Pleading Wizard



DATE: MAY 26, 2021 TIME: 1:30 P.M.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |20CV363895 |Johnson v. Drill Tech Drilling & Shoring, Inc. |Click on LINE 1 for Ruling |

|LINE 2 |18CV335800 |Arroyo v. J.R. Simplot Company |Click on LINE 2 for Ruling |

|LINE 3 |17CV310734 |Lacy v. Harman International Industries, Inc. (LEAD |Click on LINE 3 for Ruling |

| | |Case) (Consolidated with 17CV313652; 17CV310761, | |

| | |17CV313651, 17CV319045) | |

|LINE 4 |20CV373916 |Chai v. Velocity Investments, LLC, et al. |Click on LINE 4 for Ruling |

|LINE 5 |20CV365134 |Attaway v. Alliance Residential, LLC (To Be Included |Click on LINE 5 for Ruling |

| | |in Alliance Residential Wage and Hour Cases, JCCP5173)| |

|LINE 6 | | |Click on LINE 6 for Ruling |

|LINE 7 | | |Click on LINE 7 for Ruling |

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|IZAYA JOHNSON, on behalf of himself, all others similarly situated, |Case No. 20CV363895 |

| | |

|Plaintiff, |TENTATIVE RULING RE: MOTION FOR SUMMARY JUDGMENT OR [SIC], IN THE|

| |ALTERNATIVE, SUMMARY ADJUDICATION |

|vs. | |

| | |

|DRILL TECH DRILLING & SHORING, INC.; a California corporation; and DOES 1 | |

|through 50, inclusive, | |

| | |

|Defendants. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on May 26, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class and representative action arising out of various alleged wage and hour violations. The First Amended Complaint (“FAC”), filed on April 27, 2020, sets forth the following causes of action: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Periods; (3) Failure to Pay Hourly Wages; (4) Failure to Indemnify; (5) Failure to Provide Accurate Written Wage Statements; (6) Failure to Timely Pay All Final Wages; (7) Unfair Competition; and (8) Civil Penalties.

On January 27, 2021, the court granted the petition of defendant Drill Tech Drilling & Shoring, Inc. (“Defendant”) to compel arbitration of the third, fourth, fifth, and sixth causes of action, as well as the seventh cause of action to the extent it is derivative of those causes of action.

Now before the court is Defendant’s motion for summary judgment or [sic], in the alternative, summary adjudication of the first, second, third, seventh, and eighth causes of action. On May 12, 2021, plaintiff Izaya Johnson (“Plaintiff”) filed a notice of non-opposition to the motion.

II. DISCUSSION

Not all causes of action in the FAC are subject to Defendant’s motion, so summary judgment must be DENIED. In light of Plaintiff’s non-opposition, however, the alternative motion for summary adjudication appears to have merit.

However, before the court can rule on the alternative motion, two issues require clarification. First, Defendant is moving for summary adjudication as to only part of the third and seventh causes of action. Generally, summary adjudication can only be granted if it completely disposes of a cause of action. (Code Civ. Proc., § 437c, subd. (f).)

Second, the court’s January 27, 2021 order, adopting the tentative ruling which neither party contested, directs that the entire third cause of action be sent to arbitration. Reviewing the petition to compel arbitration in the context of the current unopposed motion, the court assumes that the parties intended that only part of the third cause of action be compelled to arbitration – the portion concerning minimum wages or “off the clock work” – and that the overtime wages portion of the third cause of action would remain before this court. If this is correct, the parties could address this issue by preparing and submitting a stipulated proposed amended order on the petition to compel arbitration, directing that the third cause of action be sent to arbitration only as to minimum wages or “off the clock work”.

The parties are ordered to appear at the hearing on the motion to discuss these issues.

The court will prepare the final order.

NOTICE: Pursuant to the Judicial Council’s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely until further notice. Please see the General Order re: COVID-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10. If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing should contact CourtCall.

Public access to telephonic hearings is available on a listen-only line by calling 866-434-5269 (access code 6433515).

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing or listening in on a public access line.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|LUIS ARROYO, on behalf of himself, all others similarly situated, |Case No. 18CV335800 |

| | |

|Plaintiff, |TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION |

| |SETTLEMENT |

|vs. | |

| | |

|J.R. SIMPLOT COMPANY, a Nevada Corporation; and DOES 1 through 50, | |

|inclusive, | |

| | |

|Defendants. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on May 26, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action arising out of alleged violations of the Fair Credit Reporting Act (“FCRA”), the California Investigative Consumer Reporting Agencies Act (“ICRAA”), and the California Consumer Credit Reporting Agencies Act (“CCRAA”). Plaintiff Luis Arroyo (“Plaintiff”) also alleges violations of the Labor Code and Business and Professions Code on an individual basis.

The First Amended Complaint, filed on October 7, 2019, sets forth the following causes of action: (1) Violation of 15 U.S.C. § 1681b(b)(2)(A) (FCRA); (2) Violation of 15 U.S.C § 1681d(a)(1) and 1681g(c) (FCRA); (3) Violation of California Civil Code § 1786, et seq. (ICRAA); (4) Violation of California Civil Code § 1785, et seq. (CCRAA); (5) Failure to Provide Meal Periods; (6) Failure to Provide Rest Periods; (7) Failure to Pay Hourly Wages; (8) Failure to Provide Accurate Written Wage Statements; (9) Failure to Timely Pay all Final Wages; and (10) Unfair Competition.

The parties have reached a settlement. On November 4, 2020, the court granted preliminary approval of the settlement. Plaintiff now moves for final approval.

II. LEGAL STANDARD

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “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.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

III. DISCUSSION

The case has been settled on behalf of the following class:

[A]ll of Defendant’s current, former, and prospective applicants for employment in the United States who applied for a job with Defendants at any time during the period for which a background check was performed beginning five years prior to the filing of this action and ending on the date that final judgment is entered in this action.

In connection with preliminary approval, Plaintiff asserted that defendant J.R. Simplot Company (“Defendant”) would pay a maximum non-reversionary amount of $950,000, which would include attorney fees of $316,666.66, costs up to $25,000, a service award of $5,000, and settlement administration costs of $43,000. Plaintiff states that, at the time of the settlement, Defendant represented that there were approximately 9,627 putative class members, but after preliminary approval was granted the contact information of 13,448 individuals was provided to the settlement administrator. This triggered the escalator clause of the settlement and increased the maximum settlement amount from $950,000 to $1,232,055. As a result, Plaintiff now seeks $413,252 in attorney fees, $11,432.15 in costs, $69,000 in administration costs, and $5,000 as an incentive award to Plaintiff.

Funds from checks not cashed for 120 days after distribution will be paid to a cy pres beneficiary. Plaintiff states in the moving papers that the cy pres is National Consumer Law Center. (Declaration of Shaun Setareh in Support of Plaintiff’s Motion for Final Approval of Class Action Settlement, Award of Attorneys’ Fees, Reimbursement of Litigation Costs, and Enhancement Award (“Setareh Decl.”), ¶ 37.) However, Plaintiff also submits the Declaration of Jose Maria D. Patino, Jr. re: Designation of Cy Pres Beneficiary, in which it is asserted that Homeboy Industries will be designated the cy pres. It appears that the parties intend for Homeboy Industries to be the cy pres and did not update the other papers to reflect that change. The parties are requested to confirm whether this is correct. The court finds that Homeboy Industries, which provides services to former gang members, is an appropriate cy pres beneficiary.

On March 11, 2021, the settlement administrator mailed notice packets to 13,448 individuals in the class list. (Declaration of Mary Butler Regarding Notice and Settlement Administration (“Butler Decl.”), ¶ 8.) Ultimately, 183 notice packets have remained undeliverable. (Id. at ¶ 9.)

As of April 30, 2021, there were 13 requests for exclusion. (Butler Decl., ¶ 14.) The settlement administrator asserts that two of the exclusion requests are deficient because one is missing a signature and one is missing a telephone number. The court finds that both of these exclusion requests substantially comply with the opt-out requirements. Each of these individuals appears to have had the intent to be excluded and there is enough information for identification, so the requests should be considered valid for purposes of the settlement. The names of the individuals who requested exclusion must be provided to the court for identification in the final settlement order.

The settlement administrator states that it has not received any objections. (Butler Decl., ¶ 12.) One objection was sent to the court directly in the form of a handwritten letter, and was forwarded to counsel; however, that communication appears to be unrelated to any aspect of the settlement and does not address why the settlement should not be approved.

The average payment per class member is approximately $54.58. (Butler Decl., ¶ 13.) The court previously found the proposed settlement is fair and the court continues to make that finding for purposes of final approval.

Plaintiff requests a class representative incentive award of $5,000. The representative has submitted a declaration detailing his participation in the case. Arroyo states that he spent over 30 hours on this case, including speaking with class counsel, assisting in gathering information and documents, and participating in mediation. (Declaration of Luis Arroyo, ¶ 9.)

The class representative’s efforts in the case resulted in a benefit to the class. Moreover, Plaintiff undertook risk by putting his name on the case because he may have been responsible for costs if he lost the case and because it might impact his future employment. (See Covillo v. Specialtys Cafe (N.D. Cal. 2014) 2014 WL 954516, at *8 [incentive awards are particularly appropriate where a plaintiff undertakes a significant “reputational risk” in bringing an action against an employer].) Accordingly, the court finds the incentive award is warranted and it is approved.

The court also has an independent right and responsibility to review the requested attorney fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiff’s counsel requests attorney fees in the amount of $413,252. This is approximately 33.5% of the total settlement: a different and higher percentage than sought on preliminary approval. Plaintiff’s counsel provides evidence demonstrating a total lodestar of $174,101.25. (Setareh Decl., ¶ 30.) This results in a multiplier of 2.37. This multiplier is high, but the court will approve fees in the amount of $410,685 (1/3 of the total settlement), which is reasonable as a percentage of the common fund.

Plaintiff’s counsel provides evidence of incurred costs in the amount of $11,275.15 plus $157 in anticipated costs. (Setareh Decl., ¶ 26 and Ex. A.) The costs are approved, with the exception of the anticipated costs, in the amount of $11,275.15. The settlement administration costs of $69,000 are also approved. (Butler Decl., ¶ 14.)

The motion for final approval of class action settlement is GRANTED, subject to the modifications discussed above.

The court will prepare the final order and judgment if this tentative ruling is not contested and counsel has provided the required information.

The court will set a compliance hearing for December 1, 2021 at 2:30 p.m. in Department 3. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the court’s attention. Counsel may appear at the compliance hearing remotely.

NOTICE: Pursuant to the Judicial Council’s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely until further notice. Please see the General Order re: COVID-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10. If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing should contact CourtCall.

Public access to telephonic hearings is available on a listen-only line by calling 866-434-5269 (access code 6433515).

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing or listening in on a public access line.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|SYLVESTER LACY, on behalf of himself, and all others similarly situated, |Lead Case No. 17CV310734 |

| |Consolidated with: 17CV313652, 17CV310761, 17CV313651, 17CV319045 |

|Plaintiff, | |

| |TENTATIVE RULING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS |

|vs. |ACTION SETTLEMENT |

| | |

|HARMAN INTERNATIONAL INDUSTRIES, INC., a Delaware corporation; and DOES 1 | |

|through 50, inclusive, | |

| | |

|Defendants. | |

| | |

| | |

|AND RELATED CASES. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on May 26, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative class action arising out of various alleged wage and hour violations. The Second Amended Complaint, filed on December 22, 2020, sets forth the following causes of action: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Periods; (3) Failure to Pay Hourly Wages; (4) Failure to Indemnify; (5) Failure to Provide Accurate Written Wage Statements; (6) Failure to Timely Pay All Final Wages; (7) Unfair Competition; and (8) Civil Penalties.

The parties have reached a settlement. Plaintiffs Sylvester Lacy, Fernando Soto, and Mercedes Williams (collectively, “Plaintiffs”) move for preliminary approval of the settlement.

II. LEGAL STANDARD

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.)

In determining whether a class settlement is fair, adequate and reasonable, the trial court should consider relevant factors, such as “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.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

III. DISCUSSION

A. Provisions of the Settlement

The case has been settled on behalf of the following classes:

Ryder Rest Period Class:

[A]ll non-exempt persons who are or were employed directly by Ryder in a non-exempt warehouse position at any time during the Class Period.

Security Check Class:

[A]ll non-exempt persons who are or were employed directly by Ryder in a non-exempt warehouse position in California at any time during the Class Period.

(Declaration of Shaun Setareh in Support of Amended Motion for Preliminary Approval of Class Action Settlement and Certification of Settlement Class (“Setareh Decl.”), Ex. A (“Settlement Agreement”), §§ 48-49.)

The class period is May 22, 2013, through preliminary approval. (Settlement Agreement, § 6.)

According to the terms of settlement, defendants Ryder Integrated Logistics, Inc. and Kimco Staffing Services, Inc. (collectively, “Defendants”) will pay a total non-reversionary amount of $2,600,000. (Settlement Agreement, § 2.) The total settlement payment includes attorney fees of $866,666.66, costs up to $50,000, incentive awards of $10,000 for each class representative ($30,000 total), settlement administration costs estimated to be $49,000, and a PAGA allocation of $200,000 ($150,000 of which will be paid to the Labor Workforce Development Agency and $50,000 to the PAGA employees). (Settlement Agreement, § 2; Setareh Decl., ¶ 17.) From the remaining net settlement amount, 25% will be paid to the Ryder Rest Period Class and 75% will be paid to the Security Check Class.

Plaintiff states that funds from checks not cashed for 180 days from the date of mailing will be paid as follows: (1) 25% to the State Treasury for deposit in the Trial Court Improvement and Modernization Fund; (2) 25% to the State Treasury for deposit into the Equal Access Fund of the Judicial Branch; and (3) 50% to the Santa Clara County Bar Foundation. (Settlement Agreement, § 97.)

Code of Civil Procedure section 384 provides that unclaimed class member funds shall be paid “to nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons, or that promote the law consistent with the objectives and purposes of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent.” Payments to the State Treasury do not meet the criteria set forth in section 384. The parties shall meet and confer, and propose a different cy pres plan for final approval.

B. Fairness of the Settlement

Plaintiffs assert the settlement is fair and is the product of extensive arm’s-length negotiations through a mediator. Plaintiff contends that the maximum potential recovery, excluding the PAGA claim, is $16,271,745.70. (Setareh Decl., ¶ 8.) The maximum PAGA penalties are estimated to be $2,841,300. (Ibid.) Despite a high potential recovery, Plaintiffs contend that their likelihood of prevailing on all causes of action and recovering anything close to the maximum potential damages is extremely low.

Overall, the court finds the settlement is fair. The settlement provides for some recovery for each class member and eliminates the risk and expense of further litigation.

C. Incentive Award, Fees, and Costs

Plaintiffs request incentive awards of $10,000 for each class representative ($30,000 total).

The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

Prior to the final approval hearing, the class representatives shall submit declarations detailing their participation in the action. The court will make a determination at that time.

The court also has an independent right and responsibility to review the requested attorney fees and only award so much as it determines reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel will seek attorney fees of $866,666.66 (1/3 of the total settlement fund). Plaintiffs’ counsel shall submit lodestar information (including hourly rates and hours worked) prior to the final approval hearing in this matter so the court can compare the lodestar information with the requested fees. Plaintiffs’ counsel shall also submit evidence of actual costs incurred up to the date of the final approval hearing.

D. Conditional Certification of Class

Plaintiffs request that the putative classes be conditionally certified for purposes of the settlement. Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .” As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.)

The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. (Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, internal quotation marks, ellipses, and citations omitted.)

Plaintiffs state that there are approximately 12,765 class members (11,560 in the Security Check Class and 2,199 in the Ryder Rest Period Class). Class members can be ascertained from Defendants’ records. There are common questions regarding whether class members were subjected to common practices that violated wage and hour laws. No issue has been raised regarding the typicality or adequacy of Plaintiffs as class representatives. In sum, the court finds that the proposed classes should be conditionally certified.

E. Class Notice

The content of a class notice is subject to court approval. “If the court has certified the action as a class action, notice of the final approval hearing must be given to the class members in the manner specified by the court.” (Cal. Rules of Court, rule 3.769(f).)

The notice generally complies with the requirements for class notice. (See Settlement Agreement, Ex. 1.) It provides basic information about the settlement, including the settlement terms, and procedures to object or request exclusion.

However, the notice states that settlement administration costs are estimated to be $48,000. The updated amount provided by Plaintiffs is $49,000 and the notice should reflect that.

Additionally, the following language shall be added to the notice:

Due to the COVID-19 pandemic, hearings are currently being conducted remotely with the assistance of a third-party service provider, CourtCall. Class members who wish to appear at the final fairness hearing should contact class counsel to arrange a telephonic appearance through CourtCall, at least three days before the hearing if possible. Any CourtCall fees for an appearance by an objecting class member will be paid by class counsel.

IV. CONCLUSION

The motion for preliminary approval of the class action settlement is GRANTED, subject to the modification to the notice. The final approval hearing is set for September 29, 2021, at 1:30 p.m. The case management conference set for May 26, 2021 is vacated.

The court will prepare the final order if this tentative ruling is not contested.

NOTICE: Pursuant to the Judicial Council’s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely until further notice. Please see the General Order re: COVID-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10. If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing should contact CourtCall.

Public access to telephonic hearings is available on a listen-only line by calling 866-434-5269 (access code 6433515).

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing or listening in on a public access line.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|DAVID CHAI, individually and on behalf of all others similarly situated, |Case No. 20CV373916 |

| | |

|Plaintiff, |TENTATIVE RULING RE: MOTION TO BE RELIEVED AS COUNSEL |

| | |

|vs. | |

| | |

|VELOCITY INVESTMENTS, LLC, a New Jersey limited liability company; | |

|VELOCITY PORTFOLIO GROUP, INC., a Delaware corporation; and DOES 1 through| |

|10, inclusive, | |

| | |

|Defendants. | |

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on May 26, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

Plaintiff David Chai (“Plaintiff”) brings this putative consumer class action pursuant to the California Fair Debt Buying Practices Act against defendants Velocity Investments, LLC and Velocity Portfolio Group, Inc. (collectively, “Defendants”). Attorneys Justin Penn and Shalini Bhasker of Hinshaw & Culbertson, LLP (collectively, the “Moving Parties”), counsel for Defendants, move to withdraw as counsel of record.

II. DISCUSSION

California Rules of Court, rule 3.1362 sets forth the procedure for moving to be relieved as counsel. The Moving Parties have complied with rule 3.1362. They state that Defendants have retained a different attorney, Timothy P. Johnson of Barron & Newburger, P.C., and that Johnson has already made an appearance in this case.

However, the court notes two issues. First, although the Moving Parties state in the declaration in support of the motion that Defendants have been served with copies of the motion papers, there is no proof of service on file that so states. The proof of service with the moving papers only shows service on Plaintiff.

Second, although the Moving Parties state that Mr. Johnson has made an appearance for Defendants, the court file does not support this. The only record of an appearance is the minute order from March 24, 2021, and that order does not reflect that Mr. Johnson appeared on behalf of Defendants. No substitution of counsel has been filed with the court.

Thus, on this record, the motion would have to be denied. The Moving Parties are ordered to appear at the hearing to advise the court that they will withdraw the motion due to the service issue and file a substitution of attorney to clarify Mr. Johnson’s status, or to identify a different procedural solution. Unless the Moving Parties appear, the motion will be denied.

The court will prepare the final order.

NOTICE: Pursuant to the Judicial Council’s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely until further notice. Please see the General Order re: COVID-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10. If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing should contact CourtCall.

Public access to telephonic hearings is available on a listen-only line by calling 866-434-5269 (access code 6433515).

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing or listening in on a public access line.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

|Coordination Proceeding Special Title (Rule 3.550) |JUDICIAL COUNCIL COORDINATION PROCEEDING NO. 5173 |

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| |TENTATIVE RULING RE: PETITION FOR COORDINATION |

|ALLIANCE RESIDENTIAL WAGE AND HOUR CASES | |

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The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas on May 26, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as follows:

I. INTRODUCTION

Defendant Alliance Residential, LLC (“Defendant”) has filed a petition for coordination. The petition for coordination also requests a stay order but, on April 26, Defendant filed a request to withdraw the application for a stay order. Defendant seeks to have the following two cases coordinated:

1) Montano v. Alliance Residential, LLC, Superior Court of California, County of Riverside, Case No. RIC2002097 (“Montano”); and

2) Attaway v. Alliance Residential, LLC, Superior Court of California, County of Santa Clara, Case No. 20CV365134, (“Attaway”).

The petition is unopposed.

II. PETITION FOR COORDINATION

A. Legal Standard

When civil actions sharing a common question of fact or law are pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council, by the presiding judge of any such court, or by any party to one of the actions after obtaining permission from the presiding judge, or by all of the parties plaintiff or defendant in any such action. A petition for coordination, or a motion for permission to submit a petition, shall be supported by a declaration stating facts showing that the actions are complex, as defined by the Judicial Council and that the actions meet the standards specified in Section 404.1. On receipt of a petition for coordination, the Chairperson of the Judicial Council may assign a judge to determine whether the actions are complex, and if so, whether coordination of the actions is appropriate, or the Chairperson of the Judicial Council may authorize the presiding judge of a court to assign the matter to judicial officers of the court to make the determination in the same manner as assignments are made in other civil cases.

(Code Civ. Proc., § 404.)

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.

(Code Civ. Proc., § 404.1.)

B. Discussion

Defendant contends that these cases should be coordinated because both lawsuits seek the same relief on behalf of the same alleged aggrieved employees in California. Defendant asserts that both actions are in the early stages of litigation and no discovery has taken place in either case. Both cases have been deemed complex.

Montano includes a single cause of action for civil penalties under the Private Attorneys General Act (“PAGA”). The PAGA claim is based on allegedly deficient wage statements.

Attaway sets forth the following causes of action: (1) Failure to Pay All Overtime Wages; (2) Rest Period Violations; (3) Failure to Indemnify All Necessary Business Expenditures; (4) Wage Statement Violations; (5) Waiting Time Penalties; (6) Unfair Competition; and (7) Civil Penalties Under the Private Attorneys General Act.

The claims in Attaway are broadER than those in Montano, but Attaway also includes wage statement claims like Montano. Therefore, there is overlap between the cases. Additionally, the defendant in both cases is the same. As asserted by Defendant, both lawsuits are in the early stages of litigation and no discovery has taken place in either case. Coordination of the cases could aid in settlement negotiation and would help prevent conflicting rulings. There are sufficient similarities between the cases such that coordination will add to judicial efficiency and aid in their resolution. Therefore, the cases should be coordinated.

Accordingly, the petition for coordination is GRANTED, with Santa Clara County Superior Court as the court to hear the coordinated actions. The Sixth Appellate District of the Court of Appeal is designated as the reviewing court having appellate jurisdiction.

The court will prepare the final order if this tentative ruling is not contested.

NOTICE: Pursuant to the Judicial Council’s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely until further notice. Please see the General Order re: COVID-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10. If a party gives notice that a tentative ruling will be contested, any party seeking to participate in the hearing should contact CourtCall.

Public access to telephonic hearings is available on a listen-only line by calling 866-434-5269 (access code 6433515).

State and local rules prohibit recording of court proceedings without a court order. These rules apply while in court and also while participating in a telephonic hearing or listening in on a public access line.

The court does not provide court reporters for proceedings in the complex civil litigation departments. Any party wishing to retain a court reporter to report a hearing may do so in compliance with this court’s October 13, 2020 Policy Regarding Privately Retained Court Reporters. The court reporter will participate remotely and will not be present in the courtroom.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

| |Case No. |

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The Court will prepare the order.

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

| |Case No. |

| | |

The Court will prepare the order.

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