Judge: David S. Cunningham, Case: 20CHCV00209, Date: 2022-08-17 Tentative Ruling
Case Number: 20CHCV00209 Hearing Date: August 17, 2022 Dept: 11
LOS
ANGELES SUPERIOR COURT, COMPLEX CIVIL DEPARTMENT
CHECKLIST
FOR
PRELIMINARY
APPROVAL OF CLASS ACTION SETTLEMENT
Department:
SSC-11
RE:
Whitmer v. USP Mission Hills, Inc. (Case No. 20CHCV00209)
In reviewing your motion
for preliminary approval of class action settlement, the Court orders further
briefing on the items checked below.
The additional briefing
shall be due by ____________________________________, 2022. Note: if briefing is not filed by said date
the hearing will be placed off calendar. Your hearing date set for ______________, is
continued to the first available date of
__________ at _____ in Department 11.
This checklist
provides direction on what information and argument the court requires to grant
a motion for preliminary approval of a class action settlement. All parties are urged to carefully review the
checklist and fully comply with each item that applies to the case in order
that the motion may be promptly ruled upon. The content of the motion should follow the
same order as this checklist, as that is how the judge and research attorney
review the motion.
You should also consider using the form wage and hour
settlement agreements now available on the court’s website at https://www.lacourt.org/forms/all – “Civil Forms” section.
With input and unanimous consensus from an Ad Hoc Wage and Hour
Committee (chaired by Judge Hogue and Judge Cunningham and comprised of 8
plaintiff’s attorneys and 8 defense attorneys), the court has posted: (1) a form class action settlement
agreement, (2) a form class action/PAGA settlement
agreement, (3) and a form PAGA settlement agreement. Using these
forms should cut down on attorney negotiation time and reduce the lag time
between a successful mediation and execution of a long form agreement. Filing a motion that is based on a form
agreement and includes a redlined copy identifying modifications will also
expedite the court’s review process and help reduce the current backlog on
hearings. These forms are encouraged but
entirely optional.
I.
MOVING PAPERS (Motion and Declarations)
All facts
submitted for the court to consider must be provided in the form of a
declaration or other admissible evidence. The court will not consider facts
stated only in the motion.
A. Introductory Information
¿ Summary
of the litigation, including identity of the parties, brief procedural history,
claims asserted, and general factual
basis for the claims.
B. Dunk/Kullar Analysis
¿ Summary
of the case, including the legal and factual basis for each claim. (Kullar
v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 133 (Kullar);
Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186
Cal.App.4th 399, 409.)
¿ Summary
of the investigation and discovery conducted, including the specific documents reviewed prior to agreeing
to settle the case. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802, as modified
Sept. 30, 1996 (Dunk).) If counsel’s analysis was informed by a data sample, show that the sample is
statistically reliable.
¿ Summary of settlement
negotiations, including when the settlement was reached, and
whether the
parties were assisted by a mediator. (Dunk, supra, 48 Cal.App.4th at p. 1802.)
¿ A
summary of the risks, expenses, complexity, and duration of further litigation
if the
settlement is not
approved.
¿ A
summary of the risks of achieving and maintaining class action status.
¿
Specific information sufficient for the court to make an independent
determination that the consideration being received for the release of class
members’ claims is reasonable in light of the strengths and weaknesses of the
claims and the risks of the particular litigation. (Kullar, supra, 168
Cal.App.4th at 129.) This
discussion should specify the maximum realistic recovery of each claim asserted
in the operative complaint, defenses asserted by Defendant, and any other
relevant factors justifying the amount offered in settlement. If the settlement
is predicated on a payment plan or is predicated on defendant’s financial
situation, admissible evidence of Defendant’s financial situation should be
provided, including appropriate financial documents such as a balance sheet,
statement of cash flows, profit and loss statement, and the like.
· Was there an
estimated value calculated for the waiting time penalties claim? If not, why? (See
Yaeckel Decl. ¶¶ 19-24.)
¿ If
approval of the settlement of class claims is requested together with approval
of non-class claims (such as claims under the Labor Code’s Private Attorney
General Act (PAGA)) discuss why the amount allocated to the non-class claims
is fair to those affected. See Moniz
v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77 (Moniz).
C. Class
Certification
¿ Numerosity:
Total number of members in the settlement class and number of members in each
sub-class (if applicable).
¿ Ascertainability:
The manner by which members of the class will be identified and when. (Noel
v. Thrifty Payless (2019) 7 Cal.5th 955.)
¿ Community
of Interest: Discuss specific facts showing that the proposed class
representatives have claims or defenses typical of the class and can adequately
represent the class. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
435.)
¿
Adequacy:
Class Counsel: A summary of Class Counsels’ experience
and a listing of all prior cases in which each named Class Counsel has been
approved by a court to act as lead or co-counsel. (See Dunk, supra, 48
Cal.App.4th at p. 1802.)
Class Representative(s): Provide evidence
that each proposed class representative has agreed to act as same and
understands his or her responsibilities.
(See Soderstedt v. CBIZ Southern California, LLC (2011) 197
Cal.App.4th 133, 155-156; Jones v. Farmers Ins. Exchange (2013) 221
Cal.App.4th 986, 998-999).
·
Provide a competent declaration from Plaintiff by which
the Court can ascertain her adequacy as a class representative.
·
Provide further briefing to support the contention that
Plaintiff is an adequate class representative, considering her separate
individual settlement agreement and the additional sum she is to receive from
it. Are the sources of funding between the class settlement and individual
settlement the same? Are attorneys’ fees for class settlement distinct from
attorneys’ fees for the individual settlement, and are their sources the same? Importantly,
why isn’t there a potential conflict of interest between Plaintiff and the
class?
D. Claim
Requirement (if applicable)
¿ If
class members are required to submit a claim to receive compensation, explain
why a claim form is necessary and either 1) provide an estimate of the
anticipated claims rate or 2) provide an explanation why a claims rate cannot
be provided.
¿ Provide
a detailed explanation why a “claims made” settlement is appropriate in this
case.
¿ Indicate
what actions class counsel will take to encourage claim submission.
¿ Explain
why the claims process is not so burdensome that relief would be inaccessible
to class members (if applicable).
E. Miscellaneous
¿ If appropriate, explain
why the settlement includes terms that are outside the scope of the operative
complaint. (Trotsky v. Los Angeles Fed. Savings & Loan Assn. (1975)
48 Cal.App.3d 134, 148.) If approval of settlement of a PAGA claim is
requested, provide a copy of Plaintiff’s notice letter to the LWDA.
¿ If
notice will be given in English only, explain why this is sufficient.
¿ A
statement of any affirmative obligations to be undertaken by the class member
or class counsel and the reason for such obligations.
¿ Provide
information regarding any fee splitting agreement and whether the client has
given written approval. (Mark v. Spencer (2008) 166 Cal.App.4th 219;
Rules Prof. Conduct, rule 1.5.1; Cal. Rules of Court, rule 3.769.)
¿ Any
agreement that has injunctive relief against a class representative generally
is not appropriate in a class action case. Provide the authority and factual
reasons why this case is an exception. See Moniz, supra, 72 Cal.App.5th
at 84. (“[T]he preclusive effect of a prior judgment is determined by the court
in which it is asserted, not the court that rendered it.” (Fireside Bank
Cases (2010) 187 Cal.App.4th 1120, 1131 [115 Cal. Rptr. 3d 80].) )
· Eliminate any language
indicating that this court will enjoin future lawsuits by class members. The court will not issue injunctive relief
against absent class members. The
effectiveness of the release comes from satisfaction of due process
requirements for notice and an opportunity to opt out or be heard. See, e.g., Settlement Agreement ¶¶ 23.e,
28.b.v.
¿ Explanation
as to why any class representative enhancement is reasonable, including what
the class representative did beyond the expected services of any class
representative. (Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010)
186 Cal.App.4th 399, 412; Radcliffe v. Experian Information Solutions Inc.
(9th Cir. 2013) 715 F.3d 1157, 1165.) In PAGA settlements explanation should be
provided as to why an incentive award is appropriate.
SETTLEMENT
AGREEMENT
The settlement
agreement should address the following:
A. The
Basics
¿ Class
definition. If a PAGA representative action is settled with a proposed Class
Settlement consider whether there should be separate definitions for Class
Members and Aggrieved Employees.
¿ Class
and Release Period: If the class and release periods extend beyond the preliminary
approval explain why this is appropriate.
B. Release
of Claims
¿ Scope:
The scope of any release given by class members must be defined with precision
and clarity. Any released claims not presented directly in the operative
complaint should be based on the facts alleged in the operative complaint. (See
Amaro v. Anaheim Arena Mgmt. (2021) 69 Cal. App. 5th 521, 537 and FN. 5;
Uribe v. Crown Building Maintenance Co. 70 Cal. App. 5th 986, 1005.)
· Modify the release
of claims (¶15) to specify that Class Members will only release claims alleged
in, or arising out of facts asserted in, the operative Third Amended Complaint.
¿ Class cases which include a
PAGA claim should have a separate release for the PAGA claim tied to the facts
alleged in the notice given to the LWDA. Id.
¿ If
PAGA and Class Settlement: The Release should provide an explanation that
released claims include all PAGA claims that could have been premised on the
facts alleged in the Plaintiff’s Notice and aggrieved employees will release
PAGA claims even if class members request exclusion from the class. See Robinson
v. Southern Counties Oil Co. (2020) 53 Cal.App.5th 476.
¿ A Civil
Code section 1542 waiver is generally not appropriate in a class action case as
to the putative class members (if applicable). Provide the authority and
factual reasons why this case is an exception. (Israel-Curley v. California
Fair Plan (2005) 126 Cal.App.4th 123, 129; Salehi v. Surfside III
Condominium Owners’ Assn. (2011) 200 Cal.App.4th 1146, 1159–1161.)
· See ¶16. Why would
it be proper for the class to release unknown claims? Wouldn’t that exceed the
scope of the complaint?
¿ Release
Effective Date: Indicate the point in time at which the release will be deemed
effective as to the absent class members. If the release will be effective
before settlement funds are paid, explain why this is in the best interest of
the class.
· See ¶¶ 14, 15. Modify
the effective date of the release to be the date on which Defendant fully funds
the settlement.
¿ Class
Data: If there are confidentiality provisions, explain why they are in the best
interest of the Class and whether they will impede Class Counsel’s ability to
discharge fiduciary duties.
· See ¶26.
C. Monetary Terms of Settlement
¿ Settlement
Amount: Indicate the amount of the gross settlement, how and when the
settlement will be paid, and information regarding
payment plan, if any. If a class claim is being settled with a PAGA claim the
amounts allocated should be separated and paid only to the aggrieved employees.
¿ Deductions
from the settlement fund: Indicate the amounts to be deducted from the gross
settlement for attorneys’ fees and costs, plaintiff incentive awards,
administrative costs, PAGA payment and allocation of award to LWDA and the
parties, and any other existing deductions.
¿ If
there are subclasses, explain why the monetary distribution is fair to each
subclass. Ensure there is a class representative who fits the definition of
each subclass.
¿
Information about how attorney fees will be calculated. The percentage method,
with or without a lodestar cross-check, may be used in common fund cases. (Laffitte
v. Robert Half Internat., Inc. (2016) 1 Cal.5th 480, 503.) In other cases,
counsel should fully brief how the fees are calculated.
¿ If
wages are involved, explain how Defendant’s share of taxes will be paid.
· See ¶19.f. Explain why it would be proper or necessary
for Defendant’s share of payroll taxes to be paid out of the settlement amount. Provide an estimated amount for the
deduction, which must also be disclosed to Class Members in the notice.
¿
Whether, and under what circumstances, amounts may revert to Defendant, and a
justification for such reversion (if applicable). (Cundiff
v. Verizon California, Inc. (2008) 167 Cal.App.4th 718, 728–729.)
¿ Payment
Formula: Amount
and manner of distribution of the compensation to each class member, including
the estimated amount each class member will receive and the timeline on which
payments will be issued.
· Provide a separate
payment formula for the calculation of PAGA penalties to be paid to PAGA
Members, considering the PAGA statute’s applicable statute of limitations.
¿ Tax
allocation of settlement payments.
¿ Nature
of injunctive relief (if any), and valuation of such relief.
D. Notice Administration
The following
issues regarding notice administration should be addressed in the settlement
agreement. A copy
of the proposed notice must be attached to the settlement agreement as an
exhibit.
¿ Indicate the
administrator for the settlement and why the bid for administration is fair.
¿ Provide
the qualifications and experience of the Administrator, including evidence that
the settlement administrator has procedures in place to protect the security of
class data and adequate insurance in the event of a data breach or defalcation
of funds.
¿
Indicate how/when the administrator will receive the class list.
¿
Indicate whether the list will be updated by the administrator prior to the
initial mailing by use of National Change of Address Registry.
¿ Provide
the deadline for the initial issuance of notice to class members.
¿ Ensure
the content of the notice complies with California Rules of Court, rule
3.766(d). In wage and hour cases the notice should indicate the specific amount
the class member will receive and how that amount was calculated. A separate
breakdown for PAGA payments should be provided. The terms of the release(s)
should be reflected in the Notice.
¿ Ensure
the notice accurately reflects the Court’s current social distancing procedures
for attendance at hearings and review of court files. (Counsel should check the
Court website for most current information.)
¿ Indicate
how and when payments will be processed.
¿ Indicate
how notices returned to the administrator as undeliverable will be handled.
· What is the
deadline for the administrator to re-mail any returned notices?
¿Explain how
re-mailed notices, if any, will be handled. Will class members who receive
re-mailed notices be given an extended deadline to respond (i.e., opt-out,
object, and dispute workweeks)?
¿ Explain
how notice of any change of the date or location of the will hearing be given.
¿ Indicate
whether there will be a settlement website. If so, provide the URL.
¿ If
publication notice will be given indicate the timing, locations, and manner by
which publication notice will be disseminated.
¿ Explain
how notice of final judgment will be given to the class. (Cal. Rules of Court,
rule 3.771(b)) (e.g. Posted on claims administrator’s website.)
E. Responses to Notice
¿
Description of the procedures for submitting written
objections, requests for exclusion, claim forms (if applicable) and disputes to
estimated payments.
· A procedure for
class members to submit workweek/payment disputes to the Settlement
Administrator should be provided in the agreement and notice.
¿
Indicate the deadline to submit objections, requests for exclusion, claim forms
(if applicable), and/or disputes to workweeks. Confirm the deadline is
reasonable and that class members who receive re-mailed notices will be given
an extension.
· See ¶1.k. The deadline to submit requests for exclusion,
written objections, and/or disputes to workweeks should be a date 45 or more
days from the date on which notice is initially mailed.
¿ The
objection procedure should be the same as the opt-out procedure, with the only
requirement being that objections be mailed to the settlement administrator and
not filed with the court.
· See ¶10. Class Members should only be required to mail
written objections to the administrator, and not need to file them with the
Court or serve them on counsel.
¿ Do not
include language indicating that class members may only be heard at final
approval if they have complied with all objection procedures or that they must
use specific language to request exclusion, or, if a specific procedure is
sought, explain why it is necessary. In
general, the court will hear from any class member who attends the final approval
hearing and asks to speak regarding his or her objection.
· Make clear in the
agreement and notice that class members may present objections at the final
approval hearing, regardless of whether they submitted a written objection.
F. Cy Pres Distribution
¿ Indicate
the length of time from issuance for which settlement checks will remain valid.
¿ Identify
the fund to which uncashed checks will be directed and detail the steps that
will be taken to ensure compliance with Code of Civil Procedure section 384.
The Court’s Omnibus Trailer Bill of 2018 replaced the language of the prior
statutory distribution scheme under Code of Civil Procedure, section 384 with a
requirement that the Court re-open judgments following the final distribution of
funds to include the cy pres in the judgment and to include the unclaimed
amount, plus an unspecified amount of interest. Such information should be
actively contemplated/provided for within the current terms of the settlement.
¿ Explain
why the cy pres distribution fills the purposes of the lawsuit or is otherwise
appropriate. (State of California v. Levi Strauss & Co. (1986) 41
Cal.3d 460, 472; In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706,
722; Nachshin v. AOL, Inc. (9th Cir. 2011) 663 F.3d 1034, 1038–1041; Dennis
v. Kellogg Co. (9th Cir. 2012) 697 F.3d 858, 865; Code Civ. Proc., § 384.)
¿ Provide
declarations disclosing the interest or involvement (or lack thereof) by any
counsel or party in the governance or work of the cy pres recipient.
G. MISCELLANEOUS
¿ Assure the Settlement Agreement and Notice
are consistent and that the Settlement Agreement has been signed by all parties
and counsel. Carefully proofread both.
· The class and PAGA
releases disclosed to Class Members in the notice should be verbatim to the
releases in the Settlement Agreement.
¿ The
Settlement Agreement and paperwork derivative thereof should not suggest that
the end result of court approval will be dismissal of the Action with prejudice
or entry of a Final Judgment and Order dismissing with prejudice all claims.
See
California Rules of Court, rule 3.769(h).
· See, e.g.,
Settlement Agreement ¶¶ 8.c, 28.b.v.
¿ Misc.: File the Third Amended Complaint as a
standalone document with the Court.
III. EXHIBITS TO
THE MOTION
¿
Provide proof of submission of the proposed settlement agreement to the LWDA.
(Lab. Code, § 2699, subd. (l)(2).)
· This also applies
to any further revised versions of the agreement.
¿ Include
a proposed Judgment, which should not include a dismissal or any findings not
contained in the Final Approval Order. (Cal. Rules of Court, rule 3.769(h).)
¿ All
exhibits should be bookmarked, as set forth in the Presiding Judge’s First
Amended General Order of May 3, 2019 re: Electronic Filing, available on the
Court website.
If the Settlement Agreement is modified pursuant to this
checklist, please submit both a red-lined copy showing changes made as well as
a final version signed by all parties. Do not submit an addendum in lieu of a
full amended settlement agreement including all operative settlement terms.
Modify notice to match any alterations to the Settlement
Agreement.
Date: ___________, 2022
_____________________________
JUDICIAL
OFFICER