Judge: Glenda Sanders, Case: 30-2021-01199788, Date: 2023-01-05 Tentative Ruling
The hearing on the Motion for Preliminary Approval is CONTINUED to February 16, 2023 at 2:00 p.m. in department CX101 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. Plaintiff must provide to the Court all PAGA Notice letters to the LWDA.
2. The Class release should be simplified and limited to “any and all claims, … pleaded or that could have been pleaded, based on the facts alleged in the Operative Complaint.”
3. Similarly, the PAGA release should be limited to “civil penalties only under PAGA … predicated on the facts alleged in Plaintiff’s operative Complaint and/or PAGA Notices to the LWDA”. The PAGA Release should also set forth the time frame for the release.
4. Why is the failure to provide supplemental COVID-19 sick leave included in the releases? Although the Wheeler Declaration explains that the failure to include the amount of supplemental COVID-19 sick leave in the wage statements is a violation of wage statements, the operative Complaint does not include a claim for failure to provide supplemental COVID-19 sick leave.
5. The preferred response period for exclusions, objections and disputes is 60 days. Why should the response period be shorter in this case?
6. What is the deadline for disputes for re-mailed notices? Is it the same as for exclusions and objections for re-mailed notices (i.e. 45 days from the re-mailed notice)?
7. The procedure for disputes must be revised. The rebuttable presumption is too onerous and the ways of challenging it are too limited. The presumption of accuracy of Defendants’ records may apply in the absence of contradictory evidence by the Class Member disputing the Workweeks. Additionally, the parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. Although the Settlement Administrator may make the initial decision on the disputes, the Court shall have the right to review the Settlement Administrator’s decision.
8. No legal brief, paper or memoranda is necessary for objections. Class Members need only provide a concise statement of their reasons for objecting. The Court will permit oral objections at the Final Approval hearing even if no written objection was previously submitted.
9. With the motion for final approval, Plaintiff must present a full report to the Court on all disputes, exclusions and objections received.
10. The Court will not enforce against a Class Member the provision granting attorney fees to the prevailing party if a motion to enforce is filed due to a dispute “concerning the interpretation, calculation or payment of Settlement claims, or other disputes regarding compliance”. Settlement, ¶67 and subparagraph e.
11. Since the estimated litigation costs to date are $17,500, why should the preliminarily approved not to exceed amount be $20,000 for litigation costs?
12. The Court has wide discretion on assessing the reasonableness of fees, including basing fees on the percentage of fund method, conducting a lodestar cross-check on a percentage fee, or foregoing a lodestar cross-check and using other means to evaluate the reasonableness of a requested percentage fee. (Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 506.)
13. At final approval Counsel should provide billing records in support of its fees and documentation of its costs. Further, 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; Cal. R. Ct. 3.769(b).)
14. 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.
15. Will the Settlement Administrator have a website for Class Members? If so, key documents, including the PAGA Notice letter, operative Complaint, Settlement, and any amendments, the Class Notice and relevant forms, the Orders Granting Preliminary and Final Approval, and Final Judgment should be posted on the website.
16. Along with the motion for final approval, the settlement administrator should provide an estimated high and low for individual settlement payments, along with Plaintiff’s individual payouts.
Issues re Class Notice
17. The Class Notice is to be revised consistent with the issues addressed above. Counsel should pay particular attention to the explanation of the releases in Sections 4 and 5 of the Class Notice. The Class Members should not be required to refer to other documents outside of the Class Notice to understand what claims they are releasing.
18. The second sentence of the first paragraph in the Class Notice should be removed. It appears to pressure Class Members into not objecting. Settlement, 7, p. 4.
19. Section 7 in the Class Notice regarding objections should also notify the Class Members that they may appear at the Final Approval hearing to object in person or through counsel regardless of whether or not they submit a written objection.
20. Section 8 in the Class Notice should be updated with the correct department. Section 8 should also inform Class Members that they may, but are not required to, attend the Final Approval hearing.
21. More detailed instructions on how to access documents from the court's website should be provided in Section 11 of the Class Notice. If the Settlement Administrator maintains a website, information on how to obtain documents from the Settlement Administrator's website should also be provided.
22. In the Objection Form, under the heading, the first sentence should be revised to state the Objection must be “returned” not “postmarked” since Class Members may mail, email or fax the Objection. The Objection Form should be consistent throughout in stating that Class Members can return the Objection by mail, email or fax.
23. The Exclusion Form states that the “objection” must be sent to the Settlement Administrator. This reference should be removed so that there is no confusion that the Class Member is excluding himself or herself from the Settlement rather than objecting. The Exclusion Form should also advise that the Class Member cannot exclude himself or herself from the PAGA Settlement, and that if he or she is a PAGA Member, he or she will receive an individual PAGA payment and release the PAGA claims regardless of whether he or she cashes the check with the individual PAGA payment.
Issues re Proposed Order
24. The proposed order is to be revised consistent with the issues addressed above.
25. The attorney contact information should be removed from the caption page.
26. The department should be updated on the caption page.
27. The definition of the PAGA Member should be included in the proposed Order.
28. The Settlement should be attached to the proposed Order as an exhibit.
29. Certified copies of the Spanish and Mandarin translations of the Class Notice, Exclusion Form and Objection Form, along with the English versions, should be attached to the proposed Order as exhibits.
30. The preliminarily approved “not to exceed” amounts of the disbursements should be included in the proposed Order.
Plaintiff is ordered to give notice, including to the LWDA. Any supplemental brief and/or amendments made pursuant to this Order should also be filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court.