Parris v. Superior Court

• Decision Date: 29 May 2003
• Docket Number: No. B164375.,B164375.
• Court: California Court of Appeals Court of Appeals
• Parties: Cynthia PARRIS et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent, Lowe's H.I.W., Inc., Real Party in Interest.

135 Cal.Rptr.2d 90

109 Cal.App.4th 285

Cynthia PARRIS et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent, Lowe's H.I.W., Inc., Real Party in Interest.

No. B164375.

Court of Appeal, Second District, Division 7.

May 29, 2003.

R. Rex Parris Law Firm, R. Rex Parris, James S. Kostas, Lancaster; Marlin & Saltzman, Stanley D. Saltzman, Woodland Hills, Louis M. Marlin, Anaheim; Mazursky & Schwartz, Arnold W. Schwartz and Mark D. Bradley for Petitioner.

Littler Mendelson and Gregg C. Sindici, San Diego, for Real Party in Interest.

No appearance for Respondent.

PERLUSS, P.J.

Cynthia Parris and Willie Lopez filed a lawsuit "on their own behalf and on behalf of all similarly situated" against Lowe's H.I.W., Inc., alleging violations of California's wage and hour laws regarding overtime compensation. Parris and Lopez thereafter moved (a) for leave to communicate with potential class members prior to class certification and for approval of the content of their proposed communication and (b) to compel discovery of the names and addresses of potential class members. The trial court denied both motions. Parris and Lopez petitioned this court for a writ of mandate directing the trial court to reverse its orders, and we issued an order to show cause.

Precertification communication with potential class members, like pre-filing communication, is constitutionally protected speech. A blanket requirement of judicial approval for such communications would constitute an impermissible prior restraint on speech. Accordingly, Parris' and Lopez's motion for judicial approval of their proposed communications was unnecessary; and the trial court should have dismissed the motion on that ground, rather than denying it. The trial court also erred in denying Parris' and Lopez's discovery motion without expressly weighing the actual or potential abuse of the class action procedure that might be caused by permitting the discovery, on the one hand, against the rights of the parties, on the other hand. We therefore remand for a new hearing on that motion.

FACTUAL AND PROCEDURAL BACKGROUND

In their complaint, filed on October 29, 2001, Parris and Lopez allege causes of action for failure to pay overtime compensation and compensation at time of termination in violation of the Labor Code, declaratory relief, an accounting, injunctive relief and unfair competition. The two named plaintiffs purport to represent the class of "all persons who are, or have been, employed by defendant Lowe's H.I.W., Inc .... in the capacity as non-exempt department managers, customer service pros, customer service specialists and customer service representatives ... in any of Lowe's home improvement centers located in the state of California." The complaint alleges it has been the business practice of Lowe's "to require all members of the plaintiff class to complete more assignments than can be accomplished in the time allocated in their shifts. Employees failing to complete their assignment, clock out but continue to work `off the clock' until they have completed their assignments." The putative class has not yet been certified.

Parris and Lopez moved in the trial court for an order permitting precertification notice to potential class members and for approval of the proposed notice and method of dissemination. The proposed notice, which was attached to the moving papers, contains the following information: A class action lawsuit has been filed on behalf of current and former Lowe's employees alleging Lowe's has failed to pay overtime compensation to certain of its hourly employees (a three paragraph description of plaintiffs' contentions and a one paragraph summary of Lowe's defense are also included); individuals who worked for Lowe's at any time since October 29, 1997 in an hourly position may be members of the proposed class; the attorneys for the plaintiffs in the lawsuit (who are identified in the proposed notice) wish to gather information from the recipients of the notice regarding the nature of their work at Lowe's, including any overtime they may have worked; recipients of the notice are under no obligation to contact plaintiffs' counsel; the attorneys for Lowe's (who are also identified in the proposed notice) or other representatives of Lowe's may also wish to discuss the case; recipients of the notice are under no obligation to provide information or to discuss the matter with attorneys for Lowe's or with any supervisor or manager at Lowe's; "[y]our employer may not retaliate against you in any manner for refusing to provide information"; and further information regarding the lawsuit is available at www.lowesovertimelawsuit.com, a website set up by plaintiffs' counsel.

In support of their motion, Parris and Lopez relied on Atari, Inc. v. Superior Court (1985) 166 Cal.App.3d 867, 212 Cal. Rptr. 773 (Atari), which held precertification communication with potential class members is appropriate, with prior court approval, in the absence of a showing of actual or threatened abuse of the class action process. Parris and Lopez also moved to compel responses to interrogatories they had previously served, seeking the names and addresses of current and former Lowe's employees, potential class members who were to be the recipients of the proposed notice.

Lowe's opposed the motions, arguing Parris and Lopez had not established a legitimate precertification need to communicate with potential class members or to discover their identities and personal information. Lowe's also opposed the motion to compel on procedural grounds.

After extensive briefing and a combined hearing on the two motions the trial court issued a minute order denying both motions without explanation or comment. Parris and Lopez filed a petition for writ of mandate on January 23, 2003. We issued an order to show cause on January 30, 2003. Briefing was completed on April 1, 2003. At our request the parties have submitted supplemental letter briefs addressing whether precertification communications with potential class members constitutes speech protected by the First Amendment for which no prior court approval is necessary, consistent with federal and state constitutional restrictions on prior restraints of speech.

DISCUSSION

1. Precertification Communication With Potential Class Members Is Speech Protected by the First Amendment and the California, Constitution and Requires No Prior Court Approval

A. General Free Speech Principles

i. The First Amendment

"[A]s a general matter, `the First Amendment means that government has no power to restrict expression because of its meaning, its ideas, its subject matter, or its content.'" (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 65, 103 S.Ct. 2875, 77 L.Ed.2d 469 (Bolger).)¹ "For noncommercial speech entitled to full First Amendment protection, a content-based regulation is valid under the First Amendment only if it can withstand strict scrutiny, which requires that the regulation be narrowly tailored (that is, the least restrictive means) to promote a compelling government interest. [Citations.]" (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 952, 119 Cal.Rptr.2d 296, 45 P.3d 243).

The preferred place of freedom of speech in the pantheon of constitutional values cannot be overstated: The right to freedom of speech is "one of the cornerstones of our society." (Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1232, 1241, 101 Cal.Rptr.2d 558.) Uninhibited speech "is more than self-expression; it is the essence of self-government." (Garrison v. Louisiana (1964) 379 U.S. 64, 74-75, 85 S.Ct. 209, 13 L.Ed.2d 125.)

Under the First Amendment, however, commercial speech enjoys a more limited degree of protection. "[T]he [federal] Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression." (Bolger, supra, 463 U.S. at pp. 64-65, 103 S.Ct. 2875.) Lawyer advertising falls in the category of constitutionally protected commercial speech. (Bates v. State Bar of Arizona (1977) 433 U.S. 350, 97 S.Ct. 2691, 53 L.Ed.2d 810.)²

"Commercial speech doctrine, in the context of advertising for professional services, may be summarized generally as follows: Truthful advertising related to lawful activities is entitled to the protections of the First Amendment. But when the particular content or method of the advertising suggests that it is inherently misleading or when experience has proved that in fact such advertising is subject to abuse, the States may impose appropriate restrictions. Misleading advertising may be prohibited entirely." (In re R.M.J. (1982) 455 U.S. 191, 203, 102 S.Ct. 929, 71 L.Ed.2d 64.) "The First Amendment principles governing state regulation of lawyer solicitations for pecuniary gain are by now familiar: `Commercial speech that is not false or deceptive and does not concern unlawful activities ... may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest.' [Citations.] Since state regulation of commercial speech `may extend only as far as the interest it serves,' [citation] state rules that are designed to prevent the `potential for deception and confusion ... may be no broader than reasonably necessary to prevent the' perceived evil. [Citation.]" (Shapero v. Kentucky Bar Assn. (1988) 486 U.S. 466, 472, 108 S.Ct. 1916, 100 L.Ed.2d 475.)

ii. The California Constitution

In terms more expansive than the First Amendment, article I, section 2, subdivision (a) of the California Constitution guarantees, "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." The protection afforded speech by this provision is broader than that provided by the First Amendment. (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d...