WILLIAMS v. S.C. (MARSHALLS OF CA)

Amicus Curiae Brief of Consumer Attorneys of California

Cal.May 17, 2016

CASE NO. 8227228 SUPREME COURT COPY IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,anindividual, Plaintiffand Appellant, Vv. SUPERIOR COURT OF CALIFORNIA ‘ SUPREME COURT FOR THE COUNTY OF LOS ANGELES, cm E D Defendant and Respondent. PE Bem Teo Deel MARSHALLSOF CA, LLC, MAY 17 2016 Real Party in Interest. Frank A. McGuire Clerk . Deputy After a Decision Of The Court OfAppeal, Second Appellate District, Division One, Case No. B259967 From The Superior Court, County of Los Angeles, Case No. BC503806, Assigned For All Purposes To Judge William F. Highberger, Department 322 APPLICATION BYAMICUS CURIAE CONSUMER ATTORNEYS OF CALIFORNIA FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT WILLIAM TURLEY,Esq. (122408) DAVID T. MARA,Esq. (230498) JAMIE SERB,Esq. (289601) THE TURLEY LAW FIRM, APLC 7428 Trade Street San Diego, CA 92121 Attorneysfor Amicus Curiae Consumer Attorneys ofCalifornia TABLE OF CONTENTS CERTIFICATE OF INTERESTED ENTITIES OR PERSONS APPLICATION OF CONSUMER ATTORNEYSOF CALIFORNIA FOR LEAVE TO FILE A BRIEF AS AMICUS CURIAE IN SUPPORT OF PLAINTIFF AND APPELLANT INTRODUCTION DISCUSSION A. The Court Of Appeal’s Decision In Williams Frustrates The Representative Capacity OfA PAGARepresentative Plaintiff— A PAGA Representative Does Not Have Individual Claims 1. A PAGARepresentative Plaintiff Is A Proxy For TheState’s Labor Law Enforcement Agency 2. The Court of Appeal Misinterpreted PAGA WhenIt Imposed The Requirement That A PAGA Representative Plaintiff Must First Prove His “Individual” And Local Claims Before Being Allowed To Conduct Statewide Discovery 3. PAGA Representative Plaintiffs Seek To Fulfill Their Role As Proxies For The State Labor Law Enforcement Agency By Investigating Labor Code Violations Of The Statewide Employees The Plaintiff Is Required To Represent B. The Court of Appeal’s Decision In Williams Undermines The Purpose Of The PAGA, Which Is To Alleviate Overburdened State GovernmentEntities, Vindicate The State’s Interest In Enforcing The California Labor Code, And Deter Employers From Future Labor Code Violations 11 13 _ PAGA Actions Are A Type Of Qui Tam Action And A PAGARepresentative Plaintiff Should Have Access To Statewide Discovery To Investigate Claims Of Statewide Violations Of The Labor Code The Court ofAppeal’s Decision In Williams Is Fundamentally Unfair To Aggrieved Employees, AsIt Denies Aggrieved Employees The Opportunity To Participate In The PAGA Action Before the Court Makes Merits Determinations That Could Bind Them To An Adverse Decision That Will Collaterally Estop Them From Asserting Similar Claims 1. PAGA Actions Have A Collateral Estoppel Effect For Aggrieved Employees Represented by PAGA Plaintiffs 2. Unlike Class Actions, California Law Does Not Contain Notice Requirements For Aggrieved Employees OfPAGA Actions, So Plaintiff's Investigation May Be The Only Way These Employees Are Notified And Afforded The Opportunity To Participate In The Case The Court OfAppeal Mistakenly Applies A Class Action Requirement That Plaintiff Must Demonstrate A Uniform Statewide Policy. Employee Contact Information Is Routinely Discoverable — Regardless Of Whether The MatterIs A PAGAAction Or A Class Action The Requirements Imposed In Williams Before A PAGA Plaintiff Can Seek Statewide Discovery Will Be Used To Deny Class Plaintiff’s Class-Wide Pre-Certification Discovery CONCLUSION CERTIFICATE OF COMPLIANCE 16 17 18 20 22 24 26 30 32 PROOF OF SERVICE 33 TABLE OF AUTHORITIES Cases Arias v. Superior Court (2009) 46 Cal.4th 969 AT&TMobility LLC v. Concepcion (2011) 563 U.S. 333 Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554 Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004 Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489 Discover Bank v. Superior Court (2005) 36 Cal.4th 148 DirecTV, Inc. v. Inburgia (2015) 136 S. Ct. 463 Duran vy. U.S. Bank National Assn. (2014) 59 Cal.4th 1 Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069 In re Marriage ofBiddle (1997) 52 Cal.App.4th 396 Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348 9, 10, 14, 18 21, 23 15 21, 28 22 10, 11 15 15 22 20 16 8, 13, 14, 16, 18, 25 Machado v. M.A.T. & Sons Landscape, Inc. 2009 U.S. Dist. LEXIS 63414 10 Mantolete v. Bolger (9th Cir. 1985) 767 F.2d 1416 29 Pioneer Elecs. (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 18, 24 Plows v. Rockwell Collins, Inc. 812 F.Supp. 2d 1063 11 Sakkab v. Luxottica Retail N. Am. (9th Cir. 2015) 803 F.3d 425 14, 15 Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661 16 Urbino v. Orkin Services ofCalifornia, Inc. 2011 U.S.Dist. LEXIS 114746 11 Williams v. Superior Court (2015) 236 Cal.App.4th 1151 9, 12, 13, 17, 19, 22, 25, 26 Statutes Cal. Bus. & Prof. Code § 17200 20 Cal. Lab. Code § 2698 21 Cal. Lab. Code § 2699 8 Cal. Lab. Code § 2699.3 25 CERTIFICATE OF INTERESTED ENTITIES OR PERSONS The following application and brief are made by the Consumer Attorneys of California (““CAOC”). CAOCis a non-profit organization of attorneys andis not a party to this action. Pursuant to California Rule of Court 8.208, CAOC herebystates that no entity or person has an ownership interest of 10% or more in CAOC, and CAOC knowsofno personorentity that has a financial or other interest in the outcomeofthe proceeding under Rule 8.208. Date: May 6, 2016 Respectfully Submitted, — LALA William Turlé¥, Esq. David Mara, Esq. Jamie Serb, Esq. The Turley Law Firm, APLC 7428 Trade Street San Diego, CA 92121 APPLICATION OF CONSUMER ATTORNEYS OF CALIFORNIA FOR LEAVETO FILE A BRIEF AS AMICUS CURIAEIN SUPPORT OF PLAINTIFF AND APPELLANT TO THE HONORABLETANI CANTIL-SAKAUYE, CHIEF JUSTICE AND ASSOCIATE JUSTICES The undersigned respectfully requests permission to file a brief as amicus curiae in the matter of Williams v. Marshalls of CA, LLC, Case No. $227228, under California Rules of Court, rule 8.520(f) in support of Plaintiff and Appellant, Michael Williams, on behalf of Consumer Attorneys of California (““CAOC”). CAOC, founded in 1962, is a voluntary non-profit membership organization of approximately 3,000 consumer attorneys practicing in California. Its members predominantly represent individuals subjected to a variety ofunlawful and harmful businesspractices, including consumerfraud, personal injuries, wage and hourviolations, and insurance badfaith. CAOChastaken a leading role in advancing andprotecting the rights of injured citizens and employeesin both the courts and the Legislature. This has often occurred throughclass actions for violations of California’s Labor Code and Unfair Competition Law, which is codified at Cal. Bus. & Prof. Code §17200, et seq. In recent years, CAOC has participated as amicus curiae in manycases, including: Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 (our firm was one of the Plaintiff's counsel in the Brinker case); Kwikset v. Superior Court (2011) 51 Cal.4th 310; In re TobaccoII Cases (2009) 46 Cal.4th 298; Parks v. MBNA America Bank, N.A. (2012) 54 Cal.4th 376; and Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185. CAOC hasalso participated as an amicus in numerous cases pendingat the appellate level. CAOChas a substantive and abiding interest in ensuring PAGA actions retain their purpose and scope. Consistent with this, CAOC has a strong interest in ensuring PAGArepresentatives have the necessary access to discovery before the Court makes merits based decisions that will have a collateral estoppel effect on statewide aggrieved employees before they have an opportunity to participate in the PAGA action. CAOCalso has a strong interest in preserving the PAGArepresentative’s role as proxyforthe state labor law agencies andtheir ability to investigate Labor Codeviolations on behalf of employees throughout California. In response to California Rules of Court, rule 8.520(f)(4), no party or counsel for a party has authored the proposed brief in wholeorin part. Except for the authors themselves, no party, counselfor a party,or other person made amonetary contribution to fund the preparation ofthe following amicusbrief. The proposed brief follows. Executed in San Diego, California, this 6th day of May, 2016. Respectfully submitted, By: bo Willian’Turley,Esq. David Mara, Esq. Jamie Serb, Esq. The Turley Law Firm, APLC 7428 Trade Street San Diego, CA 92121 Attorneys for Amicus Curiae Consumer Attorneys ofCalifornia S e a t t i e c s EP R B e a To the Honorable Presiding Justice and the Honorable Associate Justices of the Court of Appeal of the State of California for the Second Appellate District: INTRODUCTION The Private Attorney General’s Act (“PAGA”), Labor Code section 2698, ef seqg., was created to alleviate overburdened state government agencies that did not have the resources necessary to pursue enforcement of the Labor Code. The PAGAallowsprivate citizens to stand in as proxiesfor California’s labor law enforcement agencies. A PAGA representative plaintiff's proxy role is to enforce the law and, on behalf of all aggrieved employees statewide, seek penalties against employers who have violated certain Labor Code sections. PAGA representative plaintiffs do not have their own individual claims, but instead, represent the state’s interest in enforcing the Labor Code and deterring employers from future violations. In order to carry out this role and investigate the employer’s Labor Code violations, the PAGA representative plaintiff requires access to statewide employee contact information. Such informationis routinely discoverable in both PAGAandclassactions, in light of the low risk of intrusion to privacy and the overall benefit these employees will have in participating in these actions. The Court of Appeal ignored established law by this Court, which routinely allows discovery of employee contact information. Instead, the Court below instilled merits based hurdles (prove his own “individual” claims, sit for a deposition, and prove employer’s “uniform”violations) that a PAGArepresentative plaintiff must accomplish before being allowed to conductstatewide discovery — i.e. obtain employee contact information. The Court below failed to consider the ramifications of requiring such merits based hurdles on a PAGArepresentative plaintiff — namely, the collateral estoppel effect ofPAGA judgements. Because aggrieved employees receive no notice of the action,it is extremely importantthat a PAGArepresentative plaintiff is allowed to conduct a Belaire-West notice procedure, which informs the employees of the action and affords them an opportunity to becomeinvolved in the case. An adverse judgment ina PAGAaction will have a collateral estoppel effect on all aggrieved statewide employees and bar them from asserting PAGAclaims. These employees will be bound by the judgement that was achieved based on what the PAGArepresentative plaintiffwas able to prove locally and without any input from employees throughout California. It is fundamentally unfair to not allow the PAGA representative plaintiff to investigate and discover the employees whomthe adverse PAGAjudgement will bind. It further defies logic and reason that a PAGA representativeplaintiff is presumedto bring the case on behalfofall current and former employees throughout California, but is precluded from conducting discovery into whether these same employees are subject to Labor Code violations. It is fundamentally unfair for a defendant to prevent statewide discovery of employee contact information, yet also be able to collaterally estop all employees in the State from asserting claims. The Court of Appeal also misapplied class action requirements to a PAGAaction. Demonstrating a uniform statewide policy is applicable to all employeesis a class certification requirement. Yet, the Court below requires that a PAGA representative plaintiff establish a defendant’s uniform practices before being allowed to conduct statewide discovery. There are no class certification procedures ina PAGAaction and this was a misapplication of the law that will only cause confusion in the lower courts regarding the requirements between two very distinct forms of aggregatelitigation. Furthermore, these never-before-seen merits hurdles (prove the plaintiffs individual claim, sit for a deposition, and prove “uniform” violations exist) will be used as a shield by employer defendants to curb necessary pre-certification class action discovery. Employers will use these merits hurdles to throw up roadblocks in class action cases to deny production of class contact information. Once again, employee contact information is routinely discoverable. If the Court of Appeal’s decisionis affirmed, it will create a brand new discovery standard heretofore never- before-seen in California law or the 9th Circuit. Both PAGA andclass representatives will be required to prove their own individual claims on the merits before being permitted to obtain statewide employee contact information — information that is, more often than not, vital to a plaintiff s investigation of the case and, in a class context, achievingcertification. DISCUSSION A. The Court Of Appeal’s Decision In Williams Frustrates The Representative Capacity OfA PAGA Representative Plaintiff— A PAGARepresentative Does Not Have Individual Claims 1. A PAGARepresentative Plaintiff Is A Proxy For The State’s Labor Law Enforcement Agency A PAGArepresentative plaintiff is deputized as a private attorney’s general to investigate and bring an action for civil penalties on behalf of the state against an employerfor violations of the California Labor Code. See Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 360. Labor Code Section 2699(a) provides “...any provision of this code that providesfor a civil penalty to be assessed ad collected by the Labor and Workforce Development Agency (“LWDA”)...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...” Lab. Code § 2699(a)(emphasis added). “‘An 8 employee suing...under the [PAGA] does so as the proxy or agent of the State’s labor law enforcement agencies... In a lawsuit brought under the Act, the employeeplaintiff represents the same legal right and interest as state labor law enforcement agencies — namely,recovery ofcivil penalties that otherwise would have been assessed and collected by the [LWDA].’” Iskanian, supra, 59 Cal.4th at 380 (citing Arias v. Superior Court (2009) 46 Cal.4th 969, 986)(emphasis added). 2. The Court of Appeal Misinterpreted PAGA WhenIt Imposed The Requirement That A PAGA Representative Plaintiff MustFirst Prove His “Individual” And Local Claims Before Being Allowed To Conduct Statewide Discovery The Court below did not give much weight to a PAGArepresentative plaintiff's status as a proxy or agent of the state’s labor law enforcement agencies. The Court ofAppeal held that a PAGAPlaintiff could not conduct statewide discovery until he first had evidence to prove that he has “provide[d] some support for his own,local claims...” Williams v. Superior Court (2015) 236 Cal.App.4th 1151, 1157. “His first task will be to establish he himself was subjected to violations of the Labor Code.” Id. at 1159. Per Williams, before a PAGArepresentative plaintiff can conduct state-wide discovery and fulfill his or her duty to investigate defendant’s state-wide Labor Codeviolations, the plaintiff must 1) prove their “individual claims,” 2) sit for a deposition, and 3) prove “uniform” Labor Codeviolations exist at the Plaintiff's employment location. Jd. at 1159. 9 The Court of Appeal’s conclusion that a PAGA representative plaintiff must first provide proof to support his own claim before being allowed to conduct discovery regarding all aggrieved employees is based upon a faulty premise. In imposing these requirements, the Court below fails to appreciate the nature of a PAGA claim. PAGAclaimsare not individual claims. A PAGAplaintiff does not have “his own”individual claims, as the Court of Appeal suggests. A plaintiff may not and does not bring a PAGA claim as an individual, but “as the proxy or agent of the state’s labor law enforcement agencies.” Arias v. Superior Court, supra, 46 Cal.4th at 986. “The purpose of the PAGAis not to recover damagesorrestitution, but to create a meansof ‘deputizing’citizens as private attorneys generalto enforce the Labor Code.[Citation] ... [T]he relief is in large part ‘for the benefit of the general public rather than the party bringing the action.’” Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 501. A plaintiff asserting a PAGA claim maynotbring the claim simply on his or her own behalf, but must bring it as a representative action and include “other current or former employees.” Machado v. M.A.T. & Sons Landscape, Inc. (E.D.Cal., July 23, 2009, No. 2:09-cv-00459) 2009 U.S. Dist. LEXIS 63414 *6. In Machado, the District Court, using the “‘common acceptation’” of the word “and,” held that the claim must be brought on behalf of the other employees. [bid. “[T]he PAGAstatute does not enable a 10 single aggrieved employee to litigate his or her claims, but requires an aggrieved employee ‘on behalf of herself or himself and other current or former employees’ to enforce violations of the Labor Code by their employers.” Urbino v. Orkin Services of California, Inc. (C.D.Cal. October 5, 2011, No. 2:11-cv-06456) 2011 U.S.Dist. LEXIS 114746 *22; see also Plows v. Rockwell Collins, Inc. (C.D.Cal., August 9, 2011, No. SACV 10- 01936) 812 F.Supp. 2d 1063; Brown v. Ralphs Co., supra, 197 Cal.App.4th 489, By holding that a PAGA plaintiff must first prove his own claims before being allowed to conduct statewide discovery, the Court of Appeal misinterprets the law and role of a PAGArepresentative plaintiff. Sinceit is clear that the PAGA representative plaintiff is required to bring a PAGA claim on behalf of herself or himself and all other current or former employees to enforce the Labor Code, the PAGA representative plaintiff must be allowedto investigate and discover potential Labor Code violations suffered by statewide employees. 3. PAGA Representative Plaintiffs Seek To Fulfill Their Role As Proxies For The State Labor Law Enforcement Agency By Investigating Labor Code Violations Of The Statewide Employees The Plaintiff Is Required To Represent The Court of Appeal further dismisses a PAGA representative plaintiff's special representative role by claiming that early statewide discovery is “‘a classic use of discovery tools to wagelitigation rather than 11 facilitate it.” Williams, supra, 236 Cal.App.4th at 1157 (emphasis added). This language demonstrates that the Court completely misunderstands the purpose of a PAGAaction. The PAGArepresentative plaintiff steps into the shoesofthe deputies or agents of California’s labor law enforcement agency to representall current and former aggrieved employeesin seekingpenalties on behalf of the state. By requesting the contact information ofall aggrieved employees statewide, a PAGArepresentative plaintiff is merely conducting the sameinvestigation as would the LWDA.Because the PAGA requires a representative plaintiff to represent all current and former employees,it is only fair that the representativeplaintiffbe entitled to the contact information of the peopleheis required to represent. This is not “waging litigation,” but enforcing the law on behalf ofthe state government, which does not have the resources to do the same. Yet, the Court of Appeal denies PAGArepresentative plaintiffs the same “free access to all places of labor” as the Labor Commission, his deputies, and agents — effectively, nullifying a statute put in place to allow PAGArepresentative plaintiffs to investigate violations of the Labor Code and alleviate an overburdened governmentofthe responsibility. Importantly, Appellant herein is not seeking “free access.” Appellant is merely seeking Respondent’s employee contact information. That is, the employees which will be subjectedto the collateral estoppel effect of an adverse determination 12 if the employer prevails in the PAGAaction, which is discussed in more detail below. In denying Appellant access to statewide employee contact information, the Court stated, “...nothing in the PAGA suggests a private plaintiff standing in as a proxy for the DLSEis entitled to the same access.” Williams, supra, 236 Cal.App.4th at 1157. However, it is also true that nothing in the PAGA suggests a plaintiff standing in as a proxy for the DLSE has to prove his “individual” claims locally, sit for a deposition, and demonstrate a “uniform”statewide policy before being allowedto investigate his claims on behalf of the aggrieved employees he represents. The PAGA representative Plaintiff is required to represent all current and former employees of the defendant and, therefore, must be allowed access to their contact information. B. The Court of Appeal’s Decision In Williams Undermines The Purpose Of The PAGA, Which Is To Alleviate Overburdened State Government Entities, Vindicate The State’s Interest In Enforcing The California Labor Code, And Deter Employers From Future Labor Code Violations The PAGA wascreated to address the “shortage of government resources to pursue enforcement” ofLabor Code violations. Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59 Cal.4th at 379. “[T]he Legislature’s purpose in enacting the PAGA was to augmentthe limited enforcement capability ofthe Labor and Workforce Development Agency by 13 empowering employees to enforce the Labor Code as representatives of the Agency.” Id. at 383. The PAGAstatute reflects California’s judgment about how bestto enforce its labor laws. Sakkab v. Luxottica Retail N. Am. (9th Cir. 2015) 803 F.3d 425, 439. The PAGAisa critical enforcementtool to protect workers’ rights in the state whenthestate is unable to do so. Iskanian, supra, 59 Cal.4th at 379- 380. The PAGAallowsan aggrieved employee to act as the eyes and ears of the state government and “blow the whistle” on employers for Labor Code violations. The PAGAtreats the PAGA representativeplaintiff as if the plaintiff were “in the shoes” of the state and permits the recovery ofcivil penalties to deter future violations. Arias v. Superior Court, supra, 46 Cal.4th at 986. Even whenstatutes specify civil penalties, there is a shortage of government resources to pursue enforcement. The legislative history with PAGAdiscussed this problemat length. Iskanian, supra, 59 Cal.4th at 379. The sole purpose of the Zskanian rule “is to vindicate the Labor and Workforce Development Agency’s interest in enforcing the Labor Code.”Id. at 388-89. Representative actions under the PAGA “directly enforce the state’s interest in penalizing and deterring employers who violate California’s labor laws.” Jd. at 387. Limiting PAGArights would harm the state’s interests in enforcing the state Labor Code and in obtaining civil penalties under the statute to deter future violations. See Sakkab v. Luxottica 14 Retail N. Am., supra, 803 F.3d at 439. Restricting a PAGA representative plaintiff from investigating statewide Labor Code violations until after the plaintiff has met certain merits based requirements(i.e. provingthe plaintiff's “individual claims, and proving “uniform”violations) limits rights under PAGA and completely frustrates the state’s interest in enforcing the Labor Code and deterring employers from committing future violations. As this Court is no doubt aware, forced arbitration agreements severely limit California’s ability to bring class action claims. See AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333 (FAA preempts state law invalidating class action waivers, abrogating Discover Bank v. Superior Court (2005) 36 Cal.4th 148); DirecTV, Inc. v. Imburgia (2015) 136 S. Ct. 463 (“law of yourstate” is preempted by the FAA). More and more often, employers are forcing employeesto sign arbitration agreements that include class action waivers. Given the widespread useof forced arbitration waivers by employers andthe shortage ofgovernmentresourcesto pursue enforcementofthe Labor Code, PAGAactions are one ofthe only remaining ways California workers’ Labor Code rights are protected. In order to effectively protect workers’ rights, PAGA representative plaintiffs must be afforded the right to investigate and discover statewide claims, including obtain the contact 15 information of statewide employees. This includes being provided with the same discovery rights that the state would have, since the PAGA representative plaintiff brings the PAGAaction on behalfofthestate. Cc. PAGA Actions Are A Type Of Qui Tam Action And A PAGA Representative Plaintiff Should Have Access To Statewide Discovery To Investigate Claims Of Statewide Violations Of The Labor Code PAGA actions are a type of qui tam action. “‘Traditionally, the requirements for enforcement by a citizen in a qui tamaction have been(1) that the statute exacts a penalty; (2) that part of the penalty be paid to the informer; and (3) that, in some way, the informer be authorized to bring suit to recover the penalty.’ [Citation] The PAGA conformsto thesetraditional criteria, except that a portion of the penalty goes, not only to the citizen bringing the suit, but to all employees affected by the Labor Code violation. The government entity on whose behalf the plaintiff files suit is always the real party in interest in the suit.” Iskanian, supra, 59 Cal.4th at 382 (citing Sanders v. Pacific Gas & Elec. Co. (1975) 53 Cal.App.3d 661, 671; In re Marriage ofBiddle (1997) 52 Cal.App.4th 396, 399). Since a PAGArepresentative action is a type ofqui tam action,it only makes sense that a PAGAplaintiff be allowed the opportunity andthe right to conduct discovery for all potential employees affected by the Labor Code violations. 16 D. The Court of Appeal’s Decision In Williams Is Fundamentally Unfair To Aggrieved Employees, As It Denies Aggrieved Employees The Opportunity To Participate In The PAGA Action Before the Court Makes Merits Determinations That Could Bind Them To An Adverse Decision That Will Collaterally Estop Them From Asserting Similar Claims The Court ofAppealheld “bare allegations unsupported by any reason to believe a defendant’s conduct extends statewide furnishes no good cause for statewide discovery.” Williams, supra, 236 Cal.App.4th at 1157. The lower Court erred in applying a “good cause” standard on special interrogatories. Appellant actually has good cause to request statewide employee contact information. The “good cause,” which the lower Court fails to consider, is the collateral estoppel effect for all statewide aggrieved employees represented by the PAGArepresentative plaintiff. The lower Court puts the cart before the horse by requiring the PAGArepresentativeplaintiff to prove his claims before he has been given an opportunity to thoroughly investigate them. Yet, if the PAGArepresentative plaintiff fails to satisfy the Court as to these requirements, the defendant will obtain a judgment that will be used to collaterally estop statewide aggrieved employees from asserting similar claims. By creating these merits based requirements a PAGA representative plaintiff must satisfy before accessing statewide discovery, the lower Court effectively put greater importance on statewide aggrieved employees’ 17 privacy (producing employeecontact information hasbeen held to carry very low intrusion ofprivacy) than the aggrieved employee’s due processrights. See Pioneer Elecs. (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 373. In other words,ifthe Court of Appeal’s decisionis affirmed, these statewide aggrieved employees will be precluded from assisting the PAGA representative plaintiff with his investigation of Labor Code violations, but will be bound by any adverse decision the defendants obtain. 1. PAGA Actions Have A Collateral Estoppel Effect For Aggrieved Employees Represented by PAGAPlaintiffs “Because an aggrieved employee’s action under the [PAGA] functions as a substitute for an action brought by the governmentitself, a judgment in that action binds all those, including nonparty aggrieved employees, who would be boundby a judgmentin an action broughtby the government. [PAGA]authorizes a representative action only for the purpose of seeking statutory penalties for Labor Code violations and an action to recovercivil penalties ‘is fundamentally a law enforcement action designed to protect the public and notto benefit private parties.’” Iskanian, supra, at 381 (citing Arias v. Superior Court, supra, 46 Cal.4th at 986)(emphasis added). The lower Court fails to consider the collateral estoppel effect a PAGAaction will have on the aggrieved employees. This very Court has determined that “judgment in such [a PAGA]action is binding not only on 18 wi ga n be in g! st ee r es ie s a u a ae od e R e the named employee plaintiff but also on government agencies and any aggrieved employee not a party to the proceeding.” Jd. These employees will be bound by any judgment obtained by the PAGA defendant and collaterally estopped from bringing their own PAGAactions. It is fundamentally unfair to have statewide aggrieved employees bound by an adverse judgment in a PAGAaction when they are precluded from having the opportunity to actually participate in the discovery process. The decision below denies statewide aggrieved employees the choice to participate in prosecuting the PAGAaction, whichwill ultimately affect their legal rights. It is also fundamentally unfair to have employees bound byan adverse PAGA judgment and not provide the PAGArepresentative plaintiff the opportunity to discover whether these employees are subject to the same Labor Code violations. The Court of Appealinstilled requirements on a PAGAplaintiff to 1) prove their “individual claims,” 2) sit for a deposition, and 3) prove “uniform” Labor Code violations exist at the Plaintiff's employmentlocation before a PAGAplaintiff could be allowed to conduct statewide discovery. See Williams, supra, 236 Cal.App.4th at 1159. In other words, an entire state of aggrieved employees could be bound be an adverse decision based on the Court’s determination on the merits of the PAGA plaintiff's “individual claims” andhis ability to prove “uniform” violations 19 at his own place of employment without the PAGArepresentative Plaintiff even having the opportunity to interview other employeesin the state about their potential Labor Code violations. 2. Unlike Class Actions, California Law Does Not Contain Notice Requirements For Aggrieved Employees Of PAGA Actions, So Plaintiff’s Investigation May Be The Only Way These Employees Are Notified And Afforded The Opportunity To Participate In The Case In a class action, if the class is not certified, there is no preclusive effect on the putative class members wholater wish to bring another class action case. But if the class is certified, the class members will be given notice of the case andallowed a chanceto participate in the case. Only then will an adverse judgmenthavethe preclusive effect of extinguishing the class member’s rights. See Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1083. A PAGAaction differs from a class action in this regard. With a PAGA action, there is no requirement that notice be provided to the aggrieved employees in order for them to be bound by an adverse judgment. “[A]n employee who, on behalf of himself and other employees, sues an employer under the unfair competition law (Bus. & Prof. Code § 17200 er seq.) for Labor Code violations must satisfy class action requirements, but that those requirements need not be met when an employee’s representative action against an employeris seeking civil penalties under the Labor Code 20 Private Attorneys General Act of2004 (Lab. Code § 2698 et seq.).” See Arias v. Superior Court, supra, 46 Cal.4th at 975. Thus, underthese circumstances, it is even more important for the PAGArepresentative plaintiffto be allowed greater freedom to conduct statewide discovery (at the very least, to obtain the contact information of statewide employees) because notice is not required to go out to these employees before they are bound by an adverse decision and precluded from recovering PAGApenalties. Becauseofthe collateral estoppel effect a PAGA action would have on the aggrieved employees who are presumed represented by a PAGA representative plaintiff, it is fundamentally fair for these employees to receive notice advising them of the case and allowing them the opportunity to participate in the discovery and proof of the Labor Code violations. See Belaire-WestLandscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 562. Such notice would be provided when the PAGA representative plaintiffrequests access to aggrieved employees’ contact information via the Belaire-West notice procedure. If the Court of Appeal’s added merits restrictions to PAGArepresentative plaintiffs seeking statewide discovery is allowed to stand, aggrieved employees will not be afforded an opportunity to become involved with a PAGAaction that could benefit them before the Court makes merits based decisions that would ultimately affect statewide 21 employees’rights. E. The Court Of Appeal Mistakenly Applies A Class Action Requirement That Plaintiff Must Demonstrate A Uniform Statewide Policy. The lower Court imposed several requirements of a PAGA representative plaintiff before he could be allowed to conduct statewide discovery - one ofwhich wasthat the plaintiff prove “uniform” Labor Code violations exist at the plaintiffs employment location. Williams, supra, 236 Cal.App.4th at 1159. Since the PAGArepresentative plaintiff had not shown that Marshalls had a “uniform statewide policy,” the Court determined it was not reasonable to allow him to conduct statewide discovery. Jd. at 1158. In fact, the Court stated that plaintiffs “second task would be to establish Marshall’s employment practices are uniform throughout. the company, which might be accomplished by reference to a policy manual or perhaps a deposition of a corporate officer.” Jd. at 1159. Showing that defendant has a uniform statewide policy is a requirement found in California wage and hour class actions, not PAGA representative actions. Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1033. A plaintiff in a wage and hour class action must demonstrate uniformity to achieve class certification. Duran v. U.S. Bank National Assn. (2014) 59 Cal.4th 1, 37. However, this Court specifically rejected the argument that PAGA actions must fulfill class action 22 requirements. See Arias v. Superior Court, supra, 46 Cal.4th at 983-984. There are no class certification requirements or procedures ina PAGA claim. A PAGArepresentativeplaintiff need only prove by a preponderance of the evidence that Labor Code violations exist — not that the Labor Code violations were caused by any uniform policy and/or practice. While these Labor Codeviolations could be proven by a uniform policy and/orpractice, the PAGA does not require a showing of uniformity. There certainly is no requirement to show the Labor Code violations were caused by a uniform policy and/or practice before conducting statewide discovery. The Court of Appeal’s imposition of a uniformity requirement — a class action requirement — in a PAGAactionis a misinterpretation of the law that conflicts with this Court’s ruling that class action requirements do not apply to PAGAactions. For instance, as is the case with Defendant employer herein, some employers have multiple locations across the state of California. In a class action case, a plaintiff may have to prove uniform practices and/orpolicies that affect all the employees in the class and/or sub-class. This is the uniformity requirement. Not so for a PAGAaction. Weare in no way suggesting a PAGArepresentative plaintiffdoes not have to prove Labor Code violations for the aggrieved employees. We are suggesting the Court of Appeal misstated the law by requiring the PAGA Labor Code violations to be “uniform.” Uniformity is a class action 23 requirement that has no basis in a PAGAaction Thereare potentially other waysto prove the aggrieved employees suffered Labor Code violations other than through “uniform”practices and/or policies. For example, an employer with multiple locations across the State may have Labor Code violationsat only some of the locations. Meaning, they may not be “uniform” in the classical sense used in class actionlitigation. F. Employee Contact Information Is Routinely Discoverable — Regardless OfWhether The Matter Is A PAGA Action Or A Class Action Beyond misunderstanding the purpose of the PAGAandthe role of a PAGArepresentative plaintiff, the Court of Appeal misapplies the law with respect to discovery of employee contact information.It is not the type of action that should determine discovery — but the type of information sought. Respondent’s Answer Brief relies on the differences between PAGA and class actions(i.e. the type of action) to redirect the Court’s attention away from the type of information sought. Employee contact information is routinely discoverable and carries little threat of an intrusion into the employee’s privacy. Pioneer Elecs. (USA), Inc. v. Superior Court, supra, 40 Cal.4th at 373 (production of employee contact information “involves no revelation of personal or business secrets, intimate activities, or similar private information, and threatens no undue intrusion into one’s personal life.”). There are no requirements that a case must be a class action in order 24 to obtain this information. There is no distinction between discovery of current and former employees, as requested in a class action or in a representative PAGA action — the same information is requested and the same privacy rights are implicated. However, the Court of Appeal ignores established law allowing discovery of employee contact information and holds that an employee’s right to privacy outweighs the plaintiff's need for the contact information. Williams, supra, 236 Cal.App.4th at 1158-1159. Essentially, the Court of Appeal assumes aggrieved employees (who otherwise will have no knowledge of the PAGA lawsuit that will affect their legal rights) will not want to be involved in the PAGAaction that may ultimately penalize their employer for violations of the Labor Code and could potentially improve their working conditions. In fact, unlike a class action plaintiff who has to achievecertification before representing the class, a PAGA representative plaintiff already represents aggrieved current and former employees as soon as he receives authorization from the LWDAto sue for PAGApenalties. Iskanian, supra, 59 Cal.4th at 360; Lab. Code § 2699.3. It logically follows that a PAGA representative plaintiff should have access to the contact information of the aggrieved employees he already represents (which defendant certainly has access to) who may have knowledge of the employer’s Labor Code 25 violations. Yet, the Court below requires a PAGA representative plaintiff to proffer evidence to support that his “individual” claims extend statewide without allowing the plaintiff access to the very discovery that would, in fact, prove the statewide claims. This is a Catch-22. Essentially, the PAGA representative plaintiff is told to prove his claims before conducting the very discovery that would allow himto provehis claims.It is a circular argument that will only cause confusion, resulting in further congesting the courts’ dockets with discovery battles and contradictory decisions in lower courts. G. The Requirements Imposed In Williams Before A PAGAPlaintiff Can Seek Statewide Discovery Will Be Used To Deny Class Plaintiff's Class-Wide Pre-Certification Discovery Although Williams is a PAGA action, the Court of Appeal’s restrictions and merits hurdles imposed on the PAGArepresentative plaintiff before he can conduct state-wide discovery — if allowed to stand - will not be limited to PAGA cases or employee contact information discovery. Rather, these restrictions will be used by putative class defendants as a shield to curb all pre-certification class-wide discovery. The Court of Appeal reasons, “...bare allegations unsupported by any reason to believe a defendant’s conduct extends statewide furnishes no good causefor statewide discovery.” Williams v. Superior Court, supra, 236 Cal.App.4th at 1157. With such restrictions on statewide discovery, putative class plaintiffs can expect a fight 26 for all class-wide discovery they seek, which is necessary to achieve class certification. Wageand hourclass actions are not limited to a defendant’s policies. For instance, a company’s practice or implementation of certain policies can be used to achieve certification. However, in order to understand a company’s practice or the implementation of its policies, a putative class plaintiff would need to interview putative class members, making obtaining the class contact information vital to achieving certification. Declarations from putative class members are routinely filed in support of class certification. However, the restrictions imposed by the lower Court’s decision will be used to impedea putative classplaintiff from obtaining this vital information pre-certification. The lower Court’s decision also directly conflicts with Belaire-West Landscape and its progeny. Belaire-West Landscape specifically addressed employee privacy in pre-certification discovery. The Belaire-West Court determined employee privacy was considered sufficiently protected by sending out notices to the employees, informing them thattheplaintiffsought their personal contact information and that the employees could opt-out of sharing their information with the plaintiff. Belaire-West Landscape, supra, 149 Cal.App.4th at 562. The Belaire-West notice process has allowed class action lawsuits to 27 proceed with pre-certification class-wide discovery, while protecting the privacy interests of putative class members. However, the Court of Appeal presupposes aggrieved employees who maydirectly benefit from a PAGA action, whether by monetary recovery or by a change in their employer’s practices, will not want to be involved in a PAGAaction. To the contrary, Belaire-West Landscape states that “employees [may] reasonably be expected to want their information disclosed to a class action plaintiff who may ultimately recover for them unpaid wages that they are owed.” See Belaire-West, supra, 149 Cal.App.4th at 561. Similarly, in PAGA actions, aggrieved employees could be reasonably expected to wanttheir information disclosed to a PAGArepresentative plaintiff who may ultimately recover PAGA penalties, change their employer’s practices, and improve their working conditions. There are serious concerns with a decision limiting a PAGAplaintiff's ability to obtain the contact information of other employees. Such a decision may be used as a shield by defendants in wage and hourclass actions to avoid producing contact information of putative class members. In fact, according to our experience and other members of our organization, after the Williams decision was published by the Court ofAppeals and before this court granted review — class action defendants in wage and hour class actions jumped at the opportunity to use this decision as shield, justifying not producing class 28 membercontact information in class action cases. If the lower Court’s newly imposed standard for obtaining statewide discovery (notably, employee contact information) is affirmed, it will set an even more onerous burden on class action plaintiffs than the comparative pre-certification discovery standard in the Ninth Circuit. In the Ninth Circuit, before a plaintiff can obtain class-wide discovery — particularly in the form of class contact information — the plaintiffmust make “a primafacie showing that the class action requirements of [FRCP] 23 can besatisfied or that discovery is likely to produce substantiation of the class allegations.” See Mantolete v. Bolger (9th Cir. 1985) 767 F.2d 1416, 1427. Here, under the Court of Appeal’s onerous requirements that a plaintiff first 1) prove their “individual claims,” 2) sit for a deposition, and 3) prove “uniform” Labor Code violations exist at the Plaintiff's employment location, before being allowed to conduct statewide discovery,it is certain that these requirements will be imposed on a putativeclass plaintiff seeking pre-certification class discovery. Cases like Belaire-West Landscape andits progeny will gather dust. In other words, putative class defendants will use these requirements to circumvent complying with Belaire-West when putative class plaintiffs make pre-certification requests for class contact information. 29 CONCLUSION This Court should reverse the lower Court’s decision. The lower Court’s imposition of the requirements that a plaintiff must 1) prove their “individual claims,” 2) sit for a deposition, and 3) prove “uniform” Labor Code violations exist at the Plaintiffs employment location before being allowed to conduct statewide discovery frustrates the representative capacity of a PAGArepresentative plaintiff. PAGA representative plaintiffs are proxies for the state’s labor law enforcement agencies and cannotbring their ownclaims. The Court of Appeals decision further undermines the purpose ofthe PAGAtoalleviate overburdenedstate labor law enforcement agencies, enforce the law, and deter employers from future violations of the Labor Code. Perhaps of most importance, these requirements hold dangerous due process implications for statewide aggrieved employees who maybeheld to an adverse judgmentandcollaterally estopped from seeking PAGApenalties. Statewide employees, whether they are allowed to participate in the PAGA action or not, will be bound by the judgment obtained in the PAGAaction. Theserestrictions before conducting statewide discovery are to the legal detriment of the statewide aggrieved employees the PAGArepresentative plaintiff represents. The Court of Appeal misapplied class action uniformity requirements 30 to a PAGAaction, requiring a PAGAplaintiff to prove “statewide uniform policies” before potentially moving forward with statewide discovery. This is a misreading of the law. Uniform policies are not required for a defendant to be liable for PAGA penalties. This misapplication of the law will only muddy the water, as putative class defendants will use this rule to curb putative class plaintiffs’ pre-certification requests for class contact information, frustrating wage and hour class action discovery and further clogging court dockets. Ultimately, the lower Court’s imposition of these requirements frustrates established law that makes employee contact information routinely discoverable. Because the lower Court’s decision is so contradictory of established law, this Court should, respectfully, reverse the Court ofAppeal’s decision. 31 CERTIFICATE OF COMPLIANCE In accordancewith California Rules of Court 8.520(c)(1), Counsel for Amicus Curiae, Consumer Attorneys of California, hereby certifies that this Amicusbrief in support of Appellant is proportionately spaced, uses Times New Roman 13-point typeface and contains 6,814 words, including footnotes, but excluding the Table ofContents, Table ofAuthorities, and this Certificate, as determined by ourfirm’s word processing system usedto preparethisbrief. Date: May 6, 2016 Respectfully submitted, THE TURLEY LAW FIRM, APLC William Turley/Esq. David Mara, Esq. Jamie Serb, Esq. Attorneys for Amicus Curiae Consumer Attorneys of California 32 10 1] 12 16 17 18 19 20 26 27 28 Case Name: Williams v. Superior Court of Los Angeles (Marshalls of California) Court: Supreme Court of California Case Number: $227228 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO I am employed in the County of: San Diego, State of California. I am overthe age of 18 and not a party to the within action; my business addressis: 7428 Trade Street San Diego, CA 92121 On May 6, 2016, I served the foregoing document(s) described as: APPLICATION BY AMICUS CURIAE CONSUMER ATTORNEYS OF CALIFORNIA FOR LEAVE TO FILE AMICUS CURIAE BRIEF IN SUPPORT OF APPELLANT Oninterested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: Supreme Court of California A.(SBN 270317) Office of the Clerk of the Clerk Drexler (SBN 119119) 11: Stan Karas (SBN 222402)350 McAllister Street, Suite 1295 : ; Liana Carter (SBN 201974) San Francisco, CA 94102-4797 Melissa Grant (SBN 205633 Via FedEx Overnight Ryan Wu (SBN 222323) Capstone Law APC, 1840 Century Park East, Suite 450 Los Angeles, CA 90067 Telephone: (310) 556-4811 Facsimile: (310) 943-0396 Attorneysfor Michael Williams Via United States Mail Hon. William F. Highberger: Respondent Robert G.Cite515390) Los Angeles Superiour Court oshuaJ. Cliffe 3 £00 8 Commonwealth Ave Emily E. O’Connor (SBN 279400) scott D. Helsinger (SBN 287178) Los Angeles, CA 90005 Littler Mendelson,P.C. Via United States Mail 650 California Street, 20" Floor San Francisco, CA 94108-2693 Telephone: (415) 433-1940 Attorneysfor Defendant, Marshalls ofCA, LLC Via United States Mail Court of Appeal of the State of California Frederick Bennett d Appellate District. Divis; Superior Court of Los Angeles CountySecond Appellate District, Division One 111 North Hill Street, Room 546Ronald Reagan State Building Los Angeles, CA 90012 300 S. Spring Street Superior Court ofLos Angeles County: 2™ Floor, North Tower Respondent Los Angeles, CA 90013 Via United States Mail Via United States Mail u o b o 10 ll 12 14 15 16 17 18 19 Justin F. Marquez Rastegar Law Group, APC 22760 Hawthorne Blvd, Ste 200 Torrance, CA 90505 Via United States Mail Laura Luo-Yao Ho Goldstein, Borgen, Dardarian & Ho 300 Lakeside Dr # 1000 Oakland, CA 94612 Via United States Mail Lauren Teukolsky Travers & Voorhees 128N Fair Oaks Ave, # 204 Pasadena, CA 91103 Via United States Mail California Rural Legal Assistance Foundation: Pub/Depublication Requestor Della Barnett/CRLAFLitigation Director 2210 “K” Street Sacramento, CA 95816 Via United States Mail Bassil A. Hamideh The Hamideh Firm, P.C. 1801 Century Park E Ste 2400 Los Angeles, CA 90067 Via United States Mail Matt Craig Bailey Pollard | Bailey 9701 Wilshire Blvd, 10th Floor Beverly Hills, CA 90212 Via United States Mail Kerry McCoyFriedrichs Seyfarth Shaw LLP 560 Mission St Ste 3100 San Francisco, CA 94105 Via United States Mail Paul Grossman Paul Hastings et al LLP 515 S Flower St, 25th Floor Los Angeles, CA 90071-2228 Via United States Mail Kyle R. Nordrehaug Blumenthal & Nordrehaug 2255 Calle Clara La Jolla, CA 92037 Via United States Mail Mary-Christine Sungaila Martin Max Ellison 600 Anton Boulevard, Suite 700 Costa Mesa , CA 92626 Via United States Mail [XX] (] (BY UNITED STATES MAIL) (All Other Parties and Attorneys) On May 6, 2016, I enclosed the documents in a sealed envelope or package addressed to the personsat the addresses named above and deposited the sealed envelope with the United States Postal Service, with the postage fully prepaid. (BY FAX) In addition to service by mail as set forth above, a copy of said document(s) were also delivered by facsimile transmission to the addresses named above. Noerror wasreported by the fax machinethat I used. (BY E-MAIL) On, I caused the documents to be sent to the persons at the electronid notification addresses of the parties named above. I didnot receive, within a reasonable timeafter the transmission, any electronic messageor otherindication that the transmission was unsuccessful. (BY PERSONAL SERVICE)On,in addition to service methods listed above(if any), the above documents weredeliveredto the above recipients via personal delivery. 34 10 1] 12 14 15 16 17 18 19 20 25 26 27 28 [XX] (BY FEDEX OVERNIGHT DELIVERY) (As to Supreme Court of California Only On May 6, 2016, I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses named above. ] placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. [XX] (DECLARATION)I declare under penalty of perjury under the laws of the State of California that the aboveis true and correct. Dated: May 6, 2016