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BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #06^687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) • 1-11 / : /O
3 Victoria B. Rivapalacio (State Bar #275115)
Jeffrey S. Herman (State Bar #280058)
4 2255 Calle Clara
La Jolla, CA 92037
5 Telephone:(858)551-1223
Facsimile: (858) 551-1232
6
Attorneys for Plaintiff
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560-CU-OE-GDS
11 herself and on behalf of all persons similarly
situated. PLAINTIFF'S RESPONSIVE
12 SEPARATE STATEMENT OF
Plaintiff, DISPUTED MATERIAL FACTS IN
13 OPPOSITION TO DEFENDANT
H E A L T H NET OF CALIFORNIA,
14 INC.'S RENEWED MOTION FOR
HEALTH NET OF CALIFORNIA, INC., a SUMMARY ADJUDICATION
15 Caiifomia Corporation; and Does 1 through 50,
inclusive. Date: February 4, 2019
16 Time: 9:00 a.m.
Defendants. Dept.: 54
17 Reservation No.: 2380178
18 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: April 5, 2017
others similarly situated. FAC Filed: June 29, 2017
19 Consolidated Complaint Filed: Dec. 2, 2017
20 Plaintiff
Complaint Filed: August 1, 2017
21
22 HEALTH NET OF CALIFORNIA, INC., a
Caiifomia corporation; and DOES 1-50,
23 inclusive.
>v 24 Defendant.
25
26
B B
27
28
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
1 Pursuant to Code of Civil Procedure Section 437c(b) and Caiifomia Rule of Court
2 3.1350(d), Plaintiff hereby submits her Responsive Separate Statement Of Dispute Material Facts
3 In Opposition to Defendant's Renewed Motion for Summary Adjudication as to Plaintiffs Andrea
4 Spears and Tomas Arana's (collectively "Plaintiffs") claim that HNCA failed to properly
5 calculate their regular rates of pay for purposes of determining their overtime compensation, and
6 their derivative PAGA allegations based thereon. All exhibits are attached to the Declaration of
7 Aparajit Bhowmik filed herewith unless otherwise indicated.
8 SEPARATE STATEMENT OF UNDISPUTED FACTS AND EVIDENCE
9 1. THIRD CAUSE OF ACTION FOR FAILURE TO PAY HOURLY WAGES AND
10 FAILURE TO PAY OVERTIME WAGES
11 ISSUE 1: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged
failure to include cash benefits received pursuant to a bona fide benefits Plan
12 in Plaintiff Spears' regular rate of pay fails because cash benefits were
properly excluded from her regular rate calculation under the Benefit-Plan
13 Contributions Exception and Plaintiff Arana never received the cash benefit.
14 Undisputed Material Facts and Supporting Plaintiffs Response and Supporting Evidence:
Evidence:
15 1. Plaintiff Spears worked as a non-exempt 1. Undisputed
HNCA Customer Service Representative
16 from September 2014 to October 2016 in
Rancho Cordova.
17
Declaration of Diane C. Rodes (hereinafter
18 "Rodes Dec") H 4.
2. Plaintiff Arana began working out of the 2. Undisputed.
19 Rancho Cordova call center in 2008 and
continues to work there now. He started as
20 a non-exempt Customer Service
Representative for HNCA until his
21 promotion on or about November 14, 2015
to Contact Center Analyst, an exempt
22 position. Since June 2017, Plaintiff Arana
has been working as a Call Center Systems
23 Analyst 1, also an exempt position.
24
Rodes Dec, ^ 6.
25 3. Between January 1, 2001 and December 31, 3. Disputed as incomplete.
2016, HNI sponsored a cafeteria plan - a
26 written health and welfare plan - called the Defendant's Plan provided medical benefits, but
"Health Net, Inc. Associates Benefit Defendant also provided cash payments directly
27 Program" (the "Plan"). to employees who waived their right to medical
benefits and the plan was not adopted not just
28 Declaration of Debbie Colia ("Colia Dec"), HI "for the benefit of its employees" but rather was
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
2-3, Exhs. A-1. part of Defendant's effort "to provide associates
with a competitive benefits program that is part
2 of our total remuneration plan."
3 (See Exhibit 3. 2011-2015 Summary Plan
Description at p. 1; Exhibit 4 2016 Summary
4 Plan Description at p. 1.)'
5
(See also Exhibit 3 at HNCA000921; Exhibit 4 at
6 HNCA000764 ["To help you pay for the cost of
your benefits under the Health Net, Inc.
7 Associate Benefits Program, your Employer
provides you with 'Flex Dollars' that you can use
8 to pay for the cost of your optional benefits. In
most cases, if you use these Flex Dollars to pay
9 for before-tax benefits, these Flex Dollars will be
tax free to you.... If you waive coverage or you
10 have Flex Dollars left over after you pay the cost
of all of the optional benefits you elect, you will
11 receive a portion of your Flex Dollars as cash in
your paycheck and you will be taxed on this
12 amount."].)
13 (See also Exhibit 3 at HNCA000916; Exhibit 4 at
HNCA000755 [describing the term "employer"
14 in the Health Plan as the party that pays the cash
for waived medical benefits as Defendant says:
15 "You will see the terms 'Health Net' and 'the
Company' used throughout this SPD to refer to
16 Health Net, Inc. and all participating companies.
The term 'Employer' is used in this SPD to refer
17 to the company which is your direct
employer."].)
18
(See also Exhibit 3 at HNCA000916; Exhibit 4 at
19 page HNCA000755 [describing the plan as
resulting from Defendant's effort to "provide
20 associates with a competitive benefits program
that is part of [Defendant's] total remuneration
21 plan."].)
22 (See also Exhibit 6. PMK Deposition at 61:10-18
[cash payments for waiving benefits are directly
23 deposited into Plaintiffs bank account in wage
statement of taxed wages by Defendant directly
24 to Plaintiff].)
25
Cash payments for waiving benefits were only
26 provided when the actual medical or dental
benefits were waived and the employee did not
27 receive medical or dental coverage through the
28
' All Exhibits are attached to the Declaration of Aparajit Bhowmik filed concurrently herewith.
-2-
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
Plan.
2 (Exhibit 5. Colia Depo., 96:2-8, 137:10-16).
3
4 4. As the Plan sponsor, HNI administered the 4. Disputed and objection as vague and
Plan. ambiguous as to the terms "sponsor" and
5 "administered the plan."
Colia Dec, H 2.
6 Defendant paid cash payments for employees
who opted out of receiving medical benefits. To
7 the extent Defendant refers to "administered the
plan" as including paying cash in lieu of benefit
8 payments, then the fact is DISPUTED because
the plan documents do not say that the cash is
9 paid by a third party and, to the contrary, the plan
documents say that Defendant as the employer is
10 a first party not a third party who is making the
payments directly to Plaintiff.
11
(See Exhibit 3 at FTNCA000916; Exhibit 4 at
12 HNCA000755 ["You will see the terms 'Health
Net' and 'the Company' used throughout this
13 SPD to refer to Health Net, Inc. and all
participating companies. The term 'Employer' is
14 used in this SPD to refer to the company which is
your direct employer."].)
15
(See Exhibit 3 at HNCA000921; Exhibit 4 at
16 page HNCA000764 ["To help you pay for the
cost of your benefits under the Health Net, Inc.
17 Associate Benefits Program, your Employer
provides you with 'Flex Dollars' that you can use
18 to pay for the cost of your optional benefits.In
most cases, if you use these Flex Dollars to pay
19 for before-tax benefits, these Flex Dollars will
be tax free to you.... If you waive coverage or
20 you have Flex Dollars left over after you pay the
cost of all of the optional benefits you elect, you
21 will receive a portion of your Flex Dollars as
cash in your paycheck and you will be taxed
22 on this amount."].)^
23 HNCA is not a third party because HNI had
complete access to view HNCA's monetary
24 accounts. HNI is also not a third party because
all of HNCA's monetary accounts were under
25 HNI's Finance and Account Department.
26
(Exhibit 5, Colia Depo., 34:5-12, 84:18-85:6).
27
28 Emphasis added throughout unless otherwise indicated
-3-
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
HNCA was not a third party as Defendant
suggests because, according to Ms. Colia, the
2 financial accounts for both HNCA and HNI were
under HNI's Finance and Accounting Department
3 which controlled funds for both HNCA and HNI.
HNCA was also not a third party as Defendant
4 suggests because, as Ms. Colia testified, funds
between HNCA and HNI are not "moving" but
5 the Finance and Accounting Department was
merely "tracking" the funds between HNCA and
6 HNI.
7 (See Exhibit 5, Colia Depo., at 34:5-12
8 ("Through the Finance and Accounting
Department the funds would move from accounts
9 between [HNI and HNCA].", 48:15-24 ("1 think
aboutfinancialaccounting and tracking money.
10 And, yes, it's correct that Finance and Accounting
[Department] would track the funds associated
11 with the plans [between HNCA and HNI].")
12 Additionally, if Defendant is referring to the term
"contributions" as those payments for employees
13 who waived medical benefits and elected to
receive the taxed, cash "MedFIx Wave" or
14 "DenFlx Wave" payments, then the "fact" is
DISPUTED as vague and ambiguous and as
15 contradictory to the Plan documents on the basis
that the Plan documents do not at any point state
16 that the cash provided to employees in exchange
for not receiving medical or dental benefits are
17 actually health and welfare benefits.
18 (See Exhibit "A" to the Colia Declaration filed
with the Renewed MSJ; see also Exhibit 5, Colia
19 Depo., at 129:9-131:25 [the declarant, after
reviewing the entirety of the Advantages Plan
20 document, confirms that there is no mention of
the cash payment for waiver of benefits even
21 though the Plan does address the payment of Flex
Dollars which may occur in circumstances where
22 benefits are elected]).
23 Cash payments for waiving benefits were only
provided when the actual medical or dental
24 benefits were waived and the employee did not
receive medical or dental coverage through the
25 Plan.
26 (Exhibit 5, Colia Depo., 96:2-8, 137:10-16).
27
The Plan did not categorize cash provided to
28 employees who waived coverage as a benefit.
-4-
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
(See Exhibh 3 at HNCA000920-1 outlining all
2 core and optional benefits available under the
Plan; see also Exhibit 5, Colia Depo., 138:11-
3 139:5).
4
Ms. Colia, during her deposition, did not know
5 whether HNI provided employee handbooks for
HNCA employees, did not know whether HNCA
6 had separate human resources employees who
were not employees of HNI and did not know the
7 location of HNCA's headquarters, confirming
that Ms. Colia's declaration statements regarding
8 whether HNCA and HNI were third parties lacks
foundation.
9
(See Exhibit 5, Colia Depo., at 20:19-23:1).
10
To the extent Defendant's "fact" is intending to
11 claim that HNCA paid the actual costs of benefits
with respect to the cash payments to employees
12 who opted out of receiving medical benefits, that
"fact" is DISPUTED. The cash payments for
13 waiving benefits are not actual costs of benefits.
The Compensation and Benefits Committee, in
14 determining the costs of benefits, approved
coverage and premium rates based on a number
15 of factors including tiers of coverage and plan
type which were provided to the employees
16 during the open enrollment process to select
benefits and coverages. Conversely, the amounts
17 provided to employees as cash payments for
waiving benefits was unrelated to the
18 Compensation and Benefits Committee's
determination of costs of benefits. The amounts
19 provided to employees as cash payments for
waiving benefits were uniform and were
20 determined by the EO benefits department based
on a collection of market data and a review of
21 "what other competitive and peer reviewed
companies were doing in the form of a waive
22 credit for opting out of medical and dental
plans...."
23
(See Exhibit 5, Colia Depo., 42:22-43:19, 46:14-
24 47:2; 144:23-146:4).
25
Further DISPUTED on the basis that the
26 statement lacks foundation because the declarant
lacks knowledge regarding the structure,
27 mechanics, and processes associated with
monetary accounts for both HNI and HNCA and,
28 therefore, has no basis to claim HNCA is a third
-5-
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
party.
2 (See Exhibit 5, Colia Depo at 98:2-9 ["Yeah, 1
don't know the structure of the accounting centers
3 for the various components of the Advantages
plan."], 97:13-24 [declarant confirming her lack
4 of familiarity with the account structure related
waive payments to be distributed to the Class
5 Members], 34:21-35:1 ["I don't know the
sequencing of the accounting process...."], 35:2-
6 15 [The declarant does not know whether
accounting was on an individual basis or benefits
7 plan basis. The declarant "believe[s]" she knows
but does not know with certainty how the
8 accounts were organized]).
9
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-6-
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
5. HNCA adopted the Plan for the benefit of 5. Disputed and objection as vague and
its employees. ambiguous as to the phrase "for the benefit of its
2 employees."
Declaration of Debbie Colia ("Colia Dec"), t
3 2, Exhs. A-1. Plaintiff DISPUTES Defendant's attempt to
characterize cash in lieu of benefit payments as a
4 benefit itself. Cash payments for waiving benefits
were only provided when the actual medical or
5 dental benefits were waived and the employee
did not receive medical or dental coverage
6 through the Plan. (Exhibit 5. Colia Depo., 96:2-
8, 137:10-16).
7
8 The Plan did not categorize cash provided to
employees who waived coverage as a benefit.
9 {See Exhibit 3 at HNCA000920-I outlining all
core and optional benefits available under the
10 Plan; see also Exhibit 5, Colia Depo., 138:11-
139:5).
11
Plaintiff incorporates by reference herein the
12 responses and supporting arguments outlined
hereinaboe regarding disputed fact number 4.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF qALIFORNIA, INC.'S RENEWED MSA
6. The Plan was governed by Section 125 of 6. Undisputed.
the Intemal Revenue Code.
2
Colia Dec, 14.
3
7. The Plan was subject to the Employee 7. Undisputed.
4 Retirement Income Security Act.
5 Colia Dec, 114.
8. The Plan was overseen by a Benefits 8. Disputed as vague as to "overseen,"
6 Committee. compound, immaterial to whether cash in lieu of
bonus payments should be included in the regular
7 Colia Dec, 114. rate, and as calling for a legal conclusion.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-8-
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
I 9. The HNI Benefits Committee had fiduciary 9. Disputed and objection as vague and
duties and responsibilities requiring the ambiguous as to the phrase "administering the
2 Committee members to "discharge their Plan."
duties with respect to the Plan (i) solely in
3 the interest of the Associates, (ii) for the Defendant paid cash payments for employees
exclusive purpose of providing benefits to who opted out of receiving medical benefits. To
4 Associates and of defraying reasonable the extent Defendant refers to "administering the
expenses of administering the Plan and (iii) plan" as including paying cash in lieu of benefit
5 with the care, skill, prudence, and diligence payments, then the fact is DISPUTED because
under the circumstances then prevailing that the plan documents do not say that the cash is
6 a prudent person acting in a like capacity paid by a third party and, to the contrary, the plan
and familiar with such matters would use in documents say that Defendant as the employer is
7 the conduct of an enterprise of a like a first party not a third party who is making the
character and with like aims, to the extent payments directly to Plaintiff.
8 the Committee's duties are subject to
ERISA." (See Exhibit 3 at HNCA000916; Exhibit 4 at
9
HNCA000755 ["You will see the terms 'Health
Colia Dec, 114, Exh. A, §7.1(e) Net' and 'the Company' used throughout this
10
SPD to refer to Health Net, Inc. and all
11 participating companies. The term 'Employer' is
used in this SPD to refer to the company which is
12 your direct employer."].)
13 (See Exhibit 3 at HNCA000921: Exhibit 4 at
HNCA000764 ["To help you pay for the cost of
14 your benefits under the Health Net, Inc.
Associate Benefits Program, your Employer
15 provides you with 'Flex Dollars' that you can use
to pay for the cost of your optional benefits. In
16 most cases, if you use these Flex Dollars to pay
for before-tax benefits, these Flex Dollars will be
17 tax free to you.... If you waive coverage or you
have Flex Dollars left over after you pay the cost
18 of all of the optional benefits you elect, you will
receive a portion of your Flex Dollars as cash in
19 your paycheck and you will be taxed on this
amount."].)
20
Disputed as incomplete as the ITNl Benefits
21 Committee also served as the benefits committee
for HNCA.
22
(See Exhibit 5. Colia Depo., 14:25-15:7
23 [confirming that HNCA did not have a separate
compensation and benefits committee apart from
24 HNI]).
10. HNI as the plan sponsor and administrator 10. Disputed and objection as vague and
25 ensured that HNCA's employer ambiguous as to the terms "sponsor,"
contributions to the Plan were tracked. "administrator" and "contributions"
26
Colia Dec, 14.
27 Defendant paid cash payments for employees
who opted out of receiving medical benefits. To
28
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
the extent Defendant refers to "administrator" as
a role that included paying cash in lieu of benefit
2
payments, then the fact is DISPUTED because
3 the plan documents do not say that the cash is
paid by a third party and, to the contrary, the plan
4 documents say that Defendant as the employer is
a first party not a third party who is making the
5 payments directly to Plaintiff.
6
(See Exhibit 3 at HNCA000916; Exhibit 4 at
7 FrNCA000755 ["You will see the terms 'Health
Net' and 'the Company' used throughout this
8 SPD to refer to Health Net, Inc. and all
participating companies. The term 'Employer' is
9 used in this SPD to refer to the company which is
10 your direct employer."].)
11 Further, if Defendant is referring to the term
"contributions" as those payments for employees
12 who waived medical benefits and elected to
receive the taxed, cash "MedFIx Wave" or
13 "DenFlx Wave" payments, then the "fact" is
14 DISPUTED as vague and ambiguous on the basis
that Defendant also paid cash directly to Plaintiff
15 and she could spend this wage on anything she
wanted as opposed to only on "health and welfare
16 benefits" and these cash payments were part of a
total remuneration package from Defendant to
17 employees.
18
(See Exhibit 3 at HNCA000916; Exhibit 4 at
19 HNCA000755 [describing the plan as resulting
from Defendant's effort to "provide associates
20 with a competitive benefits program that is part
of [Defendant's] total remuneration
21
plan."1:Exhibit 7 [Rodes Depo] at 64:4-22.)
22
(See Exhibit 3 at HNCA000921; Exhibit 4 at
23 page HNCA000764 ["To help you pay for the
cost of your benefits under the Health Net, Inc.
24 Associate Benefits Program, your Employer
provides you with 'Flex Dollars' that you can
25
use to pay for the cost of your optional benefits.
26 In most cases, if you use these Flex Dollars to
pay for before-tax benefits, these Flex Dollars
27 will be tax free to you.... If you waive coverage
or you have Flex Dollars left over after you
28
10
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
I pay the cost of all of the optional benefits you
elect, you will receive a portion of your Flex
2
Dollars as cash in your paycheck and you will
3 be taxed on this amount."].)
4 (See Exhibit 5, Colia Depo at 143:24-144:19
[confirming that cash payments provided to
5 employees who did not elect to receive medical
benefits could be spent in any manner the
6
employee chooses; "yes, they can do whatever
7 they want with [medicalfiexwaive and dental
flex waive payments]"]).
8
Further DISPUTED on the basis that the
9 statement lacks foundation because the declarant
10 lacks knowledge regarding the structure,
mechanics, and processes associated with
11 monetary accounts for both HNI and HNCA.
12 (See Exhibit 5. Colia Depo at 98:2-9 ["Yeah, I
don't know the structure of the accounting
13 centers for the various components of the
14 Advantages plan."], 97:13-24 [declarant
confirming her lack of familiarity with the
15 account structure related waive payments to be
distributed to the Class Members], 34:21-35:1 ["I
16 don't know the sequencing of the accounting
process...."], 35:2-15 [The declarant does not
17 know whether accounting was on an individual
basis or benefits plan basis. The declarant
18
"believe[s]" but does not know how the accounts
19 were organized]).
11. HNI as the plan sponsor and administrator 11. Disputed and objection as vague and
20 ensured that HNCA's employer ambiguous as to the terms "sponsor,"
contributions to the Plan were kept in a "administrator," "contributions," and "separate
21 separate account.
account."
22 Colia Dec, 14.
Defendant paid cash payments for employees
23 who opted out of receiving medical benefits.
24 To the extent Defendant refers to "administrator"
25 as a role that included paying cash in lieu of
benefit payments, then the fact is DISPUTED
26 because the plan documents do not say that the
cash is paid by a third party and, to the contrary,
27 the plan documents say that Defendant as the
employer is a first party not a third party who is
28
- 11
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
making the payments directly to Plaintiff.
2
(See Exhibit 3 at HNCA000916; Exhibit 4 at
3 HNCA000755 ["You will see the terms 'Health
Net' and 'the Company' used throughout this
4 SPD to refer to Health Net, Inc. and all
participating companies. The term 'Employer' is
5 used in this SPD to refer to the company which is
your direct employer."].)
6
7 Further, if Defendant is referring to the term
"contributions" as those payments for employees
8 who waived medical benefits and elected to
receive the tctxed, cash "MedFIx Wave" or
9 "DenFlx Wave" payments, then the "fact" is
10 DISPUTED as vague and ambiguous on the basis
that Defendant also paid cash directly to Plaintiff
11 and she could spend this wage on anything she
wanted as opposed to only on "health and welfare
12 benefits" and these cash payments were part of a
total remuneration package from Defendant to
13 employees.
14
(See Exhibit 3 at HNCA000916; Exhibit 4 at
15 HNCA000755 [describing the plan as resulting
from Defendant's effort to "provide associates
16 with a competitive benefits program that is part
of [Defendant's] total remuneration plan."];
17 Exhibit 7 [Rodes Depo] at 64:4-22.)
18
19 (See Exhibit 3 at HNCA000921; Exhibit 4 at
HNCA000764 ["To help you pay for the cost of
20 your benefits under the Health Net, Inc.
Associate Benefits Program, your Employer
21 provides you with 'Flex Dollars' that you can
use to pay for the cost of your optional benefits.
22 In most cases, if you use these Flex Dollars to
pay for before-tax benefits, these Flex Dollars
23 will be tax free to you. ... Ifyou waive coverage
or you have Flex Dollars left over after you
24 pay the cost of all of the optional benefits you
elect, you will receive a portion ofyour Flex
25 Dollars as cash in ybur paycheck and you will
be taxed on this amount."].)
26
Further, if Defendant is stating as a "fact" that
27 "MedFIx Wave" or "DenFlx Wave" cash in lieu
of benefits payments are maintained in the same
28
12
PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION
TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA
account with contributions for optional benefits
under the Plan, this "fact" is DISPUTED because
2 Colia testified that "MedFIx Wave" and "DenFlx
Wave" payments were maintained in accounts
3 entirely separate from the accounts associated
with contributions for optional benefits.
4
(See Exhibit 5. Colia Depo., at 38:5-16, 72:3-8,
5 156:5-21 (confirming that money maintained in
the sub-accounts holding "MedFIx Wave" and
6 "DenFlx Wave" payments were "earmarked" to
7 be provided to employees "for waiving, opting
out of, medical and/or dental [benefits]).
8
Further DISPUTED on the basis that the
9 statement lacks foundation because the declarant
lacks knowledge regarding the structure,
10 mechanics, and processes associated with
11 monetary accounts for both HNI and HNCA.
12 (See Exhibit 5. Colia Depo at 98:2-9 ["Yeah, I
don't know the structure ofthe accounting
13 centers for the various components of the
Advantages plan."], 97:13-24 [declarant
14 confirming her lack of familiarity with the
account structure related waive payments to be
15 distributed to the Class Members], 34:21-35:1 ["I
don't know the sequencing ofthe accounting
16 process...."], 35:2-15 [The declarant does not
know whether accounting was on an individual
17 basis or benefits plan basis. The declarant
"believe[s]" but does not know how the accounts
18 were organized]).
19 Indeed, the scope of
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BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #06^687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) • 1-11 / : /O 3 Victoria B. Rivapalacio (State Bar #275115) Jeffrey S. Herman (State Bar #280058) 4 2255 Calle Clara La Jolla, CA 92037 5 Telephone:(858)551-1223 Facsimile: (858) 551-1232 6 Attorneys for Plaintiff 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560-CU-OE-GDS 11 herself and on behalf of all persons similarly situated. PLAINTIFF'S RESPONSIVE 12 SEPARATE STATEMENT OF Plaintiff, DISPUTED MATERIAL FACTS IN 13 OPPOSITION TO DEFENDANT H E A L T H NET OF CALIFORNIA, 14 INC.'S RENEWED MOTION FOR HEALTH NET OF CALIFORNIA, INC., a SUMMARY ADJUDICATION 15 Caiifomia Corporation; and Does 1 through 50, inclusive. Date: February 4, 2019 16 Time: 9:00 a.m. Defendants. Dept.: 54 17 Reservation No.: 2380178 18 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: April 5, 2017 others similarly situated. FAC Filed: June 29, 2017 19 Consolidated Complaint Filed: Dec. 2, 2017 20 Plaintiff Complaint Filed: August 1, 2017 21 22 HEALTH NET OF CALIFORNIA, INC., a Caiifomia corporation; and DOES 1-50, 23 inclusive. >v 24 Defendant. 25 26 B B 27 28 PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA 1 Pursuant to Code of Civil Procedure Section 437c(b) and Caiifomia Rule of Court 2 3.1350(d), Plaintiff hereby submits her Responsive Separate Statement Of Dispute Material Facts 3 In Opposition to Defendant's Renewed Motion for Summary Adjudication as to Plaintiffs Andrea 4 Spears and Tomas Arana's (collectively "Plaintiffs") claim that HNCA failed to properly 5 calculate their regular rates of pay for purposes of determining their overtime compensation, and 6 their derivative PAGA allegations based thereon. All exhibits are attached to the Declaration of 7 Aparajit Bhowmik filed herewith unless otherwise indicated. 8 SEPARATE STATEMENT OF UNDISPUTED FACTS AND EVIDENCE 9 1. THIRD CAUSE OF ACTION FOR FAILURE TO PAY HOURLY WAGES AND 10 FAILURE TO PAY OVERTIME WAGES 11 ISSUE 1: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include cash benefits received pursuant to a bona fide benefits Plan 12 in Plaintiff Spears' regular rate of pay fails because cash benefits were properly excluded from her regular rate calculation under the Benefit-Plan 13 Contributions Exception and Plaintiff Arana never received the cash benefit. 14 Undisputed Material Facts and Supporting Plaintiffs Response and Supporting Evidence: Evidence: 15 1. Plaintiff Spears worked as a non-exempt 1. Undisputed HNCA Customer Service Representative 16 from September 2014 to October 2016 in Rancho Cordova. 17 Declaration of Diane C. Rodes (hereinafter 18 "Rodes Dec") H 4. 2. Plaintiff Arana began working out of the 2. Undisputed. 19 Rancho Cordova call center in 2008 and continues to work there now. He started as 20 a non-exempt Customer Service Representative for HNCA until his 21 promotion on or about November 14, 2015 to Contact Center Analyst, an exempt 22 position. Since June 2017, Plaintiff Arana has been working as a Call Center Systems 23 Analyst 1, also an exempt position. 24 Rodes Dec, ^ 6. 25 3. Between January 1, 2001 and December 31, 3. Disputed as incomplete. 2016, HNI sponsored a cafeteria plan - a 26 written health and welfare plan - called the Defendant's Plan provided medical benefits, but "Health Net, Inc. Associates Benefit Defendant also provided cash payments directly 27 Program" (the "Plan"). to employees who waived their right to medical benefits and the plan was not adopted not just 28 Declaration of Debbie Colia ("Colia Dec"), HI "for the benefit of its employees" but rather was PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA 2-3, Exhs. A-1. part of Defendant's effort "to provide associates with a competitive benefits program that is part 2 of our total remuneration plan." 3 (See Exhibit 3. 2011-2015 Summary Plan Description at p. 1; Exhibit 4 2016 Summary 4 Plan Description at p. 1.)' 5 (See also Exhibit 3 at HNCA000921; Exhibit 4 at 6 HNCA000764 ["To help you pay for the cost of your benefits under the Health Net, Inc. 7 Associate Benefits Program, your Employer provides you with 'Flex Dollars' that you can use 8 to pay for the cost of your optional benefits. In most cases, if you use these Flex Dollars to pay 9 for before-tax benefits, these Flex Dollars will be tax free to you.... If you waive coverage or you 10 have Flex Dollars left over after you pay the cost of all of the optional benefits you elect, you will 11 receive a portion of your Flex Dollars as cash in your paycheck and you will be taxed on this 12 amount."].) 13 (See also Exhibit 3 at HNCA000916; Exhibit 4 at HNCA000755 [describing the term "employer" 14 in the Health Plan as the party that pays the cash for waived medical benefits as Defendant says: 15 "You will see the terms 'Health Net' and 'the Company' used throughout this SPD to refer to 16 Health Net, Inc. and all participating companies. The term 'Employer' is used in this SPD to refer 17 to the company which is your direct employer."].) 18 (See also Exhibit 3 at HNCA000916; Exhibit 4 at 19 page HNCA000755 [describing the plan as resulting from Defendant's effort to "provide 20 associates with a competitive benefits program that is part of [Defendant's] total remuneration 21 plan."].) 22 (See also Exhibit 6. PMK Deposition at 61:10-18 [cash payments for waiving benefits are directly 23 deposited into Plaintiffs bank account in wage statement of taxed wages by Defendant directly 24 to Plaintiff].) 25 Cash payments for waiving benefits were only 26 provided when the actual medical or dental benefits were waived and the employee did not 27 receive medical or dental coverage through the 28 ' All Exhibits are attached to the Declaration of Aparajit Bhowmik filed concurrently herewith. -2- PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA Plan. 2 (Exhibit 5. Colia Depo., 96:2-8, 137:10-16). 3 4 4. As the Plan sponsor, HNI administered the 4. Disputed and objection as vague and Plan. ambiguous as to the terms "sponsor" and 5 "administered the plan." Colia Dec, H 2. 6 Defendant paid cash payments for employees who opted out of receiving medical benefits. To 7 the extent Defendant refers to "administered the plan" as including paying cash in lieu of benefit 8 payments, then the fact is DISPUTED because the plan documents do not say that the cash is 9 paid by a third party and, to the contrary, the plan documents say that Defendant as the employer is 10 a first party not a third party who is making the payments directly to Plaintiff. 11 (See Exhibit 3 at FTNCA000916; Exhibit 4 at 12 HNCA000755 ["You will see the terms 'Health Net' and 'the Company' used throughout this 13 SPD to refer to Health Net, Inc. and all participating companies. The term 'Employer' is 14 used in this SPD to refer to the company which is your direct employer."].) 15 (See Exhibit 3 at HNCA000921; Exhibit 4 at 16 page HNCA000764 ["To help you pay for the cost of your benefits under the Health Net, Inc. 17 Associate Benefits Program, your Employer provides you with 'Flex Dollars' that you can use 18 to pay for the cost of your optional benefits.In most cases, if you use these Flex Dollars to pay 19 for before-tax benefits, these Flex Dollars will be tax free to you.... If you waive coverage or 20 you have Flex Dollars left over after you pay the cost of all of the optional benefits you elect, you 21 will receive a portion of your Flex Dollars as cash in your paycheck and you will be taxed 22 on this amount."].)^ 23 HNCA is not a third party because HNI had complete access to view HNCA's monetary 24 accounts. HNI is also not a third party because all of HNCA's monetary accounts were under 25 HNI's Finance and Account Department. 26 (Exhibit 5, Colia Depo., 34:5-12, 84:18-85:6). 27 28 Emphasis added throughout unless otherwise indicated -3- PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA HNCA was not a third party as Defendant suggests because, according to Ms. Colia, the 2 financial accounts for both HNCA and HNI were under HNI's Finance and Accounting Department 3 which controlled funds for both HNCA and HNI. HNCA was also not a third party as Defendant 4 suggests because, as Ms. Colia testified, funds between HNCA and HNI are not "moving" but 5 the Finance and Accounting Department was merely "tracking" the funds between HNCA and 6 HNI. 7 (See Exhibit 5, Colia Depo., at 34:5-12 8 ("Through the Finance and Accounting Department the funds would move from accounts 9 between [HNI and HNCA].", 48:15-24 ("1 think aboutfinancialaccounting and tracking money. 10 And, yes, it's correct that Finance and Accounting [Department] would track the funds associated 11 with the plans [between HNCA and HNI].") 12 Additionally, if Defendant is referring to the term "contributions" as those payments for employees 13 who waived medical benefits and elected to receive the taxed, cash "MedFIx Wave" or 14 "DenFlx Wave" payments, then the "fact" is DISPUTED as vague and ambiguous and as 15 contradictory to the Plan documents on the basis that the Plan documents do not at any point state 16 that the cash provided to employees in exchange for not receiving medical or dental benefits are 17 actually health and welfare benefits. 18 (See Exhibit "A" to the Colia Declaration filed with the Renewed MSJ; see also Exhibit 5, Colia 19 Depo., at 129:9-131:25 [the declarant, after reviewing the entirety of the Advantages Plan 20 document, confirms that there is no mention of the cash payment for waiver of benefits even 21 though the Plan does address the payment of Flex Dollars which may occur in circumstances where 22 benefits are elected]). 23 Cash payments for waiving benefits were only provided when the actual medical or dental 24 benefits were waived and the employee did not receive medical or dental coverage through the 25 Plan. 26 (Exhibit 5, Colia Depo., 96:2-8, 137:10-16). 27 The Plan did not categorize cash provided to 28 employees who waived coverage as a benefit. -4- PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA (See Exhibh 3 at HNCA000920-1 outlining all 2 core and optional benefits available under the Plan; see also Exhibit 5, Colia Depo., 138:11- 3 139:5). 4 Ms. Colia, during her deposition, did not know 5 whether HNI provided employee handbooks for HNCA employees, did not know whether HNCA 6 had separate human resources employees who were not employees of HNI and did not know the 7 location of HNCA's headquarters, confirming that Ms. Colia's declaration statements regarding 8 whether HNCA and HNI were third parties lacks foundation. 9 (See Exhibit 5, Colia Depo., at 20:19-23:1). 10 To the extent Defendant's "fact" is intending to 11 claim that HNCA paid the actual costs of benefits with respect to the cash payments to employees 12 who opted out of receiving medical benefits, that "fact" is DISPUTED. The cash payments for 13 waiving benefits are not actual costs of benefits. The Compensation and Benefits Committee, in 14 determining the costs of benefits, approved coverage and premium rates based on a number 15 of factors including tiers of coverage and plan type which were provided to the employees 16 during the open enrollment process to select benefits and coverages. Conversely, the amounts 17 provided to employees as cash payments for waiving benefits was unrelated to the 18 Compensation and Benefits Committee's determination of costs of benefits. The amounts 19 provided to employees as cash payments for waiving benefits were uniform and were 20 determined by the EO benefits department based on a collection of market data and a review of 21 "what other competitive and peer reviewed companies were doing in the form of a waive 22 credit for opting out of medical and dental plans...." 23 (See Exhibit 5, Colia Depo., 42:22-43:19, 46:14- 24 47:2; 144:23-146:4). 25 Further DISPUTED on the basis that the 26 statement lacks foundation because the declarant lacks knowledge regarding the structure, 27 mechanics, and processes associated with monetary accounts for both HNI and HNCA and, 28 therefore, has no basis to claim HNCA is a third -5- PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA party. 2 (See Exhibit 5, Colia Depo at 98:2-9 ["Yeah, 1 don't know the structure of the accounting centers 3 for the various components of the Advantages plan."], 97:13-24 [declarant confirming her lack 4 of familiarity with the account structure related waive payments to be distributed to the Class 5 Members], 34:21-35:1 ["I don't know the sequencing of the accounting process...."], 35:2- 6 15 [The declarant does not know whether accounting was on an individual basis or benefits 7 plan basis. The declarant "believe[s]" she knows but does not know with certainty how the 8 accounts were organized]). 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6- PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA 5. HNCA adopted the Plan for the benefit of 5. Disputed and objection as vague and its employees. ambiguous as to the phrase "for the benefit of its 2 employees." Declaration of Debbie Colia ("Colia Dec"), t 3 2, Exhs. A-1. Plaintiff DISPUTES Defendant's attempt to characterize cash in lieu of benefit payments as a 4 benefit itself. Cash payments for waiving benefits were only provided when the actual medical or 5 dental benefits were waived and the employee did not receive medical or dental coverage 6 through the Plan. (Exhibit 5. Colia Depo., 96:2- 8, 137:10-16). 7 8 The Plan did not categorize cash provided to employees who waived coverage as a benefit. 9 {See Exhibit 3 at HNCA000920-I outlining all core and optional benefits available under the 10 Plan; see also Exhibit 5, Colia Depo., 138:11- 139:5). 11 Plaintiff incorporates by reference herein the 12 responses and supporting arguments outlined hereinaboe regarding disputed fact number 4. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF qALIFORNIA, INC.'S RENEWED MSA 6. The Plan was governed by Section 125 of 6. Undisputed. the Intemal Revenue Code. 2 Colia Dec, 14. 3 7. The Plan was subject to the Employee 7. Undisputed. 4 Retirement Income Security Act. 5 Colia Dec, 114. 8. The Plan was overseen by a Benefits 8. Disputed as vague as to "overseen," 6 Committee. compound, immaterial to whether cash in lieu of bonus payments should be included in the regular 7 Colia Dec, 114. rate, and as calling for a legal conclusion. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA I 9. The HNI Benefits Committee had fiduciary 9. Disputed and objection as vague and duties and responsibilities requiring the ambiguous as to the phrase "administering the 2 Committee members to "discharge their Plan." duties with respect to the Plan (i) solely in 3 the interest of the Associates, (ii) for the Defendant paid cash payments for employees exclusive purpose of providing benefits to who opted out of receiving medical benefits. To 4 Associates and of defraying reasonable the extent Defendant refers to "administering the expenses of administering the Plan and (iii) plan" as including paying cash in lieu of benefit 5 with the care, skill, prudence, and diligence payments, then the fact is DISPUTED because under the circumstances then prevailing that the plan documents do not say that the cash is 6 a prudent person acting in a like capacity paid by a third party and, to the contrary, the plan and familiar with such matters would use in documents say that Defendant as the employer is 7 the conduct of an enterprise of a like a first party not a third party who is making the character and with like aims, to the extent payments directly to Plaintiff. 8 the Committee's duties are subject to ERISA." (See Exhibit 3 at HNCA000916; Exhibit 4 at 9 HNCA000755 ["You will see the terms 'Health Colia Dec, 114, Exh. A, §7.1(e) Net' and 'the Company' used throughout this 10 SPD to refer to Health Net, Inc. and all 11 participating companies. The term 'Employer' is used in this SPD to refer to the company which is 12 your direct employer."].) 13 (See Exhibit 3 at HNCA000921: Exhibit 4 at HNCA000764 ["To help you pay for the cost of 14 your benefits under the Health Net, Inc. Associate Benefits Program, your Employer 15 provides you with 'Flex Dollars' that you can use to pay for the cost of your optional benefits. In 16 most cases, if you use these Flex Dollars to pay for before-tax benefits, these Flex Dollars will be 17 tax free to you.... If you waive coverage or you have Flex Dollars left over after you pay the cost 18 of all of the optional benefits you elect, you will receive a portion of your Flex Dollars as cash in 19 your paycheck and you will be taxed on this amount."].) 20 Disputed as incomplete as the ITNl Benefits 21 Committee also served as the benefits committee for HNCA. 22 (See Exhibit 5. Colia Depo., 14:25-15:7 23 [confirming that HNCA did not have a separate compensation and benefits committee apart from 24 HNI]). 10. HNI as the plan sponsor and administrator 10. Disputed and objection as vague and 25 ensured that HNCA's employer ambiguous as to the terms "sponsor," contributions to the Plan were tracked. "administrator" and "contributions" 26 Colia Dec, 14. 27 Defendant paid cash payments for employees who opted out of receiving medical benefits. To 28 PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA the extent Defendant refers to "administrator" as a role that included paying cash in lieu of benefit 2 payments, then the fact is DISPUTED because 3 the plan documents do not say that the cash is paid by a third party and, to the contrary, the plan 4 documents say that Defendant as the employer is a first party not a third party who is making the 5 payments directly to Plaintiff. 6 (See Exhibit 3 at HNCA000916; Exhibit 4 at 7 FrNCA000755 ["You will see the terms 'Health Net' and 'the Company' used throughout this 8 SPD to refer to Health Net, Inc. and all participating companies. The term 'Employer' is 9 used in this SPD to refer to the company which is 10 your direct employer."].) 11 Further, if Defendant is referring to the term "contributions" as those payments for employees 12 who waived medical benefits and elected to receive the taxed, cash "MedFIx Wave" or 13 "DenFlx Wave" payments, then the "fact" is 14 DISPUTED as vague and ambiguous on the basis that Defendant also paid cash directly to Plaintiff 15 and she could spend this wage on anything she wanted as opposed to only on "health and welfare 16 benefits" and these cash payments were part of a total remuneration package from Defendant to 17 employees. 18 (See Exhibit 3 at HNCA000916; Exhibit 4 at 19 HNCA000755 [describing the plan as resulting from Defendant's effort to "provide associates 20 with a competitive benefits program that is part of [Defendant's] total remuneration 21 plan."1:Exhibit 7 [Rodes Depo] at 64:4-22.) 22 (See Exhibit 3 at HNCA000921; Exhibit 4 at 23 page HNCA000764 ["To help you pay for the cost of your benefits under the Health Net, Inc. 24 Associate Benefits Program, your Employer provides you with 'Flex Dollars' that you can 25 use to pay for the cost of your optional benefits. 26 In most cases, if you use these Flex Dollars to pay for before-tax benefits, these Flex Dollars 27 will be tax free to you.... If you waive coverage or you have Flex Dollars left over after you 28 10 PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA I pay the cost of all of the optional benefits you elect, you will receive a portion of your Flex 2 Dollars as cash in your paycheck and you will 3 be taxed on this amount."].) 4 (See Exhibit 5, Colia Depo at 143:24-144:19 [confirming that cash payments provided to 5 employees who did not elect to receive medical benefits could be spent in any manner the 6 employee chooses; "yes, they can do whatever 7 they want with [medicalfiexwaive and dental flex waive payments]"]). 8 Further DISPUTED on the basis that the 9 statement lacks foundation because the declarant 10 lacks knowledge regarding the structure, mechanics, and processes associated with 11 monetary accounts for both HNI and HNCA. 12 (See Exhibit 5. Colia Depo at 98:2-9 ["Yeah, I don't know the structure of the accounting 13 centers for the various components of the 14 Advantages plan."], 97:13-24 [declarant confirming her lack of familiarity with the 15 account structure related waive payments to be distributed to the Class Members], 34:21-35:1 ["I 16 don't know the sequencing of the accounting process...."], 35:2-15 [The declarant does not 17 know whether accounting was on an individual basis or benefits plan basis. The declarant 18 "believe[s]" but does not know how the accounts 19 were organized]). 11. HNI as the plan sponsor and administrator 11. Disputed and objection as vague and 20 ensured that HNCA's employer ambiguous as to the terms "sponsor," contributions to the Plan were kept in a "administrator," "contributions," and "separate 21 separate account. account." 22 Colia Dec, 14. Defendant paid cash payments for employees 23 who opted out of receiving medical benefits. 24 To the extent Defendant refers to "administrator" 25 as a role that included paying cash in lieu of benefit payments, then the fact is DISPUTED 26 because the plan documents do not say that the cash is paid by a third party and, to the contrary, 27 the plan documents say that Defendant as the employer is a first party not a third party who is 28 - 11 PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA making the payments directly to Plaintiff. 2 (See Exhibit 3 at HNCA000916; Exhibit 4 at 3 HNCA000755 ["You will see the terms 'Health Net' and 'the Company' used throughout this 4 SPD to refer to Health Net, Inc. and all participating companies. The term 'Employer' is 5 used in this SPD to refer to the company which is your direct employer."].) 6 7 Further, if Defendant is referring to the term "contributions" as those payments for employees 8 who waived medical benefits and elected to receive the tctxed, cash "MedFIx Wave" or 9 "DenFlx Wave" payments, then the "fact" is 10 DISPUTED as vague and ambiguous on the basis that Defendant also paid cash directly to Plaintiff 11 and she could spend this wage on anything she wanted as opposed to only on "health and welfare 12 benefits" and these cash payments were part of a total remuneration package from Defendant to 13 employees. 14 (See Exhibit 3 at HNCA000916; Exhibit 4 at 15 HNCA000755 [describing the plan as resulting from Defendant's effort to "provide associates 16 with a competitive benefits program that is part of [Defendant's] total remuneration plan."]; 17 Exhibit 7 [Rodes Depo] at 64:4-22.) 18 19 (See Exhibit 3 at HNCA000921; Exhibit 4 at HNCA000764 ["To help you pay for the cost of 20 your benefits under the Health Net, Inc. Associate Benefits Program, your Employer 21 provides you with 'Flex Dollars' that you can use to pay for the cost of your optional benefits. 22 In most cases, if you use these Flex Dollars to pay for before-tax benefits, these Flex Dollars 23 will be tax free to you. ... Ifyou waive coverage or you have Flex Dollars left over after you 24 pay the cost of all of the optional benefits you elect, you will receive a portion ofyour Flex 25 Dollars as cash in ybur paycheck and you will be taxed on this amount."].) 26 Further, if Defendant is stating as a "fact" that 27 "MedFIx Wave" or "DenFlx Wave" cash in lieu of benefits payments are maintained in the same 28 12 PLAINTIFF'S RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS IN OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RENEWED MSA account with contributions for optional benefits under the Plan, this "fact" is DISPUTED because 2 Colia testified that "MedFIx Wave" and "DenFlx Wave" payments were maintained in accounts 3 entirely separate from the accounts associated with contributions for optional benefits. 4 (See Exhibit 5. Colia Depo., at 38:5-16, 72:3-8, 5 156:5-21 (confirming that money maintained in the sub-accounts holding "MedFIx Wave" and 6 "DenFlx Wave" payments were "earmarked" to 7 be provided to employees "for waiving, opting out of, medical and/or dental [benefits]). 8 Further DISPUTED on the basis that the 9 statement lacks foundation because the declarant lacks knowledge regarding the structure, 10 mechanics, and processes associated with 11 monetary accounts for both HNI and HNCA. 12 (See Exhibit 5. Colia Depo at 98:2-9 ["Yeah, I don't know the structure ofthe accounting 13 centers for the various components of the Advantages plan."], 97:13-24 [declarant 14 confirming her lack of familiarity with the account structure related waive payments to be 15 distributed to the Class Members], 34:21-35:1 ["I don't know the sequencing ofthe accounting 16 process...."], 35:2-15 [The declarant does not know whether accounting was on an individual 17 basis or benefits plan basis. The declarant "believe[s]" but does not know how the accounts 18 were organized]). 19 Indeed, the scope of