Preview
Timothy J. Long (SBN 137591)
longt@gtlaw.com
FiLEO/EMOOBSED
2 Samuel S. Hyde (SBN 327065)
hydes@gtlaw.com OCT 0 6 2020
3 GREENBERG TRAURIG, LLP
1201 K Street, Suite 1100 By:. 1. nrnwfhpr
4 Sacramento, Califomia 95814 Deputy Clerk
Telephone: 916.442.1111
5 Facsimile: 916.448.l709
6 Rowena Santos (SBN 210185)
santosro@gtlaw.com
7 GREENBERG TRAURIG, LLP
18565 Jamboree Road, Suite 500
8 Irvine, Califomia 92612
Telephone: 949.732.6500
9 Facsimile: 949.732.6501
10 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SACRAMENTO
14
15 ANDREA SPEARS^ an individual, on behalf of Case No. 34-2017-00210560-CU-OE-GDS
herself and on behalf of all persons similarly (Consolidated with Case No. 34-2017-00216685-CU-
16 situated. OE-GDS)
17 Plaintiff, REPLY IN SUPPORT OF HEALTH NET OF
CALIFORNIA, INC.'S MOTION TO STRIKE
18 HEALTH NET OF CALIFORNIA, INC., a TOMAS R. ARANA'S REPRESENTATIVE PAGA
Califomia corporation; and DOES 1 through 50. CLAIMS
19 inclusive.
Date: October 16, 2020
20 Defendants. Time: 11:00 a.m.
Dept.: 41
21 Judge: Hon. David De Alba
22 Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all
23 others similarly situated. FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
24 Plaintiff,
25
HEALTH NET OF CALIFORNIA, INC., a
26 Califomia corporation; and DOES 1 through 50,
27 inclusive,
Defendants.
28
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
1 REPRESENTATIVE PAGA CLAIMS
1 I. INTRODUCTION
2 HNCA has renewed its motion to strike Arana's PAGA claims because those claims were fatally
3 flawed when HNCA filed its original motion, and they remain so. The Court has the power to grant this
4 motion to strike, and it should. Arana's opposition papers do nothing to change the analysis or this
5 conclusion. And if anything, Arana's papers underscore why Arana should not be allowed to proceed on
6 any of his PAGA claims. He either has stipulated them away (exemption-related and regular rate/bonus
7 claims), abandoned them (rest break claims), conceded that they should not proceed because they are too
8 individualized or barred under judicial estoppel and exhaustion principles (meal break and off-the-clock
9 claims). He also has failed to demonstrate how any of them are not time-barred. They are. Even if any
10 of them had merit (which they do not), he waited too long to pursue them. Finally, were there any doubt
11 about theflimsinessof Arana's arguments in opposition to HNCA's motion to strike, it was revealed by
12 Arana's last gasp request that the Court commit reversible error and allow him to substitute in a new
13 PAGA representative. The Court should do now what HNCA requested long ago: strike all of Arana's
14 PAGA claims from this case.
15 n. ARANA'S OPPOSITION CLARIFIES THE PAGA CLAIMS HE PURSUED BEFORE -
THE LWDA. AS WELL AS THOSE HE HAS CONCEDED
17 Arana clarifies that when he originally filed his LWDA Notice he alleged an off-the-clock PAGA
Ig claim based on the alleged failure to pay employees for the time involved with booting up their
19 computers at the beginning of the shifts. Arana Opp. at 2:21-3:10. His PAGA wage statement and final
20 pay (Labor Code section 203) claims were derivative claims, based on that "boot-up," off-the-clock
21 claim. Id. at 2:21-3:22. Nowhere in his LWDA Notice did Arana mention any facts or theories relating
22 to his newly manufactured EMPCenter PAGA Claim. See Declaration of William M. Pao in Support of
23 Plaintiff Opposition to Motion to Strike Tomas R. Arana's Representative PAGA Claims, Exs. 1-2. This
24 should come as no surprise since Arana has never used the EMP Center timekeeping system.
25 While Arana included a rest break claim in his LWDA Notice (see id.), Arana essentially
26 concedes that he has abandoned this claim, which is not mentioned in his opposition papers. Similarly
27 missing from his opposition to HNCA's motion to strike is any discussion of a PAGA meal period claim,
28 however stylized. By his silence, Arana concedes that any meal period claim is barred for the reasons
REPLY IN SUPPORT OF HEALTH NET OF CALIFOBlNL\, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
REPRESENTATIVE PAGA CLAIMS
1 discussed in HNCA opening papers. Finally, and as HNCA pointed out in its opening brief, and Arana
2 does not dispute, he has stipulated that he is no longer pursuing PAGA claims based on his allegedly
3 having been misclassified as an exempt employee, or that any sort of bonus was not included in the
4 regular rate when calculating overtime.
5 HI. THE COURT HAS THE AUTHORITY TO GRANT THIS MOTION TO STRIKE
6 To begin with, there should not be any doubt that this Court has the authority to grant the relief
7 HNCA is seeking by way of this motion, and its companion motion to strike Spears' PAGA claims. The
8 Court does. For example, Califomia courts have stmck PAGA claims that are (as here) time-barred. See,
9 e.g., Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 47 (2019) (affirming the trial court's granting of a
10 motion to strike PAGA claims because the plaintiffs' claims were time-barred). Courts have also
11 declined to go forward with representative actions when, as here, the claims are too individualized. See,
12 e.g., S. Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861, 897 (1999) (defendant's
13 practices "were not sufficiently uniform to allow representative treatment"); see also Cal. Civ. Proc.
14 Code § 436 (courts may grant motion to strike "at any time in its discretion, and upon terms it deems
15 proper''). Moreover, it is simply disingenuous to argue that this Court has already mled on this motion.
16 The Court did not, and in fact specifically permitted HNCA to incorporate its prior motions and
17 supporting evidence (see RA 315) when HNCA chose to renew these motions, which HNCA has done.
18 See RA 452. As HNCA argued in its opening papers, now that Plaintiffs have indicated that they do not
19 need to do further discovery and have subrriitted their proposed trial plan (such as it is) the time to mle on
20 this (and the companion) mofion to strike is now.
21 TV. THE COURT SHOULD STRIKE ARANA'S REMAINING PAGA CLAIMS BECAUSE
22 THEY ARE TIME-BARRED
23 Arana's "boot-up," off-the clock claim (and likewise the derivative wage statement and final pay
24 claims) is a claim only non-exempt employees can pursue.' This is because non-exempt employees are
25 paid for the time they actually work. By contrast, an exempt employee like Arana must instead be paid a
26 salary that is not subject to reduction based on the quantity or quality of the work performed, and which
27 is at least equal to two times the state minimum wage. Cal. Lab. Code § 515(a), (c) (Califomia law
28
' This applies equally to Arana's recently manufactured EMPCenter PAGA Claim.
2
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLA, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
REPRESENTATIVE PAGA CLAIMS
1 requires "a monthly salary equivalent to no less than two times the state minimum wage for full-time
2 employment" of 40 hours per week); DLSE Enforcement Manual, § 51.6.8 ("An employee will be
3 considered to be paid 'on a salary basis' within the meaning of both the Califomia statute and the IWC
4 Orders if under his employment agreement he receives on regularly scheduled paydays consistent with
5 Califomia law, a predetermined amount constituting all of part of his compensation, which totals at least
6 two times the Califomia minimum wage per month, which amount is not subject to reduction because of
7 variations in the quality or quantity of the work performed/').
8 It is undisputed that on November 16, 2015, Arana became an exempt employee. See RA 66
9 (Consolidated Class Action Complaint), 6:6-7. Therefore, to the extent Arana had the ability to pursue
10 PAGA claims based on how he was compensated as a non-exempt employee, he had until November 15,
11 2016 (or within one year after he became an exempt employee) to assert them. Cal. Civ. Proc. Code §
12 340(a); Esparza, 36 Cal. App. 5th at 59-60 ("A PAGA action is subject to a one-year statute of
13 limitations."); Thomas v. Home Depot USA Inc., 527 F. Supp. 2d 1003, 1007 (N.D. Cal. 2007) (finding
14 plaintiffs PAGA claims barred by the CCP § 340(a) one-year statute of limitations); Slay v. CVS
15 Caremark Corp., 2015 WL 2081642, at *5 (E.D. Cal. May 4, 2015) ("PAGA claims are . . . restricted by.
16 a one-year statute of limitations."). He failed to do so. Arana acknowledges that he filed his first LWDA
17 nofice on May 9, 2017 (Arana Opp. at 2:21-22), or more than five months after the limitations period had
18 expired. Arana's PAGA claims (however characterized) are time-barred and the Court should strike
19 them. See Esparza, 36 Cal. App. 5th at 47 (affirming the trial court's granting of a motion to strike
20 PAGA claims because the plaintiffs' claims were time-barred).
21 V. IN ADDITION TO BEING TIME-BARRED, ARANA'S NEWLY MANUFACTURED
EMPCENTER PAGA CLAIM SHOULD BE STRICKEN BECAUSE HE FAILED TO
22 EXHAUST IT
23 While the statute of limitations bars all of Arana's PAGA claims, his newly manufactured
24 EMPCenter PAGA Claim is barred for an additional reason: he failed to mention it in his LWDA
25 Nodce.^
26 ///
27
^ It should come as no surprise that Arana did not mention any claim related to EMP Center in either of his LWDA Notices
28 because he has admitted that he has not used EMP Center to record his time. See Declaration of Timothy J. Long ^ 2, Ex. A,
at 160:25-161:4.
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLA, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
REPRESENTATIVE PAGA CLAIMS
1 As HNCA argued in its opening brief, before one can proceed to court on a PAGA claim, a
2 PAGA plaintiff must have included the claim in his LWDA Notice. Brown v. Ralphs Grocery Co., 28
3 Cal. App. 5th 824, 837-38 (2018). "Proper notice" is a jurisdictional requirement. Id. at 835; Caliber
4 Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 371 (2005). Labor Code Secfion 2699.3 states
5 that the LWDA Notice must contain both the "facts and theories" supporting the alleged violations.
6 While this language does not require a PAGA plaintiff to include their entire theory of the case, it does
7 require the PAGA plaintiff to provide some detail as to basis for those allegations. Mireles v. Paragon
8 Sys., Inc., 2016 WL 7634439, at *4-6 (S.D. Cal. Feb. 9, 2016).
9 Arana tries to salvage his EMPCenter PAGA Claim by making inapposite policy arguments
10 (Arana Opp. at 9:1-6), and wholly fails to deal with the plain language in his LWDA Notices other than
11 repeating the relevant sections in his brief. See id. at 8:13-24, 9:12^17. The Court should reject Arana's
12 efforts, such as they are. The fact of the matter is that the LWDA Notice filed by Arana made no
13 mention of EMPCenter. Most importantly, it said nothing relating to the basis for the EMPCenter PAGA
14 Claim that was first articulated in the plaintiffs' proposed trial plan. Nowhere in Arana's LWDA Notice'
15 is there any suggestion that the alleged off-the-clock work occurred due to HNCA's failure to advise its
16 employees that they could manually record their hours worked, as he now alleges in his EMPCenter
17 PAGA Claim. See generally RA 481. Rather, Arana's LWDA Notice described an off-the-clock claim
18 based on HNCA's alleged failure to compensate allegedly aggrieved employees for the time spent
19 booting up their computers.^
20 Accordingly, because Arana failed to exhaust his EMPCenter PAGA Claim, this is yet another
21 basis for the Court to strike it.
22 ///
23 III
24 III
25
' As further evidence that the EMPCenter PAGA Claim is recently manufactured, one need only revisit the papersfiledby
26 Plaintiffs in support of their class certification motion, and in their opposition to the HNCA's initial motions to strike.
Plaintiffs did not mention their EMPCenter theory anywhere in their certification papers, nor in opposition to HNCA's initial
motions. Moreover, Plaintiffs also clarified at the time that their PAGA claims were coextensive with their class claims. See
27 RA 481 ("The claims certified under C.C.P. § 382 are coextensive of the derivative PAGA claims, the trial of which will be
based on the same facts and law."). Presumably, if the EMP CenterPAGA Claim was not recently concocted. Plaintiffs would
28 have mentioned it somewhere in those prior filings.
4
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
REPRESENTATIVE PAGA CLAIMS
1 VI. ARANA DOES NOT DISPUTE THAT HIS PAGA CLAIMS ARE TOO
INDIVIDUALIZED
2
3 As pointed out above in HNCA's moving papers, a Court can and should strike PAGA claims that
4 are too individualized—not under class action principles, but rather under longstanding principles that
5 have guided courts handling complex, representative actions. See Williams v. Superior Court, 3 Cal. 5th
6 531, 559 (2017) (stating that a plaintiff bringing a PAGA representative action must "render trial of the
7 action manageable"); S. Bay Chevrolet, 72 Cal. App. 4th at 897 (declining to allow a representative UCL
8 action to go forward when the presentation of evidence would be highly individualized).
9 Arana's opposition fails to present any evidence that any of his PAGA claims are not
10 individualized—which is his burden to do. Arana also fails to dispute any of the evidence submitted by
11 HNCA that his PAGA claims pose insurmountable control and management problems. HNCA has
12 submitted substanfial evidence making clear that Arana's PAGA claims would depend upon
13 individualized adjudications of each employee's personal experiences and practices. This is yet another
14 basis on which to strike Arana's PAGA claims.
15 VIL THE COURT SHOULD DENY ARANA'S REOUEST TO SUBSTITUTE IN A NEW
PAGA REPRESENTATTVE
16
17 In a last-ditch effort to save his PAGA claims, Arana relies on class action principles to convince
18 this Court that he should be permitted to amend his pleadings tp substitute in other unnamed "putative
19 class members." How ironic. After repeatedly arguing "a PAGA suit is fundamentally different than a
20 class action" (see, e.g., Opp. at 6:4—7), Arana turns to those principles to save his case. Unfortunately for
21 Arana, courts that have faced this issue are uniform in holding that PAGA claims cannot simply be
22 transferred to another individual, without that individual having first complied with PAGA's
23 aggrievement and procedural requirements. See, e.g., Wong v. AT & TMobility Servs. LLC, 2012 WL
24 8527485, at *3 (CD. Cal. July 2, 2012) (denying leave to amend PAGA action because allowing
25 Plaintiffs to substitute in a new, unidentified aggrieved employee, who had not yet begun the
26 LWDA/employer notice/exhaustion process would effectively neuter PAGA's exhaustion requirement).
27 See also Amalgamated Transit Union, Local 1756 v. Superior Court, 46 Cal. 4th 993, 1003 (2009) (under
28 the PAGA "an aggrieved employee cannot assign a claim for statutory penalties because the employee
^ 5
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
REPRESENTATIVE PAGA CLAIMS
1 does not own an assignable interest"). Arana cites to no controlling authority allowing the amendment he
2 seeks, because none exists. The Court should therefore reject Arana's request for leave to amend to
3 substitute in a new PAGA representative.
4 yill. CONCLUSION.
5 Based upon the foregoing, the Court should strike Arana's PAGA claims and deny his request to
6 substitute in a new PAGA plaintiff.
.7
8 DATED: May 1,2020 GREENBERG TRAURIG, LLP
9
10 By
TIMOTHY J. LONG
11 ROWENA SANTOS
SAMUEL S. HYDE
12
Attomeys for Defendant
13 HEALTH NET OF CALIFORNIA, INC.
14
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28
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNL\, INC'S MOTION TO STRIKE TOMAS R. ARANA'S
REPRESENTATIVE PAGA CLAIMS
1 Andrea Spears, et al. vs. Health Net of Califomia, Inc.
Sacramento County Superior Court Case No. 34-2017-002105 60
2
DECLARATION OF SERVICE
3
I am a citizen of the United States, over the age of 18 years, and not a party to or
4 interested in this action. I am employed in the County of Sacramento, State of Califomia and my
business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814.
5
On this day, I caused to be served the following document(s):
6
REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC.'S MOTION TO
7 STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS
8 By placing [H the original ^ a tme copy into sealed envelopes addressed and served as
follows:
9
Norman Blumenthal
10 Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears
Piya Mukherjee
11 Victoria B. Rivapalacio
BLUMENTHAL, NORDREHAUG &
12 BHOWMIK LLP
2255 Calle Clara
13 La Jolla, CA 92037
Email: norm@bamiawca.com
14 Telephone: (858) 551-1223
Facsimile: (858) 551-1232
15
Shaun Setareh
16 William Pao Attorneys for Plaintiff Tomas R. Arana
Alex Mcintosh
17 SETAREH LAW GROUP
315 S. Beverly Drive, Suite 315
18 Beverly Hills, CA 90212
Email: shauh(2),setarehlaw.com
19 william(S),setarehlaw.com
alex(a),setarehlaw.corh
20 Telephone: (310)888-7771
Facsimile: (310)888-0109
21
3 BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy
22 thereof attached to the electronic email address(es) as set forth above.
23 I declare under penalty of perjury under the laws of the State ofCalifomia that the
foregoing is tme and correct.
24
Executed on October 6, 2020, at Sacramento, Califomia.
25
26
Marlene Celis
27
28
PROOF OF SERVICE
Preview
Timothy J. Long (SBN 137591) longt@gtlaw.com FiLEO/EMOOBSED 2 Samuel S. Hyde (SBN 327065) hydes@gtlaw.com OCT 0 6 2020 3 GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 By:. 1. nrnwfhpr 4 Sacramento, Califomia 95814 Deputy Clerk Telephone: 916.442.1111 5 Facsimile: 916.448.l709 6 Rowena Santos (SBN 210185) santosro@gtlaw.com 7 GREENBERG TRAURIG, LLP 18565 Jamboree Road, Suite 500 8 Irvine, Califomia 92612 Telephone: 949.732.6500 9 Facsimile: 949.732.6501 10 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SACRAMENTO 14 15 ANDREA SPEARS^ an individual, on behalf of Case No. 34-2017-00210560-CU-OE-GDS herself and on behalf of all persons similarly (Consolidated with Case No. 34-2017-00216685-CU- 16 situated. OE-GDS) 17 Plaintiff, REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC.'S MOTION TO STRIKE 18 HEALTH NET OF CALIFORNIA, INC., a TOMAS R. ARANA'S REPRESENTATIVE PAGA Califomia corporation; and DOES 1 through 50. CLAIMS 19 inclusive. Date: October 16, 2020 20 Defendants. Time: 11:00 a.m. Dept.: 41 21 Judge: Hon. David De Alba 22 Complaint Filed: April 5, 2017 TOMAS R. ARANA, on behalf of himself, all 23 others similarly situated. FAC Filed: June 29, 2017 Consolidated Complaint Filed: Dec. 21, 2017 24 Plaintiff, 25 HEALTH NET OF CALIFORNIA, INC., a 26 Califomia corporation; and DOES 1 through 50, 27 inclusive, Defendants. 28 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC'S MOTION TO STRIKE TOMAS R. ARANA'S 1 REPRESENTATIVE PAGA CLAIMS 1 I. INTRODUCTION 2 HNCA has renewed its motion to strike Arana's PAGA claims because those claims were fatally 3 flawed when HNCA filed its original motion, and they remain so. The Court has the power to grant this 4 motion to strike, and it should. Arana's opposition papers do nothing to change the analysis or this 5 conclusion. And if anything, Arana's papers underscore why Arana should not be allowed to proceed on 6 any of his PAGA claims. He either has stipulated them away (exemption-related and regular rate/bonus 7 claims), abandoned them (rest break claims), conceded that they should not proceed because they are too 8 individualized or barred under judicial estoppel and exhaustion principles (meal break and off-the-clock 9 claims). He also has failed to demonstrate how any of them are not time-barred. They are. Even if any 10 of them had merit (which they do not), he waited too long to pursue them. Finally, were there any doubt 11 about theflimsinessof Arana's arguments in opposition to HNCA's motion to strike, it was revealed by 12 Arana's last gasp request that the Court commit reversible error and allow him to substitute in a new 13 PAGA representative. The Court should do now what HNCA requested long ago: strike all of Arana's 14 PAGA claims from this case. 15 n. ARANA'S OPPOSITION CLARIFIES THE PAGA CLAIMS HE PURSUED BEFORE - THE LWDA. AS WELL AS THOSE HE HAS CONCEDED 17 Arana clarifies that when he originally filed his LWDA Notice he alleged an off-the-clock PAGA Ig claim based on the alleged failure to pay employees for the time involved with booting up their 19 computers at the beginning of the shifts. Arana Opp. at 2:21-3:10. His PAGA wage statement and final 20 pay (Labor Code section 203) claims were derivative claims, based on that "boot-up," off-the-clock 21 claim. Id. at 2:21-3:22. Nowhere in his LWDA Notice did Arana mention any facts or theories relating 22 to his newly manufactured EMPCenter PAGA Claim. See Declaration of William M. Pao in Support of 23 Plaintiff Opposition to Motion to Strike Tomas R. Arana's Representative PAGA Claims, Exs. 1-2. This 24 should come as no surprise since Arana has never used the EMP Center timekeeping system. 25 While Arana included a rest break claim in his LWDA Notice (see id.), Arana essentially 26 concedes that he has abandoned this claim, which is not mentioned in his opposition papers. Similarly 27 missing from his opposition to HNCA's motion to strike is any discussion of a PAGA meal period claim, 28 however stylized. By his silence, Arana concedes that any meal period claim is barred for the reasons REPLY IN SUPPORT OF HEALTH NET OF CALIFOBlNL\, INC'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 1 discussed in HNCA opening papers. Finally, and as HNCA pointed out in its opening brief, and Arana 2 does not dispute, he has stipulated that he is no longer pursuing PAGA claims based on his allegedly 3 having been misclassified as an exempt employee, or that any sort of bonus was not included in the 4 regular rate when calculating overtime. 5 HI. THE COURT HAS THE AUTHORITY TO GRANT THIS MOTION TO STRIKE 6 To begin with, there should not be any doubt that this Court has the authority to grant the relief 7 HNCA is seeking by way of this motion, and its companion motion to strike Spears' PAGA claims. The 8 Court does. For example, Califomia courts have stmck PAGA claims that are (as here) time-barred. See, 9 e.g., Esparza v. Safeway, Inc., 36 Cal. App. 5th 42, 47 (2019) (affirming the trial court's granting of a 10 motion to strike PAGA claims because the plaintiffs' claims were time-barred). Courts have also 11 declined to go forward with representative actions when, as here, the claims are too individualized. See, 12 e.g., S. Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861, 897 (1999) (defendant's 13 practices "were not sufficiently uniform to allow representative treatment"); see also Cal. Civ. Proc. 14 Code § 436 (courts may grant motion to strike "at any time in its discretion, and upon terms it deems 15 proper''). Moreover, it is simply disingenuous to argue that this Court has already mled on this motion. 16 The Court did not, and in fact specifically permitted HNCA to incorporate its prior motions and 17 supporting evidence (see RA 315) when HNCA chose to renew these motions, which HNCA has done. 18 See RA 452. As HNCA argued in its opening papers, now that Plaintiffs have indicated that they do not 19 need to do further discovery and have subrriitted their proposed trial plan (such as it is) the time to mle on 20 this (and the companion) mofion to strike is now. 21 TV. THE COURT SHOULD STRIKE ARANA'S REMAINING PAGA CLAIMS BECAUSE 22 THEY ARE TIME-BARRED 23 Arana's "boot-up," off-the clock claim (and likewise the derivative wage statement and final pay 24 claims) is a claim only non-exempt employees can pursue.' This is because non-exempt employees are 25 paid for the time they actually work. By contrast, an exempt employee like Arana must instead be paid a 26 salary that is not subject to reduction based on the quantity or quality of the work performed, and which 27 is at least equal to two times the state minimum wage. Cal. Lab. Code § 515(a), (c) (Califomia law 28 ' This applies equally to Arana's recently manufactured EMPCenter PAGA Claim. 2 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLA, INC'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 1 requires "a monthly salary equivalent to no less than two times the state minimum wage for full-time 2 employment" of 40 hours per week); DLSE Enforcement Manual, § 51.6.8 ("An employee will be 3 considered to be paid 'on a salary basis' within the meaning of both the Califomia statute and the IWC 4 Orders if under his employment agreement he receives on regularly scheduled paydays consistent with 5 Califomia law, a predetermined amount constituting all of part of his compensation, which totals at least 6 two times the Califomia minimum wage per month, which amount is not subject to reduction because of 7 variations in the quality or quantity of the work performed/'). 8 It is undisputed that on November 16, 2015, Arana became an exempt employee. See RA 66 9 (Consolidated Class Action Complaint), 6:6-7. Therefore, to the extent Arana had the ability to pursue 10 PAGA claims based on how he was compensated as a non-exempt employee, he had until November 15, 11 2016 (or within one year after he became an exempt employee) to assert them. Cal. Civ. Proc. Code § 12 340(a); Esparza, 36 Cal. App. 5th at 59-60 ("A PAGA action is subject to a one-year statute of 13 limitations."); Thomas v. Home Depot USA Inc., 527 F. Supp. 2d 1003, 1007 (N.D. Cal. 2007) (finding 14 plaintiffs PAGA claims barred by the CCP § 340(a) one-year statute of limitations); Slay v. CVS 15 Caremark Corp., 2015 WL 2081642, at *5 (E.D. Cal. May 4, 2015) ("PAGA claims are . . . restricted by. 16 a one-year statute of limitations."). He failed to do so. Arana acknowledges that he filed his first LWDA 17 nofice on May 9, 2017 (Arana Opp. at 2:21-22), or more than five months after the limitations period had 18 expired. Arana's PAGA claims (however characterized) are time-barred and the Court should strike 19 them. See Esparza, 36 Cal. App. 5th at 47 (affirming the trial court's granting of a motion to strike 20 PAGA claims because the plaintiffs' claims were time-barred). 21 V. IN ADDITION TO BEING TIME-BARRED, ARANA'S NEWLY MANUFACTURED EMPCENTER PAGA CLAIM SHOULD BE STRICKEN BECAUSE HE FAILED TO 22 EXHAUST IT 23 While the statute of limitations bars all of Arana's PAGA claims, his newly manufactured 24 EMPCenter PAGA Claim is barred for an additional reason: he failed to mention it in his LWDA 25 Nodce.^ 26 /// 27 ^ It should come as no surprise that Arana did not mention any claim related to EMP Center in either of his LWDA Notices 28 because he has admitted that he has not used EMP Center to record his time. See Declaration of Timothy J. Long ^ 2, Ex. A, at 160:25-161:4. REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLA, INC'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 1 As HNCA argued in its opening brief, before one can proceed to court on a PAGA claim, a 2 PAGA plaintiff must have included the claim in his LWDA Notice. Brown v. Ralphs Grocery Co., 28 3 Cal. App. 5th 824, 837-38 (2018). "Proper notice" is a jurisdictional requirement. Id. at 835; Caliber 4 Bodyworks, Inc. v. Superior Court, 134 Cal. App. 4th 365, 371 (2005). Labor Code Secfion 2699.3 states 5 that the LWDA Notice must contain both the "facts and theories" supporting the alleged violations. 6 While this language does not require a PAGA plaintiff to include their entire theory of the case, it does 7 require the PAGA plaintiff to provide some detail as to basis for those allegations. Mireles v. Paragon 8 Sys., Inc., 2016 WL 7634439, at *4-6 (S.D. Cal. Feb. 9, 2016). 9 Arana tries to salvage his EMPCenter PAGA Claim by making inapposite policy arguments 10 (Arana Opp. at 9:1-6), and wholly fails to deal with the plain language in his LWDA Notices other than 11 repeating the relevant sections in his brief. See id. at 8:13-24, 9:12^17. The Court should reject Arana's 12 efforts, such as they are. The fact of the matter is that the LWDA Notice filed by Arana made no 13 mention of EMPCenter. Most importantly, it said nothing relating to the basis for the EMPCenter PAGA 14 Claim that was first articulated in the plaintiffs' proposed trial plan. Nowhere in Arana's LWDA Notice' 15 is there any suggestion that the alleged off-the-clock work occurred due to HNCA's failure to advise its 16 employees that they could manually record their hours worked, as he now alleges in his EMPCenter 17 PAGA Claim. See generally RA 481. Rather, Arana's LWDA Notice described an off-the-clock claim 18 based on HNCA's alleged failure to compensate allegedly aggrieved employees for the time spent 19 booting up their computers.^ 20 Accordingly, because Arana failed to exhaust his EMPCenter PAGA Claim, this is yet another 21 basis for the Court to strike it. 22 /// 23 III 24 III 25 ' As further evidence that the EMPCenter PAGA Claim is recently manufactured, one need only revisit the papersfiledby 26 Plaintiffs in support of their class certification motion, and in their opposition to the HNCA's initial motions to strike. Plaintiffs did not mention their EMPCenter theory anywhere in their certification papers, nor in opposition to HNCA's initial motions. Moreover, Plaintiffs also clarified at the time that their PAGA claims were coextensive with their class claims. See 27 RA 481 ("The claims certified under C.C.P. § 382 are coextensive of the derivative PAGA claims, the trial of which will be based on the same facts and law."). Presumably, if the EMP CenterPAGA Claim was not recently concocted. Plaintiffs would 28 have mentioned it somewhere in those prior filings. 4 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 1 VI. ARANA DOES NOT DISPUTE THAT HIS PAGA CLAIMS ARE TOO INDIVIDUALIZED 2 3 As pointed out above in HNCA's moving papers, a Court can and should strike PAGA claims that 4 are too individualized—not under class action principles, but rather under longstanding principles that 5 have guided courts handling complex, representative actions. See Williams v. Superior Court, 3 Cal. 5th 6 531, 559 (2017) (stating that a plaintiff bringing a PAGA representative action must "render trial of the 7 action manageable"); S. Bay Chevrolet, 72 Cal. App. 4th at 897 (declining to allow a representative UCL 8 action to go forward when the presentation of evidence would be highly individualized). 9 Arana's opposition fails to present any evidence that any of his PAGA claims are not 10 individualized—which is his burden to do. Arana also fails to dispute any of the evidence submitted by 11 HNCA that his PAGA claims pose insurmountable control and management problems. HNCA has 12 submitted substanfial evidence making clear that Arana's PAGA claims would depend upon 13 individualized adjudications of each employee's personal experiences and practices. This is yet another 14 basis on which to strike Arana's PAGA claims. 15 VIL THE COURT SHOULD DENY ARANA'S REOUEST TO SUBSTITUTE IN A NEW PAGA REPRESENTATTVE 16 17 In a last-ditch effort to save his PAGA claims, Arana relies on class action principles to convince 18 this Court that he should be permitted to amend his pleadings tp substitute in other unnamed "putative 19 class members." How ironic. After repeatedly arguing "a PAGA suit is fundamentally different than a 20 class action" (see, e.g., Opp. at 6:4—7), Arana turns to those principles to save his case. Unfortunately for 21 Arana, courts that have faced this issue are uniform in holding that PAGA claims cannot simply be 22 transferred to another individual, without that individual having first complied with PAGA's 23 aggrievement and procedural requirements. See, e.g., Wong v. AT & TMobility Servs. LLC, 2012 WL 24 8527485, at *3 (CD. Cal. July 2, 2012) (denying leave to amend PAGA action because allowing 25 Plaintiffs to substitute in a new, unidentified aggrieved employee, who had not yet begun the 26 LWDA/employer notice/exhaustion process would effectively neuter PAGA's exhaustion requirement). 27 See also Amalgamated Transit Union, Local 1756 v. Superior Court, 46 Cal. 4th 993, 1003 (2009) (under 28 the PAGA "an aggrieved employee cannot assign a claim for statutory penalties because the employee ^ 5 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNLV, INC'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 1 does not own an assignable interest"). Arana cites to no controlling authority allowing the amendment he 2 seeks, because none exists. The Court should therefore reject Arana's request for leave to amend to 3 substitute in a new PAGA representative. 4 yill. CONCLUSION. 5 Based upon the foregoing, the Court should strike Arana's PAGA claims and deny his request to 6 substitute in a new PAGA plaintiff. .7 8 DATED: May 1,2020 GREENBERG TRAURIG, LLP 9 10 By TIMOTHY J. LONG 11 ROWENA SANTOS SAMUEL S. HYDE 12 Attomeys for Defendant 13 HEALTH NET OF CALIFORNIA, INC. 14 15 16 17 18 19 20 21 22 •23 24 25 26 27 28 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNL\, INC'S MOTION TO STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 1 Andrea Spears, et al. vs. Health Net of Califomia, Inc. Sacramento County Superior Court Case No. 34-2017-002105 60 2 DECLARATION OF SERVICE 3 I am a citizen of the United States, over the age of 18 years, and not a party to or 4 interested in this action. I am employed in the County of Sacramento, State of Califomia and my business address is Greenberg Traurig, LLP, 1201 K Street, Suite 1100, Sacramento, CA 95814. 5 On this day, I caused to be served the following document(s): 6 REPLY IN SUPPORT OF HEALTH NET OF CALIFORNIA, INC.'S MOTION TO 7 STRIKE TOMAS R. ARANA'S REPRESENTATIVE PAGA CLAIMS 8 By placing [H the original ^ a tme copy into sealed envelopes addressed and served as follows: 9 Norman Blumenthal 10 Aparajit Bhowmik Attorneys for PlaintiffAndrea Spears Piya Mukherjee 11 Victoria B. Rivapalacio BLUMENTHAL, NORDREHAUG & 12 BHOWMIK LLP 2255 Calle Clara 13 La Jolla, CA 92037 Email: norm@bamiawca.com 14 Telephone: (858) 551-1223 Facsimile: (858) 551-1232 15 Shaun Setareh 16 William Pao Attorneys for Plaintiff Tomas R. Arana Alex Mcintosh 17 SETAREH LAW GROUP 315 S. Beverly Drive, Suite 315 18 Beverly Hills, CA 90212 Email: shauh(2),setarehlaw.com 19 william(S),setarehlaw.com alex(a),setarehlaw.corh 20 Telephone: (310)888-7771 Facsimile: (310)888-0109 21 3 BY ELECTRONIC TRANSMISSION: By transmitting a tme and a correct copy 22 thereof attached to the electronic email address(es) as set forth above. 23 I declare under penalty of perjury under the laws of the State ofCalifomia that the foregoing is tme and correct. 24 Executed on October 6, 2020, at Sacramento, Califomia. 25 26 Marlene Celis 27 28 PROOF OF SERVICE