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1 TIMOTHY J. LONG (STATE BAR NO. 137591) EKDORSEO
tjlong@onick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP 20ieFEB28 PH 3=51
400 Capitol Mall, Suite 3000
X 3 Sacramento, CA 95814-4497 SUFERiOR courtT Or CAl.lf CRNiA
Telephone: +1 916 447 8299 COUNTY OFSACKAilEHiO
D Facsimile: +1 916 329 4900
> 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee(^omck.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
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 similarly CU-OE-GDS
14 situated.
Plaintiff, MEMORANDUM OF POINTS AND
15 AUTHORITIES IN SUPPORT OF
DEFENDANT HEALTH NET OF
16 CALIFORNIA, INC.'S MOTION FOR
HEALTH NET OF CALIFORNIA, INC., a MONETARY SANCTIONS
17 Califomia Corporation; and Does 1 through 50,
inclusive. Date: March 27,2018
18 Time: 9:00 a.m.
Dept: 54
Defendants.
19
Complaint Filed: April 5,2017
20 FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
21
TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017
22 others similarly situated.
23 Plaintiff
24 V.
25 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 -50,
26 inclusive,
27 Defendant.
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 TABLE OF CONTENTS
2 Page
3 I. INTRODUCTION 1
4 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2
A. Plaintiffs And Their Claims Against Health Net 2
5 B. Plaintiffs' Written Discovery, Health Net's Responses, And Needless
6 Disputes 3
1. Plaintiff Spears Filed A Needless Motion For A Belaire- West
7 Notice: Health Net Had Already Agreed To Provide Such A Notice
And Had Been The Party To Propose It 4
8 2. Plaintiff Spears Filed Two Unnecessary Motions To Compel,
Which She Later Withdrew 6
9 3. Plaintiff Spears Filed A Second Set Of Unnecessary Motions To
10 Compel 8
III. ARGUMENT 9
A. The Court Has Broad Discretion To Grant Sanctions For Abuse Of The
12 Discovery Process 9
j2 B. Plaintiff Spears' Counsel Has Repeatedly Abused The Discovery Process
Warranting Imposition Of Monetary Sanctions 10
14 1. Plaintiff Spears Did Not Meet And Confer Before Filing Her
Belaire- West Motion 10
^^ 2. Plaintiff Spears Did Not Meet And Confer Before Filing Her First
Ig Set Of Motions To Compel, Which She Later Withdrew 11
3. Plaintiff Spears Did Not Meet And Confer Before Filing The
17 Second Set of Motions To Compel, Which She Also Withdrew 12
C. Because Of Plaintiff Spears' Counsel's Gamesmanship, Health Net Has
18
Needlessly Had To Oppose Five Discovery Motions 13
19 D. Health Net Is Entitied To Sanctions 14
20 IV. CONCLUSION 14
21
22
23
24
25
26
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MEMORANDUM OF POI"NTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 TABLE OF AUTHORITIES
2 Page(s)
3 Cases
4
Clement v. Alegre,
5 177 Cal. App. 4tii 1277 (2009) 10
6 Karlsson v. Ford Motor Co.
140 Cal. App. 4th 1202 (2006) 10
7 Leko V. Cornerstone Building Inspection Serv.,
86 Cal.App. 4th 1109 (2001) 10
8
9 Obregon v. Superior Court,
jQ 67 Cal. App. 4th 424 (1998) 11, 12, 13
11 Townsend v. Superior Court,
61 Cal. App. 4th 1431 (1998) 10, 11
12
Statutes
13
Civ. Proc. Code § 2016,040 10. 11
14
Civ. Proc. Code §§ 2023.010(h)-(i) 10
15
Civ. Proc. Code § 2023.030(a) 9
16
J7 Civil Discovery Act of 1986 10
18
19
20
21
22
23
24
25
26
27
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MEMORANDUM OF POINTS AND AU rHORITlES IN SUPPORT OF DEFENDANT'S MOTION FOR"
MONETARY SANCTIONS
1 I. INTRODUCTION
2 Defendant Health Net of California, Inc. ("Health Net") appreciates that the Court would
3 rather not have to deal with a sanctions motion. Health Net does not like being in this position,
4 either. But the discovery process in this case has spun out of control due to the behavior of
5 counsel for Plaintiff Andrea Spears, and a message needs to be sent to them: stop filing needless
6 motions.
7 From the outset of this case. Health Net has tried to work with opposing counsel to
8 organize and stmcture the litigation of this lawsuit in an orderly fashion. This has included
9 working with Plaintiff Tomas Arana's counsel to transfer Plaintiff Arana's case to Sacramento;
10 then suggesting that PlaintifF Arana's lawsuit and Plaintiff Spears' lawsuit be consolidated given
11 that the cases overlap, which after court intervention, occurred late last year; and trying to meet
12 and confer to organize discovery in a manner that permits the parties to litigate this case
13 efficiently without wasting judicial and party resources.
14 While counsel for Plaintiff Arana has had no concems that have prompted them lofileany
15 discovery motions, counsel for PlaintifF Spears seems to have a penchant for tuming discovery
16 disputes into baseless accusations and unnecessary morions. While it is well established that civil
17 discovery should be essentially self-executing, Plaintiff Spears' attomeys have engaged in an
18 extraordinary and well-documented abuse of the discovery process, including repeated failures to
19 meet and confer prior lo filing five urmecessary discovery motions. None were brought with
20 substantial justification, and all could have been resolved through meet and confer. Plaintiff
21 Spears has conceded as much because she withdrew four of these discovery motions - after
22 Health Net was forced to oppose them. She lost the other motion.
23 It has become abundanUy clear that Plaintiff Spears' counsel are engaging in conduct that
24 is designed to escalate Health Net's litigation costs needlessly. Indeed, Plaintiff Spearsfiledher
25 latest discover}' motions without having made any attempt to meet and confer with Health Net.
26 When Health Net requested that Plaintiff Spears' lawyers withdraw these motions, pointing out
27 that another motion pending before Judge Perkins would resolve all of the discovery issues she
28 -1-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 had raised. Plaintiff Spears' counsel refiised. Plaintiff Spears' attomeys then waited until after
2 Health Net had filed its opposition papers to withdraw her motions. And were there any doubt
3 about their intentions, one need only consider the timing of the withdrawals. Plaintiff Spears sent
4 a process server to deliver her withdrawal on January 30th, the day the opposition briefs were
5 due. Even though counsel must have decided earlier that day (at the latest) to withdraw these
6 motions, counsel waited one hour and twenty minutes after the filing deadline to notify Health
7 Net. If nothing else, it is cleetr that Plaintiff Spears' counsel chose not have the common (much
8 less professional) courtesy to inform Health Net promptly.
9 In light of Plaintiff Spears' failure to comply with her meet-and-confer obligations, her
10 gamesmanship, and bad faith, which required Health Net to incur significant fees and costs
11 opposing multiple discovery motions, Health Net has no choice but to seek monetary sanctions
12 against Plaintiff Spears for filing her latest set of motions to compel. Sanctions are warranted to
13 deter future discovery abuses by Plaintiff Spears.
14 IL RELEVANT FACTUAL AND PROCEDURAL HISTORY
15 A. Plaintiffs And Their Claims Against Health Net
16 Plaintiff Spears is a former non-exempt customer service representative who worked for
17 Health Net for approximately two years at a call center located in Rancho Cordova. On April 5,
18 2017, she filed a putative wage-and-hour class action against Health Net, purporting to represent
19 all cunent and former non-exempt Health Net employees in California from April 5, 2013 to the
20 present On June 29, 2017, Plaintiff Spears filed a first amended complaint adding PAGA
21 allegations, Declaration of Stephanie Gail Lee ("Lee Dec"), ^| 2.
22 Plaintiff Tomas Arana cunentiy works for Health Net and has held various non-exempt
23 and exempt positions at the same Rancho Cordova call center at which Plaintiff Spears worked.
24 Plaintiff Arana filed his putative wage-and-hour class complaint against Health Net on August 1,
25 2017, purporting to represent cunent and former non-exempt employees of Health Net, among
26 others, and a subclass of exempt employees. Id. at ^ 3.
27
28
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MEMORANDUM DF POINTS AND AUTHORJTIES IN SUPPORT OF DEFENDANT'S MOTION FOR
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1 Upon stipulation of the parties, the Court consolidated the two cases on October 11, 2017.
2 Id. at \ 4. The Court later ordered that Plaintiffs consolidate their complaints. Id. On December
3 27, 2017, Plaintiffs filed a Consolidated Complaint alleging: (a) failure to provide meal periods,
4 (b) failure to provide rest periods, (c) failure to pay hourly and overtime wages, (d) failure to
5 correctly pay overtime based on Health Net's alleged failure to properly calculate the regular rate,
6 (e) unlawful rounding practices, (f) failure to provide accurate wage statements, (g) failure to
7 timely pay all final wages, (h) unfair competition, and (i) PAGA-related claims. Id. at \ A, Exh.
8 A. Plaintiffs are attempting to certify four classes - including a non-exempt class, an exempt
9 class, a rounding class, and a UCL class - as well as eight. Id.
10 B. Plaintiffs' Written Discovery, Health Net's Responses. And Needless Disputes
11 Prior to consolidation, both Plaintiffs propounded extensive written discovery on Health
12 Net. Plaintiff Spears served her first sets of document requests, special intenogatories,
13 employment law form intenogatories, and admission requests on July 25, 2017. Id. at \ 5.
14 Plaintiff Arana served his first and second sets of special intenogatories and first sets of
15 document requests, employment law form intenogatories, and admission requests September 19,
16 2017. /<:/. atf6.
17 Health Net served responses to Plaintiff Spears' discovery on September 12, 2017 and
18 produced additional responsive documents two days later. Id. at \ 7. After the Court's
19 consolidation of the two cases, on October 17, 2017, counsel for Health Net initiated meet-and-
20 confer discussions with Plaintiffs' counsel to discuss witten discovery and Plaintiff Spears'
21 proposed Belaire-West notice (the "Notice"). Id. at f 8. During theseraeetand confer
22 discussions over the telephone and e-mail. Health Net explained its bases for objections to certain
23 requests and proposed sequencing discovery. Id. at ^ 9. Health Net explained that the sequencing
24 it proposed would avoid costiy and likely needless discovery especially in light the burden it
25 would take to provide information as to thousands of putative class members if the class is never
26 certified, and thus appropriately defers difficult discovery issues. Id.
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
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1 As a resuh of these discussions, the parties agreed to raise the issue of sequencing
2 discovery at the December 8,2017 Case Management Conference ("CMC"). Id. at f 9, Exh. B,
3 Health Net agreed it would supplement responses to class-certification related discovery in the
4 interim and defer responses to merit-based discovery. Id. And to ensure that Plaintiff Spears
5 would not be prejudiced. Health Net also granted Plaintiff Spears an extension to file any motion
6 to compel until after the CMC. Id. With regards to Plaintiff Spears'proposed Notice, Health
7 Net's counsel explained that because both Plaintiffs sought the contact information of putative
8 class members, it made sense to coordinate on the language. Id.
9 Despite Health Net's meet-and-confer efforts regarding the Notice and Plaintiff Spears'
10 discovery requests, multiple discovery disputes arose at the behest of Plaintiff Spears, who would
11 file a total offivediscovery motions without properly meeting and confening and without
12 substantial justification.
13 1, Plaintiff Spears Filed A Needless Motion For A Belaire-West Notice;
Hiealth Net Had Already Agreed To Provide Such A Notice And Had
^4 Been The Party To Propose It.
15 The first unnecessary discovery motion filed by Plaintiff Spears was her Motion for Order
16 for Opt-Out Privacy Notice to be Sent to Class Members {''Belaire-West Motion").
17 On October 25, 2017, after consolidation of the matter, counsel for Plaintiff Spears sent a
18 proposed Notice which purported to reflect both the cases. Id. at ^ 10, Exh. C. At this point,
19 Health Net had already proposed providing the contact infonnation of putative class members and
20 allegedly aggrieved employees subject to a Belaire-West notice and protective order, and the
21 parties were meeting and confening regarding the contents of the Notice. Id. As Plaintiff Spears'
22 proposed Notice contained a number of deficiencies, such as the failure to include all putative
23 class members, Health Net's counsel initiated further meet and confer discussions with Plaintiffs'
24 counsel regarding the Notice's contents. Idai^, 11, Exh. D. In those discussions, counsel for
25 Health Net pointed out why the proposed Notice did not cover all individuals in the consolidated
26 cases and suggested that Plaintiffs consolidate their claims into one amended complaint to help
27 clarify who should receive the Notice. Id. Plaintiff Arana's counsel agreed to the filing of a
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 consolidated complaint Id. However, on November 8, 2017, Plaintiff Spears'counsel rejected
2 the idea. Id. at f 12, Exh. E. The following day, Health Net's counsel promptiy provided its
3 suggested revisions to the Notice to Plaintiffs' counsel. Id. at ^ 13, Exh. F. Rather than propose
4 additional revisions or further meet and confer on the contents of the Notice, Plaintiff Spears filed
5 her Belaire-West Motion on November 16,2017, despite Health Net's willingness to continue to
6 meet and confer on the Notice contents. Id. at T| 14, Exh. G.
7 The Court mled on PlaintifF Spears's Belaire-West Motion on December 15, 2017,
8 continuing the hearing on the Court's own motion, and ordering the parties to flirther met and
9 confer. Id. at ^ 15, Exh. H. The Court understood that, had the parties met and confened further,
10 many of the issues that Plaintiff Spears brought in her Belaire-West motion could have been
11 resolved, "[pjarticularly in light of a number of concessions found in [Plaintiff Spears'] reply."
12 Id. In its order, the Court reminded the parties of "the critical need for all counsel's legitimate,
13 reasonable and good faith meet-and-confer efforts before filing any discovery motions" and
14 "remind[ed] all counsel but especially [Plaintiff Spears's] that given the number of motions such
15 as this which must be addressed on a daily basis, there are simply not enough judicial resources
16 available to resolve each and every discovery dispute that could have and should have been
17 resolved informally."' Id.
18 Per the Court's order. Plaintiff Spears' counsel met and conferred with Health Net's
19 counsel and acknowledged that Health Net was conect that Plaintiff Spears' proposed Notice
20 contained a number of deficiencies, such as the failure to include all putative class members. Id.
21 at f 17, Exh. J. However, Plaintiff Spears forced another dispute and this time, insisted that the
22 proposed Notice be sent to unidentified cunent and former employees of "staffing agencies" and
23 "any other third parties" - categories of entities that are not parties to this lawsuit. Id. Despite
24 Health Net's pointing out that it is inappropriate to send Notices to these non-parties. Plaintiff
25 Spears pressed on. Id. Judge Rodda recognized the absurdity of Plaintiff Spears' argument. At
26
27 ' Despite the Court's admonitions, Plaintiff Spears' counsel was clear that she did not take to
heart the Court's warnings, stating that "[she] disput[ed] the Court's comments regarding
28 exhausting the meet and confer efforts." Lee Dec, 16, Exh. I.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 the hearing on the Belaire-West Motion on January 4, 2018, the Court agreed with Health Net and
2 summarily rejected Plaintiff Spears' argument, emphasizing that "[t]he Court notes that plaintiffs
3 have yet to sue as a defendant any staffing agency or other third party which is alleged to have
4 provided labor to Health Net." Id at f 18, Exh. K.
5 2. Plaintiff Spears Filed Two Unnecessary Motions To Compel, Which
She Later Withdrew.
6
Plaintiff Spears filed her second and third unnecessary discovery motions because she was
7
allegedly dissatisfied with Health Net's responses to her first set of special intenogatories and
8
requests for production of documents.
9
On November 15, 2017, Plaintiff Spears' counsel emailed Health Net's counsel
10
demanding that Health Net immediately supplement its responses to Plaintiff Spears' discovery
11
requests and produce additional documents. Plaintiff Spears' indicated her intent to file motions
12
to compel if Health Net refused to comply. Id. at f 19, Exh. L. In response. Health Net reminded
13
Plaintiff Spears that, per the parties' meet-and-confer discussions on October 24th and October
14
25th, the parties had already agreed to a process for resolving the concems identified in the
15
underlying discovery. Id. Specifically, the parties had agreed they would submit the issue of
16
sequencing discovery at the upcoming CMC with Judge Perkins. Id. Health Net also reassured
17
Plaintiff Spears that, consistent with its prior representation, it would be supplementing its
18
responses relating to class-certification discovery and intended to do so before the CMC. Id.
19
Health Net also reminded Plaintiff Spears that it had granted her an extension within which to file
20
a motion to compel in case Judge Perkins did not resolve the discovery issues at the CMC. Id. In
21
this way. Health Net ensured that Plaintiff Spears would not be prejudiced by this process.
22
On November 24, 2017, and consistent with its agreement to produce supplemental
23
responses for class-certification related discovery to Plaintiffs, Health Net e-mailed a stipulation
24
and proposed protective order to Plaintiffs' counsel in anticipation of the parties' exchange of
25
confidential documents and information. Id. at ^ 20, Exh. M. Instead of signing or providing
26
proposed revisions to the draft protective order and in spite of the parties' agreement to defer the
27
issue of sequencing discovery to the CMC, Plaintiff Spears filed two motions to compel (one on
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 December 1, 2017 and the other on December 6, 2017) (collectively "First Set of Motions to
2 Compel"), /c/. at f 21, Exhs. N, O.
3 As it had committed during the ongoing meet-and-confer conferences, on December 6 and
4 7, 2017, Health Net served its supplemental documents and discovery responses, including
5 supplemental responses to special intenogatories. Id. at ^ 22. Further, Health Net agreed to
6 produce additional documents once an appropriate protective order was in place because the
7 proposed stipulated protective order still had not been signed. Id. With respect to putative class
8 members' contact information. Health Net restated that it would provide such information once
9 an appropriate 5e/o/re-f^^e5/process was in place. Id.
10 At the December 8, 2017 CMC, the issue of sequencing was addressed and Judge Perkins
11 set February 15, 2018 as the hearing date for Health Net's Motion to Sequence Discovery. Id. at
12 1123, Exh. P. That afternoon. Health Net's counsel reached out to Plaintiffs' counsel and
13 requested that Plaintiff Spears continue the hearing dates on her then-pending First Set of
14 Motions to Compel until after Judge Perkins ruled on the Motion to Sequence. Id. at f 24, Exh.
15 Q. Plaintiff Spears' counsel refused to continue the hearing date, claiming that the responses
16 were deficient because certain documents were not produced on the basis that no protective order
17 was in place. Id. at \ 25, Exh, R. Health Net's counsel pointed out that it had not yet received
18 Plaintiffs' signature on the proposed protective order but, once received. Health Net would serve
19 responsive documents on all parties. Id.
20 On December 15, 2017, nearly one month after Health Net had circulated the draft
21 protective order. Plaintiffs finally provided their signatures. M at ^ 26, Exh. S, Notably, Plaintiff
22 Spears' counsel signed the order without making any changes to it. Id. Within two business days
23 of the protective order being signed, Health Net served its supplemental document production.
24 I d at \ 27.
25 On December 15, 2017, the Court issued its order on Plaintiff Spears' Belaire-West
26 Motion as indicated above. Id. at ^ 15. Health Net again reached out to Plaintiff Spears and
27 renewed its request that she withdraw her First Set of Motions to Compel because the issues
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 raised in those motions overiapped with the Motion to Sequence Discover)'. Id. at \ 28, Exh. T.
2 Apparently in response to the Court's rebuke for filing needless discovery motions. Plaintiff
3 Spears withdrew her First Set of Motions to Compel. Id.
4 Health Net also continued both Plaintiffs' respective deadlines to bring any motions to
5 compel fiirther responses to their written discovery until March 1,2018, two weeks after Health
6 Net anticipated receiving a ruling on its Motion to Sequence Discovery. ^ Id.
7 3. Plaintiff Spears Filed A Second Set Of Unnecessary Motions To
Compel.
The fourth and fifth unnecessary discovery motions were related to Health Net's
supplemental responses to Plaintiff Spears' first set of special intenogatories and requests for
production of documents. As with her prior motions to compel. Counsel for Plaintiff Spears filed
this Second Set of Motions to Compel without meeting and confening with Health Net. Id. at \
30, Exhs. U, V, Plaintiff Spears' attomeys did so on January 17, 2017 in an apparent effort to
have this Second Set of Motions to Compel heard by this Court on Febmary 13, 2018, ju.st two
days before the date Judge Perkins had scheduled to hear Health Net's Motion to Sequence
Discovery. Id. As mentioned above, the issues raised in these motions overlapped. There was no
need to file the Second Set of Motions to Compel.
On January 23, 2018, Health Net filed its Motion to Sequence Discovery, /rf. at 1[ 31, Exh.
W. That same day, Health Net requested that Plaintiff Spears withdraw her Second Set of
Motions to Compel. Id. at 1[ 32, Exh. X. Health Net reminded Plaintiff Spears' counsel that
Health Net had provided supplemental responses and documents to the discovery requests at
issue. Id. Health Net's counsel further reminded Plaintiff Spears' counsel that, to the extent there
were any additional concems, Plaintiff Spears was required to meet and confer, which she had not
done. Id. Health Net also informed Plaintiff Spears' counsel that these motions were also
unnecessary because Judge Perkins would be deciding the issues raised by these motions when he
1 ruled on Health Net's Motion to Sequence. Id. And, Health Net pointed out that, to the extent
2 any issues remained outstanding after the Motion to Sequence Discovery, Health Net had already
3 granted Plaintiff Spears an extension to file her discovery motions. Id. Finally, Health Net's
4 counsel informed Plaintiff Spears' counsel that if she did not withdraw her Second Set of Motions
5 to Compel and Health Net was forced to oppose them, Health Net would have no choice but to
6 seek sanctions. Id. Plaintiff Spears' counsel refused Health Net's request, responding with a non
7 sequitur: "Defendant's motion to bifiircate discovery should not serve to delay discovery that
8 Plaintiff will seek regardless of the outcome of such a motion." Id.
9 On January 30, 2018, the last day for Health Net to timely file its opposition to Plaintiff
10 Spears' Second Set of Motions to Compel, Health Net filed its oppositions at 2:54 p.m. and
11 sought appropriate sanctions in light of Plaintiff Spears' bad faith litigation tactics. Id. at ^ 33.
12 At 5:20 p.m. on the same day, and well after the 4:00 p.m. filing deadline, Plaintiff Spears'
13 counsel emailed Health Net, stating that she was withdrawing her Second Set of Motions to
14 Compel. Id. at ^ 33, Exh, Y. And the purported reason given? They now agree that Judge
15 Perkins intends to decide the issues of concern when he mles on the Motion to Sequence
16 Discovery. Id. As mentioned above, Plaintiff Spears' counsel also attached conespondence she
17 had messengered to the Court earlier that day confirming that Plaintiff Spears had already
18 withdrawn her motions. Id.
19 IIL ARGUMENT
20 A. The Court Has Broad Discretion To Grant Sanctions For Abuse Of The
Discovery Process.
21
"The court may impose a monetary sanction ordering that one engaging in the misuse of
22
the discovery process, or any attomey advising that conduct, or both pay the reasonable expenses,
23
including attomey's fees, incuned by anyone as a resuU of that conduct." Civ. Proc. Code §
24
2023.030(a). "If a monetary sanction is authorized . . . the court shall impose that sanction unless
25
itfindsthat the one subject to the sanction acted with substantial justification or that other
26
circumstances make the imposition of the sanction unjust." Id. "Misuse of the discovery process
27
includes . . . unsuccessflilly making or opposing discovery motions without substantial
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 justification, and failing to meet and confer in good faith to resolve a discovery dispute when
2 required by statute to do so." Civ. Proc. Code §§ 2023,010(h)-(i); Karlsson v. Ford Motor Co.,
3 140 Cal. App. 4th 1202, 1214 (2006); see also Leko v. Cornerstone Building Inspection Serv., 86
4 Cal. App. 4th 1109,1122-23 (2001) (affirming the award of sanctions against the moving party's
5 attomey for failing to meet and confer in good faith).
6 B. Plaintiff Spears' Counsel Has Repeatedly Abused The Discovery Process
Warranting Imposition Of Monetary Sanctions.
7
Plaintiff Spears' counsel's discovery tactics, including the filing offiveunnecessary
8
discovery motions without adequately meeting and conferring,fitsquarely with the Code's list of
9
prohibited discovery conduct. Indeed, "[i]t is a central precept to the Civil Discovery Act of
10
1986 (§2016 et seq.) . . . that civil discovery be essentially self-executing." Townsend v.
11
Superior Court, 61 Cal. App. 4th 1431,1434 (1998). A self-executing discovery system is "one
12
that operates without judicial involvement." C/ewew/ v. Alegre, 177 Cal. App. 4th 1277, 1291-92
13
(2009). To that end, the Discovery Act requires that, prior to the initiation of a motion to compel,
14 e
15 the moving party declare that he or she has made a serious attempt to obtain "an infonnal
16 resolution of each issue." Townsend, 61 Cal. App. 4th at 1435.
17 It is clear that Plaintiff Spears' counsel has failed to take her meet-and-confer obligations
18 seriously. See Civ. Proc. Code § 2016.040. In fact, before filing her Second Set of Motions to
19 Compel, she did not meet and confer at all. Id. at \ 30. It goes without saying that Plaintiff
20 „ Spears' mere sending of e-mail conespondence stating her position is inadequate.
1. Plaintiff Spears Did Not Meet And Confer Before Filing Her Belaire-
21 West Motion.
22 Plaintiff Spears failed to meet and confer adequately prior to the filing of her Belaire-West
23 Motion. Health Net had already agreed to provide the data subject to a Belaire-West notice and
24 protective order. Id. at f 10. In fact, it was Health Net that had proposed a Belaire-West notice as
25 a way to resolve a discovery dispute. Id. The sticking point was the content of the notice. Id. at
26 nil 11-14. But rather than engage in meet-and-confer efforts, Plaintiff Spearsfiledher Belaire-
27 West Motion instead. Id. at 114, Exh. G. Indeed, Plaintiff Spears outright rejected Health Net's
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 proposed revisions and filed the motion before all counsel, including Plaintiff Arana's, had the
2 opportunity to discuss the matter together. Id. The Court recognized that Plaintiff Spears did not
3 meet and confer adequately. Id. at ^ 15, Exh. H. The Court commented that the "unremarkable
4 discovery dispute . . . could have and should have been resolved by counsel via the meet-and-
5 confer process without the use of already scarce judicial resources . . . [pjarticularly in light of a
6 number of concessions found in [Plaintiff Spears'] reply." Id. (emphasis added); see also
7 Townsend, 61 Cal. App. 4th at 1439 (the meet-and-confer process is not meant to be some
8 perfunctory formality but rather it "requires . . . a serious effort at negotiation and information
9 resolution"); see also Obregon v. Superior Court, 67 Cal. App. 4th 424,428 (1998). As
10 mentioned above, the Court also admonished Plaintiff Spears' counsel, yet she persisted. Id. at
11 16-18. When the Court mled on her motion, the Court rejected each and every one of her
12 arguments and denied her motion. Id. at ^ 18, Exh. K.
13 2. Plaintiff Spears Did Not Meet And Confer Before Filing Her First Set
Of Motions To Compel, Which She Later Withdrew.
14
Despite the Court's admonitions. Plaintiff Spears again failed to meet and confer
15
adequately prior the filing of her First Set of Motions to Compel. In late October 2017, the
16
parties agreed they would submit the issue of sequencing certification and merits discovery to
17
Judge Perkins. Id. at 9,19, Exh, B. Accordingly, Health Net agreed to supplement its
18
responses to Plaintiff Spears' special intenogatories and requests for production of documents for
19
requests that were class-certification related. Id. To also ensure that Plaintiff Spears would not
20
be prejudiced in case Judge Perkins did not mle on the issues in dispute, Health Net extended the
21
time for Plaintiff Spears to file motions to compel until after the CMC. Id. To cany out its end of
22
the bargain and provide supplemental responses and documents. Health Net sent Plaintiffs'
23
counsel a stipulation and proposed protective order to facilitate the exchange of confidential and
24
proprietary information that Health Net intended to produce. Id. at % 20, Exh. M.
25
However, rather than providing any proposed revisions to the draft protective order or
26
executing the stipulation. Plaintiff Spears filed her First Set of Motions to Compel without further
27
meeting and confening with Health Net. Id. at "j] 21. These motions were premature and
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
1 unnecessary. As Health Net promised it would. Health Net provided supplemental documents
2 and discovery responses prior to the CMC. Id. at ^ 22. Further, once Plaintiffs returned an
3 executed protective order after sitting on it for nearly one month and not supplying one revision
4 to it. Health Net served additional supplemental documents. Id. at 22, 26, Exh. S. Moreover,
5 Plaintiff Spears' motions raised potential sequencing issues that the parties agreed to raise at the
6 CMC.
7 There was simply no need for these motions. Health Net did what it had promised it
8 would and, as a result. Plaintiff Spears' First Set of Discovery Motions was largely mooted due to
9 her insistence on filing premature motions with the Court rather than allowing sufficient time for
10 the parties to informally resolve such dispute. Id. at f 28, Exh. T. And, Plaintiff Spears later
11 withdrew these motions, but only after Health Net had incuned expenses in responding to them.
12 Id
13 3. Plaintiff Spears Did Not Meet And Confer Before Filing The Second
Set of Motions To Compel, Which She Also Withdrew.
14
Plaintiff Spears completely failed to meet and confer prior to the filing of her Second Set
15
of Motions to Compel. Id. at f 30. Seemingly, she filed these motions purely so that Health Net
16
would incur additional costs and fees in opposing them.
17
At the time they filed their Second Set of Motions to Compel, PlaintifF Spears' counsel
18
were well aware that Judge Perkins had set a hearing date for a Motion to Sequence Discovery
19
and intended to decide all issues Plaintiff Spears was raising in her motions. Id. at f 23, Exh. P.
20
Plaintiff Spears' counsel also knew that if Judge Perkins somehow did not resolve all issues.
21
Health Net had granted Plaintiff Spears additional time after the hearing to file her discovery
22
motions to address those lingering issues. Id. at f 9, Exh. B. There was no reason to file the
23
Second Set of Motions to Compel except to force Health Net to incur costs in opposing them and
24
to try an end-around Judge Perkins. Plaintiff Spears' counsel knew all of this. She was present at
25
the CMC where the parties raised the issue of sequencing and Judge Perkins set a hearing on the
26
matter. Id. at f 23, Exh. P. Health Net reminded Plaintiff Spears' counsel of all of this when it
27
asked her to withdraw her Second Set of Motions to Compel. Id. at f 19, Exh. L.
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
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1 Plaintiff Spears uUimately withdrew the Second Set of Motions to Compel, but
2 deliberately waited until well after Health Net had already filed its opposition. Id. at f 33, Exh.
3 Y. And what is patently obvious is that she knew well before Health Net's filing deadline that
4 she was going to withdraw these motions as evidenced by the letter she sent to the Court via
5 process server. Id. In her email conespondence explaining her withdrawal. Plaintiff Spears'
6 counsel explicitly conceded that she had been wrong all along. Id. She agreed that Judge
7 Perkins' anticipated mling on the Motion to Sequence Discovery would resolve the issues raised
8 by these motions. Id. Plaintiff Spears' counsel essentially admitted that, had she met and
9 confened in good faith, she would not have filed her Second Set of Motions to Compel.
10 C. Because Of Plaintiff Spears* Counsel's Gamesmanship. Health Net Has
Needlessly Had To Oppose Five Discovery Motions.
11
Plaintiff Spears' counsel should know better. On their website, they report that they have
12
handled a large number of wage-and-hour class actions. Id. at f 34, Exh. Z. They claim they
13
have recovered millions of dollars in these cases, and presumably millions of dollars in attorneys'
14
fees. Id. Despite this alleged experience and expertise, Plaintiff Spears' attomeys have filed five
15
needless discovery motions - one they lost and four they withdrew, but only after Health Net had
16
incuned the expense of opposing them.-' The Court sharply denied her Belaire-West Motion after
17
cautioning her that the Court takes a party's meet-and-confer obligations seriously. Plaintiff
18
Spears later withdrew her First Set of Motions to Compel, but again, only after Health Net
19
incuned the expense of opposing them. Health Net was forced to dance the same dance again
20
when Plaintiff Spears filed her Second Set of Motions to Compel after she had failed to meet and
21
confer. And again. Plaintiff Spears withdrew her motions, deliberately delaying informing Health
22
Net so Healtii Net would have to file its opposition papers. This conduct wanants sanctions.
23
These consolidated cases are at the begirming stages of litigation. These cases will likely
24
be litigated for years before they are tried because the claims are many and complex. The Court
25
26
27
^ It bears noting that Plaintiff Arana's attomeys have not filed any discovery motion. Lee Dec, f
28 35.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
I should send a strong message lo Plaintiff Spears' attomeys: stop litigating this way. Start
2 meeting and conferring in good faith. Stop filing needless motions.
3 D. Health Net la Entitled To Sanctions.
4 Health Net's counsel spent in excess of twenty (20) hours preparing its Oppositions and
5 supporting papers to Plaintiff Spears' Second Set of Motions to Compel. Declaration of Timothy
6 J. Long, "8 5. Health Net's counsel's hourly rate for this work is $572. Id.
7 Health Net's counsel spent in excess of ten (10) hours preparing this Motion for
8 Sanctions and expects to spend an additional four (4) hours drafting the reply brief, preparing for
9 the hearing, and appearing at the hearing. Id. at ^ 6. Health Net's counsel also expects to incur a
10 filing fee of $60. fd.
II Although the cost to Health Net has been more, Health Net requests that the Court impose
12 monetary sanctions in the amount of $S,000. The purpose in requesting this amount is to send a
13 message to Plaintiffs Spears' counsel: stop litigating in this manner and take your meet-and-
14 confer obligations seriously. Id at ^ 7. Sanctions in Ihis amount are more than reasonable and
15 just
16 IV. CONCLUSION
17 Plaintiff Spears' counsel has been abusing the discovery process. Health Net therefore
18 respectfully requests that the Court issue a monetary sanction against Plaintiff Spears' counsel in
19 the amount of $5,000.
20
Dated: February 28,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
21
22
23 TIM ;ONG
AttomI fendant
24 HEALTH NE Ll FORNI A, INC.
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27
28
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR
MONETARY SANCTIONS
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) EKDORSEO tjlong@onick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 20ieFEB28 PH 3=51 400 Capitol Mall, Suite 3000 X 3 Sacramento, CA 95814-4497 SUFERiOR courtT Or CAl.lf CRNiA Telephone: +1 916 447 8299 COUNTY OFSACKAilEHiO D Facsimile: +1 916 329 4900 > 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee(^omck.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 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 similarly CU-OE-GDS 14 situated. Plaintiff, MEMORANDUM OF POINTS AND 15 AUTHORITIES IN SUPPORT OF DEFENDANT HEALTH NET OF 16 CALIFORNIA, INC.'S MOTION FOR HEALTH NET OF CALIFORNIA, INC., a MONETARY SANCTIONS 17 Califomia Corporation; and Does 1 through 50, inclusive. Date: March 27,2018 18 Time: 9:00 a.m. Dept: 54 Defendants. 19 Complaint Filed: April 5,2017 20 FAC Filed: June 29, 2017 Consolidated Complaint Filed: Dec. 21, 2017 21 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017 22 others similarly situated. 23 Plaintiff 24 V. 25 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 -50, 26 inclusive, 27 Defendant. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 TABLE OF CONTENTS 2 Page 3 I. INTRODUCTION 1 4 II. RELEVANT FACTUAL AND PROCEDURAL HISTORY 2 A. Plaintiffs And Their Claims Against Health Net 2 5 B. Plaintiffs' Written Discovery, Health Net's Responses, And Needless 6 Disputes 3 1. Plaintiff Spears Filed A Needless Motion For A Belaire- West 7 Notice: Health Net Had Already Agreed To Provide Such A Notice And Had Been The Party To Propose It 4 8 2. Plaintiff Spears Filed Two Unnecessary Motions To Compel, Which She Later Withdrew 6 9 3. Plaintiff Spears Filed A Second Set Of Unnecessary Motions To 10 Compel 8 III. ARGUMENT 9 A. The Court Has Broad Discretion To Grant Sanctions For Abuse Of The 12 Discovery Process 9 j2 B. Plaintiff Spears' Counsel Has Repeatedly Abused The Discovery Process Warranting Imposition Of Monetary Sanctions 10 14 1. Plaintiff Spears Did Not Meet And Confer Before Filing Her Belaire- West Motion 10 ^^ 2. Plaintiff Spears Did Not Meet And Confer Before Filing Her First Ig Set Of Motions To Compel, Which She Later Withdrew 11 3. Plaintiff Spears Did Not Meet And Confer Before Filing The 17 Second Set of Motions To Compel, Which She Also Withdrew 12 C. Because Of Plaintiff Spears' Counsel's Gamesmanship, Health Net Has 18 Needlessly Had To Oppose Five Discovery Motions 13 19 D. Health Net Is Entitied To Sanctions 14 20 IV. CONCLUSION 14 21 22 23 24 25 26 27 28 -1 - MEMORANDUM OF POI"NTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Clement v. Alegre, 5 177 Cal. App. 4tii 1277 (2009) 10 6 Karlsson v. Ford Motor Co. 140 Cal. App. 4th 1202 (2006) 10 7 Leko V. Cornerstone Building Inspection Serv., 86 Cal.App. 4th 1109 (2001) 10 8 9 Obregon v. Superior Court, jQ 67 Cal. App. 4th 424 (1998) 11, 12, 13 11 Townsend v. Superior Court, 61 Cal. App. 4th 1431 (1998) 10, 11 12 Statutes 13 Civ. Proc. Code § 2016,040 10. 11 14 Civ. Proc. Code §§ 2023.010(h)-(i) 10 15 Civ. Proc. Code § 2023.030(a) 9 16 J7 Civil Discovery Act of 1986 10 18 19 20 21 22 23 24 25 26 27 28 " -11 - MEMORANDUM OF POINTS AND AU rHORITlES IN SUPPORT OF DEFENDANT'S MOTION FOR" MONETARY SANCTIONS 1 I. INTRODUCTION 2 Defendant Health Net of California, Inc. ("Health Net") appreciates that the Court would 3 rather not have to deal with a sanctions motion. Health Net does not like being in this position, 4 either. But the discovery process in this case has spun out of control due to the behavior of 5 counsel for Plaintiff Andrea Spears, and a message needs to be sent to them: stop filing needless 6 motions. 7 From the outset of this case. Health Net has tried to work with opposing counsel to 8 organize and stmcture the litigation of this lawsuit in an orderly fashion. This has included 9 working with Plaintiff Tomas Arana's counsel to transfer Plaintiff Arana's case to Sacramento; 10 then suggesting that PlaintifF Arana's lawsuit and Plaintiff Spears' lawsuit be consolidated given 11 that the cases overlap, which after court intervention, occurred late last year; and trying to meet 12 and confer to organize discovery in a manner that permits the parties to litigate this case 13 efficiently without wasting judicial and party resources. 14 While counsel for Plaintiff Arana has had no concems that have prompted them lofileany 15 discovery motions, counsel for PlaintifF Spears seems to have a penchant for tuming discovery 16 disputes into baseless accusations and unnecessary morions. While it is well established that civil 17 discovery should be essentially self-executing, Plaintiff Spears' attomeys have engaged in an 18 extraordinary and well-documented abuse of the discovery process, including repeated failures to 19 meet and confer prior lo filing five urmecessary discovery motions. None were brought with 20 substantial justification, and all could have been resolved through meet and confer. Plaintiff 21 Spears has conceded as much because she withdrew four of these discovery motions - after 22 Health Net was forced to oppose them. She lost the other motion. 23 It has become abundanUy clear that Plaintiff Spears' counsel are engaging in conduct that 24 is designed to escalate Health Net's litigation costs needlessly. Indeed, Plaintiff Spearsfiledher 25 latest discover}' motions without having made any attempt to meet and confer with Health Net. 26 When Health Net requested that Plaintiff Spears' lawyers withdraw these motions, pointing out 27 that another motion pending before Judge Perkins would resolve all of the discovery issues she 28 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 had raised. Plaintiff Spears' counsel refiised. Plaintiff Spears' attomeys then waited until after 2 Health Net had filed its opposition papers to withdraw her motions. And were there any doubt 3 about their intentions, one need only consider the timing of the withdrawals. Plaintiff Spears sent 4 a process server to deliver her withdrawal on January 30th, the day the opposition briefs were 5 due. Even though counsel must have decided earlier that day (at the latest) to withdraw these 6 motions, counsel waited one hour and twenty minutes after the filing deadline to notify Health 7 Net. If nothing else, it is cleetr that Plaintiff Spears' counsel chose not have the common (much 8 less professional) courtesy to inform Health Net promptly. 9 In light of Plaintiff Spears' failure to comply with her meet-and-confer obligations, her 10 gamesmanship, and bad faith, which required Health Net to incur significant fees and costs 11 opposing multiple discovery motions, Health Net has no choice but to seek monetary sanctions 12 against Plaintiff Spears for filing her latest set of motions to compel. Sanctions are warranted to 13 deter future discovery abuses by Plaintiff Spears. 14 IL RELEVANT FACTUAL AND PROCEDURAL HISTORY 15 A. Plaintiffs And Their Claims Against Health Net 16 Plaintiff Spears is a former non-exempt customer service representative who worked for 17 Health Net for approximately two years at a call center located in Rancho Cordova. On April 5, 18 2017, she filed a putative wage-and-hour class action against Health Net, purporting to represent 19 all cunent and former non-exempt Health Net employees in California from April 5, 2013 to the 20 present On June 29, 2017, Plaintiff Spears filed a first amended complaint adding PAGA 21 allegations, Declaration of Stephanie Gail Lee ("Lee Dec"), ^| 2. 22 Plaintiff Tomas Arana cunentiy works for Health Net and has held various non-exempt 23 and exempt positions at the same Rancho Cordova call center at which Plaintiff Spears worked. 24 Plaintiff Arana filed his putative wage-and-hour class complaint against Health Net on August 1, 25 2017, purporting to represent cunent and former non-exempt employees of Health Net, among 26 others, and a subclass of exempt employees. Id. at ^ 3. 27 28 -2- MEMORANDUM DF POINTS AND AUTHORJTIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 Upon stipulation of the parties, the Court consolidated the two cases on October 11, 2017. 2 Id. at \ 4. The Court later ordered that Plaintiffs consolidate their complaints. Id. On December 3 27, 2017, Plaintiffs filed a Consolidated Complaint alleging: (a) failure to provide meal periods, 4 (b) failure to provide rest periods, (c) failure to pay hourly and overtime wages, (d) failure to 5 correctly pay overtime based on Health Net's alleged failure to properly calculate the regular rate, 6 (e) unlawful rounding practices, (f) failure to provide accurate wage statements, (g) failure to 7 timely pay all final wages, (h) unfair competition, and (i) PAGA-related claims. Id. at \ A, Exh. 8 A. Plaintiffs are attempting to certify four classes - including a non-exempt class, an exempt 9 class, a rounding class, and a UCL class - as well as eight. Id. 10 B. Plaintiffs' Written Discovery, Health Net's Responses. And Needless Disputes 11 Prior to consolidation, both Plaintiffs propounded extensive written discovery on Health 12 Net. Plaintiff Spears served her first sets of document requests, special intenogatories, 13 employment law form intenogatories, and admission requests on July 25, 2017. Id. at \ 5. 14 Plaintiff Arana served his first and second sets of special intenogatories and first sets of 15 document requests, employment law form intenogatories, and admission requests September 19, 16 2017. /<:/. atf6. 17 Health Net served responses to Plaintiff Spears' discovery on September 12, 2017 and 18 produced additional responsive documents two days later. Id. at \ 7. After the Court's 19 consolidation of the two cases, on October 17, 2017, counsel for Health Net initiated meet-and- 20 confer discussions with Plaintiffs' counsel to discuss witten discovery and Plaintiff Spears' 21 proposed Belaire-West notice (the "Notice"). Id. at f 8. During theseraeetand confer 22 discussions over the telephone and e-mail. Health Net explained its bases for objections to certain 23 requests and proposed sequencing discovery. Id. at ^ 9. Health Net explained that the sequencing 24 it proposed would avoid costiy and likely needless discovery especially in light the burden it 25 would take to provide information as to thousands of putative class members if the class is never 26 certified, and thus appropriately defers difficult discovery issues. Id. 27 28 -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 As a resuh of these discussions, the parties agreed to raise the issue of sequencing 2 discovery at the December 8,2017 Case Management Conference ("CMC"). Id. at f 9, Exh. B, 3 Health Net agreed it would supplement responses to class-certification related discovery in the 4 interim and defer responses to merit-based discovery. Id. And to ensure that Plaintiff Spears 5 would not be prejudiced. Health Net also granted Plaintiff Spears an extension to file any motion 6 to compel until after the CMC. Id. With regards to Plaintiff Spears'proposed Notice, Health 7 Net's counsel explained that because both Plaintiffs sought the contact information of putative 8 class members, it made sense to coordinate on the language. Id. 9 Despite Health Net's meet-and-confer efforts regarding the Notice and Plaintiff Spears' 10 discovery requests, multiple discovery disputes arose at the behest of Plaintiff Spears, who would 11 file a total offivediscovery motions without properly meeting and confening and without 12 substantial justification. 13 1, Plaintiff Spears Filed A Needless Motion For A Belaire-West Notice; Hiealth Net Had Already Agreed To Provide Such A Notice And Had ^4 Been The Party To Propose It. 15 The first unnecessary discovery motion filed by Plaintiff Spears was her Motion for Order 16 for Opt-Out Privacy Notice to be Sent to Class Members {''Belaire-West Motion"). 17 On October 25, 2017, after consolidation of the matter, counsel for Plaintiff Spears sent a 18 proposed Notice which purported to reflect both the cases. Id. at ^ 10, Exh. C. At this point, 19 Health Net had already proposed providing the contact infonnation of putative class members and 20 allegedly aggrieved employees subject to a Belaire-West notice and protective order, and the 21 parties were meeting and confening regarding the contents of the Notice. Id. As Plaintiff Spears' 22 proposed Notice contained a number of deficiencies, such as the failure to include all putative 23 class members, Health Net's counsel initiated further meet and confer discussions with Plaintiffs' 24 counsel regarding the Notice's contents. Idai^, 11, Exh. D. In those discussions, counsel for 25 Health Net pointed out why the proposed Notice did not cover all individuals in the consolidated 26 cases and suggested that Plaintiffs consolidate their claims into one amended complaint to help 27 clarify who should receive the Notice. Id. Plaintiff Arana's counsel agreed to the filing of a 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 consolidated complaint Id. However, on November 8, 2017, Plaintiff Spears'counsel rejected 2 the idea. Id. at f 12, Exh. E. The following day, Health Net's counsel promptiy provided its 3 suggested revisions to the Notice to Plaintiffs' counsel. Id. at ^ 13, Exh. F. Rather than propose 4 additional revisions or further meet and confer on the contents of the Notice, Plaintiff Spears filed 5 her Belaire-West Motion on November 16,2017, despite Health Net's willingness to continue to 6 meet and confer on the Notice contents. Id. at T| 14, Exh. G. 7 The Court mled on PlaintifF Spears's Belaire-West Motion on December 15, 2017, 8 continuing the hearing on the Court's own motion, and ordering the parties to flirther met and 9 confer. Id. at ^ 15, Exh. H. The Court understood that, had the parties met and confened further, 10 many of the issues that Plaintiff Spears brought in her Belaire-West motion could have been 11 resolved, "[pjarticularly in light of a number of concessions found in [Plaintiff Spears'] reply." 12 Id. In its order, the Court reminded the parties of "the critical need for all counsel's legitimate, 13 reasonable and good faith meet-and-confer efforts before filing any discovery motions" and 14 "remind[ed] all counsel but especially [Plaintiff Spears's] that given the number of motions such 15 as this which must be addressed on a daily basis, there are simply not enough judicial resources 16 available to resolve each and every discovery dispute that could have and should have been 17 resolved informally."' Id. 18 Per the Court's order. Plaintiff Spears' counsel met and conferred with Health Net's 19 counsel and acknowledged that Health Net was conect that Plaintiff Spears' proposed Notice 20 contained a number of deficiencies, such as the failure to include all putative class members. Id. 21 at f 17, Exh. J. However, Plaintiff Spears forced another dispute and this time, insisted that the 22 proposed Notice be sent to unidentified cunent and former employees of "staffing agencies" and 23 "any other third parties" - categories of entities that are not parties to this lawsuit. Id. Despite 24 Health Net's pointing out that it is inappropriate to send Notices to these non-parties. Plaintiff 25 Spears pressed on. Id. Judge Rodda recognized the absurdity of Plaintiff Spears' argument. At 26 27 ' Despite the Court's admonitions, Plaintiff Spears' counsel was clear that she did not take to heart the Court's warnings, stating that "[she] disput[ed] the Court's comments regarding 28 exhausting the meet and confer efforts." Lee Dec, 16, Exh. I. -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 the hearing on the Belaire-West Motion on January 4, 2018, the Court agreed with Health Net and 2 summarily rejected Plaintiff Spears' argument, emphasizing that "[t]he Court notes that plaintiffs 3 have yet to sue as a defendant any staffing agency or other third party which is alleged to have 4 provided labor to Health Net." Id at f 18, Exh. K. 5 2. Plaintiff Spears Filed Two Unnecessary Motions To Compel, Which She Later Withdrew. 6 Plaintiff Spears filed her second and third unnecessary discovery motions because she was 7 allegedly dissatisfied with Health Net's responses to her first set of special intenogatories and 8 requests for production of documents. 9 On November 15, 2017, Plaintiff Spears' counsel emailed Health Net's counsel 10 demanding that Health Net immediately supplement its responses to Plaintiff Spears' discovery 11 requests and produce additional documents. Plaintiff Spears' indicated her intent to file motions 12 to compel if Health Net refused to comply. Id. at f 19, Exh. L. In response. Health Net reminded 13 Plaintiff Spears that, per the parties' meet-and-confer discussions on October 24th and October 14 25th, the parties had already agreed to a process for resolving the concems identified in the 15 underlying discovery. Id. Specifically, the parties had agreed they would submit the issue of 16 sequencing discovery at the upcoming CMC with Judge Perkins. Id. Health Net also reassured 17 Plaintiff Spears that, consistent with its prior representation, it would be supplementing its 18 responses relating to class-certification discovery and intended to do so before the CMC. Id. 19 Health Net also reminded Plaintiff Spears that it had granted her an extension within which to file 20 a motion to compel in case Judge Perkins did not resolve the discovery issues at the CMC. Id. In 21 this way. Health Net ensured that Plaintiff Spears would not be prejudiced by this process. 22 On November 24, 2017, and consistent with its agreement to produce supplemental 23 responses for class-certification related discovery to Plaintiffs, Health Net e-mailed a stipulation 24 and proposed protective order to Plaintiffs' counsel in anticipation of the parties' exchange of 25 confidential documents and information. Id. at ^ 20, Exh. M. Instead of signing or providing 26 proposed revisions to the draft protective order and in spite of the parties' agreement to defer the 27 issue of sequencing discovery to the CMC, Plaintiff Spears filed two motions to compel (one on 28 -6- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 December 1, 2017 and the other on December 6, 2017) (collectively "First Set of Motions to 2 Compel"), /c/. at f 21, Exhs. N, O. 3 As it had committed during the ongoing meet-and-confer conferences, on December 6 and 4 7, 2017, Health Net served its supplemental documents and discovery responses, including 5 supplemental responses to special intenogatories. Id. at ^ 22. Further, Health Net agreed to 6 produce additional documents once an appropriate protective order was in place because the 7 proposed stipulated protective order still had not been signed. Id. With respect to putative class 8 members' contact information. Health Net restated that it would provide such information once 9 an appropriate 5e/o/re-f^^e5/process was in place. Id. 10 At the December 8, 2017 CMC, the issue of sequencing was addressed and Judge Perkins 11 set February 15, 2018 as the hearing date for Health Net's Motion to Sequence Discovery. Id. at 12 1123, Exh. P. That afternoon. Health Net's counsel reached out to Plaintiffs' counsel and 13 requested that Plaintiff Spears continue the hearing dates on her then-pending First Set of 14 Motions to Compel until after Judge Perkins ruled on the Motion to Sequence. Id. at f 24, Exh. 15 Q. Plaintiff Spears' counsel refused to continue the hearing date, claiming that the responses 16 were deficient because certain documents were not produced on the basis that no protective order 17 was in place. Id. at \ 25, Exh, R. Health Net's counsel pointed out that it had not yet received 18 Plaintiffs' signature on the proposed protective order but, once received. Health Net would serve 19 responsive documents on all parties. Id. 20 On December 15, 2017, nearly one month after Health Net had circulated the draft 21 protective order. Plaintiffs finally provided their signatures. M at ^ 26, Exh. S, Notably, Plaintiff 22 Spears' counsel signed the order without making any changes to it. Id. Within two business days 23 of the protective order being signed, Health Net served its supplemental document production. 24 I d at \ 27. 25 On December 15, 2017, the Court issued its order on Plaintiff Spears' Belaire-West 26 Motion as indicated above. Id. at ^ 15. Health Net again reached out to Plaintiff Spears and 27 renewed its request that she withdraw her First Set of Motions to Compel because the issues 28 -7- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 raised in those motions overiapped with the Motion to Sequence Discover)'. Id. at \ 28, Exh. T. 2 Apparently in response to the Court's rebuke for filing needless discovery motions. Plaintiff 3 Spears withdrew her First Set of Motions to Compel. Id. 4 Health Net also continued both Plaintiffs' respective deadlines to bring any motions to 5 compel fiirther responses to their written discovery until March 1,2018, two weeks after Health 6 Net anticipated receiving a ruling on its Motion to Sequence Discovery. ^ Id. 7 3. Plaintiff Spears Filed A Second Set Of Unnecessary Motions To Compel. The fourth and fifth unnecessary discovery motions were related to Health Net's supplemental responses to Plaintiff Spears' first set of special intenogatories and requests for production of documents. As with her prior motions to compel. Counsel for Plaintiff Spears filed this Second Set of Motions to Compel without meeting and confening with Health Net. Id. at \ 30, Exhs. U, V, Plaintiff Spears' attomeys did so on January 17, 2017 in an apparent effort to have this Second Set of Motions to Compel heard by this Court on Febmary 13, 2018, ju.st two days before the date Judge Perkins had scheduled to hear Health Net's Motion to Sequence Discovery. Id. As mentioned above, the issues raised in these motions overlapped. There was no need to file the Second Set of Motions to Compel. On January 23, 2018, Health Net filed its Motion to Sequence Discovery, /rf. at 1[ 31, Exh. W. That same day, Health Net requested that Plaintiff Spears withdraw her Second Set of Motions to Compel. Id. at 1[ 32, Exh. X. Health Net reminded Plaintiff Spears' counsel that Health Net had provided supplemental responses and documents to the discovery requests at issue. Id. Health Net's counsel further reminded Plaintiff Spears' counsel that, to the extent there were any additional concems, Plaintiff Spears was required to meet and confer, which she had not done. Id. Health Net also informed Plaintiff Spears' counsel that these motions were also unnecessary because Judge Perkins would be deciding the issues raised by these motions when he 1 ruled on Health Net's Motion to Sequence. Id. And, Health Net pointed out that, to the extent 2 any issues remained outstanding after the Motion to Sequence Discovery, Health Net had already 3 granted Plaintiff Spears an extension to file her discovery motions. Id. Finally, Health Net's 4 counsel informed Plaintiff Spears' counsel that if she did not withdraw her Second Set of Motions 5 to Compel and Health Net was forced to oppose them, Health Net would have no choice but to 6 seek sanctions. Id. Plaintiff Spears' counsel refused Health Net's request, responding with a non 7 sequitur: "Defendant's motion to bifiircate discovery should not serve to delay discovery that 8 Plaintiff will seek regardless of the outcome of such a motion." Id. 9 On January 30, 2018, the last day for Health Net to timely file its opposition to Plaintiff 10 Spears' Second Set of Motions to Compel, Health Net filed its oppositions at 2:54 p.m. and 11 sought appropriate sanctions in light of Plaintiff Spears' bad faith litigation tactics. Id. at ^ 33. 12 At 5:20 p.m. on the same day, and well after the 4:00 p.m. filing deadline, Plaintiff Spears' 13 counsel emailed Health Net, stating that she was withdrawing her Second Set of Motions to 14 Compel. Id. at ^ 33, Exh, Y. And the purported reason given? They now agree that Judge 15 Perkins intends to decide the issues of concern when he mles on the Motion to Sequence 16 Discovery. Id. As mentioned above, Plaintiff Spears' counsel also attached conespondence she 17 had messengered to the Court earlier that day confirming that Plaintiff Spears had already 18 withdrawn her motions. Id. 19 IIL ARGUMENT 20 A. The Court Has Broad Discretion To Grant Sanctions For Abuse Of The Discovery Process. 21 "The court may impose a monetary sanction ordering that one engaging in the misuse of 22 the discovery process, or any attomey advising that conduct, or both pay the reasonable expenses, 23 including attomey's fees, incuned by anyone as a resuU of that conduct." Civ. Proc. Code § 24 2023.030(a). "If a monetary sanction is authorized . . . the court shall impose that sanction unless 25 itfindsthat the one subject to the sanction acted with substantial justification or that other 26 circumstances make the imposition of the sanction unjust." Id. "Misuse of the discovery process 27 includes . . . unsuccessflilly making or opposing discovery motions without substantial 28 -9- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 justification, and failing to meet and confer in good faith to resolve a discovery dispute when 2 required by statute to do so." Civ. Proc. Code §§ 2023,010(h)-(i); Karlsson v. Ford Motor Co., 3 140 Cal. App. 4th 1202, 1214 (2006); see also Leko v. Cornerstone Building Inspection Serv., 86 4 Cal. App. 4th 1109,1122-23 (2001) (affirming the award of sanctions against the moving party's 5 attomey for failing to meet and confer in good faith). 6 B. Plaintiff Spears' Counsel Has Repeatedly Abused The Discovery Process Warranting Imposition Of Monetary Sanctions. 7 Plaintiff Spears' counsel's discovery tactics, including the filing offiveunnecessary 8 discovery motions without adequately meeting and conferring,fitsquarely with the Code's list of 9 prohibited discovery conduct. Indeed, "[i]t is a central precept to the Civil Discovery Act of 10 1986 (§2016 et seq.) . . . that civil discovery be essentially self-executing." Townsend v. 11 Superior Court, 61 Cal. App. 4th 1431,1434 (1998). A self-executing discovery system is "one 12 that operates without judicial involvement." C/ewew/ v. Alegre, 177 Cal. App. 4th 1277, 1291-92 13 (2009). To that end, the Discovery Act requires that, prior to the initiation of a motion to compel, 14 e 15 the moving party declare that he or she has made a serious attempt to obtain "an infonnal 16 resolution of each issue." Townsend, 61 Cal. App. 4th at 1435. 17 It is clear that Plaintiff Spears' counsel has failed to take her meet-and-confer obligations 18 seriously. See Civ. Proc. Code § 2016.040. In fact, before filing her Second Set of Motions to 19 Compel, she did not meet and confer at all. Id. at \ 30. It goes without saying that Plaintiff 20 „ Spears' mere sending of e-mail conespondence stating her position is inadequate. 1. Plaintiff Spears Did Not Meet And Confer Before Filing Her Belaire- 21 West Motion. 22 Plaintiff Spears failed to meet and confer adequately prior to the filing of her Belaire-West 23 Motion. Health Net had already agreed to provide the data subject to a Belaire-West notice and 24 protective order. Id. at f 10. In fact, it was Health Net that had proposed a Belaire-West notice as 25 a way to resolve a discovery dispute. Id. The sticking point was the content of the notice. Id. at 26 nil 11-14. But rather than engage in meet-and-confer efforts, Plaintiff Spearsfiledher Belaire- 27 West Motion instead. Id. at 114, Exh. G. Indeed, Plaintiff Spears outright rejected Health Net's 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 proposed revisions and filed the motion before all counsel, including Plaintiff Arana's, had the 2 opportunity to discuss the matter together. Id. The Court recognized that Plaintiff Spears did not 3 meet and confer adequately. Id. at ^ 15, Exh. H. The Court commented that the "unremarkable 4 discovery dispute . . . could have and should have been resolved by counsel via the meet-and- 5 confer process without the use of already scarce judicial resources . . . [pjarticularly in light of a 6 number of concessions found in [Plaintiff Spears'] reply." Id. (emphasis added); see also 7 Townsend, 61 Cal. App. 4th at 1439 (the meet-and-confer process is not meant to be some 8 perfunctory formality but rather it "requires . . . a serious effort at negotiation and information 9 resolution"); see also Obregon v. Superior Court, 67 Cal. App. 4th 424,428 (1998). As 10 mentioned above, the Court also admonished Plaintiff Spears' counsel, yet she persisted. Id. at 11 16-18. When the Court mled on her motion, the Court rejected each and every one of her 12 arguments and denied her motion. Id. at ^ 18, Exh. K. 13 2. Plaintiff Spears Did Not Meet And Confer Before Filing Her First Set Of Motions To Compel, Which She Later Withdrew. 14 Despite the Court's admonitions. Plaintiff Spears again failed to meet and confer 15 adequately prior the filing of her First Set of Motions to Compel. In late October 2017, the 16 parties agreed they would submit the issue of sequencing certification and merits discovery to 17 Judge Perkins. Id. at 9,19, Exh, B. Accordingly, Health Net agreed to supplement its 18 responses to Plaintiff Spears' special intenogatories and requests for production of documents for 19 requests that were class-certification related. Id. To also ensure that Plaintiff Spears would not 20 be prejudiced in case Judge Perkins did not mle on the issues in dispute, Health Net extended the 21 time for Plaintiff Spears to file motions to compel until after the CMC. Id. To cany out its end of 22 the bargain and provide supplemental responses and documents. Health Net sent Plaintiffs' 23 counsel a stipulation and proposed protective order to facilitate the exchange of confidential and 24 proprietary information that Health Net intended to produce. Id. at % 20, Exh. M. 25 However, rather than providing any proposed revisions to the draft protective order or 26 executing the stipulation. Plaintiff Spears filed her First Set of Motions to Compel without further 27 meeting and confening with Health Net. Id. at "j] 21. These motions were premature and 28 - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 unnecessary. As Health Net promised it would. Health Net provided supplemental documents 2 and discovery responses prior to the CMC. Id. at ^ 22. Further, once Plaintiffs returned an 3 executed protective order after sitting on it for nearly one month and not supplying one revision 4 to it. Health Net served additional supplemental documents. Id. at 22, 26, Exh. S. Moreover, 5 Plaintiff Spears' motions raised potential sequencing issues that the parties agreed to raise at the 6 CMC. 7 There was simply no need for these motions. Health Net did what it had promised it 8 would and, as a result. Plaintiff Spears' First Set of Discovery Motions was largely mooted due to 9 her insistence on filing premature motions with the Court rather than allowing sufficient time for 10 the parties to informally resolve such dispute. Id. at f 28, Exh. T. And, Plaintiff Spears later 11 withdrew these motions, but only after Health Net had incuned expenses in responding to them. 12 Id 13 3. Plaintiff Spears Did Not Meet And Confer Before Filing The Second Set of Motions To Compel, Which She Also Withdrew. 14 Plaintiff Spears completely failed to meet and confer prior to the filing of her Second Set 15 of Motions to Compel. Id. at f 30. Seemingly, she filed these motions purely so that Health Net 16 would incur additional costs and fees in opposing them. 17 At the time they filed their Second Set of Motions to Compel, PlaintifF Spears' counsel 18 were well aware that Judge Perkins had set a hearing date for a Motion to Sequence Discovery 19 and intended to decide all issues Plaintiff Spears was raising in her motions. Id. at f 23, Exh. P. 20 Plaintiff Spears' counsel also knew that if Judge Perkins somehow did not resolve all issues. 21 Health Net had granted Plaintiff Spears additional time after the hearing to file her discovery 22 motions to address those lingering issues. Id. at f 9, Exh. B. There was no reason to file the 23 Second Set of Motions to Compel except to force Health Net to incur costs in opposing them and 24 to try an end-around Judge Perkins. Plaintiff Spears' counsel knew all of this. She was present at 25 the CMC where the parties raised the issue of sequencing and Judge Perkins set a hearing on the 26 matter. Id. at f 23, Exh. P. Health Net reminded Plaintiff Spears' counsel of all of this when it 27 asked her to withdraw her Second Set of Motions to Compel. Id. at f 19, Exh. L. 28 - 12- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS 1 Plaintiff Spears uUimately withdrew the Second Set of Motions to Compel, but 2 deliberately waited until well after Health Net had already filed its opposition. Id. at f 33, Exh. 3 Y. And what is patently obvious is that she knew well before Health Net's filing deadline that 4 she was going to withdraw these motions as evidenced by the letter she sent to the Court via 5 process server. Id. In her email conespondence explaining her withdrawal. Plaintiff Spears' 6 counsel explicitly conceded that she had been wrong all along. Id. She agreed that Judge 7 Perkins' anticipated mling on the Motion to Sequence Discovery would resolve the issues raised 8 by these motions. Id. Plaintiff Spears' counsel essentially admitted that, had she met and 9 confened in good faith, she would not have filed her Second Set of Motions to Compel. 10 C. Because Of Plaintiff Spears* Counsel's Gamesmanship. Health Net Has Needlessly Had To Oppose Five Discovery Motions. 11 Plaintiff Spears' counsel should know better. On their website, they report that they have 12 handled a large number of wage-and-hour class actions. Id. at f 34, Exh. Z. They claim they 13 have recovered millions of dollars in these cases, and presumably millions of dollars in attorneys' 14 fees. Id. Despite this alleged experience and expertise, Plaintiff Spears' attomeys have filed five 15 needless discovery motions - one they lost and four they withdrew, but only after Health Net had 16 incuned the expense of opposing them.-' The Court sharply denied her Belaire-West Motion after 17 cautioning her that the Court takes a party's meet-and-confer obligations seriously. Plaintiff 18 Spears later withdrew her First Set of Motions to Compel, but again, only after Health Net 19 incuned the expense of opposing them. Health Net was forced to dance the same dance again 20 when Plaintiff Spears filed her Second Set of Motions to Compel after she had failed to meet and 21 confer. And again. Plaintiff Spears withdrew her motions, deliberately delaying informing Health 22 Net so Healtii Net would have to file its opposition papers. This conduct wanants sanctions. 23 These consolidated cases are at the begirming stages of litigation. These cases will likely 24 be litigated for years before they are tried because the claims are many and complex. The Court 25 26 27 ^ It bears noting that Plaintiff Arana's attomeys have not filed any discovery motion. Lee Dec, f 28 35. - 13 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS I should send a strong message lo Plaintiff Spears' attomeys: stop litigating this way. Start 2 meeting and conferring in good faith. Stop filing needless motions. 3 D. Health Net la Entitled To Sanctions. 4 Health Net's counsel spent in excess of twenty (20) hours preparing its Oppositions and 5 supporting papers to Plaintiff Spears' Second Set of Motions to Compel. Declaration of Timothy 6 J. Long, "8 5. Health Net's counsel's hourly rate for this work is $572. Id. 7 Health Net's counsel spent in excess of ten (10) hours preparing this Motion for 8 Sanctions and expects to spend an additional four (4) hours drafting the reply brief, preparing for 9 the hearing, and appearing at the hearing. Id. at ^ 6. Health Net's counsel also expects to incur a 10 filing fee of $60. fd. II Although the cost to Health Net has been more, Health Net requests that the Court impose 12 monetary sanctions in the amount of $S,000. The purpose in requesting this amount is to send a 13 message to Plaintiffs Spears' counsel: stop litigating in this manner and take your meet-and- 14 confer obligations seriously. Id at ^ 7. Sanctions in Ihis amount are more than reasonable and 15 just 16 IV. CONCLUSION 17 Plaintiff Spears' counsel has been abusing the discovery process. Health Net therefore 18 respectfully requests that the Court issue a monetary sanction against Plaintiff Spears' counsel in 19 the amount of $5,000. 20 Dated: February 28,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 21 22 23 TIM ;ONG AttomI fendant 24 HEALTH NE Ll FORNI A, INC. 25 26 27 28 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION FOR MONETARY SANCTIONS