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BLUMENTHAL NORDREHAUG BHOWMIK DE
BLOUW LLP
2 NORMAN B. BLUMENTHAL (SBN 068687)
APARAJIT BHOWMIK (SBN 248066)
3 PlYA MUKHERJEE (SBN 274217)
VICTORIA B. RIVAPALACIO (SBN 275115) HLED/ENDORSED
4 2255 Calle Clara
5
La JoUa, CA 92037 JAN 2^ 2020
Tel: 858.551.1223
Fax: 858.551.1232
6 norm@bamlawca.com By:. H. Portalanza
Deputy Clert
7 Attomeys for Plaintiff
ANDREA SPEARS
8
SETAREH LAW GROUP
9 SHAUN SETAREH (SBN 204514)
shaun@setarehlaw.com
10 9454 Wilshire Blvd., Suite 907
Beverly Hills, CA 90212
11 Telephone: (310) 888-7771
12 Attomeys for Plaintiff
TOMAS R. ARANA
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SACRAMENTO
15
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
16 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
17 Plaintiff, PLAINTIFFS' TRIAL PRESENTATION
AND MANAGEMENT PLAN
18 v.
Date: April 3, 2020
19 HEALTH NET OF CALIFORNIA, INC., a Time: 1:30 p.m.
Califomia Corporation; and Does 1 through 50, Dept.: 35
20 inclusive.
21 Defendants.
22 Original Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all FAC Filed: June 29, 2017
23 others similarly situated, Consolidated Complaint Filed: Dec. 21, 2017
24 Plaintiff,
25
26 HEALTH NET OF CALIFORNIA, fNC, a
Califomia corporation; and DOES 1 -50,
27 inclusive,
28 Defendant.
PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 L INTRODUCTION
2 Plaintiffs ANDREA SPEARS and TOMAS R. ARANA ("Plaintiffs") respectfully submit
3 the following Trial Presentation and Management Plan in advance of the Case Management
4 Conference scheduled for April 3, 2020.
5 During the September 27, 2019 Case Management Conference, Judge Perkins ordered the
6 fding of a "Trial Presentation and Management Plan." As explained by Judge Perkins, the purpose
7 of the Trial Presentation and Management Plan is to assist the Court in determining thetimingof
8 the trial in this matter, including briefing schedules on motions in limine, as well as discussing the
9 mechanics of trial. The Court also requested (1) responses to questions posed in the Court's August
10 29, 2019 Tentative Ruling Denying Defendant's Motion as to Why Arana's and Spears's Cases
11 Should Not proceed as PAGA Representative Actions; and (2) responses to the Department 35
12 standard Supplemental Case Management Conference Questionnaire for Labor Code Private
13 Attomey General Act of 2004 (PAGA) Cases.
14 To that end, Plaintiffs provide the following information to assist the Court in managing the
15 structure the forthcoming trial in this action.
16 IL PLAINTIFFS' CLAIMS AND ALLEGATIONS FOR TRIAL
17 In this wage and hour class and Private Attomey General Act ("PAGA") action, the
18 following class has been certified:
19
Miscalculation Class: All individuals who are or previously were employed by Defendant
20 Health Net of Califomia, Inc. ("Defendant") in Califomia and classified as non-exempt and
received "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA Incentive
21 payments and/or Wellness Incentive payments during the period of April 5, 2013 to December
31,2016.
22
22 The Court previously denied both Defendant's motion for summary adjudication and
24 Defendant's renewed motion for summary adjudication with respect to the cause of action for
25 failure to pay hourly and overtime wages based on the miscalculation of the regular rate of pay.
26 Plaintiffs allege that the "MedFlxWave" payments, "DenFlxWave" payments, SPOT
27
Awards, ACA Incentive payments and/or Wellness Incentive were improperly calculated and/or
28
improperly excluded from the regular rate with respect to claims:
PLAINTIFFS' TRIAL PRSENTATION AND MANAGEMENT PLAN
for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 1198;
2 • for unfair competition pursuant to Califomia Business & Professions Code § 17200,
et seq. ("UCL"), limited to the alleged violations of Califomia Labor Code §§510
3 and 1198;
subject to the Court's mling on supplemental briefing, for inaccurate wage
4 statements in violation of Califomia Labor Code § 226, limited to the allegations of
the claim for unpaid overtime wages pursuant to Califomia Labor Code §§510 and
5 1198;
g • the derivative claim for waitingtimepenalties pursuant to Califomia Labor Code §§
201, 202 and 203, limited to the allegations of the claim for unpaid overtime wages
7 pursuant to Califomia Labor Code §§510 and 1198.
^ OfF-the-Clock Class: All persons employed by Health Net of Califomia, Inc. and Health
Net, Inc. in hourly or non-exempt positions in Califomia during the relevant time, who
9 logged onto or tumed on a computer or device to access any time clock or timekeeping
10 system to record their hours worked.
With respect to the claims outlined above, the Court has already held that these certified
j2 claims satisfied the prerequisites of class certification, including manageability. The claims
J2 certified under C.C.P. section 382 are coextensive of the derivative PAGA claims, the trial of which
will be based on the same facts and law.
Additionally, Pjaintiffs allege two PAGA claims that are not derivative of the certified
claims:
16
(1) that Defendant's policies and practices for providing meal period premiums to the
17 Aggrieved Employees during the time period of April 5,2016 to December 31,2016
violated Califomia law, and
18
(2) that Defendant's policies and practices failed to capture all hours worked by
19
Aggrieved Employees utilizing the EMPCentertimekeepingsystem during the time
20 period of January 1, 2017 to present violated Califomia law.
21 The Court already denied Defendant's Motion as to Why Arana's and Spears's Cases
22 Should Not proceed as PAGA Representative Actions. As such, Plaintiffs request that the Court
22 adjudicate four (4) separate legal and factual issues during the trial in this matter:
24 (a) Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims)
25 (b) Off the Clock Claim (subsuming the Off the Clock Class and PAGA Claims)
2g (c) Meal Period Premium PAGA Claim
27 (d) EMPCenter Timekeeping System Off the Clock PAGA Claim
28
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1
III. PLAINTIFFS' RESPONSES TO OUESTIONS POSED IN THE COURT'S
2 AUGUST 29.2019 TENTATIVE RULING DENYING DEFENDANT'S MOTION
^ 1. Is either side demanding a jury trial on the claims that remain in the case?
^ At this time, Plaintiffs believe that a bench trial is appropriate with respect to the trial on all
claims and allegations
6 2. If so, which claims?
y Please see Plaintiffs' response to Question Number 1.
8 3. Does the court have the power to bifurcate or othenvise segment the trial of issues
in this case?
9
PlaintifTs oppose bifurcation. When a judge has ordered bifurcation so that unrelated causes
10
of action may be tried separately, the trial of the first cause of action does not constitute a trial of
11
the remaining causes of action for purposes of Code of Civil Procedure § 583.310. See Sagi
12
Plumbing v. Chartered Construction Corp., 123 Cal. 4th 445, 450 (2004). This case was filed on
13
April 5, 2017 and Plaintiffs are ready, willing, able and eager to bring this entire case to trial and
14
bring the case to a prompt conclusion. Accordingly, Plaintiffs request that the Court set attialdate
15
for this entire action to be tried. As this is an employment action, there is enough factual overlap
16
between the causes of action that no bifurcation or segmentation of causes of action will be
17
necessary.
18
The claims which Plaintiffs seek to bring to trial are:
19
(a) Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims)
20
(b) Off the Clock Claim (subsuming the Off the Clock Class and PAGA Claims)
21
(c) Meal Period Premium PAGA Claim
22
(d) EMPCenter Timekeeping System Off the Clock PAGA Claim
23
2^ 4. If so, should the court first conduct a trial of the claims that are made pursuant to
2^ Business and Professions Code § 17200?
Plaintiffs object to bifurcation between causes of action. This would be highly inefficient
26
where there is overlap between causes of action with respect to the same issues. For example,
separate trials for Cause of Action 3 (failure to provide Hourly Wages (Lab. Code §§ 223, 510,
28
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 1194, 1194.2, 1197, 1997.1, and 1198) and Cause of Action 6 (Unfair Competition (Bus. & Prof
2 Code §§ 17200, et seq.), which seek the same unpaid wages, would be impossible. Further,
3 segmentation would expose Plaintiffs to potential prejudice by failing to allow Plaintiffs to satisfy
4 Code of Civil Procedure § 583.310 and bring this entire action to trial within 5 years. As such,
5 while the four (4) issues identified above can be tried sequentially within the same trial, Plaintiffs
6 object to bifurcation between causes of action.
7 5. Could the trial itself be segmented between liability and damages?
8 Bifurcation with respect to the liability and damages is unwarranted in this case. Damages
9 calculations are strictly based on Defendant's own payroll and time records and, therefore, the
10 presentation of damages will be through an expert report on damages and testimony from Plaintiffs'
11 damages expert. Additionally, in this case, liability and damages are significantly intertwined,
12 because demonstrating Defendant's liability will also include a presentation of damages incurred.
13 As such, in this case, bifurcation is not advisable or needed as Plaintiffs' expert has already
14 demonstrated, through analyses and expert reports, that the damages and penalties owed to the
15 Class and Aggrieved Employees can be calculated based on information and data produced by
16 Defendant.
6. Do the court's complex powers, including the powers discussed in Cottle v.
Superior Court (1992) 3 Cal.App.4th 1367, allow the court to further conduct
Ig liability trials on specific claims, such as the computer login claim, while deferring
trial on some of the other claims?
19
While the Court has the power to conduct separate liability trials, such bifurcation is
20
inadvisable, unwarranted and unnecessary here as bifurcation would expose Plaintiffs to potential
21
prejudice with respect to the causes of action which are deferred. Instead, Plaintiffs contemplate a
22
single trial followed by a single decision where the trial consists of the adjudication of the four (4)
23
claims, sequentially:
24
(a) Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims)
25
(b) Off the Clock Claim (subsuming the Off the Clock Class and PAGA Claims)
26
(c) Meal Period Premium PAGA Claim
27
(d) EMPCenter Timekeeping System Off the Clock PAGA Claim
28
All of these issues can be adjudicated sequentially over the course of a single trial without
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 deferring trial on any of the other claims. While deferring trial on certain claims may be efficient
2 in some cases where the ultimate mling regarding one issue impacts another issue, here, the four
3 (4) issues are factually distinct and do not rely on each other. As such, a single trial on all four (4)
4 issues is appropriate without deferring trial on any of the issues outlined.
5 With respect to the Miscalculation Claim and Off the Clock Claim, Plaintiffs will also try
6 their derivative PAGA claims simultaneously with the class claims. Since PAGA claims need not
7 meet the procedural requirements of a class action and therefore do not need to be certified they are
8 not addressed in Plaintiffs' motion for class certification. See Arias v. Superior Court, 46 Cal. 4th
9 969, 975 (2009).
7. Now that the scope of the certified claims has been established, and given the
10 presence ofthe PAGA claims, should the plaintiff be required to submit a trial plan
]] that discusses in detail the plan for trying the rest of the case?
Plaintiffs hereby submit the detailed trial plan for trying the entire case for the Court's
12
consideration:
13
a. Length of Trial
14
Plaintiffs estimate that a bench trial in this matter with respect to all four (4) issues outlined
15
Jg above can be completed in 4-5 court days.
h. Motions in Limine
Jg At this time. Plaintiffs do not anticipate the filing of any motions in limine. To the extent,
however, that Defendant engages a rebuttal damages expert. Plaintiffs may file a motion in limine
20 to strike the expert's testimony and report.
21 Plaintiffs request that the Court set a briefing schedule on any anticipated motions in limine
22 which provide the responding party with 30 days to file and serve any oppositions.
22 e. Presentation of Evidence
24 The evidence in this matter is limited to documentary evidence (including both hard copy
25 and electronic documents), prior deposition testimony and oral testimony during trial. Using this
2g evidence, Plaintiffs will prove the elements of each of the four (4) issues in separate liability trials.
2y At this time. Plaintiffs do not propose any time limits on the presentation of evidence but
2g reserve the right to request time limits on the presentation of evidence at a later date. With respect
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 to damages and penalties. Plaintiffs will not be relying on statistical sampling or extrapolation of
2 data because Plaintiffs have the records for all Class Members and Aggrieved Employees such that
3 damages and penalties can be specifically calculated by Plaintiffs' damages expert.
4 d. Stmcturing the Issues in Trials:
5 Plaintiffs propose that the following structure:
6 • Opening Arguments
7 • Plaintiffs' case-in-chief which includes:
8 o Plaintiffs' presentation of evidence as to damages
9 calculations and expert witness testimony
10 • Defendant's case-in-chief
11 • Plaintiffs' rebuttal
12 • Closing Arguments
13 Each issue trial can be shortened substantially through mechanisms including stipulated
14 findings of fact and law and stipulations regarding the authenticity of Defendant's corporate
15 documents and records.
16 Additionally, Plaintiffs' ttial plan contemplates that Defendant will have an opportunity to
17 present any affirmative defenses.
e. Issue 1: Miscalculation Claim (subsuming the Miscalculation Class and PAGA
Claims):
, Plaintiffs allege that Defendant failed to include cash in lieu of benefit payments in the
2^ overtime wage payments paid to Plaintiffs. Cash paid in lieu of benefits must be included in the
21 regular rate. Flores v. City of San Gabriel, 824 F.3d 890, 905 (9th Cir. 2016). Flores makes clear
22 that the only money that can be excluded from the regular rate are "contributions made by the
23 employer for providing the benefits" defined in Section 7(e)(4) as old age, retirement, life, accident
24 or health insurance or similar benefits made by the employer to a third party. See 29 C.F.R. §
25 778.214 (b); and, 29 U.S.C. § 207(e)(4). The cash in lieu of benefit paid to Plaintiffs here, however,
26 was not a contribution by the employer to a third party, but was a direct payment by the employer.
27 The cash payment was, therefore, the exact opposite as a cash payment made to the employees in
28 lieu of providing the benefit of medical insurance.
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
The Court previously denied both Defendant's motion for summary adjudication and
2 Defendant's renewed motion for summary adjudication with respect to the cause of action for
3 failure to pay hourly and overtime wages based on the miscalculation of the regular rate of pay.
i. Determination of Liability and Damages as to the Class and the
Aggrieved Employees
The central liability issue to be determined is whether Defendant violated Califomia law by
6 failing to properly account and/or record all the time worked during the time they were under the
1 direction and control of Health Net. This first issue trial will also address Plaintiffs' derivative
8 claims for statutory penalties, derivative claims for civil penalties under the Private Attomeys
^ General Act of 2004, Labor Code sections 2698 et seq. ("PAGA"), and derivative claims for
10 restitution under Business & Professions Code sections 17200, et seq. with respect to the regular
11 rate miscalculation claim.
12 Plaintiffs will prove Defendant's liability through Defendant's own policy documents and
1^ handbooks, as well as deposition and witness testimony, including Defendant's corporate designees
and Plaintiffs' expert who has calculated damages and penalties associated with the miscalculation
'5 claim.
16 With respect to damages and penalties, the central issue will be determining the amount of
17 relief to which the class and Aggrieved Employees are entitled to. Although it is well-settled that
8 the calculation of monetary relief on a class-wide basis may be determined using innovative
1^ techniques and is distinctly manageable by using surveys and/or statistical sampling (see, e.g.
Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 27 (2014); Sav-On v. Superior Court, 34 Cal. 4th
21 319, 326-27 (2004)), such innovative techniques and statistical, representative sampling will not be
22 necessary here as Plaintiff already has all the discovery necessary to calculate damages and
23 penahies owed to the entire class, both as an aggregate and on an individual basis. With respect to
24 this issue, which is that Defendant miscalculated the regular rate by failing to include and/or
25 improperly calculate "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA
26 Incentive payments and Wellness Incentive payments, damages will be determined by a
27 mathematical computation of the correct regular rates versus the base hourly rates that employees
28 yyere paid because an employee's "regular rate can be calculated from Defendant's payroll records,
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 which records all compensation eamed each pay period. Determining derivative PAGA penalties
2 will be a simple matter of multiplying the number of violations by the penalties set forth in the
3 statute. See Cal. Lab.
4 Code §2699(0.
5 ii. Witnesses for Trial
6 Plaintiffs project that they will seek testimony from 6 witnesses (consisting of 2 Plaintiffs,
7 3 Defendant's Persons Most Knowledgeable, 1 expert damages witness)
8 iii. Exhibits for Trial
9 At this time, Plaintiffs anticipate that the vast majority, if not all exhibits, will be documents
10 produced by Defendant in this litigation. In advance of trial, Plaintiffs will provide a list of
11 proposed exhibits to Defendant to determine whether Defendant will agree to stipulate to the
12 authenticity of the proposed exhibits. Plaintiffs anticipate the following number of exhibits for this
13 issue:
14 20-25 exhibits including, but not limited to:
15 • Plaintiffs' wage statements
16 • Exemplar Class Member wage statements
17 • Defendant's Associates Benefit Program and applicable amendments
18 • Defendant's Summary Plan Descriptions and applicable amendments and updates
19 • Declarations from Defendant's employees
20 • Deposition transcripts from Defendant's employees and Persons Most
21 Knowledgeable
22 • Payroll records for the Class Members (in electronic format)
23 • Expert Damages Report
24 • The operative consolidated complaint
f Issue 2: Off the Clock Claim (subsuming the Off the Clock Class and PAGA
25 i. Determination of Liability and Damages as to the Class and the
Aggrieved Employees
26
27 The central liability issue to be determined is whether Defendant violated Califomia law by
28 failing to properly account and/or record the hours worked by employees for all the time spent
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 working and/or under the direction and control of the Health Net. This first issue trial will also
2 address Plaintiffs' derivative claims for statutory penalties, derivative claims for civil penalties
3 under the Private Attomeys General Act of 2004, Labor Code sections 2698 et seq. ("PAGA"), and
4 derivative claims for restitution under Business & Professions Code sections 17200, et seq. with
5 respect to the off-the-clock wage claim.
6 Plaintiffs will prove Defendant's liability through Defendant's own policy documents and
7 handbooks, as well as deposition and witness testimony, including Defendant's corporate designees
8 and Plaintiffs' expert who has calculated damages and penalties associated with the miscalculation
9 claim.
10 With respect to damages and penalties, the centtal issue will be determining the amount of
11 relief to which the class and Aggrieved Employees are entitled to. Although it is well-settled that
12 the calculation of monetary relief on a class-wide basis may be determined using innovative
13 techniques and is distinctly manageable by using surveys and/or statistical sampling (see, e.g.
14 Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 27 (2014); Sav-On v. Superior Court, 34 Cal. 4th
15 319, 326-27 (2004)), such innovative techniques and statistical, representative sampling will not be
16 necessary here as Plaintiff already has all the discovery necessary to calculate damages and
17 penalties owed to the entire class, both as an aggregate and on an individual basis. With respect to
18 this issue, which is that Defendant failed to property account and/or record the hours worked by
19 employees for all the time spent working and/or under the direction and control of Health Net,
20 damages will be determined by a mathematical computation of the additional time spent booting
21 up their computers and logging in to record their start times versus the base hourly rates that they
22 were actually paid which can be calculated from Defendant's payroll records, which records the
23 compensation eamed each pay period without taking into account the off-the-clock work.
24 Determining derivative PAGA penahies will be a simple matter of multiplying the number of
25 violations by the penalties set forth in the statute. See Cal. Lab.
26 Code § 2699(f).
27
28
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
ii. Witnesses for Trial
2 Plaintiffs project that they will seek testimony from 6 witnesses (consisting of 2 Plaintiffs,
3 3 Defendant's Persons Most Knowledgeable, several expert witness who will also need to conduct
4 surveys).
5 iii. Exhibits for Trial
g. Claims):
6
20-25 exhibits including, but not limited to:
7
• Plaintiffs' wage statements
8
• Exemplar Class Member wage statements
9
• Plaintiffs time punch records for the days worked
10
• Exemplar Class Members time punch records for the days worked
• Declarations from Defendant's employees
12
• Deposition transcripts from Defendant's employees and Persons Most
13
Knowledgeable
14
• Payroll records for the Class Members (in electronic format)
15
• Expert Damages Report
16
• The operative consolidated complaint
17
h. Issue 3: Meal Period Premium PAGA Claim:
18
During thetimeperiod of April 5, 2016 to December 31, 2016, Defendant's "Person Most
19
Knowledgeable" testified that Defendant's uniform policy for providing meal period premiums was
20
for all meal period premiums to be paid using the payroll code "DTO". However, the policies
21
provided to all Aggrieved Employees uniformly failed to advise them to use the pay code "DTO"
22
for meal period premiums. This resulted in numerous unpaid meal period premiums.
23 i. Determination of Liability and Penalties as to the Aggrieved
Employees
24
The central issue to be determined is whether Defendant violated Califomia law by failing
25
to advise the Aggrieved Employees to use the pay code "DTO" for payment of meal period
26
premiums.
27
As such, Plaintiffs will rely on the testimony from Defendant's PMK witnesses,
28
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 Defendant's own written policies, and a report by PlaintifPs expert analyzing the frequency meal
2 period violations which did not resuh in the payment of a meal period premium. Defendant may
3 then raise any defenses as the employer bears the burden of proving any and all defenses, not
4 Plaintiffs. In Carrington v. Starbucks Corporation, 30 Cal. App. 5th 504 (2018), the court
5 concluded that a PAGA action pertaining to meal break violations for over a hundred thousand
6 aggrieved employees was not over-individualized to render it unmanageable. Carrington, 30 Cal.
7 App. 5th at 526. Here, there are only 2,551 Aggrieved Employees and the primary issue of
8 contention is Defendant's failure to provide a policy and practice for the Aggrieved Employees to
9 record meal period penalties.
10 With respect to the calculation of penalties, Defendant has produced all time and payroll
11 data for all aggrieved employees who did not opt out following issuance of a Belaire-West notice.
12 Utilizing such data in conjunction with Defendant's PMK testimony, PlaintifPs expert formulated
13 a penalties models for affected employees during the PAGA period demonstrating a high volume
14 of missed, late, or shortened meal periods which went unpaid. As such, Plaintiffs will not need to
15 rely on representative statistics or survey evidence.
16 ii. Witnesses for Trial
17 5 witnesses (consisting of 2 Plaintiffs, 2 Defendant's Persons Most Knowledgeable, 1 expert
18 damages/penalties witness)
19 iii. Exhibits for Trial
20 At this time. Plaintiffs anticipate that the vast majority, if not all exhibits, will be documents
21 produced by Defendant in this litigation. In advance of trial. Plaintiffs will provide a list of
22 proposed exhibits to Defendant to determine whether Defendant will agree to stipulate to the
23 authenticity of the proposed exhibits. Plaintiffs anticipate the following number of exhibits for this
24 issue:
25 15 exhibits including, but not limited to:
26 • Plaintiffs' wage statements
27 • Exemplar Class Member wage statements
28 • Defendant's written timekeeping and wage and hour policies and applicable
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 amendments
2 • Deposition transcripts from Defendant's Persons Most Knowledgeable
3 • Payroll records for the Class Members (in electronic format)
4 • Time records for the Class Members (in electronic format)
5 • Expert Damages Report
6 • The operative consolidated complaint
7 Plaintiffs reserve the right to modify, add, or remove proposed exhibits. This list is provided
8 as a preliminary list for the Court's consideration.
9 i. Issue 4: EMPCenter Timekeeping System Off the Clock PAGA Claim:
10 During the time period beginning January 1, 2017 to the present. Defendant switched to a
11 new timekeeping system. As a result of the change to the new EMPCenter timekeeping system,
12 Defendant's policies changed accordingly. Defendant submitted a declaration from its Director of
13 Human Resources stating that the previous timekeeping system, PeopleSoft, and the current
14 timekeeping system, EMPCenter, have both always permitted employees to manually enter their
15 start and stop times. However, the policies provide to all Aggrieved Employees uniformly failed to
16 advise them that they could manually enter their start and stop times. This resulted in Aggrieved
17 Employees who were not paid for all hours worked.
18 Similarly, Plaintiff will rely on the testimony from Defendant's PMK, declarations
19 submitted by Defendant, Defendant's own written policies, and a report by Plaintiff's expert
20 analyzing the amount of time and the frequency with which Defendant's policy failed to capture ali
21 hours worked by aggrieved employees. Likewise, Plaintiff will follow the trial model successfully
22 utilized in Carrington, supra at 526.
23 i. Determination of Liability and Penalties as to the Aggrieved Employees
24
The central liability issue to be determined is whether Defendant violated Califomia law by
25
failing to properly account and/or record all the time worked during the time they were under the
26
direction and control of Health Net. This first issue trial will also address Plaintiffs' derivative
27
claims for statutory penalties, derivative claims for civil penalties under the Private Attomeys
28
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 General Act of 2004, Labor Code sections 2698 et seq. ("PAGA"), and derivative claims for
2 restitution under Business & Professions Code sections 17200, et seq. with respect to the regular
3 rate miscalculation claim.
4 Plaintiffs will prove Defendant's liability through Defendant's own policy documents and
5 handbooks, as well as deposition and witness testimony, including Defendant's corporate designees
6 and Plaintiffs' expert who has calculated damages and penalties associated with the miscalculation
7 claim.
8 With respect to damages and penalties, the central issue will be determining the amount of
9 relief to which the class and Aggrieved Employees are entitled to. Although it is well-settled that
10 the calculation of monetary relief on a class-wide basis may be determined using innovative
11 techniques and is distinctly manageable by using surveys and/or statistical sampling (see, e.g.
12 Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 27 (2014); Sav-On v. Superior Court, 34 Cal. 4th
13 319, 326-27 (2004)), such innovative techniques and statistical, representative sampling will not be
14 necessary here as Plaintiff already has all the discovery necessary to calculate damages and
15 penalties owed to the entire class, both as an aggregate and on an individual basis. With respect to
16 this issue, which is that Defendant miscalculated the regular rate by failing to include and/or
17 improperly calculate "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA
18 Incentive payments and Wellness Incentive payments, damages will be determined by a
19 mathematical computation of the correct regular rates versus the base hourly rates that employees
20 were paid because an employee's "regular rate can be calculated from Defendant's payroll records,
21 which records all compensation eamed each pay period. Determining derivative PAGA penalties
22 will be a simple matter of multiplying the number of violations by the penalties set forth in the
23 statute. See Cal. Lab.
24 Code § 2699(0.
25 ii. Witnesses for Trial
26 Plaintiffs project that they will seek testimony from 6 witnesses (consisting of 2 Plaintiffs,
27 3 Defendant's Persons Most Knowledgeable, several expert witness who will also need to conduct
28 surveys).
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 iii. Exhibits for Trial
2
At this time. Plaintiffs anticipate that the vast majority, if not all exhibits, will be documents
3
produced by Defendant in this litigation. In advance of trial, Plaintiffs will provide a list of
4
proposed exhibits to Defendant to determine whether Defendant will agree to stipulate to the
5
authenticity of the proposed exhibits. Plaintiffs anticipate the following number of exhibits for this
6
issue:
7
15 exhibits including, but not limited to:
8
• Plaintiffs' wage statements
9
• Exemplar Class Member wage statements
10
• Defendant's written timekeeping and wage and hour policies and applicable
11
amendments
12
• Deposition transcripts from Defendant's Persons Most Knowledgeable
13
• Payroll records for the Class Members (in electronic format)
14
• Time records for the Class Members (in electronic format)
15
• Expert Damages Report
16
• The operative consolidated complaint
17
Plaintiffs reserve the right to modify, add, or remove proposed exhibits. This list is provided
18
as a preliminary list for the Court's consideration.
19
20 IV. PLAINTIFFS' RESPONSES TO SUPPLEMENTAL CASE MANAGEMENT
2j CONFERENCE QUESTIONNAIRE FOR PAGA CASES
22 L If either side is demanding a jury trial does any party contend that there is not a
right to jury trial for some of the claims made in this action?
23
As stated above, at this time. Plaintiffs believe that a bench trial is appropriate with respect to
24
the trial on all claims and allegations.
25
2. If so, which ones?
26
As stated above, at this time. Plaintiffs believe that a bench trial is appropriate with respect to
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the trial on all claims and allegations.
28 3. Does anyone contest the adequacy ofanyplaintifTto be a representative for any of
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 the claims made in this action?
2 The Court has already determined that the named plaintiffs, Andrea Spears and Tomas
3 Arana, are adequate representatives of the class. As such, no further inquiries regarding adequacy
4 are necessary. Additionally, Califomia law does not include an adequacy requirement with respect
5 to PAGA representative actions. Finally, the Court already denied Defendant's Motion as to Why
6 Arana's and Spears's Cases Should Not proceed as PAGA Representative Actions.
7 4. If so, which ones and how do the parties plan to resolve this issue before trial?
8 The Court has already determined that the named plaintiffs, Andrea Spears and Tomas
9 Arana, are adequate representatives of the class. As such, no further inquiries regarding adequacy
10 are necessary. Additionally, Califomia law does not include an adequacy requirement with respect
to PAGA representative actions. Finally, the Court already denied Defendant's Motion as to Why
12 Arana's and Spears's Cases Should Not proceed as PAGA Representative Actions.
5. Does anyone contend that any plaintiff did not comply with the requirements
13 necessary to allow him or her to pursue claims on behalf of the Labor Workforce
14 Development Agency (L WD A)?
J^ The Plaintiffs have complied with the requirements necessary to allow them to pursue
claims on behalf of the LWDA. Additionally, Defendant already had an opportunity to object to
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Plaintiffs' LWDA letters in Defendant's denied Motion as to Why Arana's and Spears's Cases
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Should Not proceed as PAGA Representative Actions, but failed to do so. As such, Defendant's
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failure to assert this defense in the denied Motion as to Why Arana's and Spears's Cases Should
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Not proceed as PAGA Representative Actions, waives Defendant's right to assert such an objection
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now.
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22 6. If so, how the parties plan to resolve this issue before trial?
23 The Plaintiffs have complied with the requirements necessary to allow them to pursue
24 claims on behalf of the LWDA. Additionally, Defendant already had an opportunity to object to
25 Plaintiffs' LWDA letters in Defendant's denied Motion as to Why Arana's and Spears's Cases
26 Should Not proceed as PAGA Representative Actions, but failed to do so. As such. Defendant's
27 failure to assert this defense in the denied Motion as to Why Arana's and Spears's Cases Should
28 Not proceed as PAGA Representative Actions, waives Defendant's right to assert such an objection
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
1 now.
7. Does anyone contend that plaintiff(s) should be denied representative status for
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any reason, including manageability or typicality?
3 The Court has already determined that the named plaintiffs, Andrea Spears and Tomas
4 Arana, are adequate representatives of the class. As such, no further inquiries regarding adequacy
5 are necessary. Additionally, Califomia law does not require in a PAGA representative action that
6 any of the elements of class certification be met in order to pursue a PAGA claim, including
1 manageability or typicality. Finally, the Court already denied Defendant's Motion as to Why
8 Arana's and Spears's Cases Should Not proceed as PAGA Representative Actions. As such,
^ Plaintiffs may proceed with the PAGA actions on behalf of the State of Califomia.
I^ As stated above, Plaintiffs intend to seek PAGA penalties with respect to two claims aside
II from the PAGA penalties derivative of certified claims: (1) that Defendant's uniform policies for
12 providing meal period premiums to the Aggrieved Employees during the time period of April 5,
13 2016 to December 31, 2016 violated Califomia law, and (2) that Defendant's uniform policies
14 failed to capture all hours worked by Aggrieved Employees utilizing the EMPCenter timekeeping
system during the time period of January 1, 2017 to present violated Califomia law.
6 Plaintiffs' remaining PAGA claims not derivative of certified claims are discrete in nature
11 and will be based on Defendant's own business records, testimony from Defendant's "Person Most
8 Knowledgeable" designee, and testimony from Plaintiffs' expert witness.
1^ 8. If so, how the parties plan to resolve this issue before trial?
2^ Please see Plaintiffs' response to Question Number 7, above.
21 9. When will the issues listed above be ready to be resolved?
22 Please see Plaintiffs' response to Question Number 7, above.
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
Dated: Januarv 24, 2020 BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW LLP
By: ^guJU iX
4 APARAJIT BHOWM OWMIKj
PIYA MUKHERJEE
5 Attomeys for Plamtiff
ANDREA SPEARS
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7 Dated: January 24, 2020 SETAREH LAW GROUP
8
9 By:
SHAUN SETAREH
10 WILLIAM PAO
Attomeys for Plaintiff
11 TOMAS R. ARANA
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PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN
Preview
BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2 NORMAN B. BLUMENTHAL (SBN 068687) APARAJIT BHOWMIK (SBN 248066) 3 PlYA MUKHERJEE (SBN 274217) VICTORIA B. RIVAPALACIO (SBN 275115) HLED/ENDORSED 4 2255 Calle Clara 5 La JoUa, CA 92037 JAN 2^ 2020 Tel: 858.551.1223 Fax: 858.551.1232 6 norm@bamlawca.com By:. H. Portalanza Deputy Clert 7 Attomeys for Plaintiff ANDREA SPEARS 8 SETAREH LAW GROUP 9 SHAUN SETAREH (SBN 204514) shaun@setarehlaw.com 10 9454 Wilshire Blvd., Suite 907 Beverly Hills, CA 90212 11 Telephone: (310) 888-7771 12 Attomeys for Plaintiff TOMAS R. ARANA 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 16 of herself and on behalf of all persons similarly CU-OE-GDS situated, 17 Plaintiff, PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 18 v. Date: April 3, 2020 19 HEALTH NET OF CALIFORNIA, INC., a Time: 1:30 p.m. Califomia Corporation; and Does 1 through 50, Dept.: 35 20 inclusive. 21 Defendants. 22 Original Complaint Filed: April 5, 2017 TOMAS R. ARANA, on behalf of himself, all FAC Filed: June 29, 2017 23 others similarly situated, Consolidated Complaint Filed: Dec. 21, 2017 24 Plaintiff, 25 26 HEALTH NET OF CALIFORNIA, fNC, a Califomia corporation; and DOES 1 -50, 27 inclusive, 28 Defendant. PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 L INTRODUCTION 2 Plaintiffs ANDREA SPEARS and TOMAS R. ARANA ("Plaintiffs") respectfully submit 3 the following Trial Presentation and Management Plan in advance of the Case Management 4 Conference scheduled for April 3, 2020. 5 During the September 27, 2019 Case Management Conference, Judge Perkins ordered the 6 fding of a "Trial Presentation and Management Plan." As explained by Judge Perkins, the purpose 7 of the Trial Presentation and Management Plan is to assist the Court in determining thetimingof 8 the trial in this matter, including briefing schedules on motions in limine, as well as discussing the 9 mechanics of trial. The Court also requested (1) responses to questions posed in the Court's August 10 29, 2019 Tentative Ruling Denying Defendant's Motion as to Why Arana's and Spears's Cases 11 Should Not proceed as PAGA Representative Actions; and (2) responses to the Department 35 12 standard Supplemental Case Management Conference Questionnaire for Labor Code Private 13 Attomey General Act of 2004 (PAGA) Cases. 14 To that end, Plaintiffs provide the following information to assist the Court in managing the 15 structure the forthcoming trial in this action. 16 IL PLAINTIFFS' CLAIMS AND ALLEGATIONS FOR TRIAL 17 In this wage and hour class and Private Attomey General Act ("PAGA") action, the 18 following class has been certified: 19 Miscalculation Class: All individuals who are or previously were employed by Defendant 20 Health Net of Califomia, Inc. ("Defendant") in Califomia and classified as non-exempt and received "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA Incentive 21 payments and/or Wellness Incentive payments during the period of April 5, 2013 to December 31,2016. 22 22 The Court previously denied both Defendant's motion for summary adjudication and 24 Defendant's renewed motion for summary adjudication with respect to the cause of action for 25 failure to pay hourly and overtime wages based on the miscalculation of the regular rate of pay. 26 Plaintiffs allege that the "MedFlxWave" payments, "DenFlxWave" payments, SPOT 27 Awards, ACA Incentive payments and/or Wellness Incentive were improperly calculated and/or 28 improperly excluded from the regular rate with respect to claims: PLAINTIFFS' TRIAL PRSENTATION AND MANAGEMENT PLAN for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 1198; 2 • for unfair competition pursuant to Califomia Business & Professions Code § 17200, et seq. ("UCL"), limited to the alleged violations of Califomia Labor Code §§510 3 and 1198; subject to the Court's mling on supplemental briefing, for inaccurate wage 4 statements in violation of Califomia Labor Code § 226, limited to the allegations of the claim for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 5 1198; g • the derivative claim for waitingtimepenalties pursuant to Califomia Labor Code §§ 201, 202 and 203, limited to the allegations of the claim for unpaid overtime wages 7 pursuant to Califomia Labor Code §§510 and 1198. ^ OfF-the-Clock Class: All persons employed by Health Net of Califomia, Inc. and Health Net, Inc. in hourly or non-exempt positions in Califomia during the relevant time, who 9 logged onto or tumed on a computer or device to access any time clock or timekeeping 10 system to record their hours worked. With respect to the claims outlined above, the Court has already held that these certified j2 claims satisfied the prerequisites of class certification, including manageability. The claims J2 certified under C.C.P. section 382 are coextensive of the derivative PAGA claims, the trial of which will be based on the same facts and law. Additionally, Pjaintiffs allege two PAGA claims that are not derivative of the certified claims: 16 (1) that Defendant's policies and practices for providing meal period premiums to the 17 Aggrieved Employees during the time period of April 5,2016 to December 31,2016 violated Califomia law, and 18 (2) that Defendant's policies and practices failed to capture all hours worked by 19 Aggrieved Employees utilizing the EMPCentertimekeepingsystem during the time 20 period of January 1, 2017 to present violated Califomia law. 21 The Court already denied Defendant's Motion as to Why Arana's and Spears's Cases 22 Should Not proceed as PAGA Representative Actions. As such, Plaintiffs request that the Court 22 adjudicate four (4) separate legal and factual issues during the trial in this matter: 24 (a) Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims) 25 (b) Off the Clock Claim (subsuming the Off the Clock Class and PAGA Claims) 2g (c) Meal Period Premium PAGA Claim 27 (d) EMPCenter Timekeeping System Off the Clock PAGA Claim 28 -1 - PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 III. PLAINTIFFS' RESPONSES TO OUESTIONS POSED IN THE COURT'S 2 AUGUST 29.2019 TENTATIVE RULING DENYING DEFENDANT'S MOTION ^ 1. Is either side demanding a jury trial on the claims that remain in the case? ^ At this time, Plaintiffs believe that a bench trial is appropriate with respect to the trial on all claims and allegations 6 2. If so, which claims? y Please see Plaintiffs' response to Question Number 1. 8 3. Does the court have the power to bifurcate or othenvise segment the trial of issues in this case? 9 PlaintifTs oppose bifurcation. When a judge has ordered bifurcation so that unrelated causes 10 of action may be tried separately, the trial of the first cause of action does not constitute a trial of 11 the remaining causes of action for purposes of Code of Civil Procedure § 583.310. See Sagi 12 Plumbing v. Chartered Construction Corp., 123 Cal. 4th 445, 450 (2004). This case was filed on 13 April 5, 2017 and Plaintiffs are ready, willing, able and eager to bring this entire case to trial and 14 bring the case to a prompt conclusion. Accordingly, Plaintiffs request that the Court set attialdate 15 for this entire action to be tried. As this is an employment action, there is enough factual overlap 16 between the causes of action that no bifurcation or segmentation of causes of action will be 17 necessary. 18 The claims which Plaintiffs seek to bring to trial are: 19 (a) Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims) 20 (b) Off the Clock Claim (subsuming the Off the Clock Class and PAGA Claims) 21 (c) Meal Period Premium PAGA Claim 22 (d) EMPCenter Timekeeping System Off the Clock PAGA Claim 23 2^ 4. If so, should the court first conduct a trial of the claims that are made pursuant to 2^ Business and Professions Code § 17200? Plaintiffs object to bifurcation between causes of action. This would be highly inefficient 26 where there is overlap between causes of action with respect to the same issues. For example, separate trials for Cause of Action 3 (failure to provide Hourly Wages (Lab. Code §§ 223, 510, 28 -2- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 1194, 1194.2, 1197, 1997.1, and 1198) and Cause of Action 6 (Unfair Competition (Bus. & Prof 2 Code §§ 17200, et seq.), which seek the same unpaid wages, would be impossible. Further, 3 segmentation would expose Plaintiffs to potential prejudice by failing to allow Plaintiffs to satisfy 4 Code of Civil Procedure § 583.310 and bring this entire action to trial within 5 years. As such, 5 while the four (4) issues identified above can be tried sequentially within the same trial, Plaintiffs 6 object to bifurcation between causes of action. 7 5. Could the trial itself be segmented between liability and damages? 8 Bifurcation with respect to the liability and damages is unwarranted in this case. Damages 9 calculations are strictly based on Defendant's own payroll and time records and, therefore, the 10 presentation of damages will be through an expert report on damages and testimony from Plaintiffs' 11 damages expert. Additionally, in this case, liability and damages are significantly intertwined, 12 because demonstrating Defendant's liability will also include a presentation of damages incurred. 13 As such, in this case, bifurcation is not advisable or needed as Plaintiffs' expert has already 14 demonstrated, through analyses and expert reports, that the damages and penalties owed to the 15 Class and Aggrieved Employees can be calculated based on information and data produced by 16 Defendant. 6. Do the court's complex powers, including the powers discussed in Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, allow the court to further conduct Ig liability trials on specific claims, such as the computer login claim, while deferring trial on some of the other claims? 19 While the Court has the power to conduct separate liability trials, such bifurcation is 20 inadvisable, unwarranted and unnecessary here as bifurcation would expose Plaintiffs to potential 21 prejudice with respect to the causes of action which are deferred. Instead, Plaintiffs contemplate a 22 single trial followed by a single decision where the trial consists of the adjudication of the four (4) 23 claims, sequentially: 24 (a) Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims) 25 (b) Off the Clock Claim (subsuming the Off the Clock Class and PAGA Claims) 26 (c) Meal Period Premium PAGA Claim 27 (d) EMPCenter Timekeeping System Off the Clock PAGA Claim 28 All of these issues can be adjudicated sequentially over the course of a single trial without -3- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 deferring trial on any of the other claims. While deferring trial on certain claims may be efficient 2 in some cases where the ultimate mling regarding one issue impacts another issue, here, the four 3 (4) issues are factually distinct and do not rely on each other. As such, a single trial on all four (4) 4 issues is appropriate without deferring trial on any of the issues outlined. 5 With respect to the Miscalculation Claim and Off the Clock Claim, Plaintiffs will also try 6 their derivative PAGA claims simultaneously with the class claims. Since PAGA claims need not 7 meet the procedural requirements of a class action and therefore do not need to be certified they are 8 not addressed in Plaintiffs' motion for class certification. See Arias v. Superior Court, 46 Cal. 4th 9 969, 975 (2009). 7. Now that the scope of the certified claims has been established, and given the 10 presence ofthe PAGA claims, should the plaintiff be required to submit a trial plan ]] that discusses in detail the plan for trying the rest of the case? Plaintiffs hereby submit the detailed trial plan for trying the entire case for the Court's 12 consideration: 13 a. Length of Trial 14 Plaintiffs estimate that a bench trial in this matter with respect to all four (4) issues outlined 15 Jg above can be completed in 4-5 court days. h. Motions in Limine Jg At this time. Plaintiffs do not anticipate the filing of any motions in limine. To the extent, however, that Defendant engages a rebuttal damages expert. Plaintiffs may file a motion in limine 20 to strike the expert's testimony and report. 21 Plaintiffs request that the Court set a briefing schedule on any anticipated motions in limine 22 which provide the responding party with 30 days to file and serve any oppositions. 22 e. Presentation of Evidence 24 The evidence in this matter is limited to documentary evidence (including both hard copy 25 and electronic documents), prior deposition testimony and oral testimony during trial. Using this 2g evidence, Plaintiffs will prove the elements of each of the four (4) issues in separate liability trials. 2y At this time. Plaintiffs do not propose any time limits on the presentation of evidence but 2g reserve the right to request time limits on the presentation of evidence at a later date. With respect -4- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 to damages and penalties. Plaintiffs will not be relying on statistical sampling or extrapolation of 2 data because Plaintiffs have the records for all Class Members and Aggrieved Employees such that 3 damages and penalties can be specifically calculated by Plaintiffs' damages expert. 4 d. Stmcturing the Issues in Trials: 5 Plaintiffs propose that the following structure: 6 • Opening Arguments 7 • Plaintiffs' case-in-chief which includes: 8 o Plaintiffs' presentation of evidence as to damages 9 calculations and expert witness testimony 10 • Defendant's case-in-chief 11 • Plaintiffs' rebuttal 12 • Closing Arguments 13 Each issue trial can be shortened substantially through mechanisms including stipulated 14 findings of fact and law and stipulations regarding the authenticity of Defendant's corporate 15 documents and records. 16 Additionally, Plaintiffs' ttial plan contemplates that Defendant will have an opportunity to 17 present any affirmative defenses. e. Issue 1: Miscalculation Claim (subsuming the Miscalculation Class and PAGA Claims): , Plaintiffs allege that Defendant failed to include cash in lieu of benefit payments in the 2^ overtime wage payments paid to Plaintiffs. Cash paid in lieu of benefits must be included in the 21 regular rate. Flores v. City of San Gabriel, 824 F.3d 890, 905 (9th Cir. 2016). Flores makes clear 22 that the only money that can be excluded from the regular rate are "contributions made by the 23 employer for providing the benefits" defined in Section 7(e)(4) as old age, retirement, life, accident 24 or health insurance or similar benefits made by the employer to a third party. See 29 C.F.R. § 25 778.214 (b); and, 29 U.S.C. § 207(e)(4). The cash in lieu of benefit paid to Plaintiffs here, however, 26 was not a contribution by the employer to a third party, but was a direct payment by the employer. 27 The cash payment was, therefore, the exact opposite as a cash payment made to the employees in 28 lieu of providing the benefit of medical insurance. -5- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN The Court previously denied both Defendant's motion for summary adjudication and 2 Defendant's renewed motion for summary adjudication with respect to the cause of action for 3 failure to pay hourly and overtime wages based on the miscalculation of the regular rate of pay. i. Determination of Liability and Damages as to the Class and the Aggrieved Employees The central liability issue to be determined is whether Defendant violated Califomia law by 6 failing to properly account and/or record all the time worked during the time they were under the 1 direction and control of Health Net. This first issue trial will also address Plaintiffs' derivative 8 claims for statutory penalties, derivative claims for civil penalties under the Private Attomeys ^ General Act of 2004, Labor Code sections 2698 et seq. ("PAGA"), and derivative claims for 10 restitution under Business & Professions Code sections 17200, et seq. with respect to the regular 11 rate miscalculation claim. 12 Plaintiffs will prove Defendant's liability through Defendant's own policy documents and 1^ handbooks, as well as deposition and witness testimony, including Defendant's corporate designees and Plaintiffs' expert who has calculated damages and penalties associated with the miscalculation '5 claim. 16 With respect to damages and penalties, the central issue will be determining the amount of 17 relief to which the class and Aggrieved Employees are entitled to. Although it is well-settled that 8 the calculation of monetary relief on a class-wide basis may be determined using innovative 1^ techniques and is distinctly manageable by using surveys and/or statistical sampling (see, e.g. Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 27 (2014); Sav-On v. Superior Court, 34 Cal. 4th 21 319, 326-27 (2004)), such innovative techniques and statistical, representative sampling will not be 22 necessary here as Plaintiff already has all the discovery necessary to calculate damages and 23 penahies owed to the entire class, both as an aggregate and on an individual basis. With respect to 24 this issue, which is that Defendant miscalculated the regular rate by failing to include and/or 25 improperly calculate "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA 26 Incentive payments and Wellness Incentive payments, damages will be determined by a 27 mathematical computation of the correct regular rates versus the base hourly rates that employees 28 yyere paid because an employee's "regular rate can be calculated from Defendant's payroll records, -6- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 which records all compensation eamed each pay period. Determining derivative PAGA penalties 2 will be a simple matter of multiplying the number of violations by the penalties set forth in the 3 statute. See Cal. Lab. 4 Code §2699(0. 5 ii. Witnesses for Trial 6 Plaintiffs project that they will seek testimony from 6 witnesses (consisting of 2 Plaintiffs, 7 3 Defendant's Persons Most Knowledgeable, 1 expert damages witness) 8 iii. Exhibits for Trial 9 At this time, Plaintiffs anticipate that the vast majority, if not all exhibits, will be documents 10 produced by Defendant in this litigation. In advance of trial, Plaintiffs will provide a list of 11 proposed exhibits to Defendant to determine whether Defendant will agree to stipulate to the 12 authenticity of the proposed exhibits. Plaintiffs anticipate the following number of exhibits for this 13 issue: 14 20-25 exhibits including, but not limited to: 15 • Plaintiffs' wage statements 16 • Exemplar Class Member wage statements 17 • Defendant's Associates Benefit Program and applicable amendments 18 • Defendant's Summary Plan Descriptions and applicable amendments and updates 19 • Declarations from Defendant's employees 20 • Deposition transcripts from Defendant's employees and Persons Most 21 Knowledgeable 22 • Payroll records for the Class Members (in electronic format) 23 • Expert Damages Report 24 • The operative consolidated complaint f Issue 2: Off the Clock Claim (subsuming the Off the Clock Class and PAGA 25 i. Determination of Liability and Damages as to the Class and the Aggrieved Employees 26 27 The central liability issue to be determined is whether Defendant violated Califomia law by 28 failing to properly account and/or record the hours worked by employees for all the time spent -7- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 working and/or under the direction and control of the Health Net. This first issue trial will also 2 address Plaintiffs' derivative claims for statutory penalties, derivative claims for civil penalties 3 under the Private Attomeys General Act of 2004, Labor Code sections 2698 et seq. ("PAGA"), and 4 derivative claims for restitution under Business & Professions Code sections 17200, et seq. with 5 respect to the off-the-clock wage claim. 6 Plaintiffs will prove Defendant's liability through Defendant's own policy documents and 7 handbooks, as well as deposition and witness testimony, including Defendant's corporate designees 8 and Plaintiffs' expert who has calculated damages and penalties associated with the miscalculation 9 claim. 10 With respect to damages and penalties, the centtal issue will be determining the amount of 11 relief to which the class and Aggrieved Employees are entitled to. Although it is well-settled that 12 the calculation of monetary relief on a class-wide basis may be determined using innovative 13 techniques and is distinctly manageable by using surveys and/or statistical sampling (see, e.g. 14 Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 27 (2014); Sav-On v. Superior Court, 34 Cal. 4th 15 319, 326-27 (2004)), such innovative techniques and statistical, representative sampling will not be 16 necessary here as Plaintiff already has all the discovery necessary to calculate damages and 17 penalties owed to the entire class, both as an aggregate and on an individual basis. With respect to 18 this issue, which is that Defendant failed to property account and/or record the hours worked by 19 employees for all the time spent working and/or under the direction and control of Health Net, 20 damages will be determined by a mathematical computation of the additional time spent booting 21 up their computers and logging in to record their start times versus the base hourly rates that they 22 were actually paid which can be calculated from Defendant's payroll records, which records the 23 compensation eamed each pay period without taking into account the off-the-clock work. 24 Determining derivative PAGA penahies will be a simple matter of multiplying the number of 25 violations by the penalties set forth in the statute. See Cal. Lab. 26 Code § 2699(f). 27 28 -8- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN ii. Witnesses for Trial 2 Plaintiffs project that they will seek testimony from 6 witnesses (consisting of 2 Plaintiffs, 3 3 Defendant's Persons Most Knowledgeable, several expert witness who will also need to conduct 4 surveys). 5 iii. Exhibits for Trial g. Claims): 6 20-25 exhibits including, but not limited to: 7 • Plaintiffs' wage statements 8 • Exemplar Class Member wage statements 9 • Plaintiffs time punch records for the days worked 10 • Exemplar Class Members time punch records for the days worked • Declarations from Defendant's employees 12 • Deposition transcripts from Defendant's employees and Persons Most 13 Knowledgeable 14 • Payroll records for the Class Members (in electronic format) 15 • Expert Damages Report 16 • The operative consolidated complaint 17 h. Issue 3: Meal Period Premium PAGA Claim: 18 During thetimeperiod of April 5, 2016 to December 31, 2016, Defendant's "Person Most 19 Knowledgeable" testified that Defendant's uniform policy for providing meal period premiums was 20 for all meal period premiums to be paid using the payroll code "DTO". However, the policies 21 provided to all Aggrieved Employees uniformly failed to advise them to use the pay code "DTO" 22 for meal period premiums. This resulted in numerous unpaid meal period premiums. 23 i. Determination of Liability and Penalties as to the Aggrieved Employees 24 The central issue to be determined is whether Defendant violated Califomia law by failing 25 to advise the Aggrieved Employees to use the pay code "DTO" for payment of meal period 26 premiums. 27 As such, Plaintiffs will rely on the testimony from Defendant's PMK witnesses, 28 -9- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 Defendant's own written policies, and a report by PlaintifPs expert analyzing the frequency meal 2 period violations which did not resuh in the payment of a meal period premium. Defendant may 3 then raise any defenses as the employer bears the burden of proving any and all defenses, not 4 Plaintiffs. In Carrington v. Starbucks Corporation, 30 Cal. App. 5th 504 (2018), the court 5 concluded that a PAGA action pertaining to meal break violations for over a hundred thousand 6 aggrieved employees was not over-individualized to render it unmanageable. Carrington, 30 Cal. 7 App. 5th at 526. Here, there are only 2,551 Aggrieved Employees and the primary issue of 8 contention is Defendant's failure to provide a policy and practice for the Aggrieved Employees to 9 record meal period penalties. 10 With respect to the calculation of penalties, Defendant has produced all time and payroll 11 data for all aggrieved employees who did not opt out following issuance of a Belaire-West notice. 12 Utilizing such data in conjunction with Defendant's PMK testimony, PlaintifPs expert formulated 13 a penalties models for affected employees during the PAGA period demonstrating a high volume 14 of missed, late, or shortened meal periods which went unpaid. As such, Plaintiffs will not need to 15 rely on representative statistics or survey evidence. 16 ii. Witnesses for Trial 17 5 witnesses (consisting of 2 Plaintiffs, 2 Defendant's Persons Most Knowledgeable, 1 expert 18 damages/penalties witness) 19 iii. Exhibits for Trial 20 At this time. Plaintiffs anticipate that the vast majority, if not all exhibits, will be documents 21 produced by Defendant in this litigation. In advance of trial. Plaintiffs will provide a list of 22 proposed exhibits to Defendant to determine whether Defendant will agree to stipulate to the 23 authenticity of the proposed exhibits. Plaintiffs anticipate the following number of exhibits for this 24 issue: 25 15 exhibits including, but not limited to: 26 • Plaintiffs' wage statements 27 • Exemplar Class Member wage statements 28 • Defendant's written timekeeping and wage and hour policies and applicable -10- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 amendments 2 • Deposition transcripts from Defendant's Persons Most Knowledgeable 3 • Payroll records for the Class Members (in electronic format) 4 • Time records for the Class Members (in electronic format) 5 • Expert Damages Report 6 • The operative consolidated complaint 7 Plaintiffs reserve the right to modify, add, or remove proposed exhibits. This list is provided 8 as a preliminary list for the Court's consideration. 9 i. Issue 4: EMPCenter Timekeeping System Off the Clock PAGA Claim: 10 During the time period beginning January 1, 2017 to the present. Defendant switched to a 11 new timekeeping system. As a result of the change to the new EMPCenter timekeeping system, 12 Defendant's policies changed accordingly. Defendant submitted a declaration from its Director of 13 Human Resources stating that the previous timekeeping system, PeopleSoft, and the current 14 timekeeping system, EMPCenter, have both always permitted employees to manually enter their 15 start and stop times. However, the policies provide to all Aggrieved Employees uniformly failed to 16 advise them that they could manually enter their start and stop times. This resulted in Aggrieved 17 Employees who were not paid for all hours worked. 18 Similarly, Plaintiff will rely on the testimony from Defendant's PMK, declarations 19 submitted by Defendant, Defendant's own written policies, and a report by Plaintiff's expert 20 analyzing the amount of time and the frequency with which Defendant's policy failed to capture ali 21 hours worked by aggrieved employees. Likewise, Plaintiff will follow the trial model successfully 22 utilized in Carrington, supra at 526. 23 i. Determination of Liability and Penalties as to the Aggrieved Employees 24 The central liability issue to be determined is whether Defendant violated Califomia law by 25 failing to properly account and/or record all the time worked during the time they were under the 26 direction and control of Health Net. This first issue trial will also address Plaintiffs' derivative 27 claims for statutory penalties, derivative claims for civil penalties under the Private Attomeys 28 -11- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 General Act of 2004, Labor Code sections 2698 et seq. ("PAGA"), and derivative claims for 2 restitution under Business & Professions Code sections 17200, et seq. with respect to the regular 3 rate miscalculation claim. 4 Plaintiffs will prove Defendant's liability through Defendant's own policy documents and 5 handbooks, as well as deposition and witness testimony, including Defendant's corporate designees 6 and Plaintiffs' expert who has calculated damages and penalties associated with the miscalculation 7 claim. 8 With respect to damages and penalties, the central issue will be determining the amount of 9 relief to which the class and Aggrieved Employees are entitled to. Although it is well-settled that 10 the calculation of monetary relief on a class-wide basis may be determined using innovative 11 techniques and is distinctly manageable by using surveys and/or statistical sampling (see, e.g. 12 Duran v. U.S. Bank Nat'l Assn., 59 Cal. 4th 1, 27 (2014); Sav-On v. Superior Court, 34 Cal. 4th 13 319, 326-27 (2004)), such innovative techniques and statistical, representative sampling will not be 14 necessary here as Plaintiff already has all the discovery necessary to calculate damages and 15 penalties owed to the entire class, both as an aggregate and on an individual basis. With respect to 16 this issue, which is that Defendant miscalculated the regular rate by failing to include and/or 17 improperly calculate "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA 18 Incentive payments and Wellness Incentive payments, damages will be determined by a 19 mathematical computation of the correct regular rates versus the base hourly rates that employees 20 were paid because an employee's "regular rate can be calculated from Defendant's payroll records, 21 which records all compensation eamed each pay period. Determining derivative PAGA penalties 22 will be a simple matter of multiplying the number of violations by the penalties set forth in the 23 statute. See Cal. Lab. 24 Code § 2699(0. 25 ii. Witnesses for Trial 26 Plaintiffs project that they will seek testimony from 6 witnesses (consisting of 2 Plaintiffs, 27 3 Defendant's Persons Most Knowledgeable, several expert witness who will also need to conduct 28 surveys). - 12- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 iii. Exhibits for Trial 2 At this time. Plaintiffs anticipate that the vast majority, if not all exhibits, will be documents 3 produced by Defendant in this litigation. In advance of trial, Plaintiffs will provide a list of 4 proposed exhibits to Defendant to determine whether Defendant will agree to stipulate to the 5 authenticity of the proposed exhibits. Plaintiffs anticipate the following number of exhibits for this 6 issue: 7 15 exhibits including, but not limited to: 8 • Plaintiffs' wage statements 9 • Exemplar Class Member wage statements 10 • Defendant's written timekeeping and wage and hour policies and applicable 11 amendments 12 • Deposition transcripts from Defendant's Persons Most Knowledgeable 13 • Payroll records for the Class Members (in electronic format) 14 • Time records for the Class Members (in electronic format) 15 • Expert Damages Report 16 • The operative consolidated complaint 17 Plaintiffs reserve the right to modify, add, or remove proposed exhibits. This list is provided 18 as a preliminary list for the Court's consideration. 19 20 IV. PLAINTIFFS' RESPONSES TO SUPPLEMENTAL CASE MANAGEMENT 2j CONFERENCE QUESTIONNAIRE FOR PAGA CASES 22 L If either side is demanding a jury trial does any party contend that there is not a right to jury trial for some of the claims made in this action? 23 As stated above, at this time. Plaintiffs believe that a bench trial is appropriate with respect to 24 the trial on all claims and allegations. 25 2. If so, which ones? 26 As stated above, at this time. Plaintiffs believe that a bench trial is appropriate with respect to 27 the trial on all claims and allegations. 28 3. Does anyone contest the adequacy ofanyplaintifTto be a representative for any of - 13- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 the claims made in this action? 2 The Court has already determined that the named plaintiffs, Andrea Spears and Tomas 3 Arana, are adequate representatives of the class. As such, no further inquiries regarding adequacy 4 are necessary. Additionally, Califomia law does not include an adequacy requirement with respect 5 to PAGA representative actions. Finally, the Court already denied Defendant's Motion as to Why 6 Arana's and Spears's Cases Should Not proceed as PAGA Representative Actions. 7 4. If so, which ones and how do the parties plan to resolve this issue before trial? 8 The Court has already determined that the named plaintiffs, Andrea Spears and Tomas 9 Arana, are adequate representatives of the class. As such, no further inquiries regarding adequacy 10 are necessary. Additionally, Califomia law does not include an adequacy requirement with respect to PAGA representative actions. Finally, the Court already denied Defendant's Motion as to Why 12 Arana's and Spears's Cases Should Not proceed as PAGA Representative Actions. 5. Does anyone contend that any plaintiff did not comply with the requirements 13 necessary to allow him or her to pursue claims on behalf of the Labor Workforce 14 Development Agency (L WD A)? J^ The Plaintiffs have complied with the requirements necessary to allow them to pursue claims on behalf of the LWDA. Additionally, Defendant already had an opportunity to object to 16 Plaintiffs' LWDA letters in Defendant's denied Motion as to Why Arana's and Spears's Cases 17 Should Not proceed as PAGA Representative Actions, but failed to do so. As such, Defendant's 18 failure to assert this defense in the denied Motion as to Why Arana's and Spears's Cases Should 19 Not proceed as PAGA Representative Actions, waives Defendant's right to assert such an objection 20 now. 21 22 6. If so, how the parties plan to resolve this issue before trial? 23 The Plaintiffs have complied with the requirements necessary to allow them to pursue 24 claims on behalf of the LWDA. Additionally, Defendant already had an opportunity to object to 25 Plaintiffs' LWDA letters in Defendant's denied Motion as to Why Arana's and Spears's Cases 26 Should Not proceed as PAGA Representative Actions, but failed to do so. As such. Defendant's 27 failure to assert this defense in the denied Motion as to Why Arana's and Spears's Cases Should 28 Not proceed as PAGA Representative Actions, waives Defendant's right to assert such an objection - 14- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN 1 now. 7. Does anyone contend that plaintiff(s) should be denied representative status for 2 any reason, including manageability or typicality? 3 The Court has already determined that the named plaintiffs, Andrea Spears and Tomas 4 Arana, are adequate representatives of the class. As such, no further inquiries regarding adequacy 5 are necessary. Additionally, Califomia law does not require in a PAGA representative action that 6 any of the elements of class certification be met in order to pursue a PAGA claim, including 1 manageability or typicality. Finally, the Court already denied Defendant's Motion as to Why 8 Arana's and Spears's Cases Should Not proceed as PAGA Representative Actions. As such, ^ Plaintiffs may proceed with the PAGA actions on behalf of the State of Califomia. I^ As stated above, Plaintiffs intend to seek PAGA penalties with respect to two claims aside II from the PAGA penalties derivative of certified claims: (1) that Defendant's uniform policies for 12 providing meal period premiums to the Aggrieved Employees during the time period of April 5, 13 2016 to December 31, 2016 violated Califomia law, and (2) that Defendant's uniform policies 14 failed to capture all hours worked by Aggrieved Employees utilizing the EMPCenter timekeeping system during the time period of January 1, 2017 to present violated Califomia law. 6 Plaintiffs' remaining PAGA claims not derivative of certified claims are discrete in nature 11 and will be based on Defendant's own business records, testimony from Defendant's "Person Most 8 Knowledgeable" designee, and testimony from Plaintiffs' expert witness. 1^ 8. If so, how the parties plan to resolve this issue before trial? 2^ Please see Plaintiffs' response to Question Number 7, above. 21 9. When will the issues listed above be ready to be resolved? 22 Please see Plaintiffs' response to Question Number 7, above. 23 24 25 26 27 28 - 15 - PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN Dated: Januarv 24, 2020 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP By: ^guJU iX 4 APARAJIT BHOWM OWMIKj PIYA MUKHERJEE 5 Attomeys for Plamtiff ANDREA SPEARS 6 7 Dated: January 24, 2020 SETAREH LAW GROUP 8 9 By: SHAUN SETAREH 10 WILLIAM PAO Attomeys for Plaintiff 11 TOMAS R. ARANA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- PLAINTIFFS' TRIAL PRESENTATION AND MANAGEMENT PLAN