Williams v. Super. Ct. , 3 Cal. 5th 531 ( 2017 )

Filed 7/13/17
IN THE SUPREME COURT OF CALIFORNIA
MICHAEL WILLIAMS, )
)
Petitioner, )
) S227228
v. )
) Ct.App. 2/1 B259967
THE SUPERIOR COURT OF )
LOS ANGELES COUNTY )
) Los Angeles County
Respondent; ) Super. Ct. No. BC503806
)
MARSHALLS OF CA, LLC, )
)
Real Party in Interest. )
____________________________________)
This is a representative action seeking civil penalties on behalf of the State
of California and aggrieved employees statewide for alleged wage and hour
violations. (See Lab. Code, § 2698 et seq., the Labor Code Private Attorneys
General Act of 2004, hereafter PAGA.) In the course of discovery, plaintiff
Michael Williams sought contact information for fellow California employees.
When the defendant employer, Marshalls of CA, LLC, resisted, Williams filed a
motion to compel. The trial court granted the motion as to the store where
Williams worked, but denied it as to every other California store, conditioning any
renewed motion for discovery on Williams sitting for a deposition and showing
some merit to the underlying action. Williams petitioned the Court of Appeal to
compel the trial court to vacate its discovery order. The Court of Appeal denied
the writ, and we granted review to consider the scope of discovery available in
PAGA actions.
In the absence of privilege, the right to discovery in this state is a broad
one, to be construed liberally so that parties may ascertain the strength of their
case and at trial the truth may be determined. Our prior decisions and those of the
Courts of Appeal firmly establish that in non-PAGA class actions, the contact
information of those a plaintiff purports to represent is routinely discoverable as an
essential prerequisite to effectively seeking group relief, without any requirement
that the plaintiff first show good cause. Nothing in the characteristics of a PAGA
suit, essentially a qui tam action filed on behalf of the state to assist it with labor
law enforcement, affords a basis for restricting discovery more narrowly. Nor, on
this record, do other objections interposed in the trial court support the trial court‘s
order. We reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Marshalls of CA (Marshalls) is a retail chain with stores throughout
California. Williams worked for Marshalls at its Costa Mesa store beginning in
January 2012. In 2013, Williams sued Marshalls under PAGA. The operative
complaint alleges Marshalls failed to provide Williams and other aggrieved
employees meal and rest periods or compensation in lieu of the required breaks.
(Lab. Code, §§ 226.7, 512, subd. (a).) According to the complaint, on a
companywide basis, Marshalls understaffed stores, required employees to work
during meal periods without compensation, and directed managers to erase meal
period violations from its time records. Marshalls also adopted a ―systematic,
company[]wide policy‖ to pay no premiums for missed breaks. Relatedly,
Marshalls failed to provide Williams and other aggrieved employees timely wage
payment or complete and accurate wage statements. (Lab. Code, §§ 204, 226,
subd. (a).) Finally, Marshalls adopted a policy and practice of requiring Williams
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and other aggrieved employees to carry out company business, such as bank runs
and travel for training sessions, without reimbursement. (Lab. Code, §§ 2800,
2802.)
PAGA authorizes an employee who has been the subject of particular
Labor Code violations to file a representative action on behalf of himself or herself
and other aggrieved employees. (Lab. Code, § 2699.) Pursuant to PAGA,
Williams‘s complaint seeks declaratory relief and civil penalties, to be shared
between Williams, other aggrieved employees, and the State of California. (Lab.
Code, § 2699, subd. (i).)
Early in discovery, Williams issued two special interrogatories asking
Marshalls to supply the name, address, telephone number, and company
employment history of each nonexempt California employee in the period March
2012 through February 2014, as well as the total number of such employees.
Marshalls responded that there were approximately 16,500 employees, but refused
to provide their information. It contended the request for contact and employment
information statewide was overbroad because it extended beyond Williams‘s
particular store and job classification; unduly burdensome because Williams
sought private information without first demonstrating he was aggrieved or that
others were aggrieved; and an invasion of the privacy of third parties under
California Constitution, article I, section 1. Williams moved to compel responses.
After a hearing, the trial court granted in part and denied in part Williams‘s
motion. The court ordered Marshalls to provide employee contact information,
but only for the Costa Mesa store where Williams worked, subject to a Belaire-
West1 notice designed to ensure protection of third party privacy rights and an
1 See Belaire-West Landscape, Inc. v. Superior Court (2007) 149
Cal. App. 4th 554.
3
equal sharing of costs by the parties. For the company‘s other approximately 130
stores, Williams was willing to accept information from a representative sample of
10 to 20 percent of employees, but the court denied the motion to compel. The
court left open the door to a renewed motion for discovery but required as a
condition of any motion that Williams ―appear for at least six productive hours of
deposition.‖ Finally, the court specified that in opposing a renewed motion for
discovery, Marshalls could rely on any portion of the deposition that it believed
showed the complaint was substantively meritless. Recognizing the discovery
motion forced it to render a decision in an uncharted area of law, the trial court
certified its order for immediate review and requested appellate guidance. (See
Code Civ. Proc., § 166.1.)
Williams sought writ relief from the denial of access to employee contact
information for all but one store. The Court of Appeal denied relief. It held that,
as the party seeking to compel discovery, Williams must ―set forth specific facts
showing good cause justifying the discovery sought‖ (Code Civ. Proc.,
§ 2031.310, subd. (b)(1)) but had failed to do so. In the alternative, the Court of
Appeal concluded that because third party privacy interests were implicated,
Williams ― ‗must demonstrate a compelling need for discovery‘ ‖ by showing ―the
discovery sought is directly relevant and essential to the fair resolution of the
underlying lawsuit.‖
We granted review to resolve issues of first impression concerning the
appropriate scope of discovery in a PAGA action.
DISCUSSION
I. Standard of Review
We review the trial court‘s grant or denial of a motion to compel discovery
for an abuse of discretion. (John B. v. Superior Court (2006) 38 Cal. 4th 1177,
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1186.) The statutory scheme vests trial courts with ― ‗wide discretion‘ ‖ to allow
or prohibit discovery. (Emerson Electric Co. v. Superior Court (1997) 16 Cal. 4th
1101, 1107, quoting Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355,
378.) A circumspect approach to appellate review of discovery orders ensures an
appropriate degree of trial court latitude in the exercise of that discretion.
That deference comes with two related caveats. First, ― ‗[t]he scope of
discretion always resides in the particular law being applied, i.e., in the ―legal
principles governing the subject of [the] action . . . .‖ Action that transgresses the
confines of the applicable principles of law is outside the scope of discretion and
we call such action an ―abuse‖ of discretion.‘ ‖ (Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal. 4th 747, 773.) An order that
implicitly or explicitly rests on an erroneous reading of the law necessarily is an
abuse of discretion. (See Haraguchi v. Superior Court (2008) 43 Cal. 4th 706,
711–712 & fn. 4.)
Second, trial courts issuing discovery orders and appellate courts reviewing
those orders should do so with the prodiscovery policies of the statutory scheme
firmly in mind. A trial court must be mindful of the Legislature‘s preference for
discovery over trial by surprise, must construe the facts before it liberally in favor
of discovery, may not use its discretion to extend the limits on discovery beyond
those authorized by the Legislature, and should prefer partial to outright denials of
discovery. (Greyhound Corp. v. Superior Court, supra, 56 Cal.2d at p. 383.) A
reviewing court may not use the abuse of discretion standard to shield discovery
orders that fall short: ―Any record which indicates a failure to give adequate
consideration to these concepts is subject to the attack of abuse of discretion,
regardless of the fact that the order shows no such abuse on its face.‖ (Id. at
p. 384; see Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal. 3d 161, 171.)
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II. The Movant’s Burden When Seeking to Compel Responses to
Interrogatories
In the absence of contrary court order, a civil litigant‘s right to discovery is
broad. ―[A]ny party may obtain discovery regarding any matter, not privileged,
that is relevant to the subject matter involved in the pending action . . . if the
matter either is itself admissible in evidence or appears reasonably calculated to
lead to the discovery of admissible evidence.‖ (Code Civ. Proc., § 2017.010; see
Davies v. Superior Court (1984) 36 Cal. 3d 291, 301 [―discovery is not limited to
admissible evidence‖].)2 This right includes an entitlement to learn ―the identity
and location of persons having knowledge of any discoverable matter.‖
(§ 2017.010) Section 2017.010 and other statutes governing discovery ―must be
construed liberally in favor of disclosure unless the request is clearly improper by
virtue of well-established causes for denial.‖ (Greyhound Corp. v. Superior
Court, supra, 56 Cal.2d at p. 377.) This means that ―disclosure is a matter of right
unless statutory or public policy considerations clearly prohibit it.‖ (Id. at p. 378.)
A party may use interrogatories to request the identity and location of those
with knowledge of discoverable matters. (Code Civ. Proc., § 2030.010.) To show
an interrogatory seeks relevant, discoverable information ―is not the burden of [the
party propounding interrogatories]. As a litigant, it is entitled to demand answers
to its interrogatories, as a matter of right, and without a prior showing, unless the
2 We explained in Emerson Electric Co. v. Superior Court, supra, 16 Cal. 4th
1101, that statements made in connection with the state‘s 1957 discovery act
(Stats. 1957, ch. 1904, p. 3322) concerning general discovery principles continue
to apply to the Civil Discovery Act of 1986 (Stats. 1986, ch. 1334, p. 4700),
―which retain[s] the expansive scope of discovery‖ previously contemplated
(Emerson Electric Co., at p. 1108). Such statements apply equally to 2004‘s Civil
Discovery Act, which reorganizes and carries forward without substantive change
the state‘s discovery rules. (Stats. 2004, ch. 182, § 61, p. 942 [―Nothing in this act
is intended to substantively change the law of civil discovery.‖].)
6
party on whom those interrogatories are served objects and shows cause why the
questions are not within the purview of the code section.‖ (West Pico Furniture
Co. v. Superior Court (1961) 56 Cal. 2d 407, 422; see Greyhound Corp. v.
Superior Court, supra, 56 Cal.2d at p. 388.) While the party propounding
interrogatories may have the burden of filing a motion to compel if it finds the
answers it receives unsatisfactory, the burden of justifying any objection and
failure to respond remains at all times with the party resisting an interrogatory.
(Coy v. Superior Court (1962) 58 Cal. 2d 210, 220–221.)
Accordingly, Williams was presumptively entitled to an answer to his
interrogatory seeking the identity and contact information of his fellow Marshalls
employees. Marshalls had the burden of establishing cause to refuse Williams an
answer. The trial court was limited to determining whether, for any objections
timely interposed, Marshalls had carried that burden. (See Coy v. Superior Court,
supra, 58 Cal.2d at p. 222; West Pico Furniture Co. v. Superior Court, supra, 56
Cal.2d at p. 414.)
Three Marshalls objections are at issue. First, Marshalls contends
Williams‘s request for statewide employee contact information ―is overbroad in
that it seeks information beyond the scope of permissible discovery in that it
extends to individuals outside of the position, job classification, and location, in
which Plaintiff worked.‖ Second, Marshalls argues the interrogatory ―is unduly
burdensome, in that Plaintiff is requesting private information about thousands of
third parties, without making a prima facie showing that he is an aggrieved
employee or that any aggrieved employees exist outside of the store where he
worked.‖ Third, Marshalls objects to the request ―to the extent it seeks private
information that is protected from disclosure by Article I section 1 of the
California Constitution without consent.‖
7
The hearing transcript and trial court order reflect that the court limited
discovery based on considerations of overbreadth and undue burden. The Court of
Appeal reasoned that privacy concerns offered additional justification for the
order. We consider each objection in turn.
III. Overbreadth
Marshalls asserts Williams exceeded ―the scope of permissible discovery‖
by requesting contact information for employees not sharing his position, job
classification, and store location. The trial court sustained the geographic
objection. As this objection involves no claim of privilege, whether contact
information for employees at other stores is discoverable turns in the first instance
on whether the request for it is ―reasonably calculated to lead to the discovery of
admissible evidence.‖ (Code Civ. Proc., § 2017.010.) Under the Legislature‘s
―very liberal and flexible standard of relevancy,‖ any ―doubts as to relevance
should generally be resolved in favor of permitting discovery.‖ (Pacific Tel. &
Tel. Co. v. Superior Court, supra, 2 Cal.3d at p. 173.)
A. Relevance
The operative complaint alleges Williams worked for Marshalls as a
nonexempt hourly employee in Costa Mesa, California, and that Marshalls also
employs other nonexempt hourly employees ―in various locations throughout
California.‖ The complaint seeks relief on behalf of Williams and other
― ‗aggrieved employees,‘ ‖ defined as ―current or former employees‖ of Marshalls
who were subject to one or more of the Labor Code violations described in the
complaint. According to the complaint, Marshalls failed to provide ―Plaintiff and
other aggrieved employees‖ meal and rest breaks, accurate wage statements,
timely payment of earned wages, and business expense reimbursement. Marshalls
―implemented a systematic, company[]wide policy‖ to pay no missed meal period
premiums and to cleanse time records of evidence of missed or noncompliant meal
8
periods. Marshalls also ―implemented a systematic, company[]wide policy to not
pay rest period premiums.‖ Marshalls ―had, and continue[s] to have, a policy and
practice of requiring employees, including Plaintiff and aggrieved employees‖ to
leave its stores to undergo training and to conduct company financial transactions,
as well as an ongoing ―policy of not reimbursing employees, including Plaintiff
and aggrieved employees, for said business-related expenses and costs.‖
On its face, the complaint alleges Marshalls committed Labor Code
violations, pursuant to systematic companywide policies, against Williams and
others among its nonexempt employees in California, and seeks penalties and
declaratory relief on behalf of Williams and any other injured California
employees. The disputed interrogatory seeks to identify Marshalls‘s other
California employees, inferentially as a first step to identifying other aggrieved
employees and obtaining admissible evidence of the violations and policies
alleged in the complaint.3 The Courts of Appeal have, until the decision in this
case, uniformly treated such a request as clearly within the scope of discovery
permitted under Code of Civil Procedure section 2017.010.
For example, in Puerto v. Superior Court (2008) 158 Cal. App. 4th 1242, a
precertification wage and hour class action, the plaintiff sought contact
information for thousands of the defendant‘s California employees. The trial court
granted a motion to compel provision of the information, subject to a requirement
that the employees opt in to disclosure. The Court of Appeal concluded plaintiff
3 Of course, the discovery may also fail to reveal any, or many, other
violations or unlawful policies, but that is an equally worthy end result. The
discovery statutes were intended to curtail surprises, enable each side to learn as
much as possible about the strengths and weaknesses of its case, and thereby
facilitate realistic settlements and efficient trials. (See Fairmont Ins. Co. v.
Superior Court (2000) 22 Cal. 4th 245, 253, fn. 2; Greyhound Corp. v. Superior
Court, supra, 56 Cal.2d at p. 376.)
9
was plainly entitled to the employee contact information, and even limiting
disclosure by imposing an opt-in requirement was an abuse of discretion. As the
court explained, ―[c]entral to the discovery process is the identification of potential
witnesses. ‗The disclosure of the names and addresses of potential witnesses is a
routine and essential part of pretrial discovery.‘ [Citation.] Indeed, our discovery
system is founded on the understanding that parties use discovery to obtain names
and contact information for possible witnesses as the starting point for further
investigations . . . .‖ (Id. at pp. 1249–1250; see, e.g., Crab Addison, Inc. v.
Superior Court (2008) 169 Cal. App. 4th 958, 967 [trial court properly ordered
disclosure of contact information for defendant‘s California employees; only in
― ‗unusual circumstances‘ ‖ will such discovery be restricted]; Lee v. Dynamex,
Inc. (2008) 166 Cal. App. 4th 1325, 1331 [in putative class action alleging wage
and hour violations following misclassification of workers as independent
contractors, it was an abuse of discretion not to compel disclosure of fellow
workers‘ contact information on the ground no class had been certified yet];
Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th at
pp. 560–562 [contact information for fellow employees in putative wage and hour
class actions is routinely discoverable].)
These cases correctly took to heart the lessons of our decision in Pioneer
Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, a putative
consumer class action, where we reversed limits the Court of Appeal had imposed
on plaintiff access to contact information for others he sought to represent. In the
course of addressing privacy objections and reconciling the competing interests at
stake, we explained that ―[c]ontact information regarding the identity of potential
class members is generally discoverable, so that the lead plaintiff may learn the
names of other persons who might assist in prosecuting the case.‖ (Id. at p. 373.)
Such potential class members will often qualify as ―percipient witnesses,‖ whose
10
contact information the discovery statutes explicitly make a ―proper subject[] of
. . . discovery.‖ (Id. at p. 374, italics omitted, citing Code Civ. Proc., § 2017.010.)
Limiting discovery would grant the defendant a monopoly on access to its
customers or employees and their experiences and artificially tilt the scales in the
ensuing litigation. (Pioneer Electronics, at p. 374.)
We recognize that in a particular case there may be special reason to limit
or postpone a representative plaintiff‘s access to contact information for those he
or she seeks to represent, but the default position is that such information is within
the proper scope of discovery, an essential first step to prosecution of any
representative action.
B. PAGA
Marshalls makes two arguments based on the nature of a PAGA action for
why the foregoing principles should not apply here. First, it contends the text of
PAGA reflects a legislative judgment that broad discovery in PAGA actions
should be limited until after a plaintiff has supplied proof of alleged violations.
Second, it contends the rationale of Pioneer Electronics and the Court of Appeal
decisions that have followed it is uniquely dependent on the class action context in
which those decisions were rendered, and different conclusions should be reached
in the context of a PAGA action.
The Legislature enacted PAGA to remedy systemic underenforcement of
many worker protections. This underenforcement was a product of two related
problems. First, many Labor Code provisions contained only criminal sanctions,
and district attorneys often had higher priorities. Second, even when civil
sanctions were attached, the government agencies with existing authority to ensure
compliance often lacked adequate staffing and resources to police labor practices
throughout an economy the size of California‘s. (Iskanian v. CLS Transportation
Los Angeles, LLC (2014) 59 Cal. 4th 348, 379; see Sen. Rules Com., Off. of Sen.
11
Floor Analyses, analysis of Sen. Bill No. 796 (2003–2004 Reg. Sess.) as amended
Sept. 2, 2003, pp. 4–5.) The Legislature addressed these difficulties by adopting a
schedule of civil penalties ― ‗significant enough to deter violations‘ ‖ for those
provisions that lacked existing noncriminal sanctions, and by deputizing
employees harmed by labor violations to sue on behalf of the state and collect
penalties, to be shared with the state and other affected employees. (Iskanian, at
p. 379; see Lab. Code, § 2699.)
As a condition of suit, an aggrieved employee acting on behalf of the state
and other current or former employees must provide notice to the employer and
the responsible state agency ―of the specific provisions of [the Labor Code]
alleged to have been violated, including the facts and theories to support the
alleged violation.‖ (Lab. Code, § 2699.3, subd. (a)(1)(A); see id., subd. (c)(1)(A)
[same].) If the agency elects not to investigate, or investigates without issuing a
citation, the employee may then bring a PAGA action. (Id., subd. (a)(2).)
Marshalls interprets the notice provision as imposing a requirement that an
aggrieved employee seeking to pursue civil penalties on behalf of other current or
former employees must have some modicum of substantial proof before
proceeding with discovery, a departure from the more general principle of Code of
Civil Procedure section 2017.010 that discovery is the means by which proof of
allegations is developed. The text does not support this view. Nothing in Labor
Code section 2699.3, subdivision (a)(1)(A), indicates the ―facts and theories‖
provided in support of ―alleged‖ violations must satisfy a particular threshold of
weightiness, beyond the requirements of nonfrivolousness generally applicable to
any civil filing. (See Code Civ. Proc., § 128.7.) The evident purpose of the notice
requirement is to afford the relevant state agency, the Labor and Workforce
Development Agency, the opportunity to decide whether to allocate scarce
resources to an investigation, a decision better made with knowledge of the
12
allegations an aggrieved employee is making and any basis for those allegations.
Notice to the employer serves the purpose of allowing the employer to submit a
response to the agency (see Lab. Code, § 2699.3, subd. (a)(1)(B)), again thereby
promoting an informed agency decision as to whether to allocate resources toward
an investigation. Neither purpose depends on requiring employees to submit only
allegations that can already be backed by some particular quantum of admissible
proof.
PAGA‘s standing provision similarly contains no evidence of a legislative
intent to impose a heightened preliminary proof requirement. Suit may be brought
by any ―aggrieved employee‖ (Lab. Code, § 2699, subd. (a)); in turn, an
― ‗aggrieved employee‘ ‖ is defined as ―any person who was employed by the
alleged violator and against whom one or more of the alleged violations was
committed‖ (id., subd. (c), italics added). If the Legislature intended to demand
more than mere allegations as a condition to the filing of suit or preliminary
discovery, it could have specified as much. That it did not implies no such
heightened requirement was intended.
Moreover, to insert such a requirement into PAGA would undercut the
clear legislative purposes the act was designed to serve. PAGA was intended to
advance the state‘s public policy of affording employees workplaces free of Labor
Code violations, notwithstanding the inability of state agencies to monitor every
employer or industry. (Iskanian v. CLS Transportation Los Angeles, LLC, supra,
59 Cal.4th at p. 379; Arias v. Superior Court (2009) 46 Cal. 4th 969, 980–981.) By
expanding the universe of those who might enforce the law, and the sanctions
violators might be subject to, the Legislature sought to remediate present
violations and deter future ones. These purposes would be ill-served by
presuming, notwithstanding the failure explicitly to so indicate in the text, that
13
deputized aggrieved employees must satisfy a PAGA-specific heightened proof
standard at the threshold, before discovery.
Alternatively, Marshalls argues the nature of a PAGA action distinguishes
this case from representative actions brought pursuant to formalized class action
procedures. Marshalls notes, correctly, that PAGA actions and certified class
actions have a host of identifiable procedural differences. PAGA does not make
other potentially aggrieved employees parties or clients of plaintiff‘s counsel, does
not impose on a plaintiff or counsel any express fiduciary obligations, and does
not subject a plaintiff or counsel to scrutiny with respect to the ability to represent
a large class.4 The discovery rights recognized in wage and hour class actions,
Marshalls argues, should only be coextensive with these protections.
However, nothing in Pioneer Electronics (USA), Inc. v. Superior Court,
supra, 40 Cal. 4th 360 or its progeny depends on these features to justify the
discovery ordered. Access to contact information will often be warranted even
before the adequacy of the named plaintiff and counsel‘s representation has been
vetted, a class certified, absent putative class members made parties, and
4 These duties are necessary in the class action context to protect absent
employees‘ due process rights. (See City of San Jose v. Superior Court (1974) 12
Cal. 3d 447, 463.) However, no similar due process concerns arise under PAGA
because absent employees do not own a personal claim for PAGA civil penalties
(see Amalgamated Transit Union, Local 1756, AFL-CIO v. Superior Court (2009)
46 Cal. 4th 993, 1003), and whatever personal claims the absent employees might
have for relief are not at stake (Iskanian v. CLS Transportation Los Angeles, LLC,
supra, 59 Cal.4th at p. 381 [―The civil penalties recovered on behalf of the state
under the PAGA are distinct from the statutory damages to which employees may
be entitled in their individual capacities‖]). (See also Sakkab v. Luxottica Retail
North America, Inc. (9th Cir. 2015) 803 F.3d 425, 436 [―Because a PAGA action
is a statutory action for penalties brought as a proxy for the state, rather than a
procedure for resolving the claims of other employees, there is no need to protect
absent employees‘ due process rights in PAGA arbitrations‖].)
14
heightened duties imposed. (See Crab Addison, Inc. v. Superior Court, supra, 169
Cal.App.4th at pp. 962, 969–975; Lee v. Dynamex, Inc., supra, 166 Cal.App.4th at
pp. 1337–1338; CashCall, Inc. v. Superior Court (2008) 159 Cal. App. 4th 273,
292–296; Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal.App.4th
at pp. 556, 562.) Even were we to assume, without deciding, that counsel owes a
fiduciary duty to absent class members from the moment a complaint is filed,
before certification (see Kullar v. Foot Locker Retail, Inc. (2011) 191 Cal. App. 4th
1201, 1206; In re GMC Pick-Up Truck Fuel Tank Products Liability Litigation (3d
Cir. 1995) 55 F.3d 768, 801), the existence of any such duty would supply neither
the rationale nor a necessary condition for discovery of the contact information of
those with potentially aligned interests.
While the differences between a class action and a PAGA action bear
minimal relation to the reasons fellow employee contact information is
discoverable, the similarities between these forms of action directly pertain. In a
class action, fellow class members are potential percipient witnesses to alleged
illegalities, and it is on that basis their contact information becomes relevant.
(Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 374;
Crab Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th at p. 969; Puerto v.
Superior Court, supra, 158 Cal.App.4th at p. 1254.) Likewise in a PAGA action,
the burden is on the plaintiff to establish any violations of the Labor Code, and a
complaint that alleges such violations makes any employee allegedly aggrieved a
percipient witness and his or her contact information relevant and discoverable.
(See Lab. Code, § 2699, subds. (c), (g)(1); Code Civ. Proc., § 2017.010; Sakkab v.
Luxottica Retail North America, Inc., supra, 803 F.3d at p. 438 [―The amount of
penalties an employee may recover is measured by the number of violations an
employer has committed, and the violations may involve multiple employees.‖].)
15
Next, absent fellow employees will be bound by the outcome of any PAGA
action (Arias v. Superior Court, supra, 46 Cal.4th at p. 986), just as absent class
members are bound (see Fireside Bank v. Superior Court (2007) 40 Cal. 4th 1069,
1074; Richmond v. Dart Industries, Inc. (1981) 29 Cal. 3d 462, 474). To allow
broad discovery of contact information in one type of representative action but not
the other, and impose unique hurdles in PAGA actions that inhibit communication
with affected employees, would enhance the risk those employees will be bound
by a judgment they had no awareness of and no opportunity to contribute to or
oppose.
Last, overlapping policy considerations support extending PAGA discovery
as broadly as class action discovery has been extended. California public policy
favors the effective vindication of consumer protections. (Pioneer Electronics
(USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 374.) State regulation of
employee wages, hours and working conditions is remedial legislation for the
benefit of the state‘s workforce. (Brinker Restaurant Corp. v. Superior Court
(2012) 53 Cal. 4th 1004, 1026–1027.) Discovery of fellow consumer or employee
contact information can be an essential precursor to meaningful classwide
enforcement of consumer and worker protection statutes. (Pioneer Electronics, at
p. 374; Crab Addison, Inc. v. Superior Court, supra, 169 Cal.App.4th at p. 968;
Puerto v. Superior Court, supra, 158 Cal.App.4th at p. 1256.) Similar state
policies animate PAGA. Representative PAGA actions ―directly enforce the
state’s interest in penalizing and deterring employers who violate California‘s
labor laws.‖ (Iskanian v. CLS Transportation Los Angeles, LLC, supra, 59 Cal.4th
at p. 387; see Arias v. Superior Court, supra, 46 Cal.4th at pp. 980–981.) Hurdles
that impede the effective prosecution of representative PAGA actions undermine
the Legislature‘s objectives. (See Iskanian, at p. 384.) It follows that in PAGA
cases, as in the class action context, state policy favors access to contact
16
information for fellow employees alleged to have been subjected to Labor Code
violations.
Both practical considerations and the statutory framework mitigate any
concerns Marshalls may have about the release of employee contact information to
a plaintiff and counsel lacking a fiduciary relationship with those employees and
thus under no formal obligation to act in their best interests. Practically, the
interests of plaintiff, counsel, and other potentially aggrieved employees are
largely aligned. All stand to gain from proving as convincingly as possible as
many Labor Code violations as the evidence will sustain, thereby maximizing the
recovery for aggrieved employees as well as any potential attorney fee award.
(See Lab. Code, § 2699, subds. (g)(1), (i).) Legally, a trial court may issue a
protective order conditioning discovery ―on terms and conditions that are just‖
such as requiring confidentiality and prohibiting use outside a given case. (Code
Civ. Proc., § 2030.090, subd. (c); see id., subd. (b).) Finally, PAGA settlements
are subject to trial court review and approval, ensuring that any negotiated
resolution is fair to those affected. (Lab. Code, § 2699, subd. (l)(2).)
In sum, Williams‘s interrogatory sought information within, not exceeding,
the legitimate scope of discovery. The trial court had no discretion to disregard
the allegations of the complaint making this case a statewide representative action
from its inception. The Court of Appeal likewise misread the complaint when it
described Williams‘s claim as ―parochial‖ and thus affording no basis for
statewide contact information. Nothing in the nature of PAGA renders the
interrogatory overbroad or justifies the trial court‘s order.
IV. Undue Burden
In the alternative, Marshalls argues the interrogatory is unduly burdensome
because it seeks contact information for thousands of employees without a prior
showing that Williams himself has been subject to Labor Code violations, or that
17
others have been. The trial court agreed, denying discovery until Williams had sat
for a deposition and expressly authorizing Marshalls to resist any future motion for
discovery with evidence the complaint‘s allegations were meritless.
A trial court ―shall limit the scope of discovery if it determines that the
burden, expense, or intrusiveness of that discovery clearly outweighs the
likelihood that the information sought will lead to the discovery of admissible
evidence.‖ (Code Civ. Proc., § 2017.020, subd. (a).)5 However, as with other
objections in response to interrogatories, the party opposing discovery has an
obligation to supply the basis for this determination. An ―objection based upon
burden must be sustained by evidence showing the quantum of work required.‖
(West Pico Furniture Co. v. Superior Court, supra, 56 Cal.2d at p. 417.) As the
objecting party, Marshalls had the burden of supplying supporting evidence, but in
response to Williams‘s motion to compel it offered none. Given this, the trial
court had nothing in the record upon which to base a comparative judgment that
any responsive burden would be undue or excessive, relative to the likelihood of
admissible evidence being discovered.6
In lieu of evidence, Marshalls contended as a legal matter that Williams
should be required to submit proof of his case before being allowed statewide
5 Such limits need not be all or nothing. Where the objection is one of undue
burden, trial courts should consider alternatives such as partial disclosure or a
shifting of costs before settling on a complete denial of discovery. (Greyhound
Corp. v. Superior Court, supra, 56 Cal.2d at p. 380.)
6 Marshalls‘s discovery responses did identify the number of employees for
whom information was sought but, while relevant, this information alone could
not establish the requisite undue burden without further evidence of the time and
cost required to respond. For example, depending on the nature of any computer
database Marshalls might maintain, providing information for 10,000 employees
might prove little different than for 1,000, or 100.
18
discovery. Accepting this argument, the trial court effectively held the pleading of
a statewide PAGA claim is insufficient to support discovery of statewide fellow
employee contact information without a further showing of cause. As we shall
discuss, however, the Code of Civil Procedure does not authorize a trial court to
interpose a proof of the merits requirement before ordering responses to
interrogatories in the absence of any evidence of the burden responding would
entail, and trial courts lack discretion to augment the limitations on discovery
established by the Legislature. (Sinaiko Healthcare Consulting, Inc. v. Pacific
Healthcare Consultants (2007) 148 Cal. App. 4th 390, 402.)
As a general matter, the statutory scheme imposes no obligation on a party
propounding interrogatories to establish good cause or prove up the merits of any
underlying claims. (See Code Civ. Proc., §§ 2017.010, 2030.010–2030.310.) In
affirming the trial court‘s order, the Court of Appeal justified the trial court‘s good
cause requirement by reference to authorities governing demands for inspection,
copying, testing, or sampling, which do require a good cause showing before
production may be compelled. (See Code Civ. Proc., §§ 2025.450, subd. (b)(1);
2031.310, subd. (b)(1); Calcor Space Facility, Inc. v. Superior Court (1997) 53
Cal. App. 4th 216, 223.) But those authorities have no application to
interrogatories. (See Code Civ. Proc., § 2030.300.)
Before this court, Marshalls concedes the statutory scheme does not support
the Court of Appeal‘s transplanting of a good cause requirement applicable only to
other methods of discovery to the interrogatories in this case. Marshalls reasons
instead that the trial court‘s imposition of a merits requirement can be justified
under Code of Civil Procedure section 2019.020. That provision sets out the
general rule that the various tools of discovery may be used by each party in any
order, and one party‘s discovery ―shall not operate to delay the discovery of any
other party.‖ (Id., subd. (a).) However, if a party shows ―good cause,‖ the trial
19
court ―may establish the sequence and timing of discovery for the convenience of
parties and witnesses and in the interests of justice.‖ (Id., subd. (b).) But
Marshalls did not file a section 2019.020 motion, and we thus have no occasion to
decide what showing might suffice to warrant a court order sequencing discovery.
Marshalls also contends the trial court had discretion, based on the
―extremely meager showing that plaintiffs‘ counsel has made in this case,‖ to
condition interrogatory responses on prior submission to a deposition and
substantive proof of the complaint‘s allegations. But California law has long
made clear that to require a party to supply proof of any claims or defenses as a
condition of discovery in support of those claims or defenses is to place the cart
before the horse. The Legislature was aware that establishing a broad right to
discovery might permit parties lacking any valid cause of action to engage in
―fishing expedition[s],‖ to a defendant‘s inevitable annoyance. (Greyhound Corp.
v. Superior Court, supra, 56 Cal.2d at p. 385.) It granted such a right anyway,
comfortable in the conclusion that ―[m]utual knowledge of all the relevant facts
gathered by both parties is essential to proper litigation.‖ (Id. at p. 386.)
That the eventual proper scope of a putative representative action is as yet
uncertain is no obstacle to discovery; a party may proceed with interrogatories and
other discovery methods precisely in order to ascertain that scope. (Union Mut.
Life Ins. Co. v. Superior Court (1978) 80 Cal. App. 3d 1, 9–12.) In Union Mut. Life
Ins. Co., the plaintiff in an insurance dispute issued interrogatories seeking
information about other insureds nationwide. The defendant objected on the
ground no national class action had been alleged and the answers at best would
inform the plaintiff as to whether to amend to allege such a class action. The
Court of Appeal explained, ―[t]his is the precise reason why the discovery should
be permitted.‖ (Id. at p. 12.) ―California law permits the use of discovery to get
information necessary to plead a cause of action‖ (id. at p. 11); it also permits the
20
use of discovery to determine whether an individual dispute is only a drop in the
pond and a broader representative action is warranted. ―Doubts as to whether
particular matters will aid in a party‘s preparation for trial should generally be
resolved in favor of permitting discovery; this is especially true when the precise
issues of the litigation or the governing legal standards are not clearly
established.‖ (Ibid.; see Colonial Life & Accident Ins. Co. v. Superior Court
(1982) 31 Cal. 3d 785, 791, fn. 8.) In pursuing such discovery, the strength or
weakness of the plaintiff‘s individual claim is immaterial: ―[I]t is well established
that relevancy of the subject matter does not depend upon a legally sufficient
pleading, nor is it restricted to the issues formally raised in the pleadings.‖ (Union
Mut. Life Ins. Co., at p. 10.)
It follows that a party allegedly subject to an illegal employment policy
need not already have direct, personal knowledge of how prevalent that policy is
to seek contact information for other employees that may allow the plaintiff to
determine the proper extent of any representative action. Instead, the contact
information is reasonably understood as a legitimate ―starting point for further
investigations‖ through which a plaintiff may ― ‗educate [himself or herself]
concerning [the parties‘] claims and defenses.‘ ‖ (Puerto v. Superior Court, supra,
158 Cal.App.4th at pp. 1250, 1249.)
In sum: Marshalls made no showing of the burden disclosure would
impose, and the statutory scheme imposes no good cause requirement for seeking
information by interrogatory. Accordingly, on the record here, claims of undue
burden do not support the trial court‘s refusal to permit Williams discovery of
statewide employee contact information until he supplies Marshalls with discovery
and establishes both some merit to his personal claim and reason to be certain
others had similar claims.
21
V. Privacy
Finally, Marshalls contends the trial court could restrict discovery in order
to protect the privacy interests of other employees.
The state Constitution expressly grants Californians a right of privacy.
(Cal. Const., art. I, § 1.) Protection of informational privacy is the provision‘s
central concern. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1,
35.) In Hill, we established a framework for evaluating potential invasions of
privacy. The party asserting a privacy right must establish a legally protected
privacy interest, an objectively reasonable expectation of privacy in the given
circumstances, and a threatened intrusion that is serious. (Id. at pp. 35–37.) The
party seeking information may raise in response whatever legitimate and important
countervailing interests disclosure serves, while the party seeking protection may
identify feasible alternatives that serve the same interests or protective measures
that would diminish the loss of privacy. A court must then balance these
competing considerations. (Id. at pp. 37–40.)
The Hill test, conceived in the context of a pleaded cause of action for
invasion of privacy, has been applied more broadly, including to circumstances
where litigation requires a court to reconcile asserted privacy interests with
competing claims for access to third party contact information. (See County of
Los Angeles v. Los Angeles County Employee Relations Com. (2013) 56 Cal. 4th
905, 926–932; Pioneer Electronics (USA), Inc. v. Superior Court, supra, 40
Cal.4th at pp. 370–374.) In Pioneer Electronics, we used the Hill framework to
resolve the same question the trial court faced here—the extent to which a litigant
should have access to nonparty contact information. In the context of a consumer
class action, we concluded fellow consumers who had already complained about a
product defect had little or no expectation their contact information would be
withheld from a plaintiff seeking relief from the manufacturer on behalf of
22
consumers (Pioneer Electronics, at p. 372), that disclosure would involve ―no
serious invasion of privacy‖ (id. at pp. 372–373), and in any event that
conditioning disclosure on an opt-in notice might significantly limit the ability of
named plaintiffs ―to redress a variety of social ills‖ through collective action (id. at
p. 374).
In turn, Pioneer Electronics was extended to wage and hour class actions
by Belaire-West Landscape, Inc. v. Superior Court, supra, 149 Cal. App. 4th 554.
Before class certification, the named plaintiff sought statewide employee contact
information for the preceding five years. While fellow employees generally had a
reasonable expectation of privacy in their contact information, the court doubted
they would have ―wish[ed] it to be withheld from a class action plaintiff who seeks
relief for violations of employment laws.‖ (Id. at p. 561.) Nor was any
prospective invasion of privacy serious: ―the information, while personal, was not
particularly sensitive, as it was contact information, not medical or financial
details.‖ (Id. at pp. 561–562.) Moreover, the balance of competing interests
favored disclosure even more clearly than in Pioneer Electronics; ―at stake [was]
the fundamental public policy underlying California‘s employment laws.‖
(Belaire-West, at p. 562.) The Belaire-West trial court was correct to order
disclosure, subject to employees being given notice of the action, assurance they
were under no obligation to talk to plaintiffs‘ counsel, and an opportunity to opt
out of disclosure by returning an enclosed postcard.
Courts subsequent to Belaire-West have uniformly applied the same
analysis to reach the same conclusion: In wage and hour collective actions, fellow
employees would not be expected to want to conceal their contact information
from plaintiffs asserting employment law violations, the state policies in favor of
effective enforcement of these laws weigh on the side of disclosure, and any
residual privacy concerns can be protected by issuing so-called Belaire-West
23
notices affording notice and an opportunity to opt out from disclosure. (See Crab
Addison, Inc. v. Superior Court, supra, 169 Cal. App. 4th 958; Lee v. Dynamex,
Inc., supra, 166 Cal. App. 4th 1325; Puerto v. Superior Court, supra, 158
Cal. App. 4th 1242.)
Here, the trial court did not rest its decision to limit discovery on concerns
that broader disclosures would inappropriately invade any privacy interests. No
discussion of Hill, Pioneer Electronics, or the governing balancing test appears in
the hearing transcript or the court‘s order. What discovery the trial court did
allow, it conditioned on prior issuance of a Belaire-West notice to fellow
Marshalls employees. From this, it appears the trial court concluded Marshalls‘s
privacy objections warranted affording Williams‘s fellow employees notice and
the opportunity to opt out from disclosure, but did not support otherwise
foreclosing discovery.
This does not mean the court‘s order could not be affirmed on privacy
grounds if indeed such concerns supported denial of discovery. The rule that a
judgment may be affirmed on any basis fairly supported by the record applies
equally to orders denying further responses to interrogatories. (West Pico
Furniture Co. v. Superior Court, supra, 56 Cal.2d at pp. 413–414.) Because it
interposed a timely privacy objection, Marshalls can rely on that ground as a basis
for urging affirmance. On the merits, however, the privacy argument fails.
Considering the Hill factors, we conclude they cannot support a complete bar
against disclosure of the information Williams seeks.7
7 The first Hill factor, whether ―a legally recognized privacy interest‖ exists,
is always an issue of law. The second and third factors, the existence of ―a
reasonable expectation of privacy in the circumstances‖ and the seriousness of any
invasion of privacy, may be resolved by a court as a matter of law when there are
no disputed material facts. (Hill v. National Collegiate Athletic Assn., supra, 7
(footnote continued on next page)
24
To be sure, absent employees have a bona fide interest in the confidentiality
of their contact information. While less sensitive than one‘s medical history or
financial data, ―home contact information is generally considered private.‖
(County of Los Angeles v. Los Angeles County Employee Relations Com., supra,
56 Cal.4th at p. 927; see Pioneer Electronics (USA), Inc. v. Superior Court, supra,
40 Cal.4th at p. 372; Belaire-West Landscape, Inc. v. Superior Court, supra, 149
Cal.App.4th at pp. 561–562.) However, the second Hill requirement, a reasonable
expectation of privacy in the particular circumstances, is not met. Like other
courts, we doubt Williams‘s fellow employees would expect that information to be
withheld from a plaintiff seeking to prove labor law violations committed against
them and to recover civil penalties on their behalf. (See Crab Addison, Inc. v.
Superior Court, supra, 169 Cal.App.4th at p. 967; Lee v. Dynamex, Inc., supra,
166 Cal.App.4th at pp. 1337–1338; Puerto v. Superior Court, supra, 158
Cal.App.4th at p. 1253; Belaire-West, at p. 561; Lab. Code, § 2699, subd. (i).)
Rather, fellow employees ―might reasonably expect, and even hope, that their
names and addresses would be given to‖ a plaintiff seeking to vindicate their
rights. (Pioneer Electronics, at p. 372.) At a minimum, fellow employees would
have no reason to expect their information would be categorically withheld,
without even an opportunity to opt in to or opt out of disclosure. (See ibid.
[considering as part of the particular circumstances relevant to an individual‘s
expectation the opportunities to consent or withhold consent before disclosure].)
(footnote continued from previous page)
Cal.4th at p. 40.) Because there are no disputed material facts, we may conduct a
Hill analysis for the first time on appeal.
25
The third requirement, a serious invasion of privacy, is also absent.
Williams was willing to accept as a condition of disclosure, and share the costs of,
a Belaire-West notice to employees affording them an opportunity to opt out of
having their information shared. The trial court recognized the Costa Mesa store
employees‘ privacy interests and any potential desire to avoid disclosure or
contact could be protected by conditioning disclosure on issuance of such a notice.
Employees at other stores have no different privacy interests and expectations than
those for whom disclosure was ordered; there is no reason to think their interests
could not have been accommodated in a like manner. (See Puerto v. Superior
Court, supra, 158 Cal.App.4th at p. 1255 [an increase in the number of fellow
employees for whom information is sought in no way ―alters the underlying
analysis of the seriousness of the intrusion on the witnesses‘ privacy rights‖].) As
in Pioneer Electronics, there is no justification for concluding disclosure of
contact information, after affording affected individuals the opportunity to opt out,
would entail a serious invasion of privacy. (See Pioneer Electronics (USA), Inc. v.
Superior Court, supra, 40 Cal.4th at p. 373.)
Because two of the three threshold Hill requirements are absent here, we
need not move on to a balancing of interests. (County of Los Angeles v. Los
Angeles County Employee Relations Com., supra, 56 Cal.4th at p. 926; Pioneer
Electronics (USA), Inc. v. Superior Court, supra, 40 Cal.4th at p. 373; Hill v.
National Collegiate Athletic Assn., supra, 7 Cal.4th at pp. 39–40.) We observe in
passing, however, that complete bans on disclosure to vindicate privacy interests,
or disclosure subject to an opt-in requirement, may significantly hamper the ability
of aggrieved employees, deputized by the state, to assist in broad and effective
enforcement of the labor laws. (See Pioneer Electronics (USA), Inc. v. Superior
Court, supra, 40 Cal.4th at p. 374; Puerto v. Superior Court, supra, 158
Cal.App.4th at p. 1259.) Future courts confronted with privacy objections to
26
similar requested disclosures should be mindful of this potential impact when
weighing whether to embrace a complete ban like the one imposed here or instead
to seek alternative solutions that might accommodate the competing interests at
stake.
The Court of Appeal used as its starting point for a privacy analysis not this
court‘s Hill framework, as directly applied to the problem of disclosing contact
information in discovery by Pioneer Electronics, but a trio of Court of Appeal
cases. (See Planned Parenthood Golden Gate v. Superior Court (2000) 83
Cal. App. 4th 347; Johnson v. Superior Court (2000) 80 Cal. App. 4th 1050; Lantz v.
Superior Court (1994) 28 Cal. App. 4th 1839.) These cases correctly recognize that
when a discovery request seeks information implicating the constitutional right of
privacy, to order discovery simply upon a showing that the Code of Civil
Procedure section 2017.010 test for relevance has been met is an abuse of
discretion. (Planned Parenthood Golden Gate, at p. 358; Lantz, at pp. 1853–
1857.) But they also stand for the proposition that whenever discovery of facially
private information is sought, the party seeking discovery must demonstrate a
― ‗compelling state interest‘ ‖ (Planned Parenthood Golden Gate, at p. 357,
quoting Johnson, at p. 1071) or ―compelling need‖ (Lantz, at p. 1853). Although
in this they are not alone (see post, pp. 29–30, fn. 8), they nevertheless are
incorrect.
The ―compelling interest‖ or ―compelling need‖ test has its roots in White
v. Davis (1975) 13 Cal. 3d 757, which held that the state constitutional privacy
right ―does not purport to prohibit all incursion into individual privacy but rather
[requires] that any such intervention must be justified by a compelling interest.‖
(Id. at p. 775; see ibid. [citing the ballot argument in favor of the privacy initiative
as allowing abridgement of privacy rights only in cases of ― ‗compelling public
need‘ ‖]; Long Beach City Employees Assn. v. City of Long Beach (1986) 41
27
Cal. 3d 937, 943; City of Santa Barbara v. Adamson (1980) 27 Cal. 3d 123, 130–
131; Britt v. Superior Court (1978) 20 Cal. 3d 844, 855–856; Loder v. Municipal
Court (1976) 17 Cal. 3d 859, 864.) In Hill v. National Collegiate Athletic Assn.,
supra, 7 Cal.4th at pages 20–35, we considered this test at length and clarified its
purview. We explained that not ―every assertion of a privacy interest under article
I, section 1 must be overcome by a ‗compelling interest.‘ Neither the language nor
history of the Privacy Initiative unambiguously supports such a standard. In view
of the far-reaching and multifaceted character of the right to privacy, such a
standard imports an impermissible inflexibility into the process of constitutional
adjudication.‖ (Id. at pp. 34–35.) A ― ‗compelling interest‘ ‖ is still required to
justify ―an obvious invasion of an interest fundamental to personal autonomy.‖
(Id. at p. 34.) But whenever lesser interests are at stake, the more nuanced
framework discussed above applies, with the strength of the countervailing interest
sufficient to warrant disclosure of private information varying according to the
strength of the privacy interest itself, the seriousness of the invasion, and the
availability of alternatives and protective measures. (Id. at pp. 35–40; see
Hernandez v. Hillsides, Inc. (2009) 47 Cal. 4th 272, 287–288.)
We did not formally disapprove any of the many cases that had derived
from White v. Davis, supra, 13 Cal. 3d 757 and its progeny the assumption that a
compelling interest or need is always required to justify discovery of private
information. Perhaps as a consequence, the compelling interest test quickly
expanded beyond the narrow boundaries we had set for it in Hill v. National
Collegiate Athletic Assn., supra, 7 Cal. 4th 1. Lantz v. Superior Court, supra, 28
Cal. App. 4th 1839, decided a few months after Hill, continued to rely on pre-Hill
cases for the governing standard without critically examining whether the privacy
interest at stake was of the sort that would require a compelling interest to justify
encroachment. In turn, other cases relied on Lantz, so principles derived from
28
White but strictly limited in Hill have continued to be treated as generally
applicable in cases to the present day.
Marshalls argues Hill v. National Collegiate Athletic Assn., supra, 7 Cal. 4th
1 did not overrule the compelling interest/compelling need test, but only
concluded such an interest need not be shown in every case. This is correct so far
as it goes. A threatened invasion of privacy can, to be sure, be extremely grave,
and to the extent it is, to conclude in a given case that only a compelling
countervailing interest and an absence of alternatives will suffice to justify the
intrusion may be right. (See, e.g., American Academy of Pediatrics v. Lungren
(1997) 16 Cal. 4th 307, 340–342.) But the flaw in the Court of Appeal‘s legal
analysis, and in the cases it relied upon, is the de facto starting assumption that
such an egregious invasion is involved in every request for discovery of private
information. Courts must instead place the burden on the party asserting a privacy
interest to establish its extent and the seriousness of the prospective invasion, and
against that showing must weigh the countervailing interests the opposing party
identifies, as Hill requires. What suffices to justify an invasion will, as Marshalls
recognizes, vary according to the context. Only obvious invasions of interests
fundamental to personal autonomy must be supported by a compelling interest.
(Hill, at p. 34.) To the extent prior cases require a party seeking discovery of
private information to always establish a compelling interest or compelling need,
without regard to the other considerations articulated in Hill v. National Collegiate
Athletic Assn., supra, 7 Cal. 4th 1, they are disapproved.8
8 On this basis, we disapprove Digital Music News LLC v. Superior Court
(2014) 226 Cal. App. 4th 216; Life Technologies Corp. v. Superior Court (2011)
197 Cal. App. 4th 640; Ombudsman Services of Northern California v. Superior
Court (2007) 154 Cal. App. 4th 1233; San Diego Trolley, Inc. v. Superior Court
(2001) 87 Cal. App. 4th 1083; Hooser v. Superior Court (2000) 84 Cal.App.4th
(footnote continued on next page)
29
In addition to placing an unduly onerous burden on Williams by requiring
proof of a compelling need, the Court of Appeal erred in the considerations it
found relevant to the weighing analysis. On the side of the scales against
disclosure, the court placed fellow employees‘ potential ―fear of retaliation from
an employer.‖ In other words, the prospect an employer might illegally retaliate
against an employee for participating in an action to assert legal rights (see Lab.
Code, § 98.6 [prohibiting such retaliation]) was treated as a reason to restrict
discovery that might enhance the effectiveness of any collective action. To the
extent the prospect of retaliation is real, it cuts the other way, in favor of
facilitating collective actions so that individual employees need not run the risk of
(footnote continued from previous page)
997; Save Open Space Santa Monica Mountains v. Superior Court (2000) 84
Cal. App. 4th 235; Planned Parenthood Golden Gate v. Superior Court, supra, 83
Cal. App. 4th 347; Johnson v. Superior Court, supra, 80 Cal. App. 4th 1050;
Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court (1996) 51 Cal. App. 4th
233; Garstang v. Superior Court (1995) 39 Cal. App. 4th 526; Lantz v. Superior
Court, supra, 28 Cal. App. 4th 1839; Palay v. Superior Court (1993) 18
Cal. App. 4th 919; Harding Lawson Associates v. Superior Court (1992) 10
Cal. App. 4th 7; Harris v. Superior Court (1992) 3 Cal. App. 4th 661; Mendez v.
Superior Court (1988) 206 Cal. App. 3d 557; Binder v. Superior Court (1987) 196
Cal. App. 3d 893; El Dorado Savings & Loan Assn. v. Superior Court (1987) 190
Cal. App. 3d 342; Kahn v. Superior Court (1987) 188 Cal. App. 3d 752; Wood v.
Superior Court (1985) 166 Cal. App. 3d 1138; Moskowitz v. Superior Court (1982)
137 Cal. App. 3d 313; Jones v. Superior Court (1981) 119 Cal. App. 3d 534; Board
of Trustees v. Superior Court, supra, 119 Cal. App. 3d 516; and Board of Medical
Quality Assurance v. Gherardini (1979) 93 Cal. App. 3d 669. In some of these
cases, it may have been correct to require a compelling interest or compelling
need, and in many of these cases, the ultimate conclusion as to whether
information should or should not have been discoverable may have also been
correct. We disapprove these cases only to the extent they assume, without
conducting the inquiry Hill requires, that a compelling interest or compelling need
automatically is required.
30
individual suits. (Gentry v. Superior Court (2007) 42 Cal. 4th 443, 459–461,
recognized as abrogated on other grounds in Iskanian v. CLS Transportation Los
Angeles, LLC, supra, 59 Cal.4th at p. 360; Crab Addison, Inc. v. Superior Court,
supra, 169 Cal.App.4th at p. 971.)
On the other side of the scales, the Court of Appeal minimized the
justification for discovery, concluding Williams must ―first . . . establish he was
himself subjected to violations of the Labor Code.‖ As discussed above, to show
the merits of one‘s case has never been a threshold requirement for discovery in
individual or class action cases; it is not a threshold requirement here. True,
PAGA imposes a standing requirement; to bring an action, one must have suffered
harm. (Lab. Code, § 2699; Sen. Com. on Judiciary, analysis of Sen. Bill No. 796
(2003–2004 Reg. Sess.) as amended Apr. 22, 2003, p. 6.) But the way to raise
lack of standing is to plead it as an affirmative defense, and thereafter to bring a
motion for summary adjudication or summary judgment, not to resist discovery
until a plaintiff proves he or she has standing. (Cf. Union Mut. Life Ins. Co. v.
Superior Court, supra, 80 Cal.App.3d at p. 12 [a discovery motion is not the right
vehicle to litigate the appropriate scope of an action].)
Additionally, the Court of Appeal indicated discovery could or should be
contingent on Williams establishing a uniform companywide policy. A uniform
policy may be a convenient or desirable way to show commonality of interest in a
case where class certification is sought, but it is not a condition for discovery, or
even success, in a PAGA action, where recovery on behalf of the state and
aggrieved employees may be had for each violation, whether pursuant to a
uniform policy or not. (See Lab. Code, § 2699, subd. (g)(1).) This is not to say
uniform policies play no role in PAGA cases; proof of a uniform policy is one way
a plaintiff might seek to render trial of the action manageable. But nothing in
PAGA or our privacy precedents suggests courts can or should condition
31
disclosure of contact information, which might lead to proof of a uniform or
companywide policy, on prior proof of a uniform or companywide policy. 9
―The trial courts in exercising their discretion should keep in mind that the
Legislature has suggested that, where possible, the courts should impose partial
limitations rather than outright denial of discovery . . . .‖ (Greyhound Corp. v.
Superior Court, supra, 56 Cal.2d at p. 383.) The privacy interests of fellow
employees elsewhere in California could have been addressed by conditioning
discovery on a Belaire-West notice, as was done for discovery of contact
information of employees at Williams‘s own store.10 Accordingly, Marshalls‘s
privacy objection does not support the denial of statewide discovery. 11
9 At oral argument, Marshalls relied heavily on Williams‘s alleged failure to
present any evidence of a uniform companywide policy. Though Williams was
not required to establish such a policy as a condition of discovery, our review of
the record reveals that Williams in fact did submit as part of his motion to compel
excerpts from a Marshalls employee handbook purporting to describe the
company‘s uniform, allegedly unlawful statewide meal and rest break policies.
10 Though it was not made part of the order here, trial courts may also
supplement Belaire-West notices with a protective order prohibiting disclosure of
any received contact information outside the confines of a specific lawsuit. (See
Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 38 [if the
―intrusion is limited and confidential information is carefully shielded from
disclosure except to those who have a legitimate need to know, privacy concerns
are assuaged‖].)
11 Marshalls also contends PAGA is unconstitutional on separation of powers
grounds. Marshalls did not raise the constitutionality of the statute on which
Williams sues in the Court of Appeal or in its answer to the petition for review.
Accordingly, the issue is waived, and we do not address it. (Cal. Rules of Court,
rules 8.500(c)(1), 8.516(b)(1).)
32
CONCLUSION
We reverse the judgment of the Court of Appeal and remand for further
proceedings not inconsistent with this opinion.
WERDEGAR, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
CHIN, J.
CORRIGAN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
33
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Williams v. Superior Court
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 236 Cal. App. 4th 1151
Rehearing Granted
__________________________________________________________________________________
Opinion No. 227228
Date Filed: July 13, 2017
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: William F. Highberger
__________________________________________________________________________________
Counsel:
Capstone Law, Glenn A. Danas, Ryan Wu, Robert Drexler, Stan Karas and Liana Carter for Petitioner.
Cohelan Khoury & Singer and Michael D. Singer for California Employment Lawyers Association as
Amicus Curiae on behalf of Petitioner.
Cynthia Rice for California Rural Legal Assistance, Inc., California Rural Legal Assistance Foundation,
Legal Aid Society-Employment Law Center and National Employment Law Project as Amici Curiae on
behalf of Petitioner.
The Turley Law Firm, William Turley, David T. Mara and Jamie Serb for Consumer Attorneys of
California as Amicus Curiae on behalf of Petitioner.
No appearance for Respondent.
Littler Mendelson, Robert G. Hulteng, Amy Todd-Gher, Kyle W. Nageotte, Joshua J. Cliffe, Emily E.
O‘Connor and Scott D. Helsinger for Real Party in Interest.
Shook, Hardy & Bacon, Phil Goldberg, Christopher E. Appel and Patrick Gregory for National Association
of Manufacturers, American Coatings Association and NFIB Small Business Legal Center as Amici Curiae
on behalf of Real Party in Interest.
Call & Jensen, Julie R. Trotter, Jamin S. Soderstrom and Delavan J. Dickson for Retail Litigation Center,
Inc., California Retailers Association and California Grocers Association as Amici Curiae on behalf of Real
Party in Interest.
Jackson Lewis, Lisa Barnett Sween, Natalja M. Fulton, Dylan B. Carp and Douglas G.A. Johnston for
Prometheus Real Estate Group, Inc., as Amicus Curiae on behalf of Real Party in Interest.
Page 2 – S227228 – counsel continued
Counsel:
Pahl & McCay, Stephen D. Pahl, Karen Kubala McCay and Julie Bonnel-Rogers for California Apartment
Association as Amicus Curiae on behalf of Real Party in Interest.
O‘Melveny & Myers, Apalla U. Chopra, Adam J. Karr, Ryan W. Rutledge, Andrew Lichtenstein and
Christina N. Pacudan for The Employers Group as Amicus Curiae on behalf of Real Party in Interest.
Haynes and Boone, Mary-Christine Sungaila and Martin M. Ellison for International Association of
Defense Counsel as Amici Curiae on behalf of Real Party in Interest.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Glenn A. Danas
Capstone Law
1875 Century Park East, Suite 1000
Los Angeles, CA 90067
(310) 556-4811
Robert G. Hulteng
Littler Mendelson
650 California Street, 20th Floor
San Francisco, CA 94108-2693
(415) 433-1940