Judge Lon F. Hurwitz, Case 20-01174402 2023-06-16 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 20-01174402, Date: 2023-06-16 Tentative Ruling

Motion for Approval of Class Settlement

Motion for Preliminary Approval of Class and PAGA Settlement

Moving Party: Plaintiffs Carmen Lopez and Pete Jaramillo, individually, and as a representative of other aggrieved employees

Responding Party: None

SERVICE: Original notice, August 29, 2022, by email. Supplemental motion, May 3, 2023, by email.

RELIEF SOUGHT: Plaintiffs seek preliminary approval of a settlement in a putative wage and hour class and PAGA action.

UPCOMING EVENTS: None

FACTS/OVERVIEW: The original wage and hour Class Action Complaint alleging seven causes of action was filed on December 14, 2020, by Plaintiff Carmen Lopez, individually, and as a representative of other aggrieved employees. (ROA 2). The named defendants are Vehicle Protection Specialists, LLC and Daniel Laurent.

On December 28, 2020, the Register of Actions in this matter reflects a First Amended Complaint was filed which appeared to add an eighth cause of action for “Violation of the Private Attorney General Act (‘PAGA’).” (ROA 8.)

On October 28, 2021, a Stipulation and Order was signed by the Court “allowing Plaintiff to file First Amended Complaint for Damages.” (ROA 31.) The recital in the Stipulation stated that Plaintiff sought to amend the original Complaint filed December 14, 2020, in order to add an additional class representative. However, the Stipulation did not state that the amended pleading would add a PAGA claim, and the attached “proposed First Amended Complaint for Damages” also did not include a PAGA claim or any PAGA allegations. (Ibid.)

On November 9, 2021, Plaintiff filed the First Amended Complaint, which appears to be identical to Exhibit A to the Stipulation. The pleading added a second named Plaintiff, Pete Jaramillo, but did not include a PAGA claim or PAGA allegations. (ROA 45.) In addition, an entire page of factual allegations in the FAC was completely blacked out.

On August 29, 2022, Plaintiffs filed the original Motion for Preliminary Approval of Class Action Settlement. (ROA 77.) Concurrently, a document purporting to be a “Joint Stipulation re Class Action and PAGA Penalty Settlement (the “Settlement”) was also filed. However, the document was not attached to any declaration identifying or authenticating it. (“ROA 78.) The Settlement purported to settle the “Action”, which was defined as the action initiated on December 14, 2020, and “as amended on November 9, 2021.” (Settlement, ¶ 2.) The Settlement included several references to PAGA, and purported to attach, as Exhibit B, a letter sent to the Labor Workforce Development Agency (“LWDA”) on November 2, 2020. (Settlement, ¶ 23.) Exhibit B was a “Request for Exclusion Form,” and no such LWDA letter was otherwise attached. It is noted that the non-operative, first “FAC” alleged that notice was provided to the LWDA on August 6, 2020. (ROA 8, ¶ 98.)

At the hearing on March 3, 2023, the Court found that it appeared Plaintiffs were attempting to settle a PAGA claim that had not been asserted in the operative FAC and was not incorporated by reference in the Settlement itself. (ROA 93.) The Court continued the hearing and ordered briefing on the issue, including an explanation of the timeliness of any purported PAGA claim. (Ibid.) Counsel was to submit briefing no later than 14 calendar days in advance of the continued hearing set for May 12, 2023.

On May 3, 2023, Plaintiff’s counsel filed the Supplemental Motion for Preliminary Approval of Class Action Settlement. (ROA 100.) A Notice of Errata and Errata to Plaintiffs’ First Amended Class Action Complaint was concurrently filed wherein a fully executed copy of the FAC, including the “blacked-out” page 3, was provided. (ROA 101.)

ANALYSIS:

As a preliminary matter, the Supplemental Motion for Preliminary Approval of Class Action Settlement is represented to be "briefing in response to the Court's March 3, 2023 Minute Order." (ROA 100, 2:2-3.) Pursuant to this Court’s Order of May 3, 2023, counsel was to submit briefing no later than 14 calendar days in advance of the May 12, 2023 hearing. As a result, counsel was required to file briefing no later than April 28, 2023. But the Supplemental Motion for Preliminary Approval was filed on May 3, 2023; therefore, it is untimely.

Substantively, the Supplemental Motion does little to address the deficiencies in the Settlement and original Motion for Preliminary Approval identified by the Court at the March 3, 2023 hearing. In the brief and supporting attorney declaration, counsel states that Plaintiff intended to file a First Amended Complaint with a PAGA cause of action, and the failure to do so was an “oversight.” (ROA 100, 2:7-8, 2:18-19; ROA 98, Declaration of Brent S. Buchsbaum (“Buchsbaum Decl.”), ¶2.) Counsel notes, however, that the operative FAC does include PAGA penalties in the prayer. (ROA 45, p. 9, para. 1.) In addition, counsel states that Plaintiff Lopez submitted her letter to the LWDA on November 2, 2020, and since the LWDA failed to respond, Plaintiff Lopez is allowed to file a PAGA lawsuit. According to counsel, the facts alleged in Lopez’s November 2020 LWDA letter are the same facts alleged in the operative FAC. (Buchsbaum Decl., ¶ 3.)

Nevertheless, counsel attests that Plaintiffs are willing to amend the FAC to specifically allege a PAGA cause of action if the Court so desires. (Buchsbaum Decl., ¶ 3.) In addition, in response to the Court’s previously stated concern of whether the PAGA claim is time-barred due to the failure to amend, counsel simply asserts that the claim can be added now with no statute of limitations concern. (Id. at ¶ 4.) According to counsel, the facts giving rise to the PAGA claim are already alleged in the operative FAC, and the FAC already includes a specific demand for PAGA civil penalties. Moreover, counsel states he has no reason to believe Defendant RHFH would raise a statute of limitations argument since the parties have agreed that the PAGA claims set forth in the LWDA letter would be released in the Settlement. (Ibid.)

But counsel does not cite to any authority in support of this assertion. Indeed, he does not even discuss whether any proposed amended pleading would relate back to the original Complaint or FAC. The Court asked counsel for briefing on this issue—not his general, unsupported conclusions.

In addition, although counsel references Paragraph 5 in his declaration, he has not provided a declaration identifying or authenticating the Settlement, nor has he explained the discrepancy between the LWDA notice date alleged in the non-operative FAC and the one he now asserts is correct. Paragraph 5 in his current declaration simply notes the missing page in the FAC and that a Notice of Errata would be filed. (See, ROA 98, ¶ 5.) Paragraph 5 in counsel’s declaration filed with the Settlement only references his career accomplishments. (See, ROA 73, ¶ 5.)

In short, not only is the Court-ordered briefing untimely, but it also falls far short of providing any legal analysis on the issue it is supposed to address.

RULING:

The hearing is continued to August 25, 2023 at 1:30 PM in Dept. CX103. Counsel will be given one more opportunity to timely submit briefing on the issue of whether a PAGA cause of action is now time-barred due to the failure to amend, or will an amended complaint relate back to the original Complaint or operative First Amended Complaint. Counsel is ORDERED to submit briefing on this issue no later than 14 calendar days in advance of the continued hearing. A FAILURE TO PROVIDE POINTS AND AUTHORITIES, MEANING STATUTORY AND/OR CASE AUTHORITY, IN SUPPORT OF COUNSELS’ POSITION ON RELATION BACK AND THE TIME BARRED ISSUES RAISED HEREINABOVE, OR TO TIMELY FILE SAID BRIEFING AS ORDERED HEREINABOVE, WILL RESULT IN A DENIAL OF THIS MOTION AND/OR THE SETTING OF AN OSC RE SANCTIONS PURSUANT TO CCP SECTION 177.5.

Clerk to give notice.