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1 TIMOTHY J. LONG (STATE BARNO. 137591) idrlLE^ •
tjlong@orrick.com
2. NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com
3 ORRICK, HERRINGTON & SUTCLIFFE LLP DEC 2 1 2018
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497 By 1 Mripr
Telephone: +1 916 447 8299 Deputy Clerk
5 Facsimile: +1 916 329 4900
6 Attomeys for Defendant
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-
of herself and on behalf of all persons CU-OE-GDS
11 similarly situated,
i Plaintiff,
12 MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
13 MOTION AS TO WHY ARANA'S CASE
SHOULD NOT PROCEED AS A PAGA
HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION
14 Caiifomia Corporation; and Does 1 through
50, inclusive. Date: April 11,2019
15 Time: 10:00 a.m.
Defendants. Dept: . 35
16 Judge: Hon. Alan G. Perkins
17 Complaint Filed: April 5,2017
FAC Filed: June 29, 2017
18
19 TOMAS R. ARANA, on behalf of himself, all
others similarly situated. Complaint Filed: .August 1,2017
Consolidated Complaint Filed: Dec. 21, 2017
20
Plaintiff,
21
22
HEALTH NET OF CALIFORNIA, INC., a
23 Caiifomia corporation; and DOES 1-50,
inclusive, "
24
Defendant.
<
25
Z- 26
2 27
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 TABLE OF CONTENTS
2 Page
3 L INTRODUCTION.... : ....4
IL FACTUAL AND PROCEDURAL BACKGROUND 5
4
A. HNCA Employs Arana at Its Rancho Cordova Center 5
5 B. Arana Filed His Written Nbtice With the LWDA Asserting Six Claims and
Then Asserted Those Claims in Court 5
C. The Court Grants Summary Adjudication on Arana's Rounding and Shift
7 Differential Claims, and Arana Clarifies That He Is Not Pursuing
Representative Claims Based on Alleged Misclassification or Improper
g Calculation of His Regular Rate ...8
IIL ARGUMENT...! 9
9
A. Arana Cannot Bring PAGA Claims on Behalf of Exempt Employees or
IQ Based on Alleged Regular Rate Violations : 9
B. Areina's PAGA Claims for Meal Period Violations, Rest Period Violations,
11 and Off-the-Clock Work Brought on Behalf of Non-Exempt Employees
Are Time-Barred : 9
12
C. Arana Lacks Standing to Bririg Claims in a Representative Capacity on
13 Behalf of Non-Exempt Employees Because He Is Not an "Aggrieved
Employee." ; 10
14 D. Even If Arana Had Standing Pursue PAGA Claims, His PAGA Claims for
15 Meal Period Violations, Rest Period Violations, and Off-the-Clock
Violations Must Be Stricken as Unmanageable 12
16 IV. CONCLUSION 16
17
18
19
20
21
22
23
24
25
26
27
28
-2-
MEMORANDUM OF POINTS AND AUTHORITI ES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 TABLE OF AUTHORITIES
2 Page(s)
3
Cases
4
Brinker Rest Corp. v. Superior Court,
5 53 CaL 4th 1004 (2012) 13
6 Bronco Wine Co. v. Loguso Farms,
214 Cal. App. 3d 699 (1989) 12, 16
7 Brown v. Ralphs Grocery Co.,
8 28 Cal. App. 5th 824, 829 (2018) , ...6, 9
9 Gordon v. Aerotek, Inc.,
2017 WL 8217410 (CD. Cal. Oct. 12, 2017)..... 10, 11
10
11 Kim V. Reins Int'I. Cal., Inc.,
18 CaL App. 5th 1052, 1057 (2017) 10, 11
12
Morillion v. Royal Packing Co.,
13 22 Cal. 4th 575 (2000) : 13
14 S. Bay Chevrolet v. General Motors Acceptance Corp..
72 Cal. App. 4th 861 (1999) 12, 16
15
16 Thomas v Home Depot, Inc.,
527 F. Supp. 2d 1003 (N.D. Cal. 2007) ...10, 11
17
Williams v. Superior Court,
18 3 CaL 5th 531, 558 (2017) 10,12
19 Statutes
20 Cal. Lab. Code § 2699(a) 11
21 California's Unfair Competition Law 6, 7
22
Lab. Code § 2699(c)... : 10, 11
23
Labor Code passim
24
Labor Code § 256 6
25
Labor Code § 558 6
26
LaborCode § 1199 , 6
27
LaborCode § 2699.3 4, 5, 11
28
-3-
MEMORANDUM OF POfNTS AND AUTHORITIES FN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 I. INTRODUCTION
2 A PAGA action is framed by the claims asserted by a PAGA plaintiff in the written notice
3 he is required to file with the Labor and Workforce Development Agency ("LWDA") pursuant to
4 Labor Code section 2699.3 before pursing his claim in court. If the plaintiff did not assert a claim
5 in that written notice, he caimot pursue that claim under the PAGA in court. Likewise, if the
6 PAGA claims he asserted in the written notice are time-barred, he cannot pursue those claims in
7 court.
8 In this matter. Plaintiff Tomas Arana asserted six PAGA claims against Defendant Health
9 Net of Caiifomia, Inc. ("HNCA") in his written notice to the LWDA ("Written Notice"): (1)
10 HNCA's rounding policies resulted in employees' time being inaccurately recorded and, as a
11 result, inaccurately paid (2) HNCA improperly classified certain employees as being exempt from
12 overtime; (3) HNCA incorrectly calculated employees' regular rate of pay by failing to include
13 non-discretionary bonuses and "other remuneration" in that rate; (4) HNCA knew or should have
14 known that employees were working off the clock and were not being compensated for that time;
15 (5) HNCA violated the Labor Code's requirement to provide meal breaks, and (6) HNCA violated
16 the Labor Code's requirements to provide rest breaks. These claims form the basis for the
17 allegations Arana originally filed against HNCA, which were later incorporated into the
18 Consolidated Complaint filed with this Court.
19 Arana is not pursuing the misclassification claims on a representative (or class) basis, as
20 his counsel recently confirmed on the record during Arana's deposition.' Arana's counsel
21 likewise stipulated that Arana is not pursuing the regular rate claim on an individual or
22 representative basis. The Court has granted summary judgment for HNCA on Arana's rounding
23 policies claim. The remaining three claims—^meal period, rest period, and off-the-clock claims—
24 apply only to non-exempt employees, as the result of Arana's stipulation that he is not pursuing
25 PAGA or class claims based on the theory that he, or anyone else, was improperly classified as an
26 exempt employee. These claims are time-barred because while Arana at one time held a non-
27
28 ' HNCA understands Arana's stipulation to mean that he has retained the right to pursue an individual claim that he
has been misclassified as an exempt employee.
MEMORANDUM OF POFNTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 exempt position at HNCA, it was more than one year before he filed his Written Notice with the
2 LWDA. And, even if these claims were not time-barred, they cannot proceed on a representative
3 basis. Not only is the proof necessary for Arana to present these claims not uniform, but these
4 claims involve the resolution of complex factual issues and pose serious management problems
5 for the court.
6 Because Arana has no viable PAGA claims, he carmot proceed with a PAGA
7 representative action. HNCA therefore respectfully requests that the Court decline Arana's
8 request to proceed as a representative for PAGA claims.'^
9 II. FACTUAL AND PROCEDURAL BACKGROUND
10 A. HNCA Employs Arana at Its Rancho Cordova Center.
11 HNCA is a health maintenance organization that operates here in Sacramento County, as
12 well as in Southem Caiifomia. Decl. of Diane C. Rodes ISO Motion Why Arana's Case Should
13 Not Proceed as a PAGA Representative Action ("Rodes DecL") TI 2. HNCA provides health
14 insurance products such as commercial HMO plans and healthcare service plans. Id.
15 Arana is currently employed by HNCA at its Sun Center, Rancho Cordova facility. Rodes
16 Decl. TI 3. Arana was hired in 2008 as a non-exempt employee. Decl. of Timothy J. Long ISO
17 Motion Why Arana's Case Should Not Proceed as a PAGA Representative Action ("Long DecL")
18 TI 10, Ex. H at 101:15-17; Rodes Decl. TI 3. He remained a non-exempt employee until he was
19 promoted effective November 15,2015, to the exempt position (Contact Center Analyst) he
20 currently holds. Long Decl. TI 10, Ex. H at 114:24-115:2; Rodes Decl. 13.
21 B. Arana Filed His Written Notice With the LWDA Asserting Six Claims and
Then Asserted Those Claims in Court.
22
23 On May 9, 2017, Arana filed his Written Notice with the LWDA pursuant to Labor Code
24 section 2699.3. Decl. of Juliet Grimson ISO Motion Why Arana's Case Should Not Proceed as a
25 PAGA Representative Action ("Grimson DecL") TI 3, Ex. A. Arana's Written Notice asserted six
26
27
28
>•
^ Concurrently with this motion, HNCA has filed a similar motion addressing the propriety of Spears' case
proceeding as a PAGA representative action (the "Spears Motion"). While Spears and Arana are proceeding under a
consolidated
ultimately
AS TO complaint,
distinct
WHY the they
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LWDA.
1 PAGA claims. He claimed that HNCA's rounding policies resulted in employees' time being
2 inaccurately recorded and, as a result, inaccurately paid. Id. TI 3, Ex. A at 10. He further asserted
3 that HNCA incorrectly calculated employees' regular rate of pay by failing to include non-
4 discretionary bonuses and other remuneration in that rate. M Tl 3, Ex. A at 9-10. He further
5 claimed that HNCA improperly classified certain employees as being exempt from overtime. Id.
6 Tl 3, Ex. A at 3, 6, 9. He also claimed that HNCA violated the Labor Code's requirements to
7 provide meal breaks and rest breaks. Id. TI 3, Ex. A at 2-10. Finally, he asserted that HNCA knew
8 or should have known that employees were working off the clock and were not being
9 compensated for that time. Id. \ 3, Ex. A at 10. These claims form the basis for the allegations
10 Arana originally filed against HNCA, which were later incorporated into the Consolidated
11 Complaint filed with this Court. See Long Decl. TITI 3, 7, Exs. B, F. Arana's Written Notice
12 further asserted a number of derivative claims, namely that HNCA failed to pay premium wages
13 at the regular rate ofpay, failed to provide accurate written wage statements, provided late or
14 incomplete final wages to discharged employees, and is liable for penalties under Labor Code
15 sections 558, 1199, and 256. Grimson Decl. T| 3, Ex. A at 11-18. The law is clear that Arana's
16 Written Notice defined and limited the claims he could pursue under the PAGA in court. See,
17 e.g. Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 829 (2018) (a plaintiff may not later
18 pursue PAGA penalties for additional claimed violations not included in the plaintiffs LWDA
19 notice).
20 On May 11,2017, Arana filed a complaint in the Superior Court of Santa Clara, but the
21 parties stipulated to dismissal of that complaint without prejudice so that it could be refiled in this
22 Court. Long Decl. TI 2, Ex, A. On August 1, 2017, Arana filed his lawsuit against HNCA in this
23 Court, alleging meal period violations, rest period violations, misclassification of exempt
24 employees, rounding violations, off-the-clock violations, and failure to correctly calculate
25 employees' regular rate of pay based on the failure to include "among other things, non-
26 discretionary bonuses and/or shift differential pay" in the regular rate. Id. TI 3, Ex. B at 5-9. As
27 derivative claims, Arana asserted that HNCA failed to provide accurate written wage statements,
28 failed to pay all final wages, and violated Califomia's Unfair Competition Law. Id. TI 3, Ex. B at
-6-
MEMORANDUM OF POfNTS AND AUTHORITIES FN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 Til 70-113. Arana's complaint did not assert any claims under the PAGA.
2 In December 2017, following the Court's order consolidating Arana's case with Spears'
3 case for all purposes, the parties filed a Consolidated Complaint. Long Decl. TITI 6, 7, Exs. E, F.
4 The Consolidated Complaint asserts causes of action against HNCA arising from same basic
5 categories of claimed Labor Code violations as alleged in Arana's Written Notice to the LWDA.'^
6 First, the Consolidated Complaint claims that HNCA used improper rounding practices. Id. TI 7,
7 Ex. F at TITI 34T35. Second, the Consolidated Complaint asserts that HNCA failed to pay non-
8 exempt employees the correct amount of overtime by failing to include "cash in lieu of benefits"
9 and non-discretionary bonuses in the regular rate of pay. Id. TI 7, Ex. F at TITI 40-41. Third, the
10 Consolidated Complaint asserts that HNCA misdassified certain employees and, as a result, those
11 employees were not provided meal and rest periods, were not paid overtime, and were not paid
12 adequate houriy wages. M. TI 7, Ex. F at TITI 11, 31-33, 50-54, 64-67, 84-85, 93. Fourth, the
13 Consolidated Cbmplaint contends that HNCA failed to provide non-exempt employees with
14 compliant meal periods and second meal periods and failed to provide premium pay to non-
15 exempt employees when meal periods were missed. Id. \ 7 , Ex. F at TITI 42-56. Fifth, the
16 Consolidated Complaint asserts that HNCA failed to provide non-exempt employees with
17 compliant rest periods and failed to pay employees premium pay when rest periods were missed.
18 Id. TI 7, Ex. F at Til 57-69. And sixth, the Consolidated Complaint alleges that HNCA employees
19 were working off the clock and were not being compensated for that time. Id. 17, Ex. F at H 22-
20 30.
21 The Consolidated Complaint includes additional causes of action that are derivative of
22 these alleged violations. The Consolidated Complaint asserts that HNCA provided inaccurate
23 wage statements, Long Decl. 17, Ex. F at H 95-109, failed to pay all former employees all final
24 wages owed within 72 hours of their last date of employment, id. 17, Ex. F at H 110-120, and
25 violated Califomia's Unfair Competition Law, id. 17, Ex. F at H 121-138. This laundry list of
26
^ In October 2017, Arana attempted tofilea First Amended Complaint containing a cause of action for civil pena
under the PAGA, but thatfilingwas rejected by the Court. Long Decl. Tl 4, Ex. C. Thus, it was not until Arana's
case was consolidated with Spears' and the Court permitted the parties tofilea Consolidated Complaint (contain
the PAGA claims Arana alleged in his rejected FAC) that Aranafileda pleading setting forth his PAGA claims. S
2<* id\6,E\.E.
-7-
MEMORANDUM OF POINTS AND AUTHORITIES FN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 alleged Labor Code violations provides the basis for the PAGA claim alleged in the Consolidated
2 Complaint. M. 17, Ex. F at 1144.
3 G. The Court Grants Summarv Adjudication on Arana's Rounding and Shift
Differential Claims, and Arana Clarifies That He Is Not Pursuing
4 Representative Claims Based on Alleged Misclassification or Improper
Calculation of His Regular Rate
5 ,
6 On October 23,2018, the Court granted summary adjudication for HNCA on Plainfiffs'
7 claims—including Plaintiffs' PAGA claims—Ewising from HNCA's alleged rounding practices
8 and alleged failure to include shift differential premiums in the regular rate of pay. Long Decl.
9 18, Ex. G at 9. Shortly thereafter, on December 3, 2018, HNCA deposed Arana. Id. 110. At the
10 deposition, Arana stipulated through counsel, on the record, that he is not pursuing any PAGA
11 representative claims (or class clainis) on behalf of allegedly misdassified employees.
12 Specifically, the parties stipulated as follows:
13 Mr. Long: First point, counsel and 1 had agreed on the record with
regard to a stipulation pertaining to Mr. Arana's exemption claims.
14 We've refined that and clarified that Mr. Arana will not be moving
to certify any claim based on an allegation that an individual was
15 improperly classified as an exempt employee, as well as all claims -
- as well as all PAGA claims, P-A-G-A in all caps, that are
16 derivative of such claims, meaning to the extent they arise out of
somebody being allegedly misclassified.
MR. LEVIANT: And I agree with that statement and stipulate to
18 that agreement.
19. 7i/. l 10,Ex. Hat 126:2-13.
20 The parties further stipulated that, with respect to "claims in the lawsuit having to do with
21 the proper calculation of the regular rate for purposes of calculating overtime," Arana "is not
22 making any claims as to any remuneration that should have been included in the regular rate but
23 wasn't for purposes of calculating overtime, including but not limited to spot awards, ACA
24 incentive payments, wellness incentive payments, and cash benefits provided to Health Net
25 employees." Long Decl. 110, Ex. H at 126:14-24. Arana's counsel confirmed his understanding
26 of this stipulation, stating, " I agree that is correct, and I agree and stipulate that as to my client
27 only and not any other putative class member, we are not contending that there is a regular rate
28 claim." M 110, Ex. Hat 126:25-127:3.
-8- .
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 in. ARGUMENT
2 A. ^ Arana Cannot Bring PAGA Claims on Behalf of Exempt Employees or Based
2 on Alleged Regular Rate Violations.
4 Arana has stipulated that he is not pursuing any claims—including PAGA claims—based
^ on allegations that HNCA miscalculated the regular rate of pay for him or any other employee.
6 Long Decl. 110, Ex. H at 126:14-127:3. Arana has ivather stipulated thai he is not pursuing a
7 PAGA representative action based on the alleged misclassification of any HNC A employees. Id.
8 110, Ex. H at 126:2-13. The result of this stipulation is that Arana has agreed that he is not
^ pursuing PAGA claims based bn any alleged meal period violations, rest period violations, or off-
I^ the-clock violations that occurred during the time that he was an exempt employee. Id.
II Accordingly, the Court must find that Arana's PAGA representative claims arising from these
12 alleged violations cannot proceed and should strike these claims.
13
B. Arana's PAGA Claims for Meal Period Violations, Rest Period Violations,
14 and Off-the-Clock Work Brought on Behalf of Non-Exempt Employees Are
Time-Barred.
15
16, Having lost summary judgment on his PAGA claims based pn alleged rounding practices
17 and having stipulated away his PAGA claims based on alleged regular rate violations and
1g HNCA's misclassification of exempt employees, Arana is left attempting to pursue PAGA claims
19 arising from the meal period violations, rest period violations, and off-the-clock violations
20 allegedly suffered by non-exempt employees. y
21 But this Arana cannot do, as these claims fall outside of the statute of limitations. "The
22 statute of limitations for PAGA claims is one year," looking back from the date the plaintiff files
23 his written notice with the LWDA. Brown, 28 Cal. App. 5th at 839 (citing Cal. Civ. Proc. Code
24 § 340(a)). Here, Arana filed his Written Notice on May 9, 2017. Grimson Ded. 13, Ex. A. For
25 Arana to pursue PAGA claims for meal period violations, rest period violations, and off-the-clock
26 violations that he allegedly experienced as a non-exenipt employee, those claimed violations must
27 have occurred on or after May 9,2016. They clearly did not, as Arana testified that he has been
28 an exempt employee since November of 2015. Long Ded. 110, Ex. H at 114:24-115:2; see also
-9-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD N O T PROCEED AS A PAGA REPRESENTATIVE ACTION
1 Grimson Decl. 13, Ex. A at 1. Thus, any alleged meal period violations, rest period violations, or
2 off-the-clock violations Arana experienced as a non-exempt employee occurred well outside of
3 the PAGA statute of limitations period and his claims arising from these alleged events are time-
4 barred.
5 ^ C. Arana Lacks Standing to Bring Claims in a Representative Capacity on
^ Behalf of Non-Exempt Employees Because He Is Not an "Aggrieved
Employee.''
7 "
g Because Arana's own PAGA claims for meal period violations, rest period Violations, and
9 off-the-clock violations arising from his employment as a non-exempt employee are time-barred,
10 he may not pursue PAGA claims in a representative capacity for other allegedly aggrieved non-
JJ exempt employees. As explained by the court in Thomas v Home Depot, Inc., 527 F. Supp. 2d
1003 (N.D. Cal. 2007), permitting a plaintiff to proceed with PAGA claims in a representative
12
J^ capacity when his own claims are barred by the statute of limitations would "eliminate[] any
meaningful statute of limitations for PAGA claims." Id. at 1009. Thus, in Thomas, the court held
14
that because the plaintiffs own claim was barred by the PAGA's statute of limitations, the
15
plairitiff could not pursue that claim on a representative basis in a PAGA action. Id. Likewise,
and more recently, the Central District of Caiifomia held in Gordon v. Aerotek, Inc., 2017 WL
Jg 8217410 (CD. Cal. Oct. 12,2017), that when a plaintiff was not employed in any of the positions
Jg that suffered alleged Labor Code violations during the PAGA's one-year statute of limitations,
2Q the employee lacked standing to bring PAGA representative claims. Id. at*3.
2^ The Thomas court's conclusion makes sense giyen the relevant statutory language. The
22 "PAGA imposes a standing requirement: to bring an action, one must have suffered harm."
2-j Williams v. Superior Court, 3 Cal. 5th 531, 558 (2017). "An action may be brought 'by an
2^ aggrieved employee on behalf of himself or herself and other current or former employees.'"
2^ Kim V. Reins Int'l. Cal., Inc., 18 Cal. App. 5th 1052, 1057 (2017) (quoting Cal. Lab. Code
2g § 2699(a)). The PAGA defines an "aggrieved employee" as "any person who was employed by
2y the alleged violator and against whom one or more of the alleged violations was committed."
2g Lab. Cbde § 2699(c) (emphasis added). The PAGA further states that "[a]ny provision of this
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MEMORANDUM OF POFNTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1. code that provides for a civil penalty to be assessed and collected by the [ L W D A ] . . . for a
2 violation of [the Labor Code] may, as an altemative, be recovered through a civil action brought
3 by an aggrieved employee on behalf of himself or herself and other current or former employees
4 pursuant to the pi-ocedures specified in Section 2699.3." Id. § 2699(a) (emphasis added).
5 Accordingly, inherent in the requirement that a PAGA representative be an "aggrieved employee"
6 is the requirement that PAGA representative must have suffered one or more "alleged violations"
7 giving rise to the PAGA claim. As a result of the one-year statute of limitations on PAGA
8 claims, events occurring outside ofthe one-year statute of limitations do not giyeriseto PAGA
9 claims and thus cannot constitute an "alleged violation." And, without suffering an "alleged
10 violation," a plaintiff cannot be an "aggrieved employee" under the statute. Id. § 2699(c); Kim,
11 18Cal. App. 5thatl058.
12 Under these clear requirements, there is no principled reason for permitting the plaintiff to
13 proceed with claims on behalf of other employees when the plaintifPs individual claims would be
14 barred by the PAGA's statute of limitations. Cf Gordon, 2017 WL 8217410, at *4. Just as the
15 court found in Thomas, any holding to the contrary would eviscerate the PAGA's one-year statute
16 of limitations; 527 F. Supp. 2d at 1009.
17 Thus, here, while Arana allegedly suffered meal period violations, rest period violations,
18 and worked off-the-clock with HNCA's knowledge while he was employed as a non-exempt
19 employee, those supposed violations occurred well outside of the PAGA statute of limitations
20 period. Arana therefore did not suffer an "alleged violation" that can support a PAGA claim and
21 thus is not an "aggrieved employee." Arana thus cannot bring claims in a representative capacity
22 under the PAGA on behalf of allegedly aggrieved non-exempt employees, and the Court must
23 strike these claims from the Consolidated Complaint.
24
25
26
27
28
-n
MEMORANDUM OF POINTS AND AUTHORITIES FN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 D. Even If Arana Had Standing Pursue PAGA Claims, His PAGA Claims for
Meal Period Violations.] Rest Period Violations,] and Off-the-Clock Violations
. —
^ Must Be Stricken as Unmanageable.
3 Even if the Court were to find that Arana had standing to pursue PAGA claims for meal
4 period violations, rest period violations, or off-the-clock violations, those claims must nonetheless
^ be stricken because they are unmanageable. As explained in thCiSpears Motion, filed
6 concurrently herewith, a plainfiffhas the burden to demonstrate that claims brought in a
7 representative capacity do not pose manageability problems for the Court. See Williams, 3 Cal.
^ 5th at 559 (stating that a plaintiff bringing a PAGA representative action must "render trial of the
^ action manageable."); S. Bay Chevrolet v. General Motors Acceptance Corp., 72 Cal. App. 4th
10 861, 897 (1999); Bronco Wine Co. v. Loguso Farms, 214 Cal. App. 3d 699, 720-21 (1989).
11 Where the proof necessary for a plaintiff to prevail on his representative claims is highly
12 individualized, involves complex factual issues, and those claims will involve significant
13 managernent problems for the court, the Court may strike those claims. 72 Cal. App. 4th at 897;
14 214Cal. App. 3dat720.
15 Here, Arana—like Spears—cannot meet that burden for the alleged meal and rest period
16 violations. Arana seeks to represent approximately 3,650 allegedly aggrieved employees. Rodes
17 Decl. 15. The evidence necessary to prove those alleged violations for each of the approximately
18 3,650 allegedly aggrieved employees varies widely, involves factually complex issues, and would
19 require months of highly individualized mini-trials, thereby posing serious management problems
20 for the Court. Spears Mot. 8-16.^*
21 Nor will it be manageable for Arana to establish on a representative basis that HNCA
22 caused allegedly aggrieved employees to work off the clock. Instead, for every asserted violation
23 for each employee, Arana has the burden to prove by a preponderance ofthe evidence that the
24 violation occurred. See Williams, 3 Cal. 5th at 547-48. As with the meal and rest period claims,
25 proving each alleged off-the-clock violation would entail months of testimony on a wide array of
26 highly individualized issues due to the nature of such claims and the vastly divergent factual
27
28 HNCA incorporates by reference the Spears Motion and the evidence submitted in support thereof
-12-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 circumstances surrounding each allegedly aggrieved employee's employment. Critically, to
2 prevail on his off-the-clock claim, Arana must not only prove that he and each of the
3 approximately 3,650 allegedly aggrieved employees worked off the clock, but that HNCA had
4 actual or constmctive knowledge of each allegedly aggrieved employee's off-the-clock work,
5 each time it occurred. See Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578, 585 (2000).
6 Arana's burden is made even more difficult by the fact that when "employees are clocked out," a
7 presumption arises "that they are doing no work," which Arana has "the burden to rebut."
8 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1051 (2012).
9 Arana's effort to represent such a widely divergent group of allegedly aggrieved
10 employees is made even more difficult by the fact that HNCA's policies have always been to
11 require that employees record their actual in and out times.^ Rodes Decl. 16; Summary of
12 Evidence - Factual Statement ("FS") 1. Any off-the-clock violations that did occur were
13 therefore not the result of noncompliant company policies but were instead the result of
14 individual circumstances that must be examined on a case-by-case basis. Thus, while Arana's
15 Written Notice alleges that employees experienced delays of up to 30 minutes "at the ,beginning
16 of each shift," when they "were required to. boot up their computers . . . , log in with their
17 credentials, wait for the computer to finish booting up, and eventually start the program that
18 would allow them to clock in for the day," and alleges that HNCA did not pay for this time,
19 Grimson Ded. 13, Ex. A at 10, these allegations are inconsistent with HNCA's policies. Indeed,
20 HNCA's timekeeping system has always permitted employees to manually type in their start and
21 stop times and HNCA's policies required Arana and all other call center employees to accurately
22 enter their time. Rodes Decl. H 6-7, Ex. A; FS 2. Arana himselftestified that he "understood
23 that the company policy was for [him] to accurately record the time [he] worked," and that "[he]
24 was instmcted to put in [his] actual time[,] which [he] did . . . . " Long Decl. 110, Ex. H at 56:20-
25 23, 57:21-23. This "include[d] when [he] started^work, [and] when and if [he] took a meal
26
^ For the Court's convenience, HNCA has filed a Compendium of Evidence and a Summary of Evidence in support
27 ofthis motion, and the concurtentlyfiledmotion related to Plaintiff Spears' claims. The Compendium of Evidence
organizes the numerous declarations submitted as factual support for the two motions, while the Summary of
^° Evidence provides a summary of the facts set forth in those declarations.
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MEMORANDUM OF POFNTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 break." Id. 110, Ex. H at 57:24-58:1. Arana agreed that "the expectation of the company was
2 that [he] accurately recorded the hours that [he] worked," and that he did that "to the best of [his]
3 ability." Id. 110, Ex. H at 58:6-11. Thus, even assuming some employees experienced a half-
4 hour delay in logging into various computer systems, HNCA's policies required those employees
5 to enter their start time as the time they tumed on their computers or otherwise conimenced work,
6 and system delays would not have prevented them from manually entering the correct time. FS 3.
7 Given that HNCA's policies required as much, it is unsurprising that many employees
8 followed this protocol at all relevant times. FS 3. For example, Brooke Mouton, a Customer
9 Service Representative Lead in Rancho Cordova, first tums on her computer and then clocks in
10 for timekeeping purposes. Decl. of Brooke Mouton 110. She then opens the programs that she
11 needs to perform her work. Id. 111. If there is an issue with her computer, Ms. Mouton informs
12 her supervisor and logs that time manually in the system and is paid for it. /ti. 113. Ms. Mouton
13 understands that she is in control of reporting her hours accurately, including the time it takes to
14 get various programs up and running, and the time it takes to shut her computer down. See id. H
15 7-13. Likewise, Rocio Ramirez, a CSR II in Woodland Hills, clocks in when he arrives at work.
16 Ded. of Rocio Ramirez H 1, 20. While Mr. Ramirez previously logged his time manually, he
17 now does so using a button in the EMPCenter program. Id. 120. Mr. Ramirez only opens other
18 programs after he has clocked in. Id. 122. Closing his programs takes several minutes; after he
19 has dosed his programs, Mr. Ramirez clocks out. M 124.
20 Moreover, at all relevant times HNCA employees were trained to review their time for
21 accuracy each week, FS 4, and many supervisors checked employees' time sheets to ensure
22 employees' time was recorded accurately, FS 5. For example, the supervisors of Rocio Cabrales,
23 who is currently a Membership Analyst II in Woodland Hills but was previously an Eligibility
24 Representative I, II, and II, and a Commissions Specialist, among other roles, reviewed his
25 timesheets for accuracy every two weeks. Decl. of Rocio Cabrales 111,4, 5, 22. Many
26 employees, such as Christalex Mendoza, also reported delays to their supervisors and informed
27 their supervisors of the time they actually started work. Decl. of Christalex Mendoza 113; FS 6.
28 Other call center employees did not experience any delays at all when starting their computers or
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 logging in and out of the phone system. FS 7. Some call center employees did not have to log _
2 into the phone system, and thus would not have experienced these alleged delays. FS 8. Finally,
3 the system for clocking time changed in 2017. Rodes Decl. 1 7. While employees previously
4 logged their time manually, beginning in 2017 employees began using EMPCenter to
5 electronically log their time with the click of a button. Id.; see also FS 9.
6 As this evidence makes clear, even for the employees working in call centers there are
7 potentially significant factual differences that would impact whether employees ever worked off
8 the clock, under what circumstances such work occurred, and whether HNCA had reason to know
9 that work occurred. This is to say nothing of employees who worked at non-call center locations.
10 Many of these employees experienced virtually no delays with their log-in process, and thus did
11 not work off-the-clock as the result of supposed log-in delays. FS 10. For example, Maira
12 Castaneda works as a Concurrent Review Lead in the Concurrent Review Unit of the Medical
13 Management Departrnent in Woodland Hills. Decl. of Maira Castaneda 1 1 . It takes
f • . -
14 Ms. Castaneda a matter of seconds to open and close her computer program; likewise, the process
15 for her to record her time in the web-based EMPCenter program takes mere seconds. Id. 118,
16 18. By contrast, it takes Tracy Raitt, a Project Coordinator in the Case Management Department
17 in Woodland Hills, a few minutes to log out of the system. Declaration of Tract Raitt H 1,18.
18 Ms. Raitt previously manually recorded her time, and now uses an electronic system to do so. Id.
19 1116,17. Yet regardless of which system she has used to track her time, Ms, Raitt never worked
20 off the dock or worked hours she has not reported, /rf. 119.
21 The resolution of these issues as to one individual employee in no way represents or could
22 be extrapolated to the experience of any other employee. During the relevant time period,
23 employees worked in approximately 352 differentjob titles, at 26 different locations, under
24 approximately 526 different managers. Rodes Decl. 15. For Arana to meet his burderi of
25 proving each individual off-the-clock violation for which he seeks penalties under the PAGA, the
26 Court would have to conduct mini-trials for all 3,650 employees to determine whether and when
27 that particular employee worked off the clock, as well as whether management had reason to
28 know that employee had worked without pay. Thus, not only is the proof necessary to establish
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 that the allegedly aggrieved employees worked off-the-clock highly individualized, but
2 establishing HNCA's liability for this claim necessarily involves complex factual issues and
3 poses significant management problems for the Court. S. Bay Chevrolet, 72 Cal. App. 4th at 897;
4 Bronco Wine, 214 Cal. App.' 3d at 720. Arana's PAGA claims arising from alleged off-the-clock
5 work are therefore unmanageable and carmot be resolved on a representative basis.
6 IV. CONCLUSION
7 It bears repeating: by his own stipulation, Arana suffered absolutely no Labor Code
8 violations during the PAGA limitations period for which he can or will pursue PAGA claims.
9 And, even if Arana had standing to pursue a PAGA claim for HNCA's alleged meal period
10 violations, rest period violations, or for off-the-clock work, those claims are unmanageable and
11 cannot proceed on a representative basis. The Court must therefore find that Arana's claims
12 should not proceed as a PAGA representative action and must strike Arana's PAGA claiiris.
13 Dated: December 21,2018 ' ORRICK^, ^iERRINGTON & SUTCLIFFE LLP
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T I M O ^ Y J. LONG
16 N I C H O L A S J. H O R T O N
Attomeys for Defendant
1' HEALTH NET OF CALIFORNIA, INC.
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MEMORANDUM OF POINTS AND AUTHORITIES FN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
Preview
fcorp 1 TIMOTHY J. LONG (STATE BARNO. 137591) idrlLE^ • tjlong@orrick.com 2. NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com 3 ORRICK, HERRINGTON & SUTCLIFFE LLP DEC 2 1 2018 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 By 1 Mripr Telephone: +1 916 447 8299 Deputy Clerk 5 Facsimile: +1 916 329 4900 6 Attomeys for Defendant 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- of herself and on behalf of all persons CU-OE-GDS 11 similarly situated, i Plaintiff, 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION 14 Caiifomia Corporation; and Does 1 through 50, inclusive. Date: April 11,2019 15 Time: 10:00 a.m. Defendants. Dept: . 35 16 Judge: Hon. Alan G. Perkins 17 Complaint Filed: April 5,2017 FAC Filed: June 29, 2017 18 19 TOMAS R. ARANA, on behalf of himself, all others similarly situated. Complaint Filed: .August 1,2017 Consolidated Complaint Filed: Dec. 21, 2017 20 Plaintiff, 21 22 HEALTH NET OF CALIFORNIA, INC., a 23 Caiifomia corporation; and DOES 1-50, inclusive, " 24 Defendant. < 25 Z- 26 2 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 TABLE OF CONTENTS 2 Page 3 L INTRODUCTION.... : ....4 IL FACTUAL AND PROCEDURAL BACKGROUND 5 4 A. HNCA Employs Arana at Its Rancho Cordova Center 5 5 B. Arana Filed His Written Nbtice With the LWDA Asserting Six Claims and Then Asserted Those Claims in Court 5 C. The Court Grants Summary Adjudication on Arana's Rounding and Shift 7 Differential Claims, and Arana Clarifies That He Is Not Pursuing Representative Claims Based on Alleged Misclassification or Improper g Calculation of His Regular Rate ...8 IIL ARGUMENT...! 9 9 A. Arana Cannot Bring PAGA Claims on Behalf of Exempt Employees or IQ Based on Alleged Regular Rate Violations : 9 B. Areina's PAGA Claims for Meal Period Violations, Rest Period Violations, 11 and Off-the-Clock Work Brought on Behalf of Non-Exempt Employees Are Time-Barred : 9 12 C. Arana Lacks Standing to Bririg Claims in a Representative Capacity on 13 Behalf of Non-Exempt Employees Because He Is Not an "Aggrieved Employee." ; 10 14 D. Even If Arana Had Standing Pursue PAGA Claims, His PAGA Claims for 15 Meal Period Violations, Rest Period Violations, and Off-the-Clock Violations Must Be Stricken as Unmanageable 12 16 IV. CONCLUSION 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- MEMORANDUM OF POINTS AND AUTHORITI ES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Brinker Rest Corp. v. Superior Court, 5 53 CaL 4th 1004 (2012) 13 6 Bronco Wine Co. v. Loguso Farms, 214 Cal. App. 3d 699 (1989) 12, 16 7 Brown v. Ralphs Grocery Co., 8 28 Cal. App. 5th 824, 829 (2018) , ...6, 9 9 Gordon v. Aerotek, Inc., 2017 WL 8217410 (CD. Cal. Oct. 12, 2017)..... 10, 11 10 11 Kim V. Reins Int'I. Cal., Inc., 18 CaL App. 5th 1052, 1057 (2017) 10, 11 12 Morillion v. Royal Packing Co., 13 22 Cal. 4th 575 (2000) : 13 14 S. Bay Chevrolet v. General Motors Acceptance Corp.. 72 Cal. App. 4th 861 (1999) 12, 16 15 16 Thomas v Home Depot, Inc., 527 F. Supp. 2d 1003 (N.D. Cal. 2007) ...10, 11 17 Williams v. Superior Court, 18 3 CaL 5th 531, 558 (2017) 10,12 19 Statutes 20 Cal. Lab. Code § 2699(a) 11 21 California's Unfair Competition Law 6, 7 22 Lab. Code § 2699(c)... : 10, 11 23 Labor Code passim 24 Labor Code § 256 6 25 Labor Code § 558 6 26 LaborCode § 1199 , 6 27 LaborCode § 2699.3 4, 5, 11 28 -3- MEMORANDUM OF POfNTS AND AUTHORITIES FN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 I. INTRODUCTION 2 A PAGA action is framed by the claims asserted by a PAGA plaintiff in the written notice 3 he is required to file with the Labor and Workforce Development Agency ("LWDA") pursuant to 4 Labor Code section 2699.3 before pursing his claim in court. If the plaintiff did not assert a claim 5 in that written notice, he caimot pursue that claim under the PAGA in court. Likewise, if the 6 PAGA claims he asserted in the written notice are time-barred, he cannot pursue those claims in 7 court. 8 In this matter. Plaintiff Tomas Arana asserted six PAGA claims against Defendant Health 9 Net of Caiifomia, Inc. ("HNCA") in his written notice to the LWDA ("Written Notice"): (1) 10 HNCA's rounding policies resulted in employees' time being inaccurately recorded and, as a 11 result, inaccurately paid (2) HNCA improperly classified certain employees as being exempt from 12 overtime; (3) HNCA incorrectly calculated employees' regular rate of pay by failing to include 13 non-discretionary bonuses and "other remuneration" in that rate; (4) HNCA knew or should have 14 known that employees were working off the clock and were not being compensated for that time; 15 (5) HNCA violated the Labor Code's requirement to provide meal breaks, and (6) HNCA violated 16 the Labor Code's requirements to provide rest breaks. These claims form the basis for the 17 allegations Arana originally filed against HNCA, which were later incorporated into the 18 Consolidated Complaint filed with this Court. 19 Arana is not pursuing the misclassification claims on a representative (or class) basis, as 20 his counsel recently confirmed on the record during Arana's deposition.' Arana's counsel 21 likewise stipulated that Arana is not pursuing the regular rate claim on an individual or 22 representative basis. The Court has granted summary judgment for HNCA on Arana's rounding 23 policies claim. The remaining three claims—^meal period, rest period, and off-the-clock claims— 24 apply only to non-exempt employees, as the result of Arana's stipulation that he is not pursuing 25 PAGA or class claims based on the theory that he, or anyone else, was improperly classified as an 26 exempt employee. These claims are time-barred because while Arana at one time held a non- 27 28 ' HNCA understands Arana's stipulation to mean that he has retained the right to pursue an individual claim that he has been misclassified as an exempt employee. MEMORANDUM OF POFNTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 exempt position at HNCA, it was more than one year before he filed his Written Notice with the 2 LWDA. And, even if these claims were not time-barred, they cannot proceed on a representative 3 basis. Not only is the proof necessary for Arana to present these claims not uniform, but these 4 claims involve the resolution of complex factual issues and pose serious management problems 5 for the court. 6 Because Arana has no viable PAGA claims, he carmot proceed with a PAGA 7 representative action. HNCA therefore respectfully requests that the Court decline Arana's 8 request to proceed as a representative for PAGA claims.'^ 9 II. FACTUAL AND PROCEDURAL BACKGROUND 10 A. HNCA Employs Arana at Its Rancho Cordova Center. 11 HNCA is a health maintenance organization that operates here in Sacramento County, as 12 well as in Southem Caiifomia. Decl. of Diane C. Rodes ISO Motion Why Arana's Case Should 13 Not Proceed as a PAGA Representative Action ("Rodes DecL") TI 2. HNCA provides health 14 insurance products such as commercial HMO plans and healthcare service plans. Id. 15 Arana is currently employed by HNCA at its Sun Center, Rancho Cordova facility. Rodes 16 Decl. TI 3. Arana was hired in 2008 as a non-exempt employee. Decl. of Timothy J. Long ISO 17 Motion Why Arana's Case Should Not Proceed as a PAGA Representative Action ("Long DecL") 18 TI 10, Ex. H at 101:15-17; Rodes Decl. TI 3. He remained a non-exempt employee until he was 19 promoted effective November 15,2015, to the exempt position (Contact Center Analyst) he 20 currently holds. Long Decl. TI 10, Ex. H at 114:24-115:2; Rodes Decl. 13. 21 B. Arana Filed His Written Notice With the LWDA Asserting Six Claims and Then Asserted Those Claims in Court. 22 23 On May 9, 2017, Arana filed his Written Notice with the LWDA pursuant to Labor Code 24 section 2699.3. Decl. of Juliet Grimson ISO Motion Why Arana's Case Should Not Proceed as a 25 PAGA Representative Action ("Grimson DecL") TI 3, Ex. A. Arana's Written Notice asserted six 26 27 28 >• ^ Concurrently with this motion, HNCA has filed a similar motion addressing the propriety of Spears' case proceeding as a PAGA representative action (the "Spears Motion"). While Spears and Arana are proceeding under a consolidated ultimately AS TO complaint, distinct WHY the they MEMORANDUMresulteach asARANA'S of CASEpurport having OFSHOULDto bring POINTS filed PAGA separate NOT AND -5-representative PROCEED written AUTHORITIES notices AS A INclaims, •asserting PAGA and their SUPPORT separate PAGA • REPRESENTATIVE OFclaims MOTIONclaims with the are ACTION LWDA. 1 PAGA claims. He claimed that HNCA's rounding policies resulted in employees' time being 2 inaccurately recorded and, as a result, inaccurately paid. Id. TI 3, Ex. A at 10. He further asserted 3 that HNCA incorrectly calculated employees' regular rate of pay by failing to include non- 4 discretionary bonuses and other remuneration in that rate. M Tl 3, Ex. A at 9-10. He further 5 claimed that HNCA improperly classified certain employees as being exempt from overtime. Id. 6 Tl 3, Ex. A at 3, 6, 9. He also claimed that HNCA violated the Labor Code's requirements to 7 provide meal breaks and rest breaks. Id. TI 3, Ex. A at 2-10. Finally, he asserted that HNCA knew 8 or should have known that employees were working off the clock and were not being 9 compensated for that time. Id. \ 3, Ex. A at 10. These claims form the basis for the allegations 10 Arana originally filed against HNCA, which were later incorporated into the Consolidated 11 Complaint filed with this Court. See Long Decl. TITI 3, 7, Exs. B, F. Arana's Written Notice 12 further asserted a number of derivative claims, namely that HNCA failed to pay premium wages 13 at the regular rate ofpay, failed to provide accurate written wage statements, provided late or 14 incomplete final wages to discharged employees, and is liable for penalties under Labor Code 15 sections 558, 1199, and 256. Grimson Decl. T| 3, Ex. A at 11-18. The law is clear that Arana's 16 Written Notice defined and limited the claims he could pursue under the PAGA in court. See, 17 e.g. Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 829 (2018) (a plaintiff may not later 18 pursue PAGA penalties for additional claimed violations not included in the plaintiffs LWDA 19 notice). 20 On May 11,2017, Arana filed a complaint in the Superior Court of Santa Clara, but the 21 parties stipulated to dismissal of that complaint without prejudice so that it could be refiled in this 22 Court. Long Decl. TI 2, Ex, A. On August 1, 2017, Arana filed his lawsuit against HNCA in this 23 Court, alleging meal period violations, rest period violations, misclassification of exempt 24 employees, rounding violations, off-the-clock violations, and failure to correctly calculate 25 employees' regular rate of pay based on the failure to include "among other things, non- 26 discretionary bonuses and/or shift differential pay" in the regular rate. Id. TI 3, Ex. B at 5-9. As 27 derivative claims, Arana asserted that HNCA failed to provide accurate written wage statements, 28 failed to pay all final wages, and violated Califomia's Unfair Competition Law. Id. TI 3, Ex. B at -6- MEMORANDUM OF POfNTS AND AUTHORITIES FN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 Til 70-113. Arana's complaint did not assert any claims under the PAGA. 2 In December 2017, following the Court's order consolidating Arana's case with Spears' 3 case for all purposes, the parties filed a Consolidated Complaint. Long Decl. TITI 6, 7, Exs. E, F. 4 The Consolidated Complaint asserts causes of action against HNCA arising from same basic 5 categories of claimed Labor Code violations as alleged in Arana's Written Notice to the LWDA.'^ 6 First, the Consolidated Complaint claims that HNCA used improper rounding practices. Id. TI 7, 7 Ex. F at TITI 34T35. Second, the Consolidated Complaint asserts that HNCA failed to pay non- 8 exempt employees the correct amount of overtime by failing to include "cash in lieu of benefits" 9 and non-discretionary bonuses in the regular rate of pay. Id. TI 7, Ex. F at TITI 40-41. Third, the 10 Consolidated Complaint asserts that HNCA misdassified certain employees and, as a result, those 11 employees were not provided meal and rest periods, were not paid overtime, and were not paid 12 adequate houriy wages. M. TI 7, Ex. F at TITI 11, 31-33, 50-54, 64-67, 84-85, 93. Fourth, the 13 Consolidated Cbmplaint contends that HNCA failed to provide non-exempt employees with 14 compliant meal periods and second meal periods and failed to provide premium pay to non- 15 exempt employees when meal periods were missed. Id. \ 7 , Ex. F at TITI 42-56. Fifth, the 16 Consolidated Complaint asserts that HNCA failed to provide non-exempt employees with 17 compliant rest periods and failed to pay employees premium pay when rest periods were missed. 18 Id. TI 7, Ex. F at Til 57-69. And sixth, the Consolidated Complaint alleges that HNCA employees 19 were working off the clock and were not being compensated for that time. Id. 17, Ex. F at H 22- 20 30. 21 The Consolidated Complaint includes additional causes of action that are derivative of 22 these alleged violations. The Consolidated Complaint asserts that HNCA provided inaccurate 23 wage statements, Long Decl. 17, Ex. F at H 95-109, failed to pay all former employees all final 24 wages owed within 72 hours of their last date of employment, id. 17, Ex. F at H 110-120, and 25 violated Califomia's Unfair Competition Law, id. 17, Ex. F at H 121-138. This laundry list of 26 ^ In October 2017, Arana attempted tofilea First Amended Complaint containing a cause of action for civil pena under the PAGA, but thatfilingwas rejected by the Court. Long Decl. Tl 4, Ex. C. Thus, it was not until Arana's case was consolidated with Spears' and the Court permitted the parties tofilea Consolidated Complaint (contain the PAGA claims Arana alleged in his rejected FAC) that Aranafileda pleading setting forth his PAGA claims. S 2<* id\6,E\.E. -7- MEMORANDUM OF POINTS AND AUTHORITIES FN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 alleged Labor Code violations provides the basis for the PAGA claim alleged in the Consolidated 2 Complaint. M. 17, Ex. F at 1144. 3 G. The Court Grants Summarv Adjudication on Arana's Rounding and Shift Differential Claims, and Arana Clarifies That He Is Not Pursuing 4 Representative Claims Based on Alleged Misclassification or Improper Calculation of His Regular Rate 5 , 6 On October 23,2018, the Court granted summary adjudication for HNCA on Plainfiffs' 7 claims—including Plaintiffs' PAGA claims—Ewising from HNCA's alleged rounding practices 8 and alleged failure to include shift differential premiums in the regular rate of pay. Long Decl. 9 18, Ex. G at 9. Shortly thereafter, on December 3, 2018, HNCA deposed Arana. Id. 110. At the 10 deposition, Arana stipulated through counsel, on the record, that he is not pursuing any PAGA 11 representative claims (or class clainis) on behalf of allegedly misdassified employees. 12 Specifically, the parties stipulated as follows: 13 Mr. Long: First point, counsel and 1 had agreed on the record with regard to a stipulation pertaining to Mr. Arana's exemption claims. 14 We've refined that and clarified that Mr. Arana will not be moving to certify any claim based on an allegation that an individual was 15 improperly classified as an exempt employee, as well as all claims - - as well as all PAGA claims, P-A-G-A in all caps, that are 16 derivative of such claims, meaning to the extent they arise out of somebody being allegedly misclassified. MR. LEVIANT: And I agree with that statement and stipulate to 18 that agreement. 19. 7i/. l 10,Ex. Hat 126:2-13. 20 The parties further stipulated that, with respect to "claims in the lawsuit having to do with 21 the proper calculation of the regular rate for purposes of calculating overtime," Arana "is not 22 making any claims as to any remuneration that should have been included in the regular rate but 23 wasn't for purposes of calculating overtime, including but not limited to spot awards, ACA 24 incentive payments, wellness incentive payments, and cash benefits provided to Health Net 25 employees." Long Decl. 110, Ex. H at 126:14-24. Arana's counsel confirmed his understanding 26 of this stipulation, stating, " I agree that is correct, and I agree and stipulate that as to my client 27 only and not any other putative class member, we are not contending that there is a regular rate 28 claim." M 110, Ex. Hat 126:25-127:3. -8- . MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 in. ARGUMENT 2 A. ^ Arana Cannot Bring PAGA Claims on Behalf of Exempt Employees or Based 2 on Alleged Regular Rate Violations. 4 Arana has stipulated that he is not pursuing any claims—including PAGA claims—based ^ on allegations that HNCA miscalculated the regular rate of pay for him or any other employee. 6 Long Decl. 110, Ex. H at 126:14-127:3. Arana has ivather stipulated thai he is not pursuing a 7 PAGA representative action based on the alleged misclassification of any HNC A employees. Id. 8 110, Ex. H at 126:2-13. The result of this stipulation is that Arana has agreed that he is not ^ pursuing PAGA claims based bn any alleged meal period violations, rest period violations, or off- I^ the-clock violations that occurred during the time that he was an exempt employee. Id. II Accordingly, the Court must find that Arana's PAGA representative claims arising from these 12 alleged violations cannot proceed and should strike these claims. 13 B. Arana's PAGA Claims for Meal Period Violations, Rest Period Violations, 14 and Off-the-Clock Work Brought on Behalf of Non-Exempt Employees Are Time-Barred. 15 16, Having lost summary judgment on his PAGA claims based pn alleged rounding practices 17 and having stipulated away his PAGA claims based on alleged regular rate violations and 1g HNCA's misclassification of exempt employees, Arana is left attempting to pursue PAGA claims 19 arising from the meal period violations, rest period violations, and off-the-clock violations 20 allegedly suffered by non-exempt employees. y 21 But this Arana cannot do, as these claims fall outside of the statute of limitations. "The 22 statute of limitations for PAGA claims is one year," looking back from the date the plaintiff files 23 his written notice with the LWDA. Brown, 28 Cal. App. 5th at 839 (citing Cal. Civ. Proc. Code 24 § 340(a)). Here, Arana filed his Written Notice on May 9, 2017. Grimson Ded. 13, Ex. A. For 25 Arana to pursue PAGA claims for meal period violations, rest period violations, and off-the-clock 26 violations that he allegedly experienced as a non-exenipt employee, those claimed violations must 27 have occurred on or after May 9,2016. They clearly did not, as Arana testified that he has been 28 an exempt employee since November of 2015. Long Ded. 110, Ex. H at 114:24-115:2; see also -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD N O T PROCEED AS A PAGA REPRESENTATIVE ACTION 1 Grimson Decl. 13, Ex. A at 1. Thus, any alleged meal period violations, rest period violations, or 2 off-the-clock violations Arana experienced as a non-exempt employee occurred well outside of 3 the PAGA statute of limitations period and his claims arising from these alleged events are time- 4 barred. 5 ^ C. Arana Lacks Standing to Bring Claims in a Representative Capacity on ^ Behalf of Non-Exempt Employees Because He Is Not an "Aggrieved Employee.'' 7 " g Because Arana's own PAGA claims for meal period violations, rest period Violations, and 9 off-the-clock violations arising from his employment as a non-exempt employee are time-barred, 10 he may not pursue PAGA claims in a representative capacity for other allegedly aggrieved non- JJ exempt employees. As explained by the court in Thomas v Home Depot, Inc., 527 F. Supp. 2d 1003 (N.D. Cal. 2007), permitting a plaintiff to proceed with PAGA claims in a representative 12 J^ capacity when his own claims are barred by the statute of limitations would "eliminate[] any meaningful statute of limitations for PAGA claims." Id. at 1009. Thus, in Thomas, the court held 14 that because the plaintiffs own claim was barred by the PAGA's statute of limitations, the 15 plairitiff could not pursue that claim on a representative basis in a PAGA action. Id. Likewise, and more recently, the Central District of Caiifomia held in Gordon v. Aerotek, Inc., 2017 WL Jg 8217410 (CD. Cal. Oct. 12,2017), that when a plaintiff was not employed in any of the positions Jg that suffered alleged Labor Code violations during the PAGA's one-year statute of limitations, 2Q the employee lacked standing to bring PAGA representative claims. Id. at*3. 2^ The Thomas court's conclusion makes sense giyen the relevant statutory language. The 22 "PAGA imposes a standing requirement: to bring an action, one must have suffered harm." 2-j Williams v. Superior Court, 3 Cal. 5th 531, 558 (2017). "An action may be brought 'by an 2^ aggrieved employee on behalf of himself or herself and other current or former employees.'" 2^ Kim V. Reins Int'l. Cal., Inc., 18 Cal. App. 5th 1052, 1057 (2017) (quoting Cal. Lab. Code 2g § 2699(a)). The PAGA defines an "aggrieved employee" as "any person who was employed by 2y the alleged violator and against whom one or more of the alleged violations was committed." 2g Lab. Cbde § 2699(c) (emphasis added). The PAGA further states that "[a]ny provision of this -10- MEMORANDUM OF POFNTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1. code that provides for a civil penalty to be assessed and collected by the [ L W D A ] . . . for a 2 violation of [the Labor Code] may, as an altemative, be recovered through a civil action brought 3 by an aggrieved employee on behalf of himself or herself and other current or former employees 4 pursuant to the pi-ocedures specified in Section 2699.3." Id. § 2699(a) (emphasis added). 5 Accordingly, inherent in the requirement that a PAGA representative be an "aggrieved employee" 6 is the requirement that PAGA representative must have suffered one or more "alleged violations" 7 giving rise to the PAGA claim. As a result of the one-year statute of limitations on PAGA 8 claims, events occurring outside ofthe one-year statute of limitations do not giyeriseto PAGA 9 claims and thus cannot constitute an "alleged violation." And, without suffering an "alleged 10 violation," a plaintiff cannot be an "aggrieved employee" under the statute. Id. § 2699(c); Kim, 11 18Cal. App. 5thatl058. 12 Under these clear requirements, there is no principled reason for permitting the plaintiff to 13 proceed with claims on behalf of other employees when the plaintifPs individual claims would be 14 barred by the PAGA's statute of limitations. Cf Gordon, 2017 WL 8217410, at *4. Just as the 15 court found in Thomas, any holding to the contrary would eviscerate the PAGA's one-year statute 16 of limitations; 527 F. Supp. 2d at 1009. 17 Thus, here, while Arana allegedly suffered meal period violations, rest period violations, 18 and worked off-the-clock with HNCA's knowledge while he was employed as a non-exempt 19 employee, those supposed violations occurred well outside of the PAGA statute of limitations 20 period. Arana therefore did not suffer an "alleged violation" that can support a PAGA claim and 21 thus is not an "aggrieved employee." Arana thus cannot bring claims in a representative capacity 22 under the PAGA on behalf of allegedly aggrieved non-exempt employees, and the Court must 23 strike these claims from the Consolidated Complaint. 24 25 26 27 28 -n MEMORANDUM OF POINTS AND AUTHORITIES FN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 D. Even If Arana Had Standing Pursue PAGA Claims, His PAGA Claims for Meal Period Violations.] Rest Period Violations,] and Off-the-Clock Violations . — ^ Must Be Stricken as Unmanageable. 3 Even if the Court were to find that Arana had standing to pursue PAGA claims for meal 4 period violations, rest period violations, or off-the-clock violations, those claims must nonetheless ^ be stricken because they are unmanageable. As explained in thCiSpears Motion, filed 6 concurrently herewith, a plainfiffhas the burden to demonstrate that claims brought in a 7 representative capacity do not pose manageability problems for the Court. See Williams, 3 Cal. ^ 5th at 559 (stating that a plaintiff bringing a PAGA representative action must "render trial of the ^ action manageable."); S. Bay Chevrolet v. General Motors Acceptance Corp., 72 Cal. App. 4th 10 861, 897 (1999); Bronco Wine Co. v. Loguso Farms, 214 Cal. App. 3d 699, 720-21 (1989). 11 Where the proof necessary for a plaintiff to prevail on his representative claims is highly 12 individualized, involves complex factual issues, and those claims will involve significant 13 managernent problems for the court, the Court may strike those claims. 72 Cal. App. 4th at 897; 14 214Cal. App. 3dat720. 15 Here, Arana—like Spears—cannot meet that burden for the alleged meal and rest period 16 violations. Arana seeks to represent approximately 3,650 allegedly aggrieved employees. Rodes 17 Decl. 15. The evidence necessary to prove those alleged violations for each of the approximately 18 3,650 allegedly aggrieved employees varies widely, involves factually complex issues, and would 19 require months of highly individualized mini-trials, thereby posing serious management problems 20 for the Court. Spears Mot. 8-16.^* 21 Nor will it be manageable for Arana to establish on a representative basis that HNCA 22 caused allegedly aggrieved employees to work off the clock. Instead, for every asserted violation 23 for each employee, Arana has the burden to prove by a preponderance ofthe evidence that the 24 violation occurred. See Williams, 3 Cal. 5th at 547-48. As with the meal and rest period claims, 25 proving each alleged off-the-clock violation would entail months of testimony on a wide array of 26 highly individualized issues due to the nature of such claims and the vastly divergent factual 27 28 HNCA incorporates by reference the Spears Motion and the evidence submitted in support thereof -12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 circumstances surrounding each allegedly aggrieved employee's employment. Critically, to 2 prevail on his off-the-clock claim, Arana must not only prove that he and each of the 3 approximately 3,650 allegedly aggrieved employees worked off the clock, but that HNCA had 4 actual or constmctive knowledge of each allegedly aggrieved employee's off-the-clock work, 5 each time it occurred. See Morillion v. Royal Packing Co., 22 Cal. 4th 575, 578, 585 (2000). 6 Arana's burden is made even more difficult by the fact that when "employees are clocked out," a 7 presumption arises "that they are doing no work," which Arana has "the burden to rebut." 8 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1051 (2012). 9 Arana's effort to represent such a widely divergent group of allegedly aggrieved 10 employees is made even more difficult by the fact that HNCA's policies have always been to 11 require that employees record their actual in and out times.^ Rodes Decl. 16; Summary of 12 Evidence - Factual Statement ("FS") 1. Any off-the-clock violations that did occur were 13 therefore not the result of noncompliant company policies but were instead the result of 14 individual circumstances that must be examined on a case-by-case basis. Thus, while Arana's 15 Written Notice alleges that employees experienced delays of up to 30 minutes "at the ,beginning 16 of each shift," when they "were required to. boot up their computers . . . , log in with their 17 credentials, wait for the computer to finish booting up, and eventually start the program that 18 would allow them to clock in for the day," and alleges that HNCA did not pay for this time, 19 Grimson Ded. 13, Ex. A at 10, these allegations are inconsistent with HNCA's policies. Indeed, 20 HNCA's timekeeping system has always permitted employees to manually type in their start and 21 stop times and HNCA's policies required Arana and all other call center employees to accurately 22 enter their time. Rodes Decl. H 6-7, Ex. A; FS 2. Arana himselftestified that he "understood 23 that the company policy was for [him] to accurately record the time [he] worked," and that "[he] 24 was instmcted to put in [his] actual time[,] which [he] did . . . . " Long Decl. 110, Ex. H at 56:20- 25 23, 57:21-23. This "include[d] when [he] started^work, [and] when and if [he] took a meal 26 ^ For the Court's convenience, HNCA has filed a Compendium of Evidence and a Summary of Evidence in support 27 ofthis motion, and the concurtentlyfiledmotion related to Plaintiff Spears' claims. The Compendium of Evidence organizes the numerous declarations submitted as factual support for the two motions, while the Summary of ^° Evidence provides a summary of the facts set forth in those declarations. -13- MEMORANDUM OF POFNTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 break." Id. 110, Ex. H at 57:24-58:1. Arana agreed that "the expectation of the company was 2 that [he] accurately recorded the hours that [he] worked," and that he did that "to the best of [his] 3 ability." Id. 110, Ex. H at 58:6-11. Thus, even assuming some employees experienced a half- 4 hour delay in logging into various computer systems, HNCA's policies required those employees 5 to enter their start time as the time they tumed on their computers or otherwise conimenced work, 6 and system delays would not have prevented them from manually entering the correct time. FS 3. 7 Given that HNCA's policies required as much, it is unsurprising that many employees 8 followed this protocol at all relevant times. FS 3. For example, Brooke Mouton, a Customer 9 Service Representative Lead in Rancho Cordova, first tums on her computer and then clocks in 10 for timekeeping purposes. Decl. of Brooke Mouton 110. She then opens the programs that she 11 needs to perform her work. Id. 111. If there is an issue with her computer, Ms. Mouton informs 12 her supervisor and logs that time manually in the system and is paid for it. /ti. 113. Ms. Mouton 13 understands that she is in control of reporting her hours accurately, including the time it takes to 14 get various programs up and running, and the time it takes to shut her computer down. See id. H 15 7-13. Likewise, Rocio Ramirez, a CSR II in Woodland Hills, clocks in when he arrives at work. 16 Ded. of Rocio Ramirez H 1, 20. While Mr. Ramirez previously logged his time manually, he 17 now does so using a button in the EMPCenter program. Id. 120. Mr. Ramirez only opens other 18 programs after he has clocked in. Id. 122. Closing his programs takes several minutes; after he 19 has dosed his programs, Mr. Ramirez clocks out. M 124. 20 Moreover, at all relevant times HNCA employees were trained to review their time for 21 accuracy each week, FS 4, and many supervisors checked employees' time sheets to ensure 22 employees' time was recorded accurately, FS 5. For example, the supervisors of Rocio Cabrales, 23 who is currently a Membership Analyst II in Woodland Hills but was previously an Eligibility 24 Representative I, II, and II, and a Commissions Specialist, among other roles, reviewed his 25 timesheets for accuracy every two weeks. Decl. of Rocio Cabrales 111,4, 5, 22. Many 26 employees, such as Christalex Mendoza, also reported delays to their supervisors and informed 27 their supervisors of the time they actually started work. Decl. of Christalex Mendoza 113; FS 6. 28 Other call center employees did not experience any delays at all when starting their computers or -14- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 logging in and out of the phone system. FS 7. Some call center employees did not have to log _ 2 into the phone system, and thus would not have experienced these alleged delays. FS 8. Finally, 3 the system for clocking time changed in 2017. Rodes Decl. 1 7. While employees previously 4 logged their time manually, beginning in 2017 employees began using EMPCenter to 5 electronically log their time with the click of a button. Id.; see also FS 9. 6 As this evidence makes clear, even for the employees working in call centers there are 7 potentially significant factual differences that would impact whether employees ever worked off 8 the clock, under what circumstances such work occurred, and whether HNCA had reason to know 9 that work occurred. This is to say nothing of employees who worked at non-call center locations. 10 Many of these employees experienced virtually no delays with their log-in process, and thus did 11 not work off-the-clock as the result of supposed log-in delays. FS 10. For example, Maira 12 Castaneda works as a Concurrent Review Lead in the Concurrent Review Unit of the Medical 13 Management Departrnent in Woodland Hills. Decl. of Maira Castaneda 1 1 . It takes f • . - 14 Ms. Castaneda a matter of seconds to open and close her computer program; likewise, the process 15 for her to record her time in the web-based EMPCenter program takes mere seconds. Id. 118, 16 18. By contrast, it takes Tracy Raitt, a Project Coordinator in the Case Management Department 17 in Woodland Hills, a few minutes to log out of the system. Declaration of Tract Raitt H 1,18. 18 Ms. Raitt previously manually recorded her time, and now uses an electronic system to do so. Id. 19 1116,17. Yet regardless of which system she has used to track her time, Ms, Raitt never worked 20 off the dock or worked hours she has not reported, /rf. 119. 21 The resolution of these issues as to one individual employee in no way represents or could 22 be extrapolated to the experience of any other employee. During the relevant time period, 23 employees worked in approximately 352 differentjob titles, at 26 different locations, under 24 approximately 526 different managers. Rodes Decl. 15. For Arana to meet his burderi of 25 proving each individual off-the-clock violation for which he seeks penalties under the PAGA, the 26 Court would have to conduct mini-trials for all 3,650 employees to determine whether and when 27 that particular employee worked off the clock, as well as whether management had reason to 28 know that employee had worked without pay. Thus, not only is the proof necessary to establish - -15- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 that the allegedly aggrieved employees worked off-the-clock highly individualized, but 2 establishing HNCA's liability for this claim necessarily involves complex factual issues and 3 poses significant management problems for the Court. S. Bay Chevrolet, 72 Cal. App. 4th at 897; 4 Bronco Wine, 214 Cal. App.' 3d at 720. Arana's PAGA claims arising from alleged off-the-clock 5 work are therefore unmanageable and carmot be resolved on a representative basis. 6 IV. CONCLUSION 7 It bears repeating: by his own stipulation, Arana suffered absolutely no Labor Code 8 violations during the PAGA limitations period for which he can or will pursue PAGA claims. 9 And, even if Arana had standing to pursue a PAGA claim for HNCA's alleged meal period 10 violations, rest period violations, or for off-the-clock work, those claims are unmanageable and 11 cannot proceed on a representative basis. The Court must therefore find that Arana's claims 12 should not proceed as a PAGA representative action and must strike Arana's PAGA claiiris. 13 Dated: December 21,2018 ' ORRICK^, ^iERRINGTON & SUTCLIFFE LLP 14 15 T I M O ^ Y J. LONG 16 N I C H O L A S J. H O R T O N Attomeys for Defendant 1' HEALTH NET OF CALIFORNIA, INC. 18 19 20 21 22 23 24 .25 26 27 28 4164-0239-1065.5 " 1^ " MEMORANDUM OF POINTS AND AUTHORITIES FN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION