Preview
1 Shaun Setareh (SBN 204514)
shaun@setarehlaw.com
2 William M. Pao (SBN 219846) FILED/ENDORSED
william@setarehlaw.com
3 Alexandra R McLitosh (SBN 320904) SEP 1 6 2019
alex@setarehlaw.com
4 SETAREH LAW GROUP By:. A. Turner
315 South Beverly Drive, Suite 315 Deputy Clerk
5 Beverly Hills. Cahfomia 90212
Telephone (310) 888-7771
6 Facsimile (310) 888-0109
7 Attomeys for PlaintifiF
TOMAS R. ARANA
g
9 SUPERIOR COURT OF THE STATE OF CALIFORNL\
10 FOR THE COUNTY OF SACRAMENTO
11 UNLIMITED JURISDICTION
12
13 ANDREA SPEARS, an individual, on behalfof CaseNo. 34-2017-00210560-CU-OE-GDS
herself and behalf of all persons similarly
14 situated. Assigned For All Purposes To The Honorable
Alan A. Perkins, Department 35
15 Plaintiff,
PLAINTIFF'S OPPOSITION TO
16 DEFENDANT HEALTH NET OF
vs.
CALIFORNIA'S BRIEF AS TO WHY NO
17 HEALTH NET OF CALIFORNIA. INC., a DERIVATIVE CLAIMS SHOULD BE
Califomia corporation; and DOES 1 through 50, PERMITTED FOR ALLEGED
18 inclusive, VIOLATIONS OF LABOR CODE SECTION
226
19 Defendants. BY FAX
20
21 TOMAS R. ARANA, on behalf of himself, all
others similarly situated.
22
Plaintiff,
23
24 vs.
25 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 through 50,
26 inclusive.
27 Defendants.
28
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO
DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
1 I. INTRODUCTION
2 Defendant HEALTH NET OF CALIFORNIA, INC. ("Health Net") erringly contendstiiatdie
3 decision in Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308 (2018) ushered in a new era of
4 Califomia wage-and-hour jurisprudence that forcvcrmorc extinguishes derivative claims under Labor
5 Code section 226. Health Net is not only mistaken, but its reliance on Maldonado undermines its own
6 argument. As Maldonado makes all too clear: "But where there is a wage and hour violation, the hours
7 worked will differfromwhat was tmly eamed. But onfy the absence of the hours worked will give rise
8 to an inference of injury; the absence of accurate wages eamed will be remedied by the violated wage
9 and hour law itself, as is the case here." Id. at 1336-1337.
10 Here, Health Net provided non-compliant wage statements that did not include all of the "total
11 hours worked" by putative class members. This Court granted PlaintifiPs motion and certified a class of
12 employees whose hours worked were not properly captured at thetimeof clocking in. For these
13 putative class members, not only were they not paid for aU hour worked, but their wage statements
14 failed to properly account for the "total hours worked." Under Labor Code section 226(e)(2)(B)(i), a
15 presumption of injury occurs when there is a failure to accurately report "total hours work«i."
16 For the reasons set forth below, Maldonado is applicable but not for the reasons relied upon by
17 Health Net, rather this Court should conclude that Plaintiffs derivative wage statement claims may
18 proceed with respect to the certified class because, as held in Maldonado, there is an absence of the
19 hours worked on Plaintiffs paycheck stubs which givesriseto an inference of injury,
20 n. FACTUAL AND PROCEDURAL HISTORY
21 On May 11,2017, Plaintifffileda putative wage-and-hour class action alleging six causes of
22 action for: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Breaks; (3) Failure to Pay
23 Hourly Wages; (4) Failtffe to Provide Accurate Written Wage Statements; (5) Failure to Timely Pay All
24 Final Wages; and (6) Unfair Competition. On October 3,2017, PlaintifiFfileda First Amended
25 Complaint allying an additional cause of action for civil {lenalties pursuant to the Califomia Labor
26 Code Private Attomeys General Act of2004 (Lab. Code §§ 2698 et seq)
27 On December 21,2018, Plaintifffileda motion for class certification on the five wage-and-hour '
28 claims. On August 29,2019, and after the motion was fully briefed by the parties, this Court issued a
1
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO
DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
1 tentative mling denying Plaintiff Arana's motion except for the claim involving off-the-clock woik as it
2 relates to the clocking in process (the "Clock-In-Claim"). (Aug. 30,2019 Tent. Ruling., p. 6.)
3 Subsequentiy, at die hearing on August 30,2019, this Court affirmed the tentative ruling and also
4 indicated that it would consider whether Plaintiff Arana's derivative wage statements claim could
5 proceed given that it would certify the Clock-In-Claim. The parties were permitted to file further
6 briefing on this limited issue.
7 The operative complaint alleges that PlaintifiF and putative class members were required to clock
8 in for their shifts using their work personal computers. To do so, they had to boot up the computers at
9 the beginning of each shift, wait it for to load, log in to the network, start up the program that would
10 record their work hours, and lastiy enter their credentials to actuaUy clock in. (FAC, ^ 20-25.) Based
11 on this process of clocking in. Plaintiff and putative class members were under the direction and control
12 of Health Net and should have been paid for the time spent clocking in, which they were not.
13 in. ARGUMENT
14 A. MALDONADO v. EPSILON PLASTICS, INC. DOES NOT EXTINGUISH
15 DERIVATE CLAIMS UNDER LABOR CODE SECTION 226
16 Health Net's reliance on Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308,1312
17 (2018) does not extricate it from liability in this case. In fact, it only solidifies it because, as the Court of
18 Appeal pointed out, which is directiy applicable to this case, that "But only the absence of the hours
19 worked will giveriseto an inference of injury; the absence of accurate wages earned will be remedied
20 by the violated wage and hour law itself, as is the case here." Id. at 1337.
21 In contrast, categories (a)(2) and (a)(9) refer to the "total hours worked," and
"number of hours worked at each hourly rate." These categories are included
22 in subdivision (e)(2)(B)(i) - if they are excludedfromthe wage statement,
injuiy may be presumed."
23
24 Id. In Maldonado, the employer improperly adopted a ten-hour alternative workweek schedule, that
25 resulted in the ninth and tenth hours not being properly designated as overtime hours. Id at 1334. The
26: consequence of the improperly designated hours resulted in not only the underpayment of overtime
27 wages but also wage statements that did not reflect the tme eamings of each employee. Given that the
28 wage statements, in tum, "did not properly indicate that the ninth and tenth hours were overtime," the
2
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO
DERIVATFVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
1 trial court awarded penalties for inaccurate wage statements under Labor Code section 226 of the Labor
2 Code - in addition to unpaid overtime, interest, waiting time penalties, and attorneys' fees. Id. at 1312,
3 1334.
4 In reversing the trial court, the Court of Appeals explained that "[w]age statement penalties are
5 awarded only to employees who suffer injuiy 'as a result of a knowing and intentional failure by an
6 employer to comply with subdivision (a)." Id. at 1335. However, "an employee is deemed to sufFer
7 injuiy if the employer 'fails to provide accurate and complete information as required by any one or
8 more of items (1) to (9) inclusive, of subdivision (a) and the employee cannot promptiy and easily
9 determinefromthe wage statement alone one or more of the following: (i) the amount of gross wages or
10 net wages paid to the employee during the pay period or any ofthe other information required to be
11 provided on the itemized wage stalement pursuant to items (2) to (4) inclusive, (6) and (9) of
12 subdivision (a)." Id at 1335; Lab. Code § 226 (e)(2)(B) and (e)(2)(B)(i). In otiier words, while tiie
13 statute requires nine categories of information to be include in a wage statement, injury is only presumed
14 if one of five specific categories [total hours worked, number of piece-rate units eamed, all deductions,
15 mclusive dates of the pay period, and all applicable hourly rates] is omitted, and, even then, only if a
16 reasonable person would be unable to readily ascertain the missing infonnation without reference to
17 other documents or information. Id.
18 The Court of Appeals was careful to point out that the statutory language in subdivision (a) uses
19 both die term "eamed" and the term "worked." That is, categories (aXl) and (a)(5) require the employer
20 to provide infonnation regarding the "gross wages earned' and "net wages eamed" respectively, but
21 these two categories are excluded ftom subdivision (e)(2)(B)(i)'s list of those categories Avhose omission
22 gives rise to a presumption of injury. Id. at 1336. In contract, categories (a)(2) and (a)(9) refer to the
23 "total hours worked," and "number of hoiu^ worked at each hourly rate." "These categories are
24 included in subdivision (e)(2XB)(i) - if they are excludedfromthe wage statement, mjuiy may be
25 presumed.
26 Therefore, it is not surprising that the Court of Appeals reversed the trial court with respect to
27 the derivative wage statement claims. After all, the wage statements provided by Epsilon accurately
28 reported the "total hours worked," it just did not apply the coirect rate of pay for those hours "which
3
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO
DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
1 mandates that the employees receive unpaid overtime, interest, and attomeys' fees. It does not mandate
2 that they also receive penalties for the wage statements which accurately reflected their compensation
3 imder the rates at which they had worked at the time." Id. at 1337 (citations omitted.).
4 B. THERE IS A PRESUMPTION OF INJURY UNDER LABOR CODE SECTION
5 226 WHEN WAGE STATEMENTS DO NOT INCLUDE ALL HOURS
6 WORKED
7 As explained above, there is a presumption of injuiy when wage statements fail to capture all of
8 the hours worked by an employee. Id.; Lab. Code § 226(e)(2)(B)(i). In this action, and unlike
9 Maldonado where the wage statements did report the "total hours worked" by each class member.
10 Health Net failed to provide wage statements that correctly accoimted for the "total hours worked" by
11 Plaintiff and putative class members. Health Net even concedes in their brief that the failure to include
12 "hours worked" will giveriseto a presumption of injuiy. HNCA Brief, at 4:16-24. This Court certified
13 a "Clock In Claim" that includes putative class members whose start times were not accurately captured
14 by Health Net'stimekeepingsystem which, in tum, resulted in class members not being paid for all
15 wages. These putative class members would have received wage statements that did not include the
16 "total hours worked" during each shift.
17 Based on the above, and contrai>' to Health Net's assertion, this case is certainly not analogous
18 to Maldonado. Moreover, not only is Plaintiff not required to "estabUsh injuryflowingfiom the
19 inaccuracy," but the failure to provide "total hours worked" in Plaintiffs and the putative class' wage
20 statements falls within the category of information whose absence pemuts the presumption of injxuy.
21 Lab. Code § 226(a)(2) to (4), (6), and (9); Maldonado, supra, 22 Cal. App. 5tii at 1312,1334.
22 ///
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
4
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO
DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
IV. CONCLUSION
2 Here, because the "Clock In Claim" certified by this Court involves off-the-clock woric for
3 which Health Net failed to properly report the "total hours worked" by putative class members, there is a
4 presumption ofinjury under Labor Code section 226. Id. Health Net's reliance on A/a/c^^onatsfo is
5 misplaced because "only the absence of the hours worked will giveriseto an inference of injuiy; the
6 absence of accurate wages earned wUl be remedied by the violated wage and hour law itself, as is the
7 case here."/(i at 1337.
8
9 DATED: September 13,2019 SETAREH LAW GROUP
^ "
10
11
SHAUN SETAREH
12 WILLIAM M. PAO
ALEXANDRA R. MCINTOSH
13 Attomeys for PlaintifiF
TOMAS R. ARANA
14
15
16
17
18
19
20
21
22
23
24
25
26
21'
28
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO
DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
PROOF OF SERVICE
I am a citi2:en of the United States and am employed in the County of Los Angeles, State
of Califomia. I am over the age of 18 and not a party to the within action. My business address
is 315 Soutii Beverly Drive, Suite 315 Beverly Hills, CA 90212.
On September 13, 2019,1 served the foregoing documents described as:
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNLA'S
BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR
ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
8 in this action by transmitting a tme copy thereof enclosed in a sealed envelope addressed as
ffollows
ollows!
9
Norma B. Bliimenthal, Esq.
10 Timothy J. Long Esq. Victoria B. Rivapalacio
Greenberg Traurig, LLP Blumenthal, Nordrehaug, & Bhowmik
11 1201 K. Street, Suite 1100 2255 Calle Clara
Sacramento, CA 95814 LaJoUa, CA 92037
12
Email: Email: victoria@bamlawca.com
13 COUNSEL FOR DEFENDANT HEALTH Email: norm@bamlaca.com
NET, INC. COUNSEL FOR PLAINTIFF ANDREA
14 SPEARS.
15
[X] BY MAIL
16
I am readily familiar with the practice of Setareh Law Group for the collection and
17 processing of correspondence for mailing with the United States Postal Service. It is the
practice that correspondence is deposited with United States Postal Service the same day it is
18 submitted for mailing with postage thereon fully prepaid at Beverly Hills, Califomia. I am
19 aware that on motion of the party served, service is presumed invalid if postal cancellation date
or postage meter date is more than one day after date of deposit for mailing in affidavit.
20
[X] STATE
21
22
I declare under penalty of perjury under the laws of the State of Califomia that the above
is tme and correct.
23
24
Executed on September 13, 2019, at Beverly Hills, Cahfornia,
25
26
27
28
PROOFOF SERVICE
Preview
1 Shaun Setareh (SBN 204514) shaun@setarehlaw.com 2 William M. Pao (SBN 219846) FILED/ENDORSED william@setarehlaw.com 3 Alexandra R McLitosh (SBN 320904) SEP 1 6 2019 alex@setarehlaw.com 4 SETAREH LAW GROUP By:. A. Turner 315 South Beverly Drive, Suite 315 Deputy Clerk 5 Beverly Hills. Cahfomia 90212 Telephone (310) 888-7771 6 Facsimile (310) 888-0109 7 Attomeys for PlaintifiF TOMAS R. ARANA g 9 SUPERIOR COURT OF THE STATE OF CALIFORNL\ 10 FOR THE COUNTY OF SACRAMENTO 11 UNLIMITED JURISDICTION 12 13 ANDREA SPEARS, an individual, on behalfof CaseNo. 34-2017-00210560-CU-OE-GDS herself and behalf of all persons similarly 14 situated. Assigned For All Purposes To The Honorable Alan A. Perkins, Department 35 15 Plaintiff, PLAINTIFF'S OPPOSITION TO 16 DEFENDANT HEALTH NET OF vs. CALIFORNIA'S BRIEF AS TO WHY NO 17 HEALTH NET OF CALIFORNIA. INC., a DERIVATIVE CLAIMS SHOULD BE Califomia corporation; and DOES 1 through 50, PERMITTED FOR ALLEGED 18 inclusive, VIOLATIONS OF LABOR CODE SECTION 226 19 Defendants. BY FAX 20 21 TOMAS R. ARANA, on behalf of himself, all others similarly situated. 22 Plaintiff, 23 24 vs. 25 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 through 50, 26 inclusive. 27 Defendants. 28 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 1 I. INTRODUCTION 2 Defendant HEALTH NET OF CALIFORNIA, INC. ("Health Net") erringly contendstiiatdie 3 decision in Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308 (2018) ushered in a new era of 4 Califomia wage-and-hour jurisprudence that forcvcrmorc extinguishes derivative claims under Labor 5 Code section 226. Health Net is not only mistaken, but its reliance on Maldonado undermines its own 6 argument. As Maldonado makes all too clear: "But where there is a wage and hour violation, the hours 7 worked will differfromwhat was tmly eamed. But onfy the absence of the hours worked will give rise 8 to an inference of injury; the absence of accurate wages eamed will be remedied by the violated wage 9 and hour law itself, as is the case here." Id. at 1336-1337. 10 Here, Health Net provided non-compliant wage statements that did not include all of the "total 11 hours worked" by putative class members. This Court granted PlaintifiPs motion and certified a class of 12 employees whose hours worked were not properly captured at thetimeof clocking in. For these 13 putative class members, not only were they not paid for aU hour worked, but their wage statements 14 failed to properly account for the "total hours worked." Under Labor Code section 226(e)(2)(B)(i), a 15 presumption of injury occurs when there is a failure to accurately report "total hours work«i." 16 For the reasons set forth below, Maldonado is applicable but not for the reasons relied upon by 17 Health Net, rather this Court should conclude that Plaintiffs derivative wage statement claims may 18 proceed with respect to the certified class because, as held in Maldonado, there is an absence of the 19 hours worked on Plaintiffs paycheck stubs which givesriseto an inference of injury, 20 n. FACTUAL AND PROCEDURAL HISTORY 21 On May 11,2017, Plaintifffileda putative wage-and-hour class action alleging six causes of 22 action for: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Breaks; (3) Failure to Pay 23 Hourly Wages; (4) Failtffe to Provide Accurate Written Wage Statements; (5) Failure to Timely Pay All 24 Final Wages; and (6) Unfair Competition. On October 3,2017, PlaintifiFfileda First Amended 25 Complaint allying an additional cause of action for civil {lenalties pursuant to the Califomia Labor 26 Code Private Attomeys General Act of2004 (Lab. Code §§ 2698 et seq) 27 On December 21,2018, Plaintifffileda motion for class certification on the five wage-and-hour ' 28 claims. On August 29,2019, and after the motion was fully briefed by the parties, this Court issued a 1 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 1 tentative mling denying Plaintiff Arana's motion except for the claim involving off-the-clock woik as it 2 relates to the clocking in process (the "Clock-In-Claim"). (Aug. 30,2019 Tent. Ruling., p. 6.) 3 Subsequentiy, at die hearing on August 30,2019, this Court affirmed the tentative ruling and also 4 indicated that it would consider whether Plaintiff Arana's derivative wage statements claim could 5 proceed given that it would certify the Clock-In-Claim. The parties were permitted to file further 6 briefing on this limited issue. 7 The operative complaint alleges that PlaintifiF and putative class members were required to clock 8 in for their shifts using their work personal computers. To do so, they had to boot up the computers at 9 the beginning of each shift, wait it for to load, log in to the network, start up the program that would 10 record their work hours, and lastiy enter their credentials to actuaUy clock in. (FAC, ^ 20-25.) Based 11 on this process of clocking in. Plaintiff and putative class members were under the direction and control 12 of Health Net and should have been paid for the time spent clocking in, which they were not. 13 in. ARGUMENT 14 A. MALDONADO v. EPSILON PLASTICS, INC. DOES NOT EXTINGUISH 15 DERIVATE CLAIMS UNDER LABOR CODE SECTION 226 16 Health Net's reliance on Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308,1312 17 (2018) does not extricate it from liability in this case. In fact, it only solidifies it because, as the Court of 18 Appeal pointed out, which is directiy applicable to this case, that "But only the absence of the hours 19 worked will giveriseto an inference of injury; the absence of accurate wages earned will be remedied 20 by the violated wage and hour law itself, as is the case here." Id. at 1337. 21 In contrast, categories (a)(2) and (a)(9) refer to the "total hours worked," and "number of hours worked at each hourly rate." These categories are included 22 in subdivision (e)(2)(B)(i) - if they are excludedfromthe wage statement, injuiy may be presumed." 23 24 Id. In Maldonado, the employer improperly adopted a ten-hour alternative workweek schedule, that 25 resulted in the ninth and tenth hours not being properly designated as overtime hours. Id at 1334. The 26: consequence of the improperly designated hours resulted in not only the underpayment of overtime 27 wages but also wage statements that did not reflect the tme eamings of each employee. Given that the 28 wage statements, in tum, "did not properly indicate that the ninth and tenth hours were overtime," the 2 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO DERIVATFVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 1 trial court awarded penalties for inaccurate wage statements under Labor Code section 226 of the Labor 2 Code - in addition to unpaid overtime, interest, waiting time penalties, and attorneys' fees. Id. at 1312, 3 1334. 4 In reversing the trial court, the Court of Appeals explained that "[w]age statement penalties are 5 awarded only to employees who suffer injuiy 'as a result of a knowing and intentional failure by an 6 employer to comply with subdivision (a)." Id. at 1335. However, "an employee is deemed to sufFer 7 injuiy if the employer 'fails to provide accurate and complete information as required by any one or 8 more of items (1) to (9) inclusive, of subdivision (a) and the employee cannot promptiy and easily 9 determinefromthe wage statement alone one or more of the following: (i) the amount of gross wages or 10 net wages paid to the employee during the pay period or any ofthe other information required to be 11 provided on the itemized wage stalement pursuant to items (2) to (4) inclusive, (6) and (9) of 12 subdivision (a)." Id at 1335; Lab. Code § 226 (e)(2)(B) and (e)(2)(B)(i). In otiier words, while tiie 13 statute requires nine categories of information to be include in a wage statement, injury is only presumed 14 if one of five specific categories [total hours worked, number of piece-rate units eamed, all deductions, 15 mclusive dates of the pay period, and all applicable hourly rates] is omitted, and, even then, only if a 16 reasonable person would be unable to readily ascertain the missing infonnation without reference to 17 other documents or information. Id. 18 The Court of Appeals was careful to point out that the statutory language in subdivision (a) uses 19 both die term "eamed" and the term "worked." That is, categories (aXl) and (a)(5) require the employer 20 to provide infonnation regarding the "gross wages earned' and "net wages eamed" respectively, but 21 these two categories are excluded ftom subdivision (e)(2)(B)(i)'s list of those categories Avhose omission 22 gives rise to a presumption of injury. Id. at 1336. In contract, categories (a)(2) and (a)(9) refer to the 23 "total hours worked," and "number of hoiu^ worked at each hourly rate." "These categories are 24 included in subdivision (e)(2XB)(i) - if they are excludedfromthe wage statement, mjuiy may be 25 presumed. 26 Therefore, it is not surprising that the Court of Appeals reversed the trial court with respect to 27 the derivative wage statement claims. After all, the wage statements provided by Epsilon accurately 28 reported the "total hours worked," it just did not apply the coirect rate of pay for those hours "which 3 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 1 mandates that the employees receive unpaid overtime, interest, and attomeys' fees. It does not mandate 2 that they also receive penalties for the wage statements which accurately reflected their compensation 3 imder the rates at which they had worked at the time." Id. at 1337 (citations omitted.). 4 B. THERE IS A PRESUMPTION OF INJURY UNDER LABOR CODE SECTION 5 226 WHEN WAGE STATEMENTS DO NOT INCLUDE ALL HOURS 6 WORKED 7 As explained above, there is a presumption of injuiy when wage statements fail to capture all of 8 the hours worked by an employee. Id.; Lab. Code § 226(e)(2)(B)(i). In this action, and unlike 9 Maldonado where the wage statements did report the "total hours worked" by each class member. 10 Health Net failed to provide wage statements that correctly accoimted for the "total hours worked" by 11 Plaintiff and putative class members. Health Net even concedes in their brief that the failure to include 12 "hours worked" will giveriseto a presumption of injuiy. HNCA Brief, at 4:16-24. This Court certified 13 a "Clock In Claim" that includes putative class members whose start times were not accurately captured 14 by Health Net'stimekeepingsystem which, in tum, resulted in class members not being paid for all 15 wages. These putative class members would have received wage statements that did not include the 16 "total hours worked" during each shift. 17 Based on the above, and contrai>' to Health Net's assertion, this case is certainly not analogous 18 to Maldonado. Moreover, not only is Plaintiff not required to "estabUsh injuryflowingfiom the 19 inaccuracy," but the failure to provide "total hours worked" in Plaintiffs and the putative class' wage 20 statements falls within the category of information whose absence pemuts the presumption of injxuy. 21 Lab. Code § 226(a)(2) to (4), (6), and (9); Maldonado, supra, 22 Cal. App. 5tii at 1312,1334. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 4 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 IV. CONCLUSION 2 Here, because the "Clock In Claim" certified by this Court involves off-the-clock woric for 3 which Health Net failed to properly report the "total hours worked" by putative class members, there is a 4 presumption ofinjury under Labor Code section 226. Id. Health Net's reliance on A/a/c^^onatsfo is 5 misplaced because "only the absence of the hours worked will giveriseto an inference of injuiy; the 6 absence of accurate wages earned wUl be remedied by the violated wage and hour law itself, as is the 7 case here."/(i at 1337. 8 9 DATED: September 13,2019 SETAREH LAW GROUP ^ " 10 11 SHAUN SETAREH 12 WILLIAM M. PAO ALEXANDRA R. MCINTOSH 13 Attomeys for PlaintifiF TOMAS R. ARANA 14 15 16 17 18 19 20 21 22 23 24 25 26 21' 28 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 PROOF OF SERVICE I am a citi2:en of the United States and am employed in the County of Los Angeles, State of Califomia. I am over the age of 18 and not a party to the within action. My business address is 315 Soutii Beverly Drive, Suite 315 Beverly Hills, CA 90212. On September 13, 2019,1 served the foregoing documents described as: PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNLA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 8 in this action by transmitting a tme copy thereof enclosed in a sealed envelope addressed as ffollows ollows! 9 Norma B. Bliimenthal, Esq. 10 Timothy J. Long Esq. Victoria B. Rivapalacio Greenberg Traurig, LLP Blumenthal, Nordrehaug, & Bhowmik 11 1201 K. Street, Suite 1100 2255 Calle Clara Sacramento, CA 95814 LaJoUa, CA 92037 12 Email: Email: victoria@bamlawca.com 13 COUNSEL FOR DEFENDANT HEALTH Email: norm@bamlaca.com NET, INC. COUNSEL FOR PLAINTIFF ANDREA 14 SPEARS. 15 [X] BY MAIL 16 I am readily familiar with the practice of Setareh Law Group for the collection and 17 processing of correspondence for mailing with the United States Postal Service. It is the practice that correspondence is deposited with United States Postal Service the same day it is 18 submitted for mailing with postage thereon fully prepaid at Beverly Hills, Califomia. I am 19 aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 20 [X] STATE 21 22 I declare under penalty of perjury under the laws of the State of Califomia that the above is tme and correct. 23 24 Executed on September 13, 2019, at Beverly Hills, Cahfornia, 25 26 27 28 PROOFOF SERVICE