Judge: Monica Bachner, Case: 20STCV41061, Date: 2023-03-30 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: March 30, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Edgar Montes’ unopposed motion for a final order approving the class action and PAGA penalty settlement is continued to April 17, 2023 at 8:30 a.m.

1.    Plaintiff is to submit evidence the parties complied with Labor Code §2699(l)(2) by submitting a copy of the Settlement and instant motion to the LWDA at the same time they were submitted to the Court.

2.    Plaintiff is to attach a copy of the Settlement Agreement for the Court’s review.

          Plaintiff Edgar Montes (“Montes”) (“Plaintiff”) moves for a final order approving the class action and PAGA penalty settlement with A G Construction aka AG Construction, Inc. (“AG Construction”) (“Defendant”).  (Notice of Motion, pg. 1.) 

          Motion to Approve PAGA Settlement

Plaintiff requests the Court issue an order stating: (1) All terms as defined in the Second Amended Class Action and PAGA Settlement Agreement and Release (“Settlement Agreement”); (2) Class Members shall mean 388 persons who make of the class of all employees who worked as hourly construction workers for Defendant, in the State of California, during the Class Period of October 26, 2016 through October 13, 2022 (the date of preliminary approval); (3) the Court’s jurisdiction over the subject matter of this action and over all Parties thereto, including all Participating Settlement Employees; (4) the Settlement Class is properly certified as a class for settlement purposes only; (5) the Class Notice provided to the Settlement Class conforms with the requirement of C.C.P. §382, Civil Code §1781, C.R.C. Rules 3.766 and 3.769, the California and United States Constitutions, and any other applicable law, and constitutes the best notice practicable under the circumstances, by providing individual notice to all Settlement Class Members who could be identified through reasonable effort, and by providing due and adequate notice of the proceedings and of the matters set forth therein to the other Settlement Class Members; (6) the Class Notice fully satisfied the requirements of due process; (7) the Settlement was entered in good faith and is fair, reasonable, and adequate under appliable law; (8) no Settlement Class Members have objected to the terms of the Settlement; (9) one Settlement Class Member requested exclusion from the Settlement Class; (10) upon entry of this Order, payment to the Participating Class Members shall be effectuated pursuant to the terms of the Settlement Agreement; (11) in addition to any recovery that the Plaintiff may receive under the Settlement as Settlement Employee, and in recognition of Plaintiffs efforts on behalf of the Settlement Class and PAGA Employees, the Court approves the payment of a service fee award to Plaintiff Montes in the amount of $20,000; (12) the Court approves the payment of attorneys’ fees to Class Counsel in the sum of $161,700, which shall be paid to Class Counsel, Hamner and Garay; (13) the Court also approves reimbursement of the total combined sum of $10,901.20 in litigation expenses, which shall be paid to attorneys Hamner and Garay, pursuant to the terms of the Settlement Agreement; (14) The Court approves and orders payment in the amount of $9,000 to Phoenix Class Action Solutions for performance of its settlement administration services, pursuant to the terms of the Settlement Agreement; (15) the Court approves the settlement of claims under the Labor Code Private Attorneys General Act of 2004 (“PAGA”) (Lab. Code §§2698 et seq.) in the total amount of $20,000, and orders payment in the amount of $15,000 to the State of California Labor and Workforce Development Agency (“LWDA”) in compromise of claims under the PAGA, and the remaining $5,000 shall be distributed to the PAGA class; (16) in accordance with C.R.C. Rule 3.771(b), the Parties are ordered to give notice of this final Order and Judgment to all Settlement Class Members through the website established by the Settlement Administrator for this Settlement; (17) upon the Effective Date, Plaintiff and Participating Class Members release the Released Parties from the Released Class Claims; (18) The expiration date of any instruments of payment issued by the Settlement Administrator to Participating Class Members will be one hundred eighty (180) days from the date such instruments are issued and sent, and any settlement checks remaining uncashed after one hundred eighty (180) days shall cause that Participating Class Member's payment, plus interest that has accrued thereon, to be distributed to the Controller of the State of California to be held pursuant to the Unclaimed Property Law, (Civ. Code §§1500 et seq.), for the benefit of that class member; and (19) the Judgment is intended to be a final disposition of the instant case in its entirety, and is intended to be immediately appealable and this Court reserves exclusive and continuing jurisdiction over this action, the Plaintiff, Settlement Class Members, and Defendants, for the purposes of: (a) supervising the implementation, enforcement, construction, and interpretation of the Settlement, the Preliminary Approval Order, the plan of allocation, the Final Approval Order, and the Judgment, and (b) Supervising distribution of amounts paid under this Settlement.  (Proposed Order.)

California Labor Code section 2699(l)(2) provides that “[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 [Labor & Workforce Development Agency (“LWDA”)] at the same time that it is submitted to the court.” 

On October 26, 2020, Plaintiff filed his initial complaint in the instant action.  On January 21, 2021, Plaintiff filed his first amended complaint (“FAC”).  On December 21, 2021, Plaintiff filed the operative second amended complaint (“SAC”) alleging eight causes of action, including a PAGA cause of action for civil penalties pursuant to Labor Code §§2698, et seq., seeking to represent a class, pursuant to C.C.P. §382, defined as “all persons who have worked for Defendant as an hourly laborer, or any similar job title, in California during the Liability Period of October 26, 2020 to the present, and continuing.”  (SAC ¶8.)  On May 21, 2020, Plaintiff provided the LWDA and Defendant written notice of claims for PAGA penalties.  (SAC ¶6.)

On October 13, 2022, this Court granted preliminary approval to a class and PAGA settlement in this matter.  (Amended Order Granting Preliminary Approval of Class Action and PAGA Settlement.)

As a threshold matter, Plaintiff failed to submit evidence the parties complied with Labor Code section 2699(l)(2) by submitting a copy of the Settlement and instant motion to the LWDA at the same time they were submitted to the Court.

Plaintiff failed to attach a Settlement Agreement to the instant motion for the Court’s review.  Plaintiff had not provided the Court with sufficient information to approve the Settlement.

Based on the foregoing, Plaintiff’s motion for an order approving the Settlement is continued. 

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court