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

Petitioner’s Response to Amicus Curiae Brief

Cal.June 17, 2016

SUPREME COURT copy No. $227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,anindividual, oyNats ule Plaintiff and Appellant, cea it Vv. SUPERIOR COURT OF CALIFORNIA JUN AT 20th FOR THE COUNTY OF LOS ANGELES, = | a Defendant and Respondent. OYRae o Mewetdes. SMark MARSHALLS OF 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, DEPARTMENT 322 APPELLANT’S CONSOLIDATED ANSWER TO AMICUS CURIAE BRIEFS CAPSTONE LAWAPC GLENN A. DANAS (SBN 270317) RYAN WU (SBN (SBN 222323) ROBERT DREXLER (SBN 119119) LIANA CARTER (SBN 201974) 1840 CENTURY PARK EAST, SUITE 450 LOS ANGELES, CA 90067 TELEPHONE:(310) 556-4811 FACSIMILE: (310) 943-0396 GLENN.DANAS@CAPSTONELAWYERS.COM RYAN.WU@CAPSTONELAWYERS.COM ROBERT.DREXLER@CAPSTONELAWYERS.COM LIANA.CARTER@CAPSTONELAWYERS.COM Attorneys for Plaintiff and Appellant MICHAEL WILLIAMS No, $227228 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA MICHAEL WILLIAMS,anindividual, Plaintiff and Appellant, Vv. SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES, Defendant and 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, DEPARTMENT 322 APPELLANT’S CONSOLIDATED ANSWER TO AMICUS CURIAE BRIEFS CAPSTONE LAW APC GLENN A. DANAS (SBN 270317) RYAN Wu (SBN (SBN 222323) ROBERT DREXLER (SBN 119119) LIANA CARTER (SBN 201974) 1840 CENTURY PARK EAST, SUITE 450 LOS ANGELES, CA 90067 TELEPHONE:(310) 556-4811 FACSIMILE: (310) 943-0396 GLENN.DANAS@CAPSTONELAWYERS.COM RYAN.WU@CAPSTONELAWYERS.COM ROBERT.DREXLER@CAPSTONELAWYERS.COM LIANA.CARTER@CAPSTONELAWYERS.COM Attorneys for Plaintiff and Appellant MICHAEL WILLIAMS TABLE OF CONTENTS TABLE OF AUTHORITIES..000.....cceesssssssssssssetessecssessessessteseeeeeeeeeeeeecc a INTRODUCTIONoo. cecccssssessssesssusssssnesssstecsssssstuisssassatessarisssesteeeeeeeeeeeeccc 1 ARGUMENToesececsssssstescseesssessnessessstssssnssssussssanessttasiesscatieeeeieeeeeeeeeece ccc4 I. THE ORDER BELOW CONTRAVENESPAGA’S STATUTORY DESIGN AND PUBLIC PURPOSE...4 A. The Court Must Reject Amici’s Rewriting Of The PAGAStatute To Require The State’s Proxy To Prove The Merits Of His Case Before Routine Discovery Can Be Obtained..e.ccecceccccccccccc--... 4 1. In Attempting To Justify The Decision, Amici Manufacture Non- Existent Requirements That Conflict With The Statutory Language And Purpose of PAGA .o.eeeccccccsccccsesecececececesceccen. 4 2. The Order Below Exceeds The Trial Court’s Authority To Manage The CSC coeeececceccsccsesssseesnsssetesesessssssssssusesusressessesisisescececececccces 11 B. Amici’s Unfounded Claims of PAGA Abuse Should Be Disregarded ........c.ccccccccssesssssesseseesseeseeceeeecececececc. 14 I. THE TRIAL COURT ABUSEDITS DISCRETION IN DENYING WILLIAMS ACCESS TO ROUTINE CONTACT INFORMATION OF THIRD PARTY EMPLOYEES..0......cccecccccesecssssssesessstseceeeeeeeececcccc. 19 A. The Trial Court AbusedIts Discretion By Denying Discoverable Information To __ Williams In Contravention Of Settled Discovery Principles weecece ssesecsssesseesesseececeeesesecccccc. 19 B. Amici Fail To Justify The Trial Court’s Denial of Discovery, Which Is Wholly Unsupported By The Facts Of The Case -o.cccccccccccccoccccccc cs.22 1. The Trial Court Did Not Merely “Structure” or “Sequence” The Steps For Discovery But Denied Discovery In The First Instance ........ccccccecccccececcce cs... 22 2. The Trial Court’s Order Is Disconnected From The Record In This Case oo... cece eeceeeeeessesescesessssatseatsteasscssaveceeseeseececc 25 The Order Below, If Affirmed, Would Result In A Proliferation Of Post-Deposition Discovery Motions And Thereby Frustrate The Self-Execution Of Interrogatories 0.00.00. ccccccccccccccceccc. 28 Ill. THE DISCLOSURE OF CONTACT INFORMATION OUTWEIGHS THIRD PARTY PRIVACY INTERESTS UNDER THE HILL TEST ooo ceccccceccccceees 29 A. None Of The Amici Can Show That Employees Have A Heightened Expectation Of Privacy, Much LessA Serious Invasion Of PYIVaCY ..eecseecseccsesseessntssstessesusscessssssestessessssssttetseteeececccc. 29 B. Amici Fail To Show That A Balance Test, If Applied, Should Tip In Favor Of Nondisclosure ............ssseccsssssssssesssssesssssarestesstesssesseveeeeeeeescecccc 33 1. The Hill Test Would Tip In Favor Of Disclosure ...... es eceecccseccssesssesersesssstenseseeeseceeeeececcc. 34 2. Amicus The Employers Group's | Proposed Test Is Unworkable o0........ceccecccceccecececececcccec.., 38 CONCLUSION...0. cesccssessssssteesstessnssssssssssivssssusssssinessstssssssiteseseeeeeeeeceeeecce. 4] CERTIFICATE OF WORD COUNT.......cccccccsssseesssssecsssecessssssteseeeeeeeeccc 43 li TABLE OF AUTHORITIES STATE CASES Alch v. Super. Court (2008) 165 Cal.App.4th 1412.00.00 23, 31 Amalgamated Transit Union, Local 1756, AFL-CIO v. Super. Ct. (2009) 46 Cal.4th 993 wocecccecccsccccssssseeessseeeecec 6 Angelucci v. Century Supper Club (2007) 41 Cal. 4th 160 oo... ecccccccccccssssssessstessussesseseeseeeeeeeeccc 7 Arias v. Super. Ct. (2009) 46 Cal.4th 969.000.000.000. 15, 37, 40 Atari, Inc. v. Super. Ct. (1985) 166 Cal.App.3d 867.......0..00.0...... 37 Belaire-West Landscapev. Superior Court (2007) 149 CaL.App.4th 554.00... cccccecscssecscssseseeseesccc.passim Bronco Wine Co.v. Frank A. Logoluso Farms (1989) 214 Cal. App. 3d 699 ooo. ecccccccccesssesessstescsssesseeeeseseeec cc. Al Brown v. Ralphs Grocery Co. (201 1) 197 Cal.App.4th ABD occeeseeeneesneesssseesssecsnsensssssuessssessutsaresstisasesssseeipesteeeeescccc 9 Calcor Space Facility, Inc. v. Super. Ct. (1997) 53 Cal.App.4th 216 oo... eccesssssssssesssssesseesseesstsesaresstivesteseeeccc 20 Caliber Bodyworks, Inc.v. Super. Ct. (2005) 134 Cal.App.4th 365 oo... ecsesscsssssesssssesssteessesstssaresctteeseeeeeseecc 11 Californians For Disability Rights v. Mervyn's, LLC, (2006) 39 Cal.4th 228oesssssesseesseessesesttteteeeneccc 7 Clement v. Alegre (2009) 177 Cal.App.4th 1277.00.00... 28, 29 County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905.............. 30, 31, 33 Coy v. Super. Ct. (1962) 58 Cal. 2d 210 voeeccccccccceccsccsseeceseeeesec ccc. 20 Crab Addison v. Superior Court (2008) 169 Cal.App.4th 958 oo... cceccccccsceeeecseseseseseeecececc 23, 24, 31, 37 EmersonElec. Co. v. Super. Ct. (1997) 16 Cal.4th 1101... 28 Gentry v. Super. Ct. (2007) 42 Cal.4th 443.0000cc17 Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 4Gcee eece tests eeccseecsnnesseeasstasessssessisssissasatsasesesssseeseteeeeceeecc 24 Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355.0000... 20 ii Mill v. National Collegiate Athletic Assn. (1994) 7 Calth Licecccseesssesessessssssssetsssesstessecsesstseeeceeeccce.passim Hortonv. Jones (1972) 26 Cal.App.3d 952 w..ccccccccccccceecececc 24 Irvington-Moore, Ine. v. Super. Ct. (1993) 14 CalApp.4th 733 .......ceecsssssssssssnsesssssteessusssseiesssssssteeeseeccc 21 Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal. 4th 348.cceecceeseessssessssssessssessessstseeeseseeeesecc cepassim Kirby v. ImmoosFire Protection (2012) 53 Cal. 4th LOAeeeceseceseecsnessssecessasessussesssssssiissssatsstsssiestipeeeeeesscc uc. 5, 10 Kobzoff v. Los Angeles Harbor/ UCLA Medical Ctr. (1998) 19 Cal.4th 851 ooeecccceesssssessssseessseesssesssteeeeeeecc. 6 Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325... 21, 31, 37 Life Technologies v. Superior Court (2011) 197 CalApp. 4th 640.0... cecccecsssesssemsssssssssessstessssiesesseseeeeeeecc 36 Loderv. City of Glendale (1997) 14 Cal.4th 846 00000 32, 33 Pacific Tel. & Co. v. Super. Ct. (1970) 2 Cal.3d 161.0000... 23 People ex rel. Lungrenv. Superior Court (1996) 14 CalAth 294ccceeeeecseeesnsssseessssssstussssusessstssessstteeeeeeeeccecc 9 Pioneer v. Superior Court (2007) 40 Cal.4th 360........0..0.0..passim Planned Parenthood Golden Gate v. Super. Ct. (2000) 83 Cal.App. 4th 847occcccccscsssssesssssessesseseseeseesseeseecccc 35 Puerto v. Super. Ct. (2008) 158 Cal.App.4th 1242 00.passim Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 1119............... 6, 12 South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal. App. 4th 861 woceecceccscecccsscscsseeeeeeeeccc cc. 4] Surrey v. TruBeginnings, LLC (2008) 168 Cal.App.4th ADAceceeseeccteecsseesssneetesseasesssiesssstussussaussaessisssesesteteseececcc cc. 7 W. Pico Furniture Co. of Los Angeles v. Super. Ct. (1961) 56 Cab. 2d 407.cccccccscessssesesecseseseseeeeeeeescecc. 23, 28 Williams v. Super Ct. (2015) 236 Cal.App.4th 1151........ 12, 25, 27 Williams v. Super. Ct. (Pinkerton) (2015) 237 Cal.App.4th 642 oo.cccccccccesscsssesssccscesseceeeeeeeceecc cn. 12, 138, 25 lv Woodland Hills Residents Ass’nv. City Council (1979) 23 Cal.3d O17iecccccececcescsssessvseeesessssvacseassseesteseeseeeececc cu. 16 PEDERAL CASES Alcantar v. Hobart Serv. (9th Cir. 2015) 800 F.3d 1047................ 8 Colemanv. Jenny Craig, Inc. (S.D.Cal. June 12, 2003, No. 11-cv-1301-MMA (DHB)) 2013 WL 2896884.................... 37 Fleming v. Covidien Inc. (C.D.Cal. Aug. 12, 2011, No. 10-01487, 2011 WL 7563047 oo... cececcecesecssseesesteseececececcccce, 16 flight Attendants v. Zipes (1989) 491 U.S. 154ccececcecccecececcc-- 20 Franco v. Bank ofAmerica (S.D.Cal. Dec. 1, 2009, No. 09cv1364-LAB (BLM)) 2009 WL 8729265.....cccccccccccccececcececc-- 37 Garvey v. Kmart Corp. (N.D.Cal. Dec. 18, 2012, No. 11-02575) 2012 WL 6599534... cccecccssccccssscssecseceeceeececccccc. 16 Guthrey v. California Dept. of Corrections and Rehabilitation (E.D.Cal. June 27, 2012, No. 1:10-cv- 02177-AW-BAM) 2012 WL 2499988... ooo cecccccccsesecseceeceecececccc, 23 Martinv. Franklin Capital Corp. (2005) 546 U.S. 132............ 20 Martinet v. Spherion Atlantic Enterprises, LLC (S.D.Cal. June 23, 2008 No. 07cv2178 W (AJB)), 2008 WL 2557490 o.oo. cccceccccsesssssestecseeseesecacsessssasseteeeeeeesececccc. 37 Nguyen v. Baxter Healthcare Corp. (C.D. Cal. 201 1) 275 FLR.D. 508 ooo cceeccccscceescescssscseesestaeevascsssetatecestesseeeeecececcccce. 36 Plaisted v. Dress Barn, Inc., (C.D.Cal. Sep. 20, 2012, No. 12-01679-ODW) 2012 WL 4356158.......-cccccccccceccccc-es AO, 41 Sakkab v. Luxottica Ret. N.A. (9th Cir. 2015) 803 F.3d AO aoe eeeececececsceeescessssetseveeecesseesacssesstssssseettceeeceecesccce, 9, 13, 14, 17 Stafford v. Dollar Tree Stores (E.D.Cal. Nov. 21, 2014, No. 13-1187) 2014 WL 6633396 ooo... cccccccccccecceccecececeeccecccccc. 13, 14 U.S. ex rel. Kelly v. Boeing Co., (9th Cir. 1993) 9 F.3d TAB eee ccc cceeeeeseneeaeeaseseeeessescessvavsesaetateesesessecestetecieteeeseseeececc 15 United State ex el. Karvelas v. Melrose- Wakefield Hosp. (ist Cir. 2004) 360 F.3d 220 vocceccccccccccccscsecececeeeecececcccec. 15 United States v. ex rel. Jamison v. McKesson Corp. (5th Cir. 2011) 649 F.8d 322 ooo ceecccecscstesseesessseetececeessececeen. 15 Zackaria v. Wal-Mart Stores, Inc. (C.D.Cal. Nov. 3, 2015, No. 12-1520) 2015 WL 6745714... occccccccccecececeeseceeececce. 14 STATE STATUTES Cal. Bus. & Prof. Code §§ 17200et seq. (Unfair Competition Law (UCL)) .o.cceccccccscscessessesecececeeeecceccc. 41 Cal. Civ. Proc. Code § 1021.5.0...ccccecsccsssscecssecsssssseceeececececcc, 16 Cal. Civ. Proc. Code §§ 2016-2036 (Civ. Disc. Act Of 1986)... cccccecccceccssescesesevestecececeseeccccce.passim Cal. Lab. Code § 1174(6) cocecccccccscsssssssesssestsssesssssseeseesepeeececececc, 28 Cal. Lab. Code § 1193.5(a)....ccccccccccssesssesesessesseessesseteesesececececcccc, 26 Cal. Lab. Code §§ 2698 et seq. (Priv. Atty's. Gen. Act (PAGA))...cccccccccccceccssseseseeeceececcccee.passim FEDERAL STATUTES 31 U.S.C. §§ 3729-3733 (False Claim Act (FCA))...eee 14, 15 Bed. R. Civ. P. 28... .ceccecccsccccsessssssscevetsesssaesevaresreseseseteetececesecccc 37 SECONDARYAUTHORITIES Legislative Analyst’s Office, Budget and Policy Post, March 25, 2016, “The 2016-17 Budget, Labor Code Private Attorneys General Act Resources”at http://www.lao.ca.gov/Publications/Report/3403...................... 16 Nicole Wredberg, Subverting Workers’ Rights: Class Action Waivers and the Arbitral Threat to the NLRA,67 Hastings L.J. 881, 884-887 (2016) oo-ccccccccccececece 17 Sen. Rules Com. Off. Of Sen. Floor Analyses, analysis of Sen. Bill No. 1809 (2003-2004 Reg. Sess. (internal brackets deleted)] .0......cccccccccccccccsssesseccsecssescsessseseaseteeveceecececccc. 11 vl INTRODUCTION Amici supporting Real Party in Interest Marshalls of CA, LLC! (“Amici”) say verylittle about the decisive principle that compels reversal of the decision below: an uninterrupted line of case law, rooted in Pioneer Elecs. (USA) v. Super. Ct. (2007) 40 Cal.4th 360, holding that employee contact information is routine discovery that must be disclosed to an employee-plaintiff alleging labor law violations. Amici present no sound reasons as to why Appellant Michael Williams, as the state’s proxy alleging that Marshalls committed Labor Code violations, should be exempted from this rule mandatingdisclosure of contact information. Several Amici assert that the Labor Code Private Attorneys General Act (“PAGA”) limits the right to such discovery. But they struggle to identify any specific statutory language in the PAGAthat supports their claim. Instead, they attempt to rewrite the law itself, making a hash of PAGA’s statutory design by claiming that it supports a bifurcated action where the PAGA plaintiff must first prove that he has in fact suffered Labor Code violations, and second, adduce evidenceofviolations against employeesin otherlocations, before he can obtain employee contact information (with which to investigate the violations), ' Six briefs were filed from organizations supporting Marshalls. They are: (1) International Association of Defense Counsel (“IADC”); (2) National Association of Manufacturers, American Coatings Association and NFIB Small Business Legal Center, jointly (“NAM”): (3) Retail Litigation Center, Inc., California Retailers Association, and California Grocers Association (“RLC”); (4) Prometheus Real Estate Group (“Prometheus”); (5) California Apartment Associate (“CAA”): and (6) The Employer Group (“TEG’). PAGAdoes not authorize this kind of bifurcation. The provisions on standing cited by Amici do not require the PAGA plaintiff to prove that violations were committed against him simply to maintain his suit. Rather, consistent with other statutes on standing, PAGAonly requires that the plaintiff allege facts to establish standing. For PAGA, Williams’s allegation that he suffered violations, along with his exhaustion of administrative prerequisites, qualifies him to represent the state and other aggrieved employees. Affirming the decision below would also undermine PAGA’s public purposein deterring unlawful practices through a scheme that imposescivil penalties against employers for violations committed against all employees. If bifurcated discovery were to becomethe law, the vast majority of low-wage workers serving as whistleblowers would likely be thwarted from maintaining their suits as representative actions. For example, workers whofiled suit after observing violations against other employees would still be forced to prove violations against them and other employees in the first instance—a nearly-impossible task without the assistance of other employees or records—before being allowed to gather evidence of those violations through interviews. This backwards procedure turns law enforcement on its head, shielding employers from further investigation. Most PAGA actions would be reducedto individual actions before discovery even commences, thus imperiling the objectives of PAGA. Disabling PAGAis precisely what Amici hopes to achieve. Inveighing against supposedly unscrupulous PAGAlitigants with little more than anti-plaintiff bromides, Amici implore this Court to impose furtherrestrictions on PAGA actions. But if rewriting the PAGAstatuteis their ultimate goal, Amici should take their issues to the Legislature. To be sure, the Legislature recently amended PAGA, making only modest changesprimarily to the settlement process. This enactment shows that the Legislature does not believe that the courts have been inundated with meritless PAGA suits that require substantial reform. Several Amici address the Civil Discovery Act, resting on the broad proposition that the court has near-limitless discretion on discovery matters. But trial courts have been found to have abused their discretion for denying the disclosure of contact information—precisely the situation here. “Discretion” does not shield the order below from reversal. Finally, three of the Amici primarily address the privacy issue. None can show that the disclosure of contact information to an employee-plaintiff represents a “serious invasion of privacy” or that there exists some unusual circumstance that requires a restriction of this information. Indeed, Amicus TEG concedes that the privacy interest here would not satisfy the constitutional privacy test this Court adopted in Hill v. Nat’ Collegiate Athletic Assoc. (1994) 7 Cal.4th 1. Instead, TEG suggests a new test whereby the PAGAplaintiff must prove his bonafides to represent other employees at multiple stages in the ltigation—a test that finds no basis in the Civil Discovery Act or the PAGA statute and must be rejected. In sum, unlike the Amici supporting Williams, these Amici G o cannot groundtheir positions in well-settled principles ofcivil discovery or the purpose and statutory language of PAGA. Their call to affirm the erroneous decision below, thereby neutering PAGA’s effectiveness, must be rejected. ARGUMENT I. THE ORDER BELOW CONTRAVENES PAGA’S STATUTORY DESIGN AND PUBLIC PURPOSE A. The Court Must Reject Amici’s Rewriting Of The PAGAStatute To Require The State’s Proxy To Prove The Merits Of His Case Before Routine Discovery Can Be Obtained Unhappy with a law, PAGA, aimedat achieving “maximum compliance with state labor laws” Uskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 379), Amici attempt to rewrite the statute more to their liking. Amici wants, as a matter of law, for the state’s proxy to have to “prove” the merits of her allegations at the outset of discovery before she has the right to obtain discovery in aid of her investigation. This pretzel logic is nowhere in languageor design of the PAGA statute, and,if adopted, would undermine the purpose of the Act. 1. In Attempting To Justify The Decision, Amici Manufacture Non-Existent Requirements That Conflict With The -- Statutory Language And Purpose of PAGA As explained in Williams’s briefs on the merits, the decision below imposesconditions on a PAGAplaintiff not found in the PAGAstatute, and which are contrary to the purpose and objectives of PAGA. Without addressing these points, several Amici broadly contend that the discovery orderat issue should be affirmed becauseit forces the PAGAplaintiff to prove standing to sue and is thereby a logical way to “sequence” discovery. (See RLC Brief at pp. 4-5; [ADC Brief at pp. 4-7.) Amici posit that Williams has notyet satisfied an enhanced standing rule that requires a PAGAplaintiff to first prove that violations were in fact committed against him before the action may continue. (See NAM Briefat pp. 5-6 [“The qui tam Plaintiff has not established that he qualifies as an ‘aggrieved employee’ as defined under PAGA”]; RLC Brief at pp. 11-12.) Of course, this rule is pure fiction, devised by Amicito justify the logic of the decision below, which otherwise makes no sense. Nothing in the PAGAstatute requires the plaintiff to prove his individualallegations at the outset of the litigation to establish standing. In evaluating the meaningof a statute, the Court “must first look to the words of the statute, because they generally provide the mostreliable indicator of legislative intent.” (Kirby v. Immoos Fire Protection (2012) 53 Cal.4th 1244, 1250 [internal quotations andcitation omitted].) “If the statutory language is clear,” the Court’s “inquiry ends.” (/d.) Statutes “governing conditions of employment are to be construed broadly in favorof protecting employees.” (/d.) Nothing in the PAGA statute requires that the aggrieved employee-plaintiff must first demonstrate through evidence that he suffered violations before obtaining standing to represent other employees. To the contrary, the PAGA simply states that an actionfor civil penalties may be “brought by an aggrieved employee on behalf of himself or herself and othercurrentor former employees pursuant to the procedures specified in Section 2699.3.” (Lab. Code § 2699 subd.(a).) The statute defines an “aggrieved employee” as “any person who was employed by the alleged violator and against whom one or moreof the alleged violations was committed.” (Id. § 2699 subd. (c) [emphasis added].) A plaintiff satisfies PAGA’s standing requirement if he or she satisfies the requirements of those two subdivisions alone. (See Amalgamated Transit Union, Local 1 756, AFL-CIO v. Super. Ci. (2009) 46 Cal.4th 993, 1004-05 [analyzing PAGA standing through the prism of Subsection 2699 subd. (a) and subd.(c) only].) The plain meaningof subsection 2699(a) is that an aggrieved employee, following the completion of the “procedures specified in Section 2699.3’—that is, administrative exhaustion— may bring a PAGAaction “on behalf of himself or herself and other... employees.” The use of the word “and” in this statute connects the aggrieved employee with other employees, meaning that the PAGAaction brought by the aggrieved employeeis necessarily brought on their behalf. (See Kobzoff v. Los Angeles Harbor/ UCLA Medical Ctr. (1998) 19 Cal.4th 851, 861 [“[T]he ordinary usageof‘and’is to condition one of two conjoined requirements by the other, thereby causally linking them.”].) In other words, under subsection 2699(a), “[a] plaintiff asserting a PAGAclaim maynot bring the claim simply on his or her own behalf but mustbring it as a representative action and include ‘other current or former employees.” (Reyes v. Macy’s, Inc. (2011) 202 Cal.App.4th 1119, 1123-24.) And underthe express text of Section 2699 subdivision (c), a person whoalleges that violations were committed against him by the employerqualifies as an aggrieved employee. The PAGA statute would not have specified the phrases “alleged violator” or “alleged violations” if it required proof of those violations in the first instance to establish standing.? This is consistent with the general proposition that “[t]he existence of standing generally requires thatthe plaintiff be able to allege ... an invasion of his legally protected interests.” (Surrey v. TruBeginnings, LLC (2008) 168 Cal.App.4th 414, 417 [emphasis added]: see also Angelucct v. Century Supper Club (2007) 41 Cal.4th 160, 175-76 [holding that the plaintiffs under the Unruh Act adequately alleged they had suffered an “invasionof ... legally protected interests” [citation] sufficient to afford them an interest in pursuing their action vigorously.. . ”].) By operation of these two statutes, a plaintiff has standing to bring a PAGAaction on behalf of other employees once he has (1) submitted a letter to the LWDA and the employer that complies with Section 2699.3; and (2) alleged that one or more violations were committed against him. It is uncontested that Williamssatisfies these requirements, and the statute requires nothing moreto establish his standing to represent former and 2 To be sure, a defendant maychallengea plaintiffs standing at any time. (Californians For Disability Rights v. Mervyn's, LLC, (2006) 39 Cal.4th 223, 232-33 [“[S]tanding must exist at all times until judgmentis entered”].) However, since PAGA’s standing requirementis established by the plaintiff alleging that he has suffered one or moreviolations, the employer cannot challenge standing by demanding that he “prove” those violations at a later stage. current employees in seekingcivil penalties against Marshalls. The alternative PAGA action proposed by Amici and assumed by the courts below, where the PAGA plaintiff only represents himself until he proves otherwise (that he demonstrates proof of violations against himself and/or against other employees), flouts the plain language of PAGA and mustberejected. Perhaps recognizing that their arguments are not grounded in the statutory language, several Amici argue that this enhancedstanding requirementis a logical extension of the PAGAlanguage. (See, e.g., RLC Brief at pp. 11-13.) But Amici are not “extending” PAGA’sprovisions; they are conflating distinct requirements. NAM arguesthat the “facts and theories” provision of Subdivision 2699.3(a)(1) is meantto “force employees to establish the foundationof their claims and facilitate remedies [with] the qui tam aspect of the law designed to provide employees with a backstop.” (See NAM Brief at pp. 7-8.) However, the “facts and theories” requirement pertains solely to the pre-filing administrative exhaustion procedure. Indeed, requiring the plaintiff to specify “facts and theories” of his caseis meantto “allow the Labor and Workforce Development Agency to intelligently assess the seriousnessofthe alleged violation” in deciding whether to investigate the claimsin thefirst instance.? (See Alcantar v. Hobart Serv. (9th Cir. 2015) 800 F.3d 1047, 1057.) The LWDAnotice is meant to provide sufficient facts so * Moreover, any criticism of the sufficiency of Williams’s LWDAnoticeis beside the point. Even there were a deficiency in the LWDAnotice, that is properly challenged by a demurreror other pleading motion, which Marshalls did not do here. the agency can investigateifit chooses, not to require the PAGA plaintiff to prove facts and theories to maintain his suit ata preliminarystage. Adopting such a requirement for PAGA plaintiffs would also contradict PAGA’s public purpose. (See Iskanian, supra, 59 Cal.4th at p. 383 [finding that PAGAis “clearly established for a public reason’].) Public enforcementstatutes are construed broadly to accomplish their public purpose, including those with a civil penalties provision. (See People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 313.) Applying this principle, this Court in Iskanian held that a pre-dispute waiver of an employee’s right to bring representative PAGA claimsis unenforceable becauseit “frustrates PAGA’s objectives.” (Iskanian, supra, 59 Cal.4th at p. 384.) Enforcing such a waiver and requiring single- claimant arbitration of PAGA claims “w[ould] not result in the penalties contemplated under the PAGAto punish and deter employer practices that violate the rights of numerous employees under the Labor Code.” (Id. [quoting Brown v. Ralphs Grocery Co. (2011) 197 Cal.App.4th 489, 502].) Thus, the explicit purpose of Iskanian’s holding “is to preserve the deterrence schemethe legislature judged to be optimal.” (Sakkabv. Luxottica Ret. N.A. (9th Cir. 2015) 803 F.3d 425, 439.) It makeslittle sense for a Legislature that created a civil penalties scheme for PAGA where penalties are “measured by the numberof violations an employer has committed... [against] multiple employees” (Sakkab, 803 F.3d at p. 438) to countenance the decision below, which would restrict the PAGAplaintiff to prosecuting violations only against himself unless and until he proves the employer committed violations againstothers. Adopting the latter rule would stymie employee-whistleblowers, who may have observed violations against other employees, from investigating company-wide claims. In a PAGA action underthis rule, a low-wage employee would have to show violations against himself and/or other employeesin thefirst instance before he is allowed to gather actual evidenceofviolations through the discovery process. A plaintiff that has strong reasonsfor believing that unlawful practices exist—such as, for example, having been told of such violations by other employees—would still struggle to prove the merits of his claims or that violations were committed against others before discovery even commences. The likely consequenceis that, in the vast bulk of cases, particularly for low-wage employees where the employee would havelittle access to management policies, PAGAplaintiffs would be foreclosed from investigating violations against other employees. This would substantially undermine aggrieved employees’ ability to obtain civil penalties sufficient to deter violations, thus imperiling the objectives of PAGA. While Marshalls and Amici undoubtedly want this very result, they cannot achieve their goal with the assistance of this Court. Finally, because the statutory language is unambiguous, the court need not “turn to extrinsic aids to assist in the interpretation,” such aslegislative history. (Kirby, supra, 53 Cal.4th at p. 1251.) But the legislative history of PAGA, even if considered, would not help Amici. Amici cites to the 2004 10 Amendments, which added the administrative exhaustion requirement, to argue that the amendment somehowalso imposed heightened standing requirements. (See, e.g., NAM Brief at pp. 7-8.”) Wrong. In fact, the 2004 Amendment to PAGA “was ‘the result of an agreement reached between the LWDA,business 99)andlabor representatives” that was designed to “improve[ ] the Act by allowing the LWDAto actfirst on more‘serious’ violations such as wage and hourviolations and give employers an opportunity to cure less serious violations.” (Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 375 [quoting Sen. Rules Com. Off. Of Sen. Floor Analyses, analysis of Sen. Bill No. 1809 (2003-2004 Reg. Sess. (internal brackets deleted)].) The 2004 Amendment simply grants the LWDA the right of first refusal to investigate violations through a notice procedure. Amici’s attempt to leverage this Amendmentinto also imposing a greater substantive burden on PAGAplaintiffs fails. In short, the order below is inconsonant with PAGA’s statutory language, statutory objectives andlegislative history and must be reversed. 2. The Order Below Exceeds TheTrial Court’s Authority To Manage The Case Amici also argue that the discovery orderbelow is well- within with a trial court’s authority to manage the case and bifurcate proceedings. (See NAM Briefat pp. 8-9; RLC Brief at pp. 6-8; TEG Brief at p. 19.) Wrong again. First, the decision of the courts below to bifurcate PAGAis reversible error. The order below institutes a two-step process whereby Williamswill need to prove his individualviolations 1] first before representative discovery can commence. (Williamsv. Super. Ct. (2015) 236 Cal.App.4th 1151, 1157.) The bifurcation is based, in part, on the Court of Appeal’s implicit finding that the plaintiff merely has individual claims and must meet some threshold test to investigate his statewide representative claims. (d. [“(JJumping into extensive statewide discovery based only on the bare allegations of one local individual having no knowledge of respondent’s statewide practices would be a classic use of discovery tools to wagelitigation...”].) But the Court of Appeal misconstrues PAGA,which cannot be split so that the plaintiff mustfirst prove his individual allegations before he qualifies to pursue representative claims. (See Williams v. Super. Ct. (Pinkerton) (2015) 237 Cal.App.4th 642, 649 [“Pinkerton’].) In Pinkerton, the court reversed a trial court that ordered a PAGAaction to be bifurcated, with an initial, separate determination of standing as an aggrieved employee before the plaintiff could pursue his representative PAGA claim. (Id. at p. 646.) Pinkerton held that the“trial court cited no legal authority for its determination that a single representative action may be split in such a manner.” (Id. a Dp. 649.) Pinkerton concluded that the plaintiff “does not bring the PAGAclaim as an individual claim, but as ‘the proxy or agent of the state’s labor enforcement agencies,” thereby foreclosing a division of the PAGA action between purportedly “individual” and “representative” components. (Ibid. [quoting Reyes, supra, 202 Cal.App.4th at p. 1124.) Pinkerton underscores that the plaintiff in a PAGA action 12 is seeking only representative claims on behalf of himself and other employees. For the Court of Appeal to interpose an evidentiary obstacle that the PAGA plaintiff must surmount before he can qualify to investigate his representative claims is contrary to the PAGA statute and cannot stand. Second, without addressing Pinkerton, both NAM and RLC4 turn to a single, unpublished, outlier district court case, Stafford v. Dollar Tree Stores (E.D.Cal. Nov.21, 2014, No. 13-1187) 2014 WL 6633396 to support their preferred reading of PAGA. In Stafford, a pre-Iskanian decision, the district court erroneously found that “while plaintiff and the LWDA share the same interest...the other PAGAplaintiffs have individual interests, which will require someindividual proof.” (Ud. at p. *4 [emphasis added].) Emphasizing “the scope of individualized assessment necessary to demonstrating Labor Codeviolations,” the Stafford court ordered bifurcated proceedings where the plaintiff must first establish his status as an aggrieved employee. (Ibid.) Stafford’s reasoning does not survive Sakkab, which held that other employees in a PAGAsuit do not have individual interests. (Sakkab, supra, 803 F.3d at 435 [“by obtaining[civil] penalties, the employee-plaintiff does not vindicate absent employees’ claims, for the PAGA doesnot give absent employees any substantive right to bring their ‘own’ PAGA claims.”].) Stafford’s premise is therefore wrong. Moreover, Stafford’s minimization of PAGA’s enforcement function runs afoul of *RLCalsorelies on a trial court case bereft of reasoning and an internetarticle written by a defense attorney. Sakkab, which held a PAGA plaintiffs “right to recover penalties for violations that did not directly harm the party bringing the action” cannot be curtailed, asit reflects the “state’s chosen method of enforcing its labor laws.” dd. at p. 440.) Furthermore, in a well-reasoned recent decision, another district court expressly declined to follow Stafford’s misguided holding, post-Iskanian. (See Zackaria v. Wal-Mart Stores, Inc. (C.D.Cal. Nov. 3, 2015, No. 12-1520) 2015 WL 6745714, *6 n.9.) Citing to large body of decisions that eschewed a manageability requirement for PAGA actions, Zackaria emphasized that “[i]mposing... a [manageability] requirement, found nowhere in PAGAitself and apparently not imposed upon the government, would ‘obliterate [the] purpose’ of representative PAGA actions.” Ud. at p. *6 [“[T]he imposition of a manageability requirement— which finds its genesis in Rule 23—makeslittle sense in this context’].) Amici’s invocation of the court’s case management powers cannot rescue the order below. There is no “manageability” requirement for PAGA, and the court cannot use its inherent powers to managethecase to rewrite and neutralize the PAGA statute. B. Amici’s Unfounded Claimsof PAGA Abuse Should Be Disregarded Several Amici argue that this Court should take steps to weaken the PAGAaction due to the potential for abuse. For instance, NAM expressly compares PAGAactions to False Claim Act (“FCA”) cases, which it suggests have “becomeparasitic” due to the increase in both FCA suits and non-intervened claims. 14 (NAM Brief at pp. 17-18.) From its unfounded claims of rampant FCA abuse,® NAM takes a greaterlogical leap in concluding that many PAGAactions are similarly meritless, and used for “personal gain,” with no evidence to support this inflammatory accusation. Similarly, RLC warns ominously of a rise in PAGA-only suits before lashing out at plaintiffs’ attorneys for a purported conflict of interest in bringing PAGA-only suits—a “conflict” that betrays RLC’s misreading of PAGA.® (RLC brief at pp. 14-20.) > NAM baldly misrepresents the FCA and case law. (NAM Brief at pp. 17-18.) A qui tam action is not presumed meritless when the governmentdoes not intervene. Under the FCA, “[w]hen the government chooses not to take over a quitam action, the relator ‘shall have the right to conduct the action.” (See U.S. ex rel. Kelly v. Boeing Co., (9th Cir. 1993) 9 F.3d 743, 746.) United States v. ex rel. Jamison v. McKesson Corp. (5th Cir. 2011) 649 F.3d 322, 331 does not aid NAM,andthat case found that the non-intervened claims presumably lacked merit because the governmentdid intervene on otherclaims in the sameaction. And NAM willfully misquotes United State ex el. Karvelas v. Melrose- Wakefield Hosp. (1st Cir. 2004) 360 F.3d 220, 242, fn.31, omitting the key word “potentially” from the full quote, “the government's decision not to intervenein the action also suggested that Karvelas's pleadings of fraud were potentially inadequate.” ° RLC’s novel suggestion that a “PAGA-only”action creates a purported conflict of interest between the plaintiff and his attorney misapprehends PAGA law. RLC claims that, by serving as a private attorney general, Williams would “forego the recovery he could have obtained from the individual Labor code claims he could have brought.” But in bringing a PAGAsuit, Williamsis seeking only civil penalties on behalf of the state; a judgment on the PAGAaction does not preclude Williams from also seeking recovery for his individual claims. (See Ariasv. Super. Ct. (2009) 46 Cal.4th 969, 986.) 15 Andthe California Apartment Association (“CAA”) takes aim at the private attorney general regime more generally, arguing that it incentivizes plaintiffs’ lawyers to unfairly extract concessions from heroic entrepreneurs.’ (CAA Briefat pp. 17-20.) Notably, these industry groups’ anti-private enforcement, anti-plaintiffs’ attorney shibboleths are not supported by any studies or examples related to PAGAitself. From the available information, PAGA actions are being prosecuted in the way the Legislature intended. Far from servingonly the plaintiffs own interest, the state has seen a dramatic 53% percent annual increase in revenue generated by PAGAcivil penalties, from $5.7 million in the 2013-14 budget year to $8.7 million in the 2014-15 budget year. (Legislative Analyst’s Office, Budget and Policy Post, March 25, 2016, “The 2016-17 Budget, Labor Code Private Attorneys General Act Resources” at http://www.lao.ca.gov/Publications/Report/3403.) This revenue increase furthers the state’s goal of “receiving the proceedsofcivil ’ California has a longstandingpolicy that incentivizes attorneys to pursue statutory actions in the publicinterest. (See Woodland Hills Residents Ass’n v. City Council (1979) 23 Cal.3d 917, 925 [articulatingthe policy of encouraging public interest litigation through attorney incentives as enacted under California Code of Civil Procedure section 1021.5].) 8 With little to point to, NAM resorts to quoting an internet article to suggest that no PAGAtrial has ever been conducted. (NAM Brief at p. 19.) However, a cursory search reveals that several such trials have occurred. (See, e.g., Fleming v. Covidien Ine. (C.D.Cal. Aug. 12, 2011, No. 10-01487, 2011 WL 7563047 {bench trial on PAGAclaim for wage statement violations]; Garvey v. Kmart Corp. (N.D.Cal. Dec. 18, 2012, No. 11-02575) 2012 WL 6599534[benchtrial on seatingviolations].) 16 penalties used to deter violations.” Uskanian, supra, 59 Cal.4th at p. 383.) This also furthers the California policy of enforcing the labor code through aggregate litigation. (Gentry v. Super. Ct. (2007) 42 Cal.4th 443, 463-64.) Low-wage workers often have no feasible way of pursuing wage violations individually, and cannot do so via class actions due to the widespreaduse of class action waivers.° (Iskanian, supra, 59 Cal.4th at p. 366 [abrogating Gentry on the invalidation of class waivers in the employment context].) The PAGAactionis often the only wayto enforce the Labor Code in California. To the extent that Amici are sincere about the perceived misuse of the PAGA action, they should take their complaints to the Legislature rather than have this Court invent a different law. As it stands, PAGA“reflect[s] California’s judgment on how best to enforce its labor laws.” (Sakkab, supra, 803 F.3d at p. 439.) As part of that judgment, the Legislature already choseto preclude “citizens who were not employees of the defendant employer” from serving as the PAGAplaintiff but instead limited “qui tam plaintiffs to willing employees who had been aggrieved by the employerin orderto avoid ‘private plaintiff abuse.” Uskanian, supra, 59 Cal.4th at p. 387.) If the Legislature believes that a bifurcated structure or a phased discovery scheme where the PAGA plaintiff mustfirst prove the existence of his own violations on the merits before he can qualify to represent other employees, serves the objectives of * Nicole Wredberg, Subverting Workers’ Rights: Class Action Waivers and the Arbitral Threat to the NLRA, 67 Hastings L.J. 881, 884-887 (2016). 17 PAGA,it can amendthe statute to implement such a procedure. Such a dramatic change in the design of PAGA, however, should not be imposed from without. The Court should also disregard the language contained in a proposed amendment that several Amici cite as evidence of PAGAabuse. (See RLC Brief at pp. 17-18, and Request for Judicial Notice, Ex. 1.) That proposed amendment was not adopted by the Legislature. Instead, on May 18, 2016, the Legislature approved only minor changes to the PAGA statute, limited to: That filing fees shall be specified as amongthe costs that can be recouped by the prevailing attorney (Labor Code § 2699, subdivision (g)(1)): That a copy of the PAGA complaint must be submitted to the LWDAwithin ten daysoffiling (Labor Code § 2699, subdivision (/)(1)); That the trial court is expressly required to approve the settlement following service of the settlement to the LWDAonline, and an approval order must also be served on the LWDA (LaborCode § 2699, subdivisions (D(2)-(4)); - Notice letters are to be submitted with a $75 filing fee and filed online, with LWDAreservingthe right to extend theinitial investigation for an additional 60 days before issuing a formal acceptance or decline notice. (Labor Code § 2699.3); (See Request for Judicial Notice, Ex. 1.) 18 There were no changesto the standing provision under Labor Code §2699, subdivision (a) or the “aggrieved employee” definition undersubdivision (c). Nordid the Legislature impose new standing requirements upon the PAGA plaintiff. These changes demonstrate that the Legislature has not found any widespread “abuse” of the PAGA device that would necessitate structural changes. Therefore, the Court should decline Amici’s inappropriate request to impose additional requirements upon the PAGAplaintiff not imposed by the Legislatureitself. I]. THE TRIAL COURT ABUSEDITS DISCRETIONIN DENYING WILLIAMS ACCESS TO ROUTINE CONTACT INFORMATIONOF THIRD PARTY EMPLOYEES A. The Trial Court AbusedIts Discretion By Denying Discoverable Information To Williams In Contravention Of Settled Discovery Principles The trial court abusedits discretion in forcing Williams to shoulder the unique burdenofsatisfying a series of preliminary merits hurdles prior to obtaining what an unbroken line of California precedent has deemed “basic discovery.” (Puerto v. Super.Ct. (2008) 158 Cal.App.4th 1242, 1254.) Like Marshalls, Amici provide no valid reason why PAGAplaintiffs seeking discovery of routine employee contact information have a more _ stringent burden than that placed on anyotherplaintiffs seeking contact information of percipient witnesses whose discovery requests are governed by the Civil Discovery Act’s relevance standard. Amici paysfealty to the principle that the trial court has broaddiscretion on discovery matters. (See, e.g., IADC Brief at 19 pp. 4-6; RLC Brief at pp. 4-5.) But judicial discretionis not unlimited: “[I]n a system of laws discretion is rarely without limits.” (Flight Attendantsv. Zipes (1989) 491 U.S. 754, 758.) “[A] motion to [a court’s] discretion is a motion, not to its inclination, but to its judgment; andits judgmentis to be guided by soundlegal principles.” (Martin v. Franklin Capital Corp. (2005) 546 U. S. 132, 139.) For discovery orders, the “exercise of discretion does not authorize extension beyond the limits expressed by the Legislature.” (Greyhound Corp. v. Super. Ct., (1961) 56 Cal.2d 355, 378-9, 383.) For instance, a court abuses its discretion when it requires a showing of good cause when “[t]he statute does not require any showingof good causefor serving and filing interrogatories.” (Coy v. Super. Ct. (1962) 58 Cal.2d 210, 220.) Here, the Court of Appeal did exactly that, imposing a “good cause” requirementfor responses to interrogatories that even Marshalls concedes does not exist. (Marshalls’s Ans. pp.18-19.) Ata minimum, then, the lower court abusedits discretion on this issue. Amici also do not showthat this error is harmless, as the lower court’s shifting of burden to Williams to show good cause wasdecisive. (See Williams, supra, 236 Cal.App.4th at p. 1156 [denying discovery because Williamsfailed to show good causefor contact information of employees statewide].) Amici also fail to identify case law that speaks to the facts here. Their citation to cases such as Calcor Space Facility, Inc.v. Super. Ct. (1997) 53 Cal.App.4th 216, a commercial case where the dispute centered on a demandfor inspection of documents 20 and what a subpoenafor such documents must describe— provide no aid to them. (See Opng.Brief at p. 22 [distinguishing Calcor.) Another of Amici’s cases, Irvington-Moore, Inc. v. Super. Ci. (1993) 14 Cal.App.4th 733, addressed the production of insurance policies in a personal injury action and dealt with inapposite statutory provisions relating to discovery of insurance coverage. (Id. at pp. 737.) The court actually acknowledged that the court’s discretion is tempered by “the limits expressed by the Legislature” and theliberal policies favoring discovery of relevant information as discussed above, and found the discovery warranted. (/d. at pp. 738-39.) Amici furthercite to statutory provisions which,like the cases they cite, simply provide for basic principles such as the trial court’s managementof discovery. !° Amici ignore on-point cases, cited by Williams,reversing trial courts for abusing their discretion when they deny _ discoverable contact information. (See, e.g., Lee v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325, 1338 [finding “there can be no question the trial court abusedits discretion by denying the motion to compel disclosure of independent contractor names and addresses throughthe use ofthe opt-out procedure proposed by the plaintiff’]; Puerto, supra, 158 Cal.App.4th 1242, 1254 [finding the trial court abused its discretion in denyingplaintiffs a '0 (See RLC Brief at p. 5; see, e.g., Civ. Proc. Code § 2017.020(a) [protective order may issueto limit discovery unlikely to lead to discovery of admissible evidence]; Id. at § 2019.030 [protective order mayissueto restrict duplicative or cumulative discovery method]; Civ. Proc. Code § 2019.020(b) [a party mayfile a motion to have discovery sequenced].) 2] “routine and essential part of pretrial discovery”—the contact information for nonparty employees.); see also Opng.Briefat p. 12-15.) Thus, Amici’s (and Marshalls’s) generic invocation of the trial court’s discretion does nothing to overcome the body of case law holding that a trial court abusesits discretion by refusing to permit discovery of the names and addressesofpotential witnesses. B. Amici Fail To Justify The Trial Court’s Denial of Discovery, Which Is Wholly Unsupported By The Facts Of The Case 1. The Trial Court Did Not Merely “Structure”or “Sequence” The Steps For Discovery But Denied Discovery In The First Instance Amici contend that the rulings below merely sequence or structure discovery rather than outright deny discovery. (See, e.g., [ADC Brief at pp. 6-8; RLC Brief at pp. 5-6.) However, conditioningroutine discovery on evidentiary proofof the ultimate merits of the allegations is not merely “sequencing” discovery steps for the convenience of the parties. Rather, the courts below denied over 99% of the discovery Williams requested and fashioned an unprecedented merits hurdle prohibiting the rest of the discovery by requiring Plaintiff first to present knowledge of statewide practices without any opportunity to conduct statewide discovery. As a practical matter this hurdle will be nearly impossible to overcome, which is why similar arguments have been roundly rejected by the courts. (See Alch v. Super. Court (2008) 165 22 Cal.App.4th 1412, 1429 [Real parties in interest’s argumentis, in effect, a claim that, because privacy interests are involved, the writers must prove that the data they seek will prove their case before they may haveaccess to the data. But there is no support in law,orin logic, for this claim.”].)!! PAGAplaintiffs would not be able to “prove” statewide allegations in thefirst instance, priorto discovery, given that employers have exclusive access to such employeeinformation and thus retain an unfairlitigation advantage. (See, e.g., Crab Addison v. Superior Court (2008) 169 Cal.App.4th 958, 968; Puerto, 158 Cal.App.4th at p.1256; Pioneer Elecs. (USA), Ine.v. Superior Court (2007) 40 Cal.4th 360, 374.) Moreover, proving Labor Codeviolationsis not limited to a defendant-employer’s written policies, and can be demonstrated through the employer’s practices and implementationof certain policies. (See, e.g., Sav- On Drug Stores, Inc. v. Super Ct. (2004) 34 Cal.4th 319.) To that end, a properinvestigation of Marshalls’s labor law violations ' See also W. Pico Furniture Co. of Los Angeles v. Super. Ct. (1961) 56 Cal.2d 407, 419 fn. 4 [“[T]he fact that a triable issue has not yet been determined cannot barthe disclosure of information soughtfor the very purposeof trying that issue.”]; Pacific Tel. & Co. v. Super. Ct. (1970) 2 Cal.3d 161, 174) [finding the requested pretrial discovery warranted when “the nature of the facts that will be relevant and admissible at trial cannot accurately be determined at the pretrial stage of application for discovery’]; see also Guthrey v. California Dept. of Corrections and Rehabilitation (E.D.Cal. June 27, 2012, No. 1:10-cv-02177- AW-BAM) 2012 WL 2499938, *2 fn. 1 [“The Court, however, does not consider the underlying merits of Plaintiffs claims in evaluating a motion to compel.”].) would surely lead Williamsto interview fellow aggrieved employees that he already represents statewide. These witnesses and affected parties would have direct information concerning the employer's day-to-day practices and implementation ofits policies. Uskanian, supra, 59 Cal.4th at p. 360.) The courts below turn the logical sequence of discovery—investigation, then proof—upside down by requiring Williamsto prove that violations were committed against these employees before he is permitted to contact them. This upsets the policies behind both the Civil Discovery Act and PAGA andcannot be countenanced. Furthermore, Amicifail to distinguish the case law cited by Williamsin earlier briefing establishing that class member contact informationis routinely disclosed at the outset of the case. (See, e.g., Pioneer, Crab Addison, Puerto.) Amici also fail to cite any contrary authority on point. Amici cite to California Code of Civil Procedure section 2019.020(b), yet that provision pertains to discovery that will already take place and puts the onus on the party who wishesto have that discovery sequenced (Marshalls) by filing a motion to support such sequencing. (Civ. Proc. Code § 2019.020(b) [“[O]n motion andfor good cause shown, the court may establish the sequence and timingof discovery for the convenience of parties and witnesses and in the interests of justice.”].) The other cases Amicicite are also unavailing, as they pre-date PAGA and simply standfor the general proposition that courts have the powerto bifurcate issues. (See, e.g., Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496; Hortonv. Jones (1972) 26 Cal.App.3d 952.) As bifurcating PAGA actionsis 24 contrary to Pinkerton and the PAGA statutory design as explained above, these argumentsare meritless. 2. The Trial Court’s Order Is Disconnected From The Record In This Case There are several ways in which the rulings below are not groundedin the facts of this case, which Amici and Marshalls cannot and do notresolve. First, in affirming the trial court’s order, the Court of Appealfailed to give any weight to a PAGA plaintiffs status as a proxy for the state’s labor law enforcement agencies. As this Court has held, Williams’s role as agent of the state in prosecuting Labor Codeviolations “is not merely semantic” and encompassesthe statewide violations alleged in his complaint. Uskanian, supra, 59 Cal.4th at p. 388.) As a result, discovery cannot be geographically confined to one Marshalls location, as the trial court ordered. To label Williams’s claim as “only a parochial claim,” as the Court of Appeal did, only reinforces that the decision below failed to give proper consideration to what a PAGAaction is, according to both the statute and underthis Court’s precedents.!2 (Williams, supra,236 Cal.App.4th at p. 1159.) Several amici wrongly argue that the state itself, had it taken up its own investigation, would face similarrestrictions in their investigation. (See, e.g., RLC Brief at pp. 8-11; IADC Brief '2 To be sure, the Court of Appealalso erroneously found Williams's allegations to be localized to the one Costa Mesa store, despite the fact that Williams's complaint alleges statewide Labor Code violations. (See Williams, supra, 236 Cal.App.4th at p. 1147; see, e.g., PA 9-17, |] 19, 42; 47, 54.) 25 at pp. 12-15.) For example, Amicus IADCfalsely contends that the declaration of Miles Locker,raised by Williamsin support of his motion to compel further responses, “illustrates the similarities betweenthe trial court’s order and a typical State labor investigation.” (IADC Brief at p. 9.) This is belied by Locker’s testimony, in which he attested to the Division of Labor Standards Enforcement’s (“DLSE”) broad authority in investigating Labor Codeviolations. (See PA 156-161.) Locker explained that, for investigations of employers with multiple employmentlocations throughout California, DLSE deputies “are instructed to obtain employmentrecords for... all locations” to determine “whetherthe potential violations are localized to one location or systemic throughoutallof the employer’s California locations.” (PA 160, J 11.) This is because “DLSE enforcement policy is to determine compliance on a Statewide levelas to employers with multi-location operations.” (PA 161, {| 13.) This is in line with the DLSE’s powerto “[i]nvestigate and ascertain the wages of all employees, and the hours and working conditions of all employees employed in any occupation in thestate.” (Cal. Lab. Code § 1193.5(a).) As explained by Locker, as part of the Labor Commissioner’s investigation into an employer’s laborpractices, the State will routinely obtain discovery from numerous employer locations at the outset of the case. According to Locker, state deputies will typically obtain a sampling of records from those 3 Locker served in the Division of Labor Standards Enforcement (““DLSE”) for sixteen years and held positions such as Chief Counsel to the Labor Commissioner. (See PA 156-161.) 26 numerous locations. (PA 160, 4 11 [obtaining all employment records to determineif potential violations are localized or systemic “may be donebyfirst sampling records for multiple locations, and if the sampled records reveal systemic Statewide violations, to obtain complete recordsfor all locations within the State”[emphasis added].) Thus, Locker’s testimony exposes the falsity of [ADC’s claim that discovery in an action by the state would be “virtually identical to what the trial court has done with its discovery order,” which limited discovery solely to records from one Costa Mesa Marshalls store. (IADC Briefat p. 10.) Second, the order below improperly raises the expense of employee contact information discovery as a justification for denyingit, despite the complete absence of any evidence in the record that Marshalls would incur great expense in producing the contact informationof its own employees. (See PA 229; Williams, supra, 236 Cal.App.4th at p. 1157.) While Amici decry the supposedrisingcosts oflitigation and discovery abuse generally, none of them have introduced any evidence suggesting that production of employee contact information would be exorbitantly costly. (See, e.g., CAA Brief at p. 12.: NAM Briefat p. 18; [ADC at p. 13.) Overheated suggestions that “expansive discovery” “can be a ‘cancer’ on litigation” (see NAM Briefat p.12) offer little insight into the discovery here. Generally, the costs of producing employeecontactlists should be minimal, as suchlists are regularly produced in precertification discovery and forclass settlements without exerting any burden on employers. For example, none of the 27 Pioneerline of cases found the costs of discovery of contact information a reason to deny such discovery. Employers such as Marshalls are in sole possession of that information and are in fact statutorily required to keep such records. (Cal. Lab. Code § 1174(c).) With records stored electronically, generating a list of contact information for one store or for 129 stores can likely be done with a few keystrokes. Moreover, neither Marshalls nor Amici have introduced any evidence of such expense, as Williams discussedin his briefing and Amicifail to refute. (See Reply Brief at pp. 8-9). Certainly, as there has been no such showing on Marshalls’s burden and expenseor any showing here, there is no valid objection to discovery on this basis. (See W. Pico F;urniture, 56 Cal.2d at p.417.) C. The Order Below,IfAffirmed, Would Result In A Proliferation Of Post-Deposition Discovery Motions And Thereby Frustrate TheSelf- Execution Of Interrogatories Amici and Marshalls also ignore the practical ramifications of the Court of Appeal’s ruling. If allowed to stand, the order would upend the “central precept” of the Civil Discovery Act: that “discovery be essentially self-executing.” (Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1281.) “A self-executing discovery system is ‘one that operates without judicial involvement.” (Id.) “Becausediscovery is a largely self-executing enterprise, in which the parties are expected to, and do, resolve mostof their differences without judicial involvement,it is important that the rules governingit be clear.” (EmersonElec. Co. v. Super. Ct. (1997) 16 Cal.4th 1101, 1118.) 28 PAGAactions would no longer be self-executingif the order below is affirmed. Going forward, in every PAGAaction where contact information is sought, a PAGA plaintiff mustfirst sit for deposition and make somerequisite evidentiary showing regarding the merits of the allegations. Disputes about whether the PAGAplaintiff satisfied his burden would be de rigueur. Is testifying to hearsay from other employees who've experienced denial of meal breaks sufficient? Is producing a written policy sufficient, even if it is unclear whether other stores implemented that policy? Must an employer’s unlawful conduct be personally observed by the PAGA plaintiff before it is given credence for the purposes of obtaining contact information? The order below would surely spark a cottage industry of discoverylitigation, creating a newspecies of discovery motionsfor the State’s overburdenedtrial courts to resolve. (Cf. Clement, supra, 177 Cal.App.4th at pp. 1291-1292 [“Conduct frustrates the goal ofa self-executing discovery system when it requires thetrial court to becomeinvolved in discovery because a dispute leads a party to movefor an order compelling a response.”].) Hl. THE DISCLOSURE OF CONTACT INFORMATION OUTWEIGHS THIRD PARTY PRIVACY INTERESTS UNDER THE HILL TEST A. None Of The Amici Can Show That Employees HaveA Heightened Expectation Of Privacy, MuchLess A Serious Invasion Of Privacy None of Amici rebut William’s showing that employees have a reduced expectation of privacy regarding the disclosure of contact information to an employee-plaintiff alleging employment law violations. (See Puerto, supra, 158 Cal.App.4th at pp. 1252- 29 1253, 1254; Belaire-West Landscape v. Superior Court (2007) 149 Cal.App.4th 554, 561 [“Just as the dissatisfied Pioneer customers could be expected to want their information revealed to a class action plaintiff who might obtainrelief for the allegedly defective DVD players[citation omitted], so can current and former Belaire-West employees reasonably be expected to want their information disclosed to a class action plaintiff who may ultimately recover for them unpaid wagesthat they are owed.”].) In County of Los Angeles v. Los Angeles County Employee Relations Commission (2013) 56 Cal.4th 905, 928 this Court cited Belaire-West’s analysis with approval when discussing employee expectations of privacy. County of Los Angeles addressed different facts, where non-union employees have “a somewhat enhanced privacy expectation” regarding their contact information when sought by a union.'4 (Ibid.) But there is no such heightened privacy expectation for the typical case of an employee-plaintiff seeking other employees’ contact information. In such a case, the Court “observed that the rules ofcivil discovery generally permit plaintiffs to discover contact information for potential class membersin order to identify additional parties who mightassist in prosecuting the case.” (Ud. at p. 930.) - As there is no heightened expectation of privacy, there is also no serious invasion of privacy of nonparty employees’ rights. ‘The Court noted non-union employees’ privacy expectation was reducedin light of the commonpractice of other public employers giving unions such information. (City of Los Angeles, supra, 56 Cal.4th at 928.) Amici cannot validly argue that there is a serious invasion of privacy in disclosure of employee contact information (see, e.g., PrometheusBriefat p. 12), when the Puerto line of cases specifically address this point and conclusively find otherwise. (See Puerto, supra, 158 Cal.App.4th at pp. 1252-1253, 1254; Belaire-West, supra, 149 Cal.App.4th at p. 562 [finding disclosure of employee contact information with an opt-out notice “presents no serious invasion of their privacy”].) This Court recently reaffirmed this finding in the class action employmentcontext, citing the cases Williamsrelies upon. (See County ofLos Angeles, supra, 56 Cal.4th at p.930 [citing with approval Crab Addison, Lee, Puerto, Alch, and Belaire- West].) In so doing, this Court emphasizedthat “it is only under unusual circumstances that the courts restrict discovery of nonparty witnesses’ residential contact information.” dd. [quoting Puerto, supra, 158 Cal.App.4th at p. 1254].) Applying that principle to the unique facts before it, where the actions of employees who had chosen notto join a union and declined in the pastto give their contact information signified “a more significant invasion of privacy than disclosure in the class action context” Ud. at p. 930), this Court in County of Los Angeles nonetheless found the information should be disclosed. (Id. at p. 911.) Given that this Court ruled that contact information must be disclosed under facts with far more serious privacy interests at stake, Williams requested discovery, which is “not particularly sensitive,” should also be disclosed. (Belaire-West, supra, 149 Cal.App.4th at pp. 561-562.) Tacitly conceding that Marshalls’s employees’ privacy interests are not particularly strong here—certainly not any that could rise to a serious invasion of privacy—Amicus TEG argues that this Court bypass the constitutional test applied in Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1.1 (See TEG Brief at p. 5.) Under TEG’s approach, solong as thereis any modicum ofprivacy interest involved, the Court would skip the analysis relating to the expectation of privacy or whether thereis a serious invasion of privacy and proceeddirectly to a balancing of interests. (Id.) No authority supports TEG’s modified Hill test. Loderv. City of Glendale (1997) 14 Cal.4th 846, which TEG cites as an example of this so-called more flexible approach, reaffirms that the privacy analysis must turn on the importance of the constitutionally protected privacy interest. (Id. at pp. 891-95.) Indeed, Loder stated that the “three ‘elements’ set forth in Hill properly must be viewed simply as ‘threshold elements’ that may be utilized to screen out claims that do not involve a significant intrusion on a privacy interest protected by the state constitutional privacy provision.” (Id. at p. 893.) As Williams demonstratedin prior briefs, Hill screens out Marshalls’s claims ' As Williamsdiscussedinhis briefing, the Hill test includes three prongs, (1) a claimant must possess a legally protected privacy interest, (2) there must be a reasonable expectation of privacy, and (3) the invasion of privacy must be serious. (See Hill, supra, 7 Cal.4th at pp. 35-37.) Once this criteria for an invasion of a privacy interest is met, the interest then must be measured in a “balancing test” against other competing or countervailing interests. (Id. at p. 37.) since they do not involve a significant intrusion into a privacy interest. Loder does not support a departure from Hill. Moreover, the viability of the Hill test is not at issue, as this Court in Pioneerfollowed Hill’s test without question and withoutcitation to the 1997 Loderdecision. Nor did County of Los Angeles open up Hill to “flexible” interpretations. (See TEG Brief at p. 5.) County of Los Angeles followed the steps in Hill and then proceeded to a balancing test, as it found that “[blecause the County made a sufficient showingon theessential elements of a privacyclaim,[it would] next consider whether the invasionof privacy is justified because it would further a substantial countervailinginterest,” citing Hill. (County ofLos Angeles, supra, 56 Cal.App.4th at p. 930.) The Puerto line of cases also followed the steps in Hill without any significant departure. Other Amici’s argumentsalso fail. Instead of addressing the relevant case law, Amicus CAA cites to inapposite statutes protecting consumers’ privacy interests from commercial or politicalsolicitation and other general privacy laws allowing for confidentiality in medical information, birth and death certificates, and computerized personal information. (See CAA Brief at pp. 12-17.) CAA’s sweeping accountof privacy laws sidesteps the directly applicable Pioneer and Puerto, failing to rebut the core point: that, under those cases, employees have a reducedright to privacy when another employee has alleged company-wide violations. B. Amici Fail To Show That A Balance Test, If Applied, Should Tip In Favor Of Nondisclosure G o e o 1. The Hill Test Would Tip In Favor Of Disclosure To be clear, neither Marshalls nor Amici have established a heightened privacy interest or that disclosure of contact information would cause a serious invasion of privacy. As such, no balancing test is needed pursuant to Hill. (Hill, supra, 7 Cal.4th at p. 37; see also Pioneer, supra, 40 Cal.4th at p. 373 “[Defendant’s] failure to demonstrate that its customers entertained a reasonable expectation of privacy, or would suffer a serious invasionof their privacy, could end our inquiry as these elements are essential to any breach of privacy causeof action under Hill before any balancingof interestsis necessary.”]: Puerto, supra, 158 Cal.App.4th at p. 1256 [“[W]hen the court concludes that there is no serious invasion of privacy no balance of opposing interests is required.”].) Nonetheless, if a balancing test were needed, the interests would tip in Williams’s favor. As Williamsis seeking information concerning other aggrieved employeesin his capacity as a proxy for the State, the scope of privacy interests and balancing must be analyzed from this perspective. “Because at stake here is the fundamental public policy underlying California’s employmentlaws,” courts have found that “the balance of opposing interests here tilts even more in favorof the court’s disclosure.” (Belaire-West Landscaping, Inc. v. Super. Ct. (2007) 149 Cal.App.4th 554, 562: see also Reply Brief at pp. 29-31.) Any privacy interests in being “outed” as retail store employees are minimal and do not tip the balance against disclosure, as may other more serious invasions of privacy. (See, e.g., Puerto, supra, 158 Cal.App.4th at p. 1254 [“[TJhe dangers of being ‘outed’ as individuals who workat a grocery store cannot be equated with the impingementof associational freedom likely to occur when, as in Planned Parenthood [Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347], the disclosure identifies the individualasassisting in the operation of an abortion clinic.”].) Employees at Marshalls generally fill positions where they are viewed by the public on a daily basis. They have no expectation that the contact information they gave to their employer would be shielded from agents of the government responsible for enforcing their statutory rights, and may expect that it be disclosed for such purposes. (Belaire-West, supra, 149 Cal.App.4th at p. 561.) Amicifail to balance the policies favoring enforcement of employment laws with any privacy interest. Amicus Prometheus, for instance, premisedits “balancing test” on the erroneous proposition that Williams servesonly his individualinterest at the outset of his PAGA case andtherefore has no “legitimate interest” in communicating with the aggrieved employees he represents. (See, e.g., Prometheus Brief at p.17 (“compelling disclosure of employee names and contact information on a statewide basis would furtherno legitimate interest”].) This failure to account fora litigant’s discoverable interest renders Prometheus’s test invalid. Prometheus’s reliance on Life Technologies v. Superior Court (2011) 197 Cal.App.4th 640, to support a “compelling need” test resulting in nondisclosure, is misplaced. Life Technologies was not a representativeorclass action case and involved only a single plaintiff who sued on his own behalf for wrongful termination, seeking far more invasive information from nonwitness employees than just contact information, such as the employees’ ages at termination and reasonsfor termination, as well as a description of severance benefits. (Id. at pp. 648, 652 (“The interrogatories effectively seek the disclosure of confidential, personnel records of nonwitnessthird parties.”].) Life Technologies is readily distinguishable on these points, as well as on the fact that the individual plaintiff sought third-party nonwitness informationfor a statistical analysis to prove disparate impact, when he could obtain the information through less invasive means. (Id. at p. 649.) Amici also cite to several nonbinding federal district court cases to argue that the privacy balancing necessitates disclosure in only onefacility. (PrometheusBrief at pp. 21-23.)!6 But these ‘6 For example, Amici rely on Nguyen v. Baxter Healthcare Corp. (C.D.Cal. 2011) 275 F.R.D. 503, which is distinguishable as the discovery at issue in that case waslimited because the plaintiff conceded that the defendant had produced evidence of company-widepolicies consistent with California law and gave no reason for why discovery in other stores was needed beyond plaintiffs counsel’s idea that it was just “common sense,” which not surprisingly failed to justify the discovery requested. (/d. at p. 508.) They also cite other cases that, as discussed below, use federal class action concepts not relevant here, such as Martinet v. Spherion Atlantic Enterprises, LLC (S.D.Cal. June 23, 2008, No. 07cv2178) 2008 WL 2557490, where the defendant “argu[ed] that the Plaintiff is not entitled to state-wide discovery absent a showing of Rule 23 Class-Action requirements.” (/d. at p. *1; see also Franco v. Bank ofAmerica (S.D.Cal. Dec. 1, 2009, No. 09cv1364-LAB (BLM)) 2009 WL 8729265,*3 [“plaintiffs bear the burden of showing that such discoveryis likely to produce federal discovery standards and the casescited are based on Federal Rule of Civil Procedure 23 not applicable here and contrary to California case law that (1) allows for discovery at the precertification stage prior to proving class elements (see Atari, Inc. v. Super. Ct. (1985) 166 Cal.App.3d 867, 869-870); and (2) finds that PAGAplaintiffs need notsatisfy class certification requirements. (See Arias, supra, 46 Cal.4th at p. 984.) Ina state court action, these federal cases must give way to state cases that finds such information the “starting point” of discovery and discoverable undera balancingof interests. (See Puerto, supra, 158 Cal.App.4th at p. 1250.) Finally, like Marshalls, Amici struggle to distinguish actual on-point authority such as Crab Addison, Belaire- West, Puerto, and Lee, focusing on irrelevant distinctions such as the language used on notice forms!’ or that Pioneer involved a consumer substantiationof the class allegations”); Colemanv. Jenny Craig, Inc. (S.D.Cal. June 12, 2003, No. 11-cv-1301-MMA (DHB)) 2013 WL 2896884 [same].) '7 These cases stand for the proposition that employee contact information must be disclosed. Thevalidity of that proposition is unaffected by the individualfactual distinctions between those cases and this one. Indeed, in those same cases, the courts observe certain factual distinctions with precedents only to brush them asideas irrelevant to the holding. The court in Crab Addison, for instance, noted the factual differences between that case and Puerto. (Crab Addison, supra, 169 Cal.App.4th at p. 969 [noting that the employer in Puerto disclosed witness identities but sought to protect the addresses or telephone numbers, and that there were priorrelease forms in Crab Addison where employees indicated preferences for restricting disclosure of contact information].) But the court specifically “attach[es] no great significance”to this, and finds 37 dispute. (See Prometheus Brief at pp. 17-20, 23-24.) Of course, courts post-Pioneercite to and apply Pioneer in the employment context, often discussing Pioneer’s application in depth. (See, e.g., Puerto, supra, 158 Cal.App.4th at pp. 1250-1259.) This puts to rest the argument that Pioneer is somehow limited to consumercases. 2. Amicus The Employers Group’s Proposed Test Is Unworkable A viable test already exists for analyzing privacy interests with respect to discovery of contact information, as articulated in Aull and applied in Pioneer, and repeatedly used for discovery of employee contact information in numerous intermediate court decisions thereafter. Amicus TEG nonetheless would like this Court to ignore this valid case law and instead apply its own unworkable test that would favor employer interests. As discussed above, supra, Section IIJ.A., TEG wants to avoid applying the controlling Hill test in favorof a test that skips steps two and three (whether there is a reasonable expectation of privacy and whetherthere is a serious invasion of privacy) and instead goes directly to a balancing test. (TEG Brief at pp. 4-5.) TEG undoubtedly manufactured this new test because applying the actual frameworkin Hill (as Pioneer, Puerto, and their progeny performed) results in a clearreversal of the order below. TEG seeks to do away with the weighingof privacy interest because, underthe current test, employees’ reduced that “[uJnder Puerto,” disclosure was proper. (Id. at pp. 975.) The fact that Puerto dealt with slightly different facts or that Pioneer was a consumercase was not determinative. expectation of privacy as to their contact informationis dispositive. Indeed, TEG admits that “[i]n Hill, this Court stated that a plaintiff bringing an affirmative claim for an invasion of privacy must meetthefirst three requirements before the court can balance countervailing interests.” (TEG Brief at p. 4 [quoting Mill.) TEG’s “moreflexible approach” to Hill (id. at p. 5) completely jettisons the core analysis: whether there is a sufficient constitutionally protected privacy interest at stake that would override a litigant’s interest in relevant discovery: Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actualorpotential impact to constitute an egregious breach of thesocial norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy. (Hill, supra, 7 Cal.4th at p. 37.) As Pioneer describes Hill, “we have explained thatthe right of privacy protects the individual’s reasonable expectation of privacy against a serious invasion.” (See Pioneer, supra, 40 Cal.4th at p. 370 [emphasis in original].) TEG’s new test assumes that privacy interests do override the litigant’s interests at the outset. (TEG Briefat pp. 11-13.) Goingdirectly to a three-step “balancing test,” TEG simply posits that a PAGAplaintiff represents only his individualinterests until he proves otherwise (step 1), after which he onlyrepresents “localized” employees until proven otherwise (step 2), and only then would he represent other employees statewide (step 3). (TEG Brief at pp. 15-23.) TEQ’s edifice is premised on the sameerroras the court below, assuming that a PAGAplaintiff must first make some evidentiary demonstration before he can even qualify to represent the state and other employees. As explained above, this contravenes PAGA’sstatutory language and purpose. Indeed, this use of a modified Hill framework is merely a fig leaf, simply another way to erect the same preliminary merits hurdles erected by the courts below. ‘While many of TEG’s flawed arguments are already addressed above, several key errors require a responsehere. TEG claims that Williams could not proceed in a representative PAGAaction without establishingliability using commonproof. !8 (TEG Brief at pp. 21-22.) But uniform policies are not required for a defendantto be liable for PAGA penalties. (Plaisted v. Dress Barn, Inc., (C.D.Cal. Sep. 20, 2012, No. 12-01679-ODW) 2012 WL 4356158, *2 [“Every PAGAaction in some way requires some individualized assessment regarding whether a LaborCode violation has occurred.”].) While a PAGAplaintiff could prove Labor Code violations by a uniform or commonpractice, nowhere in the PAGAstatute is there a required showing of uniformity. (See Cal. Lab. Code § 2699 et seq.) TEGalso strays far afield in asserting that Williams’s '8 Moreover, how Williams ends up proving lability laterin the action, such as through representative or statistical evidence, is not the same thing as requiring common proofpriorto discovery. Amicus erroneously conflates the two in an attempt to skip over the fact that Williamsis correct in arguing that class action concepts of commonality are not required in PAGAactions (whether or not Williams may chooseto later use representative proof for liability purposes). (See Arias, supra, 46 Cal.4th at 984.) 40 PAGAaction is somehownot a cognizable representative action. (See TEG Brief at pp. 21-22.) In support, TEG raises inapposite cases that pre-date the PAGA andare pre-Proposition 64, Unfair Competition Law (“UCL’) non-class representative actions for restitution, damages, and injunctive relief that do not even mention, muchless analyze, discovery principles, such as Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal. App. 3d 699 and South Bay Chevrolet v. General Motors Acceptance Corp. (1999) 72 Cal. App. 4th 861. These cases have nothing to do with discovery in a PAGAaction and concern irrelevant issues, such as the difficulty in determining the amountofrestitution owed individuals under the UCL. (See Bronco Wine, supra, 214 Cal.App.3d at pp. 720-721.) “Further, the individualized assessment necessary ina PAGAaction would come nowhere close to the individualized andfact-intensive restitution calculations necessary under the UCL,andis in fact an inherent aspect of a PAGA claim.” (Plaisted, supra, 2012 WL 4356158, at *2.) As such, TEG cannot question whetherthe actionis cognizable nor is such discussion relevant. At stake is whether Willliamsis entitled to the basic contact information of the aggrieved employee’s he represents statewide. TEC’s unworkable privacy test violates established privacy rules under Hill, would favor employers, and provides no reason for affirming the orderbelow. CONCLUSION For the foregoing reasons, the judgmentof the Court of Appeal should be reversed. 4] Dated: June 16, 2016 Respectfully submitted, Capstone Law APC 42 Glenn A. Danas Ryan Wu Robert Drexler Liana Carter Attorneys for Plaintiff and Appellant MICHAEL WILLIAMS CERTIFICATE OF WORD COUNT Counsel of record herebycertifies that, pursuantto the California Rules of Court, Rule 8.504(d)(1) and 8.490, the enclosed Appellant’s Reply Brief was produced using 13-point Century Schoolbook type style and contains 10,643 words. In arriving at that number, counsel has used Microsoft Word’s “Word Count’ function. Dated: June 16, 2016 Respectfully submitted, Capstone Law APC Glenn A. Danas Ryan Wu Robert Drexler Liana Carter Attorneysfor Plaintiff and Appellant MICHAEL WILLIAMS 10 11 12 13 14 15 16 17 |; 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES J am employedin the State of California, County of Los Angeles. I am overthe age of 18 and not a party to the within suit; my business address is 1840 Century Park East, Suite 450, Los Angeles, California 90067. On June 16, 2016, I served the document described as: APPELLANT’S CONSOLIDATED ANSWER TO AMICUS CURIAEBRIEFSontheinterested parties in this action by sendingon the interested parties in this action by sending [ ] the original [or] [] a true copythereofto interested parties as follows [or] as stated on the attached servicelist: See attached servicelist. [<1] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection and processing correspondence for mailing. Underthat practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage thereon fully prepaid at Los Angeles, California. [J] BY E-MAIL: I hereby certify that this document was served from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e-mail address or e-mail of record in this action. (“| BY FAX:I herebycertify that this document was served from Los Angeles, California, by facsimile delivery on the parties listed herein at their most recent fax numberofrecord inthis action. [LJ] BY PERSONAL SERVICE:I personally delivered the document, enclosed in a sealed envelope, by handto the offices of the addressee(s) named herein. [X]] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Underthat practice, overnight packages are enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or delivered by our office to a designated collection site. I declare under penalty of perjury underthe lawsof the State of California that the foregoingis true and correct. Executed on June 16, 2016, at Los Angeles, California. Greg Fisk LeFh- Type or Print Name J Senate PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Frederick Bennett 111 North Hill Street, Room 546 Los Angeles, CA 90012 via U.S. mail Superior Court of Los Angeles County: Respondent Robert Gordon Hulteng Joshua Joseph Cliffe Emily Erin O’Connor Scott D. Helsinger Littler Mendelson, PC 650 California Street, 20th Floor San Francisco, CA 94108-2693 via FedEx Marshalls of CA, LLC: Real Party in Interest Hon. William F. Highberger Los Angeles Superior Court 600 S. Commonwealth Avenue Los Angeles, CA 90005 via U.S. mail Respondent Mary-Christine Sungaila Martin Max Ellison Haynes & Boone, LLP 600 Anton Boulevard, Suite 700 Costa Mesa, CA 92626 via U.S. mail International Association of Defense Counsel: Amicus curiae Karen Kubala Mccay Pahl & Gosselin 160 West Santa Clara Street, Suite 1500 San Jose, CA 95113 via US. mail California Apartment Association: Amicus curiae Stephen D. Pahl Julie Elaine Bonnel Pahyl & McCay 225 West Santa Clara Street, Suite 1500 San Jose, CA 95113 via U.S. mail California Apartment Association: Amicus curiae Lisa Barnett SweenNatalja Marie FultonDouglas G.A. Johnston Prometheus Real Estate Group,Inc.:Amicuscuriae PROOF OF SERVICE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jackson Lewis P.C. 50 California Street, 9th Floor San Francisco, CA 94111 via U.S. mail Patrick Joseph Gregory Shook Hardy & Bacon, LLP One Montgomery Tower, Suite 2700 San Francisco, CA 94104 via US. mail National Association of Manufacturers: Amicus curiae Patrick Joseph Gregory Shook Hardy & Bacon, LLP One Montgomery Tower, Suite 2700 San Francisco, CA 94104 via U.S. mail American Coatings Association: Amicus curiae Patrick Joseph Gregory Shook Hardy & Bacon, LLP One Montgomery Tower, Suite 2700 San Francisco, CA 94104 via U.S. mail NFIB Small Business Legal Center: Amicus curiae Cynthia L. Rice California Rural Legal Assistance, Inc. 1430 franklin Street, Suite 103 Oakland, CA 94612 via US. mail California Rural Legal Assistance, Inc.: Amicus curiae Cynthia L. Rice California Rural Legal Assistance, Inc. 1430 franklin Street, Suite 103 Oakland, CA 94612 via U.S. mail California Rural Legal Assistance Foundation: Amicus curiae Cynthia L. RiceCalifornia Rural Legal Assistance, Inc.1430 franklin Street, Suite 103Oakland, CA 94612via U.S. mail National Employment LawProject and theLegal Aid Society: Amicus curiae PROOF OF SERVICE 10 11 12 14 15 16 17 18 19 20 21 22 24 25 26 27 28 Cynthia L. Rice California Rural Legal Assistance, Inc. 1430 franklin Street, Suite 103 Oakland, CA 94612 via US. mail Employment Law Center: Amicus curiae William Turley The Turley Law Firm, APLC 7428 Trade Street San Diego, CA 92121 via U.S. mail Consumer Attorneys of California: Amicus curiae Apalla U. Chopra O'Melveny & Myers 400 South HopeStreet Los Angeles,.CA 9007] via U.S. mail Employers Group: Amicus curiae Julie Rae Trotter Call & Jensen 610 Newport Center, Drive #700 Newport Beach, CA 92660 via U.S. mail Retail Litigation Center, Inc.: Amicus curiae Julie Rae Trotter Call & Jensen 610 Newport Center, Drive #700 Newport Beach, CA 92660 via U.S. mail California Retailers Association: Amicus curiae Julie Rae Trotter Call & Jensen 610 Newport Center, Drive #700 Newport Beach, CA 92660 via U.S. mail California Grocers Association: Amicus curiae Michael D. SingerCohelan Khoury & Singer605 "C" Street, Suite 200San Diego, CA 92101via U.S. mail California Employment LawyersAssociation: Amicus curiae PROOF OF SERVICE