Judge: Peter Wilson, Case: 2021-01188961, 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.

As to the Settlement

1.    Were the moving papers served on the LWDA? If so, the proof of service on the LWDA must be filed with the Court.

2.    Have all PAGA Notice letters to the LWDA been provided to the Court? Was there a PAGA Notice letter sent to the LWDA on behalf of Plaintiff Blanton?

3.    The Released Class Claims and the Released PAGA Claims are overly broad and should be limited to the claims alleged or that reasonably could have been alleged.

4.    Does the deadline for remailed notices apply to Disputes?

5.    Written objections need only include the objecting party’s name, address, telephone number, dates of employment, case name and number and a concise statement of objections. Legal support and/or evidence and a request to be heard at the Final Approval hearing are not required. Additionally, Section G.69(d), which provides that an objecting Class member who fails to timely submit a written objection waives any right to object and will be foreclosed from making an objection to this Settlement appears to conflict with Section G.69(c), which permits written objections and oral objections at the Final Approval hearing whether or not the Class member submitted a written objection.

6.    With regard to Disputes, although the Settlement Administrator may make the initial decision, the parties must submit all Disputes and related documentation to the Court and the Court will have the right to review the Settlement Administrator’s decision.

7.    Are there any currently pending related or overlapping matters?

Issues re Class Notice

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

9.    Does the Class Notice need to be translated into any other language?

10. Page 1 of the Notice should refer to the PAGA Action and provide an explanation of PAGA and aggrieved employees as well.

11. On page 3, the Settlement Administrator’s fees and costs are incorrectly identified as $12,000.

12. On page 3, under “Penalties to the LWDA”, and on page 4, under “Calculation of Individual Settlement Payments to Class Members”, the Class Notice incorrectly states the individual PAGA payments are based on the number of workweeks worked instead of the number of pay periods. See Settlement, ¶ C.47(d)i

13. On page 3, under “Service Payment to Settlement Class Representatives”, the Class Notice incorrectly states that Plaintiffs seek service awards of $10,000 each, or $20,000 total.

14. On page 3, under “Attorneys’ Fees and Expenses”, the Class Notice states there are three law firms but only identifies two law firms.

15. On page 4, under “Calculation of Individual Settlement Payments to Class Members”, the Class Notice should advise that disputes must be submitted by mail to the Settlement Administrator.

16. On page 4, under “Allocation and Taxes”, the Class Notice should separately provide the allocation to penalties and interest to be consistent with the Settlement.

17. On page 5, under “Release”, the PAGA Release is not included.

18. The Class Notice should advise Class members how to access documents from the court’s website. Additionally, any reference to specific documents should include the ROA number.

Issues re Proposed Order

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

20. The Settlement, and any amendments thereto, and Class Notice should be attached as exhibits to the proposed Order.

21. The attorney contact information should be deleted from the caption page.

22. In paragraph 2, line 15, “Defendant” should be revised to “Defendants” and insert “hourly” between “non-exempt” and “employees” so that the Class definition is consistent with the Settlement.

23. The definition for aggrieved employees should be included in the proposed Order.

24. The deadline for objections, exclusions and disputes when notice is remailed should also be included in paragraph 12.

25. A date for the final approval hearing should be proposed. Final approval hearings are held on Thursdays at 2:00 p.m. in this department. The Motion for Final Approval must be filed 16 days before the hearing and served on the LWDA, along with a proof of service.

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

1.    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.

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.    Plaintiff’s 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.

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