Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107
CIVIL LAW & MOTION
Little Caesar Enterprises Wage and Hour Cases
|Hearing Date:||Mon Apr 14, 2014 9:30|
Nature of Proceedings: Re-Posted Tentative from 4/11
These are coordinated wage and hour actions brought against defendant Little Caesars
Enterprises, Inc. (LCE). Plaintiff Jonathan Macias asserts one cause of action for Labor
Code violations under the provisions of the Labor Code Private Attorneys General Act of
2004 (PAGA), Labor Code section 2698 et seq.
At issue here are special interrogatories and requests for document production requests
served by Macias on LCE which are discussed in more detail below. Following the meet
and confer discussions of the parties, the principal dispute is the permissible scope of this
discovery. Macias asserts that his operative complaint, the fourth amended complaint
(4AC), alleges statewide claims of Labor Code violations. Macias’s discovery seeks
information and documents reflecting these statewide claims. LCE asserts that Macias has
alleged claims only with respect to the single store at which Macias worked. LCE asserts
that it has provided responses as to that store, but that Macias is not entitled to discovery
beyond that store.
Macias now moves to compel further responses to his special interrogatories and requests
for document production requests. LCE opposes the motions. Each party seeks monetary
sanctions from the other.
(1) Special Interrogatories
“On receipt of a response to interrogatories, the propounding party may move for an order
compelling a further response if the propounding party deems that any of the following apply:
“(1) An answer to a particular interrogatory is evasive or incomplete.
“(2) An exercise of the option to produce documents under Section 2030.230 is
unwarranted or the required specification of those documents is inadequate.
“(3) An objection to an interrogatory is without merit or too general.”
(Code Civ. Proc., § 2030.300, subd. (a).)
Macias seeks to compel further responses to special interrogatories nos. 1-6. Special
interrogatory no. 1 requests the name, last known address, telephone number, position and
dates of employment of each non-exempt, hourly employee of LCE for the period from one
year before the filing of Macias’s complaint to the present. Special interrogatories nos. 2-6
request for this same time period the number of employees (2), the number of current
employees (3), the job titles of current employees (4), the number of former employees (5),
and the job titles of former employees (6).
LCE objected to special interrogatory no. 1 on the grounds that these interrogatories are
overbroad, not relevant and not reasonably calculated to lead to the discovery of admissible
evidence, violate rights of privacy of the employees, are oppressive and unduly
burdensome. Notwithstanding LCE’s objections, LCE states that “Defendant is willing to
meet and confer with Plaintiff regarding a notice procedure for obtaining contact information
for employees who worked at Plaintiff[’]s store location to protect the privacy interests of
relevant third party individuals.”
(A) Scope of Permissible Discovery
In opposing this motion, LCE’s principal argument is that the scope of permissible
discovery is limited to the operative complaint and that the operative complaint is limited to
allegations of violations at the store where Macias was employed. Macias disputes that his
complaint is so narrow and both parties refer to this court’s rulings on the pleadings.
On February 21, 2014, the court heard LCE’s motion to strike portions of Macias’s 4AC.
LCE argued in that motion that Macias had only alleged a PAGA cause of action based
upon Labor Code violations occurring at the store where he worked and that Macias had
only alleged that these same Labor Code violations occurred at other stores on information
and belief. The court denied LCE’s motion to strike because a motion to strike could not be
used to excise allegations that are not “irrelevant, false or improper matter.”
In resolving the motion, the court noted that Macias had directly alleged Labor Code
violations at his store. Macias alleged on information and belief that other aggrieved
employees suffered similar work experiences, based upon allegations that the other
aggrieved employees share common job duties and descriptions, that the other aggrieved
employees are all subject to LCE’s policy and practices that require them to perform work
without compensation, and that, at the employees’ orientation session, LCE emphasized
following LCE’s common policies and practices regardless of location. Contrary to LCE’s
argument in this motion, the court did not specifically limit Macias’s claims to Macias’s own
store. The court ruled only that allegations of violations as to other aggrieved employees at
Macias’s own store were sufficient for pleading purposes to defeat the motion to strike.
Macias has alleged in the 4AC claims of Labor Code violations at stores statewide. This
broad scope of the 4AC was the basis of LCE’s motion to strike. LCE contended in the
motion to strike, and contends here, that it is insufficient for Macias to allege statewide
Labor Code violations on information and belief without having a specific basis for that belief
beyond adherence to policies and practices that Macias alleges resulted in Labor Code
violations at his own store.
“When a plaintiff ‘lacks knowledge and the means of obtaining knowledge of facts material
to his or her cause of action’ because ‘the matters are peculiarly within the knowledge of
the adverse party, and the pleader can learn of them only from statements of others,’ ‘the
pleader may plead what he or she believes to be true as a result of information (hearsay)
the pleader has received.’ [Citation.]” (Dey v. Continental Central Credit (2008) 170
Cal.App.4th 721, 725, fn. 1.) What occurs by virtue of common policies and practices at
other stores would be information peculiarly within the knowledge of LCE. Macias’s pleading
of the occurrence of Labor Code violations at such other store may appropriately be upon
information and belief.
“Notwithstanding any other provision of law, any provision of this code that provides for a
civil penalty to be assessed and collected by the Labor and Workforce Development
Agency or any of its departments, divisions, commissions, boards, agencies, or
employees, for a violation of this code, may, as an alternative, be recovered through a civil
action brought by an aggrieved employee on behalf of himself or herself and other current
or former employees pursuant to the procedures specified in Section 2699.3.” (Lab. Code,
§ 2699, subd. (a).) Labor Code section 2699, subdivision (f), imposes a civil penalty for
violations of the Labor Code which do not themselves provide for a civil penalty. Labor Code
section 2699, subdivision (g), with certain exceptions, authorizes “an aggrieved employee”
to recover that civil penalty in a civil action. “For purposes of this part, ‘aggrieved employee’
means any person who was employed by the alleged violator and against whom one or
more of the alleged violations was committed.” (Lab. Code, § 2699, subd. (c).)
“The Labor Code Private Attorneys General Act of 2004 permits an ‘“aggrieved employee”’—
that is, an employee against whom a violation of a provision of the Labor Code was
committed [citation]—to bring an action ‘on behalf of himself or herself and other current or
former employees’ to recover civil penalties for violations of other provisions of the Labor
Code [citation]. In bringing such an action, the aggrieved employee acts as the proxy or
agent of state labor law enforcement agencies, representing the same legal right and
interest as those agencies, in a proceeding that is designed to protect the public, not to
benefit private parties.” (Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior
Court (2009) 46 Cal.4th 993, 1003.)
PAGA does not limit the scope of an action that may be brought by one “aggrieved
employee” for the same violations allegedly committed by the employer against other
current and former employees. PAGA does not limit the scope of an action based upon how
long the representative aggrieved employee was employed by the employer. Macias has
alleged statewide violations and a basis for believing that those violations were committed
at other stores following the same policies and procedures. Macias’s allegations of his
representative claim are not limited to his own store. Thus, the pleadings do not restrict the
scope of discovery to Macias’s own store. Accordingly, the scope of permissible discovery,
subject to all of the rules of discovery, permits Macias to obtain information that is relevant
to, or reasonably calculated to lead to the discovery of evidence of, his statewide claims.
(See Code Civ. Proc., §§ 2017.010, 2017.020.)
(B) LCE Objections to Special Interrogatories
The special interrogatories here request contact information for current and former
employees and summary information as to employee numbers. Because, as discussed
above, Macias’s representative claims relate to conduct of LCE towards its employees
statewide, the contact information is within the scope of discovery. LCE’s objections based
upon the discovery being outside its permissible scope or otherwise overbroad are without
LCE also objects to this discovery on the grounds that the discovery is oppressive and
unduly burdensome. It is certainly true that responding to requests for information on a
statewide basis has the potential for being oppressive and unduly burdensome.
“The objection of burden is valid only when that burden is demonstrated to result in
injustice. Hence, the trial court is not empowered to sustain an objection in toto, when the
same is predicated upon burden, unless such is the only method of rendering substantial
justice.” (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 418.)
LCE, however, has provided no evidence of the burden from its production of information
responsive to the special interrogatories. Instead, LCE argues that “[b]ased upon the
scarcity of Plaintiff’s allegations, it would be unjust and unduly burdensome to grant Plaintiff
statewide contact information.” (Liao decl. re special interrogatories, ¶ 11.) This argument,
with accompanying evidence, would have been more appropriate to a motion for a
protective order to limit the scope of discovery based upon a balancing of the “burden,
expense, or intrusiveness of that discovery” with “the likelihood that the information sought
will lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020, subd. (a).)
LCE did not seek a protective order, but stood on its objections not to respond. The court
has no factual basis to determine that there is any significant burden in responding to this
discovery. LCE’s objection based upon burden is not well taken.
LCE finally argues that providing employee contact information would violate the privacy of
In the class action context, the California Supreme Court has held: “Contact information
regarding the identity of potential class members is generally discoverable, so that the lead
plaintiff may learn the names of other persons who might assist in prosecuting the case.
[Citations.] Such disclosure involves no revelation of personal or business secrets, intimate
activities, or similar private information, and threatens no undue intrusion into one’s
personal life, such as mass-marketing efforts or unsolicited sales pitches.” (Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 373.) Disclosure of contact
information of potential class members has also been authorized in Belaire-West
Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 560, Puerto v. Superior
Court (2008) 158 Cal.App.4th 1242, 1259, and other similar cases.
There is no principled distinction between discovery of current and former employees of
LCE in a class action context and in the context of a PAGA representative action. If this
action were brought as a class action, the potential class members would be the current
and former employees of LCE whose information is sought by the special interrogatories.
As a PAGA action, the current and former employees are potential witnesses to the
occurrence of the alleged Labor Code violations and the PAGA action itself may have a
binding effect upon those current and former employees. (See Arias v. Superior Court
(2009) 46 Cal.4th 969, 985.) Disclosure of the contact information is appropriate given the
nature of Macias’s claims.
LCE asserts that Macias should not be entitled to this information because Macias has
been unsuccessful in learning of other incidents of Labor Code violations at LCE
notwithstanding solicitation on the internet. The success or failure of Macias’s extrajudicial
investigations is not relevant to either Macias’s right to discovery or to the privacy analysis
that is appropriate here. (See Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1259
[notice to employees preventing disclosure unless employees opted in too restrictive].)
The privacy analysis here is essentially the same as in the other wage and hour cases
discussing this issue. (E.g., Belaire-West Landscape, Inc. v. Superior Court, supra, 149
Cal.App.4th at pp. 558-562.) Present and former employees of LCE are potential witnesses
who may have evidence to support or to refute Macias’s claims. Macias has a significant
interest in obtaining this discovery. Present and former employees of LCE have a privacy
interest in their contact information, but disclosure of their contact information for litigation
purposes does not impose an undue intrusion upon that privacy interest. As in Belaire-West
Landscape, Inc. and in In re Ins. Installment Fee Cases (2012) 211 Cal.App.4th 1395, 1429,
the imposition on these privacy interests may be appropriately mitigated by sending an opt-
out notice to the affected employees prior to disclosure. LCE had offered to meet and
confer regarding such a notice, but limited its willingness to discuss such a notice to the
employees of the store where Macias was employed.
The court will require a further response to special interrogatory no. 1 following mailing of an
opt-out notice by which employees may request that their information not be disclosed.
Defendant shall bear the cost of the opt-out notice. The further response will not disclose
the information of those employees opting out as provided by the notice. Counsel for the
parties are ordered to meet and confer no later than April 25, 2014, in person or by
telephone, as to the specifics of the notice including the content of the notice, the date the
notice is to be sent, the deadline for responding to the notice, and the date for service of a
further response to special interrogatory no. 1. To the extent that the parties cannot agree,
one or both parties may bring a further noticed motion.
Special interrogatories nos. 4 and 6 are redundant, with the information sought included in
special interrogatory no. 1. Special interrogatories nos. 2, 3 and 5 request counts of
employees only and do not implicate the privacy interest of any individual employee. LCE
will be required to provide further responses to special interrogatories nos. 2, 3 and 5
(2) Requests for Production of Documents
“On receipt of a response to a demand for inspection, copying, testing, or sampling, the
demanding party may move for an order compelling further response to the demand if the
demanding party deems that any of the following apply:
“(1) A statement of compliance with the demand is incomplete.
“(2) A representation of inability to comply is inadequate, incomplete, or evasive.
“(3) An objection in the response is without merit or too general.” (Code Civ.
Proc., § 2031.310, subd. (a).)
Macias moves to compel further responses to requests for production nos. 1, 2, 6 through
13, 15 through 21, 24 through 30, and 33 through 39. These requests fall into two general
categories: documentation of LCE procedures and documentation of employee wages and
(A) Requests for Documentation of Procedures
Request no. 1 is for: “All drafts, iterations, editions, and versions of any of the employee
handbooks or manuals provided to COVERED EMPLOYEES during the RELEVANT TIME
Macias argues that these requested documents are relevant and appropriate as to the
LCE’s policies and procedures that are at issue in this action.
LCE objects to this request arguing that the term “COVERED EMPLOYEES” is vague and
ambiguous, that the request seeks documents outside the scope of permissible discovery,
that it violates individual employees rights to privacy, that it is duplicative of discovery
already produced by LCE, that it is unduly burdensome and oppressive, that it seeks
documents protected by the attorney-client and work product privileges, and that it seeks
confidential and proprietary information.
The term “COVERED EMPLOYEES” is defined as all non-exempt or hourly employees
who worked for LCE at LCE’s California restaurant locations at any time during
the “relevant time period.” “Relevant time period” is defined as the time commencing from
July 11, 2011, through the present. LCE does not explain how the term “covered
employees” is so vague or ambiguous that a meaningful response could not be made. (See
Code Civ. Proc., § 2031.240, subd. (a).) LCE’s objection on the ground of vagueness or
ambiguity has no merit.
As discussed above, LCE is incorrect as to the scope of permissible discovery. Macias has
alleged statewide claims and, subject to all of the other rules of discovery, is permitted
discovery as to those statewide claims. LCE will be required to respond to the requests
within this scope of permissible discovery.
With respect to this request, there is no apparent basis for an objection on the grounds of
individual employee privacy for LCE company policy manuals. This objection has no merit.
LCE asserts that this request is duplicative of discovery already provided to Macias
because LCE has produced the handbook which was provided to Macias at the time of his
employment. This handbook is a responsive document. However, LCE’s written response
consists solely of objections and does not state that any documents are being produced.
(See Code Civ. Proc., § 2031.220.) LCE does not need to produce the same document
multiple times where it is responsive to more than one production request, but does need to
provide a verified response. LCE needs to state in its response that it is producing all
responsive documents in its possession, custody or control or otherwise as stated in the
Code of Civil Procedure. (Code Civ. Proc., § 2031.210, subd. (a).)
LCE asserts that this request seeks documents protected by the attorney-client privilege
and work product privilege. In asserting these privileges, LCE has not provided a privilege
log identifying any document withheld on the basis of privilege. (See Code Civ. Proc., §
2031.240, subd. (c).) LCE argues that because an attorney may have drafted different
versions, such versions would be protected by privilege. Different versions that have been
disseminated to employees as reflecting LCE company policy would not be protected as
privileged. On the other hand, the court does not understand the request to include any
documents not circulated or circulated confidentially and solely among attorneys. To the
extent that there are versions of responsive documents that have not been disseminated as
reflecting LCE company policy but have been circulated outside of legal counsel, privileges
may or may not apply. LCE will be required to provide a privilege log identifying all such
documents and setting forth sufficient facts to support the privilege asserted so that the
parties, or the court if necessary, can resolve the privilege issues.
As with the interrogatories, there is a potential for the burden of these requests to be
oppressive. However, LCE has provided no evidence of oppression. For the same reason
as with the interrogatories, this objection has no merit.
Finally LCE argues that these documents are confidential. These documents are, however,
directly relevant to Macias’s claims. The documents will be produced subject to the
LCE will be required to provide a further response to request for production no. 1.
To the extent that the remaining requests seek policy documents (that is, documents not
relating to individual employees), the foregoing analysis applies and LCE will be required to
provide a further response for the same reason.
(B) Request for Employee Documentation
The next category of documents includes documents relating to individual employees.
Request for production no. 6 is:
“All DOCUMENTS that constitute YOUR policies and procedures CONCERNING
timekeeping including, but not limited to, the attendance/ time sheet completed by
COVERED EMPLOYEES, and any adjustments or corrections made to COVERED
EMPLOYEES’ clock-in and clock-out times during the RELEVANT TIME PERIOD.”
With the exception of the privacy issues, LCE’s objections are without merit for the same
reasons as discussed above. With respect to privacy, the individual employees have a
stronger privacy interest in their payroll records than in their contact information. At the
same time, Macias’s interest in the disclosure of this information is not specific to particular
individuals. The stronger privacy interest can be accommodated by providing Macias with
the documents with employee indentifying information removed and replaced with a unique
identifier for reference in case the individual records need to be matched. LCE points out
that it has produced such records for the store at which Macias was employed as Excel
spreadsheets containing the responsive records. The court assumes that such electronic
records are available as to all other stores in the same manner. LCE will be required to
provide these electronic records with the identifying information changed. Production of
these electronic records will be a sufficient production in response to requests for individual
employment documents at this time. In the event that particular other records or paper files
are appropriately sought, Macias may seek those records by a new document production
“Except as provided in subdivision (j), the court shall impose a monetary sanction under
Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel further response to a demand,
unless it finds that the one subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. §
2031.310, subd. (h); accord, § 2030.300, subd. (d).)
Macias has successfully made these motions. LCE’s requests for sanctions are therefore
denied. LCE has unsuccessfully opposed these motions. LCE’s basis for resisting this
discovery has been its argument that Macias’s pleadings were insufficient to support
Macias’s statewide claims. When the pleadings were settled, the scope of the pleadings
was also settled. LCE has presented no evidence that information requested by this
discovery is actually oppressive or burdensome. The court does not find that LCE acted
with substantial justification. The court must therefore award monetary sanctions against
Macias requests $6,580 as to each of these two motions. After considering the substantial
similarity of the motions, the issues presented and the number and type of discovery
addressed in each, the court finds that the substantial overlap makes the total request
unreasonable. The court will award $6,580 in monetary sanctions against LCE to be paid
within thirty (30) days.
As set forth herein, the motions of plaintiff Jonathan Macias to compel are granted.
Defendant Little Caesars Enterprises, Inc., shall serve verified further responses to
Macias’s special interrogatories nos. 2, 3 and 5, and to Macias’s requests for document
production nos. 1, 2, 6 through 13, 15 through 21, 24 through 30, and 33 through 39,
together with all responsive documents except those withheld on the grounds of privilege
and for which a privilege log is concurrently served, on or before May 15, 2014. The written
responses shall be in the form required by the Code of Civil Procedure. The parties shall
meet and confer as to the sending of an opt-out notice to employees as provided herein
with the cost of the opt-out notices to be borne by defendant; defendant shall serve verified
further responses to special interrogatories nos. 1, 4 and 6, as provided herein. Macias’s
request for an award of monetary sanctions is granted in the amount of $6,580 against
defendant Little Caesars Enterprises, Inc.; defendant’s request for monetary sanctions is