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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
Facsimile: +1 916 329 4900
STEPHANIE GAIL LEE (STATE BAR NO. 285379) FlLEumDORSED
> . stephanie.lee@onick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP FEB 2 B 2018
6 777 South Figueroa Street, Suite 3200
Los Angeles, CA 90017-5855 A. Macias
7 Telephone: +1-213-629-2020 By:
Deputy Clerk
Facsimile: +1-213-612-2499
8
Attomeys for Defendant
9 HEALTH NET OF CALIFORNIA, INC.
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 COUNTY OF SACRAMENTO
12 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons similarly CU-OE-GDS
13 situated,
Plaintiff, DECLARATION OF STEPHANIE GAIL
14 L E E IN SUPPORT OF DEFENDANT
HEALTH NET OF CALIFORNIA,
15 INC.'S MOTION FOR MONETARY
HEALTH NET OF CALIFORNIA, INC., a SANCTIONS
16 Califomia Corporation; and Does 1 through 50,
inclusive. Date; March 27, 2018
17 Time: 9:00 a.m.
Defendants. Dept.: 54
18
Complaint Filed: April 5, 2017
19 FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
20
TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017
21 others similarly situated.
22 Plaintiff,
23
V.
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HEALTH NET OF CALIFORNIA, INC., a
25 Califomia corporation; and DOES 1-50,
inclusive.
26
Defendant.
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DECLAR.AT10N OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
1 I, Stephanie Gail Lee, hereby declare as follows:
2 1. I am an attomey duly admitted to practice before the courts of the State of
3 Califomia and am an associate in the law firm of Orrick, Henington & Sutcliffe LLP, attomeys of
4 record for Defendant Health Net of California, Inc. ("Health Net"). I make this declaration on
5 personal knowledge and, if swom as a witness, could competently testify to the followdng facts
6 except where otherwise indicated.
7 2. On April 5, 2017, Plaintiff Andrea Spears filed her putative wage-and-hour class
8 action Complaint against Health Net, purporting to represent all cunent and former non-exempt
9 Health Net employees in Califomia from April 5, 2013 to the present. On or about June 29, 2017,
10 Plaintiff Spears filed her First Amended Complaint adding Private Attorneys General Act
11 allegations.
12 3. On August 1, 2017, Plaintiff Tomas Arana filed his putative wage-and-hour class
13 action Complaint against Health Net, purporting to represent cunent and former non-exempt
14 employees of Health Net, among others, and a subclass of exempt employees.
15 4. On October 11, 2017, upon stipulation of the parties, the Court consolidated the
16 Spears and Arana matters under one case number. On December 27, 2017, Plaintiffsfileda
17 Consolidated Complaint. Attached hereto as Exhibit A is a trae and correct copy of Plaintiffs'
18 Consolidated Complaint,
19 5. Both Plaintiffs have propounded written discovery on Health Net. Plaintiff Spears
20 served her first sets of document requests, special intenogatories, employment law form
21 intenogatories, and admission requests on July 25, 2017.
22 6. Plaintiff Arana served his first and second sets of special intenogatories and first
23 sets of document requests, employment law form intenogatories, and admission requests on
24 September 19, 2017.
25 7. On September 12, 2017, Health Net timely served responses its responses to
26 Plaintiff Spears' first sets of special interrogatories and document requests and produced
27 responsive documents two days later.
28 -1-
DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
1 8. On October 17, 2017,1 sent an e-mail to Victoria Rivapalacio, counsel for Plaintiff
2 Spears, and Shaun Setareh, counsel for Plaintiff Arana, requesting that all parties' counsel
3 collectively discuss written discovery and specifically, Plaintiff Spears' proposed Belaire-West
4 notice ('Tsfotice") in light of the Court's order consolidating the two cases.
5 9. During our ensuing October 24-25, 2017 meet and confer over the telephone and
6 e-mail, 1 explained Health Net's bases for objections to certain requests and proposed sequencing
7 discovery to avoid needless discovery in light of the burden it would take to provide infonnation
8 as to thousands of putative class members if the class is never certified. Ms. Rivapalacio, Mr.
9 Setareh and I agreed to raise the issue of phasing discovery at the December 8, 2017 initial case
10 management conference ("CMC"), and Health Net agreed that it would provide class
11 certification-related discovery in the interim and defer responses to merit-based discovery.
12 Health Net granted Plaintiff Spears an extension to file any motion to compel on any outstanding
13 discovety until after the CMC so that Plaintiff Spears would not be prejudiced. With regards to
14 Plaintiff Spears' proposed Belaire-West Notice, I explained that, because both Plaintiffs sought
15 the contact information of putative class members, it made sense to coordinate on the language.
16 Attached hereto as Exhibit B is a tme and conect copy of my October 24-25, 2017 e-mail
17 conespondence with Ms. Rivapalacio and Mr. Setareh.
18 Belaire- West Notice
19 10. On October 25, 2017,1 received an e-mail from Ms. Rivapalacio containing
20 Plaintiff Spears' revisions to the Notice. Ms. Rivapalacio stated that this revised Notice
21 "reflect[ed] both cases." At this point, I had already proposed providing the contact information
22 of putative class members and allegedly aggrieved employees subject to a Belaire-West notice
23 and protective order. I was meeting and conferring with Ms. Rivapalcio and Mr. Setareh
24 regarding the contents of the Notice. Attached hereto as Exhibit C is a trae and conect copy of
25 the October 25,2017 e-mail I received from Ms. Rivapalacio.
26 11. Plaintiff Spears' revised proposed Notice, however, contained a number of
27 deficiencies, including that h did not include all putative class members. On October 30, 2017, in
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
1 an effort lo address the issue, I initiatedftirthermeet and confer discussions witii both Ms.
2 Rivapalacio and Mr. Setareh. I was able to reach Mr. Setareh over the telephone first and Ms.
3 Rivapalacio later in the day. During both of those calls, I pointed out why the revised proposed
4 Notice did not cover all individuals in the consolidated cases and suggested that Plaintiffs
5 consolidate their claims into one amended complaint. I explained that a consolidated complaint
6 would help clarify who should receive the Notice, among other things. During my call with Mr.
7 Setareh, he agreed that a consolidated complaint made sense and stated that Plaintiff Arana is
8 amenable to filing one with Plaintiff Spears. During my call v*dth Ms. Rivapalacio, she stated that
9 she would take the idea of a consolidated complaint under consideration. Attached hereto as
10 Exhibit D is a true and conect copy of my and Ms. Rivapalacio's October 30, 2017 e-mail
11 exchange confirming the substance of our telephone conference.
12 12. On November 8, 2017,1 received an e-mail from Ms. Rivapalacio rejecting the
13 idea of filing a consolidated complaint with Plaintiff Arana. Attached hereto as Exhibit E is a
14 tme and conect copy of the November 8, 2017 e-mail I received from Ms. Rivapalacio.
15 13. On November 9, 2017,1 provided Ms. Rivapalacio and Mr. Setareh with Health
16 Net's suggested revisions to the Notice via e-mail. In my e-mail, 1 invited Ms. Rivapalacio and
17 Mr. Setareh to continue to meet and confer over the contents of the Notice. Attached hereto as
18 Exhibit F is a tme and conect copy of my November 9, 2017 e-mail to Ms. Rivapalacio and Mr.
19 Setareh.
20 14. On November 16, 2017, in response to my ongoing meet-and-confer efforts to
21 resolve the issue conceming the contents oftiieNotice, including to whom it should be issued,
22 Ms. Rivapalacio stated in e-mail, "If it turns out the class is broader than the category as we have
23 identified it, we will revisit the mailing at that time. The motion is attached." Attached hereto as
24 Exhibit G is a tme and conect copy of my November 9-16, 2017 e-mail exchange with Ms.
25 Rivapalacio, without the attachment.
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA. INC.'S MOTION FOR MONETARY SANCTIONS
1 Plaintiff Spears' Belaire- West Motion
2 15. The Courtraledon Plaintiff Spears' Belaire-West Motion on December 18, 2017
3 continuing the hearing to Januaty 4,2018, ordering the parties to fiuther meet and confer, and
4 "remind[ing] all counsel but especially [Plaintiff Spears'] that given the number of motions such
5 as this which must be addressed on a daily basis, there are simply not enough judicial resources
6 available to resolve each and every discovery dispute that could have and should have been
7 resolved informally." The Court continued that, "[pjarticularly in light of a number of
8 concessions found in plaintiffs reply, the parties shall promptly meet-and-confer." Attached
9 hereto as Exhibit H is a trae and correct copy of the Court's December 18, 2017 Order on
10 16. Despite the Court's admonitions, Ms. Rivapalacio was clear that she did not take
11 to hear the Court's warnings, stating that "[she] dispu[ted] the Court's comments regarding
12 exhausting the meet and confer efforts." Attached hereto as Exhibit 1 is a true and correct copy of
13 the December 18, 2018 e-mail conespondence I received from Ms. Rivapalacio.
14 17. Per the Court's Order, Ms. Rivapalacio and I met and confened regarding the
15 contents of the Belaire-West notice. Ms. Rivapalacio accepted Health Net's proposed revisions to
16 the Notice so that it included all putative class members, including those as alleged in Plaintiff
17 Arana's complaint. However, at thistimeMs. Rivapalacio insisted that the proposed Notice be
18 sent to unidentified cunent and former employees of "staffing agencies" and "any other third
19 parties" - categories of entities that are not parties to this lawsuit. I pointed out to Ms. Rivapalcio
20 that it is inappropriate to send Notices to these non-parties. Attached hereto as Exhibit J is a trae
21 and conect copy of the December 20-21, 2018 e-mail exchange with Ms. Rivapalacio confirming
22 the substance of our telephone conference.
23 18. At the hearing on the Belaire-West Motion on January 4, 2018, the Court agreed
24 with Health Net and summarily rejected Plaintiff Spears' argument that the Notice should be sent
25 to non-parties' employees, emphasizing that "[t]he Court notes that plaintiffs have yet to sue as a
26 defendant any staffing agency or other third party which is alleged to have provided labor to
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA. INC.'S MOTION FOR MONETARY SANCTIONS
1 Health Net." Attached hereto as Exhibit K is a tme and conect copy of the Court's Januaty 4,
2 2018 Order on Plaintiff Spears' Belaire-West Motion.
3 Plaintiff Spears' First Set of Motions to Compel
4 19. On November 15, 2017, Ms. Rivapalacio e-mailed me demanding that Health Net
5 immediately supplement its responses to Plaintiff Spears' discovery requests and produce
6 additional documents. In response, I reminded Ms. Rivapalacio that, per the parties' meet-and-
7 confer discussions on October 24th and October 25th, the parties had already agreed to a process
8 for resolving the concems identified in the underlying discovery. Specifically, the parties had
9 agreed they would submit the issue of sequencing discovery at the upcoming CMC with Judge
10 Perkins. I also reassured Plaintiff Spears that, consistent with my prior representation. Health Net
11 would be supplementing its responses relating to class-certification discovety and intended to do
12 so before the CMC. I also reminded Plaintiff Spears that it had granted her an extension within
13 which to file a motion to compel in case Judge Perkins did not resolve the discovery issues at the
14 CMC. Attached hereto as Exhibit L is a true and conect copy of the November 15-16, 2017 e-
15 mail exchange with Ms. Rivapalacio.
16 20. On November 24, 2017,1 e-mailed a stipulation and proposed protective order to
17 Ms. Rivapalacio and Mr. Setareh in anticipation that it would govem the parties' exchange of
18 confidential documents and information. Attached hereto as Exhibit M is attueand conect copy
19 of my November 24, 2017 e-mail to Ms. Rivapalacio and Mr. Setareh without the attachment.
20 . 21. On December 1, 2017, Plaintiff Spears filed her first motion to compel further
21 responses to her requests for production, set one, and on December 6, filed another motion to
22 compelfortherresponses to her special intenogatories, set one (collectively, "First Set of Motions
23 to Compel"). Attached hereto as Exhibit N is a trae and conect copy of Plaintiff Spears's first
24 motion to compelfortherresponses to her requests for production, set one. Attached hereto as
25 Exhibit O is a trae and conect copy of Plaintiff Spears's first motion to compelfortiierresponses
26 to her special intenogatories, set one.
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA. FNC'S MOTION FOR MONETARY SANCTIONS
1 22. On December 6 and 7, 2017, Health Net served its supplemental discovery
2 responses and documents to Plaintiff Spears, and agreed to produce additional documents once an
3 appropriate protective order was in place. With respect to putative class members' contact
4 information. Health Net restated that it would provide such information once an appropriate
5 Belaire-West process was in place.
6 23. 1 attended the December 8, 2017 CMC before Judge Perkins. Ms. Rivapalacio was
7 present at the CMC via CourtCall. During this CMC, Judge Perkins set Febraary 15, 2018 as the
8 hearing date for Health Net's motion to sequence discovery. Attached hereto as Exhibit P is a
9 trae and conect copy of the Court's minute order regarding the December 8, 2017 CMC.
10 24. On the afternoon of December 8, 2017,1 e-mailed Ms. Rivapalacio and Mr.
11 Setareh requesting that Plaintiff Spears continue the hearing dates on her pending motions until
12 after Judge Perkinsraledon the sequencing motion. Many of the issues raised by Plaintiff
13 Spears's First Set of Motions to Compel would overlap with Health Net's then-forthcoming
14 motion to sequence. Attached hereto as Exliibit Q is a trae and conect copy of my December 8,
15 2017 e-mail conespondence to Ms. Rivapalacio and Mr. Setareh.
16 25. On December 13,2017, Ms. Rivapalcio informed me that she refoses to continue
17 the hearing date on her pending motions, claiming that that the responses were deficient because
18 certain documents were not produced on the basis that no protective order was in place. In
19 response, 1 pointed out that I had not yet received Plaintiffs' signature on the proposed stipulated
20 protective order but, once received, Health Net would serve responsive documents on all parties.
21 Attached hereto as Exhibit R is a trae and conect copy of the December 13-14, 2017 e-mail
22 exchange with Ms. Rivapalacio.
23 26. On December 15, 2017,1 received an e-mail from Ms. Rivapalacio attaching her
24 and Plaintiff Arana's counsel's signature on the proposed protective order. Attached hereto as
25 Exhibit S is a trae and conect copy of the December 15, 2017 e-mail 1 received from Ms.
26 Rivapalacio without the attachments.
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
1 27. On December 19,2017, my office served Health Net's supplemental document
2 production pursuant to the parties' stipulated protective order.
3 28. On December 15, 2017, after the Courtraledon Plaintiff Spears' Belaire- West
4 Motion, I reached out to Ms. Rivapalacio, renewing my request that Plaintiff Spears withdraw her
5 First Set of Motions to Compel because the issues raised in those motions overlapped with the
6 Motion to Sequence Discovery. In response, Ms. Rivapalacio withdrew her First Set of Motions
7 to Compel. Further, Health Net continued both Plaintiffs' respective deadlines to bring motions
8 to compel further responses to their written discovery until March 1,2018- two weeks after
9 Health Net anticipated receiving a ruling on its Motion to Sequence Discovery. Attached hereto
10 as Exhibit T is a trae and conect copy of my December 15, 2017 and December 18, 2017 e-mail
11 exchange with Ms. Rivapalacio.
12 29. Judge Perkins has since continued the hearing date for the Motion to Sequence
13 Discovery to March 9, 2018 per the stipulation of the parties. Accordingly, to continue to ensure
14 that Plaintiff Spears is not prejudiced. Health Net has granted Plaintiff Spears an additional
15 extension oftimeuntil March 23, 2018 to file a motion to compel as to any issue Judge Perkins
16 does not address.
17 Plaintiff Spears' Second Set of Motions to Compel
18 30. Despite the forthcoming Motion to Sequence and Health Net's extending her
19 deadline to file these discovery motions, without meeting and confening, on January 17, 2017,
20 Plaintiff Spears filed her second motions to compelftirtherresponses to her requests for
21 production, set one, and special intenogatories, set one (collectively, "Second Set of Motions to
22 Compel"), which were set to be heard on Febraary 13, 2018 ~ two days before Judge Perkins was
23 scheduled to hear Health Net's Motion to Sequence Discovery. Attached hereto as Exhibit U is a
24 trae and correct copy of Plaintiff Spears's second motion to compel further responses to her
25 requests for production, set one. Attached hereto as Exhibit V is a true and conect copy of
26 Plaintiff Spears's second motion to compel further responses to her special intenogatories, set
27 one.
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
1 31. On Januaty 23,2018, Health Net filed its Motion to Sequence Discovery,
2 Attached hereto as Exliibh W is a trae and conect copy of Health Net's Memorandum of Points
3 and Authorities in support of its Motion to Sequence Discovery.
4 32. After Plaintiff Spears's filing her Second Set of Motions to Compel, on January
5 23, 2018,1 requested that she withdraw them because Judges Perkins would be deciding the
6 issues raised by them when he rules on Health Net's Motion to Sequence Discovery. I likewise
7 told her that if she did not do so and Health Net was forced to oppose them. Health Net would
8 have no choice but to seek sanctions. I also reconfirmed that Health Net had given her a two-
9 week extension of time to file any motion to compel after Judge Perkinsraledon the Motion to
10 Sequence. Plaintiff Spears refused Health Net's request to withdraw her motions. Attached
11 hereto as Exhibit X is a trae and correct copy of the e-mails exchanged between myself and Ms.
12 Rivapalacio.
13 33. .At 2:54 p.m. on the date of its deadline, January 30, 2018, Health Net filed its
14 oppositions to Plaintiff Spears' Second Set of Motions to Compel and sought appropriate
15 sanctions against Plaintiff Spears' counsel. At 5:20 p.m. on the same day, Ms. Rivapalacio e-
16 mailed me, stating that Plaintiff Spears was withdrawing her Second Set of Motions to Compel.
17 Ms. Rivapalcio stated that she agreed that Judge Perkins intends to decide the discovety issues of
18 concem when heraleson the Motion to Sequence. Ms, Rivapalacio's e-mail attached
19 conespondence she had messengered to the Court earlier that day confirming that Plaintiff Spears
20 had already withdrawn her motions. Attached hereto as Exhibit Y is a trae conect copy of the e-
21 mail conespondence from Ms. Rivapalacio, with the attachment sent to the Court.
22 Plaintiffs'Counsel
23 34. On the website of Blumenthal Nordrehaug Bhowmik De Blouw LLP, counsel for
24 Plaintiff Spears, the firm reports that the attomeys have handled a large number of wage-and-hour
25 class actions. They claim they have recovered millions of dollars in these case. Attached hereto
26 as Exhibit Z is a true and conect copy of a print-out from the website of Blumenthal Nordrehaug
27 Bhowmik De Blouw LLP, which 1 accessed on Febraary 28, 2018.
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
1 35. Plaintiff Arana's coun.sel has not filed any discovery motions in this matter.
2 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing
3 is trae and correct. Executed this 28th day of Febraary, 2018.
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STEPHANIE GAIL LEE
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS
Exhibit A
BLUMENTHAL, NORDREHAUG & BHOWMIK LLP
Norman Blumenthal (SBN 068687)
norm@bamlawca.com
2255 Calle Clara
La Jolla, CA 92037
Tel: 858.551.1223
Fax: 858.551.1232
Attomeys for Plaintiff
ANDREA SPEARS
SETAREH LAW GROUP
Shaun Setareh (SBN 204514)
shaun@setarehlaw.com
H. Scott Uviant (SBN 200834)
scott@$etarehlaw.com
94S4 Wilshire Boulevard, Suite 907
Beverly Hills, Califomia 90212
10 Telephone (310)888-7771
Facsimile (310) 888-0109
11
Attomeys for Plaintiff,
12 TOMAS R. ARANA
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SACRAMENTO
15 UNLIMITED JURISDICTION
16 ANDREA SPEARS, an individual, on behalf Consol. No. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
17 similarly situated, Assigned For All Purposes to the Honorable
Alan G. Perkins, Department 35
18 Plaintijf,
Amended As a Matter of Right Pursuant to
19 Labor Code Section 2699,3(a)(2)(C)
20 HEALTH NET OF CALIFORNL\, INC., a CLASS ACTION W f
California corporation; and DOES 1 through
21 50, inclusive. CONSOLIDATED COMPLAINT FOR:
22 Defendants. 1. Failure to Provide Meal Periods (Lab. Code
§§ 204,223,226.7,512, and 1198);
.23 2. Failure to Provide Rest Periods (Lab. Code
TOMAS R. ARANA, on behalf of himself, all §§204,223,226.7, and 1198);
24 others similarly situated. 3. Failure to Pay Hourly Wages (Lab. Code
§§ 223,510,1194,1194.2,1197,1997.1,
25 Plaintiff, and 1198);
4. Failure to Provide Accurate Written Wage
26
vs. Statements (Lab. Code § 226(a));
5. Failure to Timely Pay All Final Wages
27 HEALTH NET OF CALIFORNIA, INC, a (Lab. Code §§ 201-203);
Califomia corporation; and DOES 1 through 6. Unfair Competition (Bus. & Prof. Code §§
28 50, inclusive, 17200, e/se?.);
7. Civ. Penalties (Lab, Code §§ 2698, etseq.)
Defertdnntx. JURY TRIALDEMANDED
Spears v. Health Net afCalifomia, Inc. Consolidated Class Action Complaint
1 Plaintiffs, Andrea Spears and Tomas R. Arana (referred to as "Plaintiffs"), on behalf of
2 themselves, all others similarly situated, and the general public, complain and allege as follows:
3 INTRODUCTION
4 1. Plaintiffs brings this class andrepresentativeaction against defendant Health Net
5 of California, Inc., a California corporation (referred to as "Health Net'O and Does 1tiuoughSO,
6 inclusive (collectivelyreferredto as "Defendants") for alleged violations of the Labor Code and
7 Business and Professions Code. As set forth below, Plaintiffs allege that Defendants failed to
8 provide them and all other similarly situated individuals with meal periods, failed to provide
9 them withrestperiods, failed to pay premium wages for missed meal and/or rest periods, failed
10 to pay them for all hours woriced, failed to pay overtime wages at the correctrate,failed to pay
11 doubletimewages at the correctrate,failed to provide them with accurate written wage
12 statements, and failed totimelypay them all of theirfinalwages following separation of
13 employment. Plaintiff Arana also alleges that Defendants misclassified him and all similarly
14 situated individuals as exempt employees when they were, in fact, non-exempt employees who
15 were entitied to meal andrestperiods and overtime compensation. Based on these alleged
16 violations. Plaintiffs now bring this class andrepresentativeaction to recover unpaid wages,
17 restitution, andrelatedreliefon behalf of themselves, all others similarly, situated, and the
18 genera] public.
19 JURISDICTION AND VENUE
20 2. This Court has subject matter jurisdiction to hear this case because Plaintiffs are
21 uiformed andtelieve,and basedtiiereonallege,tiiatthe monetaty damages and restitution sought
22 herein for Defendants' conduct exceeds the minimal jurisdictional limits of die Superior Court.
23 3. Venue is proper in Sacramento County pursuant to Code of Civil Procedure
24 sections 395(a) and 395.5 in that liability arose in Sacramento County because at least some of the
25 transactions that are the subject matter of this Complaint occurred therein and/or each defendant is
26 found, maintains offices, transacts business, and/or has an agent therein.
27 ///
28
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Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 PARTIES
2 5. Defendant Health Net of Califomia, Inc. is a Califomia corporation authorized to
3 do business in Califomia.
4 6. Plaintiffs are ignorant of the trae names, capacities,relationships,and extent of
5 participation in the conduct alleged herein, of the defendants sued as Does Itiirough50,
6 inclusive, but are informed and believe that said defendants are legallyresponsiblefor the
7 conduct alleged herein and therefore sues these defendants by suchfictitiousnames. Plaintiffs
8 will amend this complaint to allege both the trae names and capacities of the Doe defendants
9 when ascertained.
10 7. Plaintiffs are informed and believe that each defendant acted In all respects
11 pertinent to this action as the agent of the other defendants, carried out a joint scheme, business
12 plan or policy in all respects pertinent hereto, and that the acts of each defendant are legally
13 attributable to each of the other defendants.
14 CLASS ALLEGATIONS
15 8. This action has been brought and may be maintained as a class action pursuant to
16 Code of Civil Procedure section 382 because there is a well-defined community of interest
17 among the persons who comprise diereadilyascertainable classes defmed below and because
18 Plaintiffs are unaware of any difficulties likely to be encountered in managing this case as a
19 class action.
20 9. Action: The Action is defmed as the suitfiledon April 5,2017 witii the
21 Sacramento County Superior Court Case No. 34-2017-00210560, on behalf of Plaintiffs, all
22 others similarly situated against Health Net Inc.
23 10. Relevant Time Period: Therelevanttime period is defined as the time period
24 beginning four years prior to thefilingof the Action until judgment is entered.
25 11. Hie class and sub-class members are defined as follows:
26
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Shourly
on-E»emDt Class : AU persons employed by Healtii Net of California Inc. and
ealth Net, Inc. and/or any staffmg agencies and/or any otiier third parties in
or non-exempt positions in Califomia during the Relevant Time Period.
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Non-Eiempt M^i Period Sub-Class: All Non-Exempt Class members
who worked a shift in excess offivehours during the Relevant Tune
Spears v. Health Net of California, Irw. Consolidated Class Action Complaint
1 Period.
2 Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members
who worked a shift of at least three and one-half (3.5) hours during the
3 Relevant Time Period.
4 Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt
Class members employed bv Defendants in Califomia during the period
5 beginning one year before mefilingof the Action and ending when foial
judfgment is entered.
6
Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt
7 Class members who separated from their employment with Defendants
during the period beginning three years before thefilingof die Action and
8 ending whenfinaljudgment is entered.
9 Exempt Class: All persons enmloyed by Healtii Net of Califomia, Inc. and
Health Net Inc. and/or any staffing agencies and/or any other third parties in
10 Califomia as a Business Analyst Systems Analyst Contact Center Analyst or
Analyst during the Relevant Time Period.
11
Exempt Meal Period Snb-Claas: All Exempt Class members who
12 worked a shift in excess offivehours during the Relevant Time Period:
13 Exempt Rest Period Sub-Class: All Exempt Class members who
worked a shin of at least three and one-half (3.S) hours during the
14 Relevant Time Period.
15 Exempt Wage Statem^t Penalties Sub-Class: All Exempt Class
members employed by Defendants in California during the period
16 beginning one year before thefilingof the Action and ending when final
judgment is entered.
17
Exempt Waiting Time Penalties Sub-Class; All Exempt Class members
18 who separatedfromtheu* onployment with Defendants during the period
teginnmg three years before thefilingof the Action and ending when fmal
19. judgment is entered.
20 Rounding Class: All persons employed by Health Net of Califomia, bic. and
Health Net Inc. and/or any staffing agencies and/or any other third parties in
21 Cailfomia whose hours worked were affected by Defendants'roundingpractices
during the Relevant Time Period.
22
UCL ClaaB: Ail Non-Exempt Class, Exempt Class and Rounding Class members
23
employed by Defendants in Califomia during the Relevant Time Period.
24
12. Reservation of Rights: Pursuant to Rule of Court 3;76S(b), Plaintiffs reserve the
25
right to amend or modify the class definitions with greater specificity, by fiulher division into
26
sub-classes, and/or by limitation to particular issues.
27
13. Numerositv: The class members are so numerous that the individual joinder of
28
each individual class member is impractical. While Plaintiffs do not cunently know the exact
Spears v. Health Net ofCalifomia, Inc. Consolidated Class Action Complaint
1 number of class members, Plaintiffs are informed and believe that the actual number exceeds
2 the minimumrequiredfor numerosity under Califomia law.
3 14. Commonality and Predominance: Common questions of law and fact exist as to
4 all class members and predominate over any questions which affect only individual class
5 members. These common questions include, but are not limited to:
6 A. Whether Defendants maintained a policy or practice of failing to provide
7 employees witii their meal periods;
8 B. Whether Defendants maintained a policy or practice of failing to provide
9 employees with their rest periods;
10 C. Whether Defendants failed to pay premium wages to class members
11 when they have not been provided withrequiredmeal and/orrestperiods;
12 D. Whether Defendants failed to pay minimum and/or overtime wages to
13 class members as a result of policies that fail to provide meal periods in
14 accordance with Califomia law;
15 E. Whether Defendants used payroll formulas that systematically fail to
16 account for non-discretionary bonuses and/or other applicable
17 remuneration when calculatingregularratesof pay for class members;
18 F. Whether Defendants failed to pay overtune wages to class members as a
19 result of incorrectly calculatingtiieirregularratesof pay;
20 G. Whether Defendants have failed to pay premium wages to class members
21 based on theirrespective"regularratesof compensation" by not
22 including commissions and/or income in calculating theratesat which
23 those wages are paid;
24 H. Whether Defendants failed to provide class members with accurate
25 written wage statements as aresultof providing them with written wags
26 statements with inaccurate entries for, among other things, amounts of
27 gross and net wages, and total hours worked;
28
I. Whether Defendants applied policies or practices that result in late and/or
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 mcompletefinalwage payments;
2 J. Whether Defendants are liable to class members for waiting time
3 penalties under Labor Code section 203;
4 K. Whether class members are entitied torestitutionof money or property
5 that Defendants may have acquiredfix>mthem through unfair
6 competition,
7 15. Typicality: Plaintiffs' clauns aretypicalof the other class members* claims.
8 Plaintiffs are informed and believe and thereon allege that Defendants have a policy or practice
9 of failing to comply with the Labor Code and the Business and Professions Code as alleged
10 herein.
11 16. Adequacy of Class Representative: Plaintiffs are adequate class
12 representatives in that they have no interests that are adverse to, or otiierwise conflict with, the
13 interests of absent class members and is dedicated to vigorously prosecuting this action on their
14 behalf Plaintiffs will fairly and adequatelyrepresentand protect the mterests of the other class
15 members.
16 17. Adequacy of Class Counsel: Plaintiffs'counsel are adequate class counsel in
17 that they have no known conflicts of interest with Plaintif]^ or absent class members, are
18 experienced in wage and hour class action litigation, and are dedicated to vigorously
19 prosecutmg this action on behalf of Plaintiffs and absent class members.
20 18. Superiority; A class action is vastly superior to other available means for fafr
21 and efficient adjudication of the class members' claims and would be beneficial to the parties
22 and the Cotut. Class action treatment will allow a number of similarly situated persons to
23 simultaneously and eSicientiy prosecute Iheir common claims in a single forum witiiout the
24 unnecessaty duplication of effort and expense that numerous individual actions would entail. In
25 addition, the monetaty amounts due to many mdividual class members are likely to be relatively
26 small and would thus make it difficult, if not impossible, for mdividual class members to both
27 seek and obtain relief Moreover, a class action will serve an unportant public interest by
28 permitting class members to effectively pursue the recovety of moneys owed to them. Further,
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 a class action will prevent the potential for inconsistent or contradictoty judgments inherent in
2 individual litigation.
3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
4 19. Plaintiff Arana was hired by Defendants on dr about Febraaiy 25,2008 as a
5 hourly, non-exen^ employee who worked at a call center in California.
6 20. On or about November 16,201S, Plamtiff Arana was promoted to a salary,
7 exempt position.
8 21. Plaintiff Spears was hired by Defendaiits in December of 2013 and worked for
9 Defendants up to October of 2016 as an hourly, non-exempt employee m Califomia.
10 Clock In Process
11 22. Plaintiffs and putative class were trained to clock in for each work shift using the
12 desktop computer assigned to them. Plaintiffs and the putative class were required tofirsttum
13 on their computer and wait for it to load. It generally took approximatelyfiveto ten minutes for
14 it to boot up to die Windows log in prompt.
15 23. After Plaintiffs and the putative class entered their usemame and password, their
16 computer would proceed to load to the desktop while other programs were started in the
17 background automatically as part of the normal boot up process. It generally took another five
18 to ten minutes for it to complete the entire boot up cycle.
19 24. Occasionally, Plaintiffs and the putative class would encoimter login errors or
20 computer crashes that wouldrequirethem to restart the entire boot up process. The entire time
21 spent booting up die computer would not be accurately recorded and thereforeresultedin
22 Plaintiffs and the putative class not bemg paid for all hours worked while waiting for the
23 computer the boot up.
24 25. After the computer successfiiUy booted up. Plaintiffs and the putative class
25 would be required to log in to other programs such as CareMark, CSI and Marks.
26
26. After logging into the above-referenced [M-ograms, Plaintiffs and the putative
27
class would finally log in to a program called "Convergence" which is the program that is used
28
by all the call center employees for making and receiving customer service calls. It is only upon
Spears v. Health Net ofCalifornia, Inc Consolidated Class Action Complaint
1 logging into Convergence vnll an employee berecognizedas being "clocked in" by Defendants,
2 which is the time recognized as the actual start tune for each workday and w^en Plaintiffs and
3 the putative class would begin to be paid by Defendants.
4 27. Accordingly, by thetimePlaintiffs and the putative class logged into
5 Convergence,fifteento thirty minutes or more may have already passed - all of which were not
6 properly recorded astimeworked and whichresultedin Plaintiffs and the putative class not
7 being paid for all hours worked by Defendants.
8 Clock Out Process
9 28. Similarly, upon clocking out for each work shift. Plaintiffs and the putative class
10 wererequiredto shutdown their computers by following a sequence of steps. First they were
11 required to log out of Convergence. Upon logging out of Convergence^ each employee was
12 deemed to be "clocked out" which is the timerecognizedas the actual endtimefor each
13 workday and when Plaintiffs and the putative class would stop being paid by Defendants.
14 29. Afler logging out of Convergence, Plaintiffs and the putative class would then
15 log out of the otiier programs they had open during their work shift. After all the programs
16 were shutdown, they would then shut down the computer.
17 30. Accordmgly, after Plaintiffs andtiieputative class logged out of Convergence,
18 they were required to spend approximatelyfiveto ten minutes to shut down other programs and
19 the computer - all of which were not properly recorded astimeworiced and which resulted in
20 Plaintiffs and the putative class not being paid for all hours woriced by Defendants.
21 Misclassification as Exempt Employee
22 31. Plaintiff Arana and die putative Exempt Class were also misclassified as exempt
23 employees when in fact they were non-exempt Plaintiff Arana and the putative Exempt Class
24 regularly worked more than eight hours each workday, and more than forty hours each
25 workweek. Plaintiff Arana and the putative Exempt Class were paid afixedsalatyregardlessof
26
the hourstiieyworked and were not paid any overtime compensation.
27
32. Plaintiff Arana andtiieputative Exempt Class did not perform duties, more tiian
28
fifty percent (50%) of thetime,that would qualifytiiemas exempt employees under the
^}ears v. Health Net ofCalifornia. Inc. Consolidated Class Action Complaint
1 Professional, Executive or Administrative exemptions. Accordingly, Plaintiff Arana and the
2 putative Exempt Class were entitied to all the protections afforded to them as non-exempt
3 employees under Califomia law.
4 33. As a result of being misclassified as an exempt employee, thetimespent by
5 Plaintiff Arana and the putative Exempt Class were not accuratelyrecordedby the timekeeping
6 system utilized by Defendants and thereforeresultedin the failure to pay Plaintiff Arana and the
7 putative Exempt Class for all hours actually worked and overtune compensation.
8 Improper Rounding Fracticw
9 34. Moreover, begiimmg Januaty 1,2017, Defendants began to utilize a rounding
10 practice that required Plaintiffs and the putative class toroundtheir start times to the next hour.
11 For example, if an employee was scheduled to work at 9:00 a.m., that employee had a six
12' minute grace period to clock in for their shift by that time. If this employee attempts to clock in
13 after the expiration of the grace period, die employee's start time would beroimdedto the next
14 hour which would be 10:00 a.m. even though the employee commenced work at 9:10 a.m.
15 35. Plaintiffs are informed and believe, and thereupon allege, that Defendants have
16 not, did not and do not keep records of actual hours worked by Plaintiffs and the putative class.
17 In the absence ofrecordsshowing actual hours worked, Plaintiffs and the putative class are
18 unable to ascertain whether (1) Defendants'roundingpractices comply with Califomia law; (2)
19 whether Defendants'roundmgpractices resulted over a period of time, in failure to compensate
20 Plaintiffs and the putative class properly for all the time they actually worked; and (3) whether
21 Plaintiffs and the putative class were properly paid for all hours worked.
22 Missed Meal Periods
23 36. Plaintiffs and the putative class members were not provided with meal periods of
24 at least thirty (30) minutes for eachfive(5) hour work period due to (1) Defendants' policy of
25 not schedulmg each meal period as part of each work shift; (2) chronically understafflng each
26 work shift witfi not enough workers; (3) imposing so much work on each employee such that it
27 made it imlikely that an employee would be able to take their breaks if they wanted to finish
28 their woric on time; and (4) no formal written meal andrestperiod policy that encouraged
l^ars V. Hecdth Net of California, Inc. Consolidated Class Action Complaint
1 employees to take their meal andrestperiods.
2 37. As aresultof Defendants' policy, Plaintiffs and the putative class were regularly
3 not provided with uninterrapted meal periods of at least thirty (30) minutes for eachfive(5)
4 hours worked due to complying with Defendants' productivityrequnementsthat requked
5 Plaintiffis and the putative class to work through their meal periods in order to complete their
6 assignments on time.
7
Missed Rest Periods
8
38. Plaintiffs and the putative class members were not provided with rest periods of
9
at least ten (10) minutes for each four (4) hour work period, or majorfractionthereof, due to (1)
10 Defendants' policy of not scheduling each est period as part of each work shift; (2) chronically
1-1 understaffing each work shift with not enough woricers; (3) imposing so much work on each
12 employee such that it made it imlikely that an employee would be able to take their breaks if
13 they wanted tofinishtheir work on time; and (4) no formal written meal andrestperiod policy
14 that encouraged employees to take their meal andrestperiods.
15 39. As a result of Defendants' policy, Plauitiffs and the putative class were regularly
16 not provided with uninterrapted rest periods of at least ten (10) mmutes for each four (4) hours
17 worked due to complying vyitii Defendants' productivityrequirementsthat required Plaintiffs
18 and the putative class to work through theirrestperiods in orde
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 Facsimile: +1 916 329 4900 STEPHANIE GAIL LEE (STATE BAR NO. 285379) FlLEumDORSED > . stephanie.lee@onick.com ORRICK, HERRINGTON & SUTCLIFFE LLP FEB 2 B 2018 6 777 South Figueroa Street, Suite 3200 Los Angeles, CA 90017-5855 A. Macias 7 Telephone: +1-213-629-2020 By: Deputy Clerk Facsimile: +1-213-612-2499 8 Attomeys for Defendant 9 HEALTH NET OF CALIFORNIA, INC. 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 COUNTY OF SACRAMENTO 12 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons similarly CU-OE-GDS 13 situated, Plaintiff, DECLARATION OF STEPHANIE GAIL 14 L E E IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, 15 INC.'S MOTION FOR MONETARY HEALTH NET OF CALIFORNIA, INC., a SANCTIONS 16 Califomia Corporation; and Does 1 through 50, inclusive. Date; March 27, 2018 17 Time: 9:00 a.m. Defendants. Dept.: 54 18 Complaint Filed: April 5, 2017 19 FAC Filed: June 29, 2017 Consolidated Complaint Filed: Dec. 21, 2017 20 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017 21 others similarly situated. 22 Plaintiff, 23 V. 24 HEALTH NET OF CALIFORNIA, INC., a 25 Califomia corporation; and DOES 1-50, inclusive. 26 Defendant. 27 28 DECLAR.AT10N OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS 1 I, Stephanie Gail Lee, hereby declare as follows: 2 1. I am an attomey duly admitted to practice before the courts of the State of 3 Califomia and am an associate in the law firm of Orrick, Henington & Sutcliffe LLP, attomeys of 4 record for Defendant Health Net of California, Inc. ("Health Net"). I make this declaration on 5 personal knowledge and, if swom as a witness, could competently testify to the followdng facts 6 except where otherwise indicated. 7 2. On April 5, 2017, Plaintiff Andrea Spears filed her putative wage-and-hour class 8 action Complaint against Health Net, purporting to represent all cunent and former non-exempt 9 Health Net employees in Califomia from April 5, 2013 to the present. On or about June 29, 2017, 10 Plaintiff Spears filed her First Amended Complaint adding Private Attorneys General Act 11 allegations. 12 3. On August 1, 2017, Plaintiff Tomas Arana filed his putative wage-and-hour class 13 action Complaint against Health Net, purporting to represent cunent and former non-exempt 14 employees of Health Net, among others, and a subclass of exempt employees. 15 4. On October 11, 2017, upon stipulation of the parties, the Court consolidated the 16 Spears and Arana matters under one case number. On December 27, 2017, Plaintiffsfileda 17 Consolidated Complaint. Attached hereto as Exhibit A is a trae and correct copy of Plaintiffs' 18 Consolidated Complaint, 19 5. Both Plaintiffs have propounded written discovery on Health Net. Plaintiff Spears 20 served her first sets of document requests, special intenogatories, employment law form 21 intenogatories, and admission requests on July 25, 2017. 22 6. Plaintiff Arana served his first and second sets of special intenogatories and first 23 sets of document requests, employment law form intenogatories, and admission requests on 24 September 19, 2017. 25 7. On September 12, 2017, Health Net timely served responses its responses to 26 Plaintiff Spears' first sets of special interrogatories and document requests and produced 27 responsive documents two days later. 28 -1- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS 1 8. On October 17, 2017,1 sent an e-mail to Victoria Rivapalacio, counsel for Plaintiff 2 Spears, and Shaun Setareh, counsel for Plaintiff Arana, requesting that all parties' counsel 3 collectively discuss written discovery and specifically, Plaintiff Spears' proposed Belaire-West 4 notice ('Tsfotice") in light of the Court's order consolidating the two cases. 5 9. During our ensuing October 24-25, 2017 meet and confer over the telephone and 6 e-mail, 1 explained Health Net's bases for objections to certain requests and proposed sequencing 7 discovery to avoid needless discovery in light of the burden it would take to provide infonnation 8 as to thousands of putative class members if the class is never certified. Ms. Rivapalacio, Mr. 9 Setareh and I agreed to raise the issue of phasing discovery at the December 8, 2017 initial case 10 management conference ("CMC"), and Health Net agreed that it would provide class 11 certification-related discovery in the interim and defer responses to merit-based discovery. 12 Health Net granted Plaintiff Spears an extension to file any motion to compel on any outstanding 13 discovety until after the CMC so that Plaintiff Spears would not be prejudiced. With regards to 14 Plaintiff Spears' proposed Belaire-West Notice, I explained that, because both Plaintiffs sought 15 the contact information of putative class members, it made sense to coordinate on the language. 16 Attached hereto as Exhibit B is a tme and conect copy of my October 24-25, 2017 e-mail 17 conespondence with Ms. Rivapalacio and Mr. Setareh. 18 Belaire- West Notice 19 10. On October 25, 2017,1 received an e-mail from Ms. Rivapalacio containing 20 Plaintiff Spears' revisions to the Notice. Ms. Rivapalacio stated that this revised Notice 21 "reflect[ed] both cases." At this point, I had already proposed providing the contact information 22 of putative class members and allegedly aggrieved employees subject to a Belaire-West notice 23 and protective order. I was meeting and conferring with Ms. Rivapalcio and Mr. Setareh 24 regarding the contents of the Notice. Attached hereto as Exhibit C is a trae and conect copy of 25 the October 25,2017 e-mail I received from Ms. Rivapalacio. 26 11. Plaintiff Spears' revised proposed Notice, however, contained a number of 27 deficiencies, including that h did not include all putative class members. On October 30, 2017, in 28 2- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS 1 an effort lo address the issue, I initiatedftirthermeet and confer discussions witii both Ms. 2 Rivapalacio and Mr. Setareh. I was able to reach Mr. Setareh over the telephone first and Ms. 3 Rivapalacio later in the day. During both of those calls, I pointed out why the revised proposed 4 Notice did not cover all individuals in the consolidated cases and suggested that Plaintiffs 5 consolidate their claims into one amended complaint. I explained that a consolidated complaint 6 would help clarify who should receive the Notice, among other things. During my call with Mr. 7 Setareh, he agreed that a consolidated complaint made sense and stated that Plaintiff Arana is 8 amenable to filing one with Plaintiff Spears. During my call v*dth Ms. Rivapalacio, she stated that 9 she would take the idea of a consolidated complaint under consideration. Attached hereto as 10 Exhibit D is a true and conect copy of my and Ms. Rivapalacio's October 30, 2017 e-mail 11 exchange confirming the substance of our telephone conference. 12 12. On November 8, 2017,1 received an e-mail from Ms. Rivapalacio rejecting the 13 idea of filing a consolidated complaint with Plaintiff Arana. Attached hereto as Exhibit E is a 14 tme and conect copy of the November 8, 2017 e-mail I received from Ms. Rivapalacio. 15 13. On November 9, 2017,1 provided Ms. Rivapalacio and Mr. Setareh with Health 16 Net's suggested revisions to the Notice via e-mail. In my e-mail, 1 invited Ms. Rivapalacio and 17 Mr. Setareh to continue to meet and confer over the contents of the Notice. Attached hereto as 18 Exhibit F is a tme and conect copy of my November 9, 2017 e-mail to Ms. Rivapalacio and Mr. 19 Setareh. 20 14. On November 16, 2017, in response to my ongoing meet-and-confer efforts to 21 resolve the issue conceming the contents oftiieNotice, including to whom it should be issued, 22 Ms. Rivapalacio stated in e-mail, "If it turns out the class is broader than the category as we have 23 identified it, we will revisit the mailing at that time. The motion is attached." Attached hereto as 24 Exhibit G is a tme and conect copy of my November 9-16, 2017 e-mail exchange with Ms. 25 Rivapalacio, without the attachment. 26 27 28 -3 - DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA. INC.'S MOTION FOR MONETARY SANCTIONS 1 Plaintiff Spears' Belaire- West Motion 2 15. The Courtraledon Plaintiff Spears' Belaire-West Motion on December 18, 2017 3 continuing the hearing to Januaty 4,2018, ordering the parties to fiuther meet and confer, and 4 "remind[ing] all counsel but especially [Plaintiff Spears'] that given the number of motions such 5 as this which must be addressed on a daily basis, there are simply not enough judicial resources 6 available to resolve each and every discovery dispute that could have and should have been 7 resolved informally." The Court continued that, "[pjarticularly in light of a number of 8 concessions found in plaintiffs reply, the parties shall promptly meet-and-confer." Attached 9 hereto as Exhibit H is a trae and correct copy of the Court's December 18, 2017 Order on 10 16. Despite the Court's admonitions, Ms. Rivapalacio was clear that she did not take 11 to hear the Court's warnings, stating that "[she] dispu[ted] the Court's comments regarding 12 exhausting the meet and confer efforts." Attached hereto as Exhibit 1 is a true and correct copy of 13 the December 18, 2018 e-mail conespondence I received from Ms. Rivapalacio. 14 17. Per the Court's Order, Ms. Rivapalacio and I met and confened regarding the 15 contents of the Belaire-West notice. Ms. Rivapalacio accepted Health Net's proposed revisions to 16 the Notice so that it included all putative class members, including those as alleged in Plaintiff 17 Arana's complaint. However, at thistimeMs. Rivapalacio insisted that the proposed Notice be 18 sent to unidentified cunent and former employees of "staffing agencies" and "any other third 19 parties" - categories of entities that are not parties to this lawsuit. I pointed out to Ms. Rivapalcio 20 that it is inappropriate to send Notices to these non-parties. Attached hereto as Exhibit J is a trae 21 and conect copy of the December 20-21, 2018 e-mail exchange with Ms. Rivapalacio confirming 22 the substance of our telephone conference. 23 18. At the hearing on the Belaire-West Motion on January 4, 2018, the Court agreed 24 with Health Net and summarily rejected Plaintiff Spears' argument that the Notice should be sent 25 to non-parties' employees, emphasizing that "[t]he Court notes that plaintiffs have yet to sue as a 26 defendant any staffing agency or other third party which is alleged to have provided labor to 27 28 -4- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA. INC.'S MOTION FOR MONETARY SANCTIONS 1 Health Net." Attached hereto as Exhibit K is a tme and conect copy of the Court's Januaty 4, 2 2018 Order on Plaintiff Spears' Belaire-West Motion. 3 Plaintiff Spears' First Set of Motions to Compel 4 19. On November 15, 2017, Ms. Rivapalacio e-mailed me demanding that Health Net 5 immediately supplement its responses to Plaintiff Spears' discovery requests and produce 6 additional documents. In response, I reminded Ms. Rivapalacio that, per the parties' meet-and- 7 confer discussions on October 24th and October 25th, the parties had already agreed to a process 8 for resolving the concems identified in the underlying discovery. Specifically, the parties had 9 agreed they would submit the issue of sequencing discovery at the upcoming CMC with Judge 10 Perkins. I also reassured Plaintiff Spears that, consistent with my prior representation. Health Net 11 would be supplementing its responses relating to class-certification discovety and intended to do 12 so before the CMC. I also reminded Plaintiff Spears that it had granted her an extension within 13 which to file a motion to compel in case Judge Perkins did not resolve the discovery issues at the 14 CMC. Attached hereto as Exhibit L is a true and conect copy of the November 15-16, 2017 e- 15 mail exchange with Ms. Rivapalacio. 16 20. On November 24, 2017,1 e-mailed a stipulation and proposed protective order to 17 Ms. Rivapalacio and Mr. Setareh in anticipation that it would govem the parties' exchange of 18 confidential documents and information. Attached hereto as Exhibit M is attueand conect copy 19 of my November 24, 2017 e-mail to Ms. Rivapalacio and Mr. Setareh without the attachment. 20 . 21. On December 1, 2017, Plaintiff Spears filed her first motion to compel further 21 responses to her requests for production, set one, and on December 6, filed another motion to 22 compelfortherresponses to her special intenogatories, set one (collectively, "First Set of Motions 23 to Compel"). Attached hereto as Exhibit N is a trae and conect copy of Plaintiff Spears's first 24 motion to compelfortherresponses to her requests for production, set one. Attached hereto as 25 Exhibit O is a trae and conect copy of Plaintiff Spears's first motion to compelfortiierresponses 26 to her special intenogatories, set one. 27 28 -5- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA. FNC'S MOTION FOR MONETARY SANCTIONS 1 22. On December 6 and 7, 2017, Health Net served its supplemental discovery 2 responses and documents to Plaintiff Spears, and agreed to produce additional documents once an 3 appropriate protective order was in place. With respect to putative class members' contact 4 information. Health Net restated that it would provide such information once an appropriate 5 Belaire-West process was in place. 6 23. 1 attended the December 8, 2017 CMC before Judge Perkins. Ms. Rivapalacio was 7 present at the CMC via CourtCall. During this CMC, Judge Perkins set Febraary 15, 2018 as the 8 hearing date for Health Net's motion to sequence discovery. Attached hereto as Exhibit P is a 9 trae and conect copy of the Court's minute order regarding the December 8, 2017 CMC. 10 24. On the afternoon of December 8, 2017,1 e-mailed Ms. Rivapalacio and Mr. 11 Setareh requesting that Plaintiff Spears continue the hearing dates on her pending motions until 12 after Judge Perkinsraledon the sequencing motion. Many of the issues raised by Plaintiff 13 Spears's First Set of Motions to Compel would overlap with Health Net's then-forthcoming 14 motion to sequence. Attached hereto as Exliibit Q is a trae and conect copy of my December 8, 15 2017 e-mail conespondence to Ms. Rivapalacio and Mr. Setareh. 16 25. On December 13,2017, Ms. Rivapalcio informed me that she refoses to continue 17 the hearing date on her pending motions, claiming that that the responses were deficient because 18 certain documents were not produced on the basis that no protective order was in place. In 19 response, 1 pointed out that I had not yet received Plaintiffs' signature on the proposed stipulated 20 protective order but, once received, Health Net would serve responsive documents on all parties. 21 Attached hereto as Exhibit R is a trae and conect copy of the December 13-14, 2017 e-mail 22 exchange with Ms. Rivapalacio. 23 26. On December 15, 2017,1 received an e-mail from Ms. Rivapalacio attaching her 24 and Plaintiff Arana's counsel's signature on the proposed protective order. Attached hereto as 25 Exhibit S is a trae and conect copy of the December 15, 2017 e-mail 1 received from Ms. 26 Rivapalacio without the attachments. 27 28 -6- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS 1 27. On December 19,2017, my office served Health Net's supplemental document 2 production pursuant to the parties' stipulated protective order. 3 28. On December 15, 2017, after the Courtraledon Plaintiff Spears' Belaire- West 4 Motion, I reached out to Ms. Rivapalacio, renewing my request that Plaintiff Spears withdraw her 5 First Set of Motions to Compel because the issues raised in those motions overlapped with the 6 Motion to Sequence Discovery. In response, Ms. Rivapalacio withdrew her First Set of Motions 7 to Compel. Further, Health Net continued both Plaintiffs' respective deadlines to bring motions 8 to compel further responses to their written discovery until March 1,2018- two weeks after 9 Health Net anticipated receiving a ruling on its Motion to Sequence Discovery. Attached hereto 10 as Exhibit T is a trae and conect copy of my December 15, 2017 and December 18, 2017 e-mail 11 exchange with Ms. Rivapalacio. 12 29. Judge Perkins has since continued the hearing date for the Motion to Sequence 13 Discovery to March 9, 2018 per the stipulation of the parties. Accordingly, to continue to ensure 14 that Plaintiff Spears is not prejudiced. Health Net has granted Plaintiff Spears an additional 15 extension oftimeuntil March 23, 2018 to file a motion to compel as to any issue Judge Perkins 16 does not address. 17 Plaintiff Spears' Second Set of Motions to Compel 18 30. Despite the forthcoming Motion to Sequence and Health Net's extending her 19 deadline to file these discovery motions, without meeting and confening, on January 17, 2017, 20 Plaintiff Spears filed her second motions to compelftirtherresponses to her requests for 21 production, set one, and special intenogatories, set one (collectively, "Second Set of Motions to 22 Compel"), which were set to be heard on Febraary 13, 2018 ~ two days before Judge Perkins was 23 scheduled to hear Health Net's Motion to Sequence Discovery. Attached hereto as Exhibit U is a 24 trae and correct copy of Plaintiff Spears's second motion to compel further responses to her 25 requests for production, set one. Attached hereto as Exhibit V is a true and conect copy of 26 Plaintiff Spears's second motion to compel further responses to her special intenogatories, set 27 one. 28 7- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS 1 31. On Januaty 23,2018, Health Net filed its Motion to Sequence Discovery, 2 Attached hereto as Exliibh W is a trae and conect copy of Health Net's Memorandum of Points 3 and Authorities in support of its Motion to Sequence Discovery. 4 32. After Plaintiff Spears's filing her Second Set of Motions to Compel, on January 5 23, 2018,1 requested that she withdraw them because Judges Perkins would be deciding the 6 issues raised by them when he rules on Health Net's Motion to Sequence Discovery. I likewise 7 told her that if she did not do so and Health Net was forced to oppose them. Health Net would 8 have no choice but to seek sanctions. I also reconfirmed that Health Net had given her a two- 9 week extension of time to file any motion to compel after Judge Perkinsraledon the Motion to 10 Sequence. Plaintiff Spears refused Health Net's request to withdraw her motions. Attached 11 hereto as Exhibit X is a trae and correct copy of the e-mails exchanged between myself and Ms. 12 Rivapalacio. 13 33. .At 2:54 p.m. on the date of its deadline, January 30, 2018, Health Net filed its 14 oppositions to Plaintiff Spears' Second Set of Motions to Compel and sought appropriate 15 sanctions against Plaintiff Spears' counsel. At 5:20 p.m. on the same day, Ms. Rivapalacio e- 16 mailed me, stating that Plaintiff Spears was withdrawing her Second Set of Motions to Compel. 17 Ms. Rivapalcio stated that she agreed that Judge Perkins intends to decide the discovety issues of 18 concem when heraleson the Motion to Sequence. Ms, Rivapalacio's e-mail attached 19 conespondence she had messengered to the Court earlier that day confirming that Plaintiff Spears 20 had already withdrawn her motions. Attached hereto as Exhibit Y is a trae conect copy of the e- 21 mail conespondence from Ms. Rivapalacio, with the attachment sent to the Court. 22 Plaintiffs'Counsel 23 34. On the website of Blumenthal Nordrehaug Bhowmik De Blouw LLP, counsel for 24 Plaintiff Spears, the firm reports that the attomeys have handled a large number of wage-and-hour 25 class actions. They claim they have recovered millions of dollars in these case. Attached hereto 26 as Exhibit Z is a true and conect copy of a print-out from the website of Blumenthal Nordrehaug 27 Bhowmik De Blouw LLP, which 1 accessed on Febraary 28, 2018. 28 -8 DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS 1 35. Plaintiff Arana's coun.sel has not filed any discovery motions in this matter. 2 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing 3 is trae and correct. Executed this 28th day of Febraary, 2018. 4 5 STEPHANIE GAIL LEE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR MONETARY SANCTIONS Exhibit A BLUMENTHAL, NORDREHAUG & BHOWMIK LLP Norman Blumenthal (SBN 068687) norm@bamlawca.com 2255 Calle Clara La Jolla, CA 92037 Tel: 858.551.1223 Fax: 858.551.1232 Attomeys for Plaintiff ANDREA SPEARS SETAREH LAW GROUP Shaun Setareh (SBN 204514) shaun@setarehlaw.com H. Scott Uviant (SBN 200834) scott@$etarehlaw.com 94S4 Wilshire Boulevard, Suite 907 Beverly Hills, Califomia 90212 10 Telephone (310)888-7771 Facsimile (310) 888-0109 11 Attomeys for Plaintiff, 12 TOMAS R. ARANA 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SACRAMENTO 15 UNLIMITED JURISDICTION 16 ANDREA SPEARS, an individual, on behalf Consol. No. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 17 similarly situated, Assigned For All Purposes to the Honorable Alan G. Perkins, Department 35 18 Plaintijf, Amended As a Matter of Right Pursuant to 19 Labor Code Section 2699,3(a)(2)(C) 20 HEALTH NET OF CALIFORNL\, INC., a CLASS ACTION W f California corporation; and DOES 1 through 21 50, inclusive. CONSOLIDATED COMPLAINT FOR: 22 Defendants. 1. Failure to Provide Meal Periods (Lab. Code §§ 204,223,226.7,512, and 1198); .23 2. Failure to Provide Rest Periods (Lab. Code TOMAS R. ARANA, on behalf of himself, all §§204,223,226.7, and 1198); 24 others similarly situated. 3. Failure to Pay Hourly Wages (Lab. Code §§ 223,510,1194,1194.2,1197,1997.1, 25 Plaintiff, and 1198); 4. Failure to Provide Accurate Written Wage 26 vs. Statements (Lab. Code § 226(a)); 5. Failure to Timely Pay All Final Wages 27 HEALTH NET OF CALIFORNIA, INC, a (Lab. Code §§ 201-203); Califomia corporation; and DOES 1 through 6. Unfair Competition (Bus. & Prof. Code §§ 28 50, inclusive, 17200, e/se?.); 7. Civ. Penalties (Lab, Code §§ 2698, etseq.) Defertdnntx. JURY TRIALDEMANDED Spears v. Health Net afCalifomia, Inc. Consolidated Class Action Complaint 1 Plaintiffs, Andrea Spears and Tomas R. Arana (referred to as "Plaintiffs"), on behalf of 2 themselves, all others similarly situated, and the general public, complain and allege as follows: 3 INTRODUCTION 4 1. Plaintiffs brings this class andrepresentativeaction against defendant Health Net 5 of California, Inc., a California corporation (referred to as "Health Net'O and Does 1tiuoughSO, 6 inclusive (collectivelyreferredto as "Defendants") for alleged violations of the Labor Code and 7 Business and Professions Code. As set forth below, Plaintiffs allege that Defendants failed to 8 provide them and all other similarly situated individuals with meal periods, failed to provide 9 them withrestperiods, failed to pay premium wages for missed meal and/or rest periods, failed 10 to pay them for all hours woriced, failed to pay overtime wages at the correctrate,failed to pay 11 doubletimewages at the correctrate,failed to provide them with accurate written wage 12 statements, and failed totimelypay them all of theirfinalwages following separation of 13 employment. Plaintiff Arana also alleges that Defendants misclassified him and all similarly 14 situated individuals as exempt employees when they were, in fact, non-exempt employees who 15 were entitied to meal andrestperiods and overtime compensation. Based on these alleged 16 violations. Plaintiffs now bring this class andrepresentativeaction to recover unpaid wages, 17 restitution, andrelatedreliefon behalf of themselves, all others similarly, situated, and the 18 genera] public. 19 JURISDICTION AND VENUE 20 2. This Court has subject matter jurisdiction to hear this case because Plaintiffs are 21 uiformed andtelieve,and basedtiiereonallege,tiiatthe monetaty damages and restitution sought 22 herein for Defendants' conduct exceeds the minimal jurisdictional limits of die Superior Court. 23 3. Venue is proper in Sacramento County pursuant to Code of Civil Procedure 24 sections 395(a) and 395.5 in that liability arose in Sacramento County because at least some of the 25 transactions that are the subject matter of this Complaint occurred therein and/or each defendant is 26 found, maintains offices, transacts business, and/or has an agent therein. 27 /// 28 /// Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 PARTIES 2 5. Defendant Health Net of Califomia, Inc. is a Califomia corporation authorized to 3 do business in Califomia. 4 6. Plaintiffs are ignorant of the trae names, capacities,relationships,and extent of 5 participation in the conduct alleged herein, of the defendants sued as Does Itiirough50, 6 inclusive, but are informed and believe that said defendants are legallyresponsiblefor the 7 conduct alleged herein and therefore sues these defendants by suchfictitiousnames. Plaintiffs 8 will amend this complaint to allege both the trae names and capacities of the Doe defendants 9 when ascertained. 10 7. Plaintiffs are informed and believe that each defendant acted In all respects 11 pertinent to this action as the agent of the other defendants, carried out a joint scheme, business 12 plan or policy in all respects pertinent hereto, and that the acts of each defendant are legally 13 attributable to each of the other defendants. 14 CLASS ALLEGATIONS 15 8. This action has been brought and may be maintained as a class action pursuant to 16 Code of Civil Procedure section 382 because there is a well-defined community of interest 17 among the persons who comprise diereadilyascertainable classes defmed below and because 18 Plaintiffs are unaware of any difficulties likely to be encountered in managing this case as a 19 class action. 20 9. Action: The Action is defmed as the suitfiledon April 5,2017 witii the 21 Sacramento County Superior Court Case No. 34-2017-00210560, on behalf of Plaintiffs, all 22 others similarly situated against Health Net Inc. 23 10. Relevant Time Period: Therelevanttime period is defined as the time period 24 beginning four years prior to thefilingof the Action until judgment is entered. 25 11. Hie class and sub-class members are defined as follows: 26 27 Shourly on-E»emDt Class : AU persons employed by Healtii Net of California Inc. and ealth Net, Inc. and/or any staffmg agencies and/or any otiier third parties in or non-exempt positions in Califomia during the Relevant Time Period. 28 Non-Eiempt M^i Period Sub-Class: All Non-Exempt Class members who worked a shift in excess offivehours during the Relevant Tune Spears v. Health Net of California, Irw. Consolidated Class Action Complaint 1 Period. 2 Non-Exempt Rest Period Sub-Class: All Non-Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the 3 Relevant Time Period. 4 Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed bv Defendants in Califomia during the period 5 beginning one year before mefilingof the Action and ending when foial judfgment is entered. 6 Non-Exempt Waiting Time Penalties Sub-Class: All Non-Exempt 7 Class members who separated from their employment with Defendants during the period beginning three years before thefilingof die Action and 8 ending whenfinaljudgment is entered. 9 Exempt Class: All persons enmloyed by Healtii Net of Califomia, Inc. and Health Net Inc. and/or any staffing agencies and/or any other third parties in 10 Califomia as a Business Analyst Systems Analyst Contact Center Analyst or Analyst during the Relevant Time Period. 11 Exempt Meal Period Snb-Claas: All Exempt Class members who 12 worked a shift in excess offivehours during the Relevant Time Period: 13 Exempt Rest Period Sub-Class: All Exempt Class members who worked a shin of at least three and one-half (3.S) hours during the 14 Relevant Time Period. 15 Exempt Wage Statem^t Penalties Sub-Class: All Exempt Class members employed by Defendants in California during the period 16 beginning one year before thefilingof the Action and ending when final judgment is entered. 17 Exempt Waiting Time Penalties Sub-Class; All Exempt Class members 18 who separatedfromtheu* onployment with Defendants during the period teginnmg three years before thefilingof the Action and ending when fmal 19. judgment is entered. 20 Rounding Class: All persons employed by Health Net of Califomia, bic. and Health Net Inc. and/or any staffing agencies and/or any other third parties in 21 Cailfomia whose hours worked were affected by Defendants'roundingpractices during the Relevant Time Period. 22 UCL ClaaB: Ail Non-Exempt Class, Exempt Class and Rounding Class members 23 employed by Defendants in Califomia during the Relevant Time Period. 24 12. Reservation of Rights: Pursuant to Rule of Court 3;76S(b), Plaintiffs reserve the 25 right to amend or modify the class definitions with greater specificity, by fiulher division into 26 sub-classes, and/or by limitation to particular issues. 27 13. Numerositv: The class members are so numerous that the individual joinder of 28 each individual class member is impractical. While Plaintiffs do not cunently know the exact Spears v. Health Net ofCalifomia, Inc. Consolidated Class Action Complaint 1 number of class members, Plaintiffs are informed and believe that the actual number exceeds 2 the minimumrequiredfor numerosity under Califomia law. 3 14. Commonality and Predominance: Common questions of law and fact exist as to 4 all class members and predominate over any questions which affect only individual class 5 members. These common questions include, but are not limited to: 6 A. Whether Defendants maintained a policy or practice of failing to provide 7 employees witii their meal periods; 8 B. Whether Defendants maintained a policy or practice of failing to provide 9 employees with their rest periods; 10 C. Whether Defendants failed to pay premium wages to class members 11 when they have not been provided withrequiredmeal and/orrestperiods; 12 D. Whether Defendants failed to pay minimum and/or overtime wages to 13 class members as a result of policies that fail to provide meal periods in 14 accordance with Califomia law; 15 E. Whether Defendants used payroll formulas that systematically fail to 16 account for non-discretionary bonuses and/or other applicable 17 remuneration when calculatingregularratesof pay for class members; 18 F. Whether Defendants failed to pay overtune wages to class members as a 19 result of incorrectly calculatingtiieirregularratesof pay; 20 G. Whether Defendants have failed to pay premium wages to class members 21 based on theirrespective"regularratesof compensation" by not 22 including commissions and/or income in calculating theratesat which 23 those wages are paid; 24 H. Whether Defendants failed to provide class members with accurate 25 written wage statements as aresultof providing them with written wags 26 statements with inaccurate entries for, among other things, amounts of 27 gross and net wages, and total hours worked; 28 I. Whether Defendants applied policies or practices that result in late and/or Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 mcompletefinalwage payments; 2 J. Whether Defendants are liable to class members for waiting time 3 penalties under Labor Code section 203; 4 K. Whether class members are entitied torestitutionof money or property 5 that Defendants may have acquiredfix>mthem through unfair 6 competition, 7 15. Typicality: Plaintiffs' clauns aretypicalof the other class members* claims. 8 Plaintiffs are informed and believe and thereon allege that Defendants have a policy or practice 9 of failing to comply with the Labor Code and the Business and Professions Code as alleged 10 herein. 11 16. Adequacy of Class Representative: Plaintiffs are adequate class 12 representatives in that they have no interests that are adverse to, or otiierwise conflict with, the 13 interests of absent class members and is dedicated to vigorously prosecuting this action on their 14 behalf Plaintiffs will fairly and adequatelyrepresentand protect the mterests of the other class 15 members. 16 17. Adequacy of Class Counsel: Plaintiffs'counsel are adequate class counsel in 17 that they have no known conflicts of interest with Plaintif]^ or absent class members, are 18 experienced in wage and hour class action litigation, and are dedicated to vigorously 19 prosecutmg this action on behalf of Plaintiffs and absent class members. 20 18. Superiority; A class action is vastly superior to other available means for fafr 21 and efficient adjudication of the class members' claims and would be beneficial to the parties 22 and the Cotut. Class action treatment will allow a number of similarly situated persons to 23 simultaneously and eSicientiy prosecute Iheir common claims in a single forum witiiout the 24 unnecessaty duplication of effort and expense that numerous individual actions would entail. In 25 addition, the monetaty amounts due to many mdividual class members are likely to be relatively 26 small and would thus make it difficult, if not impossible, for mdividual class members to both 27 seek and obtain relief Moreover, a class action will serve an unportant public interest by 28 permitting class members to effectively pursue the recovety of moneys owed to them. Further, Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 a class action will prevent the potential for inconsistent or contradictoty judgments inherent in 2 individual litigation. 3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 4 19. Plaintiff Arana was hired by Defendants on dr about Febraaiy 25,2008 as a 5 hourly, non-exen^ employee who worked at a call center in California. 6 20. On or about November 16,201S, Plamtiff Arana was promoted to a salary, 7 exempt position. 8 21. Plaintiff Spears was hired by Defendaiits in December of 2013 and worked for 9 Defendants up to October of 2016 as an hourly, non-exempt employee m Califomia. 10 Clock In Process 11 22. Plaintiffs and putative class were trained to clock in for each work shift using the 12 desktop computer assigned to them. Plaintiffs and the putative class were required tofirsttum 13 on their computer and wait for it to load. It generally took approximatelyfiveto ten minutes for 14 it to boot up to die Windows log in prompt. 15 23. After Plaintiffs and the putative class entered their usemame and password, their 16 computer would proceed to load to the desktop while other programs were started in the 17 background automatically as part of the normal boot up process. It generally took another five 18 to ten minutes for it to complete the entire boot up cycle. 19 24. Occasionally, Plaintiffs and the putative class would encoimter login errors or 20 computer crashes that wouldrequirethem to restart the entire boot up process. The entire time 21 spent booting up die computer would not be accurately recorded and thereforeresultedin 22 Plaintiffs and the putative class not bemg paid for all hours worked while waiting for the 23 computer the boot up. 24 25. After the computer successfiiUy booted up. Plaintiffs and the putative class 25 would be required to log in to other programs such as CareMark, CSI and Marks. 26 26. After logging into the above-referenced [M-ograms, Plaintiffs and the putative 27 class would finally log in to a program called "Convergence" which is the program that is used 28 by all the call center employees for making and receiving customer service calls. It is only upon Spears v. Health Net ofCalifornia, Inc Consolidated Class Action Complaint 1 logging into Convergence vnll an employee berecognizedas being "clocked in" by Defendants, 2 which is the time recognized as the actual start tune for each workday and w^en Plaintiffs and 3 the putative class would begin to be paid by Defendants. 4 27. Accordingly, by thetimePlaintiffs and the putative class logged into 5 Convergence,fifteento thirty minutes or more may have already passed - all of which were not 6 properly recorded astimeworked and whichresultedin Plaintiffs and the putative class not 7 being paid for all hours worked by Defendants. 8 Clock Out Process 9 28. Similarly, upon clocking out for each work shift. Plaintiffs and the putative class 10 wererequiredto shutdown their computers by following a sequence of steps. First they were 11 required to log out of Convergence. Upon logging out of Convergence^ each employee was 12 deemed to be "clocked out" which is the timerecognizedas the actual endtimefor each 13 workday and when Plaintiffs and the putative class would stop being paid by Defendants. 14 29. Afler logging out of Convergence, Plaintiffs and the putative class would then 15 log out of the otiier programs they had open during their work shift. After all the programs 16 were shutdown, they would then shut down the computer. 17 30. Accordmgly, after Plaintiffs andtiieputative class logged out of Convergence, 18 they were required to spend approximatelyfiveto ten minutes to shut down other programs and 19 the computer - all of which were not properly recorded astimeworiced and which resulted in 20 Plaintiffs and the putative class not being paid for all hours woriced by Defendants. 21 Misclassification as Exempt Employee 22 31. Plaintiff Arana and die putative Exempt Class were also misclassified as exempt 23 employees when in fact they were non-exempt Plaintiff Arana and the putative Exempt Class 24 regularly worked more than eight hours each workday, and more than forty hours each 25 workweek. Plaintiff Arana and the putative Exempt Class were paid afixedsalatyregardlessof 26 the hourstiieyworked and were not paid any overtime compensation. 27 32. Plaintiff Arana andtiieputative Exempt Class did not perform duties, more tiian 28 fifty percent (50%) of thetime,that would qualifytiiemas exempt employees under the ^}ears v. Health Net ofCalifornia. Inc. Consolidated Class Action Complaint 1 Professional, Executive or Administrative exemptions. Accordingly, Plaintiff Arana and the 2 putative Exempt Class were entitied to all the protections afforded to them as non-exempt 3 employees under Califomia law. 4 33. As a result of being misclassified as an exempt employee, thetimespent by 5 Plaintiff Arana and the putative Exempt Class were not accuratelyrecordedby the timekeeping 6 system utilized by Defendants and thereforeresultedin the failure to pay Plaintiff Arana and the 7 putative Exempt Class for all hours actually worked and overtune compensation. 8 Improper Rounding Fracticw 9 34. Moreover, begiimmg Januaty 1,2017, Defendants began to utilize a rounding 10 practice that required Plaintiffs and the putative class toroundtheir start times to the next hour. 11 For example, if an employee was scheduled to work at 9:00 a.m., that employee had a six 12' minute grace period to clock in for their shift by that time. If this employee attempts to clock in 13 after the expiration of the grace period, die employee's start time would beroimdedto the next 14 hour which would be 10:00 a.m. even though the employee commenced work at 9:10 a.m. 15 35. Plaintiffs are informed and believe, and thereupon allege, that Defendants have 16 not, did not and do not keep records of actual hours worked by Plaintiffs and the putative class. 17 In the absence ofrecordsshowing actual hours worked, Plaintiffs and the putative class are 18 unable to ascertain whether (1) Defendants'roundingpractices comply with Califomia law; (2) 19 whether Defendants'roundmgpractices resulted over a period of time, in failure to compensate 20 Plaintiffs and the putative class properly for all the time they actually worked; and (3) whether 21 Plaintiffs and the putative class were properly paid for all hours worked. 22 Missed Meal Periods 23 36. Plaintiffs and the putative class members were not provided with meal periods of 24 at least thirty (30) minutes for eachfive(5) hour work period due to (1) Defendants' policy of 25 not schedulmg each meal period as part of each work shift; (2) chronically understafflng each 26 work shift witfi not enough workers; (3) imposing so much work on each employee such that it 27 made it imlikely that an employee would be able to take their breaks if they wanted to finish 28 their woric on time; and (4) no formal written meal andrestperiod policy that encouraged l^ars V. Hecdth Net of California, Inc. Consolidated Class Action Complaint 1 employees to take their meal andrestperiods. 2 37. As aresultof Defendants' policy, Plaintiffs and the putative class were regularly 3 not provided with uninterrapted meal periods of at least thirty (30) minutes for eachfive(5) 4 hours worked due to complying with Defendants' productivityrequnementsthat requked 5 Plaintiffis and the putative class to work through their meal periods in order to complete their 6 assignments on time. 7 Missed Rest Periods 8 38. Plaintiffs and the putative class members were not provided with rest periods of 9 at least ten (10) minutes for each four (4) hour work period, or majorfractionthereof, due to (1) 10 Defendants' policy of not scheduling each est period as part of each work shift; (2) chronically 1-1 understaffing each work shift with not enough woricers; (3) imposing so much work on each 12 employee such that it made it imlikely that an employee would be able to take their breaks if 13 they wanted tofinishtheir work on time; and (4) no formal written meal andrestperiod policy 14 that encouraged employees to take their meal andrestperiods. 15 39. As a result of Defendants' policy, Plauitiffs and the putative class were regularly 16 not provided with uninterrapted rest periods of at least ten (10) mmutes for each four (4) hours 17 worked due to complying vyitii Defendants' productivityrequirementsthat required Plaintiffs 18 and the putative class to work through theirrestperiods in orde