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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ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
1 Larry W. Lee (State Bar No. 228175) Darrel E. Parker, Executive Officer
Max W. Gavron (State Bar No. 291697) 12/1/2021 1:05 PM
2 DIVERSITY LAW GROUP, P.C. By: Narzralli Baksh, Deputy
3 515 S. Figueroa Street, Suite 1250
Los Angeles, CA 90071
4 (213) 488-6555
(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
17 OPPOSITION TO DEFENDANT TRADER
18 JOE’S COMPANY’S MOTION TO STRIKE
TRADER JOE’S COMPANY, a California
19 corporation; and DOES 1 through 50, Date: December 14, 2021
inclusive, Time: 10:00 a.m.
20 Dept.: SB Dept. 3
21 Defendants.

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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 TABLE OF CONTENTS
2 Page
3
4 I. INTRODUCTION................................................................................................................ 5
5 II. CALIFORNIA LAW PROHIBITS EMPLOYERS FROM DISBURSING WAGES
6 VIA PAYCARD WITHOUT EXPRESS EMPLOYEE CONSENT ............................... 7
7 III. FACTS AND PROCEDURAL STATUS ......................................................................... 11
8 A. Relevant Procedural History ..................................................................................... 11
9 B. Defendant’s Payroll Practices ................................................................................... 11
10 1. Defendant’s Paycard Policies and Practices ..................................................... 12
11 2. Defendant’s Terminating Pay Policies and Practices ...................................... 13
12 C. Defendant’s Policy Change After Filing of Lawsuit................................................ 14
13 D. Exemplar Communications from Defendant to Aggrieved Employees ................ 14
14 E. Plaintiff Will Demonstrate Which Employees Incurred Fees ................................ 14
15 F. Plaintiff’s Employment with Defendant ................................................................... 15
16 G. The Aggrieved Employees ......................................................................................... 15
17 IV. A PAGA CLAIM DOES NOT REQUIRE CLASS CERTIFICATION & DOES NOT
18 INDEPENDENTLY IMPOSE A MANAGEABILITY REQUIREMENT .................. 16
19 V. WESSON IS EASILY DISTINGUISHED ....................................................................... 19
20 A. Whether Allegedly Aggrieved Employees Consented to Receive Final Pay on
21 Paycard ........................................................................................................................ 21
22 B. Whether Allegedly Aggrieved Employees Incurred Any Fees As a Result of
23 Receiving Their Final Pay on a Paycard .................................................................. 23
24 VI. ALTERNATIVELY, PLAINTIFF REQUESTS THAT THE COURT CONTINUE
25 THE HEARING ON DEFENDANT’S MOTION TO STRIKE TO ALLOW THE
26 COURT TO FIRST RESOLVE THE PARTIES’ DISCOVERY DISPUTE ............... 24
27 VII. CONCLUSION .................................................................................................................. 24
28
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 TABLE OF AUTHORITIES
2 Page(s)
3 Other Authorities
4 12 C.F.R. § 1005 ............................................................................................................................. 8
5 DLSE Opinion Letters 2008.07.07 and 2008.07.07-2 .................................................................... 8
6 Electronic Fund Transfer Act (the “EFTA”) .................................................................................. 8
7 Federal Cases
8 Amey v. Cinemark USA Inc., 2015 WL 2251504 (N.D. Cal. May 13, 2015) ............................... 19
9 Amiri v. Cox Comnc’ns California, LLC, 272 F. Supp. 3d 1187, 1190-1191 (C.D. Cal. 2017.).. 18
10
Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1123 (9th Cir. 2014) .......................... 16, 17
11
Bowers v. First Student, Inc., 2015 WL 1862914 (C.D. Cal. Apr. 23, 2015) ......................... 17, 18
12
Brown v. Am. Airlines, Inc., 2015 WL 6735217 (C.D. Cal. Oct. 5, 2015) ................................... 18
13
Brown v. Cinemark USA, Inc., 705 Fed.Appx. 644 (9th Cir. 2017) ............................................. 19
14
Delgado v. Marketsource, Inc., 2019 WL 1904216, at *4 (N.D. Cal. Apr. 29, 2019) ........... 17, 18
15
Hernandez v. Comcast Corp., 2015 U.S. Dist. LEXIS 190442, at *10 (N.D. Cal. Jan. 16, 2015)17
16
Johnson v. Sunrise Senior Living Management, Inc. No. CV1600443BRORAOX, 2016 WL
17
8929249, at *8–9 (C.D. Cal. May 5, 2016) ................................................................................. 9
18
Litty v. Merrill Lynch & Co. 2014 WL 5904904 (C.D. Cal. Nov. 10, 2014) ............................... 18
19
Lopez v. G.A.T. Airline Ground Support, Inc., No. 09-CV-2268-IEG, 2010 WL 2839417, at *7
20
(S.D. Cal. July 19, 2010) ................................................................................................. 7, 23, 24
21
22 Ortiz v. CVS Caremark Corp., 2014 U.S. Dist. LEXIS 36833, at *4 ........................................... 18

23 Raphael v. Tesoro Ref. & Mktg. Co. LLC, 2015 WL 5680310 (C.D. Cal. Sept. 25, 2015) .......... 17

24 Sakkab v. Luxottica Retail N. Am., Inc., 803 F.3d 425, 436 (9th Cir. 2015) ................................ 17

25 Solis v. Regis Corp., 612 F.Supp.2d 1085 (N.D.Cal.2007) .............................................. 22, 23, 24

26 Tseng v. Nordstrom, Inc., No. CV11-8471-CAS(MRWX), 2016 WL 7403288, at *6 (C.D. Cal.

27 Dec. 19, 2016) ............................................................................................................................ 17
28 Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. 442, 455 (2016) ...................................................... 24
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1 Zayers v. Kiewit Infrastructure W. Co., 2017 U.S. Dist. LEXIS 216715, at *28 (C.D. Cal. Nov. 9,
2 2017) .......................................................................................................................................... 17
3 State Cases
4 Arias v. Superior Court, 46 Cal. 4th 969, 976 (2009) ........................................................ 5, 16, 23
5 Bell v. Farmers Ins. Exch., 115 Cal. App. 4th 715, 751 (2004), as modified on denial of reh’g
6 (Mar. 9, 2004) ............................................................................................................................ 24
7 Martinez v. Joe's Crab Shack Holdings, 231 Cal. App. 4th at 380 (2014) ................................... 24
8
Wesson v. Staples the Off. Superstore, LLC, 68 Cal. App. 5th 746, 283 Cal. Rptr. 3d 846, 856
9
(2021), reh'g denied (Sept. 27, 2021), review filed (Oct. 19, 2021) ......................... 5, 19, 20, 24
10
Statutes
11
Labor Code § 201-203 ...................................................................................................... 7, 8, 9, 10
12
Labor Code § 201.................................................................................................................... 10, 16
13
Labor Code § 202.................................................................................................................... 10, 16
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Labor Code § 203.......................................................................................................................... 16
15
Labor Code § 204.......................................................................................................................... 16
16
Labor Code § 212................................................................................................................... passim
17
Labor Code § 212(a) ....................................................................................................................... 7
18
Labor Code § 213................................................................................................................... passim
19
20 Labor Code § 213(d) ............................................................................................................. 7, 8, 16

21 Labor Code § 226...................................................................................................................... 6, 21

22 Labor Code § 432...................................................................................................................... 6, 21

23 Labor Code § 1174........................................................................................................................ 21

24 Labor Code § 1198.5..................................................................................................................... 21

25 Labor Code § 2699.5..................................................................................................................... 16
26 Labor Code Private Attorneys General Act of 2004..................................................................... 16
27
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 I. INTRODUCTION
2 Plaintiff Victoria Tice (“Plaintiff”) brings a claim under the Private Attorneys General
3 Act (“PAGA”) alleging that Defendant Trader Joe’s Company (“Defendant”) failed to pay all
4 final wages due and owing to employees for whom Defendant did not obtain authorization to pay
5 their final wages in the form of a paycard, aka ATM Card or COMDATA card. Defendant
6 issued final wages to employees on an ATM-like card that was subject to a host of fees, as
7 opposed to via direct deposit or check. Plaintiff did not consent to receive her final wages via
8 paycard, but was provided one upon her termination. In using the paycard at various locations,
9 including Trader Joe’s itself, she incurred fees that deprived her of all wages due and owed to her
10 at her termination.
11 Defendant moves to strike Plaintiff’s PAGA claim arguing that, after the Court denied
12 class certification, it should also find that Plaintiff’s PAGA claim is unmanageable. Plaintiff
13 opposes Defendant’s Motion on several grounds, including first that the California Supreme
14 Court expressly held that PAGA claims are not subject to class certification requirements and
15 thus the Court’s determination on Plaintiff’s Motion for Class Certification should not control
16 here. Arias v. Superior Court, 46 Cal. 4th 969, 976 (2009). Defendant’s reliance on the Court of
17 Appeal’s decision in Wesson v. Staples the Off. Superstore, LLC, 68 Cal. App. 5th 746, 283 Cal.
18 Rptr. 3d 846, 856 (2021), reh'g denied (Sept. 27, 2021), review filed (Oct. 19, 2021) is also
19 unavailing. In Wesson, the plaintiff agreed that proving his case could take up to eight years and
20 would require the defendant to provide “individualized assessments of 346 [general managers]”
21 and a week-by-week analysis. Plaintiff’s claims are thus not like those addressed in Wesson.
22 Factually, Defendant argues that two questions are not manageable in the context of
23 Plaintiff’s representative PAGA claim. First, whether the aggrieved employees consented to
24 have their final wages distributed on a paycard, and second, whether those individuals incurred
25 fees for using the paycards.
26 Regarding consent, Defendant has stipulated that the sampling of communications it
27 produced in discovery “are representative of the typical communications Defendant provided to
28 store locations regarding the distribution of final wages on payroll cards between February 10,
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 2019, through the present.” The Exemplar Communications produced for the period before
2 Defendant’s policy change in February 2020 explain that the “Consent Form [was] attached to be
3 signed by crew member and scanned to payroll.” After February 2020, the Exemplar
4 Communications explain that “Cards cannot be issued without the crew member’s written
5 consent. To take the card, the crew member must sign the form.”
6 Defendant’s inability to produce consent forms for employees who received their final
7 wages on a paycard demonstrates that those employees did not consent, and thus Defendant
8 violated the California Labor Code when it paid them via paycard. Defendant contends
9 employees may have consented to receive their wages on a paycard, but that Defendant is unable
10 to reproduce the consent form because they could be lost, taken by the employee, etc. The
11 California Labor Code, however, requires employers to maintain employee personnel files and
12 other employment records. See Labor Code §§ 226, 432 (requiring employers to provide copies
13 of any instrument employees sign), 1198.5. Accordingly, Defendant cannot simply claim it
14 obtained consent from the aggrieved employees without a written authorization because it was
15 required by law to maintain those records.
16 Next, Defendant argues that Plaintiff will not be able to demonstrate that employees
17 incurred fees associated with using their paycards without delving into individualized issues.
18 Plaintiff sent interrogatories requesting the account and routing numbers of the COMDATA
19 cards issued to aggrieved employees through written discovery. Defendant refused to produce
20 that information, and, on November 30, 2021, Plaintiff requested that the Court hold and
21 informal discovery conference to address the issue, but has not yet received a ruling. As noted
22 below, Plaintiff requests, in the alternative, that the Court continue the hearing on Defendant’s
23 Motion to Strike so that the Parties may first resolve this discovery dispute.
24 With the routing and account numbers of the cards issued to aggrieved employees,
25 Plaintiff will subpoena the card provider, as Plaintiff’s counsel has done in other actions, and
26 obtain a ledger demonstrating which card numbers/aggrieved employees incurred fees using their
27 cards. Plaintiff proffers such a ledger in opposition to this Motion, which demonstrates the
28 information is verifiable. With this information, Plaintiff will demonstrate through documentary
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 evidence exactly which aggrieved employees incurred fees as a result of Defendant’s unlawful
2 practices. Defendant’s refusal to produce information through the discovery process should not
3 assist it in prevailing on its Motion.
4 Alternatively, if the Court does not require Defendant to produce the identifying
5 information, Plaintiff will present evidence at the time of trial regarding the employees who
6 incurred fees by way of sampling and statistical analysis. Defendant identified approximately
7 348 aggrieved employees. Plaintiff will engage an expert to perform an analysis to determine a
8 statistically significant sample of employees, and Plaintiff will depose those employees to prove
9 the number of individuals who incurred fees because of Defendant’s practices.
10 While disputed, even if Plaintiff were unable to demonstrate aggrieved employees
11 incurred fees as a result of Defendant’s practices, Plaintiff may still pursue her PAGA claim.
12 Lopez v. G.A.T. Airline Ground Support, Inc., No. 09-CV-2268-IEG, 2010 WL 2839417, at *7
13 (S.D. Cal. July 19, 2010) (granting summary judgment in favor of the plaintiff on Section 212
14 claim and noting, “Finally, Defendants' arguments as to whether all the named Plaintiffs
15 experienced holds or fees goes to the penalty to be imposed, not to liability.”).
16 Plaintiff requests that the Court deny Defendant’s Motion, or continue it so that the
17 Parties may first resolve the outstanding discovery dispute related to Plaintiff’s request for the
18 routing and account numbers of the COMDATA cards issued to the aggrieved employees.
19 II. CALIFORNIA LAW PROHIBITS EMPLOYERS FROM DISBURSING WAGES
VIA PAYCARD WITHOUT EXPRESS EMPLOYEE CONSENT
20
Unless the employee gives specific authorization to do so, Labor Code §§ 212 & 213
21
provide that wages (including terminating wages) must be paid in a manner that is “negotiable
22
and payable in cash, on demand, without discount.” Cal. Lab. Code §§ 212(a) & 213(d)
23
(emphasis added). Indeed, as the latter part of Labor Code § 213(d) explains, such payment
24
methods must still comply with Labor Code §§ 201-203 (“If an employer discharges an
25
employee or the employee quits the employer may pay the wages earned and unpaid at the time
26
the employee is discharged or quits by making a deposit authorized pursuant to this subdivision,
27
provided that the employer complies with the provisions of this article relating to the payment of
28
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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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, in part:
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.
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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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 (c) Notwithstanding paragraph (1) of subdivision (a), if the drawee
6 is a bank, the bank's address need not appear on the instrument
and, in that case, the instrument shall be negotiable and
7 payable in cash, on demand, without discount, at any place of
business of the drawee chosen by the person entitled to enforce
8 the instrument.
9 Labor Code § 213, further states in pertinent part:

10 Nothing contained in Section 212 shall:

11 (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
12 bank, savings and loan association, or credit union of the
13 employee's choice with a place of business located in this state,
provided that the employee has voluntarily authorized that
14 deposit. If an employer discharges an employee or the
employee quits the employer may pay the wages earned and
15 unpaid at the time the employee is discharged or quits by
16 making a deposit authorized pursuant to this subdivision,
provided that the employer complies with the provisions of this
17 article relating to the payment of wages upon termination or
quitting of employment.
18
19 (Emphasis added.)
20 Courts addressing these requirements determine that consent is necessary for a paycard
21 program to comply with California law. For example, in Johnson v. Sunrise Senior Living
22 Management, Inc., the Central District of California analyzed a claim that the defendant’s “ATM
23 Card Pay Kit” violated California law because it came with associated fees and limits on
24 employees’ ability to withdraw their wages. No. CV1600443BRORAOX, 2016 WL 8929249, at
25 *8–9 (C.D. Cal. May 5, 2016). After analyzing the DLSE Opinion letters addressed above and
26 the language of the statute, the Court denied the defendant’s motion to dismiss the plaintiff’s
27 claim under Labor Code §§ 201–203, 212, and 213. Id. at *8–*11. The Court explained “that the
28 voluntariness requirement is vital to the legality of pay programs similar to the one at issued in
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 this action.” Id. at *11.
2 Here, Defendant’s paycard policy violates these legal requirements. Prior to the filing of
3 this lawsuit, in February 2020, Defendant’s company-wide policy and practice during the
4 proposed PAGA period was to automatically issue terminating wages to departing employees via
5 paycard. Deposition of Lisa Reese 2 (“Reese Depo.”) at 49:24–50:8 (“In California, we would
6 default it to a payroll card.”). Employees who received their wages during employment via paper
7 check or direct deposit were issued final wages on a paycard because that was the “default.” Id.
8 In other words, employees had no real meaningful choice/option in how to receive their final
9 wages except via Defendant’s paycard.
10 Further, the paycard also imposes various fees on employees, which the DLSE has
11 concluded violate Labor Code §§ 212 and 213 and, to the extent that these fees hinder access to
12 the full wages earned, also violate Labor Code §§ 201-203.
13 With respect to payment of final wages, California law requires that, upon termination of
14 employment, all earned wages must be paid to the employee on the employee’s last date of
15 employment, or if the employee resigns and does not provide at least 72 hours’ notice of his/her
16 intention to quit/resign, the employer shall have up to 72 hours after the last date of employment
17 to pay the employee his/her final wages. Cal. Labor Code §§ 201 and 202. Thus, the maximum
18 amount of time an employer is allowed to pay a departing employee’s final wages is 72
19 hours/3days. Under Labor Code § 203, if an employer willfully fails to comply with the
20 requirements of Labor Code §§ 201 or 202, the wages of the employee continue as a penalty
21 until paid (for up to 30 days). Sections 201 through 203 were enacted in 1937. Thus, this has
22 been the law for nearly 100 years.
23 The basis of Plaintiff’s claim for violation of the waiting time penalty statutes is the fees
24 associated with using the paycard issued by Defendant to its California employees by “default.”
25
26
2
27 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.
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PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 When an employee receives their final wages on a paycard and is subjected to fees, they have not
2 received all their final wages because some of those wages have been used to pay the fees
3 associated with the paycard simply so the employee can access his/her wages. Whereas here, the
4 aggrieved employees did not authorize payment on a paycard, the willfulness and harm caused
5 by Defendant’s conduct is apparent.
6 III. FACTS AND PROCEDURAL STATUS
7 A. Relevant Procedural History
8 On February 14, 2020, Plaintiff filed her lawsuit in Santa Barbara County Superior Court.
9 On June 22, 2021, Plaintiff moved for class certification. On September 21, 2021, the Court
10 denied Plaintiff’s Motion for Class Certification. Now, Defendant moves to strike Plaintiff’s
11 claim under the PAGA because it contends it is unmanageable.
12 B. Defendant’s Payroll Practices
13 Defendant is a well-known and popular grocery store chain. During their employment,
14 Defendant’s employees are allowed to choose how their wages are disbursed during regular
15 payroll periods. Reese Depo. 31:8-21, 40:9-23. Employees may elect to be paid via direct
16 deposit, paycard, or paper check. Reese Depo. 31:8-25, 40:9-23, 47:36-48:7. The selection may
17 be entered during the on-boarding process or at any other time via Defendant’s online portal,
18 which reflects the authorization to be paid via a particular format. Reese Depo. 31:8-37:3.
19 Defendant explains to its employees that authorization for payment via direct deposit during
20 employment must be provided to Human Resources. Reese Depo. 42:9–14, Ex. 2 (TJ_000027).
21 As explained by Defendant, the default method of payment for regular payroll processes
22 is through a paper check. Reese Depo. 39:25-40:23. If an employee requests payment via direct
23 deposit or elects to receive wages loaded onto a paycard, he or she must specifically authorize
24 that method through Defendant’s online self-service portal. Reese Depo. 32:7-33:4, 33:8-25,
25 41:12-43:4, 43:22-44:10, 36:4-37:3, Ex. 2. Thus, unless specifically authorized by the employee,
26 payment of the normal payroll wages are not disbursed via the paycard, with the exception of an
27 employee’s final wages, which pursuant to Defendant’s policies and practices, are paid via
28 paycard by default even when the employee has not expressly authorized the payment of wages
11

PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 via paycard.
2 1. Defendant’s Paycard Policies and Practices
3 For wage payment purposes, Defendant uses payroll cards or paycards provided by its
4 vendor Comdata. Reese Depo. 101:7-13. The Comdata Payroll MasterCard resembles an ATM
5 card in appearance and may be used at ATMs or at point-of-sale terminals. Reese Depo. Ex. 6.
6 Employees who use the paycards in certain fashions are subject to a host of fees. See id.;
7 Declaration of Victoria Tice (“Tice Decl.”) ¶ 5, Ex. B.
8 The Comdata payroll cards are delivered to Defendant’s payroll processing department
9 and individual stores as blank cards. Reese Depo. 101:7-13. Funds are then electronically
10 transmitted from Defendant’s payroll account into individual Comdata accounts associated with
11 specific paycards. Reese Depo. 73:17-74:9, 101:7-13. The funds are available for use by the
12 employee once the transaction is complete. Reese Depo. 73:17-74:9. Wages issued via these
13 Comdata paycards can only be accessed after the paycard is activated. Reese Depo. 74:3-9. To
14 manage these funds like a typical banking card, employees must log onto the Internet, register
15 and activate their paycard on Comdata’s website, and set up an account profile or call a toll-free
16 number. See Reese Depo. Ex. 6.
17 Instructions accompanying the paycard state that employees may access their wages
18 through the paycard itself, such as inserting the card into an ATM machine and withdrawing cash
19 or using the paycard to make actual purchases, similar to an ATM or credit card. Reese Depo.
20 Ex. 6. Alternatively, the employee may cash out the funds at a participating bank location after
21 following a highly specific set of instructions, which may result in a $5.00 cardholder fee if not
22 followed correctly. Id.
23 Regardless of which method is used obtain/access the money on the Comdata paycard,
24 there are various fees associated with its use. These fees include: $3.50 for out-of-network ATM
25 withdrawals, $0.50 for cashback with purchase at point of sale using a PIN, $0.50 for point of
26 sale transactions using a PIN, $3.50 for ATM balance inquiry, and $2.95 per month inactivity
27 fee, charged after 180 days of inactivity. Reese Depo. at 95:8–16, Exs. 5–6; Tice Decl. ¶ 5, Ex.
28 B (TICE__000878-879). Employees who receive a Comdata paycard are given forms that inform
12

PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
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1 them they may incur fees, but the aggrieved employees did not consent to receive their wages on
2 a paycard. Reese depo. 98:22-100:4, Ex. 6.
3 2. Defendant’s Terminating Pay Policies and Practices
4 As a matter of policy, for an employee that resigns or is fired, the employee’s final pay
5 upon separation is processed through a termination pay request. Reese depo. 60:22-62:14. The
6 termination pay request is submitted from a store to Defendant’s payroll department, informing
7 them of the employee’s name, date of separation, and other pertinent information. Id. This
8 communication does not indicate whether an employee consented to receive their wages on a
9 paycard. Id. Once the payroll department receives the termination pay request, the employee’s
10 final wages are calculated and then loaded onto a Comdata paycard. Reese depo. 73:10-74:9.
11 Payment of final wages via the Comdata paycard is the default method even where an employee
12 has not specifically authorized payment that way. Reese depo. 49:19-50:8, 51:10-18, 53:3-5.
13 Defendant, however, knows that written authorization is required, as evidenced by the fact that it
14 requires written authorization for direct deposit during normal employment, Reese Depo. 42:9–
15 14, Ex. 2 (TJ_000027), and because it maintains consent forms for some employees. Reese
16 Depo. 54:19–55:6. Despite its knowledge of the requirement, it issues paycards to employees
17 even where they do not consent. Reese depo. 49:19-50:8, 51:10-18, 53:3-5.
18 If an employee authorized payment on a paycard, Defendant expects that they have
19 signed a written consent form. Reese depo. 89:9–13. While Defendant has produced consent
20 forms for some employees, it is undisputed that Trader Joe’s does not have the consent forms for
21 the at least 348 employees that received final wages on a paycard during the PAGA period.
22 Gavron Decl. ¶ 2, Ex. A (Defendant’s Response to Plaintiff’s Special Interrogatories Third Set).
23 While Defendant claims that a separating employee may reject the Comdata paycard, doing so
24 results in a delay of payment as the employee must wait to receive a paper check for his or her
25 final wages in the mail (which would itself be a violation of Labor Code §§ 201-203). Reese
26 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
27 for Defendant to issue an employee a paper check for his/her final wages on the last day of work.
28 Reese depo. 120:15-121:3.
13

PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
STRIKE
1 C. Defendant’s Policy Change After Filing of Lawsuit
2 In February 2020 after Plaintiff filed this lawsuit, Defendant revised its consent form to
3 explicitly include language informing its employees of the option to reject the Comdata paycard.
4 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.
5 Defendant explained that “it’s part of the process now…to request consent prior to giving
6 [employees] the card.” Reese depo. 124:13–125:1 (emphasis added).
7 D. Exemplar Communications from Defendant to Aggrieved Employees
8 Defendant concedes that its communications to employees to obtain consent for the
9 authorization of payment of final wages on a paycard were similar during the PAGA period.
10 On November 24, 2021, the Court granted the Parties’ stipulation and entered an order
11 confirming the Parties’ agreement that the documents produced by Defendant, which were bate
12 stamped TJ_000260-307 (pre-February 2020 communications), and TJ_000308-319 (post-
13 February 2020 communications), could be used to demonstrate the “typical communications
14 Defendant provided to store locations regarding the distribution of final wages on payroll cards
15 between February 10, 2019, through the present.” Gavron Decl. ¶ 4; Ex. C (Stipulation re
16 Defendant’s Responses to RFP No. 23 & Signed Order). Thus, Plaintiff will present no
17 individualized questions regarding the communications from Defendant to aggrieved employees
18 regarding what Plaintiff contends are unlawful practices.
19 E. Plaintiff Will Demonstrate Which Employees Incurred Fees
20 In written discovery, Plaintiff requested that Defendant identify the routing and account
21 numbers for the COMDATA card issued to each employee within the period encompassed by
22 Plaintiff’s PAGA claim. Gavron Decl. ¶¶ 2, 5; Ex. A (Def’s Corrected Resp. to SROG, Set
23 Three, No 10). Defendant refused to produce the requested information. Gavron Decl. ¶ 5.
24 After meeting and conferring without success, on November 30, 2021, Plaintiff’s counsel
25 requested an informal discovery conference (“IDC”), pursuant to Code of Civil Procedure
26 § 2016.080, to address Defendant’s refusal to produce the routing and account numbers for the
27
28
14

PLAINTIFF VICTORIA TICE’S OPPOSITION TO DEFENDANT TRADER JOE’S COMPANY’S MOTION TO
STRIKE
1 COMDATA cards. 3 Gavron Decl. ¶ 5.
2 Once Plaintiff obtains the identifying information of the cards distributed to each
3 aggrieved employee, Plaintiff will subpoena COMDATA and obtain a report, like the one
4 submitted by Plaintiff in support of her Motion for Class Certification, see Tice Decl. ¶ 5, Ex. B,
5 which will permit Plaintiff to identify those employees who incurred fees for using their
6 paycards. Plaintiff’s counsel has utilized this process before in other actions. Gavron Decl. ¶ 5.
7 F. Plaintiff’s Employment with Defendant
8 Plaintiff worked as a retail store worker or “Mate” for Defendant from about 2011 to
9 January 27, 2020. Declaration of Victoria Tice (“Tice Decl.”) ¶ 2. Plaintiff worked at
10 Defendant’s grocery stores located in Santa Barbara and Goleta. Id. During her employment,
11 Plaintiff had regular pay days and typically received her wages via direct deposit, which is the
12 manner in which she authorized her wages to be paid. Id. ¶ 3. Plaintiff has never authorized or
13 consented to receive her wages on a paycard. Id. ¶¶ 3, 5.
14 Upon her termination, Plaintiff received a package in the mail that included a termination
15 notice, paystubs, and a debit or credit card-type paycard called Comdata Payroll MasterCard.
16 Tice Decl. ¶ 4. Instructions regarding how to use the paycard were also included. Id. Plaintiff’s
17 final wages were pre-loaded on the Comdata paycard. Id. Again, Plaintiff did not authorize or
18 consent to receive her final wages on a paycard. Id. ¶ 5. Plaintiff incurred fees at different
19 locations (including Trader Joe’s itself) when using the card. Id., Ex. B. Thus, Plaintiff did not
20 receive all her final/earned wages because she incurred fees in order to access her final wages,
21 which thus deprived her of all her wages.
22 G. The Aggrieved Employees
23 Through discovery, Plaintiff obtained the contact information of those individuals who
24 qualify as aggrieved employees. Gavron Decl. ¶ 2 Ex. A (Defendant’s Responses to Plaintiff’s
25
26
3
27 At the time

Case Info

Judge

Anderle, Thomas P Track Judge’s New Case

Case No.

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Document Filed Date

December 01, 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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