Response ReplyCal. Super. - 6th Dist.March 18, 202010 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 200V365248 Santa Clara - Civil AEGIS LAW FIRM, PC Electronically Filed KASHIF HAQUE, State Bar No. 218672 by Superior Court of CA, SAMUEL A. WONG, State Bar No. 217104 County of Santa Clara, JESSICA L. CAMPBELL, State Bar No. 280626 on 11/9/2021 5:09 PM jcampbell@aegislawfirm.com REVieWGd By: R. Walker CAROLYN M. BELL, State Bar No. 313435 Case #20CV365248 cbell@aegislawfirm.com Envelope: 7636704 9811 Irvine Center Drive, Suite 100 Irvine, California 92618 Telephone: (949) 379-6250 Facsimile: (949) 379-6251 Attorneys for Plaintiff Samuel Abrego, individually, and on behalf 0f all others similarly situated. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA SAMUEL ABREGO, individually and on Case N0. 20CV365248 behalf of all others similarly situated, ASSIGNED FOR ALL PURPOSES HON. Plaintiff, PATRICIA M. LUCAS, DEPARTMENT 3 VS. PLAINTIFF’S RESPONSE TO STERICYCLE, INC; and DOES 1 through INTERVENORS’ OBJECTION T0 CLASS 20, inclusive, ACTION AND PAGA SETTLEMENT Defendants Date: December 8, 2021 Time: 1:30 p.m. Dept: 3 PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. INTRODUCTION In response to the Class Notice that was mailed to all class members, Intervenors Johnny White and Raul Pichardo submitted the only objection t0 the Class and PAGA Settlement received to date. However, With few exceptions, Intervenors’ objection is identical to their Opposition to Plaintiff’s Motion for Preliminary Approval of Class Action Settlement. Thus, the Court has already ruled on these arguments by Intervenors when it granted Plaintiffs’ Motion for Preliminary Approval. The Court should reject the baseless objections raised by Intervenors again and grant final approval 0f the Settlement, which is fair, reasonable and adequate. II. ARGUMENT A. Plaintiff Abrego Has Been Deputized t0 Settle the Claims Covered by the Settlement Agreement Intervenors d0 not dispute that Plaintiff Abgreo submitted an amended PAGA letter t0 the LWDA 0n September 23, 2020 which identifies all claims covered by the settlement. Nor do Intervenors dispute that the 65-day period for the LWDA t0 take action expired without any response from the Agency. Rather, Intervenors’ sole contention with respect t0 the propriety of Plaintiff Abrego’s amended PAGA notice is that Plaintiff Abrego sent the amended notice after the parties entered into a settlement in principle 0n September 11, 2020. See, Obj. at 15:9-1 1. This argument fails for numerous reasons. The September 11, 2020 settlement in principle was contingent upon Plaintiff Abrego submitting an amended PAGA letter to the LWDA identifying all claims that were the subject of Plaintiff’s pre-mediation investigations, and the parties’ good faith and Vigorous settlement negotiations. Intervenors cite t0 n0 authority suggesting that it is impermissible t0 submit an amended PAGA letter providing notice 0f claims not set forth in an original PAGA letter (Intervenors have submitted multiple amended PAGA letters in this matter), or that it is impermissible t0 d0 so as part 0f the settlement approval process. Indeed, Intervenors fail t0 cite t0 any timing limitations whatsoever 0n When a plaintiff must give notice to the LWDA. -1- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 That is because the relevant provisions of PAGA speak only to the content of the notice t0 the LWDA, but do not impose any timing limitations on when a plaintiff must provide that notice. See Cal. Lab § 2699.3(a)(1)(A) (“The aggrieved employee or representative shall give written notice by online filing With the Labor and Workforce Development Agency and by certified mail t0 the employer of the specific provisions of this code alleged to have been violated, including the facts and theories t0 support the alleged violation”) Moreover, as Intervenors’ counsel is well aware, courts routinely authorize amended pleadings submitted as part of the approval process, and conforming to the settlement at issue. By providing notice to the LWDA on September 23, 2021, waiting the statutory 65- day LWDA-review period, and only then entering into a finalized Settlement Agreement, Plaintiff Abrego ensured that the LWDA had a full and complete opportunity t0 act, which it declined t0 d0. Had the LWDA responded t0 Plaintiff Abrego’s amended LWDA letter and indicated a desired t0 pursue 0r resolve the claims 0n its own behalf, the settlement would not have been consummated in its current form. Because the LWDA did not respond, Plaintiff Abrego was officially deputized to serve as a proxy for the LWDA, to settle all claims set forth in the September 23 letter. Intervenors also contend that Plaintiff Pichardo was never deputized t0 pursue claims that were not set forth in his letter t0 the LWDA, and that a Plaintiff may not piggyback 0n the PAGA claims in other cases. Intervenors completely miss the mark With this argument. Plaintiffs have never argued that Plaintiff Pichardo can resolve claims not set forth in his PAGA letter. Much the opposite - Plaintiffs have consistently argued that they are each authorized to pursue and resolve claims set forth in their respective PAGA letters. Plaintiff Pichardo was authorized t0 pursue and resolve the claims set forth in his letter, and Plaintiff Abrego was authorized t0 pursue and resolve the claims set forth in his three PAGA letters, including the one he submitted on September 23, 2021 which specifically identifies all claims covered by the Parties’ Settlement. B. Plaintiffs May Settle Claims Dating Back t0 September 24, 2018. -2- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs argue that neither Plaintiff Abrego nor Plaintiff Pichardo were deputized t0 pursue claims dating back more than one year from their respective PAGA letters. In this vein, Intervenors in essence seek t0 invoke the statute 0f limitations - an affirmative defense available only t0 defendants - as a bar t0 the Parties’ ability t0 settle claims that date back more than one year before the filing of their respective PAGA letters. Obj. at 13:29-1425 Again, Intervenors fail t0 provide any authority t0 support their contention that the LWDA deputizes employees t0 pursue claims only for specific time periods, 0r authority Which permits Intervenors t0 assert the statute of limitations separately from Defendant or regardless of Defendant’s intent to waive the defense. Conversely, in Plaintiffs’ approval motion, Plaintiffs cite t0 a number 0f binding and persuasive cases confirming that the statute of limitations is an affirmative defense that a defendant may waive, and that other California courts have permitted defendants t0 waive the statute 0f limitations as part 0f the settlement process in both PAGA and non-PAGA actions. Tellingly, Intervenors do not actually argue that a defendant cannot waive the statute of limitations. Rather, Intervenors only advance the unremarkable argument that regardless 0f a defendant’s intent to waive the statute of limitations, Plaintiffs are still required to satisfy the administrative exhaustion requirements set forth in Labor Code section 2699.3. Obj. at 14:9-12. Plaintiffs d0 not dispute this assertion. As noted above, Plaintiffs notified the LWDA of all 0f the claims at issue through their respective PAGA letters, the LWDA did not respond t0 any 0f Plaintiffs’ notices, and the State has therefore deputized Plaintiffs to pursue all 0f the claims included in their respective PAGA letters. Intervenors further argue the cases cited by Plaintiffs showing that other California courts that have allowed Defendants t0 waive the statute 0f limitation d0 not reflect binding authority. Obj. at 1426-12. This argument is false and disingenuous, and reflects an effort t0 distract the Court from the fact that Intervenors have failed to cite t0 any authority t0 support their position that a Defendant cannot waive the statute of limitations, or that Intervenors may somehow invoke the statute 0f limitations themselves. As noted above, Plaintiffs cite t0 -3- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 significant binding authority from non-PAGA cases confirming that Defendants may waive the statute of limitations, including decisions by both the United States Supreme Court and the California Supreme Court, Which Intervenors conspicuously failed to address.1 Rather, Intervenors focus on the Superior Court and Federal District Court cases Which rely on the aforementioned binding authorities in applying the same principles 0f waiver in PAGA cases. While not binding authority, Plaintiff provided those cases as illustrative, persuasive authority. Indeed, Intervenors’ feigned indignation falls flat in light of the numerous non- binding cases cited to in their objection. C. Plaintiff Pichardo’s Participation In The Settlement Is Appropriate. As reflected in the Declaration 0f Zachary Crosner in Support 0f the Motion for Preliminary Approval, Plaintiff Pichardo and his counsel fully evaluated the claims at issue; the facts 0f the case; the legal issues raised; and the probability 0f success. Following the settlement in principle reached between Plaintiff Abrego and Defendant, Plaintiff Pichardo met and conferred with Plaintiff Abrego’s counsel and with Defendant regarding the scope 0f the release and the value of the settlement. Armed With this information, Plaintiff Pichardo’s counsel determined that the settlement was fair, reasonable and adequate. Plaintiff Pichardo - as a second proxy for the LWDA - endorsed the settlement between the parties and agreed t0 participate. Because the claims and time period covered by Plaintiff Pichardo’s LWDA letter were already covered by Plaintiff Abrego’s LWDA letters along with Defendant’s 1 See John R. Sand & Gravel C0. v. United States, 552 U.S. 130, 133 (2008) (“[T]he law typically treats a limitations defense as an affirmative defense that the defendant must raise at the pleadings stage and that is subject t0 rules 0f forfeiture and waiver.”); Consumer Advocacy Grp., Inc. v. ExxonMobil Corp, 168 Cal. App. 4th 675, 687 (2008) (“the statute 0f limitationsfis] an affirmative defense which a defendant may opt t0 raise 0r waive”); Cowcm v. Superior Court, 14 Cal. 4th 367 (1996) (defendant in criminal case may waive the statute 0f limitations); People v. Williams (1999) 21 Cal. 4th 335, 338 (confirming the Cowan principle that a defendant may waive the statue of limitations); Bickel v. City ofPiedmont, 16 Cal. 4th 1040 (1997) (developers may waive the statutory time limitation during Which a public entity must act 0n a request for a development permit); Soltani v. W. & S. Life Ins. C0., 258 F.3d 1038, 1044 (9th Cir. 2001) (party may waive a plea 0f the statute 0f limitations as a defense). -4- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 waiver 0f the statutory limitations period, the parties did not assign any independent value to Plaintiff Pichardo’s claims. D. The Class Action Settlement Should Receive Final Approval. i. Amended Pleadings That Conform T0 The Terms Of The Settlement Are Entirely Appropriate. Intervenors weakly contend that the settlement is problematic because it includes claims that were not alleged in Plaintiffs’ initial complaints or PAGA notices. Obj. at 16:12- 14. As Intervenors are well aware, new facts and theories often come to light after the initial pleadings stage Which the parties are well Within their right t0 pursue. The fact that Plaintiff Abrego submitted an amended PAGA letter and an amended complaint after the parties reached a settlement in principle, and conforming to the claims investigated, negotiated and released, has n0 impact 0n the propriety of the settlement. Nor does an amended PAGA letter 0r an amended complaint reflect an attempt t0 “shoehorn” additional claims into a release at the “eleventh hour” as Intervenors contend. Obj. at 1127-10. As set forth in detail in the Declaration 0f Carolyn Bell in Support 0f Plaintiffs’ Motion for Preliminary Approval, Class Counsel conducted a full and thorough investigation of all claims and issues covered by the settlement, engaged an expert t0 provide detailed valuations, exchanged mediation briefs With Defendant, and was fully apprised of all material issues relating to the released claims. Armed with this information, Class Counsel engaged in Vigorous, arms-length negotiations over the course of multiple days before reaching a settlement in principle based 0n a mediator’s proposal. ii. Plaintiffs Appropriately Investigated, Evaluated and Valued All Claims At Issue; The Settlement Falls Within The “Reasonable Range” and is Fair, Reasonable and Adequate. Intervenors argue that the evidence Plaintiffs produced in support of the Motion for Preliminary Approval is insufficient t0 allow class members t0 know what the “true value” 0f their claims is, and further speculate that Plaintiffs have “suspiciously” assigned little value -5- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to certain claims, including failure t0 provide one day’s rest in second and failure t0 pay costs of medical exams. Obj. at 16:23-1727. This argument fails in light of Plaintiffs well documented and robust analysis 0f the strengths, weaknesses and valuation 0f the claims being released. The fact that Plaintiff’s thorough investigation revealed that certain claims would be difficult to certify or prove on the merits does not mean that those claims should not be certified for settlement purposes. Much the opposite - by approving settlement 0f challenging claims now, the Parties’ and the Court can ensure class members recover something, Whereas if the claims were litigated through class certification and trial, there is a probability that Class members would recover nothing. More significantly, Intervenors’ argument reflects a fundamental misunderstanding 0f the standard Plaintiffs must meet for settlement approval. In seeking approval, a settling party must provide sufficient information t0 “enable the court t0 make an independent assessment 0f the adequacy 0f the settlement terms.” Kullar v. Foot Locker Retail, Ina, 168 Cal. App. 4th 116, 131-32 (2008). “The proposed settlement is not t0 be judged against a hypothetical or speculative measure 0f what might have been achieved by the negotiators.” Id. at 625. “Estimates 0f a fair settlement figure are tempered by factors such as the risk 0f losing at trial, the expense 0f litigating the case, and the expected delay in recovery (often measured in years)” In re Toys R Us-Delaware, Inc.-- Fair & Accurate Credit Transactions Act (FACTA) Litig, 295 F.R.D. 438, 453 (C.D. Cal. 2014). Settling parties are not, required to partake in a hypothetical accounting exercise: “Kullar does not require any such explicit statement 0f [maximum] value; it requires a record Which allows ‘an understanding 0f the amount that is in controversy and the realistic range of outcomes of the litigation.’” Munoz v. BCI Coca-Cola Bottling C0., 186 Cal. App. 4th 399, 409-10 (2010) (quoting Kullar, 168 Cal. App. 4th at 120 (emphasis added)). Overall, “the most important factor” in determining “whether a settlement is fair and reasonable” is the “strength 0f the case for plaintiffs 0n the merits, balanced against the amount offered in the settlement.” Id. at 409 n.6 (quoting Kullar, 168 Cal. App. 4th at 130). -6- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In other words, in valuing the claims Within a realistic range 0f outcomes, the settling plaintiff should discount the value of the settled claims for risks such as changes in the law, the probability of success, and other factors. Here, there can be n0 doubt that Plaintiffs have provided sufficient information t0 allow the court t0 make an independent assessment 0f the adequacy of the settlement, taking into account the strengths and weaknesses of the claims at issue. That information shows that the parties’ $2,000,000 settlement - which will result in an average payout 0f $483 for each class member - is entirely fair, reasonable and adequate, and falls within the “reasonable range”. Critically, despite Intervenors’ protestations about the settlement value of the claims at issue, and despite having received a huge volume 0f documents, data and information from Defendant by way of formal discovery, Intervenors d0 nothing t0 provide any alternative valuation for any of the claims at issue, 0r any information whatsoever as to Why - factually, legally 0r arithmetically - Plaintiffs’ analyses 0r valuations are incorrect 0r inaccurate. iii. “Heightened Attention” Is Reserved For Evaluation Of Allegedly Overbroad “Class Definitions”, Though Under Any Standard The Settlement Meets The Requirements For Approval. Intervenors also urge the Court t0 apply a “heightened attention” requirement t0 the Settlement. Not only d0 Intervenors cite almost exclusively t0 non-binding Federal Court authority in support 0f the so-called “heighted attention” requirement, but as Intervenors admit, “heightened attention” is reserved for the evaluation 0f potentially overbroad “class definitions”, not a settling Plaintiffs investigation 0r valuation 0f the claims at issue. See Obj. at 11:31; Luckey v. Superior Court (2014) 228 Ca1.App.4th 81, 94. Moreover, as set forth in its Guidelines for Motions Relating to Preliminary and Final Approval 0f Class Actions, the Court has provided that the Kullar standard that is appropriate 0n approval. See Santa Clara Superior Court Guidelines for Motions Relating to Preliminary and Final Approval 0f Class Actions, § I.D. (“Counsel must break out their potential recovery by claims, injuries and recoverable costs and attorneys’ fees so the Court can evaluate the value -7- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the claims and discern the potential cash value of the claims and how much the case was discounted for settlement purposes. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116.)”). There is n0 reason t0 deviate from this standard here, but even if the Court Wished t0 apply a “heightened standard”, it would not change the outcome. Plaintiffs have thoroughly evaluated the strengths and merits 0f their claims, as well as Defendant’s defenses and the risks associated with further litigation. This evaluation for each 0f the claims at issue is included in the declaration 0f Plaintiffs’ Counsel and confirms that the settlement is fair, reasonable and adequate and within the “reasonable range.” iv. A Scrivener’s Error Does Not Reflect Undervalued Claims. Finally, Intervenors truly grasp at straws claiming that the transposition 0f one digit evidences undervalued class claims. This argument is without merit. Plaintiffs have thoroughly and properly investigated, evaluated and valued all claims at issue. A mere scrivener’s error does not change that fact. III. CONCLUSION The parties have negotiated a fair and reasonable Settlement 0f the class and PAGA claims. Plaintiffs have been deputized to pursue all 0f the claims and performed a thorough investigation before settling. The Settlement confers significant benefit t0 the class members Who Will be prejudiced if this matter is subject to further delay. As such, Plaintiffs respectfully request that the Court grant final approve 0f the Settlement. Dated: April 13, 2021 AEGIS LAW FIRM, PC By /s/ Carolyn M. Bell Carolyn M. Bell Attorneys for Plaintiff Samuel Abrego -8- PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO CERTIFICATE OF SERVICE I, the undersigned, am employed in the County 0f Orange, State 0f California. I am over the age of 18 and not a party t0 the Within action; am employed With Aegis Law Firm PC and my business address is 9811 Irvine Center Drive, Suite 100, Irvine, California 92618. On November 9, 2021, I served the foregoing document entitled: o PLAINTIFF’S RESPONSE TO INTERVENORS’ OBJECTION TO CLASS ACTION AND PAGA SETTLEMENT on all the appearing and/or interested parties in this action by delivering D the originalg a true copy thereof on the party(ies) addressed below as follows: Sophia Behnia Mark A. Ozzello Richard H. Rahm Brandon K. Brouillette Colin Larson Joseph Hakakian LITTLER MENDELSON, P.C. CAPSTONE LAW APC 333 Bush Street, 34th Floor 1875 Century Park East, Suite 1000 San Francisco, CA 94104 Los Angeles, California 90067 Telephone: 4 1 5 .433. 1 940 Telephone: (3 10) 556-481 1 Fax No.: 415.399.8490 Facsimile: (3 10) 943-0396 sbehnia@littler.com Mark.Ozzello@capstonelawvers.corn clarson littler.com Brandon.Brouillette®capstonelawvers.com rrahm@littler.com Joseph.Hakakian@capstonelawvers.com Attorneysfor Defendants: Attorneysfor Proposed Intervenors STERICYCLE, INC., STERICYCLE JOHNNY WHITE AND RAUL PICHARDO ENVIRONMENTAL SOLUTIONS, INC, STERICYCLE SPECIALTY WASTE SOLUTIONS, INC., AND SHRED-IT USA LLC D (BY MAIL) I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service 0n that same day with postage thereon fully prepaid at Irvine, California in the ordinary course of business. I am aware that 0n motion 0f the party served, service is presumed invalid if postage cancellation date or postage meter date is more than one day after date 0f deposit for mailing this affidavit. (Cal Code Civ. Proc. § 1013(a); Fed. R. Civ. Proc. 5(a); Fed. R. Civ. Proc. 5(0).) D (BY OVERNIGHT MAIL) I am personally and readily familiar with the business practice 0f Aegis Law Firm PC for collection and processing correspondence for overnight delivery, and I caused such document(s) described herein t0 be deposited for delivery to a facility regularly maintained Federal Express for overnight delivery. (Cal Code Civ. Proc. § 1013(0); Fed. R. Civ. Proc. 5(0).) E (BY ELECTRONIC TRANSMISSION) I caused said document(s) t0 be served Via electronic transmission Via the above listed email addresses on the date below. (Cal. Code Civ. Proc. § 1010.6(6); Fed. R. Civ. Proc. 5(b)(2)(E); Fed. R. Civ. Proc. 5(b)(3).) CERTIFICATE 0F SERVICE \OOOQONUI-PUJNH NNNNNNNNNt-I-Ht-I-Ht-I-Ht- OONQM$UJNHOKOOOQONMJ>WNHO D (BY PERSONAL SERVICE) I delivered the foregoing document by hand delivery to the addressed named above. (Cal Code Civ. Proc. § 101 1; Fed. R. Civ. Proc. 5(b)(2)(A)-) I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. Executed on November 9, 2021, at Irvine, California. -2- CERTIFICATE OF SERVICE