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1 BLUMENTHAL NORDREHAUG BHOWMIK DE B
Norman B. Blumenthal (SBN 068687)
2 Aparajit Bhowmik (State Bar #248066)
Jeffrey S. Herman (State Bar #280058)
3 2255 Calle Clara
La Jolla, CA 92037
4 Tel: 858.551.1223
Fax: 858.551.1232
5 norm@bamlawca.com
6 Attomeys for Plaintiff
ANDREA SPEARS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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ANDREA SPEARS, an individual, on behalf CaseNo. 34-2017-00210560-CU-OE-GDS
12 of herself and on behalf of all persons
similarly situated, CLASS ACTION
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14 Plaintiff, PLAINTIFF SPEARS'S NOTICE OF
15 MOTION AND MOTION TO CONTINUE
vs. HEARING DATE AND BRIEFING
16 SCHEDULE RE: PLAINTIFFS' MOTION
HEALTH NET OF CALIFORNIA, INC., a FOR CLASS CERTIFICATION;
17 Califomia Corporation; and Does 1 through
50, Inclusive, MEMORANDUM OF POINTS AND
18 AUTHORITIES IN SUPPORT;
19 Defendants.
DECLARATION OF VICTORIA B.
20 TOMAS R. ARANA, on behalf of himself, all RIVAPALACIO IN SUPPORT THEREOF
others similarly situated.
21 Hearing Date: August 16,2018
22 Plaintiff, Hearing Time: 1:30 p.m.
Judge: Hon. Alan G. Perkins
23 vs. Dept.: 35
24 HEALTH NET OF CALIFORNIA, INC., a Action Filed: April 5,2017
Califomia corporation; and DOES 1 through
25 50, inclusive.
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Defendants.
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on August 16, 2018 at 1:30 p.m.. Plaintiff Andrea Spears
3 will and hereby does move for an order continuing Plaintiffs September 28, 2018 deadline to file
4 a motion for class certification and the associated Febmary 1, 2019 hearing date. This motion will
5 be heard before the Honorable Alan G. Perkins, Judge of the Superior Court of the County of
6 Sacramento.
7 This motion is brought on the grounds that good cause exists to enter the order as the hearing
8 on Defendant's Motion for Summary Adjudication ("MSA") was continued to September 27,2018,
9 one day prior to Plaintiffs' current deadline to file their motion for class certification, September
10 28, 2018. Because the outcome of Defendant's MSA will affect how Plaintiff will-present the
11 common predominance theories of liability in Plaintiffs' upcoming motion for class certification,
12 the interests of efficiency require that the deadline for the motion for class certification be
13 continued. PlaintifF is, therefore, requesting a briefing schedule set per Rule of Court 3.764 and
14 continued such that the hearing is on March 8, 2019, or a date thereafter convenient for the Court.
15 This request, if granted, would move the filing date of the motion from September 28, 2018 to no
16 earlier than February 8, 2019, a sufficient time to draft the motion based on the outcome of
17 Defendanf s MSA.
18 Counsel has made a reasonable and good faith effort to informally resolve the issues
19 presented by this motion. The motion will be based upon this notice, the memorandum of points
20 and authorities, the declaration of Victoria B. Rivapalacio and exhibits thereto, along with the
21 papers in the Court record and the oral argument at the hearing.
22 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of
23 this niatter by 2:00 p.m., the court day before the hearing. The complete text of tbe tentative
24 rulings for the department may be downloaded off the court's website. If the party does not
25 have online access, they may call the dedicated phone number for the department as
26 referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on
27 the court day before the hearing and receive the tentative ruling. Ifyou do not call the court
28 and opposing party on tbe court day before the bearing, no bearing will be held.
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
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DATED: July 16, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK
2 DE BLOUW LLP
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Victoria B. Rivapalacio
5 Attomeys for Plaintiff
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PLAINTIFF SPEARS'S NOTICE OF MOTION ANDMOTION CONTINUE CLASS CERTIFICATION
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiff hereby applies for an Order continuing the September 28, 2018 class certification
4 motion filing deadline to no earlier than February 8, 2019, which would result in approximately a
5 four (4) month continuance of the filing deadline. This requested continuance would result in only
6 a single month continuance to the Febmary 1, 2019 hearing date as the briefing schedule can be set
7 pursuant to Rule of Court 3.764.
8 The continuance is required because Defendant Health Net of Califomia, Inc. ("Defendant")
9 has set a Motion for Summary Adjudication ("MSA") to be heard the day before Plaintiffs deadline
10 to file the motion for class certification. Given that the result of the MSA could affect the claims
11 Plaintiffs may seek to certify and the way Plaintiffs may present the theory of liability, a
12 continuance is needed to the motion can rely on the MSA mling.
13 Defendant's delays in producing documents also justifies a continuance. At the time the
14 schedule was set. Plaintiff was anticipating compliance with Plaintiffs discovery. Plaintiff was
15 forced to file a motion to compel discovery, which was heard on April 17,2018 and finally resolved
16 by stipulation and order on June 18, 2018. That order required Defendant to produce Class
17 Members' payroll by July 6,2018 and, as of the filing of this motion, Plaintiff has not received the
18 documents subject to the order.
19 In allowing the time for the production of this discovery, the Court continued the hearing
20 on Defendant's MSA from May 30,2018 to September 27,2018, one day before Plaintiff s current
21 motion for class certification deadline. (R. Decl., Ex. 1.) Therefore, since the MSA was continued
22 by four (4) months. Plaintiffs request here for a similar continuance is entirely reasonable.
23 Plaintiff has been diligent in prosecuting this matter against Defendant, serving and
24 responding to discovery, taking the deposition of Defendant's Person Most Knowledgeable
25 ("PMK"), engaging in significant motion practice, including, recently, opposing Defendant's MSA.
26 (Declaration of Victoria B. Rivapalacio ("R. Decl.") 1| 4 & 6.)
27 In this class action. Plaintiff asserts causes of action based at least in part on Defendant's
28 failure to properly calculate Plaintiffs and Class Members' regular rate, which results in a systemic
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 underpayment of wages to these employees. Defendant's MSA seeks to dispose ofthis issue as to
2 Defendant's miscalculation of Plaintiff and Class Members' regular rate and corresponding failure
3 to compensate Plaintiff and Class Members for all their overtime hours worked. Plaintiff opposes
4 Defendant's MSA and will continue to seek redress on behalf of a class of employees who were
5 subject to this practice and who worked overtime. Plaintiffs will seek to certify a class based on
6 these allegations. To the extent Defendant's MSA is granted, it will have clear implications for
7 Plaintiffs motion to certify a class based on the claims at issue. Because the hearing on September
8 27, 2018 regarding Defendant's failure to compensate its employees for all overtime hours worked
9 because it failed to include all non-discretionary bonus wages in its calculation of the regular rate
10 and the subsequent order will impact Plaintiffs' motion for class certification, currently due for
11 filing the following day, on September 28, 2018, Plaintiff seeks here a continuance to the deadline
12 for filing the motion for class certification, such that Defendant's MSA will be resolved prior to the
13 certification motion deadline.
14 Because Defendant refused a reasonable request to stipulate to continue this deadline,
15 Plaintiff was forced to file this motion in order to prevent the waste of judicial and party resources
16 that would result from having the motion for class certification filed the day after the hearing on
17 Defendant's MSA. For all these reasons, as detailed more fully below. Plaintiff respectfiilly
18 requests the Court issue an order continuing the February 1,2019 hearing date on Plaintiff s motion
19 for class certification to March 8, 2019, or a date thereafter convenient for the Court, and setting
20 the briefing schedule pursuant to Rule of Court 3.764, which would result in a motion filing
21 deadline of no earlier than February 8, 2019.
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23 II. FACTUAL HISTORY
24 PlaintifF Spears's action was consolidated with Plaintiff Arana's action on October 11,
25 2017. (R. Decl. ^ 3.) The plaintiffs have served multiple sets of discovery and have taken the
26 deposition of Defendant's Person Most Knowledgeable ("PMK") for a portion of the classifications
27 in Plaintiff Spears's Notice of Deposition of Defendant. (R. Decl. K 4.) Plaintiff Spears,
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 speciflcally, has met and conferred extensively with Defendant regarding discovery and the Parties
2 have engaged in substantial motion practice. (Id.)
3 The briefing schedule regarding Plaintiffs Motion for Class Certification was set at a Case
4 Management Conference held on March 29, 2018. (R. Decl. ^ 5.) The briefing schedule was set as
5 follows:
6 - The motion for class certification filing deadline: September 28, 2018;
7 - Any opposition to Plaintiffs class certification motion: November 27,2018;
8 - Any reply in response: January 4, 2019; and
9 - Hearing as to Plaintiffs motion for class certification: February .1, 2019 at 10:30 a.m. (Id.)
10 Defendant filed a Motion for Summary Adjudication ("MSA") on Febmary 5, 2018, setting
11 the hearing for April 26, 2018. (R. Decl. ^ 6.) The Opposition and Reply were filed by code. (Id.)
12 On April 26, 2018, the Court continued the hearing to May 30, 2018. (Id.) On May 30, 2018, the
13 Court ordered a limited, discovery-related continuance to the MSA hearing to allow resolution of
14 a discovery dispute as to discovery relevant to the MSA to occur prior to a mling on the substance
15 of Defendant's MSA. (R. Decl., Ex. 1.) Notably, this discovery is also extremely relevant to
16 Plaintiffs motion for class certification. The discovery hearing was set for June 19, 2018 so, to
17 allow for compliance if the discovery motion was granted, the Court set the MSA hearing for
18 September 27, 2018.' (Id.)
19 On May 31, 2018, Plaintiff sent correspondence to Defendant requesting to stipulate to
20 continue the briefmg schedule regarding Plaintiffs motion for class certification based on the new
21 timing of Defendant's MSA. (R. Decl., Ex. 3.) Defendant refused any extension. (Id.)
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' The Parties stipulated to the production of the at-issue discovery such that the niatter set for June 19, 2018 was
28 dropped. (R. Decl. ^ 7.) Pursuant to the stipulation, Defendant was to have produced the discovery by July 6,2018.
(R. Decl., Ex. 2.) As of this filing, no documents have been produced. (R. Decl. ^ 7.)
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
A court's determination as to whether class certification is appropriate does not tum on
whether the claims asserted are legally or factually meritorious, but it does require an examination
of issues involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004,
1023 (2012). "In particular, whether common or individual questions predominate will often
depend upon resolution of issues closely tied to the merits. To assess predominance, a court 'must
examine the issues framed by the pleadings and the law applicable to the causes of action alleged.'"
Id. at 1024 (intemal citations omitted).
A motion for summary adjudication seeks to dispose of an entire cause of action, an
affirmative defense, a claim for damages, or an issue of duty because such a motion "contends that
the cause of action has no merit, that there is no affirmative defense to the cause of action, that there
is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for
damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed
or did not owe a duty to the plaintiff or plaintiffs." Cal. Code Civ. Proc. §437c(f)(l).
Thus, a decision on a motion for summary adjudication has implications for a motion for
class certification. See Archer v. United Rentals, Inc., 195 Cal. App. 4th 807, 812 (201 l)(reversing
an order denying class certification because the court also reversed an aspect of the trial court's
order granting the defendant's motion for summary adjudication). A decision either way will impact
the definitions of the proposed classes and the claims those classes assert. Id. A decision as to the
merits of one or more causes of action will alter the analysis required to determine whether common
questions predominate because such an analysis requires an investigation as to the resolution of the
merits ofthe case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024.
In this class action. Plaintiff asserts seven causes of action: (1) Failure to Provide Meal
Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) Failure to Provide
Rest Periods in violation of Cal. Lab. Code §§ 204,223,226.7, and 1198; (3) Failure to Pay Hourly
Wages in violation of Cal. Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198; (4)
Failure to Provide Accurate Written Wage Statements in violation of Cal. Lab. Code § 226(a); (5)
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 Failure to Timely Pay All Final Wages in violation of Cal. Lab. Code §§ 201, 202, and 203; (6)
2 Unfair Competition in violation of Cal. Bus. & Prof Code §§ 17200, et seq. ; and (7) Violation of
3 the Private Attomeys General Act, Cal. Lab. Code §§ 2698, et seq. Several of these causes ofaction
4 are based, in part, on Defendant's failure to properly calculate Plaintiffs and Class Members'
5 regular rate, resulting in a systemic underpayment of wages to these employees. Defendant's MSA
6 seeks to dispose of the issue of Defendant's miscalculation of Plaintiff and Class Members'
7 overtime wages.
8 In mling on whether Defendant failed to include cash in lieu payments in the regular rate,
9 the Court will base its mling on the facts relevant to this dispute. In so doing, the Court will instruct
10 the parties as to those facts that are tmly the ones that create a triable issue of fact. Therefore,
11 learning what those relevant triable issues are is critical for Plaintiff to argue in the motion for class
12 certification how those triable issues of fact can be adjudicated based on common evidence.
13 Because a decision as to Defendant's MSA has clear implications for Plaintiffs motion to
14 certify a class based on Defendant's failure to compensate its employees for all overtime hours
15 worked because it failed to include all non-discretionary bonus wages in its calculation ofthe
16 regular rate. Plaintiff respectfully requests that the deadline for filing the motion for class
17 certification be continued such that Defendant's MSA will be resolved prior to the deadline.
18 B. Defendant's Failure to Produce Discovery Merits a Continuation of Plaintiffs'
Motion for Class Certification Briefing Schedule
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20 The FLSA, like Califomia law, requires employers to pay an overtime compensation rate
21 of one and one-half times the "regular rate of pay." (29 U.S.C. § 207(a)). The regular rate
22 includes "all remuneration for employment paid to, or on behalf of, the employee" (29 U.S.C. §
23 207(e)), subject to certain exclusions enumerated by statute.
24 Defendant's exclusion was recently examined in Flores v. City of San Gabriel, 824 F.3d
25 890 (9th Cir. 2016), where The City of San Gabriel (the City) was an employer that maintained a
26 flexible benefits plan under which a designated monetary amount was credited to each employee
27 for the purchase ofmedical, vision, and dental benefits. Flores, supra, 824 F.3d 890 at 896. An
28 employee could opt out of using the portion ofthe funds that were to go toward medical benefits
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 if that employee had altemate medical coverage and that unused portion of funds was distributed
2 directly to the employee as a cash payment. Id. The trial court held that the City's cash-in-lieu
3 payments were improperly excluded by the City from its calculation of the regular rate of pay of
4 its employees for purposes of overtime. Id. at 897.
5 Plaintiff, here, will demonstrate that the Flores conclusion applies and can be resolved on
6 a classwide basis. As evidence that common issues of fact and law predominate. Plaintiff will
7 analyze the payroll records of Class Members and provide the Court with a trial plan, capable of
8 resolution without turning to an individualized inquiry.
9 When the class certification motion briefmg schedule was set on March 28, 2018, Plaintiff
10 anticipated that the necessary discovery would be provided in the intervening six (6) months
11 between then and the filing deadline. Defendant, however, has delayed the production of
12 significant portions of discovery and forced extensive motion practice. Indeed, even tbe
13 documents Defendant agreed to provide by July 6,2018 pursuant to tbe stipulation that
14 took tbe June 19,2018 discovery hearing off-calendar have yet to be produced. (R. Decl. ^
15 7.) Such tactics have limited Plaintiffs progress and are a fiirther reason why Plaintiffs deadline
16 to file should be continued.
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18 IV. CONCLUSION
19 For the foregoing reasons. Plaintiff respectfully requests the Court issue an order continuing
20 the Febmary 1,2019 hearing date on Plaintiffs motion for class certification to March 8, 2019, or
21 a date thereafter convenient for the Court, and setting the briefing schedule pursuant to Rule of
22 Court 3.764, which would result in a motion filing deadline of no earlier than Febmary 8, 2019.
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DATED: July 16, 2018 BLUMENTHAL NORDREHAUG BHOWMIK
24 DE BLOUW LLP
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26 By:_
•ia B. Rivapalaci6
Victoria Rivapalacif
27 Counsel for Plaintiff Spears
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 I, Victoria B. Rivapalacio, declare as follows:
3 1. I am an attomey with the law firm of Blumenthal Nordrehaug Bhowmik De Blouw,
4 LLP ("BNBD"), counsel of record for Plaintiff Spears in the above-entitled action. As such, I am
5 fully familiar with the facts, pleadings and history of this matter. The following facts are within my
6 own personal knowledge, and if called as a witness, I could testify competently to the matters stated
7 herein.
8 2. This declaration is being submitted in support of Plaintiff s motion to continue the
9 briefing schedule re Plaintiffs' motion for class certification.
10 3. Plaintiff Spears's action was consolidated with PlaintifF Arana's action on October
11 11,2017.
12 4. Plaintiffs have served and responded to multiple sets of discovery and have taken
13 the deposition of Defendant's Person Most Knowledgeable ("PMK") for a portion of the
14 classifications in Plaintiff Spears' s Notice of Deposition of Defendant. Plaintiff Spears has met and
15 conferred extensively with Defendant regarding discovery and the Parties have engaged in
16 substantial motion practice.
17 5. The briefing schedule regarding Plaintiffs Motion for Class Certification was set at
18 a Case Management Conference held on March 29,2018. The briefing schedule was set as follows:
19 - The motion for class certification filing deadline: September 28, 2018;
20 - Any opposition to Plaintiffs class certification motion: November 27,2018;
21 - Any reply in response: January 4, 2019; and
22 - Hearing as to Plaintiffs motion for class certification: Febmary. 1,2019 at 10:30 a.m.
23 6. Defendant filed a Motion for Summary Adjudication ("MSA") on Febmary 5,2018,
24 setting the hearing for April 26, 2018. The Opposition and Reply were filed by code. On April 26,
25 2018, the Court continued the hearing to May 30, 2018. On May 30, 2018, the Court ordered a
26 limited, discovery-related continuance to the MSA hearing to allow resolution of a discovery
27 dispute as to discovery relevant to the MSA to occur prior to a mling on the substance of
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
1 Defendant's MSA. A tme and correct copy of the Order of May 30, 2018 regarding Defendant's
2 Motion for Summary Adjudication is attached as Exhibit 1.
3 7. As to the then-pending discovery dispute, the Parties stipulated to the production of
4 the discovery such that the hearing set for June 19, 2018 was dropped. A tme and correct copy of
5 the stipulation regarding the discovery dispute is attached as Exhibit 2. Despite the agreement in
6 the stipulation that the electronic time and payroll records ofthe Class Members would be produced
7 by July 6, 2018, Defendant has yet to produce the documents.
8 8. On May 31, 2018, the day after the MSA hearing was continued to September 27,
9 2018, PlaintifF requested that the Parties stipulate to continue the class certification briefing
10 schedule such that Plaintiffs motion would no longer be due for filing the day after the hearing on
11 Defendant's MSA. Defendant refused, offering no justification. A tme and correct copy of the email
12 exchange is attached as Exhibit 3.
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14 I declare under penalty of perjury under the laws of the State of Califomia and the United
15 States that the foregoing is tme and correct. Executed this 16th day of July, 2018 at La Jolla,
16 Califomia.
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Victoria B. Rivapalacio
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASSCERTIFICATION
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 05/30/2018 TIME: 09:00:00 AM DEPT: 54
JUDICIAL OFFICER PRESIDING: Christopher Krueger
CLERK: D.Taylor
REPORTER/ERM:
BAILIFF/COURT ATTENDANT: R. Mays, M. Oreschak
CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017
CASE TITLE: Spears vs. Health Net of California Inc
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Summary Judgment and/or Adjudication - Civil Law and Motion -
MSA/MSJ/SLAPP
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
Nature of Proceeding: Motion for Summary Adjudication
TENTATIVE RULING
Defendant Health Net of California, Inc's ("HNCA") Motion for Summary Adjudication as against the
Third and Seventh Causes of Action In the Consolidated Complaint of Plaintiffs Andrea Spears and
Tomas R. Arana (collectively, "Plaintiffs") Is CONTINUED TO September 27, 2018 at 9 a.m. in this
Department.
Plaintiff Andrea Spears ("Plaintiff") has opposed the Motion and requested that Defendant's motion for
summary adjudication be denied in Its entirety because Defendant has not provided
previously-requested discovery that Plaintiff claims Is required for the Opposition. While the Court is not
persuaded that an outright denial of the instant motion is warranted here, the Court in its discretion will
continue the hearing on this motion so that Plaintiffs currently-pending motion to compel responses to
Request for Production 20-21 ("RFPs 20-21) can first be ruled upon. In the event the Court grants that
motion, a limited, discovery-related continuance of the Instant Motion for Summary Adjudication will
allow the Court to consider, and Defendant to respond to, the outstanding discovery that Plaintiff claims
she has been unable to obtain to date. (The Court herein makes absolutely no determination on the
merits of PlaintifTs still-pending motion to compel responses to RFPs 20-21; the Court finds only
that the Instant Motion for Summary Adjudication must be continued so that motion can be ruled
upon and, jf granted, complied with.)
The continued hearing on Plaintiff's motion to compel RFP Nos. 20-21 (payroll records) is cun-ently set
for June 19, 2018.
Code of Civil Procedure section 437c, subdivision (h), provides that "[i]f it appears from affidavits
submitted in opposition to a motion for summary judgment or summary adjudication or both that facts
essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall
deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make
any other order as may be just." A request for a discovery-related continuance may simply be made in
DATE: 05/30/2018 MINUTE ORDER Pagel
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
the opposition to the motion for summary judgment, and must merely be supported by declarations
showing facts that justify the requested continuance. (Combs v. Skyriver Communications, Inc. (2008)
159 Cal.App.4th 1242, 1270; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350,
1353.) "A declaration In support of a request for continuance under section 437c, subdivision (h) must
show: '(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe
such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.'"
(Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (citation omitted).) The decision to grant a
continuance under Code of Civil Procedure section 437c, subdivision (h), falls within the discretion of the
trial court. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72.)
Here, the Court construes the discovery-based arguments in Plaintiff's Opposition as a request for a
discovery-related continuance. (Opp'n at 12-13.) Defendant is correct that this request is not
accompanied by any supporting affidavit or declaration, such that a continuance Is not mandatory.
However, even absent a supporting declaration, a trial court must consider a request for a
discovery-related continuance, and it is an abuse of discretion to refuse the continuance when papers
show the proposed discovery to be "essential" to opposing the motion. (Lerma v. County of Orange
(2004) 120 Cal.App.4th 709, 716; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632,
643-44.) Usually, the court's discretion should be exercised in favor of granting a continuance: "The
interests at stake are too high to sanction the denial of a continuance without good reason." (Frazee v.
Seely (2002) 95 Cal.App.4th 627, 634; see also Hamilton v. Orange County Sheriff's Dept. (2017) 8
Cal.App.5th 759, 765-66.)
"Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may
seek a continuance under the ordinary discretionary standard applied to requests for a continuance."
(Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765.) "This requires a showing of
good cause." (Id.) "[I]n deciding whether to continue a summary judgment to permit additional discovery
courts consider various factors. Including (1) how long the case has been pending; (2) how long the
requesting party had to oppose the motion; (3) whether the continuance motion could have been made
earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior
continuances for the same reason; and (6) the question whether the evidence sought is truly essential to
the motion." (Id. (citing Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644).)
Plaintiff's Opposition identifies three of Defendant's Undisputed Facts ("UF"), UF Nos. 14, 15, and 19:
Fact No. 14: The exact amount of 'Flex Dollars' to which a Participant was entitled to varied depending
on the medical and dental plans that he or she chose, the number of dependents covered and the
Participant's geographic location, but generally, the amount was less than the total cost of the beneflt(s)
that a participant elected.
Fact No. 15: In a vast majority of cases, the Participant was required to contribute some amount toward
the cost of the benefit(s) he or she selected, and the portion of the benefit coverage was deducted from
his or her paycheck.
Fact No. 19: In each of the Plan years 2013, 2014, 2015 and 2016, the total cash benefits provided to
Participants who waived dental and/or medical coverage represented a very small percentage of
HNCA's contributions provided under the Plan for the elected dental and/or medical coverage: 1/4% in
2013, 1.3% in 2014; 0.9% In 2015; and 0.9% In 2016.
Plaintiffs Opposition also articulates how her previously-propounded RFP Nos. 20-21 (which seek
payroll records for the putative class members) would yield evidence necessary to refute these specific
UFs. Again, the continued hearing on Plaintiffs motion to compel RFP Nos. 20-21 (payroll records) Is
currently set for June 19, 2018.
DATE: 05/30/2018 MINUTE ORDER Page 2
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
Plaintiff argues that her receipt of such discovery is "essential" to opposing these specific UFs. Plaintiffs
Opposition argues that "[a] review of these payroll records is needed by Plaintiff In order to be able to
ascertain whether... the overall amount of Flex Dollars was or was not less than the cost of the benefits
that the participants elected with regard to Fact No. 14. This discovery would be pertinent to the Issue of
whether Defendant properiy excluded from the overtime payments the benefits payments made directly
to the trustee coded on Plaintiffs wage statement as 'DenFlxElct.'" (Opp'n at 12.) "The payroll data
would also allow Plaintiff to ascertain whether in the "vast majority of cases" participants had portions of
benefits coverage deducted from his or her paycheck with regard to Fact No. 15. Defendant should not
be permitted to object on the one hand that turning over such discovery is burdensome, while on the
other hand Defendant Is secretly reviewing and processing the same classwide discovery for
Defendant's own benefit." (Opp'n at 13.) "The same goes for Defendant's representations In Fact No.
19 regarding the total amount of cash benefits provided to all Plan Participants on a classwide basis.
Plaintiff would have been able to review and corroborate whether Defendant's factual claims were true,
had Defendant complied with Plaintiffs discovery request for the payroll data of Class Members. . . . If
Plaintiffs' review of the data shows that Defendant's calculations were Incorrect and the cash payments
were not small In comparison with Defendant's contributions, then Plaintiff would be able to argue that
Defendant's plan was not bona fide such that the payments Defendant made for benefits directly to the
trustee or third party should have been included in the overtime rate of pay." (Opp'n at 13.)
Defendant argues that Plaintiff's RFP Nos. 20-21 "do not contain the infonnation" necessary to render
UF Nos. 14, 15, and 19 as "disputed." (Reply at 5.) This is because, according to Defendant, the
requested payroll records "would not provide a complete picture of what one needs to know to determine
that the fifth requirement [of the Benefit-Plan Contributions Exception] is satisfied." (Reply at 5.) The
Court is not persuaded that the fact that the payroll records would not suffice to "determine that the fifth
requirement" Is satisfied shows that the discovery is not essential here. It Is not Plaintiff's burden to
prove that any such requirement is "satisfied" on the instant Motion; and it Is not Plaintiff's burden to
provide a "complete picture" of contributions and benefits practices. Instead, Plaintiff must merely show
that Defendant's UFs - as phrased by Defendant - are unsupported and/or give rise to a material factual
dispute. Defendant's UFs 14, for instance, makes the factual assertion that "generally, the amount of
[Flex Dollars to which a Plan Participant was entitled] was less than the total cost of the benefit(s) that a
participant elected." (UF No. 14.) Plaintiff argues that her requested discovery could potentially
disprove this factual assertion. Although the Court makes no determination at this time regarding the
materiality of this particular "fact," Plaintiff has persuaded the Court that RFPs 20-21 (payroll records)
could potentially yield evidence essential to rendering UF No. 14 disputed.
The Court finds that in this particular case, the balance tips in favor of allowing a discovery-related
continuance of the instant Motion for Summary Adjudication. This is not a case where Plaintiffs have
had multiple years to complete discovery, for Instance, and this case is not on the eve of trial. In fact, no
trial date has yet been set. This case was Initiated just over a year ago, in April of 2017, with a First
Amended Complaint filed on June 29, 2017.
To the extent that Defendant argues that Plaintiffs were dilatory in conducting discovery, the case cited
by Defendant is not persuasive. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [plaintiff's
counsel "acknowledged that he Intentionally delayed discovery for tactical reasons"].) Here, there has
been no admission of intentional, tactical delay by Plaintiff with respect to discovery. Indeed, Defendant
filed the instant Motion for Summary Adjudication on February 2, 2018, and Plaintiff filed motions to
compel the subject previously-propounded discovery on March 20, 2018. The Court heard the various
discovery motions on April 16, 2018, ultimately granted some of the motions in part, and continued
others - like the one regarding RFPs 20-21 - for further hearing set in June 2018. At least some of
Plaintiffs discovery motions have been found to have merit, such that Defendant has been ordered to
provide the discovery.
DATE: 05/30/2018 MINUTE ORDER Page 3
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
The Court finds adequate justification here to grant a continuance to allow Plaintiff time to complete the
discovery she contends is necessary to oppose the instant Motion. In doing so, the Court does not give
any Indication whether such evidence will ultimately be relevant or admissible in connection with
Plaintiffs Opposition to the instant Motion for Summary Adjudication. The Court finds only that Plaintiff
has made a sufficient showing under section 437c, subdivision (h), to justify the exercise of discretion
and grant of the requested continuance.
The instant Motion for Summary Adjudication will now be heard on September 27, 2018 at 9 a.m. in this
Department, unless the parties stipulate to a later date.
Assuming no such stipulation. Plaintiff may file and serve amended Opposition papers and Response to
the Separate Statement no later than August 24, 2018, while Defendants may file and serve their Reply
to the amended Opposition no later than September 14, 2018. Should the parties stipulate to a later
hearing date, they must also stipulate to a briefing schedule whereby the Reply papers are filed at least
30 days before the hearing date.
In the event Plaintiffs pending motion to compel regarding RFPs 20-21 (payroll records) Is denied, no
further briefing regarding the instant Motion for Summary Adjudication will be permitted, and the Court
will hear the Motion on fhe continued hearing date based on the briefing currently on file.
The minute order is effective Immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
COURT RULING
The Court affirmed the tentative ruling.
The Motion for Summary Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP is scheduled for
09/27/2018 at 09:00 AM in Department 54.
DATE: 05/30/2018 MINUTE ORDER Page 4
DEPT: 54 Calendar No.
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26 Exhibit 2
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PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION
\n w:- ?j-.i;r.
I TIMOTHY J. LONG (STATE BAR NO. 137591)
tilonGf?i)orrick.com J(l)5 JUM (8 PM !:
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhortonfir7>orriclc.coni
3 ORRICK. HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall
4 Suite 3000
Sacramcnto, CA 95814-4497
5 Telephone: +1 916 447 9200
Facsimile: +1 916 329 4900
6
STEPHANIE GAIL LEE (STATE BAR NO. 285379)
7 stcphanic.lcc@orrick.coni
ORRJCK. HERRINGTON & SUTCLIFFE LLP
8 777 South Figueroa Strcct, Suite 3200
Los Angeles, California 9D017
9 Telephone: (213)629.2020
Facsimile: (213)612-2499
10
Attorneys for Defendant
II HEALTH NET OF CALIFORNLA, INC.
12 COUNSEL FOR PLAINTIFFS ON NEXT PAGE
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SACRAMENTO
15
16 ANDREA SPEARS, on individual, on behalf Case No. 34-2017-00210560
of herself and on behalf of all persons
17 similarly situated, ASSIGNED FOR ALL PURPOSES TO
JUDGE ALAN G. PERKINS, DEPT 35
Plaimiff,
18
v. STIPULATION AND IPROPOBEt^t*^^
19 ORDER REGARDING DOCUMENT
HEALTH NET OF CALIFORNIA, INC., a PRODUCTION
Califomia Corporation; and Docs 1 through
20 SO, inclusive. Complaint Filed: April 5,2017
21 Defendants. FAC Filed: June 29, 2017
22
TOMAS R. ARANA, on behalf of himself, all Case No. 34-2017-00216685
23 others similarly situated,
ASSIGNED FOR ALL PURPOSES TO
24 Plainliffs, JUDGE ALAN G. PERKINS, DEPT 35
25 V. Complaint Filed: August 1,2017
HEALTH NET OF CALIFORNIA, INC., a
26 Califomia corporation; and DOES I -50,
27 inclusive,
Defendants.
28
4l43-34r>l-4R04.l
STIPULATION AND IPROPOSED) ORDCR REGARDING OOCUMCOT PRODUCTION
1 Norman B. Blumenlhal (STATE BAR NO. 68687)
nonn@bamlawca.com
. 2 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
3 22SS Calle Clara
U Jolla, CA 92037
4 Phonc: (858)551-1223
Fax: (858)551-1232
5
Attorneys for PlaintifT ANDREA SPEARS
6
7 Shaun Setareh (STATE BAR NO. 204514)
5haun@sctarehlaw.com
8 H. Scolt Leviant (STATE BAR NO. 200834)
scott@stcarchlaw.com
9 SETAREH LAW GROUP
9454 Wilshire Blvd., Suite 907
10
Beverly Hills, CA 90212
II Phone: (310)888-7771
Fax: (310)888-0109
12
Attorneys for Plaintiff TOMAS R. ARANA
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4l43-H6l-t804.l
SnPULATION AND (PROPOSED] ORDER REGARDING DOCUMENT PRODUCTION
I WHEREAS, in this wage and hour putative class action, Plaintiff Spears ("Spears") seeks
2 (he time and wage records of the putative class members from Defendant Health Net of Califomia,
3 Inc. ("HNCl").
4 WHEREAS, on April 17,2018, this Court ordered Plaintiff and HNCI to conduct additional
5 meet and confer to discuss alleviating the burden on HNCI, including by sampling, with respect to
6 responding to Spears's Request for Production of Documents Nos. 20-22, which sought the
7 following documents:
8 20. Please produce, in electronic, Microsoft Excel spreadsheet fonnat,
all payroll records for the CLASS MEMBERS during the RELEVANT TIME
9 PERIOD.
10 21. Please produce, in electronic, Microsoft Excel spreadsheet format,
all time records reflecting hours worked for the CLASS MEMBERS during the
II RELEVANT TIME PERIOD.
12 22. All copies of the wage statements that were provided to the CLASS
MEMBERS during the time period of April 5,2014 until the present.
13
14 WHEREAS, similar document requests were also the subject of meet and confer discussions
IS between Plaintiff Arana ("Arana") and HNCI related to Arana's Request for Production of
16 Documents Nos. 7-9, which sought the following documents:
17 7. All DOCUMENTS that describe, define, or explain the payroll
codes lhat appear on the wage siaternent and/or paycheck summaries for
18 POTENTIAL CLASS MEMBERS.
19 8. For each POTENTIAL CLASS MEMBER, please produce all
DOCUMENTS, that describe the hours worked for YOU during die RELEVANT
20 TIME PERIOD (including, but not limited to, time cards, lime clock or punch clock
records, records of hours worked, overtime and double-time records, meal and rest
21 break records, vacation accrual, leave accrual, floating holiday accrual, paid time
22 off accrual, and/or records of additions or deductionsfromwages).
23 9. For each POTENTIAL CLASS MEMBER, please produce all wage
statements or paycheck stubs during the RELEVANT TIME PERIOD.
24 WHEREAS, on April 17, 2018, this Court also ordered Spears and HCNI to conduct
25
additional meet and confer to discuss alleviating the burden on HNCI, including sampling, wilh
26
respect to responding to Spears's Special Interrogatories Nos. 6, 7, and 19. which sought the
27
following infomiation:
6. Please state, for each CLASS MEMBER, the pay periods when the
4I43.J46I-4804 I
STIPULATION AND |PR0P05ED| ORDER RECARDtNC DOCUMENT PRODUCTION
I CLASS MEMBERS were paid overtime and cash payments in lieu of health
benefits during the samc pay period during the RELEVANT TIME PERIOD (if
2 you refer to documents in response lo this special interrogatory, please identify the
specific bates numbers for the responsive documents).
3
7. Please state the number of CLASS MEMBERS who were paid
4 overtime compensation during the same pay period they received cash payments in
lieu of health benefits during the RELEVANT TIME PERIOD (if you refer to
5 documents in response to this special interrogatoiy, please identify the specific
bates numbers for the responsive documents).
6
19. Please state the total number of meal period premiums you paid to
7 the CLASS MEMBERS during the RELEVANT TIME PERIOD (if you refer to
documents in response to this special interrogatory, please identify the specific
8 bates numbers for the responsive documents).
9 WHEREAS, similar Special Interrogatories were also the subject of meet and confer
10 discussions between Arana and HNCI related to Arana's Special Interrogatories Nos. 15-17 and
11 19-21, which sought the following infonnation:
12 15. For each POTENTIAL CLASS MEMBER, please state how many
meal break premiums have been paid DURING THE RELEVANT TIME PERIOD.
13
16. Please state the beginning and end dates when meal period
14 premiums were paid lo POTENTIAL CLASS MEMBERS.
15 17. Please Slate the total dollar amount in meal period premiums lhat
were paid to each POTENTIAL CLASS MEMBER DURING THE RELEVANT
16 TIME PERIOD.
17 19. For each POTENTLAL CLASS MEMBER, please state how many
rest break premiums have been paid DURING THE RELEVANT TIME PERIOD.
18
20. Please state the beginning and end dates whenrestperiod premiums
19 were paid to POTENTIAL CLASS MEMBERS.
20 21. Please slate the dollar amount in rest period premiums that were paid
to each POTENTIAL CLASS MEMBER DURING THE RELEVANT TIME
21 PERIOD.
22 WHEREAS, on April 30, 2018, Arena and HNCI agreed thai a sampling of data for 500
23 random putative class members would be sufficient for HNCI torespondto Arana's abovc
24 mentioned discovery at the pre-certification stage, subject to any sampling agreement reached with
25 Spears or as otherwise ordered by the Court.
26 WHEREAS, on May 1, 2018, Spears declined to accept the samc sample size without
27 addilionai discussion as to HNCl's burden and the meet and confer negotiations thereafter stalled.
28 WHEREAS, on May 7, 2018, Spears and Defendant HNCI submitted Status Reports
4I43.340MBIM.I -4 -
STIPULATION AND (PR0P0SI3}) ORDER RECAROINC DOCUMENT PRODUCTION
1 regarding their meet and confer eflbrts to the Court.
2 WHEREAS, on May 10, 2018, the Court continued the pending hearing on Spears's
3 Motions to Compel to June 1,2018 and directed the parties to resume meel and confer discussions
4 to assess Spears's request to allow her third party expert to extract the anonyniized data.
5 WHEREAS, the Parties were unavailable on June 1, 2018 and requested the hearing be
6 continued until June 19, 2018.
7 WHEREAS, on May 16,2018, counsel for Spears and HNCI had a telephonic meeting with
8 Spears's expert from SETEC Security Technologies, Inc.,regardinghow he proposed to extract (he
9 data wherein he
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE B Norman B. Blumenthal (SBN 068687) 2 Aparajit Bhowmik (State Bar #248066) Jeffrey S. Herman (State Bar #280058) 3 2255 Calle Clara La Jolla, CA 92037 4 Tel: 858.551.1223 Fax: 858.551.1232 5 norm@bamlawca.com 6 Attomeys for Plaintiff ANDREA SPEARS 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on behalf CaseNo. 34-2017-00210560-CU-OE-GDS 12 of herself and on behalf of all persons similarly situated, CLASS ACTION 13 14 Plaintiff, PLAINTIFF SPEARS'S NOTICE OF 15 MOTION AND MOTION TO CONTINUE vs. HEARING DATE AND BRIEFING 16 SCHEDULE RE: PLAINTIFFS' MOTION HEALTH NET OF CALIFORNIA, INC., a FOR CLASS CERTIFICATION; 17 Califomia Corporation; and Does 1 through 50, Inclusive, MEMORANDUM OF POINTS AND 18 AUTHORITIES IN SUPPORT; 19 Defendants. DECLARATION OF VICTORIA B. 20 TOMAS R. ARANA, on behalf of himself, all RIVAPALACIO IN SUPPORT THEREOF others similarly situated. 21 Hearing Date: August 16,2018 22 Plaintiff, Hearing Time: 1:30 p.m. Judge: Hon. Alan G. Perkins 23 vs. Dept.: 35 24 HEALTH NET OF CALIFORNIA, INC., a Action Filed: April 5,2017 Califomia corporation; and DOES 1 through 25 50, inclusive. 26 Defendants. 27 28 0 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on August 16, 2018 at 1:30 p.m.. Plaintiff Andrea Spears 3 will and hereby does move for an order continuing Plaintiffs September 28, 2018 deadline to file 4 a motion for class certification and the associated Febmary 1, 2019 hearing date. This motion will 5 be heard before the Honorable Alan G. Perkins, Judge of the Superior Court of the County of 6 Sacramento. 7 This motion is brought on the grounds that good cause exists to enter the order as the hearing 8 on Defendant's Motion for Summary Adjudication ("MSA") was continued to September 27,2018, 9 one day prior to Plaintiffs' current deadline to file their motion for class certification, September 10 28, 2018. Because the outcome of Defendant's MSA will affect how Plaintiff will-present the 11 common predominance theories of liability in Plaintiffs' upcoming motion for class certification, 12 the interests of efficiency require that the deadline for the motion for class certification be 13 continued. PlaintifF is, therefore, requesting a briefing schedule set per Rule of Court 3.764 and 14 continued such that the hearing is on March 8, 2019, or a date thereafter convenient for the Court. 15 This request, if granted, would move the filing date of the motion from September 28, 2018 to no 16 earlier than February 8, 2019, a sufficient time to draft the motion based on the outcome of 17 Defendanf s MSA. 18 Counsel has made a reasonable and good faith effort to informally resolve the issues 19 presented by this motion. The motion will be based upon this notice, the memorandum of points 20 and authorities, the declaration of Victoria B. Rivapalacio and exhibits thereto, along with the 21 papers in the Court record and the oral argument at the hearing. 22 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of 23 this niatter by 2:00 p.m., the court day before the hearing. The complete text of tbe tentative 24 rulings for the department may be downloaded off the court's website. If the party does not 25 have online access, they may call the dedicated phone number for the department as 26 referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on 27 the court day before the hearing and receive the tentative ruling. Ifyou do not call the court 28 and opposing party on tbe court day before the bearing, no bearing will be held. 1 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 DATED: July 16, 2018 BLUMENTHAL, NORDREHAUG BHOWMIK 2 DE BLOUW LLP 3 4 .. Victoria B. Rivapalacio 5 Attomeys for Plaintiff 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF SPEARS'S NOTICE OF MOTION ANDMOTION CONTINUE CLASS CERTIFICATION 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiff hereby applies for an Order continuing the September 28, 2018 class certification 4 motion filing deadline to no earlier than February 8, 2019, which would result in approximately a 5 four (4) month continuance of the filing deadline. This requested continuance would result in only 6 a single month continuance to the Febmary 1, 2019 hearing date as the briefing schedule can be set 7 pursuant to Rule of Court 3.764. 8 The continuance is required because Defendant Health Net of Califomia, Inc. ("Defendant") 9 has set a Motion for Summary Adjudication ("MSA") to be heard the day before Plaintiffs deadline 10 to file the motion for class certification. Given that the result of the MSA could affect the claims 11 Plaintiffs may seek to certify and the way Plaintiffs may present the theory of liability, a 12 continuance is needed to the motion can rely on the MSA mling. 13 Defendant's delays in producing documents also justifies a continuance. At the time the 14 schedule was set. Plaintiff was anticipating compliance with Plaintiffs discovery. Plaintiff was 15 forced to file a motion to compel discovery, which was heard on April 17,2018 and finally resolved 16 by stipulation and order on June 18, 2018. That order required Defendant to produce Class 17 Members' payroll by July 6,2018 and, as of the filing of this motion, Plaintiff has not received the 18 documents subject to the order. 19 In allowing the time for the production of this discovery, the Court continued the hearing 20 on Defendant's MSA from May 30,2018 to September 27,2018, one day before Plaintiff s current 21 motion for class certification deadline. (R. Decl., Ex. 1.) Therefore, since the MSA was continued 22 by four (4) months. Plaintiffs request here for a similar continuance is entirely reasonable. 23 Plaintiff has been diligent in prosecuting this matter against Defendant, serving and 24 responding to discovery, taking the deposition of Defendant's Person Most Knowledgeable 25 ("PMK"), engaging in significant motion practice, including, recently, opposing Defendant's MSA. 26 (Declaration of Victoria B. Rivapalacio ("R. Decl.") 1| 4 & 6.) 27 In this class action. Plaintiff asserts causes of action based at least in part on Defendant's 28 failure to properly calculate Plaintiffs and Class Members' regular rate, which results in a systemic . 1 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 underpayment of wages to these employees. Defendant's MSA seeks to dispose ofthis issue as to 2 Defendant's miscalculation of Plaintiff and Class Members' regular rate and corresponding failure 3 to compensate Plaintiff and Class Members for all their overtime hours worked. Plaintiff opposes 4 Defendant's MSA and will continue to seek redress on behalf of a class of employees who were 5 subject to this practice and who worked overtime. Plaintiffs will seek to certify a class based on 6 these allegations. To the extent Defendant's MSA is granted, it will have clear implications for 7 Plaintiffs motion to certify a class based on the claims at issue. Because the hearing on September 8 27, 2018 regarding Defendant's failure to compensate its employees for all overtime hours worked 9 because it failed to include all non-discretionary bonus wages in its calculation of the regular rate 10 and the subsequent order will impact Plaintiffs' motion for class certification, currently due for 11 filing the following day, on September 28, 2018, Plaintiff seeks here a continuance to the deadline 12 for filing the motion for class certification, such that Defendant's MSA will be resolved prior to the 13 certification motion deadline. 14 Because Defendant refused a reasonable request to stipulate to continue this deadline, 15 Plaintiff was forced to file this motion in order to prevent the waste of judicial and party resources 16 that would result from having the motion for class certification filed the day after the hearing on 17 Defendant's MSA. For all these reasons, as detailed more fully below. Plaintiff respectfiilly 18 requests the Court issue an order continuing the February 1,2019 hearing date on Plaintiff s motion 19 for class certification to March 8, 2019, or a date thereafter convenient for the Court, and setting 20 the briefing schedule pursuant to Rule of Court 3.764, which would result in a motion filing 21 deadline of no earlier than February 8, 2019. 22 23 II. FACTUAL HISTORY 24 PlaintifF Spears's action was consolidated with Plaintiff Arana's action on October 11, 25 2017. (R. Decl. ^ 3.) The plaintiffs have served multiple sets of discovery and have taken the 26 deposition of Defendant's Person Most Knowledgeable ("PMK") for a portion of the classifications 27 in Plaintiff Spears's Notice of Deposition of Defendant. (R. Decl. K 4.) Plaintiff Spears, 28 • 2 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 speciflcally, has met and conferred extensively with Defendant regarding discovery and the Parties 2 have engaged in substantial motion practice. (Id.) 3 The briefing schedule regarding Plaintiffs Motion for Class Certification was set at a Case 4 Management Conference held on March 29, 2018. (R. Decl. ^ 5.) The briefing schedule was set as 5 follows: 6 - The motion for class certification filing deadline: September 28, 2018; 7 - Any opposition to Plaintiffs class certification motion: November 27,2018; 8 - Any reply in response: January 4, 2019; and 9 - Hearing as to Plaintiffs motion for class certification: February .1, 2019 at 10:30 a.m. (Id.) 10 Defendant filed a Motion for Summary Adjudication ("MSA") on Febmary 5, 2018, setting 11 the hearing for April 26, 2018. (R. Decl. ^ 6.) The Opposition and Reply were filed by code. (Id.) 12 On April 26, 2018, the Court continued the hearing to May 30, 2018. (Id.) On May 30, 2018, the 13 Court ordered a limited, discovery-related continuance to the MSA hearing to allow resolution of 14 a discovery dispute as to discovery relevant to the MSA to occur prior to a mling on the substance 15 of Defendant's MSA. (R. Decl., Ex. 1.) Notably, this discovery is also extremely relevant to 16 Plaintiffs motion for class certification. The discovery hearing was set for June 19, 2018 so, to 17 allow for compliance if the discovery motion was granted, the Court set the MSA hearing for 18 September 27, 2018.' (Id.) 19 On May 31, 2018, Plaintiff sent correspondence to Defendant requesting to stipulate to 20 continue the briefmg schedule regarding Plaintiffs motion for class certification based on the new 21 timing of Defendant's MSA. (R. Decl., Ex. 3.) Defendant refused any extension. (Id.) 22 // 23 // 24 // 25 // 26 // 27 ' The Parties stipulated to the production of the at-issue discovery such that the niatter set for June 19, 2018 was 28 dropped. (R. Decl. ^ 7.) Pursuant to the stipulation, Defendant was to have produced the discovery by July 6,2018. (R. Decl., Ex. 2.) As of this filing, no documents have been produced. (R. Decl. ^ 7.) 3 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION A court's determination as to whether class certification is appropriate does not tum on whether the claims asserted are legally or factually meritorious, but it does require an examination of issues involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 (2012). "In particular, whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. To assess predominance, a court 'must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (intemal citations omitted). A motion for summary adjudication seeks to dispose of an entire cause of action, an affirmative defense, a claim for damages, or an issue of duty because such a motion "contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs." Cal. Code Civ. Proc. §437c(f)(l). Thus, a decision on a motion for summary adjudication has implications for a motion for class certification. See Archer v. United Rentals, Inc., 195 Cal. App. 4th 807, 812 (201 l)(reversing an order denying class certification because the court also reversed an aspect of the trial court's order granting the defendant's motion for summary adjudication). A decision either way will impact the definitions of the proposed classes and the claims those classes assert. Id. A decision as to the merits of one or more causes of action will alter the analysis required to determine whether common questions predominate because such an analysis requires an investigation as to the resolution of the merits ofthe case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024. In this class action. Plaintiff asserts seven causes of action: (1) Failure to Provide Meal Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) Failure to Provide Rest Periods in violation of Cal. Lab. Code §§ 204,223,226.7, and 1198; (3) Failure to Pay Hourly Wages in violation of Cal. Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198; (4) Failure to Provide Accurate Written Wage Statements in violation of Cal. Lab. Code § 226(a); (5) 4 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 Failure to Timely Pay All Final Wages in violation of Cal. Lab. Code §§ 201, 202, and 203; (6) 2 Unfair Competition in violation of Cal. Bus. & Prof Code §§ 17200, et seq. ; and (7) Violation of 3 the Private Attomeys General Act, Cal. Lab. Code §§ 2698, et seq. Several of these causes ofaction 4 are based, in part, on Defendant's failure to properly calculate Plaintiffs and Class Members' 5 regular rate, resulting in a systemic underpayment of wages to these employees. Defendant's MSA 6 seeks to dispose of the issue of Defendant's miscalculation of Plaintiff and Class Members' 7 overtime wages. 8 In mling on whether Defendant failed to include cash in lieu payments in the regular rate, 9 the Court will base its mling on the facts relevant to this dispute. In so doing, the Court will instruct 10 the parties as to those facts that are tmly the ones that create a triable issue of fact. Therefore, 11 learning what those relevant triable issues are is critical for Plaintiff to argue in the motion for class 12 certification how those triable issues of fact can be adjudicated based on common evidence. 13 Because a decision as to Defendant's MSA has clear implications for Plaintiffs motion to 14 certify a class based on Defendant's failure to compensate its employees for all overtime hours 15 worked because it failed to include all non-discretionary bonus wages in its calculation ofthe 16 regular rate. Plaintiff respectfully requests that the deadline for filing the motion for class 17 certification be continued such that Defendant's MSA will be resolved prior to the deadline. 18 B. Defendant's Failure to Produce Discovery Merits a Continuation of Plaintiffs' Motion for Class Certification Briefing Schedule 19 . 20 The FLSA, like Califomia law, requires employers to pay an overtime compensation rate 21 of one and one-half times the "regular rate of pay." (29 U.S.C. § 207(a)). The regular rate 22 includes "all remuneration for employment paid to, or on behalf of, the employee" (29 U.S.C. § 23 207(e)), subject to certain exclusions enumerated by statute. 24 Defendant's exclusion was recently examined in Flores v. City of San Gabriel, 824 F.3d 25 890 (9th Cir. 2016), where The City of San Gabriel (the City) was an employer that maintained a 26 flexible benefits plan under which a designated monetary amount was credited to each employee 27 for the purchase ofmedical, vision, and dental benefits. Flores, supra, 824 F.3d 890 at 896. An 28 employee could opt out of using the portion ofthe funds that were to go toward medical benefits 5 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 if that employee had altemate medical coverage and that unused portion of funds was distributed 2 directly to the employee as a cash payment. Id. The trial court held that the City's cash-in-lieu 3 payments were improperly excluded by the City from its calculation of the regular rate of pay of 4 its employees for purposes of overtime. Id. at 897. 5 Plaintiff, here, will demonstrate that the Flores conclusion applies and can be resolved on 6 a classwide basis. As evidence that common issues of fact and law predominate. Plaintiff will 7 analyze the payroll records of Class Members and provide the Court with a trial plan, capable of 8 resolution without turning to an individualized inquiry. 9 When the class certification motion briefmg schedule was set on March 28, 2018, Plaintiff 10 anticipated that the necessary discovery would be provided in the intervening six (6) months 11 between then and the filing deadline. Defendant, however, has delayed the production of 12 significant portions of discovery and forced extensive motion practice. Indeed, even tbe 13 documents Defendant agreed to provide by July 6,2018 pursuant to tbe stipulation that 14 took tbe June 19,2018 discovery hearing off-calendar have yet to be produced. (R. Decl. ^ 15 7.) Such tactics have limited Plaintiffs progress and are a fiirther reason why Plaintiffs deadline 16 to file should be continued. 17 18 IV. CONCLUSION 19 For the foregoing reasons. Plaintiff respectfully requests the Court issue an order continuing 20 the Febmary 1,2019 hearing date on Plaintiffs motion for class certification to March 8, 2019, or 21 a date thereafter convenient for the Court, and setting the briefing schedule pursuant to Rule of 22 Court 3.764, which would result in a motion filing deadline of no earlier than Febmary 8, 2019. 23 DATED: July 16, 2018 BLUMENTHAL NORDREHAUG BHOWMIK 24 DE BLOUW LLP 25 26 By:_ •ia B. Rivapalaci6 Victoria Rivapalacif 27 Counsel for Plaintiff Spears 28 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I, Victoria B. Rivapalacio, declare as follows: 3 1. I am an attomey with the law firm of Blumenthal Nordrehaug Bhowmik De Blouw, 4 LLP ("BNBD"), counsel of record for Plaintiff Spears in the above-entitled action. As such, I am 5 fully familiar with the facts, pleadings and history of this matter. The following facts are within my 6 own personal knowledge, and if called as a witness, I could testify competently to the matters stated 7 herein. 8 2. This declaration is being submitted in support of Plaintiff s motion to continue the 9 briefing schedule re Plaintiffs' motion for class certification. 10 3. Plaintiff Spears's action was consolidated with PlaintifF Arana's action on October 11 11,2017. 12 4. Plaintiffs have served and responded to multiple sets of discovery and have taken 13 the deposition of Defendant's Person Most Knowledgeable ("PMK") for a portion of the 14 classifications in Plaintiff Spears' s Notice of Deposition of Defendant. Plaintiff Spears has met and 15 conferred extensively with Defendant regarding discovery and the Parties have engaged in 16 substantial motion practice. 17 5. The briefing schedule regarding Plaintiffs Motion for Class Certification was set at 18 a Case Management Conference held on March 29,2018. The briefing schedule was set as follows: 19 - The motion for class certification filing deadline: September 28, 2018; 20 - Any opposition to Plaintiffs class certification motion: November 27,2018; 21 - Any reply in response: January 4, 2019; and 22 - Hearing as to Plaintiffs motion for class certification: Febmary. 1,2019 at 10:30 a.m. 23 6. Defendant filed a Motion for Summary Adjudication ("MSA") on Febmary 5,2018, 24 setting the hearing for April 26, 2018. The Opposition and Reply were filed by code. On April 26, 25 2018, the Court continued the hearing to May 30, 2018. On May 30, 2018, the Court ordered a 26 limited, discovery-related continuance to the MSA hearing to allow resolution of a discovery 27 dispute as to discovery relevant to the MSA to occur prior to a mling on the substance of 28 1 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION 1 Defendant's MSA. A tme and correct copy of the Order of May 30, 2018 regarding Defendant's 2 Motion for Summary Adjudication is attached as Exhibit 1. 3 7. As to the then-pending discovery dispute, the Parties stipulated to the production of 4 the discovery such that the hearing set for June 19, 2018 was dropped. A tme and correct copy of 5 the stipulation regarding the discovery dispute is attached as Exhibit 2. Despite the agreement in 6 the stipulation that the electronic time and payroll records ofthe Class Members would be produced 7 by July 6, 2018, Defendant has yet to produce the documents. 8 8. On May 31, 2018, the day after the MSA hearing was continued to September 27, 9 2018, PlaintifF requested that the Parties stipulate to continue the class certification briefing 10 schedule such that Plaintiffs motion would no longer be due for filing the day after the hearing on 11 Defendant's MSA. Defendant refused, offering no justification. A tme and correct copy of the email 12 exchange is attached as Exhibit 3. 13 14 I declare under penalty of perjury under the laws of the State of Califomia and the United 15 States that the foregoing is tme and correct. Executed this 16th day of July, 2018 at La Jolla, 16 Califomia. 17 \ / > ^ Victoria B. Rivapalacio 19 20 21 22 23 24 25 26 27 28 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASSCERTIFICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Exhibit 1 27 28 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 05/30/2018 TIME: 09:00:00 AM DEPT: 54 JUDICIAL OFFICER PRESIDING: Christopher Krueger CLERK: D.Taylor REPORTER/ERM: BAILIFF/COURT ATTENDANT: R. Mays, M. Oreschak CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017 CASE TITLE: Spears vs. Health Net of California Inc CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion for Summary Judgment and/or Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES Nature of Proceeding: Motion for Summary Adjudication TENTATIVE RULING Defendant Health Net of California, Inc's ("HNCA") Motion for Summary Adjudication as against the Third and Seventh Causes of Action In the Consolidated Complaint of Plaintiffs Andrea Spears and Tomas R. Arana (collectively, "Plaintiffs") Is CONTINUED TO September 27, 2018 at 9 a.m. in this Department. Plaintiff Andrea Spears ("Plaintiff") has opposed the Motion and requested that Defendant's motion for summary adjudication be denied in Its entirety because Defendant has not provided previously-requested discovery that Plaintiff claims Is required for the Opposition. While the Court is not persuaded that an outright denial of the instant motion is warranted here, the Court in its discretion will continue the hearing on this motion so that Plaintiffs currently-pending motion to compel responses to Request for Production 20-21 ("RFPs 20-21) can first be ruled upon. In the event the Court grants that motion, a limited, discovery-related continuance of the Instant Motion for Summary Adjudication will allow the Court to consider, and Defendant to respond to, the outstanding discovery that Plaintiff claims she has been unable to obtain to date. (The Court herein makes absolutely no determination on the merits of PlaintifTs still-pending motion to compel responses to RFPs 20-21; the Court finds only that the Instant Motion for Summary Adjudication must be continued so that motion can be ruled upon and, jf granted, complied with.) The continued hearing on Plaintiff's motion to compel RFP Nos. 20-21 (payroll records) is cun-ently set for June 19, 2018. Code of Civil Procedure section 437c, subdivision (h), provides that "[i]f it appears from affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just." A request for a discovery-related continuance may simply be made in DATE: 05/30/2018 MINUTE ORDER Pagel DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS the opposition to the motion for summary judgment, and must merely be supported by declarations showing facts that justify the requested continuance. (Combs v. Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270; Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1353.) "A declaration In support of a request for continuance under section 437c, subdivision (h) must show: '(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain those facts.'" (Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 (citation omitted).) The decision to grant a continuance under Code of Civil Procedure section 437c, subdivision (h), falls within the discretion of the trial court. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72.) Here, the Court construes the discovery-based arguments in Plaintiff's Opposition as a request for a discovery-related continuance. (Opp'n at 12-13.) Defendant is correct that this request is not accompanied by any supporting affidavit or declaration, such that a continuance Is not mandatory. However, even absent a supporting declaration, a trial court must consider a request for a discovery-related continuance, and it is an abuse of discretion to refuse the continuance when papers show the proposed discovery to be "essential" to opposing the motion. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716; Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643-44.) Usually, the court's discretion should be exercised in favor of granting a continuance: "The interests at stake are too high to sanction the denial of a continuance without good reason." (Frazee v. Seely (2002) 95 Cal.App.4th 627, 634; see also Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765-66.) "Where a plaintiff cannot make the showing required under section 437c, subdivision (h), a plaintiff may seek a continuance under the ordinary discretionary standard applied to requests for a continuance." (Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 765.) "This requires a showing of good cause." (Id.) "[I]n deciding whether to continue a summary judgment to permit additional discovery courts consider various factors. Including (1) how long the case has been pending; (2) how long the requesting party had to oppose the motion; (3) whether the continuance motion could have been made earlier; (4) the proximity of the trial date or the 30-day discovery cutoff before trial; (5) any prior continuances for the same reason; and (6) the question whether the evidence sought is truly essential to the motion." (Id. (citing Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644).) Plaintiff's Opposition identifies three of Defendant's Undisputed Facts ("UF"), UF Nos. 14, 15, and 19: Fact No. 14: The exact amount of 'Flex Dollars' to which a Participant was entitled to varied depending on the medical and dental plans that he or she chose, the number of dependents covered and the Participant's geographic location, but generally, the amount was less than the total cost of the beneflt(s) that a participant elected. Fact No. 15: In a vast majority of cases, the Participant was required to contribute some amount toward the cost of the benefit(s) he or she selected, and the portion of the benefit coverage was deducted from his or her paycheck. Fact No. 19: In each of the Plan years 2013, 2014, 2015 and 2016, the total cash benefits provided to Participants who waived dental and/or medical coverage represented a very small percentage of HNCA's contributions provided under the Plan for the elected dental and/or medical coverage: 1/4% in 2013, 1.3% in 2014; 0.9% In 2015; and 0.9% In 2016. Plaintiffs Opposition also articulates how her previously-propounded RFP Nos. 20-21 (which seek payroll records for the putative class members) would yield evidence necessary to refute these specific UFs. Again, the continued hearing on Plaintiffs motion to compel RFP Nos. 20-21 (payroll records) Is currently set for June 19, 2018. DATE: 05/30/2018 MINUTE ORDER Page 2 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Plaintiff argues that her receipt of such discovery is "essential" to opposing these specific UFs. Plaintiffs Opposition argues that "[a] review of these payroll records is needed by Plaintiff In order to be able to ascertain whether... the overall amount of Flex Dollars was or was not less than the cost of the benefits that the participants elected with regard to Fact No. 14. This discovery would be pertinent to the Issue of whether Defendant properiy excluded from the overtime payments the benefits payments made directly to the trustee coded on Plaintiffs wage statement as 'DenFlxElct.'" (Opp'n at 12.) "The payroll data would also allow Plaintiff to ascertain whether in the "vast majority of cases" participants had portions of benefits coverage deducted from his or her paycheck with regard to Fact No. 15. Defendant should not be permitted to object on the one hand that turning over such discovery is burdensome, while on the other hand Defendant Is secretly reviewing and processing the same classwide discovery for Defendant's own benefit." (Opp'n at 13.) "The same goes for Defendant's representations In Fact No. 19 regarding the total amount of cash benefits provided to all Plan Participants on a classwide basis. Plaintiff would have been able to review and corroborate whether Defendant's factual claims were true, had Defendant complied with Plaintiffs discovery request for the payroll data of Class Members. . . . If Plaintiffs' review of the data shows that Defendant's calculations were Incorrect and the cash payments were not small In comparison with Defendant's contributions, then Plaintiff would be able to argue that Defendant's plan was not bona fide such that the payments Defendant made for benefits directly to the trustee or third party should have been included in the overtime rate of pay." (Opp'n at 13.) Defendant argues that Plaintiff's RFP Nos. 20-21 "do not contain the infonnation" necessary to render UF Nos. 14, 15, and 19 as "disputed." (Reply at 5.) This is because, according to Defendant, the requested payroll records "would not provide a complete picture of what one needs to know to determine that the fifth requirement [of the Benefit-Plan Contributions Exception] is satisfied." (Reply at 5.) The Court is not persuaded that the fact that the payroll records would not suffice to "determine that the fifth requirement" Is satisfied shows that the discovery is not essential here. It Is not Plaintiff's burden to prove that any such requirement is "satisfied" on the instant Motion; and it Is not Plaintiff's burden to provide a "complete picture" of contributions and benefits practices. Instead, Plaintiff must merely show that Defendant's UFs - as phrased by Defendant - are unsupported and/or give rise to a material factual dispute. Defendant's UFs 14, for instance, makes the factual assertion that "generally, the amount of [Flex Dollars to which a Plan Participant was entitled] was less than the total cost of the benefit(s) that a participant elected." (UF No. 14.) Plaintiff argues that her requested discovery could potentially disprove this factual assertion. Although the Court makes no determination at this time regarding the materiality of this particular "fact," Plaintiff has persuaded the Court that RFPs 20-21 (payroll records) could potentially yield evidence essential to rendering UF No. 14 disputed. The Court finds that in this particular case, the balance tips in favor of allowing a discovery-related continuance of the instant Motion for Summary Adjudication. This is not a case where Plaintiffs have had multiple years to complete discovery, for Instance, and this case is not on the eve of trial. In fact, no trial date has yet been set. This case was Initiated just over a year ago, in April of 2017, with a First Amended Complaint filed on June 29, 2017. To the extent that Defendant argues that Plaintiffs were dilatory in conducting discovery, the case cited by Defendant is not persuasive. (See Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 257 [plaintiff's counsel "acknowledged that he Intentionally delayed discovery for tactical reasons"].) Here, there has been no admission of intentional, tactical delay by Plaintiff with respect to discovery. Indeed, Defendant filed the instant Motion for Summary Adjudication on February 2, 2018, and Plaintiff filed motions to compel the subject previously-propounded discovery on March 20, 2018. The Court heard the various discovery motions on April 16, 2018, ultimately granted some of the motions in part, and continued others - like the one regarding RFPs 20-21 - for further hearing set in June 2018. At least some of Plaintiffs discovery motions have been found to have merit, such that Defendant has been ordered to provide the discovery. DATE: 05/30/2018 MINUTE ORDER Page 3 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS The Court finds adequate justification here to grant a continuance to allow Plaintiff time to complete the discovery she contends is necessary to oppose the instant Motion. In doing so, the Court does not give any Indication whether such evidence will ultimately be relevant or admissible in connection with Plaintiffs Opposition to the instant Motion for Summary Adjudication. The Court finds only that Plaintiff has made a sufficient showing under section 437c, subdivision (h), to justify the exercise of discretion and grant of the requested continuance. The instant Motion for Summary Adjudication will now be heard on September 27, 2018 at 9 a.m. in this Department, unless the parties stipulate to a later date. Assuming no such stipulation. Plaintiff may file and serve amended Opposition papers and Response to the Separate Statement no later than August 24, 2018, while Defendants may file and serve their Reply to the amended Opposition no later than September 14, 2018. Should the parties stipulate to a later hearing date, they must also stipulate to a briefing schedule whereby the Reply papers are filed at least 30 days before the hearing date. In the event Plaintiffs pending motion to compel regarding RFPs 20-21 (payroll records) Is denied, no further briefing regarding the instant Motion for Summary Adjudication will be permitted, and the Court will hear the Motion on fhe continued hearing date based on the briefing currently on file. The minute order is effective Immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. COURT RULING The Court affirmed the tentative ruling. The Motion for Summary Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP is scheduled for 09/27/2018 at 09:00 AM in Department 54. DATE: 05/30/2018 MINUTE ORDER Page 4 DEPT: 54 Calendar No. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Exhibit 2 27 28 PLAINTIFF SPEARS'S NOTICE OF MOTION AND MOTION CONTINUE CLASS CERTIFICATION \n w:- ?j-.i;r. I TIMOTHY J. LONG (STATE BAR NO. 137591) tilonGf?i)orrick.com J(l)5 JUM (8 PM !: 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhortonfir7>orriclc.coni 3 ORRICK. HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall 4 Suite 3000 Sacramcnto, CA 95814-4497 5 Telephone: +1 916 447 9200 Facsimile: +1 916 329 4900 6 STEPHANIE GAIL LEE (STATE BAR NO. 285379) 7 stcphanic.lcc@orrick.coni ORRJCK. HERRINGTON & SUTCLIFFE LLP 8 777 South Figueroa Strcct, Suite 3200 Los Angeles, California 9D017 9 Telephone: (213)629.2020 Facsimile: (213)612-2499 10 Attorneys for Defendant II HEALTH NET OF CALIFORNLA, INC. 12 COUNSEL FOR PLAINTIFFS ON NEXT PAGE 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 16 ANDREA SPEARS, on individual, on behalf Case No. 34-2017-00210560 of herself and on behalf of all persons 17 similarly situated, ASSIGNED FOR ALL PURPOSES TO JUDGE ALAN G. PERKINS, DEPT 35 Plaimiff, 18 v. STIPULATION AND IPROPOBEt^t*^^ 19 ORDER REGARDING DOCUMENT HEALTH NET OF CALIFORNIA, INC., a PRODUCTION Califomia Corporation; and Docs 1 through 20 SO, inclusive. Complaint Filed: April 5,2017 21 Defendants. FAC Filed: June 29, 2017 22 TOMAS R. ARANA, on behalf of himself, all Case No. 34-2017-00216685 23 others similarly situated, ASSIGNED FOR ALL PURPOSES TO 24 Plainliffs, JUDGE ALAN G. PERKINS, DEPT 35 25 V. Complaint Filed: August 1,2017 HEALTH NET OF CALIFORNIA, INC., a 26 Califomia corporation; and DOES I -50, 27 inclusive, Defendants. 28 4l43-34r>l-4R04.l STIPULATION AND IPROPOSED) ORDCR REGARDING OOCUMCOT PRODUCTION 1 Norman B. Blumenlhal (STATE BAR NO. 68687) nonn@bamlawca.com . 2 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 3 22SS Calle Clara U Jolla, CA 92037 4 Phonc: (858)551-1223 Fax: (858)551-1232 5 Attorneys for PlaintifT ANDREA SPEARS 6 7 Shaun Setareh (STATE BAR NO. 204514) 5haun@sctarehlaw.com 8 H. Scolt Leviant (STATE BAR NO. 200834) scott@stcarchlaw.com 9 SETAREH LAW GROUP 9454 Wilshire Blvd., Suite 907 10 Beverly Hills, CA 90212 II Phone: (310)888-7771 Fax: (310)888-0109 12 Attorneys for Plaintiff TOMAS R. ARANA 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4l43-H6l-t804.l SnPULATION AND (PROPOSED] ORDER REGARDING DOCUMENT PRODUCTION I WHEREAS, in this wage and hour putative class action, Plaintiff Spears ("Spears") seeks 2 (he time and wage records of the putative class members from Defendant Health Net of Califomia, 3 Inc. ("HNCl"). 4 WHEREAS, on April 17,2018, this Court ordered Plaintiff and HNCI to conduct additional 5 meet and confer to discuss alleviating the burden on HNCI, including by sampling, with respect to 6 responding to Spears's Request for Production of Documents Nos. 20-22, which sought the 7 following documents: 8 20. Please produce, in electronic, Microsoft Excel spreadsheet fonnat, all payroll records for the CLASS MEMBERS during the RELEVANT TIME 9 PERIOD. 10 21. Please produce, in electronic, Microsoft Excel spreadsheet format, all time records reflecting hours worked for the CLASS MEMBERS during the II RELEVANT TIME PERIOD. 12 22. All copies of the wage statements that were provided to the CLASS MEMBERS during the time period of April 5,2014 until the present. 13 14 WHEREAS, similar document requests were also the subject of meet and confer discussions IS between Plaintiff Arana ("Arana") and HNCI related to Arana's Request for Production of 16 Documents Nos. 7-9, which sought the following documents: 17 7. All DOCUMENTS that describe, define, or explain the payroll codes lhat appear on the wage siaternent and/or paycheck summaries for 18 POTENTIAL CLASS MEMBERS. 19 8. For each POTENTIAL CLASS MEMBER, please produce all DOCUMENTS, that describe the hours worked for YOU during die RELEVANT 20 TIME PERIOD (including, but not limited to, time cards, lime clock or punch clock records, records of hours worked, overtime and double-time records, meal and rest 21 break records, vacation accrual, leave accrual, floating holiday accrual, paid time 22 off accrual, and/or records of additions or deductionsfromwages). 23 9. For each POTENTIAL CLASS MEMBER, please produce all wage statements or paycheck stubs during the RELEVANT TIME PERIOD. 24 WHEREAS, on April 17, 2018, this Court also ordered Spears and HCNI to conduct 25 additional meet and confer to discuss alleviating the burden on HNCI, including sampling, wilh 26 respect to responding to Spears's Special Interrogatories Nos. 6, 7, and 19. which sought the 27 following infomiation: 6. Please state, for each CLASS MEMBER, the pay periods when the 4I43.J46I-4804 I STIPULATION AND |PR0P05ED| ORDER RECARDtNC DOCUMENT PRODUCTION I CLASS MEMBERS were paid overtime and cash payments in lieu of health benefits during the samc pay period during the RELEVANT TIME PERIOD (if 2 you refer to documents in response lo this special interrogatory, please identify the specific bates numbers for the responsive documents). 3 7. Please state the number of CLASS MEMBERS who were paid 4 overtime compensation during the same pay period they received cash payments in lieu of health benefits during the RELEVANT TIME PERIOD (if you refer to 5 documents in response to this special interrogatoiy, please identify the specific bates numbers for the responsive documents). 6 19. Please state the total number of meal period premiums you paid to 7 the CLASS MEMBERS during the RELEVANT TIME PERIOD (if you refer to documents in response to this special interrogatory, please identify the specific 8 bates numbers for the responsive documents). 9 WHEREAS, similar Special Interrogatories were also the subject of meet and confer 10 discussions between Arana and HNCI related to Arana's Special Interrogatories Nos. 15-17 and 11 19-21, which sought the following infonnation: 12 15. For each POTENTIAL CLASS MEMBER, please state how many meal break premiums have been paid DURING THE RELEVANT TIME PERIOD. 13 16. Please state the beginning and end dates when meal period 14 premiums were paid lo POTENTIAL CLASS MEMBERS. 15 17. Please Slate the total dollar amount in meal period premiums lhat were paid to each POTENTIAL CLASS MEMBER DURING THE RELEVANT 16 TIME PERIOD. 17 19. For each POTENTLAL CLASS MEMBER, please state how many rest break premiums have been paid DURING THE RELEVANT TIME PERIOD. 18 20. Please state the beginning and end dates whenrestperiod premiums 19 were paid to POTENTIAL CLASS MEMBERS. 20 21. Please slate the dollar amount in rest period premiums that were paid to each POTENTIAL CLASS MEMBER DURING THE RELEVANT TIME 21 PERIOD. 22 WHEREAS, on April 30, 2018, Arena and HNCI agreed thai a sampling of data for 500 23 random putative class members would be sufficient for HNCI torespondto Arana's abovc 24 mentioned discovery at the pre-certification stage, subject to any sampling agreement reached with 25 Spears or as otherwise ordered by the Court. 26 WHEREAS, on May 1, 2018, Spears declined to accept the samc sample size without 27 addilionai discussion as to HNCl's burden and the meet and confer negotiations thereafter stalled. 28 WHEREAS, on May 7, 2018, Spears and Defendant HNCI submitted Status Reports 4I43.340MBIM.I -4 - STIPULATION AND (PR0P0SI3}) ORDER RECAROINC DOCUMENT PRODUCTION 1 regarding their meet and confer eflbrts to the Court. 2 WHEREAS, on May 10, 2018, the Court continued the pending hearing on Spears's 3 Motions to Compel to June 1,2018 and directed the parties to resume meel and confer discussions 4 to assess Spears's request to allow her third party expert to extract the anonyniized data. 5 WHEREAS, the Parties were unavailable on June 1, 2018 and requested the hearing be 6 continued until June 19, 2018. 7 WHEREAS, on May 16,2018, counsel for Spears and HNCI had a telephonic meeting with 8 Spears's expert from SETEC Security Technologies, Inc.,regardinghow he proposed to extract (he 9 data wherein he