Pleading form with 28 lines

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William M. Krieg, SBN 066485
Eric M. Kapigian, SBN 238733
KEMNITZER, BARRON & KRIEG, LLP
2014 Tulare Street, Suite 700
Fresno, CA 93721
Telephone (559) 441-7485
Facsimile (559) 441-7488
Attorneys for ELIZABETH SEE, individually, and on behalf of the class
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SUPERIOR COURT OF CALIFORNIA
COUNTY OF TULARE
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Plaintiff,
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vs.
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ELIZABETH SEE, and DOES 1-5, Inclusive, )
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Defendants.
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AND RELATED CROSS-ACTION.
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TUCOEMAS FEDERAL CREDIT UNION,
Case No.: 11-242330
[PROPOSED] ORDER FOR PRELIMINARY
APPROVAL OF SETTLEMENT, SETTING
FINAL APPROVAL HEARING DATE, AND
APPROVAL OF SETTLEMENT NOTICE
DATE:March 1, 2016
TIME:8:30 a.m.
DEPT: 7
JUDGE: Hon. Bret Hillman
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This matter is before the Court on the Motion of cross-complainant, Elizabeth See
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("SEE"), pursuant to California Code of Civil Procedure section 382 and Rule 3.769 of the
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California Rules of Court, for an order conditionally certifying a class for settlement purposes
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only and granting preliminary approval of the settlement of this matter in accordance with the
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Settlement Agreement and Release dated January 15, 2015 (the "Agreement"), a copy of which
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is attached hereto as Exhibit 1 and incorporated herein. The Agreement sets forth the terms and
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conditions for a proposed settlement of this lawsuit by and between cross-defendant Tucoemas
Federal Credit Union ("TFCU") and SEE, on her own behalf and on behalf of the Settlement
[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 1
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Class. Having read and considered the Agreement, as well as the proposed Class Notice, the
memorandum in support of the motion and the Declarations of Valerie Stephens , Elizabeth See,
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and William M. Krieg, and having heard the parties and given due consideration, the Court
grants the motion for certification of a class for settlement purposes only and for preliminary
approval of this class-action settlement.
IT IS THEREFORE ORDERED THAT:
1.
This Order incorporates by reference the definitions in the Agreement, and all
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capitalized terms used in this Order will have the same meanings as set forth in the Agreement,
unless otherwise defined in this Order.
2.
For settlement purposes only, the Court conditionally certifies the following
Settlement Class pursuant to California Code of Civil Procedure section 382 and Code of Civil
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Procedure Rule 3.769.:
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All persons who purchased a vehicle in California under a conditional
sales contract that was assigned to TUCOEMAS FEDERAL CREDIT UNION
(TFCU) and/or its associates, affiliates, and subsidiaries, and to whom TFCU sent
a notice of intent to resell the repossessed or surrendered vehicle pursuant to the
Rees-Levering Automobile Sales Finance Act following the repossession or
voluntary surrender of the vehicle, and from TFCU claims that a deficiency was
owed, beginning four years prior to filing of this action, or April 26, 2007 until
September 30, 2013, except that the following persons are not included with the
Settlement Class: (a) Borrowers against whom a judgment for deficiency was
obtained prior to the filing of SEE’s Cross-Complaint, or April 26, 2011; (b)
Borrowers whose deficiencies were discharged in bankruptcy with no payments
having been made to TFCU; (c) Borrowers who are currently Deceased; and (d)
Borrowers who entered into written settlement agreements with TFCU prior to
April 26, 2011, or in settlement of pending litigation in which the Borrower was
represented by counsel.
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3.
The Court conditionally finds, solely for purposes of this settlement, that: (a) the
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Settlement Class is ascertainable and its members are so numerous that joinder of all Settlement
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[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 2
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Class Members in the action is impracticable; (b) there are questions of law or fact common to
the Settlement Class for purposes of determining whether this settlement should be approved; (c)
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the claims of SEE are typical of the claims of absent members of the Settlement Class; (d) SEE
and Class Counsel will fairly and adequately protect the interests of the Settlement Class
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Members in connection with the proposed settlement and satisfy the requirements of California
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Code of Civil Procedure section 382; (e) for purposes of determining whether the settlement is
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fair, reasonable and adequate, common questions of law and fact appear to predominate over
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questions affecting only individual Settlement Class Members; and (f) a class action is superior
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to other available methods for the fair and efficient adjudication of the controversy, considering:
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(i) the interests of the Settlement Class Members in individually controlling the prosecution of
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separate actions; (ii) the extent and nature of any litigation concerning the controversy already
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commenced by or against Settlement Class Members; (iii) the desirability or undesirability of
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continuing the litigation of these claims in this particular forum; and (iv) the difficulties likely to
be encountered in the management of this action as a class action.
4.
Elizabeth See is hereby designated as representative of the conditionally certified
Settlement Class, and William M. Krieg of Kemnitzer, Barron & Krieg, LLP is appointed as
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Class Counsel.
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The Parties are hereby authorized to retain KCC as Class Administrator to
administer the notice procedures and process requests for exclusion and other aspects of this
proposed settlement, as set forth in the Agreement and the Class Notice.
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6.
The Court approves, as to form and content, the Class Notice in the format
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attached to the Agreement as Exhibit B. The Court further finds that mailing of the Class Notice
to Settlement Class Members by the Class Administrator in the manner set forth in §§ 3.09 and
[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 3
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3.10 of the Agreement constitutes the best notice practicable under the circumstances, constitutes
valid, due and sufficient notice to all persons entitled thereto and meets the requirements of due
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process under California law and the United States Constitution.
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Settlement Class Members wishing to exclude themselves from the settlement
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must mail a written request for exclusion to Class Administrator, KCC, at the address designated
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in the Notice, by first class mail postmarked not later than _______________, 2016 [60 days
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after class notice mailed]. Exclusion requests will not be valid if mailed to any other address.
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Each request for exclusion must: (1) be signed and dated; (2) include the Settlement Class
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Member's full name, address, and telephone number; and (3) a written statement that the
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Settlement Class member wishes to be excluded from this settlement. No request for exclusion
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will be valid unless all of the foregoing information is included. The Court will exclude from the
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settlement any Settlement Class Member who timely and properly requests exclusion.
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8.
Any Settlement Class Member who has not timely and properly requested
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exclusion may object to the fairness, reasonableness or adequacy of the settlement or to any
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request for an award of attorneys' fees, costs and expenses or the service award. Settlement Class
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Members may do so either on their own or through counsel hired at their own expense. Any
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Settlement Class Member who wishes to assert an objection must file a written objection with
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this Court on or before __________________, 2016, and mail a copy of the objection by first
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class mail, postmarked on or before _____________, 2016, to Class Administrator as directed in
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the Notice. Each objection must contain: (1) the Settlement Class Member's full name, address,
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and telephone number; (2) be signed and dated; and (3) include a clear statement of each
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objection, and a clear statement of all supporting evidence and briefing to be considered in
support of the objection. Any Settlement Class Member who does not submit an objection in the
[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 4
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manner provided herein shall be deemed to have waived any objection to the settlement and shall
forever be foreclosed from making any objection to certification of the Settlement Class, to the
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fairness, adequacy or reasonableness of the settlement and to any attorneys' fees, costs and
expenses or service award to be approved by the Court. Any Settlement Class Member who
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timely files and serves a written objection may also appear at the Final Approval Hearing, either
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in person or through counsel hired at the Settlement Class Member's expense. Settlement Class
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Members who intend to appear and be heard at the Final Approval Hearing in person or through
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counsel must state their intention to appear in their written objection. Any Settlement Class
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Member who does not timely file and serve a written objection and a notice of intention to
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appear shall not be permitted to object or be heard at the Final Approval Hearing or otherwise
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contest approval of the settlement or to appeal from any orders or judgments of the Court.
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9.
The parties shall file and serve responses to objections, if any, not later than seven
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(7) days before the Final Approval Hearing
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Settlement Class Members who have not requested exclusion may enter an
appearance in this litigation through counsel of their own choice, at their own expense. If they do
not enter such an appearance, they will be represented by Class Counsel.
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11.
The Court hereby preliminarily finds that the Agreement as set forth in Exhibit A
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with the attachments is in all respects fair, adequate and reasonable and directs the parties to
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effectuate a settlement according to its terms. The Court further finds it is within the range of
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possible approval and appears to have been reached as a result of informed and non-collusive
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negotiation with JAMS mediator Hon. Edward Infante. The Court finds that the parties have
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conducted extensive investigation, research and work on this file and the attorneys appear to
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[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 5
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have been able to reasonably evaluate the respective positions leaving a sufficient basis for
ordering Notice to the Settlement Class of the proposed settlement.
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12.
The Court finds that settlement now will avoid additional and potentially
substantial litigation costs as well as delays and risks to the parties.
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A Final Approval Hearing shall be held on _______________, 2016 at 8:30 a.m.
before the Honorable Bret Hillman in Courtroom 7 of the Superior Court of the State of
California, County of Tulare, 221 S. Mooney Blvd., Visalia, California 93291, to determine: (a)
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whether the proposed settlement of this action on the terms and conditions provided for in the
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Agreement is fair, reasonable and adequate and should be approved by the Court and whether a
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judgment approving the settlement should be entered; and (b) whether and in what amount an
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award of attorneys' fees, costs and expenses should be made to Class Counsel and whether a
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service award should be awarded to SEE. SEE shall file her Motion for Final Approval and all
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supporting papers not later than sixteen (16) court days before the Final Approval Hearing. The
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Court expressly reserves its right to adjourn the Final Approval Hearing from time to time
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without further notice other than to counsel of record and to approve the proposed Agreement
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and applications for attorneys' fees, costs and expenses and service award at or after the
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originally scheduled Final Approval Hearing.
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If the Court gives final approval of this settlement, all Settlement Class Members
who have not timely requested exclusion from the Settlement Class shall be barred from
asserting any Released Claims against the Released Parties, as defined in the Agreement.
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15.
In the event the settlement is not finally approved by the Court, or for any reason
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the parties fail to obtain a Final Approval Order and Final Judgment as contemplated in the
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[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 6
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Agreement, or the Agreement is terminated pursuant to its terms for any reason, then the
following shall apply:
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(a)
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prejudice, to the status quo ante as of the date of the Agreement as if the Agreement had not been
entered into; and
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the Agreement shall be null and void, and all parties shall return, without
(b)
any certification of the Settlement Class will be void, no doctrine of
waiver, estoppel or preclusion shall be asserted in any litigated certification proceedings in the
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Action, and the Agreement and its existence shall be inadmissible to establish any fact relevant
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to class certification or any alleged liability of cross-defendants for the matters alleged in the
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Action or for any other purpose.
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16.
All proceedings in the action are stayed until further order of the Court, except as
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may be necessary to implement the terms of the settlement. Pending final determination of
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whether the settlement should be approved, neither SEE nor any Settlement Class Member,
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either directly, representatively or in any other capacity, shall commence or prosecute against
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any of the Released Parties any action or proceeding in any court or tribunal asserting any of the
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Released Claims. While final settlement is pending, the confidentiality terms of § 8.07 of the
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Settlement Agreement should be maintained.
Summary of Applicable Dates
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1.
Preliminary Order served on parties:
2.
Notice to be sent by:
March 31, 2016
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[30 days after Preliminary Approval]
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3.
Exclusion from the class
May 31, 2016
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[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 7
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[60 days after class notice mailed]
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Objection to the Settlement
May 31, 2016
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[60 days after class notice mailed
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5.
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Motion for Final Approval filed by:
July 25, 2016
[16 court days prior to Final Approval Hearing]
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Motion for Attorney’s Fees & Costs filed by:
July 25, 2016
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[16 court days prior to Final Approval Hearing]
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7.
August 9, 2016
[7 days before Final Approval Hearing]
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Responses to Objections
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Final Approval Hearing
August 16, 2016
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IT IS SO ORDERED.
DATED:
__________________________________
HON. BRET HILLMAN
JUDGE OF THE SUPERIOR COURT
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[PROPOSED] ORDER FOR PRELIMINARY APPROVAL OF SETTLEMENT, SETTING FINAL
APPROVAL HEARING DATE, AND APPROVAL OF SETTLEMENT NOTICE - 8