Fajardo v. Veg-Fresh Farms, Inc., et al

Civil Service Com’n (9th Cir. 1982) 688 F.2d 615, 625].) Nevertheless, the settlement is entitled to a “presumption of fairness . . . where: (1) the settlement is reached through arm’s-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 94) the percentage of objectors is small.” (Kullar, supra, 168 Cal.App.4th at p. 128 [quoting Dunk, supra, 48 Cal.App.4th at p. 1802].)

Provisional Class Certification at Preliminary Approval Although a lesser standard can be used to provisionally certify a settlement class, the court still needs to review and consider each element for certification. (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 859.) But, as settlement eliminates the need for trial, “the case management issues inherent in ascertainable class determination need not be confronted.” (Ibid.) A class should be certified when “the question is one of a common or general interest, of many persons, or when parties are numerous and it is impracticable to bring them all before court.” (Code Civ.

Proc., § 382.) There must be both an ascertainable class and a well-defined community of interest, which includes predominate questions of law or fact, class representatives with claims typical of the class, and class representatives who can adequately represent the class. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.)

Settlement Notice “If the court has certified the action as a class action, notice of the final approval hearing must be given to the class members in the manner specified by the court. The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement.” (Rules of Court, rule 3.769(f); Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 251.) “The purpose of the class notice in the context of a settlement is to give class members sufficient information to decide whether they should accept the benefits offered, opt out and pursue their own remedies, or object to the settlement.

As a general rule, class notice must strike a balance between thoroughness and the need to avoid unduly complicating the content of the notice and confusing class members. Here, again, the trial court has broad discretion. (Wershba, supra, 91 Cal.App.4th at p. 252.) The manner of notice shall be by means reasonably calculated to apprise the class members of the settlement. (Rules of Court, rule 3.766(f).) The standard is “whether the notice has ‘a reasonable chance of reaching a substantial percentage of the class members.’” (Wershba, supra, 91 Cal.App.4th at p. 251.)

The court must consider the interest of the class, type of relief obtained, the state of the individual class members, the costs of notifying the class members, the resources of the parties, the possible prejudice to the class members who do not receive notice, and the res judicata effect on the class members. (Rules of Court, rule 3.766(e).)

The Proposed Settlement This is a putative wage-and-hour class and representative action. Plaintiff seeks to represent all current and former non-exempt employees for Defendant working in California during the statutory period. (Compl., ¶1.) On September 1, 2020, Plaintiff filed her notice letter with the LWDA in furtherance of a Private Attorneys General Act (PAGA) claim. On or about February 11, 2021, he filed a Complaint for violations relating to (1) overtime wages; (2) minimum wages: (3) meal periods; (4) rest breaks; (5) waiting time penalties; (6) accurate wage statements; as well as (7) violation of the unfair competition law; (8) penalties pursuant to Section 210; (9) penalties pursuant to Section 226.3; (10) penalties pursuant to Section 558; (11) penalties pursuant to Section 1197.1; and (12) civil penalties pursuant to the Private Attorneys General Act (PAGA).

After commencing the various suits, the Plaintiffs sought and received extensive discovery, including a substantial sampling of time and payroll records. (Lazar Decl., ¶5.) Plaintiff also received policy documents. (Ibid.) Thereafter, on July 8, 2022, the parties engaged in a full-day, arms-length mediation with Tripper Ortman, an experienced neutral. (Lazar Decl., ¶7.) On September 5, 2024, the parties participated in a second full-day mediation with Kevin Barnes, who likewise is an experienced neutral. (Lazar Decl., ¶7.)

The parties reached settlement and executed a long-form settlement agreement by February of 2026. (Lara Decl., Exh. 1 [Settlement].) Notice of the settlement was sent to the LWDA on February 27, 2026. (Lazar Decl., ¶13 & Exh. 3 [Email to LWDA].) The class size is currently estimated at 322 and 76 PAGA aggrieved employees. For purposes of settlement, the class period will reach from October 14, 2018, to December 7, 2019. (Settlement, ¶1.31.) The PAGA period is from September 1, 2019, to December 7, 2019. (Lazar Supp.

Decl., ¶¶6-7 & Exh. 2.)

The settlement is proposed on the following terms: Defendants will pay a gross, nonreversionary settlement amount of $125,000.00, from which will be deducted (1) $43,750.00 for Class Counsel’s attorneys’ fees (exceeding 35% of the total);1 (2) costs not to exceed $35,000.00; (3) Plaintiff’s enhancement fee of no more than $7,500.00; (4) claims administration fees of no more than $7,990.00; and (5) PAGA penalties of $6,250.00 (of which $4,687.50, or 75%, will go to the LWDA and $1,562.50, or 25%, will go to the aggrieved employees).

The parties estimate this will leave a wage-and-hour only net settlement amount of a nonreversionary $24,510,00. This amount would be split by the class of approximately 322 employees in proportionate shares determined by number of workweeks within the Settlement Class Period. The average per class member would be $76.12. Twenty percent (20%) of the payout would be representative of wages, and the remaining eighty percent (80%) would be representative of penalties and interest. (Settlement, ¶3.2.4.1.)

Given the 76 PAGA aggrieved employees, the average PAGA payout would be $20.56.

1 The Court is usually not inclined to grant 35% in attorneys’ fees unless there is some sort of unusual complexity or risk that would warrant such an upward deviation. On motion for final approval, Counsel will provide an analysis of that complexity or risk that counsel believes warrants this upward departure.

The amount of the settlement is appropriate given the strength of the case, especially in light of Counsel’s estimated potential liability exposure. (Lazar Decl., ¶¶17-31 & 33.) However, the lower actual settlement appears fair and reasonable when calculated to include analysis of the possibility the class would not be certified; various potential defenses; as well as the potential appeal of any judgment should Plaintiffs be successful in this venue. Given the presumption of fairness, the Court would find the figure sufficient to satisfy the Kullar requirement.

Further, adequate discovery and investigation has occurred. There is no evidence of fraud or collusion. Class Counsel are well qualified to represent the class. The settlement was reached through an arms-length negotiation with the assistance of an experienced and wellrespected mediator. The deductions from the gross settlement fund (attorneys’ fees,2 costs,3 administration fee, incentive award, PAGA penalties, and taxes) appear to be reasonable and appropriate and are, therefore, preliminarily approved in the “not to exceed” amounts in the motion.

The proposed notice is, also, adequate. Counsel and the representative are appointed conditionally to represent the class. The motion is granted. The court will schedule a hearing to consider final approval at the closest available date to the date recommended by counsel. The Court preliminarily approves the settlement and (1) appoints Bibiyan Law Group, PC, conditionally as Settlement Class Counsel; (2) appoints Fernando Carrillo Fajardo as Class Representative; (3) approves Apex Class Action LLC as Settlement Administrator; (5) preliminarily finds the settlement fair, reasonable, and adequate; and (6) approves the form and content of the proposed Class Notice and directs the mailing of the same.

At final approval, counsel must advise the court of any pending cases that will be affected by approval of the settlement. Counsel must provide the exact number of class members and workweeks for the class settlement and the exact number of PAGA aggrieved employees and pay periods for the PAGA settlement.

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2 Counsel must provide a full lodestar analysis in the motion for final approval.

3 Costs must be documented. The court does not award costs for LEXIS or Westlaw usage (which are considered items of overhead), faxes (also overhead), or photocopying in excess of $0.06 per page.

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