COPY. MAY o E. Rodriguez

Transcription

1 COPY J Eric J. Benink, Esq. (SBN ) eric@kkbs-law.corn Benjamin T. Benumof, Esq. (SBN 0) Ben@kkbs-law.corn Krause, Kalfayan, Benink & Slavens, LLP 0 West C Street, Suite 0 San Diego, CA 0 Tel: () -0 Fax: () -0 Attorneys for Petitioner and Plaintiff MAY o 0 E. Rodriguez 0 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF RIVERSIDE - HISTORIC COURTHOUSE J. JAMES MILO, an individual, on behalf of himself and all others similarly situated, Petitioner and Plaintiff, v. COACHELLA VALLEY WATER DISTRICT, a county water district; and DOES -0, Respondents and Defendants. Case No.: PSC000 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT AND PROVISIONAL CERTIFICATION OF SETTLEMENT CLASS Date: May, 0 Time: :0 a.rn. Dept.: 0 Judge: Sharon J. Waters 0 PAA's Case #PSCl 000

2 0 0 TABLE OF CONTENTS INTRODUCTION... PROCEDURAL HISTORY... FACTUAL ALLEGATIONS... SUMMARY OF SETTLEMENT TERMS... A. THE SETTLEMENT CONSIDERATION... B. SETTLEMENT CLASS... C. RELEASE OF CLAIMS... 0 D. CLASS NOTICE Opt-Out Procedure.... Objection Procedure... E. ATTORNEYS FEES AND COSTS... F. CLASS REPRESENTATIVE SERVICE AWARD... G. RELEVANT DATES AND DEADLINES... ARGUMENT... A. THE PROPOSED SETTLEMENT SHOULD BE APPROVED.... The Settlement is Fair and Reasonable.... Settlement is the Product of Arm s-length Negotiations.... Sufficient Investigation and Discovery Have Been Completed.... Counsel Are Highly-Experienced Proposition Attorneys... B. SETTLEMENT CLASS SHOULD BE CERTIFIED.... Numerosity is Satisfied.... Community of Interest Requirement is Met.... Plaintiff s Claims are Typical.... Plaintiff Will Adequately Represent the Class.... Class Action is Superior to Other Available Methods of Resolution... C. THE NOTICE PLAN SATISFIES DUE PROCESS... CONCLUSION... PAA s Case #PSC000

3 0 0 TABLE OF AUTHORITIES CASES Federal Cases Dennis v. Kellogg Co. (S.D. Cal. May, 0) No. 0-CV--IEG WMC, 0 WL 0, at *... In re Bluetooth Headset Products Liability Lit. ( th Cir. 0) F.d... In Re First Holdings Corp. Fin. Prods. Sec. Litig. (C.D. Cal. June 0, )... Officers for Justice v. Civil Serv. Comm'n of City & Cty. of San Francisco (th Cir. ) F.d... State Cases Brown v. Regents of University of California () Cal.App.d... Bufil v. Dollar Financial Group, Inc. (00) Cal.App.th... Capistrano Taxpayers Ass n, Inc. v. City of San Juan Capistrano (0) Cal.App.th..., Cartt v. Superior Court () 0 Cal.App.d 0... Chavez v. Netflix, Inc. (00) Cal.App.th... Clark v. American Residential Services LLC (00) Cal.App.th... Classen v. Weller () Cal.App.d... PAA s Case #PSC000

4 0 0 Daar v. Yellow Cab Co. () Cal.d..., Dunk v. Ford Motor Co. () Cal.App.th..., Hebbard v. Calgrov () Cal.App.d 0,... Home Sav. & Loan Ass n v. Sup. Ct. () Cal.App.d Laffitte v. Robert Half Intern. Inc. (0) Cal.th 0... McGee v. Bank of America () 0 Cal.App.d... -Eleven Owners for Fair Franchising v. Southland Corp. (000) Cal.App.th... Wershba v. Apple Computer, Inc. (00) Cal.App.th...,, CALIFORNIA CONSTITUTION Cal. Const., art. XIII D..., STATUTES California Code of Civil Procedure... California Government Code.(a)... PAA s Case #PSC000

5 OTHER AUTHORITIES California Rules of Court Rule.... Rule.(d)... Rule.(e)... JUDICIAL COUNCIL OF CALIFORNIA, DESKBOOK ON THE MANAGEMENT OF COMPLEX CIVIL LITIGATION (0).[] PAA s Case #PSC000

6 0 0 INTRODUCTION Petitioner and Plaintiff J. James Milo ( Plaintiff ) respectfully moves this Court for preliminary approval of a class action settlement agreement reached between Plaintiff, on behalf of himself and a Settlement Class, and Respondent and Defendant Coachella Valley Water District ( Defendant or District ). For the reasons set forth in this memorandum and supporting documents, the proposed Settlement was the result of arm s-length, non-collusive negotiations arrived at between the parties through two separate mediation sessions before Justice Jeffrey King (Ret.), and is fair and reasonable and in the best interest of the Settlement Class. Plaintiff respectfully requests that the court take the following initial steps in the settlement approval process: () grant preliminary approval of the proposed Settlement; () conditionally certify a Settlement Class for settlement purposes; () appoint Plaintiff as the Class Representative and his attorneys as Class Counsel; () approve the proposed notice plan and forms of notice; and () schedule a Fairness Hearing and set deadlines as proposed by the parties. PROCEDURAL HISTORY On January, 0, Plaintiff, along with Allan Keller, filed a (non-class action) Verified Petition for Writ of Mandate and Complaint ( Petition ) in the Superior Court of the State of California for the County of Riverside captioned Keller, et al. v. Coachella Valley Water District, Case No. PSC000. Plaintiffs alleged that the District was violating Proposition (Cal. Const., art., XIII D ) because its tiered water rate structure was not cost-based and the tiered rates were adopted without proper notice to ratepayers. They also alleged that the District was imposing unconstitutional drought penalties upon ratepayers. The action was initially brought to compel the District to cease its alleged unconstitutional practices it sought no damages. On March, 0, the District filed an answer denying the allegations. On or about June, 0, the District enacted Ordinance No. 0 which replaced the then-existing water rate structure and adopted new water rates, fees and charges for the period July Keller dismissed his claims on January, 0. PAA s Case #PSC000

7 0 0, 0 through June 0, 0. (Declaration of Eric J. Benink ( Benink Decl. ), filed herewith,.) Effective June, 0, the District ceased its imposition of all drought penalties. (Id.) The District s post-petition actions threatened the viability of the claims. (Id.,.) In a similar action brought by a homeowners association challenging the District s rates, the District argued that the entire action was moot due to the new rate structure. Indeed, on August, 0, Judge Chapman sustained a demurrer to the homeowners association s second amended complaint (with leave) stating: The adoption of a new rate structure renders any claims based upon the old rate structure, other than a claim for refunds of monies collected, moot. (Id.) On October, 0, in response to the District s probable argument that without a claim for damages, the claims alleged in the Petition were moot, Plaintiff submitted a Government Claims Act administrative claim ( Claim ) to District on behalf of himself and all domestic water users, alleging violations of Proposition and seeking a refund of unconstitutional water fees and charges. On November, 0, District rejected the Claim. (Id.,.) Meanwhile, on November, 0, Plaintiff and Keller filed an Opening Brief on the Petition in compliance with the Court s scheduling order (the writ petition hearing was scheduled for March, 0.) (Id.,.) The parties participated in mediation sessions on November, 0 and December, 0 before Justice Jeffrey King (Ret.). The parties reached a proposed class-wide settlement in principle at the conclusion of the second session, which contemplated amending the Petition to include class allegations. Thereafter, the parties stipulated to the filing of a First Amended Verified Petition for Writ of Mandate; Complaint for Declaratory Relief and Violation of Proposition ( Amended Petition ) as a putative class action which was ordered filed on March, 0. (Id.,.) In light of the class allegations, this action was transferred from the Palm Springs Division to Department 0. On May, 0, Plaintiff and the District executed a class action settlement agreement ( Settlement Agreement ). (Id.,, Ex. A.) Desert Falls Villas I Homeowners Ass n v. Coachella Valley Water District, Case No. INC 0. PAA s Case #PSC000

8 0 0 FACTUAL ALLEGATIONS The District provides domestic water service to approximately 0, customers. (Benink Decl.,.) The domestic water service charges in effect prior to July, 0 were set through Ordinance Nos. and 0. On June, 0, the District adopted Ordinance No. 0 which adopted new domestic water rates effective July, 0 (replacing Ordinance Nos. and 0). (Id.,.) The July, 0 rates were based on a sixty page professional rate study prepared by an outside consultant, Hawksley Consulting, on April, 0. (Id.,.) The District mailed a Proposition notice to domestic water customers and conducted a public hearing prior to adopting Ordinance No. 0. (Id.) In addition to usage charges, on July, 0, the District began imposing drought penalties on customers when they violated certain levels of water usage. (Ordinance No..) Ordinance No. explained that it was designed to comply with Governor Brown s April, 0 Executive Order requiring a % reduction in urban water usage. (Id.,.) The District increased and/or adjusted the penalties on December, 0 (Ordinance No. ) and adjusted the penalties on March, 0 (Ordinance No..) (Id.,.) On June, 0, the District effectively lifted the penalties. (Ordinance No..). The penalties will only continue if the State Water Resources Control Board ( SWRBC ) later orders a reduction of water usage by more than %, which is unlikely because the SWRBC has moved away from measuring conservation in terms of usage; it now considers water supply conditions instead. (Id,.) Plaintiff, a domestic water customer, alleges that the District s domestic water rate structure violates Proposition (Cal. Const. art. XIII D, section.) Proposition places constitutional restrictions on a local government s ability to impose property-related fees and charges, such as fees and charges for water service. Plaintiff alleges that District (a) failed to provide proper notice, as required by Proposition (with regard to the pre-july, 0 tiered rates) (b) imposed tiered rates that were not cost-based and instead were based on artificiallydesigned increases, and (c) imposed drought penalties that were not cost-based and/or unconstitutional because they were excessive. PAA s Case #PSC000

9 0 0 SUMMARY OF SETTLEMENT TERMS A. THE SETTLEMENT CONSIDERATION The Settlement establishes a $,00,000 common fund ( Common Fund ). (SA.) After attorney s fees and expenses, service award, and publication expenses are deducted, the balance ( Net Common Fund ) will be distributed to the District s domestic water customers as automatic credits on water bills. (SA......) No claim is required to be submitted and the entirety of Net Common Fund will be distributed (i.e. there is no residual). The Net Common Fund will be distributed pro rata to each property address that receives domestic water service based on a formula that recalculates the monthly per CCF (Centrum Cubic Feet) rates in Tiers,, and at the lower Tier rate at that property address during October, 0 through June 0, 0. (Id.) This formula reflects the general nature of the strongest allegations: that Tiers,, and were not cost-based and ratepayers received no notice of those tiered rates as required under Proposition. (Benink Decl., 0,.) The credits will be issued on the first monthly bill that occurs at least 0 days after the Effective Date of the Settlement (which is 0 days after the Court enters the Final Order and Judgment). (SA...) B. SETTLEMENT CLASS The parties stipulate to the conditional certification of a Settlement Class, as follows: All persons who, between October, 0 and the date the Preliminary Approval Order is entered, were Coachella Valley Water District domestic water customers and paid domestic water rates. Excluded from the class, are: (a) any officers and board members of the District; (b) any judge assigned to hear the case; (c) Desert Falls Villas I Homeowners Association; and (d) persons who timely and properly exclude themselves from the class. (SA...) Desert Falls Villas I Homeowners Association is excluded because it settled its case with the District in the related action. (Benink Decl.,.) SA shall refer to the Settlement Agreement attached to the Benink Declaration as Exhibit A. PAA s Case #PSC000

10 0 0 C. RELEASE OF CLAIMS Upon final approval of the Settlement, Class Members who do not opt out will release all rights, claims, and actions they and any of them now have, or may have in the future, against the District, and its employees, board members, officers, and agents arising out of, or relating to, the facts and circumstances giving rise to this Lawsuit or Claim, or arising out of, or relating to, the water rates, drought penalties and fines imposed pursuant to District Ordinance Nos., 0,,,.,, and/or 0. (SA 0..) D. CLASS NOTICE Section of the Settlement Agreement describes the Notice Plan which is summarized as follows: Within ten days after entry of the Preliminary Approval Order, the District must mail a Summary Notice to its current domestic water customers at their water service address. (SA., Ex. B.) Within ten days after the entry of the Preliminary Approval Order, the District must cause a Publication Notice to be published in the Desert Sun two times seven days apart. (SA., Ex. D.) Within ten days after the court enters the Preliminary Approval Order, Class Counsel will establish and maintain a settlement website at that includes a Long Form Notice (in the form SA, Ex. C), together with a copy of the Settlement Agreement, Objection Form (in the form of SA, Ex. F), an Opt-Out Form (in the form of SA, Ex. G), and a copy of the Preliminary Approval Order. The website shall be updated with Class Counsel s application for Attorney s Fees and Reimbursement of Expenses, the Motion for Final Approval of Settlement, and with any other information required by the Court in its Preliminary Approval Order or as agreed to by the Parties. (SA..) This URL was agreed upon after the execution of the SA and not specifically referenced in the SA. PAA s 0 Case #PSC000

11 0 0. Opt-Out Procedure Any Class Member may request to be excluded from the Settlement Class by sending a written Opt-Out Form to Class Counsel at the address provided in the class notice, postmarked no later than days after the Notice Date (date summary notice is mailed.) (SA..;..;.) Any potential Class Member who files a timely request for exclusion will not be a member of the Class, will not release any claims and will reserve all claims he or she may have. Any Class Member who does not timely file a written request shall be deemed to be a Class Member bound by all subsequent proceedings, orders, and judgments including but not limited to the Release, Final Order and Final Judgment. (SA.,..). Objection Procedure Any Class Member who has not timely opted out of the class may object to the terms of the Settlement by mailing and filing an Objection Form with the Court, postmarked no later than days after the Notice Date (date summary notice is mailed.) (SA..;..;.) Objectors are not required to appear at the Fairness Hearing, but if they intend to appear, they must deliver a notice of intention to appear to the parties counsel and file the notice with the Court. (SA.,..) E. ATTORNEYS FEES AND COSTS Class Counsel intends to request attorney s fees and reimbursement of litigation costs to be paid out of the Common Fund in an amount not to exceed %. The District has agreed to not object to this request. Class Counsel will file a motion for attorney s fees and expenses not less than ten (0) days prior to the Objection and Exclusion Deadline. (SA.) F. CLASS REPRESENTATIVE SERVICE AWARD Plaintiff will request an incentive award of no more than $,000, to be paid out of the Common Fund, in recognition of Plaintiff s service on behalf of the Settlement Class. This request will be filed with the motion for attorney s fees and expenses. (SA.) G. RELEVANT DATES AND DEADLINES The following schedule sets forth a proposed sequence for the relevant dates and deadlines: PAA s Case #PSC000

12 0 0 X = Date this preliminary approval order is entered. Y = Date of Fairness Hearing (Requires at least 0 days after X)) All calculations are based on calendar days unless otherwise noted. If a calendar day deadline falls on a weekend or holiday, the deadline shall be the next day that is not a weekend or holiday. EVENT CALCULATION ACTUAL DATE Summary Notice to be mailed. (.) X + 0 June, 0 Publication Notice to be published (two weeks) (.) Long Form Notice to be published on website (.) Motion for attorney s fees / service award to be filed and published on website (.,.) X + 0; x + June, 0 June, 0 X + 0 June, 0 X + July, 0 Objections to be postmarked. (..,..) X + July, 0 Requests for exclusion to be postmarked. (..,..) X + July, 0 Motion for Final Approval to be filed. (..) Y - TBD Class Counsel to file declaration identifying persons who requested exclusion. (..) Affidavit of compliance with notice to be filed. (..) Replies in support of application for attorney s fees / service awards to be filed. Y court days Y court days Y court days TBD TBD TBD Fairness Hearing. Y Mid-August 0 ARGUMENT A. THE PROPOSED SETTLEMENT SHOULD BE APPROVED A class action may not be dismissed, compromised or settled without Court approval. (Cal. PAA s Case #PSC000

13 0 0 Rules of Court, Rule..) Such approval entails a three-step process, where the court first rules on a preliminary approval motion, making a preliminary finding that the terms and conditions are fair, adequate, and reasonable; notice is then given to the class members; and the court holds a final approval hearing. (See generally, Judicial Council of California, Deskbook on the Management of Complex Civil Litigation.[] (0).) In determining whether to approve or reject a proposed settlement, courts have broad discretion. (Wershba v. Apple Computer, Inc. (00) Cal.App.th, -.) At the preliminary approval stage, the court need only decide whether the proposed settlement falls within a range of reasonableness for final approval, such that notice to the class should be given. (Id. at pp. -, ; see also Dennis v. Kellogg Co. (S.D. Cal. May, 0) No. 0-CV--IEG WMC, 0 WL 0, at *.) A class settlement should be approved if the settlement is found to be fair, adequate, and reasonable. ( Dunk v. Ford Motor Co. () Cal.App.th, 0.) In making this determination, courts consider several factors, including 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. (Ibid.) The above factors are not exhaustive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case. (Wershba, supra, Cal.App.th at p..) Due regard should be given to what is otherwise a private consensual agreement between the parties. (Dunk, Cal.App.th at p. 0.) Thus, a court s inquiry must be limited 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 Officers for Justice v. Civil Serv. Comm'n of City & Cty. of San Francisco (th Cir. ) F.d, ].) PAA s Case #PSC000

14 0 0 Generally, a presumption of fairness exists where: () the settlement is reached through arm s length bargaining; () investigation and discovery are sufficient to allow counsel and the court to act intelligently; () counsel is experienced in similar litigation; and () the percentage of objectors is small. (Wershba, supra, Cal.App.th at p. [citing Dunk, supra, Cal.App.th at p. 0].). The Settlement is Fair and Reasonable To settle this matter, the District has agreed to create a Common Fund in the amount of $,00,000. This amount reflects Plaintiff s (a) high confidence level on claims pertaining to the service/usage tiered rates and the District s alleged failure to notify ratepayers of the tiered rates prior to July, 0, and (b) low confidence level in the drought penalty claims and on claims pertaining to the new rates effective July, 0. (Benink Decl., 0-.) It also reflects a high probability that the Class s claims would be limited to the period beginning October, 0. October, 0 is approximately one () year prior to the date Plaintiff submitted the Government Claims Act administrative claim. The District contends that claims for damages must be submitted no later than one year from the date the claim accrued. (See Gov t Code.(a).) (Benink Decl.,.) Thus, if a ratepayer was overcharged in September 0, he or she needed to file a claim no later than September 0. The total recovery during the October, 0 through June 0, 0 period on claims regarding the tiered service/usage rates and on the failure to notify ratepayers (i.e., the high confidence claims) is approximately $. million. (Benink Decl.,.) Class Counsel s request for an attorney s fee award and reimbursement of expenses in the amount of % of the Common Fund (i.e. approximately $00,000) is fair and reasonable. The Ninth Circuit has approved a % benchmark. (See In re Bluetooth Headset Products Liability Lit. ( th Cir. 0) F.d, ; see also Laffitte v. Robert Half Intern. Inc. (0) Cal.th 0, [discussing Ninth Circuit benchmark].) Class Counsel intends to provide lodestar information in support of this request as well. And Plaintiff s request for a service award of $,000 is appropriate for his efforts in bearing the risk and time to represent others; Plaintiff attended two separate mediation sessions that culminated with this Settlement. PAA s Case #PSC000

15 0 0. Settlement is the Product of Arm s-length Negotiations The proposed Settlement was reached following adversarial and spirited arm s-length negotiations extending over two mediation sessions before an experienced and respected mediator, Justice Jeffrey King (Ret.) (Benink Decl.,.) The fact that mediation was overseen by a neutral third party is evidence of the non-collusive nature of the negotiations. (Clark v. American Residential Services LLC (00) Cal. App. th, 00 [ The court undoubtedly should give considerable weight to the competency and integrity of counsel and the involvement of a neutral mediator in assuring itself that a settlement agreement represents an arm s-length transaction entered without self-dealing or other potential misconduct. ].). Sufficient Investigation and Discovery Have Been Completed Class Counsel had the benefit of negotiating this Settlement after an extensive review and consideration of the entire evidentiary record that would have been before the Court had this matter proceeded to trial. Specifically, the District prepared a 0,000+ administrative record that Class Counsel carefully reviewed and then extensively argued in its Opening Brief on the Writ Petition. (Benink Decl.,,.) This Opening Brief was filed with the Court before the parties participated in mediation. (Id.) The Opening Brief reflects Class Counsel s studied and careful analysis in this action. Because the original Petition did not contemplate recovering damages for ratepayers, Class Counsel did not previously have data regarding the amount of consumption in the tiers incurred during the Class Period (which was necessary to estimate damages). This information was disclosed by the District during the mediation and served as the basis for negotiating the Settlement. (Benink Decl.,.) Class Counsel thereafter obtained a declaration from the District s General Manager, James M. Barrett to confirm the veracity of the consumption data prior to the parties executing the Settlement Agreement. (Id.,.). Counsel Are Highly-Experienced Proposition Attorneys Class Counsel has extensive experience in Proposition cases and in class actions throughout California. (Benink Decl.,, Ex. B, Ex. C). Attorney Benjamin T. Benumof was the lead attorney in the seminal 0 Fourth District case, Capistrano Taxpayers Ass n, Inc. v. PAA s Case #PSC000

16 0 0 City of San Juan Capistrano (0) Cal.App.th. which held that tiered water rates must be cost-based to comply with Proposition. Benumof and attorney Eric J. Benink recently obtained a writ of mandate in a Proposition case against City of Glendale that challenged the City s water rates as failing to comply with Proposition. (Id..) Where, as here, the settlement is the product of serious, informed, non-collusive negotiations and comprehensive investigation of the merits of the claims, significant weight should be attributed to the belief of experienced counsel that the Settlement is in the best interest of the settlement class. (See In Re First Holdings Corp. Fin. Prods. Sec. Litig. (C.D. Cal. June 0, ) MDL Docket No. 0, U.S. Dist. Lexis, at *-.) B. SETTLEMENT CLASS SHOULD BE CERTIFIED Rule.(d) of the California Rules of Court allows for the conditional certification of a settlement class at the time of preliminary approval. Section of the California Code of Civil Procedure sets forth four requirements for certification, including numerosity, community of interest, typicality and adequacy. The Settlement Class meets these requirements.. Numerosity is Satisfied Class certification is appropriate where the class contains so many members that joinder of all would be impracticable. (Cal. Code Civ. Proc. ). Here, the proposed settlement class is comprised of approximately 0,000 Coachella Valley Water District domestic water customers, which clearly meets the threshold. (Hebbard v. Calgrov () Cal.App.d 0, 00 [no set minimum to meet numerosity requirement and class as few as members is acceptable].) The class members must also be ascertainable. (See Daar v. Yellow Cab Co. () Cal.d, 0 (Daar).) Class members are ascertainable where they may be readily identified without unreasonable expense or time by reference to official records. (Bufil v. Dollar Financial Group, Inc. (00) Cal. App. th, 0.) Here, the proposed settlement class is ascertainable because its members are District water customers. PAA s Case #PSC000

17 0 0. Community of Interest Requirement is Met A community of interest among class members exists when common questions predominate over individual ones. (Brown v. Regents of University of California () Cal. App. d, ; Daar, surpa, Cal.d. at p..) Here, such common questions include (a) whether the District s domestic water tiered waters were cost-based in compliance with Proposition, (b) whether the District failed to give proper Proposition notice to Class Members before adopting tiered rates, and (c) whether Class Members are entitled to refunds.. Plaintiff s Claims are Typical The proposed class representative s interests must be substantially similar to members of the proposed class. Their claims need not be identical. It is sufficient that the representative is similarly situated, such that they are motivated to litigate on behalf of class members. (Classen v. Weller () Cal. App. d,.) Plaintiff is a domestic water customer of the District and has paid the fees and charges at issue. (See Verified Amended Petition,.). Plaintiff Will Adequately Represent the Class To fairly and adequately protect the class, a plaintiff must (a) be represented by qualified counsel, and (b) not have interests antagonistic to class members. (McGee v. Bank of America () 0 Cal. App. d, 0.) Plaintiff satisfies this requirement. Plaintiff has retained Eric J. Benink and Benjamin T. Benumof of Krause, Kalfayan, Benink & Slavens, LLP, who, as explained above, are experienced in class actions and in Proposition litigation, such that they will vigorously represent the proposed Settlement Class. Moreover, Plaintiff has no interests antagonistic to the interests of the Settlement Class.. Class Action is Superior to Other Available Methods of Resolution Particularly in the settlement context, class resolution is superior to other available methods for the fair and efficient adjudication of large numbers of small individual claims. Here, the potential recovery for individual settlement class members is relatively small, averaging $.. (Benink Decl.,.) It would not be economical to pursue their claims individually, because litigation costs would greatly exceed their potential recovery. (See Daar, supra, Cal.d PAA s Case #PSC000

18 0 0 at pp. -.) Accordingly, a class action in this instance is superior to other available methods of resolution. In consideration of the foregoing, Plaintiff respectfully requests that the Court conditionally certify the Settlement Class, appoint Plaintiff J. James Milo as Class Representative, and appoint Eric J. Benink and Benjamin T. Benumof and the law firm of Krause, Kalfayan, Benink & Slavens, LLP as Class Counsel. C. THE NOTICE PLAN SATISFIES DUE PROCESS Cal. Rules of Court, Rule.(e) provides that the notice to the class must include: () A brief explanation of the case, including the basic contentions or denials of the parties; () A statement that the court will exclude the member from the class if the member so requests by a specified date; () A procedure for the member to follow in requesting exclusion from the class; () A statement that the judgment, whether favorable or not, will bind all members who do not request exclusion; and () A statement that any member who does not request exclusion may, if the member so desires, enter an appearance through counsel. The proposed Long Form Notice contains all of the required components. (See SA, Ex. C.) It also includes information regarding how Class Members may object to the Settlement and advises of the date of the Fairness Hearing. (Id.) The content of the notice should fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with the proceedings. (Wershba, supra, Cal.App.th at p. [citation omitted].) [M]embers of the class must receive the best notice practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. (Home Sav. & Loan Ass n v. Sup. Ct. () Cal.App.d 00, 0.) The standard is whether the notice has a reasonable chance of reaching a substantial percentage of the class members. (Cartt v. Superior Court () 0 Cal.App.d 0,.) But the trial court has virtually complete discretion as to the manner of giving notice to class members. (-Eleven Owners for Fair Franchising v. Southland Corp. (000) Cal.App.th, [citation omitted.].) As set forth above, current customers of the District will receive a Summary Notice via U.S. mail. The District will also publish a Publication Notice in the local newspaper, the Desert PAA s Case #PSC000

19 0 Sun, two times. Both the Short Form Notice and Publication Notice will direct persons to a Long Form Notice on a dedicated website at cvwdsettlement.com. (See Chavez v. Netflix, Inc. (00) Cal. App. th, [holding that a summary notice that directed class members who want more information to website containing more detailed notice was perfectly acceptable.].) CONCLUSION For all of the foregoing reasons, Plaintiff respectfully requests that the Court: () grant preliminary approval of the proposed Settlement; () conditionally certify a Settlement Class for settlement purposes; () appoint Plaintiff as the Class Representative and his attorneys as Class Counsel; () approve the proposed notice plan and forms of notice; and () schedule a Fairness Hearing and set deadlines as proposed by the parties. 0 DATED: May, 0 KRAUSE KALFAYAN BENINK & SLAVENS, LLP. Eric J. Benink, Esq. Attorneys for Plaintiff and Putative Class PAA s Case #PSC000