Judge: Elaine Lu, Case: 23STCV28505, Date: 2025-04-17 Tentative Ruling

Case Number: 23STCV28505    Hearing Date: April 17, 2025    Dept: 9

Final Approval of Class Action Settlement

Department SSC-9

Hon. Elaine Lu

Marina Durham v. Steak 48 Beverly Hills, LLC

Case No.: 23STCV28505

Hearing: April 17, 2025

TENTATIVE 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:

·       The Gross Settlement Amount (“GSA”) is $252,000, non-reversionary. (¶3.1)

·       The Net Settlement Amount (“Net”) is the GSA minus the following:

o   $84,000 (33 1/3%) for attorney fees to Class Counsel, Employment Rights Lawyers, the Law Office of Tatiana Hernandez, APC, the Ozzello Practice, PC, and the Law Offices of David R. Greifinger (Settlement, ¶3.2.2);

o   $11,433.12 for attorney costs to Class Counsel (Settlement, ¶3.2.2);

o   $15,000 ($7,500 each x 2)  enhancement payments to Plaintiffs Marina Durham and Cassandra Hall-LePrevost (¶3.2.1);

o   $9,000 for settlement administration costs to ILYM Group, Inc. (¶3.2.3); and

o   $18,750 (75% of $25,000 PAGA penalty) to the LWDA and $6,250 (25% of $25,000 PAGA penalty) to Aggrieved Employees. (¶3.2.5)

·       Defendants will pay their share of employer payroll taxes separate from the GSA. (¶3.1)

·       Plaintiffs’ release of Defendants from claims described herein.

No later than April 28, 2025, 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.  Counsel should also amend ¶18 of the Proposed Order to state “without prejudice”.  The Court hereby sets a Non-Appearance Case Review re submission of proposed Order and Judgment for May 5, 2025, 8:30 a.m.,  Department 9.

By June 17, 2025, Class Counsel must give notice to the class members pursuant to California Rules of Court, Rule 3.771(b) (which may be effected by posting on the Administrator’s website if consistent with the parties’ Class Action Settlement) and to the LWDA, if applicable, pursuant to Labor Code §2699 (1)(3).

By July 17, 2026, Class Counsel must file a Final Report re: Distribution of the settlement funds.  The Court hereby sets a Non-Appearance Case Review re final report for July 24, 2026, 8:30 a.m.,  Department 9.

BACKGROUND

This is a wage and hour class action. On August 14 2023, Plaintiff Hall-LePrevost filed a Complaint (Case No. 23STCV19341) alleging causes of action against Defendants Steak 48, LLC and Team 44 Restaurants, LLC for the violation of Labor Code 2699 for (1) failure to pay overtime compensation and liquidated damages (Labor Code §§ 510, 1194, 1194.2, and 1198); (2) failure to pay minimum wages (Labor Code §§ 1182.12, 1194, 1194.2, 1197, 1197.1, 1198, and Cal. Code Regs., tit 8 §11050); (3) failure to provide meal periods (Labor Code §§ 226.7 & 512, and Cal. Code Regs., tit 8 §11050); (4) failure to provide rest periods (Labor Code §§ 226.7 and 512); (5) failure to provide accurate wage statements and maintain accurate payroll records (Labor Code §§ 226(a), 1174(d), and 1198); (6) failure to reimburse business expenses (Labor Code §§ 2800 and 2802); (7) conversion—improper receipt and distribution of gratuities (Labor Code § 351); (8) failure to provide adequate seating (Labor Code § 1198 and Cal. Code Regs., tit 8 §11050(14)); (9) failure to pay wages upon termination (Labor Code § 203); (10) violation of Labor Code § 558; (11) unfair competition (Bus. & Prof. Code §§ 17200 et seq.); and (12) PAGA Penalties (Labor Code §§ 2698 et seq.).

On November 20, 2023, Plaintiff Marina Durham filed her class action complaint (Case No. 23STCV28505), alleging causes of action against Steak 48 for: (1) Failure to Provide Rest Breaks and Pay for Missed Rest Breaks (Labor Code § 226.7(A) and IWC Wage Order No. 5-2001, Sec. 12); (2) Failure To Provide Meal Periods and Pay For Missed Meal Periods (Labor Code § 226.7, 512 And IWC Wage Order No. 5-2001, Sec. 11); (3) Failure to Pay Minimum and Overtime Wages, And Pay for All Wages Earned (Labor Code Sec. 204, 1194 And 1197);  (4) Failure to Maintain Accurate Payroll Records (Labor Code §§ 226, 1174, 1174.5, 1198 and IWC Wage Order No. 5-2001, Sec. 7); (5) Failure to Issue Accurate Wage Statement (Labor code § §226); (6) Failure to Pay Wages on A Timely Basis (Cal. Labor Code §§204, 210); (7) Failure to Reimburse Required Business Expenses (Labor Code Sec. 2802); (8) Unfair Competition Law Violation (Bus. & Prof. Code §17200, et seq.).

After settling the case, the Parties consolidated both Plaintiff Durham’s and Plaintiff Hall’s causes of action into one consolidated complaint, alleging thirteen (13) causes of actions for: (1) Failure to Provide Rest Breaks and Pay for Missed Rest Breaks (Labor Code § 226.7(A) and IWC Wage Order No. 5-2001, Section 12); (2) Failure To Provide Meal Periods and Pay for Missed Meal Periods (Labor Code § 226.7, 512) And IWC Wage Order No. 5-2001, Section 1; (3) Failure to Pay Minimum and Overtime Wages, And Pay for All Wages Earned (Labor Code §§ 204, 1194, and 1997); (4) Failure to Maintain Accurate Payroll Records (Labor Code §§ 226, 1174, 1174.5, 1198 and IWC Wage Order No. 5-2001, § 7); (5) Failure to Issue Accurate Wage Statements (Labor Code §§ 226); (6) Failure to Timely Pay All Wages Due and Owing at Termination (Labor Code §§ 201, 202, & 203); (7) Failure to Pay Wages on A Timely Basis (Cal. Labor Code §§ 204, 210); (8) Failure to Reimburse Required Business Expenses (Labor Code § 2802); (9) Conversion, Improper Receipt and Distribution of Gratuities (Labor Code § 351); (10) Failure to Provide Adequate Seating (Labor Code § 1198; Cal. Code Regs., Tit 8,  §11050(14)); (11) Violation of Labor Code §558 (12) UCL Violation (Bus. and Prof. Code §17200, et seq.; and (13) Civil Penalties for Violations of the California Labor Code Pursuant to the Private Attorneys General Act (Lab. Code §§ 2698, et seq.)

On April 17, 2024, the Parties participated in a mediation with Scott Radovich, Esq., which led to an agreement. A fully-executed copy of the Settlement Agreement was filed with the Court on July 16, 2024 attached to the Declaration of Amir Seyedfarshi (“Seyedfarshi Decl.”) ISO Prelim, as Exhibit A.

The Court continued preliminary approval on November 13, 2024 for Counsel to revise the settlement agreement’s escalator clause. On December 16, 2024, Counsel filed a fully-executed revised settlement agreement attached as Exhibit 1 to the Supplemental Declaration Supplemental Declaration of Amir H. Seyedfarshi (“Seyedfarshi Supp. Decl.”) ISO Prelim.

            The Court granted Preliminary Approval on December 23, 2024. Notice was given to the Class Members as ordered (see Declaration of Nicole Bench (“Bench Decl.”) and Supplemental Declaration of Nicole Bench (“Bench Supp. Decl.”) Now before the Court is the Motion for Final Approval of the proposed class action settlement.

SETTLEMENT CLASS DEFINITION

·       "Class" means all non-exempt hourly-paid individuals who are or were California residents and are or were employed by Defendants in the State of California, and who worked one or more shifts during the Class Period (as defined below). (¶1.5)

o   "Class Period" means the period from November 20, 2019 to June 27, 2024. (¶1.12)

·       "Aggrieved Employee" means all non-exempt hourly-paid individuals who are or were California residents and are or were employed by Defendants in the State of California, and who worked one or more shifts during the PAGA Period (as defined below). (¶1.4)

o   "PAGA Period" means the period from June 6, 2022 to June 27, 2024. (¶1.31)

·       The parties stipulate to class certification for settlement purposes only. (¶12.1)

TERMS OF SETTLEMENT AGREEMENT

The essential terms are as follows:

·       The Gross Settlement Amount (“GSA”) is $252,000, non-reversionary. (¶3.1)

o   Escalator: Based on its records, Defendants estimates that, as of the date of this Settlement Agreement, (1) there are 415 Class Members and 13,125 Total Workweeks during the Class period and (2) there were 396 Aggrieved Employees who worked 6,280 Pay Periods during the PAGA Period. (¶8.)

o   ILYM Group reports a total of 478 Participating Class Members. The total number of Workweeks worked by the Participating Class Members during the Class Period is 14,135.  Thus the Escalator Clause has not been triggered. (Bench Supp. Decl., ¶7)

·       The Net Settlement Amount (“Net”) ($113,250) is the GSA minus the following:

o   Up to $84,000 (33 1/3%) for attorney fees (¶3.2.2);

§  Fee split: 28.75% to Employment Rights Lawyers, 28.75% to The Law Office of Tatiana Hernandez, APC, and 42.5% to The Ozzello Practice, PC and The Law Offices of David R. Greifinger. (Seyedfarshi Decl. ISO Prelim, ¶75)

o   Up to $12,000 for litigation costs (Settlement, ¶3.2.2);

o   Up to $15,000 ($7,500 x 2) for Service Payments to the Named Plaintiffs (¶3.2.1);

o   Up to $9,000 for settlement administration costs (¶3.2.3); and

o   Payment of $18,750 (75% of $25,000 PAGA penalty) to the LWDA. (¶3.2.5)

·       Defendants will pay their share of taxes separate from the GSA. (¶3.1)

·       Funding of Settlement: Defendants shall fully fund the Gross Settlement Amount, and also fund the amounts necessary to fully pay Defendants' share of payroll taxes by transmitting the funds to the Administrator no later than 14 days after the Effective Date.  (¶4.3)

·       No claim form is required. (¶3.1)

·       Individual Settlement Payment Calculation:  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. (¶3.2.4)

o   Tax Allocation: 20% as wages and 80% as interest and penalties. (¶3.2.4.1)

·       PAGA Payments: The Administrator will calculate each Individual PAGA Payment by (a) dividing the amount of the Aggrieved Employees' 25% share of PAGA Penalties $6,250.00 by the total number of PAGA Period Pay Periods worked by all Aggrieved Employees during the P AGA Period and (b) multiplying the result by each Aggrieved Employee's PAGA Period Pay Periods. Aggrieved Employees assume full responsibility and liability for any taxes owed on their Individual PAGA Payment. (¶3.2.5.1)

o   Tax Allocation: 100% IRSO 1099. (¶3.2.5.2)

·       "Response Deadline" means [e.g., 60] days after the Administrator mails Notice to Class Members and Aggrieved Employees, and shall be the last date on which Class Members may: (a) fax, email, or mail Requests for Exclusion from the Settlement, or (b) fax, email, or 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 14 calendar days beyond the Response Deadline has expired. (¶1.43) The same deadline applies to challenges to workweek calculations. (¶7.6)

o   If the number of valid Requests for Exclusion identified in the Exclusion List exceeds 10% of the total of all Class Members, Defendants may, but are not obligated to, elect to withdraw from the Settlement. (¶9)

·       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 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(b). (¶4.4.3)

·       The settlement administrator will be ILYM Group. (¶7.1.)

• Notice of Final Judgment will be posted on the Settlement Administrator’s website. (¶7.8.1)
• The proposed settlement was submitted to the LWDA on July 15, 2024. (Seyedfarshi Decl., Exhibit 3.) The proposed amended settlement was submitted to the LWDA on December 19, 2024. (Seyedfarshi 2^nd Supp. Decl., Exhibit 4.)

• Scope of the release: Effective on the date when Defendants fully funds the entire Gross Settlement Amount and fund all employer payroll taxes owed on the Wage Portion of the Individual Class Payments, Plaintiffs, Class Members, and Class Counsel will release claims against all Released Parties as follows: (¶5)

o   Release by Participating Class Members Who Are Not Aggrieved Employees: 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 (i) all claims that were alleged, or reasonably could have been alleged, based on the Class Period facts stated in the Operative Complaint and ascertained in the course of the Action including, failure to pay overtime wages, minimum wages, timely wages, wages due upon termination, and reimbursable expenses; and by failing to provide adequate meal periods, rest breaks and accurate itemized wage statements. Except as set forth in Section 5.3 of this Agreement, Participating Class Members do not release any other claims, including claims for vested benefits, wrongful termination, violation of the Fair Employment and Housing Act, unemployment insurance, disability, social security, workers' compensation, or claims based on facts occurring outside the Class Period. (¶5.2)

o   Release by Non-Participating Class Members Who Are Aggrieved Employees: All Non-Participating Class Members who are Aggrieved Employees are deemed to release, on behalf of themselves and their respective former and present representatives, agents, attorneys, heirs, administrators, successors, and assigns, the Released Parties from all claims for PAGA penalties that were alleged, or reasonably could have been alleged, based on the PAGA Period facts stated in the Operative Complaint and the PAGA Notice and ascertained in the course of the Action including, failure to pay overtime wages, minimum wages, timely wages, wages due upon termination, and reimbursable expenses; and by failing to provide adequate meal periods, rest breaks and accurate itemized wage statements.  (¶5.3)

o   "Released Parties" means: Defendants and each of its former and present directors, officers, shareholders, owners, members, attorneys, insurers, predecessors, successors, assigns, subsidiaries and affiliates. (¶1.41)

o   Named Plaintiff will also provide a general release and CC § 1542 waiver. (¶5.1)

ANALYSIS OF SETTLEMENT AGREEMENT

A.    Does a presumption of fairness exist? 

The Court preliminarily found in its Order of December 23, 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: 479 (Bench Decl. ¶6.)

Number of notice packets mailed: 479 (Id. at ¶8.)

Number of undeliverable notices: 54 (Id. at ¶11.)

Number of opt-outs: 1 (Bench Supp. Decl., at ¶6 [Tajia Starr].)

Number of objections: 0 (Id. at ¶7.)

Number of participating class members: 478 (Id. at ¶9.)

Average individual payment: $225.04 (Id. at ¶11.)

Highest individual payment: $662.07 (Ibid.)

Lowest individual payment: $7.61 (Ibid.)

Average PAGA payment: $13.05 (Id. at ¶12.)

Highest PAGA payment: $37.90 (Ibid.)

Lowest PAGA payment: $0.86 (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 forth in the Preliminary Approval order, the settlement is found to be fair, adequate, and reasonable.

C.    Attorney Fees and Costs

            Class Counsel requests an award of $84,000 (33.33%) in fees and $11,433.12 in costs. (MFA at 18:1-5.) The Settlement Agreement provides for up to $84,000 (33 1/3%) of the settlement amount in fees and $12,000 in costs (¶3.2.2).

“Courts recognize two methods for calculating attorney fees in civil class actions: the lodestar/multiplier method and the percentage of recovery method.”  (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 254.)  Here, class counsel request attorney fees using the percentage method, as crosschecked by lodestar. (MFA at pp. 16-21.)

In common fund cases, the Court may employ a percentage of the benefit method, as cross-checked against the lodestar. (Laffitte v. Robert Half Int’l, Inc. (2016) 1 Cal.5th 480, 503.) The fee request represents approximately one-third 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 whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of the recovery.”].)

Class Counsel has provided information, summarized below, from which the lodestar may be calculated:

(Decl. of Amir Seyedfarshi ISO Final ¶16 and Exhibit A; Decl. of Calvin A. Marshall ISO Final ¶12; Decl. of Tatiana Hernández ISO Final ¶18 and Exhibit A.)

Counsel’s percentage-based fee request is lower than the unadjusted lodestar, and would represent application of a negative multiplier of approximately 0.35x.

Fee Split: 28.75% to Employment Rights Lawyers, 28.75% to The Law Office of Tatiana Hernandez, APC, and 42.5% to The Ozzello Practice, PC and The Law Offices of David R. Greifinger. (Seyedfarshi Decl. ISO Prelim, ¶75)

Here, the $84,000 (33.33%) fee request represents a reasonable percentage of the total funds paid by Defendant. Notice of the fee request was provided to class members in the Notice, and no one objected. (Bench Supp. Decl. ¶7, Exhibit A thereto.)

            As for costs, Class Counsel is requesting a cost amount of $11,433.12. This is less than the $12,000 cap estimated at preliminary approval, which was disclosed to Class Members and not objected to. (Bench Supp. Decl. ¶7, Exhibit A thereto.) Costs include, but are not limited to: Mediation ($3,650.00), Filing Fees ($3,397), Case Anywhere ($1,227.90), and Expert Witness Fees [Teleswitch Consulting] ($2,669.40). (Seyedfarshi Decl. ISO Final ¶17 and Exhibit B; Marshall Decl. ISO Final ¶13; Hernández Decl. ISO Final ¶19 and Exhibit B.) The costs appear to be reasonable in amount and reasonably necessary to this litigation.

Based on the above, the Court hereby awards $84,000 (33.33%) in fees and $11,433.12 in costs.

D.    Incentive Award

The class representatives, Marina Durham and Cassandra Hall-LePrevost, seek an enhancement payment of $15,000 ($7,500 x 2) for their contributions to the action. (MFA at 16:5-15.) 

In connection with the final fairness hearing, named Plaintiffs must submit declarations attesting to why they should be entitled to an enhancement award in the proposed amount.  The named Plaintiffs must explain why they “should be compensated for the expense or risk he 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 plaintiffs, 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.)

Plaintiff Durham represents that her contributions to this litigation include: engaging in phone calls, texts and emails with her attorneys, gathering and reviewing documents, helping prepare her attorneys for the mediation, and reviewing the settlement. She estimates spending 50 hours on the case. (Declaration of Marina Durham  ¶¶4-9.)

Plaintiff Cassandra Hall-LePrevost represents that her contributions to this litigation include: engaging in phone calls, texts and emails with her attorneys, gathering and reviewing documents, helping prepare her attorneys for the mediation, and reviewing the settlement. She estimates spending 50 hours on the case. (Declaration of Cassandra Hall-LePrevost, ¶¶4-8.)

Based on the above, as well as the benefits obtained on behalf of the class, the Court hereby grants the enhancement payment in the requested amount of $7,500 to each of the two named Plaintiffs ($15,000 total).

E.    Settlement Administration Costs

            The settlement administrator, ILYM Group, Inc., is requesting $9,000 for the costs of settlement administration. (Bench Supp. Decl. ¶13.) This equals the cost of $9,000 provided for in the Settlement Agreement (¶3.2.3) and disclosed to class members in the Notice, to which there were no objections. (Bench Supp. Decl. ¶7, Exhibit A thereto.) Based on the above, the Court hereby awards costs in the requested amount of $9,000.

CONCLUSION AND ORDER

The Parties’ Motion for Final Approval of class action settlement is GRANTED as the settlement is fair, adequate, and reasonable.

The essential terms are:

·       The Gross Settlement Amount (“GSA”) is $252,000, non-reversionary. (¶3.1)

·       The Net Settlement Amount (“Net”) is the GSA minus the following:

o   $84,000 (33 1/3%) for attorney fees to Class Counsel, Employment Rights Lawyers, the Law Office of Tatiana Hernandez, APC, the Ozzello Practice, PC, and the Law Offices of David R. Greifinger (Settlement, ¶3.2.2);

o   $11,433.12 for attorney costs to Class Counsel (Settlement, ¶3.2.2);

o   $15,000 ($7,500 each x 2)  enhancement payments to Plaintiffs Marina Durham and Cassandra Hall-LePrevost (¶3.2.1);

o   $9,000 for settlement administration costs to ILYM Group, Inc. (¶3.2.3); and

o   $18,750 (75% of $25,000 PAGA penalty) to the LWDA and $6,250 (25% of $25,000 PAGA penalty) to Aggrieved Employees. (¶3.2.5)

·       Defendants will pay their share of employer payroll taxes separate from the GSA. (¶3.1)

·       Plaintiffs’ release of Defendants from claims described herein.

No later than April 28, 2025, 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.  Counsel should also amend ¶18 of the Proposed Order to state “without prejudice”.  The Court hereby sets a Non-Appearance Case Review re submission of proposed Order and Judgment for May 5, 2025, 8:30 a.m.,  Department 9.

By June 17, 2025, Class Counsel must give notice to the class members pursuant to California Rules of Court, Rule 3.771(b) (which may be effected by posting on the Administrator’s website if consistent with the parties’ Class Action Settlement) and to the LWDA, if applicable, pursuant to Labor Code §2699 (1)(3).

By July 17, 2026, Class Counsel must file a Final Report re: Distribution of the settlement funds.  The Court hereby sets a Non-Appearance Case Review re final report for July 24, 2026, 8:30 a.m.,  Department 9.

COURT CLERK TO GIVE NOTICE TO MOVING PARTY (PLAINTIFF). THE MOVING PARTY IS TO GIVE NOTICE TO ALL OTHER PARTIES.

IT IS SO ORDERED.

DATED: April 17, 2025                                                         ___________________________

                                                                                                 Elaine Lu

                                                                                                 Judge of the Superior Court