Judge Timothy B. Taylor, Case 37-2021-00052766-CU-OE-CTL 2023-09-29 Tentative Ruling

Judge: Timothy B. Taylor, Case: 37-2021-00052766-CU-OE-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023 01:30:00 PM C-72 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Timothy Taylor

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Civil - Unlimited Other employment Motion Hearing to Certify/Decertify Class Action 37-2021-00052766-CU-OE-CTL TADENA-CHUA VS ACUMEN FISCAL AGENT LLC [E-FILE] CAUSAL DOCUMENT/DATE FILED: Motion for Approval of Class Settlement, 08/21/2023

Tentative Ruling on Motion for Preliminary Approval of Class and PAGA Settlement Tadena-Chua v. Acumen, Case No. 2021-52766 Sept. 29, 2023, 1:30 p.m., Dept. 72 1. Overview and Procedural Posture.

This is a wage and hour case in which the plaintiff asserts class claims and claims of 'other aggrieved employees' under PAGA. The complaint filed in late 2021 was superseded by the FAC in February, 2022. ROA 10. Defendant answered the FAC. ROA 14.

At the due-course CMC, after discussing the case with counsel, the court set the case for a class certification motion in March of 2023 (nearly a year after the answer was filed). ROA 21-24.

In August of 2022, after full briefing, the court decided several motions. ROA 57, 64.

The parties failed to prepare the case for class certification. They sent down a stipulation whereby the case would be delayed, which the court declined in early December of 2022. ROA 66-67. No moving papers were filed in the ensuing three months. The parties instead filed a joint case management statement. ROA 68. The court incorporates the minutes for March 17, 2023. ROA 76.

The parties attended a mediation, and were able to resolve the case shortly thereafter. ROA 78. The court has reviewed the moving papers submitted in support of preliminary approval of the class settlement, and approval of the PAGA settlement. ROA 79-83. By design, the motion is unopposed.

The case is also set for a CMC. ROA 75.

2. Applicable Standards.

A. CRC 3.769 sets forth the procedure to be followed when a class action is provisionally settled prior to class certification. First, the court preliminarily approves the settlement, and the class members are notified as directed by the court. CRC 3.769(c)-(f). Second, the court conducts a final approval hearing to inquire into the fairness of the proposed settlement. CRC 3.769(g). The court must determine whether the settlement is fair, adequate, and reasonable. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.

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2951029 41 CASE NUMBER: CASE TITLE: TADENA-CHUA VS ACUMEN FISCAL AGENT LLC [E-FILE] 37-2021-00052766-CU-OE-CTL B. When evaluating the reasonableness of a class action settlement, the trial court should consider the following non-exhaustive list of factors: - Strength of plaintiff's case. This is the most important factor.

- Expense associated with taking the case to trial, i.e., the avoided cost of further litigation.

- Amount or value offered in settlement.

- Extent of discovery completed and state of proceedings.

- Experience and views of counsel.

- Presence of a governmental participant.

- Reaction of class members to proposed settlement.

Id. at 1801. Though the burden is on the proponents of the settlement, 'a presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.' Id. at 1802.

C. Like class actions, PAGA settlements are subject to trial court review and approval. Lab. Code § 2699(l)(2). '[A] trial court should evaluate a PAGA settlement to determine whether it is fair, reasonable, and adequate in view of PAGA's purposes to remediate present labor law violations, deter future ones, and to maximize enforcement of state labor laws.' Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77. Many of the same factors used to evaluate the fairness of a class action settlement – i.e., the strength of the plaintiff's case, the risk, the stage of the proceeding, the complexity and likely duration of further litigation, and the settlement amount – can be 'useful' in evaluating the fairness of a PAGA settlement. Id. 3. Discussion of Fairness of Settlement.

A. Strength of Case: Plaintiff's counsel calculated defendant's realistic exposure to be $308,746.

(Ferraro Decl., ¶ 21.) The gross settlement amount of $200,000 represents 64.7 percent of this realistic exposure. (Id.) The very essence of a settlement is compromise, i.e., the 'yielding of absolutes and an abandoning of highest hopes.' Linney v. Cellular Alaska Partnership (9th Cir. 1998) 151 F.3d 1234, 1242.

B. Avoided Expenses and Other Risks: This is not monetized in the moving papers, but the court can well imagine at least $100,000.00 being spent by plaintiff's counsel getting the case teed up for an opposed class certification motion, and potentially much more.

C. Amount Offered in Settlement: The total amount offered in settlement is $200,000, with no reversion.

The parties intend to allocate these funds as follows: -Attorneys' fees: $66,660 (one-third of gross settlement) -Litigation costs: not to exceed $25,000 -Costs of administration: not to exceed $15,000 to CPT Group* -Class rep 'service award': $5,000 -LWDA payment: $7,500 The foregoing deductions result in a net settlement amount of $80,840 to be distributed among the 442 class members. Based on the court's calculations, this comes out to an average settlement share per class member of approximately $182.90.** All of this the court will have another opportunity to review at the final approval/fairness hearing. Counsel should file declarations establishing their hours and hourly rate (so the court may calculate a lodestar), and justifying the requested costs.

D. Extent of Discovery: Written discovery and informal exchange of documents and information.

(Ferraro Decl., ¶¶ 5, 7.) Calendar No.: Event ID: TENTATIVE RULINGS

2951029 41 CASE NUMBER: CASE TITLE: TADENA-CHUA VS ACUMEN FISCAL AGENT LLC [E-FILE] 37-2021-00052766-CU-OE-CTL E. Experience and View of Counsel: Counsel is experienced in cases of this type and recommends the settlement. (Ferraro Decl., ¶¶ 25, 31, 36.) F. Presence of a governmental participant: A copy of the settlement was submitted to the LWDA on July 27, 2023. (Ferraro Decl., Ex. B.) G. Reaction of class members to proposed settlement: This, of course, will not be fully known until notice of the proposed settlement has been given to the class.

H. Form of Notice. First class U.S. mail.

4. Ruling.

The court finds it is more likely than not that, if preliminary approval is granted, the settlement will meet with approbation of the class. The court further finds that the PAGA settlement is fair, adequate, and reasonable in light of PAGA's policies and purposes. Accordingly, the court grants the unopposed preliminary approval motion and will sign the proposed order (ROA 82) submitted with the moving papers.

The fees sought by counsel will be the subject of additional scrutiny at the fairness hearing. As noted above, counsel should submit declarations establishing their hours and hourly rate (so the court may calculate a lodestar), and justifying the anticipated costs.

Counsel should attend the hearing prepared to discuss future dates to be filled in on the proposed order.

The CMC set for today is hereby ordered off calendar.

___________________________________ *The administration costs are currently estimated to be $12,000. (See Ferraro Decl., ¶ 14.) **The moving papers claim $452.49. The court cannot discern the basis for this calculation.

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