Judge: Elaine Lu, Case: 22STCV13006, Date: 2025-05-29 Tentative Ruling
Case Number: 22STCV13006 Hearing Date: May 29, 2025 Dept: 9
Preliminary Approval of Class Action
Settlement
Department SSC-9
Miranda v. CA Glatt Mart, Inc.
Case No.: 22STCV13006
Hearing: May 29, 2025
(continued from March 24, 2025)
The Parties’ Motion
for Preliminary Approval of Class Action Settlement is GRANTED as the
settlement is fair, adequate, and reasonable.
The essential terms
of the Settlement Agreement are:
·
The
Gross Settlement Amount (“GSA”) is $440,000, non-reversionary. (¶5.1)
·
The
Net Settlement Amount (“Net”) is the GSA minus the following:
o Up to $154,000 (35%) for attorney fees
(¶5.2.2);
o Up to $25,000 for litigation costs (Ibid.);
o Up to $7,500 for a Service Payment to
the Named Plaintiff (¶5.2.1);
o Up to $6,750 for settlement
administration costs (¶5.2.3); and
o Payment of $30,000 PAGA penalty (75% or
$22,500 to the LWDA; and 25% or $7,500 to the Aggrieved
Employees). (¶5.2.5)
·
Employer’s share of the payroll taxes
on the taxable portion of the settlement payments shall be paid separately from
the GSA by Defendant. (¶5.1)
· Plaintiffs
shall release Defendants from claims described herein.
The
Parties’ Motion for Final Approval of Class Action Settlement must be filed by {the Court requests that the
parties indicate -- either in submitting to this tentative ruling or at the
hearing on this motion -- the filing deadline they would like the Court to set}
and will be heard on {the Court will select a hearing date based on the filing deadline that
the parties select}.
Failure to file the Parties’ Motion for Final Approval of Class
Action Settlement by this deadline will result in a continuance of the final
approval hearing to the Court’s first available hearing date, which could be
months after the hearing date noted here.
Prior to filing the moving papers, Plaintiff must contact the court
staff for Department 9 to obtain a briefing schedule, which must be included in
the caption of the moving papers.
The
Parties’ Motion for Final Approval of Class Action Settlement must include a
concurrently lodged single document that constitutes a [Proposed] Order
and Judgment containing among other things, the class definition, full release
language, and names of the any class members who opted out.
Non-Appearance
Case Review is set for {the Court will select a non-appearance case review date based on the
filing deadline that the parties select}, 8:30 a.m.,
Department 9 re filing of Motion for Final Approval of Class Action Settlement.
BACKGROUND
This is a wage and hour class action. On
April 18, 2022, Plaintiff commenced this Action by filing a Complaint alleging
causes of actions against Defendant for: (1) failure to pay overtime wages in
violation of Labor Code sections 510 and 1194, and the Applicable Wage Order;
(2) failure to pay minimum wage for all hours worked in violation of Labor Code
sections 1197, and the Applicable Wage Order; (3) failure to provide compliant
meal periods and pay missed meal period premiums in violation of Labor Code
sections 512, 226.7, and the Applicable Wage Order; (4) failure to provide
compliant rest periods and pay missed rest period premiums in violation of
Labor Code section 226.7 and the Applicable Wage Order; (5) failure to pay all
wages due upon termination in violation of Labor Code sections 201, 202, and
203; (6) failure to provide accurate wage statements in violation of Labor Code
section 226; (7) failure to timely pay wages during employment in violation of
Labor Code sections 204 and 210; (8) failure to reimburse business expenses in
violation of Labor Code section 2802; (9) violation of California’s Unfair
Competition Law (Bus. & Prof. Code, §§ 17200 and 17203); and (10) claims
for injunctions, liquidated damages, penalties, interest, fees, expenditures,
losses, and costs based on the foregoing. (the “Class Action”).
On June 23, 2022, after sixty-five (65) days
had passed without any action by the LWDA with respect to the alleged Labor
Code violations, Plaintiff filed a separate representative action under PAGA
against Defendant in the Superior Court of California, County of Los Angeles,
Case No. 22STCV20480, for the Labor Code violations set out in the PAGA Notice
(the “PAGA Action”). In the PAGA Action,
Plaintiff alleged a cause of action for statutory penalties based on the
foregoing pursuant to PAGA (Lab. Code, §§ 2698–2699.6); and Labor Code sections
210, 226.3, 558, 1174.5, 1197.1.
On or about September 13, 2023, Plaintiff
filed the Operative Complaint in the Class Action, adding the claims alleged in
the PAGA Action, and dismissed the PAGA Action without prejudice, effectively
consolidating the PAGA Action into the Class Action.
Class Counsel represent they have conducted
informal discovery, investigation, and prosecution, which has included, among
other things, (a) over a dozen telephonic conferences with Plaintiff; (b)
inspection and analysis of time and payroll records for the estimated 155
putative Class Members; (c) analysis of putative class data points, including
the number of putative Class Members from August 10, 2018 through mediation,
the number of employees separated during the waiting time penalty period, the
average hourly rate of pay, the number of Workweeks, Pay Periods and shifts
from August 10, 2018 through mediation, and the number of Pay Periods from
April 27, 2021 through mediation; (d) analysis of other employment data from a
sample of Class Members; (e) an analysis of the legal positions taken by
Defendant; (f) investigation into the viability of class treatment of the
claims asserted in the Action; (g) analysis of potential class-wide damages,
including information sufficient to understand Defendant’s potential defenses
to Plaintiff’ claims; (h) research of the applicable law with respect to the
claims asserted in the Complaint and the potential defenses thereto; and (i)
assembling and analyzing of data for calculating damages.
On April 9, 2024, the Parties participated in
an all-day mediation presided over by Katherine J. Edwards, Esquire, an
experienced employment law mediator, which led to the Settlement Agreement, a fully
executed copy which was filed with the Court on January 15, 2025 attached to
the Declaration of Brandon M. Chang (“Chang Decl.”) as Exhibit 1.
On March 24, 2025 the Court continued
preliminary for further briefing. attached to the Declaration of Brandon M.
Chang (“Chang Decl.”). In response, on May 1, 2025, counsel filed a fully
executed Amended Settlement Agreement attached to the Supplemental Declaration
of Brandon M. Chang (“Chang Supp. Decl.”) as Exhibit 1.
Now before the Court is the Motion for
Preliminary Approval of the Settlement
Agreement attached to
the Supplemental Declaration of Brandon M. Chang as Exhibit 1.
SETTLEMENT CLASS DEFINITION
·
“Class" or "Settlement
Class" means all persons currently or formerly employed by Defendant in
California and classified as a non-exempt, hourly-paid employee who worked for
Defendant during the Class Period. (Settlement Agreement, ¶1.6.)
o "Class
Period" means the period from April 18, 2018 through April 9, 2024. (¶1.13)
·
"Aggrieved Employee" means a
person employed by Defendant in California and classified as a non-exempt,
hourly-paid employee who worked for Defendant during the PAGA Period. (¶1.4)
o "PAGA
Period" means the period from April 27, 2021 through April 9, 2024. (¶1.35)
· Based
on a review of its records to date, Defendant estimates there are approximately
155 Class Members who collectively worked a total of 22,000 Workweeks, and 117
Aggrieved Employees who worked a total of 5,779 PAGA Pay Periods. (¶6.1)
·
The
parties agree to conditional class certification for the purposes of
settlement. (¶3)
TERMS OF SETTLEMENT AGREEMENT
The essential
terms are as follows:
· The Gross Settlement Amount (“GSA”) is $440,000,
non-reversionary. (¶5.1)
o Defendant represents that there are
approximately 22,000 Workweeks worked by Class Members during the Class Period.
If the number of Workweeks worked is greater than 10% above 22,000 Workweeks
(i.e., if there are more than 24,200 total Workweeks worked by Class Members
during the Class Period) then the Gross Settlement Amount shall be increased by
the number of Workweeks in excess of 24,200 Workweeks, multiplied by the
Workweek Value. The Workweek Value shall be calculated by dividing the
originally agreed upon Gross Settlement Amount ($440,000) by 22,000, which
amounts to a Workweek Value of $20.00. Thus, for example, should there be
25,000 Workweeks worked by Class Members during the Class Period, then the
Gross Settlement Amount shall be increased by $16,000 ([25,000 Workweeks -
24,200 Workweeks] x $20.00 per Workweek). (¶10.1)
· The Net Settlement Amount (“Net”) ($224,250)
is the GSA minus the following:
o Up to $154,000
(35%) for attorney fees
(¶5.2.2);
o Up to $25,000 for litigation costs (Ibid.);
o Up to $7,500 for a Service Payment to
the Named Plaintiff (¶5.2.1);
o Up to $6,750 for settlement
administration costs (¶5.2.3); and
o Payment of $22,500 (75% of $30,000
PAGA penalty) to the LWDA. (¶5.2.5)
· Defendant will separately pay any and all
employer payroll taxes owed on the Wage Portions of the Individual Class
Payments. (¶5.1)
·
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 no later than ninety (90) calendar days after the
Effective Date. In no event shall Defendant be obligated to pay or deposit with
the Settlement Administrator more than $440,000.00 plus the Employer's Taxes,
except where the Escalator Provision in Paragraph 10.1 is triggered. (¶6.3)
·
Distribution
of GSA: Within fifteen (15) 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 the Individual PAGA Payments. (¶5.1)
·
Participating Class Member Payments: The
Individual Class Payments shall be paid from the Net Settlement Amount. An
Individual Class Payment calculated by (a) dividing the Net Settlement Amount
by the total number of Workweeks worked by all Participating Class Members
during the Class Period and (b) multiplying the result by each Participating
Class Member's Workweeks. (¶5.2.4)
Non-Participating Class Members will not receive any Individual Class Payments.
The Administrator will retain amounts equal to their Individual Class Payments
in the Net Settlement Amount for distribution to Participating Class Members on
a pro rata basis. (¶5.2.4.2)
o Tax Allocation: 20% as wages and 80% as interest and
penalties. (¶5.2.4.1)
·
PAGA
Payments: The Administrator will calculate each
Individual PAGA Payment by (a) dividing the amount of the Aggrieved Employees'
25% share of PAGA Penalties ($7,500.00) by the total number of PAGA Period Pay
Periods worked by all Aggrieved Employees during the PAGA Period and (b)
multiplying the result by each Aggrieved Employee's PAGA Period Pay Periods. (¶5.2.5.1)
o Tax Allocation: 100% penalties. (¶5.2.5.2)
· “Response
Deadline" means forty-five (45) days after the Administrator first mails
the Class Notice to Class Members and Aggrieved Employees, and shall be the
last date on which Class Members may: (a) mail Requests for Exclusion from the
Settlement, or (b) mail his or her Objection to the Settlement. Class Members
to whom Notice Packets are resent after having been returned undeliverable to
the Administrator shall have an additional 15 days beyond the Response Deadline
has expired. (¶1.48) The same deadlines apply to the submission of workweek disputes.
(¶6.5)
o If
10% or more members of the Settlement Class submit Requests for Exclusions,
Defendant shall have the right to void this Settlement Agreement. (¶12.2)
· Uncashed Settlement
Checks: The Administrator will cancel all checks not
cashed by the Void Date (180 days after the date of mailing). (¶6.4.1) 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 Office, 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. (¶6.4.3)
·
The
settlement administrator will be ILYM Group, Inc. (¶1.2)
·
The
proposed settlement was submitted to the LWDA on January 15, 2025. (Chang
Decl., Exhibit 3.)
· Participating class members and the named
Plaintiffs will release certain claims against Defendants. (See further discussion below)
ANALYSIS OF SETTLEMENT AGREEMENT
1. Does a presumption of fairness exist?
1.
Was
the settlement reached through arm’s-length bargaining? Yes. On
April 9, 2024, the Parties participated in an all-day
mediation presided over by Katherine J. Edwards, Esquire, an experienced
employment law mediator, which led to the Settlement Agreement. (Chang Decl., ¶8.)
2.
Were
investigation and discovery sufficient to allow counsel and the court to act
intelligently? Yes. Class Counsel represent they have
conducted informal discovery, investigation, and prosecution, which has
included, among other things, (a) over a dozen telephonic conferences with
Plaintiff; (b) inspection and analysis of time and payroll records for the
estimated 155 putative Class Members; (c) analysis of putative class data
points, including the number of putative Class Members from August 10, 2018
through mediation, the number of employees separated during the waiting time
penalty period, the average hourly rate of pay, the number of Workweeks, Pay
Periods and shifts from August 10, 2018 through mediation, and the number of
Pay Periods from April 27, 2021 through mediation; (d) analysis of other
employment data from a sample of Class Members; (e) an analysis of the legal
positions taken by Defendant; (f) investigation into the viability of class
treatment of the claims asserted in the Action; (g) analysis of potential
class-wide damages, including information sufficient to understand Defendant’s
potential defenses to Plaintiff’ claims; (h) research of the applicable law
with respect to the claims asserted in the Complaint and the potential defenses
thereto; and (i) assembling and analyzing of data for calculating damages. (Id.
at ¶7.)
3.
Is
counsel experienced in similar litigation? Yes. Class
Counsel is experienced in class action litigation, including
wage and hour class actions. (Id. at ¶¶43-47; Declaration of David Bibiyan, passim.)
4.
What
percentage of the class has objected? This cannot be determined until the fairness hearing. See Weil & Brown, Cal. Practice Guide:
Civil Procedure Before Trial (The Rutter Group 2014) ¶ 14:139.18, (“Should the
court receive objections to the proposed settlement, it will consider and
either sustain or overrule them at the fairness hearing.”).
CONCLUSION: The settlement is entitled to a presumption
of fairness.
2.
Is the settlement fair, adequate, and
reasonable?
1.
Strength
of Plaintiff’s case. “The most important factor is the strength of
the case for plaintiff on the merits, balanced against the
amount offered in settlement.” (Kullar v. Foot Locker Retail, Inc.
(2008) 168 Cal.App.4th 116, 130.)
Counsel has
provided the following exposure analysis:
|
Violation |
Maximum
Exposure |
|
Unpaid Wages |
$600,160 |
|
Meal Period Violations |
$1,108,467 |
|
Rest Period Violations |
$598,703 |
|
Wage Statement Penalties |
$591,000 |
|
Waiting Time Penalties |
$230,640 |
|
Expenses |
$350,147 |
|
PAGA Penalties |
$651,038 - $2,604,150 |
|
Total |
$4,130,155
- $6,083,267 |
(Chang
Decl., ¶¶18-36.)
2. Risk, expense, complexity and likely
duration of further litigation. Given
the nature of the class claims, the case is likely to be expensive and lengthy
to try. Procedural hurdles (e.g., motion
practice and appeals) are also likely to prolong the litigation as well as any
recovery by the class members.
3. Risk of
maintaining class action status through trial. Even if a class is certified, there is always
a risk of decertification. (See Weinstat v. Dentsply Intern., Inc. (2010) 180 Cal.App.4th 1213, 1226 (“Our Supreme
Court has recognized that trial courts should
retain some flexibility in conducting class actions, which means, under suitable circumstances, entertaining
successive motions on certification if the court subsequently
discovers that the propriety of a class action is not appropriate.”).)
4. Amount offered in settlement. Plaintiff’s counsel obtained a $440,000
non-reversionary settlement. This
is approximately 7%- 11% of Defendant’s exposure, which, given the uncertain
outcomes, is within the “ballpark of reasonableness.”
The $440,000 settlement amount, after reduced by
the requested deductions, leaves approximately $224,250 to be divided among
approximately 155 class members. Assuming full participation, the resulting
payments will average approximately $1,446.77 per class member. [$224,250 Net /155 = $1,446.77]
5. Extent of discovery completed and stage of
the proceedings. As indicated above,
at the time of the settlement, Class Counsel had conducted sufficient
discovery.
6. Experience and views of counsel. The settlement was negotiated and endorsed by
Class Counsel who, as indicated above, is experienced in class action
litigation, including wage and hour class actions.
7. Presence of a governmental participant. This factor is not applicable here.
8. Reaction of the class members to the
proposed settlement. The class members’ reactions will not be known until
they receive notice and are afforded an opportunity to object, opt-out and/or
submit claim forms. This factor becomes
relevant during the fairness hearing.
CONCLUSION: The settlement can be preliminarily deemed “fair,
adequate, and reasonable.”
3.
Scope of the release
It is the desire of the Parties to fully, finally, and forever
settle, compromise, and discharge the Released Claims. Effective upon entry of Judgment,
the order granting Final Approval of this Settlement, and on the date when
Defendant fully funds the entire Gross
Settlement Amount and funds all Employee's Taxes and Required
Withholding owed on the Wage Portion of the Individual Class Payments,
Plaintiff, Class Members, and Class Counsel will release claims against all
Released Parties as follows:(¶7)
For the duration of the Class Period,
all Participating Class Members, on behalf of themselves and their respective
former and present representatives, agents, attorneys, heirs, administrators,
successors, and assigns, release Released Parties from all claims that were
alleged, or reasonably could have been alleged, based on the facts stated in
the Operative Complaint including, but not limited to: (1) all claims for
failure to pay overtime wages in violation of Labor Code sections 510 and 1194,
the Applicable Wage Order, and other applicable California law not otherwise
referenced herein; (2) all claims for failure to pay minimum wages in violation
of Labor Code section 1197 and the Applicable Wage Order; (3) all claims for
failure to provide meal periods, or compensation in lieu thereof, in violation
of Labor Code sections 512 and 226.7, and the Applicable Wage Order; (4) all
claims for failure to provide rest periods, or compensation in lieu thereof, in
violation of Labor Code section 226. 7 and the Applicable Wage Order; ( 5) all
claims for the failure to pay wages due upon termination or resignation in
violation of Labor Code sections 201 and 202 and the Applicable Wage Order,;
(6) all claims for non-compliant wage statements in violation of Labor Code section
226; (7) all claims for failure to timely pay wages during employment in
violation of Labor Code sections 204 and 210, the Applicable Wage order; (8)
all claims for failure to reimburse business expenses in violation of Labor
Code section 2802; (9) all claims asserted through California Business &
Professions Code section 17200, et seq. arising out of the Labor Code
violations referenced in the Complaint; and (10) claims for injunctions,
liquidated damages, penalties, interest, fees, expenditures, losses,
restitution, and costs based on the foregoing, as well as Labor Code sections
203,210, 226, 226.7, 510, 512, 1194, 1194.2, 1197, 1199, 2802. Participating
Class Members will be deemed to have acknowledged and agreed that their claims
for wages and/or penalties in the Action are disputed, and that their
Individual Class Payment constitutes payment of all sums allegedly due to them.
(¶7.2)
Except as set forth in Section 7 .2 of
this Settlement Agreement, Participating Class Members do not release any other
claims, including claims for vested benefits, unemployment insurance,
disability, social security, workers' compensation, or claims based on facts
occurring outside the Class Period. (¶7.3)
For the duration of the PAGA Period, and to the extent permitted
by law, the LWDA and the State of California, by and through Plaintiff as an
agent and proxy of the LWDA, release the Released Parties from all claims for
PAGA penalties that were alleged, or reasonably could have been alleged, based
on the facts stated in the Operative Complaint and the PAGA Notice, including,
but not limited to, claims for PAGA penalties pursuant to Labor Code sections
210, 226.3, 558, 1174.5, 1197.1, and 2699 in connection with alleged violations
of Labor Code sections Labor Code sections 96, 98.6, 200, 201, 201.3, 202, 203,
204, 204b, 204.1, 205, 205.5, 210, 226, 226.3, 226.7, 227.3, 232, 232.5, 246 et
seq., 432, 510, 512, 558, 1102.5, 1174, 1174.5, 1194, 1197, 1197.1, 1197.5,
1198.5, 2699, 2802, and 2810.5, among others. (¶7.4)
·
Named
Plaintiff will also provide a general release and CC § 1542 waiver. (¶7.1)
4.
May conditional class certification be
granted?
1.
Standards
A detailed analysis of the elements required
for class certification is not required, but it is advisable to review each
element when a class is being conditionally certified (Amchem Products, Inc. v. Winsor (1997) 521 U.S. 620, 622-627.) The trial court can appropriately utilize a
different standard to determine the propriety of a settlement class as opposed
to a litigation class certification.
Specifically, a lesser standard of scrutiny is used for settlement
cases. (Dunk at 1807, fn 19.)
Finally, the Court is under no “ironclad requirement” to conduct an
evidentiary hearing to consider whether the prerequisites for class
certification have been satisfied. (Wershba
at 240.)
2.
Analysis
a.
Numerosity. There
are at least 155 class members. (Chang Decl., ¶40.) This element is met.
b.
Ascertainability. The
proposed class is defined above. The
class definition is “precise, objective and presently ascertainable.” (Sevidal
v. Target Corp. (2010) 189 Cal.App.4th 905, 919.) The class members are
identifiable from Defendant’s records. (Chang Decl., ¶39.)
c.
Community
of interest. “The community of interest requirement
involves three factors: ‘(1) predominant common questions of law or fact; (2)
class representatives with claims or defenses typical of the class; and (3)
class representatives who can adequately represent the class.’” (Linder
v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)
As to commonality, counsel contends that this
litigation was brought to resolve common issues that include whether Defendant
failed to pay all hours worked at a proper This Litigation is brought to
resolve common issues that include whether Class Members were paid all due
wages, Defendant provided full, timely and un-interrupted meal and rest
periods, whether Class Members are entitled to premium pay for incomplete,
untimely or interrupted meal or rest periods. (Chang Decl., ¶41.)
Further Counsel contends that Plaintiff’s
claims are typical of those of other Class Members as Plaintiff: (1) is a
non-exempt employee like other Class Members; (2) complains of not being paid
for all time under Defendant’s control or suffered and/or permitted to work for
Defendant; (3) did not receive full premium pay for meal periods that were not
compliant with the Labor Code; (4) did not receive premium pay for rest periods
that were not provided. (Id. at ¶42.)
As to adequacy, Class Counsel contends
Plaintiff has no conflicts with the class and is represented by adequate
counsel. (Id. at ¶¶43-47; Declaration of Plaintiff Miranda, passim.)
d.
Adequacy
of class counsel. As indicated above, Class Counsel has shown
experience in class action litigation, including wage and hour class actions.
e.
Superiority. Given
the relatively small size of the individual claims, a class action appears to
be superior to separate actions by the class members.
CONCLUSION: The class may be conditionally certified
since the prerequisites of class certification have been satisfied.
5.
Is the notice proper?
1.
Content of class notice.
The proposed notice is attached to the Settlement Agreement as Exhibit A. Its
content appears to be acceptable. It includes information such as: a summary of
the litigation; the nature of the settlement; the terms of the settlement
agreement; the proposed deductions from the gross settlement amount (attorney
fees and costs, enhancement awards, and administration costs); the procedures
and deadlines for participating in, opting out of, or objecting to, the
settlement; the consequences of participating in, opting out of, or objecting
to, the settlement; and the date, time, and place of the final approval
hearing.
2.
Method of class notice.
Notice will be via direct mail. Not later than 21 days after the Court grants
Preliminary Approval of the Settlement, Defendant will deliver the Class Data
to the Administrator, in the form of a Microsoft Excel spreadsheet. (¶4.2) Using best efforts to
perform as soon as possible, and in no event later than fourteen (14) days
after receiving the Class Data, the Administrator will send to all Class
Members identified in the Class Data, via first-class USPS mail, the Class
Notice with Spanish translation. Before mailing Class Notices, the
Administrator shall update Class Member addresses using the National Change of
Address database. (¶9.4.2) Not later than 3 business days after the
Administrator's receipt of any Class Notice returned by the USPS as
undelivered, the Administrator shall re-mail the Class Notice using any
forwarding address provided by the USPS. If the USPS does not provide a
forwarding address, the Administrator shall conduct a Class Member Address
Search, and re-mail the Class Notice to the most current address obtained. The
Administrator has no obligation to make further attempts to locate or send
Class Notice to Class Members whose Class Notice is returned by the USPS a
second time. (¶9.4.3) If the Administrator, Defendant or Class Counsel is
contacted by or otherwise discovers any persons who believe they should have
been included in the Class Data and should have received Class Notice, the
Parties will expeditiously meet and confer, and in good faith. in an effort to
agree on whether to include them as Class Members. If the Parties agree, such
persons will be Class Members entitled to the same rights as other Class
Members, and the Administrator will send, via email or overnight delivery, a
Class Notice requiring them to exercise options under this Settlement Agreement
not later than 15 days after receipt of Class Notice, or the deadline dates in
the Class Notice, whichever is later. (¶9.4.5) Notice of Final Judgment will be posted on the Settlement
Administrator’s website. (¶9.8.2)
3.
Cost of class notice.
As indicated above, settlement administration costs are estimated not to exceed
$6,750. Prior to the time of the final fairness hearing, the claims
administrator must submit a declaration attesting to the total costs incurred
and anticipated to be incurred to finalize the settlement for approval by the
Court.
6.
Attorney
fees and costs
CRC
rule 3.769(b) states: “Any agreement, express or implied, that has been entered
into with respect to the payment of attorney fees or the submission of an
application for the approval of attorney fees must be set forth in full in any
application for approval of the dismissal or settlement of an action that has
been certified as a class action.”
Ultimately, the award of attorney fees
is made by the court at the fairness hearing, using the lodestar method with a
multiplier, if appropriate. (PLCM Group, Inc. v. Drexler (2000) 22
Cal.4th 1084, 1095-1096; Ramos v.
Countrywide Home Loans, Inc. (2000) 82 Cal.App.4th 615, 625-626; Ketchum III v. Moses (2000) 24 Cal.4th
1122, 1132-1136.) Despite any agreement
by the parties to the contrary, “the court ha[s] an independent right and
responsibility to review the attorney fee provision of the settlement agreement
and award only so much as it determined reasonable.” (Garabedian v. Los Angeles Cellular Telephone Company (2004) 118
Cal.App.4th 123, 128.)
The question of whether Class Counsel
is entitled to $154,000 (35%)
in attorney fees will be addressed at the fairness hearing when class
counsel brings a noticed motion for attorney fees. Class counsel must provide the court with
billing information so that it can properly apply the lodestar method and must
indicate what multiplier (if applicable) is being sought as to each counsel.
Class Counsel should also be prepared
to justify the costs sought (capped at $25,000)
by detailing how they were incurred.
7. Incentive Award
to Class Representative
The
Settlement Agreement provides for an enhancement award of up $7,500 for
the named Plaintiff. In connection with the final fairness hearing, the named
Plaintiff must submit a declaration attesting to why he should be entitled to
an enhancement award in the proposed amount.
The named Plaintiff must explain why he “should be compensated for the
expense or risk she has incurred in conferring a benefit on other members of
the class.” (Clark v. American Residential
Services LLC (2009) 175 Cal.App.4th 785, 806.) Trial courts should not sanction enhancement
awards of thousands of dollars with “nothing more than pro forma claims
as to ‘countless’ hours expended, ‘potential stigma’ and
‘potential risk.’ Significantly more specificity, in the form of quantification
of time and effort expended on the litigation, and in the form of reasoned
explanation of financial or other risks incurred by the named plaintiff, is
required in order for the trial court to conclude that an enhancement was
‘necessary to induce [the named plaintiff] to participate in the suit . . .
.’” (Id.
at 806-807, italics and ellipsis in original.)
The Court will decide the issue of the
enhancement awards at the time of final approval.
CONCLUSION AND ORDER
The Parties’ Motion
for Preliminary Approval of Class Action Settlement is GRANTED as the
settlement is fair, adequate, and reasonable.
The essential terms
of the Settlement Agreement are:
·
The
Gross Settlement Amount (“GSA”) is $440,000, non-reversionary. (¶5.1)
·
The
Net Settlement Amount (“Net”) is the GSA minus the following:
o Up to $154,000 (35%) for attorney fees
(¶5.2.2);
o Up to $25,000 for litigation costs (Ibid.);
o Up to $7,500 for a Service Payment to
the Named Plaintiff (¶5.2.1);
o Up to $6,750 for settlement
administration costs (¶5.2.3); and
o Payment of $30,000 PAGA penalty (75% or
$22,500 to the LWDA; and 25% or $7,500 to the Aggrieved
Employees). (¶5.2.5)
·
Employer’s share of the payroll taxes
on the taxable portion of the settlement payments shall be paid separately from
the GSA by Defendant. (¶5.1)
· Plaintiffs
shall release Defendants from claims described herein.
The
Parties’ Motion for Final Approval of Class Action Settlement must be filed by {the Court requests that the
parties indicate -- either in submitting to this tentative ruling or at the
hearing on this motion -- the filing deadline they would like the Court to set}
and will be heard on {the Court will select a hearing date based on the filing deadline that
the parties select}.
Failure to file the Parties’ Motion for Final Approval of Class
Action Settlement by this deadline will result in a continuance of the final
approval hearing to the Court’s first available hearing date, which could be
months after the hearing date noted here.
Prior to filing the moving papers, Plaintiff must contact the court
staff for Department 9 to obtain a briefing schedule, which must be included in
the caption of the moving papers.
The
Parties’ Motion for Final Approval of Class Action Settlement must include a
concurrently lodged single document that constitutes a [Proposed] Order
and Judgment containing among other things, the class definition, full release
language, and names of the any class members who opted out.
Non-Appearance
Case Review is set for {the Court will select a non-appearance case review date based on the
filing deadline that the parties select}, 8:30 a.m.,
Department 9 re filing of Motion for Final Approval of Class Action Settlement.
The
Judicial Assistant is to give notice to Counsel for Plaintiff who is ordered to
give further and formal notice to all parties and file proof of service of such
within 10 days.
IT
IS SO ORDERED.
DATED:
May 29, 2025 ___________________________
ELAINE
LU
Judge
of the Superior Court