Judge: Peter Wilson, Case: 2021-01221399, Date: 2023-08-10 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to September 28, 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 Settlement and Motion served on the LWDA? Proofs of service of the Settlement and Motion should be filed with the Court.

2.    The PAGA Notice letter(s) to the LWDA should be submitted to the Court.

3.    Confirm that Defendants did not provide an earlier cut of date for the Release Period before the filing of this Motion as set forth in ¶III.D.5. If the escalator is triggered, what steps have been taken to ensure Defendants are able to pay the additional amounts?

4.    The Class and PAGA releases contain the phrase “that were alleged or which could have been alleged based on the factual allegations in the First Amended Complaint in the Action”. “Reasonably” should be inserted between “which” and “could” to narrow the scope of the releases.

5.    The response deadline is 45 days. The Court typically favors 60 days. Why should the Response Deadline be less than 60 days in this case?

6.    The Settlement provides that objections should advise whether the Class Member intends to appear the Final Approval Hearing. Settlement, ¶I.U. This is not necessary since the Court will hear Class Members who appear in person or through counsel to object at the Final Approval hearing even if they do not submit a written objection.

7.    The Settlement does not provide a deadline or method for submitting disputes. The parties should file with the Court all disputes submitted by class members, the evidence submitted, and the resolution of those disputes. Disputes may be determined initially by the Settlement Administrator but may be submitted to the Court for a final ruling at the final approval hearing.

8.    Are there any related or overlapping actions?

Issues re Class Notice

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

10. The title of the Class Notice should also reference the PAGA Action.

11. Does the Class Notice need to be translated into another language? 

12. In Section 7, the Class Notice advises that the Qualifying Workweeks and Qualifying Pay Periods stated in the Class Notice are presumed to be correct unless the Class Member submits documents to support his or her contention.  The Class Notice does not instruct Class Members on the acceptable methods for submitting disputes.

13. In Section 9, the Class Notice should make it clear that a Class Member may object in person or though counsel at the Final Approval hearing regardless of whether that individual submits a written objection. Section 9 does not provide the deadline for objections for remailed notices.

14. Since the Settlement Administrator will have a website, key documents, including the operative Complaint, Settlement and any amendments thereto, the Notice, Exclusion Request Form, Orders for Preliminary Approval and Final Approval, and the Final Judgment should be posted on the website and Class Members should be advised that they may obtain these records from the Settlement Administrator’s website. The final judgment should remain on the website for at least 180 days.

15. In Section 17, the Class Notice should provide an ROA number for the Garay Declaration in support of this Motion so that Class Members may have an easier time locating it in the Court files.

16. The Exclusion Form permits faxing but the Settlement and Class Notice only permit submission by mail. The Exclusion Form should also advise that Class Members may not opt out of the PAGA portion of the Settlement if they are aggrieved employees.

Issues re Proposed Order

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

18. On page 2, line 2, the proposed Order should also reference the PAGA action.

19. The Settlement and Class Notice should be attached to the proposed order as exhibits. Based on the Settlement Administrator’s bid, the Class Notice will be translated to a different language. A certified translation of the Class Notice should also be attached as an exhibit.

20. The proposed Order should include the deadlines for submitting exclusions, objections and disputes and any extended deadline for remailed notices.

21. Paragraph 12 should state that Class Members who are aggrieved employees cannot opt out of the PAGA Settlement.

22. Paragraph 14 should make it clear that the Court will consider objections in person or through counsel at the Final Approval hearing regardless of whether a written objection has been submitted.

23. The proposed Order should include the deadline for submitting Disputes.

24. Propose a date for the final approval hearing and include the deadline for filing the moving papers, which should be 16 days prior to the hearing date. Additionally, the moving papers should be served on the LWDA concurrently with filing.

In the Motion for 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, and file a proof of service. All supplemental papers in response to this Order must also be served on the LWDA, with a proof of service filed with the Court.