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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tilong(a)orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com
3 ORRICK, HERRINGTON & SUTCLIFFE LLP FILED/E^DOKEO
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 9200 DEC-7 2018
5 Facsimile: +1 916 329 4900
By: M. Rubalcaba
6 Attomeys for Defendant Deputy Clerk
HEALTH NET OF CALIFORNIA, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
11 of herself and on behalf of all persons similarly CU-OE-GDS
situated.
12 Plaintiff, DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MEMORANDUM
13 IN OPPOSITION TO PLAINTIFF
ANDREA SPEARS' E X PARTE
14 HEALTH NET OF CALIFORNIA, INC., a APPLICATION FOR ORDER
California Corporation; and Does 1 through 50, SHORTENING TIME ON PLAINTIFF'S
15 inclusive. MOTION TO CONTINUE HEARING
DATE AND BRIEFING SCHEDULE
16 Defendants. RELATING TO CLASS
CERTIFICATION
17
Date: December 7, 2018
18 Time: 3:00 p.m.
Dept.: 35
19 Judge: Hon. Alan G. Perkins
20 Complaint Filed: April 5, 2017
FAC Filed: June 29, 2017
21 Consolidated Complaint Filed: Dec. 21, 2017
22 TOMAS R. ARANA, on behalf of himself, all
Complaint Filed: August I , 2017
others similarly situated,
23
Plaintiff,
24
v.
25
HEALTH NET OF CALIFORNIA, INC., a
26 California corporation; and DOES 1-50,
inclusive.
27
Defendant.
28
DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' £.V/'/l/?7'£: APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT.
TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
1 I. INTRODUCTION
2 No good cause exists to grant the relief Plaintiff Spears's ("Spears") seeks in her Ex Parte
3 Application For Order Shortening Time On Plaintiffs Motion To Continue Hearing Date and
4 Briefing Schedule Relating To Class Certification ("Ex Parte Application"). At the outset it bears
5 mentioning that Spears' counsel noticed this hearing over the objection of Defendant Health Net
6 of California, Inc.'s ("HNCA") counsel. When Spears' counsel provided notice of this hearing,
7 HNCA's counsel told Spears' counsel that they were unavailable. There are only two Orrick
8 attomeys knowledgeable about the details implicated by this Ex Parte Application: Timothy J.
9 Long and Nicholas J. Horton. Spears' counsel was informed that Mr. Long would be in Los
10 Angeles chairing a large CLE conference and that Mr. Horton would be unavailable because he
11 would be traveling for his military duty. Counsel for HNCA requested that the hearing be
12 scheduled at another time and offered to appear the following court day, Monday, December 10,
13 2018. Although there are no exigent circumstances to require hearing this motion today (Friday,
14 December 7'*^), other than perhaps circumstances of Spears' counsel's own making. Spears'
15 counsel refused this reasonable request. The Court should therefore be aware that Mr. Long will
16 stepping away from his conference chair responsibilities to call in for this hearing. In addition,
17 the Court should be aware that he has a hard-stop at 3:30 pm. Mr. Long is scheduled to lead a
18 one hour ethics presentation at this Conference that is scheduled to begin at 3:30 pm.
19 Through her own delay, Spears advances essentially an all or nothing ex parte, demanding
20 this Court to rule on the substance of her Motion to Continue during the ex parte hearing, with
21 only two days' notice. Nothing in her Ex parte Application justifies such drastic emergency
22 relief In short, the Court should deny the Ex parte Application for the following reasons:
23 I. Plaintiff Arana has not joined the Ex Parte Application. Despite purporting to
24 assert reasons why "Plaintiffs" will be harmed if the certification hearing is not continued,
25 Plaintiff Arana ("Arana") has neither co-signed nor joined the Ex Parte Application. Arana's
26 inaction speaks volumes to why this Ex Parte Application is unnecessary.
27 2. Spears failed to identify any actual irreparable harm; nor can she. Her vague
28 contention that her briefing strategy may change based on issues of fact identified by a ruling on
DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' EX PARTE K??UCM\0^ FOR ORDER SHORTENING TIME ON PLF 'S MOT.
TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
1 the Renewed MSA is specious and inadequate. She provided no concrete examples to this Court
2 as to how any ruling on the Renewed MSA actually affects the potential class treatment of her
3 claims or arguments she might make, because she can't. It is well settled law that the merits of a
4 cause of action are not relevant to determining whether a cause of action is appropriate for class
5 treatment. Moreover, the Renewed MSA deals with the legal merits of portions of only one of
6 Spears' seven causes of action.
7 Moreover, the Court should decline Spears' buried invitation to rule on the substantive
8 merits of the Motion to Continue for at least the following reasons:
9 1. The Notice is defective. The Notice offi'xPar/e Application only seeks an "entry
10 of an order shortening time on the [Motion to Continue]," yet the memorandum seeks the
11 alternative relief of a ruling on the merits at the ex parte hearing.
12 2. Ex parte applications are procedural, not substantive. The law is clear that ex
13 parte applications are limited to procedural issues. Also, Local Rules do not permit this Court to
14 shorten time for opposing a motion to fewer than five court days' notice, absent good cause, or
15 two court days' notice with good cause shown. There is no good cause for Spears' delay in
16 seeking relief.
17 For these reasons. Court should deny this unnecessary and unwarranted Ex Parte
18 Application.'
19 n. ARGUMENT
20 A. The Court Should Deny The Ex Parte Application Because "Plaintiffs" Failed
To Identify Any Actual Irreparable Harm
1. Plaintiff Arana's Silence Amplifies Why This Ex Parte Application Is
22 Unnecessary.
23 Despite Spears' repeated references to "Plaintiffs" moving for ex parte relief and alleged
24 irreparable harm to "Plaintiffs," Arana is represented by separate counsel and has not joined the
25 far/e Application. Arana's silence speaks volumes. If Arana can file his motion for class
26 certification while the Renewed MSA is pending, so can Spears. Moreover, the Ex Parte
27
2g ' In addition to the reasons compelling denial of the Ex Parte Application, HNCA can provide numerous reasons why
the Motion to Continue substantively fails, should it be given an opportunity to oppose that motion on more than two
days' notice.
^2^
DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' £'A'/'/l«re APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT.
TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
1 Application fails to list Arana's counsel as required by California Rule of Court 3.1202(a),
2 despite Spears knowing that Arana is represented by separate counsel in this action.
3 2. Spears Has Not Identified Any Irreparable Harm That Compels
Relief; Nor Can She
4
5 California Rule of Court 3.1202(c) requires the party seeking affirmative relief to make an
6 affirmative showing of "irreparable harm, immediate danger, or any other statutory basis for
7 granting relief ex parte." Yet Spears only vaguely and conclusory asserts that Plaintiffs^ misht
8 suffer irreparable harm if class certification proceeds while the Renewed MSA is pending because
9 a ruling on the Renewed MSA misht affect her theories for class certification. (See, e.g.. Ex
10 parte Application 8:7-8 (concluding that irreparable harm exists "[g]iven that the result of the
11 Renewed MSA could affect the claims Plaintiffs may seek to certify and the way Plaintiffs may
12 present the theory of liability" - emphasis added).) Critically, Spears does not identify any actual
13 or specific irreparable harm. Her failure to affirmatively demonstrate actual irreparable harm is
14 fatal to her Ex Parte Application. (See Cal. Rule Court 3.1202(c); see also Ex parte Applications,
15 Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(1)-F ("Mere lack of time for statutory notice is not a
16 sufficient showing.").)
17 Instead of affirmatively showing any irreparable harm, Spears begins by generally
18 asserting the unremarkable proposition that "a decision on a motion for summary adjudication has
19 implications for a motion for class certification." (Exparte Application 8:18-25 (citing Archer v.
20 United Rentals, Inc. (2011) 195 Cal. App. 4th 807.).) While that observation may be true in the
21 abstract, it hardly constitutes irreparable harm. And if anything, that a motion for summary
22 adjudication may dispose of a meritless claim is a good thing for all concerned: it helps to narrow
23 and streamline the judicial process.
24 Spears next contends that in ruling on the cash benefits paid by the health plan, which is
25 the focus of the Renewed MSA, "the Court will instruct the parties as to those facts that are truly
26 the ones that create triable issues of fact," and that "learning what those relevant triable issues are
27 is critical for Plaintiffs to argue in the motion for class certification how those triable issues of
28
^ Again, despite referencing harm to "Plaintiffs," Arana's counsel neither co-signed nor joined the Elx Parle
Application.
^3-
DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' £A'/'/4«7'£: APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT.
TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
fact can be adjudicated based on common evidence." (Exparte Application 8:26-9:2). Again,
2 Spears does not provide any examples of actual harm that she will suffer if the class certification
3 proceeds in parallel with the Renewed MSA. Nor can she.
4 Spears' meal and rest period claims are not at issue in the Renewed MSA. (Horton Decl.,
5 at I 3.) In fact, the only claim Spears has that is at issue in the Renewed MSA is her claim that
6 HNCA improperly excluded from her regular rate cash benefits paid to her by the health plan
7 when calculating her overtime pay. (Horton Decl., at ^ 4.) HNCA is seeking summary
8 adjudication on that purely legal issue on the basis that such payments were properly excluded
9 from the regular rate pursuant to the Fair Labor and Standards Act's Health-Benefits Contribution
10 Exception. (Horton Decl., at ^ 5.) Resolution of this legal issue rests on the structure of the
health plan, not on any commonality or predominance related issues. (Horton Decl., at ^ 5.)
12 Thus, any triable issues the Court misht identify in ruling on that motion will not relate to any
13 common evidence that Spears misht use to prove this meritless claim on a class-wide basis. Nor
14 is the heart of her class certification motion, her meal and rest period claims, affected by the
15 Renewed MSA, because those claims are not at issue in the Renewed MSA. In sum, the
16 Renewed MSA does not limit any theory she may present for the purposes of class certification.
17 B. There Is No Good Cause To Grant The Extraordinary Relief Of Ruing On
The Substantive Merits Of The Motion To Continue During The Ex parte
18 Hearing
19 1. The Notice Of The Ex parte Application Is Defective As To Any Relief
Other Than An Order Shortening Time
20
21 California Rule of Court 3.1204 requires the notice of an ex parte application to "[sjtate
22 with specificity the nature of the relief to be requested." Yet, Spears' Notice only states that
23 "Plaintiffs^ will apply to the Court ex parte for the entry of an order shortening time on the
24 motion to Continue Hearing Date and Briefing Schedule Relating to Class Certification ("Motion
25 to Continue")." The Notice is therefore defective as to Spears' preferred relief and there is no
26 basis to rule on the substantive merits of the Motion to Continue at the ex parte hearing.
27
28
Not to belabor the point, but "Plaintiffs" did not apply ex parte. Instead, only Spears has sought ex parte relief As
noted in Section 11.A.1., Arana's silence on this Ex Parte Application speaks volumes as to its lack of merit.
-4-
DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS'£A'/'/4fl7'£ APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT
TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
1 2. Ex parte Applications Cannot Obtain Substantive Relief
2 To the extent that an order shortening time might have been appropriate, there is no basis
3 for this this Court to rule on the merits of the Motion to Continue at the time of the ex parte
4 hearing. Sacramento Superior Court Local Rule 2.35(B) provide as follows:
5 Except by order of the court, upon a showing of good cause, all ex parte
applications seeking a hearing on shortened time shall provide for opposition
6 papers to be filed and served five court days and reply papers to be filed and
served two court days prior to the hearing date. Upon a showing of good cause,
7 the court, in its discretion, may order a shorter time or that there be no reply, but
in no event shall the last paper be filed later than 9:00 a.m. two court days before
8 the hearing.
9 Local Civil Rule 2.35(B).
10 There is no good cause to hear the motion on less than the five court day notice required
11 by Local Rule 2.35(B). Spears created an exigency by failing to seek relief sooner. Defendant
12 personally served the Renewed MSA on November 19, 2018. (Horton Decl., at ^ 6.) Spears then
13 waited eight days (four court days) to seek a stipulation from Defendant to continue the hearing.
14 (Horton Decl., at \ 7.) Defendant responded the following day declining the stipulation because
15 there is no reason that the Renewed MSA and the class certification motions cannot proceed in
16 parallel. (Horton Decl., at \ 8.) Plaintiff then waited an additional seven days (four more court
17 days) before filing this ex parte application—seeking the extraordinary relief of having this Court
18 rule on the substantive motion at the ex parte hearing on two days' notice—and without providing
19 HNCA any meaningful opportunity to prepare and file robust opposition papers. (See Ex parte
20 Application 6:7-9.)
21 The only explanation for this dilatory conduct is that Spears intended to foist upon the
22 Court and HNCA a substantive motion on only two days' notice. This is evidenced by the fact
23 that Spears never presented HNCA with an abbreviated briefing schedule that might obviate the
24 need to oppose any ex parte application. (Horton Decl., 9-10, Exh. A.) And it is further
25 evidence by Spears' refusal hold to move the ex parte hearing by one court day to allow HNCA's
26 counsel to attend in person. (Horton Decl., 11, Exh. B.)
27 ///
28 ///
DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT.
TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
IH. CONCLUSION
2 For all the foregoing reasons, the Court should deny Spears' Ex Parte Application.
3 Should the Court grant the Ex Parte Application to shorten the time for hearing a Motion to
4 Continue, Defendant respectfully requests an opportunity to fully brief its opposition to that
5 motion pursuant to Local Rules.
6 Dated: December 7, 2018. ORRICK, HERRINGTON & SUTCLIFFE LLP
7
8 By:
NICHOLAS J. HORTON
9 Attorneys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' EX PARTE APPL\CAJ\ON FOR ORDER SHORTENING TIME ON PLF.'S MOT
• TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
4139-6910-7225
Preview
pCcd 5y Pd^c 1 TIMOTHY J. LONG (STATE BAR NO. 137591) tilong(a)orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com 3 ORRICK, HERRINGTON & SUTCLIFFE LLP FILED/E^DOKEO 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 9200 DEC-7 2018 5 Facsimile: +1 916 329 4900 By: M. Rubalcaba 6 Attomeys for Defendant Deputy Clerk HEALTH NET OF CALIFORNIA, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 11 of herself and on behalf of all persons similarly CU-OE-GDS situated. 12 Plaintiff, DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MEMORANDUM 13 IN OPPOSITION TO PLAINTIFF ANDREA SPEARS' E X PARTE 14 HEALTH NET OF CALIFORNIA, INC., a APPLICATION FOR ORDER California Corporation; and Does 1 through 50, SHORTENING TIME ON PLAINTIFF'S 15 inclusive. MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE 16 Defendants. RELATING TO CLASS CERTIFICATION 17 Date: December 7, 2018 18 Time: 3:00 p.m. Dept.: 35 19 Judge: Hon. Alan G. Perkins 20 Complaint Filed: April 5, 2017 FAC Filed: June 29, 2017 21 Consolidated Complaint Filed: Dec. 21, 2017 22 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August I , 2017 others similarly situated, 23 Plaintiff, 24 v. 25 HEALTH NET OF CALIFORNIA, INC., a 26 California corporation; and DOES 1-50, inclusive. 27 Defendant. 28 DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' £.V/'/l/?7'£: APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT. TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225 1 I. INTRODUCTION 2 No good cause exists to grant the relief Plaintiff Spears's ("Spears") seeks in her Ex Parte 3 Application For Order Shortening Time On Plaintiffs Motion To Continue Hearing Date and 4 Briefing Schedule Relating To Class Certification ("Ex Parte Application"). At the outset it bears 5 mentioning that Spears' counsel noticed this hearing over the objection of Defendant Health Net 6 of California, Inc.'s ("HNCA") counsel. When Spears' counsel provided notice of this hearing, 7 HNCA's counsel told Spears' counsel that they were unavailable. There are only two Orrick 8 attomeys knowledgeable about the details implicated by this Ex Parte Application: Timothy J. 9 Long and Nicholas J. Horton. Spears' counsel was informed that Mr. Long would be in Los 10 Angeles chairing a large CLE conference and that Mr. Horton would be unavailable because he 11 would be traveling for his military duty. Counsel for HNCA requested that the hearing be 12 scheduled at another time and offered to appear the following court day, Monday, December 10, 13 2018. Although there are no exigent circumstances to require hearing this motion today (Friday, 14 December 7'*^), other than perhaps circumstances of Spears' counsel's own making. Spears' 15 counsel refused this reasonable request. The Court should therefore be aware that Mr. Long will 16 stepping away from his conference chair responsibilities to call in for this hearing. In addition, 17 the Court should be aware that he has a hard-stop at 3:30 pm. Mr. Long is scheduled to lead a 18 one hour ethics presentation at this Conference that is scheduled to begin at 3:30 pm. 19 Through her own delay, Spears advances essentially an all or nothing ex parte, demanding 20 this Court to rule on the substance of her Motion to Continue during the ex parte hearing, with 21 only two days' notice. Nothing in her Ex parte Application justifies such drastic emergency 22 relief In short, the Court should deny the Ex parte Application for the following reasons: 23 I. Plaintiff Arana has not joined the Ex Parte Application. Despite purporting to 24 assert reasons why "Plaintiffs" will be harmed if the certification hearing is not continued, 25 Plaintiff Arana ("Arana") has neither co-signed nor joined the Ex Parte Application. Arana's 26 inaction speaks volumes to why this Ex Parte Application is unnecessary. 27 2. Spears failed to identify any actual irreparable harm; nor can she. Her vague 28 contention that her briefing strategy may change based on issues of fact identified by a ruling on DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' EX PARTE K??UCM\0^ FOR ORDER SHORTENING TIME ON PLF 'S MOT. TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225 1 the Renewed MSA is specious and inadequate. She provided no concrete examples to this Court 2 as to how any ruling on the Renewed MSA actually affects the potential class treatment of her 3 claims or arguments she might make, because she can't. It is well settled law that the merits of a 4 cause of action are not relevant to determining whether a cause of action is appropriate for class 5 treatment. Moreover, the Renewed MSA deals with the legal merits of portions of only one of 6 Spears' seven causes of action. 7 Moreover, the Court should decline Spears' buried invitation to rule on the substantive 8 merits of the Motion to Continue for at least the following reasons: 9 1. The Notice is defective. The Notice offi'xPar/e Application only seeks an "entry 10 of an order shortening time on the [Motion to Continue]," yet the memorandum seeks the 11 alternative relief of a ruling on the merits at the ex parte hearing. 12 2. Ex parte applications are procedural, not substantive. The law is clear that ex 13 parte applications are limited to procedural issues. Also, Local Rules do not permit this Court to 14 shorten time for opposing a motion to fewer than five court days' notice, absent good cause, or 15 two court days' notice with good cause shown. There is no good cause for Spears' delay in 16 seeking relief. 17 For these reasons. Court should deny this unnecessary and unwarranted Ex Parte 18 Application.' 19 n. ARGUMENT 20 A. The Court Should Deny The Ex Parte Application Because "Plaintiffs" Failed To Identify Any Actual Irreparable Harm 1. Plaintiff Arana's Silence Amplifies Why This Ex Parte Application Is 22 Unnecessary. 23 Despite Spears' repeated references to "Plaintiffs" moving for ex parte relief and alleged 24 irreparable harm to "Plaintiffs," Arana is represented by separate counsel and has not joined the 25 far/e Application. Arana's silence speaks volumes. If Arana can file his motion for class 26 certification while the Renewed MSA is pending, so can Spears. Moreover, the Ex Parte 27 2g ' In addition to the reasons compelling denial of the Ex Parte Application, HNCA can provide numerous reasons why the Motion to Continue substantively fails, should it be given an opportunity to oppose that motion on more than two days' notice. ^2^ DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' £'A'/'/l«re APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT. TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225 1 Application fails to list Arana's counsel as required by California Rule of Court 3.1202(a), 2 despite Spears knowing that Arana is represented by separate counsel in this action. 3 2. Spears Has Not Identified Any Irreparable Harm That Compels Relief; Nor Can She 4 5 California Rule of Court 3.1202(c) requires the party seeking affirmative relief to make an 6 affirmative showing of "irreparable harm, immediate danger, or any other statutory basis for 7 granting relief ex parte." Yet Spears only vaguely and conclusory asserts that Plaintiffs^ misht 8 suffer irreparable harm if class certification proceeds while the Renewed MSA is pending because 9 a ruling on the Renewed MSA misht affect her theories for class certification. (See, e.g.. Ex 10 parte Application 8:7-8 (concluding that irreparable harm exists "[g]iven that the result of the 11 Renewed MSA could affect the claims Plaintiffs may seek to certify and the way Plaintiffs may 12 present the theory of liability" - emphasis added).) Critically, Spears does not identify any actual 13 or specific irreparable harm. Her failure to affirmatively demonstrate actual irreparable harm is 14 fatal to her Ex Parte Application. (See Cal. Rule Court 3.1202(c); see also Ex parte Applications, 15 Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(1)-F ("Mere lack of time for statutory notice is not a 16 sufficient showing.").) 17 Instead of affirmatively showing any irreparable harm, Spears begins by generally 18 asserting the unremarkable proposition that "a decision on a motion for summary adjudication has 19 implications for a motion for class certification." (Exparte Application 8:18-25 (citing Archer v. 20 United Rentals, Inc. (2011) 195 Cal. App. 4th 807.).) While that observation may be true in the 21 abstract, it hardly constitutes irreparable harm. And if anything, that a motion for summary 22 adjudication may dispose of a meritless claim is a good thing for all concerned: it helps to narrow 23 and streamline the judicial process. 24 Spears next contends that in ruling on the cash benefits paid by the health plan, which is 25 the focus of the Renewed MSA, "the Court will instruct the parties as to those facts that are truly 26 the ones that create triable issues of fact," and that "learning what those relevant triable issues are 27 is critical for Plaintiffs to argue in the motion for class certification how those triable issues of 28 ^ Again, despite referencing harm to "Plaintiffs," Arana's counsel neither co-signed nor joined the Elx Parle Application. ^3- DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' £A'/'/4«7'£: APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT. TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225 fact can be adjudicated based on common evidence." (Exparte Application 8:26-9:2). Again, 2 Spears does not provide any examples of actual harm that she will suffer if the class certification 3 proceeds in parallel with the Renewed MSA. Nor can she. 4 Spears' meal and rest period claims are not at issue in the Renewed MSA. (Horton Decl., 5 at I 3.) In fact, the only claim Spears has that is at issue in the Renewed MSA is her claim that 6 HNCA improperly excluded from her regular rate cash benefits paid to her by the health plan 7 when calculating her overtime pay. (Horton Decl., at ^ 4.) HNCA is seeking summary 8 adjudication on that purely legal issue on the basis that such payments were properly excluded 9 from the regular rate pursuant to the Fair Labor and Standards Act's Health-Benefits Contribution 10 Exception. (Horton Decl., at ^ 5.) Resolution of this legal issue rests on the structure of the health plan, not on any commonality or predominance related issues. (Horton Decl., at ^ 5.) 12 Thus, any triable issues the Court misht identify in ruling on that motion will not relate to any 13 common evidence that Spears misht use to prove this meritless claim on a class-wide basis. Nor 14 is the heart of her class certification motion, her meal and rest period claims, affected by the 15 Renewed MSA, because those claims are not at issue in the Renewed MSA. In sum, the 16 Renewed MSA does not limit any theory she may present for the purposes of class certification. 17 B. There Is No Good Cause To Grant The Extraordinary Relief Of Ruing On The Substantive Merits Of The Motion To Continue During The Ex parte 18 Hearing 19 1. The Notice Of The Ex parte Application Is Defective As To Any Relief Other Than An Order Shortening Time 20 21 California Rule of Court 3.1204 requires the notice of an ex parte application to "[sjtate 22 with specificity the nature of the relief to be requested." Yet, Spears' Notice only states that 23 "Plaintiffs^ will apply to the Court ex parte for the entry of an order shortening time on the 24 motion to Continue Hearing Date and Briefing Schedule Relating to Class Certification ("Motion 25 to Continue")." The Notice is therefore defective as to Spears' preferred relief and there is no 26 basis to rule on the substantive merits of the Motion to Continue at the ex parte hearing. 27 28 Not to belabor the point, but "Plaintiffs" did not apply ex parte. Instead, only Spears has sought ex parte relief As noted in Section 11.A.1., Arana's silence on this Ex Parte Application speaks volumes as to its lack of merit. -4- DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS'£A'/'/4fl7'£ APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225 1 2. Ex parte Applications Cannot Obtain Substantive Relief 2 To the extent that an order shortening time might have been appropriate, there is no basis 3 for this this Court to rule on the merits of the Motion to Continue at the time of the ex parte 4 hearing. Sacramento Superior Court Local Rule 2.35(B) provide as follows: 5 Except by order of the court, upon a showing of good cause, all ex parte applications seeking a hearing on shortened time shall provide for opposition 6 papers to be filed and served five court days and reply papers to be filed and served two court days prior to the hearing date. Upon a showing of good cause, 7 the court, in its discretion, may order a shorter time or that there be no reply, but in no event shall the last paper be filed later than 9:00 a.m. two court days before 8 the hearing. 9 Local Civil Rule 2.35(B). 10 There is no good cause to hear the motion on less than the five court day notice required 11 by Local Rule 2.35(B). Spears created an exigency by failing to seek relief sooner. Defendant 12 personally served the Renewed MSA on November 19, 2018. (Horton Decl., at ^ 6.) Spears then 13 waited eight days (four court days) to seek a stipulation from Defendant to continue the hearing. 14 (Horton Decl., at \ 7.) Defendant responded the following day declining the stipulation because 15 there is no reason that the Renewed MSA and the class certification motions cannot proceed in 16 parallel. (Horton Decl., at \ 8.) Plaintiff then waited an additional seven days (four more court 17 days) before filing this ex parte application—seeking the extraordinary relief of having this Court 18 rule on the substantive motion at the ex parte hearing on two days' notice—and without providing 19 HNCA any meaningful opportunity to prepare and file robust opposition papers. (See Ex parte 20 Application 6:7-9.) 21 The only explanation for this dilatory conduct is that Spears intended to foist upon the 22 Court and HNCA a substantive motion on only two days' notice. This is evidenced by the fact 23 that Spears never presented HNCA with an abbreviated briefing schedule that might obviate the 24 need to oppose any ex parte application. (Horton Decl., 9-10, Exh. A.) And it is further 25 evidence by Spears' refusal hold to move the ex parte hearing by one court day to allow HNCA's 26 counsel to attend in person. (Horton Decl., 11, Exh. B.) 27 /// 28 /// DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON PLF.'S MOT. TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225 IH. CONCLUSION 2 For all the foregoing reasons, the Court should deny Spears' Ex Parte Application. 3 Should the Court grant the Ex Parte Application to shorten the time for hearing a Motion to 4 Continue, Defendant respectfully requests an opportunity to fully brief its opposition to that 5 motion pursuant to Local Rules. 6 Dated: December 7, 2018. ORRICK, HERRINGTON & SUTCLIFFE LLP 7 8 By: NICHOLAS J. HORTON 9 Attorneys for Defendant HEALTH NET OF CALIFORNIA, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEF.'S MEM. IN OPP'N TO PLF. ANDREA SPEARS' EX PARTE APPL\CAJ\ON FOR ORDER SHORTENING TIME ON PLF.'S MOT • TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4139-6910-7225