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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com
3 ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497 DEC 2 1 2018
Telephone: +1 916 447 8299
5 Facsimile: +1 916 329 4900
By T. Elder
Deputy Clerk
6 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SACRAMENTO
10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
of herself and on behalf of all persoris CU-OE-GDS
11 similarly situated.
Plaintiff,
12 NOTICE OF MOTION AND MOTION
v. AS TO WHY SPEARS' CASE SHOULD
13 NOT PROCEED AS A PAGA
HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION
14 Caiifomia Corporation; and Does 1 through
50, inclusive,
15 Date: April 11, 2019
Defendants. Time: - 10:00 a.m.
16 Dept: 35
Judge: Hon. Alan G. Perkins
17
Complaint Filed: April 5, 2017
18 FAC Filed: June 29, 2017
19
20
TOMAS R. ARANA, on behalf of himself, all
others similarly situated, Complaint Filed: August 1, 2017
21 Consolidated Complaint Filed: Dec. 21, 2017
22 Plaintiff,
V.
23
24 HEALTH NET OF CALIFORNIA, INC., a
z 25
Caiifomia corporation; and DOES 1-50,
inclusive.
oOC 26 Defendant.
o 27
28
NOTICE OF MOTION AND MOTION
AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE that on April 11, 2019, at 10:00 a.m. or soon thereafter as may
3 be heard in Department 35 of the Superior Court of the State of Caiifomia, County of
4 Sacramento, Defendant Health Net of Caiifomia, Inc. ("HNC A") will and hereby does move the
5 Court for an order determining that Plaintiff Andrea Spears' case may not proceed as a
6 representative action under the Private Attorneys' General Act (the "PAGA").
7 HNCA seeks an order from the Court determining that Spears' case may not proceed as a
8 PAGA representative action because Spears' PAGA claims are either unexhausted or
9 unmanageable. Despite the numerous PAGA claims set forth in Spears' Consolidated Complaint,
10 she testified that her vmtten notice to the Labor and Workforce Development Agency contained
11 claims only for (1) alleged meal period violations, (2) alleged rest period violations, and
12 (3) regular rate violations based on HNCA's alleged failure to include the value of certain gift
13 cards and cash benefits received by employees for waiving medical coverage in employees'
14 regular rate for purposes of calculating overtime compensation. Because Spears failed to provide
15 adequate notice of the facts and theories giving rise to her PAGA claim for regular rate violations
16 and the nimierous other PAGA claims alleged in the Consolidated Complaint, she failed to
17 exhaust her administrative remedies for these PAGA claims, and they cannot proceed. Only her
18 meal and rest period claims were even arguably exhausted. But Spears cannot proceed with these
19 PAGA daims on a representative basis either, as they are unmanageable. The proof necessary for
20 Spears to present her PAGA claims for meal and rest period violations is not uniform; these
21 claims involve the resolution of complex factual issues; and these claims pose management
22 problems for the Court. Under these circumstances, the Court can and should strike Spears'
23 representative action.
24 The Motion as to Why Spears' Case Should Not Proceed as a PAGA Representative
25 Action is based on this Notice of Motion and Motion; the accompanying Memorandum of Points
26 and Authorities in support of the motion; the Declaration of Timothy J. Long and all attachments
27 thereto; the Declaration of Diane C. Rodes and all attachments thereto; the Compendium of
28
• -2- • , .
NOTICE OF MOTION AND MOTION
AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
1 Witness Declarations in Support of Defendant Health Net of California's Motions as to Why
2 Plaintiffs' Cases Should Not Proceed as PAGA Representative Actions, which attaches the
3 declarations of 46 HNCA employees; the Summary of Evidence in support of the motion; as well
4 as the pleadings, records and files in this case, and upon any further oral and documentary
5 evidence that may be presented at or before hearing on this matter.
6 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits
7 ofthis matter by 2:00 p.m., the court day before the hearing. The complete text of the
8 tentative rulings for the department may be downloaded off the court's website. If the party
9 does not have online access, they may call the dedicated phone number for the department
10 as referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m.
11 on the court day before the hearing and receive the tentative ruling. If you do not call the
12 court and the opposing party by 4:00 p.ni. the court day before the hearing, no hearing will
13 beheld.
/
14 Dated: December 21,2018 ORRICJC, ^lERRINGTON & SUTCLIFFE LLP
15
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^ ' .\lCHOLAS J. HORTON
^' Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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1135 0803 5352.2 '•
NOTICE OF MOTION AND MOTION
AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION
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1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com 3 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 DEC 2 1 2018 Telephone: +1 916 447 8299 5 Facsimile: +1 916 329 4900 By T. Elder Deputy Clerk 6 Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- of herself and on behalf of all persoris CU-OE-GDS 11 similarly situated. Plaintiff, 12 NOTICE OF MOTION AND MOTION v. AS TO WHY SPEARS' CASE SHOULD 13 NOT PROCEED AS A PAGA HEALTH NET OF CALIFORNIA, INC., a REPRESENTATIVE ACTION 14 Caiifomia Corporation; and Does 1 through 50, inclusive, 15 Date: April 11, 2019 Defendants. Time: - 10:00 a.m. 16 Dept: 35 Judge: Hon. Alan G. Perkins 17 Complaint Filed: April 5, 2017 18 FAC Filed: June 29, 2017 19 20 TOMAS R. ARANA, on behalf of himself, all others similarly situated, Complaint Filed: August 1, 2017 21 Consolidated Complaint Filed: Dec. 21, 2017 22 Plaintiff, V. 23 24 HEALTH NET OF CALIFORNIA, INC., a z 25 Caiifomia corporation; and DOES 1-50, inclusive. oOC 26 Defendant. o 27 28 NOTICE OF MOTION AND MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 TO PLAINTIFFS AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on April 11, 2019, at 10:00 a.m. or soon thereafter as may 3 be heard in Department 35 of the Superior Court of the State of Caiifomia, County of 4 Sacramento, Defendant Health Net of Caiifomia, Inc. ("HNC A") will and hereby does move the 5 Court for an order determining that Plaintiff Andrea Spears' case may not proceed as a 6 representative action under the Private Attorneys' General Act (the "PAGA"). 7 HNCA seeks an order from the Court determining that Spears' case may not proceed as a 8 PAGA representative action because Spears' PAGA claims are either unexhausted or 9 unmanageable. Despite the numerous PAGA claims set forth in Spears' Consolidated Complaint, 10 she testified that her vmtten notice to the Labor and Workforce Development Agency contained 11 claims only for (1) alleged meal period violations, (2) alleged rest period violations, and 12 (3) regular rate violations based on HNCA's alleged failure to include the value of certain gift 13 cards and cash benefits received by employees for waiving medical coverage in employees' 14 regular rate for purposes of calculating overtime compensation. Because Spears failed to provide 15 adequate notice of the facts and theories giving rise to her PAGA claim for regular rate violations 16 and the nimierous other PAGA claims alleged in the Consolidated Complaint, she failed to 17 exhaust her administrative remedies for these PAGA claims, and they cannot proceed. Only her 18 meal and rest period claims were even arguably exhausted. But Spears cannot proceed with these 19 PAGA daims on a representative basis either, as they are unmanageable. The proof necessary for 20 Spears to present her PAGA claims for meal and rest period violations is not uniform; these 21 claims involve the resolution of complex factual issues; and these claims pose management 22 problems for the Court. Under these circumstances, the Court can and should strike Spears' 23 representative action. 24 The Motion as to Why Spears' Case Should Not Proceed as a PAGA Representative 25 Action is based on this Notice of Motion and Motion; the accompanying Memorandum of Points 26 and Authorities in support of the motion; the Declaration of Timothy J. Long and all attachments 27 thereto; the Declaration of Diane C. Rodes and all attachments thereto; the Compendium of 28 • -2- • , . NOTICE OF MOTION AND MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION 1 Witness Declarations in Support of Defendant Health Net of California's Motions as to Why 2 Plaintiffs' Cases Should Not Proceed as PAGA Representative Actions, which attaches the 3 declarations of 46 HNCA employees; the Summary of Evidence in support of the motion; as well 4 as the pleadings, records and files in this case, and upon any further oral and documentary 5 evidence that may be presented at or before hearing on this matter. 6 Pursuant to Local Rule 1.06 (A), the court will make a tentative ruling on the merits 7 ofthis matter by 2:00 p.m., the court day before the hearing. The complete text of the 8 tentative rulings for the department may be downloaded off the court's website. If the party 9 does not have online access, they may call the dedicated phone number for the department 10 as referenced in the local telephone directory between the hours of 2:00 p.m. and 4:00 p.m. 11 on the court day before the hearing and receive the tentative ruling. If you do not call the 12 court and the opposing party by 4:00 p.ni. the court day before the hearing, no hearing will 13 beheld. / 14 Dated: December 21,2018 ORRICJC, ^lERRINGTON & SUTCLIFFE LLP 15 16 ^ ' .\lCHOLAS J. HORTON ^' Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 19 20 21 22 23 24 25 26 27 28 . -3- 1135 0803 5352.2 '• NOTICE OF MOTION AND MOTION AS TO WHY SPEARS' CASE SHOULD NOT PROCEED AS A PAGA REPRESENTATIVE ACTION