Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417) MHLED ^
nhbrton@orrick.com ENDORSED
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacraniento, CA 95814-4497 DEC 2 1 2018
Telephbhe: +1 916 447 8299 1
5 Facsimile: +1 916 329 4900 By I.FIflPr
Deputy Clerk
6 Attomeys for Defendant'
HEALTH NET OF CALIFORNIA, INC.
, 7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persons CU-OE-GDS
11 similarly situated,
Plaintiff,
12 NOTICE OF MOTION AND MOTION
AS TO WHY ARANA'S CASE SHOULD
v. NOT PROCEED AS A PAGA
13
HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION
14 California Corporation; and Does 1 through Date: April 11,2019
50, inclusive, Time: 10:00 a.m.
15 Dept: 35
Defendants. Judge: Hon. Alan G. Perkins
16
Complaint Filed: April 5, 2017
. 17 FAC Filed: June 29,2017
18
TOMAS R. ARANA, on behalf of himself, all
others similarly situated. Complaint Filed: August 1,2017
19 Consolidated Complaint Filed: Dec. 21, 2017
20 Plaintiff,
21
22 HEALTH NET OF CALIFORNIA, INC., a
Caiifomia corporation; and DOES 1-50,
inclusive.
< 23
24 Defendant.
25
ocn 26
27
o 28
NOTICE OF MOTION AND MOTION
. AS.TO.WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE that on April 11,2019, at 10:00 a.m. or soon thereafter as may
3 be heard in Department 35 of the Superior Court of the State of Caiifomia, County of
4 Sacramento, Defendant Health Net of Caiifomia, Inc. ("HNCA") wall and hereby does move the
5 Court for an order determining that Plaintiff Tomas Arana's case may not proceed as a
6 representative action under the Private Attorneys' General Act (the "PAGA").
7 HNCA seeks an order from the Court determining that Arana's case may not proceed as a
8 PAGA representative action on the following bases. Arana's written notice tb the Labor and
9 Workforce Development Agency ("LWDA") gave notice of the following claims against HNCA:
10 (1) HNCA's rounding policies resulted in employees' time being inaccurately recorded and, as a
11 result, inaccurately paid (2) HNCA improperly classified certain employees as being exempt from
12 overtime; (3) HNCA incorrectly calculated employees' regular rate of pay by failing to include
13 non-discretionary bonuses and "other remuneration" in that rate; (4) HNCA knew or should have
14 known that employees were working off the clock and were not being compensated for that time;
15 (5) HNCA violated the Labor Code's requirement to provide meal breaks, and (6) HNCA violated
16 , the Labor Code's requirements to provide rest breaks.
17 The Court's order granting summary adjudication in HNCA's favor disposed of Arana's
18 rounding claim. Arana has stipulated that he is not pursuing a misclassification claim on a class
19 or representative basis. Arana has fiirther stipulated that he is not pursuing a rejgular rate claim on
20 his ovm behalf or on a representative basis. The remaining three claims—meal period, rest
21 period, and off-the-clock claims—apply only to non-exempt employees, as the result of Arana's
22 stipulation that he is not pursuing PAGA or class clainis based on the theory that he, or anyone
23 else, was improperly classified as an exempt employee. Arana's meal period, rest period, and off-
24 the-clock claims for non-exempt employees are time-barred because the PAGA has a one-year
25 statute of limitations and while Arana at one time he held a nbn-exempt position at HNCA, it was
26 more than one year before he filed his Written Notice with the LWDA. Thus, Arana lacks
27 standing to pursue these claims on behalf of the allegedly aggrieved employees.
28 Finally, even if these three claims were not time-barred, they cannot proceed on a
-2-
NOTICE OF MOTION AND MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 representative basis. Not only is the proof necessary for Arana to present these claims not
2 uniform, but these claims involve the resolution of complex factual issues and pose serious
3 management problems for the court.
4 Arana therefore cannot pursue any of the claims included in his written notice to the
5 LWDA and the Court should decline Arana's request to proceed with representative claims under
6 the PAGA in this case.
7
The Motion as to Why Arana's Case Should Not Proceed as a PAGA Representative
8
Action is based on this Notice of Motion and Motion; the accompanying Memorandum of Points
9
and Authorities in support of the motion; the Declaration of Timothy J. Long and all attachments
10
thereto; the Declaration of Diane C. Rodes and all attachments thereto; the Declaration bf Juliet
11
Grimson and all attachments thereto; the Compendium of Witness Declarations in Support of
12
Defendant Health Net of California's Motions as to Why Plaintiffs' Cases Should Not Proceed as
13
PAGA Representative Actions, which attaches the declarations of 46 HNCA employees; the
14
Summary of Evidence in support ofthe motion; as well as the pleadings, records and files in this
15
case, and upon any further oral and documentary evidence that may be presented at or before
16
hearing on this matter.
17
Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits
18
of this miatter by 2:00 p.m., the court day before the hearing. The complete text of the
19
tentative rulings for the department may be downloaded off the court's website. If the party
20
does not have online access, they may call the dedicated phone number for the department
21
as referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m.
22
on the court day before the hearing and receive the tentative ruling. If you do not call the
23
court and the opposing party by 4:00 p.m. the court day before the hearing, no hearing will
24.
be held.
25
26
27
28
-3
NOTICE OF MOTION AND MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1
Dated: December 21, 2018 ORRIQK, HERRINGTON & SUTCLIFFE LLP
2
3
4 NICHOLAS J. HORTON
Attomeys for Defendant
5 HEALTH NET OF CALIFORNIA, INC.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4
NOTICE OF MOTION AND MOTION
AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) MHLED ^ nhbrton@orrick.com ENDORSED 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacraniento, CA 95814-4497 DEC 2 1 2018 Telephbhe: +1 916 447 8299 1 5 Facsimile: +1 916 329 4900 By I.FIflPr Deputy Clerk 6 Attomeys for Defendant' HEALTH NET OF CALIFORNIA, INC. , 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persons CU-OE-GDS 11 similarly situated, Plaintiff, 12 NOTICE OF MOTION AND MOTION AS TO WHY ARANA'S CASE SHOULD v. NOT PROCEED AS A PAGA 13 HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION 14 California Corporation; and Does 1 through Date: April 11,2019 50, inclusive, Time: 10:00 a.m. 15 Dept: 35 Defendants. Judge: Hon. Alan G. Perkins 16 Complaint Filed: April 5, 2017 . 17 FAC Filed: June 29,2017 18 TOMAS R. ARANA, on behalf of himself, all others similarly situated. Complaint Filed: August 1,2017 19 Consolidated Complaint Filed: Dec. 21, 2017 20 Plaintiff, 21 22 HEALTH NET OF CALIFORNIA, INC., a Caiifomia corporation; and DOES 1-50, inclusive. < 23 24 Defendant. 25 ocn 26 27 o 28 NOTICE OF MOTION AND MOTION . AS.TO.WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on April 11,2019, at 10:00 a.m. or soon thereafter as may 3 be heard in Department 35 of the Superior Court of the State of Caiifomia, County of 4 Sacramento, Defendant Health Net of Caiifomia, Inc. ("HNCA") wall and hereby does move the 5 Court for an order determining that Plaintiff Tomas Arana's case may not proceed as a 6 representative action under the Private Attorneys' General Act (the "PAGA"). 7 HNCA seeks an order from the Court determining that Arana's case may not proceed as a 8 PAGA representative action on the following bases. Arana's written notice tb the Labor and 9 Workforce Development Agency ("LWDA") gave notice of the following claims against HNCA: 10 (1) HNCA's rounding policies resulted in employees' time being inaccurately recorded and, as a 11 result, inaccurately paid (2) HNCA improperly classified certain employees as being exempt from 12 overtime; (3) HNCA incorrectly calculated employees' regular rate of pay by failing to include 13 non-discretionary bonuses and "other remuneration" in that rate; (4) HNCA knew or should have 14 known that employees were working off the clock and were not being compensated for that time; 15 (5) HNCA violated the Labor Code's requirement to provide meal breaks, and (6) HNCA violated 16 , the Labor Code's requirements to provide rest breaks. 17 The Court's order granting summary adjudication in HNCA's favor disposed of Arana's 18 rounding claim. Arana has stipulated that he is not pursuing a misclassification claim on a class 19 or representative basis. Arana has fiirther stipulated that he is not pursuing a rejgular rate claim on 20 his ovm behalf or on a representative basis. The remaining three claims—meal period, rest 21 period, and off-the-clock claims—apply only to non-exempt employees, as the result of Arana's 22 stipulation that he is not pursuing PAGA or class clainis based on the theory that he, or anyone 23 else, was improperly classified as an exempt employee. Arana's meal period, rest period, and off- 24 the-clock claims for non-exempt employees are time-barred because the PAGA has a one-year 25 statute of limitations and while Arana at one time he held a nbn-exempt position at HNCA, it was 26 more than one year before he filed his Written Notice with the LWDA. Thus, Arana lacks 27 standing to pursue these claims on behalf of the allegedly aggrieved employees. 28 Finally, even if these three claims were not time-barred, they cannot proceed on a -2- NOTICE OF MOTION AND MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 representative basis. Not only is the proof necessary for Arana to present these claims not 2 uniform, but these claims involve the resolution of complex factual issues and pose serious 3 management problems for the court. 4 Arana therefore cannot pursue any of the claims included in his written notice to the 5 LWDA and the Court should decline Arana's request to proceed with representative claims under 6 the PAGA in this case. 7 The Motion as to Why Arana's Case Should Not Proceed as a PAGA Representative 8 Action is based on this Notice of Motion and Motion; the accompanying Memorandum of Points 9 and Authorities in support of the motion; the Declaration of Timothy J. Long and all attachments 10 thereto; the Declaration of Diane C. Rodes and all attachments thereto; the Declaration bf Juliet 11 Grimson and all attachments thereto; the Compendium of Witness Declarations in Support of 12 Defendant Health Net of California's Motions as to Why Plaintiffs' Cases Should Not Proceed as 13 PAGA Representative Actions, which attaches the declarations of 46 HNCA employees; the 14 Summary of Evidence in support ofthe motion; as well as the pleadings, records and files in this 15 case, and upon any further oral and documentary evidence that may be presented at or before 16 hearing on this matter. 17 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits 18 of this miatter by 2:00 p.m., the court day before the hearing. The complete text of the 19 tentative rulings for the department may be downloaded off the court's website. If the party 20 does not have online access, they may call the dedicated phone number for the department 21 as referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. 22 on the court day before the hearing and receive the tentative ruling. If you do not call the 23 court and the opposing party by 4:00 p.m. the court day before the hearing, no hearing will 24. be held. 25 26 27 28 -3 NOTICE OF MOTION AND MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 Dated: December 21, 2018 ORRIQK, HERRINGTON & SUTCLIFFE LLP 2 3 4 NICHOLAS J. HORTON Attomeys for Defendant 5 HEALTH NET OF CALIFORNIA, INC. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4 NOTICE OF MOTION AND MOTION AS TO WHY ARANA'S CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION