Judge: Joseph Lipner, Case: 23STCV24738, Date: 2024-10-31 Tentative Ruling

Case Number: 23STCV24738    Hearing Date: October 31, 2024    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Plaintiff Oscar Macias (“Plaintiff”) moves for approval of his proposed Belaire-West discovery opt-out notice provided to Defendants PFC Management LLC (“PFC”), Pacific Fertility Centers, Inc. (“Pacific”), and Hatch Fertility Egg Donation and Surrogacy (“Hatch”) (collectively, “Defendants”) to be disseminated to potential aggrieved employees in this Private Attorney General Act (“PAGA”) action.

The Court determines that the form and contents of Plaintiff’s proposed notice, to which Defendants do not substantively object to, are proper. The Court determines that Plaintiff’s proposed notice resolves any privacy objections that Defendants may raise to the disclosure of the names and contact information of potential aggrieved employees. The Court does not yet order the issuance of Plaintiff’s proposed notice because Defendants have not, in fact, raised any such privacy objections at this time. However, if the apparent discovery dispute between the parties results in a motion to compel or to compel further discovery responses where Defendants raise such a privacy objection, the Court will order Defendants to issue the proposed Belaire-West notice in order to resolve the privacy issue.

The Court requests that the parties meet and confer in good faith in light of this order. “[I]n a PAGA action, … a complaint that alleges [violations of the Labor Code] makes any employee allegedly aggrieved a percipient witness and his or her contact information relevant and discoverable.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 547–548.) The Court will follow this rule and the parties should take it into account during the meet and confer process. 

Background

This is a PAGA action.

Plaintiff filed this case on October 10, 2023. The operative complaint is now the First Amended Complaint (“FAC”), which raises claims for (1) failure to pay minimum wages; (2) failure to furnish wage and hour statements; (3) failure to maintain payroll records; (4) failure to provide meal and rest period compensation; (5) failure to pay overtime compensation; (6) waiting time penalties; (7) unfair competition; (8) retaliation in violation of Labor Code, section 1102.5; and (9) wrongful termination.

On March 15, 2024, Plaintiff provided Defendants with a proposed opt-out notice pursuant to Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561. (LaCour Decl. ¶ 5.) Belair-West provides that privacy concerns regarding the disclosure of potential aggrieved employees’ personal contact information can be resolved by the employer’s provision of a notice to the employees that their information will be disclosed in litigation and that they may opt out of this disclosure. (Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561.)

Counsel for Defendants did not respond to Plaintiff’s proposed notice. Plaintiff’s counsel followed up twice, on March 26, 2024. (LaCour Decl. ¶¶ 6.)

On March 27, 2024, counsel for Defendants emailed Plaintiff’s counsel stating that the proposed notice had been received. (Mallet Decl., Ex. E.) Defendants’ counsel stated that they were willing to meet and confer regarding the substantive discovery served, but did not make any other statement as to the proposed notice. (Mallet Decl., Ex. E.) Plaintiff’s counsel replied on the same day, asking why Defendants’ counsel had not addressed the issue of the proposed notice. (Mallet Decl., Ex. E.)

On April 3, 2024, Plaintiff’s counsel followed up again, asking if Defendants took issue with the proposed notice and stating that Plaintiff would move to compel the Belaire-West notice if Defendants did not timely reply. (Mallet Decl., Ex. E.) On the same day, Defendants’ counsel replied:

“We will absolutely meet and confer about privacy issues and how best to address them after the discovery requests to which the contemplated privacy-protecting mechanisms may apply is ripe and we have determined that such requests are otherwise appropriate and non-objectionable.”

(Mallet Decl., Ex. E.)

            Plaintiff’s counsel replied on the same day, stating that Plaintiff would request an informal discovery conference and discuss the issue with the Court. (Mallet Decl., Ex. E.)

            The parties thereafter engaged in mediation. (LaCour Decl. ¶¶ 7-8.) The parties agreed to narrow pre-mediation discovery, and Plaintiff’s counsel agreed to extend Defendant’s deadline to respond to Plaintiff’s PAGA discovery requests to 30 days after the date of mediation if mediation was unsuccessful. (LaCour Decl. ¶¶ 9-10.) Plaintiff did not seek an IDC. (LaCour Decl. ¶¶ 7-8.)

            Plaintiff filed this motion on September 5, 2024.

            The mediation was held on September 10, 2024 and did not result in a settlement. (LaCour Decl. ¶ 14.) Plaintiff contends that the mediation was unsuccessful. Defendants contend that the mediation was suspended so that both sides could conduct depositions.

Defendants filed an opposition to this motion and Plaintiff filed a reply.

Discussion

In an employment class action or collective claim, any potential privacy concerns regarding the disclosure of potential aggrieved employees’ personal contact information can be resolved by requiring the defendant employer to send the potential aggrieved employees stating that their address and phone numbers will be given to counsel unless they timely return an enclosed post card. (Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 561.) This type of opt-out notice adequately protects an employee’s right to privacy. (Ibid.)

Defendants argue that Plaintiff’s motion as to Pacific and Hatch, which they assert have no employees, is harassing. However, if those entities have no employees, then a court-ordered notice requires nothing of them.

Defendants contend that Plaintiff’s motion is premature because Plaintiff did not seek an IDC. Although Plaintiff’s counsel stated to Defendant that he would do so, an IDC is not a prerequisite for approval of a Belaire-West notice. It is an informal mechanism for streamlining the discovery process. Further, the Court did not order an IDC on this issue here. The Court determines that Plaintiff’s failure to seek an IDC is not a bar to this motion.

Defendants contend that Plaintiff’s motion is not ripe because Plaintiff has not yet filed a motion to compel further discovery responses from Defendants. Defendants contend that Plaintiff could not file a motion to compel, because the mediation was suspended, and not unsuccessful, and that the 30-day discovery deadline therefore has not been triggered. Defendants contend that an email from the mediator confirms this, but do not provide the email because they state that it contains confidential information. (Opposition at p. 5, fn. 2, 3.) The Court does not make a determination as to whether mediation was unsuccessful or merely suspended because this is not a motion to compel that discovery.

In Belaire-West and Williams v. Superior Court (2017) 3 Cal.5th 531, both cited by Plaintiff regarding the appropriateness of an opt-out notice, the procedural posture was discovery motion brought by the plaintiff where the defendant objected to disclosure of employees’ personal information on privacy grounds. (Belaire-West, supra, 3 Cal.5th at p. 556 [motion to compel further]; Williams v. Superior Court (2017) 3 Cal.5th 531, 337-538 [motion to compel].)

Although the typical procedural posture where courts rule on potential Belaire-West notices appears to be a motion to compel discovery, Defendants do not point to any authority that such a motion is a requirement for approval of a Belair-West notice. Under the facts in this case, the Court is inclined to approve Plaintiff’s proposed notice. Plaintiff repeatedly attempted to meet and confer in good faith regarding Defendants’ potential privacy objections as to their employees in order to preemptively resolve such privacy concerns without requiring objections or a motion to compel.

That said, this is not a motion to compel. It is unclear whether Defendants do in fact raise privacy objections. However, Defendants have been in possession of Plaintiff’s PAGA-related discovery requests for months now, and are surely aware of whether they believe a privacy objection to be proper.

The Court rejects Defendants’ argument that this motion infringes on their due process rights due to not being associated with a motion to compel. Any privacy objection raised by Defendants would be for the purpose of preserving their employees’ privacy rights – not their own. The Belaire-West notice protects those rights.

The Court determines that the form and contents of Plaintiff’s proposed notice, to which Defendants do not substantively object to, are proper. The Court determines that Plaintiff’s proposed notice resolves privacy objections that Defendants may raise to the disclosure of the names and contact information of potential aggrieved employees. The Court does not yet order the issuance of Plaintiff’s proposed notice because Defendants have not, in fact, raised any such privacy objections at this time. However, if the apparent discovery dispute between the parties results in a motion to compel, and Defendants raise such a privacy objection, the Court will order Defendants to issue the proposed Belaire-West notice in order to resolve the privacy issue.

The Court requests that the parties meet and confer in good faith in light of this order. “[I]n a PAGA action, … a complaint that alleges [violations of the Labor Code] makes any employee allegedly aggrieved a percipient witness and his or her contact information relevant and discoverable.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 547–548.) The parties should keep this in mind during their meet and confer.