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Guerrero-Hernandez v. Ozburn-Hessey Logistics Partial Opposition to Ex Parte Application
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Shaun Setareh (SBN 204514)
shaun@setarehlaw.com
Thomas Segal (SBN 222791)
thomas@setarehlaw.com
SETAREH LAW GROUP
9454 Wilshire Boulevard, Suite 907
Beverly Hills, California 90212
Telephone: (310) 888-7771
Facsimile: (310) 888-0109
Attorneys for Plaintiff
VALERIA GUERRERO-HERNANDEZ
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
VALERIA GUERRERO-
HERNANDEZ, on behalf of herself, all
others similarly situated,
Plaintiff,
v.
OZBURN-HESSEY LOGISTICS, LLC,
a Tennessee limited liability corporation;
and DOES 1-50, inclusive,
Defendants.
Case No. 5:16-cv-01422 JAK (AFMx)
PLAINTIFF’S PARTIAL
OPPOSITION TO EX PARTE
APPLICATION
Case 5:16-cv-01422-JAK-AFM Document 78 Filed 03/12/19 Page 1 of 5 Page ID #:1195
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Guerrero-Hernandez v. Ozburn-Hessey Logistics Partial Opposition to Ex Parte Application
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Plaintiff does not oppose sending notice to class members who did not
previously receive notice.1 Plaintiff, however, disagrees with Defendant’s
interpretation of the escalator provision in this case.
The relevant provision in the Settlement Agreement states as follows:
The term “Class period” shall mean the time period from April 22, 2012 to
the Preliminary Approval Date. However, if at the time of the filing of the
preliminary approval motion, the Class size has increased by more than 5%
compared to the number set forth in this Agreement, either Defendant will,
in its sole discretion, increase the Total Class Action Settlement Amount
proportionally or agree that the Class Period will end on November 22,
2017.
ECF No. 69-2 § I(1)(h).
This provision gives Defendant a choice as to what to do if the Class size
turns out to be larger than anticipated. However, the plain language “if at the time
of the filing of the preliminary approval motion” shows that Defendant was
supposed to make that choice when the motion for preliminary approval was filed.
Nothing in the agreement indicates that Defendant can wait for notice to go out,
and then choose to invoke a right to cut off the class period, meaning that people
will have been told that they are class members even though they have
retroactively been made not class members.
1 Plaintiff does not understand why the ex parte application says that Plaintiff
refuses to allow notice to be provided to these class members. The Motion for
Final Approval extensively discusses this issue and says: “Plaintiff proposes that
those Class members should receive notice and an opportunity to opt out . . . .”
Plaintiff does believe that this should not delay the settlement process and payment
to Class members.
Case 5:16-cv-01422-JAK-AFM Document 78 Filed 03/12/19 Page 2 of 5 Page ID #:1196
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Guerrero-Hernandez v. Ozburn-Hessey Logistics Partial Opposition to Ex Parte Application
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In fact, Defendant’s interpretation of the Agreement is particularly
unreasonable given that the motion for preliminary approval, like all such motions,
requests the certification of a settlement class. This is why the filing of the motion
for preliminary approval is the time for Defendant to make its election. It enables
the parties to request that the settlement class certified reflect Defendant’s choice
to limit the class period. Therefore, in addition to the plain language of the
Agreement being contrary to Defendant’s interpretation, Plaintiff’s interpretation is
supported by the canon of contract interpretation that: “A contract must receive
such an interpretation as will make it lawful, operative, definite, reasonable, and
capable of being carried into effect, if it can be done without violating the intent of
the parties.” Cal. Civ. Code § 1643.
Rather than timely make its election, Defendant instead waited for
preliminary approval to be granted, for the Court to certify a Settlement Class
which includes post November 2017 employees, and for notice to go out to the
certified Settlement Class.
In fact, by saying nothing while the Court certified the present Settlement
Class, Defendant made its choice. At the time of the filing of the preliminary
approval motion, the Class size was in fact larger than Defendant had stated, yet
Defendant did not request that the Class period be limited. Therefore, by its failure
to opt for a changed class definition before the Settlement Class was certified,
Defendant has chosen to pay an increased settlement amount.
Therefore, to the extent that the ex parte application seeks to avoid
Defendant’s contractual obligation to pay an increased Settlement Amount, it
should be denied.
Respectfully submitted,
Dated: March 12, 2019 SETAREH LAW GROUP
BY: /s/ Shaun Setareh
Case 5:16-cv-01422-JAK-AFM Document 78 Filed 03/12/19 Page 3 of 5 Page ID #:1197
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Guerrero-Hernandez v. Ozburn-Hessey Logistics Partial Opposition to Ex Parte Application
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SHAUN SETAREH
Attorney for Plaintiff,
VALERIA GUERRERO-
HERNANDEZ
Case 5:16-cv-01422-JAK-AFM Document 78 Filed 03/12/19 Page 4 of 5 Page ID #:1198
Case 5:16-cv-01422-JAK-AFM Document 78 Filed 03/12/19 Page 5 of 5 Page ID #:1199
