Flores Amado v. Odyssey Agricultural Development LLC

Plaintiffs bear the burden of establishing the propriety of class treatment with admissible evidence. (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470 [trial court’s ruling on certification supported by substantial evidence generally not disturbed on appeal]; Lockheed Martin Corp. v. Superior Court (2003) 29 Cal.4th 1096, 1107-1108 [plaintiff’s burden to produce substantial evidence].)

Here, the proposed class members are 40 to 60 non-exempt employees who worked at defendants’ Mendota farm during April, May, June, and July of 2023 in the 14

crew of agricultural workers recruited by a Carlos Lopez. Based on this, it does appear that the numerosity criteria is met. While ascertainability may prove more challenging, plaintiffs have clarified to the court that community organizer Fritz Conle has maintained contact with a group of more than 40 workers who would make up the class. As such, the court is satisfied that the ascertainability criteria is sufficiently met.

Under the community of interest requirement, the class representative must be able to represent the class adequately. (Caro v. Procter & Gamble (1993) 18 Cal.App.4th 644, 669.) “[I]t has never been the law in California that the class representative must have identical interests with the class members . . . The focus of the typicality requirement entails inquiry as to whether the plaintiff’s individual circumstances are markedly different or whether the legal theory upon which the claims are based differ from that upon which the claims of the other class members will be based.” (Classen v. Weller (1983) 145 Cal.App.3d 27, 46.)

Usually, in wage and hour class actions, the distinctive feature that permits class certification is that the employees have the same job title or perform similar jobs, and the employer treats all in that discrete group in the same allegedly unlawful fashion. In Brinker Restaurant v. Superior Court (2012) 53 Cal.4th 1004, 1017, “no evidence of common policies or means of proof was supplied, and the trial court therefore erred in certifying a subclass.”

Common questions in this class include that defendant failed to pay overtime and minimum wages, failed to provide compliant meal and rest periods and accurate wage statements, failed to pay timely wages upon termination, and violation of Unfair Competition Laws. The motion is supported by a declaration from counsel and plaintiffs.

The adequacy of representation component of the community of interest requirement for class certification comes into play when the party opposing certification brings forth evidence indicating widespread antagonism to the class suit. “‘The adequacy inquiry ... serves to uncover conflicts of interest between named parties and the class they seek to represent.’ [Citation.] ‘... To assure “adequate” representation, the class representative's personal claim must not be inconsistent with the claims of other members of the class. [Citation.]’ [Citation.]” (J.P. Morgan & Co., Inc. v. Superior Court (2003) 113 Cal.App.4th 195, 212.)

"[T]he adequacy inquiry should focus on the abilities of the class representative's counsel and the existence of conflicts between the representative and other class members." (Caro v. Procter & Gamble Co. (1993) 18 Cal.App.4th 644, 669.) Counsel has shown that the law firm is experienced and that the firm has successfully litigated other class actions. (Mallison Decl., ¶¶ 3-5.) Therefore, it does appear that class counsel has shown that the firm is adequate to represent the interests of the class.

The community of interest element is satisfied.

Settlement Approval

“[I]n the final analysis it is the Court that bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent 15

merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the rights of the absentee class members when deciding whether to approve a settlement agreement.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 129.) “[T]o protect the interests of absent class members, the court must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished ... [therefore] the factual record must be before the ... court must be sufficiently developed.” (Id. at p. 130.)

In support of the proposed settlement amounts, counsel has provided counsel’s declarations. The declaration states that counsel reviewed the records. (Mallison Decl., ¶ 22; Bolce Decl., ¶ 2.) However, it is also noted that defendants do not have comprehensive records. (Bolce Decl., ¶ 7.) Plaintiffs provide that there are likely 40 to 60 class members. There is no discussion of the average hours worked or hourly wages of the class members and limited discussion of the evidence supporting any figures used by the parties to arrive at the settlement before the court. Plaintiffs’ counsel acknowledges reliance on information gleaned by the community organizer, who met with workers. (Bolce Decl., ¶ 7.)

Plaintiffs’ counsel seeks a fee award based on 40% of the gross settlement. While it is true that courts have found fee awards based on a percentage of the common fund are reasonable, the California Supreme Court has also found that the trial court has discretion to conduct a lodestar “cross-check” to double check the reasonableness of the requested fees. (Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 503-504 [although class counsel may obtain fees based on a percentage of the class settlement, courts may also perform a lodestar cross-check to ensure that the fees are reasonable in light of the number of hours worked and the attorneys’ reasonable hourly rates].)

Here, counsel has provided a “lodestar summary report” with 15 individuals listed, hourly rates ranging between $277 and $1,227, and the number of hours worked by each individual. The court has insufficient information about each individual, what their role was in this litigation, or the experience justifying their hourly rates. As such, the court cannot assess whether the requested attorney’s fees are fair and appropriate.

The motion seeks preliminary approval of a $10,000 “service award” to each of the plaintiffs. This award is in addition to plaintiffs’ share of the settlement fund as a class member. There is no “presumption of fairness” in review of an incentive fee award. (Clark v. Residential Services LLC (2009) 175 Cal.App.4th 785, 806.) This amount is higher than the court would typically award. However, plaintiffs have each provided their declarations and have demonstrated the risks taken in becoming involved as representatives as well as their contributions toward resolving this matter.

The parties agreed to use CPT Group as settlement administrator. The motion represents that the cost of administration will not exceed $10,000. A declaration from a representative at CPT Group was not included. However, counsel has attached a bid to administer the settlement for $5,000, with a breakdown of the estimated administrative costs. (Bolce Decl., Exh. 1.)

Impermissible Opt-In 16

The court previously indicated a concern regarding the plan to utilize class membership verification declarations to determine who will be in the class. Plaintiffs were provided an opportunity to file supplemental briefing addressing the court’s concern that membership verification declarations amounted to an impermissible opt-in to the settlement.

Plaintiffs argue that these verifications do not amount to an impermissible opt-in. They assert that the verification process will confirm whether an individual is part of the class and whether the individual elects to participate in the settlement. Plaintiffs acknowledge that the declarations appear similar to an opt-in structure which is disfavored under the Federal Rules of Civil Procedure Rule 23, but assert that this rule does not govern here. Plaintiffs do not cite to any legal authority for this position.

It is settled law “that under Rule 23, prior to the determination of liability, members of a plaintiff class may not be advised that unless they affirmatively request inclusion in class or perform some other act they will be excluded.” (Hypertouch, Inc. v. Superior Court (2005) 128 Cal.App.4th 1527, 1546, emphasis added.) Requiring individuals to affirm their participation in the class will likely reduce the class size, acting as a bar to otherwise appropriate class members, and can open defendants to the possibility of repeated litigation. (Id. at p. 1542.)

The court does not find plaintiffs’ arguments persuasive. The proposed declarations are designed to affirm participation in the class, which is impermissible. (Id. at p. 1546.) Additionally, it appears that this issue may be resolved by addressing the appropriate means for providing notice to potential class members or by recognizing that here, instead of defendants providing a list of employees, the list may come from the another source. The court will not be ordering potential class members to sign membership verification declarations as these amount to an impermissible opt-in to the class settlement.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 07/22/26. (Judge’s initials) (Date)

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