Judge: Peter Wilson, Case: 2021-01236691, Date: 2023-08-31 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to October 12, 2023 at 2 PM 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.    Since the parties believe they know the identity of every purchaser of at least one non-listed VA2 or VA4 air gap, why should this be a “claims made” settlement, rather than sending the $30 payment to every class member who does not opt out?

2.    How will the injunction be enforced in the event the VA2 and VA4 air gaps are de-listed? How likely is de-listing of the VA2 and/or VA4 air gaps?

3.    How were the products sold by Fresh Water Systems, Inc.? Did Fresh Water Systems, Inc. identify any other potential distributors / retailers of the product?

4.    There is no deadline for submitting a claim or opting out.

5.    What happens if a Class Member submits a claim and opts out, or opts out and objects?

6.    The release should should be revised so that it is properly tethered to the complaint’s factual allegations. (Marshall v. Northrop Grumman Corp. (C.D. Cal. 2020) 469 F.Supp.3d 942, 948-94; Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 537-538.) In particular, given the modest settlement why should "claims and causes of action arising out of the event or incidents referred to in the pleadings in this action" be released? (Emphasis added.) As worded, that may for example release claims based on the flooding of a home resulting from a failed part.

7.    The deadline to object is 45 days. The Court typically favors 60 days. Why should the deadline for objections be shorter in this case?

8.    Why is email notice sufficient? What happens if the email bounces back? Why should the notice not also be sent to such addresses as Defendant has on file?

Issues re Class Notice

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

10. Does the Class Notice need to be provided in any other language?

11. In the last sentence in para. 3, it should provide that “Each settlement class member who files a claim will receive a check for $30.” But see the query above regarding why this should be a “claims made” settlement.

12. There is no deadline for making a claim or for opting out. Class Notice, ¶¶7 and 8.

13. The Class Notice provides that if the written objections are not timely, the Class Member “will be precluded from making any objections to the proposed class settlement.” The Class Notice also permits Class Members to file their objections with the Court. Class Notice, ¶8. The Court will permit Class Members to object at the Final Approval Hearing whether or not they timely submit a written objection. Additionally, all objections should be collected by the Plaintiff and the objections, any responses, and any documents submitted in connection with the objection or response, shall be submitted to the Court along with the Motion for Final Approval so that the Court may consider them. Objections should not be filed with the Court.

14. Information regarding opt outs is included in para. 7, and then again repeated after para.8. Was this deliberate?

15. The Class Notice should provide more detailed instructions on how to access documents from the court’s website.

16. The Class Notice should advise Class Members not to contact the Court or Clerk with any questions.

Issues re Proposed Order

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

18. The Settlement and Class Notice should be attached to the proposed order as exhibits.

19. On page 1, line 26, the full zip code for the Court is not provided.

20. The proposed Order should conditionally appoint Jack Gershfeld as the Class Representative and Vladi Khiterer of Khiterer, Inc. as Class Counsel.

21. The proposed Order should state that the Class Notice is approved by the Court.

22. The proposed Order should set forth the dates that the Class Notice should be sent out, the date claims, opt outs and written objections must be submitted, the date of the Final Approval hearing, and the date the Motion for Final Approval must be filed.

23. At the end of the Order, include the phrase “IT IS SO ORDERED”.

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

1.    Plaintiff must present a full report to the Court on all opt outs and objections 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. 

The October 5, 2023 status conference is continued to October 12, 2023 at 2 PM.

Plaintiff is ordered to give notice.