Mendoza v. Ameriguard Security Services, Inc.

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, supra, 29 Cal.4th at pp. 1107-1108 [plaintiff’s burden to produce substantial evidence].)

Counsel represents defendant has represented that there are approximately 268 class members and 164 aggrieved employees. (DiGiacco Decl., ¶ 5.) However, no 3

admissible evidence is submitted as to this number. Nor is there any evidence of ascertainability, such as a showing that the class members are identifiable from defendant’s own records. A conclusory statement to this effect in the points and authorities is insufficient. In a future motion for preliminary approval, a declaration from defendant should be submitted, establishing the number of class members and ascertainability.

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.”

Plaintiffs make no effort to establish community of interest or typicality. Plaintiffs submit declarations in support of the motion, but the declarations are solely designed to support the service payment requests. Again, conclusory statements in the points and authorities are insufficient.

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.) This consideration is satisfied, as counsel has substantial class action experience.

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 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 4

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.)

Clark v. America Residential Services (2009) 175 Cal.App.4th 785 vacated approval of a class settlement coupled with class certification, an award of $25,000 each to two named plaintiffs, and more. The problem was that the plaintiffs presented “no evidence regarding the likelihood of success on any of the 10 causes of action, or the number of unpaid overtime hours estimated to have been worked by the class, or the average hourly rate of pay, or the number of meal periods and rest periods missed, or the value of minimum wage violations, and so on.” (Id. at p. 793.)

Counsel provides a very generic and generalized discussion of potential risks of moving forward to trial and class certification. (DiGiacco Decl., ¶¶ 13-15.) These generalized statements could be made of every class action. There is no showing of true analysis of the actual strengths and weaknesses of the claims.

Counsel provides valuations for each of the claims. (DiGiacco Decl., ¶¶ 16-23.) These valuations are lacking clear explanations for why these valuations are accurate or reasonable. For example, with regards to the claim for unpaid wages and overtime, counsel explains, “Based on the data provided by Defendant, Class Members were underpaid for an average of 10 minutes per shift, across 14,000 workweeks for 268 employees totaling a minimum wage liability of $179,662.22. Further, a total of 80% of all non-exempt employees suffered from a regular rate violation, and 55% of all pay periods included a regular rate of pay violation, resulting in an estimated underpayment of $18,566.00, including interest due, plus reasonable attorneys’ fees and costs.

Taking into account the various risks associated with litigation, including but not limited to, proving liability and obtaining class certification, the appropriate discounted valuation for these claims is $20,485.16.” (DiGiacco Decl., ¶ 16.) There is no explanation how counsel came to these violation rates, and whether they are supported by the documentation obtained from defendant.

Similarly, with regards to the meal period claim, counsel states, “Assuming that it could be proven that 15% of all recorded first meal periods were recorded after the end of the fifth hour of work, and 5% of all shifts were shorter than 30 minutes, Defendant would be liable for $750,148.00 in unpaid meal period premiums and interest due, plus reasonable attorney’s fees and costs. Taking into account the various risks associated with litigation, including but not limited to, proving liability and obtaining class certification, the appropriate discounted valuation for these claims is $77,521.27.” (DiGiacco Decl., ¶ 17.)

It is unclear where these percentages came from, or how they provide a reliable basis for valuing the claim. Valuations of the other claims are also based on unexplained assumptions about what plaintiffs might prove. (See DiGiacco Decl., ¶¶ 18 [“Assuming what Plaintiffs and other non-exempt employees uniformly report can be proven that they were often unable to take 2-3 uninterrupted rest periods during their workweek ...”], 20 [“Assuming that these individuals were not timely paid all wages due to them upon termination ...”], 21 [“If Plaintiffs proved that Defendant willfully failed 5

to fully reimburse business-related expenses ...”]. Unsupported assumptions and guesswork do not provide a basis for valuing the claims asserted. This appears to be little more than guesswork. There is no valuation of the UCL claim. (DiGiacco Decl., ¶¶ 22-23.)

Nor can the court preliminarily approve the requested award of attorneys’ fees and costs. Plaintiffs’ counsel seek $50,000 in attorneys’ fees, which is 1/3 of the total gross settlement, plus costs of up to $30,000. 1/3 is within the range of fees that have been approved by other courts in class actions, which frequently approve fees based on a percentage of the common fund. (City & County of San Francisco v. Sweet (1995) 12 Cal.4th 105, 110-11; Quinn v. State (1975) 15 Cal.3d 162, 168; see also Apple Computer, Inc. v. Superior Court (2005) 126 Cal.App.4th 1253, 1270; Lealao v. Beneficial California, Inc. (2000) 82 Cal.App.4th 19, 26.)

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].)

The court prefers to do a lodestar analysis as a cross-check on the reasonableness of the fees. Counsel provides no information whatsoever to enable the court to do this analysis. Nor is any documentation provided to show that the $30,000 requested for costs is reasonable.

The motion seeks preliminary approval of $7,500 enhancement payments to both named plaintiffs – Namoi Mendoza and Heather Alarcon – as well as for Kahari Theron who claims to be a plaintiff. To the court’s knowledge Kahari is not a named plaintiff in either consolidated action. The requested enhancement payments for Mendoza and Alarcon are excessive. Plaintiffs submitted declarations with generalized information about their services to the class. Alarcon estimates spending 10-12 hours in total in service to the class and working on this case (Alarcon Decl., ¶ 10), and Mendoza 35-40 hours (Mendoza Decl., ¶ 8). Alarcon’s minimal services do not appear to warrant more than a $1,500 enhancement. The court will preliminarily approve $5,000 for Mendoza.

The settlement provides that class administrator ILYM Group will be paid $7,500 to administer the settlement. No declaration from ILYM Group is submitted, nor is there information about any other bids obtained from other settlement administrators. Insufficient information is provided to approve this allocation.

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: JS on 6/18/2026. (Judge’s initials) (Date)

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