Martorana v. Marlin & Saltzman, 2009 WL 1875681 (Cal. Ct. App. 2009)

Ron Martorana was a class member in a wage and hour class action that had been filed against his former employer, Allstate Insurance Company. The Los Angeles Superior Court approved a settlement of the class action, but Martorana did not recover any portion of the settlement because he had failed to timely submit a claim form. Although Martorana received notice of the settlement and the accompanying claim form, he failed to submit the form because he had been diagnosed with prostate cancer and was experiencing the physical effects of his diagnosis and treatment. Martorana subsequently filed this action against Allstate and the various law firms that had prosecuted the class action, alleging that defendants were negligent in failing to take reasonable steps to contact him about his failure to file a claim and to make sure his claim form was timely submitted. The trial court dismissed that action against Allstate and granted Allstate’s request for sanctions against Martorana and his attorney. Martorana filed an amended complaint asserting malpractice against class counsel, but the trial court sustained class counsel’s demurrer to Martorana’s amended complaint as well, finding that “it would defeat the purpose of mass notification to a large number of class members if, after written notice, Class Counsel were required to follow up…with every class member who neglected to file a timely claim.” The Court of Appeal affirmed dismissal of Martorana’s claims but reversed the award of sanctions to Allstate because of its failure to comply with the safe harbor provisions of Cal. Code Civ. Proc. § 128.7. Cf. In re Consumer Privacy Cases, 2009 WL 1863730 (Cal. Ct. App. 2009) (trial court did not abuse its discretion in approving attorney’s fees award to class counsel and in using lodestar method); Hernandez v. Vitamin Shoppe Indus. Inc., 2009 WL 1679937 (Cal. Ct. App. 2009) (class counsel’s communications with conditionally certified and separately represented class members urging them to opt-out of settlement were properly enjoined by trial court).