WILLIAMS v. S.C. (MARSHALLS OF CA)Petitioner’s Petition for ReviewCal.Jun 25, 2015 N §227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,an individual, Petitioner, Vv. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. MARSHALLSOF CA, LLC, Real Party in Interest. SUPREME COURT Fife oO JUN 25 2015 Frank &. Metsuire Clerk AFTER DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION ONE CASE B259967 FROM THE SUPERIOR COURT, COUNTY OF LOS ANGELES, CASE NO. BC503806, ASSIGNED FOR ALL PURPOSES TO JUDGE WILLIAM F. HIGHBERGER, DEPARTMENT322 Deputy PETITION FOR REVIEW CAPSTONE LAW APC GLENN A. DANAS (SBN 270317) ROBERT DREXLER (SBN 119119) LIANA CARTER(SBN 201974) STAN KARAS(SBN 222402) 1840 CENTURY PARK EAST, SUITE 450 LOS ANGELES, CA 90067 TELEPHONE: (310) 556-4811 FACSIMILE: (310) 943-0396 GLENN.DANAS@CAPSTONELAWYERS.COM ROBERT.DREXLER@CAPSTONELAWYERS.COM LIANA.CARTER@CAPSTONELAWYERS.COM STAN.KARAS@CAPSTONELAWYERS.COM Attorneysfor Petitioner MICHAEL WILLIAMS IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,an individual, Petitioner, Vv. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Respondent. MARSHALLSOF CA, LLC, Real Party in Interest. AFTER DECISION BY THE COURT OF APPEAL, SECOND APPELLATE DISTRICT, DIVISION ONE , CASE B259967 FROM THE SUPERIOR COURT, COUNTY OF LOS ANGELES, CASE NO. BC503806, ASSIGNED FOR ALL PURPOSES TO JUDGE WILLIAM F. HIGHBERGER, DEPARTMENT322 PETITION FORREVIEW CAPSTONE LAWAPC GLENN A. DANAS(SBN 270317) ROBERT DREXLER (SBN 119119) LIANA CARTER(SBN 201974) STAN KARAS(SBN 222402) 1840 CENTURY PARK EAST,SUITE 450 Los ANGELES, CA 90067 TELEPHONE: (310) 556-4811 FACSIMILE: (310) 943-0396 GLENN.DANAS@CAPSTONELAWYERS.COM ROBERT.DREXLER@CAPSTONELAWYERS.COM LIANA.CARTER@CAPSTONELAWYERS.COM STAN.KARAS@CAPSTONELAWYERS.COM Attorneysfor Petitioner MICHAEL WILLIAMS TABLE OF CONTENTS TABLE OF AUTHORITIES|... ce cccecccescssssesesesecesecsescesssseacssssacaessessessssneasesees ii ISSUES PRESENTED FOR REVIEW .00.0....ccccccccceccesessesccsscescescssesseeeseesesssaeesseceteaes 1 INTRODUCTIONooo.cceceeceeseeseessssessesesesscsassecssecesecsssecssssesaccesesacsuesaesaceseees ] STATEMENTOF THE CASE .00....ecccececsescesssssessesscscseecsscsesssasevaceeravssesesasseeaeesees 7 ARGUMENT100eceecceeseseeceseeseseseeesecsssesacscsesscscesssesesssecssssscaesasaenssesesaacsaseneaeeacs 10 I. THE COURT OF APPEAL RULING RESTRICTING DISCOVERY FOR PAGA PLAINTIFFS REQUIRES REVIEW BECAUSE IT CONTRAVENES CALIFORNIA AUTHORITY FINDING ROUTINE CONTACT INFORMATION OF POTENTIAL PERCIPIENT WITNESSES TO BE DISCOVERABLE..00..o.ecceccececceseeeeeee 10 . A. The Court OfAppeal Failed To Apply This Court’s Pioneer Decision AndIts Progeny, Which Establish That Potential Witnesses’ Basic Contact- ‘Information Is Relevant And Falls Within The Proper Scope Of Discovery In Aggregate Litigation ........0..0..0000.00.. 10 B. The Court of Appeal’s Ruling Contravenes The Discovery Act And Adds A “Good Cause” Merits Hurdle That Will Frustrate Prosecution OfPAGA Actions Statewide ............ccccccccccccsscesscsssesseeecessesseesetensesensessseesssceeees 14 C. The Court Of Appeal’s Decision Engrafts A Commonality Requirement Onto PAGA Actions That Is Inconsistent With This Court’s Decision In AVIS ooo cecccecccececcseceseceeeesseeseessessesssssssessesaseasesensccsusesstsavsuevarensseatenseessess 20 IT. THE COURT OF APPEAL’S RULING REQUIRES REVIEW BECAUSEIT APPLIED THE LANTZ TEST TO EVALUATE THE NON-PARTY AGGRIEVED EMPLOYEES PRIVACY RIGHTS RATHER THE HILL TEST, ADOPTED BY THIS COURTIN PIONEER AND APPLIED NUMEROUSTIMESSINCE, CREATING A DIRECT SPLIT OF AUTHORITY.0.0...cccccccccccsccecsscsssstecsecercsstecseeseceeens 21 il. ©THE COURT OF APPEAL’S RULING CONFLICTS WITH ISKANIANAND ARIAS BECAUSEIT UNDERMINES THE PUBLIC POLICIES PAGA WAS ENACTED TO PROTECT AND EFFECTIVELY NULLIFIES THIS COURT’S DECISIONS INTENDING PAGA TO BE A POWERFUL LAW ENFORCEMENT TOOL... ececceccccctseseeesseecseeecsecsessessesesensssssessessesaesacsstsesecsenessssesscuacreseeseaes 25 A. The Court OfAppeal’s Ruling Is Contrary To PAGA’s Regulatory Purpose As Expressed In Tskanian ard Avis 00... c.ccccccccccctscscsescesesscescsssesescsssevatsasssteasessesaceaes 25 B. The Court ofAppeal’s Ruling Cannot Be Reconciled With The Broad Powers Of The California Labor Law Enforcement Agencies In Whose Place The PAGAPlaintiff Litigates....00..0 0c...seeteeeesenetees 27 CONCLUSION.00eee cecceseesseessesseeseeeseccsessesascssesssecasscssesacessessseaesasesstessseecssenesecs 29 CERTIFICATE OF WORD COUNT....0....ccccccecccccsecccescesececcessessestssessssseeseesesessteess BO it TABLE OF AUTHORITIES STATE CASES Arias v. Super. Ct. (2009) 46 Cal.4th 969oo.cccceesesteeneees passim Atari, Inc. v. Super. Ct. (1985) 166 Cal.App.3d 867 ..........ccccceseeceeeees 20 Belaire-West Landscape Inc. v. Superior Court (Rodriguez) (2007) 149 Cal.App.4th 554 oo... cccccceccsecesecseessscesseesssvecseees passim Brown y. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489.0... 26 Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216........ 16 Crab Addison, Inc. v. Superior Court (Martinez) (2008) 169 CalApp.4th 958 0... cccccesescescesecsssssseeesssesscscaseaveee passim Craib v. Bulmash (1989) 49 Cal.3d 475 .o..cccccccccccscccsssecceesssscesceseseessseeees 28 Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4th 1101.00.00...Leeeeeees 17 Hill y. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1............. passim Iskanian v. CLS Transportation Los Angeles LLC ce (2014) 59 Cal4th 348ooocccccceccssssecseccssesesecesssesessesstsseeees passim Laniz v. Superior Court (1994) 28 Cal.App.4th 1839.00...passim Milan v. Restaurant Enterprises Group, Inc. (1993) 14 CalApp.4th 477 ooo...ccccccccccccecsesscsscesceseeeseeeessecsssstsvseseeees wee 27 Pioneer Electronics (USA), Inc. v. Superior Court (Olmstead) (2007) 40 Cal4th 360.0000... ccccccccccccsescssessesssecsreceessesecsstatseveees passim Planned Parenthood Golden Gatev. Super. Ct: (2000) 83 CalApp.4th 347 oo... cccccccscccceessesececeaeescascstesevstseseesaes 24 Puerto v. Superior Court (Wild Oats Market, Inc.) (2008) 158 Cal-App.4th 1242 ooo...ccceccccscceceesssseecsertaneeees passim Tien v. Super. Ct. (2006) 139 Cal.App.4th 528 0.0... ceesseeceeeeeeeeeeees 3 FEDERAL CASES Jeske v. Maxim Healthcare Servs., Inc., 2012 U.S. Dist. LEXIS 2963 (E.D. Cal. Jan. 10, 2012)... 2) il STATE STATUTES Cal. Civ. Proc. Code § 166.1 oo... ccccccessssccsecsceessssesacstseescesesecceceeses 9 Cal. Civ. Proc. Code §§ 2016-2036 (Civ. Disc. Act of 1986)............ passim Cal. Lab. Code § 204.000. ccccccccscesscesecssscssssscsecsesssesecsecssssvassasessaseseeses 7 Cal. Lab. Code § 226(a) .......cccceccccecccsccssessececcescsecssessesstsscssssssesssseceeseeess 7 Cal. Lab. Code § 226.7..0.0.cccccccccsccessssscsssssssssesevssccseesssesesssatsesseessseccaseeses 7 Cal. Lab. Code § 512(a) oo... ceccccccccccsesssessssessssesescesesecaesaeesavacsusssesssesseses 7 Cal. Lab. Code §§ 2698 ef seq. (Priv. Atty’s Gen. Act (PAGA))....... passim Cal. Lab. Code § 2800.00.00... cccccccccccccscesesssssessseccscsscssesesasasssseassacsecsessess 7 Cal. Lab. Code § 2802.00.00... cceccccccsessscscesessessssssessssecsvsevsesestausvsssseacseeesees 7 iv ISSUES PRESENTED FOR REVIEW 1, In a representative Private Attorneys General Act of 2004 (“PAGA”) action,is the plaintiff who represents other “aggrieved employees” throughout California under Labor Codesection 2699(a) entitled to basic discovery of the names and contact information of those other “aggrieved employees, ” when contact information for potential percipient witnessesis routinely and properly held discoverable under California case law and the California Civil Discovery Act (“Discovery Act”), including in class actions and other aggregate litigation? 2. Is the proper test for evaluating claims of invasion of privacy under the California Constitution the analytical frameworkset forth in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 and applied in Pioneer Electronics (USA),Inc. v. Superior Court (2007) 40 Cal.4th360, in which a court determines whether a claimant has a protectable privacy interest and, if so, balances that privacy interest against competing or countervailing interests, or the test articulated in Lantz v. Superior Court (1994) 28 Cal.App.4th 1839 and applied by the Court of Appeal below, which requires the party seeking discovery to demonstrate a “compelling need”thatis “so strong as to outweigh the privacy right”? 3. May California courts restrict or preclude discovery of nonparty aggrieved employees’ contact information despite the fact that this contact informationis critical to prosecuting a PAGAcase on behalf of similarly aggrieved employees; PAGAis a primary methodfor ensuring compliance with California’s Labor Code; and the California labor law enforcement agencies in whoseplace the PAGAplaintiff litigates would be entitled to such information? INTRODUCTION The scope of discovery afforded PAGAplaintiffs raises an important question of law and one that must be reconciled with the competing rulings of other appellate courts that, contrary to the Court of Appeal below, have found that employees pursuing aggregatelitigation, includingclassactions, are entitled to non-intrusive contact informationfor similarly situated employees whoare potential percipient witnesses to the wage and hour violations at issue. The Court of Appeal ignored and departed sharply from this clear line of authority! when it denied nearly all of the discovery sought by Petitioner Michael Williams, who had moved to compel production of the identities and contact information ofReal Party in Interest Marshalls of CA, LLC’s (“Marshalls”) current and former employees throughout California in order to prosecute his PAGAactionalleging wage and hour violations based on statewide policies and practices. Yetthere is no basis to afford a PAGAplaintiff any less discovery than a plaintiff in a putative class action. Williams is simply seekingbasic contact information relevant to investigating his PAGAaction and discoverable underthe Discovery Act, under which “relevance”is the standard for discoverable information. Williams’ operative complaintalleges statewide Labor Code violations based on systematic, company-widepolicies for meal and rest breaks.” In particular, Williams contends that Marshalls maintains facially unlawful meal break andrest break policies that apply equally to non- exempt employeesin all of its California stores.? Yet the Court of Appeal granted /ess than onepercent of the employee contact information Williams sought, limiting Williamsto the contact information for employeesat just one store location out of Marshalls’ 129 locations statewide. The court based its ruling on two grounds. First, it foundthat discovery of the contact ' This line of authority begins with Pioneerandis followed by Puerto v. Superior Court (2008) 158 Cal.App.4th 1242; Crab Addison, Inc. vy. Superior Court (2008) 169 Cal.App.4th 958; and Belaire-West Landscape Inc. v. Superior Court (2007) 149 Cal.App.4th 554, * (Petitioner’ s Appendix [“PA”] 14 ; PA 15 .) > (PA 252:13-28.) information was premature dueto a lack of “good cause.” Second, the court determined that employeeprivacyinterests outweigh the need for disclosure at this time. The court foundthat, before being allowedaccess to Marshalls’ other employees, Williams would be requiredto (i) establish that he personally suffered Labor Code violations during a deposition; (11) demonstrate personal knowledge of Marshalls’ wage and hourpracticesat other stores rather than just a goodfaith basis for his belief that Marshalls’ corporate break policy was implementedstatewide; and(iii) establish that Marshalls’ employmentpractices are in fact uniform throughoutthestate. By imposingthese hurdles, the Court of Appeal’s ruling underminesthe policies furthered by this Court’s rulingin Pioneer and numerous Court of Appeal decisionsthat followed Pioneer, which permit discovery of employees’ namesand contact information without imposing such threshold burdensto effective investigation. By imposingthese hurdles, the Court of Appeal also underminedthe “very broad” nature of discovery under the Discovery Act, central to which has been the identification of potential witnesses. Asan initial matter, neither the applicable provisionsofthe Discovery Act nor the case law requires any additional “good cause” for Williams’ discovery request, as the provisionrelied upon by the Court of Appeal applies only to inspection demandsnotat issue here. However, even if a good cause requirementapplied here, there are multiple bases upon which it would besatisfied. Onebasis is the asymmetry of information and unfair litigation advantage that would result from allowing employers to maintain exclusive and unfettered access to employees who are potential percipient witnesses. Additionally, good cause exists based on the collateral estoppel effect that this PAGA action would have as against * (Tien v. Super. Ct. (2006) 139 Cal.App.4th 528, 535.) the non-party aggrieved employees Williams represents, yet cannot contact. Indeed, this Court in Pioneer andthe courts of appeal in numerous cases following Pioneer have foundpotential percipient witnesses’ contact information to be proper subjects of discovery under CCP §2017.010 and the unfairness that would result from allowing the employer exclusive access to these employees weresufficient to compel production of this contact information. The Court ofAppeal thus misapplied any applicable “good cause”standardto preclude disclosure ofrelevant information at the outset of a PAGAcase. Moreover, by requiring Williams to demonstrate that Marshalls’ employmentpractices are uniform throughoutits California stores, the Court ofAppeal hasessentially engrafted a class action “commonality” requirement onto all representative PAGAactions, despite this Court’s ruling in Arias v. Super. Ct. (2009) 46 Cal.4th 969 that a PAGAaction need notsatisfy class certification standards. Thus, the Court of Appeal’s decision merits review to determine whetherthe principles underlying Pioneer and the numerouscases following Pioneer routinely allowing statewide discovery of potential percipient witness contact information apply to PAGAactions. Plenary reviewis also necessary to settle the direct split of authority engendered by the Court of Appeal’sreliance on the “compelling need”test from Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, rather than the Hill test adopted by this Court in Pioneer and subsequently applied by numerousother courts of appeal, under which a court determines whether a privacy claimanthasa protectable privacy interest andif so, balances such privacy rights against competing or countervailing interests. This Court in Hill rejected the requirement of a “compelling need”or “compelling interest” for scenarioslike the present case where relatively nonsensitive information such as basic contact informationis all thatis at issue. By applying the heightened Lanziztest to non-sensitive, basic employee contact information, the Court of Appeal has createda stark divide among the California courts. Finally, plenary review is necessary to prevent a ruling that, if not corrected, will effectively undermine PAGA’scritical role in enforcing labor laws. PAGA serves as one of the “primary mechanismsfor enforcing __ the Labor Code,”Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4th 348, 383, by allowing an aggrieved employeeacting as a private attorney general to collectcivil penalties from employers whoviolate the Labor Code, with seventy-five percentofthe penalty going to the Labor and Workforce Development Agency (“LWDA”) for enforcement of labor law and education. PAGAcreated a private right of action to collectcivil penalties that-would be significant enough to deter violations at a time when there was a shortage of governmentresources to pursue enforcement. This powerful private enforcement tool—the importanceofwhich has been reaffirmed in twosignificant opinions by this Court—cannotbe rendered toothless by the Court of Appeal’s imposition ofrestrictions on a PAGA plaintiff's right to conduct civil discovery that are greater than those imposed ona class action plaintiff bringing a wage and hour suit for private damages. The Court of Appeal’s decision also cannotbe reconciled with the broad powersofthe California labor law enforcement agencies in whose stead the PAGAplaintiff litigates. If a PAGAactionis truly to function “as a substitute for an action brought by the governmentitself,” and a PAGA plaintiff “represents the same legal right and interest as state labor law enforcementagencies,” as this Court states, a PAGAplaintiff must be permitted discovery of the routine employee contact information that would be the essential focus of any state agency investigation. (Iskanian, 59 Cal.4th at pp.380, 381; id. at p.388 [noting that a PAGAplaintiff'srole as proxy for the state is “not merely semantic” and mustserve a “substantive” function.}.) Given the purpose of PAGA,the public rights involved, and the interest of the state, PAGAplaintiffs should be entitled to even greater discovery rights than class action plaintiffs. The Court of Appeal’s decision below provides this Court with a critical opportunity to review whethera ruling severely restricting a PAGAplaintiff’s discovery rights runs counter to the broad investigatory powersofthe state labor law agency in whose shoes the PAGAplaintiff stands. STATEMENT OF THE CASE Williams was employed as a non-exempt, hourly-paid employee from approximately 2012 to 2013 at Marshalls’ Costa Mesa, California location. (PA 9 18].) Williams filed this action on March 22, 2013, and filed the operative Second Amended Complaint (“SAC”) on November19, 2013, alleging one causeof action under PAGA. (See generally PA 6-19.) This PAGAclaim is for civil penalties for violations of Labor Code sections 226.7 and 512(a) for the failure to provide Williams andother aggrieved employees with mealorrest periods or compensationin lieu thereof; section 226(a)for failure to provide accurate wage statements to Williams and other aggrieved employees: sections 2800 and 2802 for failure to reimburse Williams andother aggrieved employeesforall necessary business-related expenses; and section 204 forfailure to pay all earned wages owed to Williams and other aggrieved employees during employment. (PA 12 36].) . The SACalleged statewide Labor Codeviolations based on systematic, company-wide policies. (See, e.g., PA 14  [“Defendants implemented a systematic, company-wide policy to erase and/or withdraw meal period premiumsfrom the time and/or payroll records when Plaintiff and aggrieved employees’ records reflected that they did not receive compliant meal periods.]; PA 15  [“Defendants did not schedule sufficient employees to handle the volume of customertransactions and... there were times that Plaintiff and aggrieved employees had to continue working withouta rest period,” yet “Defendants implemented a systematic, company-wide policy to not pay rest period premiums”]; PA 17  [Marshalls had “policy and practice” of not reimbursing employees regarding necessary business-related expenses, such asfortravel to banks to obtain cash, changeordeliver bank deposits].) During discovery, Williams sought production of the names and contact information of Marshalls’ non-exempt California employees who had worked since March 22, 2012, whichis one year priorto the filing of this action to correspond to PAGA’s one-year statute of limitations. (PA 54.) Williams served his Special Interrogatories, Set One, on Marshalls on February 5, 2014. (PA 53-54.) Specifically, Special Interrogatory No. 1 asks for the following information: Set forth the first, middle and last name, employee identification number, each position held, the dates each position was held, the dates of employment, last known address, and all known telephone numbers of each and every person who is or was employed by Defendant Marshalls of CA, LLC in California as a non-exempt employee at any time since March 22, 2012. (Id.) Marshalls’ response to Special Interrogatory No. 1 consisted solely of objections. (PA 59-60.) As a result, Williams met and conferred with Marshalls and offered to address any privacy concerns with a “Belaire-West notice,” which is a privacy notice procedure commonly usedin class action cases allowing employeesthe option to opt out of having their contact information produced. (PA 64.) Marshalls rejected this solution and thereafter continued to refuse to produce the requested employee contact information. (PA 67.) Thereafter, Williams filed a motion to compel Marshalls’ response to this interrogatory (see generally PA 27-43), which Marshalls opposed. (See generally PA 94-112.) At the motion hearing on September9, 2014, the trial court adopted its tentative ruling granting in part Williams’ Motion to Compel, compelling Marshalls to produce contact information forits employeesonly at its Costa Mesastore and notthe other 128 California stores. (PA 229; PA 234.) It ordered this discovery was subjectto a Belaire-West notice process, with the costs to be shared by theparties equally. (PA 229.) It also held that Williams could only renew his motion to seek any additional employees’ namesand contact information after he was deposed “for at least six productive hours” and that Marshalls could refer to this deposition testimony in its opposition if Marshalls believes the deposition “showsthe claims presented herein have no factual merit” whether the challenged corporate policy was uniformly applied throughout the state or not. (PA 230.) The trial court requested that the Court ofAppeal review the matter and address the scope of discovery in a PAGAaction, findingit is the “legitimate subject of an early writ.” (PA 257:10.) The court certified the question under California Code of Civil Procedure Section 166.1 as _ presenting a controlling question of law concerning which there are substantial groundsfor difference of opinion. (PA 257.) Williamsfiled apetition for writ ofmandate on November 10, 2014. A hearing was held on April 22, 2015, and a published opinion issued on May 15, 2015, denyingthe petition for writ ofmandate. First, the Court of Appeal ruled that discovery of Marshalls’ employee contact information statewide was premature, as Williamshadfailed to establish “good cause” under Code Civ.Proc., § 2031.310, subd. (b)(1). (Williams v. Super. Ct. (Marshalls ofCA, LLC) (2015) 236 Cal.App.4th 1151, 1157.) The court held that Williams failed to “evince knowledge of the practices of Marshalls at other stores” or demonstrate that Marshalls has a uniform statewide policy, and thusfailed to establish good cause for the contact information for Marshalls’ California employees. The court also found that “[nJothing in the PAGAsuggests a private petitioner standing in as a proxy for the DLSEis entitled to the same access,” as the DLSE,and thusrejected the argument that PAGA’s purpose authorized the discovery sought. (Jd. at p.1157.) Second, the court held that Williams had failed to demonstrate a “compelling need[that is] so strong as to outweigh the [employees’] privacy right” under the California Constitution, applying thetest articulated in Laniz v. Superior Court (1994) 28 Cal.App.4th 1839. (/d. at pp.1158-1159.) Indeed, the court found that Williams’ “need for the discovery at this time is practically nonexistent.” (/dat p.1159.) Despite the fact that the court stated “discovery in a civil action brought under the PAGAbesubjectto the samerulesas discovery in civil actions generally,” the court did not cite, much less analyze, Pioneer, Puerto, Belaire-West, or Crab Addison. (Id. at p.1158.) Instead, the court concluded by finding that, before he is entitled to seek any additional employee namesor contact information, Williams must establish that he wassubjected to Labor Code violations andsit for a deposition, as well as establish Marshalls’ employment practices are uniform throughout the company.(/d. at p.1159.) On this basis, the writ petition was denied. No rehearing petition wasfiled. ARGUMENT I. THE COURT OF APPEAL RULING RESTRICTING DISCOVERY FOR PAGA PLAINTIFFS REQUIRES REVIEW BECAUSE IT CONTRAVENES CALIFORNIA AUTHORITY FINDING ROUTINE CONTACT INFORMATION OF POTENTIAL PERCIPIENT WITNESSES TO BE DISCOVERABLE A. The Court OfAppeal Failed To Apply This Court’s Pioneer Decision And Its Progeny, Which Establish That Potential Witnesses’ Basic Contact Information Is Relevant And Falls Within The Proper Scope Of Discovery In Aggregate Litigation Williams sought and obtained authorization from the LWDAto seek civil penalties on behalf of Marshalls’ current and former employees throughout California. [PA 8 [§8].)] Williams’ operative complaint reflects that breadth, including allegations of systematic, companywide 10 policies and practices. (See PA 14 , 15 , 17 54].) To obtain additional evidence necessary to meetits burden of proving these companywideallegations, Williams sought in discovery the names and contact information ofnon-exempt employees who workedat Marshalls’ locations in California during the applicable time period, as they are potential percipient witnesses to the wage and hour violationsalleged in the operative SAC. ([/d].) Moreover, all of Marshall’s California non-exempt employees, not just the employees in the same store where Williams ~ worked, are potential aggrieved employees. Indeed, as soon as Williams received authorization from the LWDAto sue for PAGApenalties on their behalf, Williams began representing these aggrieved current and former employees. (/skanian, 59 Cal.4th at pp.379-381.) These potential aggrieved employees’ contact information is directly relevant, as it may be or lead to admissible evidence regarding Marshall’s implementation ofits challenged corporate policies at its stores throughout California in a manner that deprived similarly situated “aggrieved” non-exempt employeesoftheir Labor Coderights. In the context of aggregate litigation, California appellate authority clearly establishesthe plaintiff’s right to discover the namesand contact information of these potential percipient witnesses withoutthe limitation imposed on Williams (and future PAGAplaintiffs) by the Court of Appeal. The Court ofAppeal ruling to the contrary is mconsistent with this line ofcases. Despite extensive briefing on the issue and discussion atoral argument, the Court of Appealfailed even to mention Pioneerorany of the numerous appellate court opinions that follow it. Pioneer held that contact In particular, Williams contendsthat the policies Marshalls has are facially illegal and thusall non-exempt employeesacrossall stores would be subject to such policies. (PA 252:13-28 [Counsel for Williams: “The rest break and meal break policies are facially illegal, in that they do not comply with Brinker.”) 1] information of non-parties is generally discoverablein aggregatelitigation so that the plaintiff may contact others who mayassist in prosecuting the case. (See Pioneer, 40 Cal.4th 360, 373.) In Pioneer, the plaintiffs in a consumer-rights class action sought the names and contact information for all complaining customers who had purchased the sameallegedly defective DVD player and sought copies of any consumer complaints concerning the DVD players. (Pioneer, 40 Cal.4th atp.364.) Finding that “many of Pioneer’s complaining customers would be percipient witnesses to relevant defects in the DVD players,” this Court held that this information was discoverable subject to an opt-out notice. (/d. at p.374 [emphasis in original].) The Court noted that litigants in aggregate litigation would be placed atan unfair advantage without such discovery, but if allowed “to contact those customersand learn oftheir experiences” could improvetheir chancesof succeedingin litigation “thus perhapsultimately benefiting some,if not all, those customers.” (/d. at p.374.) The Court also notedthat “Pioneer would possess a significant advantageif it couldretain for its own exclusive use and benefit the contact information of those customers who complained regarding its product.” (/bid.) California appellate courts have applied Pioneer in the context of wageandhour class actions numeroustimes, in every instancereaffirming the plaintiff's right to discovery of current and former employees’ contact information. For example, in Puerto, the petitioners sued their former employer, a grocery store, alleging wage and hour violations and by interrogatory sought to discover the namesand contact information of non- party employee witnesses. (Puerto, 158 Cal.App.4th at p.1245-1246.) The plaintiffs filed a motion to compelfurther responses after the defendant provided only employee namesbut no contact information. (Id. at p.1247.) The Court of Appeal found such routine contact information was discoverable, as “[t]his is basic civil discovery”and “petitioners need to 12 talk to the witnesses.” (/d. at p.1254.) In fact, the court notedthat“it is only under unusual circumstancesthat the courts restrict discovery of nonparty witnesses’ residential contact information.” (/d.) This is because “our discovery system is founded on the understandingthat parties use discovery to obtain names and contact information for possible witnesses as the startingpoint for further investigations.” (Jd. at p.1249-1250 [emphasis added].) In Crab Addison,the plaintiff in a wage-and-hour class action filed a motion to compelfurther responsesto his special interrogatories requesting the names and contact information forall persons who were employedin a salaried position in any of the defendant’s restaurants in the State of California during the applicable time periods. (Crab Addison, 169 Cal.App.4th at p.961.) The Court of‘Appeal held that the requested names and contact information ofall employees in California were discoverable, denying a petition for writ of mandate challenging such disclosure. (/d. at pp.975, 966 [“The disclosure of the names and addresses ofpotential witnessesis a routine andessentialpart ofpretrial discovery.” [citations omitted].) Similarly in Belaire-West, another wage-and-hour class action, the Court of Appeal denied a writ petition challenging trial court order granting a motion to compel production of the names and contact information for a/l current and former employees subject to an opt-out notice. (Belaire-West, 149 Cal.App.4th at p.565.) The court foundthat “current and former employees are potential percipient witnessesto [the defendant employer’s] employment and wagepractices, and as such their identities and locations are properly discoverable.” (Jd. at p.562.) These casesall stand in stark contrast to the reasoning of the Court of Appeal below, in which the court held that seeking potential percipient witnesses’ contact information was using discovery to “wagelitigation rather than 13 facilitate it.” (Williams, 236 Cal.App.4th at p.1157.) Moreover, the principles ofPioneer and subsequent cases should apply with at least as much force to a PAGAactionasto a class action. The Pioneerline of cases established non-party employees’ contact information as being within the proper scope of discovery pre-certification, and thus discoverable irrespective of whether a class was evercertified or whethera fiduciary relationship ever formed. (See, e.g., Pioneer, 40 Cal.4th at pp.363, 366; Belaire-West, 149 Cal.App.4th at p.556.) If anything, the fact that a PAGAactionis broughtsolely in the public interest would militate in favor ofgreater discovery rights in a PAGA action than in a class action seeking only money damages. Indeed,in the cases cited above, the courts invoked public policy in allowing the requested discovery of the names and contact information of other employees in California. . (See,e.g., Puerto, 158 Cal.App.4th at p.1256 [“As a starting point, the fundamental public policy underlying California’s employmentlawsis implicated here, suggesting that the balance of opposing interests tips toward permitting accessto relevant information necessary to pursue the litigation.”]; Belaire-West, 149 Cal.App.4th at p.562 [same].) In any event, by departing so sharply from the Pioneerline of authority, the Court of Appeal’s decision below has created a direct split of authority with regard to discovery in aggregate wage andhour litigation. This Court should grant review to resolve whetherthese principles enunciated in other aggregate employmentlitigation apply equally to PAGAactions. B. The Court ofAppeal’s Ruling Contravenes The Discovery Act And Adds A “Good Cause” Merits Hurdle That Will Frustrate Prosecution OfPAGA Actions Statewide Underlying the Pioneer line of decisions discussed above were the 14 liberal policies embodied in the Discovery Act,° which make “relevance” the sole standard for discoverable information and specifically make discoverable the identity and contact information of personsretaining knowledge of discoverable matters. (Code Civ. Proc., § 2017.010 [“Discovery may be obtained of the identity and location ofpersons having knowledge of any discoverable matter.”].) Section 2017.010 “provides a broadright to discover any relevant information that is not privileged, including the identity and location of witnesses.” (Crab Addison, 169 Cal.App.4th at p.965-966; see Puerto, 158 Cal.App.4th at p.1249 [the discovery statutes “are to be construed broadly in favor of disclosure, so as to uphold the right to discovery wheneverpossible.”}.) The Court of Appeal failed to apply the broad,liberal principles of the discovery statute and instead engrafted a “good cause” inquiry to ' discovery of routine contact information and found that PAGAplaintiffs must preliminary prove the merits of their case before receiving basic witness contact information. Relying on Code of Civil Procedure section 203 1.310 (b)(1), the Court ofAppeal ruled that a party seeking discovery must show “good cause justifying the discovery sought,” id. [quoting Code Civ. Proc., § 2031.310], and found that the vast majority of discovery requested by Williams, including contact information statewide, was premature dueto a lack of “good cause.”” (Williams, 236 Cal.App.4th at p.1156.) Asan initial matter, the “good cause” requirementrelied upon by the ° Code of Civil Procedure section 2017.010 provides that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pendingaction.. . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” ’ The other ground for denying the requested discovery was based on the Court of Appeal’s assessment of employee privacy interests, which will be discussed, infra, in SectionII. 15 Court of Appeal does not even apply to this case. Indeed, Williams moved to compel under Code of Civil Procedure section 2030.300 (not section 2031.310), which governs motions for orders compelling further response regarding written interrogatories and does not have an explicit good cause requirement. (PA 28.) Section 2031.310, which contains an explicit good cause requirement and wascited by the Court ofAppeal, is not applicable here as it governs motions for orders compelling further response to inspection demands. (Code Civ. Proc., § 2031.310 [“The motion shall set forth specific facts showing good cause justifying the discovery sought by the demand.”].) Likewise, the authority the Court of Appeal cited for this proposition dealt with a demand for inspection of documents andits holding is not relevant here. (See Calcor Space Facility, Inc.v. Super. Ct. (1997) 53 Cal.App.4th 216, 218 [We hold a subpoena under Codeof Civil Procedure section 2020, subdivision (d) . .. must describe the documents to be produced with reasonable particularity.”].) Moreover, no prior opinion of this Court or any published intermediate court authority has engrafted a heightened “good cause” requirement onto the general relevance standard invoked by courts to authorize discovery of basic non-party employee contact information. (See Pioneer, 40 Cal.4th at p.374 [citing section 2017.010 and finding that _ “[oJur discovery statute recognizesthat ‘the identity and location of persons having [discoverable] knowledge’ are proper subjects of civil discovery”]; Crab Addison, 169 Cal.App.4th at pp.965-966 [“Webegin our discussion of the case with Code of Civil Procedure section 2017.010, which provides a broad right to discover any relevant informationthatis not privileged, including the identity and location of witnesses”].) The Court of Appeal’s new requirement contravenesthe liberal principles of the Discovery Act and Pioneer, and creates a conflict with the Puerto line of appellate cases above that never mention section 2031.310 and a “good cause” 16 requirement. A good cause requirement simply does not apply to the at-issue discovery, and even if it does, Williams’ amply demonstrated “good cause” underprior California precedent. Onebasis is the unfairnessof allowing the employer exclusive access to potential percipient witnesses. With exclusive and unfettered access to its own employees,atall locations, Marshalls likely will interview employees from theselocations in its own investigation of Williams’ allegations. However, as California cases have instructed for discovery purposes, “both sides should be permitted to investigate the case fully.” (Atari, Inc. v. Super. Ct. (1985) 166 Cal. App.3d 867, 871.) Indeed, the “expansive scope of discovery”is a deliberate attempt to “take the ‘game’ elementout oftrial preparation” and “do away ‘with the sporting theory of litigation—namely surpriseattrial.” (Puerto, 158 Cal.App.4th at.p.1249 [citations omitted].) One key legislative purpose of the discovery statutes is “to educate the parties conceming their claims and defenses so as to encourage settlements and to expedite and facilitate trial.” (Emerson Electric Co. v. Super. Ct. (1997) 16 Cal.4th 1101, 1107.) The Court of Appeal’s decision runs counterto these precedents, forcing PAGAplaintiffs to operate without knowingthe extent of the employer’s Labor Code violations, while presumably the employeris fully aware of these facts. . A secondbasis for furnishing “good cause”is the collateral estoppel effect the PAGAaction will have on the non-party aggrieved employees who are represented by a PAGAplaintiff. (See [skanian, 59 Cal.4th at p.381 [“Because an aggrieved employee’s action under the [PAGA] functions as a substitute for an action brought by the governmentitself, a judgmentin that action bindsall those, including nonparty aggrieved employees, who would be bound by ajudgmentin an action brought by the government.”].) The fact that any judgmentobtained by Williams will bind 17 the non-party aggrieved employees provides “good cause”for allowing a PAGAplaintiff access to these employeesin case they want to assist in the suit. The Court ofAppeal failed to consider this alternative “good cause” basis. Additionally,a third basis for good cause is the operative complaint, which contains goodfaith allegations of statewide Labor Codeviolations. (See, e.g., PA 14 , 15 , 17 [§54].) In Crab Addison,theplaintiff alleged that the defendants “engage[d] in a uniform policy and systematic scheme of wage abuse against their salary paid employeesin California.” (Crab Addison, 169 Cal.App.4th at p.961.) This was sufficient for the court to grant discovery of the requested statewide contact information. Indeed, the Crab-Addison approach ofpermitting discovery based on goodfaith _ allegations of statewide practices and policies in the complaint; if adopted by this Court, would provide clear guidance to lower courts and would be fair to all parties. Instead, the Court of Appeal’s ruling erects unfairly burdensome hurdles for PAGA plaintiffs to overcome before obtaining basic contact information discovery. For example, the Court of Appeal finds that Williams must “evince knowledge ofthe practices of Marshalls at other stores.” (/d. at p.4.) The Court of Appeal’s “knowledge” requirementis presumably something more than simply pleading on a goodfaith basis, as Williams’ operative complaint wasreplete with allegations regarding Marshalls’ policies and practices throughoutits California locations. (See, e.g., PA 14 [$42], 15 , 17 54].) Assuming the Court of Appealis requiring a PAGAplaintiff to allege specific facts at the outset of the case, this inverts the normalcivil litigation process, forcing a PAGAplaintiff already to possess facts about the employer’s policies and practices before being given the tools to begin his investigation. This holding cannot be reconciled with the other California decisions, holding that “our discovery 18 system is founded on the understandingthat parties use discovery to obtain namesand contact information for possible witnesses as the startingpoint for further investigations.” (Puerto, 158 Cal.App.4th at p.1250 [emphasis added].) Such circular reasoning defies logic and the Court of Appealcites absolutely no authority for such a proposition. The Court of Appeal also found that Williams must first demonstrate the merits of his Labor Code claim in orderto obtain the requested statewide discovery. This includes him sitting for six hours of deposition, even before his counsel has conducted preliminary discovery or has been able to undertake a meaningful investigation into the overall impacts of Marshalls’ challenged workplace policy. (Williams, 236 Cal.App.4th at . . p.1158 [“His first task will be to establish he was himself subjected to violations of the Labor Code. As he hasnotyet satfor deposition, this task remains unfulfilled.”) Yet the Court ofAppeal never explains how forcing a PAGAplaintiff to prove his own claimsat the outset of the case bears any logical connection to the relevance of the identities of possible percipient witnesses in other locations. Moreover, if an employer were entitled to deposea plaintiff before discovery could be taken, aggregate wage and hour actions would be further jeopardized, as cases would begin with the plaintiffs deposition, and then likely follow immediately with an offer to settle in the plaintiff's personal capacity, thereby ending thesuit. Review is warranted to guide California courts in assessing the scope of discovery in PAGAactions and whether discovery of routine contact information available to plaintiffs in other aggregate litigationis similarly available to PAGAplaintiffs upon a showing of relevance as provided by Code of Civil Procedure section 2017.010, rather than any additional good cause or merits-based heightened standards. 19 C. The Court Of Appeal’s Decision Engrafts A Commonality Requirement Onto PAGAActions That Is Inconsistent With This Court’s Decision In Arias The Court of Appeal concludesits ruling by not only requiring Williams to sit down for a deposition in order to obtain the requested discovery, but his “secondtask will be to establish Marshall’s employment practices are uniform throughout the company, which might be accomplished by reference to a policy manual or perhaps deposition of a corporate officer.” (Williams, 236 Cal.App.4th at p.1158.) This is akin to a commonality requirement, requiring PAGAplaintiffs to demonstrate commonissues based on a uniformly applied employmentpractice. However, such a requirementis reserved solely for plaintiffs in class actions, as PAGAactionsare notsubject to ‘any class certification requirements. (See Arias, 46 Cal. 4th at p.984 [holding that class action requirements do not apply to representative claims under the PAGA].) Therefore, any rationale for limiting discovery based on class action concepts (such as lack of commonality or uniformly applied policies, lack of typicality, etc.) is completely inapplicable to Williams’ PAGAclaim. Indeed, the only limitation on such discovery is relevance.* Further, PAGAitself requires no type of showing that Williamsis typical of other aggrieved employeesor that his grievances are common or the result of uniform policies applied to other aggrieved employees such that they all suffered the same violations. Thestatute defines “aggrieved employee” as “any person who was employedbythe alleged violator and * Even the Puerto line ofclass action cases does not require plaintiffs to show commonality prior to obtaining basic contact information of percipient witnesses. As discussedearlier, California case law allowsfor discovery at the precertification stage, prior to proving class elements. (See, e.g., Atari, Inc. v. Super. Ct. (1985) 166 Cal.App.3d 867, 869-70 [finding that elementsof class certification are reserved for judicial determination after a plaintiff's class certification motion].) 20 against whom oneor moreofthe alleged violations was committed.” (Cal. Lab. Code, § 2699(c) (emphasis added). A PAGA-plaintiff “need not be an aggrieved employeeforall alleged PAGAviolationsin that section 2699(c) uses the phrase ‘against whom one or moreof the alleged violations was committed.” (Jeske v. Maxim Healthcare Servs., Inc., (E.D. Cal. Jan. 10, 2012, No. CVF11-1838 LJO JLT) 2012 U.S.Dist. LEXIS 2963, *37.). Thus, PAGA permits an aggrieved employee against whom an employer committed even a single Labor Codeviolation (as enumeratedin section 2699.5) to recovercivil penalties for other violations of the Labor Code committed against other aggrieved employees, regardless of whether the sameviolations were committed against him orherpersonally. (Id) Asa result, the Court ofAppealdecision is inconsistent with Arias . in imposing a commonality requirement that never applies to PAGA claims ‘and does not comport with the PAGAstatute’s plain language, which does _ not require the PAGAplaintiff to have suffered the same violations as other aggrieved employees. Review is necessary for uniformity of decision and to settle whether PAGAplaintiffs must now specifically demonstrate, after taking depositionsorinspections of policy manuals as suggested by the Court of Appeal, employment practices that are uniform throughout a company prior to obtaining simple contact information of other potential aggrieved employees. Il. THE COURT OF APPEAL’S RULING REQUIRES REVIEW BECAUSEIT APPLIED THE LANTZTEST TO EVALUATE THE NON-PARTY AGGRIEVED EMPLOYEES PRIVACY RIGHTS RATHER THE HILL TEST, ADOPTED BY THIS COURTIN PIONEERAND APPLIED NUMEROUS TIMES SINCE, CREATING A DIRECT SPLIT OF AUTHORITY In addition to the Court of Appeal’s finding that there was no “good cause”for the requested discovery the court deemed “premature,” the other basis cited by the Court of Appeal to deny Williams the requested 21 discovery was privacy grounds. The Court ofAppeal foundthat“[e]ven if Marshalls’ employees’identifying information was reasonably calculated to lead to admissible evidence, their right to privacy under the California Constitution would outweigh plaintiff’s need for the information at this time.” (Williams, 236 Cal.App.4th at p.1158.) The Court of Appeal based its decision on Lantz, which found that the party seeking discovery must show a “compelling need” for discovery. (Lantz, 28 Cal.App.4th at p.1853- 1854.) The court in Lantz foundthat “whenthe constitutional right of privacy is involved, the party seeking discovery of private matter must do morethan satisfy the section 2017[.010] standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need mustbe so strongas to outweigh the privacy right when . these two competinginterests are carefully balanced.” (Id. at pp.1853- 1854.) Applying the Laniz test to discovery of contact information directly conflicts with the test in Hill and followed by Pioneerand its progeny, which doesnotinclude a heightened “compelling need”standard. In assessing the discovery orderat issue in Pioneer, this Court applied the frameworkset forth in Hill for evaluating invasion of privacy _ claims under California’s right to privacy provision, Article J, section 1 of the California Constitution. First under Hill, a privacy claimant must possess a “legally protected privacy interest.” (Hill, 7 Cal.4th at p.35.) Second, the claimant mustpossess a reasonable expectation ofprivacy underthe particular circumstances, which includes the “customs, practices, and physical setting surroundingparticular activities.” (/d. at p.36.) Third, the invasion of privacy mustbe “serious” in scope, nature, and actual or potential impactconstituting an “egregious” breach of social norms because a trivial invasion provides no causeofaction. (/d. at p.37.) Ifthis criteria for an invasion ofa privacy interest is met, the interest then must be measuredin a “balancingtest” against other competing or countervailing 22 interests. (/d.) The Pioneer court found that there was noserious invasion of privacy with disclosure of the contact information, as “such disclosure involves norevelation of personalor businesssecrets, intimate activities, or similar private information, and threatens no undue intrusion into one’s personal life.” (Pioneer, 40 Cal.4th at pp.372-372.) Finding that when there is no serious invasion ofprivacy nobalancing of opposinginterestsis required, the court nonetheless performed the balancingtestin Hill to examinethe respective interests involved and concludedthatthere was no breach ofprivacy and the contact information wasdiscoverable. (Id. at pp.373-374.) Instead of using the Hill balancingtest, the Court of Appeal here found that Williams must demonstrate a compelling need for the information, and under the Lantz test, where this compelling need must be so strong as to outweigh the privacy right at issue, the court determined that “Marshalls’ employees’ privacy interests outweigh plaintiffs need to . discovertheir identity at this time.” (Williams, 236 Cal.App.4th at p.1158.) However, this ruling conflicts with Puerto, where the court rejected the compelling need standard advocated by the defendant employer, instead stating that “we apply the Pioneerand Hill privacy frameworkhere to petitioner’s request for contact information for identified witnesses.” (Puerto, 158 Cal.App.4th atp. 1252.) The court found noserious invasion of privacy with this “relatively nonsensitive [contact] information,” and under a balancingtest foundthat the contact information wasdiscoverable without the opt-in notice procedure orderedby thetrial court that had required affirmative consent to disclosure of contact information, unlike an opt-out procedure. (/d. at p.1259.) Similarly in Belaire-West, the court applied the Pioneer and Hill privacy analysis to find discovery of employee contact information with an opt-out notice wassufficient to satisfy any privacy concerns, as 23 “[dJisclosure of the contact information with an opt-out notice would not appear to unduly compromiseeither informational privacy or autonomy privacy in light of the opportunity to object to the disclosure.” (Belaire- West, 149 Cal.App.4th at p.562; see also Crab Addison, 169 Cal.App.4th at p.969 [applying the holding ofPuerto and findingthat “[d]isclosure of witnesses’ identities involves no greater invasion of privacyor revelation of personal information than the disclosure oftheir addresses and telephone numbers.”].) The Court of Appeal in Crab Addison foundthat any violation of the fellow employees’ right to privacy did not outweigh the plaintiff employees’ right to discovery. (169 Cal.App.4th at p.975.) Contrary to the Court ofAppeal decision here, these cases conclude that discovery of contact information is not unduly intrusive, and any minimal issues with respect to privacy can be completely alleviated with.an opt-out notice. Althoughthe Hill test supports Williams’ right to percipient witness contact information, the Court of Appeal ignored it. Instead, it relied on authority addressing far more sensitive information than the at-issue contact mformation. For example, in Lantz at issue werea plaintiff's medical records detailing particular surgeries she had. (Lantz, 28 Cal.App.4th at p.1847.) In Planned Parenthood Golden Gate v. Super. Ct. (2000) 83 Cal.App.4th 347, discovery included theidentities and personal information of individuals associated with abortion providers. The court in that case foundthat the information aboutstaff and volunteers at Planned Parenthood involved “unique and very real threats not just to their privacy, but to their safety and well-being if personal information about them is disclosed.” (Planned Parenthood, 83 Cal.App.4th at p.361.) In following Hill, the Puerto court distinguishes Planned Parenthoodon this point, findingthatit involved the “unusual circumstance of true danger.” (Puerto, 158 Cal.App.4th at p.1254.) 24 As such, the Court of Appeal ruling applying the Lantz compelling needs test to percipient witness informationcreates a directsplit of authority with Pioneer and the Puerto line of cases that apply the Hill balancing test to analogous situations. Yet as this Court stated, “a constitutional standard that carefully weighs the pertinent interests at stake in an orderedfashionis preferable to one dominated by the vague and ambiguous adjective ‘compelling.”” (Hill, 7 Cal.4th at p.57.) Reviewis necessary to settle whatis the propertest to be appliedto the privacy interests involved with the contact information atissuehere. Ti. THE COURT OF APPEAL’S RULING CONFLICTS WITH ISKANIANAND ARIASBECAUSE IT UNDERMINES THE PUBLIC POLICIES PAGA WAS ENACTEDTO PROTECT-. AND EFFECTIVELY NULLIFIES THIS COURT’S. DECISIONS INTENDING PAGA TO BEA POWERFUL LAW ENFORCEMENT TOOL A. The Court Of Appeal’s Ruling Is Contrary To PAGA’s Regulatory Purpose As Expressed In Iskanian and Arias PAGAactionsare necessary to ensure adequate labor law enforcementin a timeof diminished public budgets. (Arias, 46 Cal.4th at p.980. Prior to PAGA,only the Labor Commissionercould bring an enforcementaction under the Labor Codeforcivil penalties. However, that system suffered from twosignificant problems that PAGA wasenacted to overcome. (/skanian, 59 Cal.4th at p.378.) First, although some Labor Code provisions allowed for civil enforcement actions, many others were enforceable only as criminal misdemeanors, with nocivil penalty. Because criminal prosecutors’ resourcesare generally directed towards violent and property crimes, Labor Codeviolationsrarely led to criminal prosecutions. Second, even where the Labor Commissioner could sue forcivil penalties, the state did not havethe resourcesandstaffing sufficient to adequately enforce the Labor Code and deter violations. (/d. at p.379.) To address this budget crisis and remedy the woeful understaffing of 25 California’s labor law enforcement agencies, the Legislature enacted PAGA,whichauthorizes aggrieved employees to bring enforcement actions acting as private attorneys general—as agents or proxies of the state. Uskanian, 59 Cal.4th at pp.379-80.) The Legislature recognized that it is “in the public interest to allow aggrieved employees,acting as private attorneys general, to recover civil penalties for Labor Codeviolations.”" (id. at p.379.) To serve this purpose, PAGAintroduced “civil penalties for Labor Codeviolations ‘significant enough to deter violations.”” (Id.) While prosecuted by an aggrieved employee, a PAGAaction is actually a dispute between an employer andthe state of California. (/d. at pp.386- - 87.)) | - After Williams was authorized to seek PAGA penalties by satisfying the administrative prerequisites, he began representing other aggrieved . employees’ interests in collecting civil penalties for Labor Code violations. (Uskanian, 59 Cal.4th at pp.379-381.) The Court of Appeal’s ruling therefore interferes with Williams’ right to pursue these PAGA penalties, as receiving only a fraction of the discovery sought means recovering a mere fraction ofwhat the civil penalties may be. In effect, the opinion below cheats the state out ofmaximizing scarce resources. As Iskanian and Arias makeclear, in creating a vehicle for private enforcement of Labor Code violations, the Legislature recognized that employeeplaintiffs represent the state labor law enforcement agencies'interests, “namely, recovery ofcivil penalties that otherwise would have been assessed and collected by the [LWDA].” (dd. at p. 380 [quoting Arias, 46 Cal.4th at p.986].) It would makeno sense for the Legislature to simultaneously handicap such enforcement by placing therestrictions on discovery as did the Court of Appeal below. Indeed, employersare liable for certain penalty amounts for each aggrieved employee. (Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 501.) Reduced penalties “will not result in the penalties 26 contemplated under the PAGAto punish and deter employerpractices that violate the rights of numerous employees under the Labor Code.” (Brown, 197 Cal.App.4th at p.502.) As discussed above, in the class action context this discovery was readily available to plaintiffs to aid in prosecuting their actions and identifying putative class membersstatewide. If anything, given the interests of the state, the public rights involved and the purpose ofPAGA,a PAGAaction should entitle a PAGAplaintiff to greater discovery rights than a class action Plaintiff. PAGAplaintiffs must be able to identify and connect with the nonparty aggrieved employees on whose behalf they seek civil penalties. Without such discovery rights, the purpose of PAGAasset forth in Iskanian and Arias will be severely undermined. The decision below provides this Court with a critical opportunity to set the scope of discovery in PAGAactions giventhe statute’s public purpose to augment enforcementof this state’s labor laws. B. The Court of Appeal’s Ruling Cannot Be Reconciled With The Broad Powers Of The California Labor Law Enforcement Agencies In Whose Place The PAGA Plaintiff Litigates Asthe California Supreme Court recently held, a PAGAaction “functions as a substitute for an action brought by the governmentitself” and is “fundamentally a law enforcementaction designedto protect the public and not to benefit private parties.” (Jskanian, 59 Cal.4th at p.381 [citing Arias, 46 Cal.4th at pp.969, 986].) The PAGAplaintiff standsin the position of the state’s labor law enforcementagencies, serving as their substitute as “the employeeplaintiff represents the samelegal right and interest as state labor law enforcement agencies.” (/d.at p.380.) These labor law enforcement agencies possess plenary powerto investigate and prosecute Labor Codeviolations, including the DSLE, which is the main entity for public enforcement of California’s wage and 27 hour laws and for which courts have noted is wide authority to enforce the Labor Code’s wage and hour provisions. (See Milan v. Restaurant Enterprises Group, Inc. (1993) 14 Cal.-App.4th 477, 486-487 [noting that the DLSE’s investigation poweris plenary and “is more analogousto the powerof a grand jury . . . [whereit] can investigate ‘merely on suspicion that the law is being violated, or even just because it wants assurancethat it is not.””] [citations omitted]; see also Craib v. Bulmash (1989) 49 Cal.3d 475, 479, 483 [upholding the broad, plenary power of the DLSE to investigate labor law violations and require production of time and wage records as well as the namesand contact information for employeesin a matter concerning alleged wage-orderviolations]. ) The opinion below undermines PAGAandits purpose, while exaggerating the information that Williams seeks: “[T]he PAGAstates only that a private individual may bring a ‘civil action’ to enforce labor laws, not that the individual may access‘all places of labor’ or demand unlimited information upon pain of criminal conviction.” (Williams, 236 Cal.App.4th at p.1158.) Williamsis not seeking an all-access pass to an employer’s premisesor trying to garner PAGAplaintiffs some type of powerto assess criminal convictions. What’s at stake is mere contact information for potential percipient witnesses, the starting point for basic investigationsin litigation. (See Puerto, 158 Cal.App.4th at pp.1249- 1250.) The PAGAplaintiff should be entitled to the same basic contact information that would be the backbone of any state agency investigation prosecuting Labor Code violations. This is because the California Supreme Court has madeclear that a PAGAplaintiff's status as the proxy or agent of the state is “not merely semantic.” (/skanian, 59 Cal.4th at p.388.) Instead, it “reflects a PAGAlitigant’s substantive role enforcing our labor laws on behalf of state law enforcement agencies.” (/bid.) Therefore, the prosecution of alleged Labor Code violations under PAGA cannot be 28 inhibited by a limited discovery ruling that wipes out the chance to contact the majority of other potentially aggrieved employees and thus any chance to serve a substantive function in addressing those violations. If a court can limit the nght to basic discovery such as contact information that the state would readily obtain without any upfront showing ofviolations or merits of the case, then the aggrieved employee’saction is not truly a “substitute” for the governmentitself. (/d. at p.381.) The Court ofAppeal’s ruling dramatically restricting a PAGA plaintiff's right to basic discovery merits review, as it cannot be reconciled with the broad investigatory powers of the labor agency in whoseplace the ~ PAGAplaintifflitigates his action. | CONCLUSION For the foregoing reasons, Williams respectfully requests that this Court grant plenary review of the Court ofAppeal’s decision. Dated: June 24, 2015 Respectfully submitted, Capstone Law APC py. de Och Glenn A. Danas Robert Drexler Liana Carter Stan Karas Attomeysfor Petitioner MICHAEL WILLIAMS 29 CERTIFICATE OF WORD COUNT Counsel ofrecord herebycertifies that, pursuant to the California Rules of Court, Rule 8.504(d)(1) and 8.490, the enclosed Petition for Review wasproduced using 13-point Times New Roman typestyle and contains 8,388 words. In arriving at that number, counsel has used Microsoft Word’s “Word Count” function. Dated: June 24, 2015 Respectfully submitted, Capstone Law APC . By: qe Cot. Glenn A. Danas Robert Drexler Liana Carter Stan Karas Attorneysfor Petitioner MICHAEL WILLIAMS 30 EXHIBIT A_ CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION ONE MICHAEL WILLIAMS, B259967 Petitioner, (Los Angeles County Super. Ct. No. BC503806) Vv. : SUPERIOR COURT OF LOS ANGELES COUNTY, ~ COURT OF APPEAL - SECONDDIST. Ft ib 1 Respondent;- : MAY 75 2015 MARSHALLSOF CA, LLC, JOSEPH A. LANE Clerk vepsiy Clerk Rea! Party in Interest. Petition for extraordinary writ. William F. Highberger, Judge. Petition is denied. Capstone Law, Glenn A. Danas, Robert Drexler, Stan Karas, Liana Carter for Petitioner. No appearance for Respondent. Littler Mendelson, Robert G. Hulteng, Joshua J. Cliffe, Emily E. O’Connor, Scott D. Helsinger for Real Party in Interest. Background Beginning in January 2012, plaintiff Michael Williams was an employeeata retail store operated by Marshalls of CA (Marshalls) in Costa Mesa, California. On March 22, 2013, after a little more than one year of employment, he brought a representative action against Marshalls underthe Labor Code Private Attorneys General Act of 2004 (PAGA) (Lab. Code, §§ 2698-2699.5), alleging Marshalls failed to provide its employees with mealandrest breaks or premium payinlieu thereof (Lab. Code, §§ 226.7 & 512),' to provide accurate wage statements (§ 226, subd. (a)), to reimburse employeesfor necessary business-related expenses (§§ 2800 & 2802), andto pay all earned wages during employment(§ 204). On February 5, 2014,plaintiff served special interrogatories seeking production of the namesand contact information ofall nonexempt Marshalls employees in California whohad worked for the company beginning on March 22, 2012. Marshalls objected to the discovery on the ground it wasirrelevant, overbroad, unduly burdensome, and implicated the privacy rights of its employees. Plaintiff met and conferred with Marshalls, offering to address its privacy concerns with a “Belaire-Westnotice,” but Marshails rejected the offer. Plaintiff moved to compelthe discovery, arguing the contact information was routinely discoverable in representative employeeactions andvital to the prosecution of his PAGA claims. The trial court granted plaintiff's motion in part, compelling Marshalls to produce contact information for the employees only at its Costa Mesastore and denying production of the contact information of employees at Marshalls other 128 stores statewide. The court ordered that plaintiff could renew his motion to compelthe remaining information after he had been deposed ‘“‘for at least six productive hours.” The court also ruled that in opposition to any such motion, Marshalls could attempt to show plaintiff's substantive claims had no factual merit. ' Undesignatedstatutory references will be to the Labor Code. > Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554. 2 ST OR IE sl at es O t In these writ proceedings, plaintiff seeks a writ of mandate compelling the superior court to vacate its discovery order and enter a new ordergrantingplaintiff's motion to compel production list of all nonexempt employees who workedfor Marshalls beginning on March 22, 2012. Discussion 1. Standard of Review The standard for determining the scopeof discovery is set forth in Code of Civil Procedure section 2017.010, which provides that “(u]nless otherwise limited by order of the court in accordance withthistitle, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pendingaction or to the determination of any motion madein thataction, if the matter eitheris itself admissiblein evidence or appears reasonably calculated to lead to the discovery of admissible evidence. ... Discovery may be obtainedofthe identity and location of persons having knowledgeofany discoverable matter ....” However, “[t]he court shall limit the scope ofdiscovery if it determines that the burden, expense, or intrusiveness of _ that discovery clearly outweighsthelikelihood that the information soughtwill lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.020, subd.(a).) “For discovery purposes, information is relevantif it ‘might reasonablyassist a party in evaluating the case, preparingfortrial, orfacilitating settlement.’ [Citation.] Admissibility is not the test and information,unless privileged, is discoverableif it might reasonably /ead to admissible evidence. [Citation.] The phrase ‘reasonably calculated to lead to the discovery of admissible evidence’ makesit clear that the scope of discovery extends to any information that reasonably might lead to other evidence that would be admissibleat trial. ‘Thus, the scope of permissible discovery is one of reason, logic and commonsense.’ [Citation.] These rules are appliedliberally in favor of discovery.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611-1612.) Managementofdiscovery lies within the sound discretion ofthetrial court. A discovery orderis therefore reviewed under the abuseofdiscretion standard. (Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1161.) “Where there is a basis for thetrial court’s 3 ruling andit is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court. [Citation.] The trial court’s determination will be set aside only whenit has been demonstratedthat there was‘nolegaljustification’ for the order granting or denying the discovery in question.” (Lipton v. Superior Court, supra, 48 Cal.App.4th at p. 1612.) Novel, important discovery issues may be reviewed by prerogative writ. (See Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 169.) 2. Discovery of Marshalls’ Employees’ Contact Information Statewideis Premature “Although the scopeofcivil discovery is broad,it is not limitless.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Discovery devices “must “be used as tools to facilitate litigation rather than as weaponsto wagelitigation.” (/d. at p. 221.) A party seeking to compel discovery musttherefore “set forth specific facts showing good causejustifying the discovery sought... .” (CodeCiv.Proc., § 2031.310, subd. (b)(1); see Caleor Space Facility, Inc. v. Superior Court, supra, 53 at p. 223.) To establish good cause, a discovery proponent must identify a disputed factthat is of consequencein the action and explain how the discovery sought will tend in reason to prove or disprove thatfact or lead to other evidence that will tend to prove or disprove the fact. Plaintiff argues immediate discovery of the contact information of Marshalls’ employees statewide is clearly germane to and necessary for progress in his PAGA action. Wedisagree. Atthis nascent stageofplaintiff's PAGA action there has as yet been no discovery—plaintiff has not even sat for his own deposition. Thelitigation therefore consists solely of the allegations in his complaint. But plaintiff alleges therein only that at the Costa Mesastore, he and perhaps other employeesat that store were subjected to violations of the Labor Code, Nowhere does he evince any knowledgeofthe practices of Marshalls at other stores, nor any fact that would lead a reasonable personto believe he knows whether Marshalls has a uniform statewide policy. That being the case, it was 4 eminently reasonable forthe trial judge to proceed with discovery in an incremental fashion, first requiring that plaintiff provide some support for his own, local claims and then perhapslater broadening the inquiry to discover whether somereasonexists to suspect Marshalls’ local practices extend statewide. Further,a trial court must consider the costs of any discovery and take reasonable steps to promote efficiency and economy. Statewide discovery that includes the mailing of Belaire-West notices and tabulation of responsesis costly. By staging discovery incrementally, the trial court delayed the incursion ofpotentially unnecessary costs until - it becomesclear they are warranted. Plaintiff's proposed procedure, which contemplates jumping into extensive statewide discovery based only onthe bare allegations of one local individual having no ' knowledge ofthe defendant’s statewide practices would be a classic use of discovery tools to wagelitigation rather than facilitate it. We conclude bare allegations unsupported by any reason to believe a defendant’s conduct extends statewide furnishes no good cause for statewide discovery. Plaintiff argues that in a PAGAaction suchasthis, he standsin as a proxy for the Division of Labor Standards Enforcement (DLSE), and should thus beentitled to all discovery to which that agency would be entitled, including “free accessto all places of labor” (§ 90). We disagree. It is true that pursuant to section 90, “The Labor Commissioner, his deputies and agents, shall have free access to all places of labor. Any person,or agentorofficer thereof, who refuses admission to the Labor Commissioneror his deputy or agent or who, upon request, willfully neglects or refuses to furnish them anystatistics or information, pertaining to their lawful duties, whichare in his possession or underhis control, is guilty of a misdemeanor, punishable by a fine of not more than one thousand dollars ($1,000).” Butnothing in the PAGA suggests a private plaintiff standing in as a proxy for the DLSE is entitled to the same access. On the contrary, the PAGAstates only that a private individual may bring a “civil action” to enforce labor laws, not that the individual may access “all places of labor” or demand unlimited information upon pain of criminal 5 conviction. Discovery in civil action is governed by the Code of Civil Procedure. We think it prudent that absent any express direction from the Legislature to the contrary, discovery in a civil action brought under the PAGAbesubject to the samerules as discovery in civil actions generally. Plaintiff also argues the trial court’s order that at some future date Marshalls might resist further discovery by making a showingthatplaintiffs claims have no factual merit constitutes an added burden on discovery not contemplated by the Code of Civil Procedure. We disagree. Weread the court’s order as paraphrasing the common requirementthat discovery not be ordered absent a showing of good cause. 3. Employee Privacy Interests Outweigh Plaintiff's Need for Disclosure at This Time EvenifMarshalls’ employees’ identifying information was reasonably calculated to lead to admissible evidence,their right to privacy under the California Constitution would outweigh plaintiff's need for the information at this time.” The California Constitution provides that all individuals have a right of privacy. © (Cal. Const., art. I, § 1.) This express right is broader than the implied federal right to privacy. (American Academy ofPediatrics v. Lungren (1997) 16 Cal.4th 307, 326.) The California privacy right “limits what courts can compel through civil discovery.” (Rancho Publications v. Superior Court, supra, 68 Cal.App.4th at pp. 1547-1548.) “[W]hen the constitutional right of privacy is involved, the party seeking discovery of private matter must do morethansatisfy the section 2017[.010] standard. The party seeking discovery must demonstrate a compelling need for discovery, and that compelling need mustbe so strong as to outweigh the privacy right when these two competinginterests are carefully balanced.” (Lantz v. Superior Court (1994) 28 Cal.App.4th 1839, 1853-1854; see Planned Parenthood Golden Gate v. Superior Court > Marshalls possesses standing to assert its employees’ constitutional rights. (See Rancho Publications v. Superior Court (1999) 68 Cal.App.4th 1538, 1541 [a nonparty to civil litigation may assert the constitutionally protected right of another to remain unknown].) (2000) 83 Cal.App.4th 347, 367 [courts must balance the privacy interests of the person subject to discovery against the litigant’s need for discovery].) A discovery proponent may demonstrate compelling need by establishing the discovery soughtis directly relevant and essential to the fair resolution of the underlying lawsuit. (Planned Parenthood Golden Gate v. Superior Court, supra, 83 Cal.App.4th at p. 367; Johnsonv. Superior Court (2000) 80 Cal.App.4th 1050, 1071.) Applying this balancing test we conclude Marshalls’ employees’privacy interests outweigh plaintiff's need to discovertheir identity at this time. Those interests begin with the employees’ right to be free from unwantedattention and perhapsfear of retaliation from an employer. Onthe other hand,plaintiffs need for the discovery atthis timeis practically nonexistent. His first task will be to establish he was himself subjected to violations ofthe Labor Code. Ashe hasnotyet sat for deposition, this task remains unfulfilled. The trial court could reasonably concludethat the second task will be to establish Marshalls’ employment practices are uniform throughout the company, which | might be accomplished by reference to a policy manualor perhaps deposition of a corporate officer. The trial court could reasonably conclude that only then will plaintiff be ableto set forth facts justifying statewide discovery. Thecourts will not lightly bestow statewide discovery powerto litigant who has only a parochial claim. Here, the trial court’s measured approach to discovery was reasonable. Therefore, plaintiffs petition is denied. Disposition Thepetition for writ of mandate is denied. Marshalls is to recoverits costs on the original proceeding. CERTIFIED FOR PUBLICATION CHANEY,J. Weconcur: Rabbho ROTHSCHILD,P.J. SON,J.