Leticia Bernabe Benitez v. Westerlay Orchids, LLC, et al.

Case Number

23CV04353

Case Type

Hearing Date / Time

Wed, 10/15/2025 - 10:00

Nature of Proceedings

Plaintiff’s Motion For Final Approval Of Class Action And PAGA Settlement

Tentative Ruling

For Plaintiff Leticia Bernabe Benitez: Shoham J. Solouki, Grant Joseph Savoy, Solouki Savoy, LLP

                                   

For Defendants Westerlay Orchids, LP, TJO Floral, LLC, and Antoine Overgaag: Rafael Gonzalez, Christina M. Behrman, Sean Stratford-Jones, Mullen & Henzell L.L.P.

RULING

For all reasons discussed herein, the motion of Plaintiff for final approval of class action and “PAGA” settlement is granted. Plaintiff shall submit a corrected proposed order as provided herein, which must comply with Court rules. Counsel shall appear at the hearing and be prepared to discuss the matters described herein, and any other matters remaining for the Court at this time.

Background

On March 20, 2024, with leave of Court, Plaintiff Leticia Bernabe Benitez filed a first amended class action complaint (the FACC) against Defendants Westerlay Orchids, LLC (Westerlay LLC), Westerlay Orchids, LP (Westerlay LP), TJO Floral, LLC (TJO), and Antoine Overgaag (Overgaag) (collectively, Defendants), alleging eleven causes of action: (1) failure to provide required meal periods (Lab. Code, §§ 226.7, 510, 512, 1194, 1197; IWC Wage Order Nos. 8, 13, 14 & § 11); (2) failure to provide required rest periods (Lab. Code, §§ 226.7, 512; IWC Wage Order Nos. 8, 13, 14 & § 12); (3) failure to pay overtime wages (Lab. Code, §§ 510, 1194, 1198; IWC Wage Order Nos. 8, 13, 14 & § 3); (4) failure to pay minimum wages (Lab. Code, §§ 1194, 1197; IWC Wage Order Nos. 8, 13, 14 & § 4); (5) failure to timely pay wages during employment (Lab. Code, § 204); (6) failure to pay all wages due to discharged and quitting employees (Lab. Code, §§ 201, 202, 203); (7) failure to maintain required records (Lab. Code, §§ 226, 1174; IWC Wage Order Nos. 8, 13, 14 & § 7); (8) failure to furnish accurate itemized wage statements (Lab. Code, § 226; IWC Wage Order Nos. 8, 13, 14 & § 7); (9) failure to indemnify employees for necessary expenditures (Lab. Code, § 2802); (10) unfair and unlawful business practices (Bus. & Prof. Code, § 17200 et seq.); and (11) Labor Code Private Attorneys General Act of 2004 (Lab. Code, § 2698 et seq.)

Plaintiff brings the causes of action alleged in the FACC, which is the operative pleading, individually and on behalf of all other similarly situated current and former non-exempt employees who were employed by Defendants at any time during the four years preceding the filing of the complaint. (FACC, ¶¶ 4-5.) As alleged in the FACC:

Defendants, who are joint employers, failed to pay to their employees, wages earned for all hours worked, to provide required rest and meal periods, to compensate employees for all overtime hours worked, to properly maintain records and provide accurate itemized statements for each pay period, and to compensate employees for necessary business expenditures. (FACC, ¶¶ 13-14, 19-20, 24-25, 29-30, 34, 38, 45, 49, 52-53, 57.) Plaintiff requests an award of civil penalties under Labor Code 2698 et seq. (the Labor Code Private Attorneys General Act of 2004 or PAGA).

On April 23, 2024, Westerlay LP, TJO, and Overgaag, who the Court will refer to collectively as Defendants, filed an answer to the FACC, generally denying its allegations and asserting fifty-one affirmative defenses.

On October 29, 2024, the parties submitted a notice that they have reached a settlement of this action.

On March 4, 2025, Plaintiff filed an unopposed motion (the preliminary approval motion) for an order preliminarily approving a class action and PAGA settlement agreement (the settlement agreement).

After a hearing held on June 11, 2025, the Court granted the preliminary approval motion, finding that motion to be procedurally appropriate, and provisionally finding the settlement agreement to be fair, adequate, reasonable, in the best interests of the putative class, and within the range of acceptable settlements that could be ultimately given final approval by the Court.

In granting the preliminary approval motion, the Court preliminarily approved a non-reversionary gross settlement amount of $200,000 (the GSA) to be paid by Westerlay LP to settle and release claims asserted by Plaintiff on behalf of approximately 500 current and former non-exempt employees who worked for Westerlay LP in California (the Class or Class Members) from October 3, 2019, to the date the Court enters an order granting approval of the settlement agreement (the Class Period). The Class also includes current and former non-exempt “Aggrieved Employees” who worked for Westerlay LP from October 4, 2022, to the date the Court enters its order granting preliminary approval (the PAGA Period). The Court noted that Westerlay LP agreed to separately fund and pay all employer-side payroll taxes that may be owed as to any payments made under the terms of the settlement agreement.

Evidence and information appearing in the preliminary approval motion showed that the GSA will be disbursed to Class Members without requiring the submission of any claim, provided that a Class Member does not submit a compliant, valid, and timely written request to be excluded from the settlement agreement.

The Court noted that the net settlement amount or “NSA” available for distribution to the Class Members and Aggrieved Employees, is the GSA described above less the following payments or allocations which Phoenix will deduct from the GSA: (1) an amount not to exceed $66,000 payable to Class Counsel (the Class Counsel Fees Payment) as reimbursement for reasonable attorney’s fees incurred by Plaintiff to prosecute this action; (2) an amount not to exceed $20,000 payable to Class Counsel (the Class Counsel Litigation Expenses Payment) as reimbursement for reasonable expenses incurred by Plaintiff to prosecute this action; and (3) an amount not to exceed $9,850 payable to Phoenix (the Administration Expenses Payment) as reimbursement for reasonable fees and expenses incurred by Phoenix to administer the settlement.

Each of the Class Members who participate in the settlement agreement will receive a pro rata share of the NSA (the Individual Class Payment or Payments). To the extent a Class Member opts out of the settlement agreement by sending Phoenix a valid and timely request, Phoenix will retain that Class Member’s Individual Class Payment in the NSA to be distributed pro rata to the participating Class Members.

In addition, the parties agreed that civil penalties under PAGA, or the “PAGA Penalties”, would be paid from the GSA, in the total amount of $15,000, of which 75 percent or $11,250 (the LWDA PAGA Payment) will be allocated to the Labor & Workforce Development Agency (the LWDA), and 25 percent or $3,750 will be allocated to the Aggrieved Employees.

The settlement agreement further provides that each Aggrieved Employee will receive a pro rata share of the 25 percent of the PAGA Penalties (the Individual PAGA Payments), which will be calculated according to the number of pay periods during the PAGA Period in which an Aggrieved Employee worked for Westerlay LP for at least one day (the PAGA Pay Periods).

In granting the preliminary approval motion, the Court preliminary approved the appointment of Plaintiff as the “Class Representative”, the appointment of Phoenix Settlement Administrators (Phoenix) as the settlement administrator, and the appointment of the law firm of Solouki Savoy, LLP, as “Class Counsel”. 

The preliminary approval motion was sufficient to show the manner in which Phoenix would calculate each of the Individual Class Payments and Individual PAGA Payments. The available information also showed that 15 percent of each Individual Class Payment would be subject to tax withholding.

Class Counsel agreed to file and serve, not later than 16 Court days prior to the hearing on the present motion, a motion for an order approving the Class Counsel Fees Payment and Class Counsel Litigation Expenses Payment, which, subject to exception, Westerlay LP agreed not to oppose. The Court also approved the Administration Expenses Payment pursuant to a “not to exceed” bid from Phoenix.

In the preliminary approval motion, Plaintiff presented evidence and information which was sufficient to show the existence of a numerous, ascertainable class with a well-defined community of interest consisting of at approximately 500 current or former employees of Westerlay LP who were allegedly subject to the violations, unlawful employment policies and practices alleged in the FACC. Based on the evidence and information presented by Plaintiff, the Court found that there exists reasonable support for provisional certification of the settlement class.

The Court reviewed the “COURT APPROVED NOTICE OF CLASS ACTION SETTLEMENT AND HEARING DATE FOR FINAL COURT APPROVAL” (the Class Notice) attached to the settlement agreement as exhibit A, a copy of which will be provided to Class Members in English and Spanish. The Court found that the Class Notice is easy to understand, apprises Class Members of the pendency of and the claims and defenses asserted in this action, explains the rights and obligations of the Class Members in connection with the proposed settlement, and notifies Class Members of their right and opportunity to opt out or present objections to the settlement agreement. The Court found that the Class Notice complies with due process.

The Court further found that the release contained in the settlement agreement was appropriately limited to claims or causes of action arising during the Class Period and that were or reasonably could have been alleged in the FACC.

The preliminary approval motion also showed that Class Counsel submitted a copy of settlement agreement to the LWDA, and that the LWDA had not indicated that it had any objection to the settlement agreement, or that it intended to intervene in this action.

The Court determined that the settlement agreement was entitled to preliminary approval, that the settlement class should be provisionally certified, and that the notice and settlement administration deadlines should be approved as set forth in the preliminary approval motion, among other things. The Court scheduled a hearing for final approval of the settlement agreement for October 15, 2025, and indicated that it would determine the reasonableness of attorney’s fees and costs, Plaintiff’s incentive award, and administrative expenses upon noticed motion at the final settlement hearing.

On September 22, 2025, Plaintiff filed a motion for an order: granting final approval of the settlement agreement and its terms as fair, adequate, and reasonable to all parties and to all Class Members; finally certifying the Class for settlement purposes; finding that the Class Notice distributed to Class Members constituted the best notice practicable under the circumstances; approving payment of the Individual Class Payments to Class Members pursuant to the terms of the settlement agreement; approving a payment to the LWDA in the amount of $11,250 for penalties under PAGA; awarding Class Counsel attorney’s fees in the amount of $66,000 and litigation costs in the amount of $11,540.66; and approving payment of the Administration Expenses Payment described above.

The present motion is supported by a declaration of Kevin Lee (Lee) who is a Case Manager at Phoenix. (Lee Decl., ¶ 1.) Lee provides a detailed description of the tasks performed by Phoenix to administer the settlement agreement, which include mailing the Class Notice, confirming the number of weeks each Class Member worked during the Class Period and PAGA Period, determining the validity of any letters requesting exclusion from or asserting objections to the settlement agreement, calculating the net settlement amount, and issuing the Individual Class Payments, among other things. Lee Decl., ¶ 2.)

Lee states that on June 19, 2025, Phoenix received a data file from Westerlay LP which contained names, last known mailing addresses, social security numbers, dates of employment, and workweeks for each Class Member (the Class Data) during the Class Period. (Lee Decl., ¶ 3.) The final mailing list contained 546 individuals identified as Class Members. (Ibid.)

On June 30, 2025, Phoenix conducted a National Change of Address or “NCOA” search in an attempt to update the class list of addresses for accuracy, and mailed the Class Notice via U.S. first class mail, in English and Spanish, to all Class Members. (Lee Decl., ¶¶ 4-5 & Exh. A.)

Lee further states that during the notice period, Westerlay LP located an additional 9 inadvertently excluded Class Members who were each mailed a Class Notice on August 5, 2025, bringing the total number of Class Members to 555. (Lee Decl., ¶ 6.)

Lee asserts that, as of September 19, 2025, no Class Notices have been returned or considered undeliverable. (Lee Decl., ¶¶ 7-8.) In addition, Phoenix has received no requests for exclusions or objections from Class Members and no disputes regarding Class Member workweeks. (Lee Decl., ¶¶ 9-10.) The deadline to request exclusion from the settlement agreement, assert objections, or dispute workweeks was August 14, 2025, and the deadline for the added Class Members described above was September 18, 2025. (Lee Decl., ¶¶ 9-11.)

Lee states that there exist 555 Class Members who are deemed “Participating Class Members” representing 100 percent of the Class, and who have worked a collective total of 35,727 “Workweeks” during the Class Period, each of which is valued at approximately $2.74. (Lee Decl., ¶ 12.)

Lee further states that the NSA available to pay participating Class Members totals $97,769.34, which Phoenix determined by subtracting from the GSA, Class Counsel’s attorney’s fees, Class Counsel’s costs, the PAGA Penalties, and the Administration Expenses Payment. (Lee Decl., ¶ 13.) According to Lee, the highest Individual Class Payment totals approximately $812.36, the lowest Individual Class Payment totals approximately $0.38, and the average Individual Class Payment will be approximately $176.16. (Lee Decl., ¶ 14.) The payments issued to the participating Class Members will be subject to a reduction for the employee’s share of taxes and withholdings as to the wage portion of each Individual Class Payment. (Ibid.)

Lee also asserts that, as to the $15,000 in penalties under PAGA, there exist 343 Aggrieved Employees who worked a total of 10,158 pay periods during the PAGA Period. (Lee Decl., ¶ 15.) The highest Individual PAGA Payment is approximately $26.21, and the average Individual PAGA Payment is approximately $10.93. (Ibid.)

Westerlay LP will fund the employer-side taxes separately from the GSA. (Lee Decl., ¶ 16.) Costs incurred by Phoenix to administer the settlement agreement total $9,850.00. (Lee Decl., ¶ 17 & Exh. B.)

The motion is also supported by a declaration of Plaintiff’s counsel, Shoham J. Solouki (Solouki). Solouki states that a search of available public records did not disclose any overlapping class, representative, or collective actions currently pending in California (Solouki Decl., ¶ 8.) Solouki also provides information regarding the parties’ negotiations (Solouki Decl., ¶¶ 9-11), risks associated with proceeding with this action and counsel’s calculations of the maximum potential recovery by the Class Members (Solouki Decl., ¶¶ 12-34), and information showing the extent of Plaintiff’s investigation and discovery prior to settlement and why the settlement agreement was reached through the parties’ arm’s length negotiations (Solouki Decl., ¶¶ 35-40).

Solouki asserts that the attorney’s fees and costs requested by Plaintiff represent 33 percent of the GSA, that Solouki’s office solely represents employees in employment litigation matters, and that the requested fee is less than the 40 percent contingency fee typically charged by Solouki’s office for non-complex labor and employment matters such as the present action. (Solouki Decl., ¶ 44.)

Solouki describes the efforts expended by Class Counsel, and Solouki’s background and experience in similar labor and employment litigation. (Solouki Decl., ¶¶ 45-51 & 53.) Solouki also provides a summary of the hours expended by Class Counsel on initial case investigation, pleading, discovery, settlement, procedural issues, preliminary and final approval of the settlement agreement, and settlement administration. (Solouki Decl., ¶ 60.)

According to Solouki, the time expended by Class Counsel to litigate this action totals 97.5 hours, which Solouki contends is reasonable and was necessary to achieve the present results. (Solouki Decl., ¶¶ 61-62 [chart summarizing hours].) Solouki derived these hours from contemporaneous time records maintained by Class Counsel, which set forth the amount of time expended on each task rounded to the nearest one-tenth of an hour, and an explanatory description of the tasks performed. (Solouki Decl., ¶ 62.)

Solouki also provides a breakdown of the costs incurred by Class Counsel in this action, for which the settlement agreement permits reimbursement. (Solouki Decl., ¶¶ 68-69.)

The hourly rate for Solouki’s services and those of Solouki’s partner, Grant Savoy, is $800 per hour, which Solouki contends is reasonable in the Southern California legal market for attorneys who handle complex class actions involving hundreds of class members, and which accounts for a two year payment delay. (Solouki Decl., ¶ 52.) Solouki estimates that Class Counsel will expend another 40 hours to monitor the process leading up to final approval and the payments made to the Class, among other things. (Solouki Decl., ¶ 54.)

Solouki explains that Class Counsel took this case on a contingent basis and has expended a substantial amount of time and energy into achieving a settlement while receiving no payment, and that the risk to Class Counsel was significant particularly if Plaintiff had not been successful. (Solouki Decl., ¶ 55.) Solouki further asserts that, because most individuals cannot afford to pay for representation on an hourly basis, Class Counsel represents virtually all of its employment law clients on a contingency fee basis such that Class Counsel is not compensated for their time unless the client prevails at trial or cases are settled. (Solouki Decl., ¶ 56.) Solouki believes that the efforts of Class Counsel in this matter have resulted in a substantial benefit to the settlement class. (Solouki Decl., ¶ 57.)

The motion is also supported by a declaration made by Plaintiff, in which Plaintiff describes their participation in this action, the assistance provided by Plaintiff to Class Counsel, and the risks Plaintiff incurred to pursue this action, among other things. (Benitez Decl., ¶¶ 4-6.)

The above summary is not intended to be an exhaustive description of all information appearing in the Solouki declaration and Plaintiff’s declaration, and the Court has considered all admissible evidence and information presented in the motion. The Court’s records also reflect that the present motion is unopposed.

Analysis

After preliminary approval of a class action and PAGA settlement, and upon notice being provided to the settlement class, the final approval hearing is the final step in the settlement approval process. During the final approval hearing, the Court conducts a more detailed inquiry into the fairness of the proposed settlement. (Cal. Rules of Court, Rule 3.769(g).) If the Court approves the settlement agreement at the final approval hearing, the Court must make and enter a judgment that includes a provision for the Court to retain jurisdiction over the parties to enforce the terms of the settlement. (Cal. Rules of Court, Rule 3.769(h).)

“[A] trial Court has broad powers to determine whether a proposed settlement in a class action is fair.” (Mallick v. Superior Court (1979) 89 Cal.App.3d 434, 438.) A class action settlement is presumptively fair if it was reached through arm’s-length negotiations between experienced counsel after extensive investigation, litigation, and discovery. (Dunk v. Ford Motor Company (1996) 48 Cal.App.4th 1794, 1802.) 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. (Wershba v. Apple Computer (2001) 91 Cal.App.4th 224, 245.)

Each of the first three elements in regard to the presumption of fairness and described above were established at the time of preliminary approval. No further evidence or information has been presented which would alter the Court’s preliminary determination of each of these elements.

With respect to the fourth element described above, information in the Lee declaration shows that Phoenix did not receive any requests for exclusion from the settlement agreement from any Class Member, did not receive any objections to the settlement agreement, and did not receive any written disputes regarding individual workweeks or pay periods from the Class Members. The information is also sufficient to show that no Class Notice was returned to Phoenix as undeliverable. This information and evidence, and the additional factors discussed above, gives rise to a presumption that the settlement agreement is fair and adequate.  

The Court must also determine the adequacy of a class action settlement by independently satisfying itself that the consideration being received for the release of the class members’ claims is reasonable in light of the strengths and weaknesses of the claims and the risks of the particular litigation. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 129.) The Court has reviewed the evidence and arguments presented by Plaintiff, including with respect to the strengths and weakness of the claims asserted in this action and the uncertainties of and risks inherent in protracted litigation. Based upon the totality of the circumstances present here, the Court is satisfied that the settlement preliminarily approved is fair and reasonable, and will certify the Class for settlement purposes only.

The Court will further affirm named Plaintiff Leticia Bernabe Benitez as the Class Representative. Though Plaintiff expended time and effort, at Plaintiff’s own expense, to assist Class Counsel in pursuing the claims alleged in the FACC, and incurred risks in serving as the Plaintiff and representative of the Class, Plaintiff will not receive any service award. (See Benitez Decl., ¶¶ 4-6, 8-9 & 11.)

The Court further affirms and approves the allocation of $15,000 of GSA to the claims for civil penalties asserted under PAGA, and a payment of $11,250 to the LWDA, as required by law.

The Court will also approve the appointment of Solouki Savoy, LLP, as Class Counsel.

As to the Class Counsel Fees Payment of $66,000, the present record reflects that the fees requested by Class Counsel total 33 percent of the GSA. Information and evidence appearing in the Solouki declaration also shows that this amount is less than the lodestar fee which totals $78,000. (Solouki Decl., ¶¶ 61-62.)

“[T]he Court’s task in a negotiated settlement of fees is to determine if the negotiated fee is fair. That task requires the Court to review the settlement as a whole, including the fee award, to ensure that it was fairly and honestly negotiated, is not collusive and adequately protects the interests of the [parties].” (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 444.) For all reasons discussed above, under the circumstances present here considering the contingent nature of the representation of Plaintiff by Class Counsel and its attendant risks, the attorney’s fees sought by Class Counsel appear to be fair and reasonable. For these and all further reasons discussed above, the Court will approve the Class Counsel Fees Payment in the amount of $66,000.

The Class Counsel Litigation Expenses Payment also appears to be reasonable, and will be approved in the amount of $11,540.66 as provided in the settlement agreement and requested in the motion.

As to the Administration Expenses Payment, based on the information and evidence presented by Lee regarding the tasks undertaken by Phoenix to administer the settlement and the invoice provided by Phoenix, the Court will approve the Administration Expenses Payment in the amount of $9,850.

For all reasons stated above, the Court will grant the motion, as follows: (1) the Court grants final approval of the settlement agreement; (2) the Court grants final certification of the settlement class for settlement purposes only; (3) the Court finds that notice has been given to 555 Class Members with no notice packet having been deemed undeliverable; (4) the Court appoints Phoenix Settlement Administrators as the settlement administrator; (5) the Court finds that Phoenix has not received any objections to or requests for exclusion from the settlement, or disputes from any Class Members; (6) the Court appoints Plaintiff’s counsel Solouki Savoy, LLP, and Shoham J. Solouki, as settlement class counsel; (7) the Court appoints Plaintiff Leticia Bernabe Benitez as the representative for the settlement class; (8) the Court approves the terms of the settlement as to the claims for civil penalties alleged under PAGA, and the allocation of $15,000 to settle Plaintiff’s representative PAGA claims; (9) the Court approves an award of attorney’s fees (i.e., the Class Counsel Fees Payment) in the amount of $66,000; (10) the Court approves an award of litigation expenses (i.e., the Class Counsel Litigation Expenses Payment) in the amount of $11,540.66; and (11) the Court approves an award of settlement administration costs (i.e., the Administration Expenses Payment) to Phoenix in the amount of $9,850.

In addition, the Court will reserve jurisdiction over the parties for the purposes of implementing, enforcing, and or administering the settlement agreement or enforcing the terms of the judgement.

The Court has reviewed the proposed order submitted by Plaintiff and does not intend to sign it. The proposed order includes an award of costs not requested in the present motion or approved herein. (See Proposed Order, ¶ 13.) For these reasons, the Court will require Plaintiff to submit a corrected proposed order for the Court’s review that complies with California Rules of Court, rule 3.769, and which accurately reflects the Court’s ruling including with respect to the amount of the Class Counsel Litigation Expenses Payment approved herein.

Counsel shall appear at the hearing of the motion and be prepared to discuss a date for submission of a final report, and any other matters remaining at this time.