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F I L E D : B Y F A X
TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com
3 AVALON JOHNSON FITZGERALD (STATE BAR ^
4
afitzgerald@orrick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP F!LED/ENDORSED
400 Capitol Mall, Suite 3000
5 Sacramento, CA 95814-4497 MAR 1 5 2019
Telephone: +1 916 447 9200
6 Facsimile: +1 916 329 4900 M. Rubalcaba
By:
Depury Cierk
7 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
12 of herself and on behalf of all persons similarly CU-OE-GDS
situated.
13 Plaintiff DEFENDANT H E A L T H NET OF
CALIFORNIA, INC.'S NOTICE OF NO
14 V. OPPOSITION BY PLAINTIFF ARANA
AS TO DEFENDANT'S MOTION AS TO
15 HEALTH NET OF CALIFORNIA, INC., a WHY ARANA'S CASE SHOULD NOT
Califomia Corporation; and Does 1 through 50, PROCEED AS A PAGA
16 inclusive. REPRESENTATIVE ACTION
17 Defendants. Date: April 11, 2019
Time: 10:00 a.m.
18 Dept: 35
Judge: Hon. Alan G. Perkins
19
Complaint Filed: April 5, 2017
20 FAC Filed: June 29, 2017
21 Complaint Filed: August 1, 2017
TOMAS R. ARANA, on behalf of himself, all
Consolidated Complaint Filed: Dec. 21, 2017
others similarly situated.
22
Plaintiff,
23
24
HEALTH NET OF CALIFORNIA, INC, a
25 Califomia corporation; and DOES 1 -50,
inclusive,
26
Defendant.
27
28
DEF.'S NOTICE OF NO OPPOSITION BY PLAINTIFF ARANA TO DEF.'S MOTION AS TO WHY ARANA'S CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
4158-8540-2394.3
1 TO A L L PARTIES AND E I T E H R COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE that Plaintiff Arana has not filed any written opposition to
3 Defendant Health Net of Califomia's ("HNCA") Mofion As To Why Plainfiff Arana's Case
4 Should Not Proceed As a PAGA Representative Action ("PAGA Motion"), dated December 21,
5 2018, which is set for hearing on April 11, 2019, at 10:00 a.m. before this Court.
6 On December 21, 2019, HNCA filed the PAGA Motion and supporting evidence with this
7 Court and served the motion on Arana's counsel of record. See Decl. of Tim Long ISO HNCA's
8 Notice of No Opp'n, Ex. A (Proof of Service). As set forth in the PAGA Motion, Arana's
9 LWDA letter asserted six PAGA claims against HNCA: (1) HNCA's rounding policies resulted
10 in employees' time being inaccurately recorded and, as a result, inaccurately paid; (2) HNCA
11 improperly classified certain employees as being exempt from overtime; (3) HNCA incorrectly
12 calculated employees' regular rate of pay by failing to include non-discretionary bonuses and
13 "other remuneration" in that rate;' (4) HNCA knew or should have known that employees were
14 working off the clock and were not being compensated for that time; (5) HNCA violated the
15 Labor Code's requirement to provide meal breaks; and (6) HNCA violated the Labor Code's
16 requirements to provide rest breaks. PAGA Motion at 5-8; Long Decl. ISO PAGA Motion Ex. A.
17 Arana has not opposed the PAGA Motion and on that basis alone the Court should rule that Arana
18 cannot proceed with any of his PAGA claims on a representative basis.
19 Moreover, as the PAGA Motion proves, there is no legitimate basis for allowing Arana to
20 pursue any of his alleged PAGA claims on a representative basis. The Court has dismissed one of
21 these claims, rounding, and the derivative PAGA claim, on summary adjudication. PAGA
22 Motion, at 8. The Court also dismissed Arana's claim that overtime was miscalculated based on
23 an alleged failure to include a shift differential in the regular rate, as well as the related PAGA
24 claim. Id. In addition, Arana has stipulated that he is not pursuing any overtime/regular rate
25 claims (and necessarily, the derivative PAGA claims) based on whether HNCA should have
26 included SPOT Awards, ACA Incentive Payments, Wellness Incentive Payments and cash
27
' In the course of this lawsuit, it became apparent that Arana's PAGA regular rate was based on HNCA having not
2g included SPOT Awards, ACA Incentive Payments, Wellness Incentive Payments and cash benefits employees
received for waiving medical and dental benefits in the regular rate. As mentioned in the PAGA Motion and again
here, Arana has withdrawn these claims. PAGA Motion, at 8.
-1-
DEF.'S NOTICE OF NO OPPOSITION BY PLAINTIFF ARANA TO DEF.'S MOTION AS TO WHY ARANA'S CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
4158-8540-2394.3
benefits employees received for waiving medical and dental benefits in the regular rate. Id.
2 Arana further stipulated that he is not pursuing an exemption claim, and any PAGA claims based
3 on that claim. Id. HNCA also submitted ample evidence that Arana's PAGA meal and rest break
4 and off-the-clock claims are time-barred and he is not an aggrieved employee within the meaning
5 of PAGA as to these claims {id. at 9-11), none of which Arana has disputed. HNCA also argued
6 that Arana's PAGA meal and rest break and off-the-clock claims should not go forward on a
7 representative basis because these claims are not manageable. Id. at 11-16. Again, Arana neither
8 disputed that manageability is appropriate for this Court to consider, HNCA's argument as to why
9 these PAGA claims are not manageable, nor any of the substantial evidence submitted by HNCA
10 in support of this argument. These are independent bases for mling that Arana may not proceed
on any of these claims on a representative basis.
12 For the reasons set forth in the PAGA Motion, as summarized above, the Court should
13 grant HNCA's motion.
14 Dated: March 15, 2019 ORRICK, HERRINGTON & SUTCLIFFE LLP
15
16 By:
TIMOTHY J. LONG
1^ Attomeys for Defendant
^g HEALTH NET OF CALIFORNIA, INC.
19
20
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25
26
27
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DEF.'S NOTICE OF NO OPPOSITION BY PLAINTIFF ARANA TO DEF.'S MOTION AS TO WHY ARANA'S CASE SHOULD NOT
PROCEED AS A PAGA REPRESENTATIVE ACTION
4158-8540-2394.3
Preview
F I L E D : B Y F A X TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com 3 AVALON JOHNSON FITZGERALD (STATE BAR ^ 4 afitzgerald@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP F!LED/ENDORSED 400 Capitol Mall, Suite 3000 5 Sacramento, CA 95814-4497 MAR 1 5 2019 Telephone: +1 916 447 9200 6 Facsimile: +1 916 329 4900 M. Rubalcaba By: Depury Cierk 7 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 12 of herself and on behalf of all persons similarly CU-OE-GDS situated. 13 Plaintiff DEFENDANT H E A L T H NET OF CALIFORNIA, INC.'S NOTICE OF NO 14 V. OPPOSITION BY PLAINTIFF ARANA AS TO DEFENDANT'S MOTION AS TO 15 HEALTH NET OF CALIFORNIA, INC., a WHY ARANA'S CASE SHOULD NOT Califomia Corporation; and Does 1 through 50, PROCEED AS A PAGA 16 inclusive. REPRESENTATIVE ACTION 17 Defendants. Date: April 11, 2019 Time: 10:00 a.m. 18 Dept: 35 Judge: Hon. Alan G. Perkins 19 Complaint Filed: April 5, 2017 20 FAC Filed: June 29, 2017 21 Complaint Filed: August 1, 2017 TOMAS R. ARANA, on behalf of himself, all Consolidated Complaint Filed: Dec. 21, 2017 others similarly situated. 22 Plaintiff, 23 24 HEALTH NET OF CALIFORNIA, INC, a 25 Califomia corporation; and DOES 1 -50, inclusive, 26 Defendant. 27 28 DEF.'S NOTICE OF NO OPPOSITION BY PLAINTIFF ARANA TO DEF.'S MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4158-8540-2394.3 1 TO A L L PARTIES AND E I T E H R COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that Plaintiff Arana has not filed any written opposition to 3 Defendant Health Net of Califomia's ("HNCA") Mofion As To Why Plainfiff Arana's Case 4 Should Not Proceed As a PAGA Representative Action ("PAGA Motion"), dated December 21, 5 2018, which is set for hearing on April 11, 2019, at 10:00 a.m. before this Court. 6 On December 21, 2019, HNCA filed the PAGA Motion and supporting evidence with this 7 Court and served the motion on Arana's counsel of record. See Decl. of Tim Long ISO HNCA's 8 Notice of No Opp'n, Ex. A (Proof of Service). As set forth in the PAGA Motion, Arana's 9 LWDA letter asserted six PAGA claims against HNCA: (1) HNCA's rounding policies resulted 10 in employees' time being inaccurately recorded and, as a result, inaccurately paid; (2) HNCA 11 improperly classified certain employees as being exempt from overtime; (3) HNCA incorrectly 12 calculated employees' regular rate of pay by failing to include non-discretionary bonuses and 13 "other remuneration" in that rate;' (4) HNCA knew or should have known that employees were 14 working off the clock and were not being compensated for that time; (5) HNCA violated the 15 Labor Code's requirement to provide meal breaks; and (6) HNCA violated the Labor Code's 16 requirements to provide rest breaks. PAGA Motion at 5-8; Long Decl. ISO PAGA Motion Ex. A. 17 Arana has not opposed the PAGA Motion and on that basis alone the Court should rule that Arana 18 cannot proceed with any of his PAGA claims on a representative basis. 19 Moreover, as the PAGA Motion proves, there is no legitimate basis for allowing Arana to 20 pursue any of his alleged PAGA claims on a representative basis. The Court has dismissed one of 21 these claims, rounding, and the derivative PAGA claim, on summary adjudication. PAGA 22 Motion, at 8. The Court also dismissed Arana's claim that overtime was miscalculated based on 23 an alleged failure to include a shift differential in the regular rate, as well as the related PAGA 24 claim. Id. In addition, Arana has stipulated that he is not pursuing any overtime/regular rate 25 claims (and necessarily, the derivative PAGA claims) based on whether HNCA should have 26 included SPOT Awards, ACA Incentive Payments, Wellness Incentive Payments and cash 27 ' In the course of this lawsuit, it became apparent that Arana's PAGA regular rate was based on HNCA having not 2g included SPOT Awards, ACA Incentive Payments, Wellness Incentive Payments and cash benefits employees received for waiving medical and dental benefits in the regular rate. As mentioned in the PAGA Motion and again here, Arana has withdrawn these claims. PAGA Motion, at 8. -1- DEF.'S NOTICE OF NO OPPOSITION BY PLAINTIFF ARANA TO DEF.'S MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4158-8540-2394.3 benefits employees received for waiving medical and dental benefits in the regular rate. Id. 2 Arana further stipulated that he is not pursuing an exemption claim, and any PAGA claims based 3 on that claim. Id. HNCA also submitted ample evidence that Arana's PAGA meal and rest break 4 and off-the-clock claims are time-barred and he is not an aggrieved employee within the meaning 5 of PAGA as to these claims {id. at 9-11), none of which Arana has disputed. HNCA also argued 6 that Arana's PAGA meal and rest break and off-the-clock claims should not go forward on a 7 representative basis because these claims are not manageable. Id. at 11-16. Again, Arana neither 8 disputed that manageability is appropriate for this Court to consider, HNCA's argument as to why 9 these PAGA claims are not manageable, nor any of the substantial evidence submitted by HNCA 10 in support of this argument. These are independent bases for mling that Arana may not proceed on any of these claims on a representative basis. 12 For the reasons set forth in the PAGA Motion, as summarized above, the Court should 13 grant HNCA's motion. 14 Dated: March 15, 2019 ORRICK, HERRINGTON & SUTCLIFFE LLP 15 16 By: TIMOTHY J. LONG 1^ Attomeys for Defendant ^g HEALTH NET OF CALIFORNIA, INC. 19 20 21 22 23 24 25 26 27 28 DEF.'S NOTICE OF NO OPPOSITION BY PLAINTIFF ARANA TO DEF.'S MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4158-8540-2394.3