Judge: Glenda Sanders, Case: 2013-00649460, Date: 2022-07-29 Tentative Ruling
Motion for Approval of Class Settlement
The overall structure of the settlement appears to fall within the parameters of a settlement that could finally be approved by the court. On a preliminary basis it appears to be fair, reasonable and adequate. There are, however, some issues that the court wishes to discuss with the parties at the July 29, 2022 hearing. These issues are:
6. What does the capitalized term “PROJECTS” refer to in the class definition found in Par. 1.10 of the Settlement Agreement? This term was not used in the class that was certified by the court, nor does it appear in the class definition provided in the Notice. Why does the class definition that appears in the Settlement Agreement and Proposed Order differ from that shown in the Notice?
7. In the situation where a prior owner submits a Prior Owner Verification Form, will the present owner be notified that the prior owner has submitted such a form? Why or why not? It seems that, potentially, a present owner might expect a settlement payment when, unbeknownst to him/her a prior owner has claimed the payment. What would the procedure be if there is a dispute between the Present and Prior Owner regarding who is entitled to a settlement payment?
8. Section 5.4 of the Settlement Agreement refers to an Exhibit G form to be utilized by Defendant to record the release on the title of properties that are ultimately included in the class. However, that form has not been provided.
9. The hypothetical calculation of the individual payments in Section 10 of the Notice contains mathematical errors. The total attorneys fees and litigation expenses requested ($644,000 + $90,000 is $734,000 (not $733,000). After subtracting all requested deductions from the Gross Settlement Amount, the net settlement fund is $1,178,000 (not $1,089,000). The hypothetical individual payment must also be recalculated.
10. The incorrect fee and cost total also appears in Section 18 of the Notice. Section 18 also erroneously refers to the Class Representatives in the singular as “her,” whereas other parts of the Notice refer to the Cains in the plural.
11. Are there matters, other than the related cases before this court, that may be potentially influenced by this settlement?
12. The proposed order includes a determination of good faith settlement pursuant to CCP §877.6, but no argument has been made in support of that finding. (PO ¶5).
13. The Proposed Order includes blanks for the names of the three potential class members who previously opted out of the settlement. The names of those individuals must be provided for inclusion in the Order. (PO ¶11).
14. The Proposed Order states that any Settlement Class Member “who does not make an objection in the time and manner provided shall be deemed to have waived such objection and forever shall be foreclosed from making any objection to the fairness or adequacy of the proposed settlement as incorporated in the Settlement Agreement, the payment of attorneys’ fees and costs, or the Final Approval Order and Judgment.” (PO ¶24). The court cannot foreclose individuals from making such an argument in another proceeding, such as a hearing on the issue of res judicata or issue preclusion.
15. Counsel must explain the reasoning for the language in Paragraph 26 of the Proposed Order which indicates that whether the Settlement is approved shall be considered separately from Class Counsel’s application for attorney’s fees and costs, and that there shall be separate orders for those two motions. To the contrary, the court normally considers fee and cost awards in the context of the overall settlement.
16. Counsel must propose a date for the Final Approval Hearing.
Note: There is a pending proposed order to add the Cains as named Plaintiffs. The court will sign this order.