Judge Richard S. Whitney, Case 37-2022-00012259-CU-OE-CTL 2023-11-22 Tentative Ruling

Judge: Richard S. Whitney, Case: 37-2022-00012259-CU-OE-CTL, Date: 2023-11-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 21, 2023

11/22/2023 10:30:00 AM C-68 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Richard S. Whitney

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Civil - Unlimited Other employment Discovery Hearing 37-2022-00012259-CU-OE-CTL BAPTISTE VS RALPHS GROCERY COMPANY [E-FILE] CAUSAL DOCUMENT/DATE FILED:

TENTATIVE RULING: PLAINTIFF'S MOTION TO COMPEL ATTENDANCE AND TESTIMONY BY DEFENDANT'S 'PMQ(S)', AND FOR MONETARY SANCTIONS is GRANTED, in part, and DENIED, in part.

Plaintiff OLLIE KATRINA BAPTISTE's ('Plaintiff') seeks to compel Defendant RALPHS GROCERY COMPANY ('Defendant') to produce PMQs for deposition on the topics in Plaintiff's deposition notice.

The parties agree the remaining issues, after meeting and conferring, can be categorized as: (1) whether the applicable statute of limitations limits the matters for consideration, (2) whether discovery should be bifurcated such that discovery as to Plaintiff's individual claims proceeding first and class-wide discovery to follow if any claims survive summary judgment, and (3) relevance of certain topics.

The topics in dispute as to temporal limitations are topics 5, 25, and 27-28. As to topic 5, the Court agrees Defendant's attempt to temporally limit the discovery to the statute of limitations is unmeritorious as information collected before the August 2020 cutoff could have been collected and later disclosed during the limitations period. However, allowing discovery starting from the 1980s would be overly burdensome, harassing and unduly prejudicial, especially given that Defendant represents that Plaintiff obtained a Ralph's card in 2015 (Plaintiff does not dispute this in the reply). The Court finds the same reasoning applies to topics 25, 27, and 28 as they relate to what information was collected and notices of such collection. The Court orders Defendant to produce a PMQ as to topics 5, 25, and 27-28, with the temporal limitations starting in January of 2015, rather than August of 2020.

The second issue is bifurcation of discovery. 'The decision to permit or not permit precertification discovery in a class action is committed to the wide discretion of the trial court.' (CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300, 307.) 'Precertification class discovery is not a matter of right. In making its determination, the trial court must employ the 'Parris balancing test': weighing the actual or potential abuse of the class action procedure against the benefits that might be gained.' (Id.) A class representative who is not a class member or is otherwise unqualified to serve as class representative may, in certain circumstances, move for precertification discovery for the purpose of identifying a new class representative. Courts have recognized that such precertification discovery presents the potential for abuse of the class action procedure, but also implicates the rights and interests of potential class members on whose behalf the complaint was filed.

(CVS Pharmacy, supra, 241 Cal.App.4th at 308.) It has been held that 'a plaintiff who purports to bring a cause of action on behalf of a class of which he was never a member' may not 'obtain precertification discovery to find a new class representative[.]' (First American Title Ins. Co. v. Superior Court (2007) 146 Calendar No.: Event ID: TENTATIVE RULINGS

3013830 52 CASE NUMBER: CASE TITLE: BAPTISTE VS RALPHS GROCERY COMPANY [E-FILE] 37-2022-00012259-CU-OE-CTL Cal.App.4th 1564, 1573.) The parties agree the Court may look to Federal precedent as to bifurcation of discovery.

Among the matters the court may consider in deciding whether to bifurcate are: (1) the overlap between individual and class discovery, (2) whether bifurcation will promote Federal Rule of Civil Procedure 23's requirement that certification be decided at 'an early practicable time,' (3) judicial economy, and (4) any prejudice reasonably likely to flow from the grant or denial of a stay of class discovery.

(True Health Chiropractic Inc v. McKesson Corporation (N.D. Cal., Jan. 20, 2015, No. 13-CV-02219-JST) 2015 WL 273188, at *1.) CCP section 2019.020 provides: (a) Except as otherwise provided by a rule of the Judicial Council, a local court rule, or a local uniform written policy, the methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or another method, shall not operate to delay the discovery of any other party.

(b) Notwithstanding subdivision (a), on motion and for good cause shown, the court may establish the sequence and timing of discovery for the convenience of parties and witnesses and in the interests of justice.

(Code Civ. Proc., § 2019.020.) The Court finds that in the interests of justice the sequencing and timing of discovery should be such that class wide discovery (addressed in topics 7-14, 31-32, 35) may continue after the Court considers the merits of Plaintiff's individual claims. Defendant represents, and Plaintiff does not dispute with evidence, that Plaintiff is not a member of the currently defined putative class. Plaintiff does not dispute that Defendant's records show Plaintiff obtained her Ralphs card in 2015. Plaintiff does not dispute that Plaintiff only visited a Ralphs grocery story seven times since August 2020 and that these visits did not include the sensitive purchases or alleged factual hypotheticals Plaintiff alleged in the Second Amended Complaint.

Even if the Court were to accept that Plaintiff is an adequate representative, the Court would find the benefits to bifurcating discovery would outweigh the risks of prejudice to Plaintiff such that bifurcating discovery would be appropriate under CCP section 2019.020(b) and Federal case law. While a PMQ would presumably be able to speak to companywide practices and policies, a PMQ could also presumably be able to speak to company records as to data collection and dissemination, if any, as to a particular person, Plaintiff. The Court does not believe that bifurcation would lead to a multiplicity of lawsuits as a replacement plaintiff could potentially be found in this action, if one exists, in the event Plaintiff lacks standing. On the other hand, bifurcation could eliminate needless discovery and litigation.

Finally, Plaintiff is concerned that there could be an issue with the 5-year rule, but Plaintiff does not address how this could easily be handled by a stipulation to extend the rule, in the event it became necessary. If Plaintiff's concern is sincere and Defendant does not agree to stipulate to a tolling of the 5-year rule, the Court could condition the bifurcation of discovery on a stipulation to the tolling of the 5-year rule. The Court agrees with Defendant that discovery should be bifurcated as proposed.

Finally, as to topics 6, 15-19, 20-22, 26, 29, 36 and 38, Defendant objects that the topics are either vague/ambiguous, cause undue burden or lack relevance. '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.'' (Williams v. Superior Court (2017) 3 Cal.5th 531, 542 [Citation omitted].) The Court finds Defendant has not sufficiently justified its objections. While 84.51º LLC may be a third-party over which Defendant does not have control, Defendant may still testify as to what knowledge it does have as to 84.51º LLC's role in collection of data from Defendant.

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3013830 52 CASE NUMBER: CASE TITLE: BAPTISTE VS RALPHS GROCERY COMPANY [E-FILE] 37-2022-00012259-CU-OE-CTL The Court finds the topics seeking testimony about the nature and extent of any changes in Defendant's data collection, data sharing, and data selling within the applicable limitations period are not too vague and they seek information reasonably calculated to lead to the discovery of admissible evidence. As to topic 29, the Court finds the topic is not too vague to permit testimony.

'An 'objection based upon burden must be sustained by evidence showing the quantum of work required.'' (Williams, supra, 3 Cal.5th at 549 [Citation omitted].) Defendant has not demonstrated the quantum of work required as to the topics at issue such that Defendant has failed to support its objections as to undue burden. Finally, as to topic 38 the Court finds the information could be relevant to class certification.

In sum, the Court orders the following: (1) topics 5, 25, and 27-28 are hereby temporally limited to the start of January of 2015 to present; (2) the matters in topics 7-14, 31-32, 35 are bifurcated for purposes of class wide discovery such that Plaintiff is not permitted discovery on the class wide matters until after the Court considers the merits of Plaintiff's individual claims; and (3) Defendant's objections as to topics 6, 15-19, 20-22, 26, 29, 36 and 38, except as to the issue of bifurcation, are overruled. Defendant is ordered to produce its PMQ(s) for deposition within twenty (20) calendar days to be deposed on the topics as outlined above. No sanctions are awarded.

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