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TIMOTHY J. LONG (STATE BAR NO. 137591) FILED
lilonizrf?)orrick.com Superior Court Of CaUfor^eia,
NICHOLAS .1. HORTON (STATE BAR NO. 289417)
i-)h(M-ton'f??)orrick.com
12/12/2018
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000 rnrubafcaba
4 Sacramento, CA 95814-4497 By , Deputy
Telephone: +1 916 447 8299
5 Facsimile: +1916 329 4900 Casei Numbug"
6 Attorneys for Defendant
34-2017-00210560
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 persons CU-OE-GDS
11 similarly situated,
Plaintiff.
12 DEFENDANT HEALTII NET OF
CALIFORNIA, INC.'S OPPOSITION TO
13 MOTION TO CONTINUE HEARING
DATE AND BRIEFING SCHEDULE
HEALTH NET OF CALIFORNIA, INC., a RELATING TO CLASS
14 California Corporation; and Does I Ihrough CERTIFICATION
50, inclusive,
15 Date: December 14, 2018
Defendants. Time: 2:00 pm
16 Dept: 35
Judge: Hon. Alan G. Perkins
17
Complaint Filed: April 5. 2017
18 FAC Filed: June 29. 2017
19
TOMAS R. ARANA, on behalf of himself, all
Complaint Filed: August 1, 2017
20 others similarly situated,
Consolidated Complaint Filed: Dec. 21, 2017
21 Plaintiff.
22 V.
23 HEALTH NET OF CALIFORNIA, INC., a
California corporation; and DOES 1-50,
24 inclusive.
25 Defendant.
26
27
28
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
I. INTRODUCTION
Defendant Health Net of Califomia, Inc. ("HNCA"') filed a renewed motion for summary
J adjudication (the "Renewed MSA") on November 19, 2018. As to Plaintiff Andrea Spears,
4 HNCA's motion seeks adjudication of a discrete legal issue that has absolutely no impact on the
5 propriety of certifying Spears' claims for class treatment.' Indeed, Spears' only claim at issue in
6 the Renewed MSA is her claim that IfNCA incorrectly calculated her overtime pay when it did
7 not include a cash benefit that Spears received from her health plan in her regular rate of pay.
8 Thus, Spears' sole claim to be adjudicated by the Renewed MSA is a pay practices claim. LFNC.A
9 readily admits, and is even willing to stipulate, that this claim can be decided on a class-wide
10 basis under California Code of Civil Procedure section 382 in the event the Court denies I lNCA's
11 Renewed MSA.
12 Yet now—weeks after receiving HNCA's Renewed MSA briefing, and just over a week
13 before briefmg on Spears' motion for class certification and HNCA's PAGA-related motions was
14 due—Spears contends that the issues raised by the Renewed MSA require this Court to continue
15 the hearing and briefing schedule for these motions. This request is meritless. In fact, the
16 resolution ofthe Renewed MSA will not impact the arguments that Spears might present in her
17 motion for class certification. In light of this reality, there is no basis for any further continuance
18 of the hearing or briefing schedule for the parties' class certification or PAGA-related motions.
19 II. RELEVANT PROCEDURAL BACKGROUND
20 On August 8, 2018, this Court entered an order setting a December 14th deadline for
21 Plaintiffs to file a class certification motion. Decl. of Timothy J. Long ISO Def's Oppo. to PL's
22 Mot. to Continue Hearing Date and Briefing Schedule ("Long Dec!."), Dec. 12, 2018,11 2, Ex A
23 at 3, This order further provides that HNCA may bring a "motion as to why the case should not
24 be certified as a class action and/or proceed as a PAG.A action" (the "PAGA Motions") by that
25 same dale. Id This order continued previously set briefing deadlines for these motions. Id. *[ 2..
26 On November 19, 2018, HNCA filed ils Renewed MSA, seeking to have the Court
27
' The Renewed MSA presents other issues lhat relate only to Arana's claims, and which have been resolved by virtue
28 of Arana's stipulation that he is not pursuing those claims on a class or individual basis.
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
1 adjudicate the merits of Plaintiffs' claim that HNCA improperly calculated their regular rale of
2 pay, and thus improperly calculated Plaintiffs'overtime pay. Long Decl. 1[ 3 & Ex. B. HNCA
3 personally ser\'ed the Renewed MSA on November 19, 2018. Id.%5. Eight days later, on
4 November 27, 2018, Spears requested HNCA stipulate to continue the class certification hearing
5 and briefing schedule. Long Decl. 1{ 6; see also Decl. of Nicholas J. Horton ISO Def's Oppo. lo
6 PL's Ex Parte Appl. for Order Shortening Time ("Horton Dec!."), Dec. 7, 2018, ^ 7 (citing
7 Declaration of Piya Mukherjee in Support of Plaintiffs' Motion to Continue Hearing Date and
8 Briefing Schedule Relating to Class Certification ("Mukherjee Decl."), Dec. 5, 2018, Ex. 3). On
9. November 29, 2018, HNCA declined the request for stipulation, as there is no reason the class
10 certification hearing and briefing cannot proceed in parallel to the Renewed MSA. Long Decl.
11 'II 7; Horton Decl. ^ 8 (citing Mukherjee Decl. Ex. 3).
12 Spears waited another six days, until December 5, 2018, to file a "Motion to Continue
13 Hearing Date and Briefing Schedule Relating to Class Certification." Long Decl. K 10. Spears
14 simultaneously filed an ex pane application for an order shortening time on her motion to
15 continue the hearing date and briefing schedule relating to class certification. Id. On
16 December 7, 2018, HNCA filed an opposition to the ex parte application, and the Court held a
17 hearing on the ex parte application that same day.- Id. ^|1! 11, 12. .At the hearing, the Court
18 continued the briefing schedule on Plaintiffs' class certification motion and HNCA's PAGA
19 Motions by one week, such that opening briefs are now due on December 21, 2018. Id. \ 13,
20 Ex. D. The Court also set a hearing on Spears' motion to continue the class certification hearing
21 and briefing schedule for December 14, 2018, at 2:00 p.m. Id. The Court ordered that HNCA
22 would have until December 12, 2018, at 3:00 p.m. to file a supplemental opposition to Spears'
23 motion for a continuance. Id.
24 HI. ANALYSIS
25 A. HNCA'S Motion for Summarv Adjudication Is Limited to One Legal Issue.
26 The sole basis for Spears' motion to continue is the Renewed MSA. That motion
27
- HNCA incorporates by reference its prior briefing on Spears' ex pane application and motion for a continuance,
28 filed on December?, 2018.
J -
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
1 originally sought resolution of four claims, three of which—those that applied only to Arana—
2 have since been resolved. The single remaining claim has to do wilh the treatment of a cash
3 benefit paid to Spears, which she claims should have been included in her regular rate when she
4 was paid overtiine. HNCA contends that this cash benefit was properly excluded under what is
5 known as the Heallh-Benefits Contribution Exception. For the convenience ofthe Courl, a copy
6 ofthe points and authorities HNCA has submitted in support of the Renewed MSA is attached as
7 Exhibit B to Declaration of Timothy J. Long, filed herewith.
8 ITNCA's Renewed MSA seeks adjudication of whether ITNCA properly excluded a cash
9 benefit paid lo Spears by her health plan from the reguUu rale when calculating her overtime pay.^
10 Long Decl. 3 & Ex. B at 15:1-19:2. This claim does not apply to Arana because he never
11 received this cash benefit. I d "H 3, Ex. B at 8:12-17, 9:5-21. When HNCA filed the Renewed
12 MSA, I-fNCA also sought adjudication as to whether HNCA properly treated what are known as
13 SPOT Bonuses, ACA Incentive Payments, and Wellness Incentive Payments when calculating
14 Arana's overtime pay. /i/. ^ 3 & Ex. B at 21:1-23:12. These claims do not apply to Spears
15 because she never received these payments. Id. ^ 3, Ex. B at 8:19-9:3. Plaintiffs' meal and rest
16 period claims are not at issue in the Renewed MSA. Id. *! 4 & Ex. B.
17 Importantly, after HNCA filed its Renewed K]SA, Arana's counsel stipulated lhat Arana is
18 not pursuing any claims lhat HNCA failed to properly calculate the regular rate of pay. Long
19 Decl. ^ 8, Ex. C. Specifically, at Arana's deposition, the parlies stipulated on the record that:
20 There have been a number of claims in the lawsuit having to do
wilh the proper calculation of the regular rale for purposes of
21 calculating overtime, and counsel has stipulated that Mr. Arana is
not making any claims as to any remuneration that should have
22 been included in ihe regular rate but wasn't for purposes of
calculating overtime, including but not limited lo SPOT awards,
23 ACA incentive payments, wellness payments and cash benefits
provided to Health Net employees.
25 Id. ^I 8, Ex. C at 126:14-24. Arana's counsel confirmed this stipulation, slating " I agree and
26 stipulate that as to my client only and not any other putative class member, we are not contending
27
HNCA also seeks adjudication of the derivative PAGA claim that is based on Spears' cash benefit claim. Long
28 Decl. 11 3, Ex. B.
-4-
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
there is a regular rale claim." !d. % 8, Ex. C at 126:25-127:3. Thus, with Arana's stipulation, only
Spears' cash benefit claim remains to be decided via the Renewed MSA.
B. Spears' Cash Benefit Claim Is a Pav Practice Claim.
4 The sole contested claim in the renewed MSA—that HNCA failed to calculate Spears'
5 overtime correctly because HNCA failed to include the cash benefit paid to her in her regular
6 rate—is a pay practices claim. In other words, if l-fNCA was legally required to include this
7 payment when calculating Spears' regular rale, it was also legally required to include this
payment in calculating the regular rate of every other non-exempt employee who received this
9 cash benefit during the limitations period.
10 This is so clearly the case that HNCA will stipulate that, in the event the Court (Judge
11 Krueger) denies its Renewed MSA, this issue can be certified for class treatment pursuant to
12 Code of Civil Procedure section 382.
13 Given that the sole contested claim in the Renewed MSA is a pay practices claim, and
14 HNCA's willingness lo stipulate lo the appropriateness of class treatment under Section 382
15 should the Court deny the Renewed MSA, Spears has absolutely no justification for persisting in
16 seeking a continuance of the briefing schedule and hearing on the class certification and PAGA
17 Motions.
18 C. There Should Be No Concerns About Onc-Wav Inten'cntion.
19 At the December 7th hearing on Spears' ex parte application, the Courl questioned
20 whether HNCA's Renewed MSA raised the issue of one-way inlervention. It does not. "One-
21 way intervention" is "a consequence of actions for damages in which a decision for or againsi one
22 member ofthe class did not inevitably entail the same result for all," due to a named plaintiff
23 seeking adjudication of an issue on the merits prior to the court reaching the issue of class
24 certification. Fireside Dank v. Superior Court, 40 Cal. 4th 1069, 1078 (2007) (internal quotation
25 marks omitted). As the Fireside Bonk court explained, the problem posed by one-way
26 intervention is that
27 One party could style the case a 'class action,' but the missing
parties would not be bound. A victory by the plaintiff would be
28
-5-
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
certification. Fireside Bank v. Superior Courl, 40 Cal. 4th 1069, 1078 (2007) (internal quotation
2 marks omitted). As the Fireside Bank court explained, the problem posed by one-way
3 inlervention is that
4 One party could style the case a 'class action,' but the missing
parties would not be bound. A victory by the plaintiff would be
5 followed by an opportunity for other members ofthe class to
intervene and claim the spoils; a loss by the plaintiff would not bind
6 other members of the class. (It would not be in their interest to
intervene in a lost cause, and they could not be bound by a
7 judgment to which they were not parties ) So the defendant
could win only againsi the named plaintiff and might face
additional suits by other members of the class, but it could lose
against all members of the class.
9
10 Id. Bui a defendant's motion for a hearing on the merits prior to the court determining whether
11 the case can proceed as a class action does not implicate these concerns. Id. at 1082-83; Rose v.
12 Cily of Hayward, 126 Cal. App. 3d 926, 937 (1981). Thus, when the defendant requests that the
13 court decide an issue on the merits prior to class certification proceedings—as HNCA did here-
14 the rule against one-way intervention does not pose a barrier to the courl adjudicating thai motion.
15 Nor does it affect the briefing on class ceitification in this case.
16 IV. CONCLUSION
17 The Renewed MSA presents only a single legal issue that will not impact Spears' ability
lo brief her class certification motion. The Court should therefore deny Spears' motion to
19 continue the hearing dale and briefing schedule relating to class certification and the PAGA
20 motions.
21
22 Dated: December 12, 2018 ORRICK, HERRINGTON <& SUTCLIFFE LLP
9
24 By: )" ( ^
^, '-TIMOTHY J:-LONG
-•^ Attorneys for Defendant
HEALTH NET OF CALIFORNIA, INC.
27
.6-
DEFENDANT HEALTH NET OF CALIFORNIA, lNC'¥opFoSITION TO MOTION TO CONTINUlT
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
•US'!-6038-1721.2
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pCcd By fcyc TIMOTHY J. LONG (STATE BAR NO. 137591) FILED lilonizrf?)orrick.com Superior Court Of CaUfor^eia, NICHOLAS .1. HORTON (STATE BAR NO. 289417) i-)h(M-ton'f??)orrick.com 12/12/2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 rnrubafcaba 4 Sacramento, CA 95814-4497 By , Deputy Telephone: +1 916 447 8299 5 Facsimile: +1916 329 4900 Casei Numbug" 6 Attorneys for Defendant 34-2017-00210560 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 persons CU-OE-GDS 11 similarly situated, Plaintiff. 12 DEFENDANT HEALTII NET OF CALIFORNIA, INC.'S OPPOSITION TO 13 MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE HEALTH NET OF CALIFORNIA, INC., a RELATING TO CLASS 14 California Corporation; and Does I Ihrough CERTIFICATION 50, inclusive, 15 Date: December 14, 2018 Defendants. Time: 2:00 pm 16 Dept: 35 Judge: Hon. Alan G. Perkins 17 Complaint Filed: April 5. 2017 18 FAC Filed: June 29. 2017 19 TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1, 2017 20 others similarly situated, Consolidated Complaint Filed: Dec. 21, 2017 21 Plaintiff. 22 V. 23 HEALTH NET OF CALIFORNIA, INC., a California corporation; and DOES 1-50, 24 inclusive. 25 Defendant. 26 27 28 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION I. INTRODUCTION Defendant Health Net of Califomia, Inc. ("HNCA"') filed a renewed motion for summary J adjudication (the "Renewed MSA") on November 19, 2018. As to Plaintiff Andrea Spears, 4 HNCA's motion seeks adjudication of a discrete legal issue that has absolutely no impact on the 5 propriety of certifying Spears' claims for class treatment.' Indeed, Spears' only claim at issue in 6 the Renewed MSA is her claim that IfNCA incorrectly calculated her overtime pay when it did 7 not include a cash benefit that Spears received from her health plan in her regular rate of pay. 8 Thus, Spears' sole claim to be adjudicated by the Renewed MSA is a pay practices claim. LFNC.A 9 readily admits, and is even willing to stipulate, that this claim can be decided on a class-wide 10 basis under California Code of Civil Procedure section 382 in the event the Court denies I lNCA's 11 Renewed MSA. 12 Yet now—weeks after receiving HNCA's Renewed MSA briefing, and just over a week 13 before briefmg on Spears' motion for class certification and HNCA's PAGA-related motions was 14 due—Spears contends that the issues raised by the Renewed MSA require this Court to continue 15 the hearing and briefing schedule for these motions. This request is meritless. In fact, the 16 resolution ofthe Renewed MSA will not impact the arguments that Spears might present in her 17 motion for class certification. In light of this reality, there is no basis for any further continuance 18 of the hearing or briefing schedule for the parties' class certification or PAGA-related motions. 19 II. RELEVANT PROCEDURAL BACKGROUND 20 On August 8, 2018, this Court entered an order setting a December 14th deadline for 21 Plaintiffs to file a class certification motion. Decl. of Timothy J. Long ISO Def's Oppo. to PL's 22 Mot. to Continue Hearing Date and Briefing Schedule ("Long Dec!."), Dec. 12, 2018,11 2, Ex A 23 at 3, This order further provides that HNCA may bring a "motion as to why the case should not 24 be certified as a class action and/or proceed as a PAG.A action" (the "PAGA Motions") by that 25 same dale. Id This order continued previously set briefing deadlines for these motions. Id. *[ 2.. 26 On November 19, 2018, HNCA filed ils Renewed MSA, seeking to have the Court 27 ' The Renewed MSA presents other issues lhat relate only to Arana's claims, and which have been resolved by virtue 28 of Arana's stipulation that he is not pursuing those claims on a class or individual basis. DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 1 adjudicate the merits of Plaintiffs' claim that HNCA improperly calculated their regular rale of 2 pay, and thus improperly calculated Plaintiffs'overtime pay. Long Decl. 1[ 3 & Ex. B. HNCA 3 personally ser\'ed the Renewed MSA on November 19, 2018. Id.%5. Eight days later, on 4 November 27, 2018, Spears requested HNCA stipulate to continue the class certification hearing 5 and briefing schedule. Long Decl. 1{ 6; see also Decl. of Nicholas J. Horton ISO Def's Oppo. lo 6 PL's Ex Parte Appl. for Order Shortening Time ("Horton Dec!."), Dec. 7, 2018, ^ 7 (citing 7 Declaration of Piya Mukherjee in Support of Plaintiffs' Motion to Continue Hearing Date and 8 Briefing Schedule Relating to Class Certification ("Mukherjee Decl."), Dec. 5, 2018, Ex. 3). On 9. November 29, 2018, HNCA declined the request for stipulation, as there is no reason the class 10 certification hearing and briefing cannot proceed in parallel to the Renewed MSA. Long Decl. 11 'II 7; Horton Decl. ^ 8 (citing Mukherjee Decl. Ex. 3). 12 Spears waited another six days, until December 5, 2018, to file a "Motion to Continue 13 Hearing Date and Briefing Schedule Relating to Class Certification." Long Decl. K 10. Spears 14 simultaneously filed an ex pane application for an order shortening time on her motion to 15 continue the hearing date and briefing schedule relating to class certification. Id. On 16 December 7, 2018, HNCA filed an opposition to the ex parte application, and the Court held a 17 hearing on the ex parte application that same day.- Id. ^|1! 11, 12. .At the hearing, the Court 18 continued the briefing schedule on Plaintiffs' class certification motion and HNCA's PAGA 19 Motions by one week, such that opening briefs are now due on December 21, 2018. Id. \ 13, 20 Ex. D. The Court also set a hearing on Spears' motion to continue the class certification hearing 21 and briefing schedule for December 14, 2018, at 2:00 p.m. Id. The Court ordered that HNCA 22 would have until December 12, 2018, at 3:00 p.m. to file a supplemental opposition to Spears' 23 motion for a continuance. Id. 24 HI. ANALYSIS 25 A. HNCA'S Motion for Summarv Adjudication Is Limited to One Legal Issue. 26 The sole basis for Spears' motion to continue is the Renewed MSA. That motion 27 - HNCA incorporates by reference its prior briefing on Spears' ex pane application and motion for a continuance, 28 filed on December?, 2018. J - DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 1 originally sought resolution of four claims, three of which—those that applied only to Arana— 2 have since been resolved. The single remaining claim has to do wilh the treatment of a cash 3 benefit paid to Spears, which she claims should have been included in her regular rate when she 4 was paid overtiine. HNCA contends that this cash benefit was properly excluded under what is 5 known as the Heallh-Benefits Contribution Exception. For the convenience ofthe Courl, a copy 6 ofthe points and authorities HNCA has submitted in support of the Renewed MSA is attached as 7 Exhibit B to Declaration of Timothy J. Long, filed herewith. 8 ITNCA's Renewed MSA seeks adjudication of whether ITNCA properly excluded a cash 9 benefit paid lo Spears by her health plan from the reguUu rale when calculating her overtime pay.^ 10 Long Decl. 3 & Ex. B at 15:1-19:2. This claim does not apply to Arana because he never 11 received this cash benefit. I d "H 3, Ex. B at 8:12-17, 9:5-21. When HNCA filed the Renewed 12 MSA, I-fNCA also sought adjudication as to whether HNCA properly treated what are known as 13 SPOT Bonuses, ACA Incentive Payments, and Wellness Incentive Payments when calculating 14 Arana's overtime pay. /i/. ^ 3 & Ex. B at 21:1-23:12. These claims do not apply to Spears 15 because she never received these payments. Id. ^ 3, Ex. B at 8:19-9:3. Plaintiffs' meal and rest 16 period claims are not at issue in the Renewed MSA. Id. *! 4 & Ex. B. 17 Importantly, after HNCA filed its Renewed K]SA, Arana's counsel stipulated lhat Arana is 18 not pursuing any claims lhat HNCA failed to properly calculate the regular rate of pay. Long 19 Decl. ^ 8, Ex. C. Specifically, at Arana's deposition, the parlies stipulated on the record that: 20 There have been a number of claims in the lawsuit having to do wilh the proper calculation of the regular rale for purposes of 21 calculating overtime, and counsel has stipulated that Mr. Arana is not making any claims as to any remuneration that should have 22 been included in ihe regular rate but wasn't for purposes of calculating overtime, including but not limited lo SPOT awards, 23 ACA incentive payments, wellness payments and cash benefits provided to Health Net employees. 25 Id. ^I 8, Ex. C at 126:14-24. Arana's counsel confirmed this stipulation, slating " I agree and 26 stipulate that as to my client only and not any other putative class member, we are not contending 27 HNCA also seeks adjudication of the derivative PAGA claim that is based on Spears' cash benefit claim. Long 28 Decl. 11 3, Ex. B. -4- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION there is a regular rale claim." !d. % 8, Ex. C at 126:25-127:3. Thus, with Arana's stipulation, only Spears' cash benefit claim remains to be decided via the Renewed MSA. B. Spears' Cash Benefit Claim Is a Pav Practice Claim. 4 The sole contested claim in the renewed MSA—that HNCA failed to calculate Spears' 5 overtime correctly because HNCA failed to include the cash benefit paid to her in her regular 6 rate—is a pay practices claim. In other words, if l-fNCA was legally required to include this 7 payment when calculating Spears' regular rale, it was also legally required to include this payment in calculating the regular rate of every other non-exempt employee who received this 9 cash benefit during the limitations period. 10 This is so clearly the case that HNCA will stipulate that, in the event the Court (Judge 11 Krueger) denies its Renewed MSA, this issue can be certified for class treatment pursuant to 12 Code of Civil Procedure section 382. 13 Given that the sole contested claim in the Renewed MSA is a pay practices claim, and 14 HNCA's willingness lo stipulate lo the appropriateness of class treatment under Section 382 15 should the Court deny the Renewed MSA, Spears has absolutely no justification for persisting in 16 seeking a continuance of the briefing schedule and hearing on the class certification and PAGA 17 Motions. 18 C. There Should Be No Concerns About Onc-Wav Inten'cntion. 19 At the December 7th hearing on Spears' ex parte application, the Courl questioned 20 whether HNCA's Renewed MSA raised the issue of one-way inlervention. It does not. "One- 21 way intervention" is "a consequence of actions for damages in which a decision for or againsi one 22 member ofthe class did not inevitably entail the same result for all," due to a named plaintiff 23 seeking adjudication of an issue on the merits prior to the court reaching the issue of class 24 certification. Fireside Dank v. Superior Court, 40 Cal. 4th 1069, 1078 (2007) (internal quotation 25 marks omitted). As the Fireside Bonk court explained, the problem posed by one-way 26 intervention is that 27 One party could style the case a 'class action,' but the missing parties would not be bound. A victory by the plaintiff would be 28 -5- DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION certification. Fireside Bank v. Superior Courl, 40 Cal. 4th 1069, 1078 (2007) (internal quotation 2 marks omitted). As the Fireside Bank court explained, the problem posed by one-way 3 inlervention is that 4 One party could style the case a 'class action,' but the missing parties would not be bound. A victory by the plaintiff would be 5 followed by an opportunity for other members ofthe class to intervene and claim the spoils; a loss by the plaintiff would not bind 6 other members of the class. (It would not be in their interest to intervene in a lost cause, and they could not be bound by a 7 judgment to which they were not parties ) So the defendant could win only againsi the named plaintiff and might face additional suits by other members of the class, but it could lose against all members of the class. 9 10 Id. Bui a defendant's motion for a hearing on the merits prior to the court determining whether 11 the case can proceed as a class action does not implicate these concerns. Id. at 1082-83; Rose v. 12 Cily of Hayward, 126 Cal. App. 3d 926, 937 (1981). Thus, when the defendant requests that the 13 court decide an issue on the merits prior to class certification proceedings—as HNCA did here- 14 the rule against one-way intervention does not pose a barrier to the courl adjudicating thai motion. 15 Nor does it affect the briefing on class ceitification in this case. 16 IV. CONCLUSION 17 The Renewed MSA presents only a single legal issue that will not impact Spears' ability lo brief her class certification motion. The Court should therefore deny Spears' motion to 19 continue the hearing dale and briefing schedule relating to class certification and the PAGA 20 motions. 21 22 Dated: December 12, 2018 ORRICK, HERRINGTON <& SUTCLIFFE LLP 9 24 By: )" ( ^ ^, '-TIMOTHY J:-LONG -•^ Attorneys for Defendant HEALTH NET OF CALIFORNIA, INC. 27 .6- DEFENDANT HEALTH NET OF CALIFORNIA, lNC'¥opFoSITION TO MOTION TO CONTINUlT HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION •US'!-6038-1721.2