Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Darrel E. Parker, Executive Officer
1 Helene Wasserman, Bar No. 130134 8/24/2022 2:43 PM
hwasserman@littler.com By: Narzralli Baksh, Deputy
2 Shannon R. Boyce, Bar No. 229041
sboyce@littler.com
3 Melissa Velez, Bar No. 316714
mvelez@littler.com
4 LITTLER MENDELSON P.C.
2049 Century Park East
5 5th Floor
Los Angeles, California 90067.3107
6 Telephone: 310.553.0308
Fax No.: 310.553.5583
7
Attorneys for Defendant
8 TRADER JOE’S COMPANY
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
13 behalf of all others similarly situated,
REPLY IN SUPPORT OF DEFENDANT
14 Plaintiff, TRADER JOE’S COMPANY’S
MOTION TO QUASH PLAINTIFF’S
15 v. DEPOSITION SUBPOENA FOR
PRODUCTION OF BUSINESS
16 TRADER JOE’S COMPANY, a California RECORDS TO COMDATA, INC.
corporation; and DOES 1 through 50, inclusive,
17 ASSIGNED FOR ALL PURPOSES TO
Defendant. JUDGE THOMAS P. ANDERLE, DEPT. 3
18
Date: August 31, 2022
19 Time: 10:00 a.m.
Dept.: 3
20
Trial Date: February 14, 2023
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
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 I. INTRODUCTION
2 The law is clear: Private Attorney General Act Plaintiffs (“PAGA”) are not exempt from
3 providing notice to consumer under California Code of Civil Procedure Section 1985.3. Plaintiff
4 Victoria Tice’s (“Plaintiff”) procedurally defective Deposition Subpoena for Production of
5 Business Records (“Subpoena”) issued to Comdata, Inc. (“Comdata”) is nothing more than an
6 attempt to skirt her obligations under California Code of Civil Procedure Section 1985.3.
7 As an initial matter, the Court of Appeal in Lantz v. Superior Ct., 28 Cal. App. 4th 1839
8 (1994). concisely sets forth the legislative intent behind Section 1985.3 and its interplay with
9 Government Code Section 7465. Because Government Code Section 7465 stems from the
10 California Right to Financial Privacy Act (“RFPA”) and preceded the enactment of Section 1985.3,
11 at the time Section 1985.3 was enacted, there was already a mechanism in place to seek the financial
12 records at issue in a proceeding under the RFPA. Lantz explained that the reference to Government
13 Code Section 7465 was an “inartful attempt” by the Legislature to exempt subpoenas already
14 governed by the RFPA and not a blanket exemption for all state agencies. Thus, Plaintiff cannot
15 avoid the consumer notice requirement by claiming to be a proxy of the state, when the state itself
16 is not actually exempt.
17 Still, Plaintiff makes futile efforts to undermine the Lantz holding and maintains that only
18 if the Labor and Workforce Development Agency (“LWDA”) or Division of Labor Standards
19 Enforcement (“DLSE”) are subject to the provisions of Section 1985.3, then would Plaintiff also
20 need to satisfy the notice requirements. Critically, however, the California Administrative
21 Procedure Act instructs that subpoenas issues by administrative agencies, such as the DLSE, are
22 subject to the provisions and requirements of Section 1985.3, as is Plaintiff.
23 Additionally, the inquiry and analysis as to the applicability of Section 1985.3 is not
24 dependent on the severity of the privacy intrusion that would result with the records produced or
25 the safeguards a party may implement. Rather, the consumer notice requirement is compulsory
26 under Section 1985.3 when, as here, the personal records sought, the consumers, and the
27 subpoenaing party are subject to the definitions of Section 1985.3.
28 //
LITTLER MEND ELSO N P.C.
2049 C entury Park East
2
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 Accordingly, without the requisite notice to consumers the Subpoena is invalid. Trader
2 Joe’s Company (“Trader Joe’s” or “Defendant”) respectfully requests that the Court ensure
3 Plaintiff’s compliance with this critical procedure by granting this Motion to quash the Subpoena.
4 II. LEGAL ARGUMENT
5 A. State Agencies Must Adhere To The Procedural Requisites Of Section 1985.3
6 As Must Plaintiff.
7 The Court of Appeal in Lantz v. Superior Ct., 28 Cal. App. 4th 1839 (1994), laid out a clear
8 history and overview of the legislative intent behind Section 1985.3 and its interplay with
9 Government Code Section 7465 of the California Right to Financial Privacy Act (“RFPA”). In
10 sum, the Court of Appeal held that state agencies must adhere to the procedural requisites of Section
11 1985.3. Plaintiff must also abide by Section 1985.3, and her failure to do so renders the Comdata
12 Subpoena invalid despite her efforts to undercut the Court of Appeal’s interpretation.
13 In Lantz, the Court of Appeal clarified that Government Code Section 7465 is part of the
14 RFPA, which “sets forth the mechanism by which a state or local agency conducting a civil or
15 criminal investigation of a customer of a financial institution may attempt to subpoena the
16 customer’s financial records ‘in connection with a civil or criminal investigation of the customer. .
17 . .’” Lantz, 28 Cal. App. 4th at 1851, citing Cal. Gov’t Code § 7471. Section 1985.3(a)(3)
18 seemingly exempts the “state or local agencies described in Section 7465 of the Government Code
19 . . . ” from compliance with the requisite notice to consumer. A further look at Government Code
20 Section 7465, however, reveals that it does not provide an all-purpose definition for “state agency”
21 or “local agency.” Rather, its definitions for “state agency” and “local agency” arise in the unique
22 context of the RFPA. See Cal. Gov’t. Code § 7465 (“For the purposes of this chapter . . . The term
23 “state agency” means every state office, officer, department, division, bureau, board, and
24 commission or other state agency, including the Legislature.”); Cal. Gov’t. Code § 7460 (“This
25 chapter shall be known as the “California Right to Financial Privacy Act.””). Lantz explains that
26 because the RFPA preceded the enactment of Section 1985.3, at the time Section 1985.3 was
27 enacted, there was already a mechanism in place to seek the financial records at issue in a
28 proceeding under the RFPA. Lantz, 28 Cal. App. 4th at 1851. Lantz reasoned that the Legislature
LITTLER MEND ELSO N P.C.
Attorneys at Law
3
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 did not intend to enact a statute containing a wholesale exemption for cities, counties, and other
2 state and local agencies. Accordingly, a PAGA Plaintiff standing in as a proxy for the State would
3 not be entitled to an exemption that the State does not enjoy. Plaintiff still clings to her argument
4 although, for the following reasons, she fails at her attempt to undercut Defendant’s reliance on
5 Lantz.
6 First, Plaintiff argues that because she seeks customer information from a financial
7 institution, she is somehow exempt from the notice to consumer requirements and the reasoning in
8 Lantz. Plaintiff’s analysis is reductive and incomplete. Lantz clarifies that Government Code
9 section 7465, upon which Plaintiff relies to claim an all-encompassing exemption for government
10 agencies from the requirements of section 1985.3, is part of the RFPA. The RFPA provides a
11 mechanism by which state or local agencies can obtain financial information from financial
12 institutions concerning their customers in a civil or criminal investigation of the customer. The
13 information Plaintiff seeks here does not arise in the context of an RFPA civil or criminal
14 investigation. Thus, Plaintiff is not exempt from the notice to consumer requirements nor can she
15 rely on the subpoena mechanism in the RFPA.
16 Second, As Defendant pointed out in its Motion, Williams disapproved of Lantz on other
17 grounds related to its examination of the compelling interest test for a privacy analysis. Williams
18 v. Superior Ct., 3 Cal. 5th 531, 557 (2017) (“We disapprove these cases only to the extent they
19 assume, without conducting the inquiry Hill requires, that a compelling interest or compelling need
20 automatically is required.”). Its statutory interpretation of Section 1985.3, remains undisturbed.
21 Third, Plaintiff attempts to distinguish Lantz from the facts here by pointing out that in
22 Lantz the Court considered a scenario where the plaintiff’s medical records were subpoenaed by
23 the County of Kern in an employment action and reasoned that because they were medical records
24 they were not subject to the exemption. Plaintiff further doubles down with a critique of the Court’s
25 statutory construction of Section 1985.3, claiming the Court of Appeal “read additional language
26 into the statute when itconcluded that the exemption for state agencies only applied in CRFPA
27 actions . . . .” (Opp. 16:27-17:4.)
28 //
LITTLER MEND ELSO N P.C.
Attorneys at Law
4
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 The fundamental purpose of statutory construction is to ascertain the intent of the
2 lawmakers so as to effectuate the purpose of the law. Palos Verdes Fac. Assn. v. Palos Verdes
3 Peninsula Unified Sch. Dist., 21 Cal. 3d 650, 658 (1978). Courts begin by examining the language
4 of the statute, “[b]ut ‘[i]t is a settled principle of statutory interpretation that language of a statute
5 should not be given a literal meaning if doing so would result in absurd consequences which the
6 Legislature did not intend.” Younger v. Superior Ct., 21 Cal. 3d 102, 113 (1978). “The intent
7 prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the
8 act.” Lungren v. Deukmejian, 45 Cal. 3d 727, 735 (1988). Courts should construe every statute
9 with reference to the entire scheme of law of which it is part so that the whole may be harmonized
10 and retain effectiveness. Clean Air Constituency v. California State Air Res. Bd., 11 Cal. 3d 801,
11 814 (1974). In Lantz, the Court of Appeal’s interpretation is directly grounded in the fact
12 Government Code Section 7465 is part of the RFPA. It has not injected additional language into
13 the code section arbitrarily nor exceeded a reasonable understanding of legislative intent.
14 Particularly where, as here, the interpretation advanced by Plaintiff would lead to the absurd result
15 that all cities, counties, and other state and local agencies would be exempt from all notice
16 requirements in connection with the issuance of a subpoena for personal records where the very
17 objective of the statute is to provide a codified procedure by which a consumer's privacy interest in
18 his or her personal records could be protected. Moreover, as noted above, the Court’s statutory
19 interpretation of Section 1985.3 remains undisturbed.
20 Additionally, the distinction between medical records and bank records holds little weight
21 for the present analysis as both medical records and bank records are subject to Section 1985.3 and
22 encompass the very types of personal records for which the legislature aimed to provide consumers
23 a mechanism to protect their privacy interest. Cal. Civ. Proc. § (““Personal records” means . . .
24 pertaining to a consumer and . . . maintained by any “witness” which is a physician, [or] state or
25 national bank.”)
26 //
27 //
28 //
LITTLER MEND ELSO N P.C.
Attorneys at Law
5
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 B. The LWDA and DLSE, Like Other Administrative Agencies, Are Subject To
Section 1985.3.
2
Plaintiff posits that whether Plaintiff is subject to the requirements of Code of Civil
3
Procedure Section 1985.3 depends on whether the LWDA or DLSE would be subject to those
4
provisions. Plaintiff asks: “The simple question for the Court is whether it would require the
5
LWDA to issue a notice to consumer in an enforcement action.” (Opp. 6:18-20.) To answer
6
Plaintiff’s simple question, yes, the Court should require issuance of a notice to consumer in an
7
LWDA or DLSE enforcement action. Under the California Administrative Procedure Act,
8
Government Code Section 11370, et seq. (“APA”), subpoenas issued by administrative agencies,
9
including the DLSE, are subject to the requirements of Section 1985.3. Likewise, Labor Code
10
section 74 authorizes the DLSE to investigate Labor Code violations through issuance of judicially
11
enforceable subpoenas to compel attendance of witnesses and production of records. In issuing
12
such, the provisions of Section 1985.3 fully apply when third party personal records are sought by
13
administrative subpoenas. “Subpoenas and subpoenas duces tecum shall be issued by the agency
14
or presiding officer at the request of a party, or by the attorney of record for a party, in accordance
15
with Sections 1985 to 1985.4, inclusive, of the Code of Civil Procedure. Cal. Gov't Code §
16
11450.20; Agency Prehearing Investigatory Authority and Methods, California Practice Guide:
17
Administrative Law Ch. 7-A. Even if, as Plaintiff claims, she stands as a proxy for the state,
18
Plaintiff cannot escape her obligations because the State is subject to the same requirements under
19
Section 1985.3.
20
C. The Subpoena Is Subject To Section 1985.3 Regardless Of The Severity Of
21 The Privacy Intrusion Resulting From The Information Sought.
22 Plaintiff argues that the type of information sought and privacy safeguards she proposes
23 minimize the severity of the privacy intrusion thereby reducing the need for consumer notice under
24 Section 1985.3. Defendant maintains that the financial information sought here is highly sensitive,
25 but Plaintiff misses the point. The inquiry and analysis as to the applicability of Section 1985.3 is
26 not centered on whether the information sought poses a minimal or significant privacy intrusion,
27 nor does the inquiry lend itself to an analysis on whether notice and an opportunity to object are
28 necessary based on the severity of the privacy intrusion. And Plaintiff’s proposed safeguards and
LITTLER MEND ELSO N P.C.
Attorneys at Law
6
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 reference to the protective order do not eliminate obligations under Section 1985.3. Were that the
2 case, every civil litigant subject to a protective order could circumvent the obligation. The primary
3 focus of Section 1985.3 is the establishment of the required notice to the consumer and the process
4 by which the consumer may challenge subpoenas seeking confidential records. Foothill Fed.
5 Credit Union v. Superior Ct., 155 Cal. App. 4th 632, 639 (2007). Compliance with the Section
6 1985.3 consumer notice is compulsory, when as here, the personal records sought, consumer whose
7 records are sought, and subpoenaing party fall squarely within the definitions of Section 1985.3.
8 The code section does not make allowances for an analysis of the severity of the privacy intrusion
9 as a metric for whether the requirement applies. Regardless of the severity of the privacy intrusion,
10 the purpose of Section 1985.3 is to provide a consumer notice and an opportunity to object.
11 III. CONCLUSION
12 For the foregoing reasons, Defendant respectfully requests that this Court grant its Motion
13 to quash the Subpoena.
14
15 Dated: August 24, 2022
LITTLER MENDELSON P.C.
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18 Helene Wasserman
Shannon R. Boyce
19 Melissa Velez
20 Attorneys for Defendant
TRADER JOE’S COMPANY
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LITTLER MEND ELSO N P.C.
Attorneys at Law
7
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
1 PROOF OF SERVICE
2
At the time of service, I was over 18 years of age and not a party to this action. I am
3
employed in the County of Los Angeles, State of California. My business address is 633 West 5th
4
Street, 63rd Floor, Los Angeles, CA 90071.
5
6 On August 24, 2022, I served true copies of the following document(s) described as
7 REPLY IN SUPPORT OF DEFENDANT TRADER JOE’S COMPANY’S MOTION
TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF
8 BUSINESS RECORDS TO COMDATA, INC.
9 the interested parties in this action as follows:
10 Larry W Lee William L. Marder
Max W. Gavron Polaris Law Group LLP
11 Diversity Law Group 501 San Benito St., Suite 200
12 515 S. Figueroa St., Suite 1250 Hollister, CA 95023
Los Angeles, CA 90071 Telephone: (831) 531-4214
13 Telephone: (213) 488-6555 Facsimile: (831) 634-0333
Facsimile: (213) 488-6554 Email: bill@polarislawgroup.com
14 lwlee@diversitylaw.com
mgavron@diversitylaw.com
15 Olympia@diversitylaw.com
16 Erika@diversitylaw.com
17
VIA ELECTRONIC SERVICE: Based on a court order or an agreement of the
18 parties to accept electronic service, including pursuant to Code of Civil Procedure
section 1010.6, which allows for service by e-mail or electronic transmission, I
19 caused the documents to be sent to the persons at the electronic service addresses
listed herein. My email address is mmorelli@littler.com.
20
21 I declare under penalty of perjury under the laws of the State of California that the
22 above is true and correct. Executed on August 24, 2022, at Los Angeles, California.
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Michele Morelli
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4879-0666-7823.3 / 071820-1075
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LITTLER MEND ELSO N P.C.
Attorneys at Law
8
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer 1 Helene Wasserman, Bar No. 130134 8/24/2022 2:43 PM hwasserman@littler.com By: Narzralli Baksh, Deputy 2 Shannon R. Boyce, Bar No. 229041 sboyce@littler.com 3 Melissa Velez, Bar No. 316714 mvelez@littler.com 4 LITTLER MENDELSON P.C. 2049 Century Park East 5 5th Floor Los Angeles, California 90067.3107 6 Telephone: 310.553.0308 Fax No.: 310.553.5583 7 Attorneys for Defendant 8 TRADER JOE’S COMPANY 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 13 behalf of all others similarly situated, REPLY IN SUPPORT OF DEFENDANT 14 Plaintiff, TRADER JOE’S COMPANY’S MOTION TO QUASH PLAINTIFF’S 15 v. DEPOSITION SUBPOENA FOR PRODUCTION OF BUSINESS 16 TRADER JOE’S COMPANY, a California RECORDS TO COMDATA, INC. corporation; and DOES 1 through 50, inclusive, 17 ASSIGNED FOR ALL PURPOSES TO Defendant. JUDGE THOMAS P. ANDERLE, DEPT. 3 18 Date: August 31, 2022 19 Time: 10:00 a.m. Dept.: 3 20 Trial Date: February 14, 2023 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 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 I. INTRODUCTION 2 The law is clear: Private Attorney General Act Plaintiffs (“PAGA”) are not exempt from 3 providing notice to consumer under California Code of Civil Procedure Section 1985.3. Plaintiff 4 Victoria Tice’s (“Plaintiff”) procedurally defective Deposition Subpoena for Production of 5 Business Records (“Subpoena”) issued to Comdata, Inc. (“Comdata”) is nothing more than an 6 attempt to skirt her obligations under California Code of Civil Procedure Section 1985.3. 7 As an initial matter, the Court of Appeal in Lantz v. Superior Ct., 28 Cal. App. 4th 1839 8 (1994). concisely sets forth the legislative intent behind Section 1985.3 and its interplay with 9 Government Code Section 7465. Because Government Code Section 7465 stems from the 10 California Right to Financial Privacy Act (“RFPA”) and preceded the enactment of Section 1985.3, 11 at the time Section 1985.3 was enacted, there was already a mechanism in place to seek the financial 12 records at issue in a proceeding under the RFPA. Lantz explained that the reference to Government 13 Code Section 7465 was an “inartful attempt” by the Legislature to exempt subpoenas already 14 governed by the RFPA and not a blanket exemption for all state agencies. Thus, Plaintiff cannot 15 avoid the consumer notice requirement by claiming to be a proxy of the state, when the state itself 16 is not actually exempt. 17 Still, Plaintiff makes futile efforts to undermine the Lantz holding and maintains that only 18 if the Labor and Workforce Development Agency (“LWDA”) or Division of Labor Standards 19 Enforcement (“DLSE”) are subject to the provisions of Section 1985.3, then would Plaintiff also 20 need to satisfy the notice requirements. Critically, however, the California Administrative 21 Procedure Act instructs that subpoenas issues by administrative agencies, such as the DLSE, are 22 subject to the provisions and requirements of Section 1985.3, as is Plaintiff. 23 Additionally, the inquiry and analysis as to the applicability of Section 1985.3 is not 24 dependent on the severity of the privacy intrusion that would result with the records produced or 25 the safeguards a party may implement. Rather, the consumer notice requirement is compulsory 26 under Section 1985.3 when, as here, the personal records sought, the consumers, and the 27 subpoenaing party are subject to the definitions of Section 1985.3. 28 // LITTLER MEND ELSO N P.C. 2049 C entury Park East 2 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 Accordingly, without the requisite notice to consumers the Subpoena is invalid. Trader 2 Joe’s Company (“Trader Joe’s” or “Defendant”) respectfully requests that the Court ensure 3 Plaintiff’s compliance with this critical procedure by granting this Motion to quash the Subpoena. 4 II. LEGAL ARGUMENT 5 A. State Agencies Must Adhere To The Procedural Requisites Of Section 1985.3 6 As Must Plaintiff. 7 The Court of Appeal in Lantz v. Superior Ct., 28 Cal. App. 4th 1839 (1994), laid out a clear 8 history and overview of the legislative intent behind Section 1985.3 and its interplay with 9 Government Code Section 7465 of the California Right to Financial Privacy Act (“RFPA”). In 10 sum, the Court of Appeal held that state agencies must adhere to the procedural requisites of Section 11 1985.3. Plaintiff must also abide by Section 1985.3, and her failure to do so renders the Comdata 12 Subpoena invalid despite her efforts to undercut the Court of Appeal’s interpretation. 13 In Lantz, the Court of Appeal clarified that Government Code Section 7465 is part of the 14 RFPA, which “sets forth the mechanism by which a state or local agency conducting a civil or 15 criminal investigation of a customer of a financial institution may attempt to subpoena the 16 customer’s financial records ‘in connection with a civil or criminal investigation of the customer. . 17 . .’” Lantz, 28 Cal. App. 4th at 1851, citing Cal. Gov’t Code § 7471. Section 1985.3(a)(3) 18 seemingly exempts the “state or local agencies described in Section 7465 of the Government Code 19 . . . ” from compliance with the requisite notice to consumer. A further look at Government Code 20 Section 7465, however, reveals that it does not provide an all-purpose definition for “state agency” 21 or “local agency.” Rather, its definitions for “state agency” and “local agency” arise in the unique 22 context of the RFPA. See Cal. Gov’t. Code § 7465 (“For the purposes of this chapter . . . The term 23 “state agency” means every state office, officer, department, division, bureau, board, and 24 commission or other state agency, including the Legislature.”); Cal. Gov’t. Code § 7460 (“This 25 chapter shall be known as the “California Right to Financial Privacy Act.””). Lantz explains that 26 because the RFPA preceded the enactment of Section 1985.3, at the time Section 1985.3 was 27 enacted, there was already a mechanism in place to seek the financial records at issue in a 28 proceeding under the RFPA. Lantz, 28 Cal. App. 4th at 1851. Lantz reasoned that the Legislature LITTLER MEND ELSO N P.C. Attorneys at Law 3 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 did not intend to enact a statute containing a wholesale exemption for cities, counties, and other 2 state and local agencies. Accordingly, a PAGA Plaintiff standing in as a proxy for the State would 3 not be entitled to an exemption that the State does not enjoy. Plaintiff still clings to her argument 4 although, for the following reasons, she fails at her attempt to undercut Defendant’s reliance on 5 Lantz. 6 First, Plaintiff argues that because she seeks customer information from a financial 7 institution, she is somehow exempt from the notice to consumer requirements and the reasoning in 8 Lantz. Plaintiff’s analysis is reductive and incomplete. Lantz clarifies that Government Code 9 section 7465, upon which Plaintiff relies to claim an all-encompassing exemption for government 10 agencies from the requirements of section 1985.3, is part of the RFPA. The RFPA provides a 11 mechanism by which state or local agencies can obtain financial information from financial 12 institutions concerning their customers in a civil or criminal investigation of the customer. The 13 information Plaintiff seeks here does not arise in the context of an RFPA civil or criminal 14 investigation. Thus, Plaintiff is not exempt from the notice to consumer requirements nor can she 15 rely on the subpoena mechanism in the RFPA. 16 Second, As Defendant pointed out in its Motion, Williams disapproved of Lantz on other 17 grounds related to its examination of the compelling interest test for a privacy analysis. Williams 18 v. Superior Ct., 3 Cal. 5th 531, 557 (2017) (“We disapprove these cases only to the extent they 19 assume, without conducting the inquiry Hill requires, that a compelling interest or compelling need 20 automatically is required.”). Its statutory interpretation of Section 1985.3, remains undisturbed. 21 Third, Plaintiff attempts to distinguish Lantz from the facts here by pointing out that in 22 Lantz the Court considered a scenario where the plaintiff’s medical records were subpoenaed by 23 the County of Kern in an employment action and reasoned that because they were medical records 24 they were not subject to the exemption. Plaintiff further doubles down with a critique of the Court’s 25 statutory construction of Section 1985.3, claiming the Court of Appeal “read additional language 26 into the statute when itconcluded that the exemption for state agencies only applied in CRFPA 27 actions . . . .” (Opp. 16:27-17:4.) 28 // LITTLER MEND ELSO N P.C. Attorneys at Law 4 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 The fundamental purpose of statutory construction is to ascertain the intent of the 2 lawmakers so as to effectuate the purpose of the law. Palos Verdes Fac. Assn. v. Palos Verdes 3 Peninsula Unified Sch. Dist., 21 Cal. 3d 650, 658 (1978). Courts begin by examining the language 4 of the statute, “[b]ut ‘[i]t is a settled principle of statutory interpretation that language of a statute 5 should not be given a literal meaning if doing so would result in absurd consequences which the 6 Legislature did not intend.” Younger v. Superior Ct., 21 Cal. 3d 102, 113 (1978). “The intent 7 prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the 8 act.” Lungren v. Deukmejian, 45 Cal. 3d 727, 735 (1988). Courts should construe every statute 9 with reference to the entire scheme of law of which it is part so that the whole may be harmonized 10 and retain effectiveness. Clean Air Constituency v. California State Air Res. Bd., 11 Cal. 3d 801, 11 814 (1974). In Lantz, the Court of Appeal’s interpretation is directly grounded in the fact 12 Government Code Section 7465 is part of the RFPA. It has not injected additional language into 13 the code section arbitrarily nor exceeded a reasonable understanding of legislative intent. 14 Particularly where, as here, the interpretation advanced by Plaintiff would lead to the absurd result 15 that all cities, counties, and other state and local agencies would be exempt from all notice 16 requirements in connection with the issuance of a subpoena for personal records where the very 17 objective of the statute is to provide a codified procedure by which a consumer's privacy interest in 18 his or her personal records could be protected. Moreover, as noted above, the Court’s statutory 19 interpretation of Section 1985.3 remains undisturbed. 20 Additionally, the distinction between medical records and bank records holds little weight 21 for the present analysis as both medical records and bank records are subject to Section 1985.3 and 22 encompass the very types of personal records for which the legislature aimed to provide consumers 23 a mechanism to protect their privacy interest. Cal. Civ. Proc. § (““Personal records” means . . . 24 pertaining to a consumer and . . . maintained by any “witness” which is a physician, [or] state or 25 national bank.”) 26 // 27 // 28 // LITTLER MEND ELSO N P.C. Attorneys at Law 5 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 B. The LWDA and DLSE, Like Other Administrative Agencies, Are Subject To Section 1985.3. 2 Plaintiff posits that whether Plaintiff is subject to the requirements of Code of Civil 3 Procedure Section 1985.3 depends on whether the LWDA or DLSE would be subject to those 4 provisions. Plaintiff asks: “The simple question for the Court is whether it would require the 5 LWDA to issue a notice to consumer in an enforcement action.” (Opp. 6:18-20.) To answer 6 Plaintiff’s simple question, yes, the Court should require issuance of a notice to consumer in an 7 LWDA or DLSE enforcement action. Under the California Administrative Procedure Act, 8 Government Code Section 11370, et seq. (“APA”), subpoenas issued by administrative agencies, 9 including the DLSE, are subject to the requirements of Section 1985.3. Likewise, Labor Code 10 section 74 authorizes the DLSE to investigate Labor Code violations through issuance of judicially 11 enforceable subpoenas to compel attendance of witnesses and production of records. In issuing 12 such, the provisions of Section 1985.3 fully apply when third party personal records are sought by 13 administrative subpoenas. “Subpoenas and subpoenas duces tecum shall be issued by the agency 14 or presiding officer at the request of a party, or by the attorney of record for a party, in accordance 15 with Sections 1985 to 1985.4, inclusive, of the Code of Civil Procedure. Cal. Gov't Code § 16 11450.20; Agency Prehearing Investigatory Authority and Methods, California Practice Guide: 17 Administrative Law Ch. 7-A. Even if, as Plaintiff claims, she stands as a proxy for the state, 18 Plaintiff cannot escape her obligations because the State is subject to the same requirements under 19 Section 1985.3. 20 C. The Subpoena Is Subject To Section 1985.3 Regardless Of The Severity Of 21 The Privacy Intrusion Resulting From The Information Sought. 22 Plaintiff argues that the type of information sought and privacy safeguards she proposes 23 minimize the severity of the privacy intrusion thereby reducing the need for consumer notice under 24 Section 1985.3. Defendant maintains that the financial information sought here is highly sensitive, 25 but Plaintiff misses the point. The inquiry and analysis as to the applicability of Section 1985.3 is 26 not centered on whether the information sought poses a minimal or significant privacy intrusion, 27 nor does the inquiry lend itself to an analysis on whether notice and an opportunity to object are 28 necessary based on the severity of the privacy intrusion. And Plaintiff’s proposed safeguards and LITTLER MEND ELSO N P.C. Attorneys at Law 6 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 reference to the protective order do not eliminate obligations under Section 1985.3. Were that the 2 case, every civil litigant subject to a protective order could circumvent the obligation. The primary 3 focus of Section 1985.3 is the establishment of the required notice to the consumer and the process 4 by which the consumer may challenge subpoenas seeking confidential records. Foothill Fed. 5 Credit Union v. Superior Ct., 155 Cal. App. 4th 632, 639 (2007). Compliance with the Section 6 1985.3 consumer notice is compulsory, when as here, the personal records sought, consumer whose 7 records are sought, and subpoenaing party fall squarely within the definitions of Section 1985.3. 8 The code section does not make allowances for an analysis of the severity of the privacy intrusion 9 as a metric for whether the requirement applies. Regardless of the severity of the privacy intrusion, 10 the purpose of Section 1985.3 is to provide a consumer notice and an opportunity to object. 11 III. CONCLUSION 12 For the foregoing reasons, Defendant respectfully requests that this Court grant its Motion 13 to quash the Subpoena. 14 15 Dated: August 24, 2022 LITTLER MENDELSON P.C. 16 17 18 Helene Wasserman Shannon R. Boyce 19 Melissa Velez 20 Attorneys for Defendant TRADER JOE’S COMPANY 21 22 23 24 25 26 27 28 LITTLER MEND ELSO N P.C. Attorneys at Law 7 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA 1 PROOF OF SERVICE 2 At the time of service, I was over 18 years of age and not a party to this action. I am 3 employed in the County of Los Angeles, State of California. My business address is 633 West 5th 4 Street, 63rd Floor, Los Angeles, CA 90071. 5 6 On August 24, 2022, I served true copies of the following document(s) described as 7 REPLY IN SUPPORT OF DEFENDANT TRADER JOE’S COMPANY’S MOTION TO QUASH PLAINTIFF’S DEPOSITION SUBPOENA FOR PRODUCTION OF 8 BUSINESS RECORDS TO COMDATA, INC. 9 the interested parties in this action as follows: 10 Larry W Lee William L. Marder Max W. Gavron Polaris Law Group LLP 11 Diversity Law Group 501 San Benito St., Suite 200 12 515 S. Figueroa St., Suite 1250 Hollister, CA 95023 Los Angeles, CA 90071 Telephone: (831) 531-4214 13 Telephone: (213) 488-6555 Facsimile: (831) 634-0333 Facsimile: (213) 488-6554 Email: bill@polarislawgroup.com 14 lwlee@diversitylaw.com mgavron@diversitylaw.com 15 Olympia@diversitylaw.com 16 Erika@diversitylaw.com 17 VIA ELECTRONIC SERVICE: Based on a court order or an agreement of the 18 parties to accept electronic service, including pursuant to Code of Civil Procedure section 1010.6, which allows for service by e-mail or electronic transmission, I 19 caused the documents to be sent to the persons at the electronic service addresses listed herein. My email address is mmorelli@littler.com. 20 21 I declare under penalty of perjury under the laws of the State of California that the 22 above is true and correct. Executed on August 24, 2022, at Los Angeles, California. 23 24 Michele Morelli 25 4879-0666-7823.3 / 071820-1075 26 27 28 LITTLER MEND ELSO N P.C. Attorneys at Law 8 2049 C entury Park East 5th Floor Los Angeles, CA 90067.3107 310.553.0308 REPLY ISO DEFENDANT'S MOTION TO QUASH COMDATA SUBPOENA