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1 BLUMENTHAL NORDREHAUG BHOWMIK DE
BLOUW LLP
2 NORMAN B. BLUMENTHAL (SBN 068687)
APARAJIT BHOWMIK (SBN 248066)
3 PIYA MUKHERJEE (SBN 274217)
VICTORIA B. RIVAPALACIO (SBN 275115)
4 2255 Caile Clara
La Jolla, CA 92037
5 Tel: 858.551.1223
Fax: 858.551.1232
6 norm@bamlawca.com
7 Attomeys for Plaintiff
ANDREA SPEARS
8
SETAREH LAW GROUP
9 SHAUN SETAREH (SBN 204514)
shaun@setarehlaw.com
10 315 South Beverly Drive., Suite 315
Beverly Hills, CA 90212
11 Telephone: (310) 888-7771
12 Attomeys for Plaintiff
TOMAS R. ARANA
13
SUPERIOR COURT OF THE STATE OF CALIFORNIA
14
COUNTY OF SACRAMENTO
15
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
16 of herself and on behalf of all persons similarly CU-OE-GDS
situated.
17 Plaintiff, PLAINTIFFS' CASE MANAGEMENT
CONFERENCE STATEMENT R E PAGA
18 TRIAL PLAN
19 HEALTH NET OF CALIFORNIA, INC., a Date: September 27, 2019
Califomia Corporation; and Does 1 through 50, Tirne: 3 p.m.
20 inclusive. Dept.: 35
21 Defendants.
22 Original Complaint Filed: April 5, 2017
TOMAS R. ARANA, on behalf of himself, all
FAC Filed: June 29, 2017
23 others similarly situated,
Consolidated Complaint Filed: Dec. 21, 2017
24 Plaintiff,
25 V.
26 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1-50,
27 inclusive.
28 Defendant.
PLAINTIFFS' CASE MANAGEMENT STATEMENT
Filed by Fax
PlaintifFs ANDREA SPEARS and TOMAS R. ARANA ("PlaintifFs") respectfully submit
2 the following Case Management Statement in advance of the Telephonic Case Management
3 Conference scheduled for September 27, 2019.
4 I. A TRIAL PLAN IS NOT NECESSARY FOR THE PAGA CLAIMS THAT
5 OVERLAP ENTIRELY OR ARE DERIVATIVE OF THE CERTIFIED CLAIMS
6 During the August 30, 2019 hearing, the Court certified the following classes and claims:
7 Miscalculation Class: All individuals who are or previously were employed by Defendant
8 Health Net of Califomia, Inc. ("Defendant") in Califomia and classified as non-exempt and
9 received "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA Incentive
10 payments and/or Wellness Incentive payments during the period of April 5, 2013 to December
11 31, 2016. PlaintifFs allege that the "MedFlxWave" payments, "DenFlxWave" payments, SPOT
12 Awards, ACA Incentive payments and/or Wellness Incentive were improperly calculated
13 and/or improperly excluded from the regular rate with respect to claims:
• for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 1198;
14 • for unfair competition pursuant to Califomia Business & Professions Code § 17200,
15 et seq. ("UCL"), limited to the alleged violations of Califomia Labor Code §§510
and 1198;
16 • subject to the Court's mling on supplemental briefing, for inaccurate wage
statements in violation of Califomia Labor Code § 226, limited to the allegations of
17 the claim for unpaid overtime wages pursuant to Califomia Labor Code §§510 and
18 1198;
• the derivative claim for waiting time penalties pursuant to Califomia Labor Code §§
19 201, 202 and 203, limited to the allegations of the claim for unpaid overtime wages
pursuant to Califomia Labor Code §§510 and 1198.
20
Off-the-Clock Class: All persons employed by Health Net of Califomia, Inc. and Health Net,
21
Inc. in hourly or non-exempt positions in Califomia during the relevant time, who logged onto
22
or tumed on a computer or device to access any time clock or timekeeping system to record
23
their hours worked.
24
With respect to the claims outlined above, the Court has already held that these certified claims
25
satisfied the prerequisites of class certification, including manageability. The claims certified under
26
C.C.P. section 382 are coextensive of the derivative PAGA claims, the trial of which will be based
27
on the same facts and law. Since the Court has deemed a trial on the certified claims manageable,
28
PLAINTIFFS' CASE MANAGEMENT STATEMENT
1 Plaintiffs understand that a trial plan, to the extent ordered, would not encompass the overlapping
2 violations of the PAGA caused by this conduct alleged by the Miscalculation Class, including
3 Califomia Labor Code sections 201, 202, 203, 204, 510, 558, 1194, 1198 and the Wage Order or
4 the overlapping violations of the PAGA caused by this conduct alleged by the OfF-the-Clock Class,
5 including Califomia Labor Code sections 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198.
6 As such, Plaintiffs understand that the only remaining claims which the Court is concemed
7 about relate to the PAGA claims which are not derivative of certified class claims, outlined above.
8 The only remaining PAGA claims not derivative of certified claims are:
9 (l)that Defendant's policies and practices for providing meal period premiums to the
10 Aggrieved Employees during the time period of April 5, 2016 to December 31, 2016
11 violated Califomia law, and
12 (2) that Defendant's policies and practices failed to capture all hours worked by Aggrieved
13 Employees utilizing the EMPCenter timekeeping system during the time period of January
14 1, 2017 to present violated Califomia law.
15 IL A TRIAL PLAN IS NOT NECESSARY HERE AS MANAGEABILITY IS NOT A
16 REQUIREMENT FOR PAGA ACTIONS
17 Defendant's PAGA motions, which argued that Plaintiffs PAGA claims were
18 unmanageable, were denied on procedural grounds. The motions were like the motion criticized
19 by the Court of Appeal in a PAGA case surmounting to nothing more than a summary judgment
20 motion in disguise. See Carrington v. Starbucks Corporation, 30 Cal. App. Sth 504 (2018).
21 Requiring Plaintiffs to file a trial plan to prove manageability would needlessly recreate the same
22 procedural infirmities that plagued Defendant's briefing for the same reasons.
23 Indeed, requiring Plaintiffs to prove that the remaining PAGA claims are manageable
24 erroneously requires PlaintifFs to comply with a class certification requirement and would violate
25 the Supreme Court of Califomia's holding that class certification requirements, including
26 manageability, do not need to be satisfied for a PAGA action to proceed to trial. Arias v. Superior
27 Court, 46 Cal. 4th 969, 975 (2009); see also Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074, 1079
28 (2017) ("PAGA authorizes a representative action without the need for class certification."). The
- 1 -
PLAINTIFFS' CASE MANAGEMENT STATEMENT
1 PAGA action is not a dispute between an employee and an employer, but rather a "dispute between
2 an employer and the state, which alleges directly or through its agents - either the [LWDA] or
3 aggrieved employees - that the employer has violated the [Califomia] Labor Code." Iskanian v.
4 CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 386-87 (2014). The employee bringing a
5 PAGA action is prosecuting a "law enforcement action" and "represents the same legal right and
6 interest as state labor law enforcement agencies[.]" Id. at 387 (intemal quotation marks omitted).
7 The submission of a trial plan itself was stated as a class action requirement, not a PAGA
8 requirement in Duran v. U.S. BankNat'l Ass'n, 59 Cal. 4th 1 (2014). Defendant's statement tellingly
9 points to no law authorizing a PAGA trial plan to be provided. The law in Califomia is stated by
10 Carrington where the only briefing on manageability was criticized as an improper motion and the
11 remedy was not for the parties to provide a trial plan, but to simply proceed with a trial ofthe case
12 under the court's already established pre-trail procedures. This the Plaintiffs are prepared to do by
13 complying with the Califomia Code of Civil Procedure, the Califomia Rules of Court, and
14 Sacramento Superior Court Local Rules including, but not limited to Local Rules 2.98, 2.99, and
15 2,99.02, for purposes of organizing these claims for trial. Indeed, although this Court has the power
16 to ensure that trial is manageable, it does not have the power to dismiss a non-class action claim
17 because the presentation of evidence at trial appears unmanageable. The Califomia Supreme Court
18 in Williams v. Superior Court described the difference between a class action and a PAGA claim
19 by clearly stating that "[a] uniform policy may be a convenient or desirable way to show
20 commonality of interest in a case where class certification is sought, but it is not a condition for
21 discovery, or even success, in a PAGA action where recovery on behalf of the state and aggrieved
22 employees may be had for each violation." Williams v. Superior Court, 3 Cal. 5th 531,559 (2017).
23 There is no law allowing trial courts to dispose of any non-class claim, including a PAGA claim,
24 on the grounds of manageability and to do so without a trial would violate Plaintiffs right to due
25 process.
26 Indeed, Califomia state and federal courts agree that manageability is not a requirement for
27 PAGA actions. Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3082 (LASC April 6,2018);
28 citing Zackaria v. Wal-Mart Stores, Inc. 2015 WL 6745714 (CD. Cal., Nov. 3, 2015), at *6 ["the
-2-
PLAINTIFFS' CASE MANAGEMENT STATEMENT
1 court finds defendant's manageability argument inconsistent with PAGA's purpose and statutory
2 scheme."].) "Holding that individualized liability determinations make representative PAGA
3 actions unmanageable, and therefore untenable, would impose a barrier on such actions that the
4 state law enforcement agency does not face when it litigates those cases itself" Id.
5 "To hold that a PAGA action could not be maintained because the individual assessments
6 regarding whether a violation had occurred would make the claim unmanageable at trial would
7 obliterate [the purpose of PAGA], as every PAGA action in some way requires some individualized
8 assessment regarding whether a Labor Code violation has occurred. Plaisted v. Dress Barn, Inc.,
9 2012 U.S. Dist. LEXIS 135599, *10 (CD. Cal. Sept. 20, 2012); see also Brown v. Am. Airlines,
10 Inc., 2015 U.S. Dist. LEXIS 150670, *3 (CD. Cal. Oct. 5, 2015) ["every PAGA action in some
11 ways requires some individualized assessment regarding whether a Labor Code violation has
12 occurred."].)
13 As such, the submission of a trial plan to determine whether the PAGA allegations are
14 manageable is "inconsistent with PAGA's purpose and statutory scheme."
15 III. A TRIAL PLAN IS NOT NECESSARY HERE AS THE PAGA CLAIMS ARE
16 DISCRETE IN NATURE
17 As stated above. Plaintiffs intend to seek PAGA penalties with respect to two claims aside
18 from the PAGA penalties derivative of certified claims: (1) that Defendant's uniform policies for
19 providing meal period premiums to the Aggrieved Employees during the time period of April 5,
20 2016 to December 31, 2016 violated Califomia law, and (2) that Defendant's uniform policies
21 failed to capture all hours worked by Aggrieved Employees utilizing the EMPCenter timekeeping
22 system during the time period of January 1, 2017 to present violated Califomia law.
23 As outlined below, Plaintiffs' remaining PAGA claims not derivative of certified claims are
24 discrete in nature and will be based on Defendant's own business records, testimony fi-om
25 Defendant's "Person Most Knowledgeable" designee, and testimony from Plaintiffs' expert
26 witness.
27 A. Defendant's Failure to Provide Meal Period Premiums
28 During the time period of April 5, 2016 to December 31, 2016, Defendant's "Person Most
-3-
PLAINTIFFS' CASE MANAGEMENT STATEMENT
1 Knowledgeable" testified that Defendant's uniform policy for providing meal period premiums was
2 for all meal period premiums to be paid using the payroll code "DTO". However, the policies
3 provided to all Aggrieved Employees uniformly failed to advise them to use the pay code "DTO"
4 for meal period premiums. This resulted in numerous unpaid meal period premiums.
5 As such. Plaintiff will rely on the testimony from Defendant's PMK witness. Defendant's
6 own written policies, and a report by Plaintiffs expert analyzing the frequency meal period
7 violations which did not result in the payment of a meal period premium. Defendant may then raise
8 any defenses as the employer bears the burden of proving any and all defenses, not Plaintiffs. In
9 Carrington v. Starbucks Corporation, 30 Cal. App. 5th 504 (2018), the court concluded that a
10 PAGA action pertaining to meal break violations for over a hundred thousand aggrieved employees
11 was not over-individualized to render it unmanageable. Carrington, 30 Cal. App. 5th at 526. Here,
12 there are only 2,551 Aggrieved Employees and the primary issue of contention is Defendant's
13 failure to provide a policy and practice for the Aggrieved Employees to record meal period
14 penalties. In Carrington, after the defendant's motion for summary adjudication in disguise failed,
15 the case proceeded to trial. This procedure was upheld by the Califomia Court of Appeal without
16 any requirement that the trial had to be preceded with the briefing of a PAGA trial plan or else face
17 dismissal. No law supports that plan.
18 B. Defendant's Failure to Capture and Pay For All Hours Worked
19 During the time period beginning January 1, 2017 to the present. Defendant switched to a
20 new timekeeping system. As a result of the change to the new EMPCenter timekeeping system,
21 Defendant's policies changed accordingly. (Long Decl. ISO Opp. to Mot. For Class Cert., ^ 3, Ex.
22 B at 54:6-7; Rodes Decl. ISO Opp. to Mot. For Class Cert., T[ 7.) Defendant submitted a declaration
23 from its Director of Human Resources stating that the previous timekeeping system, PeopleSoft,
24 and the current timekeeping system, EMPCenter, have both always permitted employees to
25 manually enter their start and stop times. (Rodes Decl. ISO Opp. to Mot. For Class Cert., ^ 7.)
26 However, the policies provide to all Aggrieved Employees uniformly failed to advise them that
27 they could manually enter their start and stop times. This resulted in Aggrieved Employees who
28 were not paid for all hours worked.
-4-
PLAINTIFFS' CASE MANAGEMENT STATEMENT
1 Similariy, PlaintifF will rely on the testimony from Defendant's PMK, declarations
2 submitted by Defendant, Defendant's own written policies, and a report by Plaintiffs expert
3 analyzing the amount of time and the frequency with which Defendant's policy failed to capture all
4 hours worked by aggrieved employees. Likewise, Plaintiff will follow the trial model successfully
5 utilized in Carrington, supra at 526.
6 IV. CASE TIMELINE
7 Defendant has not provided any authority that a prerequisite for uncertified PAGA claims
8 to proceed to trial is the submission of a trial plan. After consideration of the Court's questions
9 posed in the tentative mling regarding Defendant's PAGA motions as well as Defendant's Case
10 Management Conference Statement, Plaintiffs believe that the appropriate next step in this action
11 is for Plaintiffs to complete additional discovery and prove the Califomia Labor Code violations at
12 trial. The remaining discovery can be completed during the class notice opt-out period which has
13 not yet begun.
14 All of the questions from the Court's Minute Order are appropriate questions for motions
15 in limine. In order to provide both PlaintifFs and Defendant an appropriate amount of time to
16 respond to such motions in limine, PlaintifFs would propose that both sides be provided thirty (30)
17 days to respond. Details regarding Plaintiffs' trial of the entire case, including the PAGA claims
18 that do and do not overlap with the class claims can and should be detailed by reference to already
19 established pre-trial procedures set forth in the Califomia Code of Civil Procedure, the Califomia
20 Rules of Court, and Sacramento Superior Court Local Rules including, but not limited to. Local
21 Rules 2.98, 2.99, and 2.99.02. The Court can constme this process as a trial plan, but Plaintiffs
22 object to the idea of importing the class certification requirements of manageability and trial plans
23 in the PAGA claims to the extent such a process violates Arias' prohibition on requiring class
24 certification elements to be proven for non-class claims, like PAGA, to proceed.
25
26
27
28
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PLAINTIFFS' CASE MANAGEMENT STATEMENT
1 Dated: September 20,2019 BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW LLP
2
3
4 APARAJIT]
PIYA MUKHERJEE
5 AttorneysforPlaintiff
ANDREA SPEARS
6
7 Dated: Septeinber 20,2019 SETAREH LAW GROUP
8
9
SHAUlSrSETAREH
10 WILLL\M PAO
ALEXANDRA R. MCINTOSH
11 Attomeys fm PlaintiH
TOMAS R. ARANA
12
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PLAINTIFFS' CASEMANAQEM^ STATEMENT
1 PROOF OF SERVICE
^ STATE OF CALIFORNIA, COUNTY OF SAN DIEGO
3
I, Piya Mukherjee, am employed in the County of San Diego, State of Califomia. I am over
4 the age of 18 and not a party to the within action. My business address is 2255 Calle Clara, La
, Jolla, Califomia 92037.
5
^ On September 20, 2019,1 served the document(s) described as:
7 1. PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE
PAGA TRIAL PLAN
8
9
(BY MAIL): I caused each such envelope, with postage thereon flilly prepaid, to be
10 placed in the United States mail at San Diego, California. I am readily familiar with
this firm's business practice for collection and processing of correspondence for
11 mailing with the U.S. Postal Service pursuant to which practice the correspondence
j2 will be deposited with the U.S. Postal Service this same day in the ordinary course of
business (C.C.P. Section 10139a); 2015.5):
13 "
j4 Timothy J. Long SETAREH LAW GROUP
ORRICK, HERRINGTON & SUTCLIFFE LLP Shaun Setareh
15 400 Capitol Mall, Suite 3000 9454 Wilshire Boulevard, Suite 907
Sacramento, CA 95814-4497 Beverly Hills, CA 90212
16 Telephone: (916) 447-9200 Telephone: (310) 888-7771
Facsimile: (916) 329-4900 Facsimile: (310) 888-0109
Email: tilong@orrick.com Email: shaun@setarehlaw.com
18
19
(FEDERAL EXPRESS): I caused the above-described document to be delivered via
20 ovemight delivery (Federal Express), by placing a copy in a separate FEDERAL EXPRESS
mailer and attaching a completed Federal Express air bill, with Standard Ovemight
21 delivery/Priority Delivery requested, and caused said mailer to deposited in the Federal
Express collection box at San Diego, Califomia.
22
23 X (State): I declare under penalty of perjiiry under the laws of the State of California that the
above is tme
Executed and correct.
on September 20, 2019, at La Jolla, California.
24 "
25
26
27 Piya Mukherjee
28 PROOF OF SERVICE
1 Case No. 34-2017-00210560-CU-OE-GDS
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2 NORMAN B. BLUMENTHAL (SBN 068687) APARAJIT BHOWMIK (SBN 248066) 3 PIYA MUKHERJEE (SBN 274217) VICTORIA B. RIVAPALACIO (SBN 275115) 4 2255 Caile Clara La Jolla, CA 92037 5 Tel: 858.551.1223 Fax: 858.551.1232 6 norm@bamlawca.com 7 Attomeys for Plaintiff ANDREA SPEARS 8 SETAREH LAW GROUP 9 SHAUN SETAREH (SBN 204514) shaun@setarehlaw.com 10 315 South Beverly Drive., Suite 315 Beverly Hills, CA 90212 11 Telephone: (310) 888-7771 12 Attomeys for Plaintiff TOMAS R. ARANA 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 COUNTY OF SACRAMENTO 15 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 16 of herself and on behalf of all persons similarly CU-OE-GDS situated. 17 Plaintiff, PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT R E PAGA 18 TRIAL PLAN 19 HEALTH NET OF CALIFORNIA, INC., a Date: September 27, 2019 Califomia Corporation; and Does 1 through 50, Tirne: 3 p.m. 20 inclusive. Dept.: 35 21 Defendants. 22 Original Complaint Filed: April 5, 2017 TOMAS R. ARANA, on behalf of himself, all FAC Filed: June 29, 2017 23 others similarly situated, Consolidated Complaint Filed: Dec. 21, 2017 24 Plaintiff, 25 V. 26 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1-50, 27 inclusive. 28 Defendant. PLAINTIFFS' CASE MANAGEMENT STATEMENT Filed by Fax PlaintifFs ANDREA SPEARS and TOMAS R. ARANA ("PlaintifFs") respectfully submit 2 the following Case Management Statement in advance of the Telephonic Case Management 3 Conference scheduled for September 27, 2019. 4 I. A TRIAL PLAN IS NOT NECESSARY FOR THE PAGA CLAIMS THAT 5 OVERLAP ENTIRELY OR ARE DERIVATIVE OF THE CERTIFIED CLAIMS 6 During the August 30, 2019 hearing, the Court certified the following classes and claims: 7 Miscalculation Class: All individuals who are or previously were employed by Defendant 8 Health Net of Califomia, Inc. ("Defendant") in Califomia and classified as non-exempt and 9 received "MedFlxWave" payments, "DenFlxWave" payments, SPOT Awards, ACA Incentive 10 payments and/or Wellness Incentive payments during the period of April 5, 2013 to December 11 31, 2016. PlaintifFs allege that the "MedFlxWave" payments, "DenFlxWave" payments, SPOT 12 Awards, ACA Incentive payments and/or Wellness Incentive were improperly calculated 13 and/or improperly excluded from the regular rate with respect to claims: • for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 1198; 14 • for unfair competition pursuant to Califomia Business & Professions Code § 17200, 15 et seq. ("UCL"), limited to the alleged violations of Califomia Labor Code §§510 and 1198; 16 • subject to the Court's mling on supplemental briefing, for inaccurate wage statements in violation of Califomia Labor Code § 226, limited to the allegations of 17 the claim for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 18 1198; • the derivative claim for waiting time penalties pursuant to Califomia Labor Code §§ 19 201, 202 and 203, limited to the allegations of the claim for unpaid overtime wages pursuant to Califomia Labor Code §§510 and 1198. 20 Off-the-Clock Class: All persons employed by Health Net of Califomia, Inc. and Health Net, 21 Inc. in hourly or non-exempt positions in Califomia during the relevant time, who logged onto 22 or tumed on a computer or device to access any time clock or timekeeping system to record 23 their hours worked. 24 With respect to the claims outlined above, the Court has already held that these certified claims 25 satisfied the prerequisites of class certification, including manageability. The claims certified under 26 C.C.P. section 382 are coextensive of the derivative PAGA claims, the trial of which will be based 27 on the same facts and law. Since the Court has deemed a trial on the certified claims manageable, 28 PLAINTIFFS' CASE MANAGEMENT STATEMENT 1 Plaintiffs understand that a trial plan, to the extent ordered, would not encompass the overlapping 2 violations of the PAGA caused by this conduct alleged by the Miscalculation Class, including 3 Califomia Labor Code sections 201, 202, 203, 204, 510, 558, 1194, 1198 and the Wage Order or 4 the overlapping violations of the PAGA caused by this conduct alleged by the OfF-the-Clock Class, 5 including Califomia Labor Code sections 223, 510, 1194, 1194.2, 1197, 1197.1, and 1198. 6 As such, Plaintiffs understand that the only remaining claims which the Court is concemed 7 about relate to the PAGA claims which are not derivative of certified class claims, outlined above. 8 The only remaining PAGA claims not derivative of certified claims are: 9 (l)that Defendant's policies and practices for providing meal period premiums to the 10 Aggrieved Employees during the time period of April 5, 2016 to December 31, 2016 11 violated Califomia law, and 12 (2) that Defendant's policies and practices failed to capture all hours worked by Aggrieved 13 Employees utilizing the EMPCenter timekeeping system during the time period of January 14 1, 2017 to present violated Califomia law. 15 IL A TRIAL PLAN IS NOT NECESSARY HERE AS MANAGEABILITY IS NOT A 16 REQUIREMENT FOR PAGA ACTIONS 17 Defendant's PAGA motions, which argued that Plaintiffs PAGA claims were 18 unmanageable, were denied on procedural grounds. The motions were like the motion criticized 19 by the Court of Appeal in a PAGA case surmounting to nothing more than a summary judgment 20 motion in disguise. See Carrington v. Starbucks Corporation, 30 Cal. App. Sth 504 (2018). 21 Requiring Plaintiffs to file a trial plan to prove manageability would needlessly recreate the same 22 procedural infirmities that plagued Defendant's briefing for the same reasons. 23 Indeed, requiring Plaintiffs to prove that the remaining PAGA claims are manageable 24 erroneously requires PlaintifFs to comply with a class certification requirement and would violate 25 the Supreme Court of Califomia's holding that class certification requirements, including 26 manageability, do not need to be satisfied for a PAGA action to proceed to trial. Arias v. Superior 27 Court, 46 Cal. 4th 969, 975 (2009); see also Mendoza v. Nordstrom, Inc., 2 Cal. 5th 1074, 1079 28 (2017) ("PAGA authorizes a representative action without the need for class certification."). The - 1 - PLAINTIFFS' CASE MANAGEMENT STATEMENT 1 PAGA action is not a dispute between an employee and an employer, but rather a "dispute between 2 an employer and the state, which alleges directly or through its agents - either the [LWDA] or 3 aggrieved employees - that the employer has violated the [Califomia] Labor Code." Iskanian v. 4 CLS Transportation Los Angeles, LLC, 59 Cal. 4th 348, 386-87 (2014). The employee bringing a 5 PAGA action is prosecuting a "law enforcement action" and "represents the same legal right and 6 interest as state labor law enforcement agencies[.]" Id. at 387 (intemal quotation marks omitted). 7 The submission of a trial plan itself was stated as a class action requirement, not a PAGA 8 requirement in Duran v. U.S. BankNat'l Ass'n, 59 Cal. 4th 1 (2014). Defendant's statement tellingly 9 points to no law authorizing a PAGA trial plan to be provided. The law in Califomia is stated by 10 Carrington where the only briefing on manageability was criticized as an improper motion and the 11 remedy was not for the parties to provide a trial plan, but to simply proceed with a trial ofthe case 12 under the court's already established pre-trail procedures. This the Plaintiffs are prepared to do by 13 complying with the Califomia Code of Civil Procedure, the Califomia Rules of Court, and 14 Sacramento Superior Court Local Rules including, but not limited to Local Rules 2.98, 2.99, and 15 2,99.02, for purposes of organizing these claims for trial. Indeed, although this Court has the power 16 to ensure that trial is manageable, it does not have the power to dismiss a non-class action claim 17 because the presentation of evidence at trial appears unmanageable. The Califomia Supreme Court 18 in Williams v. Superior Court described the difference between a class action and a PAGA claim 19 by clearly stating that "[a] uniform policy may be a convenient or desirable way to show 20 commonality of interest in a case where class certification is sought, but it is not a condition for 21 discovery, or even success, in a PAGA action where recovery on behalf of the state and aggrieved 22 employees may be had for each violation." Williams v. Superior Court, 3 Cal. 5th 531,559 (2017). 23 There is no law allowing trial courts to dispose of any non-class claim, including a PAGA claim, 24 on the grounds of manageability and to do so without a trial would violate Plaintiffs right to due 25 process. 26 Indeed, Califomia state and federal courts agree that manageability is not a requirement for 27 PAGA actions. Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3082 (LASC April 6,2018); 28 citing Zackaria v. Wal-Mart Stores, Inc. 2015 WL 6745714 (CD. Cal., Nov. 3, 2015), at *6 ["the -2- PLAINTIFFS' CASE MANAGEMENT STATEMENT 1 court finds defendant's manageability argument inconsistent with PAGA's purpose and statutory 2 scheme."].) "Holding that individualized liability determinations make representative PAGA 3 actions unmanageable, and therefore untenable, would impose a barrier on such actions that the 4 state law enforcement agency does not face when it litigates those cases itself" Id. 5 "To hold that a PAGA action could not be maintained because the individual assessments 6 regarding whether a violation had occurred would make the claim unmanageable at trial would 7 obliterate [the purpose of PAGA], as every PAGA action in some way requires some individualized 8 assessment regarding whether a Labor Code violation has occurred. Plaisted v. Dress Barn, Inc., 9 2012 U.S. Dist. LEXIS 135599, *10 (CD. Cal. Sept. 20, 2012); see also Brown v. Am. Airlines, 10 Inc., 2015 U.S. Dist. LEXIS 150670, *3 (CD. Cal. Oct. 5, 2015) ["every PAGA action in some 11 ways requires some individualized assessment regarding whether a Labor Code violation has 12 occurred."].) 13 As such, the submission of a trial plan to determine whether the PAGA allegations are 14 manageable is "inconsistent with PAGA's purpose and statutory scheme." 15 III. A TRIAL PLAN IS NOT NECESSARY HERE AS THE PAGA CLAIMS ARE 16 DISCRETE IN NATURE 17 As stated above. Plaintiffs intend to seek PAGA penalties with respect to two claims aside 18 from the PAGA penalties derivative of certified claims: (1) that Defendant's uniform policies for 19 providing meal period premiums to the Aggrieved Employees during the time period of April 5, 20 2016 to December 31, 2016 violated Califomia law, and (2) that Defendant's uniform policies 21 failed to capture all hours worked by Aggrieved Employees utilizing the EMPCenter timekeeping 22 system during the time period of January 1, 2017 to present violated Califomia law. 23 As outlined below, Plaintiffs' remaining PAGA claims not derivative of certified claims are 24 discrete in nature and will be based on Defendant's own business records, testimony fi-om 25 Defendant's "Person Most Knowledgeable" designee, and testimony from Plaintiffs' expert 26 witness. 27 A. Defendant's Failure to Provide Meal Period Premiums 28 During the time period of April 5, 2016 to December 31, 2016, Defendant's "Person Most -3- PLAINTIFFS' CASE MANAGEMENT STATEMENT 1 Knowledgeable" testified that Defendant's uniform policy for providing meal period premiums was 2 for all meal period premiums to be paid using the payroll code "DTO". However, the policies 3 provided to all Aggrieved Employees uniformly failed to advise them to use the pay code "DTO" 4 for meal period premiums. This resulted in numerous unpaid meal period premiums. 5 As such. Plaintiff will rely on the testimony from Defendant's PMK witness. Defendant's 6 own written policies, and a report by Plaintiffs expert analyzing the frequency meal period 7 violations which did not result in the payment of a meal period premium. Defendant may then raise 8 any defenses as the employer bears the burden of proving any and all defenses, not Plaintiffs. In 9 Carrington v. Starbucks Corporation, 30 Cal. App. 5th 504 (2018), the court concluded that a 10 PAGA action pertaining to meal break violations for over a hundred thousand aggrieved employees 11 was not over-individualized to render it unmanageable. Carrington, 30 Cal. App. 5th at 526. Here, 12 there are only 2,551 Aggrieved Employees and the primary issue of contention is Defendant's 13 failure to provide a policy and practice for the Aggrieved Employees to record meal period 14 penalties. In Carrington, after the defendant's motion for summary adjudication in disguise failed, 15 the case proceeded to trial. This procedure was upheld by the Califomia Court of Appeal without 16 any requirement that the trial had to be preceded with the briefing of a PAGA trial plan or else face 17 dismissal. No law supports that plan. 18 B. Defendant's Failure to Capture and Pay For All Hours Worked 19 During the time period beginning January 1, 2017 to the present. Defendant switched to a 20 new timekeeping system. As a result of the change to the new EMPCenter timekeeping system, 21 Defendant's policies changed accordingly. (Long Decl. ISO Opp. to Mot. For Class Cert., ^ 3, Ex. 22 B at 54:6-7; Rodes Decl. ISO Opp. to Mot. For Class Cert., T[ 7.) Defendant submitted a declaration 23 from its Director of Human Resources stating that the previous timekeeping system, PeopleSoft, 24 and the current timekeeping system, EMPCenter, have both always permitted employees to 25 manually enter their start and stop times. (Rodes Decl. ISO Opp. to Mot. For Class Cert., ^ 7.) 26 However, the policies provide to all Aggrieved Employees uniformly failed to advise them that 27 they could manually enter their start and stop times. This resulted in Aggrieved Employees who 28 were not paid for all hours worked. -4- PLAINTIFFS' CASE MANAGEMENT STATEMENT 1 Similariy, PlaintifF will rely on the testimony from Defendant's PMK, declarations 2 submitted by Defendant, Defendant's own written policies, and a report by Plaintiffs expert 3 analyzing the amount of time and the frequency with which Defendant's policy failed to capture all 4 hours worked by aggrieved employees. Likewise, Plaintiff will follow the trial model successfully 5 utilized in Carrington, supra at 526. 6 IV. CASE TIMELINE 7 Defendant has not provided any authority that a prerequisite for uncertified PAGA claims 8 to proceed to trial is the submission of a trial plan. After consideration of the Court's questions 9 posed in the tentative mling regarding Defendant's PAGA motions as well as Defendant's Case 10 Management Conference Statement, Plaintiffs believe that the appropriate next step in this action 11 is for Plaintiffs to complete additional discovery and prove the Califomia Labor Code violations at 12 trial. The remaining discovery can be completed during the class notice opt-out period which has 13 not yet begun. 14 All of the questions from the Court's Minute Order are appropriate questions for motions 15 in limine. In order to provide both PlaintifFs and Defendant an appropriate amount of time to 16 respond to such motions in limine, PlaintifFs would propose that both sides be provided thirty (30) 17 days to respond. Details regarding Plaintiffs' trial of the entire case, including the PAGA claims 18 that do and do not overlap with the class claims can and should be detailed by reference to already 19 established pre-trial procedures set forth in the Califomia Code of Civil Procedure, the Califomia 20 Rules of Court, and Sacramento Superior Court Local Rules including, but not limited to. Local 21 Rules 2.98, 2.99, and 2.99.02. The Court can constme this process as a trial plan, but Plaintiffs 22 object to the idea of importing the class certification requirements of manageability and trial plans 23 in the PAGA claims to the extent such a process violates Arias' prohibition on requiring class 24 certification elements to be proven for non-class claims, like PAGA, to proceed. 25 26 27 28 -5- PLAINTIFFS' CASE MANAGEMENT STATEMENT 1 Dated: September 20,2019 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 2 3 4 APARAJIT] PIYA MUKHERJEE 5 AttorneysforPlaintiff ANDREA SPEARS 6 7 Dated: Septeinber 20,2019 SETAREH LAW GROUP 8 9 SHAUlSrSETAREH 10 WILLL\M PAO ALEXANDRA R. MCINTOSH 11 Attomeys fm PlaintiH TOMAS R. ARANA 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6- PLAINTIFFS' CASEMANAQEM^ STATEMENT 1 PROOF OF SERVICE ^ STATE OF CALIFORNIA, COUNTY OF SAN DIEGO 3 I, Piya Mukherjee, am employed in the County of San Diego, State of Califomia. I am over 4 the age of 18 and not a party to the within action. My business address is 2255 Calle Clara, La , Jolla, Califomia 92037. 5 ^ On September 20, 2019,1 served the document(s) described as: 7 1. PLAINTIFFS' CASE MANAGEMENT CONFERENCE STATEMENT RE PAGA TRIAL PLAN 8 9 (BY MAIL): I caused each such envelope, with postage thereon flilly prepaid, to be 10 placed in the United States mail at San Diego, California. I am readily familiar with this firm's business practice for collection and processing of correspondence for 11 mailing with the U.S. Postal Service pursuant to which practice the correspondence j2 will be deposited with the U.S. Postal Service this same day in the ordinary course of business (C.C.P. Section 10139a); 2015.5): 13 " j4 Timothy J. Long SETAREH LAW GROUP ORRICK, HERRINGTON & SUTCLIFFE LLP Shaun Setareh 15 400 Capitol Mall, Suite 3000 9454 Wilshire Boulevard, Suite 907 Sacramento, CA 95814-4497 Beverly Hills, CA 90212 16 Telephone: (916) 447-9200 Telephone: (310) 888-7771 Facsimile: (916) 329-4900 Facsimile: (310) 888-0109 Email: tilong@orrick.com Email: shaun@setarehlaw.com 18 19 (FEDERAL EXPRESS): I caused the above-described document to be delivered via 20 ovemight delivery (Federal Express), by placing a copy in a separate FEDERAL EXPRESS mailer and attaching a completed Federal Express air bill, with Standard Ovemight 21 delivery/Priority Delivery requested, and caused said mailer to deposited in the Federal Express collection box at San Diego, Califomia. 22 23 X (State): I declare under penalty of perjiiry under the laws of the State of California that the above is tme Executed and correct. on September 20, 2019, at La Jolla, California. 24 " 25 26 27 Piya Mukherjee 28 PROOF OF SERVICE 1 Case No. 34-2017-00210560-CU-OE-GDS