Preview
FILED
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com EHDORSEO
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000 2018JAH3O PH 3:0I
3 Sacramento, CA 95814-4497 ^^UPFRIuR COURT OF CALlFOij^^lA
Telephone: +1 916 447 9200
4 Facsimile: . +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 Soudi Figueroa Stireet, Suite 3200
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
9 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated.
15 Plaintiff, DECLARATION OF STEPHANIE GAIL
LEE IN SUPPORT OF DEFENDANT'S
16 OPPOSITIONS TO PLAINTIFF'S
MOTIONS TO COMPEL FURTHER
17 HEALTH NET OF CALIFORNIA, INC., a RESPONSES TO DOCUMENT
Califomia Corporation; and Does 1 through 50, REQUESTS AND SPECIAL
18 inclusive. INTERROGATORIES; REQUEST FOR
SANCTIONS
19 Defendants.
Date: February 13, 2018
20 Time: 9:00 a.m.
Judge: Hon. Christopher E. Krueger
21 Dept.: 54
22 Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all FAC Filed: June 29, 2017
CO 23 others similarly situated. Consolidated Complaint Filed: Dec. 21, 2017
24 Plaintiff, Complaint Filed: August 1, 2017
•\
<
2 25 V.
HEALTH NET OF CALIFORNIA, INC., a
O 26
Califomia corporation; and DOES 1-50,
DC 27 inclusive.
O 28 Defendant.
SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
1 1, Stephanie Gail Lee, hereby decleire as follows:
2 1. I am an attomey duly admitted to practice before the courts of the State of Califomia
3 and am an associate in the law firm of Orrick, Herrington & Sutcliffe LLP, attomeys of record for
4 Defendant Health Net of Califomia, Inc. ("Health Net"). I make this declaration on personal
5 knowledge and, if swom as a witness, could competently testify to the following facts except where
6 otherwise indicated.
7 2. On April 5, 2017, Plaintiff Andrea Spears filed her putative wage-and-hour class
8 action Complaint against Health Net, piuporting to represent all ciurent 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 Attomeys 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 ciurent and former non-exempt
14 employees of Health Net, among others, and a subcleiss 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, Plaintiffs filed a
17 Consolidated Complaint. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs'
18 Consolidated Complaint.
19 5. Health Net filed its Answer to the Consolidated Complaint on January 22,2018, and
20 anticipates filing a dispositive motion as to Plaintiffs' regular rate and rounding claims.
21 6. Both Plaintiffs have propounded written discovery on Health Net. Plaintiff Spears
22 served her first set of document requests document requests, special interrogatories, employment
23 law form interrogatories, and admission requests on July 25, 2017. Attached hereto as Exhibit B
24 is a tme and correct copy of Plaintiff Spears'sfirstset of document requests to Health Net. Attached
25 hereto as Exhibit C is a tme and correct copy of Plaintiff Spears'sfirstset of special interrogatories
26 to Health Net.
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SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
1 7. Plaintiff Arana served his first and second sets of special interrogatories and first
2 sets of document requests, employment law form interrogatories, and admission requests on
3 September 19,2017.
4 8. On September 12,2017, Health Net timely served responses its responses to Plaintiff
5 Spears' first sets of special interrogatories and document requests and produced responsive
6 documents two days later. Attached hereto as Exhibit D is a true and correct copy of Health Net's
7 responses to Plaintiff Spears'sfirstset of document requests. Attached hereto as Exhibit E is a true
8 and correct copy of Health Net's responses to Plaintiff Spears's first set of special interrogatories.
9 9. On October 17, 2017,1 sent an e-mail to Victoria Rivapalacio, counsel for Plaintiff
10 Spears, and Shaun Setareh, counsel for Plaintiff Arana, requesting that all parties' counsel
11 collectively discuss written discovery and specifically. Plaintiff Spears' proposed Belaire-West
12 notice in light of the Court's consolidation order. During our ensuing October 24-25, 2017 meet
13 and confer over the telephone and e-mail, Ms. Rivapalacio, Mr. Setareh and I agreed to raise the
14 issue of phasing discovery at the December 8, 2017 initial case management conference ("CMC")
15 and Health Net agreed that it would provide class certification-related discovery in the interim. The
16 parties did not discuss the specifics of any particular discovery request, and Health Net granted
17 Plaintiff Spears an extension to file any motion to compel on any outstanding discovery until after
18 the CMC so that Plaintiff Spears would not be prejudiced. Attached hereto as Exhibit F is a tme
19 and correct copy of my October 24-25, 2017 e-mail correspondence with Ms. Rivapalacio and Mr.
20 Setareh.
21 10. On November 9, 2017, I provided Ms. Rivapalacio and Mr. Setareh with Health
22 Net's suggested revisions to Plaintiff Spears' draft Belaire-West Notice (the "Notice") via e-mail.
23 In my e-mail, 1 invited Ms. Rivapalacio and Mr. Setareh to continue to meet and confer over the
24 contents of the Notice. Attached hereto as Exhibit G is a true and correct copy of my November 9,
25 2017 e-mail to Ms. Rivapalacio and Mr. Setareh.
26 11. Notwithstanding my meet and confer efforts to resolve the issue conceming the
27 contents of the Notice, including to whom it should be issued, Ms. Rivapalacio stated in e-mail, "If
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SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
1 it turns out the class is broader than the category as we have identified it, we will revisit the mailing
2 at that time. The motion is attached." Plaintiff Spearsfiledher Motion for Opt-Out Privacy Notice
3 to Be Sent to Putative Class Members ("BW Motion") on November 16, 2017. Attached hereto as
4 Exhibit H is a true and correct copy of my November 9-16, 2017 e-mail exchange with Ms,
5 Rivapalacio without the attachment.
6 12. On November 24, 2017, 1 e-mailed a stipulation and proposed protective order to
7 Ms. Rivapalacio and Mr. Setareh in anticipation that it would govem the parties' exchange of
8 confidential documents and information. Attached hereto as Exhibit I is a tme and correct copy of
9 my November 24, 2017 e-mail to Ms. Rivapalacio and Mr. Setareh without the attachment.
10 13. On December 1, 2017, Plaintiff Spears filed her first motion to compel further
11 responses to her requests for production, set one, and oh December 6, filed another motion to
12 compel fiarther responses to her special interrogatories, set one (collectively, "Discovery Motions").
13 Attached hereto as Exhibit J is a tme and correct copy of Plaintiff Spears's first motion to compel
14 further responses to her requests for production, set one. Attached hereto as Exhibit K is a tme and
15 correct copy of Plaintiff Spears's first motion to compel further responses to her special
16 interrogatories, set one.
17 14. On December 6 and 7,2017, Health Net served its supplemental discovery responses
18 and documents to Plaintiff Spears, and agreed to produce additional documents once an appropriate
19 protective order was in place. Attached hereto as Exhibit L is a true and correct copy of Health
20 Net's December 6,2017 supplemental responses to Plaintiff Spears' sfirstset of document requests.
21 ' 15,^ 1 attended the December 8, 2017 CMC before Judge Perkins. During this CMC,
22 Judge Perkins set February 15, 2018 as the hearing date for Health Net's motion to sequence
23 discovery. Attached hereto as Exhibit M is a tme and correct copy of the Court's minute order
24 regardingtheDecember 8,2017CMC.
25 16. On the afternoon of December 8,2017,1, e-mailed Ms. Rivapalacio and Mr. Setareh
26 requesting that Plaintiff Spears continue the hearing dates on her pending Discovery Motions until
27 after Judge Perkins mled on the sequencing motion. Many of the issues raised by Plaintiff Spears's
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SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
1 Discovery Motions would overlap with Health Net's then-forthcoming motion to sequence. Ms.
2 Rivapalacio did not respond to my request. Attached hereto as Exhibit N is a tme and correct copy
3 of my December 8, 2017 e-mail correspondence to Ms. Rivapalacio and Mr. Setareh.
4 17. On December 15, 2017, I received an e-mail from Ms. Rivapalacio attaching her
5 and Plaintiff Arana's counsel's signatiore on the proposed protective order. Attached hereto as
6 Exhibit 0 is a true and correct copy of the December 15, 2017 e-mail I received from Ms.
7 Rivapalacio without the attachments.
8 18. On December 19, 2017, my office served Health Net's supplemental document
9 production pursuant to the parties' protective order. Attached hereto as Exhibit P is a true and
10 correct copy ofthe proof of service for Health Net's supplemental production.
11 19. The Court mled on Plaintiff Spears' BW Motion on December 15, 2017, continuing
12 the hearing to January 4,2018, and ordering the parties to further meet and confer and "remind[ing]
13 all counsel but especially [Plaintiff Spears'] that given the number of motions such as this which
14 must be addressed on a daily basis, there are simply not enough judicial resources available to
15 resolve each and every discovery dispute that could have and should have been resolved
16 informally." Attached hereto as Exhibit Q is a tme and correct copy of the Court's December 15,
17 2017 Order on Plaintiff Spears' BW Motion.
18 20. After the Court's admonitions. Plaintiff Spears withdrew her discovery motions at
19 counsel for Health Net's request. Further, Health Net continued both Plaintiffs' respective
20 deadlines to bring motions to compel further responses to their written discovery until March 1,
21 2018 - two weeks after Health Net anticipates receiving a mling on its Motion to Sequence
22 Discovery. Attached hereto as Exhibit R is a tme and correct copy of my December 18-19, 2017
23 e-mail correspondence with Ms. Rivapalacio without the attachments. Attached hereto as Exhibit
24 S is a tme and correct copy of my January 8, 2017 e-mail correspondence to Stacey Shim, Mr.
25 Setareh's colleague.
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SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
1 21. On January 23,2018, Health Net filed its Motion to Sequence Discovery. Attached
2 hereto as Exhibit T is a tme and correct copy of Health Net's Memorandum of Points and
3 Authorities in support of its Motion to Sequence.
4 22. Despite the Motion to Sequence and Health Net's extending her deadline to file
5 these Discovery Motions, Plaintiff Spearsfiledthese two Motions to Compel Discovery which are
6 set to be heard on February 13, 2018 - before Judge Perkins will hear Health Net's Motion to
7 Sequence.
8 23. After Plaintiff Spears's filing, I requested that she withdraw her motions, and
9 likewise informed her that if she did not do so, Health Net would have no choice but to seek
10 sanctions. I also reconfirmed that Health Net had given her a two week extension of time to file
11 any motion to compel after Judge Perkins ruled on the Motion to Sequence. Plaintiff Spears refused
12 Health Net's request to withdraw her motions. Attached hereto as Exhibit U is a tme and correct
13 copy of the e-mails exchanged between myself and Ms. Rivapalacio.
14 24. In total. Health Net has produced more than 2,600 pages of discovery and 21,880
15 lines of data in Microsoft Excel sheets related to Plaintiffs' personal claims, class certification and
16 the merits of Plaintiffs' regular rate and rounding claims. And, absent unforeseen circumstances,
17 Health Net anticipates that it will be able to provide putative class members' contact information
18 to the Belaire- West administrator before hearing on these motions.
19 25. Attached hereto as Exhibit Visa true and correct copy of the Declaration of Chrissy
20 Schneider In Support of Defendant's Motion to Sequence Discovery.
21 26. On December 20,2017,1 spoke over the telephone with Ms. Rivapalacio to discuss,
22 among other things, Plaintiff Spears's Special Interrogatory No. 14. I communicated Health Net's
23 position that Plaintiff Spears's request for "all forms of compensation" the non-exempt putative
24 class members were "eligible to receive[]" was vague and ambiguous. In response, Ms.
25 Rivapalacio communicated that Plaintiff Spears actually seeks their pay codes and a description of
26 such pay codes (her Special Interrogatory Nos. 11-12). Attached hereto as Exhibit W is a tme and
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SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
1 correct copy of my December 20, 2017 e-mail correspondence to Ms. Rivapalacio memorializing
2 our conversation wdthout the attachment.
3 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing
4 is tme and correct. Executed this 30th day of January, 2018.
5
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STEPHANIE GAIL LEE
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SQL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST
FOR SANCTIONS
EXHIBIT A
BLUMENTHAL, NORDREHAUG & BHOWMIK LLP
Norman Blumendial (SBN 068687)
nomi@bamIawca.com
2255 Calle Clani
La Jolla, CA 92037
Tel:. 858.55 M223
Fax: 858,551.1232
Attomeys for Plaintiff
ANDREA SPEARS
SETAREH LAW GROUP
Shaun Setareh tSBN 204S14)
5haun@setaienlaw.coin
H. Scott Leviant (SBN 200834)
scott@setarehlaw.com
94S4 Wilshire Boulevard, Suite 907
Beverly Hills, Califomia 90212
10 Telephone (310) 888-7771
Facsimile (310) 888-0109
11
Attorneys for Plaintiff
12 TOMAS R. ARANA
13 SUPERIOR COURT OF THE STATE OF CALIFORNU
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 ahd on behalf of all persons
n similarly situated. Assigned For All Purposes to the Honorable
Alan G. Peridns, Department 3S
18 Plaintiff,
Amended As a Matter of Right Pursuant to
19 Ubor Code Section 2699.3^)(2)(C)
20 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 through
CLASS ACTION y
21 SO, 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. . Failure to Pay Hourly Wages(Lab.
(! Code
§§ 223.510, 1194,11942,1197,1997.1,
25 Plaintiff, and 1198);
4. Failure to Provide Accurate Written Wage
26 Statements (Lab. Code § 226(a));
vs.
5. Failure to Timely Pay All Final Wages
27
28
HEALTH NET OF CALIFORNL\, INC., a
Califomia corporation; and DOES I through g
,ab. Code §§ 201-203);
nfair Competition (Bus. & Prof. Code §§
50, inclusive, 17200, £r/jgg.);
7. Civ. Penalties (Lab. Code §§ 2698, etseq.)
npf/mdants JURY TRIAL DEMANDED
Spears v. Heallh Net cf California, Inc. C(»isolidated Class Action Compiaint
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 and representative action against defendant Health Net
5 of California, Inc., a Califomia corporation (referred to as "Health Net") and Does 1 through 50,
6 inclusive (collectively referred to 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 with rest periods, failed to pay premium wages for missed meal and/or rest periods, failed
10 to pay them for all hours worked, failed to pay overtime wages at the correctrate,failed to pay
11 doubletimewages at the correctrate,failed to provide diem with accurate written wage
12 Statements, and failed totimelypay them all of theirfinalwages following separation of
13 employment Plaintiff Arana also alleges that Defendants misdassified him and all similarly
14 situated individuals as exempt employees when they were, in fact, non-exempt employees who
15 were entitled to meal and rest periods and overtime compensation. Based on these alleged
16 violations. Plaintiffs now bring this class and representative action to recover unpaid wages,
17 riBstitution, and related relief on behalf of themselves, all others similarly.situated, and the
IB general public.
19 JURISDICTION AND VENUE
20 2. This Court has subject matter jurisdiction to hear this case because Plaintififs are
21 infomied and believe, and based thereon allege, that the monetaiy damages and restitution sought
22 herein for Defendants' conduct exceeds die minimal jurisdictional limits of the 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 occuned therein and/or each defendant is
26 found, maintains offices, transacts business, and/or has an agent therein.
27 ///
28 III
Spears v. Health Net of California, Inc. Consolidated Class Action Complaint
1 PARTIES
2 5. Defendant Health Net of California, Inc. is a California corporation authorized to
3 do business in Califomia.
4 6. Plaintiffs are ignorant of the tme names, capacities, relationships, and extent of
3 participation in the conduct alleged herein, ofthe defendants sued as Does I through SO,
6 inclusive, but are informed and believe that said defendants are legally responsible for the
7 conduct alleged herein and therefore sues these defendants by suchfictitiousnames. Plaintiffs
8 will amend this complaint to allege both the tme names and capacities ofthe 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 ofthe 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 the readily ascertainable classes defined below and because
18 Plaintiffs are unaware of any difficulties likely to be encountered in managing diis case as a
19 class action.
20 9. Action; The Action is defined as the suit fded on April 5,2017 with 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: The relevanttimeperiod is defined as the time period
24 beginning four years prior to the filing of the Action until judgment is entered.
25 11. The class and sub-class members are defined as follows:
26
27
Shourly
on-Exemirt Class: AH persons employed by Healdi Net of California Inc. and
ealth Net, Inc. and/or any staffing agencies and/or any other third parties in
or non-exempt positions in Califomia during the Relevant Tune Period.
28 Non-Exemnt Meal Period Sub-Clasa: All Non-Exempt Class members
who worked a shift in excess of five hours during the Relevant Time
Spears v. Health Nel ofCalifornia, Inc. ConsoUdated Class Action Complaint
Period.
Non-Exempt Rwt Period Sub-Class: All Non-Exempt Class members
who worked a shift of at least three and one-half (3.5) hours during the
Relevant Time Period.
Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt
Class members employed bv Defendants in Califomia during the period
^ begiiming one year before vie filing of the Action and ending when final
judgment is entered.
Non-Exempt Waiting Time Penalties Sub-Class: Alt Non-Exempt
Class members who separated trom their emplovment with Defendants
during the period beginning three years before die filing of the Action and
a ending when final judgment is entered.
9 Exempt Class: All persons employed by Health Net of Califomia, Inc. and
Health NfSt, Inc. and/or any stafiing 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 Sub-Class: All Exempt Class members who
12 worked a shift in excess of five hours during the Relevant Time Period.
13 Exempt Rest Period Snb-Class: AU Exempt Class members Avho
worked a shift of at least three and one-half (3.5) hours during the
14 Relevant Time Period.
15 Exempt Wage Statement Penaltica Sub-Class: All Exempt Class
members employed by Defendants in Califomia during the period
16 beginning one year before the filing of the Action and ending when final
ju^nient is entered.
17
Exempt Waiting Time Penalties Sab-Class: All Exempt Class members
18 who separatedfiomtheir onployment widi Defendants during the period
beginnmg three years before the filing of die Action and ending when final
19. ju^ment is entered.
20 Ropndmg Class: All persons employed by Health Net of California, Inc. and
Health Net, Inc. and/or any staffing agencies and/or any other third parties in
21 Califomia whose hours worked were affected by Defendants* rounding practices
dining die Relevant Time Period.
22
UCL Cbas: All Non-Exempt Class, Exempt Class and Rounding Class members
23 employed by Defendants in Califomia during the Relevant Time Period.
24 12. Reservation of Ritdits: Pursuant to Rule of Court 3;76S(b), Plaintiffs reserve the
.25 right to amend or modify the class definitions with greater specificity, by fiirther 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 currentiy know the exact
Spears v. Health Net ofCaltfomia, Inc. ConsoUdated Class Action Complaint
1 number of class members, Plaintiffs are iniformed and believe that the actual number exceeds
2 die minimum required for numerosity under Califomia law.
3 14. Commonality and Predommance: 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 coinmon questions include, but are not limited to:
6 A. Whether Defendants maintained a policy or practice of failing to provide
7 employees with their meal periods;
8 B. Whether Defendants maintained a policy or practice of failmg 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 with required meal and/or rest periods;
12 D. Whether Defendants failed to pay minimum and/or overtime wages to
f"
13
class members as a result of policies that fail to provide meal periods in
14
accordance with Califomia law;
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E. Whether Defendants used payroll formulas that systematically fail to
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account for non-discretionary bonuses and/or other applicable
17
remuneration when calculating regularratesof pay for class members;
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F. Whether Defendants failed to pay overtime wages to class members as a
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result of incorrectly calculating dieir regular rates of pay;
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G. Whether Defendants have failed to pay premium wages to class members
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based on their respective "regularratesof compensation" by not
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uicluding commissions and/or income in calculating theratesat which
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those wages are paid;
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H. Whether Defendants failed to provide class members with accurate
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written wage statements as a result of providing them with written wage
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statements with inaccurate entries for, among other things, amounts of
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gross and net wages, and total hours worked;
28 I. Whether Defendants applied policies or practices that result in late and/or
Spears v. Heallh Net ofCalifomia, Inc Consolidated Class Action Complaint
1 incomplete final wage payments;
2 J. Whether Defendants are liable to class members for waiting time
3 penalties under Labor Code section 203;
4 K. Whedier class members are entitied to restitution of money or property
5 that Defendants may have acquiredfromthem through unfair
6 competition. .
7 15. Typicality; Plaintiffs' claims are typical ofthe 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 odierwise conflict with, the-
13 interests of absent class members and. is dedicated to vigorously prosecuting this action oh their
14 behalf. Plaintiffs will fanly and adequately represent and protect the interests of the other class
15 members.
16 17. Adequacy of Class Coonsel: Plaintiffs' counsel are adequate class counsel in
17 that they have no known conflicts of interest with Plaintififs or absent class members, are
18 experienced in wage and hour class action litigation, and are dedicated to vigorously
19 prosecuting this action on behalf of Plaintififs and absent class members.
20 18. Superiority: A class action is vastly superior to other available means for fair
21 and efficient adjudication of the class members' claims and would be beneficial to the parties
22 and the Court. Class action treatment will allow a number of similarly situated persons to
23 simultaneously and efHcientiy prosecute dieir common claims in a single forum widiout the
24 unnecessary duplication of effort and expense that numerous individual actions would entail. In
25 addition, the monetary amounts due to many individual class members are likely to be relatively
26 small and would thus make it difficult, if not unpossible, for individual class members to both
27 seek and obtain relief. Moreover, a class action will serve an important public interest by
28 permitting class members to effectively pursue Uie recoveiy of moneys owed to them. Furdier,
Spears v. Health Nel of California, Inc. Consolidated Class Action Complaint
1 a class action will prevent the potential for inconsistent or contradictory judgments inherent in
2 individual litigation.
3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
4 19. Plaintifif Arana was hired by Defendants on or about February 25,2008 as a
5 hourly, non-exempt employee who worked at a call center in California.
6 20. On or about November 16,2015, Plaintiff Arana was promoted to a salary,
7 exempt position.
8 21. Plaintifif Spears was hired by Defendants in December of 2013 and worked for
9 Defendants up to October of 2016 as an hourly, non-exempt employee in 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 to first tum
13 on their computer and wait for it to load. It generally took approximately five to ten minutes for
14 it to boot up to the 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
IB to ten minutes for it to complete the entire boot up cycle.
19 24. Occasionally, Plaintififs and the putative class would ^counter login errors or
20 computer crashes that would require them to restart the entire boot up process. The entire time
21 spent booting up the computer would not be accurately recorded and therefore resulted in
22 plaintiffs and the putative class not being paid for all hours worked while waiting for the
23 computer the boot up.
24 25. After the computer successfully booted up, Plaintififs 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 programs, Plaintififs and the putative
27 class would finally log in to a program called "Convergence" which is the program diat is used
28 by all the call center employees for making and receiving customer service calls. It is only upon
Spears v. Health Nel ofCdifornia, Inc Consolidated Class Action Complaint
1 logging into Convergence will an employee be recognized as being "clocked in" by Defendants,
2 which is the time recognized as the actual start time for each workday and when Plaintiffs and
3 the putative class would begin to be paid by Defendants.
4
27. Accordingly, by thetimePlaintififs and the putative class logged into
5 Convergence, fifteen to thuty minutes or more may have already passed - all of which were not
6 property recorded astimeworked and which resulted in Plaintififs and die putative class not
7 beuig paid for all hours worked by Defendants.
8
Clock Out Process
9
28. Sunilarly, upon clocking out for each work shift, Plaintififs and the putative class
LO were required to shutdown their computers by following a sequence of steps. First, they were
LI required to log out of Convergence. Upon logging out of Convergence^ each employee was
12 deemed to be "clocked out," which is the time recognized as the actual end time for each .
13 workday and when Plaintifils and the putative class would stop being paid by Defendants.
L4 29. After logging out of Convergence, Plaintifls and the putative class would then
L5 log out of the other programs they had open during their work shift. After all the programs
L6 were shutdown, they would then shut down the computer.
17 30. Accordingly, after Plaintififs and the putative class logged out of Convergence,
LS they were required to spend approximately five to ten minutes to shut down other programs and
L9 the computer - all of which were not properly recorded as time worked and which resulted in
20 Plaintiffs and the putative class not being paid for all hours worked by Defendants.
21 Misclassification as Exempt Employee
22 31. Plaintiff Arana and die putative Exempt Class were also misclassifled as exempt
23 employees when in fact they were non-exempL Plaintifif 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 a fixed salary regardless of
26 the hours they worked and were not paid any overtime compensation.
27 32. Plaintiff Arana and the putative Exempt Class did not perform duties, more dian
28 fifty percent (50%) of thetime,that would qualify diem as exempt employees under the
Spears v. Health Net ofCalifornia, Inc. Consolidated Class Action Complaint
1 Professional, Executive or Administrative exemptions. Accordingly, Plaintifif 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 ofbeing misdassified as an exempt employee, the time spent by
5 Plaintiff Arana and the putative Exempt Class were not accurately recorded by the timekeeping
6 system utilized by Defendants and therefore resulted in die failure to pay Plaintiff Arana and the
7 putative Exempt Class for all hours actually worked and overtime compensation.
8 Improtier Rounding Practices
9 34. Moreover, beginning January 1,2017, Defendants began to utilize a rounding
10 practice that required Plaintiff and the putative class toroundtheir start times to the next hour.
11 For example, if an employee was scheduled to woik at 9:00 a.m., that employee had a six
12 minute grace period to clock in for their shift by thattime.If this employee attempts to clock in
13 after the expiration ofthe grace period, die employee's starttimewould beroundedto the next
14 hour which would be 10:00 a.m. even though the employee commenced work at 9:10 a.m.
15 35. Plaintififs are mformed and believe, and thereupon allege, that Defendants have
16 not, did not, and do not keep records of actual hours worked by Plaintififs and the putative class.
17 In the absence of records showing actiial hours worked, Plaintififs and the putative class are
18 unable to ascertain whether (1) Defendants'roundingpractices comply with Califomia law; (2)
19 whedier Defendants'roundingpractices resulted over a period of time, in failure to compensate
20 Plaintiff and the putative class properly for all the time they actually woriced; 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 each five (S) hour work period due to (1) Defendants' policy of'
25 not scheduling each meal period as part of each work shift; (2) chronically understaffing each
26 work shift with not enough workers; (3) imposing so much work on each employee such that it
27 made it unlikely that an employee would be able to take their breaks if diey wanted to finish
28 their work on time; and (4) no formal written meal and rest period policy that encouraged
Spears v. Heallh Net of California, Inc Consolidated Class Action Complaint
1 employees to take their meal and rest periods.
2 37. As a result of Defendants' policy, Plamtiffs and the putative class were regularly
3 not provided with uninterrupted meal periods of at least thirty (30) minutes for each five (5)
4 hours worked due to complying with Defendants' productivity requirementstiiatrequned
5 Pjaintif]^ 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) mmutes 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 wOric shift; (2) chronically
1-1 understaffing each work shift with not enough woTkers;-(3) imposing so much work on each
12 employee such that it made it luilikely that an employee would be ablei to tiEike their breaks if
13 they wanted to fmish their work ontime;and (4) no formal written meal and rest period policy
14 that encouraged employees to take their meal and rest periods.
15 ' 39. As a result of Defendants' policy,. Plaintififs and the putative class were regularly
16 not provided with uninterrupted rest periods of at least ten (10) minutes for each four (4) hours
17 worked due to complying with Defendants' productivity requirements that required Plaintiffs
18 and the putative class to woric through their rest periods in order to complete their assignments
19 on time.
20 Regular Rate of Pay
21 40. The regular rate of pay under Califomia law includes all remuneration for
22 employment paid to, on behalf of, the employee. This requirement includes, but is not limited,
23 to, commissions and non-discretionary bonuses.
24 41. During the applicable limitations period. Defendants violated therightsof
25 Plaintififs and the putative class under the above-referenced Labor Code sections by failing to
26 pay them overtune wages for all overtime hours worked in violation of LaborCode §§510,
27 1194, and 1198 as a result of not correctiy calculating their regularrateof pay to mclude all
28 applicable remuneration, including, but not limited to, non-discretionary bonuses and/or shift
Spears v. Heallh Nel of California, Inc. Consolidated Class Action Complaint
1 differential pay.
2 FIRST CAUSE OF ACTION
3 FAILURE TO PROVIDE MEAL PERIODS
4 (Lab. Code §§ 204,223,226.7,512 and 1198)
5 (Plaintifls, Non-Exempt Meal Break Sub-Class, Exempt Meal Break Sub-Class)
6 42. ^ Plaintiffs incorporate the preceding paragraphs of the Complaint as if &lly
7 alleged herein. Specifically, Plaintiffs incorporate paragraphs 11 and 12 of the Complaint as if
8 fiilly alleged herein.
9 43. At all relevant times. Plaintiffs and the Non-Exempt Meal Break Sub-Class and
10 Exempt Meal Break Sub-Class members have been non-exempt employees of Defendants
LI entitled to the full meal period protections of both the Labor Code and the Industrial Welfare
L2 Commission Wage Order 5-2001 ("Wage Order").
L3 44. Labor Code section 512 and section 11 of the applicable Wage Order impose an
L4 affirmative obligation on employers to provide non-exempt employees with uninterrupted, duty-
15 free, meal periods of at least thirty minutes for each work period of five hours, and to provide
L6 them with two uninterrupted, duty-free, meal periods of at least thirty minutes for each woik
L7 period of ten hours..
L8 45. Labor Code section 226.7 and section 11 of the die applicable Wage Order both
19 prohibit employersfiomrequiring employees to woric during required meal periods and require
20 employers to pay non-exempt employees an hour of premium wages on each workday that the
21 employee is not provided with the required meal period.
22 46. Compensation for missed meal periods constitutes Svages within the meaning of
23 the Labor Code section 200.
24 47. LaborCode section II98 makes it imlawful to employ a person under conditions
25 that violate the Wage Order.
26 48. Section 11 of the applicable Wage Order states:
27 "No employer shall employ any person for a work period of more dian five (S) hours
without a meal period of not less than 30 mninutes, except diat when a work fwriod of
28 not more than six (6) hours will complete the day's woric the meal period may be waived
by mutual consent of die employer and employee. Unless die employee is relieved of iall
10
Spears v. Health Nel ofCaltfornia, Inc. Consolidated Gass Action Complaint
1 duty during a 30 minute meal period, die meal period shall be considered an "on duty"
meal period and counted as time worked. An ''on duty" meal period shall be permitted
2 onlv when die natiire of the work prevents an employeefiombeing relieved of all duty
and when by written agreement between the parties an on-the-job paid meal period is
3 agreed to. The written agreement shall state that the employee may, in writing, revoke
die agreement at any tune." 8 Cal. Code Regs. § 11040(11).
4
5 49. At all relevanttimes,Plaintififs were not subject to a valid on-duty meal period
6 agreement Plaintiffs are informed and believe that, at all relevant tunes, Non-Exempt Meal
7 Break Sub-Class and Exempt Meal Break Sub-Class members were not subject to valid on-duty
a meal period agreements with Defendants.
9 50. Plaintiffs allege that, at relevant times during the applicable limitations period.
10 Defendants maintamed a policy or practice of not providing Plaintiffs and members ofthe Non-
11 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class with uninterrupted meal
12 fieriods of at least thirty (30) minutes for each five (S) hour work period, as required by Labor
13 Code section S12 and the applicable Wage Order.
14 51. Plaintiffs allege that at all relevant times during the applicable limitations period
15 and as matters of policy and practice. Defendants have failed to pay premium wages to Non-
16 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class members when they worked
17 five (5) hours without clocking out for any meal period.
18 52. Plaintififs allege that at all relevant times during the applicable limitations period
19 and as matters of policy and practice. Defendants employed Non-Exempt Meal Break Sub-Class
20 and Exempt Meal Break Sub-Class members for shifts often(10) or more hours without .
21 providmg them with second meal periods and vrithout paying them premium wages, as required
22 by Labor Code section 512 and the applicable Wage Order.
23 53. Moreover, Defendants written policies do not provide that employees must take
24 their first meal break before the end ofthe fifth hour of work, that they are entitied to a second
25 meal break if they work a shift of over ten (10) hours, or diat the second meal period must
26 commeiice before die end of thetenthhour of work, unless waived.
27 54. At all relevant times. Defendants failed to pay Plaintiffs and Non-Exempt Meal
28 Break Sub-Class and Exempt Meal Break Sub-Class members additional premium wages,
11
Spears v. Heallh Nel ofCalifornia, Inc. Consolidated Class Action Complaint
1 and/or were not paid premium wages at the employees' regularratesof pay when required meal
2 periods were not provided.
3 55. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintififs, on behalf of
4 themselves and the Non-Exempt Meal Break Sub-Class and Exempt Meal Break Siib-Class
5 members, seek to recover unpaid premium wages, interest thereon, and costs of suit.
6 56.
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FILED 1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com EHDORSEO 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 2018JAH3O PH 3:0I 3 Sacramento, CA 95814-4497 ^^UPFRIuR COURT OF CALlFOij^^lA Telephone: +1 916 447 9200 4 Facsimile: . +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 Soudi Figueroa Stireet, Suite 3200 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 9 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated. 15 Plaintiff, DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF DEFENDANT'S 16 OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER 17 HEALTH NET OF CALIFORNIA, INC., a RESPONSES TO DOCUMENT Califomia Corporation; and Does 1 through 50, REQUESTS AND SPECIAL 18 inclusive. INTERROGATORIES; REQUEST FOR SANCTIONS 19 Defendants. Date: February 13, 2018 20 Time: 9:00 a.m. Judge: Hon. Christopher E. Krueger 21 Dept.: 54 22 Complaint Filed: April 5, 2017 TOMAS R. ARANA, on behalf of himself, all FAC Filed: June 29, 2017 CO 23 others similarly situated. Consolidated Complaint Filed: Dec. 21, 2017 24 Plaintiff, Complaint Filed: August 1, 2017 •\ < 2 25 V. HEALTH NET OF CALIFORNIA, INC., a O 26 Califomia corporation; and DOES 1-50, DC 27 inclusive. O 28 Defendant. SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS 1 1, Stephanie Gail Lee, hereby decleire as follows: 2 1. I am an attomey duly admitted to practice before the courts of the State of Califomia 3 and am an associate in the law firm of Orrick, Herrington & Sutcliffe LLP, attomeys of record for 4 Defendant Health Net of Califomia, Inc. ("Health Net"). I make this declaration on personal 5 knowledge and, if swom as a witness, could competently testify to the following facts except where 6 otherwise indicated. 7 2. On April 5, 2017, Plaintiff Andrea Spears filed her putative wage-and-hour class 8 action Complaint against Health Net, piuporting to represent all ciurent 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 Attomeys 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 ciurent and former non-exempt 14 employees of Health Net, among others, and a subcleiss 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, Plaintiffs filed a 17 Consolidated Complaint. Attached hereto as Exhibit A is a true and correct copy of Plaintiffs' 18 Consolidated Complaint. 19 5. Health Net filed its Answer to the Consolidated Complaint on January 22,2018, and 20 anticipates filing a dispositive motion as to Plaintiffs' regular rate and rounding claims. 21 6. Both Plaintiffs have propounded written discovery on Health Net. Plaintiff Spears 22 served her first set of document requests document requests, special interrogatories, employment 23 law form interrogatories, and admission requests on July 25, 2017. Attached hereto as Exhibit B 24 is a tme and correct copy of Plaintiff Spears'sfirstset of document requests to Health Net. Attached 25 hereto as Exhibit C is a tme and correct copy of Plaintiff Spears'sfirstset of special interrogatories 26 to Health Net. 27 28 -1 - SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS 1 7. Plaintiff Arana served his first and second sets of special interrogatories and first 2 sets of document requests, employment law form interrogatories, and admission requests on 3 September 19,2017. 4 8. On September 12,2017, Health Net timely served responses its responses to Plaintiff 5 Spears' first sets of special interrogatories and document requests and produced responsive 6 documents two days later. Attached hereto as Exhibit D is a true and correct copy of Health Net's 7 responses to Plaintiff Spears'sfirstset of document requests. Attached hereto as Exhibit E is a true 8 and correct copy of Health Net's responses to Plaintiff Spears's first set of special interrogatories. 9 9. On October 17, 2017,1 sent an e-mail to Victoria Rivapalacio, counsel for Plaintiff 10 Spears, and Shaun Setareh, counsel for Plaintiff Arana, requesting that all parties' counsel 11 collectively discuss written discovery and specifically. Plaintiff Spears' proposed Belaire-West 12 notice in light of the Court's consolidation order. During our ensuing October 24-25, 2017 meet 13 and confer over the telephone and e-mail, Ms. Rivapalacio, Mr. Setareh and I agreed to raise the 14 issue of phasing discovery at the December 8, 2017 initial case management conference ("CMC") 15 and Health Net agreed that it would provide class certification-related discovery in the interim. The 16 parties did not discuss the specifics of any particular discovery request, and Health Net granted 17 Plaintiff Spears an extension to file any motion to compel on any outstanding discovery until after 18 the CMC so that Plaintiff Spears would not be prejudiced. Attached hereto as Exhibit F is a tme 19 and correct copy of my October 24-25, 2017 e-mail correspondence with Ms. Rivapalacio and Mr. 20 Setareh. 21 10. On November 9, 2017, I provided Ms. Rivapalacio and Mr. Setareh with Health 22 Net's suggested revisions to Plaintiff Spears' draft Belaire-West Notice (the "Notice") via e-mail. 23 In my e-mail, 1 invited Ms. Rivapalacio and Mr. Setareh to continue to meet and confer over the 24 contents of the Notice. Attached hereto as Exhibit G is a true and correct copy of my November 9, 25 2017 e-mail to Ms. Rivapalacio and Mr. Setareh. 26 11. Notwithstanding my meet and confer efforts to resolve the issue conceming the 27 contents of the Notice, including to whom it should be issued, Ms. Rivapalacio stated in e-mail, "If 28 -2- SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS 1 it turns out the class is broader than the category as we have identified it, we will revisit the mailing 2 at that time. The motion is attached." Plaintiff Spearsfiledher Motion for Opt-Out Privacy Notice 3 to Be Sent to Putative Class Members ("BW Motion") on November 16, 2017. Attached hereto as 4 Exhibit H is a true and correct copy of my November 9-16, 2017 e-mail exchange with Ms, 5 Rivapalacio without the attachment. 6 12. On November 24, 2017, 1 e-mailed a stipulation and proposed protective order to 7 Ms. Rivapalacio and Mr. Setareh in anticipation that it would govem the parties' exchange of 8 confidential documents and information. Attached hereto as Exhibit I is a tme and correct copy of 9 my November 24, 2017 e-mail to Ms. Rivapalacio and Mr. Setareh without the attachment. 10 13. On December 1, 2017, Plaintiff Spears filed her first motion to compel further 11 responses to her requests for production, set one, and oh December 6, filed another motion to 12 compel fiarther responses to her special interrogatories, set one (collectively, "Discovery Motions"). 13 Attached hereto as Exhibit J is a tme and correct copy of Plaintiff Spears's first motion to compel 14 further responses to her requests for production, set one. Attached hereto as Exhibit K is a tme and 15 correct copy of Plaintiff Spears's first motion to compel further responses to her special 16 interrogatories, set one. 17 14. On December 6 and 7,2017, Health Net served its supplemental discovery responses 18 and documents to Plaintiff Spears, and agreed to produce additional documents once an appropriate 19 protective order was in place. Attached hereto as Exhibit L is a true and correct copy of Health 20 Net's December 6,2017 supplemental responses to Plaintiff Spears' sfirstset of document requests. 21 ' 15,^ 1 attended the December 8, 2017 CMC before Judge Perkins. During this CMC, 22 Judge Perkins set February 15, 2018 as the hearing date for Health Net's motion to sequence 23 discovery. Attached hereto as Exhibit M is a tme and correct copy of the Court's minute order 24 regardingtheDecember 8,2017CMC. 25 16. On the afternoon of December 8,2017,1, e-mailed Ms. Rivapalacio and Mr. Setareh 26 requesting that Plaintiff Spears continue the hearing dates on her pending Discovery Motions until 27 after Judge Perkins mled on the sequencing motion. Many of the issues raised by Plaintiff Spears's 28 3- SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS 1 Discovery Motions would overlap with Health Net's then-forthcoming motion to sequence. Ms. 2 Rivapalacio did not respond to my request. Attached hereto as Exhibit N is a tme and correct copy 3 of my December 8, 2017 e-mail correspondence to Ms. Rivapalacio and Mr. Setareh. 4 17. On December 15, 2017, I received an e-mail from Ms. Rivapalacio attaching her 5 and Plaintiff Arana's counsel's signatiore on the proposed protective order. Attached hereto as 6 Exhibit 0 is a true and correct copy of the December 15, 2017 e-mail I received from Ms. 7 Rivapalacio without the attachments. 8 18. On December 19, 2017, my office served Health Net's supplemental document 9 production pursuant to the parties' protective order. Attached hereto as Exhibit P is a true and 10 correct copy ofthe proof of service for Health Net's supplemental production. 11 19. The Court mled on Plaintiff Spears' BW Motion on December 15, 2017, continuing 12 the hearing to January 4,2018, and ordering the parties to further meet and confer and "remind[ing] 13 all counsel but especially [Plaintiff Spears'] that given the number of motions such as this which 14 must be addressed on a daily basis, there are simply not enough judicial resources available to 15 resolve each and every discovery dispute that could have and should have been resolved 16 informally." Attached hereto as Exhibit Q is a tme and correct copy of the Court's December 15, 17 2017 Order on Plaintiff Spears' BW Motion. 18 20. After the Court's admonitions. Plaintiff Spears withdrew her discovery motions at 19 counsel for Health Net's request. Further, Health Net continued both Plaintiffs' respective 20 deadlines to bring motions to compel further responses to their written discovery until March 1, 21 2018 - two weeks after Health Net anticipates receiving a mling on its Motion to Sequence 22 Discovery. Attached hereto as Exhibit R is a tme and correct copy of my December 18-19, 2017 23 e-mail correspondence with Ms. Rivapalacio without the attachments. Attached hereto as Exhibit 24 S is a tme and correct copy of my January 8, 2017 e-mail correspondence to Stacey Shim, Mr. 25 Setareh's colleague. 26 27 28 -4- SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS 1 21. On January 23,2018, Health Net filed its Motion to Sequence Discovery. Attached 2 hereto as Exhibit T is a tme and correct copy of Health Net's Memorandum of Points and 3 Authorities in support of its Motion to Sequence. 4 22. Despite the Motion to Sequence and Health Net's extending her deadline to file 5 these Discovery Motions, Plaintiff Spearsfiledthese two Motions to Compel Discovery which are 6 set to be heard on February 13, 2018 - before Judge Perkins will hear Health Net's Motion to 7 Sequence. 8 23. After Plaintiff Spears's filing, I requested that she withdraw her motions, and 9 likewise informed her that if she did not do so, Health Net would have no choice but to seek 10 sanctions. I also reconfirmed that Health Net had given her a two week extension of time to file 11 any motion to compel after Judge Perkins ruled on the Motion to Sequence. Plaintiff Spears refused 12 Health Net's request to withdraw her motions. Attached hereto as Exhibit U is a tme and correct 13 copy of the e-mails exchanged between myself and Ms. Rivapalacio. 14 24. In total. Health Net has produced more than 2,600 pages of discovery and 21,880 15 lines of data in Microsoft Excel sheets related to Plaintiffs' personal claims, class certification and 16 the merits of Plaintiffs' regular rate and rounding claims. And, absent unforeseen circumstances, 17 Health Net anticipates that it will be able to provide putative class members' contact information 18 to the Belaire- West administrator before hearing on these motions. 19 25. Attached hereto as Exhibit Visa true and correct copy of the Declaration of Chrissy 20 Schneider In Support of Defendant's Motion to Sequence Discovery. 21 26. On December 20,2017,1 spoke over the telephone with Ms. Rivapalacio to discuss, 22 among other things, Plaintiff Spears's Special Interrogatory No. 14. I communicated Health Net's 23 position that Plaintiff Spears's request for "all forms of compensation" the non-exempt putative 24 class members were "eligible to receive[]" was vague and ambiguous. In response, Ms. 25 Rivapalacio communicated that Plaintiff Spears actually seeks their pay codes and a description of 26 such pay codes (her Special Interrogatory Nos. 11-12). Attached hereto as Exhibit W is a tme and 27 28 -5- • SGL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS 1 correct copy of my December 20, 2017 e-mail correspondence to Ms. Rivapalacio memorializing 2 our conversation wdthout the attachment. 3 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing 4 is tme and correct. Executed this 30th day of January, 2018. 5 6 STEPHANIE GAIL LEE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SQL DEC ISO DEFENDANT'S OPPOSITIONS TO PLAINTIFF'S MOTIONS TO COMPEL FURTHER RESPONSES; REQUEST FOR SANCTIONS EXHIBIT A BLUMENTHAL, NORDREHAUG & BHOWMIK LLP Norman Blumendial (SBN 068687) nomi@bamIawca.com 2255 Calle Clani La Jolla, CA 92037 Tel:. 858.55 M223 Fax: 858,551.1232 Attomeys for Plaintiff ANDREA SPEARS SETAREH LAW GROUP Shaun Setareh tSBN 204S14) 5haun@setaienlaw.coin H. Scott Leviant (SBN 200834) scott@setarehlaw.com 94S4 Wilshire Boulevard, Suite 907 Beverly Hills, Califomia 90212 10 Telephone (310) 888-7771 Facsimile (310) 888-0109 11 Attorneys for Plaintiff 12 TOMAS R. ARANA 13 SUPERIOR COURT OF THE STATE OF CALIFORNU 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 ahd on behalf of all persons n similarly situated. Assigned For All Purposes to the Honorable Alan G. Peridns, Department 3S 18 Plaintiff, Amended As a Matter of Right Pursuant to 19 Ubor Code Section 2699.3^)(2)(C) 20 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 through CLASS ACTION y 21 SO, 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. . Failure to Pay Hourly Wages(Lab. (! Code §§ 223.510, 1194,11942,1197,1997.1, 25 Plaintiff, and 1198); 4. Failure to Provide Accurate Written Wage 26 Statements (Lab. Code § 226(a)); vs. 5. Failure to Timely Pay All Final Wages 27 28 HEALTH NET OF CALIFORNL\, INC., a Califomia corporation; and DOES I through g ,ab. Code §§ 201-203); nfair Competition (Bus. & Prof. Code §§ 50, inclusive, 17200, £r/jgg.); 7. Civ. Penalties (Lab. Code §§ 2698, etseq.) npf/mdants JURY TRIAL DEMANDED Spears v. Heallh Net cf California, Inc. C(»isolidated Class Action Compiaint 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 and representative action against defendant Health Net 5 of California, Inc., a Califomia corporation (referred to as "Health Net") and Does 1 through 50, 6 inclusive (collectively referred to 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 with rest periods, failed to pay premium wages for missed meal and/or rest periods, failed 10 to pay them for all hours worked, failed to pay overtime wages at the correctrate,failed to pay 11 doubletimewages at the correctrate,failed to provide diem with accurate written wage 12 Statements, and failed totimelypay them all of theirfinalwages following separation of 13 employment Plaintiff Arana also alleges that Defendants misdassified him and all similarly 14 situated individuals as exempt employees when they were, in fact, non-exempt employees who 15 were entitled to meal and rest periods and overtime compensation. Based on these alleged 16 violations. Plaintiffs now bring this class and representative action to recover unpaid wages, 17 riBstitution, and related relief on behalf of themselves, all others similarly.situated, and the IB general public. 19 JURISDICTION AND VENUE 20 2. This Court has subject matter jurisdiction to hear this case because Plaintififs are 21 infomied and believe, and based thereon allege, that the monetaiy damages and restitution sought 22 herein for Defendants' conduct exceeds die minimal jurisdictional limits of the 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 occuned therein and/or each defendant is 26 found, maintains offices, transacts business, and/or has an agent therein. 27 /// 28 III Spears v. Health Net of California, Inc. Consolidated Class Action Complaint 1 PARTIES 2 5. Defendant Health Net of California, Inc. is a California corporation authorized to 3 do business in Califomia. 4 6. Plaintiffs are ignorant of the tme names, capacities, relationships, and extent of 3 participation in the conduct alleged herein, ofthe defendants sued as Does I through SO, 6 inclusive, but are informed and believe that said defendants are legally responsible for the 7 conduct alleged herein and therefore sues these defendants by suchfictitiousnames. Plaintiffs 8 will amend this complaint to allege both the tme names and capacities ofthe 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 ofthe 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 the readily ascertainable classes defined below and because 18 Plaintiffs are unaware of any difficulties likely to be encountered in managing diis case as a 19 class action. 20 9. Action; The Action is defined as the suit fded on April 5,2017 with 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: The relevanttimeperiod is defined as the time period 24 beginning four years prior to the filing of the Action until judgment is entered. 25 11. The class and sub-class members are defined as follows: 26 27 Shourly on-Exemirt Class: AH persons employed by Healdi Net of California Inc. and ealth Net, Inc. and/or any staffing agencies and/or any other third parties in or non-exempt positions in Califomia during the Relevant Tune Period. 28 Non-Exemnt Meal Period Sub-Clasa: All Non-Exempt Class members who worked a shift in excess of five hours during the Relevant Time Spears v. Health Nel ofCalifornia, Inc. ConsoUdated Class Action Complaint Period. Non-Exempt Rwt Period Sub-Class: All Non-Exempt Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period. Non-Exempt Wage Statement Penalties Sub-Class: All Non-Exempt Class members employed bv Defendants in Califomia during the period ^ begiiming one year before vie filing of the Action and ending when final judgment is entered. Non-Exempt Waiting Time Penalties Sub-Class: Alt Non-Exempt Class members who separated trom their emplovment with Defendants during the period beginning three years before die filing of the Action and a ending when final judgment is entered. 9 Exempt Class: All persons employed by Health Net of Califomia, Inc. and Health NfSt, Inc. and/or any stafiing 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 Sub-Class: All Exempt Class members who 12 worked a shift in excess of five hours during the Relevant Time Period. 13 Exempt Rest Period Snb-Class: AU Exempt Class members Avho worked a shift of at least three and one-half (3.5) hours during the 14 Relevant Time Period. 15 Exempt Wage Statement Penaltica Sub-Class: All Exempt Class members employed by Defendants in Califomia during the period 16 beginning one year before the filing of the Action and ending when final ju^nient is entered. 17 Exempt Waiting Time Penalties Sab-Class: All Exempt Class members 18 who separatedfiomtheir onployment widi Defendants during the period beginnmg three years before the filing of die Action and ending when final 19. ju^ment is entered. 20 Ropndmg Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. and/or any staffing agencies and/or any other third parties in 21 Califomia whose hours worked were affected by Defendants* rounding practices dining die Relevant Time Period. 22 UCL Cbas: All Non-Exempt Class, Exempt Class and Rounding Class members 23 employed by Defendants in Califomia during the Relevant Time Period. 24 12. Reservation of Ritdits: Pursuant to Rule of Court 3;76S(b), Plaintiffs reserve the .25 right to amend or modify the class definitions with greater specificity, by fiirther 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 currentiy know the exact Spears v. Health Net ofCaltfomia, Inc. ConsoUdated Class Action Complaint 1 number of class members, Plaintiffs are iniformed and believe that the actual number exceeds 2 die minimum required for numerosity under Califomia law. 3 14. Commonality and Predommance: 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 coinmon questions include, but are not limited to: 6 A. Whether Defendants maintained a policy or practice of failing to provide 7 employees with their meal periods; 8 B. Whether Defendants maintained a policy or practice of failmg 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 with required meal and/or rest periods; 12 D. Whether Defendants failed to pay minimum and/or overtime wages to f" 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 calculating regularratesof pay for class members; 18 F. Whether Defendants failed to pay overtime wages to class members as a 19 result of incorrectly calculating dieir regular rates of pay; 20 G. Whether Defendants have failed to pay premium wages to class members 21 based on their respective "regularratesof compensation" by not 22 uicluding 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 a result of providing them with written wage 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. Heallh Net ofCalifomia, Inc Consolidated Class Action Complaint 1 incomplete final wage payments; 2 J. Whether Defendants are liable to class members for waiting time 3 penalties under Labor Code section 203; 4 K. Whedier class members are entitied to restitution of money or property 5 that Defendants may have acquiredfromthem through unfair 6 competition. . 7 15. Typicality; Plaintiffs' claims are typical ofthe 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 odierwise conflict with, the- 13 interests of absent class members and. is dedicated to vigorously prosecuting this action oh their 14 behalf. Plaintiffs will fanly and adequately represent and protect the interests of the other class 15 members. 16 17. Adequacy of Class Coonsel: Plaintiffs' counsel are adequate class counsel in 17 that they have no known conflicts of interest with Plaintififs or absent class members, are 18 experienced in wage and hour class action litigation, and are dedicated to vigorously 19 prosecuting this action on behalf of Plaintififs and absent class members. 20 18. Superiority: A class action is vastly superior to other available means for fair 21 and efficient adjudication of the class members' claims and would be beneficial to the parties 22 and the Court. Class action treatment will allow a number of similarly situated persons to 23 simultaneously and efHcientiy prosecute dieir common claims in a single forum widiout the 24 unnecessary duplication of effort and expense that numerous individual actions would entail. In 25 addition, the monetary amounts due to many individual class members are likely to be relatively 26 small and would thus make it difficult, if not unpossible, for individual class members to both 27 seek and obtain relief. Moreover, a class action will serve an important public interest by 28 permitting class members to effectively pursue Uie recoveiy of moneys owed to them. Furdier, Spears v. Health Nel of California, Inc. Consolidated Class Action Complaint 1 a class action will prevent the potential for inconsistent or contradictory judgments inherent in 2 individual litigation. 3 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 4 19. Plaintifif Arana was hired by Defendants on or about February 25,2008 as a 5 hourly, non-exempt employee who worked at a call center in California. 6 20. On or about November 16,2015, Plaintiff Arana was promoted to a salary, 7 exempt position. 8 21. Plaintifif Spears was hired by Defendants in December of 2013 and worked for 9 Defendants up to October of 2016 as an hourly, non-exempt employee in 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 to first tum 13 on their computer and wait for it to load. It generally took approximately five to ten minutes for 14 it to boot up to the 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 IB to ten minutes for it to complete the entire boot up cycle. 19 24. Occasionally, Plaintififs and the putative class would ^counter login errors or 20 computer crashes that would require them to restart the entire boot up process. The entire time 21 spent booting up the computer would not be accurately recorded and therefore resulted in 22 plaintiffs and the putative class not being paid for all hours worked while waiting for the 23 computer the boot up. 24 25. After the computer successfully booted up, Plaintififs 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 programs, Plaintififs and the putative 27 class would finally log in to a program called "Convergence" which is the program diat is used 28 by all the call center employees for making and receiving customer service calls. It is only upon Spears v. Health Nel ofCdifornia, Inc Consolidated Class Action Complaint 1 logging into Convergence will an employee be recognized as being "clocked in" by Defendants, 2 which is the time recognized as the actual start time for each workday and when Plaintiffs and 3 the putative class would begin to be paid by Defendants. 4 27. Accordingly, by thetimePlaintififs and the putative class logged into 5 Convergence, fifteen to thuty minutes or more may have already passed - all of which were not 6 property recorded astimeworked and which resulted in Plaintififs and die putative class not 7 beuig paid for all hours worked by Defendants. 8 Clock Out Process 9 28. Sunilarly, upon clocking out for each work shift, Plaintififs and the putative class LO were required to shutdown their computers by following a sequence of steps. First, they were LI required to log out of Convergence. Upon logging out of Convergence^ each employee was 12 deemed to be "clocked out," which is the time recognized as the actual end time for each . 13 workday and when Plaintifils and the putative class would stop being paid by Defendants. L4 29. After logging out of Convergence, Plaintifls and the putative class would then L5 log out of the other programs they had open during their work shift. After all the programs L6 were shutdown, they would then shut down the computer. 17 30. Accordingly, after Plaintififs and the putative class logged out of Convergence, LS they were required to spend approximately five to ten minutes to shut down other programs and L9 the computer - all of which were not properly recorded as time worked and which resulted in 20 Plaintiffs and the putative class not being paid for all hours worked by Defendants. 21 Misclassification as Exempt Employee 22 31. Plaintiff Arana and die putative Exempt Class were also misclassifled as exempt 23 employees when in fact they were non-exempL Plaintifif 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 a fixed salary regardless of 26 the hours they worked and were not paid any overtime compensation. 27 32. Plaintiff Arana and the putative Exempt Class did not perform duties, more dian 28 fifty percent (50%) of thetime,that would qualify diem as exempt employees under the Spears v. Health Net ofCalifornia, Inc. Consolidated Class Action Complaint 1 Professional, Executive or Administrative exemptions. Accordingly, Plaintifif 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 ofbeing misdassified as an exempt employee, the time spent by 5 Plaintiff Arana and the putative Exempt Class were not accurately recorded by the timekeeping 6 system utilized by Defendants and therefore resulted in die failure to pay Plaintiff Arana and the 7 putative Exempt Class for all hours actually worked and overtime compensation. 8 Improtier Rounding Practices 9 34. Moreover, beginning January 1,2017, Defendants began to utilize a rounding 10 practice that required Plaintiff and the putative class toroundtheir start times to the next hour. 11 For example, if an employee was scheduled to woik at 9:00 a.m., that employee had a six 12 minute grace period to clock in for their shift by thattime.If this employee attempts to clock in 13 after the expiration ofthe grace period, die employee's starttimewould beroundedto the next 14 hour which would be 10:00 a.m. even though the employee commenced work at 9:10 a.m. 15 35. Plaintififs are mformed and believe, and thereupon allege, that Defendants have 16 not, did not, and do not keep records of actual hours worked by Plaintififs and the putative class. 17 In the absence of records showing actiial hours worked, Plaintififs and the putative class are 18 unable to ascertain whether (1) Defendants'roundingpractices comply with Califomia law; (2) 19 whedier Defendants'roundingpractices resulted over a period of time, in failure to compensate 20 Plaintiff and the putative class properly for all the time they actually woriced; 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 each five (S) hour work period due to (1) Defendants' policy of' 25 not scheduling each meal period as part of each work shift; (2) chronically understaffing each 26 work shift with not enough workers; (3) imposing so much work on each employee such that it 27 made it unlikely that an employee would be able to take their breaks if diey wanted to finish 28 their work on time; and (4) no formal written meal and rest period policy that encouraged Spears v. Heallh Net of California, Inc Consolidated Class Action Complaint 1 employees to take their meal and rest periods. 2 37. As a result of Defendants' policy, Plamtiffs and the putative class were regularly 3 not provided with uninterrupted meal periods of at least thirty (30) minutes for each five (5) 4 hours worked due to complying with Defendants' productivity requirementstiiatrequned 5 Pjaintif]^ 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) mmutes 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 wOric shift; (2) chronically 1-1 understaffing each work shift with not enough woTkers;-(3) imposing so much work on each 12 employee such that it made it luilikely that an employee would be ablei to tiEike their breaks if 13 they wanted to fmish their work ontime;and (4) no formal written meal and rest period policy 14 that encouraged employees to take their meal and rest periods. 15 ' 39. As a result of Defendants' policy,. Plaintififs and the putative class were regularly 16 not provided with uninterrupted rest periods of at least ten (10) minutes for each four (4) hours 17 worked due to complying with Defendants' productivity requirements that required Plaintiffs 18 and the putative class to woric through their rest periods in order to complete their assignments 19 on time. 20 Regular Rate of Pay 21 40. The regular rate of pay under Califomia law includes all remuneration for 22 employment paid to, on behalf of, the employee. This requirement includes, but is not limited, 23 to, commissions and non-discretionary bonuses. 24 41. During the applicable limitations period. Defendants violated therightsof 25 Plaintififs and the putative class under the above-referenced Labor Code sections by failing to 26 pay them overtune wages for all overtime hours worked in violation of LaborCode §§510, 27 1194, and 1198 as a result of not correctiy calculating their regularrateof pay to mclude all 28 applicable remuneration, including, but not limited to, non-discretionary bonuses and/or shift Spears v. Heallh Nel of California, Inc. Consolidated Class Action Complaint 1 differential pay. 2 FIRST CAUSE OF ACTION 3 FAILURE TO PROVIDE MEAL PERIODS 4 (Lab. Code §§ 204,223,226.7,512 and 1198) 5 (Plaintifls, Non-Exempt Meal Break Sub-Class, Exempt Meal Break Sub-Class) 6 42. ^ Plaintiffs incorporate the preceding paragraphs of the Complaint as if &lly 7 alleged herein. Specifically, Plaintiffs incorporate paragraphs 11 and 12 of the Complaint as if 8 fiilly alleged herein. 9 43. At all relevant times. Plaintiffs and the Non-Exempt Meal Break Sub-Class and 10 Exempt Meal Break Sub-Class members have been non-exempt employees of Defendants LI entitled to the full meal period protections of both the Labor Code and the Industrial Welfare L2 Commission Wage Order 5-2001 ("Wage Order"). L3 44. Labor Code section 512 and section 11 of the applicable Wage Order impose an L4 affirmative obligation on employers to provide non-exempt employees with uninterrupted, duty- 15 free, meal periods of at least thirty minutes for each work period of five hours, and to provide L6 them with two uninterrupted, duty-free, meal periods of at least thirty minutes for each woik L7 period of ten hours.. L8 45. Labor Code section 226.7 and section 11 of the die applicable Wage Order both 19 prohibit employersfiomrequiring employees to woric during required meal periods and require 20 employers to pay non-exempt employees an hour of premium wages on each workday that the 21 employee is not provided with the required meal period. 22 46. Compensation for missed meal periods constitutes Svages within the meaning of 23 the Labor Code section 200. 24 47. LaborCode section II98 makes it imlawful to employ a person under conditions 25 that violate the Wage Order. 26 48. Section 11 of the applicable Wage Order states: 27 "No employer shall employ any person for a work period of more dian five (S) hours without a meal period of not less than 30 mninutes, except diat when a work fwriod of 28 not more than six (6) hours will complete the day's woric the meal period may be waived by mutual consent of die employer and employee. Unless die employee is relieved of iall 10 Spears v. Health Nel ofCaltfornia, Inc. Consolidated Gass Action Complaint 1 duty during a 30 minute meal period, die meal period shall be considered an "on duty" meal period and counted as time worked. An ''on duty" meal period shall be permitted 2 onlv when die natiire of the work prevents an employeefiombeing relieved of all duty and when by written agreement between the parties an on-the-job paid meal period is 3 agreed to. The written agreement shall state that the employee may, in writing, revoke die agreement at any tune." 8 Cal. Code Regs. § 11040(11). 4 5 49. At all relevanttimes,Plaintififs were not subject to a valid on-duty meal period 6 agreement Plaintiffs are informed and believe that, at all relevant tunes, Non-Exempt Meal 7 Break Sub-Class and Exempt Meal Break Sub-Class members were not subject to valid on-duty a meal period agreements with Defendants. 9 50. Plaintiffs allege that, at relevant times during the applicable limitations period. 10 Defendants maintamed a policy or practice of not providing Plaintiffs and members ofthe Non- 11 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class with uninterrupted meal 12 fieriods of at least thirty (30) minutes for each five (S) hour work period, as required by Labor 13 Code section S12 and the applicable Wage Order. 14 51. Plaintiffs allege that at all relevant times during the applicable limitations period 15 and as matters of policy and practice. Defendants have failed to pay premium wages to Non- 16 Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Class members when they worked 17 five (5) hours without clocking out for any meal period. 18 52. Plaintififs allege that at all relevant times during the applicable limitations period 19 and as matters of policy and practice. Defendants employed Non-Exempt Meal Break Sub-Class 20 and Exempt Meal Break Sub-Class members for shifts often(10) or more hours without . 21 providmg them with second meal periods and vrithout paying them premium wages, as required 22 by Labor Code section 512 and the applicable Wage Order. 23 53. Moreover, Defendants written policies do not provide that employees must take 24 their first meal break before the end ofthe fifth hour of work, that they are entitied to a second 25 meal break if they work a shift of over ten (10) hours, or diat the second meal period must 26 commeiice before die end of thetenthhour of work, unless waived. 27 54. At all relevant times. Defendants failed to pay Plaintiffs and Non-Exempt Meal 28 Break Sub-Class and Exempt Meal Break Sub-Class members additional premium wages, 11 Spears v. Heallh Nel ofCalifornia, Inc. Consolidated Class Action Complaint 1 and/or were not paid premium wages at the employees' regularratesof pay when required meal 2 periods were not provided. 3 55. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintififs, on behalf of 4 themselves and the Non-Exempt Meal Break Sub-Class and Exempt Meal Break Siib-Class 5 members, seek to recover unpaid premium wages, interest thereon, and costs of suit. 6 56.