USA – CALIFORNIA Law and Practice Contributed by: Steven Kaufhold, Jonathan Gaskin and Urvashi Malhotra, Kaufhold Gaskin LLP
finds that denying discovery would unfairly prejudice the party or result in injustice. Where a party objects to the production of documents on the basis of privilege, such records may be with- held from discovery, even if they would otherwise be relevant. If a party objects to producing a document by claiming attorney-client privilege or work product privilege, CCP §2031.240 requires the party to iden- tify the specific document and state the basis for the objection. The most common way to do this is through a privilege log to be produced to the other side. California provides a mediation and settlement privi- lege that generally protects communications made during mediation and documents prepared for it from being used as evidence in court, as outlined in Cali- fornia Evidence Code §1119. 3.11 Remedies In California class actions, remedies can include mon- etary damages, statutory penalties, injunctive relief, restitution, and punitive damages. Remedies available in representative actions depend on the specific law under which the action is brought, but can include all of the above, as well as attorney fees and costs. 3.12 Settlement and ADR Mechanisms Many California Superior Courts offer ADR programs, such as early neutral evaluation, judicial settlement conferences, and volunteer mediation panels. Cali- fornia courts favour ADR and often order mediation (and provide low-cost options) and almost always order a mandatory settlement conference with a judge or experienced lawyer before trial. Parties can also choose private mediation or arbitration services outside the court system, which may involve hiring private mediators or arbitrators, who are often retired judges. Judicial approval is required for a California class or representative action settlement in a two-step pro- cess: first, preliminary approval, then final approval, following a formal noticed motion and hearing. The court examines if the settlement is fair, adequate, and reasonable to the class members, considering the risks and costs of litigation. The court may reject a settlement agreed to by the parties if it does not
believe that the settlement terms are in the best inter - ests of the class as a whole. Notice of the settlement must be provided to class members, who have the opportunity to opt out of the settlement. California allows arbitration provisions in contracts that can force class and representative actions into arbitration, often on an individual basis, which can eliminate the representative claims. Recent law pro- hibits clauses that require the application of law other than California’s or require that arbitration take place outside of California. Certain remedies, such as pub- lic injunctive relief under PAGA actions, cannot be waived through an arbitration agreement and must be sought (or defended against) in court. 3.13 Judgments and Enforcement of Judgments In a California class or representative action, the judg- ment can be a final judgment based on either a court- approved settlement or a verdict following a trial. The judgment may award monetary compensation or pro- vide injunctive relief if the plaintiff wins, and it can also issue a court-approved dismissal if the defendant prevails. The vast majority of class and representative actions reach judgment through pre-trial settlement, rather than a post-trial verdict. In a settlement, the court first evaluates the settle- ment’s overall fairness and provides preliminary approval. Then, class members are informed of the proposed settlement, their potential recovery, and how to object. Then, following a noticed motion, the court holds a hearing to consider any objections and to determine if the settlement is “fair, adequate, and reasonable.” If the court grants final approval, it enters a judgment based on the terms of the settle- ment, which include provisions for awarding relief to the class members. It often includes the retention of a professional claims administrator who is responsible for reviewing and verifying claims from class members and administering the settlement funds. Class mem- bers are allowed to “opt out” within a certain period of time and not be bound by the terms of the settle - ment. If class members do not timely “opt-out,” their claims are extinguished and their only remedies are those set forth in the court-approved settlement. The
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