Judge: Peter Wilson, Case: 2020-01140921, Date: 2022-09-01 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to October 20, 2022 at 2:00 p.m. in department CX102 to permit the parties to respond to the following issues.  A supplemental briefing shall be filed at least 9 days before the continued hearing and respond where necessary to the points raised below.  Redlined versions of the revised proposed Class Notice and proposed order are to be provided.  If required, an amendment to the settlement agreement is directed, rather than ‘amended settlement agreement’, to avoid use of limited Court time and resources.

The parties are reminded to properly bookmark their filings.

As to the Settlement

1.    Although the Individual Settlement Payment is based on number of work weeks worked during the Class Period, the Settlement provides that the Class Notice will give Class Members the number of bi-weekly pay periods worked and permits them to object to the number of pay periods. Settlement, ¶7.2. Since the Individual Settlement Payments are based on work weeks worked, why are Class Members receiving information on the pay periods worked instead of work weeks worked?

2.    The definition of “Released Claims” is too broad because “related to” is not limited in scope by any modifier or by being tied to the factual allegations in the Complaint and PAGA notice. (See Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 537-538; Uribe v. Crown Building Maintenance Co. (2021) 70 Cal.App.5^th 986, 1005.)

3.    Given this is a Class and PAGA action settlement, it is preferable to have separate releases for the class claims and PAGA claims so that it is clear what claims are released for what period of time, particularly if there are any opt outs. (See Amaro v. Anaheim Arena Mgmt., supra, 69 Cal. App. 5th at 540, fn. 5.) The Settlement should be revised so that there are separate releases for the Class claims and the PAGA claims.

4.    Plaintiff’s confidential individual settlement should be submitted to the Court for in camera review.

5.    The Court prefers a 60-day notice period. See Class and PAGA Settlement Approval Guideline, No. 7. Why should the notice period be reduced to 45 days?

6.    Does the extended deadline for remailing apply to disputes?

7.    The presumption in favor of Defendants’ pay records for disputes should be removed.

8.    The Settlement should be revised so that the parties file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. Although the Settlement Administrator may make the initial decision, the Settlement should be revised so that the Court shall have the right to review any decision made by the Settlement Administrator regarding a claim dispute. 

9.    The Settlement permits mail and fax for disputes. Why is fax not also permitted with opt outs and objections?

10. The Settlement should make it clear that objections can be made (1) in writing, as set forth in the ¶7.4 of the Settlement, or (2) orally, by appearing in person or through counsel, at the Final Approval hearing.

11. In a written objection, the Class member does not need to provide any legal and factual argument to support the objection. The Class member need only provide a concise statement of the reasons for the objection.

12. The Court has wide discretion on assessing the reasonableness of fees, including basing fees on the percentage of fund method, conducting a lodestar cross-check on a percentage fee, or foregoing a lodestar cross-check and using other means to evaluate the reasonableness of a requested percentage fee. (Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 506.)

13. At final approval Counsel should provide billing records in support of its fees and documentation of its costs.  Further, Plaintiff’s counsel must disclose whether they have any fee-splitting arrangement with any other counsel, or confirm none exist. (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; California Rules of Court, rule 3.769(b).) 

14. The Court will determine the appropriate amount of Plaintiff’s enhancement at final approval.  At final approval, Plaintiff should submit a declaration addressing the factors set forth in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1272 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, 804, including an estimate of the hours spent on this litigation. 

15. The Settlement requires the Settlement Administrator to provide a report regarding the total amount of final Individual Settlement Amounts of each Class Participant, the number of Class Participants, and the final number of opt outs and objections at least 7 days before Final Approval. Settlement, ¶7.1. But at least part of this information must be submitted with the Motion for Final Approval which should be filed at least 16 days prior to the hearing.

16. The Court is not inclined to approve an attorney fee provision to the prevailing party against unnamed class members if there is an action to enforce the terms of the Settlement (Settlement, ¶13.18) when it may silence class members who have legitimate concerns about the Settlement but fear they may be responsible for paying fees and costs if they do not prevail.

Issues re Class Notice

1.    The Class Notice is to be revised consistent with the issues addressed above. 

2.    The bid from the Settlement Administrator indicates no Spanish translation. Did the parties consider whether the Class Notice needs to be translated in Spanish or other languages?

3.    The caption should reflect that this is also a PAGA action settlement. See e.g. Class Notice, pp. 1-2.

4.    In the explanation of the claims alleged in this action, the Class Notice fails to include failure to pay accrued vacation time. Compare Class Notice, pp. 2-3 and ROA 2, Complaint.

5.    The Class Notice provides conflicting information on how each Class member’s settlement share will be calculated. In one section, the Class Notice indicates the individual settlement will be pro rata based on work weeks worked and in another, it is pro rata based on pay periods worked. Compare Class Notice, p. 3, §1 and p. 5, §4.

6.    The Class Notice does not explain how the individual PAGA payments are calculated.

7.    Section 5 regarding the Release has the same problems discussed above.

8.    Section 6.2 of the Class Notice advises that if the Class member opts out of the class settlement, he or she may not opt out of the PAGA settlement and will still receive his or her individual PAGA payment. However, this section does not advise Class members that he or she will be deemed to have released the PAGA claims even if he or she opts out of the class settlement.

9.    In Section 6.3 of the Class Notice, it is unclear that Class members may object in person or through counsel at the Final Approval hearing as an alternative to submitting a written objection. As currently drafted, it appears that if a Class member who submits a written objection wants to also object at the Final Approval hearing, he or she may do so.

10. The Class Notice should clearly advise that if a Class member opts out, submits a dispute, and/or submits an objection, the opt will govern.

11. The Class Notice does not advise Class Members how to obtain underlying documents and papers from the court’s website.

12. The Class Notice does not advise how long the settlement checks will be valid.

13. The Class Period in the Settlement Share Form should be revised to be consistent with the definition in the Settlement.

14. The Settlement Share Form has the same issues as above in providing information on biweekly pay periods instead of work weeks.

15. The Settlement permits disputes to be faxed or mailed but the Settlement Share Form appears to require mailing only.

16. Will the parties provide an estimate of the individual PAGA payments? If so, where? 

17. The Request for Exclusion should use the defined term in the Settlement to refer to the aggrieved employees. The Request for Exclusion should advise that aggrieved employees cannot opt out of the release of PAGA claims.

18. The Request for Exclusion should advise that if a Class member submits a dispute and opt out, the opt out will govern.

19. The Request for Exclusion should advise that if a Class member submits an opt out request and objection, the opt out will govern.

20. The Settlement, Class Notice, Settlement Share Form and Request for Exclusion should be consistent in using defined terms to avoid confusion.

Issues re Proposed Order

1.    The proposed order is to be revised consistent with the issues addressed above. 

2.    The attorney information on the caption page should be removed.

3.    The caption should also indicate this is a PAGA settlement.

4.    In paragraph 2, line 21, “the” should be inserted after “pursuant to C.R.C. Rule 3.769(d),”.

5.    Paragraph 10 should be revised for the reasons previously explained.

6.    Paragraph 11 should indicate preliminary approval of the Class representative and Class counsel.

7.    The Implementation Schedule should include the deadline for disputes.

8.    The Implementation Schedule should indicate that the deadline applies to written objections, and as an alternative, Class members may object in person or through counsel at the Final Approval hearing.

9.    The Implementation Schedule should include the deadline for re-mailed notices.

10. The Settlement Administrator’s deadline for the Declaration of Due Diligence and Proof of Mailing should be the same or earlier than the deadline for filing the Motion for Final Approval since that information must be included in the moving papers.

11. The parties should propose a date for the Final Approval hearing. Final Approval hearings are held on Thursdays at 2:00 p.m.

Plaintiff is ordered to give notice, including to the LWDA. Any supplemental brief and/or amendments made pursuant to this Order should also be filed with LWDA along with notice of the continued hearing date, with a proof of service submitted to the Court.