Motion for Class Certification in Victoria Tice, etc., v. Trader Joe’s Company| Trellis.Law

On February 14, 2020 a Motion-Secondary was filed involving a dispute between Tice, Victoria, and Trader Joe'S Company, for Unlimited Other Employment (15) in the District Court of Santa Barbara County.

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1 Larry W. Lee (State Bar No. 228175) ELECTRONICALLY FILED
Max W. Gavron (State Bar No. 291697) Superior Court of California
2 DIVERSITY LAW GROUP, P.C. County of Santa Barbara
3 515 S. Figueroa Street, Suite 1250 Darrel E. Parker, Executive Officer
Los Angeles, CA 90071 6/22/2021 1:53 PM
4 (213) 488-6555 By: Elizabeth Spann, Deputy
(213) 488-6554 facsimile
5
6 William L. Marder (State Bar No. 170131)
Polaris Law Group
7 501 San Benito Street, Suite 200
Hollister, CA 95023
8 (831) 531-4214
9 (831) 634-0333 facsimile

10 Attorneys for Plaintiff and the Class
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 FOR THE COUNTY OF SANTA BARBARA
13
VICTORIA TICE, as an individual and on Case No. 20CV00892
14 behalf of all others similarly situated,
15 [Assigned to the Honorable Thomas P. Anderle,
Plaintiff, Department 3]
16
vs. PLAINTIFF VICTORIA TICE’S NOTICE
17 OF MOTION AND MOTION FOR CLASS
18 CERTIFICATION; MEMORANDUM OF
TRADER JOE’S COMPANY, a California POINTS AND AUTHORITIES IN
19 corporation; and DOES 1 through 50, SUPPORT
inclusive,
20 Date: August 17, 2021
21 Defendants. Time: 10:00 a.m.
Dept.: SB Dept. 3
22
23 TO ALL PARTIES AND THIER COUNSEL OF RECORD:
24 PLEASE TAKE NOTICE that on August 17, 2021 at 10:00 a.m., or as soon thereafter
25 as the matter may be heard in SB Department 3 of the Superior Court of the State of California,
26 County of Santa Barbara, located at 100 Anacapa Street, Santa Barbara, California 93101, before
27 the Honorable Thomas P. Anderle, Plaintiff Victoria Tice (“Plaintiff”) will and hereby does
28 move the Court, pursuant to Code of Civil Procedure § 382, on behalf of herself and all others

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 similarly situated for an order:
2 1. Determining that a class action is proper as to all causes of action in the
3 Complaint (“Complaint”) pursuant to California Code of Civil Procedure section 382 on the
4 grounds that: (1) the Class is ascertainable and sufficiently numerous; (2) common questions of
5 law and fact predominate over individual issues; (3) the class representative’s claims are typical
6 of the Class; (4) the class representative will adequately represent the interests of the class
7 members; and (5) class treatment is superior.
8 2. Certifying the following Class:
9 All former employees who were employed by Defendants in the State of
California at any time from February 14, 2017, through the present, and who were
10 paid on paycards at the time of separation of employment for whom Defendant
11 does not have a written authorization for payment via paycard.
3. Finding Plaintiff to be an adequate representative and deeming her the Class
12
Representative herein.
13
4. Finding Plaintiff’s counsel and their respective firms, namely Larry W. Lee and
14
Max W. Gavron of Diversity Law Group P.C., and William L. Marder of Polaris Law Group as
15
adequate class counsel and deeming them class counsel herein for the Class.
16
This Motion shall be based upon this Notice; the attached Memorandum of Points and
17
Authorities; the accompanying Declarations of Larry W. Lee, Max W. Gavron, William L.
18
Marder, and Victoria Tice filed herewith and any exhibits attached thereto; the pleadings and
19
papers on file herein, and upon such other matters and argument as may be presented to the
20
Court at the time of the hearing.
21
22
DATED: June 22, 2021 DIVERSITY LAW GROUP, P.C.
23
24
25 By: __________________________
Larry W. Lee
26 Max Gavron
Attorneys for Plaintiff and the Class
27
28

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION................................................................................................................ 6
4 II. CALIFORNIA LAW PROHIBITS EMPLOYERS FROM DISBURSING WAGES
5 VIA PAYCARD WITHOUT EXPRESS EMPLOYEE CONSENT ............................... 7
6 III. FACTS AND PROCEDURAL STATUS ......................................................................... 11
7 A. Defendant’s Payroll Practices ................................................................................... 11
8 1. Defendant’s Paycard Policies and Practices ..................................................... 12
9 2. Defendant’s Terminating Pay Policies and Practices ...................................... 13
10 B. Defendant’s Policy Change After Filing of Lawsuit................................................ 14
11 C. Plaintiff’s Employment with Defendant ................................................................... 14
12 D. Procedural History ..................................................................................................... 15
13 E. The Class List.............................................................................................................. 15
14 IV. THE CLASS SHOULD BE CERTIFIED ........................................................................ 15
15 A. The Class is Sufficiently Numerous .......................................................................... 16
16 B. The Class is Ascertainable ......................................................................................... 17
17 C. Common Question of Fact and Law Predominate .................................................. 17
18 1. The Class is Subject to a Common Question .................................................... 18
19 D. Plaintiff’s Claims are Typical of the Class ............................................................... 19
20 E. Plaintiff Will Fairly and Adequately Represent the Class ..................................... 20
21 F. A Class Action is the Superior Method of Resolving These Claims ...................... 21
22 G. A Classwide Trial is Manageable .............................................................................. 21
23 V. CONCLUSION .................................................................................................................. 22
24
25
26
27
28

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4 Armenta v. Osmose, Inc., 135 Cal. App. 4th 314 (2005) .............................................................. 11
5 B.W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal. App. 3d 1341 (1987) ........................... 21
6 Californians for Disability Rights, Inc. v. California Dep’t of Transp. 249 F.R.D. 334 (N.D. Cal.
7 2008) .................................................................................................................................... 17, 18
8 Classen v. Weller, 145 Cal. App. 3d 27 (1983) ............................................................................ 21
9 Estrada v. FedEx Ground Package Sys., Inc., 154 Cal. App. 4th 1 (2007) .................................. 17
10 Faulkinbury v. Boyd & Assocs., Inc., 216 Cal. App. 4th 220 (2013) ........................................... 17
11 Fireside Bank v. Sup. Ct., 40 Cal. 4th 1069 (2007) ...................................................................... 16
12 Gonzalez v. Downtown LA Motors, LP, 215 Cal. App. 4th 36 (2013) ......................................... 11
13 Hendershot v. Ready to Roll Transp., Inc., 228 Cal. App. 4th 1213 (2013) ................................. 16
14 Hicks v. Kaufman & Broad Home Corp., 89 Cal. App. 4th 908 (2001) ....................................... 17
15 Jaimez v. DAIOHS USA, Inc., 181 Cal. App. 4th 1286, 1308 (2010)........................................... 21
16 Johnson v. Sunrise Senior Living Management, Inc., No. CV1600443BRORAOX, 2016 WL
17 8929249 (C.D. Cal. May 5, 2016) ......................................................................................... 9, 10
18 Jordan v. L.A. County, 669 F.2d 1311 (9th Cir.) .......................................................................... 16
19 Lao v. H&M Hennes & Mauritz, L.P., No. 5:16-CV-00333-EJD, 2018 WL 3753708 (N.D. Cal.
20 Aug. 8, 2018) ......................................................................................................................... 6, 19
21 Lee v. Dynamex, Inc., 166 Cal. App, 4th 1325 (2008)............................................................ 16, 17
22 Linder v. Thrifty Oil Co., 23 Cal. 4th 429 (2000) ......................................................................... 16
23 Local Joint Exec. Bd. of Culinary/Bartender Trust Fund, 244 F.3d 1152 (9th Cir. 2001)........... 21
24 Martinez v. Joe's Crab Shack Holdings, 231 Cal. App. 4th 362 (2014) ................................. 16, 20
25 McGhee v. Bank of America, 60 Cal. App. 3d 442 (1976) ........................................................... 20
26 Medrazo v. Honda of N. Hollywood, 166 Cal. App. 4th 89 (2008) ........................................ 17, 20
27 Pace v. PetSmart Inc., No. SACV 13-00500 DOC, 2014 WL 2511297 (C.D. Cal. June 3, 2014)
28 .................................................................................................................................... 6, 18, 19, 20

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 Pedroza v. PetSmart, Inc., 2012 WL 9506073 (C.D. Cal. 2012) ................................................. 11
2 Reyes v. Bd. of Supervisors of San Diego County, 196 Cal. App. 3d 1263 (1987) ...................... 17
3 Rose v. City of Hayward, 126 Cal. App. 3d 926 (1981) ............................................................... 17
4 Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319 (2004) ..................................... 21, 22
5 Scott-George v. PVH Corp., 2015 WL 7353928 (E.D. Cal. Nov. 19, 2015) ................ 6, 18, 19, 22
6 Seastrom v. Neways, Inc. 149 Cal. App. 4th 1496 (2007) ............................................................ 20
7 Washington Mut. Bank v. Superior Court, 24 Cal. 4th 906 (2001) .............................................. 17
8 Statutes
9 Code Civ. Proc. § 382 ................................................................................................................... 16
10 Electronic Fund Transfer Act, 15 U.S.C. § 1693 ............................................................................ 8
11 Labor Code §§ 201................................................................................................................. passim
12 Labor Code §§ 202................................................................................................................. passim
13 Labor Code §§ 203................................................................................................................. passim
14 Labor Code §§ 212............................................................................................................ 7, 8, 9, 10
15 Labor Code §§ 213............................................................................................................ 7, 8, 9, 10
16 Regulations
17 Cal. Code Regs., tit. 8, § 13250 .................................................................................................... 11
18 Regulation E, 12 C.F.R. § 1005, et seq. .......................................................................................... 8
19 Other Authorities
20 Consumer Financial Protection Bureau Bulletin 2013-10 .............................................................. 8
21 DLSE Opinion Letter 2008.07.07 ................................................................................................... 8
22 DLSE Opinion Letter 2008.07.07-2................................................................................................ 8
23
24
25
26
27
28

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 I. INTRODUCTION
2 Plaintiff Victoria Tice’s (“Plaintiff’s”) and the putative Class’s claims revolve around
3 whether Defendant Trader Joe’s Company (“Defendant”) failed to pay all final wages due and
4 owing to employees for whom Defendant did not obtain authorization to pay their final wages in
5 the form of a paycard, aka ATM Card or COMDATA card. Defendant issued final wages to
6 employees on an ATM-like card that was subject to a host of fees, as opposed to via direct
7 deposit or check. Plaintiff did not consent to receive her final wages via paycard, but was
8 provided one upon her termination. In using the paycard at various locations, including Trader
9 Joe’s itself, she incurred fees that deprived her of all wages due and owed to her at her
10 termination.
11 Defendant has already ascertained more than 900 other individuals were also issued such
12 paycards without their authorization, just like Plaintiff. Just as other Courts have held in the
13 past, this Court will be able to answer the question of liability with a single stroke by
14 determining whether paying employees final wages on paycards, which are subject to various
15 fees, deprived those employees of their final wages upon separation of employment, as is
16 required by the California Labor Code.
17 At least three courts have already certified claims identical to those presented for
18 certification here over the last several years. Lao v. H&M Hennes & Mauritz, L.P., No. 5:16-
19 CV-00333-EJD, 2018 WL 3753708, at *11 (N.D. Cal. Aug. 8, 2018) (“The legality of
20 Defendant’s company policy—issuing final wages via Money Network Paycards without the
21 employee's authorization—may be determined without delving into the individualized issues
22 raised by Defendant.”); Scott-George v. PVH Corp., 2015 WL 7353928, at *6 (E.D. Cal. Nov.
23 19, 2015); Pace v. PetSmart Inc., No. SACV 13-00500 DOC, 2014 WL 2511297, at *6 (C.D.
24 Cal. June 3, 2014).
25 Defendant’s class-wide policies and procedures resulted in the issuance of final wages in
26 the form of paycards to employees without obtaining their written authorization, as required by
27 law. Defendant concedes that issuing paycards to employees as their final wages is the “default”
28 and that the paycards come with a host of fees employees unwittingly incur when trying to spend

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 the money that is rightfully theirs. California and federal law, however, require that the employer
2 obtain the employee’s written authorization before issuing wages in the form of a paycard. Here,
3 Defendant admits that it did not obtain such authorizations from at least 900 employees prior to
4 issuing final wages via paycard. Thus, this claim presents a pure question of law which can be
5 adjudicated on a class-wide basis.
6 Plaintiff demonstrates class treatment is appropriate here. Numerosity is easily met, as it
7 is not in dispute that hundreds of employees make up the putative class. Ascertainability is also
8 met because determining who is in the class is simply a matter of reviewing Defendant’s records,
9 which Defendant has already done. There is a common question that applies to the entire putative
10 class: did employees consent to receiving final wages in the form of a paycard upon separation of
11 employment? Manageability will not pose an issue, as any trial would just be a matter of using
12 Defendant’s payroll records to show which employees separated from employment, were issued
13 final wages in the form of a paycard, and did not sign a consent form. Whether employees
14 incurred fees after receiving wages on a paycard, can be determined by reference to the records
15 of the entity that provided the paycards. Finally, Plaintiff’s claims are typical of the putative
16 class, as she was a California employee during the class period who received final wages via a
17 paycard and did not consent to receive her final wages via this method. Finally, Plaintiff and her
18 counsel have met the adequacy requirements. Therefore, class certification is proper.
19 II. CALIFORNIA LAW PROHIBITS EMPLOYERS FROM DISBURSING WAGES
20 VIA PAYCARD WITHOUT EXPRESS EMPLOYEE CONSENT
21 Unless the employee gives specific authorization to do so, Labor Code §§ 212 & 213
22 provide that wages (including terminating wages) must be paid in a manner that is “negotiable
23 and payable in cash, on demand, without discount.” Cal. Lab. Code §§ 212(a) & 213(d)
24 (emphasis added). Indeed, as the latter part of Labor Code § 213(d) explains, such payment
25 methods must still comply with Labor Code §§ 201-203 (“If an employer discharges an
26 employee or the employee quits the employer may pay the wages earned and unpaid at the time
27 the employee is discharged or quits by making a deposit authorized pursuant to this subdivision,
28 provided that the employer complies with the provisions of this article relating to the payment of

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 wages upon termination or quitting of employment”). Cal. Lab. Code § 213(d).
2 While the legality of payment of wages via paycards has not been extensively ruled upon
3 by the Courts, the legality of such payments through paycard instruments has been squarely
4 addressed by the California Division of Labor Standards and Enforcement (the “DLSE”), the
5 agency in charge of enforcing California’s Labor Code. Specifically, the DLSE, has issued two
6 opinion letters on the very topic of payment by electronic paycards and the legality thereof. (See
7 DLSE Opinion Letters 2008.07.07 and 2008.07.07-2, true and correct copies of which are
8 attached as Exhibits A and B, respectively, to Plaintiff’s Request for Judicial Notice (“PRJN”)). 1
9 The Opinion Letters concern the legality of the issuance of pay via paycard method. In
10 both instances the DLSE issued near identical requirements, setting forth the criteria required for
11 paycards to be legal. In both Opinion Letters, the DLSE specifically states that the paycard
12 method is only to be used as an “alternative” method of payment, and that participation in the
13 program must be “optional.” The DLSE also states that the employee must “voluntarily and
14 specifically authorize” the payment of wages via paycard. PRJN, Ex. A, at pg. 6.
15 If the paycard imposes any fees and charges on employees in accessing their wages, the
16 paycard also violates Labor Code §§ 212 & 213. Moreover, paycards can also violate Labor
17 Code §§ 201-203 if the employee cannot fully access their earned wages as a result of any fees or
18 charges.
19 Labor Code § 212 provides:
20 (a) No person, or agent or officer thereof, shall issue in payment of
wages due, or to become due, or as an advance on wages to be
21 earned:
22 (1) Any order, check, draft, note, memorandum, or other
acknowledgment of indebtedness, unless it is
23 negotiable and payable in cash, on demand, without
discount, at some established place of business in the
24
25
1
The federal government has also concluded that an employer cannot unilaterally require
26 employees to accept payment of wages via paycard and that such conduct violates the Electronic
Fund Transfer Act (the “EFTA”) and Regulation E, codified at 12 C.F.R. § 1005, et seq. As
27 explained by the federal government, “Regulation E prohibits employers from mandating that
employees receive wages only on a payroll card of the employer’s choosing.” See Consumer
28 Financial Protection Bureau Bulletin 2013-10, attached as Exhibit C to Plaintiff’s Request for
Judicial Notice.
8

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 state, the name and address of which must appear on the
instrument, and at the time of its issuance and for a
2 reasonable time thereafter, which must be at least 30
3 days, the maker or drawer has sufficient funds in, or
credit, arrangement, or understanding with the drawee
4 for its payment.
5 (2) Any scrip, coupon, cards, or other thing redeemable, in
6 merchandise or purporting to be payable or redeemable
otherwise than in money.
7
(b) Where an instrument mentioned in subdivision (a) is protested
8 or dishonored, the notice or memorandum of protest or
9 dishonor is admissible as proof of presentation, nonpayment
and protest and is presumptive evidence of knowledge of
10 insufficiency of funds or credit with the drawee.
11 (c) Notwithstanding paragraph (1) of subdivision (a), if the drawee
12 is a bank, the bank's address need not appear on the instrument
and, in that case, the instrument shall be negotiable and
13 payable in cash, on demand, without discount, at any place of
business of the drawee chosen by the person entitled to enforce
14 the instrument.
15 Labor Code § 213, further states in pertinent part:

16 Nothing contained in Section 212 shall:

17 (d) Prohibit an employer from depositing wages due or to become
due or an advance on wages to be earned in an account in any
18 bank, savings and loan association, or credit union of the
19 employee's choice with a place of business located in this state,
provided that the employee has voluntarily authorized that
20 deposit. If an employer discharges an employee or the
employee quits the employer may pay the wages earned and
21 unpaid at the time the employee is discharged or quits by
22 making a deposit authorized pursuant to this subdivision,
provided that the employer complies with the provisions of this
23 article relating to the payment of wages upon termination or
quitting of employment.
24
25 (Emphasis added.)
26 Courts addressing these requirements determine that consent is necessary for a paycard
27 program to comply with California law. For example, in Johnson v. Sunrise Senior Living
28 Management, Inc., the Central District of California analyzed a claim that the defendant’s “ATM

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 Card Pay Kit” violated California law because it came with associated fees and limits on
2 employees’ ability to withdraw their wages. No. CV1600443BRORAOX, 2016 WL 8929249, at
3 *8–9 (C.D. Cal. May 5, 2016). After analyzing the DLSE Opinion letters addressed above and
4 the language of the statute, the Court denied the defendant’s motion to dismiss the plaintiff’s
5 claim under Labor Code §§ 201–203, 212, and 213. Id. at *8–*11. The Court explained “that the
6 voluntariness requirement is vital to the legality of pay programs similar to the one at issued in
7 this action.” Id. at *11.
8 Here, Defendant’s paycard policy violates these legal requirements. As Defendant readily
9 admitted, prior to the filing of this lawsuit, in February 2020, its company-wide policy and
10 practice during the proposed class period was to automatically issue terminating wages to
11 departing employees via paycard. Deposition of Lisa Reese 2 (“Reese Depo.”) at 49:24–50:8 (“In
12 California, we would default it to a payroll card.”). Employees who received their wages during
13 employment via paper check or direct deposit were issued final wages on a paycard because that
14 was the “default.” Id. In other words, employees had no real meaningful choice/option in how to
15 receive their final wages except via Defendant’s paycard.
16 Further, the paycard also imposes various fees on employees, which the DLSE has
17 concluded violate Labor Code §§ 212 and 213 and, to the extent that these fees hinder access to
18 the full wages earned, also violate Labor Code §§ 201-203.
19 With respect to payment of final wages, California law requires that, upon termination of
20 employment, all earned wages must be paid to the employee on the employee’s last date of
21 employment, or if the employee resigns and does not provide at least 72 hours’ notice of his/her
22 intention to quit/resign, the employer shall have up to 72 hours after the last date of employment
23 to pay the employee his/her final wages. Cal. Labor Code §§ 201 and 202. Thus, the maximum
24 amount of time an employer is allowed to pay a departing employee’s final wages is 72
25 hours/3days. Under Labor Code § 203, if an employer willfully fails to comply with the
26
27 2
The Deposition of Lisa Reese is attached as Exhibit B to the Declaration of Max W. Gavron.
Ms. Reese’s deposition shall hereinafter be cited to as “Reese Depo. page:line,” Defendant
28 designated Ms. Reese as the person most qualified with respect to the topics relevant to this
action.
10

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 requirements of Labor Code §§ 201 or 202, the wages of the employee continue as a penalty
2 until paid (for up to 30 days). Sections 201 through 203 were enacted in 1937. Thus, this has
3 been the law for nearly 100 years.
4 As explained by the Court of Appeal in Gonzalez v. Downtown LA Motors, LP, 215 Cal.
5 App. 4th 36, 54 (2013):
6 [T]o be at fault within the meaning of [section 203], the employer’s refusal to pay
need not be based on a deliberate evil purpose to defraud workmen of wages
7 which the employer knows to be due. As used in section 203, “willful” merely
8 means that the employer intentionally failed or refused to perform an act which
was required to be done.’
9 Id. (Emphasis in original, citing Armenta v. Osmose, Inc., 135 Cal. App. 4th 314 (2005)).
10 For example, in cases involving the exemption defense, an employer who has a good
11 faith belief that its employees are exempt may not be subject to waiting time penalties pursuant
12 to Labor Code § 203. See Cal. Code Regs., tit. 8, § 13250 (“A ‘good faith dispute’ ... occurs
13 when an employer presents a defense, based in law or fact which, if successful, would preclude
14 any recovery on the part of the employee.”); Pedroza v. PetSmart, Inc., 2012 WL 9506073, *5-6
15 (C.D. Cal. 2012) (good faith assertion of exemption defense may qualify as a good faith dispute).
16 The basis of Plaintiff’s claim for violation of the waiting time penalty statutes is the fees
17 associated with using the paycard issued by Defendant to its California employees by “default.”
18 When an employee receives their final wages on a paycard and is subjected to fees, they have not
19 received all their final wages because some of those wages have been used to pay the fees
20 associated with the paycard simply so the employee can access his/her wages. Whereas here, the
21 putative class members did not authorize payment on a paycard, the willfulness and harm caused
22 by Defendant’s conduct is apparent.
23 III. FACTS AND PROCEDURAL STATUS
24 A. Defendant’s Payroll Practices
25 Defendant is a well-known and popular grocery store chain. During their employment,
26 Defendant’s employees are allowed to choose how their wages are disbursed during regular
27 payroll periods. Reese Depo. 31:8-21, 40:9-23. Employees may elect to be paid via direct
28 deposit, paycard, or paper check. Reese Depo. 31:8-25, 40:9-23, 47:36-48:7. The selection may

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 be entered during the on-boarding process or at any other time via Defendant’s online portal,
2 which reflects the authorization to be paid via a particular format. Reese Depo. 31:8-37:3.
3 Defendant explains to its employees that authorization for payment via direct deposit during
4 employment must be provided to Human Resources. Reese Depo. 42:9–14, Ex. 2 (TJ_000027).
5 As explained by Defendant, the default method of payment for regular payroll processes
6 is through a paper check. Reese Depo. 39:25-40:23. If an employee requests payment via direct
7 deposit or elects to receive wages loaded onto a paycard, he or she must specifically authorize
8 that method through Defendant’s online self-service portal. Reese Depo. 32:7-33:4, 33:8-25,
9 41:12-43:4, 43:22-44:10, 36:4-37:3, Ex. 2. Thus, unless specifically authorized by the employee,
10 payment of the normal payroll wages are not disbursed via the paycard, with the exception of an
11 employee’s final wages, which pursuant to Defendant’s policies and practices, are paid via
12 paycard by default even when the employee has not expressly authorized the payment of wages
13 via paycard.
14 1. Defendant’s Paycard Policies and Practices
15 For wage payment purposes, Defendant uses payroll cards or paycards provided by its
16 vendor Comdata. Reese Depo. 101:7-13. The Comdata Payroll MasterCard resembles an ATM
17 card in appearance and may be used at ATMs or at point-of-sale terminals. Reese Depo. Ex. 6.
18 Employees who use the paycards in certain fashions are subject to a host of fees. See id.;
19 Declaration of Victoria Tice (“Tice Decl.”) ¶ 5, Ex. B.
20 The Comdata payroll cards are delivered to Defendant’s payroll processing department
21 and individual stores as blank cards. Reese Depo. 101:7-13. Funds are then electronically
22 transmitted from Defendant’s payroll account into individual Comdata accounts associated with
23 specific paycards. Reese Depo. 73:17-74:9, 101:7-13. The funds are available for use by the
24 employee once the transaction is complete. Reese Depo. 73:17-74:9. Wages issued via these
25 Comdata paycards can only be accessed after the paycard is activated. Reese Depo. 74:3-9. To
26 manage these funds like a typical banking card, employees must log onto the Internet, register
27 and activate their paycard on Comdata’s website, and set up an account profile or call a toll-free
28 number. See Reese Depo. Ex. 6.

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 Instructions accompanying the paycard state that employees may access their wages
2 through the paycard itself, such as inserting the card into an ATM machine and withdrawing cash
3 or using the paycard to make actual purchases, similar to an ATM or credit card. Reese Depo.
4 Ex. 6. Alternatively, the employee may cash out the funds at a participating bank location after
5 following a highly specific set of instructions, which may result in a $5.00 cardholder fee if not
6 followed correctly. Id.
7 Regardless of which method is used obtain/access the money on the Comdata paycard,
8 there are various fees associated with its use. These fees include: $3.50 for out-of-network ATM
9 withdrawals, $0.50 for cashback with purchase at point of sale using a PIN, $0.50 for point of
10 sale transactions using a PIN, $3.50 for ATM balance inquiry, and $2.95 per month inactivity
11 fee, charged after 180 days of inactivity. Reese Depo. at 95:8–16, Exs. 5–6; Tice Decl. ¶ 5, Ex.
12 B (TICE__000878-879). Employees who receive a Comdata paycard are given forms that inform
13 them they may incur fees, but those employees included in Plaintiff’s putative class definition
14 did not consent to receive their wages on a paycard. Reese depo. 98:22-100:4, Ex. 6.
15 2. Defendant’s Terminating Pay Policies and Practices
16 As a matter of policy, for an employee that resigns or is fired, the employee’s final pay
17 upon separation is processed through a termination pay request. Reese depo. 60:22-62:14. The
18 termination pay request is submitted from a store to Defendant’s payroll department, informing
19 them of the employee’s name, date of separation, and other pertinent information. Id. This
20 communication does not indicate whether an employee consented to receive their wages on a
21 paycard. Id. Once the payroll department receives the termination pay request, the employee’s
22 final wages are calculated and then loaded onto a Comdata paycard. Reese depo. 73:10-74:9.
23 Payment of final wages via the Comdata paycard is the default method even where an employee
24 has not specifically authorized payment that way. Reese depo. 49:19-50:8, 51:10-18, 53:3-5.
25 Defendant, however, knows that written authorization is required, as evidenced by the fact that it
26 requires written authorization for direct deposit during normal employment, Reese Depo. 42:9–
27 14, Ex. 2 (TJ_000027), and because it maintains consent forms for some employees. Reese
28 Depo. 54:19–55:6. Despite its knowledge of the requirement, it issues paycards to employees

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 even where they do not consent. Reese depo. 49:19-50:8, 51:10-18, 53:3-5.
2 If an employee authorized payment on a paycard, Defendant expects that they have
3 signed a written consent form. Reese depo. 89:9–13. While Defendant has produced consent
4 forms for some employees, it is undisputed that Trader Joe’s does not have the consent forms for
5 the at least 900 employees that received final wages on a paycard and who comprise the putative
6 Class. Gavron Decl. ¶ 2, Ex. A (Defendant’s Second Supplemental Responses to SROGS).
7 While Defendant claims that a separating employee may reject the Comdata paycard, doing so
8 results in a delay of payment as the employee must wait to receive a paper check for his or her
9 final wages in the mail (which would itself be a violation of Labor Code §§ 201-203). Reese
10 depo. 47:25-52:14, 53:3-13, 53:21-55:6, 74:10-75:11, 120:3-8. In other words, there is no way
11 for Defendant to issue an employee a paper check for his/her final wages on the last day of work.
12 Reese depo. 120:15-121:3.
13 B. Defendant’s Policy Change After Filing of Lawsuit
14 In February 2020 after Plaintiff filed this lawsuit, Defendant revised its consent form to
15 explicitly include language informing its employees of the option to reject the Comdata paycard.
16 Reese depo. 82:14-83:17, 90:2-91:18, 92:12-95:16, 96:1-9, 97:11-24, 107:5-111:16, Exs. 4, 5, 8.
17 Defendant explained that “it’s part of the process now…to request consent prior to giving
18 [employees] the card.” Reese depo. 124:13–125:1 (emphasis added).
19 C. Plaintiff’s Employment with Defendant
20 Plaintiff worked as a retail store worker or “Mate” for Defendant from about 2011 to
21 January 27, 2020. Declaration of Victoria Tice (“Tice Decl.”) ¶ 2. Plaintiff worked at
22 Defendant’s grocery stores located in Santa Barbara and Goleta. Id. During her employment,
23 Plaintiff had regular pay days and typically received her wages via direct deposit, which is the
24 manner in which she authorized her wages to be paid. Id. ¶ 3. Plaintiff has never authorized or
25 consented to receive her wages on a paycard. Id. ¶¶ 3, 5.
26 Upon her termination, Plaintiff received a package in the mail that included a termination
27 notice, paystubs, and a debit or credit card-type paycard called Comdata Payroll MasterCard.
28 Tice Decl. ¶ 4. Instructions regarding how to use the paycard were also included. Id. Plaintiff’s

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 final wages were pre-loaded on the Comdata paycard. Id. Again, Plaintiff did not authorize or
2 consent to receive her final wages on a paycard. Id. ¶ 5. Plaintiff incurred fees at different
3 locations (including Trader Joe’s itself!) when using the card. Id., Ex. B. Thus, Plaintiff did not
4 receive all her final/earned wages because she incurred fees in order to access her final wages,
5 which thus deprived her of all her wages.
6 D. Procedural History
7 Plaintiff filed her lawsuit on February 14, 2020, in Santa Barbara County Superior Court.
8 Plaintiff’s counsel has vigorously litigated this matter. Plaintiff’s counsel has been
9 diligent in conducting discovery, including propounding written discovery, taking the deposition
10 of Defendant’s Person Most Knowledgeable, and obtaining documents relevant to class
11 certification. Gavron Decl. ¶ 12.
12 E. The Class List
13 During the discovery stage of this case, Plaintiff propounded questions to Defendant
14 regarding the number of employees who separated from employment from February 14, 2017,
15 through the present, the number of paycards issued, and other topics. On February 3, 2021,
16 Defendant served its Second Supplemental Responses to Plaintiff’s Special Interrogatories, Set
17 One. Gavron ¶ 2, Ex. A. Defendant’s Second Supplemental Responses identify 941 former
18 employees who were employed by Defendants in the State of California at any time from
19 February 14, 2017, through the present, and who were paid on paycards at the time of separation
20 of employment for whom Defendant does not have a written authorization for payment via
21 paycard. Id. Because Defendant has already identified those individuals and provided their
22 contact information, the distribution of class notice will easily be achieved. Gavron Decl. ¶ 4.
23 IV. THE CLASS SHOULD BE CERTIFIED
24 Plaintiff seeks to certify a Class that consists of All former employees who were
25 employed by Defendants in the State of California at any time from February 14, 2017, through
26 the present, and who were paid on paycards at the time of separation of employment for whom
27 Defendant does not have a written authorization for payment via paycard. Defendant has already
28 identified more than 900 such individuals.

PLAINTIFF’S NOTICE OF MOTION AND MOTION FOR CLASS CERTIFICATION
1 Class actions are statutorily authorized “when the question is one of common or general
2 interest, of many persons, or when the parties are numerous, and it is impracticable to bring them
3 all before the court.” Code Civ. Proc. § 382; Lee v. Dynamex, Inc., 166 Cal. App. 4th 1325, 1332
4 (2008). Thus, class certification is appropriate where the party moving for class certification
5 shows the following: 1) the proposed class is numerous yet ascertainable; 2) common issues of
6 law and fact predominate; 3) the claims of the proposed class representatives are typical o

Case Info

Judge

Anderle, Thomas P Track Judge’s New Case

Case No.

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Document Filed Date

June 22, 2021

Case Filing Date

February 14, 2020

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Parties

Gavron, Max W Attorney for the Plaintiff
Marder, William L Attorney for the Plaintiff
Tice, Victoria Plaintiff
Trader Joe's Company Defendant
Wasserman, Helene J Attorney for the Defendant
Shannon Boyce Attorneys for Defendants
Melissa Velez Attorneys for Defendants
Larry Lee Attorneys for Plaintiffs
Veronica Ramos Attorneys for Plaintiffs
Thomas Pier Attorneys for Plaintiffs
Kennell Sambour Attorneys for Plaintiffs
David Kneale Attorney
Martha Escutia Attorney
Amagda Perez Attorney
Darrell Steinberg Attorney
Ellen Corbett Attorney
Joel Garcia Attorneys for Defendants
Donald Miller Attorney

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Motion-Secondary: Victoria Tice, etc., v. Trader Joe’s Company

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