Lopez-Burton, et. al. v. Town of Apple Valley (Case No. CIVDS1725027)
IF BETWEEN JULY 24, 2016 AND JULY 23, 2019, YOU HAD A SOLID WASTE/RECYCLING ACCOUNT WITH THE TOWN OF APPLE VALLEY, A LEGAL SETTLEMENT WILL AFFECT YOUR RIGHTS.
A California court authorized this notice. This is not a solicitation from a lawyer.
A settlement (the “Settlement”) has been proposed in the class action lawsuit referenced above pending in the Superior Court of the State of California in the County of San Bernardino (the “Action”). If the Court gives final approval to the Settlement, The Town of Apple Valley (the “Town”) will provide rate credits to current solid waste/recycling customers on their bills, and allow former customers to submit a claim for a refund, subject to the additional conditions explained in this notice.
Your legal rights are affected whether you act or don’t act. Read this notice carefully.
| YOUR LEGAL RIGHTS AND OPTIONS IN THIS SETTLEMENT | ||
REMAIN IN THE SETTLEMENT CLASS | CURRENT CUSTOMERS If you are a solid waste/recycling customer as of September 23, 2019, no action is required. You will receive an automatic credit on your trash bill through June 2021. The amount of the credit depends on the type of rate you pay. Some of the common rates and the projected credits are set forth in Section 7 below.
FORMER CUSTOMERS If you are not a solid waste/recycling customers as of September 23, 2019, you can submit a claim form to receive a lump sum refund. An estimate of the refund amount is described in Section 7 below. Visit the Settlement website located at www.AVTrashSettlement.com to obtain a Claim Form. |
NO ACTION REQUIRED
Deadline: September 23, 2019 |
| EXCLUDE YOURSELF | If you exclude yourself from the Settlement, you will not receive any value from the Settlement. Excluding yourself is the only option that allows you to bring or maintain your own lawsuit against the Town regarding the allegations in the Action ever again. | Deadline:_ September 23, 2019 |
| OBJECT | You may write to the Court about why you object to (i.e., don’t like) the terms of the Settlement or Class Counsel’s application for attorney’s fees and reimbursement of expenses and think it shouldn’t be approved. Submitting an objection does not exclude you from the Settlement and if the Court approves the Settlement, you will still be bound by its terms. | Deadline: September 23, 2019 |
| GO TO THE “FAIRNESS HEARING” | The Court will hold a “Fairness Hearing” to consider the Settlement, Class Counsel’s request for attorneys’ fees and reimbursement of expenses for the attorneys who brought the Action, and the Representative Plaintiff’s request for a service award for bringing the Action.
You may, but are not required to, attend or speak at the Fairness Hearing. If you intend to speak at the Fairness Hearing, you must indicate your intent to do so on the Objection Form (see Section 15 below.) | Hearing Date and Time: October 16, 2019 at 8:30 a.m.
Deadline: September 23, 2019 |
These rights and options—and the deadlines to exercise them—are explained in more detail below.
The Court in charge of this Action has preliminarily approved the Settlement and must decide whether to give final approval to the Settlement. The relief provided to Class Members will be provided only if the Court gives final approval to the Settlement.
WHAT THIS NOTICE CONTAINS
BACKGROUND INFORMATION
2. What is this lawsuit about?
3. Why is this a class action?
5. How do I know if I am part of the Settlement?
6. I’m still not sure if I am included.
THE PROPOSED SETTLEMENT
7. What relief does the Settlement provide to the Class Members?
HOW TO REQUEST A refund for former customers – SUBMITTING A CLAIM FORM
THE LAWYERS IN THIS CASE AND THE REPRESENTATIVE PLAINTIFF
10. Do I have a lawyer in this case?
11. How will the lawyers be paid?
12. Will the Representative Plaintiff receive any compensation for her efforts in bringing this Action?
DISMISSAL OF ACTION AND RELEASE OF ALL CLAIMS
13. What am I giving up to obtain relief under the Settlement?
HOW TO EXCLUDE YOURSELF FROM THE SETTLEMENT
14. How do I exclude myself from the Settlement?
HOW TO OBJECT TO THE SETTLEMENT
15. How do I tell the Court that I disagree with the Settlement?
16. What is the difference between excluding myself and objecting to the Settlement?
FAIRNESS HEARING
17. What is the Fairness Hearing?
18. When and where is the Fairness Hearing?
19. May I speak at the hearing?
ADDITIONAL INFORMATION
20. How do I get more information?
21. What if my address or other information has changed or changes after I submit a Claim Form?
You received a notice because a Settlement has been reached in this Action. According to the Town’s records you might be a member of the Settlement Class and may be eligible for the relief detailed below.
This Notice explains the nature of the Action, the general terms of the proposed Settlement, and your legal rights and obligations. To obtain more information about the Settlement, including information about how you can see a copy of the Settlement (which defines certain capitalized terms used in this Notice), see Section 20 below.
On December 20, 2017, Plaintiff Christina Lopez-Burton (the “Representative Plaintiff”) filed a lawsuit against the Town on behalf of herself and all others similarly situated. The lawsuit alleges that the Town’s rates for solid waste/recycling violate California Constitution article XIII D, because the rates include amounts that are cannot be legally charged for solid waste/recycling fees. A copy of the lawsuit can be found HERE or at www.AVTrashSettlement.com.
The Town denies each and every one of the allegations of unlawful conduct, any wrongdoing, and any liability whatsoever, and no court or other entity has made any judgment or other determination of any liability. The Town further denies that any Class Member is entitled to any relief and, other than for settlement purposes, that this Action is appropriate for certification as a class action.
The issuance of this Notice is not an expression of the Court’s opinion on the merits or the lack of merits of the Representative Plaintiff’s claims in the Action.
In a class action lawsuit, one or more people called “Representative Plaintiff(s)” (in this Action, Christina Lopez-Burton) sue on behalf of other people who allegedly have similar claims. For purposes of this proposed Settlement, one court will resolve the issues for all Class Members. The party sued in this case – the Town of Apple Valley – is called the Defendant.
The Representative Plaintiff has made claims against the Town. The Town denies it has done anything wrong or illegal and admits no liability. The Court has not decided that the Representative Plaintiff or the Town should win this Action. Instead, both sides agreed to the Settlement to avoid the cost, risks, and delay of continued litigation.
All persons (which includes entities such as firms, companies, corporations, associations, and public entities) who, between July 24, 2016 and July 23, 2019 were Account Holders, but excluding (a) any officer or council member of the Town; (b) any judge assigned to hear this case; and (c) persons who timely and properly exclude themselves from the Class as provided in this Agreement.
An Account Holder means a person or entity (i.e. business) who holds a solid waste / recycling account in the Town of Apple Valley.
If you are still not sure whether you are included in the Settlement, you may contact the Town at (760) 240-7000, ext. 7708.
The Town has agreed to create a Common Fund in the gross amount of Three Million One Hundred Fifty Thousand and no cents ($3,150,000.00) that will be used to pay all administration and publication notice costs, attorney’s fees and expenses to Class Counsel, and a service award to the Representative Plaintiff. All such fees and costs must be approved by the Court. Administration costs are estimated to be $7,873. The costs of publication are estimated to be $1,478. Class Counsel intends to request attorneys’ fees in the amount of $1,050,000 and reimbursement of expenses in the amount of approximately $12,994. The Representative Plaintiff intends to request $5,000 as a service award. If the Court approves the requested fees and reimbursement of expenses, the balance of the Common Fund (“Net Common Fund”) will be approximately $2,072,656.
The Net Common Fund will be distributed to former solid waste / recycling customers who no longer hold an account as of September 23, 2019 if they submit a timely claim form. The balance of the Net Settlement Fund will be distributed as automatic credits to current solid waste / recycling customers on their monthly or bi-monthly bills beginning approximately December 2019 through June 2021.
The amount of the monthly credit depends on the number of claims by former customers and the billing rate for the type of service you receive. The parties estimate that the monthly credits will be roughly 10% of your trash and recycling fees. The most common services and the monthly credits for those services are estimated as follows:
Residential Services
Residential 40 Gallon Trash Barrels $2.30 monthly credit
Residential 60 Gallon Trash Barrels $2.43 monthly credit
Residential 95 Gallon Trash Barrels $2.67 monthly credit
Commercial Services / Multifamily Services
1.5 yard Trash Bin 1x per week $6.37 monthly credit
2 yard trash bin 1x per week $8.43 monthly credit
3 yard trash bin 1x per week $12.55 monthly credit
3 yard trash bin 2x per week $24.91 monthly credit
Former customers who submit valid and timely claims will receive a refund check in the amount similar current customers will receive as a monthly credit [see above] multiplied by the number of months the former customer had an account during the Class Period July 24, 2016 through July 23, 2019 up to a maximum of 18 months.
PLEASE NOTE THAT THE SETTLEMENT REQUIRES THAT THE ENTIRETY OF THE NET COMMON FUND BE DISTRIBUTED BY JUNE 30, 2021.
In addition to these payments, the Town has agreed to not increase its solid waste and recycling collection fees and charges as established in its 2014 Rate Resolution until July 1, 2021
If you are a Class Member and you are a solid waste/recycling customer after September 23, 2019, your credits will be automatically applied to your bills. You need not take further action
If you are a Class Member and you are no longer a solid waste/recycling customer as of September 23, 2019, you must submit a completed Claim Form in order to receive the benefits of this Settlement. A Claim Form is available HERE or at the website www.AVTrashSettlement.com. Read the instructions carefully, fill out the form, and postmark it by September 23, 2019.
As described in Sections 17 and 18, the Court will hold a hearing on October 16, 2019 at 8:30 a.m., to decide whether to approve the Settlement. You can continue to monitor the progress of the case at the website www.AVTrashSettlement.com.
Assuming that the Court approves the Settlement on October 16, 2019, refunds for former customers are expected to be mailed no later than November 20, 2019 and the monthly bill credits for current customer should begin being applied by December 2019 and will continue until June 2021.
The Court has ordered Eric J. Benink, Esq. of Benink & Slavens, LLP and Prescott Littlefield, Esq. of Kearney Littlefield, LLP (collectively “Class Counsel”) to represent the interests of the Class. Their contact information is below. You will not be separately charged for these lawyers. If you want to be represented by your own lawyer, you may hire one at your own expense.
CLASS COUNSEL
BENINK & SLAVENS, LLP
Eric J. Benink, Esq.
550 West C Street, Suite 530
San Diego, California 92101
(619) 369-5252(ph)
eric@beninkslavens.com
KEARNEY LITTLEFIELD, LLP.
Prescott W. Littlefield, Esq.
3436 N. Verdugo Rd.
Suite 230
Glendale, CA 91208
(213) 374-1900 (ph)
pwl@kearneylittlefield.com
Class Counsel will apply for attorneys’ fees and costs, subject to Court approval. Class Counsel expect to apply for $1,050,000 in attorneys’ fees and $12,994 in costs. Class Counsel will file with the Court their motion for award of attorneys’ fees and reimbursement of expenses and Class Representative’s service award no later than September 9, 2019. After that date, you may view the motion at www.AVTrashSettlement.com. You will not be required to pay any attorneys’ fees or costs directly, as they will be payable from the Settlement Fund paid by the Town. Please see paragraph 14 of the Settlement Agreement, available HERE, for additional details.
Christina Lopez-Burton, the Representative Plaintiff, will request a service award of up to $5,000 for her services as class representatives and her efforts in bringing the Action. The Court will make the final decision as to the amount to be paid to the class representative and that amount will be paid from the Settlement Fund.
If the Court approves the proposed Settlement, unless you exclude yourself from the Settlement, you will be releasing your claims against the Town that formed the basis of this Action. This generally means that you will not be able to file a lawsuit, continue prosecuting a lawsuit, or be part of any other lawsuit against the Town regarding the claims in the Action. The entirety of the release from the Settlement to which you will be subject is as follows:
In consideration for the Settlement, Burton and each Class Member, on behalf of themselves and their heirs, executors, administrators, assigns, agents, servants, representatives, predecessors, and successors (hereafter collectively “Releasors”) fully release and discharge the Town and all of its employees, council members, officers, and agents (“Releasees”) from all rights, claims, and actions they and any of the Releasors now have, or may have in the future, against the Releasees arising out of, or relating to, the facts and circumstances giving rise to the Lawsuit or Claim, or arising out of, or relating to, claims that the rates, fees and charges adopted via through Resolution No. 2014-33 violate Proposition 218 and/or Proposition 26. For the sake of clarity, this release does not extend to trash and recycling rates, fees, and charges that the Town adopts in the future.
Except as otherwise provided in this Agreement, the release contained herein and made by this Agreement is full and complete, and Burton and each Class Member specifically agrees to waive the provisions of Civil Code § 1542 which provides that:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release, and that if known by him or her would have materially affected his or her settlement with the debtor or released party.
Burton and each Class Member specifically acknowledges the effect of such a waiver and this Agreement shall act as a release of all such claims, whether such claims are currently known, unknown, foreseen or unforeseen.
You may exclude yourself from the Class and the Settlement. If you want to be excluded, you must send the Opt-Out Form available HERE or at www.AVTrashSettlement.com, postmarked no later than September 23, 2019 to Class Counsel at:
CLASS COUNSEL
BENINK & SLAVENS, LLP
Eric J. Benink, Esq.
550 West C Street, Suite 530
San Diego, California 92101
If you timely request exclusion from the Class, you will be excluded from the Class, you will not receive credits or a refund under the Settlement, you will not be bound by the judgment entered in the Action, and you will not be precluded from prosecuting any timely, individual claim against the Town based on the conduct complained of in the Action.
At the date, time, and location stated in Section 18 below, the Court will hold a Fairness Hearing to determine if the Settlement is fair, reasonable, and adequate, and to also consider Class Counsel’s request for an award of attorneys’ fees and reimbursement of expenses, and service awards to the Representative Plaintiff.
If you wish to object to the fairness, reasonableness, or adequacy of the Settlement, Class Counsel’s request for attorney’s fees and reimbursement of expenses, or the Representative Plaintiff’s request for a service award, you must file a written objection with the Court and serve on Class Counsel and Defense Counsel at the addresses set forth below no later than (i.e., postmarked by) September 23, 2019.
COURT
Clerk of the Court
Superior Court of the State of California, County of San Bernardino
Department S26
247 West Third Street
San Bernardino, California 92415
CLASS COUNSEL
BENINK & SLAVENS, LLP
Eric J. Benink, Esq.
550 West C Street, Suite 530
San Diego, California 92101
DEFENSE COUNSEL
BEST BEST & KRIEGER, LLP
Richard Egger, Esq.
2855 E. Guasti Road
Suite 400
Ontario, CA 91761
Any written objections must be made on the Objection Form, available HERE or at www.AVTrashSettlement.com. You may, but need not, submit your objection through counsel of your choice. If you do make your objection through an attorney, you will be responsible for your personal attorney’s fees and costs.
Class Members have the option to appear at the Fairness Hearing, either in person or through personal counsel hired at the Class Member’s expense, to object to the fairness, reasonableness, or adequacy of the Settlement, the award of attorneys’ fees and costs, or the proposed service awards to the Class Representative. However, Class Members (with or without their attorneys) intending to make an appearance at the Fairness Hearing must so inform the Parties and the Court on or before September 23, 2019 by indicating such on the Objection Form.
Objecting is simply telling the Court that you disagree with something about the Settlement. You can object only if you stay in the Settlement Class. Excluding yourself is telling the Court that you don’t want to be part of the Settlement Class. If you exclude yourself, you have no basis to object because the Settlement no longer affects you.
The Court has preliminarily approved the Settlement and will hold a hearing to decide whether to give final approval to the Settlement. You may attend, but you do not have to. The purpose of the Fairness Hearing will be for the Court to determine whether the Settlement should be approved as fair, reasonable, adequate, and in the best interests of the Settlement Class; to consider the award of attorneys’ fees and reimbursement of expenses to Class Counsel; and to consider the request for service award to the Representative Plaintiff. At the hearing, the Court will be available to hear any objections and arguments concerning the proposed Settlement’s fairness.
On October 16, 2019 at 8:30 a.m. (Pacific), a hearing will be held on the fairness of the proposed Settlement. The hearing will take place before the Honorable David Cohen in Department S26 of the San Bernardino Justice Center, Superior Court for the State of California, San Bernardino County, located at 247 West Third Street, San Bernardino, CA 92415. The hearing may be postponed to a different date or time or location without notice. Please check www.AVTrashSettlement.com for any updates about the Settlement generally or the Fairness Hearing specifically. If the date or time of the Fairness Hearing changes, an update to the Settlement website will be the only way you will be informed of the change.
At the Fairness Hearing, the Court will be available to hear any objections and arguments concerning the fairness of the Settlement. As described above in Section 15, you may speak at the Fairness Hearing only if you have indicated your intention to do so on the Objection Form.
If you have requested exclusion from the Settlement, you may not speak at the hearing.
To see a copy of the Settlement Agreement, the Court’s Preliminary Approval Order, Class Counsel’s application for attorneys’ fees and reimbursement of expenses, and the Class Representative’s request for a service award, and the operative complaint filed in the Action, please visit: www.AVTrashSettlement.com. Alternatively, you may view the complete file at the Clerk of the Court’s office at 247 West Third Street, San Bernardino, CA 92415. The Clerk will tell you how to obtain the file for inspection and copying at your own expense. Please note that the description of this Action is general and does not cover all of the issues and proceedings that have occurred.
It is your responsibility to inform the Claims Administrator of your updated information. You may do so at the address below:
Town of Apple Valley Trash Settlement
P.O. Box 7208
Orange, CA 92863
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DO NOT ADDRESS ANY QUESTIONS ABOUT THE SETTLEMENT OR THE LITIGATION TO THE CLERK OF THE COURT OR THE JUDGE, DEFENDANT, OR DEFENDANT’S COUNSEL.