ORIGINAL PROCEEDING; petition for writ of mandate. Charles Carter Lee, Judge. Denied. (Los Angeles County Super. Ct. No. BC377269).
The opinion of the court was delivered by: Jackson, J.
CERTIFIED FOR PUBLICATION
Petitioner Crab Addison, Inc. (CAI)*fn1 seeks a writ of mandate directing the trial court to vacate two orders granting discovery to real party in interest Roberto Martinez (Martinez). We deny the petition.
FACTUAL AND PROCEDURAL BACKGROUND
On September 7, 2007, Martinez filed his complaint as a class action, alleging causes of action for violation of the Labor Code, violation of Business and Professions Code section 17200 et seq. (Unfair Business Practices Act) and failure to provide mandated meal periods and rest breaks in violation of the Labor Code and orders of the Industrial Welfare Commission. Martinez alleged that CAI "engag[ed] in a uniform policy and systematic scheme of wage abuse against their salary paid employees in California. This scheme involved, inter alia, misclassifying the salaried restaurant employees as 'exempt' managerial/executive employees for purposes of the payment of overtime compensation when, in fact, they were 'non-exempt' non-managerial employees according to California law." CAI thus deprived its salaried employees of compensation for hours worked in excess of 40 hours per week. Additionally, CAI "denied the salaried restaurant employees mandated meal and rest breaks under California law." Martinez sought declaratory and injunctive relief, as well as restitution.
About December 14, 2007, Martinez served CAI with its first set of special interrogatories. At issue here are three of these special interrogatories. Interrogatory No. 33 asks CAI to "IDENTIFY each CLASS MEMBER." "Class member" is defined as "any person who was and/or is employed in any restaurants owned, operated, and/or acquired by [CAI] in the State of California in a salaried restaurant position between September 7, 2003, and the present date." Identification of the class members includes providing their names, addresses and telephone numbers.
Interrogatory No. 34 asks that if CAI "contend[s] that this action is not appropriate for class certification then please state all facts that support [CAI's] contention." Interrogatory No. 36 asks CAI to "IDENTIFY EACH PERSON who has knowledge of the facts set forth in response to Interrogatory Number 34."
CAI filed its answer to Martinez's complaint about February 28, 2008. In addition to denying the allegations of the complaint, CAI set forth a number of affirmative defenses. Among these were allegations that the case was not appropriate for class certification.
Thereafter, about March 7, 2008, CAI objected to all three interrogatories on numerous grounds. One ground was that the interrogatories sought "confidential and private information."
Martinez filed a motion to compel further responses to his special interrogatories about March 25, 2008. This motion was based on CAI's "refusal to disclose the identities of witnesses, including the names and contact information of the putative class members." Martinez argued that this information was necessary to meeting his burden of proving class certification was appropriate, he was entitled to the information, and production of the information would not violate the witnesses' right to privacy.
CAI filed opposition to Martinez's motion about April 17, 2008. It argued that Martinez was not entitled to discovery of the names and contact information of its employees. It argued that its employees had a heightened expectation of privacy as to their contact information based on forms they signed regarding release of their contact information. Based on this heightened expectation of privacy, CAI claimed, if the court were to consider disclosure of the employees' contact information, it should do so subject to an "opt in" notice requirement. That is, the employees would be contacted and only those who chose to "opt in" to the lawsuit would have their contact information disclosed to Martinez.*fn2
In support of its opposition to Martinez's motion, CAI submitted copies of its release forms. These forms read:
RELEASE OF CONTACT INFORMATION
From time to time, Joe's Crab Shack (the "Company") may be asked to provide your contact information, including your home address and telephone number, to third parties. The Company may be asked to provide such information in the context of legal proceedings, including class action lawsuits.
We understand that many employees may consider this information to be private and may not want it released. Accordingly, please indicate whether you consent to the disclosure of your contact information by marking the appropriate box.
No, I do not consent to the Company's disclosure of my contact information to third parties.
Yes, I consent to the Company's disclosure of my contact information to third parties.
I would like to be asked on a case-by-case basis whether I consent to the disclosure of my contact information to a particular third party, and my contact information should only be provided if I affirmatively consent in writing.
At the bottom of the release forms was the following:
NOTE: Your response does not create a guarantee that the Company will not release your contact information as circumstances may require or warrant it. For instance, the Company may be required or compelled by law to disclose your contact information, regardless of whether you consent to such disclosure, or it may determine that it must do so should it determine that you are a witness in a lawsuit or should it be requested by law enforcement officers. In such an event, the Company cannot be held responsible for disclosing this information even if you have not consented to disclosure or asked for a case-by-case determination of disclosure.
CAI included 19 forms on which the employees checked the first box, indicating they did not want their contact information disclosed, and 17 forms on which the employees checked the third box, indicating they wanted to consider disclosure on a case-by-case basis. These forms were signed between January 24, 2008 and April 8, 2008. According to the declaration of Michael Anders, CAI's Director of Human Resources, most of the salaried employees in California either did not want their contact information disclosed or wanted to consider disclosure on a case-by-case basis. "Only a few" said that CAI could release their contact information.
In response, Martinez argued that an "opt out" procedure should be used. In order to prevent abuse of the employee information, Martinez stated that he was willing to enter into a protective order.
Prior to the April 30, 2008 hearing, the trial court issued its tentative ruling. It stated that the motion was "[g]ranted on the grounds set forth in the moving papers. This court has weighed the privacy interests of potential class members against the compelling need for discovery of their names and contact information, and finds that plaintiffs are entitled to ...