Judge: Peter Wilson, Case: 2020-01175159, Date: 2022-09-08 Tentative Ruling
The hearing on the Motion for Preliminary Approval is CONTINUED to October 6, 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 waste of limited Court time and resources.
As to the Settlement
1. Was the Settlement and moving papers served on the LWDA? A proof of service must be filed with the Court.
2. There is no definition for aggrieved employees or time frame for the PAGA period.
3. The Settlement does not include the calculation for the individual PAGA payments.
4. The phrase “…, which shall include any and all claims, rights, demands, and/or liabilities of every nature and description, whether known or unknown, based on or arising out of the Released Claims” in paragraph 5.3 appears unnecessary and invites confusion on what is being released as it is requires reference to the definition of Released Claims in paragraph 2.5, which already provides a comprehensive definition of the claims being released.
5. There is no separate PAGA release, which is preferable so that the Settlement clearly identifies what claims are released and not released, and the applicable time frames for the Class release and PAGA release, if a Class member decides to exclude himself or herself from the Settlement.
6. Plaintiff should provide calculations for the valuations for each of the claims and explain if there was any sampling or use of an expert to assist in the evaluation of damages. Also, the valuation for the waiting time and PAGA penalties should be separated. Without knowing what value is given solely to the PAGA claims, it is difficult to determine if the amount allocated to the PAGA Settlement is reasonable.
7. Based on the Guidelines, 60 days for the Response Deadline is acceptable. Why should the Response Deadline be reduced to 35 days?
8. Is the Response Deadline extended for re-mailed notices?
9. The Court prefers that a Request for Exclusion Form is included in the Notice Packet. The parties should consider whether to include an Objection Form or Dispute Form as well.
10. There is no deadline for submitting Disputes. Additionally, the Settlement should be revised to that 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.
11. With the motion for final approval, Plaintiff 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.
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. Plaintiff should provide information on the Settlement Administrator’s qualifications and its bid showing its duties and the breakdown of costs.
16. The website maintained by the Settlement Administrator should also include the Settlement Agreement and any amendments, the Orders Granting Preliminary and Final Approval, Requests for Exclusion, Objections and Dispute Forms, if included in the notice packet, and the Judgment.
17. 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.
18. The PAGA Notice letter to the LWDA has not been provided.
19. There is a provision for continuing jurisdiction but no reference to CCP § 664.6. Settlement, ¶6.15.
Issues re Class Notice
1. The Class Notice is to be revised consistent with the issues addressed above.
2. Does the Class Notice need to be translated to other languages?
3. The Class Notice should also refer to this action as being a PAGA action lawsuit.
4. In the “Ask to Be Excluded” box on page 1, the Class Notice fails to advise that Class Members who are aggrieved employees cannot opt out of the PAGA settlement and will be bound by the release in the PAGA settlement.
5. There is no explanation that this lawsuit has a PAGA component to it and also settles all PAGA claims.
6. There is no explanation of the calculation of the individual PAGA payments.
7. There is no definition of “aggrieved employee”.
8. The Class Notice should be consistent in its use of Administrator, Settlement Administrator or Claims Administrator to avoid confusion.
9. The “presumption” in favor of Defendant’s records unless the documents a Class Member submits are company records should be removed. Class Notice, p. 5.
10. Will an estimate of the individual PAGA payments also be provided?
11. In Section 9, the last paragraph should be deleted. This section in the Class Notice should advise Class Members that as an alternative to written objections, they may appear in person or through counsel at the Final Approval hearing and orally object to the Settlement.
12. The Class Notice advises Class Members how to obtain underlying documents and papers in person at the Orange County Superior Court or from Plaintiff’s counsel. The Notice should be revised to provide instructions on how to access documents from the court’s website and to obtain documents from the Settlement Administrator’s website.
Issues re Proposed Order
1. The proposed order is to be revised consistent with the issues addressed above.
2. The Settlement and Class Notice should be attached to the proposed order as exhibits.
3. Counsel’s contact information should be removed from the first page of the proposed Order.
4. The caption of the proposed Order should identify this as a PAGA action as well as a Class action settlement.
5. There is no definition or time frame for aggrieved employees.
6. The parties should consider whether the notice packet should include forms for Requests for Exclusion, Objections and Disputes.
7. In paragraph 2, line 14, “conditionally” should be inserted between “Court” and “certifies”.
8. In paragraph 4, line 20, “conditionally” should be inserted between “Court” and “appoints”.
9. In paragraph 5, line 21, “conditionally” should be inserted between “Court” and “appoints”.
10. The not to exceed amounts for attorney’s fees, litigation costs, Plaintiff’s service payment, and the claims administration fee should be included in paragraphs 7-9. The amounts for attorney’s fees and costs should be separately provided.
11. The proposed Order should state that the Court approves of the procedure for Requests for Exclusions, Objections and Disputes, or something to that effect.
12. The parties should propose a date for the Final Approval hearing. Final Approval hearings are held on Thursdays at 2:00 p.m. in this department.
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.
The status conference is off calendar.