Motion for Renewal of Judgment in Andrea Spears vs. Health Net of California Inc| Trellis.Law

On April 05, 2017 a Exhibit,Appendix was filed involving a dispute between All Others Similarly Situated, Arana, Tomas R., On Behalf Of Herself And On Behalf Of All Persons Similarly Situated, Spears, Andrea, and Does 1-50, Health Net Of California Inc, for (Other Employment Complaint Case) in the District Court of Sacramento County.

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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tilona(a)orrick.coin I
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com ! FILED/ENDORSED
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall. Suite 3000 i NOV 1 9 2018
4 Sacramento, CA 95814-4497
Telephone: +1916 447 9200 !
Facsimile: +1 916 329 4900 i By:. A. Macias
5 Deputy Clerk
!
6 Attorneys 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 behajf Consolidated Case No. 34-2017-00210560-
1I of herself and on behalf of all persons similarly CU-OE-GDS
situated,
12 Plaintiff, DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S COMPENDIUM
13 V. OF EVIDENCE IN SUPPORT OF ITS
RENEWED MOTION FOR SUMMARY
14 HEALTH NET OF CALIFORNIA, INC., a ADJUDICATION
California Corporation; and Does I through 50,
15 inclusive, Date: February 4, 2019
Time: 9:00 a.m.
16 Defendants. Dept.: 54
Reservation No.: 2380178
17
Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all
18 FAC Filed: June 29, 2017
others similarly situated, '
Consolidated Complaint Filed: Dec. 21, 20l7
19 Plaintiff,
Complaint Filed: August 1,2017
20
V.

21 HEALTH OF CALIFORNIA, INC., a
California corporation; and DOES 1-50,
22
inclusive,
23
Defendant.
24
25
26
27
28
DKI-ENDANT OF HEALTH NIHT OF CALIFORNIA, INC.'S COMPENDIUM OF EVIDENCE IN SUPPORT OF ITS RENEWED
MOTION FOR SUMMARY AD.IUDICATION
Pursuant to California Rule of Court 3.1350(g), Defendant Health Net of California. Inc.

2 C'HNCA") submits the following evidence in support of its Motion for Summary Adjudication:

3 Evidence Tab
]
4 Declaration of Nicholas J. Horton in Support of Defendant HNCA's
Renewed Motion for Summary Adjudication 1
5
Exhibit A - Copy of Plaintiff Spears's Responsive Separate Statement of
6 Disputed Material Facts and Additional Facts in Opposition to
Defendant's Motion for Summary |judgment, or in the Alternative,
7 Summary Adjudication, filed April I I , 2018

8 Exhibit B - Copy of the Court's Minute Order dated May 30, 2018

9 Exhibit C - Copy Plaintiff Spears's Amended Responsive Separate
Statement of Disputed Material Facts and Additional Facts in Opposition
10 to Defendant's Motion for Summary Judgment, or in the Alternative,
Summary Adjudication, filed August 23, 2018
II
Exhibit D - Copy ofthe Court's Minute Order dated October 23, 2018
12
Declaration of Diane C. Rodes in Support of Defendant HNCA's Renewed
13 Motion for Summary Adjudication '

14 Exhibit A - Copy of an exemplar SPOT Cash Awards policy in effect in
2015
15 i
Exhibit B - Copy of exemplar SPOT Nomination Form in effect in 2015
16 I
Exhibit C - Copies of Plaintiff Arana's July 5, 2015; October 25, 2013
17 and June 5, 2015 wage statements reflecting SPOT bonus payments

18 Exhibit D - Copy of ACA Incentive Plan and corresponding amendments

19 Exhibit E-Copies of Plaintiff Arana's March 14, 2014; May 23, 2014
and June 20, 2014 wage statements reflecting incentive pay received
20 pursuant to ACA Incentive Plan '

21 Exhibit F - Copy of Plaintiff Andrea Spears' July 2, 2015 wage statement,
which covered the payroll period June 13, 2015 to June 26, 2015
22
Exhibit G - Copy of Copy of Plaintiff Tomas Arana's July 2, 2015 wage
23 statement, which covered the payroll period June 13, 2015 to June 26,
2015
24
Exhibit H - Copy of exemplar We Iness Incentive Program in effect in
25 2015.

26 Exhibit 1 - Copy of Plaintiff Tomas Arana's wage statements reflecting
Wellness Incentive Program payments.
27
28
-I-
DEFENDANT OF HEALTH NET OF CALIFORNIA, INC.'S COMPENDIUM OF EVIDENCE IN SUPPORT OF ITS RENEWED
MOTION FOR SUMMARY AD.IUDICATION
Declaration of Debbie Colia in Support of Defendant HNCA's Renewed Motion
for Summary Adjudication 1
2
Exhib t A - Copy of "Health Net, Inc. Associates Benefit Program"
3
Exhib t B - Copy of 2005 Amendment to "Health Net, Inc. Associates
4 Benefit Program"

5 Exhib t C - Copy of 2006 Amendment to "Health Net, Inc. Associates
Benefit Program"
6
Exhib t D - Copy of 2007 Amendment to "Health Net, Inc. Associates
7 Benefit Program"

8 Exhib t E - Copy of 2008 Amendment to "Health Net, Inc. Associates
Benefit Program"
9
Exhib t F - Copy of 2010 Amendment to "Health Net, Inc. Associates
10 Benefit Program"

II Exhib t G - Copy of 2011 Amendment to "Health Net, Inc. Associates
Benefit Program"
12
Exhib t H - Copy of 2012 Amendment to "Health Net, Inc. Associates
13 Benefit Program"

14 Exhib t 1 - Copy of 2015 Amendment to "Health Net, Inc. Associates
Benefit Program"
15
Exhib t J - Copy of Summary Plan Descriptions in effect from 201 I
16 throug h20l5

17 Exhib t K - Copy of Summary Plan Descriptions in effect in 2016
i

18 Exhib t L -Copy of an exemplar Evidence of Coverage document in effect
in 2015
19
Declaration of Kelly Sarabia in Support of Defendant HNCA's Renewed Motion
20 for Summary Adjudication '

21
22 Dated: November 19, 2018 ORRICK, HERRINGTON & SUTCLIFFE LLP

23
24 By:
NICHOLAS J. HORTON
25 Attorneys for Defendant
HEALTH NET OF CALIFORNIA, INC.
26
27
28
DEFENDANT OF HEAL TH NET OF CALIFORNIA. INC.'S COMPENDIUM OF EVIDENCE IN SUPPORT OF ITS MOTION FOR
SUMMARY AaiUDICATION
I TIMOTHY J. LONG (STATE BAR NO. 13;7591)
tilong(a)orrick.com j
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton(g),orrick.com
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 9200
5 Facsimile: +1916 329 4900

6 Attorneys 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 similarly CU-OE-GDS
11 situated, !
Plaintiff, DECLARATION OF NICHOLAS J .
12 HORTON IN SUPPORT OF
V. DEFENDANT HEALTH NET OF
13 CALIFORNIA, INC.'S RENEWED
HEALTH NET OF CALIFORNIA, INC., a MOTION FOR SUMMARY
14 California Corporation; and Does 1 through 50, ADJUDICATION
inclusive.
15 Date: February 4, 2019
Defendants. Time: 9:00 a.m.
16 Dept.: 54
Reservation No.: 2380178
17
Complaint Filed: April 5, 2017
18 FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
19
Complaint Filed: August 1,2017
TOMAS R. ARANA, on behalf of himself, all
20 others similarly situated,
21
Plaintiff,
22
V.

23
HEALTH NET OF CALIFORNIA, INC., a
24 California corporation; and DOES 1-50,
inclusive,
25 I
Defendant.
26
27
28
DECLARATION OF NICHOLAS J, HORTON IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA. INC. S RENEWED
MOTION F O R ' S U M M A R Y AD.IUDICATION
1 I, Nicholas J. Horton, declare:

2 1. I am an attorney with the law firm Orrick. Herrington and Sutcliffe, LLP at 400

3 Capitol Mall, Sacramento, California and represent Defendant Health Net of California, Inc.

4 ("HNCA") in this matter. All of the information contained in this declaration is based upon my

5 personal knowledge or, where context indicates, review of the records described herein. If called

6 and sworn as a witness, I could and would competently testify to the matters in this declaration.

7 2. As part of their third cause of action for Failure to Pay Hourly Wages, Plaintiffs

8 allege that HNCA failed to pay them for all overtime hours worked. Namely, Plaintiffs contend

9 that HNCA "violated the[ir] rights . . . by failing to pay them overtime wages for all overtime hours

10 worked . . . as a result of not correctly calculating their regular rate of pay to include all applicable

I 1 remuneration, including, but not limited to, j non-discretionary bonuses," as stated in Paragraph 41

12 of the Consolidated Compliant.

13 3. While this cause of action vaguely asserts that there are forms of "applicable

14 remuneration" that were not included in Plaintiffs regular rate, the Consolidated Complaint makes

15 clear that, at least, bonuses and shift differential pay were at issue for their overtime claims. Further,

16 since Spears had conducted discovery related to Flex Dollars received by her as a result of waiving
i

17 medical coverage, HNCA believed Plaintiffs would assert that Flex Dollars were an "applicable

18 remuneration" required to be included in their regular rate as part of the Third Cause of Action's

19 regular rate claims.

20 4. On February 5, 2018, HNCA filed a Motion for Summary Adjudication in

21 Department 54 of this Court, seeking summary adjudication on the following issues, as reflected in

22 the Notice of Motion and Motion for Summary Adjudication:
23 The Third Cause of Action for Failure to Pay Hourly and Overtime Wages:

24 Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's
alleged failure to include cash beneflts received in lieu of medical payment in
25 Plaintiff Spears' regular rate of pay for purposes of computing overtime pay fails
because cash benefits received by Plaintiff Spears as a result of her waiver of
26 medical coverage were properly excluded from her regular rate calculation under
the Benefit-Plan Contributions Exception.
27 I
Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's
28 alleged failure to include bonuses awarded to Plaintiffs in the regular rate of pay
DECLARATION OF NICHOLAS J. HORTON IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORN IA, INC.'S RENEWED
MOTION F O R I S U M M A R Y AD.IUDICATION
calculation fails because Plaintiff Spears did not receive a single bonus payment
and HNCA appropriately allocated bonus payments in determining the regular rate
2 for Plaintiff Arana.
Plaintiffs' Failure to Pay 0|Vertime Wages claim premised on HNCA's
3 alleged failure to include shift differential premiums in Plaintiff Arana's regular
rate of pay fails because all shift difl|erentiai premiums received by Plaintiff Arana
4 were included in his regular rate calculation.

5 Plaintiffs" Failure to Pay Hourly Wages claim premised on HNCA's alleged
rounding practice fails because HNCjA did not utilize any rounding practice and its
6 timekeeping system paid Plaintiffs based the exact in (start) and out (stop) times
Plaintiffs reported.
7
The Seventh Cause of Action for Civil Penalties Pursuant to Labor Code
§§ 2698, e/.ye<:/. (PAGA): |

9 Plaintiffs' claim for PAGAj penalties based on alleged failure to pay
overtime wages as a result of alleged failure to include cash benefits received in
10 lieu of medical payment in Plaintiff Spears' regular rate of pay fails because cash
benefits received by Plaintiff Spearsjas a result of her waiver of medical coverage
11 were properly excluded from her regular rate calculation under the Benefit-Plan
Contributions Exception.
12
Plaintiffs' claim for PAGA penalties based on alleged failure to pay
13 overtime wages as a result of alleged failure to include bonuses awarded to
Plaintiffs in the regular rate of pay calculation fails because Plaintiff Spears did not
14 receive a single bonus payment and FINCA appropriately allocated bonus payments
in determining the regular rate for Plaintiff Arana.
15
Plaintiffs' claim for PAGA penalties based on HNCA's alleged failure to
16 pay overtime wages as a result ofj alleged failure to include shift differential
premiums in Plaintiff Arana's regular rate of pay fails because all shift differential
17 premiums received by Plaintiff Arana were included in his regular rate calculation.

Plaintiffs' claim for PAGA penalties based on alleged failure to pay all
wages as a result of alleged rounding practice is appropriate because HNCA did not
19 utilized any rounding practice during the pertinent time period, and Plaintiffs'
PAGA claim based thereon cannot [proceed where the underlying Labor Code
20 violation fails.
21 5. The motion was straightforward and supported by sufficient evidence as shown by

22 the lack of material disputed facts in Plaintiff Spears's original Responsive Separate Statement filed
!
23 on April 11, 2018, a true and correct copy of which is attached as Exhibit A. Specifically, Spears
j
24 did not dispute that HNCA paid the actual cost of benefits under the plan (UF 7), that these monies

25 were deposited into an account maintained and controlled by the third party Health Net, Inc.

26 ("HNI") as the plan sponsor (UF 8), and thatlthese contributions were irrevocable (UF 9). Indeed,

27 the only "disputes" that Spears raised to the cash benefits were irrelevant. See UF 18, 21

28
-2-
DECLARA TION OF NICHOLAS .1 HORTON IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA. INC 'S RENEWED
MO TION FOR SUMMARY AD.IUD1CATI0N
1 (attempting to create triable issues of fact based on solely on the pay code description and tax

2 treatment of the Flex Dollars).

3 6. Plaintiff Spears also spuriously disputed the undisputed fact that she did not receive

4 any bonus payments by contending that the cash benefit provide by the Plan was a bonus. UF 23.

5 However, she did not dispute Plaintiff Arana's bonus payments. Ex. A, UF 24-40. Quite notably,

6 Plaintiff Arana did not oppose the motion at all despite being the only Plaintiff to have received

7 any payments HNCA considered to be a bonus.

8 7. However, Plaintiff Spears [requested additional the opportunity to complete

9 additional discovery as to Undisputed Fact'Nos. 14, 15, and 19, which she contended would be

10 resolved by the production of documents that were subject to pending motion to compel. See Ex.

11 A, UF 14, 15, and 19. These facts related to the amount of Flex Dollars paid towards elected

12 benefits coverage versus the amount of Flex Dollars paid as cash benefits.

13 8. On May 30, 2018, the Courit continued the hearing to allow Plaintiff Spears the

14 opportunity her resolve her pending motion to compel and complete discovery as it related to UF

15 14, 15 and 19. In the event that the Court granted the pending motion to compel (which it did), the
i

16 order also permitted Amended Opposition jand Reply Briefing. A true and correct copy of the

17 Court's May 30, 2018 Minute Order is attached hereto as Exhibit B.

18 9. Spears completed the requested discovery and filed an Amended Opposition along

19 with supporting documents on August 23,j 2018. However, Spears completely repackaged her

20 entire Opposition without any attempt to uselany evidence gleaned through the additional discovery
I

21 she sought. As her Amended Responsive Separate Statement of Undisputed Facts shows, she now

22 disputed a litany of UFs that were previously undisputed on the exact same state of the evidence.

23 Simply put, Spears did not use her requested continuance to complete the discovery she deemed

24 necessary to oppose HNCA's motion. Instead, she used those months to fabricate disputes that did

25 not previously exist. A true and correct copy of Plaintiff Spears's Amended Responsive Separate

26 Statement of Undisputed Facts is attached as Exhibit C.

27 10. Most notably, Plaintiff Arana still did not oppose the motion and never joined

28 Plaintiff Spears's opposition, nor did he join her amended opposition, despite her new assertion
- 3-
DECLARATION OF NICHOLAS .L HOR TON IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA. INC 'S RENEWED
MOTION FOR SUMMARY AD.IUDICATION
that payments he received under a Wellness Incentive Program should be considered a "non-

T. discretionary bonus" and included in the regular rate for purposes of defeating HNCA's motion.

•••3,. Compare Ex. A, UF 24, with Exhibit C, UF 24.
•-.4' 11 . On October 23, 2018, the Court entered an order denying HNCA's motion with

5 respect-to the cash benefits claim and the "bjonus" claims on the grounds raised for the first time in

•^6 . Spears's Amended Opposition papers, despjite Plaintiff Arana's lack of opposition to the motion.

•1 A true and correct copy of the Court's October 23, 2018 Minute Order is attached as Exhibit D.

8 12. Given that the Court found that HNCA did not meet its burden of production based

•9' on evidence and supporting facts that Plaintiffs initially did not dispute, and given that Plaintiff
10 Spears'srepackageddisputes raised concerns with the Court as to the definition of terms used in

11
' • 1 '
HNCA's evidence and supporting facts (again, terms that were not initially in dispute), HNCA

•12' preseiits these issues to the Court with tie additional facts and evidence it determined were

13 necessary, so that a ruling on the merits of these issues can be reached.

14 . I declare under penalty of perjury unLer the laws of the State of California and these United

15 States'that the foregoing is true and correct.

1.6 Executed'this 19 day of November, 2018 in Sacramento, Califomia.

20
NICHOLAS J. HORTON
.21
22

24:

28
•4-
DECLARATION OF NICHOLAS J. HORTON IN SUPPORT OF DEFENDANT HEALTH NET OF CALIFORNIA, INC 'S RENEWED
MOTION FOR SUMMARY ADJUDICATION
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NORDREHAUG BHOWMIK DE BLOUW LLP
ENDGRScD
V BLUMENTHAL
NbnnanvBlumerithaTtSBN 068687) 2010 APR II PH 1:1.0
Kyle R. Nbrdrehaug (SBN 205975)
:Aparajit Bhowrnik-(SBN 248066) surTRio? COURT or f;.\L!r;:;RNi
,3V Piya^Mukheijee'(SDN 274217) ecu.S' f V 0 5 A Cii A i-; £ K ;• J
JeffreyJS. ;Hermah (SBN'280058)
'225;5vCaiie Clara: -
^La Jblla, Califoniia 92037
'telephone:' (858) 551-1223
•, ' .T Facsimile: (858) 551-1232
6
Attorneys for Plaintiff
7

.8
.9
SUPERIOR COURT OF THE STATE OF CALIFORNL\
la
COUNTY OF SACRAMENTO
11

12
ANDREA SPEARS;-an.individual. on behalf of Case No. 34-2017-00210560-CU-OE-GDS
13 lieiseif knd ori hiehaif of ail pei^ons sirm situated,
CLASS ACTION
,14 PlaintiflF,
PLAINTIFFS RESPONSIVE SEPARATE
15 vs. STATEMENtsOF DISPUTED MATERLML
FACTS X N D ADDITIONAL F^ IN
16 i^EALTH NCT OF CALn-pRNL^ a Califomia OPPOSrilONiTQ DEFENDANT'S MOTION
Corporation; and Does 1 through 50, Inclusive, FOR SUMMARIi' JUDGMENT OR, IN THE
'7 ALTERNATIVE, SUMMARY
Defendants. ADJUDICATION
18 /
Reservation No. 2313007
19;
TOMAS-R. A R A N A , on behalf of himself, all others Hearing Date: April 26, 2018
20 similarly^situated,
Hearing Time: 9:00 a.m.
-21 Plaintiflf, Judge: Hon. Steven H. Rodda
Dept.: 54
22 vs.
I
Action Filed: April 5,2017
H^AETH l ^ T O F C>^I^ INC., a Califomia
cbrp^pratibh; and DOES 1 through 50, inclusive.
24°

25.
Defendants.
;26

27V
28^
PLAINTIFF'S RESPPNSIVE SEPARATE STATEMENT OF DISPUTED t4ATER]AL FACTS AND ADDITIONAL
FACTS TN OPPOSitfON TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OR, IN THE
ALTERNAtivE, SLIMMARY ADJUDICATION
4386M36V.3

EXHIBIT A
•1 .• Pursuant to Code of Civil Procedm^ Section |137c(b) and Califbmia Rule of Court 3.1350(d), Plaintiff

heretys submit her Responsive Separate Statement Of Dispute Material Facts hi Opposition to Defendant's

iWiotiph For Siuiiniary Ju^ Alternatively, Summary Adjudication:

'Sr.: FOR FAILURE TO PAY HOURLY WAGES AND TAILURE
h:^'•;•^TO'I*>^Y^

issue •l: ;piaintif^^ Wages clajm premised: on HNCA's alleged failure to
ifncliide cash; benefits received in lieu of miel^dicai payment In Plaintiff Spears' regular rate of pay fails
becauseiCas properly excluded from her regular rate calculation 'under tK^ Benefit-Plan
ConfributidiisE
^/vt-.'•^;v.8
. v-Defein'dbiittS^Uh'^ .' itiffs' Respdnse & ,Supporting'Eyidence/vv^^^
.Evidence K' > .t •
' • V. ^ plaintiff Spears seiryed as a non-exempt 1. Undisputed.

frbniSept^^^^
".-i ih'Rancho Cordova.
•• F2;
; ';Declaratiipiii of Diane C. Rodes (hereinafter
;':l'RotlesiDec::'')^i3^:;".'; : ^
"•.>:il4-;- ;2.' ' PlaiiitiffiAraiia^ 2. Undisputed.
, ; v/; Rahcho Gdrdbva call center in 2008 and
•;;.Hl;5':.; ;. ; , continues to wbrk^there how. He started
, f' . .as a nbhTexem'pt cijstb^
- • • r/*r\r**'cPT\tQti\/p> f/Sr T-TNIf*^ A u n t i l h i c
'.I:; -1 vplw^ClllaU.VC'iUl XilTi^rV UIllll Ilia
.. . prbmbtiph onj'prabout N
'201;5.-to Gpntac Analyst, an
C/Aciiipi pusiiiun. .oincc June ^ui
plaintiff Artana h^^^^^^ a
CalIGehter;Systems Analyst I, also an
i. exempt position.
; Rodes Dec. 13
3. V XBetWeen J^uary 1,-2001 and December 3.
r .90.16 • H N T ^nnn^orpH a rafpfpria
piiah - a wri^tten Hea
'tt;^;;,-"'-;:-'..;;^23' , Vcalled the "Health Net, Inc. Associates

'i^;;^:'j:;\0'Mf:
. iJeneni rrogram ^ine rian j, wnicn
. HfJCA adopted for the benefit of its
^•:\'' 25'- eniployees.
\ jDeciaration.of Debbie Colia ("Colia Dec"), ^ 2,
.' Exhs: A-I.

I
DEFENDANTS'SEPARATE STATEMENT OF LfNDISPUTED FACTS IN SUPPORT OF MSJ/MSA
:43866436v.3

EXHIBIT A
if ^

;..;}L'.' 4. The Plan was govemed by Section 125 4. Undisputed.
of the Intemal Revenue Code, was
subject to the Employee; Retirement
Income Security Act, and was overseen
by a Benefits Committee.

"Golia'JDec.,113;.
5. ' As called for in the Plan, the Benefits 5. Undisputed.
. Cbmmittecrhad fiduciary duties and
,, • responsibilities to ensure that HNCA's
r..: employer contributions lo the Plan were

• -, . , •'
tracked, kept in a separate account, and
used only fbr'proper Plan purpose
related to the health and welfare benefits
ofHNCA employees, including Plaintiffs
and their cliEipendents.
•10
•Golia.pec.,114.
6: HNI treated HNCA as a third party for 6. Undisputed.
purposes of adhiihistering the plan and
vice versa
13
,ColiaDec.,114: :
14 - 7. • P'ursuant to the terms ofthe Plan, HNCA 7. Undisputed.
' ' paid the actual costs of benefits under the
jS; plan for its eligible emplpyees who
16 ' eleijted tO'participate ("Participants"),
including Plaintiffs, and their dependents.
17
Colia Dec, 14.
18:; /8. Pursuant to a funded arrangement 8. Undisputed.
between HNI and HNCA, HNCA
19: arranged for the monies used to pay the
actual costs pfbenefits to be deposited
20
into an account maintained and
21 controlled by HNI as the Plan's sponsor.

22. -Colia Dec, 14.
9. ' The contributions made by HNCA 9. Undisputed.
23 .. pursuant to the Plan were irrevocable -
once the contributions were made to
24 IWI, HNCA was unable to recapture or
. divert the funds for HNCA's use or
'25'
benefit.
26
Colia Dec, 14.
27 •,: •;rO. The benefits available under the Plan, 10. Undisputed.
incluidihg the various coverage options
28 and corpayments a Participant was

DEFENDANTS'SEPARATE STATEMENT OF llJNDlSPUTED FACTS IN SUPPORT OF MSJ/MSA
43866436V.3

EXHIBIT A
1 responsible for with respect to the Plan's
various covered services and supplies,
2 . were explained in detail to HNCA
employees in Summary Plan
•, 3 • Descriptions (the "Plan SPD") and
4 Evidence of Coverage ("EOC")
documents.
5 .
Colia Dec, H 5-6, Exs. K-L
6 ' 11. Tlie plan provided "core" benefit to 11. Undisputed.
Participants such as basic life and basic
7 AD&D insurance at no cost to the
Participants.
8
.9 Colia Dec.,115-7, Exs. K-L.
12. It alsb prpvided "optional" benefits to 12. Undisputed.
10 Participants and/or their dependents,
such as medical and dental coverage, to
11 • select as desired based on their
particular needs.
12 '
Colia Dec, 1 8. .
13 ' 13. Disputed, the Flex Dolliars paid for
13. To help pay forthe cost of medical and
14 dental coverage and pursuant to the medical and dental coverage were not received
Plan, Participants received "Flex by Participates but were paid to a third party for
15 Dollars:" the elected benefits only and were tax free.

16 Gbha Dec.,19; Rodes Dec.,15. (Colia Decl. para 4)("HN1 treated FINCA as a
third party for purposes of administering the
17 Plan, and vice versa. Pursuant to the terms of the
18 Plan, HNCA paid the actual costs of benefits
under the Plan for its elegible
19 employees.. .pursuant to a funded arrangement
between HNI and HNCA, HNCA arranged for
20 these monies to be deposited into an account
21 maintained and controlled by HNI as the Plan's
sponsor. HNCA's contributions were
22 irrevocable - once niade to HNI, HNCA was
unable to recapture of divert the funds for
23, HNCA's use of benefit").
14. The exact amount of "Flex Dollars" to 14. Disputed as determining what the amount
24 • which a Participant was entitled to "generally" was as to all employees requires the
25 varied depending on the medical and additional discovery sought by Plaintiffs
dental plans that he or she chose, the pending motion to compel the wage records of
26 number of dependents covered and the the class members that would allow Plaintiff to
Participant's geographic location, but verify the amounts of Flex Dollars Defendant
•27 generally, the amount was less than the claims were provided.
28 - total cost of the benefit(s) that a

DEFENDANTS' SEPARATE STATEMENT OF LfNDISPUTED FACTS IN SUPPORT OF MSJ/MSA
43866436V.3

EXHIBIT A
1 participant elected See Plaintiff s Motion to Compel Defendant to
respond to Requests for Production.
Colia Dec, 19; Rodes.Dec.l 6-10, Exs. A, B.
' -'•2,l 5. In a vast majority of cases, the 15. Disputed because in order to cooroborate
Participant was required to contribute corroborating what happened' in the "vast
some amount toward the cost of the majority of cases" requires additional discovery
- 4-.' • benefit(s) he or she selected, and the sought by Plaintiffs pending motion to compel
portion of the benefit coverage was the wage records of the class members that
.•5-: deducted from his or her paycheck. would allow Plaintiff to verify the amounts of
6 Flex Dollars Defendant claims were provided.
Coiia Dec, 1 9. . See Plaintiffs Motion to Compel Defendant to
. 7 respond to Requests for Production.

• ;8 •: 16. Eligible employees under the Plan could 16. Undisputed.
waive bne or more of the available
9- benefits.
10
. Colia Dec.,1 10.
11 17.' Waiver of medical coveriage was only 17. Undisputed.
permitted where the employee had other
12 medical coverage, such as through a
spouse's plan.
13
;ColiaDec.,1 10.
•4
18. in the event that a Participant waived 18. Disputed as incomplete.
.15 m'edicaland/or dental coverage, the Plan
provided that the Participant would When Plaintiff waived coverage. Plaintiff
16 • receive a portion of the Flex Dollars as received cash in lieu of benefits in her paycheck
cash in his or her paycheck. coded as "MedFlxWave," which was an entirely
17 different form of payment than the payments
Colia Dec, 111; Rodes Dec, 1 7. reflected on her paycheck for accepting medical
18
benefits coded on her paycheck as "DenFlxElct"
19 as the payments like "DenFlxElct" were tax free
and provided irrevocably to the trustee or third
20 party. The MedFlxWave payments, on the other
hand, were subject to tax and paid directly to
21 Plaintiff
22 ,
Colia Dec, 111; Rodes Dec, 1 7.
23 . .L9.V In eachof the Plan years 2013, 2014, 19. Disputed because in order to corroborate
2015 and. 2016, the total cash benefits what amounts were paid to all employees in any
24 . provided to Participants who waived given year requires additional discovery sought
.25 dental and/or medical coverage by Plaintiff s pending motion to compel the
represented a very small percentage of wage records of the cla;ss nriembers that would
..26 HNCA's contributions provided under allow Plaintiff to verily the amounts of Flex
the Plan for the elected dental and/or Dollars Defendant claims were provided.
'. '27;.
medical coverage: 1.4% in 2013, 1.3%
in 2014; 0.9% in 2015; and 0.9% in Disputed as irrelevant because these facts

1
DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MSJ/MSA
43866436V.3

EXHIBIT A
2016. relate to whether tax free payments made
irrevolcably to third parties for benefits can be
2, Declaration of Kelly Sarabia("Sarabia Dec"), excluded from the regular rate, which is a
3
112-5. different issue than Defendant's motion asking
for whether taxed cash in lieu benfits can be
4 excluded from the regular rate.

\. • '• 5 20. Throughout Plaintiff Spears 20. Undisputed.
employment with HNCA, she elected
6 dental coverage.
7.
Rodes bec.i116„9, Ex. A.
21. Plaintiff Spears waived medical 21. Disputed as incomplete, as Plaintiff
coverage during her eniployment with Spears received a taxed cash payment of $20 for
9 HNCA, and as a result, received a cash waiving benefits, which is different from the tax-
benefit of $20.00 per pay period free flex dollars provided when employees do
10 pursuant to the Plan. not waive benefits.
11
Rodes Dec.,11 8-9. Ex. A. Exhibit "J" to the Debbie Calia Declaration filed
12 with Defendant's Motion at FfNCA000921
22. During Plaintiff Arana's employment 22. Undisputed.
13 with HNCA, he elected to received both
medical arid dental coverage and thus
14
never received any cash benefits in lieu
15 of coverage.

.16 Rodes Dec, 110, Ex. B.
'Issue 2: Plaintiffs' Failure to Pay Overtime Wages claim premised on HNCA's alleged failure to
17 iiicliide'bonus piayments in the regular rate of pay fails because bonus payments were properly
accounted for in the regular rate calculation
; 18

19 pfifeli^ndaht^^^^ fi?lamfiiisJ^Risi^^
i;Evidfelice>r^i
' f 20
23. At no time during Plaintiff Spears' 23. Disputed. Plaintiff received
'.. • 21 employment with HNCA did she receive "MedFlxWave" payments were taxed and paid
any bonus payments. based on preestablished criteria set forth in
• ' ••• • ^ '^22- Defendant's plan as compensation for Plaintiffs
Rodes D e c l 10 work for Defendant.
" 23.'
'. . ,24 Exhibit "A" to Rodes Declaration at
HNCA000078 shows the MedFlxWave payment
- 25 Plaintiff contends was a bonus payment that
should have been included in the overtime rate.
''.'.26.
'27: Exhibit "J" to the Colia Decl. explains the
preestablished criteria for being paid the
/ • 28 MedFlxWave bonus and at page 1 describes how

DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MSJ/MSA
43866436V.3

EXHIBIT A
the cash payments for waiving benefits are part
of Defendant's compensation program that
2- "strives to provide associates with a competitive
, ; 3, benefits program that is part of our total
remuneration.plan." (Emphasis added)
4 - 24. Throughbut Plaintiff Arana's 24. Undisputed.
etfiployment with HNCA, his bonuses
'5 • . have been limited to only bonuses
through the SPOT Cash Awards
.6
' ' Pi-ogram ("SPOT") and incentive pay
• '7 • • pursuant to the ACA Customer Service
& Clairtis Representative Pay for
X Performance Incentive Plan ("ACA
Incentive Plan").
••:';9^:,
>Rodes Dec.,11,12, 18, 21, Exs. E, G
25 . Beginning January 1, 2014 and 25. Undisputed.
TVy \ . continuing through December 31,2016,
HNCA; adopted SPOT.
'H2 •
;Rodes.bec.,1 13
••13;. 26. Through SPOT, FINCA spontaneously 26. Undisputed.
rewarded certain employees "who
i,4 demonstrate[ d] exceptional behavior on
-15
the job ... whether it [wa]s within or
beyond [the employee's] job scope."
16 ;
Rodes.be.c.,113,Ex.C.
:i7 "27. HNGA's SPOT policy informed eligible 27. Undisputed.
-,. - j ;' employees that bonuses were awarded
18 without any promise or incentive being
armoiiriced beforehand.
19
"Rbdes Dec.,1 13, Ex. C.
-20- '28. There vyere no prerestablished criteria 28. Undisputed.
21 for awarding SPOT bonuses or pre-
established amburits to be awarded.
•22-',
;fRodes:Dec., 11 13-14, Ex. C.
•:2:3'v 29. The decision of when, for what reason, 29. Undisputed.
'24. and in what amount to award a SPOT
bonus - within a range - was subject to
•'-25-'' the discretion of managers and the
ultimate approval of the head of the
26: appropriate Business Unit.
.,2k:; ,Rodes:Dec.,11;13-17, Ex. C, D.
.28: : 30. Each Bijsihess Unit Leader was allotted 30. Undisputed.
an annual SPOT bonus budget that he or

DEFENDANTS' SEPARATE STATEMENT OF UNDISPUTED FACTS IN SUPPORT OF MSJ/MSA
43866436V.3

EXHIBIT A
• 1 she could elect to use in full, in part, or
not at all.
• .2/
Rodes Dec, 11 13, 17, Ex. C.
^;3-.';
31. Procedurally, a SPOT bonus was 31. Undisputed.
•A iriitiated if a manager felt that an
• employee on his or her team sh

Case Info

Judge

David De Alba Track Judge’s New Case

Case No.

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Document Filed Date

November 19, 2018

Case Filing Date

April 05, 2017

County

Parties

all others similarly situated Plaintiff
Arana, Tomas R. Plaintiff
Does 1-50 Defendant
Health Net of California Inc Defendant
Keith A Jacoby Attorney for the Defendant
Norman B Blumenthal Attorney for the Plaintiff
on behalf of herself and on behalf of all persons similarly situated Plaintiff
Setareh, Shaun Assignee
Shaun Setareh Attorney for the Plaintiff
Spears, Andrea Plaintiff
Timothy J Long Attorney for the Defendant
Victoria Rivapalacio Attorneys for Plaintiffs
Chaim Setareh Attorneys for Plaintiffs
William Pao Attorneys for Plaintiffs
Kyle Nordrehaug Attorneys for Plaintiffs
Ruchira Mukherjee Attorneys for Plaintiffs
Nicholas Horton Attorneys for Defendants
Stephanie Lee Attorneys for Defendants
Amanda Fitzgerald Attorneys for Defendants
Jeffrey Herman Attorneys for Plaintiffs
Howard Leviant Attorneys for Plaintiffs
Annie Chen Attorneys for Defendants
Nicholas De Blouw Attorney
Samuel Hyde Attorneys for Defendants
Rowena Santos Attorneys for Defendants
Avalon Johnson Attorneys for Defendants
Nolan Dilts Attorneys for Plaintiffs
Jonathan Sack Attorney
Charlotte James Attorneys for Plaintiffs
Aparajit Bhowmik Attorneys for Plaintiffs
Nathaniel Jenkins Attorneys for Defendants
Thomas Segal
Alexandra McIntosh Attorneys for Plaintiffs
Erin Price Attorney
Janine Menhennet Attorneys for Plaintiffs
Larry Lee Attorneys for Plaintiffs
Nicholas Rosenthal Attorneys for Plaintiffs
Kristen Agnew Attorneys for Plaintiffs
Max Gavron Attorneys for Plaintiffs
William Marder Attorneys for Plaintiffs
Michael Afar Attorneys for Plaintiffs
Dennis Murphy Attorneys for Defendants
Aaron Silva Attorneys for Defendants
Shawn Joost Attorneys for Defendants
Stacey Shim Attorneys for Plaintiffs
Ashley Blaser Attorney
Stephanie Gray Attorney

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Exhibit,Appendix: Andrea Spears vs. Health Net of California Inc

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