Judge: William D. Claster, Case: 21-01188072, Date: 2023-08-18 Tentative Ruling

Plaintiff Elmira Rad's Notice of Motion and Unopposed Motion for Preliminary Approval of Class Action Settlement   ROA 179

Plaintiff’s motion for preliminary approval of class action settlement is CONTINUED to October 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 September 26, 2023. If a revised settlement agreement and/or class notice is submitted, a redline showing all changes, deletions and additions must be submitted as well.

Preliminarily, the moving papers were not accompanied by declarations attesting to any of the factual claims made in the moving papers or authenticating the documents attached to the moving papers. The Court cannot make the factual findings necessary for preliminary approval without admissible evidence. (This includes not only the additional information requested below, but also material the Court would have expected to be verified under oath with initial moving papers, such as facts substantiating the class certification factors, valuation of the settlement under Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, etc.) Please submit the necessary declarations with the supplemental briefing.

In addition, the exhibits attached to the current version of the moving papers are not internally tabbed or bookmarked as required by CRC 3.1110(f)(4). Failure to include tabs or bookmarks in supplemental declarations may result in a further continuance of the hearing.

While all of the below issues are important and need to be addressed, the Court is particularly concerned about how notice of the settlement will be provided to individuals who once lived in homes encompassed by the settlement, but who have since moved. Is there a practical way to give notice that has a reasonable chance of reaching these individuals and, if not, is it fair to bind them to a settlement and a release of claims that they do not know about?

As to the Settlement:

1.            Apart from the City of Irvine v. All American Asphalt matter, are there any other pending suits involving the same or similar issues? Also, are there any pending administrative proceedings involving the same or similar issues?

2.            The class period extends through the Effective Date, as defined, which is either the date the time runs to appeal the final judgment or the date any appeals of the final judgment have concluded. But this is a claims-made settlement, with class members required to submit their claims before the final approval hearing. The earliest the class period will end is sometime in 2024. Suppose someone moves into the class period after the claims deadline but before the class period expires. This person will be a class member whose claims are released by the settlement, but he or she cannot possibly make a claim to receive compensation. How is it fair to force a release on such a person without any possibility of compensation? Shouldn’t the definition of the class period be adjusted to track the claims deadline?

3.            The Court understands the City of Irvine litigation has settled with an agreement for Irvine to buy the AAA facility and shut it down. Have operations ceased at the AAA facility? If not, is there a date certain on which operations will cease?

4.            The definition of “Household” covers all persons who have lived at a property during the class period. The settlement allocates payments on an equal per-Household basis and provides that all persons who lived in a Household will get an equal share of the per-Household allocation. This might make sense for a family, roommates, or similar occupants of a property who have a relationship with one another. But what about successive tenants who have no relationship with one another? Why should they have to split their settlement share with people they have never met?

5.            Relatedly, the settlement provides that if one member of a Household opts out, the entire Household opts out. Again, this might make sense for a family that can discuss the settlement together and come to a single decision. But why should a renter who lived in a property for a year in 2019 be forcibly opted out if a subsequent renter who lived in that same property for a year in 2022 opts out?

6.            Please provide 60 days, rather than 30, for objections and opt-outs.

7.            Per the settlement agreement, renter or tenant claimants must prove their eligibility with a copy of their lease, government documents mailed to their address, or “etc.” What is covered by “etc.”? For example (and without limitation), would a gas or water bill suffice to prove eligibility?

8.            Will claimants be issued a 1099 with their settlement checks?

9.            Because settlement checks will only be distributed to people who affirmatively request payment, the Court would prefer that funds from uncashed checks be sent to the Controller’s Unclaimed Property Fund rather than a cy pres.

10.         In terms of formal discovery, did the parties take any depositions, or did they conduct only document discovery?

11.         Before granting preliminary approval, the Court must “independently satisfy[] itself that the consideration being received for the release of the class members’ claims is reasonable.” (Kullar v. Foot Locker Co. (2008) 168 Cal.App.4th 116, 129.)  For each claim that will be released, please describe Plaintiff’s theory of recovery and the evidence tending to support Plaintiff’s case, as well as Defendant’s expected defenses and supporting evidence. In addition, please provide estimates of the realistic recovery on each claim had the case proceeded to trial.

12.         Please provide declarations setting forth the qualifications of each proposed class counsel.

13.         Please provide an estimate of litigation costs, or alternatively provide a not-to-exceed figure in the settlement agreement.

14.         What experience does class counsel have in self-administration of settlements?

15.         Please provide an estimate of administrative costs, or alternatively provide a not-to-exceed figure in the settlement agreement.

16.         Please ensure the definitions of “Released Claims” and “Unknown Claims” are limited to claims that could have been pled based on the facts alleged in the operative complaint.

17.         At final approval, please submit contemporaneously made billing records for attorney’s fees and costs.  The Court will not be inclined to award an amount of fees and costs greater than the amount stated in the notice.

18.         At final approval, please submit billing records for administrative costs.  The Court will not be inclined to award administrative costs in an amount greater than the amount stated in the notice.

19.         At final approval, Plaintiff is to provide a declaration addressing the enhancement factors set forth 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. 

20.         At final approval, the administrator is to state the per-Household share of the net settlement amount.

As to the Notice:

1.            How will notice be distributed? The Court understands it will be mailed, but how will the class list be prepared? Will notice simply be sent to “Resident” at all addresses in the Class Area? Is there a verified master list of all such addresses?

2.            How will class members who no longer reside in the Class Area receive notice? The Court understands a website will be set up, but how will those class members be informed of its existence?

3.            The notice should state the estimated attorney’s fees, litigation costs, and settlement costs.

4.            The notice should advise class members they have 180 days to cash their checks and advise them of what will happen with the funds from uncashed checks.

5.            Please remove all language stating or suggesting that objections, requests to speak at the final approval hearing, etc. are waived or cannot be considered if not made by the deadline. The Court will decide what objections may be considered and who may speak at the final approval hearing.

6.            Please include remote appearance instructions for the final approval hearing.

7.            Does notice need to be given in any languages other than English?

8.            If any changes are made to the settlement agreement, please make corresponding changes to the Notice.

9.            The font size in the actual Notice may not be smaller than the font size in the proposed notice provided to the Court.