Judge: David S. Cunningham, Case: 21STCV02745, Date: 2022-12-08 Tentative Ruling
Case Number: 21STCV02745 Hearing Date: December 8, 2022 Dept: 11
LOS ANGELES SUPERIOR COURT, COMPLEX CIVIL
DEPARTMENT
CHECKLIST FOR
PRELIMINARY APPROVAL OF CLASS ACTION
SETTLEMENT
Department: 11
RE: Chaley Ramirez v. Martin Luther King, Jr.
Healthcare Corporation, et al. (Case No. 21STCV02745)
In reviewing your motion for preliminary approval of class action
settlement, the Court Orders further briefing and evidence 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 ____.
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.
·
Why is it fair that
the settlement amount is only 1.9% of the maximum amount of Defendants’
exposure? (Kluft Decl., ¶¶22-23.)
¿ 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).
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
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].) )
¿
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. (¶1.43.)
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.)
¿ 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.)
¿ 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.
¿ 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.
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.
¿
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.
¿ 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 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.
·
The cy pres recipient
is different on page 5. Is it correct in the agreement or 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.
¿ 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.
¿
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.
¿ The
objection procedure 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.
¿ 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 this clear in the notice as well.
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 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
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).
III. EXHIBITS TO THE MOTION
¿
Provide proof of submission of the proposed settlement agreement to the LWDA.
(Lab. Code, § 2699, subd. (l)(2).)
¿ 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
