Preview
FILED/ENDORSED
1 Shaun Setareh (SBN 204514)
shaun@setarehlaw.com
2 Thomas Segal (SBN 222791) MAR 1 5 2019
thomas(^set arehlaw.com
3 SETAREH LAW GROUP By: K. Fav
315 South Beverly Drive, Suite 315
4 Beverly Hills, Califomia 90212
Telephone: (310)888-7771
5 Facsimile: (310)888-0109
6 Attomeys for Plaintiff TOMAS R. ARANA
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SACRAMENTO
10 UNLIMITED JURISDICTION
11
12 ANDREA SPEARS, an individual, on behalf of Consol. No. 34-2017-00210560-CU-OE-GDS
herself and on behalf of all persons similarly
13 situated. Assigned For All Purposes to the Honorable
Alan G. Perkins, Department 35
14 Plaintiff,
CLASS ACTION
15 vs.
16 HEALTH NET OF CALIFORNIA, INC., a PLAINTIFF'S REPLY IN SUPPORT OF
Califomia corporation; and DOES 1 through 50, MOTION FOR CLASS CERTIFICATION
17 inclusive,
18 Defendants. Date: April 11,2019 at 10:00 a.m.
Time: 10:00 a.m.
19 Courtroom: Department 35
TOMAS R. ARANA, on behalf of himself, all
20 others similarly situated.
21 Plaintiff,
22 vs.
23 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 through 50,
24 inclusive,
25 Defendants.
26
27
28
Consol. No. 34-2017-00210560-CU-OE-GDS Page 1 Spears v. Health Net of Califomia, Inc.
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 TABLE OF CONTENTS
2 I. INTRODUCTION 1
3 II. ARGUMENT 2
4 A. The class is ascertainable 2
5 B. The Claims of the Off-the-Clcok Telephone Time Sub-Class are Readily
6 Amenable to Class Adjudication 3
7 C. The Claims of the Computer Boot-Up Subclass Are Readily Amenable to Class
8 Adjudication 5
9 D. The Meal and Rest Breaks Claims are Readily Amenable to Class Certification of... 5
10 E. A Class Action Is Both Superior and Managemable 8
11 F. Arana's Claims are Typical of the Putative Class 9
12 G. There is No Legal Requirement for a Trial Plan, Where As Here, Statistical
13 Evidence Will be Used at Most to Prove Damages 10
14 H. The "Withdrawn" Declarations Should be Considered 11
15 III. CONCLUSION 13
16
17
18
19
20
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25
26
27
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Consol. No. 34-2017-00210560-CU-OE-GDS Pagei Spears v. Health Net of Califomia, Inc.
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 TABLE OF AUTHORITIES
2 CASES.
3 ABM Industries 0\>ertime Cases, 19 Cal.App.4* 277,302 (2018) 2
4 Accord Faulkinbury v. Boyd & Associates, Inc., 216 Cal.App.4* 220,235 (2013.) 8
5 Alberts v. Aurora Behavioural Healthcare, Inc., (2 Dist. 2015) 241 Cal.App.4''' 388, 398 8
6 B.W.L Custom Kitchen v. Owens-Illinois. Inc. (1987) 191 Cal.App.3d 1341,1354 7,10
7 Bradley v. Networkers International, LLC, (2013) 221 Cal.App.4* 1129,1155 5
8 Classen v. Weiler, 145 Cal. App. 3d 27,46 (1983) 10
9 Classen v. Weiler,
10 145 Cal.App.3d 27(1983) 10
11 Daniels v. Centennial Group, Inc., 16 Cal. App. 4th 467,473 (1993) 10
12 Duranv. U.S National Bank Ass'n, 59Cal.4'^ 1 (2014) 10
13 Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266.......; 7
14 Franco v.Arakelian Enterprises, Inc., 2012 Cal.App.LEXIS 1207 (Franco II), **81-82 9
15 Gentry v. Super. Ct. (Circuit City Stores, Inc.) (2007) 42 Cal .4th 443, 458- 59 9
16 Hernandez v. Mendoza. 199 Cal.App.3d 721 (1981) 7
17 In re Zeth S. 31 Cal.4* 396,414 n 11 (2003) 4
18 Jones V. Farmers Ins. Exch., (2 Dist. 2013) 221 Cal.App.4* 986, 996-997 5
19 Kamakahi v. American Society for Reproductive Medicine, 305 F.R.D. 164,193 (N.D. Cal. 2015).; 8
20 Lubin V. Wackenhut Corporation,20\6WL 6835499 * 9 (November 21,2016) 8
21 Martinez v. Joe's Crab Shack Holdings (2014) 231 Cal.App.4th 362,384 8
22 Reyes v. Board ofSuperxdsors ofSan Diego, supra, at p. 1278 .". 7
23 Sampson v. Parking Serv. 2000 Com, Inc. (2004) 117 Cal.App.4th 212,227 9
24 Tyson Foods. Inc. v. Bouaphakeo, 1136 S Ct. 1036 (2016) 7
25 STATUTES
26 Califomia Rule of Court 3.764(c)(3) 13
27 See Lab. Code §§ 98.1(c), 98.2,200,218.5,218.6,1194,2698(i) 9
28
Consol. No. 34-2017-00210560-CU-OE-GDS Page ii Spears v. Health Net qf Califomia, Inc.
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 '
2 MEMORANDUM OF POINTS AND AUTHORITIES
3 I. INTRODUCTION
4 Health Net does not dispute that the class and subclasses are numerous or that Plaintiff
5 Arana and his counsel are adequate. Instead, Health Net attempts to argue that the proposed
6 classes are not ascertainable or that common issues do not predominate, and that Plaintiff is
7 not typical. In so arguing, Health Net misapprehends both the facts and the law.
8 For example, Health Net misstates basic facts about Plaintiffs employment. One of the claims
9 in the case is that as evidenced by comparing phone records and time records, class members
10 spent time off-the-clock answering customer phone calls. Health Net asserts Plaintiff does not
11 have this claim because he did not answer phone calls during the class period. In fact, while
12 there was a large portion of the class period where Plaintiff was assigned to a project where he
13 did not answer phone calls, he retumed to his customer service position where he answered
14 phone calls.
15 The claims in this case are readily amenable to class certification. Plaintiff through his
16 expert has shown that putative class members spent substantial time logged in to Defendant's
17 phone system when they were clocked out of the timekeeping system, either at the beginning
18 or (in most) cases at the end of their shift. Health Net offers no explanation for this, except
19 unsupported speculation from its counsel that some class members may have forgotten to log
20 out of the phone system. The issue will be for a trier of fact to determine what inference to be
21 drawn from the fact that customer service workers were clocked out of the time keeping
22 system, but were still logged in to the phone system. If the trier of fact finds this proves off-
23 the-clock work, the class will win. If not. Health Net will win.
24 Similarly, the evidence shows undisputably that there is an issue where class members
25 who have to use a computer to clock in have to wait unpaid for it to boot up. Health Net's only
26 answer is that some class members were paid for this. That is a classic example of a damages
27 issue that does not defeat class certification. It is also an admission by Health Net that the
28 problem exists and that the time is compensable.
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 As to the meal and rest break claims. Plaintiffs theory of recovery is that Health Net's
2 policies are defective because they do not inform class members of what their recourse is if
3 they are not provided a meal or rest break. This theory is readily amenable to class
4 certification and those claims should be certified as well.
5 In order to defeat certification, Health Net also approached various of Plaintiff s
6 declarants and made deals with them where they would not be deposed if they "withdrew"
7 their declarations. This effort is particularly unavailing in light of the undisputed facts
8 regarding the phone call and computer boot-up time claims. The "withdrawal" declarations
9 that Health Net's counsel drafted for these declarants are themselves misleading. For example,
10 one declarant states that he received an email from Plaintiffs counsel and signed his
11 declaration "quickly" electronically, implying that he did not review it. Health Net specifically
12 cites to this as evidence that the declarations are inaccurate. But in fact, the evidence shows
13 that this class member reviewed the declaration, and emailed Plaintiffs counsel to request a
14 change to the declaration, which was made, before signing it.
15 Health Net's legal misstatements, factual misapprehensions, and chicanery with
16 declarants are no basis for denying certification. The motion should be granted.
17 H. ARGUMENT
18 A. The class is ascertainable.
19 Health Net's opposition misapprehends the law pertaining to ascertainability. As the
20 California Court of Appeal has explained:
21 "Ascertainability is achieved by defining the class in terms of objective characteristics
22 and common transaction facts making the ultimate identification of class members
23 possible when that identification becomes necessary." ABM Industries Overtime Cases,
24 19 Cal.App.4"' 277, 302 (2018).
25 Further: "a class is ascertainable if a plaintiff supplies a reasonable means of
26 identifying potential class members and the class is defined in terms of objective
27 characteristics and common transactional facts sufficient tp allow a class member to identify
28 him or herself as having a right to recover based on that definition. So long as these
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 requirements are met a class is ascertainable even i f the definition pleads ultimate facts or
2 conclusions of law." Id. at 303.
3 The classes proposed for certification meet that standard. For example, the Off-the-
4 Clock Telephone Time Sub-Class is defined as:
5 "All Class members who, based on Defendants payroll, timeclock, telephone, and other
6 electronic records were utilizing telephones or other electronic systems before clocking
7 in at the start of their shifts or after clocking out at the end of their shift during the
8 Relevant Time Period."
9 This definition involves objective transactional facts, and class members can be
10 identified by comparing time records to records of when class members were logged in to
11 Defendants' phone system.
12 Similarly, the Computer Boot-Up Sub-Class is defined as: "All Class members who
13 logged onto or turned on a computer to access any timeclock or timekeeping system to record
14 their hours worked." This definition also involves objective transactional facts and
15 membership can be determined from the electronic time records.
16 The Meal Period and Rest Period Sub-Classes are defined objectively in tenns of shift
17 length. And class members can self identify as to whether they received their meal and rest
18 breaks.
19 Importantly, ascertainability is not defeated simply because the class may include
20 individuals who are not entitled to recover: "A class action is not inappropriate simply
21 because each member of a class may at some point be required to make an individual showing
22 as to his or her eligibility for recover. . . [a]class of all employees in certain job categories is
23 ascertainable even though some employees may not have worked overtime and thus may not
24 be entitled to any recovery. Nor should a court decline to certify a class simply because it is
25 afraid that insurmountable problems may later appear at the remedy stage, (citation) Thus . . .
26 possible over-inclusiveness in the method proposed for identifying potential class members
27 does not defeat ascertainability."/f/. at 304.
28 B. The Claims of the Off-the-Clock Telephone Time Sub-Class are Readily Amenable to
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 Class Adjudication.
2 As Plaintiff and other declarants confirm, Health Net employees often worked off-the-
3 clock fielding phone calls that occurred after they clocked out for the day or during their meal
4 break. Masaya Decl. 1 10; Arana Decl. Tf 8. Plaintiffs expert conducted an analysis in which
5 he. compared time punch records to log in and log out records from Health Net's phone system
6 for putative class members. This analysis showed that 4.8% of records show a login to the
7 phone system prior to the start of the work day and that 40.7% of shifts show a logoff
8 subsequent to the punch out. Toney Decl. f 12.
9 Plaintiff will ask a trier of fact to infer based on this that off-the-clock work is
10 occurring where, for example, a call center employee is logged into the phone system beyond
11 the end of a call center employee's scheduled shift. Health Net does not dispute that the
12 discrepancy exists or offer any evidence that off-the-clock work is not the reason for the
13 discrepancy. Health Net speculates that the numbers are skewed by employees who failed to
14 log out at the end of the day. But Health Net provides no evidence that this occurred, citing
15 only to its attorney's questions on this point at the deposition of Plaintiff s expert. Speculation
16 by Health Net's attomey, of course, is not evidence. E.g., In re Zeth S., 31 Cal.4'*' 396, 414 n
17 11 (2003): "It is axiomatic that the unsworn statements of counsel are not evidence."
18 Not only does Health Net provide no evidence of this, it is not even stated as a reason
19 for denying certification in Health Net's discovery responses. Segal Decl. Exh. 2,
20 Interrogatory Response No. 6. And, Health Net's speculation on this point, at best, raises a
21 class-wide defense.
22 In fact. Health Net's opposition confirms that the employees logged in to the phone
23 system are not making personal calls. As Health Net declarant Will Montes states: "Customer
24 Service Representatives have a phone at their workstations for the sole purpose of answering
25 customer calls." Montes Decl. TI 3. Since the putative class members are not making personal
26 phone calls, they must be working when logged into the phone system.
27 Plaintiff, then, has offered class-wide evidence from which a trier of fact can infer that
28 off-the-clock work is occurring. If the trier of facts finds based on that evidence that off-the-
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 clock work was occurring, the class will win. If not, then Health Net will win.
2 Perhaps because it has no substantive answer to why this claim cannot be certified,
3 Health Net resorts to misrepresentations. Health Net asserts that class representative Arana did
4 not field phone calls during the class period. Opp. at 19 fn 14: "Arana testified that when he
5 started working full time on his 'unique' project in October 2010, he completely stopped
6 taking customer calls . . . Thus, Arana never answered customer calls as an exempt employee
7 during the class period." However, the facts are as follows. Arana was employed as a
8 Customer Service Representative from Febmary 25, 2008 until November 15, 2015. On
9 November 16, 2015 he was promoted to an exempt position as a Contact Center Analyst. His
10 deposition testimony which Health Net cites to is that from late 2010 until January 2015 he
11 was working on a project which did not involve answering phone calls. From January 2015
12 until November 2015 he did answer customer phone calls. Arana Reply Decl. TITI 3-4.
13 Health Net also asserts misleadingly that: "Arana's own expert admits, records
14 demonstrating that employees were logged into the phone system despite being clocked out
15 does not establish that employees were working off the clock." Opp. at 15:21-23. In fact,
16 expert James Toney admitted no such thing. Instead Mr. Toney stated that he had not been
17 asked to explain the reason why there was a difference between punch times and log in times
18 for the phone system: Q. The reason why those instances are occurring is not within your
19 opinion? A. Correct. Q. And you weren't asked to do that? A. Yes." Long Decl. Exh F. at
20 70:20-24.
21 No doubt there are variations in how much time each individual class member spent off
22 the clock. But that can be determined by reference to the phone system log in records. And, of
23 course, it is well settled that variations in damages do not preclude certification. E.g., Jones v.
24 Farmers Ins. Exch.. (2 Dist. 2013) 221 Cal.App.4"' 986, 996-997 (variations in extent to which
25 workers performed off the clock work was damages issue which did not defeat certification;
26 Bradley v. Networkers International, LLC, (2013) 221 Cal.App.4**' 1129, 1155 (same).)
27
28
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 C. The Claims of the Computer Boot-Up Subclass Are Readily Amenable to Class
2 Adjudication.
3 The claims of the Computer Boot-Up Subclass turn on an overarching common
4 question: is the time that class members spend waiting for their computer to boot up so that
5 they can clock in compensable?
6 Health Net does not deny that this occurred during the class period. Instead, Health
7 Net's argument is that this did not occur to everybody. Opposition at 17:9-15. Health Net also
8 asserts that any such instances would be a violation of company policy. The policy to which
9 Health Net cites states that: "Accurately recording time worked is the responsibility of every
10 associate." Rodes Decl. Exh. A, FNCA001972. This of course is a generic policy that says
11 absolutely nothing about what employees are to do if it takes a few minutes for their computer
12 to boot up so that they can log on. Employees very well might not regard that waiting time as
13 "time worked" even though it is under California law.
14 Indeed most of Health Net's declarants do not actually state that they enter their time
15 so that they are compensated for the time waiting for the compute to boot up. For example,
16 declarant Zeena Aldrete states that: "When I reboot on Monday, it takes a little longer to
17 reboot into the system, but takes at most 2 minutes to do so. Aldrete Declaration TI 2. She does
18 not state that she enters her time so that she is paid for the time waiting for the computer to
19 reboot, or that she was trained to do this.
20 Some of Health Net's declarants do state that they changed their time sheet to reflect
21 the time waiting for the computer to boot up. Hidalgo Decl. TI 13 (stating that he sometimes
22 has to wait 5 to 10 minutes but that he will "manually go into the time sheet to reflect when I
23 began working, accounting for the computer lag time.") This confirms the existence of the
24 problem, and based on the majority of the declarations, most Health Net employees had no
25 idea that they should do this.
26 There is no doubt that this problem exists and that there were class members who were
27 not compensated for this time. The claims of all class members will tum on the question of
28 whether this time was compensable. In fact, Health Net's arguments that some class members
ConsoL No. 34-2017-00210560-CU-OE-GDS Page 6 Spears v. Health Net ofCdlifomia, Inc
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 were compensated for this time is an admission that the time is compensable. As set forth
2 above, differences in the amount of damages do not defeat certification. And, the Class can
3 present expert testimony, as Healthnet likely will as well, to establish the approximate amount
4 of uncompensated time Class members spent waiting for computers to boot up. The U.S.
5 Supreme Court has held that this is entirely appropriate in wage and hour cases. Tyson Foods,
6 Inc. V. Bouaphakeo, 1136 S Ct. 1036 (2016).
7 "[A] class action is not inappropriate simply because each member of the class may at
8 some point be required to make an individual showing as to his or her eligibility for recovery
9 or as to the amount of his or her damages." Employment Development Dept. v. Superior Court
10 (1981) 30 Cal.3d 256, 266. "[T]he necessity for class members to individually establish
11 eligibility and damages does not mean individual questions predominate." Reyes v. Board of
12 Supervisors of San Diego, supra, at p. 1278; B. W.I. Custom Kitchen v. Owens-Illinois, Inc.
13 (1987) 191 Cal.App.3d 1341, 1354 [presence of individual damages cannot bar certification].
14 "Class actions serve an important role by establishing a judicial process within which the
15 claims of many individuals can be resolved simultaneously, eliminating repetitive litigation
16 and providing claimants with a practical method of securing redress for claims which because
17 of their size do not warrant individual litigation." Reyes, supra, at p. 1270. "As a general rule
18 , if the defendant's liability can be determined by facts common to all members of the class, a
19 class will be certified even if the members must individually prove their damages." Brinker
20 supra at] 022.
21 Further, class certification should not be denied based on Health Net's failure to keep
22 records of this off-the-clock work. Hernandez v. Mendoza, 199 Cal.App.3d 721, 727-728
23 (1981): "Where the employer has failed to keep records required by statute, the consequences
24 for such failure should fall on the employer, not the employee."
25 D. The Meal and Rest Break Claims are Readily Amenable to Class Certification.
26 Plaintiff asserts that Defendant is liable for meal and rest break violations both because
27 class members missed meal and rest breaks due to pressure of work, and because Defendant's
28 policies do not advise class members of their recourse for missed meal and rest breaks.
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 Defendant disputes that it was required to inform employees of the recourse that they had for
2 missed meal and rest breaks. In so asserting, Defendant is improperly arguing the merits ofthe
3 claim. Of course the merits are not at issue. "A motion to certify a class is not a trial on the
4 merits [it is] not a license for a free-floating inquiry into the validity of the complaint's
5 allegations, rather, resolution of disputes over the merits of a case must generally be
6 postponed until after class certification has been denied." (Alberts v. Aurora Behavioural
7 Healthcare, Inc., (2 Dist. 2015) 241 Cal.App.4"' 388, 398.) Instead, "the trial court must
8 consider whether the theory of recovery advanced by the plaintiff is likely to prove amenable
9 to class certification."
10 Of course, i f Health Net is correct on the law, it should welcome class certification.
11 E.g., Kamakahi v. American Society for Reproductive Medicine, 305 F.R.D. 164, 193 (N.D.
12 Cal. 2015): "Where a defendant has a classwide defense, class adjudication is a course it
13 should welcome as all class members who did not opt out of the class would be bound by the
14 judgment."
15 Under Califomia law, whether any individual employee received a meal break is a
16 damages issue. Lubin v. Wackenhut Corporation,20]6 WL 6835499 * 9 (November 21, 2016):
17 "Whether or not the employee was able to take the required break goes to damages." Accord
18 Faulkinbury v. Boyd & Associates, Inc.. 216 Cal.App.4"' 220, 235 (2013.) As set forth above,
19 differences in damages do not preclude certification.
20 E. A Class Action Is Both Superior and Manageable.
21 It can hardly be disputed that a class action is the superior method of handling these
22 claims. In fact. Health Net while opposing class certification fails to offer any reasonable
23 altemative that class members could use to pursue their claims.
24 In view of the theoi-etical alternatives that proposed class members could potentially
25 utilize a class action is plainly superior to all of them . . Martinez v. Joe's Crab Shack
26 Holdings (2014) 231 Cal.App.4th 362,384, as modified on denial ofreh'g (Dec. 3, 2014),
27 review denied(Feb. 11, 2015) (stating that "we understand from Brinker, Duran and Ayata that
28 classwide relief remains the preferred method of resolving wage and hour claiins, even those
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 in which the facts appear to present difficult issues of proof."). Under a representative PAGA
2 action, Plaintiff has to provide much, if not all, of the same proof as a class action without
3 providing the same relief. Further, the putative class members in this case all have relatively
4 small amounts of money at stake and the claims at issue are time-consuming and costly to
5 pursue and filled with nuances (See Gentry v. Super. Ct. (Circuit City Stores, Inc.) (2007) 42
6 Cal .4th 443, 458- 59 (explaining how these considerations favor the use of class actions in
7 wage and hour cases);5flv-o/j, 34 Cal.4th at 340) and they will not even be able to obtain full
8 relief if they were to pursue individual penalties claims through the Division of Labor
9 Standards Enforcement. See Lab. Code §§ 98.1(c), 98.2, 200, 218.5, 218.6, 1194, 2698(i);
10 Sampson v. Parking Serv. 2000 Com. Inc. (2004) 117 Cal.App.4th 212, 227. For current
11 employees, a class action also ensures that their rights will be asserted without them having to
12 jeopardize their jobs. See Franco v.Arakelian Enterprises, Inc. ,2012 Cal.App.LEXIS 1207
13 (Franco II), **81-82. It also makes no sense to have multiple tribunals perfomi calculations
14 for individuals that can be performed in the same time for all class members by a single court.
15 Accordingly, a class action is superior to all theoretical alternatives.
16 For the reasons set forth above, the claims are also manageable. As to the off-the-clock
17 phone sub-class, the claims will be determined on the merits by whether the trier of fact
18 accepts that the records indicate off-the-clock work. If the trier of fact accepts that, it follows
19 that the same records can be used to establish class damages.
20 F. Arana's Claims are Typical of the Putative Class.
21 Health Net raises a number of trivial and/or misleading objections to assert that Arana
22 is not typical of the putative class. Health Net asserts that Arana testified that his job was
23 unique citing to page 116, lines 8 to 10 of his declaration. Opp. at 19:24-25: "In fact, Arana
24 testified that the work he did as a non-exempt employee during the class period was 'unique'".
25 The deposition testimony Health Net cites to is a quote of Arana describing a specific project
26 he did during the class period:
27 Q. Was it the same type of work you were doing with the Hub project except it's
28 now different projects?
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 A. No. The Hub is unique.
2 Q. Okay.
3 A. The Hub is unique.
4 Long Decl. Exh. A at 116:5-10.
5 While there was a portion of the class period during which Arana worked on the
6 "unique" Hub project, there was also a period of months during which Arana resumed his
7 duties as a call center representative. Health Net's presentation of the evidence on this is
8 misleading.
9 Nor is it grounds to find lack of tj^iicality that Arana does not recall what time keeping
10 system he used, or may have recorded his time differently than other employees. Typicality
11 requires that that class representative's claims be "significantly similar" to other members, not
12 "identical." See B. W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal. App. 3d 1341, 1347
13 (]9S7); Daniels v. Centennial Group, Inc., 16 Cal. App. 4th 467, 473 (1993). A "typical"
14 claim arises from the same events, practices, or courses of conduct that give rise to the claims
15 of other class members, and is based on the same legal theories. Classen v. Weiler, 145 Cal.
16 App. 3d 27, 46(1983).
17 G. There is No Legal Requirement for a Trial Plan. Where As Here, Statistical Evidence
18 Will be Used at Most to Prove Damages
19 Health Net misapprehends the law in Califomia when it argues that class certification
20 must be denied because Plaintiff did not submit a trial plan. A trial plan is only required as a
21 matter of law when the plaintiff proposes to use statistical evidence to prove liability.
22 This is clear from the Califomia Supreme Court decision on which Defendant bases its
23 assertion that a trial plan is required. Duran v. U.S. National Bank Ass 'n, 59 Cal.4* 1 (2014).
24 Importantly Duran was a misclassification case in which the plaintiffs sought to use statistical
25 evidence to establish liability. As the Supreme Court stated in Duran supra at 33: "The trial
26 court improperly extrapolated liability findings from a small, skewed sample to the entire
27 class."
28 The requirement for a trial plan in Duran is found in a section of the opinion headed:
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PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 "Management of Individual Issues in Misclassification Class Actions." Id. at 30. The Supreme
2 Court explained that: "Employers in misclassification cases typically argue their exemption
3 defense raises issues unique to each individual class member. As a result, misclassification
4 class actions can pose difficult manageability challenges." Id.
5 In that discussion, the Supreme Court in Duran reiterated the often stated mle that:
6 "Defenses that raise individual questions about the calculation of damages generally do not
7 defeat certification." Duran supra at 30. (Emphasis in original). The Supreme Court then said:
8 "However, a defense in which liability itself is predicated on factual questions specific to
9 individual claimants poses a much greater challenge to manageability." (Emphasis in
10 original). The Supreme Court pointedly noted that: "This distinction is important." Id.
11 The Supreme Court also distinguished between: "a defense that hinges liability vel non on
12 consideration of numerously intricately detailed factual questions, as is sometimes the case in
13 misclassification suits [and] a defense that raises only one or a few questions and that operates
14 not to extinguish the defendant's liability but only to diminish the amount of a given
15 plaintiffs recovery." Id.
16 Concluding this discussion, the Supreme Court stated that: " I f statistical evidence will
17 comprise part of the proof on class action claims, the court should consider at the certification
18 stage, whether a trial plan has been developed to address its use. Id. at 31. Based on the
19 context it is clear that this advice pertains to when statistical evidence will be sued to address
20 liability or the preceding extensive discussion about the difference between liability and
21 damages would have been meaningless.
22 H. The "Withdrawn" Declarations Should be Considered.
23 Defendants assert that "of the 15 putative class member declarations submitted by
24 Arana, only three have not been withdrawn." Opp at 1:11-12. This is a classic example of the
25 use of passive voice to conceal the identity of the actor. Plaintiff stipulated to withdraw four
26 of the 15 declarations to resolve ex parte applications which sought to have two declarants
27 held in contempt for not appearing for their depositions . Defense counsel obtained the other
28 purported withdrawals by coercion as set forth below.
Consol. No. 34-2017-00210560-CU-OE-GDS Page 11 Spears v. Health Net of Califomia, Inc.
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 specifically, it appears that Defendant embarked on a concerted strategy of obtaining
2 purported "withdrawals" from declarants by telling the putative class member declarants that
3 they would be deposed unless they withdrew their declarations.
4 For example, declarant Sheena Boehl in a declaration executed January 29, 2019 states
5 that: "On January 17, 2019,1 was contacted by an attorney representing Health Net about
g scheduling a deposition date to investigate the statements I made in my declaration. . . . I was
^ recently a surrogate and just had a baby six weeks ago. I have no time off available since my
8
paid time off was drained for maternity leave. Rather than moving forward as a witness in this
class action lawsuit, I choose to withdraw my November 26, 2018 declaration f iled in support
9
of Plaintiffs' Motion for Class Certification." Boehl "Withdrawal" Declaration TII 4-5. The
10
other "withdrawal" declarants also state that they were contacted by an attorney for Health
11
Net regarding scheduling or appearing for deposition and that they chose instead to withdraw
12
their declaration. Martinez "Withdrawal" Declaration TI 4; Masaya Withdrawal Declaration TITI
13
3-4; Parker "Withdrawal" Declaration TITI 4,6; Pearson "Withdrawal" Declaration TII 4-5,
14
Martinez Gutierrez "Withdrawal" Declaration T! 3. The attomey drafted declarations all use the
15
same formulation that "1 choose to no longer proceed as a witness in this class action."
16
It is apparent that Health Net's counsel contacted these declarants and indicated to
17
them that i f they withdrew their declarations they would not have to be deposed in the case.
18
This raises the specter at least of a violation of Penal Code section 136.1 which makes it a
19
"public offense" when any person: "knowingly and maliciously . . . dissuades any witness . . .
20
from attending or giving testimony at any trial, proceeding, or inquiry authorized by law."
The defense counsel drafted declarations also attempt to create an impression that the
22 previous declarations contain inaccuracies and were not carefully reviewed by the declarants.
23 For example, the "withdrawal" declaration of Mr. Parker implies that certain statements in the
24 declaration he signed in support of the motion are inaccurate, and that he signed the
25 declaration without reviewing it. Parker Withdrawal Decl. Tl 5 (stating that he told plaintiffs
26 counsel that he only missed one meal break and he was paid for it but signed the declaration
27 because: "1 got an email asking me to sign the December 6, 2018 declaration. I signed it
28 quickly using an electronic signature.") In fact, on December 6, 2018 after receiving his
Consol. No. 34-2017-00210560-CU-OE-GDS Page 12 Spears v. Health Net of Califomia, Inc.
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
1 declaration and reviewing it, Mr. Parker emailed back with a correction: "Hi, Shaun, My
2 position was actually as a Desktop Services Technician." Segal Decl. Exh.l.' The December
3 6, 2018 Parker Declaration filed with the motion for class certification reflects this correction
4 as it states that Mr. Parker was a "Desktop Services Technician". The statement that defense
5 counsel drafted for Mr. Parker about signing the declaration "quickly" is misleading because it
g omits that Mr. Parker not only reviewed his declaration but corrected it as to something that
7
was inaccurate.
The bottom line is that the declarations are evidence that may be considered in
8
connection with a motion for class certification. Califomia Rule of Court 3.764(c)(3)
9
expressly authorizes the filing of "declarations" from "appropriate declarants" in support of
10
the motion. Neither Health Net nor the declarants have the right to "withdraw" evidence that
11
Plaintiff has submitted to the Court. See Evidence Code § 351: "Except as otherwise provided
12
by statute, all relevant evidence is admissible."
13
Additionally, even if the declarations were otherwise inadmissible, since Health Net
14
has submitted additional declarationsfromthe declarants, the prior declarations must be
15
considered. Evidence Code § 356 provides in relevant part that: "When a detached . . .
16
declaration . . . is given in evidence, any other . . . declaration . . . which is necessary to make
17
it understood may also be given in evidence." Therefore, Health Net cannot submit new
18
declarations coerced from the witnesses and argue that the prior declarations must be
19
disregarded.
20 III. CONCLUSION
All elements of class certification are met.The motion should be granted.
22 Dated: March 15,2019 SETAREH
: H LAW
L ^ GROUP .
23
By:_
24
Shaun Setareh
25
Thomas Segal
Attomeys for Plaintiff Tomas R. Arana
26
27 'As shown by the email to which Mr. Parker was replying, in transmitting the declaration. Plaintiffs
counsel stated: "Let me know if anything is inaccurate and I will make sure that it is corrected
28 immediately." When Mr. Parker pointed out an inaccuracy, this was done.
Consol. No. 34-2017-00210560-CU-OE-GDS Page 13 Spears v. Health Net of Califomia. Inc
PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
PROOF OF SERVICE
2
I am a chizen of the United States and am employed in the County of Los Angeles, State
3 of Califomia. I am over the age of 18 and not a party to the within action. My business address
is 315 South Beveriy Drive, Suite 315 Beveriy Hills, CA 90212.
4
5
On March 15, 2019,1 served the foregoing documents described as:
6 PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION
7 in this action by transmitting a tme copy thereof enclosed in a sealed envelope addressed as
follows:
8
9 Stephanie Gail Lee Esq. Norma B. Blumenthal, Esq.
Orrick, Herrington & Sutcliffe LLP Victoria B. Rivapalacio
10 777 Figueroa St Suite 3200 Blumenthal, Nordrehaug, & Bhowmik
Los Angeles, CA 90017 2255 Calle Clara
II
Email: stephanie.lee(gor05rick.com La Jolla, CA 92037
12 Email: tjlong(^orrick.com Email: victoria(gbanilawca.com
COUNSEL FOR DEFENDANT HEALTH Email: nonn(^bamlaca.com
13 NET, INC. COUNSEL FOR PLAINTIFF ANDREA
SPEARS.
14
Timothy J. Long Esq.
15 Nicholas J. Horton, Esq.
Orrick, Herrington & Sutcliffe LLP
16 400 Capital Mall, Suite 3000
Sacramento, CA 95814
17
Email: tjlong(gorrick.com
18 COUNSEL FOR DEFENDANT HEALTH
NET, INC.
19
[X] BY MAIL
20
21 I am readily familiar with the practice of Setareh Law Group for the collection and
processing of correspondence for mailing with the United States Postal Service. It is the
22 practice that correspondence is deposited with United States Postal Service the same day it is
submitted for mailing with postage thereon fiilly prepaid at Beverly Hills, Califomia. I am
23 aware that on motion of the party served, service is presumed invalid if postal cancellation date
24 or postage meter date is more than one day after date of deposit for mailing in affidavit.
25 [X] STATE
26 I declare under penalty of perjury under the laws of the State of Califomia that the above
27
is tme and correct.
28
PROOF OF SERVICE
I Executed on March 15, 2019, at Beverly Hills, Califomia.
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. PROOF OF SERVICE
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FILED/ENDORSED 1 Shaun Setareh (SBN 204514) shaun@setarehlaw.com 2 Thomas Segal (SBN 222791) MAR 1 5 2019 thomas(^set arehlaw.com 3 SETAREH LAW GROUP By: K. Fav 315 South Beverly Drive, Suite 315 4 Beverly Hills, Califomia 90212 Telephone: (310)888-7771 5 Facsimile: (310)888-0109 6 Attomeys for Plaintiff TOMAS R. ARANA 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SACRAMENTO 10 UNLIMITED JURISDICTION 11 12 ANDREA SPEARS, an individual, on behalf of Consol. No. 34-2017-00210560-CU-OE-GDS herself and on behalf of all persons similarly 13 situated. Assigned For All Purposes to the Honorable Alan G. Perkins, Department 35 14 Plaintiff, CLASS ACTION 15 vs. 16 HEALTH NET OF CALIFORNIA, INC., a PLAINTIFF'S REPLY IN SUPPORT OF Califomia corporation; and DOES 1 through 50, MOTION FOR CLASS CERTIFICATION 17 inclusive, 18 Defendants. Date: April 11,2019 at 10:00 a.m. Time: 10:00 a.m. 19 Courtroom: Department 35 TOMAS R. ARANA, on behalf of himself, all 20 others similarly situated. 21 Plaintiff, 22 vs. 23 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 through 50, 24 inclusive, 25 Defendants. 26 27 28 Consol. No. 34-2017-00210560-CU-OE-GDS Page 1 Spears v. Health Net of Califomia, Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 TABLE OF CONTENTS 2 I. INTRODUCTION 1 3 II. ARGUMENT 2 4 A. The class is ascertainable 2 5 B. The Claims of the Off-the-Clcok Telephone Time Sub-Class are Readily 6 Amenable to Class Adjudication 3 7 C. The Claims of the Computer Boot-Up Subclass Are Readily Amenable to Class 8 Adjudication 5 9 D. The Meal and Rest Breaks Claims are Readily Amenable to Class Certification of... 5 10 E. A Class Action Is Both Superior and Managemable 8 11 F. Arana's Claims are Typical of the Putative Class 9 12 G. There is No Legal Requirement for a Trial Plan, Where As Here, Statistical 13 Evidence Will be Used at Most to Prove Damages 10 14 H. The "Withdrawn" Declarations Should be Considered 11 15 III. CONCLUSION 13 16 17 18 19 20 21 22 23 24 25 26 27 28 Consol. No. 34-2017-00210560-CU-OE-GDS Pagei Spears v. Health Net of Califomia, Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 TABLE OF AUTHORITIES 2 CASES. 3 ABM Industries 0\>ertime Cases, 19 Cal.App.4* 277,302 (2018) 2 4 Accord Faulkinbury v. Boyd & Associates, Inc., 216 Cal.App.4* 220,235 (2013.) 8 5 Alberts v. Aurora Behavioural Healthcare, Inc., (2 Dist. 2015) 241 Cal.App.4''' 388, 398 8 6 B.W.L Custom Kitchen v. Owens-Illinois. Inc. (1987) 191 Cal.App.3d 1341,1354 7,10 7 Bradley v. Networkers International, LLC, (2013) 221 Cal.App.4* 1129,1155 5 8 Classen v. Weiler, 145 Cal. App. 3d 27,46 (1983) 10 9 Classen v. Weiler, 10 145 Cal.App.3d 27(1983) 10 11 Daniels v. Centennial Group, Inc., 16 Cal. App. 4th 467,473 (1993) 10 12 Duranv. U.S National Bank Ass'n, 59Cal.4'^ 1 (2014) 10 13 Employment Development Dept. v. Superior Court (1981) 30 Cal.3d 256, 266.......; 7 14 Franco v.Arakelian Enterprises, Inc., 2012 Cal.App.LEXIS 1207 (Franco II), **81-82 9 15 Gentry v. Super. Ct. (Circuit City Stores, Inc.) (2007) 42 Cal .4th 443, 458- 59 9 16 Hernandez v. Mendoza. 199 Cal.App.3d 721 (1981) 7 17 In re Zeth S. 31 Cal.4* 396,414 n 11 (2003) 4 18 Jones V. Farmers Ins. Exch., (2 Dist. 2013) 221 Cal.App.4* 986, 996-997 5 19 Kamakahi v. American Society for Reproductive Medicine, 305 F.R.D. 164,193 (N.D. Cal. 2015).; 8 20 Lubin V. Wackenhut Corporation,20\6WL 6835499 * 9 (November 21,2016) 8 21 Martinez v. Joe's Crab Shack Holdings (2014) 231 Cal.App.4th 362,384 8 22 Reyes v. Board ofSuperxdsors ofSan Diego, supra, at p. 1278 .". 7 23 Sampson v. Parking Serv. 2000 Com, Inc. (2004) 117 Cal.App.4th 212,227 9 24 Tyson Foods. Inc. v. Bouaphakeo, 1136 S Ct. 1036 (2016) 7 25 STATUTES 26 Califomia Rule of Court 3.764(c)(3) 13 27 See Lab. Code §§ 98.1(c), 98.2,200,218.5,218.6,1194,2698(i) 9 28 Consol. No. 34-2017-00210560-CU-OE-GDS Page ii Spears v. Health Net qf Califomia, Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 ' 2 MEMORANDUM OF POINTS AND AUTHORITIES 3 I. INTRODUCTION 4 Health Net does not dispute that the class and subclasses are numerous or that Plaintiff 5 Arana and his counsel are adequate. Instead, Health Net attempts to argue that the proposed 6 classes are not ascertainable or that common issues do not predominate, and that Plaintiff is 7 not typical. In so arguing, Health Net misapprehends both the facts and the law. 8 For example, Health Net misstates basic facts about Plaintiffs employment. One of the claims 9 in the case is that as evidenced by comparing phone records and time records, class members 10 spent time off-the-clock answering customer phone calls. Health Net asserts Plaintiff does not 11 have this claim because he did not answer phone calls during the class period. In fact, while 12 there was a large portion of the class period where Plaintiff was assigned to a project where he 13 did not answer phone calls, he retumed to his customer service position where he answered 14 phone calls. 15 The claims in this case are readily amenable to class certification. Plaintiff through his 16 expert has shown that putative class members spent substantial time logged in to Defendant's 17 phone system when they were clocked out of the timekeeping system, either at the beginning 18 or (in most) cases at the end of their shift. Health Net offers no explanation for this, except 19 unsupported speculation from its counsel that some class members may have forgotten to log 20 out of the phone system. The issue will be for a trier of fact to determine what inference to be 21 drawn from the fact that customer service workers were clocked out of the time keeping 22 system, but were still logged in to the phone system. If the trier of fact finds this proves off- 23 the-clock work, the class will win. If not. Health Net will win. 24 Similarly, the evidence shows undisputably that there is an issue where class members 25 who have to use a computer to clock in have to wait unpaid for it to boot up. Health Net's only 26 answer is that some class members were paid for this. That is a classic example of a damages 27 issue that does not defeat class certification. It is also an admission by Health Net that the 28 problem exists and that the time is compensable. Consol. No. 34-2017-00210560-CU-OE-GDS Page I Spears v. Health Net of Califomia. Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 As to the meal and rest break claims. Plaintiffs theory of recovery is that Health Net's 2 policies are defective because they do not inform class members of what their recourse is if 3 they are not provided a meal or rest break. This theory is readily amenable to class 4 certification and those claims should be certified as well. 5 In order to defeat certification, Health Net also approached various of Plaintiff s 6 declarants and made deals with them where they would not be deposed if they "withdrew" 7 their declarations. This effort is particularly unavailing in light of the undisputed facts 8 regarding the phone call and computer boot-up time claims. The "withdrawal" declarations 9 that Health Net's counsel drafted for these declarants are themselves misleading. For example, 10 one declarant states that he received an email from Plaintiffs counsel and signed his 11 declaration "quickly" electronically, implying that he did not review it. Health Net specifically 12 cites to this as evidence that the declarations are inaccurate. But in fact, the evidence shows 13 that this class member reviewed the declaration, and emailed Plaintiffs counsel to request a 14 change to the declaration, which was made, before signing it. 15 Health Net's legal misstatements, factual misapprehensions, and chicanery with 16 declarants are no basis for denying certification. The motion should be granted. 17 H. ARGUMENT 18 A. The class is ascertainable. 19 Health Net's opposition misapprehends the law pertaining to ascertainability. As the 20 California Court of Appeal has explained: 21 "Ascertainability is achieved by defining the class in terms of objective characteristics 22 and common transaction facts making the ultimate identification of class members 23 possible when that identification becomes necessary." ABM Industries Overtime Cases, 24 19 Cal.App.4"' 277, 302 (2018). 25 Further: "a class is ascertainable if a plaintiff supplies a reasonable means of 26 identifying potential class members and the class is defined in terms of objective 27 characteristics and common transactional facts sufficient tp allow a class member to identify 28 him or herself as having a right to recover based on that definition. So long as these Consol. No. 34-2017-00210560-CU-OE-GDS Page 2 Spears v. Health Net of Califomia. Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 requirements are met a class is ascertainable even i f the definition pleads ultimate facts or 2 conclusions of law." Id. at 303. 3 The classes proposed for certification meet that standard. For example, the Off-the- 4 Clock Telephone Time Sub-Class is defined as: 5 "All Class members who, based on Defendants payroll, timeclock, telephone, and other 6 electronic records were utilizing telephones or other electronic systems before clocking 7 in at the start of their shifts or after clocking out at the end of their shift during the 8 Relevant Time Period." 9 This definition involves objective transactional facts, and class members can be 10 identified by comparing time records to records of when class members were logged in to 11 Defendants' phone system. 12 Similarly, the Computer Boot-Up Sub-Class is defined as: "All Class members who 13 logged onto or turned on a computer to access any timeclock or timekeeping system to record 14 their hours worked." This definition also involves objective transactional facts and 15 membership can be determined from the electronic time records. 16 The Meal Period and Rest Period Sub-Classes are defined objectively in tenns of shift 17 length. And class members can self identify as to whether they received their meal and rest 18 breaks. 19 Importantly, ascertainability is not defeated simply because the class may include 20 individuals who are not entitled to recover: "A class action is not inappropriate simply 21 because each member of a class may at some point be required to make an individual showing 22 as to his or her eligibility for recover. . . [a]class of all employees in certain job categories is 23 ascertainable even though some employees may not have worked overtime and thus may not 24 be entitled to any recovery. Nor should a court decline to certify a class simply because it is 25 afraid that insurmountable problems may later appear at the remedy stage, (citation) Thus . . . 26 possible over-inclusiveness in the method proposed for identifying potential class members 27 does not defeat ascertainability."/f/. at 304. 28 B. The Claims of the Off-the-Clock Telephone Time Sub-Class are Readily Amenable to Consol. No. 34-2017-00210560-CU-OE-GDS Page 3 Spears v. Health Net of Califomia, Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 Class Adjudication. 2 As Plaintiff and other declarants confirm, Health Net employees often worked off-the- 3 clock fielding phone calls that occurred after they clocked out for the day or during their meal 4 break. Masaya Decl. 1 10; Arana Decl. Tf 8. Plaintiffs expert conducted an analysis in which 5 he. compared time punch records to log in and log out records from Health Net's phone system 6 for putative class members. This analysis showed that 4.8% of records show a login to the 7 phone system prior to the start of the work day and that 40.7% of shifts show a logoff 8 subsequent to the punch out. Toney Decl. f 12. 9 Plaintiff will ask a trier of fact to infer based on this that off-the-clock work is 10 occurring where, for example, a call center employee is logged into the phone system beyond 11 the end of a call center employee's scheduled shift. Health Net does not dispute that the 12 discrepancy exists or offer any evidence that off-the-clock work is not the reason for the 13 discrepancy. Health Net speculates that the numbers are skewed by employees who failed to 14 log out at the end of the day. But Health Net provides no evidence that this occurred, citing 15 only to its attorney's questions on this point at the deposition of Plaintiff s expert. Speculation 16 by Health Net's attomey, of course, is not evidence. E.g., In re Zeth S., 31 Cal.4'*' 396, 414 n 17 11 (2003): "It is axiomatic that the unsworn statements of counsel are not evidence." 18 Not only does Health Net provide no evidence of this, it is not even stated as a reason 19 for denying certification in Health Net's discovery responses. Segal Decl. Exh. 2, 20 Interrogatory Response No. 6. And, Health Net's speculation on this point, at best, raises a 21 class-wide defense. 22 In fact. Health Net's opposition confirms that the employees logged in to the phone 23 system are not making personal calls. As Health Net declarant Will Montes states: "Customer 24 Service Representatives have a phone at their workstations for the sole purpose of answering 25 customer calls." Montes Decl. TI 3. Since the putative class members are not making personal 26 phone calls, they must be working when logged into the phone system. 27 Plaintiff, then, has offered class-wide evidence from which a trier of fact can infer that 28 off-the-clock work is occurring. If the trier of facts finds based on that evidence that off-the- Consol. No. 34-2017-00210560-CU-OE-GDS Page 4 Spears v. Health Net of Califomia, Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 clock work was occurring, the class will win. If not, then Health Net will win. 2 Perhaps because it has no substantive answer to why this claim cannot be certified, 3 Health Net resorts to misrepresentations. Health Net asserts that class representative Arana did 4 not field phone calls during the class period. Opp. at 19 fn 14: "Arana testified that when he 5 started working full time on his 'unique' project in October 2010, he completely stopped 6 taking customer calls . . . Thus, Arana never answered customer calls as an exempt employee 7 during the class period." However, the facts are as follows. Arana was employed as a 8 Customer Service Representative from Febmary 25, 2008 until November 15, 2015. On 9 November 16, 2015 he was promoted to an exempt position as a Contact Center Analyst. His 10 deposition testimony which Health Net cites to is that from late 2010 until January 2015 he 11 was working on a project which did not involve answering phone calls. From January 2015 12 until November 2015 he did answer customer phone calls. Arana Reply Decl. TITI 3-4. 13 Health Net also asserts misleadingly that: "Arana's own expert admits, records 14 demonstrating that employees were logged into the phone system despite being clocked out 15 does not establish that employees were working off the clock." Opp. at 15:21-23. In fact, 16 expert James Toney admitted no such thing. Instead Mr. Toney stated that he had not been 17 asked to explain the reason why there was a difference between punch times and log in times 18 for the phone system: Q. The reason why those instances are occurring is not within your 19 opinion? A. Correct. Q. And you weren't asked to do that? A. Yes." Long Decl. Exh F. at 20 70:20-24. 21 No doubt there are variations in how much time each individual class member spent off 22 the clock. But that can be determined by reference to the phone system log in records. And, of 23 course, it is well settled that variations in damages do not preclude certification. E.g., Jones v. 24 Farmers Ins. Exch.. (2 Dist. 2013) 221 Cal.App.4"' 986, 996-997 (variations in extent to which 25 workers performed off the clock work was damages issue which did not defeat certification; 26 Bradley v. Networkers International, LLC, (2013) 221 Cal.App.4**' 1129, 1155 (same).) 27 28 Consol. No. 34-2017-00210560-CU-OE-GDS Page 5 Spears v. Health Net of Califomia, Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 C. The Claims of the Computer Boot-Up Subclass Are Readily Amenable to Class 2 Adjudication. 3 The claims of the Computer Boot-Up Subclass turn on an overarching common 4 question: is the time that class members spend waiting for their computer to boot up so that 5 they can clock in compensable? 6 Health Net does not deny that this occurred during the class period. Instead, Health 7 Net's argument is that this did not occur to everybody. Opposition at 17:9-15. Health Net also 8 asserts that any such instances would be a violation of company policy. The policy to which 9 Health Net cites states that: "Accurately recording time worked is the responsibility of every 10 associate." Rodes Decl. Exh. A, FNCA001972. This of course is a generic policy that says 11 absolutely nothing about what employees are to do if it takes a few minutes for their computer 12 to boot up so that they can log on. Employees very well might not regard that waiting time as 13 "time worked" even though it is under California law. 14 Indeed most of Health Net's declarants do not actually state that they enter their time 15 so that they are compensated for the time waiting for the compute to boot up. For example, 16 declarant Zeena Aldrete states that: "When I reboot on Monday, it takes a little longer to 17 reboot into the system, but takes at most 2 minutes to do so. Aldrete Declaration TI 2. She does 18 not state that she enters her time so that she is paid for the time waiting for the computer to 19 reboot, or that she was trained to do this. 20 Some of Health Net's declarants do state that they changed their time sheet to reflect 21 the time waiting for the computer to boot up. Hidalgo Decl. TI 13 (stating that he sometimes 22 has to wait 5 to 10 minutes but that he will "manually go into the time sheet to reflect when I 23 began working, accounting for the computer lag time.") This confirms the existence of the 24 problem, and based on the majority of the declarations, most Health Net employees had no 25 idea that they should do this. 26 There is no doubt that this problem exists and that there were class members who were 27 not compensated for this time. The claims of all class members will tum on the question of 28 whether this time was compensable. In fact, Health Net's arguments that some class members ConsoL No. 34-2017-00210560-CU-OE-GDS Page 6 Spears v. Health Net ofCdlifomia, Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 were compensated for this time is an admission that the time is compensable. As set forth 2 above, differences in the amount of damages do not defeat certification. And, the Class can 3 present expert testimony, as Healthnet likely will as well, to establish the approximate amount 4 of uncompensated time Class members spent waiting for computers to boot up. The U.S. 5 Supreme Court has held that this is entirely appropriate in wage and hour cases. Tyson Foods, 6 Inc. V. Bouaphakeo, 1136 S Ct. 1036 (2016). 7 "[A] class action is not inappropriate simply because each member of the class may at 8 some point be required to make an individual showing as to his or her eligibility for recovery 9 or as to the amount of his or her damages." Employment Development Dept. v. Superior Court 10 (1981) 30 Cal.3d 256, 266. "[T]he necessity for class members to individually establish 11 eligibility and damages does not mean individual questions predominate." Reyes v. Board of 12 Supervisors of San Diego, supra, at p. 1278; B. W.I. Custom Kitchen v. Owens-Illinois, Inc. 13 (1987) 191 Cal.App.3d 1341, 1354 [presence of individual damages cannot bar certification]. 14 "Class actions serve an important role by establishing a judicial process within which the 15 claims of many individuals can be resolved simultaneously, eliminating repetitive litigation 16 and providing claimants with a practical method of securing redress for claims which because 17 of their size do not warrant individual litigation." Reyes, supra, at p. 1270. "As a general rule 18 , if the defendant's liability can be determined by facts common to all members of the class, a 19 class will be certified even if the members must individually prove their damages." Brinker 20 supra at] 022. 21 Further, class certification should not be denied based on Health Net's failure to keep 22 records of this off-the-clock work. Hernandez v. Mendoza, 199 Cal.App.3d 721, 727-728 23 (1981): "Where the employer has failed to keep records required by statute, the consequences 24 for such failure should fall on the employer, not the employee." 25 D. The Meal and Rest Break Claims are Readily Amenable to Class Certification. 26 Plaintiff asserts that Defendant is liable for meal and rest break violations both because 27 class members missed meal and rest breaks due to pressure of work, and because Defendant's 28 policies do not advise class members of their recourse for missed meal and rest breaks. Consol. No. 34-2017-00210560-CU-OE-GDS Page 7 Spears v. Health Net qf Califomia. Ina PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 Defendant disputes that it was required to inform employees of the recourse that they had for 2 missed meal and rest breaks. In so asserting, Defendant is improperly arguing the merits ofthe 3 claim. Of course the merits are not at issue. "A motion to certify a class is not a trial on the 4 merits [it is] not a license for a free-floating inquiry into the validity of the complaint's 5 allegations, rather, resolution of disputes over the merits of a case must generally be 6 postponed until after class certification has been denied." (Alberts v. Aurora Behavioural 7 Healthcare, Inc., (2 Dist. 2015) 241 Cal.App.4"' 388, 398.) Instead, "the trial court must 8 consider whether the theory of recovery advanced by the plaintiff is likely to prove amenable 9 to class certification." 10 Of course, i f Health Net is correct on the law, it should welcome class certification. 11 E.g., Kamakahi v. American Society for Reproductive Medicine, 305 F.R.D. 164, 193 (N.D. 12 Cal. 2015): "Where a defendant has a classwide defense, class adjudication is a course it 13 should welcome as all class members who did not opt out of the class would be bound by the 14 judgment." 15 Under Califomia law, whether any individual employee received a meal break is a 16 damages issue. Lubin v. Wackenhut Corporation,20]6 WL 6835499 * 9 (November 21, 2016): 17 "Whether or not the employee was able to take the required break goes to damages." Accord 18 Faulkinbury v. Boyd & Associates, Inc.. 216 Cal.App.4"' 220, 235 (2013.) As set forth above, 19 differences in damages do not preclude certification. 20 E. A Class Action Is Both Superior and Manageable. 21 It can hardly be disputed that a class action is the superior method of handling these 22 claims. In fact. Health Net while opposing class certification fails to offer any reasonable 23 altemative that class members could use to pursue their claims. 24 In view of the theoi-etical alternatives that proposed class members could potentially 25 utilize a class action is plainly superior to all of them . . Martinez v. Joe's Crab Shack 26 Holdings (2014) 231 Cal.App.4th 362,384, as modified on denial ofreh'g (Dec. 3, 2014), 27 review denied(Feb. 11, 2015) (stating that "we understand from Brinker, Duran and Ayata that 28 classwide relief remains the preferred method of resolving wage and hour claiins, even those Consol. No. 34-2017-00210560-CU-OE-GDS Page 8 Spears v. Health Net of Califomia, Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 in which the facts appear to present difficult issues of proof."). Under a representative PAGA 2 action, Plaintiff has to provide much, if not all, of the same proof as a class action without 3 providing the same relief. Further, the putative class members in this case all have relatively 4 small amounts of money at stake and the claims at issue are time-consuming and costly to 5 pursue and filled with nuances (See Gentry v. Super. Ct. (Circuit City Stores, Inc.) (2007) 42 6 Cal .4th 443, 458- 59 (explaining how these considerations favor the use of class actions in 7 wage and hour cases);5flv-o/j, 34 Cal.4th at 340) and they will not even be able to obtain full 8 relief if they were to pursue individual penalties claims through the Division of Labor 9 Standards Enforcement. See Lab. Code §§ 98.1(c), 98.2, 200, 218.5, 218.6, 1194, 2698(i); 10 Sampson v. Parking Serv. 2000 Com. Inc. (2004) 117 Cal.App.4th 212, 227. For current 11 employees, a class action also ensures that their rights will be asserted without them having to 12 jeopardize their jobs. See Franco v.Arakelian Enterprises, Inc. ,2012 Cal.App.LEXIS 1207 13 (Franco II), **81-82. It also makes no sense to have multiple tribunals perfomi calculations 14 for individuals that can be performed in the same time for all class members by a single court. 15 Accordingly, a class action is superior to all theoretical alternatives. 16 For the reasons set forth above, the claims are also manageable. As to the off-the-clock 17 phone sub-class, the claims will be determined on the merits by whether the trier of fact 18 accepts that the records indicate off-the-clock work. If the trier of fact accepts that, it follows 19 that the same records can be used to establish class damages. 20 F. Arana's Claims are Typical of the Putative Class. 21 Health Net raises a number of trivial and/or misleading objections to assert that Arana 22 is not typical of the putative class. Health Net asserts that Arana testified that his job was 23 unique citing to page 116, lines 8 to 10 of his declaration. Opp. at 19:24-25: "In fact, Arana 24 testified that the work he did as a non-exempt employee during the class period was 'unique'". 25 The deposition testimony Health Net cites to is a quote of Arana describing a specific project 26 he did during the class period: 27 Q. Was it the same type of work you were doing with the Hub project except it's 28 now different projects? Consol. No. 34-2017-00210560-CU-OE-GDS Page 9 Spears v. Health Net of Califomia. Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 A. No. The Hub is unique. 2 Q. Okay. 3 A. The Hub is unique. 4 Long Decl. Exh. A at 116:5-10. 5 While there was a portion of the class period during which Arana worked on the 6 "unique" Hub project, there was also a period of months during which Arana resumed his 7 duties as a call center representative. Health Net's presentation of the evidence on this is 8 misleading. 9 Nor is it grounds to find lack of tj^iicality that Arana does not recall what time keeping 10 system he used, or may have recorded his time differently than other employees. Typicality 11 requires that that class representative's claims be "significantly similar" to other members, not 12 "identical." See B. W.I. Custom Kitchen v. Owens-Illinois, Inc., 191 Cal. App. 3d 1341, 1347 13 (]9S7); Daniels v. Centennial Group, Inc., 16 Cal. App. 4th 467, 473 (1993). A "typical" 14 claim arises from the same events, practices, or courses of conduct that give rise to the claims 15 of other class members, and is based on the same legal theories. Classen v. Weiler, 145 Cal. 16 App. 3d 27, 46(1983). 17 G. There is No Legal Requirement for a Trial Plan. Where As Here, Statistical Evidence 18 Will be Used at Most to Prove Damages 19 Health Net misapprehends the law in Califomia when it argues that class certification 20 must be denied because Plaintiff did not submit a trial plan. A trial plan is only required as a 21 matter of law when the plaintiff proposes to use statistical evidence to prove liability. 22 This is clear from the Califomia Supreme Court decision on which Defendant bases its 23 assertion that a trial plan is required. Duran v. U.S. National Bank Ass 'n, 59 Cal.4* 1 (2014). 24 Importantly Duran was a misclassification case in which the plaintiffs sought to use statistical 25 evidence to establish liability. As the Supreme Court stated in Duran supra at 33: "The trial 26 court improperly extrapolated liability findings from a small, skewed sample to the entire 27 class." 28 The requirement for a trial plan in Duran is found in a section of the opinion headed: Consol. No. 34-2017-00210560-CU-OE-GDS Page 10 Spears v. Health Net of Califomia, Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 "Management of Individual Issues in Misclassification Class Actions." Id. at 30. The Supreme 2 Court explained that: "Employers in misclassification cases typically argue their exemption 3 defense raises issues unique to each individual class member. As a result, misclassification 4 class actions can pose difficult manageability challenges." Id. 5 In that discussion, the Supreme Court in Duran reiterated the often stated mle that: 6 "Defenses that raise individual questions about the calculation of damages generally do not 7 defeat certification." Duran supra at 30. (Emphasis in original). The Supreme Court then said: 8 "However, a defense in which liability itself is predicated on factual questions specific to 9 individual claimants poses a much greater challenge to manageability." (Emphasis in 10 original). The Supreme Court pointedly noted that: "This distinction is important." Id. 11 The Supreme Court also distinguished between: "a defense that hinges liability vel non on 12 consideration of numerously intricately detailed factual questions, as is sometimes the case in 13 misclassification suits [and] a defense that raises only one or a few questions and that operates 14 not to extinguish the defendant's liability but only to diminish the amount of a given 15 plaintiffs recovery." Id. 16 Concluding this discussion, the Supreme Court stated that: " I f statistical evidence will 17 comprise part of the proof on class action claims, the court should consider at the certification 18 stage, whether a trial plan has been developed to address its use. Id. at 31. Based on the 19 context it is clear that this advice pertains to when statistical evidence will be sued to address 20 liability or the preceding extensive discussion about the difference between liability and 21 damages would have been meaningless. 22 H. The "Withdrawn" Declarations Should be Considered. 23 Defendants assert that "of the 15 putative class member declarations submitted by 24 Arana, only three have not been withdrawn." Opp at 1:11-12. This is a classic example of the 25 use of passive voice to conceal the identity of the actor. Plaintiff stipulated to withdraw four 26 of the 15 declarations to resolve ex parte applications which sought to have two declarants 27 held in contempt for not appearing for their depositions . Defense counsel obtained the other 28 purported withdrawals by coercion as set forth below. Consol. No. 34-2017-00210560-CU-OE-GDS Page 11 Spears v. Health Net of Califomia, Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 specifically, it appears that Defendant embarked on a concerted strategy of obtaining 2 purported "withdrawals" from declarants by telling the putative class member declarants that 3 they would be deposed unless they withdrew their declarations. 4 For example, declarant Sheena Boehl in a declaration executed January 29, 2019 states 5 that: "On January 17, 2019,1 was contacted by an attorney representing Health Net about g scheduling a deposition date to investigate the statements I made in my declaration. . . . I was ^ recently a surrogate and just had a baby six weeks ago. I have no time off available since my 8 paid time off was drained for maternity leave. Rather than moving forward as a witness in this class action lawsuit, I choose to withdraw my November 26, 2018 declaration f iled in support 9 of Plaintiffs' Motion for Class Certification." Boehl "Withdrawal" Declaration TII 4-5. The 10 other "withdrawal" declarants also state that they were contacted by an attorney for Health 11 Net regarding scheduling or appearing for deposition and that they chose instead to withdraw 12 their declaration. Martinez "Withdrawal" Declaration TI 4; Masaya Withdrawal Declaration TITI 13 3-4; Parker "Withdrawal" Declaration TITI 4,6; Pearson "Withdrawal" Declaration TII 4-5, 14 Martinez Gutierrez "Withdrawal" Declaration T! 3. The attomey drafted declarations all use the 15 same formulation that "1 choose to no longer proceed as a witness in this class action." 16 It is apparent that Health Net's counsel contacted these declarants and indicated to 17 them that i f they withdrew their declarations they would not have to be deposed in the case. 18 This raises the specter at least of a violation of Penal Code section 136.1 which makes it a 19 "public offense" when any person: "knowingly and maliciously . . . dissuades any witness . . . 20 from attending or giving testimony at any trial, proceeding, or inquiry authorized by law." The defense counsel drafted declarations also attempt to create an impression that the 22 previous declarations contain inaccuracies and were not carefully reviewed by the declarants. 23 For example, the "withdrawal" declaration of Mr. Parker implies that certain statements in the 24 declaration he signed in support of the motion are inaccurate, and that he signed the 25 declaration without reviewing it. Parker Withdrawal Decl. Tl 5 (stating that he told plaintiffs 26 counsel that he only missed one meal break and he was paid for it but signed the declaration 27 because: "1 got an email asking me to sign the December 6, 2018 declaration. I signed it 28 quickly using an electronic signature.") In fact, on December 6, 2018 after receiving his Consol. No. 34-2017-00210560-CU-OE-GDS Page 12 Spears v. Health Net of Califomia, Inc. PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 1 declaration and reviewing it, Mr. Parker emailed back with a correction: "Hi, Shaun, My 2 position was actually as a Desktop Services Technician." Segal Decl. Exh.l.' The December 3 6, 2018 Parker Declaration filed with the motion for class certification reflects this correction 4 as it states that Mr. Parker was a "Desktop Services Technician". The statement that defense 5 counsel drafted for Mr. Parker about signing the declaration "quickly" is misleading because it g omits that Mr. Parker not only reviewed his declaration but corrected it as to something that 7 was inaccurate. The bottom line is that the declarations are evidence that may be considered in 8 connection with a motion for class certification. Califomia Rule of Court 3.764(c)(3) 9 expressly authorizes the filing of "declarations" from "appropriate declarants" in support of 10 the motion. Neither Health Net nor the declarants have the right to "withdraw" evidence that 11 Plaintiff has submitted to the Court. See Evidence Code § 351: "Except as otherwise provided 12 by statute, all relevant evidence is admissible." 13 Additionally, even if the declarations were otherwise inadmissible, since Health Net 14 has submitted additional declarationsfromthe declarants, the prior declarations must be 15 considered. Evidence Code § 356 provides in relevant part that: "When a detached . . . 16 declaration . . . is given in evidence, any other . . . declaration . . . which is necessary to make 17 it understood may also be given in evidence." Therefore, Health Net cannot submit new 18 declarations coerced from the witnesses and argue that the prior declarations must be 19 disregarded. 20 III. CONCLUSION All elements of class certification are met.The motion should be granted. 22 Dated: March 15,2019 SETAREH : H LAW L ^ GROUP . 23 By:_ 24 Shaun Setareh 25 Thomas Segal Attomeys for Plaintiff Tomas R. Arana 26 27 'As shown by the email to which Mr. Parker was replying, in transmitting the declaration. Plaintiffs counsel stated: "Let me know if anything is inaccurate and I will make sure that it is corrected 28 immediately." When Mr. Parker pointed out an inaccuracy, this was done. Consol. No. 34-2017-00210560-CU-OE-GDS Page 13 Spears v. Health Net of Califomia. Inc PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION PROOF OF SERVICE 2 I am a chizen of the United States and am employed in the County of Los Angeles, State 3 of Califomia. I am over the age of 18 and not a party to the within action. My business address is 315 South Beveriy Drive, Suite 315 Beveriy Hills, CA 90212. 4 5 On March 15, 2019,1 served the foregoing documents described as: 6 PLAINTIFF'S REPLY IN SUPPORT OF MOTION FOR CLASS CERTIFICATION 7 in this action by transmitting a tme copy thereof enclosed in a sealed envelope addressed as follows: 8 9 Stephanie Gail Lee Esq. Norma B. Blumenthal, Esq. Orrick, Herrington & Sutcliffe LLP Victoria B. Rivapalacio 10 777 Figueroa St Suite 3200 Blumenthal, Nordrehaug, & Bhowmik Los Angeles, CA 90017 2255 Calle Clara II Email: stephanie.lee(gor05rick.com La Jolla, CA 92037 12 Email: tjlong(^orrick.com Email: victoria(gbanilawca.com COUNSEL FOR DEFENDANT HEALTH Email: nonn(^bamlaca.com 13 NET, INC. COUNSEL FOR PLAINTIFF ANDREA SPEARS. 14 Timothy J. Long Esq. 15 Nicholas J. Horton, Esq. Orrick, Herrington & Sutcliffe LLP 16 400 Capital Mall, Suite 3000 Sacramento, CA 95814 17 Email: tjlong(gorrick.com 18 COUNSEL FOR DEFENDANT HEALTH NET, INC. 19 [X] BY MAIL 20 21 I am readily familiar with the practice of Setareh Law Group for the collection and processing of correspondence for mailing with the United States Postal Service. It is the 22 practice that correspondence is deposited with United States Postal Service the same day it is submitted for mailing with postage thereon fiilly prepaid at Beverly Hills, Califomia. I am 23 aware that on motion of the party served, service is presumed invalid if postal cancellation date 24 or postage meter date is more than one day after date of deposit for mailing in affidavit. 25 [X] STATE 26 I declare under penalty of perjury under the laws of the State of Califomia that the above 27 is tme and correct. 28 PROOF OF SERVICE I Executed on March 15, 2019, at Beverly Hills, Califomia. 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . PROOF OF SERVICE