Judge: Alison Mackenzie, Case: 21STCV06572, Date: 2023-11-17 Tentative Ruling
Case Number: 21STCV06572 Hearing Date: November 17, 2023 Dept: 55
NATURE OF PROCEEDINGS: Motion of Plaintiff for Final Approval of
Class Action and PAGA Settlement.
The Court will conduct the required fairness hearing,
and consider granting the motion. CRC Rules 3.769(h) and
3.771.
On 2/18/21, Plaintiff DELMY PORTILLO DE HERNANDEZ filed a Complaint alleging that, in response
to Plaintiff’s complaints about various wage-and-hour violations in employment,
Defendant retaliated against Plaintiff, and terminated the employment in
approximately March of 2020. The causes
of action are (1) Wrongful Termination; (2)
Retaliation (California Labor Code § 98.6 And 1102.5); (3) Violation Of California Labor Code §§ 510
And 1198 (Unpaid Overtime); (4)
Violation Of California Labor Code §§ 1194, 1197 And 1197.1 (Unpaid Minimum
Wages); (5) Violation Of California
Labor Code § 226.7 (Unpaid Rest Period Premiums); (6) Violation Of California Labor Code §§
226.7 And 512(A) (Unpaid Meal Period Premiums);
(7) Violation Of California Labor Code § 226(A) (Failure To Provide
Accurate Wage Statements); (8) Violation
Of California Labor Code §§ 201, 202 And 203 (Final Wages Not Timely Paid); (9) Failure To Provide Personnel Records; (10) Violation Of California Business And
Professions Code § 17200, Et Seq.; (11)
Private Attorney General Act, Labor Code §2698 Et Seq.
On 7/24/23, the Court granted in this case the Motion
for Order for Preliminary Approval of Class Action and PAGA Settlement.
In that ruling, describing much applicable law, the
Court also found that the subject PAGA settlement is fair, adequate, and
reasonable, meaningful and consistent with the purposes of PAGA, as to all
subject, affected employees, including because class counsel contemplated the
risks of proceeding with the PAGA action and the potential liability of
Defendant. Further, the Court found that the moving documents provided sufficient
information about the nature and magnitude of the claims, amounts in
controversy, the realistic range of outcomes of litigation, and the bases for
settlement amounts, to enable the Court to intelligently ascertain that the
proposed compromise is fair, adequate, and reasonable as to the class members. Additionally, the Court found that the
proposed notices to class members were clearly organized, uncomplicated and
clear, and sufficiently contained explanations of the settlement, procedures
for class members to object at a specified hearing, and information about the
effects of settling, in order to enable them to decide whether to accept the
benefits, to opt out, to do nothing, or to pursue claims individually.
Now, Plaintiff has filed a motion for final approval
of the PAGA and class action settlement. Plaintiff requests that the Court
grant the motion and enter Judgment in this case pursuant to the terms of the
Settlement. No statement of objection to
the parties’ settlement has been filed. The
Settlement provides for: (1) a non-reversionary Gross Settlement Amount of
$507,117.33; (2) attorneys’ fees in the amount of $169,039.11 (33 1/3% of the
Gross Settlement Amount); (3) actual litigation costs and expenses incurred by
Class Counsel in the amount of $12,303.47; (4) payment of $50,000 for PAGA
Penalties (75% of which shall be distributed to the LWDA and 25% to Aggrieved
Employees); (5) payment of $8,250 to the
Administrator, Phoenix Settlement Administrators; and (6) a requested class
representative service payment of $7,500 and plaintiff general release payment
of $10,000 to Plaintiff Portillo de Hernandez.
(Mot., 1:5-12.) Since the
preliminary approval order of 7/24/23, followed by notice to the class members,
three hundred sixty-four Class Members did not submit timely and valid Requests
for Exclusion and are therefore deemed Participating Class Members (Declaration of Jarrod Salinas, filed
9/29/23, ¶ 11).
Fairness
Before finally
approving a class-action settlement, the Court must at a hearing inquire into
the fairness of the settlement. CRC Rule
3.768-3:769; Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group
2023) §14:139.12.
There is a
presumption of fairness where settlements were reached through arm’s-length
bargaining, investigation and discovery were sufficient, counsel has experience
in similar litigation and the percentage of objections is small. Civ. Pro. Before Trial, supra, at §14:139.15 (citing, e.g., 7-Eleven Owners for
Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1146). In the context of a settlement agreement, the
test is not the maximum amount plaintiffs might have obtained at trial on the
complaint, but rather whether the settlement is reasonable under all of the
circumstances. Wershba v. Apple
Computer, Inc. (2001) 91 Cal.App.4th 224, 250.
In its broad
discretion, the Court considers the following factors:
·
Strength of plaintiff’s case;
·
risk of maintaining class action status through trial;
·
amount offered in settlement;
·
experience and views of counsel;
·
reaction of the class members.
In re Nordstrom
Com'n Cases (2010) 186 Cal.App.4th 576, 581;
Civ. Pro. Before Trial, supra,
at §14:139.13 (citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794,
1801; and In re Microsoft I-V Cases (2006) 135
Cal.App.4th 706, 723).
Here, the Court
finds that the paperwork shows that the settlement is fair, reasonable and
adequate, and that the particular claims are amenable to settlement and
certification on a class-wide basis pursuant to California Code of Civil
Procedure §382.
Notice
The Court finds that
reasonable and adequate notice of settlement was provided to the class
members. (E.g., declaration of Jarrod
Salinas, filed 9/29/23, ¶¶ 1-10). See generally Civ. Pro. Before Trial, supra, at §14:139.11.
Attorneys’ Fees
Furthermore, the
Court finds that the amount of attorneys’ fees and costs requested are fair and
reasonable.
As a method for
ascertaining reasonable attorney fees, the lodestar “is produced by multiplying
the number of hours reasonably expended by counsel by a reasonable hourly
rate.” Thayer v. Wells Fargo Bank (2001) 92
Standing To Object
No issue of standing has arisen before the hearing, but there may be that
question at the hearing. There is an “aggrieved party” requirement as to
approvals of class-action settlements, and nonmembers to a class action lack
standing to contest a class action settlement.
Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1131. Cf. Parker v. Bowron (1953) 40 Cal.2d 344, 353 (“cannot give himself standing to sue by
purporting to represent a class of which he is not a member.”). “A class member who appears at a fairness
hearing and objects to a settlement affecting that class member has standing to
appeal an adverse decision ….” Consumer
Cause, Inc. v. Mrs. Gooch's Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 395. Accord Wershba v. Apple Computer, Inc. (2001)
91 Cal.App.4th 224, 235. “The trial
court has discretion to permit a nonparty to intervene where: (1) the proper
procedures have been followed, (2) the nonparty has a direct and immediate
interest in the action, (3) the intervention will not enlarge the issues in the
litigation, and (4) the reasons for the intervention outweigh any opposition by
the parties presently in the action.” Chavez
v. Netflix, Inc. (2008) 162
Cal.App.4th 43, 51. “After the members
of the class have been properly notified of the action, they are required to
decide whether to remain members of the class represented by plaintiffs'
counsel and become bound by a favorable or unfavorable judgment in the action,
whether to intervene in the action through counsel of their own choosing, or
whether to ‘opt out’ of the action and pursue their own independent
remedies,…” Home Sav. & Loan
Assn. v. Sup.Ct. (1974) 42 Cal.App.3d 1006, 1010.
Conclusion
If the Court finally
approves the settlement after the required fairness hearing, it must enter a
judgment providing for retention of jurisdiction to enforce the settlement
terms. CRC Rules 3.769(h), 3.771.