Preview
FILED BY FA^
TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
3
nhorton@orrick.com
AVALON JOHNSON FITZGERALD (STATE BAR NO. 2S^\hf^
D/EMDORSED
afitzgerald@orrick.com
4 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
5 Sacramento, CA 95814-4497
Telephone: +1 916 447 9200
6 Facsimile: +1916 329 4900
7 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
12 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
13 Plaintiff R E P L Y MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF
14 V. H E A L T H NET OF CALIFORNIA, INC.'S
MOTION AS TO WHY SPEARS' CASE
15 HEALTH NET OF CALIFORNIA, INC., a SHOULD NOT PROCEED AS A PAGA
Califomia Corporation; and Does 1 through 50, REPRESENTATIVE ACTION
16 inclusive.
Date: April 11,2019
17 Defendants. Time: 10:00 a.m.
Dept: 35
18 Judge: Hon. Alan G. Perkins
19 Complaint Filed: Aprils, 2017
FAC Filed: June 29, 2017
20
Complaint Filed: August 1, 2017
TOMAS R. ARANA, on behalf of himself, all
21 Consolidated Complaint Filed: Dec. 21, 2017
others similarly situated.
22 Plaintiff
23
V.
24 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1-50,
25 inclusive,
26 Defendant.
27
28
DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA
REPRESENTATIVE ACTION
4145-0500-8154
I. IT IS P E R F E C T L Y APPROPRIATE FOR T H E COURT TO HEAR AND GRANT
THIS MOTION
2
Spears' complaints about the propriety of this motion, or the Court's power to rule on it
3
ring hollow. Spears agreed to this motion pursuant to a stipulated order dated August 8, 2018.
4
See Stip. and Order, August 8, 2018. She stipulated to the exact motion that is now before the
5
Court, including the nature of the motion, the timing of the motion, the duration of the briefmg
6
schedule, and the relief sought. M a t 3. No doubt due process has been satisfied. See Matthews
7
V. Eldridge, 424 U.S. 319, 333 (1976) ("The fundamental requirement of due process is the
8
opportunity to be heard 'at a meaningful time and in a meaningful manner.'"). And there is no
9
doubt that the Court has the inherent authority, to "fashion . . . procedure[s] in a complex
10
litigation case to manage and control the case before it." Cottle v. Superior Court, 3 Cal. App.
II
4th 1367, 1380 (1992). Indeed, by definition, complex cases "require[] exceptional judicial
12
management to avoid placing unnecessary burdens on the court or the litigants . . . . " Cal. Rules
13
of Court, rule 3.400(a). Thus, for example, motions to strike class action allegations have been
14
permitted to address the propriety pf class certification, even though the statutes goveming
15
motions to strike (Cal. Civ. Proc. Code § 436(a), (b)) dictate that they are for use at the pleadings
16
stage. See, e.g.. In re BCBG Overtime Cases, 163 Cal. App. 4th 1293, 1299 (2008). There is
17
nothing preventing this Court from hearing this motion, and granting it.
18
II. NONE OF SPEARS' CLAIMS CAN PROCEED AS A PAGA REPRESENTATIVE
19 ACTION^
20 Spears' PAGA representative claims are limited to the following allegations: (1) prior to
21 2017 employees were not able to take their meal periods on time and were not provided with
22 second meal periods, (2) employees took rest periods late or not at all, and (3) HNCA failed to
23 include the value of cash benefits employees received when they waived medical and dental
24 benefits and certain gift cards employees received when calculating these employees' regular rate
25 of pay. See Motion § Ill.A. The first two claims are unmanageable and Spears failed to exhaust
26
27
' There is no reason not to dismiss Spears' the PAGA representative claims because they are separate and distinct
28 from Arana's, as well as other claims she asserts in this lawsuit. See Lilienthal & Fowler v. Superior Court. 12 Cal.
App. 4th 1848, 1854 (1993). Moreover, when coupled with Arana's failure to oppose the motion targeting his PAGA
claims, the Court should preclude all the PAGA claims in this lawsuit from going forward on a representative basis.
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DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA
REPRESENTATION ACTION
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her administrative obligations with the LWDA as to the third. The Court should now dismiss all
2 three.
3 A. California Law Is Clear That PAGA Representative Claims Must Be
Manageable
4
Spears' contention that manageability is not a legal requirement for PAGA representative
5
claims is contrary to the Califomia Supreme Court's Arias and Williams decisions, and numerous
6
prior decisions addressing manageability in the UCL context.
7
HNCA's motion clearly addresses the holding of Arias v. Superior Court—which simply
8
confirmed that PAGA representative actions do not need to satisfy all of the class action
9
requirements. 46 Cal. 4'*^ 969, 981 (2009). Arias did not say that unmanageable PAGA claims
10
can nonetheless proceed to trial and it acknowledged the similarities between PAGA and UCL
II
claims prior to the passage of Proposition 64. Id. Common sense dictates that PAGA claims
12
must be manageable. The Califomia Supreme Court acknowledged this reality in Williams v.
13
Superior Court, 3 Cal. 5'^ 531, 559 (2017) ("This is not to say uniform policies play no role in
14
PAGA cases; proof of a uniform policy is one way a plaintiff might seek to render trial of the
15
action manageable."). Setting aside HNCA's numerous citations to federal court decisions
16
finding that manageability is a requirement for PAGA claims. Spears ignores that Arias and
17
Williams expressly acknowledge that PAGA representative actions must be manageable.
18
Requiring that PAGA claims be manageable is in keeping with precedents addressing the
19
manageability of UCL claims, as set forth in HNCA's moving papers. Spears' attempt to
20
distinguish these precedents based on the remedies available in UCL actions versus PAGA
21
actions has no basis in the law. This argument is completely contrived and ignores that each of
22
HNCA's cases addresses manageability in the context of proving liability, not just determining
23
damages. See Bronco Wine Co. v. Frank A. Logoluso Farms, 214 Cal. App. 3d 699, (1989),
24
reh 'g denied and opinion modified (Nov. 2, 1989) (holding that "[t]he determination of whether
25
the business practice was unfair was a far more complex factual issue"); S. Bay Chevrolet v. Gen.
26
Motors Acceptance Corp., 72 Cal. App. 4th 861, 897 (1999) (holding that the "means of leaming
27
about the 365/360 method of interest calculation were not sufficiently uniform to allow
28
representative treatment"); Wilner v. Sunset Life Ins. Co., 78 Cal. App. 4th 952, 969 (2000), as
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DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA
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1 modified (Mar. 30, 2000) (acknowledging that each claims of non-party purchasers would "tum
2 on what purchasers were told by their independent agents, what documents were provided and
3 disclosed to each, and what documents each purchaser signed."). Furthermore, that Arias itself
4 referred to these precedents demonstrates that they apply to PAGA representative actions.
5 One way a PAGA representative action might be manageable is through uniform evidence
6 that can be used to prove violations for all aggrieved employees. See. Williams, 3 Cal. 5*
' ^ at 559.
7 In fact, that is what happened in Carrington v. Starbuclcs Corp., 30 Cal. App. Sth 504. In
8 Carrwg/on, "Starbucks admit[ted] to possessing a written policy" that was unlawful. Id. at 526.
9 In addition, the violations alleged in that case were limited to narrow circumstances which
10 resulted in uniform meal period violations arising from this unlawful policy. Id. at 526. But
11 Carrington clearly does not extend beyond the facts and claims at issue in that case, particularly
12 since the court specifically distinguished its holding from S. Bay Chevrolet, a pre-Proposition 64
13 UCL case, on the basis that "the evidence [in S. Bay Chevrolet] showed defendant's practices
14 "were not sufficiently uniform to allow representative treatment." Id.
15 Taken together. Arias, Williams, Carrington, and the relevant pre-Proposition 64 UCL
16 cases, demonstrate that a PAGA representative action must be manageable, particularly when, as
17 here, the plaintiff seeks to prove over 46,000 PAGA violations. Not only does Spears ignore
18 these precedents, she completely fails to follow the roadmap set out in Carrington as to how a
19 PAGA representative plaintiff must bring very narrow, carefully crafted, and manageable claims.
20 Instead, Spears tried to convince the Court that it is permissible to fish with dynamite. It isn't.
21 B. Spears' Cherry-Picked Quotes Are Insufficient To Overcome The Reality
That Her PAGA Meal And Rest Period Claims Are Unmanageable
22
23 To appreciate the misleading nature of Spears' case analysis, the Court need not look any
24 further than Spears' citation to Brown v. American Airlines, Inc., which she relies upon for the
25 proposition that "every PAGA action in some ways requires some individualized assessment
26 regarding whether a Labor Code violation has occurred." Opp'n at 8 (emphasis added). Yet
27 Spears ignores that the court in Brown found PAGA overtime claims unmanageable because
28 "[tjhere appears to be too many individualized assessments to determine PAGA violations
DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA
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1 concerning overtime pay." No. CV 10-8431 -AG (PJ WX), 2015 WL 6735217, at *4 (CD. Cal.
2 Oct. 5, 2015) (emphasis added). In fact, the only PAGA claim the Brown court found
3 manageable was a claim regarding wage statements that allegedly reflected two different pay
4 periods because the claims could be proven with uniform evidence. Id.
5 Spears fares no better when she cherry-picks dicta from other cases that did not evaluate
6 whether a PAGA action was actually manageable. See Mendoza v. Nordstrom, Inc., 2 Cal. 5^^
7 1074, 1079 (2017) (evaluating Califomia's day of rest laws); Ochoa-Hernandez v. Cjaders
8 Foods, Inc., No. C 08-2073 MHP, 2010 WL 1340777, at *5 (N.D. Cal. Apr. 2, 2010) (denying
9 motion for protective order filed by plaintiffs); Hibbs-Rines v. Seagate Techs., LLC, No. C 08-
10 05430 Sl, 2009 WL 513496, at *4 (N.D. Cal. Mar. 2, 2009) (denying a motion to strike plaintiffs
11 PAGA allegations at the pleading stage).
12 Moreover, in Spears' cited cases that were far enough along to fully consider
13 manageability on a developed record, the courts routinely ordered the plaintiff to provide
14 additional information related to how PAGA violations would be proven at trial. See Zackari v.
15 Wal-Mart Stores, Inc., 142 F. Supp. 3d 949, 960-61 (2015) (ordering plaintiff to file a trial plan
16 that "that (a) describes its compliance with the requirements of PAGA; (b) identifies the
17 "aggrieved employees" for purposes of the PAGA claim; (c) proposes a plan for the court's
18 evaluation of the aggrieved employees' claims, with citations to relevant case law; and
19 (d) describes the evidence he plans to put forth in support of his claim that each aggrieved
20 employee has suffered a violation."); Tseng v. Nordstrom, Inc., No. CVl 1-847l-CAS(MRWX),
21 2016 WL 7403288, at *6 (CD. Cal. Dec. 19, 2016) (ordering plaintiff to define the scope ofthe
22 aggrieved employees encompassed within the PAGA claims she intended to pursue at trial);
23 Mejia v. 99 Cents Only Stores, 2018 Cal. Super LEXIS 3082 (LASC April 6, 2018) (noting "[t]he
24 court will also need to spend time (sic) the parties in an effort to understand precisely how
25 plaintiffs intend to prove liability and damages, ... how the case will be tried and how long it will
26 take (keeping in mind that Dept. 31 is not a long cause courtroom") (emphasis in original). These
27 orders all underscore that a trial court must be concemed about the manageability of alleged
28 PAGA representative claims.
DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA
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1 The closest Spears comes to citing any authority which supports her argument is Plaisted
2 V. Dress Barn, Inc., No. 2:12-CV-01679-ODW, 2012 WL 4356158 (CD. Cal. Sept. 20, 2012), in
3 which the district court denied a motion for judgment on the pleadings as to plaintiffs PAGA
4 claim that was brought on the basis that plaintiff failed to move class certification.^ However,
5 this federal case is not "controlling case law" as Spears suggests (Opp'n at 8) and HNCA
6 provided a litany of opposing federal cases that support the conclusion that plaintiffs bringing
7 PAGA representative actions must demonstrate the action is manageable. See PAGA Motion at
8 13 n. 4. In any event, the Califomia Supreme Court in Arias and Williams expressly
9 acknowledged that PAGA claims must be manageable.
10 At best, the authorities to which Spears cites stand for the proposition that there is not a
11 blanket rule that can be applied in all circumstances. Instead, this Court must look to the
12 particular allegations that Spears has raised in order to determine whether her specific claims can
13 be manageably proven at trial. It is clear that upon inspection. Spears' meal and rest period
14 claims are not manageable.
15 C. Spears Asks This Court to Rely Upon Inapposite Authority, And Ignore
Controlling Precedent, The Facts of This Case And Her Own Expert
16 —
17 Spears' contends that her meal and rest period claims are manageable based on (1) her
18 misunderstanding of Carrington, (2) ignoring controlling precedent and the facts in this case and
19 (3) a misplaced reliance on the declaration of her own expert who has confirmed that he did not
20 perform the analysis she suggests in her opposition.
21 1. Carrineton Does Not Apply
22 Spears concedes (as she must) that she must individually prove each and every Labor
23 Code violation for which she intends to recover PAGA penalties. Opp'n at 8 ( "Plaintiff will
24 have to prove Labor Code violations with respect to each and every individual on whose behalf
25 plaintiff seeks to recover civil penalties for the govemment."). Carrington, the principle case
26
^ It is perhaps not surprising that a number of federal cases came out the way they did based on the claims that were
27 asserted. For example, Plaisted, which was a seating case, emphasized that every PAGA action in some way requires
some individualized assessment regarding whether a Labor Code violation has occurred. 2012 WL 4356158, at *2
28 (emphasis in original). But here, it is undisputed that Spears will not have "some" individualized inquiries. Instead,
she will have to individually prove over 46,000 alleged meal period violations and an untold number of alleged rest
period violations. This is too many. See Brown, 2015 WL 6735217, at *4.
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1 Spears relies upon, does not assist her in her contention that proving her PAGA representative
2 claims will be manageable. As pointed out above, the holding in Carrington was premised on an
3 unlawful policy and a very narrow set of claims that were based on that unlawful policy.
4 Carrington, 30 Cal. App. 5th at 523-524. That is not the case here. And comparing the number
5 of declarations submitted in Carrington {see Opp'n at 13:19-21) does nothing to make
6 Carrington more relevant, particularly because the substance of the declarations HNCA has
7 submitted, none of which Spears disputes, underscores that proving her meal and rest period
8 PAGA claims will require many individualized and nuanced factual adjudications.
9 Because ofthe unique facts in Carrington, which were all premised on an unlawfiil
10 policy, the Carrington court approved relying on statistical analysis of timekeeping and payroll
11 records to prove PAGA claims because the expert was only asked to identify shifts meeting the
12 narrow set of circumstances that caused uniform meal period violations arising out of Starbucks'
13 unlawful policy. 30 Cal. App. 5th at 514.
14 Unlike in Carrington, however, the analysis in this case starts with lawful meal and rest
15 period policies. Spears admits that HNCA's meal and rest period policies were lawful. Long
16 Decl. H 10, Ex. 1 (Spears Dep. Tr. 40:6-42:1, 202:6-12). Her admission that HNCA had a lawful
17 policy defeats her reliance on Carrington and her argument that the Court can rely on a statistical
18 analysis alone to prove her PAGA meal period claims.^ And this makes sense: while records may
19 indicate a PAGA violation, the actual evidence may prove otherwise.
20 2. Under Controlling Precedent One Must Look Beyond The Records
21 The Califomia Supreme Court has made it abundantly clear that employers are not
22 required to force employees to take their breaks. See Brinker, 53 Cal. 4th at 1040. If the
23 employer provides the opportunity for its employees to take a legally compliant meal period, but
24 the employee chooses not to do so, there is no violation. Id. at 1040-41. The same is true of rest
25 periods. Augustus v. ABM Security Servs., Inc., 2 Cal. 5th 257, 269 (2016) (citing Brinker, 53
26 Cal.4^'' at 1038-39). Absent a uniform unlawful policy or practice that is causing Labor Code
27
28 ^ One does not know what she argues about the rest period claims because despite knowing this motion was coming
since the first CMC in this case over two years ago and having stipulated to its filing nearly eight months ago, she is
still "analyzing" the claim. Opp'n at 14.
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1 violation, a plaintiffs theory of recovery is not amendable to common proof at trial, particularly
2 when a statistical sample does not cure that defect. See Dailey v. Sears, Roebuck & Co., 214 Cal.
3 App. 4th 974 (2013), as modified (Mar. 27, 2013); see also Wright v. Renzenberger, Inc., 656 F.
4 App'x 835, 838 (9th Cir. 2016) (applying Brinker and holding that "[bjecause the policies on their
5 face permit rest breaks. Appellants can establish liability only by showing that, by operation of
6 the policies, they were not permitted to take ten consecutive minutes of break per four hours").
7 So for each of the alleged 46,195 violations Spears intends to prove at trial (as well as the untold
8 number of alleged rest period violations which are still "in the process of being analyzed"), she
9 carries the burden of proving that employees were actually denied an opportunity to take a
10 compliant meal or rest period in each and every instance and to do so, she will have to rely upon
11 evidence beyond the records.
12 3. The Facts Here Prove That Spears' Claims Are Unmanageable
13 HNCA's moving papers, as well as the uncontroverted evidence it provided this Court in
14 its opposition to Plaintiffs' Motion for Class Certification have highlighted the myriad of ways in
15 which ITNCA implemented its lawful meal and rest period policies, and how (and whether)
16 employees complied with these policies. The declarations submitted by HNCA (and again, none
17 of which Spears has disputed) paint a vivid picture that while timekeeping and payroll records
18 may indicate one thing, the reality in this case is very different - and for many different and
19 individualized reasons.
20 For example, Martha Contreras, a Customer Service Representative 111, admits that she
21 voluntarily stayed on phone calls with providers or members beyond the fifth hour of work before
22 taking her meal period, despite knowing she could request a call back to go to lunch on time.
23 Decl. of Martha Contreras TI 14. Other Customer Service Representatives also admit to
24 voluntarily working into the fifth hour before taking their meal period despite understanding there
25 were procedures in place to allow them to go to lunch on time. Decl. of Christalex Mendoza^} 25;
26 Decl. of Krisha Richey \ 13; Decl. of Randy Rohlfs H 12. So while Ms. Contreras',
27 Ms. Mendoza's and Mr. Rohlfs' time records might indicate violations, in reality HNCA is not
28 liable for PAGA penalties.
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1 The timekeeping records of non-Customer Service Representative employees, also do not
2 prove a PAGA violations. Nick Keo, a Provider Auditor, acknowledges that he has always been
3 provided meal and rest periods pursuant to HNCA's policies, however, he admits there were
4 times when he voluntarily started his meal period after working five hours. Decl. of Nick Keo,
5 ^19. Additionally, Tracy Raitt, a Project Coordinator, admits that she accidentally clocked back
6 in early from meal periods on several occasions, resulting in her timekeeping records reflecting a
7 short meal period. Decl. of Tracy Raitt, ^ 10. Again while the records might indicate one thing,
8 in reality there is no Labor Code violation.
9 Furthermore, other testimony confirms that proving PAGA violations in this case may be
10 impossible. Maria del Pilar Perez, one of the potentially aggrieved employees, testified during
11 her deposition that recreating her tasks on any given day to determine if she missed a meal or rest
12 period and, if so, why she missed a meal or rest period would be impossible, particularly since
13 she was working from home and falsifying her time records to show compliant meal periods.
14 Decl. of Tim Long ISO of HNCA's Reply ("Long Reply Decl."), Ex. A (108:1 l - l 11:1).
15 This handful of examples illustrates that the timekeeping and payroll records do not tell
16 the whole story and cannot be used to bypass an employee-by-employee analysis for each and
17 every meal and rest period Spears intends to prove at trial.''
18 4. Spears' Expert Has Confirmed That The Records Do Not Tell The
Whole Story
19 ^
20 Were there any doubt that the timekeeping and payroll records in this case cannot be
21 relied upon alone to prove PAGA violations, one only has to consider the testimony of Spears'
22 own expert. Her expert agrees with HNCA that these records do not paint the whole picture.
23 Long Reply Decl., Ex. B (29:3-30:9). And despite representations by Spears in her opposition
24 brief to the contrary (Opp'n at 14-15.), her expert has confirmed that he did not opine (and was
25
" To the extent that Spears suggests that she can move forward with her meal and rest period PAGA claims on the
26 theory that HNCA failed to inform employees on how to recover a meal or rest period penalty (Opp'n at 14.) her
analysis is equally flawed. First, Spears again asks the Court to ignore the undisputed factual record submitted to the
27 Court. HNCA's policy was to always pay penalties when due, and HNCA had a method for doing so. See Herman
Decl., Ex. 3 (Rodes PMK. Dep. Tr. 88:21-89:4). Furthermore, HNCA supervisors were "were instructed on the
28 requirements of Califomia and the penalty, and they were instructed on how to process a meal period penalty" by
adding a one-hour DTO payment. Id. 91:8-16; see also Decl. of Lucinda Watkins H 20. Second, whether a violation
needs to be reported begs the question as to whether a violation even occurred.
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1 not asked to opine) as to whether any of the records he reviewed actually proved violations of the
2 California Labor Code. Long Reply Decl., Ex. B (29:3-32:19; 34:21-35:15). Even if he had been
3 asked to render such an opinion. Spears' expert further testified that he lacks the requisite
4 expertise and was not provided sufficient information to opine on whether actual violations
5 occurred to render such an opinion, /c^. (22:10-19; 25:2-26:25; 36:2-19). For example, he did not
6 review any declarations or deposition transcripts of allegedly aggrieved employees, nor did he
7 interview any witnesses. Id. (19:24-20:3). He also was not aware of the content of any relevant
8 policies, and did not account for varying work schedules, manual time entries, or differing job
9 duties in his analysis. M (21:12-22:6). Simply put. Spears'expert merely idenfified instances in
10 the timekeeping and payroll records where a PAGA violation may have occurred, not whether a
11 violation in fact occurred.
12 To recover PAGA penalties at trial. Spears will have to come forward with additional
13 evidence (which she has not identified) to prove violations. Adjudicating that evidence will
14 require an employee-by-employee, workweek-by-workweek analysis, involving a myriad of
15 individualized situations. Spears has offered no manageable method for conducting such an
16 analysis, nor can she.
17 m. SPEARS SHE FAILED TO GIVE ADEQUATE NOTICE OF HER GIFT CARD
AND CASH BENEFIT CLAIMS IN HER LWDA L E T T E R
18
19 Spears contends that her LWDA letter gave appropriate notice, but the language quoted
20 from her notice {see Opp'n at 6) provides absolutely no notice of the gift card or cash benefit
21 claims she wants to pursue on a representative basis. It is indisputable that Spears' LWDA notice
22 (or even the original complaint she filed in this lawsuit) makes no reference to gift cards. Long
23 Decl. X\ 2-3, Ex. A, C. For similar reasons, her cash benefit claims fails. The closest reference in
24 her LWDA letter as to this claim is the reference to a "non-discretionary incentive program
25 provided all employees paid on an hourly basis with incentive compensation when the employees
26 met the various performance goals set by [HNCA], including but not limited to, health benefits
27 cash out options." (Emphasis added.) Long Decl. ^ 2, Ex. A at T| 10. This statement cannot be
28 reasonably construed as an allegation that a benefit payment, which is tied to the administration
. ^9-
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of a health and welfare plan, and not to employee performance {see Motion at 10) should have
2 been included in the regular rate. A plan benefit is not tied to employee work performance.
3 Unlike the seating claims at issue in Greew V. 5onA:o//4/77enca, A^./4., 634 Fed.Appx. 188, 191
4 (9th Cir. 2015) (holding that notice stating "plaintiffs could use a seat in their position" was
5 sufficient for "simple seating claim"), there are multiple factual and legal predicates that may give
6 rise to a regular rate claim. Thus, this is not a question of a failure to include all facts relating to
7 this claim, it is a failure to include any facts (or at best, misleading and inaccurate facts) that
8 would put the LWDA (or HNCA) on notice of what her benefits claim actually is and why it
9 would constitute a PAGA violation. See Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824,
10 837-38 (2018), review denied {Veh. 20, 2019) (holding that the lack of facts in the notice "did not
allow the LWDA 'to intelligently assess the seriousness of the alleged violations' or give the
12 employer enough information 'to determine what policies or practices are being complained of so
13 as to know whether to fold or fight.'"). On these facts. Spears' PAGA claims regarding and gift
14 cards and cash benefits cannot proceed. Id.; see also Khan v. Dunn-Edwards Corp., 19 Cal. App.
15 5"^ 804, 810 (2018); Cal. Lab. Code § 2699.3(a)( 1).
16 IV. CONCLUSION
17 This Court should not allow Spears' meal and rest break PAGA representative claims to
18 go forward because they are unmanageable. Spears' gift card and cash benefit PAGA
19 representative claims should not go forward either because she failed her exhaustion obligations
20 before proceeding to court. The Court should grant HNCA's motion in its entirety.
21 Dated: March 15, 2019 ORRICK, HERRINGTON & SUTCLIFFE LLP
22
23 By:
TIMOTHY J. LONG
2^ Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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FILED BY FA^ TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) 3 nhorton@orrick.com AVALON JOHNSON FITZGERALD (STATE BAR NO. 2S^\hf^ D/EMDORSED afitzgerald@orrick.com 4 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 5 Sacramento, CA 95814-4497 Telephone: +1 916 447 9200 6 Facsimile: +1916 329 4900 7 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 12 of herself and on behalf of all persons similarly CU-OE-GDS situated, 13 Plaintiff R E P L Y MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 14 V. H E A L T H NET OF CALIFORNIA, INC.'S MOTION AS TO WHY SPEARS' CASE 15 HEALTH NET OF CALIFORNIA, INC., a SHOULD NOT PROCEED AS A PAGA Califomia Corporation; and Does 1 through 50, REPRESENTATIVE ACTION 16 inclusive. Date: April 11,2019 17 Defendants. Time: 10:00 a.m. Dept: 35 18 Judge: Hon. Alan G. Perkins 19 Complaint Filed: Aprils, 2017 FAC Filed: June 29, 2017 20 Complaint Filed: August 1, 2017 TOMAS R. ARANA, on behalf of himself, all 21 Consolidated Complaint Filed: Dec. 21, 2017 others similarly situated. 22 Plaintiff 23 V. 24 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1-50, 25 inclusive, 26 Defendant. 27 28 DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 I. IT IS P E R F E C T L Y APPROPRIATE FOR T H E COURT TO HEAR AND GRANT THIS MOTION 2 Spears' complaints about the propriety of this motion, or the Court's power to rule on it 3 ring hollow. Spears agreed to this motion pursuant to a stipulated order dated August 8, 2018. 4 See Stip. and Order, August 8, 2018. She stipulated to the exact motion that is now before the 5 Court, including the nature of the motion, the timing of the motion, the duration of the briefmg 6 schedule, and the relief sought. M a t 3. No doubt due process has been satisfied. See Matthews 7 V. Eldridge, 424 U.S. 319, 333 (1976) ("The fundamental requirement of due process is the 8 opportunity to be heard 'at a meaningful time and in a meaningful manner.'"). And there is no 9 doubt that the Court has the inherent authority, to "fashion . . . procedure[s] in a complex 10 litigation case to manage and control the case before it." Cottle v. Superior Court, 3 Cal. App. II 4th 1367, 1380 (1992). Indeed, by definition, complex cases "require[] exceptional judicial 12 management to avoid placing unnecessary burdens on the court or the litigants . . . . " Cal. Rules 13 of Court, rule 3.400(a). Thus, for example, motions to strike class action allegations have been 14 permitted to address the propriety pf class certification, even though the statutes goveming 15 motions to strike (Cal. Civ. Proc. Code § 436(a), (b)) dictate that they are for use at the pleadings 16 stage. See, e.g.. In re BCBG Overtime Cases, 163 Cal. App. 4th 1293, 1299 (2008). There is 17 nothing preventing this Court from hearing this motion, and granting it. 18 II. NONE OF SPEARS' CLAIMS CAN PROCEED AS A PAGA REPRESENTATIVE 19 ACTION^ 20 Spears' PAGA representative claims are limited to the following allegations: (1) prior to 21 2017 employees were not able to take their meal periods on time and were not provided with 22 second meal periods, (2) employees took rest periods late or not at all, and (3) HNCA failed to 23 include the value of cash benefits employees received when they waived medical and dental 24 benefits and certain gift cards employees received when calculating these employees' regular rate 25 of pay. See Motion § Ill.A. The first two claims are unmanageable and Spears failed to exhaust 26 27 ' There is no reason not to dismiss Spears' the PAGA representative claims because they are separate and distinct 28 from Arana's, as well as other claims she asserts in this lawsuit. See Lilienthal & Fowler v. Superior Court. 12 Cal. App. 4th 1848, 1854 (1993). Moreover, when coupled with Arana's failure to oppose the motion targeting his PAGA claims, the Court should preclude all the PAGA claims in this lawsuit from going forward on a representative basis. -I- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATION ACTION 4145-0500-8154 her administrative obligations with the LWDA as to the third. The Court should now dismiss all 2 three. 3 A. California Law Is Clear That PAGA Representative Claims Must Be Manageable 4 Spears' contention that manageability is not a legal requirement for PAGA representative 5 claims is contrary to the Califomia Supreme Court's Arias and Williams decisions, and numerous 6 prior decisions addressing manageability in the UCL context. 7 HNCA's motion clearly addresses the holding of Arias v. Superior Court—which simply 8 confirmed that PAGA representative actions do not need to satisfy all of the class action 9 requirements. 46 Cal. 4'*^ 969, 981 (2009). Arias did not say that unmanageable PAGA claims 10 can nonetheless proceed to trial and it acknowledged the similarities between PAGA and UCL II claims prior to the passage of Proposition 64. Id. Common sense dictates that PAGA claims 12 must be manageable. The Califomia Supreme Court acknowledged this reality in Williams v. 13 Superior Court, 3 Cal. 5'^ 531, 559 (2017) ("This is not to say uniform policies play no role in 14 PAGA cases; proof of a uniform policy is one way a plaintiff might seek to render trial of the 15 action manageable."). Setting aside HNCA's numerous citations to federal court decisions 16 finding that manageability is a requirement for PAGA claims. Spears ignores that Arias and 17 Williams expressly acknowledge that PAGA representative actions must be manageable. 18 Requiring that PAGA claims be manageable is in keeping with precedents addressing the 19 manageability of UCL claims, as set forth in HNCA's moving papers. Spears' attempt to 20 distinguish these precedents based on the remedies available in UCL actions versus PAGA 21 actions has no basis in the law. This argument is completely contrived and ignores that each of 22 HNCA's cases addresses manageability in the context of proving liability, not just determining 23 damages. See Bronco Wine Co. v. Frank A. Logoluso Farms, 214 Cal. App. 3d 699, (1989), 24 reh 'g denied and opinion modified (Nov. 2, 1989) (holding that "[t]he determination of whether 25 the business practice was unfair was a far more complex factual issue"); S. Bay Chevrolet v. Gen. 26 Motors Acceptance Corp., 72 Cal. App. 4th 861, 897 (1999) (holding that the "means of leaming 27 about the 365/360 method of interest calculation were not sufficiently uniform to allow 28 representative treatment"); Wilner v. Sunset Life Ins. Co., 78 Cal. App. 4th 952, 969 (2000), as -2- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 modified (Mar. 30, 2000) (acknowledging that each claims of non-party purchasers would "tum 2 on what purchasers were told by their independent agents, what documents were provided and 3 disclosed to each, and what documents each purchaser signed."). Furthermore, that Arias itself 4 referred to these precedents demonstrates that they apply to PAGA representative actions. 5 One way a PAGA representative action might be manageable is through uniform evidence 6 that can be used to prove violations for all aggrieved employees. See. Williams, 3 Cal. 5* ' ^ at 559. 7 In fact, that is what happened in Carrington v. Starbuclcs Corp., 30 Cal. App. Sth 504. In 8 Carrwg/on, "Starbucks admit[ted] to possessing a written policy" that was unlawful. Id. at 526. 9 In addition, the violations alleged in that case were limited to narrow circumstances which 10 resulted in uniform meal period violations arising from this unlawful policy. Id. at 526. But 11 Carrington clearly does not extend beyond the facts and claims at issue in that case, particularly 12 since the court specifically distinguished its holding from S. Bay Chevrolet, a pre-Proposition 64 13 UCL case, on the basis that "the evidence [in S. Bay Chevrolet] showed defendant's practices 14 "were not sufficiently uniform to allow representative treatment." Id. 15 Taken together. Arias, Williams, Carrington, and the relevant pre-Proposition 64 UCL 16 cases, demonstrate that a PAGA representative action must be manageable, particularly when, as 17 here, the plaintiff seeks to prove over 46,000 PAGA violations. Not only does Spears ignore 18 these precedents, she completely fails to follow the roadmap set out in Carrington as to how a 19 PAGA representative plaintiff must bring very narrow, carefully crafted, and manageable claims. 20 Instead, Spears tried to convince the Court that it is permissible to fish with dynamite. It isn't. 21 B. Spears' Cherry-Picked Quotes Are Insufficient To Overcome The Reality That Her PAGA Meal And Rest Period Claims Are Unmanageable 22 23 To appreciate the misleading nature of Spears' case analysis, the Court need not look any 24 further than Spears' citation to Brown v. American Airlines, Inc., which she relies upon for the 25 proposition that "every PAGA action in some ways requires some individualized assessment 26 regarding whether a Labor Code violation has occurred." Opp'n at 8 (emphasis added). Yet 27 Spears ignores that the court in Brown found PAGA overtime claims unmanageable because 28 "[tjhere appears to be too many individualized assessments to determine PAGA violations DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 concerning overtime pay." No. CV 10-8431 -AG (PJ WX), 2015 WL 6735217, at *4 (CD. Cal. 2 Oct. 5, 2015) (emphasis added). In fact, the only PAGA claim the Brown court found 3 manageable was a claim regarding wage statements that allegedly reflected two different pay 4 periods because the claims could be proven with uniform evidence. Id. 5 Spears fares no better when she cherry-picks dicta from other cases that did not evaluate 6 whether a PAGA action was actually manageable. See Mendoza v. Nordstrom, Inc., 2 Cal. 5^^ 7 1074, 1079 (2017) (evaluating Califomia's day of rest laws); Ochoa-Hernandez v. Cjaders 8 Foods, Inc., No. C 08-2073 MHP, 2010 WL 1340777, at *5 (N.D. Cal. Apr. 2, 2010) (denying 9 motion for protective order filed by plaintiffs); Hibbs-Rines v. Seagate Techs., LLC, No. C 08- 10 05430 Sl, 2009 WL 513496, at *4 (N.D. Cal. Mar. 2, 2009) (denying a motion to strike plaintiffs 11 PAGA allegations at the pleading stage). 12 Moreover, in Spears' cited cases that were far enough along to fully consider 13 manageability on a developed record, the courts routinely ordered the plaintiff to provide 14 additional information related to how PAGA violations would be proven at trial. See Zackari v. 15 Wal-Mart Stores, Inc., 142 F. Supp. 3d 949, 960-61 (2015) (ordering plaintiff to file a trial plan 16 that "that (a) describes its compliance with the requirements of PAGA; (b) identifies the 17 "aggrieved employees" for purposes of the PAGA claim; (c) proposes a plan for the court's 18 evaluation of the aggrieved employees' claims, with citations to relevant case law; and 19 (d) describes the evidence he plans to put forth in support of his claim that each aggrieved 20 employee has suffered a violation."); Tseng v. Nordstrom, Inc., No. CVl 1-847l-CAS(MRWX), 21 2016 WL 7403288, at *6 (CD. Cal. Dec. 19, 2016) (ordering plaintiff to define the scope ofthe 22 aggrieved employees encompassed within the PAGA claims she intended to pursue at trial); 23 Mejia v. 99 Cents Only Stores, 2018 Cal. Super LEXIS 3082 (LASC April 6, 2018) (noting "[t]he 24 court will also need to spend time (sic) the parties in an effort to understand precisely how 25 plaintiffs intend to prove liability and damages, ... how the case will be tried and how long it will 26 take (keeping in mind that Dept. 31 is not a long cause courtroom") (emphasis in original). These 27 orders all underscore that a trial court must be concemed about the manageability of alleged 28 PAGA representative claims. DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 The closest Spears comes to citing any authority which supports her argument is Plaisted 2 V. Dress Barn, Inc., No. 2:12-CV-01679-ODW, 2012 WL 4356158 (CD. Cal. Sept. 20, 2012), in 3 which the district court denied a motion for judgment on the pleadings as to plaintiffs PAGA 4 claim that was brought on the basis that plaintiff failed to move class certification.^ However, 5 this federal case is not "controlling case law" as Spears suggests (Opp'n at 8) and HNCA 6 provided a litany of opposing federal cases that support the conclusion that plaintiffs bringing 7 PAGA representative actions must demonstrate the action is manageable. See PAGA Motion at 8 13 n. 4. In any event, the Califomia Supreme Court in Arias and Williams expressly 9 acknowledged that PAGA claims must be manageable. 10 At best, the authorities to which Spears cites stand for the proposition that there is not a 11 blanket rule that can be applied in all circumstances. Instead, this Court must look to the 12 particular allegations that Spears has raised in order to determine whether her specific claims can 13 be manageably proven at trial. It is clear that upon inspection. Spears' meal and rest period 14 claims are not manageable. 15 C. Spears Asks This Court to Rely Upon Inapposite Authority, And Ignore Controlling Precedent, The Facts of This Case And Her Own Expert 16 — 17 Spears' contends that her meal and rest period claims are manageable based on (1) her 18 misunderstanding of Carrington, (2) ignoring controlling precedent and the facts in this case and 19 (3) a misplaced reliance on the declaration of her own expert who has confirmed that he did not 20 perform the analysis she suggests in her opposition. 21 1. Carrineton Does Not Apply 22 Spears concedes (as she must) that she must individually prove each and every Labor 23 Code violation for which she intends to recover PAGA penalties. Opp'n at 8 ( "Plaintiff will 24 have to prove Labor Code violations with respect to each and every individual on whose behalf 25 plaintiff seeks to recover civil penalties for the govemment."). Carrington, the principle case 26 ^ It is perhaps not surprising that a number of federal cases came out the way they did based on the claims that were 27 asserted. For example, Plaisted, which was a seating case, emphasized that every PAGA action in some way requires some individualized assessment regarding whether a Labor Code violation has occurred. 2012 WL 4356158, at *2 28 (emphasis in original). But here, it is undisputed that Spears will not have "some" individualized inquiries. Instead, she will have to individually prove over 46,000 alleged meal period violations and an untold number of alleged rest period violations. This is too many. See Brown, 2015 WL 6735217, at *4. ;^5- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 Spears relies upon, does not assist her in her contention that proving her PAGA representative 2 claims will be manageable. As pointed out above, the holding in Carrington was premised on an 3 unlawful policy and a very narrow set of claims that were based on that unlawful policy. 4 Carrington, 30 Cal. App. 5th at 523-524. That is not the case here. And comparing the number 5 of declarations submitted in Carrington {see Opp'n at 13:19-21) does nothing to make 6 Carrington more relevant, particularly because the substance of the declarations HNCA has 7 submitted, none of which Spears disputes, underscores that proving her meal and rest period 8 PAGA claims will require many individualized and nuanced factual adjudications. 9 Because ofthe unique facts in Carrington, which were all premised on an unlawfiil 10 policy, the Carrington court approved relying on statistical analysis of timekeeping and payroll 11 records to prove PAGA claims because the expert was only asked to identify shifts meeting the 12 narrow set of circumstances that caused uniform meal period violations arising out of Starbucks' 13 unlawful policy. 30 Cal. App. 5th at 514. 14 Unlike in Carrington, however, the analysis in this case starts with lawful meal and rest 15 period policies. Spears admits that HNCA's meal and rest period policies were lawful. Long 16 Decl. H 10, Ex. 1 (Spears Dep. Tr. 40:6-42:1, 202:6-12). Her admission that HNCA had a lawful 17 policy defeats her reliance on Carrington and her argument that the Court can rely on a statistical 18 analysis alone to prove her PAGA meal period claims.^ And this makes sense: while records may 19 indicate a PAGA violation, the actual evidence may prove otherwise. 20 2. Under Controlling Precedent One Must Look Beyond The Records 21 The Califomia Supreme Court has made it abundantly clear that employers are not 22 required to force employees to take their breaks. See Brinker, 53 Cal. 4th at 1040. If the 23 employer provides the opportunity for its employees to take a legally compliant meal period, but 24 the employee chooses not to do so, there is no violation. Id. at 1040-41. The same is true of rest 25 periods. Augustus v. ABM Security Servs., Inc., 2 Cal. 5th 257, 269 (2016) (citing Brinker, 53 26 Cal.4^'' at 1038-39). Absent a uniform unlawful policy or practice that is causing Labor Code 27 28 ^ One does not know what she argues about the rest period claims because despite knowing this motion was coming since the first CMC in this case over two years ago and having stipulated to its filing nearly eight months ago, she is still "analyzing" the claim. Opp'n at 14. -6- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 violation, a plaintiffs theory of recovery is not amendable to common proof at trial, particularly 2 when a statistical sample does not cure that defect. See Dailey v. Sears, Roebuck & Co., 214 Cal. 3 App. 4th 974 (2013), as modified (Mar. 27, 2013); see also Wright v. Renzenberger, Inc., 656 F. 4 App'x 835, 838 (9th Cir. 2016) (applying Brinker and holding that "[bjecause the policies on their 5 face permit rest breaks. Appellants can establish liability only by showing that, by operation of 6 the policies, they were not permitted to take ten consecutive minutes of break per four hours"). 7 So for each of the alleged 46,195 violations Spears intends to prove at trial (as well as the untold 8 number of alleged rest period violations which are still "in the process of being analyzed"), she 9 carries the burden of proving that employees were actually denied an opportunity to take a 10 compliant meal or rest period in each and every instance and to do so, she will have to rely upon 11 evidence beyond the records. 12 3. The Facts Here Prove That Spears' Claims Are Unmanageable 13 HNCA's moving papers, as well as the uncontroverted evidence it provided this Court in 14 its opposition to Plaintiffs' Motion for Class Certification have highlighted the myriad of ways in 15 which ITNCA implemented its lawful meal and rest period policies, and how (and whether) 16 employees complied with these policies. The declarations submitted by HNCA (and again, none 17 of which Spears has disputed) paint a vivid picture that while timekeeping and payroll records 18 may indicate one thing, the reality in this case is very different - and for many different and 19 individualized reasons. 20 For example, Martha Contreras, a Customer Service Representative 111, admits that she 21 voluntarily stayed on phone calls with providers or members beyond the fifth hour of work before 22 taking her meal period, despite knowing she could request a call back to go to lunch on time. 23 Decl. of Martha Contreras TI 14. Other Customer Service Representatives also admit to 24 voluntarily working into the fifth hour before taking their meal period despite understanding there 25 were procedures in place to allow them to go to lunch on time. Decl. of Christalex Mendoza^} 25; 26 Decl. of Krisha Richey \ 13; Decl. of Randy Rohlfs H 12. So while Ms. Contreras', 27 Ms. Mendoza's and Mr. Rohlfs' time records might indicate violations, in reality HNCA is not 28 liable for PAGA penalties. -7- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 The timekeeping records of non-Customer Service Representative employees, also do not 2 prove a PAGA violations. Nick Keo, a Provider Auditor, acknowledges that he has always been 3 provided meal and rest periods pursuant to HNCA's policies, however, he admits there were 4 times when he voluntarily started his meal period after working five hours. Decl. of Nick Keo, 5 ^19. Additionally, Tracy Raitt, a Project Coordinator, admits that she accidentally clocked back 6 in early from meal periods on several occasions, resulting in her timekeeping records reflecting a 7 short meal period. Decl. of Tracy Raitt, ^ 10. Again while the records might indicate one thing, 8 in reality there is no Labor Code violation. 9 Furthermore, other testimony confirms that proving PAGA violations in this case may be 10 impossible. Maria del Pilar Perez, one of the potentially aggrieved employees, testified during 11 her deposition that recreating her tasks on any given day to determine if she missed a meal or rest 12 period and, if so, why she missed a meal or rest period would be impossible, particularly since 13 she was working from home and falsifying her time records to show compliant meal periods. 14 Decl. of Tim Long ISO of HNCA's Reply ("Long Reply Decl."), Ex. A (108:1 l - l 11:1). 15 This handful of examples illustrates that the timekeeping and payroll records do not tell 16 the whole story and cannot be used to bypass an employee-by-employee analysis for each and 17 every meal and rest period Spears intends to prove at trial.'' 18 4. Spears' Expert Has Confirmed That The Records Do Not Tell The Whole Story 19 ^ 20 Were there any doubt that the timekeeping and payroll records in this case cannot be 21 relied upon alone to prove PAGA violations, one only has to consider the testimony of Spears' 22 own expert. Her expert agrees with HNCA that these records do not paint the whole picture. 23 Long Reply Decl., Ex. B (29:3-30:9). And despite representations by Spears in her opposition 24 brief to the contrary (Opp'n at 14-15.), her expert has confirmed that he did not opine (and was 25 " To the extent that Spears suggests that she can move forward with her meal and rest period PAGA claims on the 26 theory that HNCA failed to inform employees on how to recover a meal or rest period penalty (Opp'n at 14.) her analysis is equally flawed. First, Spears again asks the Court to ignore the undisputed factual record submitted to the 27 Court. HNCA's policy was to always pay penalties when due, and HNCA had a method for doing so. See Herman Decl., Ex. 3 (Rodes PMK. Dep. Tr. 88:21-89:4). Furthermore, HNCA supervisors were "were instructed on the 28 requirements of Califomia and the penalty, and they were instructed on how to process a meal period penalty" by adding a one-hour DTO payment. Id. 91:8-16; see also Decl. of Lucinda Watkins H 20. Second, whether a violation needs to be reported begs the question as to whether a violation even occurred. -8- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 1 not asked to opine) as to whether any of the records he reviewed actually proved violations of the 2 California Labor Code. Long Reply Decl., Ex. B (29:3-32:19; 34:21-35:15). Even if he had been 3 asked to render such an opinion. Spears' expert further testified that he lacks the requisite 4 expertise and was not provided sufficient information to opine on whether actual violations 5 occurred to render such an opinion, /c^. (22:10-19; 25:2-26:25; 36:2-19). For example, he did not 6 review any declarations or deposition transcripts of allegedly aggrieved employees, nor did he 7 interview any witnesses. Id. (19:24-20:3). He also was not aware of the content of any relevant 8 policies, and did not account for varying work schedules, manual time entries, or differing job 9 duties in his analysis. M (21:12-22:6). Simply put. Spears'expert merely idenfified instances in 10 the timekeeping and payroll records where a PAGA violation may have occurred, not whether a 11 violation in fact occurred. 12 To recover PAGA penalties at trial. Spears will have to come forward with additional 13 evidence (which she has not identified) to prove violations. Adjudicating that evidence will 14 require an employee-by-employee, workweek-by-workweek analysis, involving a myriad of 15 individualized situations. Spears has offered no manageable method for conducting such an 16 analysis, nor can she. 17 m. SPEARS SHE FAILED TO GIVE ADEQUATE NOTICE OF HER GIFT CARD AND CASH BENEFIT CLAIMS IN HER LWDA L E T T E R 18 19 Spears contends that her LWDA letter gave appropriate notice, but the language quoted 20 from her notice {see Opp'n at 6) provides absolutely no notice of the gift card or cash benefit 21 claims she wants to pursue on a representative basis. It is indisputable that Spears' LWDA notice 22 (or even the original complaint she filed in this lawsuit) makes no reference to gift cards. Long 23 Decl. X\ 2-3, Ex. A, C. For similar reasons, her cash benefit claims fails. The closest reference in 24 her LWDA letter as to this claim is the reference to a "non-discretionary incentive program 25 provided all employees paid on an hourly basis with incentive compensation when the employees 26 met the various performance goals set by [HNCA], including but not limited to, health benefits 27 cash out options." (Emphasis added.) Long Decl. ^ 2, Ex. A at T| 10. This statement cannot be 28 reasonably construed as an allegation that a benefit payment, which is tied to the administration . ^9- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154 of a health and welfare plan, and not to employee performance {see Motion at 10) should have 2 been included in the regular rate. A plan benefit is not tied to employee work performance. 3 Unlike the seating claims at issue in Greew V. 5onA:o//4/77enca, A^./4., 634 Fed.Appx. 188, 191 4 (9th Cir. 2015) (holding that notice stating "plaintiffs could use a seat in their position" was 5 sufficient for "simple seating claim"), there are multiple factual and legal predicates that may give 6 rise to a regular rate claim. Thus, this is not a question of a failure to include all facts relating to 7 this claim, it is a failure to include any facts (or at best, misleading and inaccurate facts) that 8 would put the LWDA (or HNCA) on notice of what her benefits claim actually is and why it 9 would constitute a PAGA violation. See Brown v. Ralphs Grocery Co., 28 Cal. App. 5th 824, 10 837-38 (2018), review denied {Veh. 20, 2019) (holding that the lack of facts in the notice "did not allow the LWDA 'to intelligently assess the seriousness of the alleged violations' or give the 12 employer enough information 'to determine what policies or practices are being complained of so 13 as to know whether to fold or fight.'"). On these facts. Spears' PAGA claims regarding and gift 14 cards and cash benefits cannot proceed. Id.; see also Khan v. Dunn-Edwards Corp., 19 Cal. App. 15 5"^ 804, 810 (2018); Cal. Lab. Code § 2699.3(a)( 1). 16 IV. CONCLUSION 17 This Court should not allow Spears' meal and rest break PAGA representative claims to 18 go forward because they are unmanageable. Spears' gift card and cash benefit PAGA 19 representative claims should not go forward either because she failed her exhaustion obligations 20 before proceeding to court. The Court should grant HNCA's motion in its entirety. 21 Dated: March 15, 2019 ORRICK, HERRINGTON & SUTCLIFFE LLP 22 23 By: TIMOTHY J. LONG 2^ Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 25 26 27 28 -10- DEFENDANT'S REPLY IN SUPPORT OF MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 4145-0500-8154