Preview
1 Larry W. Lee (State Bar No. 228175)
Max W. Gavron (State Bar No. 291697)
2 DIVERSITY LAW GROUP, P.C.
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’S REPLY IN SUPPORT OF
17 MOTION TO COMPEL FURTHER
18 DISCOVERY RESPONSES TO
TRADER JOE’S COMPANY, a California PLAINTIFF’S SPECIAL
19 corporation; and DOES 1 through 50, INTERROGATORIES, SET THREE
inclusive,
20 Date: February 8, 2022
21 Defendants. Time: 10:00 a.m.
Dept.: SB Dept. 3
22
23
24
25
26
27
28
1
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO
PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE
1 I. INTRODUCTION
2 Plaintiff Victoria Tice (“Plaintiff”) has brought this action as a class and representative
3 Private Attorneys General Act (the “PAGA”) action against Trader Joe’s Company (“Defendant”).
4 As alleged in the operative Complaint, Plaintiff seeks civil penalties arising from Defendant’s
5 various wage and hour violations, including violation of Labor Code §§ 201-203 and 2698, et
6 seq. On December 8, 2021, the Parties participated in an information discovery conference
7 regarding the issue that is the subject of this Motion wherein the Court expressed it was likely to
8 require production of the account and routing numbers for the aggrieved employees’ paycard
9 accounts. Nonetheless, Defendant still opposes Plaintiff’s Motion.
10 II. PLAINTIFF PROPOSED A SOLUTION THAT BALANCES THE PRIVACY
11 INTERESTS OF AGGRIEVED EMPLOYEES WITH THE NEED FOR
12 INFORMATION
13 Defendant cites Williams v. Superior Court, 3 Cal. 5th 531, 552-55 (2017) in which the
14 California Supreme Court balanced the privacy interests of employees with the plaintiff
15 counsel’s need to obtain their contact information in a PAGA action. While Defendant is correct
16 that the Court must balance those interests, Plaintiff detailed how that balance would be achieved
17 in her Motion.
18 First, Plaintiff explained that the Parties entered a stipulated protective order, which
19 governs the production of information in the case. Supplemental Declaration of Max W. Gavron
20 (“Supp. Gavron Decl.”) ¶ 2. Defendant may designate the information it produces as
21 confidential pursuant to the terms of the order. Id.
22 Plaintiff also proposed a way to redact information obtained from the paycard provider to
23 alleviate any privacy concerns. Gavron Decl. ¶ 11. Plaintiff proposed that Trans Details, Trans
24 City, Amount, and Running Balance Column from the account ledger could all be redacted with
25 the exception of the first row, which denotes the final wages loaded on the paycard by
26 Defendant. In other words, the records would reflect when the card was loaded, and whether the
27 employee incurred any fees, and if so, the type of fees and date incurred. Gavron Decl. ¶ 11, Ex.
28 D. Accordingly, to the extent that the Court orders production of this information, there are
2
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO
PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE
1 several layers of protection available for the dissemination of this information to Plaintiff’s
2 counsel, which supports disclosure.
3 III. THE ACCOUNTS AND ROUTING NUMBERS ARE RELEVANT AND
4 DISCOVERABLE
5 Defendant argues that the information regarding whether employees incurred fees is not
6 relevant. Defendant relies on Plaintiff’s argument that her PAGA claim does not necessarily
7 require employees to have incurred fees to find Defendant liable because it failed to obtain
8 consent. See Opp’n at 7. Under the PAGA, “a court may award a lesser amount than the
9 maximum civil penalty amount specified by this part if, based on the facts and circumstances of
10 the particular case, to do otherwise would result in an award that is unjust, arbitrary and
11 oppressive, or confiscatory.” Lab. Code § 2699(e)(2). Thus, while Plaintiff contends she could
12 prevail on her PAGA claim without necessarily demonstrating that aggrieved employees for
13 whom Defendant does not have authorizations incurred fees, that information is relevant and
14 discoverable because it could have an impact on the Court’s ability to reduce any civil penalty
15 assessed. For example, if the vast majority of aggrieved employed did, in fact, incur fees as a
16 result of using their paycards, Plaintiff would use this information to combat Defendant’s
17 anticipated argument that awarding penalties would be unjust because it did its best to comply
18 with the law.
19 Separately, whether the Court could award civil penalties for Defendant’s alleged
20 violation of Labor Code § 203, which requires payment of all wages due and owing upon
21 separation, would be governed by whether Plaintiff is able to demonstrate that aggrieved
22 employees incurred fees while using their paycards. As has been briefed previously, Plaintiff
23 contends that employees who incurred fees did not receive their final wages upon separation,
24 resulting in penalties under Labor Code § 203. Accordingly, the accounts and routing numbers
25 are necessary to establish this crucial piece of evidence, regardless of whether Plaintiff were to
26 prevail on her claim that Defendant’s failure to obtain consent from employees prior to issuing
27 paycards was lawful.
28 If Defendant is permitted to withhold the information requested by these interrogatories,
3
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO
PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE
1 it should not be permitted to use the fact that Plaintiff was unable to extract this information from
2 it as a defense.
3 IV. DEFENDANT’S ARGUMENTS REGARDING AN ANTICIPATED SUBPOENA
4 ARE PREMATURE AND EASILY RESOLVED, IN ANY CASE
5 Defendant’s arguments regarding the notice to consumer requirements for purposes of
6 subpoenaing consumer records are premature. While Plaintiff generally does not dispute the
7 requirements for obtaining consumer records in California, those issues are not the subject of this
8 Motion. Plaintiff’s Motion focuses on Defendant’s deficient responses to written discovery, and
9 thus the requirements of Code of Civil Procedure Section 1985.3 have no bearing on the
10 resolution of a motion regarding discovery responses. If the Court grants Plaintiff’s current
11 Motion and Plaintiff subpoenas the aggrieved employees’ records from COMDATA, Defendant
12 may move to quash any subpoena it deems defective, Code Civ. Pro. § 1987.1—at which point,
13 the issues raised in Defendant’s opposition might be ripe for the Court’s consideration.
14 For the sake of argument, if the Court orders Defendant to produce the account and
15 routing numbers, such that Plaintiff would be able to subpoena COMDATA, Plaintiff would
16 engage a third-party administrator to assist in the distribution of a notice to consumer to all
17 aggrieved employees. Supp. Gavron Decl. ¶¶ 2-3. Defendant already produced the contact
18 information of aggrieved employees after participating in a Belaire-West opt out process. Id. ¶ 3.
19 Thus, Plaintiff would be able to provide a notice to consumer to each aggrieved employee to in
20 conjunction with any subpoena issued, and allow the appropriate amount of time to transpire
21 prior to release of any records from COMDATA. Id.
22 V. CONCLUSION
23 For the reasons detailed above and in Plaintiff’s Motion, the Court should require
24 Defendant to produce the account and routing numbers for the aggrieved employees.
25 DATED: February 1, 2022 DIVERSITY LAW GROUP, P.C.
26
By: __________________________
27 Larry W. Lee
Max Gavron
28 Attorneys for Plaintiff and the Class
4
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO
PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE
1 PROOF OF SERVICE
2 (Code of Civil Procedure Sections 1013a, 2015.5)
3
STATE OF CALIFORNIA ]
4 ]ss.
COUNTY OF LOS ANGELES ]
5
6 I am employed in the County of Los Angeles, State of California. I am over the age of 18
and not a party to the within action; my business address is 515 S. Figueroa Street, Suite 1250,
7 Los Angeles, California 90071.
8 On February 1, 2022, I served the following document(s) described as:
9
1. PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL
10 FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL
INTERROGATORIES, SET THREE;
11
2. SUPPLEMENTAL DECLARATION OF MAX W. GAVRON IN SUPPORT
12 OF PLAINTIFF’S MOTION TO COMPEL FURTHER DISCOVERY
RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET
13 THREE
14 on the interested parties in this action as follows:
15 Helene Wasserman hwasserman@littler.com
16 Shannon R. Boyce sboyce@littler.com
Kennell M. Sambour ksambour@littler.com
17 Carolyn Ward cward@littler.com
Littler Mendelson, P.C.
18 2049 Century Park East, 5th Floor
19 Los Angeles, CA 90067
Attorneys for Defendant Trader Joe’s Company
20
X BY ELECTRONIC SERVICE: Based on a court order I caused the above-
21 entitled document(s) to be served through the Odyssey eFileCA E-Filing System at the website
22 www.california.tylerhost.net, addressed to all parties appearing on the electronic service list for
the above-entitled case. The service transmission was reported as complete and a copy of the
23 filing receipt/confirmation will be filed, deposited, or maintained with the original document(s)
in this office.
24
25 I declare under penalty of perjury under the laws of the State of California that the above
is true and correct. Executed on February 1, 2022, at Los Angeles, California.
26
_________________________________
27 Linda Lee
28
5
PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO
PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE
Preview
1 Larry W. Lee (State Bar No. 228175) Max W. Gavron (State Bar No. 291697) 2 DIVERSITY LAW GROUP, P.C. 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’S REPLY IN SUPPORT OF 17 MOTION TO COMPEL FURTHER 18 DISCOVERY RESPONSES TO TRADER JOE’S COMPANY, a California PLAINTIFF’S SPECIAL 19 corporation; and DOES 1 through 50, INTERROGATORIES, SET THREE inclusive, 20 Date: February 8, 2022 21 Defendants. Time: 10:00 a.m. Dept.: SB Dept. 3 22 23 24 25 26 27 28 1 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE 1 I. INTRODUCTION 2 Plaintiff Victoria Tice (“Plaintiff”) has brought this action as a class and representative 3 Private Attorneys General Act (the “PAGA”) action against Trader Joe’s Company (“Defendant”). 4 As alleged in the operative Complaint, Plaintiff seeks civil penalties arising from Defendant’s 5 various wage and hour violations, including violation of Labor Code §§ 201-203 and 2698, et 6 seq. On December 8, 2021, the Parties participated in an information discovery conference 7 regarding the issue that is the subject of this Motion wherein the Court expressed it was likely to 8 require production of the account and routing numbers for the aggrieved employees’ paycard 9 accounts. Nonetheless, Defendant still opposes Plaintiff’s Motion. 10 II. PLAINTIFF PROPOSED A SOLUTION THAT BALANCES THE PRIVACY 11 INTERESTS OF AGGRIEVED EMPLOYEES WITH THE NEED FOR 12 INFORMATION 13 Defendant cites Williams v. Superior Court, 3 Cal. 5th 531, 552-55 (2017) in which the 14 California Supreme Court balanced the privacy interests of employees with the plaintiff 15 counsel’s need to obtain their contact information in a PAGA action. While Defendant is correct 16 that the Court must balance those interests, Plaintiff detailed how that balance would be achieved 17 in her Motion. 18 First, Plaintiff explained that the Parties entered a stipulated protective order, which 19 governs the production of information in the case. Supplemental Declaration of Max W. Gavron 20 (“Supp. Gavron Decl.”) ¶ 2. Defendant may designate the information it produces as 21 confidential pursuant to the terms of the order. Id. 22 Plaintiff also proposed a way to redact information obtained from the paycard provider to 23 alleviate any privacy concerns. Gavron Decl. ¶ 11. Plaintiff proposed that Trans Details, Trans 24 City, Amount, and Running Balance Column from the account ledger could all be redacted with 25 the exception of the first row, which denotes the final wages loaded on the paycard by 26 Defendant. In other words, the records would reflect when the card was loaded, and whether the 27 employee incurred any fees, and if so, the type of fees and date incurred. Gavron Decl. ¶ 11, Ex. 28 D. Accordingly, to the extent that the Court orders production of this information, there are 2 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE 1 several layers of protection available for the dissemination of this information to Plaintiff’s 2 counsel, which supports disclosure. 3 III. THE ACCOUNTS AND ROUTING NUMBERS ARE RELEVANT AND 4 DISCOVERABLE 5 Defendant argues that the information regarding whether employees incurred fees is not 6 relevant. Defendant relies on Plaintiff’s argument that her PAGA claim does not necessarily 7 require employees to have incurred fees to find Defendant liable because it failed to obtain 8 consent. See Opp’n at 7. Under the PAGA, “a court may award a lesser amount than the 9 maximum civil penalty amount specified by this part if, based on the facts and circumstances of 10 the particular case, to do otherwise would result in an award that is unjust, arbitrary and 11 oppressive, or confiscatory.” Lab. Code § 2699(e)(2). Thus, while Plaintiff contends she could 12 prevail on her PAGA claim without necessarily demonstrating that aggrieved employees for 13 whom Defendant does not have authorizations incurred fees, that information is relevant and 14 discoverable because it could have an impact on the Court’s ability to reduce any civil penalty 15 assessed. For example, if the vast majority of aggrieved employed did, in fact, incur fees as a 16 result of using their paycards, Plaintiff would use this information to combat Defendant’s 17 anticipated argument that awarding penalties would be unjust because it did its best to comply 18 with the law. 19 Separately, whether the Court could award civil penalties for Defendant’s alleged 20 violation of Labor Code § 203, which requires payment of all wages due and owing upon 21 separation, would be governed by whether Plaintiff is able to demonstrate that aggrieved 22 employees incurred fees while using their paycards. As has been briefed previously, Plaintiff 23 contends that employees who incurred fees did not receive their final wages upon separation, 24 resulting in penalties under Labor Code § 203. Accordingly, the accounts and routing numbers 25 are necessary to establish this crucial piece of evidence, regardless of whether Plaintiff were to 26 prevail on her claim that Defendant’s failure to obtain consent from employees prior to issuing 27 paycards was lawful. 28 If Defendant is permitted to withhold the information requested by these interrogatories, 3 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE 1 it should not be permitted to use the fact that Plaintiff was unable to extract this information from 2 it as a defense. 3 IV. DEFENDANT’S ARGUMENTS REGARDING AN ANTICIPATED SUBPOENA 4 ARE PREMATURE AND EASILY RESOLVED, IN ANY CASE 5 Defendant’s arguments regarding the notice to consumer requirements for purposes of 6 subpoenaing consumer records are premature. While Plaintiff generally does not dispute the 7 requirements for obtaining consumer records in California, those issues are not the subject of this 8 Motion. Plaintiff’s Motion focuses on Defendant’s deficient responses to written discovery, and 9 thus the requirements of Code of Civil Procedure Section 1985.3 have no bearing on the 10 resolution of a motion regarding discovery responses. If the Court grants Plaintiff’s current 11 Motion and Plaintiff subpoenas the aggrieved employees’ records from COMDATA, Defendant 12 may move to quash any subpoena it deems defective, Code Civ. Pro. § 1987.1—at which point, 13 the issues raised in Defendant’s opposition might be ripe for the Court’s consideration. 14 For the sake of argument, if the Court orders Defendant to produce the account and 15 routing numbers, such that Plaintiff would be able to subpoena COMDATA, Plaintiff would 16 engage a third-party administrator to assist in the distribution of a notice to consumer to all 17 aggrieved employees. Supp. Gavron Decl. ¶¶ 2-3. Defendant already produced the contact 18 information of aggrieved employees after participating in a Belaire-West opt out process. Id. ¶ 3. 19 Thus, Plaintiff would be able to provide a notice to consumer to each aggrieved employee to in 20 conjunction with any subpoena issued, and allow the appropriate amount of time to transpire 21 prior to release of any records from COMDATA. Id. 22 V. CONCLUSION 23 For the reasons detailed above and in Plaintiff’s Motion, the Court should require 24 Defendant to produce the account and routing numbers for the aggrieved employees. 25 DATED: February 1, 2022 DIVERSITY LAW GROUP, P.C. 26 By: __________________________ 27 Larry W. Lee Max Gavron 28 Attorneys for Plaintiff and the Class 4 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE 1 PROOF OF SERVICE 2 (Code of Civil Procedure Sections 1013a, 2015.5) 3 STATE OF CALIFORNIA ] 4 ]ss. COUNTY OF LOS ANGELES ] 5 6 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 515 S. Figueroa Street, Suite 1250, 7 Los Angeles, California 90071. 8 On February 1, 2022, I served the following document(s) described as: 9 1. PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL 10 FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE; 11 2. SUPPLEMENTAL DECLARATION OF MAX W. GAVRON IN SUPPORT 12 OF PLAINTIFF’S MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET 13 THREE 14 on the interested parties in this action as follows: 15 Helene Wasserman hwasserman@littler.com 16 Shannon R. Boyce sboyce@littler.com Kennell M. Sambour ksambour@littler.com 17 Carolyn Ward cward@littler.com Littler Mendelson, P.C. 18 2049 Century Park East, 5th Floor 19 Los Angeles, CA 90067 Attorneys for Defendant Trader Joe’s Company 20 X BY ELECTRONIC SERVICE: Based on a court order I caused the above- 21 entitled document(s) to be served through the Odyssey eFileCA E-Filing System at the website 22 www.california.tylerhost.net, addressed to all parties appearing on the electronic service list for the above-entitled case. The service transmission was reported as complete and a copy of the 23 filing receipt/confirmation will be filed, deposited, or maintained with the original document(s) in this office. 24 25 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 1, 2022, at Los Angeles, California. 26 _________________________________ 27 Linda Lee 28 5 PLAINTIFF’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER DISCOVERY RESPONSES TO PLAINTIFF’S SPECIAL INTERROGATORIES, SET THREE