Preview
Filed bv fQX
I TIMOTHY J. LONG (STATE BAR NO. 137591)
tjIong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
3
nhorton@orrick.com
AVALON J. FITZGERALD (STATE BAR NO. 288167)
FILED/ENDORSED
afitzgeraId@orrick.com
4 ORRICK, HERRINGTON & SUTCLIFFE LLP FEB 1 5 2019
400 Capitol Mall, Suite 3000
5 Sacramento, CA 95814-4497 By:. M. Rubalcaha
Telephone: +1 916 447 8299 Deputy Clertt
6 Facsimile: +1 916 329 4900
7 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
12 similariy situated,
Plaintiff,
13 DEFENDANT HEALTH N I E T OF
CALIFORNIA, INC.'S OPPOSITION TO
14 PLAINTIFFS' MOTION FOR CLASS
CERTIFICATION
HEALTH NET OF CALIFORNL\, INC., a
15 Califomia,Corporation; and Does i through Date: April 11, 2019
50, inclusive, Time:. - 10:00 a.m;
16 Dept: . 35 .
Deferidants. Judge: Hon. Alan G. Perkins
17
Complaint Filed: April 5, 2017
18 FAC Filed: June 29, 2017
19
TOMAS R. ARANA, on behalf of himself, all
Complaint Filed: August 1, 2017
20 others similarly situated,
Consolidated Cornplaint Filed: Dec. 21, 2017
21 Plaintiff,
22
23 HEALTH NET OF CALIFORNL\, INC., a
California corporation; and DOES 1-50,
24 inclusive,
25 Defendant.
26
27
28
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
T A B L E OF CONTENTS
Page
2
3 I. INTRODUCTION 1
II. FACTUAL BACKGROUND 2
4
A. Health Net of Califomia Inc 2
^ B. Tomas Arana's Employment with HNCA 2
6 C. HNCA's Timekeeping, Meal Break, and Rest Break Policies 2
^ D. Relevant Procedural Background 4
III. ANALYSIS ...4
^ A. Arana Does Not Carry His Burden to Demonstrate an Ascertainable Class 5
9 B. Arana Offers No Evidence That HNCA's Liability Can Be Determined by
Facts Common to All Members of the Class 6
1^ 1. HNCA's alleged lack of "policies" upon which Arana relies to
certify his meal and rest break claims neither violates the law nor
1' provides classwide proof 7
12 2. Arana fails to identify a common method of proof for the alleged
off-the-clock violations 10
13 3. Given the lack of evidence ofa uniform policy or any other
common method of proof, individual issues predominate 12
14
C. Failure to Present a Trial Plan Is Fatal to Arana's Motion and Demonstrates
15 That a Class Action Is Not Superior or Manageable 18
16 D. Arana's Claims Are Not Typical of the Putative Class 19
E. Arana's Individual Claims Also Carmot Be Certified 20
IV. CONCLUSION 20
18
19
20
21
22
23
24
25
26
27
28 1 -
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
T A B L E OF AUTHORITIES
2 Page(s)
3
Cases
4
Alberts v. Aurora Behavioral Health Care,
5 241 Cal. App. 4th 388 (2015) 6,7
6 Augustus V. ABM Security Servs., Inc.,
2 Cal. 5th 257 (2016) 9, 12
7
Basurco v. 21st Century Ins. Co.,
8 108 Cal. App. 4th 110 (2003) 11
9 Brinker Rest. Corp. v. Superior Court,
53 Cal. 4th 1004 (2012) passim
10
\1 City of San Jose v. Superior Court,
12 Cal. 3d 447 (1974) 6
12 Duran v. U.S. Bank National Association,
59 Cal. 4th 1 (2014) 1,6,9, 18
13
Dynabursky v. AlliedBarton Sec. Servs. LP,
15 2014 WL 1654030 (CD. Cal. Apr. 24, 2014) 16
Evans V. lAC/Interactive Corp.,
244 F.R.D. 568 (CD. Cal. 2007) 15
17
Faulkinbury v. Boyd & Associates, Inc.,
18 216CaL App. 4th220(2013) 7
19 Franchise Tax Bd. Ltd. Liab. Corp. Tax Refund Cases, 25 Cal. App. 5th 369
(2018), reh 'g denied (Aug. 6, 2018), review denied (Oct. 31, 2018) 5
2J Hale v. Sharp Healthcare,
232 CaL App. 4th 50 (2014) 7, 8
22
Kennedy v. Baxter Healthcare Corp.,
23 43 Cal. App. 4th 799 (1996) 6, 18
24 Koval V. Pac. Bell Tel. Co.,
2^ 232 Cal. App. 4th 1050 (2014) 9
„, Liu V. Win Woo Trading, LLC,
2016 WL 3279466 (N.D. CaL June 15, 2016) 16
27
Martinez v. Joe's Crab Shack Holdings,
28 231 Cal. App. 4th 362 (2014), as modified on denial of reh 'g (Dec. 3, 2014) 20
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
Morgan v. Wet Seal, Inc.,
^ 210 Cal. App. 4th 1341 (2012) .6, 8, 1{
Morillion v. Royal Packing Co.,
22 CaL 4th 575 (2000) 16
4
Nishiki v. Danko Meredith, APC,
5 25 Cal. App. 5th 883 (2018), review denied (Nov. 14, 2018)., 20
6 Pay ton v. CSI Elec. Contractors, Inc.,
27 Cal. App. 5th 832 (2018) 10, 18
7 Sav-on Drug Stores, Inc. v. Superior Court,
8 34 Cal. 4th 319 (2004) 5
9
Seastrom v. Neways, Inc.,
10 149 Cal. App. 4th 1496 (2007) 19, 20
11 Troester v. Starbucks Corp.,
5 Cal. 5th 829, as modified on denial of reh 'g (Aug. 29, 2018) 12
12 Wal-Mart Stores, Inc. v. Dukes,
564 U.S. 338(2011) 7,9
13
Wilson V. TE Connectivity Networks, Inc.,
14 2017 WL 1758048 (N.D. CaL Feb. 9, 2017) 16
15
16 Statutes
17 Cal. Code Civ. Proc. § 382 4, 5
18 Cal. Code Regs. tiL 8, § 11020( 12) 9
19 Cal. Code Regs. tiL 8, § 13520 20
Cal. Lab. Code § 203 20
21
22
23
24
25
26
27
28
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 I. INTRODUCTION
2 Plaintiff Tomas Arana's motion for class certification demonstrates, in and of itself, that
3 class certification is not warranted in this case. Indeed, Arana scarcely articulates a coherent
4 theory supporting certification. Attempting to establish predominance, he argues that a uniform
5 lack of a policy will provide classwide proof on the meal and rest period claims. Yet Arana does
6 not explain how the specific policy Health Net of Califomia, Inc. ("HNCA") supposedly lacks—
7 one informing employees of their recourse should they miss a meal or rest period—might permit
8 Arana to prove HNCA's liability for meal and rest period violations across the putative class.
9 Because there is no requirement that a company have such policies, HNCA's alleged lack of such
10 a policy in no way permits for classwide proof. Nor does Arana provide any evidence, as he
11 must, that HNCA lacked such a policy. Of the 15 putative class member declarations submitted
12 by Arana, only three have not been withdrawn and none of those remaining address this issue.
13 Proving meal and rest period violations for the putative class of approximately 4,400 employees
14 will therefore require individualized mini-trials, which will pose significant manageability issues.
15 The off-the-clock claims fare no better. Arana does not even attempt to point to a uniform
16 policy (or lack of one). He merely insists that HNCA's alleged "computer and software start time
17 procedures give rise to predominate questions of fact and law," and contends that a common
18 question of law exists as to whether employees should be compensated for off-the-clock time.
19 But Arana does not point to any common method of proof and ignores that there must be common
20 questions offact, and not just law, to warrant certification. Because individual issues clearly
21 predominate on these claims. .Arana's motion for class certification must be denied.
22 Arana's motion suffers from additional shortcomings. He fails to carry his burden to
23 demonstrate that the class is ascertainable or that his claims are typical of the class. Perhaps most
24 critically, Arana did not submit a trial plan to demonstrate how the putative class's claims might
25 be tried in a manageable way. Under ZJwra/? v. U.S. Bank National Association, 59 Cal. 4th 1
26 (2014), Arana's failure to present any trial plan to the Court, let alone a workable trial plan, to
27 address the myriad individualized issues presented by this case dictates that class certification
28 must be denied.
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 Finally, and tellingly, despite being titled "Plaintiffs" motion for class certification,
2 Arana's co-Plaintiff Andrea Spears has not joined the motion and does not seek to serve as a class
3 representative in this case. HNCA can only assume this is because Arana's own co-Plaintiff
4 recognizes that Arana's motion has no merit.
5 II. FACTUAL BACKGROUND
6 A. Health Net of California, Inc.
7 HNCA is a health maintenance organization that operates in Sacramento County and in
8 Southem Califomia. Decl. of Diane Rodes ISO Mot. Why Arana's Case Should Not Proceed as a
9 PAGA Representative Action ("Rodes Decl."), Dec. 21, 2019, H 2. HNCA provides health
10 insurance products such as commercial HMO plans and healthcare service plans. Id.
11 B. Tomas Arana's Emplovment with HNCA.
12 Arana is currently employed by HNCA at its Sun Center, Rancho Cordova facility. Rodes
13 Decl. TI3. Arana was hired in 2008 as a non-exempt employee. Timothy J. Long Decl. ISO
14 Oppo. to Class Cert. MoL ("Long DecL") H 2, Ex. A at 101:15-17; Rodes Decl. ^ 3. He remained
15 a non-exempt employee until he was promoted effective November 15, 2015, to the exempt
16 position (Contact Center Analyst) he currently holds. Long Decl. | 2, Ex. A at 114:24-115:2;
17 Rodes Decl. Tl 3.
18 C. HNCA's Timekeeping, Meal Break, and Rest Break Policies.
19 Timekeeping Policy. HNCA's policies have always been to require that employees record
20 their actual in and out times. Rodes Decl. ^ 6; Summary of Evidence Submitted in Support of
21 Motion as to Why Arana's Case Should Not Proceed as a PAGA Representative Action, Dec. 21,
22 2018, Factual Statement ("Arana FS") 1.' Indeed, HNCA's timekeeping system has always
23 permitted employees to manually type in their start and stop times and HNCA's policies required
24 Arana and all other call center employees to accurately enter their time. Rodes Decl. ^ 6-7 &
25 Ex. A; Arana FS 2; Long Decl. ^ 3, Ex. B at 86:14-18. Arana himself testified that he
26 I For the Court's convenience, rather than refile the numerous witness declarations submitted in support of its PAGA
motions on December 21, 2018, HNCA refers to and incorporates by reference the Summary of Evidence Submitted
27 in S pport the Motion as to Why Arana's Case Should Not Proceed as a PAGA Representative Action, the Summary
of Evidence Submitted in Support the Motion as to Why Spears' Case Should Not Proceed as a PAGA
28 Representative Action ("Spears FS"), and the Compendium of Witness Declarations in Support of Defendant Health
Net of Califomia, Inc.'s Motions as to Why Plaintiffs' Cases Should Not Proceed as PAGA Representative Actions.
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 "understood that the company policy was for [him] to accurately record the time [he] worked,"
2 and that "[he] was instmcted to put in [his] actual time[,] which [he] did . . . ." Long Decl. ^ 2,
3 Ex. A at 56:20-23, 57:21-23. This "include[d] when [he] started work, [and] when and if [he]
4 took a meal break . . . ." Id. at 57:24-58:1. Arana agreed that "the expectation of the company
5 was that [he] accurately record[ed] the hours that [he] worked," and that he did that "to the best of
6 [his] ability." Id. at 58:6-11.
7 During the relevant time period, HNCA's policies required employees to use a program
8 called PeopleSoft to log their time for purposes of payroll. Long Decl. \ 3, Ex. B at 54:4-5. On
9 January 1,2017, HNCA switched to using the EMPCenter timekeeping system for this purpose,
10 and its policies changed accordingly. Id. at 54:6-7; Rodes Decl. ^ 7. The EMPCenter
11 timekeeping system is a web-based system that permits employees to log their time by clicking a
12 button. PeopleSoft and EMPCenter have both always permitted employees to manually enter
13 their start and stop times. Rodes Decl. ^ 7. Although some employees used their desk phones to
14 indicate their availability to take phone calls, during the relevant time period employees never
15 used the phone system to log their time for purposes of payroll. Will Montes Decl. ISO Oppo. to
16 Class Cert. MoL ("Montes DecL"), Feb. 15, 2019, HI 3-5.
17 Meal Break Policy. HNCA's meal break policy complied with Califomia law at all
18 relevant times. Rodes Decl. ISO Mot. Why Spears' Claims Should Not Proceed as PAGA
19 Representative Action ("Rodes [Spears] DecL"), Dec. 21, 2018, Iffl 12-13 & Exs. B, C; Long
20 Decl. Tl 3, Ex. B at 88:21-89:4, 89:14-18, 91:8-92:19. HNCA provided employees with a 30-
21 minute meal period before their fifth hour of work, and employees who missed meal periods
22 received appropriate penalties. Long Decl. Tl 3, Ex. B at 88:21-89:1, 89:14-18. Arana testified
23 that he "understood that the company's policy was that [he] [was] to be provided with 30-
24 minute—at least 30 minute lunches during which [he] [was] not supposed to be doing any work,"
25 as well as second meal periods for shifts that went longer than 11 hours (unless waived). Id. Tl 2,
26 Ex. A at 55:3-11,85:16-86:19.
27 Rest Break Policy. HNCA's rest break policy likewise complied with Califomia law at
28 all relevant times. Rodes [Spears] Decl. TITI 12-13 & Exs. B, C. HNCA's policy has always been
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 to permit employees to take a 15-minute rest period for every four hours worked, or major
2 fraction thereof M Tl 12 & Exs. B, C. Again, Arana's testimony confirms this fact. He testified
3 that the company's policy was "to provide [him] with rest breaks every four hours or fraction
4 thereof," and the "company's policy . . . was to provide its employees with 15-minute rest
5 breaks . . . ." Long Decl. Tl 2, Ex. A at 46:15-23. Thus, not only does HNCA's rest-break policy
6 comply with Califomia law, it provides more than the law requires.
7 D. Relevant Procedural Background
8 On December 21, 2018, Arana filed the instant motion for class certification. This motion
9 does not request Spears' appointment as a class representative, nor has Spears joined the motion.^
10 On the same day, HNCA filed its Motions as to Why Plaintiffs' Claims Should Not Proceed as
11 PAGA Representative Actions.
12 Arana's motion for class certification was originally supported by the declarations of 15
13 putative class members. Since filing his motion, Arana has voluntarily withdrawn the
14 declarations of Neyva Aleman, Toby Alfred, James Bjorseth, Patricia Gonzales, Veronica Perez,
15 and Shanel Allen. Putative class members Sheena Boehl, Ana Martinez Gutierrez, Crystal
16 Martinez, Mynor Masaya, Micheal Parker, and Charles Pearson have each signed a declaration
17 withdrawing the declaration submitted in support of Arana's motion (cited as the "Withdrawal
18 Declarations"). Accordingly, only three declarations—those of Cynthia Martel, Markus
19 Northam, and Maria Del Pilar Perez—remain in support of Arana's motion.
20 III. ANALYSIS
21 Arana faces a high certification standard that he fails to meet. Arana "must demonstrate
22 the existence of an ascertainable and sufficiently numerous class, a well-defined community of
23 interest, and substantial benefits from certification that render proceeding as a class superior to
24 the altematives." Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012); Cal.
25 Code Civ. Proc. § 382. To satisfy the "community of interest" requirement, Arana must offer
26 substantial evidence that his claims are typical of the class he seeks to represent, that he is an
27
- It is now too late for Spears to do so, as the deadline set by this Court for Plaintiffs to seek class certification has
28 long since passed. Thus, it is solely on Arana's motion that the Court must decide whether class certification is
appropriate.
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 adequate representative, and that common questions of fact and law predominate over individual
2 issues in the case, making class litigation both manageable and superior to individual litigation.
3 Brinker, 53 Cal. 4th at 1021; Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326
4 (2004); Code Civ. Proc. § 382.
5 Here, the Court must deny Arana's motion because (1) Arana does nothing to demonstrate
6 that the class is ascertainable; (2) there is not a well-defined community of interest;
7 (3) certification is not a superior method of adjudication, as evidenced by Arana's failure to
8 propose a trial plan; and (4) Arana's claims are not typical of the class he seeks to represent.
9 A. Arana Does Not Carry His Burden to Demonstrate an Ascertainable Class.
10 Arana asserts that the class is ascertainable because "Defendants can identify non-exempt
11 employees, as shown by the fact that Defendants produced a class list in discovery." Mot. 6:1-2.
12 This single sentence is hardly sufficient to meet Arana's burden, as "[a]scertainability is achieved
13 'by defining the class in terms of objective characteristics and common transactional facts making
14 the ultimate identification of class members possible when that identification becomes
15 necessary.'" Franchise Tax Bd. Ltd. Liab. Corp. Tax Refund Cases, 25 Cal. App. 5th 369, 389
16 (2018), reh 'g denied (Aug. 6, 2018), review denied (Oct 31, 2018) (citations omitted). This
17 analysis requires examining "the class definition, the size ofthe class and the means of
18 identifying class members." /c/. (citation and emphasis omitted). Despite these clear
19 requirements, Arana does absolutely nothing to explain how the definitions for the proposed class
20 and subclasses provide a reasonable means of identifying potential class members.
21 Arana's lack of effort on this front is perhaps unsurprising. The "class list" HNCA
22 produced in discovery is the Belaire- West list, which contains not only the names of all non-
23 exempt employees but also the names of exempt employees who were allegedly misclassified.
24 Some of the non-exempt employees were included on the basis that they received bonuses that
25 Plaintiffs claimed should have been included in the regular rate. Because Arana does not seek to
26 certify class claims related to misclassification or regular rate violations related to bonuses, this
27 "list" is undoubtedly inaccurate and overbroad and in no way evidences the ascertainability of the
28 class Arana now seeks to certify.
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
Moreover, Arana offers proposed class definitions that are inherently problematic. The
2 class definition includes not only all persons employed by HNCA—the defendant in this action—
3 but Health Net, Inc., which is not a party. Mot. 1:17. The subclass definitions similarly refer to
4 "Defendants," despite the fact that HNCA is the sole defendant in this action. Id. 1:22, 2:5, 2:7.
5 Moreover, the "Off-the-Clock Telephone Time Sub-Class" is hopelessly vague, as it refers to
6 "other electronic records" and "other electronic systems"—terms so broad and undefined as to be
7 virtually meaningless. Id. 1:22-24. Due to these critical flaws, the class definitions do not
8 provide a basis to readily ascertain class members.
9 B. Arana Offers No Evidence That HNCA's Liability Can Be Determined bv Facts
Common to All Members of the Class.
10
11 To establish that common questions predominate over individual issues in the case, Arana
12 must "do more than simply show that common issues exist. Rather, [he] need[s] to 'place
13 substantial evidence in the record that common issues predominate.'" Morgan v. Wet Seal, Inc.,
14 210 Cal. App. 4th 1341, 1354-55 (2012) (citation omitted). A class will be certified only i f the
15 plaintiff demonstrates that the "defendant's liability can be determined by facts common to all
16 members of the class." Brinker, 53 Cal. 4th at 1022 (emphasis added). "In deciding whether the
17 common questions 'predominate,' courts must. . . identify the common and individual issues;
18 consider the manageability of those issues; and taking into account the available management
19 tools, weigh the common against the individual issues to determine which of them predominate."
20 Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388, 397 (2015) (intemal quotations
21 and citation omitted). Common questions do not predominate, and "the class format is
22 inappropriate," if the ability of each class member to recover depends on a set of facts applicable
23 only to him or her, causing the "class action [to] splinter into individual trials." Kennedy v.
24 Baxter Healthcare Corp., 43 Cal. App. 4th 799, 809-10 (1996); see also Duran, 59 Cal. 4th
25 at 28-29; City of San Jose v. Superior Court, 12 Cal. 3d 447, 459 (1974) (class treatment not
26 appropriate " i f every member of the alleged class would be required to litigate numerous and
27 substantial questions determining his individual right to recover . . . .").
28 Here, Arana claims that HNCA's uniform lack of a policy informing employees of their
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 recourse should they miss a meal or rest period provides common proof for claimed meal and rest
2 period violations across the class. For off-the-clock claims, Arana asserts that the common
3 question of whether employees should be compensated for time worked off-the-clock suffices to
4 establish that common issues predominate. As explained below, these half-baked theories align
5 with neither the facts nor the law, making clear that individualized issues predominate.
6 I. HNCA's alleged lack of "policies" upon which Arana relies to certify his meal
^ and rest break claims neither violates the law nor provides classwide proof.
8 To establish that HNCA's liability for meal and rest period violations can be proved on a
9 classwide basis, Arana contends that HNCA uniformly lacks certain "policies," which provides a
10 common means of proving HNCA's liability to class members. MoL 7:3-5, 18-20. This
11 contention is both factually and legally inaccurate. To be sure, courts have held that where the
12 plaintiffs theory of liability is that the employer "has a uniform policy" that "allegedly violates
13 the law," there exists "a common question eminently suited for class treatment." Brinker, 53 Cal.
14 4th at 1033; see also Alberts, 241 Cal. App. 4th at 409; Faulkinbury v. Boyd & Associates, Inc.,
15 216 Cal. App. 4th 220, 235 (2013). However, to warrant class treatment, the employer's alleged
16 policy must be an illegal policy, uniformly applied to all class members, that provides a means of
17 common proof on an element of the plaintiffs' claims. E.g.,'Hale v. Sharp Healthcare, 232 Cal.
18 App. 4th 50, 61-62 (2014) (listing cases); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338,
19 352-55 (2011).
20 That is not the case here. Instead, where, as here, there is "neither a common policy nor a
21 common method of proof," a plaintiffs claims cannot be certified. Brinker, 53 Cal. 4th at 1051.
22 Thus, in Brinker, where "[t]he only formal Brinker off-the-clock policy submitted disavow[ed]
23 such work, consistent with state law," the plaintiffs' off-the-clock claims could not be certified.
24 Id. More specifically, class certification was inappropriate because "liability [was] contingent on
25 proof Brinker knew or should have known off-the-clock work was occurring," and 'fnjothing
26 before the trial court demonstrated how this could be shown through common proof, in the
27 absence of evidence ofa uniform policy or practice.'' Id. at 1051-52 (emphasis added). Thus, the
28 plaintiffs' inability to point to a common policy or practice doomed their request for class
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 certification on the off-the-clock claim.
2 In this case, Arana does not even attempt to point to a uniformly applied unlawfiil written
3 policy providing classwide proof of HNCA's liability for meal period or rest period violations.
4 This is because, as Arana himself testified, HNCA's policies complied with Califomia law at all
5 relevant times. Long Decl. Tl 2, Ex. A at 46:15-23, 55:3-11, 85:16-86:19; Rodes [Spears] Decl.
6 TlTl 12-13 & Exs. B, C. Arana's co-Plaintiff Spears confirmed this testimony, stating
7 unequivocally that HNCA's meal break policy was to permit employees to take a 30-minute
8 break within the first five hours of a shift, and that HNCA's rest break policy was to provide non-
9 exempt employees with a 15-minute rest break for every four hours of a shift.^ Long Decl. Tl 4,
10 Ex. C at 40:6^2:1, 202:6-12. Other putative class members likewise testified that HNCA's
11 policies complied with Cahfomia law. Long Decl. Tl 5, Ex. D at 34:11-35:11; M Tl 6, Ex. E at
12 41:5-42:14,42:20-25,43:2-5.
13 Arana's case thus falls squarely into the category of cases in which there is no uniform
14 unlawful policy that would establish that the alleged Labor Code violations occurred.
15 Determining "the fact of damage" therefore requires individualized inquiries or evidence, making
16 class certification improper. Hale, 232 Cal. App. 4th at 62. Morgan v. Wet Seal, Inc., 210 Cal.
17 App. 4th 1341 (2012) is directly on point. There, the plaintiffs claimed that Wet Seal "violated
18 Califomia law by requiring employees to . . . purchase Wet Seal clothing and merchandise as a
19 condition of employment." Id. at 1344. But the court found that the employees' claim was not
20 susceptible to common proof because the company's written policies explicitly stated that
21 employees were not required to purchase and wear company- merchandise, and thus the policy
22 was not illegal. Id. at 1356, 1364. The same is tme here. Because HNCA's policies were legally
23 compliant at all relevant times, they do not and cannot provide the basis for class certification.
24 Perhaps recognizing this fact, Arana instead attempts to find a uniform theory of recovery
25 for the meal and rest break claims based on invented deficiencies in HNCA's policies. Arana
26 asserts that putative class members' meal period violations were caused by HNCA's "lack of
27
28 ^ Spears testified that her understanding was that employees were to be provided with a rest break every two hours.
Long Decl. 1 4, Ex. C at 40:22-23, 201:25-202:20.
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 enforced policies designed to advise the Class of their recourse when the demands of their
2 employer interfered with the ability to take breaks . . . ." Mot. 7:3-5. He similarly claims that
3 rest period violations occurred because HNCA's "rest break policy was deficient in that it failed
4 to include clear provisions for employee recourse when the demands of the employer interfered
5 with the ability to take a duty-free rest break." Mot. 8:2-4. These assertions fly in the face of
6 ample evidence that HNCA trained and informed its employees regarding its meal and rest period
7 requirement policies. Long Decl. Tl 3, Ex. B at 91:11-13, 91:24-92:2, 92:13-19, 93:6-11 &Exs.
8 15 ("Example of Califomia Meal Exception"), 17 (quarterly memo to supervisors); Id. TI 5, Ex. D
9 at 35:8-25; Arana FS 4. Moreover, and critically, Arana does not point to any case, statute. Wage
10 Order provision, or regulation dictating that employers must have such a policy. Thus, HNCA's
11 alleged lack of such a policy cannot be "illegal" and does not support certification.'' Cf Brinker,
12 53 Cal. 4th at 1033; Duran, 59 Cal. 4th at 31 n.28 ("[S]ome courts have held that the absence ofa
13 uniform policy supports certification if such a policy is required by law.").
14 To be clear, even assuming HNCA lacks directives informing employees of their recourse
15 when employer demands interfered with their meal and rest periods, this fact would do nothing to
16 prove HNCA's liability to the class for meal and rest period violations. To prevail on the claim
17 for meal period violations, the class members must prove that HNCA did not provide "a meal
18 period of not less than 30 minutes once an employee has worked for five hours." Augustus v.
19 ABM Security Servs., Inc., 2 Cal. 5th 257, 266 (2016) (citations omitted). Likewise, to prevail on
20 the claim for alleged rest period violations, the class members must prove that HNCA failed to
21 provide ten minutes net rest time for every four hours of work (or major fraction thereof). Cal.
22 Code Regs. tit. 8, § 11020(12). Accordingly, determining whether HNCA lacked such a policy
23 would not "resolve an issue that is central to the validity of each one of the claims in one stroke."
24 Dukes, 564 U.S. at 350; Brinker, 53 Cal. 4th at 1021-22 (certification may be appropriate " i f the
25 defendant's liability can be determined by facts common to all members of the class"). In other
26
To the extent Arana contends that HNCA had such policies but they were not enforced, the result does not change.
27 Courts have denied certification where the policies, although perhaps facially uniform, are not articulated or
implemented consistently. Koval v. Pac. Bell Tel. Co., 232 Cal. App. 4th 1050, 1062 (2014). Arana presents no
28 evidence that this alleged lack of enforcement was uniform, nor can he, given the evidence that many employees took
compliant meal and rest breaks.
-9-
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 words, proving that HNCA lacked directives informing employees of their recourse when
2 employer demands interfered with their meal and rest periods would in no way provide classwide
3 proof on any element of the class meal or rest period claims.
4 Arana faces an additional barrier to certification, as he fails to satisfy his burden of
5 providing "substantial evidence" that HNCA lacks these alleged directives. Pay ton v. CSI Elec.
6 Contractors, Inc., 27 Cal. App. 5th 832, 842 (2018) (a plaintiff "may not simply allege a uniform
7 policy or practice," but must submit "substantial evidence" that such a policy exists); see also
8 Brinker, 53 Cal. 4th at 1033. Only five of the fifteen declarations originally submitted by Arana
9 address the issue at all. See Aleman Decl. ISO Class Cert. Mot. Tl 6; Alfred Decl. ISO Class Cert.
10 Mot. Tl 4; Allen Decl. ISO Class Cert. Mot. Tl 7; Bjorseth Decl. ISO Class Cert. Mot. Tl 5; Boehl
11 Decl. ISO Class Cert. MoL TI 8. Ms. Boehl has voluntarily withdrawn her declaration. Boehl
12 Withdrawal Decl. Tl 5. Arana's own counsel stipulated to withdraw the declarations of Ms.
13 Aleman, Mr. Alfred, Ms. Allen, and Mr. Bjorseth. Stipulation to Withdraw Declarations, Feb. 7,
14 2019, at 3. As a result, there is not one declaration by a putative class member—out of the 4,400
15 class members Arana seeks to represent—providing evidence of the supposed lack of policy that
16 serves as the basis for class certification. The allegedly uniform lack of policy is therefore
17 nothing more than "wishful thinking," Pay ton, 27 Cal. App. 5th at 842, and Arana fails to carry
18 his burden.
19 2. Arana fails to identify a common method of proof for the alleged off-the-clock
violations.
20
21 With respect to his off-the-clock claims, Arana does not actually point to a uniform policy
22 or lack of policy as a basis for establishing that common issues predominate.^ Arana instead
23 vaguely asserts that HNCA's alleged "computer and software start time procedures giveriseto
24 predominate questions of fact and law," and contends that there is a common question of law as
25 to whether employees should be compensated for off-the-clock time. Mot. 8:19-20, 9:1, 9:15-
26 17:19. Arana provides a lengthy (albeit irrelevant) dissertation on the Califomia Supreme Court's
27 - Again, this is likely because HNCA had a compliant off-the-clock policy at all relevant times. See, e.g., Rodes
28 Decl. H 6 & Ex. A; Long Decl. H 3, Ex. B at 86:14-18; Jd. % 6, Ex. E at 33:22-24 (testifying that "Health Net's
timekeeping policy was to accurately report all time worked").
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 jurispmdence related to an employer's obligation to compensate employees for "small amounts of
2 time," and contends that certification is proper because "common questions of law can be applied
3 to test the legality of Defendants'pay practices." MoL 9:15-16. Even assuming the question of
4 whether such time is compensable and theoretically may be resolved on a classwide basis, Arana
5 nonetheless offers no common method of proof for the claimed off-the-clock violations.
6 Even Arana's expert, James Toney, does not provide evidence establishing that off-the-
7 clock work occurred or that supervisors were aware such work was occurring. To the contrary,
8 Toney testified that he was not retained to express this opinion and that he could not come to this
9 conclusion based solely on the records. Long Decl. Tl 7, Ex. F at 68:15-18, 70:8-24. Indeed, he
10 testified unequivocally that he was not asked to opine, and in fact did not opine, as to whether
11 employees were working off the clock. Id. at 70:8-24, 72:10-73:6, 74:5-7. Rather, he agreed
12 that he did "not have the data to assess whether work was being performed," and that his analysis
13 did not cover "any kind of activity as far as what was or was not being done." Id. at 72:23-25,
14 73:1-6. Accordingly, the conclusions drawn by Arana's counsel—that "the telephone log-in
15 records and payroll timekeeping records confinn unequivocally that off-the-clock work
16 occurred"—has absolutely no basis in facL as Arana's expert himself confirmed. Mot. 3:8-9;
17 Long Decl. Tl 7, Ex. F at 71:9-72:25. Moreover, while Toney states that data shows that time
18 entry occurred after employees logged into the system in 4.8% of the records, Toney Decl. ISO
19 Class Cert. Mot. Tl 11, this low percentage indicates that any employees who clocked in after
20 logging into their computer system were very much in the minority and were, in fact, not
21 following company policies that required employees to clock in when they commenced work, see
22 Rodes Decl. Tl 6. Likewise, his analysis of punch-outs versus system log-outs does not
23 acknowledge that the numbers (both percentages and time disparity) are likely skewed heavily by
24 employees who were not logging out at the end of the day. Long Decl. TI 7, Ex. F at 62:22-63:7,
25 66:18-68:5.
26 Without establishing that anything beyond the common question of law that supposedly
27 exists in determining whether class members are entitled to be paid for minutes of off-the-clock
28 work, Arana fails to carry his burden to put forward substantial evidence that common issues
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 predominate.^ Basurco v. 21st Century Ins. Co., 108 Cal. App. 4th 110, 118 (2003). Instead, as
2 explained beiow, individualized issues predominate and will require iimumerable mini-trials to
3 determine HNCA's liability.
4 3. Given the lack of evidence of a uniform policy or any other common method
^ of proof, individual issues predominate.
6 Because there is no uniformly applied allegedly illegal policy or any other common form
7 of proof that could establish HNCA's liability for the alleged meal period, rest period, or off-the-
8 clock violations, establishing the fact of HNCA's liability to the approximately 4,400 individual
9 putative class members will require presenting evidence that varies widely, involves factually
10 complex issues, and would require months of highly individualized mini-trials.
11 Meal and Rest Period Claims. The meal and rest period claims are inherently riddled
12 with individualized issues because, under Califomia law, an employer "satisfies [its] obligation
13 [to provide a meal period] if it relieves its employees of all duty, relinquishes control over their
14 activities and permits them a reasonable opportunity to take an unintermpted 30-minute break,
15 and does not impede or discourage them from doing so." Brinker, 53 Cal. 4th at 1040. If the
16 employer does so, but the employee chooses not to take a meal period, then there is no violation.
17 Id. at 1040-41. The same is tme of rest periods. Augustus, 2 Cal. 5th at 269 (citing Brinker,
18 53 Cal. 4th at 1038-39). Thus, the fact that time records indicate that an employee's meal or rest
19 period was missed or non-compliant does not, in and of itself, provide proof that any violation
20 occurred, and the Court will be forced to engage in highly individualized inquiries as to why each
21 employee may have taken a late meal or rest period or decided to skip a meal or rest period.
22 The evidence submitted by Arana and by HNCA only underscores the degree to which
23 individualized issues predominate.^ The only three putative class members whose declarations
24 remain in support of Arana's motion offer entirely different explanations for the meal breaks they
25 allegedly took late or missed. Cynthia Martel asserts that "due to the nature of customer service
26 •
* It is also unclear that this question of law is at all significant to this litigation, given that it was undisputedly
27 answered by the Califomia Supreme Court in Troester v. Starbucks Corp., 5 Cal. 5th 829, as modified on denial of
re/!'g (Aug. 29, 2018).
28 ^ In fact, Arana does not even pretend to be able to identify a uniform reason why meal or rest periods were allegedly
missed; he instead points to multiple contributing factors. Mot. 3:19-4:2, 4:11-13, 7:2-3, 7:17.
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DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 calls," she was "unable to take [her] lunch before the fifth hour of work because [they] [were]
2 required to stay on a call with a customer that took a long time." Martel Decl. ISO Class Cert.
3 Mot. ("Martel DecL") TI 8. Ms. Martel estimates this happened approximately twice per month.
4 Id. In her deposition, Ms. Martel clarified that her supervisor provided her with a schedule that
5 was "rigidly enforced," that she was always provided compliant rest breaks, and that she was
6 never prohibited from taking a 30-minute lunch. Long Decl. TI 5, Ex. D at 28:16-22, 36:21-24,
7 40:23^1:1. However, Ms. Martel testified that while her lunch break would be scheduled three
8 to four hours into her shift, she occasionally took a customer call that lasted over an hour and
9 caused her to take her lunch beyond thefive-hourmark. Id. at 37:19-39:19. However, when that
10 occurred, Ms. Martel did not inform her supervisor. Id. at 40:2-4.
11 By contrast, Markus Northam states that he "at times . . . chose to skip [his] lunch break in
12 order to complete all of [his] work." Markus Northam Decl. ISO Class Cert. Mot. ("Northam
13 Decl.") Tl 8. Mr. Northam testified that he could not "recall any instance in which [he] was not
14 provided a 30-minute meal break during [his] shift," Long Decl. Tl 6, Ex. E at 41:20-25, and that
15 he "was never denied a meal break before [his] fifth hour," id. at 42:5-6. While he "would
16 occasionally skip [his] lunch break" or rest breaks, Mr. Northam was clear that was "[him]
17 choosing. It wasn't a denial by [his] supervisor or anything." Id. at 42:8-18.
18 Finally, Ms. Perez now works exclusively from home, although she briefly worked at
19 HNCA's offices in Woodland Hills. She claims that she regularly missed meal periods because
20 she was scheduled in back-to-back meetings and had a heavy caseload. Long Decl. TI 8, Ex. G at
21 15:4-11, 69:1-5, 71:17-72:3. However, she testified that "nobody instmcted [her] to work
22 through [her] lunch." Id. at 68:19-21. Ms. Perez testified that she previously recorded her breaks
23 and meal periods accurately, but since 2018 she has inaccurately recorded her time to avoid what
24 she perceived to be the criticism of her supervisor's superior, despite her supervisor's instmctions
25 that she must take breaks.* Id. at 15:14-16:13, 17:8-13, 25:24-26:6.
26 Individuals who withdrew declarations originally submitted by Arana provide further
27
Ms. Perez's supervisor explains that she was unaware that Ms. Perez was inaccurately recording her time, and that
28 Ms. Perez has been counseled about time management and had her workload reduced to address her time
management issues. Susan Shaw Decl. ISO Opp. to Class Cert. Mot. 5-8.
- 13 -
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 evidence that employees' meal and rest periods were noncompliant for a variety of reasons.
2 Crystal Martinez states that her supervisor did not, in fact, require her to work through her lunch
3 breaks, and that "while there were times in which [her] workload kept [her] from going to lunch
4 until after working five hours, there were other times where [she] lost track of time and failed to
5 go to lunch at [her] scheduled time." Withdrawal Decl. of Crystal Martinez Tl ("Martinez
6 Withdrawal DecL"). Ms. Martinez stated that " i f [she] went to lunch after working five hours,
7 more often than not" this was her personal choice. Id. Similarly, Micheal Parker's Withdrawal
8 Declaration states that he "had only once worked through a lunch break—because [he] wanted to
9 finish something [he] was working on—and then afterwards [he] was counseled for not taking
10 [his] lunch break." Withdrawal Decl. of Micheal Parker TI 5 ("Parker Withdrawal DecL").
11 The declarations of additional putative class members submitted by HNCA drive home
12 the reality that employees had drastic variations among their duties as well as their meal and rest
13 period schedules, which in tum impacts the analysis as to why some employees may have taken
14 later meal or rest breaks and others may have skipped them.^ Some employees' meal and rest
15 periods are set by their supervisors or the command center. Spears FS 1. Other employees are
16 free to take breaks whenever they choose. Spears FS 2, 3. Some putative class members have
17 experienced multiple schedule changes and have had their schedules set in multiple ways over the
18 course of their employment with HNCA. Spears FS 4. Other employees have breaks scheduled
19 by their supervisors but may vary their schedule if they inform their supervisor ahead of time.
20 Spears FS 5. Some employees took breaks late or not at all for a variety of reasons having
21 nothing to do with a failure on HNCA's part to make those breaks available. Spears FS 9; Long
22 Decl. Tl 5, Ex. D at 41:3-6; Id. Tl 6, Ex. E at 42:8-18. And, of course, many employees have never
23 had any problems taking full unintermpted meal and rest periods on time. Spears FS 10.
24 Finally, although Arana contends that class members reported they did not receive second
25 meal periods when they worked more than 10 hours, most declarations supporting this "fact" have
26 been withdrawn. Mr. Northam estimated that he worked shifts over 10 hours "about four total
27
28 ' For a more in depth discussion of these declarations, see HNCA's Motion as to Why Spears' Claims Should Not
Proceed as a PAGA Representative Action, Dec. 21, 2018, at 17-19, which HNCA incorporates here by reference.
- 14-
DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION
1 times," did not take a second meal period on these shifts, and does not recall signing a second
2 meal period waiver. Long Decl. TI 6, Ex. E at 80:8-24. Whil
Preview
Filed bv fQX I TIMOTHY J. LONG (STATE BAR NO. 137591) tjIong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) 3 nhorton@orrick.com AVALON J. FITZGERALD (STATE BAR NO. 288167) FILED/ENDORSED afitzgeraId@orrick.com 4 ORRICK, HERRINGTON & SUTCLIFFE LLP FEB 1 5 2019 400 Capitol Mall, Suite 3000 5 Sacramento, CA 95814-4497 By:. M. Rubalcaha Telephone: +1 916 447 8299 Deputy Clertt 6 Facsimile: +1 916 329 4900 7 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 12 similariy situated, Plaintiff, 13 DEFENDANT HEALTH N I E T OF CALIFORNIA, INC.'S OPPOSITION TO 14 PLAINTIFFS' MOTION FOR CLASS CERTIFICATION HEALTH NET OF CALIFORNL\, INC., a 15 Califomia,Corporation; and Does i through Date: April 11, 2019 50, inclusive, Time:. - 10:00 a.m; 16 Dept: . 35 . Deferidants. Judge: Hon. Alan G. Perkins 17 Complaint Filed: April 5, 2017 18 FAC Filed: June 29, 2017 19 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017 20 others similarly situated, Consolidated Cornplaint Filed: Dec. 21, 2017 21 Plaintiff, 22 23 HEALTH NET OF CALIFORNL\, INC., a California corporation; and DOES 1-50, 24 inclusive, 25 Defendant. 26 27 28 DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION T A B L E OF CONTENTS Page 2 3 I. INTRODUCTION 1 II. FACTUAL BACKGROUND 2 4 A. Health Net of Califomia Inc 2 ^ B. Tomas Arana's Employment with HNCA 2 6 C. HNCA's Timekeeping, Meal Break, and Rest Break Policies 2 ^ D. Relevant Procedural Background 4 III. ANALYSIS ...4 ^ A. Arana Does Not Carry His Burden to Demonstrate an Ascertainable Class 5 9 B. Arana Offers No Evidence That HNCA's Liability Can Be Determined by Facts Common to All Members of the Class 6 1^ 1. HNCA's alleged lack of "policies" upon which Arana relies to certify his meal and rest break claims neither violates the law nor 1' provides classwide proof 7 12 2. Arana fails to identify a common method of proof for the alleged off-the-clock violations 10 13 3. Given the lack of evidence ofa uniform policy or any other common method of proof, individual issues predominate 12 14 C. Failure to Present a Trial Plan Is Fatal to Arana's Motion and Demonstrates 15 That a Class Action Is Not Superior or Manageable 18 16 D. Arana's Claims Are Not Typical of the Putative Class 19 E. Arana's Individual Claims Also Carmot Be Certified 20 IV. CONCLUSION 20 18 19 20 21 22 23 24 25 26 27 28 1 - DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION T A B L E OF AUTHORITIES 2 Page(s) 3 Cases 4 Alberts v. Aurora Behavioral Health Care, 5 241 Cal. App. 4th 388 (2015) 6,7 6 Augustus V. ABM Security Servs., Inc., 2 Cal. 5th 257 (2016) 9, 12 7 Basurco v. 21st Century Ins. Co., 8 108 Cal. App. 4th 110 (2003) 11 9 Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004 (2012) passim 10 \1 City of San Jose v. Superior Court, 12 Cal. 3d 447 (1974) 6 12 Duran v. U.S. Bank National Association, 59 Cal. 4th 1 (2014) 1,6,9, 18 13 Dynabursky v. AlliedBarton Sec. Servs. LP, 15 2014 WL 1654030 (CD. Cal. Apr. 24, 2014) 16 Evans V. lAC/Interactive Corp., 244 F.R.D. 568 (CD. Cal. 2007) 15 17 Faulkinbury v. Boyd & Associates, Inc., 18 216CaL App. 4th220(2013) 7 19 Franchise Tax Bd. Ltd. Liab. Corp. Tax Refund Cases, 25 Cal. App. 5th 369 (2018), reh 'g denied (Aug. 6, 2018), review denied (Oct. 31, 2018) 5 2J Hale v. Sharp Healthcare, 232 CaL App. 4th 50 (2014) 7, 8 22 Kennedy v. Baxter Healthcare Corp., 23 43 Cal. App. 4th 799 (1996) 6, 18 24 Koval V. Pac. Bell Tel. Co., 2^ 232 Cal. App. 4th 1050 (2014) 9 „, Liu V. Win Woo Trading, LLC, 2016 WL 3279466 (N.D. CaL June 15, 2016) 16 27 Martinez v. Joe's Crab Shack Holdings, 28 231 Cal. App. 4th 362 (2014), as modified on denial of reh 'g (Dec. 3, 2014) 20 - ii - DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Morgan v. Wet Seal, Inc., ^ 210 Cal. App. 4th 1341 (2012) .6, 8, 1{ Morillion v. Royal Packing Co., 22 CaL 4th 575 (2000) 16 4 Nishiki v. Danko Meredith, APC, 5 25 Cal. App. 5th 883 (2018), review denied (Nov. 14, 2018)., 20 6 Pay ton v. CSI Elec. Contractors, Inc., 27 Cal. App. 5th 832 (2018) 10, 18 7 Sav-on Drug Stores, Inc. v. Superior Court, 8 34 Cal. 4th 319 (2004) 5 9 Seastrom v. Neways, Inc., 10 149 Cal. App. 4th 1496 (2007) 19, 20 11 Troester v. Starbucks Corp., 5 Cal. 5th 829, as modified on denial of reh 'g (Aug. 29, 2018) 12 12 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338(2011) 7,9 13 Wilson V. TE Connectivity Networks, Inc., 14 2017 WL 1758048 (N.D. CaL Feb. 9, 2017) 16 15 16 Statutes 17 Cal. Code Civ. Proc. § 382 4, 5 18 Cal. Code Regs. tiL 8, § 11020( 12) 9 19 Cal. Code Regs. tiL 8, § 13520 20 Cal. Lab. Code § 203 20 21 22 23 24 25 26 27 28 - Ill - DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 I. INTRODUCTION 2 Plaintiff Tomas Arana's motion for class certification demonstrates, in and of itself, that 3 class certification is not warranted in this case. Indeed, Arana scarcely articulates a coherent 4 theory supporting certification. Attempting to establish predominance, he argues that a uniform 5 lack of a policy will provide classwide proof on the meal and rest period claims. Yet Arana does 6 not explain how the specific policy Health Net of Califomia, Inc. ("HNCA") supposedly lacks— 7 one informing employees of their recourse should they miss a meal or rest period—might permit 8 Arana to prove HNCA's liability for meal and rest period violations across the putative class. 9 Because there is no requirement that a company have such policies, HNCA's alleged lack of such 10 a policy in no way permits for classwide proof. Nor does Arana provide any evidence, as he 11 must, that HNCA lacked such a policy. Of the 15 putative class member declarations submitted 12 by Arana, only three have not been withdrawn and none of those remaining address this issue. 13 Proving meal and rest period violations for the putative class of approximately 4,400 employees 14 will therefore require individualized mini-trials, which will pose significant manageability issues. 15 The off-the-clock claims fare no better. Arana does not even attempt to point to a uniform 16 policy (or lack of one). He merely insists that HNCA's alleged "computer and software start time 17 procedures give rise to predominate questions of fact and law," and contends that a common 18 question of law exists as to whether employees should be compensated for off-the-clock time. 19 But Arana does not point to any common method of proof and ignores that there must be common 20 questions offact, and not just law, to warrant certification. Because individual issues clearly 21 predominate on these claims. .Arana's motion for class certification must be denied. 22 Arana's motion suffers from additional shortcomings. He fails to carry his burden to 23 demonstrate that the class is ascertainable or that his claims are typical of the class. Perhaps most 24 critically, Arana did not submit a trial plan to demonstrate how the putative class's claims might 25 be tried in a manageable way. Under ZJwra/? v. U.S. Bank National Association, 59 Cal. 4th 1 26 (2014), Arana's failure to present any trial plan to the Court, let alone a workable trial plan, to 27 address the myriad individualized issues presented by this case dictates that class certification 28 must be denied. - 1- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 Finally, and tellingly, despite being titled "Plaintiffs" motion for class certification, 2 Arana's co-Plaintiff Andrea Spears has not joined the motion and does not seek to serve as a class 3 representative in this case. HNCA can only assume this is because Arana's own co-Plaintiff 4 recognizes that Arana's motion has no merit. 5 II. FACTUAL BACKGROUND 6 A. Health Net of California, Inc. 7 HNCA is a health maintenance organization that operates in Sacramento County and in 8 Southem Califomia. Decl. of Diane Rodes ISO Mot. Why Arana's Case Should Not Proceed as a 9 PAGA Representative Action ("Rodes Decl."), Dec. 21, 2019, H 2. HNCA provides health 10 insurance products such as commercial HMO plans and healthcare service plans. Id. 11 B. Tomas Arana's Emplovment with HNCA. 12 Arana is currently employed by HNCA at its Sun Center, Rancho Cordova facility. Rodes 13 Decl. TI3. Arana was hired in 2008 as a non-exempt employee. Timothy J. Long Decl. ISO 14 Oppo. to Class Cert. MoL ("Long DecL") H 2, Ex. A at 101:15-17; Rodes Decl. ^ 3. He remained 15 a non-exempt employee until he was promoted effective November 15, 2015, to the exempt 16 position (Contact Center Analyst) he currently holds. Long Decl. | 2, Ex. A at 114:24-115:2; 17 Rodes Decl. Tl 3. 18 C. HNCA's Timekeeping, Meal Break, and Rest Break Policies. 19 Timekeeping Policy. HNCA's policies have always been to require that employees record 20 their actual in and out times. Rodes Decl. ^ 6; Summary of Evidence Submitted in Support of 21 Motion as to Why Arana's Case Should Not Proceed as a PAGA Representative Action, Dec. 21, 22 2018, Factual Statement ("Arana FS") 1.' Indeed, HNCA's timekeeping system has always 23 permitted employees to manually type in their start and stop times and HNCA's policies required 24 Arana and all other call center employees to accurately enter their time. Rodes Decl. ^ 6-7 & 25 Ex. A; Arana FS 2; Long Decl. ^ 3, Ex. B at 86:14-18. Arana himself testified that he 26 I For the Court's convenience, rather than refile the numerous witness declarations submitted in support of its PAGA motions on December 21, 2018, HNCA refers to and incorporates by reference the Summary of Evidence Submitted 27 in S pport the Motion as to Why Arana's Case Should Not Proceed as a PAGA Representative Action, the Summary of Evidence Submitted in Support the Motion as to Why Spears' Case Should Not Proceed as a PAGA 28 Representative Action ("Spears FS"), and the Compendium of Witness Declarations in Support of Defendant Health Net of Califomia, Inc.'s Motions as to Why Plaintiffs' Cases Should Not Proceed as PAGA Representative Actions. -2- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 "understood that the company policy was for [him] to accurately record the time [he] worked," 2 and that "[he] was instmcted to put in [his] actual time[,] which [he] did . . . ." Long Decl. ^ 2, 3 Ex. A at 56:20-23, 57:21-23. This "include[d] when [he] started work, [and] when and if [he] 4 took a meal break . . . ." Id. at 57:24-58:1. Arana agreed that "the expectation of the company 5 was that [he] accurately record[ed] the hours that [he] worked," and that he did that "to the best of 6 [his] ability." Id. at 58:6-11. 7 During the relevant time period, HNCA's policies required employees to use a program 8 called PeopleSoft to log their time for purposes of payroll. Long Decl. \ 3, Ex. B at 54:4-5. On 9 January 1,2017, HNCA switched to using the EMPCenter timekeeping system for this purpose, 10 and its policies changed accordingly. Id. at 54:6-7; Rodes Decl. ^ 7. The EMPCenter 11 timekeeping system is a web-based system that permits employees to log their time by clicking a 12 button. PeopleSoft and EMPCenter have both always permitted employees to manually enter 13 their start and stop times. Rodes Decl. ^ 7. Although some employees used their desk phones to 14 indicate their availability to take phone calls, during the relevant time period employees never 15 used the phone system to log their time for purposes of payroll. Will Montes Decl. ISO Oppo. to 16 Class Cert. MoL ("Montes DecL"), Feb. 15, 2019, HI 3-5. 17 Meal Break Policy. HNCA's meal break policy complied with Califomia law at all 18 relevant times. Rodes Decl. ISO Mot. Why Spears' Claims Should Not Proceed as PAGA 19 Representative Action ("Rodes [Spears] DecL"), Dec. 21, 2018, Iffl 12-13 & Exs. B, C; Long 20 Decl. Tl 3, Ex. B at 88:21-89:4, 89:14-18, 91:8-92:19. HNCA provided employees with a 30- 21 minute meal period before their fifth hour of work, and employees who missed meal periods 22 received appropriate penalties. Long Decl. Tl 3, Ex. B at 88:21-89:1, 89:14-18. Arana testified 23 that he "understood that the company's policy was that [he] [was] to be provided with 30- 24 minute—at least 30 minute lunches during which [he] [was] not supposed to be doing any work," 25 as well as second meal periods for shifts that went longer than 11 hours (unless waived). Id. Tl 2, 26 Ex. A at 55:3-11,85:16-86:19. 27 Rest Break Policy. HNCA's rest break policy likewise complied with Califomia law at 28 all relevant times. Rodes [Spears] Decl. TITI 12-13 & Exs. B, C. HNCA's policy has always been -3 - DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 to permit employees to take a 15-minute rest period for every four hours worked, or major 2 fraction thereof M Tl 12 & Exs. B, C. Again, Arana's testimony confirms this fact. He testified 3 that the company's policy was "to provide [him] with rest breaks every four hours or fraction 4 thereof," and the "company's policy . . . was to provide its employees with 15-minute rest 5 breaks . . . ." Long Decl. Tl 2, Ex. A at 46:15-23. Thus, not only does HNCA's rest-break policy 6 comply with Califomia law, it provides more than the law requires. 7 D. Relevant Procedural Background 8 On December 21, 2018, Arana filed the instant motion for class certification. This motion 9 does not request Spears' appointment as a class representative, nor has Spears joined the motion.^ 10 On the same day, HNCA filed its Motions as to Why Plaintiffs' Claims Should Not Proceed as 11 PAGA Representative Actions. 12 Arana's motion for class certification was originally supported by the declarations of 15 13 putative class members. Since filing his motion, Arana has voluntarily withdrawn the 14 declarations of Neyva Aleman, Toby Alfred, James Bjorseth, Patricia Gonzales, Veronica Perez, 15 and Shanel Allen. Putative class members Sheena Boehl, Ana Martinez Gutierrez, Crystal 16 Martinez, Mynor Masaya, Micheal Parker, and Charles Pearson have each signed a declaration 17 withdrawing the declaration submitted in support of Arana's motion (cited as the "Withdrawal 18 Declarations"). Accordingly, only three declarations—those of Cynthia Martel, Markus 19 Northam, and Maria Del Pilar Perez—remain in support of Arana's motion. 20 III. ANALYSIS 21 Arana faces a high certification standard that he fails to meet. Arana "must demonstrate 22 the existence of an ascertainable and sufficiently numerous class, a well-defined community of 23 interest, and substantial benefits from certification that render proceeding as a class superior to 24 the altematives." Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1021 (2012); Cal. 25 Code Civ. Proc. § 382. To satisfy the "community of interest" requirement, Arana must offer 26 substantial evidence that his claims are typical of the class he seeks to represent, that he is an 27 - It is now too late for Spears to do so, as the deadline set by this Court for Plaintiffs to seek class certification has 28 long since passed. Thus, it is solely on Arana's motion that the Court must decide whether class certification is appropriate. -4- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 adequate representative, and that common questions of fact and law predominate over individual 2 issues in the case, making class litigation both manageable and superior to individual litigation. 3 Brinker, 53 Cal. 4th at 1021; Sav-on Drug Stores, Inc. v. Superior Court, 34 Cal. 4th 319, 326 4 (2004); Code Civ. Proc. § 382. 5 Here, the Court must deny Arana's motion because (1) Arana does nothing to demonstrate 6 that the class is ascertainable; (2) there is not a well-defined community of interest; 7 (3) certification is not a superior method of adjudication, as evidenced by Arana's failure to 8 propose a trial plan; and (4) Arana's claims are not typical of the class he seeks to represent. 9 A. Arana Does Not Carry His Burden to Demonstrate an Ascertainable Class. 10 Arana asserts that the class is ascertainable because "Defendants can identify non-exempt 11 employees, as shown by the fact that Defendants produced a class list in discovery." Mot. 6:1-2. 12 This single sentence is hardly sufficient to meet Arana's burden, as "[a]scertainability is achieved 13 'by defining the class in terms of objective characteristics and common transactional facts making 14 the ultimate identification of class members possible when that identification becomes 15 necessary.'" Franchise Tax Bd. Ltd. Liab. Corp. Tax Refund Cases, 25 Cal. App. 5th 369, 389 16 (2018), reh 'g denied (Aug. 6, 2018), review denied (Oct 31, 2018) (citations omitted). This 17 analysis requires examining "the class definition, the size ofthe class and the means of 18 identifying class members." /c/. (citation and emphasis omitted). Despite these clear 19 requirements, Arana does absolutely nothing to explain how the definitions for the proposed class 20 and subclasses provide a reasonable means of identifying potential class members. 21 Arana's lack of effort on this front is perhaps unsurprising. The "class list" HNCA 22 produced in discovery is the Belaire- West list, which contains not only the names of all non- 23 exempt employees but also the names of exempt employees who were allegedly misclassified. 24 Some of the non-exempt employees were included on the basis that they received bonuses that 25 Plaintiffs claimed should have been included in the regular rate. Because Arana does not seek to 26 certify class claims related to misclassification or regular rate violations related to bonuses, this 27 "list" is undoubtedly inaccurate and overbroad and in no way evidences the ascertainability of the 28 class Arana now seeks to certify. -5- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION Moreover, Arana offers proposed class definitions that are inherently problematic. The 2 class definition includes not only all persons employed by HNCA—the defendant in this action— 3 but Health Net, Inc., which is not a party. Mot. 1:17. The subclass definitions similarly refer to 4 "Defendants," despite the fact that HNCA is the sole defendant in this action. Id. 1:22, 2:5, 2:7. 5 Moreover, the "Off-the-Clock Telephone Time Sub-Class" is hopelessly vague, as it refers to 6 "other electronic records" and "other electronic systems"—terms so broad and undefined as to be 7 virtually meaningless. Id. 1:22-24. Due to these critical flaws, the class definitions do not 8 provide a basis to readily ascertain class members. 9 B. Arana Offers No Evidence That HNCA's Liability Can Be Determined bv Facts Common to All Members of the Class. 10 11 To establish that common questions predominate over individual issues in the case, Arana 12 must "do more than simply show that common issues exist. Rather, [he] need[s] to 'place 13 substantial evidence in the record that common issues predominate.'" Morgan v. Wet Seal, Inc., 14 210 Cal. App. 4th 1341, 1354-55 (2012) (citation omitted). A class will be certified only i f the 15 plaintiff demonstrates that the "defendant's liability can be determined by facts common to all 16 members of the class." Brinker, 53 Cal. 4th at 1022 (emphasis added). "In deciding whether the 17 common questions 'predominate,' courts must. . . identify the common and individual issues; 18 consider the manageability of those issues; and taking into account the available management 19 tools, weigh the common against the individual issues to determine which of them predominate." 20 Alberts v. Aurora Behavioral Health Care, 241 Cal. App. 4th 388, 397 (2015) (intemal quotations 21 and citation omitted). Common questions do not predominate, and "the class format is 22 inappropriate," if the ability of each class member to recover depends on a set of facts applicable 23 only to him or her, causing the "class action [to] splinter into individual trials." Kennedy v. 24 Baxter Healthcare Corp., 43 Cal. App. 4th 799, 809-10 (1996); see also Duran, 59 Cal. 4th 25 at 28-29; City of San Jose v. Superior Court, 12 Cal. 3d 447, 459 (1974) (class treatment not 26 appropriate " i f every member of the alleged class would be required to litigate numerous and 27 substantial questions determining his individual right to recover . . . ."). 28 Here, Arana claims that HNCA's uniform lack of a policy informing employees of their -6- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 recourse should they miss a meal or rest period provides common proof for claimed meal and rest 2 period violations across the class. For off-the-clock claims, Arana asserts that the common 3 question of whether employees should be compensated for time worked off-the-clock suffices to 4 establish that common issues predominate. As explained below, these half-baked theories align 5 with neither the facts nor the law, making clear that individualized issues predominate. 6 I. HNCA's alleged lack of "policies" upon which Arana relies to certify his meal ^ and rest break claims neither violates the law nor provides classwide proof. 8 To establish that HNCA's liability for meal and rest period violations can be proved on a 9 classwide basis, Arana contends that HNCA uniformly lacks certain "policies," which provides a 10 common means of proving HNCA's liability to class members. MoL 7:3-5, 18-20. This 11 contention is both factually and legally inaccurate. To be sure, courts have held that where the 12 plaintiffs theory of liability is that the employer "has a uniform policy" that "allegedly violates 13 the law," there exists "a common question eminently suited for class treatment." Brinker, 53 Cal. 14 4th at 1033; see also Alberts, 241 Cal. App. 4th at 409; Faulkinbury v. Boyd & Associates, Inc., 15 216 Cal. App. 4th 220, 235 (2013). However, to warrant class treatment, the employer's alleged 16 policy must be an illegal policy, uniformly applied to all class members, that provides a means of 17 common proof on an element of the plaintiffs' claims. E.g.,'Hale v. Sharp Healthcare, 232 Cal. 18 App. 4th 50, 61-62 (2014) (listing cases); see also Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 19 352-55 (2011). 20 That is not the case here. Instead, where, as here, there is "neither a common policy nor a 21 common method of proof," a plaintiffs claims cannot be certified. Brinker, 53 Cal. 4th at 1051. 22 Thus, in Brinker, where "[t]he only formal Brinker off-the-clock policy submitted disavow[ed] 23 such work, consistent with state law," the plaintiffs' off-the-clock claims could not be certified. 24 Id. More specifically, class certification was inappropriate because "liability [was] contingent on 25 proof Brinker knew or should have known off-the-clock work was occurring," and 'fnjothing 26 before the trial court demonstrated how this could be shown through common proof, in the 27 absence of evidence ofa uniform policy or practice.'' Id. at 1051-52 (emphasis added). Thus, the 28 plaintiffs' inability to point to a common policy or practice doomed their request for class -7- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 certification on the off-the-clock claim. 2 In this case, Arana does not even attempt to point to a uniformly applied unlawfiil written 3 policy providing classwide proof of HNCA's liability for meal period or rest period violations. 4 This is because, as Arana himself testified, HNCA's policies complied with Califomia law at all 5 relevant times. Long Decl. Tl 2, Ex. A at 46:15-23, 55:3-11, 85:16-86:19; Rodes [Spears] Decl. 6 TlTl 12-13 & Exs. B, C. Arana's co-Plaintiff Spears confirmed this testimony, stating 7 unequivocally that HNCA's meal break policy was to permit employees to take a 30-minute 8 break within the first five hours of a shift, and that HNCA's rest break policy was to provide non- 9 exempt employees with a 15-minute rest break for every four hours of a shift.^ Long Decl. Tl 4, 10 Ex. C at 40:6^2:1, 202:6-12. Other putative class members likewise testified that HNCA's 11 policies complied with Cahfomia law. Long Decl. Tl 5, Ex. D at 34:11-35:11; M Tl 6, Ex. E at 12 41:5-42:14,42:20-25,43:2-5. 13 Arana's case thus falls squarely into the category of cases in which there is no uniform 14 unlawful policy that would establish that the alleged Labor Code violations occurred. 15 Determining "the fact of damage" therefore requires individualized inquiries or evidence, making 16 class certification improper. Hale, 232 Cal. App. 4th at 62. Morgan v. Wet Seal, Inc., 210 Cal. 17 App. 4th 1341 (2012) is directly on point. There, the plaintiffs claimed that Wet Seal "violated 18 Califomia law by requiring employees to . . . purchase Wet Seal clothing and merchandise as a 19 condition of employment." Id. at 1344. But the court found that the employees' claim was not 20 susceptible to common proof because the company's written policies explicitly stated that 21 employees were not required to purchase and wear company- merchandise, and thus the policy 22 was not illegal. Id. at 1356, 1364. The same is tme here. Because HNCA's policies were legally 23 compliant at all relevant times, they do not and cannot provide the basis for class certification. 24 Perhaps recognizing this fact, Arana instead attempts to find a uniform theory of recovery 25 for the meal and rest break claims based on invented deficiencies in HNCA's policies. Arana 26 asserts that putative class members' meal period violations were caused by HNCA's "lack of 27 28 ^ Spears testified that her understanding was that employees were to be provided with a rest break every two hours. Long Decl. 1 4, Ex. C at 40:22-23, 201:25-202:20. -8- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 enforced policies designed to advise the Class of their recourse when the demands of their 2 employer interfered with the ability to take breaks . . . ." Mot. 7:3-5. He similarly claims that 3 rest period violations occurred because HNCA's "rest break policy was deficient in that it failed 4 to include clear provisions for employee recourse when the demands of the employer interfered 5 with the ability to take a duty-free rest break." Mot. 8:2-4. These assertions fly in the face of 6 ample evidence that HNCA trained and informed its employees regarding its meal and rest period 7 requirement policies. Long Decl. Tl 3, Ex. B at 91:11-13, 91:24-92:2, 92:13-19, 93:6-11 &Exs. 8 15 ("Example of Califomia Meal Exception"), 17 (quarterly memo to supervisors); Id. TI 5, Ex. D 9 at 35:8-25; Arana FS 4. Moreover, and critically, Arana does not point to any case, statute. Wage 10 Order provision, or regulation dictating that employers must have such a policy. Thus, HNCA's 11 alleged lack of such a policy cannot be "illegal" and does not support certification.'' Cf Brinker, 12 53 Cal. 4th at 1033; Duran, 59 Cal. 4th at 31 n.28 ("[S]ome courts have held that the absence ofa 13 uniform policy supports certification if such a policy is required by law."). 14 To be clear, even assuming HNCA lacks directives informing employees of their recourse 15 when employer demands interfered with their meal and rest periods, this fact would do nothing to 16 prove HNCA's liability to the class for meal and rest period violations. To prevail on the claim 17 for meal period violations, the class members must prove that HNCA did not provide "a meal 18 period of not less than 30 minutes once an employee has worked for five hours." Augustus v. 19 ABM Security Servs., Inc., 2 Cal. 5th 257, 266 (2016) (citations omitted). Likewise, to prevail on 20 the claim for alleged rest period violations, the class members must prove that HNCA failed to 21 provide ten minutes net rest time for every four hours of work (or major fraction thereof). Cal. 22 Code Regs. tit. 8, § 11020(12). Accordingly, determining whether HNCA lacked such a policy 23 would not "resolve an issue that is central to the validity of each one of the claims in one stroke." 24 Dukes, 564 U.S. at 350; Brinker, 53 Cal. 4th at 1021-22 (certification may be appropriate " i f the 25 defendant's liability can be determined by facts common to all members of the class"). In other 26 To the extent Arana contends that HNCA had such policies but they were not enforced, the result does not change. 27 Courts have denied certification where the policies, although perhaps facially uniform, are not articulated or implemented consistently. Koval v. Pac. Bell Tel. Co., 232 Cal. App. 4th 1050, 1062 (2014). Arana presents no 28 evidence that this alleged lack of enforcement was uniform, nor can he, given the evidence that many employees took compliant meal and rest breaks. -9- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 words, proving that HNCA lacked directives informing employees of their recourse when 2 employer demands interfered with their meal and rest periods would in no way provide classwide 3 proof on any element of the class meal or rest period claims. 4 Arana faces an additional barrier to certification, as he fails to satisfy his burden of 5 providing "substantial evidence" that HNCA lacks these alleged directives. Pay ton v. CSI Elec. 6 Contractors, Inc., 27 Cal. App. 5th 832, 842 (2018) (a plaintiff "may not simply allege a uniform 7 policy or practice," but must submit "substantial evidence" that such a policy exists); see also 8 Brinker, 53 Cal. 4th at 1033. Only five of the fifteen declarations originally submitted by Arana 9 address the issue at all. See Aleman Decl. ISO Class Cert. Mot. Tl 6; Alfred Decl. ISO Class Cert. 10 Mot. Tl 4; Allen Decl. ISO Class Cert. Mot. Tl 7; Bjorseth Decl. ISO Class Cert. Mot. Tl 5; Boehl 11 Decl. ISO Class Cert. MoL TI 8. Ms. Boehl has voluntarily withdrawn her declaration. Boehl 12 Withdrawal Decl. Tl 5. Arana's own counsel stipulated to withdraw the declarations of Ms. 13 Aleman, Mr. Alfred, Ms. Allen, and Mr. Bjorseth. Stipulation to Withdraw Declarations, Feb. 7, 14 2019, at 3. As a result, there is not one declaration by a putative class member—out of the 4,400 15 class members Arana seeks to represent—providing evidence of the supposed lack of policy that 16 serves as the basis for class certification. The allegedly uniform lack of policy is therefore 17 nothing more than "wishful thinking," Pay ton, 27 Cal. App. 5th at 842, and Arana fails to carry 18 his burden. 19 2. Arana fails to identify a common method of proof for the alleged off-the-clock violations. 20 21 With respect to his off-the-clock claims, Arana does not actually point to a uniform policy 22 or lack of policy as a basis for establishing that common issues predominate.^ Arana instead 23 vaguely asserts that HNCA's alleged "computer and software start time procedures giveriseto 24 predominate questions of fact and law," and contends that there is a common question of law as 25 to whether employees should be compensated for off-the-clock time. Mot. 8:19-20, 9:1, 9:15- 26 17:19. Arana provides a lengthy (albeit irrelevant) dissertation on the Califomia Supreme Court's 27 - Again, this is likely because HNCA had a compliant off-the-clock policy at all relevant times. See, e.g., Rodes 28 Decl. H 6 & Ex. A; Long Decl. H 3, Ex. B at 86:14-18; Jd. % 6, Ex. E at 33:22-24 (testifying that "Health Net's timekeeping policy was to accurately report all time worked"). -10- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 jurispmdence related to an employer's obligation to compensate employees for "small amounts of 2 time," and contends that certification is proper because "common questions of law can be applied 3 to test the legality of Defendants'pay practices." MoL 9:15-16. Even assuming the question of 4 whether such time is compensable and theoretically may be resolved on a classwide basis, Arana 5 nonetheless offers no common method of proof for the claimed off-the-clock violations. 6 Even Arana's expert, James Toney, does not provide evidence establishing that off-the- 7 clock work occurred or that supervisors were aware such work was occurring. To the contrary, 8 Toney testified that he was not retained to express this opinion and that he could not come to this 9 conclusion based solely on the records. Long Decl. Tl 7, Ex. F at 68:15-18, 70:8-24. Indeed, he 10 testified unequivocally that he was not asked to opine, and in fact did not opine, as to whether 11 employees were working off the clock. Id. at 70:8-24, 72:10-73:6, 74:5-7. Rather, he agreed 12 that he did "not have the data to assess whether work was being performed," and that his analysis 13 did not cover "any kind of activity as far as what was or was not being done." Id. at 72:23-25, 14 73:1-6. Accordingly, the conclusions drawn by Arana's counsel—that "the telephone log-in 15 records and payroll timekeeping records confinn unequivocally that off-the-clock work 16 occurred"—has absolutely no basis in facL as Arana's expert himself confirmed. Mot. 3:8-9; 17 Long Decl. Tl 7, Ex. F at 71:9-72:25. Moreover, while Toney states that data shows that time 18 entry occurred after employees logged into the system in 4.8% of the records, Toney Decl. ISO 19 Class Cert. Mot. Tl 11, this low percentage indicates that any employees who clocked in after 20 logging into their computer system were very much in the minority and were, in fact, not 21 following company policies that required employees to clock in when they commenced work, see 22 Rodes Decl. Tl 6. Likewise, his analysis of punch-outs versus system log-outs does not 23 acknowledge that the numbers (both percentages and time disparity) are likely skewed heavily by 24 employees who were not logging out at the end of the day. Long Decl. TI 7, Ex. F at 62:22-63:7, 25 66:18-68:5. 26 Without establishing that anything beyond the common question of law that supposedly 27 exists in determining whether class members are entitled to be paid for minutes of off-the-clock 28 work, Arana fails to carry his burden to put forward substantial evidence that common issues - 11 - DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 predominate.^ Basurco v. 21st Century Ins. Co., 108 Cal. App. 4th 110, 118 (2003). Instead, as 2 explained beiow, individualized issues predominate and will require iimumerable mini-trials to 3 determine HNCA's liability. 4 3. Given the lack of evidence of a uniform policy or any other common method ^ of proof, individual issues predominate. 6 Because there is no uniformly applied allegedly illegal policy or any other common form 7 of proof that could establish HNCA's liability for the alleged meal period, rest period, or off-the- 8 clock violations, establishing the fact of HNCA's liability to the approximately 4,400 individual 9 putative class members will require presenting evidence that varies widely, involves factually 10 complex issues, and would require months of highly individualized mini-trials. 11 Meal and Rest Period Claims. The meal and rest period claims are inherently riddled 12 with individualized issues because, under Califomia law, an employer "satisfies [its] obligation 13 [to provide a meal period] if it relieves its employees of all duty, relinquishes control over their 14 activities and permits them a reasonable opportunity to take an unintermpted 30-minute break, 15 and does not impede or discourage them from doing so." Brinker, 53 Cal. 4th at 1040. If the 16 employer does so, but the employee chooses not to take a meal period, then there is no violation. 17 Id. at 1040-41. The same is tme of rest periods. Augustus, 2 Cal. 5th at 269 (citing Brinker, 18 53 Cal. 4th at 1038-39). Thus, the fact that time records indicate that an employee's meal or rest 19 period was missed or non-compliant does not, in and of itself, provide proof that any violation 20 occurred, and the Court will be forced to engage in highly individualized inquiries as to why each 21 employee may have taken a late meal or rest period or decided to skip a meal or rest period. 22 The evidence submitted by Arana and by HNCA only underscores the degree to which 23 individualized issues predominate.^ The only three putative class members whose declarations 24 remain in support of Arana's motion offer entirely different explanations for the meal breaks they 25 allegedly took late or missed. Cynthia Martel asserts that "due to the nature of customer service 26 • * It is also unclear that this question of law is at all significant to this litigation, given that it was undisputedly 27 answered by the Califomia Supreme Court in Troester v. Starbucks Corp., 5 Cal. 5th 829, as modified on denial of re/!'g (Aug. 29, 2018). 28 ^ In fact, Arana does not even pretend to be able to identify a uniform reason why meal or rest periods were allegedly missed; he instead points to multiple contributing factors. Mot. 3:19-4:2, 4:11-13, 7:2-3, 7:17. - 12- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 calls," she was "unable to take [her] lunch before the fifth hour of work because [they] [were] 2 required to stay on a call with a customer that took a long time." Martel Decl. ISO Class Cert. 3 Mot. ("Martel DecL") TI 8. Ms. Martel estimates this happened approximately twice per month. 4 Id. In her deposition, Ms. Martel clarified that her supervisor provided her with a schedule that 5 was "rigidly enforced," that she was always provided compliant rest breaks, and that she was 6 never prohibited from taking a 30-minute lunch. Long Decl. TI 5, Ex. D at 28:16-22, 36:21-24, 7 40:23^1:1. However, Ms. Martel testified that while her lunch break would be scheduled three 8 to four hours into her shift, she occasionally took a customer call that lasted over an hour and 9 caused her to take her lunch beyond thefive-hourmark. Id. at 37:19-39:19. However, when that 10 occurred, Ms. Martel did not inform her supervisor. Id. at 40:2-4. 11 By contrast, Markus Northam states that he "at times . . . chose to skip [his] lunch break in 12 order to complete all of [his] work." Markus Northam Decl. ISO Class Cert. Mot. ("Northam 13 Decl.") Tl 8. Mr. Northam testified that he could not "recall any instance in which [he] was not 14 provided a 30-minute meal break during [his] shift," Long Decl. Tl 6, Ex. E at 41:20-25, and that 15 he "was never denied a meal break before [his] fifth hour," id. at 42:5-6. While he "would 16 occasionally skip [his] lunch break" or rest breaks, Mr. Northam was clear that was "[him] 17 choosing. It wasn't a denial by [his] supervisor or anything." Id. at 42:8-18. 18 Finally, Ms. Perez now works exclusively from home, although she briefly worked at 19 HNCA's offices in Woodland Hills. She claims that she regularly missed meal periods because 20 she was scheduled in back-to-back meetings and had a heavy caseload. Long Decl. TI 8, Ex. G at 21 15:4-11, 69:1-5, 71:17-72:3. However, she testified that "nobody instmcted [her] to work 22 through [her] lunch." Id. at 68:19-21. Ms. Perez testified that she previously recorded her breaks 23 and meal periods accurately, but since 2018 she has inaccurately recorded her time to avoid what 24 she perceived to be the criticism of her supervisor's superior, despite her supervisor's instmctions 25 that she must take breaks.* Id. at 15:14-16:13, 17:8-13, 25:24-26:6. 26 Individuals who withdrew declarations originally submitted by Arana provide further 27 Ms. Perez's supervisor explains that she was unaware that Ms. Perez was inaccurately recording her time, and that 28 Ms. Perez has been counseled about time management and had her workload reduced to address her time management issues. Susan Shaw Decl. ISO Opp. to Class Cert. Mot. 5-8. - 13 - DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 evidence that employees' meal and rest periods were noncompliant for a variety of reasons. 2 Crystal Martinez states that her supervisor did not, in fact, require her to work through her lunch 3 breaks, and that "while there were times in which [her] workload kept [her] from going to lunch 4 until after working five hours, there were other times where [she] lost track of time and failed to 5 go to lunch at [her] scheduled time." Withdrawal Decl. of Crystal Martinez Tl ("Martinez 6 Withdrawal DecL"). Ms. Martinez stated that " i f [she] went to lunch after working five hours, 7 more often than not" this was her personal choice. Id. Similarly, Micheal Parker's Withdrawal 8 Declaration states that he "had only once worked through a lunch break—because [he] wanted to 9 finish something [he] was working on—and then afterwards [he] was counseled for not taking 10 [his] lunch break." Withdrawal Decl. of Micheal Parker TI 5 ("Parker Withdrawal DecL"). 11 The declarations of additional putative class members submitted by HNCA drive home 12 the reality that employees had drastic variations among their duties as well as their meal and rest 13 period schedules, which in tum impacts the analysis as to why some employees may have taken 14 later meal or rest breaks and others may have skipped them.^ Some employees' meal and rest 15 periods are set by their supervisors or the command center. Spears FS 1. Other employees are 16 free to take breaks whenever they choose. Spears FS 2, 3. Some putative class members have 17 experienced multiple schedule changes and have had their schedules set in multiple ways over the 18 course of their employment with HNCA. Spears FS 4. Other employees have breaks scheduled 19 by their supervisors but may vary their schedule if they inform their supervisor ahead of time. 20 Spears FS 5. Some employees took breaks late or not at all for a variety of reasons having 21 nothing to do with a failure on HNCA's part to make those breaks available. Spears FS 9; Long 22 Decl. Tl 5, Ex. D at 41:3-6; Id. Tl 6, Ex. E at 42:8-18. And, of course, many employees have never 23 had any problems taking full unintermpted meal and rest periods on time. Spears FS 10. 24 Finally, although Arana contends that class members reported they did not receive second 25 meal periods when they worked more than 10 hours, most declarations supporting this "fact" have 26 been withdrawn. Mr. Northam estimated that he worked shifts over 10 hours "about four total 27 28 ' For a more in depth discussion of these declarations, see HNCA's Motion as to Why Spears' Claims Should Not Proceed as a PAGA Representative Action, Dec. 21, 2018, at 17-19, which HNCA incorporates here by reference. - 14- DEFENDANT'S OPPOSITION TO PLAINTIFFS' MOTION FOR CLASS CERTIFICATION 1 times," did not take a second meal period on these shifts, and does not recall signing a second 2 meal period waiver. Long Decl. TI 6, Ex. E at 80:8-24. Whil