Pablo Torres Santiago v. James A. Quaglino, Inc., et al.

1 The motion was served on counsel for Defendants and counsel has notice of the hearing date; no opposition was filed.

10-13.) There are 38 participating members in the FEHA Settlement class and 66 participating class members in the Wage and Hour Settlement class. (Tran Decl., ¶ 14.)

However, both notices provide that class members “will be notified of the date and time of the Final Settlement Hearing by the Settlement Administrator.” (Tran Decl., Exs. A, B.) Neither include the date and time of the final settlement hearing. There is no further evidence that class members were notified of the date and time of the Final Settlement Hearing.

Plaintiffs must submit evidence that FEHA Settlement class members and Wage and Hour Settlement class members were provided with notice of the date and time of this final approval hearing.

II. Fairness, Adequacy, and Reasonableness of Settlement

The net settlement amount for the FEHA Settlement class is $949,325.73 after subtracting the requested Class Counsel Fees Payment ($650,000.00), the amount requested for Class Counsel Litigation Expenses Payment ($5,157.27), the requested Class Representative Service Payments totaling $15,500.00 ($7,500 for Pablo Torres, and $2,000 each for Misael De La Cruz, Roman Nazario Nolasco, Luis Nazario and Isaac Nazario), and the requested Administration Expenses Payment ($4,990.00) from the Gross Settlement Amount ($1,625,000.00.). (Tran Decl., ¶¶ 15, 21; Ex. C.)

The highest individual FEHA Settlement class payment is currently estimated to be approximately $41,304.56, the average FEHA Settlement class payment is currently estimated to be approximately $24,982.97, and the lowest individual FEHA Settlement class payment is currently estimated to be approximately $217.39. (Tran Decl., ¶ 16.)

The net settlement amount available to for the Wage and Hour Settlement class is estimated to be $100,342.73 and was calculated by subtracting the requested Class Counsel Fees Payment ($90,000.00), the amount requested for Class Counsel Litigation Expenses Payment ($5,157.27), the requested Class Representative Service Payments totaling $4,500.00 ($2,500 for Pablo Torres, and $500 each for Misael De La Cruz, Roman Nazario Nolasco, Luis Nazario and Isaac Nazario), and the PAGA Penalties ($25,000.00) from the Gross Settlement Amount ($225,000.00). (Tran Decl., ¶ 17, Ex. C.)

The highest individual Wage and Hour Settlement class payment is currently estimated to be approximately $3,538.94, the average individual Wage and Hour Settlement class payment is currently estimated to be approximately $1,520.34, and the lowest individual Wage and Hour Settlement class payment is currently estimated to be approximately $14.56. (Tran Decl., ¶ 18.)

Pursuant to the Agreement, 35% of the PAGA Payment ($8,750.00) will be allocated to Aggrieved Employees. There are 34 Aggrieved Employees who worked a total of 2,881 Pay Periods during the PAGA Period. The highest individual PAGA payment is approximately $324.97, the average individual PAGA payment is approximately $257.35, and the lowest individual PAGA payment

is approximately $6.07. (Tran Decl., ¶¶ 19, 20.)

Having reviewed the claims at issue, Plaintiff’s arguments in the memorandum of points and authorities, and the evidence submitted in support of the motion, the Court finds that the proposed settlement is fair and reasonable. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801- 1802 [factors to consider in fairness determination].)

III. Requested Fees and Payments

Even without an objection to the requested attorney fees and costs, the Court has a duty to protect the rights of all parties, and to prevent abuses which might undermine the proper administration of justice. (Howard Gunty Profit Sharing Plan v. Superior Court (2001) 88 Cal.App.4th 572, 581.)

As an initial matter, the Court finds the enhancement awards for the Plaintiffs in this action. (Mtn. pp. 29-30.) Apex’s costs in the total amount of $4,990 are also reasonable. (Tran Decl., ¶ 21.)

As to litigation costs, counsel declares that costs have exceeded the agreed upon amount of $10,314.54, but the firm is not seeking reimbursement for additional expenses. (Deason Decl., ¶ 6.)

Counsel requests 40% of the gross settlement amount or $790,000 as an award of attorneys’ fee, split between two law firms, with an 85% portion being assigned to Deason Law, P.C., and the remaining 15% distributed to Of Counsel Anthony P. Raimondo. (Mtn., pp. 14-15.)

Counsel Dax B. Deason declares that his current billing rate for complex employment discrimination cases is $742 per hour. (Deason Decl., ¶ 3.) He declares that he has decades of experience. (Deason Decl., ¶ 4 [detailing past experience in complex employment law].) He further declares that he was retained by Plaintiffs based on a 40% contingency fee and that all the effort, time, research, legal work, and expenses have been advanced by the firm with no renumeration. (Deason Decl., ¶ 5.) Deason declares that he retained the services of Antony P. Raimondo to act as of counsel for the prosecution of the class action. (Deason Decl., ¶ 2.) The motion cites to a declaration from attorney Raimondo, but no declaration from him was filed in support of this motion.

“[U]se of the percentage method to calculate a fee in a common fund case, where the award serves to spread the attorney fee among all the beneficiaries of the fund, does not in itself constitute an abuse of discretion.” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 503.)

However, this Court generally requires a lodestar cross-check for comparison to ensure that any percentage fee is reasonable. (Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 558 [the lodestar is generally the primary method for establishing the reasonable amount of attorney’s fees, but a percentage figure may be used as long as it accurately reflects the marketplace]; PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [the experienced trial judge is the best judge of the value of professional services rendered in his court].)

A lodestar cross-check thus provides a mechanism for bringing an objective measure of the work performed into the calculation of a reasonable attorney fee. If a comparison between the percentage and lodestar calculations produces an imputed multiplier far outside the normal range, indicating that the percentage fee will reward counsel for their services at an extraordinary rate even accounting for the factors customarily used to enhance a lodestar fee, the trial court will have reason to reexamine its choice of a percentage. (Laffitte v. Robert Half Internat. Inc., supra, 1 Cal.5th at p. 504.)

A lodestar cross-check does not require exhaustive scrutinization of every hour and is not necessary where the Court uses other means to evaluate the reasonableness of a percentage fee. (Laffitte v. Robert Half Internat. Inc., supra, 1 Cal.5th at pp. 505-506.) Nonetheless, the Court finds a lodestar analysis helpful in evaluating the reasonableness of the award.2

Here, the requested percentage award is significantly higher than the 33.33% that is commonly requested in class action cases, and no support for the reasonableness of the requested amount is provided. Counsel does not provide any billing records, accounting or description of the work performed on the case other than a brief and conclusory paragraph in the motion stating that the fees were justified. (Mtn. p. 29, ll. 11-22.)

Counsel cites to two cases from this County from ten or more years ago, as well as one case from Los Angeles, one from Orange County, and one from the District of Columbia from 1981, which apparently awarded 40% or more of the common fund as fees. However, the motion provides no information on the cases other than the case numbers and makes no effort to establish they are similar to the case here or show the percentage requested in this case.

Counsel provides no means by which the Court can determine that an award of 40% of the common fund for attorney fees is an appropriate or reasonable award. Nor does counsel provide any evidence that his billing rate, which is over $700 per hour, is the reasonable hourly rate is that prevailing in the community for similar work. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1095.) In the Court’s experience, an award of 40% of the common fund is unusually high and the Court is hard pressed to justify awarding that much of the settlement to counsel.

Counsel declares that plaintiffs agreement to the percentage. (Deason Decl., ¶ 5.) However, “[t]he cases make clear that fee allocation in a common fund setting is not just a matter of private agreement between lawyers and their clients... it is equally apparent that courts awarding attorneys’ fees from a common fund recovery ensure that those fees are reasonable and don't unjustly enrich the attorneys at their clients’ expense.” (Lofton v. Wells Fargo Home Mortgage (2018) 27 Cal.App.5th 1001, 1017.)

2 Citing a federal decision, counsel contends that the percentage approach in setting the fee is preferable to the lodestar. (In re Activision Securities Litigation (N.D. Cal. 1989) 723 F.Supp. 1373, 1378.) However, even in that case, the court found that the rate should be set at 30%. (Ibid.)

The Court has no means by which to determine a reasonable fee award.

IV.

Conclusion

The Court continues the hearing on the motion to allow counsel to submit additional support for their fee request, and for plaintiffs to submit evidence that FEHA Settlement class members and Wage and Hour Settlement class members were provided with notice of the date and time of this final approval hearing.

Additionally, the Court notes that Joe Soto is named as a defendant, but no proof of service is on file, no answer is on file, and Soto does not appear to be a party to the settlement agreements. Plaintiffs shall come prepared to discuss whether they intend to dismiss him as a defendant.

Hearing will be continued to September 24, 2026, at 9:00 a.m. in Department 2. Plaintiffs shall serve notice.

5