Preview
ENDORSED
1 BLUMENTHAL NORDREHAUG BHOWMIKDE BLOUW L L P
Nornian B. Blumenthal (State Bar #068687) 2018H.^R Ik PH 3:h2
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Victoria B. Rivapalacio (State Bar #275115)
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858)551-1232
6 Attorneys for Plaintiff
7
8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
12
13
ANDREA SPEARS an individual, on Case No. 34-2017-00210560-CU-OE-GDS
14 behalf of herself and on behalf of all
persons similarly situated, CLASS ACTION
15
16 Plaintiff, PLAINTIFF ANDREA SPEARS'S
OPPOSITION TO DEFENDANT'S
17 vs. MOTION FOR MONETARY
SANCTIONS; DECLARATION OF
18 HEALTH NET OF CALIFORNIA, VICTORIA B. RTVAPALACIO IN
INC., a California Corporation; and SUPPORT r-^^^ „
19 Does 1 through 50, Inclusive,
Telephone Appearance
20 Defendants.
Hearing Date: March 27, 2018
21 Hearing Time: 9:00 a.m.
TOMAS R. ARAN A, on behalf of Judge: Hon. Alan G. Perkins
22 himself, all others similarly situated. Dept.: 54
23 Plaintiff, Action Filed: April 5, 2017
24 vs.
25 HEALTH NET OF CALIFORNIA,
INC., a California corporation; and
26 DOES 1 through 50, inclusive.
27 Defendants.
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
CASE No. 34-2017-00210560
1 I. INTRODUCTION
2 Defendant's Motion for Sanctions must be denied. The Court has ruled that Plaintiff s positions
3 taken in Plaintiffs discovery motions were substantially justified. Further, the record is clear that both sets
4 of motions to compel were made after exhaustive good faith meet and confer efforts. The imposition of such
5 sanctions would, therefore, be unjust especially because imposing them would reward Defendant's counsel's
6 disingenuous use of the meet and confer rules to delay and game the system so that Defendant's Motion for
7 Summary Adjudication ("MSA") could be heard before Plaintiff could obtain the discovery required to
8 oppose the motion.
9 The Court's order denying Defendant's Motion to Sequence Discovery ruled that "the issues of
10 burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in
11 detailed discovery motions (motions to compel, motions for protective order) than by a broad stay on
12 virtually all discovery without the detailed substance necessary to assess such issues." Order on Mot.
13 to Sequence, ROA #132, p. 2 (March 9,2018).' Plaintiffs discovery motions at issue in Defendant's Motion
14 for Sanctions were justified by this rationale and Plaintiffsfirstset of motions to compel was also justified
15 because the filing of the motions was the only reason Defendant later produced the discovery sought by the
16 motions.
17 Plaintiff sought discovery through the motions that is not "merits" discovery, but, rather, is the
18 evidence that California Courts routinely scrutinize in order to assess whether common questions
19 predominate, w^iether the class representative's claims are typical of those of the class, whether the action
20 will be manageable at trial as a class action, and vAiether the class members are ascertainable, all of which
21 are requirements for certification. Plaintiff has consistently maintained that the discovery in dispute is
22 discovery relevant to certification. Based on this, there was never a reason to delay its production until a
23 after ruling on Defendant's Motion to Sequence was issued, which is why Plaintiff filed motions to compel
24 its production, regardless of Defendant's progress on its own Motion to Sequence Discovery. As confirmed
25 by the Court Order, Plaintiff was substantially justified in bringing the motions to compel.
26 Further, Defendant misunderstands the purpose of the Discovery Act. Parties are required to meet
27
28
' Emphasis added unless otherwise indicated.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
1 CASE No. 34-2017-00210560
1 and confer prior to filing motions so as to make a good faith attempt to resolve or refine any issues that may
2 not require court intervention. Defendant's motion for sanctions is belied by Defendant's admission that the
3 Parties, here, have met and conferred so extensively and exhaustively that the issues are "crystallized and
4 understood." (Declaration of VictoriaB. Rivapalacio ("R. Decl."), Ex. 10.) As a result. Defendant's position
5 that the Parties have not sufficient met and conferred is purely tactical. There is, therefore, no doubt that the
6 purpose of the meet and confer requirement was accomplished: explanation, evaluation, and good faith
7 attempts made to resolve any issues that have the potential for resolution.
8 As this Court can see by Defendant's filing of a second motion to sequence discovery and the filing
9 of a MSA, Defendant's tactics were at all times to rush Defendant's filings to the front of the line. The
10 discover of classwide payroll data Defendant claims Plaintiff should be punished for seeking is actually the
11 same information Defendant unilaterally gathered and used for Defendant's own benefit in filing the MSA.
12 Because Plaintiff agreed to Defendant's proposal to withdraw the second motions to compel, Plaintiff now
13 is disadvantaged by not having this data to review that Defendant is relying on to move for summary
14 adjudication against Plaintiff
15 Plaintiffs motions sought discovery that Judge Perkins agreed was reasonably sought for this
16 litigation. Further, the discovery also sought dataDefendant is now able to use unilaterally against Plaintiff
17 For these reasons, Plaintiffs motions were clearly good faith attempts to prosecute this wage and hour class
18 and representative PAGA action under duties Plaintiffs counsel owes to the class of employees and to the
19 State of California On these grounds, Defendant's motion must be denied,
20
21 II. STATEMENT OF FACTS
22 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a
23 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears
24 action withArana v. Health Net of California, Inc., case no. 34-2017-00216685, v*^ich the Court ordered
25 consolidated on October 11, 2017.
26 A. Despite Defendant's Delay Tactics. Plaintiff Has Exhausted Meet and Confer Efforts
27 Plaintiff served her first set of discovery requests on July 25, 2017. (R. Decl. *[[ 3.) After Plaintiff
28 granted Defendant's request for an extension, Defendant served its initial responses on September 12,2017,
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
2 CASE No. 34-2017-00210560
1 and produced its first set of documents on September 14, 2017. {Id.)
2 1. PlaintifFs Belaire Notice Motion and First Set of Motions to Compel
3 On September 21 and 22,2017, Plaintiff sent correspondence to Defendant detailing the deficiencies
4 in Defendant's responses, along with a draft Belaire notice. (R. Decl. T| 4.) Plaintiff"followed up repeatedly
5 through the following month. (R. Decl., Ex. 1.) For the most part, in response to Plaintiffs requests,
6 Defendant offered silence. (Id) When Defendant did respond, it was to kick the can down the road. For
7 example, in response to Plaintiff s request on September 28, 2017, Defendant stated it would get in touch
8 "next week." {Id.) In response to Plaintiffs request on October 4,2017, Defendant stated it would respond
9 "shortly." {Id.) In response to Plaintiffs request on October 10, 2017, Defendant stated it would respond
10 "in the next week or so." {Id.) Defendant onlyfinallymade itself available for a telephonic meet and
11 confer on October 24,2017, over a month after Plaintifffirstrequested to meet and confer regarding
12 the discovery. (R. Decl., Ex. 2.)
13 On October 25, 2017, Plaintiff"provided Defendant with a revised 5e/a/>"e notice based on the meet
14 and confer call and which Plaintiff Arana approved the following day, on October 26, 2017. (R. Decl., EJL.
15 3.) The Parties once again met and conferred telephonically regarding the Belaire notice on October 30,
16 2017. (R. Decl., Ex. 4.) Defendant did not provide its revisions until November 9, 2017. (R. Decl., Ex. 5.)
17 Based on the meet and confer efforts and Defendant's prior delay tactics, Plaintiff determinedfiartherefforts
18 would be fruitless and the dispute would benefit from Court intervention.
19 During the telephonic meet and confer on October 24, 2017, Defendant maintained two different
20 positions in regard to the various deficient responses: 1) Defendant agreed that the responses were deficient
21 and promised to remedy the deficiencies through supplemental responses, but would "not provide a timeline
22 as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought was "merits"
23 discovery and stated it would not produce it without Court intervention. (R Decl., Ex. 2.^ Notably,
24 Defendant did assert that it would willingly produce even that discovery it considered "merits" if the Court
25 declined to sequence discovery. (R. Decl. H 6.)
26 The Parties exchanged dozens of email correspondence and conferred telephonically but, over a
27 month later, Defendant had still yet to provide supplemental responses, produce documents, or provide a
28 date certain as to the anticipated production. (R Decl. ^ 8.) Further, in that interim, no further ground was
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS •
3 CASE No. 34-2017-00210560 '
1 gained in regard to the discovery that was undeniably in dispute, that Defendant outright refused to produce
2 without a Court order. {Id.) Plaintiff, therefore, was forced to file the first set of motions to compel on
3 December 1, 2017. Defendant sei-ved the supplemental responses on December 6 and 7, 2017, six (6)
4 weeks after the initial meet and confer and only after Plaintiff was forced to incur the fees and costs
5 associated with the discovery motions. {Id.)
6 2. PlaintifFs Second Set of Motions to Compel Further Responses
7 Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly and
8 exhaustively meet and confer. Plaintiff sought to meet and confer with Defendant again after withdrawing,
9 per Defendant's request, thefirstset of motions to compel. (R. Decl., Ex. 6.) The Parties met and conferred
10 telephonically on December 20,2017, addressing how Defendant's production altered the dispute detailed
11 in the motions and further exhausting any remaining issues. (R. Decl., Ex. 7.)
12 Plaintiff filed the second set of Motions to Compel on January 17, 2018, pared down to only those
13 discovery requests that Defendant had maintained from its initial responses that it would not provide without
14 court intervention. (R. Decl. ^ 10.) Defendantfiledits Motion to Sequence Discovery on January 23, 2018.
15 (R. Decl. n i l . ) Notably, Defendant's Motion to Sequence addressed the very same discovery at issue in
16 Plaintiffs second set of Motions to Compel. It defies logic that Plaintiff had failed to meet and confer
17 regarding the disputed discovery but Defendant's meet and confer efforts - efforts that would necessarily
18 require conferring as to the discoveiy, but would also require additional discussions as to relevant law
19 supporting bifurcation - was sufficient and complete.
20 C. Plaintiff Withdrew the Motions at Defendant's Request and as Soon as Practicable
21 Plaintiff withdrew thefirstset of Motions to Compel on December 15,2017, roughly one week
22 after Defendant provided responses it had promised six (6) weeks prior, and five days before
23 Defendant's Opposition was due. Plaintiff reviewed Defendant's discovery responses and withdrew the
24 motions the same day Defendant requested Plaintiff withdraw the motions. (R. Decl. 9.) Although a
25 significant number of discovery requests remained at issue after the supplemental responses and production
26 of documents were provided - the same requests that were at issue in the second set of Motions to Compel
27 and that remain in dispute - Plaintiff withdrew the motions for efficiency purposes, so as not to waste the
28 Parties' or the Court's resources organizing a motion as to which discovery still required a court order. {Id.)
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
4 CASE No. 34-2017-00210560
1 Plaintiff sought to refine the motions so that they would address only the discovery that remained
2 outstanding and, also, so Plaintiff could attempt to avoid Defendant's continued dishonest claim that
3 Plaintiff had not exhausted meet and confer efforts. {Id.)
4 Plaintiff withdrew the second set of Motions to Compel on January 30, 2018, only one week
5 after Defendant filed its Motion to Sequence Discovery. (R. Decl. ^ 12.) Plaintiff reviewed Defendant's
6 motion, researched its legal positions, and, pursuant to Defendant's request of January 23, 2018, withdrew
7 the motions. {Id.) Plaintiffs counsel attempted to call Defendant's counsel earlier in the day to alert them
8 to the withdrawal as early as possible and apologized via email correspondence for the inconvenience to
9 Defendant's counsel because of Plaintiff s counsel's inability to withdraw the motions earlier without
10 prejudicing Plaintiff (R. Decl., Ex. 9.) The delay in the withdrawal was not gamesmanship, but a symptom
11 of Defendant's failure to properly and fully meet and confer regarding its motion to sequence, as well as
12 Plaintiffs counsel's obligation to Plaintiff, the class, and the State of California to preserve rights in regard
13 to the at-issue discovery. (R. Decl. 12.)
14 D. Defendant Immediately Filed a Motion for Summai'v Adjudication and Re-Filed Its
Motion to Sequence
15
On February 5, 2018, six (6) days after Plaintiff withdrew her second set of motions to compel
16
discovery. Defendant filed its MSA in which Defendant cites the discovery of class member payroll
17
Defendant so vehemently claimed was inappropriate to share with Plaintiff Defendant relied on this data
18
in its MSA to claim that "the total cash benefits provided to Participants who waived dental and/or medical
19
coverage represented a very small percentage of HNCA's contributions provided under the Plan for the
20
elected dental and/or medical coverage: 1.4% in 2013,1.3% in 2014; 0.9% in 2015; and 0.9% in2016." Def
21
Memo. ISO MSA, ROA #101, pp. 3-4.
22
Defendant'sMotion to Sequence Discovery was denied without prejudice on February 23,2018. (R
23
Decl. \ 14.) Plaintiff immediately sought to meet and confer.regarding the effect of the order on the
24
discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues. (R.
25
Decl., Ex. 10.) Pursuant to the Order on Defendant's Motion to Sequence, Plaintiff was incorrect to have
26
acquiesced to Defendant's requests by withdrawing the then-pending motions to compel, because the "issues
27
of burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
5 CASE No. 34-2017-00210560
1 discovery motions (motions to compel, motions for protective order) than by a broad stay on virtually all
2 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, ROA
3 #132, p. 2.
4 Defehdant declined Plaintiff s request to meet and confer regarding Plaintiff s upcoming Motions
5 to Compel Further Responses. (R. Decl., Ex. 10.) Instead, and without even a request to meet and confer,
6 Defendant re-filed its Motion to Sequence, to be heard this time in Department 54, contravening the Court's
7 Order that the dispute is ripe for motions to compel or motions for a protective order rather than a request
8 for a blanket stay on swaths of discovery. (R. Decl. H 15.)
9
10 III. ARGUMENT
11 "The court may impose a monetary sanction ordering that one engaging in the misuse of the
12 discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including
13 attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction
14 on one unsuccessfully assei'ting that another has engaged in the misuse of the discovery process, or
15 on any attorney who advised that assertion, or on both. I f a monetary sanction is authorized by any
16 provision of this title, the court shall impose that sanction unless it finds that the one subject to the
17 sanction acted with substantial justification or that other circumstances make the imposition of the
18 sanction unjust." Civ. Proc. Code § 2023.030(a) (emphasis added).
19 A. Plaintiff Was Substantially Justified In Bringing the Discovery Motions
20 1. Plaintiff Exhausted All Meet and Confer Efforts
21 The fact that parties do not agree is not evidence that they have failed to meet and confer
22 pursuant to the requirements of the Discoveiy Act. Clement v. Alegre, 177 Cal. App. 4th 1277,1294
23 (2009) ("That defendant "never compromised his position" that the interrogatories were proper does
24 not constitute a failure to meet and confer.") Parties may simply arrive at an impasse or, alternatively,
25 dietermine that further efforts are unlikely to bear finit and will, instead, further delay important discovery.
26 See id., at 1293-94 ("An evaluation of wdiether, from the perspective of a reasonable person in the position
27 of the discovering party, additional effort appeared likely to bear fruit, should also be considered.").
28 Defendant's motion ignores that Parties ust be allowed to agree to disagree. Construing any
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
6 CASE No. 34-2017-00210560
1 disagreement as "bad faith" is a tactical maneuver to distract the Court from the real issues. The Discovery
2 Act requires that, prior to filing a motion to compel further responses, the moving party must make a
3 "reasonable and good faith attempt at an informal resolution of each issue." Cal. Code Civ. Pro. § 2016.040.
4 "The level of effort at informal resolution which satisfies the 'reasonable and good faith attempt' standard
5 depends upon the circumstances... The history of the litigation, the nature of the interaction between
6 counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and
7 other similar factors can be relevant." Stewart v. Colonial W. Agency, Inc., 87 Cal. App. 4th 1006, 1016
8 (2001).
9 Defendant concedes that the Parties have met and conferred so extensively and exhaustively that the
10 issues are "crystallized and understood," but remains, somehow, of the position that the Parties have not
11 sufficiently met and conferred. (R. Decl., Ex. 10.) These concepts contradict each other. Parties need not
12 meet and confer in perpetuity, nor is the goal necessarily a consensus. The purpose of the meet and confer
13 requirement is precisely w^at has been accomplished: explanation, evaluation, and a good faith attempt to
14 resolve any issues that have the potential for resolution.
15 2. The Discovery Was and Remains Relevant, Timely, and At Issue
16 Now that Defendant's motion to sequence discovery has been denied. Plaintiff will shortly be
17 re-filing the motions to compel discovery in order to obtain the data necessary to support a viable class
18 certification motion. As Plaintiff successfully argued in opposing Defendanfs motion to sequence
19 discovery, the threshold of class certification is inapplicable to the PAGA claims. Further, the discovery that
20 Defendant seeks to classify as 'merits discovery' is also the evidence that California Courts routinely
21 scrutinize in order to assess wdiether common questions predominate, wdiether the class representative's
22 claims are typical of those of the class, whether the action will be manageable at trial as a class action, and
23 whether the class members are ascertainable, all of which are requirements for certification.
24 Because Plaintiflfhas consistently maintained that the discovery in dispute is discovery relevant to
25 certification, there was no need to delay its production until a after ruling on Defendant's Motion to
26 Sequence was issued. There was no agreement to allow a sequencing decision to dictate the production of
27 the disputed discovery. (R. Decl. ^ 7.) Plaintiff would have no motivation to make such an agreement
28 because any decision to sequence discovery such that "merits" discovery be postponed until after
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
7 CASE No. 34-2017-00210560
1 "certification" discovery would have no bearing on the discovery that has been at issue since Defendant's
2 initial responses because, as Plaintiff s counsel has maintained from the first meet and confer, the discovery
3 sought is relevant to certification. (R. Decl., Ex. 10.)
4 As the Court held, Plairitiff s position seeking the discovery that Defendant resisted is not
5 unreasonable. Order on Mot. to Sequence, ROA #132, p. 2 (March 9, 2018). Accordingly, Defendant's
6 request for sanctions for Plaintiff s attempt to move the Court to produce the discovery should be denied.
7 Plaintiff should not be punished for seeking what Defendant calls "merits discovery" in light of the Court's
8 Order agreeing that Plaintiff had a good faith belief that such discovery was needed for class certification.
9 B. The Imposition of Monetary Sanctions Against PlaintiflTs Counsel Would Be Unjust
Because Defendant Manufactured an Untenable Position for Plaintiff
10
Plaintiff withdrew four of the five discovery motions at the explicit and admitted request of
11
Defendant. (Memo. ISO Motion for Sactions, ROA # 126, pp. 1, 7, and 8 ("Health Net... renewed its
12
request that [Plaintiff] withdraw her First Set of Motions to Compel..." and "Health Net requested
13
that Plaintiff Spears withdraw her Second Set of Motions to Compel."). Defendant now, ironically,
14
seeks sanctions for Plaintiff s compliance with Defendant's own requests.
15
Plaintiff filed thefirsttwo motions - regarding Special Interrogatories, Set One, and Requests for
16
Production, Set One - because Defendant's responses were deficient and, although Defendant continued
17
to promise supplemental responses and documents, none were provided and no date certain was set. Plaintiff
18
withdrewthisfirstset of motions because Defendant responded to Plaintiff sfilingbyfinallyproviding the
19
promised supplemental responses and document production. Because the new discovery responses changed
20
the landscape of Plaintiff s motions and because Defendant requested that the motions be withdrawn in light
21
of the supplemental responses, Plaintiff withdrew them.
22
Plaintiff filed the second set of motions to compel discovery - again regarding Special
23
Interrogatories, Set One, and Requests for Production, Set One, but refined and updated after Defendant's
24
production made in response to thefirstset of motions - because Defendant's responses remained deficient,
25
albeit to fewer interrogatories and requests. Plaintiff withdrew the motions after having had the opportunity
26
to review Defendant's Motion to Sequence so as to fully understand the basis for Defendant's request to
27
have the Motion to Sequence heard first. After evaluating Defendant's position, made clear only through
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
8 CASE No. 34-2017-00210560
1 its motion. Plaintiff agreed that having both motions pending was redundant and, again, prompted by
2 Defendant's request to have its motion heard rather than Plaintiff s, Plaintiff withdrew her motions.
3 Notably, Defendant's request for Plaintiff to withdraw the second set of motions carried with it a
4 threat that Defendant would seek sanctions if Plaintiff s motion was heard. (R Decl.. Ex. 8.) Thus, in part
5 to avoid defending herself against a frivolous argument for sanctions, Plaintiff withdrew of the second set
6 of motions to compel. In this way. Plaintiff was put in an untenable position where, in either event,
7 Defendant was bound and determined to distract the Court from the real issues in the case by way of seeking
8 sanctions when Plaintiff, as confirmed by the Court, was seeking to prosecute the case by obtaining
9 discovery that was reasonably sought as necessary based on the law and counsel's experience.
10 C. Defendant Has Misused the Discovery Process
11 1. Defendant Has Availed Itself of the Same Discoveiy Plaintiff Sought Through
the Withdrawn Motions
12
Defendant's request should also be denied on the basis that Defendant has availed itself of classwide
13
merits discovery as a foundation for factual claims made in Defendant's Motion for Summary Adjudication
14
("MSA") that Defendant filed against Plaintiff Amazingly, the discovery of class member payroll
15
Defendant so vehemently claimed was inappropriate to share with Plaintiff has been relied upon by
16
Defendant in its MSA to claim that "the total cash benefits provided to Participants who waived dental
17
and/or medical coverage represented a very small percentage of HNCA's contributions provided under the
18
Plan for the elected dental and/or medical coverage: 1.4% in 2013, 1.3% in 2014; 0.9% in 2015; and 0.9%
19
in2016." Def Memo. ISO MSA, ROA #101, pp. 3-4.
20
Clearly, Plaintiff acted in good faith attempting to obtain the payroll records of the Class Members
21
so that Plaintiff could have been able to independently discover the amounts the Class Members received
22
in the form of cash benefits. Because Defendant steadfastly refused to produce the discovery. Plaintiff is
23
now put in the unfair position where Defendant is able to rely on the data to Defendant's own benefit and
24
Plaintiff cannot even oppose the MSA by testing whether Defendant's factual claims regarding the
25
classwide payroll data are true or not. Defendant's use of classwide evidence of total amounts of cash
26
payments made to all Class Members completely contradicts Defendant's steadfast claims that Plaintiff
27
somehow acted inappropriately in seeking such discovery for this case. Now that Plaintiff has been
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
9 CASE No. 34-2017-00210560
1 hamstrung in the ability to oppose Defendant's MSA, Defendant is the party that should be imposed with
2 sanctions when Plaintiffs Motions to Compel Discovery are finally heard.
3 2. Defendant Has Not Acted in Good Faith Regarding This Discoveiy Dispute
4 Despite Plaintiff s repeated, consistent, and prolonged efforts to meet and confer with Defendant,
5 Defendant has repeated its disingenuous assertion the Plaintiff has failed in this obligation. These oft-
6 repeated claims by Defendant are belied by Defendant's own characterization of the issues as "crystalized
7 and understood," as well as by its filing of its own motions without additional conferences of counsel.
8 Indeed, instead of a further meet and confer after the Order denying Defendant's Motion to
9 Sequence, Defendant responded to Plaintiff s counsel's request with insults, condescension, and name-
10 calling. (R. Decl., Ex. 10.) Defendant did not abide by its representation to Plaintiff that it would produce
11 the outstanding discovery if the Court declined to sequence discovery but, instead, has repudiated such a
12 position in favor of further motion practice. More shockingly. Defendant has contravened the Order of the
13 Court denying its Motion to Sequence Discovery because, instead of opposing Plaintiffs upcoming Motions
14 to Compel or filing its own Motion for a Protective Order, it has re-filed its motion to sequence discovery
15 in a bald attempt to forum shop a more favorable outcome. Dissatisfied with the Order issued by the
16 Honorable Judge Perkins, Defendant filed its renewed motion in this Department, seeking an order as to
17 the same issue, but in an alternate forum. That the Order on Defendant's Motion to Sequence was without
18 prejudice does not give Defendant leeway to forum shop for its preferred outcome.
19
20 IV. CONCLUSION
21 For these reasons. Defendant's motion must be denied.
22 Respectfully submitted.
23
DATED: March 14,2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE
24 BLOUW LLP,
25
By:
26 Victoria B. Riva:{)al^cio, Esq.
•Attomeys-for-Plaintiff-
27
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
10 CASE No. 34-2017-00210560
1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 I, VictoriaB. Rivapalacio, declare as follows:
3 1. I am one of attorneys of record for the Plaintiff in the above entitled action, and have
4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify
5 competently thereto, except as to the matters stated on iiiformation and belief, and as to such matters I
6 believe them to be true.
7 2. This declaration is being submitted in support of Plaintiff s Opposition to Defendant's
8 Motion for Monetary Sanctions.
9 3. Plaintiff served her first set of discovery requests on July 25, 2017. After Plaintiff granted
10 Defendant's request for an extension, Defendarit served its initial responses on September 12, 2017 and
11 its first set of documents on September 14, 2017.
12 4. On September 21, 2017, Plaintiff sent an eight-page correspondence to Defendant
13 detailing deficiencies in Defendant's responses. On September 22, 2017, Plaintiff sent follow-up
14 correspondence to Defendant detailing further deficiencies in Defendant's responses, attaching a draft of
15 a proposed Belaire-West opt-out notice.
16 5. Plaintiff followed up regularly over the following month, including emails on September
17 26, 28, 29, October 2, 4, 6, 9, 10, 11, 13, 17, 18, 23, 2017 along with a number of voicemail messages. A
18 true and correct copy of an email chain including Defendant's responses of September 28, 2017,
19 October 4, 2017, and October 10, 2017 is attached as Exhibit 1.
20 6. Plaintiff and Defendant finally met and conferred telephonically on October 24, 2017.
21 During that meet and confer session. Defendant maintained two different positions in regard to the
22 various deficient responses: 1) Defendant agreed that the responses were deficient and promised to
23 remedy the deficiencies through the provision of supplemental responses, but would "not provide a
24 timeline as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought
25 was "merits" discovery and stated it would not produce it without Court intervention. A true and correct
26 copy of the confirmatory email exchange regarding the October 24, 2017 meet and confer is attached as
27 Exhibit 2. Notably, Defendant did assert during the telephonic conference that it would willingly
28 produce even that discovery it considered "merits" if the Court declined to sequence discovery.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
1 CASE No. 34-2017-00210560
1 7. The Parties did not have an agreement to allow a sequencing decision to dictate whether
2 Plaintiff s pending discovery requests were entitled to responses from Defendant. Plaintiff has
3 consistently maintained that the discovery sought is relevant to certification and, thus, unaffected by a
4 decision to bifurcate discovery.
5 6. On October 25, 2017, Plaintiff provided Defendant with a revised Belaire notice based on
6 the meet and confer call of the previous day and v^ich Plaintiff Arana approved the following day, on
7 October 26, 2017. A true and correct copy of the email exchange is attached as Exhibit 3. The Parties
8 once again met and conferred telephonically regarding the Belaire notice on October 30, 2017. A true
9 and correct copy of the confirmatory email is attached as Exhibit 4. Defendant did not provide aijy
10 revisions to the Belaire notice until November 9, 2017. Attueand correct copy of the email is attached
11 as Exhibit 5.
12 7. Based on the meet and confer efforts, as well as Defendant's prior delay tactics. Plaintiff
13 determined that the Parties were at an impasse and could benefit from Court intervention.
14 8. Although Plaintiff followed up regularly in the interim and innumerable email
15 correspondence were exchanged, over a month later. Defendant had still yet to provide supplemental
16 responses, produce documents, or provide a date certain as to the anticipated production. Further, no
17 further ground was gained in regard to the discovery that was undeniably in dispute, that Defendant
18 oufright refused to produce without a Court order. The delay forced Plaintiff to file her first set of
19 motions to compel further responses in regard to the deficient discovery responses, which she did on
20 December 1, 2017 and December 4, 2017. Defendant did not provide the promised supplemental
21 responses to Plaintiffs discovery requests until December 6, 2017, with the further document
22 production made thereafter on December 7, 2017. Thus, it was only after Plaintiff incurred the fees and
23 costs associated with drafting and filing the motions that Defendant provided the supplemental
24 responses to a number of the outstanding discovery requests and the associated further document
25 production.
26 9. Plaintiff withdrew the motions on December 15, 2017, roughly one week after Defendant
27 provided its promised responses and five days before Defendant's Opposition was due. Plaintiff
28 reviewed Defendant's discovery responses and wdthdrew the motions the same day Defendant requested
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS ~
2 CASE No. 34-2017-00210560
1 - for the first time - that Plaintiff withdraw the motions. Plaintiff withdrew the motions for efficiency
2 purposes, so as not to waste the Parties' or the Court's resources organizing a motion as to which
3 discovery still required a court order. Plaintiff sought to refine the motions so that they would address
4 only the discovery that remained outstanding and, also, so Plaintiff could attempt to avoid Defendant's
5 continued dishonest claim that Plaintiff had not exhausted meet and confer efforts.
6 9. Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly
7 and exhaustively meet and confer. Plaintiff sought to meet and confer with Defendant again after
8 withdrawing, per Defendant's request, thefirstset of motions to compel. A true and correct copy of the
9 email correspondence of December 18, 2017 is attached as Exhibit 6. The Parties met and conferred
10 telephonically on December 20, 2017, addressing how Defendant's production altered the dispute
11 detailed in the motions and further exhausting any remaining issues. A true and correct copy of the
12 confirmatory email is attached as Exhibit 7.
13 10. Plaintiff filed the second set of motions to compel further responses on January 17, 2018,
14 pared down to only those discovery requests that Defendant had maintained from its initial responses
15 that it would not provide without court intervention.
16 11. Defendant filed its Motion to Sequence Discovery on January 23, 2018. Defendant's
17 Motion to Sequence addressed the very same discovery at issue in Plaintiff s second set of Motions to
18 Compel. The same day, Defendant requested that Plaintiff withdraw her pending motions to compel. A
19 ttue and correct copy of the email correspondence is attached as Exhibit 8.
20 12. Plaintiff withdrew the second set of Motions to Compel on January 30, 2018, only one
21 week after Defendant filed its Motion to Sequence Discovery. Plaintiff reviewed Defendant's
22 motion, researched its legal positions, and, pursuant to Defendant's request of January 23, 2018,
23 withdrew the motions. Plaintiff s counsel attempted to call Defendant's counsel earlier in the day to
24 alert them to the withdrawal as early as possible and apologized via email correspondence for the
25 inconvenience to Defendant's counsel because of Plaintiff s counsel's inability to withdraw the motions
26 earlier without prejudicing Plaintiff. Attueand correct copy of the email correspondence is attached as
27 Exhibit 9. The delay in the withdrawal was not gamesmanship, but a symptom of Defendant's failure to
28 properly and fully meet and confer regarding its motion to sequence, as well as Plaintiff s counsel's
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
3 CASE No. 34-2017-00210560
1 obligation to Plaintiff to preserve her rights in regard to the at-issue discovery.
2 13. Six (6) days after Plaintiff withdrew her motions, on February 5, 2018, Defendant filed
3 its Motion for Summary Adjudication.
4 14. Defendant's Motion to Sequence Discovery was denied without prejudice on February
5 23, 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the
6 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues.
7 Defendant declined Plaintiff s request to meet and confer regarding Plaintiff s upcoming Motions to
8 Compel Further Responses. A true and correct copy of the email exchange is attached as Exhibit 10.
9 15. Without even a request to meet and confer. Defendant re-filed its Motion to Sequence on
10 March 9, 2018, scheduled to be heard in Department 54 on April 9, 2018.
11
12 //
13 I declare under penalty of perjury under the laws of the State of Califomia that the
14 foregoing is true and correct. Executed this 14th day of March, 2018, at La Jolla, Califomia.
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
4 CASE No. 34-2017-00210560
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EXHIBIT #1
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS
5 CASE No. 34-2017-00210560
Victori^Rivagalaci^
From: Victoria Rivapalacio
Sent: Friday, October 13, 2017 4:24 PM
To: l e e , Stephanie Gail'
Cc: l o n g , Timothy J.'; Norm Blumenthal; Kyle Nordrehaug; AJ B; Piya Mukherjee;
'shaun@setarehlaw.com'; 'thomas@setarehlaw.com'; 'scott@setarehlaw.com';
'farrah@setarehlaw.com'; 'stacey@setarehlaw.com'
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
Please respond with a time you are available to speak.
Thank you,
Victoria
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Wednesday, October 11, 2017 4:11 PM
To: l e e , Stephanie Gail'
Cc: l o n g , Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee ; 'shaun@setarehlaw.com'
; 'thomas@setarehlaw.com' ; 'scott@setarehlaw.com'
; 'farrah@setarehlaw.com' ; 'stacey@setarehlaw.com'
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
On September 28, I was told "next week." On October 4,1 was told "shortly." Yesterday, October 10, you stated "in the
next week or so." A conference of counsel to discuss discovery should not be subject to such delays.
Further, a prolonged letter-writing campaign is less efficient and less productive than a simple and straight-forward
telephone conversation. Accordingly, please provide a time when you are available to meet and confer telephonically
tomorrow.
Thank you,
Victoria
From: Lee, Stephanie Gail rmailto:stephanie.lee@orrick.com]
Sent: Tuesday, October 10, 2017 3:01 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B : Piya Mukherjee ; shaun@setarehlaw.com;
thomas@setarehlaw.com; scott@setarehlaw.com; farrah@setarehlaw.com: stacev@setarehlaw.com
Subject: RE: Spears v. Health Net of California, Inc.
Victoria,
I will send a responsive meet and confer letter, which I hope to do in the next week or so.
1
Thank you,
Stephanie
Stephanie Gail Lee
Managing Associate
Orricl<
Los Angeles (w)
T+1-213-612-2374
Stephanie.lee @orricl<.com
orrick
From: Victoria Rivapalacio [mailto:victoria@bamlawca.c6m1
Sent: Tuesday, October 10, 2017 3:03 PM
To: Lee, Stephanie Gail
Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee ; shaun@setarehlaw.com;
thomas@setarehiaw.com; scott@setarehlaw.com; farrah@setarehlaw.com; stacev@setarehlaw.com
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
Following up. Please respond.
Thank you,
Victoria
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Monday, October 09, 2017 5:51 PM
To: 'Lee, Stephanie Gail'
Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee ; 'shaun@setarehlaw.com'
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
1 write to follow up. Please provide a time this week when you are available to meet and confer.
Thank you,
Victoria
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Friday, October 06, 2017 2:07 PM
To: 'Lee, Stephanie Gail'
Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee ; 'shaun@setarehlaw.com'
Subject: RE: Spears V. Health Net of California, Inc.
Stephanie,
Please provide a time during the coming week when you are available to meet and confer regarding Defendant's
discovery responses and the opt-out notice.
Thank you,
Victoria ^
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Wednesday, October 04, 2017 2:36 PM
To: 'Lee, Stephanie Gail'
Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B : Piya Mukherjee : 'shaun@setarehlaw.com'
Subject: RE: Spears v. Health Net of California, Inc.
Thank you for the extension to December 1, 2017, Stephanie.
Are you available later this week for a call regarding Defendant's discovery responses and the opt-out notice?
Regards,
Victoria
From: Lee, Stephanie Gail [mailto:stephanie.lee@orrick.com]
Sent: Wednesday, October 04, 2017 1:07 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee ; shaun@setarehlaw.com
Subject: RE: Spears v. Health Net of California, Inc.
Victoria,
I apologize for the delay in getting back to you. I understand that you are concerned about timing. So that the parties
may have adequate time to meet and confer. Defendant is amenable to granting Plaintiff a 30-day extension of time - to
December 1, 2017 - within which to file any necessary motion to compel Defendant's further responses to her first sets
of document requests, requests for admissions, special interrogatories and employment law form interrogatories. In the
meantime, I anticipate getting back to you shortly on the substance of your meet and confer correspondences.
Thank you,
Stephanie
Stephanie Gall Lee
IVIanaging Associate
Orricl<
Los Angeles (5j
T+1-213-612-2374
Stephanie,lee@orrick.com
orrick
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Monday, October 2, 2017 3:32 PM
To: Lee, Stephanie Gail
Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee ; shaun@setarehlaw.com
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie:
Following up. Please provide a time when you are available to meet and confer.
Thank you,
Victoria
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Friday, September 29, 2017 2:33 PM
To: 'Lee, Stephanie Gail'
Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
I look forward to your providing me with a time and date to discuss this discovery letter that I sent you last week, on
September 21, 2017.
My compel date is October 27, 2017 and the large number of deficient responses require no further delay given the time
I will need to prepare and file the motion.
Thank you,
Victoria
From: Lee, Stephanje Gail [mailto:stephanie.lee@orrick.com]
Sent: Friday, September 29, 2017 2:10 PM
To: Victoria Rivapalacio
Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee
Subject: RE: Spears v. Health Net of California, Inc.
Victoria,
I am unavailable at that time. As mentioned, we are aiming to get back to you sometime next week.
Thank you,
Stephanie
Stephanie Gail Lee
Managing Associate
Orrick
Los Angeles ©
T+1-213-612-2374
stephanie.lee@orrick.com
orrick
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Friday, September 29, 2017 1:19 PM
To: Lee, Stephanie Gail
Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug
; AJ B ; Piya Mukherjee
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
I will call you Monday, Oct. 2, 2017 at 2 p.m. unless I hear from you that another time works better.
Thank you,
Victoria
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Thursday, September 28, 2017 2:10 PM
To: 'Lee, Stephanie Gail'
Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug
: AJ B ; Piya Mukherjee
Subject: RE: Spears v. Health Net of California, Inc.
Stephanie,
Thanks for getting back to me. I am available Monday of next week at 2 pm. Does that work for you? I can call you then.
Regards,
Victoria
From: Lee, Stephanie Gail [mailto:stephanie.lee@orrick.com]
Sent: Thursday, September 28, 2017 1:35 PM
To: 'Victoria Rivapalacio'
Cc: Long, Timothy J.
Subject: Spears v. Health Net of California, Inc.
Victoria,
I understand you reached out to Tim. He is out of pocket, but we'll look to getting back to you sometime next week.
Thank you.
Stephanie
Stephanie Gail Lee
Managing Associate
Orrick
Los Angeles ®
T +1-213^12-2374
stephanie.lee@orrick.com
orrick
NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and
Preview
ENDORSED 1 BLUMENTHAL NORDREHAUG BHOWMIKDE BLOUW L L P Nornian B. Blumenthal (State Bar #068687) 2018H.^R Ik PH 3:h2 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Victoria B. Rivapalacio (State Bar #275115) 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858)551-1232 6 Attorneys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS an individual, on Case No. 34-2017-00210560-CU-OE-GDS 14 behalf of herself and on behalf of all persons similarly situated, CLASS ACTION 15 16 Plaintiff, PLAINTIFF ANDREA SPEARS'S OPPOSITION TO DEFENDANT'S 17 vs. MOTION FOR MONETARY SANCTIONS; DECLARATION OF 18 HEALTH NET OF CALIFORNIA, VICTORIA B. RTVAPALACIO IN INC., a California Corporation; and SUPPORT r-^^^ „ 19 Does 1 through 50, Inclusive, Telephone Appearance 20 Defendants. Hearing Date: March 27, 2018 21 Hearing Time: 9:00 a.m. TOMAS R. ARAN A, on behalf of Judge: Hon. Alan G. Perkins 22 himself, all others similarly situated. Dept.: 54 23 Plaintiff, Action Filed: April 5, 2017 24 vs. 25 HEALTH NET OF CALIFORNIA, INC., a California corporation; and 26 DOES 1 through 50, inclusive. 27 Defendants. 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS CASE No. 34-2017-00210560 1 I. INTRODUCTION 2 Defendant's Motion for Sanctions must be denied. The Court has ruled that Plaintiff s positions 3 taken in Plaintiffs discovery motions were substantially justified. Further, the record is clear that both sets 4 of motions to compel were made after exhaustive good faith meet and confer efforts. The imposition of such 5 sanctions would, therefore, be unjust especially because imposing them would reward Defendant's counsel's 6 disingenuous use of the meet and confer rules to delay and game the system so that Defendant's Motion for 7 Summary Adjudication ("MSA") could be heard before Plaintiff could obtain the discovery required to 8 oppose the motion. 9 The Court's order denying Defendant's Motion to Sequence Discovery ruled that "the issues of 10 burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in 11 detailed discovery motions (motions to compel, motions for protective order) than by a broad stay on 12 virtually all discovery without the detailed substance necessary to assess such issues." Order on Mot. 13 to Sequence, ROA #132, p. 2 (March 9,2018).' Plaintiffs discovery motions at issue in Defendant's Motion 14 for Sanctions were justified by this rationale and Plaintiffsfirstset of motions to compel was also justified 15 because the filing of the motions was the only reason Defendant later produced the discovery sought by the 16 motions. 17 Plaintiff sought discovery through the motions that is not "merits" discovery, but, rather, is the 18 evidence that California Courts routinely scrutinize in order to assess whether common questions 19 predominate, w^iether the class representative's claims are typical of those of the class, whether the action 20 will be manageable at trial as a class action, and vAiether the class members are ascertainable, all of which 21 are requirements for certification. Plaintiff has consistently maintained that the discovery in dispute is 22 discovery relevant to certification. Based on this, there was never a reason to delay its production until a 23 after ruling on Defendant's Motion to Sequence was issued, which is why Plaintiff filed motions to compel 24 its production, regardless of Defendant's progress on its own Motion to Sequence Discovery. As confirmed 25 by the Court Order, Plaintiff was substantially justified in bringing the motions to compel. 26 Further, Defendant misunderstands the purpose of the Discovery Act. Parties are required to meet 27 28 ' Emphasis added unless otherwise indicated. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 1 CASE No. 34-2017-00210560 1 and confer prior to filing motions so as to make a good faith attempt to resolve or refine any issues that may 2 not require court intervention. Defendant's motion for sanctions is belied by Defendant's admission that the 3 Parties, here, have met and conferred so extensively and exhaustively that the issues are "crystallized and 4 understood." (Declaration of VictoriaB. Rivapalacio ("R. Decl."), Ex. 10.) As a result. Defendant's position 5 that the Parties have not sufficient met and conferred is purely tactical. There is, therefore, no doubt that the 6 purpose of the meet and confer requirement was accomplished: explanation, evaluation, and good faith 7 attempts made to resolve any issues that have the potential for resolution. 8 As this Court can see by Defendant's filing of a second motion to sequence discovery and the filing 9 of a MSA, Defendant's tactics were at all times to rush Defendant's filings to the front of the line. The 10 discover of classwide payroll data Defendant claims Plaintiff should be punished for seeking is actually the 11 same information Defendant unilaterally gathered and used for Defendant's own benefit in filing the MSA. 12 Because Plaintiff agreed to Defendant's proposal to withdraw the second motions to compel, Plaintiff now 13 is disadvantaged by not having this data to review that Defendant is relying on to move for summary 14 adjudication against Plaintiff 15 Plaintiffs motions sought discovery that Judge Perkins agreed was reasonably sought for this 16 litigation. Further, the discovery also sought dataDefendant is now able to use unilaterally against Plaintiff 17 For these reasons, Plaintiffs motions were clearly good faith attempts to prosecute this wage and hour class 18 and representative PAGA action under duties Plaintiffs counsel owes to the class of employees and to the 19 State of California On these grounds, Defendant's motion must be denied, 20 21 II. STATEMENT OF FACTS 22 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a 23 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears 24 action withArana v. Health Net of California, Inc., case no. 34-2017-00216685, v*^ich the Court ordered 25 consolidated on October 11, 2017. 26 A. Despite Defendant's Delay Tactics. Plaintiff Has Exhausted Meet and Confer Efforts 27 Plaintiff served her first set of discovery requests on July 25, 2017. (R. Decl. *[[ 3.) After Plaintiff 28 granted Defendant's request for an extension, Defendant served its initial responses on September 12,2017, PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 2 CASE No. 34-2017-00210560 1 and produced its first set of documents on September 14, 2017. {Id.) 2 1. PlaintifFs Belaire Notice Motion and First Set of Motions to Compel 3 On September 21 and 22,2017, Plaintiff sent correspondence to Defendant detailing the deficiencies 4 in Defendant's responses, along with a draft Belaire notice. (R. Decl. T| 4.) Plaintiff"followed up repeatedly 5 through the following month. (R. Decl., Ex. 1.) For the most part, in response to Plaintiffs requests, 6 Defendant offered silence. (Id) When Defendant did respond, it was to kick the can down the road. For 7 example, in response to Plaintiff s request on September 28, 2017, Defendant stated it would get in touch 8 "next week." {Id.) In response to Plaintiffs request on October 4,2017, Defendant stated it would respond 9 "shortly." {Id.) In response to Plaintiffs request on October 10, 2017, Defendant stated it would respond 10 "in the next week or so." {Id.) Defendant onlyfinallymade itself available for a telephonic meet and 11 confer on October 24,2017, over a month after Plaintifffirstrequested to meet and confer regarding 12 the discovery. (R. Decl., Ex. 2.) 13 On October 25, 2017, Plaintiff"provided Defendant with a revised 5e/a/>"e notice based on the meet 14 and confer call and which Plaintiff Arana approved the following day, on October 26, 2017. (R. Decl., EJL. 15 3.) The Parties once again met and conferred telephonically regarding the Belaire notice on October 30, 16 2017. (R. Decl., Ex. 4.) Defendant did not provide its revisions until November 9, 2017. (R. Decl., Ex. 5.) 17 Based on the meet and confer efforts and Defendant's prior delay tactics, Plaintiff determinedfiartherefforts 18 would be fruitless and the dispute would benefit from Court intervention. 19 During the telephonic meet and confer on October 24, 2017, Defendant maintained two different 20 positions in regard to the various deficient responses: 1) Defendant agreed that the responses were deficient 21 and promised to remedy the deficiencies through supplemental responses, but would "not provide a timeline 22 as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought was "merits" 23 discovery and stated it would not produce it without Court intervention. (R Decl., Ex. 2.^ Notably, 24 Defendant did assert that it would willingly produce even that discovery it considered "merits" if the Court 25 declined to sequence discovery. (R. Decl. H 6.) 26 The Parties exchanged dozens of email correspondence and conferred telephonically but, over a 27 month later, Defendant had still yet to provide supplemental responses, produce documents, or provide a 28 date certain as to the anticipated production. (R Decl. ^ 8.) Further, in that interim, no further ground was PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS • 3 CASE No. 34-2017-00210560 ' 1 gained in regard to the discovery that was undeniably in dispute, that Defendant outright refused to produce 2 without a Court order. {Id.) Plaintiff, therefore, was forced to file the first set of motions to compel on 3 December 1, 2017. Defendant sei-ved the supplemental responses on December 6 and 7, 2017, six (6) 4 weeks after the initial meet and confer and only after Plaintiff was forced to incur the fees and costs 5 associated with the discovery motions. {Id.) 6 2. PlaintifFs Second Set of Motions to Compel Further Responses 7 Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly and 8 exhaustively meet and confer. Plaintiff sought to meet and confer with Defendant again after withdrawing, 9 per Defendant's request, thefirstset of motions to compel. (R. Decl., Ex. 6.) The Parties met and conferred 10 telephonically on December 20,2017, addressing how Defendant's production altered the dispute detailed 11 in the motions and further exhausting any remaining issues. (R. Decl., Ex. 7.) 12 Plaintiff filed the second set of Motions to Compel on January 17, 2018, pared down to only those 13 discovery requests that Defendant had maintained from its initial responses that it would not provide without 14 court intervention. (R. Decl. ^ 10.) Defendantfiledits Motion to Sequence Discovery on January 23, 2018. 15 (R. Decl. n i l . ) Notably, Defendant's Motion to Sequence addressed the very same discovery at issue in 16 Plaintiffs second set of Motions to Compel. It defies logic that Plaintiff had failed to meet and confer 17 regarding the disputed discovery but Defendant's meet and confer efforts - efforts that would necessarily 18 require conferring as to the discoveiy, but would also require additional discussions as to relevant law 19 supporting bifurcation - was sufficient and complete. 20 C. Plaintiff Withdrew the Motions at Defendant's Request and as Soon as Practicable 21 Plaintiff withdrew thefirstset of Motions to Compel on December 15,2017, roughly one week 22 after Defendant provided responses it had promised six (6) weeks prior, and five days before 23 Defendant's Opposition was due. Plaintiff reviewed Defendant's discovery responses and withdrew the 24 motions the same day Defendant requested Plaintiff withdraw the motions. (R. Decl. 9.) Although a 25 significant number of discovery requests remained at issue after the supplemental responses and production 26 of documents were provided - the same requests that were at issue in the second set of Motions to Compel 27 and that remain in dispute - Plaintiff withdrew the motions for efficiency purposes, so as not to waste the 28 Parties' or the Court's resources organizing a motion as to which discovery still required a court order. {Id.) PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 4 CASE No. 34-2017-00210560 1 Plaintiff sought to refine the motions so that they would address only the discovery that remained 2 outstanding and, also, so Plaintiff could attempt to avoid Defendant's continued dishonest claim that 3 Plaintiff had not exhausted meet and confer efforts. {Id.) 4 Plaintiff withdrew the second set of Motions to Compel on January 30, 2018, only one week 5 after Defendant filed its Motion to Sequence Discovery. (R. Decl. ^ 12.) Plaintiff reviewed Defendant's 6 motion, researched its legal positions, and, pursuant to Defendant's request of January 23, 2018, withdrew 7 the motions. {Id.) Plaintiffs counsel attempted to call Defendant's counsel earlier in the day to alert them 8 to the withdrawal as early as possible and apologized via email correspondence for the inconvenience to 9 Defendant's counsel because of Plaintiff s counsel's inability to withdraw the motions earlier without 10 prejudicing Plaintiff (R. Decl., Ex. 9.) The delay in the withdrawal was not gamesmanship, but a symptom 11 of Defendant's failure to properly and fully meet and confer regarding its motion to sequence, as well as 12 Plaintiffs counsel's obligation to Plaintiff, the class, and the State of California to preserve rights in regard 13 to the at-issue discovery. (R. Decl. 12.) 14 D. Defendant Immediately Filed a Motion for Summai'v Adjudication and Re-Filed Its Motion to Sequence 15 On February 5, 2018, six (6) days after Plaintiff withdrew her second set of motions to compel 16 discovery. Defendant filed its MSA in which Defendant cites the discovery of class member payroll 17 Defendant so vehemently claimed was inappropriate to share with Plaintiff Defendant relied on this data 18 in its MSA to claim that "the total cash benefits provided to Participants who waived dental and/or medical 19 coverage represented a very small percentage of HNCA's contributions provided under the Plan for the 20 elected dental and/or medical coverage: 1.4% in 2013,1.3% in 2014; 0.9% in 2015; and 0.9% in2016." Def 21 Memo. ISO MSA, ROA #101, pp. 3-4. 22 Defendant'sMotion to Sequence Discovery was denied without prejudice on February 23,2018. (R 23 Decl. \ 14.) Plaintiff immediately sought to meet and confer.regarding the effect of the order on the 24 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues. (R. 25 Decl., Ex. 10.) Pursuant to the Order on Defendant's Motion to Sequence, Plaintiff was incorrect to have 26 acquiesced to Defendant's requests by withdrawing the then-pending motions to compel, because the "issues 27 of burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 5 CASE No. 34-2017-00210560 1 discovery motions (motions to compel, motions for protective order) than by a broad stay on virtually all 2 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, ROA 3 #132, p. 2. 4 Defehdant declined Plaintiff s request to meet and confer regarding Plaintiff s upcoming Motions 5 to Compel Further Responses. (R. Decl., Ex. 10.) Instead, and without even a request to meet and confer, 6 Defendant re-filed its Motion to Sequence, to be heard this time in Department 54, contravening the Court's 7 Order that the dispute is ripe for motions to compel or motions for a protective order rather than a request 8 for a blanket stay on swaths of discovery. (R. Decl. H 15.) 9 10 III. ARGUMENT 11 "The court may impose a monetary sanction ordering that one engaging in the misuse of the 12 discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including 13 attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction 14 on one unsuccessfully assei'ting that another has engaged in the misuse of the discovery process, or 15 on any attorney who advised that assertion, or on both. I f a monetary sanction is authorized by any 16 provision of this title, the court shall impose that sanction unless it finds that the one subject to the 17 sanction acted with substantial justification or that other circumstances make the imposition of the 18 sanction unjust." Civ. Proc. Code § 2023.030(a) (emphasis added). 19 A. Plaintiff Was Substantially Justified In Bringing the Discovery Motions 20 1. Plaintiff Exhausted All Meet and Confer Efforts 21 The fact that parties do not agree is not evidence that they have failed to meet and confer 22 pursuant to the requirements of the Discoveiy Act. Clement v. Alegre, 177 Cal. App. 4th 1277,1294 23 (2009) ("That defendant "never compromised his position" that the interrogatories were proper does 24 not constitute a failure to meet and confer.") Parties may simply arrive at an impasse or, alternatively, 25 dietermine that further efforts are unlikely to bear finit and will, instead, further delay important discovery. 26 See id., at 1293-94 ("An evaluation of wdiether, from the perspective of a reasonable person in the position 27 of the discovering party, additional effort appeared likely to bear fruit, should also be considered."). 28 Defendant's motion ignores that Parties ust be allowed to agree to disagree. Construing any PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 6 CASE No. 34-2017-00210560 1 disagreement as "bad faith" is a tactical maneuver to distract the Court from the real issues. The Discovery 2 Act requires that, prior to filing a motion to compel further responses, the moving party must make a 3 "reasonable and good faith attempt at an informal resolution of each issue." Cal. Code Civ. Pro. § 2016.040. 4 "The level of effort at informal resolution which satisfies the 'reasonable and good faith attempt' standard 5 depends upon the circumstances... The history of the litigation, the nature of the interaction between 6 counsel, the nature of the issues, the type and scope of discovery requested, the prospects for success and 7 other similar factors can be relevant." Stewart v. Colonial W. Agency, Inc., 87 Cal. App. 4th 1006, 1016 8 (2001). 9 Defendant concedes that the Parties have met and conferred so extensively and exhaustively that the 10 issues are "crystallized and understood," but remains, somehow, of the position that the Parties have not 11 sufficiently met and conferred. (R. Decl., Ex. 10.) These concepts contradict each other. Parties need not 12 meet and confer in perpetuity, nor is the goal necessarily a consensus. The purpose of the meet and confer 13 requirement is precisely w^at has been accomplished: explanation, evaluation, and a good faith attempt to 14 resolve any issues that have the potential for resolution. 15 2. The Discovery Was and Remains Relevant, Timely, and At Issue 16 Now that Defendant's motion to sequence discovery has been denied. Plaintiff will shortly be 17 re-filing the motions to compel discovery in order to obtain the data necessary to support a viable class 18 certification motion. As Plaintiff successfully argued in opposing Defendanfs motion to sequence 19 discovery, the threshold of class certification is inapplicable to the PAGA claims. Further, the discovery that 20 Defendant seeks to classify as 'merits discovery' is also the evidence that California Courts routinely 21 scrutinize in order to assess wdiether common questions predominate, wdiether the class representative's 22 claims are typical of those of the class, whether the action will be manageable at trial as a class action, and 23 whether the class members are ascertainable, all of which are requirements for certification. 24 Because Plaintiflfhas consistently maintained that the discovery in dispute is discovery relevant to 25 certification, there was no need to delay its production until a after ruling on Defendant's Motion to 26 Sequence was issued. There was no agreement to allow a sequencing decision to dictate the production of 27 the disputed discovery. (R. Decl. ^ 7.) Plaintiff would have no motivation to make such an agreement 28 because any decision to sequence discovery such that "merits" discovery be postponed until after PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 7 CASE No. 34-2017-00210560 1 "certification" discovery would have no bearing on the discovery that has been at issue since Defendant's 2 initial responses because, as Plaintiff s counsel has maintained from the first meet and confer, the discovery 3 sought is relevant to certification. (R. Decl., Ex. 10.) 4 As the Court held, Plairitiff s position seeking the discovery that Defendant resisted is not 5 unreasonable. Order on Mot. to Sequence, ROA #132, p. 2 (March 9, 2018). Accordingly, Defendant's 6 request for sanctions for Plaintiff s attempt to move the Court to produce the discovery should be denied. 7 Plaintiff should not be punished for seeking what Defendant calls "merits discovery" in light of the Court's 8 Order agreeing that Plaintiff had a good faith belief that such discovery was needed for class certification. 9 B. The Imposition of Monetary Sanctions Against PlaintiflTs Counsel Would Be Unjust Because Defendant Manufactured an Untenable Position for Plaintiff 10 Plaintiff withdrew four of the five discovery motions at the explicit and admitted request of 11 Defendant. (Memo. ISO Motion for Sactions, ROA # 126, pp. 1, 7, and 8 ("Health Net... renewed its 12 request that [Plaintiff] withdraw her First Set of Motions to Compel..." and "Health Net requested 13 that Plaintiff Spears withdraw her Second Set of Motions to Compel."). Defendant now, ironically, 14 seeks sanctions for Plaintiff s compliance with Defendant's own requests. 15 Plaintiff filed thefirsttwo motions - regarding Special Interrogatories, Set One, and Requests for 16 Production, Set One - because Defendant's responses were deficient and, although Defendant continued 17 to promise supplemental responses and documents, none were provided and no date certain was set. Plaintiff 18 withdrewthisfirstset of motions because Defendant responded to Plaintiff sfilingbyfinallyproviding the 19 promised supplemental responses and document production. Because the new discovery responses changed 20 the landscape of Plaintiff s motions and because Defendant requested that the motions be withdrawn in light 21 of the supplemental responses, Plaintiff withdrew them. 22 Plaintiff filed the second set of motions to compel discovery - again regarding Special 23 Interrogatories, Set One, and Requests for Production, Set One, but refined and updated after Defendant's 24 production made in response to thefirstset of motions - because Defendant's responses remained deficient, 25 albeit to fewer interrogatories and requests. Plaintiff withdrew the motions after having had the opportunity 26 to review Defendant's Motion to Sequence so as to fully understand the basis for Defendant's request to 27 have the Motion to Sequence heard first. After evaluating Defendant's position, made clear only through 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 8 CASE No. 34-2017-00210560 1 its motion. Plaintiff agreed that having both motions pending was redundant and, again, prompted by 2 Defendant's request to have its motion heard rather than Plaintiff s, Plaintiff withdrew her motions. 3 Notably, Defendant's request for Plaintiff to withdraw the second set of motions carried with it a 4 threat that Defendant would seek sanctions if Plaintiff s motion was heard. (R Decl.. Ex. 8.) Thus, in part 5 to avoid defending herself against a frivolous argument for sanctions, Plaintiff withdrew of the second set 6 of motions to compel. In this way. Plaintiff was put in an untenable position where, in either event, 7 Defendant was bound and determined to distract the Court from the real issues in the case by way of seeking 8 sanctions when Plaintiff, as confirmed by the Court, was seeking to prosecute the case by obtaining 9 discovery that was reasonably sought as necessary based on the law and counsel's experience. 10 C. Defendant Has Misused the Discovery Process 11 1. Defendant Has Availed Itself of the Same Discoveiy Plaintiff Sought Through the Withdrawn Motions 12 Defendant's request should also be denied on the basis that Defendant has availed itself of classwide 13 merits discovery as a foundation for factual claims made in Defendant's Motion for Summary Adjudication 14 ("MSA") that Defendant filed against Plaintiff Amazingly, the discovery of class member payroll 15 Defendant so vehemently claimed was inappropriate to share with Plaintiff has been relied upon by 16 Defendant in its MSA to claim that "the total cash benefits provided to Participants who waived dental 17 and/or medical coverage represented a very small percentage of HNCA's contributions provided under the 18 Plan for the elected dental and/or medical coverage: 1.4% in 2013, 1.3% in 2014; 0.9% in 2015; and 0.9% 19 in2016." Def Memo. ISO MSA, ROA #101, pp. 3-4. 20 Clearly, Plaintiff acted in good faith attempting to obtain the payroll records of the Class Members 21 so that Plaintiff could have been able to independently discover the amounts the Class Members received 22 in the form of cash benefits. Because Defendant steadfastly refused to produce the discovery. Plaintiff is 23 now put in the unfair position where Defendant is able to rely on the data to Defendant's own benefit and 24 Plaintiff cannot even oppose the MSA by testing whether Defendant's factual claims regarding the 25 classwide payroll data are true or not. Defendant's use of classwide evidence of total amounts of cash 26 payments made to all Class Members completely contradicts Defendant's steadfast claims that Plaintiff 27 somehow acted inappropriately in seeking such discovery for this case. Now that Plaintiff has been 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 9 CASE No. 34-2017-00210560 1 hamstrung in the ability to oppose Defendant's MSA, Defendant is the party that should be imposed with 2 sanctions when Plaintiffs Motions to Compel Discovery are finally heard. 3 2. Defendant Has Not Acted in Good Faith Regarding This Discoveiy Dispute 4 Despite Plaintiff s repeated, consistent, and prolonged efforts to meet and confer with Defendant, 5 Defendant has repeated its disingenuous assertion the Plaintiff has failed in this obligation. These oft- 6 repeated claims by Defendant are belied by Defendant's own characterization of the issues as "crystalized 7 and understood," as well as by its filing of its own motions without additional conferences of counsel. 8 Indeed, instead of a further meet and confer after the Order denying Defendant's Motion to 9 Sequence, Defendant responded to Plaintiff s counsel's request with insults, condescension, and name- 10 calling. (R. Decl., Ex. 10.) Defendant did not abide by its representation to Plaintiff that it would produce 11 the outstanding discovery if the Court declined to sequence discovery but, instead, has repudiated such a 12 position in favor of further motion practice. More shockingly. Defendant has contravened the Order of the 13 Court denying its Motion to Sequence Discovery because, instead of opposing Plaintiffs upcoming Motions 14 to Compel or filing its own Motion for a Protective Order, it has re-filed its motion to sequence discovery 15 in a bald attempt to forum shop a more favorable outcome. Dissatisfied with the Order issued by the 16 Honorable Judge Perkins, Defendant filed its renewed motion in this Department, seeking an order as to 17 the same issue, but in an alternate forum. That the Order on Defendant's Motion to Sequence was without 18 prejudice does not give Defendant leeway to forum shop for its preferred outcome. 19 20 IV. CONCLUSION 21 For these reasons. Defendant's motion must be denied. 22 Respectfully submitted. 23 DATED: March 14,2018 BLUMENTHAL, NORDREHAUG BHOWMIK DE 24 BLOUW LLP, 25 By: 26 Victoria B. Riva:{)al^cio, Esq. •Attomeys-for-Plaintiff- 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 10 CASE No. 34-2017-00210560 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I, VictoriaB. Rivapalacio, declare as follows: 3 1. I am one of attorneys of record for the Plaintiff in the above entitled action, and have 4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify 5 competently thereto, except as to the matters stated on iiiformation and belief, and as to such matters I 6 believe them to be true. 7 2. This declaration is being submitted in support of Plaintiff s Opposition to Defendant's 8 Motion for Monetary Sanctions. 9 3. Plaintiff served her first set of discovery requests on July 25, 2017. After Plaintiff granted 10 Defendant's request for an extension, Defendarit served its initial responses on September 12, 2017 and 11 its first set of documents on September 14, 2017. 12 4. On September 21, 2017, Plaintiff sent an eight-page correspondence to Defendant 13 detailing deficiencies in Defendant's responses. On September 22, 2017, Plaintiff sent follow-up 14 correspondence to Defendant detailing further deficiencies in Defendant's responses, attaching a draft of 15 a proposed Belaire-West opt-out notice. 16 5. Plaintiff followed up regularly over the following month, including emails on September 17 26, 28, 29, October 2, 4, 6, 9, 10, 11, 13, 17, 18, 23, 2017 along with a number of voicemail messages. A 18 true and correct copy of an email chain including Defendant's responses of September 28, 2017, 19 October 4, 2017, and October 10, 2017 is attached as Exhibit 1. 20 6. Plaintiff and Defendant finally met and conferred telephonically on October 24, 2017. 21 During that meet and confer session. Defendant maintained two different positions in regard to the 22 various deficient responses: 1) Defendant agreed that the responses were deficient and promised to 23 remedy the deficiencies through the provision of supplemental responses, but would "not provide a 24 timeline as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought 25 was "merits" discovery and stated it would not produce it without Court intervention. A true and correct 26 copy of the confirmatory email exchange regarding the October 24, 2017 meet and confer is attached as 27 Exhibit 2. Notably, Defendant did assert during the telephonic conference that it would willingly 28 produce even that discovery it considered "merits" if the Court declined to sequence discovery. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 1 CASE No. 34-2017-00210560 1 7. The Parties did not have an agreement to allow a sequencing decision to dictate whether 2 Plaintiff s pending discovery requests were entitled to responses from Defendant. Plaintiff has 3 consistently maintained that the discovery sought is relevant to certification and, thus, unaffected by a 4 decision to bifurcate discovery. 5 6. On October 25, 2017, Plaintiff provided Defendant with a revised Belaire notice based on 6 the meet and confer call of the previous day and v^ich Plaintiff Arana approved the following day, on 7 October 26, 2017. A true and correct copy of the email exchange is attached as Exhibit 3. The Parties 8 once again met and conferred telephonically regarding the Belaire notice on October 30, 2017. A true 9 and correct copy of the confirmatory email is attached as Exhibit 4. Defendant did not provide aijy 10 revisions to the Belaire notice until November 9, 2017. Attueand correct copy of the email is attached 11 as Exhibit 5. 12 7. Based on the meet and confer efforts, as well as Defendant's prior delay tactics. Plaintiff 13 determined that the Parties were at an impasse and could benefit from Court intervention. 14 8. Although Plaintiff followed up regularly in the interim and innumerable email 15 correspondence were exchanged, over a month later. Defendant had still yet to provide supplemental 16 responses, produce documents, or provide a date certain as to the anticipated production. Further, no 17 further ground was gained in regard to the discovery that was undeniably in dispute, that Defendant 18 oufright refused to produce without a Court order. The delay forced Plaintiff to file her first set of 19 motions to compel further responses in regard to the deficient discovery responses, which she did on 20 December 1, 2017 and December 4, 2017. Defendant did not provide the promised supplemental 21 responses to Plaintiffs discovery requests until December 6, 2017, with the further document 22 production made thereafter on December 7, 2017. Thus, it was only after Plaintiff incurred the fees and 23 costs associated with drafting and filing the motions that Defendant provided the supplemental 24 responses to a number of the outstanding discovery requests and the associated further document 25 production. 26 9. Plaintiff withdrew the motions on December 15, 2017, roughly one week after Defendant 27 provided its promised responses and five days before Defendant's Opposition was due. Plaintiff 28 reviewed Defendant's discovery responses and wdthdrew the motions the same day Defendant requested PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS ~ 2 CASE No. 34-2017-00210560 1 - for the first time - that Plaintiff withdraw the motions. Plaintiff withdrew the motions for efficiency 2 purposes, so as not to waste the Parties' or the Court's resources organizing a motion as to which 3 discovery still required a court order. Plaintiff sought to refine the motions so that they would address 4 only the discovery that remained outstanding and, also, so Plaintiff could attempt to avoid Defendant's 5 continued dishonest claim that Plaintiff had not exhausted meet and confer efforts. 6 9. Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly 7 and exhaustively meet and confer. Plaintiff sought to meet and confer with Defendant again after 8 withdrawing, per Defendant's request, thefirstset of motions to compel. A true and correct copy of the 9 email correspondence of December 18, 2017 is attached as Exhibit 6. The Parties met and conferred 10 telephonically on December 20, 2017, addressing how Defendant's production altered the dispute 11 detailed in the motions and further exhausting any remaining issues. A true and correct copy of the 12 confirmatory email is attached as Exhibit 7. 13 10. Plaintiff filed the second set of motions to compel further responses on January 17, 2018, 14 pared down to only those discovery requests that Defendant had maintained from its initial responses 15 that it would not provide without court intervention. 16 11. Defendant filed its Motion to Sequence Discovery on January 23, 2018. Defendant's 17 Motion to Sequence addressed the very same discovery at issue in Plaintiff s second set of Motions to 18 Compel. The same day, Defendant requested that Plaintiff withdraw her pending motions to compel. A 19 ttue and correct copy of the email correspondence is attached as Exhibit 8. 20 12. Plaintiff withdrew the second set of Motions to Compel on January 30, 2018, only one 21 week after Defendant filed its Motion to Sequence Discovery. Plaintiff reviewed Defendant's 22 motion, researched its legal positions, and, pursuant to Defendant's request of January 23, 2018, 23 withdrew the motions. Plaintiff s counsel attempted to call Defendant's counsel earlier in the day to 24 alert them to the withdrawal as early as possible and apologized via email correspondence for the 25 inconvenience to Defendant's counsel because of Plaintiff s counsel's inability to withdraw the motions 26 earlier without prejudicing Plaintiff. Attueand correct copy of the email correspondence is attached as 27 Exhibit 9. The delay in the withdrawal was not gamesmanship, but a symptom of Defendant's failure to 28 properly and fully meet and confer regarding its motion to sequence, as well as Plaintiff s counsel's PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 3 CASE No. 34-2017-00210560 1 obligation to Plaintiff to preserve her rights in regard to the at-issue discovery. 2 13. Six (6) days after Plaintiff withdrew her motions, on February 5, 2018, Defendant filed 3 its Motion for Summary Adjudication. 4 14. Defendant's Motion to Sequence Discovery was denied without prejudice on February 5 23, 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the 6 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues. 7 Defendant declined Plaintiff s request to meet and confer regarding Plaintiff s upcoming Motions to 8 Compel Further Responses. A true and correct copy of the email exchange is attached as Exhibit 10. 9 15. Without even a request to meet and confer. Defendant re-filed its Motion to Sequence on 10 March 9, 2018, scheduled to be heard in Department 54 on April 9, 2018. 11 12 // 13 I declare under penalty of perjury under the laws of the State of Califomia that the 14 foregoing is true and correct. Executed this 14th day of March, 2018, at La Jolla, Califomia. 15 16 17 18 LVICFORIA-B^RI- 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 4 CASE No. 34-2017-00210560 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 EXHIBIT #1 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SANCTIONS 5 CASE No. 34-2017-00210560 Victori^Rivagalaci^ From: Victoria Rivapalacio Sent: Friday, October 13, 2017 4:24 PM To: l e e , Stephanie Gail' Cc: l o n g , Timothy J.'; Norm Blumenthal; Kyle Nordrehaug; AJ B; Piya Mukherjee; 'shaun@setarehlaw.com'; 'thomas@setarehlaw.com'; 'scott@setarehlaw.com'; 'farrah@setarehlaw.com'; 'stacey@setarehlaw.com' Subject: RE: Spears v. Health Net of California, Inc. Stephanie, Please respond with a time you are available to speak. Thank you, Victoria From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Wednesday, October 11, 2017 4:11 PM To: l e e , Stephanie Gail' Cc: l o n g , Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee ; 'shaun@setarehlaw.com' ; 'thomas@setarehlaw.com' ; 'scott@setarehlaw.com' ; 'farrah@setarehlaw.com' ; 'stacey@setarehlaw.com' Subject: RE: Spears v. Health Net of California, Inc. Stephanie, On September 28, I was told "next week." On October 4,1 was told "shortly." Yesterday, October 10, you stated "in the next week or so." A conference of counsel to discuss discovery should not be subject to such delays. Further, a prolonged letter-writing campaign is less efficient and less productive than a simple and straight-forward telephone conversation. Accordingly, please provide a time when you are available to meet and confer telephonically tomorrow. Thank you, Victoria From: Lee, Stephanie Gail rmailto:stephanie.lee@orrick.com] Sent: Tuesday, October 10, 2017 3:01 PM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B : Piya Mukherjee ; shaun@setarehlaw.com; thomas@setarehlaw.com; scott@setarehlaw.com; farrah@setarehlaw.com: stacev@setarehlaw.com Subject: RE: Spears v. Health Net of California, Inc. Victoria, I will send a responsive meet and confer letter, which I hope to do in the next week or so. 1 Thank you, Stephanie Stephanie Gail Lee Managing Associate Orricl< Los Angeles (w) T+1-213-612-2374 Stephanie.lee @orricl<.com orrick From: Victoria Rivapalacio [mailto:victoria@bamlawca.c6m1 Sent: Tuesday, October 10, 2017 3:03 PM To: Lee, Stephanie Gail Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee ; shaun@setarehlaw.com; thomas@setarehiaw.com; scott@setarehlaw.com; farrah@setarehlaw.com; stacev@setarehlaw.com Subject: RE: Spears v. Health Net of California, Inc. Stephanie, Following up. Please respond. Thank you, Victoria From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Monday, October 09, 2017 5:51 PM To: 'Lee, Stephanie Gail' Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee ; 'shaun@setarehlaw.com' Subject: RE: Spears v. Health Net of California, Inc. Stephanie, 1 write to follow up. Please provide a time this week when you are available to meet and confer. Thank you, Victoria From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Friday, October 06, 2017 2:07 PM To: 'Lee, Stephanie Gail' Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee ; 'shaun@setarehlaw.com' Subject: RE: Spears V. Health Net of California, Inc. Stephanie, Please provide a time during the coming week when you are available to meet and confer regarding Defendant's discovery responses and the opt-out notice. Thank you, Victoria ^ From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Wednesday, October 04, 2017 2:36 PM To: 'Lee, Stephanie Gail' Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B : Piya Mukherjee : 'shaun@setarehlaw.com' Subject: RE: Spears v. Health Net of California, Inc. Thank you for the extension to December 1, 2017, Stephanie. Are you available later this week for a call regarding Defendant's discovery responses and the opt-out notice? Regards, Victoria From: Lee, Stephanie Gail [mailto:stephanie.lee@orrick.com] Sent: Wednesday, October 04, 2017 1:07 PM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee ; shaun@setarehlaw.com Subject: RE: Spears v. Health Net of California, Inc. Victoria, I apologize for the delay in getting back to you. I understand that you are concerned about timing. So that the parties may have adequate time to meet and confer. Defendant is amenable to granting Plaintiff a 30-day extension of time - to December 1, 2017 - within which to file any necessary motion to compel Defendant's further responses to her first sets of document requests, requests for admissions, special interrogatories and employment law form interrogatories. In the meantime, I anticipate getting back to you shortly on the substance of your meet and confer correspondences. Thank you, Stephanie Stephanie Gall Lee IVIanaging Associate Orricl< Los Angeles (5j T+1-213-612-2374 Stephanie,lee@orrick.com orrick From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Monday, October 2, 2017 3:32 PM To: Lee, Stephanie Gail Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee ; shaun@setarehlaw.com Subject: RE: Spears v. Health Net of California, Inc. Stephanie: Following up. Please provide a time when you are available to meet and confer. Thank you, Victoria From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Friday, September 29, 2017 2:33 PM To: 'Lee, Stephanie Gail' Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee Subject: RE: Spears v. Health Net of California, Inc. Stephanie, I look forward to your providing me with a time and date to discuss this discovery letter that I sent you last week, on September 21, 2017. My compel date is October 27, 2017 and the large number of deficient responses require no further delay given the time I will need to prepare and file the motion. Thank you, Victoria From: Lee, Stephanje Gail [mailto:stephanie.lee@orrick.com] Sent: Friday, September 29, 2017 2:10 PM To: Victoria Rivapalacio Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee Subject: RE: Spears v. Health Net of California, Inc. Victoria, I am unavailable at that time. As mentioned, we are aiming to get back to you sometime next week. Thank you, Stephanie Stephanie Gail Lee Managing Associate Orrick Los Angeles © T+1-213-612-2374 stephanie.lee@orrick.com orrick From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Friday, September 29, 2017 1:19 PM To: Lee, Stephanie Gail Cc: Long, Timothy J. ; Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Piya Mukherjee Subject: RE: Spears v. Health Net of California, Inc. Stephanie, I will call you Monday, Oct. 2, 2017 at 2 p.m. unless I hear from you that another time works better. Thank you, Victoria From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Thursday, September 28, 2017 2:10 PM To: 'Lee, Stephanie Gail' Cc: 'Long, Timothy J.' ; Norm Blumenthal ; Kyle Nordrehaug : AJ B ; Piya Mukherjee Subject: RE: Spears v. Health Net of California, Inc. Stephanie, Thanks for getting back to me. I am available Monday of next week at 2 pm. Does that work for you? I can call you then. Regards, Victoria From: Lee, Stephanie Gail [mailto:stephanie.lee@orrick.com] Sent: Thursday, September 28, 2017 1:35 PM To: 'Victoria Rivapalacio' Cc: Long, Timothy J. Subject: Spears v. Health Net of California, Inc. Victoria, I understand you reached out to Tim. He is out of pocket, but we'll look to getting back to you sometime next week. Thank you. Stephanie Stephanie Gail Lee Managing Associate Orrick Los Angeles ® T +1-213^12-2374 stephanie.lee@orrick.com orrick NOTICE TO RECIPIENT | This e-mail is meant for only the intended recipient of the transmission, and