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LAW & MOTION CALENDAR
Wednesday, October 5, 2022, 3:00 p.m.
Courtroom 16 – Hon. Patrick M. Broderick
3035 Cleveland Avenue, Suite 200, Santa Rosa
PLEASE NOTE: Per order of the court, any party or representative of a party must appear remotely through Zoom for this calendar, unless you request in person appearance by 4:00 p.m. the day before the hearing.
TO JOIN “ZOOM” ONLINE,
Meeting ID: 824-7526-7360
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed above):
(669) 900-6833 US (San Jose)
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, October 4, 2022. Parties in motions for claims of exemption are exempt from this requirement.
THE COURT'S OFFICIAL COURT REPORTERS ARE "NOT AVAILABLE" WITHIN THE MEANING OF CALIFORNIA RULES OF COURT, RULE 2.956, FOR COURT REPORTING OF CIVIL CASES.
1. MCV-255769, Insurance Company of the West v All-Terrane Excavating, Inc
This matter is on calendar for the motion of Plaintiff Insurance Company of the West (“ICW”) for an order to enforce the written settlement agreement and for entry of judgment pursuant to the terms of the agreement. ICW seeks the remaining principal amount due of $5,493.29, plus interest of $183.61, plus attorney’s fees of $3,628.00 and costs of $867.84, for a total judgment of $10,172.74.
On or about September 10, 2021, ICW and Defendant All-Terrane Excavating, Inc. entered into a written Settlement Agreement to resolve the issues raised in the complaint. Pursuant to the terms of the Settlement Agreement, it was agreed that commencing on September 15, 2021, Defendant would make to ICW, five (5) equal payments of $2,831.11 per month, and one final payment of $2,831.13, for a total of $16,986.68. All payments were due and were to be received by ICW on or before the 15th of every month. (Harris Declaration, ¶ 8; Exhibit 1, ¶ 8 (b)-(d).) Within 30 days of ICW’s actual receipt of the total amount of the settlement monies, it was to file a Request for Dismissal without prejudice. (Id., ¶10; Exhibit 1, ¶8 (g).) ICW and Defendant agreed to execute the Stipulation for Entry of Judgment which was attached as Exhibit 1 to the Settlement Agreement if Defendant defaulted on the agreement. (Id., ¶ 11; Exhibit 1, ¶8(h).)
Defendant breached the Settlement Agreement by refusing and failing to execute the Stipulation for Entry of Judgment, despite the fact that it was an express requirement of the Settlement Agreement. (Harris Declaration, ¶13, Exhibit 1.) Defendant was also late on four of the six installment payments. (Id., ¶14.) Defendant paid the first payment, which was due on September 15, 2021, on October 28, 2021, and it paid $3,000 rather than the required payment of $2,831.11. (Ibid.) The other three payments were for the required installment of $2,831.11, but they were all paid approximately two months late. (Ibid.) Defendant failed to make the final two payments totaling $5,493.29, which are still due and owing. (Id., at ¶¶14-16., Exhibit 2.)
The Settlement Agreement was signed by Mike Clay on behalf of Defendant. The agreement contains an attorney fee clause providing attorney fees and costs to the party prevailing in legal proceedings enforcing the terms agreement. (Harris Decl., Exhibit 1, ¶22.) ICW is requesting attorney fees from March 25, 2021 to June 20, 2022 for a total of $3,628.00 for work performed on this case.
This case was filed on June 3, 2021. The settlement agreement was entered into about September 10, 2021. The attorney fee clause allows attorney fees if one of the settling parties must enforce the settlement agreement through litigation. While the clause does not expressly state the scope of attorney fees recoverable; i.e., whether they are limited to those incurred to enforce the agreement versus allowing all attorney fees and costs incurred during the entirety of the litigation, the most reasonable interpretation is that attorney fees were meant to be limited to those incurred on the motion to enforce the agreement. While some of ICW’s counsel’s time records have been redacted, it appears that ICW has incurred $2,145.50 in attorney fees to enforce the Settlement Agreement. No costs are listed on timesheets from September 10, 2021 onward.
The motion is GRANTED. Attorney fees are awarded in ICW’s favor in the amount of $2,145.50. ICW’s counsel shall submit a written order to the court consistent with this ruling.
2. SCV-000007, Hubert v Ely, et al
This matter is on calendar for the motion of defendant Jennifer Loch for summary judgment or, in the alternative, summary adjudication of Plaintiff’s claims for motor vehicle negligence and negligence. The motion is made on the grounds that defendant Loch did not own the vehicle involved in the accident with the Plaintiff as she had sold it more than 6 months prior to the accident. On July 28, 2022, Plaintiff dismissed defendant Loch from this case. Accordingly, the motion is dropped as MOOT.
3&4. SCV-263125, Diaz v Sutter Bay Hospitals
#1: Motion to Vacate Trial
This matter is on calendar for the motion of Defendants Sutter Bay Hospitals dba Sutter Santa Rosa Regional Hospital and Cristina Cuellar (“Defendants”) for an order vacating the trial date and all discovery, expert designation and motion cut-off dates, and to set a further case management conference. On August 31, 2022, this Court granted Defendants’ ex parte application vacating the trial and all related deadlines and it set a case management conference for September 20, 2022, at 3:00 p.m., in Department 16. Accordingly, this motion is MOOT.
#2: Motion for Terminating Sanctions
This matter is also on calendar for the motion of Defendants Sutter Bay Hospitals dba Sutter Santa Rosa Regional Hospital and Cristina Cuellar (“Defendants”) for an order for terminating sanctions and entering judgment by default against Plaintiff Dan Diaz (“Plaintiff”). The motion is GRANTED.
Plaintiff filed this action on September 10, 2018. His amended complaint as filed on May 7, 2019 and alleges causes of action for disability discrimination; retaliation; failure to engage in the interactive process; failure to provide reasonable accommodation; failure to maintain an environment free from discrimination, retaliation, and harassment; wrongful termination in violation of public policy; harassment in violation of FEHA; and, violation of Labor Code section 970. Plaintiff alleges that he was recruited to work for California Pacific Medical Center (“CPMC”) but that due to blood tests and treatment required for a pulmonary embolism, he had to miss a few hours of work each week and was in the hospital about three times for two days each. He alleges that his supervisor began expressing her dissatisfaction that Plaintiff missed time at work and that she started a campaign of harassment to force Plaintiff to quit. Finally, on May 8, 2018, Plaintiff was terminated. His supervisor stated that Plaintiff’s absences, missed times, and health were not conducive to the hospital’s environment. Plaintiff’s supervisor also spoke poorly of Plaintiff to prospective employers indicating that he had a habit of missing work. Subsequently, Plaintiff was unable to afford his lease, lost his apartment, and has had additional financial difficulties.
On September 26, 2019, Defendants filed a motion to compel Plaintiff’s deposition, verified written discovery responses, and for the completion of a medical authorization form. The motion was heard on November 6, 2019. It was continued to March 4, 2020, in light of uncertainties over Plaintiff’s whereabouts and circumstances.
On January 31, 2020, the Joseph Farzam Law Firm substituted in as Plaintiff’s counsel. Plaintiff’s counsel filed opposition to Defendant’s motion to compel which was granted, in part, and denied, in part. The motion was granted to compel Plaintiff to respond to form interrogatories and request for production of documents, and to attend his deposition. The Court noted that the delay in responding to discovery was due in part to Plaintiff’s medical condition, his move, and the change in attorney. The Court ordered Plaintiff to sit for his deposition by the end of April 2020.
On November 20, 2020, Defendants filed a motion to compel Plaintiff to comply with this Court’s order, sit for his continued deposition, and serve outstanding documents identified in his deposition. The motion was heard on March 10, 2021, at which time the Court granted the motion and ordered Plaintiff to sit for his continued deposition, which was ordered to occur no later than March 24, 2021, and to provide Defendants with the documents he agreed to produce.
The Joseph Farzam Law Firm filed a motion to withdraw as counsel. After continuing the motion twice for proper service, the motion was granted on July 20, 2022.
On August 9, 2022, Defendants’ counsel emailed and mailed a letter to Plaintiff at two addresses provided by former counsel to attempt to schedule Plaintiff’s deposition and continue discovery. (Galloway Decl., ¶¶2, 3, Exhibits A, B.) Plaintiff did not respond. (Id., ¶2.) This motion was filed on August 19, 2022. Plaintiff has not provided opposition.
“California discovery law authorizes a range of penalties for conduct amounting to ‘misuse of the discovery process’, including terminating sanctions.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 991 quoting Code Civ. Proc. § 2023.030.) Failure to obey a court’s order is all that needs to be shown to establish a misuse of the discovery process. (See Puritan Ins. Co. v. Superior Ct. (1985) 171 Cal.App.3d 877, 883). “The penalty should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery. Where a motion to compel has previously been granted, the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.” (Puritan Ins. Co. v. Superior Court, supra, at 884.) The sanction of dismissal, where properly employed, is justified on the theory the party's refusal to reveal material evidence tacitly admits his claim or defense is without merit. (Ibid.)
Here, over the course of three years, Plaintiff has failed to comply with discovery requirements including a court order for Plaintiff’s continued deposition and for production of documents. Plaintiff has had two different attorneys file motions to withdraw as counsel. Plaintiff is not responding to Defendants’ counsel’s correspondence. It appears in all respects that Plaintiff no longer intends to participate in his case or provide Defendants with discovery necessary to defend against it. Accordingly, the ultimate sanction is warranted under the circumstances of this case. Terminating sanctions may take the form of “[a]n order rendering a judgment by default against [the offending] party.” (Code. Civ. Proc., § 2023.030(d)(4)).
The motion is GRANTED. The Court will sign the proposed order entering a default judgment against the Plaintiff and dismissing this action. While Defendants request the action be dismissed with prejudice, they have not provided authority that a dismissal is not adequate or that the action should be dismissed with prejudice.
5&6. SCV-267800, County of Sonoma v Meyer
1. Motion for Fees and Costs
This matter is on calendar for the motion of Plaintiff County of Sonoma (“County”) for an order pursuant to Sonoma County Code section 1-7 granting the County its attorney fees and costs in the amount of $32,102.80. The motion is DENIED.
On March 25, 2022, this Court entered an order against Defendant Keni Mae Meyer, owner of real property located at 639 Duer Road in Sebastopol, to abate various building, grading, sewage, and zoning violations; and awarding the County a money judgment for civil penalties in the amount of $377,660.00.
Sonoma County Code section 1-7 (f)(2),(3) allows for recovery of costs and attorney fees to the prevailing party in a public nuisance abatement action. Additionally, Sonoma County Code section 1-7 defines "costs" or "abatement costs" as “all costs incurred by the county in pursuing abatement, associated remedies, and civil penalties, including administrative overhead, salaries, attorneys' fees, and expenses incurred by any county department or agency.” Government Code section 25845(c) allows the County to establish an ordinance providing for the recovery of attorneys' fees in any action, administrative proceeding, or special proceeding to abate a nuisance. (Gov. Code, § 25845(c).)
In opposition, Defendant argues that pursuant to Rules of Court, Rule 3.1700(a)(1), the memorandum of costs is untimely. Rule 3.1700(a)(1) provides: “A prevailing party who claims costs must serve and file a memorandum of costs within 15 days after the date of service of the notice of entry of judgment or dismissal by the clerk under Code of Civil Procedure section 664.5 or the date of service of written notice of entry of judgment or dismissal, or within 180 days after entry of judgment, whichever is first. The memorandum of costs must be verified by a statement of the party, attorney, or agent that to the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” Although the deadlines for filing a memorandum of costs are not jurisdictional, they are mandatory. (Hydratec, Inc. v. Sun Valley 260 Orchard & Vineyard Co. (1990) 223 Cal.App.3d 924, 929.)
Judgment was entered in this case on March 25, 2022. The County emailed notice of entry of judgment to Defendant’s counsel, Joel Fleck, on April 5, 2022. On June 14, 2022 the County personally served Defendant. (June 17, 2022 proof of service.) Attorney Fleck substituted out of the case on July 22, 2022.
Regardless of whether the timeline is counted from service on Defendant’s attorney of record at the time, or personally on the Defendant, the County’s memorandum of costs was untimely. The County’s notice to Defendant’s counsel triggered the 15-day deadline for a memorandum of costs under California Rules of Court, rule 3.1700(a)(1) (April 20; or April 22 with the two-day extension for email service) and the 60-day deadline for a motion for statutory attorney's fees under rule 3.1702(b)(1) (June 4). This motion was also untimely filed on July 25, 2022. Even if the Court were to consider service from the time the County personally served the Defendant, the deadline for the memorandum of costs would have been June 29, 2022 The County did not file and serve its Memorandum of Costs until July 5, 2022. Accordingly, the memorandum of costs is untimely. Accordingly, the motion is DENIED.
Defendant’s counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
2. Motion to Strike
This matter is also on calendar for the motion of Defendant Keni Mae Meyer (“Defendant”) for an order striking the memorandum of costs filed by plaintiff County of Sonoma (“County”) or, in the alternative, taxing the costs sought. The motion is brought on the grounds that the County’s memorandum of costs was filed untimely or, in the alternative, that the County failed to support its request for attorney fees and costs with appropriate documentation.
As discussed above in the County’s motion for attorney fees and costs, its memorandum of costs was untimely filed and served. Accordingly, Defendant’s motion is GRANTED.
Defendant’s counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
7. SCV-268167, Cousteaux French Bakery, Inc v California Department of Alcoholic Beverage Control
This matter is on calendar for the motion of Plaintiff Costeaux French Bakery, Inc. dba Costeaux French Bakery (“Plaintiff”) for an order awarding it attorney fees, expenses, and an incentive award.
This motion is brought pursuant to Code of Civil Procedure section 1021.5 which provides: “Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any. With respect to actions involving public entities, this section applies to allowances against, but not in favor of, public entities, and no claim shall be required to be filed therefor, unless one or more successful parties and one or more opposing parties are public entities, in which case no claim shall be required to be filed therefor under Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code. [¶] Attorneys' fees awarded to a public entity pursuant to this section shall not be increased or decreased by a multiplier based upon extrinsic circumstances, as discussed in Serrano v. Priest, 20 Cal.3d 25, 49.”
The Legislature adopted Code of Civil Procedure section 1021.5, a codification of the private attorney general doctrine, as an exception to the general rule that litigants are to bear their own attorney fees. (Department of Water Resources Environmental Impact Cases (2022) 79 Cal.App.5th 556, 570.) The fundamental purpose of the doctrine is to encourage suits enforcing important public policies by rewarding attorneys who successfully prosecute such cases and prevent worthy claimants from being silenced or stifled by a lack of legal resources. (Ibid.)
To qualify for fees under the statute, a plaintiff must show that (1) it is a successful party; (2) the action resulted in the enforcement of an important right affecting the public interest; (3) a significant benefit was conferred on the general public or a large class of persons; and (4) the necessity of private enforcement and the attendant financial burden make an award of fees appropriate. (Ibid.)
A. Request for Judicial Notice and Objections
In opposition to this motion, the County requests judicial notice of various documents. However, the County failed to attach the documents. Therefore, the request is denied.
The County has filed objections to the declaration of Brian Kabateck, and Plaintiff has filed objections in response to the declaration of Michael Miller. The Court declines to rule on these objections as such ruling will have no bearing on the outcome of the motion.
B. Whether Plaintiff was a Successful Party
Our Supreme Court has taken a “broad, pragmatic” view of what constitutes a successful party for purposes of Code of Civil Procedure section 1021.5. The trial court “ ‘ “must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney fee award” under [Code of Civil Procedure] section 1021.5.’ ” (Ibid. citing case.) It is not necessary for a plaintiff to obtain a judgment in its favor to qualify as a successful party. Under the “catalyst theory” plaintiffs may be considered successful if their lawsuit caused the defendant to voluntarily provide the relief sought. (Ibid.) Courts look to the practical impact of the litigation, not the manner of its resolution. (Ibid.) Thus, a plaintiff may be a “successful party” whenever it obtains the relief sought in its lawsuit, regardless of whether that relief is obtained through a judgment, settlement, or voluntary change in the defendant's conduct. (Ibid.) However, the moving party must establish that (1) its “lawsuit was a catalyst motivating the defendants to provide the primary relief sought;” (2) “the lawsuit had merit and achieved its catalytic effect by threat of victory, not by dint of nuisance and threat of expense”; and (3) it “reasonably attempted to settle the litigation prior to filing the lawsuit.” (Id. at 571-572.)
i. Whether lawsuit was the catalyst
To satisfy this prong, the plaintiff must show that the litigation was a substantial factor contributing to the relief obtained. (Department of Water Resources Environmental Impact Cases, supra, 79 Cal.App.5th at 572.) In catalyst cases, to do this, the plaintiff must show its lawsuit was a catalyst motivating the defendant to provide the primary relief sought in the litigation. (Ibid.) Thus, when a plaintiff seeks fees under a catalyst theory, courts generally must conduct the following inquiry: (1) identify the plaintiff's primary litigation objectives, (2) compare the results obtained to determine whether the plaintiff in fact achieved those objectives, and, if so, (3) decide whether the lawsuit was a material factor or contributed in a significant way to those results. (Ibid.)
Because defendants usually are reluctant to concede that litigation induced them to provide the relief sought, “[c]lues to the provocative effects of the plaintiffs’ legal efforts are often best gleaned from the chronology of events ....” (Ibid.) If the chronology of events raises an inference that the litigation was the catalyst for relief, the burden shifts to the defendant to produce evidence to rebut that inference. (Id. at 573.) However, the ultimate burden remains on the claimant to establish each element. (Ibid.)
In this case, Plaintiff filed its class action complaint on April 9, 2021, alleging causes of action for Violation of Government Code section 53723, Violation of the California Constitution Article XIII, C ¶2 (Proposition 218), Violation of Mandatory Duty (Government Code section 815.6), Declaratory and Injunctive Relief, Money Had and Received, and Unjust Enrichment. The action was filed against the County, County of Sonoma Health Services, Environmental Health and Safety Section, and the California Department of Alcoholic Beverage Control.
The gist of Plaintiff’s case alleged against the County is that it continued to charge public health permit and licensing fees and/or taxes despite the COVID-19 ordered disclosures of restaurants and that it has failed to provide refunds despite not using the money for its intended purpose. Plaintiff alleged that if the County closed or limited Plaintiff and class members’ business operations, it must return the fees, taxes, and/or charges that Plaintiff alleges the County should never have been allowed to collect during the pandemic. Plaintiff sought a declaration that the County’s imposition or collection of fees, taxes, and/or charges from businesses that were prevented from operating is unlawful; an injunction preventing further collection of fees; and, a refund of all fees, taxes, and/or other charges collected. As to the County, these fees are for public health permits and business licensing fees.
Plaintiff’s complaint cites Sonoma County Ordinance Section 14-1-030, pursuant to which Plaintiff alleged the County of Sonoma, Department of Health Services, Environmental Health and Safety Section has a duty to allow Plaintiff to operate its facility so long as annual fees are paid or until the license is suspended or revoked. Plaintiff s license was not suspended or revoked, and the fees were charged, but Plaintiff was prevented from operating.
Plaintiff’s complaint cites Sonoma County Ordinance Section 14-3-040, the County of Sonoma, Department of Health Services, Environmental Health and Safety Section pursuant to which it alleged the County had a duty to charge permit fees that provide for revenues only sufficient to support the costs of providing the services for which the fee is assessed and not significantly more than the costs of providing the services for which the fee is assessed. Plaintiff alleged that the taxes, fees, and/or charges were not proportional to those costs as required.
Plaintiff alleged that pursuant to Government Code section 37101, the County was required to levy taxes so that the measure of tax fairly reflects that proportion of tax activity actually carried on within the taxing jurisdiction; that the collection of health permit and licensing fees and/or tax was imposed, extended, or increased without voter approval as required by Government Code section 53723.
Ultimately, Plaintiff sought a return of “all monies collected under the guise of a permit or licensing fee”…“along with statutory interest.” (Complaint ¶78.)
Plaintiff argues that prior to receiving Plaintiff’s Government Claim, the County was only proposing to reduce late penalties, extend the deadline to pay late penalties, allow payment plans for the full permit fees, and to not increase fees. Plaintiff cites Ex. 7; Ex. 13-15; Ex. 16, ¶¶ 3-4, 19; Ex. 8 at 35:19-25, 42:3-9, 54:1-21, 64:21-66:3, 101:12-103:6.
Exhibit 7 consists of two emails and a draft of the County’s 20/21 Environmental Health Fee Recommendation (“Draft”). In an email dated December 20, 2020, a County employee from the County Department of Health Services, Barbie Robinson, emailed various other county employees indicating the need to present a proposal to the CAO and subsequently to the Board regarding the fact that the County was still collecting inspection fees and not providing services at the full level. Ms. Robinson requested information regarding the amount of money the County collected, a process for returning those funds, a process for starting inspections again, and a time period for waiving fees.
On December 24, 2020, the Count Director of Environmental Health, Christine Sosko, responded with the summary of Environmental Health (“EH”) inspections. She stated she had offered a few options for the recovery of services. She noted that there are several programs within the Department of Environmental Health and that some are part of the COOP and are not behind on services. Others were granted permit extensions and others placed on holds. She noted that County employees would have to look at the individual programs as well as the EH as a whole.
The Draft noted that the EH charges fees to recover its reasonable costs for providing services to members of the public who receive permits and benefit from the services. Each permit fee is based upon the average time and cost for providing these services. It stated that the EH has been impacted over the past five years by numerous disasters, the Covid pandemic and difficult recruitments leaving many positions being vacant or underfilled. The result of this is reflected in the inability of EH to fully deliver the services required of the permits issued.
The Draft states that in August of 2016, the Auditor’s office conducted a review of EH’s revenue and fee process and pointed out one exception to the reasonableness of fees, which was that fees were set for an expected level of service and could be vulnerable if the level of service was unable to be met because of unforeseen challenges such as staffing, recruitments, vacancies, retirements, and disasters. Due to staffing changes, the Draft indicated that the EH was behind in delivery of anticipated services. The recommended action was to reduce all fiscal year 20-21 permit fees by 20-25%, extend fiscal year 20-21 permit terms by up to 6 months, and to create a modified approach based upon the operational history of facilities. As on ongoing concern, the Draft stated: “EH has a large role in disaster response, which is not currently budgeted or has staffing allocated. An action plan to return EH to the desired level of service and account for ongoing disaster and recovery work is necessary for the health and safety of our community and to meet the required Health and Safety Code mandates of the County.”
Exhibit 13 consists of an April 24, 2020 email from Christine Sosko which outlined ideas such as reducing late payment penalties and 20/21 fees, and discussing budgeting for continued operations, including a fee study, and unanticipated situations.
Exhibit 14 is a Task Force EH Chart which includes the EH’s immediate objectives, long-term objectives, and achieved outcomes to date. The immediate objectives from April 24, 2020 or April 27, 2020, and ongoing, included collaborating with the CAO, DTPW, EDB, and Permit Sonoma to “develop business strategies for the recovery of Sonoma County that encourage financial resiliency and business opportunity”; extending the time and number of penalties, utilization of the fee stabilization fund to hold fees at the FY 19/20 rate; and to work with businesses to have them open without any reopening inspection requirements but instead to have them follow a self-guided checklist prior to reopening; to review all Business Recovery Plan proposals with County Counsel; and to revise the EH’s budget. A long-term objective from July 1, 2020 through December 31, 2020 was to “Conduct a Fee Study in FY 20/21, performed by an outside entity to ensure all best practices are being utilized and fees are being charged appropriately for services rendered.”
Exhibit 15 is an email from Christine Sosko dated April 30, 2020, wherein she states a Business Recovery Meeting occurred and a presentation of ideas would happen on May 12 at the Board of Supervisor’s meeting. The email attaches an EH Task Force May 4, 2020 statement of goals. Long term goals included: “Continue to evaluate current services, needs, and financial resources of both DHS, Environmental Health and the community to develop a systematic approach to financial recovery.”
Exhibit 16 is a May 5, 2020 draft Business Recover Planning document by the EH. Paragraph 3 discussed extending the timeline for penalties to allow for an additional 60 days and to also to look to reduce penalty amounts for the following year. Paragraph 4 discussed reducing enforcement for closure of facilities due to non-payment and to allow an extended time for facilities to enter into payment plans and recovery on a case by case basis. Other paragraphs include plans to defer permits for closed facilities, the expedition of permits, and conducting an external fee study to review the fee structure and determine if there are efficiencies that can be implemented.
Exhibit 8 is from the deposition of Christine Sosko. At 35:19-25 and 42:3-9 is testimony stating that in April 2020 the County was considering, in part, extending the timeline for penalties and/or reducing lay payment penalties. At 54:1-21 is testimony that the County was not closing facilities for nonpayment of permit fees and that it was working with facilities on a case-by-case basis to enter into payment plans for payment of past due fees. At 64:21-66:3 is testimony indicating that in July of 2020 EH had not received a directive from the board of supervisors regarding being allowed to waive late penalties for permits; but, an ad hoc plan was in place to work with businesses to pay health permit fees and waive penalties. In July of 2020 it was Ms. Sosko’s plan to ask the board to waive penalties. At 101:12-103.6 is testimony that the health permit fees included the cost of providing inspections, discussion indicating that the EH task force document was intended for the board of supervisor’s planned November meeting, and that it included some of the many actions that were being recommended at that time.
Plaintiff goes on to argue that the board did not discuss refunds or waivers of permits. It sites Exhibit 17 at no. 8 and Exhibit 26. Exhibit 17 is County’s responses to Requests for Admissions. At number 8, the County denied that there was no discussion at the December 15, 2020 board meeting regarding refunding health permit fees paid between July 1, 2020 and June 30, 2021, or regarding forbearing collection of fees due between July 1, 2020 and June 30, 2021.
Exhibit 26 is a 21-page County summary report of the board’s December 15, 2020 meeting.
Plaintiff argues that the Board only considered waiving or offsetting permit fees at the Board’s January 5, 2021 meeting, which was after Plaintiff filed its claim. Exhibit 27 is a 33-page summary report of the January 5, 2021 board of supervisors meeting with various attachments.
In response to Plaintiff’s Request for Admissions, Number 14, the County stated: “At the January 5, 2021 Board meeting, staff presented a report titled “COVID Fiscal Update, Community Needs, Eviction, and Sick Leave Policies” which recommended the Board “[p]rovide direction to staff regarding the Local Aid Strategies and direct staff to return to the Board for further action… .” (SONOMA-00317.) The report noted that “[b]ased on an interest expressed by Board Members in December due to many Federal benefits expiring, staff has brought forward information about potential local aid strategies, including financial assistance, business grants, food programs, and rental assistance as options for funding at the Board’s discretion.” (SONOMA-00318.) The report included sections on Business Community Assistance and Fiscal Options for Local Assistance, and identified funding sources for additional local aid. (SONOMA-00346.)
“At the January 5, 2021 Board meeting, Board members asked staff about the possibility of offsetting or waiving county fees on businesses. (SONOMA–00431.) This meeting was recorded, and is publicly available through the County’s website. The County admits the PowerPoint presentation titled “FY 2020-21 COVID-19 Fiscal Update, Community Needs, Eviction and Sick Leave Policies” presented at the January 5, 2021 Board meeting did not reference refunding or forbearing the collection of restaurant health permit fees.” (Exhibit 17, No. 14.)
Plaintiff argues that Exhibits Ex. 17 at No. 13; Ex. 28; and Ex. 8 at 105:20-106:23 support finding that offsetting or waiving county fees was likely addressed during closed session. In response to Request for Admission, number 13, the County stated that Board members asked staff about the possibility of offsetting or waving county fees at the January 5, 2020 meeting. Exhibit 28 is a draft of the 25-page meeting minutes. Ms. Robison and other County employees presented at that meeting and numerous members of the public commented. Exhibit 8 at 105:20-106:23 contains testimony from Christine Sosko indicating that she believed the Board discussed offsetting and waiving fees on January 5, 2021; offsetting meaning a refund of a permitted amount, not collecting amounts due, or not charging them at all.
Plaintiff provides additional evidence that the County continued to work towards providing businesses with offsets and waivers. (Ex. 9 at 435, 468 at No. 43; Ex. 29 at 743; Ex. 8 at 118:13-119:12, 126:16-23; Ex. 31; Ex. 30 at 1900; Ex. 8 at 136:23-139:25; Ex. 30 at 1900-1902; Ex. 32; Ex. 8 at 148:7-25; 153:4-11.)
The Board approved its plan on May 25, 2021 providing an offset to businesses affected by the COVID-19 pandemic. (Exhibit 2, pg. 476, 490.) The resolution was to delegate authority to the Director of Health Services to develop a pandemic relief program and grant up to $2.8 million in pandemic offsets to eligible businesses based upon the following criteria: The business was required to close after March 1, 2020 or the business was required to significantly modify operations to comply with a local or State health order after March 1, 2020; and the business requires an annual permit fee to be paid pursuant to Sonoma County Code Section 14-1-030 to operate and is not issued a permit on an as needed basis. (Id., pg. 490.) The County also offered businesses the opportunity to request a hearing pursuant to Sonoma County Code Section 14-1-060 to reconsider, reduce, or eliminate the annual permit fee and any penalties and interest charged if the business was not operating for all or part of the period for which it paid fees due to orders arising from the pandemic; to continue to offer businesses the opportunity to temporarily suspend the permit for good cause if the facility must cease operations or modify operations as a result of local or state health orders, and to continue to offer the opportunity to request a hearing pursuant to Sonoma County Code Section 14-1-060 to consider the determination of the request for suspension of the annual permit for good cause. Regarding the latter, those suspensions extended the expiration date of permits and deferred permit renewal fees as an accommodation to the businesses. And the Board determined the County would continue to accept and process claims for refunds pursuant to Government Code sections 810 et seq. and other applicable law. (Ibid.)
Plaintiff’s evidence establishes a continuous timeline from the start of the pandemic-induced business shut-downs through mid-2021 wherein the County was working towards numerous solutions to pandemic-created problems, as well as other county-wide issues. Absent is how this lawsuit was a material factor or contributed in a significant way to influencing the County’s decision-making process to offset fees and waive penalties. Plaintiff has only established that it filed a claim with the County on December 18, 2020, which was reviewed and discussed sometime thereafter by EH employees and county counsel, and acknowledged by the County on January 4, 2021; and that this action was filed on April 9, 2021. While the claim may have had some impact, it does not appear that this lawsuit did as the County was already in the process of adjusting fees and penalties.
In addition, Plaintiff cites evidence that other businesses were also putting pressure on the County. (See Ex. 3 at 1168 [July 22, 2020 email asking what relief is available to food establishments that can’t afford to pay the permit fee.]; Ex. 4 at 1517 [October 21, 2020 email asks “is there any discount for restaurants ... [that] are severely limited]; id. at 1510 (January 20, 2021 email asking if the County will waive the permit fee to which it answers “at this time there is no [subsidy] program available [but] this is something we are looking into”). This evidence supports finding it was more likely than not that pressure from the entirety of the restaurant business community was the catalyst to the County’s actions.
By April 24, 2020, the Board had already directed the EH to develop a late penalties plan to reduce late payment penalties, extend permits without additional payments, and determine that fees were appropriate to the services performed. (Exhibit 2 at pgs. 488, 489.) In fact, the County, through the EH, removed penalties from Plaintiff’s account on August 1, 2020. (Exhibit 8 at 74:14-75:18; Exhibit 20 at pg. 594; Exhibit 22 at 1198.) And, by January 2021, the County had more fully developed its plans to waive/reimburse fees and extend permits for impacted businesses in FY 2020-2021. (See e.g., Exhibit 8 at 118:13-1198:21, 126:16-23; Exhibit 9 at pg. 446, 468; Exhibit 29 at pg. 743.)
That this action was filed 47 days prior to the Board’s resolution offsetting payments from numerous businesses is of little consequence. Plaintiff has offered nothing beyond his claim and this action to establish that it was the Plaintiff’s lawsuit which spurred the County to act. In fact, the evidence establishes that the County began considering the issue long before it received Plaintiff’s claim and this action was filed. The evidence also supports finding that the County does not move quickly on financial issues, as it has its various procedures, proposals, and processes to work through. Thus, Plaintiff’s action filed a mere 47 days prior to the Board’s resolution on May 25, 2021, granting offsets makes it more likely than not that this Plaintiff’s lawsuit had little to do with nudging the County towards granting permit fee offsets and waivers.
ii. Whether lawsuit had merit and achieved its catalytic effect
Plaintiff provides one paragraph in support of its position that its lawsuit had merit. Plaintiff argues that the lawsuit was “clearly meritorious” as the Board ultimately approved the relief sought.
“Attorney fees may not be obtained, generally speaking, by merely causing the acceleration of the issuance of government regulations or remedial measures, when the process of issuing those regulations or undertaking those measures was ongoing at the time the litigation was filed. When a government agency is given discretion as to the timing of performing some action, the fact that a lawsuit may accelerate that performance does not by itself establish eligibility for attorney fees.” (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 609.) Moreover, the fact that it chooses to exercise its discretion in a manner favorable to a plaintiff in a lawsuit filed against it does not mean that its actions were required by law. (Ibid.)
Here, Plaintiff’s complaint alleged the County violated Government Code section 53723, Article XIII of the California Constitution (Proposition 218), and their Mandatory Duty in Government Code section 815.6. Plaintiff has not established that the County violated any of these. Nor has Plaintiff provided support that its causes of action for Declaratory and Injunctive Relief, Money Had and Received, and Unjust Enrichment had merit under the circumstances of this case wherein the County had to respond to an evolving pandemic.
iii. Whether Plaintiff made a reasonable attempt to settle
Plaintiff’s support for this element is that Plaintiff pressured the County to provide relief back in July 2020—prior to the commencement of this action in April of 2021. And, that he filed a claim against the County on December 18, 2020.
Part of the analysis on this element is one of its explicit requirements of CCP section 1021.5—the “necessity ... of private enforcement” of the public interest. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 577.) “Awarding attorney fees for litigation when those rights could have been vindicated by reasonable efforts short of litigation does not advance that objective and encourages lawsuits that are more opportunistic than authentically for the public good. Lengthy prelitigation negotiations are not required, nor is it necessary that the settlement demand be made by counsel, but a plaintiff must at least notify the defendant of its grievances and proposed remedies and give the defendant the opportunity to meet its demands within a reasonable time.” (Ibid.)
Here, the evidence establishes that the County was already on the path towards providing offsets/refunds and waivers. Plaintiff has not shown that private enforcement was necessary.
C. Whether the action resulted in the enforcement of an important right affecting the public interest
Plaintiff has not established that the action resulted in an important “right” affecting the public interest. While the relief given by the County was clearly beneficial to businesses, Plaintiff has not established that it or other businesses had a “right” pursuant to Plaintiff’s theories as alleged in its complaint.
D. Whether a significant benefit was conferred on the general public or a large class of persons
Again, while the County’s relief conferred a significant benefit on a large class of persons, Plaintiff has not established that this lawsuit contributed to that relief.
E. Whether the necessity of private enforcement and the attendant financial burden make an award of fees appropriate.
Plaintiff argues that private enforcement was necessary because the County “ignored” Plaintiff’s claim. However, under the facts of this case, the evidence establishes that the County was already on the path towards providing offsets/refunds and waivers and that private enforcement was not necessary.
F. Conclusion and Order
For the reasons stated above, the motion is DENIED.
County’s counsel shall submit a written order to the court consistent with this ruling and in compliance with California Rules of Court, Rule 3.1312.
8. SCV-268515, Razo-Orrego v Poppy Bank
This matter is on calendar for the motion of Plaintiff Alexia Razo-Orrego (“Plaintiff”) for an order granting approval of a settlement agreement made pursuant to the Private Attorneys General Act.
Plaintiff filed this action on June 3, 2021, alleging causes of action for violation of PAGA for failure to pay minimum wages and overtime wages, failure to provide meal and rest periods, failure to provide accurate itemized wages statements, and for failure to pay wages due at separation of employment.
1. PAGA standards
Under PAGA, an aggrieved employee may bring a civil action personally and on behalf of other current or former employees to recover civil penalties for Labor Code violations. (Cal Labor Code section 2699(a).) 75 percent of any penalties recovered go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining 25 percent for the employees. (Id. at (i).) PAGA is intended “to augment the limited enforcement capability of [LWDA] by empowering employees to enforce the Labor Code as representatives of the Agency.” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383.) A judgment in a PAGA action binds all those, including nonparty aggrieved employees, who would be bound by a judgment in an action brought by the government. (Id. at p. 381.)
Under PAGA, a trial court must review and approve any settlement of PAGA claims. (Cal. Lab. Code § 2699(l)(2).) Additionally, the proposed settlement must be submitted simultaneously to the LWDA. (Ibid.)
While PAGA requires a trial court to approve a PAGA settlement, district courts have noted there is no governing standard to review PAGA settlements. (Loreto v. General Dynamics Information Technology, Inc. (S.D. Cal., May 7, 2021, No. 319CV01366GPCMSB) 2021 WL 1839989, at *14.) What guidance there is comes largely from federal cases. Following the guidance provided by LWDA, the court in O'Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110 determined that the relief provided for under the PAGA must be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public and, in the context of a class action, the court must evaluate whether the settlement meets the standards of being “fundamentally fair, reasonable, and adequate” with reference to the public policies underlying the PAGA. (O'Connor, supra, at 1133.) However, any settlement may be substantially discounted given that courts often exercise their discretion to award PAGA penalties below the statutory maximum even where a claim succeeds at trial. (Labor Code section 2699(e)(2); see Viceral v. Mistras Group, Inc. (N.D. Cal, Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8-9).
“In September 2003, the Legislature enacted [PAGA] (Lab. Code, § 2698 et seq.; Stats. 2003, ch. 906, § 2, eff. Jan. 1, 2004). The Legislature declared that adequate financing of labor law enforcement was necessary to achieve maximum compliance with state labor laws, that staffing levels for labor law enforcement agencies had declined and were unlikely to keep pace with the future growth of the labor market, and that it was therefore in the public interest to allow aggrieved employees, acting as private attorneys general, to recover civil penalties for Labor Code violations, with the understanding that labor law enforcement agencies were to retain primacy over private enforcement efforts. (Stats. 2003, ch. 906, § 1.)” (Arias v. Superior Court (2009) 46 Cal.4th 969, 980.)
“A PAGA claim is legally and conceptually different from an employee's own suit for damages and statutory penalties.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81.) An aggrieved employee suing under PAGA “does so as the proxy or agent of the state's labor law enforcement agencies.” (Arias, supra, 46 Cal.4th at p. 986.) Every PAGA action is “a dispute between an employer and the state.” (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 386.) In a PAGA lawsuit, “the employee plaintiff represents the same legal right and interest as state labor law enforcement agencies—namely, recovery of civil penalties that otherwise would have been assessed and collected by the [LWDA].” (Arias, supra, at 986.)
Many federal district courts have applied the “fair, reasonable, and adequate” standard from class action cases to evaluate PAGA settlements. (Chamberlain v. Baker Hughes, a GE Co., LLC (E.D. Cal. July 29, 2020, No. 1:19-cv-00831-DAD-JLT) 2020 WL 4350207, 2020 U.S. Dist. Lexis 134582; Rincon v. West Coast Tomato Growers, LLC (S.D. Cal. Feb. 12, 2018, No. 13-CV-2473-JLS) 2018 WL 828104 at *2, 2018 U.S. Dist. Lexis 22886 at *6.) In class actions, courts have a fiduciary duty to protect the interests of absent class members, whose individual claims will be discharged. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 129.) The requirement of court approval serves to prevent fraud, collusion, unfairness, and to protect unnamed class members “whose rights may not have been given due regard by the negotiating parties.” (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800–1801.) In this role, the trial court conducts an “independent assessment of the adequacy of the settlement terms,” which requires that the court have before it a record from which it can discern sufficient information about the amount in controversy and the realistic range of outcomes. (Kullar, supra, at 120, 132; Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399, 409.) Thus, the trial court’s independent determine whether a PAGA settlement is fair and reasonable is an appropriate standard. (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 76.)
The court is vested with a broad discretion in making its determination, and it may consider a number of non-exhaustive factors in its analysis, including “the strength of plaintiffs’ case, the risk, expense, complexity and likely duration of further litigation, the risk of maintaining class action status through trial, the amount offered in settlement, the extent of discovery completed and the stage of the proceedings, the experience and views of counsel, the presence of a governmental participant, and the reaction of the class members to the proposed settlement.” (Dunk, supra, at 1801; Moniz, supra, at 77.)
On January 11, 2022, the Parties participated in a full-day mediation conducted by Jill Sperber, Esq. (Young decl., ¶4.) Prior to mediation, Plaintiff propounded multiple sets of written discovery and conducted informal discovery. (Id., at ¶3.) The parties exchanged information regarding Plaintiff’s claims and Defendant's defenses thereto, including, and not limited to, Plaintiffs employment records, sampling of time and pay data, job descriptions, and Defendant's operations and employment policies, and procedures. (Ibid.)
Plaintiff estimates that if she prevailed on all claims as alleged in the operative complaint, the potential exposure for civil penalties for the approximately three thousand one hundred seventy-five (3,175) pay periods would be approximately seventy-eight thousand one hundred fifty dollars ($78,150.00) for the first violation. This calculation applies the initial PAGA penalty of one hundred dollars ($100.00) per employee from one year and sixty-five days prior to the date Plaintiff filed her complaint. The penalties of two hundred dollars ($200.00) applied to each subsequent pay period for each employee for each of the alleged Labor Code violations was calculated as approximately one million two hundred thirty-two thousand four hundred dollars ($1,232,400.00). (Young decl., ¶12.)
Plaintiff’s counsel states that employers frequently argue that the "subsequent violation" penalty of two hundred dollars ($200.00) can only be assessed after the employer has been cited by the LWDA and the conduct continues. Further, employer defendants also frequently argue that civil penalties cannot be "stacked" or, in other words, no more than one penalty can be assessed in the same pay period. (Young dec., ¶13.) After assessing the risks of continued litigation, contested legal issues, and uncertainty at trial and after trial during the penalty assessment phase, Plaintiff estimated a realistic potential civil penalty exposure in this case would be from seventy-eight thousand one hundred fifty dollars ($78,150.00) for the first violation, to one million two hundred thirty-two thousand four hundred dollars ($1,232,400.00) including subsequent two-hundred-dollar ($200.00) penalties. (Ibid.) Plaintiff’s counsel states it was likely that Plaintiff would at least prevail on the initial violation. (Ibid.) Therefore, Plaintiff’s counsel determined that the settlement of two hundred twenty-seven thousand five hundred dollars ($227,500.00) represents full recovery of the estimated potential initial penalties or approximately eighteen percent (18%) of the subsequent violation penalties that, in counsel’s view, could be assessed. (Ibid.)
The settlement covers the “PAGA Settlement Group Members,” which, based upon Defendant’s representation to Plaintiff, means one hundred forty-three (143) current and former non-exempt employees of Defendant in California at any time during the period from March 26, 2020 to January 21, 2022. (Young decl., Exhibit A, ¶I.P.)
The proposed $227,500.00 covers (i) all Settlement Shares to PAGA Settlement Group Members, (ii) the LWDA Payment, (iii) the Representative Plaintiff’s Payment, (iv) the Plaintiff’s Counsel Fees and Expenses Payment, and (iv) the Settlement Administrator’s fees and expenses. (Young decl., Exhibit A, ¶III.B.) The settlement administrator is to receive up to $3,500. (Id., ¶III. D.) LWDA will receive the required 75% of the net settlement amount. (Id., ¶III.E.) Plaintiff’s counsel is to receive $75,833.33 which is one-third of the total amount. (Id. ¶III.F.) Plaintiff’s counsel’s expenses are not to exceed $12,000—as of the date of the petition they amount to $8,137.62. (Ibid; Memo, 10:12.) Plaintiff will receive a representative payment of $2,500. (Id., at III.G.) What remains will be distributed to the 143 group members. There is no right to opt out of PAGA settlements and upon approval the Defendant will be released from liability for causes of action that could have been brought based upon the facts in the complaint. (Id., at III.J.2.)
In short, the parties propose that Plaintiff’s attorneys receive $75,833.33 and up to $12,000 in costs, for a total of up to $87,833.30; Plaintiff receive $2,500; and the settlement administrator receive up to $3,500. Thereafter, LWDA will receive approximately $100,250.03. This leaves approximately $33,416.67 for the settlement group members. If divided equally, they would each receive approximately $233.68.
Mr. Young’s declaration discusses the breakdown of how Plaintiff’s counsel determined the reasonableness of the settlement amount. Plaintiff estimates that if she prevailed on all claims as alleged in the operative complaint, the potential exposure for civil penalties for approximately three thousand one hundred seventy-five (3,175) pay periods would be approximately seventy-eight thousand one hundred fifty dollars ($78,150.00) for the first violation. This calculation applies the initial PAGA penalty of one hundred dollars ($100.00) per employee from one year and sixty-five days prior to the date Plaintiff filed her complaint. The penalties of two hundred dollars ($200.00) applied to each subsequent pay period for each employee for each of the alleged Labor Code violations was calculated to be approximately one million two hundred thirty-two thousand four hundred dollars ($1,232,400.00).
This analysis is not clear to the Court. If there were 3,175 pay period violations assessed at $100 each, that would amount to $317,500, unless Plaintiff means that there were only approximately 781 first violations. It appears from the second calculation that there were 6,162 subsequent violations. Some of these alleged violations occurred along with at least one other violation and thus could not be “stacked.” Additionally, Defendant could have argued that it must have been cited by LWDA before a second penalty could be assessed. Plaintiff states that employer defendants generally argue that the maximum penalty recoverable is $50 per day pursuant to Labor Code section 558 for violations of orders of the Industrial Welfare Commission regulating hours and days of work.
Plaintiff also argues that Defendant argued that this action could not be maintained as a PAGA claim as it did not meet the “manageability” requirement. Plaintiff cites Litty v. Merrill Lynch & Co., Inc. (C.D. Cal., Nov. 70,2014, No. CV 14-0425 PA PJWX) 2014 WL 5904904, at *3. It appears Plaintiff is referring either to the “commonality” or “typicality” requirements for class claims, both of which the plaintiff failed to satisfy in Litty due to variations in the location and performance of job duties.
This motion could have been filed in any similar wage and hour case. The motion only makes generalities. Plaintiff discusses what she alleges, what Defendant alleges, that both parties “investigated the veracity, strength, and scope of Plaintiff’s PAGA claims.” (Young decl., ¶3.) That the parties conducted discovery and exchanged information. (Ibid.) That counsel “undertook significant investigation” and “invested time reviewing and analyzing relevant documents and data.” (Ibid.) That counsel evaluated potential “strengths and weaknesses.” (Id., at ¶4.) During mediation, the parties “continued to discuss and evaluate all aspects of the case, including the risks and delays of further litigation, the risks to the Parties of proceeding with trial, the law relating to representative PAGA actions, wage-and-hour enforcement, the evidence produced and analyzed, and the risks of trial and appeals, among other things.” (Id., ¶4.) The parties “agreed that the matter was well-suited for settlement given the strengths and weaknesses of the alleged claims, the expense and length of continue[d] proceedings necessary to litigate the matter through trial and any possible appeals, the uncertainty and risk of the outcome of further litigation, and the difficulties and delays inherent in such litigation.” (Id., at ¶5.) Plaintiff also states that there is a lack of clear legal authority on how the penalties are calculated. (Id., ¶11.)
Completely absent from this motion is any attempt to demonstrate what precise discovery was done; what information Plaintiff’s counsel obtained and for which settlement members; what analyses and investigations were done; the specific strengths and weaknesses of this case; what specific risks are present in delaying this case; and how the clarity or lack thereof in the area of wage-and-hour law supports the settlement of this case over its litigation.
Additionally, as of the time the Court reviewed this matter, proof of service showing service on LWDA had not been filed.
For the reasons stated above, the motion is CONTINUED to December 7, 2022, at 3:00 p.m., in Department 16, to allow Plaintiff to provide information specific to this case which demonstrates that the settlement is fair, reasonable, and adequate; and to file proof of service on the LWDA.
9. SCV-269517, Butterworth v Mills
This matter is on calendar for the motion of George J. Keller to be relieved as counsel for trustee Bruce Mills. The matter was first heard on September 9 and continued to this date to allow Mr. Kelly to file proof of service of the proposed order. (See Cal. Rules of Court, Rule 3.1362(d).) At the time the Court reviewed this matter, no supplemental proof of service had been filed.
On September 9, 2022, Jeffrey Neil Zimmerman filed a substitution of counsel indicating that he is now the attorney of record for defendant Bruce H. Mills, in his individual capacity and in his capacity as a trustee for the Bruce H. Wells Trust. Accordingly, the motion is dropped as MOOT.
10. SCV-271175, In Re: Stone Street Originations, LLC
This matter is on calendar for the petition of Stone Street Originations, LLC for approval pursuant to Insurance Code section 10134 et seq., of the transfer of certain structured settlement payment rights. This matter initially came on calendar on August 31, 2022, and was continued to allow the parties to provide additional information that the proposed transfer is in the best interest of the transferor. As of the time the Court reviewed this matter, no additional information had been provided. Accordingly, the motion is DENIED.