No Value: Victoria Tice, etc., v. Trader Joe’s Company

On February 14, 2020 a No Value 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.

Preview
1 Helene Wasserman, Bar No. 130134
hwasserman@littler.com
2 Shannon R. Boyce, Bar No. 229041
sboyce@littler.com
3 Melissa Velez, Bar No. 316714
mvelez@littler.com
4 LITTLER MENDELSON P.C.
2049 Century Park East
5 5th Floor
Los Angeles, California 90067.3107
6 Telephone: 310.553.0308
Fax No.: 310.553.5583
7
Attorneys for Defendant
8 TRADER JOE’S COMPANY

9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
FOR THE COUNTY OF SANTA BARBARA
11

12
VICTORIA TICE, as an individual and on Case No. 20CV00892
13 behalf of all others similarly situated,
DEFENDANT TRADER JOE’S
14 Plaintiff, COMPANY’S MEMORANDUM OF
POINTS AND AUTHORITIES IN
15 v. OPPOSITION TO PLAINTIFF
VICTORIA TICE’S MOTION TO
16 TRADER JOE’S COMPANY, a California COMPEL FURTHER RESPONSES
corporation; and DOES 1 through 50, inclusive,
17 ASSIGNED FOR ALL PURPOSES TO
Defendant. JUDGE THOMAS P. ANDERLE, DEPT. 3
18
Date: February 8, 2022
19 Time: 10:00 a.m.
Dept: 3
20
Trial Date: February 14, 2023
21 Complaint Filed: February 14, 2020

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

DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 TABLE OF CONTENTS

2 PAGE

3 I. INTRODUCTION ................................................................................................................... 4
4 II. PROCEDURAL HISTORY AND DISCOVERY REQUESTS AT ISSUE ........................... 4
5 III. LEGAL ARGUMENT ............................................................................................................. 5
6 A. Trader Joe’s Is Obligated to Protect The Privacy Rights of its Former Crew
Members. ..................................................................................................................... 5
7
B. Despite The Intrusion Into The Private Financial Affairs Of Former Crew
8 Members, The Discovery At Issue Is Irrelevant. ......................................................... 7
9 C. At A Minimum, Plaintiff Should Be Required To Issue A Notice To
Consumer To All Allegedly Aggrieved Former Crew Members To Permit
10 Them An Opportunity To Object To Production Of Their Financial
Information. ................................................................................................................. 8
11
IV. CONCLUSION ........................................................................................................................ 8
12

28
2
LITTLER MEND ELSO N, P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 TABLE OF AUTHORITIES

2 Page

4 Cases

5 Calcor Space Facility, Inc. v. Super. Ct.,
53 Cal. App. 4th 216 (1997) ..................................................................................................5, 6
6
Cty. of Los Angeles v. Los Angeles Cty. Employee Relations Com.,
7
56 Cal. 4th 905 (2013) ...............................................................................................................6
8
Hill v. National Collegiate Athletic Assn.,
9 7 Cal. 4th 1 (1994) .....................................................................................................................6

10 Hoffman Corp. v. Sup.Ct. (Smaystrla),
172 Cal. App. 3d 357 (1985) .....................................................................................................6
11
Lopez v. G.A.T. Airline Ground Support, Inc.,
12 2010 U.S. Dist. LEXIS 73029 (SD. Cal. July 2010) .................................................................7
13
Solis v. Regis Corp.,
14 612 F. Supp. 2d 1085 (2007) .....................................................................................................7

15 Tien v. Sup.Ct. (Tenet Healthcare Corp.),
139 Cal. App. 4th 528 (2006) ....................................................................................................6
16
Valley Bank of Nev. v. Superior Court,
17 15 Cal. 3d 652 (1975) ................................................................................................................6
18
Williams v. Superior Court,
19 3 Cal. 5th 531 (2017) .................................................................................................................6

20 Statutes

21 California Code of Civil Procedure § 1985.3 ..................................................................................8

22 California Code of Civil Procedure §1985.3(b) ...............................................................................8
23 California Code of Civil Procedure § 1985.3(k) ..............................................................................8
24 California Code of Civil Procedure § 2017.020(a) ..........................................................................5
25
California Labor Code §§ 201-203 ..................................................................................................4
26
California Labor Code § 212 .......................................................................................................4, 7
27
California Labor Code § 213 .......................................................................................................4, 7
28
3
LITTLER MEND ELSO N, P.C.
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308
DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 I. INTRODUCTION

2 Plaintiff Victoria Tice brought this case as a class action lawsuit and representative action

3 against Defendant Trader Joe’s Company, asserting violation of California Labor Code sections

4 201-203, 212, and 213. Following extensive briefing and oral argument, the Court denied

5 Plaintiff’s motion for class certification, with prejudice, by order dated September 21, 2021. In

6 denying Plaintiff’s motion, the Court specifically noted that, “to extent that any member of the

7 putative class incurred fees at all, the reasons for doing so could vary widely.” (Court Order

8 Denying Certification, p. 19.) Indeed, “the evidence before the Court shows that there were

9 multiple means of using the card without incurring fees.” (Id. at 20 (emphasis added).) Despite

10 this evidence, Plaintiff now seeks individual account and routing number information for paycards

11 issued to allegedly aggrieved former crew members, thereby invading third party financial privacy

12 rights for records which are irrelevant. Indeed, records of potential fees incurred cannot explain

13 whether the former Crew Member consented to the paycard in the firstplace or why the Crew

14 Member incurred fees when they were not required to do so. 1 Worse yet, Plaintiff seeks to engage

15 in this fishing expedition without any assurance that these former crew members will receive any

16 notice of the Comdata subpoena which seeks their personal financial information, in which there is

17 an indisputable right to privacy. Trader Joe’s thus respectfully requests that the Court deny

18 Plaintiff’s motion to compel.

19 II. PROCEDURAL HISTORY AND DISCOVERY REQUESTS AT ISSUE

20 Following the Court’s denial of Plaintiff’s motion for class certification, Plaintiff

21 propounded interrogatories seeking not just contact information for the allegedly aggrieved

22 employees, but also the account and routing numbers for the Comdata paycard issued to each

23 former crew member within the period encompassed by Plaintiff’s Private Attorney General Act

24
1
25 The individualized issues presented and grave concerns about manageability were raised in
Defendant’s Motion to Strike Plaintiff’s Representative PAGA claim. Trial of the fee issue alleged
26 by Plaintiff would require not just a cross-referencing of the list of allegedly aggrieved employees
with a list of those who incurred fees, as claimed by Plaintiff, but an individual examination of the
27 Comdata ledger of each such allegedly aggrieved former crew member, along with individual
testimony by each such former crew member with respect to each and every instance in which a
28 fee was incurred, with respect to the reasons why the former crew member chose to use the card in
a manner which would result in the imposition of fees.
LITTLER MEND ELSO N P.C.
2049 C entury Park East

4
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 (“PAGA”) claim. Defendant objected to the request on multiple grounds, including (1) it seeks

2 information which is neither relevant to the subject matter of Plaintiff’s Complaint nor reasonably

3 calculated to lead to the discovery of admissible evidence; and (2) disclosure of the information

4 sought would violate the privacy rights of third parties to this litigation under the Constitution of

5 the United States and the State of California and under common law privacy principles.

6 The Parties thereafter participated in an informal discovery conference with the Court, at

7 which Defendant highlighted both of these concerns. Defense counsel further attempted to meet

8 and confer with Plaintiff’s counsel regarding what procedural safeguards, if any, the Parties could

9 explore to protect the privacy rights of Trader Joe’s former crew members. Counsel discussed the

10 possibility of production of the data from Comdata with no crew member names attached, but

11 Plaintiff would only agree to the approach if Trader Joe’s otherwise agreed to waive its due process

12 right to individually examine each witness at trial. 2 (Declaration of Shannon R. Boyce (“Boyce

13 Decl.”), ¶ 3, filed concurrently herewith.) Unwilling to waive its due process rights, Defendant

14 sought clarification as to how Plaintiff intends to subpoena the records from Comdata. (Id. at ¶¶ 4-

15 7, Exhs. A-C.) In particular, Defendant sought clarification as to whether Plaintiff intends to issue

16 a notice to consumer to each former crew member to give them an opportunity to object to subpoena

17 of their financial information. Id. Plaintiff’s counsel noted that that the prior time he went through

18 this exercise, he was in federal court where there is no such notice requirement. (Id.) Counsel thus

19 indicated that he would investigate the issue and get back to Defendant. (Id.) This meet and confer

20 discussion occurred in December. Defense counsel thereafter reached out on four separate

21 occasions to follow up on the issue but did not receive a substantive response. (Id. at ¶¶ 4-7, Exhs.

22 A-C.)

23 III. LEGAL ARGUMENT
24 A. Trader Joe’s Is Obligated to Protect The Privacy Rights of its Former Crew
Members.
25
Although the scope of civil discovery is broad, “it is not limitless.” Calcor Space Facility,
26

27
2
Indeed, while account or routing numbers may have been produced in this matter as part of a
28 sampling of signed consent forms, crew member names were redacted form any such production.
(Boyce Decl., ¶ 8.)
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 OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 Inc. v. Super. Ct., 53 Cal. App. 4th 216, 223 (1997). Where, as here, “the burden, expense, or

2 intrusiveness of that discovery clearly outweighs the likelihood that the information sought will

3 lead to the discovery of admissible evidence,” the Court has, and should exercise, the power to limit

4 such discovery. Cal. Civ. Proc. Code § 2017.020(a). As outlined in Calcor Space Facility, Inc.,

5 “early in the development of our discovery law our Supreme Court recognized the limits on such

6 ‘fishing expeditions’.” Calcor Space Facility, Inc., 53 Cal. App. 4th 216, 224-25 (1997) (citing

7 Greyhound Corp. v. Sup. Ct., 56 Cal. 2d 355, 384-85 (1961), the seminal case in California civil

8 discovery in which the court gave examples of improper “fishing”).

9 The California Supreme Court affirmed in Williams v. Superior Court that employees have

10 a constitutional right to privacy and a party seeking discovery of private information in a PAGA

11 action still needs to establish that it has a legitimate interest in the information that outweighs

12 the legally-protected privacy interests. Williams v. Superior Court, 3 Cal. 5th 531, 552-55 (2017)

13 (“The party seeking information may raise in response whatever legitimate and important

14 countervailing interests disclosure serves….”). In so doing, the Williams court expressly engaged

15 in the balancing test for evaluating potential invasions of privacy established in Hill v. National

16 Collegiate Athletic Assn., 7 Cal. 4th 1 (1994). Under Hill’s framework, the party claiming privacy

17 must: (1) identify a specific, legally protected privacy interest, (2) demonstrate an objectively

18 reasonable expectation of privacy, and (3) show that the threatened intrusion into the privacy

19 interest is serious. Hill, 7 Cal.4th at 35-37.

20 There is no doubt a privacy interest exists here, as even highly relevant, non-privileged

21 information may be shielded from discovery if its disclosure would impair a person’s “inalienable

22 right of privacy” afforded by article 1, section 1 of the California Constitution. See Cty. of Los

23 Angeles v. Los Angeles Cty. Employee Relations Com., 56 Cal. 4th 905, 927 (2013) (“home contact

24 information is generally considered private”). Here, the information at issue is not merely contact

25 information as frequently arises in class and PAGA litigation, but sensitive financial information.

26 Williams, supra, 3 Cal. 5th at 553 (noting discovery seeking contact information not as serious an

27 invasion of privacy as discovery which seeks financial information); Valley Bank of Nev. v.

28 Superior Court, 15 Cal. 3d 652 (1975) (analyzing heightened privacy interests of financial records);
LITTLER MEND ELSO N P.C.
Attorneys at Law

6
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 Hoffman Corp. v. Sup.Ct. (Smaystrla), 172 Cal. App. 3d 357, 362 (1985); Tien v. Sup.Ct. (Tenet

2 Healthcare Corp.), 139 Cal. App. 4th 528 (2006). Indeed, the routing and account numbers sought

3 reveal when and where former crew members banked, made purchases, checked their account

4 balances, and made banking transfers, amongst other financial data points. Any of number of these

5 data points pose data security issues and could, in fact, lead to identity theft.

6 Plaintiff here makes no attempt to address the necessary balancing. To the contrary,

7 Plaintiff merely cites to generalized case law regarding the scope of discovery, with no analysis of

8 the privacy rights at stake. Plaintiff summarily asserts that the account and routing numbers are

9 necessary to subpoena Comdata with no further discussion or analysis. (Plaintiff’s MTC, pg. 6.)

10 However, the law is clear that third party employees do not automatically relinquish their privacy

11 rights simply because a former employee files a PAGA action. Defendant’s former crew members

12 who are not part of this litigation have an objectively reasonable expectation of privacy and Plaintiff

13 makes no showing as to why that reasonable expectation should be disturbed. Accordingly,

14 Plaintiff’s motion should be denied.

15 B. Despite The Intrusion Into The Private Financial Affairs Of Former Crew
Members, The Discovery At Issue Is Irrelevant.
16
Plaintiff makes the blanket assertion that she will subpoena Comdata in some unspecified
17
fashion to demonstrate which allegedly aggrieved former crew members did, or did not, incur fees
18
in the use of their pay cards. Yet, as previously recognized by the Court in its Order denying class
19
certification, there are multiple avenues by which a Crew Member can use the paycard without
20
incurring any fees. (Court Order, pp. 19-20.) Accordingly, whether allegedly aggrieved former
21
Crew Members actually incurred fees is irrelevant.
22
Indeed, Plaintiff’s own arguments in opposing Defendant’s Motion to Strike highlights the
23
irrelevant nature of the interrogatory at issue. Specifically, Plaintiff asserts her PAGA claim
24
premised on Labor Code Section 212 and 213 does not require employees to have incurred fees to
25
find Defendant liable. Solis v. Regis Corp., 612 F. Supp. 2d 1085, 1087 (2007); Lopez v. G.A.T.
26
Airline Ground Support, Inc., 2010 U.S. Dist. LEXIS 73029, *24 (SD. Cal. July 2010)
27
(“Defendants are liable for civil penalties under PAGA for violation of Section 212, for any Section
28
LITTLER MEND ELSO N P.C.
Attorneys at Law

7
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
1 212 violations which do not involve the withholding of wages.). There is thus limited, if any, basis

2 for the interrogatory at issue which falls far short of justifying the extraordinary intrusion into

3 former crew members’ private financial information.

4 C. At A Minimum, Plaintiff Should Be Required To Issue A Notice To Consumer
To All Allegedly Aggrieved Former Crew Members To Permit Them An
5 Opportunity To Object To Production Of Their Financial Information.
6 Special notice and procedures are required for production of the “personal records” of a

7 “consumer” or employee, to protect that person’s right of privacy. Cal. Code. Civ. Proc. § 1985.3.

8 The purpose is to give that person the opportunity to seek a court order to quash or limit the

9 subpoena before the records are disclosed. Under California Code of Civil Procedure section

10 1985.3(b), a consumer must receive a copy of the subpoena which seeks their records, as well as a

11 notice of privacy rights. Failure to comply with these requirements by itself invalidates the service.

12 Cal. Code Civ. Proc. § 1985.3(k). Despite these clear requirements, however, Plaintiff has not

13 committed to service of such, nor any other form of notice to allegedly aggrieved former crew

14 members regarding her attempt to subpoena their personal financial records. (Boyce Decl., ¶¶ 4-7,

15 Exhs. A-C.) Assuming arguendo that the Court orders production of the account numbers, which

16 Trader Joe’s believes inappropriate, the Court should, at a minimum, require notice to impacted

17 former crew members.

18 IV. CONCLUSION
For the reasons set forth above, Defendant respectfully requests that the Court deny
19
Plaintiff’s motion to compel production of paycard account and routing numbers. In the alternative,
20
should the Court determine that production of the financial data at issue is appropriate, Defendant
21
requests a Court Order requiring Plaintiff to serve impacted individuals with notice of the subpoena
22
so as to provide an opportunity for individuals to object to production of such.
23

24 Dated: January 26, 2022 LITTLER MENDELSON P.C.

26
Helene Wasserman
27 Shannon R. Boyce
Attorneys for Defendant
28 TRADER JOE’S COMPANY
LITTLER MEND ELSO N P.C.
Attorneys at Law

8
2049 C entury Park East
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES
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 January 26, 2022, I served true
5
copies of the following document(s) described as
6
DEFENDANT TRADER JOE’S COMPANY’S MEMORANDUM OF POINTS AND
7 AUTHORITIES IN OPPOSITION TO PLAINTIFF VICTORIA TICE’S MOTION TO
COMPEL FURTHER RESPONSES
8
on the interested parties in this action as follows:
9

10
Larry W Lee William L. Marder
11 Max W. Gavron Polaris Law Group LLP
Diversity Law Group 501 San Benito St., Suite 200
12
515 S. Figueroa St., Suite 1250 Hollister, CA 95023
13 Los Angeles, CA 90071 Telephone: (831) 531-4214
Telephone: (213) 488-6555 Facsimile: (831) 634-0333
14 Facsimile: (213) 488-6554 Email: bill@polarislawgroup.com
lwlee@diversitylaw.com
15 mgavron@diversitylaw.com
Olympia@diversitylaw.com
16
Erika@diversitylaw.com
17

18 VIA ELECTRONIC SERVICE: Based on a court order or an agreement of
 the parties to accept electronic service, including pursuant to Code of Civil
19 Procedure section 1010.6, which allows for service by e-mail or electronic
transmission, I caused the documents to be sent to the persons at the electronic
20 service addresses listed herein. My email address is mgerard@littler.com.
21

22 I declare under penalty of perjury under the laws of the State of California that the

23 foregoing is true and correct. Executed on January 26, 2022, at Los Angeles, California.

24 Mary Ann Gerard

26 4864-5307-1622.3 / 071820-1075

28
LITTLER MEND ELSO N P.C.
2049 C entury Park East

9
5th Floor
Los Angeles, CA 90067.3107
310.553.0308

DEFENDANT’S OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES

Case Info

Judge

Anderle, Thomas P Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

January 26, 2022

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

For full print and download access, please subscribe at https://www.trellis.law/.

No Value: Victoria Tice, etc., v. Trader Joe’s Company

Preview

Related Topics

Case Info

Parties