Dept. CX105

#

Case Name & No.

Tentative Ruling

1

Palomino vs. Zara USA, Inc.

2018-00992682

The tentative ruling is to continue the hearing on plaintiffs’ Motion for Final Approval of Class Action Settlement and Motion for Award of Attorneys’ Fees, Costs and Service Awards to January 13, 2023 at 10:00 a.m.  Counsel must file supplemental papers addressing the court’s concerns (not fully revised papers that would have to be re-read) at least 16 days before the next hearing date.

During the preliminary approval stage, plaintiffs’ counsel represented that there were 7,844 class members, but only 6,964 class members were provided with the class notice.  Plaintiffs have not provided any explanation for this discrepancy.

The opt out request of one putative class member was rejected because it omitted the last four digits of the person’s Social Security number, and the follow-up request was ignored.  Counsel must explain why this omission would be a legitimate basis for rejecting the opt-out request.

The parties provided an estimate of the highest and average class settlement payments, but failed to provide an estimate of the lowest class settlement payment.

Two of plaintiffs’ law firms, Bradley Grombacher, LLP and The Bainer Law Firm, have failed to provide their attorneys’ bills or a detailed hourly breakdown of their attorneys’ hours to support the court’s review of the attorneys’ fees request.  The summary chart in ¶24 of the Bradley Declaration and ¶4 of the Bainer Declaration are insufficient to support a lodestar cross-check of the fee request, which the court requires in its discretion.  A detailed hourly breakdown of all of plaintiffs’ attorneys’ hours is required.

The total litigation costs supported by invoices provided by plaintiffs’ three law firms are $22,351.68, but the settlement administrator’s declaration states that the litigation costs of $22,486.87 shall be deducted from the gross settlement amount.  There is no explanation for this discrepancy.

There is no invoice to support the settlement administrator’s fee request of $32,999.00.

Plaintiffs should propose a Final Report Hearing date, taking into account the time deadlines associated with funding the settlement, mailing distributions, allowing the check-cashing deadline to pass, and depositing uncashed check funds pursuant to the terms of the settlement agreement.  The court usually sets these hearings nine months after settlement approval if the check cashing deadline is 180 days.  The parties must report to the court the total amount that was actually paid to the class members.  All supporting papers must be filed at least 16 days before the Final Report Hearing date.

Plaintiffs are ordered to give notice of the ruling to defendant unless such notice is waived.

2

Bingham vs. Acorns Grow, Inc.

2019-01050842

Plaintiff’s Motion for Final Approval of Class Action Settlement, Award of Attorneys’ Fees and Costs, and Approval of Class Representative Service Award is granted, except that the court approves plaintiff’s attorneys’ fees only in the amount of $875,000.  The court concludes that a reasonable attorney fee in this case is 35% of the gross settlement amount.  Counsel is entitled to an increase over the customary 33 1/3% due to the large number of motions this case generated.  However, the court does not believe that counsel is entitled to the requested 38%.  The court notes that the class members had their average per-person recovery reduced due to the number of class member accounts increasing by about 20%, from about 182,000 when the case was settled to about 219,000 on final approval, without any corresponding increase in the gross settlement amount.

The court concludes that the $2,500,000 class action settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards:

• $875,000.00 to plaintiff’s counsel for plaintiff’s attorneys’ fees, equally split between Lynch Carpenter, LLP and Kaliel Gold PLLC, reduced from the $950,000.00 requested;

• $72,000.00 to plaintiff’s counsel for plaintiff’s attorney costs, as requested;

• $5,000.00 to plaintiff Josh Bingham as an enhancement award, as requested; and

• $70,000.00 to the Administrator, KCC Class Action Services, LLC, as requested.

The total amount that will be payable to all class members if they are paid the amount to which they are entitled pursuant to the judgment is $1,478,000.00.

The court sets a Final Report Hearing for June 30, 2023 at 10:00 a.m., to confirm that distribution efforts are fully completed, including the distribution of uncashed class member checks to the Rose Foundation’s Financial Literacy Education Fund after 180 days, that the Administrator’s work is complete, and that the court’s file thus may be closed.  The parties must report to the court the total amount that was actually paid to the class members.  All supporting papers must be filed at least 16 days before the Final Report Hearing date.

Plaintiff is ordered to give notice of the ruling unless notice is waived.

3

George vs. Main Electric Supply Co., LLC

2021-01220136

Plaintiff’s Motion for Approval of PAGA Settlement and Award of Attorneys’ Fees and Costs, Incentive Award, and Settlement Administration Costs is granted, except that the court approves plaintiff’s attorneys’ fees only in the amount of $67,500, approves plaintiff’s enhancement award only in the amount of $3,000, and requires that the cover letter to be sent to the aggrieved employees with their penalty checks (1) correct the case number at the top of the letter from 012201360 to 01220136, and (2) delete the reference to Industrial Wage Order 2-2001, which was not mentioned in the Complaint or the PAGA notice to the LWDA.

The court concludes that a reasonable attorney fee in this case is 30% of the gross settlement amount.  This case settled at mediation only about five months after it was filed, requiring a relatively small amount of work on the case, and the average recovery by the aggrieved employees is only about $82 per person.  The court also concludes that a reasonable enhancement award in this case is only $3,000, due to the small average recovery by the aggrieved employees, and the small amount of effort that plaintiff needed to spend on this quickly-settled case.

The court concludes that the $225,000 PAGA settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards:

• $67,500.00 to plaintiff’s counsel for plaintiff’s attorneys’ fees, reduced from the $75,000 requested;

• $13,797.48 to plaintiff’s counsel for plaintiff’s attorney costs, as requested;

• $3,000.00 to plaintiff Jose Luis Parada George as an enhancement award, reduced from the $7,500 requested;

• $4,400.00 to the Administrator, Simpluris, Inc., as requested;

• $102,226.89, which is 75% of the net settlement amount of $136,302.52, to the LWDA as its share of PAGA penalties; and

• $34,075.63, which is 25% of the net settlement amount of $136,302.52, to the aggrieved employees as their share of PAGA penalties.

The court sets a Final Report Hearing for April 28, 2023 at 10:00 a.m., to confirm that distribution efforts are fully completed, including the distribution of uncashed aggrieved employee checks after 120 days, that the Administrator’s work is complete, and that the court’s file thus may be closed.  The parties must report to the court the total amount that was actually paid to the aggrieved employees.  All supporting papers must be filed at least 16 days before the Final Report Hearing date.

Plaintiff is ordered to give notice of the ruling to the LWDA and to defendant.

4

Collins vs. Canus Corporation

2018-01019194

Plaintiff’s Motion for Preliminary Approval of Class Action Settlement is granted.

A Final Approval Hearing is set for March 3, 2023 at 10:00 a.m.  All papers in support of the Final Approval Hearing, including detailed hourly breakdowns of plaintiff’s attorneys to support a lodestar cross-check, detailed plaintiff attorney cost breakdowns, an Administrator declaration and invoice, and plaintiff’s declaration to support the enhancement request, must be filed at least 16 calendar days before the Final Approval Hearing date, to provide enough time for court review, and must be served in compliance with CCP notice of motion requirements.

Plaintiff is ordered to give notice of the ruling unless notice is waived.

5

Trujillo vs. C & C North America, Inc.

2019-01050427

Plaintiff’s Motion for Final Approval of Class Action Settlement, Attorneys’ Fees, Costs and Enhancement is granted, except that the court approves plaintiff’s attorneys’ fees only in the amount of $73,000, and approves plaintiff’s attorney costs only in the amount of $12,569.39, the amount backed up with support in the moving papers.  The court concludes that a reasonable attorney fee in this case is 25% of the gross settlement amount.  The number of class members increased by 40% after the case was settled, from 85 to 119, and although the gross settlement amount was increased by $12,000 and plaintiff’s counsel agreed to reduce their fee request by $12,000, the average per person recovery still has been substantially reduced by virtue of the large increase in the number of class members.  Moreover, counsel’s lodestar fees are only about $47,000, and a $73,000 fee award still results in a generous multiplier of about 1.55.

The court concludes that the $292,000 class action and PAGA settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards:

• $73,000 to plaintiff’s counsel for plaintiff’s attorneys’ fees, reduced from the $81,333.33 requested;

• $12,569.39 to plaintiff’s counsel for plaintiff’s attorney costs, reduced from the $12,646.35 requested;

• $5,000.00 to plaintiff Rudy Trujillo as an enhancement award, as requested;

• $6,000.00 to the Administrator, Phoenix Settlement Administrators, as requested; and

• $1,750.00 to the LWDA as its share of PAGA penalties, as requested.

The total amount that will be payable to all class members and aggrieved employees if they are paid the amount to which they are entitled pursuant to the judgment is $193,680.61.

The court sets a Final Report Hearing for June 30, 2023 at 10:00 a.m., to confirm that distribution efforts are fully completed, including the distribution of uncashed class member checks to the State Controller’s Office Unclaimed Property Fund in the names of the applicable payees after 180 days, that the Administrator’s work is complete, and that the court’s file thus may be closed.  The parties must report to the court the total amount that was actually paid to the class members.  All supporting papers must be filed at least 16 days before the Final Report Hearing date.

Plaintiff is ordered to give notice of the ruling to the LWDA and to defendant.

6

Amaro vs. Anaheim Arena Management, LLC

2017-00917542

Plaintiff-Intervenor Rhiannon Aller’s Motion for Attorneys’ Fees and Costs is granted.  The court awards Intervenor Rhiannon Aller $168,093.33 as reasonable attorneys’ fees and $26,373.10 as costs of suit against defendant Anaheim Arena Management, LLC.  Aller’s first Request for Judicial Notice is granted.  Aller’s second Request for Judicial Notice is denied as untimely.

The court concludes that Aller has established all the required criteria of CCP §1021.5, the private attorney general doctrine.  Aller’s efforts resulted in the enforcement of an important right affecting the public interest, a significant benefit was conferred on a large class of persons, the necessity and financial burden of private enforcement were such as to make the award appropriate, and such fees and costs should not in the interest of justice be paid out of the recovery by the class.

The gross settlement amount in this case increased from $1,750,000 to $2,254,280 only after Aller intervened and opposed the original settlement amount.  Since motions for settlement approval are routinely granted without the gross settlement amount increasing, this court can only conclude that the increase, in both the gross settlement amount and the number of class members (from 5130 to 6040) was due to Aller’s opposition to the original settlement.  Plaintiff Amaro did not ask for any increase in attorneys’ fees due to the higher gross settlement amount, and was awarded 1/3 of the original settlement amount of $1,750,000.  Since Aller’s efforts resulted in a higher gross settlement amount of $504,280, the court in its discretion concludes that 1/3 of that increment is a reasonable attorney fee.  Aller asks for over $1.4 million in fees, but this court believes it would be absurd to award fees in a greater amount than those that would be awarded if Aller was the one who was the settling plaintiff.  Aller also has shown that she incurred class-related costs of $26,373.10, which are normally recovered as part of class action settlements, making the award appropriate in the court’s view.

The elements of CCP §1021.5 are satisfied because 6040 class members (and even the 910 new class members) constitute a large class of persons.  (Doing the math shows that the increase in the GSA by $504,280 while adding 910 class members works out to an average of about $554 per person.  Since the final average recovery was only about $250 per person, the new settlement money caused the original settlement class members’ average payments to increase.)  In addition, the necessity and financial burden of pursuing wage and hour violations by class or PAGA actions rather than by individual actions is apparent, and the interests of justice require that the class members not be approached to pay the fee award, which also as a practical matter would be expensive and virtually unworkable.  Rather, the interests of justice require that defendant pay for these fees and costs.  Defendant settled a lawsuit filed in 2017 rather than one filed in 2014.  This court is well aware that multiple class and PAGA actions sometimes get filed against the same defendant, and that sometimes staying the later-filed cases is appropriate.  If a defendant wants to settle with the lowest bidder, who is the plaintiff in a later-filed case, they have every right to, but defendant assumes the risk of an objection that could result in defendant having to pay a higher settlement amount, which is exactly what happened here.  Defendant must pay the statutorily-authorized price for choosing to settle with the party and on the terms that it did.

Aller is ordered to give notice of the ruling unless notice is waived.

7

Carlson vs. Mikles 2012 Irrevocable Trust

2021-01180402

Defendant CalPrivate Bank’s Demurrer to Third Amended Complaint is sustained without leave to amend.  Defendants Mikles 2012 Irrevocable Trust dated March 14, 2012, Phil Davis, Alan Line, PIMRAX-2016 Series A, LLC, Kingfisher Trust (incorrectly named Kingfisher Island Trust), Kingfisher Island, Inc., Kingfisher Hangar 18, LLC, Kingfisher Mistral, LLC, Kingfisher Holdings, LLC, Sovereign Capital Management Holdings, LLC, SCMG Liquidation, LLC, Infinity Urban Century, LLC, and ARPT Property Fund, Inc.’s Demurrer to Third Amended Complaint is sustained without leave to amend.

All four of the Requests for Judicial Notice are granted.  However, while courts may take judicial notice of public records and their dates, parties and legally operative language, they do not accept the truth of matters stated in those documents.  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264-65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375.

Plaintiff has failed to amend the Second Amended Complaint’s substantive allegations despite two previous rulings sustaining the demurrers to plaintiff’s First Amended Complaint and Second Amended Complaint with leave to amend.  The issues of failure to state causes of action due to vague or conclusory allegations, failure to join a necessary party, and statutes of limitations are left unaddressed.  Plaintiff seeks leave to file a First Consolidated Class Action Complaint in the Carlson v. Hunt case, but that is a separate case that due process prevents from being addressed here.  Plaintiff has failed to cure the issues in this action despite multiple opportunities to do so, and so the court must sustain these demurrers without further leave to amend.

The court previously ruled that plaintiff has improperly split his causes of action between two cases because there were overlapping allegations between this action and the complaint in Carlson v. Hunt, OCSC Case No. 30-2018-00982195, and noted, “Plaintiff should bring one lawsuit, not two, to seek redress for defendants’ alleged wrongful conduct in connection with a singular set of facts.”  The court noted that the overlapping allegations permeated the First through Fifth Causes of Action.  Yet plaintiff has not made any changes to the allegations in the First through Fifth Causes of Action to show that the claims in this case are distinct from the claims in the Carlson v. Hunt case, despite multiple opportunities to do so.  On this ground, the court sustains the Mikles Defendants’ Demurrer to the First through Fifth Causes of Action.

Plaintiff failed to add necessary party Todd A. Mikles to the First, Second, and Fourth Causes of Action.  As the court ruled previously, Todd A. Mikles is a necessary party since he is the transferor of the transfers that plaintiff seeks to set aside in the First, Second and Fourth Causes of Action.  CCP §389(a)(1)(i) (a party must be joined if “he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest”).  Since plaintiff has failed to cure this defect despite multiple opportunities to do so, the court sustains CalPrivate Bank and the Mikles Defendants’ demurrers to the First, Second and Fourth Causes of Action without leave to amend on this additional ground.

Plaintiff failed to allege any additional facts to show that his claims against CalPrivate Bank under the First, Second and Third Causes of Action are not time-barred by the applicable statute of limitations.  The statute of limitations that applies to plaintiff's fraudulent transfer claims is four years after the transfer, or one year after the transfer was or could have been discovered, but in no case longer than seven years.  Civil Code §3439.09.  Here, the transfers at issue concerning CalPrivate Bank took place in February 2014, November 2016 and December 2016.  However, this action was not filed until January 20, 2021.  Plaintiff has failed to amend the complaint to state any facts supporting any tolling or to show that the applicable statute of limitations is longer than four years.  On this additional ground, the court sustains CalPrivate Bank’s demurrer to the First, Second and Third Causes of Action without leave to amend.

The court previously ruled, “Plaintiff fails to allege sufficient facts, rather than vague, overbroad, conclusory allegations, that would amount to actionable conduct on the part of the Mikles Defendants or defendant CalPrivate Bank.”  Despite the opportunity to cure this defect, plaintiff made no substantive changes to the allegations in the Third Amended Complaint as to the Mikles Defendants or CalPrivate Bank.  On this additional ground, the court sustains CalPrivate Bank’s and the Mikles Defendants’ Demurrers to the First through Fifth Causes of Action without leave to amend.

The moving party defendants are ordered to give notice of the ruling unless notice is waived, and to submit proposed Orders of Dismissal.

8

Henkin vs. Mikles

2021-01186203

Defendants SCMG Liquidation, Inc. (f/k/a Sovereign Capital Management Group, Inc.), Infinity Urban Century, LLC, Todd Mikles and Etienne Locoh’s Motion for Summary Adjudication, as to their Thirteenth Affirmative Defense of Settlement and Release as against five of the plaintiffs, is denied.  Plaintiffs’ Request for Judicial Notice is granted.  However, while courts may take judicial notice of court filings and their dates, parties and legally operative language, they do not accept the truth of matters stated in those documents.  Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal. App. 4th 256, 264-65; Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal. App. 4th 1366, 1375.  The court declines to rule on plaintiffs’ evidentiary objections because the court does not deem such evidence material to its disposition of the motion under CCP §437c(q).

There are triable issues of fact as to whether plaintiffs agreed to the release, and as to whether the release applies to the breach of fiduciary duty claim asserted in this action.  The release was initialed only by defendant Mikles when he represented the buyer in the transaction, and not by plaintiffs, who were the sellers.  The released parties include the other party’s agents but do not include each party’s own agents, while in this case plaintiffs are suing their own agents and fiduciaries.  Further, the release concerns claims relating to the real property and its condition, which arguably does not include a breach of fiduciary duty claim based on the fiduciary’s alleged failure to disclose an appraisal prior to the sale of the property.

Defendants reference the wrong section of the Purchase Agreement and Escrow Instructions and misquote the relevant release language.  Section 11.1 of the purchase agreement states: “Buyer and any other entity that signs a signature page of this Agreement … hereby knowingly, unconditionally, voluntarily, fully and irrevocably grant this general release and releases, remises, and forever discharges each of the other party’s present and former agents, successors, heirs, devisees, members, officers, employees, managers, representatives, subsidiaries, affiliates, controlling persons and insurers, and their respective successors and assigns, and all persons acting by, through, under or in concert with any of them … of and from any and all liabilities, damages, claims … or causes of action of every nature, character or description, now accrued or which may hereafter accrued, without limitation of law, equity or otherwise, that related to the Property or its condition, based in whole or in part on any facts, conduct, activities, transactions, events or occurrences known or unknown … which have or allegedly have existed”.  There are two lines below for initials for the seller and the buyer.  However, it appears that Todd Mikles initialed both lines for the seller and the buyer in consenting to the release.  There are no initials by plaintiffs Griffith-Griffin Properties, LLC, Davis Family Enterprise LLC, Patricia Wunderlich, William Hoff Jr. or John Page, even though they are defined as the Sellers in this transaction.  Thus, there is a triable issue of fact as to whether these plaintiffs, or a person authorized to sign on their behalf, initialed this section agreeing to this release.  It is a contract formation requirement that a party’s assent be expressed to the other party.  Juen v. Alain Pinel Realtors, Inc. (2019) 32 Cal. App. 5th 972, 983.

There is also a triable issue as to whether plaintiffs released claims against their own agents, including Mikles, when the release discharges only claims against “each of the other party’s present and former agents”.  Plaintiffs further contend that the scope of the release is limited to claims that relate to “the Property or its condition”, which does not extend to claims for breach of fiduciary duty based on the failure to disclose an appraisal, the claim at issue here.

Finally, plaintiffs contend that the release was not obtained with full and frank disclosure of all material facts, because the $40,000,000 appraisal of the subject property was not disclosed before plaintiffs executed the purchase agreement.  “Assent to a release is not real and free when obtained through fraud, and the release may be avoided if the facts are sufficient to bring the case within the provisions of the Civil Code defining fraud.  Before there can be a waiver there must be full knowledge on the part of the party defrauded.”  Chung v. Johnston (1954) 128 Cal. App. 2d 157, 163.  Here, there are triable issues of fact as to whether defendants committed fraud by failing to disclose the appraisal to plaintiffs.  While defendants argue that the appraisal was immaterial to the purchase negotiations, that itself is a triable issue of fact.

Plaintiffs are ordered to give notice of the ruling unless notice is waived.

9

Burleigh vs. Brandman University

2020-01172801

Plaintiff’s Motion for Order Granting Preliminary Approval of Class Action Settlement is granted.

A Final Approval Hearing is set for January 27, 2023 at 10:00 a.m.  All papers in support of the Final Approval Hearing, including detailed hourly breakdowns of plaintiff’s attorneys to support a lodestar cross-check, detailed plaintiff attorney cost breakdowns, an Administrator declaration and invoice, and plaintiff’s declaration to support the enhancement request, must be filed at least 16 calendar days before the Final Approval Hearing date, to provide enough time for court review, and must be served in compliance with CCP notice of motion requirements.

Plaintiff is ordered to give notice of the ruling to the LWDA and to defendant.