The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on December 8, 2017, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a class action lawsuit arising from various alleged wage and hour violations. Plaintiffs Ted Stilwell and Stewart Ross (collectively, “Plaintiffs”) allege that defendant First Alarm (“Defendant”) failed to reimburse its California employees for all work-related expenses incurred in driving personal vehicles for work, failed to provide employees with signed commission plans and obtain signed receipts for the commission plans, and failed to furnish employees with accurate wage statements. (Third Amended Complaint (“TAC”), ¶ 5.)

The TAC, filed on September 9, 2016, sets forth the following causes of action: [1] Failure to Reimburse for Work-Related Expenses in Violation of Labor Code § 2802; [2] Violation of California Labor Code § 226; [3] Unlawful, Unfair and Fraudulent Business Practices Pursuant to Business & Professions Code § 17200, et seq.; and [4] Private Attorneys General Act of 2004: Labor Code Section 2698.
On December 9, 2016, the Court granted class certification. The Court’s order certified three subclasses, including a subclass of “all employees who drove their personal vehicles for work-related purposes.”

On July 7, 2017, the Court granted Defendant’s motion to compel the class representatives’ tax returns for certain years, but ordered the documents redacted to only reveal the taxpayer’s name, the amount of taxable income, and the amount of the total tax. On August 21, 2017, the Court denied Plaintiffs’ motion for reconsideration of the Court’s discovery ruling.

In September 2017, Defendant served subpoenas for production of business records on 33 class members. The subpoenas requested the following:

1. All documents, records, notes, itineraries, or writings reflecting, evidencing, or otherwise memorializing miles driven by YOU in the course and scope of YOUR employment duties at for [sic] First Alarm at any time from June 2011 to the present.

2. All documents, records, notes, itineraries, or writings reflecting, evidencing, or otherwise memorializing the locations to which YOU drove in any one day during the course and scope of YOUR employment with First Alarm at any time from June 2011 to the present.

3. Your federal and state tax returns (e.g., Form 1040, Form 540) for the years []. In order to protect YOUR privacy, YOU may “redact” (black out or cross out) all information from YOUR tax returns before providing them except YOUR name, the amount of taxable income, and the amount of the total tax.

(Defendant First Alarm’s Request for Judicial Notice in Support of Motion Requesting Court Order to Serve Discovery on Unnamed Class Members, Ex. G [Order Re: Motion to Quash Subpoenas], p. 2:14-21.)

Plaintiffs moved to quash the subpoenas and, on November 3, 2017, the Court granted the motion to quash on the basis that class members are not businesses and their documents do not qualify as “business records.”

Defendant now requests permission to serve deposition subpoenas for personal appearance and production of documents and things on the unnamed class members, which seek:

1. All documents, records, notes, itineraries, or writings reflecting, evidencing, or otherwise memorializing miles driven by YOU in the course and scope of YOUR employment duties for First Alarm at any time from June 2011 to the present.

2. All documents, records, notes, itineraries, or writings reflecting, evidencing, or otherwise memorializing the locations to which YOU drove in any one day during the course and scope of YOUR employment with First Alarm at any time from June 2011 to the present.

3. All documents, records, notes or writings reflecting, evidencing, or otherwise memorializing any actual expenses YOU incurred due to the use of YOUR personal vehicle in the course and scope of YOUR employment duties for First Alarm at any time from June 2011 to the present, including, but not limited to, expenses for fuel, maintenance, repairs, insurance, registration and depreciation.

4. Your federal and state tax returns (e.g., Form 1040, Form 540) for the years [years of employment during relevant time period]. In order to protect YOUR privacy, YOU may “redact” (black out or cross out) all information from YOUR tax returns before providing them except: YOUR name, the amount of taxable income, and the amount of the total tax.

(Declaration of Sarah Lucas in Support of Defendant First Alarm’s Motion Requesting Court Order to Serve Discovery on Unnamed Class Members, Ex. G, emphasis in original.)

II. REQUEST FOR JUDICIAL NOTICE

Defendant requests that the Court take judicial notice of the Memorandum of Points and Authorities in Support of Plaintiff’s Motion for Class Certification filed in this action on November 4, 2016, in addition to five orders issued by the Court related to class certification and discovery in this action. The Court can take judicial notice of court records. (Evid. Code, § 452, subd. (d).) Accordingly, Defendant’s request for judicial notice is GRANTED.

III. DISCUSSION

Plaintiffs do not oppose the production of documents in the first three categories – i.e. (1) miles driven; (2) locations to which class members drove; and (3) vehicle expenses. There is no dispute this information is relevant and should be produced.

With regard to the tax returns, Plaintiff has filed a writ petition with the Court of Appeal regarding this Court’s denial of Plaintiffs’ motion for reconsideration on the discoverability of the class representatives’ tax information. Plaintiffs request, if the Court is inclined to grant Defendant’s request for the unnamed class members’ tax returns, that the Court stay this case until the Court of Appeal rules on the writ petition. The Court agrees that it would be beneficial to receive guidance on the tax issue from the Court of Appeal. However, the Court will not stay the entire action at this time.

Defendant’s motion is GRANTED IN PART. Defendant can serve subpoenas for documents in the first three categories. The remainder of the motion, concerning the tax returns, is CONTINUED to January 12, 2017 at 9:00 a.m. in Department 5. In the interim, the Court requests the parties meet and confer to discuss whether in lieu of producing redacted tax returns the class members could instead respond to an interrogatory asking for his or her marginal tax rate (appropriately and clearly defined) for each year in which he or she claims Defendant violated Labor Code section 2802. The Court also requests that the parties meet and confer regarding whether the tax information relates solely to damages, and if so, whether the trial might be bifurcated so there is a liability trial and a damages trial.

The Court will prepare the final order if this tentative ruling is not contested.