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1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW L L P ^ ^ ^ ^ ^ ' ^ ^ ^ "
Norman B. Blumenthal (State Bar #068687) nninMaoon DM U9
2 Kyle R. Nordrehaug (State Bar #205975) 2018 HAK -^U Vn
Aparajit Bhowmik (State Bar #248066) ...... QRNiA
3 Victoria B. Rivapalacio (State Bar #275115) ^ ' ^ ^ S E Y I I T S / ^ ^ TO'
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
6 Attomeys for Plaintiff
7
8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
12
13 ANDREA SPEARS, an individual, on Case No. 34-2017-00210560-CU-OE-GDS
behalf of herself ana on behalf of all
14 persons similarly situated. CLASS ACTION
15
Plaintiff, PLAINTIFF'S NOTICE OF MOTION
16 AND MOTION TO COMPEL FURTHER
vs. RESPONSES TO SPECIAL
17 INTERROGATORIES; MEMORANDUM
HEALTH NET OF CALIFORNIA, IN SUPPORT; DECLARATION OF
18 INC., a Califomia Corporation; and VICTORIA B. RIVAPALACIO IN
Does 1 through 50, Inclusive, SUPPORT
19
20 Defendants. Telephone Appearance
21 Hearing Date: April 16, 2018
Hearing Time: 9:1)0 a.m.
22 Judge: Raymond M . Cadei
Dept.: 54
23 Action Filed: April 5, 2017
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
Filed by Fax
TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
2 Please be advised that on April 16, 2018 at 9:00 a.m. in Department 54 of the above entitled
3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF
4 CALIFORNIA, INC. ("Defendant") to provide further responses to Plaintiffs Special Interrogatories,
5 Set One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of the Superior
6 Court of Califomia, County of Sacramento.
7 This motion will be made pursuant to Code of Civil Procedure Section 2030.300 on the grounds
8 that the said interrogatories are relevant to the subject matter of this action and that Defendant's
9 objections are improper and without merit. The motion will be based upon this notice of motion and
10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B.
Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case
12 and such oral and documentary evidence as may be presented at or before the hearing of this motion.
13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this
14 matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative rulings
15 for the department may be downloaded off the court's website. If the party does not have online
16 access, they may call the dedicated phone number for the department as referenced in the local
17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the
18 hearing and receive the tentative ruling. Ifyou do not call the court and opposing party on the
19 court day before the hearing, no hearing will be held.
20
21 Dated: March 20, 2018 BLUME^JTH/^L ^ORDREHA^p BHOWMIK DE BLOUW LLP
i
22
23 By:
Victoria B. Rivapalacio, Esq.
24 Attomeys for Plaintiff
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 I. INTRODUCTION
2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Spears") asserts causes of actions based on
3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time
4 worked, in violation of the California Labor Code. Plaintiff brings this case on behalf of a class of former
5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the
6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's
7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's
8 policies that agreed to pay premiums for breaks documented as missed in the time records.
9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly
10 calculate the Class Members' regular rate of pay by failing to have a payroll mechanism that included
11 certain cash payments in the calculation of the overtime rate of pay for these employees.
12 The discovery requests at issue here seek (1) information to establish the number and ascertain
13 the membership ofthe class of employees who were subject to the overtime miscalculation (Rog Nos.
14 6-7); (2) Defendant's pay codes and types of compensation used to pay the class (Rog Nos. 11-12, &
15 14); (3) the Bates numbers of the meal period policies for which Defendant produced documents
16 instead of answering the interrogatory response (Rog Nos. 15-16); (4) the numbers of meal period
17 premiums paid (Rog No. 19); and (5) Class Members' job duties (Rog No. 18). Defendant has refused
18 to cooperate with providing sufficient responses despite their clear relevance to class certification.
19 For example. Defendant refuses to identify the pay codes used by Defendant on Class Members'
20 wage statements or even to identify ali forms of compensation Class Members were eligible to receive. This
21 information is indisputably relevant in a wage and hour class action, particularly when, as here, the
22 allegations include failing to properly include non-discretionary wages in the calculation of the regular rate.
23 As a further example, Defendant refuses to provide the number of meal period premiums it has paid to Class
24 Members, despite clear precedent demonstrating the direct relevance of such infonnation: "the fact that only
25 a few missed meal premiums were actually paid relative to the total number of missed meal breaks... reflects
26 a common practice by [a defendant] of failing to compensate employees for hours worked and constitutes
27 common proof of liability." y4/6em v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388,418 (2015).
28 That Defendant has objected to providing the at-issue discovery and then cited it in its recently filed
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 motion for summary adjudication ("MSA") is evidence of the appropriateness of the discovery, the ease by
2 which it can be gathered, and, also, the purpose of Defendant's tactics of obstruction. Because the resolution
3 of this discovery dispute was delayed, Defendant gained for itself the unfair advantage of rushing
4 Defendant's filings to the front of the line. The classwide payroll data that Defendant seeks to withhold from
5 Plaintiff and, indeed, claims Plaintiff should be punished for seeking,' is actually the same information
6 Defendant unilaterally gathered and used for Defendant's own benefit in filing the MSA. Because Plaintiff
7 agreed to Defendant's proposal to withdraw the prior pending motions to compel, Plaintiff now is
8 disadvantaged by not having this data to review and refute Defendant's claims.
9 In summary, as Defendant has failed to comply with its discovery obligations in this matter. Plaintiff
10 respectfully requests that the Court grant this motion to compel.
11
12 II. STATEMENT OF FACTS
13 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a
14 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears
15 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered
16 consolidated on October 11, 2017.
17 Plaintiff served her first set of discovery requests on July 25,2017, including the first set of special
18 interrogatories. (Rivapalacio Decl. ^ 3.) Defendant served its initial responses on September 12, 2017.
19 (Rivapalacio Decl., Ex. 1.) On September 21, 2017, Plaintiff sent correspondence to Defendant detailing
20 the deficiencies in Defendant's responses. (Rivapalacio Decl., Ex. 2.) Plaintiff followed up the following
21 month (see Rivapalacio Decl., Ex. 3.). but the Parties only finally met and conferred over a month later on
22 October 24, 2017. (Rivapalacio Decl., Ex. 4.1
23 During the telephonic meet and confer. Defendant held two positions: 1) Defendant would
24 supplement the deficient responses as to those discovery requests Defendant deemed "certification
25
26
' Defendant filed a motion for monetary sanctions against Plaintiff on February 28, 2018, five (5)
27 days after Plaintiff withdrew, at Defendant's request, the then-pending motions to compel further
responses to this same at-issue discovery. Defendant's request for sanctions rests on Plaintiffs seeking
28 of this discovery.
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 discovery" or 2) Defendant would stand by its objection-only responses and would not revisit them prior
2 to certification if Defendant's request to bifurcate discovery was granted. (Id.) Despite Defendant's
3 promises, over a month later Defendant had provided no supplemental responses nor a date certain as to its
4 anticipated production, forcing Plaintiff to file a motion to compel further responses in regard to all the
5 outstanding discovery. (Rivapalacio Decl. | 7.) After Plaintiff filed her motion, Defendant provided
6 supplemental responses. (Rivapalacio Decl., Ex. 5.) At Defendant's request and after reviewing the
7 responses. Plaintiff withdrew the first set of motions to compel and requested a further meet and confer to
8 discuss the discovery that remained outstanding. (Rivapalacio Decl. ^ 9.)
9 The Parties met and conferred on December 20, 2017, during which, Defendant reasserted its
10 previous refusal to supplement its responses to the discovery requests it deemed "merits discovery."
11 (Rivapalacio Decl., Ex. 9.) Accordingly, Plaintiff filed a second set of motions to compel on January 17,
12 2018 to address the remaining discovery, all sought for certification purposes. (Rivapalacio Decl. Tl 11.)
13 Defendant filed a motion to sequence discovery on January 23, 2018, addressing the same at-issue
14 discovery. (Rivapalacio Decl. 12.) Plaintiff reviewed Defendant's motion, researched its legal positions,
15 and, pursuant to Defendant's emailed request of January 23,2018, withdrew the second set of motions only
16 one week after Defendant's filing of its motion to sequence. (Rivapalacio Decl. T| 13.)
17 On March 8, 2018, the Court denied Defendant's motion to sequence discovery without prejudice,
18 holding ruled that "the issues of burden, privacy, relevance/necessity, and timing are all much better
19 addressed and analyzed in detailed discovery motions (motions to compel, motions for protective
20 order) than by a broad stay on virtually all discovery without the detailed substance necessary to
21 assess such issues." Order on Mot. to Sequence, ROA #132, p. 2 (March 9, 2018). Notably, the Order was
22 issued by the Honorable Alan G. Perkins in Department 35. Id.
23 Upon receiving the order. Plaintiff sought again to meet and confer with Defendant regarding the
24 outstanding discovery. (Rivapalacio Decl., Ex. 12.) As Defendant had previously represented that a denial
25 of its request to bifurcate discovery would alter Defendant's position as to the at-issue discovery. Plaintiff
26 sought a telephonic conference of counsel to determine whether and which outstanding issues remained or
27 could be refined. (Id.) Defendant declined to meet and confer telephonically and asserted that it continues
28 to stand by its objections. (Id.)
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 Defendant filed a motion for summary adjudication ("MSA") on February 7, 2018. (Rivapalacio
2 Decl. Tl 14.) Further, instead of complying with the Court's order that the discovery issues here are best
3 resolved through motions to compel or motions for a protective order. Defendant re-filed its motion to
4 sequence discovery on March 9, 2018, setting it to be heard in Department 54 rather than Department 35.
5 (Rivapalacio Decl. Tl 16.)
6
7 III. ARGUMENT
8 Under California's Discovery Act, information should be regarded as "relevant to the subject matter"
9 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement
10 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal.
11 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of
12 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric
13 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997).
14 PlaintifPs discovery requests at issue seek foundational information which will either be admissible
15 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these
16 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiffis entitled to
17 full discovery unless limited by an order of the Court as follows:
18 Unless otherwise limited by order of the court in accordance with this article, any party may
obtain discovery regarding any matter, not privileged, that is relevant to the subject matter
19 involved in the pending action or to the determination of any motion made in that action, if
the matter either is itself admissible in evidence or appears reasonably calculated to lead to
20 the discovery of admissible evidence.
21 Indeed, Defendant has already demonstrated both the relevance of this discovery and the lack of
22 burden in its production because it cited to the discovery sought here in Defendant's MSA when Defendant
23 stated that "the total cash benefits provided to Participants who waived dental and/or medical coverage
24 represented a very small percentage of HNCA's contributions provided under the Plan for the elected dental
25 and/or medical coverage: 1.4% in 2013,1.3% in 2014; 0.9% in 2015; and 0.9% in2016." Def Memo. ISO
26 MSA, ROA #101, pp. 3-4.
27 A. Information Regarding Ascertainability, Numerosity, and Manageability: Rog Nos. 6-7
28 These interrogatories seek the pay periods in which those Class Members who were eligible to be
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
4 CASE No. 34-2017-00210560
1 paid cash payments in lieu of health benefits worked overtime and also received those payments (No. 6),
2 and the number of Class Members in that category (No. 7). Defendant responds to each with solely
3 objections. Plaintiff alleges that Defendant failed to include cash payments that were made in lieu of
4 health benefits when calculating the regular rate of pay for Plaintiff and Class Members. These
5 interrogatories seek information as to numerosity, ascertainability, and manageability ofthe class as defined
6 in the Complaint: the dates of specific pay periods, and the number of Class Members who received cash
7 payments in a pay period where they also worked overtime. This information will both lead to the
8 discovery of further evidence and will be used, in and of itself, as evidence in Plaintiffs upcoming
9 motion for class certification.
10 Specifically as to certification, this information will enable the Court to determine whether a trial
11 will be manageable as a class action and, also, whether the class is ascertainable. By demonstrating that the
12 Class Members can be identified and counted, the ascertainability prong will be met. Because demonstrating
13 manageability requires a showing that damages were incurred and that damages can be calculated classwide,
14 Plaintiff seeks the data to make this showing so the Court may make a proper analysis of the suitability of
15 certification.
16 In fact, a showing that Defendant did not include the health benefits cash payments in its calculation
17 of the Class Members' regular rates of pay is insufficient to establish a classwide claim on this issue. The
18 Court must also have evidence that Class Members were due payments at the proper regular rate, i.e., that
19 they worked overtime during the same pay periods when they were issued the health benefits cash payments.
20 As such, the information sought here is foundational, timely, directly relevant to certification, and narrowly
21 constructed to produce relevant evidence. Lastly, any relevant confidential information can be produced
22 subject to the protective order in place in this case.
23 Further, as Defendant used this same evidence in its MSA, Plaintiff is now in the unfair position
24 where Defendant may rely on this data to Defendant's own benefit and Plaintiff cannot verify Defendant's
25 statements or analyze the data to oppose the MSA. Defendant's use of classwide evidence of total amounts
26 of cash payments made to all Class Members completely contradicts Defendant's steadfast claims that this
27 discovery is untimely or inappropriate.
28 //
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
1 B. Information Regarding Defendant's Compensation System: Rog Nos. 11-12 & 14
2 These interrogatories asked Defendant to identify its pay codes (Nos. 11-12) and the types of
3 compensation issued to Class Members (No. 14), information that is fundamental to understanding
4 Defendant's wage statements, its compensation systems, and the various ways Defendant may record its
5 non-discretionary bonuses paid to Class Members or its mechanisms for paying overtime compensation.
6 Defendant supplemented its original deficient responses to state that it will provide the information as to
7 pay codes used on only Plaintiffs wage statements and to state the forms of compensation for which
8 Plaintiff was eligible, but not as to the rest of the Class Members.
9 As a putative class action. Plaintiff requires the same pay code information for all class members
10 in order to ascertain who was paid the same way as Plaintiff and, therefore, subject to the same claim that
11 certain cash payments were excluded from the calculation of the regular rate. Defendant does not have
12 discretion to "disregard the allegations of the complaint making this case a statewide representative action."
13 Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017).
14 Similarly, Plaintiff asks Defendant to identify all ofthe forms of compensation that Class Members
15 are eligible to receive so Plaintiff can understand the various kinds of cash payments paid to Class Members
16 that may not have been included in the regular rate of pay. For the ascertainability and commonality
17 requirements, Plaintiff needs this information for the class members and Defendant's continued attempts
18 to unilaterally limit its responses to Plaintiff unfairly prohibits Plaintiff from finding the other common class
19 members who share the same claim.
20 As to any potentially confidential or proprietary information, such information can be produced
21 pursuant to the now effective protective order.
22 C. Meal Period Policies: Rog Nos. 15-16
23 The meal policies to which Plaintiff and Class Members were subject are evidence in a wage and
24 hour class action case of Defendant's potential liability. Brinker Restaurant Corp. v. Sup. Ct., 53 Cal. 4th
25 1004, 1033 (2012) ("Claims alleging that a uniform policy consistently applied to a group of employees is
26 in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class
27 treatment.") Indeed, Defendant's responses agreeing to produce these documents concede their relevance.
28 This motion asks Defendant to identify the Bates numbers of the policies that Defendant references
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
6 CASE No. 34-2017-00210560
1 because Defendant refers Plaintiff to "policies and procedures applicable" without the detail required by the
2 Code of Civil Procedure, which states:
If the answer to an interrogatory would necessitate the preparation or the making of a
3 compilation, abstract, audit, or summary of or from the documents of the party to whom the
interrogatory is directed, and if the burden or expense of preparing or making it would be
4 substantially the same for the party propounding the interrogatory as for the responding
party, it is a sufficient answer to that interrogatory to refer to this section and to speciiy the
5 writings from which the answer may be derived or ascertained. This specification shall be
in sufficient detail to permit the propounding party to locate and to identiiy, as readily
6 as the responding party can, the documents from which the answer may be ascertained.
7 Cal. Code Civ. Proc. § 2030.230 (emphasis added).
8 At Plaintiffs request, Defendant provided further detail via written correspondence. (Rivapalacio
9 Decl., Ex. 6.) However, Defendant would not provide signed and verified responses containing the
10 necessary specification, leaving its responses deficient and non-compliant. (Rivapalacio Decl., Ex. 7.)
11 Policy information is necessary pre-certification discovery because the Court will need to know if
12 the employer's policies were equally applicable to other employees. The Class as pled in the complaint and
13 who suffered violations of the Labor Code in regard to their non-compliant meal periods and Defendant's
14 failure to pay any meal break penalties includes all non-exempt employees of Defendant in Califomia during
15 the relevant time period. All such employees were and are subject to these policies and, thus, the policies
16 will show commonality and typicality for class certification.
17 E. Class Members' Job Duties: Rog No. 18
18 The job duties of the Class Members are required to discover evidence regarding the expectations
19 of Defendant, the tasks performed by Class Members, and their ability to take meal breaks. As discussed
20 above. Defendant's policies regarding meal periods may evidence its liability, but an employer may have
21 a facially legal policy while failing to provide legally compliant meal periods in practice. For example, as
22 alleged in the Consolidated Complaint, Plaintiff Spears and Arana were both expected, as part of their job
23 performance, to boot up their computers in a specific manner. Through this practice where the Plaintiffs
24 were required to wait ten to twenty minutes for their computers to fully load before they could log in for the
25 day, Defendant failed to accurately record their time and avoided paying the Plaintiffs compensation for all
26 their hours worked.
27 To the extent these same job duties were expected of other Class Members, this information will
28 demonstrate commonality, typicality, adequacy, as well as the merits of the case. This information will be
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
7 CASE No. 34-2017-00210560
1 directly applicable to Plaintiffs motion for class certification and Defendant can provide no valid objection
2 for withholding this information.
3 Defendant's response that refers Plaintiff to her job description is, again, inappropriate in a putative
4 class action. Defendant does not have discretion to "disregard the allegations of the complaint making this
5 case a statewide representative action." Williams v. Superior Court, 3 Cal. 5th at 549.
6 F. Numbers of Meal Period Premiums Paid: Rog No. 19
7 This interrogatory requests the number of meal period premiums paid to Class Members. Defendant
8 responded by stating that "Plaintiff was not entitled to any meal period premiums and, as a result, did not
9 receive any meal period premiums." Such a response is evasive and non-responsive as the interrogatory
10 seeks information as to the Class Members and not solely Plaintiff
11 The number of meal period premiums paid to Class Members is directly relevant because it will
12 demonstrate through a statistical analysis Defendant's practice of failing to pay premiums when owed. See
13 Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388,418 (2015) ("The statistical evidence
14 reflects a common practice by which management modified timekeeping records, and substantiates
15 declarants' testimony that the [defendant] undertook active efforts to hide its wage and hour violations.").
16 In Alberts, the plaintiff there used precisely this evidence to demonstrate Defendant's common practice for
17 purposes of class certification:
18 [T]he fact that only a few missed meal premiums were actually paid relative to the total
number of missed meal breaks, combined with evidence that management actively
19 discouraged employees from seeking missed break compensation, reflects a common
practice by the Hospital of failing to compensate employees for hours worked and
20 constitutes common proof of liability.
21 M at 418 (emphasis added).
22 Further, to determine the suitability of certification, the Court will consider the manageability ofthe
23 class and, through examination of the necessary trial plan, whether the damages to which the Class is
24 entitled is calculable. Indeed, Defendant provided substantive responses in its supplemental responses to
25 similar questions when Plaintiff objected to their objection-only responses. Those interrogatories also sought
26 information as to the numbers associated with the class - the number of Class Members, the number of
27 workweeks worked, or the number of wage statements issued to Class Members, for example. Because the
28 damages related to the violations asserted here, regarding meal periods and wage statements, are calculated
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
8 CASE No. 34-2017-00210560
1 by workweek and pay period, the information sought through those interrogatories and the interrogatory at
2 issue serve this specific and vital purpose: to demonstrate the manageability of the class and the mechanism
3 by which the Court will calculate damages.
4 Defendant's failure to provide a substantive response to this interrogatory is suspicious in the context
5 of the interrogatories to which Defendant did eventually provide responses. Defendant cannot hide behind
6 silence to avoid an admission that Defendant did not pay any meal period premiums to any Class Member.
7 Further, as this request seeks only a number that is stored in Defendant's electronic databases, any
8 objection as to burden is without merit. Indeed, this discovery is regularly produced by defendants for their
9 own purposes such as mediation or removal and, in fact, and is readily accessible as demonstrated by
10 Defendant's responses to similar requests seeking solely numbers associated with the Class, namely
11 Interrogatory Nos. 17 and 20-24. As such, it is disingenuous to assert that this information is unduly
12 burdensome to provide.
13
14 IV. CONCLUSION
15 Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject
16 matter involved in the pending action if the matter either is itself admissible in evidence or appears
17 reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc, § 2017.010.
18 Califomia law has established a broad right to discovery and, as confirmed in Williams v. Superior Court,
19 3 Cal. 5th at 551, the judicial process is based on the understanding that a "[m]utual knowledge of all the
20 relevant facts gathered by both parties is essential to proper litigation." Id. at 551 (citing Greyhound Corp.
21 V. Superior Court, 56 Cal. 2d 355, 386 (1961)).
22 As the discovery at issue in the instant motion seeks information and documents that are relevant
23 facts to propel the parties toward a mutual understanding of the case, the issuance of an order compelling
24 further responses is appropriate here.
25 //
26 //
27 //
28 //
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
9 CASE No. 34-2017-00210560
1 Respectfully submitted.
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DATED: March 20, 2018 BLUMENTHAL, :^J01^DREHAUC}..pH0WM K DE BLOUW LLP
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Victoria B. Rivapal^cio,-Esq.
Attomeys
•ia B.for Plaintiff
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
10 CASE No. 34-2017-00210560
1 DECLARATION OF VICTORIA B. RIVAPALACIO
2 I, Victoria B. Rivapalacio, declare as follows:
3 1. I am one of attomeys of record for the Plaintiff in the above entitled action, and have
4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify
5 competently thereto, except as to the matters stated on information and belief, and as to such matters 1
6 believe them to be true.
7 2. This declaration is being submitted in support of Plaintiffs Motion to Compel Further
8 Responses to Plaintiffs Special Interrogatories.
9 3. Plaintiff served her first set of discovery requests on July 25, 2017, including the first set of
10 requests for production of documents. Defendant served its initial responses on September 12,2017. A true
11 and correct copy of Defendant's Responses to Plaintiffs Special Interrogatories, Set One is attached as
12 Exhibit I .
13 4. On September 21, 2017, Plaintiff sent correspondence to Defendant detailing deficiencies
14 in Defendant's responses. A true and correct copy of Plaintiff s correspondence of September 21, 2017 is
15 attached as Exhibit 2.
16 5. Plaintiff followed up regularly over the following month, including emails on September 26,
17 28,29, October 2,4, 6, 9, 10, 11, 13, 17, 18, 23, 2017 along with a number of voicemail messages. A true
18 and correct copy of the email chain is attached as Exhibit 3.
19 6. Plaintiff and Defendantfinallymet and conferred telephonically on October 24,2017. During
20 that meet and confer session. Defendant maintained two different positions in regard to the various deficient
21 responses: 1) Defendant agreed that the responses were deficient and promised to remedy the deficiencies
22 through the provision of supplemental responses, but would "not provide a timeline as to when those
23 [would] be provided"; and 2) Defendant asserted that the discovery sought was "merits" discovery and
24 stated it would not produce it without Court intervention. A true and correct copy of the confirmatory email
25 exchange regarding the October 24,2017 meet and confer is attached as Exhibit 4. Notably, Defendant did
26 assert during the telephonic conference that it would willingly produce even that discovery it considered
27 "merits" if the Court declined to sequence discovery.
28 7. Although Plaintiff followed up regularly in the interim and innumerable email
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
1 CASE No. 34-2017-00210560
1 correspondence were exchanged, over a month later. Defendant had still yet to provide supplemental
2 responses, produce documents, or provide a date certain as to the anticipated production. Further, no further
3 ground was gained in regard to the discovery that was undeniably in dispute, that Defendant outright refused
4 to produce without a Court order. The delay forced Plaintiff to file herfirstset of motions to compel further
5 responses in regard to the deficient discovery responses, which she did on December 1,2017 and December
6 4, 2017. Defendant did not provide the promised supplemental responses to Plaintiffs discovery requests
7 until December 6,2017, with the further document production made thereafter on December 7,2017. A true
8 and correct copy of Defendant's Supplemental Responses to Special Interrogatories, Set One is attached as
9 Exhibit 5. Thus, it was only after Plaintiff incurred the fees and costs associated with drafting and filing the
10 motions that Defendant provided the supplemental responses to a number of the outstanding discovery
11 requests and the associated further document production.
12 8. At Plaintiffs request. Defendant provided further detail in regard to its responses referring
13 Plaintiff to documents. However, Defendant provided this information solely via written correspondence.
14 A true and correct copy of this correspondence is attached as Exhibit 6. Defendant would not provide signed
15 and verified responses containing the necessary specification, leaving its responses deficient and non-
16 compliant. A true and correct copy of the email correspondence is attached as Exhibit 7.
17 9. Plaintiff withdrew the motions on December 15, 2017, roughly one week after Defendant
18 provided its promised responses and five days before Defendant's Opposition was due. Plaintiff reviewed
19 Defendant's discovery responses and withdrew the motions the same day Defendant requested that Plaintiff
20 withdraw the motions. Plaintiff withdrew the motions for efficiency purposes, so as not to waste the Parties'
21 or the Court's resources organizing a motion as to which discovery still required a court order. Plaintiff
22 sought to refine the motions so that they would address only the discovery that remained outstanding and,
23 also, so Plaintiff could attempt to avoid Defendant's continued dishonest claim that Plaintiff had not
24 exhausted meet and confer efforts.
25 10. Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly and
26 exhaustively meet and confer, Plaintiff sought to meet and confer with Defendant again after withdrawing,
27 per Defendant's request, the first set of motions to compel. A true and correct copy of the email
28 correspondence of December 18,2017 is attached as Exhibit 8. The Parties met and conferred telephonically
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
2 CASE No. 34-2017-00210560
1 on December 20,2017, addressing how Defendant's production altered the dispute detailed in the motions
2 and further exhausting any remaining issues. A true and correct copy of the confirmatory email is attached
3 as Exhibit 9.
4 11. Plaintiff filed the second set of motions to compel further responses on January 17, 2018,
5 pared down to only those discovery requests that Defendant had maintained from its initial responses that
6 it would not provide without court intervention.
7 12. Defendantfiledits Motion to Sequence Discovery on January 23,2018. Defendant's Motion
8 to Sequence addressed the very same discovery at issue in Plaintiffs second set of Motions to Compel. The
9 same day. Defendant requested that Plaintiff withdraw her pending motions to compel. A true and correct
10 copy of the email correspondence is attached as Exhibit 10.
11 13. Plaintiff withdrew the second set of Motions to Compel on January 30,2018, only one week
12 after Defendantfiledits Motion to Sequence Discovery. Plaintiff reviewed Defendant's motion, researched
13 its legal positions, and, pursuant to Defendant's request of January 23, 2018, withdrew the motions.
14 Plaintiffs counsel attempted to call Defendant's counsel earlier in the day to alert them to the withdrawal
15 as early as possible and apologized via email correspondence for the inconvenience to Defendant's counsel
16 because of Plaintiff s counsel's inability to withdraw the motions earlier without prejudicing Plaintiff. A
17 true and correct copy of the email correspondence is attached as Exhibit 11. The delay in the withdrawal
18 was not gamesmanship, but a symptom of Defendant's failure to properly and fully meet and confer
19 regarding its motion to sequence, as well as Plaintiffs counsel's obligation to Plaintiff to preserve her rights
20 in regard to the at-issue discovery.
21 14. Six (6) days after Plaintiff withdrew her motions, on February 5,2018, Defendant served its
22 Motion for Summary Adjudication. Defendant's MSA was filed on February 7, 2018.
23 15. Defendant's Motion to Sequence Discovery was denied without prejudice on February 23,
24 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the discovery that
25 still remains in dispute as no order has yet been issued to resolve the longstanding issues. Defendant
26 declined Plaintiffs request to meet and confer regarding Plaintiffs upcoming Motions to Compel Further
27 Responses. A true and correct copy of the email exchange is attached as Exhibit 12.
28 16. Without even a request to meet and confer, Defendant re-filed its Motion to Sequence on
MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
3 CASE No. 34-2017-00210560
1 March 9, 2018, scheduled to be heard in Department 54 on April 9, 2018.
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3 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
4 and correct. Executed this 20th day of March, 2018, at La Jolla, Califomia.
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VICTORIA B. RIVAPALA(
APALACIO
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
CASE No. 34-2017-00210560
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MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY
5 CASE No. 34-2017-00210560
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall
3 Suite 3000
Sacramento, CA 95814-4497
'4 Telephone: +1 916 447 9200
Facsimile: +1 916 329 4900
5
STEPHANIE GAIL LEE (STATE BAR NO. 285379)
6 stephanie.lee@orrick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP
7 777 South Figueroa Street, Suite 3200
Los Angeles, California 90017
8 Telephone: (213)629-2020
Facsimile: (213) 612-2499
9
Attomeys for Defendant
10 HEALTH NET OF CALIFORNIA, INC.
U
SUPERIOR COURT OF THE STATE OF CALIFORNLA
12
COUNTY OF SACRAMENTO
13
14
ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560
15 herself and on behalf of all persons similzirly
situated,. DEFENDANT HEALTH NET OF
16 CALIFORNIA, INC.'S RESPONSES TO
Plaintiff, PLAINTIFF'S SPECIAL
17 INTERROGATORIES, SET ONE
18 Date Action Filed: April 5, 2017
HEALTH NET OF CALIFORNIA, INC., a Trial Date: None Set
19 Califomia Corporation, and Does 1 through 50,
Inclusive,,
20
Defendants.
21
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PROPOUNDING PARTY: Plaintiff, ANDREA SPEARS
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RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNIA, INC.
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SET NO.: ONE(l)
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0HSUSA;767194169.5
DEFENDANT HEALTH NET OF CALIFORNIA. INC.'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE
1 Pursuant to sections 2030 et seq. ofthe Code of Civil Procedure, Defendant Health Net of
2 Califomia, Inc. ("Defendant") responds to the First Set of Special Interrogatories served upon it by
3 Plaintiff Andrea Spears ("Plaintiff) as follows:
4 GENERAL OBJECTIONS AND RESPONSES
5 The following responses are made solely for the purpose of this litigation and are based on
6 infonnation presently known emd available to Defendant. Discovery is still ongoing and Defendant
7 reserves the right to supplement these responses with subsequently discovered information and/or
8 to introduce such information at the time of the trial.
9 Each response is subject to all objections as to competence, relevance, materiality,
10 proprietary, subject matter, admissibility and any and all other objections or grounds that would
11 require exclusion of the responses or documents produced by Defendant, or any part thereof, if any
12 "of these responses or documents were presented at court. All appropriate objections and grounds
13 are hereby reserved and may be interposed at trial regarding the introduction into evidence of a
14 response to Plaintiffs Special Interrogatories.
15 No response to these interrogatories constitutes or should be construed as an admission
16 respecting relevancy or admissibility of the disclosed information, or the tmth or accuracy of any
17 statement, characterization or other fact contained in any response to these interrogatories.
18 Defendant expressly does not concede the relevancy or materiality of any of these interrogatories
19 or the subject matter to which they refer.
20 The fact that Defendant has responded to or objected to any interrogatory or part thereof
21 may not be taken as an admission about the existence or nonexistence of any fact, or that such
22 response constitutes relevant evidence. No implied admissions whatsoever are intended by these
23 responses. The fact that Defendant has responded to part or all of any interrogatory shall not be
24 construed to be a waiver of any obj ection to part or all of any other interrogatory. Nothing contained
25 herein shall be construed as an imphed admission of the existence or nonexistence ofany fact.
26 To the extent these interrogatories call for information which constitutes material prepared
27 in anticipation of litigation or for trial, mformation or material protected by the attomey-client
28 privilege, the work product doctrine, the joint defense privilege and/or the common interest
OHSUSA:767194169.5 ^ .
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE
1 privilege or any other privilege. Defendant objects to each and every such interrogatory and will
2 not supply or produce any such information. To the extent any interrogatory seeks information
3 relating to legal conclusions, opinions, theories and/or research of Defendant and Defendant's
4 counsel. Defendant objects and will not provide such information. Moreover, in responding to any
5 interrogatory potentially calling for a legal conclusion, Defendant does not admit, either expressly
6 or impliedly, that any such response adopts any of the legal conclusions contained in the
7 interrogatory. These responses shall not constitute a waiver of any privilege or any other ground
8 for objecting to discovery with respect to such response, nor shall inadvertent disclosure waive the
9 right of Defendant to object to the use of such information during any subsequent proceeding.
10 To the extent any interrogatory seeks information relating to confidential persormel or other
11 information of persons other than Plaintiff, Defendant objects to each and every interrogatory on
12 the grounds that such interrogatory is overbroad, seeks information that is not relevant to the subject
13 matter of this action, is not reasonably calculated to lead to the discovery of admissible evidence
14 and invades the privacy rights of such other persons. To the extent any interrogatory violates
15 Defendant's right to privacy or calls for the disclosure of confidential and/or proprietary
16 information or information otherwise protected as a trade secret, Defendant objects to each and
17 every such interrogatory and will not supply or produce any such information except pursuant to a
18 Protective Order goveming the production of such information entered in this matter.
19 Defendant objects to the purported definitions and, instmctions set forth in the
20 interrogatories on the grounds that they are vague, ambiguous, overbroad, burdensome and
21 oppressive and Defendant undertakes no obligation except as those that may be provided by the
22 Code of Civil Procedure.
23 Defendant incorporates by this reference each and all ofthe foregoing General Objections
24 into the following enumerated Responses.
25 RESPONSE TO SPECIAL INTERROGATORIES
26 SPECIAL INTERROGATORY NO. 1:
27 Please state PLAINTIFF'S dates of employment, rates of pay, and job titles during the
28 RELEVANT TIME PERIOD.
0HSUSA:767194169.5 " '
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE
1 RESPONSE TO SPECIAL INTERROGATORY NO. 1:
2 In addition to the foregoing General Objections, Defendant objects to this interrogatory on
3 the grounds that it is vague and ambiguous. Defendant also objects to this interrogatory on the
4 grounds it is compound, overbroad, unduly burdensome and seeks information that is neither
5 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of
6 admissible evidence. Discovery is on-going and Defendant reserves the right to amend its response.
7 Subject to and without waiving the foregoing objections. Defendant responds as follows:
8 Pursuant to Civil Procedure Code sections 2030.230 and 2030.210(a)(2), Defendant refers to
9 Plaintiffs personnel file, wage statements and other documents produced concurrently herewith
10 and in connection with this litigation.
11 SPECIAL INTERROGATORY NO. 2;
12 Please state the date ofPLAINTIFF'Sfmal paycheck.
13 RESPONSE TO SPECIAL INTERROGATORY NO. 2:
14 In addition to the foregoing General Objections, Defendant objects to this interrogatory on
15 the grounds that it is vague and ambiguous. Defendant also objects to this interrogatory on the
16 pounds it is compound, overbroad, unduly burdensome and seeks information that is neither
17 relevant to
Preview
• ' ' F1L|G3 • 1 BLUMENTHAL, NORDREHAUG BHOWMIK DE BLOUW L L P ^ ^ ^ ^ ^ ' ^ ^ ^ " Norman B. Blumenthal (State Bar #068687) nninMaoon DM U9 2 Kyle R. Nordrehaug (State Bar #205975) 2018 HAK -^U Vn Aparajit Bhowmik (State Bar #248066) ...... QRNiA 3 Victoria B. Rivapalacio (State Bar #275115) ^ ' ^ ^ S E Y I I T S / ^ ^ TO' 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 6 Attomeys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS, an individual, on Case No. 34-2017-00210560-CU-OE-GDS behalf of herself ana on behalf of all 14 persons similarly situated. CLASS ACTION 15 Plaintiff, PLAINTIFF'S NOTICE OF MOTION 16 AND MOTION TO COMPEL FURTHER vs. RESPONSES TO SPECIAL 17 INTERROGATORIES; MEMORANDUM HEALTH NET OF CALIFORNIA, IN SUPPORT; DECLARATION OF 18 INC., a Califomia Corporation; and VICTORIA B. RIVAPALACIO IN Does 1 through 50, Inclusive, SUPPORT 19 20 Defendants. Telephone Appearance 21 Hearing Date: April 16, 2018 Hearing Time: 9:1)0 a.m. 22 Judge: Raymond M . Cadei Dept.: 54 23 Action Filed: April 5, 2017 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 Filed by Fax TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: 2 Please be advised that on April 16, 2018 at 9:00 a.m. in Department 54 of the above entitled 3 Court, Plaintiff ANDREA SPEARS ("Plaintiff) will move to compel Defendant HEALTH NET OF 4 CALIFORNIA, INC. ("Defendant") to provide further responses to Plaintiffs Special Interrogatories, 5 Set One. This motion will be heard before the Honorable Raymond M. Cadei, Judge of the Superior 6 Court of Califomia, County of Sacramento. 7 This motion will be made pursuant to Code of Civil Procedure Section 2030.300 on the grounds 8 that the said interrogatories are relevant to the subject matter of this action and that Defendant's 9 objections are improper and without merit. The motion will be based upon this notice of motion and 10 motion, the memorandum of points and authorities, the separate statement, the declaration of Victoria B. Rivapalacio, the lodged exhibits, filed and served herewith, the complete files and records in this case 12 and such oral and documentary evidence as may be presented at or before the hearing of this motion. 13 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of this 14 matter by 2:00 p.m., the court day before the hearing. The complete text of the tentative rulings 15 for the department may be downloaded off the court's website. If the party does not have online 16 access, they may call the dedicated phone number for the department as referenced in the local 17 telephone directory between the hours of 2:00 p.m. and 4:00 p.m. on the court day before the 18 hearing and receive the tentative ruling. Ifyou do not call the court and opposing party on the 19 court day before the hearing, no hearing will be held. 20 21 Dated: March 20, 2018 BLUME^JTH/^L ^ORDREHA^p BHOWMIK DE BLOUW LLP i 22 23 By: Victoria B. Rivapalacio, Esq. 24 Attomeys for Plaintiff 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 I. INTRODUCTION 2 Plaintiff Andrea Spears ("Plaintiff and "Plaintiff Spears") asserts causes of actions based on 3 Defendant's failure to properly compensate Plaintiff and other non-exempt, hourly employees for all time 4 worked, in violation of the California Labor Code. Plaintiff brings this case on behalf of a class of former 5 and current non-exempt, hourly employees of Defendant. Plaintiff asserts causes of action under the 6 Califomia Labor Code and the Unfair Business and Professions Code (the "UCL") based on Defendant's 7 failure to provide compliant meal and rest periods/premiums to this class as promised by Defendant's 8 policies that agreed to pay premiums for breaks documented as missed in the time records. 9 Plaintiff also asserts causes of action on behalf of this class based on Defendant's failure to properly 10 calculate the Class Members' regular rate of pay by failing to have a payroll mechanism that included 11 certain cash payments in the calculation of the overtime rate of pay for these employees. 12 The discovery requests at issue here seek (1) information to establish the number and ascertain 13 the membership ofthe class of employees who were subject to the overtime miscalculation (Rog Nos. 14 6-7); (2) Defendant's pay codes and types of compensation used to pay the class (Rog Nos. 11-12, & 15 14); (3) the Bates numbers of the meal period policies for which Defendant produced documents 16 instead of answering the interrogatory response (Rog Nos. 15-16); (4) the numbers of meal period 17 premiums paid (Rog No. 19); and (5) Class Members' job duties (Rog No. 18). Defendant has refused 18 to cooperate with providing sufficient responses despite their clear relevance to class certification. 19 For example. Defendant refuses to identify the pay codes used by Defendant on Class Members' 20 wage statements or even to identify ali forms of compensation Class Members were eligible to receive. This 21 information is indisputably relevant in a wage and hour class action, particularly when, as here, the 22 allegations include failing to properly include non-discretionary wages in the calculation of the regular rate. 23 As a further example, Defendant refuses to provide the number of meal period premiums it has paid to Class 24 Members, despite clear precedent demonstrating the direct relevance of such infonnation: "the fact that only 25 a few missed meal premiums were actually paid relative to the total number of missed meal breaks... reflects 26 a common practice by [a defendant] of failing to compensate employees for hours worked and constitutes 27 common proof of liability." y4/6em v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388,418 (2015). 28 That Defendant has objected to providing the at-issue discovery and then cited it in its recently filed MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 motion for summary adjudication ("MSA") is evidence of the appropriateness of the discovery, the ease by 2 which it can be gathered, and, also, the purpose of Defendant's tactics of obstruction. Because the resolution 3 of this discovery dispute was delayed, Defendant gained for itself the unfair advantage of rushing 4 Defendant's filings to the front of the line. The classwide payroll data that Defendant seeks to withhold from 5 Plaintiff and, indeed, claims Plaintiff should be punished for seeking,' is actually the same information 6 Defendant unilaterally gathered and used for Defendant's own benefit in filing the MSA. Because Plaintiff 7 agreed to Defendant's proposal to withdraw the prior pending motions to compel, Plaintiff now is 8 disadvantaged by not having this data to review and refute Defendant's claims. 9 In summary, as Defendant has failed to comply with its discovery obligations in this matter. Plaintiff 10 respectfully requests that the Court grant this motion to compel. 11 12 II. STATEMENT OF FACTS 13 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a 14 cause of action pursuant to PAGA on June 29,2017. The Partiesfileda stipulation to consolidate the Spears 15 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered 16 consolidated on October 11, 2017. 17 Plaintiff served her first set of discovery requests on July 25,2017, including the first set of special 18 interrogatories. (Rivapalacio Decl. ^ 3.) Defendant served its initial responses on September 12, 2017. 19 (Rivapalacio Decl., Ex. 1.) On September 21, 2017, Plaintiff sent correspondence to Defendant detailing 20 the deficiencies in Defendant's responses. (Rivapalacio Decl., Ex. 2.) Plaintiff followed up the following 21 month (see Rivapalacio Decl., Ex. 3.). but the Parties only finally met and conferred over a month later on 22 October 24, 2017. (Rivapalacio Decl., Ex. 4.1 23 During the telephonic meet and confer. Defendant held two positions: 1) Defendant would 24 supplement the deficient responses as to those discovery requests Defendant deemed "certification 25 26 ' Defendant filed a motion for monetary sanctions against Plaintiff on February 28, 2018, five (5) 27 days after Plaintiff withdrew, at Defendant's request, the then-pending motions to compel further responses to this same at-issue discovery. Defendant's request for sanctions rests on Plaintiffs seeking 28 of this discovery. MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 discovery" or 2) Defendant would stand by its objection-only responses and would not revisit them prior 2 to certification if Defendant's request to bifurcate discovery was granted. (Id.) Despite Defendant's 3 promises, over a month later Defendant had provided no supplemental responses nor a date certain as to its 4 anticipated production, forcing Plaintiff to file a motion to compel further responses in regard to all the 5 outstanding discovery. (Rivapalacio Decl. | 7.) After Plaintiff filed her motion, Defendant provided 6 supplemental responses. (Rivapalacio Decl., Ex. 5.) At Defendant's request and after reviewing the 7 responses. Plaintiff withdrew the first set of motions to compel and requested a further meet and confer to 8 discuss the discovery that remained outstanding. (Rivapalacio Decl. ^ 9.) 9 The Parties met and conferred on December 20, 2017, during which, Defendant reasserted its 10 previous refusal to supplement its responses to the discovery requests it deemed "merits discovery." 11 (Rivapalacio Decl., Ex. 9.) Accordingly, Plaintiff filed a second set of motions to compel on January 17, 12 2018 to address the remaining discovery, all sought for certification purposes. (Rivapalacio Decl. Tl 11.) 13 Defendant filed a motion to sequence discovery on January 23, 2018, addressing the same at-issue 14 discovery. (Rivapalacio Decl. 12.) Plaintiff reviewed Defendant's motion, researched its legal positions, 15 and, pursuant to Defendant's emailed request of January 23,2018, withdrew the second set of motions only 16 one week after Defendant's filing of its motion to sequence. (Rivapalacio Decl. T| 13.) 17 On March 8, 2018, the Court denied Defendant's motion to sequence discovery without prejudice, 18 holding ruled that "the issues of burden, privacy, relevance/necessity, and timing are all much better 19 addressed and analyzed in detailed discovery motions (motions to compel, motions for protective 20 order) than by a broad stay on virtually all discovery without the detailed substance necessary to 21 assess such issues." Order on Mot. to Sequence, ROA #132, p. 2 (March 9, 2018). Notably, the Order was 22 issued by the Honorable Alan G. Perkins in Department 35. Id. 23 Upon receiving the order. Plaintiff sought again to meet and confer with Defendant regarding the 24 outstanding discovery. (Rivapalacio Decl., Ex. 12.) As Defendant had previously represented that a denial 25 of its request to bifurcate discovery would alter Defendant's position as to the at-issue discovery. Plaintiff 26 sought a telephonic conference of counsel to determine whether and which outstanding issues remained or 27 could be refined. (Id.) Defendant declined to meet and confer telephonically and asserted that it continues 28 to stand by its objections. (Id.) MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 Defendant filed a motion for summary adjudication ("MSA") on February 7, 2018. (Rivapalacio 2 Decl. Tl 14.) Further, instead of complying with the Court's order that the discovery issues here are best 3 resolved through motions to compel or motions for a protective order. Defendant re-filed its motion to 4 sequence discovery on March 9, 2018, setting it to be heard in Department 54 rather than Department 35. 5 (Rivapalacio Decl. Tl 16.) 6 7 III. ARGUMENT 8 Under California's Discovery Act, information should be regarded as "relevant to the subject matter" 9 if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating the settlement 10 thereof Gonzalez v. Superior Court, 33 Cal. App. 4th 1539,1546 (1995); Lipton v. Superior Court, 48 Cal. 11 App. 4th 1599, 1611 (1996). These cases state that the scope must be liberally construed in favor of 12 permitting discovery in accordance with the underlying policy of the Discovery Act. Emerson Electric 13 V. Superior Court, 16 Cal. 4th 1101, 1107 (1997). 14 PlaintifPs discovery requests at issue seek foundational information which will either be admissible 15 evidence in itself or will lead to the discovery of admissible evidence. Therefore, the relevancy of these 16 requests is manifest. Califomia Code of Civil Procedure § 2017.010 provides that a plaintiffis entitled to 17 full discovery unless limited by an order of the Court as follows: 18 Unless otherwise limited by order of the court in accordance with this article, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter 19 involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to 20 the discovery of admissible evidence. 21 Indeed, Defendant has already demonstrated both the relevance of this discovery and the lack of 22 burden in its production because it cited to the discovery sought here in Defendant's MSA when Defendant 23 stated that "the total cash benefits provided to Participants who waived dental and/or medical coverage 24 represented a very small percentage of HNCA's contributions provided under the Plan for the elected dental 25 and/or medical coverage: 1.4% in 2013,1.3% in 2014; 0.9% in 2015; and 0.9% in2016." Def Memo. ISO 26 MSA, ROA #101, pp. 3-4. 27 A. Information Regarding Ascertainability, Numerosity, and Manageability: Rog Nos. 6-7 28 These interrogatories seek the pay periods in which those Class Members who were eligible to be MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 4 CASE No. 34-2017-00210560 1 paid cash payments in lieu of health benefits worked overtime and also received those payments (No. 6), 2 and the number of Class Members in that category (No. 7). Defendant responds to each with solely 3 objections. Plaintiff alleges that Defendant failed to include cash payments that were made in lieu of 4 health benefits when calculating the regular rate of pay for Plaintiff and Class Members. These 5 interrogatories seek information as to numerosity, ascertainability, and manageability ofthe class as defined 6 in the Complaint: the dates of specific pay periods, and the number of Class Members who received cash 7 payments in a pay period where they also worked overtime. This information will both lead to the 8 discovery of further evidence and will be used, in and of itself, as evidence in Plaintiffs upcoming 9 motion for class certification. 10 Specifically as to certification, this information will enable the Court to determine whether a trial 11 will be manageable as a class action and, also, whether the class is ascertainable. By demonstrating that the 12 Class Members can be identified and counted, the ascertainability prong will be met. Because demonstrating 13 manageability requires a showing that damages were incurred and that damages can be calculated classwide, 14 Plaintiff seeks the data to make this showing so the Court may make a proper analysis of the suitability of 15 certification. 16 In fact, a showing that Defendant did not include the health benefits cash payments in its calculation 17 of the Class Members' regular rates of pay is insufficient to establish a classwide claim on this issue. The 18 Court must also have evidence that Class Members were due payments at the proper regular rate, i.e., that 19 they worked overtime during the same pay periods when they were issued the health benefits cash payments. 20 As such, the information sought here is foundational, timely, directly relevant to certification, and narrowly 21 constructed to produce relevant evidence. Lastly, any relevant confidential information can be produced 22 subject to the protective order in place in this case. 23 Further, as Defendant used this same evidence in its MSA, Plaintiff is now in the unfair position 24 where Defendant may rely on this data to Defendant's own benefit and Plaintiff cannot verify Defendant's 25 statements or analyze the data to oppose the MSA. Defendant's use of classwide evidence of total amounts 26 of cash payments made to all Class Members completely contradicts Defendant's steadfast claims that this 27 discovery is untimely or inappropriate. 28 // MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 B. Information Regarding Defendant's Compensation System: Rog Nos. 11-12 & 14 2 These interrogatories asked Defendant to identify its pay codes (Nos. 11-12) and the types of 3 compensation issued to Class Members (No. 14), information that is fundamental to understanding 4 Defendant's wage statements, its compensation systems, and the various ways Defendant may record its 5 non-discretionary bonuses paid to Class Members or its mechanisms for paying overtime compensation. 6 Defendant supplemented its original deficient responses to state that it will provide the information as to 7 pay codes used on only Plaintiffs wage statements and to state the forms of compensation for which 8 Plaintiff was eligible, but not as to the rest of the Class Members. 9 As a putative class action. Plaintiff requires the same pay code information for all class members 10 in order to ascertain who was paid the same way as Plaintiff and, therefore, subject to the same claim that 11 certain cash payments were excluded from the calculation of the regular rate. Defendant does not have 12 discretion to "disregard the allegations of the complaint making this case a statewide representative action." 13 Williams v. Superior Court, 3 Cal. 5th 531, 549 (2017). 14 Similarly, Plaintiff asks Defendant to identify all ofthe forms of compensation that Class Members 15 are eligible to receive so Plaintiff can understand the various kinds of cash payments paid to Class Members 16 that may not have been included in the regular rate of pay. For the ascertainability and commonality 17 requirements, Plaintiff needs this information for the class members and Defendant's continued attempts 18 to unilaterally limit its responses to Plaintiff unfairly prohibits Plaintiff from finding the other common class 19 members who share the same claim. 20 As to any potentially confidential or proprietary information, such information can be produced 21 pursuant to the now effective protective order. 22 C. Meal Period Policies: Rog Nos. 15-16 23 The meal policies to which Plaintiff and Class Members were subject are evidence in a wage and 24 hour class action case of Defendant's potential liability. Brinker Restaurant Corp. v. Sup. Ct., 53 Cal. 4th 25 1004, 1033 (2012) ("Claims alleging that a uniform policy consistently applied to a group of employees is 26 in violation of the wage and hour laws are of the sort routinely, and properly, found suitable for class 27 treatment.") Indeed, Defendant's responses agreeing to produce these documents concede their relevance. 28 This motion asks Defendant to identify the Bates numbers of the policies that Defendant references MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 6 CASE No. 34-2017-00210560 1 because Defendant refers Plaintiff to "policies and procedures applicable" without the detail required by the 2 Code of Civil Procedure, which states: If the answer to an interrogatory would necessitate the preparation or the making of a 3 compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be 4 substantially the same for the party propounding the interrogatory as for the responding party, it is a sufficient answer to that interrogatory to refer to this section and to speciiy the 5 writings from which the answer may be derived or ascertained. This specification shall be in sufficient detail to permit the propounding party to locate and to identiiy, as readily 6 as the responding party can, the documents from which the answer may be ascertained. 7 Cal. Code Civ. Proc. § 2030.230 (emphasis added). 8 At Plaintiffs request, Defendant provided further detail via written correspondence. (Rivapalacio 9 Decl., Ex. 6.) However, Defendant would not provide signed and verified responses containing the 10 necessary specification, leaving its responses deficient and non-compliant. (Rivapalacio Decl., Ex. 7.) 11 Policy information is necessary pre-certification discovery because the Court will need to know if 12 the employer's policies were equally applicable to other employees. The Class as pled in the complaint and 13 who suffered violations of the Labor Code in regard to their non-compliant meal periods and Defendant's 14 failure to pay any meal break penalties includes all non-exempt employees of Defendant in Califomia during 15 the relevant time period. All such employees were and are subject to these policies and, thus, the policies 16 will show commonality and typicality for class certification. 17 E. Class Members' Job Duties: Rog No. 18 18 The job duties of the Class Members are required to discover evidence regarding the expectations 19 of Defendant, the tasks performed by Class Members, and their ability to take meal breaks. As discussed 20 above. Defendant's policies regarding meal periods may evidence its liability, but an employer may have 21 a facially legal policy while failing to provide legally compliant meal periods in practice. For example, as 22 alleged in the Consolidated Complaint, Plaintiff Spears and Arana were both expected, as part of their job 23 performance, to boot up their computers in a specific manner. Through this practice where the Plaintiffs 24 were required to wait ten to twenty minutes for their computers to fully load before they could log in for the 25 day, Defendant failed to accurately record their time and avoided paying the Plaintiffs compensation for all 26 their hours worked. 27 To the extent these same job duties were expected of other Class Members, this information will 28 demonstrate commonality, typicality, adequacy, as well as the merits of the case. This information will be MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 7 CASE No. 34-2017-00210560 1 directly applicable to Plaintiffs motion for class certification and Defendant can provide no valid objection 2 for withholding this information. 3 Defendant's response that refers Plaintiff to her job description is, again, inappropriate in a putative 4 class action. Defendant does not have discretion to "disregard the allegations of the complaint making this 5 case a statewide representative action." Williams v. Superior Court, 3 Cal. 5th at 549. 6 F. Numbers of Meal Period Premiums Paid: Rog No. 19 7 This interrogatory requests the number of meal period premiums paid to Class Members. Defendant 8 responded by stating that "Plaintiff was not entitled to any meal period premiums and, as a result, did not 9 receive any meal period premiums." Such a response is evasive and non-responsive as the interrogatory 10 seeks information as to the Class Members and not solely Plaintiff 11 The number of meal period premiums paid to Class Members is directly relevant because it will 12 demonstrate through a statistical analysis Defendant's practice of failing to pay premiums when owed. See 13 Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388,418 (2015) ("The statistical evidence 14 reflects a common practice by which management modified timekeeping records, and substantiates 15 declarants' testimony that the [defendant] undertook active efforts to hide its wage and hour violations."). 16 In Alberts, the plaintiff there used precisely this evidence to demonstrate Defendant's common practice for 17 purposes of class certification: 18 [T]he fact that only a few missed meal premiums were actually paid relative to the total number of missed meal breaks, combined with evidence that management actively 19 discouraged employees from seeking missed break compensation, reflects a common practice by the Hospital of failing to compensate employees for hours worked and 20 constitutes common proof of liability. 21 M at 418 (emphasis added). 22 Further, to determine the suitability of certification, the Court will consider the manageability ofthe 23 class and, through examination of the necessary trial plan, whether the damages to which the Class is 24 entitled is calculable. Indeed, Defendant provided substantive responses in its supplemental responses to 25 similar questions when Plaintiff objected to their objection-only responses. Those interrogatories also sought 26 information as to the numbers associated with the class - the number of Class Members, the number of 27 workweeks worked, or the number of wage statements issued to Class Members, for example. Because the 28 damages related to the violations asserted here, regarding meal periods and wage statements, are calculated MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 8 CASE No. 34-2017-00210560 1 by workweek and pay period, the information sought through those interrogatories and the interrogatory at 2 issue serve this specific and vital purpose: to demonstrate the manageability of the class and the mechanism 3 by which the Court will calculate damages. 4 Defendant's failure to provide a substantive response to this interrogatory is suspicious in the context 5 of the interrogatories to which Defendant did eventually provide responses. Defendant cannot hide behind 6 silence to avoid an admission that Defendant did not pay any meal period premiums to any Class Member. 7 Further, as this request seeks only a number that is stored in Defendant's electronic databases, any 8 objection as to burden is without merit. Indeed, this discovery is regularly produced by defendants for their 9 own purposes such as mediation or removal and, in fact, and is readily accessible as demonstrated by 10 Defendant's responses to similar requests seeking solely numbers associated with the Class, namely 11 Interrogatory Nos. 17 and 20-24. As such, it is disingenuous to assert that this information is unduly 12 burdensome to provide. 13 14 IV. CONCLUSION 15 Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject 16 matter involved in the pending action if the matter either is itself admissible in evidence or appears 17 reasonably calculated to lead to the discovery of admissible evidence. Code Civ. Proc, § 2017.010. 18 Califomia law has established a broad right to discovery and, as confirmed in Williams v. Superior Court, 19 3 Cal. 5th at 551, the judicial process is based on the understanding that a "[m]utual knowledge of all the 20 relevant facts gathered by both parties is essential to proper litigation." Id. at 551 (citing Greyhound Corp. 21 V. Superior Court, 56 Cal. 2d 355, 386 (1961)). 22 As the discovery at issue in the instant motion seeks information and documents that are relevant 23 facts to propel the parties toward a mutual understanding of the case, the issuance of an order compelling 24 further responses is appropriate here. 25 // 26 // 27 // 28 // MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 9 CASE No. 34-2017-00210560 1 Respectfully submitted. 2 DATED: March 20, 2018 BLUMENTHAL, :^J01^DREHAUC}..pH0WM K DE BLOUW LLP 3 4 5 By: 6^ AV' Victoria B. Rivapal^cio,-Esq. Attomeys •ia B.for Plaintiff Rivapal^io,-Esq. 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 10 CASE No. 34-2017-00210560 1 DECLARATION OF VICTORIA B. RIVAPALACIO 2 I, Victoria B. Rivapalacio, declare as follows: 3 1. I am one of attomeys of record for the Plaintiff in the above entitled action, and have 4 personal knowledge of each of the facts set forth herein, and if called upon as a witness could testify 5 competently thereto, except as to the matters stated on information and belief, and as to such matters 1 6 believe them to be true. 7 2. This declaration is being submitted in support of Plaintiffs Motion to Compel Further 8 Responses to Plaintiffs Special Interrogatories. 9 3. Plaintiff served her first set of discovery requests on July 25, 2017, including the first set of 10 requests for production of documents. Defendant served its initial responses on September 12,2017. A true 11 and correct copy of Defendant's Responses to Plaintiffs Special Interrogatories, Set One is attached as 12 Exhibit I . 13 4. On September 21, 2017, Plaintiff sent correspondence to Defendant detailing deficiencies 14 in Defendant's responses. A true and correct copy of Plaintiff s correspondence of September 21, 2017 is 15 attached as Exhibit 2. 16 5. Plaintiff followed up regularly over the following month, including emails on September 26, 17 28,29, October 2,4, 6, 9, 10, 11, 13, 17, 18, 23, 2017 along with a number of voicemail messages. A true 18 and correct copy of the email chain is attached as Exhibit 3. 19 6. Plaintiff and Defendantfinallymet and conferred telephonically on October 24,2017. During 20 that meet and confer session. Defendant maintained two different positions in regard to the various deficient 21 responses: 1) Defendant agreed that the responses were deficient and promised to remedy the deficiencies 22 through the provision of supplemental responses, but would "not provide a timeline as to when those 23 [would] be provided"; and 2) Defendant asserted that the discovery sought was "merits" discovery and 24 stated it would not produce it without Court intervention. A true and correct copy of the confirmatory email 25 exchange regarding the October 24,2017 meet and confer is attached as Exhibit 4. Notably, Defendant did 26 assert during the telephonic conference that it would willingly produce even that discovery it considered 27 "merits" if the Court declined to sequence discovery. 28 7. Although Plaintiff followed up regularly in the interim and innumerable email MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 1 CASE No. 34-2017-00210560 1 correspondence were exchanged, over a month later. Defendant had still yet to provide supplemental 2 responses, produce documents, or provide a date certain as to the anticipated production. Further, no further 3 ground was gained in regard to the discovery that was undeniably in dispute, that Defendant outright refused 4 to produce without a Court order. The delay forced Plaintiff to file herfirstset of motions to compel further 5 responses in regard to the deficient discovery responses, which she did on December 1,2017 and December 6 4, 2017. Defendant did not provide the promised supplemental responses to Plaintiffs discovery requests 7 until December 6,2017, with the further document production made thereafter on December 7,2017. A true 8 and correct copy of Defendant's Supplemental Responses to Special Interrogatories, Set One is attached as 9 Exhibit 5. Thus, it was only after Plaintiff incurred the fees and costs associated with drafting and filing the 10 motions that Defendant provided the supplemental responses to a number of the outstanding discovery 11 requests and the associated further document production. 12 8. At Plaintiffs request. Defendant provided further detail in regard to its responses referring 13 Plaintiff to documents. However, Defendant provided this information solely via written correspondence. 14 A true and correct copy of this correspondence is attached as Exhibit 6. Defendant would not provide signed 15 and verified responses containing the necessary specification, leaving its responses deficient and non- 16 compliant. A true and correct copy of the email correspondence is attached as Exhibit 7. 17 9. Plaintiff withdrew the motions on December 15, 2017, roughly one week after Defendant 18 provided its promised responses and five days before Defendant's Opposition was due. Plaintiff reviewed 19 Defendant's discovery responses and withdrew the motions the same day Defendant requested that Plaintiff 20 withdraw the motions. Plaintiff withdrew the motions for efficiency purposes, so as not to waste the Parties' 21 or the Court's resources organizing a motion as to which discovery still required a court order. Plaintiff 22 sought to refine the motions so that they would address only the discovery that remained outstanding and, 23 also, so Plaintiff could attempt to avoid Defendant's continued dishonest claim that Plaintiff had not 24 exhausted meet and confer efforts. 25 10. Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly and 26 exhaustively meet and confer, Plaintiff sought to meet and confer with Defendant again after withdrawing, 27 per Defendant's request, the first set of motions to compel. A true and correct copy of the email 28 correspondence of December 18,2017 is attached as Exhibit 8. The Parties met and conferred telephonically MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 2 CASE No. 34-2017-00210560 1 on December 20,2017, addressing how Defendant's production altered the dispute detailed in the motions 2 and further exhausting any remaining issues. A true and correct copy of the confirmatory email is attached 3 as Exhibit 9. 4 11. Plaintiff filed the second set of motions to compel further responses on January 17, 2018, 5 pared down to only those discovery requests that Defendant had maintained from its initial responses that 6 it would not provide without court intervention. 7 12. Defendantfiledits Motion to Sequence Discovery on January 23,2018. Defendant's Motion 8 to Sequence addressed the very same discovery at issue in Plaintiffs second set of Motions to Compel. The 9 same day. Defendant requested that Plaintiff withdraw her pending motions to compel. A true and correct 10 copy of the email correspondence is attached as Exhibit 10. 11 13. Plaintiff withdrew the second set of Motions to Compel on January 30,2018, only one week 12 after Defendantfiledits Motion to Sequence Discovery. Plaintiff reviewed Defendant's motion, researched 13 its legal positions, and, pursuant to Defendant's request of January 23, 2018, withdrew the motions. 14 Plaintiffs counsel attempted to call Defendant's counsel earlier in the day to alert them to the withdrawal 15 as early as possible and apologized via email correspondence for the inconvenience to Defendant's counsel 16 because of Plaintiff s counsel's inability to withdraw the motions earlier without prejudicing Plaintiff. A 17 true and correct copy of the email correspondence is attached as Exhibit 11. The delay in the withdrawal 18 was not gamesmanship, but a symptom of Defendant's failure to properly and fully meet and confer 19 regarding its motion to sequence, as well as Plaintiffs counsel's obligation to Plaintiff to preserve her rights 20 in regard to the at-issue discovery. 21 14. Six (6) days after Plaintiff withdrew her motions, on February 5,2018, Defendant served its 22 Motion for Summary Adjudication. Defendant's MSA was filed on February 7, 2018. 23 15. Defendant's Motion to Sequence Discovery was denied without prejudice on February 23, 24 2018. Plaintiff immediately sought to meet and confer regarding the effect of the order on the discovery that 25 still remains in dispute as no order has yet been issued to resolve the longstanding issues. Defendant 26 declined Plaintiffs request to meet and confer regarding Plaintiffs upcoming Motions to Compel Further 27 Responses. A true and correct copy of the email exchange is attached as Exhibit 12. 28 16. Without even a request to meet and confer, Defendant re-filed its Motion to Sequence on MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 3 CASE No. 34-2017-00210560 1 March 9, 2018, scheduled to be heard in Department 54 on April 9, 2018. 2 3 I declare under penalty of perjury under the laws of the State of California that the foregoing is true 4 and correct. Executed this 20th day of March, 2018, at La Jolla, Califomia. 5 6 7 VICTORIA B. RIVAPALA( APALACIO 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY CASE No. 34-2017-00210560 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT #1 27 28 MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY 5 CASE No. 34-2017-00210560 1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall 3 Suite 3000 Sacramento, CA 95814-4497 '4 Telephone: +1 916 447 9200 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) 6 stephanie.lee@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 7 777 South Figueroa Street, Suite 3200 Los Angeles, California 90017 8 Telephone: (213)629-2020 Facsimile: (213) 612-2499 9 Attomeys for Defendant 10 HEALTH NET OF CALIFORNIA, INC. U SUPERIOR COURT OF THE STATE OF CALIFORNLA 12 COUNTY OF SACRAMENTO 13 14 ANDREA SPEARS, an individual, on behalf of Case No. 34-2017-00210560 15 herself and on behalf of all persons similzirly situated,. DEFENDANT HEALTH NET OF 16 CALIFORNIA, INC.'S RESPONSES TO Plaintiff, PLAINTIFF'S SPECIAL 17 INTERROGATORIES, SET ONE 18 Date Action Filed: April 5, 2017 HEALTH NET OF CALIFORNIA, INC., a Trial Date: None Set 19 Califomia Corporation, and Does 1 through 50, Inclusive,, 20 Defendants. 21 22 PROPOUNDING PARTY: Plaintiff, ANDREA SPEARS 23 RESPONDING PARTY: Defendant, HEALTH NET OF CALIFORNIA, INC. 24 SET NO.: ONE(l) 25 26 27 28 0HSUSA;767194169.5 DEFENDANT HEALTH NET OF CALIFORNIA. INC.'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE 1 Pursuant to sections 2030 et seq. ofthe Code of Civil Procedure, Defendant Health Net of 2 Califomia, Inc. ("Defendant") responds to the First Set of Special Interrogatories served upon it by 3 Plaintiff Andrea Spears ("Plaintiff) as follows: 4 GENERAL OBJECTIONS AND RESPONSES 5 The following responses are made solely for the purpose of this litigation and are based on 6 infonnation presently known emd available to Defendant. Discovery is still ongoing and Defendant 7 reserves the right to supplement these responses with subsequently discovered information and/or 8 to introduce such information at the time of the trial. 9 Each response is subject to all objections as to competence, relevance, materiality, 10 proprietary, subject matter, admissibility and any and all other objections or grounds that would 11 require exclusion of the responses or documents produced by Defendant, or any part thereof, if any 12 "of these responses or documents were presented at court. All appropriate objections and grounds 13 are hereby reserved and may be interposed at trial regarding the introduction into evidence of a 14 response to Plaintiffs Special Interrogatories. 15 No response to these interrogatories constitutes or should be construed as an admission 16 respecting relevancy or admissibility of the disclosed information, or the tmth or accuracy of any 17 statement, characterization or other fact contained in any response to these interrogatories. 18 Defendant expressly does not concede the relevancy or materiality of any of these interrogatories 19 or the subject matter to which they refer. 20 The fact that Defendant has responded to or objected to any interrogatory or part thereof 21 may not be taken as an admission about the existence or nonexistence of any fact, or that such 22 response constitutes relevant evidence. No implied admissions whatsoever are intended by these 23 responses. The fact that Defendant has responded to part or all of any interrogatory shall not be 24 construed to be a waiver of any obj ection to part or all of any other interrogatory. Nothing contained 25 herein shall be construed as an imphed admission of the existence or nonexistence ofany fact. 26 To the extent these interrogatories call for information which constitutes material prepared 27 in anticipation of litigation or for trial, mformation or material protected by the attomey-client 28 privilege, the work product doctrine, the joint defense privilege and/or the common interest OHSUSA:767194169.5 ^ . DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE 1 privilege or any other privilege. Defendant objects to each and every such interrogatory and will 2 not supply or produce any such information. To the extent any interrogatory seeks information 3 relating to legal conclusions, opinions, theories and/or research of Defendant and Defendant's 4 counsel. Defendant objects and will not provide such information. Moreover, in responding to any 5 interrogatory potentially calling for a legal conclusion, Defendant does not admit, either expressly 6 or impliedly, that any such response adopts any of the legal conclusions contained in the 7 interrogatory. These responses shall not constitute a waiver of any privilege or any other ground 8 for objecting to discovery with respect to such response, nor shall inadvertent disclosure waive the 9 right of Defendant to object to the use of such information during any subsequent proceeding. 10 To the extent any interrogatory seeks information relating to confidential persormel or other 11 information of persons other than Plaintiff, Defendant objects to each and every interrogatory on 12 the grounds that such interrogatory is overbroad, seeks information that is not relevant to the subject 13 matter of this action, is not reasonably calculated to lead to the discovery of admissible evidence 14 and invades the privacy rights of such other persons. To the extent any interrogatory violates 15 Defendant's right to privacy or calls for the disclosure of confidential and/or proprietary 16 information or information otherwise protected as a trade secret, Defendant objects to each and 17 every such interrogatory and will not supply or produce any such information except pursuant to a 18 Protective Order goveming the production of such information entered in this matter. 19 Defendant objects to the purported definitions and, instmctions set forth in the 20 interrogatories on the grounds that they are vague, ambiguous, overbroad, burdensome and 21 oppressive and Defendant undertakes no obligation except as those that may be provided by the 22 Code of Civil Procedure. 23 Defendant incorporates by this reference each and all ofthe foregoing General Objections 24 into the following enumerated Responses. 25 RESPONSE TO SPECIAL INTERROGATORIES 26 SPECIAL INTERROGATORY NO. 1: 27 Please state PLAINTIFF'S dates of employment, rates of pay, and job titles during the 28 RELEVANT TIME PERIOD. 0HSUSA:767194169.5 " ' DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSES TO PLAINTIFF'S SPECIAL INTERROGATORIES, SET ONE 1 RESPONSE TO SPECIAL INTERROGATORY NO. 1: 2 In addition to the foregoing General Objections, Defendant objects to this interrogatory on 3 the grounds that it is vague and ambiguous. Defendant also objects to this interrogatory on the 4 grounds it is compound, overbroad, unduly burdensome and seeks information that is neither 5 relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of 6 admissible evidence. Discovery is on-going and Defendant reserves the right to amend its response. 7 Subject to and without waiving the foregoing objections. Defendant responds as follows: 8 Pursuant to Civil Procedure Code sections 2030.230 and 2030.210(a)(2), Defendant refers to 9 Plaintiffs personnel file, wage statements and other documents produced concurrently herewith 10 and in connection with this litigation. 11 SPECIAL INTERROGATORY NO. 2; 12 Please state the date ofPLAINTIFF'Sfmal paycheck. 13 RESPONSE TO SPECIAL INTERROGATORY NO. 2: 14 In addition to the foregoing General Objections, Defendant objects to this interrogatory on 15 the grounds that it is vague and ambiguous. Defendant also objects to this interrogatory on the 16 pounds it is compound, overbroad, unduly burdensome and seeks information that is neither 17 relevant to