Judge: Jon R. Takasugi, Case: 19STCV31170, Date: 2023-04-27 Tentative Ruling

Case Number: 19STCV31170    Hearing Date: April 27, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff’s motion for preliminary approval of the Class Action and PAGA settlement is GRANTED.

            On 9/3/2019, Plaintiff Ramon Martinez (Plaintiff) on behalf of himself and all other aggrieved employees filed suit against J&J Snack Foods Corp. of California (Defendant), seeking civil penalties pursuant to the Private Attorney General Act (PAGA), and Labor Code section 2698, et seq.

Now, Plaintiff moves for preliminary approval of the Class Action and PAGA settlement. 

            The motion is unopposed.

Discussion

The Class Action and PAGA Settlement Agreement and Class Action Notice (Settlement Agreement) provides for:

…a Gross Settlement Amount (“GSA”) of $150,000 based on an estimated 10,000 workweeks worked during the Class Period from March 7, 20214 through the date of preliminary approval. SA ¶¶8, 12, 53. The Settlement further provides that if actual workweeks exceed 11,000, Defendant will pay an additional $15.00 per workweek above 11,000 workweeks. SA ¶53.

With an estimated 30,119 Class workweeks, Defendant will pay a GSA of approximately $436,785. 5 The GSA includes:

(a)   attorneys’ fees of up to one-third of the GSA, or $145,595 (SA ¶5);

(b)  Class Counsel costs up to $30,000 (SA ¶5);

(c) Service Award to Plaintiff of $5,000 (SA ¶9);

(d) PAGA Settlement Amount of $10,000 ($7,500 to LWDA; $2,500 to PAGA; and

(e) Administration expenses to CPT Group, Inc. in an amount estimated not to exceed $11,000 (SA ¶3)

Based on anticipated Court-approved deductions for attorneys’ fees, litigation costs, service payment, PAGA payment, and settlement administration, the estimated Net Settlement Amount (“NSA”) of $235,1907 will be paid to Participating Class Members based on the number of workweeks worked during the Class Period. SA ¶37. No claim form is required. SA ¶32. Khoury Decl. ¶19.

With an estimated 30,119 weeks worked during the Class Period by 675 Class Members, a Participating Class Member can expect to receive an average $348.42 per employee or an estimated $7.80 for each week worked during the Class Period. Khoury Decl. ¶20. No part of the GSA may revert to Defendant. Khoury Decl. ¶21; SA, ¶ 5.

                        (Motion, 3:14-4:12.)

I.                   Standards for Preliminary Approval

Preliminary approval is warranted if the settlement falls within a “reasonable range.” (See North County Contractor’s Ass’n., Inc. v. Touchstone Ins. Servs. (1994) 27 Cal. App. 4th 1085, 1089-90.)

Reasonableness and fairness are presumed where (1) the settlement is reached through “arms-length bargaining”; (2) investigation and discovery are “sufficient to allow counsel and the court to act intelligently”; (3) counsel is “experienced in similar litigation”; and (4) the percentage of objectors “is small.” (Dunk v. Ford Motor Co. (1996). 48 Cal. App. 4th 1794, 1802.)

To show that the Settlement Agreement satisfies these factors, Plaintiff submitted evidence that:

-         The Parties attended two full-day mediations with two experienced mediators. All Counsel aggressively pursued their respective positions at all times. The Parties settled only after the second mediation. (Khoury Decl. ¶26.)

-         Plaintiff investigated the merits of his claims and Defendant’s defenses before filing PAGA charges. After filing the complaint, Plaintiff’s counsel received relevant data and documents through both formal and informal discovery from Defendant in preparation for two mediations. Proof of the claims asserted by Plaintiff on behalf of the Class would be based largely on an analysis of time and pay records, but Plaintiff’s Counsel also attempted to contact nearly all Class members about their experiences and was able to speak with a dozen of them. (Khoury Decl. ¶¶13-15, 27.)

-         Plaintiff’s Counsel have significant experience litigating wage and hour employment class actions. (Khoury Decl. ¶¶2-8, 28; Mesriani Decl. ¶¶ 2-8.) This allowed Counsel to evaluate settlement of the Class claims compared to the risks of further litigation, including trial, appeals and collection. Defense counsel with Nixon Peabody are also highly skilled and sophisticated lawyers, with extensive class action experience. They defended their clients vigorously through all phases of the case, including mediation and subsequent negotiations. (Ibid.)

Plaintiff also set forth extensive analysis as to how the Settlement Amounts were calculated. (See Motion, 10:17-12:26.) 

Based on the foregoing, the Court agrees that the Settlement is entitled to a presumption of fairness, and meets the standards for preliminary approval.

II.                Provisional Certification of the Class

Class certification is appropriate when there exists (1) an ascertainable and sufficiently numerous class, (2) a well-defined community of interest among class members, and (3) when certification would be a fair and efficient means of adjudicating the action, rendering class litigation superior to alternative means. (See Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1021.)

            Here, Plaintiff alleges each Class Member was subject to the same written policies and that Defendant’s own records reveal Class Members were not provided compliant meal periods and expenses reimbursements. Where the same alleged conduct forms the basis for Plaintiff and class claims, it is common for settlement purposes. (Fireside Bank v. Superior Court (2007) 40 Cal. 4th 1069, 1090.) Plaintiff also can and will continue to protect the interests of the Class. Wershba, (Id., at p. 238.) Plaintiff accepted the risks of serving as a class representative, spent significant time assisting in the prosecution of the action, and placed the interest of the class above his own. (Khoury Decl. ¶48; Clark v. American Residential Services, LLC (2009) 175 Cal.App.4th 785, 804-807.) Plaintiff consented in writing to the division of fees between Mesriani Law Group, APLC (40%) and Cohelan Khoury & Singer (60%). Khoury Decl. ¶49. Finally, Plaintiff’s attorneys are qualified to conduct the litigation and Plaintiff’s interests are not averse to the interest of the Class. (McGhee v. Bank of Am. (1976) 60 Cal.App.3d 442, 450; Khoury Decl. ¶¶2-8, 47; Mesriani Decl. ¶¶2-8. 10.)

Based on the foregoing, the Court finds that the conditions for provisional class certification are met.

It is so ordered.

Dated:  April    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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