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1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP FiLED/ENDORSED
Norman B. Blumenthal (State Bar #068687)
2 Kyle R. Nordrehaug (State Bar #205975)
Aparajit Bhowmik (State Bar #248066) MAR 1 5 2019
3 Piya Mukherjee (State Bar #274217)
Victoria B. Rivapalacio (State Bar #275115) By:. K, Fav
4 2255 Calle Clara
La Jolla, CA 92037
• 5 Telephone: (858)551-1223
Facsimile: (858) 551-1232
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Attorneys for Plaintiff
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SACRAMENTO
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ANDREA SPEARS, an individual, on behalf Case No. 34-2017-002I0560-CU-OE-GDS
13 of herself and on behalf of all persons
similarly situated, CLASS ACTION
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15 Plaintiff, DECLARATION OF APARAJIT BHOWMIK IN
SUPPORT OF NOTICE OF DEFENDANT'S
16 NON-COMPLIANCE REGARDING
vs.
STIPULATION FOR CLASS CERTIFICATION
17 HEALTH NET OF CALIFORNIA, INC., a
Califomia Corporation; and Does 1 through
18 50, Inclusive,
19 Defendants. Date: April 11, 2019
Time: 10:00 a.m.
20 Dept.: 35
TOMAS R. ARANA, on behalf of himself, Judge: Hon. Alan G. Perkins
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
California corporation; and DOES 1 through
25 50, inclusive.
26 Defendants.
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DECLARATION OF APARAJIT BHOWMIK
CASE No. 34-2017-00210560
1 DECLARATION OF APARAJIT BHOWMIK
2 1, APARAJIT BHOWMIK, declare as follows:
3 1. 1 am an attomey at law duly licensed to practice before all of the courts of the State of
4 Califomia. 1 am a partner with the law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP, attomeys
5 of record for Plaintiff Andrea Spears. 1 have personal knowledge of the facts set forth herein, and if called
6 as a witness, could and would testify competently thereto.
7 2. A true and correct copy of Plaintiff Spears' Motion to Continue Hearing Date and Briefing
8 Schedule Relating to Class Certification is attached hereto as Exhibit 1.
9 3. A true and correct copy ofDefendant's Opposition to PlaintifPs Motion to Continue Hearing
10 Date and Briefing Schedule Relating to Class Certification is attached hereto as Exhibit 2.
11 4. A true and correct copy of the December 14, 2018 Reporter's Transcript of Proceedings
12 regarding the Motion to Continue Hearing Date and Briefing Schedule Relating to Class
13 Certification is attached here to as Exhibit 3.
14 5. A true and correct copy of an email chain between counsel for Plaintiff and counsel for
15 Defendant is attached hereto as Exhibit 4.
16 6. A true and correct copy of the Stipulation regarding Class Certification sent by counsel for
17 Plaintiff to counsel for Defendant is attached hereto as Exhibit 5.
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19 I declare under penalty of perjury under the laws of the State of California and the United States that
20 the foregoing is true and correct. Executed at La Jolla, California on March 14, 2019.
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23 ^ ' ^ ~ 'A.J. Bhowmik
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DECLARATION OF APARAJIT BHOWMIK
CASE No. 34-2017-00210560
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EXHIBIT 1
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DECLARATION OF APARAJIT BHOWMIK
CASE No. 34-2017-00210560
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)
3 Piya Mukherjee (State Bar #274217)
2255 Calle Clara
4 La Jolla, CA 92037
Telephone: (858)551-1223
5 Facsimile: (858) 551-1232
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Attomeys for Plaintiff Andrea Spears
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF SACRAMENTO
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11 ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS
of herself and on behalf of all persons
12 similarly situated.
Plaintiff,
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CLASS ACTION
14 PLAINTIFF ANDREA SPEARS'S NOTICE
HEALTH NET OF CALIFORNIA, INC., a OF MOTION AND MOTION TO
15 Califomia Corporation; and Does 1 through CONTINUE HEARING DATE AND
50, inclusive. BRIEFING SCHEDULE RELATING TO
16 Defendants. CLASS CERTIFICATION;
17 TOMAS R. ARANA, on behalf of himself, all MEMORANDUM OF POINTS AND
others similarly situated. AUTHORITIES IN SUPPORT
18 Plaintiff,
V.
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Hearing Date: TBD
HEALTH NET OF CALIFORNLA., INC., a Hearing Time: TBD
20 Califomia corporation; and DOES 1-50, Judge: Hon. Alan G. Perkins
inclusive. Dept.: 35
21 Defendant.
22 Action Filed: April 5, 2017
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
CASE No. 34-2017-00210560
1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE THAT on a date and time to be determined by the Court, Plaintiff
,3 Andrea Spears will and hereby does move for an order continuing the December 14,2018 deadline for
4 filing Plaintiffs' opening brief for class certification and Defendant's motion for decertification, briefmg
5 schedules and the associated April 11, 2019 hearing date. This motion will be heard before the
6 Honorable Alan G. Perkins, Judge ofthe Superior Court ofthe County of Sacramento.
7 This motion is brought on the grounds that good cause exists to enter the order as on
8 November 19,2018, Defendantfileda Renewed Motion for Summary Adjudication (" Renewed MSA")
9 without providing prior notice to both Plaintiffs and the Court, and unilaterally set the hearing date for
10 the Renewed MSA on Febraary 4, 2019. Because the outcome ofDefendant's Renewed MSA will
11 affect how Plaintiffs will present the common predominance theories of liability in Plaintiffs' upcoming
12 motion for class certification as well as Plaintiffs' opposition to Defendaiit's forthcoming motion for
13 decertification, the interests of efficiency require that the briefing schedules for the motion for class
14 certification and motion for decertification be continued. Plaintiffs are, therefore, requesting the briefing
15 schedule continued such that the hearing on the class certification and decertification motions is on June
16 28, 2019, or a date thereafter convenient for the Court. This request, if granted, would move the filing
17 date of the motions from December 14, 2018 to no earlier than April 12, 2018, providing Plaintiffs a
18 sufficient amount of time to draft the motion based on the outcome ofDefendant's Renewed MSA.
19 Counsel has made a reasonable and good faith effort to informally resolve the issues presented
20 by this motion. Defendant has um-easonably refused to cooperate in continuing the class certification
21 motion briefing schedule and hearing date. The motion will be based upon this notice, the memorandum
22 of points and authorities, the declaration of Piya Mukherjee and exhibits thereto, along with the papers
23 in the Court record and the oral argument at the hearing.
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
CASE No. 34-2017-00210560
1 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of
2 this matter by 2:00 p.m., the court day before the hearing. The hearing date on this motion shall
3 be set by the Court. The complete text of the tentative rulings for the department may be
4 downloaded off the court's website. If the party does not have online access, they may call the
5 dedicated phone number for the department as referenced in the local telephone directory between
6 the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative
7 ruling. If you do not call the court and opposing party on the court day before the hearing, no
8 hearing will be held.
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DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP
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11 By:
Piya
*iya Muk
Mukherjee
12 •""Attomeys for Plaintiff AnSrea Spears
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
CASE No. 34-2017-00210560
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs hereby moves for an Order continuing the December 14, 2018 deadline for filing
4 Plaintiffs' opening brief for class certification and Defendant's decertification motion to no earlier than
5 April 12,2019, which would result in approximately a four (4) month continuance of the filing deadline.
6 This requested continuance would also result in only a less than two (2) month continuance to the April
7 I I , 2019 hearing date.
8 The continuance is required because Defendant Health Net of Califomia, Inc. ("Defendant")
9 filed a Renewed Motion for Summary Adjudication ("Renewed MSA") on November 19, 2018 to be
10 heard on Febraary 4, 2019 which would result in Plaintiffs needing to file the motion for class
11 certification well before aralingon the Renewed MSA. Given that the result ofthe Renewed MSA could
12 affect the claims Plaintiffs may seek to certify and the way Plaintiffs may present the theory of liability,
13 a continuance is needed so the motion for class certification and opposition to the decertification motion
14 can rely on the Renewed MSA raling.
15 Defendant has previously filed a motion for summary adjudication which was set to be heard
16 the day before Plaintiffs' deadline to file a motion for class certification on September 28, 2018. After
17 forcing Plaintiffs to file a motion to continue the class certification motion hearing date and briefmg
18 schedule. Defendantfinallystipulated to a continuance of the class certification motion filing deadline,
19 hearing date and briefmg schedule until after the hearing on the motion for summary adjudication.
20 After the Court raled to grant in part and deny in part Defendant's motion for summary
21 adjudication, the Parties appeared before Judge Perkins in Department 35 for a case management
22 conference on November 9, 2018 where Defendant did not at any point state at the hearing that
23 Defendant had any intention to file a second motion for summary adjudication. Defendant's case
24 management conference statement, also, failed to express Defendant's intent to file a renewed motion
25 for summary adjudication. Rather, ten (10) days after the case management conference. Defendant blind-
26 sided Plaintiffs and the Court with the filing ofthe Renewed MSA.
27 Plaintiffs have been diligent in prosecuting this matter against Defendant, serving and
28 responding to discovery, taking the deposition ofDefendant's Person Most Knowledgeable ("PMK"),
NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
CASE No. 34-2017-00210560
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1 engaging in significant motion practice, including, successfully opposing Defendant's initial motion for
2 summary adjudication. (Declaration of Piya Mukherjee 3 ("Mukherjee Decl.")).
3 In this class action. Plaintiffs assert causes of action based at least in part on Defendant's
4 failure to properly calculate Plaintiffs' and Class Members' regular rate, which results in a systemic
5 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of this issue
6 as to Defendant's miscalculation of Plaintiffs and Class Members' regular rate and corresponding failure
7 to compensate Plaintiffs and Class Members for all their overtime hours worked. Plaintiffs oppose
8 Defendant's Renewed MSA and will continue to seek redress on behalf of a class of employees who
9 were subject to this practice and who worked overtime. Plaintiffs will seek to certify a class based on
10 these allegations. To the extent Defendant's Renewed MSA is granted in any maimer, it will have clear
11 implications for Plaintiffs' motion to certify a class based on the claims at issue. Because the Febraary
12 4,2019 hearing regarding Defendant's failure to compensate its employees for all overtime hours worked
13 by failing to include all non-discretionary bonus wages in its calculation of the regular rate and the
14 subsequent order will impact Plaintiffs' motion for class certification, currently due for on December 14,
15 2018, Plaintiffs seek a continuance to the deadline for filing the motion for class certification and the
16 Defendant's deadline for filing the motion for decertification, such that Defendant's Renewed MSA will
17 be resolved prior to the certification motion deadline.
18 Since Defendant refiised a reasonable request to stipulate to continue this deadline, Plaintiffs
19 were forced to file this motion in order to prevent the waste of judicial and party resources that would
20 result from having the motion for class certification filed before the hearing on Defendant's Renewed
21 MSA. For all these reasons, as detailed more fully below. Plaintiffs respectfiilly request the Court issue
22 an order continuing the April 11, 2019 hearing date on the motions related to class certification to June
23 28, 2019, or a date thereafter convenient for the Court, and setting opening class certification and
24 decertification motion filing deadlines of no earlier than April 12, 2019, opposition deadlines of no
25 earlier than May 17, 2019 and reply filing deadlines of no earlier than June 14, 2019.
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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1 IL FACTUAL HISTORY
2 Plaintiff Spears's action was consolidated with Plaintiff Arana's action on October 11,2017.
3 (Mukherjee Decl. at ]f 3). The plaintiffs have served multiple sets of discovery and have taken the
4 deposition of Defendant's Person Most Knowledgeable for a portion of the classifications in Plaintiff
5 Spears's Notice of Deposition of Defendant. (Id.). The Plaintiffs have met and conferred extensively
6 with Defendant regarding discovery and the Parties have engaged in substantial motion practice. (Id.)
7 The briefing schedule regarding Plaintiffs' Motion for Class Certification and Defendant's Motion for
8 Decertification was continued by the Parties by stipulation in order to prevent requiring Plaintiffs to file
9 motions related to class certification one (1) day after the hearing on Defendant's initial motion for
10 summary adjudication. (Id. at ^ 4). Plaintiffs initially filed a motion to continue the hearing date and
11 briefing schedule. (Id.). Plaintiffs' motion was eventually taken off calendar because Defendant agreed
12 to stipulate to Plaintiffs' requested continuance so that Plaintiffs' motion for class certification could
13 adequately address the Court's raling on the motion for summary adjudication. (Id.). The current
14 briefing schedule was set as follows:
15 The motion for class certification and motion for decertification filing deadline: December
16 14,2018;
17 Any opposition to the opening class certification related motions: Febraary 15, 2019;
18 Any reply in response: March 15, 2019; and
19 Hearing as to the motions related to class certification: April 11, 2019 at 10:00 a.m. (Id.)
20 On October 23, 2018, Judge Kraeger in Department 54 issued a raling granting in part and
21 denying in part Defendant's initial motion for summary adjudication. (Exhibit l'). The intent behind
22 the continuation ofthe class certification motion briefmg schedule was to ensure that Plaintiffs' motion
23 for class certification would be tailored to address Judge Kraeger's raling on the initial motion for
24 summary adjudication.
25 On October 26, 2018, Defendant filed and served a case management conference statement
26 which included a section regarding "dispositive motions." (Exhibit 2). Therein, while Defendant states
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All exhibits are attached to the Declaration of Piya Mukherjee, filed and served herewith.
NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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1 that it is considering whether to appeal theralingon the motion for summary adjudication. Defendant
2 fails to state that it is considering filing a renewed motion for summary adjudication: (Exhibit 2.2:7-14).
3 Thereafter, the Parties appeared before this Court on November 9, 2018 for a case management
4 conference where Defendant, again, did not notify this Court or Plaintiffs that it had any intention of
5 filing a renewed motion for summary adjudication. (Mukherjee Decl., at][ 7). On November 19,2018,
6 without providing any prior notice. Defendant filed the Renewed MSA. (Id. at ^ 8).
7 On November 27, 2018, four (4) business days after Defendant served the renewed MSA,
8 Plaintiffs provided Defendant a draft stipulation to continue the hearing date and briefmg schedule on
9 the motion for class certification such that the scope ofthe claims and the proposed class are consistent
10 with the order on the Renewed MSA, scheduled to be heard on Febraary 4, 2018. (Mukherjee Decl., at
11 9-10). On November 28, 2018, Defendant responded to Plaintiffs and stated that it would not agree
12 to continue the briefing schedule on the motion for class certification necessitating the filing of this
13 motion. (Exhibit 3).
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15 I I I . ARGUMENT
16 A court's determination as to whether class certification is appropriate does not tum on
17 whether the claims asserted are legally or factually meritorious, but it does require an examination of
18 issues involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023
19 (2012). "In particular, whether common or individual questions predominate will often depend upon
20 resolution of issues closely tied to the merits. To assess predominance, a court 'must examine the issues
21 framed by the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (internal
22 citations omitted).
23 A motion for summary adjudication seeks to dispose of an entire cause of action, an
24 affirmative defense, a claim for damages, or an issue of duty because such a motion "contends that the
25 cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no
26 merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages,
27 as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe
28 a duty to the plaintiff or plaintiffs." Cal. Code Civ. Proc. §437c(f)(l).
NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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1 Thus, a decision on a motion for summary adjudication has implications for a motion
2 for class certiTication. See Archer v. United Rentals, Inc., 195 Cal. App. 4th 807,812 (201 l)(reversing
3 an order denying class certification because the court also reversed an aspect of the trial court's order
4 granting the defendant's motion for summary adjudication). A decision either way will impact the
5 definitions ofthe proposed classes and the claims those classes assert. Id. A decision as to the merits of
6 one or more causes of action will alter the analysis required to determine whether common questions
7 predominate because such an analysis requires an investigation as to the resolution of the merits of the
8 case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024.
9 In this class action. Plaintiffs asserts seven causes of action: (1) Failure to Provide Meal
10 Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) Failure to Provide Rest
11 Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, and 1198; (3) Failure to Pay Hourly Wages
12 in violation of Cal. Lab. Code §§ 223,510,1194,1194.2,1197,1197.1, and 1198; (4) Failure to Provide
13 Accurate Written Wage Statements in violation of Cal. Lab. Code § 226(a); (5) Failure to Timely Pay
14 All Final Wages in violation of Cal. Lab. Code §§ 201,202, and 203; (6) Unfair Competition in violation
15 of Cal. Bus. & Prof Code §§ 17200, et seq.; and (7) Violation ofthe Private Attomeys General Act, Cal.
16 Lab. Code §§ 2698, et seq. Several of these causes of action are based, in part, on Defendant's failure
17 to properly calculate Plamtiffs' and Class Members' regular rate of pay, resuhing m a systemic
18 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of the issue
19 ofDefendant's miscalculation of Plaintiff and Class Members' overtime wages.
20 Inralingon whether Defendant failed to include cash in lieu payments in the regular rate, the
21 Court will base itsralingon the facts relevant to this dispute. In so doing, the Court will instract the
22 parties as to those facts that are traly the ones that create a triable issue of fact. Therefore, leaming what
23 those relevant triable issues are is critical for Plaintiffs to argue in the motion for class certification how
24 those triable issues of fact can be adjudicated based on common evidence.
25 When the class certification motion briefing schedule was reset to December 14, 2018,
26 Plaintiffs anticipated that any motions for sununary adjudication would have already beenraledon and
27 that the legal and factual claims would be imderstood. Plaintiffs did not anticipate, and Defendant did
28 not provide any indication, that a second motion for summary adjudication would befiledby Defendant
NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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1 after a raling on the first one. Simultaneous briefmg On the motion for class certification and the
2 Renewed MSA will only lead to unnecessary confusion with respect to the outstanding legal and factual
3 issues. Defendant, by forcing Plaintiffs to file a motion for class certification while the Renewed MSA
4 is pending appears to be seeking a tactical advantage in order to prevent Plaintiffs from setting forth
5 certifiable theories of the case in the motion for class certification based on the Court's forthcoming
6 raling on the Renewed MSA. Because a decision as to Defendant's Renewed MSA has clear implications
7 for Plaintiffs' motion to certify a class based on Defendant's failure to compensate its employees for all
8 overtime hours worked because it failed to include all non-discretionary bonus wages in its calculation
9 of the regular rate. Plaintiffs respectfiilly request that the briefmg schedules associated with the motions
10 related to class certification be continued such that Defendant's Renewed MSA will be resolved prior
11 to the deadline to file the motions related to class certification.
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13 IV. CONCLUSION
14 Plaintiffs respectfiilly request the Court issue an order continuing the April 11,2019 hearing
15 date on the motions related to class certification to June 28,2019, or a date thereafter convenient for the
16 Court, and setting the briefing schedule pursuant to Rule of Court 3.764, which would result in motion
17 filing deadlines of no earlier than April 12,2019. Efficiency and judicial economy require that briefmg
18 for Plaintiffs' motion for class certification and Defendant's motion for decertification be continued.
19 Plaintiffs' requested extension is reasonable in light of the fact that it will allow the motions related to
20 class certification to be filed after aralingon Defendant's dispositive Renewed MSA to ensure that the
21 scope of the claims and proposed class set forth in the motions is consistent with the raling on the
22 Renewed MSA.
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24 DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP
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26 'iya Mukherjee
Counsel for Plaintiff Andrei Speirs
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NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION
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EXHIBIT 2
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DECLARATION OF APARAJIT BHOWMIK
CASE No. 34-2017-00210560
1 TIxMOTHY J. LONG (STATE BAR NO. 137591)
tilong(@orrick.com
2 NICHOLAS J. HORTON (STATE BAR NO. 289417)
nhorton@orrick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP
400 Capitol Mall, Suite 3000
4 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
5 Facsimile: +1 916 329 4900
6 Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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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, DEFENDANT HEALTH NET OF
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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 1 through CERTIFICATION
50, inclusive.
15 Date: December 14,2018
Defendants. Time: 2:00 pm
16 Dept: 35
Judge: Hon. Alan G. Perldns
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Complaint Filed: April 5,2017
18 FAC Filed: June 29,2017
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TOMAS R. ARANA, on behalf of himself, all Complaint Filed: August 1,2017
20 others similarly situated, Consolidated Complaint Filed: Dec. 21,2017
21 PlainUff,
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23 HEALTH NET OF CALIFORNIA, INC, a
Califomia corporation; and DOES 1-50,
24 inclusive.
25 Defendant.
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DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
1 L INTRODUCTION
2 Defendant Health Net of California, Inc. ("HNCA")fileda renewed motion for summary
3 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 HNCA 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. HNCA
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 HNCA's
11 Renewed MSA.
12 Yet now—^weeks after receiving HNCA's Renewed MSA briefing, and just over a week
13 before briefing 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 condnue
15 the hearing and briefing schedule for these motions. This request is meritless. In fact, the
16 resolution ofthe Renewed MSA will not impact tlie 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
13 of the hearing or briefing schedule for the parties' class certification or PAGA-related motions.
19 IL RELEVANT PROCEDURAL BACKGROUND
20 On August 8,2018, tliis Court entered an order setting a December 14th deadline for
21 Plaintiffs tofilea class certification motion. Decl. of Timothy J. Long ISO Def.'s Oppo. to PL's
22 MoL to Continue Hearing Date and Briefing Schedule ("Long Decl."), Dec. 12,2018,12, 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 PAGA action" (the "PAGA Motions") by that
25 same date. Id. This order continued previously set briefing deadlines for these motions. Id. ^ 2.
26 On November 19,2018, HNCAfiledits Renewed MSA, seeking to have the Court
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' The Renewed MSA presents other issues that 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 rate of
2 pay, and t|ius improperly calculated Plaintiffs' overtime pay. Long Decl. "f 3 & Ex. B. HNCA
3 personallyservedtheRenewedMSAonNovember 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. ^\ 6; see also Decl. of Nicholas J. Horton ISO Def.'s Oppo. to
6 PL's Ex Parte Appl. for Order Shortening Time ("Horton Decl."), Dec. 7,2018,17 (cidng
7 Declaration of Piya Mukherjee in Support of Plaintiffs' Motion to Continue Hearing Date and
8 Briefing Schedule Relafing to Class Certification ("Mukherjee Decl."), Dec. 5,2018, Ex. 3). On
9 November 29,2018, HNCA declmed the request for stipulation, as there is no reason the class
10 certification hearing and briefmg cannot proceed in parallel to the Renewed MSA. Long Decl.
11 H 7; Horton Decl. f 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. ^ 10. Spears
14 simultaneously filed an ex parte 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. H 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 I I I . ANALYSIS
25 A. HNCA'S Motion for Sommarv Adiudicarion Is Limited to One Legal Issue.
26 The sole basis for Spears' motion to continue is the Renewed MSA. That motion
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^ HNCA incoiporates by reference its prior briefing on Spears' ex parte application and motion for a continuance,
28 filed on December?, 2018.
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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 with 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 overtime. HNCA contends lhat this cash benefit was properly excluded under what is
5 known as the Health-Benefits Contribution Exception. For the convenience of the Court, a copy
6 of the points and authorities HNCA has submitted in support of the Renewed MSA is attached as
7 Exhibit B to Declaration of Timothy J. Long,filedherewith.
8 HNCA's Renewed MSA seeks adjudication of whether HNCA property excluded a cash
9 benefit paid to Spears by her health planfromthe regular rate when calculating her overtime pay.-'
10 Long Decl. f 3 & Ex, B at 15:1-19:2. Tliis claim does not apply to Arana because he never
11 received this cash benefit. Id H 3, Ex. B at 8:12-17,9:5-21. When HNCAfiledthe Renewed
12 MSA, HNCA 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. Id.%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. Plainfiffs' meal and rest
16 period claims are not at issue in the Renewed MSA. Id.^4& Ex. B.
17 Importantly, after HNCAfiledits Renewed MSA, Arana's counsel stipulated that Arana is
18 not pursuing any claims that HNCA failed to properly calculate the regular rate of pay. 'Long
19 Decl. ^ 8, Ex. C. Specifically, al Arana's deposition, the parties stipulated on the record tliat:
20 There have been a number of claims in the lawsuit having to do
with the proper calculation ofthe regular rate for purposes of
21 calculating overtime, and counsel has stipulated that Mr, Arana is
not making any claims as to any remunerafion that should have
22 been included in the regular rate but wasn't for purposes of
calculating overtime, including but not limited to SPOT awards,
23 ACA incentive payments, wellness payments and cash benefits
provided to Health Net employees.
25 Id. TI 8, Ex. C at 126:14-24. Arana's counsel confirmed this stipulation, stating "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. Ii 3, Ex. B,
-4- .
DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO COMTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
1 diere is a regular rate claim." Id % 8, Ex. C at 126:25-127:3. Thus, with Arana's stipulation, only
2 Spears' cash benefit claim remains to be decided via the Renewed MSA.
3 B. Spears' Cash Benefit Claim Is a Pay 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 HNCA was legally required to include this
7 payment when calculating Spears' regular rate, it was also legally required to include this
8 payment in calculating the regular rate of every odier 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 Kraeger) 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 die Renewed MSA is a pay practices claim, and
14 HNCA's willingness to stipulate to 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.
C. There Should Be No Concerns About One-Way Intervention.
19 At the December 7tii hearing on Spears' ex parte application, the Court questioned
20 whether HNCA's Renewed MSA raised the issue of one-way intervention. ItdoesnoL "One-
21 way intervention" is "a consequence of actions for damages in which a decision for or against one
22 member of the 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 Bank v. Superior Court, 40 Cal. 4th 1069, 1078 (2007) (internal quotation
25 marks omitted). As the Fireside Bank 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
parries would not be bound. A victory by the plaintiff would be
28
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DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
1 certification. Fireside Bank v. Superior Court, 40 Cal. 4th 1069,1078 (2007) (internal quotation
2 marks omitted). As the Fireside Bank court explained, the problem posed by one-way
3 intervention 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 of the class to
intervene and claim the spoils; a loss by the plaintiff would not bind
6 otiier 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 against the named plaintiff and might face
8 additional suits by other members ofUie class, but it could lose
^ against all members of the class.
10 Id. But a defendant's motion for a hearing on the merits prior to the court determining whether
11 tiie case can proceed as a class action does not implicatetiieseconcems. Id. at 1082-83; Rose v.
12 CityofHay\^>ard, 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 theraleagainst one-way intervention does not pose a barrier totiiecourt adjudicatingtiiatmotion.
15 Nor does it affect the briefing on class certification in this case.
i<5 IV. CONCLUSION
17 The Renewed MSA presents only a single legal issuetiiatwill not impact Spears' ability
18 to brief her class certification motion. The Court should therefore deny Spears' motion to
19 continue the hearing date and briefing schedule relating to class certification and the PAGA
20 motions.
21
22 Dated: December 12,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP
23
24 Bv: .^-7 (
CnMOTHYJrtONG
Attomeys for Defendant
HEALTH NET OF CALIFORNIA, INC.
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DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE
HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION
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EXHIBIT 3
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DECLARATION OF APARAJIT BHOWMIK
CASE No. 34-2017-00210560
1 IN THE SACRAMENTO SUPERIOR COURT
2 STATE OF CALIFORNIA, COUNTY OF SACRAMENTO
3 HONORABLE ALAN G. PERKINS JUDGE, DEPARTMENT'35
4 oOo
5
ANDREA SPEARS,
6
Plaintiff,
7 No. 2017-00210560
-vs-
8
HEALTH NET OF CALIFORNIA INC.,
9
Defendant.
10
11
12 REPORTER'S TRANSCRIPT OF PROCEEDINGS
13 oOo
14 FRIDAY, DECEMBER 14, 2018
15 oOo
16
17 APPEARANCES:
18
19 For t h e P l a i n t i f f :
20 BLUMENTHAL NORDREHAUG & BHOWMIK
2255 C a l l e c l a r a
21 San Diego, CA 92037
By: RUCHIRA P. MtJKHERJEE, A t t o r n e y a t Law
22
23 For t h e Defendant:
24 ORRICK HERRINGTON & SUTTCLIFFE, LLP
400 C a p i t o l M a l l , S u i t e 3000
25 Sacramento, CA 95184
By: TIMOTHY J. LONG, A t t o r n e y a t Law
26
27 oOo
28 Tina Tavalero, CSR No. 8923
SACRAMENTO OFFICIAL COURT REPORTERS
1 FRIDAY, DECEMBER 14, 2018
2 oOo
3 The m a t t e r o f ANDREA SPEARS, P l a i n t i f f v s . HEALTH
4 • NET o f CALIFORNIA, INC., Defendant, Number 2017-00210560,
5 came on r e g u l a r l y b e f o r e t h e H o n o r a b l e ALAN G. PERKINS,
6 Judge o f t h e Sacramento S u p e r i o r C o u r t , i n and f o r t h e
7 County o f Sacramento, S t a t e o f C a l i f o r n i a , s i t t i n g i n
8 Department 35.
9 The P l a i n t i f f was r e p r e s e n t e d by RUCHIRA P.
10 MUKHERJEE, A t t o r n e y a t Law.
11 The Defendant was r e p r e s e n t e d by TIMOTHY J. LONG,
12 A t t o r n e i y a t Law.
13 The f o l l o w i n g p r o c e e d i n g s were t h e n had, t o w i t :
14 COURT ATTENDANT: C a l l i n g t h e case o f Spears v e r s u s
15 H e a l t h Net.
16 THE COURT: A l lright. Good a f t e r n o o n . We have
17 counsel i n c o u r t and on t h e phone. W e ' l l t a k e appearances
18 i n court first.
19 MR. LONG: Thank you, your Honor. Good a f t e r n o o n .
20 THE COURT: Good a f t e r n o o n .
21 MR. LONG: I trust t h e Court r e c e i v e d our o p p o s i t i o n
22 tothis motion.
23 THE COURT: Yes. Mr. Long we j u s t need you t o s t a t e
24 your appearance.
25 MR. LONG: I'm s o r r y . Tim Long, f o r H e a l t h Net o f
26 California.
27 THE COURT: A l lright. On t h e phone?
28 MS. MUKHERJEE: Good a f t e r n o o n , your Honor. This i s
SACRAMENTO OFFICIAL COURT REPORTERS 1
1 R u c h i r a Mukherjee on b e h a l f o f t h e p l a i n t i f f .
2 THE COURT: Good a f t e r n o o n . Any d e v e l o p s s i n c e t h e
3 m o t i o n s i n o p p o s i t i o n were f i l e d ?
4 MR. LONG: I have n o t r e c e i v e d any r e p l y . I have
5 not heard from counsel.
6 THE COURT: Okay. Sounds l i k e n o t .
7 Then Ms. Mukherjee, i t ' s your m o t i o n . So you may
8 proceed.
9 MS. MUKHERJEE: I'm s o r r y , your Honor. I t cut out
10 f o r a b r i e f second.
11 THE COURT: I s a i d , yeah, I have r e v i e w e d t h e m o t i o n
12 and t h e o p p o s i t i o n , and so i t ' s your m o t i o n . So you may
13 proceed.
14 MS. MUKHERJEE: Thank you, your Honor. I really
15 d o n ' t have t o o much beyond what was i n t h e m o t i o n a s i d e
16 f r o m j u s t t o r e i t e r a t e t o t h e c o u r t t h a t t h i s was — we're
17 d e a l i n g w i t h d e f e n d a n t ' s second m o t i o n f o r summary
18 judgment, w h i c h t h e y k e p t s e c r e t e s s e n t i a l l y f r o m b o t h t h e
19 C o u r t and p l a i n t i f f , and t h e r e i s r e a l l y no reason f o r a
20 b r i e f continuance o f the motion f o r class certification
21 because c o n t r a r y t o what c o u n s e l f o r d e f e n d a n t has s t a t e d ,
22 t h e i r i s s u e f o r m o t i o n f o r summary judgment i s n o t a l e g a l
23 issue.
24 I t ' s an i n c r e d i b l y f a c t u a l i s s u e , one t h a t required
25 a d e c l a r a t i o n f r o m one o f d e f e n d a n t ' s d e c l a r a n t s , w h i c h i s
26 over 450 pages i n l e n g t h .
27 That i s n o t a l e g a l i s s u e . That i s an i n c r e d i b l y
28 f a c t u a l issue, which t h e Court — which i s e s s e n t i a l l y v e r y
SACRAMENTO OFFICIAL COURT REPORTERS 2
1 s i m i l a r t o t h e l a s t m o t i o n f o r summary judgment, except
2 i t ' s been d r e s s e d up a l i t t l e b i t .
3 And t h i s — i t ' s u n c l e a r why t h e defense i s so'
4 against a b r i e f continuance o f the motion f o r class
5 c e r t i f i c a t i o n b r i e f i n g s c h e d u l e , because a l l a c o n t i n u a n c e
6 w i l l do i s w i l l make e v e r y t h i n g much more o r g a n i z e d such
7 t h a t w e ' l l have a r u l i n g on t h e m o t i o n f o r summary
8 judgment.
9 To t h e e x t e n t some o f i t i s g r a n t e d o r a l l o f i t i s
10 g r a n t e d , t h e n t h a t ' s g o i n g t o have an impact on what t h e
11 c l a s s i s g o i n g t o be.
12 And w i t h r e s p e c t t o t h e i s s u e s f o r t h e m o t i o n f o r
13 class c e r t i f i c a t i o n , t h e m o t i o n we w i l l need t o w r i t e about
14 i t . We w i l l need t o w
Preview
1 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP FiLED/ENDORSED Norman B. Blumenthal (State Bar #068687) 2 Kyle R. Nordrehaug (State Bar #205975) Aparajit Bhowmik (State Bar #248066) MAR 1 5 2019 3 Piya Mukherjee (State Bar #274217) Victoria B. Rivapalacio (State Bar #275115) By:. K, Fav 4 2255 Calle Clara La Jolla, CA 92037 • 5 Telephone: (858)551-1223 Facsimile: (858) 551-1232 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 Case No. 34-2017-002I0560-CU-OE-GDS 13 of herself and on behalf of all persons similarly situated, CLASS ACTION 14 15 Plaintiff, DECLARATION OF APARAJIT BHOWMIK IN SUPPORT OF NOTICE OF DEFENDANT'S 16 NON-COMPLIANCE REGARDING vs. STIPULATION FOR CLASS CERTIFICATION 17 HEALTH NET OF CALIFORNIA, INC., a Califomia Corporation; and Does 1 through 18 50, Inclusive, 19 Defendants. Date: April 11, 2019 Time: 10:00 a.m. 20 Dept.: 35 TOMAS R. ARANA, on behalf of himself, Judge: Hon. Alan G. Perkins 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 California corporation; and DOES 1 through 25 50, inclusive. 26 Defendants. 27 28 DECLARATION OF APARAJIT BHOWMIK CASE No. 34-2017-00210560 1 DECLARATION OF APARAJIT BHOWMIK 2 1, APARAJIT BHOWMIK, declare as follows: 3 1. 1 am an attomey at law duly licensed to practice before all of the courts of the State of 4 Califomia. 1 am a partner with the law firm of Blumenthal Nordrehaug Bhowmik De Blouw LLP, attomeys 5 of record for Plaintiff Andrea Spears. 1 have personal knowledge of the facts set forth herein, and if called 6 as a witness, could and would testify competently thereto. 7 2. A true and correct copy of Plaintiff Spears' Motion to Continue Hearing Date and Briefing 8 Schedule Relating to Class Certification is attached hereto as Exhibit 1. 9 3. A true and correct copy ofDefendant's Opposition to PlaintifPs Motion to Continue Hearing 10 Date and Briefing Schedule Relating to Class Certification is attached hereto as Exhibit 2. 11 4. A true and correct copy of the December 14, 2018 Reporter's Transcript of Proceedings 12 regarding the Motion to Continue Hearing Date and Briefing Schedule Relating to Class 13 Certification is attached here to as Exhibit 3. 14 5. A true and correct copy of an email chain between counsel for Plaintiff and counsel for 15 Defendant is attached hereto as Exhibit 4. 16 6. A true and correct copy of the Stipulation regarding Class Certification sent by counsel for 17 Plaintiff to counsel for Defendant is attached hereto as Exhibit 5. 18 19 I declare under penalty of perjury under the laws of the State of California and the United States that 20 the foregoing is true and correct. Executed at La Jolla, California on March 14, 2019. 21 22 23 ^ ' ^ ~ 'A.J. Bhowmik 24 25 26 27 28 DECLARATION OF APARAJIT BHOWMIK CASE No. 34-2017-00210560 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 EXHIBIT 1 24 25 26 27 28 DECLARATION OF APARAJIT BHOWMIK CASE No. 34-2017-00210560 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) 3 Piya Mukherjee (State Bar #274217) 2255 Calle Clara 4 La Jolla, CA 92037 Telephone: (858)551-1223 5 Facsimile: (858) 551-1232 6 Attomeys for Plaintiff Andrea Spears 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF SACRAMENTO 10 11 ANDREA SPEARS, an individual, on behalf CASE No. 34-2017-00210560-CU-OE-GDS of herself and on behalf of all persons 12 similarly situated. Plaintiff, 13 CLASS ACTION 14 PLAINTIFF ANDREA SPEARS'S NOTICE HEALTH NET OF CALIFORNIA, INC., a OF MOTION AND MOTION TO 15 Califomia Corporation; and Does 1 through CONTINUE HEARING DATE AND 50, inclusive. BRIEFING SCHEDULE RELATING TO 16 Defendants. CLASS CERTIFICATION; 17 TOMAS R. ARANA, on behalf of himself, all MEMORANDUM OF POINTS AND others similarly situated. AUTHORITIES IN SUPPORT 18 Plaintiff, V. 19 Hearing Date: TBD HEALTH NET OF CALIFORNLA., INC., a Hearing Time: TBD 20 Califomia corporation; and DOES 1-50, Judge: Hon. Alan G. Perkins inclusive. Dept.: 35 21 Defendant. 22 Action Filed: April 5, 2017 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 1 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE THAT on a date and time to be determined by the Court, Plaintiff ,3 Andrea Spears will and hereby does move for an order continuing the December 14,2018 deadline for 4 filing Plaintiffs' opening brief for class certification and Defendant's motion for decertification, briefmg 5 schedules and the associated April 11, 2019 hearing date. This motion will be heard before the 6 Honorable Alan G. Perkins, Judge ofthe Superior Court ofthe County of Sacramento. 7 This motion is brought on the grounds that good cause exists to enter the order as on 8 November 19,2018, Defendantfileda Renewed Motion for Summary Adjudication (" Renewed MSA") 9 without providing prior notice to both Plaintiffs and the Court, and unilaterally set the hearing date for 10 the Renewed MSA on Febraary 4, 2019. Because the outcome ofDefendant's Renewed MSA will 11 affect how Plaintiffs will present the common predominance theories of liability in Plaintiffs' upcoming 12 motion for class certification as well as Plaintiffs' opposition to Defendaiit's forthcoming motion for 13 decertification, the interests of efficiency require that the briefing schedules for the motion for class 14 certification and motion for decertification be continued. Plaintiffs are, therefore, requesting the briefing 15 schedule continued such that the hearing on the class certification and decertification motions is on June 16 28, 2019, or a date thereafter convenient for the Court. This request, if granted, would move the filing 17 date of the motions from December 14, 2018 to no earlier than April 12, 2018, providing Plaintiffs a 18 sufficient amount of time to draft the motion based on the outcome ofDefendant's Renewed MSA. 19 Counsel has made a reasonable and good faith effort to informally resolve the issues presented 20 by this motion. Defendant has um-easonably refused to cooperate in continuing the class certification 21 motion briefing schedule and hearing date. The motion will be based upon this notice, the memorandum 22 of points and authorities, the declaration of Piya Mukherjee and exhibits thereto, along with the papers 23 in the Court record and the oral argument at the hearing. 24 /// 25 /// 26 /// 27 /// 28 /// NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 1 Pursuant to Local Rule 1.06(A), the court will make a tentative ruling on the merits of 2 this matter by 2:00 p.m., the court day before the hearing. The hearing date on this motion shall 3 be set by the Court. The complete text of the tentative rulings for the department may be 4 downloaded off the court's website. If the party does not have online access, they may call the 5 dedicated phone number for the department as referenced in the local telephone directory between 6 the hours of 2:00 p.m. and 4:00 p.m. on the court day before the hearing and receive the tentative 7 ruling. If you do not call the court and opposing party on the court day before the hearing, no 8 hearing will be held. 9 DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW, LLP 10 11 By: Piya *iya Muk Mukherjee 12 •""Attomeys for Plaintiff AnSrea Spears 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs hereby moves for an Order continuing the December 14, 2018 deadline for filing 4 Plaintiffs' opening brief for class certification and Defendant's decertification motion to no earlier than 5 April 12,2019, which would result in approximately a four (4) month continuance of the filing deadline. 6 This requested continuance would also result in only a less than two (2) month continuance to the April 7 I I , 2019 hearing date. 8 The continuance is required because Defendant Health Net of Califomia, Inc. ("Defendant") 9 filed a Renewed Motion for Summary Adjudication ("Renewed MSA") on November 19, 2018 to be 10 heard on Febraary 4, 2019 which would result in Plaintiffs needing to file the motion for class 11 certification well before aralingon the Renewed MSA. Given that the result ofthe Renewed MSA could 12 affect the claims Plaintiffs may seek to certify and the way Plaintiffs may present the theory of liability, 13 a continuance is needed so the motion for class certification and opposition to the decertification motion 14 can rely on the Renewed MSA raling. 15 Defendant has previously filed a motion for summary adjudication which was set to be heard 16 the day before Plaintiffs' deadline to file a motion for class certification on September 28, 2018. After 17 forcing Plaintiffs to file a motion to continue the class certification motion hearing date and briefmg 18 schedule. Defendantfinallystipulated to a continuance of the class certification motion filing deadline, 19 hearing date and briefmg schedule until after the hearing on the motion for summary adjudication. 20 After the Court raled to grant in part and deny in part Defendant's motion for summary 21 adjudication, the Parties appeared before Judge Perkins in Department 35 for a case management 22 conference on November 9, 2018 where Defendant did not at any point state at the hearing that 23 Defendant had any intention to file a second motion for summary adjudication. Defendant's case 24 management conference statement, also, failed to express Defendant's intent to file a renewed motion 25 for summary adjudication. Rather, ten (10) days after the case management conference. Defendant blind- 26 sided Plaintiffs and the Court with the filing ofthe Renewed MSA. 27 Plaintiffs have been diligent in prosecuting this matter against Defendant, serving and 28 responding to discovery, taking the deposition ofDefendant's Person Most Knowledgeable ("PMK"), NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -1- 1 engaging in significant motion practice, including, successfully opposing Defendant's initial motion for 2 summary adjudication. (Declaration of Piya Mukherjee 3 ("Mukherjee Decl.")). 3 In this class action. Plaintiffs assert causes of action based at least in part on Defendant's 4 failure to properly calculate Plaintiffs' and Class Members' regular rate, which results in a systemic 5 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of this issue 6 as to Defendant's miscalculation of Plaintiffs and Class Members' regular rate and corresponding failure 7 to compensate Plaintiffs and Class Members for all their overtime hours worked. Plaintiffs oppose 8 Defendant's Renewed MSA and will continue to seek redress on behalf of a class of employees who 9 were subject to this practice and who worked overtime. Plaintiffs will seek to certify a class based on 10 these allegations. To the extent Defendant's Renewed MSA is granted in any maimer, it will have clear 11 implications for Plaintiffs' motion to certify a class based on the claims at issue. Because the Febraary 12 4,2019 hearing regarding Defendant's failure to compensate its employees for all overtime hours worked 13 by failing to include all non-discretionary bonus wages in its calculation of the regular rate and the 14 subsequent order will impact Plaintiffs' motion for class certification, currently due for on December 14, 15 2018, Plaintiffs seek a continuance to the deadline for filing the motion for class certification and the 16 Defendant's deadline for filing the motion for decertification, such that Defendant's Renewed MSA will 17 be resolved prior to the certification motion deadline. 18 Since Defendant refiised a reasonable request to stipulate to continue this deadline, Plaintiffs 19 were forced to file this motion in order to prevent the waste of judicial and party resources that would 20 result from having the motion for class certification filed before the hearing on Defendant's Renewed 21 MSA. For all these reasons, as detailed more fully below. Plaintiffs respectfiilly request the Court issue 22 an order continuing the April 11, 2019 hearing date on the motions related to class certification to June 23 28, 2019, or a date thereafter convenient for the Court, and setting opening class certification and 24 decertification motion filing deadlines of no earlier than April 12, 2019, opposition deadlines of no 25 earlier than May 17, 2019 and reply filing deadlines of no earlier than June 14, 2019. 26 27 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -2- 1 IL FACTUAL HISTORY 2 Plaintiff Spears's action was consolidated with Plaintiff Arana's action on October 11,2017. 3 (Mukherjee Decl. at ]f 3). The plaintiffs have served multiple sets of discovery and have taken the 4 deposition of Defendant's Person Most Knowledgeable for a portion of the classifications in Plaintiff 5 Spears's Notice of Deposition of Defendant. (Id.). The Plaintiffs have met and conferred extensively 6 with Defendant regarding discovery and the Parties have engaged in substantial motion practice. (Id.) 7 The briefing schedule regarding Plaintiffs' Motion for Class Certification and Defendant's Motion for 8 Decertification was continued by the Parties by stipulation in order to prevent requiring Plaintiffs to file 9 motions related to class certification one (1) day after the hearing on Defendant's initial motion for 10 summary adjudication. (Id. at ^ 4). Plaintiffs initially filed a motion to continue the hearing date and 11 briefing schedule. (Id.). Plaintiffs' motion was eventually taken off calendar because Defendant agreed 12 to stipulate to Plaintiffs' requested continuance so that Plaintiffs' motion for class certification could 13 adequately address the Court's raling on the motion for summary adjudication. (Id.). The current 14 briefing schedule was set as follows: 15 The motion for class certification and motion for decertification filing deadline: December 16 14,2018; 17 Any opposition to the opening class certification related motions: Febraary 15, 2019; 18 Any reply in response: March 15, 2019; and 19 Hearing as to the motions related to class certification: April 11, 2019 at 10:00 a.m. (Id.) 20 On October 23, 2018, Judge Kraeger in Department 54 issued a raling granting in part and 21 denying in part Defendant's initial motion for summary adjudication. (Exhibit l'). The intent behind 22 the continuation ofthe class certification motion briefmg schedule was to ensure that Plaintiffs' motion 23 for class certification would be tailored to address Judge Kraeger's raling on the initial motion for 24 summary adjudication. 25 On October 26, 2018, Defendant filed and served a case management conference statement 26 which included a section regarding "dispositive motions." (Exhibit 2). Therein, while Defendant states 27 28 1 All exhibits are attached to the Declaration of Piya Mukherjee, filed and served herewith. NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -3- 1 that it is considering whether to appeal theralingon the motion for summary adjudication. Defendant 2 fails to state that it is considering filing a renewed motion for summary adjudication: (Exhibit 2.2:7-14). 3 Thereafter, the Parties appeared before this Court on November 9, 2018 for a case management 4 conference where Defendant, again, did not notify this Court or Plaintiffs that it had any intention of 5 filing a renewed motion for summary adjudication. (Mukherjee Decl., at][ 7). On November 19,2018, 6 without providing any prior notice. Defendant filed the Renewed MSA. (Id. at ^ 8). 7 On November 27, 2018, four (4) business days after Defendant served the renewed MSA, 8 Plaintiffs provided Defendant a draft stipulation to continue the hearing date and briefmg schedule on 9 the motion for class certification such that the scope ofthe claims and the proposed class are consistent 10 with the order on the Renewed MSA, scheduled to be heard on Febraary 4, 2018. (Mukherjee Decl., at 11 9-10). On November 28, 2018, Defendant responded to Plaintiffs and stated that it would not agree 12 to continue the briefing schedule on the motion for class certification necessitating the filing of this 13 motion. (Exhibit 3). 14 15 I I I . ARGUMENT 16 A court's determination as to whether class certification is appropriate does not tum on 17 whether the claims asserted are legally or factually meritorious, but it does require an examination of 18 issues involving the merits of the case. Brinker Rest. Corp. v. Superior Court, 53 Cal. 4th 1004, 1023 19 (2012). "In particular, whether common or individual questions predominate will often depend upon 20 resolution of issues closely tied to the merits. To assess predominance, a court 'must examine the issues 21 framed by the pleadings and the law applicable to the causes of action alleged.'" Id. at 1024 (internal 22 citations omitted). 23 A motion for summary adjudication seeks to dispose of an entire cause of action, an 24 affirmative defense, a claim for damages, or an issue of duty because such a motion "contends that the 25 cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no 26 merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, 27 as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe 28 a duty to the plaintiff or plaintiffs." Cal. Code Civ. Proc. §437c(f)(l). NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -4- 1 Thus, a decision on a motion for summary adjudication has implications for a motion 2 for class certiTication. See Archer v. United Rentals, Inc., 195 Cal. App. 4th 807,812 (201 l)(reversing 3 an order denying class certification because the court also reversed an aspect of the trial court's order 4 granting the defendant's motion for summary adjudication). A decision either way will impact the 5 definitions ofthe proposed classes and the claims those classes assert. Id. A decision as to the merits of 6 one or more causes of action will alter the analysis required to determine whether common questions 7 predominate because such an analysis requires an investigation as to the resolution of the merits of the 8 case. Brinker Rest. Corp, 53 Cal. 4th 1004, 1024. 9 In this class action. Plaintiffs asserts seven causes of action: (1) Failure to Provide Meal 10 Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, 512, and 1198; (2) Failure to Provide Rest 11 Periods in violation of Cal. Lab. Code §§ 204, 223, 226.7, and 1198; (3) Failure to Pay Hourly Wages 12 in violation of Cal. Lab. Code §§ 223,510,1194,1194.2,1197,1197.1, and 1198; (4) Failure to Provide 13 Accurate Written Wage Statements in violation of Cal. Lab. Code § 226(a); (5) Failure to Timely Pay 14 All Final Wages in violation of Cal. Lab. Code §§ 201,202, and 203; (6) Unfair Competition in violation 15 of Cal. Bus. & Prof Code §§ 17200, et seq.; and (7) Violation ofthe Private Attomeys General Act, Cal. 16 Lab. Code §§ 2698, et seq. Several of these causes of action are based, in part, on Defendant's failure 17 to properly calculate Plamtiffs' and Class Members' regular rate of pay, resuhing m a systemic 18 underpayment of wages to these employees. Defendant's Renewed MSA seeks to dispose of the issue 19 ofDefendant's miscalculation of Plaintiff and Class Members' overtime wages. 20 Inralingon whether Defendant failed to include cash in lieu payments in the regular rate, the 21 Court will base itsralingon the facts relevant to this dispute. In so doing, the Court will instract the 22 parties as to those facts that are traly the ones that create a triable issue of fact. Therefore, leaming what 23 those relevant triable issues are is critical for Plaintiffs to argue in the motion for class certification how 24 those triable issues of fact can be adjudicated based on common evidence. 25 When the class certification motion briefing schedule was reset to December 14, 2018, 26 Plaintiffs anticipated that any motions for sununary adjudication would have already beenraledon and 27 that the legal and factual claims would be imderstood. Plaintiffs did not anticipate, and Defendant did 28 not provide any indication, that a second motion for summary adjudication would befiledby Defendant NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -5- 1 after a raling on the first one. Simultaneous briefmg On the motion for class certification and the 2 Renewed MSA will only lead to unnecessary confusion with respect to the outstanding legal and factual 3 issues. Defendant, by forcing Plaintiffs to file a motion for class certification while the Renewed MSA 4 is pending appears to be seeking a tactical advantage in order to prevent Plaintiffs from setting forth 5 certifiable theories of the case in the motion for class certification based on the Court's forthcoming 6 raling on the Renewed MSA. Because a decision as to Defendant's Renewed MSA has clear implications 7 for Plaintiffs' motion to certify a class based on Defendant's failure to compensate its employees for all 8 overtime hours worked because it failed to include all non-discretionary bonus wages in its calculation 9 of the regular rate. Plaintiffs respectfiilly request that the briefmg schedules associated with the motions 10 related to class certification be continued such that Defendant's Renewed MSA will be resolved prior 11 to the deadline to file the motions related to class certification. 12 13 IV. CONCLUSION 14 Plaintiffs respectfiilly request the Court issue an order continuing the April 11,2019 hearing 15 date on the motions related to class certification to June 28,2019, or a date thereafter convenient for the 16 Court, and setting the briefing schedule pursuant to Rule of Court 3.764, which would result in motion 17 filing deadlines of no earlier than April 12,2019. Efficiency and judicial economy require that briefmg 18 for Plaintiffs' motion for class certification and Defendant's motion for decertification be continued. 19 Plaintiffs' requested extension is reasonable in light of the fact that it will allow the motions related to 20 class certification to be filed after aralingon Defendant's dispositive Renewed MSA to ensure that the 21 scope of the claims and proposed class set forth in the motions is consistent with the raling on the 22 Renewed MSA. 23 24 DATED: December 5,2018 BLUMENTHAL NORDREHAUG BHOWMIK DE BLOUW LLP 25 26 'iya Mukherjee Counsel for Plaintiff Andrei Speirs 27 28 NOTICE OF MOTION AND MOTION TO CONTINUE CLASS CERTIFICATION CASE No. 34-2017-00210560 -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 EXHIBIT 2 24 25 26 27 28 DECLARATION OF APARAJIT BHOWMIK CASE No. 34-2017-00210560 1 TIxMOTHY J. LONG (STATE BAR NO. 137591) tilong(@orrick.com 2 NICHOLAS J. HORTON (STATE BAR NO. 289417) nhorton@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 400 Capitol Mall, Suite 3000 4 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 5 Facsimile: +1 916 329 4900 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 persons CU-OE-GDS 11 similarly situated. Plaintiff, DEFENDANT HEALTH NET OF 12 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 1 through CERTIFICATION 50, inclusive. 15 Date: December 14,2018 Defendants. Time: 2:00 pm 16 Dept: 35 Judge: Hon. Alan G. Perldns 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 PlainUff, 22 23 HEALTH NET OF CALIFORNIA, INC, a Califomia 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 1 L INTRODUCTION 2 Defendant Health Net of California, Inc. ("HNCA")fileda renewed motion for summary 3 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 HNCA 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. HNCA 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 HNCA's 11 Renewed MSA. 12 Yet now—^weeks after receiving HNCA's Renewed MSA briefing, and just over a week 13 before briefing 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 condnue 15 the hearing and briefing schedule for these motions. This request is meritless. In fact, the 16 resolution ofthe Renewed MSA will not impact tlie 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 13 of the hearing or briefing schedule for the parties' class certification or PAGA-related motions. 19 IL RELEVANT PROCEDURAL BACKGROUND 20 On August 8,2018, tliis Court entered an order setting a December 14th deadline for 21 Plaintiffs tofilea class certification motion. Decl. of Timothy J. Long ISO Def.'s Oppo. to PL's 22 MoL to Continue Hearing Date and Briefing Schedule ("Long Decl."), Dec. 12,2018,12, 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 PAGA action" (the "PAGA Motions") by that 25 same date. Id. This order continued previously set briefing deadlines for these motions. Id. ^ 2. 26 On November 19,2018, HNCAfiledits Renewed MSA, seeking to have the Court 27 — ' The Renewed MSA presents other issues that 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 rate of 2 pay, and t|ius improperly calculated Plaintiffs' overtime pay. Long Decl. "f 3 & Ex. B. HNCA 3 personallyservedtheRenewedMSAonNovember 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. ^\ 6; see also Decl. of Nicholas J. Horton ISO Def.'s Oppo. to 6 PL's Ex Parte Appl. for Order Shortening Time ("Horton Decl."), Dec. 7,2018,17 (cidng 7 Declaration of Piya Mukherjee in Support of Plaintiffs' Motion to Continue Hearing Date and 8 Briefing Schedule Relafing to Class Certification ("Mukherjee Decl."), Dec. 5,2018, Ex. 3). On 9 November 29,2018, HNCA declmed the request for stipulation, as there is no reason the class 10 certification hearing and briefmg cannot proceed in parallel to the Renewed MSA. Long Decl. 11 H 7; Horton Decl. f 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. ^ 10. Spears 14 simultaneously filed an ex parte 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. H 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 I I I . ANALYSIS 25 A. HNCA'S Motion for Sommarv Adiudicarion Is Limited to One Legal Issue. 26 The sole basis for Spears' motion to continue is the Renewed MSA. That motion 27 '. ^ HNCA incoiporates by reference its prior briefing on Spears' ex parte application and motion for a continuance, 28 filed on December?, 2018. -3j 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 with 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 overtime. HNCA contends lhat this cash benefit was properly excluded under what is 5 known as the Health-Benefits Contribution Exception. For the convenience of the Court, a copy 6 of the points and authorities HNCA has submitted in support of the Renewed MSA is attached as 7 Exhibit B to Declaration of Timothy J. Long,filedherewith. 8 HNCA's Renewed MSA seeks adjudication of whether HNCA property excluded a cash 9 benefit paid to Spears by her health planfromthe regular rate when calculating her overtime pay.-' 10 Long Decl. f 3 & Ex, B at 15:1-19:2. Tliis claim does not apply to Arana because he never 11 received this cash benefit. Id H 3, Ex. B at 8:12-17,9:5-21. When HNCAfiledthe Renewed 12 MSA, HNCA 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. Id.%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. Plainfiffs' meal and rest 16 period claims are not at issue in the Renewed MSA. Id.^4& Ex. B. 17 Importantly, after HNCAfiledits Renewed MSA, Arana's counsel stipulated that Arana is 18 not pursuing any claims that HNCA failed to properly calculate the regular rate of pay. 'Long 19 Decl. ^ 8, Ex. C. Specifically, al Arana's deposition, the parties stipulated on the record tliat: 20 There have been a number of claims in the lawsuit having to do with the proper calculation ofthe regular rate for purposes of 21 calculating overtime, and counsel has stipulated that Mr, Arana is not making any claims as to any remunerafion that should have 22 been included in the regular rate but wasn't for purposes of calculating overtime, including but not limited to SPOT awards, 23 ACA incentive payments, wellness payments and cash benefits provided to Health Net employees. 25 Id. TI 8, Ex. C at 126:14-24. Arana's counsel confirmed this stipulation, stating "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. Ii 3, Ex. B, -4- . DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO COMTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 1 diere is a regular rate claim." Id % 8, Ex. C at 126:25-127:3. Thus, with Arana's stipulation, only 2 Spears' cash benefit claim remains to be decided via the Renewed MSA. 3 B. Spears' Cash Benefit Claim Is a Pay 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 HNCA was legally required to include this 7 payment when calculating Spears' regular rate, it was also legally required to include this 8 payment in calculating the regular rate of every odier 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 Kraeger) 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 die Renewed MSA is a pay practices claim, and 14 HNCA's willingness to stipulate to 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. C. There Should Be No Concerns About One-Way Intervention. 19 At the December 7tii hearing on Spears' ex parte application, the Court questioned 20 whether HNCA's Renewed MSA raised the issue of one-way intervention. ItdoesnoL "One- 21 way intervention" is "a consequence of actions for damages in which a decision for or against one 22 member of the 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 Bank v. Superior Court, 40 Cal. 4th 1069, 1078 (2007) (internal quotation 25 marks omitted). As the Fireside Bank 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 parries 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 1 certification. Fireside Bank v. Superior Court, 40 Cal. 4th 1069,1078 (2007) (internal quotation 2 marks omitted). As the Fireside Bank court explained, the problem posed by one-way 3 intervention 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 of the class to intervene and claim the spoils; a loss by the plaintiff would not bind 6 otiier 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 against the named plaintiff and might face 8 additional suits by other members ofUie class, but it could lose ^ against all members of the class. 10 Id. But a defendant's motion for a hearing on the merits prior to the court determining whether 11 tiie case can proceed as a class action does not implicatetiieseconcems. Id. at 1082-83; Rose v. 12 CityofHay\^>ard, 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 theraleagainst one-way intervention does not pose a barrier totiiecourt adjudicatingtiiatmotion. 15 Nor does it affect the briefing on class certification in this case. i<5 IV. CONCLUSION 17 The Renewed MSA presents only a single legal issuetiiatwill not impact Spears' ability 18 to brief her class certification motion. The Court should therefore deny Spears' motion to 19 continue the hearing date and briefing schedule relating to class certification and the PAGA 20 motions. 21 22 Dated: December 12,2018 ORRICK, HERRINGTON & SUTCLIFFE LLP 23 24 Bv: .^-7 ( CnMOTHYJrtONG Attomeys for Defendant HEALTH NET OF CALIFORNIA, INC. 26 27 28 DEFENDANT HEALTH NET OF CALIFORNIA, INC.'S OPPOSITION TO MOTION TO CONTINUE HEARING DATE AND BRIEFING SCHEDULE RELATING TO CLASS CERTIFICATION 4154-603M721.2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 EXHIBIT 3 24 25 26 27 28 DECLARATION OF APARAJIT BHOWMIK CASE No. 34-2017-00210560 1 IN THE SACRAMENTO SUPERIOR COURT 2 STATE OF CALIFORNIA, COUNTY OF SACRAMENTO 3 HONORABLE ALAN G. PERKINS JUDGE, DEPARTMENT'35 4 oOo 5 ANDREA SPEARS, 6 Plaintiff, 7 No. 2017-00210560 -vs- 8 HEALTH NET OF CALIFORNIA INC., 9 Defendant. 10 11 12 REPORTER'S TRANSCRIPT OF PROCEEDINGS 13 oOo 14 FRIDAY, DECEMBER 14, 2018 15 oOo 16 17 APPEARANCES: 18 19 For t h e P l a i n t i f f : 20 BLUMENTHAL NORDREHAUG & BHOWMIK 2255 C a l l e c l a r a 21 San Diego, CA 92037 By: RUCHIRA P. MtJKHERJEE, A t t o r n e y a t Law 22 23 For t h e Defendant: 24 ORRICK HERRINGTON & SUTTCLIFFE, LLP 400 C a p i t o l M a l l , S u i t e 3000 25 Sacramento, CA 95184 By: TIMOTHY J. LONG, A t t o r n e y a t Law 26 27 oOo 28 Tina Tavalero, CSR No. 8923 SACRAMENTO OFFICIAL COURT REPORTERS 1 FRIDAY, DECEMBER 14, 2018 2 oOo 3 The m a t t e r o f ANDREA SPEARS, P l a i n t i f f v s . HEALTH 4 • NET o f CALIFORNIA, INC., Defendant, Number 2017-00210560, 5 came on r e g u l a r l y b e f o r e t h e H o n o r a b l e ALAN G. PERKINS, 6 Judge o f t h e Sacramento S u p e r i o r C o u r t , i n and f o r t h e 7 County o f Sacramento, S t a t e o f C a l i f o r n i a , s i t t i n g i n 8 Department 35. 9 The P l a i n t i f f was r e p r e s e n t e d by RUCHIRA P. 10 MUKHERJEE, A t t o r n e y a t Law. 11 The Defendant was r e p r e s e n t e d by TIMOTHY J. LONG, 12 A t t o r n e i y a t Law. 13 The f o l l o w i n g p r o c e e d i n g s were t h e n had, t o w i t : 14 COURT ATTENDANT: C a l l i n g t h e case o f Spears v e r s u s 15 H e a l t h Net. 16 THE COURT: A l lright. Good a f t e r n o o n . We have 17 counsel i n c o u r t and on t h e phone. W e ' l l t a k e appearances 18 i n court first. 19 MR. LONG: Thank you, your Honor. Good a f t e r n o o n . 20 THE COURT: Good a f t e r n o o n . 21 MR. LONG: I trust t h e Court r e c e i v e d our o p p o s i t i o n 22 tothis motion. 23 THE COURT: Yes. Mr. Long we j u s t need you t o s t a t e 24 your appearance. 25 MR. LONG: I'm s o r r y . Tim Long, f o r H e a l t h Net o f 26 California. 27 THE COURT: A l lright. On t h e phone? 28 MS. MUKHERJEE: Good a f t e r n o o n , your Honor. This i s SACRAMENTO OFFICIAL COURT REPORTERS 1 1 R u c h i r a Mukherjee on b e h a l f o f t h e p l a i n t i f f . 2 THE COURT: Good a f t e r n o o n . Any d e v e l o p s s i n c e t h e 3 m o t i o n s i n o p p o s i t i o n were f i l e d ? 4 MR. LONG: I have n o t r e c e i v e d any r e p l y . I have 5 not heard from counsel. 6 THE COURT: Okay. Sounds l i k e n o t . 7 Then Ms. Mukherjee, i t ' s your m o t i o n . So you may 8 proceed. 9 MS. MUKHERJEE: I'm s o r r y , your Honor. I t cut out 10 f o r a b r i e f second. 11 THE COURT: I s a i d , yeah, I have r e v i e w e d t h e m o t i o n 12 and t h e o p p o s i t i o n , and so i t ' s your m o t i o n . So you may 13 proceed. 14 MS. MUKHERJEE: Thank you, your Honor. I really 15 d o n ' t have t o o much beyond what was i n t h e m o t i o n a s i d e 16 f r o m j u s t t o r e i t e r a t e t o t h e c o u r t t h a t t h i s was — we're 17 d e a l i n g w i t h d e f e n d a n t ' s second m o t i o n f o r summary 18 judgment, w h i c h t h e y k e p t s e c r e t e s s e n t i a l l y f r o m b o t h t h e 19 C o u r t and p l a i n t i f f , and t h e r e i s r e a l l y no reason f o r a 20 b r i e f continuance o f the motion f o r class certification 21 because c o n t r a r y t o what c o u n s e l f o r d e f e n d a n t has s t a t e d , 22 t h e i r i s s u e f o r m o t i o n f o r summary judgment i s n o t a l e g a l 23 issue. 24 I t ' s an i n c r e d i b l y f a c t u a l i s s u e , one t h a t required 25 a d e c l a r a t i o n f r o m one o f d e f e n d a n t ' s d e c l a r a n t s , w h i c h i s 26 over 450 pages i n l e n g t h . 27 That i s n o t a l e g a l i s s u e . That i s an i n c r e d i b l y 28 f a c t u a l issue, which t h e Court — which i s e s s e n t i a l l y v e r y SACRAMENTO OFFICIAL COURT REPORTERS 2 1 s i m i l a r t o t h e l a s t m o t i o n f o r summary judgment, except 2 i t ' s been d r e s s e d up a l i t t l e b i t . 3 And t h i s — i t ' s u n c l e a r why t h e defense i s so' 4 against a b r i e f continuance o f the motion f o r class 5 c e r t i f i c a t i o n b r i e f i n g s c h e d u l e , because a l l a c o n t i n u a n c e 6 w i l l do i s w i l l make e v e r y t h i n g much more o r g a n i z e d such 7 t h a t w e ' l l have a r u l i n g on t h e m o t i o n f o r summary 8 judgment. 9 To t h e e x t e n t some o f i t i s g r a n t e d o r a l l o f i t i s 10 g r a n t e d , t h e n t h a t ' s g o i n g t o have an impact on what t h e 11 c l a s s i s g o i n g t o be. 12 And w i t h r e s p e c t t o t h e i s s u e s f o r t h e m o t i o n f o r 13 class c e r t i f i c a t i o n , t h e m o t i o n we w i l l need t o w r i t e about 14 i t . We w i l l need t o w