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.

 

 

TENTATIVE RULINGS

 

LAW & MOTION CALENDAR

 

 

August 16, 2022

 

 

Appearances in non-evidentiary matters will now be conducted via Zoom.

 

On the date of the hearing, log into ZOOM through the following link and follow the prompts:

 

The Superior Court of California - County of Orange (occourts.org)

 

 

Parties preferring to be heard in person, instead of remotely, should provide notice of their intent to appear in person to the court and to all other parties at least five days before the hearing.

 

If any party wants a record of the proceedings, that party must arrange to have a court reporter do so remotely via Zoom. 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 attachment to CX101@occourts.org.  

 

The courts are now open to the public who may attend any hearing in person.

 

 

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. 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 CX101@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.

 

ORDERS

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).

 

 

BOOKMARKS

Bookmarking of exhibits to motions and supporting declarations - The court requires strict compliance with CRC, rule 3.1110 (f) (4) which requires electronic exhibits to include electronic bookmarks with the links to the first page of each exhibit, and with bookmarked titles that identify the exhibit number or letter and briefly describe the exhibit. CRC, rule 3.1110 (f) (4).

 

 

The court may continue a motion that does not comply with rule 3.1110 (f) (4) and require the parties to comply with that rule before resetting the hearing.

 

 

 

 

1

 

 

 

 

Del Rivero vs. Centex Homes of California, LLC

 

2013-00649338

 

 

 

 

Status Conference re: Ex-Parte

 

Dispute Concerning “Ex Parte” Communications with Members of Certified Class.

 

Defendants challenge class counsel’s right to have confidential, or as defendants put it, “ex parte”, communications with absent class members. The court disagrees.

 

The class in this matter was certified on June 17, 2017.  Certification of the class alters the relationship between class counsel and absent class members for certain purposes, including the purpose relevant to this dispute – confidential communications with absent class members.

 

Once a class is certified, class counsel represents absent class members for purposes of the ethical rule that prohibits communications with represented parties. (See, Hernandez vs. Vitamin Shoppe (2009) Cal. App. 4th 1441, 1460; Walker vs. Apple, Inc. 4 Cal. App. 5th 1098, 1107 - 1108 and the authorities cited at 1108.)

 

Defendants’ counsel contends that class certification should not be the defining event for determining representation for purposes of confidential communications with unidentified class members. Again, the court disagrees. The identities of the class members are not relevant to the question as to whether plaintiffs’ counsel is entitled to have confidential, privileged communications with them. None of the authorities referenced above support the proposition that class counsel represents only the named class members or those who have been identified or those who have already proved they have standing.

 

The fact that the court has permitted defendants’ counsel to have communications simultaneously with plaintiffs’ counsel during the evolution of a Trial Plan does not, and indeed cannot, alter the law pertaining to representation of absent class members, the Rules of Professional Conduct, and the attorney-client privilege. 

 

The court in Walker discussed opposing parties’ argument that it would be impractical to find that class counsel represented all members of the class after certification in circumstances where the identities of absent class members are unknown. This argument was made, however, in the context of determining representation for the purpose of deciding whether class counsel had a conflict in representing the class member in question. (Walker at 11.) Because the relevant class member in Walker had been identified, however, the Walker court did not need to reach this issue even for the limited purpose of determining the existence of a conflict.

 

While there is ample acknowledgment by courts concerning the circumstances in which absent class members are not parties in situations other than those at bar, there is no authority for the proposition asserted here that absent/unidentified class members are not class members for purposes of determining who represents them and so may communicate with them confidentially.

 

Where courts have acknowledged class members are not parties for a particular purpose, they have done so because the purpose of the class action would be thwarted if their status as “parties” was recognized in that specific context. Here communications by class counsel with absent class members is necessary to the furtherance of the litigation and so supports the class action procedure.

 

 If a motion seeking to enjoin class counsel from communicating confidentially with class members is brought, the court would likely find in favor of plaintiffs.

 

Nothing in this informal outline of the Court’s position constitutes a ruling or final decision.

 

 

 

2

 

 

McDowell vs. Ford Motor Company

 

2016-00866952

 

 

Motion to Compel Compliance w/ Subpoena Duces Tecum

 

 

 

 

 

 

 

 

 

 

PROCEDURAL GUIDELINES

 

Procedural Guideline for Preliminary Approval of Class Action Settlements

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.

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.

The Proposed Order must identify the documents comprising the Settlement Agreement (both the Original Settlement Agreement and any Amendments thereto) by reference to the ROA number(s) of the declaration(s) to which they are attached. This facilitates the identification of the settlement agreement (and any amendments) approved by the court. Referencing the ROA number(s), is less cumbersome than attaching the  Settlement Agreement/Amendments as exhibit(s) to the Proposed Order.

 

 

B.

 

 

Procedural Guideline for Final Approval of Class Action Settlements

 

 

1) 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.

 

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(c) & (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.

 

 

 

C.1

 

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.

 

                        

 

C.2

 

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.