Judge Bruce G. Iwasaki, Case 20STCV24075 2022-10-27 Tentative Ruling

Moving Parties: Plaintiffs Giovanni Mitchell; Ammon Mendes; Mackenzie Hernandez; and Elora Dorn

Tentative Ruling: The Court grants the Motion for Final Approval of Class and Representative Action Settlement, Attorneys’ Fees and Costs, and Class Representatives’ Enhancement Payments.

On February 18, 2022, Plaintiffs Giovanni Mitchell, Ammon Mendes, Mackenzie Hernandez, and Elora Dorn, filed their First Amended Class and Representative Action Complaint against restaurant Defendants the Madera Group, LLC; Tocaya Organica, LLC; Tocaya Management LLC; Toca Madera Weho LLC; Toca Madera Management LLC; and Noble 33 Management, LLC.

The Complaint alleged causes of action for Defendants’ failure to pay minimum wage; failure to pay overtime wages, failure to provide meal periods; failure to provide rest breaks; failure to provide accurate itemized wage statements; failure to pay all wages owed timely and upon separation of employment; failure to reimburse business expenses; failure to provide split shift premium pay; failure to provide reporting-time pay; violation of Labor Code section 1174, subdivision (d); violation of Business & Professions Code sections 17200, et seq.; and civil penalties pursuant to California’s Private Attorneys General Act (PAGA).

On June 29, 2022, the Court granted preliminary approval of class and representative action settlement. Plaintiffs now move for final approval.

The Court has previously considered the fairness of the settlement through evaluating whether the agreement was the result of arm’s length bargaining, sufficient investigation and discovery, and the experience of counsel. The only remaining factor is the number of objectors.

After the preliminary approval, in September 2022, the parties stipulated to an amendment on the schedule for funding. The Settlement Administrator, CPT Group, Inc. (CPT), subsequently performed an address search and mailed out the “Amended Class Notice” to all class members in both Spanish and English. (Orshansky Decl., ¶ 19.) A total of 229 Amended Class Notices had to be re-mailed based upon a skip trace search, request from counsel, or the class member. (Morales Decl., ¶ 8.)

Class members had until October 3, 2022, to submit disputes, request exclusion, or object to the settlement. (Orshansky Decl., ¶ 21.) There were no objections or disputes from any member of the class and only one member requested exclusion. (Id. at ¶ 22; Morales Decl., ¶¶ 9-11.) This resulted in a 99.96% participation rate and an average gross individual settlement payment of $303.77. (Morales Decl., ¶ 11.)

Based upon its prior finding that the Settlement was fair, adequate, and reasonable, and given the lack of objections, the Court grants final approval of the settlement.

The Court preliminarily approved $700,000.00 as 35% of the Gross Settlement Amount and costs not to exceed $35,000.00. The final request is for $700,000.00 in fees and a total of $33,560.39 in costs: $18,014.80 to CounselOne, P.C., and $15,545.59 to Custis Law, P.C.)

“[W]hen class action litigation establishes a monetary fund for the benefit of the class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created. The recognized advantages of the percentage method—including relative ease of calculation, alignment of incentives between counsel and the class, a better approximation of market conditions in a contingency case, and the encouragement it provides counsel to seek an early settlement and avoid unnecessarily prolonging the litigation [citations]—convince us the percentage method is a valuable tool that should not be denied our trial courts.” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 503.) “[T]rial courts . . . retain the discretion to forgo a lodestar cross-check and use other means to evaluate the reasonableness of a requested percentage fee.” (Id. at p. 506.)

Here, Plaintiffs’ counsel seeks attorneys’ fees in the amount of $700,000.00, representing 35% of the gross settlement amount of $2,000,000.00. Counsel has set forth their extensive experience and actions taken in litigating this case. (Orshansky Decl., ¶¶ 50-54; 62-74; Custis Decl., ¶¶ 4-17.) Such work included, for example, pre-litigation investigation, research as to the corporation’s structure and staffing, drafting pleadings, extensive legal research and analysis, interviewing Class Members, review of the corporation’s timekeeping software, and preparing and briefing three mediation sessions. (Orshansky Decl., ¶ 63.) Counsel also obtained a significant monetary recovery for the class, no objections were received, and the average individual settlement is higher than average payments in similar litigation cases. (Id. at ¶ 69.) The Court finds that the 35 percent award is reasonable and consistent with fee awards in class action cases.¿ (See¿Chavez v. Netflix, Inc.¿(2008) 162 Cal.App.4th 43, 66, fn. 11; see also Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 557, n.13 [“ ‘ “Empirical studies show that . . . fee awards in class actions average around one-third of the recovery” ’ ” with 25% being the benchmark].) The motion for attorney fees and costs is therefore granted.

The request for litigation costs in the total amount of $33,560.39 is granted. Counsel’s declaration and itemized ledger sufficiently justifies these costs. (Custis Decl., ¶ 29, Ex. 1; Orshansky Decl., ¶ 76, Ex. 4.)

Incentive payments are based on the expense and risk undertaken by named plaintiffs for the benefit of other class members. (Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399, 412.)

The Court grants the enhancement awards to the named Plaintiffs of $5,000.00 each, based on their prior declarations as to their work on this case. (Mitchell Decl., ¶ 12; Dorn Decl., ¶ 13; Hernandez Decl., ¶ 13; Mendes Decl., ¶ 13.) ¿¿¿

The Court preliminarily approved up to $60,000.00 for settlement administration costs. Plaintiffs now submit a declaration from Abel E. Morales, Director of Operations for CPT, who attests to the work and incurred costs. (Morales Decl., ¶ 12.) The Court grants the requested amount of $45,000.00.