Preview
1
Timothy J. Long (SBN CA 137591)
2 GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100
3 Sacramento, Califomia 95814
Telephone: 916.442.1111
4 Facsimile: 916.448.1709 SEP 2 6 2019
longt@gtlaw.com
5
Jonathan S. Sack (SBN CA 271286)
6 GREENBERG TRAURIG, LLP
Four Embarcadero Center, Suite 3000
7 San Francisco, Califomia 94111
Telephone: 415.655.1300
8 Facsimile: 415.707.2010
sackj(2),gtlaw.com
9
Attomeys for Defendant
10 HEALTH NET OF CALIFORNIA, INC.
11
12 SUPERIOR COURT OF THE STATE OF CALIFORNIA
13 COUNTY OF SACRAMENTO
14
15 ANDREA SPEARS, an individual, on behalf of CASE NO. 34-2017-00210560-CU-OE-GDS
herself and on behalf of all persons similarly
16 situated. DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S RESPONSE TO
17 Plaintiff, PLAINTIFFS' CASE MANAGEMENT
CONFERENCE STATEMENT RE PAGA
18 TRIAL PLAN
19 HEALTH NET OF CALIFORNIA, INC., a DATE: September 27, 2019
Califomia corporation; and DOES 1 through 50, TIME: 3:00 p.m.
20 inclusive, JUDGE: Hon. Alan G. Perkins
DEPT: 35
21 Defendants.
Complaint Filed: April 5, 2017
22 FAC Filed: June 29, 2017
23 TOMAS R. ARANA, on behalf of himself, ail
others similarly situated. Complaint Filed: August 1, 2017
24 Consolidated Complaint Filed: Dec. 21, 2017
Plaintiff,
25 BY FAX
26 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1-50,
27 inclusive.
Defendant.
28
CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA
TRIAL PLAN
1 TABLE OF CONTENTS
2
I. PLAINTIFFS' CASE MANAGEMENT SUBMISSION IS INADEQUATE 4
3
a. Plaintiffs Misstate the Issues in this Case 4
4
b. The CMC Submission Shows Plaintiffs' Theories of Recovery Have Shifted for the
5 PAGA Claim In an Apparent Effort Avoid Having to Submit a Trial Plan 5
6 c. The Complex Factual Issues of Plaintiffs' Claims Require a Trial Plan to Determine
Manageability at Trial 6
7
II. THE COURT ALREADY ORDERED PLAINTIFFS TO PROPOSE A TRIAL PLAN 6
8
III. THE COURT'S DIRECTIVE THAT PLAINTIFFS SUBMIT A TRIAL PLAN WAS AND IS
9 PROPER 7
10 a. The Court Has Inherent Authority to Require a Trial Plan 7
11 b. A Trial Plan Is Necessary Here to Determine the Manageability of Plaintiffs' Claims 9
12 i. Plaintiffs' Claim for Failure to Provide Meal and Rest Period Premiums
Require Individualized Assessment to Determine Liability 10
13
ii. Plaintiffs' Claim for Off-the-Clock Violations Also Require individualized
14 Assessment to Determine Liability 11
15 IV. PLAINTIFFS' SUBMISSION FAILS TO EXPLAIN HOW THE REMAINING CLAIMS CAN
BE EFFICIENTLY ADJUDICATED 12
16
V. CONCLUSION 12
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CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL
PLAN
1 T A B L E OF AUTHORITIES
^ Page(s)
^ State Cases
4
Carrington v. Starbucks Corp.
5 30 Cal.App.5th 504 (Cal. Ct. App. 2018) 10
6 Cottle V. Superior Court
(1992) 3 Cal. App. 4th 1367,1377 7
7
Turner v. Ampac Fine Chems, LLC
8 CaseNo. 34-2015-00176993 (Cal. Sup. Ct. June 1, 2018) :....8, 9, 10
9 Williams v. Superior Court,
10 3 Cal. 5th 531 (2017) 5, 7, 11
11 State Statutes
12 Cal. Code Civ. Proc. § 2019.020 4, 7, 13
13 Other Authorities
14 Cal. Rule Ct., Rule 3.400(a) 7
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CASENO. 34-2017-00210560-CU-OE-dDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TTUAL PLA>
1 In advance ofthe Case Management Conference scheduled for September 27, 2019, Defendant
2 HEALTH NET OF CALIFORNIA, INC. ("Defendant" or "HNCA") respectfully submits its response to
3 Plaintiffs ANDREA SPEARS' and TOMAS R. ARANA's (collectively, "Plaintiffs") September 20, 2019
4 Case Management Statement Re PAGA Trial Plan wherein Plaintiffs essentially argue that they should not
5 be required to submit a PAGA Trial Plan ("Trial Plan"). Plaintiffs appear to have forgotten that the Court
6 already directed Plaintiffs to submit a Trial Plan. Their submission was supposed to address the contents
7 of the Trial Plan. It doesn't. Plaintiffs' submission does not explain how any surviving claims can be tried
8 efficiently, without the trial devolving into a myriad of individualized disputes. This is Plaintiffs' burden
9 and they have not met their burden. A Trial Plan is necessary in this case to ensure that those claims can
10 be adjudicated efficiently without mnning roughshod over Defendant's due process rights. Because the
11 Court already ordered a Trial Plan, HNCA respectfully requests the Court (i) to adopt the briefing schedule
12 previously proposed to Plaintiffs in Defendant's Statement Conceming Any Trial Plan Proposed by
13 Plaintiffs; (ii) to sequence discovery in this case, subject to the Court's grant of an anticipated motion by
14 Defendant to establish the sequence and timing of discovery under Code of Civil Procedure section
15 2019.020; and (iii) to order briefing by the parties on the merits of a jury trial versus a bench trial in this
16 case.
17 I. PLAINTIFFS' CASE MANAGEMENT SUBMISSION IS INADEQUATE
18 a. Plaintiffs Misstate the Issues in this Case
19 In addition to ignoring the Court's directive to respond to Defendant's statement on the contents of
20 a Trial Plan, Plaintiffs make several misstatements of the issues before the Court. Most glaring is that
21 Plaintiffs fail to understand the Court's Minute Order that a Trial Plan in this case was necessary, and that
22 Plaintiffs must respond to Defendant's comments regarding questions 1 through 6 in the Court's Tentative
23 Ruling. 8/30/19 Min. Order. Plaintiffs' submission included none of the information sought by the Court.
24 Next, Plaintiffs make an incorrect inference that because the Court has certified one question
25 relating to clocking in, the Court does not expect the parties to submit a Trial Plan. Plaintiffs also assert
26 that the PAGA claims will be tried on the same facts and law as the certified claims and further contend
27 that a Trial Plan would not encompass the overlapping PAGA violations but only the claims that are not
28 derivative of certified claims. Neither of these statements are accurate.
4 CASENO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL
PLAN
1 b. The CMC Submission Shows Plaintiffs' Theories of Recovery Have Shifted for
2 the PAGA Claim In an Apparent Effort Avoid Having to Submit a Trial Plan.
3 In their Case Management Conference submission. Plaintiffs appear to have abandoned their theory
4 of recovery that HNCA's work demands interfered with their ability to take meal periods. (Ptlfs.' Mtn. for
5 Class Cert., at p. 3.) Instead, Plaintiffs now advance the theory they had previously utilized for their rest
6 break claim - HNCA's policies failed to advise employees how to use the pay code DTO for meal period
7 premiums. (Pltfs.' Mtn. for Class Cert., at p. 4; Pltfs.' Submission, at p. 3:28-4:4). Surely, if Plaintiffs'
8 allegation that HNCA's failure to advise employees how to use this pay code applied to the missed meal
9 period claims was accurate. Plaintiffs would have advanced this theory earlier in this litigation, which has
10 been pending for over two years. This leads to the conclusion that Plaintiffs' theory has shifted due to the
11 manageability issues the Court had foreseen when it directed Plaintiffs to submit their proposal for a Trial
12 Plan. Given that Plaintiffs' new theory of recovery lacks an evidentiary basis, the parties and the Court are
13 left with the same manageability problems resulting from Plaintiffs' original theory. Williams v. Superior
14 CoMr/, 3 Cal. 5*531,559(2017).
15 Plaintiffs also changed their theory of recovery in the recent submission for their off-the-clock
16 claim. In their motion for class certification. Plaintiffs did not point to a uniform policy or lack of policy
17 as a basis for establishing that common issues predominate; they vaguely asserted that HNCA's alleged
18 "computer and software start time procedures give rise to predominate questions of facts and law" and that
19 there is a common question of law as to whether employees should be compensated for off-the-clock time.
20 (Pltfs.' Mtn. for Class Cert., at p. 8; Def.'s Opp. to Pltfs.' Mtn. for Class Cert., at p. 10. The altemative
21 theory Plaintiffs now advanced is that "Defendant's policies and practices failed to capture all hours worked
22 by Aggrieved Employees utilizing the EMPCenter timekeeping system during the time period of January
23 1,2017 to present violated Califomia law." Apart from this statement really being a non-sequitur. Plaintiffs
24 seem to be trying to shift the Court's focus in an effort to avoid the Court's likely conclusion that the issues
25 as formerly framed (and which actually now control) would render them unmanageable at trial, since they
26 would require individualized inquiries or evidence where legally compliant policies cannot provide the
27 basis for class certification. (Def's Opp. to Pltfs.' Mtn. for Class Cert., at pp. 8-9.) Plaintiffs cannot avoid
28 their obligation to submit a trial plan by trying to change course (after the fact), even where a trial plan is
5 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRL\L
PLAN
1 not required for PAGA claims, by changing course in a manner that is inconsistent with the allegations in
2 the complaint, or s they agreed on class certification.
3 c. The Complex Factual Issues of Plaintiffs' Claims Require a Trial Plan to
4 Determine Manageability at Trial
5 The surviving claims at issue before the Court will require highly individualized determinations for
6 each plaintiff, and Plaintiffs should be required to show how these claims will tried efficiently without the
7 trial devolving into individualized disputes. The Court certified claims alleging that "MedFlxWave"
8 payments and "DenFlxWave" payments were improperly calculated from the regular rate calculation, and
9 SPOT awards, ACA Incentive payments and/or Wellness Incentive payments received by class members
10 were non-discretionary bonuses were improperly calculated from the regular rate calculation. In addition,
11 there are PAGA claims have significant individual issues to manage and yet no Trial Plan exists, and so it
12 is unclear who the allegedly aggrieved employees are and how their claims can be evaluated on a
13 representative basis. Also, due process warrants that Defendant have a right to be fully and properly
14 informed regarding the number of employees of the certified class and a reasonable period of time to
15 present its defenses; the same reasoning applies to the PAGA plaintiffs - all 2,551 of them. This is
16 Plaintiffs' burden to demonstrate how these claims will be tried.
17 H. THE COURT ALREADY ORDERED PLAINTIFFS TO PROPOSE A TRIAL
18 PLAN
19 At the August 30, 2019 motion hearing, Defendant explained that Plaintiffs should be required to
20 submit a Trial Plan that: (1) identifies the allegedly aggrieved employees as to each claim remaining in this
21 case; and (2) specifies "how the claims of those employees can be evaluated on a representative [basis]
22 rather than being asserted as 44,195 individual claims brought by 2,551 alleged claimants .... "(Transcript
23 from August 30, 2019 Motion Hearing ("Tr.") at 45:24 - 46:3.) The plan should also specify how trying
24 each of Plaintiffs' remaining claims on a representative basis can proceed "in a fair, just, and expeditious
25 and manageable manner." The Court agreed. (Tr. 49:12-15 ["I would like it [the Trial Plan] to include the
26 topics of who are the employees, how those claims can be asserted as a representative action, and how the
27 case could be moved in an expeditious manner."] id. at 49:9-12 ["I would like to have the parties address
28 when Plaintiff should submit... a trial plan regarding the PAGA claims. . ."); id. at 51:1-4 ["I think the
6 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL
PLAN
1 trial plan is going to be necessary, but... I think we need to define what it should include and both sides
2 need time to think about that.. . ."].). The Court's Minute Order confirms that the only outstanding issue
3 related to the Trial Plan is what specifically it should contain. (August 30, 2019 Minute Order ["Defendant
4 to suggest contents of trial [p]lan and when questions 1 through 6 should be answered if not part of the trial
5 plan by September 11, 2019."]; see also id. ["Proposed orders and trial plans should be filed directly in
6 Department 35."].) Despite the Court's directive, Plaintiffs instead argue that the Court does not have the
7 power to order a trial plan, no trial plan is necessary, and to the extent the Court has concems about a trial,
8 the Court should take comfort that the remaining claims can be tried efficiently because they "will rely on
9 the testimony from Defendant's PMK witness, Defendant's own written policies, and a report by Plaintiffs
10 expert analyzing the frequency [of] meal period violations which did not result in the payment of a meal
11 period premium." (Plfs.' Submission, at p. 4:5-8). Of course, the Court does have the power to order a
12 trial plan (and already has). A trial plan is critical in the case. And the Court should take no comfort in
13 what little Plaintiffs have offered, because what Plaintiffs have offered is meaningless, and does not address
14 all the remaining claims.
15 III. THE COURT'S DIRECTIVE THAT PLAINTIFFS SUBMIT A TRIAL PLAN
16 WAS AND IS PROPER
17 a. The Court Has Inherent Authority to Require a Trial Plan.
18 Class action and PAGA actions require "exceptional judicial management to avoid placing
19 unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and
20 promote effective decision making by the court, the parties, and counsel." Cal. Rule Ct. 3.400(a). See also
21 Cal. Code of Civ. Proc. § 2019.020 (courts have the power to sequence discovery). To manage these
22 complex actions, the Court has "inherent equity, supervisory and administrative powers and well as
23 inherent power to control [its] litigation." Cottle v. Superior Court (1992) 3 Cal. App. 4th 1367,1377; see
24 also Williams v. Superior Court, 3 Cal. 5th 531, 559 (2017) (plaintiff bringing a PAGA action "might seek
25 to render trial ofthe action unmanageable.") The authority to require a trial plan to navigate complex class
26 and PAGA actions is one type of inherent power.
27 Manageability of issues in PAGA representative actions, is paramount to a court's obligations under
28 Califomia Rule of Court 3.400(a) to avoid placing unnecessary burdens on the court or the litigants and to
^ 7 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL
PLAN
1 expedite the case, keep costs reasonable, and promote effective decision making. In fact, this Court has
2 already held that manageability of a PAGA case "is not only part of the Court's inherent power and
3 authority to manage its docket and calendar, but also mirrors the method utilized by state courts with respect
4 to representative Unfair Competition Law claims prior to the passage of Proposition 64." Turner v. Ampac
5 Fine Chems, LLC Case No. 34-2015-00176993 (Cal. Sup. Ct. June 1, 2018); Order Granting in Part and
6 Denying in Part PAGA Motion, at p. 5.
7 In that case. Judge Brovm held that it was both appropriate and necessary to require a trial plan. In
8 Turner, the plaintiffs alleged that the defendant violated various labor laws in the misclassification of its
9 employees. After the plaintiffs' motion for class certification was denied, the defendant moved to halt the
10 remaining PAGA claimfi-omproceeding due to the unmanageability of the individual issues involved in
11 first establishing whether each plaintiff is an exempt or non-exempt employee, then determining any
12 liability for any Labor Code violations, and lastly the resulting penalties. Turner, supra, Case No. 34-2015-
13 0017699, Order Granting in Part and Denying in Part PAGA Motion, at p. 5. The Court granted the
14 defendant's motion in part and required the plaintiffs to submit a trial plan, despite agreeing with the
15 plaintiffs that PAGA claims are not subject to the same standards that are applicable to class actions. Id.
16 "While the PAGA statute does not expressly contain a provision or criteria of manageability, PAGA does
17 require that each Plaintiff must establish that Defendant violated the Labor Code." Id.
18 The Court was concemed that a trial would devolve into a series of dozens of mini-trials to
19 determine violations of the Labor Code and the resulting penalty, which could "make the PAGA claim here
20 unmanageable because a multiple of individualized assessments would be necessary." Id. at p. 7. As argued
21 by the defendant, the plaintiffs' theories of recovery relied on the "unique characteristics of the experience"
22 of each employee rather than on policies or practices common to the "aggrieved employees" where the
23 evidence showed the plaintiff group had varying jobs and varying duties among the multiple groups of
24 employees. Id. Because there was no "standard" means to determine liability as to whether one of the
25 named plaintiffs is representative of all the aggrieved employees, the court concluded that a trial of the
26 plaintiffs' PAGA claim would be unmanageable where individual inquiries and assessments regarding
27 liability would predominate common questions of fact and law. Accordingly, the Court used its powers as
28 outlined in Cottle v. Superior Court which allow a trial court overseeing complex civil litigation to require
8 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRL\L
PLAN
1 a party to present a prima facie claim establishing some element of their cause of action prior to trial in a
2 non-statutory procedure, to order the plaintiffs to present a trial plan that "proposed means by which the
3 PAGA claims, and Plaintiffs as PAGA representatives, could be efficiently managed going forward." Id.
4 at 7-8.
5 The allegations and issues presented in this case have much in common with those in Turner, and
6 the Court should similarly require Plaintiffs, as it already has, to submit a Trial Plan to demonstrate how
7 their PAGA claims will not involve significant manageability problems for the court and litigants. As in
8 Turner, the Labor Code violations Plaintiffs allege will require highly individualized determinations
9 involving complex factual issues. Plaintiffs' meal period and rest break claims rely on the "unique
10 characteristics of the experience" of each employee instead of HNCA's policies common to the aggrieved
11 employees. (Pltfs.' Mot. For Class Cert. 7:3-5,18-20). Consequently, Plaintiffs have the burden to present
12 evidence of each violation by Defendant of each of the approximately 2,551 allegedly aggrieved
13 employees. (Def.'s Mtn. re PAGA Rep. Action, at p. 12). These factually complex issues will require
14 months of highly individualized mini-trials that pose serious management problems for the Court. The
15 court in Turner concluded "'[s]uch circumstance is indeed unmanageable.'" Turner, supra. Case No. 34-
16 2015-0017699, at p. 7. Because the Court has the authority to exercise its judicial management power to
17 manage its docket, it should require Plaintiffs to submit a Trial Plan to demonstrate how their PAGA claims
18 will be manageable.
19 b. A Trial Plan Is Necessary Here to Determine the Manageability of Plaintiffs' Claims.
20 A trial plan is needed because Plaintiffs should be required to demonstrate how their PAGA claims
21 will be manageable at trial. As Defendant previously argued in its Motion as to Why Arana's Case Should
22 Not Proceed as a PAGA Representative Action, Plaintiffs have the burden to demonstrate that claims
23 brought in a representative capacity do not pose manageability problems for the Court. (Def.'s Mtn. re
24 PAGA Rep. Action, at p. 12.) For every asserted violation for each employee. Plaintiffs have the burden
25 to prove by a preponderance of the evidence that the violation occurred - a point on which Plaintiffs agree.
26 Id\
27
28 ' If the proof necessary for a plaintiff to prevail on his representative claims is highly individualized, involves
complex factual issues, and those claims will involve significant management problems for the court, the Court may
strike those claims. Id.
9 CASE NO. 34-2017-00210560-CU-OE-GDS
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PLAN
1 A trial plan is necessary to allow the Court to determine whether Plaintiffs can meet their burden
2 for the alleged PAGA meal and rest period violations for approximately 2,551 allegedly aggrieved
3 employees. (Def.'s Mtn. re PAGA Rep. Action, at p. 12.) Plaintiffs'trial plan should show how they intend
4 to present the evidence necessary to prove each and every one of the thousands of alleged violations
5 involving each of the approximately 2,551 allegedly aggrieved employees in different job classifications,
6 widely, and factually complex issues - without requiring months of highly individualized mini-trials. Id.
7 i. Plaintiffs' Claim for Failure to Provide Meal and Rest Period Premiums
8 Require Individualized Assessment to Determine Liability
9 Because adjudication of Plaintiffs' PAGA claims and certified claims will devolve into
10 individualized analyses of liability, a trial plan is necessary. As Defendant has argued, and not disputed by
11 Plaintiffs, this case does not involve a lack of a uniformly applied unlawful written policy providing
12 classwide proof of liability for meal and rest period violations. (Def.'s Opp. to Mtn. for Class Cert, at p.
13 8.) Plaintiffs Spears and Arana respectively confirmed that HNCA's meal period and rest break policies
14 complied with Califomia law. Id. As such, Plaintiffs' PAGA claims fall squarely into the category of cases
15 in which there is no uniform unlawfiil policy that would establish that the alleged Labor Code violations
16 occurred, and so Plaintiffs must prove, for each alleged violation for each plaintiff, that HNCA failed to
17 provide a meal and rest period premium. Id. at 9.
18 The Carrington case cited by Plaintiffs is apposite because in contrast to the employer in that case,
19 HNCA's policies do not violate the law. The court in Carrington concluded that the named plaintiffs
20 experience was representative of aggrieved employees for purposes under PAGA, but this was based on
21 evidence that the employer's "written policies and procedures resulted in numerous employees with initial
22 or total shifts slightly in excess of five hours not being provided with timely meal breaks and not being
23 paid meal period premiums, in violation of the law." Carrington v. Starbucks Corp., 30 Cal.App.5th 504,
24 525 (Cal. Ct. App. 2018). The plaintiffs were able to demonstrate that their employer's generally applicable
25 policies resulted in noncompliance with meal period requirements - i.e., the employer's policies were
26 unlawful. Id. at 527. Those facts are distinguishable from this case because, as stated above. Plaintiffs
27 have not previously sought to establish liability of meal period violations based upon an alleged unlawfiil
28 written policy.
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ii. Plaintiffs' Claim for OfT-the-Clock Violations Also Require individualized
2 Assessment to Determine Liability
3 As with their meal and rest period claims, a trial plan is needed because Plaintiffs' off-the-clock
4 work allegations will require highly individualized analyses. To prevail on Plaintiffs' off-the-clock claim,
5 they must not only prove that each of the approximately 2,551 allegedly aggrieved employees worked off
6 the clock, but that Defendant had actual or constmctive knowledge of each allegedly aggrieved employee's
7 off-the-clock work, each time it occurred. (Def's Mtn. re PAGA Rep. Action, at p. 13). For every asserted
8 violation or each employee. Plaintiffs have the burden to prove by a preponderance of the evidence that
9 the violation occurred. See Williams, supra, 3 Cal. 5th at 547-48. Also, none of the off-the-clock violations
10 resulted from noncompliant company policies but were instead the result of individual circumstances that
II must be examined on a case-by-case basis. (Def's Mtn. re PAGA Rep. Action, at p. 13).
12 A trial plan is necessary because the evidence demonstrates that there are potentially significant
13 factual differences that would impact whether employees ever worked off the clock, under what
14 circumstances such work occurred, and whether HNCA had reason to know that work occurred. For
15 example, an employee who works as a Concurrent Review Lead in the Concurrent Review Unit of the
16 Medical Management Department opens and closes her computer program and records her work time in a
17 matter of seconds. (Def's Mtn. re PAGA Rep. Action, at p. 15). A different HNCA employee who works
18 as a Project Coordinator in the Case Management Department takes a few minutes to log out of the
19 computer system. Id. Both employees experienced delays of varying degrees yet neither worked off-the-
20 clock and properly entered their time according to HNCA policy. The resolution of these issues as to one
21 individual employee cannot represent or be extrapolated to the experience of any other employee since
22 during the relevant time period, HNCA employees worked in approximately 352 different job titles and at
23 26 different locations and under approximately 526 different managers. Plaintiffs would have to conduct
24 highly individualized adjudications for each of the thousands of employees to determine whether and when
25 that particular employee worked off the clock and whether HNCA had reason to know that work occurred.
26 Since Plaintiffs cannot reasonably dispute that this would pose serious management problems for the Court,
27 a trial plan necessary.
28
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1 IV. PLAINTIFFS' SUBMISSION FAILS TO EXPLAIN HOW THE REMAINING
2 CLAIMS CAN BE EFFICIENTLY ADJUDICATED
3 a. A Trial Plan is Necessary for the Certified Claims
4 Plaintiffs allege that because the Court certified the question as to whether employees can manually
5 enter their time and the cash benefit and bonus claims, no trial plan is necessary, but this ignores the factual
6 issues of the claims that will determine manageability at trial. Notwithstanding certification of these
7 claims, Plaintiffs have not proffered realistic time estimates for trial or identified the evidence such as
8 witnesses and the number of witnesses to prove the elements of their claims - including proving that HNCA
9 had actual or constmctive knowledge that off-the-clock work was occurring - and other components of a
10 Trial Plan that would show manageability of the certified claims. In taking the position that no Trial Plan
11 is required for the certified claims. Plaintiffs in effect seek to deprive Defendant of due process of law.
12 The Court should exercise its inherent authority pursuant to Cottle v. Superior Court to require that
13 Plaintiffs to submit a clear trial plan that demonstrates how Plaintiffs intend to practically and efficiently
14 address the individual issues in both the certified and PAGA claims.
15 b. Plaintiffs Failed to Answer Questions 1-6 Posed by the Court
16 In addition to failing to respond to Defendant's proposals on the contents of a trial plan. Plaintiffs
17 inadequately addressed the Court's questions posed in its Minute Order. Plaintiffs prefer to delay resolving
18 Questions 1-6 until the eve of trial, through motions in limine. The Court's questions should not be
19 delayed to the motion in limine stage because they address issues regarding trial manageability that should
20 be contained in a trial plan. There is also no reason why Plaintiffs should not be required (or able) to state,
21 after over two years of litigation, whether Plaintiffs seek a jury trial and whether bifurcation or
22 segmentation is appropriate. It is impractical and inefficient for the parties and the Court to delay these
23 issues that will have a significant impact on the trial of this matter before a different judge in the coming
24 calendar year.
25 V. CONCLUSION
26 Plaintiffs have been directed to propose the contents of a Trial Plan but failed to do so. Instead,
27 they suggest that no Trial Plan is necessary. But one is Plaintiffs' submission underscores why the Court
28 should have granted HNCA's motion attacking their PAGA claims. Accordingly, HNCA respectfully
12 CASENO. 34-2017-00210560-CU-OE-GDS
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requests the Court grant these motions now, which the Court can do. See, e.g., Tumer (described above).
2 In the altemative, the Court should (i) adopt the briefing schedule for a motion previously proposed to
3 Plaintiffs in Defendant's Statement Conceming Any Trial Plan Proposed by Plaintiffs, which will include
4 considering renewed motions by HNCA as to why Plaintiffs' PAGA claims should be stricken or not go
5 forward; (ii) sequence discovery in this case, subject to the Court's grant of an anticipated motion by
6 Defendant to establish the sequence and timing of discovery under Code of Civil Procedure section
7 2019.020; and (iii) to order briefing by the parties on the merits of a jury trial versus a bench trial in this
8 case.
9
10 DATED: September 26, 2019 GREENBERG TRAURIG, LLP
11
12 By
Timothy J. Long
13
Attomeys for Defendants HEALTH NET OF
14 CALIFORNIA, INC.
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1 Andrea Spears, et al. vs. Health Net of Califomia, Inc.
Sacramento County Superior Court Case No. 34-2017-00210560
2
DECLARATION OF S E R V I C E
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. 1 am employed in the County of Sacramento, State of Califomia and my
business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814.
5
On this day, I caused to be served the following document(s):
6
DEFENDANT H E A L T H NET O F CALIFORNIA, INC.'S RESPONSE TO PLAINTIFFS'
7 CASE MANAGEMENT CONFERENCE STATEMENT R E PAGA T R I A L PLAN
8 By placing Q the original ^ a tme copy into sealed envelopes addressed and served as
follows:
9
Norman Blumenthal
10 BLUMENTHAL, NORDREIL\UG & Attorneys for Plaintiff Andrea Spears
BHOWMK LLP
11 2255 Calle Clara
La Jolla, CA 92037
12 Email: norm@bamlawca.com
Telephone: (858)551-1223
13 Facsimile: (858) 551-1232
14 Shaun Setareh
William Pao Attorneys for Plaintiff Tomas R. Arana
15 Alex Mcintosh
SETAREH LAW GROUP
16 315 S. Beverly Drive
Beverly Hills, CA 90212
17 Email: shaun(2),setarehlaw.com
wi 1 liam (2),setarehlaw. com
18 alex(a),setarehlaw.com
Telephone: (310)888-7771
19 Facsimile: (310)888-0109
20 ^ BY M A I L : I am familiar with this firm's practice whereby the mail, after being placed
in a designated area, is given fully prepaid postage and is then deposited with the U.S. Postal
21 Service at Sacramento, Califomia, after the close of the day's business.
22 ^ BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy
thereof attached to the electronic email address(es) as set forth above.
23
I declare under penalty of perjury under the laws of the State ofCalifomia that the
24 foregoing is tme and correct.
25 Executed on September 26, 2019, at Sacramento, Califomia.
26
Marlene Cells
27
28
14 CASE NO. 34-2017-00210560-CU-OE-GDS
PROOF OF SERVICE
Preview
1 Timothy J. Long (SBN CA 137591) 2 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 3 Sacramento, Califomia 95814 Telephone: 916.442.1111 4 Facsimile: 916.448.1709 SEP 2 6 2019 longt@gtlaw.com 5 Jonathan S. Sack (SBN CA 271286) 6 GREENBERG TRAURIG, LLP Four Embarcadero Center, Suite 3000 7 San Francisco, Califomia 94111 Telephone: 415.655.1300 8 Facsimile: 415.707.2010 sackj(2),gtlaw.com 9 Attomeys for Defendant 10 HEALTH NET OF CALIFORNIA, INC. 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SACRAMENTO 14 15 ANDREA SPEARS, an individual, on behalf of CASE NO. 34-2017-00210560-CU-OE-GDS herself and on behalf of all persons similarly 16 situated. DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSE TO 17 Plaintiff, PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA 18 TRIAL PLAN 19 HEALTH NET OF CALIFORNIA, INC., a DATE: September 27, 2019 Califomia corporation; and DOES 1 through 50, TIME: 3:00 p.m. 20 inclusive, JUDGE: Hon. Alan G. Perkins DEPT: 35 21 Defendants. Complaint Filed: April 5, 2017 22 FAC Filed: June 29, 2017 23 TOMAS R. ARANA, on behalf of himself, ail others similarly situated. Complaint Filed: August 1, 2017 24 Consolidated Complaint Filed: Dec. 21, 2017 Plaintiff, 25 BY FAX 26 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1-50, 27 inclusive. Defendant. 28 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 TABLE OF CONTENTS 2 I. PLAINTIFFS' CASE MANAGEMENT SUBMISSION IS INADEQUATE 4 3 a. Plaintiffs Misstate the Issues in this Case 4 4 b. The CMC Submission Shows Plaintiffs' Theories of Recovery Have Shifted for the 5 PAGA Claim In an Apparent Effort Avoid Having to Submit a Trial Plan 5 6 c. The Complex Factual Issues of Plaintiffs' Claims Require a Trial Plan to Determine Manageability at Trial 6 7 II. THE COURT ALREADY ORDERED PLAINTIFFS TO PROPOSE A TRIAL PLAN 6 8 III. THE COURT'S DIRECTIVE THAT PLAINTIFFS SUBMIT A TRIAL PLAN WAS AND IS 9 PROPER 7 10 a. The Court Has Inherent Authority to Require a Trial Plan 7 11 b. A Trial Plan Is Necessary Here to Determine the Manageability of Plaintiffs' Claims 9 12 i. Plaintiffs' Claim for Failure to Provide Meal and Rest Period Premiums Require Individualized Assessment to Determine Liability 10 13 ii. Plaintiffs' Claim for Off-the-Clock Violations Also Require individualized 14 Assessment to Determine Liability 11 15 IV. PLAINTIFFS' SUBMISSION FAILS TO EXPLAIN HOW THE REMAINING CLAIMS CAN BE EFFICIENTLY ADJUDICATED 12 16 V. CONCLUSION 12 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 T A B L E OF AUTHORITIES ^ Page(s) ^ State Cases 4 Carrington v. Starbucks Corp. 5 30 Cal.App.5th 504 (Cal. Ct. App. 2018) 10 6 Cottle V. Superior Court (1992) 3 Cal. App. 4th 1367,1377 7 7 Turner v. Ampac Fine Chems, LLC 8 CaseNo. 34-2015-00176993 (Cal. Sup. Ct. June 1, 2018) :....8, 9, 10 9 Williams v. Superior Court, 10 3 Cal. 5th 531 (2017) 5, 7, 11 11 State Statutes 12 Cal. Code Civ. Proc. § 2019.020 4, 7, 13 13 Other Authorities 14 Cal. Rule Ct., Rule 3.400(a) 7 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASENO. 34-2017-00210560-CU-OE-dDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TTUAL PLA> 1 In advance ofthe Case Management Conference scheduled for September 27, 2019, Defendant 2 HEALTH NET OF CALIFORNIA, INC. ("Defendant" or "HNCA") respectfully submits its response to 3 Plaintiffs ANDREA SPEARS' and TOMAS R. ARANA's (collectively, "Plaintiffs") September 20, 2019 4 Case Management Statement Re PAGA Trial Plan wherein Plaintiffs essentially argue that they should not 5 be required to submit a PAGA Trial Plan ("Trial Plan"). Plaintiffs appear to have forgotten that the Court 6 already directed Plaintiffs to submit a Trial Plan. Their submission was supposed to address the contents 7 of the Trial Plan. It doesn't. Plaintiffs' submission does not explain how any surviving claims can be tried 8 efficiently, without the trial devolving into a myriad of individualized disputes. This is Plaintiffs' burden 9 and they have not met their burden. A Trial Plan is necessary in this case to ensure that those claims can 10 be adjudicated efficiently without mnning roughshod over Defendant's due process rights. Because the 11 Court already ordered a Trial Plan, HNCA respectfully requests the Court (i) to adopt the briefing schedule 12 previously proposed to Plaintiffs in Defendant's Statement Conceming Any Trial Plan Proposed by 13 Plaintiffs; (ii) to sequence discovery in this case, subject to the Court's grant of an anticipated motion by 14 Defendant to establish the sequence and timing of discovery under Code of Civil Procedure section 15 2019.020; and (iii) to order briefing by the parties on the merits of a jury trial versus a bench trial in this 16 case. 17 I. PLAINTIFFS' CASE MANAGEMENT SUBMISSION IS INADEQUATE 18 a. Plaintiffs Misstate the Issues in this Case 19 In addition to ignoring the Court's directive to respond to Defendant's statement on the contents of 20 a Trial Plan, Plaintiffs make several misstatements of the issues before the Court. Most glaring is that 21 Plaintiffs fail to understand the Court's Minute Order that a Trial Plan in this case was necessary, and that 22 Plaintiffs must respond to Defendant's comments regarding questions 1 through 6 in the Court's Tentative 23 Ruling. 8/30/19 Min. Order. Plaintiffs' submission included none of the information sought by the Court. 24 Next, Plaintiffs make an incorrect inference that because the Court has certified one question 25 relating to clocking in, the Court does not expect the parties to submit a Trial Plan. Plaintiffs also assert 26 that the PAGA claims will be tried on the same facts and law as the certified claims and further contend 27 that a Trial Plan would not encompass the overlapping PAGA violations but only the claims that are not 28 derivative of certified claims. Neither of these statements are accurate. 4 CASENO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 b. The CMC Submission Shows Plaintiffs' Theories of Recovery Have Shifted for 2 the PAGA Claim In an Apparent Effort Avoid Having to Submit a Trial Plan. 3 In their Case Management Conference submission. Plaintiffs appear to have abandoned their theory 4 of recovery that HNCA's work demands interfered with their ability to take meal periods. (Ptlfs.' Mtn. for 5 Class Cert., at p. 3.) Instead, Plaintiffs now advance the theory they had previously utilized for their rest 6 break claim - HNCA's policies failed to advise employees how to use the pay code DTO for meal period 7 premiums. (Pltfs.' Mtn. for Class Cert., at p. 4; Pltfs.' Submission, at p. 3:28-4:4). Surely, if Plaintiffs' 8 allegation that HNCA's failure to advise employees how to use this pay code applied to the missed meal 9 period claims was accurate. Plaintiffs would have advanced this theory earlier in this litigation, which has 10 been pending for over two years. This leads to the conclusion that Plaintiffs' theory has shifted due to the 11 manageability issues the Court had foreseen when it directed Plaintiffs to submit their proposal for a Trial 12 Plan. Given that Plaintiffs' new theory of recovery lacks an evidentiary basis, the parties and the Court are 13 left with the same manageability problems resulting from Plaintiffs' original theory. Williams v. Superior 14 CoMr/, 3 Cal. 5*531,559(2017). 15 Plaintiffs also changed their theory of recovery in the recent submission for their off-the-clock 16 claim. In their motion for class certification. Plaintiffs did not point to a uniform policy or lack of policy 17 as a basis for establishing that common issues predominate; they vaguely asserted that HNCA's alleged 18 "computer and software start time procedures give rise to predominate questions of facts and law" and that 19 there is a common question of law as to whether employees should be compensated for off-the-clock time. 20 (Pltfs.' Mtn. for Class Cert., at p. 8; Def.'s Opp. to Pltfs.' Mtn. for Class Cert., at p. 10. The altemative 21 theory Plaintiffs now advanced is that "Defendant's policies and practices failed to capture all hours worked 22 by Aggrieved Employees utilizing the EMPCenter timekeeping system during the time period of January 23 1,2017 to present violated Califomia law." Apart from this statement really being a non-sequitur. Plaintiffs 24 seem to be trying to shift the Court's focus in an effort to avoid the Court's likely conclusion that the issues 25 as formerly framed (and which actually now control) would render them unmanageable at trial, since they 26 would require individualized inquiries or evidence where legally compliant policies cannot provide the 27 basis for class certification. (Def's Opp. to Pltfs.' Mtn. for Class Cert., at pp. 8-9.) Plaintiffs cannot avoid 28 their obligation to submit a trial plan by trying to change course (after the fact), even where a trial plan is 5 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRL\L PLAN 1 not required for PAGA claims, by changing course in a manner that is inconsistent with the allegations in 2 the complaint, or s they agreed on class certification. 3 c. The Complex Factual Issues of Plaintiffs' Claims Require a Trial Plan to 4 Determine Manageability at Trial 5 The surviving claims at issue before the Court will require highly individualized determinations for 6 each plaintiff, and Plaintiffs should be required to show how these claims will tried efficiently without the 7 trial devolving into individualized disputes. The Court certified claims alleging that "MedFlxWave" 8 payments and "DenFlxWave" payments were improperly calculated from the regular rate calculation, and 9 SPOT awards, ACA Incentive payments and/or Wellness Incentive payments received by class members 10 were non-discretionary bonuses were improperly calculated from the regular rate calculation. In addition, 11 there are PAGA claims have significant individual issues to manage and yet no Trial Plan exists, and so it 12 is unclear who the allegedly aggrieved employees are and how their claims can be evaluated on a 13 representative basis. Also, due process warrants that Defendant have a right to be fully and properly 14 informed regarding the number of employees of the certified class and a reasonable period of time to 15 present its defenses; the same reasoning applies to the PAGA plaintiffs - all 2,551 of them. This is 16 Plaintiffs' burden to demonstrate how these claims will be tried. 17 H. THE COURT ALREADY ORDERED PLAINTIFFS TO PROPOSE A TRIAL 18 PLAN 19 At the August 30, 2019 motion hearing, Defendant explained that Plaintiffs should be required to 20 submit a Trial Plan that: (1) identifies the allegedly aggrieved employees as to each claim remaining in this 21 case; and (2) specifies "how the claims of those employees can be evaluated on a representative [basis] 22 rather than being asserted as 44,195 individual claims brought by 2,551 alleged claimants .... "(Transcript 23 from August 30, 2019 Motion Hearing ("Tr.") at 45:24 - 46:3.) The plan should also specify how trying 24 each of Plaintiffs' remaining claims on a representative basis can proceed "in a fair, just, and expeditious 25 and manageable manner." The Court agreed. (Tr. 49:12-15 ["I would like it [the Trial Plan] to include the 26 topics of who are the employees, how those claims can be asserted as a representative action, and how the 27 case could be moved in an expeditious manner."] id. at 49:9-12 ["I would like to have the parties address 28 when Plaintiff should submit... a trial plan regarding the PAGA claims. . ."); id. at 51:1-4 ["I think the 6 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 trial plan is going to be necessary, but... I think we need to define what it should include and both sides 2 need time to think about that.. . ."].). The Court's Minute Order confirms that the only outstanding issue 3 related to the Trial Plan is what specifically it should contain. (August 30, 2019 Minute Order ["Defendant 4 to suggest contents of trial [p]lan and when questions 1 through 6 should be answered if not part of the trial 5 plan by September 11, 2019."]; see also id. ["Proposed orders and trial plans should be filed directly in 6 Department 35."].) Despite the Court's directive, Plaintiffs instead argue that the Court does not have the 7 power to order a trial plan, no trial plan is necessary, and to the extent the Court has concems about a trial, 8 the Court should take comfort that the remaining claims can be tried efficiently because they "will rely on 9 the testimony from Defendant's PMK witness, Defendant's own written policies, and a report by Plaintiffs 10 expert analyzing the frequency [of] meal period violations which did not result in the payment of a meal 11 period premium." (Plfs.' Submission, at p. 4:5-8). Of course, the Court does have the power to order a 12 trial plan (and already has). A trial plan is critical in the case. And the Court should take no comfort in 13 what little Plaintiffs have offered, because what Plaintiffs have offered is meaningless, and does not address 14 all the remaining claims. 15 III. THE COURT'S DIRECTIVE THAT PLAINTIFFS SUBMIT A TRIAL PLAN 16 WAS AND IS PROPER 17 a. The Court Has Inherent Authority to Require a Trial Plan. 18 Class action and PAGA actions require "exceptional judicial management to avoid placing 19 unnecessary burdens on the court or the litigants and to expedite the case, keep costs reasonable, and 20 promote effective decision making by the court, the parties, and counsel." Cal. Rule Ct. 3.400(a). See also 21 Cal. Code of Civ. Proc. § 2019.020 (courts have the power to sequence discovery). To manage these 22 complex actions, the Court has "inherent equity, supervisory and administrative powers and well as 23 inherent power to control [its] litigation." Cottle v. Superior Court (1992) 3 Cal. App. 4th 1367,1377; see 24 also Williams v. Superior Court, 3 Cal. 5th 531, 559 (2017) (plaintiff bringing a PAGA action "might seek 25 to render trial ofthe action unmanageable.") The authority to require a trial plan to navigate complex class 26 and PAGA actions is one type of inherent power. 27 Manageability of issues in PAGA representative actions, is paramount to a court's obligations under 28 Califomia Rule of Court 3.400(a) to avoid placing unnecessary burdens on the court or the litigants and to ^ 7 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 expedite the case, keep costs reasonable, and promote effective decision making. In fact, this Court has 2 already held that manageability of a PAGA case "is not only part of the Court's inherent power and 3 authority to manage its docket and calendar, but also mirrors the method utilized by state courts with respect 4 to representative Unfair Competition Law claims prior to the passage of Proposition 64." Turner v. Ampac 5 Fine Chems, LLC Case No. 34-2015-00176993 (Cal. Sup. Ct. June 1, 2018); Order Granting in Part and 6 Denying in Part PAGA Motion, at p. 5. 7 In that case. Judge Brovm held that it was both appropriate and necessary to require a trial plan. In 8 Turner, the plaintiffs alleged that the defendant violated various labor laws in the misclassification of its 9 employees. After the plaintiffs' motion for class certification was denied, the defendant moved to halt the 10 remaining PAGA claimfi-omproceeding due to the unmanageability of the individual issues involved in 11 first establishing whether each plaintiff is an exempt or non-exempt employee, then determining any 12 liability for any Labor Code violations, and lastly the resulting penalties. Turner, supra, Case No. 34-2015- 13 0017699, Order Granting in Part and Denying in Part PAGA Motion, at p. 5. The Court granted the 14 defendant's motion in part and required the plaintiffs to submit a trial plan, despite agreeing with the 15 plaintiffs that PAGA claims are not subject to the same standards that are applicable to class actions. Id. 16 "While the PAGA statute does not expressly contain a provision or criteria of manageability, PAGA does 17 require that each Plaintiff must establish that Defendant violated the Labor Code." Id. 18 The Court was concemed that a trial would devolve into a series of dozens of mini-trials to 19 determine violations of the Labor Code and the resulting penalty, which could "make the PAGA claim here 20 unmanageable because a multiple of individualized assessments would be necessary." Id. at p. 7. As argued 21 by the defendant, the plaintiffs' theories of recovery relied on the "unique characteristics of the experience" 22 of each employee rather than on policies or practices common to the "aggrieved employees" where the 23 evidence showed the plaintiff group had varying jobs and varying duties among the multiple groups of 24 employees. Id. Because there was no "standard" means to determine liability as to whether one of the 25 named plaintiffs is representative of all the aggrieved employees, the court concluded that a trial of the 26 plaintiffs' PAGA claim would be unmanageable where individual inquiries and assessments regarding 27 liability would predominate common questions of fact and law. Accordingly, the Court used its powers as 28 outlined in Cottle v. Superior Court which allow a trial court overseeing complex civil litigation to require 8 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRL\L PLAN 1 a party to present a prima facie claim establishing some element of their cause of action prior to trial in a 2 non-statutory procedure, to order the plaintiffs to present a trial plan that "proposed means by which the 3 PAGA claims, and Plaintiffs as PAGA representatives, could be efficiently managed going forward." Id. 4 at 7-8. 5 The allegations and issues presented in this case have much in common with those in Turner, and 6 the Court should similarly require Plaintiffs, as it already has, to submit a Trial Plan to demonstrate how 7 their PAGA claims will not involve significant manageability problems for the court and litigants. As in 8 Turner, the Labor Code violations Plaintiffs allege will require highly individualized determinations 9 involving complex factual issues. Plaintiffs' meal period and rest break claims rely on the "unique 10 characteristics of the experience" of each employee instead of HNCA's policies common to the aggrieved 11 employees. (Pltfs.' Mot. For Class Cert. 7:3-5,18-20). Consequently, Plaintiffs have the burden to present 12 evidence of each violation by Defendant of each of the approximately 2,551 allegedly aggrieved 13 employees. (Def.'s Mtn. re PAGA Rep. Action, at p. 12). These factually complex issues will require 14 months of highly individualized mini-trials that pose serious management problems for the Court. The 15 court in Turner concluded "'[s]uch circumstance is indeed unmanageable.'" Turner, supra. Case No. 34- 16 2015-0017699, at p. 7. Because the Court has the authority to exercise its judicial management power to 17 manage its docket, it should require Plaintiffs to submit a Trial Plan to demonstrate how their PAGA claims 18 will be manageable. 19 b. A Trial Plan Is Necessary Here to Determine the Manageability of Plaintiffs' Claims. 20 A trial plan is needed because Plaintiffs should be required to demonstrate how their PAGA claims 21 will be manageable at trial. As Defendant previously argued in its Motion as to Why Arana's Case Should 22 Not Proceed as a PAGA Representative Action, Plaintiffs have the burden to demonstrate that claims 23 brought in a representative capacity do not pose manageability problems for the Court. (Def.'s Mtn. re 24 PAGA Rep. Action, at p. 12.) For every asserted violation for each employee. Plaintiffs have the burden 25 to prove by a preponderance of the evidence that the violation occurred - a point on which Plaintiffs agree. 26 Id\ 27 28 ' If the proof necessary for a plaintiff to prevail on his representative claims is highly individualized, involves complex factual issues, and those claims will involve significant management problems for the court, the Court may strike those claims. Id. 9 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 A trial plan is necessary to allow the Court to determine whether Plaintiffs can meet their burden 2 for the alleged PAGA meal and rest period violations for approximately 2,551 allegedly aggrieved 3 employees. (Def.'s Mtn. re PAGA Rep. Action, at p. 12.) Plaintiffs'trial plan should show how they intend 4 to present the evidence necessary to prove each and every one of the thousands of alleged violations 5 involving each of the approximately 2,551 allegedly aggrieved employees in different job classifications, 6 widely, and factually complex issues - without requiring months of highly individualized mini-trials. Id. 7 i. Plaintiffs' Claim for Failure to Provide Meal and Rest Period Premiums 8 Require Individualized Assessment to Determine Liability 9 Because adjudication of Plaintiffs' PAGA claims and certified claims will devolve into 10 individualized analyses of liability, a trial plan is necessary. As Defendant has argued, and not disputed by 11 Plaintiffs, this case does not involve a lack of a uniformly applied unlawful written policy providing 12 classwide proof of liability for meal and rest period violations. (Def.'s Opp. to Mtn. for Class Cert, at p. 13 8.) Plaintiffs Spears and Arana respectively confirmed that HNCA's meal period and rest break policies 14 complied with Califomia law. Id. As such, Plaintiffs' PAGA claims fall squarely into the category of cases 15 in which there is no uniform unlawfiil policy that would establish that the alleged Labor Code violations 16 occurred, and so Plaintiffs must prove, for each alleged violation for each plaintiff, that HNCA failed to 17 provide a meal and rest period premium. Id. at 9. 18 The Carrington case cited by Plaintiffs is apposite because in contrast to the employer in that case, 19 HNCA's policies do not violate the law. The court in Carrington concluded that the named plaintiffs 20 experience was representative of aggrieved employees for purposes under PAGA, but this was based on 21 evidence that the employer's "written policies and procedures resulted in numerous employees with initial 22 or total shifts slightly in excess of five hours not being provided with timely meal breaks and not being 23 paid meal period premiums, in violation of the law." Carrington v. Starbucks Corp., 30 Cal.App.5th 504, 24 525 (Cal. Ct. App. 2018). The plaintiffs were able to demonstrate that their employer's generally applicable 25 policies resulted in noncompliance with meal period requirements - i.e., the employer's policies were 26 unlawful. Id. at 527. Those facts are distinguishable from this case because, as stated above. Plaintiffs 27 have not previously sought to establish liability of meal period violations based upon an alleged unlawfiil 28 written policy. 10 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN ii. Plaintiffs' Claim for OfT-the-Clock Violations Also Require individualized 2 Assessment to Determine Liability 3 As with their meal and rest period claims, a trial plan is needed because Plaintiffs' off-the-clock 4 work allegations will require highly individualized analyses. To prevail on Plaintiffs' off-the-clock claim, 5 they must not only prove that each of the approximately 2,551 allegedly aggrieved employees worked off 6 the clock, but that Defendant had actual or constmctive knowledge of each allegedly aggrieved employee's 7 off-the-clock work, each time it occurred. (Def's Mtn. re PAGA Rep. Action, at p. 13). For every asserted 8 violation or each employee. Plaintiffs have the burden to prove by a preponderance of the evidence that 9 the violation occurred. See Williams, supra, 3 Cal. 5th at 547-48. Also, none of the off-the-clock violations 10 resulted from noncompliant company policies but were instead the result of individual circumstances that II must be examined on a case-by-case basis. (Def's Mtn. re PAGA Rep. Action, at p. 13). 12 A trial plan is necessary because the evidence demonstrates that there are potentially significant 13 factual differences that would impact whether employees ever worked off the clock, under what 14 circumstances such work occurred, and whether HNCA had reason to know that work occurred. For 15 example, an employee who works as a Concurrent Review Lead in the Concurrent Review Unit of the 16 Medical Management Department opens and closes her computer program and records her work time in a 17 matter of seconds. (Def's Mtn. re PAGA Rep. Action, at p. 15). A different HNCA employee who works 18 as a Project Coordinator in the Case Management Department takes a few minutes to log out of the 19 computer system. Id. Both employees experienced delays of varying degrees yet neither worked off-the- 20 clock and properly entered their time according to HNCA policy. The resolution of these issues as to one 21 individual employee cannot represent or be extrapolated to the experience of any other employee since 22 during the relevant time period, HNCA employees worked in approximately 352 different job titles and at 23 26 different locations and under approximately 526 different managers. Plaintiffs would have to conduct 24 highly individualized adjudications for each of the thousands of employees to determine whether and when 25 that particular employee worked off the clock and whether HNCA had reason to know that work occurred. 26 Since Plaintiffs cannot reasonably dispute that this would pose serious management problems for the Court, 27 a trial plan necessary. 28 11 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 1 IV. PLAINTIFFS' SUBMISSION FAILS TO EXPLAIN HOW THE REMAINING 2 CLAIMS CAN BE EFFICIENTLY ADJUDICATED 3 a. A Trial Plan is Necessary for the Certified Claims 4 Plaintiffs allege that because the Court certified the question as to whether employees can manually 5 enter their time and the cash benefit and bonus claims, no trial plan is necessary, but this ignores the factual 6 issues of the claims that will determine manageability at trial. Notwithstanding certification of these 7 claims, Plaintiffs have not proffered realistic time estimates for trial or identified the evidence such as 8 witnesses and the number of witnesses to prove the elements of their claims - including proving that HNCA 9 had actual or constmctive knowledge that off-the-clock work was occurring - and other components of a 10 Trial Plan that would show manageability of the certified claims. In taking the position that no Trial Plan 11 is required for the certified claims. Plaintiffs in effect seek to deprive Defendant of due process of law. 12 The Court should exercise its inherent authority pursuant to Cottle v. Superior Court to require that 13 Plaintiffs to submit a clear trial plan that demonstrates how Plaintiffs intend to practically and efficiently 14 address the individual issues in both the certified and PAGA claims. 15 b. Plaintiffs Failed to Answer Questions 1-6 Posed by the Court 16 In addition to failing to respond to Defendant's proposals on the contents of a trial plan. Plaintiffs 17 inadequately addressed the Court's questions posed in its Minute Order. Plaintiffs prefer to delay resolving 18 Questions 1-6 until the eve of trial, through motions in limine. The Court's questions should not be 19 delayed to the motion in limine stage because they address issues regarding trial manageability that should 20 be contained in a trial plan. There is also no reason why Plaintiffs should not be required (or able) to state, 21 after over two years of litigation, whether Plaintiffs seek a jury trial and whether bifurcation or 22 segmentation is appropriate. It is impractical and inefficient for the parties and the Court to delay these 23 issues that will have a significant impact on the trial of this matter before a different judge in the coming 24 calendar year. 25 V. CONCLUSION 26 Plaintiffs have been directed to propose the contents of a Trial Plan but failed to do so. Instead, 27 they suggest that no Trial Plan is necessary. But one is Plaintiffs' submission underscores why the Court 28 should have granted HNCA's motion attacking their PAGA claims. Accordingly, HNCA respectfully 12 CASENO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRL\L PLAN requests the Court grant these motions now, which the Court can do. See, e.g., Tumer (described above). 2 In the altemative, the Court should (i) adopt the briefing schedule for a motion previously proposed to 3 Plaintiffs in Defendant's Statement Conceming Any Trial Plan Proposed by Plaintiffs, which will include 4 considering renewed motions by HNCA as to why Plaintiffs' PAGA claims should be stricken or not go 5 forward; (ii) sequence discovery in this case, subject to the Court's grant of an anticipated motion by 6 Defendant to establish the sequence and timing of discovery under Code of Civil Procedure section 7 2019.020; and (iii) to order briefing by the parties on the merits of a jury trial versus a bench trial in this 8 case. 9 10 DATED: September 26, 2019 GREENBERG TRAURIG, LLP 11 12 By Timothy J. Long 13 Attomeys for Defendants HEALTH NET OF 14 CALIFORNIA, INC. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT'S RESPONSE TO PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRL\L PLAN 1 Andrea Spears, et al. vs. Health Net of Califomia, Inc. Sacramento County Superior Court Case No. 34-2017-00210560 2 DECLARATION OF S E R V I C E 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. 1 am employed in the County of Sacramento, State of Califomia and my business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814. 5 On this day, I caused to be served the following document(s): 6 DEFENDANT H E A L T H NET O F CALIFORNIA, INC.'S RESPONSE TO PLAINTIFFS' 7 CASE MANAGEMENT CONFERENCE STATEMENT R E PAGA T R I A L PLAN 8 By placing Q the original ^ a tme copy into sealed envelopes addressed and served as follows: 9 Norman Blumenthal 10 BLUMENTHAL, NORDREIL\UG & Attorneys for Plaintiff Andrea Spears BHOWMK LLP 11 2255 Calle Clara La Jolla, CA 92037 12 Email: norm@bamlawca.com Telephone: (858)551-1223 13 Facsimile: (858) 551-1232 14 Shaun Setareh William Pao Attorneys for Plaintiff Tomas R. Arana 15 Alex Mcintosh SETAREH LAW GROUP 16 315 S. Beverly Drive Beverly Hills, CA 90212 17 Email: shaun(2),setarehlaw.com wi 1 liam (2),setarehlaw. com 18 alex(a),setarehlaw.com Telephone: (310)888-7771 19 Facsimile: (310)888-0109 20 ^ BY M A I L : I am familiar with this firm's practice whereby the mail, after being placed in a designated area, is given fully prepaid postage and is then deposited with the U.S. Postal 21 Service at Sacramento, Califomia, after the close of the day's business. 22 ^ BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy thereof attached to the electronic email address(es) as set forth above. 23 I declare under penalty of perjury under the laws of the State ofCalifomia that the 24 foregoing is tme and correct. 25 Executed on September 26, 2019, at Sacramento, Califomia. 26 Marlene Cells 27 28 14 CASE NO. 34-2017-00210560-CU-OE-GDS PROOF OF SERVICE