SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 3, Honorable Patricia Lucas Presiding JeeJee Vizconde, Courtroom Clerk

191 North First Street, San Jose, CA 95113 Telephone: 408.882.2130

To contest the ruling, call (408) 808-6856 before 4:00 p.m.

Please state the case name, case number, the name of the attorney and contact number. It would also be helpful if you could identify the specific portion or portions of the tentative ruling that will be contested. Thank you.

COVID-19 LAW AND MOTION HEARING PROCEDURES

Pursuant to the Judicial Council’s Emergency Rule 3(a)(1) and (3), all law and motion hearings will be conducted remotely through CourtCall until further notice. Please see the General Order re: COVID-19 Emergency Order Regarding Complex Civil Actions, and in particular sections 7 and 10, available at http://www.scscourt.org/general_info/news_media/newspdfs/GENERALORDER_RECOVID-19_EMERGENCY_ORDER_REGARDING_COMPLEXCIVILACTION.pdf. 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.

DATE: MAY 19, 2021 TIME: 1:30 P.M.

LINE # CASE # CASE TITLE RULING LINE 1 20CV374597 Regional Medical Center of San Jose,

et al. v. County of Santa Clara dba Valley Health Plan

Click on LINE 1 for Ruling

LINE 2 19CV342137 Leedeman v. Sunrise Credit Services, Inc.

Click on LINE 2 for Ruling

LINE 3 20CV365252 Flores v. ACCO Engineered Systems, Inc.

RESCHEDULED to July 21, 2021 at 1:30pm

LINE 4 Click on LINE 4 for Ruling LINE 5 Click on LINE 5 for Ruling LINE 6 Click on LINE 6 for Ruling LINE 7 Click on LINE 7 for Ruling

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

REGIONAL MEDICAL CENTER OF SAN JOSE and GOOD SAMARITAN HOSPITAL,

Plaintiff, vs. COUNTY OF SANTA CLARA (d.b.a. VALLEY HEALTH PLAN), Defendant.

Case No. 20CV374597 TENTATIVE RULING RE: DEMURRER

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas

on May 19, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as

follows:

I. INTRODUCTION

This is a business dispute between plaintiffs Regional Medical Center and Good

Samaritan Hospital (collectively, “Plaintiffs”) and defendant County of Santa Clara dba Valley

Health Plan (“Defendant”). According to the Complaint, filed on December 15, 2020, Plaintiffs

operate emergency departments in Santa Clara County and provide emergency medical services

to patients. (Complaint, ¶ 1.) Defendant is a licensed “health care services plan” under the

Knox-Keene Act. (Id. at ¶ 2.) Patients covered by commercial health insurance plans sold by

Defendant routinely come to the emergency departments operated by Plaintiffs, and Plaintiffs

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provide emergency medical services and often also provide post-stabilization services to those

patients. (Id. at ¶ 3.) Plaintiffs send bills to Defendant for these services, but Defendant has

refused to pay the billed amounts. (Id. at ¶ 4.)

The Complaint sets forth the following causes of action: (1) Breach of Implied-in-Law

Contract (Emergency Services); (2) Breach of Implied-in-Law Contract (Post-Stabilization

Services); (3) Breach of Implied-in-Fact Contract (Post-Stabilization Services); (4) Breach of

Contract by Assignment; (5) Services Rendered; (6) Unfair Business Acts and Practices; and

(7) Declaratory Relief. Now before the court is Defendant’s demurrer to each cause of action.

II. REQUESTS FOR JUDICIAL NOTICE

A. Defendant’s Request

Defendant requests judicial notice of the following:

(1) The County of Santa Clara is a public entity and subdivision of the State of

California;

(2) Santa Clara County Charter, art. III, § 300;

(3) County of Santa Clara Board of Supervisors Resolution, BOS-2012-444 and

accompanying published list of public contracts;

(4) County of Santa Clara Board of Supervisors Resolution, BOS-2015-173 and

accompanying published list of public contracts; and

(5) County of Santa Clara Board of Supervisors Policy Manual, Chapter 5.

The court can take judicial notice of the first item as a fact that is not reasonably subject

to dispute and is capable of immediate and accurate determination by resort to sources of

reasonably indisputable accuracy. (Evid. Code, § 452, subd. (h).) The other items are also

subject to judicial notice. (Evid. Code, § 452, subds. (b) and (c).) Accordingly, Defendant’s

request for judicial notice is GRANTED.

B. Plaintiffs’ Request

Plaintiffs request judicial notice of the following:

(1) Valley Health Plan’s Knox-Keene Act Plan License Application, dated September

18, 1995;

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(2) Valley Health Plan’s “Plan License Application Knox-Keene Health Care Service

Plan Act (Execution Page),” dated April 14, 2004, and Valley Health Plan’s

Health & Safety Code § 1300.51 Knox-Keene Act Application, dated October 26,

2004;

(3) Valley Health Plan Covered California Plan and Individual & Family Plan

Membership Agreement: Combined Evidence of Coverage (EOC) and Disclosure

Form; Employer Group Benefits and Coverage Handbook: Combined Evidence

of Coverage and Disclosure Form;

(4) Valley Health Plan Provide Manual;

(5) Valley Health Plan Dispute Resolution Processes;

(6) Original Tolling Agreements and the Amended Tolling Agreement;

(7) Letter to County cataloging claims, dated August 29, 2019;

(8) Letter to County cataloging claims, dated May 27, 2020;

(9) Corrected letter to County cataloging claims, dated June 1, 2020;

(10) Letter to County cataloging claims, dated December 30, 2020;

(11) Notice of Return Without Action, dated October 7, 2019;

(12) Response of Hospitals’ Letter Presenting a Demand for Payment, dated December

19, 2019;

(13) Letter of Claims Rejection, dated June 30, 2020;

(14) Notice of Return Without Action, dated February 4, 2021; and

(15) The Department of Managed Healthcare’s responses to comments regarding

Claims Settlement Practices and Dispute Resolution Mechanisms, dated 2002

through 2003.

Items 1, 2, 3, 4, 5, 11, 12, 13, 14, and 15 are subject to judicial notice as official acts.

(Evid. Code, § 452, subd. (c).) Items 6, 7, 8, and 9 are referenced in the Complaint. (Complaint,

¶¶ 51-57.) They are therefore properly the subjects of judicial notice. (See Ingram v. Flippo

(1999) 74 Cal.App.4th 1280, 1285, fn. 3 [taking judicial notice of documents referred to in the

complaint under Evidence Code section 452, subd. (h)].) However, while the court can take

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judicial notice of the existence of the documents, the court cannot take judicial notice of the truth

of any hearsay statements in the documents. (See Lockley v. Law Office of Cantrell, Green,

Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882; see also Stormedia, Inc. v. Superior

Court (1999) 20 Cal.4th 449, 456, n. 9 [“When judicial notice is taken of a document … the

truthfulness and proper interpretation of the document are disputable.”].)

Item 10 is not referenced in the Complaint and is not subject to judicial notice.

Accordingly, the request for judicial notice is GRANTED with the exception of item 10.

III. DISCUSSION

A. Government Claims Act

Defendant makes several arguments in support of its demurrer, but its first argument, that

the first through fifth causes of action are barred because of Plaintiffs’ non-compliance with the

Government Claims Act, is dispositive with regard to those causes of action.

The Government Claims Act (the “Act”) “establishes certain conditions precedent to the

filing of a lawsuit against a public entity.” (State of California v. Superior Court (2004) 32

Cal.4th 1234, 1237.) Generally, no suit for money or damages may be brought against a public

entity until a written claim has been presented to the public entity and has been acted upon, or

has been deemed to have been rejected. (Gov. Code, §§ 905, 945.4.)

Defendant contends that the first, second, third, fourth, and fifth causes of action are

subject to the Act and that Plaintiffs have not alleged compliance with the claims presentation

requirement. This requirement applies to all claims for money or damages and the first through

fifth causes of action seek monetary relief. (See Complaint, ¶¶ 70, 80, 93, 98, and 103.)

Plaintiffs argue that the Act does not apply. Plaintiffs contend that Defendant operates its

health plan pursuant to a license under the Knox-Keene Act (“KKA”) and that KKA plans are

obligated to provide a mechanism to process bills for out-of-network hospitals and a method for

resolution of disputes, and are subject to judicial processes applicable to licensed plans.

Plaintiffs assert the KKA does not require any pre-lawsuit processes before a provider can sue.

Plaintiffs cite no authority demonstrating that the Act is not applicable when a lawsuit

related to a KKA plan is filed. While the KKA may impact the substantive rights of the parties,

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it does not impact the procedural pre-filing requirement of the Government Claims Act. The Act

applies to all lawsuits seeking money or damages, with the limited exception of certain claims

listed in Government Code section 905, none of which are at issue here.

Plaintiffs contend that, even if the Government Claims Act applies, Defendant’s claims

presentation defense fails for several reasons. Plaintiffs first argue that they have alleged

compliance with the Act by alleging that they submitted bills and appeals to Defendant, sent a

spreadsheet of bills to Defendant (to both the health plan and the County), and received notices

of rejection. The Complaint contains allegations to this effect. (See Complaint, ¶¶ 49-52.)

Submitting a claim for reimbursement pursuant to a claims process is not the same as

complying with the Act as a prerequisite to filing a lawsuit. The Act sets forth specific

requirements that must be met and its purpose is “not to prevent surprise, but to provide the

public entity sufficient information to enable it to adequately investigate claims and to settle

them, if appropriate, without the expense of litigation. [Citations.] It is well-settled that claims

statutes must be satisfied even in the face of the public entity’s actual knowledge of the

circumstances surrounding the claim.” (DiCampli-Mintz v. County of Santa Clara (2012) 55

Cal. 4th 983, 990-991, quoting City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738,

quotation marks omitted.)

Presentation of a claim to a public entity can be accomplished by: (1) delivering it to the

clerk, secretary, or auditor of the entity; (2) mailing it to the clerk, secretary, auditor, or to the

governing body at its principal office; or (3) if expressly authorized by an ordinance or resolution

of the public entity, submitting it electronically to the public entity in the manner specified in the

ordinance or resolution. (Gov. Code, § 915, subd. (a).) Section 915 “reflects the Legislature’s

intent to precisely identify who may receive claims on behalf of a local public entity.”

(DiCampli-Mintz v. County of Santa Clara, supra, 55 Cal.4th at p. 992.) While a misdirected

claim will satisfy the presentation requirement if the claim is “actually received” by a statutorily

designated recipient, “[i]f an appropriate public employee or board never receives the claim, an

undelivered or misdirected claim fails to comply with the statute.” (Ibid.) Plaintiffs do not

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allege that they presented their claim to any of the statutorily designated recipients listed in the

statute or that any of them actually received the claim.

Plaintiffs attempt to show, through their request for judicial notice, that their claims were

presented to the County by providing several letters. (Declaration of Vinay Kohli in Support of

Plaintiff Regional Medical Center of San Jose and Good Samaritan Hospital’s Request for

Judicial Notice is Support of Opposition to Defendant’s Demurrer to Plaintiff’s Complaint, Exs.

G-I.) The letters each state in the first paragraph that they are being sent to both Valley Health

Plan and the County of Santa Clara, but these statements are hearsay. Further, the letters do not

show that they were sent to one of the statutorily designated recipients.

Plaintiffs argue that the Act only requires substantial compliance and that the key is

whether the public entity knows of the claims it may face. The cases cited by Plaintiffs do not

support their contention in the context of this lawsuit. The holding of the first case cited,

Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 200-204, is

adverse to Plaintiffs: the Court of Appeal found that there was no substantial compliance when a

packet of documents was not sent to the proper authority. The other two cases, California

School Employees Assn., Tustin Chapter No. 450 v. Tustin Unified School Dist. (2007) 148

Cal.App.4th 510, 523-524, and Stockett v. Association of Cal. Water Agencies Joint Powers Ins.

Authority (2004) 34 Cal.4th 441, 446, concerned the issue of substantial compliance with regard

to the content of the claims, not whether the claims were presented to a proper individual or

entity. Notably, all of these cases predate DiCampli-Mintz, which emphasized the need for

certainty in the claims presentation requirement. (DiCampli-Mintz v. County of Santa Clara,

supra, 55 Cal.4th at p. 997.)

Plaintiffs contend that the claims presentation requirement is not a bar when technical

non-compliance results from instructions from the public entity to pursue a different course.

Plaintiffs do not allege Defendant told Plaintiffs not to present a claim, or to take some other

action as an alternative to presenting a claim. Plaintiffs also cite no authority for the proposition

that Defendant had an obligation to tell Plaintiffs of the need to present a claim in compliance

with the Act or how to present such a claim.

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Plaintiffs have not alleged compliance with the claims presentation requirement of the

Government Claims Act. Plaintiffs must allege such compliance, including that a claim or

claims were presented to one of the statutorily designated recipients in Government Code section

915. Accordingly, the demurrer is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND as to

the first through fifth causes of action.

B. Sixth Cause of Action – Unfair Business Acts and Practices

Defendant argues that because it is a public entity and not a “person” within the meaning

of the UCL, the sixth cause of action does not state a claim for relief. Defendant relies on

Community Memorial Hospital v. County of Ventura (1996) 50 Cal.App.4th 199, 210, where the

court held that “inclusion of the County in the Unfair Practices Act or the unfair competition

statute as it relates to the operation of its hospital would result in an infringement on its

sovereign powers.”

Plaintiffs cite to Blue Cross of California, Inc. v. Superior Court (2009) 180 Cal.App.4th

1237, 1250, for the proposition that KKA plans are subject to UCL claims by out-of-network

providers for payment, but that case did not involve a claim against a public entity such as a

county, so it is inapposite.

Defendant’s demurrer is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND as to the

sixth cause of action.

C. Seventh Cause of Action – Declaratory Relief

The declaratory relief cause of action is derivative of the other claims in the Complaint to

which the demurrer is being sustained. Therefore the declaratory relief claim also cannot be

maintained. (See Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800.)

Defendant’s demurrer is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND as to the seventh

cause of action.

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

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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.

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

PEGGY IRENE LEEDEMAN, individually and on behalf of all others similarly situated, Plaintiff, vs. SUNRISE CREDIT SERVICES, INC., a New York corporation; and DOES 1 through 10, inclusive, Defendants.

Case No. 19CV342137 TENTATIVE RULING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

The above-entitled action comes on for hearing before the Honorable Patricia M. Lucas

on May 19, 2021 at 1:30 p.m. in Department 3. The court now issues its tentative ruling as

follows:

I. INTRODUCTION

This is a putative consumer class action brought pursuant to the California Rosenthal Fair

Debt Collection Practices Act (“RFDCPA”). Plaintiff Peggy Irene Leedeman (“Plaintiff”) seeks

statutory damages against defendant Sunrise Credit Services, Inc. (“Defendant”) arising from its

routine practice of sending initial written communications that fail to provide the “Consumer

Collection Notice” required by California Civil Code section 1812.700, subdivision (a), in a

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type-size that is at least the same type-size as that used to inform the debtor of his or her specific

debt or in at least 12-point type. (Complaint, ¶ 3.)

The Complaint, filed on February 4, 2019, sets forth a single cause of action for

“California Consumer Collection Notice.” The parties have reached a settlement. Plaintiff and

Defendant (collectively, the “Parties”) jointly 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

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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 class:

(i) all persons with addresses in Santa Clara County, California (ii) to whom Defendant sent, or caused to be sent, an initial written communication in the form of Exhibit “1,” to the Class Action Complaint herein (iii) in an attempt to collect a defaulted consumer debt owed to BANK OF AMERICA, N.A., (iv) which were not returned as undeliverable by the U.S. Post Office (v) during the period February 4, 2018, through the date of class certification.

(Declaration of Fred W. Schwinn in Support of Joint Motion and Motion for Preliminary

Approval of Class Action Settlement and Provisional Class Certification (“Schwinn Decl.”),

Ex. A (“Settlement Agreement”), ¶ 2.3.)

Excluded from the class are: (a) any officers, directors, or legal representatives of

Defendant, and any judge, justice, or judicial officer presiding over this matter and the members

of their immediate families and judicial staff persons who are already subject to an existing

release; and (b) any class member who timely mails a request for exclusion. (Settlement

Agreement, ¶ 2.4.)

According to the terms of settlement, Defendant will pay a total amount of $28,000.

(Settlement Agreement, ¶ 4.2.) The settlement payment includes $1,000 to Plaintiff as statutory

damages and $2,000 to Plaintiff as a service award. (Settlement Agreement, ¶¶ 4.1 and 4.5.)

The settlement also includes attorney fees and costs, but neither the Settlement Agreement nor

the motion papers provide any amounts.

Checks not cashed for 90 days from the date of mailing will be paid to Pro Bono Project

of Silicon Valley. (Settlement Agreement, ¶ 4.4.)

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B. Fairness of the Settlement

Plaintiff states that the settlement will provide $42.48 per class member, and contends

that it is a fair and reasonable result without the risks and burdens of continued litigation.

Plaintiff asserts that the settlement and was reached through arm’s-length negotiations.

Overall, the court finds the settlement payment to the class is fair. The settlement

provides for some recovery for each class member and eliminates the risk and expense of further

litigation. As noted below, however, the court needs information regarding fees and costs to

make a fairness determination regarding the settlement as a whole.

C. Incentive Award, Fees, and Costs

Plaintiff requests an incentive award of $2,000.

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.)

The class representative shall provide a declaration detailing her participation in the

lawsuit prior to final approval. The court will make a determination regarding the incentive

award 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.) The parties do not state

how much is sought for fees and costs as part of the settlement, asserting instead that Plaintiff’s

counsel will separately seek fees and costs in connection with final approval of the proposed

settlement. The court cannot make a preliminary determination as to the fairness of the

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settlement absent this information. Further, this is information that should be included in the

notice to the class because it could impact class members’ decisions on whether to opt-out or

object. Therefore, Plaintiff shall specify the amount of requested attorney fees and costs in a

supplemental declaration to be filed with the court.

D. Conditional Certification of Class

The Parties request that the putative class 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.

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(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, internal quotation

marks, ellipses, and citations omitted.)

Class members can be ascertained from Defendant’s records. There are common

questions of law and fact because the letters sent to members of the class differed only with

regard to contact information, balance due, and other particular account information. No issue

has been raised regarding the typicality or adequacy of Plaintiff as class representative. In sum,

the court finds that the proposed class 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 the final approval hearing will be held in Department 3 of

the Santa Clara County Superior Court. The following language shall be added to the notice to

clarify that the hearing will be held remotely:

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.

Additionally, the language regarding the right to object shall be moved to the section of

the notice titled “YOUR RIGHTS.” The parties shall also include in the notice the amount of

attorney fees and costs to be requested.

IV. CONCLUSION

The motion for preliminary approval of the class action settlement is CONTINUED to

June 9, 2021. Plaintiff shall file an amended notice and a supplemental declaration setting forth

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the amount of requested attorney fees and costs, no later than May 27, 2021. The case

management conference scheduled for May 19, 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.

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SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

Case No.

The Court will prepare the order.

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SUPERIOR COURT OF CALIFORNIA

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The Court will prepare the order.

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SUPERIOR COURT OF CALIFORNIA

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Case No.

The Court will prepare the order.

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SUPERIOR COURT OF CALIFORNIA

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SUPERIOR COURT OF CALIFORNIA

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