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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) FILED/ENDORSED
3 Victoria B. Rivapalacio (State Bar #275115)
4
2255 Calle Clara MAY - 6 2020
La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232 By:. R. San Mlqiifil
Deputy Clertc
6 Attorneys for Plaintiff
7
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 IN AND FOR THE COUNTY OF SACRAMENTO
11
12
ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560-CU-OE-
13 of herself and on behalf of all persons GDS (Consolidated with Case No. 34-2017-
similarly situated. 00216685-CU-OE-GDS)
14
15 Plaintiff,
16 vs. PLAINTIFF ANDREA SPEARS'S OPPOSITION
TO DEFENDANT'S MOTION TO STRIKE
17 HEALTH NET OF CALIFORNLA, INC., a SPEARS' REPRESENTATIVE PAGA CLAIMS
Califomia Corporation; and Does 1 through
18 50, Inclusive,
Hearing Date: May 8, 2020
19 Defendants. Hearing Time: 11 ;00 a.m
Dept.: 41
20 Judge: Hon. David De Alba
TOMAS R. ARANA, on behalf of himself,
21 all others similarly situated.
Original Complaint Filed: April 5,2017
22 Plaintiff, FAC Filed: June 29, 2017
Consolidated Complaint Filed: Dec. 21, 2017
23 vs.
24 HEALTH NET OF CALIFORNIA, INC., a
Califomia corporation; and DOES 1 through
25 50, inclusive.
26 Defendants.
27
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
CASE No. 34-2017-00210560
1 TABLE OF CONTENTS
2
3 I. INTRODUCTION
4 IL ARGUMENT 2
5 A. Plaintiffs LWDA Notice Sufficiently Describes The Facts And Theories Supporting
6 Defendant's Violations 2
7 1. Plaintiffs Exhausted the Meal Period PAGA Claim 4
8 2. Plaintiffs Exhausted the Miscalculation PAGA Claim 4
9 3. Plaintiffs Exhausted the Off the Clock PAGA Claim 5
10 B. Defendant's Manageability Argument Lacks Merit And Is Based On A False I*remise .6
11 1. Manageability Is Not A Requirement For PAGA Actions 6
12 2. Individualized Analyses Do Not Make Plaintiffs PAGA Action Unmanageable 6
13 3. Defendant's Relies on Case Law With Contrary Holdings to
14 Defendant's Position 7
15 4. Plaintiffs PAGA Action Is Manageable 8
16 C. Plaintiffs' Meal Period PAGA Claim Is Consistent With Prior Positions 11
17 D. Defendant Filed An Unauthorized Motion Seeking Relief That Has Previously Been
18 Denied Three Times 12
19 II. CONCLUSION 13
20
21
22
23
24
25
26
27
28
~ PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
CASE No. 34-2017-00210560
TABLE OF AUTHORITIES
2
Pages:
3 Cases:
4 Alcantar v. Hobart Service,
800 F.3d 1047 (9th Cir. 2015) 2,5
5'
Arias v. Superior Court
6 46 Cal. 4th 969 (2009) 1,2,6-7,11
7 Brooks v. Amerihome Mortg. Co., LLC,
2020 Cal. App. LEXIS 287 (Ct. App. Mar. 16, 2020) 3
8
Brown v. Am. Airlines, Inc.,
9 2015 U.S. Dist. LEXIS 150670 (CD. Cal. Oct. 5, 2015) 6
10 Brown v. Ralphs Grocery Co.
28Cal. App. 5th 824 (2018) 5
11
Cardenas v. McLane Foodservices, Inc.,
12 796 F. Supp. 2d 1246 (CD. Cal. 2011) 2-3
13 Carrington v. Starbucks Corporation
30 Cal. App. 5th 504 (2018) 2,8,9-10,12
14
Green v. Bank of Am., N.A.,
15 634 Fed. Appx. 188 (9th Cir. 2015) 1-2
16 Heredia v. Eddie Bauer LLC,
2020 U.S. Dist. LEXIS 53929 (N.D. Cal. Mar. 27, 2020) 7
17
Hibbs-Rines v. Seagate Techs.,
18 2009 U.S. Dist. LEXIS 19283 (2009) 8
19 Huff V. Securitas Sec. Servs. USA, Inc
23Cal.App.5th745(2018) 5
20
Iskanian v. CIS Transportation Los Angeles, LLC
21 59 CaUth 349 (2014) 7
22 Mejia v. 99 Cents Only Stores,
2018 Cal. Super. LEXIS 3082 (LASC April 6, 2018) 6
23
Mendoza v. Nordstrom, Inc.
24 2 Cal. 5th 1074(2017) 6
25 Ochoa-Hernandez v Cjaders Foods, Inc.,
2010 U.S. Dist. LEXIS 32774 (2010) 7
26
Plaisted v. Dress Barn, Inc.,
11 2012 U.S. Dist. LEXIS 135599 (CD. Cal. Sept. 20, 2012) 6
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
CASE No. 34-2017-00210560
1 Robles V. Schneider Nat'l Carriers, Inc.,
2017 U.S. Dist. LEXIS 132065 (CD. Cal. Aug. 15, 2017) 3
2
Tseng V. Nordstrom, Inc.,
3 2016 U.S. Dist LEXIS 176990 (CD. Cal. Dec. 19, 2016) 8
4 Williams v. Superior Court
3Cal.5th53] (2017) 8
5
Zackaria v. Wal-Mart Stores, Inc..
6 2015 WL 6745714 (CD. Cal. Nov. 3, 2015) 6-7
7 Zayers v. Kiewit Infrastructure W. Co.,
2017 U.S. Dist. LEXIS 216715 (CD. Cal. Nov. 9, 2017) 3,7-8
8
9 Statutes;
10 Cal. Labor Code § 226 4
11 Cal. Labor Code § 2699.3 1-4
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
~ PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
CASE No. 34-2017-00210560
L INTRODUCTION
2 Defendant's fourth attempt at the same motion, to summarily dismiss Plaintiffs' PAGA claims, should
3 be denied, just as the three before it. This current iteration of this request is brought explicitly against the
4 Court's orders and should not proceed. (Transcript, Exhibit 5. p.31:23-32:1 (discussing the Case Management
5 Conference set for discussing PlaintifPs Trial Plan: " I don't think [Defendant's PAGA motions] should be
6 filed on this date. There is a lot to digest and depending on the discussions there may need to be decisions
7 on some of these sub elements before any motion like that is appropriate.")(emphasis added).)'
8 Defendant's Motion to Strike PlaintifPs Representative PAGA Claims ("Motion to Strike") should
9 be denied on substantive grounds, as well. The PAGA Notice Plaintiff provided to Labor Workforce
10 Development Agency ("LWDA") more than satisfies the requirements set forth in Califomia Labor Code
11 § 2699.3. The case law interpreting PAGA Notice requirements makes clear that "written notice is
12 sufficient so long as it contains some basic facts about the violations, such as which provision was
13 allegedly violated and who was allegedly harmed." Green v. BankofAm., N.A., 634 Fed. Appx. 188,191
14 (9th Cir. 2015). Here, Plaintiff met the specificity requirements by including in the PAGA Notice the "basic
15 facts about the violations" and by attaching thereto a true and correct copy of Plaintiff s entire complaint
16 with fiirther details of the allegations against Defendant. As a result, PlaintifF may lawfully pursue civil
17 penalties for Defendant's violation of the meal period requirements of the Califomia Labor Code,
18 Defendant's failure to compensate Plamtiffs for all time worked, as well as Defendant's failure to pay
19 overtime wages by miscalculating the regular rate of Defendant's employees. These allegations are specified
20 in great detail throughout the originally filed Complaint that was attached to Plaintiffs PAGA Notice.
21 (Exhibit 1: Plaintiff Complaint, at t H 9-11,14-17,21-23, 32, 36, 37, 46, 56-71.)
22 Defendant's Motion must also fail because it is premised on a "manageability" requirement that does
23 not exist for PAGA actions. See, Arias v. Superior Court, 46 Cal. 4th 969,975 (2009). Defendant failed to
24 comply with the mandate of the Califomia Supreme Court in that the class certification requirements do not
25 apply to PAGA claims. Id. at 975. Defendant's failure to understand this holding of Arias is shown by
26 Defendant'sfilingof this Motion and asserting that Plaintiffs' meal period claim should be dismissed based
27
28 ' All Exhibits are attached to the Declaration of Victoria B. Rivapalacio ("Rivapalacio Decl."), filed
concurrently herewith.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
1 CASE No. 34-2017-00210560
1 on judicial estoppel because the Court declined to certify a class for the same claim.
2 Defendant's argument that Plaintiffs' PAGA claim requires the resolution of individualized disputes
3 also fails. If Defendant's bloated number of aggrieved employees were correct, the Court would still be
4 evaluating an analysis only one fourth the number of all aggrieved employees in Carrington v. Starbucks
5 Corp., which involved an analysis of27,146 employees, and was successfully tried. Id., 30 Cal.App.5th 504,
6 515-516 (2018). Most importantly, however, is that Plaintiffs submitted a trial plan that demonstrates the
7 consideration and evaluation of these claims will be manageable. Indeed, using the time and payroll records
8 ofthe aggrieved employees and the deposition testimony of Defendant's PMK, Plaintiffs' expert has already
9 analyzed the data, can demonstrate liability, and can determine penahies owed.
10 For all these reasons as set forth more fully below. Plaintiffs respectfully request the Court deny
11 Defendant's Motion in its entirety.
12
II. ARGUMENT
13 A. Plaintiff's LWDA Notice Sufficiently Describes The Facts And Theories Supporting
Defendant's Violations
14
The PAGA Notice Plaintiff sent to the LWDA more than satisfies the requirements of Cal. Labor
15
Code § 2699.3. According to controlling precedent, "that statute requires the employee to give written notice
16
of the alleged Labor Code violation to both the employer and the Labor and Workforce Development
17
Agency, and the notice must describe facts and theories supporting the violation." {Arias, supra, 46 Cal.4th
18
at 981.) "[T]he plain meaning" of the phrase "'facts and theories to support [the] alleged violation'"
19
"suggests that [the p]laintiffs were required to put forward sufficient facts to support their claims of labor
20
violations...." Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246, 1260 (CD. Cal. 2011). In
21
other words, "a written notice is sufficient so long as it contains some basic facts about the violations,
22
such as which provision was allegedly violated and who was allegedly harmed." Green, supra, 634 Fed.
23
24 Appx.188 [citing Alcantar v. Hobart Service 800 F.3d 1047 (9th Cir. 2015).].
25 In Green, supra, the plaintiffs' PAGA notice was sufficient when it "contained: (1) the specific statute
26 Bank of America allegedly violated, (2) facts about what position plaintiffs held, (3) a statement that
27 plaintiffs could use a seat in their position, and (4) a specific identification of who was allegedly harmed."
28 Id. "These facts put the LAVDA and Bank of America on notice about the nature of the plaintiffs' clauns.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
2 CASE No. 34-2017-00210560
namely, that Bank of America was not providing chairs for plaintiffs as Califomia law requires." Id.
2 "Courts recognize that there are inherent limitations in PAGA letters because, of course, no discovery
3 has yet occurred and the level of detail required should be constmed liberally in favor of employees." Zayers
4 V. Kiewit Infrastructure W. Co., 2017 U.S. Dist. LEXIS 216715, at *19 (CD. Cal. Nov. 9, 2017)(intemal
5 citations omitted)(holding that plaintiffs PAGA letter sufficiently detailed plaintiffs meal period claim,
6 overtime claim, and reimbursement claim). To that end, "plaintiffs are not required to include every
7 potential fact or every future theory." Robles v. Schneider Nat'l Carriers, Inc., 2017 U.S. Dist. LEXIS
8 132065 at *27 (CD. Cal. Aug. 15,10\T){citing Cardenas, supra, 796 F. Supp. 2d at 1259-60).
9 In Robles, supra, the plaintiffs letter to the LWDA included allegations that plaintiff had been
10 allegedly misclassified and, thereby, deprived of certain protections provided by the Labor Code. Id. at *28.
11 Importantly, "[p]laintiff attached a copy of his complaint to that letter" that "included all of [p]laintiff s
12 legal thoeries for recovery based on those facts." Id. The standards for specificity of pleadings is significantly
13 higher than that for notice pursuant to PAGA:
14 Notwithstanding that the complaint did not satisfy the relatively rigorous standards of
Iqbal/Twombly, the Courtfindsthat it was sufficient to meet Plaintiffs obligations under
15 Section 2699.3. Accordingly, Plaintiff may proceed on his PAGA claims.
16 \Id
17 Additionally, in McLane Foodservices, the plaintiff sfirstamended complaint attached a copy of their
18 PAGA Notice, which stated, "Plaintiffs' counsel is representing 'a group of tmcker drivers who worked for
19 McLane Food Service Inc.' and the letter is 'notice, and a request, pursuant to Califomia Labor Code
20 § 2699.3 that [the LWDA] investigate the claims in this impending civil action.'" McLane Foodservices,
21 supra, 796 F.Supp.2d. at 1259. "In the letter, counsel described the action as being 'brought on behalf of
22 thirty-seven tmck drivers,' whom it then names. [] The letter also notes that [the defendant] employed
23 plaintiffs "as tmck drivers out of its Southem Califomia distribution center." Id. at 1259. Based on the
24 foregoing, the court found the plaintiffs' PAGA notice to be sufficient. Id. At 1260-1261 .When the complaint
25 contains the allegations and the complaint is attached to the PAGA letter, a defendant is on notice as to the
26 allegations in the complaint because "it is the complaint, and not the notice, that sets forth the issues in
27 controversy." Brooks v. Amerihome Mortg. Co., LLC, 2020 Cal. App. LEXIS 287, at *1 (Ct. App. Mar. 16,
28 2020).
Here, Plaintiff s PAGA Notice contains facts and theories to put the LWDA and Defendant on notice
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
3 CASE No. 34-2017-00210560
about the nature of Plaintiff s claims. Specifically, Plaintiffs April 5, 2017 letter to the LWDA stated:
2 Plaintiff was employed by Defendant in Califomia from December of 2013 to October of
2016 as a nonexempt employee entitled to the legally required meal and rest breaks and
3 payment for all time worked under Defendant's control, including overtime worked.
Defendant, however, unlawfully failed to record and pay Plaintiff and other aggrieved
4 employees for all of their time worked, including overtime wages, and for all of their
missed meal and rest breaks. As a consequence of the aforementioned violations. Plaintiff
5 further contends that Defendant failed to provide accurate wage statements to her, and other
aggrieved employees, in violation of Califomia Labor Code section 226(a). Additionally,
6 Plaintiff contends that Defendant failed to comply with Industrial Wage Order 7(A)(3) in that
Defendant failed to keep time records showing when Plaintiff began and ended each shift and
7 meal period. Said conduct, in addition to the foregoing, violates Labor Code §§ 201,202,203,
204, 226(a), 226.7, 510, 512, 558, 1194, 1197, 1197.1, 1198, Violation ofthe applicable
8 Industrial Welfare Commission Wage Order(s), and is therefore actionable under Califomia
Labor Code section 2699.3.
9
(Exhibit 2. PAGA Notice at p. 1 (emphasis added).)
10
In addition. Plaintiffs PAGA Notice attached a tme and correct copy of Plaintiffs complete
11
Complaint, which detailed the fact and theories which supported Plaintiffs allegations against Defendant
12
and the details of the specific work performed by PlaintifF, as well as the illegal practices used by Defendant.
13
1. Plaintiffs Exhausted the Meal Period PAGA Claim
14
Despite the foregoing. Defendant brazenly claims Plaintiff s PAGA Notice was insufficient. PlaintifF
15
Spears clearly included notice in her PAGA letter as to "their missed meal and rest breaks" (Exhibit 2. PAGA
16
Notice at p. 1) and attached the complaint, which further specified that "Plaintiff., forfeited meal breaks
17
without additional compensation... in accordance with Defendant's strict corporate policy and practice"
18
(Exhibit 1. Complaint at p.5:22-24). That Plaintiffs theory of liability, post-discovery, has evolved to be
19
more specific is well within thefi-ameworkof the notice requirements of PAGA. McLane Foodservices, Inc.,
20
supra, 796 F. Supp. 2d at 1260 (stating there is "no authority suggesting that PAGA's requirement that
21
employees provide in their notice 'facts and theories to support [an] alleged violation' necessitates inclusion
22
of every potential fact or every future theory.").
23
2. Plaintiffs Exhausted the Miscalculation PAGA Claim
24
Similarly, Plaintiffs' claims as to the miscalculation of the regular rate of pay were clearly within the
25
written notice to the LWDA, further specified in the Complaint that was attached. After discovery
26
commenced. Plaintiffs' allegations evolved such that Plaintiffs are now able to name the different types
27
compensation that were not included in the calculation of the regular rate and that were included in the term
28
non-discretionary incentive" payments referenced in the Complaint that was attached and incorporated into
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
4 CASE No. 34-2017-00210560
Plaintiff Spears's letter to the LWDA. (Exhibit 1. Complaint at p.4:16-5:4.)
2 Importantly, Plaintiffs, in their role on behalf ofthe State ofCalifomia in an enforcement action, need
3 not have suffered the exact violations for which they may pursue PAGA penalties. Huff v. Securitas Sec.
4 Servs. USA, Inc., 23 Cal.App.5th 745, 757 (2018).
5 For PAGA standing a plaintiff need only have been employed by the violator and affected by
"one or more" of the alleged violations. (§ 2699, subds. (a), (c).) That requirement strikes a
6 reasonable balance, requiring a plaintiff to have some connection to the employer's unlawful
practices, while also advancing the state's interest in vigorous enforcement.
7
Id. This is further reason why a PAGA letter need not specifically name, for example, each type of
8
compensation that an employer failed to include in the regular rate.
9
As such, Plaintiffs' PAGA letter, here, provided sufficient notice and Plaintiffs must be permitted to
10
pursue the miscalculation claim pursuant to PAGA.
11
3. Plaintiffs Exhausted the Off the Clock PAGA Claim
12
In regard to the off-the-clock claim. Plaintiffs referenced such work in PlaintiffSpears' PAGA letter
13
"Defendant... unlawfully failed to record and pay PlaintifF and other aggrieved employees for all of their
14
time worked" (Exhibit 2. PAGA Letter, p. 1) - and in Plaintiff Arana's PAGA letter, which states that "[a]s
15
a result of improperly misclassified as exempt, Arana and the aggrieved employees were not paid for all
16
hours worked" (Exhibit 4. Arana's PAGA Letter, p. 9). Indeed, Defendant concedes that Arana "made some
17
mention of employees working off the clock in his LWDA Notice" (Mot. to Strike Arana's PAGA Claims,
18
ROA 484, at 12:26-28), it takes issue that "EMPCenter PAGA Claim is not... mentioned in the LWDA
19
Notice" (Mot. to Strike, ROA 488, at 16:10-11) (emphasis added). Based on this failure to specifically name
20
the timekeeping system, Defendant argues that the claim was not exhausted and must be stricken, a
21
contention at odds with Califomia public policy that favors vindication of consumer protections.
22
Williams v. Superior Court, 3 Cal.5th 531, 548 (2017). PAGA exhaustion requirements do not necessitate
23
"inclusion of every potential fact or every future theory." Cardenas, 796 F. Supp. 2d at 1260.
24
Finally, Plaintiffs PAGA Notice is a far cry from instances where the court found PAGA Notices
25
insufficient. See Alcantar, supra, 800 F.3d 1047 ("the notice did not allow the LWDA 'to intelligently
26
assess the seriousness of the alleged violations' or give the employer enough information to determine
27
what policies or practices are being complained of so as to know whether to fold orfight..");Brown v.
28
Ralphs Grocery Co. 28 Cal. App. 5th 824, 837-838 (2018)("a string of legal conclusions that parroted the
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
5 CASE No. 34-2017-00210560
allegedly violated Labor Code provisions.... did not give sufficient information for the LWDA to assess
2 the seriousness of the alleged violations...."). Unlike in Alcantar and Brown, Plaintiffs PAGA Notice
3 gave sufficient information for the LWDA to assess the seriousness of the alleged violations, and allowed
4 Defendant to determine what policies or practices were at issue to have an opportunity to cure.
B. Defendant's Manageability Argument Lacks Merit And Is Based On A False
5 Premise
6 1. Manageability Is Not A Requirement For PAGA Actions
Defendant's Motion requests the Court to write out of the law the Califomia Supreme Court's
7
holding in Arias, supra, which specifically stated, "those [class action] requirements need not be met
8
when an employee's representative action against an employer is seeking civil penalties under the
9
Labor Code Private Attorneys General Act of 2004." Id. at 975. Indeed, Defendant conceded in its
10
prior Motion As To Why Spears's Case Should Not Proceed As A PAGA Representative Action ("Def.'s
11
PAGA Motion"), filed December 21, 2018, that "Arias makes clear that PAGA claims need not satisfy
12
class action requirements." (Def's PAGA Motion at p. 11, fh 3.)
13
"PAGA authorizes a representative action without the need for class certification." Mendoza v.
14
Nordstrom, Inc., 2 Cal. 5th 1074, 1079 (2017). "The court is persuaded that manageability is not a
15
basis to strike a PAGA action." Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3082 (LASC
16
April 6, 2018)(citing Zackaria v. Wal-Mart Stores, Inc. 2015 WL 6745714 (CD. Cal., Nov. 3, 2015), at
17
18 *6 ["the courtfindsdefendant's manageability argument inconsistent with PAGA's purpose and
19 statutory scheme."]). "Holding that individualized liability determinations make representative PAGA
20 actions unmanageable, and therefore untenable, would impose a barrier on such actions that the state law
21 enforcement agency does not face when it litigates those cases itself." Id.
22 Because Arias and its progeny hold that a representative PAGA plaintiff need not satisfy any of
23 the class action requirements. Defendant cannot plausibly argue that one particular class action
24 requirement - that of manageability - must be proved in order to maintain a PAGA action.
25 2. Individualized Analyses Do Not Make PlaintifTs PAGA Action
Unmanageable
26 Notwithstanding the fact that "manageability" is not a requirement for PAGA actions.
27 Defendant's entire "manageability" argument is predicated on the false claim that the individual analyses
28 of the aggrieved employees would render Plaintiffs PAGA action "unmanageable." Defendant's
argument is contrary to controlling case law. "To hold that a PAGA action could not be maintained
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
6 CASE No. 34-2017-00210560
1 because the individual assessments regarding whether a violation had occurred would make the
2 claim unmanageable at trial would obliterate [the purpose of PAGA], as every PAGA action in
3 some way requires some individualized assessment regarding whether a Labor Code violation has
4 occurred. Plaistedv. Dress Barn, Inc., 2012 U.S. Dist. LEXIS 135599, *]0 (CD. Cal. Sept. 20, 2012);
5 see also. Brown v. Am. Airlines, Inc., 2015 U.S. Dist. LEXIS 150670, *3 (CD. Cal. Oct. 5, 2015)
6 ("every PAGA action in some ways requires some individualized assessment regarding whether a
7 Labor Code violation has occurred.").). "The purpose of PAGA 'is to incentivize private parties to
8 recover civil penalties for the govemment that otherwise may not have been assessed and collected by
9 overburdened state enforcement agencies.'" Zayers, 2017 U.S. Dist. LEXIS 216715 at "^SO (quoting
10 Ochoa-Hernandez v Cjaders Foods, Inc., 2010 U.S. Dist. LEXIS 32774 (N.D. Cal. 2010).) "Holding
11 that individualized liability determinations make representative PAGA actions unmanageable, and
12 therefore untenable, would impose a barrier on such actions that the state law enforcement agency
13 does not face when it litigates those cases itself." /(/.(citing Iskanian, supra, 59 Cal.4th at 380; Arias,
14 supra, 46 Cal. 4th at 973). "Imposing such a requirement, found nowhere in PAGA itself and not
15 imposed upon the government, would 'obliterate [the] purpose' of representative PAGA actions."
16 Id. at "^31 (quoting Zackaria, supra, 142 F.Supp.3d at 959.) Accordingly, the Zayers Court "decline[d] to
17 departfromthe holdings of other courts in Califomia and in this District, which do not impose a
18 manageability requirement on a representative PAGA claim." Id.
19 The Northem District held to this legal precedent in a recent holding in Heredia v. Eddie Bauer
20 LLC, 2020 U.S. Dist. LEXIS 53929 (N.D. Cal. Mar. 27, 2020). There, the defendantfileda motion to
21 strike the plamtiffs PAGA claims stricken based on manageability and relying heavily on the court's
22 previous decertification order as to the claims at issue. Id, at *9-10. The court held, however, that the
23 claims, while unmanageable for the purposes of certification, were suitable for a PAGA cause of action
24 because "that PlaintifF must prove a violation as to each aggrieved employee in order to recover civil
25 penalties for that employee does not support the conclusion that permitting Plaintiff to attempt to prove
26 her case would resuh in an unmanageable trial...." Id., at *\l-\7>. The Northem District Court, further,
27 referenced the plaintiffs trial plan to demonstrate that, in fact, the plaintiff proposed a manageable trial.
28 Id.,zX*\2) ("[T]he Court notes that Plaintiff has presented a fairly manageable trial plan because Plaintiff
has identified a total of 10 trial witnesses.")
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
7 CASE No. 34-2017-00210560
1 Plaintiffs position, here, is identical to that of the plaintiff in Heredia, supra. That the claims
2 were not certified does not evidence that the claims cannot proceed pursuant to PAGA. Further, Plaintiff
3 has submitted a Trial Plan that requires only six witnesses, a number well within "manageable."
4 3. Defendant's Relies on Case Law With Contrary Holdings to Defendant's
Position
5 Nevertheless, Defendant's Motion contends that the PAGA claim of the State of Califomia can be
6 denied on the ground that litigation would be "unmanageable" by relying on, primarily, Williams v.
7 Superior Court, supra, a case that reaffirms Califomia's broad discovery rights, but makes no holding
8 regarding the applicability of manageability to a PAGA claim. Id. at 551.
9 Defendant also cites to Zayers, supra, the holding of which supports Plaintiffs' position:
[T]he argument that the PAGA claim should still be dismissed because the individualized
10 determinations required under PAGA would make trying such a claim unmanageable ...
[is] inconsistent with PAGA's purpose and statutory scheme. PAGA contemplates civil
11 penalties for "a violation" of the Califomia Labor Code, see Cal. Lab. Code § 2699(a),
which will often require individualized assessments of liability.
12
13 Zayers, 2017 U.S. Dist. LEXIS 216715, at *29.
14 Similarly, Defendant cites to Hibbs-Rines v. Seagate Techs., LLC, 2009 U.S. Dist. LEXIS 19283
15 (N.D. Cal. Mar. 2,2009), where the court denies defendant's motion to strike PAGA allegations because
16 individual inquiry is anticipated by the PAGA statute. Id.aX*\\. Thus, imposing a manageability
17 requirement, found nowhere in PAGA itself and not imposed upon the govemment were it pursuing the
18 claims, would obliterate the purpose of representative PAGA actions. Zayers, 2017 U.S. Dist. LEXIS
19 216715, at *29.
4. Plaintiffs PAGA Action Is Manageable
20
A trial plan for a PAGA action need not avoid all individual analysis. See Tseng v. Nordstrom,
21
Inc., 2()16 U.S. Dist. LEXIS 176790, at *18 (CD. Cal. Dec. 19, 2016). In Tseng, the court denied a
22
defendant's motion for judgment on the pleadings as to a PAGA claim because, while there is no
23
manageability requirement under PAGA, the plaintiffs trial plan demonstrated that a trial could, in fact,
24
proceed manageably. Id. That the plaintiff may still be required to demonstrate violations on an
25
individual basis did not bar the casefromproceeding:
26 At trial, plaintiff may prove that defendant violated the Califomia Labor Code with
27 respect to the employees it describes as 'aggrieved employees,' some ofthe employees, or
he may not prove any violations at all. But the fact that proving his claim may be difficult
28 or even somewhat burdensome for himself and for defendant does not mean that he cannot
bring it at all.
\ld
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
8 CASE No. 34-2017-00210560
1 Indeed, the Califomia Court of Appeal in Carrington, supra, concluded that a PAGA action
2 pertaining to meal break violations for over a hundred thousand aggrieved employees was not over-
3 individualized to render it unmanageable. {Carrington, supra, 30 Cal.App. at 526.) Specifically,
4 Starbucks's expert "analyzed over 5.7 million shift records from 27,146 employees in 490 stores,
5 purportedly representing 25 percent of California stores." Id. at 515-516. Starbucks further argued:
6 Carrington's experience was individualized, emphasizing that she worked with several
other untrained, new employees in a newly opened store that was mn "haphazardly" by
7 the then-manager. As such, Starbucks contends, her experience cannot support the finding
of a violation on a representative basis....Carrington's primary evidence, provided through
8 Starbucks's written policies and the testimony of a witness Starbucks designated as the one
most knowledgeable on the subject, established that generally applicable corporate
9 policies and procedures resulted in numerous employees with initial or total shifts slightly
in excess offivehours not being provided with timely meal breaks and not being paid
10 meal period premiums, in violation of the law.
Id
11
Starbucks' expert also stated, " there was no information in the data to identify whether an
12
employee had the opportunity to take a meal and chose not to do so: 'it's not as though there is aflagon
13
the data that says, you know, ' I took the—I had the opportunity, but I waived a meal.'" Id. Nevertheless,
14
the court concluded "the evidence was not over individualized to precede a representative finding." Id. at
15
526. Here, even assuming Plaintiffs PAGA action requires an individual analysis of each ofthe 5,600
16
aggrieved employees identified by Defendant (which as discussed below is inaccurate), that number
17
represents less that 4% of the amount of aggrieved employees in the Carrington matter, which the court
18
found was not overly burdensome or overly individualized to maintain a representative action. Id. at 515.
19
Defendant's erroneous assumption that 5,600 aggrieved employees^ are implicated by the meal
20
period violation aspect of PlaintifPs PAGA claim is without basis. Plaintiffis preparing for frial based on
21
those aggrieved employees who worked from the start of the PAGA period (April 5, 2016) to December
22
23 31,2016, when Defendant revamped their payroll system to automatically flag and pay for meal period
24 violations. There are only 2,559 employees in this group, andfromthis subset, only the 2,551 employees
25
26
27 ^ Defendant's Motion as to Why Spears' Case Should Not Proceed as a PAGA Representative Action
stated - erroneously - that there are 3,700 aggrieved employees at issue. (Def.'s PAGA Mot., p.5,1.14-
28 15.) It is unclear how that number how grown now to 5,600, the number stated in Defendant's current
iteration of the motion. Defendant's Motion to Strike Spears' Representative PAGA Claims. (Def's
Mot., p. 18,1.1-3.)
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
9 CASE No. 34-2017-00210560
1 who worked at least six hours in a shift will be considered. (Lietzow Expert Declaration at ^ ^ 9-10.)^
2 Plaintiffs trial plan, submitted in accordance with the Court's Order of Aug. 30, 2019,
3 demonstrates the PAGA claims will be manageable for each of the underlying Labor Code violations,
4 including the meal period and miscalculation claims. (PL's Trial Plan, Jan. 24, 2020.) Plaintiffs plan
5 provides for liability determinations that can be made based on Defendant's policies, witness testimony,
6 and expert analysis. (Trial Plan, p.6:12-15 & p.9:25-27.)
7 For example, based on the time and payroll data produced for all aggrieved employees. Plaintiffs
8 expert analyzed that there were 46,195 days with meal period violations, comprised of 43,051 late
9 meal periods, 1,519 missed meal periods, and 1,625 short meal periods. (Lietzow Expert Declaration
10 at Exhibit B, ^ 11.) Those 46,195 violation spanned over 12,138 pay periods, but only 508 (4.2%) of
11 them included a "DTO" payment. (Lietzow Expert Declaration at ^ 16.) Accordingly, a high volume of
12 missed, late, or shortened meal periods went unpaid. Thus, any claim that analyzing the data in this
13 matter is "unmanageable" is simply untrue - PlaintifPs expert has already done so.
14 Plaintiffs' trial plan explains that the meal period claim can be tried manageably: "Plaintiffs
15 expert formulated a penalties models for affected employees during the PAGA period demonstrating a
16 high volume of missed, late, or shortened meal periods which went unpaid. As such, for the meal period
17 claim. Plaintiffs will not need to rely on representative statistics or survey evidence." (Trial Plan, ROA
18 481, p. 10:9-12.)
19 Importantly, whether Plaintiffs will need to present evidence regarding why employees took their
20 late or missed meal periods does not defeat the PAGA claim. In Carrington, the parties presented
21 competing experts where "[b]oth parties' experts testified they were unable to discemfromthe data why
22 a break was taken late or not at all." Carrington, supra, 30 CaLApp. atfii.10-12. However, the experts'
23 inability to identify the reason(s) for the late/missed breaks did not prevent the court from
24 determining the plaintiffs representative action was not overly individualized. Id. at 526.
25 Accordingly, Defendant's claim that this matter cannot proceed on a representative basis because
26 Plaintiff "will have to submit evidence as to the reasons why employees took late or missed meal
27 periods" (Motion to Strike, ROA 488, at 19:20-21) is simply untme.
28
A tme and correct copy of Mr. Lietzow's full Expert Declaration is filed concurrently herewith.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
10 CASE No. 34-2017-00210560
1 Similarly, as to the miscalculation claims, through the use of the time and payroll data for all
2 aggrieved employees, "Plaintiff[s] already ha[ve] all the discovery necessary to calculate damages and
3 penahies owed to the entire class, both as an aggregate and on an individual basis." (Trial Plan, ROA
4 481, p.6:22-23.) Indeed, the analysis has been performed and can be demonstrated on an individual basis
5 without any further individual inquiry. {See Lietzow Decl., 5-10.)
6 As these claims can be tried manageably pursuant to Plaintiffs' trial plan. Defendant's motion
7 must be denied.
8 C. Plaintiffs' Meal Period PAGA Claim Is Consistent With Prior Positions
9 Plaintiffs have allegedfromthis case's inception that Defendant has failed to provide all legally
10 required meal periods or the corresponding premium payment. (Complaint, Exhibit 1. p.5:15-24.)
11 Through discovery, including the deposition of Defendant's PMK, Plaintiffs discovered the link between
12 Defendant's compensation policies and Defendant's failure to pay meal period premiums when meal
13 periods were late, intermpted, or missed.
14 Specifically, Defendant's PMK stated that meal period premiums would be paid to employees
15 who were not provided with Califomia compliant meal periods. (Exhibit 4. PMK Depo. at 88:21-89:18.)
16 According to Defendant, prior to January 1, 2017 (when Defendant switched to an automated system),
17 the uniform policy for providing meal period premiums was for all meal period premiums to be
18 paid using the payroll code "DTO" (discretional time off). (Exhibit 4. Rodes PMK Depo. at 69:25-
19 70:25.) Defendant claimed each employees was to add one-hour "DTO" to their timesheets when they
20 were not provided a lunch period, and that all information was the same for all employees until
21 December 21, 2016 (Exhibit 4. Rodes PMK Depo. at 91:4-21, 93:25-95:1.) However, the policies
22 provided to all non-exempt employees uniformly failed to advise them to use the pay code "DTO" for
23 meal period premiums. (Exhibit 4. Rodes PMK Depo. at 116:17-118:9.) Moreover, each supervisor was
24 responsible for approving all of the nonexempt employees' time, and ensuring that each late meal
25 period was compensated with an hour meal premium, yet Defendant's policies uniformly failed to
26 inform Defendant's supervisors to utilize the "DTO" pay code to compensate employees for
27 missed/late meal period. (Exhibit 4. Rodes PMK Depo. at 93:6-11,119:19-121:25 122:1-123:17,
28 126:13-127:10) This resulted in numerous unpaid meal period premiums. Thus, Defendant's failure in
regard to the "DTO" pay code and its failure to practice legally compliant policies in regard to its
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
11 CASE No. 34-2017-00210560
1 employee's meal periods are not only consistent with each other, the instances are linked.
2 Defendant, notably, provided no evidence from time recordings or declarations showing that
3 employees received their meal periods or waived them of their own volition. This is because, instead.
4 Defendant was well aware there was no system in place to properly pay meal period premiums and, as
5 such. Defendant is liable for its failings.
6 Lastly, Defendant's assertion that Plaintiffs' meal period claim brought pursuant to PAGA is
7 sfricken because the meal period claim was not certified demonstrates Defendant's failure to understand
8 Arias, supra. A PAGA action is not a class action and is not bound by certification requirements. Id, 46
9 Cal. 4th at 984. As such, the failure of a claim to meet certification requirements is not a basis to estop
10 the claim brought pursuant to PAGA. Id.
11 D. Defendant Filed An Unauthorized Motion Seeking Relief That Has Previously Been
Denied Three Times
12
This is Defendant's fourth attempt to rid itself of Plaintiffs' PAGA claims through an attack on
13
the pleadings. The Court already rejected both of Defendant's attempts at summary judgment,
14
which included attempts to summarily adjudicate Plaintiffs PAGA action, and Defendant's
15
procedurally improper third attempt through a misnamed motion to strike Plaintiffs' PAGA claims.
16
Defendant has finally chosen the vehicle of a motion to strike that is named as such but,
17
importantly. Defendant blew the motion to strike filing deadline, which required Defendant to file such a
18
pleading challenge as Defendant's first responsive pleading. C.C.P. § 435(b).
19
Separately, Defendant was explicitly instmcted not to file its motion until after the Court
20
considered Plaintiffs' Trial Plan. Specifically, the Court stated:
21
I know you mentioned vour motions to deny certification and renew the PAGA motions,
22 um, I don't think they should befiledon this date. There is a lot to digest and depending
on the discussions there may need to be decisions on some of these sub elements before
23 any motion like that is appropriate.
24 (Transcript, Exhibit 5. p.31:23-32:1 (emphasis added).) The Court continued:
25 I don't want to get substantive mlings mixed up with managing the trial and in a sense
have somebody say, well, they shouldn't put on this claim or they shouldn't put on this
26 defense because it's not allowed by law, or something like that. It may be once we shake
out what are the disputed trial issues and things that maybe you can't decide that
27 particular trial management issue until there has been a substantive mling. And it may be
then that that's an appropriate time to have a motion for class ~ or decertification, or
28 whatever, or the PAGA motions. Or maybe there is, you know, a motion within the
domain of law and motion departments or something that gets that thing done and then
you have the trial management sub-issue, so to speak, decided after that or along with that.
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
12 CASE No. 34-2017-00210560
1
I think it's... more efficient... and... certainly more helpful to anyone else, if someone else
2 is deciding this, to not put all of that on at once....
3 (Transcript, Exhibit 5. p.36:20-37:10 (emphasis added).) Defendant, here, has contravened the Court's
4 clear instmction by filing this Motion to Strike prior to a mling on Plaintiffs Trial Plan.
5 The Court should deny this fourth attempt, as it has the previous three, and just as the Califomia
6 Court of Appeal did in Carrington, supra, 30 Cal. App. 5th. There, the defendant (Starbucks) filed a pre-
7 trial "mofion regarding trial of representafive claim," claiming, exactly as Defendants are claiming
8 here, that "a representative PAGA action was not appropriate because no uniform policy or practice
9 could explain why employees took a late break; as such, individualized inquiries into each late meal
10 break were required." Id. at 508-509. The court summarily denied Starbucks' motion "finding it was one
11 'for summary judgment or adjudication in disguise,' and Starbucks had failed to comply with the
12 procedural requirements for summary judgment motions. (See, e.g.. Code Civ. Proc, § 437c.)" Id. at
13 509. This Court should follow suit and deny Defendant's clear attempt to deprive PlaintifF of her due
14 process rights and the procedural safeguards afforded to PlaintifF by the Code of Civil Procedure.
15 This case, instead, should proceed to trial.
16
17 IV. CONCLUSION
For all the reasons as set forth herein Defendant's Motion must be denied.
18
19 Respectfully submitted,
20 DATED: April 17, 2020 BLUMENTHAL NORDREHAUG BHOWMIK
DE BLOUW LLP
21
22 By:.
TBho\
Victoria B. Rivapalacio
23 Attomeys for PlaintifF
24
25
26
27
28
PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS
13 CASE No. 34-2017-00210560
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) FILED/ENDORSED 3 Victoria B. Rivapalacio (State Bar #275115) 4 2255 Calle Clara MAY - 6 2020 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 By:. R. San Mlqiifil Deputy Clertc 6 Attorneys for Plaintiff 7 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 IN AND FOR THE COUNTY OF SACRAMENTO 11 12 ANDREA SPEARS, an individual, on behalf Consolidated CaseNo. 34-2017-00210560-CU-OE- 13 of herself and on behalf of all persons GDS (Consolidated with Case No. 34-2017- similarly situated. 00216685-CU-OE-GDS) 14 15 Plaintiff, 16 vs. PLAINTIFF ANDREA SPEARS'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE 17 HEALTH NET OF CALIFORNLA, INC., a SPEARS' REPRESENTATIVE PAGA CLAIMS Califomia Corporation; and Does 1 through 18 50, Inclusive, Hearing Date: May 8, 2020 19 Defendants. Hearing Time: 11 ;00 a.m Dept.: 41 20 Judge: Hon. David De Alba TOMAS R. ARANA, on behalf of himself, 21 all others similarly situated. Original Complaint Filed: April 5,2017 22 Plaintiff, FAC Filed: June 29, 2017 Consolidated Complaint Filed: Dec. 21, 2017 23 vs. 24 HEALTH NET OF CALIFORNIA, INC., a Califomia corporation; and DOES 1 through 25 50, inclusive. 26 Defendants. 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS CASE No. 34-2017-00210560 1 TABLE OF CONTENTS 2 3 I. INTRODUCTION 4 IL ARGUMENT 2 5 A. Plaintiffs LWDA Notice Sufficiently Describes The Facts And Theories Supporting 6 Defendant's Violations 2 7 1. Plaintiffs Exhausted the Meal Period PAGA Claim 4 8 2. Plaintiffs Exhausted the Miscalculation PAGA Claim 4 9 3. Plaintiffs Exhausted the Off the Clock PAGA Claim 5 10 B. Defendant's Manageability Argument Lacks Merit And Is Based On A False I*remise .6 11 1. Manageability Is Not A Requirement For PAGA Actions 6 12 2. Individualized Analyses Do Not Make Plaintiffs PAGA Action Unmanageable 6 13 3. Defendant's Relies on Case Law With Contrary Holdings to 14 Defendant's Position 7 15 4. Plaintiffs PAGA Action Is Manageable 8 16 C. Plaintiffs' Meal Period PAGA Claim Is Consistent With Prior Positions 11 17 D. Defendant Filed An Unauthorized Motion Seeking Relief That Has Previously Been 18 Denied Three Times 12 19 II. CONCLUSION 13 20 21 22 23 24 25 26 27 28 ~ PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS CASE No. 34-2017-00210560 TABLE OF AUTHORITIES 2 Pages: 3 Cases: 4 Alcantar v. Hobart Service, 800 F.3d 1047 (9th Cir. 2015) 2,5 5' Arias v. Superior Court 6 46 Cal. 4th 969 (2009) 1,2,6-7,11 7 Brooks v. Amerihome Mortg. Co., LLC, 2020 Cal. App. LEXIS 287 (Ct. App. Mar. 16, 2020) 3 8 Brown v. Am. Airlines, Inc., 9 2015 U.S. Dist. LEXIS 150670 (CD. Cal. Oct. 5, 2015) 6 10 Brown v. Ralphs Grocery Co. 28Cal. App. 5th 824 (2018) 5 11 Cardenas v. McLane Foodservices, Inc., 12 796 F. Supp. 2d 1246 (CD. Cal. 2011) 2-3 13 Carrington v. Starbucks Corporation 30 Cal. App. 5th 504 (2018) 2,8,9-10,12 14 Green v. Bank of Am., N.A., 15 634 Fed. Appx. 188 (9th Cir. 2015) 1-2 16 Heredia v. Eddie Bauer LLC, 2020 U.S. Dist. LEXIS 53929 (N.D. Cal. Mar. 27, 2020) 7 17 Hibbs-Rines v. Seagate Techs., 18 2009 U.S. Dist. LEXIS 19283 (2009) 8 19 Huff V. Securitas Sec. Servs. USA, Inc 23Cal.App.5th745(2018) 5 20 Iskanian v. CIS Transportation Los Angeles, LLC 21 59 CaUth 349 (2014) 7 22 Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3082 (LASC April 6, 2018) 6 23 Mendoza v. Nordstrom, Inc. 24 2 Cal. 5th 1074(2017) 6 25 Ochoa-Hernandez v Cjaders Foods, Inc., 2010 U.S. Dist. LEXIS 32774 (2010) 7 26 Plaisted v. Dress Barn, Inc., 11 2012 U.S. Dist. LEXIS 135599 (CD. Cal. Sept. 20, 2012) 6 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS CASE No. 34-2017-00210560 1 Robles V. Schneider Nat'l Carriers, Inc., 2017 U.S. Dist. LEXIS 132065 (CD. Cal. Aug. 15, 2017) 3 2 Tseng V. Nordstrom, Inc., 3 2016 U.S. Dist LEXIS 176990 (CD. Cal. Dec. 19, 2016) 8 4 Williams v. Superior Court 3Cal.5th53] (2017) 8 5 Zackaria v. Wal-Mart Stores, Inc.. 6 2015 WL 6745714 (CD. Cal. Nov. 3, 2015) 6-7 7 Zayers v. Kiewit Infrastructure W. Co., 2017 U.S. Dist. LEXIS 216715 (CD. Cal. Nov. 9, 2017) 3,7-8 8 9 Statutes; 10 Cal. Labor Code § 226 4 11 Cal. Labor Code § 2699.3 1-4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ~ PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS CASE No. 34-2017-00210560 L INTRODUCTION 2 Defendant's fourth attempt at the same motion, to summarily dismiss Plaintiffs' PAGA claims, should 3 be denied, just as the three before it. This current iteration of this request is brought explicitly against the 4 Court's orders and should not proceed. (Transcript, Exhibit 5. p.31:23-32:1 (discussing the Case Management 5 Conference set for discussing PlaintifPs Trial Plan: " I don't think [Defendant's PAGA motions] should be 6 filed on this date. There is a lot to digest and depending on the discussions there may need to be decisions 7 on some of these sub elements before any motion like that is appropriate.")(emphasis added).)' 8 Defendant's Motion to Strike PlaintifPs Representative PAGA Claims ("Motion to Strike") should 9 be denied on substantive grounds, as well. The PAGA Notice Plaintiff provided to Labor Workforce 10 Development Agency ("LWDA") more than satisfies the requirements set forth in Califomia Labor Code 11 § 2699.3. The case law interpreting PAGA Notice requirements makes clear that "written notice is 12 sufficient so long as it contains some basic facts about the violations, such as which provision was 13 allegedly violated and who was allegedly harmed." Green v. BankofAm., N.A., 634 Fed. Appx. 188,191 14 (9th Cir. 2015). Here, Plaintiff met the specificity requirements by including in the PAGA Notice the "basic 15 facts about the violations" and by attaching thereto a true and correct copy of Plaintiff s entire complaint 16 with fiirther details of the allegations against Defendant. As a result, PlaintifF may lawfully pursue civil 17 penalties for Defendant's violation of the meal period requirements of the Califomia Labor Code, 18 Defendant's failure to compensate Plamtiffs for all time worked, as well as Defendant's failure to pay 19 overtime wages by miscalculating the regular rate of Defendant's employees. These allegations are specified 20 in great detail throughout the originally filed Complaint that was attached to Plaintiffs PAGA Notice. 21 (Exhibit 1: Plaintiff Complaint, at t H 9-11,14-17,21-23, 32, 36, 37, 46, 56-71.) 22 Defendant's Motion must also fail because it is premised on a "manageability" requirement that does 23 not exist for PAGA actions. See, Arias v. Superior Court, 46 Cal. 4th 969,975 (2009). Defendant failed to 24 comply with the mandate of the Califomia Supreme Court in that the class certification requirements do not 25 apply to PAGA claims. Id. at 975. Defendant's failure to understand this holding of Arias is shown by 26 Defendant'sfilingof this Motion and asserting that Plaintiffs' meal period claim should be dismissed based 27 28 ' All Exhibits are attached to the Declaration of Victoria B. Rivapalacio ("Rivapalacio Decl."), filed concurrently herewith. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 1 CASE No. 34-2017-00210560 1 on judicial estoppel because the Court declined to certify a class for the same claim. 2 Defendant's argument that Plaintiffs' PAGA claim requires the resolution of individualized disputes 3 also fails. If Defendant's bloated number of aggrieved employees were correct, the Court would still be 4 evaluating an analysis only one fourth the number of all aggrieved employees in Carrington v. Starbucks 5 Corp., which involved an analysis of27,146 employees, and was successfully tried. Id., 30 Cal.App.5th 504, 6 515-516 (2018). Most importantly, however, is that Plaintiffs submitted a trial plan that demonstrates the 7 consideration and evaluation of these claims will be manageable. Indeed, using the time and payroll records 8 ofthe aggrieved employees and the deposition testimony of Defendant's PMK, Plaintiffs' expert has already 9 analyzed the data, can demonstrate liability, and can determine penahies owed. 10 For all these reasons as set forth more fully below. Plaintiffs respectfully request the Court deny 11 Defendant's Motion in its entirety. 12 II. ARGUMENT 13 A. Plaintiff's LWDA Notice Sufficiently Describes The Facts And Theories Supporting Defendant's Violations 14 The PAGA Notice Plaintiff sent to the LWDA more than satisfies the requirements of Cal. Labor 15 Code § 2699.3. According to controlling precedent, "that statute requires the employee to give written notice 16 of the alleged Labor Code violation to both the employer and the Labor and Workforce Development 17 Agency, and the notice must describe facts and theories supporting the violation." {Arias, supra, 46 Cal.4th 18 at 981.) "[T]he plain meaning" of the phrase "'facts and theories to support [the] alleged violation'" 19 "suggests that [the p]laintiffs were required to put forward sufficient facts to support their claims of labor 20 violations...." Cardenas v. McLane Foodservices, Inc., 796 F. Supp. 2d 1246, 1260 (CD. Cal. 2011). In 21 other words, "a written notice is sufficient so long as it contains some basic facts about the violations, 22 such as which provision was allegedly violated and who was allegedly harmed." Green, supra, 634 Fed. 23 24 Appx.188 [citing Alcantar v. Hobart Service 800 F.3d 1047 (9th Cir. 2015).]. 25 In Green, supra, the plaintiffs' PAGA notice was sufficient when it "contained: (1) the specific statute 26 Bank of America allegedly violated, (2) facts about what position plaintiffs held, (3) a statement that 27 plaintiffs could use a seat in their position, and (4) a specific identification of who was allegedly harmed." 28 Id. "These facts put the LAVDA and Bank of America on notice about the nature of the plaintiffs' clauns. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 2 CASE No. 34-2017-00210560 namely, that Bank of America was not providing chairs for plaintiffs as Califomia law requires." Id. 2 "Courts recognize that there are inherent limitations in PAGA letters because, of course, no discovery 3 has yet occurred and the level of detail required should be constmed liberally in favor of employees." Zayers 4 V. Kiewit Infrastructure W. Co., 2017 U.S. Dist. LEXIS 216715, at *19 (CD. Cal. Nov. 9, 2017)(intemal 5 citations omitted)(holding that plaintiffs PAGA letter sufficiently detailed plaintiffs meal period claim, 6 overtime claim, and reimbursement claim). To that end, "plaintiffs are not required to include every 7 potential fact or every future theory." Robles v. Schneider Nat'l Carriers, Inc., 2017 U.S. Dist. LEXIS 8 132065 at *27 (CD. Cal. Aug. 15,10\T){citing Cardenas, supra, 796 F. Supp. 2d at 1259-60). 9 In Robles, supra, the plaintiffs letter to the LWDA included allegations that plaintiff had been 10 allegedly misclassified and, thereby, deprived of certain protections provided by the Labor Code. Id. at *28. 11 Importantly, "[p]laintiff attached a copy of his complaint to that letter" that "included all of [p]laintiff s 12 legal thoeries for recovery based on those facts." Id. The standards for specificity of pleadings is significantly 13 higher than that for notice pursuant to PAGA: 14 Notwithstanding that the complaint did not satisfy the relatively rigorous standards of Iqbal/Twombly, the Courtfindsthat it was sufficient to meet Plaintiffs obligations under 15 Section 2699.3. Accordingly, Plaintiff may proceed on his PAGA claims. 16 \Id 17 Additionally, in McLane Foodservices, the plaintiff sfirstamended complaint attached a copy of their 18 PAGA Notice, which stated, "Plaintiffs' counsel is representing 'a group of tmcker drivers who worked for 19 McLane Food Service Inc.' and the letter is 'notice, and a request, pursuant to Califomia Labor Code 20 § 2699.3 that [the LWDA] investigate the claims in this impending civil action.'" McLane Foodservices, 21 supra, 796 F.Supp.2d. at 1259. "In the letter, counsel described the action as being 'brought on behalf of 22 thirty-seven tmck drivers,' whom it then names. [] The letter also notes that [the defendant] employed 23 plaintiffs "as tmck drivers out of its Southem Califomia distribution center." Id. at 1259. Based on the 24 foregoing, the court found the plaintiffs' PAGA notice to be sufficient. Id. At 1260-1261 .When the complaint 25 contains the allegations and the complaint is attached to the PAGA letter, a defendant is on notice as to the 26 allegations in the complaint because "it is the complaint, and not the notice, that sets forth the issues in 27 controversy." Brooks v. Amerihome Mortg. Co., LLC, 2020 Cal. App. LEXIS 287, at *1 (Ct. App. Mar. 16, 28 2020). Here, Plaintiff s PAGA Notice contains facts and theories to put the LWDA and Defendant on notice PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 3 CASE No. 34-2017-00210560 about the nature of Plaintiff s claims. Specifically, Plaintiffs April 5, 2017 letter to the LWDA stated: 2 Plaintiff was employed by Defendant in Califomia from December of 2013 to October of 2016 as a nonexempt employee entitled to the legally required meal and rest breaks and 3 payment for all time worked under Defendant's control, including overtime worked. Defendant, however, unlawfully failed to record and pay Plaintiff and other aggrieved 4 employees for all of their time worked, including overtime wages, and for all of their missed meal and rest breaks. As a consequence of the aforementioned violations. Plaintiff 5 further contends that Defendant failed to provide accurate wage statements to her, and other aggrieved employees, in violation of Califomia Labor Code section 226(a). Additionally, 6 Plaintiff contends that Defendant failed to comply with Industrial Wage Order 7(A)(3) in that Defendant failed to keep time records showing when Plaintiff began and ended each shift and 7 meal period. Said conduct, in addition to the foregoing, violates Labor Code §§ 201,202,203, 204, 226(a), 226.7, 510, 512, 558, 1194, 1197, 1197.1, 1198, Violation ofthe applicable 8 Industrial Welfare Commission Wage Order(s), and is therefore actionable under Califomia Labor Code section 2699.3. 9 (Exhibit 2. PAGA Notice at p. 1 (emphasis added).) 10 In addition. Plaintiffs PAGA Notice attached a tme and correct copy of Plaintiffs complete 11 Complaint, which detailed the fact and theories which supported Plaintiffs allegations against Defendant 12 and the details of the specific work performed by PlaintifF, as well as the illegal practices used by Defendant. 13 1. Plaintiffs Exhausted the Meal Period PAGA Claim 14 Despite the foregoing. Defendant brazenly claims Plaintiff s PAGA Notice was insufficient. PlaintifF 15 Spears clearly included notice in her PAGA letter as to "their missed meal and rest breaks" (Exhibit 2. PAGA 16 Notice at p. 1) and attached the complaint, which further specified that "Plaintiff., forfeited meal breaks 17 without additional compensation... in accordance with Defendant's strict corporate policy and practice" 18 (Exhibit 1. Complaint at p.5:22-24). That Plaintiffs theory of liability, post-discovery, has evolved to be 19 more specific is well within thefi-ameworkof the notice requirements of PAGA. McLane Foodservices, Inc., 20 supra, 796 F. Supp. 2d at 1260 (stating there is "no authority suggesting that PAGA's requirement that 21 employees provide in their notice 'facts and theories to support [an] alleged violation' necessitates inclusion 22 of every potential fact or every future theory."). 23 2. Plaintiffs Exhausted the Miscalculation PAGA Claim 24 Similarly, Plaintiffs' claims as to the miscalculation of the regular rate of pay were clearly within the 25 written notice to the LWDA, further specified in the Complaint that was attached. After discovery 26 commenced. Plaintiffs' allegations evolved such that Plaintiffs are now able to name the different types 27 compensation that were not included in the calculation of the regular rate and that were included in the term 28 non-discretionary incentive" payments referenced in the Complaint that was attached and incorporated into PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 4 CASE No. 34-2017-00210560 Plaintiff Spears's letter to the LWDA. (Exhibit 1. Complaint at p.4:16-5:4.) 2 Importantly, Plaintiffs, in their role on behalf ofthe State ofCalifomia in an enforcement action, need 3 not have suffered the exact violations for which they may pursue PAGA penalties. Huff v. Securitas Sec. 4 Servs. USA, Inc., 23 Cal.App.5th 745, 757 (2018). 5 For PAGA standing a plaintiff need only have been employed by the violator and affected by "one or more" of the alleged violations. (§ 2699, subds. (a), (c).) That requirement strikes a 6 reasonable balance, requiring a plaintiff to have some connection to the employer's unlawful practices, while also advancing the state's interest in vigorous enforcement. 7 Id. This is further reason why a PAGA letter need not specifically name, for example, each type of 8 compensation that an employer failed to include in the regular rate. 9 As such, Plaintiffs' PAGA letter, here, provided sufficient notice and Plaintiffs must be permitted to 10 pursue the miscalculation claim pursuant to PAGA. 11 3. Plaintiffs Exhausted the Off the Clock PAGA Claim 12 In regard to the off-the-clock claim. Plaintiffs referenced such work in PlaintiffSpears' PAGA letter 13 "Defendant... unlawfully failed to record and pay PlaintifF and other aggrieved employees for all of their 14 time worked" (Exhibit 2. PAGA Letter, p. 1) - and in Plaintiff Arana's PAGA letter, which states that "[a]s 15 a result of improperly misclassified as exempt, Arana and the aggrieved employees were not paid for all 16 hours worked" (Exhibit 4. Arana's PAGA Letter, p. 9). Indeed, Defendant concedes that Arana "made some 17 mention of employees working off the clock in his LWDA Notice" (Mot. to Strike Arana's PAGA Claims, 18 ROA 484, at 12:26-28), it takes issue that "EMPCenter PAGA Claim is not... mentioned in the LWDA 19 Notice" (Mot. to Strike, ROA 488, at 16:10-11) (emphasis added). Based on this failure to specifically name 20 the timekeeping system, Defendant argues that the claim was not exhausted and must be stricken, a 21 contention at odds with Califomia public policy that favors vindication of consumer protections. 22 Williams v. Superior Court, 3 Cal.5th 531, 548 (2017). PAGA exhaustion requirements do not necessitate 23 "inclusion of every potential fact or every future theory." Cardenas, 796 F. Supp. 2d at 1260. 24 Finally, Plaintiffs PAGA Notice is a far cry from instances where the court found PAGA Notices 25 insufficient. See Alcantar, supra, 800 F.3d 1047 ("the notice did not allow the LWDA 'to intelligently 26 assess the seriousness of the alleged violations' or give the employer enough information to determine 27 what policies or practices are being complained of so as to know whether to fold orfight..");Brown v. 28 Ralphs Grocery Co. 28 Cal. App. 5th 824, 837-838 (2018)("a string of legal conclusions that parroted the PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 5 CASE No. 34-2017-00210560 allegedly violated Labor Code provisions.... did not give sufficient information for the LWDA to assess 2 the seriousness of the alleged violations...."). Unlike in Alcantar and Brown, Plaintiffs PAGA Notice 3 gave sufficient information for the LWDA to assess the seriousness of the alleged violations, and allowed 4 Defendant to determine what policies or practices were at issue to have an opportunity to cure. B. Defendant's Manageability Argument Lacks Merit And Is Based On A False 5 Premise 6 1. Manageability Is Not A Requirement For PAGA Actions Defendant's Motion requests the Court to write out of the law the Califomia Supreme Court's 7 holding in Arias, supra, which specifically stated, "those [class action] requirements need not be met 8 when an employee's representative action against an employer is seeking civil penalties under the 9 Labor Code Private Attorneys General Act of 2004." Id. at 975. Indeed, Defendant conceded in its 10 prior Motion As To Why Spears's Case Should Not Proceed As A PAGA Representative Action ("Def.'s 11 PAGA Motion"), filed December 21, 2018, that "Arias makes clear that PAGA claims need not satisfy 12 class action requirements." (Def's PAGA Motion at p. 11, fh 3.) 13 "PAGA authorizes a representative action without the need for class certification." Mendoza v. 14 Nordstrom, Inc., 2 Cal. 5th 1074, 1079 (2017). "The court is persuaded that manageability is not a 15 basis to strike a PAGA action." Mejia v. 99 Cents Only Stores, 2018 Cal. Super. LEXIS 3082 (LASC 16 April 6, 2018)(citing Zackaria v. Wal-Mart Stores, Inc. 2015 WL 6745714 (CD. Cal., Nov. 3, 2015), at 17 18 *6 ["the courtfindsdefendant's manageability argument inconsistent with PAGA's purpose and 19 statutory scheme."]). "Holding that individualized liability determinations make representative PAGA 20 actions unmanageable, and therefore untenable, would impose a barrier on such actions that the state law 21 enforcement agency does not face when it litigates those cases itself." Id. 22 Because Arias and its progeny hold that a representative PAGA plaintiff need not satisfy any of 23 the class action requirements. Defendant cannot plausibly argue that one particular class action 24 requirement - that of manageability - must be proved in order to maintain a PAGA action. 25 2. Individualized Analyses Do Not Make PlaintifTs PAGA Action Unmanageable 26 Notwithstanding the fact that "manageability" is not a requirement for PAGA actions. 27 Defendant's entire "manageability" argument is predicated on the false claim that the individual analyses 28 of the aggrieved employees would render Plaintiffs PAGA action "unmanageable." Defendant's argument is contrary to controlling case law. "To hold that a PAGA action could not be maintained PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 6 CASE No. 34-2017-00210560 1 because the individual assessments regarding whether a violation had occurred would make the 2 claim unmanageable at trial would obliterate [the purpose of PAGA], as every PAGA action in 3 some way requires some individualized assessment regarding whether a Labor Code violation has 4 occurred. Plaistedv. Dress Barn, Inc., 2012 U.S. Dist. LEXIS 135599, *]0 (CD. Cal. Sept. 20, 2012); 5 see also. Brown v. Am. Airlines, Inc., 2015 U.S. Dist. LEXIS 150670, *3 (CD. Cal. Oct. 5, 2015) 6 ("every PAGA action in some ways requires some individualized assessment regarding whether a 7 Labor Code violation has occurred.").). "The purpose of PAGA 'is to incentivize private parties to 8 recover civil penalties for the govemment that otherwise may not have been assessed and collected by 9 overburdened state enforcement agencies.'" Zayers, 2017 U.S. Dist. LEXIS 216715 at "^SO (quoting 10 Ochoa-Hernandez v Cjaders Foods, Inc., 2010 U.S. Dist. LEXIS 32774 (N.D. Cal. 2010).) "Holding 11 that individualized liability determinations make representative PAGA actions unmanageable, and 12 therefore untenable, would impose a barrier on such actions that the state law enforcement agency 13 does not face when it litigates those cases itself." /(/.(citing Iskanian, supra, 59 Cal.4th at 380; Arias, 14 supra, 46 Cal. 4th at 973). "Imposing such a requirement, found nowhere in PAGA itself and not 15 imposed upon the government, would 'obliterate [the] purpose' of representative PAGA actions." 16 Id. at "^31 (quoting Zackaria, supra, 142 F.Supp.3d at 959.) Accordingly, the Zayers Court "decline[d] to 17 departfromthe holdings of other courts in Califomia and in this District, which do not impose a 18 manageability requirement on a representative PAGA claim." Id. 19 The Northem District held to this legal precedent in a recent holding in Heredia v. Eddie Bauer 20 LLC, 2020 U.S. Dist. LEXIS 53929 (N.D. Cal. Mar. 27, 2020). There, the defendantfileda motion to 21 strike the plamtiffs PAGA claims stricken based on manageability and relying heavily on the court's 22 previous decertification order as to the claims at issue. Id, at *9-10. The court held, however, that the 23 claims, while unmanageable for the purposes of certification, were suitable for a PAGA cause of action 24 because "that PlaintifF must prove a violation as to each aggrieved employee in order to recover civil 25 penalties for that employee does not support the conclusion that permitting Plaintiff to attempt to prove 26 her case would resuh in an unmanageable trial...." Id., at *\l-\7>. The Northem District Court, further, 27 referenced the plaintiffs trial plan to demonstrate that, in fact, the plaintiff proposed a manageable trial. 28 Id.,zX*\2) ("[T]he Court notes that Plaintiff has presented a fairly manageable trial plan because Plaintiff has identified a total of 10 trial witnesses.") PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 7 CASE No. 34-2017-00210560 1 Plaintiffs position, here, is identical to that of the plaintiff in Heredia, supra. That the claims 2 were not certified does not evidence that the claims cannot proceed pursuant to PAGA. Further, Plaintiff 3 has submitted a Trial Plan that requires only six witnesses, a number well within "manageable." 4 3. Defendant's Relies on Case Law With Contrary Holdings to Defendant's Position 5 Nevertheless, Defendant's Motion contends that the PAGA claim of the State of Califomia can be 6 denied on the ground that litigation would be "unmanageable" by relying on, primarily, Williams v. 7 Superior Court, supra, a case that reaffirms Califomia's broad discovery rights, but makes no holding 8 regarding the applicability of manageability to a PAGA claim. Id. at 551. 9 Defendant also cites to Zayers, supra, the holding of which supports Plaintiffs' position: [T]he argument that the PAGA claim should still be dismissed because the individualized 10 determinations required under PAGA would make trying such a claim unmanageable ... [is] inconsistent with PAGA's purpose and statutory scheme. PAGA contemplates civil 11 penalties for "a violation" of the Califomia Labor Code, see Cal. Lab. Code § 2699(a), which will often require individualized assessments of liability. 12 13 Zayers, 2017 U.S. Dist. LEXIS 216715, at *29. 14 Similarly, Defendant cites to Hibbs-Rines v. Seagate Techs., LLC, 2009 U.S. Dist. LEXIS 19283 15 (N.D. Cal. Mar. 2,2009), where the court denies defendant's motion to strike PAGA allegations because 16 individual inquiry is anticipated by the PAGA statute. Id.aX*\\. Thus, imposing a manageability 17 requirement, found nowhere in PAGA itself and not imposed upon the govemment were it pursuing the 18 claims, would obliterate the purpose of representative PAGA actions. Zayers, 2017 U.S. Dist. LEXIS 19 216715, at *29. 4. Plaintiffs PAGA Action Is Manageable 20 A trial plan for a PAGA action need not avoid all individual analysis. See Tseng v. Nordstrom, 21 Inc., 2()16 U.S. Dist. LEXIS 176790, at *18 (CD. Cal. Dec. 19, 2016). In Tseng, the court denied a 22 defendant's motion for judgment on the pleadings as to a PAGA claim because, while there is no 23 manageability requirement under PAGA, the plaintiffs trial plan demonstrated that a trial could, in fact, 24 proceed manageably. Id. That the plaintiff may still be required to demonstrate violations on an 25 individual basis did not bar the casefromproceeding: 26 At trial, plaintiff may prove that defendant violated the Califomia Labor Code with 27 respect to the employees it describes as 'aggrieved employees,' some ofthe employees, or he may not prove any violations at all. But the fact that proving his claim may be difficult 28 or even somewhat burdensome for himself and for defendant does not mean that he cannot bring it at all. \ld PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 8 CASE No. 34-2017-00210560 1 Indeed, the Califomia Court of Appeal in Carrington, supra, concluded that a PAGA action 2 pertaining to meal break violations for over a hundred thousand aggrieved employees was not over- 3 individualized to render it unmanageable. {Carrington, supra, 30 Cal.App. at 526.) Specifically, 4 Starbucks's expert "analyzed over 5.7 million shift records from 27,146 employees in 490 stores, 5 purportedly representing 25 percent of California stores." Id. at 515-516. Starbucks further argued: 6 Carrington's experience was individualized, emphasizing that she worked with several other untrained, new employees in a newly opened store that was mn "haphazardly" by 7 the then-manager. As such, Starbucks contends, her experience cannot support the finding of a violation on a representative basis....Carrington's primary evidence, provided through 8 Starbucks's written policies and the testimony of a witness Starbucks designated as the one most knowledgeable on the subject, established that generally applicable corporate 9 policies and procedures resulted in numerous employees with initial or total shifts slightly in excess offivehours not being provided with timely meal breaks and not being paid 10 meal period premiums, in violation of the law. Id 11 Starbucks' expert also stated, " there was no information in the data to identify whether an 12 employee had the opportunity to take a meal and chose not to do so: 'it's not as though there is aflagon 13 the data that says, you know, ' I took the—I had the opportunity, but I waived a meal.'" Id. Nevertheless, 14 the court concluded "the evidence was not over individualized to precede a representative finding." Id. at 15 526. Here, even assuming Plaintiffs PAGA action requires an individual analysis of each ofthe 5,600 16 aggrieved employees identified by Defendant (which as discussed below is inaccurate), that number 17 represents less that 4% of the amount of aggrieved employees in the Carrington matter, which the court 18 found was not overly burdensome or overly individualized to maintain a representative action. Id. at 515. 19 Defendant's erroneous assumption that 5,600 aggrieved employees^ are implicated by the meal 20 period violation aspect of PlaintifPs PAGA claim is without basis. Plaintiffis preparing for frial based on 21 those aggrieved employees who worked from the start of the PAGA period (April 5, 2016) to December 22 23 31,2016, when Defendant revamped their payroll system to automatically flag and pay for meal period 24 violations. There are only 2,559 employees in this group, andfromthis subset, only the 2,551 employees 25 26 27 ^ Defendant's Motion as to Why Spears' Case Should Not Proceed as a PAGA Representative Action stated - erroneously - that there are 3,700 aggrieved employees at issue. (Def.'s PAGA Mot., p.5,1.14- 28 15.) It is unclear how that number how grown now to 5,600, the number stated in Defendant's current iteration of the motion. Defendant's Motion to Strike Spears' Representative PAGA Claims. (Def's Mot., p. 18,1.1-3.) PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 9 CASE No. 34-2017-00210560 1 who worked at least six hours in a shift will be considered. (Lietzow Expert Declaration at ^ ^ 9-10.)^ 2 Plaintiffs trial plan, submitted in accordance with the Court's Order of Aug. 30, 2019, 3 demonstrates the PAGA claims will be manageable for each of the underlying Labor Code violations, 4 including the meal period and miscalculation claims. (PL's Trial Plan, Jan. 24, 2020.) Plaintiffs plan 5 provides for liability determinations that can be made based on Defendant's policies, witness testimony, 6 and expert analysis. (Trial Plan, p.6:12-15 & p.9:25-27.) 7 For example, based on the time and payroll data produced for all aggrieved employees. Plaintiffs 8 expert analyzed that there were 46,195 days with meal period violations, comprised of 43,051 late 9 meal periods, 1,519 missed meal periods, and 1,625 short meal periods. (Lietzow Expert Declaration 10 at Exhibit B, ^ 11.) Those 46,195 violation spanned over 12,138 pay periods, but only 508 (4.2%) of 11 them included a "DTO" payment. (Lietzow Expert Declaration at ^ 16.) Accordingly, a high volume of 12 missed, late, or shortened meal periods went unpaid. Thus, any claim that analyzing the data in this 13 matter is "unmanageable" is simply untrue - PlaintifPs expert has already done so. 14 Plaintiffs' trial plan explains that the meal period claim can be tried manageably: "Plaintiffs 15 expert formulated a penalties models for affected employees during the PAGA period demonstrating a 16 high volume of missed, late, or shortened meal periods which went unpaid. As such, for the meal period 17 claim. Plaintiffs will not need to rely on representative statistics or survey evidence." (Trial Plan, ROA 18 481, p. 10:9-12.) 19 Importantly, whether Plaintiffs will need to present evidence regarding why employees took their 20 late or missed meal periods does not defeat the PAGA claim. In Carrington, the parties presented 21 competing experts where "[b]oth parties' experts testified they were unable to discemfromthe data why 22 a break was taken late or not at all." Carrington, supra, 30 CaLApp. atfii.10-12. However, the experts' 23 inability to identify the reason(s) for the late/missed breaks did not prevent the court from 24 determining the plaintiffs representative action was not overly individualized. Id. at 526. 25 Accordingly, Defendant's claim that this matter cannot proceed on a representative basis because 26 Plaintiff "will have to submit evidence as to the reasons why employees took late or missed meal 27 periods" (Motion to Strike, ROA 488, at 19:20-21) is simply untme. 28 A tme and correct copy of Mr. Lietzow's full Expert Declaration is filed concurrently herewith. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 10 CASE No. 34-2017-00210560 1 Similarly, as to the miscalculation claims, through the use of the time and payroll data for all 2 aggrieved employees, "Plaintiff[s] already ha[ve] all the discovery necessary to calculate damages and 3 penahies owed to the entire class, both as an aggregate and on an individual basis." (Trial Plan, ROA 4 481, p.6:22-23.) Indeed, the analysis has been performed and can be demonstrated on an individual basis 5 without any further individual inquiry. {See Lietzow Decl., 5-10.) 6 As these claims can be tried manageably pursuant to Plaintiffs' trial plan. Defendant's motion 7 must be denied. 8 C. Plaintiffs' Meal Period PAGA Claim Is Consistent With Prior Positions 9 Plaintiffs have allegedfromthis case's inception that Defendant has failed to provide all legally 10 required meal periods or the corresponding premium payment. (Complaint, Exhibit 1. p.5:15-24.) 11 Through discovery, including the deposition of Defendant's PMK, Plaintiffs discovered the link between 12 Defendant's compensation policies and Defendant's failure to pay meal period premiums when meal 13 periods were late, intermpted, or missed. 14 Specifically, Defendant's PMK stated that meal period premiums would be paid to employees 15 who were not provided with Califomia compliant meal periods. (Exhibit 4. PMK Depo. at 88:21-89:18.) 16 According to Defendant, prior to January 1, 2017 (when Defendant switched to an automated system), 17 the uniform policy for providing meal period premiums was for all meal period premiums to be 18 paid using the payroll code "DTO" (discretional time off). (Exhibit 4. Rodes PMK Depo. at 69:25- 19 70:25.) Defendant claimed each employees was to add one-hour "DTO" to their timesheets when they 20 were not provided a lunch period, and that all information was the same for all employees until 21 December 21, 2016 (Exhibit 4. Rodes PMK Depo. at 91:4-21, 93:25-95:1.) However, the policies 22 provided to all non-exempt employees uniformly failed to advise them to use the pay code "DTO" for 23 meal period premiums. (Exhibit 4. Rodes PMK Depo. at 116:17-118:9.) Moreover, each supervisor was 24 responsible for approving all of the nonexempt employees' time, and ensuring that each late meal 25 period was compensated with an hour meal premium, yet Defendant's policies uniformly failed to 26 inform Defendant's supervisors to utilize the "DTO" pay code to compensate employees for 27 missed/late meal period. (Exhibit 4. Rodes PMK Depo. at 93:6-11,119:19-121:25 122:1-123:17, 28 126:13-127:10) This resulted in numerous unpaid meal period premiums. Thus, Defendant's failure in regard to the "DTO" pay code and its failure to practice legally compliant policies in regard to its PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 11 CASE No. 34-2017-00210560 1 employee's meal periods are not only consistent with each other, the instances are linked. 2 Defendant, notably, provided no evidence from time recordings or declarations showing that 3 employees received their meal periods or waived them of their own volition. This is because, instead. 4 Defendant was well aware there was no system in place to properly pay meal period premiums and, as 5 such. Defendant is liable for its failings. 6 Lastly, Defendant's assertion that Plaintiffs' meal period claim brought pursuant to PAGA is 7 sfricken because the meal period claim was not certified demonstrates Defendant's failure to understand 8 Arias, supra. A PAGA action is not a class action and is not bound by certification requirements. Id, 46 9 Cal. 4th at 984. As such, the failure of a claim to meet certification requirements is not a basis to estop 10 the claim brought pursuant to PAGA. Id. 11 D. Defendant Filed An Unauthorized Motion Seeking Relief That Has Previously Been Denied Three Times 12 This is Defendant's fourth attempt to rid itself of Plaintiffs' PAGA claims through an attack on 13 the pleadings. The Court already rejected both of Defendant's attempts at summary judgment, 14 which included attempts to summarily adjudicate Plaintiffs PAGA action, and Defendant's 15 procedurally improper third attempt through a misnamed motion to strike Plaintiffs' PAGA claims. 16 Defendant has finally chosen the vehicle of a motion to strike that is named as such but, 17 importantly. Defendant blew the motion to strike filing deadline, which required Defendant to file such a 18 pleading challenge as Defendant's first responsive pleading. C.C.P. § 435(b). 19 Separately, Defendant was explicitly instmcted not to file its motion until after the Court 20 considered Plaintiffs' Trial Plan. Specifically, the Court stated: 21 I know you mentioned vour motions to deny certification and renew the PAGA motions, 22 um, I don't think they should befiledon this date. There is a lot to digest and depending on the discussions there may need to be decisions on some of these sub elements before 23 any motion like that is appropriate. 24 (Transcript, Exhibit 5. p.31:23-32:1 (emphasis added).) The Court continued: 25 I don't want to get substantive mlings mixed up with managing the trial and in a sense have somebody say, well, they shouldn't put on this claim or they shouldn't put on this 26 defense because it's not allowed by law, or something like that. It may be once we shake out what are the disputed trial issues and things that maybe you can't decide that 27 particular trial management issue until there has been a substantive mling. And it may be then that that's an appropriate time to have a motion for class ~ or decertification, or 28 whatever, or the PAGA motions. Or maybe there is, you know, a motion within the domain of law and motion departments or something that gets that thing done and then you have the trial management sub-issue, so to speak, decided after that or along with that. PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 12 CASE No. 34-2017-00210560 1 I think it's... more efficient... and... certainly more helpful to anyone else, if someone else 2 is deciding this, to not put all of that on at once.... 3 (Transcript, Exhibit 5. p.36:20-37:10 (emphasis added).) Defendant, here, has contravened the Court's 4 clear instmction by filing this Motion to Strike prior to a mling on Plaintiffs Trial Plan. 5 The Court should deny this fourth attempt, as it has the previous three, and just as the Califomia 6 Court of Appeal did in Carrington, supra, 30 Cal. App. 5th. There, the defendant (Starbucks) filed a pre- 7 trial "mofion regarding trial of representafive claim," claiming, exactly as Defendants are claiming 8 here, that "a representative PAGA action was not appropriate because no uniform policy or practice 9 could explain why employees took a late break; as such, individualized inquiries into each late meal 10 break were required." Id. at 508-509. The court summarily denied Starbucks' motion "finding it was one 11 'for summary judgment or adjudication in disguise,' and Starbucks had failed to comply with the 12 procedural requirements for summary judgment motions. (See, e.g.. Code Civ. Proc, § 437c.)" Id. at 13 509. This Court should follow suit and deny Defendant's clear attempt to deprive PlaintifF of her due 14 process rights and the procedural safeguards afforded to PlaintifF by the Code of Civil Procedure. 15 This case, instead, should proceed to trial. 16 17 IV. CONCLUSION For all the reasons as set forth herein Defendant's Motion must be denied. 18 19 Respectfully submitted, 20 DATED: April 17, 2020 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 21 22 By:. TBho\ Victoria B. Rivapalacio 23 Attomeys for PlaintifF 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION TO STRIKE REPRESENTATIVE PAGA CLAIMS 13 CASE No. 34-2017-00210560