Judge: Elaine Lu, Case: 20STCV21009, Date: 2024-11-21 Tentative Ruling

Case Number: 20STCV21009    Hearing Date: November 21, 2024    Dept: 9

Final Approval of Class Action Settlement

Department SSC-9

Castillo, et al. v. Selig Parking, Inc.

Case No. 20STCV21009

Hearing: November 21, 2024

FINAL RULING

The Parties’ Motion for Final Approval of Class Action Settlement is GRANTED as the settlement is fair, adequate, and reasonable. 

The essential terms are:

1.      The Gross Settlement Amount (“GSA”) is $850,000, non-reversionary. (¶3.1)

2.      The Net Settlement Amount (“Net”) ($333,500) is the GSA minus the following:

o   $283,333.33 (33%) for attorney fees (¶3.2.2);

o   $55,099.60 for litigation costs (Ibid.);

o   $7,500 to each representative (Mario Castillo and Juan Pacheco) for a total of $15,000 for Service Payments to the Named Plaintiffs (¶3.2.1); and

o   $16,500 for settlement administration costs (¶3.2.3).

3.      Plaintiffs’ release of Defendants from claims described herein.

There is one opt out.

Within 14 days, Plaintiff’s counsel shall file a single document that constitutes both a proposed Order and Judgment, consistent with this ruling containing all requisite terms, including the class definition, release language, and a statement of the number and identity of class members who requested exclusion.

No later than January 21, 2025, Class Counsel must give notice to the class members pursuant to California Rules of Court, rule 3.771(b) and to the LWDA, if applicable, pursuant to Labor Code §2699 (1)(3).

No later than May 18, 2026, Class Counsel must file a Final Report re: Distribution of the settlement funds.

The Court hereby sets a Non-Appearance Case Review for May 26, 2026, 8:30 a.m.,  Department 9.

BACKGROUND

This is a wage and hour class action. Defendant is a Georgia corporation that operates valet parking, event parking, facility management, parking consulting and property analysis, parking management services and technology, and staffing services, throughout California, at approximately 21-25 different locations.

On May 29, 2020, Plaintiff Castillo filed a proposed class action against Defendant, alleging the following claims: (1) failure to pay all wages; (2) non-payment of overtime compensation; (3) failure to provide proper meal periods; (4) failure to provide proper rest periods; (5) failure to reimburse business expenses; (6) failure to pay wages of terminated or resigned employees; (7) failure to properly maintain accurate itemized wage statements; and (9) violation of California Business & Professions Code § 17200 et seq. 

On April 1, 2021, Plaintiff Castillo filed a first amended complaint (“FAC”), adding Plaintiff Pacheco as a named plaintiff and a cause of action pursuant to Labor Code § 2699 et seq. (the “PAGA”).

On March 23, 2023, the Court granted Plaintiffs’ Class Cert Motion. The Court certified the following class and ten (10) subclasses: “All current and former Parking Attendants and Shift Leaders employed by Selig Parking, Inc. dba AAA Parking at any time during the period from May 29, 2016, through the date of the order granting class certification.” 

On August 29, 2023, the Parties attended an in-person private mediation with the Hon. Daniel Buckley (Ret.) but were unable to reach a settlement. The Parties continued to have settlement discussions with the assistance of the mediator, which included a mediator’s proposal, ultimately accepted by the parties. On November 28, 2023, counsel filed a fully executed long form Settlement Agreement with the court, attached as Exhibit 1 to the Declaration of Sam Kim (“Kim Decl.”) ISO Preliminary Approval. 

On April 4, 2024, the court issued a checklist of items for the parties to address and continued preliminary approval. In response, on May 29, 2024 counsel filed a fully executed Amended Settlement Agreement attached as Exhibit B to the Supplemental Declaration of Sam Kim (“Kim Supp. Decl.”) ISO Preliminary Approval.

Preliminary Approval was granted on June 26, 2024. Notice was given to the Class Members as ordered. (See Declaration of Kevin Lee (“Lee Decl.”).

Now before the Court is the motion for final approval of the settlement agreement.

CLASS DEFINITION AND ESSENTIAL TERMS OF SETTLEMENT AGREEMENT

The essential terms are as follows:

·         “Class” means all non-exempt parking attendants and shift leaders who worked for Defendant in California at any time during the Class Period. (Settlement Agreement, ¶1.5.)

o   “Class Period” means the period from May 29, 2016 to March 23, 2023. (¶1.12)

·         “Aggrieved Employee” means all non-exempt parking attendants and shift leaders who worked for Defendant in California at any time during the PAGA Period.  (¶1.4)

o   “PAGA Period” means the period from June 12, 2019 to March 23, 2023. (¶1.31) 

·         Based on a review of its records as of the date the parties executed the Settlement, Defendant estimates there are 1,389 Class Members who collectively worked a total of 45,895 Workweeks, and Aggrieved Employees who worked a total 16,160 PAGA Pay Periods. (¶4.1)

o   There are 1,155 individuals identified as Class Members. (Lee Decl., ¶3.) There are 1,154 participating class members who worked a total of 45,570 Workweeks during the Class Period. (Id. at ¶11.) There are 1,147 Aggrieved Employees who worked a total of 35,622 pay periods during the PAGA Period. (Id. at ¶14.)

·         The Gross Settlement Amount (“GSA”) is $850,000, non-reversionary. (¶3.1)

·         The Net Settlement Amount (“Net”) ($452,666.67) is the GSA minus the following:

o   Up to $283,333.33 (33%) for attorney fees (¶3.2.2);

§  Plaintiffs have given written approval of the following fee split: 1) 20% of any attorney fees awarded to Verum to Mahoney Law Group, APC; and 2) 20% of any attorney fees awarded to Verum to the Law Offices of Mario M. De La Rosa.(Declaration of Mario Castillo (“Castillo Decl.”), ¶10; Declaration of Juan Pacheco (“Pacheco Decl.”), ¶10.)

o   Up to $57,000 for litigation costs (¶3.2.2);

o   Up to $24,000 for Service Payments to the Named Plaintiffs ($12,000 each) (¶3.2.1);

o   Up to $18,000 for settlement administration costs (¶3.2.3);

o   Payment of $15,000 (75% of $20,000 PAGA penalty) to the LWDA. (¶3.2.5)

·         Defendant will also pay employer-side taxes. (¶3.1)

·         Funding of GSA: Defendant shall fully fund the Gross Settlement Amount, and also fund the amounts necessary to fully pay Defendant’s share of payroll taxes by transmitting the funds to the Administrator based on the following payment plan, which consists of four equal (4) payments of approximately $212,500.00 plus ¼ of Defendant’s share of payroll taxes.  (“Payment Plan”).  The Payment Plan requires: (1) the first payment to be deposited into the administrator's trust account within 90 days from the court's preliminary approval of the settlement; (2) the second payment to be deposited into the administrator’s trust account within 90 days of the first payment due date; (3) the third payment to be deposited into the administrator’s trust account within 90 days of the second payment due date; (4) the last and final payment to be deposited into the administrator’s trust account within 90 days of the third payment due date. (¶4.3)

o   Defendant has provided a declaration evidencing the need for payment plan. (Declaration of Kris Bowen, passim.)

·         Payments from the Gross Settlement Amount: Within 14 days after Defendant funds the Gross Settlement Amount, the Administrator will mail checks for all Individual Class Payments, all Individual PAGA Payments, the LWDA PAGA Payment, the Administration Expenses Payment, the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment, and the Class Representative Service Payment. Disbursement of the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment and the Class Representative Service Payment shall not precede disbursement of Individual Class Payments and Individual PAGA Payments. (¶4.4)

·         Uncashed Settlement Checks: The face of each check shall prominently state the date (180 days after the date of mailing) when the check will be voided. The Administrator will cancel all checks not cashed by the void date. (¶4.4.1) For any Class Member whose Individual Class Payment check or Individual PAGA Payment check is uncashed and cancelled after the void date, the Administrator shall transmit the funds represented by such checks to the California Controller's Unclaimed Property Fund in the name of the Class Member thereby leaving no "unpaid residue" subject to the requirements of California Code of Civil Procedure Section 384, subd. (b). (¶4.4.3)

·         The Settlement was submitted to the LWDA on November 21, 2023. (Kim Decl. ISO Preliminary Approval, ¶¶60-61 and Exhibits E, F thereto.)

ANALYSIS OF SETTLEMENT AGREEMENT

A.     Does a presumption of fairness exist? 

The Court preliminarily found in its Orders on June 26, 2024, that the presumption of fairness should be applied.  No facts have come to the Court’s attention that would alter that preliminary conclusion.  Accordingly, the settlement is entitled to a presumption of fairness as set forth in the preliminary approval order.

B.      Is the settlement fair, adequate, and reasonable?

The settlement was preliminarily found to be fair, adequate and reasonable.  Notice has now been given to the Class and the LWDA. 

  Reaction of the class members to the proposed settlement.

Number of class members: 1,155 (Lee Decl., ¶3.)

Number of notice packets mailed: 1,155 (Id. at ¶5.)

Number of undeliverable notices: 2 (Id. at ¶7.)

Number of opt-outs: 1 (Id. at ¶8.)                 

Number of objections: 0 (Id. at ¶9.)

Number of participating Class Members: 1,154 (Id. at ¶11.)

Average individual payment: $390.87 (Id. at ¶13.)

Highest estimated payment: $1,336.28 (Ibid.)

Lowest estimated payment: $9.90 (Ibid.)

Number of Aggrieved Employees: 1,147 (Id. at ¶14.)

Average PAGA payment: $4.36 (Ibid.)

Highest estimated PAGA payment: $13.90 (Ibid.)

The Court finds that the notice was given as directed and conforms to due process requirements.  Given the reactions of the Class Members and the LWDA to the proposed settlement and for the reasons set for in the Preliminary Approval order, the settlement is found to be fair, adequate, and reasonable.

C.      Attorney Fees and Costs

Class Counsel request $283,333.33 (33%) in fees and litigation costs and expenses in the amount of $55,099.60. (Motion ISO Fees, 14:9-11.)

The Settlement provides for attorney's fees up to $283,333.33 and costs of $57,000 (Settlement Agreement, ¶3.2.2); the class was provided notice of the requested awards, and none objected. (Lee Decl., ¶9 and Exhibit A thereto.)

Plaintiffs have given written approval of the following fee split: 1) 20% of any attorney fees awarded to Verum to Mahoney Law Group, APC; and 2) 20% of any attorney fees awarded to Verum to the Law Offices of Mario M. De La Rosa. (Declaration of Mario Castillo (“Castillo Decl.”), ¶10; Declaration of Juan Pacheco (“Pacheco Decl.”), ¶10.)

“Courts recognize two methods for calculating attorney fees in civil class actions: the lodestar/multiplier method and the percentage of recovery method.”  (Wershba at 254.)  Here, class counsel requests attorney fees using the percentage method as cross-checked by loadstar. (Motion ISO Fees, pgs. 5-13.)

 The fee request represents 33% of the gross settlement amount which is the average generally awarded in class actions.  See In re Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 558, fn. 13 (“Empirical studies show that, regardless of whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”).  

Counsel has provided the following lodestar information:

(Kim Decl. ISO Fees, ¶55 and Exhibit F thereto.)

            In sum, Counsel represent they have spent 465.3 hours in connection with this litigation, resulting in a lodestar of $395,505, which would require a negative multiplier to yield the requested fee amount.  (Ibid.)

            As for costs, Class Counsel is requesting $55,099.60 in costs which is less than settlement cap of $57,000. (Ibid.) To date, Class Counsel have incurred a total of $55,099.60 in costs in this action. (Kim Decl. ISO Fees, ¶56 and Exhibit G thereto.) The costs include, but are not limited to, filing fees ($1,556.20); mediation ($9,950); expert costs (Berger Consulting Group) ($7,550), Trustpoint ($4,781.70), and “Employment Research” ($23,375). (Ibid.)

        Based on the above, the Court will award $283,333.33 (1/3) in attorney’s fees and $55,099.60 in costs.

D.     Incentive Awards to Class Representatives

The Settlement Agreement provides for up to $24,000 for incentive awards to the class representatives ($12,000 each). (Settlement Agreement, ¶3.2.1.)

Plaintiff Castillo’s contributions to this litigation include, and are not limited to spending at least 37 hours on the following: obtaining counsel, gathering documents, reviewing documents, having numerous conversations with counsel, speaking to witnesses, preparing for and remaining available for mediation, and reviewing the settlement. (Castillo Decl., ¶7.)

Plaintiff Pacheco’s contributions to this litigation include, and are not limited to spending at least 45 hours on the following: obtaining counsel, gathering documents, reviewing documents, having numerous conversations with counsel, speaking to witnesses, preparing for and attending mediation, and reviewing the settlement. (Pacheco Decl., ¶7.)

The court notes that although these efforts are commendable, they are not exceptional. Based on the above, the Court hereby awards enhancement awards in the amounts of $7,500 per Plaintiff for a total of $15,000.

E.      Claims Administration Costs

The claims administrator requests $16,500 for the costs of administering the settlement. (Lee Decl., ¶16.) This is less than the $18,000 maximum amount estimated at preliminary approval and disclosed in the notice to class members, to which there were no objections. (Id. at ¶9 and Exhibit A thereto.) Based on all the work performed by the Claims Administrator, the Court hereby awards costs in the requested amount.

CONCLUSION

The Parties’ Motion for Final Approval of Class Action Settlement is GRANTED as the settlement is fair, adequate, and reasonable. 

The essential terms are:

4.      The Gross Settlement Amount (“GSA”) is $850,000, non-reversionary. (¶3.1)

5.      The Net Settlement Amount (“Net”) ($333,500) is the GSA minus the following:

o   $283,333.33 (33%) for attorney fees (¶3.2.2);

o   $55,099.60 for litigation costs (Ibid.);

o   $7,500 to each representative (Mario Castillo and Juan Pacheco) for a total of $15,000 for Service Payments to the Named Plaintiffs (¶3.2.1); and

o   $16,500 for settlement administration costs (¶3.2.3).

6.      Plaintiffs’ release of Defendants from claims described herein.

There is one opt out.

Within 14 days, Plaintiff’s counsel shall file a single document that constitutes both a proposed Order and Judgment, consistent with this ruling containing all requisite terms, including the class definition, release language, and a statement of the number and identity of class members who requested exclusion.

No later than January 21, 2025, Class Counsel must give notice to the class members pursuant to California Rules of Court, rule 3.771(b) and to the LWDA, if applicable, pursuant to Labor Code §2699 (1)(3).

No later than May 18, 2026, Class Counsel must file a Final Report re: Distribution of the settlement funds.

The Court hereby sets a Non-Appearance Case Review for May 26, 2026, 8:30 a.m.,  Department 9.

The Court's Judicial Assistant shall give notice of this order to Plaintiff.  Plaintiff is ordered to give formal notice to all other parties and to file proof of service of such within 5 days of receipt of this order.

IT IS SO ORDERED.

DATED: November 21, 2024                                                   ___________________________

                                                                                                Elaine Lu

                                                                                                Judge of the Superior Court