Judge: Elaine Lu, Case: 23STCV15144, Date: 2025-02-06 Tentative Ruling

Case Number: 23STCV15144    Hearing Date: February 6, 2025    Dept: 9

Preliminary Approval of Class Action Settlement

Department SSC-9

Hon. Elaine Lu

Alma Camarena v. Alex G. Gladkov Dental Corporation, et al.

Case No.: 23STCV15144

Hearing: February 6, 2025

TENTATIVE RULING

Plaintiff’s Motion for Preliminary Approval of Class Action Settlement is CONDITIONALLY GRANTED CONTINGENT on Counsel adequately addressing the following items:

1.     Release Language: In the class release at ¶5.2, the use of the phrases “of any nature whatsoever,” “in any version of the complaints filed in this Action (any amendments thereto),” and “including but not limited to” may cause the release to exceed the scope of the claims asserted in Plaintiff’s operative complaint. Please modify to specify that Class Members will only release claims alleged in, or arising out of facts asserted in, the operative complaint. Ensure the release language in the class notice is revised to match the revisions to the Settlement Agreement.

2.     Escalator Clause: The escalator clause at Settlement Agreement ¶8 provides Defendant with the option to “cut off the Class Period before the total number of workweeks increases above 10,450) as long as it does so before Plaintiff’s motion for preliminary approval is filed.” The parties must resolve any uncertainty regarding the Class Period end date prior to the Court granting preliminary approval and prior to distribution of the class notice. Based on current records, the parties and/or administrator must review and verify the workweek total, confirm the end date of the Class Period, and remove the period-shortening language from the escalator clause. If necessary, please revise the definition of the Class Period in both the Settlement Agreement and the Class Notice to match.  The parties must file supplemental papers indicating whether the escalator has been triggered based on the number of work weeks, and if so, whether Defendant has decided to exercise the option to cut off the Class Period earlier and the new end date of the Class Period.  Regardless whether the Class Period is shortened, please remove the period-shortening language from the escalator clause.  The notice to class members must also be amended to give proper notice, consistent with Defendant’s election.

Please modify the Class Notice to match any alterations to the Settlement Agreement.

If the Settlement Agreement is modified pursuant to this checklist, please submit both a red-lined copy showing changes made as well as a clean final version signed by all parties. Please do not submit an addendum in lieu of a full amended settlement agreement including all operative settlement terms.  The Court requests that any revised Settlement and any revised Notice be submitted in two formats: (1) a clean version signed by all parties, and (2) a redlined version highlighting changes made from the current Settlement and Notice.  Both formats should be fully text-searchable.

Counsel must file and serve text searchable supplemental documents correcting the above issues no later than March 5, 2025.

A Non-Appearance Case Review is set for March 12, 2025, at 8:30 a.m., Department 9.

BACKGROUND

Plaintiff Alma Camarena sues her former employer, Defendants Alex G. Gladkov Dental Corporation and Alex Gladkov, A Professional Dental Corporation (collectively, “Defendants”), for alleged wage and hour violations. Defendants are in the business of offering orthodontic services and maintain multiple dentist offices throughout Southern California. Plaintiff seeks to represent a class of Defendants’ current and former non-exempt employees.  

On June 28, 2023, Plaintiff filed a Class Action and PAGA Complaint alleging the following causes of action against Defendants: failure to pay all wages, failure to provide meal and rest periods or provide compensation, failure to provide accurate itemized wage statements, failure to timely pay all wages upon separation of employment, failure to reimburse business expenses, unfair competition and a cause of action for civil penalties under the Private Attorneys General Act of 2004, California Labor Code sections 2698, et seq.

On July 24, 2023, the parties mediated before Mike Young, Esq., which ultimately resulted in settlement following continued negotiations and pursuant to the Mediator’s Proposal. Terms are finalized in the long-form Joint Stipulation of Class Action and PAGA Settlement and Release (“Settlement Agreement”), a copy of which is attached to the Declaration of David Alami (“Alami Decl.”) as Exhibit 1.

Now before the Court is the Motion for Preliminary Approval of the Settlement.

SETTLEMENT CLASS DEFINITION

·       “Class” means all non-exempt employees who worked for Defendants in the State of California at any time during the Class Period. (¶1.5)

·       “Class Period” means the period from June 28, 2019 through the date of preliminary approval. (¶1.12)

·       “Aggrieved Employee” means all non-exempt employees who worked for Defendants in the State of California at any time during the PAGA Period. (¶1.4)

·       “PAGA Period” means the period from April 16, 2022 through the date of preliminary approval. (¶1.34)

·       “Participating Class Member” means a Class Member who does not submit a valid and timely Request for Exclusion from the Settlement. (¶1.38)

TERMS OF SETTLEMENT AGREEMENT

The essential terms are as follows:

·       The Gross Settlement Amount (“GSA”) is $225,000, non-reversionary. (¶3.1)

o   Escalator Clause: Based on its records, Defendants has represented that there are approximately 9,500 workweeks as of September 18, 2024, and Plaintiff is entering into this settlement based in part on that representation. In the event it is determined that the actual number of workweeks in the Class Period exceeds 9,500 by more than 10%, then Defendants, at its option can either choose to, (1) increase the Settlement Sum by $23.68 per workweek for each additional workweek in excess of 10,450 workweeks (the 10% escalation limit) or (2) cut off the Class Period before the total number of workweeks increases above 10,450) as long as it does so before Plaintiff’s motion for preliminary approval is filed. (¶8)

·       The Net Settlement Amount (“Net”) ($100,000) is the GSA minus the following:

o   Up to $78,750 (35%) for attorney fees (¶3.2.2);

o   Up to $20,000 for litigation costs (Ibid.);

o   Up to $10,000 for a Service Payment to the Named Plaintiff (¶3.2.1);

o   Up to $6,250 for settlement administration costs (¶3.2.3); and

o   Payment of $10,000 PAGA penalty (75% or $7,500 to the LWDA). (¶3.2.5)

·       Defendant will separately pay any and all employer payroll taxes owed on the Wage Portions of the Individual Class Payments. (¶3.1)

·       There is no claim form requirement. (¶3.1)

·       Individual Settlement Payment Calculation: Each Participating Class Member will receive an Individual Class Payment calculated by (a) dividing the Net Settlement Amount by the total number of Class Period Workweeks worked by all Participating Class Members during the Class Period and (b) multiplying the result by each Participating Class Member’s Class Period Workweeks. (¶3.2.4) Non-Participating Class Members will not receive any Individual Class Payments. The Administrator will retain amounts equal to their Individual Class Payments in the Net Settlement Amount for distribution to Participating Class Members on a pro rata basis. (¶3.2.4.2)

o   PAGA Payments: The Administrator will calculate each Individual PAGA Payment by (a) dividing the amount of the Aggrieved Employees’ 25% share of the PAGA Penalties ($2,500.00) by the total number of PAGA Pay Periods worked by all Aggrieved Employees during the PAGA Period and (b) multiplying the result by each Aggrieved Employee’s PAGA Pay Periods. (¶3.2.5.1)

o   Tax Allocation: Each Participating Class Member’s Individual Class Payments will be allocated as follows: 33% as wages, 67% as interest and penalties. (¶3.2.4.1) The Administrator will report the Individual PAGA Payments on IRS 1099 Forms. (¶3.2.5.2)

·       Response Deadline: “Response Deadline” means 45 days after the Administrator mails the Class Notice to Class Members and Aggrieved Employees, and shall be the last date on which Class Members may: (a) fax, email, or mail Requests for Exclusion from the Settlement, or (b) fax, email, or mail his or her Objection to the Settlement. Class Members to whom the Class Notice are resent after having been returned undeliverable to the Administrator shall have an additional 14 calendar days beyond the date the Response Deadline has expired. (¶1.46) The same deadlines apply to the submission of workweek disputes. (¶7.6)

o   If the number of valid Requests for Exclusion identified in the Exclusion List exceeds 10% of the total of all Class Members, Defendants may, but is not obligated, elect to withdraw from the Settlement. (¶9)

·       Funding of Settlement: Defendants will fully fund the Gross Settlement Amount, and also fund the amounts necessary to fully pay Defendants’ share of payroll taxes by transmitting the funds to the Administrator no later than 14 days after the Effective Date. (¶4.3)

·       Disbursement: Within 10 days after Defendants fund the Gross Settlement Amount, the Administrator will mail checks for all Individual Class Payments, all Individual PAGA Payments, the LWDA PAGA Payment, the Administration Expenses Payment, the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment, and the Class Representative Service Payment. Disbursement of the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment and the Class Representative Service Payment will not precede disbursement of Individual Class Payments and Individual PAGA Payments. (¶4.4)

·       Uncashed Settlement Checks: The face of each check will prominently state the date (not less than 180 days after the date of mailing) when the check will be voided, which will be 180 days (hereinafter “Void Date”). (¶4.4.1) For any Class Member whose Individual Class Payment check or Individual PAGA Payment check is uncashed and cancelled after the Void Date, the Administrator will transmit the funds represented by such checks to the California Controller's Unclaimed Property Fund in the name of the Class Member thereby leaving no "unpaid residue" subject to the requirements of California Code of Civil Procedure Section 384, subd. (b). (¶4.4.3)

·       The settlement administrator will be Phoenix Class Action Administration Solutions. (¶1.2)

• Notice of Final Judgment will be posted on the Settlement Administrator’s website. (¶7.8.1)
• The proposed Settlement Agreement was submitted to the LWDA on December 4, 2024. (Alami Decl., Exhibit 3.)  
• Participating class members and the named Plaintiff will release certain claims against Defendant.  (See further discussion below)

ANALYSIS OF SETTLEMENT AGREEMENT

1.     Does a presumption of fairness exist? 

1.   Was the settlement reached through arm’s-length bargaining?  On July 24, 2023, the parties mediated before Mike Young, Esq., which ultimately resulted in settlement following continued negotiations and pursuant to the Mediator’s Proposal. (Alami Decl. ¶12.)  

2.   Were investigation and discovery sufficient to allow counsel and the court to act intelligently?  Class Counsel represents that Plaintiff and Defendants engaged in informal discovery prior to resolving the Action. This included but was not limited to: the informal production of timekeeping and payroll records during the Class Period for 124 out of the 131 Class Members; the production of the relevant employment policies during the Class Period and other documents relevant to the litigation ahead of mediation. Plaintiff hired an expert to analyze the produced timekeeping and payroll data with respect to potential damages and penalties in preparation for mediation. (Id. at ¶11.)

3.   Is counsel experienced in similar litigation?  Yes. Class Counsel is experienced in class action litigation, including wage and hour class actions. (Id. at ¶7.)

4.   What percentage of the class has objected?  This cannot be determined until the fairness hearing.  See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2014) ¶ 14:139.18, (“Should the court receive objections to the proposed settlement, it will consider and either sustain or overrule them at the fairness hearing.”).

            CONCLUSION:  The settlement is entitled to a presumption of fairness.

2.     Is the settlement fair, adequate, and reasonable?

1.     Strength of Plaintiff’s case.  “The most important factor is the strength of the case for plaintiff on the merits, balanced against the amount offered in settlement.”  (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) Here, Class Counsel has provided information, summarized below, regarding the estimated values of the class claims alleged:

(Alami Decl. ¶¶16-22.)  

        2.   Risk, expense, complexity and likely duration of further litigation.  Given the nature of the class claims, the case is likely to be expensive and lengthy to try.  Procedural hurdles (e.g., motion practice and appeals) are also likely to prolong the litigation as well as any recovery by the class members.

3.   Risk of maintaining class action status through trial.  Even if a class is certified, there is always a risk of decertification.  (See Weinstat v. Dentsply Intern., Inc. (2010) 180 Cal.App.4th 1213, 1226 (“Our Supreme Court has recognized that trial courts should retain some flexibility in conducting class actions, which means, under suitable circumstances, entertaining successive motions on certification if the court subsequently discovers that the propriety of a class action is not appropriate.”).)

4.   Amount offered in settlement. Plaintiff’s counsel estimated Defendant’s maximum damages at $2,713,458 and realistic damages at $567,340.82. Plaintiff’s counsel obtained a $225,000 non-reversionary settlement. This is approximately 8.3% of Plaintiff’s potential maximum recovery and 39.7% of the estimated realistic recovery which, given the uncertain outcomes, is within the “ballpark” of reasonableness.

The settlement amount, if reduced by the requested deductions, leaves approximately $100,000 to be divided among approximately 131 class members. Assuming full participation, the resulting payments will average approximately $763.35 per class member.

5.   Extent of discovery completed and stage of the proceedings.  As indicated above, at the time of the settlement, Class Counsel had conducted sufficient discovery.

6.   Experience and views of counsel.  The settlement was negotiated and endorsed by Class Counsel who, as indicated above, is experienced in class action litigation, including wage and hour class actions. 

7.   Presence of a governmental participant.  This factor is not applicable here.

8.   Reaction of the class members to the proposed settlement. The class members’ reactions will not be known until they receive notice and are afforded an opportunity to object, opt-out and/or submit claim forms.  This factor becomes relevant during the fairness hearing.

      CONCLUSION:  The settlement can be preliminarily deemed “fair, adequate, and reasonable.”

3.     Scope of the release

Release of Claims. Effective on the date when Defendants fully fund the entire Gross Settlement Amount and fund all employer payroll taxes owed on the Wage Portion of the Individual Class Payments, Plaintiff, Class Members, Aggrieved Employees, and Class Counsel will release claims against all Released Parties as follows: (¶5)

·       Release by Participating Class Members: All Participating Class Members, on behalf of themselves and their respective former and present representatives, agents, attorneys, heirs, administrators, successors, and assigns, release Released Parties from any and all claims, causes of actions, demands, debts, obligations, penalties, damages or liability of any nature whatsoever, known or unknown, based on or arising out of the facts, circumstances, or primary rights that were alleged, or reasonably could have been alleged, in any version of the complaints filed in this Action (any amendments thereto), including but not limited to: (1) failure to pay wages (including but not limited to overtime pay, double time, minimum wage, regular wages, vacation pay, sick pay, and wages at the regular rate of pay); (2) failure to provide meal periods or pay meal period premiums at the regular rate of pay; (3) failure to authorize or permit rest periods or pay rest period premiums at the regular rate of pay; (4) failure to timely pay all wages during employment; (5) failure to pay all wages due to discharged or resigned employees, or other benefits; (6) failure to maintain required records; (7) failure to reimburse necessary expenditures; (8) claims for interest, penalties, or premiums in connection therewith; (9) claims for failure to comply with the employee itemized wage statement provision under California Labor Code section 226; (10) penalties for violations of the California Labor Code; (11) violation of California Business and Professions Code Section 17200, et seq.; and (12) all other claims under California common law, the California Labor Code, California Wage Orders, the California Business and Professions Code set forth in the Operative Complaint including alleged violation of California Labor Code sections 201-204, 206, 210, 226, 226.7, 227.3, 246, 510, 512, 558, 1182.12, 1194, 1194.2, 1197, 1198, 2800, 2802, and California Code of Civil Procedure section 1021.5, 3287, 3288, California Business and Professions Code sections 17000 and 17200 et. seq., the applicable Wage Orders issued by the Industrial Welfare Commission, or any other claim for any statutory or civil penalty that have been, or could have been, asserted based on the facts, circumstances, or primary rights alleged in the Operative Complaint under California law that arise from the allegations as pled including claims for damages, reimbursement, restitution, losses, penalties, fines, liens, attorney’s fees, costs, expenses, debts, interest, injunctive or declaratory relief, liquidated damages or similar relief. The Final Judgment will cover and bar each and every Participating Class Member from asserting any Released Claims in the future. Except as set forth in Section 5.3 of this Agreement, Participating Class Members do not release any other claims, including claims for vested benefits, wrongful termination, violation of the Fair Employment and Housing Act, unemployment insurance, disability, social security, workers’ compensation, or claims based on facts occurring outside the Class Period. (¶5.2)

·       Release by Aggrieved Employees: All Aggrieved Employees are deemed to release, on behalf of themselves and their respective former and present representatives, agents, attorneys, heirs, administrators, successors, and assigns, the Released Parties from all claims for PAGA penalties that were alleged, or reasonably could have been alleged, based on the PAGA Period facts stated in the Operative Complaint and any amendments thereto, the PAGA Notice, and ascertained in the course of the Action, including any and all claims for PAGA penalties involving any alleged unpaid wages, including but not limited to, failure to pay minimum wages, straight time compensation, overtime, and double time compensation; failure to timely pay regular and final wages; failure to pay the proper rate of pay for overtime, meal and rest period premiums, vacation pay, and sick pay; failure to provide meal and rest periods or provide premium pay; failure to provide accurate itemized wage statements; failure to keep accurate records of wages paid and hours worked; failure to reimburse business expenses; and attorneys’ fees and costs. (¶5.3)

o   “PAGA Notice” means Plaintiff’s April 16, 2023 letter to Defendants and the LWDA providing notice pursuant to Labor Code section 2699.3, subd.(a). (¶1.36)

o   Because future PAGA claims are subject to claim preclusion upon entry of the Judgment, Non-Participating Class Members who are Aggrieved Employees are deemed to release the claims identified in Paragraph 5.3 of this Agreement and are eligible for an Individual PAGA Payment. (¶7.5.4)

·       “Released Parties” means: Defendants, and each of their current and former directors, officers, shareholders, owners, members, attorneys, insurers, predecessors, successors, assigns, employees, managing agents, subsidiaries, parents, affiliates, and or related companies (including its parent corporation and any affiliated corporations, its owners, officers, directors, stockholders, managers, agents, employees, and representatives). Defendant Instadent, Dental Group of Alex Gladkov, DDS, Inc. is not one of the Released Parties and will be dismissed without prejudice. (¶1.41)

·       Named Plaintiff will also provide a general release and CC § 1542 waiver. (¶5.1)

4.     May conditional class certification be granted?

1.     Standards

A detailed analysis of the elements required for class certification is not required, but it is advisable to review each element when a class is being conditionally certified (Amchem Products, Inc. v. Winsor (1997) 521 U.S. 620, 622-627.)  The trial court can appropriately utilize a different standard to determine the propriety of a settlement class as opposed to a litigation class certification.  Specifically, a lesser standard of scrutiny is used for settlement cases.  (Dunk at 1807, fn 19.)  Finally, the Court is under no “ironclad requirement” to conduct an evidentiary hearing to consider whether the prerequisites for class certification have been satisfied. (Wershba at 240.)

2.     Analysis

a.     Numerosity.  There are approximately 131 class members. (Alami Decl. ¶14.) This element is met. 

b.     Ascertainability.  The proposed class is defined above.  The class definition is “precise, objective and presently ascertainable.”  (Sevidal v. Target Corp. (2010) 189 Cal.App.4th 905, 919.) The class members are identifiable from Defendant’s records. (Alami Decl. ¶14.)

c.     Community of interest.  “The community of interest requirement involves three factors: ‘(1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.’”  (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)

As to commonality, Plaintiff alleges that Defendants maintained uniform employment policies and practices that deprived Class Members of wages, meal and rest periods, and reimbursements, and contends that the predominant question of whether Defendants’ policies and practices were lawful could be resolved at once. (Memo ISO Prelim at 8:5-10.)

As to typicality, Plaintiff asserts that the alleged common policies and practices similarly affected Plaintiff and the Class through review and analysis of documents and evidence prior to mediation. For example, the investigation led Class Counsel to believe that the records would have established that Class Members were subject to an unlawful compensation policy and practice, common meal and rest period policies and practices that led to systematic violations, and common expense reimbursement practices that triggered derivative violation. (Id. at 8:11-20.)

As to adequacy, Plaintiff represents that she is aware of the duties and risks of serving as class representative and has participated in the litigation. (See Declaration of Alma Camarena.)

d.     Adequacy of class counsel.  As indicated above, Class Counsel has shown experience in class action litigation, including wage and hour class actions.

e.     Superiority.  Given the relatively small size of the individual claims, a class action appears to be superior to separate actions by the class members.

      CONCLUSION:  The class may be conditionally certified since the prerequisites of class certification have been satisfied. 

5.     Is the notice proper?

1.     Content of class notice.  The proposed notice is attached to the Settlement Agreement. Its content appears to be acceptable.  It includes information such as: a summary of the litigation; the nature of the settlement; the terms of the settlement agreement; the proposed deductions from the gross settlement amount (attorney fees and costs, enhancement awards, and administration costs); the procedures and deadlines for participating in, opting out of, or objecting to, the settlement; the consequences of participating in, opting out of, or objecting to, the settlement; and the date, time, and place of the final approval hearing.

Notice will be given in English. (¶1.11) Based on the investigation throughout the course of this litigation, Class Counsel determined a Spanish-translated version of the Class Notice was not required. (Alami Decl. ¶12.)

2.     Method of class notice.

Not later than 30 days after the Court grants Preliminary Approval of the Settlement, Defendants will simultaneously deliver the Class Data to the Administrator, in the form of a Microsoft Excel spreadsheet. (¶4.2) Using best efforts to perform as soon as possible, and in no event later than 14 days after receiving the Class Data, the Administrator will send to all Class Members identified in the Class Data, via first-class United States Postal Service (“USPS”) mail, the Class Notice. Before mailing Class Notices, the Administrator shall update Class Member addresses using the National Change of Address database. (¶7.4.2)

Not later than three (3) business days after the Administrator’s receipt of any Class Notice returned by the USPS as undelivered, the Administrator will re-mail the Class Notice using any forwarding address provided by the USPS. If the USPS does not provide a forwarding address, the Administrator will conduct a Class Member Address Search, and re-mail the Class Notice to the most current address obtained. The Administrator has no obligation to make further attempts to locate or send Class Notice to Class Members whose Class Notice is returned by the USPS a second time. (¶7.4.3)

The deadlines for Class Members’ written objections, Challenges to Class Period Workweeks and/or PAGA Pay Periods, and Requests for Exclusion will be extended an additional 14 days beyond the 45 days otherwise provided in the Class Notice for all Class Members whose notice is re-mailed. (¶7.4.4)

3.     Cost of class notice.  As indicated above, settlement administration costs are estimated not to exceed $6,250. Prior to the time of the final fairness hearing, the administrator must submit a declaration attesting to the total costs incurred and anticipated to be incurred to finalize the settlement for approval by the Court.

6.     Attorney fees and costs

CRC rule 3.769(b) states: “Any agreement, express or implied, that has been entered into with respect to the payment of attorney fees or the submission of an application for the approval of attorney fees must be set forth in full in any application for approval of the dismissal or settlement of an action that has been certified as a class action.”

            Ultimately, the award of attorney fees is made by the court at the fairness hearing, using the lodestar method with a multiplier, if appropriate.  (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095-1096; Ramos v. Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 625-626; Ketchum III v. Moses (2000) 24 Cal.4th 1122, 1132-1136.)  Despite any agreement by the parties to the contrary, “the court ha[s] an independent right and responsibility to review the attorney fee provision of the settlement agreement and award only so much as it determined reasonable.” (Garabedian v. Los Angeles Cellular Telephone Company (2004) 118 Cal.App.4th 123, 128.)

            The question of whether Class Counsel is entitled to $78,750 (35%) in attorney fees will be addressed at the fairness hearing when class counsel brings a noticed motion for attorney fees. Class counsel must provide the court with billing information so that it can properly apply the lodestar method and must indicate what multiplier (if applicable) is being sought as to each counsel.     

            Fee Split: The attorneys’ fees awarded in this case will be split as follows: 40% to David Alami, Esq. and Daniel J. Hyun, Esq. of Torus LLP, 40% to Shaheen A. Etemadi, Esq., Of Counsel, of Torus LLP, and 20% to Tork Law. Tork Law’s involvement in this case is as a referring attorney only. After written disclosure under Rule 1.5.1 of the California Rules of Professional Conduct, Plaintiff provided written consent to the foregoing division of fees. (Alami Decl. ¶23.)

Class Counsel should also be prepared to justify the costs sought (capped at $20,000)   by detailing how they were incurred.

7.     Incentive Award

The Settlement Agreement provides for an enhancement award of up to $10,000 to the named Plaintiff. In connection with the final fairness hearing, named Plaintiffs each must submit a declaration attesting to why he or she should be entitled to an enhancement award in the proposed amount.  The named Plaintiff must explain why he or she “should be compensated for the expense or risk she has incurred in conferring a benefit on other members of the class.”  (Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 806.)  Trial courts should not sanction enhancement awards of thousands of dollars with “nothing more than pro forma claims as to ‘countless’ hours expended, ‘potential stigma’ and ‘potential risk.’ Significantly more specificity, in the form of quantification of time and effort expended on the litigation, and in the form of reasoned explanation of financial or other risks incurred by the named plaintiff, is required in order for the trial court to conclude that an enhancement was ‘necessary to induce [the named plaintiff] to participate in the suit . . . .’”  (Id. at 806-807, italics and ellipsis in original.)  The Court will decide the issue of the enhancement awards at the time of final approval.

CONCUSION AND ORDER

Plaintiff’s Motion for Preliminary Approval of Class Action Settlement is CONDITIONALLY GRANTED CONTINGENT on Counsel adequately addressing the following items:

1.     Release Language: In the class release at ¶5.2, the use of the phrases “of any nature whatsoever,” “in any version of the complaints filed in this Action (any amendments thereto),” and “including but not limited to” may cause the release to exceed the scope of the claims asserted in Plaintiff’s operative complaint. Please modify to specify that Class Members will only release claims alleged in, or arising out of facts asserted in, the operative complaint. Ensure the release language in the class notice is revised to match the revisions to the Settlement Agreement.

2.     Escalator Clause: The escalator clause at Settlement Agreement ¶8 provides Defendant with the option to “cut off the Class Period before the total number of workweeks increases above 10,450) as long as it does so before Plaintiff’s motion for preliminary approval is filed.” The parties must resolve any uncertainty regarding the Class Period end date prior to the Court granting preliminary approval and prior to distribution of the class notice. Based on current records, the parties and/or administrator must review and verify the workweek total, confirm the end date of the Class Period, and remove the period-shortening language from the escalator clause. If necessary, please revise the definition of the Class Period in both the Settlement Agreement and the Class Notice to match.  The parties must file supplemental papers indicating whether the escalator has been triggered based on the number of work weeks, and if so, whether Defendant has decided to exercise the option to cut off the Class Period earlier and the new end date of the Class Period.  Regardless whether the Class Period is shortened, please remove the period-shortening language from the escalator clause.  The notice to class members must also be amended to give proper notice, consistent with Defendant’s election.

Please modify the Class Notice to match any alterations to the Settlement Agreement.

If the Settlement Agreement is modified pursuant to this checklist, please submit both a red-lined copy showing changes made as well as a clean final version signed by all parties. Please do not submit an addendum in lieu of a full amended settlement agreement including all operative settlement terms.  The Court requests that any revised Settlement and any revised Notice be submitted in two formats: (1) a clean version signed by all parties, and (2) a redlined version highlighting changes made from the current Settlement and Notice.  Both formats should be fully text-searchable.

Counsel must file and serve text searchable supplemental documents correcting the above issues no later than March 5, 2025.

A Non-Appearance Case Review is set for March 12, 2025, at 8:30 a.m., Department 9.

COURT CLERK TO GIVE NOTICE TO MOVING PARTY (PLAINTIFF). THE MOVING PARTY IS TO GIVE NOTICE TO ALL OTHER PARTIES.

IT IS SO ORDERED.

DATED: February 6, 2025                                                     ___________________________

                                                                                                Elaine Lu

                                                                                                Judge of the Superior Court