CIVIL COMPLEX CENTER
DEPARTMENT CX 101
JUDGE GLENDA SANDERS
Procedural guidelines for several types of motions and dismissals handled regularly in this department are set forth here. The guidelines appear after the Tentative Rulings.
LAW & MOTION CALENDAR
September 20, 2021
REVISED PROCEDURES DUE TO COVID-19.
In spite of the lifting of some restrictions in California, appearances in non-evidentiary matters will continue to be conducted via CourtCall, CourtCall Video or Zoom where a Zoom appearance is specifically ordered. See below. Parties must continue to check the Court’s website frequently at https://www.occourts.org for the most current information regarding Civil operations and appearances in this department, Dept. CX 101.
All non-evidentiary matters and those evidentiary matters wherein the court, in its discretion requires virtual appearances, complex proceedings will continue to be conducted remotely by telephonic appearance through CourtCall with each party having the option to appear by CourtCall Video if the Court, in its discretion, permits a video instead of an audio appearance. The court may order an appearance using the Zoom virtual platform in certain matters. See further below.
If any party wants a record of the proceedings, that party must arrange to have a court reporter do so remotely via CourtCall or Zoom where the latter is ordered. Please see further information concerning court reporters below. If any party requests a transcript of the proceedings, the court reporter must send the transcript to the court as an attachment to an email addressed to LBrown@occourts.org (Clerk) and GValenzuela@occourts.org. (Courtroom Assistant)
If a party is unable to appear by way of CourtCall, please contact the Court Clerk at (657) 622-5301. For further information about remote appearances, please see, “Civil Limited, Unlimited & Complex Appearance Process” at:
The public may listen to remote court hearings at no cost by calling the public access number (657-231-1414) and entering the access code for this Department (12129898#) and then the PIN for this Department (12129898#). Please note that the PIN is the same number as the number for the access code. The public will be able to listen, but not participate in the proceedings. See:
If the court informs the parties that it will be conducting a hearing via the Zoom platform, the parties and the public may check in via the Zoom link embedded in Department CX 101’s Complex Civil Courtroom Schedule & Requirements by going to the court website, selecting the “Civil Division” tab, then “Civil Complex”, then “Complex Civil Courtroom Schedule & Requirements, Judge Sanders’ Schedule” and then clicking on the Zoom link embedded there entitled “Dept. CX101 Virtual Courtroom.”
The public will be permitted to listen but not participate.
Attorneys are required to use a display name that identifies them. They must also record their appearances in the chat box by providing their names, the name of their law firm, the matter in which they are appearing and the parties they represent.
OTHER INFORMATION ABOUT THIS DEPARTMENT
COURT REPORTERS AND TRANSCRIPTS: Court reporters are not available in this department for any proceedings. Please consult the Court’s website at www.occourts.org concerning arrangements for court reporters. If a transcript of the proceedings is ordered by any party, that party must ensure that the Court receives an electronic copy by email as mentioned above. Under prevailing circumstances caused by Covid-19, court reporters must record proceedings remotely through CourtCall. See above.
SUBMISSION ON THE TENTATIVE
If a tentative ruling is posted and ALL counsel intend to submit on the tentative without oral argument, please advise the clerk by emailing him as soon as possible. The email should be directed to LBrown@occourts.org and copied to GValenzuela@occourts.org. If all sides submit on the tentative ruling and so advise the court, the tentative ruling shall become the court’s final ruling and the prevailing party shall give Notice of Ruling. If there is no submission or appearance by either party, the court will determine whether the matter is taken off calendar or will become the final ruling.
The court’s minute order will constitute the order of the court and no further proposed orders must be submitted to the court, unless the court or the law specifically requires otherwise. Where an order is specifically required by the court or by law, the parties are required to do so in accordance with California Rules of Court, rule 3.1312(c) (1) and (2).
Where a proposed order is required (even where the motion is unopposed), the parties are ordered to submit it in 2 formats. One copy is to be filed in Word (without attachments), and another copy in .pdf format with all attachments/exhibits attached to it in accordance with the procedure set forth in CRC, rule 3.1312 (c) (1) and (2). Even when the order is unopposed and even when it is sought by stipulation, it must be submitted in these 2 formats in compliance with the procedure set forth in CRC, rule 3.1312 (c) (1) and (2).
Failure to follow CRC, rule 3.1312 may result in the order and/or the exhibits to the order not being brought to the court’s attention. If in doubt, please consult your electronic service provider or the clerk in Department CX 101 at (657) 622-5301/5370/5371.
Garcia vs. Emerald Landscape Services, Inc.
The court has read the Administrator’s declaration indicating that the check cashing period has not yet elapsed and that paperwork regarding the uncashed checks will subsequently be sent to the Unclaimed Property Fund maintained by the State Controller.
The Administrator estimates that all unclaimed property from the settlement will be distributed to the State in approximately October 2022.
In light of the above, the final accounting hearing is CONTINUED to October 28, 2022 at 1:30 p.m. in Department CX101. If the funds are sent prior to the October 28, 2022 date, moving party should so inform the court by calling the clerk and submitting the appropriate declaration in which event the October 28, 2022 hearing will be vacated.
A supplemental declaration addressing the status of any remaining uncashed checks shall be filed no later than 5 court days prior to the continued hearing.
The court does not require any physical or remote appearance at the hearing scheduled for 9/17/2021.
Del Rivero vs. Centex Homes of California, LLC
1. Motion for Order to Stay Proceedings (Pulte)
2. Motion for Order to Stay Proceeding (Centex)
Defendants Pulte Home Corporation and Centex Homes move, pursuant to Civil Code §930(b), for an order staying the action pending class members’ compliance with the prelitigation procedures of the Right to Repair Act (Civil Code §§895, et. seq.)(“RORA”). The motions are denied.
Civil Code §910 requires a litigant to comply with RORA’s prelitigation procedures before filing a construction defect action:
“Prior to filing an action against any party alleged to have contributed to a violation of the standards set forth in Chapter 2 (commencing with Section 896), the claimant shall initiate the following prelitigation procedures . . . ”
Civ. Code §910.
Civil Code §931 provides an exception to this requirement, stating, in relevant part:
“As to any class action claims that address solely the incorporation of a defective component into a residence, the named and unnamed class members need not comply with this chapter.” (Emphasis added.)
Civ. Code §931.
Defendants argue that §931 does not apply because Plaintiffs’ claims do not address solely the incorporation of a defective component. More specifically, Defendants argue that Judge Perk’s 2013 Order requiring the named Plaintiffs to comply with the prelitigation procedures and finding that the “single component exception to SB800 [under Civil Code Section 931] does not apply” is the law of the case.
“The doctrine of ‘law of the case’ deals with the effect of the first appellate decision on the subsequent retrial or appeal: The decision of an appellate court, stating a rule of law necessary to the decision of the case, conclusively establishes that rule and makes it determinative of the rights of the same parties in any subsequent retrial or appeal in the same case.” (Morohoshi v. Pacific Home (2004) 34 Cal.4th 482, 491 (emphasis in original).)
“The doctrine is . . . harsh. Accordingly, [our Supreme Court has] declined to adhere to it where its application would result in an unjust decision, e.g., where there has been a manifest misapplication of existing principles resulting in substantial injustice, or where the controlling rules of law have been altered or clarified by a decision intervening between the first and second appellate determinations.” Morohoshi v. Pac. Home (2004) 34 Cal.4th 482, 491–92, (2004) (internal citations omitted).
Here, Defendants argue that Judge Perk’s ruling granting a stay of this case pending compliance with RORA and finding that the “single component exception to SB800 [under Civil Code Section 931] does not apply” is law of the case. But Judge Perk’s ruling is not an appellate decision. And Defendants cite no authority supporting the contention that the summary denial of Plaintiffs’ writ and petition for review, turns a trial court’s ruling into law of the case.
Also, a court has the power to change any ruling it has made if it continues to have jurisdiction in the action. Huff v. Securitas Security Services USA, Inc. 23 Cal. App. 5th 745,763; Le Francois v. Goel (2005) 35 Cal. 4th 1094, 1095, 1106-1109; Cal. Code. Civ. Proc. § 1008(c). Clearly, this court continues to have jurisdiction in this action.
Furthermore, even if Judge Perk’s finding is law of the case, there is an exception to the doctrine where controlling rules of law have been clarified by a subsequent decision. This exception applies here where the Kohler decision was issued after Judge Perk’s ruling. Kohler Co. v. Superior Court (2018) 29 Cal.App.5th 55.
The 2018 Kohler decision interpreted §931, finding: “[i]n short, we hold that the Act does not permit class action claims except when those claims address solely the incorporation into the home of a defective component other than a product that is completely manufactured offsite.” (Kohler at 72.)
In reaching this conclusion, the Kohler court reasoned that the “ . . . more logical interpretation [of §931] is that the last sentence, although inartfully written, carves out a limited exception to the exclusion of class actions—for ‘claims that address solely the incorporation of a defective component into a residence’ (§931)—and waives the prelitigation procedures for those class action claims.” (Kohler at 69-70 (emphasis added)).
This case has been certified as a class action, and thus, under the reasoning of Kohler, Plaintiffs must necessarily be exempt from the prelitigation procedures set forth in Chapter 4 of the Act, pursuant to Civil Code §931 if the claims address “solely the incorporation of a defective component into a residence”. The court finds that the claims here do fall within that category, and so Kohler is binding.
While this court is not bound by the unpublished 2020 Smith and Brasch II decisions, their reasoning is persuasive and so this court dependently adopts that reasoning in finding that the claims at issue in Del Rivero address “solely the incorporation of a defective component into a residence”. As result, under Kohler the class members are exempt from the prelitigation procedures.
Defendants argue that the Smith and Brasch II courts, in fact, disagreed with Kohler’s “exception to the exception” for claims under §896(g)(3)(E) (i.e., products that are completely manufactured offsite), but the claims in Smith, Brasch II and this case are made under §896(a) (14) and (15), and so the Smith and Brasch II courts’ concern with the Kohler decision is irrelevant here. What is relevant to this case, and is independently adopted by this court, is the following reasoning set forth in Brasch II and Smith:
“Is this a claim ‘that addresses solely the incorporation of a defective component into a Residence’? (Kohler, supra, 29 Cal.App.5th at pp. 71-72.) The answer is clearly yes. The complaint alleges defendant violated the Act by ‘the incorporation, at the time of original construction, of defective copper pipe into Plaintiffs’ and class members’ residences, which is leaking and/or corroding so as to impede the useful life of the system.’ The common questions of fact that render the case suitable for class treatment, according to the complaint, include ‘[w]hether California Civil Code sections 896(a)(14) and/or (15) were violated by the incorporation, selection, design, manufacture, supply and/or utilization of the pipe at issue herein’? It is indisputable that this case is about the incorporation of a defective component into plaintiffs’ homes at every stage of the process. We therefore find that, to the extent Kohler is otherwise correct, this falls into the exception without the exclusion drawn from section 896, subdivision (g)(3). At a minimum, that exclusion does not apply here.”
Smith v. Pulte Home Corporation (Cal. Ct. App., Aug. 27, 2020, No. G057435) 2020 WL 5088096, at *7, review denied (Dec. 9, 2020), Exh. A. to Oppn.; see also Brasch v. K. Hovnanian Enterprises, Inc. (“Brasch II”) (Cal. Ct. App., Aug. 27, 2020, No. G057436) 2020 WL 5051088, at *7, review denied (Dec. 9, 2020), Exh. B. to Opp’n)
Defendants’ argument that Judge Perk’s findings are more relevant than the Smith and Brasch II decision because it was purportedly based on the Tolman Declaration, rather than the allegations of the pleadings, is not well taken. Judge Perk’s ruling cites to various allegations of the First Amended Complaint in support of his findings, and nowhere mentions the Tolman Declaration. (Exh. A to Ferrentino Decl. at 2).
Further, the operative complaint is now the Third Amended Complaint, so Judge Perk’s findings were based on a now inapplicable pleading.
The claims at issue here, like the claims in Smith and Brasch II, fall within §931’s exception and are therefore not subject to the prelitigation procedure set forth in Chapter 4 of RORA. Thus, there is no need for the requested stay.
For the above reasons, the court denies the motions.
The court requests that all parties email the clerk, Mr. Brown, at firstname.lastname@example.org before 12:00 PM on the day of the hearing if they wish to submit on the tentative.
South Coast Shipyard, Inc. vs. NPB Marina LLC
Motion for Determination of Good Faith Settlement
Defendant Clauss Construction seeks an order that the settlement between defendant Clauss Construction (“Clauss”) and Plaintiffs South Coast Shipyard, Inc. and Peter Stewart (“Plaintiffs”) was entered into in good faith within the meaning of Code of Civil Procedure section 877.6 and for an order barring any other joint tortfeasor or co-obligor from any further claims against Clauss for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. The Motion is granted.
The court concludes that the settlement between the parties was made in good faith within the meaning of CCP §877.6 because it satisfies the factors set forth in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499. Clauss has sufficiently shown that the settlement is within the reasonable range of its proportional share of liability for Plaintiffs’ alleged damages. (Gaines Decl. ¶¶ 13-15; Opp’n Exh. C ). Exhibit C to the opposition sets forth Damages Report in which Plaintiff claims total damages of approximately $5.2 million but specifies its “hard” Cost of Repairs in the much lesser sum of about $2.9 million. For the reasons set forth below, the settlement is not so far out of the ballpark as to be inconsistent with the equitable goals of CCP §877.6.
The motion is opposed by Defendants/Cross-Complainants Wieland Davco Corporation and NP Beach Marina LLC (“RPs”). CCP § 877.6(d) provides that “[t]he parties asserting the lack of good faith shall have the burden of proof on that issue.” RPs have not met their burden.
RPs argue, without citing any authority, that the motion should be denied because the moving parties did not attach a copy of the settlement agreement. They further argue that the settlement terms have not been sufficiently described. The moving party has sufficiently described the settlement as involving a payment of $240,000, or $120,000 to each of the two Plaintiffs. (Gaines Decl. ¶¶13-14). RPs have not provided any evidence or argument demonstrating that there might be any other material terms to the agreement that would indicate that the settlement lacks good faith.
RPs next contend that the settlement is disproportionate. The court disagrees. Even comparing the $240,000 settlement against the slightly more than $5.2 million in claimed damages set forth in Plaintiffs’ “Property Damage Report and Cost of Repair Estimate,” the settlement is in the ballpark, given that Clauss’s liability as to the sole remaining claim against it, is heavily in dispute as reflected in its partially successful summary adjudication motion and this court’s December 11, 2021 ruling granting summary adjudication on the negligence claim. (See ROA 414, 12/11/21 Minute Order.) Clauss Construction also sought summary adjudication of the nuisance claim against it, asserting both statute of limitations and “superseding cause” defenses. Specifically, Clauss Construction sought to establish that work was performed by Vertical Earthworks after the labor performed by Clauss Construction. Although the court denied the motion as to the nuisance claim, finding there were triable issues of fact as to both of these defenses, they will likely be vigorously pursued at trial. (ROA 414 at 5-6.)
RPs contend that the motion cannot be granted because Mr. Clauss is one of the settling parties, and the motion does not address his allocation. RPs have provided no evidence that Mr. Clauss is a party to the agreement, and Clauss Construction confirms in its reply that Mr. Clauss is not a party to the agreement. Further, even if Mr. Clauss were a party to the agreement, since he is not one of the moving parties on this motion, he would not, and does not, receive any benefit from the good faith settlement determination. (See the Court’s Order granting the motion.) RPs’ concern regarding Mr. Clauss is unwarranted.
RPs also argue that the motion should be denied because there was collusion between Plaintiffs and Clauss, based on Clauss’ alleged failure to participate in mediation or to include RPs in the settlement. First, Clauss’ counsel contends that Clauss Construction did participate in the mediation but spent little time with the mediator who, according to Clauss’ counsel, set the agenda and in doing so spent the bulk of the mediation time with Responding Party, Weiland-Davco. (Reply at 4:18-25). Second, even if Settling Parties had not participated in the mediation this, in and of itself, would not be indicative of collusion.
Furthermore, other indicia of good faith belie the accusation of collusion. These include Settling Parties’ spirited defense of this action, their persistent efforts throughout the litigation to attempt to settle it, and their successful efforts to narrow their liability by successfully moving for summary adjudication of the negligence claim.
Finally, RPs request the opportunity to depose Mr. Clauss, who is not a party to the settlement, and Plaintiffs’ expert, Steven Strickler, in order to oppose the motion. RPs contend that Mr. Clauss will shed light on Clauss Construction’s financial condition and insurance policies, while Mr. Strickler will ostensibly provide information regarding Plaintiffs’ claimed damages. The court finds the proposed additional discovery unnecessary. The settlement amount is reasonable in light of the claimed damages set forth in Plaintiffs’ “Property Damage Report and Cost of Repair Estimate,” and the defenses likely to be asserted by Clauss at a trial of this matter. (Opposition, Ex. C: ROA 414.) Because the settlement amount appears to be “in the ballpark”, the existence of insurance policies and moving party’s financial condition, are irrelevant and so discovery concerning those issues is unnecessary.
The court is also not persuaded by RPs’ contention that they need discovery in order to oppose this motion when, as MP argues, they have failed to seek any discovery in the 4.5 year life of this litigation and the 2.5 years since the filing of the cross-complaint. (Reply at 6:10-16.)
The court notes that the Proposed Order submitted by the moving party needs to be corrected. First, the Proposed Order indicates that Patrick Michael Clauss is one of the moving parties. He is not. Second, the last sentence of the proposed order is overbroad. The language must track the language found in CCP §877.6(c).
The court has now signed the amended proposed order emailed to the clerk immediately prior to the hearing.
Moving party to give notice of this ruling and to serve the order on all parties in the case.
ODG Sweegen LLC vs. Chen
1. Demurrer to Answer Re: Sweegen Defendants
1. Demurrer to Answer re: Non- Sweegen Defendants
Continued to October 1, 2021
Kang vs. Swapsy, Inc.
1. Demurrer to First Amended Complaint Continued to 12/03/2021
2. Motion to Strike Portion of the First Amended Complaint Continued to 12/03/2021
3. Status Conference Continued to 10/13/2021
Huang vs. Tawa Supermarket, Inc.
1. Motion for Approval of Class Settlement
2. Status Conference
Having reviewed the proposed Settlement Agreement, the proposed Notice and the accompanying papers, the Court has the following concerns:
1. Counsel needs to provide actual numbers showing their calculation of the maximum and reasonable exposure values that led counsel to the conclusion that the settlement amount is reasonable.
2. Counsel needs to explain why the “relevant period” begins on 3/23/16 rather than 2/1/16 (one year prior to service of the pre-filing notice on the LWDA).
3. The Settlement Agreement needs to include a provision for location of alternative addresses for Aggrieved Employees in the event that a check is returned, and for re-mailing of the returned check(s).
4. The Notice does not include the total Settlement Amount and indication that there are no deductions therefrom. It also does not mention or explain the release. While the release language does not need to be set forth verbatim, it should be summarized in a manner that renders it intelligible to the layperson. The Notice must be revised to include these items.
5. The Notice should also inform the Aggrieved Employees that they can view the case file at the following link: https://ocjustice.occourts.org/civilwebShoppingNS/Login.do
6. The following need to be addressed in the Proposed Order so that the allegedly aggrieved employees have a fuller understanding of the essential terms and consequences of the settlement:
a. The release language included in Par. 4 of the Proposed Order differs slightly from the release in the Settlement Agreement. The language needs to be corrected so that it mirrors the language in the Settlement Agreement.
b. The Settlement Agreement needs to be referenced in the Order by the ROA number of the declaration to which it is attached.
c. A copy of the Notice must be attached to the Order as Exhibit 1.
d. The Order should indicate that the action will be dismissed with prejudice at the final accounting hearing assuming full compliance with this Order by that date.
e. A proposed date for the final accounting hearing must be included in the Proposed Order.
f. The Order needs to instruct the Plaintiff to submit a copy of the Order to the LWDA within ten calendar days after entry of the Order.
The status conference and the hearing on this Motion for Approval of PAGA Settlement is continued to December 3, 2021, at 1:30 p.m. in Department CX101. It is not necessary for the parties to resubmit briefing which has already been filed with the Court. Supplemental declarations or other supplemental materials addressing the identified issues shall be filed no later than 9 court days prior to the continued hearing date. If a revised settlement agreement is submitted, a redlined version showing all changes, deletions, and additions must also be submitted electronically to the court.
The court does not require any physical or remote appearance at the hearing scheduled for 9/17/2021.
The court requests that moving party email the clerk, Mr. Brown, at email@example.com before 12:00 PM on the day of the hearing if they wish to submit on the tentative.
Phillips vs. Howard
1. Motion to lift stay of Cross-Complaints
3. Status Conference
The court grants the Motion to Lift the Stay of the Cross-complaints filed by the Cloverleaf Parties. The cross-complaints were filed on July 12, 2018 (ROA 698 [the Manchester cross-complaint] and ROA 699 [the MFG cross-complaint]). The court does so for the reasons set forth below.
First, the reasons for the stay no longer exist. The stay was imposed by the court because under CCP section 585(e), the Cloverleaf Parties were not entitled to a separate judgment on the defaults they took against ICG because the court found that the claims in the cross-complaints were inextricably linked with plaintiffs’ complaint, and therefore could not proceed to a separate judgment. The defaults entered against ICG have now been set aside by the court and ICG has appeared in this action through counsel. As such CCP section 585(e) no longer applies. The court notes that in plaintiffs’ Motion to Set Aside the Defaults entered against ICG on the cross-complaints prior to ICG appearing in the action, plaintiffs sought leave to file proposed Answers which were attached as exhibits to the Motion to Set Aside Defaults.
As a housekeeping matter, these Answers have never been separately filed but were deemed, alternatively are hereby deemed, to be the Answers to the cross-complaints in question. See this court’s June 11, 2021 ruling on the Motion to Set Aside Defaults in case number 2016-00861757 (previously entitled Johns vs. Howard and now entitled Phillips vs. Howard).
Second, the factors favoring bifurcation pursuant to CCP section 1048 are not present here. The legal basis for bifurcation for a separate trial arises under CCP section 1048 which provides that:
‘The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action issues, preserving the right of trial by jury required by the Constitution or statute of the state or of the United States.”
The court, in its discretion, finds that none of the factors supporting bifurcation are present here. A bifurcation of the cross-complaints would not result in expedition and economy, convenience of witnesses, avoidance of prejudice or promotion of the ends of justice. Here, the cross-complaints introduce matters that are relevant to disputed facts in ICG’s 7th Amended Complaint.
Plaintiffs’ Opposition primarily argues that there is no merit to either of the cross-complaints and that it’s claims should be tried first because the unmeritorious cross-complaints will become moot when plaintiffs succeed on their Complaint. This merits-based contention does not support bifurcation. Plaintiffs may challenge the pleadings by way of motions for summary judgment/adjudication or motions for judgment on the pleadings. Demurrers are not available because Answers have been filed. But the assertion that a cause of action lacks merit does not support bifurcation. Whether the cross-complaints lack merit may be determined by way of motions or at a trial on the merits.
The motion to Lift Stay on Cross Complaints is granted and the stay is hereby lifted.
Johns vs. Howard
Continued to 09/20/2021 at 1:30 p.m.
Johns vs. Stradling Yocca Carlson & Rauth P.C.
Continued to 09/20/2021 at 1:30 p.m.
Parties submitting class action settlements for preliminary approval should be certain that the following procedures are followed and that all of the following issues are addressed. Failure to do so may result in unnecessary delay of approval. It is also strongly suggested that these guidelines be considered during settlement negotiations and the drafting of settlement agreements.
1) NOTICED MOTION - Pursuant to California Rule of Court ("CRC") 3.769(c), preliminary approval of a class action settlement must be obtained by way of regularly noticed motion.
2) CLAIMS MADE VS. CHECKS-MAILED SETTLEMENT/CY PRES – The court typically finds that settlement distribution procedures that do not require the submission of claim forms, but rather provide for settlement checks to be automatically mailed to qualified recipients, result in greater benefit to the members of most settlement classes. If a claims-made procedure is proposed, the settling parties must be prepared to explain why that form is superior to a checks-mailed approach. If the settlement results in “unpaid residue or unclaimed or abandoned class member funds,” the agreement must comply with Code of Civil Procedure § 384.
3) REASONABLENESS OF SETTLEMENT AMOUNT – Admissible evidence, typically in the form of declaration(s) of plaintiffs’ counsel, must be presented to address the potential value of each claim that is being settled, as well the value of other forms of relief, such as interest, penalties and injunctive relief. Counsel must break out the potential recovery by claims, injuries, and recoverable costs and attorneys' fees so the court can discern the potential cash value of the claims and how much the case was discounted for settlement purposes. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116.) Where the operative complaint seeks injunctive relief, the value of prospective injunctive relief, if any, should be included in the Kullar analysis. The court generally requires that this analysis be fully developed and supported at the preliminary approval stage. The analysis must state the number of anticipated class members (broken down by subclasses if applicable), and the final approval hearing papers must similarly state the number of class members (again by subclass, if applicable).
This analysis must also include a description of the expected low, average, and high payments to class members, and the expected amount to be received by the Plaintiff(s) (excluding any enhancement award).
4) ALLOCATION – In employment cases, if the settlement payments are divided between taxable and non-taxable amounts, a rationale should be provided consistent with counsel's Kullar analysis. The agreement and notice should clearly indicate whether there will be withholdings from the distribution checks, and who is paying the employer’s share of any payroll tax. The court is unlikely to approve imposing the employer’s share of payroll taxes on class members. If the operative complaint and the settlement include penalties under the Labor Code Private Attorneys General Act of 2004 ("PAGA"), proof of submission to the LWDA must be provided. (Labor Code §2999(l)(1).)
5) RELEASE - The release should be fairly tailored to the claims that were or could be asserted in the lawsuit based upon the facts alleged in the complaint. Releases that are overbroad will not be approved. Furthermore, while the court has no problem, conceptually, with the waiver by the named Plaintiff of the protection of Civil Code §1542, a 1542 waiver by the absent class members is generally inappropriate in the class settlement context. A comprehensive description of released claims as those arising out of the allegations of the operative complaint generally provides an adequate level of protection against future claims. A 1542 waiver, which by its own terms is not necessarily circumscribed by any definition of "Released Claims," goes too far. Also, although the court will not necessarily withhold approval on this basis, it generally considers a plain language summary of the release to be better than a verbatim rendition in the proposed class notice.
6) SETTLEMENT ADMINISTRATION - The proposed Settlement Administrator must be identified, including basic information regarding its level of experience. Where calculation of an individual’s award is subject to possible dispute, a dispute resolution process should be specified. The court will not approve the amount of the costs award to the Settlement Administrator until the final approval hearing, at which time admissible evidence to support the request must be provided. The court also generally prefers to see a settlement term that funds allocated but not paid to the Settlement Administrator will be distributed to the class pro rata.
The settlement should typically provide that the settlement administrator will conduct a skip trace not only on returned mail, but also on returned checks.
7) NOTICE PROCEDURE - The procedure of notice by first-class mail followed by re-sending any returned mail after a skip trace is usually acceptable. A 60-day notice period is usually adequate.
8) NOTICE CONTENT - The court understands that there can be a trade-off between precise and comprehensive disclosures and easily understandable disclosures and is willing to err on the side of making the disclosures understandable. By way of illustration, parties should either follow, or at least become familiar with the formatting and content of The Federal Judicial Center's "Illustrative" Forms of Class Action Notices at http://www.fjc.gov/, which conveys important information to class members in a manner that complies with the standards in the S.E.C.'s plain English rules. (17 C.F.R. § 230.421.)
Notices should always provide: (1) contact information for class counsel to answer questions; (2) an URL to a web site, maintained by the claims administrator or plaintiffs' counsel, that has links to the notice and the most important documents in the case; and (3) for persons who wish to review the court's docket in the case, the URL for the court: https://ocjustice.occourts.org/civilwebShoppingNS/Login.do
The motion should address whether translation(s) of the Notice and all attachments thereto should be provided to class members.
9) CLAIM FORM - If a claim form is used, it should not repeat voluminous information from the notice, such as the entire release. It should only contain that which is necessary to elicit the information necessary to administer the settlement.
10) EXCLUSION AND OBJECTION- The court prefers that the Notice be accompanied by a Form to be completed by the class member seeking to be excluded, and a separate Form to be completed by the class member wishing to object.
The notice need only instruct class members who wish to exclude themselves to send a letter to the settlement administrator setting forth their name and a statement that they request exclusion from the class and do not wish to participate in the settlement. It should not include or solicit extraneous information not needed to effect an exclusion. The same applies to the contents of the Form, if used.
Objections should also be sent to the settlement administrator (not filed with the court nor served on counsel). Thereafter counsel should file a single packet of all objections with the court. The court will not approve blanket statements that objections will be waived or not considered if not timely or otherwise compliant—rather, any such statements must be preceded by a statement that “Absent good cause found by the court….”
11) INCENTIVE AWARDS - The court will not decide the amount of any incentive award until final approval hearing, at which time evidence regarding the nature of the plaintiff's participation in the action, including specifics of actions taken, time committed and risks faced, if any, must be presented. (Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 804-807.)
12) ATTORNEY FEES - The court will not approve the amount of attorneys' fees until final approval hearing, at which time sufficient evidence must be presented for a lodestar analysis. Parties are reminded that the court will not award attorneys’ fees without reviewing information about counsel's hourly rate and the time spent on the case, even if the parties have agreed to the fees. (Laffitte v. Robert Half International, Inc. (2016) 1 Cal. 5th 480, 573-575.) Further information regarding fee approval is set forth in the court's Procedural Guidelines for Final Approval of Class Action Settlements.
At the final approval hearing, Plaintiff’s counsel must disclose whether they have any fee-splitting arrangement with any other counsel or confirm none exists. (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; California Rules of Court, rule 3.769(b).)
13) CONCURRENT PENDING CASES – The declaration(s) filed in support of the motion must inform the court as to whether the parties, after making reasonable inquiry, are aware of any class, representative or other collective action in any other court that asserts claims similar to those asserted in the action being settled. If any such actions are known to exist, the declaration shall also state the name and case number of any such case and the procedural status of that case. (Trotsky vs. Los Angeles Fed. Sav. & Loan Assn. (1975) 48 Cal. App. 3d 134, 148; Effect of failure to inform court of another pending case on same or similar issues.)
14) PROPOSED ORDER GRANTING PRELIMINARY APPROVAL – All proposed orders should include the requisite "recital," "finding," and "order" language, including adequate information to provide clear instruction to the settlement administrator. The proposed order should also attach the proposed notice and any associated forms as exhibits. The proposed order must contain proposed dates for all future events contemplated therein.
Procedural Guideline for Final Approval of Class Action Settlements
Parties submitting class action settlements for final approval should be certain that the following procedures are followed, and that all of the following issues are addressed. Failure to do so may result in unnecessary delay of final approval.
C) Since the date and place of final approval hearings are set by the preliminary approval order, notice of which is typically included in the notice to class members of the settlement itself (California Rules of Court [“CRC”] 3.769© & (f)), the final approval hearing is outside the scope of Code of Civil Procedure §1005. Nevertheless, settling parties should caption their papers submitted in support of final approval as a “Motion for Final Approval,” and set the matter for hearing on the reserved date.
2) With rare exceptions, the court will expect all issues related to final approval to be heard at the same time, including, without limitation, (a) final approval of the settlement itself, (b) approval of any attorney’s fees request, (c) approval of incentive awards to class representatives, and (d) approval of expense reimbursements and costs of administration. If the settling parties elect to file separate motions for any of these categories, the motions must be set on the same day.
3) All requests for approval of attorney’s fees awards, whether included in a Motion for Final Approval or made by way of a separate motion, must include detailed lodestar information, even if the requested amount is based on a percentage of the settlement fund. The court generally finds the declarations of class counsel as to hours spent on various categories of activities related to the action, together with hourly billing-rate information, to be sufficient, provided it is adequately detailed. It is generally not necessary to submit copies of billing records themselves with the moving papers, but counsel should be prepared to submit such records at the court’s request.
Plaintiff’s counsel must disclose whether they have any fee-splitting arrangement with any other counsel or confirm none exists. (Barnes, Crosby, Fitzgerald & Zeman, LLP v. Ringler (2012) 212 Cal.App.4th 172, 184; California Rules of Court, rule 3.769(b).)
4) Requests for approval of enhancement/incentive payments to class representatives must include evidentiary support consistent with the parameters outlined in Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 804-807.
5) For all settlements that include a distribution to settlement class members, a final compliance hearing must be set, which requires the submission and approval of a final compliance status report after completion of the distribution process. The compliance hearing will be set when final approval is granted, so the moving papers should include a suggested range of dates for this purpose. The compliance status report must be filed at least 5 court days prior to the compliance hearing.
6) In light of the requirements of CRC 3.769(h), all final approvals must result in the entry of judgment, and the words “dismissal” and “dismissed” should be avoided not only in proposed orders and judgments, but also in settlement agreements.
7) To ensure appropriate handling by the court clerk, the court prefers the use of a combined “order and judgment,” clearly captioned as such (e.g. “Order of Final Approval and Judgment” or “Order and Judgment of Final Approval”). The body of the proposed order and judgment must also incorporate the appropriate “judgment is hereby entered” language, and otherwise fully comply with California Rule of Court (“CRC”) 3.769(h), including express reference to that rule as the authority for the court’s continuing jurisdiction. The proposed order and judgment should also include the compliance hearing provision (with suggested date and time) discussed above.
8) If the actions that are being settled are included in a Judicial Council Coordinated Proceedings (“JCCP”), termination of each included action by entry of judgment is subject to CRC 3.545(b) & (c), and proposed orders and judgments must so reflect. Language must also be included to the effect that compliance with CRC 3.545(b)(1 & 2) shall be undertaken by class counsel, and that a declaration shall be filed confirming such compliance.
9) All proposed orders and judgments should include all the requisite “recital,” “finding,” “order” and “judgment” language in a manner that clarifies the distinctions between these elements, and care must be taken that all terms that require definition are either defined in the proposed order and judgment itself or that definitions found elsewhere in the record are clearly incorporated by reference. No proposed order and judgment should be submitted until after review by counsel for each settling party.
Guidelines for PAGA Dismissals
(Private Attorney General Act of 2004, Labor Code sections 2698 et seq.)
In light of the similarity of a representative PAGA claim to a class action, and the requirements of Labor Code § 2699 (l) (2) which requires court approval of PAGA settlements, when a plaintiff wishes to dismiss a PAGA claim, the court requires plaintiff or plaintiff’s attorney to file a declaration containing information similar to that required under CRC, rule 3.770 (pertaining to class actions). In that declaration the declarant shall explain to the court why plaintiff wishes to dismiss the PAGA action, whether consideration was given for the dismissal, and if so, the nature and amount of the consideration given. The declaration shall be accompanied by a Proposed Order to Dismiss the PAGA claim.
Guidelines for PAGA Settlements
Pursuant to Labor Code section 2699(1)(2): “The superior court shall review and approve any settlement of any civil action filed pursuant to this part.”
While the court will review every such motion for approval on its own merits, the court requires that at a minimum the settlement and/or any order or judgment requested from the court in connection with it must contain at least the following.
A comprehensive definition of the group of allegedly aggrieved employees represented by
plaintiff in the action.
1. A definition of the PAGA claims encompassed by the settlement, premised on the allegations of the operative complaint.
2. The total consideration being provided by defendant for the settlement (“gross settlement amount”), and a description of each allocation of the consideration, such that all the total consideration is accounted for. This description must include:
a. A description of all consideration being received by plaintiff, including for plaintiff's individual claims, PAGA claims, attorney’s fees and costs.
b. A description of all consideration being received by aggrieved employees including, if applicable, civil penalties, unpaid wages, and attorneys’ fees and costs.
c. A statement of the amount of consideration that will be subject to the 75%/25% allocation required by section 2699(i).
d. A statement of the net amount, after deduction of any identified fees and/or costs, payable to purported aggrieved employees, along with a precise explanation as to how the amount payable to each purported aggrieved employee is to be calculated.
3. To the extent not otherwise explained, the allocation of attorneys’ fees between the part of the case dealing with individual claims and the part of the case dealing with PAGA claims An explanation as to why the attorneys’ fees and costs sought are reasonable within the meaning of Labor Code section 2699 (g) (1).
a. Any amount allocated to claims administration.
b. A description of any other amount(s) being deducted from the gross settlement amount.
c. A description of the tax treatment for any of the payments to plaintiff and/or aggrieved employees.
4. A provision setting forth the disposition of unclaimed funds, i.e., checks uncashed within a stated period of time after being sent to aggrieved employees.
5. A provision that the proposed settlement be submitted to the Labor and Workforce Development Agency at the same time that it is submitted to the court. (Labor Code section 2699(l)(2))
6. A provision that the Court will retain jurisdiction to enforce the settlement pursuant to CCP section 664.6.
7. A notice to aggrieved employees that will accompany the payment to them, a copy of such notice to be provided to the court for approval along with the motion seeking approval of the settlement.
8. Releases that do not include Civil Code section 1542 releases for aggrieved employees other than plaintiff.
9. Releases that release no more, for aggrieved employees other than plaintiff, than the civil penalties available under PAGA by reason of the facts alleged in the operative complaint.
10. Inform the court by declaration whether there is any class or other representative action in any other court that asserts claims similar to those alleged in the action being settled. If any such actions are known to exist, state the name and case number of any such case and the procedural status of that case.