2013-00138279-CU-OE

Nancy Beverage vs. EDCOA, Inc.

Nature of Proceeding:   Motion to Compel Requests for Production

Filed By:  Diannia L. Hadley vs. Kiuimars R. Hekmat
If oral argument is requested, the hearing for the oral argument will be on Monday
June 23, 2014 in Department 53 at 2:00 p.m.  If this time is not convenient, the parties
shall meet and confer on a later date for oral argument and inform the court clerk by
4:00 p.m. on June 20.

Plaintiff brings this putative class action alleging defendant misclassified its employees
as exempt employees to avoid paying overtime.  Plaintiff’s Complaint defines the class
as:

“[a]ll individuals who are or previously were employed by defendant in California as
Instructors and were classified as exempt from overtime wages at any time during the
period beginning four (4) years prior to the filing of this Complaint and ending on the
date as determined by the Court.”   The class definition is not limited by location or
type of instruction.

Plaintiff alleges causes of action for Violation of the Business & Professions Code,
Violation of Labor Code with regard to payment of Overtime, and Violation of Labor
Code section 226 (provide accurate itemized wage statements). Plaintiff is an
instructor in vocational nursing in Sacramento.   Plaintiff alleges that her position was
initially “exempt” then changed to “non-exempt” and later changed back to “exempt.”

Plaintiff served requests for production seeking information about the other class
members in California and their duties as instructors, not limited to Vocational Nursing
instructors.  Defendant contends that plaintiff is only entitled to information about
others in her job function (Vocational Nursing) at her place of employment,
Sacramento.  Defendant contends that plaintiff has narrowed the class definition to her
position in Sacramento.  However, the discovery propounded tracks the class
definition in the Complaint.  The discussions concerning narrowing the scope of
discovery appear to have been with regard to the mediation and a possible sub-class,
and do not establish plaintiff’s intent to narrow the class-definition in general or with
regard to the discovery at issue.

Defendant also contends that plaintiff has not adequately met and conferred as to the
requests for production.  The Court has reviewed the exhibits attached to the
Declaration of Coby M. Turner and finds that plaintiff’s counsel adequately met and
conferred on the discovery requests. Moreover, there was additional meeting and
conferring after the motion was filed, which resulted in defendant producing additional
documents.

Requests for Production:

Granted as to:  Nos. 1, 2, 3, 8, 10, 11, 16 (limited to campus locations), 18, 19 (subject
to compliance with Bel-Aire opt out notice, see below), and 31.  Plaintiff is entitled to
the requested discovery to determine whether the positions other than Vocational
Nursing and locations other than Sacramento are amenable to class-wide treatment
and whether there might be other class representatives to represent possible sub-
classes.

Denied as to: 29 (all email communications between plaintiff and defendant since
2009)

Re Item 19, contact information including employees’ identities and related information
such as telephone numbers is frequently discoverable information from an employer.
(See Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1252; and Belaire-West
Landscape, Inc. v. Superior Court (2001) 149 Cal.App.4th 554, 562-63.) Moreover, the
California Supreme Court has also authorized disclosure of such information where the
relationship between the putative class and the defendant  is much more attenuated. (
Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 364-65:
Allowing the defendant to disclose telephone numbers of consumers who had merely
purchased a DVD player manufactured by the defendant.). Some courts have held that
a plaintiff in a wage and hour class action is entitled to the names and contact
information of all putative class members and percipient witnesses without necessarily
undergoing an opt-out procedure. In Crab-Addison, Inc. v Superior Court (2008) 169
Cal.App.4th 958, 961, 974, the Court ordered that the names and contact information
be provided outright, without an opt-out procedure.

In employment law wage and hour class actions discovery of putative class members’
contact information is often permitted even in the face of privacy  concerns. (See Lee
v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325 (allowing discovery of contact
information by use of interrogatories for putative class members in a misclassification
class action); Belaire-West Landscape, Inc. v. Superior Court (2007) 40 Cal.4th 360
(granting motion to compel employer to provide names and contact information of all
current and former employees after sending out an opt-out notice requiring an
objection within a certain amount of time.)). Disclosure of contact information in the
wage and hour context is permitted because employees [are] reasonably expected to
want their information disclosed to a class action plaintiff who may ultimately recover
for them unpaid wages that they are owed.” Id. at p. 561 (emphasis added.)

The proper balancing test requires the Court to consider three factors: (1) a legally
recognized reasonable expectation of privacy, (2) a serious invasion of privacy, and (3)
a balancing the opposing interests (public need for the information versus the weight of
the right infringed upon.) Hill v. National Collegiate Athletic Association (1994) 7
Cal.4th 1, 39-40.   The Court has weighed the employees’ reasonable expectation of
privacy in their identities with the need for the information and finds that the invasion is
slight compared to the plaintiff’s need for the information.

Sanctions are denied as plaintiff has not fully prevailed and defendant acted with
substantial justification in filing the opposition.

Where granted, verified further responses, without objections, shall be served on or
before July 21, 2014.

The parties are ordered to meet and confer as to the content and form of the Bel-Aire
opt-out notice.  Defendant contends that plaintiff’s proposed notice is biased.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

Item   7    2013-00138279-CU-OE

Nancy Beverage vs. EDCOA, Inc.

Nature of Proceeding:    Motion to Compel Special Interrogatories

Filed By:   Bhowmik, Aparajit If oral argument is requested, the hearing for the oral argument will be on Monday
June 23, 2014 in Department 53 at 2:00 p.m.  If this time is not convenient, the parties
shall meet and confer on a later date for oral argument and inform the court clerk by
4:00 p.m. on June 20.

Plaintiff brings this putative class action alleging defendant misclassified its employees
as exempt employees to avoid paying overtime.  Plaintiff’s Complaint defines the class
as:

“[a]ll individuals who are or previously were employed by defendant in California as
Instructors and were classified as exempt from overtime wages at any time during the
period beginning four (4) years prior to the filing of this Complaint and ending on the
date as determined by the Court.”     The class definition is not limited by location or
type of instruction.

Plaintiff alleges causes of action for Violation of the Business & Professions Code,
Violation of Labor Code with regard to payment of Overtime, and Violation of Labor
Code section 226 (provide accurate itemized wage statements). Plaintiff is an
instructor in vocational nursing in Sacramento.    Plaintiff alleges that her position was
initially “exempt” then changed to “non-exempt” and later changed back to “exempt.”

Plaintiff propounded Special Interrogatories seeking information about other class
members’ positions as instructors, not limited to Vocational Nursing,  throughout
California.  The interrogatories seek the number of class members (No. 5) , job duties
(No. 7), policies for paying overtime to class members (No. 9) and identification of
class members (No. 10. Defendant contends that plaintiff is only entitled to information
about others in her job function (Vocational Nursing) at her place of employment,
Sacramento.  Defendant contends that plaintiff has narrowed the class definition to
vocational nursing in Sacramento.  However, the discovery propounded tracks the
class definition in the Complaint. The discussions concerning narrowing the scope of
discovery appear to have been with regard to the mediation and a possible sub-class,
and do not establish plaintiff’s intent to narrow the class-definition in general or with
regard to the discovery at issue.

The motion is granted as to the special interrogatories in dispute, Nos. 5, 7, 9, and 10.

Contact information including employees’ identities and related information such as
telephone numbers is frequently discoverable information from an employer. (See
Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1252; and Belaire-West
Landscape, Inc. v. Superior Court (2001) 149 Cal.App.4th 554, 562-63.) Moreover, the
California Supreme Court has also authorized disclosure of such information where the
relationship between the putative class and the defendant  is much more attenuated. (
Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 364-65:
Allowing the defendant to disclose telephone numbers of consumers who had merely
purchased a DVD player manufactured by the defendant.). Some courts have held that
a plaintiff in a wage and hour class action is entitled to the names and contact
information of all putative class members and percipient witnesses without necessarily
undergoing an opt-out procedure. In Crab-Addison, Inc. v Superior Court (2008) 169
Cal.App.4th 958, 961, 974, the Court ordered that the names and contact information
be provided outright, without an opt-out procedure.             In employment law wage and hour class actions discovery of putative class members’
contact information is often permitted even in the face of privacy  concerns. (See Lee
v. Dynamex, Inc. (2008) 166 Cal.App.4th 1325 (allowing discovery of contact
information by use of interrogatories for putative class members in a misclassification
class action); Belaire-West Landscape, Inc. v. Superior Court (2007) 40 Cal.4th 360
(granting motion to compel employer to provide names and contact information of all
current and former employees after sending out an opt-out notice requiring an
objection within a certain amount of time.)). Disclosure of contact information in the
wage and hour context is permitted because employees [are] reasonably expected to
want their information disclosed to a class action plaintiff who may ultimately recover
for them unpaid wages that they are owed.” Id. at p. 561 (emphasis added.)

The proper balancing test requires the Court to consider three factors: (1) a legally
recognized reasonable expectation of privacy, (2) a serious invasion of privacy, and (3)
a balancing the opposing interests (public need for the information versus the weight of
the right infringed upon.) Hill v. National Collegiate Athletic Association (1994) 7
Cal.4th 1, 39-40.   The Court has weighed the employees’ reasonable expectation of
privacy in their identities with the need for the information and finds that the invasion is
slight compared to the plaintiff’s need for the information.

As to number 10,  which seeks the identities of class members, a Bel-Aire notice shall
be first sent after the parties meet and confer as to the content of the notice.

As to Nos. 5, 7, and 9, verified further responses shall be served, without objections,
on or before July 21, 2014.

Sanctions are denied as the motion was opposed with reasonable justification.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.