Ashby VS Metro One Loss Prevention Services Group (West Coast)

ISSUE #2 – RELEASE OF LWDA’S CLAIMS BY PLAINTIFF UNDER PAGA.

Under the PAGA, a private plaintiff brings an action as proxy or agent of the LWDA. “An employee plaintiff suing ... under the [PAGA] does so as the proxy or agent of the state's labor law enforcement agencies.” (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 81; ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175, 185; Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 381; Adolph v. Uber Technologies (2023) 14 RG19009838: Ashby VS Metro One Loss Prevention Services Group (West Coas 06/02/2026 Hearing on Motion - Other Preliminary Approval of Class Action Settlement; filed by Rochelle Ashby (Plaintiff) CRS# 515742111997 in Department 21 Cal.5th 1104, 1116.)

Every PAGA action is “a dispute between an employer and the state.” Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 386; LaFace v. Ralphs Grocery Co. (2022) 75 Cal.App.5th 388, 397; Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 74.)

The named plaintiff may release the claims of the LWDA. The named plaintiff as proxy and agent of the LWDA’s claims is releasing the LWDA’s claims. The claims of the LWDA are the claims of the LWDA. The agreement does not state that “Aggrieved Employees” are releasing PAGA claims. Only persons who have exhausted the PAGA notice procedure and are authorized to represent the LWDA can release claims on behalf of the LWDA. (Agt para 5.3) This is adequate.

The scope of the LWDA’s release is limited to the scope of the PAGA notice letter. (LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1192-1196.) The Agreement suggests that the LWDA is releasing claims “based on the facts stated in the Operative Complaint.” That PAGA release is overbroad and is not permitted by law. (Agt para 5.3) This is not adequate.

ISSUE #3 - RELEASE OF LWDA’S CLAIMS BY “AGGRIEVED EMPLOYEES”

The named plaintiff does not represent the aggrieved employees in the claims under PAGA and therefore cannot release PAGA claims on their behalf. Some settlements suggest that under the terms of the settlement the aggrieved employees are releasing the claims that they might assert as agents of the LWDA under the PAGA. That would be contrary to California law.

The harm of a misstatement that the plaintiff represents the aggrieved employees is twofold. First, the court is not inclined to approve agreements that are contrary to law. Second, as noted above, there have been many appellate decisions addressing and re-addressing the law that a PAGA claim is on behalf of the state and is not on behalf of the employees. The court is not inclined to perpetuate any confusion by approving a settlement that inaccurately states that a PAGA plaintiff represents the aggrieved employees.

Defendant can assert the settlement as a defense to any future claims for penalties brought by the LWDA or any claims brought on behalf of the LWDA under PAGA. A PAGA settlement on behalf of the LWDA might preclude the LWDA from asserting the same claim for a second time. Any such defense would exist because the LWDA is bound by the terms of the settlement agreement. This is similar to the situation where a District Attorney recovers restitution on behalf of a victim of a crime. (Penal Code 1202.4(f)(3), (i).)

The District Attorney does not represent the victim. (People v. Seumanu (2015) 61 Cal.4th 1293, 1344-1345; People v. Eubanks (1996) 14 Cal.4th 580, 589-590.) A settlement by the District Attorney of the claims of The People is not a settlement of the potential civil claims of the victims. (Vigilant Ins. Co. v. Chiu (2009) 175 Cal.App.4th 438, 442-443.) If the victim files a civil case against the defendant, then the defendant can assert that any victim compensation payment in the criminal case is an offset in

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19009838: Ashby VS Metro One Loss Prevention Services Group (West Coas 06/02/2026 Hearing on Motion - Other Preliminary Approval of Class Action Settlement; filed by Rochelle Ashby (Plaintiff) CRS# 515742111997 in Department 21 the civil case. (Penal Code 1202.4(j).)

The court notes that although it is legally significant that that a claim under the PAGA is on behalf of the LWDA, that issue has no practical effect in the context of a settlement. If any aggrieved employee were to assert a subsequent claim on behalf of the LWDA then the employer could assert the settlement agreement as a defense to the LWDA’s claims. If the LWDA’s claims have been released, then it is immaterial whether the settlement agreement states (correctly) that LWDA has released its claims or states (incorrectly) that other employees cannot assert claims on behalf of the LWDA.

The agreement does not state that “Aggrieved Employees” are releasing PAGA claims. (Agt para 5.3) The Agreement is clear that the named plaintiff as proxy and agent of the LWDA releases the LWDA’s claims. The members of the class or the Aggrieved Employees do not release the LWDA’s claims. This is adequate.

ISSUE #4 - RELEASE OF CLAIMS BY MEMBERS OF THE CLASS.

The members of the class release claims arising out of the claims in the complaint where the named plaintiffs are typical and can adequately represent the class. (Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 537-538.) The Class Members are not releasing the claims of the LWDA. (Agt para 5.2) This is adequate.

ISSUE #5. RESIDUAL BENEFICIARY

The agreement identifies the California State Bar’s Justice Gap Fund as the residual beneficiary. This is consistent with CCP 384. This is a State Bar funds, so Counsel does not need a declaration with the CCP 382.4 information. (Agt 4.4.3) This is adequate.

ISSUE #6. NUMBER OF DAYS TO CASH CHECKS / SECOND DISTRIBUTION

The agreement states that the check cashing period is 180 days. (Agt 4.4.1.) The court finds that 120 days is an adequate time for absent class members to cash the checks. That permits counsel and the court to more quickly determine whether a second distribution to the persons who cashed the first checks is appropriate. This is not adequate.

ISSUE #7 TIMING OF FUNDING THE SETTLEMENT AND DISTRIBUTION OF THE FUNDS

The agreement states that defendant will fund the settlement of $3,200,000 in installments. Agt para 4.3 states: (1) [or or about] December 1, 2026 Defendant shall deposit $950,000, (2) the remaining $2,250,000 shall be deposited in equal monthly installments of $75,000 (plus employer payroll taxes) over 30 months, starting 30 calendar days after the initial deposit.” (Agt para 4.3)

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19009838: Ashby VS Metro One Loss Prevention Services Group (West Coas 06/02/2026 Hearing on Motion - Other Preliminary Approval of Class Action Settlement; filed by Rochelle Ashby (Plaintiff) CRS# 515742111997 in Department 21

The agreement generally states that funds will be distributed on a pro rata basis among the class, counsel, and other expenses in three stages: (1) $950,000 with the initial funding: (2) on a pro rata basis 15 months later with the funding to date (estd $1,125,000), and (3) after the final payment ($1,125,000).

The court is concerned that the complete payments to the absent class members will be delayed by approximately three years. This is not adequate.

The court suggests revisions to address those concerns. The court’s suggestions include no change in the total settlement amount and no change in the installment plan. The distribution of the settlement funds is an internal class matter that would not affect the defendant. (In re Cipro Cases I & II (2004) 121 Cal. App. 4th 402, 417 [“The allocation of the total sum of damages among the individual class members “ ‘is an internal accounting question that does not directly concern the defendant.”].)

The court would be inclined to approve something similar to the following plan.

After the initial funding of $950,000, the claims administrator distributes all funds in the initial funding to the class members and aggrieved employees, with a deduction for administrative expenses. After 15 months with the funding to date (estd $1,125,000), the administrator makes a second distribution of funds due to the class members and aggrieved employees and any residual from the first distribution to the persons who cashed their first checks. The second distribution can be to the persons who cashed their first checks because a person who did not receive or cash their first check would not likely receive or cash their second check.

The second distribution can include funds for administration, the named plaintiffs, litigation costs, and other matters after all the funds payable to the absent class member have been distributed. After the second distribution, all the funds due to the class members and aggrieved employees will have been distributed.

After the second distribution, the claims administrator can distribute appropriate funds to named plaintiff, the LWDA, and to the attorneys on a monthly basis as the settlement is funded.

This schedule will permit the immediate distribution to the members of the class with funds from the initial funding. This schedule will permit a second distribution with funds from 15 months of installments. This will get more of the settlement funds to the class members more quickly.

The court’s PRE-TENTATIVE order is as follows:

The motion of plaintiffs for preliminary approval of class action settlement is __________.

The complaint alleges various Labor Code claims.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19009838: Ashby VS Metro One Loss Prevention Services Group (West Coas 06/02/2026 Hearing on Motion - Other Preliminary Approval of Class Action Settlement; filed by Rochelle Ashby (Plaintiff) CRS# 515742111997 in Department 21

The case preliminarily settled for a total of $3,300,000. The settlement agreement states there will be attorneys' fees of up to $1,066,666.67 (33%), costs of up to $90,000, Service Payment of $10,000 to each Plaintiff, settlement administration costs of up to $50,000, and a PAGA payment of $100,000 ($75,000 to the LWDA). After these expenses, the amount available to be distributed to the Class would be $1,838,333.33. There are an estimated 5,900 Class Members. The average recovery for each class member would be $311.

The motion makes an adequate analysis as required by Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116.

The proposed class notice form and procedure are adequate. [TO BE AMENDED IF SETTLEMENT TERMS ARE CHANGED]

The proposed class is appropriate for class certification. The scope of the named plaintiff release is appropriate. The agreement for the named plaintiff may include a Civil Code 1542 waiver. The scope of the LWDA’s release for claims asserted under the PAGA is [NOT] appropriate. The PAGA release does not release claims by the aggrieved employees. The scope of the LWDA’s release is [NOT] limited to the scope of the PAGA notice letter. (LaCour v. Marshalls of California, LLC (2023) 94 Cal.App.5th 1172, 1192-1196.)

The scope of the class release is appropriate. The scope of the class release is limited to the claims arising out of the claims in the complaint where the named plaintiffs are typical and can adequately represent the class. (Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 537-538.) The scope of the class release does not include a release of the LWDA’s claims. The Court notes and approves of the plan to distribute the settlement funds with no claims process.

The Court does [NOT] approve of the installment plan of funding and the related plan to distribute the settlement funds to class members.

The unclaimed funds will be distributed to Justice Gap Fund. This is consistent with CCP 384. Counsel is not required to provide a declaration in support of the motion that provides the information required by CCP 382.4.

The Court will not approve the amount of attorneys' fees and costs until the final approval hearing. The Court cannot award attorneys' fees without reviewing information about counsel's hourly rate and the time spent on the case. This is the law even if the parties have agreed that Defendants will not oppose the motion for fees. (Robbins v. Alibrandi (2005) 127 Cal. App. 4th 438, 450-451.)

"Because absent class members are not directly involved in the proceedings, oversight to ensure

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19009838: Ashby VS Metro One Loss Prevention Services Group (West Coas 06/02/2026 Hearing on Motion - Other Preliminary Approval of Class Action Settlement; filed by Rochelle Ashby (Plaintiff) CRS# 515742111997 in Department 21 settlements are fair and untainted by conflict is the responsibility of both the class representative and the court." (Mark v. Spencer (2008) 166 Cal.App.4th 219, 227.)

"[T]horough judicial review of fee applications is required in all class action settlements and the fairness of the fees must be assessed independently of determining the fairness of the substantive settlement terms.” (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 555-556.)

The court sets out its standard analysis below. Counsel may address that analysis in the fee application.

The Ninth Circuit’s benchmark is 25%. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 495.)

This court's benchmark for fees is 30% of the total fund. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 495; Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1175; Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 557 fn 13; Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66 fn 11.) The court recently reviewed and reaffirmed its use of a benchmark of 30%. (Hurtubise v. Sutter East Bay Hosp. (2021) 2021 WL 11134912.)

The court will consider a percentage of recovery above 30% because counsel will be waiting until the second and third installments of the funding.

When cross-checking with the lodestar/multiplier, the court will evaluate the lodestar based on reasonable fees that would have been charged at hourly rates and then apply a multiplier. The multiplier includes contingent fee risk and other factors.

When considering risk, the court considers there is less risk in a case with fee shifting statutes because counsel's potential fees are not limited by and coupled to the monetary recovery. "The law does not mandate ... that attorney fees bear a percentage relationship to the ultimate recovery of damages in a civil rights case." (Harman v. City and County of San Francisco (2007) 158 Cal.App.4th 407, 419.) (See also Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 1006-1007.)

The Court will not decide the amount of any service award until the final approval hearing. Plaintiff must provide evidence regarding the nature of his participation in the action, including a description of his specific actions and the amount of time he committed to the prosecution of the case. (Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 804-807.) The court's standard service award is $10,000.

The Court ORDERS that the final approval hearing is set for ____________.

The Court ORDERS that funds not be distributed to the cy pres beneficiary until after Court approval of a final accounting.

SUPERIOR COURT OF CALIFORNIA COUNTY OF ALAMEDA

RG19009838: Ashby VS Metro One Loss Prevention Services Group (West Coas 06/02/2026 Hearing on Motion - Other Preliminary Approval of Class Action Settlement; filed by Rochelle Ashby (Plaintiff) CRS# 515742111997 in Department 21

The Court ORDERS that 10% of any fee award not be distributed to counsel until the completion of the distribution process and Court approval of a final accounting.

The Court will set a compliance hearing after the completion of the distribution process and the expiration of the time to cash checks for counsel for plaintiff and the Administrator to comply with CCP 384(b) and to submit a summary accounting how the funds have been distributed to the class members and the status of any unresolved issues. If the distribution is completed, the Court will at that time order distribution of the cy pres funds and release any hold-back of attorney fees.

The court ORDERS that at the time of the final accounting that counsel for plaintiff transmit a copy of this order and the final judgment and the final accounting to the Judicial Council. (CCP 384.5; Govt Code 68520.)

The court will sign the proposed order, which is modified by this order. Plaintiff must reserve a hearing for the motion for final approval.

PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by 04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify opposing counsel directly and the court at the eCourt portal found on the court’s website: www.alameda.courts.ca.gov.

If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,” please use the following link to access your hearing at the appropriate date and time: https://alameda-courts-ca-gov.zoomgov.com/my/department21. If no party has contested the tentative ruling, then no appearance is necessary.