Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) iHQGRS'ES
tjlong@orrick.com
2 ORRICK, HERRINGTON & SUTCLIFFE LLP MAR 20 PH 2=01
400 Capitol Mall, Suite 3000
3 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
9 Attomeys for Defendant
HEALTH NET OF CALIFORNL\, INC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated.
' 15 Plaintiff, REPLY MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
16 DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR
17 HEALTH NET OF CALIFORNIA, INC., a MONETARY SANCTIONS
Califomia Corporation; and Does 1 through 50,
18 inclusive. Date: March 27, 2018
Time: 9:00 a.m.
19 Defendants. Dept: 54
20 Complaint Filed: April 5, 2017
FAC Filed: June 29, 2017
21 Consolidated Complaint Filed: Dec. 21, 2017
TOMAS R. ARANA, on behalf of himself, all
Z 22
others similarly situated. Complaint Filed: August 1, 2017
0 23
Plaintiff,
CC 24
V.
O 25
HEALTH NET OF CALIFORNIA, INC., a
26 Califomia corporation; and DOES 1-50,
inclusive,
27
Defendant.
28
4144-0718-2098.4
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR MONETARY SANCTIONS
1 I. INTRODUCTION
2 Health Net brought this motion for sanctions because at some point enough is enough.
3 Sometimes (and unfortunately) a party needs the Court to intervene and send a message to a
4 litigant: this is not the way to conduct discovery. Here, Spears' counsel have filed five needless
5 discovery motions, one they lost and four they withdrew, but only after forcing Health Net to
6 incur the expense of opposing them. The withdrawal of their motions also followed a pattem.
7 Instead of promptly notifying Health Net that they were withdrawing their motions, counsel
8 waited. With the first set of motions to compel. Spears' lawyers waited three days, during which
9 time Health Net was preparing opposition papers. With their second set of motions to compel,
10 they waited until after the filing deadline, even though they have now confirmed that they had
11 decided earlier that day to withdraw their motions.
12 Spears' counsel's opposition brief is filled with obfuscation and distraction. But boiled
13 down. Spears' counsel try to justify their conduct in five ways.
14 First, they mispresent the facts. For example, they claim at the outset of their brief that
15 the "Court has raled that Plaintiffs positions taken in Plaintiffs discovery motions were
16 substantially justified." Opp., 1:1-2. This is an untrue statement. Health Net challenges Spears'
17 counsel to produce any ruling by this Court on any of their discovery motions in which the Court
18 has so ruled.'
19 Second, Spears' counsel claim that their discovery motions, were the only reason Health
20 Net ultimately produced documents. Again, not true. The undisputed record demonstrates that
21 Health Net did what it had said it would do: produce all responsive documents and responses that
22 were not to be addressed by the motion to sequence before the December 8'*' CMC before Judge
23
24
25
26
,' Spears' counsel also claim that Health Net responded to a meet-and-confer request with "insults,
27 condescension, and name-calling." Opp., 10:9-10. Health Net invites the Court to review the text
of the e-mails from Health Net's counsel to which counsel cites {see Exhibit 10 to Rivapalacio
28 Declaration) to determine whether the text supports counsel's claims in their brief. It doesn't.
-1-
REPLY IN SUPPORT OF MOTION FOR MONETARY SANCTIONS
1 Perkins. Health Net did not need the prompting of discovery motions to follow through on its
2 word.^
3 Third, Spears' counsel claim that Health Net's refiling the motion to sequence in this
4 Department amounts to forum shopping. Health Net did so because that is what Judge Perkins
5 invited it to do. Regardless, what the refiling has to do with justifying Spears' counsel's
6 behavior, which occurred months eariier is anyone's guess. If anything, the history related to the
7 motion to sequence underscores why Spears' counsel should never have filed her discovery
8 motions in the first place.
9 Fourth, Plaintiff Spears' counsel point to Health Net having filed a Motion for Summary
10 Adjudication ("MSA"). How or why Health Net's MSA should be constmed as a shield against
11 Spears' counsel's abuse of the discovery process is unclear. But regardless, the MSA came as no
12 surprise. Health Net informed Plaintiffs that it intended to file the MSA in late 2017, and it
13 produced all the discovery necessary and provided all the evidence to address this motion long
14 ago. To the extent that Spears' counsel believes they need additional discovery to oppose the
15 MSA, it bears mentioning that they have not sought any.
16 Finally, Spears' counsel try to argue that they were justified in filing these five needless
17 discovery motions because Health Net has acted with tactical considerations in mind. While it
18 may be tme that Health Net's counsel has acted tactically - indeed, their job is to defend Health
19 Net after all - Plaintiff Spears' counsel's non sequitur "rationale" does not explain why they
20 decide to file five needless motions, four they withdrew and one they lost.
21 Health Net did not bring this motion to gain any advantage. Rather, Health Net is asking
22 the Court to send Plaintiff Speeirs' counsel a message by awarding the modest sanctions Health
23 Net is seeking: stop abusing the discovery process.
24
25
26
27
^ And, of course, Plaintiff Spears' counsel's argument does not make sense when one considers
28 the second set of motions to compel they filed. All discovery that was not the subject of the
motion to sequence had been produced weeks before they filed those motions.
-2-
4144-0718-2098.4 ^;
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS
1 II. ARGUMENT
2 A. Spears' Counsel Essentially Concede That They Engaged In Repeated
Discovery Abuses By Filing Needless Discovery Motions.
3
4 An abuse of discovery procedures in one instance can imply a continuing intent to abuse
5 in other instances. Obregon v. Superior Court, 67 Cal. App. 4th 424, 431 (1998). Any discovery
6 request, even an initial one, can be misused in an attempt to generate settlement leverage by
7 creating burden, expense, embarrassment, distraction, etc. Id. It is a judge's responsibility to
8 confrol such abuse. Id. {citing Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th
9 216, 221 (1997)). While parties are allowed to disagree in discovery disputes, they are
10 nonetheless required to make a reasonable and good faith attempt to informally resolve these
11 discovery disputes prior to reaching an impasse which, as Health Net has explained, Spears'
12 counsel failed to do on multiple occasions.
13 As the Obregon court noted, "In a larger, more complex discovery context, a greater effort
14 at informal resolution may be warranted." Obregon, 67 Cal. App. 4th at 431. This lawsuit is
15 complex - and has been designated as such. While more is expected of counsel. Spears' counsel
16 have instead shown a tendency to be quick with pulling the trigger in filing motions. Counsel
17 have also followed a pattem that seems designed to unnecessarily increase the cost to Health Net.
18 This should stop. The Court should intervene and sanction Spears' counsel to (hopefully) prevent
19 further abuses.
20 B. Spears' Counsel Should Never Have Filed Their Belaire West Motion.
21 The first needless discovery motion filed by Spears' counsel had to do with the Belaire-
22 West'Hoiice. Regardless of how Spears'counsel may now try to re-characterize their conduct,
23 the Court's mlings on that motion controls. The Coiirt first continued the hearing on the motion
24 with the admonition to Spear's counsel, "the Court must remind all counsel but especially
25 [Plaintiff Spears'] that given the number of motions such as this which must be addressed on a
26 daily basis, there are simply not enough judicial resources available to resolve each and every
27 discovery dispute that could have and should have been resolved informally." Declaration of
28 Stephanie Gail Lee in support of Health Net's Motion for Sanctions ("Lee Dec"), ^15, Exh. H.
4144-0718-2098.4 '
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS
1 When Spears' counsel pressed on, the Court denied their motion in its entirety. Id. at ^ 18, Exh.
2 K. Never did the Court mle that Spears'position on this motion was substantially justified. Id.
3 Of course, the whole motion should have been avoided had Plaintiff Spears' counsel spent more
4 time meeting and conferring, as opposed to finger-pointing.
5 C. Spears' Counsel Should Never Have Filed The Four Motions To CompeL
Which They Withdrew.
6 \
7 The next four motions Spears' counsel filed, all of which they withdrew, should never
8 have been filed in the first place. And in withdrawing them. Plaintiff Spears' counsel should have
9 promptly notified Health Net, which they deliberately did not do.
10 Plaintiff Spears' counsel should not have filed these motions because they all relate to
11 matters that are the subject of the separate motion to sequence. To begin with, Spear's counsel
12 essentially concedes that their motions overlapped with the motion to sequence discovery. Opp.
13 4:15-16. Nor could they do otherwise. The parties had agreed in the fall of 2017 (October 25'^
14 to be precise) to submit their disagreement concerning whether certain discovery should be
15 sequenced to Judge Perkins at the December 2017 CMC. Lee Dec, ^ 9, Exh. B. The parties
16 knew then what was in dispute and what was not. Health Net provided responses and documents
17 to the discovery that was not in dispute prior to the December CMC, which it had promised all
18 along it would do. Id. at 19, 22, Exh. L. Health Net also further protected Plaintiffs' interests
19 by agreeing to extend the applicable deadlines to file any motions to compel in case Judge
20 Perkins did not decide all of the outstanding issues. Id. at ^ 19, Exh. L. At the CMC, Judge
21 Perkins agreed to mle on the matters, but wanted briefing. Id. at f 23, Exh. P. He set a hearing
22 on the matter for Febmary 15, 2018. Id.
23 Spears' counsel do not claim that they were unaware of all of these facts, nor could they.
24 Counsel attended the CMC, for example. Id. There is also correspondence confirming the
25 agreement to submit the matters to Judge Perkins, as well as correspondence confirming the
26 existence of the agreement to extend the motions deadline, all pf which is before the Court. Id. at
27 ^Tl 9, 19, Exhs. B, L. Yet even though they were well aware that Judge Perkins was set to decide
28 the outstanding issues (indeed, they had agreed that he should), they filed motions in this
4144-0718-2098.4 "^ "
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS
1 Department directed at those very same issues. Id. at ^ 21, Exhs. N, O. And when Health Net
2 pointed all of this out in the meet-and-confer process it tried to engage in after these motions had
3 been filed. Spears' counsel should have immediately recognized the validity of Health Net's
4 concems - but they didn't. ^ Id. at 24,25, Exhs. Q, R. Instead, counsel deliberately waited to
5 decide whether and when to withdraw these motions.
6 With the first set of motions to compel, Plaintiff Spears' counsel now discloses that they
7 decided to withdraw them on December 15"^ but then waited three days (until December 18'*^^ to
8 notify Health Net. Opp., 4:21-23; Lee Dec, \ 28, Exh. T. During those three days, of course,
9 Health Net was working on the opposition papers to these motions. Lee Dec, ^ 28, Exh. T. With
10 the second set of motions to compel. Spears' counsel waited until after the filing deadline (4:00
11 p.m.) to inform Health Net that they were going to withdraw these motions, even though by their
12 own admission, they had decided to do so earlier in the day. Id. at 32, 33, Exhs. X, Y. Spears'
13 counsel's conduct in delaying notifying Health Net that they were going to withdraw these
14 motions belies an intent to cause Health Net to expend urmecessary resources to oppose their
15 needless motions. Such conduct is antithetical to principles underlying the discovery process and,
16 instead, is an abuse.
17 All of the work (and expense) Health Net incurred could have been avoided had Spears'
18 counsel never filed these motions in the first instance or had immediately withdrawn them when
19 Health Net asked them to do so. Spears' counsel's conduct warrants sanctions.
D. The Motion To Sequence Is Properly Before This Court.
21 As mentioned above, the parties asked Judge Perkins to decide issues relating to the
22 sequencing of discovery. Id. at ^ 9, Exh. B. He agreed to do so at the December 8"^ CMC. Id. at
23 ^ 23, Exh. P. Ultimately, however. Judge Perkins determined that it would make more sense for
24 the parties to file this motion with this Department, which Health Net did.'* Declaration of
25
' If Spears' counsel needed additional time to consider what they already knew, they also could
2^ have extended the time Health Net would need to file their opposition papers. Spears' counsel
made no such offer.
27
" Judge Perkins did not mle on the merits, as Spears' counsel suggests. Reply Lee Dec, ^ 2, Exh.
28 A. Judge Perkins denied the motion "without prejudice to seek similar specific relief by the
appropriate discovery motion directed to the law and motion department." Id.
4144-0718-2098.4 " ^ " '
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS
1 Stephanie Gail Lee in support of Health Net's Reply ("Reply Lee Dec"), ^ 2, Exh. A. Before
2 filing that motion here. Health Net did attempt to meet and confer with Plaintiff Spears' counsel.^
3 Id. at^3, Exh. B. Unfortunately, that effort went nowhere because Spears' counsel essentially
4 repeated what they had relayed before, without any attempt to work through the issues or
5 compromise. Id. '
6 Of course, which Department decides the motion to sequence discovery, like the motion
7 itself, does not explain why Spears' counsel decided to file five unnecessary discovery motions.
8 If anything, the history of the motion to sequence underscores why there is merit to this sanctions
9 motion. Fully knowing that the motion to sequence would resolve all the issues raised in their
10 discovery motions (and that they would be protected by the extensions Health Net granted if the
11 Court did not). Spears' counsel should never have filed their four motions to compel in the first
12 place.
13 E. Health Net's MSA Has Nothing To Do With The Issues Presented By This
Motion.
14
15 In the CMC Statement Health Net submitted prior to the December 8"' CMC, Health Net
16 informed Judge Perkins and Plaintiffs that it intended to file its MSA attacking Plaintiffs' regular
17 rate and rounding claims. Reply Lee Dec, ^ 5, Exh. C. There was no surprise. Moreover, and
18 consistent with its efforts to streamline this case. Health Net explained that since these claims
19 presented legal issues based on undisputed facts, it made sense to deal with these claims early on.
20 Well before Health Net filed its MSA, it had provided all the necessary discovery relevant to the
21 MSA. To the extent that Health Net included additional evidence in its moving papers (about
22 which neither Plaintiff had asked for up to that point), Plaintiffs have had ample opportunity to
23 propound written discovery concerning that evidence or to depose the declarants who submitted
24 declarations in support of Health Net's MSA. To date, neither Plaintiff has initiated any such
25 discovery. Id. at ^ 7.
26
27
28 ^ Plaintiff Arana did not oppose the motion to sequence when it was pending before Judge
Perkins. Id. at 14.
4144-0718-2098.4 -6-
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS
1 Calling out Health Net's MSA is a red herring, and it has nothing to do with whether
2 Spears' counsel should have filed and forced Health Net to oppose their discovery motions. This
3 is particularly so when one realizes that Health Net filed its MSA after Spears's counsel filed
4 their discovery motions. Id. at 7.
5 III. CONCLUSION
6 The discovery abuses chronicled by Health Net warrant the sanctions requested. For all
7 the foregoing reasons. Health Net requests its motion be granted in fiiU.
8
9 Dated: March 20, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
10
11
Y J. LONG
12 s for Defendant
F CALIFORNIA, INC.
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4144-0718-2098.4 ~ '
REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) iHQGRS'ES tjlong@orrick.com 2 ORRICK, HERRINGTON & SUTCLIFFE LLP MAR 20 PH 2=01 400 Capitol Mall, Suite 3000 3 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 9 Attomeys for Defendant HEALTH NET OF CALIFORNL\, INC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated. ' 15 Plaintiff, REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 16 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR 17 HEALTH NET OF CALIFORNIA, INC., a MONETARY SANCTIONS Califomia Corporation; and Does 1 through 50, 18 inclusive. Date: March 27, 2018 Time: 9:00 a.m. 19 Defendants. Dept: 54 20 Complaint Filed: April 5, 2017 FAC Filed: June 29, 2017 21 Consolidated Complaint Filed: Dec. 21, 2017 TOMAS R. ARANA, on behalf of himself, all Z 22 others similarly situated. Complaint Filed: August 1, 2017 0 23 Plaintiff, CC 24 V. O 25 HEALTH NET OF CALIFORNIA, INC., a 26 Califomia corporation; and DOES 1-50, inclusive, 27 Defendant. 28 4144-0718-2098.4 REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR MONETARY SANCTIONS 1 I. INTRODUCTION 2 Health Net brought this motion for sanctions because at some point enough is enough. 3 Sometimes (and unfortunately) a party needs the Court to intervene and send a message to a 4 litigant: this is not the way to conduct discovery. Here, Spears' counsel have filed five needless 5 discovery motions, one they lost and four they withdrew, but only after forcing Health Net to 6 incur the expense of opposing them. The withdrawal of their motions also followed a pattem. 7 Instead of promptly notifying Health Net that they were withdrawing their motions, counsel 8 waited. With the first set of motions to compel. Spears' lawyers waited three days, during which 9 time Health Net was preparing opposition papers. With their second set of motions to compel, 10 they waited until after the filing deadline, even though they have now confirmed that they had 11 decided earlier that day to withdraw their motions. 12 Spears' counsel's opposition brief is filled with obfuscation and distraction. But boiled 13 down. Spears' counsel try to justify their conduct in five ways. 14 First, they mispresent the facts. For example, they claim at the outset of their brief that 15 the "Court has raled that Plaintiffs positions taken in Plaintiffs discovery motions were 16 substantially justified." Opp., 1:1-2. This is an untrue statement. Health Net challenges Spears' 17 counsel to produce any ruling by this Court on any of their discovery motions in which the Court 18 has so ruled.' 19 Second, Spears' counsel claim that their discovery motions, were the only reason Health 20 Net ultimately produced documents. Again, not true. The undisputed record demonstrates that 21 Health Net did what it had said it would do: produce all responsive documents and responses that 22 were not to be addressed by the motion to sequence before the December 8'*' CMC before Judge 23 24 25 26 ,' Spears' counsel also claim that Health Net responded to a meet-and-confer request with "insults, 27 condescension, and name-calling." Opp., 10:9-10. Health Net invites the Court to review the text of the e-mails from Health Net's counsel to which counsel cites {see Exhibit 10 to Rivapalacio 28 Declaration) to determine whether the text supports counsel's claims in their brief. It doesn't. -1- REPLY IN SUPPORT OF MOTION FOR MONETARY SANCTIONS 1 Perkins. Health Net did not need the prompting of discovery motions to follow through on its 2 word.^ 3 Third, Spears' counsel claim that Health Net's refiling the motion to sequence in this 4 Department amounts to forum shopping. Health Net did so because that is what Judge Perkins 5 invited it to do. Regardless, what the refiling has to do with justifying Spears' counsel's 6 behavior, which occurred months eariier is anyone's guess. If anything, the history related to the 7 motion to sequence underscores why Spears' counsel should never have filed her discovery 8 motions in the first place. 9 Fourth, Plaintiff Spears' counsel point to Health Net having filed a Motion for Summary 10 Adjudication ("MSA"). How or why Health Net's MSA should be constmed as a shield against 11 Spears' counsel's abuse of the discovery process is unclear. But regardless, the MSA came as no 12 surprise. Health Net informed Plaintiffs that it intended to file the MSA in late 2017, and it 13 produced all the discovery necessary and provided all the evidence to address this motion long 14 ago. To the extent that Spears' counsel believes they need additional discovery to oppose the 15 MSA, it bears mentioning that they have not sought any. 16 Finally, Spears' counsel try to argue that they were justified in filing these five needless 17 discovery motions because Health Net has acted with tactical considerations in mind. While it 18 may be tme that Health Net's counsel has acted tactically - indeed, their job is to defend Health 19 Net after all - Plaintiff Spears' counsel's non sequitur "rationale" does not explain why they 20 decide to file five needless motions, four they withdrew and one they lost. 21 Health Net did not bring this motion to gain any advantage. Rather, Health Net is asking 22 the Court to send Plaintiff Speeirs' counsel a message by awarding the modest sanctions Health 23 Net is seeking: stop abusing the discovery process. 24 25 26 27 ^ And, of course, Plaintiff Spears' counsel's argument does not make sense when one considers 28 the second set of motions to compel they filed. All discovery that was not the subject of the motion to sequence had been produced weeks before they filed those motions. -2- 4144-0718-2098.4 ^; REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS 1 II. ARGUMENT 2 A. Spears' Counsel Essentially Concede That They Engaged In Repeated Discovery Abuses By Filing Needless Discovery Motions. 3 4 An abuse of discovery procedures in one instance can imply a continuing intent to abuse 5 in other instances. Obregon v. Superior Court, 67 Cal. App. 4th 424, 431 (1998). Any discovery 6 request, even an initial one, can be misused in an attempt to generate settlement leverage by 7 creating burden, expense, embarrassment, distraction, etc. Id. It is a judge's responsibility to 8 confrol such abuse. Id. {citing Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App. 4th 9 216, 221 (1997)). While parties are allowed to disagree in discovery disputes, they are 10 nonetheless required to make a reasonable and good faith attempt to informally resolve these 11 discovery disputes prior to reaching an impasse which, as Health Net has explained, Spears' 12 counsel failed to do on multiple occasions. 13 As the Obregon court noted, "In a larger, more complex discovery context, a greater effort 14 at informal resolution may be warranted." Obregon, 67 Cal. App. 4th at 431. This lawsuit is 15 complex - and has been designated as such. While more is expected of counsel. Spears' counsel 16 have instead shown a tendency to be quick with pulling the trigger in filing motions. Counsel 17 have also followed a pattem that seems designed to unnecessarily increase the cost to Health Net. 18 This should stop. The Court should intervene and sanction Spears' counsel to (hopefully) prevent 19 further abuses. 20 B. Spears' Counsel Should Never Have Filed Their Belaire West Motion. 21 The first needless discovery motion filed by Spears' counsel had to do with the Belaire- 22 West'Hoiice. Regardless of how Spears'counsel may now try to re-characterize their conduct, 23 the Court's mlings on that motion controls. The Coiirt first continued the hearing on the motion 24 with the admonition to Spear's counsel, "the Court must remind all counsel but especially 25 [Plaintiff Spears'] that given the number of motions such as this which must be addressed on a 26 daily basis, there are simply not enough judicial resources available to resolve each and every 27 discovery dispute that could have and should have been resolved informally." Declaration of 28 Stephanie Gail Lee in support of Health Net's Motion for Sanctions ("Lee Dec"), ^15, Exh. H. 4144-0718-2098.4 ' REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS 1 When Spears' counsel pressed on, the Court denied their motion in its entirety. Id. at ^ 18, Exh. 2 K. Never did the Court mle that Spears'position on this motion was substantially justified. Id. 3 Of course, the whole motion should have been avoided had Plaintiff Spears' counsel spent more 4 time meeting and conferring, as opposed to finger-pointing. 5 C. Spears' Counsel Should Never Have Filed The Four Motions To CompeL Which They Withdrew. 6 \ 7 The next four motions Spears' counsel filed, all of which they withdrew, should never 8 have been filed in the first place. And in withdrawing them. Plaintiff Spears' counsel should have 9 promptly notified Health Net, which they deliberately did not do. 10 Plaintiff Spears' counsel should not have filed these motions because they all relate to 11 matters that are the subject of the separate motion to sequence. To begin with, Spear's counsel 12 essentially concedes that their motions overlapped with the motion to sequence discovery. Opp. 13 4:15-16. Nor could they do otherwise. The parties had agreed in the fall of 2017 (October 25'^ 14 to be precise) to submit their disagreement concerning whether certain discovery should be 15 sequenced to Judge Perkins at the December 2017 CMC. Lee Dec, ^ 9, Exh. B. The parties 16 knew then what was in dispute and what was not. Health Net provided responses and documents 17 to the discovery that was not in dispute prior to the December CMC, which it had promised all 18 along it would do. Id. at 19, 22, Exh. L. Health Net also further protected Plaintiffs' interests 19 by agreeing to extend the applicable deadlines to file any motions to compel in case Judge 20 Perkins did not decide all of the outstanding issues. Id. at ^ 19, Exh. L. At the CMC, Judge 21 Perkins agreed to mle on the matters, but wanted briefing. Id. at f 23, Exh. P. He set a hearing 22 on the matter for Febmary 15, 2018. Id. 23 Spears' counsel do not claim that they were unaware of all of these facts, nor could they. 24 Counsel attended the CMC, for example. Id. There is also correspondence confirming the 25 agreement to submit the matters to Judge Perkins, as well as correspondence confirming the 26 existence of the agreement to extend the motions deadline, all pf which is before the Court. Id. at 27 ^Tl 9, 19, Exhs. B, L. Yet even though they were well aware that Judge Perkins was set to decide 28 the outstanding issues (indeed, they had agreed that he should), they filed motions in this 4144-0718-2098.4 "^ " REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS 1 Department directed at those very same issues. Id. at ^ 21, Exhs. N, O. And when Health Net 2 pointed all of this out in the meet-and-confer process it tried to engage in after these motions had 3 been filed. Spears' counsel should have immediately recognized the validity of Health Net's 4 concems - but they didn't. ^ Id. at 24,25, Exhs. Q, R. Instead, counsel deliberately waited to 5 decide whether and when to withdraw these motions. 6 With the first set of motions to compel, Plaintiff Spears' counsel now discloses that they 7 decided to withdraw them on December 15"^ but then waited three days (until December 18'*^^ to 8 notify Health Net. Opp., 4:21-23; Lee Dec, \ 28, Exh. T. During those three days, of course, 9 Health Net was working on the opposition papers to these motions. Lee Dec, ^ 28, Exh. T. With 10 the second set of motions to compel. Spears' counsel waited until after the filing deadline (4:00 11 p.m.) to inform Health Net that they were going to withdraw these motions, even though by their 12 own admission, they had decided to do so earlier in the day. Id. at 32, 33, Exhs. X, Y. Spears' 13 counsel's conduct in delaying notifying Health Net that they were going to withdraw these 14 motions belies an intent to cause Health Net to expend urmecessary resources to oppose their 15 needless motions. Such conduct is antithetical to principles underlying the discovery process and, 16 instead, is an abuse. 17 All of the work (and expense) Health Net incurred could have been avoided had Spears' 18 counsel never filed these motions in the first instance or had immediately withdrawn them when 19 Health Net asked them to do so. Spears' counsel's conduct warrants sanctions. D. The Motion To Sequence Is Properly Before This Court. 21 As mentioned above, the parties asked Judge Perkins to decide issues relating to the 22 sequencing of discovery. Id. at ^ 9, Exh. B. He agreed to do so at the December 8"^ CMC. Id. at 23 ^ 23, Exh. P. Ultimately, however. Judge Perkins determined that it would make more sense for 24 the parties to file this motion with this Department, which Health Net did.'* Declaration of 25 ' If Spears' counsel needed additional time to consider what they already knew, they also could 2^ have extended the time Health Net would need to file their opposition papers. Spears' counsel made no such offer. 27 " Judge Perkins did not mle on the merits, as Spears' counsel suggests. Reply Lee Dec, ^ 2, Exh. 28 A. Judge Perkins denied the motion "without prejudice to seek similar specific relief by the appropriate discovery motion directed to the law and motion department." Id. 4144-0718-2098.4 " ^ " ' REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS 1 Stephanie Gail Lee in support of Health Net's Reply ("Reply Lee Dec"), ^ 2, Exh. A. Before 2 filing that motion here. Health Net did attempt to meet and confer with Plaintiff Spears' counsel.^ 3 Id. at^3, Exh. B. Unfortunately, that effort went nowhere because Spears' counsel essentially 4 repeated what they had relayed before, without any attempt to work through the issues or 5 compromise. Id. ' 6 Of course, which Department decides the motion to sequence discovery, like the motion 7 itself, does not explain why Spears' counsel decided to file five unnecessary discovery motions. 8 If anything, the history of the motion to sequence underscores why there is merit to this sanctions 9 motion. Fully knowing that the motion to sequence would resolve all the issues raised in their 10 discovery motions (and that they would be protected by the extensions Health Net granted if the 11 Court did not). Spears' counsel should never have filed their four motions to compel in the first 12 place. 13 E. Health Net's MSA Has Nothing To Do With The Issues Presented By This Motion. 14 15 In the CMC Statement Health Net submitted prior to the December 8"' CMC, Health Net 16 informed Judge Perkins and Plaintiffs that it intended to file its MSA attacking Plaintiffs' regular 17 rate and rounding claims. Reply Lee Dec, ^ 5, Exh. C. There was no surprise. Moreover, and 18 consistent with its efforts to streamline this case. Health Net explained that since these claims 19 presented legal issues based on undisputed facts, it made sense to deal with these claims early on. 20 Well before Health Net filed its MSA, it had provided all the necessary discovery relevant to the 21 MSA. To the extent that Health Net included additional evidence in its moving papers (about 22 which neither Plaintiff had asked for up to that point), Plaintiffs have had ample opportunity to 23 propound written discovery concerning that evidence or to depose the declarants who submitted 24 declarations in support of Health Net's MSA. To date, neither Plaintiff has initiated any such 25 discovery. Id. at ^ 7. 26 27 28 ^ Plaintiff Arana did not oppose the motion to sequence when it was pending before Judge Perkins. Id. at 14. 4144-0718-2098.4 -6- REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS 1 Calling out Health Net's MSA is a red herring, and it has nothing to do with whether 2 Spears' counsel should have filed and forced Health Net to oppose their discovery motions. This 3 is particularly so when one realizes that Health Net filed its MSA after Spears's counsel filed 4 their discovery motions. Id. at 7. 5 III. CONCLUSION 6 The discovery abuses chronicled by Health Net warrant the sanctions requested. For all 7 the foregoing reasons. Health Net requests its motion be granted in fiiU. 8 9 Dated: March 20, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 10 11 Y J. LONG 12 s for Defendant F CALIFORNIA, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4144-0718-2098.4 ~ ' REPLY IN SUPPORT OF HEALTH NET'S MOTION FOR SANCTIONS