Judge: Michelle Williams Court, Case: 21STCV20158, Date: 2022-10-14 Tentative Ruling

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Case Number: 21STCV20158    Hearing Date: October 14, 2022    Dept: 74

21STCV20158           TIGRAN GASPARIAN vs R & B MEDICAL GROUP, INC.

Plaintiff’s Motion for Approval of Private Attorneys General Act (Cal. Labor Code § 2698, et seq.) Settlement Agreement and Award of Attorneys’ Fees and Costs, General Release Fee, and Settlement Administration Costs

TENTATIVE RULING: The motion is taken OFF-CALENDAR due to lack of service and impermissible oversized memorandum.

Background

On May 28, 2021, Plaintiff Tigran Gasparian filed this action against Defendant R&B Medical Group, Inc. asserting seeking PAGA penalties.

Motion to Approve PAGA Settlement

On September 21, 2022, Plaintiff filed a motion for approval of PAGA settlement.

The motion is unopposed. (Code Civ. Proc. § 1005(b).)

Discussion

Standard

Pursuant to Labor Code section 2699(l)(2), “[t]he superior court shall review and approve any settlement of any civil action filed pursuant to this part. The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.” The purpose of this requirement is to “ensur[e] that any negotiated resolution is fair to those affected.” (Williams v. Superior Court (2017) 3 Cal.5th 531, 549.) “Aside from the requirement that the court ‘review and approve’ a settlement in a civil action filed under PAGA (§ 2699, subd. (l)(2)), PAGA itself does not provide a standard for this review.” (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 75.) “[A] trial court should evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.” (Id. at 77.)

“A PAGA representative action is therefore a type of qui tam action.” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 382 abrogated on other grounds by Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906.) Approval of a qui tam action generally requires a court determination “that the proposed settlement is fair, adequate, and reasonable under all of the circumstances.” (Gov. Code § 12652(e)(2)(B).) “Because many of the factors used to evaluate class action settlements bear on a settlement's fairness—including the strength of the plaintiff's case, the risk, the stage of the proceeding, the complexity and likely duration of further litigation, and the settlement amount—these factors can be useful in evaluating the fairness of a PAGA settlement. Given PAGA's purpose to protect the public interest, we also agree with the LWDA and federal district courts that have found it appropriate to review a PAGA settlement to ascertain whether a settlement is fair in view of PAGA's purposes and policies.” (Moniz, supra, 72 Cal.App.5th at 77.)

Plaintiff’s Motion is Not Accompanied by a Proof of Service and is Impermissibly Oversized

On September 21, 2022, Plaintiff filed four documents in support of the motion: (1) the notice of motion and memorandum of points and authorities with attached exhibits; (2) the declaration of Andre Sherman; (3) the declaration of Tigran Gasparian; and (4) a proposed order. None of these documents have a proof of service attached.

While the memorandum of points and authorities states “[t]he Court is referred to the concurrently filed Proof of Service, which confirms submission of the papers to the LWDA,” (Mot. at 4 n.12), Plaintiff did not file a separate proof of service and the time to do so has expired. (Cal. R. Ct., rule 3.1300(c) (“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”).) Every motion must be accompanied by a proof of service demonstrating adequate notice to all parties entitled thereto. (See e.g. Cal. R. Ct., rule 3.1300(c); Code Civ. Proc. §§ 1010 et seq.) Additionally, a party seeking approval of a PAGA settlement must demonstrate service upon the LWDA. (Labor Code § 2699(l)(2) (“The proposed settlement shall be submitted to the agency at the same time that it is submitted to the court.”).)

The Court shall not hear the motion absent evidence of proper service. (See generally Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 532 (“The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner.”) quoting People v. Hansel (1992) 1 Cal.4th 1211, 1219.)

Furthermore, Plaintiff’s motion is supported by a 33-page memorandum of points and authorities, which significantly exceeds the page limitation imposed by California Rules of Court, rule 3.1113(d) (“Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.”).)

Plaintiff’s notice of motion and memorandum acknowledge the memorandum is oversized, citing California Rules of Court, rule 3.1113. (Not. at 2:18-21; Mot. at 2:19-22.) While citing the relevant rule, Plaintiff did not properly seek and obtain leave of Court prior to filing the oversized memorandum. (Cal. R. Ct., rule 3.1113(e) (“A party may apply to the court ex parte but with written notice of the application to the other parties, at least 24 hours before the memorandum is due, for permission to file a longer memorandum. The application must state reasons why the argument cannot be made within the stated limit.”).) In addition to the service issue, the Court exercises its discretion to refuse to consider Plaintiff’s oversized memorandum.  (Cal. R. Ct., rules 3.1113(g); 3.1300(d).)

Therefore, Plaintiff’s motion is taken OFF-CALENDAR due to lack of evidence of proper service and the unauthorized filing of an oversized memorandum.