Motion to Strike 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 Helene Wasserman, Bar No. 130134
hwasserman@littler.com
2 Shannon R. Boyce, Bar No. 229041
sboyce@littler.com ELECTRONICALLY FILED
3 Melissa Velez, Bar No. 316714 Superior Court of California
mvelez@littler.com County of Santa Barbara
4 LITTLER MENDELSON P.C. Darrel E. Parker, Executive Officer
2049 Century Park East 12/7/2021 1:23 PM
5 5th Floor By: Sarah Sisto, Deputy
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,
DEFENDANT TRADER JOE’S
14 Plaintiff, COMPANY’S REPLY IN SUPPORT OF
MOTION TO STRIKE PLAINTIFF
15 v. VICTORIA TICE’S
REPRESENTATIVE PAGA CLAIM
16 TRADER JOE’S COMPANY, a California
corporation; and DOES 1 through 50, inclusive, ASSIGNED FOR ALL PURPOSES TO
17 JUDGE THOMAS P. ANDERLE, DEPT. 3
Defendant.
18 Date: December 14, 2021
Time: 10:00 a.m.
19 Dept: 3

20 Trial Date: None Set
Complaint Filed: February 14, 2020
21

28
LITTLER MEND ELSO N P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 TABLE OF CONTENTS

2 PAGE

3 I. INTRODUCTION ................................................................................................................... 4
4 II. LEGAL ARGUMENT ............................................................................................................. 5
5 A. Wesson Establishes the Court’s Authority To Strike An Unmanageable
Representative PAGA Claim, As Plaintiff Presents Here. .......................................... 5
6
B. Plaintiff Mischaracterizes California Legal Requirements As Well As The
7 Structure of Trader Joe’s Voluntary Pay Card Program. ............................................. 6
8 1. Trader Joe’s Paycard Program Admittedly Issues All Waged Owed,
Without Discount, As The Court Already Recognized That There Are
9 Numerous Ways To Use The Paycard Without Incurring Fees. ...................... 7
10 2. Trader Joe’s Paycard Program Is Voluntary In Nature And Plaintiff’s
Assertions Otherwise Are Unsupported and Woefully Mischaracterize
11 The Evidence. .................................................................................................. 8
12 3. Plaintiff’s Assertion That She Can Rely Upon Sampling At Trial Is
Misplaced And Ignores Trader Joe’s Due Process Rights. ............................ 10
13
III. CONCLUSION ...................................................................................................................... 12
14

28
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LITTLER MEND ELSO N, P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 TABLE OF AUTHORITIES

2 Page

4 Cases
5 Arias v. Superior Court,
46 Cal. 4th 969 (2009) ...........................................................................................................5, 6
6

7 Duran v. U.S. Bank Nat’l Assoc.,
59 Cal. 4th 1 (2014) ...........................................................................................................10, 11
8
Johnson v. Sunrise Senior Living,
9 2016 U.S. Dist. LEXIS 189479 (C.D. Cal. 2016)......................................................................8

10 Ortiz v. Randstad,
2015 U.S. Dist. LEXIS 30660 (N.D. Cal. 2015) .......................................................................8
11
Solis v. Regis Corp.,
12
612 F. Supp. 2d 1085 (2007) ...................................................................................................10
13
Wal-Mart Stores, Inc. v. Dukes,
14 131 S. Ct. 2541 (2011) .............................................................................................................10

15 Wesson v. Staples the Office Superstore, LLC,
68 Cal. App. 5th 746 (2021) ..................................................................................................5, 6
16
Statutes
17
California Labor Code § 212 .............................................................................................6, 7, 8, 10
18

19 California Labor Code § 212(a) .......................................................................................................7

20 California Labor Code § 213 .......................................................................................................6, 8

21 California Labor Code § 432 ...........................................................................................................8

28
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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
1 I. INTRODUCTION

2 Plaintiff’s Opposition underscores why this Court should strike her PAGA claim. Rather

3 than present any means by which this matter can be manageably tried, she instead devotes

4 significant portions of her Opposition to mischaracterizing both the law and the facts. Plaintiff

5 attempts to allege there was some type of systematic unlawful policy or practice applicable to the

6 entire group of allegedly aggrieved former Crew Members, yet this assertion has no basis in the

7 facts of this case. To the contrary, the Court already recognized in its Order denying class

8 certification that Trader Joe’s paycard program is lawful:

9 …in terms of whether Trader Joe's policy fully complied with the DSLE Opinion
Letters, the evidence before the Court shows that there were multiple means of
10
using the card without incurring fees, and that the policy was therefore in
11 compliance with the DSLE finding that providing for "at least one transaction per
pay period without fee" was the hallmark of the legal use of a paycard for payment
12 of wages.
13 (Court Order Denying Class Certification, p. 20).

14 At most, the issue of consent remains disputed, which requires a highly individualized

15 inquiry of the circumstances under which each individual former Crew Member received his or her

16 final wages via paycard. Indeed, despite Plaintiff’s baseless assertions otherwise, written consent

17 is not required under California law and there are any number of valid reasons that Trader Joe’s

18 may not be able to presently produce a signed consent form. Crew Members may have taken their

19 signed consent form with them at termination, forms may be misplaced, or Crew Members may

20 have verbally assented to receiving their paycards. There are numerous individualized

21 circumstances, none of which amount to any violation the Labor Code. Thus, the true scope of

22 allegedly aggrieved former Crew Members is not even known, as the question of consent is

23 inherently subjective. These individualized issues are further unmanageable at trial, as there is no

24 method by which Plaintiff can demonstrate liability on a representative basis. To the contrary, any

25 trial in this matter would require the testimony of hundreds of allegedly aggrieved former Crew

26 Members, as well as hundreds of members of management, to dissect the individualized

27 circumstances under which any single Crew Member received his or her final wages.

28 Further, Plaintiff must identify the “aggrieved parties” for whom she seeks to recover
LITTLER MEND ELSO N P.C.
2049 C entury Park East

4
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 penalties, and permit Trader Joe’s to contest such claims consistent with basic principles of due

2 process. In order to do this, each individual alleged violation must be examined separately and

3 specifically. Rather than addressing this unsurmountable challenge, Plaintiff instead

4 mischaracterizes the paycard program and generically responds that she can simply point to data

5 demonstrating that certain former Crew Members incurred fees. However, records from Comdata

6 do not and cannot tell the whole story. Records of potential fees incurred cannot explain whether

7 the former Crew Member consented to the paycard in the firstplace or why the Crew Member

8 incurred fees. To learn the whether and the why, one must ask the individual former Crew Member.

9 Plaintiff’s claims simply cannot be manageably tried in a manner that comports with due

10 process requirements. Accordingly, Trader Joe’s requests the Court strike the second cause of

11 action for violation of PAGA in its entirety.

12 II. LEGAL ARGUMENT
13 A. Wesson Establishes the Court’s Authority To Strike An Unmanageable
Representative PAGA Claim, As Plaintiff Presents Here.
14
Plaintiff spends a significant portion of her Opposition erroneously asserting that Trader
15
Joe’s argued that the Court’s class certification ruling in this matter is controlling with regard to
16
the instant Motion to Strike. In so arguing, Plaintiff cites to Arias v. Superior Court, 46 Cal. 4th
17
969, 975 (2009), seemingly to suggest that there is no affirmative manageability requirement on
18
PAGA actions. However, Arias only stated that class action requirements need not be met in PAGA
19
actions. Arias, 46 Cal. 4th at 975. Arias does not stand for the proposition that courts should
20
abdicate their equitable responsibility to manage representative actions. That responsibility is
21
confirmed by the several cases cited in Trader Joe’s moving papers that struck PAGA claims based
22
on unmanageability. (Trader Joe’s Motion to Strike, pp. 13-15). In several of these cases, the courts
23
noted that although the Plaintiff did not have to satisfy specific class certification requirements in
24
order to proceed with a PAGA representative action, the factual findings the courts made during
25
the class certification phase – that highly individualized inquiries were needed to determine liability
26
– made it clear that the PAGA representative actions were unmanageable and must be stricken.
27
That is exactly what Trader Joe’s asserts here – the Court’s class certification ruling is instructive
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

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 as the very issues which prevented class certification also render the matter unsuitable for trial on

2 a representative basis. Specifically, the individualized nature of the claims at issue which are not

3 subject to common proof and, accordingly, not manageable at trial.

4 Further, Wesson v. Staples, Inc., directly reconciled its holding with the prior Arias holding:

5 …the defendant urged our Supreme Court to construe PAGA “as requiring that all
6 actions under that act be brought as class actions.” (Arias, at p. 984.) The high court
declined, holding that PAGA claims need not satisfy class action requirements.
7 (Arias, at p. 975.) In so doing, the court noted that PAGA actions may be brought
as class actions but explained that at issue was “whether such actions must be
8 brought as class actions.” (Arias, at p. 981, fn. 5.) Thus, Arias stands for the
proposition that PAGA claims need not qualify as class actions. Arias did not hold
9
that any consideration relevant to class action certification is necessarily
10 irrelevant in the context of PAGA. And nowhere did the court suggest that trial
courts could not limit or preclude an unmanageable PAGA action, if necessary.
11
Wesson v. Staples the Office Superstore, LLC, 68 Cal. App. 5th 746, 767 (2021) (emphasis added).
12
Plaintiff’s assertion that Arias foreclosed any manageability requirement is thus misplaced and
13
contrary to Wesson’s established precedent.
14
Moreover, while Plaintiff makes a half-hearted attempt to distinguish Wesson from the
15
instant matter, the parallels are undisputable. As in Wesson, any liability determination here is an
16
inherently factual inquiry. As in Wesson, any trial would require every single allegedly aggrieved
17
employee/former Crew Member to be called as a witness to determine (1) whether they consented
18
to receipt of the paycard; and (2) if – and more importantly why – they incurred fees. Notably, these
19
questions require testimony from not only the 348 allegedly aggrieved former Crew Members, but
20
also the testimony of potential members of management present at each final pay meeting.
21
Plaintiff’s attempt to distinguish Wesson is thus unavailing.
22
B. Plaintiff Mischaracterizes California Legal Requirements As Well As The
23 Structure of Trader Joe’s Voluntary Pay Card Program.

24 Despite Plaintiff’s lengthy discussion of the black letter law in her Opposition, there is no

25 dispute that Trader Joe’s voluntary paycard program complies with California law. Plaintiff

26 acknowledges that Labor Code sections 212 and 213 govern the way employers may make payment

27 of wages to employees in California. However, while Plaintiff attempts to rely on these two

28 sections together to establish a failure to pay “without discount,” Trader Joe’s pay card practices
LITTLER MEND ELSO N P.C.
Attorneys at Law

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2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 comply with both.

2 1. Trader Joe’s Paycard Program Admittedly Issues All Waged Owed,
Without Discount, As The Court Already Recognized That There Are
3 Numerous Ways To Use The Paycard Without Incurring Fees.
4 As previously noted in Trader Joe’s moving papers, Labor Code section 212 prohibits an

5 employer from “issu[ing] in payment of wages due... [a]ny order, check, draft, note, memorandum,

6 or other acknowledgment of indebtedness, unless it is negotiable and payable in cash, on demand,

7 without discount.” See Cal. Lab. Code § 212(a). DLSE opinion letters interpreting this section, to

8 which Plaintiff cites, establish that an employer may pay its employees with “payroll debit cards,”

9 or “paycards,” where (1) the “wages [are] payable at some established place of business in the state

10 and there be at least 30 days of sufficient funds for payment,” (2) the employees are “fully informed

11 of the service and procedures and that it is represented as an alternative method for wage payment

12 for which their participation is optional,” (3) the employees receive “an itemized wage statement,”

13 and (4) “at least one transaction per pay period [is] without fee.” DLSE Opinion Letter 2008.07.07,

14 pp. 8-9 (noting “[t]he fact that there are other options for employees to choose such as to withdraw

15 a lesser amount does not render the use of a payroll card violative of the employee’s right to full

16 and prompt payment of wages”).

17 Plaintiff cannot credibly dispute that Trader Joe’s paycard program complies with the above

18 requirements. The Court already recognized as much in its ruling on class certification. (See Court

19 Order Denying Class Certification, p. 19). Further, Plaintiff admitted as much at her deposition, as

20 the paycard materials expressly provide that: (1) the paycards can be used to obtain wages at

21 countless locations in California, including at any ATM or bank that accepts Mastercard (which is

22 most major banks); (2) wages remain on the paycard until withdrawn by the Crew Member;

23 (3) Crew Members are provided documents that inform them of the details of the

24 program, including the circumstances under which withdrawing funds and making balance

25 inquiries are free of charge and when such activities will result in the imposition of fees; (4) use of

26 the paycard is optional; (5) Crew Members receive an itemized wage statement along with the

27 paycard; and (6) the program provides for at least one transaction per pay period without any

28 transaction fee, whether at the bank or through use of the extensive All Points network of ATMs.
LITTLER MEND ELSO N P.C.
Attorneys at Law

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2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 (Pl. Depo., 89:21-91:5, 115:3-22, 116:4-18, 136:4-13, 153:13-25, 156:19-157:19, Exh. 7).1

2 Rather than acknowledge any of the above, Plaintiff’s Opposition instead makes multiple

3 references to the alleged “host of fees” applicable to the pay cards. (See, e.g., Plaintiff’s Opposition

4 (“Pl. Oppo.”), 5:5-6, 10:10-11, 12:6-7). These references not only mischaracterize the evidence

5 before this Court, they are entirely irrelevant. Indeed, as noted by the DLSE, paycard programs are

6 permissible where they provide, “for at least one transaction per pay period without fee. By

7 providing one free transaction, the payroll debit card programs effectively provide for immediate

8 and free access to an employee’s wages in full.” DLSE Opinion Letter 2008.07.07; Ortiz v.

9 Randstad, 2015 U.S. Dist. LEXIS 30660, *13 (N.D. Cal. 2015) (finding no unpaid minimum wage

10 claim where employees were given at least one transaction per pay period without transaction fee).

11 Trader Joe’s paycard program thus properly compensates former Crew Members all wages owed,

12 without discount, as required by California law.

13 2. Trader Joe’s Paycard Program Is Voluntary In Nature And Plaintiff’s
Assertions Otherwise Are Unsupported and Woefully Mischaracterize
14 The Evidence.
15 Further misplaced is Plaintiff’s argument that the pay card program is not voluntary simply

16 because Trader Joe’s is unable to presently locate a written consent form for certain former Crew

17 Members. First, Plaintiff conflates the notion of Trader Joe’s “default” practice with a “mandatory”

18 practice. The evidence here establishes that while Trader Joe’s may default to payment via paycard

19 when a crew member separates employment, the program remains voluntary in nature. Indeed,

20 Crew Members have exercised the option to request checks in lieu of paycards if they so wished.

21 (Reese Decl., ¶ 6; Reese Depo., 86:2-7; 87:23-88:6). The instant matter is thus distinguishable from

22 the circumstances in Johnson v. Sunrise Senior Living, 2016 U.S. Dist. LEXIS 189479 (C.D. Cal.

23 2016), cited by Plaintiff, where the paycard program was mandatory.

24 Moreover, nothing within California Labor Code §§ 212 to 213, nor the DLSE Opinion

25 Letters cited by Plaintiff, requires that consent to be in writing. See e.g., Labor Code § 213 (stating

27
1
28 Copies of all referenced deposition citations are attached to the Declaration of Shannon R. Boyce,
filed concurrently herewith.
LITTLER MEND ELSO N P.C.
Attorneys at Law

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2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 requirement as simply “the employee has voluntarily authorized that deposit”). 2 Written consent

2 is thus not required and there are any number of valid reasons that Trader Joe’s may not be able to

3 produce a signed consent form. As previously detailed in Trader Joe’s moving papers, Crew

4 Members may have taken their signed consent form with them at termination, forms may be

5 misplaced, or Crew Members may have verbally assented to receiving their paycards. (Alvira

6 Decl., ¶ 8; Baklayan Decl., ¶¶ 2, 4, 7; Banner Decl., ¶¶ 7-11; Cahill Decl., ¶ 3; Faelz Decl., ¶ 2;

7 Hammond Decl., ¶ 6; Lopez Decl., ¶ 4; McArdle Decl., ¶ 6; Norton Decl., ¶¶ 2, 5; Reese Decl., ¶

8 5; Wastler, ¶¶ 5-6). None of these circumstances evidence a lack of consent by the individual Crew

9 Member, though Plaintiff attempts to misconstrue the evidence by claiming “Plaintiff has already

10 demonstrated that Defendant does not have authorizations for approximately 348 individuals that

11 were employed during the PAGA period.” (Pl. Oppo., 21:10-12). That is simply not the case.

12 There are numerous individualized circumstances under which a written consent form may not

13 exist, none of which amount to any violation the Labor Code, thus making this matter

14 unmanageable for trial on a representative basis.

15 Further, Plaintiff’s assertion that the typical communications sent from the Payroll

16 Department somehow negate these individualized circumstances misstates the evidence. While

17 there may be typical communications that were sent to the individual stores at the time of a former

18 Crew Member’s separation of employment, these communications are not necessarily reflective of

19 what was communicated between an individual manager and separating Crew Member. Indeed,

20 while payroll has always provided information on how the forms were to be completed, including

21 expected use of a voluntary written consent form, the payroll department did not explicitly instruct

22 store management to require signature on the consent form in order for a departing Crew Member

23 to take his or her paycard prior to February 2020. While recognizing this “best practice,” Trader

24 Joe’s ultimate objective has always been to ensure its departing Crew Members are paid

25 appropriately and timely. Testimony is thus still necessary to establish the contents of individual

26 communications that took place, as simply relying on the form communication sent to a store does

27
2
28 Plaintiff’s assertions that Trader Joe’s has somehow violated Labor Code 432 by not maintaining
documentation that it was never required to have in the first place is therefore entirely misplaced.
LITTLER MEND ELSO N P.C.
Attorneys at Law

9
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 not provide a complete picture of what was, or was not, communicated to the Crew Member.

2 Moreover, Plaintiff’s case citations are inapposite as both cases cited – Solis v. Regis Corp.

3 and Lopez v. G.A.T. Airlines Ground Support, Inc. – involved circumstances where there was an

4 undisputed underlying Labor Code violation. In Solis v. Regis Corp., for example, the defendant

5 employer’s checks did not have the name and address of a local where checks could be cashed on

6 demand and without discount. Thus, unlike here, the defendant employer indisputably violated the

7 requirements of Labor Code § 212. Solis v. Regis Corp., 612 F. Supp. 2d 1085 (2007). The same

8 was true in G.A.T. Airlines Ground Support, Inc., where the defendant employer used out-of-state

9 checks and did not include the name and address of a local bank where checks could be cashed on

10 demand and without discount. G.A.T. Airlines Ground Support, Inc., 2010 U.S. Dist. LEXIS 73029,

11 *23-24 (July 19, 2010, S.D. Cal.). In both cases, there was a common unlawful practice and the

12 question of liability was not individualized in nature. Neither case is thus applicable here, where

13 there is no common unlawful practice the and the fact of liability, if any, is entirely individualized

14 in nature.

15 3. Plaintiff’s Assertion That She Can Rely Upon Sampling At Trial Is
Misplaced And Ignores Trader Joe’s Due Process Rights.
16
Conspicuously absent from Plaintiff’s Opposition is any meaningful discussion of how a
17
representative trial may proceed that is consistent with Trader Joe’s due process rights. Plaintiff
18
makes no attempt to dispute – and therefore concedes – that Trader Joe’s due process rights dictate
19
that the Company have the right to cross examine every person for whom penalties are sought and
20
to present evidence to challenge individual claims. Indeed, Plaintiff fails to address Trader Joe’s
21
citations to Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541, 2560-61 (2011) and Duran v. U.S.
22
Bank Nat’l Assoc., 59 Cal. 4th 1 (2014), both of which disapprove of using representative testimony
23
to generalize on behalf of a class and found that the defendant employer had a due process right to
24
individualized determinations of each employee’s eligibility for liability.
25
Instead, Plaintiff asserts in in one small paragraph that sampling can be used to determine
26
which Crew Members incurred fees. Yet, Duran held that “statistical methods cannot entirely
27
substitute for common proof, however. There must be some glue that binds class members together
28
LITTLER MEND ELSO N P.C.
Attorneys at Law

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2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 apart from statistical evidence.” Duran, 59 Cal. 4th at 30-31. There is no such “glue” here. Duran

2 goes on to provide a critical distinction relevant to the instant case by noting that sampling might

3 be permissible at trial where the trial involved only damages and not liability. Duran, 59 Cal. 4th

4 at 16, 30 (holding “a defense in which liability itself is predicated on factual questions specific to

5 individual claimants poses a much greater challenge to manageability. This distinction is

6 important.”) Here, however, there is a question of liability. Indeed, Plaintiff’s assertion completely

7 sidesteps the issue of consent, and how consent can possibly be determined on anything other than

8 an individualized basis.

9 Notably, the Supreme Court in Duran further held that a “trial management plan must

10 permit the litigation of relevant affirmative defenses, even when these defenses turn on individual

11 questions.” Id. at 25. “If statistical methods are ultimately incompatible with the nature of the

12 plaintiffs’ claims or the defendants’ defenses, resort to statistical proof may not be appropriate.

13 Procedural innovation must conform to the substantive rights of the parties.” Id. at 40 (emphasis

14 added). Here, setting aside the issue of consent, the suggestion of sampling also does not address

15 “why” fees were incurred – which the Court already noted in its ruling on Class Certification could

16 be for varying reasons entirely unrelated to any alleged Labor Code violation:

17 Further, an evaluation of the policy itself confirms that the incurring of fees is not
18 an inevitable or necessary result of use of the card, such that there could be any
likelihood of establishing the fact of damage through common proof.
19
(Court Order Denying Class Certification, p. 19). Plaintiff’s assertion that the question of why
20
allegedly aggrieved Crew Members incurred fees is somehow irrelevant is therefore misplaced. 3
21
Even assuming, as Plaintiff argues, that PAGA penalties can be awarded even where no
22
3
23 Indeed, in its ruling on class certification, the Court highlighted that, “With or without consent,
usage of the paycard in certain manners would incur fees and use of the paycard in other manners
24 would avoid fees. Plaintiff does not contend that she was not advised of the fact that she might
incur fees if she utilized the card in a particular manner, nor does she contend that she was not
25 advised that she could avoid fees by utilizing the paycard in a particular manner. At her deposition,
she authenticated and acknowledged receipt of the paycard instructions which set forth the
26 information. She may have ignored the information, and/or failed to follow the instructions in the
information, but she did receive it, and testified that she understood that there were ways to use the
27 card which would not result in the imposition of fees. Even so, she repeatedly used the card in a
manner that incurred fees.” (Court Order Denying Class Certification, p. 18). These factually
28 specific circumstances must be explored with respect to each and every allegedly aggrieved former
Crew Member.
LITTLER MEND ELSO N P.C.
Attorneys at Law

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2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
1 actual fees have been incurred by allegedly aggrieved crew members, the question of “why” fees

2 may have been incurred is critical to any award of penalties in this case and multiple of Trader Joe’s

3 affirmative defenses in this matter. (See e.g., Defendant Trader Joe’s Company’s Answer to

4 Plaintiff Victoria Tice’s Unverified Class And Representative Action Complaint For Damages

5 (affirmative defenses #30, 31, 34)). As a matter of due process, Trader Joe’s must be able to present

6 individualized evidence at trial on the question of “why” any fees were incurred which, as set forth

7 above, would require the testimony of hundreds of witnesses and is entirely unmanageable.

8 III. CONCLUSION
As fully set forth above and in Trader Joe’s underlying Motion, Plaintiff has failed to
9
demonstrate that there is any manner in which her PAGA claim can manageably proceed on a
10
representative basis while still affording Trader Joe’s its due process rights. Accordingly,
11
Defendant respectfully requests that the Court strike Plaintiff’s representative PAGA claim in its
12
entirety.
13

16 Dated: December 7, 2021
LITTLER MENDELSON P.C.
17

19 Helene Wasserman
Shannon R. Boyce
20 Melissa Velez

21 Attorneys for Defendant
TRADER JOE’S COMPANY
22

28
LITTLER MEND ELSO N P.C.
Attorneys at Law

12
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM
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 2049
4
Century Park East, Suite 500, Los Angeles, CA 90067. On December 7, 2021, I served true
5
copies of the following document(s) described as
6
DEFENDANT TRADER JOE’S COMPANY’S REPLY IN SUPPORT OF MOTION TO
7 STRIKE PLAINTIFF VICTORIA TICE’S REPRESENTATIVE PAGA CLAIM

8 on 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
18  the parties to accept electronic service, including pursuant to Code of Civil
Procedure section 1010.6, which allows for service by e-mail or electronic
19 transmission, I caused the documents to be sent to the persons at the electronic
service addresses listed herein. My email address is mgerard@littler.com.
20

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I declare under penalty of perjury under the laws of the State of California that the
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foregoing is true and correct. Executed on December 7, 2021, at Los Angeles, California.
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Mary Ann Gerard
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4871-5113-9845.1 / 071820-1075
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LITTLER MEND ELSO N P.C.
2049 C entury Park East

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5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S REPLY ISO MOTION TO STRIKE PLAINTIFF’S REPRESENTATIVE PAGA CLAIM

Case Info

Judge

Anderle, Thomas P Track Judge’s New Case

Case No.

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Document Filed Date

December 07, 2021

Case Filing Date

February 14, 2020

County

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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Case Info

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