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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhort6n@orrick.com
3 ORRICK, HERRINGTON & SUTGLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
5 Facsimile: +1 916 329 4900
6 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
11 similarly situated.
Plaintiff, DECLARATION OF TIMOTHY J.
12
LONG IN SUPPORT OF MOTION AS
13 TO WHY ARANA'S CASE SHOULD
NOT PROCEED AS A PAGA
HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION
14 Caiifomia Corporation; and Does 1 thrpugh
50, inclusive. Date: April 11,2019
15 Time: 10:00 a.m.
Defendants. Dept: 35
16 Judge: Hon. Alan G. Perkins
17 Complaint Filed: April 5,2017
FAC Filed: June 29, 2017
18
19 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017
others similarly situated. Consolidated Complaint Filed: Dec. 21,2017
CO 20
Plaintiff,
21
<
22
HEALTH NET OF CALIFORNIA, INC., a
23 Caiifomia corporation; and DOES 1-50,
inclusive.
24
Defendant.
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DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 I, Timothy J. Long, hereby declare as follows:
2 1. I am an attomey duly admitted to practice before the courtsi of the State of
3 Caiifomia and a partner in the law firm of Orrick, Herrington & Sutcliffe LLP, attomeys of
4 record for Defendant Health Net of Caiifomia, Inc. ("HNCA"). I make this declaration on
5 personal knowledge and, if swom as a witness, could competently testify to the following.facts
6 except where otherwise indicated.
7 2. On May 11, 2017, Plaintiff Tomas Arana filed a complaint in the Superior Comt
8 of Santa Clara, but the parties stipulated to dismissal of that complaint without prejudice so that it
9 could be refiled in this Court. A true and correct copy of the parties' stipulation regarding
10 dismissal of Mr. Arana's cpmplaint, dated July 26', 2017, is attached hereto as Exhibit A.
11 3. On August 1, 2017, Mr. Arana filed suit against HNCA in this Court, purporting to
12 bring class and representative claims on behalf of all non-exempt arid certain exempt HNCA
13 employees. A tme and correct copy of Mr. Arana's complaint is attached hereto as Exhibit B.
14 4. In October 2017, Mr. Arana attempted to file a First Amended Complaint
15 containing a cause of action for civil penalties under the PAGA, but that filing was rejected by the
16 Court. A tme and correct copy of the Court's Notice to Filing Party - Retumed Documents, dated
17 October 20, 2017, is attached hereto as Exhibit C.
18 5. Pursuant to the parties' stipulation, the Court consolidated Mr. Arana's case with
19 the case filed by Plaintiff Andrea Spears against HNCA. The cases were consolidated for all
20 purposes on October 11, 2017. A tme and correct copy of the Court's order consolidating these
21 actions is attached hereto as Exhibit D.
22 6. On December 8,2017, the Court ordered that Mr. Arana and Ms. Spears could file
23 a consolidated complaint, and that Mr. Arana could "amend the allegations of his existing
24 complaint to conform to the allegations of the proposed amended complaint" that he attempted to
25 file in October 2017. A tme and correct copy of the Court's minute order is attached hereto as
26 Exhibit E.
27 7. On December 21, 2017, Plaintiffs filed a Consolidated Complaint piuporting to
28 bring class and representative claims against HNCA. A tme and correct copy of the Consolidated
-2-
DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION '. ~
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 Complaint is attached hereto as Exhibit F. ^
2 8. OnOct6ber23, 2018, the Court granted HNCA's motion for summary
3 adjudication on certain claims, including Plaintiffs' rounding claims and shift differential claims.
4 A tme and correct copy of the Court's order granting summary adjudication is attached hereto as
5 Exhibit G.
6 9. HNCA filed a renewed motion for summary adjudication on November 20, 2018,
7 on Plaintiffs' claims that certain bonuses and cash payments should have been included in their
8 regular rate for purposes of calculating overtime compensation. See Mem. Points & Authorities
9 ISO Renewed Mot. for Summ. Adj., Nov. 20, 2018.
10 10. On December 3, 2018,1 deposed Mr; Arana in this matter. A tme and correct
11 copy of the relevant portions of Mr. Arana's deposition transcript are attached hereto as
12 Exhibit H.
13 I declare under the penalty of perjury under the laws of the State of Caiifomia and that the
14 foregoing is tme and correct. Executed this 21st day of December, 2018, at Sacramento,
15 Caiifomia.
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-3-
4152-9522-5881.2 ^
DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
EXHIBIT A
JOINT STIPULATION
This Joint Stipulation ("Stlpulatioa") is made and entered into by and between Tomas R.
Aiana ("PlaintifF'), Health Net, Inc. ("HNF) and Health Net of Califoinia, Inc. ("HNCA").
Plainti£f, HNI and HNCA are sometimes collectively referred to as the "Parties."
A. WHEREAS, Plaiotiif filed a class action complaint against HNI in the Superior
Court of Caiifomia. County of Santa Clara, Case No. 17CV309964, on May 11.2017 ("Original
Complaint"). A true and correct copy of the Original Complaint is attached hereto as Exhibit A;
B. WHEREAS, the Original Complaint alleges: (i) failure to provide meal periods;
(ii) failure to prcfvide rest periods; (iii) failure to pay hourly wages; (iv) failure to provide accurate
written wage statement; (v) failure to timely pay all final wages; and (vi) unfah- competition (the
"Claims'^;
C. WHEREAS, it was Plaintiff's intention to amend the Original Complaint to
include penalties under Labor Code 2698, et. Sec.
D. WHEREAS, Plaintiffis currently employed by HNCA.
E. WHEREAS, HNCA warrants that it assumes HNI's obligations and liabilities, if
any, for purposes ofthe Claims alleged by Plaintiff in tbe Original Complaint and that, as such,
HNCA is the proper party defendant for the entire class period pled in the Original Complaint;
F. WHEREAS, the Parties are willing to enter into this Stipulation upon the terms
and conditions set forth below; -
NOW, THEREFORE, for good and sufficient consideration, the receipt of which is
hereby acknowledged, IT IS STIPULATED as follows:
1. Dismissal; Plaintiff will file a request to dismiss his Original Complaint against
HNI without prejudice on or before July 28,2017.
2. Corrected Complaint: PlaintifT will file a complaint in tbe Superior Court of
Caiifomia for the County of Sacramento alleging the Claims against HNCA ("Corrected
Complaint") by August 4,2017.
3. Tolling: The statute ofUmitations applicable to the Claims alleged in the Corrected
Complaint for Plaintiff (and any penalties pursuant to Labor Code 2698, et. Sec.) and the putative
class will be tolled from the date of thefilingof the Original Complaint, May 11, 2017. The
relevapt time period at issue in the Corrected Complaint with respect to the Claims shall include
any and all workweeks during which Plaintiff and the putative class performed work for HNI
and/or HNCAfiromMay 11,2013 to the presenL This Stipulation does not apply to any allegations
other than the Claims.
4. Aflirmarivc Defenses: Notwithstanding Paragraph 3 above, neither HNI nor
HNCA waives any applicable Affirmative Defenses with respect to the Original Complaint or tbe
Corrected Complaint.
Page 1 ofl j
0)ISUSA:76698i5«5,4
5. Modification: This Stipulation can be modified only in a writing signed by the
Parties. This Stipulation shall constitute the entire understanding between the Parties coaceming
the subject matter ofthis Stipulation and siqwisedes and replaces all prior negotiations, proposed
agreements, and agreements, written or oral, relating to this subject.
6. Governing Law; This Stipulation shall be govemed and constmed and enforced
in accordance with the laws of the State of Caiifomia.
7. Execution of Counterparts; Separate counteiparts of this Stipulation may be
executed bytfieParties with the same force and effect as if all such Parties had executed a single
copy of this Stipuladon.
8. Authority to Bindt Each Counsel executing this Stipulation represents and
warrants that he or she has been authorized to enter intotiiisStipulation on behalf of the party on
whose behalf he or she has signed and that he or she has fiill and complete authority to do so.
Dated: July Z^, 2017 SETAREH LAW GROUP
Attomeys for Plaintiff,
TOMAS R. ARANA
Dated: July ^ 20 i 7 ORRICK, HERRINGTON & SUTCLIFFE LLP
By:_
STEPHANIE GAIL LEE
Attomeys for
HEALTH NET, INC. and HEALTH NET
OF CALIFORNIA, INC.
Page 2 ofl
OHSUSA;7669865£S.4
Shaun Sf^areh (SBN 204514) E-FILED
sbaun@setardilaw.com 5^11/2017 8:46:24 AM
Clerk of Court
Thomas Segal (SBN 222791) Superior Court of CA,
3 thomaB@setarehlaw.com County of Santa Clara
SETAREH LAW GROUP
' 4 17CV309964
9454 Wilshire Boulevard, Suite 907 Reviewed By:R. Walker
5 Beverly Hills, California 90212
Telephone (310) 888-7771
S JFacsMnile (310) 888-0109
7
Attorn^forPlaintiff,
e TOMAS R. ARANA
9
10 SUPERIOR COURT OP THE STATE OF CALlFORI!nA
11
FOR THE COUNTY OF SANTA CLARA
13
UNLIMITED JURISDICTION
13
. 14 17CV309964
TOMAS R. ARANA, on behalf of himself, all Case No.
IS others similady situated, \
CLASS A^TTION
16 Plaintiff,
COMPLAINTFOR:
vs.
18
1. Failure to Provide Meal Periods (Lab.
HEALTH NET, INC., a Delaware Code §§ 204,223,226.7, SI2, and 1198);
19 corporation; and DOES 1-SO, inclusive, 2. Failure to Provide Rest Periods (Lab.
Code §§ 204,223,226.7, and 1198);
20 3. Faihire to Pay Houriy Wages (Lab. Cbde
Defendants.
21
§§ 223,510.1194,1194.2,1197,1997.1.
and J198);
23 4. FailuTB to Provide Accurate Written Wage
Statements (Lab. Code § 226(a));
23 5. Failure lo Timely Pay All Final Wages
34 (Lab. Code §§201-203);
6. Unfair Competition (Bus. & Pmf Code §§
2S I7200,£(^.);
26
JURY TRL\L DEMANDED
27
28
A rami r. Health Net, Inc. Class Aclion Complaini
1 Plaimiir, Tomas R. Arana (referred to as "Plaintiff'), on behalf of himsdf, all others
3 similarly situated, complains and alleges as follows:
3 INTRODUCTION
4 I. Plaintiff brings this class action against defendant Health Net. Inc.. a Delaware
S corporatiofl (refened lo as "Health Net") and Does 1 through 50, inclusive (collectively refmed
6 to as "Defendants") for alleged violations ofthe Labor Code and Business and Professions
7 Code. As set forth bebw, Plaintiff alleges that Defendants failed to provide him and all other
8 similarly situated individuals with meal periods, failed to provide them with rest periods, failed
9 to pay premium wages for missed meal and/or rest periods, failed to pay them for all hours
10 worked, failed to pay overtime wages at the correct rate, failed to pay double time wages at the
11 correct rate, failed (b prhvide them with atcurate written wage statements, and faOed to timtSy
12 pay them all of their final wages following separation of employment. PlaintifF also alleges that
13 Defendants misdassified him and all simiiariy situated individuals as exempt employees when
14 they were, in fact, non-exempt employees who were enutled to meal and rest periods and
15 overtime compensation. Based on these alleged violations. Plaintiff now brings this class and
16 representative action to recover unpaid wages, restitution, and related reKef on behalf of
17 limself, all others simiiariy situated.
18 JURISDICTION AND VENUE
X9 2. This Court has subject matto- jurisdiction to hear this case because Plaintiff is
30 informed and believes, and based thereon alleges, Aat the monetary damages and restitution sought
21 lereinforDeftndmits' conduct exceedsfyeminimal jurisdictional limits of the Superior Court.
33 3. Venue is proper in Santa Clara County pursuant lo Code of Civil Procedure
23 sections 39S(a) and 395.5 in that liability arose in Santa Claia County because at least some of die
24 transactions that are the subject mano- of this Complaint occunnd therein and/or each defendant is
25 bund,roaintaiosoffices, transacts business, and/or has an ageiit therein.
2£ PARTIES
27 5. Defendant Health Net, Inc. is a Delaware corporation authorized to do business
28 in Caiifomia.
/4rawi V. Health Net, Inc. Class Acikm Complaini
1 6. Plaintiff is ignorant of the true names, capacities, relationships, and extent of
2 participation in the conduct alleged herein, of the DefoMlante sued as Does I -50, inclusive, but
3 is informed and believes diat said Defendants are l^Ily responsible for the conduct alleged
« herein and therefore sues diese Defendants by such fictitious names. Plaintiff will amend this
5 complaint to allege both the true names and capacities of the Doe Defendants when ascertained.
6 7. Plamtiff is informed and believes that each Defendant acted in all respects
7 pertinent to this action as Ihe agent of Ihe other Defendants, carried out a joint scheme, business
8 plan or policy in all respects pertinent hereto, and that the ads of each Defendant are legally
9 attributable to each of the other Defendants.
10 CLASS ALLEGATIONS
11 8. This action has been brought and may be loaintained as a class action pursuant to
12 Code of Civil Procedure section 382 becaise there is a well-defined community of interest
IJ among the persons who comprise the readily ascertainable classes defined below and because
14 Plaintiffis unaware of my difficulties likely lo be encountered in managing this case as a dass
IS action.
le 9. Relevant Thne Period: The relevant time period is defined as the time period
17 )eginning four years prior to the filing of this action until judgment is entered.
18 10. The dass and sub-clus members are defined as follows:
19 Non-Eitcmpt Class; All persons employed by Defendants and/or any staffing
agencies and/br any other third parties who woriced in a call center in honriy or
30 non-exempt positions in Caiifomia during the Relevant Time Period.
31 Non-Exempt Meal Period Sab^lMs; Ail Non-Exempt Class members
who woriced a shift in excess of five hours during the Relevant Time
32 Period.
23 Non-Exempt R«t Perliwi Sub-Class: Ail Non-£xempt Class monbers
who woriced a shitt of at least threeand one-half (3.5) hours during the
24 Relevant Time Period.
2S Non-Exempt WaEe Statement Pcnalttes Snb-Clas^; All Non-Exempt
diass members employed by Defendants in Caiifomia during the period
26 beginning one year before the filing of Ihis acticm and ending when final
juogment is entered.
37
28
Amm V. Hailih Net, Inc. Class Action Complaint
Non-Exempt Watting Time Penalties Sub-Class: All Non-Exempt
Class membere who separatedfromtheir employment witb Defendants
during the period beginning three years before the filing of this action and
ending when final judgment is entered.
Exempt : All persons emidoyed by Defendants and/or any stafBng
4
agencies i w any other third parties in CaUfomia as a Business Anal)«t,
. ,
5
Systems Analyst, Contact Center Analyst or Analyst during the Relevant Time
Perlbd.
E Exempt Meal Period Sub-Qara; All Exempt Class members who
worked a shift in excess of Qve, hours during the Relevant Tine Period.
7
Exenint Rest Pytod Swb-Ciass; All Exempt Class members who
'a worked a shift ot at least three and one-half (3.5) hours during the
Relevant Time Period.
9
Exempt Wage Statemmt Pea^tles Snb-Claips: All Exempt Class
10 members employed by Ifefendants in Caiifomia during the period
beginning one year before the filing of this adion and ending when imal
11 judgment is entened.
12 Exeatipt Waiting Time Penalties Sub-Class; All Exempt Class
members who separatedfromthdr employment widi Defendants during
13 the period begiimmg three years before thefilingof this action and ending
wiien final jiragmcnt is entered.
14
Rdnndine Class; All persons employed by Oefetidants and/or any staffing
IS
16
aendes and/br any other third parties in Caiifomia whose hours worked were
feded by Defendants' rounding practices during the Relevant Time Period.
UCL Oass; All Non-Exempt Class, Exempt Class and Rounding Class
17 members employed by Defotidants in Caiifomia during the Rdevant Time
Period.
18
19 11. Reservation ef Riehts; Pursuantto Rule of Court 3.765(b), Plaintiff reserves
30
therightto amend or modify die class definitions with greater specificity, by further division
21
into subO-dasses, and/or by Ihnitation to particular issues.
22 12. Numerosity; The class members are so numerous that the individual joinder of
23 each individual class member is hnpiadical. While Plaimiff does not currently know the exad
24 number of class members, Plaindff is infoimed and bdieves that the actual number exceeds die
25 minimun) required for numerosity under Caiifomia law.
2« 13. CommonaHtv snd Predomtnancct Common questions oflaw and fad exist as
27 to all dass members and predominate over any questions which affed only individual class
28 members. These common questions include, but are not limtted to;
Arana v. Henlth Net, Inc. Class Action Complaint
1 Whether Defendants maintained a policy or practice of failing lo provide
2 employees with their meal poiods;
3 Whether Defendants maintained a policy or practice of failing to provide
B.
4 employees with their test periods;
5
C. Whether Defendantsfoiledto pay premium wages to class members
6 when they have not been provided with required meal and/or rest periods;
7 Whether Defendantsfoiledto pay minimum and/or overtime wages to
8 class membtts as a result pf polides that fail to provide meal periods in
9 accordance with Caiifomia law?
10 Have Ddbndants used payroll formulas that systematicallyfoilto account
11 for non-discretionary bonuses and/or other applicable remuneration when
12 calculating regular rates of payforclass members?
13 F. Have Defendants failed to pay overtime wages to dass in embers as a
14 r^lt of incorrectly calculating their regular rates of pay?
IS Whether Defendants have failed to pay premium wages to class members
IS based on their respective "regular rates of compensation" by not
17 including commissions and/or income in calculating fhe rates at which
18 those wages are paid?
19 H. Whether Defendantsfiuledto provide class members with accurate
20 written wage statonents as a result of providing them with written wage
31 statemems with iaaccurate entries for, among odier di/ngs, amounts of
32 gross and nd wages, and lotal liours worked;
33 Whether Defendants applied polides or pradices thai result in late and/or
24 incomplde final wage payments;
25 Whdher l>efendants are liable to class members for waiting time
26 penalties undo- Labor Code section 203;
37 Whether class members arc entitied to restitution of money or property
28 that Defendants may have acquiredfipomthem through unfair
tAnmo V. Health Net, Inc. Class Aclion Complaint
compdition. |
14. Tvoicglltv; Plaintiffsdaimsaietyincalof die other class members'claims.
Plaintiff is informed and believes and thereon alleges that Defendants have a policy or practice
offoilingto comply with the Labor Code and the Business and Professions Code as allied
5 herein. < ^ i
6 15. Adeoaacv of Class Representative; Plaintiff is an adequate dass representative
7
in that he has no interests that are adverse to, or otherwise conflict with, Ihe interests of absent
8
class members and is dedicated to vigorously prosecuting this action on thdr bdialf. Plaintiff
9
willfoiriyand adequately represent and proted the interests of the other class memben.
10
16. Adequacy of Class Connsel; Plaintiffs counsd are adequate dass counsel in
11
that they have no known conflicts of interest with Plaintiff or absent class members, are
13
experienced in wage and hour dass adion litigation, and are dedicated to vigorously
13
prosecuting this action on bdialf of Plaintiff and absent class members.
14
17. Superiority; A dass action is vai^y superior to other available meansforfair
is and efficient adjudication of ihe dass members' claims and would be beneficial to the parties
16 and the Court. Class action treatment will allow a numberof similarly situated persons to
17 simultaneously and eflidemly prosecute thdr common daims in a sin^efonunwithout Ihe
18 unnecessary duplication of effort and expense that numerous individual actions would entail. In
19 addition, the monetary antounts due to many individual dass members are likely to be relativdy
30 small and would thus make it difficult, if uot.impossibl^^for individual dass members to bodi
31 seek and obtain relief Moreover, a dass adion will serve an important public interest by
33 permitting class members lo effedivdy pursue Ihe recovery of moneys owed to them. Further,
33 a class aclion will prevent the potentialforinconsistent or contradictory judgments inherent in
24 individual litigtf ion. ,
25 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION
26 18. Plaintiff was hired by Defendants on or about Fdiniary 25,2008 as a hourly,
27 non-exempt employee who worked at a caii center in California^
2B 19. On or about November 16,2015, Plaintiff was promoted to a salary, exempt
Arana v. Heatth Na, Inc Class Action Complaiat
1 position.
3
Clocic In Process
3
20. Plaintiff and putative dass was trained to dock in for each woric shift using die
4
desktop computer assigned to them. Plaintiffand the putative c l ^ were required to first tum
s on thdr computer and wait for it to load; ll generally look proximately five to tea minutes for
6
it lo boot up to the Windows log in prompt.
7
21. Afio* Plaintiff and the putative class entered their useniame and password, Uieir
B
computer would proceed to load to the develop while other programs were started in the
9
background automatically as part of (he normal boot up process. It generally took another five
10
to ten minutes fbr it to complete the entire boot up cycle.
11
22. Occasionally, Plaintiff and the putative class would encounter login errors or
13
computer oashes that would require them to restart the entire boot up fnxicess. The entire time
13
spent booting tip the computer would not be accurately recorded and therefore resuhed in
14
Plaintiff and the putative class not bdng paid for all tmurs worked while waiting for the
IB
computer die boot up:
16
23. After the computer successfidly booted up. Plaintiff and die putative dass would
17
le required to log in U> other programs such as CareMark, CSI and Marks. '
IS
24. After logging into the above-reforenced programs, PlainliflPand^the putative class
19
would finally log in to a program called "Convergence" which is the program that is used by all
20 the call center employeesformaking and receiving customer service calls. It is only upon
21 bgging^mto Convergence will an employee be recognized as being "clocked in" by Defendants,
32 which is dietimerecognized as the actual starttimefor each workday and when Plaintiff and
23 the putative dass would begin to be paid by Defendants.
24 25. Accordingly, by the time Plaintiff and die putative class logged into
25 Convergence, fifteen to thirty minutes,or more may have already passed - ali of whicdi were not
26 iroperly recorded as time woriced and whicA resuhed in Plaintiff and the putative class not
27 being paid for all hours worked by Defendants.
38 HI
Aram V. Health Net. he. Class Acfion Complaim
Clock Out Process
3
26. Simiiariy, upon docking outforeadi work shift, Plaintiff and the putative class
3 were required to shutdown their compilers by foltowing a sequence of stqis. First, they were
4 retjuired to log out of (Convergence. Upon logging out of Convergence, eadi employee was
5 deemed to be "docked out," which is the tune recognized as die adual endtimefor each
6 workday and when Plaintiff and the piMative class would stop bdng paid by Defendants.
7 27. After logging out of Convergence, Plaintiff and the putative dass would then log
8 out of Ihe other programs they had open during thdr work shift. After all Ihe programs were
9 shutdown, they would dien shut down the computer.
10 28. Accordingly, after Plaintifif and the putative class iosged out of Convergence,
11 th^ were required to spend approximately five to ten minutes to shut down other programs and
13 die computer <- all of which were not properly recorded as lime worked and which resulted in
13 Plaintiff and the putative class not bdng pddforall hours woriced by Defendants.
14 MisdassiflcalioB as Exempt Employee
15 6. Plaintiff and the putative dass were also misdassified as exempt employees
16 when in fact they were non-exdnpL PlaintifT and the putative dassregularlyworked more than
17 eight hours each workday, and more than forty hours eadi workweek. Plaintiff and the putative
18 class were paid afixedsalaiy regardless ofthe hours Ihey worked and were not paid any
19 overtime compenation.
< 20 7. Plaintiff and the putative dass did not perform duties, more thanfiftypcjxent
21 (50%) of thetime,diat would qualify them as exempt employees under the Professional,
23 Executive or Admmistrative exemptions. Accordingly, Plaintiff and the putative dass were
33 entitied to all tbe protections afforded to them as non-exempt empfoyees under Caiifomia law.
24 8. As a result of bdng misdassified as an exempt employee, the time spent by
25 Piaintiff and the putative class were not accurately recorded by the timekeeping system utilizoi
36 by DcfbidantB and dierefore resulted in thefoilureto pay Plaintiff and the putative dassforall
27 hours adually worked and overtime compensation.
28 ///
Anna v. Health Net, Inc. Class Action Complaini
Improper Rounding Practices
9. Moreover, begioniog Jamiary 1,2017, Defendants began lo utilize a munding
practice that required Plaintiff and Ihe putative class to round thdr start times to the next hour.
4 For example, if an employee was scheduled to work at 9:00 a.m., that onployee bad a six
9 minute grace period to clock in for their shift by thattime,iftin'semployee attempts to clock in
6 after die expiration of the grace period, die employee's start time would beroundedto the next
7 hour which would be 10:00 a.m. even though the mployee mromoiced work at 9:10 a jn.
8 10. Plaintiff is informed and bdieves, and thereupon alleges, that Defendants have
9 not, did not, and do not keep records of actual hours worked by Plaintiff and the putative class.
10 In the absence ofreconisshowing actual hours worked, Plaintiff and the putative class are
11 unable to ascertain whether (1) Defemiants*roundingpradices comply with CaKfomta law; (2)
12 whether Defendants'roundingpractices resulted over a period oftime,in failure lo compensate
13 Plaintifr and the putative class properiy for all tho time they actually worked; and (3) whdher
14 Plaintiff and the puUitive class were properly paidforall hours worked.
IS Missed Meal Periods
16 11. Plaintiff and the putative class members were not provided with meal periods of
17 at least thirty (30) minutes for each five (5) hour work period due to (I) Defendants' policy of
18 not sdieduling each meal period as part of each work shifl; (2) chronically understaffing each
19 work shift widinot enough workera; (3) iinposing so much work on each employee such that it
20 made it unlikely that an employee would be able to take ihdr breaks if they wanted to finish
21 thdr work on tmie; and (4) no formal written meal and rest period policy that encouraged
22 employees to take their meal and rest periods.
33 12. As a result of Defendants' policy, Plaintiff and the putative class were riegulariy
34 not provided with unintenupted meal periods of at least thirty (30) minutes for eadifive(5)
35 lours worked due to complying vrith Defendants' productivity requirements that required
26 Plaimiff and the putative class to work dirough didr meal periods in order to complete didr
27 assignmenui on time.
38 ///
Arena ¥. Hailih Na. Inc Class Action Complaiat
Missed Rest Periods
13. Plaintiff and die putative class members were not provided v/\th rest periods of at
least ten (10) minutes for each four (4) hour work period, or majorftaetionthereof, due to (1)
Defendants' policy of not scheduling each est period as part of each woric shift; (2) chronically
understafSng each work shift with not enough workers; (3) imposing so much work on each
employee such that it made it unlikely that an employee would be able to take their breaks if
they wanted to finish didr work ontime;and (4) no formal writien meal and rest period policy
that encouraged employees to take their meal and rest pen'ods.
9 14. As a result of Defendants' policy, Plaintiff and tbe putative class were regulariy
10 not provided with uninterrupted rest periods of at'least ten (10) minutes for each four (4) hours
11 worked due to complying vnth Defendants' productivity requireinents that required Plaintiff and
12 the putative class lo work through iheii- rest periods in order to complete thdr assignments on
13 time.
14 Regular Rate of Pay
15 15. The regular fate of pay under Caiifomia law includes all remuneration for
16 einployment paid to, on bdialf of, the employee. Tliis requirement indudes, but is nol limited,
17 to, commissions arui non-discretionary bonuses.
18 16. During the applicable limitations period, Defendants violated therightsof
19 Plaintiff and the putative class under the above-referenced Labor Code sections by failing to pay
20 diem overtime wagesforall overtime hours woriced in violation of Labor Code 510,1194,
21 and 1198 as a result of not coiredly calculating thdr regularrateof pay to indude all applicable
22 remuneration, including, but not limited to, non-discretionary bonuses and/or shift differential
33 pay- I
24 FIRST CAUSE OF ACTION
23 FAILURE TO PROVIDE MEAL PERIODS
26 (Lab. Code §§ 204,223,226.7,512 and 1198)
27 (Plaintiff, Non-Exempt Meal Break Sub-Class, Exempt Meal Break Sub-Class)
28 17. Plaintiff incorporates die preceding paragraphs ofthe Complaint as if folly
Amnn c. Henlth N«l. Inc. Oass Aclion Complaint
alleged herein. Spedfically, Plaintiff incorporates paragraphs i I and 12 ofthe Complaini as if
fully alleged herdn.
18. At allrelevanttimes, Plaintiff and die Non-Exempt Meal Break Sub-Class and
Exempt Meal Break Sub-Chiss members have been non-exempt employees of Defendants
entided to die fiill meal period protedions of both the Labor Code and die Indusuial Wdfare
Commission Wag^ Order 5-200 I f Wage Order")'
19. Labor Code sedion 512 and section 11 of the applicable Wage Order impose an
affirmative obligation on employes to provide non-exempt employees with uninterrupted, duly-
9 free, meal periods of at least diirty minutesforeach work period offivehours, and to provide
10 Ihem with two uninterrupted, duty-free, meal periods of at least thirty minutes Um each work
11 period often hours.
13 20. Labor Code section 226.7 and section 11 of the the applicable Wage Order both
13 prohibit employers from requiring employees to woik during required meal periods and require
14 employers to pay non-exempt employees an hour of premium wages on each workday that the
IS employee is not provided with the required meal period.
16 21. Compensationformissed meal periods constitutes wages within tbe meaning of
17 the Labor Code section 200. ^
IB 22. Labor Code section 1198 makes it unlawfol to employ a person under conditions
19 tiiat violate the Wage Order.
30 23. Sedion 11 of the af^ltcable Wage Order states:
21 "No employer shall employ any person for a work period of more than frve (5) hours
wtdiout a meal period of not less diaa 30 mninutes, except that when a work period of
33 not more than six (6) hours will complete the day's work the meal period may be waived
by mutual consent of the emptoyer and employee. Unless the employee is rdieved of all
33 duty during a 30 minute meal period, the meal period shall be considered an "on dut/*
meal period and counted as time woiked. An "on duty" meal paiod shall be permitted
34 only when the nature of the work prevents an employee from bdngrelievedof all duty
and when by written agreement between the parties an on-the-job paid meal period is
35 agreed lo. The written agreement shall stale that die employee may, in writing, revoke
the a^Tcement at anytime."8 Cal. Code Regs. § 11040(11).
26
27 24. At all rdevani times, Plaintiffwas not subject to a valid on-duty meal period
28 agreement. Plaintiff is informed and believes that, at all rdevanttimes,Non-Exempt Meal
10
Arana v. Health Net. Inc. Class Action ComphHrt
X Break Sub-Class and Exempt Meal Break Snb-Oass members were not subject to valid on-
3 duty nieal period agreements with Defendants.
3 Unprovided Meal Periods
4 25. Plamtiff alleges durt, atrelevanttimesduring the applicable limitations period.
9 Defendants maintained a policy or practice of not providing Plaintiff and members of the Non-
6 Exempt Meal Break Sub-Class and Exempt Meal Break SulK^Iass with uninterrupted meal
7 periods of at least thirty (30) minutesforeach live (5) hour work pen'od, as required bv Labor
8
I
Code section 512 and the applicable Wage Order.
9
Premium Wages
10
26. Plaintiff alleges that at all rdevant times during the applicable limitations period
11
13
and as manors of policy and pradice. Defendants have failed to pay premium wages to Non-
13
Exempt MeaJ Break Sob-Class and Exempt Meal Break Sob-Class members when tiiey
14
worked fn^e (5) hours without clocking outforany meal period.
15
Missed Second Meal Periods
1«
27. Plaintiff alleges thai at allrelevanttimesdaring die applicable limitations period
17
and as mailers of policy and practice. Defendants employed Non-Exempt Meal Break Sub-
18 class and Exempt Meal Break Sub-Class members for shifts of ten (10) or more hours
19 without providing th«n wifli second meal periods and without paying diem premium wages, as
20 required by Labor Cbde sedion S12 and die applicable Wage Order.
28. Moreover, Defendants writien policies do not provide that employees must take
211
dieirfirstmeal break before Ihe end of diefifthhour of woric, that they are entitled to a second
23
meal break if Ihey work a shift of over ten (10) hours, or that tbe second meal period must
33
commence before die end ofthe tenflt hour of work, unless waived.
34
29. At ali rdevant times, Defendantsfoiledto pay Plaintiff and NomExempt Meal
35
Break Sub-Class and Exempt Meal Break Sub-Class members additkmal premhim wages,
36
and/or were nol paid premium wages at the employees'regularratesof pay when required meal
37
jeriods were not provided.
38
30. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiff, on behalf of
II
Anma v. Health Net, bte. Oass Action Conylainl
1 hunself and die Non-Exempt Meal Break Sob-Ctass and Exempt Meal Break Sub-Oass
3 members, sedcs to recover wpaid premium wages, interest diereon, and costs of suit.
3 31. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5,
4 die substantial benefit doctrine, and/or the common fund doctrine, Plaintiff, on behalf of himself
5 and the Meal Break Sub-dass members, seeks to recover reasonable attorneys' fees.
C SECOND CAUSE OF ACTION
7 FAILURE TO PROVIDE REST PERIODS
8 (Lab. Code §§ 204,223,226.7 and 1198)
9 (Plaintiff; Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class)
10 32. Plaintiff incorporates the preceding paragraphs of the Complaint as if fUlly
11 alleged herein. Spedfically, Plaintiff incorporates paragraphs 13 and 14 ofthe Complaint as if
13 folly alleged herein.
13 33. At all rdevani times. Plaintiff and Non-Exempt Rest Break Sub*Clas8 and
14 Exempt Rest Break Sub-Class members have been non-exempt employees of Defendants
IS entitled to diefoilrest period protections of both the Labor Code and the applicable Wage
IS Order.
17 34. Section i 2 of the applicable Wage Order imposes an affirmative obligation pn
IB employera to permit and authorize employees to take rec|uired rest periods at a rate of no less
19 than ten minutes of net rest time for each four hour work period, or major portiontiiereof,that
20 must be in the middle of each work period insofor as is pradicable.
31 ' 35. Labor Code section 226.7 and sedion 12 of die applicable Wage Order both
23 imhibit employers from requiring employees to work during required rest periods and reqtnre
23 employers to pay non-exempt onployees an hour of premium wages at die employees regular
34 rate of pay, on each workday that the eroplciyee is not provided with die required rest period(s).
35 36. Compensation for missed rest periods constitutes wages within the meaning of
26 the Labor Code section 200.
27 3 7. Labor Code section 1198 makes il unlawfiil to employ a person under conditions
38 diat violate die Wage Order.
12
Arena v. Health Net. Inc Class Action CORfilaini
; 1
38. Plaintiff alleges that at rdevant times during Ihe applicable limitations period.
Defendants maintained a policy or practice of not providing membera of die Non-Exempt Rest
Break Sub-Class and Exempt Rest Break Sub-Class members widi nd rest periods of a least
ten (10) minutes for eachfour(4) hour wodc period, or major portion thereof, as required by die
5 Wage Order.
6 39. At allrelevanttimes, Defendantsfoiledto pay Plaintiff and olher Non-Exempt
7 Rest Break Sub-Chiss and Exempt Rest Break Sob-Class members additional premium
B wages when reqinred rest periods were not provided. i
9 40. Spedfically, Defendants written policies do not provide dun enqitoyees may take
10 a rest break for each four houra woriced, or major fraction tho-eof, and that rest breaks should be
11 taken in the middle of each work period insofar as practicable.
la 41. Plaintiff and die Non-Exempt Rest Break Sob-Class and Exempt Rest Break
13 Sub-Class members were not provided with rest periods of at least t«i (10) minutes for each,
14 four (4) hour work period, or major fraction thereof, due to (1) Defendants' policy of hot
15 scheduling each est period as part of each work shift; (2) chronically ondersiafiing each work
16 shift widi not enough workers; (3) imposing so much work on each employee suc;h that it made
17 it unlikely that an employee would be able to take thdr breaks if they wanted tofinishtheir
18 work on time; and (4) no formal written meal and rest period policy diat encouraged employees
19 to take their meal and rest periods.
30 42. As a result of Defendants* policy. Plaintiff and the Non>Exempt Rest Break
31 Sub-Class and Exempt Rest Break Sub-Class woeregularlynot provided widi uninteriupled
32 rest periods of at least ten (10) minutes fbr each four (4) hours worked due to complying witb
23 Defendants' productivity requirements diat required Plaintiff and Non-Exempt Rest Break
24 Sub-Class and Exempt Rest Break Sub-Class U> work through Ihdr rest periods in order to
25 complete thdr assignments on time.
26 43. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiff, on bdialf of
27 himsdf and Non-Exempt Rest Break Sob-Class aad Exempt Rest Break Snb-Ctoss
28 members, sedcs to recover unpaid premium wages, mterest thaeon, and costs of suit.
13
Arana v. Health Net, lite. Class Actkm Complaini
\
1 44. Pursuarit to Labor C^ode section 1194. Code of Civil Procedure section 1021.5,
3 the substantial benefit
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhort6n@orrick.com 3 ORRICK, HERRINGTON & SUTGLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 5 Facsimile: +1 916 329 4900 6 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 11 similarly situated. Plaintiff, DECLARATION OF TIMOTHY J. 12 LONG IN SUPPORT OF MOTION AS 13 TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION 14 Caiifomia Corporation; and Does 1 thrpugh 50, inclusive. Date: April 11,2019 15 Time: 10:00 a.m. Defendants. Dept: 35 16 Judge: Hon. Alan G. Perkins 17 Complaint Filed: April 5,2017 FAC Filed: June 29, 2017 18 19 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017 others similarly situated. Consolidated Complaint Filed: Dec. 21,2017 CO 20 Plaintiff, 21 < 22 HEALTH NET OF CALIFORNIA, INC., a 23 Caiifomia corporation; and DOES 1-50, inclusive. 24 Defendant. 25 26 27 28 DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 I, Timothy J. Long, hereby declare as follows: 2 1. I am an attomey duly admitted to practice before the courtsi of the State of 3 Caiifomia and a partner in the law firm of Orrick, Herrington & Sutcliffe LLP, attomeys of 4 record for Defendant Health Net of Caiifomia, Inc. ("HNCA"). I make this declaration on 5 personal knowledge and, if swom as a witness, could competently testify to the following.facts 6 except where otherwise indicated. 7 2. On May 11, 2017, Plaintiff Tomas Arana filed a complaint in the Superior Comt 8 of Santa Clara, but the parties stipulated to dismissal of that complaint without prejudice so that it 9 could be refiled in this Court. A true and correct copy of the parties' stipulation regarding 10 dismissal of Mr. Arana's cpmplaint, dated July 26', 2017, is attached hereto as Exhibit A. 11 3. On August 1, 2017, Mr. Arana filed suit against HNCA in this Court, purporting to 12 bring class and representative claims on behalf of all non-exempt arid certain exempt HNCA 13 employees. A tme and correct copy of Mr. Arana's complaint is attached hereto as Exhibit B. 14 4. In October 2017, Mr. Arana attempted to file a First Amended Complaint 15 containing a cause of action for civil penalties under the PAGA, but that filing was rejected by the 16 Court. A tme and correct copy of the Court's Notice to Filing Party - Retumed Documents, dated 17 October 20, 2017, is attached hereto as Exhibit C. 18 5. Pursuant to the parties' stipulation, the Court consolidated Mr. Arana's case with 19 the case filed by Plaintiff Andrea Spears against HNCA. The cases were consolidated for all 20 purposes on October 11, 2017. A tme and correct copy of the Court's order consolidating these 21 actions is attached hereto as Exhibit D. 22 6. On December 8,2017, the Court ordered that Mr. Arana and Ms. Spears could file 23 a consolidated complaint, and that Mr. Arana could "amend the allegations of his existing 24 complaint to conform to the allegations of the proposed amended complaint" that he attempted to 25 file in October 2017. A tme and correct copy of the Court's minute order is attached hereto as 26 Exhibit E. 27 7. On December 21, 2017, Plaintiffs filed a Consolidated Complaint piuporting to 28 bring class and representative claims against HNCA. A tme and correct copy of the Consolidated -2- DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION '. ~ AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 Complaint is attached hereto as Exhibit F. ^ 2 8. OnOct6ber23, 2018, the Court granted HNCA's motion for summary 3 adjudication on certain claims, including Plaintiffs' rounding claims and shift differential claims. 4 A tme and correct copy of the Court's order granting summary adjudication is attached hereto as 5 Exhibit G. 6 9. HNCA filed a renewed motion for summary adjudication on November 20, 2018, 7 on Plaintiffs' claims that certain bonuses and cash payments should have been included in their 8 regular rate for purposes of calculating overtime compensation. See Mem. Points & Authorities 9 ISO Renewed Mot. for Summ. Adj., Nov. 20, 2018. 10 10. On December 3, 2018,1 deposed Mr; Arana in this matter. A tme and correct 11 copy of the relevant portions of Mr. Arana's deposition transcript are attached hereto as 12 Exhibit H. 13 I declare under the penalty of perjury under the laws of the State of Caiifomia and that the 14 foregoing is tme and correct. Executed this 21st day of December, 2018, at Sacramento, 15 Caiifomia. 16 17 18 19, 20 21 22 23 24 25 26 27 28 -3- 4152-9522-5881.2 ^ DECLARATION OF TIMOTHY J. LONG IN SUPPORT OF MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION EXHIBIT A JOINT STIPULATION This Joint Stipulation ("Stlpulatioa") is made and entered into by and between Tomas R. Aiana ("PlaintifF'), Health Net, Inc. ("HNF) and Health Net of Califoinia, Inc. ("HNCA"). Plainti£f, HNI and HNCA are sometimes collectively referred to as the "Parties." A. WHEREAS, Plaiotiif filed a class action complaint against HNI in the Superior Court of Caiifomia. County of Santa Clara, Case No. 17CV309964, on May 11.2017 ("Original Complaint"). A true and correct copy of the Original Complaint is attached hereto as Exhibit A; B. WHEREAS, the Original Complaint alleges: (i) failure to provide meal periods; (ii) failure to prcfvide rest periods; (iii) failure to pay hourly wages; (iv) failure to provide accurate written wage statement; (v) failure to timely pay all final wages; and (vi) unfah- competition (the "Claims'^; C. WHEREAS, it was Plaintiff's intention to amend the Original Complaint to include penalties under Labor Code 2698, et. Sec. D. WHEREAS, Plaintiffis currently employed by HNCA. E. WHEREAS, HNCA warrants that it assumes HNI's obligations and liabilities, if any, for purposes ofthe Claims alleged by Plaintiff in tbe Original Complaint and that, as such, HNCA is the proper party defendant for the entire class period pled in the Original Complaint; F. WHEREAS, the Parties are willing to enter into this Stipulation upon the terms and conditions set forth below; - NOW, THEREFORE, for good and sufficient consideration, the receipt of which is hereby acknowledged, IT IS STIPULATED as follows: 1. Dismissal; Plaintiff will file a request to dismiss his Original Complaint against HNI without prejudice on or before July 28,2017. 2. Corrected Complaint: PlaintifT will file a complaint in tbe Superior Court of Caiifomia for the County of Sacramento alleging the Claims against HNCA ("Corrected Complaint") by August 4,2017. 3. Tolling: The statute ofUmitations applicable to the Claims alleged in the Corrected Complaint for Plaintiff (and any penalties pursuant to Labor Code 2698, et. Sec.) and the putative class will be tolled from the date of thefilingof the Original Complaint, May 11, 2017. The relevapt time period at issue in the Corrected Complaint with respect to the Claims shall include any and all workweeks during which Plaintiff and the putative class performed work for HNI and/or HNCAfiromMay 11,2013 to the presenL This Stipulation does not apply to any allegations other than the Claims. 4. Aflirmarivc Defenses: Notwithstanding Paragraph 3 above, neither HNI nor HNCA waives any applicable Affirmative Defenses with respect to the Original Complaint or tbe Corrected Complaint. Page 1 ofl j 0)ISUSA:76698i5«5,4 5. Modification: This Stipulation can be modified only in a writing signed by the Parties. This Stipulation shall constitute the entire understanding between the Parties coaceming the subject matter ofthis Stipulation and siqwisedes and replaces all prior negotiations, proposed agreements, and agreements, written or oral, relating to this subject. 6. Governing Law; This Stipulation shall be govemed and constmed and enforced in accordance with the laws of the State of Caiifomia. 7. Execution of Counterparts; Separate counteiparts of this Stipulation may be executed bytfieParties with the same force and effect as if all such Parties had executed a single copy of this Stipuladon. 8. Authority to Bindt Each Counsel executing this Stipulation represents and warrants that he or she has been authorized to enter intotiiisStipulation on behalf of the party on whose behalf he or she has signed and that he or she has fiill and complete authority to do so. Dated: July Z^, 2017 SETAREH LAW GROUP Attomeys for Plaintiff, TOMAS R. ARANA Dated: July ^ 20 i 7 ORRICK, HERRINGTON & SUTCLIFFE LLP By:_ STEPHANIE GAIL LEE Attomeys for HEALTH NET, INC. and HEALTH NET OF CALIFORNIA, INC. Page 2 ofl OHSUSA;7669865£S.4 Shaun Sf^areh (SBN 204514) E-FILED sbaun@setardilaw.com 5^11/2017 8:46:24 AM Clerk of Court Thomas Segal (SBN 222791) Superior Court of CA, 3 thomaB@setarehlaw.com County of Santa Clara SETAREH LAW GROUP ' 4 17CV309964 9454 Wilshire Boulevard, Suite 907 Reviewed By:R. Walker 5 Beverly Hills, California 90212 Telephone (310) 888-7771 S JFacsMnile (310) 888-0109 7 Attorn^forPlaintiff, e TOMAS R. ARANA 9 10 SUPERIOR COURT OP THE STATE OF CALlFORI!nA 11 FOR THE COUNTY OF SANTA CLARA 13 UNLIMITED JURISDICTION 13 . 14 17CV309964 TOMAS R. ARANA, on behalf of himself, all Case No. IS others similady situated, \ CLASS A^TTION 16 Plaintiff, COMPLAINTFOR: vs. 18 1. Failure to Provide Meal Periods (Lab. HEALTH NET, INC., a Delaware Code §§ 204,223,226.7, SI2, and 1198); 19 corporation; and DOES 1-SO, inclusive, 2. Failure to Provide Rest Periods (Lab. Code §§ 204,223,226.7, and 1198); 20 3. Faihire to Pay Houriy Wages (Lab. Cbde Defendants. 21 §§ 223,510.1194,1194.2,1197,1997.1. and J198); 23 4. FailuTB to Provide Accurate Written Wage Statements (Lab. Code § 226(a)); 23 5. Failure lo Timely Pay All Final Wages 34 (Lab. Code §§201-203); 6. Unfair Competition (Bus. & Pmf Code §§ 2S I7200,£(^.); 26 JURY TRL\L DEMANDED 27 28 A rami r. Health Net, Inc. Class Aclion Complaini 1 Plaimiir, Tomas R. Arana (referred to as "Plaintiff'), on behalf of himsdf, all others 3 similarly situated, complains and alleges as follows: 3 INTRODUCTION 4 I. Plaintiff brings this class action against defendant Health Net. Inc.. a Delaware S corporatiofl (refened lo as "Health Net") and Does 1 through 50, inclusive (collectively refmed 6 to as "Defendants") for alleged violations ofthe Labor Code and Business and Professions 7 Code. As set forth bebw, Plaintiff alleges that Defendants failed to provide him and all other 8 similarly situated individuals with meal periods, failed to provide them with rest periods, failed 9 to pay premium wages for missed meal and/or rest periods, failed to pay them for all hours 10 worked, failed to pay overtime wages at the correct rate, failed to pay double time wages at the 11 correct rate, failed (b prhvide them with atcurate written wage statements, and faOed to timtSy 12 pay them all of their final wages following separation of employment. PlaintifF also alleges that 13 Defendants misdassified him and all simiiariy situated individuals as exempt employees when 14 they were, in fact, non-exempt employees who were enutled to meal and rest periods and 15 overtime compensation. Based on these alleged violations. Plaintiff now brings this class and 16 representative action to recover unpaid wages, restitution, and related reKef on behalf of 17 limself, all others simiiariy situated. 18 JURISDICTION AND VENUE X9 2. This Court has subject matto- jurisdiction to hear this case because Plaintiff is 30 informed and believes, and based thereon alleges, Aat the monetary damages and restitution sought 21 lereinforDeftndmits' conduct exceedsfyeminimal jurisdictional limits of the Superior Court. 33 3. Venue is proper in Santa Clara County pursuant lo Code of Civil Procedure 23 sections 39S(a) and 395.5 in that liability arose in Santa Claia County because at least some of die 24 transactions that are the subject mano- of this Complaint occunnd therein and/or each defendant is 25 bund,roaintaiosoffices, transacts business, and/or has an ageiit therein. 2£ PARTIES 27 5. Defendant Health Net, Inc. is a Delaware corporation authorized to do business 28 in Caiifomia. /4rawi V. Health Net, Inc. Class Acikm Complaini 1 6. Plaintiff is ignorant of the true names, capacities, relationships, and extent of 2 participation in the conduct alleged herein, of the DefoMlante sued as Does I -50, inclusive, but 3 is informed and believes diat said Defendants are l^Ily responsible for the conduct alleged « herein and therefore sues diese Defendants by such fictitious names. Plaintiff will amend this 5 complaint to allege both the true names and capacities of the Doe Defendants when ascertained. 6 7. Plamtiff is informed and believes that each Defendant acted in all respects 7 pertinent to this action as Ihe agent of Ihe other Defendants, carried out a joint scheme, business 8 plan or policy in all respects pertinent hereto, and that the ads of each Defendant are legally 9 attributable to each of the other Defendants. 10 CLASS ALLEGATIONS 11 8. This action has been brought and may be loaintained as a class action pursuant to 12 Code of Civil Procedure section 382 becaise there is a well-defined community of interest IJ among the persons who comprise the readily ascertainable classes defined below and because 14 Plaintiffis unaware of my difficulties likely lo be encountered in managing this case as a dass IS action. le 9. Relevant Thne Period: The relevant time period is defined as the time period 17 )eginning four years prior to the filing of this action until judgment is entered. 18 10. The dass and sub-clus members are defined as follows: 19 Non-Eitcmpt Class; All persons employed by Defendants and/or any staffing agencies and/br any other third parties who woriced in a call center in honriy or 30 non-exempt positions in Caiifomia during the Relevant Time Period. 31 Non-Exempt Meal Period Sab^lMs; Ail Non-Exempt Class members who woriced a shift in excess of five hours during the Relevant Time 32 Period. 23 Non-Exempt R«t Perliwi Sub-Class: Ail Non-£xempt Class monbers who woriced a shitt of at least threeand one-half (3.5) hours during the 24 Relevant Time Period. 2S Non-Exempt WaEe Statement Pcnalttes Snb-Clas^; All Non-Exempt diass members employed by Defendants in Caiifomia during the period 26 beginning one year before the filing of Ihis acticm and ending when final juogment is entered. 37 28 Amm V. Hailih Net, Inc. Class Action Complaint Non-Exempt Watting Time Penalties Sub-Class: All Non-Exempt Class membere who separatedfromtheir employment witb Defendants during the period beginning three years before the filing of this action and ending when final judgment is entered. Exempt : All persons emidoyed by Defendants and/or any stafBng 4 agencies i w any other third parties in CaUfomia as a Business Anal)«t, . , 5 Systems Analyst, Contact Center Analyst or Analyst during the Relevant Time Perlbd. E Exempt Meal Period Sub-Qara; All Exempt Class members who worked a shift in excess of Qve, hours during the Relevant Tine Period. 7 Exenint Rest Pytod Swb-Ciass; All Exempt Class members who 'a worked a shift ot at least three and one-half (3.5) hours during the Relevant Time Period. 9 Exempt Wage Statemmt Pea^tles Snb-Claips: All Exempt Class 10 members employed by Ifefendants in Caiifomia during the period beginning one year before the filing of this adion and ending when imal 11 judgment is entened. 12 Exeatipt Waiting Time Penalties Sub-Class; All Exempt Class members who separatedfromthdr employment widi Defendants during 13 the period begiimmg three years before thefilingof this action and ending wiien final jiragmcnt is entered. 14 Rdnndine Class; All persons employed by Oefetidants and/or any staffing IS 16 aendes and/br any other third parties in Caiifomia whose hours worked were feded by Defendants' rounding practices during the Relevant Time Period. UCL Oass; All Non-Exempt Class, Exempt Class and Rounding Class 17 members employed by Defotidants in Caiifomia during the Rdevant Time Period. 18 19 11. Reservation ef Riehts; Pursuantto Rule of Court 3.765(b), Plaintiff reserves 30 therightto amend or modify die class definitions with greater specificity, by further division 21 into subO-dasses, and/or by Ihnitation to particular issues. 22 12. Numerosity; The class members are so numerous that the individual joinder of 23 each individual class member is hnpiadical. While Plaimiff does not currently know the exad 24 number of class members, Plaindff is infoimed and bdieves that the actual number exceeds die 25 minimun) required for numerosity under Caiifomia law. 2« 13. CommonaHtv snd Predomtnancct Common questions oflaw and fad exist as 27 to all dass members and predominate over any questions which affed only individual class 28 members. These common questions include, but are not limtted to; Arana v. Henlth Net, Inc. Class Action Complaint 1 Whether Defendants maintained a policy or practice of failing lo provide 2 employees with their meal poiods; 3 Whether Defendants maintained a policy or practice of failing to provide B. 4 employees with their test periods; 5 C. Whether Defendantsfoiledto pay premium wages to class members 6 when they have not been provided with required meal and/or rest periods; 7 Whether Defendantsfoiledto pay minimum and/or overtime wages to 8 class membtts as a result pf polides that fail to provide meal periods in 9 accordance with Caiifomia law? 10 Have Ddbndants used payroll formulas that systematicallyfoilto account 11 for non-discretionary bonuses and/or other applicable remuneration when 12 calculating regular rates of payforclass members? 13 F. Have Defendants failed to pay overtime wages to dass in embers as a 14 r^lt of incorrectly calculating their regular rates of pay? IS Whether Defendants have failed to pay premium wages to class members IS based on their respective "regular rates of compensation" by not 17 including commissions and/or income in calculating fhe rates at which 18 those wages are paid? 19 H. Whether Defendantsfiuledto provide class members with accurate 20 written wage statonents as a result of providing them with written wage 31 statemems with iaaccurate entries for, among odier di/ngs, amounts of 32 gross and nd wages, and lotal liours worked; 33 Whether Defendants applied polides or pradices thai result in late and/or 24 incomplde final wage payments; 25 Whdher l>efendants are liable to class members for waiting time 26 penalties undo- Labor Code section 203; 37 Whether class members arc entitied to restitution of money or property 28 that Defendants may have acquiredfipomthem through unfair tAnmo V. Health Net, Inc. Class Aclion Complaint compdition. | 14. Tvoicglltv; Plaintiffsdaimsaietyincalof die other class members'claims. Plaintiff is informed and believes and thereon alleges that Defendants have a policy or practice offoilingto comply with the Labor Code and the Business and Professions Code as allied 5 herein. < ^ i 6 15. Adeoaacv of Class Representative; Plaintiff is an adequate dass representative 7 in that he has no interests that are adverse to, or otherwise conflict with, Ihe interests of absent 8 class members and is dedicated to vigorously prosecuting this action on thdr bdialf. Plaintiff 9 willfoiriyand adequately represent and proted the interests of the other class memben. 10 16. Adequacy of Class Connsel; Plaintiffs counsd are adequate dass counsel in 11 that they have no known conflicts of interest with Plaintiff or absent class members, are 13 experienced in wage and hour dass adion litigation, and are dedicated to vigorously 13 prosecuting this action on bdialf of Plaintiff and absent class members. 14 17. Superiority; A dass action is vai^y superior to other available meansforfair is and efficient adjudication of ihe dass members' claims and would be beneficial to the parties 16 and the Court. Class action treatment will allow a numberof similarly situated persons to 17 simultaneously and eflidemly prosecute thdr common daims in a sin^efonunwithout Ihe 18 unnecessary duplication of effort and expense that numerous individual actions would entail. In 19 addition, the monetary antounts due to many individual dass members are likely to be relativdy 30 small and would thus make it difficult, if uot.impossibl^^for individual dass members to bodi 31 seek and obtain relief Moreover, a dass adion will serve an important public interest by 33 permitting class members lo effedivdy pursue Ihe recovery of moneys owed to them. Further, 33 a class aclion will prevent the potentialforinconsistent or contradictory judgments inherent in 24 individual litigtf ion. , 25 GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 26 18. Plaintiff was hired by Defendants on or about Fdiniary 25,2008 as a hourly, 27 non-exempt employee who worked at a caii center in California^ 2B 19. On or about November 16,2015, Plaintiff was promoted to a salary, exempt Arana v. Heatth Na, Inc Class Action Complaiat 1 position. 3 Clocic In Process 3 20. Plaintiff and putative dass was trained to dock in for each woric shift using die 4 desktop computer assigned to them. Plaintiffand the putative c l ^ were required to first tum s on thdr computer and wait for it to load; ll generally look proximately five to tea minutes for 6 it lo boot up to the Windows log in prompt. 7 21. Afio* Plaintiff and the putative class entered their useniame and password, Uieir B computer would proceed to load to the develop while other programs were started in the 9 background automatically as part of (he normal boot up process. It generally took another five 10 to ten minutes fbr it to complete the entire boot up cycle. 11 22. Occasionally, Plaintiff and the putative class would encounter login errors or 13 computer oashes that would require them to restart the entire boot up fnxicess. The entire time 13 spent booting tip the computer would not be accurately recorded and therefore resuhed in 14 Plaintiff and the putative class not bdng paid for all tmurs worked while waiting for the IB computer die boot up: 16 23. After the computer successfidly booted up. Plaintiff and die putative dass would 17 le required to log in U> other programs such as CareMark, CSI and Marks. ' IS 24. After logging into the above-reforenced programs, PlainliflPand^the putative class 19 would finally log in to a program called "Convergence" which is the program that is used by all 20 the call center employeesformaking and receiving customer service calls. It is only upon 21 bgging^mto Convergence will an employee be recognized as being "clocked in" by Defendants, 32 which is dietimerecognized as the actual starttimefor each workday and when Plaintiff and 23 the putative dass would begin to be paid by Defendants. 24 25. Accordingly, by the time Plaintiff and die putative class logged into 25 Convergence, fifteen to thirty minutes,or more may have already passed - ali of whicdi were not 26 iroperly recorded as time woriced and whicA resuhed in Plaintiff and the putative class not 27 being paid for all hours worked by Defendants. 38 HI Aram V. Health Net. he. Class Acfion Complaim Clock Out Process 3 26. Simiiariy, upon docking outforeadi work shift, Plaintiff and the putative class 3 were required to shutdown their compilers by foltowing a sequence of stqis. First, they were 4 retjuired to log out of (Convergence. Upon logging out of Convergence, eadi employee was 5 deemed to be "docked out," which is the tune recognized as die adual endtimefor each 6 workday and when Plaintiff and the piMative class would stop bdng paid by Defendants. 7 27. After logging out of Convergence, Plaintiff and the putative dass would then log 8 out of Ihe other programs they had open during thdr work shift. After all Ihe programs were 9 shutdown, they would dien shut down the computer. 10 28. Accordingly, after Plaintifif and the putative class iosged out of Convergence, 11 th^ were required to spend approximately five to ten minutes to shut down other programs and 13 die computer <- all of which were not properly recorded as lime worked and which resulted in 13 Plaintiff and the putative class not bdng pddforall hours woriced by Defendants. 14 MisdassiflcalioB as Exempt Employee 15 6. Plaintiff and the putative dass were also misdassified as exempt employees 16 when in fact they were non-exdnpL PlaintifT and the putative dassregularlyworked more than 17 eight hours each workday, and more than forty hours eadi workweek. Plaintiff and the putative 18 class were paid afixedsalaiy regardless ofthe hours Ihey worked and were not paid any 19 overtime compenation. < 20 7. Plaintiff and the putative dass did not perform duties, more thanfiftypcjxent 21 (50%) of thetime,diat would qualify them as exempt employees under the Professional, 23 Executive or Admmistrative exemptions. Accordingly, Plaintiff and the putative dass were 33 entitied to all tbe protections afforded to them as non-exempt empfoyees under Caiifomia law. 24 8. As a result of bdng misdassified as an exempt employee, the time spent by 25 Piaintiff and the putative class were not accurately recorded by the timekeeping system utilizoi 36 by DcfbidantB and dierefore resulted in thefoilureto pay Plaintiff and the putative dassforall 27 hours adually worked and overtime compensation. 28 /// Anna v. Health Net, Inc. Class Action Complaini Improper Rounding Practices 9. Moreover, begioniog Jamiary 1,2017, Defendants began lo utilize a munding practice that required Plaintiff and Ihe putative class to round thdr start times to the next hour. 4 For example, if an employee was scheduled to work at 9:00 a.m., that onployee bad a six 9 minute grace period to clock in for their shift by thattime,iftin'semployee attempts to clock in 6 after die expiration of the grace period, die employee's start time would beroundedto the next 7 hour which would be 10:00 a.m. even though the mployee mromoiced work at 9:10 a jn. 8 10. Plaintiff is informed and bdieves, and thereupon alleges, that Defendants have 9 not, did not, and do not keep records of actual hours worked by Plaintiff and the putative class. 10 In the absence ofreconisshowing actual hours worked, Plaintiff and the putative class are 11 unable to ascertain whether (1) Defemiants*roundingpradices comply with CaKfomta law; (2) 12 whether Defendants'roundingpractices resulted over a period oftime,in failure lo compensate 13 Plaintifr and the putative class properiy for all tho time they actually worked; and (3) whdher 14 Plaintiff and the puUitive class were properly paidforall hours worked. IS Missed Meal Periods 16 11. Plaintiff and the putative class members were not provided with meal periods of 17 at least thirty (30) minutes for each five (5) hour work period due to (I) Defendants' policy of 18 not sdieduling each meal period as part of each work shifl; (2) chronically understaffing each 19 work shift widinot enough workera; (3) iinposing so much work on each employee such that it 20 made it unlikely that an employee would be able to take ihdr breaks if they wanted to finish 21 thdr work on tmie; and (4) no formal written meal and rest period policy that encouraged 22 employees to take their meal and rest periods. 33 12. As a result of Defendants' policy, Plaintiff and the putative class were riegulariy 34 not provided with unintenupted meal periods of at least thirty (30) minutes for eadifive(5) 35 lours worked due to complying vrith Defendants' productivity requirements that required 26 Plaimiff and the putative class to work dirough didr meal periods in order to complete didr 27 assignmenui on time. 38 /// Arena ¥. Hailih Na. Inc Class Action Complaiat Missed Rest Periods 13. Plaintiff and die putative class members were not provided v/\th rest periods of at least ten (10) minutes for each four (4) hour work period, or majorftaetionthereof, due to (1) Defendants' policy of not scheduling each est period as part of each woric shift; (2) chronically understafSng each work shift with not enough workers; (3) imposing so much work on each employee such that it made it unlikely that an employee would be able to take their breaks if they wanted to finish didr work ontime;and (4) no formal writien meal and rest period policy that encouraged employees to take their meal and rest pen'ods. 9 14. As a result of Defendants' policy, Plaintiff and tbe putative class were regulariy 10 not provided with uninterrupted rest periods of at'least ten (10) minutes for each four (4) hours 11 worked due to complying vnth Defendants' productivity requireinents that required Plaintiff and 12 the putative class lo work through iheii- rest periods in order to complete thdr assignments on 13 time. 14 Regular Rate of Pay 15 15. The regular fate of pay under Caiifomia law includes all remuneration for 16 einployment paid to, on bdialf of, the employee. Tliis requirement indudes, but is nol limited, 17 to, commissions arui non-discretionary bonuses. 18 16. During the applicable limitations period, Defendants violated therightsof 19 Plaintiff and the putative class under the above-referenced Labor Code sections by failing to pay 20 diem overtime wagesforall overtime hours woriced in violation of Labor Code 510,1194, 21 and 1198 as a result of not coiredly calculating thdr regularrateof pay to indude all applicable 22 remuneration, including, but not limited to, non-discretionary bonuses and/or shift differential 33 pay- I 24 FIRST CAUSE OF ACTION 23 FAILURE TO PROVIDE MEAL PERIODS 26 (Lab. Code §§ 204,223,226.7,512 and 1198) 27 (Plaintiff, Non-Exempt Meal Break Sub-Class, Exempt Meal Break Sub-Class) 28 17. Plaintiff incorporates die preceding paragraphs ofthe Complaint as if folly Amnn c. Henlth N«l. Inc. Oass Aclion Complaint alleged herein. Spedfically, Plaintiff incorporates paragraphs i I and 12 ofthe Complaini as if fully alleged herdn. 18. At allrelevanttimes, Plaintiff and die Non-Exempt Meal Break Sub-Class and Exempt Meal Break Sub-Chiss members have been non-exempt employees of Defendants entided to die fiill meal period protedions of both the Labor Code and die Indusuial Wdfare Commission Wag^ Order 5-200 I f Wage Order")' 19. Labor Code sedion 512 and section 11 of the applicable Wage Order impose an affirmative obligation on employes to provide non-exempt employees with uninterrupted, duly- 9 free, meal periods of at least diirty minutesforeach work period offivehours, and to provide 10 Ihem with two uninterrupted, duty-free, meal periods of at least thirty minutes Um each work 11 period often hours. 13 20. Labor Code section 226.7 and section 11 of the the applicable Wage Order both 13 prohibit employers from requiring employees to woik during required meal periods and require 14 employers to pay non-exempt employees an hour of premium wages on each workday that the IS employee is not provided with the required meal period. 16 21. Compensationformissed meal periods constitutes wages within tbe meaning of 17 the Labor Code section 200. ^ IB 22. Labor Code section 1198 makes it unlawfol to employ a person under conditions 19 tiiat violate the Wage Order. 30 23. Sedion 11 of the af^ltcable Wage Order states: 21 "No employer shall employ any person for a work period of more than frve (5) hours wtdiout a meal period of not less diaa 30 mninutes, except that when a work period of 33 not more than six (6) hours will complete the day's work the meal period may be waived by mutual consent of the emptoyer and employee. Unless the employee is rdieved of all 33 duty during a 30 minute meal period, the meal period shall be considered an "on dut/* meal period and counted as time woiked. An "on duty" meal paiod shall be permitted 34 only when the nature of the work prevents an employee from bdngrelievedof all duty and when by written agreement between the parties an on-the-job paid meal period is 35 agreed lo. The written agreement shall stale that die employee may, in writing, revoke the a^Tcement at anytime."8 Cal. Code Regs. § 11040(11). 26 27 24. At all rdevani times, Plaintiffwas not subject to a valid on-duty meal period 28 agreement. Plaintiff is informed and believes that, at all rdevanttimes,Non-Exempt Meal 10 Arana v. Health Net. Inc. Class Action ComphHrt X Break Sub-Class and Exempt Meal Break Snb-Oass members were not subject to valid on- 3 duty nieal period agreements with Defendants. 3 Unprovided Meal Periods 4 25. Plamtiff alleges durt, atrelevanttimesduring the applicable limitations period. 9 Defendants maintained a policy or practice of not providing Plaintiff and members of the Non- 6 Exempt Meal Break Sub-Class and Exempt Meal Break SulK^Iass with uninterrupted meal 7 periods of at least thirty (30) minutesforeach live (5) hour work pen'od, as required bv Labor 8 I Code section 512 and the applicable Wage Order. 9 Premium Wages 10 26. Plaintiff alleges that at all rdevant times during the applicable limitations period 11 13 and as manors of policy and pradice. Defendants have failed to pay premium wages to Non- 13 Exempt MeaJ Break Sob-Class and Exempt Meal Break Sob-Class members when tiiey 14 worked fn^e (5) hours without clocking outforany meal period. 15 Missed Second Meal Periods 1« 27. Plaintiff alleges thai at allrelevanttimesdaring die applicable limitations period 17 and as mailers of policy and practice. Defendants employed Non-Exempt Meal Break Sub- 18 class and Exempt Meal Break Sub-Class members for shifts of ten (10) or more hours 19 without providing th«n wifli second meal periods and without paying diem premium wages, as 20 required by Labor Cbde sedion S12 and die applicable Wage Order. 28. Moreover, Defendants writien policies do not provide that employees must take 211 dieirfirstmeal break before Ihe end of diefifthhour of woric, that they are entitled to a second 23 meal break if Ihey work a shift of over ten (10) hours, or that tbe second meal period must 33 commence before die end ofthe tenflt hour of work, unless waived. 34 29. At ali rdevant times, Defendantsfoiledto pay Plaintiff and NomExempt Meal 35 Break Sub-Class and Exempt Meal Break Sub-Class members additkmal premhim wages, 36 and/or were nol paid premium wages at the employees'regularratesof pay when required meal 37 jeriods were not provided. 38 30. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiff, on behalf of II Anma v. Health Net, bte. Oass Action Conylainl 1 hunself and die Non-Exempt Meal Break Sob-Ctass and Exempt Meal Break Sub-Oass 3 members, sedcs to recover wpaid premium wages, interest diereon, and costs of suit. 3 31. Pursuant to Labor Code section 1194, Code of Civil Procedure section 1021.5, 4 die substantial benefit doctrine, and/or the common fund doctrine, Plaintiff, on behalf of himself 5 and the Meal Break Sub-dass members, seeks to recover reasonable attorneys' fees. C SECOND CAUSE OF ACTION 7 FAILURE TO PROVIDE REST PERIODS 8 (Lab. Code §§ 204,223,226.7 and 1198) 9 (Plaintiff; Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class) 10 32. Plaintiff incorporates the preceding paragraphs of the Complaint as if fUlly 11 alleged herein. Spedfically, Plaintiff incorporates paragraphs 13 and 14 ofthe Complaint as if 13 folly alleged herein. 13 33. At all rdevani times. Plaintiff and Non-Exempt Rest Break Sub*Clas8 and 14 Exempt Rest Break Sub-Class members have been non-exempt employees of Defendants IS entitled to diefoilrest period protections of both the Labor Code and the applicable Wage IS Order. 17 34. Section i 2 of the applicable Wage Order imposes an affirmative obligation pn IB employera to permit and authorize employees to take rec|uired rest periods at a rate of no less 19 than ten minutes of net rest time for each four hour work period, or major portiontiiereof,that 20 must be in the middle of each work period insofor as is pradicable. 31 ' 35. Labor Code section 226.7 and sedion 12 of die applicable Wage Order both 23 imhibit employers from requiring employees to work during required rest periods and reqtnre 23 employers to pay non-exempt onployees an hour of premium wages at die employees regular 34 rate of pay, on each workday that the eroplciyee is not provided with die required rest period(s). 35 36. Compensation for missed rest periods constitutes wages within the meaning of 26 the Labor Code section 200. 27 3 7. Labor Code section 1198 makes il unlawfiil to employ a person under conditions 38 diat violate die Wage Order. 12 Arena v. Health Net. Inc Class Action CORfilaini ; 1 38. Plaintiff alleges that at rdevant times during Ihe applicable limitations period. Defendants maintained a policy or practice of not providing membera of die Non-Exempt Rest Break Sub-Class and Exempt Rest Break Sub-Class members widi nd rest periods of a least ten (10) minutes for eachfour(4) hour wodc period, or major portion thereof, as required by die 5 Wage Order. 6 39. At allrelevanttimes, Defendantsfoiledto pay Plaintiff and olher Non-Exempt 7 Rest Break Sub-Chiss and Exempt Rest Break Sob-Class members additional premium B wages when reqinred rest periods were not provided. i 9 40. Spedfically, Defendants written policies do not provide dun enqitoyees may take 10 a rest break for each four houra woriced, or major fraction tho-eof, and that rest breaks should be 11 taken in the middle of each work period insofar as practicable. la 41. Plaintiff and die Non-Exempt Rest Break Sob-Class and Exempt Rest Break 13 Sub-Class members were not provided with rest periods of at least t«i (10) minutes for each, 14 four (4) hour work period, or major fraction thereof, due to (1) Defendants' policy of hot 15 scheduling each est period as part of each work shift; (2) chronically ondersiafiing each work 16 shift widi not enough workers; (3) imposing so much work on each employee suc;h that it made 17 it unlikely that an employee would be able to take thdr breaks if they wanted tofinishtheir 18 work on time; and (4) no formal written meal and rest period policy diat encouraged employees 19 to take their meal and rest periods. 30 42. As a result of Defendants* policy. Plaintiff and the Non>Exempt Rest Break 31 Sub-Class and Exempt Rest Break Sub-Class woeregularlynot provided widi uninteriupled 32 rest periods of at least ten (10) minutes fbr each four (4) hours worked due to complying witb 23 Defendants' productivity requirements diat required Plaintiff and Non-Exempt Rest Break 24 Sub-Class and Exempt Rest Break Sub-Class U> work through Ihdr rest periods in order to 25 complete thdr assignments on time. 26 43. Pursuant to Labor Code sections 204,218.6 and 226.7, Plaintiff, on bdialf of 27 himsdf and Non-Exempt Rest Break Sob-Class aad Exempt Rest Break Snb-Ctoss 28 members, sedcs to recover unpaid premium wages, mterest thaeon, and costs of suit. 13 Arana v. Health Net, lite. Class Actkm Complaini \ 1 44. Pursuarit to Labor C^ode section 1194. Code of Civil Procedure section 1021.5, 3 the substantial benefit