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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217)
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
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Attomeys for Plaintiff Andrea Spears
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SACRAMENTO
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II ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
12 similarly situated.
Plaintiff,
13 CLASS ACTION
V.
14 PLAINTIFF ANDREA SPEARS'S NOTICE
HEALTH NET OF CALIFORNIA, FNC, a OF MOTION AND MOTION TO
15 Califomia Corporation; and Does 1 through CONTINUE HEARING DATE AND
50, inclusive. BRIEFING SCHEDULE RELATING TO
16 Defendants. CLASS CERTIFICATION;
17 TOMAS R. ARANA, on behalf of himself, all MEMORANDUM OF POINTS AND
18 others similarly situated, AUTHORITIES IN SUPPORT
Plaintiff,
V.
19 Hearing Date: -TOP
20 HEALTH NET OF CALIFORNIA, INC., a Hearing Time: -TBD- '21*'.^'*
Califomia corporation; and DOES 1-50, Judge: Hon. Alan G. Perkins
21 inclusive. Dept.: 35
Defendant.
X 22 Action Filed: April 5,2017
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
CASE No. 34-2017-00210560
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1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on a date and time to be determined by the Court, Plaintiff
3 Andrea Spears will and hereby does move for an order continuing the December 14,2018 deadline for
4 filing Plaintiffs' opening brief for class certification and Defendant's motion for decertification, briefing
5 schedules and the associated April 11, 2019 hearing date. This motion will be heard before the
6 Honorable Alan G. Perkins, Judge of the Superior Court of the County of Sacramento.
7 This motion is brought on the grounds that good cause exists to enter the order as on
8 November 19,2018, Defendant filed a Renewed Motion for Summary Adjudication (" Renewed MSA")
9 without providing prior notice to both Plaintiffs and the Court, and unilaterally set the hearing date for
10 the Renewed MSA on Febmary 4, 2019. Because the outcome of Defendant's Renewed MSA will
II affect how Plaintiffs will present the common predominance theories of liability in Plaintiffs' upcoming
12 motion for class certification as well as Plaintiffs' opposition to Defendant's forthcoming motion for
13 decertification, the interests of efficiency require that the briefing schedules for the motion for class
14 certification and motion for decertification be continued. Plaintiffs are, therefore, requesting the briefing
15 schedule continued such that the hearing on the class certification and decertification motions is on June
16 28, 2019, or a date thereafter convenient for the Court. This request, if granted, would move the filing
17 date of the motions from December 14, 2018 to no earlier than April 12, 2018, providing Plaintiffs a
18 sufficient amount of time to draft the motion based on the outcome of Defendant's Renewed MSA.
19 Counsel has made a reasonable and good faith effort to informally resolve the issues presented
20 by this motion. Defendant has unreasonably refused to cooperate in continuing the class certification
21 motion briefing schedule and hearing date. The motion will be based upon this notice, the memorandum
22 of points and authorities, the declaration of Piya Mukherjee and exhibits thereto, along with the papers
23 in the Court record and the oral argument at the hearing.
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
CASE No. 34-2017-00210560
1 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of
2 this matter by 2:00 p.m., the court day before the hearing. The hearing date on this motion shall
3 be set by the Court. The complete text of the tentative rulings for the department may be
4 downloaded off the court's website. If the party does not have online access, they may call the
5 dedicated phone number for the department as referenced in the local telephone directory between
6 the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative
7 ruling. If you do not call the court and opposing party on the court day before the hearing, no
8 hearing will be held.
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DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP
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II By:
Piya
Mya MukI
Mukherjee
12 Attomeys for Plaintiff AnSrea Spears
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 L INTRODUCTION
3 Plaintiffs hereby moves for an Order continuing the December 14, 2018 deadline for filing
4 Plaintiffs' opening brief for class certification and Defendant's decertification motion to no earlier than
5 April 12,2019, which would result in approximately a four (4) month continuance of the filing deadline.
6 This requested continuance would also result in only a less than two (2) month continuance to the April
7 11, 2019 hearing date.
8 The continuance is required because Defendant Health Net of Califomia, Inc. ("Defendant")
9 filed a Renewed Motion for Summary Adjudication ("Renewed MSA") on November 19, 2018 to be
10 heard on Febmary 4, 2019 which would result in Plaintiffs needing to file the motion for class
I I certification well before a mling on the Renewed MSA. Given that the result of the Renewed MSA could
12 affect the claims Plaintiffs may seek to certify and the way Plaintiffs may. present the theory of liability,
13 a continuance is needed so the motion for class certification and opposition to the decertification motion
14 can rely on the Renewed MSA mling.
15 Defendant has previously filed a motion for summary adjudication which was set to be heard
16 the day before Plaintiffs' deadline to file a motion for class certification on September 28, 2018. After
17 forcing Plaintiffs to file a motion to continue the class certification motion hearing date and briefing
18 schedule. Defendant finally stipulated to a continuance of the class certification motion filing deadline,
19 hearing date and briefing schedule until after the hearing on the motion for summary adjudication.
20 After the Court mled to grant in part and deny in part Defendant's motion for summary
21 adjudication, the Parties appeared before Judge Perkins in Department 35 for a case rhanagement
22 conference on November 9, 2018 where Defendant did not at any point state at the hearing that
23 Defendant had any intention to file a second motion for summary adjudication. Defendant's case
24 management conference statement, also, failed to express Defendant's intent to file a renewed motion
25 for summary adjudication. Rather, ten (10) days after the case management conference, Defendant blind-
26 sided Plaintiffs and the Court with the filing of the Renewed MSA.
27 Plaintiffs have been diligent in prosecuting this matter against Defendant, serving and
28 responding to discovery, taking the deposition of Defendant's Person Most Knowledgeable ("PMK"),
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1 engaging in significant motion practice, including, successfully opposing Defendant's initial motion for
2 summary adjudication. (Declaration of Piya Mukherjee 3 ("Mukherjee Decl.")).
3 In this class action. Plaintiffs assert causes of action based at least in part on Defendant's
4 failure to properly calculate Plaintiffs' and Class Members' regular rate, which results in a systemic
5 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of this issue
6 as to Defendant's miscalculation of Plaintiffs and Class Members' regular rate and corresponding failure
7 to compensate Plaintiffs and Class Members for all their overtime hours worked. Plaintiffs oppose
8 Defendant's Renewed MSA and will continue to seek redress on behalf of a class of employees who
9 were subject to this practice and who worked overtime. Plaintiffs will seek to certify a class based on
10 these allegations. To the extent Defendant's Renewed MSA is granted in any manner, it will have clear
11 implications for Plaintiffs' motion to certify a class based on the claims at issue. Because the February
12 4,2019 hearing regarding Defendant's failure to compensate its employees for all overtime hours worked
13 by failing to include all non-discretionary bonus wages in its calculation of the regular rate and the
14 subsequent order will impact Plaintiffs' motion for class certification, currently due for on December 14,
15 2018, Plaintiffs seek a continuance to the deadline for filing the motion for class certification and the
16 Defendant's deadline for filing the motion for decertification, such that Defendant's Renewed MSA will
17 be resolved prior to the certification motion deadline.
18 Since Defendant refused a reasonable request to stipulate to continue this deadline, Plaintiffs
19 were forced to file this motion in order to prevent the waste of judicial and party resources that would
20 result from having the motion for class certification filed before the hearing on Defendant's Renewed
21 MSA. For all these reasons, as detailed more fully below, Plaintiffs respectfully request the Court issue
22 an order continuing the April 11,2019 hearing date on the motions related to class certification to June
23 28, 2019, or a date thereafter convenient for the Court, and setting opening class certification and
24 decertification motion filing deadlines of no earlier than April 12, 2019, opposition deadlines of no
25 earlier than May 17,2019 and reply filing deadlines of no earlier than June 14, 2019.
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1 II. FACTUAL HISTORY
2 Plaintiff Spears's action was consolidated with Plaintiff Arana's action on October 11, 2017.
3 (Mukherjee Decl. at | 3). The plaintiffs have served multiple sets of discovery and have taken the
4 deposition of Defendant's Person Most Knowledgeable for a portion of the classifications in Plaintiff
5 Spears's Notice of Deposition of Defendant. (Id.). The Plaintiffs have met and conferred extensively
6 with Defendant regarding discovery and the Parties have engaged in substantial motion practice. (Id.)
7 The briefing schedule regarding Plaintiffs' Motion for Class Certification and Defendant's Motion for
8 Decertification was continued by the Parties by stipulation in orderto prevent requiring Plaintiffs to file
9 motions related to class certification one (1) day after the hearing on Defendant's initial motion for
10 summary adjudication. (Id. at ^ 4). Plaintiffs initially filed a motion to continue the hearing date and
II briefing schedule. (Id.). Plaintiffs' motion was eventually taken off calendar because Defendant agreed
12 to stipulate to Plaintiffs' requested continuance so that Plaintiffs' motion for class certification could
13 adequately address the Court's ruling on the motion for summary adjudication. (Id.). The current
14 briefing schedule was set as follows:
15 The motion for class certification and motion for decertification filing deadline: December
16 14,2018;
17 Any opposition to the opening class certification related motions: Febmary 15, 2019;
18 Any reply in response: March 15, 2019; and
19 Hearing as to the motions related to class certification: April 11, 2019 at 10:00 a.m. (Id.)
20 On October 23, 2018, Judge Krueger in Department 54 issued a mling granting in part and
21 denying in part Defendant's initial motion for summary adjudication. (Exhibit 1'). The intent behind
22 the continuation of the class certification motion briefing schedule was to ensure that Plaintiffs' motion
23 for class certification would be tailored to address Judge Kmeger's mling on the initial motion for
24 summary adjudication.
25 On October 26, 2018, Defendant filed and served a case management conference statement
26 which included a section regarding "dispositive motions." (Exhibit 2). Therein, while Defendant states
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All exhibits are attached to the Declaration of Piya Mukherjee, filed and served herewith.
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1 that it is considering whether to appeal the ruling on the motion for summary adjudication, Defendant
2 fails to state that it is considering filing a renewed motion for summary adjudication. (Exhibit 2.2:7-14).
3 Thereafter, the Parties appeared before this Court on November 9, 2018 for a case management
4 conference where Defendant, again, did not notify this Court or Plaintiffs that it had any intention of
5 filing a renewed motion for summary adjudication. (Mukherjee Decl., at^j 7). On November 19,2018,
6 without providing any prior notice, Defendant filed the Renewed MSA. (Id. at ^ 8).
7 On November 27, 2018, four (4) business days after Defendant served the renewed MSA,
8 Plaintiffs provided Defendant a draft stipulation to continue the hearing date and briefing schedule on
9 the motion for class certification such that the scope of the claims and the proposed class are consistent
10 with the order on the Renewed MSA, scheduled to be heard on Febmary 4,2018. (Mukherjee Decl., at
11 9-10). On November 28,2018, Defendant responded to Plaintiffs and stated that it would not agree
12 to continue the briefing schedule on the motion for class certification necessitating the filing of this
13 motion. (Exhibit 3).
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15 m . ARGUMENT
16 A court's determination as to whether class certification is appropriate does not tum on
17 whether the claims asserted are legally or factually meritorious, but it does require an examination of
18 issues involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023
19 (2012). "In particular, whether common or individual questions predominate will often depend upon
20 resolution of issues closelytiedto the merits. To assess predominance, a court 'must examine the issues
21 framed by the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (intemal
22 citations omitted).
23 A motion for summary adjudication seeks to dispose of an entire cause of action, an
24 affirmative defense, a claim for damages, or an issue of duty because such a motion "contends that the
25 cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no
26 merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages,
27 as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe
28 a duty to the plaintiff or plaintiffs." Cal. Code Civ. Proc. §437c(f)(l).
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1 Thus, a decision on a motion for summary adjudication has implications for a motion
2 for class certification. See Archer v. United Rentals, Inc., 195 Cal. App. 4th 807, 812 (201 l)(reversing
3 an order denying class certification because the court also reversed an aspect of the trial court's order
4 granting the defendant's motion for summary adjudication). A decision either way will impact the
5 definitions of the proposed classes and the claims those classes assert. Id. A decision as to the merits of
6 one or more causes of action will alter the analysis required to determine whether common questions
7 predominate because such an analysis requires an investigation as to the resolution ofthe merits ofthe
8 case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024.
9 In this class action, Plaintiffs asserts seven causes of action: (1) Failure to Provide Meal
id Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) Failure to Provide Rest
11 Periods in violation of Cal. Lab. Code §§ 204,223,226.7, and 1198; (3) Failure to Pay Hourly Wages
12 in violation of Cal. Lab. Code §§ 223,510,1194,1194.2,1197,1197.1, and 1198; (4) Failure to Provide
13 Accurate Written Wage Statements in violation of Cal. Lab. Code § 226(a); (5) Failure to Timely Pay
14 All Final Wages in violation of Cal. Lab. Code §§ 201,202, and 203; (6) Unfair Competition in violation
15 of Cal. Bus. & Prof Code §§ 17200, et seq.; and (7) Violation ofthe Private Attomeys General Act, Cal.
16 Lab. Code §§ 2698, et seq. Several of these causes of action are based, in part, on Defendant's failure
17 to properly calculate Plaintiffs' and Class Members' regular rate of pay, resulting in a systemic
18 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of the issue
19 of Defendant's miscalculation of Plaintiff and Class Members' overtime wages.
20 In ruling on whether Defendant failed to include cash in lieu payments in the regular rate, the
21 Court will base its mling on the facts relevant to this dispute. In so doing, the Court will instruct the
22 parties as to those facts that are tmly the ones that create a triable issue of fact. Therefore, learning what
23 those relevant triable issues are is critical for Plaintiffs to argue in the motion for class certification how
24 those triable issues of fact can be adjudicated based on common evidence.
25 When the class certification motion briefing schedule was reset to December 14, 2018,
26 Plaintiffs anticipated that any motions for summary adjudication would have already been mled on and
27 that the legal and factual claims would be understood. Plaintiffs did not anticipate, and Defendant did
28 not provide any indication, that a second motion for summary adjudication would be filed by Defendant
NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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1 after a mling on the first one. Simultaneous briefing on the motion for class certification and the
2 Renewed MSA will only lead to unnecessary confusion with respect to the outstanding legal and factual
3 issues. Defendant, by forcing Plaintiffs to file a motion for class certification while the Renewed MSA
4 is pending appears to be seeking a tactical advantage in order to prevent Plaintiffs from setting forth
5 certifiable theories of the case in the motion for class certification based on the Court's forthcoming
6 mling on the Renewed MSA. Because a decision as to Defendant's Renewed MSA has clear implications
7 for Plaintiffs' motion to certify a class based on Defendant's failure to compensate its employees for all
8 overtime hours worked because it failed to include all non-discretionary bonus wages in its calculation
9 of the regular rate, Plaintiffs respectfully request that the briefing schedules associated with the motions
10 related to class certification be continued such that Defendant's Renewed MSA will be resolved prior
11 to the deadline to file the motions related to class certification.
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13 IV. CONCLUSION
14 Plaintiffs respectfully request the Court issue an order continuing the April 11,2019 hearing
15 date on the motions related to class certification to June 28,2019, or a date thereafter convenient for the
16 Court, and setting the briefing schedule pursuant to Rule of Court 3.764, which would result in motion
17 filing deadlines of no earlier than April 12,2019. Efficiency and judicial economy require that briefing
18 for Plaintiffs' motion for class certification and Defendant's motion for decertification be continued.
19 Plaintiffs' requested extension is reasonable in light of the fact that it will allow the motions related to
20 class certification to be filed after a mling on Defendant's dispositive Renewed MSA to ensure that the
21 scope of the claims and proposed class set forth in the motions is consistent with the mling on the
22 Renewed MSA.
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24 DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
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26 By:.
Piya
*iya Mukh
Mukherjee
27 Counsel for Plaintiff Andre^Spears
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Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 6 Attomeys for Plaintiff Andrea Spears 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 II ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 12 similarly situated. Plaintiff, 13 CLASS ACTION V. 14 PLAINTIFF ANDREA SPEARS'S NOTICE HEALTH NET OF CALIFORNIA, FNC, a OF MOTION AND MOTION TO 15 Califomia Corporation; and Does 1 through CONTINUE HEARING DATE AND 50, inclusive. BRIEFING SCHEDULE RELATING TO 16 Defendants. CLASS CERTIFICATION; 17 TOMAS R. ARANA, on behalf of himself, all MEMORANDUM OF POINTS AND 18 others similarly situated, AUTHORITIES IN SUPPORT Plaintiff, V. 19 Hearing Date: -TOP 20 HEALTH NET OF CALIFORNIA, INC., a Hearing Time: -TBD- '21*'.^'* Califomia corporation; and DOES 1-50, Judge: Hon. Alan G. Perkins 21 inclusive. Dept.: 35 Defendant. X 22 Action Filed: April 5,2017 IJ» 23 24 25 26 27 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 c5 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on a date and time to be determined by the Court, Plaintiff 3 Andrea Spears will and hereby does move for an order continuing the December 14,2018 deadline for 4 filing Plaintiffs' opening brief for class certification and Defendant's motion for decertification, briefing 5 schedules and the associated April 11, 2019 hearing date. This motion will be heard before the 6 Honorable Alan G. Perkins, Judge of the Superior Court of the County of Sacramento. 7 This motion is brought on the grounds that good cause exists to enter the order as on 8 November 19,2018, Defendant filed a Renewed Motion for Summary Adjudication (" Renewed MSA") 9 without providing prior notice to both Plaintiffs and the Court, and unilaterally set the hearing date for 10 the Renewed MSA on Febmary 4, 2019. Because the outcome of Defendant's Renewed MSA will II affect how Plaintiffs will present the common predominance theories of liability in Plaintiffs' upcoming 12 motion for class certification as well as Plaintiffs' opposition to Defendant's forthcoming motion for 13 decertification, the interests of efficiency require that the briefing schedules for the motion for class 14 certification and motion for decertification be continued. Plaintiffs are, therefore, requesting the briefing 15 schedule continued such that the hearing on the class certification and decertification motions is on June 16 28, 2019, or a date thereafter convenient for the Court. This request, if granted, would move the filing 17 date of the motions from December 14, 2018 to no earlier than April 12, 2018, providing Plaintiffs a 18 sufficient amount of time to draft the motion based on the outcome of Defendant's Renewed MSA. 19 Counsel has made a reasonable and good faith effort to informally resolve the issues presented 20 by this motion. Defendant has unreasonably refused to cooperate in continuing the class certification 21 motion briefing schedule and hearing date. The motion will be based upon this notice, the memorandum 22 of points and authorities, the declaration of Piya Mukherjee and exhibits thereto, along with the papers 23 in the Court record and the oral argument at the hearing. 24 /// 25 /// 26 /// 27 /// 28 /// NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 1 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of 2 this matter by 2:00 p.m., the court day before the hearing. The hearing date on this motion shall 3 be set by the Court. The complete text of the tentative rulings for the department may be 4 downloaded off the court's website. If the party does not have online access, they may call the 5 dedicated phone number for the department as referenced in the local telephone directory between 6 the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative 7 ruling. If you do not call the court and opposing party on the court day before the hearing, no 8 hearing will be held. 9 DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP 10 II By: Piya Mya MukI Mukherjee 12 Attomeys for Plaintiff AnSrea Spears 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 L INTRODUCTION 3 Plaintiffs hereby moves for an Order continuing the December 14, 2018 deadline for filing 4 Plaintiffs' opening brief for class certification and Defendant's decertification motion to no earlier than 5 April 12,2019, which would result in approximately a four (4) month continuance of the filing deadline. 6 This requested continuance would also result in only a less than two (2) month continuance to the April 7 11, 2019 hearing date. 8 The continuance is required because Defendant Health Net of Califomia, Inc. ("Defendant") 9 filed a Renewed Motion for Summary Adjudication ("Renewed MSA") on November 19, 2018 to be 10 heard on Febmary 4, 2019 which would result in Plaintiffs needing to file the motion for class I I certification well before a mling on the Renewed MSA. Given that the result of the Renewed MSA could 12 affect the claims Plaintiffs may seek to certify and the way Plaintiffs may. present the theory of liability, 13 a continuance is needed so the motion for class certification and opposition to the decertification motion 14 can rely on the Renewed MSA mling. 15 Defendant has previously filed a motion for summary adjudication which was set to be heard 16 the day before Plaintiffs' deadline to file a motion for class certification on September 28, 2018. After 17 forcing Plaintiffs to file a motion to continue the class certification motion hearing date and briefing 18 schedule. Defendant finally stipulated to a continuance of the class certification motion filing deadline, 19 hearing date and briefing schedule until after the hearing on the motion for summary adjudication. 20 After the Court mled to grant in part and deny in part Defendant's motion for summary 21 adjudication, the Parties appeared before Judge Perkins in Department 35 for a case rhanagement 22 conference on November 9, 2018 where Defendant did not at any point state at the hearing that 23 Defendant had any intention to file a second motion for summary adjudication. Defendant's case 24 management conference statement, also, failed to express Defendant's intent to file a renewed motion 25 for summary adjudication. Rather, ten (10) days after the case management conference, Defendant blind- 26 sided Plaintiffs and the Court with the filing of the Renewed MSA. 27 Plaintiffs have been diligent in prosecuting this matter against Defendant, serving and 28 responding to discovery, taking the deposition of Defendant's Person Most Knowledgeable ("PMK"), NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -1- 1 engaging in significant motion practice, including, successfully opposing Defendant's initial motion for 2 summary adjudication. (Declaration of Piya Mukherjee 3 ("Mukherjee Decl.")). 3 In this class action. Plaintiffs assert causes of action based at least in part on Defendant's 4 failure to properly calculate Plaintiffs' and Class Members' regular rate, which results in a systemic 5 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of this issue 6 as to Defendant's miscalculation of Plaintiffs and Class Members' regular rate and corresponding failure 7 to compensate Plaintiffs and Class Members for all their overtime hours worked. Plaintiffs oppose 8 Defendant's Renewed MSA and will continue to seek redress on behalf of a class of employees who 9 were subject to this practice and who worked overtime. Plaintiffs will seek to certify a class based on 10 these allegations. To the extent Defendant's Renewed MSA is granted in any manner, it will have clear 11 implications for Plaintiffs' motion to certify a class based on the claims at issue. Because the February 12 4,2019 hearing regarding Defendant's failure to compensate its employees for all overtime hours worked 13 by failing to include all non-discretionary bonus wages in its calculation of the regular rate and the 14 subsequent order will impact Plaintiffs' motion for class certification, currently due for on December 14, 15 2018, Plaintiffs seek a continuance to the deadline for filing the motion for class certification and the 16 Defendant's deadline for filing the motion for decertification, such that Defendant's Renewed MSA will 17 be resolved prior to the certification motion deadline. 18 Since Defendant refused a reasonable request to stipulate to continue this deadline, Plaintiffs 19 were forced to file this motion in order to prevent the waste of judicial and party resources that would 20 result from having the motion for class certification filed before the hearing on Defendant's Renewed 21 MSA. For all these reasons, as detailed more fully below, Plaintiffs respectfully request the Court issue 22 an order continuing the April 11,2019 hearing date on the motions related to class certification to June 23 28, 2019, or a date thereafter convenient for the Court, and setting opening class certification and 24 decertification motion filing deadlines of no earlier than April 12, 2019, opposition deadlines of no 25 earlier than May 17,2019 and reply filing deadlines of no earlier than June 14, 2019. 26 27 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -2- 1 II. FACTUAL HISTORY 2 Plaintiff Spears's action was consolidated with Plaintiff Arana's action on October 11, 2017. 3 (Mukherjee Decl. at | 3). The plaintiffs have served multiple sets of discovery and have taken the 4 deposition of Defendant's Person Most Knowledgeable for a portion of the classifications in Plaintiff 5 Spears's Notice of Deposition of Defendant. (Id.). The Plaintiffs have met and conferred extensively 6 with Defendant regarding discovery and the Parties have engaged in substantial motion practice. (Id.) 7 The briefing schedule regarding Plaintiffs' Motion for Class Certification and Defendant's Motion for 8 Decertification was continued by the Parties by stipulation in orderto prevent requiring Plaintiffs to file 9 motions related to class certification one (1) day after the hearing on Defendant's initial motion for 10 summary adjudication. (Id. at ^ 4). Plaintiffs initially filed a motion to continue the hearing date and II briefing schedule. (Id.). Plaintiffs' motion was eventually taken off calendar because Defendant agreed 12 to stipulate to Plaintiffs' requested continuance so that Plaintiffs' motion for class certification could 13 adequately address the Court's ruling on the motion for summary adjudication. (Id.). The current 14 briefing schedule was set as follows: 15 The motion for class certification and motion for decertification filing deadline: December 16 14,2018; 17 Any opposition to the opening class certification related motions: Febmary 15, 2019; 18 Any reply in response: March 15, 2019; and 19 Hearing as to the motions related to class certification: April 11, 2019 at 10:00 a.m. (Id.) 20 On October 23, 2018, Judge Krueger in Department 54 issued a mling granting in part and 21 denying in part Defendant's initial motion for summary adjudication. (Exhibit 1'). The intent behind 22 the continuation of the class certification motion briefing schedule was to ensure that Plaintiffs' motion 23 for class certification would be tailored to address Judge Kmeger's mling on the initial motion for 24 summary adjudication. 25 On October 26, 2018, Defendant filed and served a case management conference statement 26 which included a section regarding "dispositive motions." (Exhibit 2). Therein, while Defendant states 27 28 All exhibits are attached to the Declaration of Piya Mukherjee, filed and served herewith. NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -3- 1 that it is considering whether to appeal the ruling on the motion for summary adjudication, Defendant 2 fails to state that it is considering filing a renewed motion for summary adjudication. (Exhibit 2.2:7-14). 3 Thereafter, the Parties appeared before this Court on November 9, 2018 for a case management 4 conference where Defendant, again, did not notify this Court or Plaintiffs that it had any intention of 5 filing a renewed motion for summary adjudication. (Mukherjee Decl., at^j 7). On November 19,2018, 6 without providing any prior notice, Defendant filed the Renewed MSA. (Id. at ^ 8). 7 On November 27, 2018, four (4) business days after Defendant served the renewed MSA, 8 Plaintiffs provided Defendant a draft stipulation to continue the hearing date and briefing schedule on 9 the motion for class certification such that the scope of the claims and the proposed class are consistent 10 with the order on the Renewed MSA, scheduled to be heard on Febmary 4,2018. (Mukherjee Decl., at 11 9-10). On November 28,2018, Defendant responded to Plaintiffs and stated that it would not agree 12 to continue the briefing schedule on the motion for class certification necessitating the filing of this 13 motion. (Exhibit 3). 14 15 m . ARGUMENT 16 A court's determination as to whether class certification is appropriate does not tum on 17 whether the claims asserted are legally or factually meritorious, but it does require an examination of 18 issues involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 19 (2012). "In particular, whether common or individual questions predominate will often depend upon 20 resolution of issues closelytiedto the merits. To assess predominance, a court 'must examine the issues 21 framed by the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (intemal 22 citations omitted). 23 A motion for summary adjudication seeks to dispose of an entire cause of action, an 24 affirmative defense, a claim for damages, or an issue of duty because such a motion "contends that the 25 cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no 26 merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, 27 as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe 28 a duty to the plaintiff or plaintiffs." Cal. Code Civ. Proc. §437c(f)(l). NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -4- 1 Thus, a decision on a motion for summary adjudication has implications for a motion 2 for class certification. See Archer v. United Rentals, Inc., 195 Cal. App. 4th 807, 812 (201 l)(reversing 3 an order denying class certification because the court also reversed an aspect of the trial court's order 4 granting the defendant's motion for summary adjudication). A decision either way will impact the 5 definitions of the proposed classes and the claims those classes assert. Id. A decision as to the merits of 6 one or more causes of action will alter the analysis required to determine whether common questions 7 predominate because such an analysis requires an investigation as to the resolution ofthe merits ofthe 8 case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024. 9 In this class action, Plaintiffs asserts seven causes of action: (1) Failure to Provide Meal id Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) Failure to Provide Rest 11 Periods in violation of Cal. Lab. Code §§ 204,223,226.7, and 1198; (3) Failure to Pay Hourly Wages 12 in violation of Cal. Lab. Code §§ 223,510,1194,1194.2,1197,1197.1, and 1198; (4) Failure to Provide 13 Accurate Written Wage Statements in violation of Cal. Lab. Code § 226(a); (5) Failure to Timely Pay 14 All Final Wages in violation of Cal. Lab. Code §§ 201,202, and 203; (6) Unfair Competition in violation 15 of Cal. Bus. & Prof Code §§ 17200, et seq.; and (7) Violation ofthe Private Attomeys General Act, Cal. 16 Lab. Code §§ 2698, et seq. Several of these causes of action are based, in part, on Defendant's failure 17 to properly calculate Plaintiffs' and Class Members' regular rate of pay, resulting in a systemic 18 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of the issue 19 of Defendant's miscalculation of Plaintiff and Class Members' overtime wages. 20 In ruling on whether Defendant failed to include cash in lieu payments in the regular rate, the 21 Court will base its mling on the facts relevant to this dispute. In so doing, the Court will instruct the 22 parties as to those facts that are tmly the ones that create a triable issue of fact. Therefore, learning what 23 those relevant triable issues are is critical for Plaintiffs to argue in the motion for class certification how 24 those triable issues of fact can be adjudicated based on common evidence. 25 When the class certification motion briefing schedule was reset to December 14, 2018, 26 Plaintiffs anticipated that any motions for summary adjudication would have already been mled on and 27 that the legal and factual claims would be understood. Plaintiffs did not anticipate, and Defendant did 28 not provide any indication, that a second motion for summary adjudication would be filed by Defendant NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -5- 1 after a mling on the first one. Simultaneous briefing on the motion for class certification and the 2 Renewed MSA will only lead to unnecessary confusion with respect to the outstanding legal and factual 3 issues. Defendant, by forcing Plaintiffs to file a motion for class certification while the Renewed MSA 4 is pending appears to be seeking a tactical advantage in order to prevent Plaintiffs from setting forth 5 certifiable theories of the case in the motion for class certification based on the Court's forthcoming 6 mling on the Renewed MSA. Because a decision as to Defendant's Renewed MSA has clear implications 7 for Plaintiffs' motion to certify a class based on Defendant's failure to compensate its employees for all 8 overtime hours worked because it failed to include all non-discretionary bonus wages in its calculation 9 of the regular rate, Plaintiffs respectfully request that the briefing schedules associated with the motions 10 related to class certification be continued such that Defendant's Renewed MSA will be resolved prior 11 to the deadline to file the motions related to class certification. 12 13 IV. CONCLUSION 14 Plaintiffs respectfully request the Court issue an order continuing the April 11,2019 hearing 15 date on the motions related to class certification to June 28,2019, or a date thereafter convenient for the 16 Court, and setting the briefing schedule pursuant to Rule of Court 3.764, which would result in motion 17 filing deadlines of no earlier than April 12,2019. Efficiency and judicial economy require that briefing 18 for Plaintiffs' motion for class certification and Defendant's motion for decertification be continued. 19 Plaintiffs' requested extension is reasonable in light of the fact that it will allow the motions related to 20 class certification to be filed after a mling on Defendant's dispositive Renewed MSA to ensure that the 21 scope of the claims and proposed class set forth in the motions is consistent with the mling on the 22 Renewed MSA. 23 24 DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 25 26 By:. Piya *iya Mukh Mukherjee 27 Counsel for Plaintiff Andre^Spears 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -6-