Judge: Randall J. Sherman, Case: 2021-01182371, Date: 2022-10-28 Tentative Ruling

The tentative ruling is to continue the hearing on plaintiff’s Motion for Preliminary Approval of Class Action Settlement to January 27, 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.

The motion fails to provide the court with the estimated number of aggrieved employees subject to the settlement.

The allocation of only 20% of the settlement payments for wages appears to be low.  The estimated exposure analysis in the motion allocates over 60% of the class members’ potential 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 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, Girls Inc. of Orange County, as required by CCP §382.4.

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.  The form should be referenced in the class notice.

There is no provision in the settlement agreement as to how the class members and aggrieved employees will be given notice of the judgment.  The Proposed Judgment or Order will have to provide how the parties will comply with CRC Rule 3.771(b), which states: “Notice of the judgment must be given to the class in the manner specified by the court.”  The notice may be included with the checks that are mailed to the class members or posted on the administrator’s website.

The class notice must be revised on pp. 4-5 under “Exclude Yourself from the Settlement”, which mistakenly says, “Any person who submits a timely Request for Exclusion from the Settlement … shall be barred from participating in any portion of the Settlement, and shall receive no benefits from the Settlement.”  As the class notice correctly notes on p. 3, each class member who did not sign a Release Agreement will receive a PAGA payment regardless of whether they submit a Request for Exclusion.

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.

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