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1 BLUMENTHAL N O R D R E H A U G BHOWMIK DE BLOUW LLP
Norman B.Blumenthal (State'Bar #0'68687)
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• 2 Kyle R.,Nordrehaixg (State:Bai::#205975)
Aparajit BHbwmik (State-Bar.#248066)
Victoria B;.Rivapalacio (State Bar #275115)
F'LED/ENDORSED
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, Jefeey S. Herman (State^
4. 2255 Calle eiara
La Jolla,GA 92037
5 Teleplione:-(858)551-1223
6
Facsiinile: (858)551-1232
' By:
FEB 1 5 20(9
H. Portalan73
Oeputy Cte&
Attomeys for Plaintiff [ .
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
ANT'S|MOTION AS TO WHY SPEARS' CASE SHOULD NOT
' PROCEED-AS A PAGA'IEPR^'SEN^^
' ' CASE No. 34-2017-00210560
1 TABLE OF AUTHORITIES
Z 2
1•
Pages:
5"'. • 3 Cases; -riZ ^"-A
li ',
4. Alcantar V-Hobart Service, •
800 F:3d 1047 (9th Cir 2015) 5-6
5
z• Alt Star Seedv. Natiohwide'Agribusiness Ins. Co.,
-^>^- 6 , 2013-;U.S. Dist. LEXIS' 64587 15
'
7' Amtower v.f'PhotonDynamics, Inc.
; - (2008) 158 CaLApp.4th 1582 . . : 4
>zk-Z 8.
Arias v. Superior Court:
''ZZ .. 9 (2009) 46.Cal. 4th 969 • : 2-3, 5, 7-9,12
zz .•
''^.S' .., •-'
10: Bronco Wine Co. V. Frank A. Logoluso Farms
(1989) 214 Cal.App.3a699' ;... 9, 11-12
.1;. •.
)^.'-];•<••.-.' 11
Brown V. Am. Airlines, Inc.,
12 2015 U.S. Dist. LEXIS 150670 (CD. Cal. Oct. 5,2015) 8
13 Brown v. Ralphs Grocery Co.
^•
, *•
.
Z'"
V •
V, '•
14
15
17
(2018) 28 Cal. App. 5th 824...:
Cardenas v. McLane Foodservic'es,'Inc.,
796 F. Supp: 2d 1246,1260 (CD. Cal. 2011)
16 Carrington v. Starbucks Corporation
(2018)'30 Cal. App. 5th-504 ;;
6
5
1-4, 13, 15
Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC
18 (2015) 61 C a l M 8 3 0 . . . . . . . . . . . . . . . , 4
v'.
19 Green v. Bank ofAm., N.A.,
634 Fed. Appx. 188,191 (9th Cir. 2015). 1,5-6
20
.
> '• ' 21
Hibbs-Rines v. Seagate techs.,
2009 U.S. Dist. LEXIS 19283
22 Huff V. Securitas Sec. Sews. USA, Inc
8
(2018) 23 Cal.App.5th 745: 3
23-
Iskanian v. • CLS Transportation Los Angeles, LLC
-;,'.24 (2014) 59 Cal.4th 349 .3,8,12
tZ'^. -• ;.;25 Jordan V. NCI Group, Inc., '
2017 WL' 1821122 (CD; Cal. Mar. 22,2017) 7
y 26 ,
Mejia V. 99 Cents Only Stores; ,
''. 27' 2018 Cal. Super. CEXIS 3082 (LASC April-6, 2018) 7
> 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S li40TI0N AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
CASE No. 34-2017-00210560
'%' 1 Mendoza V: Nordstrom, Inc.
r.' (2017) 2 Cal. 5th 1074 2,7
Y'. • 2
J. NewYork Times Co. v. Superior Court
•1''.'
3 - (2005) 135.Cal.App.4th 206 4
4 Ochoa-Hemahdez v Cjaders Foods, Inc.,
r,
"' '
• 5
6
2010 U;S. Dist LEXIS 132774
. • f . - ' . '
Plaisted v. Dress Barn, Inc., . .
, ,.
"
7 South Bay Chevrolet V. General Motors Acceptance Corporation
8
"' (1999) 72 Cal.App.4th 861
Syncora Guarantee Inc. v. (EMC Mortgage Corp.,
.
: 2012 U.S. Dist. LEXIS; 1'35599 (CD. Cal. Sept. 20,2012) . .^
.,
8
10-12
8
\ f' 9 2013 U.S. Dist. LiBXIS 41770 15
10 Tsengv. Nordstrom, Inc.,
2016 U.S. Dist LEXIS 176990 (CD. Cal. Dec. 19,2016) 7
11
Williams v. Sttperior Court
12 (2017) 3'Cal.5th 531 3
13 Wilner v. Sunset Life Insurance Co.
•.
(2000) 78 Cal.App.4th 952 11-12
14
Zackariav. Wal-Mart Stores, Inc.,
15 2015 WL 6745714 (CD. Cal. Noy:3,2015). 7-8
•' ,
?•'
16 Zayersv. KiewitInfrastructure W. Co.,
17
2017 U.S. Dist. LEXiS 216715 ,(CD. Gal. Nov. 9,2017) 8
• 1,
•
18 Statutes;
19 Bus.:& Prof Code § 17200. 12
20 Cal. Labor Code § 226 6
21 Cal. Labor Code § 2699.3 .' 1, 5, 7
•-C.-' 22
' -- 23
24-
Z' - •
: 25
• 26
I"" • -27
28 PLAmTffF'S OPPOSITION TO DEFENDANT'S MOTION^AS TO WHY SPEARS' CASE SHOULD NOT
' PROCEED AS A P % A R£PB£SEW
CASE No. 34-2017-00210560
1 1. INTRODUCTION
2 Plaintiff has followed all the required steps prescribed by the Private Attomey General Action
3 ("PAGA") to be deputized by the State of Califomia to" seek the civil penalties Defendant Healthnet of
4 Califorma, Inc. ("HNCA" or "Defendant") owes for the Labor Code violations identified in Plaintiffs notice
5 that Plaintiff is able to prove at trial. Defendant's defense that Plaintiff cannot manage to prove these
6 violations at trial is disingenuous and premature. Plaintiff cannot divest Defendant of their affirmative
7 defense without affording Defendant fhe due processrightsof attacking those defenses under the procedural
8 framework of a dispositive motion or trial. Similarly, Defendant's "motion as to why Spears' case should not
9 proceed as a PAGA representative action" (Defendant's "Motion") violates Plaintiff s due process to the same
10 procedural safeguards.
11 Defendant's claim of "immanageability" at this early stage of the lawsuit, before expert designation
12 dates have been set and before the close of discovery, is pure conjecture. Such premature speculation falls far
13 short of meeting Defendant's high burden required by summary judgment of proving that PlaintifPs PAGA
14 claim fails as a matter of law. Indeed, the Califomia Court of Appeal in Carrington v. Starbucks Corporation
15 (2018) 30 Cal. App. Sth 504 recently approved a trial court's denial ofthe same kind of motion "summary
16 judgment or adjudication in disguise" on the grounds that it was procedurally defective. Id. at 509.
17 Defendant's motion should also be denied on substantive ground as well. The PAGA Notice Plaintiff
18 provided to Labor Workforce Development Agency ("LWDA") more than satisfies the requirements set forth
19 in Califomia Labor Code § 2699.3. The case law interpreting PAGA Notice requirements makes clear that
20 "written notice is sufficient so long as it contains some basic facts about the violations, such as which
21 provision was allegedly violated and who was allegedly harmed." (Green v. Bank of Am., N.A., 634 Fed.
22 Appx. 188, 191 (9th Cir. 2015).) Here, Plaintiff met the specificity requirements by including in the PAGA
23 Notice the "basic facts about the violations" and by attaching thereto a tme and correct copy of Plaintiff s
24 entire complaint withfiirtherdetails of the allegations against Defendant. As a result. Plaintiff may lawfiilly
25 pursue civil penalties for Defendant's violation of the meal and rest period requirements of the Califomia
26 Labor Code, as well as Defendant's failure to pay overtime wages by miscalculating th regular rate of
27 Defendant's employees. These allegations are clearly specified in great detail aU throughout the originally
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
1 CASE No. 34-2017-00210560
1 filed Complaint that was attached to Plaintiffs PAGA Notice. (Exhibit 1: Plaintiff Complaint, at 9-11,
2 14-17, 21-23, 32, 36, 37,46, 56-71.)'
3 Defendant's argument that Plaintiff's PAGA claim requires an "insurmountable hurdle" of proving
4 violation for 3,700 aggrieved employees fails on multiple levels. First, Carrington involved an analysis of
5 27,146 employees, which represented just one fourth of all aggrieved employees in that matter. (Carrington,
6 supra, 30 Cal.App.5th at 515-516.) Second, Defendant erroneously assumed that all 3,700 aggrieved
7 employee are implicated by the meal aspect of Plaintiffs PAGA claim. Plaintiff, however, is preparing for
8 trial based on those aggrieved employees who workedfiromthe start of the PAGA period (April 5, 2016) to
9 December 31, 2016, when Defendant revamped their payroll system to automaticallyflagand pay for meal
10 period violations. There are only 2,559 employees in this group, andfiromthis subset, only employees who
11 worked at least six hours in a shift will be considered. Had Defendant perfonned any discovery on the scope
12 of the PAGA claim before filing this Motion unauthorized by any Code of Civil Procedure or Rule of Court,
13 the deficiencies underlying Defendant's Motion would have been glaringly apparent. Similarly, as to the rest
14 period claim. Plaintiff is still in the process of analyzing the data, which is further proof that Defendant's
15 motion is speculative and premature.
16 Defendant's Motion must also fail because it is premised on a "manageability" requirement that does
17 not exist for PAGA actions. (See Arias v. Superior Court (2009) 46 Cal. 4th 969, 975.) Defendant failed to
18 comply with the mandate ofthe Califomia Supreme Court in that the class certification requirements do not
19 apply to PAGA claims. Id. at 975. Defendant's failure to understand this holdmg of Arias is shown by
20 Defendant's filing of this Motion as part and parcel of the class certification briefing schedule set by the Court.
21 Indeed, the complete absence of any attempt by Defendant to meaningfully distinguish Arias or decouple this
22 Motion from the class certification briefing scheduUng and hearing is contrary to Califomia law. (See
23 Mendoza v. Nordstrom, Inc., (2017) 2 Cal. 5th 1074, 1079 [ ["PAGA authorizes a representative action
24 without the need for class certification."].)
25 The Court would abuse its discretion by granting Defendant's request to dismiss the State of
26 California's penalty claims brought by under PAGA as a denial ofthe State's constitutional due precess rights
27
28 ' All Exhibits are attached to the Declaration of Jeffrey S. Herman filed concurrently herewith.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
2 CASE No. 34-2017-00210560
1 to litigate this claim before the scope of trial testhnony is narrowed by expert discovery that has et to
2 commence, as well as this Court's other pretrial procedures, including but not limited to, exchanging exhibit
3 lists (Local Rule 2.98), preparing a joint witness list (Local Rule 2.99) and filuig a joint statement ofthe case
4 (Local Rule 2.99.02). The wide array of tools available for a court to manage a complex case do not include
5 or even contemplate dismissal ofthe State's claims without due process. (See Huff v. Securitas Sec. Servs.
6 USA, Inc. (2018)23 Cal.App.5th 745; ^no^, supra, 46 Cai. 4th; Iskanian v. CLS Transportation Los Angeles,
7 LLC (2014) 59 Cal.4th 349; Williams v. Superior Court (2017) 3 Cal.5th 531.) Defendant ignores these
8 appropriate trial management procedures and instead requests relief unsupported by any Califomia Court in
9 a motion unauthorized by any Code of Civil Procedure, Rules of Court. In no event could the State's due
10 processrightsbe preserved by accepting as tme Defendant's exaggeration of the ability to present a defense
11 to the same kind of claims that were easily tried regarding tens of thousands more employees. (See Carrington,
12 supra.) For aU these reasons as set forth more fully below. Plaintiffs respectfully requests the Court deny
13 Defendant's Motion in its entirety,
n. ARGUMENT
14
A. Defendant Has Concocted An Unauthorized Motion Due To Defendant's Inability To
15 Correctly Seek Their Requested Relief
16 The Califomia Code of Civil Procedure has specifically outlined the following ways Defendant can
17 challenge Plaintiffs PAGA cause of action before trial: (1) through a motion to strike, (2) through a motion
18 for judgment on the pleadings or (3) by way of a dispositive motion. Defendant's Motion is none of these,
19 yet Defendant nonetheless filed this Motion in an effort to bypass the procedural safeguards afforded to
20 Plaintiff. The reasons for Defendant's actions are simple:
21 First, Defendant blew the motion to strike filing deadline, which required Defendant to file such a
22 pleading challenge as Defendant's first responsive pleading. (CCP. § 435(b)).
23 Second, a motion for judgment on the pleadings can only be brought by Defendant i f there is a
24 jurisdictional challenge or on the grounds "that the complaint does not state facts sufficient to constitute a
25 cause of action against the defendant." (C.C.P. § 438.) Defendant could never meet this burden of proof
26 because the supporting evidence "shall appear on the face ofthe challenged pleading or from any matter of
27 which the court is requured to take judicial notice." (C.C.P. § 438(d).) Here, Defendant's Motion relies
28 exclusively on evidence extrinsic to the pleadings (such as deposition testimony and corporate representative
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
3 CASB No. 34-2017-00210560
1 declarations), none of which is judicially noticeable.
2 Third, Defendant has not filed the instant motion as a motion for summary judgment because
3 Defendant wants to deprive Plaintiff of her 75-day statutory notice (CCP. § 437c(a)), and Defendant knows
4 it is unable to meet the high burden of proof (C.C.P. § 437c(c) ["no triable issue of material fact"].) This
5 would be akin to Plaintiff challenging one of Defendant's affirmative defenses on a regular motion, without
6 appropriate notice or sufficient evidence, to have an easier burden of proof Indeed, the Court already
7 rejected both of Defendant's attempts at summary judginent, which included attempts to summarily
8 adjudicate Plaintiff's PAGA action (See Request for Judicial Notice 1 p. 9-10, 2 p. 8-11), and Defendant
9 presents no new evidence to warrant another summary judgment motion. (See Even Zohar Construction &
10 Remodeling, Inc. v. Bellaire Townhouses, Z,iC(2015) 61 Cal.4th 830, 839; NewYork Times Co. v. Superior
11 Court (2005) 135 Cal.App.4th 206, 212-213.) Because Defendant knows they would be unable to file, let
12 alone win, another summary judgment motion. Defendant is attempting to obtain summary judgment under
13 the guise of this imauthorized motion. In order vvords, because the proper procedural vehicles were unavailable
14 to Defendant, they decided to shortcut procedural due process. The Court should not tolerate the type of
15 procedural shortcuts attempted by Defendant here. "[T]he disadvantages of such shortcuts are obvious.
16 They circumvent procedural protections provided by the statutory motions or by trial on the merits;
17 they risk blindsiding the nonmoving party; and, in some cases, they could infringe a litigant'srightto
18 a jury trial" (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1594 [regarding the use of
19 a motion in limine as a disguised motion for summary judgment].) "The better practice in nearly every case
20 is to afford the litigant the protections provided by trial or by the statutory processes." Id.
21 Finally, Defendant's attempt to circumvent the summary judgment procedurefliesin the face of the
22 Califomia Court of Appeal m Carrington, supra, 30 Cal. App. 5th. There, the defendant (Starbucks) filed
23 a pre-trial "motion regarding trial of representative claim," claiming, exactly as Defendants are claiming
24 here, that, "a representative PAGA action was not appropriate because no uniform policy or practice could
25 explain why employees took a late break; as such, individualized inquiries into each late meal break were
26 required." Id. at 508-509. The court summarily denied Starbucks' mption "finding it was one 'for summary
27 judgment or adjudication in disguise,' and Starbucks had failed to comply with the procedural
28 requirementsforsummaryjudgmentmotions.(See,e.g.,CodeCiv. Proc, §437c.)" Id. at 509. This Court
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
4 CASE No. 34-2017-00210560
1 should foUow suit and deny Defendant's clear attempt to deprive Plaintiff of her due processrightsand the
2 procedural safeguards afforded to Plaintiff by the Code of Civil Procedure.
3 B. Plaintiff's LWDA Notice Sufficiently Describes The Facts And Theories Supporting
Defendant's Violations
4
The PAGA Notice Plaintiff sent to the LWDA more than satisfies the requirements of Cal. Labor Code
5
§ 2699.3. According to controlling precedent, "that stamte requires the employee to give written notice of the
6
aUeged Labor Code violation to both the employer and the Labor and Workforce Development Agency, and
7
the notice must describe facts and theories supporting the violation." (Arias, supra, 46 Cal.4th at 981.) "[T]he
8
plain meaning" of the phrase "'facts and theories to support [the] alleged violation'" "suggests that [the
9
pjlaLntiffs were required to put forward sufficient facts to support their claims of labor violations...."
10
(Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246,1260 (CD. Cal. 2011).) hi other words, "a
U
written notice is sufficient so long as it contains some basic facts about the violations, such as which
12
provision was allegedly violated and who was allegedly harmed." (Green, supra, 634 Fed. Appx. 188
13
[citing Alcantar v. Hobart Service 800 F.3d 1047 (9th Cn. 2015).].)
14
In Green, supra, the plaintiffs PAGA noticed was sufficient when it "contained: (1) the specific statute
15
Bank of America allegedly violated, (2) facts about what position plaintiffs held, (3) a statement that plaintiffs
16
could use a seat in their position, and (4) a specific identification of who was allegedly harmed." Id. "These
17
facts put the LWDA and Bank of America on notice about the nature of the plaintiffs' claims, namely, that
18
Bank of America was not providing chairs for plaintiffs as Califomia law requires." Id.
19
Additionally, in McLane Foodservices, the plaintiffs first amended complaint attached a copy of their
20
PAGA Notice, which stated, "Plaintiffs' counsel is representing 'a group of tmcker drivers who worked for
21
McLane Food Service Inc.' and the letter is 'notice, and arequest, pursuant to Califomia Labor Code § 2699.3
22
that [the LWDA] investigate the claims in this impending civil action.'" (McLane Foodservices, supra, 796
23
F.Supp.2d. at 1259. "In the letter, counsel described the action as being 'brought on behalf of thirty-seven
24
tmck drivers,' whom it then names. [] The letter also notes that [the defendant] employed Plaintiffs "as tmck
25
drivers out ofits Southern Califomia distribution center." Id at 1259. Based on the foregoing, the court found
26
the plaintiffs' PAGA notice to be sufficient. Id. At 1260-1261.
27 Here, Plaintiff's PAGA Notice contains facts and theories to put the LWDA and Defendant on notice
28 about the nature of Plaintiff s claims. Specifically, PlaintifFs April 5, 2017 letter to the LWDA stated:
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
5 CASE No. 34-2017-00210560
1 Plaintiff was employed by Defendant in CaUfomiafiromDecember of 2013 to October of 2016
as a nonexempt employee entitled to the legally required meal and rest breaks and payment for
2 all time worked under Defendant's control, including overtime worked. Defendant, however,
unlawfully failed to record and pay Plaintiff and other aggrieved employees for all of their time
3 worked, uicludmg overtime wages, and for all of their missed meal and rest breaks. As a
consequence of the aforementioned violations. Plaintifffiirthercontends that Defendant failed
4 to provide accurate wage statements to her, and other aggrieved employees, in violation of
Califomia Labor Code section 226(a). Additionally, Plaintiff contends that Defendant failed
5 to comply with Industrial Wage Order 7(A)(3) in that Defendant failed to keep time records
showing when Plaintiff began and ended each shift and meal period. Said conduct, in addition
6 to the foregoing, violates Labor Code §§ 201, 202, 203, 204, 226(a), 226.7, 510, 512, 558,
1194,1197, 1197.1,1198, Violation ofthe applicable hidustrial Welfare Commission Wage
7 Order(s), and is therefore actionable under Califomia Labor Code section 2699.3.
8 (Exhibit 2. PAGA Notice at p. 1.)
9 In addition. Plaintiffs PAGA Notice attached a true and correct copy of Plaintiffs complete
10 Complaint, which detailed the fact and theories which supported Plaintiffs allegations against Defendant and
11 the details ofthe specific work performed by Plaintiff, as well as the illegal practices used by Defendant.
12 Despite the foregoing, Defendant brazenly claims Plaintiff s PAGA Notice was insufficient. As stated
13 above, "written notice is sufficient so long as it contains some basic facts about the violations, such as
14 which provision was allegedly violated and who was allegedly harmed." (Green, supra, at 1260), which
15 Plaintiffhas clearly accomplished. There is "no authority suggesting that PAGA's requirement that employees
16 provide in their notice 'facts and theories to support [an] alleged violation' necessitates inclusion of every
17 potential fact or every future theory." (McLane Foodservices, Inc., supra, 796 F. Supp. 2d at 1260.)
18 Finally, Plaintiffs PAGA Notice is a far cry from instances where the court found PAGA Notices
19 uisufficient. (See Alcantar, supra, 800 F.3d 1047 ["the notice did not allow the LWDA 'to intelligently assess
20 the seriousness of the alleged violations' or give the employer enough information to determine what policies
21 or practices are being complained of so as to know whether to fold or fight.."]; Brown v. Ralphs Grocery Co.
22 (2018) 28 Cal. App. 5th 824,837-838 ["a string of legal conclusions that parroted the allegedly violated Labor
23 Code provisions.... did not give sufficient information for the LWDA to assess the seriousness of the alleged
24 violations...."]) Unlike in Alcantar and Brown, Plaintiffs PAGA Notice gave sufficient information for the
25 LWDA to assess the seriousness ofthe alleged violations, and allowed Defendant to determine what policies
26 or practices were at issue tb have an opportunity to cure.
27 ///
28 ///
. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
6 CASE No. 34-2017-00210560
1 C. Defendant's Manageability Argument Lacks Merit And Is Based On A False Premise
1. Manageability Is Not A Requirement For PAGA Actions
2
Defendant's Motion requests the Court to write out of the law the Califomia Supreme Court's holding
3
in Arias v. Superior Court (2009) 46 Cal. 4th 969, which specifically stated, "those [class action]
4
requirements need not be met when an employee's representative action against an employer is seeking
5
civil penalties under the Labor Code Private Attomeys General Act of 2004." Id. at 975. Indeed, buried
6
in a footQote in Defendant's motion is the concession that "Arias makes clear that PAGA claims need not
7
satisfy class action requirements." (Motion at p. 11, fn 3.) Nevertheless, Defendant's entire motion
8
unsupportedly contends that the PAGA claim of the State of Califomia can be denied on the ground that
9
litigation would be "unmanageable" by relying on holding related to class actions - not PAGA actions. Id.
10
(See also Mendoza, supra, 2 Cal. 5th at p. 1079 ["PAGA authorizes a representative action without the need
11
for class certification."].) "The court is persuaded that manageability is not a basis to strike a PAGA
12
action." (Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3 082 (LASC April 6,2018); citing Zackaria
13
V. Wal-Mart Stores, Inc. 2015 WL 6745714 (CD. Cal., Nov. 3, 2015), at "^6 ["the court finds defendant's
14
manageability argument inconsistent with PAGA's purpose and statutory scheme."].) "Holding that
15
individualized liability determinations make representative PAGA actions unmanageable, and therefore
16
untenable, would impose a barrier on such actions that the state law enforcement agency does not face when
17
it litigates those cases itself" Id.
18
Further, in Tseng v. Nordstrom, Inc 2016 U.S. Dist LEXIS 176990 (CD. Cal. Dec. 19, 2016), the
19
court similarly rejected manageability as a basis to strike a complaint:
20 In light of PAGA's purpose to serve as a "law enforcement action designed to benefit the
public and not to benefit private parties,"... the Court is persuaded by the reasoning of cases
21 declining to impose a manageability requirement on PAGA clanns. Class actions are designed
"to allow a collection of individual plaintiffs to sue the same defendant in one consolidated
22 action for the sake of convenience and efficiency," ... "Holding that individualized liability
determinations make representative PAGA actions unmanageable, and therefore untenable,"
23 would be . inconsistent with PAGA's purpose, because it "would impose a barrier on such
actions that the state law enforcement agency does not face when it litigates those cases itself"
24
(Id. at '•IS; see a\so Jordan v. NCI Group Inc., 2017 WL 1821122 (CD. Cal., Mar. 22, 2017) at =^5 ["The
25 Courtfindsthat PAGA claims do not have a manageability requirement."]
26 Because Arias and its progeny hold that a representative PAGA plaintiff need not satisfy any ofthe
27 class action requirements. Defendant cannot plausibly argue that one particular class action requirement of
28 manageability must be proved in order to maintain a PAGA action
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
7 CASE No. 34-2017-00210560
1 2. Individualized Analyses Do Not Make Plaintiff's PAGA Action Unmanageable
2 Notwithstandmg the fact that "manageability" is not a requirement for PAGA actions, Defendant's
3 entire "manageabiUty" argument is predicated on the false claim that the individual analyses of the aggrieved
4 employees would render Plamtiffs PAGA action "unmanageable." Defendant's argument is contrary to
5 controllmg case law. "To hold that a PAGA action could not be maintained because the individual
6 assessments regarding whether a violation had occurred would make the claim unmanageable at trial
7 would obliterate [the purpose of PAGA], as every PAGA action in some way requires some
8 individualized assessment regarding whether a Labor Code violation has occurred. (Plaistedv. Dress
9 Barn, Inc., 2012 U.S. Dist. LEXIS 135599, '•ia(C.D.^ Cal. Sept. 20, 2012); see also Brown v. Am. Airlines,
10 Inc., 2015 U.S. Dist. LEXIS 150670, '•3 (CD. Cal. Oct. 5, 2015) ["every PAGA action in some ways
11 requires some individualized assessment regarding whether a Labor Code violation has occurred."].)
12 The Court mZayers v. KiewitInfrastructure W. Co., 2011 U.S. Dist. LEXIS 216715 ( CD. Cal. Nov.
13 9, 2017) recently opined on this issue. There, the Court found "[the djefendant's manageability argument
14 inconsistent with PAGA's purpose and statutory scheme." Id (citing Plaisted, supra, 2012 U.S. Dist. LEXIS
15 135599.) To the contrary, "PAGA contemplates civil penalties for' a violation' of the Califomia Labor Code...
16 which will often require individualized assessments of liability." Id. at '•'29 (citing Hibbs-Rines v. Seagate
17 Techs., 2009 U.S. Dist. LEXIS 19283 at 11 [ "defendants overtook that civil penalties under PAGA are only
18 assessed forViolations for the Califomia Labor Code. Plaintiff will have to prove Labor Code violations with
19 respect to each and every individual on whose behalf plaintiff seeks to recover civil penalties imder PAGA."].)
20 Further, "[t]he puipose of PAGA 'is to incentivize private parties to recover civil penalties forthe govemment
21 that otherwise may not have been assessed and collected by overburdened state enforcement agencies.'" Id.
22 at *30 (quoting Ochoa-Hernandez v Cjaders Foods, Inc., 2010 U.S. Dist. LEXIS 32774 (N.D. Cal. 2010).)
23 Holding that individualized liability determinations make representative PAGA actions
24 unmanageable, and therefore untenable, would impose a barrier on such actions that the state law
25 enforcement agency does not face when it litigates those cases itself." Id. (citing Iskanian, supra, 59
26 Cal.4th at 3 80; Arias, supra, 46 Cal. 4th at 973.) "Imposing such a requirement, found nowhere in PAGA
27 itself and not imposed upon the government, would 'obliterate [the] purpose' of representative PAGA
28 actions." Id. at "'31 (quoting Zackaria, supra, 142 F. Supp.3d at 959.) Accordingly, the Zayers Court
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
8 CASE No. 34-2017-00210560
1 decline[d] to departfi-omthe holdings of other courts in Califomia and m this District, which do not impose
2 a manageabiUty requirement on a representative PAGA claim." Id.
3 3. Defendant's Pre-Proposition 64 UCL Authority Is Unpersuasive In This PAGA
Action
4
The fact that Defendant had difficultly finding case law to support its argument regarding
5
manageability in PAGA actions speaks volumes. (See Motion at 11:19-20 ["pubHshed case law on the
6
manageability requkement for PAGA representative actions is limited...."].) Instead, Defendant cited Pre-
7
Proposition 64 UCL authority which carries no precedential weight in light of the ample authority cited herein
8
regarding PAGA representative actions, as well as the critical distinctions between the instant matter and
9
Defendant's cited authority.
10
In Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699, the plaintiff sued a
11
winery operator on a breach of contract theory. The plaintiff also sought restitution on behalf of itself and other
12
grape growers under contract with the defendant as compensation for unfair business practices. M at 715.
13
The trial court awarded restitution to several nonparty grape growers. The Court of Appeal concluded the
14
procedure the trial court used to grant awards to non-parties raised "serious fimdamental due process
15
considerations." Id. at! 17. The court noted the determination of whether the business practice was unfair was
16
complex, and the potential amount of restitution per grower was significant and not determined by an
17
automatic calculation. Id. at 720. Although the court issued restitution awards nonparty grape growers,
18
contracts of other nonparty growers were introduced. M at 716, 718. Disputes arose because the defendant
19
asserted 12 of the growers had already released then claims. Id. at! IS. Under those circumstances, the court
20
concluded the trial court abused its discretion in denying the defendant's pretrial motion to strike claims
21
asserted on behalf of nonparty growers or require that a class action procedure be utilized. Id. &t 715, 721.
22
Bronco Wine does not mandate an outcome m this case. The case involving disputes between different
23
competitors is much different than this case involving employees who all worked for the same employer.
24
Further, CaUfomia Supreme Court authority explicitly holds that an aggrieved employee need not meet class
25
action requirements to bring a PAGA claim to seek civil penalties for violations of other aggrieved employees.
26
Arias already rejected claims that such PAGA claiins without class certification would create due process
27
problems - a primary concem of the court in Bronco Wine. Moreover, the court in Bronco Wine was
28
concemed with the difficulty of making awards of restitution under the UCL. Under PAGA, a plamtiff may
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
9 CASE No. 34-2017-00210560
1 only pursue civil penalties on behalf of himself and other aggrieved employees. Cases involving restitution
2 under the UCL are also distinguishable because PAGA gives courts equitable discretion to adjust penalties
3 that otherwise would be unjust, arbitrary and oppressive, or confiscatory. (Lab. Code,§ 2699, subd. (e)(2).)
4 PAGA penalties are also completely unlike awards for restimtion imder the UCL because PAGA
5 penalties do not go mainly to the injured employee. Rather, the govemment gets the majority of civil penalties
6 in the form ofthe 75% that goes to the LWDA with only 25% going to the "aggrieved employees." (Lab.
7 Code, § 2699(i)). The distribution results m a program that mostlyfimdsthe govemment rather than a private
8 compensation system, consistent with the Legislative uitent in passing the Act in response to the shortfall in
9 fimding that affected governmental agencies traditionally prosecuted these claims on an employee by employee
10 and pay period by pay period basis. Further, civil penalties under PAGA is that representative PAGA actions
i l can recover only statutory penalties in fixed amounts per violation. (Lab.Code § 2699(f).) Accordingly,
12 unmanageabiUty of determining individualized restitution awards does not apply to PAGA claim in the same
13 way as those determinations affected representative UCL claims before Proposition 64.
14 South Bay Chevrolet v. General Motors Acceptance Corporation (1999) 72 Cal.App.4th 861 ("South
15 Bay") - also cited by Defendant - similarly concemed representative claims under the UCL prior to
16 Proposition 64 brought by a business, not an individual consumer or employee. There, the plaintiff, an
17 automotive dealership, asserted an individual claim for unfair business practices on behalf of other Califomia
18 dealerships, as well as class claims. At the close of the plaintiffs case at trial, the court granted a motion for
19 judgment on the representative claim. The Court of Appeal found the trial court properly concluded the
20 plaintiff did establish other dealerships were "similarly situated as to their likelihood of deception," or that
21 any other dealership was likfely to be deceived by the defendant's practices. Id. at 894. Thus, the trial court
22 'properly determined it could not make any determination that [defendant] was Uable statewide." Id. at p. 895.
23 The Court of Appeal noted the record demonstrated there were disparate ways in which the dealerships
24 understood the defendant's practices, and based upon this record, the trial court acted within its discretion in
25 concluding there was an insufficient level of unifonnity to allow representative treatment. Id. at p. 897.
26 South Bay is inapplicable to PAGA, largely due to the distinctions between restitution and civil
27 penalties described above. Another critical difference between South Bay and the instant inatter is that the
28 trial court in South Bay dismissed the representative UCL claim only after the plaintiffs presentation of
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
10 CASE No. 34-2017-00210560
1 evidence at a bench trial revealed the absence of a statewide claim. Thus, the plaintiff had the opportunity to
2 prove there were similarly situated dealerships, but failed to do "so. In this case, however. Defendant is
3 attempting to deprive the State of Califomia of the due process right to a trial that was afforded to the
4 plaintiff in South Bay.
5 The last Pre-Proposition 64 case cited by Defendant, Wilner v. Sunset Life Insurance Co. (2000) 78
6 Cal.App.4th 952, is similarly unavailing. In Wilner, the plaintiff sued her insurance company and one ofits
7 agents for various forms of deceit, breach offiduciaryduty and negligence Ln connection with the sale ofa
8 universal Hfe insurance policy as a replacement for an existing poHcy. Id. at 957. The plaintiff later amended
9 her complaint to include class claims. Id. The court sustained the defendant's demurrer to the class claims,
10 which the plauitiff appealed. Id. The plaintiffs second amended complaint also included a cause of action
11 for violation of California's ULC, which survived the defendant's demurrer. Id. The defendant, therefore, filed
12 a writ as to the Court overruling the demurrer to the UCL claims. Id. at 958. On appeal, the plaintiff claimed
13 she met the delineated prerequisites for maintaining a class action. Id. at 959-963. The court agreed, holding
14 the trial court erred in sustaining the defendant's demurrer without leave to amend. Id. at 964. The court,
15 however, disagreed with the defendant's appellate claims and denied his writ. Id. In doing so, the court stated,
16 [tjhere can be no question but that the sixth cause of action of [the plaintiffs] second amended complaint
17 aUeges a pattem of behavior or course of conduct constitutuig an unfair business practice or practices." Id. at
18 965 "[The plaintiff] alleges thatfiromthe mid-1980's through the present, [the defendant] actively and
19 enthusiastically has pursued the sale of universal I f f e insurance policies as a replacement for whole or term
20 life insurance poHcies that consumers had purchasedfi-omother companies. [The Defendant] does this
21 knowing that such replacement seldom, if ever, is appropriate." Id.
22 The defendant in Wilner argued the plaintiffs UCL claim was similar to those in Bronco Wine Co. (see
23 above), arguing the plauitiff s UCL claim will requne an individual analysis of whether each replacement
24 insurance poHcy was against the best mterest of the purchaser. Id. at 969. To the extent that the plaintiffs
25 UCL claims seeks to restore money to the purchasers of the replacement policies, the court opined the
26 defendant "may be correct," but the remedy was to file a motion to strike. Id. The court further held the
27 defendant's argument of an individualized analysis was inapplicable to plaintiffs pursuit of injunctive relief
28 under UCL, which was valid not only on behalf of plaintiff but on behalf of all aggrieved members of the
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
11 CASE No. 34-2017-00210560
1 public without pursuit of a class action Id. "[T]he management of a class action is 'a difficult legal and
2 administrative task,'" in contrast to the "streamlined procedure" estabUshed in section 17200." Id.
3 Just like Bronco Wine Co. and South Bay, the court's holding in Wilner is immaterial to the instant
4 matter, principally due to the overt contrast between the restitution at issue in Wilner and the civil penalties
5 mvolved in violations of PAGA here. Further, notwithstandmg the fact that manageability of PAGA actions
6 is not defeated by individual analyses, the court in Wilner never actually opined on whether or not the
7 plaintiffs UCL claims was sustainable. Rather, the court merely stated such a chaUenge "may" be viable, but
8 would have to come by way of a motion to strike. Therefore, nothing in Wilmer carries any persuasive value
9 to support Defendant's arguments here.
10 To summarize, unlike class or representative actions seeking damages or injunctive relief for injured
11 employees, the purpose of PAGA "is to incentivize private parties to recover civil penalties for the govemment
12 that otherwise may not have been assessed and coUected by overburdened state enforcement agencies." (Arias,
13 supra, 46 Cal. 4th at 987.) Additionally, the Califomia Supreme Court has already made clear that a PAGA
14 claim is not a dispute between an employee and an employer, but rather a "dispute between an employer and
15 the state, which alleges directly or through its agents — either the [LWDA] or aggrieved employees — that
16 the employer has violated the [Califomia] Labor Code." (Iskanian, supra, 59 Cal.4th at 386-387 [emphasis
17 original].) The employee bringing a PAGA action is prosecutmg a "law enforcement action" and "represents
18 the same legalrightand interest as state labor law enforcement agencies[.]" Id. at 387. Defendant provides
19 no authority for the proposition that the LWDA was required to prove manageability before litigating the
20 merits, nor did Defendant cite to any provision of Califomia law requiring — or even mentioning - a
21 procedure whereby such an element would have to be proved as a prerequisite. The only provisions in PAGA
22 that can be described as prerequisites are the notice procedures to the LWDA, which, as discussed above
23 Plaintiff has met for all clanns asserted.
24 4. PlaintifFs PAGA Action Is Manageable
25 Assuming arguendo "manageability" is a requirement for PAGA, Defendant has not presented
26 sufficient evidence that Plaintiff s PAGA claim will be unmanageable. Defendants only claim is, "any attempt
27 by Spears to meet this burden [of proof] will require her to put on highly individuaUzed evidence for each of
28 the 3,700 employees." (Motion at 15:9-10.) Defendant's argument fails for multiple reasons.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
12 CASE No. 34-2017-00210560
1 Furst, Defendant's argument is contrary to the Califomia Court of Appeal in Carrington, supra, that
2 concluded a PAGA action pertaining to meal break violations for over a hundred thousand aggrieved
3 employees was not over-mdividualized to render it unmanageable. (Carrington, supra, 30 Cal.App. at 526.)
4 Specifically, Starbucks's expert "analyzed over 5.7 million shift records from 27,146 employees in 490
5 stores, purportedly representing 25 percent of Califomia stores." Id. at 515-516. Starbucks fiirther
6 argued:
Carrington's experience was mdividualized, emphasizing that she worked with several other
7 untrained, new employees in a newly ope
Preview
1 BLUMENTHAL N O R D R E H A U G BHOWMIK DE BLOUW LLP Norman B.Blumenthal (State'Bar #0'68687) <:•' • 2 Kyle R.,Nordrehaixg (State:Bai::#205975) Aparajit BHbwmik (State-Bar.#248066) Victoria B;.Rivapalacio (State Bar #275115) F'LED/ENDORSED % .'• \Z-•'jt. , Jefeey S. Herman (State^ 4. 2255 Calle eiara La Jolla,GA 92037 5 Teleplione:-(858)551-1223 6 Facsiinile: (858)551-1232 ' By: FEB 1 5 20(9 H. Portalan73 Oeputy Cte& Attomeys for Plaintiff [ . 7 J ;'.- r 8 ^9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 ANT'S|MOTION AS TO WHY SPEARS' CASE SHOULD NOT ' PROCEED-AS A PAGA'IEPR^'SEN^^ ' ' CASE No. 34-2017-00210560 1 TABLE OF AUTHORITIES Z 2 1• Pages: 5"'. • 3 Cases; -riZ ^"-A li ', 4. Alcantar V-Hobart Service, • 800 F:3d 1047 (9th Cir 2015) 5-6 5 z• Alt Star Seedv. Natiohwide'Agribusiness Ins. Co., -^>^- 6 , 2013-;U.S. Dist. LEXIS' 64587 15 ' 7' Amtower v.f'PhotonDynamics, Inc. ; - (2008) 158 CaLApp.4th 1582 . . : 4 >zk-Z 8. Arias v. Superior Court: ''ZZ .. 9 (2009) 46.Cal. 4th 969 • : 2-3, 5, 7-9,12 zz .• ''^.S' .., •-' 10: Bronco Wine Co. V. Frank A. Logoluso Farms (1989) 214 Cal.App.3a699' ;... 9, 11-12 .1;. •. )^.'-];•<••.-.' 11 Brown V. Am. Airlines, Inc., 12 2015 U.S. Dist. LEXIS 150670 (CD. Cal. Oct. 5,2015) 8 13 Brown v. Ralphs Grocery Co. ^• , *• . Z'" V • V, '• 14 15 17 (2018) 28 Cal. App. 5th 824...: Cardenas v. McLane Foodservic'es,'Inc., 796 F. Supp: 2d 1246,1260 (CD. Cal. 2011) 16 Carrington v. Starbucks Corporation (2018)'30 Cal. App. 5th-504 ;; 6 5 1-4, 13, 15 Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC 18 (2015) 61 C a l M 8 3 0 . . . . . . . . . . . . . . . , 4 v'. 19 Green v. Bank ofAm., N.A., 634 Fed. Appx. 188,191 (9th Cir. 2015). 1,5-6 20 . > '• ' 21 Hibbs-Rines v. Seagate techs., 2009 U.S. Dist. LEXIS 19283 22 Huff V. Securitas Sec. Sews. USA, Inc 8 (2018) 23 Cal.App.5th 745: 3 23- Iskanian v. • CLS Transportation Los Angeles, LLC -;,'.24 (2014) 59 Cal.4th 349 .3,8,12 tZ'^. -• ;.;25 Jordan V. NCI Group, Inc., ' 2017 WL' 1821122 (CD; Cal. Mar. 22,2017) 7 y 26 , Mejia V. 99 Cents Only Stores; , ''. 27' 2018 Cal. Super. CEXIS 3082 (LASC April-6, 2018) 7 > 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S li40TI0N AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION CASE No. 34-2017-00210560 '%' 1 Mendoza V: Nordstrom, Inc. r.' (2017) 2 Cal. 5th 1074 2,7 Y'. • 2 J. NewYork Times Co. v. Superior Court •1''.' 3 - (2005) 135.Cal.App.4th 206 4 4 Ochoa-Hemahdez v Cjaders Foods, Inc., r, "' ' • 5 6 2010 U;S. Dist LEXIS 132774 . • f . - ' . ' Plaisted v. Dress Barn, Inc., . . , ,. " 7 South Bay Chevrolet V. General Motors Acceptance Corporation 8 "' (1999) 72 Cal.App.4th 861 Syncora Guarantee Inc. v. (EMC Mortgage Corp., . : 2012 U.S. Dist. LEXIS; 1'35599 (CD. Cal. Sept. 20,2012) . .^ ., 8 10-12 8 \ f' 9 2013 U.S. Dist. LiBXIS 41770 15 10 Tsengv. Nordstrom, Inc., 2016 U.S. Dist LEXIS 176990 (CD. Cal. Dec. 19,2016) 7 11 Williams v. Sttperior Court 12 (2017) 3'Cal.5th 531 3 13 Wilner v. Sunset Life Insurance Co. •. (2000) 78 Cal.App.4th 952 11-12 14 Zackariav. Wal-Mart Stores, Inc., 15 2015 WL 6745714 (CD. Cal. Noy:3,2015). 7-8 •' , ?•' 16 Zayersv. KiewitInfrastructure W. Co., 17 2017 U.S. Dist. LEXiS 216715 ,(CD. Gal. Nov. 9,2017) 8 • 1, • 18 Statutes; 19 Bus.:& Prof Code § 17200. 12 20 Cal. Labor Code § 226 6 21 Cal. Labor Code § 2699.3 .' 1, 5, 7 •-C.-' 22 ' -- 23 24- Z' - • : 25 • 26 I"" • -27 28 PLAmTffF'S OPPOSITION TO DEFENDANT'S MOTION^AS TO WHY SPEARS' CASE SHOULD NOT ' PROCEED AS A P % A R£PB£SEW CASE No. 34-2017-00210560 1 1. INTRODUCTION 2 Plaintiff has followed all the required steps prescribed by the Private Attomey General Action 3 ("PAGA") to be deputized by the State of Califomia to" seek the civil penalties Defendant Healthnet of 4 Califorma, Inc. ("HNCA" or "Defendant") owes for the Labor Code violations identified in Plaintiffs notice 5 that Plaintiff is able to prove at trial. Defendant's defense that Plaintiff cannot manage to prove these 6 violations at trial is disingenuous and premature. Plaintiff cannot divest Defendant of their affirmative 7 defense without affording Defendant fhe due processrightsof attacking those defenses under the procedural 8 framework of a dispositive motion or trial. Similarly, Defendant's "motion as to why Spears' case should not 9 proceed as a PAGA representative action" (Defendant's "Motion") violates Plaintiff s due process to the same 10 procedural safeguards. 11 Defendant's claim of "immanageability" at this early stage of the lawsuit, before expert designation 12 dates have been set and before the close of discovery, is pure conjecture. Such premature speculation falls far 13 short of meeting Defendant's high burden required by summary judgment of proving that PlaintifPs PAGA 14 claim fails as a matter of law. Indeed, the Califomia Court of Appeal in Carrington v. Starbucks Corporation 15 (2018) 30 Cal. App. Sth 504 recently approved a trial court's denial ofthe same kind of motion "summary 16 judgment or adjudication in disguise" on the grounds that it was procedurally defective. Id. at 509. 17 Defendant's motion should also be denied on substantive ground as well. The PAGA Notice Plaintiff 18 provided to Labor Workforce Development Agency ("LWDA") more than satisfies the requirements set forth 19 in Califomia Labor Code § 2699.3. The case law interpreting PAGA Notice requirements makes clear that 20 "written notice is sufficient so long as it contains some basic facts about the violations, such as which 21 provision was allegedly violated and who was allegedly harmed." (Green v. Bank of Am., N.A., 634 Fed. 22 Appx. 188, 191 (9th Cir. 2015).) Here, Plaintiff met the specificity requirements by including in the PAGA 23 Notice the "basic facts about the violations" and by attaching thereto a tme and correct copy of Plaintiff s 24 entire complaint withfiirtherdetails of the allegations against Defendant. As a result. Plaintiff may lawfiilly 25 pursue civil penalties for Defendant's violation of the meal and rest period requirements of the Califomia 26 Labor Code, as well as Defendant's failure to pay overtime wages by miscalculating th regular rate of 27 Defendant's employees. These allegations are clearly specified in great detail aU throughout the originally 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 CASE No. 34-2017-00210560 1 filed Complaint that was attached to Plaintiffs PAGA Notice. (Exhibit 1: Plaintiff Complaint, at 9-11, 2 14-17, 21-23, 32, 36, 37,46, 56-71.)' 3 Defendant's argument that Plaintiff's PAGA claim requires an "insurmountable hurdle" of proving 4 violation for 3,700 aggrieved employees fails on multiple levels. First, Carrington involved an analysis of 5 27,146 employees, which represented just one fourth of all aggrieved employees in that matter. (Carrington, 6 supra, 30 Cal.App.5th at 515-516.) Second, Defendant erroneously assumed that all 3,700 aggrieved 7 employee are implicated by the meal aspect of Plaintiffs PAGA claim. Plaintiff, however, is preparing for 8 trial based on those aggrieved employees who workedfiromthe start of the PAGA period (April 5, 2016) to 9 December 31, 2016, when Defendant revamped their payroll system to automaticallyflagand pay for meal 10 period violations. There are only 2,559 employees in this group, andfiromthis subset, only employees who 11 worked at least six hours in a shift will be considered. Had Defendant perfonned any discovery on the scope 12 of the PAGA claim before filing this Motion unauthorized by any Code of Civil Procedure or Rule of Court, 13 the deficiencies underlying Defendant's Motion would have been glaringly apparent. Similarly, as to the rest 14 period claim. Plaintiff is still in the process of analyzing the data, which is further proof that Defendant's 15 motion is speculative and premature. 16 Defendant's Motion must also fail because it is premised on a "manageability" requirement that does 17 not exist for PAGA actions. (See Arias v. Superior Court (2009) 46 Cal. 4th 969, 975.) Defendant failed to 18 comply with the mandate ofthe Califomia Supreme Court in that the class certification requirements do not 19 apply to PAGA claims. Id. at 975. Defendant's failure to understand this holdmg of Arias is shown by 20 Defendant's filing of this Motion as part and parcel of the class certification briefing schedule set by the Court. 21 Indeed, the complete absence of any attempt by Defendant to meaningfully distinguish Arias or decouple this 22 Motion from the class certification briefing scheduUng and hearing is contrary to Califomia law. (See 23 Mendoza v. Nordstrom, Inc., (2017) 2 Cal. 5th 1074, 1079 [ ["PAGA authorizes a representative action 24 without the need for class certification."].) 25 The Court would abuse its discretion by granting Defendant's request to dismiss the State of 26 California's penalty claims brought by under PAGA as a denial ofthe State's constitutional due precess rights 27 28 ' All Exhibits are attached to the Declaration of Jeffrey S. Herman filed concurrently herewith. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 2 CASE No. 34-2017-00210560 1 to litigate this claim before the scope of trial testhnony is narrowed by expert discovery that has et to 2 commence, as well as this Court's other pretrial procedures, including but not limited to, exchanging exhibit 3 lists (Local Rule 2.98), preparing a joint witness list (Local Rule 2.99) and filuig a joint statement ofthe case 4 (Local Rule 2.99.02). The wide array of tools available for a court to manage a complex case do not include 5 or even contemplate dismissal ofthe State's claims without due process. (See Huff v. Securitas Sec. Servs. 6 USA, Inc. (2018)23 Cal.App.5th 745; ^no^, supra, 46 Cai. 4th; Iskanian v. CLS Transportation Los Angeles, 7 LLC (2014) 59 Cal.4th 349; Williams v. Superior Court (2017) 3 Cal.5th 531.) Defendant ignores these 8 appropriate trial management procedures and instead requests relief unsupported by any Califomia Court in 9 a motion unauthorized by any Code of Civil Procedure, Rules of Court. In no event could the State's due 10 processrightsbe preserved by accepting as tme Defendant's exaggeration of the ability to present a defense 11 to the same kind of claims that were easily tried regarding tens of thousands more employees. (See Carrington, 12 supra.) For aU these reasons as set forth more fully below. Plaintiffs respectfully requests the Court deny 13 Defendant's Motion in its entirety, n. ARGUMENT 14 A. Defendant Has Concocted An Unauthorized Motion Due To Defendant's Inability To 15 Correctly Seek Their Requested Relief 16 The Califomia Code of Civil Procedure has specifically outlined the following ways Defendant can 17 challenge Plaintiffs PAGA cause of action before trial: (1) through a motion to strike, (2) through a motion 18 for judgment on the pleadings or (3) by way of a dispositive motion. Defendant's Motion is none of these, 19 yet Defendant nonetheless filed this Motion in an effort to bypass the procedural safeguards afforded to 20 Plaintiff. The reasons for Defendant's actions are simple: 21 First, Defendant blew the motion to strike filing deadline, which required Defendant to file such a 22 pleading challenge as Defendant's first responsive pleading. (CCP. § 435(b)). 23 Second, a motion for judgment on the pleadings can only be brought by Defendant i f there is a 24 jurisdictional challenge or on the grounds "that the complaint does not state facts sufficient to constitute a 25 cause of action against the defendant." (C.C.P. § 438.) Defendant could never meet this burden of proof 26 because the supporting evidence "shall appear on the face ofthe challenged pleading or from any matter of 27 which the court is requured to take judicial notice." (C.C.P. § 438(d).) Here, Defendant's Motion relies 28 exclusively on evidence extrinsic to the pleadings (such as deposition testimony and corporate representative PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 3 CASB No. 34-2017-00210560 1 declarations), none of which is judicially noticeable. 2 Third, Defendant has not filed the instant motion as a motion for summary judgment because 3 Defendant wants to deprive Plaintiff of her 75-day statutory notice (CCP. § 437c(a)), and Defendant knows 4 it is unable to meet the high burden of proof (C.C.P. § 437c(c) ["no triable issue of material fact"].) This 5 would be akin to Plaintiff challenging one of Defendant's affirmative defenses on a regular motion, without 6 appropriate notice or sufficient evidence, to have an easier burden of proof Indeed, the Court already 7 rejected both of Defendant's attempts at summary judginent, which included attempts to summarily 8 adjudicate Plaintiff's PAGA action (See Request for Judicial Notice 1 p. 9-10, 2 p. 8-11), and Defendant 9 presents no new evidence to warrant another summary judgment motion. (See Even Zohar Construction & 10 Remodeling, Inc. v. Bellaire Townhouses, Z,iC(2015) 61 Cal.4th 830, 839; NewYork Times Co. v. Superior 11 Court (2005) 135 Cal.App.4th 206, 212-213.) Because Defendant knows they would be unable to file, let 12 alone win, another summary judgment motion. Defendant is attempting to obtain summary judgment under 13 the guise of this imauthorized motion. In order vvords, because the proper procedural vehicles were unavailable 14 to Defendant, they decided to shortcut procedural due process. The Court should not tolerate the type of 15 procedural shortcuts attempted by Defendant here. "[T]he disadvantages of such shortcuts are obvious. 16 They circumvent procedural protections provided by the statutory motions or by trial on the merits; 17 they risk blindsiding the nonmoving party; and, in some cases, they could infringe a litigant'srightto 18 a jury trial" (Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582, 1594 [regarding the use of 19 a motion in limine as a disguised motion for summary judgment].) "The better practice in nearly every case 20 is to afford the litigant the protections provided by trial or by the statutory processes." Id. 21 Finally, Defendant's attempt to circumvent the summary judgment procedurefliesin the face of the 22 Califomia Court of Appeal m Carrington, supra, 30 Cal. App. 5th. There, the defendant (Starbucks) filed 23 a pre-trial "motion regarding trial of representative claim," claiming, exactly as Defendants are claiming 24 here, that, "a representative PAGA action was not appropriate because no uniform policy or practice could 25 explain why employees took a late break; as such, individualized inquiries into each late meal break were 26 required." Id. at 508-509. The court summarily denied Starbucks' mption "finding it was one 'for summary 27 judgment or adjudication in disguise,' and Starbucks had failed to comply with the procedural 28 requirementsforsummaryjudgmentmotions.(See,e.g.,CodeCiv. Proc, §437c.)" Id. at 509. This Court PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4 CASE No. 34-2017-00210560 1 should foUow suit and deny Defendant's clear attempt to deprive Plaintiff of her due processrightsand the 2 procedural safeguards afforded to Plaintiff by the Code of Civil Procedure. 3 B. Plaintiff's LWDA Notice Sufficiently Describes The Facts And Theories Supporting Defendant's Violations 4 The PAGA Notice Plaintiff sent to the LWDA more than satisfies the requirements of Cal. Labor Code 5 § 2699.3. According to controlling precedent, "that stamte requires the employee to give written notice of the 6 aUeged Labor Code violation to both the employer and the Labor and Workforce Development Agency, and 7 the notice must describe facts and theories supporting the violation." (Arias, supra, 46 Cal.4th at 981.) "[T]he 8 plain meaning" of the phrase "'facts and theories to support [the] alleged violation'" "suggests that [the 9 pjlaLntiffs were required to put forward sufficient facts to support their claims of labor violations...." 10 (Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246,1260 (CD. Cal. 2011).) hi other words, "a U written notice is sufficient so long as it contains some basic facts about the violations, such as which 12 provision was allegedly violated and who was allegedly harmed." (Green, supra, 634 Fed. Appx. 188 13 [citing Alcantar v. Hobart Service 800 F.3d 1047 (9th Cn. 2015).].) 14 In Green, supra, the plaintiffs PAGA noticed was sufficient when it "contained: (1) the specific statute 15 Bank of America allegedly violated, (2) facts about what position plaintiffs held, (3) a statement that plaintiffs 16 could use a seat in their position, and (4) a specific identification of who was allegedly harmed." Id. "These 17 facts put the LWDA and Bank of America on notice about the nature of the plaintiffs' claims, namely, that 18 Bank of America was not providing chairs for plaintiffs as Califomia law requires." Id. 19 Additionally, in McLane Foodservices, the plaintiffs first amended complaint attached a copy of their 20 PAGA Notice, which stated, "Plaintiffs' counsel is representing 'a group of tmcker drivers who worked for 21 McLane Food Service Inc.' and the letter is 'notice, and arequest, pursuant to Califomia Labor Code § 2699.3 22 that [the LWDA] investigate the claims in this impending civil action.'" (McLane Foodservices, supra, 796 23 F.Supp.2d. at 1259. "In the letter, counsel described the action as being 'brought on behalf of thirty-seven 24 tmck drivers,' whom it then names. [] The letter also notes that [the defendant] employed Plaintiffs "as tmck 25 drivers out ofits Southern Califomia distribution center." Id at 1259. Based on the foregoing, the court found 26 the plaintiffs' PAGA notice to be sufficient. Id. At 1260-1261. 27 Here, Plaintiff's PAGA Notice contains facts and theories to put the LWDA and Defendant on notice 28 about the nature of Plaintiff s claims. Specifically, PlaintifFs April 5, 2017 letter to the LWDA stated: PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 5 CASE No. 34-2017-00210560 1 Plaintiff was employed by Defendant in CaUfomiafiromDecember of 2013 to October of 2016 as a nonexempt employee entitled to the legally required meal and rest breaks and payment for 2 all time worked under Defendant's control, including overtime worked. Defendant, however, unlawfully failed to record and pay Plaintiff and other aggrieved employees for all of their time 3 worked, uicludmg overtime wages, and for all of their missed meal and rest breaks. As a consequence of the aforementioned violations. Plaintifffiirthercontends that Defendant failed 4 to provide accurate wage statements to her, and other aggrieved employees, in violation of Califomia Labor Code section 226(a). Additionally, Plaintiff contends that Defendant failed 5 to comply with Industrial Wage Order 7(A)(3) in that Defendant failed to keep time records showing when Plaintiff began and ended each shift and meal period. Said conduct, in addition 6 to the foregoing, violates Labor Code §§ 201, 202, 203, 204, 226(a), 226.7, 510, 512, 558, 1194,1197, 1197.1,1198, Violation ofthe applicable hidustrial Welfare Commission Wage 7 Order(s), and is therefore actionable under Califomia Labor Code section 2699.3. 8 (Exhibit 2. PAGA Notice at p. 1.) 9 In addition. Plaintiffs PAGA Notice attached a true and correct copy of Plaintiffs complete 10 Complaint, which detailed the fact and theories which supported Plaintiffs allegations against Defendant and 11 the details ofthe specific work performed by Plaintiff, as well as the illegal practices used by Defendant. 12 Despite the foregoing, Defendant brazenly claims Plaintiff s PAGA Notice was insufficient. As stated 13 above, "written notice is sufficient so long as it contains some basic facts about the violations, such as 14 which provision was allegedly violated and who was allegedly harmed." (Green, supra, at 1260), which 15 Plaintiffhas clearly accomplished. There is "no authority suggesting that PAGA's requirement that employees 16 provide in their notice 'facts and theories to support [an] alleged violation' necessitates inclusion of every 17 potential fact or every future theory." (McLane Foodservices, Inc., supra, 796 F. Supp. 2d at 1260.) 18 Finally, Plaintiffs PAGA Notice is a far cry from instances where the court found PAGA Notices 19 uisufficient. (See Alcantar, supra, 800 F.3d 1047 ["the notice did not allow the LWDA 'to intelligently assess 20 the seriousness of the alleged violations' or give the employer enough information to determine what policies 21 or practices are being complained of so as to know whether to fold or fight.."]; Brown v. Ralphs Grocery Co. 22 (2018) 28 Cal. App. 5th 824,837-838 ["a string of legal conclusions that parroted the allegedly violated Labor 23 Code provisions.... did not give sufficient information for the LWDA to assess the seriousness of the alleged 24 violations...."]) Unlike in Alcantar and Brown, Plaintiffs PAGA Notice gave sufficient information for the 25 LWDA to assess the seriousness ofthe alleged violations, and allowed Defendant to determine what policies 26 or practices were at issue tb have an opportunity to cure. 27 /// 28 /// . PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 6 CASE No. 34-2017-00210560 1 C. Defendant's Manageability Argument Lacks Merit And Is Based On A False Premise 1. Manageability Is Not A Requirement For PAGA Actions 2 Defendant's Motion requests the Court to write out of the law the Califomia Supreme Court's holding 3 in Arias v. Superior Court (2009) 46 Cal. 4th 969, which specifically stated, "those [class action] 4 requirements need not be met when an employee's representative action against an employer is seeking 5 civil penalties under the Labor Code Private Attomeys General Act of 2004." Id. at 975. Indeed, buried 6 in a footQote in Defendant's motion is the concession that "Arias makes clear that PAGA claims need not 7 satisfy class action requirements." (Motion at p. 11, fn 3.) Nevertheless, Defendant's entire motion 8 unsupportedly contends that the PAGA claim of the State of Califomia can be denied on the ground that 9 litigation would be "unmanageable" by relying on holding related to class actions - not PAGA actions. Id. 10 (See also Mendoza, supra, 2 Cal. 5th at p. 1079 ["PAGA authorizes a representative action without the need 11 for class certification."].) "The court is persuaded that manageability is not a basis to strike a PAGA 12 action." (Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3 082 (LASC April 6,2018); citing Zackaria 13 V. Wal-Mart Stores, Inc. 2015 WL 6745714 (CD. Cal., Nov. 3, 2015), at "^6 ["the court finds defendant's 14 manageability argument inconsistent with PAGA's purpose and statutory scheme."].) "Holding that 15 individualized liability determinations make representative PAGA actions unmanageable, and therefore 16 untenable, would impose a barrier on such actions that the state law enforcement agency does not face when 17 it litigates those cases itself" Id. 18 Further, in Tseng v. Nordstrom, Inc 2016 U.S. Dist LEXIS 176990 (CD. Cal. Dec. 19, 2016), the 19 court similarly rejected manageability as a basis to strike a complaint: 20 In light of PAGA's purpose to serve as a "law enforcement action designed to benefit the public and not to benefit private parties,"... the Court is persuaded by the reasoning of cases 21 declining to impose a manageability requirement on PAGA clanns. Class actions are designed "to allow a collection of individual plaintiffs to sue the same defendant in one consolidated 22 action for the sake of convenience and efficiency," ... "Holding that individualized liability determinations make representative PAGA actions unmanageable, and therefore untenable," 23 would be . inconsistent with PAGA's purpose, because it "would impose a barrier on such actions that the state law enforcement agency does not face when it litigates those cases itself" 24 (Id. at '•IS; see a\so Jordan v. NCI Group Inc., 2017 WL 1821122 (CD. Cal., Mar. 22, 2017) at =^5 ["The 25 Courtfindsthat PAGA claims do not have a manageability requirement."] 26 Because Arias and its progeny hold that a representative PAGA plaintiff need not satisfy any ofthe 27 class action requirements. Defendant cannot plausibly argue that one particular class action requirement of 28 manageability must be proved in order to maintain a PAGA action PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 7 CASE No. 34-2017-00210560 1 2. Individualized Analyses Do Not Make Plaintiff's PAGA Action Unmanageable 2 Notwithstandmg the fact that "manageability" is not a requirement for PAGA actions, Defendant's 3 entire "manageabiUty" argument is predicated on the false claim that the individual analyses of the aggrieved 4 employees would render Plamtiffs PAGA action "unmanageable." Defendant's argument is contrary to 5 controllmg case law. "To hold that a PAGA action could not be maintained because the individual 6 assessments regarding whether a violation had occurred would make the claim unmanageable at trial 7 would obliterate [the purpose of PAGA], as every PAGA action in some way requires some 8 individualized assessment regarding whether a Labor Code violation has occurred. (Plaistedv. Dress 9 Barn, Inc., 2012 U.S. Dist. LEXIS 135599, '•ia(C.D.^ Cal. Sept. 20, 2012); see also Brown v. Am. Airlines, 10 Inc., 2015 U.S. Dist. LEXIS 150670, '•3 (CD. Cal. Oct. 5, 2015) ["every PAGA action in some ways 11 requires some individualized assessment regarding whether a Labor Code violation has occurred."].) 12 The Court mZayers v. KiewitInfrastructure W. Co., 2011 U.S. Dist. LEXIS 216715 ( CD. Cal. Nov. 13 9, 2017) recently opined on this issue. There, the Court found "[the djefendant's manageability argument 14 inconsistent with PAGA's purpose and statutory scheme." Id (citing Plaisted, supra, 2012 U.S. Dist. LEXIS 15 135599.) To the contrary, "PAGA contemplates civil penalties for' a violation' of the Califomia Labor Code... 16 which will often require individualized assessments of liability." Id. at '•'29 (citing Hibbs-Rines v. Seagate 17 Techs., 2009 U.S. Dist. LEXIS 19283 at 11 [ "defendants overtook that civil penalties under PAGA are only 18 assessed forViolations for the Califomia Labor Code. Plaintiff will have to prove Labor Code violations with 19 respect to each and every individual on whose behalf plaintiff seeks to recover civil penalties imder PAGA."].) 20 Further, "[t]he puipose of PAGA 'is to incentivize private parties to recover civil penalties forthe govemment 21 that otherwise may not have been assessed and collected by overburdened state enforcement agencies.'" Id. 22 at *30 (quoting Ochoa-Hernandez v Cjaders Foods, Inc., 2010 U.S. Dist. LEXIS 32774 (N.D. Cal. 2010).) 23 Holding that individualized liability determinations make representative PAGA actions 24 unmanageable, and therefore untenable, would impose a barrier on such actions that the state law 25 enforcement agency does not face when it litigates those cases itself." Id. (citing Iskanian, supra, 59 26 Cal.4th at 3 80; Arias, supra, 46 Cal. 4th at 973.) "Imposing such a requirement, found nowhere in PAGA 27 itself and not imposed upon the government, would 'obliterate [the] purpose' of representative PAGA 28 actions." Id. at "'31 (quoting Zackaria, supra, 142 F. Supp.3d at 959.) Accordingly, the Zayers Court PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 8 CASE No. 34-2017-00210560 1 decline[d] to departfi-omthe holdings of other courts in Califomia and m this District, which do not impose 2 a manageabiUty requirement on a representative PAGA claim." Id. 3 3. Defendant's Pre-Proposition 64 UCL Authority Is Unpersuasive In This PAGA Action 4 The fact that Defendant had difficultly finding case law to support its argument regarding 5 manageability in PAGA actions speaks volumes. (See Motion at 11:19-20 ["pubHshed case law on the 6 manageability requkement for PAGA representative actions is limited...."].) Instead, Defendant cited Pre- 7 Proposition 64 UCL authority which carries no precedential weight in light of the ample authority cited herein 8 regarding PAGA representative actions, as well as the critical distinctions between the instant matter and 9 Defendant's cited authority. 10 In Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal.App.3d 699, the plaintiff sued a 11 winery operator on a breach of contract theory. The plaintiff also sought restitution on behalf of itself and other 12 grape growers under contract with the defendant as compensation for unfair business practices. M at 715. 13 The trial court awarded restitution to several nonparty grape growers. The Court of Appeal concluded the 14 procedure the trial court used to grant awards to non-parties raised "serious fimdamental due process 15 considerations." Id. at! 17. The court noted the determination of whether the business practice was unfair was 16 complex, and the potential amount of restitution per grower was significant and not determined by an 17 automatic calculation. Id. at 720. Although the court issued restitution awards nonparty grape growers, 18 contracts of other nonparty growers were introduced. M at 716, 718. Disputes arose because the defendant 19 asserted 12 of the growers had already released then claims. Id. at! IS. Under those circumstances, the court 20 concluded the trial court abused its discretion in denying the defendant's pretrial motion to strike claims 21 asserted on behalf of nonparty growers or require that a class action procedure be utilized. Id. &t 715, 721. 22 Bronco Wine does not mandate an outcome m this case. The case involving disputes between different 23 competitors is much different than this case involving employees who all worked for the same employer. 24 Further, CaUfomia Supreme Court authority explicitly holds that an aggrieved employee need not meet class 25 action requirements to bring a PAGA claim to seek civil penalties for violations of other aggrieved employees. 26 Arias already rejected claims that such PAGA claiins without class certification would create due process 27 problems - a primary concem of the court in Bronco Wine. Moreover, the court in Bronco Wine was 28 concemed with the difficulty of making awards of restitution under the UCL. Under PAGA, a plamtiff may PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 9 CASE No. 34-2017-00210560 1 only pursue civil penalties on behalf of himself and other aggrieved employees. Cases involving restitution 2 under the UCL are also distinguishable because PAGA gives courts equitable discretion to adjust penalties 3 that otherwise would be unjust, arbitrary and oppressive, or confiscatory. (Lab. Code,§ 2699, subd. (e)(2).) 4 PAGA penalties are also completely unlike awards for restimtion imder the UCL because PAGA 5 penalties do not go mainly to the injured employee. Rather, the govemment gets the majority of civil penalties 6 in the form ofthe 75% that goes to the LWDA with only 25% going to the "aggrieved employees." (Lab. 7 Code, § 2699(i)). The distribution results m a program that mostlyfimdsthe govemment rather than a private 8 compensation system, consistent with the Legislative uitent in passing the Act in response to the shortfall in 9 fimding that affected governmental agencies traditionally prosecuted these claims on an employee by employee 10 and pay period by pay period basis. Further, civil penalties under PAGA is that representative PAGA actions i l can recover only statutory penalties in fixed amounts per violation. (Lab.Code § 2699(f).) Accordingly, 12 unmanageabiUty of determining individualized restitution awards does not apply to PAGA claim in the same 13 way as those determinations affected representative UCL claims before Proposition 64. 14 South Bay Chevrolet v. General Motors Acceptance Corporation (1999) 72 Cal.App.4th 861 ("South 15 Bay") - also cited by Defendant - similarly concemed representative claims under the UCL prior to 16 Proposition 64 brought by a business, not an individual consumer or employee. There, the plaintiff, an 17 automotive dealership, asserted an individual claim for unfair business practices on behalf of other Califomia 18 dealerships, as well as class claims. At the close of the plaintiffs case at trial, the court granted a motion for 19 judgment on the representative claim. The Court of Appeal found the trial court properly concluded the 20 plaintiff did establish other dealerships were "similarly situated as to their likelihood of deception," or that 21 any other dealership was likfely to be deceived by the defendant's practices. Id. at 894. Thus, the trial court 22 'properly determined it could not make any determination that [defendant] was Uable statewide." Id. at p. 895. 23 The Court of Appeal noted the record demonstrated there were disparate ways in which the dealerships 24 understood the defendant's practices, and based upon this record, the trial court acted within its discretion in 25 concluding there was an insufficient level of unifonnity to allow representative treatment. Id. at p. 897. 26 South Bay is inapplicable to PAGA, largely due to the distinctions between restitution and civil 27 penalties described above. Another critical difference between South Bay and the instant inatter is that the 28 trial court in South Bay dismissed the representative UCL claim only after the plaintiffs presentation of PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 10 CASE No. 34-2017-00210560 1 evidence at a bench trial revealed the absence of a statewide claim. Thus, the plaintiff had the opportunity to 2 prove there were similarly situated dealerships, but failed to do "so. In this case, however. Defendant is 3 attempting to deprive the State of Califomia of the due process right to a trial that was afforded to the 4 plaintiff in South Bay. 5 The last Pre-Proposition 64 case cited by Defendant, Wilner v. Sunset Life Insurance Co. (2000) 78 6 Cal.App.4th 952, is similarly unavailing. In Wilner, the plaintiff sued her insurance company and one ofits 7 agents for various forms of deceit, breach offiduciaryduty and negligence Ln connection with the sale ofa 8 universal Hfe insurance policy as a replacement for an existing poHcy. Id. at 957. The plaintiff later amended 9 her complaint to include class claims. Id. The court sustained the defendant's demurrer to the class claims, 10 which the plauitiff appealed. Id. The plaintiffs second amended complaint also included a cause of action 11 for violation of California's ULC, which survived the defendant's demurrer. Id. The defendant, therefore, filed 12 a writ as to the Court overruling the demurrer to the UCL claims. Id. at 958. On appeal, the plaintiff claimed 13 she met the delineated prerequisites for maintaining a class action. Id. at 959-963. The court agreed, holding 14 the trial court erred in sustaining the defendant's demurrer without leave to amend. Id. at 964. The court, 15 however, disagreed with the defendant's appellate claims and denied his writ. Id. In doing so, the court stated, 16 [tjhere can be no question but that the sixth cause of action of [the plaintiffs] second amended complaint 17 aUeges a pattem of behavior or course of conduct constitutuig an unfair business practice or practices." Id. at 18 965 "[The plaintiff] alleges thatfiromthe mid-1980's through the present, [the defendant] actively and 19 enthusiastically has pursued the sale of universal I f f e insurance policies as a replacement for whole or term 20 life insurance poHcies that consumers had purchasedfi-omother companies. [The Defendant] does this 21 knowing that such replacement seldom, if ever, is appropriate." Id. 22 The defendant in Wilner argued the plaintiffs UCL claim was similar to those in Bronco Wine Co. (see 23 above), arguing the plauitiff s UCL claim will requne an individual analysis of whether each replacement 24 insurance poHcy was against the best mterest of the purchaser. Id. at 969. To the extent that the plaintiffs 25 UCL claims seeks to restore money to the purchasers of the replacement policies, the court opined the 26 defendant "may be correct," but the remedy was to file a motion to strike. Id. The court further held the 27 defendant's argument of an individualized analysis was inapplicable to plaintiffs pursuit of injunctive relief 28 under UCL, which was valid not only on behalf of plaintiff but on behalf of all aggrieved members of the PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 11 CASE No. 34-2017-00210560 1 public without pursuit of a class action Id. "[T]he management of a class action is 'a difficult legal and 2 administrative task,'" in contrast to the "streamlined procedure" estabUshed in section 17200." Id. 3 Just like Bronco Wine Co. and South Bay, the court's holding in Wilner is immaterial to the instant 4 matter, principally due to the overt contrast between the restitution at issue in Wilner and the civil penalties 5 mvolved in violations of PAGA here. Further, notwithstandmg the fact that manageability of PAGA actions 6 is not defeated by individual analyses, the court in Wilner never actually opined on whether or not the 7 plaintiffs UCL claims was sustainable. Rather, the court merely stated such a chaUenge "may" be viable, but 8 would have to come by way of a motion to strike. Therefore, nothing in Wilmer carries any persuasive value 9 to support Defendant's arguments here. 10 To summarize, unlike class or representative actions seeking damages or injunctive relief for injured 11 employees, the purpose of PAGA "is to incentivize private parties to recover civil penalties for the govemment 12 that otherwise may not have been assessed and coUected by overburdened state enforcement agencies." (Arias, 13 supra, 46 Cal. 4th at 987.) Additionally, the Califomia Supreme Court has already made clear that a PAGA 14 claim is not a dispute between an employee and an employer, but rather a "dispute between an employer and 15 the state, which alleges directly or through its agents — either the [LWDA] or aggrieved employees — that 16 the employer has violated the [Califomia] Labor Code." (Iskanian, supra, 59 Cal.4th at 386-387 [emphasis 17 original].) The employee bringing a PAGA action is prosecutmg a "law enforcement action" and "represents 18 the same legalrightand interest as state labor law enforcement agencies[.]" Id. at 387. Defendant provides 19 no authority for the proposition that the LWDA was required to prove manageability before litigating the 20 merits, nor did Defendant cite to any provision of Califomia law requiring — or even mentioning - a 21 procedure whereby such an element would have to be proved as a prerequisite. The only provisions in PAGA 22 that can be described as prerequisites are the notice procedures to the LWDA, which, as discussed above 23 Plaintiff has met for all clanns asserted. 24 4. PlaintifFs PAGA Action Is Manageable 25 Assuming arguendo "manageability" is a requirement for PAGA, Defendant has not presented 26 sufficient evidence that Plaintiff s PAGA claim will be unmanageable. Defendants only claim is, "any attempt 27 by Spears to meet this burden [of proof] will require her to put on highly individuaUzed evidence for each of 28 the 3,700 employees." (Motion at 15:9-10.) Defendant's argument fails for multiple reasons. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 12 CASE No. 34-2017-00210560 1 Furst, Defendant's argument is contrary to the Califomia Court of Appeal in Carrington, supra, that 2 concluded a PAGA action pertaining to meal break violations for over a hundred thousand aggrieved 3 employees was not over-mdividualized to render it unmanageable. (Carrington, supra, 30 Cal.App. at 526.) 4 Specifically, Starbucks's expert "analyzed over 5.7 million shift records from 27,146 employees in 490 5 stores, purportedly representing 25 percent of Califomia stores." Id. at 515-516. Starbucks fiirther 6 argued: Carrington's experience was mdividualized, emphasizing that she worked with several other 7 untrained, new employees in a newly ope