Preview
\r V
TENTATIVE RULINGS
7. Bailey v. Encorr Sheets LLC SUPER
F LE D
'
CIv032021228 coquSQE/TL gégfigflgm
SAN BERNARDL 50 DISTRICT
Motion for Final Approval of Class Action Settlement
Tentative Ruling:
MAY 2 6 2023
The moving must demonstrate that ‘the settlement Is fair, adequate and reasonable.”
party
(Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 126; Reed v. United Teachers
Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this
determination.” (In re Microsoft I—V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors
the court mayconsider include “the strength of plaintiffs' case, the risk, expense, complexity
and likely duration of further litigation, the risk of maintaining class action status through trial,
the amount offered in settlement, the extent of discovery completed and the stage of the
proceedings, the experience and views of counsel, the presence of a governmental participant,
and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Co.
(1996) 48 Cal.App.4th 1794, 1801.) This list of factors “is not exhaustive and should be
tailored to each case.” (Ibid.) The court may “engage in a balancing and weighing of factors
depending on the circumstances of each case." (Wershba v. Apple Computer, Inc. (2001) 91
Cal.App.4th 224, 245, overruled on other grounds in Hernandez v. Restoration Hardware
(2018) 4 Ca|.5th 260, 269.)
“Although the court gives regard to what is otherwise a private consensual agreement
between the parties, the court must also evaluate the proposed settlement agreement with the
purpose of protecting the rights of the absent class members who will be bound by the
settlement." (Wershba, supra, 91 Cal.App.4th at p. 245, quoting Dunk, supra, 48 Cal.App.4th
at p. 1801 .) “The court must therefore scrutinize the proposed settlement agreement to the
extent necessary to “‘reach a reasoned judgment that the agreement is not the product of fraud
or overreaching by, or collusion between, the negotiating parties, and that the settlement,
taken as a whole, is fair, reasonable and adequate to all concerned."‘ (Ibid., quoting Officers
for Justice v. Civil Service Com'n (9th Cir. 1982) 688 F.2d 615, 625.)
Nevertheless, the settlement is entitled to “a presumption of fairness 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.” (Kullar, supra, 168 Cal.App.4th at p.
128, quoting Dunk, supra, 48 Cal.App.4th at p. 1802.)
Approval PAGA Settlements
To approve a settlement under the Labor Code Private Attorney General Act, Labor
Code section 2698 (PAGA), the court must find that the settlement is “fair, reasonable,
et seq.
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,
Page 2 CV526052623
\4 \u
TENTATIVE RULINGS
Inc.(2021) 72 Cal.App.5th 56, 77.) The court must find that the plaintiff “has adequately
represented the state's interests, and hence the public interest." (Id. at p. 89.) The LWDA
must have been notified of the settlement and given an opportunity to object.
The Proposed Settlement
This hearing was continued from March 17, 2023, for plaintiff to address certain
discrepancies in the class size and notice. On May 3, 2023, plaintiff submitted a supplemental
declaration from the administrator to address the issues. The supplenmental declaration
explains that defendant provided 460 names. (Defendant’s list had 461 names but one was a
duplicate.) Due to missing addresses, however, the administrator initially mailed only 352
notices. Defendant then submitted additional addresses in two sets, first 56 more addresses
and then 49 more, for a total of 105. The administrator mailed notices to these 105 individuals
for mailings totaling 457. Therefore, it appears that three putative class members still were not
sent notice (460-457=3). Counsel should be prepared to discuss whether these individuals
should be excluded from the class.
Ten were deemed undeliverable, but these individuals will not be
notice packets
excluded from the class. Counsel should be prepared to address whether the funds payable to
these ten individuals should be paid to the desiqnated cypres, Leqal Aid and Work. or
submitted to the State comptroller for deposit in the Unclaimed Property Fund.
At the last hearing, the motion sought to avoid payment to those class members for
whom defendant did not have social security numbers. The court criticized this approach, and
the administrator now states that these individuals will receive their shares of the settlement,
but that the administrator will withhold additional taxes. The court approves this approach.
Counsel should confirm this understandinq.
The administrator also states that there were no objections to the settlement and that
there are no outstanding payment disputes.
There was one opt-out. Therefore, the class size is either 459 (460-1 =459) or 456 (457—
1:456), depending on the court’s treatment of the three individuals who were not sent any
notice.
Assuming the three individuals who were not sent notice are excluded from the class,
the court finds that the class settlement of $600,000.00 for 456 class members is fair,
reasonable, and adequate? The settlement amount appropriate given the strength of plaintiff’s
case and the risks of litigation. Adequate discovery and investigation has occurred. There is
no evidence of fraud or collusion. Class counsel are well-qualified to represent the class. The
representative is also qualified to represent the class. The settlement was reached through
arms-length negotiations with the assistance of an experienced and well-regarded mediator,
Paul Grossman.
2
Counsel must provide the names of the excluded individuals for inclusion in the judgment.
Page 3 CV526052623
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\r V TENTATIVE RULINGS 7. Bailey v. Encorr Sheets LLC SUPER F LE D ' CIv032021228 coquSQE/TL gégfigflgm SAN BERNARDL 50 DISTRICT Motion for Final Approval of Class Action Settlement Tentative Ruling: MAY 2 6 2023 The moving must demonstrate that ‘the settlement Is fair, adequate and reasonable.” party (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 126; Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337.) The court has “broad discretion in making this determination.” (In re Microsoft I—V Cases (2006) 135 Cal.App.4th 706, 723.) Relevant factors the court mayconsider include “the strength of plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.) This list of factors “is not exhaustive and should be tailored to each case.” (Ibid.) The court may “engage in a balancing and weighing of factors depending on the circumstances of each case." (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245, overruled on other grounds in Hernandez v. Restoration Hardware (2018) 4 Ca|.5th 260, 269.) “Although the court gives regard to what is otherwise a private consensual agreement between the parties, the court must also evaluate the proposed settlement agreement with the purpose of protecting the rights of the absent class members who will be bound by the settlement." (Wershba, supra, 91 Cal.App.4th at p. 245, quoting Dunk, supra, 48 Cal.App.4th at p. 1801 .) “The court must therefore scrutinize the proposed settlement agreement to the extent necessary to “‘reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned."‘ (Ibid., quoting Officers for Justice v. Civil Service Com'n (9th Cir. 1982) 688 F.2d 615, 625.) Nevertheless, the settlement is entitled to “a presumption of fairness 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.” (Kullar, supra, 168 Cal.App.4th at p. 128, quoting Dunk, supra, 48 Cal.App.4th at p. 1802.) Approval PAGA Settlements To approve a settlement under the Labor Code Private Attorney General Act, Labor Code section 2698 (PAGA), the court must find that the settlement is “fair, reasonable, et seq. 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, Page 2 CV526052623 \4 \u TENTATIVE RULINGS Inc.(2021) 72 Cal.App.5th 56, 77.) The court must find that the plaintiff “has adequately represented the state's interests, and hence the public interest." (Id. at p. 89.) The LWDA must have been notified of the settlement and given an opportunity to object. The Proposed Settlement This hearing was continued from March 17, 2023, for plaintiff to address certain discrepancies in the class size and notice. On May 3, 2023, plaintiff submitted a supplemental declaration from the administrator to address the issues. The supplenmental declaration explains that defendant provided 460 names. (Defendant’s list had 461 names but one was a duplicate.) Due to missing addresses, however, the administrator initially mailed only 352 notices. Defendant then submitted additional addresses in two sets, first 56 more addresses and then 49 more, for a total of 105. The administrator mailed notices to these 105 individuals for mailings totaling 457. Therefore, it appears that three putative class members still were not sent notice (460-457=3). Counsel should be prepared to discuss whether these individuals should be excluded from the class. Ten were deemed undeliverable, but these individuals will not be notice packets excluded from the class. Counsel should be prepared to address whether the funds payable to these ten individuals should be paid to the desiqnated cypres, Leqal Aid and Work. or submitted to the State comptroller for deposit in the Unclaimed Property Fund. At the last hearing, the motion sought to avoid payment to those class members for whom defendant did not have social security numbers. The court criticized this approach, and the administrator now states that these individuals will receive their shares of the settlement, but that the administrator will withhold additional taxes. The court approves this approach. Counsel should confirm this understandinq. The administrator also states that there were no objections to the settlement and that there are no outstanding payment disputes. There was one opt-out. Therefore, the class size is either 459 (460-1 =459) or 456 (457— 1:456), depending on the court’s treatment of the three individuals who were not sent any notice. Assuming the three individuals who were not sent notice are excluded from the class, the court finds that the class settlement of $600,000.00 for 456 class members is fair, reasonable, and adequate? The settlement amount appropriate given the strength of plaintiff’s case and the risks of litigation. Adequate discovery and investigation has occurred. There is no evidence of fraud or collusion. Class counsel are well-qualified to represent the class. The representative is also qualified to represent the class. The settlement was reached through arms-length negotiations with the assistance of an experienced and well-regarded mediator, Paul Grossman. 2 Counsel must provide the names of the excluded individuals for inclusion in the judgment. Page 3 CV526052623