Preview
ELECTRONICALLY FILED
Superior Court of California
1 Helene Wasserman, Bar No. 130134 County of Santa Barbara
hwasserman@littler.com Darrel E. Parker, Executive Officer
2 Shannon R. Boyce, Bar No. 229041 8/6/2021 8:57 AM
sboyce@littler.com
3 Melissa Velez, Bar No. 316714 By: Terri Chavez, Deputy
mvelez@littler.com
4 ksambour@littler.com
LITTLER MENDELSON P.C.
5 2049 Century Park East
5th Floor
6 Los Angeles, California 90067.3107
Telephone: 310.553.0308
7 Fax No.: 310.553.5583
8 Attorneys for Defendant
TRADER JOE’S COMPANY
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF SANTA BARBARA
12
13 VICTORIA TICE, as an individual and on Case No. 20CV00892
behalf of all others similarly situated,
14 DEFENDANT’S MEMORANUM OF
Plaintiff, POINTS AND AUTHORITIES IN
15 SUPPORT OF OPPOSITION TO
v. PLAINTIFF’S MOTION FOR CLASS
16 CERTIFICATION
TRADER JOE’S COMPANY, a California
17 corporation; and DOES 1 through 50, inclusive, ASSIGNED FOR ALL PURPOSES TO
JUDGE THOMAS P. ANDERLE, DEPT. 3
18 Defendant.
Date: September 14
19 Time: 10:00 am
Dept: 3
20
Trial Date: None Set
21 Complaint Filed: February 14, 2020
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LITTLER MEND ELSO N P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 TABLE OF CONTENTS
2 PAGE
3 I. INTRODUCTION ................................................................................................................... 6
4 II. FACTUAL BACKGROUND .................................................................................................. 7
5 A. Trader Joe’s Philosophy............................................................................................... 7
6 B. Trader Joe’s Final Pay Practices. ................................................................................. 7
7 C. The Comdata Paycard. ............................................................................................... 10
8 D. Plaintiff Victoria Tice’s Termination For Theft And Refusal To Pick Up Her
Final Pay. ................................................................................................................... 11
9
III. LEGAL ARGUMENT ........................................................................................................... 12
10
A. Tice Cannot Meet The Elements Necessary For Class Certification. ........................ 12
11
B. Tice Impermissibly Seeks To Expand The Class Definition Set Forth In The
12 Complaint................................................................................................................... 13
13 C. Tice Cannot Establish Predominance. ....................................................................... 14
14 1. Tice’s Paycard Class Is Unsuitable For Certification as Trader Joe’s
Practices Are Valid Under California Law. ................................................... 15
15
2. Plaintiff’s Claim Is Not Subject to Common Proof as Any Analysis of
16 the Circumstances Under Which Putative Class Members Consented to
Paycards is Highly Individualized. ................................................................ 17
17
D. The Class Is Not Ascertainable. ................................................................................. 19
18
E. Plaintiff Is Not a Typical or an Adequate Class Representative. ............................... 20
19
F. Tice’s Trial Plan Is Insufficient. ................................................................................ 21
20
IV. CONCLUSION ...................................................................................................................... 23
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2
LITTLER MEND ELSO N P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
TABLE OF AUTHORITIES
(continued)
1 Page
2
3 Cases
4
Arenas v. El Torito Restaurants, Inc.,
5 183 Cal.App.4th 723 (2010) ....................................................................................................15
6 Bartold v. Glendale Fed'l Bank,
81 Cal.App.4th 816 (2000) ......................................................................................................15
7
Bee, Denning, Inc. v. Capital Alliance Group,
8 310 F.R.D. 614 (S.D.Cal. 2015) ..............................................................................................14
9 Block v. Major League Baseball,
10 65 Cal. App. 4th 538 (1998) ....................................................................................................22
11 Brinker Rest. Corp. v. Superior Ct.,
53 Cal. 4th 1004 (2012) .....................................................................................................12, 14
12
Caro v. Procter & Gamble Co.,
13 18 Cal. App. 4th 644 (1993) ....................................................................................................14
14 Cortez v. Saia Motor Freight Line, Inc.,
15 2011 WL 13272400 (C.D. Cal. Sept. 27, 2011) ......................................................................18
16 Duran v. U.S. Bank Nat’l Ass’n,
59 Cal. 4th 1 (2014) .................................................................................................6, 15, 21, 22
17
Garcia v. Sun Pac. Farming Coop.,
18 2008 WL 2073979 (E.D. Cal. May 14, 2008) .........................................................................21
19 Global Minerals & Metals Corp. v. Superior Court,
113 Cal. App. 4th 836 (2003) ..................................................................................................19
20
21 Hale v. Sharpe Healthcare,
232 Cal. App. 4th 50 (2014) ....................................................................................................20
22
Haley v. Medtronic, Inc.,
23 169 F.R.D. 643 (C.D. Cal. 1996) .............................................................................................15
24 Hanon v. Dataproducts Corp.,
976 F.2d 497 (9th Cir. 1992) ...................................................................................................20
25
Holak v. Kmart Corp.,
26
2012 U.S. Dist. LEXIS 176331 (E.D. Cal. December 12, 2012) ............................................16
27
Hypertouch, Inc. v. Superior Court,
28 128 Cal. App. 4th 1527 (2005) ...............................................................................................14
3
LITTLER MEND ELSO N P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
TABLE OF AUTHORITIES
(continued)
1 Page
2
Kizer v. Tristar Risk Management,
3
13 Cal. App. 5th 830 (2017) ....................................................................................................18
4
Lampe v. Queen of the Valley Medical Center,
5 19 Cal. App. 5th 832 (2018) ..............................................................................................13, 18
6 Lao v. H&M Hennes & Mauritz, L.P.,
2018 U.S. Dist. LEXIS 133969 (N.D. Cal. 2018) .............................................................18, 19
7
Lockheed Martin Corp. v. Superior Ct.,
8 29 Cal. 4th 1096 (2003) ...........................................................................................................12
9
Lopez v. Brown,
10 217 Cal. App. 4th 1114 (2013) ................................................................................................14
11 Mies v. Sephora U.S.A, Inc.,
234 Cal. App. 4th, 967, 985 (2015) .........................................................................................22
12
Mora v. Big Lots Stores, Inc.,
13 194 Cal.App.4th 496 (2011) ..............................................................................................15, 22
14
Noel v. Thrifty Payless, Inc.,
15 7 Cal. 5th 955 (2019) ...............................................................................................................19
16 Ortiz v. Randstad,
2015 U.S. Dist. LEXIS 30660 (N.D. Cal. 2015) .....................................................................17
17
Pace v. PetSmart Inc.,
18 2014 U.S. Dist. LEXIS 77727 (C.D. Cal. 2014)......................................................................19
19 Palacio v. Jan & Gail's Care Homes, Inc.,
20 242 Cal. App. 4th 1133 (2015) ................................................................................................15
21 Salazar v. Upland Police Dept.,
116 Cal. App. 4th 934 (2004) ..................................................................................................13
22
Sali v. Universal Health Servs. of Rancho Springs, Inc.,
23 2015 WL 12656937 (C.D. Cal. June 3, 2015) .........................................................................18
24 Sav-On Drug Stores, Inc. v. Superior Court,
34 Cal.4th 319 (2004) ........................................................................................................12, 15
25
26 Scott-George v. Pvh Corp.,
2015 U.S. Dist. LEXIS 157410 (E.D. Cal. 2015) ....................................................................19
27
Simmons v. Ware,
28 213 Cal. App. 4th 1035 (2013) ................................................................................................13
4
LITTLER MEND ELSO N P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
TABLE OF AUTHORITIES
(continued)
1 Page
2
In re Taco Bell Wage & Hour Actions,
3
2011 WL 4479730 (E.D. Cal. Sept. 26, 2011).........................................................................17
4
Wal-Mart Stores, Inc. v. Dukes,
5 131 S. Ct. 2541 (2011) .............................................................................................................21
6 Washington Mutual Bank v. Superior Court,
24 Cal.4th 906 (2001) ........................................................................................................12, 22
7
Statutes
8
California Code of Civil Procedure, § 431.10(b) and (c) ..............................................................14
9
10 California Code of Civil Procedure, § 436 ....................................................................................14
11 California Labor Code § 203 ...................................................................................................15, 17
12 California Labor Code § 212 .......................................................................................15, 16, 18, 20
13 California Labor Code § 212(a) .....................................................................................................16
14 California Labor Code § 213 .............................................................................................15, 18, 20
15 Other Authorities
16
Federal Rule of Civil Procedure 23 ...............................................................................................14
17
18
19
20
21
22
23
24
25
26
27
28
5
LITTLER MEND ELSO N P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 I. INTRODUCTION
2 Contrary to Plaintiff Victoria Tice’s assertions, the lawfulness of Defendant Trader Joe’s
3 Company’s policies is not the central issue in this case. Instead, a review of the practices and
4 guidelines relevant to Plaintiff’s allegations shows that they comply with the law. Trader Joe’s
5 provides final pay to its employees – referred to as Crew Members – on optional paycards.
6 Paycards are fully-funded and ready for immediate use, just like a live check. Importantly, Crew
7 Members can access the complete amount on their paycard without incurring any fees in multiple
8 ways, whether by using in-network ATMs, using the paycard as a credit card, or simply cashing
9 the card out in its entirety at their bank. Funds on a paycard are thus just as easy to access as a live
10 check. Notably, these paycards are optional in nature, as Crew Members are free to request final
11 pay in the form of direct deposit or live check.
12 Recognizing that Trader Joe’s voluntary paycard program is entirely lawful, Plaintiff
13 ultimately seeks not to certify a class pursuant to any common practice or policy, but the inverse.
14 Plaintiff asks this Court to aggregate hundreds of individualized circumstances under which Crew
15 Members received their final pay on paycards, and for whom Trader Joe’s does not have a written
16 consent form on file. However, written consent is not required and there are any number of valid
17 reasons that Trader Joe’s may not be able to produce a signed consent form. Indeed, Crew
18 Members may have taken their signed consent form with them at termination, forms may be
19 misplaced, or Crew Members may have verbally assented to receiving their paycards. There are
20 numerous individualized circumstances, which do not amount to any violation the Labor Code.
21 These individualized issues preclude certification, as there is no method by which Plaintiff can
22 demonstrate liability on common proof. Nor is the class even ascertainable, as the question of
23 consent is inherently subjective. Given the highly individualized nature of Plaintiff’s theory of
24 liability, Plaintiff’s claims cannot be adjudicated (nor the class even properly defined) without
25 individual mini-trials for each alleged putative class member, thereby rendering the case
26 unmanageable and unsuitable for class treatment. Indeed, not surprisingly, Tice fails to present a
27 manageable trial plan to address these individual issues which exist, as required by Duran v. U.S.
28 Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014). For these reasons, and as explained in detail below, Tice’s
LITTLER MEND ELSO N P.C.
2049 C entury Park East
6
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 motion should be denied.
2 II. FACTUAL BACKGROUND
3 A. Trader Joe’s Philosophy.
4 Trader Joe’s is a chain of specialty grocery stores located throughout United States, with a
5 significant presence in California. (Declaration of Lisa Reese (“Reese Decl.”), ¶ 2, filed
6 concurrently herewith). 1 The Company is dedicated to the highest quality of customer satisfaction
7 and employee (“Crew Member”) experience, delivered with a sense of warmth, friendliness, fun,
8 individual pride, and company spirit. (Id.). Trader Joe’s maintains a Company Values Guide, seven
9 values that guide the Company, the first of which is unyielding Integrity. 2 (Deposition of Plaintiff
10 Victoria Tice “Pl. Depo.”, 35:3-36:5, Exh. 1). 3 The definition of Integrity is simple…it means that
11 you treat others as you would like to be treated. (Id.). Plaintiff admits that Trader Joe’s acted with
12 integrity throughout her employment, consistent with its core values. (Pl. Depo., 167:13-16).
13 B. Trader Joe’s Final Pay Practices.
14 Upon separation of employment, Trader Joe’s Crew Members have the option of receiving
15 their final pay via check, direct deposit, or paycard. (Deposition of Lisa Reese (“Reese Depo.”) 4,
16 48:4-14; 50:9-17; Declaration of Melinda Banner (“Banner Decl.”), ¶ 6; Declaration of Peyton
17 Wastler (“Wastler Decl.”), ¶ 4). In practice, if a Crew Member does not request a check or direct
18 deposit for their final wages, the Company issues payment on a paycard. (Reese Depo., 49:19-
19 50:8). Individual stores submit termination pay requests to the payroll department, which then
20 calculates final pay amounts. (Reese Depo., 47:25-48:24; 60:22-63:13). The payroll department
21 then emails the store with the Crew Member’s calculated final wages, final wage statement, and
22 consent form for review and signature. The department also loads the Crew Member’s final pay
23 1
All declarations cited herein are submitted concurrently herewith in Defendant’s Compendium of
24 Evidence in Support of Opposition to Plaintiff’s Motion for Class Certification.
2
“Kaizen!” is also a core value, which establishes the expectation that Trader Joe’s and its Crew
25 Members continually strive for improvement. (Pl. Depo., 35:3-18, 36:6-23, Exh. 1). Consistent
with the concept of Kaizen, Trader Joe’s constantly seeks to evolve and improve its processes.
26 (Reese Depo., 16:9-15)
3
All relevant excerpts of the Deposition of Plaintiff Victoria Tice are attached as Exhibit A to the
27 Declaration of Shannon R. Boyce, filed concurrently herewith, within Defendant’s Compendium
of Evidence.
4
28 All relevant excerpts of the Deposition of Lisa Reese are attached as Exhibit B to the Declaration
of Shannon R. Boyce, filed concurrently herewith, within Defendant’s Compendium of Evidence.
7
LITTLER MEND ELSO N P.C.
Attorneys at Law
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 onto a blank paycard maintained at the store level. 5 (Reese Depo., 63:2-13).
2 Throughout the putative class period, the payroll department has consistently instructed
3 store management to give departing Crew Members their paycard (and contents of paycard
4 envelope, which includes instructions and fee schedule), final pay stub, consent form, and a helpful
5 hints document which provides tips for using the paycard. 6 That said, the payroll department’s
6 guidance has evolved over the class period. While payroll has always provided information on how
7 the forms were to be completed, including expected use of a voluntary written consent form, the
8 payroll department did not explicitly instruct store management to require signature on the consent
9 form in order for a departing Crew Member to take his or her paycard prior to February 2020. While
10 recognizing this “best practice,” Trader Joe’s ultimate objective has always been to ensure its
11 departing Crew Members are paid appropriately and timely. (Reese Decl., ¶ 4; Reese Depo., 59:21-
12 60:5; 117:19-118:15).
13 Prior to February 2020, if a Crew Member refused to sign any documentation, as in the case
14 of an involuntary termination, yet still wanted to take his or her paycard, Captains at individual
15 stores have permitted Crew Members to do so. (Reese Decl., ¶ 5; Reese Depo., 53:21-54:4; 125:7-
16 16; 133:13-134:17). Likewise, while the expected best practice is to obtain a written consent form
17 for receipt of the paycard, individual managers have also permitted verbal consent for receipt of
18 the paycard. (Reese Decl., ¶ 5; Reese Depo., 69:19-70:6). Alternatively, Crew Members may sign
19 a consent form that they then take with them or the form is otherwise lost. (Declaration of Jason
20 Alvira (“Alvira Decl.”), ¶ 8; Declaration of Susan Baklayan (“Baklayan Decl.”), ¶ 2; Banner Decl.,
21 ¶¶ 8-11; Declaration of Sonia Cahill (“Cahill Decl.”), ¶¶ 2-3; Declaration of Kristine Faelz (“Faelz
22 Decl.”), ¶ 2; Declaration of Jason Hammond (“Hammond Decl.”), ¶ 6; Declaration of Andrew
23 Lopez (“Lopez Decl.”), ¶¶ 2-4, 11; Declaration of Donna McArdle (“McArdle Decl.”), ¶¶ 6, 12;
24 Declaration of Douglas Norton (“Norton Decl.”), ¶¶ 2-5; Reese Decl., ¶ 5; Wastler Decl., ¶¶ 5-6).
25
5
26 There may also be circumstances where a Crew Member requests a live check in advance of their
termination or a store informs payroll that they wish to present a departing Crew Member with a
27 paycard, so circumstances may vary. (Reese Depo., 51:10-18, 120:15-22).
6
Following this process is faster for the Crew Member and gives Crew Members the flexibility to
28 work up until their last day. The process itself is not faster for the payroll department versus mailing
a check. (Reese Depo., 64:1-11)
8
LITTLER MEND ELSO N P.C.
Attorneys at Law
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 Trader Joe’s has not historically audited records to ensure all employees have executed written
2 consent forms 7, as the focus has always been on simply ensuring that Crew Members are paid in a
3 timely fashion. (Reese Depo., 116:16-23). Accordingly, the existence of a signed written
4 authorization in Trader Joe’s possession today, is not necessarily indicative of whether the putative
5 class members in the instant case did, or did not, consent to payment of their final wages on a
6 paycard at the time of their termination. (Reese Depo., 55:15-56:9; Alvira Decl., ¶ 8; Baklayan
7 Decl., ¶¶ 2, 7; Banner Decl., ¶¶ 8-11; Cahill Decl., ¶ 3; Faelz Decl., ¶ 2; Hammond Decl., ¶ 6;
8 Lopez Decl., ¶¶ 2-4, 11; McArdle Decl., ¶¶ 6, 12; Norton Decl, ¶¶ 2, 5; Reese Decl., ¶ 5; Wastler
9 Decl., ¶¶ 5-6).
10 In February 2020, the Company provided a more detailed decision tree to store management
11 which explicitly provided that a Crew Member must sign a consent form in order to receive a
12 paycard. 8 (Reese Decl., ¶ 5; Reese Depo., 66:21-67:2; 107:5-24, 110:18-111:11, Exh. 8). Trader
13 Joe’s also updated its paycard consent form in 2020 to include language which explicitly informs
14 Crew Members that signing the consent form is voluntary, and they can request a check in lieu of
15 a paycard if they so wish. The updated paycard consent form was not, as Plaintiff claims, a change
16 in policy. Rather, the Company just updated the form to state in writing the best practices that store
17 management was expected to follow throughout the putative class period. (Reese Decl., ¶ 6; Reese
18 Depo., 79:8-24, 90:7-90:25, 93:15-94:23, Exhs. 4, 5). Indeed, long before any updates were made
19 to the consent form, Crew Members exercised the option to request checks in lieu of paycards if
20 they so wished. (Reese Decl., ¶ 6; Reese Depo., 86:2-7; 87:23-88:6).
21 If a Crew Member chooses to sign a consent form, as over 12,000 Crew Members have
22 done over the course of the relevant time period, the Crew Member receives a paycard. (Banner
23 Decl., ¶ 6; Lopez Decl., ¶¶ 2-6; McArdle Decl., ¶¶ 6, 11; Reese Decl., ¶ 7; Wastler Decl., ¶ 4).
24 Contemporaneous with their paycard and consent form, stores are instructed to provide Crew
25 7
Stores are requested to return signed consent forms by emailing a copy or putting the forms in
26 interoffice mail. Once received at the main office, forms are supposed to be scanned into PDFs
and stored in computer directors. (Reese Depo., 58:21-59:12).
8
27 Previously, email instructions were provided to stores with documents for management to share
with departing Crew Members, including paycard consent forms. Members of management were
28 expected to have verbal discussions with Crew Members regarding the voluntary nature of the
consent form and the ability to request a paper check, if preferred. (Reese Depo. 113:1-114:12).
9
LITTLER MEND ELSO N P.C.
Attorneys at Law
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 Members with their final wage statement and pay card instructions, including withdrawal
2 instructions, cash-out instructions, and helpful hints on use of the paycard. (See, e.g., Alvira Decl.,
3 ¶ 4; Banner Decl., ¶¶ 2-6; Hammond Decl., ¶¶ 4-5; McArdle Decl., ¶¶ 3-6; Reese Decl., ¶ 6; Wastler
4 Decl., ¶ 3; Pl. Depo., 89:21-91:5, 115:3-22, Exh. 7 (acknowledging she received all such materials).
5 If a Crew Member declines the paycard, or fails to come into the store to pick up their final pay,
6 stores are directed to contact the Company’s payroll department so that checks can be mailed to the
7 Crew Member’s home address. (Reese Depo., 50:9-17; 53:6-13, 107:5-108:6, 110:18-111:1, Exh.
8 8)
9 C. The Comdata Paycard.
10 Trader Joe’s provides Crew Members with Comdata paycards. Trader Joe’s uses paycards
11 at termination because the process is faster and gives the Crew Member flexibility to work up until
12 their last day (without compromising the Company’s ability to pay in a timely fashion). (Reese
13 Depo., 64:1-11). Trader Joe’s receives no monetary benefit from issuance of the paycards. (Reese
14 Depo., 105:2-9). 9
15 The paycard is fully-funded and ready for immediate use. There are multiple avenues by
16 which a Crew Member can use the paycard without incurring any fees. First, there is no fee for
17 “in-network” ATM transactions at the more than 58,000 ATMs in the Allpoint network. Locations
18 can be easily identified and located through the Comdata prepaid mobile application, the Allpoint
19 website (www.allpointnetwork.com), or by calling the toll-free customer service number. Nor is
20 there is a fee for using the paycard as a credit card when making purchases. (Reese Depo., 141:8-
21 141:22; Baklayan Decl., ¶¶ 4-6; Faelz Decl., ¶ 4; McArdle Decl., ¶¶ 8-11). Finally, Crew Members
22 may also access funds at any participating Mastercard bank locations. Crew Members need just
23 verify their balance by calling the customer service number and may then withdraw the complete
24 balance, or a portion thereof. Crew Members may withdraw the entirety of their final pay without
25 any fee. (Baklayan Decl., ¶¶ 4-6; Cahill Decl., ¶¶ 4-5; Faelz Decl., ¶ 4; Lopez Decl., ¶¶ 7-10;
26 Norton Decl., ¶¶ 3-4; Reese Decl., ¶ 8, Exh. A.).
27
9
28 For example, Trader Joe’s does not receive any monetary benefit from the fees that users of the
paycards might incur. (Reese Depo., 105:2-9)
10
LITTLER MEND ELSO N P.C.
Attorneys at Law
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 D. Plaintiff Victoria Tice’s Termination For Theft And Refusal To Pick Up Her
Final Pay.
2
Plaintiff worked at a Trader Joe’s location in Santa Barbara from March 2011 to January
3
2020, at which time she was terminated for repeated violation of Trader Joe’s inventory procedures.
4
(Pl. Depo. 40:5-8; 72:4-75:15, 78:19-81:7, 85:3-86:10, Exhs. 4, 5). 10 Specifically, Plaintiff was
5
terminated after repeated warnings not to eat food that she had not purchased, which was often
6
destined for area food banks. She received a written warning for this conduct, which is the
7
equivalent of theft from the Company, in December 2019. She was then terminated a month later
8
when she again violated inventory protocols. (Pl. Depo., 72:4-7, 74:12-75:15, 76:7-16, 76:24-77:2,
9
Exhs. 4, 5).
10
Plaintiff was initially suspended prior to her termination. (Pl. Depo., 80:24-81:10; 84:1-
11
16). When contacted to come to the store location the following Monday, she refused to do so and
12
instead demanded that her manager mail her final paperwork, including her final pay. (Pl. Depo.,
13
85:3-86:15). In accordance with her request, Plaintiff’s final pay was mailed to her attention.
14
Indeed, her manager sent her final pay via overnight mail that same day. 11 (Pl. Depo., 138:1-12,
15
167:17-168:1, Exh. 8). Plaintiff admits that her final wages of $717.47 were accurate. (Pl. Depo.,
16
96:9-98:3).
17
Plaintiff received not just the paycard, but also informational materials regarding how to
18
activate the card, fee information, and bank cash out instruction (for which there is no fee) (Pl.
19
Depo., 89:21-91:5, 115:3-22, Exh. 7). Having received these instructions, Plaintiff understood that
20
she could cash out her paycard at her bank without incurring any fees. (Pl. Depo., 116:4-8, 136:7-
21
13, Exh. 7). She also understood that she would not be charged any fees for in-network ATM
22
withdrawals. (Pl. Depo., 136:4-6). She also could have used the paycard as a credit card, which
23
requires a signature, instead of an ATM card, which requires use of a PIN. 12 (Pl. Depo., 153:13-
24
10
25 She was hired as a Crew Member before becoming a mate in 2015. (Pl. Depo., 44:9-23). As a
mate, Plaintiff had responsibility for interviewing, hiring, onboarding, scheduling, disciplinary
26 actions, and participated in terminations. (Pl. Depo., 47:15-46:4).
11
Plaintiff still has the packaging from this mailing. When asked why she kept packaging and, in
27 fact, took a picture of it, her counsel objected on grounds of privilege and instructed his client not
to answer. (Pl. Depo., 138:24-139:9).
12
28 Indeed, had she done so, she would not have incurred any fee in making her February 9th purchase
at Trader Joe’s, as highlighted in her moving papers. (Reese Depo., 141:3-22).
11
LITTLER MEND ELSO N P.C.
Attorneys at Law
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 25). While Plaintiff still has a balance on her paycard of $4.27, she acknowledges that she could
2 access the amount in full if she wanted to do so. (Pl. Depo., 156:19-157:19).
3 While Plaintiff now claims that she did not consent to receive her final wages on a paycard,
4 she never contacted anyone at Trader Joe’s to object or request a different form of payment. (Pl.
5 Depo., 98:4-8, 98:17-21). Instead, Plaintiff sought legal counsel within mere days of her
6 termination. (Pl. Depo., 100:19-101:1). 13 Notably, the reason that she sought out counsel was not
7 because of anything associated with her final pay, but because she believed she was unfairly
8 terminated. (Pl. Depo., 101:2-102:22).
9 III. LEGAL ARGUMENT
10 A. Tice Cannot Meet The Elements Necessary For Class Certification.
11 To obtain certification, Plaintiff must establish: (1) a well-defined community of interest;
12 (2) existence of an ascertainable and sufficiently numerous class; and (3) that class adjudication is
13 superior. Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1021 (2012). “The ‘community of
14 interest’ requirement embodies three factors: (1) predominant common questions of law or fact; (2)
15 class representatives with claims or defenses typical of the class; and (3) class representatives who
16 can adequately represent the class.” Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319,
17 326 (2004).
18 “‘[E]ach member must not be required to individually litigate numerous and substantial
19 questions to determine his [or her] right to recover following the class judgment … .’” Washington
20 Mutual Bank v. Superior Court, 24 Cal.4th 906, 913 (2001). “‘[T]he issues which may be jointly
21 tried, when compared with those requiring separate adjudication, must be sufficiently numerous
22 and substantial to make the class action advantageous to the judicial process and to the litigants.’”
23 Id. at pp. 913–914. Tice must present “substantial evidence” satisfying each of these factors.
24 Lockheed Martin Corp. v. Superior Ct., 29 Cal. 4th 1096, 1106 (2003). As set forth in detail below,
25 Tice cannot do so.
26
27
13
28 Plaintiff thus had already retained counsel at the time she used her paycard and, coincidentally,
maintained all receipts for her purchases.
12
LITTLER MEND ELSO N P.C.
Attorneys at Law
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION
1 B. Tice Impermissibly Seeks To Expand The Class Definition Set Forth In The
Complaint.
2
Plaintiff seeks to certify a class that is materially different than the definition alleged in the
3
operative Complaint. As set forth in the Complaint, the proposed class Plaintiff sought to certify
4
consisted of the following:
5
All former employees who were employed by Defendants in the State of
6 California at any time from February 14, 2017, through the present, whose
employment was separated for any reason (voluntary or involuntary),
7 including without limitation, resignation, termination, and/or lay-off, and
who were paid wages via a non-paycard method during their employment
8 but upon separation of employment received their final wages in the form of
a paycard (the “Class”).
9
10 Complaint, ¶ 17(a). Despite previously providing this definition, without ever seeking to
11 amend her complaint, Tice now seeks to certify a broader class of putative class members which
12 includes those employees who may have elected to receive their normal payroll wages on a paycard
13 during this employment. See Plaintiff’s Motion, p. 15:23-28; Notice of Motion, ¶ 2 (seeking to
14 certify class defined as “[a]ll former employees who were employed by Defendants in the State of
15 California at any time from February 14, 2017, through the present, and who were paid on paycards
16 at the time of separation of employment for whom Defendant does not have a written authorization
17 for payment via paycard”).
18 “The lack of connection between the complaint and the class[] appellants seek to certify
19 provides a basis for denial of the certification motion.” Lampe v. Queen of the Valley Medica
Preview
ELECTRONICALLY FILED Superior Court of California 1 Helene Wasserman, Bar No. 130134 County of Santa Barbara hwasserman@littler.com Darrel E. Parker, Executive Officer 2 Shannon R. Boyce, Bar No. 229041 8/6/2021 8:57 AM sboyce@littler.com 3 Melissa Velez, Bar No. 316714 By: Terri Chavez, Deputy mvelez@littler.com 4 ksambour@littler.com LITTLER MENDELSON P.C. 5 2049 Century Park East 5th Floor 6 Los Angeles, California 90067.3107 Telephone: 310.553.0308 7 Fax No.: 310.553.5583 8 Attorneys for Defendant TRADER JOE’S COMPANY 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF SANTA BARBARA 12 13 VICTORIA TICE, as an individual and on Case No. 20CV00892 behalf of all others similarly situated, 14 DEFENDANT’S MEMORANUM OF Plaintiff, POINTS AND AUTHORITIES IN 15 SUPPORT OF OPPOSITION TO v. PLAINTIFF’S MOTION FOR CLASS 16 CERTIFICATION TRADER JOE’S COMPANY, a California 17 corporation; and DOES 1 through 50, inclusive, ASSIGNED FOR ALL PURPOSES TO JUDGE THOMAS P. ANDERLE, DEPT. 3 18 Defendant. Date: September 14 19 Time: 10:00 am Dept: 3 20 Trial Date: None Set 21 Complaint Filed: February 14, 2020 22 23 24 25 26 27 28 LITTLER MEND ELSO N P.C. 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 TABLE OF CONTENTS 2 PAGE 3 I. INTRODUCTION ................................................................................................................... 6 4 II. FACTUAL BACKGROUND .................................................................................................. 7 5 A. Trader Joe’s Philosophy............................................................................................... 7 6 B. Trader Joe’s Final Pay Practices. ................................................................................. 7 7 C. The Comdata Paycard. ............................................................................................... 10 8 D. Plaintiff Victoria Tice’s Termination For Theft And Refusal To Pick Up Her Final Pay. ................................................................................................................... 11 9 III. LEGAL ARGUMENT ........................................................................................................... 12 10 A. Tice Cannot Meet The Elements Necessary For Class Certification. ........................ 12 11 B. Tice Impermissibly Seeks To Expand The Class Definition Set Forth In The 12 Complaint................................................................................................................... 13 13 C. Tice Cannot Establish Predominance. ....................................................................... 14 14 1. Tice’s Paycard Class Is Unsuitable For Certification as Trader Joe’s Practices Are Valid Under California Law. ................................................... 15 15 2. Plaintiff’s Claim Is Not Subject to Common Proof as Any Analysis of 16 the Circumstances Under Which Putative Class Members Consented to Paycards is Highly Individualized. ................................................................ 17 17 D. The Class Is Not Ascertainable. ................................................................................. 19 18 E. Plaintiff Is Not a Typical or an Adequate Class Representative. ............................... 20 19 F. Tice’s Trial Plan Is Insufficient. ................................................................................ 21 20 IV. CONCLUSION ...................................................................................................................... 23 21 22 23 24 25 26 27 28 2 LITTLER MEND ELSO N P.C. 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION TABLE OF AUTHORITIES (continued) 1 Page 2 3 Cases 4 Arenas v. El Torito Restaurants, Inc., 5 183 Cal.App.4th 723 (2010) ....................................................................................................15 6 Bartold v. Glendale Fed'l Bank, 81 Cal.App.4th 816 (2000) ......................................................................................................15 7 Bee, Denning, Inc. v. Capital Alliance Group, 8 310 F.R.D. 614 (S.D.Cal. 2015) ..............................................................................................14 9 Block v. Major League Baseball, 10 65 Cal. App. 4th 538 (1998) ....................................................................................................22 11 Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004 (2012) .....................................................................................................12, 14 12 Caro v. Procter & Gamble Co., 13 18 Cal. App. 4th 644 (1993) ....................................................................................................14 14 Cortez v. Saia Motor Freight Line, Inc., 15 2011 WL 13272400 (C.D. Cal. Sept. 27, 2011) ......................................................................18 16 Duran v. U.S. Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014) .................................................................................................6, 15, 21, 22 17 Garcia v. Sun Pac. Farming Coop., 18 2008 WL 2073979 (E.D. Cal. May 14, 2008) .........................................................................21 19 Global Minerals & Metals Corp. v. Superior Court, 113 Cal. App. 4th 836 (2003) ..................................................................................................19 20 21 Hale v. Sharpe Healthcare, 232 Cal. App. 4th 50 (2014) ....................................................................................................20 22 Haley v. Medtronic, Inc., 23 169 F.R.D. 643 (C.D. Cal. 1996) .............................................................................................15 24 Hanon v. Dataproducts Corp., 976 F.2d 497 (9th Cir. 1992) ...................................................................................................20 25 Holak v. Kmart Corp., 26 2012 U.S. Dist. LEXIS 176331 (E.D. Cal. December 12, 2012) ............................................16 27 Hypertouch, Inc. v. Superior Court, 28 128 Cal. App. 4th 1527 (2005) ...............................................................................................14 3 LITTLER MEND ELSO N P.C. 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION TABLE OF AUTHORITIES (continued) 1 Page 2 Kizer v. Tristar Risk Management, 3 13 Cal. App. 5th 830 (2017) ....................................................................................................18 4 Lampe v. Queen of the Valley Medical Center, 5 19 Cal. App. 5th 832 (2018) ..............................................................................................13, 18 6 Lao v. H&M Hennes & Mauritz, L.P., 2018 U.S. Dist. LEXIS 133969 (N.D. Cal. 2018) .............................................................18, 19 7 Lockheed Martin Corp. v. Superior Ct., 8 29 Cal. 4th 1096 (2003) ...........................................................................................................12 9 Lopez v. Brown, 10 217 Cal. App. 4th 1114 (2013) ................................................................................................14 11 Mies v. Sephora U.S.A, Inc., 234 Cal. App. 4th, 967, 985 (2015) .........................................................................................22 12 Mora v. Big Lots Stores, Inc., 13 194 Cal.App.4th 496 (2011) ..............................................................................................15, 22 14 Noel v. Thrifty Payless, Inc., 15 7 Cal. 5th 955 (2019) ...............................................................................................................19 16 Ortiz v. Randstad, 2015 U.S. Dist. LEXIS 30660 (N.D. Cal. 2015) .....................................................................17 17 Pace v. PetSmart Inc., 18 2014 U.S. Dist. LEXIS 77727 (C.D. Cal. 2014)......................................................................19 19 Palacio v. Jan & Gail's Care Homes, Inc., 20 242 Cal. App. 4th 1133 (2015) ................................................................................................15 21 Salazar v. Upland Police Dept., 116 Cal. App. 4th 934 (2004) ..................................................................................................13 22 Sali v. Universal Health Servs. of Rancho Springs, Inc., 23 2015 WL 12656937 (C.D. Cal. June 3, 2015) .........................................................................18 24 Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319 (2004) ........................................................................................................12, 15 25 26 Scott-George v. Pvh Corp., 2015 U.S. Dist. LEXIS 157410 (E.D. Cal. 2015) ....................................................................19 27 Simmons v. Ware, 28 213 Cal. App. 4th 1035 (2013) ................................................................................................13 4 LITTLER MEND ELSO N P.C. 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION TABLE OF AUTHORITIES (continued) 1 Page 2 In re Taco Bell Wage & Hour Actions, 3 2011 WL 4479730 (E.D. Cal. Sept. 26, 2011).........................................................................17 4 Wal-Mart Stores, Inc. v. Dukes, 5 131 S. Ct. 2541 (2011) .............................................................................................................21 6 Washington Mutual Bank v. Superior Court, 24 Cal.4th 906 (2001) ........................................................................................................12, 22 7 Statutes 8 California Code of Civil Procedure, § 431.10(b) and (c) ..............................................................14 9 10 California Code of Civil Procedure, § 436 ....................................................................................14 11 California Labor Code § 203 ...................................................................................................15, 17 12 California Labor Code § 212 .......................................................................................15, 16, 18, 20 13 California Labor Code § 212(a) .....................................................................................................16 14 California Labor Code § 213 .............................................................................................15, 18, 20 15 Other Authorities 16 Federal Rule of Civil Procedure 23 ...............................................................................................14 17 18 19 20 21 22 23 24 25 26 27 28 5 LITTLER MEND ELSO N P.C. 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 I. INTRODUCTION 2 Contrary to Plaintiff Victoria Tice’s assertions, the lawfulness of Defendant Trader Joe’s 3 Company’s policies is not the central issue in this case. Instead, a review of the practices and 4 guidelines relevant to Plaintiff’s allegations shows that they comply with the law. Trader Joe’s 5 provides final pay to its employees – referred to as Crew Members – on optional paycards. 6 Paycards are fully-funded and ready for immediate use, just like a live check. Importantly, Crew 7 Members can access the complete amount on their paycard without incurring any fees in multiple 8 ways, whether by using in-network ATMs, using the paycard as a credit card, or simply cashing 9 the card out in its entirety at their bank. Funds on a paycard are thus just as easy to access as a live 10 check. Notably, these paycards are optional in nature, as Crew Members are free to request final 11 pay in the form of direct deposit or live check. 12 Recognizing that Trader Joe’s voluntary paycard program is entirely lawful, Plaintiff 13 ultimately seeks not to certify a class pursuant to any common practice or policy, but the inverse. 14 Plaintiff asks this Court to aggregate hundreds of individualized circumstances under which Crew 15 Members received their final pay on paycards, and for whom Trader Joe’s does not have a written 16 consent form on file. However, written consent is not required and there are any number of valid 17 reasons that Trader Joe’s may not be able to produce a signed consent form. Indeed, Crew 18 Members may have taken their signed consent form with them at termination, forms may be 19 misplaced, or Crew Members may have verbally assented to receiving their paycards. There are 20 numerous individualized circumstances, which do not amount to any violation the Labor Code. 21 These individualized issues preclude certification, as there is no method by which Plaintiff can 22 demonstrate liability on common proof. Nor is the class even ascertainable, as the question of 23 consent is inherently subjective. Given the highly individualized nature of Plaintiff’s theory of 24 liability, Plaintiff’s claims cannot be adjudicated (nor the class even properly defined) without 25 individual mini-trials for each alleged putative class member, thereby rendering the case 26 unmanageable and unsuitable for class treatment. Indeed, not surprisingly, Tice fails to present a 27 manageable trial plan to address these individual issues which exist, as required by Duran v. U.S. 28 Bank Nat’l Ass’n, 59 Cal. 4th 1 (2014). For these reasons, and as explained in detail below, Tice’s LITTLER MEND ELSO N P.C. 2049 C entury Park East 6 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 motion should be denied. 2 II. FACTUAL BACKGROUND 3 A. Trader Joe’s Philosophy. 4 Trader Joe’s is a chain of specialty grocery stores located throughout United States, with a 5 significant presence in California. (Declaration of Lisa Reese (“Reese Decl.”), ¶ 2, filed 6 concurrently herewith). 1 The Company is dedicated to the highest quality of customer satisfaction 7 and employee (“Crew Member”) experience, delivered with a sense of warmth, friendliness, fun, 8 individual pride, and company spirit. (Id.). Trader Joe’s maintains a Company Values Guide, seven 9 values that guide the Company, the first of which is unyielding Integrity. 2 (Deposition of Plaintiff 10 Victoria Tice “Pl. Depo.”, 35:3-36:5, Exh. 1). 3 The definition of Integrity is simple…it means that 11 you treat others as you would like to be treated. (Id.). Plaintiff admits that Trader Joe’s acted with 12 integrity throughout her employment, consistent with its core values. (Pl. Depo., 167:13-16). 13 B. Trader Joe’s Final Pay Practices. 14 Upon separation of employment, Trader Joe’s Crew Members have the option of receiving 15 their final pay via check, direct deposit, or paycard. (Deposition of Lisa Reese (“Reese Depo.”) 4, 16 48:4-14; 50:9-17; Declaration of Melinda Banner (“Banner Decl.”), ¶ 6; Declaration of Peyton 17 Wastler (“Wastler Decl.”), ¶ 4). In practice, if a Crew Member does not request a check or direct 18 deposit for their final wages, the Company issues payment on a paycard. (Reese Depo., 49:19- 19 50:8). Individual stores submit termination pay requests to the payroll department, which then 20 calculates final pay amounts. (Reese Depo., 47:25-48:24; 60:22-63:13). The payroll department 21 then emails the store with the Crew Member’s calculated final wages, final wage statement, and 22 consent form for review and signature. The department also loads the Crew Member’s final pay 23 1 All declarations cited herein are submitted concurrently herewith in Defendant’s Compendium of 24 Evidence in Support of Opposition to Plaintiff’s Motion for Class Certification. 2 “Kaizen!” is also a core value, which establishes the expectation that Trader Joe’s and its Crew 25 Members continually strive for improvement. (Pl. Depo., 35:3-18, 36:6-23, Exh. 1). Consistent with the concept of Kaizen, Trader Joe’s constantly seeks to evolve and improve its processes. 26 (Reese Depo., 16:9-15) 3 All relevant excerpts of the Deposition of Plaintiff Victoria Tice are attached as Exhibit A to the 27 Declaration of Shannon R. Boyce, filed concurrently herewith, within Defendant’s Compendium of Evidence. 4 28 All relevant excerpts of the Deposition of Lisa Reese are attached as Exhibit B to the Declaration of Shannon R. Boyce, filed concurrently herewith, within Defendant’s Compendium of Evidence. 7 LITTLER MEND ELSO N P.C. Attorneys at Law 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 onto a blank paycard maintained at the store level. 5 (Reese Depo., 63:2-13). 2 Throughout the putative class period, the payroll department has consistently instructed 3 store management to give departing Crew Members their paycard (and contents of paycard 4 envelope, which includes instructions and fee schedule), final pay stub, consent form, and a helpful 5 hints document which provides tips for using the paycard. 6 That said, the payroll department’s 6 guidance has evolved over the class period. While payroll has always provided information on how 7 the forms were to be completed, including expected use of a voluntary written consent form, the 8 payroll department did not explicitly instruct store management to require signature on the consent 9 form in order for a departing Crew Member to take his or her paycard prior to February 2020. While 10 recognizing this “best practice,” Trader Joe’s ultimate objective has always been to ensure its 11 departing Crew Members are paid appropriately and timely. (Reese Decl., ¶ 4; Reese Depo., 59:21- 12 60:5; 117:19-118:15). 13 Prior to February 2020, if a Crew Member refused to sign any documentation, as in the case 14 of an involuntary termination, yet still wanted to take his or her paycard, Captains at individual 15 stores have permitted Crew Members to do so. (Reese Decl., ¶ 5; Reese Depo., 53:21-54:4; 125:7- 16 16; 133:13-134:17). Likewise, while the expected best practice is to obtain a written consent form 17 for receipt of the paycard, individual managers have also permitted verbal consent for receipt of 18 the paycard. (Reese Decl., ¶ 5; Reese Depo., 69:19-70:6). Alternatively, Crew Members may sign 19 a consent form that they then take with them or the form is otherwise lost. (Declaration of Jason 20 Alvira (“Alvira Decl.”), ¶ 8; Declaration of Susan Baklayan (“Baklayan Decl.”), ¶ 2; Banner Decl., 21 ¶¶ 8-11; Declaration of Sonia Cahill (“Cahill Decl.”), ¶¶ 2-3; Declaration of Kristine Faelz (“Faelz 22 Decl.”), ¶ 2; Declaration of Jason Hammond (“Hammond Decl.”), ¶ 6; Declaration of Andrew 23 Lopez (“Lopez Decl.”), ¶¶ 2-4, 11; Declaration of Donna McArdle (“McArdle Decl.”), ¶¶ 6, 12; 24 Declaration of Douglas Norton (“Norton Decl.”), ¶¶ 2-5; Reese Decl., ¶ 5; Wastler Decl., ¶¶ 5-6). 25 5 26 There may also be circumstances where a Crew Member requests a live check in advance of their termination or a store informs payroll that they wish to present a departing Crew Member with a 27 paycard, so circumstances may vary. (Reese Depo., 51:10-18, 120:15-22). 6 Following this process is faster for the Crew Member and gives Crew Members the flexibility to 28 work up until their last day. The process itself is not faster for the payroll department versus mailing a check. (Reese Depo., 64:1-11) 8 LITTLER MEND ELSO N P.C. Attorneys at Law 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 Trader Joe’s has not historically audited records to ensure all employees have executed written 2 consent forms 7, as the focus has always been on simply ensuring that Crew Members are paid in a 3 timely fashion. (Reese Depo., 116:16-23). Accordingly, the existence of a signed written 4 authorization in Trader Joe’s possession today, is not necessarily indicative of whether the putative 5 class members in the instant case did, or did not, consent to payment of their final wages on a 6 paycard at the time of their termination. (Reese Depo., 55:15-56:9; Alvira Decl., ¶ 8; Baklayan 7 Decl., ¶¶ 2, 7; Banner Decl., ¶¶ 8-11; Cahill Decl., ¶ 3; Faelz Decl., ¶ 2; Hammond Decl., ¶ 6; 8 Lopez Decl., ¶¶ 2-4, 11; McArdle Decl., ¶¶ 6, 12; Norton Decl, ¶¶ 2, 5; Reese Decl., ¶ 5; Wastler 9 Decl., ¶¶ 5-6). 10 In February 2020, the Company provided a more detailed decision tree to store management 11 which explicitly provided that a Crew Member must sign a consent form in order to receive a 12 paycard. 8 (Reese Decl., ¶ 5; Reese Depo., 66:21-67:2; 107:5-24, 110:18-111:11, Exh. 8). Trader 13 Joe’s also updated its paycard consent form in 2020 to include language which explicitly informs 14 Crew Members that signing the consent form is voluntary, and they can request a check in lieu of 15 a paycard if they so wish. The updated paycard consent form was not, as Plaintiff claims, a change 16 in policy. Rather, the Company just updated the form to state in writing the best practices that store 17 management was expected to follow throughout the putative class period. (Reese Decl., ¶ 6; Reese 18 Depo., 79:8-24, 90:7-90:25, 93:15-94:23, Exhs. 4, 5). Indeed, long before any updates were made 19 to the consent form, Crew Members exercised the option to request checks in lieu of paycards if 20 they so wished. (Reese Decl., ¶ 6; Reese Depo., 86:2-7; 87:23-88:6). 21 If a Crew Member chooses to sign a consent form, as over 12,000 Crew Members have 22 done over the course of the relevant time period, the Crew Member receives a paycard. (Banner 23 Decl., ¶ 6; Lopez Decl., ¶¶ 2-6; McArdle Decl., ¶¶ 6, 11; Reese Decl., ¶ 7; Wastler Decl., ¶ 4). 24 Contemporaneous with their paycard and consent form, stores are instructed to provide Crew 25 7 Stores are requested to return signed consent forms by emailing a copy or putting the forms in 26 interoffice mail. Once received at the main office, forms are supposed to be scanned into PDFs and stored in computer directors. (Reese Depo., 58:21-59:12). 8 27 Previously, email instructions were provided to stores with documents for management to share with departing Crew Members, including paycard consent forms. Members of management were 28 expected to have verbal discussions with Crew Members regarding the voluntary nature of the consent form and the ability to request a paper check, if preferred. (Reese Depo. 113:1-114:12). 9 LITTLER MEND ELSO N P.C. Attorneys at Law 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 Members with their final wage statement and pay card instructions, including withdrawal 2 instructions, cash-out instructions, and helpful hints on use of the paycard. (See, e.g., Alvira Decl., 3 ¶ 4; Banner Decl., ¶¶ 2-6; Hammond Decl., ¶¶ 4-5; McArdle Decl., ¶¶ 3-6; Reese Decl., ¶ 6; Wastler 4 Decl., ¶ 3; Pl. Depo., 89:21-91:5, 115:3-22, Exh. 7 (acknowledging she received all such materials). 5 If a Crew Member declines the paycard, or fails to come into the store to pick up their final pay, 6 stores are directed to contact the Company’s payroll department so that checks can be mailed to the 7 Crew Member’s home address. (Reese Depo., 50:9-17; 53:6-13, 107:5-108:6, 110:18-111:1, Exh. 8 8) 9 C. The Comdata Paycard. 10 Trader Joe’s provides Crew Members with Comdata paycards. Trader Joe’s uses paycards 11 at termination because the process is faster and gives the Crew Member flexibility to work up until 12 their last day (without compromising the Company’s ability to pay in a timely fashion). (Reese 13 Depo., 64:1-11). Trader Joe’s receives no monetary benefit from issuance of the paycards. (Reese 14 Depo., 105:2-9). 9 15 The paycard is fully-funded and ready for immediate use. There are multiple avenues by 16 which a Crew Member can use the paycard without incurring any fees. First, there is no fee for 17 “in-network” ATM transactions at the more than 58,000 ATMs in the Allpoint network. Locations 18 can be easily identified and located through the Comdata prepaid mobile application, the Allpoint 19 website (www.allpointnetwork.com), or by calling the toll-free customer service number. Nor is 20 there is a fee for using the paycard as a credit card when making purchases. (Reese Depo., 141:8- 21 141:22; Baklayan Decl., ¶¶ 4-6; Faelz Decl., ¶ 4; McArdle Decl., ¶¶ 8-11). Finally, Crew Members 22 may also access funds at any participating Mastercard bank locations. Crew Members need just 23 verify their balance by calling the customer service number and may then withdraw the complete 24 balance, or a portion thereof. Crew Members may withdraw the entirety of their final pay without 25 any fee. (Baklayan Decl., ¶¶ 4-6; Cahill Decl., ¶¶ 4-5; Faelz Decl., ¶ 4; Lopez Decl., ¶¶ 7-10; 26 Norton Decl., ¶¶ 3-4; Reese Decl., ¶ 8, Exh. A.). 27 9 28 For example, Trader Joe’s does not receive any monetary benefit from the fees that users of the paycards might incur. (Reese Depo., 105:2-9) 10 LITTLER MEND ELSO N P.C. Attorneys at Law 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 D. Plaintiff Victoria Tice’s Termination For Theft And Refusal To Pick Up Her Final Pay. 2 Plaintiff worked at a Trader Joe’s location in Santa Barbara from March 2011 to January 3 2020, at which time she was terminated for repeated violation of Trader Joe’s inventory procedures. 4 (Pl. Depo. 40:5-8; 72:4-75:15, 78:19-81:7, 85:3-86:10, Exhs. 4, 5). 10 Specifically, Plaintiff was 5 terminated after repeated warnings not to eat food that she had not purchased, which was often 6 destined for area food banks. She received a written warning for this conduct, which is the 7 equivalent of theft from the Company, in December 2019. She was then terminated a month later 8 when she again violated inventory protocols. (Pl. Depo., 72:4-7, 74:12-75:15, 76:7-16, 76:24-77:2, 9 Exhs. 4, 5). 10 Plaintiff was initially suspended prior to her termination. (Pl. Depo., 80:24-81:10; 84:1- 11 16). When contacted to come to the store location the following Monday, she refused to do so and 12 instead demanded that her manager mail her final paperwork, including her final pay. (Pl. Depo., 13 85:3-86:15). In accordance with her request, Plaintiff’s final pay was mailed to her attention. 14 Indeed, her manager sent her final pay via overnight mail that same day. 11 (Pl. Depo., 138:1-12, 15 167:17-168:1, Exh. 8). Plaintiff admits that her final wages of $717.47 were accurate. (Pl. Depo., 16 96:9-98:3). 17 Plaintiff received not just the paycard, but also informational materials regarding how to 18 activate the card, fee information, and bank cash out instruction (for which there is no fee) (Pl. 19 Depo., 89:21-91:5, 115:3-22, Exh. 7). Having received these instructions, Plaintiff understood that 20 she could cash out her paycard at her bank without incurring any fees. (Pl. Depo., 116:4-8, 136:7- 21 13, Exh. 7). She also understood that she would not be charged any fees for in-network ATM 22 withdrawals. (Pl. Depo., 136:4-6). She also could have used the paycard as a credit card, which 23 requires a signature, instead of an ATM card, which requires use of a PIN. 12 (Pl. Depo., 153:13- 24 10 25 She was hired as a Crew Member before becoming a mate in 2015. (Pl. Depo., 44:9-23). As a mate, Plaintiff had responsibility for interviewing, hiring, onboarding, scheduling, disciplinary 26 actions, and participated in terminations. (Pl. Depo., 47:15-46:4). 11 Plaintiff still has the packaging from this mailing. When asked why she kept packaging and, in 27 fact, took a picture of it, her counsel objected on grounds of privilege and instructed his client not to answer. (Pl. Depo., 138:24-139:9). 12 28 Indeed, had she done so, she would not have incurred any fee in making her February 9th purchase at Trader Joe’s, as highlighted in her moving papers. (Reese Depo., 141:3-22). 11 LITTLER MEND ELSO N P.C. Attorneys at Law 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 25). While Plaintiff still has a balance on her paycard of $4.27, she acknowledges that she could 2 access the amount in full if she wanted to do so. (Pl. Depo., 156:19-157:19). 3 While Plaintiff now claims that she did not consent to receive her final wages on a paycard, 4 she never contacted anyone at Trader Joe’s to object or request a different form of payment. (Pl. 5 Depo., 98:4-8, 98:17-21). Instead, Plaintiff sought legal counsel within mere days of her 6 termination. (Pl. Depo., 100:19-101:1). 13 Notably, the reason that she sought out counsel was not 7 because of anything associated with her final pay, but because she believed she was unfairly 8 terminated. (Pl. Depo., 101:2-102:22). 9 III. LEGAL ARGUMENT 10 A. Tice Cannot Meet The Elements Necessary For Class Certification. 11 To obtain certification, Plaintiff must establish: (1) a well-defined community of interest; 12 (2) existence of an ascertainable and sufficiently numerous class; and (3) that class adjudication is 13 superior. Brinker Rest. Corp. v. Superior Ct., 53 Cal. 4th 1004, 1021 (2012). “The ‘community of 14 interest’ requirement embodies three factors: (1) predominant common questions of law or fact; (2) 15 class representatives with claims or defenses typical of the class; and (3) class representatives who 16 can adequately represent the class.” Sav-On Drug Stores, Inc. v. Superior Court, 34 Cal.4th 319, 17 326 (2004). 18 “‘[E]ach member must not be required to individually litigate numerous and substantial 19 questions to determine his [or her] right to recover following the class judgment … .’” Washington 20 Mutual Bank v. Superior Court, 24 Cal.4th 906, 913 (2001). “‘[T]he issues which may be jointly 21 tried, when compared with those requiring separate adjudication, must be sufficiently numerous 22 and substantial to make the class action advantageous to the judicial process and to the litigants.’” 23 Id. at pp. 913–914. Tice must present “substantial evidence” satisfying each of these factors. 24 Lockheed Martin Corp. v. Superior Ct., 29 Cal. 4th 1096, 1106 (2003). As set forth in detail below, 25 Tice cannot do so. 26 27 13 28 Plaintiff thus had already retained counsel at the time she used her paycard and, coincidentally, maintained all receipts for her purchases. 12 LITTLER MEND ELSO N P.C. Attorneys at Law 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION FOR CLASS CERTIFICATION 1 B. Tice Impermissibly Seeks To Expand The Class Definition Set Forth In The Complaint. 2 Plaintiff seeks to certify a class that is materially different than the definition alleged in the 3 operative Complaint. As set forth in the Complaint, the proposed class Plaintiff sought to certify 4 consisted of the following: 5 All former employees who were employed by Defendants in the State of 6 California at any time from February 14, 2017, through the present, whose employment was separated for any reason (voluntary or involuntary), 7 including without limitation, resignation, termination, and/or lay-off, and who were paid wages via a non-paycard method during their employment 8 but upon separation of employment received their final wages in the form of a paycard (the “Class”). 9 10 Complaint, ¶ 17(a). Despite previously providing this definition, without ever seeking to 11 amend her complaint, Tice now seeks to certify a broader class of putative class members which 12 includes those employees who may have elected to receive their normal payroll wages on a paycard 13 during this employment. See Plaintiff’s Motion, p. 15:23-28; Notice of Motion, ¶ 2 (seeking to 14 certify class defined as “[a]ll former employees who were employed by Defendants in the State of 15 California at any time from February 14, 2017, through the present, and who were paid on paycards 16 at the time of separation of employment for whom Defendant does not have a written authorization 17 for payment via paycard”). 18 “The lack of connection between the complaint and the class[] appellants seek to certify 19 provides a basis for denial of the certification motion.” Lampe v. Queen of the Valley Medica