Judge: Randall J. Sherman, Case: 2020-01145507, Date: 2022-12-30 Tentative Ruling

The tentative ruling is to continue the hearing on plaintiff’s Motion to Approve PAGA 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 must submit an amendment to the settlement agreement rather than any amended settlement agreement.  Counsel also must provide a red-lined version of any revised papers, including the proposed letter to the aggrieved employees.  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 proposed letter to the aggrieved employees, rather than with just a supplemental declaration or brief simply asserting that the issues have been resolved.

There is an individual settlement discussed in the settlement agreement, but the parties do not disclose to the court the amount of consideration paid to plaintiff.  Nor was such information included in the Declaration of Jean-Claude Lapuyade in Support of Dismissal of Class Claims Without Prejudice Pursuant to CRC 3.770, despite the language of CRC Rule 3.770.  The amount of the individual settlement must be disclosed.

The PAGA Period is defined in §I.O of the settlement agreement as January 4, 2018 to April 25, 2022.  However, the escalation clause in §III.A.2 of the settlement agreement is based on the estimated number of aggrieved employees and pay periods between February 3, 2018 and February 11, 2022.  There is no explanation for this discrepancy.

The parties assert that the amount of the final attorney cost request will be made at the hearing, and is estimated to be less than $30,000.  However, the court must approve an exact amount for attorney costs, and the amount is subject to the court’s review, and so plaintiff may not simply state some final number at the hearing and seek its approval there.  Rather, a final figure, along with supporting documentation, must be provided sufficiently in advance of the hearing so that the court can adequately perform its review.

An invoice from the Administrator is required to support its fee request, which must be in an exact figure, not a “not to exceed” amount, like the settlement agreement provides.

Although §III.I.5 of the settlement agreement addresses what happens if employees do not cash their checks within 90 days, there is no explanation as to what efforts the administrator will make if any of the mailed payments and notices are returned as undeliverable.

The motion does not provide the court with the estimated high, low or average individual payments to the aggrieved employees.  These estimates must be provided for the court to properly evaluate the reasonableness of the settlement.

The PAGA notice provided as Exhibit A to the settlement agreement is deficient.  In listing plaintiff’s claims, it omits the failure to maintain accurate business records, failure to reimburse necessary business expenses, and failure to pay overtime.  There also is no language in the cover letter discussing the fact that certain claims are being released.  The notice also must explain that no claims for unpaid or underpaid wages have settled, and that this settlement is without prejudice to the pursuit of any such claims.

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