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1 BLUIMENTHAL NORDREHAUG BHOWIMIK DE BLOUW LLP 3 ^ii S ES
Norman B. Blumenthal (State Bar #068687) onm M«r. «
2 Kyle R. Nordrehaug (State Bar #205975) "AR 26 PH 2:1+ 9
Aparaiit Bhowmik (State Bar #248066)
3 Victoria B. Rivapalacio (State Bar #275115) " ^ ^ S ^ W ^ F CALI^QWI^
2255 Calle Clara ^ m ^ k ^ ^^OriAiimj!}
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
6 Attomeys for Plaintiff
7
8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN AND FOR THE COUNTY OF SACRAMENTO
12
13 ANDREA SPEARS- an individual, on Case No. 34-2017-00210560-CU-OE-GDS
14
behalf of herself and on behalf of all
persons similarly situated, CLASS ACTION
15
16
Plaintiff, PLAINTIFF ANDREA SPEARS'S
OPPOSITION TO DEFENDANT'S
17 vs. MOTION TO SEQUENCE DISCOVERY;
DECLARATION OF VICTORIA B.
18 HEALTH NET OF CALIFORNIA, RIVAPALACIO IN SUPPORT
INC., a Califomia Corporation; and
19 Does 1 through 50, Inclusive, Telephone Appearance
20 Defendants. Hearing Date: April 9, 2018
Hearing Time: 9:00 a.m.
21 Judge: Hon. Christopher E. Krueger
TOMAS R. ARANA, on behalfof Dept.: 54
22 himself, all others similarly situated.
Action Filed: April 5, 2017
23 Plaintiff,
24 vs.
25 HEALTH NET OF CALIFORNIA,
INC., a Califomia corporation; and
26 DOES 1 through 50, inclusive.
27 Defendants.
28
PLAMTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
CASE No. 34-2017-00210560
I TABLE OF CONTENTS
2
3 I. INTRODUCTION 1
4 II. STATEMENT OF FACTS 3
5 A. Defendant Sought to Prevent this Discovery Through Delay Tactics 3
6 1. Plaintiffs First Set of Motions to Compel 4
7 2. Plaintiff s Second Set of Motions to Compel 5
8 B. Defendant Unfairly Used the At-lssue Discovery in Its Motion for Summary
9 Adjudication 5
10 C. Defendant's Failed to Meet and Confer Before Filing This Motion to Sequence 5
III. ARGUMENT 6
12 A. Defendant's Re-Filed Motion to Sequence Discovery Is Unacceptable Forum Shopping. 6
13 B. The Discovery At Issue Here Is Relevant and Timely 7
14 1. Time and Payroll Records are Proper Evidence for Class Certification and
15 Defendant's Motion for Summary Adjudication 7
16 2. Wage Statements are Proper Evidence for Class Certification 11
17 3. The Identification of Supervisors is Proper Evidence for Class Certification . . . 11
18 4. Numerical Data is Proper Evidence for Class Certification 12
19 C. Class Certification Issues Inevitably Overlap With Merits Issues 13
20 D. PAGA Discovery Should Not Be Bifurcated 14
21 IV. CONCLUSION 15
22
23
24
25
26
27
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
CASE No. 34-2017-00210560
1 T A B L E OF AUTHORITIES
2
3 Cases:
4 ABM fndus. Overtime Cases,
2017 Cal. App. LEXIS 1165 (Ct. App. Dec. 11, 2017) 2, 8, 9
5
Alberts v. Aurora Behavioral Health Care,
6 241 Cal. App. 4th 388 (2015) 2,9, 13
7 Brinker Rest Corp. v. Superior Court,
53 Cal. 4th 1004(2012) 13, 14
8
Chavez v. Petrissans,
9 2008 U.S. Dist. LEXIS 111596 (2008) 11
10 Dobrosky V. Arthur f . Gallagher Serv. Co., LLC,
2014 U.S. Dist. LEXIS 106345 (CD. Cal. July 30, 2014) 13, 14
11
Duranv. U.S. Bank Nat'l Ass'n,
12 59 Cal. 4th 1 (2014) 8,12,13
13 (jOfdof^ V Asfotck Ivic
No. EDCV 17-6225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sep. 29, 2017) ..11
14
Johnson v. Ford Motor Co.,
15 35 Cal.4th 1191 (2005) 12
16 Koval V. Pacific Bell Telephone Co.,
232 Cal. App. 4th 1050 (2014) 8
17
Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP,
18 183 Cal. App. 4th 238 (2010) 10
19 Mies V. Sephora U.S.A., Inc.,
234 Cal. App. 4th 967 (2015) 9
20
Orozco V. ///. Tool Works Inc.,
21 No. 2:14-cv-2l 13-MCE-EFB, 2016 U.S. Dist. LEXIS 48483 (E.D. Cal. Apr. 11, 2016) 2
22 Orozco v. III. Tool Works, Inc.,
No. 2:14-CV-2113-MCE-EFB, 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sep. 20, 2016) 11
23
People V. Crittendon,
24 9 Cal. 4th 83 (1994) 10
25 Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338(2011) 14
26
Williams v. Superior Court,
27 3 Cal. 5th 531 (2017) 12,14,15
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
CASE No. 34-2017-00210560
2 Other Authority, Statutes, Rules, and Regulations:
3 Califomia Labor Code § 226
4 Califomia Labor Code § 2699.3(a)(1) 14
5 Cal. Code Civ. Proc. § 2030.090 6
6 Cal. Code Civ. Proc. § 2030.090(a) 6
7 Cal. Code Civ. Proc. § 2031.060 6
8 Cal. Code Civ. Proc. § 2031.060(a) 6
9 Cal. Code Civ. Proc. § 2023.010 7
10
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
CASE No. 34-2017-00210560
1 I. INTRODUCTION
2 On March 9,2018, the Court denied this same motion to sequence discovery brought by Defendant
3 Health Net of California, Inc. ("Defendanf), stating that "the issues of burden, privacy,
4 relevance/necessity, and timing are all much better addressed and analyzed in detailed discovery
5 motions (motions to compel, motions for protective order) than by a broad stay on virtually all
6 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence,
7 ROA #132 ("Order"), p. 2 (March 9, 2018).' The Court denied Defendant's motion "without prejudice to
8 seek similar specific relief by appropriate discovery motion directed to the law and motion department,
9 including motions for protective orders." Id.
10 This Order was issued by the Honorable Alan G. Perkins in Department 35. Id. Defendant violated
11 the Order by failing to file the appropriate motion, such as a motion for protective order or opposition to
12 Plaintiffs motions to compel. Defendant, instead, continues to seek "a broad stay on virtually all discovery
13 without the detailed substance necessary to assess such issues" despite the Court's clear admonition against
14 such a filing. Id. Defendant is, therefore, forum shopping a more favorable outcome and hoping this Court
15 will not notice the violation of Judge Perkins's Order.
16 Because Defendant's motion is made in contravention of the Court's Order, Defendant's motion
17 should be stricken. To the extent the Court construes Defendant's motion as an improperly named motion
18 for protective orders, the result should be the same because Defendant did not comply with the meet and
19 confer requirement of a properly made motion for protective order.
20 As to the substance of Defendant's request, Plaintiff Andrea Spears ("Plaintiff and "Plaintiff
21 Spears") brings this case on behalf of a class of former and current non-exempt, hourly employees of
22 Defendant Health Net of Califomia, Inc. ("Defendanf) ("Class Members"), asserting that Defendant failed
23 to properly compensate Plaintiff and the Class Members all time worked, failed to properly calculate the
24 regular rates of Plaintiff and Class Members, failed to provide compliant meal and rest periods or provide
25 the corresponding premiums, and failed to provide Plaintiff and Class Members with accurate itemized wage
26 statements. For this action to be certified as a class action. Plaintiff must present substantial evidence in
27
28
' Emphasis added unless otherwise indicated.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
I CASE No. 34-2017-00210560
1 support of class certification. The discovery Defendant seeks to stay, here, is all relevant to a certification
2 decision and, as this discovery would be unaffected by a decision to sequence "certification discovery"
3 before "merits discovery," Plaintiff has never agreed to postpone its production after a decision regarding
4. sequencing. In fact. Defendant's motion erroneously asks the Court to deny Plaintiff discovery that Plaintiff
5 has a due process right to receive for purposes of class certification.
6 Defendant's ignoring Plaintiffs meet and confer where Plaintiff explained that seeking this
7. discovery is reasonable because Plaintiffs counsel has sought and obtained the same broad classwide
8 discovery in other wage and hour class cases. See, e.g., Orozco v. III. Tool Works Inc., 2016 U.S. Dist.
9 LEXIS 48483 (E.D. Cal. Apr. 11, 2016) (compelling all time records and all payroll records, after which,
10 Plaintiff successfully certified a meal break and wage statement class). Defendant's effort to stay this
11 discovery is not out of burden, but out of fear that the requested discovery will lead to class certification.
12 Plaintiffs counsel's experience is in line with recent Califomia case law. The Court of Appeal in
13 Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388, 416 (2015), relied on such data to
14 reverse the denial of certification of a meal break claim. The court cited evidence that "a small
15 fraction of missed meal period premiums were paid relative to the total number of missed meal
16 breaks" as part of the plaintifrs showing for purposes of class certification that the defendant's
17 "classwide practices violate California law." Id. at 417.^ Defendant, therefore, mistakenly claims that
18 such evidence sought here by Plaintiff is merits-based and not relevant to certification.
19 ¥o\\ovJingAlberts,t\\eCo\xno{ AppQ&Wn ABMIndus. Overtime Cases,20\l Cal. App.LEXlS 1165
20 (Ct. App. Dec. 11, 2017), again reversed a denial of class certification in reliance on the kind of classwide
21 time and payroll data that Defendant's motion, if granted, would be denied to Plaintiff There, in reasoning
22 that "the legality of ABM's uniform payroll policy... is a legal question that can be determined by
23 reference to facts common to all class members," the Court relied heavily on the plaintifTs showing
24 that, based on 1,836,083 time entries of the putative class members, 1,141,903 shifts occurred without
25 a meal break occurring in the first five hours. Id. at 310. The Court of Appeal thus clearly held that such
26 evidence is relevant to certification. Indeed, the reversal of the denial of certification was based on the trial
27
28
^ Emphasis added, unless otherwise indicated.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
2 CASE No. 34-2017-00210560
1 court's erroneous exclusion of this data. Thus, here, Defendant has no basis to ask this Court to repeat the
2 same error. Defendant is attempting to deny Plaintiff access to such discovery not out of any legitimate
3 objection, but in order to prejudice Plaintiffs ability to demonstrate that class certification is appropriate
4 with evidence of how the allegedly illegal effects of Defendant's policies affected the class members as
5 evidenced by missed meal breaks shown in time records and miscalculated overtime wages shown in payroll
6 records.
7 The Court should further deny Defendant's motion as to the Class Members' itemized wage
8 statements, the identity of the supervisors and their contact information, the identity of a narrowed group
9 of Class Members, and the numerical data Plaintiff has requested, such as number of meal and rest period
10 premiums paid, because this discovery, like the time and wage records, is discovery that is relevant to
11 certification. Defendant's motion, here, is a disguised attempt to give itself an unfair advantage at the
12 certification stage through denying Plaintiff access to proper certification discovery.
13 For these reasons, explained more fully below. Plaintiff respectfully requests that Defendant's
14 motion be struck as procedurally improper or, to the extent the Court considers the substance of Defendant's
15 request, denied.
16
17 IL STATEMENT OF FACTS
18 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a
19 cause of action pursuant to PAGA on June 29,2017. The Parties filed a stipulation to consolidate the Spears
20 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered
21 consolidated on October 11, 2017.
22 A. Defendant Sought to Prevent this Discovery Through Delay Tactics
23 Plaintiff served her first set of discovery requests on July 25, 2017. (Declaration of Victoria B.
24 Rivapalacio ("R. Decl.") T| 3.) After Plaintiff granted Defendant's request for an extension, Defendant served
25 its initial responses on September 12,2017, and produced its first set of documents on September 14,2017.
26 (R. Decl., E2csj_&2.) On September 21 and 22,2017, Plaintiff sent correspondence to Defendant detailing
27 the deficiencies in Defendant's responses. (Rivapalacio Decl., Exs. 3 & A.^ Plaintiff followed up regularly
28 over the following month. (R. Decl., Ex. 5.) Forthe most part, in response to Plaintiffs requests, Defendant
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
3 CASE No. 34-2017-00210560
1 offered silence. (Id.) When Defendant did respond, it was to kick the can down the road. For example, in
2 response to Plaintiffs request on September 28, 2017, Defendant stated it would get in touch "next week."
3 (Id.) In response to Plaintiffs request on October 4,2017, Defendant stated it would respond "shortly." (Id.)
4 In response to Plaintiffs request on October 10,2017, Defendant stated it would respond "in the next week
5 or so." (Id.) Defendant onlyfinallymade itself available for a telephonic meet and confer on October
6 24,2017, over a month after Plaintifffirstrequested to meet and confer regarding the discovery. (R.
7 Decl., Ex. 6.)
8 During the telephonic meet and confer on October 24, 2017, Defendant maintained two different
9 positions in regard to the various deficient responses: 1) Defendant agreed that the responses were deficient
10 and promised to remedy the deficiencies through supplemental responses, but would "not provide a timeline
11 as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought was "merits"
12 discovery and stated it would not produce it without Court intervention. (Id.) Notably, Defendant did assert
13 that it would willingly produce even that discovery it considered "merits" if the Court declined to sequence
14 discovery. (R. Decl. ^ 6.)
15 The Parties exchanged dozens of email correspondence and conferred telephonically but, over a
16 month later, Defendant had still yet to provide supplemental responses, produce documents, or provide a
17 date certain as to the anticipated production. (R. Decl. 1 7.) Further, in that interim, no further ground was
18 gained in regard to the discovery that was undeniably in dispute, that Defendant outright refused to produce
19 without a Court order. (Id.)
20 1. Plaintiffs First Set of Motions to Compel
21 Plaintiff was forced by Defendant's delays to file the first set of motions to compel, which she did
22 on December I , 2017. (R. Decl. | 7.) Defendant then served the supplemental responses, on December 6
23 and 7, 2017, six (6) weeks after the initial meet and confer and only after Plaintiff was forced to incur the
24 fees and costs associated with the discovery motions. (Id.)
25 At Defendant's request and roughly one week after Defendant provided its supplemental responses,
26 Plaintiff withdrew the first set of motions to compel on December 15, 2017. (R. Decl. ^ 8.) Although a
27 significant number of discovery requests remained at issue after the supplemental responses and production
28 of documents were provided - the same requests that were at issue in the second set of motions to compel
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
4 CASE No. 34-2017-00210560
1 and that remain in dispute - Plaintiff withdrew the motions for efficiency purposes, so as not to waste the
2 Parties' orthe Court's resources organizing a motion as to which discovery still required a court order. (Id.)
3 Plaintiff sought to refine the motions so that they would address only the discovery that remained
outstanding and, also, so Plaintiff could attempt to avoid Defendant's continued dishonest claim that
5 Plaintiff had not exhausted meet and confer efforts. (Id.)
6 Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly and
7 exhaustively meet and confer, Plaintiff sought to meet and confer with Defendant again after withdrawing,
8 per Defendant's request, the first set of motions to compel. (R. Decl., Ex. 9.) The Parties met and conferred
9 telephonically on December 20,2017, addressing how Defendant's production altered the dispute detailed
10 in the motions and further exhausting any remaining issues. (R. Decl., Ex. 10.)
11 2. Plaintiffs Second Set of Motions to Compel
12 Plaintiff filed the second set of motions to compel on January 17, 2018, pared down to only those
13 discovery requests that Defendant had maintained from its initial responses that it would not provide without
14 court intervention. (R. Decl. t 10.) Defendant filed its first motion to sequence discovery on January 23,
15 2018, set for hearing on March 9, 2018 in Department 35. (R. Decl. H 1 !•) After reviewing Defendant's
16 motion to sequence, researching its positions, and, again, at Defendant's request. Plaintiff withdrew the
17 second set of motions to compel. (R. Decl. 11-12.)
18 B. Defendant Unfairly Used the At-Issue Discovery in Its Motion for Summary
Adjudication
19
On February 5, 2018, six (6) days after Plaintiff withdrew her second set of motions to compel
20
discovery. Defendant served its MSA in which Defendant cites the discovery of class member payroll
21
Defendant so vehemently claimed was inappropriate to share with Plaintiff. (R. Decl. 113.) Defendant relied
22
on this data in its MSA to claim that "the total cash benefits provided to Participants who waived dental
23
and/or medical coverage represented a very small percentage of HNCA's contributions provided under the
24
Plan for the elected dental and/or medical coverage: 1.4% in 2013,1.3% in 2014; 0.9% in 2015; and 0.9%
25
in2016." Def Memo. ISO MSA, ROA #101, pp. 3-4.
26
C, Defendant Failed to Meet and Confer Before Filing This Motion to Sequence
27
Defendant's first motion to sequence discovery was denied without prejudice on March 9,2018. (R.
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
5 CASE No. 34-2017-00210560
1 Decl. 1 14.) Plaintiff immediately sought to meet and confer regarding the effect of the order on the
2 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues. (R.
3 Decl., Ex. 12.) Pursuant to the Order on Defendant's Motion to Sequence, Plaintiff was incorrect to have
4 acquiesced to Defendant's requests by withdrawing the then-pending motions to compel, because the "issues
5 of burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed
6 discovery motions (motions to compel, motions for protective order) than by a broad stay on virtually all
7 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, ROA
8 #132, p. 2.
9 Defendant declined Plaintiffs request to meet and confer regarding Plaintiffs then-upcoming
10 motions to compel further responses.^ (R. Decl., Ex. 12.1 Instead, and without even a request fo meet and
11 confer. Defendant re-filed its motion to sequence, to be heard this time in Department 54, contravening the
12 Court's Order that the dispute is ripe for motions to compel or motions for a protective order rather than a
13 request for a blanket stay on swaths of discovery. (R. Decl. 1 16.)
14
15 III. ARGUMENT
16 A. Defendant's Re-Filed Motion to Sequence Discovery Is Unacceptable Forum Shopping
17 The Court's Order denying Defendant's first-filed motion to sequence stated clearly that the "issues
18 of burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed
19 discovery motions (motions to compel, motions for protective order) than by a broad stay on virtually all
20 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, ROA
21 # 132, p. 2. Defendant's motion was "denied without prejudice to seek similar specific relief by appropriate
22 discovery motion directed to the law and motion department, including motions for protective orders."
23 (Id.)
24 Defendant's motion is not a motion for protective orders as such a motion must comply with either
25 Cal. Code Civ. Proc. §2030.090 or §2031.060, both of which require that such a motion "be accompanied
26 by a meet and confer declaration." Cal. Code Civ. Proc. §2030.090(a); §2031.060(a). Defendant did not
27
2g ^ Plaintiff filed a third set of motion to compel further responses to discovery on March 20, 2018, set
for hearing on April 16, 2018 in Department 54. (R. Decl. 116.)
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
6 CASE No. 34-2017-00210560
offer such a declaration and, indeed, cannot. Defendant did not request to meet and confer with Plaintiff
2 regarding its motion prior to its filing in this department and, in fact, rebuffed Plaintiffs requests to meet
3 and confer regarding her motions to compel regarding the same discovery. (R. Decl., Ex. 12.)
4 In short. Defendant's motion to sequence is not an "appropriate discovery motion" and is, therefore,
5 an inappropriate attempt at forum-shopping a more favorable decision on its request for a blanket stay of
6 discovery.
7 To the extent the Court is inclined to consider Defendant's motion to sequence discovery as an
8 improperly named motion for protective orders and, thus, compliant with Judge Perkins's Order,
9 Defendant's motion must still be struck as procedurally improper. Defendant not only failed to meet and
10 confer prior to its filing but refused Plaintiffs attempt to meet and confer regarding the at-issue discovery.''
11 Such a failure is a misuse ofthe discovery process, pursuant to Cal. Code Civ. Proc. § 2023.010(1): "Misuses
12 of the discovery process include... failing to confer in person, by telephone, or by letter with an opposing
13 party or attomey in a reasonable and good faith attempt to resolve informally any dispute conceming
14 discovery, if the section goveming a particular discovery motion requires the filing of a declaration stating
15 facts showing that an attempt at informal resolution has been made." Because a motion for protective orders
16 does, in fact, require such a declaration. Defendant's failure here is a misuse of the discovery process subject
17 to sanctions.
18 B. The Discovery At Issue Here Is Relevant and Timely
19 1. Time and Payroll Records are Proper Evidence for Class Certification and
Defendant's Motion for Summary Adjudication
20
Defendant has demonstrated in its MSA both the relevance of the payroll records and the lack of
21
burden in their production. Defendant cited to this very discovery when Defendant stated that "the total cash
22
benefits provided to Participants who waived dental and/or medical coverage represented a very small
23
percentage of HNCA's contributions provided under the Plan for the elected dental and/or medical coverage:
24
1.4% in 2013, 1.3% in 2014; 0.9% in 2015; and 0.9% in2016." Def Memo. ISO MSA, ROA #101, pp. 3-4.
25
26 .,
Notably, Plaintiffs attempt to meet and confer prior to refiling the motions to compel - the motions
2^ deemed a proper mechanism for resolving this ongoing discovery dispute - met by Defendant's delayed
2g but ultimate refusal allowed Defendant to re-file its motion to sequence discovery prior to Plaintiffs
filing of those motions to compel. (R. Decl. 1114-16.)
PLAINTIFF^S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
7 ' CASE No. 34-2017-00210560
This classwide payroll data that Defendant seeks to withhold from Plaintiff is the same information
2 Defendant unilaterally gathered and used for Defendant's own benefit in filing the MSA. Because Plaintiff
3 agreed to Defendant's proposal to withdraw the prior pending motions to compel. Plaintiff now is
4 disadvantaged by not having this data to review and refute Defendant's claims.
5 As to certification, time and payroll records are regularly analyzed and referred to by Califomia
6 courts when determining the applicability of the class certification requirements, including commonality,
7 ascertainability, manageability, and typicality.
8 In ABM Indus. Overtime Cases, the Court of Appeal found that predominance could be
9 established through reference to the class members' time records and exception reports that were
10 provided with the plaintiffs' class certification motion:
11 [T]he legality of ABM's uniform payroll policy-which assumes each employee works his
or her scheduled shift and takes any legally required meal breaks absent some type of
12 exception report-is a legal question that can be determined by reference to facts common to
all class members. Certainly, the evidence provided by Woolfson that a mere 5,625 ofthe
13 1,836,083 time entries for ABM Workers he investigated (0.3 percent) contained
adjustments to pay calls into question the efficacy of ABM's asserted 'timesheet
14 maintenance' procedure, as does the evidence presented by plaintiffs that ABM does not
generate exception reports for missed meal periods.
15 Id. at *57-58 (emphasis added). It is notable that the nearly two million time entries analyzed were useful,
16 not excessive or overly burdensome for the court to evaluate. See id. Indeed, "it was error for the trial court
17 to completely disregard plaintiffs' proffered expert evidence of common practice." Id. at *33. This evidence
18 was made possible through the provision to the plaintiffs ofthe putative class members' time and
19 payroll records.
20 Even when the party proposing a class asserts "the employer consistently imposed a uniform policy
21 or de facto practice on class members, the party must still demonstrate that the illegal effects of this conduct
22 can be proven efficiently and manageably within a class setting." Duran v. U.S. Bank Nat'l Ass'n, 59 Cal.
23 4th I , 29 (2014); see Koval v. Pacific Bell Telephone Co., 232 Cal.App.4th 1050, 1060 (20l4)("existence
24 of a uniform policy does not limit a trial court's inquiry into whether class action treatment is appropriate").
25 "To the contrary, 'courts have routinely concluded that an individualized inquiry is necessary even where
26 the alleged misclassification involves application of a uniform policy. " Mies v. Sephora U.S.A., Inc., 234
27 Cal. App. 4th 967,984 (2015). For this reason, the court in^5Mconsidered classwide time and payroll data
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
8 CASE No. 34-2017-00210560
1 even though the review involved the production of over 1 million lines of data.
2 The California Court of Appeal further referenced defendant ABM Industries' time and
3 payroll records of the putative class members for purposes of ascertainability:
4 [T]he subclass of ABM Workers who 'suffered an automatic deduction of a half-hour
although the employee actually worked through the deducted meal period' can be identified
5 through ABM's timekeeping and payroll records showing numerous instances where a
meal deduction was made for a shift without a corresponding time entry indicating that a
6 meal period was taken. The subclass of ABM Workers who were not paid premium meal
period wages when they worked shifts of a particular length without a recorded meal period
7 can similarly be ascertained through reference to the same records, reviewed to
determine whether any required premium wages were paid where no meal period was
8 recorded. The Unpaid Split-Shift Premium Subclass... can be identified by examining
ABM's timekeeping and payroll records to determine which employees worked two or
9 more shifts in the same day separated by more than an hour, but were not paid premium
wages related to the split shift(s). Finally, members of the Reimbursement Subclass... can
10 be identified by searching ABM payroll records to determine which employees worked
at multiple jobsites separated by a certain baseline number of miles during the same
11 workday, but did not receive reimbursement for travel.
12 Id at *49-50.
13 Defendant has no basis to move for the withholding of this data when the Califomia Court of Appeal
14 just held that the exclusion of this same evidence is reversible error. Defendant is attempting to deny
15 Plaintiff access to such discovery not out of any legitimate objection, but in order to prejudice Plaintiffs
16 ability to demonstrate that class certification is appropriate with evidence of how the allegedly illegal effects
17 of Defendant's policies affected the class members as evidenced by missed meal breaks shown in time
18 records and miscalculated overtime wages shown in payroll records.
19 As another example, in Alberts, the Califomia Court of Appeal overtumed the trial court's denial
20 of class certification in part because the trial court did not properly consider the plaintiffs' statistical
21 evidence offered, citing instead that the plaintiffs had provided "only anecdotal evidence that employees
22 were denied overtime or forced to work off the clock." Id. at 414. The Court of Appeal cited the plaintiffs'
23 expert's statistical analysis "ofthe Hospital's scheduling and payroll records [that] demonstrated that 'nearly
24 one out of every five recorded meal breaks was either added or edited by a supervisor.'" Id. at 416. The
25 court also referenced the analysis in order to conclude that
26 (I) A small fraction of missed meal premiums were paid relative to the total number
of missed meal breaks (e.g., although Hospital records show 67 late, short or completely
27 missed meal breaks per 100 shifts, only 3.5 missed meal or rest premiums were paid per 100
shifts); (2) Almost half (44.6 percent) of the meal breaks recorded were less than 30
28 minutes long; (3) Over one-third (34.3 percent) of meal breaks recorded were taken
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
9 CASE No. 34-2017-00210560
1 more than six hours after the start of a shift; (4) Most (over 80 percent) of an employee's
first recorded meal breaks were either less than 30 minutes long or started more than six
2 hours after the start of his or her shift; (5) The majority (87.4 percent) of all work periods
longer than 10 hours did not reflect that a second meal break was taken; (6) Among work
3 periods in excess of 10 hours that did have a second meal break recorded, roughly one-third
(33.6 percent) of those breaks were under 30 minutes and three-fourths (73 percent) were
4 taken more than 11 hours after a shift started. Fewer than I percent of second meal breaks
examined were both 30 minutes long and timely provided; (7) There was a widespread
5 practice by which management modified timekeeping records: 24.5 percent of the first
and 46 percent of the second recorded meal breaks were "round punch meal breaks" (added
6 or edited by supervisors), and most (84 percent) of all sampled class members' time records
showed "round punch work periods"; [and] (8) On days on which no break relief was
7 reflected in the Hospital's daily schedules, timekeeping records still reflected an average of
2.2 meal breaks per day (suggesting that the timekeeping data overreports the number of
8 meal breaks).
9 M a t 417-418.
10 Based on this evidence that Defendant is seeking to withhold here as not related to certification, the
11 appellate court reversed the denial of certification and held that "plaintiffs' evidence, including [the
12 expert's] analysis, constitutes persuasive common proof of the Hospital's uniform policies and
13 practices resulting in a classwide denial of lawfully compliant breaks to nursing staff." Id at 418.
14 Notably, the appellate court did not dismiss the analysis as merits evidence, inapplicable to a motion for
15 class certification. Instead, the classwide time and payroll records, analyzed by an expert, demonstrated
16 the suitability of certification as to the meal and rest period claims, as well as the overtime claim. The error
17 of the trial court was in "refusing to consider statistical evidence" that was compiled through the
18 plaintiffs' access to the putative class members' time and payroll data. Id. at 412.
19 The poverty of Defendant's argument is exposed by Defendant's utter disregard of this binding
20 Califomia law. Decisions of federal courts, other than the United States Supreme Court, are not binding on
21 state courts, regardless of whether they are interpreting federal or state law. People v. Crittendon, 9 Cal.4th
22 83,120, fn. 3 (1994); Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, 183 Cal.App.4th 238,251,
23 fn. 6 (2010). Moreover, the federal cases Defendant cites to deny discovery that are in conflict with
24 Califomia State law are outnumbered by federal court decisions that have adopted the Califomia standard
25 of providing plaintiffs with real evidence of time and payroll records for purposes of supporting a class
26 certification motion. E.g, Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-l 0 ("The requested
27 information is relevant and discoverable for purposes of class certification since the documents
28 provide information regarding the numbers of hours worked and the amount employees were
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
10 CASE No. 34-2017-00210560
1 paid.")(emphasis added); Gordon v. Aerotek, //7c.,No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS
2 161766, at * 15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time sheets
3 and wage statements is appropriate and likely to assist in establishing commonality of the failure to pay
4 overtime wages."); Orozco v. III. Tool Works, Inc., No. 2:l4-cv-2113-MCE-EFB, 2016 U.S. Dist. LEXIS
5 128315, at * 11 (E.D. Cal. Sep. 20,2016) (Court ordered that "defendant shall produce the time records (i.e.,
6 handwritten time sheets) of the class members"). In short, records that show time and wages are relevant
7 documents in Califomia wage and hour class action litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10.
8 Defendant's request to sequence such discovery until after a decision on class certification seeks an
9 advantage against Plaintiffs motion for class certification by preventing Plaintiff from presenting to the
10 Court the discovery necessary to make a proper certification analysis.
11 2. Wage Statements are Proper Evidence for Class Certification
12 Plaintiff seeks the itemized wage statements of the Class Members because Plaintiff alleges that
13 Defendant failed to provide accurate itemized wage statements pursuant to Cal. Lab. Code § 226. There is
14 no better evidence than the wage statements themselves. Further, this evidence is necessary as to the entire
15 class to demonstrate they are uniform, which will refute Defendant's anticipate assertion that individual
16 issues predominate.
17 It is based on their relevance to certification that wage statements are regularly compelled prior to
18 certification in wage and hour cases such as this one. For example, Plaintiffs counsel obtained a similar
19 result in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sep. 29,2017), where the court
20 compelled "discovery of putative class member time sheets and wage statements [as] appropriate and likely
21 to assist in establishing commonality of the failure to pay overtime wages.." Id. at *15. Clearly Plaintiffs
22 counsel was reasonable in trying to do the same here.
23 3. The Identification of Supervisors is Proper Evidence for Class Certification
24 The supervisors of the Class Members are witnesses to the allegations in the complaint. Supervisors
25 are held responsible for implementing and enforcing a defendant employer's policies, especially in regard
26 to the provision of meal and rest periods. Just like class members, the supervisors are "potential percipient
27 witnesses to alleged illegalities, and it is on that basis their contact information becomes relevant." Williams
28 V. Superior Court, 3 Cal. 5th 531, 547 (2017).
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
11 CASE No. 34-2017-00210560
1 In a wage and hour class action alleging that the putative class members were misclassified as
2 exempt, as here by Plaintiff Arana, the supervisors and their role in managing the class members' day-to-day
3 job tasks is highly relevant to determining commonality and typicality for certification. Plaintiff must
4 demonstrate and the Court must evaluate the issue as to whether Class Members used their independent
5 judgment and discretion in their job performance and whether that issue is common to the class.
6 Plaintiff anticipates that Defendant will assert that individual issues predominate: that any denial of
7 meal or rest periods for Class Members or any overly managed Class Members are the result of independent
8 supervisors and not of a company policy. Therefore, the testimony a supervisor can provide may evidence
9 the universal and systemic policies of Defendant, that an expectation was understood and that the illegal
10 wage and hour practices came from above.
11 4. Numerical Data is Proper Evidence for Class Certification
12 At the class certification stage, courts must determine whether trial will be manageable as a class
13 action. "In wage and hour cases where a party seeks class certification based on allegations that the
14 employer consistently imposed a uniform policy or de facto practice on class members, the party must still
15 demonstrate that the illegal effects of this conduct can be proven efficiently and manageably within a class
16 setting." Duran, 59 Cal. 4th at 29.
17 At trial, "once the issues common to the class have been tried, and assuming some individual issues
18 remain, each plaintiff must still by some means prove up his or her claim, allowing the defendant an
19 opportunity to contest each individual claim on any ground not resolved in the trial of common issues." Id.
20 at 29 (citing Johnson v. Ford Motor Co., 35 Cal.4th 1191, 1210 (2005)). Class certification remains
21 appropriate so long as the individual issues may be effectively managed. Id. Thus, "[i]n considering
22 whether a class action is a superior device for resolving a controversy, the manageability of individual issues
23 is just as important as the existence of common questions uniting the proposed class." Id. at 29.
24 Because demonstrating manageability requires a showing that damages were incurred and that
25 damages can be calculated classwide, Plaintiff seeks the data to make this showing so the Court may make
26 a proper analysis of the suitability of certification. The numerical data Plaintiffs have requested and that
27 Defendant seeks to withhold-the number of class members who received overtime compensation and cash
28 payments in lieu of health benefits during the same pay period, the number of meal period premiums paid,
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
12 CASE No. 34-2017-00210560
1 the total dollar amount of meal period premiums paid, etc.-is that data the Court will use to ensure that
2 individual issues may be effectively managed at trial.
3 The data Defendant requests to withhold until after certification is readily available when it benefits
4 a defendant to produce it. For example, for removal purposes or for mediation, this information is produced
5 quickly and without objection. Regardless, Defendant's assertions as to burden, here, are outweighed by the
6 usefulness of the information: "If the court makes a reasoned, informed decision about manageability at the
7 certification stage, the litigants can plan accordingly and the court will have less need to intervene later to
8 control the proceedings." Duran, 59 Cal. 4th at 29.
9 C. Class Certification Issues Inevitably Overlap With Merits Issues
10 Sequencing discovery is problematic in wage and hour class actions because class certification
11 requirements are inherently and unavoidably enmeshed with issues affecting the merits of the case. Brinker
12 Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 (2012). In fact, discovery that is often classified as
13 "merits discovery" is also the evidence that common questions predominate, that the class representative's
14 claims are typical of those of the class, that the action will be manageable at trial as a class action, and that
15 the class members are ascertainable, all of which are requirements for certification.
16 For example, the resolution of the predominance question necessary for class certification-whether
17 the elements necessary to establish liability are susceptible to common proof-"will often depend upon
18 resolution of issues closely tied to the merits." Brinker, 53 Cal. 4th at 1023. Uniform policies "bear heavily
19 on questions of predominance and superiority... [because] such centralized rules, to the extent they reflect
20 the realities of the workplace, suggest a uniformity among employees that is susceptible to common
21 proof" Dobrosky v. Arthur J Gallagher Serv. Co., LLC, 2014 U.S. Dist. LEXIS 106345, at *29 (CD. Cal.
22 July 30, 2014). The best evidence of the "realities of the workplace" are the actual records of work
23 performed, such as time records and time adjustment records. See Alberts, 241 Cal. App. 4th at 412
24 (overtuming the trial court's denial of certification based, in part, in the court's failure to consider the
25 expert's analysis of time and payroll data: "[The expert's] declaration was offered to show that the
26 Hospital's timekeeping and payroll data confirmed plaintiffs' theory that class-wide policies led to the
27 denial of meal breaks for putative class members.").
28 Typicality, another certification element, "is whether other members have the same or similar injury,
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY
13 CASE No. 34-2017-00210560
1 whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class
2 members have been injured by the same course of conduct. Thus, typicality is satisfied ifthe plaintiffs
3 claims are reasonably co-extensive with those of absent class members." Dobrosky, 2014 U.S. Dist. LEXIS
4 106345, at *24. As such, typicality in a case asserting meal period violations, a failure to pay meal and rest
5 period premiums, and the miscalculation of the Class Members' regular rate is evidenced most clearly
6 through time and payroll records, including time adjustment records and other mechanisms for recording
7 time worked, such as logging in and out of computers. This is precisely the evidence Defendant seeks to
8 withhold here, under the pretense of sequencing "merits" discovery until after certification is decided.
9 There is no bright line between merits discovery and certification discovery. See Brinker, 53 Cal.
10 4th at 1023 ("Analysis of a class certification's propriety '[fjrequently ... will entail some overlap with the
11 merits of the plaintiffs underlying claim. That cannot be helped."')(citing Wal-Mart Stores, Inc. v. Dukes,
12 564 U.S. 338, 351 (2011)). For this reason, Defendant's motion to sequence discovery should be denied.
13 D. PAGA Discovery Should Not Be Bifurcated
14 Plaintiff asserts a claim pursuant to PAGA in this case and PAGA does not require certification. The
15 steps necessary to pursue and claim pursuant to PAGA is to "give written notice by online filing with the
16 Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions
17 of [the] code alleged to have been vio
Preview
1 BLUIMENTHAL NORDREHAUG BHOWIMIK DE BLOUW LLP 3 ^ii S ES Norman B. Blumenthal (State Bar #068687) onm M«r. « 2 Kyle R. Nordrehaug (State Bar #205975) "AR 26 PH 2:1+ 9 Aparaiit Bhowmik (State Bar #248066) 3 Victoria B. Rivapalacio (State Bar #275115) " ^ ^ S ^ W ^ F CALI^QWI^ 2255 Calle Clara ^ m ^ k ^ ^^OriAiimj!} 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 6 Attomeys for Plaintiff 7 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN AND FOR THE COUNTY OF SACRAMENTO 12 13 ANDREA SPEARS- an individual, on Case No. 34-2017-00210560-CU-OE-GDS 14 behalf of herself and on behalf of all persons similarly situated, CLASS ACTION 15 16 Plaintiff, PLAINTIFF ANDREA SPEARS'S OPPOSITION TO DEFENDANT'S 17 vs. MOTION TO SEQUENCE DISCOVERY; DECLARATION OF VICTORIA B. 18 HEALTH NET OF CALIFORNIA, RIVAPALACIO IN SUPPORT INC., a Califomia Corporation; and 19 Does 1 through 50, Inclusive, Telephone Appearance 20 Defendants. Hearing Date: April 9, 2018 Hearing Time: 9:00 a.m. 21 Judge: Hon. Christopher E. Krueger TOMAS R. ARANA, on behalfof Dept.: 54 22 himself, all others similarly situated. Action Filed: April 5, 2017 23 Plaintiff, 24 vs. 25 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and 26 DOES 1 through 50, inclusive. 27 Defendants. 28 PLAMTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY CASE No. 34-2017-00210560 I TABLE OF CONTENTS 2 3 I. INTRODUCTION 1 4 II. STATEMENT OF FACTS 3 5 A. Defendant Sought to Prevent this Discovery Through Delay Tactics 3 6 1. Plaintiffs First Set of Motions to Compel 4 7 2. Plaintiff s Second Set of Motions to Compel 5 8 B. Defendant Unfairly Used the At-lssue Discovery in Its Motion for Summary 9 Adjudication 5 10 C. Defendant's Failed to Meet and Confer Before Filing This Motion to Sequence 5 III. ARGUMENT 6 12 A. Defendant's Re-Filed Motion to Sequence Discovery Is Unacceptable Forum Shopping. 6 13 B. The Discovery At Issue Here Is Relevant and Timely 7 14 1. Time and Payroll Records are Proper Evidence for Class Certification and 15 Defendant's Motion for Summary Adjudication 7 16 2. Wage Statements are Proper Evidence for Class Certification 11 17 3. The Identification of Supervisors is Proper Evidence for Class Certification . . . 11 18 4. Numerical Data is Proper Evidence for Class Certification 12 19 C. Class Certification Issues Inevitably Overlap With Merits Issues 13 20 D. PAGA Discovery Should Not Be Bifurcated 14 21 IV. CONCLUSION 15 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY CASE No. 34-2017-00210560 1 T A B L E OF AUTHORITIES 2 3 Cases: 4 ABM fndus. Overtime Cases, 2017 Cal. App. LEXIS 1165 (Ct. App. Dec. 11, 2017) 2, 8, 9 5 Alberts v. Aurora Behavioral Health Care, 6 241 Cal. App. 4th 388 (2015) 2,9, 13 7 Brinker Rest Corp. v. Superior Court, 53 Cal. 4th 1004(2012) 13, 14 8 Chavez v. Petrissans, 9 2008 U.S. Dist. LEXIS 111596 (2008) 11 10 Dobrosky V. Arthur f . Gallagher Serv. Co., LLC, 2014 U.S. Dist. LEXIS 106345 (CD. Cal. July 30, 2014) 13, 14 11 Duranv. U.S. Bank Nat'l Ass'n, 12 59 Cal. 4th 1 (2014) 8,12,13 13 (jOfdof^ V Asfotck Ivic No. EDCV 17-6225-DOC (KKx), 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sep. 29, 2017) ..11 14 Johnson v. Ford Motor Co., 15 35 Cal.4th 1191 (2005) 12 16 Koval V. Pacific Bell Telephone Co., 232 Cal. App. 4th 1050 (2014) 8 17 Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, 18 183 Cal. App. 4th 238 (2010) 10 19 Mies V. Sephora U.S.A., Inc., 234 Cal. App. 4th 967 (2015) 9 20 Orozco V. ///. Tool Works Inc., 21 No. 2:14-cv-2l 13-MCE-EFB, 2016 U.S. Dist. LEXIS 48483 (E.D. Cal. Apr. 11, 2016) 2 22 Orozco v. III. Tool Works, Inc., No. 2:14-CV-2113-MCE-EFB, 2016 U.S. Dist. LEXIS 128315 (E.D. Cal. Sep. 20, 2016) 11 23 People V. Crittendon, 24 9 Cal. 4th 83 (1994) 10 25 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338(2011) 14 26 Williams v. Superior Court, 27 3 Cal. 5th 531 (2017) 12,14,15 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY CASE No. 34-2017-00210560 2 Other Authority, Statutes, Rules, and Regulations: 3 Califomia Labor Code § 226 4 Califomia Labor Code § 2699.3(a)(1) 14 5 Cal. Code Civ. Proc. § 2030.090 6 6 Cal. Code Civ. Proc. § 2030.090(a) 6 7 Cal. Code Civ. Proc. § 2031.060 6 8 Cal. Code Civ. Proc. § 2031.060(a) 6 9 Cal. Code Civ. Proc. § 2023.010 7 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY CASE No. 34-2017-00210560 1 I. INTRODUCTION 2 On March 9,2018, the Court denied this same motion to sequence discovery brought by Defendant 3 Health Net of California, Inc. ("Defendanf), stating that "the issues of burden, privacy, 4 relevance/necessity, and timing are all much better addressed and analyzed in detailed discovery 5 motions (motions to compel, motions for protective order) than by a broad stay on virtually all 6 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, 7 ROA #132 ("Order"), p. 2 (March 9, 2018).' The Court denied Defendant's motion "without prejudice to 8 seek similar specific relief by appropriate discovery motion directed to the law and motion department, 9 including motions for protective orders." Id. 10 This Order was issued by the Honorable Alan G. Perkins in Department 35. Id. Defendant violated 11 the Order by failing to file the appropriate motion, such as a motion for protective order or opposition to 12 Plaintiffs motions to compel. Defendant, instead, continues to seek "a broad stay on virtually all discovery 13 without the detailed substance necessary to assess such issues" despite the Court's clear admonition against 14 such a filing. Id. Defendant is, therefore, forum shopping a more favorable outcome and hoping this Court 15 will not notice the violation of Judge Perkins's Order. 16 Because Defendant's motion is made in contravention of the Court's Order, Defendant's motion 17 should be stricken. To the extent the Court construes Defendant's motion as an improperly named motion 18 for protective orders, the result should be the same because Defendant did not comply with the meet and 19 confer requirement of a properly made motion for protective order. 20 As to the substance of Defendant's request, Plaintiff Andrea Spears ("Plaintiff and "Plaintiff 21 Spears") brings this case on behalf of a class of former and current non-exempt, hourly employees of 22 Defendant Health Net of Califomia, Inc. ("Defendanf) ("Class Members"), asserting that Defendant failed 23 to properly compensate Plaintiff and the Class Members all time worked, failed to properly calculate the 24 regular rates of Plaintiff and Class Members, failed to provide compliant meal and rest periods or provide 25 the corresponding premiums, and failed to provide Plaintiff and Class Members with accurate itemized wage 26 statements. For this action to be certified as a class action. Plaintiff must present substantial evidence in 27 28 ' Emphasis added unless otherwise indicated. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY I CASE No. 34-2017-00210560 1 support of class certification. The discovery Defendant seeks to stay, here, is all relevant to a certification 2 decision and, as this discovery would be unaffected by a decision to sequence "certification discovery" 3 before "merits discovery," Plaintiff has never agreed to postpone its production after a decision regarding 4. sequencing. In fact. Defendant's motion erroneously asks the Court to deny Plaintiff discovery that Plaintiff 5 has a due process right to receive for purposes of class certification. 6 Defendant's ignoring Plaintiffs meet and confer where Plaintiff explained that seeking this 7. discovery is reasonable because Plaintiffs counsel has sought and obtained the same broad classwide 8 discovery in other wage and hour class cases. See, e.g., Orozco v. III. Tool Works Inc., 2016 U.S. Dist. 9 LEXIS 48483 (E.D. Cal. Apr. 11, 2016) (compelling all time records and all payroll records, after which, 10 Plaintiff successfully certified a meal break and wage statement class). Defendant's effort to stay this 11 discovery is not out of burden, but out of fear that the requested discovery will lead to class certification. 12 Plaintiffs counsel's experience is in line with recent Califomia case law. The Court of Appeal in 13 Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388, 416 (2015), relied on such data to 14 reverse the denial of certification of a meal break claim. The court cited evidence that "a small 15 fraction of missed meal period premiums were paid relative to the total number of missed meal 16 breaks" as part of the plaintifrs showing for purposes of class certification that the defendant's 17 "classwide practices violate California law." Id. at 417.^ Defendant, therefore, mistakenly claims that 18 such evidence sought here by Plaintiff is merits-based and not relevant to certification. 19 ¥o\\ovJingAlberts,t\\eCo\xno{ AppQ&Wn ABMIndus. Overtime Cases,20\l Cal. App.LEXlS 1165 20 (Ct. App. Dec. 11, 2017), again reversed a denial of class certification in reliance on the kind of classwide 21 time and payroll data that Defendant's motion, if granted, would be denied to Plaintiff There, in reasoning 22 that "the legality of ABM's uniform payroll policy... is a legal question that can be determined by 23 reference to facts common to all class members," the Court relied heavily on the plaintifTs showing 24 that, based on 1,836,083 time entries of the putative class members, 1,141,903 shifts occurred without 25 a meal break occurring in the first five hours. Id. at 310. The Court of Appeal thus clearly held that such 26 evidence is relevant to certification. Indeed, the reversal of the denial of certification was based on the trial 27 28 ^ Emphasis added, unless otherwise indicated. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 2 CASE No. 34-2017-00210560 1 court's erroneous exclusion of this data. Thus, here, Defendant has no basis to ask this Court to repeat the 2 same error. Defendant is attempting to deny Plaintiff access to such discovery not out of any legitimate 3 objection, but in order to prejudice Plaintiffs ability to demonstrate that class certification is appropriate 4 with evidence of how the allegedly illegal effects of Defendant's policies affected the class members as 5 evidenced by missed meal breaks shown in time records and miscalculated overtime wages shown in payroll 6 records. 7 The Court should further deny Defendant's motion as to the Class Members' itemized wage 8 statements, the identity of the supervisors and their contact information, the identity of a narrowed group 9 of Class Members, and the numerical data Plaintiff has requested, such as number of meal and rest period 10 premiums paid, because this discovery, like the time and wage records, is discovery that is relevant to 11 certification. Defendant's motion, here, is a disguised attempt to give itself an unfair advantage at the 12 certification stage through denying Plaintiff access to proper certification discovery. 13 For these reasons, explained more fully below. Plaintiff respectfully requests that Defendant's 14 motion be struck as procedurally improper or, to the extent the Court considers the substance of Defendant's 15 request, denied. 16 17 IL STATEMENT OF FACTS 18 Plaintiff Spears filed this action on April 5, 2017, filing a First Amended Complaint that added a 19 cause of action pursuant to PAGA on June 29,2017. The Parties filed a stipulation to consolidate the Spears 20 action with Arana v. Health Net of California, Inc., case no. 34-2017-00216685, which the Court ordered 21 consolidated on October 11, 2017. 22 A. Defendant Sought to Prevent this Discovery Through Delay Tactics 23 Plaintiff served her first set of discovery requests on July 25, 2017. (Declaration of Victoria B. 24 Rivapalacio ("R. Decl.") T| 3.) After Plaintiff granted Defendant's request for an extension, Defendant served 25 its initial responses on September 12,2017, and produced its first set of documents on September 14,2017. 26 (R. Decl., E2csj_&2.) On September 21 and 22,2017, Plaintiff sent correspondence to Defendant detailing 27 the deficiencies in Defendant's responses. (Rivapalacio Decl., Exs. 3 & A.^ Plaintiff followed up regularly 28 over the following month. (R. Decl., Ex. 5.) Forthe most part, in response to Plaintiffs requests, Defendant PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 3 CASE No. 34-2017-00210560 1 offered silence. (Id.) When Defendant did respond, it was to kick the can down the road. For example, in 2 response to Plaintiffs request on September 28, 2017, Defendant stated it would get in touch "next week." 3 (Id.) In response to Plaintiffs request on October 4,2017, Defendant stated it would respond "shortly." (Id.) 4 In response to Plaintiffs request on October 10,2017, Defendant stated it would respond "in the next week 5 or so." (Id.) Defendant onlyfinallymade itself available for a telephonic meet and confer on October 6 24,2017, over a month after Plaintifffirstrequested to meet and confer regarding the discovery. (R. 7 Decl., Ex. 6.) 8 During the telephonic meet and confer on October 24, 2017, Defendant maintained two different 9 positions in regard to the various deficient responses: 1) Defendant agreed that the responses were deficient 10 and promised to remedy the deficiencies through supplemental responses, but would "not provide a timeline 11 as to when those [would] be provided"; and 2) Defendant asserted that the discovery sought was "merits" 12 discovery and stated it would not produce it without Court intervention. (Id.) Notably, Defendant did assert 13 that it would willingly produce even that discovery it considered "merits" if the Court declined to sequence 14 discovery. (R. Decl. ^ 6.) 15 The Parties exchanged dozens of email correspondence and conferred telephonically but, over a 16 month later, Defendant had still yet to provide supplemental responses, produce documents, or provide a 17 date certain as to the anticipated production. (R. Decl. 1 7.) Further, in that interim, no further ground was 18 gained in regard to the discovery that was undeniably in dispute, that Defendant outright refused to produce 19 without a Court order. (Id.) 20 1. Plaintiffs First Set of Motions to Compel 21 Plaintiff was forced by Defendant's delays to file the first set of motions to compel, which she did 22 on December I , 2017. (R. Decl. | 7.) Defendant then served the supplemental responses, on December 6 23 and 7, 2017, six (6) weeks after the initial meet and confer and only after Plaintiff was forced to incur the 24 fees and costs associated with the discovery motions. (Id.) 25 At Defendant's request and roughly one week after Defendant provided its supplemental responses, 26 Plaintiff withdrew the first set of motions to compel on December 15, 2017. (R. Decl. ^ 8.) Although a 27 significant number of discovery requests remained at issue after the supplemental responses and production 28 of documents were provided - the same requests that were at issue in the second set of motions to compel PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 4 CASE No. 34-2017-00210560 1 and that remain in dispute - Plaintiff withdrew the motions for efficiency purposes, so as not to waste the 2 Parties' orthe Court's resources organizing a motion as to which discovery still required a court order. (Id.) 3 Plaintiff sought to refine the motions so that they would address only the discovery that remained outstanding and, also, so Plaintiff could attempt to avoid Defendant's continued dishonest claim that 5 Plaintiff had not exhausted meet and confer efforts. (Id.) 6 Acquiescing to Defendant's disingenuous assertion that the Parties had failed to properly and 7 exhaustively meet and confer, Plaintiff sought to meet and confer with Defendant again after withdrawing, 8 per Defendant's request, the first set of motions to compel. (R. Decl., Ex. 9.) The Parties met and conferred 9 telephonically on December 20,2017, addressing how Defendant's production altered the dispute detailed 10 in the motions and further exhausting any remaining issues. (R. Decl., Ex. 10.) 11 2. Plaintiffs Second Set of Motions to Compel 12 Plaintiff filed the second set of motions to compel on January 17, 2018, pared down to only those 13 discovery requests that Defendant had maintained from its initial responses that it would not provide without 14 court intervention. (R. Decl. t 10.) Defendant filed its first motion to sequence discovery on January 23, 15 2018, set for hearing on March 9, 2018 in Department 35. (R. Decl. H 1 !•) After reviewing Defendant's 16 motion to sequence, researching its positions, and, again, at Defendant's request. Plaintiff withdrew the 17 second set of motions to compel. (R. Decl. 11-12.) 18 B. Defendant Unfairly Used the At-Issue Discovery in Its Motion for Summary Adjudication 19 On February 5, 2018, six (6) days after Plaintiff withdrew her second set of motions to compel 20 discovery. Defendant served its MSA in which Defendant cites the discovery of class member payroll 21 Defendant so vehemently claimed was inappropriate to share with Plaintiff. (R. Decl. 113.) Defendant relied 22 on this data in its MSA to claim that "the total cash benefits provided to Participants who waived dental 23 and/or medical coverage represented a very small percentage of HNCA's contributions provided under the 24 Plan for the elected dental and/or medical coverage: 1.4% in 2013,1.3% in 2014; 0.9% in 2015; and 0.9% 25 in2016." Def Memo. ISO MSA, ROA #101, pp. 3-4. 26 C, Defendant Failed to Meet and Confer Before Filing This Motion to Sequence 27 Defendant's first motion to sequence discovery was denied without prejudice on March 9,2018. (R. 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 5 CASE No. 34-2017-00210560 1 Decl. 1 14.) Plaintiff immediately sought to meet and confer regarding the effect of the order on the 2 discovery that still remains in dispute as no order has yet been issued to resolve the longstanding issues. (R. 3 Decl., Ex. 12.) Pursuant to the Order on Defendant's Motion to Sequence, Plaintiff was incorrect to have 4 acquiesced to Defendant's requests by withdrawing the then-pending motions to compel, because the "issues 5 of burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed 6 discovery motions (motions to compel, motions for protective order) than by a broad stay on virtually all 7 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, ROA 8 #132, p. 2. 9 Defendant declined Plaintiffs request to meet and confer regarding Plaintiffs then-upcoming 10 motions to compel further responses.^ (R. Decl., Ex. 12.1 Instead, and without even a request fo meet and 11 confer. Defendant re-filed its motion to sequence, to be heard this time in Department 54, contravening the 12 Court's Order that the dispute is ripe for motions to compel or motions for a protective order rather than a 13 request for a blanket stay on swaths of discovery. (R. Decl. 1 16.) 14 15 III. ARGUMENT 16 A. Defendant's Re-Filed Motion to Sequence Discovery Is Unacceptable Forum Shopping 17 The Court's Order denying Defendant's first-filed motion to sequence stated clearly that the "issues 18 of burden, privacy, relevance/necessity, and timing are all much better addressed and analyzed in detailed 19 discovery motions (motions to compel, motions for protective order) than by a broad stay on virtually all 20 discovery without the detailed substance necessary to assess such issues." Order on Mot. to Sequence, ROA 21 # 132, p. 2. Defendant's motion was "denied without prejudice to seek similar specific relief by appropriate 22 discovery motion directed to the law and motion department, including motions for protective orders." 23 (Id.) 24 Defendant's motion is not a motion for protective orders as such a motion must comply with either 25 Cal. Code Civ. Proc. §2030.090 or §2031.060, both of which require that such a motion "be accompanied 26 by a meet and confer declaration." Cal. Code Civ. Proc. §2030.090(a); §2031.060(a). Defendant did not 27 2g ^ Plaintiff filed a third set of motion to compel further responses to discovery on March 20, 2018, set for hearing on April 16, 2018 in Department 54. (R. Decl. 116.) PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 6 CASE No. 34-2017-00210560 offer such a declaration and, indeed, cannot. Defendant did not request to meet and confer with Plaintiff 2 regarding its motion prior to its filing in this department and, in fact, rebuffed Plaintiffs requests to meet 3 and confer regarding her motions to compel regarding the same discovery. (R. Decl., Ex. 12.) 4 In short. Defendant's motion to sequence is not an "appropriate discovery motion" and is, therefore, 5 an inappropriate attempt at forum-shopping a more favorable decision on its request for a blanket stay of 6 discovery. 7 To the extent the Court is inclined to consider Defendant's motion to sequence discovery as an 8 improperly named motion for protective orders and, thus, compliant with Judge Perkins's Order, 9 Defendant's motion must still be struck as procedurally improper. Defendant not only failed to meet and 10 confer prior to its filing but refused Plaintiffs attempt to meet and confer regarding the at-issue discovery.'' 11 Such a failure is a misuse ofthe discovery process, pursuant to Cal. Code Civ. Proc. § 2023.010(1): "Misuses 12 of the discovery process include... failing to confer in person, by telephone, or by letter with an opposing 13 party or attomey in a reasonable and good faith attempt to resolve informally any dispute conceming 14 discovery, if the section goveming a particular discovery motion requires the filing of a declaration stating 15 facts showing that an attempt at informal resolution has been made." Because a motion for protective orders 16 does, in fact, require such a declaration. Defendant's failure here is a misuse of the discovery process subject 17 to sanctions. 18 B. The Discovery At Issue Here Is Relevant and Timely 19 1. Time and Payroll Records are Proper Evidence for Class Certification and Defendant's Motion for Summary Adjudication 20 Defendant has demonstrated in its MSA both the relevance of the payroll records and the lack of 21 burden in their production. Defendant cited to this very discovery when Defendant stated that "the total cash 22 benefits provided to Participants who waived dental and/or medical coverage represented a very small 23 percentage of HNCA's contributions provided under the Plan for the elected dental and/or medical coverage: 24 1.4% in 2013, 1.3% in 2014; 0.9% in 2015; and 0.9% in2016." Def Memo. ISO MSA, ROA #101, pp. 3-4. 25 26 ., Notably, Plaintiffs attempt to meet and confer prior to refiling the motions to compel - the motions 2^ deemed a proper mechanism for resolving this ongoing discovery dispute - met by Defendant's delayed 2g but ultimate refusal allowed Defendant to re-file its motion to sequence discovery prior to Plaintiffs filing of those motions to compel. (R. Decl. 1114-16.) PLAINTIFF^S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 7 ' CASE No. 34-2017-00210560 This classwide payroll data that Defendant seeks to withhold from Plaintiff is the same information 2 Defendant unilaterally gathered and used for Defendant's own benefit in filing the MSA. Because Plaintiff 3 agreed to Defendant's proposal to withdraw the prior pending motions to compel. Plaintiff now is 4 disadvantaged by not having this data to review and refute Defendant's claims. 5 As to certification, time and payroll records are regularly analyzed and referred to by Califomia 6 courts when determining the applicability of the class certification requirements, including commonality, 7 ascertainability, manageability, and typicality. 8 In ABM Indus. Overtime Cases, the Court of Appeal found that predominance could be 9 established through reference to the class members' time records and exception reports that were 10 provided with the plaintiffs' class certification motion: 11 [T]he legality of ABM's uniform payroll policy-which assumes each employee works his or her scheduled shift and takes any legally required meal breaks absent some type of 12 exception report-is a legal question that can be determined by reference to facts common to all class members. Certainly, the evidence provided by Woolfson that a mere 5,625 ofthe 13 1,836,083 time entries for ABM Workers he investigated (0.3 percent) contained adjustments to pay calls into question the efficacy of ABM's asserted 'timesheet 14 maintenance' procedure, as does the evidence presented by plaintiffs that ABM does not generate exception reports for missed meal periods. 15 Id. at *57-58 (emphasis added). It is notable that the nearly two million time entries analyzed were useful, 16 not excessive or overly burdensome for the court to evaluate. See id. Indeed, "it was error for the trial court 17 to completely disregard plaintiffs' proffered expert evidence of common practice." Id. at *33. This evidence 18 was made possible through the provision to the plaintiffs ofthe putative class members' time and 19 payroll records. 20 Even when the party proposing a class asserts "the employer consistently imposed a uniform policy 21 or de facto practice on class members, the party must still demonstrate that the illegal effects of this conduct 22 can be proven efficiently and manageably within a class setting." Duran v. U.S. Bank Nat'l Ass'n, 59 Cal. 23 4th I , 29 (2014); see Koval v. Pacific Bell Telephone Co., 232 Cal.App.4th 1050, 1060 (20l4)("existence 24 of a uniform policy does not limit a trial court's inquiry into whether class action treatment is appropriate"). 25 "To the contrary, 'courts have routinely concluded that an individualized inquiry is necessary even where 26 the alleged misclassification involves application of a uniform policy. " Mies v. Sephora U.S.A., Inc., 234 27 Cal. App. 4th 967,984 (2015). For this reason, the court in^5Mconsidered classwide time and payroll data 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 8 CASE No. 34-2017-00210560 1 even though the review involved the production of over 1 million lines of data. 2 The California Court of Appeal further referenced defendant ABM Industries' time and 3 payroll records of the putative class members for purposes of ascertainability: 4 [T]he subclass of ABM Workers who 'suffered an automatic deduction of a half-hour although the employee actually worked through the deducted meal period' can be identified 5 through ABM's timekeeping and payroll records showing numerous instances where a meal deduction was made for a shift without a corresponding time entry indicating that a 6 meal period was taken. The subclass of ABM Workers who were not paid premium meal period wages when they worked shifts of a particular length without a recorded meal period 7 can similarly be ascertained through reference to the same records, reviewed to determine whether any required premium wages were paid where no meal period was 8 recorded. The Unpaid Split-Shift Premium Subclass... can be identified by examining ABM's timekeeping and payroll records to determine which employees worked two or 9 more shifts in the same day separated by more than an hour, but were not paid premium wages related to the split shift(s). Finally, members of the Reimbursement Subclass... can 10 be identified by searching ABM payroll records to determine which employees worked at multiple jobsites separated by a certain baseline number of miles during the same 11 workday, but did not receive reimbursement for travel. 12 Id at *49-50. 13 Defendant has no basis to move for the withholding of this data when the Califomia Court of Appeal 14 just held that the exclusion of this same evidence is reversible error. Defendant is attempting to deny 15 Plaintiff access to such discovery not out of any legitimate objection, but in order to prejudice Plaintiffs 16 ability to demonstrate that class certification is appropriate with evidence of how the allegedly illegal effects 17 of Defendant's policies affected the class members as evidenced by missed meal breaks shown in time 18 records and miscalculated overtime wages shown in payroll records. 19 As another example, in Alberts, the Califomia Court of Appeal overtumed the trial court's denial 20 of class certification in part because the trial court did not properly consider the plaintiffs' statistical 21 evidence offered, citing instead that the plaintiffs had provided "only anecdotal evidence that employees 22 were denied overtime or forced to work off the clock." Id. at 414. The Court of Appeal cited the plaintiffs' 23 expert's statistical analysis "ofthe Hospital's scheduling and payroll records [that] demonstrated that 'nearly 24 one out of every five recorded meal breaks was either added or edited by a supervisor.'" Id. at 416. The 25 court also referenced the analysis in order to conclude that 26 (I) A small fraction of missed meal premiums were paid relative to the total number of missed meal breaks (e.g., although Hospital records show 67 late, short or completely 27 missed meal breaks per 100 shifts, only 3.5 missed meal or rest premiums were paid per 100 shifts); (2) Almost half (44.6 percent) of the meal breaks recorded were less than 30 28 minutes long; (3) Over one-third (34.3 percent) of meal breaks recorded were taken PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 9 CASE No. 34-2017-00210560 1 more than six hours after the start of a shift; (4) Most (over 80 percent) of an employee's first recorded meal breaks were either less than 30 minutes long or started more than six 2 hours after the start of his or her shift; (5) The majority (87.4 percent) of all work periods longer than 10 hours did not reflect that a second meal break was taken; (6) Among work 3 periods in excess of 10 hours that did have a second meal break recorded, roughly one-third (33.6 percent) of those breaks were under 30 minutes and three-fourths (73 percent) were 4 taken more than 11 hours after a shift started. Fewer than I percent of second meal breaks examined were both 30 minutes long and timely provided; (7) There was a widespread 5 practice by which management modified timekeeping records: 24.5 percent of the first and 46 percent of the second recorded meal breaks were "round punch meal breaks" (added 6 or edited by supervisors), and most (84 percent) of all sampled class members' time records showed "round punch work periods"; [and] (8) On days on which no break relief was 7 reflected in the Hospital's daily schedules, timekeeping records still reflected an average of 2.2 meal breaks per day (suggesting that the timekeeping data overreports the number of 8 meal breaks). 9 M a t 417-418. 10 Based on this evidence that Defendant is seeking to withhold here as not related to certification, the 11 appellate court reversed the denial of certification and held that "plaintiffs' evidence, including [the 12 expert's] analysis, constitutes persuasive common proof of the Hospital's uniform policies and 13 practices resulting in a classwide denial of lawfully compliant breaks to nursing staff." Id at 418. 14 Notably, the appellate court did not dismiss the analysis as merits evidence, inapplicable to a motion for 15 class certification. Instead, the classwide time and payroll records, analyzed by an expert, demonstrated 16 the suitability of certification as to the meal and rest period claims, as well as the overtime claim. The error 17 of the trial court was in "refusing to consider statistical evidence" that was compiled through the 18 plaintiffs' access to the putative class members' time and payroll data. Id. at 412. 19 The poverty of Defendant's argument is exposed by Defendant's utter disregard of this binding 20 Califomia law. Decisions of federal courts, other than the United States Supreme Court, are not binding on 21 state courts, regardless of whether they are interpreting federal or state law. People v. Crittendon, 9 Cal.4th 22 83,120, fn. 3 (1994); Landmark Screens, LLC v. Morgan, Lewis & Bockius, LLP, 183 Cal.App.4th 238,251, 23 fn. 6 (2010). Moreover, the federal cases Defendant cites to deny discovery that are in conflict with 24 Califomia State law are outnumbered by federal court decisions that have adopted the Califomia standard 25 of providing plaintiffs with real evidence of time and payroll records for purposes of supporting a class 26 certification motion. E.g, Chavez v. Petrissans, 2008 U.S. Dist. LEXIS 111596 at *9-l 0 ("The requested 27 information is relevant and discoverable for purposes of class certification since the documents 28 provide information regarding the numbers of hours worked and the amount employees were PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 10 CASE No. 34-2017-00210560 1 paid.")(emphasis added); Gordon v. Aerotek, //7c.,No. EDCV 17-0225-DOC (KKx), 2017 U.S. Dist. LEXIS 2 161766, at * 15 (CD. Cal. Sep. 29,2017) ("The Courtfindsdiscovery of putative class member time sheets 3 and wage statements is appropriate and likely to assist in establishing commonality of the failure to pay 4 overtime wages."); Orozco v. III. Tool Works, Inc., No. 2:l4-cv-2113-MCE-EFB, 2016 U.S. Dist. LEXIS 5 128315, at * 11 (E.D. Cal. Sep. 20,2016) (Court ordered that "defendant shall produce the time records (i.e., 6 handwritten time sheets) of the class members"). In short, records that show time and wages are relevant 7 documents in Califomia wage and hour class action litigation. Chavez, 2008 U.S. Dist. LEXIS at *9-10. 8 Defendant's request to sequence such discovery until after a decision on class certification seeks an 9 advantage against Plaintiffs motion for class certification by preventing Plaintiff from presenting to the 10 Court the discovery necessary to make a proper certification analysis. 11 2. Wage Statements are Proper Evidence for Class Certification 12 Plaintiff seeks the itemized wage statements of the Class Members because Plaintiff alleges that 13 Defendant failed to provide accurate itemized wage statements pursuant to Cal. Lab. Code § 226. There is 14 no better evidence than the wage statements themselves. Further, this evidence is necessary as to the entire 15 class to demonstrate they are uniform, which will refute Defendant's anticipate assertion that individual 16 issues predominate. 17 It is based on their relevance to certification that wage statements are regularly compelled prior to 18 certification in wage and hour cases such as this one. For example, Plaintiffs counsel obtained a similar 19 result in Gordon v. Aerotek, Inc., 2017 U.S. Dist. LEXIS 161766 (CD. Cal. Sep. 29,2017), where the court 20 compelled "discovery of putative class member time sheets and wage statements [as] appropriate and likely 21 to assist in establishing commonality of the failure to pay overtime wages.." Id. at *15. Clearly Plaintiffs 22 counsel was reasonable in trying to do the same here. 23 3. The Identification of Supervisors is Proper Evidence for Class Certification 24 The supervisors of the Class Members are witnesses to the allegations in the complaint. Supervisors 25 are held responsible for implementing and enforcing a defendant employer's policies, especially in regard 26 to the provision of meal and rest periods. Just like class members, the supervisors are "potential percipient 27 witnesses to alleged illegalities, and it is on that basis their contact information becomes relevant." Williams 28 V. Superior Court, 3 Cal. 5th 531, 547 (2017). PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 11 CASE No. 34-2017-00210560 1 In a wage and hour class action alleging that the putative class members were misclassified as 2 exempt, as here by Plaintiff Arana, the supervisors and their role in managing the class members' day-to-day 3 job tasks is highly relevant to determining commonality and typicality for certification. Plaintiff must 4 demonstrate and the Court must evaluate the issue as to whether Class Members used their independent 5 judgment and discretion in their job performance and whether that issue is common to the class. 6 Plaintiff anticipates that Defendant will assert that individual issues predominate: that any denial of 7 meal or rest periods for Class Members or any overly managed Class Members are the result of independent 8 supervisors and not of a company policy. Therefore, the testimony a supervisor can provide may evidence 9 the universal and systemic policies of Defendant, that an expectation was understood and that the illegal 10 wage and hour practices came from above. 11 4. Numerical Data is Proper Evidence for Class Certification 12 At the class certification stage, courts must determine whether trial will be manageable as a class 13 action. "In wage and hour cases where a party seeks class certification based on allegations that the 14 employer consistently imposed a uniform policy or de facto practice on class members, the party must still 15 demonstrate that the illegal effects of this conduct can be proven efficiently and manageably within a class 16 setting." Duran, 59 Cal. 4th at 29. 17 At trial, "once the issues common to the class have been tried, and assuming some individual issues 18 remain, each plaintiff must still by some means prove up his or her claim, allowing the defendant an 19 opportunity to contest each individual claim on any ground not resolved in the trial of common issues." Id. 20 at 29 (citing Johnson v. Ford Motor Co., 35 Cal.4th 1191, 1210 (2005)). Class certification remains 21 appropriate so long as the individual issues may be effectively managed. Id. Thus, "[i]n considering 22 whether a class action is a superior device for resolving a controversy, the manageability of individual issues 23 is just as important as the existence of common questions uniting the proposed class." Id. at 29. 24 Because demonstrating manageability requires a showing that damages were incurred and that 25 damages can be calculated classwide, Plaintiff seeks the data to make this showing so the Court may make 26 a proper analysis of the suitability of certification. The numerical data Plaintiffs have requested and that 27 Defendant seeks to withhold-the number of class members who received overtime compensation and cash 28 payments in lieu of health benefits during the same pay period, the number of meal period premiums paid, PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 12 CASE No. 34-2017-00210560 1 the total dollar amount of meal period premiums paid, etc.-is that data the Court will use to ensure that 2 individual issues may be effectively managed at trial. 3 The data Defendant requests to withhold until after certification is readily available when it benefits 4 a defendant to produce it. For example, for removal purposes or for mediation, this information is produced 5 quickly and without objection. Regardless, Defendant's assertions as to burden, here, are outweighed by the 6 usefulness of the information: "If the court makes a reasoned, informed decision about manageability at the 7 certification stage, the litigants can plan accordingly and the court will have less need to intervene later to 8 control the proceedings." Duran, 59 Cal. 4th at 29. 9 C. Class Certification Issues Inevitably Overlap With Merits Issues 10 Sequencing discovery is problematic in wage and hour class actions because class certification 11 requirements are inherently and unavoidably enmeshed with issues affecting the merits of the case. Brinker 12 Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 (2012). In fact, discovery that is often classified as 13 "merits discovery" is also the evidence that common questions predominate, that the class representative's 14 claims are typical of those of the class, that the action will be manageable at trial as a class action, and that 15 the class members are ascertainable, all of which are requirements for certification. 16 For example, the resolution of the predominance question necessary for class certification-whether 17 the elements necessary to establish liability are susceptible to common proof-"will often depend upon 18 resolution of issues closely tied to the merits." Brinker, 53 Cal. 4th at 1023. Uniform policies "bear heavily 19 on questions of predominance and superiority... [because] such centralized rules, to the extent they reflect 20 the realities of the workplace, suggest a uniformity among employees that is susceptible to common 21 proof" Dobrosky v. Arthur J Gallagher Serv. Co., LLC, 2014 U.S. Dist. LEXIS 106345, at *29 (CD. Cal. 22 July 30, 2014). The best evidence of the "realities of the workplace" are the actual records of work 23 performed, such as time records and time adjustment records. See Alberts, 241 Cal. App. 4th at 412 24 (overtuming the trial court's denial of certification based, in part, in the court's failure to consider the 25 expert's analysis of time and payroll data: "[The expert's] declaration was offered to show that the 26 Hospital's timekeeping and payroll data confirmed plaintiffs' theory that class-wide policies led to the 27 denial of meal breaks for putative class members."). 28 Typicality, another certification element, "is whether other members have the same or similar injury, PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO SEQUENCE DISCOVERY 13 CASE No. 34-2017-00210560 1 whether the action is based on conduct which is not unique to the named plaintiffs, and whether other class 2 members have been injured by the same course of conduct. Thus, typicality is satisfied ifthe plaintiffs 3 claims are reasonably co-extensive with those of absent class members." Dobrosky, 2014 U.S. Dist. LEXIS 4 106345, at *24. As such, typicality in a case asserting meal period violations, a failure to pay meal and rest 5 period premiums, and the miscalculation of the Class Members' regular rate is evidenced most clearly 6 through time and payroll records, including time adjustment records and other mechanisms for recording 7 time worked, such as logging in and out of computers. This is precisely the evidence Defendant seeks to 8 withhold here, under the pretense of sequencing "merits" discovery until after certification is decided. 9 There is no bright line between merits discovery and certification discovery. See Brinker, 53 Cal. 10 4th at 1023 ("Analysis of a class certification's propriety '[fjrequently ... will entail some overlap with the 11 merits of the plaintiffs underlying claim. That cannot be helped."')(citing Wal-Mart Stores, Inc. v. Dukes, 12 564 U.S. 338, 351 (2011)). For this reason, Defendant's motion to sequence discovery should be denied. 13 D. PAGA Discovery Should Not Be Bifurcated 14 Plaintiff asserts a claim pursuant to PAGA in this case and PAGA does not require certification. The 15 steps necessary to pursue and claim pursuant to PAGA is to "give written notice by online filing with the 16 Labor and Workforce Development Agency and by certified mail to the employer of the specific provisions 17 of [the] code alleged to have been vio