Judge: Monica Bachner, Case: 20STCV41061, Date: 2022-09-27 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 20STCV41061    Hearing Date: September 27, 2022    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff’s motion for preliminary approval of class action settlement is continued to ______.  Plaintiff is ordered to submit an amended proposed order that corrects  the language relating to the LWDA Payment.

Plaintiff Edgar Montes (“Montes” or “Plaintiff”) moves for an order granting preliminary approval of the proposed settlement with Defendant AG Construction aka AG Construction, Inc. (“Defendant”) on the terms and conditions set forth in the Amended Settlement Agreement (“Amended Settlement”) between Plaintiff and Defendant.  (Notice of Motion, pgs. 1-2; Supp-Decl. of Hamner, Exh. A [Amended Settlement].)  [The Court notes the initial motion was brought by Plaintiffs Montes and Jorge Montes aka Jorge Montes Silva (“Silva”); however, the instant motion is brought by Montes alone. (Compare Notice of Motion and Notice of Amended Motion.)]

On May 27, 2022, the Court continued the initial hearing on the instant motion in light of errors in the originally filed proposed order; Plaintiffs filed a revised proposed order on July 12, 2022.  On July 21, 2022, the Court held a hearing on the motion and ordered Plaintiffs to submit an amended settlement correcting and/or addressing the following issues: (1) the time frame of the Class Period as set forth in Paragraph 9; (2) the amount of administration costs set forth in Paragraph 49(c); (3) the amount of NSA and estimated net per class member in light of the increased request for administration costs [Paragraph 49(f)]; (4) service enhancement award set forth in Paragraph 34; (5) the time frame of the PAGA Period as set forth in Paragraph 23; (5) the general release’s application to Plaintiff only; (6) the date of the release of the Released PAGA Claims; (7) releases that do not precede the payment date; and (8) incorrect references to “Plaintiffs” so as to not create inconsistencies in the Settlement terms. The Court also ordered Plaintiffs to submit an amended proposed order: (1) specifying that the LWDA Penalty Amount of $15,000 and the PAGA Employee Payment of $5,000 together comprise the $20,000 PAGA Payment to be deducted from the GSA to not suggest double counting; (2) specifying the accurate time frame of the Class Period [in the Proposed Order and Class Notice]; (3) revising the request for attorneys’ fees in the amount of $161,700 based on 33% of the GSA [in both Proposed Order and Class Notice]; and (4) specifying the time frame of the PAGA Period [in the Notice].

On August 29, 2022, Plaintiff filed an Amended Motion, and on August 31, 2022, Plaintiff filed a Supplemental Declaration of Plaintiff’s counsel Christopher Hamner (“Hamner”) and a Corrected Proposed Order in which a text-searchable Amended Settlement Agreement (“Amended Settlement”) signed by Montes and Defendant on August 30, 2022, and August 31, 2022, respectively, is attached.  (Supp-Decl. of Hamner, Exh. A.)  In addition, an Amended Class Notice is attached to the Hamner Declaration as Exhibit B.

On September 8, 2022, the Court continued the hearing, and ordered Plaintiff to file (1) an Amended Settlement with a revised Second Amended Class Notice that corrects identified typos; and (2) an Amended Proposed Order that (a) corrects its language relating to the LWDA Payment, and (b) attaches the aforementioned Second Amended Class Notice.  On September 20, 2022, Hamner filed the amended settlement agreement and a second amended class notice.

In the instant motion, Plaintiff requests the Court: (1) preliminarily approve the Amended Settlement; (2) approve the form and content of the Proposed Class Notice; (3) direct that the Notice be given to class members, (4) provisionally certifying the Settlement Class, appointing Plaintiff as class representative and Plaintiff’s counsel as Class Counsel; (5) approving Phoenix Class Action Administration Solutions (“Phoenix”) as settlement administrator (“Administrator”); and (6) scheduling a final approval hearing at the early stage permitted by the Settlement.  (Amended Motion, pg. 12.) Plaintiff also requests: (1) the Court finds on a preliminary basis that the $490,000 Gross Settlement is fair, adequate, and reasonable, falls within the range of reasonableness, and therefore meets the requirements for preliminary approval; (2) the Court preliminarily approves the following allocation of the Gross Settlement Amount of $490,000: (a) Class Counsel’s attorneys’ fees not to exceed $161,700; (b) Class Counsel’s litigation costs not to exceed $15,000; (c) Plaintiff’s Service Enhancement not to exceed $20,000; (d) Settlement Administration Expenses not to exceed $9,000; (e) a total LWDA Penalty Amount of $20,000, of which $15,000 is to be paid to the LWDA and $5,000 is to be paid to PAGA Employees; and (g) all remaining balance of the Gross Settlement Amount, or the Net Settlement Amount, shall be allocated to the Participating Class Members based on their weeks worked in the Class Period. (Amended Proposed Order; Amended Settlement; Amended Motion, pgs. 2-3.) 

The Amended Proposed Order sets forth the following timeline: (1) within 20 days from Preliminary Approval, Defendant will provide Administrator with employee data; (2) within 35 days from Preliminary Approval, Administrator will mail Class Notice to Class Members; (3) the deadline for Class Members to respond shall be 60 days from the date of mailing the Class Notice to Class Members; (4) Plaintiffs shall thereafter file the motion for final approval, where the hearing shall be set no less than 16 Court days from the date of filing. (Amended Proposed Order.)

The Corrected Proposed Order still does not specify that the LWDA Penalty amount of $20,000 is inclusive of the PAGA Employee Payment of $5,000, as instructed in the Court’s prior ruling.  (Corrected Proposed Order ¶2.)  Plaintiff is again instructed to file an Amended Proposed Order in which the relevant portion of Paragraph 2 reads as follows:

“Further, the Court preliminarily approves the following allocation of the Gross Settlement Amount of $490,000… (e) the total LWDA Penalty Amount of $20,000, of which $15,000 is to be paid to the LWDA and $5,000 is the PAGA Employee Payment.”

The deadline for Plaintiff’s amended filings is five Court days prior to the hearing.

Dated:  September _____, 2022

Hon. Monica Bachner

Judge of the Superior Court