Judge: Glenda Sanders, Case: 2015-00825337, Date: 2022-11-17 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to January 26, 2023 at 2:00 p.m. in department CX102 to permit the parties to respond to the following issues.  A supplemental briefing shall be filed at least 9 days before the continued hearing and respond where necessary to the points raised below. Redlined versions of the revised proposed Class Notice and proposed order are to be provided.  If required, an amendment to the settlement agreement is directed, rather than ‘amended settlement agreement’, to avoid use of limited Court time and resources.

 

As to the Settlement

 

1.    The Court is not inclined to approve a “claims made” settlement. And if this is intended as a “claims made” settlement, why should Class Members who do not submit a Claim Form also be required to opt out?

 

2.    Paragraph 18(b) in the Amended Settlement should be deleted.

 

3.    The Amended Settlement indicates the parties will request an order to “[d]ismiss with prejudice as to all non-opt outs” all claims arising out of or related to the actions and events in the Complaint. Amended Settlement, ¶13(b). This should be deleted. The final approval order must provide that judgment is being entered, and may not contain a provision dismissing the action with prejudice. CRC 3.769(h).

 

4.    Why should Class Members be permitted to submit disputes when they are each receiving equal shares? If disputes are appropriate, the procedure for disputes is too complicated and there is no deadline set for submitting a dispute. If the parties are requiring a written statement under penalty of perjury, a form needs to be provided to ensure that the class member uses the proper language. Further, the parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. The Court shall have the right to review and reverse any decision made by the settlement administrator regarding a claim dispute.    

 

5.    The requirements for objections are too onerous. Objecting Class Members need only provide a concise statement of the reasons for the objection by the deadline. Alternatively, Class Members may object in person or through counsel at the Final Approval hearing regardless whether they have filed a written objection. The time for objecting should only restart after one re-mailing so that there is a clear deadline for submitting written objections. Objections should be provided to the Settlement Administrator, who will them advise the parties and submit the objections and any response to the Court. Class Members should not file the objections directly with the Court or serve the Plaintiff and Defendants.   

 

6.    Plaintiff’s counsel must disclose whether they have any fee-splitting arrangement with any other counsel, or confirm none exist.  (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; California Rules of Court, rule 3.769(b).) 

 

7.    The Court will determine the appropriate amount of Plaintiff’s enhancement at final approval.  At final approval, Plaintiff should submit a declaration addressing the factors set forth in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1272 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, 804, including an estimate of the hours spent on this litigation. 

 

As to the Class Notice

1.    The Class Notice is to be revised consistent with the issues addressed above. 

  1. There is no definition of the Released Claims or Released Parties even though Section VI states that those definitions will be provided.

 

  1. In Section VII, the heading should also include “Litigation Costs”. This section identifies the requested litigation costs as $15,000 but Plaintiff is seeking $18,000. 

 

  1. The objection procedure in Section XII should be revised in accordance with the above.

 

  1. There is no information on disputes even though it is permitted in the Amended Settlement.

 

  1. The Settlement Administrator’s website must include the operative Complaint, Amended Settlement, Notice, Claim Form, Orders Granting Preliminary and Final Approval, and the Final Judgment.

 

  1. The Non-Retaliation provision only identifies Mariscos Playa de Corales as not retaliating again the Class Member for submitting the Claim Form, but all named Defendants should be required not to retaliate since there is joint and several liability and may be joint employers.

 

  1. All references in the Claim Form to the ILYM as the Claims Administrator should be revised to Settlement Administrator in order to be consistent with the Settlement, Amendment and Notice. 

 

As to the proposed Order

 

1.    The proposed order is to be revised consistent with the issues addressed above. 

2.    The parties should propose a date for the final approval hearing. Final approvals are held on Thursdays at 2:00 p.m.

3.    According to the Settlement, the first mailing to the class should be made within 28 days after the order preliminarily approving the class action settlement (see ROA P&A, p. 23, proposed Scheduling Order), not 30 days as stated in paragraph 9.

4.    The objection procedure set forth in paragraph 9 should be revised in accordance with the above.

5.    Paragraph 9 should include the deadline for the Final Approval hearing and require that the motion, along with the report of objections and disputes, be filed at least 16 court days prior to the hearing.

6.    The proposed Order should include the not to exceed amounts of the disbursements.

Plaintiff is ordered to give notice.