Preview
1 Timothy J. Long (SBN 137591)
H^poesED
longt@gtlaw.com
2 Samuel S. Hyde (SBN 327065) OCT 0 6 2020
hydes@gtlaw.com
3 GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100
4 Sacramento, Califomia 95814
Telephone: 916.442.1 111
5 Facsimile: 916.448.1709
6 Rowena Santos (SBN 210185)
santosro@gtlaw.com
7 GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
8 Irvine, Califomia 92612
Telephone: 949.732.6500
9 Facsimile: 949.732.6501
10 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SACRAMENTO
14
15 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560-CU-OE-GDS
herself and on behalf of all persons similarly (Consolidated with Case No. 34-2017-00216685-CU-
16 situated. OE-GDS)
17 Plaintiff, REPLY IN SUPPORT OF HEALTH NET OF
CALIFORNIA, INC.'S MOTION TO STRIKE
18 HEALTH NET OF CALIFORNIA, EMC, a ANDREA SPEARS' REPRESENTATIVE PAGA
Califomia corporation; and DOES 1 through 50, CLAIMS
19 inclusive.
Date: October 16,2020
20 Defendants. Time: 11:00 a.m.
Dept.: 41
21 Judge: Hon. David De Alba
22 Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all
others similarly situated, FAC Filed: June 29, 2017
23 Consolidated Complaint Filed: Dec. 21, 2017
24 Plainfiff,
25
HEALTH NET OF CALIFORNIA, INC, a
26 Califomia corporation; and DOES 1 through 50.
27 inclusive.
Defendants.
28
REPLY IN SUPPORT OF HEALTH NET OF CALIFORMA, ENC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 I. INTRODUCTION
2 Spears' opposifion underscores why this Court should strike her PAGA claims. She did not exhaust
3 them and even if she had, they are too individualized to resolve on a representative basis.
4 As to why Spears failed to exhaust, it is well established that before pursuing PAGA claims in court,
5 one must first allege facts in support of those claims in the LWDA Notice. Spears' LWDA Notice flunks
6 this requirement. It is composed primarily of boilerplate legalese, and it provides inadequate notice of the
7 claims she now seeks to pursue. In addition, a proper LWDA Notice must allege particular theories of
8 liability. It is not enough to simply point to statutes—a plaintiff must state the mechanism by which the
9 alleged violation occurred. A necessary corollary of this requirement is that the plaintiff must adhere to
10 those theories throughout the case. In response to adverse mlings by this Court, Spears is attempting an
11 end-mn around these requirements. The Court should not indulge Spears. Exhaustion is a jurisdictional
12 requirement, and she otherwise should be estopped from trying to pursue claims created long after she filed
13 her LWDA Notice.
14 It also should be clear by now that Spears' PAGA claims are too individualized to resolve on a
15 representative basis. Spears acknowledges that she "must prove a violation as to each aggrieved employee
16 in order to recover civil penalties." She then argues that whether claims are too individualized does not
17 matter because manageability is not a requirement for representative actions and even if it were, she has
18 come forward with a manageable plan for proving her claims. As to the first point, the law says otherwise,
19 as a long-standing line of Califomia appellate authorities confirms. As for her "plan," the Court should
20 reject it just as it did when rejecdng Plaintiffs' class certification arguments and for the isame reasons:
21 Spears cannot prove her PAGA claims based on records alone. In sum, the time has come for the Court to
22 strike Spears' PAGA claims.
23 H. ARGUMENT
24 A. HNCA's Motion Is Properly Before The Court And The Court Should Grant It
25 Spears raises several procedural objections to HNCA's motion. Each is without rrierit. Spears first
26 argues that HNCA is improperly renewing this motion. Spears Opp. at 12-13. The Court should reject
27 this argument out of hand because as the Court knows, it specifically permitted HNCA to renew this
28 motion. RA439atl. Spears then claims that the Court previously rejected HNCA's arguments. Spears
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 Opp. at 12. Not so. The Court never mled on the merits of this motion, as the Court well knows. RA 439
2 at 1. Spears then incorrectly characterizes HNCA's motion as a motion for summary adjudication in
3 disguise and argues it is therefore improper. Id. at 12-13. Once more. Spears is incorrect. This is a motion
4 to strike, the timing and substance of which is specifically authorized by statute (Code of Civil Procedure
5 section 436) and blessed by controlling appellate authority. See, e.g., Esparza v. Safeway, Inc., 36 Cal.
6 App. 5th 42, 47 (2019) (affirming a motion to strike representative PAGA claims filed on the eve of trial).
7 Because Spears has filed a proposed trial plan (such as it is) and indicated that she does not need to do
8 further discovery, the time is ripe to resolve this motion, and it is proper for the Court to grant it.
9 B. The Court Should Strike Spears' Claims Because She Did Not Exhaust Them
10 Spears is attempting to move forward with four distinct representative PAGA claims, and two
11 derivative claims. See RA 481. Spears' first PAGA claim alleges that from April 5, 2013 until December
12 31, 2016, HNCA failed to include MedFlxWave payments, DenFlxWave payments, SPOT Awards, ACA
13 Incentive Payments, and/or Wellness Incentive payments when calculating overtime (the "Miscalculation
14 Claim"). Id. at 1,4. Second, Spears' "Off the Clock Claim" alleges that during that same time period,
15 HNCA failed to pay non-exempt employees for all hours worked because the timekeeping system used by
16 HNCA failed to record time spent by employees booting up their computers. Id. at \, 1-9. Third, Spears'
17 "Meal Period PAGA Claim" alleges that from April 5,2016 unfil December 31, 2016, HNCA failed to pay
18 meal period premiums because HNCA failed to advise its employees to use the pay code "DTO." Id. at 1,
19 9. Fourth, Spears' EMPCenter PAGA Claim alleges thatfromJanuary 1,2017 to the present, HNCA failed
20 to advise its employees that they could manually enter their start and stop times, resulting in employees not
21 being paid for all hours worked. M at 1, 11.
22 Califomia law requires that Spears must have exhausted each one of these claims by filing them
23 with the LWDA before heading to court. See Arias, 46 Cal. 4th at 981; Brown v. Ralphs Grocery Co., 28
24 Cal. App. 5th 824, 834 (2018). In each instance. Spears failed to do so.
25 1. Spears Did Not Allege Anv Sort Of Off-The-Clock Claim In Her LWDA Notice
26
The Off-the-Clock and EMPCenter PAGA Claims provide the clearest examples of Spears' failure
27
to comply with the exhaustion requirement. Spears' LWDA Notice (including the attached complaint)
28
REPLY E^I SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 nowhere alleges that employees were working off the clock or that employees were not informed that they
2 could manually record time in EMP Center.' And this should not be surprising given that Spears never
3 worked off the clock. Declarafion of Timothy J. Long ("Long Decl.") 12, Ex. A, at 39:21-40:1.
4 Setting those realities aside for a moment, the best Spears can come up with regarding exhaustion
5 is to point to a boilerplate phrase in her LWDA Notice that "Defendant... unlawfully failed to record and
6 pay Plaintiff and other aggrieved employees for all of their time worked." Spears Opp. at 5. Of course,
7 this statement is so broad as to be perfectly useless for exhaustion purposes. A PAGA plaintiff is obligated
8 to provide some amount of detail in her LWDA notice as to how the violation occurred. Otherwise, the
9 LWDA cannot possibly know whether to investigate, and the employer cannot know what violation the
10 plaintiff claims occurred. See Brown, 28 Cal. App. 5th at 837-38 (purpose of exhaustion requirement is to
11 "give sufficient information for the LWDA to assess the seriousness of the alleged violations and decide
12 whether to allocate scarce resources to an investigation, or fpr defendants to determine what policies or
13 practices were being complained of, have an opportunity to cure the violations, and prepare a meaningful
14 response").^ The statement that HNCA "failed to record and pay Plaintiff and other aggrieved employees
15 for all of their time worked" is effectively identical to other notices that have been found insufficient. See,
16 e.g.. Brown, 28 Cal. App. 5th at 837 (statement in LWDA Nofice that employer "failed to pay . . . aggrieved
17 employees all wages due to them within any time period specified by Califomia Labor Code secfion 204'
18 insufficient because it amounted only to a "string of legal conclusions"). Because there is not even a
19 conclusory assertion in Spears' LWDA Notice that Spears or any other aggrieved employee worked off the
20 clock or did not record time in EMP Center because they did not know that they could so rnanually, the
21 Court should strike Spears' Off-the-Clock and EMPCenter PAGA Claims.^
22
23 ' It is curious that Spears is trying to pursue this claim given that this Court has already ruled that HNCA permitted its
employees to manually enter their time work, and that HNCA required its employees to record their actual hours worked. RA
24 439 at 6.
^ Spears relies on questionable authority in arguing that she has adequately exhausted her claims, citing to an unpublished
25 Ninth Circuit decision and several non-binding federal district court decisions (Spears. Opp. at 2-3) that are inconsistent with
Brown, which is binding on this Court.
26 ^ Spears also appears to argue that she adequately exhausted her EMPCenter PAGA Claim because her co-Plaintiff Arana
provided more details about that claim in his LWDA Notice. See Spears Opp., at 5:15-17. But Spears cites no authority for
27 the proposition that an aspiring PAGA representative may piggyback off of someone else's LWDA notice. To the contrary,
LWDA notices are particular to the individual who filed them. See Wong v.AT& TMobility Servs. LLC, 2012 WL 8527485,
2g at *3 (CD. Cal. July 2, 2012) (rejecting plaintiffs' request "that they be allowed to substitute in a new, unidentified, aggrieved
employee" after the court concluded that the representative failed to exhaust).
REPLY IN SUPPORT OF HEALTH NET OF CALIFORMA, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 2. The Court Should Strike Spears' New Meal Period PAGA Claim. Which Is Not
Even Hinted At In Her LWDA Notice
2
3 Spears also did not exhaust her new Meal Period PAGA Claim, which is based on an alleged coding
4 error. See RA 481 at 9-11. While Spears may have alleged a meal period claim in her LWDA Notice, it
5 had nothing to do with a failure to use a "DTO" code, which is not mentioned in the LWDA Notice.
6 The meal period claim in Spears' LWDA Notice is based on the allegation that "[a]s a result of
7 their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS members were also from
8 time to time unable to take off duty meal breaks and were not fully relieved of duty for meal periods."
9 Long Decl. | 3, Ex. B at 5. In other words. Spears believed that she did not have enough time to
10 simultaneously complete her work duties and take her meal period. The Court acknowledged as much in
11 its class certification order. See RA 439 at 5 ("Plaintiffs theory is . . . premised upon break violations
12 caused by pressures of the employees' work.")."* That theory was properly exhausted because it was
13 specifically raised in Spears' LWDA Notice. However, Spears cannot rely on that theory as a basis to
14 claim exhaustion of her new Meal Period PAGA Claim, which is unrelated to whether employees were
15 unable to take meal breaks due to overwork. See Brown, 28 Cal. App. 5th at 838-39 (notice must be
15 sufficient to permit "defendants to determine what policies or practices wei-e being complained of, have an
17 opportunity to cure the violations, and prepare a meaningful response"). See also Harris v. Best Buy Stores,
18 L.P., 2019 WL 343420, at *4 (N.D. Cal. Jan. 28, 2019) ("providing notice of one theory of liability does
19 not constitute notice ofan altemafive theory"); Ortiz v. Amazon,com LLC^, 2017 WL 11093812, at *8 (N.D.
20 Cal. Oct. 10, 2017) (limiting PAGA claims "to those theories outlined in the PAGA Notice"); Holak v. K
21 Mart Corp., 2015 WL 2384895, at *3 (E.D. Cal. May 19, 2015) ("PAGA claims are limited to the specific
22 theories mentioned in the PAGA notice letter."); Bradescu v. Hillstone Rest. Grp., Inc., 2014 WL 5312546,
23 at *11 (CD. Cal. Sept. 18, 2014) ("Plaintiff should consider her PAGA claim to be limited to specifically
24 those theories (and those Labor Code sections) mentioned in her PAGA notice."), order confirmed, 2014
25 WL 5312574 (CD. Cal. Oct. 10,2014).^ Whether a meal period claim was correctly coded has no apparent
26
" It also bears mentioning that when litigating class certification. Plaintiffs represented to the Court that their PAGA claims
27 were co-extensive with their class claims. See RA 481 ("The claims certified under C.C .P. § 382 are coextensive of the
derivative PAGA claims, the trial of which will be based on the same facts and law.")
2g ^ While these federal district court opinions are consistent with Brown, the cases to which Spears cites are not, and each of
them are factually inapposite. For instance in Zayers v. Kiewit Infrastructure West Co., 2017 WL 7058141, at *5 (CD. Cal.
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 connection to whether employees were too busy to take meal breaks, and Spears does not even attempt to
2 draw any logical connection between the two.
3 Lastly, Spears' argument that her new meal period theory "evolved" through discovery is irrelevant.
4 Spears Opp. at 5. What matters is whether the theory alleged in her LWDA Notice is the same as the theory
5 she seeks to litigate. Because the theory she is now trying to pursue is entirely unrelated to the theory she
6 asserted in her LWDA Notice, the Court must strike Spears' Meal Period PAGA Claim.^
7 3. The Court Should Strike Spears' Miscalculation Claim Because The LWDA
Did Not Reference The Payments That Are At Issue
8
9 Finally, Spears' opposition contends that her LWDA Notice properly exhausted the Miscalculation
10 Claim. Once more. Spears' argument should not be well taken. Spears devotes her opposition brief to
11 attacking an argument that HNCA never made, namely that Spears' LWDA Notice was deficient because
12 it did not "specifically name . . . each type of compensation that an employer failed to include in the regular
13 rate." Spears Opp. at 5. To be perfectly clear, HNCA contends that Spears was required to allege the
14 particular facts and theories underlying this claim in her LWDA Notice. And once those theories are alleged
15 in the LWDA Notice, Spears is limited to those theories for the duration of the case unless shefilesa nevy
16 nofice alleging different theories. See Brown, 28 Cal. App. 5th at 835. See also Harris, 2019 WL 343420,
17 at 1=4; Holak, 2015 WL 2384895, at *3. Spears failed to abide by these mles.
18 Spears' LWDA Notice alleged that HNCA improperly failed to include "non-discrefionary
19 incentive" payments made to employees for meeting "various performance goals," including "health
20 benefits cash out opfions" when calculating overtime. Long Decl. 13, Ex. B at 4. This description does
21 not mesh with any of the five payrrients now at issue, a fact that Spears does not dispute. Spears also
22
23 Nov. 9, 2017), the LWDA Notice alleged that "Defendants required Claimant and other aggrieved employees to purchase their
own uniforms and tools for their assigned tasks, but never reimbursed Claimant for such expenditures[.]" This is a specific
24 factual allegation, and would have alerted both the employer and the LWDA to the nature of the violation.
* Spears' argument is not only irrelevant, it is illogical as well. Spears did not need discovery to inform her of what her meal
25 period theory should be because Spears alleged that she personally did not take on-time meal periods due to the amount of work
she was given. In her deposition, she stated unequivocally that she did not take meal periods due to "work that was provided to
25 [her]." Long Decl. \ 2, Ex. A at 133:5-7. When asked whether there was "any other reason" why she did not take meal periods
on time. Spears responded, "not that I can recall." Id. at 133:8-10. Thus, Spears expressly confirmed that her meal period claim
27 (including her PAGA claim to that effect) had nothing to do with any alleged coding mistakes. Tbe only reason Spears has
altered her claim now is because this Court previously ruled that Spears' original meal period theory involved too many
2g individualized determinations. HNCA is aware of no authority stating that a PAGA representative may concoct a new,
unexhausted theory of liability when the Court rejects the old theory.
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 contends that her Miscalculation Claim may proceed because she "need not have suffered the exact
2 violations for which they may pursue PAGA penalties," citing to Huff v. Securitas Sec. Servs. USA, Inc.,
3 23 Cal. App. 5th 745, 757 (2018). Spears Opp. at 5. This argument misses the point. Huff concemed
4 standing, not exhaustion. Huff has no applicability here. The Court should strike Spears' PAGA
5 Miscalculation Claim.
6 C. Spears Should Be Estopped From Attempting Her End-Run
7 HNCA has argued that Spears should be judicially estopped from changing her theories more than
8 two years into this case. Califomia law sets forth afive-factortest to determine whether a party should be
9 judicially estopped from asserting inconsistent legal positions. See Jackson v. County of Los Angeles, 60
10 Cal. App. 4th 171, 181 (1997). Spears' "response" to this argument only bolsters HNCA's contention that
11 Spears is "playing fast and loose" with judicial process. See Hanna v. LA. Cty. Sheriff's Dep't, 102 Cal.
12 App. 4th 887, 897 (2002). Spears responds only to die first prong. Spears Opp. at 11-12. By not
13 countering HNCA's other arguments. Spears has waived any opposition to them. See Cahill v. San Diego
14 Gas & Elec. Co., 194 Cal. App. 4th 939, 956 (2011) ("The absence of cogent legal argument or citation to
15 authority allows this court to treat the contention as waived."). Spears' only argument as to why she should
16 not be judicially estopped is to assert that her meal period claims are consistent with one another. Even a
17 cursory review of the record belies this argument. Plaintiffs' motion for class certification attributed the
18 alleged meal break violations to a "lack of enforced policies." RA 307 at 1? By contrast. Spears' new
19 Meal Period PAGA Claim specifically alleges the existence of a "uniform policy" which caused numerous
20 unpaid meal period premiums. RA 481 at 9. Either the alleged meal period violations were caused by a
21 uniform policy, or they were caused by a lack of policy. Spears cannot have it both ways, and she should
22 be estoppedfromtrying.
23 D. The Court Should Strike Spears' Individualized PAGA Claims
24 Spears asserts that PAGA claims need not be manageable, and that in any event her trial plan
25 proposes a manageable way to try her PAGA claims. Spears is vvrong on the law and her "plan" fails to
26 overcome the defects the Court previously identified when she offered a virtually identical plan.
27 ///
28 As pointed out above in Footnote 4, Spears told this Court that her PAGA claims were coextensive with her class claims.
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 Spears mistakenly argues that a PAGA plaintiff never needs to satisfy any sort of manageability
2 requirement, citing to Arias v. Superior Court, 46 Cal. 4th 969, 975 (2009). Spears Opp. at 6-8. However,
3 Arias only stated that class action requirements need not be met in PAGA actions. Arias, 46 Cal. 4th at
4 975. Arias does not stand for the proposition that courts should abdicate their equitable responsibility to
5 manage representative actions. That responsibility (and power) is confirmed by a long line of Califomia
6 authority that Arias did not overmle. See S. Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App.
7 4th 861, 897 (1999) (claims under Califomia's Unfair Competition law "were not sufficiently uniform to
8 allow representative treatment"); Bronco Wine Co. v. Frank A. Logoluso Farms, 214 Cal. App. 3d 699,
9 720 (1989) (trial court abused its discretion in denying motion to strike because "insurmountable control
10 and management problems" arose in attempting to litigate on a representative basis). Cf. Williams v.
11 Superior Court, 3 Cal. 5th 531, 559 (2017) ("Proof bf a uniform policy [in PAGA cases] is one way a
12 plaintiff might seek to render trial of the action manageable.").^ See also Salazar v. McDonald's Corp.,
13 2017 WL 88999, at *8 (N.D. Cal. j;an. 5, 2017) (applying South Bay Chevrolet and striking plaintiffs'
14 representative PAGA claims as unmanageable); Ortiz v. CVS Caremark Corp., 2014 WL 1117614, at *4
15 (N.D. Cal. Mar. 19,2014) ("[T]he Court does not conclude that PAGA claims are unmanageable in gerierat
16 but only that the circumstances ofthis case make the PAGA claim here unmanageable because a multitude
17 of individualized assessments would be necessary.").
18 Spears does not and cannot dispute that this line of Califomia appellate cases controls, or that under
19 Califomia law, "courts have inherent equity, supervisory and administrative powers as well as inherent
20 power to control litigation before them.'' Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1377 (1992).
21 Courts can and should sfrike representative claims that are too individualized. The only question is whether
22 this Court should exercise that discretion in this case. The Court should. Spears' opposition makes clear
23 that she has no workable plan to try her claims in a manner that respects HNCA's due process rights and
24 does not overburden this Court. For this additional reason, the Court should sfrike these claims.
25
' Spears takes issue with HNCA's reliance on Williams, stating that Williams "makes no holding regarding the applicability of
26 manageability to a PAGA claim." Spears Opp. at 8. But Spears offers no explanation as to what else the Califomia Supreme
Court could have meant in stating that proof of a uniform policy provides a way to manageably try a PAGA claim. Williams,
27 3 Cal. 5th at 559. The only possible interpretation is that the Court was acknowledging that courts must ensure that PAGA
actions do not involve too many individualized issues. This Court, in tum, is obligated to enforce that requirement. See
2g Hubbard v. Superior Court, 66 Cal. App. 4th 1163, 1168 (1997) ("The Court of Appeal, the appellate department of the
superior court, and the trial courts are required to follow the 'statements of law' of the Califomia Supreme Court.").
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, D>JC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 Spears concedes that a PAGA representative "must prove a violation as to each aggrieved employee
2 in order to recover civil penalties." Spears Opp. at 7. In an effort to show that she can accomplish this
3 task in a manageable fashion. Spearsfirstrelies on decisions that are factually distinct from this case. She
4 then repackages a plan that the Court has previously rejected.
5 To begin with, this Court has already mled that "as an express policy matter, HNCA provided
6 employees with a 30-minute meal period before their fifth hour of work, and employees who missed meal
7 periods received appropriate penalties." RA 439 at 4. The Court then held that Plaintiffs meal period
8 theory was based on a "lack of enforced policies." Id. at 5. Thus, and as this Court has already mled,
9 Spears' meal period claim is not based on any companywide policy, an important distinction when
10 considering the authorities upon which Spears relies. Begin with Carrington v. Starbucks Corp., 30 Cal.
11 App. 5th 504, 507-08 (2018), upon which Spears leans heavily.
12 In Carrington, the court considered but ultimately rejected the defendant's arguments that the
13 evidence was too individualized to support a representative verdict. It reached this conclusion after finding
14 that "generally applicable corporate policies and procedures resulted in numerous employees with initial
15 or total shifts slightly in excess of five hours not being provided with timely meal breaks and not being
16 paid meal period premiums, in violation of the law." Id. at 526 (emphasis added). The court therefore
17 distinguished Carrington's theory from those of other cases "where plainfiffs PAGA claim failed because
18 the evidence showed defendant's practices 'were not sufficiently uniform to allow representafive
19 freatment.'" Id. (quoting South Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861,
20 897(1999)).^
21 Spears also relies upon Heredia v. Eddie Bauer LLC, 2020 WL 1492710, at =^=4 (N.D. Cal. Mar. 27,
22 2020). There the court concluded that plaintiff had "presented a fairly manageable trial plan" in a case
23 alleging that defendant forced its employees to work off the clock while undergoing security inspections
24 when leaving work. M,at'''l,*5. Once again, however,/feret/Zfl bears no resemblance to this case because
25 in Heredia, it was undisputed that the defendant had a formal, written policy requiring "all associates [to]
26 ,
' Carrington's citation to South Bay Chevrolet is particularly noteworthy. Recall that South Bay Chevrolet is one of several
27 Califomia Court of Appeal cases holding that representative actions must be manageable in order to proceed to trial.
Carrington''s reliance on South Bay Chevrolet in the context of PAGA claims makes clear that these cases live and breathe:
2g where PAGA claims are unmanageable. South Bay Chevrolet and other cases dictate that they may not proceed.
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 have their handbags, packages, briefcases, backpacks and other parcels, inspected by a member of store
2 management whenever they leave the store." Long Decl. Tf 4, Ex. C, at 2. No such singular policy exists
3 here. Rather than being able to prove PAGA claims based on a uniform policy, as was the case in Heredia
4 and Carrington, Spears can only prove her claims through individualized, fact-specific adjudications.
5 The evidence supports this conclusion as well. As Plaintiffs noted in their motion for class
6 certification, some employees "reported workloads requiring them to work through meal periods[.]" RA
7 307 at 4. Others "report[ed] extreme management pressure to claim a compliant meal period occurred[.]"
8 Id. These alleged violations, even if true, have nothing to do with any corporate policy identified by
9 Spears.'" The reasons are necessarily tied to each individual employee's relationship with his or her
10 supervisor and/or how much work they were assigned on a particular day.'' These distinctions are covered
11 at length in HNCA's Compendium of Evidence filed in support of its prior motions. See RA 317, 324.
12 Spears' Miscalculation, Off-the-Clock, and EMPCenter PAGA Claims are similarly unmanageable.
13 There are complex evidentiary issues inherent in each of the five payments at issue in the Miscalculation
14 Claim. There are a myriad of individualized factual disputes involved in resolving Spears' two off-the-
15 clock related PAGA Claims, as evidenced by the Court having declined to certify them in the first instance.
16 Proving up each of them will consume substantial court time, time which is unaccounted for in Spears'
17 proposed trial plan.
18 Rather than dealing with the evidence in this case and explaining why her PAGA claims are not
19 hopelessly individualized. Spears generically responds that with time and payroll data, she can "calculate
20 damages and penalties owed to the entire class[.]" Spears Opp. at 11. This argument misses the point (by
21 not addressing liability) and fares no better than when Plaintiffsfriedit before. The Court will recall that
22 in support of their class certification motion. Plaintiffs submitted a declaration from a different "expert"
23
24 '° See footnote 4 supra (Plaintiffs have stated that their putative class claims are co-extensive with their PAGA claims).
'' Spears' testimony illustrates this point well. As noted already. Spears' attributed her missed meal breaks to "work that was
25 provided to [her]." Long Decl. \ 2, Ex. A at 133:5-7. But when asked who told her that she was required to fmish her work
before taking her meal break, she stated that she could not recall. Id. at 133:8-10. She further noted that because there were
25 "other [supervisors] and leads" at the office, she could not be sure whether the directive came from her supervisor or fi-om
someone else. Id. at 133:14—21. From this testimony, it is plain that in Spears' opinion, to the extent employees did not take
27 on-time meal periods, there is no single reason why. Some may have misunderstood the company's policy; others may have
been misinformed by their supervisors; and still others may have skipped meal periods of their own volition, in which case no
2g violation occurred. As Spears' deposition demonstrates, the only way to disringuish onefi"omanother is to ask each employee
individually.
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTAnVE PAGA CLAIMS
1 and tried to convince this Court that they could prove liability based on records alone. See RA 310. The
2 Court correctly rejected that argument (and evidence) because the Court understood that records do not
3 and cannot tell the whole story. So, for example, records cannot explain why an employee took a short or
4 late meal break, or decided to work through a meal break. To learn the why, and to determine whether
5 there has been a meal break violation, one has to ask the employee. See RA 439 at 5 ("Given the paucity
6 of evidence, and HNCA's undisputed break policy. Plaintiffs claims would depend upon individualized
7 investigations of each class member's personal experiences and practices in taking meal break periods or
8 understandings as to their available options or remedies in the event of a missed or intermpted break
9 period."). Spears' latest effort to overcome this obvious challenge to proving her PAGA claims should
10 fare no better now. Just as before, the new "expert" does not testify that records alone prove violations. If
11 anything, the declaration submitted by this new "expert" only confirms that thousands of individualized
12 inquiries will be needed to resolve just one (meal break) of her four PAGA claims. Spears Opp. at 10:7-
13 11.
14 HL CONCLUSION
15 For all of these reasons, as well as those set forth in the papers HNCA originally filed in support of
16 its motion, which HNCA has incorporated by reference, the Court should grant HNCA's motion to strike.
17
18 DATED: May 1,2020 GREENBERG TRAURIG, LLP
19
20 By
TIMOTHY J. LONG
21 ROWENA SANTOS
SAMUEL S. HYDE
22
Attomeys for Defendant
23 HEALTH NET OF CALIFORNLA, mC.
24
25
26
27
28
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE
ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
1 Andrea Spears, et al. vs. Health Net of Califomia, Inc.
Sacramento County Superior Court Case No. 34-2017-00210560
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am employed in the County of Sacramento, State ofCalifomia and my
business address is Greenberg Traurig, LLP, i201 K Street, Suite 1100, Sacramento, CA 95814.
5
On this day, I caused to be served the following document(s):
6
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC.'S MOTION
7 TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS
8 By placing Q the original ^ a true copy into sealed envelopes addressed and served as
follows:
9
Norman Blumenthal
10 Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears
Piya Mukherjee
11 Victoria B. Rivapalacio
BLUMENTHAL, NORDREHAUG &
12 BHOWMIK LLP
2255 Calle Clara
13 La Jolla, CA 92037
Email: norm@bamlawca.com
14 Telephone: (858)551-1223
Facsimile: (858) 551-1232
15
Shaun Setareh
16 William Pao Attorneys for Plaintiff Tomas R. Arana
Alex Mcintosh
17 SETAREH LAW GROUP
315 S. Beverly Drive, Suite 315
18 Beverly Hills, CA 90212
Email: shaun(a),setarehlaw.com
19 william(a),setarehlaw.com
alex(S),setarehlaw.com
20 Telephone: (310)888-7771
Facsimile: (310)888-0109
21
3 BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy
22 thereof attached to the elecfronic email address(es) as set forth above.
23 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is tme and correct.
24
Executed on October 6, 2020, at Sacramento, Califomia.
25
26 Marlene Celis
27
28
PROOF OF SERVICE
Preview
1 Timothy J. Long (SBN 137591) H^poesED longt@gtlaw.com 2 Samuel S. Hyde (SBN 327065) OCT 0 6 2020 hydes@gtlaw.com 3 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 4 Sacramento, Califomia 95814 Telephone: 916.442.1 111 5 Facsimile: 916.448.1709 6 Rowena Santos (SBN 210185) santosro@gtlaw.com 7 GREENBERG TRAURIG, LLP 18565 Jamboree Road, Suite 500 8 Irvine, Califomia 92612 Telephone: 949.732.6500 9 Facsimile: 949.732.6501 10 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SACRAMENTO 14 15 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560-CU-OE-GDS herself and on behalf of all persons similarly (Consolidated with Case No. 34-2017-00216685-CU- 16 situated. OE-GDS) 17 Plaintiff, REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE 18 HEALTH NET OF CALIFORNIA, EMC, a ANDREA SPEARS' REPRESENTATIVE PAGA Califomia corporation; and DOES 1 through 50, CLAIMS 19 inclusive. Date: October 16,2020 20 Defendants. Time: 11:00 a.m. Dept.: 41 21 Judge: Hon. David De Alba 22 Complaint Filed: April 5, 2017 TOMAS R. ARANA, on behalf of himself, all others similarly situated, FAC Filed: June 29, 2017 23 Consolidated Complaint Filed: Dec. 21, 2017 24 Plainfiff, 25 HEALTH NET OF CALIFORNIA, INC, a 26 Califomia corporation; and DOES 1 through 50. 27 inclusive. Defendants. 28 REPLY IN SUPPORT OF HEALTH NET OF CALIFORMA, ENC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 I. INTRODUCTION 2 Spears' opposifion underscores why this Court should strike her PAGA claims. She did not exhaust 3 them and even if she had, they are too individualized to resolve on a representative basis. 4 As to why Spears failed to exhaust, it is well established that before pursuing PAGA claims in court, 5 one must first allege facts in support of those claims in the LWDA Notice. Spears' LWDA Notice flunks 6 this requirement. It is composed primarily of boilerplate legalese, and it provides inadequate notice of the 7 claims she now seeks to pursue. In addition, a proper LWDA Notice must allege particular theories of 8 liability. It is not enough to simply point to statutes—a plaintiff must state the mechanism by which the 9 alleged violation occurred. A necessary corollary of this requirement is that the plaintiff must adhere to 10 those theories throughout the case. In response to adverse mlings by this Court, Spears is attempting an 11 end-mn around these requirements. The Court should not indulge Spears. Exhaustion is a jurisdictional 12 requirement, and she otherwise should be estopped from trying to pursue claims created long after she filed 13 her LWDA Notice. 14 It also should be clear by now that Spears' PAGA claims are too individualized to resolve on a 15 representative basis. Spears acknowledges that she "must prove a violation as to each aggrieved employee 16 in order to recover civil penalties." She then argues that whether claims are too individualized does not 17 matter because manageability is not a requirement for representative actions and even if it were, she has 18 come forward with a manageable plan for proving her claims. As to the first point, the law says otherwise, 19 as a long-standing line of Califomia appellate authorities confirms. As for her "plan," the Court should 20 reject it just as it did when rejecdng Plaintiffs' class certification arguments and for the isame reasons: 21 Spears cannot prove her PAGA claims based on records alone. In sum, the time has come for the Court to 22 strike Spears' PAGA claims. 23 H. ARGUMENT 24 A. HNCA's Motion Is Properly Before The Court And The Court Should Grant It 25 Spears raises several procedural objections to HNCA's motion. Each is without rrierit. Spears first 26 argues that HNCA is improperly renewing this motion. Spears Opp. at 12-13. The Court should reject 27 this argument out of hand because as the Court knows, it specifically permitted HNCA to renew this 28 motion. RA439atl. Spears then claims that the Court previously rejected HNCA's arguments. Spears REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 Opp. at 12. Not so. The Court never mled on the merits of this motion, as the Court well knows. RA 439 2 at 1. Spears then incorrectly characterizes HNCA's motion as a motion for summary adjudication in 3 disguise and argues it is therefore improper. Id. at 12-13. Once more. Spears is incorrect. This is a motion 4 to strike, the timing and substance of which is specifically authorized by statute (Code of Civil Procedure 5 section 436) and blessed by controlling appellate authority. See, e.g., Esparza v. Safeway, Inc., 36 Cal. 6 App. 5th 42, 47 (2019) (affirming a motion to strike representative PAGA claims filed on the eve of trial). 7 Because Spears has filed a proposed trial plan (such as it is) and indicated that she does not need to do 8 further discovery, the time is ripe to resolve this motion, and it is proper for the Court to grant it. 9 B. The Court Should Strike Spears' Claims Because She Did Not Exhaust Them 10 Spears is attempting to move forward with four distinct representative PAGA claims, and two 11 derivative claims. See RA 481. Spears' first PAGA claim alleges that from April 5, 2013 until December 12 31, 2016, HNCA failed to include MedFlxWave payments, DenFlxWave payments, SPOT Awards, ACA 13 Incentive Payments, and/or Wellness Incentive payments when calculating overtime (the "Miscalculation 14 Claim"). Id. at 1,4. Second, Spears' "Off the Clock Claim" alleges that during that same time period, 15 HNCA failed to pay non-exempt employees for all hours worked because the timekeeping system used by 16 HNCA failed to record time spent by employees booting up their computers. Id. at \, 1-9. Third, Spears' 17 "Meal Period PAGA Claim" alleges that from April 5,2016 unfil December 31, 2016, HNCA failed to pay 18 meal period premiums because HNCA failed to advise its employees to use the pay code "DTO." Id. at 1, 19 9. Fourth, Spears' EMPCenter PAGA Claim alleges thatfromJanuary 1,2017 to the present, HNCA failed 20 to advise its employees that they could manually enter their start and stop times, resulting in employees not 21 being paid for all hours worked. M at 1, 11. 22 Califomia law requires that Spears must have exhausted each one of these claims by filing them 23 with the LWDA before heading to court. See Arias, 46 Cal. 4th at 981; Brown v. Ralphs Grocery Co., 28 24 Cal. App. 5th 824, 834 (2018). In each instance. Spears failed to do so. 25 1. Spears Did Not Allege Anv Sort Of Off-The-Clock Claim In Her LWDA Notice 26 The Off-the-Clock and EMPCenter PAGA Claims provide the clearest examples of Spears' failure 27 to comply with the exhaustion requirement. Spears' LWDA Notice (including the attached complaint) 28 REPLY E^I SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 nowhere alleges that employees were working off the clock or that employees were not informed that they 2 could manually record time in EMP Center.' And this should not be surprising given that Spears never 3 worked off the clock. Declarafion of Timothy J. Long ("Long Decl.") 12, Ex. A, at 39:21-40:1. 4 Setting those realities aside for a moment, the best Spears can come up with regarding exhaustion 5 is to point to a boilerplate phrase in her LWDA Notice that "Defendant... unlawfully failed to record and 6 pay Plaintiff and other aggrieved employees for all of their time worked." Spears Opp. at 5. Of course, 7 this statement is so broad as to be perfectly useless for exhaustion purposes. A PAGA plaintiff is obligated 8 to provide some amount of detail in her LWDA notice as to how the violation occurred. Otherwise, the 9 LWDA cannot possibly know whether to investigate, and the employer cannot know what violation the 10 plaintiff claims occurred. See Brown, 28 Cal. App. 5th at 837-38 (purpose of exhaustion requirement is to 11 "give sufficient information for the LWDA to assess the seriousness of the alleged violations and decide 12 whether to allocate scarce resources to an investigation, or fpr defendants to determine what policies or 13 practices were being complained of, have an opportunity to cure the violations, and prepare a meaningful 14 response").^ The statement that HNCA "failed to record and pay Plaintiff and other aggrieved employees 15 for all of their time worked" is effectively identical to other notices that have been found insufficient. See, 16 e.g.. Brown, 28 Cal. App. 5th at 837 (statement in LWDA Nofice that employer "failed to pay . . . aggrieved 17 employees all wages due to them within any time period specified by Califomia Labor Code secfion 204' 18 insufficient because it amounted only to a "string of legal conclusions"). Because there is not even a 19 conclusory assertion in Spears' LWDA Notice that Spears or any other aggrieved employee worked off the 20 clock or did not record time in EMP Center because they did not know that they could so rnanually, the 21 Court should strike Spears' Off-the-Clock and EMPCenter PAGA Claims.^ 22 23 ' It is curious that Spears is trying to pursue this claim given that this Court has already ruled that HNCA permitted its employees to manually enter their time work, and that HNCA required its employees to record their actual hours worked. RA 24 439 at 6. ^ Spears relies on questionable authority in arguing that she has adequately exhausted her claims, citing to an unpublished 25 Ninth Circuit decision and several non-binding federal district court decisions (Spears. Opp. at 2-3) that are inconsistent with Brown, which is binding on this Court. 26 ^ Spears also appears to argue that she adequately exhausted her EMPCenter PAGA Claim because her co-Plaintiff Arana provided more details about that claim in his LWDA Notice. See Spears Opp., at 5:15-17. But Spears cites no authority for 27 the proposition that an aspiring PAGA representative may piggyback off of someone else's LWDA notice. To the contrary, LWDA notices are particular to the individual who filed them. See Wong v.AT& TMobility Servs. LLC, 2012 WL 8527485, 2g at *3 (CD. Cal. July 2, 2012) (rejecting plaintiffs' request "that they be allowed to substitute in a new, unidentified, aggrieved employee" after the court concluded that the representative failed to exhaust). REPLY IN SUPPORT OF HEALTH NET OF CALIFORMA, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 2. The Court Should Strike Spears' New Meal Period PAGA Claim. Which Is Not Even Hinted At In Her LWDA Notice 2 3 Spears also did not exhaust her new Meal Period PAGA Claim, which is based on an alleged coding 4 error. See RA 481 at 9-11. While Spears may have alleged a meal period claim in her LWDA Notice, it 5 had nothing to do with a failure to use a "DTO" code, which is not mentioned in the LWDA Notice. 6 The meal period claim in Spears' LWDA Notice is based on the allegation that "[a]s a result of 7 their rigorous work schedules, PLAINTIFF and other CALIFORNIA CLASS members were also from 8 time to time unable to take off duty meal breaks and were not fully relieved of duty for meal periods." 9 Long Decl. | 3, Ex. B at 5. In other words. Spears believed that she did not have enough time to 10 simultaneously complete her work duties and take her meal period. The Court acknowledged as much in 11 its class certification order. See RA 439 at 5 ("Plaintiffs theory is . . . premised upon break violations 12 caused by pressures of the employees' work.")."* That theory was properly exhausted because it was 13 specifically raised in Spears' LWDA Notice. However, Spears cannot rely on that theory as a basis to 14 claim exhaustion of her new Meal Period PAGA Claim, which is unrelated to whether employees were 15 unable to take meal breaks due to overwork. See Brown, 28 Cal. App. 5th at 838-39 (notice must be 15 sufficient to permit "defendants to determine what policies or practices wei-e being complained of, have an 17 opportunity to cure the violations, and prepare a meaningful response"). See also Harris v. Best Buy Stores, 18 L.P., 2019 WL 343420, at *4 (N.D. Cal. Jan. 28, 2019) ("providing notice of one theory of liability does 19 not constitute notice ofan altemafive theory"); Ortiz v. Amazon,com LLC^, 2017 WL 11093812, at *8 (N.D. 20 Cal. Oct. 10, 2017) (limiting PAGA claims "to those theories outlined in the PAGA Notice"); Holak v. K 21 Mart Corp., 2015 WL 2384895, at *3 (E.D. Cal. May 19, 2015) ("PAGA claims are limited to the specific 22 theories mentioned in the PAGA notice letter."); Bradescu v. Hillstone Rest. Grp., Inc., 2014 WL 5312546, 23 at *11 (CD. Cal. Sept. 18, 2014) ("Plaintiff should consider her PAGA claim to be limited to specifically 24 those theories (and those Labor Code sections) mentioned in her PAGA notice."), order confirmed, 2014 25 WL 5312574 (CD. Cal. Oct. 10,2014).^ Whether a meal period claim was correctly coded has no apparent 26 " It also bears mentioning that when litigating class certification. Plaintiffs represented to the Court that their PAGA claims 27 were co-extensive with their class claims. See RA 481 ("The claims certified under C.C .P. § 382 are coextensive of the derivative PAGA claims, the trial of which will be based on the same facts and law.") 2g ^ While these federal district court opinions are consistent with Brown, the cases to which Spears cites are not, and each of them are factually inapposite. For instance in Zayers v. Kiewit Infrastructure West Co., 2017 WL 7058141, at *5 (CD. Cal. REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 connection to whether employees were too busy to take meal breaks, and Spears does not even attempt to 2 draw any logical connection between the two. 3 Lastly, Spears' argument that her new meal period theory "evolved" through discovery is irrelevant. 4 Spears Opp. at 5. What matters is whether the theory alleged in her LWDA Notice is the same as the theory 5 she seeks to litigate. Because the theory she is now trying to pursue is entirely unrelated to the theory she 6 asserted in her LWDA Notice, the Court must strike Spears' Meal Period PAGA Claim.^ 7 3. The Court Should Strike Spears' Miscalculation Claim Because The LWDA Did Not Reference The Payments That Are At Issue 8 9 Finally, Spears' opposition contends that her LWDA Notice properly exhausted the Miscalculation 10 Claim. Once more. Spears' argument should not be well taken. Spears devotes her opposition brief to 11 attacking an argument that HNCA never made, namely that Spears' LWDA Notice was deficient because 12 it did not "specifically name . . . each type of compensation that an employer failed to include in the regular 13 rate." Spears Opp. at 5. To be perfectly clear, HNCA contends that Spears was required to allege the 14 particular facts and theories underlying this claim in her LWDA Notice. And once those theories are alleged 15 in the LWDA Notice, Spears is limited to those theories for the duration of the case unless shefilesa nevy 16 nofice alleging different theories. See Brown, 28 Cal. App. 5th at 835. See also Harris, 2019 WL 343420, 17 at 1=4; Holak, 2015 WL 2384895, at *3. Spears failed to abide by these mles. 18 Spears' LWDA Notice alleged that HNCA improperly failed to include "non-discrefionary 19 incentive" payments made to employees for meeting "various performance goals," including "health 20 benefits cash out opfions" when calculating overtime. Long Decl. 13, Ex. B at 4. This description does 21 not mesh with any of the five payrrients now at issue, a fact that Spears does not dispute. Spears also 22 23 Nov. 9, 2017), the LWDA Notice alleged that "Defendants required Claimant and other aggrieved employees to purchase their own uniforms and tools for their assigned tasks, but never reimbursed Claimant for such expenditures[.]" This is a specific 24 factual allegation, and would have alerted both the employer and the LWDA to the nature of the violation. * Spears' argument is not only irrelevant, it is illogical as well. Spears did not need discovery to inform her of what her meal 25 period theory should be because Spears alleged that she personally did not take on-time meal periods due to the amount of work she was given. In her deposition, she stated unequivocally that she did not take meal periods due to "work that was provided to 25 [her]." Long Decl. \ 2, Ex. A at 133:5-7. When asked whether there was "any other reason" why she did not take meal periods on time. Spears responded, "not that I can recall." Id. at 133:8-10. Thus, Spears expressly confirmed that her meal period claim 27 (including her PAGA claim to that effect) had nothing to do with any alleged coding mistakes. Tbe only reason Spears has altered her claim now is because this Court previously ruled that Spears' original meal period theory involved too many 2g individualized determinations. HNCA is aware of no authority stating that a PAGA representative may concoct a new, unexhausted theory of liability when the Court rejects the old theory. REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 contends that her Miscalculation Claim may proceed because she "need not have suffered the exact 2 violations for which they may pursue PAGA penalties," citing to Huff v. Securitas Sec. Servs. USA, Inc., 3 23 Cal. App. 5th 745, 757 (2018). Spears Opp. at 5. This argument misses the point. Huff concemed 4 standing, not exhaustion. Huff has no applicability here. The Court should strike Spears' PAGA 5 Miscalculation Claim. 6 C. Spears Should Be Estopped From Attempting Her End-Run 7 HNCA has argued that Spears should be judicially estopped from changing her theories more than 8 two years into this case. Califomia law sets forth afive-factortest to determine whether a party should be 9 judicially estopped from asserting inconsistent legal positions. See Jackson v. County of Los Angeles, 60 10 Cal. App. 4th 171, 181 (1997). Spears' "response" to this argument only bolsters HNCA's contention that 11 Spears is "playing fast and loose" with judicial process. See Hanna v. LA. Cty. Sheriff's Dep't, 102 Cal. 12 App. 4th 887, 897 (2002). Spears responds only to die first prong. Spears Opp. at 11-12. By not 13 countering HNCA's other arguments. Spears has waived any opposition to them. See Cahill v. San Diego 14 Gas & Elec. Co., 194 Cal. App. 4th 939, 956 (2011) ("The absence of cogent legal argument or citation to 15 authority allows this court to treat the contention as waived."). Spears' only argument as to why she should 16 not be judicially estopped is to assert that her meal period claims are consistent with one another. Even a 17 cursory review of the record belies this argument. Plaintiffs' motion for class certification attributed the 18 alleged meal break violations to a "lack of enforced policies." RA 307 at 1? By contrast. Spears' new 19 Meal Period PAGA Claim specifically alleges the existence of a "uniform policy" which caused numerous 20 unpaid meal period premiums. RA 481 at 9. Either the alleged meal period violations were caused by a 21 uniform policy, or they were caused by a lack of policy. Spears cannot have it both ways, and she should 22 be estoppedfromtrying. 23 D. The Court Should Strike Spears' Individualized PAGA Claims 24 Spears asserts that PAGA claims need not be manageable, and that in any event her trial plan 25 proposes a manageable way to try her PAGA claims. Spears is vvrong on the law and her "plan" fails to 26 overcome the defects the Court previously identified when she offered a virtually identical plan. 27 /// 28 As pointed out above in Footnote 4, Spears told this Court that her PAGA claims were coextensive with her class claims. REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 Spears mistakenly argues that a PAGA plaintiff never needs to satisfy any sort of manageability 2 requirement, citing to Arias v. Superior Court, 46 Cal. 4th 969, 975 (2009). Spears Opp. at 6-8. However, 3 Arias only stated that class action requirements need not be met in PAGA actions. Arias, 46 Cal. 4th at 4 975. Arias does not stand for the proposition that courts should abdicate their equitable responsibility to 5 manage representative actions. That responsibility (and power) is confirmed by a long line of Califomia 6 authority that Arias did not overmle. See S. Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 7 4th 861, 897 (1999) (claims under Califomia's Unfair Competition law "were not sufficiently uniform to 8 allow representative treatment"); Bronco Wine Co. v. Frank A. Logoluso Farms, 214 Cal. App. 3d 699, 9 720 (1989) (trial court abused its discretion in denying motion to strike because "insurmountable control 10 and management problems" arose in attempting to litigate on a representative basis). Cf. Williams v. 11 Superior Court, 3 Cal. 5th 531, 559 (2017) ("Proof bf a uniform policy [in PAGA cases] is one way a 12 plaintiff might seek to render trial of the action manageable.").^ See also Salazar v. McDonald's Corp., 13 2017 WL 88999, at *8 (N.D. Cal. j;an. 5, 2017) (applying South Bay Chevrolet and striking plaintiffs' 14 representative PAGA claims as unmanageable); Ortiz v. CVS Caremark Corp., 2014 WL 1117614, at *4 15 (N.D. Cal. Mar. 19,2014) ("[T]he Court does not conclude that PAGA claims are unmanageable in gerierat 16 but only that the circumstances ofthis case make the PAGA claim here unmanageable because a multitude 17 of individualized assessments would be necessary."). 18 Spears does not and cannot dispute that this line of Califomia appellate cases controls, or that under 19 Califomia law, "courts have inherent equity, supervisory and administrative powers as well as inherent 20 power to control litigation before them.'' Cottle v. Superior Court, 3 Cal. App. 4th 1367, 1377 (1992). 21 Courts can and should sfrike representative claims that are too individualized. The only question is whether 22 this Court should exercise that discretion in this case. The Court should. Spears' opposition makes clear 23 that she has no workable plan to try her claims in a manner that respects HNCA's due process rights and 24 does not overburden this Court. For this additional reason, the Court should sfrike these claims. 25 ' Spears takes issue with HNCA's reliance on Williams, stating that Williams "makes no holding regarding the applicability of 26 manageability to a PAGA claim." Spears Opp. at 8. But Spears offers no explanation as to what else the Califomia Supreme Court could have meant in stating that proof of a uniform policy provides a way to manageably try a PAGA claim. Williams, 27 3 Cal. 5th at 559. The only possible interpretation is that the Court was acknowledging that courts must ensure that PAGA actions do not involve too many individualized issues. This Court, in tum, is obligated to enforce that requirement. See 2g Hubbard v. Superior Court, 66 Cal. App. 4th 1163, 1168 (1997) ("The Court of Appeal, the appellate department of the superior court, and the trial courts are required to follow the 'statements of law' of the Califomia Supreme Court."). REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, D>JC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 Spears concedes that a PAGA representative "must prove a violation as to each aggrieved employee 2 in order to recover civil penalties." Spears Opp. at 7. In an effort to show that she can accomplish this 3 task in a manageable fashion. Spearsfirstrelies on decisions that are factually distinct from this case. She 4 then repackages a plan that the Court has previously rejected. 5 To begin with, this Court has already mled that "as an express policy matter, HNCA provided 6 employees with a 30-minute meal period before their fifth hour of work, and employees who missed meal 7 periods received appropriate penalties." RA 439 at 4. The Court then held that Plaintiffs meal period 8 theory was based on a "lack of enforced policies." Id. at 5. Thus, and as this Court has already mled, 9 Spears' meal period claim is not based on any companywide policy, an important distinction when 10 considering the authorities upon which Spears relies. Begin with Carrington v. Starbucks Corp., 30 Cal. 11 App. 5th 504, 507-08 (2018), upon which Spears leans heavily. 12 In Carrington, the court considered but ultimately rejected the defendant's arguments that the 13 evidence was too individualized to support a representative verdict. It reached this conclusion after finding 14 that "generally applicable corporate policies and procedures resulted in numerous employees with initial 15 or total shifts slightly in excess of five hours not being provided with timely meal breaks and not being 16 paid meal period premiums, in violation of the law." Id. at 526 (emphasis added). The court therefore 17 distinguished Carrington's theory from those of other cases "where plainfiffs PAGA claim failed because 18 the evidence showed defendant's practices 'were not sufficiently uniform to allow representafive 19 freatment.'" Id. (quoting South Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861, 20 897(1999)).^ 21 Spears also relies upon Heredia v. Eddie Bauer LLC, 2020 WL 1492710, at =^=4 (N.D. Cal. Mar. 27, 22 2020). There the court concluded that plaintiff had "presented a fairly manageable trial plan" in a case 23 alleging that defendant forced its employees to work off the clock while undergoing security inspections 24 when leaving work. M,at'''l,*5. Once again, however,/feret/Zfl bears no resemblance to this case because 25 in Heredia, it was undisputed that the defendant had a formal, written policy requiring "all associates [to] 26 , ' Carrington's citation to South Bay Chevrolet is particularly noteworthy. Recall that South Bay Chevrolet is one of several 27 Califomia Court of Appeal cases holding that representative actions must be manageable in order to proceed to trial. Carrington''s reliance on South Bay Chevrolet in the context of PAGA claims makes clear that these cases live and breathe: 2g where PAGA claims are unmanageable. South Bay Chevrolet and other cases dictate that they may not proceed. REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 have their handbags, packages, briefcases, backpacks and other parcels, inspected by a member of store 2 management whenever they leave the store." Long Decl. Tf 4, Ex. C, at 2. No such singular policy exists 3 here. Rather than being able to prove PAGA claims based on a uniform policy, as was the case in Heredia 4 and Carrington, Spears can only prove her claims through individualized, fact-specific adjudications. 5 The evidence supports this conclusion as well. As Plaintiffs noted in their motion for class 6 certification, some employees "reported workloads requiring them to work through meal periods[.]" RA 7 307 at 4. Others "report[ed] extreme management pressure to claim a compliant meal period occurred[.]" 8 Id. These alleged violations, even if true, have nothing to do with any corporate policy identified by 9 Spears.'" The reasons are necessarily tied to each individual employee's relationship with his or her 10 supervisor and/or how much work they were assigned on a particular day.'' These distinctions are covered 11 at length in HNCA's Compendium of Evidence filed in support of its prior motions. See RA 317, 324. 12 Spears' Miscalculation, Off-the-Clock, and EMPCenter PAGA Claims are similarly unmanageable. 13 There are complex evidentiary issues inherent in each of the five payments at issue in the Miscalculation 14 Claim. There are a myriad of individualized factual disputes involved in resolving Spears' two off-the- 15 clock related PAGA Claims, as evidenced by the Court having declined to certify them in the first instance. 16 Proving up each of them will consume substantial court time, time which is unaccounted for in Spears' 17 proposed trial plan. 18 Rather than dealing with the evidence in this case and explaining why her PAGA claims are not 19 hopelessly individualized. Spears generically responds that with time and payroll data, she can "calculate 20 damages and penalties owed to the entire class[.]" Spears Opp. at 11. This argument misses the point (by 21 not addressing liability) and fares no better than when Plaintiffsfriedit before. The Court will recall that 22 in support of their class certification motion. Plaintiffs submitted a declaration from a different "expert" 23 24 '° See footnote 4 supra (Plaintiffs have stated that their putative class claims are co-extensive with their PAGA claims). '' Spears' testimony illustrates this point well. As noted already. Spears' attributed her missed meal breaks to "work that was 25 provided to [her]." Long Decl. \ 2, Ex. A at 133:5-7. But when asked who told her that she was required to fmish her work before taking her meal break, she stated that she could not recall. Id. at 133:8-10. She further noted that because there were 25 "other [supervisors] and leads" at the office, she could not be sure whether the directive came from her supervisor or fi-om someone else. Id. at 133:14—21. From this testimony, it is plain that in Spears' opinion, to the extent employees did not take 27 on-time meal periods, there is no single reason why. Some may have misunderstood the company's policy; others may have been misinformed by their supervisors; and still others may have skipped meal periods of their own volition, in which case no 2g violation occurred. As Spears' deposition demonstrates, the only way to disringuish onefi"omanother is to ask each employee individually. REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTAnVE PAGA CLAIMS 1 and tried to convince this Court that they could prove liability based on records alone. See RA 310. The 2 Court correctly rejected that argument (and evidence) because the Court understood that records do not 3 and cannot tell the whole story. So, for example, records cannot explain why an employee took a short or 4 late meal break, or decided to work through a meal break. To learn the why, and to determine whether 5 there has been a meal break violation, one has to ask the employee. See RA 439 at 5 ("Given the paucity 6 of evidence, and HNCA's undisputed break policy. Plaintiffs claims would depend upon individualized 7 investigations of each class member's personal experiences and practices in taking meal break periods or 8 understandings as to their available options or remedies in the event of a missed or intermpted break 9 period."). Spears' latest effort to overcome this obvious challenge to proving her PAGA claims should 10 fare no better now. Just as before, the new "expert" does not testify that records alone prove violations. If 11 anything, the declaration submitted by this new "expert" only confirms that thousands of individualized 12 inquiries will be needed to resolve just one (meal break) of her four PAGA claims. Spears Opp. at 10:7- 13 11. 14 HL CONCLUSION 15 For all of these reasons, as well as those set forth in the papers HNCA originally filed in support of 16 its motion, which HNCA has incorporated by reference, the Court should grant HNCA's motion to strike. 17 18 DATED: May 1,2020 GREENBERG TRAURIG, LLP 19 20 By TIMOTHY J. LONG 21 ROWENA SANTOS SAMUEL S. HYDE 22 Attomeys for Defendant 23 HEALTH NET OF CALIFORNLA, mC. 24 25 26 27 28 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 1 Andrea Spears, et al. vs. Health Net of Califomia, Inc. Sacramento County Superior Court Case No. 34-2017-00210560 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am employed in the County of Sacramento, State ofCalifomia and my business address is Greenberg Traurig, LLP, i201 K Street, Suite 1100, Sacramento, CA 95814. 5 On this day, I caused to be served the following document(s): 6 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC.'S MOTION 7 TO STRIKE ANDREA SPEARS' REPRESENTATIVE PAGA CLAIMS 8 By placing Q the original ^ a true copy into sealed envelopes addressed and served as follows: 9 Norman Blumenthal 10 Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears Piya Mukherjee 11 Victoria B. Rivapalacio BLUMENTHAL, NORDREHAUG & 12 BHOWMIK LLP 2255 Calle Clara 13 La Jolla, CA 92037 Email: norm@bamlawca.com 14 Telephone: (858)551-1223 Facsimile: (858) 551-1232 15 Shaun Setareh 16 William Pao Attorneys for Plaintiff Tomas R. Arana Alex Mcintosh 17 SETAREH LAW GROUP 315 S. Beverly Drive, Suite 315 18 Beverly Hills, CA 90212 Email: shaun(a),setarehlaw.com 19 william(a),setarehlaw.com alex(S),setarehlaw.com 20 Telephone: (310)888-7771 Facsimile: (310)888-0109 21 3 BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy 22 thereof attached to the elecfronic email address(es) as set forth above. 23 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is tme and correct. 24 Executed on October 6, 2020, at Sacramento, Califomia. 25 26 Marlene Celis 27 28 PROOF OF SERVICE