Preview
1 Shaun Setareh (SBN 204514)
shaun@setarehlaw.com
2 William M. Pao (SBN 219846)
william@setarehlaw.com
3 Jose Maria D. Patino, Jr. (SBN 270194)
jose@setarehlaw.com ILEO/Ef^DOBSEO
4 SETAREH LAW GROUP
315 South Beverly Drive, Suite 315
5 Beveriy Hills, Califomia 90212 MAY - 7 2020
Telephone (310) 888-7771
6 Facsimile (310)888-0109 By:. H. PEMELTON
Deputy Clerk
7 Attomeys for Plaintiff
TOMAS R. ARANA
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNL\
10 FOR THE COUNTY OF SACRAMENTO
II COMPLEX GIVIL LITIGATION
12
13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
14 similarly situated.
Assigned For All Purposes to the Honorable
15 Plaintiff, David de Alba, Department 41
16 PLAINTIFF'S OPPOSITION TO
HEALTH NET OF GALIFORNL\, INC., a DEFENDANT HEALTH NET OF
17 Califomia Corporation; and Does 1 through CALIFORNIA, INC.'S MOTION TO
50, inclusive. STRIKE TOMAS R. ARANA'S
18 REPRESENATIVE PAGA CLAIMS
Defendants.
19 Date: April 3, 2020
Time: 1:30 p.m.
20 TOMAS R. ARANA, on behalf of himself, all Courtroom: Department 41
others similarly situated. BY FAX
21 Original Complaint Filed: April 5,2017
Plaintiff, FAC Filed: June 29,2017
22 Consolidated Complaint Filed: Dec. 21,2017
23
HEALTH NET OF CALIFORNIA, INC., a
24 Califomia corporation; and DOES 1-50,
inclusive,
25
Defendants.
26
27
28
PLAINTIFF'S OPPOSmON TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 I. INTRODUCTION
2 As an initial matter, the Court should deny Defendant HEALTH NET OF CALIFORNIA,
3 INC.'S ("HNCA") motion as procedurally improper and abusive. To date, HNCA has filed 4
4 summary adjudication motions (an initial motion - which was granted in part and denied in part -
5 and a renewed motion which was wholly denied, both of which sought, to dispose of PlaintifFs
6 PAGA claims, among other Is) against Plaintiff Spears and Arana. In doing so, HNCA violates
7 page limit requirements' and attempts to overwhelm PlaintifFs counsel by filing yet another
8 dispositive motion, this time aimed solely at PlaintifFs PAGA claims.
9 HNCA seeks to avoid any PAGA liability for these wage and hour violations based,
10 primarily, on procedural pounds - arguing that Plaintiffs 2017 Notice of his PAGA claim was
11 deficient. This argument is utterly without merit and provides no basis for immunizing HNCA's
12 wrongful conduct. HNCA argument that the PAGA notice is deficient myopically focuses on the
13 name of the timekeeping system in place beginning January 1, 2017 rather than what it does allege,
14 specifically that HNCA's timekeeping system failed to capture all the time worked by its
15 employees.
16 As asserted in the Consolidated Complaint filed on December 22, 2017, Plaintiff exhausted
17 his administrative prerequisites under PAGA and has a statutory right to proceed with his PAGA
18 clauns as a private attomey general. However, despite the fact that HNCA was aware of PlaintifFs
19 PAGA allegations for more than eighteen months and already answered the Consolidated
20 Complaint, HNCA now improperly asks this Court to strike PlaintifFs PAGA claims. HNCA's
21 Motion to Strike PlaintifPs Representative PAGA Claim should be denied because it is untimely
22 and improper.
23 Not only should HNCA's Motion to Strike be denied based on its procedural defects, but it
24 should also be denied because no grounds support it. Plaintiff is expressly authorized by statute to
25 prosecute his PAGA claims. (Lab. Code §§ 2699 et seq.). PAGA grants Plaintiff standing to act as
26
27
' By filing four motions, HNCA has obtained 720 pages of points and authorities. (See CRC
28 3.113(d) (summary adjudication motions limited to 20 pages; reply briefs limited to 10 pages).)
1
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 a private attomey general to prosecute claims, in a representative capacity, to enforce Labor Code
2 violations. (Id.) HNCA know that PlaintifFs PAGA claims are valid. When the Consolidated
3 Complaint was filed more than eighteen months ago, HNCA could find no defect regarding
4 PlaintifFs PAGA claims (and none exists), so HNCA filed an answer. Because Plaintiff correctly
5 asserted his PAGA claims, it would be improper for the Court to dismiss those claims without
6 resolving them on their merits. Moreover, the Califomia Supreme Court, has held that the class
7 action requirements of Code of Civil Procedure section 382 do not apply to PAGA representative
8 actions. Arias v. Superior Court (2009) 46 Cal. 4th 969, and to impose a new "manageability"
9 element into PAGA "would 'obliterate [the] purpose' of representative PAGA actions." Zackaria
10 V. Wal-Mart Stores, Inc. (CD. Cal. 2015) 142 F. Supp. 3d 949, 959 (quoting Plaistedv. Dress
11 Barn, Inc. (CD. Cal. Sept. 20, 2012) No. 2:12-cv-01679-ODW, 2012 WL 4356158, at *2).
12 Accordingly, as PlaintifFs PAGA action wasfiledwell within one-year of his PAGA Notice,
13 PlaintifFs PAGA claim is not time-barred and Defendants' Motion should be denied in its entirety.
14 However, if this Court is inclined to grant HNCA's Motion, then Plaintiff respectfiilly request leave to
15 file a Fu'St Amended Consolidated Complaint that will substitute in other putative class members in his
16 stead. Califomia law recognizes that, in the circumstance where the Plaintiff initially possessed
17 standing, the better course is to permit the discovery process of seeking a suitable replacement class
18 representative to play out, at least over a fair period of time. Best Buy Stores LP. v. Superior Court, 137
19 Cal. App. 4th 772,779 (2006) ("[d]iscovery to ascertain a suitable class representative is proper.")
20 n. PROCEDURAL HISTORY & STATEMENT OF FACTS
21 On May 9,2017, Plaintiff submitted his PAGA Notice to the LWDA and mailed a copy by
22 certified mail to Health Net, Lie. (Declaration of William M. Pao ("Pao Decl."), 13, Ex. 1.) On
23 July 12, 2017, Plaintiff submitted an amended PAGA Notice to the LWDA and mailed a copy by
24 certified mail to Health Net ofCalifomia, Inc. (Pao Decl., ^ 4, Ex. 2.) With respect to the certified
25 off-the-clock computer boot up time claim (and the derivative'wage statement penalties and waiting
26 time penalties clauns), the Notice specifically puts HNCA on notice of the nature of the off-the-
27 clock claims:
28 ///
2
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 Off-the-Clock
2 During the applicable limitations period, Arana and the aggrieved employees had to
work off-the-clock because they were not paid for all hours worked including, but
3 not limited to, the company failing to pay them for time spent waiting to clock in
during the regular course of business.
4
Specifically, Arana and the aggrieved employees were required to boot up their
5 computers at the beginning of each shift, log in with their credentials, wait for the
computer to finish booting up, and eventually start the program that would allow
6 them to check in for the day. This process could take anywhere fromfifteen(15)
minutes to thirty (30) minutes daily - time which was not paid by Health Net.
7
8
Accordingly, time spent working by Arana and the aggrieved employees were not
9 accurately recorded and they were not paid for all actual hours worked.
10 Accordingly, Arana now seeks civil penalties for these Labor Gode violations that
Health Net has committed against him and aggrieved employees...
11
Failure to Provide Accurate Written Wage Statements
12
By failing to accurately record all hours worked, including the "off-the-clock" work
13 descried above, by failing to pay employees meal and rest period premiums in
accordance with Califomia law. Health Net has failed to provide Arana and the
14 aggrieved employees with written wage statements that comply with the
requirements of Labor Gode § 226(a). The wage statements of Arana and the
15 aggrieved employees have not accurately reflected their applicable rates of pay,
hours worked, and the amounts of their net and gross wages.
16
Accordingly, Arana now seeks civil penalties for Health Net's yiolations of Labor
17 Code § 226(a) as follows...
18 Late or Incomplete Final Wages Following Separation of Employment
19 By failing to timely fumish Arana and aggrieved employees with any final paycheck
and/or with final paychecks that include all eamed and impaid wages, including, but
20 not necessarily limited to, all eamed and unpaid hourly, overtime, and/or premium
wages. Health Net has violated Labor Code §§ 201 and 202.
21
Accordingly, Arana now seeks civil penalties for Health Net's yiolations of Labor
22 Code §§ 201,202, and 203 as follows...
23 On May 11, 2017, Plaintiff filed his class and representative action complaint against
24 HNCA.
25 On December 22, 2017, Plaintiffs ANDREA SPEARS and TOMAS R. ARANA filed their
26 Consolidated Complaint for (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest
27 Periods; (3) Failure to Pay Hourly Wages; (4) Failure to Provide Accurate Written Wage
28 Statements; (5) Failure to Timely Pay All Final Wages; (6) Unfair Competition; and (7) Civil
3
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 Penalties.
2 On Febmary 5, 2018, HNCAfiledits Motion for Summary Adjudication as to the Third
3 Cause of Action for Failure to Pay Hourly and Overtime Wages and Seventh Cause of Action for
4 Civil Penalties pursuant to Labor Code section 2698 et seq. On September 27, 2018, the matter was
5 taken under submission. On October 23,2018, the Court issued its tentative mling granting n part
6 and denying in part HNCA's Motion.
7 On November 18, 2018, HNCAfiledits Renewed Motion for Summary Adjudication as to
8 same causes of action that it previously sought summary adjudication. On Febmary 15, 2019, the
9 matter was taken under submission. On Febmary 28, 2019, the Court issued its tentative mling
10 denying the Motion entirely on grounds that it did not completely dispose of the Third and Seventh
11 Causes of Action and that it failed to comply with Code of Civil Procedure section 437c(f)(2) and
12 the jurisdictional requirements of Code ofCivil Procedure section 1008(b).
13 On December 21, 2018, HNCAfiledits Motion As To Why Arana's Case Should Not
14 Proceed As A PAGA Representative Action. On August 30, 2019, this Gourt issued its Order
15 denying the Motion on grounds that it was "not authorized by a statutory procedure that either
16 provides the remedies requested or otherwise authorizes the Court to now dismiss or adjudicate the
17 PAGA claims."
18 On December 21,2018, Plaintifffiledhis Motion for Class Certification. On August 30,
19 2019, this Court issued its tentative order granting in part and denying in part PlaintifFs Motion.
20 During oral arguments, this Court agreed to reconsider the denial of class certification with respect
21 to the wage statement penalties under Labor Code section 226 and waiting time penalties under
22 Labor Code section 203 as they relate to the off-the-clock computer boot time that this Court did
23 certify. The parties submitted additional briefing as to whether derivative claims should be
24 permitted for yiolations of Labor Code section 226. Ultimately, on October 8,2019, this Court
25 granted Plaintiffs motion to certify a class of off-the-clock computer boot up time workers to
26 address the issue regardmg whether the time recording systems in effect during the relevant time
27 period prevented an accurate capture of the start time of class members and granted certification of
28 the derivative claims for wage statement penalties imder Labor Code section 226 and waiting time
4
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 penalties under Labor Code section 203 but only as they relate to the certified claim.
2 On March 6, 2020, HNCAfiledits Motion to Sriike Plaintiff Tomas R. Arana's
3 Representative PAGA Claims that is now before this Court.
4 III. ARGUMENT
5 A. CLASS CERTIFICATION REQUIREMENTS DO NOT APPLY TO PAGA
6 CLAIMS, AND HNCA'S REQUEST TO IMPOSE EXTRA-STATUTORY
7 REQUIREMENTS ON PAGA CLAIMS SHOULD BE DENIED
8 HNCA now frames its twice-rejected challenge as a motion to strike, rather than a demurrer
9 or motion for summary adjudication, but the change in name makes no difference. A motion to
10 strike may be filed to eliminate portions of a complaint that are "urelevant, false, or improper" or
11 "not drawn...in conformity" with law, Gode of Civil Procedure sections 436-437, but it is error to
12 strike "a matter which is essential to a cause of action," Clements v. T. R. Bechtel Co. (1954) 43
13 Cal.2d 227, 242. See also Triodyne, Inc. v. Superior Ct. (1966) 240 Cal.App.2d 536, 542. Here,
14 HNCA does not seek to strike any irrelevant or improper allegations. Instead, it improperly seeks to
15 strip plaintiffs of their statutory right to litigate representative PAGA claims on behalf of the State,
16 as PAGA expressly permits.
17 The Califomia Supreme Court has held that "class action requirements... need not be met" in
18 a PAGA representative action. Arias, 46 Cal. 4TH at 975. Nonetheless, HNCA urges the Court to
19 impose a "manageability" requirement on plaintiffs' PAGA claims that is functionally equivalent to
20 the class-action requirements of predominance and superiority under Code of Civil Procedure
21 section 382. See Zackaria, 142 F.Supp.3d at 959 (manageability "fmds its genesis in Rule 23").
22 PAGA has no such provision, and the legislative goal of increasing effective Labor Code
23 enforcement would be undermined if that requirement were added.
24 The Legislature enacted PAGA because existing mechanisms for Labor Code enforcement
25 were not "significant enough to deter violations." Iskanian v. CLS Transp. Los Angeles, LLC (2014)
26 59 Cal. 4th 348, 379 (quoting legislative history; intemal quotation marks omitted). The Legislature
27 determined that the best means of "achiev[ing] maximum compliance with state labor laws" was to
28 "allow aggrieved employees, acting as private attomeys general, to recover civil penalties for Labor
5
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
I Code violations." Arias, 46 Cal.4''' at 980-81. "The purpose of PAGA is not to recover damages or
2 restitution, but to create a means of 'deputizing' citizens as private attomeys general to enforce the
3 Labor Code." Achal v. Gate Gourmet, Inc. (N.D. Cal. 2015) 114 F.Supp.3d 781, 807.
4 Because plaintiffs in a PAGA action sue as a proxy for the State rather than on behalf of
5 themselves and other aggrieved employees, "a PAGA suit is fundamentally different than a class
6 action." Baumann v. Chase Inv. Servs. Corp. (9tt\ Cir. 2014) 747 F.3d 1117, 1123-24 (intemal
7 quotation marks omitted). PAGA claims are not brought on behalf of the aggrieved employees
8 whose rights have been violated. Rather, "[a] PAGA action is at heart a civil enforcement action
9 filed on behalf of and for the benefit of the state...." Id. at 1124, see also Iskanian, 59 Cal. 4th at 388
10 ("PAGA litigant's status as 'the proxy or agent' ofthe state... reflects a PAGA litigant's substantive
11 role in enforcing our labor laws on behalf of state law enforcement agencies.") (citation
12 omitted); Arias, 46 Cal. 4th at 986 (PAGA plaintiff sues "as the proxy or agent of the state's labor
13 law enforcement agencies"); Sakkab v. Luxottica RetailN. Am., Inc. (9th Cir. 2015) 803 F.3d 425,
14 436 ("unlike Rule 23(a), PAGA contains no requirements of numerosity, commonality, or
15 typicality") (intemal quotation marks omitted). Moreover, individual workers are not the real parties
16 in interest because a PAGA case is "a type of qui tam action" brought on behalf of the
17 State. Sakkab, 803 F.3d at 429; Iskanian, 59 Cal.4* at 382.
18 Given the nature of PAGA actions, it makes little sense to impose a class-action-like
19 requirement of manageability because "[hjolding that individualized liability determinations make
20 representative PAGA actions unmanageable, and therefore untenable, would impose a barrier on
21 such actions that the state law enforcement agency does not face when it litigates those cases itself,"
22 and would '"obliterate [the] purpose' of representative PAGA actions." Zackaria, 142 F.Supp.3d at
23 959 (citing Iskanian, 59 Cal.4''' at 380; quoting Plaisted, 2012 WL 4356158, at*2); accord Echavez
24 V. Abercrombie & Fitch Co. Inc. (CD. Cal. Aug. 13,2013) No. CV 11-9754 GAF PJWX, 2013 WL
25 7162011, at * 11. Moreover, to the extent PAGA claims must be pursued on a representative basis
26 and not just for the individual plaintiffs, see Reyes v. Macy's, Inc. (2011) 202 Cal.App.4''' 1119,
27 1123; Cunningham v. Leslie's Poolmart, Inc. (CD. Cal. June 25, 2013) No. CV 13-2122 CAS
28 CWX, 2013 WL 3233211, at *8; Machado v. M.A.T. & Sons Landscape, Inc. (E.D. Cal. July 23,
6
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 2009) No. 2:09-cv-00459 JAM JFM, 2009 WL 2230788, at *2, to sriike or dismiss a PAGA claim
2 as "unmanageable" would immunize a defendant from any potential PAGA liability. See Zacharia,
3 142 F.Supp.3d at 958-59.
4 Unable to find support for its arguments in PAGA's text or purpose, HNCA relies on the
5 cases addressing representative actions brought under the UCL prior to the passage of Proposition
6 64. Mot. to Strike at 15 (citing Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal. App.
7 3d 699). But PAGA is not an equitable mechanism; it is a rights-conferring statute, and the
8 Legislature has already set forth in that statute what procedural and other requirements apply. See,
9 e.g.. Labor Code §§ 2699(1), 2699.3. Class certification decisions under Code of Civil Procedure
10 section 382 by contrast, are committed to the discretion of the trial court and permit broad-ranging
11 equitable assessments ofthe appropriateness of the case for efficient and fair group
12 adjudication. See Sav-on Drugstores, Inc. v. Superior Ct. (2004) 34 Cal. 4th 319, 336. The riial
13 court has no discretion to strike a properly stated claim for relief under PAGA. See In re Marriage
14 ofWoolsey (2013) 220 Cal. App. 4th 881, 899 ("An order attempting to add requirements to those
15 prescribed by a statute is to such an extent a nullity and avoid.") (intemal quotation marks omitted).
16 HNCA's attempt to analogize PAGA actions to pre-Proposition 64 Unfair Competition Law
17 ("UCL") actions simply fails because the Califomia Supreme Court has never held that PAGA
18 cases are "similar" to pre-Proposition 64 UCL cases as HNCA suggests. See Mot. to Strike at 15-16.
19 Nor has it ever stated that PAGA claims and UCL claims are govemed by the same standards. See
20 Arias, 46 Cal. 4th at 982-83; Alcantar v. Hobart Serv. (CD. Cal. Jan. 14,2013) No. ED CV 11-
21 1600 PSG, 2013 WL 146323, at *4 (UCL cases "are inapplicable" to PAGA claims); Plaisted, 2012
22 WL 4356158, at *2 (distinguishing UCL and PAGA cases). Unlike an action under PAGA—^which
23 seeksfixedstatutory penalties on behalf of the State - "a UCL action is one in equity." Kraus v.
24 Trinity Mgmt. Servs., Inc. (2000) 23 Cal.4* 116,138; see Alcantar, 2013 WL 146323, at *4. Before
25 Proposition 64, courts weighed equitable considerations in deciding whether to permit UCL cases to
26 proceed because UCL cases were equitable actions. See Kraus, 23 Cal. 4th at 138. Even then, the
27 only UCL cases to address manageability did so solely in the context of the permissible scope of
28 restiUitionary relief See, e.g., Wilner v. Sunset Life Ins. Co. (2000) 78 Cal. App. 4th 952, 969 (dicta
7
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 noting that individualized inquiries regarding restitution may provide a basis for striking UCL class
2 allegations); Marshall v. Standard Ins. Co. (CD. Cal. 2000) 214 F.Supp.2d 1062, \010-1\; Barnett
3 V. Washington Mutual Bank (N.D. Cal. Sept. 9, 2004) No. G 03-00753 GRB, 2004 WL 2011462, at
4 •"3. Restitution is not an available remedy under PAGA, and the State and aggrieved workers may
5 only recover fixed statutory penalties. See also Alcantar, 2013 WL 146323, at *4-5.
6 The better-reasoned cases recognize that importing a class-action manageability requirement
7 into PAGA would undermine its statutory purposes. See Zackaria, 142 F.Supp.3d at 959; Plaisted,
8 2012 WL 4356158, at *l-*2; Echavez, 2013 WL 7162011, at *10; Henderson v. JPMorgan Chase
9 Bank (CD Cal. July 10, 2013) 2013 U.S. Dist. Lexis 185101, at * 19; 5ee alsoMoua v. Int'l Bus.
10 Machines Corp. (N.D. Cal. Jan. 31, 2012) No. 5:10-CV-01070 EJD, 2012 WL 370570, at *3.
11 B. HNCA READILY CONCEDES THAT PLAINTIFF'S EXPRESSLY
12 REFRENCED OFF-THE-CLOCK WORK IN HIS LWDA NOTICE
13 HNCA cannot deny that Plaintiffs PAGA Notice expressly states:
14 Off-the-Clock
15 During the applicable limitations period, Arana and the aggrieved employees had to
work off-the-clock because they were not paid for all hours worked including, but
16 not limited to, the company failing to pay them for time spent waiting to clock in
during the regular course of business.
17
Specifically, Arana and the aggrieved employees were required to boot up their
18 computers at the beginning of each shift, log in with their credentials, wait for the
computer to finish booting up, and eventually start the program that would allow
19 them to check in for the day. This process could take anywhere fromfifteen(15)
minutes to thirty (30) minutes daily - time which was not paid by Health Net.
20
21
Accordingly, time spent working by Arana and the aggrieved employees were not
22 accurately recorded and they were not paid for all actual hours worked.
23 Accordingly, Arana now seeks civil penalties for these Labor Code violations that
Health Net has committed against him and aggrieved employees...
24
25 Although HNCA concedes that Arana "made some mention of employees working off the clock
26 in his LWDA Notice," it takes issue that "he failed to provide notice of the EMPCenter PAGA Claim
27 that Plaintiffs have put forward intiieTrial Plan." (Mot. to Strike, at 12:26-28.) (emphasis added.)
28 Based on this failure to specifically name the tunekeeping system, HNCA argues that the claim was not
8
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNLA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 exhausted and must be stricken. This is at odds with Califomia public policy that favors vmdication of
2 consumer protections. (Williams v. Superior Court (2017) 3 Cal. 5th 531, 548.) Regardless, PAGA
3 exhaustion requirement does not necessitate "inclusion of every potential fact or every future theory."
4 (See Cardenas v. McLane FoodServices, Inc., 196 F. Supp. 2d 1246,1260 (CD. Cal. 2011) "A conti-ary
5 conclusion would be inconsistent with Califomia public policy..." (Mays v. Wal-Mart Stores, Inc., 354
6 F. Supp. 3d 1136,2019 WL 365898, *8 (CD. Gal. Jan. 29,2019).)^
7 PAGA's requirements are satisfied ifa notice includes: "(1) the specific statute [defendant]
8 allegedly violated, (2) facts about what position plaintiffs held, and (3) a specific identification of who
9 was allegedly harmed." Green v. Bank of America, N.A. (9th Cir. Oct. 13,2015) 634 Fed. App'x 188, at
10 191 & n.l; see also Cardenas 796 F.Supp.2d at 1259-60; Moua, 2012 WL 370570, at *5. Plaintiffs
11 May 9, 2017 PAGA Notice listed Labor Code sections 204,223, 510,1194,1197 and 1198 as die
12 specific statutes violated, (Pao Decl., , Ex. .); stated that "Arana and aggrieved employees were
13 required to boot up their computers at the beginning of each shift, log in with their credentials, wait for
14 the computer to finish booting up, and eventually start the program that would allow them to clock in for
15 the day," (Id.); and stated that HNCA failed to pay for "time spent working by Arana and the aggrieved
16 employees [that] were not accurately recorded and they were not paid for all actual hours worked," (Id.).
17 These facts satisfy the notice requirement. See Green, 634 Fed.App'x at 191.
18 Accordingly, Plaintiffs failure to specifically name the timekeeping system during the relevant
19 time period should not shield HNCA from liability for this PAGA claim especially when the PAGA
20 Notice itself puts HNCA on notice that itstimekeepingsystem during the relevant time period is at
21 issue, regardless of the name given to it.
22 ///
23 ///
24 ///
25
26
27 ^ "Califomia public policy favors the effective vindication of consumer protections."
(Williams, 3 Cal. 5th at 548.) "Hurdles that impede the effective prosecution of representative
28 PAGA actions undermine the Legislature's objectives." (Id.)
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 C. PLAINTIFF FILED HIS PAGA COMPLAINT WELL WIFHIN THE ONE-
2 YEAR STATUTE OF LIMITATIONS AND THEREFORE PLAINTIFF'S
3 CLAIM IS NOT TIME BARRED
4 This Court has already rejected HNCA's argument for striking plaintiffs' PAGA claims, and
5 there is no reason to revisit that mling. HNCA seeks to strike only a portion of plaintiffs' PAGA
6 claims as il relates to the Third Cause of Action, those based on HNCA's failure to properly capture
7 all hours worked by its employees when booting up their computers at the start of their shift before
8 they could clock in. Mot. to Strike at 14-15.
9 The Court should stand by hs earlier mling, not only because HNCA has failed to comply
10 with the requirements for obtaining reconsideration under Code of Civil Procedure section 1008,
11 but because the Court's ruling was clearly correct. PAGA's requirements are satisfied i f a notice
12 includes: "(1) the specific statute [defendant] allegedly violated, (2) facts about what position
13 plaintiffs held, and (3) a specific identification of who was allegedly harmed." Green v. Bank of
14 America, N.A. (9th Cir. Oct. 13, 2015) 634 Fed.App'x 188, at 191 & n.l; see also Cardenas 796
15 F.Supp.2d at 1259-60; Moua, 2012 WL 370570, at *5.
16 Finally, this Court denied HNCA's motions for summary adjudication of plaintiffs' Third
17 and Seventh Causes of Action (for failure to pay all hourly and overtime wages and PAGA
18 penalties) precisely because those motions failed to challenge the portion of plaintiffs' complaint
19 alleging a failure to pay all hourly and overtime wages, and derivative claims for wage statement
20 penalties and waitingtimepenalties. October 23,2018, S.A. Order. The Court could not have
21 denied HNCA motions on this basis and could not have permitted the individual plaintiffs to
22 proceed to trial on that theory unless the Court concluded that plaintiffs had properly pleaded that
23 particular claim. HNCA cannot now be heard to complain that plaintiffs did not properly plead
24 claims of which it was obviously aware when it sought judgment on those claims.
25 Accordingly, as Plaintiffs PAGA action wasfiledwell within one-year of his PAGA Notice,
26 Plaintiffs PAGA claim is not time-barred and Defendants' Motion should be denied in its entirety.
27 However, if this Gourt is inclined to grant HNCA's Motion, then Plaintiff respectfully request leave to
28 file a First Amended Consolidated Complaint that will substitute m other putative class members in his
10
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 stead. Califomia law recognizes that, in the circumstance where the Plaintiff initially possessed
2 standing, the better course is to permit the discovery process of seeking a suitable replacement class
3 representative to play out, at least over a fair period of time. Best Buy Stores L.P. v. Superior Coio't, 137
4 Cal. App. 4th 772,779 (2006) ("[d]iscovery to ascertain a suitable class representative is proper."
5 1. Leave to A mend Is Granted with Extreme Liberality
6 The policy favoring amendment is so strong that denial of leave to amend is almost never
7 justified: "If the motion to amend is timely made and the granting of the motion will not prejudice the
8 opposing party, it is error to refiise permission to amend and where the refusal also results in a party
9 being deprived of therightto assert a meritorious cause of action or a meritorious defense, it is not only
10 error but an abuse of discretion." Morgan v. Superior Court, 172 Cal. App. 2d 527, 530 (1959); see
11 Mabie v. Hyatt, 61 Cal. App. 4th 581, 596 (1998); Bettencourt v. Hennessy Indus., Inc. 205 Cal. App.
12 4th 1103,1111 (2012) (abuse of discretion to deny leave to amend when there is a "reasonable
13 possibility" that defect can be cured).
14 In addition to the strong policy favoring amendments, the ability of a court to even impose
15 conditions upon an amendment is heavily circumscribed. That discretion to impose conditions on leave
16 to amend the complaint "extends only to those conditions which are just, i.e., intended to compensate
17 the defendants for any inconvenience belated amendment may cause." Armenta ex rel. City of Burbank
18 V. Mueller Co., 142 Cal. App. 4th 636,642 (2006) (error to condition amendment upon plaintiff
19 responding to extraordinarily detailed discovery demand); Sanai v. Saltz, 170 Cal. App. 4th 746,769-
20 770 (2009) (error to condition leave to amend on plaintiff "produc[ing] admissible evidence"
21 substantiating amended complaint).
22 2. This Court Will Fulfdl Its Role as a Fiduciary to Absent Putative Class
23 Members by Permitting the Proposed Amendment
24 Federal and Califomia Courts agree that any Court overseeing a putative class action assumes a
25 quasi-fiduciary role to protect the interests of absent class members. It has beenfiequentiyobserved
26 that a federal court has a fiduciary duty to look after the interests of absent class members. Allen v.
27 Bedolla, 787 F.3d 1218,1223 (9tii Cir. 2015), citing e.g Sullivan v. DB Invs., Inc., 667 F.3d 273,319
28 (3d Cu-. 2011). Similarly, Califomia Courts must act asfiduciarieswhen therightsof absent class
11
PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNLA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 members are at stake. Kulldr v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116,129 (2008). This
2 function is central to^the role of the'trial court when managing a class action:."The court has a fiduciary
3 responsibility as guardians of therightsof the absentee claiss members when deciding whether to
4 approve a settlement agreement." 4 Newberg on Class Actions, (4th ed. 2002), § 11.41 at p. 118; 7-
5 Eleven Owners for Fair Franchising v. Southland Corp., 85 Gal. App. 4th 1135,1151 (2000).
6 Nationwide, Courts agree thatthe trial.court stands ias a guardian over the absentee class meiribers: ."The
7 courts are suf^osed to be the guardiians of the claiss." Dickersori, Class Actions: The Law of 50 States
8 (2008ed.)§9.02[2],p.9-^.
9 IV. CONCLUSION
10 For all the foregoing reasons; and because HNCA hasfile'multiplesummaiy adjudication ,
U motions and because itis error striking '-a matter which is esseritial to a catise bf action," G/e/ne«/j,:43
12 Cal.2d at 242; see also Triodyne, Ihc, 240 Cal.App.2d at 542, Plairitiff requests thattiiiisCourt deny
13 HNCA's motibn m its entirety.
14
15 DATED: April 16,2020 SETAREH LAW GROUP
16
17
SHAUN SETAREH
18: WILLIAM'M; PAO
19 Attorneys for Plaintiff
TOMAS R. ARANA
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PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE
TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS
1 PROOF OF SERVICE
2
I am a citizen of the United States and am employed in the Gounty of Los Angeles, State
3 of Califomia. I am over the age of 18 and not a party to the within action. My business address
is 315 South Beverly Drive, Suite 315 Beverly Hills, GA 90212.
4
5 On April 17,2020,1 served the foregoing documents described as:
6 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA,
INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA
7 CLAIMS
8 in this action by transmitting a tme copy thereof enclosed in a sealed envelope addressed as
follows:
9
Norman Blumenthal
10 Timothy J. Long Victoria B. Rivapalacio
Greenberg Traurig, LLP AJ Bhowmik
11 1201 K. Sri-eet, Suite 1100 Blumenthal, Nordrehaug, & Bhowmik
Sacramento, CA 95814 2255 Calle Clara
12
Email: longt@gtlaw.com La Jolla, CA 92037
13 COUNSEL FOR DEFENDANT HEALTH Email: victoria@bamlawca.com
NET, INC. Email: norm@bamlawca.com
14 Email: AJ@bamlawca.com
Rowena Santos COUNSEL FOR PLAINTIFF ANDREA
15
GREENBERG TRAURIG, LLP SPEARS.
16 18565 Jamboree Road, Suite 500
Irvine, CA 92612
17 Email: santosro@,gtiaw.com
COUNSEL FOR DEFENDANT HEALTH
18
NET, INC.
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\X] BY MAIL
20
I am readily familiar with the practice of Setareh Law Group for the collection and
21 processing of correspondence for mailing with the United States Postal Service. It is the
22 practice that correspondence is deposited with United States Postal Service the same day it is
submitted for mailing with postage thereon fully prepaid at Beverly Hills, Califomia. I am
23 aware that on motion of the party served, service is presumed invalid if postal cancellation date
or postage meter date is more than one day after date of deposit for mailing in affidavit.
24
25 [X] STATE
26 I declare under penalty of perjury under the laws of the State of Califomia that the above
is tme and correct.
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PROOF OF SERVICE
Executed on April 17, 2020, at Beverly Hills; California.
^auren Farrington
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PROOF OF SERVICE
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Preview
1 Shaun Setareh (SBN 204514) shaun@setarehlaw.com 2 William M. Pao (SBN 219846) william@setarehlaw.com 3 Jose Maria D. Patino, Jr. (SBN 270194) jose@setarehlaw.com ILEO/Ef^DOBSEO 4 SETAREH LAW GROUP 315 South Beverly Drive, Suite 315 5 Beveriy Hills, Califomia 90212 MAY - 7 2020 Telephone (310) 888-7771 6 Facsimile (310)888-0109 By:. H. PEMELTON Deputy Clerk 7 Attomeys for Plaintiff TOMAS R. ARANA 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNL\ 10 FOR THE COUNTY OF SACRAMENTO II COMPLEX GIVIL LITIGATION 12 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 14 similarly situated. Assigned For All Purposes to the Honorable 15 Plaintiff, David de Alba, Department 41 16 PLAINTIFF'S OPPOSITION TO HEALTH NET OF GALIFORNL\, INC., a DEFENDANT HEALTH NET OF 17 Califomia Corporation; and Does 1 through CALIFORNIA, INC.'S MOTION TO 50, inclusive. STRIKE TOMAS R. ARANA'S 18 REPRESENATIVE PAGA CLAIMS Defendants. 19 Date: April 3, 2020 Time: 1:30 p.m. 20 TOMAS R. ARANA, on behalf of himself, all Courtroom: Department 41 others similarly situated. BY FAX 21 Original Complaint Filed: April 5,2017 Plaintiff, FAC Filed: June 29,2017 22 Consolidated Complaint Filed: Dec. 21,2017 23 HEALTH NET OF CALIFORNIA, INC., a 24 Califomia corporation; and DOES 1-50, inclusive, 25 Defendants. 26 27 28 PLAINTIFF'S OPPOSmON TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 I. INTRODUCTION 2 As an initial matter, the Court should deny Defendant HEALTH NET OF CALIFORNIA, 3 INC.'S ("HNCA") motion as procedurally improper and abusive. To date, HNCA has filed 4 4 summary adjudication motions (an initial motion - which was granted in part and denied in part - 5 and a renewed motion which was wholly denied, both of which sought, to dispose of PlaintifFs 6 PAGA claims, among other Is) against Plaintiff Spears and Arana. In doing so, HNCA violates 7 page limit requirements' and attempts to overwhelm PlaintifFs counsel by filing yet another 8 dispositive motion, this time aimed solely at PlaintifFs PAGA claims. 9 HNCA seeks to avoid any PAGA liability for these wage and hour violations based, 10 primarily, on procedural pounds - arguing that Plaintiffs 2017 Notice of his PAGA claim was 11 deficient. This argument is utterly without merit and provides no basis for immunizing HNCA's 12 wrongful conduct. HNCA argument that the PAGA notice is deficient myopically focuses on the 13 name of the timekeeping system in place beginning January 1, 2017 rather than what it does allege, 14 specifically that HNCA's timekeeping system failed to capture all the time worked by its 15 employees. 16 As asserted in the Consolidated Complaint filed on December 22, 2017, Plaintiff exhausted 17 his administrative prerequisites under PAGA and has a statutory right to proceed with his PAGA 18 clauns as a private attomey general. However, despite the fact that HNCA was aware of PlaintifFs 19 PAGA allegations for more than eighteen months and already answered the Consolidated 20 Complaint, HNCA now improperly asks this Court to strike PlaintifFs PAGA claims. HNCA's 21 Motion to Strike PlaintifPs Representative PAGA Claim should be denied because it is untimely 22 and improper. 23 Not only should HNCA's Motion to Strike be denied based on its procedural defects, but it 24 should also be denied because no grounds support it. Plaintiff is expressly authorized by statute to 25 prosecute his PAGA claims. (Lab. Code §§ 2699 et seq.). PAGA grants Plaintiff standing to act as 26 27 ' By filing four motions, HNCA has obtained 720 pages of points and authorities. (See CRC 28 3.113(d) (summary adjudication motions limited to 20 pages; reply briefs limited to 10 pages).) 1 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 a private attomey general to prosecute claims, in a representative capacity, to enforce Labor Code 2 violations. (Id.) HNCA know that PlaintifFs PAGA claims are valid. When the Consolidated 3 Complaint was filed more than eighteen months ago, HNCA could find no defect regarding 4 PlaintifFs PAGA claims (and none exists), so HNCA filed an answer. Because Plaintiff correctly 5 asserted his PAGA claims, it would be improper for the Court to dismiss those claims without 6 resolving them on their merits. Moreover, the Califomia Supreme Court, has held that the class 7 action requirements of Code of Civil Procedure section 382 do not apply to PAGA representative 8 actions. Arias v. Superior Court (2009) 46 Cal. 4th 969, and to impose a new "manageability" 9 element into PAGA "would 'obliterate [the] purpose' of representative PAGA actions." Zackaria 10 V. Wal-Mart Stores, Inc. (CD. Cal. 2015) 142 F. Supp. 3d 949, 959 (quoting Plaistedv. Dress 11 Barn, Inc. (CD. Cal. Sept. 20, 2012) No. 2:12-cv-01679-ODW, 2012 WL 4356158, at *2). 12 Accordingly, as PlaintifFs PAGA action wasfiledwell within one-year of his PAGA Notice, 13 PlaintifFs PAGA claim is not time-barred and Defendants' Motion should be denied in its entirety. 14 However, if this Court is inclined to grant HNCA's Motion, then Plaintiff respectfiilly request leave to 15 file a Fu'St Amended Consolidated Complaint that will substitute in other putative class members in his 16 stead. Califomia law recognizes that, in the circumstance where the Plaintiff initially possessed 17 standing, the better course is to permit the discovery process of seeking a suitable replacement class 18 representative to play out, at least over a fair period of time. Best Buy Stores LP. v. Superior Court, 137 19 Cal. App. 4th 772,779 (2006) ("[d]iscovery to ascertain a suitable class representative is proper.") 20 n. PROCEDURAL HISTORY & STATEMENT OF FACTS 21 On May 9,2017, Plaintiff submitted his PAGA Notice to the LWDA and mailed a copy by 22 certified mail to Health Net, Lie. (Declaration of William M. Pao ("Pao Decl."), 13, Ex. 1.) On 23 July 12, 2017, Plaintiff submitted an amended PAGA Notice to the LWDA and mailed a copy by 24 certified mail to Health Net ofCalifomia, Inc. (Pao Decl., ^ 4, Ex. 2.) With respect to the certified 25 off-the-clock computer boot up time claim (and the derivative'wage statement penalties and waiting 26 time penalties clauns), the Notice specifically puts HNCA on notice of the nature of the off-the- 27 clock claims: 28 /// 2 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 Off-the-Clock 2 During the applicable limitations period, Arana and the aggrieved employees had to work off-the-clock because they were not paid for all hours worked including, but 3 not limited to, the company failing to pay them for time spent waiting to clock in during the regular course of business. 4 Specifically, Arana and the aggrieved employees were required to boot up their 5 computers at the beginning of each shift, log in with their credentials, wait for the computer to finish booting up, and eventually start the program that would allow 6 them to check in for the day. This process could take anywhere fromfifteen(15) minutes to thirty (30) minutes daily - time which was not paid by Health Net. 7 8 Accordingly, time spent working by Arana and the aggrieved employees were not 9 accurately recorded and they were not paid for all actual hours worked. 10 Accordingly, Arana now seeks civil penalties for these Labor Gode violations that Health Net has committed against him and aggrieved employees... 11 Failure to Provide Accurate Written Wage Statements 12 By failing to accurately record all hours worked, including the "off-the-clock" work 13 descried above, by failing to pay employees meal and rest period premiums in accordance with Califomia law. Health Net has failed to provide Arana and the 14 aggrieved employees with written wage statements that comply with the requirements of Labor Gode § 226(a). The wage statements of Arana and the 15 aggrieved employees have not accurately reflected their applicable rates of pay, hours worked, and the amounts of their net and gross wages. 16 Accordingly, Arana now seeks civil penalties for Health Net's yiolations of Labor 17 Code § 226(a) as follows... 18 Late or Incomplete Final Wages Following Separation of Employment 19 By failing to timely fumish Arana and aggrieved employees with any final paycheck and/or with final paychecks that include all eamed and impaid wages, including, but 20 not necessarily limited to, all eamed and unpaid hourly, overtime, and/or premium wages. Health Net has violated Labor Code §§ 201 and 202. 21 Accordingly, Arana now seeks civil penalties for Health Net's yiolations of Labor 22 Code §§ 201,202, and 203 as follows... 23 On May 11, 2017, Plaintiff filed his class and representative action complaint against 24 HNCA. 25 On December 22, 2017, Plaintiffs ANDREA SPEARS and TOMAS R. ARANA filed their 26 Consolidated Complaint for (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest 27 Periods; (3) Failure to Pay Hourly Wages; (4) Failure to Provide Accurate Written Wage 28 Statements; (5) Failure to Timely Pay All Final Wages; (6) Unfair Competition; and (7) Civil 3 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 Penalties. 2 On Febmary 5, 2018, HNCAfiledits Motion for Summary Adjudication as to the Third 3 Cause of Action for Failure to Pay Hourly and Overtime Wages and Seventh Cause of Action for 4 Civil Penalties pursuant to Labor Code section 2698 et seq. On September 27, 2018, the matter was 5 taken under submission. On October 23,2018, the Court issued its tentative mling granting n part 6 and denying in part HNCA's Motion. 7 On November 18, 2018, HNCAfiledits Renewed Motion for Summary Adjudication as to 8 same causes of action that it previously sought summary adjudication. On Febmary 15, 2019, the 9 matter was taken under submission. On Febmary 28, 2019, the Court issued its tentative mling 10 denying the Motion entirely on grounds that it did not completely dispose of the Third and Seventh 11 Causes of Action and that it failed to comply with Code of Civil Procedure section 437c(f)(2) and 12 the jurisdictional requirements of Code ofCivil Procedure section 1008(b). 13 On December 21, 2018, HNCAfiledits Motion As To Why Arana's Case Should Not 14 Proceed As A PAGA Representative Action. On August 30, 2019, this Gourt issued its Order 15 denying the Motion on grounds that it was "not authorized by a statutory procedure that either 16 provides the remedies requested or otherwise authorizes the Court to now dismiss or adjudicate the 17 PAGA claims." 18 On December 21,2018, Plaintifffiledhis Motion for Class Certification. On August 30, 19 2019, this Court issued its tentative order granting in part and denying in part PlaintifFs Motion. 20 During oral arguments, this Court agreed to reconsider the denial of class certification with respect 21 to the wage statement penalties under Labor Code section 226 and waiting time penalties under 22 Labor Code section 203 as they relate to the off-the-clock computer boot time that this Court did 23 certify. The parties submitted additional briefing as to whether derivative claims should be 24 permitted for yiolations of Labor Code section 226. Ultimately, on October 8,2019, this Court 25 granted Plaintiffs motion to certify a class of off-the-clock computer boot up time workers to 26 address the issue regardmg whether the time recording systems in effect during the relevant time 27 period prevented an accurate capture of the start time of class members and granted certification of 28 the derivative claims for wage statement penalties imder Labor Code section 226 and waiting time 4 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 penalties under Labor Code section 203 but only as they relate to the certified claim. 2 On March 6, 2020, HNCAfiledits Motion to Sriike Plaintiff Tomas R. Arana's 3 Representative PAGA Claims that is now before this Court. 4 III. ARGUMENT 5 A. CLASS CERTIFICATION REQUIREMENTS DO NOT APPLY TO PAGA 6 CLAIMS, AND HNCA'S REQUEST TO IMPOSE EXTRA-STATUTORY 7 REQUIREMENTS ON PAGA CLAIMS SHOULD BE DENIED 8 HNCA now frames its twice-rejected challenge as a motion to strike, rather than a demurrer 9 or motion for summary adjudication, but the change in name makes no difference. A motion to 10 strike may be filed to eliminate portions of a complaint that are "urelevant, false, or improper" or 11 "not drawn...in conformity" with law, Gode of Civil Procedure sections 436-437, but it is error to 12 strike "a matter which is essential to a cause of action," Clements v. T. R. Bechtel Co. (1954) 43 13 Cal.2d 227, 242. See also Triodyne, Inc. v. Superior Ct. (1966) 240 Cal.App.2d 536, 542. Here, 14 HNCA does not seek to strike any irrelevant or improper allegations. Instead, it improperly seeks to 15 strip plaintiffs of their statutory right to litigate representative PAGA claims on behalf of the State, 16 as PAGA expressly permits. 17 The Califomia Supreme Court has held that "class action requirements... need not be met" in 18 a PAGA representative action. Arias, 46 Cal. 4TH at 975. Nonetheless, HNCA urges the Court to 19 impose a "manageability" requirement on plaintiffs' PAGA claims that is functionally equivalent to 20 the class-action requirements of predominance and superiority under Code of Civil Procedure 21 section 382. See Zackaria, 142 F.Supp.3d at 959 (manageability "fmds its genesis in Rule 23"). 22 PAGA has no such provision, and the legislative goal of increasing effective Labor Code 23 enforcement would be undermined if that requirement were added. 24 The Legislature enacted PAGA because existing mechanisms for Labor Code enforcement 25 were not "significant enough to deter violations." Iskanian v. CLS Transp. Los Angeles, LLC (2014) 26 59 Cal. 4th 348, 379 (quoting legislative history; intemal quotation marks omitted). The Legislature 27 determined that the best means of "achiev[ing] maximum compliance with state labor laws" was to 28 "allow aggrieved employees, acting as private attomeys general, to recover civil penalties for Labor 5 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS I Code violations." Arias, 46 Cal.4''' at 980-81. "The purpose of PAGA is not to recover damages or 2 restitution, but to create a means of 'deputizing' citizens as private attomeys general to enforce the 3 Labor Code." Achal v. Gate Gourmet, Inc. (N.D. Cal. 2015) 114 F.Supp.3d 781, 807. 4 Because plaintiffs in a PAGA action sue as a proxy for the State rather than on behalf of 5 themselves and other aggrieved employees, "a PAGA suit is fundamentally different than a class 6 action." Baumann v. Chase Inv. Servs. Corp. (9tt\ Cir. 2014) 747 F.3d 1117, 1123-24 (intemal 7 quotation marks omitted). PAGA claims are not brought on behalf of the aggrieved employees 8 whose rights have been violated. Rather, "[a] PAGA action is at heart a civil enforcement action 9 filed on behalf of and for the benefit of the state...." Id. at 1124, see also Iskanian, 59 Cal. 4th at 388 10 ("PAGA litigant's status as 'the proxy or agent' ofthe state... reflects a PAGA litigant's substantive 11 role in enforcing our labor laws on behalf of state law enforcement agencies.") (citation 12 omitted); Arias, 46 Cal. 4th at 986 (PAGA plaintiff sues "as the proxy or agent of the state's labor 13 law enforcement agencies"); Sakkab v. Luxottica RetailN. Am., Inc. (9th Cir. 2015) 803 F.3d 425, 14 436 ("unlike Rule 23(a), PAGA contains no requirements of numerosity, commonality, or 15 typicality") (intemal quotation marks omitted). Moreover, individual workers are not the real parties 16 in interest because a PAGA case is "a type of qui tam action" brought on behalf of the 17 State. Sakkab, 803 F.3d at 429; Iskanian, 59 Cal.4* at 382. 18 Given the nature of PAGA actions, it makes little sense to impose a class-action-like 19 requirement of manageability because "[hjolding that individualized liability determinations make 20 representative PAGA actions unmanageable, and therefore untenable, would impose a barrier on 21 such actions that the state law enforcement agency does not face when it litigates those cases itself," 22 and would '"obliterate [the] purpose' of representative PAGA actions." Zackaria, 142 F.Supp.3d at 23 959 (citing Iskanian, 59 Cal.4''' at 380; quoting Plaisted, 2012 WL 4356158, at*2); accord Echavez 24 V. Abercrombie & Fitch Co. Inc. (CD. Cal. Aug. 13,2013) No. CV 11-9754 GAF PJWX, 2013 WL 25 7162011, at * 11. Moreover, to the extent PAGA claims must be pursued on a representative basis 26 and not just for the individual plaintiffs, see Reyes v. Macy's, Inc. (2011) 202 Cal.App.4''' 1119, 27 1123; Cunningham v. Leslie's Poolmart, Inc. (CD. Cal. June 25, 2013) No. CV 13-2122 CAS 28 CWX, 2013 WL 3233211, at *8; Machado v. M.A.T. & Sons Landscape, Inc. (E.D. Cal. July 23, 6 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 2009) No. 2:09-cv-00459 JAM JFM, 2009 WL 2230788, at *2, to sriike or dismiss a PAGA claim 2 as "unmanageable" would immunize a defendant from any potential PAGA liability. See Zacharia, 3 142 F.Supp.3d at 958-59. 4 Unable to find support for its arguments in PAGA's text or purpose, HNCA relies on the 5 cases addressing representative actions brought under the UCL prior to the passage of Proposition 6 64. Mot. to Strike at 15 (citing Bronco Wine Co. v. Frank A. Logoluso Farms (1989) 214 Cal. App. 7 3d 699). But PAGA is not an equitable mechanism; it is a rights-conferring statute, and the 8 Legislature has already set forth in that statute what procedural and other requirements apply. See, 9 e.g.. Labor Code §§ 2699(1), 2699.3. Class certification decisions under Code of Civil Procedure 10 section 382 by contrast, are committed to the discretion of the trial court and permit broad-ranging 11 equitable assessments ofthe appropriateness of the case for efficient and fair group 12 adjudication. See Sav-on Drugstores, Inc. v. Superior Ct. (2004) 34 Cal. 4th 319, 336. The riial 13 court has no discretion to strike a properly stated claim for relief under PAGA. See In re Marriage 14 ofWoolsey (2013) 220 Cal. App. 4th 881, 899 ("An order attempting to add requirements to those 15 prescribed by a statute is to such an extent a nullity and avoid.") (intemal quotation marks omitted). 16 HNCA's attempt to analogize PAGA actions to pre-Proposition 64 Unfair Competition Law 17 ("UCL") actions simply fails because the Califomia Supreme Court has never held that PAGA 18 cases are "similar" to pre-Proposition 64 UCL cases as HNCA suggests. See Mot. to Strike at 15-16. 19 Nor has it ever stated that PAGA claims and UCL claims are govemed by the same standards. See 20 Arias, 46 Cal. 4th at 982-83; Alcantar v. Hobart Serv. (CD. Cal. Jan. 14,2013) No. ED CV 11- 21 1600 PSG, 2013 WL 146323, at *4 (UCL cases "are inapplicable" to PAGA claims); Plaisted, 2012 22 WL 4356158, at *2 (distinguishing UCL and PAGA cases). Unlike an action under PAGA—^which 23 seeksfixedstatutory penalties on behalf of the State - "a UCL action is one in equity." Kraus v. 24 Trinity Mgmt. Servs., Inc. (2000) 23 Cal.4* 116,138; see Alcantar, 2013 WL 146323, at *4. Before 25 Proposition 64, courts weighed equitable considerations in deciding whether to permit UCL cases to 26 proceed because UCL cases were equitable actions. See Kraus, 23 Cal. 4th at 138. Even then, the 27 only UCL cases to address manageability did so solely in the context of the permissible scope of 28 restiUitionary relief See, e.g., Wilner v. Sunset Life Ins. Co. (2000) 78 Cal. App. 4th 952, 969 (dicta 7 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 noting that individualized inquiries regarding restitution may provide a basis for striking UCL class 2 allegations); Marshall v. Standard Ins. Co. (CD. Cal. 2000) 214 F.Supp.2d 1062, \010-1\; Barnett 3 V. Washington Mutual Bank (N.D. Cal. Sept. 9, 2004) No. G 03-00753 GRB, 2004 WL 2011462, at 4 •"3. Restitution is not an available remedy under PAGA, and the State and aggrieved workers may 5 only recover fixed statutory penalties. See also Alcantar, 2013 WL 146323, at *4-5. 6 The better-reasoned cases recognize that importing a class-action manageability requirement 7 into PAGA would undermine its statutory purposes. See Zackaria, 142 F.Supp.3d at 959; Plaisted, 8 2012 WL 4356158, at *l-*2; Echavez, 2013 WL 7162011, at *10; Henderson v. JPMorgan Chase 9 Bank (CD Cal. July 10, 2013) 2013 U.S. Dist. Lexis 185101, at * 19; 5ee alsoMoua v. Int'l Bus. 10 Machines Corp. (N.D. Cal. Jan. 31, 2012) No. 5:10-CV-01070 EJD, 2012 WL 370570, at *3. 11 B. HNCA READILY CONCEDES THAT PLAINTIFF'S EXPRESSLY 12 REFRENCED OFF-THE-CLOCK WORK IN HIS LWDA NOTICE 13 HNCA cannot deny that Plaintiffs PAGA Notice expressly states: 14 Off-the-Clock 15 During the applicable limitations period, Arana and the aggrieved employees had to work off-the-clock because they were not paid for all hours worked including, but 16 not limited to, the company failing to pay them for time spent waiting to clock in during the regular course of business. 17 Specifically, Arana and the aggrieved employees were required to boot up their 18 computers at the beginning of each shift, log in with their credentials, wait for the computer to finish booting up, and eventually start the program that would allow 19 them to check in for the day. This process could take anywhere fromfifteen(15) minutes to thirty (30) minutes daily - time which was not paid by Health Net. 20 21 Accordingly, time spent working by Arana and the aggrieved employees were not 22 accurately recorded and they were not paid for all actual hours worked. 23 Accordingly, Arana now seeks civil penalties for these Labor Code violations that Health Net has committed against him and aggrieved employees... 24 25 Although HNCA concedes that Arana "made some mention of employees working off the clock 26 in his LWDA Notice," it takes issue that "he failed to provide notice of the EMPCenter PAGA Claim 27 that Plaintiffs have put forward intiieTrial Plan." (Mot. to Strike, at 12:26-28.) (emphasis added.) 28 Based on this failure to specifically name the tunekeeping system, HNCA argues that the claim was not 8 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNLA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 exhausted and must be stricken. This is at odds with Califomia public policy that favors vmdication of 2 consumer protections. (Williams v. Superior Court (2017) 3 Cal. 5th 531, 548.) Regardless, PAGA 3 exhaustion requirement does not necessitate "inclusion of every potential fact or every future theory." 4 (See Cardenas v. McLane FoodServices, Inc., 196 F. Supp. 2d 1246,1260 (CD. Cal. 2011) "A conti-ary 5 conclusion would be inconsistent with Califomia public policy..." (Mays v. Wal-Mart Stores, Inc., 354 6 F. Supp. 3d 1136,2019 WL 365898, *8 (CD. Gal. Jan. 29,2019).)^ 7 PAGA's requirements are satisfied ifa notice includes: "(1) the specific statute [defendant] 8 allegedly violated, (2) facts about what position plaintiffs held, and (3) a specific identification of who 9 was allegedly harmed." Green v. Bank of America, N.A. (9th Cir. Oct. 13,2015) 634 Fed. App'x 188, at 10 191 & n.l; see also Cardenas 796 F.Supp.2d at 1259-60; Moua, 2012 WL 370570, at *5. Plaintiffs 11 May 9, 2017 PAGA Notice listed Labor Code sections 204,223, 510,1194,1197 and 1198 as die 12 specific statutes violated, (Pao Decl., , Ex. .); stated that "Arana and aggrieved employees were 13 required to boot up their computers at the beginning of each shift, log in with their credentials, wait for 14 the computer to finish booting up, and eventually start the program that would allow them to clock in for 15 the day," (Id.); and stated that HNCA failed to pay for "time spent working by Arana and the aggrieved 16 employees [that] were not accurately recorded and they were not paid for all actual hours worked," (Id.). 17 These facts satisfy the notice requirement. See Green, 634 Fed.App'x at 191. 18 Accordingly, Plaintiffs failure to specifically name the timekeeping system during the relevant 19 time period should not shield HNCA from liability for this PAGA claim especially when the PAGA 20 Notice itself puts HNCA on notice that itstimekeepingsystem during the relevant time period is at 21 issue, regardless of the name given to it. 22 /// 23 /// 24 /// 25 26 27 ^ "Califomia public policy favors the effective vindication of consumer protections." (Williams, 3 Cal. 5th at 548.) "Hurdles that impede the effective prosecution of representative 28 PAGA actions undermine the Legislature's objectives." (Id.) PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 C. PLAINTIFF FILED HIS PAGA COMPLAINT WELL WIFHIN THE ONE- 2 YEAR STATUTE OF LIMITATIONS AND THEREFORE PLAINTIFF'S 3 CLAIM IS NOT TIME BARRED 4 This Court has already rejected HNCA's argument for striking plaintiffs' PAGA claims, and 5 there is no reason to revisit that mling. HNCA seeks to strike only a portion of plaintiffs' PAGA 6 claims as il relates to the Third Cause of Action, those based on HNCA's failure to properly capture 7 all hours worked by its employees when booting up their computers at the start of their shift before 8 they could clock in. Mot. to Strike at 14-15. 9 The Court should stand by hs earlier mling, not only because HNCA has failed to comply 10 with the requirements for obtaining reconsideration under Code of Civil Procedure section 1008, 11 but because the Court's ruling was clearly correct. PAGA's requirements are satisfied i f a notice 12 includes: "(1) the specific statute [defendant] allegedly violated, (2) facts about what position 13 plaintiffs held, and (3) a specific identification of who was allegedly harmed." Green v. Bank of 14 America, N.A. (9th Cir. Oct. 13, 2015) 634 Fed.App'x 188, at 191 & n.l; see also Cardenas 796 15 F.Supp.2d at 1259-60; Moua, 2012 WL 370570, at *5. 16 Finally, this Court denied HNCA's motions for summary adjudication of plaintiffs' Third 17 and Seventh Causes of Action (for failure to pay all hourly and overtime wages and PAGA 18 penalties) precisely because those motions failed to challenge the portion of plaintiffs' complaint 19 alleging a failure to pay all hourly and overtime wages, and derivative claims for wage statement 20 penalties and waitingtimepenalties. October 23,2018, S.A. Order. The Court could not have 21 denied HNCA motions on this basis and could not have permitted the individual plaintiffs to 22 proceed to trial on that theory unless the Court concluded that plaintiffs had properly pleaded that 23 particular claim. HNCA cannot now be heard to complain that plaintiffs did not properly plead 24 claims of which it was obviously aware when it sought judgment on those claims. 25 Accordingly, as Plaintiffs PAGA action wasfiledwell within one-year of his PAGA Notice, 26 Plaintiffs PAGA claim is not time-barred and Defendants' Motion should be denied in its entirety. 27 However, if this Gourt is inclined to grant HNCA's Motion, then Plaintiff respectfully request leave to 28 file a First Amended Consolidated Complaint that will substitute m other putative class members in his 10 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 stead. Califomia law recognizes that, in the circumstance where the Plaintiff initially possessed 2 standing, the better course is to permit the discovery process of seeking a suitable replacement class 3 representative to play out, at least over a fair period of time. Best Buy Stores L.P. v. Superior Coio't, 137 4 Cal. App. 4th 772,779 (2006) ("[d]iscovery to ascertain a suitable class representative is proper." 5 1. Leave to A mend Is Granted with Extreme Liberality 6 The policy favoring amendment is so strong that denial of leave to amend is almost never 7 justified: "If the motion to amend is timely made and the granting of the motion will not prejudice the 8 opposing party, it is error to refiise permission to amend and where the refusal also results in a party 9 being deprived of therightto assert a meritorious cause of action or a meritorious defense, it is not only 10 error but an abuse of discretion." Morgan v. Superior Court, 172 Cal. App. 2d 527, 530 (1959); see 11 Mabie v. Hyatt, 61 Cal. App. 4th 581, 596 (1998); Bettencourt v. Hennessy Indus., Inc. 205 Cal. App. 12 4th 1103,1111 (2012) (abuse of discretion to deny leave to amend when there is a "reasonable 13 possibility" that defect can be cured). 14 In addition to the strong policy favoring amendments, the ability of a court to even impose 15 conditions upon an amendment is heavily circumscribed. That discretion to impose conditions on leave 16 to amend the complaint "extends only to those conditions which are just, i.e., intended to compensate 17 the defendants for any inconvenience belated amendment may cause." Armenta ex rel. City of Burbank 18 V. Mueller Co., 142 Cal. App. 4th 636,642 (2006) (error to condition amendment upon plaintiff 19 responding to extraordinarily detailed discovery demand); Sanai v. Saltz, 170 Cal. App. 4th 746,769- 20 770 (2009) (error to condition leave to amend on plaintiff "produc[ing] admissible evidence" 21 substantiating amended complaint). 22 2. This Court Will Fulfdl Its Role as a Fiduciary to Absent Putative Class 23 Members by Permitting the Proposed Amendment 24 Federal and Califomia Courts agree that any Court overseeing a putative class action assumes a 25 quasi-fiduciary role to protect the interests of absent class members. It has beenfiequentiyobserved 26 that a federal court has a fiduciary duty to look after the interests of absent class members. Allen v. 27 Bedolla, 787 F.3d 1218,1223 (9tii Cir. 2015), citing e.g Sullivan v. DB Invs., Inc., 667 F.3d 273,319 28 (3d Cu-. 2011). Similarly, Califomia Courts must act asfiduciarieswhen therightsof absent class 11 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNLA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 members are at stake. Kulldr v. Foot Locker Retail, Inc., 168 Cal. App. 4th 116,129 (2008). This 2 function is central to^the role of the'trial court when managing a class action:."The court has a fiduciary 3 responsibility as guardians of therightsof the absentee claiss members when deciding whether to 4 approve a settlement agreement." 4 Newberg on Class Actions, (4th ed. 2002), § 11.41 at p. 118; 7- 5 Eleven Owners for Fair Franchising v. Southland Corp., 85 Gal. App. 4th 1135,1151 (2000). 6 Nationwide, Courts agree thatthe trial.court stands ias a guardian over the absentee class meiribers: ."The 7 courts are suf^osed to be the guardiians of the claiss." Dickersori, Class Actions: The Law of 50 States 8 (2008ed.)§9.02[2],p.9-^. 9 IV. CONCLUSION 10 For all the foregoing reasons; and because HNCA hasfile'multiplesummaiy adjudication , U motions and because itis error striking '-a matter which is esseritial to a catise bf action," G/e/ne«/j,:43 12 Cal.2d at 242; see also Triodyne, Ihc, 240 Cal.App.2d at 542, Plairitiff requests thattiiiisCourt deny 13 HNCA's motibn m its entirety. 14 15 DATED: April 16,2020 SETAREH LAW GROUP 16 17 SHAUN SETAREH 18: WILLIAM'M; PAO 19 Attorneys for Plaintiff TOMAS R. ARANA 20 21 22 23 24 25 26 27 28 12 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENATIVE PAGA CLAIMS 1 PROOF OF SERVICE 2 I am a citizen of the United States and am employed in the Gounty of Los Angeles, State 3 of Califomia. I am over the age of 18 and not a party to the within action. My business address is 315 South Beverly Drive, Suite 315 Beverly Hills, GA 90212. 4 5 On April 17,2020,1 served the foregoing documents described as: 6 PLAINTIFF'S OPPOSITION TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA 7 CLAIMS 8 in this action by transmitting a tme copy thereof enclosed in a sealed envelope addressed as follows: 9 Norman Blumenthal 10 Timothy J. Long Victoria B. Rivapalacio Greenberg Traurig, LLP AJ Bhowmik 11 1201 K. Sri-eet, Suite 1100 Blumenthal, Nordrehaug, & Bhowmik Sacramento, CA 95814 2255 Calle Clara 12 Email: longt@gtlaw.com La Jolla, CA 92037 13 COUNSEL FOR DEFENDANT HEALTH Email: victoria@bamlawca.com NET, INC. Email: norm@bamlawca.com 14 Email: AJ@bamlawca.com Rowena Santos COUNSEL FOR PLAINTIFF ANDREA 15 GREENBERG TRAURIG, LLP SPEARS. 16 18565 Jamboree Road, Suite 500 Irvine, CA 92612 17 Email: santosro@,gtiaw.com COUNSEL FOR DEFENDANT HEALTH 18 NET, INC. 19 \X] BY MAIL 20 I am readily familiar with the practice of Setareh Law Group for the collection and 21 processing of correspondence for mailing with the United States Postal Service. It is the 22 practice that correspondence is deposited with United States Postal Service the same day it is submitted for mailing with postage thereon fully prepaid at Beverly Hills, Califomia. I am 23 aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 24 25 [X] STATE 26 I declare under penalty of perjury under the laws of the State of Califomia that the above is tme and correct. 27 28 PROOF OF SERVICE Executed on April 17, 2020, at Beverly Hills; California. ^auren Farrington 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22' 23 24 25 26 27 28 PROOF OF SERVICE HkC'iiiVED,- Ir., h I, >- i, 1 V . / L.* • . 'j^ ' ••- 1 } t , ' V 7 P'J" t.• 1 " n!;n.ii;0ilCOi;lil'(;i' D-'L'