Judge: Randall J. Sherman, Case: 2019-01078609, Date: 2022-12-30 Tentative Ruling

The tentative ruling is to continue the hearing on plaintiff’s Motion for Preliminary Approval of Class Action Settlement to March 17, 2023 at 10:00 a.m.  Counsel must file supplemental papers addressing the court’s concerns (not fully revised papers that would have to be re-read) at least 16 days before the next hearing date.  Counsel should submit an amendment to the settlement agreement rather than any amended settlement agreement.  Counsel also should provide a red-lined version of any revised papers, including the class notice.  Counsel also should provide the court with an explanation of how the pending issues were resolved, with references to any corrections to the settlement agreement and the class notice, rather than with just a supplemental declaration or brief that simply asserts the issues have been resolved.

Although the motion provides the estimated average payment to class members under the proposed settlement, it fails to provide the estimated high and low payments.  Those estimates are needed to assist the court in properly determining the fairness of the proposed settlement to the class.  If those figures are not available now, they must be provided in the motion for final approval.

The allocation of only 20% of the settlement payments for wages appears to be low.  The estimated exposure analysis in the motion allocates about 70% of the class members’ potential (non-PAGA) recovery to wages.  Either an increase to 33 1/3% or an adequate explanation of why the figure is not at least 33 1/3% is required.

The class and PAGA releases include claims under Labor Code §§551, 552, 1174.5, 1194.2, 1198 and 2800, but those statutes are neither referenced nor discussed in the Second Amended Complaint or the LWDA letters, and thus must be removed from the releases.

The parties have not provided the court with any declaration from defense counsel as to any potential conflict of interest as to the proposed cy pres recipient, Legal Aid at Work, as required by CCP §382.4.

The description of this action on p. 1 of the class notice fails to include the claim for failure to reimburse necessary business expenses, which is included in both the LWDA letters and the Second Amended Complaint.

The class notice states on p. 2, “A class member is bound by the determination or judgment entered in the case, whether the class wins or loses, and may not file his or her own lawsuit on the same claims that were decided in the class action.”  This statement is untrue, however, if the class does not become certified.  Moreover, the class member is not bound if they opt out.  Thus, this sentence must be either deleted or modified.

The parenthetical on p. 4 of the class notice, near the beginning of the section entitled “What Am I Releasing Under the Settlement?”, and which says, “(and covenant not to sue or otherwise pursue claims, whether known or unknown, against)” must be deleted.  This court will not approve injunctions against or covenants not to sue by class members.  Res judicata and collateral estoppel arguments should provide defendant with sufficient protection against facing these same claims again.

At the top of p. 7 of the class notice, the term “Fairness Hearing” should be changed to “Final Approval Hearing”, to be consistent with the rest of the class notice.  In addition, the phrase “lodge their objection with the Court” must be changed to “state their objection to the Court”.

Rather than having class members prepare their own opt-out requests, the class notice must include an exclusion form that class members can complete and submit (which the settlement agreement calls for in §K.65).  The form must be referenced in the class notice.

Plaintiff does not provide any information as to how attorneys’ fees will be split between the three firms representing plaintiff and the class.  For final approval, plaintiff must disclose the proposed split so that the court can approve separate attorneys’ fees awards.

Counsel should propose a realistic Final Approval Hearing date, bearing in mind that all papers in support of the Final Approval Hearing, including detailed hourly breakdowns of plaintiff’s attorneys to support a lodestar cross-check, detailed plaintiff attorney cost breakdowns, an Administrator declaration and invoice, and plaintiff’s declaration to support the enhancement request, must be filed at least 16 calendar days before the Final Approval Hearing date, to provide enough time for court review, and must be served in compliance with CCP notice of motion requirements.

The Status Conference set for February 3, 2023 is ordered off calendar.

Plaintiff is ordered to give notice of the ruling to defense counsel unless notice is waived.