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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
iihorton@orrick.com
3 AVALON J. FITZGERALD (STATE BAR NO. 2881^7)
afitzgerald@orrick.com
4 ORRICK, HERRINGTON & SUTCLIFFE LLP FEB 1 5 2019
400 Capitol Mall, Suite 3000
5 Sacramento, CA 95814-4497 By: -M. Rubalnaha
Telephone: +1 916 447 8299 Deputy Clerk
6 Facsimile: +1 916 329 4900
7 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
12 similarly situated.
Plaintiff,
13 DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S WRITTEN
14 OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION
HEALTH NET OF CALIFORNL\, INC., a FOR CLASS CERTIFICATION
15 Califomia Corporation; and Does 1 through
50, inclusive. Date: April 11, 2019
16 Time: 10:00 a.m.
Defendants. Dept: 35
17 Judge: Hon. Alan G. Perkins
18 Complaint Filed: April 5, 2017
FAC Filed: June 29, 2017
19
20 TOMAS R. ARANA, on behalf of himself, all
Complaint Filed: August 1, 2017
others similarly situated,
Consolidated Complaint Filed: Dec. 21, 2017
21
Plaintiff,
22
V.
23
HEALTH NET OF CALIFORNL^, INC., a
24 Califomia corporation; and DOES 1-50,
inclusive.
25
Defendant.
26
27
28
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
' ;Vcl
1 Plaintiff Tomas Arana's motion for class certification is based, in part, on a completely
2 unfounded and unsupportable conclusion: ''The telephone log-in records and payroll
3 timekeeping records confirm unequivocally that off-the-clock work occurred." Mot. 3:8-9
4 (emphasis in original). In support of this conclusion, Arana cites to the expert opinion of James
5 Toney, a former business executive with a background infinanceand accounting. Yet Mr. Toney
6 confirmed during his deposition that he did not give opinions that would support this statement.
7 Decl. of Timothy J. Long ISO Oppo. to Class Cert. Mot., H 7, Ex. F at 70:25-74:7. hi fact, he
8 was not retained to do so. He unequivocally testified that he was not asked to assess whether any
9 work actually occurred, did not opine as to whether any off-the-clock work actually occurred, and
10 was not provided information necessary to render such an opinion.
11 Q. But as you sit here today, you've confirmed that you were
not asked to confirm one way or the other whether off-the-clock
12 work actually occurred; correct?
13 A. Correct.
14 Q. You were simply comparing numbers?
15 A. Yes.
16 Q. And your opinion is solely limited to what the numbers
show?
17
A. Correct.
18
Q. It does not extend to whether any work was actually being
19 performed; correct?
20 A. Correct.
21 Q. You don't even have data to assess whether work was being
performed; correct?
22
A. Correct.
23
Q. Would whether work was actually being performed even be
24 within your area of expertise?
25 A. I have not ~ I mean the project I was given was a analysis
of clock data, so I have not been involved in any kind of activity as
26 far as what was or was not being done.
27
28 Id. at 72:10-73:6; see also id. 10:1-11:6. In facL Mr. Toney testified that he lacked the expertise
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DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 to opine on whether work was being performed:
2 Q. And would it be fair to say that the area of your expertise is
^ limited to comparing numbers based on certain assumptions?
A. The data analysis, right, as far as the activity of taking those
4 data sets based on those assumptions and what those ~ the results
^ from that, yes.
6 M a t 73: 19-25.
7 Even beyond these glaring issues and assuming that Mr. Toney's analysis in was in some
8 way significant to the issue of whether putative class members worked off the clock, Mr. Toney's
9 analysis must nonetheless be disregarded because it suffers from several critical flaws. Indeed,
10 his own testimony makes clear that he based his analysis on several imfounded assumptions that
11 skewed his results.
12 First, he assumed that the timekeeping entries were rounded to the minute, despite
13 admitting he had no understanding of how the timekeeping systems worked. Long Decl. T| 7,
14 Ex. F at 30:25-31:12, 37:15-38:6, 38:16-39:15, 43:5-8 (Q: "Do you have any understanding
15 what Health Net's timekeeping or phone systems were, what system's actually used? A: No.").
16 Based on this guess, he then speculated that the system would round time entries a certain way
17 and adopted a method of rounding time as part of his analysis. Id. 30:25-32:24, 34:23-35:8,
18 41:16-23, 49:18-25. This rounding method is nothing more than conjecture.
19 Second, he artificially limited the records he included in his analysis by chopping off
20 records falling outside of certain arbitrary parameters he established. Long Decl. TI 7, Ex. F
21 at 45:19-22. Again, neither his experience nor the facts provided to him gave him a basis for
22 selecting these parameters. Instead, he guessed that enhies outside of these parameters would be
23 due to some unknown system related error. Id. 47:13-21, 50:22-51:5, 54:25-57:1. By removing
24 records from his analysis, he artificially skewed all of his results. See, e.g., id. 54:6-16.
25 Third, despite being provided three sets of phone system data, Long Decl. \ 9, he had no
26 explanation for why he limited his analysis to only one phone system, id. ^ 7, Ex. F at 12:4-23,
27 29:5-18; Decl. of James Toney ISO Plaintiffs' MoL for Class Cert., Dec. 21, 2018, ^ 6. At besL
28 Mr. Toney's analysis, even if admissible, is incomplete.
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DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 For these reasons, and as explained more fiilly below, Mr. Toney's statements lack
2 foundation, are speculative, and are irrelevant, and are thus inadmissible. Apple Inc. v. Superior
3 Court, 19 Cal. App. 5th 1101, 1106-07 (2018), review denied (May 16, 2018); Sargon Enter, v.
4 Univ. ofS. Cal., 55 Cal. 4th 747, 771-72 (2012) (courts must "exclude expert opinion testimony
5 that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on
6 reasons imsupported by the material on which the expert relies, or (3) speculative."); Dep't of
7 Fish & Game v. Superior Court, 197 Cal. App. 4th 1323, 1351 (2012) (an expert's opinions must
8 be "supported by the record. An expert's opinion is no better than the facts upon which it is
9 based. An expert's opinion which rests upon guess, surmise or conjecture, rather than relevanL
10 probative facts, cannot constitute Substantial Evidence.").
11
12 Declaration of James Toney ISO Plaintiffs' Lacks Foundation/Speculative: Mr. Toney
Motion for Class Certification ("Toney has no tmderstanding as to how data is input
13 DecL"), 19, page 2, lines 7-9: "A second into either the timekeeping or telephone
difference noted between the files was that the systems. Decl. of Timothy J. Long ISO Opp.
14 pimch records in HNCA0002632 were to Class Cert. Mot. ^ 7, Ex. 7 ("Toney Dep.
rotmded to the minute compared to the Tr.") 23:12-16. He assumed data was
15 login/logout records which were recorded to rounded based on the way the data looked, id.
the second." 23:17-24:6, without considering that
16 timekeeping entries included manual entries,
id. 24:7-14. Further, Mr. Toney has no
17 experience working with any of the relevant
phone systems. Id. 24:15-24. Mr. Toney
18 admitted that he did not account for manual
time entries in his analysis, that the results of
19 his analysis would change based on how
manual entries were actually used by
20 employees, and that he made no attempt to
determine how manual entries were actually
21 used by employees. Id. 37:5-40:13, 49:18-
50:3.
22
23 See Cal. Evid. Code §§ 702, 801, 803; Apple
Inc. V. Superior Court, 19 Cal. App. 5th 1101,
24 1106-07 (2018), review denied (May 16,
2018); Sargon Enter, v. Univ. ofS. Cal, 55
25 Cal. 4th 747, 771-72 (2012); Dep't of Fish &
Game v. Superior Court, 197 Cal. App. 4th
26 1323, 1351 (2012).
27 Confuses the Issue/Irrelevant: Mr. Toney
was not to opine and did not opine as to
28 whether any employee was actually working
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DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 off the clock, nor was he provided with any
information from which he could render such
2 an opinion, and finally he admits that he is not
qualified to render such an opinion. Toney
3 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
4 See Cal. Evid. Code § 403.
Toney Decl., ^ 9, page 2, lines 9-10: "If no Lacks Foundation/Speculative: Mr. Toney
5 adjustment is made, then there will be records has no understanding as to how data is input
that appear to show that the employee is into either the timekeeping or telephone
6 logged onto the system subsequent to the systems. Toney Dep. Tr. 23:12-16. He
punch out for the shift." assumed data was rotmded based on the way
7 the data looked, id. 23:17-24:6, without
considering that timekeeping entries included
8 manual entries, id. 24:7-14. Further,
Mr. Toney has no experience working with
9 any of the relevant phone systems. Id. 24:15-
24. Mr. Toney admitted that he did not
10 account for manual time entries in his
analysis, that the results of his analysis would
11 change based on how manual entries were
actually used by employees, and that he made
12 no attempt to determine how manual entries
were actually used by employees. Id. 37:5-
13 40:13,49:18-50:3.
14 See Cal. Evid. Code §§ 702, 801, m'i; Apple,
19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
15 4th at 771-72; Dep't of Fish & Game, 197
Cal. App. 4th at 1351.
16
Confuses the Issue/Irrelevant: Mr. Toney
17 was not asked to opine and did not opine as to
whether any employee was actually working
18 off the clock, nor was he provided with any
information from which he could render such
19 an opinion, and finally he admits that he is not
qualified to render such an opinion. Toney
20 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
21 See Cal. Evid. Code § 403.
Toney Decl., ^ 9, page 2, lines 10-15: "The Lacks Foundation/Speculative: Mr. Toney
22 login/logout records were adjusted for the first has no understanding as to how data is input
minute after the shift punch out. Below is an into either the timekeeping or telephone
23 example of the adjustment. systems. Toney Dep. Tr. 23:12-16. He
assumed data was rotmded based on the way
24 (a) If the logout time is 8:00:24 and the data looked, id. 23:17-24:6, without
the ptmch out time is 8:00:00 the considering thattimekeepingentries included
25 unadjusted delta would show that the manual entries, id. 24:7-14. Further,
employee was logged in for 24 second Mr. Toney has no experience working with
26 after the punch out for the day. In this any of the relevant phone systems. Id. 24:15-
27 example the logout time was rounded 24. Mr. Toney admitted that he did not
back to 8:00:00 which results in a time account for manual time entries in his
28 match or no time issue." analysis, that the results of his analysis would
change based on how manual entries were
4154-1017-8330 -5
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 achially used by employees, and that he made
no attempt to determine how manual entries
2 were actually used by employees. Id. 37:5-
40:13,49:18-50:3.
3
See Cal. Evid. Code §§ 702, 801, 803; Apple,
4 19 Cal. App. 5tii at 1106-07; Sargon, 55 Cal.
4th at 771-72; Dep't of Fish & Game, 197
5 Cal.App. 4th at 1351.
6 Confuses the Issue/Irrelevant: Mr. Toney
was not asked to opine and did not opine as to
7 whether any employee was actually working
off the clock, nor was he provided with any
8 information from which he could render such
an opinion, and finally he admits that he is not
9 qualified to render such an opinion. Toney
Dep. Tr. 10:1-22, 70:25-73:25 &. Ex. 2.
10
See CaL Evid. Code § 403.
11 Toney DecL, H 11, page 2, lines 23-25: Lacks Foundation/Speculative: Mr. Toney
"Approximately 72,000 shifts were analyzed has no understanding as to how data is input
12 for time deltas. Records in the sample were into either the timekeeping or telephone
those ranging from a login to the phone systems. Toney Dep. Tr. 23:12-16. He
13 system of not more than one hour prior to the assumed data was rotmded based on the way
shift start and no longer than three hours after the data looked, id. 23:17-24:6, without
14 the shift started." considering that timekeeping entries included
manual entries, id. 24:7-14. Further,
15 Mr. Toney has no experience working with
any of the relevant phone systems. Id. 24:15-
16 24. Accordingly, Mr. Toney had no basis for
limiting his review to shifts that fit within
17 arbifrary parameters he established. Id.
53:12-57:9.
18
See Cal. Evid. Code §§ 702, 801, 803; Apple,
19 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
4th at 771-72; Dep't of Fish & Game, 197
20 Cal. App. 4th at 1351.
21 Confuses the Issue/Irrelevant: Mr. Toney
was not asked to opine and did not opine as to
22 whether any employee was actually working
off the clock, nor was he provided with any
23 information from which he could render such
an opinion, and finally he admits that he is not
24 qualified to render such an opinion. Toney
Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
25
See Cal. Evid. Code § 403.
26
Toney DecL, 1| 11, page 2, lines 25-26: "The Lacks Foundation/Speculative: Mr. Toney
27 number of shifts that show a login prior to the has no understanding as to how data is input
work day start punch are 3,496 or 4.8%." into either the timekeeping or telephone
28 systems. Toney Dep. Tr. 23:12-16. He
assumed data was rotmded based on the way
4154-1017-8330 -6
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
the data looked, id. 23:17-24:6, without
considering that timekeeping entries included
2 manual entries, id. 24:7-14. Further,
Mr. Toney has no experience working with
3 any of the relevant phone systems. Id. 24:15-
24. Accordingly, Mr. Toney had no basis for
4 limiting his review to shifts that fit within
arbitrary parameters he established. Id.
5 53:12-57:9.
6 See Cal. Evid. Code §§ 702, 801, 803; Apple,
19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
7 4th at 771-72; Dep't of Fish & Game, 197
Cal. App. 4th at 1351.
8
Confuses the Issue/Irrelevant: Mr. Toney
9 was not asked to opine and did not opine as to
whether any employee was actually working
10 off the clock, nor was he provided with any
information from which he could render such
11 an opinion, and finally he admits that he is not
qualified to render such an opinion. Toney
12 Dep. Tr. 10:1-22, 70:25-73:25, Dep. Ex. 2.
13 See Cal. Evid. Code § 403.
Toney Decl., If 11, page 2, lines 26-27: Lacks Foundation/Speculative: After using
14 "When the login precedes the time punch, the conjecture to limit the shifts he analyzed,
average number of minutes is 4.9 per shift." Mr. Toney did not look at any employee level
15 data and does not know if there are any
anomalies remaining in the data that are
16 skewing his results. Toney Dep. Tr. 57:24-
58:4, 62:22-63:2.
17
See Cal. Evid. Code §§ 702, 801, 803; Apple,
18 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
4th at 771-72; Dep't of Fish & Game, 197
19 Cal. App. 4th at 1351.
20 Confuses the Issue/Irrelevant: Mr. Toney
was not asked to opine and did not opine as to
21 whether any employee was actually working
off the clock, nor was he provided with any
22 information from which he could render such
an opinion, and finally he admits that he is not
23 qualified to render such an opinion. Toney
Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
24
See Cal. Evid. Code § 403.
25 Toney Decl., f 11, page 2, lines 27-28: "The Lacks Foundation/Speculative: After using
total number of minutes that fall into this conjecture to limit the shifts he analyzed,
26 category for the sample data is 17,187." Mr. Toney did not look at any employee level
data and does not know if there are any
27 anomalies remaining in the data that are
skewing his results. Toney Dep. Tr. 57:24-
28 58:4, 62:22-63:2.
4154-1017-8330 -7-
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1
See Cal. Evid. Code §§ 702, 801, 803; Apple,
2 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
4tii at 771-72; Dep't ofFish & Game, 197
3 Cal.App. 4tiiat 1351.
4 Confuses the Issue/Irrelevant: Mr. Toney
was not asked to opine and did not opine as to
5 whether any employee was actually working
of the clock, nor was he provided with any
6 information from which he could render such
an opinion, and finally he admits that he is not
7 qualified to render such an opinion. Toney
Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
8
See Cal. Evid. Code § 403.
9 Toney DecL, ^12, page 3, lines 1-2: "A total Lacks Foundation/Speculative: Mr. Toney
of approximately 53,300 shifts were reviewed has no understanding as to how data is input
10 for the end of the shift time punches." into either the timekeeping or telephone
systems. Toney Dep. Tr. 23:12-16. He
11 assumed data was rotmded based on the way
the data looked, id. 23:17-24:6, without
12 considering thattimekeepingentries included
manual entries, id. 24:7-14. Further,
13 Mr. Toney has no experience working with
any of the relevant phone systems. Id. 24:15-
14 24. Accordingly, Mr. Toney had no basis for
limiting his review to shifts that fit within
15 arbitrary parameters he established. Id.
53:12-57:9
16
See Cal. Evid. Code §§ 702, 801, 803; Apple,
17 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
4th at 771-72; Dep't of Fish & Game, 197
18 Cal.App. 4th at 1351.
19 Confuses the Issue/Irrelevant: Mr. Toney
was not asked to opine and did not opine as to
20 whether any employee was actually working
off the clock, nor was he provided with any
21 information from which he could render such
an opinion, and finally he admits that he is not
22 qualified to render such an opinion. Toney
Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
23
See Cal. Evid. Code § 403.
24 Toney DecL, ^ 12, page 3, lines 2-3: "There Lacks Foundation/Speculative: After using
25 were approximately 21,700 shifts or 40.7% conjecture to limit the shifts he analyzed,
where there was a log off entry subsequent to Mr. Toney did not look at any employee level
26 the punch out for the work day." data and does not know if there are any
anomalies remaining in the data skewing his
27 results. Toney Dep. Tr. 57:24-58:4, 62:22-
63:2.
28
4154-1017-8330 -8-
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 See Cal. Evid. Code §§ 702, 801, 803; Apple,
19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
2 4th at 771-72; Dep't of Fish & Game, 197
Cal. App. 4th at 1351.
3
Confuses the Issue/Irrelevant: Mr. Toney
4 was not asked to opine and did not opine as to
whether any employee was actually working
5 off the clock, nor was he provided with any
information from which he could render such
6 an opinion, and finally he admits that he is not
qualified to render such an opinion. Toney
7 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
8 See Cal. Evid. Code § 403.
Toney Decl., f 12, page 3, lines 3-4: "When Lacks Foundation/Speculative: After using
9 the logoff was subsequent to punch out for the conjecture to limit the shifts he analyzed,
work day, the average number of minutes is Mr. Toney did not look at any employee level
10 20.7." data and does not know if there are any
anomalies remaining in the data that are
11 skewing his results. Toney Dep. Tr. 57:24-
58:4, 62:22-63:2.
12
See Cal. Evid. Code §§ 702, 801, 803; Apple,
13 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
4th at 771-72; Dep't of Fish & Game, 197
14 CaL App. 4th at 1351.
15 Confuses the Issue/Irrelevant: Mr. Toney's
opinion does not help this court detennine
16 whether common issues of fact predominate.
Mr. Toney did not opine as to whether any
17 employee was actually working off the clock,
was not provided any information from which
18 he could render such an opinion, and is not
qualified to render such an opinion. Toney
19 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
20 See Cal. Evid. Code § 403.
Toney Deck, % 12, page 3, line 4: "The total Lacks FoundationySpeculative: After using
21 number of minutes for the sample is 450,910." conjecture to limit the shifts he analyzed,
Mr. Toney did not look at any employee level
22 data and does not know i f there are any
anomalies remaining in the data that are
23 skewing his results. Toney Dep. Tr. 57:24-
58:4, 62:22-63:2.
24
See Cal. Evid. Code §§ 702, 801, 803; Apple,
25 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal.
4th at 771-72; Dep't of Fish & Game, 197
26 Cal.App. 4th at 1351.
27
Confuses the Issue/Irrelevant: Mr. Toney
was not asked to opine and did not opine as to
28
whether any employee was actually working
4154-1017-8330 9-
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 off the clock, nor was he provided with any
information from which he could render such
2 an opinion, and finally he admits that he is not
qualified to render such an opinion. Toney
3 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2.
4 See Cal. Evid. Code § 403.
5
6
Dated: Febmary 15, 2019 ORRICK, HERRINGTON & SUTCLIFFE LLP
7
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By:
9 TIMOTHY J. LONG
NICHOLAS J. HORTON
10 AVALON J. FITZGERALD
Attomeys for Defendant
11 HEALTH NET OF CALIFORNL\, INC.
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4154-1017-8330 10-
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN
SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) iihorton@orrick.com 3 AVALON J. FITZGERALD (STATE BAR NO. 2881^7) afitzgerald@orrick.com 4 ORRICK, HERRINGTON & SUTCLIFFE LLP FEB 1 5 2019 400 Capitol Mall, Suite 3000 5 Sacramento, CA 95814-4497 By: -M. Rubalnaha Telephone: +1 916 447 8299 Deputy Clerk 6 Facsimile: +1 916 329 4900 7 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 12 similarly situated. Plaintiff, 13 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN 14 OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION HEALTH NET OF CALIFORNL\, INC., a FOR CLASS CERTIFICATION 15 Califomia Corporation; and Does 1 through 50, inclusive. Date: April 11, 2019 16 Time: 10:00 a.m. Defendants. Dept: 35 17 Judge: Hon. Alan G. Perkins 18 Complaint Filed: April 5, 2017 FAC Filed: June 29, 2017 19 20 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017 others similarly situated, Consolidated Complaint Filed: Dec. 21, 2017 21 Plaintiff, 22 V. 23 HEALTH NET OF CALIFORNL^, INC., a 24 Califomia corporation; and DOES 1-50, inclusive. 25 Defendant. 26 27 28 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION ' ;Vcl 1 Plaintiff Tomas Arana's motion for class certification is based, in part, on a completely 2 unfounded and unsupportable conclusion: ''The telephone log-in records and payroll 3 timekeeping records confirm unequivocally that off-the-clock work occurred." Mot. 3:8-9 4 (emphasis in original). In support of this conclusion, Arana cites to the expert opinion of James 5 Toney, a former business executive with a background infinanceand accounting. Yet Mr. Toney 6 confirmed during his deposition that he did not give opinions that would support this statement. 7 Decl. of Timothy J. Long ISO Oppo. to Class Cert. Mot., H 7, Ex. F at 70:25-74:7. hi fact, he 8 was not retained to do so. He unequivocally testified that he was not asked to assess whether any 9 work actually occurred, did not opine as to whether any off-the-clock work actually occurred, and 10 was not provided information necessary to render such an opinion. 11 Q. But as you sit here today, you've confirmed that you were not asked to confirm one way or the other whether off-the-clock 12 work actually occurred; correct? 13 A. Correct. 14 Q. You were simply comparing numbers? 15 A. Yes. 16 Q. And your opinion is solely limited to what the numbers show? 17 A. Correct. 18 Q. It does not extend to whether any work was actually being 19 performed; correct? 20 A. Correct. 21 Q. You don't even have data to assess whether work was being performed; correct? 22 A. Correct. 23 Q. Would whether work was actually being performed even be 24 within your area of expertise? 25 A. I have not ~ I mean the project I was given was a analysis of clock data, so I have not been involved in any kind of activity as 26 far as what was or was not being done. 27 28 Id. at 72:10-73:6; see also id. 10:1-11:6. In facL Mr. Toney testified that he lacked the expertise -2- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 to opine on whether work was being performed: 2 Q. And would it be fair to say that the area of your expertise is ^ limited to comparing numbers based on certain assumptions? A. The data analysis, right, as far as the activity of taking those 4 data sets based on those assumptions and what those ~ the results ^ from that, yes. 6 M a t 73: 19-25. 7 Even beyond these glaring issues and assuming that Mr. Toney's analysis in was in some 8 way significant to the issue of whether putative class members worked off the clock, Mr. Toney's 9 analysis must nonetheless be disregarded because it suffers from several critical flaws. Indeed, 10 his own testimony makes clear that he based his analysis on several imfounded assumptions that 11 skewed his results. 12 First, he assumed that the timekeeping entries were rounded to the minute, despite 13 admitting he had no understanding of how the timekeeping systems worked. Long Decl. T| 7, 14 Ex. F at 30:25-31:12, 37:15-38:6, 38:16-39:15, 43:5-8 (Q: "Do you have any understanding 15 what Health Net's timekeeping or phone systems were, what system's actually used? A: No."). 16 Based on this guess, he then speculated that the system would round time entries a certain way 17 and adopted a method of rounding time as part of his analysis. Id. 30:25-32:24, 34:23-35:8, 18 41:16-23, 49:18-25. This rounding method is nothing more than conjecture. 19 Second, he artificially limited the records he included in his analysis by chopping off 20 records falling outside of certain arbitrary parameters he established. Long Decl. TI 7, Ex. F 21 at 45:19-22. Again, neither his experience nor the facts provided to him gave him a basis for 22 selecting these parameters. Instead, he guessed that enhies outside of these parameters would be 23 due to some unknown system related error. Id. 47:13-21, 50:22-51:5, 54:25-57:1. By removing 24 records from his analysis, he artificially skewed all of his results. See, e.g., id. 54:6-16. 25 Third, despite being provided three sets of phone system data, Long Decl. \ 9, he had no 26 explanation for why he limited his analysis to only one phone system, id. ^ 7, Ex. F at 12:4-23, 27 29:5-18; Decl. of James Toney ISO Plaintiffs' MoL for Class Cert., Dec. 21, 2018, ^ 6. At besL 28 Mr. Toney's analysis, even if admissible, is incomplete. 4154-1017-8330 ~3 - DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 For these reasons, and as explained more fiilly below, Mr. Toney's statements lack 2 foundation, are speculative, and are irrelevant, and are thus inadmissible. Apple Inc. v. Superior 3 Court, 19 Cal. App. 5th 1101, 1106-07 (2018), review denied (May 16, 2018); Sargon Enter, v. 4 Univ. ofS. Cal., 55 Cal. 4th 747, 771-72 (2012) (courts must "exclude expert opinion testimony 5 that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on 6 reasons imsupported by the material on which the expert relies, or (3) speculative."); Dep't of 7 Fish & Game v. Superior Court, 197 Cal. App. 4th 1323, 1351 (2012) (an expert's opinions must 8 be "supported by the record. An expert's opinion is no better than the facts upon which it is 9 based. An expert's opinion which rests upon guess, surmise or conjecture, rather than relevanL 10 probative facts, cannot constitute Substantial Evidence."). 11 12 Declaration of James Toney ISO Plaintiffs' Lacks Foundation/Speculative: Mr. Toney Motion for Class Certification ("Toney has no tmderstanding as to how data is input 13 DecL"), 19, page 2, lines 7-9: "A second into either the timekeeping or telephone difference noted between the files was that the systems. Decl. of Timothy J. Long ISO Opp. 14 pimch records in HNCA0002632 were to Class Cert. Mot. ^ 7, Ex. 7 ("Toney Dep. rotmded to the minute compared to the Tr.") 23:12-16. He assumed data was 15 login/logout records which were recorded to rounded based on the way the data looked, id. the second." 23:17-24:6, without considering that 16 timekeeping entries included manual entries, id. 24:7-14. Further, Mr. Toney has no 17 experience working with any of the relevant phone systems. Id. 24:15-24. Mr. Toney 18 admitted that he did not account for manual time entries in his analysis, that the results of 19 his analysis would change based on how manual entries were actually used by 20 employees, and that he made no attempt to determine how manual entries were actually 21 used by employees. Id. 37:5-40:13, 49:18- 50:3. 22 23 See Cal. Evid. Code §§ 702, 801, 803; Apple Inc. V. Superior Court, 19 Cal. App. 5th 1101, 24 1106-07 (2018), review denied (May 16, 2018); Sargon Enter, v. Univ. ofS. Cal, 55 25 Cal. 4th 747, 771-72 (2012); Dep't of Fish & Game v. Superior Court, 197 Cal. App. 4th 26 1323, 1351 (2012). 27 Confuses the Issue/Irrelevant: Mr. Toney was not to opine and did not opine as to 28 whether any employee was actually working 4154-1017-8330 -4 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 off the clock, nor was he provided with any information from which he could render such 2 an opinion, and finally he admits that he is not qualified to render such an opinion. Toney 3 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 4 See Cal. Evid. Code § 403. Toney Decl., ^ 9, page 2, lines 9-10: "If no Lacks Foundation/Speculative: Mr. Toney 5 adjustment is made, then there will be records has no understanding as to how data is input that appear to show that the employee is into either the timekeeping or telephone 6 logged onto the system subsequent to the systems. Toney Dep. Tr. 23:12-16. He punch out for the shift." assumed data was rotmded based on the way 7 the data looked, id. 23:17-24:6, without considering that timekeeping entries included 8 manual entries, id. 24:7-14. Further, Mr. Toney has no experience working with 9 any of the relevant phone systems. Id. 24:15- 24. Mr. Toney admitted that he did not 10 account for manual time entries in his analysis, that the results of his analysis would 11 change based on how manual entries were actually used by employees, and that he made 12 no attempt to determine how manual entries were actually used by employees. Id. 37:5- 13 40:13,49:18-50:3. 14 See Cal. Evid. Code §§ 702, 801, m'i; Apple, 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 15 4th at 771-72; Dep't of Fish & Game, 197 Cal. App. 4th at 1351. 16 Confuses the Issue/Irrelevant: Mr. Toney 17 was not asked to opine and did not opine as to whether any employee was actually working 18 off the clock, nor was he provided with any information from which he could render such 19 an opinion, and finally he admits that he is not qualified to render such an opinion. Toney 20 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 21 See Cal. Evid. Code § 403. Toney Decl., ^ 9, page 2, lines 10-15: "The Lacks Foundation/Speculative: Mr. Toney 22 login/logout records were adjusted for the first has no understanding as to how data is input minute after the shift punch out. Below is an into either the timekeeping or telephone 23 example of the adjustment. systems. Toney Dep. Tr. 23:12-16. He assumed data was rotmded based on the way 24 (a) If the logout time is 8:00:24 and the data looked, id. 23:17-24:6, without the ptmch out time is 8:00:00 the considering thattimekeepingentries included 25 unadjusted delta would show that the manual entries, id. 24:7-14. Further, employee was logged in for 24 second Mr. Toney has no experience working with 26 after the punch out for the day. In this any of the relevant phone systems. Id. 24:15- 27 example the logout time was rounded 24. Mr. Toney admitted that he did not back to 8:00:00 which results in a time account for manual time entries in his 28 match or no time issue." analysis, that the results of his analysis would change based on how manual entries were 4154-1017-8330 -5 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 achially used by employees, and that he made no attempt to determine how manual entries 2 were actually used by employees. Id. 37:5- 40:13,49:18-50:3. 3 See Cal. Evid. Code §§ 702, 801, 803; Apple, 4 19 Cal. App. 5tii at 1106-07; Sargon, 55 Cal. 4th at 771-72; Dep't of Fish & Game, 197 5 Cal.App. 4th at 1351. 6 Confuses the Issue/Irrelevant: Mr. Toney was not asked to opine and did not opine as to 7 whether any employee was actually working off the clock, nor was he provided with any 8 information from which he could render such an opinion, and finally he admits that he is not 9 qualified to render such an opinion. Toney Dep. Tr. 10:1-22, 70:25-73:25 &. Ex. 2. 10 See CaL Evid. Code § 403. 11 Toney DecL, H 11, page 2, lines 23-25: Lacks Foundation/Speculative: Mr. Toney "Approximately 72,000 shifts were analyzed has no understanding as to how data is input 12 for time deltas. Records in the sample were into either the timekeeping or telephone those ranging from a login to the phone systems. Toney Dep. Tr. 23:12-16. He 13 system of not more than one hour prior to the assumed data was rotmded based on the way shift start and no longer than three hours after the data looked, id. 23:17-24:6, without 14 the shift started." considering that timekeeping entries included manual entries, id. 24:7-14. Further, 15 Mr. Toney has no experience working with any of the relevant phone systems. Id. 24:15- 16 24. Accordingly, Mr. Toney had no basis for limiting his review to shifts that fit within 17 arbifrary parameters he established. Id. 53:12-57:9. 18 See Cal. Evid. Code §§ 702, 801, 803; Apple, 19 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 4th at 771-72; Dep't of Fish & Game, 197 20 Cal. App. 4th at 1351. 21 Confuses the Issue/Irrelevant: Mr. Toney was not asked to opine and did not opine as to 22 whether any employee was actually working off the clock, nor was he provided with any 23 information from which he could render such an opinion, and finally he admits that he is not 24 qualified to render such an opinion. Toney Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 25 See Cal. Evid. Code § 403. 26 Toney DecL, 1| 11, page 2, lines 25-26: "The Lacks Foundation/Speculative: Mr. Toney 27 number of shifts that show a login prior to the has no understanding as to how data is input work day start punch are 3,496 or 4.8%." into either the timekeeping or telephone 28 systems. Toney Dep. Tr. 23:12-16. He assumed data was rotmded based on the way 4154-1017-8330 -6 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION the data looked, id. 23:17-24:6, without considering that timekeeping entries included 2 manual entries, id. 24:7-14. Further, Mr. Toney has no experience working with 3 any of the relevant phone systems. Id. 24:15- 24. Accordingly, Mr. Toney had no basis for 4 limiting his review to shifts that fit within arbitrary parameters he established. Id. 5 53:12-57:9. 6 See Cal. Evid. Code §§ 702, 801, 803; Apple, 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 7 4th at 771-72; Dep't of Fish & Game, 197 Cal. App. 4th at 1351. 8 Confuses the Issue/Irrelevant: Mr. Toney 9 was not asked to opine and did not opine as to whether any employee was actually working 10 off the clock, nor was he provided with any information from which he could render such 11 an opinion, and finally he admits that he is not qualified to render such an opinion. Toney 12 Dep. Tr. 10:1-22, 70:25-73:25, Dep. Ex. 2. 13 See Cal. Evid. Code § 403. Toney Decl., If 11, page 2, lines 26-27: Lacks Foundation/Speculative: After using 14 "When the login precedes the time punch, the conjecture to limit the shifts he analyzed, average number of minutes is 4.9 per shift." Mr. Toney did not look at any employee level 15 data and does not know if there are any anomalies remaining in the data that are 16 skewing his results. Toney Dep. Tr. 57:24- 58:4, 62:22-63:2. 17 See Cal. Evid. Code §§ 702, 801, 803; Apple, 18 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 4th at 771-72; Dep't of Fish & Game, 197 19 Cal. App. 4th at 1351. 20 Confuses the Issue/Irrelevant: Mr. Toney was not asked to opine and did not opine as to 21 whether any employee was actually working off the clock, nor was he provided with any 22 information from which he could render such an opinion, and finally he admits that he is not 23 qualified to render such an opinion. Toney Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 24 See Cal. Evid. Code § 403. 25 Toney Decl., f 11, page 2, lines 27-28: "The Lacks Foundation/Speculative: After using total number of minutes that fall into this conjecture to limit the shifts he analyzed, 26 category for the sample data is 17,187." Mr. Toney did not look at any employee level data and does not know if there are any 27 anomalies remaining in the data that are skewing his results. Toney Dep. Tr. 57:24- 28 58:4, 62:22-63:2. 4154-1017-8330 -7- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 See Cal. Evid. Code §§ 702, 801, 803; Apple, 2 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 4tii at 771-72; Dep't ofFish & Game, 197 3 Cal.App. 4tiiat 1351. 4 Confuses the Issue/Irrelevant: Mr. Toney was not asked to opine and did not opine as to 5 whether any employee was actually working of the clock, nor was he provided with any 6 information from which he could render such an opinion, and finally he admits that he is not 7 qualified to render such an opinion. Toney Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 8 See Cal. Evid. Code § 403. 9 Toney DecL, ^12, page 3, lines 1-2: "A total Lacks Foundation/Speculative: Mr. Toney of approximately 53,300 shifts were reviewed has no understanding as to how data is input 10 for the end of the shift time punches." into either the timekeeping or telephone systems. Toney Dep. Tr. 23:12-16. He 11 assumed data was rotmded based on the way the data looked, id. 23:17-24:6, without 12 considering thattimekeepingentries included manual entries, id. 24:7-14. Further, 13 Mr. Toney has no experience working with any of the relevant phone systems. Id. 24:15- 14 24. Accordingly, Mr. Toney had no basis for limiting his review to shifts that fit within 15 arbitrary parameters he established. Id. 53:12-57:9 16 See Cal. Evid. Code §§ 702, 801, 803; Apple, 17 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 4th at 771-72; Dep't of Fish & Game, 197 18 Cal.App. 4th at 1351. 19 Confuses the Issue/Irrelevant: Mr. Toney was not asked to opine and did not opine as to 20 whether any employee was actually working off the clock, nor was he provided with any 21 information from which he could render such an opinion, and finally he admits that he is not 22 qualified to render such an opinion. Toney Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 23 See Cal. Evid. Code § 403. 24 Toney DecL, ^ 12, page 3, lines 2-3: "There Lacks Foundation/Speculative: After using 25 were approximately 21,700 shifts or 40.7% conjecture to limit the shifts he analyzed, where there was a log off entry subsequent to Mr. Toney did not look at any employee level 26 the punch out for the work day." data and does not know if there are any anomalies remaining in the data skewing his 27 results. Toney Dep. Tr. 57:24-58:4, 62:22- 63:2. 28 4154-1017-8330 -8- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 See Cal. Evid. Code §§ 702, 801, 803; Apple, 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 2 4th at 771-72; Dep't of Fish & Game, 197 Cal. App. 4th at 1351. 3 Confuses the Issue/Irrelevant: Mr. Toney 4 was not asked to opine and did not opine as to whether any employee was actually working 5 off the clock, nor was he provided with any information from which he could render such 6 an opinion, and finally he admits that he is not qualified to render such an opinion. Toney 7 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 8 See Cal. Evid. Code § 403. Toney Decl., f 12, page 3, lines 3-4: "When Lacks Foundation/Speculative: After using 9 the logoff was subsequent to punch out for the conjecture to limit the shifts he analyzed, work day, the average number of minutes is Mr. Toney did not look at any employee level 10 20.7." data and does not know if there are any anomalies remaining in the data that are 11 skewing his results. Toney Dep. Tr. 57:24- 58:4, 62:22-63:2. 12 See Cal. Evid. Code §§ 702, 801, 803; Apple, 13 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 4th at 771-72; Dep't of Fish & Game, 197 14 CaL App. 4th at 1351. 15 Confuses the Issue/Irrelevant: Mr. Toney's opinion does not help this court detennine 16 whether common issues of fact predominate. Mr. Toney did not opine as to whether any 17 employee was actually working off the clock, was not provided any information from which 18 he could render such an opinion, and is not qualified to render such an opinion. Toney 19 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 20 See Cal. Evid. Code § 403. Toney Deck, % 12, page 3, line 4: "The total Lacks FoundationySpeculative: After using 21 number of minutes for the sample is 450,910." conjecture to limit the shifts he analyzed, Mr. Toney did not look at any employee level 22 data and does not know i f there are any anomalies remaining in the data that are 23 skewing his results. Toney Dep. Tr. 57:24- 58:4, 62:22-63:2. 24 See Cal. Evid. Code §§ 702, 801, 803; Apple, 25 19 Cal. App. 5th at 1106-07; Sargon, 55 Cal. 4th at 771-72; Dep't of Fish & Game, 197 26 Cal.App. 4th at 1351. 27 Confuses the Issue/Irrelevant: Mr. Toney was not asked to opine and did not opine as to 28 whether any employee was actually working 4154-1017-8330 9- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 off the clock, nor was he provided with any information from which he could render such 2 an opinion, and finally he admits that he is not qualified to render such an opinion. Toney 3 Dep. Tr. 10:1-22, 70:25-73:25 & Ex. 2. 4 See Cal. Evid. Code § 403. 5 6 Dated: Febmary 15, 2019 ORRICK, HERRINGTON & SUTCLIFFE LLP 7 8 By: 9 TIMOTHY J. LONG NICHOLAS J. HORTON 10 AVALON J. FITZGERALD Attomeys for Defendant 11 HEALTH NET OF CALIFORNL\, INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4154-1017-8330 10- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S WRITTEN OBJECTIONS TO EVIDENCE IN SUPPORT OF PLAINTIFFS' MOTION FOR CLASS CERTIFICATION