Preview
1 Timothy J. Long (SBN CA 137591)
GREENBERG TRAURIG, LLP
2 1201 K Street, Suite 1100
Sacramento, Califomia 95814
3 Telephone: 916.442.1111
Facsimile: 916.448.1709
4 longt@gtlaw.com FILED/EMDORSED
5 Jonathan S. Sack (SBN CA 271286)
GREENBERG TRAURIG, LLP SEP 6 2019
6 Four Embarcadero Center, Suite 3000
San Francisco, Califomia 94111 By:. H. Pnrtalan/a
7 Telephone: 415.655.1300 Deputy Clerk
Facsimile: 415.707.2010
8 sackj @gtlaw.com
9 Attomeys for Defendants HEALTH NET OF CALIFORNL\, INC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
14 ANDREA SPEARS, an individual, on behalf of CASE NO. 34-2017-00210560-CU-OE-GDS
herself and on behalf of all persons similarly
15 situated, DEFENDANT HNCA'S BRIEF AS TO WHY
NO DERIVATIVE CLAIMS SHOULD BE
16 Plaintifif, PERMITTED FOR ALLEGED VIOLATIONS
OF LABOR CODE SECTION 226
17
18 HEALTH NET OF CALIFORNIA, INC., a DATE: September 6, 2019
Califomia corporation; and DOES 1 through 50, JUDGE: Hon. Alan A. Perkins
19 inclusive, DEPT: 35
20 Defendants.
21
22 TOMAS R. ARANA, on behalf of himself, all
others similariy situated,
23
Plaintiff,
24
25
HEALTH NET OF CALIFORNLA, INC., a
26 Califomia corporation; and DOES 1-50,
27 inclusive.
28 Defendant.
1 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERTVATIVE CLAIMS SHOULD BE PERMITTED
1 I. INTRODUCTION
2 Plaintiff TOMAS R. ARANA's ("Plaintiff") Motion for Class Certification for violations under
3 Labor Code section 226 seeking penalties for inaccurate wage statements is not supported by law. The
4 Court properly denied class certification on this claim in its tentative mling and should so affirm. At the
5 August 30, 2019 hearing (the "Hearing") on Plaintiffs Motion, Defendant HEALTH NET OF
6 CALIFORNLA, INC. ("HNCA" or "Defendant") stated that current Califomia law supports its position
7 that Plaintiffs derivative wage statement claims could not be pursued, either individually or as a class.
8 Because Maldonado v. Epsilon Plastics, Inc. holds that a derivative claim for wage statement violations
9 fails as a matter of law absent a showing of injury. Plaintiffs Motion on his derivative wage statement
10 claim must also fail. 22 Cal. App. 5th 1308 (Cal. Ct. App. 2018).
11 II. FACTS AND PROCEDURAL HISTORY
12 On December 21, 2018, Plaintiff filed a Motion for Class Certification on five wage and hour
13 causes of action: (1) Failure to Provide Meal Periods (Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2)
14 Failure to Provide Rest Periods (Lab. Code §§ 204, 223, 226.7, and 1198); (3) Failure to Pay Hourly
15 Wages (Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198); (4) Failure to Provide Accurate
16 Written Wage Statements (Lab. Code §§ 226(a)); and (5) Failure to Timely Pay All Final Wages (Lab.
17 Code §§ 201-203.) On Febmary 15, 2019, HNCA opposed Plaintiffs Motion and Plaintiff filed his Reply
18 on March 15, 2019. Only Claim No. 4 is at issue in this brief
19 On August 29, 2019, the Court issued a tentative mling on F'laintiff s Motion. The Court denied
20 Plaintiffs three foundational claims and, as a result, concluded that Plaintiffs Motion fails on the
21 derivative claims as well. (8/30/19 Tent. Ruling., p. 6.) The Court, however, certified a question as to
22 whether HNCA's timekeeping system prevented an accurate capture of the putative class members' start
23 times (the "Clock-In Claim"). Accordingly, the Court denied Plaintiffs Motion save for the single
24 question the Court determined was suitable for class treatment.
25 At the August 30, 2019 hearing, the Court affirmed the tentative mling on iPlaintifFs Motion with
26 one clarification, i.e., the Court would consider whether Plaintiffs derivative Wage Statements claim
27 could proceed in light of the Court's decision to certify this single question. (See 8/30/19 Tentative
28 Ruling; 9/04/19 Min. Order.) The Court allowed HNCA to provide supplemental briefing on the issue of
• [ 2 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERPVATTVE CLAIMS SHOULD BE PERMITTED
1 class certification of the derivative Wage Statements claim, and Plaintiff would be pennitted to submit a
2 rebuttal thereto seven days later,
3 in. ARGUMENT
4 Plaintiffs motion for class certification of alleged violations of Labor Code section 226 must fail
5 because such derivative claims cannot be maintained where, as here, any alleged wage statement
6 inaccuracies do not give rise to an injury.
7 A. The 2018 California Court of Appeal Case Maldonado v. Epsilon Plastics, Inc Held
8 that a Derivate Claim for Wage Statement Violations Must Fail
9 In Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308 (Cal. Ct. App. 2018), the employer
10 improperly adopted an Altemative Workweek Schedule ("AWS"), resulting in overtime violations for the
11 last two hours of employees' shifts. Given that the wage statements, in tum, "did not properly indicate
12 that the ninth and 10th hours were overtime," the trial court awarded penalties for inaccurate wage
13 statements under Labor Code section 226 of the Labor Code - in addition to unpaid overtime, interest,
14 waiting time penalties, and attomey's fees. Id. at 1312, 1334.
15 The Court of Appeal reversed because "inaccurate wage statements alone do not justify penalties;
16 the plaintiffs must establish injury flowing from the inaccuracy." Id. at 1334; id. at 1335 ("Wage
17 statement penalties are awarded only to employees who suffer injury 'as a result of a knowing and
18 intentional failure by an employer tp comply with subdivision (a).'") (quoting Lab. Code § 226 (e)(1).
19 The court concluded that the plaintiffs failed to establish that they suffered an injury as a result of
20 inaccurate wage statements for two reasons.
21 First, plaintiffs' injuryflowednot from the inaccurate wage statements but from the employer's
22 improperly adopted AWS. That the AWS "ultimately tumed out to be invalid mandates that the
23 employees receive unpaid overtime, interest, and attomey's fees.... It does not mandate that they also
24 receive penalties for the wage statements which accurately reflected their compensation...." Id. at 1337.
25 And second, the court found that injury was not presumed as a matter of law under subdivision
26 226(e)(2)(B)(i). That provision provides:
27
An employee is deemed to suffer injury for purposes of this subdivision if
28 the employer fails to provide accurate and complete information as
3 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED
1 required by any one or more of items (1) to (9), inclusive, of subdivision
(a) and the employee cannot promptly and easily determine from the wage
2 statement alone one or more of the following:
3
(i) The amount of the gross wages or net wages paid to the employee
4 during the pay period or any of the other information required to be
provided on the itemized wage statement pursuant to items (2) to (4),
5 inclusive, (6), and (9) of subdivision (a).'
6 Lab. Code § 226(e)(2)(B)(i). The court rejected the plaintiffs' argument that injury should be presumed
7 because the missing information fell into category (a)(9) - "all applicable hourly rates in effect during the
8 pay period and the corresponding number of hours worked at each hourly rate by the employee" id. at §
9 226(a)(9) - given that "in hindsight, the employees legally worked eight hours at the regular time rate
10 and four hburs at the overtime rate (for each 12-hour shift), but the paystub indicated they worked 10
11 hours at the regular rate and two hours at the overtime rate." Maldonado, 22 Cal. App. 5th at 1336.
12 The court dismissed this argument as "illogical to think [that] this is what the legislature
13 intended." Id. Plaintiffs' "counterargument boils down to the proposition that any failure to pay
14 overtime at the appropriate rate also generates a wage statement injury justifying the imposition of wage
15 statement penalties—an apparent unintentional double recovery."" Id. (emphasis added).
16 The court found support in the legislative intent for its conclusion that injury is not presumed
17 when a wage statement fails to include wages "eamed" but is presumed when the statement excludes
18 "hours worked."
19
The purpose of section 226 is to "document the paid wages to ensure the
20 employee is fully informed regarding the calculation of those wages."
(Soto V. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 392 [208 Cal.
21 Rptr. 3d 618].) "'"The purpose of requiring greater wage stub information
is to insure that employees are adequately informed of compensation
22 received and are not shortchanged by their employers'" (quoting Assem.
23 Com. on Labor and Employment, Analysis of Sen. Bill No. 1255 (2011-
2012 Reg. Sess.) as amended May 15, 2012, p. 3, italics added).)" (Ibid.)
24
7c?. at 1337.
25
26
27 ' "Items (2) to (4), inclusive, (6), and (9) of subdivision (a)" set forth the requirement that wage statements contain: "total
hours worked" (item 2);" the number of piece rate units eamed and any applicable piece rate..." (item 3); "all deductions..."
28 (item 4); the pay period (item 6); and "all applicable hourly rates in effect during the pay period and the corresponding number
of hours worked at each hourly rate by the employee..." (item 9). Lab. Code § 226(a).
• , 4 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED
1 B. Class Certification of Plaintiffs Derivative Claim for Wage Statement Violations
2 Should be Denied.
3 The instant case is analogous to Maldonado. As an initial matter, substantial evidence supports
4 HNCA's position that its timekeeping procedures fully enable employees to accurately capture all hours
5 worked, including their start times. Even assuming arguendo both that this were not the case and that the
6 result was inaccurate wage statements. Plaintiffs derivative wage statement claim still should be denied
7 because Plaintiff "must establish injury flowing from the inaccuracy." Maldonado, 22 Cal. App. 5th at
8 1336. Plaintiff cannot establish such an injury here. As in Maldonado, any injury to Plaintiff would flow
9 not from allegedly inaccurate wage statements but from HNCA's allegedly non-compliant timekeeping
10 practices that, according to Plaintiff, resulted in uncompensated work. On this basis alone. Plaintiffs
11 derivative wage statement claim should be dismissed.
12 Nor can Plaintiff establish that injury is presumed as a matter of law under subdivision
13 226(e)(2)(B)(i); Plaintiff appears to argue that his derivative claim should proceed because the wage
14 statements allegedly do not reflect his clock-in time. This too is inconsistent with Maldonado in that the
15 remedy for Plaintiffs injury, if any, stems from Plaintiffs foundational claims, not from his derivative
16 wage statement claim. See Maldonado, 22 Cal. App. 5th at 1337 ("[T]he absence of accurate wages
17 eamed will be remedied by the violated wage and hour law itself," not by Section 226)^. Fundamentally,
18 given the ample statutory remedies Plaintiff seeks for the alleged off-the-clock work, permitting Plaintiff
19 to proceed on his derivative claim risks exactly the type of "unintentional double recovery" that
20 Maldonado soundly counsels against. Id. at 1336.
21 ///
22 ///
23 ///
24 /// • " .-- .
25 777^ - • -• - - - -
26
27 ^ If the Court determines Plaintiffs derivative Wage: Statements claim may proceed in light of the Court's decision to certify
the single question as to the Clock-In Claim, then, in the altemative, HNCA respectfully requests that certification be limited
28 to the question: Can injury be presumed where "total hours worked" and "number of hours worked at each hourly rate" are
omitted from wage statements? Lab. Code §§ 226(a)(2),(9),(e)(2)(B)(i).
5 CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERFVATTVE CLAIMS SHOULD BE PERMITTED
1 IV. CONCLUSION
2 Based on the foregoing, HNCA respectfully requests the Court to affirm its tentative mling to
3 deny class certification on Plaintiffs fourth claim regarding wage statemerits.
4
5 DATED: September 6, 2019 GREENBERG TRAURIG, LLP
6
7 By
Timothy J. Long
8
Attomeys for Defendants HEALTH NET OF
9 CALIFORNIA, INC.
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CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERTVATTVE CLAIMS SHOULD BE PERMITTED
1 Andrea Spears, et al. vs. Health Net of Califomia. Inc.
Sacramento County Superior Court Case No. 34-2017-00210560
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or interested in this
4 action. I am employed in the County of Sacramento, State of Califomia and my business address is
Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814.
5
On this day, 1 caused to be served the following docurnent(s):
6
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE
7 PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226
8 By placing CH the original ^ a tme copy into sealed envelopes addressed and served as follows:
9 Norman Blumenthal
BLUMENTHAL, NORDREHAUG & Attorneys for PlaintiffAndrea Spears
10 BHOWMIK LLP
2255 Calle Clara
11 La Jolla, CA 92037
Email: norm@bamlawca.com
12 Telephone: (858) 551-1223
Facsimile: (858) 551-1232
13
14 Shaun Setareh
H. Scott Leviant Attorneys for Plaintiff Tomas R. Arana
15 SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
16 Beverly Hills, CA 90212
Email: shaun@setarehlaw.com
17 scott@setarehlaw.com
Telephone: (310)888-7771
18 Facsimile: (310)888-0109
19 ^ BY MAIL: I am familiar with this firm's practice whereby the mail, after being placed in a
designated area, is given fully prepaid postage and is then deposited with the U.S. Postal Service at
20 Sacramento, Califomia, after the close of the day's business;
21 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is
tme and correct.
22
Executed on September 6, 2019, at Sacramento, Califomia.
23
24
25 Marlene Celis_
26
27
28
CASE NO. 34-2017-00210560-CU-OE-GDS
DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED
Preview
1 Timothy J. Long (SBN CA 137591) GREENBERG TRAURIG, LLP 2 1201 K Street, Suite 1100 Sacramento, Califomia 95814 3 Telephone: 916.442.1111 Facsimile: 916.448.1709 4 longt@gtlaw.com FILED/EMDORSED 5 Jonathan S. Sack (SBN CA 271286) GREENBERG TRAURIG, LLP SEP 6 2019 6 Four Embarcadero Center, Suite 3000 San Francisco, Califomia 94111 By:. H. Pnrtalan/a 7 Telephone: 415.655.1300 Deputy Clerk Facsimile: 415.707.2010 8 sackj @gtlaw.com 9 Attomeys for Defendants HEALTH NET OF CALIFORNL\, INC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 14 ANDREA SPEARS, an individual, on behalf of CASE NO. 34-2017-00210560-CU-OE-GDS herself and on behalf of all persons similarly 15 situated, DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE 16 Plaintifif, PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 17 18 HEALTH NET OF CALIFORNIA, INC., a DATE: September 6, 2019 Califomia corporation; and DOES 1 through 50, JUDGE: Hon. Alan A. Perkins 19 inclusive, DEPT: 35 20 Defendants. 21 22 TOMAS R. ARANA, on behalf of himself, all others similariy situated, 23 Plaintiff, 24 25 HEALTH NET OF CALIFORNLA, INC., a 26 Califomia corporation; and DOES 1-50, 27 inclusive. 28 Defendant. 1 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERTVATIVE CLAIMS SHOULD BE PERMITTED 1 I. INTRODUCTION 2 Plaintiff TOMAS R. ARANA's ("Plaintiff") Motion for Class Certification for violations under 3 Labor Code section 226 seeking penalties for inaccurate wage statements is not supported by law. The 4 Court properly denied class certification on this claim in its tentative mling and should so affirm. At the 5 August 30, 2019 hearing (the "Hearing") on Plaintiffs Motion, Defendant HEALTH NET OF 6 CALIFORNLA, INC. ("HNCA" or "Defendant") stated that current Califomia law supports its position 7 that Plaintiffs derivative wage statement claims could not be pursued, either individually or as a class. 8 Because Maldonado v. Epsilon Plastics, Inc. holds that a derivative claim for wage statement violations 9 fails as a matter of law absent a showing of injury. Plaintiffs Motion on his derivative wage statement 10 claim must also fail. 22 Cal. App. 5th 1308 (Cal. Ct. App. 2018). 11 II. FACTS AND PROCEDURAL HISTORY 12 On December 21, 2018, Plaintiff filed a Motion for Class Certification on five wage and hour 13 causes of action: (1) Failure to Provide Meal Periods (Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) 14 Failure to Provide Rest Periods (Lab. Code §§ 204, 223, 226.7, and 1198); (3) Failure to Pay Hourly 15 Wages (Lab. Code §§ 223, 510, 1194, 1194.2, 1197, 1997.1, and 1198); (4) Failure to Provide Accurate 16 Written Wage Statements (Lab. Code §§ 226(a)); and (5) Failure to Timely Pay All Final Wages (Lab. 17 Code §§ 201-203.) On Febmary 15, 2019, HNCA opposed Plaintiffs Motion and Plaintiff filed his Reply 18 on March 15, 2019. Only Claim No. 4 is at issue in this brief 19 On August 29, 2019, the Court issued a tentative mling on F'laintiff s Motion. The Court denied 20 Plaintiffs three foundational claims and, as a result, concluded that Plaintiffs Motion fails on the 21 derivative claims as well. (8/30/19 Tent. Ruling., p. 6.) The Court, however, certified a question as to 22 whether HNCA's timekeeping system prevented an accurate capture of the putative class members' start 23 times (the "Clock-In Claim"). Accordingly, the Court denied Plaintiffs Motion save for the single 24 question the Court determined was suitable for class treatment. 25 At the August 30, 2019 hearing, the Court affirmed the tentative mling on iPlaintifFs Motion with 26 one clarification, i.e., the Court would consider whether Plaintiffs derivative Wage Statements claim 27 could proceed in light of the Court's decision to certify this single question. (See 8/30/19 Tentative 28 Ruling; 9/04/19 Min. Order.) The Court allowed HNCA to provide supplemental briefing on the issue of • [ 2 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERPVATTVE CLAIMS SHOULD BE PERMITTED 1 class certification of the derivative Wage Statements claim, and Plaintiff would be pennitted to submit a 2 rebuttal thereto seven days later, 3 in. ARGUMENT 4 Plaintiffs motion for class certification of alleged violations of Labor Code section 226 must fail 5 because such derivative claims cannot be maintained where, as here, any alleged wage statement 6 inaccuracies do not give rise to an injury. 7 A. The 2018 California Court of Appeal Case Maldonado v. Epsilon Plastics, Inc Held 8 that a Derivate Claim for Wage Statement Violations Must Fail 9 In Maldonado v. Epsilon Plastics, Inc., 22 Cal. App. 5th 1308 (Cal. Ct. App. 2018), the employer 10 improperly adopted an Altemative Workweek Schedule ("AWS"), resulting in overtime violations for the 11 last two hours of employees' shifts. Given that the wage statements, in tum, "did not properly indicate 12 that the ninth and 10th hours were overtime," the trial court awarded penalties for inaccurate wage 13 statements under Labor Code section 226 of the Labor Code - in addition to unpaid overtime, interest, 14 waiting time penalties, and attomey's fees. Id. at 1312, 1334. 15 The Court of Appeal reversed because "inaccurate wage statements alone do not justify penalties; 16 the plaintiffs must establish injury flowing from the inaccuracy." Id. at 1334; id. at 1335 ("Wage 17 statement penalties are awarded only to employees who suffer injury 'as a result of a knowing and 18 intentional failure by an employer tp comply with subdivision (a).'") (quoting Lab. Code § 226 (e)(1). 19 The court concluded that the plaintiffs failed to establish that they suffered an injury as a result of 20 inaccurate wage statements for two reasons. 21 First, plaintiffs' injuryflowednot from the inaccurate wage statements but from the employer's 22 improperly adopted AWS. That the AWS "ultimately tumed out to be invalid mandates that the 23 employees receive unpaid overtime, interest, and attomey's fees.... It does not mandate that they also 24 receive penalties for the wage statements which accurately reflected their compensation...." Id. at 1337. 25 And second, the court found that injury was not presumed as a matter of law under subdivision 26 226(e)(2)(B)(i). That provision provides: 27 An employee is deemed to suffer injury for purposes of this subdivision if 28 the employer fails to provide accurate and complete information as 3 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED 1 required by any one or more of items (1) to (9), inclusive, of subdivision (a) and the employee cannot promptly and easily determine from the wage 2 statement alone one or more of the following: 3 (i) The amount of the gross wages or net wages paid to the employee 4 during the pay period or any of the other information required to be provided on the itemized wage statement pursuant to items (2) to (4), 5 inclusive, (6), and (9) of subdivision (a).' 6 Lab. Code § 226(e)(2)(B)(i). The court rejected the plaintiffs' argument that injury should be presumed 7 because the missing information fell into category (a)(9) - "all applicable hourly rates in effect during the 8 pay period and the corresponding number of hours worked at each hourly rate by the employee" id. at § 9 226(a)(9) - given that "in hindsight, the employees legally worked eight hours at the regular time rate 10 and four hburs at the overtime rate (for each 12-hour shift), but the paystub indicated they worked 10 11 hours at the regular rate and two hours at the overtime rate." Maldonado, 22 Cal. App. 5th at 1336. 12 The court dismissed this argument as "illogical to think [that] this is what the legislature 13 intended." Id. Plaintiffs' "counterargument boils down to the proposition that any failure to pay 14 overtime at the appropriate rate also generates a wage statement injury justifying the imposition of wage 15 statement penalties—an apparent unintentional double recovery."" Id. (emphasis added). 16 The court found support in the legislative intent for its conclusion that injury is not presumed 17 when a wage statement fails to include wages "eamed" but is presumed when the statement excludes 18 "hours worked." 19 The purpose of section 226 is to "document the paid wages to ensure the 20 employee is fully informed regarding the calculation of those wages." (Soto V. Motel 6 Operating, L.P. (2016) 4 Cal.App.5th 385, 392 [208 Cal. 21 Rptr. 3d 618].) "'"The purpose of requiring greater wage stub information is to insure that employees are adequately informed of compensation 22 received and are not shortchanged by their employers'" (quoting Assem. 23 Com. on Labor and Employment, Analysis of Sen. Bill No. 1255 (2011- 2012 Reg. Sess.) as amended May 15, 2012, p. 3, italics added).)" (Ibid.) 24 7c?. at 1337. 25 26 27 ' "Items (2) to (4), inclusive, (6), and (9) of subdivision (a)" set forth the requirement that wage statements contain: "total hours worked" (item 2);" the number of piece rate units eamed and any applicable piece rate..." (item 3); "all deductions..." 28 (item 4); the pay period (item 6); and "all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate by the employee..." (item 9). Lab. Code § 226(a). • , 4 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED 1 B. Class Certification of Plaintiffs Derivative Claim for Wage Statement Violations 2 Should be Denied. 3 The instant case is analogous to Maldonado. As an initial matter, substantial evidence supports 4 HNCA's position that its timekeeping procedures fully enable employees to accurately capture all hours 5 worked, including their start times. Even assuming arguendo both that this were not the case and that the 6 result was inaccurate wage statements. Plaintiffs derivative wage statement claim still should be denied 7 because Plaintiff "must establish injury flowing from the inaccuracy." Maldonado, 22 Cal. App. 5th at 8 1336. Plaintiff cannot establish such an injury here. As in Maldonado, any injury to Plaintiff would flow 9 not from allegedly inaccurate wage statements but from HNCA's allegedly non-compliant timekeeping 10 practices that, according to Plaintiff, resulted in uncompensated work. On this basis alone. Plaintiffs 11 derivative wage statement claim should be dismissed. 12 Nor can Plaintiff establish that injury is presumed as a matter of law under subdivision 13 226(e)(2)(B)(i); Plaintiff appears to argue that his derivative claim should proceed because the wage 14 statements allegedly do not reflect his clock-in time. This too is inconsistent with Maldonado in that the 15 remedy for Plaintiffs injury, if any, stems from Plaintiffs foundational claims, not from his derivative 16 wage statement claim. See Maldonado, 22 Cal. App. 5th at 1337 ("[T]he absence of accurate wages 17 eamed will be remedied by the violated wage and hour law itself," not by Section 226)^. Fundamentally, 18 given the ample statutory remedies Plaintiff seeks for the alleged off-the-clock work, permitting Plaintiff 19 to proceed on his derivative claim risks exactly the type of "unintentional double recovery" that 20 Maldonado soundly counsels against. Id. at 1336. 21 /// 22 /// 23 /// 24 /// • " .-- . 25 777^ - • -• - - - - 26 27 ^ If the Court determines Plaintiffs derivative Wage: Statements claim may proceed in light of the Court's decision to certify the single question as to the Clock-In Claim, then, in the altemative, HNCA respectfully requests that certification be limited 28 to the question: Can injury be presumed where "total hours worked" and "number of hours worked at each hourly rate" are omitted from wage statements? Lab. Code §§ 226(a)(2),(9),(e)(2)(B)(i). 5 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERFVATTVE CLAIMS SHOULD BE PERMITTED 1 IV. CONCLUSION 2 Based on the foregoing, HNCA respectfully requests the Court to affirm its tentative mling to 3 deny class certification on Plaintiffs fourth claim regarding wage statemerits. 4 5 DATED: September 6, 2019 GREENBERG TRAURIG, LLP 6 7 By Timothy J. Long 8 Attomeys for Defendants HEALTH NET OF 9 CALIFORNIA, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERTVATTVE CLAIMS SHOULD BE PERMITTED 1 Andrea Spears, et al. vs. Health Net of Califomia. Inc. Sacramento County Superior Court Case No. 34-2017-00210560 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or interested in this 4 action. I am employed in the County of Sacramento, State of Califomia and my business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814. 5 On this day, 1 caused to be served the following docurnent(s): 6 DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE 7 PERMITTED FOR ALLEGED VIOLATIONS OF LABOR CODE SECTION 226 8 By placing CH the original ^ a tme copy into sealed envelopes addressed and served as follows: 9 Norman Blumenthal BLUMENTHAL, NORDREHAUG & Attorneys for PlaintiffAndrea Spears 10 BHOWMIK LLP 2255 Calle Clara 11 La Jolla, CA 92037 Email: norm@bamlawca.com 12 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 13 14 Shaun Setareh H. Scott Leviant Attorneys for Plaintiff Tomas R. Arana 15 SETAREH LAW GROUP 9454 Wilshire Boulevard, Suite 907 16 Beverly Hills, CA 90212 Email: shaun@setarehlaw.com 17 scott@setarehlaw.com Telephone: (310)888-7771 18 Facsimile: (310)888-0109 19 ^ BY MAIL: I am familiar with this firm's practice whereby the mail, after being placed in a designated area, is given fully prepaid postage and is then deposited with the U.S. Postal Service at 20 Sacramento, Califomia, after the close of the day's business; 21 I declare under penalty of perjury under the laws of the State of Califomia that the foregoing is tme and correct. 22 Executed on September 6, 2019, at Sacramento, Califomia. 23 24 25 Marlene Celis_ 26 27 28 CASE NO. 34-2017-00210560-CU-OE-GDS DEFENDANT HNCA'S BRIEF AS TO WHY NO DERIVATIVE CLAIMS SHOULD BE PERMITTED