuals that stand as proxies or agents for the state.” Mot. at 7. However, the 22 purpose of the PAGA is to delegate the State’s authority and interests to the aggrieved employee 23 prosecuting the action. It would be nonsensical and redundant to add a qualifier that explicitly 24 stated that an individual acting as a proxy for the state holds the same powers as the state, when 25 that is clearly established in—and the purpose of—the PAGA itself. The simple question for the 26 Court is whether it would require the LWDA to issue a notice to consumer in an enforcement 27 action. If the answer is, “no,” then the Court’s analysis should stop there. 28 7 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 Defendant cites Lantz v. Superior Court, 28 Cal. App. 4th 1839 (1994) to argue that 2 “Section 1985.3, has been interpreted to exempt state and local governments only when obtaining 3 information from financial institutions concerning their customers.” Mot. at 8 (emphasis in 4 original). Lantz does not assist Defendant for several reasons. First, in this circumstance, 5 Plaintiff, in the shoes of the LWDA, seeks information “from financial institutions [Comdata] 6 concerning their customers [Aggrieved Employees].” Thus, accepting Defendant’s analysis, 7 Plaintiff is exempt from the notice to consumer requirements and the reasoning of Lantz under 8 these circumstances. 9 Second, the California Supreme Court explicitly disapproved of Lantz in Williams v. 10 Superior Court, 3 Cal. 5th 531, 557 (2017). Williams, 3 Cal. 5th at 557 n. 8. 11 Finally, to the extent Lantz is applicable at all, it is readily distinguishable. Lantz 12 considered a scenario where the plaintiff’s medical records regarding a double mastectomy were 13 subpoenaed by the County of Kern in an employment action alleging sexual harassment against 14 the county and its employees. Lantz, 28 Cal. App. 4th at 1844-46. In analyzing Government 15 Code Section 7465, the court explained that it is part of the California Right to Financial Privacy 16 Act. Id. at 1851. Because the documents sought via subpoena were medical records, the court 17 reasoned that they were not subject to the exemption. Id. at 1852 (“In the present case, the 18 County's attempt to obtain the records pertaining to petitioner and maintained by Dr. Schmidt 19 clearly was not governed by the California Right to Financial Privacy Act. We are here concerned 20 with petitioner’s medical records, not her bank account.”). To the extent Lantz read additional 21 language into the statute when it concluded that the exemption for state agencies only applied in 22 CRFPA actions, it violated a pinnacle of statutory construction. See Walt Disney Parks & Resorts 23 U.S., Inc. v. Superior Ct., 21 Cal. App. 5th 872, 879 (2018) (“Where, as here, the Legislature has 24 chosen to include a phrase in one provision of the statutory scheme, but to omit it in another 25 provision, we presume that the Legislature did not intend the language included in the first to be 26 read into the second.”). 27 28 8 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 The California Supreme Court has also concluded that notice and an opportunity to object 2 may be appropriate in the context of class actions or other representative litigation, such as a suit 3 under the Private Attorneys General Act (PAGA), to address the “minimal privacy interests” 4 involved when the named plaintiff in such an action seeks contact information for other potential 5 class members, percipient witnesses, or other individuals potentially affected by the outcome of 6 the action. Williams v. Superior Court, 3 Cal.5th 531, 538-555 (2017); Pioneer Electronics (USA) 7 v. Superior Court, 40 Cal.4th 360, 363-374 (Cal. 2007). These California Supreme Court cases 8 do not require notice and an opportunity to object in every instance where the right to privacy 9 may be implicated by a Court order to produce documents during a lawsuit. The California 10 Supreme Court in Pioneer Electronics stated: “Protective measures, safeguards and other 11 alternatives may minimize the privacy intrusion. ‘For example, if intrusion is limited and 12 confidential information is carefully shielded from disclosure except to those who have a 13 legitimate need to know, privacy concerns are assuaged.’ [Citation omitted.]” Pioneer 14 Electronics, 40 Cal.4th at 371. Here, the Parties entered a protective order, and Plaintiff has 15 proposed redactions that limit the information to be disclosed pursuant to the subpoena to 16 quantitative information regarding how much Comdata charged a particular account number in 17 fees. Gavron Decl. ¶ 6. 18 To the extent the information obtained from the subpoena is necessary at trial, similar 19 safeguards may be put in place. Id. ¶ 7. For example, Plaintiff would present evidence of how 20 many individuals, without reference to their name, incurred fees as a result of Defendant’s 21 practices. Id. If Plaintiff succeeds in her claims and the Court awards penalties under the PAGA, 22 the Parties would be required to engage a third-party administrator to distribute the aggrieved 23 employees’ share of penalties, and the remainder would be distributed to the State. Id. 24 C. Section 1985.3(j) Does Not Assist Defendant 25 Defendant contends that the exclusions from compliance set forth in Section 1985.3(j) is 26 an “exhaustive list,” but provides no authority to support that point. Section 1985.3(j) was part of 27 the statute when it was enacted in 1999, which predates the PAGA by five years. See Cal. Civ. 28 9 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 Proc. Code § 1985.3 (West 1999). That the statute was later amended, as Defendant contends, 2 does not support its position because, even if the Court were to accept Defendant’s interpretation 3 of subsection (j), it does not negate the definition of the “subpoenaing party” articulated in the 4 statute, which specifically excludes the state agency that is the real party in interest here. Shaw, 5 78 Cal. App. 5th at 255 (“The state is always the real party in interest in a PAGA representative 6 suit”); Iskanian, 59 Cal. 4th at 384; see also Kim, 9 Cal. 5th at 86. 7 “[S]tatutes are to be construed to give meaningful effect to all of their provisions, and to 8 avoid rendering any language superfluous….” Planned Parenthood Affiliates v. Van de Kamp, 9 181 Cal. App. 3d 245, 270 (1986). Accepting Defendant’s interpretation would render the 10 definition of “subpoenaing party” superfluous because the exclusion of state agencies would have 11 no meaning. Accordingly, compliance with the notice to consumer requirement is not necessary 12 in this action, governed by the PAGA. 13 DOCUMENT REQUEST #2 14 Plaintiff’s Request 15 All DOCUMENTS owing, reflecting, or PERTAINING TO any and all transactions 16 reflecting the Trans Type “Payroll Load” for each account listed in Appendix A during the 17 RELEVANT TIME PERIOD. 18 Defendant’s Response 19 Here, the Subpoena lacks any evidence that Plaintiff complied with the privacy rights notice 20 to consumers required under Section 1985.3 nor did Plaintiff engage any third-party administrator 21 to provide notice. Special notice and procedures are required for production of the “personal 22 records” of a “consumer,” to protect that person’s right of privacy. Civ. Proc. Code § 1985.3. 23 Failure to comply with any requirements of Section 1985.3 invalidates the service, such that the 24 custodian of records is under no duty to produce the records sought by the subpoena. Civ. Proc. 25 Code § 1985.3(k). When serving a subpoena for consumer records, the consumer whose records 26 are being sought must be served with “a copy of the subpoena; the affidavit supporting the issuance 27 of the subpoena, if any; the notice described in subdivision (e); and proof of service.” Civ. Proc. 28 10 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 Code § 1985.3(b) This service shall be made “[t]o the consumer personally, or at his or her last 2 known address . . . [n]ot less than 10 days prior to the date for production” and “[a]t least 5 days 3 prior to service upon the custodian of the records . . . .” Id. Here, Plaintiff seeks personal records 4 of former Crew Members in Comdata’s possession. Yet, Plaintiff only served the Subpoena on 5 Comdata and Defendant without the requisite Notice to Consumer. (Velez Decl., 3, Exh. B). 6 Because Plaintiff failed to meet these standards here, and because of the reasons set forth below, 7 the Subpoena should be quashed. 8 1. A Plain Reading of Section 1985.3 Does Not Excuse PAGA Plaintiffs 9 From Consumer Notice Requirements. 10 Despite Plaintiff’s claim that as a PAGA plaintiff she is not subject to the requirements of 11 Section 1985.3, a plain reading of the code section reveals her reliance on Government Code 12 Section 7465 is misplaced. The Court of Appeal has held that, in construing a statute, the Courts 13 should look at the statute and give the language its plain meaning, as follows: The rules governing statutory construction are well settled. We begin with the 14 fundamental premise that the objective of statutory interpretation is to ascertain and 15 effectuate legislative intent. To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. When the 16 language of a statute is clear, we need go no further. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain 17 meaning governs. 18 Young v. California Fish & Game Comm'n, 24 Cal. App. 5th 1178, 1193 (2018). 19 Section 1985.3 provides that the “state or local agencies described in Section 7465 of the 20 Government Code” are not “subpoenaing parties” for the purposes of the code section, and thus, 21 not subject to the consumer notice requirements. Civ. Proc. Code § 1985.3(a)(3). Government 22 Code Section 7465 defines “state agency” as “every state office, officer, department, division, 23 bureau, board, and commission or other state agency, including the Legislature.” Cal. Gov't Code 24 § 7465. Defendant is unaware of any authority extending this definition to individuals that stand 25 as proxies or agents for the state. 26 Moreover, as written, Section 1985.3, in subdivision (j), sets forth an exhaustive list of the 27 types of proceedings under the California Labor Code to which the requirements of Section 1985 28 11 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 do not apply. Proceedings under the PAGA are not included in this list. To suggest the Court 2 should write in an exemption for PAGA plaintiffs stretches the parameters of statutory construction. 3 Further, while Defendant recognizes that Section 1985.3 was enacted prior to the enactment of the 4 PAGA in 2004, if the Legislature intended Section 1985.3 to exempt PAGA plaintiffs, it could have 5 written the PAGA into subdivision (j) when Section 1984.5 was subsequently amended in 2005, 6 2006, and 2013. Notably, Section 1985.3 was left undisturbed in this regard. Thus, the only 7 reasonable interpretation of Section 1985.3 is that, because it did not explicitly articulated an 8 exemption for PAGA plaintiffs in subdivision (j), PAGA plaintiffs are subject to the same consumer 9 notice requirements as other civil litigants. 10 Particularly where highly sensitive personal financial information is at stake, the Court 11 should decline Plaintiff’s invitation to rewrite Section 1985.3. Accordingly, the Subpoena remains 12 invalid for Plaintiff’s failure to provide consumer notice and the Court should quash the Subpoena 13 for its noncompliance with Section 1985.3. 14 2. The Legislative History Of The PAGA Does Not Reveal Any Intent By 15 The Legislature To Exempt PAGA Plaintiffs From The Requirements 16 Of Section 1985.3 17 Plaintiff’s theory is also unsupported by the legislative history of the PAGA. A review of 18 the legislative history of the PAGA does not reveal any intent by the legislature to excuse a PAGA 19 plaintiff from procedural requirements, such as these, which safeguard the privacy rights of the 20 alleged aggrieved employees in a PAGA action. (See Defendants’ Request for Judicial Notice, Ex. 21 A). 22 3. Even State Agencies Must Adhere To The Procedural Requisites Of 23 Section 1985.3. 24 Plaintiff interpretation of Section 1985.3 in conjunction with Government Code Section 25 7465 is misguided as even state agencies are not exempt from the consumer notice requirements of 26 Section 1985.3 save very limited and narrow circumstances. In most civil litigation, state agencies 27 must actually adhere to the consumer notice requirements. Despite its seemingly broad language, 28 12 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 Section 1985.3, has been interpreted to exempt state and local governments only when obtaining 2 information from financial institutions concerning their customers. Otherwise, state and local 3 governments must comply with Section 1985.3 in civil litigation, the same as other litigants. Lantz 4 v. Superior Ct., 28 Cal. App. 4th 1839, (1994), disapproved of on other grounds by Williams v. 5 Superior Ct., 3 Cal. 5th 531 (2017), is instructive. 6 In Lantz, the Court of Appeal clarified that Government Code Section 7465 is part of the 7 California Right to Financial Privacy Act (“RFPA”), which “sets forth the mechanism by which a 8 state or local agency conducting a civil or criminal investigation of a customer of a financial 9 institution may attempt to subpoena the customer’s financial records ‘in connection with a civil or 10 criminal investigation of the customer . . . .’” Lantz, 28 Cal. App. 4th at 1851, citing Cal. Gov’t 11 Code § 7471. Because the RFPA preceded the enactment of Section 1985.3, at the time Section 12 1985.3 was enacted, there was already a mechanism in place to seek the financial records at issue 13 in a proceeding under the RFPA. Id. The Court of Appeal concluded, the language in Section 14 1985.3(a)(3), referring to Government Code Section 7465, was an “inartful attempt” by the 15 Legislature to exempt subpoenas already governed by the RFPA. Id. Nothing in the Court’s review 16 of the legislative history of Section 1985.3 suggested another intended interpretation of subdivision 17 (a)(3). “This is not surprising because the interpretation [exempting the state] would appear to 18 be substantially at odds with what appears to be the very objective of the statute—to provide 19 a codified procedure by which a consumer's privacy interest in his or her personal records 20 could be protected.” Id. at 1852 (bold emphasis added). 21 Here, Plaintiff’s proposed construction of Section 1985.3 would lead to absurd results if 22 PAGA plaintiffs, as proxies of the state, were relieved of the consumer notice requirements even 23 while state agencies must adhere to this critical procedural requirement, except for proceedings 24 under RFPA. In other words, Plaintiff cannot avoid the consumer notice requirement by claiming 25 to be a proxy of the state, when the state itself is not actually exempt. Thus, Defendant requests 26 that the Court quash the Subpoena for its failure to adhere to the consumer notice requirements. 27 // 28 13 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 Plaintiff’s Response 2 The scope of the subpoena is also narrowly tailored because it proposes that the following 3 categories of information would be redacted in the production: Trans Details, Trans City, 4 Amount, and Running Balance except for the first row, which denotes the final wages loaded on 5 the paycard by Defendant. Gavron Decl. ¶ 5. Using Plaintiff’s own records for reference, 6 Plaintiff provides an exemplar of the records requested, with proposed redactions, as Exhibit A to 7 the Gavron Declaration and reproduced here: 8 9 10 11 12 13 The information requested only relates to the fees incurred by the Aggrieved Employees, the date 14 of the transaction, and the amount loaded on the paycard. Plaintiff did not request any information 15 that would reveal where individuals spent their money or anything that a reasonable person would 16 understand to be intrusive. On balance, the need for the information outweighs any privacy interest 17 asserted by Defendant on behalf of its former employees. 18 A. Plaintiff Holds the Same Rights As the State in Enforcing the Labor Code 19 Because Plaintiff brings a claim under the PAGA, she stands in the shoes of the State of 20 California in her action to enforce the California Labor Code and holds the same rights and 21 responsibilities. Iskanian v. CLS Transp. Los Angeles, LLC, 59 Cal. 4th 348, 384 (2014) (“a 22 PAGA action is a dispute between an employer and the state.”); see also Kim v. Reins Int'l 23 California, Inc., 9 Cal. 5th 73, 86, 459 P.3d 1123, 1130 (2020) (“Accordingly, a PAGA claim is 24 an enforcement action between the LWDA and the employer, with the PAGA plaintiff acting on 25 behalf of the government.”); see also Shaw v. Superior Ct, 78 Cal. App. 5th 245, 255 (2022) 26 (citations omitted) (“Our Supreme Court has made clear that “an action to recover civil penalties 27 [under PAGA] ‘is fundamentally a law enforcement action designed to protect the public and not 28 14 PLAINTIFF’S RESPONSE TO DEFENDANT’S SEPARATE STATEMENT IN SUPPORT OF MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS RECORDS TO COMDATA, INC. 1 to benefit private parties’ ”; that “[i]n a lawsuit brought under [PAGA], the employee plaintiff 2 represents the same legal right and interest as state labor law enforcement agencies”; and that “an 3 aggrieved employee's action under [PAGA] functions as a substitute for an action