Perez v. Rosenbalm Rockery, 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].) 3

There are approximately 137 class members ascertainable from defendant’s business and payroll records. (Simonian Decl., ¶¶ 3, 4.) Numerosity and ascertainability are adequately established.

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.”

For settlement approval purposes, plaintiffs submit evidence that the class members are subject to common practices and policies, and experienced the same alleged wage and hour violations, and that plaintiffs have claims typical of the class. (See Simonian Decl., ¶ 5; Perez Decl., ¶¶ 4-5; Torres Decl., ¶¶ 4-5.)

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 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 4

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.)

Here, informal discovery and production of time and pay records occurred, which were analyzed by an expert, providing the basis for counsel’s estimations of defendant’s maximum potential exposure. Counsel provides an adequate discussion of the weaknesses and risks involved in taking the case through trial, sufficient to conclude that the proposed settlement is fair and reasonable.

The court can preliminarily approve the requested award of attorney’s fees and costs. Plaintiffs’ counsel seek $141,667 in attorney fees, which is 1/3 of the total gross settlement, plus costs of up to $40,000. 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 preliminary information showing that their lodestar at this point totals $99,855. The court finds the billing rates to be reasonable. With the final approval motion counsel will need to produce detailed billing records. While the court may award a lesser amount of fees on final approval, the information submitted is sufficient to preliminarily approve the requested fee award. The court will approve payment of only the actual costs incurred, which must also be documented.

In accordance with the order denying the last motion for preliminary approval, plaintiffs seek incentive awards of $4,000 each. The court finds this to be reasonable and appropriate based on the plaintiffs’ services to the class.

The court also approves the $6,500 requested to compensate class administrator Apex Class Action LLC.

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 5/18/26. (Judge’s initials) (Date)

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