Preview
1 Timotiiy J. Long (SBN 137591)
Samuel S. Hyde (SBN 327065)
2 GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100
3 Sacramento, CA 95814
Telephone: 916.442.1111
4 Facsimile: 916.448.1709
longt@gtlaw.com
5
Rowena Santos (SBN 210185)
6 GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500 t
7 Irvine, CA 92612 I
Telephone: 949.732.6500
8 Facsimile: 949.732.6501
9 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS(Consolidated witii Case No.
14 similarly situated. 34-2017-00216685-CU-OE-GDS)
Plaintiff,
15
NOTICE OF MOTION AND MOTION
16 TO STRIKE SPEARS'
HEALTH NET OF CALIFORNIA, m C , a REPRESENTATIVE PAGA CLAIMS
17 Califomia Corporation; and Does 1 through Date: April 3, 2020
50, inclusive, Time: 1:30 p.m.
18 Dept: 41
Defendants. Judge: Hon. David De Alba
19
Complaint Filed: April 5, 2017
20 FAC Filed: June 29,2017
21
TOMAS R. ARANA, on behalf of himself, all
others similarly situated, Complaint Filed: August 1,2017
22 Consolidated Complaint Filed: Dec. 21, 2017
23 Plamtiff,
24 v.
25 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1-50,
26 inclusive.
27 Defendant.
28
NOTICE OF MOTION AND MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS
1 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE tiiat on April 3,2020, at 1:30 p.m. or as soontiiereafteras may
3 be heard in Department 41 ofthe Superior Court ofthe State of California, County of
4 Sacramento, Defendant Health Net of Califomia, Inc. ("HNCA") will and hereby does move the
5 court for an order striking Plaintiff Andrea Spears' ("Spears") representative claims under the
6 Private Attomeys' General Act (tiie "PAGA").
7 In her Written Notice to the Labor and Workforce Development Agency (the "LWDA"),
8 Spears sought PAGA penalties for the following three claims: (1) failure to include "non-
9 discretionary incentive" payments such as "health benefits cash out options" in her regular rate of
10 pay; (2) failure to provide employees with on-time meal periods, as well as failure to provide
11 employees with second meal periods when required; and (3) failure to timely provide employees
12 with ten-minute rest periods.' Based on these claims. Spears also asserted derivative claims for
13 (1) failure to provide employees with accurate wage statements; and (2) failure totimelypay
14 employees for all wages due following termination. Although Spears and her co-Plaintiff Tomas
15 Arana ("Arana") have attempted to re-craft these claims in their trial plan, all of Spears' PAGA
16 claims must be stricken for the reasons set forth in the Memorandum of Points and Authorities in
17 Support of this Motion.
18 I. Spears' Miscalculation Claim Must Be Stricken Because She Did Not Exhaust, and It
19 Will Be Unmanageable
20 Spears' fu-st PAGA claim, allegmg a regularrateviolation, now takes the form of the
21 "Miscalculation Claun" in the trial plan, which contends that HNCA miscalculated the regular
22 rate of pay by failing to include "MedFlxWave" payments, "DenFlxWave" payments, SPOT
23 Awards, ACA Incentive Payments, and Wellness Incentive Payments in the regular rate. None of
24 these payments, however, were mentioned in Spears' LWDA Notice. That Notice presented an
25. entirely different theory of liability, because of which the current iteration of Spears' PAGA
26 claim has never been exhausted. Moreover, trial of the Miscalculation Claim would present
27
28 ' Notably, Spears' LWDA Notice included no allegation that she or any other allegedly aggrieved employee
performed work off the clock.
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NOTICE OF MOTION AND MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS
1 serious manageability challenges for the Court. The Court should accordingly strike this claim.
2 II. Spears' Meal Period PAGA Claim Should Be Stricken Under The Doctrine Of
3 Judicial Estoppel, For Failure To Exhaust, And Because It Will Be Unmanageable
4 Second, the trial plan alleges a "Meal Period PAGA Claim," which corresponds with
5 Spears' meal period claim. Spears contends that HNCA failed to advise its employees to use the
6 "DTO" payroll code, "result[ing] in numerous unpaid meal period claims." But such a theory
7 appears nowhere in Spears' LWDA Notice, and is in fact contrary to the meal period theory
8 Spears has asserted throughout this litigation. As a result, the Court should strike Spears' meal
9 period claim, both under the doctrine ofjudicial estoppel and for failure to exhaust. Spears' meal
10 period claim is deficient for a third reason, namely that it cannot be proven uniformly as to all
11 allegedly aggrieved employees. It therefore poses insurmountable manageability problems. For
12 all these reasons. Spears' meal period PAGA claim must be stricken.
13 in. Spears' Rest Period PAGA Claim Has Been Withdrawn and Should Be Stricken
14 The trial plan contains no discussion of Spears' rest period PAGA claim. Spears has
15 evidently abandoned it. Because that claim has been effectively vwthdrawn and is no longer at
16 issue, the Court should stirike it as well.
17 IV. Spears' Remaining PAGA Claims Are All Derivative, and Should Be Stricken As
18 Well
19 Finally, because Spears' remaining PAGA claims are purely derivative, the Court should
20 strike those as well.
21 The Motion to Strike Spears' Representative PAGA Claims is based on this Notice of
22 Motion and Motion; the accompanying Memorandum of Points and Authorities in support of the
23 Motion; the Motion as to Why Spears' Case Should Not Proceed as a PAGA Representative
24 Action and its accompanying Memorandum of Points and Authorities, which are incorporated
25 herein by reference pursuant to the Court's prior order; the Declaration of Timothy J. Long and
26 all attachments thereto; as well as the pleadings, records andfilesin this case, and upon any
27 fiuther oral and documentary evidence that may be presented at or before hearing on this matter.
28
MEMORANDUM OF POINTS AND AUTHORITIES ISO
MOTION TO STRIKE ARANA'S REPRESENTATIVE PAGA CLAIMS
1 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits
2 of this matter by 2:00 p.m., the court day before the hearing. The complete text of the
3 tentative rulings for the department may be downloaded off the court's website. If the
4 party does not have online access, they may call the dedicated phone number for the
5 department as referenced in the local telephone directory between the hours of 2:00 p.m.
6 and 4:00 p.m. on the court day before the hearing and receive the tentative ruling. If you do
7 not call the court and the opposing party by 4:00 p.m. the court day before the hearing, no
8 hearing wiU be held.
9
10
Dated: March 6, 2020 GREENBERG TRAURIG, LLP
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14
15 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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MEMORANDUM OF POINTS AND AUTHORITIES ISO
MOTION TO STRIKE ARANA'S REPRESENTATIVE PAGA CLAIMS
1 Andrea Spears, et al. vs. Health Net of California, Inc.
Sacramento County Superior Court Case No. 34-2017-00210560
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am employed in the County of Sacramento, State of Califomia and my
business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814.
5
On this day, I caused to be served the following document(s):
6
NOTICE OF MOTION AND MOTION TO STRIKE SPEARS' REPRESENTATIVE
7 PAGA CLAIMS
8 By placing the original ^ a tme copy into sealed envelopes addressed and served as
follows:
9
Norman Blumenthal
10 Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears
Piya Mukherjee
11 Victoria B. Rivapalacio
BLUMENTHAL, NORDREHAUG &
12 BHOWMIK LLP
2255 Calle Clara
13 La Jolla, CA 92037
Email: norm(^bamlawca.com
14 Telephone: (858) 551-1223
Facsimile: (858) 551-1232
15
Shaun Setareh
16 William Pao Attorneys for Plaintiff Tomas R. Arana
Alex Mcintosh
17 SETAREH LAW GROUP
315 S. Beverly Drive, Suite 315
18 Beveriy Hills, CA 90212
Email: shaun(a),setarehlaw.com
19 william(2),setarehlaw.com
alex(a),setarehlaw.com
20 Telephone: (310)888-7771
Facsimile: (310) 888-0109
21
BY OVERNIGHT COURIER: I caused such envelope to be placed for collection and
22 delivery
in accordance with standard ovemight delivery procedures for delivery the next business
23 day.
I declare under penalty of perjury under the laws ofthe State of Califomia that the
24 foregoing is tme and correct.
25 Executed on March 6,2020, at Sacramento, Califomii
26
arlene Celis
27
28
-5
MEMORANDUM OF POINTS AND AUTHORITIES ISO
MOTION TO STRIKE ARANA'S REPRESENTATIVE PAGA CLAIMS
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1 Timotiiy J. Long (SBN 137591) Samuel S. Hyde (SBN 327065) 2 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 3 Sacramento, CA 95814 Telephone: 916.442.1111 4 Facsimile: 916.448.1709 longt@gtlaw.com 5 Rowena Santos (SBN 210185) 6 GREENBERG TRAURIG, LLP 18565 Jamboree Road, Suite 500 t 7 Irvine, CA 92612 I Telephone: 949.732.6500 8 Facsimile: 949.732.6501 9 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS(Consolidated witii Case No. 14 similarly situated. 34-2017-00216685-CU-OE-GDS) Plaintiff, 15 NOTICE OF MOTION AND MOTION 16 TO STRIKE SPEARS' HEALTH NET OF CALIFORNIA, m C , a REPRESENTATIVE PAGA CLAIMS 17 Califomia Corporation; and Does 1 through Date: April 3, 2020 50, inclusive, Time: 1:30 p.m. 18 Dept: 41 Defendants. Judge: Hon. David De Alba 19 Complaint Filed: April 5, 2017 20 FAC Filed: June 29,2017 21 TOMAS R. ARANA, on behalf of himself, all others similarly situated, Complaint Filed: August 1,2017 22 Consolidated Complaint Filed: Dec. 21, 2017 23 Plamtiff, 24 v. 25 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1-50, 26 inclusive. 27 Defendant. 28 NOTICE OF MOTION AND MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS 1 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE tiiat on April 3,2020, at 1:30 p.m. or as soontiiereafteras may 3 be heard in Department 41 ofthe Superior Court ofthe State of California, County of 4 Sacramento, Defendant Health Net of Califomia, Inc. ("HNCA") will and hereby does move the 5 court for an order striking Plaintiff Andrea Spears' ("Spears") representative claims under the 6 Private Attomeys' General Act (tiie "PAGA"). 7 In her Written Notice to the Labor and Workforce Development Agency (the "LWDA"), 8 Spears sought PAGA penalties for the following three claims: (1) failure to include "non- 9 discretionary incentive" payments such as "health benefits cash out options" in her regular rate of 10 pay; (2) failure to provide employees with on-time meal periods, as well as failure to provide 11 employees with second meal periods when required; and (3) failure to timely provide employees 12 with ten-minute rest periods.' Based on these claims. Spears also asserted derivative claims for 13 (1) failure to provide employees with accurate wage statements; and (2) failure totimelypay 14 employees for all wages due following termination. Although Spears and her co-Plaintiff Tomas 15 Arana ("Arana") have attempted to re-craft these claims in their trial plan, all of Spears' PAGA 16 claims must be stricken for the reasons set forth in the Memorandum of Points and Authorities in 17 Support of this Motion. 18 I. Spears' Miscalculation Claim Must Be Stricken Because She Did Not Exhaust, and It 19 Will Be Unmanageable 20 Spears' fu-st PAGA claim, allegmg a regularrateviolation, now takes the form of the 21 "Miscalculation Claun" in the trial plan, which contends that HNCA miscalculated the regular 22 rate of pay by failing to include "MedFlxWave" payments, "DenFlxWave" payments, SPOT 23 Awards, ACA Incentive Payments, and Wellness Incentive Payments in the regular rate. None of 24 these payments, however, were mentioned in Spears' LWDA Notice. That Notice presented an 25. entirely different theory of liability, because of which the current iteration of Spears' PAGA 26 claim has never been exhausted. Moreover, trial of the Miscalculation Claim would present 27 28 ' Notably, Spears' LWDA Notice included no allegation that she or any other allegedly aggrieved employee performed work off the clock. -2- NOTICE OF MOTION AND MOTION TO STRIKE SPEARS' REPRESENTATIVE PAGA CLAIMS 1 serious manageability challenges for the Court. The Court should accordingly strike this claim. 2 II. Spears' Meal Period PAGA Claim Should Be Stricken Under The Doctrine Of 3 Judicial Estoppel, For Failure To Exhaust, And Because It Will Be Unmanageable 4 Second, the trial plan alleges a "Meal Period PAGA Claim," which corresponds with 5 Spears' meal period claim. Spears contends that HNCA failed to advise its employees to use the 6 "DTO" payroll code, "result[ing] in numerous unpaid meal period claims." But such a theory 7 appears nowhere in Spears' LWDA Notice, and is in fact contrary to the meal period theory 8 Spears has asserted throughout this litigation. As a result, the Court should strike Spears' meal 9 period claim, both under the doctrine ofjudicial estoppel and for failure to exhaust. Spears' meal 10 period claim is deficient for a third reason, namely that it cannot be proven uniformly as to all 11 allegedly aggrieved employees. It therefore poses insurmountable manageability problems. For 12 all these reasons. Spears' meal period PAGA claim must be stricken. 13 in. Spears' Rest Period PAGA Claim Has Been Withdrawn and Should Be Stricken 14 The trial plan contains no discussion of Spears' rest period PAGA claim. Spears has 15 evidently abandoned it. Because that claim has been effectively vwthdrawn and is no longer at 16 issue, the Court should stirike it as well. 17 IV. Spears' Remaining PAGA Claims Are All Derivative, and Should Be Stricken As 18 Well 19 Finally, because Spears' remaining PAGA claims are purely derivative, the Court should 20 strike those as well. 21 The Motion to Strike Spears' Representative PAGA Claims is based on this Notice of 22 Motion and Motion; the accompanying Memorandum of Points and Authorities in support of the 23 Motion; the Motion as to Why Spears' Case Should Not Proceed as a PAGA Representative 24 Action and its accompanying Memorandum of Points and Authorities, which are incorporated 25 herein by reference pursuant to the Court's prior order; the Declaration of Timothy J. Long and 26 all attachments thereto; as well as the pleadings, records andfilesin this case, and upon any 27 fiuther oral and documentary evidence that may be presented at or before hearing on this matter. 28 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO STRIKE ARANA'S REPRESENTATIVE PAGA CLAIMS 1 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits 2 of this matter by 2:00 p.m., the court day before the hearing. The complete text of the 3 tentative rulings for the department may be downloaded off the court's website. If the 4 party does not have online access, they may call the dedicated phone number for the 5 department as referenced in the local telephone directory between the hours of 2:00 p.m. 6 and 4:00 p.m. on the court day before the hearing and receive the tentative ruling. If you do 7 not call the court and the opposing party by 4:00 p.m. the court day before the hearing, no 8 hearing wiU be held. 9 10 Dated: March 6, 2020 GREENBERG TRAURIG, LLP 11 12 13 14 15 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO STRIKE ARANA'S REPRESENTATIVE PAGA CLAIMS 1 Andrea Spears, et al. vs. Health Net of California, Inc. Sacramento County Superior Court Case No. 34-2017-00210560 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am employed in the County of Sacramento, State of Califomia and my business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814. 5 On this day, I caused to be served the following document(s): 6 NOTICE OF MOTION AND MOTION TO STRIKE SPEARS' REPRESENTATIVE 7 PAGA CLAIMS 8 By placing the original ^ a tme copy into sealed envelopes addressed and served as follows: 9 Norman Blumenthal 10 Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears Piya Mukherjee 11 Victoria B. Rivapalacio BLUMENTHAL, NORDREHAUG & 12 BHOWMIK LLP 2255 Calle Clara 13 La Jolla, CA 92037 Email: norm(^bamlawca.com 14 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 15 Shaun Setareh 16 William Pao Attorneys for Plaintiff Tomas R. Arana Alex Mcintosh 17 SETAREH LAW GROUP 315 S. Beverly Drive, Suite 315 18 Beveriy Hills, CA 90212 Email: shaun(a),setarehlaw.com 19 william(2),setarehlaw.com alex(a),setarehlaw.com 20 Telephone: (310)888-7771 Facsimile: (310) 888-0109 21 BY OVERNIGHT COURIER: I caused such envelope to be placed for collection and 22 delivery in accordance with standard ovemight delivery procedures for delivery the next business 23 day. I declare under penalty of perjury under the laws ofthe State of Califomia that the 24 foregoing is tme and correct. 25 Executed on March 6,2020, at Sacramento, Califomii 26 arlene Celis 27 28 -5 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION TO STRIKE ARANA'S REPRESENTATIVE PAGA CLAIMS