Preview
TIMOTHY J. LONG (STATE BAR NO. 137591)
tJlong(§orrick.com
2 NICHOLAS J. HORTON (STATE BAR >J0. 289417)
nhorton(§orrick.com FlLED/ENDORSED
3 AVALON JOHNSON FITZGERALD (STATE BAR NO. 2881 67)
afitzgerald(^orrick.com
4 ORRICK. HERRINGTON & SUTCLIFFE LLP JAN 3 0 2019
4aQ.Capitol Mall, Suite 30€0 - ' - -
5 Sacramento, CA 95814-4497 Bv; J. Carrisosa
Telephone: +1916 447 8299
6 Facsimile: +1 916 329 4900
7 Attorneys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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-
11 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
12 Plaintiff, DEFENDANT HEALTH NET OF
CALIFORNIA, INC.'S RESPONSE TO
13 V. PLAINTIFF'S OBJECTIONS TO
EVIDENCE
14 HEALTH NET OF CALIFORNIA, INC., a
California Corporation; and Does 1 through 50, Date: February 4, 2019
15 inclusive. Time: 9:00 a.m.
Dept: 54
16 Defendants.
Reservation No.: 2380178
17
Complaint Filed: April 5,2017
18 FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
19
20 Complaint Filed: August 1,2017
TOMAS R. ARANA, on behalf of himself, all
21 others similarly situated.
22 Plaintiff
23 V.
24 HEALTH NET OF CALIFORNIA, INC., a
California corporation; and DOES 1-50,
25 inclusive.
26 Defendant.
27
28
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 Defendant Health Net of California, Inc. ("HNCA") makes the following response to the
2 Objections to Evidence filed by Plaintiff Andrea Spears in Opposition to FTNCA's Renewed
3 Motion for Summary Adjudication ("Renewed MSA"). For the reasons set forth below, FTNCA
4 respectfully requests that thcCourt overrule each of Spears' objections to FTNCA's evidence
5 submitted in support of its Renewed MSA.
6 A. DECLARATION OF KELLY SARABIA
7 No. Evidence Spears' Objection HNCA's Response
8 Declaration of Improper legal Spears misquotes the Declaration of
Kelly Sarabia, T|2, conclusion; lack of Kelly Sarabia. Decl. of Kelly
9 stating: "HNI foundation (Evid. Sarabia ISO Renewed MSA ("Sarabia
processed ITNCA's Code §§ 403, 405); Decl.") 112.
10 payroll from before lack of factual or
2012 through the evidentiary The statement does not constitute an
11 end of 2016. As the support; vague and impermissible legal conclusion because it
payroll processor, ambiguous; is supported by specific facts. Cf
12 HNI tracked contradicts Guthrey v. California, 63 Cal. App. 4th
benefits received Sarabia's sworn 1108, 1119 (1998) (declaration
13 by HNCA deposition statements are properly excluded where
employees on their testimony (Exhibit they are purely conclusory and not based
14 pay stubs as 10. Sarabia Depo., on facts).
earnings under pay 48:2-6 (defining As the former Payroll Director for Health
15 codes "cash benefit" as Net, Inc. ("FfNI"), Sarabia has sufficient-
"MedFlxElct" and only the "employer information about the organization of
16 "DenFIxElct" and contribution payroll, paystubs, and pay codes used by
"MedFlxWave" amount to offset HNI, as well as the benefits offered by
17 and DenFlxWave." the cost of medical the HNI Associate Benefits Program
I am informed and and dental ("the Plan"). She is testifying to her
18 believe that the coverage."). personal knowledge, for which she
benefits that I am adequately laid the foundation. Evid.
19 referring to Code §§ 702, 800 ("an opinion as is
(also/known as permitted by law, including but not
20 "Flex Dollars") are limited to an opinion that is (a) rationally
benefits provided based on the perception of the witness;
21 to HNCA and (b) helpful to a clear understanding
employees who of his testimony."). Moreover, Spears
22 participated and fails to specify how these statements
received benefits supposedly lack foundation. See Witkin,
23 under the Health Cal. Evidence (5th ed. 2012) Presentation
Net, Inc. Associate at Trial, § 392, p. 548-49 (citing People
24 Benefits Program V. Modell, 143 Cal. App. 2d 724, 729
(the "Plan")." (1956) ; Parlier Fruit Co. v. Fireman's
25 Fund Ins. Co., 151 Cal. App. 2d 6, 15
(1957) ).
26
Spears does not identify what facts "lack
27 factual or evidentiary support." Cramer
V. Morrison, 88 Cal. App. 3d 873. 886
28 (1979) ("An objection must specify a
reasonably definite statement of the
•1-
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 No. Evidence Spears' Objection HNCA's Response
ground or grounds so that the judge may
2 properly pass on the objection and-the
adversary may have an opportunity to
3 remedy, if possible, any deficiency.").
Moreover, Sarabia's sworn statement
4 itself is evidence, and; as it is based on
her personal knowledge, requires no '
5 separate factual or evidentiary support.
6 Spears does not identify what is vague
about the statement, and in fact it is not
7 vague. Cramer, 88 Cal. App. 3d at 886.
Spears fails to specify how this statement
8 contradicts Sarabia's deposition
testimony, and in fact it is not
9 contradictory. Declarations may only be
disregarded when "it and the party's
10 deposition testimony . . . are
'contradictory and mutually
11 exclusive . . . ." Benavidez v. San Jose
Police Dep 7, 71 Cal. App. 4th 853, 862-
12 63 (1999). Spears' objection does not
satisfy this standard. Sarabia confirmed
13 that she understood that Flex Dollars,
including Flex Dollars for waiving
14 medical or dental coverage, were cash
benefits. See Decl. of Nicholas J. Horton
-15 ISO Reply to Renewed MSA ("Horton
Decl."), Ex. C at 37:11-21, 40:5-41:2,
16 47:21-48:20, 62:14-21.
17 Additionally, Sarabia was deposed after
her declaration was filed. Spears cites no
18 authority for the proposition that
declarations must be stricken when
19 contradicted by later depositions, and
HNCA is aware of none. See Shin v.
20 Ahn. 42 Cal. 4th 482, 500 n. 12 (2007)
("[A] party cannot create an issue of fact
21 by a declaration which contradicts his
prior discovery responses" (emphasis
22 added)); Browne v. Turner Constr. Co.,
127 Cal. App. 4th 1334, 1349 (2005)
23 ("The cases cited by defendants prevent
parties from avoiding summary judgment
24 by contradicting their earlier,
unequivocal admissions.... Here plaintiff
25 made no such earlier affirmative
admission." (emphasis added)). ^
26
2. Declaration of Improper legal The statement does not constitute an
27 Kelly Sarabia, TJ3, conclusion; lack of impermissible legal conclusion because it
stating: "The foundation (Evid. is supported by specific facts. Cf.
28 following table Code §§ 403, 405); Guthrey, 63 Cal. App. 4th at 1119.
reflects the amount lack of factual or
-2-
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 No. Evidence Spears' Objection HNCA's Response
of benefits TTNCA evidentiary As the former Payroll Director for HNI,
2 employees received support; vague and Sarabia has sufficient information about
under the pay ambiguous; the organization of payroll, paystubs, and
3 codes contradicts pay codes used by HNI, as well as the
"MedFlxElct" and Sarabia's sworn benefits offered by the Plan. She is
4. "DenFIxElct" and deposition testifying to her personal knowledge, for
"MedFlxWave" - testimony (Exhibit wlrich she-adeqiiately latd-the foundatiorrr
5 and "DenFlxWave" 10, Sarabia Depo., Evid. Code §§ 702, 800. Moreover,
for the years 2013 48:2-6 (defining Spears fails to specify how these
6 to 2016." "cash benefit" as statements supposedly lack foundation.
only the "employer See Witkin, Cal. Evidence, supra at 548-
7 contribution 49.
amount to offset
8 the cost of medical Spears does not identify what facts "lack
and dental factual or evidentiary support." Cramer,
9 coverage."). 88 Cal. App. 3d at 886. Sarabia's sworn
statement itself is evidence, and, as it is
10 based on her personal knowledge,
requires no separate factual or
11 evidentiary support.
Spears does not identify what is vague
12 about the statement. Cramer, 88 Cal.
App. 3d at 886.
13
Spears fails to specify how this statement
14 contradicts Sarabia's deposition
testimony, and in fact it is not
15 contradictory.. Declarations may only be .,
disregarded when "it and the party's
16 deposition testimony . . . are
'contradictory and mutually exclusive . . .
17 ." Benavidez, 71 Cal. App. 4th at 862-
63. Spears' objection does not satisfy
18 this standard. Sarabia confirmed that she
understood that Flex Dollars, including
19 Flex Dollars for waiving medical or
dental coverage, were cash benefits. See
20 Horton Decl., Ex. C at 37:11-21, 40:5-
41:2, 47:21-48:20, 62:14-21.
21 Additionally, Sarabia was deposed after
her declaration was filed. Spears cites no
22 authority for the proposition that
declarations must be stricken when
23 contradicted by later depositions, and
FTNCA is aware of none. See Shin,
24 42 Cal. 4th at 500 n. 12; Browne,
127 Cal. App. 4th at 1349.
25
26
27
28
-3-
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 B. DECLARATION OF DEBBIE COLIA
2 No. Evidence Spears' Objection HNCA's Response
3 3. Declaration of Improper legal Spears misquotes the Declaration of
Debbie Colia, HI, conclusion; lack of Debbie Colia. See Decl. of Debbie
1 stating; "FTNI and foundation (Evid. Colia ISO Renewed MSA ('Tolia
HNC-4,ivere-(and to Code §§-403,-405); Decl.'^H-U-- -
5 my knowledge still lack of factual or
are) separate evidentiary The statement does not constitute an
corporate entities support; vague and impermissible legal conclusion
6 because it is supported by specific
during the time I ambiguous;
was a Vice inadmissible facts. Cf. Guthrey, 63 Cal. App. 4th
7 at 1119.
President of opinion (Evid.
8 Organizational Code § 803); As the former Vice President of
Effectiveness for contradicts Colia's Organizational Effectiveness for
.9 FIN I and they sworn deposition FTNI, Colia has sufficient information
operated as separate testimony (Exhibit about the corporate structures of
10 corporate entities, 5, Colia Depo., HNCA and HNI. She is testifying to
including for all 20:19-23:1, 34:5- her personal knowledge, for which
11 purposes I describe 12, 84:18-85:6, she adequately laid the foundation.
in this declaration." 48:15-24). Evid. Code §§ 702, 800. Moreover,
12 Spears fails to specify how these
statements supposedly lack
13 foundation. See Witkin, Cal.
Evidence, supra at 548-49.
14 Spears does not identify what facts
"lack factual or evidentiary support."
15 Cramer, 88 Cal. App. 3d at 886.
Colia's sworn statement itself is
16 evidence, and, as it is based on her
personal knowledge, requires no
17 separate factual or evidentiary
support.
18
Spears does not identify what is
19 vague about the statement. Cramer,
88 Cal. App. 3d at 886.
20 Spears' objection that this statement
constitutes an inadmissible opinion is
21 improperly stated. Evid. Code § 803;
People V. Lipari, 213 Cal. App. 2d
22 485,493 (1963).
23
Spears fails to specify how this
24 statement contradicts Colia's
deposition testimony, and in fact it is
25 not contradictory. Declarations may
only be disregarded when "it and the
26 party's deposition testimony . . . are
'contradictory and mutually
27 exclusive . . . .''Benavidez, 71 Cal.
App. 4th at 862-63. Spears'
28 objection does not satisfy this
standard. Indeed, Spears
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 No. Evidence Spears' Objection HNCA's Response
mischaracterizes the testimony.
2 Colia confirmed that Flex Dollars for
waiving medical or dental coverage
3 were maintained in an account
administered by the Benefits
4 Committee,-used for Plan purposes
only, antf-paid out in^cce^-'dance with
5 the Plan. Horton Decl., Ex. B
at 35:16-36:14, 72:3-8; 155:11-
6 156:21.
7 Additionally, Colia was deposed after
her declaration was filed. Spears
8 cites no authority for the proposition
that declarations must be stricken
9 when contradicted by later
depositions, and HNCA is aware of
10 none. See Shin, 42 Cal. 4th at 500 n.
12; Browne, 127 Cal. App. 4th at
11 1349.
12
4. Declaration of Improper legal The statement does not constitute an
13 Debbie Colia, \2, conclusion; lack of impeiTnissible legal conclusion
stating: "Spears foundation (Evid. because it is supported by specific
14 Andrea Spears and Code §§ 403, 405); facts. Cf Guthrey, 63 Cal. App. 4th
Tomas Arana were lack of factual or at 1119.
Plan Participants." evidentiary
15 support; vague and As the former Vice President of
ambiguous; Organizafional Effecfiveness for
16 inadmissible FTNI, Colia has sufficient information
opinion (Evid. about the Plan and how it defines its
17 Code § 803). Associate Plan Participants. She is
testifying to her personal knowledge,
18 for which she adequately laid the
foundation. Evid. Code §§ 702, 800.
19 Moreover, Spears fails to specify how
these statements supposedly lack
20 foundation. See Witkin, Cal.
Evidence, supra at 548-49.
21
Spears does not identify what facts
22 "lack factual or evidentiary support."
Cramer, 88 Cal. App. 3d at 886.
23 Colia's sworn statement itself is
evidence, and, as it is based on her
personal knowledge, requires no
24 separate factual or evidentiary
support.
25
Spears does not identify what is
26 vague about the statement. Cramer,
88 Cal. App. 3d at 886.
27
Spears' objection that this statement
28 constitutes an inadmissible opinion is
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 No. Evidence Spears' Objection HNCA's Response
improperly stated. Evid. Code § 803;
2 Lipari, 213Cai.App. 2dat493.
3 5. Declaration of Improper legal The statement does not constitute an
Debbie Colia, lA, conclusion; lack of impermissible legal conclusion
4 stating: "To that- foundafion.(Evid.-- because it is supported by specific
end;'f-I-NI as-the — -Code §§4035-465),- facts.' Cjr^TUthrey, 63 Cal. App. 4th
5 plan sponsor and lack of factual or at 1119.
administrator evidentiary
6 ensured that support; vague and As the former Vice President of
HNCA's employer ambiguous; Organizational Effectiveness for
7 contributions to the inadmissible HNI, Colia has sufficient information
plan were tracked, opinion (Evid. about the sponsorship and
8 kept in a separate Code § 803); administration of the Plan. She is
account, and used contradicts Colia's testifying to her personal knowledge,
9 only for proper Plan sworn deposition for which she adequately laid the
purposes related to testimony (Exhibit foundation. Evid. Code §§ 702, 800.
10 providing the health 5, Colia Depo., Moreover, Spears fails to specify how
and welfare 98:2-9, 97:13-24, these statements supposedly lack
11 benefits to Plan 34:21-35:1, 35:2- foundadon. See Witkin, Cal.
Participants, Evidence, supra at 548-49.
15, 49:8-19; 38:5-
12 including Plaintiffs 16, 72:3-8, 156:5- Spears does not identify what facts
Andrea Spears and 21, 129:9-131:25); "lack factual or evidentiary support."
13 Tomas Arana, and lack of personal Cramer, 88 Cal. App. 3d at 886.
their dependents." knowledge (Evid. Colia's sworn statement itself is
14 Code § 702(a)). evidence, and, as it is based on her
personal knowledge, requires no
15 separate factual or evidentiary
support.
16
Spears does not identify what is
17 vague about the statement. Cramer,
88 Cal. App. 3d at 886.
18 Spears' objection that this statement
constitutes an inadmissible opinion is
19 improperly stated. Evid. Code § 803;
Lipari, 213 Cal. App. 2d at 493.
20
Spears fails to specify how this
21 statement contradicts Colia's
deposition testimony, and in fact it is
not contradictory. Declarations may
22 only be disregarded when "it and the
party's deposition testimony . . . are
23 'contradictory and mutually
exclusive . . . ." Benavidez, 71 Cal.
24 App. 4th at 862-63. Spears'
objection does not satisfy this
25 standard. Colia confirmed that Flex
Dollars for waiving medical or dental
26 coverage were maintained in an
account administered by the Benefits
27 Committee, used for Plan purposes
only, and paid out in accordance with
28 the Plan. Horton Decl., Ex. B
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 No. Evidence Spears' Objection HNCA's Response
at 35:16-36:14, 72:3-8; 155:11-
2 156:21.
3 Additionally, Colia was deposed after
her declaration was filed. Spears
4 cites no authority for the proposition
that declarations must bestricken . '
5 when contradicted by later
depositions, and HNCA is aware of
6 none. See Shin, 42 Cal. 4th at 500
n. 12; Browne, 127 Cal. App. 4th at
7 1349.
8 Declaration of Improper legal Spears misquotes the Declaration of
Debbie Colia, ^5, conclusion; lack of Debbie Colia. S'ee Colia Decl. H 5.
9 stating: "HNI foundadon (Evid.
treated HNCA~as a Code §§403,405); The statement does not constitute an -
third party for lack of factual or impermissible legal conclusion
10 because it is supported by specific
purposes of evidentiary
administering the support; vague and facts. Cf. Guthrey, 63 Cal. App. 4th
11 at 1119.
Plan, and vice ambiguous;
12 versa. Pursuant to a inadmissible As the former Vice President of
funded arrangement opinion (Evid. Organizational Effectiveness for
13 with HNI, HNCA Code § 803); FTNI, Colia has sufficient information
paid the actual costs contradicts Colia's about the sponsorship and
14 of benefits under sworn deposition administration ofthe Plan. She is
the Plan (e.g., the testimony (Exhibit testifying to her personal knowledge,
15 cash benefits paid 5, Colia Depo., for which she adequately laid the
to Ms. Spears 20:19-23:1, 34:5- foundation'. Evid. Code §§ 702, 800.
16 which 1 understand 12, 84:18-85:6, Moreover, Spears fails to specify how
is the subject to of 48:15-24, 98:2-9, these statements supposedly lack
17 this Motion) for its 97:13-24, 34:21- foundation. See Witkin, Cal.
eligible employees 35:1, 35:2-15, Evidence, supra at 548-49.
18 who elected to 49:8-19; 38:5-16,
participate in the 72:3-8, 156:5-21, Spears does not identify what facts
Plan (i.e.. Plan 34:5-12, 84:18- "lack factual or evidentiary support."
19 Participants), 85:6, 66:24-67:14, Cramer, 88 Cal. App. 3d at 886.
including Ms. 138:11-139:5, Colia's sworn statement itself is
20 Spears and Mr. 143:24-144:19, evidence, and, as it is based on her
Arana. FTNCA paid 96:2-8, 137:10-16, personal knowledge, requires no
21 to HNI in its 38:5-16, 72:3-8, separate factual or evidentiary
capacity as Plan 156:5-21,42:22- support.
22 sponsor and 43:19, 46:14-47:2,
administrator the 144:23-146:4, Spears does not identify what is
23 vague about the statement. Cramer,
full amount 129:9-131:25); 88Cal. App. 3dat 886.
necessary to cover lack of personal
24 FTNCA's employer knowledge (Evid. Spears' objection that this statement
contributions as by Code § 702(a)). constitutes an inadmissible opinion is
25 the Plan. HNCA's improperly stated. Evid. Code § 803;
employer Lipari, 213 Cal. App. 2d at 493.
26 contributions
included both core Spears fails to specify how this
27 and optional statement contradicts Colia's
benefits, and the deposition testimony, and in fact it is
28 cash benefits not contradictory. Declaradons may
only be disregarded when "it and the
-7-
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
No. Evidence Spears' Objection HNCA's Response
described below party's deposition testimony are
2 and at issue in this 'contradictory and mutually
Motion, which were exclusive . . . ." Benavidez, 71 Cal.
3 paid by HNI as the App. 4th at 862-63. Spears'
Plan sponsor and objection does not satisfy this
-.4 administrator to standard. Colia confirmed-that Flex.
certafii-eHgible Plan- Dollars-for waiving meclrcal or dental'^
5 Participants, coverage were paid by HNCA into an
including Mr. account maintained and administered
6 Arana and Ms. by the Benefits Committee, who used
Spears." those funds for Plan purposes only
7 and made payments in accordance
with the Plan. Horton Decl., Ex. B
8 at35:16-36:14, 72:3-8; 155:11-
156:21.
. 9. Additionally, Colia was deposed ay/er
10 her declaration was filed. Spears
cites no authority for the proposition
11 that declarations must be stricken
when contradicted by later
12 deposidons, and HNCA is aware of
none. See Shin, 42 Cal. 4th at 500
13 n. 12; Browne, 127 Cal. App. 4th
at 1349.
14
7. Declaration of Improper legal The statement does not constitute an
15 Debbie Colia, ^[6, conclusion; lack of imperrnissible legal conclusion
stating: "Pursuant foundation (Evid. because it is supported by specific
16 to this funded Code §§ 403, 405); facts. Cf Guthrey, 63 Cal. App. 4th
arrangement with lack of factual or at 1119.
17 HNI, HNCA's evidendary
employer support; vague and As the former Vice President of
ambiguous; Organizational Effectiveness for
18 contributions to the HNI, Colia has sufficient informadon
Plan were deposited inadmissible
opinion (Evid. about the sponsorship and.
19 into an account administration of the Plan. She is
maintained and Code § 803);
contradicts Colia's testifying to her personal knowledge,
20 controlled by FTNI for which she adequately laid the
as the Plan's sworn deposition
testimony (Exhibit foundation. Evid. Code §§ 702, 800.
21 sponsor and Moreover, Spears fails to specify how
administrator. 5, Colia Depo.,
20:19-23:1, 34:5- these statements supposedly lack
22 HNCA's foundation. See Witkin, Cal.
contributions were 12, 84:18-85.6,
48:15-24, 98:2-9, Evidence, supra at 548-49.
23 irrevocable- once
made to FTNI, 97:13-24, 34:21- Spears does not identify what facts
HNCA was unable 35:1, 35:2-15, "lack factual or evidentiary support."
24 49:8-19; 38:5-16,
to recapture or Cramer, 88 Cal. App. 3d at 886.
divert the funds for 72:3-8, 156:5-21, Colia's sworn statement itself is
25 34:5-12, 84:18-
FTNCA's use or evidence, and, as it is based on her
benefit. Instead, 85:6, 66:24-67:14, personal knowledge, requires no
26 138:11-139:5,
FTNI as the Plan separate factual or evidentiary
sponsor and 143:24 -144:19, support.
27 96:2-8, 137:10-16,
administrator,
controlled those 38:5-16, 72:3-8,
28 156:5-21,42:22-
monies once these
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
No. Evidence Spears' Objection HNCA's Response
monies were 43:19, 46:14-47:2, Spears does not identify what is
2 deposited into that 144:23-146:4, vague about the statement. Cramer,
account. FTNI then 129:9-131:25); 88 Cal. App. 3d at 886.
3 used these funds lack of personal
from this account to knowledge (Evid. Spears' objection that this statement
_4 pay for benefits -Code § 702(a)). ._. constitutes an inadmissible opinion is
provided b^y the improperly stated. ErldrCode § 803;
5 Plan, including the Lipari, 213 Cal. App. 2d at
cash benefits at 493.Spears fails to specify how this
6 issue in this statement contradicts Colia's
Motion, which were deposition testimony, and in fact it is
7 paid by HNI as the not contradictory. Declarations may
Plan's sponsor and only be disregarded when "it and the
8 administrator to party's deposition testimony . . . are
those Plan 'contradictory and mutually
9 Participants who exclusive . . . ." Benavidez, 71 Cal.
elected to waive App. 4th at 862-63. Spears'
10 certain benefits objection does not satisfy this
offered by the Plan, standard. Colia confirmed that Flex
11 which included Ms. Dollars for waiving medical or dental
Spears." coverage were maintained in an
12 account administered by the Benefits
Committee, used for Plan purposes
13 only, and paid out in accordance with
14 the Plan. Horton Decl., Ex. B
at 35:16-36:14, 72:3-8; 155:11-
15 156:21.
16 Additionally, Colia was deposed after
her declaration was filed. Spears
17 cites no authority for the proposition
that declarations must be stricken
18 when contradicted by later
depositions, and TTNCA is aware of
19 none. See Shin, 42 Cal. 4th at 500
n. 12; Browne, 127 Cal. App. 4th
20 at 1349.
21 8. Declaration of Improper legal The statement does not constitute an
Debbie Colia, 1|12, conclusion; lack of impermissible legal conclusion
22 stating: "However, foundation (Evid. because it is supported by specific
if a Plan Code §§ 403, 405); facts. Cf. Guthrey, 63 Cal. App. 4th
23 Participant's Flex lack of factual or at 1119.
Dollars exceeded evidentiary As the former Vice President of
24 the cost of coverage support; vague and Organizational Effectiveness for
or if the Plan ambiguous;
Participant waived FTNI, Colia has sufficient information
25 inadmissible about the sponsorship and
medical and/or opinion (Evid.
dental coverage, the administration of the Plan. She is
26 Code § 803); testifying to her personal knowledge,
Plan Participant contradicts Colia's
received a portion for which she adequately laid the
27 sworn deposition foundation. Evid. Code §§ 702, 800.
of the Flex Dollars testimony (Exhibit
as a cash benefit Moreover, Spears fails to specify how
28 5, Colia Depo., these statements supposedly lack
(which I understand 56:12-21,20:19-
-9-
DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE
4161-6133-6602
1 No. Evidence Spears' Objection HNCA's Response
is the subject of this 23:1, 34:5-12, foundation. See Witkin, Cal.
2 Motion). HNI, as 84:1.8-85:6, 48:15- Evidence, .supra at 548-49.
the Plan sponsor 24, 34:5-12, 84:18-
3 and administrator, Spears does not identify what facts
85:6, 66:24-67:14,
pai
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TIMOTHY J. LONG (STATE BAR NO. 137591) tJlong(§orrick.com 2 NICHOLAS J. HORTON (STATE BAR >J0. 289417) nhorton(§orrick.com FlLED/ENDORSED 3 AVALON JOHNSON FITZGERALD (STATE BAR NO. 2881 67) afitzgerald(^orrick.com 4 ORRICK. HERRINGTON & SUTCLIFFE LLP JAN 3 0 2019 4aQ.Capitol Mall, Suite 30€0 - ' - - 5 Sacramento, CA 95814-4497 Bv; J. Carrisosa Telephone: +1916 447 8299 6 Facsimile: +1 916 329 4900 7 Attorneys for Defendant HEALTH NET OF CALIFORNIA, INC. 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- 11 of herself and on behalf of all persons similarly CU-OE-GDS situated, 12 Plaintiff, DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S RESPONSE TO 13 V. PLAINTIFF'S OBJECTIONS TO EVIDENCE 14 HEALTH NET OF CALIFORNIA, INC., a California Corporation; and Does 1 through 50, Date: February 4, 2019 15 inclusive. Time: 9:00 a.m. Dept: 54 16 Defendants. Reservation No.: 2380178 17 Complaint Filed: April 5,2017 18 FAC Filed: June 29, 2017 Consolidated Complaint Filed: Dec. 21, 2017 19 20 Complaint Filed: August 1,2017 TOMAS R. ARANA, on behalf of himself, all 21 others similarly situated. 22 Plaintiff 23 V. 24 HEALTH NET OF CALIFORNIA, INC., a California corporation; and DOES 1-50, 25 inclusive. 26 Defendant. 27 28 DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 Defendant Health Net of California, Inc. ("HNCA") makes the following response to the 2 Objections to Evidence filed by Plaintiff Andrea Spears in Opposition to FTNCA's Renewed 3 Motion for Summary Adjudication ("Renewed MSA"). For the reasons set forth below, FTNCA 4 respectfully requests that thcCourt overrule each of Spears' objections to FTNCA's evidence 5 submitted in support of its Renewed MSA. 6 A. DECLARATION OF KELLY SARABIA 7 No. Evidence Spears' Objection HNCA's Response 8 Declaration of Improper legal Spears misquotes the Declaration of Kelly Sarabia, T|2, conclusion; lack of Kelly Sarabia. Decl. of Kelly 9 stating: "HNI foundation (Evid. Sarabia ISO Renewed MSA ("Sarabia processed ITNCA's Code §§ 403, 405); Decl.") 112. 10 payroll from before lack of factual or 2012 through the evidentiary The statement does not constitute an 11 end of 2016. As the support; vague and impermissible legal conclusion because it payroll processor, ambiguous; is supported by specific facts. Cf 12 HNI tracked contradicts Guthrey v. California, 63 Cal. App. 4th benefits received Sarabia's sworn 1108, 1119 (1998) (declaration 13 by HNCA deposition statements are properly excluded where employees on their testimony (Exhibit they are purely conclusory and not based 14 pay stubs as 10. Sarabia Depo., on facts). earnings under pay 48:2-6 (defining As the former Payroll Director for Health 15 codes "cash benefit" as Net, Inc. ("FfNI"), Sarabia has sufficient- "MedFlxElct" and only the "employer information about the organization of 16 "DenFIxElct" and contribution payroll, paystubs, and pay codes used by "MedFlxWave" amount to offset HNI, as well as the benefits offered by 17 and DenFlxWave." the cost of medical the HNI Associate Benefits Program I am informed and and dental ("the Plan"). She is testifying to her 18 believe that the coverage."). personal knowledge, for which she benefits that I am adequately laid the foundation. Evid. 19 referring to Code §§ 702, 800 ("an opinion as is (also/known as permitted by law, including but not 20 "Flex Dollars") are limited to an opinion that is (a) rationally benefits provided based on the perception of the witness; 21 to HNCA and (b) helpful to a clear understanding employees who of his testimony."). Moreover, Spears 22 participated and fails to specify how these statements received benefits supposedly lack foundation. See Witkin, 23 under the Health Cal. Evidence (5th ed. 2012) Presentation Net, Inc. Associate at Trial, § 392, p. 548-49 (citing People 24 Benefits Program V. Modell, 143 Cal. App. 2d 724, 729 (the "Plan")." (1956) ; Parlier Fruit Co. v. Fireman's 25 Fund Ins. Co., 151 Cal. App. 2d 6, 15 (1957) ). 26 Spears does not identify what facts "lack 27 factual or evidentiary support." Cramer V. Morrison, 88 Cal. App. 3d 873. 886 28 (1979) ("An objection must specify a reasonably definite statement of the •1- DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 No. Evidence Spears' Objection HNCA's Response ground or grounds so that the judge may 2 properly pass on the objection and-the adversary may have an opportunity to 3 remedy, if possible, any deficiency."). Moreover, Sarabia's sworn statement 4 itself is evidence, and; as it is based on her personal knowledge, requires no ' 5 separate factual or evidentiary support. 6 Spears does not identify what is vague about the statement, and in fact it is not 7 vague. Cramer, 88 Cal. App. 3d at 886. Spears fails to specify how this statement 8 contradicts Sarabia's deposition testimony, and in fact it is not 9 contradictory. Declarations may only be disregarded when "it and the party's 10 deposition testimony . . . are 'contradictory and mutually 11 exclusive . . . ." Benavidez v. San Jose Police Dep 7, 71 Cal. App. 4th 853, 862- 12 63 (1999). Spears' objection does not satisfy this standard. Sarabia confirmed 13 that she understood that Flex Dollars, including Flex Dollars for waiving 14 medical or dental coverage, were cash benefits. See Decl. of Nicholas J. Horton -15 ISO Reply to Renewed MSA ("Horton Decl."), Ex. C at 37:11-21, 40:5-41:2, 16 47:21-48:20, 62:14-21. 17 Additionally, Sarabia was deposed after her declaration was filed. Spears cites no 18 authority for the proposition that declarations must be stricken when 19 contradicted by later depositions, and HNCA is aware of none. See Shin v. 20 Ahn. 42 Cal. 4th 482, 500 n. 12 (2007) ("[A] party cannot create an issue of fact 21 by a declaration which contradicts his prior discovery responses" (emphasis 22 added)); Browne v. Turner Constr. Co., 127 Cal. App. 4th 1334, 1349 (2005) 23 ("The cases cited by defendants prevent parties from avoiding summary judgment 24 by contradicting their earlier, unequivocal admissions.... Here plaintiff 25 made no such earlier affirmative admission." (emphasis added)). ^ 26 2. Declaration of Improper legal The statement does not constitute an 27 Kelly Sarabia, TJ3, conclusion; lack of impermissible legal conclusion because it stating: "The foundation (Evid. is supported by specific facts. Cf. 28 following table Code §§ 403, 405); Guthrey, 63 Cal. App. 4th at 1119. reflects the amount lack of factual or -2- DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 No. Evidence Spears' Objection HNCA's Response of benefits TTNCA evidentiary As the former Payroll Director for HNI, 2 employees received support; vague and Sarabia has sufficient information about under the pay ambiguous; the organization of payroll, paystubs, and 3 codes contradicts pay codes used by HNI, as well as the "MedFlxElct" and Sarabia's sworn benefits offered by the Plan. She is 4. "DenFIxElct" and deposition testifying to her personal knowledge, for "MedFlxWave" - testimony (Exhibit wlrich she-adeqiiately latd-the foundatiorrr 5 and "DenFlxWave" 10, Sarabia Depo., Evid. Code §§ 702, 800. Moreover, for the years 2013 48:2-6 (defining Spears fails to specify how these 6 to 2016." "cash benefit" as statements supposedly lack foundation. only the "employer See Witkin, Cal. Evidence, supra at 548- 7 contribution 49. amount to offset 8 the cost of medical Spears does not identify what facts "lack and dental factual or evidentiary support." Cramer, 9 coverage."). 88 Cal. App. 3d at 886. Sarabia's sworn statement itself is evidence, and, as it is 10 based on her personal knowledge, requires no separate factual or 11 evidentiary support. Spears does not identify what is vague 12 about the statement. Cramer, 88 Cal. App. 3d at 886. 13 Spears fails to specify how this statement 14 contradicts Sarabia's deposition testimony, and in fact it is not 15 contradictory.. Declarations may only be ., disregarded when "it and the party's 16 deposition testimony . . . are 'contradictory and mutually exclusive . . . 17 ." Benavidez, 71 Cal. App. 4th at 862- 63. Spears' objection does not satisfy 18 this standard. Sarabia confirmed that she understood that Flex Dollars, including 19 Flex Dollars for waiving medical or dental coverage, were cash benefits. See 20 Horton Decl., Ex. C at 37:11-21, 40:5- 41:2, 47:21-48:20, 62:14-21. 21 Additionally, Sarabia was deposed after her declaration was filed. Spears cites no 22 authority for the proposition that declarations must be stricken when 23 contradicted by later depositions, and FTNCA is aware of none. See Shin, 24 42 Cal. 4th at 500 n. 12; Browne, 127 Cal. App. 4th at 1349. 25 26 27 28 -3- DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 B. DECLARATION OF DEBBIE COLIA 2 No. Evidence Spears' Objection HNCA's Response 3 3. Declaration of Improper legal Spears misquotes the Declaration of Debbie Colia, HI, conclusion; lack of Debbie Colia. See Decl. of Debbie 1 stating; "FTNI and foundation (Evid. Colia ISO Renewed MSA ('Tolia HNC-4,ivere-(and to Code §§-403,-405); Decl.'^H-U-- - 5 my knowledge still lack of factual or are) separate evidentiary The statement does not constitute an corporate entities support; vague and impermissible legal conclusion 6 because it is supported by specific during the time I ambiguous; was a Vice inadmissible facts. Cf. Guthrey, 63 Cal. App. 4th 7 at 1119. President of opinion (Evid. 8 Organizational Code § 803); As the former Vice President of Effectiveness for contradicts Colia's Organizational Effectiveness for .9 FIN I and they sworn deposition FTNI, Colia has sufficient information operated as separate testimony (Exhibit about the corporate structures of 10 corporate entities, 5, Colia Depo., HNCA and HNI. She is testifying to including for all 20:19-23:1, 34:5- her personal knowledge, for which 11 purposes I describe 12, 84:18-85:6, she adequately laid the foundation. in this declaration." 48:15-24). Evid. Code §§ 702, 800. Moreover, 12 Spears fails to specify how these statements supposedly lack 13 foundation. See Witkin, Cal. Evidence, supra at 548-49. 14 Spears does not identify what facts "lack factual or evidentiary support." 15 Cramer, 88 Cal. App. 3d at 886. Colia's sworn statement itself is 16 evidence, and, as it is based on her personal knowledge, requires no 17 separate factual or evidentiary support. 18 Spears does not identify what is 19 vague about the statement. Cramer, 88 Cal. App. 3d at 886. 20 Spears' objection that this statement constitutes an inadmissible opinion is 21 improperly stated. Evid. Code § 803; People V. Lipari, 213 Cal. App. 2d 22 485,493 (1963). 23 Spears fails to specify how this 24 statement contradicts Colia's deposition testimony, and in fact it is 25 not contradictory. Declarations may only be disregarded when "it and the 26 party's deposition testimony . . . are 'contradictory and mutually 27 exclusive . . . .''Benavidez, 71 Cal. App. 4th at 862-63. Spears' 28 objection does not satisfy this standard. Indeed, Spears DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 No. Evidence Spears' Objection HNCA's Response mischaracterizes the testimony. 2 Colia confirmed that Flex Dollars for waiving medical or dental coverage 3 were maintained in an account administered by the Benefits 4 Committee,-used for Plan purposes only, antf-paid out in^cce^-'dance with 5 the Plan. Horton Decl., Ex. B at 35:16-36:14, 72:3-8; 155:11- 6 156:21. 7 Additionally, Colia was deposed after her declaration was filed. Spears 8 cites no authority for the proposition that declarations must be stricken 9 when contradicted by later depositions, and HNCA is aware of 10 none. See Shin, 42 Cal. 4th at 500 n. 12; Browne, 127 Cal. App. 4th at 11 1349. 12 4. Declaration of Improper legal The statement does not constitute an 13 Debbie Colia, \2, conclusion; lack of impeiTnissible legal conclusion stating: "Spears foundation (Evid. because it is supported by specific 14 Andrea Spears and Code §§ 403, 405); facts. Cf Guthrey, 63 Cal. App. 4th Tomas Arana were lack of factual or at 1119. Plan Participants." evidentiary 15 support; vague and As the former Vice President of ambiguous; Organizafional Effecfiveness for 16 inadmissible FTNI, Colia has sufficient information opinion (Evid. about the Plan and how it defines its 17 Code § 803). Associate Plan Participants. She is testifying to her personal knowledge, 18 for which she adequately laid the foundation. Evid. Code §§ 702, 800. 19 Moreover, Spears fails to specify how these statements supposedly lack 20 foundation. See Witkin, Cal. Evidence, supra at 548-49. 21 Spears does not identify what facts 22 "lack factual or evidentiary support." Cramer, 88 Cal. App. 3d at 886. 23 Colia's sworn statement itself is evidence, and, as it is based on her personal knowledge, requires no 24 separate factual or evidentiary support. 25 Spears does not identify what is 26 vague about the statement. Cramer, 88 Cal. App. 3d at 886. 27 Spears' objection that this statement 28 constitutes an inadmissible opinion is DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 No. Evidence Spears' Objection HNCA's Response improperly stated. Evid. Code § 803; 2 Lipari, 213Cai.App. 2dat493. 3 5. Declaration of Improper legal The statement does not constitute an Debbie Colia, lA, conclusion; lack of impermissible legal conclusion 4 stating: "To that- foundafion.(Evid.-- because it is supported by specific end;'f-I-NI as-the — -Code §§4035-465),- facts.' Cjr^TUthrey, 63 Cal. App. 4th 5 plan sponsor and lack of factual or at 1119. administrator evidentiary 6 ensured that support; vague and As the former Vice President of HNCA's employer ambiguous; Organizational Effectiveness for 7 contributions to the inadmissible HNI, Colia has sufficient information plan were tracked, opinion (Evid. about the sponsorship and 8 kept in a separate Code § 803); administration of the Plan. She is account, and used contradicts Colia's testifying to her personal knowledge, 9 only for proper Plan sworn deposition for which she adequately laid the purposes related to testimony (Exhibit foundation. Evid. Code §§ 702, 800. 10 providing the health 5, Colia Depo., Moreover, Spears fails to specify how and welfare 98:2-9, 97:13-24, these statements supposedly lack 11 benefits to Plan 34:21-35:1, 35:2- foundadon. See Witkin, Cal. Participants, Evidence, supra at 548-49. 15, 49:8-19; 38:5- 12 including Plaintiffs 16, 72:3-8, 156:5- Spears does not identify what facts Andrea Spears and 21, 129:9-131:25); "lack factual or evidentiary support." 13 Tomas Arana, and lack of personal Cramer, 88 Cal. App. 3d at 886. their dependents." knowledge (Evid. Colia's sworn statement itself is 14 Code § 702(a)). evidence, and, as it is based on her personal knowledge, requires no 15 separate factual or evidentiary support. 16 Spears does not identify what is 17 vague about the statement. Cramer, 88 Cal. App. 3d at 886. 18 Spears' objection that this statement constitutes an inadmissible opinion is 19 improperly stated. Evid. Code § 803; Lipari, 213 Cal. App. 2d at 493. 20 Spears fails to specify how this 21 statement contradicts Colia's deposition testimony, and in fact it is not contradictory. Declarations may 22 only be disregarded when "it and the party's deposition testimony . . . are 23 'contradictory and mutually exclusive . . . ." Benavidez, 71 Cal. 24 App. 4th at 862-63. Spears' objection does not satisfy this 25 standard. Colia confirmed that Flex Dollars for waiving medical or dental 26 coverage were maintained in an account administered by the Benefits 27 Committee, used for Plan purposes only, and paid out in accordance with 28 the Plan. Horton Decl., Ex. B DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 No. Evidence Spears' Objection HNCA's Response at 35:16-36:14, 72:3-8; 155:11- 2 156:21. 3 Additionally, Colia was deposed after her declaration was filed. Spears 4 cites no authority for the proposition that declarations must bestricken . ' 5 when contradicted by later depositions, and HNCA is aware of 6 none. See Shin, 42 Cal. 4th at 500 n. 12; Browne, 127 Cal. App. 4th at 7 1349. 8 Declaration of Improper legal Spears misquotes the Declaration of Debbie Colia, ^5, conclusion; lack of Debbie Colia. S'ee Colia Decl. H 5. 9 stating: "HNI foundadon (Evid. treated HNCA~as a Code §§403,405); The statement does not constitute an - third party for lack of factual or impermissible legal conclusion 10 because it is supported by specific purposes of evidentiary administering the support; vague and facts. Cf. Guthrey, 63 Cal. App. 4th 11 at 1119. Plan, and vice ambiguous; 12 versa. Pursuant to a inadmissible As the former Vice President of funded arrangement opinion (Evid. Organizational Effectiveness for 13 with HNI, HNCA Code § 803); FTNI, Colia has sufficient information paid the actual costs contradicts Colia's about the sponsorship and 14 of benefits under sworn deposition administration ofthe Plan. She is the Plan (e.g., the testimony (Exhibit testifying to her personal knowledge, 15 cash benefits paid 5, Colia Depo., for which she adequately laid the to Ms. Spears 20:19-23:1, 34:5- foundation'. Evid. Code §§ 702, 800. 16 which 1 understand 12, 84:18-85:6, Moreover, Spears fails to specify how is the subject to of 48:15-24, 98:2-9, these statements supposedly lack 17 this Motion) for its 97:13-24, 34:21- foundation. See Witkin, Cal. eligible employees 35:1, 35:2-15, Evidence, supra at 548-49. 18 who elected to 49:8-19; 38:5-16, participate in the 72:3-8, 156:5-21, Spears does not identify what facts Plan (i.e.. Plan 34:5-12, 84:18- "lack factual or evidentiary support." 19 Participants), 85:6, 66:24-67:14, Cramer, 88 Cal. App. 3d at 886. including Ms. 138:11-139:5, Colia's sworn statement itself is 20 Spears and Mr. 143:24-144:19, evidence, and, as it is based on her Arana. FTNCA paid 96:2-8, 137:10-16, personal knowledge, requires no 21 to HNI in its 38:5-16, 72:3-8, separate factual or evidentiary capacity as Plan 156:5-21,42:22- support. 22 sponsor and 43:19, 46:14-47:2, administrator the 144:23-146:4, Spears does not identify what is 23 vague about the statement. Cramer, full amount 129:9-131:25); 88Cal. App. 3dat 886. necessary to cover lack of personal 24 FTNCA's employer knowledge (Evid. Spears' objection that this statement contributions as by Code § 702(a)). constitutes an inadmissible opinion is 25 the Plan. HNCA's improperly stated. Evid. Code § 803; employer Lipari, 213 Cal. App. 2d at 493. 26 contributions included both core Spears fails to specify how this 27 and optional statement contradicts Colia's benefits, and the deposition testimony, and in fact it is 28 cash benefits not contradictory. Declaradons may only be disregarded when "it and the -7- DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 No. Evidence Spears' Objection HNCA's Response described below party's deposition testimony are 2 and at issue in this 'contradictory and mutually Motion, which were exclusive . . . ." Benavidez, 71 Cal. 3 paid by HNI as the App. 4th at 862-63. Spears' Plan sponsor and objection does not satisfy this -.4 administrator to standard. Colia confirmed-that Flex. certafii-eHgible Plan- Dollars-for waiving meclrcal or dental'^ 5 Participants, coverage were paid by HNCA into an including Mr. account maintained and administered 6 Arana and Ms. by the Benefits Committee, who used Spears." those funds for Plan purposes only 7 and made payments in accordance with the Plan. Horton Decl., Ex. B 8 at35:16-36:14, 72:3-8; 155:11- 156:21. . 9. Additionally, Colia was deposed ay/er 10 her declaration was filed. Spears cites no authority for the proposition 11 that declarations must be stricken when contradicted by later 12 deposidons, and HNCA is aware of none. See Shin, 42 Cal. 4th at 500 13 n. 12; Browne, 127 Cal. App. 4th at 1349. 14 7. Declaration of Improper legal The statement does not constitute an 15 Debbie Colia, ^[6, conclusion; lack of imperrnissible legal conclusion stating: "Pursuant foundation (Evid. because it is supported by specific 16 to this funded Code §§ 403, 405); facts. Cf Guthrey, 63 Cal. App. 4th arrangement with lack of factual or at 1119. 17 HNI, HNCA's evidendary employer support; vague and As the former Vice President of ambiguous; Organizational Effectiveness for 18 contributions to the HNI, Colia has sufficient informadon Plan were deposited inadmissible opinion (Evid. about the sponsorship and. 19 into an account administration of the Plan. She is maintained and Code § 803); contradicts Colia's testifying to her personal knowledge, 20 controlled by FTNI for which she adequately laid the as the Plan's sworn deposition testimony (Exhibit foundation. Evid. Code §§ 702, 800. 21 sponsor and Moreover, Spears fails to specify how administrator. 5, Colia Depo., 20:19-23:1, 34:5- these statements supposedly lack 22 HNCA's foundation. See Witkin, Cal. contributions were 12, 84:18-85.6, 48:15-24, 98:2-9, Evidence, supra at 548-49. 23 irrevocable- once made to FTNI, 97:13-24, 34:21- Spears does not identify what facts HNCA was unable 35:1, 35:2-15, "lack factual or evidentiary support." 24 49:8-19; 38:5-16, to recapture or Cramer, 88 Cal. App. 3d at 886. divert the funds for 72:3-8, 156:5-21, Colia's sworn statement itself is 25 34:5-12, 84:18- FTNCA's use or evidence, and, as it is based on her benefit. Instead, 85:6, 66:24-67:14, personal knowledge, requires no 26 138:11-139:5, FTNI as the Plan separate factual or evidentiary sponsor and 143:24 -144:19, support. 27 96:2-8, 137:10-16, administrator, controlled those 38:5-16, 72:3-8, 28 156:5-21,42:22- monies once these DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 No. Evidence Spears' Objection HNCA's Response monies were 43:19, 46:14-47:2, Spears does not identify what is 2 deposited into that 144:23-146:4, vague about the statement. Cramer, account. FTNI then 129:9-131:25); 88 Cal. App. 3d at 886. 3 used these funds lack of personal from this account to knowledge (Evid. Spears' objection that this statement _4 pay for benefits -Code § 702(a)). ._. constitutes an inadmissible opinion is provided b^y the improperly stated. ErldrCode § 803; 5 Plan, including the Lipari, 213 Cal. App. 2d at cash benefits at 493.Spears fails to specify how this 6 issue in this statement contradicts Colia's Motion, which were deposition testimony, and in fact it is 7 paid by HNI as the not contradictory. Declarations may Plan's sponsor and only be disregarded when "it and the 8 administrator to party's deposition testimony . . . are those Plan 'contradictory and mutually 9 Participants who exclusive . . . ." Benavidez, 71 Cal. elected to waive App. 4th at 862-63. Spears' 10 certain benefits objection does not satisfy this offered by the Plan, standard. Colia confirmed that Flex 11 which included Ms. Dollars for waiving medical or dental Spears." coverage were maintained in an 12 account administered by the Benefits Committee, used for Plan purposes 13 only, and paid out in accordance with 14 the Plan. Horton Decl., Ex. B at 35:16-36:14, 72:3-8; 155:11- 15 156:21. 16 Additionally, Colia was deposed after her declaration was filed. Spears 17 cites no authority for the proposition that declarations must be stricken 18 when contradicted by later depositions, and TTNCA is aware of 19 none. See Shin, 42 Cal. 4th at 500 n. 12; Browne, 127 Cal. App. 4th 20 at 1349. 21 8. Declaration of Improper legal The statement does not constitute an Debbie Colia, 1|12, conclusion; lack of impermissible legal conclusion 22 stating: "However, foundation (Evid. because it is supported by specific if a Plan Code §§ 403, 405); facts. Cf. Guthrey, 63 Cal. App. 4th 23 Participant's Flex lack of factual or at 1119. Dollars exceeded evidentiary As the former Vice President of 24 the cost of coverage support; vague and Organizational Effectiveness for or if the Plan ambiguous; Participant waived FTNI, Colia has sufficient information 25 inadmissible about the sponsorship and medical and/or opinion (Evid. dental coverage, the administration of the Plan. She is 26 Code § 803); testifying to her personal knowledge, Plan Participant contradicts Colia's received a portion for which she adequately laid the 27 sworn deposition foundation. Evid. Code §§ 702, 800. of the Flex Dollars testimony (Exhibit as a cash benefit Moreover, Spears fails to specify how 28 5, Colia Depo., these statements supposedly lack (which I understand 56:12-21,20:19- -9- DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS TO EVIDENCE 4161-6133-6602 1 No. Evidence Spears' Objection HNCA's Response is the subject of this 23:1, 34:5-12, foundation. See Witkin, Cal. 2 Motion). HNI, as 84:1.8-85:6, 48:15- Evidence, .supra at 548-49. the Plan sponsor 24, 34:5-12, 84:18- 3 and administrator, Spears does not identify what facts 85:6, 66:24-67:14, pai