Judge Kerry Bensinger, Case Number: 19STCV10238, Date: 2024-10-08 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

This action for civil penalties under the Private Attorney General Act (PAGA) was commenced against Defendant Medely, Inc. (Defendant) on March 26, 2019. Plaintiffs Jean Hensley (Hensley) and Melvin George (George) (collectively, Plaintiffs) filed the operative Second Amended Complaint (SAC) on behalf of similarly situated members of the general public on August 14, 2024.

The parties have agreed on the terms of a settlement. Under the proposed settlement, Defendant will pay a Gross Settlement Amount of $4,900,000. Of that amount, $1,633,333.33 will be paid as attorney fees, $40,000 will be paid for reimbursement of litigation expenses, $10,000 will be paid to Plaintiff Hensley as a PAGA Representative, $10,000 will be paid to Plaintiff George as a PAGA Representative, and up to $35,000.00 will be paid to a settlement administrator, leaving a Net Settlement Amount of $3,171,666.67. (Campbell Decl., Ex. 1.) From the PAGA Settlement Amount, 75 percent will be paid to the Labor and Workforce Development Agency (“LWDA”) and 25 percent will be paid to the aggrieved employees on a pro rata basis.

A court must review and approve any penalties sought as part of a proposed settlement agreement pursuant to Labor Code section 2699. (Lab. Code § 2699, subd. (l).) “[C]ivil penalties recovered by aggrieved employees shall be distributed as follows: 75 percent to the Labor and Workforce Development Agency for enforcement of labor laws and education of employers and employees about their rights and responsibilities under this code, to be continuously appropriated to supplement and not supplant the funding to the agency for those purposes; and 25 percent to the aggrieved employees.” (Lab. Code, § 2699, subd. (i).)

A proposed PAGA settlement must be submitted to LWDA at the same time that it is submitted to the court for review and approval. (Lab. Code § 2699, subd. (l)(2).) Plaintiff’s counsel attaches proof that the settlement was submitted to the LWDA on August 23, 2024—before the motion was filed. (Shakouri Decl., Ex. 1.)

A presumption of fairness¿for a settlement agreement exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small. (Dunk v. Ford Motor Co.¿(1996) 48 Cal.App.4th 1794, 1802.) The final factor does not apply to PAGA. (See Arias v. Superior Court (2009) 46 Cal.4th 969, 984 [representative actions under PAGA do not violate the due process rights of “nonparty aggrieved employees who are not given notice of, and an opportunity to be heard”].)

On October 21, 2020, and March 7, 2024, the parties attended mediations. After the second mediation with Phillip K. Cha, the parties agreed to a settlement proposal. (Campbell, Decl., ¶ 32.) The settlement was therefore reached through arm’s-length bargaining.

The parties engaged in discovery, including into defendant’s policies and procedures. (Campbell Decl., Ex. 1, § II(E).) Accordingly, there was sufficient investigation to allow counsel and the Court to act intelligently.

Plaintiffs’ counsel are experienced litigators in PAGA and wage and hour class actions. (Campbell Decl., ¶¶ 56-61.)

If the Court approves the PAGA settlement, the PAGA Settlement Group Members will “release Defendant and the Released Parties from any and all PAGA claims arising during the Covered Period that were alleged, or could have reasonably been alleged based on the same or similar facts alleged by Plaintiffs in the Actions and Plaintiffs’ notice letters to LWDA, including but not limited to claims of independent contractor misclassification and claims under California Labor Code sections 200, 201, 201.3, 202, 203, 204, 204b, 204.1, 204.2, 205, 205.5, 210, 223, 226, 226.3, 226.7, 226.8, 227.3, 500, 510, 512, 558, 1174, 1174.5, 1194, 1194.2, 1197, 1197.1, 1197.5, 1198, 2800, 2802, 2699.5, and 2698 et seq. and the applicable Wage Orders and any resulting claims for attorneys’ fees and costs (the “Released Claims”).” On only their own behalf, Plaintiffs also waive the protections of Civil Code section 1542. This release is limited to claims for civil penalties that arise from or relate to allegations in Plaintiffs’ SAC in this action, and it is permissible.

A prevailing employee is entitled to an award of reasonable attorney fees and costs incurred in the action. (Lab. Code, § 2699, subd. (g)(1).) Plaintiffs’ counsel will receive $1,633,333.33 in attorney fees (roughly 33.33% of the PAGA Settlement Amount) and $40,000 in costs and expenses. (Clark Decl., Ex. 1.)

Order to Show Cause Re: PAGA Settlement Administrative Report is set for 12/6/24 at 8:30 AM in Department 31 at Stanley Mosk Courthouse.

Kerry Bensinger

Judge of the Superior Court