Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong(^orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton(^orrick.com
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
5 Facsimile: +1 916 329 4900
6 ANNIE H. CHEN (STATE BAR NO. 292032)
annie.chen(^orrick.com
7 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
8 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
9 Facsimile: +1-213-612-2499
10 Attorneys for Defendant
11 HEALTH NET OF CALIFORNIA, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SACRAMENTO
.13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
14 similarly situated,
Plaintiff, AMENDED REPLY MEMORANDUM
15 OF POINTS AND AUTHORITIES IN
SUPPORT OF DEFENDANT HEALTH
16 NET OF CALIFORNIA, INC.'S
HEALTH NET OF CALIFORNIA, INC., a MOTION FOR SUMMARY
17 California Corporation; and Does 1 through ADJUDICATION
50, inclusive, Date: September 27, 2018
18
Time: 9:00 a.m.
Defendants. Dept: 54
19
20 Complaint Filed: April 5, 2017
FAC Filed: June 29, 2017
21 Complaint Filed: August 1, 2017
TOMAS R. ARANA, on behalf of himself, all
others similarly situated,
22
Plaintiff, Consolidated Complaint Filed: Dec. 21, 2017
23
24
HEALTH NET OF CALIFORNIA, INC., a
S3 25 California corporation; and DOES 1-50,
inclusive,
o 26
Defendant.
a 27
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AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 I. INTRODUCTION
2 The Court should strike Plaintiffs' Amended Ojjposition Briefing.' The Court explicitly
3 granted a limited, discovery-related continuance on HNCA's Motion because Plaintiffs claimed
4 that they needed payroll records that were "essential" to UFs 14, 15, and 19. Declaration of
5 Timothy J. Long ("Long Dec."), T| 5, Ex. B. These UFs relate to how the Plan functioned and the
6 total cash benefits Plan participants imder the Plan. Incredibly, Plaintiffs do not once cite to any
7 evidence from those payroll records in their amended opposition papers.^ Plainfiffs instead now
8 argue that these UFs are "incomplete" (UF 14), "immaterial" (UF 15) and "irrelevant" (UF 19).
9 Plaintiffs are attempting an end-run around the Court's May 30"^ Order. They are arguing a new
10 claim that was not alleged in the complaint (i.e., payments made under the wellness incenfive
11 program), now trying to dispute 15 UFs they previously conceded and add five additional
12 "disputed facts," and are generally trying to obfuscate the fairly straightforward application of the
13 Benefit-Plein Contributions Exception. The Court should not coimtenance such gamesmanship.
14 The Court should instead strike Plaintiffs' amended opposition papers, hold Plaintiffs to the
15 original opposition papers that were filed and grant summary adjudication.
16 However, even if the Court were to consider Plaintiffs' amended opposition papers, the
17 undisputed evidence still proves that HNCA is entitled to summary adjudication.^
18 To begin with, Plaintiffs have offered no evidence to controvert the mechanics of the Plan,
19 which is the source of the cash benefits they claim should have been included in the regular rate.
20 Those mechanics, as illustrated below, prove that (1) HNCA "paid the actual costs of the
21 benefits [which includedfiindsfor "Flex Dollars"]" by depositing these fimds "into an account
22 maintained and controlled by HNI as the Plan's sponsor" (RUF 8); (3) once paid to HNI,
23
' Even though only Spears has actively opposed HNCA's Mofion, HNCA will refer to Plaintiffs
24 collectively, except where a particular fact or argument applies to one of them. This is to make
clear that this Motion targets claims asserted by both Plaintiffs.
25 ^ HNCA produced those records on July 6, 2018. Long Dec, 6.
^ HNCA will attempt to avoid repeating (and incorporates by reference) points it has made in its
previous filings, and will focus on the arguments Plaintiffs assert in their amended opposition
2j papers.
' Contrary to Plaintiffs' assertion, this chart is not new evidence. Rather, it provides a visual
28 illustration of the undisputed evidence originally submitted by HNCA to prove that the Benefit-
Plan Contributions Exception applies. See UFs 3-9, 13-14 eind 18.
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 HNCA's contributions were "irrevocable" and "HNCA was unable to recapture or divert the
2 funds to HNCA's use or benefit" RUF 9; and (3) Plaintiffs then received "Flex Dollars pursuant
3 to the terms of the Plan." RUF 13.^
4
5
6 Iiievocable contributions Account Where HNCA employee HNCA
(monies) to be used for controlled elects both dental and employee
7 Plan purposes related to and medical, contributions used covered by
providing benefits to administered to pay for the cost of benefits
8 HNCA employees by HNI
benefit(s) employee selected
selection
9 UTiereHNCA
employee
10 declines either
medical or
11 dental, the
Plan provided
12 a"cash
benefit"
13
14
15 HNCA
employee
16 receives the
cash benefit
17
18
19
^ HNCA has provided the Court with an Amended Reply Separate Statement of Undisputed Material Facts ("RUF")
20 to assist the Court when analyzing the key evidence cited by the parties in support of and in opposition to HNCA's
Motion. Plaintiffs claim that it was inappropriate for HNCA to submit the RUF. However,
21 California courts routinely consider reply separate statements. iSee, e.g.. Whitehead v. Habig, 163
Cal. App. 4th 896, 902 (2008) (plaintiffs, along with their reply brief, filed a reply separate
22 statement, which stated that defendants failed to file an opposition separate statement of
undisputed and disputed facts); Serri v. Santa Clara University, 226 Cal. App. 4th 830, 848
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(2014) (defendants filed papers in reply to plaintiffs opposition to the motions for summary
24 judgment, including separate statements in reply to plaintiffs opposition). Nazir. United Airlines,
Inc., 178 Cal. App. 4th 243, 252 (2009) does not compel a different result. Nazir simply states
25 there is no provision in the summary judgment statute that explicitly requires a reply separate
statement. Id. Further, Nazir is distinguishable. In Nazir, the defendant's separate statement
26 was particularly inappropriate, spanning 196 pages with many facts that were not material-and
often repeated with the same numbers. Id. The court stated that deficiencies in the separate
27 statement were carried over to a 297-page reply separate statement which included 153 pages of
28 exhibits and evidence that is not generally allowed. Id. This is not the case here. Thus, HNCA's
reply separate statement should be considered by the Court.
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AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 What is clear is that the flow of funds, including any cash benefit an employee received when she
2 did not elect medical and/or dental benefits, is all part of the Plan. In this case, every requirement
3 of the Benefit-Plan Contributions Exception is satisfied.
4 As for the wellness incentive payment Plaintiffs now complain about, the lindisputed
5 evidence proves that this payment too is properly excluded from the regular rate under 29 U.S.C.
6 section 207(e)(2) and 29 C.F.R. section 778.224 because it was a payment "made for occasional
7 periods when no work is performed."
8 U. L E G A L ARGUMENT
9 A. The Court Should Strike Plaintiffs' Amended Opposition Papers.
10 The Court should strike Plaintiffs' amended opposition papers because rather than argue
11 why the payroll records they sought created a triable issue as to UFs 14, 15 and/or 19, Plaintiffs
12 have rewritten and contradicted (by now disputing what they previously conceded) their original
13 opposition papers.^ The Court did not invite or allow this.
14 As mentioned above. Plaintiffs now try to explain away UFs 14, 15 and 19 as being
15 "incomplete," "immaterial" and "irrelevant." None of these characterizations is accurate. The
16 mechanics of the Plan, and under what circimistances one could receive cash benefits (UFs 14
17 and 15) are hardly "incomplete" or "immaterial." And whether the aggregate amount of cash
18 benefits paid out is within the threshold identified by the DOL (which it was) (UF 19) is not
19 irrelevant; in fact this evidence goes directly to the fifth prong of the Benefit-Plan Contributions
20 Exception ~/.e., whether the cash benefits were incidental, which they were. That Plaintiffs do
21 not cite to the payroll data they claimed they needed to dispute these UFs and now try to dispute
22 15 UFs they previously conceded, add five "disputed" facts and argue the wellness incentive
23 payment, which neither Plaintiff alleged in the operative complaint, underscores what can only be
24 described as an attempt to make an end-run around the procedural rules (and this Court's order)
25 that govern motions for summary adjudication. The Court should not reward Plaintiffs, and
26 should instead strike their amended opposition papers altogether.
27
* Plaintiffs still concede that HNCA is entitled to stmimary adjudication of their rounding, shift
28 differential and bonus claims. As discussed below, the wellness incentive payment was not a
bonus.
- -3-
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 B. Even Were The Court To Consider Plaintiffs' New Arguments, Summary
Adjudication Is Still Warranted.
2
As HNCA will demonstrate below, even were the Court to consider the amended
3
opposition papers, summary adjudication is still appropriate. The Benefits-Plan Contributions
4
Exception is still satisfied and a separate exception excludes the wellness reimbursement payment
5
from the regular rate.
6
1. HNCA Has Proven That The Benefit-Plan Contributions Exception
7 Applies.
8 To satisfy the Benefit-Plan Contributions Exception, an employer must satisfy five
9 requirements, which HNCA has. See 29 C.F.R. § 778.215(a).
10 First, the undisputed evidence proves that HNCA adopted a written health and welfare
11 plan for the benefit of its employees (RUFs 3-4) and that HNCA's contributions were made
12 pursuant to this Plan, and commimicated to the employees via the Plan SPD and EOC documents.
13 RUFs3-10,Exs.K-L;5ee 29 C.F.R. § 778.215(a)(1).
14 Second, the primary purpose of the Plan was to provide health and welfare benefits to
15 HNCAemployees. RUFs 10-12, Exs.K-L; see 29 C.F.R. § 778.215(a)(2). The Plan provided
16 eligible employees with "core" benefits, including basic life and basic AD&D insurance, at no
17 cost to the employees. RUF 11.
1g Third, the Plan, Plan SPD and EOC documents specified the benefits and coverage
19 available under the.Plan. RUF 10; see 29 C.F.R. § 778.215(a)(3).
20 Fourth, pursuant to the funding arrangement between Plan sponsor and administrator HNI
21 and HNCA, HNCA deposited its employer contributions under the Plan into an account
22 maintained and controlled by HNI. RUFs 5-6, 8. HNCA's contributions were irrevocable - once
23 the contributions were made to HNI, HNCA was unable to recapture or divert the funds for
24 HNCA's use or benefit. RUF 9. This undisputed evidence proves compliance with the fourth
25 element of the Exception. 5ee 29 C.F.R. § 778.215(a)(4).
26 Finally, the imdisputed evidence proves that the total value of the cash benefits paid out
27 by the Plan was indeed "incidental," and well below the 20% cap referenced in the DOL
28 regulations. RUF 19.
. . -4-
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 In the face of these undisputed facts. Plaintiffs try to create a triable issue by first
2 quibbling that terms used by HNCA declarants in its moving papers, such as "overseen" (RUF 4),
3 "contributions" (RUF 5), "administering the plan" (RUF 6), and "benefits" (RUF 7), were vague.
4 To the extent that any of these terms are vague, which in the context of this case, the declarations
5 themselves or the Plan documents they aren't. Plaintiffs had every opportunity to explore their
6 meaning by deposing the declarants (or even a PMK on the mechanics of the Plan) but they chose
7 not to do so.^ It also bears mentioning that in their original opposition papers. Plaintiffs conceded
8 every UF they now complain about and never objected that these terms were vague. Long Dec, f
9 3, Ex. A. Plaintiffs cannot create a triable issue by contradicting themselves.
10 Plaintiffs next try to argue that there must be a triable issue as to whether HNCA paid the
11 cash benefits directly to putative class members because the Plan SPD defines the term
12 "Employer" to include HNCA (Am. 0pp., at 6:1-2), HNCA is listed on Plaintiffs' wage
13 statement, and the cash benefits were deposited into Spears' bank accoimt and taxed. Am. 0pp.,
14 at 4:28-5:2, 5:17-18. These arguments do not create any dispute, much less a triable one.^
15 While it is true that the Plan SPD states that a participeint's "direct employer" is referred to
16 as the Employer, it also mentions that other employers ("participating companies") also
17 participate in the Plan. RUFs 5-10. So what? The term "Employer" is defined in the Plan simply
18 as an employer entity who elects to participate in HNI's Plan. RUFs 5-10. These definitions do
19 not undermine the uncontroverted testimony by HNCA's declaremts that HNCA made irrevocable
20 payments to HNI as the Plan administrator (i.e., a "third party" within the meaning of the Benefit-
21 Plan Contributions Exception) to cover all benefits paid out by the Plan, including the cash
22
23
24
' Plaintiffs reference deposition testimony of Diane Rodes in their effort to manufacture a triable
25 issue. See, e.g., RUF 3. Ms. Rodes was not designated as the PMK regarding the mechanics of
the Plan and how the Plan worked. Long Dec, ^ 7, Ex. C. In fact. Plaintiffs never even sought to
26 depose a Plan PMK who could testify as to the mechanics of the Plan. Id.
' Plaintiffs also sprinkle in comments that there must be a triable issue because the Plan SPD
27
describes the benefits program as being a part of a "total remuneration plan" and there is a 20-
28 hour eligibility threshold. Am. 0pp., at 4:5-12. HNCA does not understand how these points are
relevant and Plaintiffs fail to explain how these comments are germane to the analysis.
-5-
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 benefits that are the subject of this Motion. RUFs 3-19. This testimony is consistent with the
2 provisions in the Plan that identify HNI as the Plan administrator. RUFs 3-6.^
3 As for HNCA being listed on Plaintiffs' wage statements, this is because the law requires
4 the name of the employer (along with the employer's address) to be listed on the wage statement.
5 See Labor Code section 226(a)(8). Compliance with the Labor Code in this regard does not
6 equate to any suggestion that the cash benefits in fact did not come from HNI as the Plan
7 administrator.'"
8 Finally, that the cash benefits were deposited directly into Spears' bank account by HNI,
•9 which processed HNCA's payroll (Sarabia Dec), ^ 1) and were taxable is of no moment. How
10 one receives benefits from the Plan, or whether they are taxable (or not), is completely irrelevant
11 to whether the Benefit-Plan Contributions Exception applies. If these factors were relevant,
12 surely a court, the DOL and/or DLSE interpreting this exception (or the FLSA or applicable
13 regulations themselves) would have been mentioned them. They don't because how one receives
14 the cash benefit or whether the cash benefit is taxable is not relevant to whether the cash benefits
15 at issue should have been included in the regular rate.
16 In summary, the undisputed evidence proves that pursuant to the bona fide Plan, HNCA
17 irrevocably transferred money to HNI, the third party administrator of the Plan (and also HNCA's
18 third party payroll processor), which in turn used those monies to fund the Plan and provide the
19 benefits (including the cash benefits at issue here) to Plan participants such as Plaintiffs, based on
20 their elections. Stated differently, HNCA has provided imdisputed evidence (as opposed to
21 Plaintiffs' arguments) proving that the Benefit-Plan Contributions Exception applies.
22 2. Neither Flores Nor Any Of The Other Cases Upon Which Plaintiffs
Rely Supports Plaintiffs' Arguments.
23
The Ninth Circuit ruled against the employer in Flores v. City of San Gabriel, becaiise that
24
employer was administering its own benefits plan. Flores, 824 F.3d 890, 902 (2016) ("[t]he
25
26 9 Plaintiffs also claim that "conflicting evidence in the record [shows] that these cash payments
2y .. .were paid directly to Plaintiff" Am. 0pp., at 6:24-26. Of course Plaintiffs offer no such
evidence because there is none.
28 '° No law requires that HNI be referenced on a wage statement, even though HNI was the Plan
administrator and the entity that processed payroll for HNCA.
-6-
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 City's cash-in-lieu of benefits are not made to a trustee or third party, and therefore those
2 payments do not meet the requirements of § 207(e)(4)"). That is not the case here. Unlike the
3 facts in Flores, it is undisputed that HNCA did not administer its own benefits plan; instead
4 HNCA made irrevocable contributions to third party HNI in its capacity as the Plan sponsor and
5 administrator. RUFs 3-10. F/ore5 is not controlling and does not prevent this Court from
6 granting summary adjudication.
7 Similarly none of the other cases to which Plaintiffs cite precludes summary adjudication.
8 In Seguin v. City ofTulare,20\S U.S. Dist. LEXIS 68991*; 2018 WL 1919823, Judge Drozd was
9 approving a settlement in a case where it was apparently undisputed that the defendant employer
10 was liable under Flores. That is not the case here, and more to the point. Judge Drozd made no
11 finding concerning the Benefit-Plan Contributions Exception. In Wagner v. City of Inyo, 2018
12 U.S. Dist. LEXIS 108519*; 2018 WL 3203116, Judge Drozd was again reviewing a settlement.
13 Again he made no findings concerning the Benefit-Plan Contributions Exception, and instead
14 ordered the parties to submit supplemental briefing justifying the settlement. Similarly, in Alder
15 V. County of Yolo, 2018 U.S. Dist. LEXIS 9987, Judge Chhabria denied a motion for settlement
16 approval without even mentioning the Benefit-Plan Contributions Exception. And finally, Kries
17 V. City of San Diego, 2018U.S. Dist. LEXIS; 2018 WL 3455996, is even more off-point. There
18 the Court was ruling on a motion to dismiss and applying the IqballTwombly pleading standard.
19 There was no mention of the Benefit-Plan Contributions Exception. None of these cases has any
20 application here. HNCA is entitled to summary adjudication.
21 C. HNCA Is Entitled to Summary Adjudication Notwithstanding Plaintiffs' New
Claim Concerning the Wellness Incentive Payment.
22
Putting aside that neither Plaintiff has even pled that a payment under the Wellness
23
Incentive Program (mentioned for the first time at Am. 0pp., 3:26-28) should have been included
24
in the regular rate (or that either had received such a payment)'' or mentioned the issue in their
25
original opposition papers, this new claim does not prevent summary adjudication.
26
2y " See Bostrom v. County of San Bernardino, 35 Cal. App. 4th 1654, 1663 (1995); Kaye v. Board
of Trustees of San Diego County Public Law Library, 179 Cal. App. 4th 48, 61 (2009) (in ruling
28 on a summary adjudication motion, the court need not consider purported violations the plaintiff
failed to allege).
-7-
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 To begin with. Plaintiffs' claim that such a payment was a non-discretionary bonus is
2 incorrect. It is not a bonus payment at all. Bonuses are "[s]ums paid in recognition of services
3 performed during a given period." See 29 U.S.C. § 207(e)(3). The wellness incentive payments
4 were not tied to work performed at all.
5 Under the Wellness Incentive Program, HNCA provided employees $35 for participating
6 in a health club and/or weight management program. RUF 24. This payment was not tied to
7 employees' hours worked, or the quantity, quality or efficiency of their work. Id. And it is
8 undisputed that HNCA adopted this program for HNCA's own benefit to achieve two corporate
9 goals: lower HNCA's health care costs and improve employees' health for a more productive
10 workforce. RUF 24. Given these undisputed facts, this payment need not be included in
11 Plaintiffs' regular rate of pay.
12 The FLSA specifically creates an exemption from the regular rate for these types of
13 payments. Under Section 207(e)(2) and the implementing regulations at 29 C.F.R. Section
14 778.224, "payments made for occasional periods when no work is performed due to vacation,
15 holiday, illness, failure of the employer to provide sufficient work, or other similar cause;
16 reasonable payments for traveling expenses, or other expenses, incurred by an employee in the
17 furtherance of his employer's interests and properly reimbursable by the employer; I to an
18 employee which are not made as compensation for his hours of employment." 29 U.S.C. §
19 207(e)(2). The wellness payment falls squarely within this exception.. First, the payment is not
20 compensation for services rendered by the employees. RUF 24. Further, HNCA made this
21 payment to eligible employees to benefit itself by reducing its health care costs and providing a
22 healthier workforce. Id. See also 29 C.F.R. § 778.217; Opinion Letter Fair Labor Standards Act
23 (FLSA), 1994 WL 1004844, at *2 (tuition reimbursement need not be included in the regular rate
24 of pay.). Thus, this payment is properly excludable from the regular rate of pay calculation as an
25 "other similar payment."
26 III .
27
The Court should allow HNCA's additional evidentiary matter relating to this new claim by
28 Plaintiffs because Plaintiffs raised this issue for the first time in their amended opposition papers.
Jacobs V. Coldwell Banker Residential Brokerage Co., 14 Cal. App. 5th 438,449 (2017).
-8-
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 III. CONCLUSION
2 For all the foregoing reasons, the Court should strike Plaintiff amended opposition
3 papers, and consider only the original briefing on file with the Court. The Court should also grant
4 HNCA's Motion for Summary Adjudication.
5
6 Dated: September 14,2018 ORRICK, HERRINGTON «& SUTCLIFFE
7
8
9 TIMOTHY J
Attorneys for
10 HEALTH NET OF C lA, INC.
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4158-2673-2823.3 -9
AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION
1 PROOF OF SERVICE
2
3 1 am more than eighteen years old and not a party to this action. My business address is
4 Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento, California
5 95814.
6 On September 14, 2018,1 served the following: document(s):
7 AMENDED R E P L Y MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT O F DEFENDANT H E A L T H NET
8 O F CALIFORNIA, INC.'S MOTION F O R SUMMARY
ADJUDICATION;
9
R E P L Y TO AMENDED RESPONSIVE SEPARATE
10 STATEMENT OF F A C T S TO DEFENDANT H E A L T H NET O F
CALIFORNIA, INC.'S MOTON F O R SUMMARY
11 ADJUDICATION; and
12 DEFENDANT H E A L T H NET O F CALIFORNIA, INC.'S
COMPENDIUM O F E V I D E N C E IN SUPPORT OF ITS
13 AMENDED R E P L Y TO ITS MOTION FOR SUMMARY
ADJUDICATION
14
15 • (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed
16 envelope addressed as set forth below. I placed each such envelope for collection and mailing
17 following ordinary business practices. I am readily familiar with this Firm's practice for
18 collection and processing of correspondence for mailing. Under that practice, the correspondence
19 would be deposited with the United States Postal Service on that same day, with postage thereon
20 fully prepaid at Sacramento, California, in the ordinary course of business, on the interested
21 parties in this action by placing true and correct copies thereof in sealed envelope(s) addressed as
22 follows:
23 Norman B. Blumenthal Attorneys for Plaintiff Andrea Spears
Kyle R. Nordrehaug
Aparajit Bhowmik Telephone: (858) 551-1223
25 Victoria B. Rivapalacio Facsimile: (858) 551-1232
BLUMENTHAL, NORDREHAUG &
26 BHOMIK norm@bamlawca.com
2255 Calle Clara kvle@bamlawca.com
27 La JoUa, CA 92037 AJ(a)bamlawca.com
victoria(a),bamlawca.com
28
PROOF OF SERVICE
1
Shaun Setareh Attorneys for Plaintiff Tomas R. Arana
2 H. Scott Leviant
3 SETAREH LAW GROUP Telephone: (310) 888-7771
9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109
4 Beverly Hills, CA 90212
shaun(g),setarehlaw.com
5 scott(a>setarehlaw.com
6
7 • (BY EMAIL AS A MATTER OF COURTESY) By transmitting a true pdf copy
8 of the foregoing document(s) by e-mail transmission from pheath@orrick.com to the interested
9 parties only as indicated on the below service list at the e-mail addresses set forth on said service
10 list. Said transmission(s) were completed on the aforesaid date at the time stated on declarant's e-
11 mail transmission record. Each such transmission was reported as complete and without error.
12 • (BY ELECTRONIC FILING VIA CASE MANAGEMENT/ ELECTRONIC
13 CASE FILFNG: By transmitting via e-filing through the Case Management/Electronic Case
14 Filing ("CM/ECF") system, to be sent electronically and simultaneously to the registered
15 participants as identified on the Notice of Electronic Filing ("NEF"), including the following:
16 lEI (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly
17 maintained by UPS, a true copy of the foregoing document(s) in a sealed envelope or package
18 designated by UPS, addressed as set forth on the attached mailing list, with fees for overnight
19 delivery paid or provided for:
20
Norman B. Blumenthal Attorneys for Plaintiff Andrea Spears
21 Kyle R. Nordrehaug
Aparajit Bhowmik Telephone: (858) 551-1223
22 Victoria B. Rivapalacio Facsimile: (858) 551-1232
23 BLUMENTHAL, NORDREHAUG &
BHOMIK norm@bamlawca.com
24 2255 Calle Clara kyle@bamlawca.com
LaJolla, CA 92037 AJ@bamlawca.com
25 victoria@bamlawca.com
26
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PROOF OF SERVICE
1 Shaun Setareh Attorneys for Plaintiff Tomas R. Arana
H. Scott Leviant
2 SETAREH LAW GROUP Telephone: (310) 888-7771
3 9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109
Beverly Hills, CA 90212
4 shaun@setarehlaw.com
scott@setarehlaw.com
•5
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• (BY FACSIMILE) By transmitting a true copy of the foregoing document(s) via
7
facsimile transmission from this Firm's sending facsimile machine, whose telephone number is
8
(916) 329-4900, to each interested party at the facsimile machine telephone number(s) set forth
9
on the attached mailing list. Said transmission(s) were completed on the aforesaid date at the time
10
stated on the transmission record issued by this Firm's sending facsimile machine. Each such
11
transmission was reported as complete and without error and a transmission report was properly
12
issued by this Firm's sending facsimile machine for each interested party served. A true copy of
13
each transmission report is attached to the office copy of this proof of service and will be
14
provided upon request.
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I declare under penalty of perjury under the laws of the State of California that the above
16
is true and correct.
17
Executed on September 14, 2018, at Sacramento, California.
18
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20 Patricia M. Heath
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PROOF OF SERVICE
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1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong(^orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton(^orrick.com 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 5 Facsimile: +1 916 329 4900 6 ANNIE H. CHEN (STATE BAR NO. 292032) annie.chen(^orrick.com 7 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 8 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 9 Facsimile: +1-213-612-2499 10 Attorneys for Defendant 11 HEALTH NET OF CALIFORNIA, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO .13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 14 similarly situated, Plaintiff, AMENDED REPLY MEMORANDUM 15 OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT HEALTH 16 NET OF CALIFORNIA, INC.'S HEALTH NET OF CALIFORNIA, INC., a MOTION FOR SUMMARY 17 California Corporation; and Does 1 through ADJUDICATION 50, inclusive, Date: September 27, 2018 18 Time: 9:00 a.m. Defendants. Dept: 54 19 20 Complaint Filed: April 5, 2017 FAC Filed: June 29, 2017 21 Complaint Filed: August 1, 2017 TOMAS R. ARANA, on behalf of himself, all others similarly situated, 22 Plaintiff, Consolidated Complaint Filed: Dec. 21, 2017 23 24 HEALTH NET OF CALIFORNIA, INC., a S3 25 California corporation; and DOES 1-50, inclusive, o 26 Defendant. a 27 28 AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 I. INTRODUCTION 2 The Court should strike Plaintiffs' Amended Ojjposition Briefing.' The Court explicitly 3 granted a limited, discovery-related continuance on HNCA's Motion because Plaintiffs claimed 4 that they needed payroll records that were "essential" to UFs 14, 15, and 19. Declaration of 5 Timothy J. Long ("Long Dec."), T| 5, Ex. B. These UFs relate to how the Plan functioned and the 6 total cash benefits Plan participants imder the Plan. Incredibly, Plaintiffs do not once cite to any 7 evidence from those payroll records in their amended opposition papers.^ Plainfiffs instead now 8 argue that these UFs are "incomplete" (UF 14), "immaterial" (UF 15) and "irrelevant" (UF 19). 9 Plaintiffs are attempting an end-run around the Court's May 30"^ Order. They are arguing a new 10 claim that was not alleged in the complaint (i.e., payments made under the wellness incenfive 11 program), now trying to dispute 15 UFs they previously conceded and add five additional 12 "disputed facts," and are generally trying to obfuscate the fairly straightforward application of the 13 Benefit-Plein Contributions Exception. The Court should not coimtenance such gamesmanship. 14 The Court should instead strike Plaintiffs' amended opposition papers, hold Plaintiffs to the 15 original opposition papers that were filed and grant summary adjudication. 16 However, even if the Court were to consider Plaintiffs' amended opposition papers, the 17 undisputed evidence still proves that HNCA is entitled to summary adjudication.^ 18 To begin with, Plaintiffs have offered no evidence to controvert the mechanics of the Plan, 19 which is the source of the cash benefits they claim should have been included in the regular rate. 20 Those mechanics, as illustrated below, prove that (1) HNCA "paid the actual costs of the 21 benefits [which includedfiindsfor "Flex Dollars"]" by depositing these fimds "into an account 22 maintained and controlled by HNI as the Plan's sponsor" (RUF 8); (3) once paid to HNI, 23 ' Even though only Spears has actively opposed HNCA's Mofion, HNCA will refer to Plaintiffs 24 collectively, except where a particular fact or argument applies to one of them. This is to make clear that this Motion targets claims asserted by both Plaintiffs. 25 ^ HNCA produced those records on July 6, 2018. Long Dec, 6. ^ HNCA will attempt to avoid repeating (and incorporates by reference) points it has made in its previous filings, and will focus on the arguments Plaintiffs assert in their amended opposition 2j papers. ' Contrary to Plaintiffs' assertion, this chart is not new evidence. Rather, it provides a visual 28 illustration of the undisputed evidence originally submitted by HNCA to prove that the Benefit- Plan Contributions Exception applies. See UFs 3-9, 13-14 eind 18. AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 HNCA's contributions were "irrevocable" and "HNCA was unable to recapture or divert the 2 funds to HNCA's use or benefit" RUF 9; and (3) Plaintiffs then received "Flex Dollars pursuant 3 to the terms of the Plan." RUF 13.^ 4 5 6 Iiievocable contributions Account Where HNCA employee HNCA (monies) to be used for controlled elects both dental and employee 7 Plan purposes related to and medical, contributions used covered by providing benefits to administered to pay for the cost of benefits 8 HNCA employees by HNI benefit(s) employee selected selection 9 UTiereHNCA employee 10 declines either medical or 11 dental, the Plan provided 12 a"cash benefit" 13 14 15 HNCA employee 16 receives the cash benefit 17 18 19 ^ HNCA has provided the Court with an Amended Reply Separate Statement of Undisputed Material Facts ("RUF") 20 to assist the Court when analyzing the key evidence cited by the parties in support of and in opposition to HNCA's Motion. Plaintiffs claim that it was inappropriate for HNCA to submit the RUF. However, 21 California courts routinely consider reply separate statements. iSee, e.g.. Whitehead v. Habig, 163 Cal. App. 4th 896, 902 (2008) (plaintiffs, along with their reply brief, filed a reply separate 22 statement, which stated that defendants failed to file an opposition separate statement of undisputed and disputed facts); Serri v. Santa Clara University, 226 Cal. App. 4th 830, 848 23 (2014) (defendants filed papers in reply to plaintiffs opposition to the motions for summary 24 judgment, including separate statements in reply to plaintiffs opposition). Nazir. United Airlines, Inc., 178 Cal. App. 4th 243, 252 (2009) does not compel a different result. Nazir simply states 25 there is no provision in the summary judgment statute that explicitly requires a reply separate statement. Id. Further, Nazir is distinguishable. In Nazir, the defendant's separate statement 26 was particularly inappropriate, spanning 196 pages with many facts that were not material-and often repeated with the same numbers. Id. The court stated that deficiencies in the separate 27 statement were carried over to a 297-page reply separate statement which included 153 pages of 28 exhibits and evidence that is not generally allowed. Id. This is not the case here. Thus, HNCA's reply separate statement should be considered by the Court. -2- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 What is clear is that the flow of funds, including any cash benefit an employee received when she 2 did not elect medical and/or dental benefits, is all part of the Plan. In this case, every requirement 3 of the Benefit-Plan Contributions Exception is satisfied. 4 As for the wellness incentive payment Plaintiffs now complain about, the lindisputed 5 evidence proves that this payment too is properly excluded from the regular rate under 29 U.S.C. 6 section 207(e)(2) and 29 C.F.R. section 778.224 because it was a payment "made for occasional 7 periods when no work is performed." 8 U. L E G A L ARGUMENT 9 A. The Court Should Strike Plaintiffs' Amended Opposition Papers. 10 The Court should strike Plaintiffs' amended opposition papers because rather than argue 11 why the payroll records they sought created a triable issue as to UFs 14, 15 and/or 19, Plaintiffs 12 have rewritten and contradicted (by now disputing what they previously conceded) their original 13 opposition papers.^ The Court did not invite or allow this. 14 As mentioned above. Plaintiffs now try to explain away UFs 14, 15 and 19 as being 15 "incomplete," "immaterial" and "irrelevant." None of these characterizations is accurate. The 16 mechanics of the Plan, and under what circimistances one could receive cash benefits (UFs 14 17 and 15) are hardly "incomplete" or "immaterial." And whether the aggregate amount of cash 18 benefits paid out is within the threshold identified by the DOL (which it was) (UF 19) is not 19 irrelevant; in fact this evidence goes directly to the fifth prong of the Benefit-Plan Contributions 20 Exception ~/.e., whether the cash benefits were incidental, which they were. That Plaintiffs do 21 not cite to the payroll data they claimed they needed to dispute these UFs and now try to dispute 22 15 UFs they previously conceded, add five "disputed" facts and argue the wellness incentive 23 payment, which neither Plaintiff alleged in the operative complaint, underscores what can only be 24 described as an attempt to make an end-run around the procedural rules (and this Court's order) 25 that govern motions for summary adjudication. The Court should not reward Plaintiffs, and 26 should instead strike their amended opposition papers altogether. 27 * Plaintiffs still concede that HNCA is entitled to stmimary adjudication of their rounding, shift 28 differential and bonus claims. As discussed below, the wellness incentive payment was not a bonus. - -3- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 B. Even Were The Court To Consider Plaintiffs' New Arguments, Summary Adjudication Is Still Warranted. 2 As HNCA will demonstrate below, even were the Court to consider the amended 3 opposition papers, summary adjudication is still appropriate. The Benefits-Plan Contributions 4 Exception is still satisfied and a separate exception excludes the wellness reimbursement payment 5 from the regular rate. 6 1. HNCA Has Proven That The Benefit-Plan Contributions Exception 7 Applies. 8 To satisfy the Benefit-Plan Contributions Exception, an employer must satisfy five 9 requirements, which HNCA has. See 29 C.F.R. § 778.215(a). 10 First, the undisputed evidence proves that HNCA adopted a written health and welfare 11 plan for the benefit of its employees (RUFs 3-4) and that HNCA's contributions were made 12 pursuant to this Plan, and commimicated to the employees via the Plan SPD and EOC documents. 13 RUFs3-10,Exs.K-L;5ee 29 C.F.R. § 778.215(a)(1). 14 Second, the primary purpose of the Plan was to provide health and welfare benefits to 15 HNCAemployees. RUFs 10-12, Exs.K-L; see 29 C.F.R. § 778.215(a)(2). The Plan provided 16 eligible employees with "core" benefits, including basic life and basic AD&D insurance, at no 17 cost to the employees. RUF 11. 1g Third, the Plan, Plan SPD and EOC documents specified the benefits and coverage 19 available under the.Plan. RUF 10; see 29 C.F.R. § 778.215(a)(3). 20 Fourth, pursuant to the funding arrangement between Plan sponsor and administrator HNI 21 and HNCA, HNCA deposited its employer contributions under the Plan into an account 22 maintained and controlled by HNI. RUFs 5-6, 8. HNCA's contributions were irrevocable - once 23 the contributions were made to HNI, HNCA was unable to recapture or divert the funds for 24 HNCA's use or benefit. RUF 9. This undisputed evidence proves compliance with the fourth 25 element of the Exception. 5ee 29 C.F.R. § 778.215(a)(4). 26 Finally, the imdisputed evidence proves that the total value of the cash benefits paid out 27 by the Plan was indeed "incidental," and well below the 20% cap referenced in the DOL 28 regulations. RUF 19. . . -4- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 In the face of these undisputed facts. Plaintiffs try to create a triable issue by first 2 quibbling that terms used by HNCA declarants in its moving papers, such as "overseen" (RUF 4), 3 "contributions" (RUF 5), "administering the plan" (RUF 6), and "benefits" (RUF 7), were vague. 4 To the extent that any of these terms are vague, which in the context of this case, the declarations 5 themselves or the Plan documents they aren't. Plaintiffs had every opportunity to explore their 6 meaning by deposing the declarants (or even a PMK on the mechanics of the Plan) but they chose 7 not to do so.^ It also bears mentioning that in their original opposition papers. Plaintiffs conceded 8 every UF they now complain about and never objected that these terms were vague. Long Dec, f 9 3, Ex. A. Plaintiffs cannot create a triable issue by contradicting themselves. 10 Plaintiffs next try to argue that there must be a triable issue as to whether HNCA paid the 11 cash benefits directly to putative class members because the Plan SPD defines the term 12 "Employer" to include HNCA (Am. 0pp., at 6:1-2), HNCA is listed on Plaintiffs' wage 13 statement, and the cash benefits were deposited into Spears' bank accoimt and taxed. Am. 0pp., 14 at 4:28-5:2, 5:17-18. These arguments do not create any dispute, much less a triable one.^ 15 While it is true that the Plan SPD states that a participeint's "direct employer" is referred to 16 as the Employer, it also mentions that other employers ("participating companies") also 17 participate in the Plan. RUFs 5-10. So what? The term "Employer" is defined in the Plan simply 18 as an employer entity who elects to participate in HNI's Plan. RUFs 5-10. These definitions do 19 not undermine the uncontroverted testimony by HNCA's declaremts that HNCA made irrevocable 20 payments to HNI as the Plan administrator (i.e., a "third party" within the meaning of the Benefit- 21 Plan Contributions Exception) to cover all benefits paid out by the Plan, including the cash 22 23 24 ' Plaintiffs reference deposition testimony of Diane Rodes in their effort to manufacture a triable 25 issue. See, e.g., RUF 3. Ms. Rodes was not designated as the PMK regarding the mechanics of the Plan and how the Plan worked. Long Dec, ^ 7, Ex. C. In fact. Plaintiffs never even sought to 26 depose a Plan PMK who could testify as to the mechanics of the Plan. Id. ' Plaintiffs also sprinkle in comments that there must be a triable issue because the Plan SPD 27 describes the benefits program as being a part of a "total remuneration plan" and there is a 20- 28 hour eligibility threshold. Am. 0pp., at 4:5-12. HNCA does not understand how these points are relevant and Plaintiffs fail to explain how these comments are germane to the analysis. -5- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 benefits that are the subject of this Motion. RUFs 3-19. This testimony is consistent with the 2 provisions in the Plan that identify HNI as the Plan administrator. RUFs 3-6.^ 3 As for HNCA being listed on Plaintiffs' wage statements, this is because the law requires 4 the name of the employer (along with the employer's address) to be listed on the wage statement. 5 See Labor Code section 226(a)(8). Compliance with the Labor Code in this regard does not 6 equate to any suggestion that the cash benefits in fact did not come from HNI as the Plan 7 administrator.'" 8 Finally, that the cash benefits were deposited directly into Spears' bank account by HNI, •9 which processed HNCA's payroll (Sarabia Dec), ^ 1) and were taxable is of no moment. How 10 one receives benefits from the Plan, or whether they are taxable (or not), is completely irrelevant 11 to whether the Benefit-Plan Contributions Exception applies. If these factors were relevant, 12 surely a court, the DOL and/or DLSE interpreting this exception (or the FLSA or applicable 13 regulations themselves) would have been mentioned them. They don't because how one receives 14 the cash benefit or whether the cash benefit is taxable is not relevant to whether the cash benefits 15 at issue should have been included in the regular rate. 16 In summary, the undisputed evidence proves that pursuant to the bona fide Plan, HNCA 17 irrevocably transferred money to HNI, the third party administrator of the Plan (and also HNCA's 18 third party payroll processor), which in turn used those monies to fund the Plan and provide the 19 benefits (including the cash benefits at issue here) to Plan participants such as Plaintiffs, based on 20 their elections. Stated differently, HNCA has provided imdisputed evidence (as opposed to 21 Plaintiffs' arguments) proving that the Benefit-Plan Contributions Exception applies. 22 2. Neither Flores Nor Any Of The Other Cases Upon Which Plaintiffs Rely Supports Plaintiffs' Arguments. 23 The Ninth Circuit ruled against the employer in Flores v. City of San Gabriel, becaiise that 24 employer was administering its own benefits plan. Flores, 824 F.3d 890, 902 (2016) ("[t]he 25 26 9 Plaintiffs also claim that "conflicting evidence in the record [shows] that these cash payments 2y .. .were paid directly to Plaintiff" Am. 0pp., at 6:24-26. Of course Plaintiffs offer no such evidence because there is none. 28 '° No law requires that HNI be referenced on a wage statement, even though HNI was the Plan administrator and the entity that processed payroll for HNCA. -6- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 City's cash-in-lieu of benefits are not made to a trustee or third party, and therefore those 2 payments do not meet the requirements of § 207(e)(4)"). That is not the case here. Unlike the 3 facts in Flores, it is undisputed that HNCA did not administer its own benefits plan; instead 4 HNCA made irrevocable contributions to third party HNI in its capacity as the Plan sponsor and 5 administrator. RUFs 3-10. F/ore5 is not controlling and does not prevent this Court from 6 granting summary adjudication. 7 Similarly none of the other cases to which Plaintiffs cite precludes summary adjudication. 8 In Seguin v. City ofTulare,20\S U.S. Dist. LEXIS 68991*; 2018 WL 1919823, Judge Drozd was 9 approving a settlement in a case where it was apparently undisputed that the defendant employer 10 was liable under Flores. That is not the case here, and more to the point. Judge Drozd made no 11 finding concerning the Benefit-Plan Contributions Exception. In Wagner v. City of Inyo, 2018 12 U.S. Dist. LEXIS 108519*; 2018 WL 3203116, Judge Drozd was again reviewing a settlement. 13 Again he made no findings concerning the Benefit-Plan Contributions Exception, and instead 14 ordered the parties to submit supplemental briefing justifying the settlement. Similarly, in Alder 15 V. County of Yolo, 2018 U.S. Dist. LEXIS 9987, Judge Chhabria denied a motion for settlement 16 approval without even mentioning the Benefit-Plan Contributions Exception. And finally, Kries 17 V. City of San Diego, 2018U.S. Dist. LEXIS; 2018 WL 3455996, is even more off-point. There 18 the Court was ruling on a motion to dismiss and applying the IqballTwombly pleading standard. 19 There was no mention of the Benefit-Plan Contributions Exception. None of these cases has any 20 application here. HNCA is entitled to summary adjudication. 21 C. HNCA Is Entitled to Summary Adjudication Notwithstanding Plaintiffs' New Claim Concerning the Wellness Incentive Payment. 22 Putting aside that neither Plaintiff has even pled that a payment under the Wellness 23 Incentive Program (mentioned for the first time at Am. 0pp., 3:26-28) should have been included 24 in the regular rate (or that either had received such a payment)'' or mentioned the issue in their 25 original opposition papers, this new claim does not prevent summary adjudication. 26 2y " See Bostrom v. County of San Bernardino, 35 Cal. App. 4th 1654, 1663 (1995); Kaye v. Board of Trustees of San Diego County Public Law Library, 179 Cal. App. 4th 48, 61 (2009) (in ruling 28 on a summary adjudication motion, the court need not consider purported violations the plaintiff failed to allege). -7- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 To begin with. Plaintiffs' claim that such a payment was a non-discretionary bonus is 2 incorrect. It is not a bonus payment at all. Bonuses are "[s]ums paid in recognition of services 3 performed during a given period." See 29 U.S.C. § 207(e)(3). The wellness incentive payments 4 were not tied to work performed at all. 5 Under the Wellness Incentive Program, HNCA provided employees $35 for participating 6 in a health club and/or weight management program. RUF 24. This payment was not tied to 7 employees' hours worked, or the quantity, quality or efficiency of their work. Id. And it is 8 undisputed that HNCA adopted this program for HNCA's own benefit to achieve two corporate 9 goals: lower HNCA's health care costs and improve employees' health for a more productive 10 workforce. RUF 24. Given these undisputed facts, this payment need not be included in 11 Plaintiffs' regular rate of pay. 12 The FLSA specifically creates an exemption from the regular rate for these types of 13 payments. Under Section 207(e)(2) and the implementing regulations at 29 C.F.R. Section 14 778.224, "payments made for occasional periods when no work is performed due to vacation, 15 holiday, illness, failure of the employer to provide sufficient work, or other similar cause; 16 reasonable payments for traveling expenses, or other expenses, incurred by an employee in the 17 furtherance of his employer's interests and properly reimbursable by the employer; I to an 18 employee which are not made as compensation for his hours of employment." 29 U.S.C. § 19 207(e)(2). The wellness payment falls squarely within this exception.. First, the payment is not 20 compensation for services rendered by the employees. RUF 24. Further, HNCA made this 21 payment to eligible employees to benefit itself by reducing its health care costs and providing a 22 healthier workforce. Id. See also 29 C.F.R. § 778.217; Opinion Letter Fair Labor Standards Act 23 (FLSA), 1994 WL 1004844, at *2 (tuition reimbursement need not be included in the regular rate 24 of pay.). Thus, this payment is properly excludable from the regular rate of pay calculation as an 25 "other similar payment." 26 III . 27 The Court should allow HNCA's additional evidentiary matter relating to this new claim by 28 Plaintiffs because Plaintiffs raised this issue for the first time in their amended opposition papers. Jacobs V. Coldwell Banker Residential Brokerage Co., 14 Cal. App. 5th 438,449 (2017). -8- AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 III. CONCLUSION 2 For all the foregoing reasons, the Court should strike Plaintiff amended opposition 3 papers, and consider only the original briefing on file with the Court. The Court should also grant 4 HNCA's Motion for Summary Adjudication. 5 6 Dated: September 14,2018 ORRICK, HERRINGTON «& SUTCLIFFE 7 8 9 TIMOTHY J Attorneys for 10 HEALTH NET OF C lA, INC. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4158-2673-2823.3 -9 AMENDED REPLY IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY ADJUDICATION 1 PROOF OF SERVICE 2 3 1 am more than eighteen years old and not a party to this action. My business address is 4 Orrick, Herrington & Sutcliffe LLP, 400 Capitol Mall, Suite 3000, Sacramento, California 5 95814. 6 On September 14, 2018,1 served the following: document(s): 7 AMENDED R E P L Y MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT O F DEFENDANT H E A L T H NET 8 O F CALIFORNIA, INC.'S MOTION F O R SUMMARY ADJUDICATION; 9 R E P L Y TO AMENDED RESPONSIVE SEPARATE 10 STATEMENT OF F A C T S TO DEFENDANT H E A L T H NET O F CALIFORNIA, INC.'S MOTON F O R SUMMARY 11 ADJUDICATION; and 12 DEFENDANT H E A L T H NET O F CALIFORNIA, INC.'S COMPENDIUM O F E V I D E N C E IN SUPPORT OF ITS 13 AMENDED R E P L Y TO ITS MOTION FOR SUMMARY ADJUDICATION 14 15 • (BY MAIL) By placing a true copy of the foregoing document(s) in a sealed 16 envelope addressed as set forth below. I placed each such envelope for collection and mailing 17 following ordinary business practices. I am readily familiar with this Firm's practice for 18 collection and processing of correspondence for mailing. Under that practice, the correspondence 19 would be deposited with the United States Postal Service on that same day, with postage thereon 20 fully prepaid at Sacramento, California, in the ordinary course of business, on the interested 21 parties in this action by placing true and correct copies thereof in sealed envelope(s) addressed as 22 follows: 23 Norman B. Blumenthal Attorneys for Plaintiff Andrea Spears Kyle R. Nordrehaug Aparajit Bhowmik Telephone: (858) 551-1223 25 Victoria B. Rivapalacio Facsimile: (858) 551-1232 BLUMENTHAL, NORDREHAUG & 26 BHOMIK norm@bamlawca.com 2255 Calle Clara kvle@bamlawca.com 27 La JoUa, CA 92037 AJ(a)bamlawca.com victoria(a),bamlawca.com 28 PROOF OF SERVICE 1 Shaun Setareh Attorneys for Plaintiff Tomas R. Arana 2 H. Scott Leviant 3 SETAREH LAW GROUP Telephone: (310) 888-7771 9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109 4 Beverly Hills, CA 90212 shaun(g),setarehlaw.com 5 scott(a>setarehlaw.com 6 7 • (BY EMAIL AS A MATTER OF COURTESY) By transmitting a true pdf copy 8 of the foregoing document(s) by e-mail transmission from pheath@orrick.com to the interested 9 parties only as indicated on the below service list at the e-mail addresses set forth on said service 10 list. Said transmission(s) were completed on the aforesaid date at the time stated on declarant's e- 11 mail transmission record. Each such transmission was reported as complete and without error. 12 • (BY ELECTRONIC FILING VIA CASE MANAGEMENT/ ELECTRONIC 13 CASE FILFNG: By transmitting via e-filing through the Case Management/Electronic Case 14 Filing ("CM/ECF") system, to be sent electronically and simultaneously to the registered 15 participants as identified on the Notice of Electronic Filing ("NEF"), including the following: 16 lEI (BY OVERNIGHT DELIVERY) I deposited in a box or other facility regularly 17 maintained by UPS, a true copy of the foregoing document(s) in a sealed envelope or package 18 designated by UPS, addressed as set forth on the attached mailing list, with fees for overnight 19 delivery paid or provided for: 20 Norman B. Blumenthal Attorneys for Plaintiff Andrea Spears 21 Kyle R. Nordrehaug Aparajit Bhowmik Telephone: (858) 551-1223 22 Victoria B. Rivapalacio Facsimile: (858) 551-1232 23 BLUMENTHAL, NORDREHAUG & BHOMIK norm@bamlawca.com 24 2255 Calle Clara kyle@bamlawca.com LaJolla, CA 92037 AJ@bamlawca.com 25 victoria@bamlawca.com 26 27 28 PROOF OF SERVICE 1 Shaun Setareh Attorneys for Plaintiff Tomas R. Arana H. Scott Leviant 2 SETAREH LAW GROUP Telephone: (310) 888-7771 3 9454 Wilshire Boulevard, Suite 907 Facsimile: (310) 888-0109 Beverly Hills, CA 90212 4 shaun@setarehlaw.com scott@setarehlaw.com •5 6 • (BY FACSIMILE) By transmitting a true copy of the foregoing document(s) via 7 facsimile transmission from this Firm's sending facsimile machine, whose telephone number is 8 (916) 329-4900, to each interested party at the facsimile machine telephone number(s) set forth 9 on the attached mailing list. Said transmission(s) were completed on the aforesaid date at the time 10 stated on the transmission record issued by this Firm's sending facsimile machine. Each such 11 transmission was reported as complete and without error and a transmission report was properly 12 issued by this Firm's sending facsimile machine for each interested party served. A true copy of 13 each transmission report is attached to the office copy of this proof of service and will be 14 provided upon request. 15 I declare under penalty of perjury under the laws of the State of California that the above 16 is true and correct. 17 Executed on September 14, 2018, at Sacramento, California. 18 19 20 Patricia M. Heath 21 22 23 24 25 26 27 28 PROOF OF SERVICE