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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA BARBARA
Dated and Entered: 08/31/2022 Time: 10:00 AM
Judicial Officer: Thomas P Anderle
Deputy Clerk: Veronica Robles Dept: SB Dept 3
Deputy Sheriff: Mike Gregson
Court Reporter: Elizabeth Mooy Case No: 20CV00892
Victoria Tice vs Trader Joe's Company
Parties Present:
Gavron, Max W Attorney for Plaintiff
Valez, Melissa Attorney for Defendant
NATURE OF PROCEEDINGS: Motion: Quash
The matter proceeded via Zoom.
Plaintiff’s attorney present argument. After argument the Court made the following ruling:
ATTORNEYS
For Plaintiff Victoria Tice: Larry W. Lee, Max W. Gavron, Diversity Law Group,
P.C.
For Defendant Trader Joe’s Company: Helene Wasserman, Shannon R. Boyce, Melissa
Velez, Littler Mendelson, P.C.
Emails: mgavron@diversitylaw.com; bill@polarislawgroup.com;
hwasserman@littler.com
MATTERS
Defendant’s Motion To Quash
RULING
Defendant’s motion is granted.
Background
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Plaintiff Victoria Tice is a former employee of defendant Trader Joe’s Company. Her class
and representative action complaint, filed February 14, 2020, alleges two causes of action
against defendant Trader Joe’s Company for (1) violation of Labor Code §§ 201-203, and
(2) violation of Labor Code § 2698, et seq. (the Private Attorneys General Act of 2004 or
PAGA). In its prior rulings, the Court has set forth the detailed background of this case
(which is incorporated herein). Briefly, plaintiff alleges she was employed by defendant
from 2011 until January 27, 2020. The complaint alleges that defendant failed to comply
with the provisions of Labor Code sections 201 through 203 by issuing paycards as final
payment of wages to employees who were discharged or who resigned, without the
employee’s authorization. The paycards issued by defendant required fees for usage and
did not allow employees to access all of the money contained on the cards, because the
paycards were not fully cashable and could not be used at all financial institutions.
Plaintiff brings her second cause of action as a proxy for the State of California pursuant to
PAGA and seeks penalties on behalf of all aggrieved employees from February 10, 2019,
through the present for defendant’s violations of Labor Code sections 201-203, 212, and
213.
On September 21, 2021, the Court denied plaintiff’s motion for class certification. On
January 11, 2022, the Court denied defendant’s motion to strike plaintiff’s PAGA claims.
Defendant seeks to quash a deposition subpoena for the production of business records
served by plaintiff on Comdata, Inc. (Comdata), a third-party payment solution company
that provides the paycards that defendant uses to issue terminated employees’ final pay.
Defendant contends that the subpoena, which seeks production of routing and account
numbers for paycards issued by Comdata to defendant’s former employees, fails to
provide proper notice to the affected former employees pursuant to Code of Civil
Procedure section 1985.3. Plaintiff opposes the motion.
Based on available information, on June 1, 2022, plaintiff sent a letter to Comdata
informing it of the subpoena and stating that plaintiff is not subject to the provisions of
Code of Civil Procedure section 1985.3 regarding a notice to consumer because her claims
are brought under PAGA. (Velez Decl., ¶ 2, Exh. A.) The subpoena, which contains two
document requests, was issued on June 8, 2022. (Id., ¶ 3, Exh. B). The parties met and
conferred regarding the subpoena. (Id., ¶¶ 4, 5, Exhs. C & D.) Defendant requested that
plaintiff withdraw the subpoena due to plaintiff’s failure to provide a notice to consumer.
(Ibid.) Plaintiff declined to withdraw the subpoena. (Ibid.) On July 11, 2022, the parties
attended an information discovery conference with the Court but were unable to reach a
resolution on the consumer notice issue. (Id., ¶ 6.)
Analysis
SC-2411 (Revised July 1, 2013) MINUTE ORDER
“Every copy of the subpoena duces tecum and affidavit, if any, served on a consumer or
his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in
a typeface designed to call attention to the notice, indicating that (1) records about the
consumer are being sought from the witness named on the subpoena; (2) if the consumer
objects to the witness furnishing the records to the party seeking the records, the consumer
must file papers with the court or serve a written objection as provided in subdivision (g)
prior to the date specified for production on the subpoena; and (3) if the party who is
seeking the records will not agree in writing to cancel or limit the subpoena, an attorney
should be consulted about the consumer's interest in protecting his or her rights of
privacy.” (Code Civ. Proc., § 1985.3, subd. (e).) Prior to the date for production of
personal records called for in the subpoena, the party serving the subpoena must serve on
the consumer whose records are sought, a copy of the subpoena, the affidavit supporting
the issuance of the subpoena (if any), the notice described in subdivision (e) of section
1985.3, and a proof of service. (Id., subd. (b).) Service on the consumer must be made in
the manner provided in the statute. (Ibid.)
The specific procedures and notice requirements set forth Code of Civil Procedure section
1985.3, subdivisions (a) through (e), applicable to subpoenas seeking production of the
“personal records” of a “consumer” as those terms are defined in the statute, are intended
to protect a consumer’s right to privacy as well as the consumer’s personal records, and to
provide notice and an opportunity to object to disclosure of private information. (Lantz v.
Superior Court (1994) 28 Cal.App.4th 1839, 1848, disapproved on other grounds in
Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8 (Lantz); see Code Civ. Proc., §
1985.3, subd. (g) [permitting consumer whose personal records are sought to file a motion
to quash or modify the subpoena].) Failure to comply with section 1985.3 is a basis upon
which a witness may refuse to produce the personal records sought by the subpoena. (Code
Civ. Proc., § 1985.3, subd. (k).)
The parties do not dispute that that the records sought in the subpoena constitute “personal
records” of a “consumer” as those terms are defined in Code of Civil Procedure section
1985.3, subdivision (a). Rather, the parties’ dispute is limited to whether plaintiff may
avail herself of an exception set forth in section 1985.3, subdivision (a)(3), which provides
that a “subpoenaing party” does not include “the state or local agencies described in
Section 7465 of the Government Code”, regarding plaintiff’s PAGA cause of action. The
Court will, therefore, limit its analysis to this issue.
The parties assert various contentions regarding statements contained in papers previously
filed in connection with plaintiff’s prior motion to compel relating to plaintiff’s purported
assurances that she will issue a subpoena in compliance with section 1985.3, and
statements made at the hearing on that motion regarding the forthcoming subpoena. The
Court does not consider these matters relevant to the instant dispute.
SC-2411 (Revised July 1, 2013) MINUTE ORDER
PAGA provides that “[n]otwithstanding any other provision of law, any provision of this
code that provides for a civil penalty to be assessed and collected by the Labor and
Workforce Development Agency or any of its departments, divisions, commissions,
boards, agencies, or employees, for a violation of this code, may, as an alternative, be
recovered through a civil action brought by an aggrieved employee on behalf of himself or
herself and other current or former employees pursuant to the procedures specified in
Section 2699.3.” (Lab. Code, § 2699, subd. (a).) In enacting PAGA, “[t]he Legislature
declared that adequate financing of labor law enforcement was necessary to achieve
maximum compliance with state labor laws, that staffing levels for labor law enforcement
agencies had declined and were unlikely to keep pace with the future growth of the labor
market, and that it was therefore in the public interest to allow aggrieved employees,
acting as private attorneys general, to recover civil penalties for Labor Code violations,
with the understanding that labor law enforcement agencies were to retain primacy over
private enforcement efforts. [Citation.]” (Arias v. Superior Court (2009) 46 Cal.4th 969,
980.) Under PAGA, “an ‘aggrieved employee’ may bring a civil action personally and on
behalf of other current or former employees to recover civil penalties for Labor Code
violations. [Citation].” (Id. at pp. 980–981.) An action under PAGA functions as a
substitute for an action brought by the government, and a representative action is
authorized solely for the purpose of seeking statutory penalties. (Id. at p. 986.)
PAGA is a procedural statute. (Wesson v. Staples the Office Superstore, LLC (2021) 68
Cal.App.5th 746, 760.) A PAGA action functions as a substitute for government action, in
the nature of a qui tam proceeding in which the employee plaintiff is authorized to file the
lawsuit. (Montano v. Wet Seal Retail, Inc. (2015) 7 Cal.App.5th 1248, 1256; see also
Hargrove v. Legacy Healthcare, Inc. (2022) 80 Cal.App.5th 782, 791 [PAGA confers
standing on “aggrieved employees” to sue on behalf of himself or herself and other current
or former employees].) This distinction between a PAGA action and other types of
lawsuits is important when viewed in light of the purpose and policy considerations for the
procedures and notice requirements set forth in Civil Code section 1983.5. The statute
does not provide that a private plaintiff filing suit in a qui tam or proxy action, such as
under PAGA, is subject to the exemption from notice requirements provided to
government agencies in actions brought by those agencies, nor does plaintiff cite legal
authority for this proposition. For example, a PAGA plaintiff must pay court filing and
reporter fees whereas a government agency is exempt from paying the same filing and
reporter fees. (See, e.g., Gov. Code, § 6103, subds. (a) & (b).)
Plaintiff does not cite persuasive legal authority demonstrating that a PAGA
plaintiff, who is not a “state or local agenc[y] described in Section 7465 of the
Government Code”, is exempt from providing the required consumer notice under section
1985.3, in light of underlying policy considerations that require consumers be provided
SC-2411 (Revised July 1, 2013) MINUTE ORDER
with an opportunity to protect against disclosure of their private personal records. (See
Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d
650, 658 (Palos Verdes) [“[w]e are required to give effect to statutes ‘according to the
usual, ordinary import of the language employed in framing them.’ [Citation.]”].) Further,
Lantz is not dispositive. The subpoenaing party in Lantz was the County of Kern, not a
private PAGA plaintiff. (See Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228,
1246 [PAGA claim is a private dispute].) In addition, Lantz exempts state and local
governments when the information is sought from a financial institution concerning its
customers. (Lantz, supra, 28 Cal.App.4th at p. 1852.) Based on the information provided
by the parties, the records sought do not appear to be records of a financial institution’s
own customers.
“ ‘When used in a statute (words) must be construed in context, keeping in mind the nature
and obvious purpose of the statute where they appear.’ [Citation.]” (Palos Verdes, supra,
21 Cal.3d at p. 659.) The obvious purpose of the notice requirements set forth in Code of
Civil Procedure section 1985.3 notice is to provide notice and an opportunity to protect
disclosure of private personal information. By its plain language, Code of Civil Procedure
section 1983.5 exempts state and local governments from consumer notice requirements
but does not exempt private plaintiffs bringing private claims as a proxy for the state, or as
a qui tam action, under PAGA or any other statute. Plaintiff has also not provided
persuasive legal authority demonstrating that the Legislature intended to exempt private
plaintiffs bringing PAGA claims from the notice requirements. (See, e.g., Code Civ. Proc.,
§ 1985.3, subd. (j)). Plaintiff also has not demonstrated a sufficient basis permitting the
Court to ignore important policy considerations merely because the underlying claim is
brought under PAGA (versus other types of lawsuits). Based on the statute’s plain
meaning and underlying policy considerations, the Court finds that plaintiff is subject to
the consumer notice, and all other, requirements contained in section 1985.3. Defendant’s
motion is therefore granted.
As the motion is granted, defendant’s request for judicial notice is moot.
DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by:
Veronica Robles , Deputy
SC-2411 (Revised July 1, 2013) MINUTE ORDER
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA BARBARA Dated and Entered: 08/31/2022 Time: 10:00 AM Judicial Officer: Thomas P Anderle Deputy Clerk: Veronica Robles Dept: SB Dept 3 Deputy Sheriff: Mike Gregson Court Reporter: Elizabeth Mooy Case No: 20CV00892 Victoria Tice vs Trader Joe's Company Parties Present: Gavron, Max W Attorney for Plaintiff Valez, Melissa Attorney for Defendant NATURE OF PROCEEDINGS: Motion: Quash The matter proceeded via Zoom. Plaintiff’s attorney present argument. After argument the Court made the following ruling: ATTORNEYS For Plaintiff Victoria Tice: Larry W. Lee, Max W. Gavron, Diversity Law Group, P.C. For Defendant Trader Joe’s Company: Helene Wasserman, Shannon R. Boyce, Melissa Velez, Littler Mendelson, P.C. Emails: mgavron@diversitylaw.com; bill@polarislawgroup.com; hwasserman@littler.com MATTERS Defendant’s Motion To Quash RULING Defendant’s motion is granted. Background SC-2411 (Revised July 1, 2013) MINUTE ORDER Plaintiff Victoria Tice is a former employee of defendant Trader Joe’s Company. Her class and representative action complaint, filed February 14, 2020, alleges two causes of action against defendant Trader Joe’s Company for (1) violation of Labor Code §§ 201-203, and (2) violation of Labor Code § 2698, et seq. (the Private Attorneys General Act of 2004 or PAGA). In its prior rulings, the Court has set forth the detailed background of this case (which is incorporated herein). Briefly, plaintiff alleges she was employed by defendant from 2011 until January 27, 2020. The complaint alleges that defendant failed to comply with the provisions of Labor Code sections 201 through 203 by issuing paycards as final payment of wages to employees who were discharged or who resigned, without the employee’s authorization. The paycards issued by defendant required fees for usage and did not allow employees to access all of the money contained on the cards, because the paycards were not fully cashable and could not be used at all financial institutions. Plaintiff brings her second cause of action as a proxy for the State of California pursuant to PAGA and seeks penalties on behalf of all aggrieved employees from February 10, 2019, through the present for defendant’s violations of Labor Code sections 201-203, 212, and 213. On September 21, 2021, the Court denied plaintiff’s motion for class certification. On January 11, 2022, the Court denied defendant’s motion to strike plaintiff’s PAGA claims. Defendant seeks to quash a deposition subpoena for the production of business records served by plaintiff on Comdata, Inc. (Comdata), a third-party payment solution company that provides the paycards that defendant uses to issue terminated employees’ final pay. Defendant contends that the subpoena, which seeks production of routing and account numbers for paycards issued by Comdata to defendant’s former employees, fails to provide proper notice to the affected former employees pursuant to Code of Civil Procedure section 1985.3. Plaintiff opposes the motion. Based on available information, on June 1, 2022, plaintiff sent a letter to Comdata informing it of the subpoena and stating that plaintiff is not subject to the provisions of Code of Civil Procedure section 1985.3 regarding a notice to consumer because her claims are brought under PAGA. (Velez Decl., ¶ 2, Exh. A.) The subpoena, which contains two document requests, was issued on June 8, 2022. (Id., ¶ 3, Exh. B). The parties met and conferred regarding the subpoena. (Id., ¶¶ 4, 5, Exhs. C & D.) Defendant requested that plaintiff withdraw the subpoena due to plaintiff’s failure to provide a notice to consumer. (Ibid.) Plaintiff declined to withdraw the subpoena. (Ibid.) On July 11, 2022, the parties attended an information discovery conference with the Court but were unable to reach a resolution on the consumer notice issue. (Id., ¶ 6.) Analysis SC-2411 (Revised July 1, 2013) MINUTE ORDER “Every copy of the subpoena duces tecum and affidavit, if any, served on a consumer or his or her attorney in accordance with subdivision (b) shall be accompanied by a notice, in a typeface designed to call attention to the notice, indicating that (1) records about the consumer are being sought from the witness named on the subpoena; (2) if the consumer objects to the witness furnishing the records to the party seeking the records, the consumer must file papers with the court or serve a written objection as provided in subdivision (g) prior to the date specified for production on the subpoena; and (3) if the party who is seeking the records will not agree in writing to cancel or limit the subpoena, an attorney should be consulted about the consumer's interest in protecting his or her rights of privacy.” (Code Civ. Proc., § 1985.3, subd. (e).) Prior to the date for production of personal records called for in the subpoena, the party serving the subpoena must serve on the consumer whose records are sought, a copy of the subpoena, the affidavit supporting the issuance of the subpoena (if any), the notice described in subdivision (e) of section 1985.3, and a proof of service. (Id., subd. (b).) Service on the consumer must be made in the manner provided in the statute. (Ibid.) The specific procedures and notice requirements set forth Code of Civil Procedure section 1985.3, subdivisions (a) through (e), applicable to subpoenas seeking production of the “personal records” of a “consumer” as those terms are defined in the statute, are intended to protect a consumer’s right to privacy as well as the consumer’s personal records, and to provide notice and an opportunity to object to disclosure of private information. (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1848, disapproved on other grounds in Williams v. Superior Court (2017) 3 Cal.5th 531, 557, fn. 8 (Lantz); see Code Civ. Proc., § 1985.3, subd. (g) [permitting consumer whose personal records are sought to file a motion to quash or modify the subpoena].) Failure to comply with section 1985.3 is a basis upon which a witness may refuse to produce the personal records sought by the subpoena. (Code Civ. Proc., § 1985.3, subd. (k).) The parties do not dispute that that the records sought in the subpoena constitute “personal records” of a “consumer” as those terms are defined in Code of Civil Procedure section 1985.3, subdivision (a). Rather, the parties’ dispute is limited to whether plaintiff may avail herself of an exception set forth in section 1985.3, subdivision (a)(3), which provides that a “subpoenaing party” does not include “the state or local agencies described in Section 7465 of the Government Code”, regarding plaintiff’s PAGA cause of action. The Court will, therefore, limit its analysis to this issue. The parties assert various contentions regarding statements contained in papers previously filed in connection with plaintiff’s prior motion to compel relating to plaintiff’s purported assurances that she will issue a subpoena in compliance with section 1985.3, and statements made at the hearing on that motion regarding the forthcoming subpoena. The Court does not consider these matters relevant to the instant dispute. SC-2411 (Revised July 1, 2013) MINUTE ORDER PAGA provides that “[n]otwithstanding any other provision of law, any provision of this code that provides for a civil penalty to be assessed and collected by the Labor and Workforce Development Agency or any of its departments, divisions, commissions, boards, agencies, or employees, for a violation of this code, may, as an alternative, be recovered through a civil action brought by an aggrieved employee on behalf of himself or herself and other current or former employees pursuant to the procedures specified in Section 2699.3.” (Lab. Code, § 2699, subd. (a).) In enacting PAGA, “[t]he Legislature declared that adequate financing of labor law enforcement was necessary to achieve maximum compliance with state labor laws, that staffing levels for labor law enforcement agencies had declined and were unlikely to keep pace with the future growth of the labor market, and that it was therefore in the public interest to allow aggrieved employees, acting as private attorneys general, to recover civil penalties for Labor Code violations, with the understanding that labor law enforcement agencies were to retain primacy over private enforcement efforts. [Citation.]” (Arias v. Superior Court (2009) 46 Cal.4th 969, 980.) Under PAGA, “an ‘aggrieved employee’ may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. [Citation].” (Id. at pp. 980–981.) An action under PAGA functions as a substitute for an action brought by the government, and a representative action is authorized solely for the purpose of seeking statutory penalties. (Id. at p. 986.) PAGA is a procedural statute. (Wesson v. Staples the Office Superstore, LLC (2021) 68 Cal.App.5th 746, 760.) A PAGA action functions as a substitute for government action, in the nature of a qui tam proceeding in which the employee plaintiff is authorized to file the lawsuit. (Montano v. Wet Seal Retail, Inc. (2015) 7 Cal.App.5th 1248, 1256; see also Hargrove v. Legacy Healthcare, Inc. (2022) 80 Cal.App.5th 782, 791 [PAGA confers standing on “aggrieved employees” to sue on behalf of himself or herself and other current or former employees].) This distinction between a PAGA action and other types of lawsuits is important when viewed in light of the purpose and policy considerations for the procedures and notice requirements set forth in Civil Code section 1983.5. The statute does not provide that a private plaintiff filing suit in a qui tam or proxy action, such as under PAGA, is subject to the exemption from notice requirements provided to government agencies in actions brought by those agencies, nor does plaintiff cite legal authority for this proposition. For example, a PAGA plaintiff must pay court filing and reporter fees whereas a government agency is exempt from paying the same filing and reporter fees. (See, e.g., Gov. Code, § 6103, subds. (a) & (b).) Plaintiff does not cite persuasive legal authority demonstrating that a PAGA plaintiff, who is not a “state or local agenc[y] described in Section 7465 of the Government Code”, is exempt from providing the required consumer notice under section 1985.3, in light of underlying policy considerations that require consumers be provided SC-2411 (Revised July 1, 2013) MINUTE ORDER with an opportunity to protect against disclosure of their private personal records. (See Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658 (Palos Verdes) [“[w]e are required to give effect to statutes ‘according to the usual, ordinary import of the language employed in framing them.’ [Citation.]”].) Further, Lantz is not dispositive. The subpoenaing party in Lantz was the County of Kern, not a private PAGA plaintiff. (See Esparza v. KS Industries, L.P. (2017) 13 Cal.App.5th 1228, 1246 [PAGA claim is a private dispute].) In addition, Lantz exempts state and local governments when the information is sought from a financial institution concerning its customers. (Lantz, supra, 28 Cal.App.4th at p. 1852.) Based on the information provided by the parties, the records sought do not appear to be records of a financial institution’s own customers. “ ‘When used in a statute (words) must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.’ [Citation.]” (Palos Verdes, supra, 21 Cal.3d at p. 659.) The obvious purpose of the notice requirements set forth in Code of Civil Procedure section 1985.3 notice is to provide notice and an opportunity to protect disclosure of private personal information. By its plain language, Code of Civil Procedure section 1983.5 exempts state and local governments from consumer notice requirements but does not exempt private plaintiffs bringing private claims as a proxy for the state, or as a qui tam action, under PAGA or any other statute. Plaintiff has also not provided persuasive legal authority demonstrating that the Legislature intended to exempt private plaintiffs bringing PAGA claims from the notice requirements. (See, e.g., Code Civ. Proc., § 1985.3, subd. (j)). Plaintiff also has not demonstrated a sufficient basis permitting the Court to ignore important policy considerations merely because the underlying claim is brought under PAGA (versus other types of lawsuits). Based on the statute’s plain meaning and underlying policy considerations, the Court finds that plaintiff is subject to the consumer notice, and all other, requirements contained in section 1985.3. Defendant’s motion is therefore granted. As the motion is granted, defendant’s request for judicial notice is moot. DARREL E. PARKER, EXECUTIVE OFFICER Minutes Prepared by: Veronica Robles , Deputy SC-2411 (Revised July 1, 2013) MINUTE ORDER