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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 10/16/2020 TIME: 03:00:00 PM DEPT: 41
JUDICIAL OFFICER PRESIDING: David De Alba
CLERK: N. Smith
REPORTER/ERM: E. Teklinsky CSR# 7895
BAILIFF/COURT ATTENDANT:
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 ID/DOCUMENT ID: ,18301384
EVENT TYPE: Motion - Other - Complex
MOVING PARTY: Health Net of California Inc
CAUSAL DOCUMENT/DATE FILED: Motion to Strike Arana's Representative Paga Claims, 03/06/2020
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
Piya Mukherjee, counsel present on behalf of Plaintiff Spears
William Pao, counsel present on behalf of Plaintiff Arana
Sam Hyde, counsel present on behalf of Defendant Health Net
Tim Long, counsel present on behalf of Defendant Health Net
The following shall constitute the Court's tentative ruling on the above matter to be heard in Department
41, on Friday October 16, 2020, at 3:00 p.m. This tentative ruling shall become the final ruling of the
Court unless a party wishing to be heard so advises the clerk of Department 41 no later than 4:00 p.m.
on the court day preceding the hearing, and further advises the clerk that such party has notified the
other side of its intention to appear.
The Court remains closed to personal access in civil proceedings of this nature by order of the Presiding
Judge in light of the continuing pandemic health restrictions. Thus, if a hearing is requested, it will be
conducted remotely through the Zoom application and live-streamed on the court's YouTube page. A
link to the court's YouTube page is available on the Sacramento County Superior Court's public website.
Once a hearing is requested, refer to the Zoom instructions at the end of this tentative.
Defendant, HEALTH NET OF CALIFORNIA, INC. ("HNCA"), moves the Court for an order striking
Plaintiff TOMAS R. ARANA'S ("Arana") representative claims asserted by him pursuant to the Private
Attorneys General Act (PAGA, Lab. Code §2698 et seq.) in the Consolidated Complaint filed December
21, 2017. The motion is denied as set forth below.
Arana's PAGA claims asserted against HNCA in Arana's original and amended PAGA Notice to the
Labor and Workforce Development Agency (the "LWDA") were as follows: (1) HNCA's rounding policies
resulted in employees' time being inaccurately recorded and, as a result, inaccurately paid; (2) HNCA
improperly classified certain employees as being exempt from overtime; (3) HNCA incorrectly calculated
employees' regular rate of pay by failing to include non-discretionary bonuses and "other remuneration"
in that rate; (4) HNCA knew or should have known that employees were working off the clock and were
not being compensated for that time; (5) HNCA violated the Labor Code's requirements to provide meal
breaks; and (6) HNCA violated the Labor Code's requirement to provide rest breaks. In addition, Arana
alleged claims derived from these violations for (1) a failure to pay premium wages at the regular rate;
DATE: 10/16/2020 MINUTE ORDER Page 1
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
(2) a failure to provide accurate written wage statements; (3) a failure to timely provide final wages to
discharged employees.
The Trial Presentation and Management Plan ("Trial Plan") jointly filed by Arana and his co-Plaintiff
ANDREA SPEARS on January 24, 2020, now indicates that the plaintiffs' PAGA claims are pared down
to four which are described as: (1) Miscalculation Class - derivative PAGA; (2) Off-the-Clock Class -
derivative PAGA; (3) Meal Period Premium PAGA; and (4) EMPCenter Timekeeping System Off the
Clock PAGA. Based upon the parties' points and authorities, the Court understands that as a starting
point, this motion and its analysis are therefore primarily focused on these remaining PAGA claims.
Arana's Trial Plan indicates that his Off-the-Clock PAGA claim takes two forms. First, Arana's "Off the
Clock Claim" alleges that "the time recording systems in effect during the relevant periods prevent[ed] an
accurate capture of the start time of the class members." Arana also alleges an "EMPCenter
Timekeeping System Off the Clock PAGA Claim" (the "EMPCenter PAGA Claim"), which alleges that
from January 1, 2017 to the present, HNCA's policies "uniformly failed to advise [employees] that they
could manually enter their start and stop times," resulting in those employees performing work off the
clock. On this motion, HNCA argues that under either Off-the-Clock theory, Arana's PAGA claims fail
and must be stricken because both theories are barred by PAGA's one-year statute of limitations, and
both present insurmountable trial manageability problems for the Court. HNCA further contends that the
EMPCenter PAGA Claim theory was never raised in Arana's LWDA Notice, so it was never exhausted
with the LWDA which is fatal to the claim now.
Next, Arana alleges a "Meal Period PAGA Claim" contending that HNCA's failure to advise its
employees to use the "DTO" payroll code "resulted in numerous unpaid meal period claims." HNCA
argues this claim should be stricken under the doctrine of judicial estoppel because it is inconsistent with
the meal period claim Arana has previously asserted in this action. In addition, HNCA contends that
Arana's Meal Period PAGA Claim is also barred by the statute of limitations and cannot be manageably
tried.
HNCA argues the Arana's PAGA claim for denial of rest breaks should be stricken because Arana has
apparently withdrawn it because that claim does not appear in the Trial Plan.
HNCA concludes that if Arana's stand-alone PAGA claims are stricken, his remaining PAGA claims fail
too because they are purely derivative of the stricken claims.
Arana opposes HNCA's motion to strike, but does not join issue on all of HNCA's arguments or on all of
the challenged PAGA claims. First, Arana argues that HNCA's motion is procedurally improper and
untimely because the motion is not a proper motion to strike, and is not framed as a demurrer or motion
for summary adjudication. Arana also argues that prior similar motions by HNCA have been denied thus
implicating Code of Civil Procedure section 1008 requirements. And, Arana contends that HNCA
waived, by failing to timely raise at the pleading stage, its procedural challenges to the sufficiency of
Arana's LWDA notice and exhaustion of claims alleged in the Consolidated Complaint. Second, Arana
argues that his PAGA claims should not be stricken based upon class-action requirements like
manageability because PAGA claims are not subject to such procedural restrictions. Third, Arana
argues that his LWDA notice was sufficient to put HNCA on notice of his Off-the-Clock theories,
including the EMPCenter policy theory. Fourth, Arana argues his PAGA action is not time-barred
because he filed it "well within one-year of his PAGA Notice." However, in the event the Court finds that
Arana's claims are barred, he asks leave to file a First Amended Consolidated Complaint that will
substitute in other putative class members in Arana's stead relying upon class action authorities.
In Reply, HNCA notes that Arana's opposition does not address the rest break or meal period claims,
and argues that Arana's silence on these matters are concessions. HNCA also contends that Arana has
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
stipulated he is no longer pursuing PAGA claims based on his having been misclassified as an exempt
employee, or that any sort of bonus was not included in the regular rate when calculating overtime.
"Post-Pleading" Evidentiary Motion To Strike
The Court's initial concern with the present motion is whether it is procedurally proper and supported by
law. Whether the motion is a pleading motion, an evidentiary motion, or both, dictate the mandatory
procedures to be followed and the standard(s) to be employed by the Court in resolving the issues
raised.
HNCA has filed two concurrent "motions to strike" - one as to Arana's PAGA claims and the other as to
Spears' PAGA claims. In that context, Arana has attempted to incorporate by reference various
arguments and authorities set forth only in the Spears' motion thereby evading page limitations. Among
those incorporations, are HNCA's legal arguments as to why its present motion, fashioned as a motion
to "strike", is a procedurally proper and available tool to seek the relief it requests, i.e. the dismissal of
Arana's PAGA claims. As HNCA appears to concede, the present motion is not a motion to strike "as
used during the pleading stage." (HNCA [Spears] MPA, p. 10:10-19, incorporated by reference into
HNCA [Arana] MPA, p. 9:2-7.) As opposed to a statutory motion to strike a pleading, HNCA describes
the present motion as a "post-pleading" motion that asks the Court "to weigh evidence and determine
whether the particular claims are susceptible to litigation on a representative basis." HNCA relies upon
authorities where the court was assessing challenges by defendants against class action claims
preemptively attacking class certification by raising deficiencies in the various requisites for that special
form of representative litigation. HNCA also contends that its motion to strike can be heard by this Court
under its broad statutory authority to adopt procedures and processes necessary to carry out justice,
even if not expressly prescribed by law citing Code of Civil Procedure sections 128(a)(8), 187, and
Government Code section 68070. HNCA also cites Cottle v. Superior Court (1992) 3 Cal.App.4th 1367,
1377 for the proposition that "courts have inherent equity, supervisory and administrative powers as well
as inherent power to control litigation before them," thereby allowing them to fashion "new forms of
procedures when required to deal with the rights of the parties and to manage the caseload of the court"
out of necessity where rights would be lost or the court could not function because of the absence of a
previously established procedural rule. (HNCA [Spears] MPA, p. 10:20-28, incorporated by reference
into HNCA [Arana] MPA, p. 9:2-7.)
The only authority cited by HNCA that appears to note a "post-pleading" motion to strike is Esparza v.
Safeway, Inc. (2019) 36 Cal. App. 5th 42, 47 which HNCA describes as a case affirming the trial court's
granting of a motion to strike PAGA claims because the plaintiffs' claims were time-barred. The opinion
is not entirely clear as to the procedural context of the defendant's motion to strike in that long
procedurally complex case. For example, the opinion is not clear whether the motion to strike was a
"pleading" motion as opposed to an evidence weighing motion as proposed here by HNCA. And, it does
not appear that the parties disputed the "motion to strike" procedure employed in that matter in the
appellate court. In that regard, the Court does not find the case to be strong authority for the proposition
that this Court can dismiss a PAGA claim on a "motion to strike" during which it weighs evidence and
determines whether or not the plaintiff's PAGA claims are susceptible to litigation on a representative
basis.
The Court is also not persuaded that it is simply free to construct such a hybrid motion under the broad
authority of Code of Civil Procedure section 128 or the rationale of Cottle v. Superior Court simply
because this is a PAGA case, a putative representative or complex civil action. The law currently
provides several readily available procedural tools, all accompanied by their own rules, requirements,
limits, and standards that could properly bring HNCA's various challenges to Arana's PAGA claims
before the Court. Where the law already provides procedures to request an order, remedy or relief, the
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
Court is not encouraged to construct its own.
Here, HNCA's primary arguments are premised upon theories of judicial estoppel, failure to exhaust
administrative remedies, the statute of limitations, and whether the claims may be manageably tried by
the Court. Depending upon the bases of these arguments, they can/could be raised by a proper timely
pleading motion (demurrer, MJOP, motion to strike), or by a motion for summary adjudication. However,
the law does not provide for an evidentiary motion to "strike" claims that in essence results in the
dismissal of some or all of the plaintiff's claims.
In this vein, a motion to strike that is supported by facts outside the pleadings is a "speaking motion,"
which will ordinarily be treated as a motion for summary judgment or adjudication under Code Civ. Proc.
§ 437c. (City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1914.) A
speaking motion to strike that is treated as a motion for summary adjudication must therefore comply
with the specific provisions of Code Civ. Proc. § 437c. (See, e.g., Vesely v. Sager (1971) 5 Cal.
3d 153, 167.) Thus, such a motion to strike will be granted only if the evidence filed in support of the
motion are sufficient to sustain a judgment in favor of the moving party and the evidence filed in
opposition are insufficient to raise a triable issue of fact. (See Mediterranean Exports, Inc. v. Superior
Court (1981) 119 Cal.App.3d 605, 616.) A "motion to strike" that attacks a complaint on the ground that
a claim fails to state facts sufficient to constitute a cause of action effectively seeks a judgment on the
pleadings and may be treated accordingly by the court. (Pierson v. Sharp Memorial Hospital, Inc. (1989)
216 Cal. App. 3d 340, 342-343.)
In light of the foregoing, the Court finds that it is procedurally prevented from resolving HNCA's motion to
the extent it requires the Court to weigh evidence because the motion is not properly presented as an
evidentiary motion, like a motion for summary adjudication, and Arana has asserted the deficiency in his
opposition. The motion is also not properly structured to resolve as a motion for judgment on the
pleadings. For these reasons, the motion is denied.
Manageability
With respect to the issue of "manageability," the Court is also not persuaded that it can "strike" a PAGA
claim on this record upon the anticipatory contention that it is not "manageable" as that concept is
employed in class action litigation.
As argued by Arana in opposition, our Supreme Court has held that class action requirements "need not
be met when an employee's representative action against an employer is seeking civil penalties under"
PAGA. (Arias v. Superior Court (2009) 46 Cal.4th 969, 975.) And, manageability is a class action
requirement. "In considering whether a class action is a superior device for resolving a controversy, the
manageability of individual issues is just as important as the existence of common questions uniting the
proposed class." (Duran v. U.S. National Bank Association (2014) 59 Cal.4th 1, 29.) The Court is not
aware of any published California authority imposing an analogous manageability requirement in PAGA
actions.
HNCA represents that "a PAGA plaintiff has the burden to demonstrate that claims brought in a
representative capacity do not pose manageability problems for the Court." (HNCA [Arana] MPA,
p.15:18-21.) HNCA cites Williams v. Superior Court (2017) 3 Cal.5th 531, 559 (Williams), and describes
the opinion as "stating that a plaintiff bringing a PAGA representative action must "render trial of the
action manageable." (Id., emphasis added.) The Court's review of Williams does not find that it imposes
a mandatory "manageability" requirement on PAGA claims.
In Williams, the Supreme Court considered the scope of discovery in a representative PAGA action.
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
(See Williams, supra, 3 Cal.5th at pp. 537-538.) The plaintiff alleged that his employer failed to provide
meal and rest periods and sought to pursue civil penalties for the violations in a representative PAGA
action. (Id. at pp. 538-539.) During discovery, the plaintiff sought to discover the names and contact
information for all affected employees in the state. (Id. at p. 539.) The store opposed the request as
overbroad and unduly burdensome, and the trial court agreed; it ordered the store to provide the
requested information for the single store at which the plaintiff worked. (Ibid.) The plaintiff sought writ
relief, which the appellate court denied. The Supreme Court "granted review to resolve issues of first
impression concerning the appropriate scope of discovery in a PAGA action." (Id. at p. 540.)
In the course of resolving those issues, the Supreme Court rejected the appellate court's reasoning that
the plaintiff's broad discovery request could be granted if he demonstrated a "uniform companywide
policy." (Williams, supra, 3 Cal.5th at p. 559.) The Court explained: "A uniform policy may be a
convenient or desirable way to show commonality of interest in a case where class certification is
sought, but it is not a condition for discovery, or even success, in a PAGA action, where recovery on
behalf of the state and aggrieved employees may be had for each violation, whether pursuant to a
uniform policy or not. [Citation.] This is not to say uniform policies play no role in PAGA cases; proof of a
uniform policy is one way a plaintiff might seek to render trial of the action manageable. But nothing in
PAGA or our privacy precedents suggests courts can or should condition disclosure of contact
information, which might lead to proof of a uniform or companywide policy, on prior proof of a uniform or
companywide policy." (Ibid.)
Williams does not support an assertion that a representative plaintiff in an action under PAGA must seek
to render trial of the action manageable. Williams neither considered nor held that plaintiffs in a PAGA
action must demonstrate that trial of their claims is manageable on a class-wide basis.
The Court notes that the limited federal cases addressing this issue are not in agreement, and do not
compel a different conclusion here.
While the Court does not hold that it may not exercise its authority to reasonably manage the litigation
and the presentation of evidence at trial, it does not find that it would be appropriate to dismiss Arana's
PAGA claims on the contention that the claims cannot be manageably tried based upon the first Trial
Plan and HNCA's "motion to strike."
Apparent Abandonment
Despite the foregoing, the Court does not ignore Arana's apparent abandonment of several of his
original PAGA claims through his failure to oppose the motion as to those claims and contents of his
Trial Plan. The Court encourages the parties to conserve future resources by formally agreeing as to
Arana's claims that remain, and those that may now be dismissed.
****
NOTICE: Given the circumstances presented by the ongoing COVID-19 pandemic, this hearing
will be conducted remotely via Zoom [which includes telephonic and teleconferencing options].
The Department 41 Zoom link is: https://saccourt.zoom.us/my/dept41a.
The Zoom ID is: 349 373 7884. The Zoom number is (888) 475-4499.
Any party desiring an official record shall make arrangements for reporting services not later than 4:30
p.m. on the day before the hearing with the clerk of the department where the matter will be heard and
deposit fees with the clerk prior to the hearing, but not later than the conclusion of the court session.
DATE: 10/16/2020 MINUTE ORDER Page 5
DEPT: 41 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
The fee is $30.00 for civil proceedings lasting under one hour and is $239.00 per half day. Local Rule
9.06(B) and Government Code 68086.
COURT RULING:
The matter was argued and submitted.
The Court takes this matter under submission.
DATE: 10/16/2020 MINUTE ORDER Page 6
DEPT: 41 Calendar No.
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 10/16/2020 TIME: 03:00:00 PM DEPT: 41 JUDICIAL OFFICER PRESIDING: David De Alba CLERK: N. Smith REPORTER/ERM: E. Teklinsky CSR# 7895 BAILIFF/COURT ATTENDANT: 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 ID/DOCUMENT ID: ,18301384 EVENT TYPE: Motion - Other - Complex MOVING PARTY: Health Net of California Inc CAUSAL DOCUMENT/DATE FILED: Motion to Strike Arana's Representative Paga Claims, 03/06/2020 ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES Piya Mukherjee, counsel present on behalf of Plaintiff Spears William Pao, counsel present on behalf of Plaintiff Arana Sam Hyde, counsel present on behalf of Defendant Health Net Tim Long, counsel present on behalf of Defendant Health Net The following shall constitute the Court's tentative ruling on the above matter to be heard in Department 41, on Friday October 16, 2020, at 3:00 p.m. This tentative ruling shall become the final ruling of the Court unless a party wishing to be heard so advises the clerk of Department 41 no later than 4:00 p.m. on the court day preceding the hearing, and further advises the clerk that such party has notified the other side of its intention to appear. The Court remains closed to personal access in civil proceedings of this nature by order of the Presiding Judge in light of the continuing pandemic health restrictions. Thus, if a hearing is requested, it will be conducted remotely through the Zoom application and live-streamed on the court's YouTube page. A link to the court's YouTube page is available on the Sacramento County Superior Court's public website. Once a hearing is requested, refer to the Zoom instructions at the end of this tentative. Defendant, HEALTH NET OF CALIFORNIA, INC. ("HNCA"), moves the Court for an order striking Plaintiff TOMAS R. ARANA'S ("Arana") representative claims asserted by him pursuant to the Private Attorneys General Act (PAGA, Lab. Code §2698 et seq.) in the Consolidated Complaint filed December 21, 2017. The motion is denied as set forth below. Arana's PAGA claims asserted against HNCA in Arana's original and amended PAGA Notice to the Labor and Workforce Development Agency (the "LWDA") were as follows: (1) HNCA's rounding policies resulted in employees' time being inaccurately recorded and, as a result, inaccurately paid; (2) HNCA improperly classified certain employees as being exempt from overtime; (3) HNCA incorrectly calculated employees' regular rate of pay by failing to include non-discretionary bonuses and "other remuneration" in that rate; (4) HNCA knew or should have known that employees were working off the clock and were not being compensated for that time; (5) HNCA violated the Labor Code's requirements to provide meal breaks; and (6) HNCA violated the Labor Code's requirement to provide rest breaks. In addition, Arana alleged claims derived from these violations for (1) a failure to pay premium wages at the regular rate; DATE: 10/16/2020 MINUTE ORDER Page 1 DEPT: 41 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS (2) a failure to provide accurate written wage statements; (3) a failure to timely provide final wages to discharged employees. The Trial Presentation and Management Plan ("Trial Plan") jointly filed by Arana and his co-Plaintiff ANDREA SPEARS on January 24, 2020, now indicates that the plaintiffs' PAGA claims are pared down to four which are described as: (1) Miscalculation Class - derivative PAGA; (2) Off-the-Clock Class - derivative PAGA; (3) Meal Period Premium PAGA; and (4) EMPCenter Timekeeping System Off the Clock PAGA. Based upon the parties' points and authorities, the Court understands that as a starting point, this motion and its analysis are therefore primarily focused on these remaining PAGA claims. Arana's Trial Plan indicates that his Off-the-Clock PAGA claim takes two forms. First, Arana's "Off the Clock Claim" alleges that "the time recording systems in effect during the relevant periods prevent[ed] an accurate capture of the start time of the class members." Arana also alleges an "EMPCenter Timekeeping System Off the Clock PAGA Claim" (the "EMPCenter PAGA Claim"), which alleges that from January 1, 2017 to the present, HNCA's policies "uniformly failed to advise [employees] that they could manually enter their start and stop times," resulting in those employees performing work off the clock. On this motion, HNCA argues that under either Off-the-Clock theory, Arana's PAGA claims fail and must be stricken because both theories are barred by PAGA's one-year statute of limitations, and both present insurmountable trial manageability problems for the Court. HNCA further contends that the EMPCenter PAGA Claim theory was never raised in Arana's LWDA Notice, so it was never exhausted with the LWDA which is fatal to the claim now. Next, Arana alleges a "Meal Period PAGA Claim" contending that HNCA's failure to advise its employees to use the "DTO" payroll code "resulted in numerous unpaid meal period claims." HNCA argues this claim should be stricken under the doctrine of judicial estoppel because it is inconsistent with the meal period claim Arana has previously asserted in this action. In addition, HNCA contends that Arana's Meal Period PAGA Claim is also barred by the statute of limitations and cannot be manageably tried. HNCA argues the Arana's PAGA claim for denial of rest breaks should be stricken because Arana has apparently withdrawn it because that claim does not appear in the Trial Plan. HNCA concludes that if Arana's stand-alone PAGA claims are stricken, his remaining PAGA claims fail too because they are purely derivative of the stricken claims. Arana opposes HNCA's motion to strike, but does not join issue on all of HNCA's arguments or on all of the challenged PAGA claims. First, Arana argues that HNCA's motion is procedurally improper and untimely because the motion is not a proper motion to strike, and is not framed as a demurrer or motion for summary adjudication. Arana also argues that prior similar motions by HNCA have been denied thus implicating Code of Civil Procedure section 1008 requirements. And, Arana contends that HNCA waived, by failing to timely raise at the pleading stage, its procedural challenges to the sufficiency of Arana's LWDA notice and exhaustion of claims alleged in the Consolidated Complaint. Second, Arana argues that his PAGA claims should not be stricken based upon class-action requirements like manageability because PAGA claims are not subject to such procedural restrictions. Third, Arana argues that his LWDA notice was sufficient to put HNCA on notice of his Off-the-Clock theories, including the EMPCenter policy theory. Fourth, Arana argues his PAGA action is not time-barred because he filed it "well within one-year of his PAGA Notice." However, in the event the Court finds that Arana's claims are barred, he asks leave to file a First Amended Consolidated Complaint that will substitute in other putative class members in Arana's stead relying upon class action authorities. In Reply, HNCA notes that Arana's opposition does not address the rest break or meal period claims, and argues that Arana's silence on these matters are concessions. HNCA also contends that Arana has DATE: 10/16/2020 MINUTE ORDER Page 2 DEPT: 41 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS stipulated he is no longer pursuing PAGA claims based on his having been misclassified as an exempt employee, or that any sort of bonus was not included in the regular rate when calculating overtime. "Post-Pleading" Evidentiary Motion To Strike The Court's initial concern with the present motion is whether it is procedurally proper and supported by law. Whether the motion is a pleading motion, an evidentiary motion, or both, dictate the mandatory procedures to be followed and the standard(s) to be employed by the Court in resolving the issues raised. HNCA has filed two concurrent "motions to strike" - one as to Arana's PAGA claims and the other as to Spears' PAGA claims. In that context, Arana has attempted to incorporate by reference various arguments and authorities set forth only in the Spears' motion thereby evading page limitations. Among those incorporations, are HNCA's legal arguments as to why its present motion, fashioned as a motion to "strike", is a procedurally proper and available tool to seek the relief it requests, i.e. the dismissal of Arana's PAGA claims. As HNCA appears to concede, the present motion is not a motion to strike "as used during the pleading stage." (HNCA [Spears] MPA, p. 10:10-19, incorporated by reference into HNCA [Arana] MPA, p. 9:2-7.) As opposed to a statutory motion to strike a pleading, HNCA describes the present motion as a "post-pleading" motion that asks the Court "to weigh evidence and determine whether the particular claims are susceptible to litigation on a representative basis." HNCA relies upon authorities where the court was assessing challenges by defendants against class action claims preemptively attacking class certification by raising deficiencies in the various requisites for that special form of representative litigation. HNCA also contends that its motion to strike can be heard by this Court under its broad statutory authority to adopt procedures and processes necessary to carry out justice, even if not expressly prescribed by law citing Code of Civil Procedure sections 128(a)(8), 187, and Government Code section 68070. HNCA also cites Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377 for the proposition that "courts have inherent equity, supervisory and administrative powers as well as inherent power to control litigation before them," thereby allowing them to fashion "new forms of procedures when required to deal with the rights of the parties and to manage the caseload of the court" out of necessity where rights would be lost or the court could not function because of the absence of a previously established procedural rule. (HNCA [Spears] MPA, p. 10:20-28, incorporated by reference into HNCA [Arana] MPA, p. 9:2-7.) The only authority cited by HNCA that appears to note a "post-pleading" motion to strike is Esparza v. Safeway, Inc. (2019) 36 Cal. App. 5th 42, 47 which HNCA describes as a case affirming the trial court's granting of a motion to strike PAGA claims because the plaintiffs' claims were time-barred. The opinion is not entirely clear as to the procedural context of the defendant's motion to strike in that long procedurally complex case. For example, the opinion is not clear whether the motion to strike was a "pleading" motion as opposed to an evidence weighing motion as proposed here by HNCA. And, it does not appear that the parties disputed the "motion to strike" procedure employed in that matter in the appellate court. In that regard, the Court does not find the case to be strong authority for the proposition that this Court can dismiss a PAGA claim on a "motion to strike" during which it weighs evidence and determines whether or not the plaintiff's PAGA claims are susceptible to litigation on a representative basis. The Court is also not persuaded that it is simply free to construct such a hybrid motion under the broad authority of Code of Civil Procedure section 128 or the rationale of Cottle v. Superior Court simply because this is a PAGA case, a putative representative or complex civil action. The law currently provides several readily available procedural tools, all accompanied by their own rules, requirements, limits, and standards that could properly bring HNCA's various challenges to Arana's PAGA claims before the Court. Where the law already provides procedures to request an order, remedy or relief, the DATE: 10/16/2020 MINUTE ORDER Page 3 DEPT: 41 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Court is not encouraged to construct its own. Here, HNCA's primary arguments are premised upon theories of judicial estoppel, failure to exhaust administrative remedies, the statute of limitations, and whether the claims may be manageably tried by the Court. Depending upon the bases of these arguments, they can/could be raised by a proper timely pleading motion (demurrer, MJOP, motion to strike), or by a motion for summary adjudication. However, the law does not provide for an evidentiary motion to "strike" claims that in essence results in the dismissal of some or all of the plaintiff's claims. In this vein, a motion to strike that is supported by facts outside the pleadings is a "speaking motion," which will ordinarily be treated as a motion for summary judgment or adjudication under Code Civ. Proc. § 437c. (City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911, 1914.) A speaking motion to strike that is treated as a motion for summary adjudication must therefore comply with the specific provisions of Code Civ. Proc. § 437c. (See, e.g., Vesely v. Sager (1971) 5 Cal. 3d 153, 167.) Thus, such a motion to strike will be granted only if the evidence filed in support of the motion are sufficient to sustain a judgment in favor of the moving party and the evidence filed in opposition are insufficient to raise a triable issue of fact. (See Mediterranean Exports, Inc. v. Superior Court (1981) 119 Cal.App.3d 605, 616.) A "motion to strike" that attacks a complaint on the ground that a claim fails to state facts sufficient to constitute a cause of action effectively seeks a judgment on the pleadings and may be treated accordingly by the court. (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal. App. 3d 340, 342-343.) In light of the foregoing, the Court finds that it is procedurally prevented from resolving HNCA's motion to the extent it requires the Court to weigh evidence because the motion is not properly presented as an evidentiary motion, like a motion for summary adjudication, and Arana has asserted the deficiency in his opposition. The motion is also not properly structured to resolve as a motion for judgment on the pleadings. For these reasons, the motion is denied. Manageability With respect to the issue of "manageability," the Court is also not persuaded that it can "strike" a PAGA claim on this record upon the anticipatory contention that it is not "manageable" as that concept is employed in class action litigation. As argued by Arana in opposition, our Supreme Court has held that class action requirements "need not be met when an employee's representative action against an employer is seeking civil penalties under" PAGA. (Arias v. Superior Court (2009) 46 Cal.4th 969, 975.) And, manageability is a class action requirement. "In considering whether a class action is a superior device for resolving a controversy, the manageability of individual issues is just as important as the existence of common questions uniting the proposed class." (Duran v. U.S. National Bank Association (2014) 59 Cal.4th 1, 29.) The Court is not aware of any published California authority imposing an analogous manageability requirement in PAGA actions. HNCA represents that "a PAGA plaintiff has the burden to demonstrate that claims brought in a representative capacity do not pose manageability problems for the Court." (HNCA [Arana] MPA, p.15:18-21.) HNCA cites Williams v. Superior Court (2017) 3 Cal.5th 531, 559 (Williams), and describes the opinion as "stating that a plaintiff bringing a PAGA representative action must "render trial of the action manageable." (Id., emphasis added.) The Court's review of Williams does not find that it imposes a mandatory "manageability" requirement on PAGA claims. In Williams, the Supreme Court considered the scope of discovery in a representative PAGA action. DATE: 10/16/2020 MINUTE ORDER Page 4 DEPT: 41 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS (See Williams, supra, 3 Cal.5th at pp. 537-538.) The plaintiff alleged that his employer failed to provide meal and rest periods and sought to pursue civil penalties for the violations in a representative PAGA action. (Id. at pp. 538-539.) During discovery, the plaintiff sought to discover the names and contact information for all affected employees in the state. (Id. at p. 539.) The store opposed the request as overbroad and unduly burdensome, and the trial court agreed; it ordered the store to provide the requested information for the single store at which the plaintiff worked. (Ibid.) The plaintiff sought writ relief, which the appellate court denied. The Supreme Court "granted review to resolve issues of first impression concerning the appropriate scope of discovery in a PAGA action." (Id. at p. 540.) In the course of resolving those issues, the Supreme Court rejected the appellate court's reasoning that the plaintiff's broad discovery request could be granted if he demonstrated a "uniform companywide policy." (Williams, supra, 3 Cal.5th at p. 559.) The Court explained: "A uniform policy may be a convenient or desirable way to show commonality of interest in a case where class certification is sought, but it is not a condition for discovery, or even success, in a PAGA action, where recovery on behalf of the state and aggrieved employees may be had for each violation, whether pursuant to a uniform policy or not. [Citation.] This is not to say uniform policies play no role in PAGA cases; proof of a uniform policy is one way a plaintiff might seek to render trial of the action manageable. But nothing in PAGA or our privacy precedents suggests courts can or should condition disclosure of contact information, which might lead to proof of a uniform or companywide policy, on prior proof of a uniform or companywide policy." (Ibid.) Williams does not support an assertion that a representative plaintiff in an action under PAGA must seek to render trial of the action manageable. Williams neither considered nor held that plaintiffs in a PAGA action must demonstrate that trial of their claims is manageable on a class-wide basis. The Court notes that the limited federal cases addressing this issue are not in agreement, and do not compel a different conclusion here. While the Court does not hold that it may not exercise its authority to reasonably manage the litigation and the presentation of evidence at trial, it does not find that it would be appropriate to dismiss Arana's PAGA claims on the contention that the claims cannot be manageably tried based upon the first Trial Plan and HNCA's "motion to strike." Apparent Abandonment Despite the foregoing, the Court does not ignore Arana's apparent abandonment of several of his original PAGA claims through his failure to oppose the motion as to those claims and contents of his Trial Plan. The Court encourages the parties to conserve future resources by formally agreeing as to Arana's claims that remain, and those that may now be dismissed. **** NOTICE: Given the circumstances presented by the ongoing COVID-19 pandemic, this hearing will be conducted remotely via Zoom [which includes telephonic and teleconferencing options]. The Department 41 Zoom link is: https://saccourt.zoom.us/my/dept41a. The Zoom ID is: 349 373 7884. The Zoom number is (888) 475-4499. Any party desiring an official record shall make arrangements for reporting services not later than 4:30 p.m. on the day before the hearing with the clerk of the department where the matter will be heard and deposit fees with the clerk prior to the hearing, but not later than the conclusion of the court session. DATE: 10/16/2020 MINUTE ORDER Page 5 DEPT: 41 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS The fee is $30.00 for civil proceedings lasting under one hour and is $239.00 per half day. Local Rule 9.06(B) and Government Code 68086. COURT RULING: The matter was argued and submitted. The Court takes this matter under submission. DATE: 10/16/2020 MINUTE ORDER Page 6 DEPT: 41 Calendar No.