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
October 28, 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
HEARING DATES/RESERVATIONS: Except for Summary Judgment and Adjudication Motions, no reservations are required for Law and Motion matters. Call the Clerk to reserve a date for a Summary Judgment or Adjudication Motion. Regarding all other motions, the parties are to include a hearing date (Friday at 1:30PM) in their motion papers. The date initially assigned might later be continued by the Court if the assigned date becomes unavailable for reasons related to, among other things, calendar congestion.
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 her 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.
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).
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.
OCTOBER 28, 2022
Martinez vs. Griswold Controls, LLC
The court will sign Plaintiff’s Amended Proposed Judgment and Order of Final Approval.
Accordingly, the hearing is continued to December 9, 2022 in Dept. 103 at 1:30PM so that the administrator can confirm that the funds have been distributed to Orange County Rescue Mission.
Garcia vs. Emerald Landscape Services, Inc.
As all distribution efforts are fully concluded, the final report is approved, and the Court’s file closed.
No appearance is required on October 28, 2022.
Plaintiff to give notice.
De La Cruz vs. Montoya
1. Motion to Be Relieved as Counsel of Record
2. Motion to Be Relieved as Counsel of Record
3. Motion to Be Relieved as Counsel of Record
4. Motion to Be Relieved as Counsel of Record
5. Status Conference (Continued to May 11, 2023.)
The Motion of Todd C. Anderson of Todd Anderson Law is granted. Mr. Anderson is relieved as counsel for the following individual defendants and cross-complainants only: (1) Morgan Alex Montoya d/b/a Superior Hauling and Construction, (2) Mark Alan Montoya, (3) Morgan Alex Montoya d/b/a Montoya Construction, and (4) Morgan Alex Montoya (“Montoya Defendants”).
The Montoya Defendants will proceed in propria persona. Mr. Anderson is directed to both serve and file notice of this ruling to the Montoya Defendants and comply with the following directions and instructions:
Notice to be given by Mr. Todd Anderson.
No appearance is necessary at the October 28, 2022 hearing today.
Ontiveros vs. Jellco Container Inc.
1. Motion for Final Approval
2. Status Conference (Vacated.)
The court GRANTS the Motion for Final Approval of Class Action Settlement.
The court will sign the Proposed Order and Judgment with some non-substantive modifications.
A Final Accounting is set for September 8, 2023 at 1:30 p.m. in Department CX103.
The court does not require any physical or remote appearance at the hearing scheduled for 10/28/2022.
Embee Inc vs. Safeco Insurance Company of America
Motion for Summary Judgment and/or Adjudication
Continued per October 25 minute order to February 10, 2023.
Chiang vs. D.R. Horton, Inc.
Motion to Certify Class
The Motion for Certification is granted.
The requirements for certification of a class have been met. The court finds that the class is readily ascertainable, is sufficiently numerous, that there is sufficient commonality of interests among the class members, that class handling is superior to individual claims and that the adequacy of Plaintiff Cesar Sabroso as class representative and his lawyers as class counsel has been sufficiently demonstrated.
The class definition proposed in Plaintiff’s Motion dated 7/21/2022 at page 2:20-26 (ROA 803) is acceptable with one arguably appropriate modification indicated in red bolded italics below. The class is:
“(1) All present owners of residential homes in the Class Area whose copper pipe systems have not been replaced with PEX or epoxy coating by prior owners of the homes, or (2) prior owners of homes in the Class Area who replaced their copper pipe systems with PEX or epoxy coating, provided that:
(a) the homes were constructed by D.R. Horton, Inc. and substantially completed within ten (10) years of the filing of the original complaint in this action,
(b) the original purchase agreements were signed by the builder on or after January 1, 2003;
(c) the original owners are not subject to an arbitration agreement;
(c) the SB 800 claims have not been released.”
Plaintiff is correct that, with this definition, all class members are likely identifiable by public property ownership records. The argument that only the original purchaser has standing is rejected for the reasons set forth in Plaintiff’s Reply (ROA 861). The fact that some putative class members may be required to arbitrate their disputes may be determined efficiently by motion or stipulation as has been done in several of the related actions. That some putative class members may be required to subject their disputes to arbitration may reduce the number of putative class members but does not defeat this motion to certify.
Defendants attempt to defeat class certification, in part, based on the very recent Gerlach decision. (Gerlach v. K. Hovnanian’s Our Seasons At Beaumont, LLC 2022 WL 3443648). This effort is unavailing.
As discussed in prior rulings in other related cases, Gerlach involved RORA claims based on §896(a)(4), (g)(3)(A) and (g)(11). In contrast, the RORA claim at issue here is based on §896(a)(15). Plaintiffs in the Gerlach case complained that their roof was defective. The appellate court found that §896(g)(3)(A) did not apply because it is only for products completely manufactured offsite. The tile roof at issue in the case did not qualify.
As to the claims under §§896(a)(4) and (g)(11), the appellate court held that for a violation of those standards to occur and be actionable, “materials must fall from the roof or there must be some sort of prohibited water leak or intrusion. Otherwise, a plaintiff could recover on the basis of the mere possibility that such violations might occur because of some way in which the roof was allegedly negligently installed. Such a claim would subvert the purpose of the Act to reform construction defect litigation and to eliminate common law negligence claims for construction defects.” (Gerlach at 5).
Elsewhere in its decision, the appellate court noted that the trial court had “expressed concern that without evidence of actual leakage or material falling from the roofs, [the expert’s] testimony would venture into the prohibited topic of the roofs’ useful lives under section 896(g)(3)(A).” (Gerlach at 4). Both §896(g)(3)(A) and §896(a)(15) (which is at issue here) are concerned with the useful life of the item at issue. It would not make sense to require a showing that the pipes had already leaked where, as here, it is a violation of the statute if the useful life is impeded.
The court also rejects Defendant’s argument that only the original purchaser has standing for the reasons set forth in Plaintiff’s Reply (ROA 861).
Class certification is a procedural device. Usually, these motions do not involve a determination of the merits unless the merits of the case are “… enmeshed with class requirements, such as whether substantially similar questions are common to the class and predominate over individual questions or whether the claims or defenses of the representative plaintiffs are typical of class claims or defenses.” [Linder v. Thrift Oil Co. (2000) 23 Cal.4th 429, 443: Brinker Restaurant Corporation v. Superior Court (2012) 53 Cal.4th 1004, 1023; Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th.319, 326-327, and Jaimez v. DAIOHS USA, Inc. (2010) 181 Cal.App.4th 1286, 1298.]
Here, the merits of the case are not “enmeshed with class requirements.”
Class treatment is favored where it will benefit the parties and judicial efficiency, and where the claims prove amenable to class treatment. Such is the case here.
Class certification may be appropriate, even if class members at some point might be required to make an individual showing as to eligibility for recovery pursuant to Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1207, and Sav-On, supra, page 333.
For the reasons discussed above and set forth below, Plaintiff has met his burden to demonstrate the presence of the elements necessary to grant certification of the proposed class as defined in the moving papers, pursuant to C.C.P. §382, and California Rule of Court 3.764. The additional reasons are:
(a) The class is ascertainable from public records reflecting, for example, home ownership, from Defendant's records, from county records concerning re-piping permits, sworn responses to a written survey, declarations, stipulations and where necessary, limited oral testimony;
(b) The class is numerous. It is estimated to include approximately 251 homes in 2 developments. While the court notes that Defendant contends the number is closer to 249, that distinction does not change the analysis. All of the homes at issue are located in Ladera Ranch, California and are alleged to have been constructed by the builder Defendant on or after January 1, 2003.
(c) The class shares common issues of fact and law which predominate over individual issues. The predominant common issue is the question whether the copper pipe used, in conjunction with the water supplied by the SMWD, lessened the reasonably-expected useful life of that copper pipe likely ensuring its failure sooner than the approximately 40 years it might otherwise be expected to last. These factors do not need to be the sole cause of a reduced useful life. [See CC § 896 (a)(15) and Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal App 4th 908, 912, 923: Declaration of Plaintiffs’ expert, Dr. Dempsey.]
Also, applying Dr. Dempsey’s theory, which the court must do at this stage of the proceedings, the court finds that plaintiffs’ theory of common proof has a “foundation in evidence.” Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 842.
(d) Damage variation among class members is not enough to defeat certification. Individualized proof of damages does not preclude certification. [Brinker, supra, page 1022, Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916, and Vazquez v. Superior Court (1971) 4 Cal.3d 800, 820.]
(e) Plaintiff Cesar Sabroso is typical – as his copper pipe is allegedly subject to the shorter life that might be expected under the theory espoused by Plaintiffs’ expert. His claims fit within the class definition, are based on the same event, practice, or course of conduct that gives rise to the claims of other class members and are based on the same legal theory. Also, see Classen v. Weller (1983) 145 Cal.App.3d 27, 46 (circumstances need not be identical).
(f) Sabroso is adequate as class representative since there is no disabling conflict of interest that might affect his service – and he has already demonstrated a serious commitment to prosecuting these claims on behalf of the class.
(g) Plaintiff’s counsel (all three plaintiff firms) are adequate since there is no disabling conflict of interest that might affect their service – and they have already demonstrated a serious commitment to prosecuting these claims on behalf of the class—and they are experienced class action attorneys.
(h) Class treatment is manageable, and will be superior to numerous different individual homeowner cases addressing this common alleged wrongdoing, where common proof can apply (based on competing expert opinions offered by both sides), and the risk of inconsistent rulings is avoided such that class treatment will be advantageous to the judicial process and to the litigants pursuant to Brinker, supra, page 1021. Defense arguments that other causes are responsible for leaks, or for any shortened life of the subject copper pipe does not avail Defendant because, for purposes of certification, they do not defeat Plaintiffs’ theory that the copper pipe used in conjunction with the water supplied by the SMWD also lessened the reasonably-expected useful life of that copper pipe. (Dailey v. Sears, Roebuck & Co. (2013) 214 Cal.App.4th 974, 991: “[i]f the parties’ evidence is conflicting on the issue of whether common or individual questions predominate . . . the trial court is permitted to credit one party’s evidence over the other’s in determining whether the requirements for class certification have been met.”).
The court overrules Defendant’s objections to the Dempsey Declaration. The court overrules Defendant’s objections #6, 7, 17, and 18 to the Kellner Declaration (ROA 791). The court overrules Plaintiff’s objections to the declarations of Mittelman and Van Der Schijff. The court declines to rule on any other objections as they are not relevant to the determination of the motion.
The court grants Plaintiff’s request for judicial notice of the documents attached as Exhibits P and Q.
Plaintiff’s counsel is to prepare and submit a proposed Order within seven (7) days of the date of this ruling.
The court will hold that proposed Order for 15 days to permit any objection to be filed by Defendants.
The court does not at this stage require Plaintiff’s counsel to submit a trial plan. Similar to the court’s approach to the Trial Plan in related case Smith vs. Pulte, a trial plan shall, in the discretion of the court, be submitted after the close of discovery, but prior to trial. (See Court’s Comments on the record on October 21, 2022 re trial plan in Smith vs. Pulte.)
The matter is currently set for Trial per stipulation on August 21, 2023 at 9:00AM. The court sets a Status Conference for December 9, 2022 at 1:30 PM. The department in which the status conference and the trial will take place is yet to be determined.
Regard the post-certification notice to the class, counsel for both sides are to meet and confer and then submit a jointly-prepared Notice to the Class, if possible. If not possible, then separate briefs, no more than 3 pages are permitted on that topic within 15 days of this ruling. Counsel are to meet and confer as to a date for such a hearing if they cannot agree on its contents.
Plaintiff to give notice.
Brasch vs. K. Hovnanian Enterprises, Inc.
The court has received the parties’ respective submissions regarding the treatment of the potential claimants referenced in ROA 1132.
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 or reasonably related to 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) the URL for the court for persons who wish to review the court's docket in the case.
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 adequate information to provide clear instructions 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 settlement agreement should not be attached to the order. Instead, it should be identified by reference to the Register of Action (ROA) number of the declaration to which it is attached. See below.
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.
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 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/accounting hearing must be set, which requires the submission and approval of a final status report after completion of the distribution process. The final accounting 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 10 calendar 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.
If the dismissal arises out of settlement with the individual plaintiff, a copy of that settlement agreement must be provided to the court. If the parties have agreed to maintain the confidentiality of the settlement agreement, it must be provided to the court for in camera review. It should be submitted to the clerk by emailing it to CX101@occourts.org.
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.