Judge: Peter Wilson, Case: 2020-01174518, Date: 2023-08-24 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to November 9, 2023 at 2:00 p.m. in department CX101 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.

Further, the parties are reminded to properly bookmark their filings.

As to the Settlement

1.    Were all of the moving papers served on the LWDA? The proof of service on the LWDA does not list all moving papers.

2.    What is the status of the dismissal of the Solis Action?

3.    What is the status of the cross-complaint in the Ramos Action?

4.    The parties must submit all their PAGA Notice letters to the Court.

5.    The parties should advise whether they are aware of any currently pending related or overlapping matters that may be affected by this Settlement.

6.    The definitions of Class Released Claims and PAGA Released Claims are overly broad because they include claims that were plead in the actions and arise out of or relate to such facts. The phrase “relate to” must be qualified, e.g. by adding reasonably, to tether the claims to the facts alleged.

7.    Is the Response Deadline for opt outs, objections and disputes extended for remailed notices?

8.    Objecting Class Members do not need to file a notice of intent to appear. Additionally, failing to submit written objections does not waive the Class Members’ right to object. The Court will consider all oral objections made in person or through counsel at the Final Approval Hearing regardless of whether a written objection has been submitted.

9.    The Parties should 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. 

10. The Settlement Administrator’s website should post all key documents, including the operative complaint, the PAGA Notice letters to the LWDA, the Settlement and any amendments, the Class Notice and any included forms, the Orders granting Preliminary and Final Approval, and the Judgment. The Judgment should be posted for at least 180 days.

11. Paragraph 46 of the Settlement entitles a successful party or parties to recover from the unsuccessful party or parties reasonable attorneys’ fees and costs, including expert witnesses fees incurred in connection with any enforcement actions. The Court will not enforce the attorney fees provision against unnamed Class Members and aggrieved employees.

Issues re Class Notice

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

13. The Settlement Administrator is supposed to provide the Notice in English and Spanish. Settlement, ¶24. A certified translation of the Spanish version of the Notice should be included as an exhibit to the proposed Order. Will the other forms provided with the Notice be translated? If so, certified translations should be provided as well and included as exhibits to the proposed order.

14. Regarding disputes, the Notice should advise that the amount of workweeks and pay periods identified in the Class Notice “shall be presumed to be correct” and “determinative” unless the Class Member submits contrary evidence.

15. The Notice should advise that key documents may be obtained from the Settlement Administrator’s website.

16. The Notice uses the defined term “Effective Date of the Settlement” without explaining what it means.

Issues re Proposed Order

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

18. The caption on the proposed order should also reference the PAGA Action.

19. The Settlement and any amendments, the Class Notice, Notice of Change of Address and Request for Exclusion Form, including Spanish translations, should be attached to the proposed order as exhibits.

20.  The definition of aggrieved employees and the PAGA Period should be included in the proposed order.

21. Paragraphs 6 and 9 and the Implementation Schedule should include disputes.

22. A date for the final approval hearing should be proposed. Final Approval hearings are held on Thursdays at 2 p.m. in this department. The Motion for Final Approval should be served on the LWDA with a proof of service filed with the Court.

23. The Implementation Schedule should indicate that Class Members may orally object in person or through counsel at the Final Approval hearing whether or not they submit written objections.

At Final Approval, the parties are ordered to include the following:

1.    Plaintiffs must present a full report to the Court on all exclusions, objections and disputes received. The Court will consider any objections at the final approval hearing.    

2.    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.) However, the parties must include sufficient information in the Motion for Final Approval to permit the Court to conduct a lodestar cross-check, such as billing records in support of fees and documentation of costs. 

3.    Plaintiffs’ counsel must disclose whether they have any fee-splitting arrangement with any other counsel, including the exact percentages, or confirm none exist.  (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; Cal. R. Ct. 3.769(b).) 

4.    In order for the Court to determine the appropriate amount of Plaintiff’s enhancement 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. 

5.    Along with the Motion for Final Approval, the Settlement Administrator should provide an estimated high and low for individual settlement payments, along with Plaintiff’s individual payouts.

Plaintiffs are 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.