Hercules v. Pacific States Industries, Inc.

Settlement Amount to compensate him for the responsibilities, time, effort, and risks involved in coming forward on behalf of the proposed class as well as his general release which is broader than the release of the proposed class; (9) Finally approving the allocation of $31,250.00 for penalties pursuant to the California Labor Code Private Attorneys General Act of 2004, of which 65% (i.e., $20,312.50) goes to the California Labor and Workforce Development Agency (“LWDA”) from the Gross Settlement Amount, with the remaining 35% (i.e., $10,937.50) payable to the aggrieved employees; (10) Binding all participating class members to the terms of the Settlement Agreement, including the release specified therein; and (11) Retaining jurisdiction to enforce the Settlement Agreement.

1. Pleadings On June 20, 2024, Plaintiff filed a complaint against Defendant Pacific States Industries, Inc. for: 1) Failure to Pay All Minimum Wages; 2) Failure to Pay All Overtime Wages; 3) Failure to Provide Rest Periods and Pay Missed Rest Period Premiums; 4) Failure to Provide Meal Periods and Pay Missed Meal Period Premiums; 5) Failure to Maintain Accurate Employment Records; 6) Failure to Pay Wages Timely during Employment; 7) Failure to Pay All Wages Earned and Unpaid at Separation; 8) Failure to Indemnify All Necessary Business Expenditures; 9) Failure to Furnish Accurate Itemized Wage Statements; and, 10) Violations of California’s Unfair Competition Law (Bus. & Prof.

Code, § 17200 et seq.). On August 26, 2024, Plaintiff filed a first amended complaint which added an eleventh cause of action for Penalties Pursuant to Labor Code Private Attorneys General Act of 2004. Defendant’s answer to the first amended complaint contains a general denial and lists ninety-two affirmative defenses.

2. Final Approval On February 11, 2026, Plaintiff’s motion for preliminary approval was granted preliminarily certifying the settlement class for purposes of settlement. After preliminary approval, the court determines whether the settlement is fair, adequate, and reasonable in a final hearing. (CRC 3.769(g); Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; see also Officers for Justice v. Civil Service Com. (9th Cir. 1982) 688 F. 2d 615, 625; Fed. Rule of Civ. Proc., Rule 23(e).) The trial court has broad powers to determine whether the settlement is fair. (Dunk v.

Ford, supra, at 1801; Mallick v. Superior Court (1979) 89 Cal. App. 3d 434.) The purpose of this requirement is “the protection of those class members, including the named plaintiffs, whose rights may not have been given due regard by the negotiating parties.” (Officers for Justice v. Civil Service Com., supra, 688 F. 2d at 624.) At this hearing, the court should consider relevant factors, such as the strength of Plaintiffs' case; the risk, expense, complexity, and likely duration of further litigation; the risk of maintaining class action status through trial; the amount offered in settlement; the extent of discovery completed and the stage of the proceedings; the experience and views of counsel; the presence of a governmental participant; and the reaction of the class members to the proposed settlement.

However, the list is not fixed and the factors which the court considers must be tailored to each case. (Dunk v. Ford, supra, at 1801.) Ultimately, “the inquiry ‘must be limited to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.’ [Citation.]” (Ibid.) The determination is in the end ‘“an amalgam of delicate balancing, gross approximations and rough justice.” (Officers for Justice v.

Civil Service Com. (9th Cir.1982) 688 F.2d 615, 625; see also Dunk v. Ford, supra, at 1801, quoting Officers for Justice, supra.) However, while the party seeking settlement approval has the burden of showing the settlement is “fair and reasonable,” nevertheless “there is a presumption of fairness when: (1) the settlement is reached through arm's-length bargaining; (2) 2

investigation and discovery are sufficient to allow counsel and the trial court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Reed v. United Teachers Los Angeles (2012) 208 Cal.App.4th 322, 337; see also Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43; Dunk v. Ford, supra, at 1801.)

3. Presumption of Fairness As detailed in this court’s preliminary approval of the settlement, a presumption of fairness exists in this case as the settlement was reached through arm's-length bargaining with the help of an experienced mediator; investigation and discovery were sufficient to allow counsel and the trial court to act intelligently; and, counsel is experienced in similar litigation. In addition, none of the class members have objected to the settlement.

4. Notice to Class On or about March 17, 2026, Class Administrator Simpluris mailed the Class Notice to four hundred thirty-one (431) individuals. (Weisel decl., ¶6.) The Class Notice was mailed in English and in Spanish and published on Simpluris’s website. (Weisel decl., ¶6, Exhibit A.) The deadline for Class Members to submit a Request for Exclusion or Object to the Class Settlement was May 1, 2026. (Weisel decl., ¶8.) Simpluris did not receive any requests for exclusion or objections. (Id., ¶¶9, 10.)

The Net Settlement Amount of $144,083.33 available to pay Class Members was determined by subtracting the Class Counsel Fees and Cost Payment ($124,166.67), Class Representative Service Award ($5,000.00), the LWDA PAGA Payment ($20,312.50), Individual PAGA Payments ($10,937.50), and the Administration Expenses Payment ($8,000.00) from the Gross Settlement Amount of $312,500.00. (Weisel decl., ¶12.) The average estimated Individual Class Payment is $334.30, the highest estimated Individual Class Payment is $490.78, and the lowest estimated Individual Class Payment is $4.59. (Weisel decl., ¶13.)

The average estimated Individual PAGA Payment is $25.37, the highest estimated Individual PAGA Payment being $36.57, and the lowest estimated Individual PAGA Payment being $0.68. (Id., ¶15.) Simpluris’s fees and costs amount to $8,000. (Id., ¶16.)

5. Attorney Fees and Costs A finding that the settlement is fair is not dispositive of the attorney fees issue. This court assumes a fiduciary role for the class members in evaluating a request for an award of attorney's fees from the common fund. (In re Mercury Interactive Corp. Securities Litigation (9th Cir. 2010) 618 F.3d 988, 994.) The distribution of fees must bear some relationship to the services rendered. (Rebney v. Wells Fargo Bank (1990) 220 Cal.App.3d 1117, 1142.) 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.) The latter method is most commonly used in statutory feeshifting schemes to reward attorneys for engaging in socially useful litigation. It is also applied when the type of recovery does not allow easy calculation of the settlement's value. Class Counsel are seeking a percentage of the settlement fund. In determining what percentage is reasonable, courts commonly consider: the percentage likely to have been negotiated between private parties in a similar case (e.g., 30-40% in tort cases); percentages applied in other class actions (usually around 25%); the quality of class counsel; and the size of the award. (See Weil, et al, Civil Procedure Before Trial, (TRG 2024) § 14:145.3, citing In re Ikon Office Solutions, Inc.

Secur. Litig. (ED PA 2000) 194 FRD 166, 193.) Use of the percentage method is particularly appropriate in “common fund” cases such as this one, as it simply awards counsel some percentage of the settlement fund. (In re Ikon Office Solutions, Inc. Secur. Litig, supra, at p. 193.) This method theoretically aligns the interests of 3

counsel and class more closely than does the lodestar method: a larger recovery with fewer hours expended benefits all parties. (Ibid.) With respect to the contingent nature of litigation, courts tend to find above-market-value fee awards more appropriate in this context given the need to encourage counsel to take on contingency-fee cases for plaintiffs who otherwise could not afford to pay hourly fees. (Bellinghausen v. Tractor Supply Company (N.D. Cal. 2015) 306 F.R.D. 245, 260.) Moreover, when counsel takes cases on a contingency fee basis, and litigation is protracted, the risk of nonpayment after years of litigation justifies a significant fee award. (Ibid.)

Here, Class Counsel took this matter on a contingency basis with the corresponding risk of potentially failing to recover damages. This action has been pending for two years. Class Counsel request $104,166.67 in attorney fees, or approximately 33% of the common fund, and $20,000 in costs. Counsel incurred $20,180.04 in expenses. (Smith decl., Exhibit 3.) The amounts requested are reasonable under the circumstances.

6. Service Award Plaintiff seeks a service payment of $5,000. Class Counsel’s declaration supports the requested fee award based upon Plaintiff’s assistance to counsel and the risk associated with litigating the action. (Smith decl., ¶¶42-43.)

7.

Conclusion

Based on this court’s review of the motion and the terms of the settlement, the settlement is “fair, adequate and reasonable” and the rights of the class members have been protected such that there is no sign of fraud, collusion, or unfairness. Accordingly, the motion for final approval of the class action settlement is granted. The court will sign the proposed order.

2. 24CV04975, Looney v. Amerigo, LLC.

Defendants Amerigo, LLC dba Kirway Express and Joseph Ismael (“Defendants”) have filed a motion to vacate the default judgment entered against them in this case. The motion is made on the grounds that Defendants were not properly served with summons and complaint.

1.

Procedural History

Default judgment was entered in this case on December 10, 2024. On January 28, 2025, Defendants filed a motion to set aside the default judgment. The hearing on that motion was set for April 30, 2025. On that date, this court continued the matter because defendant Amerigo, LLC, was unrepresented. Defendant Ismael had filed the motion in pro per on behalf of himself and the LLC; however, defendant Ismael is not an attorney and may not represent an LLC. The hearing was continued to August 20, 2025.

On August 20, 2025, this court denied the motion as proof of service of the motion on Plaintiff Gary E. Looney had not been filed and no additional documents had been filed substituting in an attorney to represent Amerigo, LLC. Previously unbeknownst to this court department, on January 9, 2025, prior to filing the motion to vacate the default judgment, Defendants filed an appeal to the appellate division of the superior court. That appeal raises the same issues presented in this motion and the prior motion to vacate the default judgment.

That appeal has been ongoing. The hearing is currently set for June 23, 2026. Plaintiff raised the issue of Defendants’ pending appeal in his opposition. Defendants have not addressed it in their reply. However, as the appeal may resolve the issue and render this motion moot, and to avoid inconsistent rulings on the issue, this court will continue the hearing on this motion to allow Defendants’ appeal to be finalized. 4