Judge: Randall J. Sherman, Case: 2021-01203213, Date: 2023-08-04 Tentative Ruling
The tentative ruling is to continue the hearing on plaintiff’s Motion for Preliminary Approval of Class Action Settlement to November 3, 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 moving papers do not include copies of the PAGA letters that are alleged to have been sent to the LWDA on May 20, 2021 and May 26, 2021. The court needs copies of the letters to verify that the settlement terms are consistent with the notices provided to the LWDA.
The motion does not provide the court with the estimated high, low or average individual payments to the class members. The estimated average payment should be provided for preliminary approval, but if the high and low estimated payments are not available at this time, 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 almost 50% 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 definition of released claims on p. 3 of the settlement agreement includes references to Labor Code §§246, 350, 351, 403, 404, 1102.5, 1198.5 and 1198.12, which are outside the scope of the Complaint, or in the case of §1198.12, does not exist. Thus, these statutes may not be included in the definition of released claims.
The settlement agreement in §III(E) provides that the Administrator will resolve any workweek disputes. The settlement agreement should reflect instead that the Administrator and the parties will attempt to resolve any such dispute, but the court ultimately will decide any unresolved dispute.
The settlement agreement at 9:5-12 and the Exclude Yourself box on p. 2 of the class notice are confusing and wrong in explaining that aggrieved employees in a PAGA action may not opt out of a PAGA settlement, and are bound by the PAGA release. The class notice must say something like, “An employee may not request exclusion from the settlement of a PAGA claim. Thus, if the court approves this settlement, then even if you request exclusion from the settlement, you still will receive an individual settlement share for the PAGA claims and will be deemed to have released the PAGA claims. A request for exclusion will preserve your right to individually pursue only the remaining class claims.”
The reference in §IV(D)(viii) of the settlement agreement to “Class Members who do Opt Out” should actually be to “Aggrieved Employees” or “PAGA Employees”.
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 must be referenced in the class notice.
The top of p. 4 of the class notice incorrectly states the amount of plaintiff’s requested enhancement award as $10,000.00. The request is actually for $7,500.00.
The top of p. 6 and the middle of p. 8 of the class notice incorrectly state the court’s address as 725 W. Santa Ana Blvd. rather than 751 W. Santa Ana Blvd.
The first sentence of Option 2 on p. 7 of the class notice incorrectly states, “You have a right to exclude yourself (“Opt-Out”) from the Settlement, but if you choose to do so, you will not receive any payment from the proposed settlement.” That sentence should instead read, “You have a right to exclude yourself (“Opt-Out”) from the Settlement, but if you choose to do so, you will not receive any payment from the class action portion of the proposed settlement.”
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 to defense counsel unless notice is waived.