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SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 02/26/2019 TIME: 03:45:00 PM DEPT: 54
JUDICIAL OFFICER PRESIDING: Christopher Krueger
CLERK: G. Toda
REPORTER/ERM:
BAILIFF/COURT ATTENDANT:
CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017
CASE TITLE: Spears vs. Health Net of California Inc
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion for Summary Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
Nature of Proceeding: Ruling on Submitted Matter-(Motion for Summary Adjudication)- Taken
Under Submission 2/15/19
TENTATIVE RULING
Defendant Health Net of California, Inc.'s ("HNCA") Renewed Motion for Summary Adjudication is
DENIED.
On September 27, 2018, Defendant's previous motion for summary adjudication was heard and taken
under submission. The Court issued its ruling on submitted matter on October 23, 2018, denying
Defendant's motion in part and granting it in part.
On November 19, 2018, Defendant filed the instant "Renewed" Motion for Summary Adjudication.
Defendant's Notice of Motion states that this "Renewed" Motion for Summary Adjudication is filed
pursuant to Code of Civil Procedure § 437c(f)(2) and § 1008(b).
Legal Standards
"[A] party is prohibited from making, and the trial court from granting, a motion for reconsideration unless
the requirements of [Code of Civil Procedure] sections 437c, subdivision (f)(2), or 1008 are satisfied."
(New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 (citing Le Francois v. Goel
(2005) 35 Cal.4th 1094, 1096, 1108).)
Before this Court can consider the merits of Defendant's "Renewed" motion, the threshold question is
whether the motion complies with either section. Section 437c(f)(2) allows the filing of a second or
renewed motion for summary adjudication only if there is a showing of "newly discovered facts" or law.
(Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827.) Section 1008
allows a previously-denied motion to be reconsidered based on "new or different facts." (Le Francois v.
Goel (2005) 35 Cal.4th 1094 (the requirements of section 1008 can be applied to a second motion for
summary judgment).)
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CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
Both Code of Civil Procedure § 1008(b) and § 437c(f)(2) "authorize the new motion under prescribed
circumstances[,] but Code of Civil Procedure section 1008, subdivision (b) does not purport to authorize
a new summary judgment motion that does not comply with the requirements for such motions set out in
Code of Civil Procedure section 437c." (UAS Management, Inc. v. Mater Misericordiae Hospital (2008)
169 Cal.App.4th 357, 367-368.) Accordingly, second/renewed motions for summary judgment may be
brought only if they comply with Code of Civil Procedure § 437c(f)(2) and the other requirements of
section 437c. (Id.)
Defendant's moving papers do not assert that the Renewed motion is based on "new law;" therefore the
Court's analysis focuses on whether the Renewed motion is based on "newly discovered facts" and/or
"new or different facts."
Discussion
Defendant's Moving Papers Do Not Make The Showing Required By Code of Civil Procedure §
1008(b)
Under section 1008(b), "[a] party who originally made an application for an order which was refused in
whole or part, or granted conditionally or on terms, may make a subsequent application for the same
order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit
what application was made before, when and to what judge, what order or decisions were made, and
what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with
this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte
motion." (Code Civ. Proc. § 1008(b) (emphasis added).) Under subdivision (b), a party may renew its
application for the same order after the court has refused the original application, and no express time
limit is imposed.
Further, pursuant to governing case law, when making a second application for an order that was
previously denied, the moving party must show not only the existence of new facts, law or
circumstances, but also that the new evidence could not, with reasonable diligence, have been
discovered prior to the original motion. (Even Zohar Construction & Remodeling, Inc. v. Bellaire
Townhouses, LLC (2015) 61 Cal.4th 830, 839 ("Courts have construed section 1008 to require a party
filing an application for reconsideration or a renewed application to show diligence with a satisfactory
explanation for not having presented the new or different information earlier."); New York Times Co. v.
Superior Court (2005) 135 Cal.App.4th 206, 212-213.)
Where a moving party "easily could have obtained" the proffered "new" evidence previously, or had the
"new" evidence in its possession since the outset of litigation, the evidence is not truly "new" for
purposes of section 1008. (New York Times, 135 Cal.App.4th at 213-14 ("The burden under section
1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence:
the information must be such that the moving party could not, with reasonable diligence, have
discovered or produced it at the trial.").) The court in New York Times held that the proffered "new"
deposition testimony did "not constitute new or different facts within the meaning of section 1008"
because "[a]lthough the evidence was new to the trial court, it was available to WSN throughout the
discovery process and was easily obtainable," and the failure to include it with the original filing rendered
it as "not the type of 'new or different facts, circumstances, or law' that would justify reconsideration." (Id.
at 212-13 (citing Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 692 (plaintiff's
belief that certain evidence was not necessary at hearing on summary judgment motion insufficient to
justify reconsideration], disapproved on another ground in Navellier v. Sletten (2002) 29 Cal.4th 82).)
The court further held that "[e]ven if this evidence somehow could be considered 'new,' [the moving
party] failed to provide a satisfactory explanation for its failure to present it earlier." (Id.)
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The burden on the moving party is to provide "a satisfactory explanation for failing to provide the
evidence earlier, which can only be described as a strict requirement of diligence." (Garcia v. Hejmadi
(1997) 58 Cal.App.4th 674, 690.) The court in Garcia held that "section 1008's reference to 'new or
different' facts [does] not make the section's prerequisites less restrictive. [Section 1008 requires a]
threshold showing of diligence which has long required an 'explanation' of why the 'newly discovered'
matter was not presented earlier. Garcia would have us say this requirement is met by anything not
previously 'presented' to the court. The miserable result would be to defeat the Legislature's stated goal
of reducing the number of reconsideration motions and would remove an important incentive for parties
to efficiently marshal their evidence." (Id. at 688-89.) The court further found that "[t]he information
consisting of Garcia's own declared knowledge was obviously always within his possession, and no
satisfactory explanation appeared for not bringing it out earlier," such that it was not the sort of "new"
evidence required by section 1008. (Id. at 690.)
The purpose of section 1008 is to limit the filing of multiple motions to those circumstances in which the
party has a valid reason for not having offered the new law or evidence previously. (Baldwin v. Home
Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.)
"Whether the 'new' facts alleged on a motion for renewal are sufficient to satisfy the requirements of
section 1008, subdivision (b), is a question confided to the sound discretion of the trial court." (Graham v.
Hansen (1982) 128 Cal.App.3d 965, 971 (upholding trial court's granting of a renewed motion for
summary judgment where new facts were submitted via an interrogatory response and a declaration).)
Here, Defendant's moving papers make no attempt to explain why the more specific "new" declarations
from its personnel could not have been obtained previously and included in Defendant's original motion
for summary adjudication. (See New York Times, 135 Cal.App.4th at 212-213; Garcia, 58 Cal.App.4th at
690.) Defendant's moving papers offer no "satisfactory explanation for failing to provide the evidence
earlier," and therefore Defendant has not complied with the "strict requirement of diligence" required for
reconsideration under section 1008(b). (See Garcia, 58 Cal.App.4th at 690.) While Defendant's
proffered "new" evidence is perhaps new to the trial court, as in New York Times, nevertheless
Defendant has not shown that such evidence was unavailable to it at the time the original summary
adjudication motion was filed. (See New York Times, 135 Cal.App.4th at 212-13.)
Accordingly, the requested reconsideration pursuant to Code of Civil Procedure § 1008(b) must be
DENIED.
Further, "in order to grant reconsideration on its own motion" where the requirements of section 1008(b)
were not fully satisfied (i.e., using the court's inherent authority under Le Francois), "the trial court must
conclude that its earlier ruling was wrong, and change that ruling based on the evidence originally
submitted. Thus, our ruling does not permit parties to obtain reconsideration relying on evidence that
could and should have been, but was not, presented to the court in connection with the original motion."
(In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314 (emphasis in Barthold).)
To the extent Defendant's motion might have given the Court reason to reconsider its previous denial of
summary adjudication, the Court cannot find that such denial was erroneous based on the evidence
originally submitted.
Defendant's Moving Papers Do Not Make The Showing Required by Code of Civil Procedure §
437c(f)(2)
While courts analyzing whether to reconsider a prior ruling under section 1008(b) have required a
showing a "strict requirements of diligence" and an explanation for why "new" facts were not previously
presented, courts analyzing whether to permit the filing of a second summary adjudication motion under
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section 437c(f)(2) have not imposed a "diligence" requirement.
Under section 437c(f)(2), "[a] party shall not move for summary judgment based on issues asserted in a
prior motion for summary adjudication and denied by the court unless that party establishes, to the
satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the
issues reasserted in the summary judgment motion." (Code Civ. Proc. § 437c(f)(2) (emphasis added).)
As long as the second motion truly contains "newly discovered facts" and is not merely a "reformatted,
condensed, and cosmetically repackaged" version of its first motion, the court will have discretion to
consider it. (Patterson, 155 Cal.App.4th 821, 827 (applying Bagley, 73 Cal.App.4th at 1097 (second
motion showed no new law and no new material facts in separate statement)).) Thus, a second motion
will be allowed if it is based on newly discovered facts that were not included in the first motion.
(Patterson, 155 Cal.App.4th 821, 827 (citing Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726,
739; Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1097 (second motion for summary judgment was
improper because it showed no new law and listed no new material facts in the separate statement);
Pender v. Radin (1994) 23 Cal.App.4th 1807, 1811-12 (holding that second motion for summary
adjudication was proper because it was based on newly-discovered facts from depositions taken in
discovery after first motion for summary adjudication was denied)); see also Marshall v. County of San
Diego (2015) 238 Cal.App.4th 1095, 1106-07 (a court has the authority to permit a party to file a second
motion for summary adjudication, as long as it is "supported by evidence that was not presented in
connection with the prior motion.") (citing Le Francois, 35 Cal.4th at 1105; In Re Marriage of Barthold
(2008) 158 Cal.App.4th 1301, 1314).)
Further, as long as the second motion presents issues different from those presented in the first motion,
the second motion can satisfy section 438c(f)(2). (Patterson, 155 Cal.App.4th at 827 (holding that
second motion complied with section 437c(f)(2) because although "both motions for summary judgment
involved 'duty' in a general sense, the District's two motions were not identical and involved different
legal theories. The first motion focused on whether there was a statutory basis for imposing a duty; the
second motion focused on whether the common law defense of assumption of risk applied to negate any
claim of duty.").) Thus, a second motion for summary judgment must also be based on issues that
were not raised in the previous motion that was denied. (Nieto v. Blue Shield of Calif. Life & Health
Ins. Co. (2010) 181 Cal.App.4th 60, 72 (insurer's earlier motion did not address plaintiff's fraud in
obtaining coverage, which was basis for later motion).)
The question before the Court is whether the "Renewed" MSA presents newly discovered facts and
does more than repackage the same issues and arguments raised in Defendant's original motion.
Defendant's "Renewed" Motion Makes No Showing That The Updated Declarations From Rodes, Colia,
and Sarabia Constitute "Newly Discovered" Facts
Defendant's attorney Nicholas J. Horton filed his own declaration in support of the instant "Renewed"
Motion. Attorney Horton's Declaration states broadly that the "Renewed" motion is based on "the
additional facts and evidence [Defendant] determined were necessary" after the original motion was
denied in part. (Horton Decl. ¶¶ 11-12.) Horton does not specifically identify any pieces of evidence that
were newly discovered after the original motion was denied in part. Horton declares, in pertinent part:
On October 23, 2018, the Court entered an order denying HNCA's motion with respect to the cash
benefits claim and the "bonus" claims on the grounds raised for the first time in Spears's Amended
Opposition papers, despite Plaintiff Arana's lack of opposition to the motion. A true and correct copy of
the Court's October 23, 2018 Minute Order is attached as Exhibit D.
Given that the Court found that HNCA did not meet its burden of production based on evidence and
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supporting facts that Plaintiffs initially did not dispute, and given that Plaintiff Spears's repackaged
disputes raised concerns with the Court as to the definition of terms used in HNCA's evidence and
supporting facts (again, terms that were not initially in dispute), HNCA presents these issues to the Court
with the additional facts and evidence it determined were necessary, so that a ruling on the merits of
these issues can be reached.
(Declaration of Nicholas J. Horton ("Horton Decl.") ¶¶ 11-12.)
Plaintiff contends that the motion does not comply with sections 437c(f)(2), in that Defendant has failed
to present "newly discovered" evidence or facts.
Defendant argues that as long as the moving party "presents new facts to the court" that were not
presented in the original motion, the moving party's "renewed" motion will be proper. (Reply at 2-4
(citing Bagley, 73 Cal.App.4th 1092, 1097).) Defendant argues that the evidence need not be newly
"discovered," because as long as the new facts were simply "not included in the prior motion for
summary adjudication," the motion "does not violate Section 427c(f)(2)." (Reply at 4.)
The Court agrees with Plaintiffs. The plain text of section 437c(f)(2) expressly requires "newly
discovered facts." (Code Civ. Proc. § 437c(f)(2) (emphasis added).)
Here, Defendant's proffered "new" facts/evidence are declarations from the same defense personnel
who provided declarations in connection with the original motion - Diane Rodes (HNI's Director of
Human Resources), Debbie Colia (HNI's Vice President of Organizational Effectiveness), and Kelly
Sarabia (Payroll Director for Centene Corporation and formerly for HNI prior to its merger with Centene).
(Compare Rodes, Colia, and Sarabia Declarations filed 2/5/18 at Register of Actions ("ROA") No. 103
with Rodes, Colia, and Sarabia Declarations filed 11/19/18 at ROA No. 283.) The "new" Rodes
Declaration is more specific than the previously-filed declaration from Rodes, and Paragraphs 15-16 of
the "new" Colia Declaration appears intended to address the evidentiary gap that this Court found
prevented summary adjudication for Defendant on its original motion. Sarabia's "new" Declaration is
mostly identical to her previously-filed Declaration, except that the previously-repeated phrase "HNCA
paid out" -- which this Court specifically found to give rise to a dispute of material fact in ruling on the
original motion -- has been omitted.
Defendant has not shown that the more detailed "new" declarations rise to the level of "newly discovered
facts" rather than facts that have always been in Defendant's possession yet were simply not included in
the original motion. Courts have rejected attempts to frame previously-available and easily-obtainable
evidence as "new" simply because it was not previously shown to the court with the original motion.
(See e.g. New York Times, 135 Cal.App.4th at 212-213 (albeit in the context of a section 1008 analysis
and not a section 437c(f)(2) analysis: "[a]lthough the evidence was new to the trial court, it was available
to WSN throughout the discovery process and was easily obtainable, as demonstrated by the April 1
depositions. WSN (and certainly C2B), were or should have been aware of the details about the online
ad campaign from its inception. WSN failed to include any of this information in its opposition to the
summary judgment motion, or even mention it to the court until the end of the hearing, when it appeared
that the court would rule against it. This evidence was not the type of 'new or different facts,
circumstances, or law' that would justify reconsideration."); see also Garcia, 58 Cal.App.4th at 690 (also
in the section 1008 context and not the section 437c(f)(2) context.)
There has been no showing as to when Defendant "discovered" the information contained in the "new,"
updated declarations from its own personnel who previously filed declarations in support of the original
motion. Defendant has therefore not shown that the facts asserted in these declarations can accurately
be described as "newly discovered facts" such that they satisfy the plain text of section 437c(f)(2).
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Ultimately, Defendant has not shown that the proffered "new" facts are the sort of "newly discovered"
facts required by sections 437c(f)(2).
The Issues In The "Renewed" Motion Are Substantively The Same As Those Raised in First Motion
Moreover, even if the instant motion could be said to include "newly discovered" facts, the Court finds
that the legal issues in the "Renewed" Motion are substantively the same issues that were presented in
the original motion. The "Renewed" Motion raises the same legal arguments from, and is merely a
"repackaged" version of, the original motion. (See Patterson, 155 Cal.App.4th 821, 827 (applying
Bagley, 73 Cal.App.4th at 1097 (second motion showed no new law and no new material facts in
separate statement)).)
The Notice of Motion for the original Motion for Summary Adjudication sets out the following issues, in
pertinent part:
The Third Cause of Action for Failure to Pay Hourly and Overtime Wages:
Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include cash
benefits received in lieu of medical payment in Plaintiff Spears' regular rate of pay for purposes of
computing overtime pay fails because cash benefits received by Plaintiff Spears as a result of her waiver
of medical coverage were properly excluded from her regular rate calculation under the Benefit-Plan
Contributions Exception.
Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include bonuses
awarded to Plaintiffs in the regular rate of pay calculation fails because Plaintiff Spears did not receive a
single bonus payment and HNCA appropriately allocated bonus payments in determining the regular
rate for Plaintiff Arana.
[. . .]
The Seventh Cause of Action for Civil Penalties Pursuant to Labor Code §§ 2698, et seq. (PAGA):
Plaintiffs' claim for PAGA penalties based on alleged failure to pay overtime wages as a result of alleged
failure to include cash benefits received in lieu of medical payment in Plaintiff Spears' regular rate of pay
fails because cash benefits received by Plaintiff Spears as a result of her waiver of medical coverage
were properly excluded from her regular rate calculation under the Benefit-Plan Contributions Exception.
Plaintiffs' claim for PAGA penalties based on alleged failure to pay overtime wages as a result of alleged
failure to include bonuses awarded to Plaintiffs in the regular rate of pay calculation fails because
Plaintiff Spears did not receive a single bonus payment and HNCA appropriately allocated bonus
payments in determining the regular rate for Plaintiff Arana.
(Notice of Motion for original MSA, ROA No. 100.)
The Notice of Motion for the "Renewed" Motion sets out what are substantively the same issues:
The Third Cause of Action for Failure to Pay Hourly and Overtime Wages:
Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include cash
benefits received pursuant to a bona fide benefits Plan in Plaintiff Spears' regular rate of pay fails
because cash benefits were properly excluded from her regular rate calculation under the Benefit-Plan
Contributions Exception and Plaintiff Arana never received the cash benefit.
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Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include SPOT
payments in the regular rate of pay fails because SPOT payments were properly accounted for in the
regular rate calculation.
Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include ACA
Incentive Plan payments in the regular rate of pay fails because those payments were properly
accounted for in the regular rate calculation.
Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include Wellness
Incentive payments in the regular rate of pay fails because those payments are not bonuses and were
properly excluded from the regular rate.
The Seventh Cause of Action for Civil Penalties Pursuant to Labor Code § 2698, et seq. (PAGA):
Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as a result of alleged failure to
include cash benefits received by Plaintiff Spears in her regular rate of pay fails because the underlying
alleged Labor Code violation did not occur.
Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as alleged failure to include SPOT
cash awards awarded to Plaintiff Arana in the regular rate of pay calculation fails because the underlying
alleged Labor Code violation did not occur.
Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as alleged failure to ACA
Incentive Plan payments awarded to Plaintiff Arana in the regular rate of pay calculation fails because
the underlying alleged Labor Code violation did not occur.
Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as alleged failure to include
Wellness Incentive payments made to Plaintiff Arana in the regular rate of pay calculation fails because
the underlying alleged Labor Code violation did not occur.
(Notice of Motion for Renewed Motion for Summary Adjudication, ROA No. 280.)
Across both motions, then, Defendants seek a ruling that the Benefits-Plan Contributions Exception
applies to cash paid out to employees who decline medical coverage. Also across both motions,
Defendants seek a ruling that certain payments to employees should not be considered "bonuses" that
would have to be included when calculating overtime pay. While the "Renewed" Motion splits up the
previously-raised "bonus" issue into three separate issues divided by the name of the alleged "bonus,"
this constitutes a repackaging of the same "bonus" issue from the original motion. (See Patterson, 155
Cal.App.4th at 827.)
In Patterson, the trial court permitted the filing of a second dispositive motion because it raised different
issues than the first motion. In upholding the lower court's consideration of the second motion, the Third
District Court of Appeal explained that, while both motions for summary judgment raised the issue of
"duty," the two motions actually "involved different legal theories" because "[t]he first motion focused on
whether there was a statutory basis for imposing a duty; the second motion focused on whether the
common law defense of assumption of risk applied to negate any claim of duty." (Patterson, 155
Cal.App.4th at 827.) The appellate court held that "[a] comparison of the arguments and material facts
shows that the District's second motion for summary judgment is not simply a 'reformatted, condensed,
and cosmetically repackaged' version of its first motion." (Id.)
In Nieto, the appellate court found that the trial court properly considered the second dispositive motion
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because it "addressed an issue not raised by the prior motion. Indeed, in its order denying the prior
motion the trial court expressly stated that the motion's failure to address the elements of fraud was the
basis for its denial. The operative summary judgment motion addressed this previously omitted issue,
asserting that Blue Shield was entitled to judgment because appellant committed fraud on the
application and specifically identified the elements of fraud established by the undisputed evidence."
(Nieto, 181 Cal.App.4th 60, 72-73.)
Here, Defendant's motion raises substantively the same "Benefits Plan Contribution Exception"
argument across both motions, as well as the same "bonus" argument (albeit repackaged into three
separate "issues"). Defendant's "Renewed" Motion is simply not akin to the one deemed permissible in
Patterson, i.e., where the previously-denied "statutory basis for imposing a duty" argument was
completely replaced by an argument about whether the defense of "assumption of risk" could negate
any claim of duty. (See Patterson, 155 Cal.App.4th at 827; Bagley, 73 Cal.App.4th at 1097.)
Defendant's "Renewed" Motion is not akin to the one deemed permissible in Nieto, where the first
motion failed to raise the issue of fraud, such that the second motion could properly raise it for the first
time. (See Nieto, 181 Cal.App.4th 60, 72-73.)
Having failed to comply with Code of Civil Procedure § 437c(f)(2) and the jurisdictional requirements of
Code of Civil Procedure § 1008(b), Defendant's "Renewed" motion for summary adjudication must be
DENIED.
Even If Court Could Consider The "Renewed" Motion, It Would Be Denied On Grounds It Does
Not Entirely Dispose of The Challenged Causes of Action
Defendant may argue that it would be within Court's inherent authority to reach the merits of Defendant's
"Renewed" Motion despite the Motion's failures to comply with section 437c(f)(2) and section 1008(b).
(See Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1105-1106 ("the Le Francois court
noted that the text of Code of Civil Procedure section 437c, subdivision (f)(2) restricts only a party's
ability to file a motion, and does not restrict a court's inherent authority in any manner.") (citing Le
Francois, 35 Cal.4th at 1105.)
However, even if the Court were willing to consider Defendant's "Renewed" Motion on its merits despite
its failures to comply with sections 437c(f)(2) and 1008(b), the result would be the same. The Motion
would be DENIED.
The "Renewed" Motion must be denied because it does not entirely dispose of the Third and Seventh
Causes of Action. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1124, 1135 (clarifying
that prior to 1990, courts were permitted to summarily adjudicate separate issues in a case, but the
statute no longer permitted such piecemeal adjudication).)
Here, as Plaintiff's Opposition points out, the question of whether certain cash payments should have
been included in the regular rate does not dispose of the entire Third cause of action for failure to pay
hourly wages under California Labor Code ("Cal. Lab. Code") §§ 223, 510,1194,1194.2,1197,1997.1,
and 1198; the Sixth cause of action for Unfair Competition (the "UCL"); or, the Seventh cause of action
for Civil Penalties pursuant to Cal. Lab. Code § 2698, et seq. All three of these causes of action also
contain allegations regarding wage and hour violations that are not addressed in Defendant's motion,
including Defendant's allegedly maintaining a practice of requiring employees to work during unpaid
meal periods and during paid rest periods (Consolidated Complaint, ("Consol. Compl.") ¶¶ 85, 87-90) as
well as failing to pay employees classified as exempt any overtime wages (Consol. Compl., ¶¶ 84-85).
(Opp'n at 4, 15.)
The UCL and PAGA causes of action also allege similar claims that would not be disposed of by
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Defendant's "Renewed" Motion. The UCL alleges that Defendant failed to "provide non-exempt
employees with uninterrupted, duty-free, meal periods" (Consol. Compl. ¶ 129) and the PAGA cause of
action incorporates that allegation at paragraph 139 to allege at paragraph 144 that Defendant violated
"Labor Code §§ 201,202, 203,204, 223, 226(a), 226.7, 227.3, 510, 512, 1194,1197, 1198, and 2802."
(Id. at ¶ 144.) These aspects of the Third and Seventh causes of action that would not be disposed of by
Defendant's motion for summary adjudication require denial of the Motion. (Opp'n at 4, 15.) The
"Renewed" Motion also does not identify any affirmative defense that would provide a complete defense
to any of these causes of action. (Opp'n at 4, 15.)
On Reply, Defendant argues that the Court should nevertheless grant summary adjudication under
Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854, because Plaintiffs' pleading
combines "separate and distinct" wrongful acts - such as the failure to provide compliant meal periods,
the failure to include bonuses when calculating the regular rate of pay, etc. - into a single cause of
action. (Reply at 2-3.)
The Court is not persuaded because Defendant's moving papers and Separate Statement make no
mention of Lilienthal. Regardless of whether each alleged overtime-related claim can be treated as a
separate and distinct cause of action, Defendant did not move for summary adjudication as to any of the
alleged conduct separately, and they cannot do so for the first time in their Reply. (See Lilienthal, 12
Cal.App.4th at 1854-55; see also Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001 n.2
("It is improper to raise new contentions in the reply brief.").
Moreover, with respect to Plaintiffs' overtime-related claims, whether framed as based on failure to
properly account for the "cash" payments in lieu of medical benefits or framed as failure to properly
account for other sorts of alleged "bonuses," both claims are challenges to the accuracy of Defendant's
"regular rate" calculations and are not necessarily "distinct and separate" wrongs as in Lilienthal. (See
Lilienthal, 12 Cal.App.4th at 1854-55.) Lilienthal was a legal malpractice action that arose out of legal
services provided to the plaintiffs at different times on two separate and distinct matters, involving
different properties and different opposing parties. The plaintiffs alleged two causes of action, one for
breach of contract and one for negligence. Each cause of action combined plaintiffs' claims with regard
to both matters. The defendant law firm moved for summary adjudication of one of the matters on statute
of limitations grounds. The trial court denied the motion for summary adjudication because the motion
would not completely dispose of an entire cause of action. The First District Court of Appeal vacated the
trial court's order. The court explained that "plaintiffs seek to recover damages based on two separate
and distinct obligations. Each obligation creates a separate and distinct claim. . . . There is no dispute
that the two matters have no relation to each other and involve legal services performed at different
times, with different and distinct obligations, and distinct and separate alleged damages. (Lilienthal, 12
Cal.App.4th at 1854.) Here, the overtime-related claims are all based on a single employer "obligation" -
to accurately calculate the "regular rate" when calculating overtime payments.
And because the UCL/PAGA claim is at least partially premised upon the overtime-related claims,
summary adjudication is improper as to those as well.
Because it does not completely dispose of the Third and Seventh causes of actions, even if the Court
could consider the "Renewed" Motion on it merits, the motion would have to be DENIED.
New Evidence on Reply
Defendant filed new evidence with its Reply brief: a "Reply Declaration" from Rodes, as well as blurred
and nearly illegible excerpts of transcripts from depositions with Sarabia, Colia, and Rodes that Plaintiff
took after Defendant filed its "Renewed" MSA. The Court did not consider the evidence filed for the first
time on Reply. In general, a moving party is not permitted to submit new facts and evidence in their
DATE: 02/26/2019 MINUTE ORDER Page 9
DEPT: 54 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
reply papers. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th
308 (trial court did not err in declining to consider new evidence filed with reply in support of summary
judgment motion).)
Evidentiary Objections
Plaintiffs' objections to the Sarabia, Colia, and Rodes Declarations are OVERRULED. The objections go
to the weight of the evidence, not admissibility.
Defendant did not file any evidentiary objections.
Conclusion
For all the foregoing reasons, Defendant's "Renewed" Motion for Summary Adjudication is DENIED.
Plaintiff shall prepare for this Court's signature and order pursuant to Code of Civil Procedure § 437c(g)
and CRC Rule 3.1312.
COURT RULING
The matter was argued and submitted.
The matter was taken under submission.
SUBMITTED MATTER RULING
Having considered the statements made by counsel at oral argument, the Court nevertheless AFFIRMS
the original tentative ruling. The requirements of Code of Civil Procedure section 437c(f)(2) for a
renewed motion for summary judgment are not met in this case. (Bagley v. TRW (1999) 73 Cal.App.4th
1092, 1097.) Although defendant cited language from an unpublished Court of Appeal case that
apparently did not follow the holding of Bagley v. TRW, this Court must follow published appellate
decisions and the plain wording of statutes.
DATE: 02/26/2019 MINUTE ORDER Page 10
DEPT: 54 Calendar No.
Preview
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 02/26/2019 TIME: 03:45:00 PM DEPT: 54 JUDICIAL OFFICER PRESIDING: Christopher Krueger CLERK: G. Toda REPORTER/ERM: BAILIFF/COURT ATTENDANT: CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017 CASE TITLE: Spears vs. Health Net of California Inc CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion for Summary Adjudication - Civil Law and Motion - MSA/MSJ/SLAPP ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES Nature of Proceeding: Ruling on Submitted Matter-(Motion for Summary Adjudication)- Taken Under Submission 2/15/19 TENTATIVE RULING Defendant Health Net of California, Inc.'s ("HNCA") Renewed Motion for Summary Adjudication is DENIED. On September 27, 2018, Defendant's previous motion for summary adjudication was heard and taken under submission. The Court issued its ruling on submitted matter on October 23, 2018, denying Defendant's motion in part and granting it in part. On November 19, 2018, Defendant filed the instant "Renewed" Motion for Summary Adjudication. Defendant's Notice of Motion states that this "Renewed" Motion for Summary Adjudication is filed pursuant to Code of Civil Procedure § 437c(f)(2) and § 1008(b). Legal Standards "[A] party is prohibited from making, and the trial court from granting, a motion for reconsideration unless the requirements of [Code of Civil Procedure] sections 437c, subdivision (f)(2), or 1008 are satisfied." (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212 (citing Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096, 1108).) Before this Court can consider the merits of Defendant's "Renewed" motion, the threshold question is whether the motion complies with either section. Section 437c(f)(2) allows the filing of a second or renewed motion for summary adjudication only if there is a showing of "newly discovered facts" or law. (Patterson v. Sacramento City Unified School Dist. (2007) 155 Cal.App.4th 821, 827.) Section 1008 allows a previously-denied motion to be reconsidered based on "new or different facts." (Le Francois v. Goel (2005) 35 Cal.4th 1094 (the requirements of section 1008 can be applied to a second motion for summary judgment).) DATE: 02/26/2019 MINUTE ORDER Page 1 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Both Code of Civil Procedure § 1008(b) and § 437c(f)(2) "authorize the new motion under prescribed circumstances[,] but Code of Civil Procedure section 1008, subdivision (b) does not purport to authorize a new summary judgment motion that does not comply with the requirements for such motions set out in Code of Civil Procedure section 437c." (UAS Management, Inc. v. Mater Misericordiae Hospital (2008) 169 Cal.App.4th 357, 367-368.) Accordingly, second/renewed motions for summary judgment may be brought only if they comply with Code of Civil Procedure § 437c(f)(2) and the other requirements of section 437c. (Id.) Defendant's moving papers do not assert that the Renewed motion is based on "new law;" therefore the Court's analysis focuses on whether the Renewed motion is based on "newly discovered facts" and/or "new or different facts." Discussion Defendant's Moving Papers Do Not Make The Showing Required By Code of Civil Procedure § 1008(b) Under section 1008(b), "[a] party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion." (Code Civ. Proc. § 1008(b) (emphasis added).) Under subdivision (b), a party may renew its application for the same order after the court has refused the original application, and no express time limit is imposed. Further, pursuant to governing case law, when making a second application for an order that was previously denied, the moving party must show not only the existence of new facts, law or circumstances, but also that the new evidence could not, with reasonable diligence, have been discovered prior to the original motion. (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 839 ("Courts have construed section 1008 to require a party filing an application for reconsideration or a renewed application to show diligence with a satisfactory explanation for not having presented the new or different information earlier."); New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-213.) Where a moving party "easily could have obtained" the proffered "new" evidence previously, or had the "new" evidence in its possession since the outset of litigation, the evidence is not truly "new" for purposes of section 1008. (New York Times, 135 Cal.App.4th at 213-14 ("The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.").) The court in New York Times held that the proffered "new" deposition testimony did "not constitute new or different facts within the meaning of section 1008" because "[a]lthough the evidence was new to the trial court, it was available to WSN throughout the discovery process and was easily obtainable," and the failure to include it with the original filing rendered it as "not the type of 'new or different facts, circumstances, or law' that would justify reconsideration." (Id. at 212-13 (citing Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 692 (plaintiff's belief that certain evidence was not necessary at hearing on summary judgment motion insufficient to justify reconsideration], disapproved on another ground in Navellier v. Sletten (2002) 29 Cal.4th 82).) The court further held that "[e]ven if this evidence somehow could be considered 'new,' [the moving party] failed to provide a satisfactory explanation for its failure to present it earlier." (Id.) DATE: 02/26/2019 MINUTE ORDER Page 2 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS The burden on the moving party is to provide "a satisfactory explanation for failing to provide the evidence earlier, which can only be described as a strict requirement of diligence." (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690.) The court in Garcia held that "section 1008's reference to 'new or different' facts [does] not make the section's prerequisites less restrictive. [Section 1008 requires a] threshold showing of diligence which has long required an 'explanation' of why the 'newly discovered' matter was not presented earlier. Garcia would have us say this requirement is met by anything not previously 'presented' to the court. The miserable result would be to defeat the Legislature's stated goal of reducing the number of reconsideration motions and would remove an important incentive for parties to efficiently marshal their evidence." (Id. at 688-89.) The court further found that "[t]he information consisting of Garcia's own declared knowledge was obviously always within his possession, and no satisfactory explanation appeared for not bringing it out earlier," such that it was not the sort of "new" evidence required by section 1008. (Id. at 690.) The purpose of section 1008 is to limit the filing of multiple motions to those circumstances in which the party has a valid reason for not having offered the new law or evidence previously. (Baldwin v. Home Savings of America (1997) 59 Cal.App.4th 1192, 1198-1200.) "Whether the 'new' facts alleged on a motion for renewal are sufficient to satisfy the requirements of section 1008, subdivision (b), is a question confided to the sound discretion of the trial court." (Graham v. Hansen (1982) 128 Cal.App.3d 965, 971 (upholding trial court's granting of a renewed motion for summary judgment where new facts were submitted via an interrogatory response and a declaration).) Here, Defendant's moving papers make no attempt to explain why the more specific "new" declarations from its personnel could not have been obtained previously and included in Defendant's original motion for summary adjudication. (See New York Times, 135 Cal.App.4th at 212-213; Garcia, 58 Cal.App.4th at 690.) Defendant's moving papers offer no "satisfactory explanation for failing to provide the evidence earlier," and therefore Defendant has not complied with the "strict requirement of diligence" required for reconsideration under section 1008(b). (See Garcia, 58 Cal.App.4th at 690.) While Defendant's proffered "new" evidence is perhaps new to the trial court, as in New York Times, nevertheless Defendant has not shown that such evidence was unavailable to it at the time the original summary adjudication motion was filed. (See New York Times, 135 Cal.App.4th at 212-13.) Accordingly, the requested reconsideration pursuant to Code of Civil Procedure § 1008(b) must be DENIED. Further, "in order to grant reconsideration on its own motion" where the requirements of section 1008(b) were not fully satisfied (i.e., using the court's inherent authority under Le Francois), "the trial court must conclude that its earlier ruling was wrong, and change that ruling based on the evidence originally submitted. Thus, our ruling does not permit parties to obtain reconsideration relying on evidence that could and should have been, but was not, presented to the court in connection with the original motion." (In re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314 (emphasis in Barthold).) To the extent Defendant's motion might have given the Court reason to reconsider its previous denial of summary adjudication, the Court cannot find that such denial was erroneous based on the evidence originally submitted. Defendant's Moving Papers Do Not Make The Showing Required by Code of Civil Procedure § 437c(f)(2) While courts analyzing whether to reconsider a prior ruling under section 1008(b) have required a showing a "strict requirements of diligence" and an explanation for why "new" facts were not previously presented, courts analyzing whether to permit the filing of a second summary adjudication motion under DATE: 02/26/2019 MINUTE ORDER Page 3 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS section 437c(f)(2) have not imposed a "diligence" requirement. Under section 437c(f)(2), "[a] party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion." (Code Civ. Proc. § 437c(f)(2) (emphasis added).) As long as the second motion truly contains "newly discovered facts" and is not merely a "reformatted, condensed, and cosmetically repackaged" version of its first motion, the court will have discretion to consider it. (Patterson, 155 Cal.App.4th 821, 827 (applying Bagley, 73 Cal.App.4th at 1097 (second motion showed no new law and no new material facts in separate statement)).) Thus, a second motion will be allowed if it is based on newly discovered facts that were not included in the first motion. (Patterson, 155 Cal.App.4th 821, 827 (citing Schachter v. Citigroup, Inc. (2005) 126 Cal.App.4th 726, 739; Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1097 (second motion for summary judgment was improper because it showed no new law and listed no new material facts in the separate statement); Pender v. Radin (1994) 23 Cal.App.4th 1807, 1811-12 (holding that second motion for summary adjudication was proper because it was based on newly-discovered facts from depositions taken in discovery after first motion for summary adjudication was denied)); see also Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1106-07 (a court has the authority to permit a party to file a second motion for summary adjudication, as long as it is "supported by evidence that was not presented in connection with the prior motion.") (citing Le Francois, 35 Cal.4th at 1105; In Re Marriage of Barthold (2008) 158 Cal.App.4th 1301, 1314).) Further, as long as the second motion presents issues different from those presented in the first motion, the second motion can satisfy section 438c(f)(2). (Patterson, 155 Cal.App.4th at 827 (holding that second motion complied with section 437c(f)(2) because although "both motions for summary judgment involved 'duty' in a general sense, the District's two motions were not identical and involved different legal theories. The first motion focused on whether there was a statutory basis for imposing a duty; the second motion focused on whether the common law defense of assumption of risk applied to negate any claim of duty.").) Thus, a second motion for summary judgment must also be based on issues that were not raised in the previous motion that was denied. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 72 (insurer's earlier motion did not address plaintiff's fraud in obtaining coverage, which was basis for later motion).) The question before the Court is whether the "Renewed" MSA presents newly discovered facts and does more than repackage the same issues and arguments raised in Defendant's original motion. Defendant's "Renewed" Motion Makes No Showing That The Updated Declarations From Rodes, Colia, and Sarabia Constitute "Newly Discovered" Facts Defendant's attorney Nicholas J. Horton filed his own declaration in support of the instant "Renewed" Motion. Attorney Horton's Declaration states broadly that the "Renewed" motion is based on "the additional facts and evidence [Defendant] determined were necessary" after the original motion was denied in part. (Horton Decl. ¶¶ 11-12.) Horton does not specifically identify any pieces of evidence that were newly discovered after the original motion was denied in part. Horton declares, in pertinent part: On October 23, 2018, the Court entered an order denying HNCA's motion with respect to the cash benefits claim and the "bonus" claims on the grounds raised for the first time in Spears's Amended Opposition papers, despite Plaintiff Arana's lack of opposition to the motion. A true and correct copy of the Court's October 23, 2018 Minute Order is attached as Exhibit D. Given that the Court found that HNCA did not meet its burden of production based on evidence and DATE: 02/26/2019 MINUTE ORDER Page 4 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS supporting facts that Plaintiffs initially did not dispute, and given that Plaintiff Spears's repackaged disputes raised concerns with the Court as to the definition of terms used in HNCA's evidence and supporting facts (again, terms that were not initially in dispute), HNCA presents these issues to the Court with the additional facts and evidence it determined were necessary, so that a ruling on the merits of these issues can be reached. (Declaration of Nicholas J. Horton ("Horton Decl.") ¶¶ 11-12.) Plaintiff contends that the motion does not comply with sections 437c(f)(2), in that Defendant has failed to present "newly discovered" evidence or facts. Defendant argues that as long as the moving party "presents new facts to the court" that were not presented in the original motion, the moving party's "renewed" motion will be proper. (Reply at 2-4 (citing Bagley, 73 Cal.App.4th 1092, 1097).) Defendant argues that the evidence need not be newly "discovered," because as long as the new facts were simply "not included in the prior motion for summary adjudication," the motion "does not violate Section 427c(f)(2)." (Reply at 4.) The Court agrees with Plaintiffs. The plain text of section 437c(f)(2) expressly requires "newly discovered facts." (Code Civ. Proc. § 437c(f)(2) (emphasis added).) Here, Defendant's proffered "new" facts/evidence are declarations from the same defense personnel who provided declarations in connection with the original motion - Diane Rodes (HNI's Director of Human Resources), Debbie Colia (HNI's Vice President of Organizational Effectiveness), and Kelly Sarabia (Payroll Director for Centene Corporation and formerly for HNI prior to its merger with Centene). (Compare Rodes, Colia, and Sarabia Declarations filed 2/5/18 at Register of Actions ("ROA") No. 103 with Rodes, Colia, and Sarabia Declarations filed 11/19/18 at ROA No. 283.) The "new" Rodes Declaration is more specific than the previously-filed declaration from Rodes, and Paragraphs 15-16 of the "new" Colia Declaration appears intended to address the evidentiary gap that this Court found prevented summary adjudication for Defendant on its original motion. Sarabia's "new" Declaration is mostly identical to her previously-filed Declaration, except that the previously-repeated phrase "HNCA paid out" -- which this Court specifically found to give rise to a dispute of material fact in ruling on the original motion -- has been omitted. Defendant has not shown that the more detailed "new" declarations rise to the level of "newly discovered facts" rather than facts that have always been in Defendant's possession yet were simply not included in the original motion. Courts have rejected attempts to frame previously-available and easily-obtainable evidence as "new" simply because it was not previously shown to the court with the original motion. (See e.g. New York Times, 135 Cal.App.4th at 212-213 (albeit in the context of a section 1008 analysis and not a section 437c(f)(2) analysis: "[a]lthough the evidence was new to the trial court, it was available to WSN throughout the discovery process and was easily obtainable, as demonstrated by the April 1 depositions. WSN (and certainly C2B), were or should have been aware of the details about the online ad campaign from its inception. WSN failed to include any of this information in its opposition to the summary judgment motion, or even mention it to the court until the end of the hearing, when it appeared that the court would rule against it. This evidence was not the type of 'new or different facts, circumstances, or law' that would justify reconsideration."); see also Garcia, 58 Cal.App.4th at 690 (also in the section 1008 context and not the section 437c(f)(2) context.) There has been no showing as to when Defendant "discovered" the information contained in the "new," updated declarations from its own personnel who previously filed declarations in support of the original motion. Defendant has therefore not shown that the facts asserted in these declarations can accurately be described as "newly discovered facts" such that they satisfy the plain text of section 437c(f)(2). DATE: 02/26/2019 MINUTE ORDER Page 5 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Ultimately, Defendant has not shown that the proffered "new" facts are the sort of "newly discovered" facts required by sections 437c(f)(2). The Issues In The "Renewed" Motion Are Substantively The Same As Those Raised in First Motion Moreover, even if the instant motion could be said to include "newly discovered" facts, the Court finds that the legal issues in the "Renewed" Motion are substantively the same issues that were presented in the original motion. The "Renewed" Motion raises the same legal arguments from, and is merely a "repackaged" version of, the original motion. (See Patterson, 155 Cal.App.4th 821, 827 (applying Bagley, 73 Cal.App.4th at 1097 (second motion showed no new law and no new material facts in separate statement)).) The Notice of Motion for the original Motion for Summary Adjudication sets out the following issues, in pertinent part: The Third Cause of Action for Failure to Pay Hourly and Overtime Wages: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include cash benefits received in lieu of medical payment in Plaintiff Spears' regular rate of pay for purposes of computing overtime pay fails because cash benefits received by Plaintiff Spears as a result of her waiver of medical coverage were properly excluded from her regular rate calculation under the Benefit-Plan Contributions Exception. Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include bonuses awarded to Plaintiffs in the regular rate of pay calculation fails because Plaintiff Spears did not receive a single bonus payment and HNCA appropriately allocated bonus payments in determining the regular rate for Plaintiff Arana. [. . .] The Seventh Cause of Action for Civil Penalties Pursuant to Labor Code §§ 2698, et seq. (PAGA): Plaintiffs' claim for PAGA penalties based on alleged failure to pay overtime wages as a result of alleged failure to include cash benefits received in lieu of medical payment in Plaintiff Spears' regular rate of pay fails because cash benefits received by Plaintiff Spears as a result of her waiver of medical coverage were properly excluded from her regular rate calculation under the Benefit-Plan Contributions Exception. Plaintiffs' claim for PAGA penalties based on alleged failure to pay overtime wages as a result of alleged failure to include bonuses awarded to Plaintiffs in the regular rate of pay calculation fails because Plaintiff Spears did not receive a single bonus payment and HNCA appropriately allocated bonus payments in determining the regular rate for Plaintiff Arana. (Notice of Motion for original MSA, ROA No. 100.) The Notice of Motion for the "Renewed" Motion sets out what are substantively the same issues: The Third Cause of Action for Failure to Pay Hourly and Overtime Wages: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include cash benefits received pursuant to a bona fide benefits Plan in Plaintiff Spears' regular rate of pay fails because cash benefits were properly excluded from her regular rate calculation under the Benefit-Plan Contributions Exception and Plaintiff Arana never received the cash benefit. DATE: 02/26/2019 MINUTE ORDER Page 6 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include SPOT payments in the regular rate of pay fails because SPOT payments were properly accounted for in the regular rate calculation. Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include ACA Incentive Plan payments in the regular rate of pay fails because those payments were properly accounted for in the regular rate calculation. Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include Wellness Incentive payments in the regular rate of pay fails because those payments are not bonuses and were properly excluded from the regular rate. The Seventh Cause of Action for Civil Penalties Pursuant to Labor Code § 2698, et seq. (PAGA): Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as a result of alleged failure to include cash benefits received by Plaintiff Spears in her regular rate of pay fails because the underlying alleged Labor Code violation did not occur. Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as alleged failure to include SPOT cash awards awarded to Plaintiff Arana in the regular rate of pay calculation fails because the underlying alleged Labor Code violation did not occur. Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as alleged failure to ACA Incentive Plan payments awarded to Plaintiff Arana in the regular rate of pay calculation fails because the underlying alleged Labor Code violation did not occur. Plaintiffs' PAGA claim based on alleged failure to pay overtime wages as alleged failure to include Wellness Incentive payments made to Plaintiff Arana in the regular rate of pay calculation fails because the underlying alleged Labor Code violation did not occur. (Notice of Motion for Renewed Motion for Summary Adjudication, ROA No. 280.) Across both motions, then, Defendants seek a ruling that the Benefits-Plan Contributions Exception applies to cash paid out to employees who decline medical coverage. Also across both motions, Defendants seek a ruling that certain payments to employees should not be considered "bonuses" that would have to be included when calculating overtime pay. While the "Renewed" Motion splits up the previously-raised "bonus" issue into three separate issues divided by the name of the alleged "bonus," this constitutes a repackaging of the same "bonus" issue from the original motion. (See Patterson, 155 Cal.App.4th at 827.) In Patterson, the trial court permitted the filing of a second dispositive motion because it raised different issues than the first motion. In upholding the lower court's consideration of the second motion, the Third District Court of Appeal explained that, while both motions for summary judgment raised the issue of "duty," the two motions actually "involved different legal theories" because "[t]he first motion focused on whether there was a statutory basis for imposing a duty; the second motion focused on whether the common law defense of assumption of risk applied to negate any claim of duty." (Patterson, 155 Cal.App.4th at 827.) The appellate court held that "[a] comparison of the arguments and material facts shows that the District's second motion for summary judgment is not simply a 'reformatted, condensed, and cosmetically repackaged' version of its first motion." (Id.) In Nieto, the appellate court found that the trial court properly considered the second dispositive motion DATE: 02/26/2019 MINUTE ORDER Page 7 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS because it "addressed an issue not raised by the prior motion. Indeed, in its order denying the prior motion the trial court expressly stated that the motion's failure to address the elements of fraud was the basis for its denial. The operative summary judgment motion addressed this previously omitted issue, asserting that Blue Shield was entitled to judgment because appellant committed fraud on the application and specifically identified the elements of fraud established by the undisputed evidence." (Nieto, 181 Cal.App.4th 60, 72-73.) Here, Defendant's motion raises substantively the same "Benefits Plan Contribution Exception" argument across both motions, as well as the same "bonus" argument (albeit repackaged into three separate "issues"). Defendant's "Renewed" Motion is simply not akin to the one deemed permissible in Patterson, i.e., where the previously-denied "statutory basis for imposing a duty" argument was completely replaced by an argument about whether the defense of "assumption of risk" could negate any claim of duty. (See Patterson, 155 Cal.App.4th at 827; Bagley, 73 Cal.App.4th at 1097.) Defendant's "Renewed" Motion is not akin to the one deemed permissible in Nieto, where the first motion failed to raise the issue of fraud, such that the second motion could properly raise it for the first time. (See Nieto, 181 Cal.App.4th 60, 72-73.) Having failed to comply with Code of Civil Procedure § 437c(f)(2) and the jurisdictional requirements of Code of Civil Procedure § 1008(b), Defendant's "Renewed" motion for summary adjudication must be DENIED. Even If Court Could Consider The "Renewed" Motion, It Would Be Denied On Grounds It Does Not Entirely Dispose of The Challenged Causes of Action Defendant may argue that it would be within Court's inherent authority to reach the merits of Defendant's "Renewed" Motion despite the Motion's failures to comply with section 437c(f)(2) and section 1008(b). (See Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1105-1106 ("the Le Francois court noted that the text of Code of Civil Procedure section 437c, subdivision (f)(2) restricts only a party's ability to file a motion, and does not restrict a court's inherent authority in any manner.") (citing Le Francois, 35 Cal.4th at 1105.) However, even if the Court were willing to consider Defendant's "Renewed" Motion on its merits despite its failures to comply with sections 437c(f)(2) and 1008(b), the result would be the same. The Motion would be DENIED. The "Renewed" Motion must be denied because it does not entirely dispose of the Third and Seventh Causes of Action. (See Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1124, 1135 (clarifying that prior to 1990, courts were permitted to summarily adjudicate separate issues in a case, but the statute no longer permitted such piecemeal adjudication).) Here, as Plaintiff's Opposition points out, the question of whether certain cash payments should have been included in the regular rate does not dispose of the entire Third cause of action for failure to pay hourly wages under California Labor Code ("Cal. Lab. Code") §§ 223, 510,1194,1194.2,1197,1997.1, and 1198; the Sixth cause of action for Unfair Competition (the "UCL"); or, the Seventh cause of action for Civil Penalties pursuant to Cal. Lab. Code § 2698, et seq. All three of these causes of action also contain allegations regarding wage and hour violations that are not addressed in Defendant's motion, including Defendant's allegedly maintaining a practice of requiring employees to work during unpaid meal periods and during paid rest periods (Consolidated Complaint, ("Consol. Compl.") ¶¶ 85, 87-90) as well as failing to pay employees classified as exempt any overtime wages (Consol. Compl., ¶¶ 84-85). (Opp'n at 4, 15.) The UCL and PAGA causes of action also allege similar claims that would not be disposed of by DATE: 02/26/2019 MINUTE ORDER Page 8 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS Defendant's "Renewed" Motion. The UCL alleges that Defendant failed to "provide non-exempt employees with uninterrupted, duty-free, meal periods" (Consol. Compl. ¶ 129) and the PAGA cause of action incorporates that allegation at paragraph 139 to allege at paragraph 144 that Defendant violated "Labor Code §§ 201,202, 203,204, 223, 226(a), 226.7, 227.3, 510, 512, 1194,1197, 1198, and 2802." (Id. at ¶ 144.) These aspects of the Third and Seventh causes of action that would not be disposed of by Defendant's motion for summary adjudication require denial of the Motion. (Opp'n at 4, 15.) The "Renewed" Motion also does not identify any affirmative defense that would provide a complete defense to any of these causes of action. (Opp'n at 4, 15.) On Reply, Defendant argues that the Court should nevertheless grant summary adjudication under Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1854, because Plaintiffs' pleading combines "separate and distinct" wrongful acts - such as the failure to provide compliant meal periods, the failure to include bonuses when calculating the regular rate of pay, etc. - into a single cause of action. (Reply at 2-3.) The Court is not persuaded because Defendant's moving papers and Separate Statement make no mention of Lilienthal. Regardless of whether each alleged overtime-related claim can be treated as a separate and distinct cause of action, Defendant did not move for summary adjudication as to any of the alleged conduct separately, and they cannot do so for the first time in their Reply. (See Lilienthal, 12 Cal.App.4th at 1854-55; see also Taylor v. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 1001 n.2 ("It is improper to raise new contentions in the reply brief."). Moreover, with respect to Plaintiffs' overtime-related claims, whether framed as based on failure to properly account for the "cash" payments in lieu of medical benefits or framed as failure to properly account for other sorts of alleged "bonuses," both claims are challenges to the accuracy of Defendant's "regular rate" calculations and are not necessarily "distinct and separate" wrongs as in Lilienthal. (See Lilienthal, 12 Cal.App.4th at 1854-55.) Lilienthal was a legal malpractice action that arose out of legal services provided to the plaintiffs at different times on two separate and distinct matters, involving different properties and different opposing parties. The plaintiffs alleged two causes of action, one for breach of contract and one for negligence. Each cause of action combined plaintiffs' claims with regard to both matters. The defendant law firm moved for summary adjudication of one of the matters on statute of limitations grounds. The trial court denied the motion for summary adjudication because the motion would not completely dispose of an entire cause of action. The First District Court of Appeal vacated the trial court's order. The court explained that "plaintiffs seek to recover damages based on two separate and distinct obligations. Each obligation creates a separate and distinct claim. . . . There is no dispute that the two matters have no relation to each other and involve legal services performed at different times, with different and distinct obligations, and distinct and separate alleged damages. (Lilienthal, 12 Cal.App.4th at 1854.) Here, the overtime-related claims are all based on a single employer "obligation" - to accurately calculate the "regular rate" when calculating overtime payments. And because the UCL/PAGA claim is at least partially premised upon the overtime-related claims, summary adjudication is improper as to those as well. Because it does not completely dispose of the Third and Seventh causes of actions, even if the Court could consider the "Renewed" Motion on it merits, the motion would have to be DENIED. New Evidence on Reply Defendant filed new evidence with its Reply brief: a "Reply Declaration" from Rodes, as well as blurred and nearly illegible excerpts of transcripts from depositions with Sarabia, Colia, and Rodes that Plaintiff took after Defendant filed its "Renewed" MSA. The Court did not consider the evidence filed for the first time on Reply. In general, a moving party is not permitted to submit new facts and evidence in their DATE: 02/26/2019 MINUTE ORDER Page 9 DEPT: 54 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS reply papers. (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308 (trial court did not err in declining to consider new evidence filed with reply in support of summary judgment motion).) Evidentiary Objections Plaintiffs' objections to the Sarabia, Colia, and Rodes Declarations are OVERRULED. The objections go to the weight of the evidence, not admissibility. Defendant did not file any evidentiary objections. Conclusion For all the foregoing reasons, Defendant's "Renewed" Motion for Summary Adjudication is DENIED. Plaintiff shall prepare for this Court's signature and order pursuant to Code of Civil Procedure § 437c(g) and CRC Rule 3.1312. COURT RULING The matter was argued and submitted. The matter was taken under submission. SUBMITTED MATTER RULING Having considered the statements made by counsel at oral argument, the Court nevertheless AFFIRMS the original tentative ruling. The requirements of Code of Civil Procedure section 437c(f)(2) for a renewed motion for summary judgment are not met in this case. (Bagley v. TRW (1999) 73 Cal.App.4th 1092, 1097.) Although defendant cited language from an unpublished Court of Appeal case that apparently did not follow the holding of Bagley v. TRW, this Court must follow published appellate decisions and the plain wording of statutes. DATE: 02/26/2019 MINUTE ORDER Page 10 DEPT: 54 Calendar No.