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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 08/30/2019 TIME: 02:00:00 PM DEPT: 35
JUDICIAL OFFICER PRESIDING: Alan Perkins
CLERK: D. Lashley
REPORTER/ERM: B. Ryan, CSR # 11373
BAILIFF/COURT ATTENDANT: C. Carrillo
CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017
CASE TITLE: Spears vs. Health Net of California Inc
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion to Certify a Class Action - Complex
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
Shaun Setareh, Assignee, present telephonically.
Ruchira P Mukherjee, counsel, present for Plaintiff(s) telephonically.
Timothy J Long, counsel, present for Defendant(s).
The above-entitled matter came before this Court this day with the above named counsel present.
The Court heard oral arguments from respective counsel.
The Court affirmed the tentative ruling on the Motion for Class Certification with clarification as set forth
in the record.
The Court affirmed the tentative ruling on the PAGA motions with the following clarification: the Court
changes the ruling to make clear that it is deciding only that the court either did not have the power to, or
shouldn't, decide the PAGA motions now, not that it is deciding that it could never do so.
The Court granted the Motion to Seal.
Plaintiffs are directed to prepare proposed order for the certification motions within seven days and
submit to Defense counsel for approval as to form.
Defendant is directed to prepare proposed orders on the PAGA claims within seven days and submit to
Plaintiff for approval as to form.
Defendant to suggest contents of the trial Plan and when questions 1 through 6 should be answered if
not part of the trial plan by September 11, 2019.
Plaintiffs' response is due by September 20, 2019.
Counsel stipulated to service by email.
Proposed orders and trial plans should be filed directly in Department 35.
DATE: 08/30/2019 MINUTE ORDER Page 1
DEPT: 35 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
Plaintiffs' Motion for Class Certification
TENTATIVE RULING
The plaintiff Tomas Arana's motion for certification of the described class and subclasses in this wage
and hour class action is granted in part and denied in part as set forth below. The court will issue a
separate tentative ruling regarding the PAGA motions set for hearing at the same time as this motion.
Plaintiff alleges that he can establish defendant Health Net of California, Inc. (HNCA): (1) required
off-the-clock work in the form of a regimented computer and software start-up sequence; (2) imposed
onerous work obligations causing employees to work off-the-clock outside their shifts (a behavior
sometimes captured by Defendants' phone system logon/off entries); (3) imposed work demands
resulting in unlawful meal period and rest breaks due to late, missed, or interrupted breaks; and (4)
violated derivative obligations arising under California wage and hour laws.
The above-referenced consolidated actions allege claims for relief as follows: (1) Failure to Provide Meal
Periods (Lab. Code §§ 204, 223, 226.7, 512, and 1198); (2) Failure to Provide Rest Periods (Lab. Code
§§ 204,223, 226.7, and 1198); (3) Failure to Pay Hourly Wages (Lab. Code §§ 223, 510, 1194, 1194.2,
1197, 1997.1, and 1198); (4) Failure to Provide Accurate Written Wage Statements (Lab. Code §
226(a)); (5) Failure to Timely Pay All Final Wages (Lab. Code §§ 201 -203); (6) Unfair Competition (Bus.
& Prof Code §§ 17200, et seq.); and, (7) Civ. Penalties (Lab. Code §§ 2698, et seq.).
Plaintiff's motion seeks certification as Claims 1 (meal period), 2 (rest period), and 3 (hourly wages), and
derivative Claims 4 (wage statements) and 5 (final wages).
To this end, plaintiff moves for certification of the following class:
Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. in hourly or
non-exempt positions in California during the Relevant Time Period.
Plaintiff further requests certification of such sub-classes as are necessary to manage the proposed
classes, including penalty sub-classes limited in time by the applicable statutes of limitation, including
subclasses as follows or as otherwise approved by the Court: (1) Off-the-Clock Telephone Time
Sub-Class: All Class members who, based on Defendants' payroll, time clock, telephone, and other
electronic records, were utilizing telephones or other electronic systems before clocking in at the start of
their shifts or after clocking out at the end of their shift during the Relevant Time Period; (2) Computer
Boot-Up Sub-Class: All Class members who logged onto or turned on a computer to access any time
clock or timekeeping system to record their hours worked during the Relevant Time Period; (3) Meal
Period Sub-Class: All Class members who worked a shift in excess of five hours during the Relevant
Time Period; (4) Rest Period Sub-Class: All Class members who worked a shift of at least three and
one-half (3.5) hours during the Relevant Time Period; (5) Wage Statement Penalties Sub-Class: All
Class members employed by Defendants in California during the period beginning one year before the
filing of the Action and ending when final judgment is entered; and (6) Waiting Time Penalties
Sub-Class: All Class members who separated from their employment with Defendants during the period
beginning three years before the filing of the Action and ending when final judgment is entered.
The Court notes several initial matters for the record on the motion.
The declarations of Toby Alfred, James Bjorseth, Shanel Allen, Veronica Perez, and Patricia Gonzales
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DEPT: 35 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
submitted in support of Plaintiff's motion for class certification have been withdrawn through stipulation of
the parties and order entered into this matter by the Court on February 8, 2019. These declarations
have not been considered on the motion.
The Court has reviewed the declarations of Crystal Martinez, Sheena Boehl, Mynor Masaya, Charles
Pearson, and Micheal Parker. The review included both the declarations of these individuals submitted
by Plaintiff in support of the certification motion, and their subsequent declarations seeking to withdraw
their prior declarations and/or to modify or clarify their testimony submitted in opposition by HNC. The
Court has considered this testimony in total, and does not disregard these declarants' initial testimony in
support of the motion.
Defendant's objections to evidence (Toney Declaration) in support of Plaintiff's motion for certification
are ruled upon as follows: overruled.
Plaintiff moves pursuant to California Code of Civil Procedure section 382 for class certification on the
grounds that: (1) the specified class and subclasses are ascertainable and sufficiently numerous, (2)
common questions of law and fact predominate over individual issues, (2) the class representative's
claims are typical of the class, (4) the class representative will adequately represent the interests of the
class, and (5) class treatment is superior to non-class adjudication.
In Brinker Restaurant Corp. v. Superior Court, the California Supreme Court summarized the clear
requirements for the certification of a class. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.
4th 1004, 1021.) "The party advocating class treatment must demonstrate the existence of an
ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial
benefits from certification that render proceeding as a class superior to the alternatives. (Id. citing Code
Civ. Proc., § 382; Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089; Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 435; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.) "In turn, the
'community of interest requirement embodies three factors: (1) predominant common questions of law or
fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives
who can adequately represent the class.' " (Id. citing Fireside Bank, at p. 1089, quoting Richmond v. Dart
Industries, Inc. (1981) 29 Cal.3d 462, 470.)
"The 'ultimate question' the element of predominance presents is whether 'the issues which may be
jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial
that the maintenance of a class action would be advantageous to the judicial process and to the
litigants.'" (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th 1004, 1021.) "The answer
hinges on 'whether the theory of recovery advanced by the proponents of certification is, as an analytical
matter, likely to prove amenable to class treatment.'" (Id.) A court must examine the allegations of the
complaint and supporting declarations (Id.) and consider whether the legal and factual issues they
present are such that their resolution in a single class proceeding would be both desirable and feasible.
"As a general rule if the defendant's liability can be determined by facts common to all members of the
class, a class will be certified even if the members must individually prove their damages." (Hicks v.
Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.)
"'The certification question is "essentially a procedural one that does not ask whether an action is legally
or factually meritorious."'" (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th 1004, 1023
citing Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 ["'In determining the
propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of
action or will prevail on the merits, but rather whether the requirements of [class certification] are met.'
"].) "A class certification motion is not a license for a free-floating inquiry into the validity of the
complaint's allegations; rather, resolution of disputes over the merits of a case generally must be
postponed until after class certification has been decided (Fireside Bank v. Superior Court, supra, 40
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
Cal.4th at pp. 1083–1086), with the court assuming for purposes of the certification motion that any
claims have merit (Linder, at p. 443).
The rule is that a court may "consider[] how various claims and defenses relate and may affect the
course of the litigation" even though such "considerations ... may overlap the case's merits." (Fireside
Bank v. Superior Court, supra, 40 Cal.4th at p. 1092.) In particular, whether common or individual
questions predominate will often depend upon resolution of issues closely tied to the merits. (Linder v.
Thrifty Oil Co., supra, 23 Cal.4th at p. 443.) To assess predominance, a court "must examine the issues
framed by the pleadings and the law applicable to the causes of action alleged." (Hicks v. Kaufman &
Broad Home Corp., supra, 89 Cal.App.4th at p. 916.) It must determine whether the elements necessary
to establish liability are susceptible of common proof or, if not, whether there are ways to manage
effectively proof of any elements that may require individualized evidence. (See Sav-On Drug Stores,
Inc. v. Superior Court, supra, 34 Cal.4th at p. 334.)
"[A]ny 'peek' a court takes into the merits at the certification stage must 'be limited to those aspects of
the merits that affect the decisions essential' to class certification." (Brinker Restaurant Corp. v. Superior
Court, supra, 53 Cal. 4th 1004, 1024 citing Schleicher v. Wendt (7th Cir. 2010) 618 F.3d 679, 685.)
Brinker then restates the governing principles as follows. "Presented with a class certification motion, a
trial court must examine the plaintiff's theory of recovery, assess the nature of the legal and factual
disputes likely to be presented, and decide whether individual or common issues predominate. To the
extent the propriety of certification depends upon disputed threshold legal or factual questions, a court
may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention,
however, a court generally should eschew resolution of such issues unless necessary. (citation omitted.)
Consequently, a trial court does not abuse its discretion if it certifies (or denies certification of) a class
without deciding one or more issues affecting the nature of a given element if resolution of such issues
would not affect the ultimate certification decision." (Brinker Restaurant Corp. v. Superior Court, supra,
53 Cal. 4th 1004, 1024.)
The Court considers the parties' competing points and authorities, and admissible evidence, governed
by the foregoing general principles.
The Court's analysis and decision to deny certification on each of the three core claims (off-the clock
work, meal periods, and rest periods) focuses primarily upon the issue of whether Plaintiff has presented
evidence of a well-defined community of interest on each, and more particularly whether the issues
which may be jointly tried on each claim, when compared with those appearing by the evidence to
require separate individualized adjudication, are so numerous or substantial that the maintenance of a
class action would be advantageous to the judicial process and to the litigants. The Court does not find
that the other main considerations on the motion including general ascertainability [with some
questions], numerosity, class representation, lack of a present trial plan, or the general appropriateness
and preference of class litigation for common wage and hour claims necessarily augur against
certification. Instead, based upon the Plaintiff's showing, the Court does not find a well-defined
community of interest on each claim, because it cannot be found on this record that the issues which
may be jointly tried on each claim, when compared with those appearing by the evidence to require
separate individualized adjudication, are so numerous or substantial that the maintenance of a class
action would be advantageous to the judicial process and to putative class.
Meal Periods
The evidence presented establishes that as an express policy matter, HNCA provided employees with a
30-minute meal period before their fifth hour of work, and employees who missed meal periods received
appropriate penalties. (Long Decl. ¶3, Ex. B at 88:21-89:1, 89:14-18.) Plaintiff testified that he
DATE: 08/30/2019 MINUTE ORDER Page 4
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
"understood that the company's policy was that [he] [was] to be provided with 30-minute-at least 30
minute lunches during which [he] [was] not supposed to be doing any work," as well as second meal
periods for shifts that went longer than 11 hours (unless waived). (Id. ¶2, Ex. A at 55:3-11, 85:16-86:19;
Rodes Dec. ¶¶ 12-13 & Exs. B, C; Long Decl. ¶3, Ex. B at 88:21-89:4, 89:14-18, 91:8-92:19.)
Thus, as HNCA argues in opposition, Plaintiff's theory of common meal period violation is not that
HNCA's relevant policy was unlawful. Instead, Plaintiff's theory is that the meal period violations at issue
in the action were caused by HNCA's "lack of enforced policies designed to advise the Class of their
recourse when the demands of their employer interfered with the ability to take breaks...." (MPA, p.
7:3-5.) Plaintiff's theory is also premised upon break violations caused by pressures of the employees'
work. (Reply, p. 7:26-28.) Read liberally, the plaintiff's claim could be characterized as a claim that
HNCA had a policy to violate its policies. (See discussion in Jiminez v. Allstate Ins. Co. (9th Cir. 2014)
765 F.3d 1161, 1166 n.5.)
Under either theory of meal period violation, the plaintiff must show that there are predominant questions
of law or fact. There must be a factually sufficient basis to support a conclusion that an unofficial policy
exists and applies uniformly to all class members.
The court recognizes that it should not be deciding the merits of the claims at this stage. Nonetheless,
even if one takes as true all the declarations not withdrawn by stipulation, there is not sufficient evidence
to show a company-wide unofficial policy. The defendant is a large organization and there are very few
declarations. Those declarations show some manager conduct that could merit further training but do
not support a conclusion that the offending conduct was the result of an unpublished official policy to not
allow the meal breaks that were required by law and by the company published policies. Given the
paucity of evidence, and HNCA's undisputed break policy, Plaintiff's claims would depend upon
individualized investigations of each class member's personal experiences and practices in taking meal
break periods or understandings as to their available options or remedies in the event of a missed or
interrupted break period. In sum, individual issues would predominate on this claim.
Rest Breaks
The evidence on the record establishes that HNCA's rest break policy during the relevant time period
was to permit employees to take a 15-minute rest period for every four hours worked, or major fraction
thereof. (Rodes Decl. ¶¶12-13 & Exs. B, C.12 & Exs. B, C.) Plaintiff testified in deposition that the
company's policy was "to provide [him] with rest breaks every four hours or fraction thereof," and the
"company's policy...was to provide its employees with 15-minute rest breaks...." (Long Decl. ¶2, Ex. A at
46:15-23.)
Similar to his theory on meal breaks, Plaintiff asserts that rest period violations occurred because
HNCA's "rest break policy was deficient in that it failed to include clear provisions for employee recourse
when the demands of the employer interfered with the ability to take a duty-free rest break." (MPA, p.
8:2-4.)
The analysis of the evidence in support of this claim, and the court's conclusion, is the same as for the
meal breaks. Under this theory of rest period violation, and given the paucity of supporting evidence, and
HNCA's undisputed rest period policy, Plaintiff's claims would depend upon individualized investigations
of each class member's personal experiences and practices in taking rest break periods or their
individual understandings as to their available options or remedies in the event of a missed or
interrupted rest break period. In sum, individual issues would predominate on this claim.
Off-the-Clock Computer Boot-Up Time and Log-Out Time
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
The evidence establishes that HNCA's policies require that its employees record their actual in and out
times. (Rodes Decl. ¶6.) HNCA's timekeeping system permits employees to manually type in their start
and stop times and HNCA's policies required Plaintiff and all other call center employees to accurately
enter their time. (Rodes Decl. ¶¶6-7 & Ex. A; Long Decl. ¶ 3, Ex. B at 86:14-18. ) Plaintiff testified in
deposition that he "understood that the company policy was for [him] to accurately record the time [he]
worked," and that "[he] was instructed to put in [his] actual time[,] which [he] did . . . ." (Long Decl. ¶ 2,
Ex. A at 56:20-23, 57:21-23.) This "include[d] when [he] started work, [and] when and if [he] took a meal
break . . . ." (Id. at 57:24-58:1.) Plaintiff agreed at his deposition that "the expectation of the company
was that [he] accurately record[ed] the hours that [he] worked," and that he did that "to the best of [his]
ability." (Id. at 58:6-11.)
During the relevant time period, HNCA's policies required employees to use a program called
PeopleSoft to log their time for purposes of payroll. (Long Decl. ¶3, Ex. B at 54:4-5.) On January 1,
2017, HNCA switched to using the EMPCenter timekeeping system for this purpose, and its policies
changed accordingly. (Id. at 54:6-7; Rodes Decl. ¶7.) The EMPCenter timekeeping system is a
web-based system that permits employees to log their time by clicking a button. PeopleSoft and
EMPCenter have both always permitted employees to manually enter their start and stop times. (Rodes
Decl. ¶7.) Although some employees used their desk phones to indicate their availability to take phone
calls, during the relevant time period employees never used the phone system to log their time for
purposes of payroll. (Will Montes Decl. ISO Oppo. To Class Cert. Mot. ("Montes Decl"), ¶¶ 3-5.)
Plaintiff's two theories of off-the-clock work are that his evidence indicates that: (1) in a small percentage
of work shifts some HNCA call center employees begin the process of logging on to their computers, and
particularly the customer call application, for a period of minutes, before the employee inputs his or her
commencement of work, i.e. punching in; and (2) that in a percentage of shifts HNCA employees
punch-out of work before they are logged off the call system. In the first scenario, Plaintiff contends that
the affected employees cannot record and are not being compensated for the time they wait for their
computer to boot-up, and in the second scenario there is a reasonable inference that the employee is
engaged in compensable work after punching out on the time clock but before the employee's phone is
logged out.
The conflict of fact concerning the time keeping systems is curious. There is significant evidence
submitted by HNCA that its computerized systems allowed time entries to be made, or altered, to reflect
actual time work started and time ended. On the other hand several of the declarations stated this was
not the case. It is not clear from the declarations that the declarants knew how to modify the entries to
make accurate time records but several of the declarations are clear that the declarants believed the
systems did not accurately reflect their start time and that they were not paid for the difference between
actual start and recorded start. Therefore to this extent there is an issue about the off the clock work that
can be resolved on a class wide basis: Did the time recording systems in effect during the relevant
periods prevent an accurate capture of the start time of the class members? That factual dispute is
capable of being resolved rather quickly and it would be efficient to resolve it on a class wide basis.
Therefore, to that extent the court will grant certification for the clock in claim.
The situation is different for the clock out claims. It is not clear from the evidence that the system
required work after logout. If work was done after the logout time that situation does not appear to have
been caused by the computers. An employee should know to stop work before clocking out. If off the
clock work was required there is no evidence that it was caused by a policy required by HNCA. Except
as stated above, individual issues would again predominate on these theories of off-the-clock time.
Therefore, except as stated above with regard to a login class, the request to certify the off-the-clock
claims is denied.
The motion fails on the derivative claims, since certification is denied upon the foundational claims.
DATE: 08/30/2019 MINUTE ORDER Page 6
DEPT: 35 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
For the foregoing reasons, Plaintiff's motion for class certification as his Claims 1 (meal period), 2 (rest
period), and 3 (hourly wages), and derivative Claims 4 (wage statements) and 5 (final wages), is denied.
Claims related to the renewed motion for summary adjudication
During the briefing process an issue arose regarding the briefing schedule and defendant's renewed
motion for summary adjudication. The defendant stipulated that if its motion was denied, the court could
grant certification of the class claims that were involved in that motion. The motion was later denied.
Therefore the court grants certification of a class described as "All individuals who are or previously were
employed by Defendant Health Net of California, Inc. in California and classified as non-exempt and
received "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA Incentive payments
and/or Wellness Incentive payments during the period of April 5, 2013 to December 31, 2016." Plaintiff
to prepare an order that contains the appropriate findings and definitions.
DATE: 08/30/2019 MINUTE ORDER Page 7
DEPT: 35 Calendar No.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 08/30/2019 TIME: 02:00:00 PM DEPT: 35 JUDICIAL OFFICER PRESIDING: Alan Perkins CLERK: D. Lashley REPORTER/ERM: B. Ryan, CSR # 11373 BAILIFF/COURT ATTENDANT: C. Carrillo CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017 CASE TITLE: Spears vs. Health Net of California Inc CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion to Certify a Class Action - Complex ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES Shaun Setareh, Assignee, present telephonically. Ruchira P Mukherjee, counsel, present for Plaintiff(s) telephonically. Timothy J Long, counsel, present for Defendant(s). The above-entitled matter came before this Court this day with the above named counsel present. The Court heard oral arguments from respective counsel. The Court affirmed the tentative ruling on the Motion for Class Certification with clarification as set forth in the record. The Court affirmed the tentative ruling on the PAGA motions with the following clarification: the Court changes the ruling to make clear that it is deciding only that the court either did not have the power to, or shouldn't, decide the PAGA motions now, not that it is deciding that it could never do so. The Court granted the Motion to Seal. Plaintiffs are directed to prepare proposed order for the certification motions within seven days and submit to Defense counsel for approval as to form. Defendant is directed to prepare proposed orders on the PAGA claims within seven days and submit to Plaintiff for approval as to form. Defendant to suggest contents of the trial Plan and when questions 1 through 6 should be answered if not part of the trial plan by September 11, 2019. Plaintiffs' response is due by September 20, 2019. Counsel stipulated to service by email. Proposed orders and trial plans should be filed directly in Department 35. DATE: 08/30/2019 MINUTE ORDER Page 1 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Plaintiffs' Motion for Class Certification TENTATIVE RULING The plaintiff Tomas Arana's motion for certification of the described class and subclasses in this wage and hour class action is granted in part and denied in part as set forth below. The court will issue a separate tentative ruling regarding the PAGA motions set for hearing at the same time as this motion. Plaintiff alleges that he can establish defendant Health Net of California, Inc. (HNCA): (1) required off-the-clock work in the form of a regimented computer and software start-up sequence; (2) imposed onerous work obligations causing employees to work off-the-clock outside their shifts (a behavior sometimes captured by Defendants' phone system logon/off entries); (3) imposed work demands resulting in unlawful meal period and rest breaks due to late, missed, or interrupted breaks; and (4) violated derivative obligations arising under California wage and hour laws. The above-referenced consolidated actions allege claims for relief as follows: (1) Failure to Provide Meal Periods (Lab. Code §§ 204, 223, 226.7, 512, and 1198); (2) Failure to Provide Rest Periods (Lab. Code §§ 204,223, 226.7, and 1198); (3) Failure to Pay Hourly Wages (Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198); (4) Failure to Provide Accurate Written Wage Statements (Lab. Code § 226(a)); (5) Failure to Timely Pay All Final Wages (Lab. Code §§ 201 -203); (6) Unfair Competition (Bus. & Prof Code §§ 17200, et seq.); and, (7) Civ. Penalties (Lab. Code §§ 2698, et seq.). Plaintiff's motion seeks certification as Claims 1 (meal period), 2 (rest period), and 3 (hourly wages), and derivative Claims 4 (wage statements) and 5 (final wages). To this end, plaintiff moves for certification of the following class: Class: All persons employed by Health Net of California, Inc. and Health Net, Inc. in hourly or non-exempt positions in California during the Relevant Time Period. Plaintiff further requests certification of such sub-classes as are necessary to manage the proposed classes, including penalty sub-classes limited in time by the applicable statutes of limitation, including subclasses as follows or as otherwise approved by the Court: (1) Off-the-Clock Telephone Time Sub-Class: All Class members who, based on Defendants' payroll, time clock, telephone, and other electronic records, were utilizing telephones or other electronic systems before clocking in at the start of their shifts or after clocking out at the end of their shift during the Relevant Time Period; (2) Computer Boot-Up Sub-Class: All Class members who logged onto or turned on a computer to access any time clock or timekeeping system to record their hours worked during the Relevant Time Period; (3) Meal Period Sub-Class: All Class members who worked a shift in excess of five hours during the Relevant Time Period; (4) Rest Period Sub-Class: All Class members who worked a shift of at least three and one-half (3.5) hours during the Relevant Time Period; (5) Wage Statement Penalties Sub-Class: All Class members employed by Defendants in California during the period beginning one year before the filing of the Action and ending when final judgment is entered; and (6) Waiting Time Penalties Sub-Class: All Class members who separated from their employment with Defendants during the period beginning three years before the filing of the Action and ending when final judgment is entered. The Court notes several initial matters for the record on the motion. The declarations of Toby Alfred, James Bjorseth, Shanel Allen, Veronica Perez, and Patricia Gonzales DATE: 08/30/2019 MINUTE ORDER Page 2 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS submitted in support of Plaintiff's motion for class certification have been withdrawn through stipulation of the parties and order entered into this matter by the Court on February 8, 2019. These declarations have not been considered on the motion. The Court has reviewed the declarations of Crystal Martinez, Sheena Boehl, Mynor Masaya, Charles Pearson, and Micheal Parker. The review included both the declarations of these individuals submitted by Plaintiff in support of the certification motion, and their subsequent declarations seeking to withdraw their prior declarations and/or to modify or clarify their testimony submitted in opposition by HNC. The Court has considered this testimony in total, and does not disregard these declarants' initial testimony in support of the motion. Defendant's objections to evidence (Toney Declaration) in support of Plaintiff's motion for certification are ruled upon as follows: overruled. Plaintiff moves pursuant to California Code of Civil Procedure section 382 for class certification on the grounds that: (1) the specified class and subclasses are ascertainable and sufficiently numerous, (2) common questions of law and fact predominate over individual issues, (2) the class representative's claims are typical of the class, (4) the class representative will adequately represent the interests of the class, and (5) class treatment is superior to non-class adjudication. In Brinker Restaurant Corp. v. Superior Court, the California Supreme Court summarized the clear requirements for the certification of a class. (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1021.) "The party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. (Id. citing Code Civ. Proc., § 382; Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089; Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 459.) "In turn, the 'community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.' " (Id. citing Fireside Bank, at p. 1089, quoting Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) "The 'ultimate question' the element of predominance presents is whether 'the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.'" (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th 1004, 1021.) "The answer hinges on 'whether the theory of recovery advanced by the proponents of certification is, as an analytical matter, likely to prove amenable to class treatment.'" (Id.) A court must examine the allegations of the complaint and supporting declarations (Id.) and consider whether the legal and factual issues they present are such that their resolution in a single class proceeding would be both desirable and feasible. "As a general rule if the defendant's liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages." (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) "'The certification question is "essentially a procedural one that does not ask whether an action is legally or factually meritorious."'" (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th 1004, 1023 citing Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326 ["'In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of [class certification] are met.' "].) "A class certification motion is not a license for a free-floating inquiry into the validity of the complaint's allegations; rather, resolution of disputes over the merits of a case generally must be postponed until after class certification has been decided (Fireside Bank v. Superior Court, supra, 40 DATE: 08/30/2019 MINUTE ORDER Page 3 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Cal.4th at pp. 1083–1086), with the court assuming for purposes of the certification motion that any claims have merit (Linder, at p. 443). The rule is that a court may "consider[] how various claims and defenses relate and may affect the course of the litigation" even though such "considerations ... may overlap the case's merits." (Fireside Bank v. Superior Court, supra, 40 Cal.4th at p. 1092.) In particular, whether common or individual questions predominate will often depend upon resolution of issues closely tied to the merits. (Linder v. Thrifty Oil Co., supra, 23 Cal.4th at p. 443.) To assess predominance, a court "must examine the issues framed by the pleadings and the law applicable to the causes of action alleged." (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.) It must determine whether the elements necessary to establish liability are susceptible of common proof or, if not, whether there are ways to manage effectively proof of any elements that may require individualized evidence. (See Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 334.) "[A]ny 'peek' a court takes into the merits at the certification stage must 'be limited to those aspects of the merits that affect the decisions essential' to class certification." (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th 1004, 1024 citing Schleicher v. Wendt (7th Cir. 2010) 618 F.3d 679, 685.) Brinker then restates the governing principles as follows. "Presented with a class certification motion, a trial court must examine the plaintiff's theory of recovery, assess the nature of the legal and factual disputes likely to be presented, and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold legal or factual questions, a court may, and indeed must, resolve them. Out of respect for the problems arising from one-way intervention, however, a court generally should eschew resolution of such issues unless necessary. (citation omitted.) Consequently, a trial court does not abuse its discretion if it certifies (or denies certification of) a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision." (Brinker Restaurant Corp. v. Superior Court, supra, 53 Cal. 4th 1004, 1024.) The Court considers the parties' competing points and authorities, and admissible evidence, governed by the foregoing general principles. The Court's analysis and decision to deny certification on each of the three core claims (off-the clock work, meal periods, and rest periods) focuses primarily upon the issue of whether Plaintiff has presented evidence of a well-defined community of interest on each, and more particularly whether the issues which may be jointly tried on each claim, when compared with those appearing by the evidence to require separate individualized adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. The Court does not find that the other main considerations on the motion including general ascertainability [with some questions], numerosity, class representation, lack of a present trial plan, or the general appropriateness and preference of class litigation for common wage and hour claims necessarily augur against certification. Instead, based upon the Plaintiff's showing, the Court does not find a well-defined community of interest on each claim, because it cannot be found on this record that the issues which may be jointly tried on each claim, when compared with those appearing by the evidence to require separate individualized adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to putative class. Meal Periods The evidence presented establishes that as an express policy matter, HNCA provided employees with a 30-minute meal period before their fifth hour of work, and employees who missed meal periods received appropriate penalties. (Long Decl. ¶3, Ex. B at 88:21-89:1, 89:14-18.) Plaintiff testified that he DATE: 08/30/2019 MINUTE ORDER Page 4 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS "understood that the company's policy was that [he] [was] to be provided with 30-minute-at least 30 minute lunches during which [he] [was] not supposed to be doing any work," as well as second meal periods for shifts that went longer than 11 hours (unless waived). (Id. ¶2, Ex. A at 55:3-11, 85:16-86:19; Rodes Dec. ¶¶ 12-13 & Exs. B, C; Long Decl. ¶3, Ex. B at 88:21-89:4, 89:14-18, 91:8-92:19.) Thus, as HNCA argues in opposition, Plaintiff's theory of common meal period violation is not that HNCA's relevant policy was unlawful. Instead, Plaintiff's theory is that the meal period violations at issue in the action were caused by HNCA's "lack of enforced policies designed to advise the Class of their recourse when the demands of their employer interfered with the ability to take breaks...." (MPA, p. 7:3-5.) Plaintiff's theory is also premised upon break violations caused by pressures of the employees' work. (Reply, p. 7:26-28.) Read liberally, the plaintiff's claim could be characterized as a claim that HNCA had a policy to violate its policies. (See discussion in Jiminez v. Allstate Ins. Co. (9th Cir. 2014) 765 F.3d 1161, 1166 n.5.) Under either theory of meal period violation, the plaintiff must show that there are predominant questions of law or fact. There must be a factually sufficient basis to support a conclusion that an unofficial policy exists and applies uniformly to all class members. The court recognizes that it should not be deciding the merits of the claims at this stage. Nonetheless, even if one takes as true all the declarations not withdrawn by stipulation, there is not sufficient evidence to show a company-wide unofficial policy. The defendant is a large organization and there are very few declarations. Those declarations show some manager conduct that could merit further training but do not support a conclusion that the offending conduct was the result of an unpublished official policy to not allow the meal breaks that were required by law and by the company published policies. Given the paucity of evidence, and HNCA's undisputed break policy, Plaintiff's claims would depend upon individualized investigations of each class member's personal experiences and practices in taking meal break periods or understandings as to their available options or remedies in the event of a missed or interrupted break period. In sum, individual issues would predominate on this claim. Rest Breaks The evidence on the record establishes that HNCA's rest break policy during the relevant time period was to permit employees to take a 15-minute rest period for every four hours worked, or major fraction thereof. (Rodes Decl. ¶¶12-13 & Exs. B, C.12 & Exs. B, C.) Plaintiff testified in deposition that the company's policy was "to provide [him] with rest breaks every four hours or fraction thereof," and the "company's policy...was to provide its employees with 15-minute rest breaks...." (Long Decl. ¶2, Ex. A at 46:15-23.) Similar to his theory on meal breaks, Plaintiff asserts that rest period violations occurred because HNCA's "rest break policy was deficient in that it failed to include clear provisions for employee recourse when the demands of the employer interfered with the ability to take a duty-free rest break." (MPA, p. 8:2-4.) The analysis of the evidence in support of this claim, and the court's conclusion, is the same as for the meal breaks. Under this theory of rest period violation, and given the paucity of supporting evidence, and HNCA's undisputed rest period policy, Plaintiff's claims would depend upon individualized investigations of each class member's personal experiences and practices in taking rest break periods or their individual understandings as to their available options or remedies in the event of a missed or interrupted rest break period. In sum, individual issues would predominate on this claim. Off-the-Clock Computer Boot-Up Time and Log-Out Time DATE: 08/30/2019 MINUTE ORDER Page 5 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS The evidence establishes that HNCA's policies require that its employees record their actual in and out times. (Rodes Decl. ¶6.) HNCA's timekeeping system permits employees to manually type in their start and stop times and HNCA's policies required Plaintiff and all other call center employees to accurately enter their time. (Rodes Decl. ¶¶6-7 & Ex. A; Long Decl. ¶ 3, Ex. B at 86:14-18. ) Plaintiff testified in deposition that he "understood that the company policy was for [him] to accurately record the time [he] worked," and that "[he] was instructed to put in [his] actual time[,] which [he] did . . . ." (Long Decl. ¶ 2, Ex. A at 56:20-23, 57:21-23.) This "include[d] when [he] started work, [and] when and if [he] took a meal break . . . ." (Id. at 57:24-58:1.) Plaintiff agreed at his deposition that "the expectation of the company was that [he] accurately record[ed] the hours that [he] worked," and that he did that "to the best of [his] ability." (Id. at 58:6-11.) During the relevant time period, HNCA's policies required employees to use a program called PeopleSoft to log their time for purposes of payroll. (Long Decl. ¶3, Ex. B at 54:4-5.) On January 1, 2017, HNCA switched to using the EMPCenter timekeeping system for this purpose, and its policies changed accordingly. (Id. at 54:6-7; Rodes Decl. ¶7.) The EMPCenter timekeeping system is a web-based system that permits employees to log their time by clicking a button. PeopleSoft and EMPCenter have both always permitted employees to manually enter their start and stop times. (Rodes Decl. ¶7.) Although some employees used their desk phones to indicate their availability to take phone calls, during the relevant time period employees never used the phone system to log their time for purposes of payroll. (Will Montes Decl. ISO Oppo. To Class Cert. Mot. ("Montes Decl"), ¶¶ 3-5.) Plaintiff's two theories of off-the-clock work are that his evidence indicates that: (1) in a small percentage of work shifts some HNCA call center employees begin the process of logging on to their computers, and particularly the customer call application, for a period of minutes, before the employee inputs his or her commencement of work, i.e. punching in; and (2) that in a percentage of shifts HNCA employees punch-out of work before they are logged off the call system. In the first scenario, Plaintiff contends that the affected employees cannot record and are not being compensated for the time they wait for their computer to boot-up, and in the second scenario there is a reasonable inference that the employee is engaged in compensable work after punching out on the time clock but before the employee's phone is logged out. The conflict of fact concerning the time keeping systems is curious. There is significant evidence submitted by HNCA that its computerized systems allowed time entries to be made, or altered, to reflect actual time work started and time ended. On the other hand several of the declarations stated this was not the case. It is not clear from the declarations that the declarants knew how to modify the entries to make accurate time records but several of the declarations are clear that the declarants believed the systems did not accurately reflect their start time and that they were not paid for the difference between actual start and recorded start. Therefore to this extent there is an issue about the off the clock work that can be resolved on a class wide basis: Did the time recording systems in effect during the relevant periods prevent an accurate capture of the start time of the class members? That factual dispute is capable of being resolved rather quickly and it would be efficient to resolve it on a class wide basis. Therefore, to that extent the court will grant certification for the clock in claim. The situation is different for the clock out claims. It is not clear from the evidence that the system required work after logout. If work was done after the logout time that situation does not appear to have been caused by the computers. An employee should know to stop work before clocking out. If off the clock work was required there is no evidence that it was caused by a policy required by HNCA. Except as stated above, individual issues would again predominate on these theories of off-the-clock time. Therefore, except as stated above with regard to a login class, the request to certify the off-the-clock claims is denied. The motion fails on the derivative claims, since certification is denied upon the foundational claims. DATE: 08/30/2019 MINUTE ORDER Page 6 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS For the foregoing reasons, Plaintiff's motion for class certification as his Claims 1 (meal period), 2 (rest period), and 3 (hourly wages), and derivative Claims 4 (wage statements) and 5 (final wages), is denied. Claims related to the renewed motion for summary adjudication During the briefing process an issue arose regarding the briefing schedule and defendant's renewed motion for summary adjudication. The defendant stipulated that if its motion was denied, the court could grant certification of the class claims that were involved in that motion. The motion was later denied. Therefore the court grants certification of a class described as "All individuals who are or previously were employed by Defendant Health Net of California, Inc. in California and classified as non-exempt and received "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA Incentive payments and/or Wellness Incentive payments during the period of April 5, 2013 to December 31, 2016." Plaintiff to prepare an order that contains the appropriate findings and definitions. DATE: 08/30/2019 MINUTE ORDER Page 7 DEPT: 35 Calendar No.