Jacopetti v. Kaleka

c. Community of Interest 4

“[T]he ‘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.’” (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021, internal citations omitted.) “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.) "[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.)

Here, it does appear that there are common questions of law and fact, as all of the proposed class members worked for the same defendant and allegedly suffered the same type of Labor Code violations. Therefore, the proposed class involves common issues of law and fact.

With regard to the requirement of typicality of the class representative’s claims, the named plaintiff, Mr. Jacopetti, has not stated in his declaration that he did the same type of work as the other class members, or that he was subjected to the same violations as the other class members. His declaration says nothing about the work he did or whether he was subject to similar wage and hour violations as the rest of the class. His complaint and FAC are also not verified, so even though they allege that Jacopetti was subjected to various wage and hour violations, they are not sufficient evidence to support a finding that he is an adequate class representative.

In addition, Mr. Jacopetti does not state in his declaration whether he has any conflicts of interest that might prevent him from being an adequate class representative. He does describe the work he did on the case, but he never states that he has no conflicts with the rest of the class members that might interfere with his ability to represent their interests. This omission is especially problematic here, since plaintiff’s counsel previously filed a motion to amend the complaint in October of 2025 and remove Mr. Jacopetti as class representative due to an unspecified conflict of interest. (See Motion to Remove Joshua Jacopetti as Class Representative filed on October 16, 2025.)

It is unclear why plaintiff’s counsel sought to have Mr. Jacopetti removed as class representative, as counsel did not state the facts underlying their request due to attorneyclient privilege. Plaintiff’s counsel later withdrew the motion to substitute Mr. Jacopetti, so it was not heard or granted by the court. It is troubling that counsel apparently believed that Mr. Jacopetti was not capable of representing the interests of the class in October of 2025, but now, less than a year later, counsel is seeking to have him confirmed as the class representative and given a $10,000 incentive award for his work on the case.

At the very least, Mr. Jacopetti needs to state in his declaration that he has no conflicts of interest that would prevent him from representing the interests of the other class members. Counsel should also explain in their declaration, without violating attorney-client privilege, why they previously believed that Jacopetti had a conflict of interest and why they now believe that he is qualified to represent the class despite their previous concerns. Otherwise, the court cannot approve the settlement, as it is not clear whether Mr. Jacopetti is qualified to act as the class representative. 5

On the other hand, plaintiffs’ counsel have submitted declarations that establish that they are experienced and qualified to represent the class. Counsel’s declarations discusses their background, education, and experience in class action litigation. Therefore, counsel have provided sufficient evidence to support their assertion that they are experienced and qualified to represent plaintiffs and the other class members here.

d. Superiority of Class Certification

It does appear that certifying the class would be superior to any other available means of resolving the disputes between the parties. Absent class certification, each employee of defendant would have to litigate their claims individually, which would result in wasted time and resources relitigating the same issues and presenting the same testimony and evidence. Class certification will allow the employees’ claims to be resolved in a relatively efficient and fair manner. (Sav-On Drugs Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 340.) Therefore, plaintiffs have shown that class certification is the superior means of resolving her claims.

Conclusion: The court will not grant certification of the class for the purpose of settlement at this time, due to the uncertainty regarding whether Mr. Jacopetti is qualified to represent the class.

2. Settlement

a. Legal Standards

“[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.) The court must be leery of a situation where “there was nothing before the court to establish the sufficiency of class counsel's investigation other than their assurance that they had seen what they needed to see.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129.)

b. Fairness and Reasonableness of the Settlement

“In determining whether a class settlement is fair, adequate and reasonable, the trial 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.’ The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v.

Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 244–245, internal citations omitted, disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)

Here, plaintiffs’ counsel has not presented a sufficient discussion of the strength of the case if it went to trial, the risks, complexity, and duration of further litigation, and an explanation of why the settlement is fair and reasonable in light of the risks of taking the case to trial.

Counsel states that, while plaintiff has a strong case, there were substantial barriers to recovery, including defendants’ contention that the claims were without merit and were not suitable for class certification, that plaintiff would lose at trial, or that defendant would appeal even if plaintiff did win. Defendant also represented that it would be unable to pay the amount plaintiff sought due to its financial circumstances. Plaintiff had a forensic accountant confirm that defendant’s financial situation did not allow it to pay the full amount plaintiff sought. Thus, plaintiff contends that the settlement is fair, reasonable, and adequate under the circumstances.

However, plaintiff’s counsel has not provided an estimate of the defendant’s maximum potential liability or what each of the claims was likely to be worth if plaintiff prevailed at trial, so it is impossible for the court to assess whether the amount of the settlement is reasonable in relation to the amount of defendant’s potential liability. Plaintiff’s counsel seems to have simply decided that, in light of defendant’s financial situation, it was reasonable to accept $550,000 to settle the case. Yet without further information about what the claims were potentially worth, the court cannot find that the settlement is fair, adequate, and reasonable.

Also, plaintiff’s counsel has not provided any discussion of why it was reasonable to settle the PAGA claim, or even how much of the settlement will be allocated to the PAGA claim. (The Settlement states that $20,000 will be allocated to the PAGA claims, but this information is not provided in counsel’s declaration.) Without some discussion of the potential value of the PAGA claim and how much of the settlement will be used to pay the PAGA claim, the court cannot make a reasoned determination that the settlement of the PAGA claim is fair, adequate, and reasonable.

In addition, counsel does not state whether they gave notice of the settlement to the LWDA, as required by the PAGA statute. Therefore, plaintiffs have not shown that the settlement is fair, reasonable, or adequate in light of the unique facts and legal issues raised by the plaintiffs’ case, and the court will not grant preliminary approval of the settlement at this time.

c. Proposed Class Notice

The proposed notice appears to be adequate. The notice will provide the class members with information regarding their time to opt out or object, the nature and amount of the settlement, the impact on class members if they do not opt out, the amount of attorney’s fees and costs, and the service award to the named class representative. As a result, the court intends to find that the proposed class notice is adequate.

3. Attorney’s Fees and Costs

Plaintiffs’ counsel seeks attorney’s fees of $183,333.33, which is one-third of the gross settlement. Plaintiffs’ attorneys have provided their declarations, which describe their education, skill, and experience. However, counsel has not provided any evidence regarding the time they spent on the case, or what their hourly rates are. Therefore, plaintiffs’ counsel has not provided any information that would allow the court to conduct a lodestar analysis of the requested fees to determine whether they are reasonable in light of the work done on the case. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 504 [holding that trial court may award fees based on a percentage of the common fund in class actions, but it may also conduct a lodestar cross-check of 7

the request for attorney’s fees in order to confirm the fees are reasonable].) As a result, the court intends to find that plaintiffs’ counsel has not adequately supported the request for $183,333.33 in fees.

In addition, counsel also seeks an award of costs. The amount of costs is not specified in the motion, but, according to the settlement agreement, it appears that counsel seeks up to $20,000 in costs. (Exhibit A to York decl.) Again, however, counsel has not provided a summary of its actual costs incurred so far in the case, so it is impossible to determine that the request for up to $20,000 is reasonable here. Most of the costs in the case were apparently incurred by plaintiff’s prior counsel, who died about three years ago.

Indeed, plaintiff’s new counsel admits that they have not yet obtained cost records from plaintiff’s prior attorney, and that they are only guessing about the amount of costs incurred by him before he died and the new firm took over the case. (Farris decl., ¶ 6.) The court will not approve the request for $20,000 in costs without some documentation of the costs incurred, or at least a more specific declaration from counsel that it is not based on speculation alone.

4. Payment to Class Representative

Plaintiff seeks preliminary approval of a $10,000 service award to the named plaintiff, Mr. Jacopetti. Mr. Jacopetti has provided a declaration that supports the request for a service award, as he states that he worked closely with plaintiffs’ counsel, provided documents, answered questions, and participated in meetings about the case with counsel. Thus, he has shown that he did substantial work on the case, which could potentially support an award of $10,000.

However, as discussed above, Mr. Jacopetti has not stated that he has no conflicts of interest that might disqualify him from representing the class. His own attorneys previously filed a motion to have him removed from representing the class, citing an unspecified conflict of interest that allegedly disqualified him. While that motion was withdrawn without being ruled upon, plaintiff and his attorneys still need to show that Mr. Jacopetti does not have any conflicts that might disqualify him before the court can approve an incentive award for his work on the case. Therefore, the court will not grant preliminary approval of the incentive award to the named plaintiff at this time.

5. Payment to Class Administrator

In the motion for approval, plaintiff’s counsel does not state who the class administrator will be or how much they will be paid to administer the class. However, the settlement agreement states that the class administrator will be ILYM Group. (Agreement, ¶ 1.2.) Later in the agreement, however, the parties state that they will meet and confer on the selection of a settlement administrator. (Id. at ¶ 8.1.) Thus, it is somewhat ambiguous whether ILYM is the settlement administrator or not. Also, neither the motion for approval nor the settlement agreement state how much the administrator will be paid to administer the settlement. Therefore, the court will not approve the settlement until plaintiff states who will administer the settlement and how much of the settlement will be allocated to pay the administrator.

6. PAGA Settlement

The motion for preliminary approval does not state how much of the settlement will be allocated to the PAGA claims. However, in the settlement agreement, the parties 8

state that $20,000 of the settlement will be allocated to the PAGA claims, with 75% of that amount being paid to the LWDA as required by law and the other 25% being paid out to the aggrieved employees. Plaintiff’s counsel does not discuss the reasons why they chose to settle the PAGA claims for $20,000, or what the claims were potentially worth. Without more discussion of the value of the PAGA claims and why counsel accepted $20,000 to settle them, the court will not grant preliminary approval of the settlement of the PAGA claims.

In addition, plaintiff’s counsel has not stated whether she gave notice of the settlement to the LWDA before filing the motion for preliminary approval. Therefore, plaintiffs’ counsel has not shown that she complied with PAGA’s requirement to give notice of the settlement to the LWDA. (See Labor Code, § 2699, subd. (s)(2).) As a result, the court intends to deny preliminary approval of the PAGA portion of the settlement without prejudice.

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 8-12-26. (Judge’s initials) (Date)

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