Judge: William D. Claster, Case: 21-01178139, Date: 2022-10-28 Tentative Ruling
Plaintiff Sidney Judge's Notice of Motion and Motion for Approval of Class Settlement ROA 108
Plaintiff’s motion for approval of PAGA settlement is CONTINUED to January 6, 2023 at 9:00 a.m. in Department CX104 to permit the parties to respond to the following items of concern. Any supplemental briefing shall be filed on or before December 28, 2022. If a revised settlement agreement and/or proposed notice is submitted, a redline version showing all changes, deletions, and additions must be submitted as well. In addition, Plaintiff must provide proof of service of any revised settlement agreement and supplemental papers on the LWDA.
As to the Settlement:
2. Please provide a bid from the settlement administrator.
3. Will individual PAGA payments to aggrieved employees be treated as non-wage income with a 1099 provided? The Court assumes so, but the agreement appears silent on this topic.
4. Please confirm that the inclusion of Labor Code § 558 in the release is meant to cover only claims for civil penalties under PAGA, not the State’s ability to pursue unpaid wages on behalf of the aggrieved employees. (See ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.)
5. Per § 3.2.3 of the agreement, “The Aggrieved Employees assume full responsibility and liability for taxes owed on their share of the Individual PAGA Payments and hold Defendant harmless, and indemnifies Defendant, from any dispute or controversy regarding this payment.” Please delete this language. The aggrieved employees are not party to this case, so the Court will not approve a settlement that binds them in any way other than by operation of PAGA.
6. What portion of time, pay, etc. records for the PAGA period was turned over? (E.g., records for 10% of all pay periods worked?)
7. Counsel’s valuation of the PAGA claim is inadequate for the Court to discharge its approval duties. “[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.) To that end, for each predicate Labor Code violation, please provide further information about the strengths and weaknesses of Plaintiff’s claims and Defendant’s expected defenses, including the evidence supporting both sides’ cases. (See ibid. [citing Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116 and Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794].)
8. Plaintiff states that Defendant changed its meal and rest break policy as a result of this litigation. What did the old policy provide? What does the new policy provide?
9. Please provide attorney time and billing records for lodestar cross-check purposes.
10. If Plaintiff wishes to receive an enhancement payment, she must submit a declaration that addresses the factors discussed in Golba v. Dick’s Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251 and Clark v. Am. Residential Servs. LLC (2009) 175 Cal.App.4th 785, including the amount of time and effort spent on the litigation.
11. Please provide a copy of Plaintiff’s individual settlement agreement. The Court requires this information to evaluate the fairness of the PAGA settlement. If the parties wish it to remain confidential, they may temporarily lodge a copy under seal and move for permanent sealing per CRC 2.551.
As to the Notice:
2. Please include language informing aggrieved employees that they will not be retaliated against for cashing a settlement check.
3. Should notice be given in any languages other than English?