Judge: Randall J. Sherman, Case: 2022-01241548, Date: 2022-10-28 Tentative Ruling

The tentative ruling is to continue the hearing on plaintiffs’ 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 (unless counsel adds the missing sub-paragraph numbers).  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.

Plaintiffs’ 31 pages of moving points and authorities exceed not just the usual 15-page limit of CRC Rule 3.1113(d), but even the 20-page limit of CRC Rule 3.764(c)(2).  In any Motion for Final Approval, counsel must comply with all applicable Rules of Court.

The settlement agreement references its ¶¶7.2 and 7.3 at 6:13, its ¶6.5 at 6:22 and 6:26, and its ¶10.1 at 32:11, but there are no ¶¶7.2, 7.3, 6.5 or 10.1.  Sub-paragraph numbering appears to have been dropped.

Similarly, there are no page numbers in the class notice.

The PAGA aggrieved employees are defined as the “PAGA Settlement Representative Group” on p. 7 of the settlement agreement, but are referenced thereafter as the “PAGA Settlement Class”.  The term must be consistent.

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

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.

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

The allocation of only 15% of the settlement payments for wages appears to be low.  The estimated exposure analysis in the motion allocates almost 80% 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, Public Law Center, 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.

The definition of released claims in the settlement agreement on pp. 7-9 is different from the definition of released claims in the settlement agreement on pp. 31-32.  The definitions must be consistent.  In addition, the definition of released class claims may not reference the PAGA letter and need not reference the fully-included PAGA period.  Further, the release language used in the class notice must match the release language used in the settlement agreement, and may require two definitions, for the class release and the PAGA release.

The settlement agreement at 21:13-15 (inconsistently with 28:5-6) and the class notice in §V on p. 3 provide that the Administrator will resolve any workweek disputes.  The documents 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 description of the dispute process in the class notice should match the terms in the settlement agreement.

The class notice requires many corrections:

•  The case name should be in bold on the first page of the notice, and there should be no partial underlining.

•  On page 2 of the notice, in the first paragraph of “Monetary Amounts Under the Settlement”, commas are missing in the dollar amounts for “up to $3500 to each Plaintiff and a total of $10500,” and “$4000 of which will be paid to LWDA and $2000 to the aggrieved employees”.  There is also an improper open-parenthetical in “$(9,000” on line 3 of that paragraph.

•  That same paragraph wrongly shows the split of the $6,000 PAGA payment as $4,000-$2,000 rather than $4,500-$1,500.

•  GSA is incorrectly written as “$GSA” on line 6 of the first paragraph of “Monetary Amounts Under the Settlement” on p. 2.

•  The second paragraph of “Monetary Amounts Under the Settlement” should be yellow-highlighted, since a date still needs to be filled in.

•  The third paragraph of §5 should be yellow-highlighted in two places, since dates still need to be filled in.

•  On p. 3 of the notice, the PAGA period is incomplete even though it is now known.  The notice should state that the PAGA period is from October 26, 2020 to July 1, 2022.

•  The notice incorrectly states on p. 4 that the written objection deadline is 30 days after mailing of the class notice.  Based on the settlement agreement at 9:13-16, the deadline is 60 days.

•  In §X of the notice, the Department must be changed from CX103 to CX105.

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 plaintiffs’ attorneys to support a lodestar cross-check, detailed plaintiff attorney cost breakdowns, an Administrator declaration and invoice, and plaintiffs’ declarations to support the enhancement requests, 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.

Plaintiffs are ordered to give notice of the ruling to defendants unless notice is waived.