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Tentative Ruling
Judge Donna Geck
Department 4 SB-Anacapa
1100 Anacapa Street P.O. Box 21107 Santa Barbara, CA 93121-1107


Little Caesar Coordinated Actions

Case No: CORD4750
Hearing Date: Wed Apr 16, 2014 9:30

Nature of Proceedings: Re Posted Tentative from April 11th Hearing

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 merit.


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 those employees.


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 forthwith.


(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 hours.


          (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 PERIOD.”


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 confidentiality order.


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 request.


(3)     Sanctions


“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 LCE.


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.


Tentative Ruling:

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 denied.

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