Diana Rodriguez vs Visiting Nurse & Hospice Care et al

Case Number

22CV05104

Case Type

Hearing Date / Time

Fri, 02/06/2026 - 10:00

Nature of Proceedings

Motion: Approval

Tentative Ruling

For the reasons set forth herein, the motion of plaintiff for preliminary approval of class action and “PAGA” settlement is continued to March 6, 2026. Plaintiff shall, on or before February 20, 2026, file and serve an appropriate supplemental brief or declaration that cures or explains the deficiencies described herein.

Background:

On December 21, 2022, plaintiff Diana Rodriguez filed a class action complaint against defendants Visiting Nurse & Hospice Care (VNH), Visiting Nurse & Hospice Care of Santa Barbara (VNHSB), VNA Health, and Personal Care Services (Personal Care) (collectively, Defendants), alleging ten causes of action: (1) violation of Labor Code sections 510 and 1198; (2) violation of Labor Code sections 226.7 and 512, subdivision (a); (3) violation of Labor Code section 226.7; (4) violation of Labor Code sections 1194, 1197, and 1197.1; (5) violation of Labor Code sections 201 and 202; (6) violation of Labor Code section 204; (7) violation of Labor Code section 226, subdivision (a); (8) violation of Labor Code section 1174, subdivision (d); (9) violation of Labor Code sections 2800 and 2802; and (10) violation of Business and Professions Code section 17200, et seq. As alleged in the complaint:

Defendants employed plaintiff as an hourly, non-exempt employee in California from April 2018 to June 2020. (Compl., ¶¶ 20-22.) During plaintiff’s employment with Defendants, plaintiff worked over eight hours in a day or forty hours in a week. (Compl., ¶ 27.) Defendants failed to pay minimum and overtime wages to plaintiff, and failed to provide plaintiff with uninterrupted rest and meal periods; required plaintiff to remain on Defendants’ premises during rest periods; rounded the work time recorded by plaintiff; failed to pay plaintiff wages owed upon discharge or resignation; failed to provide complete or accurate wage statements or to keep complete and accurate payroll records; and failed to reimburse plaintiff for necessary business-related expenses. (Compl., ¶¶ 30, 32, 35, 42-47 & 49-51.)

The complaint is brought on behalf of plaintiff, all current and former hourly-paid or non-exempt employees who worked for any of the Defendants within California at any time from four years preceding the filing of the complaint, and two subclasses of individuals who were subject to Defendants’ alleged practice of rounding time or were required to stay on Defendants’ premises for rest breaks. (Compl., ¶¶ 15-16.)

On February 22, 2023, VNHSB, doing business as VNH and VNA Health (from this point, Defendant), filed an answer to the complaint, generally denying its allegations and asserting thirty-five affirmative defenses.

On October 7, 2024, plaintiff filed a notice of conditional settlement of the entire case.

On January 27, 2025, the court signed and entered an order on the parties’ stipulation, granting plaintiff leave to file a first amended complaint.

On February 6, plaintiff filed a first amended class action complaint (the FACC) which adds an eleventh cause of action for violation of Labor Code section 2698 et seq. (the Labor Code Private Attorneys General Act of 2004 or PAGA). The FACC defines the proposed class as all current and former hourly-paid or non-exempt employees who worked for any of the Defendants within California at any time during the period from December 18, 2018; alleges that on September 6, 2023, plaintiff provided written notice to the Labor & Workforce Development Agency (the LWDA) of the provisions of PAGA alleged to have been violated in this action; and that plaintiff has not received response from the LWDA. (FACC, ¶¶ 16 & 25.) The allegations of the FACC are otherwise the same or similar as those appearing in the complaint.

On September 11, plaintiff filed a motion for an order: granting preliminary approval of a proposed class action settlement described in a “Class Action and PAGA Settlement and Release Agreement” (the Settlement Agreement); certifying a proposed class for settlement purposes; appointing plaintiff as the “Class Representative”; appointing attorneys Arby Aiwazian, Joanna Ghosh, and Tara Zabehi of Lawyers for Justice, PC, as “Class Counsel”; approving a proposed “Notice of Class Action Settlement” (the Class Notice), a copy of which is attached to the proposed order submitted with the motion; directing the mailing of the Class Notice in accordance with the Settlement Agreement; approving Simpluris Inc. (Simpluris), as the “Settlement Administrator”; and scheduling a final approval hearing.

A copy of the Settlement Agreement is attached to the declaration of plaintiff’s counsel, Tara Zabehi (attorney Zabehi), submitted in support of the motion. (Zabehi Dec., ¶ 6 & Exh. 2.) That agreement was signed by plaintiff on April 16, 2025, and ostensibly by Defendant on April 25, 2025. (Zabehi Dec., Exh. 2 at pdf p. 53.)

Pursuant to the terms of the Settlement Agreement, Defendant will pay, as a non-reversionary gross settlement amount or “GSA”, the amount of $699,999 in consideration for the releases described in the Settlement Agreement and below, and will separately pay all employer payroll taxes. (Zabehi Dec., Exh. 2, ¶ 4.1.) Defendant will transmit the GSA to Simpluris (at times, the Administrator), who the parties agree will administer the settlement, no later than fifteen calendar days after the “Effective Date” as that term is defined in the Settlement Agreement. (Zabehi Dec., Exh. 2, ¶¶ 1.2, 1.18 [definition of “Effective Date”], 4.1 & 5.2.)

Subject to the court’s approval, Simpluris will deduct and pay the following amounts from the GSA: (1) a “Class Representative Service Payment” to plaintiff in the amount of $7,500; (2) attorney’s fees to Class Counsel not to exceed $279,999.60, or 40 percent of the GSA (the Class Counsel Fees Payment); (3) costs and expenses incurred by Class Counsel not to exceed $15,000 (the Class Counsel Litigation Costs Payment); (4) charges and expenses of Simpluris incurred to administer the settlement and not to exceed $8,000 (the Administration Costs); and (5) a payment in the amount of $15,000 for civil penalties under PAGA (the PAGA Payment or PAGA Penalties). (Zabehi Dec., Exh. 2, ¶¶ 1.3, 1.5-1.7, 1.13-1.14, 1.21, 1.35, 4.2, 4.2.1-4.2.3, 4.2.4.5.)

The PAGA Penalties will be allocated as follows: (1) the amount of $11,250 or 75 percent will be paid to the LWDA under Labor Code section 2699, subdivision (i) (the LWDA PAGA Payment); and (2) the amount of $3,750 or 25 percent of that payment will be paid to the “Aggrieved Employees”, who include all current and former non-exempt, hourly employees of Defendant who worked in California from September 6, 2022, through the date of preliminary approval of the Settlement Agreement (the PAGA Period). (Zabehi Dec., Exh. 2, ¶¶ 1.4, 1.26-1.27, 1.32, 4.2.4.5.)

The Aggrieved Employees will each receive a pro rata share of 25 percent of the PAGA Penalties (the Individual PAGA Payment), which Simpluris will calculate by dividing the Aggrieved Employees’ 25 percent share by the total number of pay periods during which the Aggrieved Employees worked for Defendant for at least one day (the PAGA Pay Period), and multiplying that result by each Aggrieved Employee’s individual PAGA Pay Period. (Zabehi Dec., Exh. 2, ¶¶ 1.24, 1.31-1.32, 4.2.4.5, 4.2.4.5.1.) The Aggrieved Employees will be responsible to pay any taxes owed on their Individual PAGA Payment. (Zabehi Dec., Exh. 2, ¶ 4.2.4.5.1.)

The ”Class Members” or “Class” include all current and former non-exempt, hourly employees of Defendant who worked in California from December 21, 2018, through the date of preliminary approval (the Class Period). (Zabehi Dec., Exh. 2, ¶¶ 1.9 & 1.12.) To the extent the allocations and payments described above are approved by the court, the remaining amount that will be available for distribution to the Class (the net settlement amount or “NSA”) totals $374,499. (See (Zabehi Dec., ¶ 7 & Exh. 2, ¶ 1.28.) If the court approves any of the payments from the GSA described above in a lesser amount, the Administrator will retain and allocate any remainder to the NSA. (Zabehi Dec., Exh. 2, ¶¶ 4.2.1-4.2.3, 4.2.4.5.2.)

If the Settlement Agreement is preliminarily approved, the Administrator will divide the NSA by the total “Workweeks” worked by all Class Members, defined as any week in which a Class Member worked one calendar day for Defendant during the Class Period, exclusive of weeks that Class Member was out of work, to yield an “Estimated Workweek Value,” and will multiply each Class Member’s individual Workweeks by that value to determine that member’s estimated “Individual Settlement Share”, including that employee’s share of taxes and withholdings in regard to the “Wage Portion” described below. (Zabehi Dec., Exh. 2, ¶¶ 1.23, 1.45, 4.2.4.1.)

After final approval, the Administrator will divide the final NSA by the Workweeks of all Class Members who do not submit a valid and timely request to be excluded from the settlement (the Participating Class Members or, individually, Member) to yield a “Final Workweek Value”, and will multiply each Participating Class Member’s individual Workweeks by the Final Workweek Value to determine that member’s Individual Settlement Share. (Zabehi Dec., Exh. 2, ¶¶ 1.36, 1.43, 4.2.4.2.)

Fifteen percent of each Participating Class Member’s Individual Settlement Share will be allocated to the settlement of wage claims (the “Wage Portion”), and will be subject to tax withholding. (Zabehi Dec., Exh. 2, ¶ 4.2.4.3.) The remaining eighty-five percent of the Individual Settlement Share (the Individual Class Payment) will be allocated to the settlement of claims for disputed penalties, interest, and non-wage damages which are not subject to wage withholdings. (Zabehi Dec., Exh. 2, ¶¶ 1.22, 4.2.4.3.) The Administrator will withhold each employee’s share of taxes and withholdings with respect to the Wage Portion of that employee’s Individual Settlement Share, and issue checks to Participating Class Members representing the Individual Class Payment (i.e., the Individual Settlement Share net of taxes and withholdings). (Zabehi Dec., Exh. 2, ¶ 4.2.4.3.) Defendant’s share of taxes and contributions on the Wage Portion of Individual Settlement Shares will be paid separately and in addition to the GSA. (Ibid.)

Class Members who opt out of the settlement by sending a valid and timely request to be excluded (the Non-Participating Class Members) will not receive an Individual Class Payment, and the amounts equal to their Individual Settlement Shares will be retained in the NSA for distribution to Participating Class Members on a pro rata basis. (Zabehi Dec., Exh. 2, ¶¶ 1.29 & 4.2.4.4.)

Defendant will, no later than twenty calendar days after the court grants preliminary approval, deliver to the Administrator each Class Member’s name, last-known mailing address, social security number, and number of Workweeks and PAGA Pay Periods (the Class Data), which the Administrator will maintain in confidence and use only for purposes of the settlement. (Zabehi Dec., Exh. 2, ¶¶ 1.8 & 5.1.) The Settlement Agreement imposes on Defendant a continuing duty to immediately notify Class Counsel if it discovers that the Class Data omits any Class Member identifying information, and to provide corrected or updated Class Data as soon as reasonably feasible. (Zabehi Dec., Exh. 2, ¶ 5.1.)

Within fourteen days after Defendant funds the GSA, the Administrator will mail checks for all Individual Class Payments, Individual PAGA Payments, the LWDA PAGA Payment, the Administration Costs, the Class Counsel Fees Payment, the Class Counsel Litigation Costs Payment, and the Class Representative Service Payment. (Zabehi Dec., Exh. 2, ¶ 5.3.) Checks for Individual Class Payments and Individual PAGA Payments will be sent by first class mail and will prominently state the date each check will be voided, which will not be less than 180 days after the date of mailing. (Zabehi Dec., Exh. 2, ¶ 5.3.1.) Before mailing any checks, the Administrator must update each check recipient’s mailing address using the National Change of Address Database. (Ibid.) All checks not cashed within 180 calendar days will be canceled. (Ibid.)

If a Participating Class Member’s check is returned as undelivered with a forwarding address provided, the Administrator must re-mail that check within 7 days of receipt by the Administrator. (Zabehi Dec., Exh. 2, ¶ 5.3.2.) If a check is returned as undelivered without a forwarding address, the Administrator must use all reasonably available sources including the National Change of Address database, skip traces, or direct contact with the Class Member, to investigate and search for a current mailing address and, within 7 days, re-mail that check to any address ascertained through the Administrator’s search. (Zabehi Dec., Exh. 2, ¶¶ 1.10 & 5.3.2.)

All funds represented by uncashed or cancelled checks will be transmitted by the Administrator to the California Controller’s Unclaimed Property Fund in the name of the Class Member, leaving no “unpaid residue” subject to the requirements of California Code of Civil Procedure Section 384, subdivision (b). (Zabehi Dec., Exh. 2, ¶ 5.3.3.)

The ”Released Parties” include Defendant, and its former and present “directors, officers, shareholders, partners, principals, consultants, related entities, parents, subsidiaries, managers, owners, members, employees, contractors, fiduciaries, beneficiaries, agents, affiliates, representatives, heirs, executors, attorneys, accountants, payroll companies, insurers, predecessors, successors, and assigns.” (Zabehi Dec., Exh. 2, ¶ 1.42.) Plaintiff’s release includes a waiver of rights under Civil Code section 1542. (Zabehi Dec., Exh. 2, ¶ 6.1.1.)

The Settlement Agreement requires the Participating Class Members to release Defendant and the Released Parties from: “all claims, causes of action, rights, demands, penalties, costs, and attorneys’ fees arising during the Class Period under state, federal, or local law that were alleged, or reasonably could have been alleged, based on the facts stated in the Operative Complaint and/or ascertained in the course of the Action...” (the Class Released Claims). (Zabehi Dec., Exh. 2, ¶ 6.2.) The Class Released Claims include “any and all statutory, constitutional, contractual, and/or common law claims for wages, reimbursements, damages, penalties, restitution, liquidated damages, interest, attorneys’ fees, or litigation costs, including but not limited to claims arising under California Labor Code sections 201, 202, 203, 204, 218, 226, 226.7, 510, 512, 1174, 1174.5, 1194, 1194.2, 1197, 1197.1, 1198, 2800, and 2802, California Business and Professions Code section 17200, et seq., any IWC Wage Orders...” and any and all claims involving any alleged “(1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide compliant meal periods and associated premiums; (4) failure to provide compliant paid rest periods and associated premiums; (5) failure to timely pay wages upon termination; (6) failure to timely pay wages during employment; (7) failure to provide compliant wage statements; (8) failure to keep requisite payroll records; (9) failure to reimburse necessary business expenses; and (10) violation of California’s unfair competition law based on the aforementioned claims.” (Ibid.)

Excluded from the release by the Participating Class Members described above are “any other claims, including claims for vested benefits, wrongful termination, violation of the Fair Employment and Housing Act, unemployment insurance, disability, social security, workers’ compensation, or claims based on facts occurring outside the Class Period.” (Zabehi Dec., Exh. 2, ¶ 6.2.)

The Settlement Agreement also provides that the Aggrieved Employees and the State of California release the Released Parties from “all claims for civil penalties under PAGA arising during the PAGA Period that were alleged, or reasonably could have been alleged, based on the facts stated in the Operative Complaint, the PAGA Notice, and/or ascertained in the course of the Action....” (Zabehi Dec., Exh. 2, ¶ 6.3.) The PAGA Released Claims include claims for PAGA penalties arising under the same statutes and claims described above. (Ibid.)

The Settlement Agreement requires the Administrator to, no later than fourteen days after receiving the Class Data, mail the Class Notice in the form attached to that agreement. (Zabehi Dec., Exh. 2, ¶ 8.3.2.) Any Class Notice that is returned as undelivered with a forwarding address must be remailed by the Administrator no later than 3 days after receipt. (Zabehi Dec., Exh. 2, ¶ 8.3.3.) If a Class Notice is returned as undelivered without a forwarding address, the Administrator must conduct the same investigation and search described above in regard to the mailing of checks to Participating Class Members, and remail the Class Notice to the Class Member’s most current address. (Ibid.) All response deadlines will be extended an additional fourteen days for Class Members whose Class Notice is re-mailed. (Zabehi Dec., Exh. 2, ¶ 8.3.4.)

Class Members may opt-out of the Settlement by emailing and mailing to the Administrator, a signed letter or “Request for Exclusion” that clearly communicates that member’s election to be excluded from the Settlement Agreement and which must include that Class Member’s full name, address and telephone number, and the last four digits of his or her social security number. (Zabehi Dec., Exh. 2, ¶¶ 1.43-1.44, 8.4.1.) A Request for Exclusion must be emailed or postmarked by the “Response Deadline”, which is defined to mean forty-five calendar days after the initial mailing by the Administrator of the Class Notice, plus an additional fourteen calendar days for Class Members to whom Class Notices are resent. (Ibid.) Every Class Member who does not submit a timely and valid Request for Exclusion will be deemed to be a Participating Class Member under the Settlement Agreement. (Zabehi Dec., Exh. 2, ¶ 8.4.3.)

Each Class Member shall also have forty-five calendar days after the initial mailing of the Class Notice, plus an additional fourteen days as further described above if a Class Notice is re-mailed, to submit any written dispute concerning the number of Workweeks and PAGA Pay Periods allocated by the Administrator to that Class Member. (Zabehi Dec., Exh. 2, ¶ 8.5.)

The Settlement Agreement also sets forth the procedure by which Class Members may object to the settlement, including by appearing in court. (Zabehi Dec., Exh. 2, ¶ 8.6.)

Attorney Zabehi states that, based on data provided by Defendant, the Class is estimated to include 548 individuals who worked an estimated total of 67,328 workweeks between December 21, 2018, and August 31, 2025, for an average hourly pay of $35. (Zabehi Dec., ¶¶ 13 & 30.) Based on Class Counsel’s investigation and discovery, Zabehi states that there exists sufficient evidence to support the allegations made in these proceedings, and to show that Class Members were expected to perform similar job duties and subject to uniform operations, employment policies, practices, and procedures in regard to the payment of compensation, among other things. (Zabehi Dec., ¶ 14.)

According to attorney Zabehi, the parties participated in extensive settlement negotiations and a full-day mediation conducted by attorney Henry Bongiovi who Zabehi describes as a well-respected mediator experienced in mediating complex labor and employment matters. (Zabehi Dec., ¶ 23.) The parties exchanged information and engaged in discussions regarding their respective evaluations of the case; the risks and delays of further litigation; the law relating to off-the-clock theory, regular rate, rounding, meal and rest periods, and state wage-and-hour law and enforcement; the evidence produced by the parties; and the possibility of appeals, among other things. (Ibid.)

Zabehi asserts that the parties’ settlement discussions and negotiations were adversarial and conducted at arm’s length. (Zabehi Dec., ¶ 23.) Defendant and its counsel felt strongly about Defendant’s ability to prevail on the merits, while plaintiff and Class Counsel believed that they would prevail at trial. (Ibid.) After conducting investigations, formal and informal discovery, exchange of information, extensive settlement negotiations, and with the aid of the mediator’s evaluation, the parties agreed that this matter is well-suited for settlement given the legal issues relating to plaintiff’s principal claims, as well as the costs and risks to both sides that would result from further litigation. (Ibid.) For these reasons, Zabehi asserts, the settlement is a fair, reasonable, and adequate resolution of the released claims. (Ibid.)

According to Zabehi, Class Counsel investigated the veracity, strength, and scope of the claims prior to reaching the proposed settlement, and plaintiff conducted investigation and formal and informal discovery regarding the facts of the case, which included the exchange, review, and analysis of thousands of pages of documents and data obtained from various sources. (Zabehi Dec., ¶ 24.) The data and documents reviewed or analyzed by Class Counsel included plaintiff’s employment records, a detailed sampling of Class Member time data and pay records, Defendant’s Employee Handbook, internal memoranda, new hire orientation checklists, job descriptions, an Employee Handbook Acknowledgment and Acknowledgment of Receipt of Policies, Applications for Employment, Employee Change of Status forms, New Employee Handout forms, and an At-Will Employment Agreement and Non-Harassment Policy, among other information and documents. (Ibid.) Class Counsel also interviewed plaintiff to gather facts and identify potential witnesses. (Ibid.)

Though Class Counsel is aware of Defendant’s position and defenses, believes that plaintiff could obtain class certification despite many obstacles, Class Counsel accounted for the uncertainty and risk of the outcome of further litigation, the difficulties and delays inherent in such litigation, and the burdens of proof necessary to establish liability for the claims asserted in the lawsuit, Defendant’s defenses, and the difficulties in establishing entitlement to monetary recovery. (Zabehi Dec., ¶ 26.)

For example, attorney Zabehi states that Defendant denies liability and wrongdoing of any kind associated with the claims alleged in the lawsuit, and whether this lawsuit is appropriate for class treatment for any purpose other than the settlement at issue. (Zabehi Dec., ¶ 27.) Attorney Zabehi further states that the parties interviewed witnesses and reviewed documents and information relating to the Class Members’ employment with Defendant, and Defendant’s operations and employment policies, practices, and procedures. (Ibid.)  The available information enabled Class Counsel to assess and value the claims and prepare violation, damages, and analyses models. (Ibid.) Attorney Zabehi asserts that the settlement takes into account the strengths and weaknesses of each side’s position and the uncertainties in regard to how the case might have concluded at trial or on appeal. (Ibid.)

Before reaching the settlement described in the Settlement Agreement, plaintiff calculated the potential and realistic values of the claims asserted in this action. (Zabehi Dec., ¶ 33.) To prepare those calculations, Class Counsel considered the information, data, and documents obtained from plaintiff, Defendant, and other sources; created violation, damages, and penalties valuations and models; and assumed an exposure based on plaintiff achieving class certification and proving all elements of the claims and damages asserted in this action. (Ibid.)

Attorney Zabehi states that the potential value of plaintiff’s claim for failure to pay overtime wages is $3,534,710.55 (calculated as 67,328 workweeks x 1 hours of unpaid overtime wages x overtime hourly rate of $52.50 based on an average hourly rate of $35). (Zabehi Dec., ¶ 33(a).) After applying a discount of 65 percent to account for the risks associated with obtaining and maintaining class certification; a discount of 70 percent to account for the risks associated with succeeding on the merits and establishing liability; and a discount of 85 percent to account for the risks associated with proving the extent of damages and obtaining an award thereof, attorney Zabehi asserts that the value of that claim is closer to $55,671.69. (Ibid.)

The potential value of plaintiff’s claim for failure to pay minimum wages is $2,356,473.70 (67,328 workweeks x 1 hour of unpaid minimum wages x average hourly rate of $35). (Zabehi Dec., ¶ 33(b).) After applying the same discount values described above, attorney Zabehi asserts that the value of that claim is closer to $37,114.46. (Ibid.)

The potential value of plaintiff’s claim for failure to provide compliant meal periods is $4,712,947.40 (67,328 workweeks x 2 meal period premium x average hourly rate of $35). (Zabehi Dec., ¶ 33(c).) After applying a discount of 60 percent to account for the risks associated with obtaining and maintaining class certification; a discount of 65 percent to account for the risks associated with succeeding on the merits and establishing liability; and a discount of 85 percent to account for the risks associated with proving the extent of damages and obtaining an award, the value of that claim is closer to $98,971.90. (Ibid.)

The potential value of plaintiff’s claim for failure to provide compliant rest periods is $4,712,947.40 (67,328 workweeks x 2 rest period premiums x average hourly rate of $35). (Zabehi Dec., ¶ 33(d).) After applying a discounts of 60, 70, and 80 percent to account for, respectively, the risks associated with obtaining and maintaining class certification, the risks associated with succeeding on the merits and establishing liability, and the risks associated with proving the extent of damages and obtaining an award, attorney Zabehi contends that the value of that claim is closer to $113,110.74. (Ibid.)

Attorney Zabehi further states that, based on data provided by Defendant, approximately 265 Class Members were terminated since December 21, 2019. (Zabehi Dec., ¶ 33(f).) Assuming that these individuals were not timely paid all wages due upon termination, the potential value of waiting time penalties total $2,226,000, or approximately $8,400 per individual (calculated as 265 individuals x [30 days x hourly rate of $35 x 8 hours]). (Ibid.) After applying discounts to account for the same risks described above, the value of the claim for waiting time penalties is closer to $35,059.50. (Ibid.)

Class Counsel calculated the potential value of plaintiff’s claim for failure to provide compliant wage statements was calculated to be $1,893,172.88 ([474 initial violations x $50 statutory penalty] + [18,695 subsequent violations x $100 statutory penalty]). (Zabehi Dec., ¶ 33(g).) After applying discounts to account for the risks discussed above, the value of that claim is closer to $34,787.05. (Ibid.)

The potential value of the claim for failure to reimburse necessary business expenses was estimated to be $134,655.64 (67,328 workweeks x $2.00 unreimbursed business expenses). (Zabehi Dec., ¶ 33(i).) After applying the same or similar discounts to account for the risks described above, the value of that claim is closer to $1,262.40. (Ibid.)

The PAGA Penalties were estimated by Class Counsel to total approximately $745,986.77 (calculated as 383 aggrieved employees x $1,950 in civil penalties). (Zabehi Dec., ¶ 33(j).) Attorney Zabehi asserts that, pursuant to Labor Code section 2699, subdivision (e)(2), the court can assess those penalties or reduce them based on the facts and circumstances of the case, to avoid an award that is unjust, arbitrary, oppressive, or confiscatory. (Ibid.) Attorney Zabehi states that, after applying discounts to account for the risks associated with PAGA manageability and with succeeding on the merits, and considering that the court has discretion to reduce civil penalties, the value of the PAGA Penalties is closer to $13,987.25. (Ibid.)

Information appearing in the Zabehi declaration shows that the potential total value of this case is $19,570,907.57 based on the values described above. (Zabehi Dec., ¶ 33(k).) After applying discounts for the risks further discussed above, attorney Zabehi states that the total potential value of this action is closer to $375,977.73. (Ibid.) Attorney Zabehi asserts that, after considering the analysis set forth above, Class Counsel believes the settlement is fair, reasonable, adequate, and in the best interest of plaintiff, the Class, and the State of California. (Zabehi Dec., ¶¶ 34-35.)

Attorney Zabehi also includes in their declaration, a detailed description of the experience and qualifications of Class Counsel. (Zabehi Dec., ¶¶ 16-21.)

Plaintiff states that they decided to seek legal advice about their work experiences with Defendant and pursuing their grievances, and contacted Class Counsel. (Rodriguez Dec.,¶ 2.) Plaintiff asserts that they wanted to do whatever they could to make sure Defendant was held accountable for not properly compensating their employees for all hours worked, non-compliant meal and rest breaks, and failure to reimburse expenses. (Ibid.) Plaintiff consulted with Class Counsel, discussed plaintiff’s situation, complex wage-and-hour class actions in general, and what it meant to be a named plaintiff, class representative, and PAGA representative. (Ibid.) Before commencing this case, plaintiff was informed of and came to understand the duties and responsibilities of a plaintiff, including if class certification were to be obtained and plaintiff were appointed as a representative of the class. (Ibid.)

Plaintiff describes the time and efforts they expended in this case to assist Class Counsel and to fulfill their responsibilities as a class representative and PAGA representative, which included gathering and reviewing documents concerning plaintiff’s employment with Defendant, answering counsel’s questions, providing guidance regarding the duties of other hourly paid non-exempt employees, identifying potential witnesses, and developing a strategy as to what documents and information to obtain from Defendant, among other things. (Rodriguez Dec., ¶¶ 3-4.) Plaintiff routinely checked in with their attorneys and staff to make sure that they had all of plaintiff’s most current information and any additional information obtained by plaintiff. (Ibid.)

Plaintiff also reviewed the Settlement Agreement and discussed any questions with their attorneys before signing that agreement. (Rodriguez Dec., ¶ 5.) Plaintiff describes, and states that they understand, their duties if the court grants preliminary approval of the settlement described in the Settlement Agreement. (Rodriguez Dec., ¶¶ 6-7.) Plaintiff believes that their efforts helped to get the result obtained in this matter. (Rodriguez Dec., ¶ 8.)

Plaintiff has not entered into any undisclosed agreements, is not related to anyone associated with Class Counsel, and understands that the only compensation they will receive is the amount awarded by the court as a Class Representative Service Payment, and plaintiff’s share of the settlement as a Class Member and Aggrieved Employee. (Rodriguez Dec., ¶¶ 9-10.)

Analysis:

“A settlement or compromise of an entire class action, or of a cause of action in a class action, or as to a party, requires the approval of the court after hearing.” (Cal. Rules of Court, rule 3.769(a).) “Any party to a settlement agreement may serve and file a written notice of motion for preliminary approval of the settlement. The settlement agreement and proposed notice to class members must be filed with the motion, and the proposed order must be lodged with the motion.” (Cal. Rules of Court, rule 3.769(c).)

As plaintiff has filed the Settlement Agreement and the proposed Class Notice, and lodged a proposed order with the motion, the court finds that the motion is procedurally appropriate.

California Rules of Court, rule 3.769, sets forth the procedure for settlement of a class action before class certification. “In that case, certification and settlement approval occur simultaneously.” (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 93 (Luckey).) Under this procedure, and after a preliminary settlement hearing, the court may make “an order approving or denying certification of a provisional settlement class….” (Cal. Rules of Court, rule 3.769(d).) If the court grants preliminary approval of the settlement, the court’s order must include “the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing.” (Cal. Rules of Court, rule 3.769(e).)

Code of Civil Procedure section 382 authorizes class actions “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.” (Code Civ. Proc., § 382.) “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. [Citation.]” (Fireside Bank v. Superior Court (2007) 40 Cal.4th 1069, 1089.)

To determine whether a class is ascertainable, the court examines “(1) the class definition, (2) the size of the class, and (3) the means available for identifying class members. [Citation.]” (Reyes v. San Diego County Bd. of Supervisors (1987) 196 Cal.App.3d 1263, 1271.) “A related inquiry is manageability of the proposed class[.]” (Global Minerals & Metals Corp. v. Superior Court (2003) 113 Cal.App.4th 836, 849.) “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.” (Richmond v. Dart Industries, Inc. (1981) 29 Cal.3d 462, 470.) “The burden is on the party seeking certification to establish the existence of both an ascertainable class and a well-defined community of interest among the class members.” (Washington Mutual Bank, FA v. Superior Court (2001) 24 Cal.4th 906, 913.)

“Because a court evaluating certification of a class action that settled prior to certification is considering certification only in the context of settlement, the court's evaluation of the certification issues is somewhat different from its consideration of certification issues when the class action has not yet settled. In some ways, the court’s review of certification of a settlement-only class is lessened; as no trial is anticipated in a settlement-only class case, ‘the case management issues inherent in the ascertainable class determination need not be confronted.’ [Citation.] However, other certification issues, ‘those designed to protect absentees by blocking unwarranted or overbroad class definitions’ require heightened scrutiny in the settlement-only class context ‘for a court asked to certify a settlement class will lack the opportunity, present when a case is litigated, to adjust the class, informed by the proceedings as they unfold.’ [Citation.]” (Luckey, supra, 228 Cal.App.4th at pp. 93-94.) To protect absent class members whose rights may not have been considered by the settling parties, and to ensure the absence of fraud and collusion, heightened scrutiny is required if there has been no adversary certification. (Ibid.)

The available evidence and information appearing in the motion and described above is sufficient to show, for present purposes, that there exists a numerous, ascertainable class with a well-defined community of interest consisting of approximately 548 employees of Defendant who performed similar job duties, and who were subject to the same policies, practices, and procedures giving rise to the claims for meal and rest break violations, the purportedly unlawful payment of wages, the furnishing of inaccurate wage statements, and other matters alleged in the complaint. There also appears to be sufficient and reliable means available to identify class members from Defendants’ records. Plaintiff, who has agreed to serve as the Class Representative, appears to have claims typical of the Class and to be able to adequately represent the Class. Based on the above, there appears to be reasonable support for provisional certification of the Class for settlement purposes.

To protect the rights of class members including the named plaintiff, the court must determine if the proposed class action settlement is fair, adequate, and reasonable. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1800–1801 (Dunk).) The court considers relevant factors including “the strength of [the plaintiff’s] 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.” (Id. at p. 1801.) The court’s inquiry is limited “ ‘to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.’ [Citation.]” (Ibid.)

“[A] presumption of fairness exists where: (1) the settlement is reached through arm's-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.” (Dunk, supra, 48 Cal.App.4th at p. 1802.) “Public policy generally favors the compromise of complex class action litigation.” (In re Microsoft I-V Cases (2006) 135 Cal.App.4th 706, 723, fn. 14.)

Also relevant here, the court “shall review and approve any settlement of any civil action filed pursuant to” PAGA. (Lab. Code, § 2699, subd. (s)(2).) “[W]hile PAGA does not require the trial court to act as a fiduciary for aggrieved employees,” the court applies the same factors and standards of review to evaluate the fairness of a settlement of PAGA claims. (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 76-77 (Moniz); Lab. Code, § 2699.) The court’s review and approval of a PAGA settlement acts as a “safeguard” to ensure the negotiated resolution is fair and protects the interests of the public and the LWDA in maximizing the enforcement of state labor laws in consideration of PAGA’s purposes and policies. (Moniz, supra, 72 Cal.App.5th at pp. 76-77.) Factors useful in evaluating the fairness of a PAGA settlement include “the strength of the plaintiff’s case, the risk, the stage of the proceeding, the complexity and likely duration of further litigation, and the settlement amount….” (Id. at p. 77.)

The available evidence and information appearing in the motion and discussed above shows that plaintiff has engaged in informal investigations and discovery to which Defendant has ostensibly responded by providing relevant data and records. The Settlement Agreement also appears to be the product of adversarial discussions and negotiations by the parties, and a mediation. There is no evidence to suggest that the Settlement Agreement is the product of collusion. In addition, plaintiff has presented evidence of the risks of uncertainty associated with protracted litigation, including with respect to the defenses asserted by Defendant, and potential difficulties in certifying the class, among other things. The risks described in the Zabehi declaration and above appear to be substantial.

Information appearing in the Zabehi declaration also shows or suggests that Class Counsel has sufficient if not substantial experience with similar wage and hour and PAGA matters. Noted above, Class Counsel believes that the settlement is fair, adequate, and reasonable.

Though the court has some concerns with the broad definition of Released Parties included in the release by the Class Members described above, which includes, without explanation, unidentified “contractors” and other persons or entities who may have separately employed Class Members or Aggrieved Employees, the court understand the release by the Class Members and Aggrieved Employees appearing in the Settlement Agreement, which includes a release of other persons or entities apart from Defendant, to relate only to liability which may attach by virtue of a Class Member or Aggrieved Employee’s employment with Defendant, and not from any claims that may arise from any separate employment with the Released Parties. The court also understands the release by the Class Members to be limited to claims based on or reasonably arising from the facts alleged in this action and within the scope of the allegations of the complaint only, including as to those facts which give rise to plaintiff’s claim for penalties under PAGA. (See Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 538 [general discussion].)

To the extent any party contends that the court’s understanding of the scope of the Class Members’ release appearing in the Settlement Agreement as stated herein is incorrect, that party shall appear at the hearing on the present motion to identify this issue and why the court’s understanding is incorrect, and to explain the intent of the release by the Class Members set forth in the Settlement Agreement and described herein.

The court has also reviewed the proposed Class Notice, which is easy to understand, apprises Class Members of the pendency of and the claims and defenses asserted in the present action, explains each Class Member’s rights and obligations in connection with the proposed settlement, and notifies the Class of their right and opportunity to opt out or present objections to the Settlement Agreement. For these reasons, the court finds that the Class Notice complies with due process. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 694-695.)

The court further finds that the notice plan set forth in the Settlement Agreement constitutes sufficient notice to the Class Members of the present action and the terms of the settlement, as well as the date and location of the final approval hearing.

Though the factors discussed above indicate that the Settlement Agreement is or may be entitled to preliminary approval based on those factors, there exist deficiencies in the motion which prevent the court from determining that the settlement is in all respects fair, reasonable, adequate and in the best interests of the putative class.

For example, the Settlement Agreement requires the first page of the Class Notice to “prominently estimate the dollar amounts of any Individual Class Payment and/or Individual PAGA Payment payable to the Class Member...”, among other things. (Zabehi Dec., Exh. 2, ¶ 8.3.2.) The proposed Class Notice attached to the Settlement Agreement includes blank spaces where the Administrator is required to insert the estimated amount of each Individual Class Payment and Individual PAGA Payment. (Zabehi Dec., Exh. 2 at pdf p. 56 [first page of Class Notice].)

Though the Zabehi declaration provides an estimate of the total realistic value of the claims asserted by plaintiff in this action after accounting for the risks further discussed above, the court is unable to locate in the moving papers, any information regarding the estimated or average amount of each Individual Class Payment or Individual PAGA Payment that Class Counsel expects will be paid to the Class Members or Aggrieved Employees. The motion also includes no information to suggest that Class Counsel is unable to estimate those payments, or to show why this information was not included.

Furthermore, PAGA requires plaintiff to submit a copy of the proposed settlement to the LWDA “at the same time that it is submitted to the court.” (Lab. Code, § 2699, subd. (s)(2).) Though information appearing in the Zabehi declaration shows that plaintiff provided notice to the LWDA of the PAGA violations alleged in this action on September 6, 2023, the court is unable to locate any information or evidence that shows or suggests that a copy of the proposed settlement, which was executed by the parties in April 2025, was also provided to the LWDA at the time it was submitted to the court. For these and all reasons discussed above, the court is unable to determine that the proposed settlement is fair, reasonable, adequate, or in the best interests of the Class.

For the reasons stated herein, the court will continue the hearing on the motion to permit plaintiff an opportunity to cure or otherwise explain the deficiencies described herein. Plaintiff may cure or otherwise address these deficiencies in either a supplemental brief or declaration, and by submitting sufficient proof showing that the proposed settlement was submitted to the LWDA pursuant to statutory requirements.