Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com ENDORSED
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
5 Facsimile: +1 916 329 4900
6 ANNIE H. CHEN (STATE BAR NO. 292032)
annie.chen@orrick.com
7 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
8 Los Angeles, CA 90017-5855
Telephone: +1 213 629 2020
9 Facsimile: +1 213 612 2499
10 Attorneys for Defendant
HEALTH NET OF CALIFORNIA, INC.
11
SUPERIOR COURT OF THE STATE OF CALIFORNIA
12
COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated.
15 Plaintiff, REPLY TO AMENDED RESPONSIVE
SEPARATE STATEMENT OF
16 DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF
17 HEALTH NET OF CALIFORNIA, INC., a CALIFORNIA, INC.'S MOTION FOR
California Corporation; and Does 1 through 50, SUMMARY ADJUDICATION
18 inclusive,
Hearing Date: September 27, 2018
19 Defendants. Time: 9:00 a.m.
Judge: Hon. Christopher E. Krueger
20 Dept.: 54
21 Complaint Filed: April 5,2017
FAC Filed: June 29, 2017
22 Consolidated Complaint Filed: Dec. 21, 2017
-J TOMAS R. ARANA, on behalf of himself, all
< 23 Complaint Filed: August 1, 2017
others similarly situated.
24 Plaintiff,
CD
CC 25
O HEALTH NET OF CALIFORNIA, INC., a
26 California corporation; and DOES 1-50,
a 27
inclusive.
Defendant.
28
4130-5040-0790.1
AMENDED REPLY SEPARATE STATEMENT IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 Defendant Health Net of California, Inc. ("HNCA") submits the following Amended Reply
2 to Plaintiffs' Amended Responsive Separate Statement of Disputed Material and Additional Facts
3 in Opposition to HNCA's Motion for Summary Adjudication. Plaintiffs have failed to submit
4 evidence sufficient to dispute the material facts set forth in HNCA's Separate Statement.
5 Accordingly, HNCA is entitled to summary adjudication.
6 HNCA'S STATEMENT OF UNDISPUTED MATERIAL FACTS
7 1. THIRD CAUSE OF ACTION FOR FAILURE TO PAY HOURLY WAGES AND
FAILURE TO PAY OVERTIME WAGES
8
9 Issue 1: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged
failure to include cash benefits received in lieu of medical payment in Plaintiff
10 Spears' regular rate of pay fails because cash benefits were properly excluded
from her regular rate calculation under the Benefit-Plan Contributions
11 Exception.
12
Undisputed Material Facts Plaintiffs' Response and HNCA's Reply and
13 and Supporting Evidence: Supporting Evidence: Supporting Evidence:
14 1. Plaintiff Spears served 1. Disputed as to the term 1. Undisputed.
15 as a non-exempt "served" - Plaintiff worked for
HNCA customer Defendant as employee and Plaintiffs do not dispute this
16 service representative was, therefore, entitled to the fact in their original separate
from September 2014 protections of the California statement in opposition to
17 to October 2016 in Labor Code requiring all HNCA's Motion. They
Rancho Cordova. remuneration to be included in should not be permitted to
18 her regular rate. rewrite and contradict what
Declaration of Diane they previously conceded.
19 C. Rodes (hereinafter Declaration of Timothy J.
20 "Rodes Dec") 113. Long ("Long Dec"), 3, Ex.
A.
21
Plaintiffs' response also does
22 not contradict UF 1.
Objecting to a verb ("serve")
23 that is obviously
synonymous with "work"
24
does not create a triable
25 issue.
26 Further, Plaintiffs' misstate
the law - the California
27 Labor Code requires
remuneration to be included
28
4130-5040-0790.1
AMENDED REPLY SEPARATE STATEMENT IN SUPPORT OF DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 in the regular rate of pay
calculation unless there is an
2 exception. The parties agree
3 that one exception to general
rule that all remuneration
4 paid to employees should be
included in the regular rate is
5 the Benefit-Plan
Contributions Exception,
6 found at 29 U.S.C. section
7 207(e)(4).
8 2. Plaintiff Arana began Undisputed. Undisputed.
working out of the
9 Rancho Cordova call
10 center in 2008 and
continues to work
11 there now. He started
as a non-exempt
12 customer service
representative for
13 HNCA until his
14 promotion on or about
November 14, 2015 to
15 Contact Center
Analyst, an exempt
16 position. Since June
2017, Plaintiff Arana
17
has been working as a
18 Call Center Systems
Analyst I, also an
19 exempt position.
20 Rodes Dec. Tl 3
21. Between January 1, 3. Disputed as incomplete. 3. Undisputed.
22 2001 and
December 31,2016, Defendant's Plan provided Plaintiffs do not dispute this
23 HNCA sponsored a medical benefits through a third fact in their original separate
cafeteria plan - a party but also established the statement in opposition to
24 written health and plan to provide cash payments HNCA's Mofion. They
welfare plan - called from Defendant directly to should not be permitted to
25 the "Health Net, Inc. employees who waived their rewrite and contradict what
Associates Benefit right to medical benefits and they previously conceded.
26 Long Dec, ^ 3, Ex. A.
Program" (the "Plan"), the plan was not adopted "for
27 which HNCA adopted the benefit of its employees"
for the benefit of its but rather was part of
28 Defendant's effort "to provide
4130-5040-0790.1 2-
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 employees. associates with a competitive Plaintiffs' response also does
benefits program that is part not contradict UF 3.
2 Declarafion of Debbie Colia of our total remuneration
("Colia Dec"), TI2, Exhs. A- plan." (2011-2015 Summary This material fact is
3
L Plan Description at pg. I and supported by the declaration
4 2016 Summary Plan of Debbie Colia as well as
Description at pg. 1, attached the explicit language of the
5 respectively as Exhibits 3 & 4). Plan. Colia Dec, ^ 2, Exs.
A-I.
6 (See also Summary Plan at
Exhibit 3 at page Plaintiffs' cited evidence
7
HNCA000921 and at Exhibit 4 also does not contradict the
8 at page HNCA000764)("To undisputed material fact.
help you pay for the cost of
9 your benefits under the Health First, that the Plan is part of
Net, Inc. Associate Benefits HNCA's total remuneration
10 Program, your Employer package has no bearing on
provides you with 'Flex the claims at issue in the
11
Dollars' that you can use to MSA. The parties agree that
12 pay for the cost of your one exception to general rule
optional benefits. In most that all remimeration paid to
13 cases, if you use these Flex employees should be
Dollars to pay for before-tax included in the regular rate is
14 benefits, these Flex Dollars will the Benefit-Plan
be tax free to you. ... If you Contributions Exception,
15
waive coverage or you have found at 29 U.S.C. section
16 Flex Dollars left over after 207(e)(4). Additionally, the
you pay the cost of all of the characterization as
17 optional benefits you elect, "remuneration" has nothing
you will receive a portion of to do with whether the Plan
18 was adopted for the benefit
your Flex Dollars as cash in
19 your paycheck and you will of HNCA employees,
be taxed on this amount") specifically to provide health
20 and welfare benefits for
(See also Summary plan HNCA employees. Colia
21 descriptions at Exhibit 3 at Dec, 12, Exs. A-I.
22 page HNCA000916 and at
Exhibit 4 at page iSecond, the tax treatment of
23 HNCA000755) (describing the Flex Dollars also has nothing
term "employer" in the Health to do with the claims in this
24 Plan as the party that pays the case. The applicability of
cash for waived medical tax law has nothing to do
25 benefits as Defendant says: with whether HNCA's
"You will see the terms 'Health irrevocable contributions to
26 an account controlled and
Net' and 'the Company' used
27 throughout this SPD to refer to administered by Plan
Health Net, Inc. and all Sponsor HNI are excluded
28 participating companies. The from the regular rate of pay
4130-5040-0790.1 3-
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 term 'Employer' is used in this pursuant to the Benefit-Plan
SPD to refer to the company Contributions Exception.
2 which is your direct
employer.") Third, Plainfiffs
3
mischaracterize and meike
4 (See also Summary plan conclusory assertions
descriptions at Exhibit 3 at purportedly based on
5 page HNCA000916 and at HNCA's Summary Plan
Exhibit 4 at Description ("Plan SPD").
6 page HNCA000755)(describing Yuzon V. Collins, 116 Cal.
the plan as resulting from App. 4th 149, 166 (2004) (an
7
Defendant's effort to "provide issue of fact is created by a
8 associates with a competitive conflict of evidence, not by
benefits program that is part of speculation, conjecture,
9 [Defendant's] total conclusory assertions or
remuneration plan.") mere possibilities).
10 However, nowhere does the
(5eea/50 PMK 61:10-18, Plan SPD describe the term
11 "employer" as the party that
Exhibit 5) (cash payments for
12 waiving benefits are directly pays the cash benefits to
deposited into Plaintiffs bank employees who waive
13 account in wage statement of medical benefits as Plaintiffs
taxed wages by Defendant contend. Rather, the Plan
14 directly to Plaintiff) SPD simply defines
"employer" as the company
15 who is the employee's direct
16 employer and is participating
in HNI's Plan. Colia Dec, t
17 5, Ex. J, Pg. l,at
HNCA000916, Ex. K, Pg. 1
18 at HNCA000754. This is
corroborated by the Plan
19 document itself which
20 defined "employer" as an
entity who elects to
21 participate in HNI's Plan.
Colia Dec, ^ 2, Ex. A, Pg. 3
22 atHNCA001008
("'Employer' shall mean
23 [HNI], each Affiliate of
24 [HNI] that is designated by
[HNI] as an Employei- under
25 the Plan, and any other entity
which elects with the consent
26 of [HNI] or [HNI's] delegate
to participate in the Plan.")
27
28
4130-5040-0790.1
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1
2 Lastly, that cash benefits are
deposited into Plaintiffs'
3
bank accounts is immaterial.
4 In fact, cash benefits are
deposited into Plaintiffs'
5 bank accounts by HNI,
which oversees and
6 administers payroll for
HNCA. (Declaration of
7
Kelly Sarabia ("Sarabia
8 Dec."),1|l). How one
receives benefits from the
9 Plan is completely irrelevant
to whether the Benefit-Plan
10 Contributions Exception
11 applies.
12 Plaintiffs reference the
deposition testimony of
13 Diane Rodes in their effort to
manufacture a triable issue.
14 Declaration of Aparajit
15 Bhowmik ("Bhowmik
Dec"), Tl 6, Ex. 5, Rodes
16 Dep., 61:10-18. However,
Ms. Rodes was not
"17 designated as the PMK
regarding the mechanics of
18
the Plan and how the Plan
19 worked. Long Dec, T| 7, Ex.
C. In fact. Plaintiffs never
20 even sought to depose a Plan
PMK who could testify as to
21 the mechanics of the Plan.
22 Id. That HNCA appears on
the wage statement is also
23 immaterial. Labor Code
section 226 requires
24 employers to provide
employees with accurate
25 itemized statement showing
26 nine critical payroll
elements. Lab. Code §
27 226(a). One of the required
items is the name of the legal
28 entity that is the employer.
4130-5040-0790.1
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 Id. at § 226(a)(8). HNCA's
compliance vvith the Labor
2 Code in this regard does not
3 equate to any suggestion that
the cash benefits in fact did
4 not come from HNI as the
Plan administrator.
5
The Plan was governed 4. Disputed as vague as to 4. Undisputed.
6 by Section 125 of the "overseen," compound,
Internal Revenue immaterial to whether cash in Plaintiffs do not dispute this
7 fact in their original separate
Code, was subject to lieu of bonus payments should
8 the Employee be included in the regular rate, statement in opposition to
Retirement Income and as calling for a legal HNCA's Mofion. They
9 Security Act, and was conclusion. should not be permitted to
overseen by a Benefits rewrite and contradict what
10 Committee. she previously conceded.
Long Dec, T| 3, Ex. A.
11
Colia Dec, ^ 3.
12 Plaintiffs' response also does
not contradict UF 4, and the
13 objections as to vagueness
and "compound", apart from
14 being a non sequitur in this
context does not create a
15 triable issues, considering
16 the declarations and the Plan
documents.
17
This fact is hardly
18 "immaterial." The parties
agree that one exception to
19 general rule that all
20 remuneration paid to
employees should be
21 included in the regular rate is
the Benefit-Plan
22 Contributions Exception,
found at 29 U.S.C. section
23 207(e)(4). The first
24. requirement of the Benefit-
Plan Contributions is that the
25 contributions must be made
pursuant to a specific plan or
26 program adopted by the
employer . . . and
27 communicated to the
28 employees." 29 C.F.R.
4130-5040-0790.1 6-
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 778.215 (a)(1). This
material fact goes directly to
2 this prong showing that
3 HNCA adopted a specific
Plan, and Plaintiffs have not
4 controverted this point.
5 5. As called for in the 5. Disputed. 5. Undisputed.
Plan, the Benefits
6 The term Plaintiffs did not dispute this
Committee had
fiduciary duties and "contributions" is vague and fact in their original separate
7
responsibilities to ambiguous. statement in opposition to
8 ensure that HNCA's HNCA's Mofion. They
employer contributions If Defendant is referring should not be permitted to
9 to the Plan were to the term "contributions" as rewrite and contradict what
tracked, kept in a those payments for employees they previously conceded.
10 who waived medical benefits Long Dec, f 3, Ex. A.
separate account, and
used only for proper and elected to receive the
11
Plan purpose related to taxed, cash "MedFlx Wave" or Plaintiffs' response also does
12 the health and welfare "DenFlx Wave'' payments, then not contradict UF 5.
benefits of HNCA the "fact" is DISPUTED as
13 employees, including vague and ambiguous on the The term "contributions" is
Plaintiffs and their basis that Defendant also paid not vague, considering the
14 cash directly to Plaintiff and declarations and the Plan
dependents.
she could spend this wage on documents.
15
Colia Dec, ^4. Einything she wanted as
16 opposed to only on "health and Plaintiffs' cited evidence
welfare benefits" and these also does not contradict the
17 cash payments were part of a undisputed rnaterial fact.
total remuneration package
18 fi-om Defendant to employees. The undisputed evidence
shows that HNI's Benefits
19 Committee had fiduciary
(See Summary plan
20 descriptions at Exhibit 3 at responsibilities to ensure that
page EINCA000916 and at HNCA's employer
21 Exhibit 4 at page contributions to the Plan
HNCA000755)(describing the were tracked, kept in a
22 plan as resulting from separate account, and used
23 Defendant's effort to "provide only for proper Plan purpose
associates with a competitive related to the health and
24 benefits program that is part of welfare benefits of HNCA
[Defendant's] total employees. Colia Dec, ^ 4.
25 remunerafion plan.")
Further, Plaintiffs' cited
26 (See Summary Plan at Exhibit 3 evidence does not support
at page HNCA000921 and at their statements. HNCA's
27 contributions include cash
Exhibit 4 at page
28 HNCA000764)("To help you benefits paid to Plaintiffs and
4130-5040-0790.1
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 pay for the cost of your benefits other employees who
under the Health Net, Inc. declined either medical
2 Associate Benefits Program, and/or dental. Flex Dollars
3 your Employer provides you are defined in the Plan SPD
with 'Flex Dollars' that you as "[e]mployer contributions
4 can use to pay for the cost of that [Participant] can use
your optional benefits. In most toward the cost of [his or
5 cases, if you use these Flex her] optional benefits or
Dollars to pay for before-tax receive in cash.") Colia Dec,
6 benefits, these Flex Dollars will t5,Ex. K, Pg. 142 at
7 be tax free to you. ... If you HNCA000895. Flex Dollars
waive coverage or you have include cash benefits and
8 Flex Dollars left over after were not "different" as
you pay the cost of all of the Plaintiffs contend. Colia
9 optional benefits you elect, Dec, Yi 2, 4-5, Ex. A., Pg. 3
you will receive a portion of atHNCA001008;Ex. K, Pg.
10 your Flex Dollars as cash in 142 at HNCA000895 (Flex
11 your paycheck and you will Dollars defined as
be taxed on this amount") "[ejmployer contribufions
12 that [Participant] can use
(See also Summary plan toward the cost of [his or
13 descriptions at Exhibit 3 at her] optional benefits or
page HNCA000916 and at receive in cash.")
14
Exhibit 4 at page
15 HNCA000755) (describing the The Plan SPD only states
term "employer" in the Health that HNCA "strives to
16 Plan as the party that pays the provide associates with a
cash for waived medical competitive benefits program
17 benefits as Defendant says: that is part of [its] total
"You will see the terms 'Health remuneration plan." Colia
18 Net' and 'the Company' used Dec, 115, Ex. J, Pg. l,at
19 throughout this SPD to refer to HNCA000916, Ex. K, Pg. 1
Health Net, Inc. and all at HNCA000754.
20 participating companies. The Addifionally, the purported
term 'Employer' is used in this fact is immaterial. That the
21 SPD to refer to the company Plan is part of HNCA's total
which is your direct remuneration package has no
22 employer.") bearing on the claims at issue
23 in this Mofion. The parties
(See also PMK 61:10-18, agree that one exception to
24 Exhibit 5) (cash payments for general rule that all
waiving benefits are directly remuneration paid to
25 deposited into Plaintiffs bank employees should be
account in wage statement of included in the regular rate is
26 taxed wages by Defendant the Benefit-Plan
27 directly to Plaintiff) Contributions Exception,
found at 29 U.S.C. secfion
28
4130-5040-0790.1 8-
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 207(e)(4).
2 Nowhere does the Plan SPD
describe the term "employer"
3 as the party that directly pays
4 the cash benefits to
employees who waive
5 medical benefits as Plaintiffs
contend. Rather, the Plan
6 SPD simply defines
"employer" as the company
7
who is the employee's direct
8 employer and is participating
in HNI's Plan. Colia Dec, H
9 5, Ex. J, Pg. l,at
HNCA000916, Ex. K, Pg. 1
10 at HNCA000754. This is
corroborated by the Plan
11
document itself which
12 defined "employer" as an
entity who elects to
.13 participate in HNI's Plan.
Colia Dec, H 2, Ex. A, Pg. 3
14 atHNCA001008
15 ("'Employer' shall mean
[HNI], each Affiliate of
16 [HNI] that is designated by
[HNI] as an Employer under
17 the Plan, and any other entity
which elects with the consent
18 of [HNI] or [HNI's] delegate
19 to participate in the Plan.")
20 Further, the tax implications
are also imiriaterial. All Flex
21 Dollars, including cash
22 benefits, all of which are
Plan benefits (not cash-in-
23 lieu of benefits), come from
HNCA's contributions to an
24 accoimt maintained and
controlled by HNI. Colia
25 Dec, 4, 11.
26
That cash benefits are
27 deposited into Plaintiffs'
bank account is similarly
28 immaterial. In fact, cash
4130-5040-0790.1 9-
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 benefits are deposited into
Plaintiffs' bank accounts by
2 HNI, who oversees and
administers payroll for
3
HNCA. Sarabia Dec, f 1.
4 How one receives benefits
from the Plan is completely
5 irrelevant to whether the
Benefit-Plan Contributions
6 Exception applies.
7
Plaintiffs reference the
8 deposition testimony of
Diane Rodes in their effort to
9 manufacture a triable issue.
Bhowmik Dec, H 6, Ex. 5,
10 Rodes Dep., 61:10-18.
11 However, Ms. Rodes was not
designated as the PMK
12 regEirding the mechemics of
the Plan and how the Plan
13 worked. Long Dec, ^ 7, Ex.
C. In fact, Plaintiffs never
14 even sought to depose a Plan
15 PMK who could testify as to
the mechanics of the Plan.
16 Id.
17 That HNCA appears on the
wage statement is also
18
immaterial. Labor Code
19 section 226 requires
employers to provide
20 employees with accurate
itemized statement showing
21 nine critical payroll
elements. Lab. Code §
22
226(a). One of the required
23 items is the name of the legal
entity that is the employer.
24 Id. at § 226(a)(8). HNCA's
corripliance with the Labor
25 Code in this regard does not
26 equate to any suggestion that
the cash benefits in fact did
27 not come from HNI as the
Plan administrator.
28
4130-5040-0790.1 10
REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION
1 6. HNI treated HNCA as 6. Disputed and objection 6. Undisputed.
a third party for as vague and ambiguous as to
2. purposes of the term "administering the Plaintiffs did not dispute this
administering the plan plan." fact in their original separate
3
and vice versa. statement in opposition to
4 Defendant paid cash payments HNCA's Mofion. They
Colia Dec, ^ 4. for employees who opted out of should not be permitted to
5 receiving medical benefits. To rewrite and contradict what
the extent Defendant refers to they previously conceded.
6 "administering the plan" as Long Dec, T| 3, Ex. A.
including paying cash in lieu of
7
benefit payments, then the fact Plainfiffs' response also does
8 is DISPUTED because the plan not contradict UF 6.
documents do not say that the
9 cash is paid by a third party First, the term
and, to the contrary, the plan "administering" is not vague,
10 documents say that Defendant considering the declarations
as the employer is a first party and the Plan documents.
11
not a third party who is making
the payments directly to Second, this fact is supported
12
Plainfiff by the declaration of Debbie
13 Colia and Plainfiffs fail to
See the summary plan reference supporting
14 descriptions at Exhibit 3 at evidence that contradicts the
page HNCA000916 and at undisputed material fact -
15 their allegedly supporting
Exhibit 4 at page
HNCA000755 state that "You evidence also does not say
16
will see the terms 'Health Net' what they contend it does.
17 and 'the Company' used
throughout this SPD to refer to Nowhere does the Plan SPD
18 Health Net, Inc. and all describe the term "employer"
participating companies. The as the party that directly pays
19 the cash benefits to
term 'Employer' is used in this
SPD to refer to the company employees who waive
20
which is your direct employer." medical benefits as Plaintiffs
21 contend. Rather, the Plan
(See Summary Plan at Exhibit 3 SPD simply defines
22 at page HNCA000921 and at "employer" as the company
Exhibit 4 at page who is the employee's direct
23 EINCA000764)("To help you employer and is participating
24 pay for the cost of your benefits in HNI's Plan. Colia Dec, H
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com ENDORSED 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 5 Facsimile: +1 916 329 4900 6 ANNIE H. CHEN (STATE BAR NO. 292032) annie.chen@orrick.com 7 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 8 Los Angeles, CA 90017-5855 Telephone: +1 213 629 2020 9 Facsimile: +1 213 612 2499 10 Attorneys for Defendant HEALTH NET OF CALIFORNIA, INC. 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated. 15 Plaintiff, REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF 16 DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF 17 HEALTH NET OF CALIFORNIA, INC., a CALIFORNIA, INC.'S MOTION FOR California Corporation; and Does 1 through 50, SUMMARY ADJUDICATION 18 inclusive, Hearing Date: September 27, 2018 19 Defendants. Time: 9:00 a.m. Judge: Hon. Christopher E. Krueger 20 Dept.: 54 21 Complaint Filed: April 5,2017 FAC Filed: June 29, 2017 22 Consolidated Complaint Filed: Dec. 21, 2017 -J TOMAS R. ARANA, on behalf of himself, all < 23 Complaint Filed: August 1, 2017 others similarly situated. 24 Plaintiff, CD CC 25 O HEALTH NET OF CALIFORNIA, INC., a 26 California corporation; and DOES 1-50, a 27 inclusive. Defendant. 28 4130-5040-0790.1 AMENDED REPLY SEPARATE STATEMENT IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 Defendant Health Net of California, Inc. ("HNCA") submits the following Amended Reply 2 to Plaintiffs' Amended Responsive Separate Statement of Disputed Material and Additional Facts 3 in Opposition to HNCA's Motion for Summary Adjudication. Plaintiffs have failed to submit 4 evidence sufficient to dispute the material facts set forth in HNCA's Separate Statement. 5 Accordingly, HNCA is entitled to summary adjudication. 6 HNCA'S STATEMENT OF UNDISPUTED MATERIAL FACTS 7 1. THIRD CAUSE OF ACTION FOR FAILURE TO PAY HOURLY WAGES AND FAILURE TO PAY OVERTIME WAGES 8 9 Issue 1: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to include cash benefits received in lieu of medical payment in Plaintiff 10 Spears' regular rate of pay fails because cash benefits were properly excluded from her regular rate calculation under the Benefit-Plan Contributions 11 Exception. 12 Undisputed Material Facts Plaintiffs' Response and HNCA's Reply and 13 and Supporting Evidence: Supporting Evidence: Supporting Evidence: 14 1. Plaintiff Spears served 1. Disputed as to the term 1. Undisputed. 15 as a non-exempt "served" - Plaintiff worked for HNCA customer Defendant as employee and Plaintiffs do not dispute this 16 service representative was, therefore, entitled to the fact in their original separate from September 2014 protections of the California statement in opposition to 17 to October 2016 in Labor Code requiring all HNCA's Motion. They Rancho Cordova. remuneration to be included in should not be permitted to 18 her regular rate. rewrite and contradict what Declaration of Diane they previously conceded. 19 C. Rodes (hereinafter Declaration of Timothy J. 20 "Rodes Dec") 113. Long ("Long Dec"), 3, Ex. A. 21 Plaintiffs' response also does 22 not contradict UF 1. Objecting to a verb ("serve") 23 that is obviously synonymous with "work" 24 does not create a triable 25 issue. 26 Further, Plaintiffs' misstate the law - the California 27 Labor Code requires remuneration to be included 28 4130-5040-0790.1 AMENDED REPLY SEPARATE STATEMENT IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 in the regular rate of pay calculation unless there is an 2 exception. The parties agree 3 that one exception to general rule that all remuneration 4 paid to employees should be included in the regular rate is 5 the Benefit-Plan Contributions Exception, 6 found at 29 U.S.C. section 7 207(e)(4). 8 2. Plaintiff Arana began Undisputed. Undisputed. working out of the 9 Rancho Cordova call 10 center in 2008 and continues to work 11 there now. He started as a non-exempt 12 customer service representative for 13 HNCA until his 14 promotion on or about November 14, 2015 to 15 Contact Center Analyst, an exempt 16 position. Since June 2017, Plaintiff Arana 17 has been working as a 18 Call Center Systems Analyst I, also an 19 exempt position. 20 Rodes Dec. Tl 3 21. Between January 1, 3. Disputed as incomplete. 3. Undisputed. 22 2001 and December 31,2016, Defendant's Plan provided Plaintiffs do not dispute this 23 HNCA sponsored a medical benefits through a third fact in their original separate cafeteria plan - a party but also established the statement in opposition to 24 written health and plan to provide cash payments HNCA's Mofion. They welfare plan - called from Defendant directly to should not be permitted to 25 the "Health Net, Inc. employees who waived their rewrite and contradict what Associates Benefit right to medical benefits and they previously conceded. 26 Long Dec, ^ 3, Ex. A. Program" (the "Plan"), the plan was not adopted "for 27 which HNCA adopted the benefit of its employees" for the benefit of its but rather was part of 28 Defendant's effort "to provide 4130-5040-0790.1 2- REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 employees. associates with a competitive Plaintiffs' response also does benefits program that is part not contradict UF 3. 2 Declarafion of Debbie Colia of our total remuneration ("Colia Dec"), TI2, Exhs. A- plan." (2011-2015 Summary This material fact is 3 L Plan Description at pg. I and supported by the declaration 4 2016 Summary Plan of Debbie Colia as well as Description at pg. 1, attached the explicit language of the 5 respectively as Exhibits 3 & 4). Plan. Colia Dec, ^ 2, Exs. A-I. 6 (See also Summary Plan at Exhibit 3 at page Plaintiffs' cited evidence 7 HNCA000921 and at Exhibit 4 also does not contradict the 8 at page HNCA000764)("To undisputed material fact. help you pay for the cost of 9 your benefits under the Health First, that the Plan is part of Net, Inc. Associate Benefits HNCA's total remuneration 10 Program, your Employer package has no bearing on provides you with 'Flex the claims at issue in the 11 Dollars' that you can use to MSA. The parties agree that 12 pay for the cost of your one exception to general rule optional benefits. In most that all remimeration paid to 13 cases, if you use these Flex employees should be Dollars to pay for before-tax included in the regular rate is 14 benefits, these Flex Dollars will the Benefit-Plan be tax free to you. ... If you Contributions Exception, 15 waive coverage or you have found at 29 U.S.C. section 16 Flex Dollars left over after 207(e)(4). Additionally, the you pay the cost of all of the characterization as 17 optional benefits you elect, "remuneration" has nothing you will receive a portion of to do with whether the Plan 18 was adopted for the benefit your Flex Dollars as cash in 19 your paycheck and you will of HNCA employees, be taxed on this amount") specifically to provide health 20 and welfare benefits for (See also Summary plan HNCA employees. Colia 21 descriptions at Exhibit 3 at Dec, 12, Exs. A-I. 22 page HNCA000916 and at Exhibit 4 at page iSecond, the tax treatment of 23 HNCA000755) (describing the Flex Dollars also has nothing term "employer" in the Health to do with the claims in this 24 Plan as the party that pays the case. The applicability of cash for waived medical tax law has nothing to do 25 benefits as Defendant says: with whether HNCA's "You will see the terms 'Health irrevocable contributions to 26 an account controlled and Net' and 'the Company' used 27 throughout this SPD to refer to administered by Plan Health Net, Inc. and all Sponsor HNI are excluded 28 participating companies. The from the regular rate of pay 4130-5040-0790.1 3- REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 term 'Employer' is used in this pursuant to the Benefit-Plan SPD to refer to the company Contributions Exception. 2 which is your direct employer.") Third, Plainfiffs 3 mischaracterize and meike 4 (See also Summary plan conclusory assertions descriptions at Exhibit 3 at purportedly based on 5 page HNCA000916 and at HNCA's Summary Plan Exhibit 4 at Description ("Plan SPD"). 6 page HNCA000755)(describing Yuzon V. Collins, 116 Cal. the plan as resulting from App. 4th 149, 166 (2004) (an 7 Defendant's effort to "provide issue of fact is created by a 8 associates with a competitive conflict of evidence, not by benefits program that is part of speculation, conjecture, 9 [Defendant's] total conclusory assertions or remuneration plan.") mere possibilities). 10 However, nowhere does the (5eea/50 PMK 61:10-18, Plan SPD describe the term 11 "employer" as the party that Exhibit 5) (cash payments for 12 waiving benefits are directly pays the cash benefits to deposited into Plaintiffs bank employees who waive 13 account in wage statement of medical benefits as Plaintiffs taxed wages by Defendant contend. Rather, the Plan 14 directly to Plaintiff) SPD simply defines "employer" as the company 15 who is the employee's direct 16 employer and is participating in HNI's Plan. Colia Dec, t 17 5, Ex. J, Pg. l,at HNCA000916, Ex. K, Pg. 1 18 at HNCA000754. This is corroborated by the Plan 19 document itself which 20 defined "employer" as an entity who elects to 21 participate in HNI's Plan. Colia Dec, ^ 2, Ex. A, Pg. 3 22 atHNCA001008 ("'Employer' shall mean 23 [HNI], each Affiliate of 24 [HNI] that is designated by [HNI] as an Employei- under 25 the Plan, and any other entity which elects with the consent 26 of [HNI] or [HNI's] delegate to participate in the Plan.") 27 28 4130-5040-0790.1 REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 2 Lastly, that cash benefits are deposited into Plaintiffs' 3 bank accounts is immaterial. 4 In fact, cash benefits are deposited into Plaintiffs' 5 bank accounts by HNI, which oversees and 6 administers payroll for HNCA. (Declaration of 7 Kelly Sarabia ("Sarabia 8 Dec."),1|l). How one receives benefits from the 9 Plan is completely irrelevant to whether the Benefit-Plan 10 Contributions Exception 11 applies. 12 Plaintiffs reference the deposition testimony of 13 Diane Rodes in their effort to manufacture a triable issue. 14 Declaration of Aparajit 15 Bhowmik ("Bhowmik Dec"), Tl 6, Ex. 5, Rodes 16 Dep., 61:10-18. However, Ms. Rodes was not "17 designated as the PMK regarding the mechanics of 18 the Plan and how the Plan 19 worked. Long Dec, T| 7, Ex. C. In fact. Plaintiffs never 20 even sought to depose a Plan PMK who could testify as to 21 the mechanics of the Plan. 22 Id. That HNCA appears on the wage statement is also 23 immaterial. Labor Code section 226 requires 24 employers to provide employees with accurate 25 itemized statement showing 26 nine critical payroll elements. Lab. Code § 27 226(a). One of the required items is the name of the legal 28 entity that is the employer. 4130-5040-0790.1 REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 Id. at § 226(a)(8). HNCA's compliance vvith the Labor 2 Code in this regard does not 3 equate to any suggestion that the cash benefits in fact did 4 not come from HNI as the Plan administrator. 5 The Plan was governed 4. Disputed as vague as to 4. Undisputed. 6 by Section 125 of the "overseen," compound, Internal Revenue immaterial to whether cash in Plaintiffs do not dispute this 7 fact in their original separate Code, was subject to lieu of bonus payments should 8 the Employee be included in the regular rate, statement in opposition to Retirement Income and as calling for a legal HNCA's Mofion. They 9 Security Act, and was conclusion. should not be permitted to overseen by a Benefits rewrite and contradict what 10 Committee. she previously conceded. Long Dec, T| 3, Ex. A. 11 Colia Dec, ^ 3. 12 Plaintiffs' response also does not contradict UF 4, and the 13 objections as to vagueness and "compound", apart from 14 being a non sequitur in this context does not create a 15 triable issues, considering 16 the declarations and the Plan documents. 17 This fact is hardly 18 "immaterial." The parties agree that one exception to 19 general rule that all 20 remuneration paid to employees should be 21 included in the regular rate is the Benefit-Plan 22 Contributions Exception, found at 29 U.S.C. section 23 207(e)(4). The first 24. requirement of the Benefit- Plan Contributions is that the 25 contributions must be made pursuant to a specific plan or 26 program adopted by the employer . . . and 27 communicated to the 28 employees." 29 C.F.R. 4130-5040-0790.1 6- REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 778.215 (a)(1). This material fact goes directly to 2 this prong showing that 3 HNCA adopted a specific Plan, and Plaintiffs have not 4 controverted this point. 5 5. As called for in the 5. Disputed. 5. Undisputed. Plan, the Benefits 6 The term Plaintiffs did not dispute this Committee had fiduciary duties and "contributions" is vague and fact in their original separate 7 responsibilities to ambiguous. statement in opposition to 8 ensure that HNCA's HNCA's Mofion. They employer contributions If Defendant is referring should not be permitted to 9 to the Plan were to the term "contributions" as rewrite and contradict what tracked, kept in a those payments for employees they previously conceded. 10 who waived medical benefits Long Dec, f 3, Ex. A. separate account, and used only for proper and elected to receive the 11 Plan purpose related to taxed, cash "MedFlx Wave" or Plaintiffs' response also does 12 the health and welfare "DenFlx Wave'' payments, then not contradict UF 5. benefits of HNCA the "fact" is DISPUTED as 13 employees, including vague and ambiguous on the The term "contributions" is Plaintiffs and their basis that Defendant also paid not vague, considering the 14 cash directly to Plaintiff and declarations and the Plan dependents. she could spend this wage on documents. 15 Colia Dec, ^4. Einything she wanted as 16 opposed to only on "health and Plaintiffs' cited evidence welfare benefits" and these also does not contradict the 17 cash payments were part of a undisputed rnaterial fact. total remuneration package 18 fi-om Defendant to employees. The undisputed evidence shows that HNI's Benefits 19 Committee had fiduciary (See Summary plan 20 descriptions at Exhibit 3 at responsibilities to ensure that page EINCA000916 and at HNCA's employer 21 Exhibit 4 at page contributions to the Plan HNCA000755)(describing the were tracked, kept in a 22 plan as resulting from separate account, and used 23 Defendant's effort to "provide only for proper Plan purpose associates with a competitive related to the health and 24 benefits program that is part of welfare benefits of HNCA [Defendant's] total employees. Colia Dec, ^ 4. 25 remunerafion plan.") Further, Plaintiffs' cited 26 (See Summary Plan at Exhibit 3 evidence does not support at page HNCA000921 and at their statements. HNCA's 27 contributions include cash Exhibit 4 at page 28 HNCA000764)("To help you benefits paid to Plaintiffs and 4130-5040-0790.1 REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 pay for the cost of your benefits other employees who under the Health Net, Inc. declined either medical 2 Associate Benefits Program, and/or dental. Flex Dollars 3 your Employer provides you are defined in the Plan SPD with 'Flex Dollars' that you as "[e]mployer contributions 4 can use to pay for the cost of that [Participant] can use your optional benefits. In most toward the cost of [his or 5 cases, if you use these Flex her] optional benefits or Dollars to pay for before-tax receive in cash.") Colia Dec, 6 benefits, these Flex Dollars will t5,Ex. K, Pg. 142 at 7 be tax free to you. ... If you HNCA000895. Flex Dollars waive coverage or you have include cash benefits and 8 Flex Dollars left over after were not "different" as you pay the cost of all of the Plaintiffs contend. Colia 9 optional benefits you elect, Dec, Yi 2, 4-5, Ex. A., Pg. 3 you will receive a portion of atHNCA001008;Ex. K, Pg. 10 your Flex Dollars as cash in 142 at HNCA000895 (Flex 11 your paycheck and you will Dollars defined as be taxed on this amount") "[ejmployer contribufions 12 that [Participant] can use (See also Summary plan toward the cost of [his or 13 descriptions at Exhibit 3 at her] optional benefits or page HNCA000916 and at receive in cash.") 14 Exhibit 4 at page 15 HNCA000755) (describing the The Plan SPD only states term "employer" in the Health that HNCA "strives to 16 Plan as the party that pays the provide associates with a cash for waived medical competitive benefits program 17 benefits as Defendant says: that is part of [its] total "You will see the terms 'Health remuneration plan." Colia 18 Net' and 'the Company' used Dec, 115, Ex. J, Pg. l,at 19 throughout this SPD to refer to HNCA000916, Ex. K, Pg. 1 Health Net, Inc. and all at HNCA000754. 20 participating companies. The Addifionally, the purported term 'Employer' is used in this fact is immaterial. That the 21 SPD to refer to the company Plan is part of HNCA's total which is your direct remuneration package has no 22 employer.") bearing on the claims at issue 23 in this Mofion. The parties (See also PMK 61:10-18, agree that one exception to 24 Exhibit 5) (cash payments for general rule that all waiving benefits are directly remuneration paid to 25 deposited into Plaintiffs bank employees should be account in wage statement of included in the regular rate is 26 taxed wages by Defendant the Benefit-Plan 27 directly to Plaintiff) Contributions Exception, found at 29 U.S.C. secfion 28 4130-5040-0790.1 8- REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 207(e)(4). 2 Nowhere does the Plan SPD describe the term "employer" 3 as the party that directly pays 4 the cash benefits to employees who waive 5 medical benefits as Plaintiffs contend. Rather, the Plan 6 SPD simply defines "employer" as the company 7 who is the employee's direct 8 employer and is participating in HNI's Plan. Colia Dec, H 9 5, Ex. J, Pg. l,at HNCA000916, Ex. K, Pg. 1 10 at HNCA000754. This is corroborated by the Plan 11 document itself which 12 defined "employer" as an entity who elects to .13 participate in HNI's Plan. Colia Dec, H 2, Ex. A, Pg. 3 14 atHNCA001008 15 ("'Employer' shall mean [HNI], each Affiliate of 16 [HNI] that is designated by [HNI] as an Employer under 17 the Plan, and any other entity which elects with the consent 18 of [HNI] or [HNI's] delegate 19 to participate in the Plan.") 20 Further, the tax implications are also imiriaterial. All Flex 21 Dollars, including cash 22 benefits, all of which are Plan benefits (not cash-in- 23 lieu of benefits), come from HNCA's contributions to an 24 accoimt maintained and controlled by HNI. Colia 25 Dec, 4, 11. 26 That cash benefits are 27 deposited into Plaintiffs' bank account is similarly 28 immaterial. In fact, cash 4130-5040-0790.1 9- REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 benefits are deposited into Plaintiffs' bank accounts by 2 HNI, who oversees and administers payroll for 3 HNCA. Sarabia Dec, f 1. 4 How one receives benefits from the Plan is completely 5 irrelevant to whether the Benefit-Plan Contributions 6 Exception applies. 7 Plaintiffs reference the 8 deposition testimony of Diane Rodes in their effort to 9 manufacture a triable issue. Bhowmik Dec, H 6, Ex. 5, 10 Rodes Dep., 61:10-18. 11 However, Ms. Rodes was not designated as the PMK 12 regEirding the mechemics of the Plan and how the Plan 13 worked. Long Dec, ^ 7, Ex. C. In fact, Plaintiffs never 14 even sought to depose a Plan 15 PMK who could testify as to the mechanics of the Plan. 16 Id. 17 That HNCA appears on the wage statement is also 18 immaterial. Labor Code 19 section 226 requires employers to provide 20 employees with accurate itemized statement showing 21 nine critical payroll elements. Lab. Code § 22 226(a). One of the required 23 items is the name of the legal entity that is the employer. 24 Id. at § 226(a)(8). HNCA's corripliance with the Labor 25 Code in this regard does not 26 equate to any suggestion that the cash benefits in fact did 27 not come from HNI as the Plan administrator. 28 4130-5040-0790.1 10 REPLY TO AMENDED RESPONSIVE SEPARATE STATEMENT OF DISPUTED MATERIAL FACTS TO DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S MOTION FOR SUMMARY ADJUDICATION 1 6. HNI treated HNCA as 6. Disputed and objection 6. Undisputed. a third party for as vague and ambiguous as to 2. purposes of the term "administering the Plaintiffs did not dispute this administering the plan plan." fact in their original separate 3 and vice versa. statement in opposition to 4 Defendant paid cash payments HNCA's Mofion. They Colia Dec, ^ 4. for employees who opted out of should not be permitted to 5 receiving medical benefits. To rewrite and contradict what the extent Defendant refers to they previously conceded. 6 "administering the plan" as Long Dec, T| 3, Ex. A. including paying cash in lieu of 7 benefit payments, then the fact Plainfiffs' response also does 8 is DISPUTED because the plan not contradict UF 6. documents do not say that the 9 cash is paid by a third party First, the term and, to the contrary, the plan "administering" is not vague, 10 documents say that Defendant considering the declarations as the employer is a first party and the Plan documents. 11 not a third party who is making the payments directly to Second, this fact is supported 12 Plainfiff by the declaration of Debbie 13 Colia and Plainfiffs fail to See the summary plan reference supporting 14 descriptions at Exhibit 3 at evidence that contradicts the page HNCA000916 and at undisputed material fact - 15 their allegedly supporting Exhibit 4 at page HNCA000755 state that "You evidence also does not say 16 will see the terms 'Health Net' what they contend it does. 17 and 'the Company' used throughout this SPD to refer to Nowhere does the Plan SPD 18 Health Net, Inc. and all describe the term "employer" participating companies. The as the party that directly pays 19 the cash benefits to term 'Employer' is used in this SPD to refer to the company employees who waive 20 which is your direct employer." medical benefits as Plaintiffs 21 contend. Rather, the Plan (See Summary Plan at Exhibit 3 SPD simply defines 22 at page HNCA000921 and at "employer" as the company Exhibit 4 at page who is the employee's direct 23 EINCA000764)("To help you employer and is participating 24 pay for the cost of your benefits in HNI's Plan. Colia Dec, H