Judge: Peter Wilson, Case: 21-01195684, Date: 2022-07-21 Tentative Ruling

The hearing on the Motion for Preliminary Approval is CONTINUED to September 15, 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 use of limited Court time and resources.

As to the Settlement

1.    The Settlement explains that there are two categories of Class members: Greenskeepers and the rest of the employees. The Settlement provides that Greenskeepers will receive three points per work week and the rest will receive one point per work week. Settlement, ¶5.3. There is no explanation in the Settlement (or in the proposed notice) for why Greenskeepers are treated differently from the other employees, or what the points mean or why they are significant. In particular, nothing indicates whether the points affect the amounts payable per work week, and if so, how.

2.    Relatedly, there is no division between Greenskeepers and nongreenskeepers or any points with regard to the individual PAGA payments. Settlement, ¶5.4. Is the different treatment intentional?

3.    The Settlement requires Class members to indemnify and hold Defendant harmless from and any and all liability related to taxes. See Settlement, ¶¶5.3, 5.5 and ¶7.3. Why should Class members be required to indemnify Defendant? As Class members as defined here appears to include Aggrieved Employees, why should Aggrieved Employees be required to indemnify Defendant?

4.    The release provisions must be redrafted and simplified. Currently, the Settlement has different provisions and definitions for “Released Claims” and “Class Released Claims” and then also refers to the release of civil penalties under PAGA. This is confusing and creates ambiguity. Settlement, ¶¶1.35 and 10.1. Additionally, the release provisions should be consistent with the defined terms. For example, there no “aggrieved employees” in the defined terms, yet the term “aggrieved employees” is used in connection with the PAGA release. Settlement, ¶10.1. In short, in the Settlement and in the Notice (and then properly reflected in the preliminary and any final approval order), Class Members and Aggrieved Employees should be separately defined, the releases as to each should be separately and clearly defined, and the fact that an aggrieved Employee cannot “opt out" if the settlement is given final approval must be clearly stated.

5.    The definition of “Released Parties” does not include, nor does the Settlement mention, Defendant Dove Canyon Golf Club, LLC. Settlement, ¶1.36. Is this intentional?

6.    Plaintiff and his counsel have submitted declarations indicating they have no interest in the cy pres recipient. Defendant and its counsel must also provide such declarations.

7.    The parties should provide a Request for Exclusion Form. The Request for Exclusion Form should state that Aggrieved Employees may not exclude themselves from the PAGA release.

8.    The Settlement Administrator’s declaration of due diligence should be filed along with the motion for final approval, not 10 days prior to the hearing for final approval. Settlement, ¶6.5.

9.    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.

10. 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.   

11. If the Settlement Administrator creates and maintains a website, key documents, including the operative complaint, the Settlement and amendments, the Class Notice and other forms, the Orders for Preliminary Approval and Final Approval, and Final Judgment, should be posted on the website.

12. Are there any related or overlapping actions?

Issues re Class Notice

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

2.    The header of the Class Notice should also reference the PAGA Settlement.

3.    The Class Notice refers to the final approval order and final judgment and payment scheduled in §IV. The Class Notice should explain that these documents will not be available until after the Final Approval hearing.

4.    The definition of “Released Parties” in the Class Notice, §V is not consistent with the definition in the Settlement.

5.    The Class Notice should advise about what will happen to uncashed checks and how long the settlement checks will remain valid. Class Notice, §IV.

6.    The Class Notice provides that the objection will govern if Class Member submits both an objection and a request for exclusion. Class Notice, §VI.C. Why should the objection govern?

7.    The Class Notice should clearly advise that Class Members may object by submitting a written objection or by appearing in person or through counsel at the Final Approval hearing. Class Notice, §IV.C and D.

8.    The Class Notice should be updated with the correct department. Class Notice, §VI.D.

9.    The Class Share Form (Ex. B to the Settlement) states that Defendant’s records will control unless Class Members submit documents that establish otherwise. This is not consistent with the Settlement and Class Notice.

10. There is no reference to the estimated PAGA Settlement Share in the Share Form.

11. There is no reference to the points allocated between Greenskeepers and Nongreenskeepers in the Share Form. If the points affect the individual payments, an explanation must be provided.

Issues re Proposed Order

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

2.    The Settlement should be included as an exhibit.

3.    The proposed Order should remove the attorney information in the caption.

4.    The title of the proposed Order in the caption should reference the PAGA Settlement.

5.    The date of the hearing should be updated. Proposed Order, p. 2:3.

6.    The implementation schedule should include the deadline for disputes.

7.    The implementation scheduled should include the extended deadline for remailed notices.

8.    The proposed Order should include the “not to exceed” amounts for the preliminarily approved disbursements.

9.    The proposed Order should include a definition for the Class and aggrieved employees that is consistent with the Settlement.

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.