Judge Lon F. Hurwitz, Case 22-01268047 2023-06-16 Tentative Ruling

Judge: Lon F. Hurwitz, Case: 22-01268047, Date: 2023-06-16 Tentative Ruling

1. Motion for Approval of Class Settlement

2. Status Conference

Motion for Preliminary Approval

Moving Party: Plaintiff

Responding Party: None

FACTS/OVERVIEW: This wage and hour class and PAGA action was initiated on 07-01-22. The First Amended Complaint (“FAC”) was filed 09-07-22 and added the PAGA claim. (ROA 27.)

The instant Motion for Preliminary Approval was filed 04-14-23. This is the FIRST hearing on this motion.

ANALYSIS:

As an initial matter, the Davis Declaration (ROA 80) is not electronically bookmarked. This violates a basic rule of court and this Department’s admonition that it requires “strict compliance” with that rule. [CRC 3.1110(f)(4)]. Additionally, most, if not all of the Settlement (Ex. 1) is not text-searchable. Accordingly, the Court’s analysis requires significant amounts of unnecessary retyping, besides violating a second basic rule of court, CRC Rule 8.74(a)(3).

Counsel must ensure all future papers are compliant, including functional and descriptive electronic bookmarks and searchable text pursuant to the California Rules of Court. Any future non-compliance will result in a continuance and the setting of an OSC re monetary sanctions.

1. Has the escalator provision been triggered? (Stip. ¶ 38.) What are the current numbers re workweeks, class members, and PAGA members?

2. Is there a fee-splitting or referral agreement in this case?

3. The LWDA letter served by Plaintiff must be provided to permit the Court to adequately review the scope of the PAGA claim.

4. Counsel states that on 09-27-21, the parties engaged in a full day of mediation and accepted the proposal. (Davis Decl. ¶ 21.) This is prior to the case being initiated and conflicts with other information that the mediation occurred 05-04-23. (See, e.g., Stip. ¶ 7.).

5. Based on the information provided, it appears that the simple average payment is $2,546.05 per Class Member. What is the estimated average, high and low amount of recovery by Class Members?

6. What is the estimated amount of named Plaintiff’s individual recovery as a Class Member?

7. The PAGA Release is overbroad and needs to be revised. First, as written in the Stipulation (¶ 29) it has no temporal limitation. It should expressly incorporate the PAGA Period (¶ 21). Second, the inclusion of Labor Code Section “2699”, which is the general PAGA statute, makes the release overbroad as it could be interpreted to include every Labor Code predicate.

8. Plaintiff’s counsel asserts she is unaware of any cases that may be affected by the settlement of claims in this matter (¶ 27), but fails to explain what investigation was done. Additionally, the Court requires Defendant and its counsel to investigate and provide, by sworn declaration, the results of that investigation.

As to the Notice:

9. The same overbreadth problem with the PAGA Release is present here.

10. The following language (¶ 8) should be deleted: “Your request for exclusion must also include a clear statement that you do not wish to be included in this action.” This is potentially confusing. There is an exclusion form and nothing else should be required.

11. The notice of Final Judgment section needs to disclose how long it will be available on the Administrator’s website. (¶ 16.) The Court recommends at least 180 days.

As to the Proposed Order:

12. This reflects a different Class Period as it purports to end May 4, 2023. (Compare ¶ 1 with Stip. ¶ 7.) The Court prefers the use of a date certain. At any rate, these must be consistent.

13. Counsel should propose a realistic date for the Final Approval hearing.

14. Revise ¶¶ 12 & 14 to reflect that supporting papers must be filed no later than 14 calendar days in advance of the hearing.

RULING:

The hearing on this motion is continued to August 25, 2023 at 1:30 p.m. in Department CX103 so that Plaintiff may address the issues identified below. It is not necessary for Plaintiff to resubmit briefing which has already been filed with the Court. Supplemental declarations or other supplemental materials shall be filed at least 14 calendar days before the continued hearing. IT IS ORDERED that all revised papers be accompanied by redlined versions showing all changes, deletions, and additions and must be submitted electronically to the Court.

The Status Conference is continued to August 25, 2023 at 1:30 p.m.

Clerk to give Notice.