Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066)
3 Piya Mukherjee (State Bar #274217) FlLED/ENDORSED
Victoria B. Rivapalacio (State Bar #275115)
4 2255 Calle Clara MAR 1 5 2019
La Jolla, CA 92037
5 Telephone: (858)551-1223
Facsimile: (858) 551-1232 By:, K. Fsv
Dep'jry C'erV;
6
Attorneys for Plaintiff
7
8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9
IN AND FOR THE COUNTY OF SACRAMENTO
10
11 ANDREA SPEARS, an individual, on behalf Consolidated Case No.
of herself and on behalf of all persons 34-2017-00210560-CU-OE-GDS
12 similarly situated,
13
Plaintiff, NOTICE OF DEFENDANT'S
14 NON-COMPLIANCE REGARDING
vs. STIPULATION FOR CLASS
15 CERTIFICATION
HEALTH NET OF CALIFORNIA, INC., a
16 California Corporation; and Does 1 through
50, Inclusive, Date: April 11,2019
17 Time: 10:00 a.m.
Defendants. Dept: 35
18 Judge: Hon. Alan G. Perkins
19 TOMAS R. ARANA, on behalf of himself, Original Complaint Filed: April 5, 2017
all others similarly situated, FAC Filed: June 29, 2017
20 Consolidated Complaint Filed: Dec. 21, 2017
Plaintiff,
21
vs.
22
HEALTH NET OF CALIFORNIA, INC., a
23 California corporation; and DOES 1 through
50, inclusive.
24
25 Defendants.
26
27
28
NOTICE OF DEFENDANT'S NON-COMPLIANCE
Case No. 34-2017-00210560-CU-OE-GDS
1 NOTICE OF DEFENDANT'S NON-COMPLIANCE
2 On November 19,2018, Defendant Health Net of Califomia, Inc. ("HNCA") filed and served
3 a Renewed Motion for Summary Adjudication ("Renewed MSA"). The Renewed MSA sought
4 summary adjudication of Plaintiffs Spears and Arana's (collectively "Plaintiffs") claims that HNCA
5 improperly calculated Plaintiffs' overtime pay by failing to include in their regular rate of pay cash in
6 lieu of benefit pay coded as "MedFlxWave" and "DenFlxWave" payments and Wellness Incentive
7 Payments paid to Plaintiff Arana. Defendant Health Net of California, Inc. ("Defendant") set the motion
8 for the hearing on the Renewed MSJ for February 4, 2019.
9 The class certification motion filing deadline was set for December 14, 2018. Plaintiff Spears
10 filed a motion to continue the class certification deadline so that the class certification briefing would
11 occur after the Renewed MSJ was decided. The motion was brought on the grounds that the outcome
12 of the Renewed MSJ would dictate which claims Plaintiff would seek to certify and inform the ways
13 in which certain claims would raise predominant common questions of fact and law. (See Motion to
14 Continue. Exhibit 1 to Bhowmik Declaration,filedherewith).
15 Defendant opposed the motion to continue, arguing that the issue raised in the Renewed MSJ-
16 "that HNCA failed to calculate Spears' overtime correctly because HNCA failed to include the cash
17 benefit paid to her in her regular rate — is a pay practices claim." (Opposition to Motion to Continue,
18 Exhibit 2). Defendant argued that a continuance of the class certification deadline was not needed
19 because "HNCA will stipulate that, in the event the Court (Judge Krueger) denies its Renewed MSA,
20 this issue can be certified for class treatment pursuant to Code of Civil Procedure 382." Id.
21 The Court heard the motion on December 14,2018 and agreed that with a broad stipulation by
22 the Defendant to agree to certification of all the claims addressed in the Renewed MSJ that this
23 agreement would obviate Plaintiffs need to continue the class certification motion filing deadline.
24 Defendant reaffirmed this agreement at the hearing, stating:
25 To be clear, if the motion for summary adjudication is denied in whole or in part, we
will stipulate that such claim can move forward on a certified basis. There's no concern
26 here whatsoever.... 1 think it's pretty clear if I'm willing to stipulate to certification such
that they don't have to brief it at all, and that's their only complaint for pushing the
27 dates, I'm just at a loss as to perhaps why we're here.
28 (Hearing Transcript, Exhibit 3 at 9:12-26).
' NOTICE OF DEFENDANT'S NON-COMPLIANCE
1 Case No. 34-2017-00210560-CU-OE-GDS
1 Following a hearing on the Renewed MSA, Judge Krueger took the motion under submission
2 and then on Febraary 26, 2019, Judge Krueger issued a Minute Order denying Defendant's Renewed
3 MSA.
4 On Febraary 28, 2019, Plaintiff sent Defendant a stipulation for class certification. (E-mail
5 chain. Exhibit 4: Stipulation, Exhibit 5). Defendant then waited until March 7, 2019 to respond by
6 promising to provide a response "early next" week which would have been by Tuesday, March 12,
7 2019. (Email chain, Exhibit 4). The response, however, never came and Defendant continues to ignore
8 Plaintiffs request. For this reason, Plaintiff is filing this notice of non-compliance to alert the Court
9 to Defendant's delay and failure to stipulate to class certification as agreed. The deadline to file a reply
10 in support of class certification is March 15, 2019. Therefore, Plaintiff is filing this statement on the
11 last possible day to properly brief this issue within the confines of the class certification briefing
12 schedule so that Defendant's reneging on the class certification agreement can be addressed by the
13 Court at the class certification hearing.
14 Plaintiffs request is that if the Defendant has not filed a stipulation by that time, the Court
15 provide Plaintiff with a class certification hearing date for those issues raised in the Renewed MSJ that
16 Defendant agreed to stipulate for certification.
17 Respectfully submitted,
18
19 DATED: March 14, 2019 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
20
21 By:_
A:J. Bhowmik
22 Attomeys for Plaintiff
23
24
25
26
27
28
NOTICE OF DEFENDANT'S NON-COMPLIANCE
2 Case No. 34-2017-00210560-CU-OE-GDS
PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
3 1, AJ Bhowmik, am employed in the County of San Diego, State of Califomia. 1 am over the
age of 18 and not a party to the within action. My business address is 2255 Calle Clara, La Jolla,
4 Califomia 92037.
5 On March 14, 2019,1 served the document(s) described as:
6
L NOTICE OF DEFENDANT'S NON-COMPLIANCE REGARDfNG STIPULATION
7 FOR CLASS CERTIFICATION
2. DECLARATION OF APARAJIT BHOWMIK IN SUPPORT OF NOTICE OF
8 DEFENDANT'S NON-COMPLIANCE REGARDING STIPULATION FOR CLASS
CERTIFICATION
9
10 X (FEDERAL EXPRESS): 1 caused the above-described document to be delivered via ovemight
delivery (Federal Express), by placing a copy in a separate FEDERAL EXPRESS mailer and
11 attaching a completed Federal Express air bill, with Standard Ovemight delivery/Priority
Delivery requested, and caused said mailer to deposited in the Federal Express collection box
12 at San Diego, Califomia.
13 Timothy J. Long SETAREH LAW GROUP
ORRICK, HERRINGTON & SUTCLIFFE LLP Shaun Setareh
14' 400 Capitol Mall, Suite 3000 H. Scott Leviant
Sacramento, CA 95814-4497 9454 Wilshire Boulevard, Suite 907
15 Telephone: (916) 447-9200 Beverly Hills, CA 90212
Facsimile: (916) 329-4900 Telephone: (310) 888-7771
16 Email: tjlong@orrick.com Facsimile: (310) 888-0109
Email: shaun@setarehlaw.com
17 VIA EMAIL SERVICE ONLY
18
19
X (State): I declare under penalty of perjury under the laws of the State of California that the
20 above is true and correct.
21 Executed on March 14, 2019, at La Jolla, Califomia.
22
23
UIT BHOWMIK
24
25
26
27
28
NOTICE OF DEFENDANT'S NON-COMPLIANCE
3 Case No. 34-2017-00210560-CU-OE-GDS
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) 3 Piya Mukherjee (State Bar #274217) FlLED/ENDORSED Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara MAR 1 5 2019 La Jolla, CA 92037 5 Telephone: (858)551-1223 Facsimile: (858) 551-1232 By:, K. Fsv Dep'jry C'erV; 6 Attorneys for Plaintiff 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. of herself and on behalf of all persons 34-2017-00210560-CU-OE-GDS 12 similarly situated, 13 Plaintiff, NOTICE OF DEFENDANT'S 14 NON-COMPLIANCE REGARDING vs. STIPULATION FOR CLASS 15 CERTIFICATION HEALTH NET OF CALIFORNIA, INC., a 16 California Corporation; and Does 1 through 50, Inclusive, Date: April 11,2019 17 Time: 10:00 a.m. Defendants. Dept: 35 18 Judge: Hon. Alan G. Perkins 19 TOMAS R. ARANA, on behalf of himself, Original Complaint Filed: April 5, 2017 all others similarly situated, FAC Filed: June 29, 2017 20 Consolidated Complaint Filed: Dec. 21, 2017 Plaintiff, 21 vs. 22 HEALTH NET OF CALIFORNIA, INC., a 23 California corporation; and DOES 1 through 50, inclusive. 24 25 Defendants. 26 27 28 NOTICE OF DEFENDANT'S NON-COMPLIANCE Case No. 34-2017-00210560-CU-OE-GDS 1 NOTICE OF DEFENDANT'S NON-COMPLIANCE 2 On November 19,2018, Defendant Health Net of Califomia, Inc. ("HNCA") filed and served 3 a Renewed Motion for Summary Adjudication ("Renewed MSA"). The Renewed MSA sought 4 summary adjudication of Plaintiffs Spears and Arana's (collectively "Plaintiffs") claims that HNCA 5 improperly calculated Plaintiffs' overtime pay by failing to include in their regular rate of pay cash in 6 lieu of benefit pay coded as "MedFlxWave" and "DenFlxWave" payments and Wellness Incentive 7 Payments paid to Plaintiff Arana. Defendant Health Net of California, Inc. ("Defendant") set the motion 8 for the hearing on the Renewed MSJ for February 4, 2019. 9 The class certification motion filing deadline was set for December 14, 2018. Plaintiff Spears 10 filed a motion to continue the class certification deadline so that the class certification briefing would 11 occur after the Renewed MSJ was decided. The motion was brought on the grounds that the outcome 12 of the Renewed MSJ would dictate which claims Plaintiff would seek to certify and inform the ways 13 in which certain claims would raise predominant common questions of fact and law. (See Motion to 14 Continue. Exhibit 1 to Bhowmik Declaration,filedherewith). 15 Defendant opposed the motion to continue, arguing that the issue raised in the Renewed MSJ- 16 "that HNCA failed to calculate Spears' overtime correctly because HNCA failed to include the cash 17 benefit paid to her in her regular rate — is a pay practices claim." (Opposition to Motion to Continue, 18 Exhibit 2). Defendant argued that a continuance of the class certification deadline was not needed 19 because "HNCA will stipulate that, in the event the Court (Judge Krueger) denies its Renewed MSA, 20 this issue can be certified for class treatment pursuant to Code of Civil Procedure 382." Id. 21 The Court heard the motion on December 14,2018 and agreed that with a broad stipulation by 22 the Defendant to agree to certification of all the claims addressed in the Renewed MSJ that this 23 agreement would obviate Plaintiffs need to continue the class certification motion filing deadline. 24 Defendant reaffirmed this agreement at the hearing, stating: 25 To be clear, if the motion for summary adjudication is denied in whole or in part, we will stipulate that such claim can move forward on a certified basis. There's no concern 26 here whatsoever.... 1 think it's pretty clear if I'm willing to stipulate to certification such that they don't have to brief it at all, and that's their only complaint for pushing the 27 dates, I'm just at a loss as to perhaps why we're here. 28 (Hearing Transcript, Exhibit 3 at 9:12-26). ' NOTICE OF DEFENDANT'S NON-COMPLIANCE 1 Case No. 34-2017-00210560-CU-OE-GDS 1 Following a hearing on the Renewed MSA, Judge Krueger took the motion under submission 2 and then on Febraary 26, 2019, Judge Krueger issued a Minute Order denying Defendant's Renewed 3 MSA. 4 On Febraary 28, 2019, Plaintiff sent Defendant a stipulation for class certification. (E-mail 5 chain. Exhibit 4: Stipulation, Exhibit 5). Defendant then waited until March 7, 2019 to respond by 6 promising to provide a response "early next" week which would have been by Tuesday, March 12, 7 2019. (Email chain, Exhibit 4). The response, however, never came and Defendant continues to ignore 8 Plaintiffs request. For this reason, Plaintiff is filing this notice of non-compliance to alert the Court 9 to Defendant's delay and failure to stipulate to class certification as agreed. The deadline to file a reply 10 in support of class certification is March 15, 2019. Therefore, Plaintiff is filing this statement on the 11 last possible day to properly brief this issue within the confines of the class certification briefing 12 schedule so that Defendant's reneging on the class certification agreement can be addressed by the 13 Court at the class certification hearing. 14 Plaintiffs request is that if the Defendant has not filed a stipulation by that time, the Court 15 provide Plaintiff with a class certification hearing date for those issues raised in the Renewed MSJ that 16 Defendant agreed to stipulate for certification. 17 Respectfully submitted, 18 19 DATED: March 14, 2019 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 20 21 By:_ A:J. Bhowmik 22 Attomeys for Plaintiff 23 24 25 26 27 28 NOTICE OF DEFENDANT'S NON-COMPLIANCE 2 Case No. 34-2017-00210560-CU-OE-GDS PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN DIEGO 3 1, AJ Bhowmik, am employed in the County of San Diego, State of Califomia. 1 am over the age of 18 and not a party to the within action. My business address is 2255 Calle Clara, La Jolla, 4 Califomia 92037. 5 On March 14, 2019,1 served the document(s) described as: 6 L NOTICE OF DEFENDANT'S NON-COMPLIANCE REGARDfNG STIPULATION 7 FOR CLASS CERTIFICATION 2. DECLARATION OF APARAJIT BHOWMIK IN SUPPORT OF NOTICE OF 8 DEFENDANT'S NON-COMPLIANCE REGARDING STIPULATION FOR CLASS CERTIFICATION 9 10 X (FEDERAL EXPRESS): 1 caused the above-described document to be delivered via ovemight delivery (Federal Express), by placing a copy in a separate FEDERAL EXPRESS mailer and 11 attaching a completed Federal Express air bill, with Standard Ovemight delivery/Priority Delivery requested, and caused said mailer to deposited in the Federal Express collection box 12 at San Diego, Califomia. 13 Timothy J. Long SETAREH LAW GROUP ORRICK, HERRINGTON & SUTCLIFFE LLP Shaun Setareh 14' 400 Capitol Mall, Suite 3000 H. Scott Leviant Sacramento, CA 95814-4497 9454 Wilshire Boulevard, Suite 907 15 Telephone: (916) 447-9200 Beverly Hills, CA 90212 Facsimile: (916) 329-4900 Telephone: (310) 888-7771 16 Email: tjlong@orrick.com Facsimile: (310) 888-0109 Email: shaun@setarehlaw.com 17 VIA EMAIL SERVICE ONLY 18 19 X (State): I declare under penalty of perjury under the laws of the State of California that the 20 above is true and correct. 21 Executed on March 14, 2019, at La Jolla, Califomia. 22 23 UIT BHOWMIK 24 25 26 27 28 NOTICE OF DEFENDANT'S NON-COMPLIANCE 3 Case No. 34-2017-00210560-CU-OE-GDS