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1 TIMOTHY J. LONG (STATE BAR NO. 137591)
tjlong@orrick.com
mm
2 ORRICK, HERRINGTON & SUTCLIFFE LLP '20iaHAR2O P' M 2: 03
400 Capitol Mall, Suite 3000
3 Sacramento, CA 95814-4497
Telephone: +1 916 447 8299
4 Facsimile: +1 916 329 4900
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@orrick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
7 Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
9 Attomeys for Defendant
HEALTH NET OF CALIFORNL\, INC.
10
II SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
15 Plaintiff, DECLARATION OF STEPHANIE GAIL
L E E IN SUPPORT OF DEFENDANT
16 HEALTH NET OF CALIFORNIA,
INC.'S REPLY TO ITS MOTION FOR
17 HEALTH NET OF CALIFORNIA, INC., a MONETARY SANCTIONS
Califomia Corporation; and Does 1 through 50,
18 inclusive, Date: March 27, 2018
Time: 9:00 a.m.
19 Defendarits. Dept: 54
20 Complaint Filed: April 5, 2017
FAC Filed: June 29, 2017
21 Consolidated Complaint Filed: Dec. 21, 2017
eg 22 TOMAS R. ARANA, on behalf of himself, all
others similarly situated, Complaint Filed: August 1, 2017
< 23
z 24
Plaintiff,
g .25
HEALTH NET OF CALIFORNIA, INC., a
26 Califomia corporation; and DOES 1-50,
o 27
inclusive,
Defendant.
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF HEALTH NET'S REPLY TO ITS MOTION FOR
MONETARY SANCTIONS
1 I, Stephanie Gail Lee, hereby declare as follows:
2 1. I am an attomey duly admitted to practice before the courts of the State of
3 Califomia and am an associate in the law firm of Orrick, Herrington & Sutcliffe LLP, attomeys of
4 record for Defendant Health Net of Califomia, Inc. ("Health Net"). I make this declaration on
5 personal knowledge and, if swom as a witness, could competently testify to the following facts
6 except where otherwise indicated.
7 Health Net's Motion to Sequence Discovery
8 2. On March 9, 2018, Judge Perkins denied Health Net's Motion to Sequence
9 Discovery without prejudice "to seek similar specific relief by appropriate discovery motion
10 directed to the law and motion department " Attached hereto as Exhibit A is a tme and
11 correct copy of Judge Perkins'March 9, 2018 Order.
12 3. After Judge Perkins' Order was issued and before Health Net filed its Motion to
13 Sequence Discovery in this Department, I met and conferred with Plaintiffs' counsel and
14 specifically invited Victoria Rivapalacio, counsel for Plaintiff Andrea Spears, to present her
15 proposals to resolve or narrow the issues in dispute. Those efforts were unsuccessfijl. Attached
16 hereto as Exhibit B is a tme and correct copy of my March 9, 2018 e-mail exchange with Ms.
17 Rivapalacio.
18 4. Plaintiff Tomas Arana did not oppose Health Net's Motion to Sequence Discovery
19 when it was pending before Judge Perkins.
20 Health Net's Motion for Summary Adjudication
21 5. On November 27, 2017, Health Net filed its Case Management Conference
22 ("CMC") Statement wherein Health Net informed Judge Perkins and Plaintiffs that it intended to
23 file its Motion for Summary Adjudication ("MSA") attacking Plaintiffs' regular rate and roxmding
24 claims. Attached hereto as Exhibit C is a tme and correct copy of Health Net's November 27,
25 2017, CMC Statement, without the attachments.
26 6. Health Net filed its MSA on Febmary 8, 2018. To date, neither Plaintiff has
27 propounded written discovery relating to Health Net's additional evidence submitted in support of
28
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF HEALTH NET'S REPLY TO ITS MOTION FOR
MONETARY SANCTIONS
its MSA or noticed the depositions of any of the individuals who submitted declarations in
2 support of its MSA.
3 I declare under penalty of perjury under the laws of the State of Califomia and these
4 United States that the foregoing is true and correct.
5 Executed this 20th day of March, 2018 in Los Angeles, California.
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Stephanie Gail Lee
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DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF HEALTH NET'S REPLY TO ITS MOTION FOR
MONETARY SANCTIONS
EXHIBIT A
SUPERIOR COURT OF CALIFORNIA,
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
DATE: 03/09/2018 TIME: 11:30:00 AM DEPT: 35
JUDICIAL OFFICER PRESIDING: Alan Perkins
CLERK: D. Lashley
REPORTER/ERM: NONE
BAILIFF/COURT ATTENDANT: NONE
CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017
CASE TITLE: Spears vs. Health Net of California Inc
CASE CATEGORY: Civil - Unlimited
EVENT TYPE: Motion - Other - Complex
ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS
APPEARANCES
TENTATIVE RULING:
Below is the tentative ruling for the hearing on Friday, March 9, 2018.
The motion of Defendant Health Net of California, Inc. ("Health Net"), pursuant to Code of Civil
Procedure section 2019.020(b), for an order sequencing discovery on seven categories of claims
asserted by Plaintiffs Andrea Spears and Tomas Arana ("Plaintiffs") in the above matter, is denied
without prejudice as set forth below.
Health Net seeks a discovery sequencing order "for the convenience of parties and witnesses and in the
interests of justice" impacting discovery as to: (1) meal and rest breaks, (2) off-the-clock time and (3)
misclassification claims, and derivatives (4) wage statements, (5) waiting time, (6) unfair competition and
(7) PAGA claims. Health Net contends that good cause exists to sequence discovery so that the parties
first address whether certification is appropriate and whether Plaintiffs have standing to represent other
allegedly aggrieved employees. Health Net asserts- that structuring discovery in this manner promotes
judicial economy, the convenience of the parties and the interests of justice because it avoids
burdensome, costly and problematic discovery, all of which would be irrelevant if Plaintiffs cannot
establish certification and that they have standing to proceed on a representative basis.
Health Net specifically requests a "pause" on the "merits-based and classwide discovery of Plaintiffs'
meal and rest break, off-the-clock and misclassification claims unless and until they establish that
certification is appropriate and that they have standing to represent other allegedly aggrieved
employees." (HealthNet MPA, p. 5:4-7.) The list of impacted discovery subject matter and pending
Plaintiff discovery requests, lists 15 specified matters, including all: (1) putative class members' payroll
records (Spears RFP No, 20); (2) putative class members' fime records (Spears RFP No. 21; Arana RFP
No. 8); (3) putafive class members' wage statements (Spears RFP No. 22; Arana RPF No. 9); (4)
putative class members' fime adjustment records (Arana RFP No. 13); and (5) data itemizing the total
number of meal period premiums paid in the last four and a half years. (Id., p. 5:8-6:3.) Health Net's
proposed order lists 19 categories of discovery to be impacted. Health Net also seeks in footnote 5 of
DATE: 03/09/2018 MINUTE ORDER Page 1
DEPT: 35 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
its brief for a stay on its duty to provide further response to pending discovery idenfified in footnote 2 of
its brief (Spears RFP Nos. 8 and 11, and Rog Nos. 11,12,14-16 and 18). Health Net requests that the
Court either defer Health Net having to respond to this discovery unfil and unless Plainfiffs can establish
that the discovery they seek is in any way relevant to the claims asserted in this lawsuit or that the
responses (and documents) Health Net has already provided are somehow deficient.
Health Net also presents evidence demonstrafing the effort and resources that it esfimates will be
required to collect, analyze, and produce the information and material sought in the impacted discovery.
Health Net also raises the financial and personal privacy interests of non-party employees whose
sensifive informafion is encompassed by much of the discovery.
Health Net's proposed order, if the mofion is granted, would direct the parties that they shall first engage
in discovery concerning whether certification is appropriate and whether Plaintiffs Andrea Spears and
Tomas Arana ... have standing to represent other allegedly aggrieved employees on their (1) meal and
rest break, (2) off the clock, (3) misclassificafion claims, and derivafive (4) wage statement, (5) waifing
fime, (6) unfair competifion and (7) PAGA claims. Only after Plainfiffs successfully certify a class and
establish that they have standing as specified could they then proceed with the impacted discovery.
Plaintiff Spears opposes the mofion arguing in summary that the impacted discovery subject matter in
substanfial part is necessary to support a viable class certificafion mofion, and that the threshold of
certificafion for lifting the stay requested by Health Net is inapplicable to the PAGA claims. Plainfiff
argues that "discovery that is often classified as 'merits discovery' is also the evidence that common
quesfions predominate, that the class representative's claims are typical of those of the class, that the
acfion will be manageable at trial as a class acfion, and that the class members are ascertainable, all of
which are requirements for certificafion. Plainfiff does not strongly deny that some of the numerical
discovery will be burdensome for Health Net, but contends that such data is necessary to support the
standard challenges in class certification and that it is Plainfiffs counsel's experience that when a class
defendant needs such data for its own benefit, it is quickly and easily amassed.
The court does not discount or reject the merits of all Health Net's posifion and concerns. Likewise, the
court does not find Plaintiffs posifion entirely unreasonable either. The motion as presented, and
postured after argument in the briefs, is all or nothing. The court is left to page through the 15 or 19
broad categories of impacted discovery without substanfial detail to determine whether it is entirely
irrelevant and unnecessary for Plainfiff to present the best posifion on class certification. Moreover, the
court is faced with the reality that the Plainfiffs allege a PAGA claim that is not subject to the same stay
threshold of certification proposed by Health Net.
The court is also aware of both: 1) the pending mofion for summary adjudicafion, which may have
significant implicafions for the scope and subject matter of future discovery, and 2) the fact that there
have already been a significant number of discovery motions in this case that have been, or will be,
heard by the law and motion department.
Given this status, the court is persuaded that the issues of burden, privacy, relevance/necessity, and
fiming are all much better addressed and analyzed in detailed discovery mofions (mofions to compel,
motions for protecfive order) than by a broad stay on virtually all discovery without the detailed
substance necessary to assess such issues.
Thus, Health Net's motion as framed is denied without prejudice to seek similar specific relief by
appropriate discovery mofion directed to the law and mofion department, including mofions for protecfive
orders.
DATE: 03/09/2018 MINUTE ORDER Page 2
DEPT: 35 Calendar No.
CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS
NOTICE:
To request oral argument on this matter, you must call the Court at (916) 874-7885 (Department 35) by
4:00 p.m., the court day before this hearing and notificafion of oral argument must be made to the
opposing party/counsel. If no call is made, the tentafive ruling becomes the order of the court. Local Rule
1.06. Unless otherwise ordered, the plainfiff shall give actual written nofice of all final rulings ofthe court.
COURT'S RULLING:
The Tentative Ruling was accepted and no appearance was requested.
DATE: 03/09/2018 MINUTE ORDER Page 3
DEPT: 35 Calendar No.
Lee, Stephanie Gail
From: Lee, Stephanie Gail
Sent: Friday, March 9, 2018 1:32 PM
To: 'Victoria Rivapalacio'; Long, Timothy J.
Cc: Norm Blumenthal; Kyle Nordrehaug; AJ B; Shaun Setareh; Stacey Shim; Thomas Segal
Subject: RE: Spears v. Health Net - discovery
Victoria,
Your response is disappointing and unfortunately reflects the "same 'ol same 'ol" from you. .You are demanding
everything without compromise, analysis or consideration of our position and the reasoning for our position.
To be clear, Judge Perkins has invited us to raise sequencing with Judge Krueger. That is all. Absent some resolution in
meet-and-confer, we will go forward with Judge Krueger. And it is quite clear that because you are not willing to engage
in meaningful, good faith meet-and-confer, we will have no choice but to refile our motion in Department 54. We will of
course abide by Judge Krueger's ruling, subject to our appellate rights, just as we would expect you to do.
As for your "proposal":
• Rog Nos. 6-7: you already have information regarding the size o f t h e putative class. More importantly, and as
we've pointed out, a favorable ruling on Health Net's pending summary adjudication motion will make these
unwieldy requests a complete waste of time. If the ruling goes against us, we can revisit these. Why do you
persist in forcing our client to incur a tremendous expense/burden when it might be all for naught, particularly
since our position does not prejudice Plaintiff Spears in any way?
» Rog Nos. 11-12, 14,18 and 19; RFP Nos. 8, 11 and 20-22: you have not narrowed your requests in any fashion
whatsoever, nor have you responded in substance to any our arguments about why sequencing would be
appropriate and cause no prejudice to Plaintiff Spears.
9 Rog Nos. 15-16: as we have pointed out on numerous occasions, we have already provided this
information. Please see my correspondence of December 19, 2017.
• RFP No. 6: we have already provided this data to the third-party administrator and the Belaire-West notices
have already gone out.
We see no reason for a telephone call only for you to repeat yourself yet again. We will take heed to Judge Perkins'
guidance and seek Judge Krueger's input.
Thank you,
Stephanie
Stephanie Gail Lee
Managing Afssociate
Orrick
Los Angeles ®
T+1-213-612-2374
steplianie.lee@orrick.com
ornck
From: Victoria Rivapalacio [mailto:victoria@bamlawca.com]
Sent: Friday, March 9, 2018 12:14 PM
To: Lee, Stephanie Gail ; Long, Timothy J.
Cc: Norm Blumenthal ; Kyle Nordrehaug ; AJ B ;
Shaun Setareh ; Stacey Shim ; Thomas Segal
Subject: RE: Spears v. Health Net - discovery
Stephanie,
I wrote seeking to meet and confer, despite our positions being "so crystallized and understood," because you have
represented that, if discovery is not bifurcated. Defendant will provide substantive responses to the discovery that has
been outstanding from the beginning, as well as producing the responsive documents. Because the Court refrained from
bifurcating discovery as Defendant requested, I seek to meet and confer to determine if Defendant will follow through
on those previous representations and provide the discovery.
Your implication that my willingness to meet and confer has ever been anything other than sincere is without merit and
belied by your subsequent statement that the issues are "crystallized and understood." The fact that our positions are
"so crystallized and understood" stands in direct contrast to your continued fabrication that the parties have not had
extensive and exhaustive "meaningful and thoughtful meet-and-confer" sessions regarding Defendant's deficient
responses to Plaintiff s discovery requests.
As for a proposal: I propose that Defendant provide substantive supplemental responses to Rog Nos. 6-7 (information to
establish the number and ascertain the membership of the class of employees who were subject to the overtime
miscalculation); Rog Nos. 11-12 and 14 (Defendant's pay codes and types of compensation used to pay the class); Rog
Nos. 15-16 (the Bates numbers o f t h e meal period policies for which Defendant produced documents instead of
answering the interrogatory response); Rog No. 19 (the numbers of meal period premiums paid); Rog No. 18 (Class
Members' job duties); RFP No 6 (to state that Defendant will produce the Class Members' contact information); RGP
Nos. 8 and 11 (Defendant's policies and job descriptions); RFP Nos. 20 and 21 (Class Members' electronic time and
payroll records); and RFP No. 22 (Class Members' itemized wage statements).
This discovery remains outstanding and it is unclear at this point whether Defendant will adhere to its prior
representations that it would provide substantive and complete responses if the Court declines to bifurcate discovery or
whether Defendant will repudiate its prior position in favor of further motion practice. (Please also note that Defendant
filed the motion to sequence discovery, not Plaintiff, which reveals that your statement below that "[wje believe that
the issues between us can be resolved without court intervention" is simply not true and never has been.)
If Defendant is willing to provide substantive responses to any o f t h e above discovery, it would be helpful to be able to
further refine the issues that must be presented to the Court, if any remain. To that end, please provide a time when
you are available to meet and confer telephonically.
Thank you,
Victoria
From: Lee, Stephanie Gail [mailto:stephanie.lee(5)orrick.coml
Sent: Friday, March 09, 2018 7:22 AM
To: Victoria Rivapalacio : Long, Timothy J.
Cc: Norm Blumenthal : Kyle Nordrehaug : AJ B :
Shaun Setareh : Stacey Shim : Thomas Segal
Subject: RE: Spears v. Health Net - discovery
Thank you, Victoria, for your e-mail. We are guardedly optimistic that your willingness to meet and confer is
sincere. You have known our position in great deal for months. We started this process in the Fall of 2017, which led to
the parties agreeing to tee up our respective positions to Judge Perkins at the last CMC. Judge Perkins then asked the
parties to brief the issues so that he could resolve them, which you and we did. (It bears rinentioning that plaintiff Arana
has never disputed our position.) For whatever inexplicable reason. Judge Perkins has now elected not to decide these
issues but instead to invite the parties to present the issues to Judge Krueger. We are prepared to do so.
Because the issues are so crystallized and understood, we ask that you present in writing your proposals to resolve or
narrow the issues in dispute. And given the tinning of the situation, there is no reason why you shouldn't be able to do
so promptly. Presumably you had blocked out time this morning to prepare for and appear at the hearing. Now you can
use that time to send us a proposal.
To that end, we request that you present a written proposal before 1:00 p.m. today, which we will consider. If you don't
or your proposal is just the "same ole same ole" that you have repeated before, we will have no choice but to conclude
that Plaintiff Spears is not interested in meaningful and thoughtful meet-and-confer. By contrast if you do present a
meaningful proposal we will respond in kind.
We believe that the issues between us can be resolved without court intervention. We always have.
We look forward to receiving your proposal today.
Thank you,
Stephanie
Stephanie Gail Lee
Miinaging Associaie
Ornck
Los Angeles ®
T+1-213-612-2374
stephanie.lee@orrick.com
ornck
From: Victoria Rivapalacio [mailto:victoria@bamlawca.coml
Sent: Thursday, March 8, 2018 5:29 PM
To: Lee, Stephanie Gail : Long, Timothy J.
Cc: Norm Blumenthal : Kyle Nordrehaug : AJ B :
Shaun Setareh : Stacey Shim : Thomas Segal
Subject: Spears v. Health Net - discovery
Counsel:
Please provide your availability to meet and confer regarding the outstanding discovery issues in light of the Court's
order today regarding Defendant's motion to sequence discovery.
Thank you,
Victoria Rivapalacio
Attorney
Blumenthal Nordrehaug Bhowmik De Blouw LLP
2255 Calle Clara
La Jolla, CA 92126
Direct: 858-952-0352
Fax: 858-551-1232
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EXHIBIT C
1 TIMOTHY J. LONG (STATE BAR NO. 137591)
FILED
tjlong@orrick.com Superior Court Of Califon^ia,
2 ORRICK, HERRINGTON & SUTCLIFFE LLP Sacramento
400 Capitol Mall, Suite 3000
3 Sacramento, CA 95814-4497 11/27/2017
Telephone: . .+1 916 447-9200 -
4 Facsimile: +1 916 329 4900 Depi ty
B^f
Casa Mumbun
5 STEPHANIE GAIL LEE (STATE BAR NO. 285379)
stephanie.lee@oirick.com
6 ORRICK, HERRINGTON & SUTCLIFFE LLP
777 South Figueroa Street, Suite 3200
7. Los Angeles, CA 90017-5855
Telephone: +1-213-629-2020
8 Facsimile: +1-213-612-2499
9 Attomeys for Defendant
HEALTH NET OF CALIFORNOA, INC.
10
11 SUPERIOR COURT OF THE STATE OF CALIFORNIA
12 COUNTY OF SACRAMENTO
13
ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560-
14 of herself and on behalf of all persons similarly CU-OE-GDS
situated,
IS Plaintiff, ASSIGNED FOR ALL PURPOSES TO
JUDGE ALAN G. PERKINS. DEPT. 35
16 V.
DEFENDANT'S CASE MANAGEMENT
17 HEALTH NET OF CALIFORNIA, INC., a CONFERENCE STATEMENT
California Corporation; and Does 1 through SO,
18 inclusive, Date: December 8,2017
Time: 10:30 am.
19 Defendants. DepL: 35
20 Complaint Filed: April 5,2017
FAC Filed: June 29,2017
21 Trial Date: None Set
22
TOMAS R. ARANA, on behalf of himself, aU
others similarly situated. Complaint Filed: August 1,2017
23
24 Plaintiff,
25
26 HEALTH NET, INC., a Delaware corporation;
and DOES 1-50, inclusive,
27
Defendant.
28
OHSUSA:767725203J
DEFENDANT'S CASE MANAGEMENT CONFERENCE STATEMEKT
1 Defendant Health Net of California, Inc. C'Health Net") submits the following Case
2 Management Conference Statement in advance of the Case Management Conference set for
3 December 8,2017 at 10:30 am.
4 L CASE SUMMARY
5 Plaintiffs initially filed their wage-and-bour class and representative claims against Health
6 Net in sqiarate actions. The Court, following a stipulation between the parties, consolidated and
7 assigned the cases for all purposes to this Dq)artment Specifically and coUectively, Plaintiffs
8 allege that Health Net failed to provide them and putative class members with meal and rest breaks,
9 pay them all hourly wages, properly calctilate their regular rate of pay and, derivatively, failed to
10 provide them with accurate wage statements, failed to timely pay them allfinalwt^es and engaged
11 unfidr competitioiL Health Net denies that Plaintiff can meet the requirements to certify a class
12 and that Plaintiffs and the individuals they seek to represent are aggrieved. Health Net also disputes
13 Plaintiffs* claims on the merits.
14 IL PROCEDUB Al • m.STORV
15 A. The Soears Matter
16 Plaintiff Speais is a former customer service representative for Health Net For
17 approximately two years, she worked at one of Health Net's call centers located in Rancho Cordova,
18 California. She filed her putative class action complaint against Health Net on April 5, 2017,
19 purporting to represent approximately 4,800 cunent and former non-exempt Health Net employees
20 in CalifomiafromApril 5,2013 to the present On or about June 29,2017, Plaintifffiledher First
21 Amended Complaint ("FAC") adding Private Attomeys General Act C^AGA") allegations. She
22 alleges that Health Net did not properly include "cash" received by her and putative class members
23 who waived certain coverage under its health and welfiire benefits plan in their regular rate of pay,
24 that Health Net did not include other "bonus" payments in their regular rale of pay, and that Health
25 Net failed to provide them with meal and rest breaks. Health Netfiledits Answer to Plaintiff
26 Spears' FAC on August 9,2017 denying all of these claims.
27
28
OHSUSA:767725203.5
DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT
1 B. The y4rgna Matter
2 Plaintiff Arana has held various non-exempt and exempt positions during his employment
3 with Health Net including, currently, Call Center Systems Analyst I. At all times during his
4 employment. Plaintiff Arana has worked at one of Health Net's call center locations in Rancho
5 Cordova - die same one at which Plaintiff Spears worked. Plaintiff Arana filed his Complaint
6 against Health Net in this Court on August 1,2017. He purports to represent:
7 (1) "Non-Exempt Class: All persons employed by Heath Net . . . and/or any stafBng
8 agencies and/or any other third parties' who worked in a call center in hourly or non-exempt
9 positions in California;"
10 (2) "Exempt Class: All persons employed by Health Net... and/or any staffing agencies
II and/or any othertibdrdparties in Califomia as a Business Analyst, Systems Analyst, Contact Center
12 Analyst or Analyst;"
13 (3) "Roundii^ Class: All persons employed by Health Net... and/or any staffing agencies
14 and/or any other third parties .in Califomia whose hours worked were affected by [Health Net's
15 alleged] rounding practices;" and
16 (4) "UCL Class: All Non-exempt Class, Exempt Class and Rounding Class members
17 employed by [HealthNet] in Califomia."
18 Collectively, Plaintiff Arana purports to represent approximately 260 additional current and
19 former exempt employees of Health Net with the job titles containing the word "Analyst" He
20 alleges that Health Net failed to provide him and other putative class members with meal and rest
21 breaks, failed to pay them for all hours woriced due to its alleged rounding practice and for not
22 compensating for time pre- and post-shift time spent logging in and out of their computers, and
23 improperly calculated their regular lates'of pay by failing to include nondiscretionary bonuses and
24 shift differential pay. Plaintiff Arana also alleges that Health Net misclassified him and certain
25 others as exempt. Health Netfiledits Answer on September 6,2017 denying all of these claims.
26 On or about October 3,2017, Plaintiff Arana served Health Net with his proposed amended
27 complaint However, Health Net thereafter received a copy of the "Notice to Filing Party -
28
' No staffing agencies or third parties have been named as defendants.
OHSUSA:767725203.5 " ^"
DEFENDANT'S CASE MANAGEMENT CONFERENCE STATEMENT
1 Returned Documents"fiomthe Court noting that the Court was unable to process Plaintiff Arana's
2 proposed amended complaint Health Net has not, to date, been served with a revised proposed
3 amended complaintfromPlaintiff Arana.
4 C. Consolidation
5 On October 11,2017, pursuant to the stipulation of all patties, the Court consolidated the
6 Spears and Arana matters for all purposes, assigned the matter to this Departmentforall purposes.
7 and assigned the case a new case number. Attached hereto as Exhibit A is a true and correct copy
8 of the October 11,2017 Stipulation and Order Regarding Consolidation.
9 in. PLEADINGS
10 Following the Court's consolidation ofthe Spears and Arana matters, counsel for Health
11 N ^ initiated meet and confer discussions with Plaintiffis' counsel regarding their pleadings.
12 Specifically, Health Net's counsel requested that PlaintifEs file a consolidated complaint to help
13 streamline the litigation going forward. As Health Net's counsel explained, it is difficult to
14 understand how the parties will smoothly litigate this case as one matter when there are two
15 operative complaints at issue. This is especially the case given that the two. complaints allege
16 overlapping claims involving overiapping subclasses covering overlapping periods of time.
17 The complications arisingfiomthis overly have already presented in the context of written
18 discovery. For example, both Plaintiffs have sought the identities of putative class members and
19 the parties have agreed to the use of one opt-out notice. However, given the ambiguity that has
20 resulted due to the overlap in subclasses,°the parties have not been able to reach an agreement as to
21 who, exacdy, should receive the notice. See Section V.B. below. Having one consolidated
22 complaint that defines the putative classes for this one consolidated action only makes sense.
23 With respect to motion practice, a consolidated complaint will also streamline matters - not
24 only for the parties but also the Court. For example, should Health Net determine that this matter
25 is suitable for disposition on summary judgment must it bring two separate motions?^ Given die
26 overlap of claims, subclasses and periods of time described above, it would seem that the answer
27
28 ' As Health Net notes below, it believes that Plaintiff Spears' and Plaintiff Arana's regular rate and
rbimding claims are susceptible to summary adjudication.
OHSUSA:767725203.5
-3-
DgENDANT'S CASE MANAGEMENT CONFERENCE STATEMENT
1 would have to be "yes." Otherwise, how will the parties and the Court be able to determine whether
2 any given cause of action should be dismissed in its entirety?
3 This quandary is even further exacerbated should this matter survive summary judgment
4 and proceed to trial. If the parties themselves have become confiised by who is included in the
5 putative class, then how is a jury to undostand who are in the putative classes and v/bo are not?
6 Issues presented by the overlap aside, there are other practical reasons v/hy Plaintiff should
7 file a consolidated complaint As Health Net's counsel also noted during the parties' meet and
8 confer, consolidation would permit Plaintiff the opportunity to clarify their pleadings.
9 Specifically, Plaintiff Spears' FAC is vague and ambiguous with regard to her regularrateclaim
10 and Plaintiff Arana states in his Complaint that he purports to represent employees Health Net does
11 not and has not ever employed.
12 Notwithstanding counsel's meet and confer discussions. Plaintiffs dected not tofilean
13 amended complaint Health Net proposes consideration of this matter at the Case Management
14 Conference and requests that the Court order Plaintiffs to file a single complaint consolidating tiieir
15 claims.
16 IV. HEALTH NET'S CONTENTIONS
17 A. Class Certification
18 Health Net contends that Plaintiffs will be unable to certify a class, or any of the proposed
19 subclasses. This case involves a complicated patchwork of alleged subclasses and certification
20 theories attempting to sweep in thousands of putative class members in hundreds of different job
21 tities over the course of over four years during which Health Net has undergone a shift in ownership
22 and, as a result, change in certain relevant policies and procedures. Adjudication of Plainti£&*
23 claims on a class-wide basis is simply untenable.
24 For example, with respect to the putative subclass of non-exempt employees, at all relevant
25 times. Health Net maintained legidly compliant policies regarding hourly compensation, recording
26 oftimeworked and breaks taken, provision of meal and rest breaks, calculation of employees'
27 regular rate of pay for purposes of overtime compensation, payment of wages at termination and
28
provision of wage statements. Individualized inquiries are necessary to determine whether any
OHSUSA:7677252(O.S "^ "
DEFENDANT.'S CASE MANAGEMENT CONFERENCE STATEMENT
1 ^ployee was not provided compliant meal or rest breaks or premiums or properly waived them,
2 was due unpaid wages including overtime, received correct wage statements and/or was injured by
3 these wage statements, and/or did not receive all wages due at termination. This is especially true
4 given that putative class members worked at different locations, for different employers, \mda
5 diffo'ent timekeeping systems, in a plethora of different positions with varying job requirements,
6 under different supervisors and under different working conditions - e.g., even Health Net's two
7 call centers vary in services provided and employee responsibilities depending on such things as
8 supervisor preferences and customers serviced. Thus, the circumstances of Plaintiffs' employment
9 when they were non-exempt employees of Health Net differfiomthose of other putative class
10 members. Further, the circumstances regarding Plaintiff' timesheet and timekeeping records
11 dating back to when they were employed by Health Net as non-exempt employees evidence
12 individual differences, including whether they property recorded their hours and whether and how
13 they followed Health Net's reasonable policies and procedures. To the extent Plaintiff failed to
14 follow Health Net's timekeeping policies and procedures, they cannot represent employees who
15 did In fact, in the matter ofShaunetta Eddlng^ v. Health Net, Inc., Central District of California
16 Case No. 2:10-cv-01744-JLS-RZ, the plaintiffs sought to certify meal period and off-the-clodc
17 claims brought on behalf of the very same call center employees as Plaintiff seek to represent YIGK
18 The Court there refused to certify these claims for reasons that will likely drive the analysis in this
19 case.
20 Moreover, as to the putative subclass of employees that Plaintiff Arana claims was
21 misclassified as exempt, class certification is likewise ins^qnopriate. For example, the woric
22 actually p»formed by Plaintiff Arana as an exempt Call Center Systems Analyst I in any given
23 week varies greatly - not onlyfiomthe work actually performed by other Call Center Systems
24 Analysts and other members ofthe "Exempt Class" he purports to represent, but it also varies week
25 by week even for himself. For example, the work Plaintiff Arana actually performs as a Call Center
26 Systems Analyst I in any given week depends heavily on such factors as the project on vM.ch he is
27 working, how many employees he is supervising on the project, who he reports to for the project,
28 whether he has multiple projects going on at once, and so on.
OHSUSA:767725203.S "^ "
DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT
1 In terms ofthe type and substance of work actually performed in any given week, members
2 of the "Exempt Class" vary significantiy. For example, since Plaintiff Arana works in a call center,
3 his overarching duties include making recommendations for and executing improvements to call
4 center policies and procedures. He also serves as a subject matter expert for the call center by
5 researching and helping to address root causes of escalated issues and ensuring timely resolution.
6 Moreover, he takes the lead on various call center projects, identifies requirements for new
7 processes and procedtires, and makes recommendations for system enhancements. By contrast, for
8 example. Business Analysts who work in the current G&A Claims Administration department are
9 generally responsible for analyzing claims that have been escalated to the Legal Department for
10 purposes of evaluating the significance, level of exposure and correct outcome of claim
11 adjudication. This process entails reviewing individual claims and making recommendations on
12 the outcomes of the disputes, which are supported by the individual Business Analysts' findings,
13 analysis and data. Business Analysts in this group are tasked with understanding and interpreting
14 the specific terms ofthe contract at issue in order to make a determination of whether a claim has
15 been processed correctiy, and identifying any discrepancies that explain or help resolve the
16 escalation of the matter to Legal. Suffice to say, work actually performed by members of the
17 "Exempt Class" in any given workweek varies greatiy.
18 In addition to these variances, if any member of Plaintiff Arana's "Exempt Class" did not
i9 spend at least half his or her workweek performing exempt duties, whether that onployee's
20 performance was consistent with Health Net's realistic expectations also necessitates an
21 individualized inquiry. '
22 These are just some of the reasons why Plaintiffs cannot meet class certification
23 requirements.
24 Health Net suggests that the Court set a deadline for class certification motions that is five
25 months away.
26 B. Merits
27 Certification issues aside, Plaintiffs' allegations are meritiess. For instance, Plamtiff
28 Spears' regular rate claim - premised on her theorytiiat"cash" received by her and other non-
OHSUSA:76772S203.S "^ '
DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT
1 exempt employees who vt^ved certain coverage under Health Net's health and welfare benefits
2 plan wore improperly excludedfromtheir regular rate of pay - is baseless. Infeet,these payments
3 were properly excluded from employees' regular rate of pay. See 29 U.S.C. § 207(e)(4); see also
4 29 CFJt. § 778.215. Plaintiff' other stated grounds for unpaid overtime - namely non-inclusion
5 of nondiscretionary bonuses and shift differentials in their regularrate- are similariy baseless.
6 Indeed, during the relevant time period, the only bonus payments not included in non-exempt
7 employees' regular rates of pay were discretionary. By contrast, all nondiscretionary bonuses
8 payments (and shift differentials) were included. Thus, Plaintiffs' regularrateclaims are
9 susceptible to summary adjudication and Health Net intends tofilea motion promptiy to dispose
10 of them.
11 As for Plaintiff Arana's rounding claim, summary adjudication is also 8|)propriate for the
12 simple fact that Health Net does not round its employees' recorded time for purposes of generating
13 paychecks. Should Plaintiff Arana persist witii this claim. Health Net willfilea dispositive motion.
14 C. PAGA and ManageabiHtv
15 For the same reasons outlined above, Health Net contends that Plaintiff Spears is not an
16 aggrieved employee and cannot, therefore, seek to represent others under the PAOA.^ Moreover,
17 Health Net maintains that any trial of Plaintiff Spears' PAGA claim is unmanageable. To that end.
18 Health Net anticipates brin^g a motion challenging Plaintiff Spears' representative action
19 allegations.
20 V. DISCOVERY
21 A. Health Net's Proposed Discovery Plan; Phased Discovery
22 Plaintiff Spears and Plaintiff Arana have separately propounded written discovery on Health
23 Net Specifically, Plaintiff Spears propounded:
24 • 14 Requests for Admission;
25 • 25 Requests for Production of Dociunents;
26 • 26 Special Interrogatories; and
27
28 ' As mentioned above, while Plaintiff Arana attempted to file an amended complaint alleging
PAGA claims, the Court rejected his filing.
OHSUSA:76772S203.5 -7-
DEFENDANT'S CASE MANAGEMENT CONFERENCE STATEMENT
1 • One set ofEmployment Law Form .Intenrogatories.
2 Plaintiff Arana propounded:
3 • 15 Requests for Admission;
4 • 31 Requests for Production of Documents;
5 • 2 4 Special Interrogatories; and
6 • One set of Employment Law Form Interrogatories.
7 Not surprisingly in light of the overlapping allegations, some of Plaintiff* respective
8 discovery overlaps. This notwithstanding, and pursuant to the agreement reached with Plaintiff'
9 counsel following meet and confer discussions. Health Net will have re^nded substantively to all
10 class certification-related discovery by the time the Case Management Conference is held.^
11 Just by way of example, as to Plaintiffs' meal break claim. Health Net will have inrovided
12 its policies governing meal periods in response to Plaintiff Spears' Request for Production No. 7.
13 And, Health Net will hove provided a description of its policies and procedures regarding the
14 provision of meal breaks in response to Plaintiff Arana's Special Interrogatory No. 14. However,
15 Health Net will not have responded substantively to Plaintiff Spears' Special Interrogatory No. 19
16 seeking the total number of meal period premiums paid to putative class members or Plaintiff
17 Arana's Special Interrogatory No. 17 seeking the total dollar amount in meal period premiums paid
18 to putative class members.
19 Health Net maintains that the latter seek data unrelated to >^ether any class should be
20 certified, and requeststiiatthe Court issue an order phasnig discovery on Plaintifis' meal and rest
21 break, off-the-clock and misclassification claims.^ Health Net believes that bifurcating discovery
22 - limiting thefirstphase of discovery to class certification-related issues on Plaintiff' meal and
23 rest break, off-the-clock and misclassification claims - will streamline discovery efforts and
24 ultimately save all partiesfromengaging in costiy merits-based discovery because Plaintiff will
25 not be able to satisfy the requirements for class certification on these claims. Indeed, many courts
26 * As to Plaintiff' regularrateand roxmding claims, however. Health Net will have provided merits-
27 related discovery responses by the time the Case Management Conference is held in anticipation
of its forthcoming summary adjudication motion.
28 ' Pursuant to stipulation, the parties have agreed to extend Plaintiff Spears' motion to compel
deadline to December 15,2017 so that the Court may rule on this issue.
OHSUSA:76772S203J "^ '
DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT
1 recognize the economic benefits of bifurcating discovery and issue orders accordingly per section
2 2019.020(b) oftiieCode of Civil Procedure.
3 B. ^gfafra-Wert Notice
4 As mentioned above, both Plaintiffs sought contact information of putative class members
5 in their written discovery to Health Net. Health Net agreed to provide such information followiiig
6 notice to putative class members of the disclosure and the opportunity for them to opt out, and
7 Plaintiff Spears agreed to cover the cost. Unresolved is the contmt of the notice. Despite Health
8 Net's counsel's multiple efforts to schedule a meet and confer telephone call with all counsel, sudi
9 a call has not occuned and all parties have not been able to discuss the content
10 Plaintiff Spears cut short meet and confer opportunities byfilinga "Motion for Order for
11 Opt-Out Privacy Notice To Be Sent To The Class Members" ("Motion") on November 16,2017.
12 Curiously, shefiledher motion in Department 54 before Judge Cadei, even though this matter was
13 assigned to this Court on August 1, 2017, which was later confirmed by the Stipulation and Order
14 signed by all parties and entered by the Court on October 11, 2017. See Exhibit A (reflecting
15 assignment of this matter "for all purposes to Judge Alan G. Perkins, Dept 35").
16 Procedural matters aside, logic dictates that this Court should hear the Motion since it is
17 managing this case. Indeed, Health Net sees no reason why this issue cannot be tackled at the Case
18 Man^ement Conference.^ Health Net believes that Plaintiffsfilinga consolidated complaint (see
19 Section III. above) will solve the "impasse" that Plaintiff Spears claims to need resolution in her
20 Motion. For example, with regard to the language of thie proposed Belaire-West Notice identifying
21 the recipients. Plaintiff Spears proposed sending the Notice only to:
22
CURRENT AND FORMER NON-EXEMPT EMPLOYEES
23 EMPLOYED BY HEALTH NET OF CALIFORNIA, E^C.
BETWEEN APRH. 5,2013 AND THE PRESENT
24
See Exhibit B.
25
If she has her way, however, it appears based on the phraseology of Plaintiff Arana's
26
Complaint that the entirety of the "Exempt Class" will not receive the Notice. Health Net further
27
28 ^Healdi Net anticipates filing and serving its Opposition to the Motion on December 5, 2017.
Health Net will provide the Court with a courtesy copy of its. opposition brief upon filing.
(M«USA:76772S203.5 -9-
DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT
1 maintains that the opt-out procedure should only occur once m this matter for many reasons, the
2 least of which is that the burden of undergoing the process twice (or more) completely undercuts
I
3 the efficieiM:y drivers behind consolidation in the first place. In fact, the parties have agreed that
4 one notice makes the
Preview
1 TIMOTHY J. LONG (STATE BAR NO. 137591) tjlong@orrick.com mm 2 ORRICK, HERRINGTON & SUTCLIFFE LLP '20iaHAR2O P' M 2: 03 400 Capitol Mall, Suite 3000 3 Sacramento, CA 95814-4497 Telephone: +1 916 447 8299 4 Facsimile: +1 916 329 4900 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@orrick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 7 Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 9 Attomeys for Defendant HEALTH NET OF CALIFORNL\, INC. 10 II SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated, 15 Plaintiff, DECLARATION OF STEPHANIE GAIL L E E IN SUPPORT OF DEFENDANT 16 HEALTH NET OF CALIFORNIA, INC.'S REPLY TO ITS MOTION FOR 17 HEALTH NET OF CALIFORNIA, INC., a MONETARY SANCTIONS Califomia Corporation; and Does 1 through 50, 18 inclusive, Date: March 27, 2018 Time: 9:00 a.m. 19 Defendarits. Dept: 54 20 Complaint Filed: April 5, 2017 FAC Filed: June 29, 2017 21 Consolidated Complaint Filed: Dec. 21, 2017 eg 22 TOMAS R. ARANA, on behalf of himself, all others similarly situated, Complaint Filed: August 1, 2017 < 23 z 24 Plaintiff, g .25 HEALTH NET OF CALIFORNIA, INC., a 26 Califomia corporation; and DOES 1-50, o 27 inclusive, Defendant. 28 DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF HEALTH NET'S REPLY TO ITS MOTION FOR MONETARY SANCTIONS 1 I, Stephanie Gail Lee, hereby declare as follows: 2 1. I am an attomey duly admitted to practice before the courts of the State of 3 Califomia and am an associate in the law firm of Orrick, Herrington & Sutcliffe LLP, attomeys of 4 record for Defendant Health Net of Califomia, Inc. ("Health Net"). I make this declaration on 5 personal knowledge and, if swom as a witness, could competently testify to the following facts 6 except where otherwise indicated. 7 Health Net's Motion to Sequence Discovery 8 2. On March 9, 2018, Judge Perkins denied Health Net's Motion to Sequence 9 Discovery without prejudice "to seek similar specific relief by appropriate discovery motion 10 directed to the law and motion department " Attached hereto as Exhibit A is a tme and 11 correct copy of Judge Perkins'March 9, 2018 Order. 12 3. After Judge Perkins' Order was issued and before Health Net filed its Motion to 13 Sequence Discovery in this Department, I met and conferred with Plaintiffs' counsel and 14 specifically invited Victoria Rivapalacio, counsel for Plaintiff Andrea Spears, to present her 15 proposals to resolve or narrow the issues in dispute. Those efforts were unsuccessfijl. Attached 16 hereto as Exhibit B is a tme and correct copy of my March 9, 2018 e-mail exchange with Ms. 17 Rivapalacio. 18 4. Plaintiff Tomas Arana did not oppose Health Net's Motion to Sequence Discovery 19 when it was pending before Judge Perkins. 20 Health Net's Motion for Summary Adjudication 21 5. On November 27, 2017, Health Net filed its Case Management Conference 22 ("CMC") Statement wherein Health Net informed Judge Perkins and Plaintiffs that it intended to 23 file its Motion for Summary Adjudication ("MSA") attacking Plaintiffs' regular rate and roxmding 24 claims. Attached hereto as Exhibit C is a tme and correct copy of Health Net's November 27, 25 2017, CMC Statement, without the attachments. 26 6. Health Net filed its MSA on Febmary 8, 2018. To date, neither Plaintiff has 27 propounded written discovery relating to Health Net's additional evidence submitted in support of 28 •1- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF HEALTH NET'S REPLY TO ITS MOTION FOR MONETARY SANCTIONS its MSA or noticed the depositions of any of the individuals who submitted declarations in 2 support of its MSA. 3 I declare under penalty of perjury under the laws of the State of Califomia and these 4 United States that the foregoing is true and correct. 5 Executed this 20th day of March, 2018 in Los Angeles, California. 6 7 8 Stephanie Gail Lee 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- DECLARATION OF STEPHANIE GAIL LEE IN SUPPORT OF HEALTH NET'S REPLY TO ITS MOTION FOR MONETARY SANCTIONS EXHIBIT A SUPERIOR COURT OF CALIFORNIA, COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER DATE: 03/09/2018 TIME: 11:30:00 AM DEPT: 35 JUDICIAL OFFICER PRESIDING: Alan Perkins CLERK: D. Lashley REPORTER/ERM: NONE BAILIFF/COURT ATTENDANT: NONE CASE NO: 34-2017-00210560-CU-OE-GDS CASE INIT.DATE: 04/05/2017 CASE TITLE: Spears vs. Health Net of California Inc CASE CATEGORY: Civil - Unlimited EVENT TYPE: Motion - Other - Complex ASSOCIATED CASES: 34-2017-00216685-CU-OE-GDS APPEARANCES TENTATIVE RULING: Below is the tentative ruling for the hearing on Friday, March 9, 2018. The motion of Defendant Health Net of California, Inc. ("Health Net"), pursuant to Code of Civil Procedure section 2019.020(b), for an order sequencing discovery on seven categories of claims asserted by Plaintiffs Andrea Spears and Tomas Arana ("Plaintiffs") in the above matter, is denied without prejudice as set forth below. Health Net seeks a discovery sequencing order "for the convenience of parties and witnesses and in the interests of justice" impacting discovery as to: (1) meal and rest breaks, (2) off-the-clock time and (3) misclassification claims, and derivatives (4) wage statements, (5) waiting time, (6) unfair competition and (7) PAGA claims. Health Net contends that good cause exists to sequence discovery so that the parties first address whether certification is appropriate and whether Plaintiffs have standing to represent other allegedly aggrieved employees. Health Net asserts- that structuring discovery in this manner promotes judicial economy, the convenience of the parties and the interests of justice because it avoids burdensome, costly and problematic discovery, all of which would be irrelevant if Plaintiffs cannot establish certification and that they have standing to proceed on a representative basis. Health Net specifically requests a "pause" on the "merits-based and classwide discovery of Plaintiffs' meal and rest break, off-the-clock and misclassification claims unless and until they establish that certification is appropriate and that they have standing to represent other allegedly aggrieved employees." (HealthNet MPA, p. 5:4-7.) The list of impacted discovery subject matter and pending Plaintiff discovery requests, lists 15 specified matters, including all: (1) putative class members' payroll records (Spears RFP No, 20); (2) putative class members' fime records (Spears RFP No. 21; Arana RFP No. 8); (3) putafive class members' wage statements (Spears RFP No. 22; Arana RPF No. 9); (4) putative class members' fime adjustment records (Arana RFP No. 13); and (5) data itemizing the total number of meal period premiums paid in the last four and a half years. (Id., p. 5:8-6:3.) Health Net's proposed order lists 19 categories of discovery to be impacted. Health Net also seeks in footnote 5 of DATE: 03/09/2018 MINUTE ORDER Page 1 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS its brief for a stay on its duty to provide further response to pending discovery idenfified in footnote 2 of its brief (Spears RFP Nos. 8 and 11, and Rog Nos. 11,12,14-16 and 18). Health Net requests that the Court either defer Health Net having to respond to this discovery unfil and unless Plainfiffs can establish that the discovery they seek is in any way relevant to the claims asserted in this lawsuit or that the responses (and documents) Health Net has already provided are somehow deficient. Health Net also presents evidence demonstrafing the effort and resources that it esfimates will be required to collect, analyze, and produce the information and material sought in the impacted discovery. Health Net also raises the financial and personal privacy interests of non-party employees whose sensifive informafion is encompassed by much of the discovery. Health Net's proposed order, if the mofion is granted, would direct the parties that they shall first engage in discovery concerning whether certification is appropriate and whether Plaintiffs Andrea Spears and Tomas Arana ... have standing to represent other allegedly aggrieved employees on their (1) meal and rest break, (2) off the clock, (3) misclassificafion claims, and derivafive (4) wage statement, (5) waifing fime, (6) unfair competifion and (7) PAGA claims. Only after Plainfiffs successfully certify a class and establish that they have standing as specified could they then proceed with the impacted discovery. Plaintiff Spears opposes the mofion arguing in summary that the impacted discovery subject matter in substanfial part is necessary to support a viable class certificafion mofion, and that the threshold of certificafion for lifting the stay requested by Health Net is inapplicable to the PAGA claims. Plainfiff argues that "discovery that is often classified as 'merits discovery' is also the evidence that common quesfions predominate, that the class representative's claims are typical of those of the class, that the acfion will be manageable at trial as a class acfion, and that the class members are ascertainable, all of which are requirements for certificafion. Plainfiff does not strongly deny that some of the numerical discovery will be burdensome for Health Net, but contends that such data is necessary to support the standard challenges in class certification and that it is Plainfiffs counsel's experience that when a class defendant needs such data for its own benefit, it is quickly and easily amassed. The court does not discount or reject the merits of all Health Net's posifion and concerns. Likewise, the court does not find Plaintiffs posifion entirely unreasonable either. The motion as presented, and postured after argument in the briefs, is all or nothing. The court is left to page through the 15 or 19 broad categories of impacted discovery without substanfial detail to determine whether it is entirely irrelevant and unnecessary for Plainfiff to present the best posifion on class certification. Moreover, the court is faced with the reality that the Plainfiffs allege a PAGA claim that is not subject to the same stay threshold of certification proposed by Health Net. The court is also aware of both: 1) the pending mofion for summary adjudicafion, which may have significant implicafions for the scope and subject matter of future discovery, and 2) the fact that there have already been a significant number of discovery motions in this case that have been, or will be, heard by the law and motion department. Given this status, the court is persuaded that the issues of burden, privacy, relevance/necessity, and fiming are all much better addressed and analyzed in detailed discovery mofions (mofions to compel, motions for protecfive order) than by a broad stay on virtually all discovery without the detailed substance necessary to assess such issues. Thus, Health Net's motion as framed is denied without prejudice to seek similar specific relief by appropriate discovery mofion directed to the law and mofion department, including mofions for protecfive orders. DATE: 03/09/2018 MINUTE ORDER Page 2 DEPT: 35 Calendar No. CASE TITLE: Spears vs. Health Net of California Inc CASE NO: 34-2017-00210560-CU-OE-GDS NOTICE: To request oral argument on this matter, you must call the Court at (916) 874-7885 (Department 35) by 4:00 p.m., the court day before this hearing and notificafion of oral argument must be made to the opposing party/counsel. If no call is made, the tentafive ruling becomes the order of the court. Local Rule 1.06. Unless otherwise ordered, the plainfiff shall give actual written nofice of all final rulings ofthe court. COURT'S RULLING: The Tentative Ruling was accepted and no appearance was requested. DATE: 03/09/2018 MINUTE ORDER Page 3 DEPT: 35 Calendar No. Lee, Stephanie Gail From: Lee, Stephanie Gail Sent: Friday, March 9, 2018 1:32 PM To: 'Victoria Rivapalacio'; Long, Timothy J. Cc: Norm Blumenthal; Kyle Nordrehaug; AJ B; Shaun Setareh; Stacey Shim; Thomas Segal Subject: RE: Spears v. Health Net - discovery Victoria, Your response is disappointing and unfortunately reflects the "same 'ol same 'ol" from you. .You are demanding everything without compromise, analysis or consideration of our position and the reasoning for our position. To be clear, Judge Perkins has invited us to raise sequencing with Judge Krueger. That is all. Absent some resolution in meet-and-confer, we will go forward with Judge Krueger. And it is quite clear that because you are not willing to engage in meaningful, good faith meet-and-confer, we will have no choice but to refile our motion in Department 54. We will of course abide by Judge Krueger's ruling, subject to our appellate rights, just as we would expect you to do. As for your "proposal": • Rog Nos. 6-7: you already have information regarding the size o f t h e putative class. More importantly, and as we've pointed out, a favorable ruling on Health Net's pending summary adjudication motion will make these unwieldy requests a complete waste of time. If the ruling goes against us, we can revisit these. Why do you persist in forcing our client to incur a tremendous expense/burden when it might be all for naught, particularly since our position does not prejudice Plaintiff Spears in any way? » Rog Nos. 11-12, 14,18 and 19; RFP Nos. 8, 11 and 20-22: you have not narrowed your requests in any fashion whatsoever, nor have you responded in substance to any our arguments about why sequencing would be appropriate and cause no prejudice to Plaintiff Spears. 9 Rog Nos. 15-16: as we have pointed out on numerous occasions, we have already provided this information. Please see my correspondence of December 19, 2017. • RFP No. 6: we have already provided this data to the third-party administrator and the Belaire-West notices have already gone out. We see no reason for a telephone call only for you to repeat yourself yet again. We will take heed to Judge Perkins' guidance and seek Judge Krueger's input. Thank you, Stephanie Stephanie Gail Lee Managing Afssociate Orrick Los Angeles ® T+1-213-612-2374 steplianie.lee@orrick.com ornck From: Victoria Rivapalacio [mailto:victoria@bamlawca.com] Sent: Friday, March 9, 2018 12:14 PM To: Lee, Stephanie Gail ; Long, Timothy J. Cc: Norm Blumenthal ; Kyle Nordrehaug ; AJ B ; Shaun Setareh ; Stacey Shim ; Thomas Segal Subject: RE: Spears v. Health Net - discovery Stephanie, I wrote seeking to meet and confer, despite our positions being "so crystallized and understood," because you have represented that, if discovery is not bifurcated. Defendant will provide substantive responses to the discovery that has been outstanding from the beginning, as well as producing the responsive documents. Because the Court refrained from bifurcating discovery as Defendant requested, I seek to meet and confer to determine if Defendant will follow through on those previous representations and provide the discovery. Your implication that my willingness to meet and confer has ever been anything other than sincere is without merit and belied by your subsequent statement that the issues are "crystallized and understood." The fact that our positions are "so crystallized and understood" stands in direct contrast to your continued fabrication that the parties have not had extensive and exhaustive "meaningful and thoughtful meet-and-confer" sessions regarding Defendant's deficient responses to Plaintiff s discovery requests. As for a proposal: I propose that Defendant provide substantive supplemental responses to Rog Nos. 6-7 (information to establish the number and ascertain the membership of the class of employees who were subject to the overtime miscalculation); Rog Nos. 11-12 and 14 (Defendant's pay codes and types of compensation used to pay the class); Rog Nos. 15-16 (the Bates numbers o f t h e meal period policies for which Defendant produced documents instead of answering the interrogatory response); Rog No. 19 (the numbers of meal period premiums paid); Rog No. 18 (Class Members' job duties); RFP No 6 (to state that Defendant will produce the Class Members' contact information); RGP Nos. 8 and 11 (Defendant's policies and job descriptions); RFP Nos. 20 and 21 (Class Members' electronic time and payroll records); and RFP No. 22 (Class Members' itemized wage statements). This discovery remains outstanding and it is unclear at this point whether Defendant will adhere to its prior representations that it would provide substantive and complete responses if the Court declines to bifurcate discovery or whether Defendant will repudiate its prior position in favor of further motion practice. (Please also note that Defendant filed the motion to sequence discovery, not Plaintiff, which reveals that your statement below that "[wje believe that the issues between us can be resolved without court intervention" is simply not true and never has been.) If Defendant is willing to provide substantive responses to any o f t h e above discovery, it would be helpful to be able to further refine the issues that must be presented to the Court, if any remain. To that end, please provide a time when you are available to meet and confer telephonically. Thank you, Victoria From: Lee, Stephanie Gail [mailto:stephanie.lee(5)orrick.coml Sent: Friday, March 09, 2018 7:22 AM To: Victoria Rivapalacio : Long, Timothy J. Cc: Norm Blumenthal : Kyle Nordrehaug : AJ B : Shaun Setareh : Stacey Shim : Thomas Segal Subject: RE: Spears v. Health Net - discovery Thank you, Victoria, for your e-mail. We are guardedly optimistic that your willingness to meet and confer is sincere. You have known our position in great deal for months. We started this process in the Fall of 2017, which led to the parties agreeing to tee up our respective positions to Judge Perkins at the last CMC. Judge Perkins then asked the parties to brief the issues so that he could resolve them, which you and we did. (It bears rinentioning that plaintiff Arana has never disputed our position.) For whatever inexplicable reason. Judge Perkins has now elected not to decide these issues but instead to invite the parties to present the issues to Judge Krueger. We are prepared to do so. Because the issues are so crystallized and understood, we ask that you present in writing your proposals to resolve or narrow the issues in dispute. And given the tinning of the situation, there is no reason why you shouldn't be able to do so promptly. Presumably you had blocked out time this morning to prepare for and appear at the hearing. Now you can use that time to send us a proposal. To that end, we request that you present a written proposal before 1:00 p.m. today, which we will consider. If you don't or your proposal is just the "same ole same ole" that you have repeated before, we will have no choice but to conclude that Plaintiff Spears is not interested in meaningful and thoughtful meet-and-confer. By contrast if you do present a meaningful proposal we will respond in kind. We believe that the issues between us can be resolved without court intervention. We always have. We look forward to receiving your proposal today. Thank you, Stephanie Stephanie Gail Lee Miinaging Associaie Ornck Los Angeles ® T+1-213-612-2374 stephanie.lee@orrick.com ornck From: Victoria Rivapalacio [mailto:victoria@bamlawca.coml Sent: Thursday, March 8, 2018 5:29 PM To: Lee, Stephanie Gail : Long, Timothy J. Cc: Norm Blumenthal : Kyle Nordrehaug : AJ B : Shaun Setareh : Stacey Shim : Thomas Segal Subject: Spears v. Health Net - discovery Counsel: Please provide your availability to meet and confer regarding the outstanding discovery issues in light of the Court's order today regarding Defendant's motion to sequence discovery. Thank you, Victoria Rivapalacio Attorney Blumenthal Nordrehaug Bhowmik De Blouw LLP 2255 Calle Clara La Jolla, CA 92126 Direct: 858-952-0352 Fax: 858-551-1232 NOTICE TO RECIPIENT | Ttiis e-mail is meant for only ttie intended recipient of trie transmission, and may be a communication privileged by law. If you received this e-mail in error, any review, use, dissemination, distribution, or copying of this e-mail is strictly prohibited. Please notify us immediately of the error by return e-mail and please delete this message from your system. Thank you in advance for your cooperation. For more information about Orrick, please visit http:/Avww.orrick.com. EXHIBIT C 1 TIMOTHY J. LONG (STATE BAR NO. 137591) FILED tjlong@orrick.com Superior Court Of Califon^ia, 2 ORRICK, HERRINGTON & SUTCLIFFE LLP Sacramento 400 Capitol Mall, Suite 3000 3 Sacramento, CA 95814-4497 11/27/2017 Telephone: . .+1 916 447-9200 - 4 Facsimile: +1 916 329 4900 Depi ty B^f Casa Mumbun 5 STEPHANIE GAIL LEE (STATE BAR NO. 285379) stephanie.lee@oirick.com 6 ORRICK, HERRINGTON & SUTCLIFFE LLP 777 South Figueroa Street, Suite 3200 7. Los Angeles, CA 90017-5855 Telephone: +1-213-629-2020 8 Facsimile: +1-213-612-2499 9 Attomeys for Defendant HEALTH NET OF CALIFORNOA, INC. 10 11 SUPERIOR COURT OF THE STATE OF CALIFORNIA 12 COUNTY OF SACRAMENTO 13 ANDREA SPEARS, an individual, on behalf Consolidated Case No. 34-2017-00210560- 14 of herself and on behalf of all persons similarly CU-OE-GDS situated, IS Plaintiff, ASSIGNED FOR ALL PURPOSES TO JUDGE ALAN G. PERKINS. DEPT. 35 16 V. DEFENDANT'S CASE MANAGEMENT 17 HEALTH NET OF CALIFORNIA, INC., a CONFERENCE STATEMENT California Corporation; and Does 1 through SO, 18 inclusive, Date: December 8,2017 Time: 10:30 am. 19 Defendants. DepL: 35 20 Complaint Filed: April 5,2017 FAC Filed: June 29,2017 21 Trial Date: None Set 22 TOMAS R. ARANA, on behalf of himself, aU others similarly situated. Complaint Filed: August 1,2017 23 24 Plaintiff, 25 26 HEALTH NET, INC., a Delaware corporation; and DOES 1-50, inclusive, 27 Defendant. 28 OHSUSA:767725203J DEFENDANT'S CASE MANAGEMENT CONFERENCE STATEMEKT 1 Defendant Health Net of California, Inc. C'Health Net") submits the following Case 2 Management Conference Statement in advance of the Case Management Conference set for 3 December 8,2017 at 10:30 am. 4 L CASE SUMMARY 5 Plaintiffs initially filed their wage-and-bour class and representative claims against Health 6 Net in sqiarate actions. The Court, following a stipulation between the parties, consolidated and 7 assigned the cases for all purposes to this Dq)artment Specifically and coUectively, Plaintiffs 8 allege that Health Net failed to provide them and putative class members with meal and rest breaks, 9 pay them all hourly wages, properly calctilate their regular rate of pay and, derivatively, failed to 10 provide them with accurate wage statements, failed to timely pay them allfinalwt^es and engaged 11 unfidr competitioiL Health Net denies that Plaintiff can meet the requirements to certify a class 12 and that Plaintiffs and the individuals they seek to represent are aggrieved. Health Net also disputes 13 Plaintiffs* claims on the merits. 14 IL PROCEDUB Al • m.STORV 15 A. The Soears Matter 16 Plaintiff Speais is a former customer service representative for Health Net For 17 approximately two years, she worked at one of Health Net's call centers located in Rancho Cordova, 18 California. She filed her putative class action complaint against Health Net on April 5, 2017, 19 purporting to represent approximately 4,800 cunent and former non-exempt Health Net employees 20 in CalifomiafromApril 5,2013 to the present On or about June 29,2017, Plaintifffiledher First 21 Amended Complaint ("FAC") adding Private Attomeys General Act C^AGA") allegations. She 22 alleges that Health Net did not properly include "cash" received by her and putative class members 23 who waived certain coverage under its health and welfiire benefits plan in their regular rate of pay, 24 that Health Net did not include other "bonus" payments in their regular rale of pay, and that Health 25 Net failed to provide them with meal and rest breaks. Health Netfiledits Answer to Plaintiff 26 Spears' FAC on August 9,2017 denying all of these claims. 27 28 OHSUSA:767725203.5 DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT 1 B. The y4rgna Matter 2 Plaintiff Arana has held various non-exempt and exempt positions during his employment 3 with Health Net including, currently, Call Center Systems Analyst I. At all times during his 4 employment. Plaintiff Arana has worked at one of Health Net's call center locations in Rancho 5 Cordova - die same one at which Plaintiff Spears worked. Plaintiff Arana filed his Complaint 6 against Health Net in this Court on August 1,2017. He purports to represent: 7 (1) "Non-Exempt Class: All persons employed by Heath Net . . . and/or any stafBng 8 agencies and/or any other third parties' who worked in a call center in hourly or non-exempt 9 positions in California;" 10 (2) "Exempt Class: All persons employed by Health Net... and/or any staffing agencies II and/or any othertibdrdparties in Califomia as a Business Analyst, Systems Analyst, Contact Center 12 Analyst or Analyst;" 13 (3) "Roundii^ Class: All persons employed by Health Net... and/or any staffing agencies 14 and/or any other third parties .in Califomia whose hours worked were affected by [Health Net's 15 alleged] rounding practices;" and 16 (4) "UCL Class: All Non-exempt Class, Exempt Class and Rounding Class members 17 employed by [HealthNet] in Califomia." 18 Collectively, Plaintiff Arana purports to represent approximately 260 additional current and 19 former exempt employees of Health Net with the job titles containing the word "Analyst" He 20 alleges that Health Net failed to provide him and other putative class members with meal and rest 21 breaks, failed to pay them for all hours woriced due to its alleged rounding practice and for not 22 compensating for time pre- and post-shift time spent logging in and out of their computers, and 23 improperly calculated their regular lates'of pay by failing to include nondiscretionary bonuses and 24 shift differential pay. Plaintiff Arana also alleges that Health Net misclassified him and certain 25 others as exempt. Health Netfiledits Answer on September 6,2017 denying all of these claims. 26 On or about October 3,2017, Plaintiff Arana served Health Net with his proposed amended 27 complaint However, Health Net thereafter received a copy of the "Notice to Filing Party - 28 ' No staffing agencies or third parties have been named as defendants. OHSUSA:767725203.5 " ^" DEFENDANT'S CASE MANAGEMENT CONFERENCE STATEMENT 1 Returned Documents"fiomthe Court noting that the Court was unable to process Plaintiff Arana's 2 proposed amended complaint Health Net has not, to date, been served with a revised proposed 3 amended complaintfromPlaintiff Arana. 4 C. Consolidation 5 On October 11,2017, pursuant to the stipulation of all patties, the Court consolidated the 6 Spears and Arana matters for all purposes, assigned the matter to this Departmentforall purposes. 7 and assigned the case a new case number. Attached hereto as Exhibit A is a true and correct copy 8 of the October 11,2017 Stipulation and Order Regarding Consolidation. 9 in. PLEADINGS 10 Following the Court's consolidation ofthe Spears and Arana matters, counsel for Health 11 N ^ initiated meet and confer discussions with Plaintiffis' counsel regarding their pleadings. 12 Specifically, Health Net's counsel requested that PlaintifEs file a consolidated complaint to help 13 streamline the litigation going forward. As Health Net's counsel explained, it is difficult to 14 understand how the parties will smoothly litigate this case as one matter when there are two 15 operative complaints at issue. This is especially the case given that the two. complaints allege 16 overlapping claims involving overiapping subclasses covering overlapping periods of time. 17 The complications arisingfiomthis overly have already presented in the context of written 18 discovery. For example, both Plaintiffs have sought the identities of putative class members and 19 the parties have agreed to the use of one opt-out notice. However, given the ambiguity that has 20 resulted due to the overlap in subclasses,°the parties have not been able to reach an agreement as to 21 who, exacdy, should receive the notice. See Section V.B. below. Having one consolidated 22 complaint that defines the putative classes for this one consolidated action only makes sense. 23 With respect to motion practice, a consolidated complaint will also streamline matters - not 24 only for the parties but also the Court. For example, should Health Net determine that this matter 25 is suitable for disposition on summary judgment must it bring two separate motions?^ Given die 26 overlap of claims, subclasses and periods of time described above, it would seem that the answer 27 28 ' As Health Net notes below, it believes that Plaintiff Spears' and Plaintiff Arana's regular rate and rbimding claims are susceptible to summary adjudication. OHSUSA:767725203.5 -3- DgENDANT'S CASE MANAGEMENT CONFERENCE STATEMENT 1 would have to be "yes." Otherwise, how will the parties and the Court be able to determine whether 2 any given cause of action should be dismissed in its entirety? 3 This quandary is even further exacerbated should this matter survive summary judgment 4 and proceed to trial. If the parties themselves have become confiised by who is included in the 5 putative class, then how is a jury to undostand who are in the putative classes and v/bo are not? 6 Issues presented by the overlap aside, there are other practical reasons v/hy Plaintiff should 7 file a consolidated complaint As Health Net's counsel also noted during the parties' meet and 8 confer, consolidation would permit Plaintiff the opportunity to clarify their pleadings. 9 Specifically, Plaintiff Spears' FAC is vague and ambiguous with regard to her regularrateclaim 10 and Plaintiff Arana states in his Complaint that he purports to represent employees Health Net does 11 not and has not ever employed. 12 Notwithstanding counsel's meet and confer discussions. Plaintiffs dected not tofilean 13 amended complaint Health Net proposes consideration of this matter at the Case Management 14 Conference and requests that the Court order Plaintiffs to file a single complaint consolidating tiieir 15 claims. 16 IV. HEALTH NET'S CONTENTIONS 17 A. Class Certification 18 Health Net contends that Plaintiffs will be unable to certify a class, or any of the proposed 19 subclasses. This case involves a complicated patchwork of alleged subclasses and certification 20 theories attempting to sweep in thousands of putative class members in hundreds of different job 21 tities over the course of over four years during which Health Net has undergone a shift in ownership 22 and, as a result, change in certain relevant policies and procedures. Adjudication of Plainti£&* 23 claims on a class-wide basis is simply untenable. 24 For example, with respect to the putative subclass of non-exempt employees, at all relevant 25 times. Health Net maintained legidly compliant policies regarding hourly compensation, recording 26 oftimeworked and breaks taken, provision of meal and rest breaks, calculation of employees' 27 regular rate of pay for purposes of overtime compensation, payment of wages at termination and 28 provision of wage statements. Individualized inquiries are necessary to determine whether any OHSUSA:7677252(O.S "^ " DEFENDANT.'S CASE MANAGEMENT CONFERENCE STATEMENT 1 ^ployee was not provided compliant meal or rest breaks or premiums or properly waived them, 2 was due unpaid wages including overtime, received correct wage statements and/or was injured by 3 these wage statements, and/or did not receive all wages due at termination. This is especially true 4 given that putative class members worked at different locations, for different employers, \mda 5 diffo'ent timekeeping systems, in a plethora of different positions with varying job requirements, 6 under different supervisors and under different working conditions - e.g., even Health Net's two 7 call centers vary in services provided and employee responsibilities depending on such things as 8 supervisor preferences and customers serviced. Thus, the circumstances of Plaintiffs' employment 9 when they were non-exempt employees of Health Net differfiomthose of other putative class 10 members. Further, the circumstances regarding Plaintiff' timesheet and timekeeping records 11 dating back to when they were employed by Health Net as non-exempt employees evidence 12 individual differences, including whether they property recorded their hours and whether and how 13 they followed Health Net's reasonable policies and procedures. To the extent Plaintiff failed to 14 follow Health Net's timekeeping policies and procedures, they cannot represent employees who 15 did In fact, in the matter ofShaunetta Eddlng^ v. Health Net, Inc., Central District of California 16 Case No. 2:10-cv-01744-JLS-RZ, the plaintiffs sought to certify meal period and off-the-clodc 17 claims brought on behalf of the very same call center employees as Plaintiff seek to represent YIGK 18 The Court there refused to certify these claims for reasons that will likely drive the analysis in this 19 case. 20 Moreover, as to the putative subclass of employees that Plaintiff Arana claims was 21 misclassified as exempt, class certification is likewise ins^qnopriate. For example, the woric 22 actually p»formed by Plaintiff Arana as an exempt Call Center Systems Analyst I in any given 23 week varies greatly - not onlyfiomthe work actually performed by other Call Center Systems 24 Analysts and other members ofthe "Exempt Class" he purports to represent, but it also varies week 25 by week even for himself. For example, the work Plaintiff Arana actually performs as a Call Center 26 Systems Analyst I in any given week depends heavily on such factors as the project on vM.ch he is 27 working, how many employees he is supervising on the project, who he reports to for the project, 28 whether he has multiple projects going on at once, and so on. OHSUSA:767725203.S "^ " DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT 1 In terms ofthe type and substance of work actually performed in any given week, members 2 of the "Exempt Class" vary significantiy. For example, since Plaintiff Arana works in a call center, 3 his overarching duties include making recommendations for and executing improvements to call 4 center policies and procedures. He also serves as a subject matter expert for the call center by 5 researching and helping to address root causes of escalated issues and ensuring timely resolution. 6 Moreover, he takes the lead on various call center projects, identifies requirements for new 7 processes and procedtires, and makes recommendations for system enhancements. By contrast, for 8 example. Business Analysts who work in the current G&A Claims Administration department are 9 generally responsible for analyzing claims that have been escalated to the Legal Department for 10 purposes of evaluating the significance, level of exposure and correct outcome of claim 11 adjudication. This process entails reviewing individual claims and making recommendations on 12 the outcomes of the disputes, which are supported by the individual Business Analysts' findings, 13 analysis and data. Business Analysts in this group are tasked with understanding and interpreting 14 the specific terms ofthe contract at issue in order to make a determination of whether a claim has 15 been processed correctiy, and identifying any discrepancies that explain or help resolve the 16 escalation of the matter to Legal. Suffice to say, work actually performed by members of the 17 "Exempt Class" in any given workweek varies greatiy. 18 In addition to these variances, if any member of Plaintiff Arana's "Exempt Class" did not i9 spend at least half his or her workweek performing exempt duties, whether that onployee's 20 performance was consistent with Health Net's realistic expectations also necessitates an 21 individualized inquiry. ' 22 These are just some of the reasons why Plaintiffs cannot meet class certification 23 requirements. 24 Health Net suggests that the Court set a deadline for class certification motions that is five 25 months away. 26 B. Merits 27 Certification issues aside, Plaintiffs' allegations are meritiess. For instance, Plamtiff 28 Spears' regular rate claim - premised on her theorytiiat"cash" received by her and other non- OHSUSA:76772S203.S "^ ' DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT 1 exempt employees who vt^ved certain coverage under Health Net's health and welfare benefits 2 plan wore improperly excludedfromtheir regular rate of pay - is baseless. Infeet,these payments 3 were properly excluded from employees' regular rate of pay. See 29 U.S.C. § 207(e)(4); see also 4 29 CFJt. § 778.215. Plaintiff' other stated grounds for unpaid overtime - namely non-inclusion 5 of nondiscretionary bonuses and shift differentials in their regularrate- are similariy baseless. 6 Indeed, during the relevant time period, the only bonus payments not included in non-exempt 7 employees' regular rates of pay were discretionary. By contrast, all nondiscretionary bonuses 8 payments (and shift differentials) were included. Thus, Plaintiffs' regularrateclaims are 9 susceptible to summary adjudication and Health Net intends tofilea motion promptiy to dispose 10 of them. 11 As for Plaintiff Arana's rounding claim, summary adjudication is also 8|)propriate for the 12 simple fact that Health Net does not round its employees' recorded time for purposes of generating 13 paychecks. Should Plaintiff Arana persist witii this claim. Health Net willfilea dispositive motion. 14 C. PAGA and ManageabiHtv 15 For the same reasons outlined above, Health Net contends that Plaintiff Spears is not an 16 aggrieved employee and cannot, therefore, seek to represent others under the PAOA.^ Moreover, 17 Health Net maintains that any trial of Plaintiff Spears' PAGA claim is unmanageable. To that end. 18 Health Net anticipates brin^g a motion challenging Plaintiff Spears' representative action 19 allegations. 20 V. DISCOVERY 21 A. Health Net's Proposed Discovery Plan; Phased Discovery 22 Plaintiff Spears and Plaintiff Arana have separately propounded written discovery on Health 23 Net Specifically, Plaintiff Spears propounded: 24 • 14 Requests for Admission; 25 • 25 Requests for Production of Dociunents; 26 • 26 Special Interrogatories; and 27 28 ' As mentioned above, while Plaintiff Arana attempted to file an amended complaint alleging PAGA claims, the Court rejected his filing. OHSUSA:76772S203.5 -7- DEFENDANT'S CASE MANAGEMENT CONFERENCE STATEMENT 1 • One set ofEmployment Law Form .Intenrogatories. 2 Plaintiff Arana propounded: 3 • 15 Requests for Admission; 4 • 31 Requests for Production of Documents; 5 • 2 4 Special Interrogatories; and 6 • One set of Employment Law Form Interrogatories. 7 Not surprisingly in light of the overlapping allegations, some of Plaintiff* respective 8 discovery overlaps. This notwithstanding, and pursuant to the agreement reached with Plaintiff' 9 counsel following meet and confer discussions. Health Net will have re^nded substantively to all 10 class certification-related discovery by the time the Case Management Conference is held.^ 11 Just by way of example, as to Plaintiffs' meal break claim. Health Net will have inrovided 12 its policies governing meal periods in response to Plaintiff Spears' Request for Production No. 7. 13 And, Health Net will hove provided a description of its policies and procedures regarding the 14 provision of meal breaks in response to Plaintiff Arana's Special Interrogatory No. 14. However, 15 Health Net will not have responded substantively to Plaintiff Spears' Special Interrogatory No. 19 16 seeking the total number of meal period premiums paid to putative class members or Plaintiff 17 Arana's Special Interrogatory No. 17 seeking the total dollar amount in meal period premiums paid 18 to putative class members. 19 Health Net maintains that the latter seek data unrelated to >^ether any class should be 20 certified, and requeststiiatthe Court issue an order phasnig discovery on Plaintifis' meal and rest 21 break, off-the-clock and misclassification claims.^ Health Net believes that bifurcating discovery 22 - limiting thefirstphase of discovery to class certification-related issues on Plaintiff' meal and 23 rest break, off-the-clock and misclassification claims - will streamline discovery efforts and 24 ultimately save all partiesfromengaging in costiy merits-based discovery because Plaintiff will 25 not be able to satisfy the requirements for class certification on these claims. Indeed, many courts 26 * As to Plaintiff' regularrateand roxmding claims, however. Health Net will have provided merits- 27 related discovery responses by the time the Case Management Conference is held in anticipation of its forthcoming summary adjudication motion. 28 ' Pursuant to stipulation, the parties have agreed to extend Plaintiff Spears' motion to compel deadline to December 15,2017 so that the Court may rule on this issue. OHSUSA:76772S203J "^ ' DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT 1 recognize the economic benefits of bifurcating discovery and issue orders accordingly per section 2 2019.020(b) oftiieCode of Civil Procedure. 3 B. ^gfafra-Wert Notice 4 As mentioned above, both Plaintiffs sought contact information of putative class members 5 in their written discovery to Health Net. Health Net agreed to provide such information followiiig 6 notice to putative class members of the disclosure and the opportunity for them to opt out, and 7 Plaintiff Spears agreed to cover the cost. Unresolved is the contmt of the notice. Despite Health 8 Net's counsel's multiple efforts to schedule a meet and confer telephone call with all counsel, sudi 9 a call has not occuned and all parties have not been able to discuss the content 10 Plaintiff Spears cut short meet and confer opportunities byfilinga "Motion for Order for 11 Opt-Out Privacy Notice To Be Sent To The Class Members" ("Motion") on November 16,2017. 12 Curiously, shefiledher motion in Department 54 before Judge Cadei, even though this matter was 13 assigned to this Court on August 1, 2017, which was later confirmed by the Stipulation and Order 14 signed by all parties and entered by the Court on October 11, 2017. See Exhibit A (reflecting 15 assignment of this matter "for all purposes to Judge Alan G. Perkins, Dept 35"). 16 Procedural matters aside, logic dictates that this Court should hear the Motion since it is 17 managing this case. Indeed, Health Net sees no reason why this issue cannot be tackled at the Case 18 Man^ement Conference.^ Health Net believes that Plaintiffsfilinga consolidated complaint (see 19 Section III. above) will solve the "impasse" that Plaintiff Spears claims to need resolution in her 20 Motion. For example, with regard to the language of thie proposed Belaire-West Notice identifying 21 the recipients. Plaintiff Spears proposed sending the Notice only to: 22 CURRENT AND FORMER NON-EXEMPT EMPLOYEES 23 EMPLOYED BY HEALTH NET OF CALIFORNIA, E^C. BETWEEN APRH. 5,2013 AND THE PRESENT 24 See Exhibit B. 25 If she has her way, however, it appears based on the phraseology of Plaintiff Arana's 26 Complaint that the entirety of the "Exempt Class" will not receive the Notice. Health Net further 27 28 ^Healdi Net anticipates filing and serving its Opposition to the Motion on December 5, 2017. Health Net will provide the Court with a courtesy copy of its. opposition brief upon filing. (M«USA:76772S203.5 -9- DEFENDANTS CASE MANAGEMENT CONFERENCE STATEMENT 1 maintains that the opt-out procedure should only occur once m this matter for many reasons, the 2 least of which is that the burden of undergoing the process twice (or more) completely undercuts I 3 the efficieiM:y drivers behind consolidation in the first place. In fact, the parties have agreed that 4 one notice makes the