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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217) FILED/ENDORSED
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara
La Jolla, CA 92037 DEC - 5 2018
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232 BY: E. Toscano
6 Deputy Clerk
Attomeys for Plaintiff
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SACRAMENTO
10
11 ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS
12 of herself and on behalf of all persons
similarly situated. CLASS ACTION
13 Plaintiff,
14 PLAINTIFFS' EXPARTE
APPLICATION FOR ORDER
SHORTENING TIME ON PLAINTIFF'S
15 HEALTH NET OF CALIFORNIA, INC., a MOTION TO CONTINUE HEARING
Califomia Corporation; and Does 1 through DATE AND BRIEFING SCHEDULE
16 50, inclusive. RELATING TO CLASS
Defendants. CERTIFICATION
17
18 Hearing Date: December 7, 2018
TOMAS R. ARANA, on behalf of himself, Hearing Time: 3:00 p.m.
19 all others similarly situated,
Judge: Hon. Alan G. Perkins
20 Plaintiff, Dept.: 35
21 Case filed: April 5,2017
22 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1-50,
23 inclusive.
24 Defendant.
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27
S 28
in PLAINTIFF'S EXPARTE APPLICATION
CASE No. 34-2017-00210560-CU-OE-GDS
1 PLEASE TAKE NOTICE that on December 7,2018 at 3:00 p.m., pursuantto Califomia Rules
2 of Court, Rule 3.1200, et seq.. Plaintiffs will apply to the Court ex parte for the entry of an order
3 shortening time on the motion to Continue Hearing Date and Briefing Schedule Relating to Class
4 Certification ("Motion to Continue"). The memorandum of points and authorities for the Motion to
5 Continue is attached as Exhibit 1 to the Declaration of Piya Mukherjee, filed and served herewith'.
6 PlaintifPs ex parte application will be heard in Department 35 of the Superior Court of Califomia,
7 County of Sacramento Gordon D. Schaber Courthouse located at 720 Ninth Street, Sacramento, CA
8 95814.
9 This Application is made on the grounds that good cause exists to enter the order to shorten time
10 on the Motion to Continue as Defendant, without providing any prior notice, filed a Renewed Motion
11 for Summary Adjudication on November 19,2018 which is set for hearing on Febmary 4,2019 and the
12 present deadline for Plaintiffs to file the motion for class certification and for Defendant to file the
13 motion for decertification is December 14,2018. (Mukherjee Decl., 14 ). Without an order shortening
14 time on the Motion to Continue, filed on December 5, 2018, pursuant to motion briefing per the
15 Califomia Code of Civil Procedure, Plaintiffs' Motion to Continue would not be heard until after the
16 current deadline for Plaintiffs to file the motion for class certification. Plaintiffs would suffer
17 irreparable harm by filing a motion for class certification before a mling on Defendant's Renewed
18 Motion for Summary Adj udication because the outcome of Defendant's Renewed Motion for Summary
19 Adjudication will affect how Plaintiffs will present the common predominance theories of liability in
20 the upcoming motion for class certification as well as the anticipated opposition to Defendant's
21 forthcoming decertification motion.
22 Notice of this Ex Parte Application was given in accordance with Califomia Rule of Court
23 3.1203. (/t/.at| 10. Exhibit 5). This Application is based on the attached Memorandum of Points and
24 Authorities, the accompanying declaration of Piya Mukherjee, all other papers filed in this action, the
25 argument that shall be heard in this matter, and all other matters of which the Court may take notice.
26
27 ' All exhibits are attached to the Declaration of Piya Mukherjee ("Mukherjee Decl."), filed
and served herewith.
28
PLAINTIFF'S EXPARTE APPLICATION
-2- CASE No. 34-2017-00210560-CU-OE-GDS
1 Pursuant to CRC 3.1202(a), the names, address and telephone number of Defendant's attomeys
2 are as follows:
3 Timothy J. Long (tjlong@orrick.com)
Nicholas J. Horton (nhorton@orrick.com)
4 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
5 Sacramento, CA 95814-4497
Telephone: (916) 447-9200
6 Facsimile: (916) 329-4900
7 Pursuant to CRC 3.1203, Plaintiffs gave notice of this ex parte application to Defendant. (Id.).
8 As of the filing of this application, Defendant has indicated that the ex parte application will be
9 opposed. (Id.). No prior ex parte applications have been filed in this matter. (Id.).
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PLAINTIFF'S EXPARTE APPLICATION
-3- CASE No. 34-2017-00210560-CU-OE-GDS
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 L INTRODUCTION
3 Plaintiffs hereby apply ex parte for an order shortening time on Plaintiffs' Motion to Continue
4 Hearing Date and Briefing Schedule Relating to Class Certification ("Motion to Continue"). If Plaintiffs'
5 motion was heard as statutorily required by the Califomia Code of Civil Procedure, the Motion to
6 Continue could not be heard before the current deadline for Plaintiffs to file the motion for class
7 certification and Defendant tofilethe motion for decertification which is December 14,2018. A hearing
8 date earlier than December 14, 2018 is, therefore, necessary. Plaintiffs cannot wait for a ruling on the
9 Motion to Continue before the motion for class certification would need to be filed based on the present
10 filing deadline of December 14, 2018. As such, good cause exists to shorten time on the Motion to
11 Continue.
12 Good cause also exists because Plaintiffs' Motion to Continue could not have been filed earlier.
13 Plaintiffs did not know that a continuance would need to be requested because Defendant only filed the
14 Renewed Motion for Summary Adjudication ("Renewed MSA") on November 19, 2018, without
15 providing Plaintiffs or the Court with any prior notice. (Mukherjee Decl., at | | 6-8). Plaintiffs sought
16 to avoid the filing of the Motion to Continue as well as this Ex Parte application by asking Defendant
17 to stipulate to a reasonable continuance of the class certification motion hearing date and briefing
18 schedule but Defendant refused Plaintiffs' request. (Id. at \ 9). Defendant's Renewed MSA was received
19 by Plaintiffs' counsel on November 20,2018. (Id. a t | 8). Even if Plaintiffsfiledthe Motion to Continue
20 on the same day it received the Renewed MSA and personally served the Motion to Continue, the earliest
21 hearing date on the motion would be December 14,2018 (to the extent the Court was available that day)
22 which is the same day Plaintiffs would need to file the motion for class certification. As such, this ex
23 parte application was unavoidable.
24 Defendant's Renewed MSA, filed only on November 19,2018, is set to be heard on February 4,
25 2019. Given that the result of the Renewed MSA could affect the claims Plaintiffs may seek to certify
26 and the way Plaintiffs may present the theory of liability, a continuance is needed so the motion for class
27 certification and opposition to the decertification motion can rely on the Renewed MSA mling.
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PLAINTIFF'S EXPARTE APPLICATION
-4- CASE No. 34-2017-00210560-CU-OE-GDS
1 The class certification motion briefing schedule and hearing date have been continued only once
2 before when the deadline to file the class certification motions fell only (1) day after the hearing date on
3 Defendant's initial motion for summary adjudication. Plaintiffs' requested extension as set forth in the
4 Motion to Continue is reasonable in light of the fact that it will allow the motions related to class
5 certification to be filed after a mling on Defendant's dispositive Renewed MSA to ensure that the scope
6 of the claims and proposed class set forth in the motions is consistent with the ruling on the Renewed
7. MSA. Plaintiffs, therefore, respectfully request that the Court grant Plaintiffs' Ex Parte Application for
8 an Order Shortening Time on the Motion to Continue and/or grant Plaintiffs' Motion to Continue and
9 continue the April 11, 2019 hearing date on the motions related to class certification to June 28, 2019,
10 or a date thereafter convenient for the Court and the related briefing schedules as requested in the Motion
11 to Continue.
12
13 II. FACTUAL BACKGROUND
14 The briefing schedule regarding Plaintiffs' Motion for Class Certification and Defendant's Motion
15 for Decertification was continued by the Parties by stipulation in order to prevent requiring Plaintiffs to
16 file motions related to class certification one (1) day after the hearing on Defendant's initial motion for
17 summary adjudication. (Mukherjee Decl., at ^ 4). Plaintiffs initially filed a motion to continue the
18 hearing date and briefing schedule. (Id.). Plaintiffs' motion was eventually taken off calendar because
19 Defendant agreed to stipulate to Plaintiffs' requested continuance so that Plaintiffs' motion for class
20 certification could adequately address the Court's ruling on the motion for summary adjudication. (Id.).
21 The current briefing schedule was set as follows:
22 The motion for class certification and motion for decertification filing deadline: December 14,
23 2018;
24 Any opposition to the opening class certification related motions: February 15, 2019;
25 Any reply in response: March 15, 2019; and
26 Hearing as to the motions related to class certification: April 11, 2019 at 10:00 a.m. (Id.)
27 On October 23, 2018, Judge Kmeger in Department 54 issued a mling granting in part and
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PLAINTIFF'S EXPARTE APPLICATION
-5- CASE No. 34-2017-00210560-CU-OE-GDS
1 denying in part Defendant's initial motion for summary adjudication. (Exhibit 2). The intent behind the
2 continuation of the class certification motion briefing schedule was to ensure that Plaintiffs' motion for
3 class certification would be tailored to address Judge Kmeger's mling on the initial motion for summary
4 adjudication.
5 On October 26,2018, Defendantfiledand served a case management conference statement which
6 included a section regarding "dispositive motions." fExhibit 3). Therein, while Defendant states that it
7 is considering whether to appeal the ruling on the motion for summary adjudication, Defendant fails to
8 state that it is considering filing a renewed motion for summary adjudication. (Exhibit 3. 2:7-14).
9 Thereafter, the Parties appeared before this Court on November 9, 2018 for a case management
10 conference where Defendant, again, did not notify this Court or Plaintiffs that it had any intention of
11 filing a renewed motion for summary adjudication. (Mukherjee Decl., at ^ 7). On November 19,2018,
12 without providing any prior notice. Defendant filed the Renewed MSA. (Id. at f 8).
13 On November 27, 2018, four (4) business days after Defendant served the renewed MSA,
14 Plaintiffs provided Defendant a draft stipulation to continue the hearing date and briefing schedule on
15 the motion for class certification such that the scope of the claims and the proposed class are consistent
16 with the order on the Renewed MSA, scheduled to be heard on Febmary 4, 2018. (Mukherjee Decl., at
17 ^ 9). On November 28, 2018, Defendant responded to Plaintiffs and stated that it would not agree to
18 continue the briefing schedule on the motion for class certification necessitating the filing of this motion.
19 (Exhibit 4). On December 5, 2018, Plaintiffs filed the Motion to Continue Hearing Date and Briefing
20 Schedule Relating to Class Certification ("Motion to Continue"). (Mukherjee Decl., T| 3).
21 Even if the Motion to Continue had been filed on the day Plaintiffs received Defendant's
22 Renewed MSA, the Motion to Continue could not be heard before December 14,2018, which is the date
23 Plaintiffs must file the motion for class certification and Defendant must file the motion for
24 decertification. This ex parte application is, therefore, necessary to request that the Court issue an order
25 on Plaintiffs' Motion to Continue in advance of the current class certification related motion filing
26 deadline of December 14,2018.
27 On December 5, 2018 at approximately 11:45 a.m.. Plaintiffs provided notice of this ex parte
28 application and provided courtesy copies of the Motion to Continue. (Mukherjee Decl., at \ 10).
PLAINTIFF'S EXPARTE APPLICATION
CASE No. 34-2017-00210560-CU-OE-GDS
1 Defendant has indicated that this ex parte application will be opposed. (Id.).
2
3 HI. ARGUMENT
4 Ex parte relief is appropriate where, as here, a party will suffer irreparable harm without an order
5 shortening time to hear a motion. Pursuant to Califomia Rule of Court 3.1202(c), a party may seek ex
6 parte relief where there is a possibility of irreparable harm or where there is a statutory basis for granting
7 relief ex parte. Califomia Rule of Court 3.1300(b) provides that a court, on its own motion or on
8 application for an order shortening time supported by a declaration showing good cause, may prescribe
9 shorter times for the briefing of motions.
10 A. Good Cause Exists for an Order Shortening Time on the Motion to Continue
11 The deadline for Plaintiffs file the motion for class certification is December 14, 2018. On
12 November 28,2018, Defendant notified Plaintiffs that Defendant would not agree to continue the briefing
13 schedule and hearing date on the motions related to class certification. Plaintiffsfiledthe Motion to
14 Continue on December 5,2018 and pursuant to the Califomia Code of Civil Procedure, the motion cannot
15 statutorily be heard prior to December 14,2018 without an ex parte order by the Court. Even if Plaintiffs
16 filed the Motion to Continue on November 20,2018, the day on which Plaintiffs received the Renewed
17 MSA, the Motion to Continue could only not be statutorily noticed for hearing before December 14,2018
18 and, therefore, this ex parte application was unavoidable.
19 As explained above, prior to physical receipt of the Renewed MSA on November 20, 2018,
20 Plaintiffs received no indication from Defendant that Defendant had any intention on filing a renewed
21 motion for summary adjudication. Indeed, Defendant failed to notify Plaintiffs as well as the Court
22 during the November 9, 2018 and failed to express any potential intent on filing the Renewed MSA in
23 the case management conference statement. If Defendant has properly provided notice of the Renewed
24 MSA, Plaintiffs could have filed the Motion to Continue well in advance of the December 14, 2018
25 deadline to file the motion for class certification to avoid the need to burden the Court with this ex parte
26 application.
27 ///
28 III • -
PLAINTIFF'S EXPARTE APPLICATION
CASE No. 34-2017-00210560-CU-OE-GDS
1 B. Plaintiffs Will Suffer Irreparable Harm If a Ruling on PlaintifTs Motion to
Continue Is Not Issued Before the December 14.2018 Class Certification Motion and
2 Decertification Filing Deadlines
3 To the extent the Court grants Plaintiffs' Motion to Continue, the Parties' deadlines to file the
4 motions related to class certification will be continued from December 14, 2018 until a date after the
5 mling on Defendant's pending Renewed MSA. If the Court does not mle on Plaintiffs' Motion to
6 Continue before December 14,2018, Plaintiffs will be forced to file a motion for class certification before
7 a mling on Defendant's Renewed MSA. Given that the result of the Renewed MSA could affect the
8 claims Plaintiffs may seek to certify and the way Plaintiffs may present the theory of liability, a
9 continuance is needed so the motion for class certification and opposition to the decertification motion
10 can rely on the Renewed MSA ruling.
11 A court's determination as to whether class certification is appropriate does not tum on whether
12 the claims asserted are legally or factually meritorious, but it does require an examination of issues
13 involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 (2012).
14 "In particular, whether common or individual questions predominate will often depend upon resolution
15 of issues closely tied to the merits. To assess predominance, a court 'must examine the issues framed by
16 the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (intemal citations
17 omitted).
18 Thus, a decision on a motion for summary adjudication has implications for a motion for
19 class certification. See Archer v, United Rentals, Inc., 195 Cal. App. 4th 807, 812 (2011 )(reversing an
20 order denying class certification because the court also reversed an aspect of the trial court's order
21 granting the defendant's motion for summary adjudication). A decision either way will impact the
22 definitions of the proposed classes and the claims those classes assert. Id. A decision as to the merits
23 of one or more causes of action will alter the analysis required to determine whether common
24 questions predominate because such an analysis requires an investigation as to the resolution of
25 the merits ofthe case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024.
26 In mling on whether Defendant failed to include cash in lieu payments in the regular rate, the
27 Court will base its mling on the facts relevant to this dispute. In so doing, the Court will instmct the
28 parties as to those facts that are tmly the ones that create a triable issue of fact. Therefore, leaming what
PLAINTIFF'S EXPARTE APPLICATION
CASE No. 34-2017-00210560-CU-OE-GDS
1 those relevant triable issues are is critical for Plaintiffs to argue in the motion for class certification how
2 those triable issues of fact can be adjudicated based on common evidence.
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4 IV. REQUESTED RELIEF
5 Plaintiffs request that the Court expedite the hearing date on the Motion to Continue and shorten
6 the briefing schedule to accommodate the hearing date such thatthe Motion to Continue is mled on prior
7 to December 14,2018. In the altemative. Plaintiffs respectfully request that the Court grant Plaintiffs'
8 Motion to Continue on December 7,2018 and continue the briefing schedules and hearing date associated
9 with the class certification-related motions. As explained above, good cause exists for Plaintiffs'
10 requested relief as without the shortened time on the hearing. Plaintiffs will not have a mling on the
11 Motion to Continue before the current deadline to file the certification and decertification motions. Also
12 as explained above, since Plaintiffs did not receive any notice of Defendant's Renewed MSA until
13 November 20, 2018, Plaintiffs' Motion to Continue could not have been heard as a statutorily noticed
14 motion given the December 14, 2018 class certification deadline. Finally, Defendant will not be
15 prejudiced by the Court's granting in this ex parte while Plaintiffs would be severely prejudiced and
16 would suffer irreparable harm if the ex parte was denied.
17
18 V. CONCLUSION
19 For the foregoing reasons. Plaintiff respectfully requests that the Court grant the ex parte
20 application and advance the hearing forthe Motion to Continue. In the altemative. Plaintiffs respectfully
21 request that the Court grant Plaintiffs' Motion to Continue on December 7,2018 and continue the briefing
22 schedules and hearing date associated with the class certification-related motions as outlined in the
23 Motion to Continue.
24
25 Dated: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP
26
27 By:
'iya Mukherjee
28 Counsel for Plaintiff And^a Spears
PLAINTIFF'S EXPARTE APPLICATION
CASE No. 34-2017-00210560-CU-OE-GDS
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217)
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara
La Jolla, CA 92037
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232
6
Attomeys for Plaintiff Andrea Spears
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SACRAMENTO
10 ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
11 similarly situated.
Plaintiff, (Class Action)
12
[PROPOSED] ORDER GRANTING
13 PLAINTIFF'S EXPARTE APPLICATION
HEALTH NET OF CALIFORNIA, INC., a FOR ORDER SHORTENING TIME ON
14 Califomia Corporation; and Does 1 through PLAINTIFF'S MOTION TO CONTINUE
50, inclusive. HEARING DATE AND BRIEFING
15 Defendants. SCHEDULE RELATING TO CLASS
CERTIFICATION
16 TOMAS R. ARANA, on behalf of himself,
all others similarly situated. Hearing Date: December 7, 2018
17 Plaintiff, Hearing Time: 3:00 p.m.
V.
18 Judge: Hon. Alan G. Perkins
19 HEALTH NET OF CALIFORNIA, INC., a Dept.: 35
Califomia corporation; and DOES 1-50,
20 inclusive. Action Filed: April 5, 2017
Defendant.
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[PROPOSED] ORDER GRANTING PLAINTIFF'S EX PARTE APVUCMIOI^
CASE No. 34-2017-00210560-CU-OE-GDS
1 On December 7, 2018, the Court heard Plaintiffs Ex Parte Application which requested an
2 Order Shortening Time on Plaintiffs' Motion to Continue Hearing Date and Briefing Schedule
3 Relating to Class Certification ("Motion to Continue"). The Court rules on Plaintiffs ex parte
4 applications as follows:
5 Plaintiffs ex parte application is GRANTED.
6 Plaintiffs' Motion to Continue shall be heard on .
7 In the altemative, the Court GRANTS Plaintiffs Motion to Continue.
8 The hearing on Motions related to Class Certification is continued from April 11, 2019 to
9 , 2019. The briefing schedule shall be set as follows:
10 The motion for class certification and motion for decertification filing deadline: April 12,
11 2018;
12 Any opposition to the opening class certification related motions: May 17, 2019;
13 Any reply in response: June 14, 2019
14
15
16 IT IS SO ORDERED.
17
18
Dated:
19
20 THE HONORABLE ALAN G. PERKINS
JUDGE OF THE SUPERIOR COURT OF CALIFORNIA
21 FOR THE COUNTY OF SACRAMENTO
22
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[PROPOSED] ORDER GRANTING PLAINTIFF'S EXPARTE APPLICATION
CASE No. 34-2017-00210560-CU-OE-GDS
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) FILED/ENDORSED Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara La Jolla, CA 92037 DEC - 5 2018 5 Telephone: (858)551-1223 Facsimile: (858) 551-1232 BY: E. Toscano 6 Deputy Clerk Attomeys for Plaintiff 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS 12 of herself and on behalf of all persons similarly situated. CLASS ACTION 13 Plaintiff, 14 PLAINTIFFS' EXPARTE APPLICATION FOR ORDER SHORTENING TIME ON PLAINTIFF'S 15 HEALTH NET OF CALIFORNIA, INC., a MOTION TO CONTINUE HEARING Califomia Corporation; and Does 1 through DATE AND BRIEFING SCHEDULE 16 50, inclusive. RELATING TO CLASS Defendants. CERTIFICATION 17 18 Hearing Date: December 7, 2018 TOMAS R. ARANA, on behalf of himself, Hearing Time: 3:00 p.m. 19 all others similarly situated, Judge: Hon. Alan G. Perkins 20 Plaintiff, Dept.: 35 21 Case filed: April 5,2017 22 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1-50, 23 inclusive. 24 Defendant. 25 26 27 S 28 in PLAINTIFF'S EXPARTE APPLICATION CASE No. 34-2017-00210560-CU-OE-GDS 1 PLEASE TAKE NOTICE that on December 7,2018 at 3:00 p.m., pursuantto Califomia Rules 2 of Court, Rule 3.1200, et seq.. Plaintiffs will apply to the Court ex parte for the entry of an order 3 shortening time on the motion to Continue Hearing Date and Briefing Schedule Relating to Class 4 Certification ("Motion to Continue"). The memorandum of points and authorities for the Motion to 5 Continue is attached as Exhibit 1 to the Declaration of Piya Mukherjee, filed and served herewith'. 6 PlaintifPs ex parte application will be heard in Department 35 of the Superior Court of Califomia, 7 County of Sacramento Gordon D. Schaber Courthouse located at 720 Ninth Street, Sacramento, CA 8 95814. 9 This Application is made on the grounds that good cause exists to enter the order to shorten time 10 on the Motion to Continue as Defendant, without providing any prior notice, filed a Renewed Motion 11 for Summary Adjudication on November 19,2018 which is set for hearing on Febmary 4,2019 and the 12 present deadline for Plaintiffs to file the motion for class certification and for Defendant to file the 13 motion for decertification is December 14,2018. (Mukherjee Decl., 14 ). Without an order shortening 14 time on the Motion to Continue, filed on December 5, 2018, pursuant to motion briefing per the 15 Califomia Code of Civil Procedure, Plaintiffs' Motion to Continue would not be heard until after the 16 current deadline for Plaintiffs to file the motion for class certification. Plaintiffs would suffer 17 irreparable harm by filing a motion for class certification before a mling on Defendant's Renewed 18 Motion for Summary Adj udication because the outcome of Defendant's Renewed Motion for Summary 19 Adjudication will affect how Plaintiffs will present the common predominance theories of liability in 20 the upcoming motion for class certification as well as the anticipated opposition to Defendant's 21 forthcoming decertification motion. 22 Notice of this Ex Parte Application was given in accordance with Califomia Rule of Court 23 3.1203. (/t/.at| 10. Exhibit 5). This Application is based on the attached Memorandum of Points and 24 Authorities, the accompanying declaration of Piya Mukherjee, all other papers filed in this action, the 25 argument that shall be heard in this matter, and all other matters of which the Court may take notice. 26 27 ' All exhibits are attached to the Declaration of Piya Mukherjee ("Mukherjee Decl."), filed and served herewith. 28 PLAINTIFF'S EXPARTE APPLICATION -2- CASE No. 34-2017-00210560-CU-OE-GDS 1 Pursuant to CRC 3.1202(a), the names, address and telephone number of Defendant's attomeys 2 are as follows: 3 Timothy J. Long (tjlong@orrick.com) Nicholas J. Horton (nhorton@orrick.com) 4 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 5 Sacramento, CA 95814-4497 Telephone: (916) 447-9200 6 Facsimile: (916) 329-4900 7 Pursuant to CRC 3.1203, Plaintiffs gave notice of this ex parte application to Defendant. (Id.). 8 As of the filing of this application, Defendant has indicated that the ex parte application will be 9 opposed. (Id.). No prior ex parte applications have been filed in this matter. (Id.). 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S EXPARTE APPLICATION -3- CASE No. 34-2017-00210560-CU-OE-GDS 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 L INTRODUCTION 3 Plaintiffs hereby apply ex parte for an order shortening time on Plaintiffs' Motion to Continue 4 Hearing Date and Briefing Schedule Relating to Class Certification ("Motion to Continue"). If Plaintiffs' 5 motion was heard as statutorily required by the Califomia Code of Civil Procedure, the Motion to 6 Continue could not be heard before the current deadline for Plaintiffs to file the motion for class 7 certification and Defendant tofilethe motion for decertification which is December 14,2018. A hearing 8 date earlier than December 14, 2018 is, therefore, necessary. Plaintiffs cannot wait for a ruling on the 9 Motion to Continue before the motion for class certification would need to be filed based on the present 10 filing deadline of December 14, 2018. As such, good cause exists to shorten time on the Motion to 11 Continue. 12 Good cause also exists because Plaintiffs' Motion to Continue could not have been filed earlier. 13 Plaintiffs did not know that a continuance would need to be requested because Defendant only filed the 14 Renewed Motion for Summary Adjudication ("Renewed MSA") on November 19, 2018, without 15 providing Plaintiffs or the Court with any prior notice. (Mukherjee Decl., at | | 6-8). Plaintiffs sought 16 to avoid the filing of the Motion to Continue as well as this Ex Parte application by asking Defendant 17 to stipulate to a reasonable continuance of the class certification motion hearing date and briefing 18 schedule but Defendant refused Plaintiffs' request. (Id. at \ 9). Defendant's Renewed MSA was received 19 by Plaintiffs' counsel on November 20,2018. (Id. a t | 8). Even if Plaintiffsfiledthe Motion to Continue 20 on the same day it received the Renewed MSA and personally served the Motion to Continue, the earliest 21 hearing date on the motion would be December 14,2018 (to the extent the Court was available that day) 22 which is the same day Plaintiffs would need to file the motion for class certification. As such, this ex 23 parte application was unavoidable. 24 Defendant's Renewed MSA, filed only on November 19,2018, is set to be heard on February 4, 25 2019. Given that the result of the Renewed MSA could affect the claims Plaintiffs may seek to certify 26 and the way Plaintiffs may present the theory of liability, a continuance is needed so the motion for class 27 certification and opposition to the decertification motion can rely on the Renewed MSA mling. 28 PLAINTIFF'S EXPARTE APPLICATION -4- CASE No. 34-2017-00210560-CU-OE-GDS 1 The class certification motion briefing schedule and hearing date have been continued only once 2 before when the deadline to file the class certification motions fell only (1) day after the hearing date on 3 Defendant's initial motion for summary adjudication. Plaintiffs' requested extension as set forth in the 4 Motion to Continue is reasonable in light of the fact that it will allow the motions related to class 5 certification to be filed after a mling on Defendant's dispositive Renewed MSA to ensure that the scope 6 of the claims and proposed class set forth in the motions is consistent with the ruling on the Renewed 7. MSA. Plaintiffs, therefore, respectfully request that the Court grant Plaintiffs' Ex Parte Application for 8 an Order Shortening Time on the Motion to Continue and/or grant Plaintiffs' Motion to Continue and 9 continue the April 11, 2019 hearing date on the motions related to class certification to June 28, 2019, 10 or a date thereafter convenient for the Court and the related briefing schedules as requested in the Motion 11 to Continue. 12 13 II. FACTUAL BACKGROUND 14 The briefing schedule regarding Plaintiffs' Motion for Class Certification and Defendant's Motion 15 for Decertification was continued by the Parties by stipulation in order to prevent requiring Plaintiffs to 16 file motions related to class certification one (1) day after the hearing on Defendant's initial motion for 17 summary adjudication. (Mukherjee Decl., at ^ 4). Plaintiffs initially filed a motion to continue the 18 hearing date and briefing schedule. (Id.). Plaintiffs' motion was eventually taken off calendar because 19 Defendant agreed to stipulate to Plaintiffs' requested continuance so that Plaintiffs' motion for class 20 certification could adequately address the Court's ruling on the motion for summary adjudication. (Id.). 21 The current briefing schedule was set as follows: 22 The motion for class certification and motion for decertification filing deadline: December 14, 23 2018; 24 Any opposition to the opening class certification related motions: February 15, 2019; 25 Any reply in response: March 15, 2019; and 26 Hearing as to the motions related to class certification: April 11, 2019 at 10:00 a.m. (Id.) 27 On October 23, 2018, Judge Kmeger in Department 54 issued a mling granting in part and 28 PLAINTIFF'S EXPARTE APPLICATION -5- CASE No. 34-2017-00210560-CU-OE-GDS 1 denying in part Defendant's initial motion for summary adjudication. (Exhibit 2). The intent behind the 2 continuation of the class certification motion briefing schedule was to ensure that Plaintiffs' motion for 3 class certification would be tailored to address Judge Kmeger's mling on the initial motion for summary 4 adjudication. 5 On October 26,2018, Defendantfiledand served a case management conference statement which 6 included a section regarding "dispositive motions." fExhibit 3). Therein, while Defendant states that it 7 is considering whether to appeal the ruling on the motion for summary adjudication, Defendant fails to 8 state that it is considering filing a renewed motion for summary adjudication. (Exhibit 3. 2:7-14). 9 Thereafter, the Parties appeared before this Court on November 9, 2018 for a case management 10 conference where Defendant, again, did not notify this Court or Plaintiffs that it had any intention of 11 filing a renewed motion for summary adjudication. (Mukherjee Decl., at ^ 7). On November 19,2018, 12 without providing any prior notice. Defendant filed the Renewed MSA. (Id. at f 8). 13 On November 27, 2018, four (4) business days after Defendant served the renewed MSA, 14 Plaintiffs provided Defendant a draft stipulation to continue the hearing date and briefing schedule on 15 the motion for class certification such that the scope of the claims and the proposed class are consistent 16 with the order on the Renewed MSA, scheduled to be heard on Febmary 4, 2018. (Mukherjee Decl., at 17 ^ 9). On November 28, 2018, Defendant responded to Plaintiffs and stated that it would not agree to 18 continue the briefing schedule on the motion for class certification necessitating the filing of this motion. 19 (Exhibit 4). On December 5, 2018, Plaintiffs filed the Motion to Continue Hearing Date and Briefing 20 Schedule Relating to Class Certification ("Motion to Continue"). (Mukherjee Decl., T| 3). 21 Even if the Motion to Continue had been filed on the day Plaintiffs received Defendant's 22 Renewed MSA, the Motion to Continue could not be heard before December 14,2018, which is the date 23 Plaintiffs must file the motion for class certification and Defendant must file the motion for 24 decertification. This ex parte application is, therefore, necessary to request that the Court issue an order 25 on Plaintiffs' Motion to Continue in advance of the current class certification related motion filing 26 deadline of December 14,2018. 27 On December 5, 2018 at approximately 11:45 a.m.. Plaintiffs provided notice of this ex parte 28 application and provided courtesy copies of the Motion to Continue. (Mukherjee Decl., at \ 10). PLAINTIFF'S EXPARTE APPLICATION CASE No. 34-2017-00210560-CU-OE-GDS 1 Defendant has indicated that this ex parte application will be opposed. (Id.). 2 3 HI. ARGUMENT 4 Ex parte relief is appropriate where, as here, a party will suffer irreparable harm without an order 5 shortening time to hear a motion. Pursuant to Califomia Rule of Court 3.1202(c), a party may seek ex 6 parte relief where there is a possibility of irreparable harm or where there is a statutory basis for granting 7 relief ex parte. Califomia Rule of Court 3.1300(b) provides that a court, on its own motion or on 8 application for an order shortening time supported by a declaration showing good cause, may prescribe 9 shorter times for the briefing of motions. 10 A. Good Cause Exists for an Order Shortening Time on the Motion to Continue 11 The deadline for Plaintiffs file the motion for class certification is December 14, 2018. On 12 November 28,2018, Defendant notified Plaintiffs that Defendant would not agree to continue the briefing 13 schedule and hearing date on the motions related to class certification. Plaintiffsfiledthe Motion to 14 Continue on December 5,2018 and pursuant to the Califomia Code of Civil Procedure, the motion cannot 15 statutorily be heard prior to December 14,2018 without an ex parte order by the Court. Even if Plaintiffs 16 filed the Motion to Continue on November 20,2018, the day on which Plaintiffs received the Renewed 17 MSA, the Motion to Continue could only not be statutorily noticed for hearing before December 14,2018 18 and, therefore, this ex parte application was unavoidable. 19 As explained above, prior to physical receipt of the Renewed MSA on November 20, 2018, 20 Plaintiffs received no indication from Defendant that Defendant had any intention on filing a renewed 21 motion for summary adjudication. Indeed, Defendant failed to notify Plaintiffs as well as the Court 22 during the November 9, 2018 and failed to express any potential intent on filing the Renewed MSA in 23 the case management conference statement. If Defendant has properly provided notice of the Renewed 24 MSA, Plaintiffs could have filed the Motion to Continue well in advance of the December 14, 2018 25 deadline to file the motion for class certification to avoid the need to burden the Court with this ex parte 26 application. 27 /// 28 III • - PLAINTIFF'S EXPARTE APPLICATION CASE No. 34-2017-00210560-CU-OE-GDS 1 B. Plaintiffs Will Suffer Irreparable Harm If a Ruling on PlaintifTs Motion to Continue Is Not Issued Before the December 14.2018 Class Certification Motion and 2 Decertification Filing Deadlines 3 To the extent the Court grants Plaintiffs' Motion to Continue, the Parties' deadlines to file the 4 motions related to class certification will be continued from December 14, 2018 until a date after the 5 mling on Defendant's pending Renewed MSA. If the Court does not mle on Plaintiffs' Motion to 6 Continue before December 14,2018, Plaintiffs will be forced to file a motion for class certification before 7 a mling on Defendant's Renewed MSA. Given that the result of the Renewed MSA could affect the 8 claims Plaintiffs may seek to certify and the way Plaintiffs may present the theory of liability, a 9 continuance is needed so the motion for class certification and opposition to the decertification motion 10 can rely on the Renewed MSA ruling. 11 A court's determination as to whether class certification is appropriate does not tum on whether 12 the claims asserted are legally or factually meritorious, but it does require an examination of issues 13 involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 (2012). 14 "In particular, whether common or individual questions predominate will often depend upon resolution 15 of issues closely tied to the merits. To assess predominance, a court 'must examine the issues framed by 16 the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (intemal citations 17 omitted). 18 Thus, a decision on a motion for summary adjudication has implications for a motion for 19 class certification. See Archer v, United Rentals, Inc., 195 Cal. App. 4th 807, 812 (2011 )(reversing an 20 order denying class certification because the court also reversed an aspect of the trial court's order 21 granting the defendant's motion for summary adjudication). A decision either way will impact the 22 definitions of the proposed classes and the claims those classes assert. Id. A decision as to the merits 23 of one or more causes of action will alter the analysis required to determine whether common 24 questions predominate because such an analysis requires an investigation as to the resolution of 25 the merits ofthe case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024. 26 In mling on whether Defendant failed to include cash in lieu payments in the regular rate, the 27 Court will base its mling on the facts relevant to this dispute. In so doing, the Court will instmct the 28 parties as to those facts that are tmly the ones that create a triable issue of fact. Therefore, leaming what PLAINTIFF'S EXPARTE APPLICATION CASE No. 34-2017-00210560-CU-OE-GDS 1 those relevant triable issues are is critical for Plaintiffs to argue in the motion for class certification how 2 those triable issues of fact can be adjudicated based on common evidence. 3 4 IV. REQUESTED RELIEF 5 Plaintiffs request that the Court expedite the hearing date on the Motion to Continue and shorten 6 the briefing schedule to accommodate the hearing date such thatthe Motion to Continue is mled on prior 7 to December 14,2018. In the altemative. Plaintiffs respectfully request that the Court grant Plaintiffs' 8 Motion to Continue on December 7,2018 and continue the briefing schedules and hearing date associated 9 with the class certification-related motions. As explained above, good cause exists for Plaintiffs' 10 requested relief as without the shortened time on the hearing. Plaintiffs will not have a mling on the 11 Motion to Continue before the current deadline to file the certification and decertification motions. Also 12 as explained above, since Plaintiffs did not receive any notice of Defendant's Renewed MSA until 13 November 20, 2018, Plaintiffs' Motion to Continue could not have been heard as a statutorily noticed 14 motion given the December 14, 2018 class certification deadline. Finally, Defendant will not be 15 prejudiced by the Court's granting in this ex parte while Plaintiffs would be severely prejudiced and 16 would suffer irreparable harm if the ex parte was denied. 17 18 V. CONCLUSION 19 For the foregoing reasons. Plaintiff respectfully requests that the Court grant the ex parte 20 application and advance the hearing forthe Motion to Continue. In the altemative. Plaintiffs respectfully 21 request that the Court grant Plaintiffs' Motion to Continue on December 7,2018 and continue the briefing 22 schedules and hearing date associated with the class certification-related motions as outlined in the 23 Motion to Continue. 24 25 Dated: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP 26 27 By: 'iya Mukherjee 28 Counsel for Plaintiff And^a Spears PLAINTIFF'S EXPARTE APPLICATION CASE No. 34-2017-00210560-CU-OE-GDS 1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara La Jolla, CA 92037 5 Telephone: (858)551-1223 Facsimile: (858) 551-1232 6 Attomeys for Plaintiff Andrea Spears 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 11 similarly situated. Plaintiff, (Class Action) 12 [PROPOSED] ORDER GRANTING 13 PLAINTIFF'S EXPARTE APPLICATION HEALTH NET OF CALIFORNIA, INC., a FOR ORDER SHORTENING TIME ON 14 Califomia Corporation; and Does 1 through PLAINTIFF'S MOTION TO CONTINUE 50, inclusive. HEARING DATE AND BRIEFING 15 Defendants. SCHEDULE RELATING TO CLASS CERTIFICATION 16 TOMAS R. ARANA, on behalf of himself, all others similarly situated. Hearing Date: December 7, 2018 17 Plaintiff, Hearing Time: 3:00 p.m. V. 18 Judge: Hon. Alan G. Perkins 19 HEALTH NET OF CALIFORNIA, INC., a Dept.: 35 Califomia corporation; and DOES 1-50, 20 inclusive. Action Filed: April 5, 2017 Defendant. 21 LL. 22 23 a> 24 25 26 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S EX PARTE APVUCMIOI^ CASE No. 34-2017-00210560-CU-OE-GDS 1 On December 7, 2018, the Court heard Plaintiffs Ex Parte Application which requested an 2 Order Shortening Time on Plaintiffs' Motion to Continue Hearing Date and Briefing Schedule 3 Relating to Class Certification ("Motion to Continue"). The Court rules on Plaintiffs ex parte 4 applications as follows: 5 Plaintiffs ex parte application is GRANTED. 6 Plaintiffs' Motion to Continue shall be heard on . 7 In the altemative, the Court GRANTS Plaintiffs Motion to Continue. 8 The hearing on Motions related to Class Certification is continued from April 11, 2019 to 9 , 2019. The briefing schedule shall be set as follows: 10 The motion for class certification and motion for decertification filing deadline: April 12, 11 2018; 12 Any opposition to the opening class certification related motions: May 17, 2019; 13 Any reply in response: June 14, 2019 14 15 16 IT IS SO ORDERED. 17 18 Dated: 19 20 THE HONORABLE ALAN G. PERKINS JUDGE OF THE SUPERIOR COURT OF CALIFORNIA 21 FOR THE COUNTY OF SACRAMENTO 22 23 G:\D\Dropbox\Pending LitigationVHealthnet- Spears\Continue Cert - 2nd\Ex Parte Shortening Time\proposed-order-OI .wpd 24 25 26 27 28 [PROPOSED] ORDER GRANTING PLAINTIFF'S EXPARTE APPLICATION CASE No. 34-2017-00210560-CU-OE-GDS