Ramirez v. Fort Washington Golf and Country Club

“Class certification requires proof (1) of a sufficiently numerous, ascertainable class, (2) of a well-defined community of interest, and (3) that certification will provide substantial benefits to litigants and the courts, i.e., that proceeding as a class is superior to other methods. In turn, the community of interest requirement embodies three factors: (1) predominant common questions of law or fact; (2) class representatives with claims or defenses typical of the class; and (3) class representatives who can adequately represent the class.” (In re Tobacco II Cases (2009) 46 Cal.4th 298, 313.)

Plaintiff bears 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].) 7

Counsel states that there are approximately 169 class members and 113 aggrieved employees. However, no 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 or PAGA class claims, 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.”

Plaintiff has submitted no evidence on this point. All that is submitted is conclusory statements in the points and authorities. Plaintiff’s declaration must attest to the violations experienced. Evidence must be submitted showing with declarations and written policies showing that the same practices and policies applied to all members of the class.

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 8

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.)

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.)

Plaintiff’s counsel has provided no evidence whatsoever that would enable the court to find that the settlement is fair and reasonable. There is no valuation of the various claims and causes of action, and no discussion of the strengths and weaknesses of the claims.

Insufficient information is provided to enable the court to preliminarily approve the award of attorney’s fees and costs. Plaintiff’s counsel seeks up to $160,000 in attorney’s 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 about the billing rates or time expended on the matter. Counsel must provide their billing rates, show that the rates are reasonable, and detailed information about the time spent on the matter (billing records). Counsel also must document the costs incurred.

The motion seeks preliminary approval of a $10,000 enhancement payment to plaintiff. Plaintiff estimates that he spent around 58.5 hours on the matter. (Ramirez Decl.,

¶ 23.) Based on the information provided, the court will preliminarily approve a $5,000 for the enhancement.

However, plaintiff also asserts numerous individual claims, in addition to the class and representative claims. Plaintiff must disclose to the court whether his individual claims were settled as well, and the terms of the settlement, along with a copy of the settlement agreement.

Plaintiff seeks approval of $25,000 for settlement administration paid to Phoenix Settlement Administrators. The memorandum of points and authorities states that “Phoenix provided a ‘not to exceed’ quote $25,000 to administer the settlement. (VPS Decl. ¶ 25.)” (MPA 12:18-22.) Yet counsel’s declaration states that Phoenix’s quote was $10,000. (Sorrentino Decl., ¶ 25.) The quote from Phoenix is not provided, nor is there any indication that the parties sought bids from other settlement administrators (just the vague statement that the parties agreed on Phoenix “[a]fter researching multiple reputable settlement administrators ...” (Sorrentino Decl., ¶ 25), whatever that means. The moving papers are inconsistent and ambiguous in this regard.

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: lmg on 7-27-26. (Judge’s initials) (Date)

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