Judge: Robert C. Longstreth, Case: 37-2020-00023727-CU-OE-CTL, Date: 2023-11-09 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 08, 2023

11/09/2023  08:30:00 AM  C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited  Other employment Motion Hearing (Civil) 37-2020-00023727-CU-OE-CTL BOGUES VS IKES PLACE #6 [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Plaintiffs' Motion for an Order (1) Preliminarily Approving the Class Action Settlement; (2) Approving Notice of Class Action Settlement; and (3) Setting Hearing for Final Approval is CONTINUED to December 8, 2023 to allow time for supplemental briefing. (ROA 88.) Plaintiffs have not yet provided sufficient evidence for the court to conclude, on a preliminary basis, the settlement is fair and reasonable. In particular, Plaintiffs have not offered sufficient evidence of the parties' investigation into the claims to allow the court to intelligently evaluate the proposed settlement.

(7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146.) Plaintiffs' counsel's statements to the effect that some investigation was done, and that an unnamed expert calculated Plaintiffs' estimated potential damages, are not sufficient to support preliminary approval.

(Yeremian Decl. ¶¶ 11-14, 27, 37, 41, 45.) Likewise, Plaintiffs have not offered sufficient analysis of the strengths and weaknesses of their case.

Plaintiffs' counsel states that Defendant 'vigorously contested liability.' (Id. at ¶ 13.) The court notes that Plaintiffs initially obtained entry of default against Defendant. Following a stipulation to set the entry of default aside, the parties ultimately settled the case about six months after Defendant filed its answer.

(ROA 44, 47, 59.) It is not clear whether any formal discovery was conducted during that time, nor are there sufficient details regarding any informal discovery, exchange of information, or other investigation that might support preliminary approval of the proposed settlement. In particular, there are no representations as to the completeness or comprehensiveness of the documents obtained and reviewed. (Yeremian Decl. ¶¶ 13, 62; Settlement Agreement at ¶ 2.4.) The court notes this is a relatively small settlement of $105,000.00, and that the parties have agreed to allow Defendant to fund the settlement with four payments over the course of about ten months. No briefing was provided to the court to explain why a staggered payment schedule would be appropriate here, or whether Defendant has made payment consistent with this schedule so far.

The release of claims in the proposed Settlement Agreement appears to contain an error, or else would require further explanation from Plaintiffs. It states: 'Except as set forth in Section 6.3 of this Agreement, Participating Class Members do not release any other claims, including claims for vested benefits, wrongful termination, violation of the Fair Employment and Housing Act, unemployment insurance, disability, social security, workers compensation, or claims based on facts occurring outside the Class Period.' (Yeremian Decl., Exh. A, Agreement at ¶ 5.2 (italics added); see also ¶¶ 7.5.3; Notice, ¶ 9.) However, Section 6.3 of the Agreement discusses the responsibilities of class counsel and Defendant's counsel in seeking preliminary approval of the settlement. There is no release of claims in this section.

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3041941  5 CASE NUMBER: CASE TITLE:  BOGUES VS IKES PLACE #6 [E-FILE]  37-2020-00023727-CU-OE-CTL The proposed Class Notice appears to contain multiple errors as well. First, it identifies the Class Period as July 9, 2016 through February 4, 2023 whereas the Settlement Agreement states the Class Period is July 2, 2016 through February 4, 2023. (Notice at p.1; Settlement Agreement at ¶ 1.12; Yeremian Decl., ¶¶ 9, 16; see also Settlement Agreement at ¶¶ 4.1, 8.) Second, it states the parties hired a 'retired judge' to resolve the case, but counsel's declaration states the mediator was an attorney (Gail Glick, Esq.). (Notice at ¶ 2; Yeremian Decl. at ¶ 14.) Third, it informs the settlement class that Defendant will fund the settlement not more than 14 days after final judgment, contrary to the Settlement Agreement which sets up a payment schedule. (Notice, ¶ 3.1; Settlement Agreement at ¶ 4.3.) Fourth, it provides the wrong instructions for participating remotely in the final approval hearing, with a link given for what appears to be the Orange County Superior Court. (Notice, ¶ 8.) Plaintiff has not provided evidence of submission of the settlement to the Labor & Workforce Development Agency, as required by statute. (Lab. Code § 2699(l)(2).) Plaintiff is to submit a supplemental brief of no more than ten (10) pages addressing the court's concerns, and amended proposed settlement documents if the parties believe they are needed, on or before November 29, 2023.

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