Salvador Mesa vs Fielding Graduate University

Case Number

24CV00853

Case Type

Hearing Date / Time

Fri, 01/10/2025 - 10:00

Nature of Proceedings

Motion: Preliminary Approval

Tentative Ruling

For the reasons discussed herein, the motion of plaintiff for preliminary approval of a class action and “PAGA” settlement is granted in accordance with this ruling. Counsel shall appear at the hearing on the motion and be prepared to discuss scheduling for the final approval hearing and any other matters remaining for the Court at this time.

Background:

On May 7, 2024, with leave of court pursuant to a stipulation of the parties, plaintiff Salvador Mesa (Mesa) filed his operative first amended complaint (the FAC) against defendant Fielding Graduate University (Fielding) alleging twelve causes of action: (1) failure to pay minimum wages; (2) failure to pay wages and overtime under Labor Code section 510; (3) meal-period liability under Labor Code section 226.7; (4) rest-break liability under Labor Code section 226.7; (5) violation of Labor Code section 226, subdivision (a); (6) violation of Labor Code section 221; (7) violation of Labor Code section 204; (8) violation of Labor Code section 203; (9) failure to keep required payroll records under Labor Code sections 1174 and 1174.5; (10) failure to reimburse necessary business expenses under Labor Code section 2802; (11) violation of Business and Professions Code section 17200 et seq.; and (12) penalties pursuant to Labor Code section 2698 et seq. (the Private Attorneys General Act of 2004 or PAGA).

As alleged in the FAC:

Mesa brings this action on behalf of himself and all current and former employees of Fielding within the State of California who, at any time from four years prior to the filing of this lawsuit, are or were employed as non-exempt, hourly employees, including those employed as accounts payable specialists and in similar and related positions, and on behalf of certain subclasses described in the FAC. (FAC, ¶¶ 1, 44(a)-(k) & 140.) During the time Mesa was employed by Fielding, Fielding required Mesa to work shifts exceeding eight hours and “off the clock”, failed to provide Mesa with an opportunity to take full uninterrupted or duty-free rest periods and meal breaks, failed to pay to Mesa appropriate minimum, regular, or overtime wage rates, failed to provide paid sick days, failed to maintain and timely produce accurate payroll records in response to Mesa’s request, and required Mesa to incur necessary business expenses without reimbursement. (FAC, ¶¶ 4 & 9-41.)

Fielding answered the FAC on May 23, 2024, generally denying its allegations and asserting thirty-one affirmative defenses.

On August 8, 2024, the parties filed a joint statement asserting that they had reached a resolution of the claims alleged in the FAC and requesting a hearing date for preliminary approval.

On December 17, 2024, Mesa filed an unopposed motion for an order preliminarily approving: (1) a proposed class-wide settlement of this action as set forth in a “Class and PAGA Action Settlement Agreement” (the settlement agreement), a copy of which is attached as exhibit 1 to the declaration of Mesa’s counsel, Enoch. J. Kim (Kim); (2) the form and content of the notice of the settlement agreement (the Class Notice), a copy of which is attached to the settlement agreement as exhibit A, and the method for distributing the Class Notice; (3) the appointment of Mesa as class representative for settlement purposes only; (4) the appointment of Kim, Emil Davtyan, David Yeremian, Alvin B. Lindsay, and Melissa Rodriguez as “Class Counsel” for settlement purposes only; (5) the scheduling of a hearing date to consider the parties’ request for final approval of the settlement agreement and Mesa’s application for attorney’s fees and costs; and (6) the allocation of funds to claims made under PAGA. (Notice at p. 1, ¶¶ 1-7.)

The settlement agreement:

Under the terms of the settlement agreement attached to the Kim declaration as exhibit 1, Fielding has agreed to pay, on a non-reversionary basis, the amount of $600,000 (the gross settlement amount to settle and release all claims asserted by Mesa in the FAC on behalf of the “Class Members” who are defined as all persons employed as non-exempt, hourly employees by Fielding within the State of California from February 15, 2020 through September 16, 2024 (the Class Period). (Kim Decl., Exh. 1, ¶¶ 1.5, 1.10, 1.13, 1.17, 1.23, 3.1.) The parties have jointly selected Apex Class Action (Apex) to serve as the settlement administrator. (Id. at Exh. 1, ¶ 7.1.)

The “net settlement amount” which will be available for distribution to the Class Members is the gross settlement amount less the following payments or allocations which Apex will deduct from the gross settlement amount subject to the Court’s approval: a service or enhancement award of $10,000 (the Class Representative Service Payment) to Mesa who the parties agree shall serve as the “Class Representative”; attorney’s fees in the amount of $200,000 (the Class Counsel Fee Payment) to Class Counsel described above; reasonable litigation expenses and costs not to exceed $15,000 (the Class Counsel Litigation Expenses Payment) to Class Counsel; settlement administration costs to Apex not to exceed $7,000 (the Administration Costs); penalties in the amount of $50,000 under PAGA (the PAGA Penalties); the allocation of $12,500 or 25 percent of the PAGA Penalties to “Aggrieved Employees” defined as individuals who are or were employed by Fielding in California as non-exempt employees at any time from February 15, 2023, and September 16, 2024 (the PAGA Period); the allocation of $37,500 or 75 percent to the California Labor and Workforce Development Agency or LWDA (the LWDA PAGA Payment). (Kim Decl., Exh. 1, ¶¶ 1.2-1.4, 1.6-1.8, 1.14-1.15, 1.27-1.29, 1.32, 1.35, 3.2, 3.2.1-3.2.3, 3.2.5.)

Subject to the Court’s approval, the net settlement amount is estimated to be $318,000. (Kim Decl., ¶ 15.) Fielding estimates that there are 149 Class Members who collectively worked a total of 15,370 workweeks during the Class Period, and 93 Aggrieved Employees who worked a total of 2,816 pay periods during the PAGA period. (Id. at Exh. 1, ¶¶ 4.1 &.) Each individual share of the net settlement amount (the Individual Payment or Payments) will be calculated by Apex based on the number of workweeks the Class Member worked during the Class Period. (Id. at ¶ 3.2.4.) Each Class Member’s individual settlement share will be $2,134.23. (Id. at ¶ 15.) If the Court approves a lesser amount for any of the payments or allocations described above, the remainder will be added to the net settlement amount and distributed to the Class Members. (Id. at Exh. 1, ¶¶ 3.2.1-3.2.3 & 3.2.5.2.)

Apex will also calculate each pro rata share of the PAGA Penalties by dividing the amount of the allocated PAGA Penalties by the total number of pay periods worked by all Aggrieved Employees during the PAGA Period and multiplying the result by each “PAGA Pay Period”, defined as any pay period during the PAGA Period in which an Aggrieved Employee worked for Fielding for at least one day. (Kim Decl., Exh. 1, ¶¶ 1.31, 3.2.5.1.)

Of each Individual Payment to participating Class Members, 20 percent will be allocated to the settlement of wage claims subject to tax withholding and reporting requirements, 40 percent will be allocated to settlement of claims for interest, and the remaining 40 percent will go towards penalties not subject to withholdings or reporting requirements. (Kim Decl., Exh. 1, ¶ 3.2.4.1.)

Class Members may opt out of or object to the settlement agreement or dispute the number of work weeks or pay periods within 45 days from the mailing of the Class Notice, plus an additional 14 days if a Class Member’s Class Notice is re-mailed. (Kim Decl., Exh. 1 at p. 17-19 & ¶ 7.4.4, 7.6.)

The Class Notice attached to the settlement agreement as exhibit A will be mailed by Apex to all Class Members no later than 28 days after the Court grants preliminary approval, and in no event any later than 14 days after Apex receives class data from Fielding. (Kim Decl., Exh. 1, ¶¶ 4.2-4.4, 7.4.2.). The Class Notice includes a summary of the lawsuit and the terms of the settlement agreement including the gross settlement amount, the net settlement amount, and the manner in which each Individual Payment and pro rata share of PAGA Penalties will be calculated by Apex, and provides Class Members with instructions for how to update their address with Apex, request exclusion from or object to the settlement, and dispute the number of workweeks or pay periods attributed to each Class Member per Fielding’s records. (Id. at Exh. 1 [Exh. A, Class Notice]; see also ¶¶ 7.5 & 7.7 [method for requesting exclusion or opting out].). The Class Notice also informs Class Members of their number of workweeks and PAGA Pay Periods, and their anticipated Individual Payment and individual share of PAGA Penalties. (Ibid.)

Prior to issuing settlement checks for Individual Payments or for each of the Aggrieved Employees’ pro rata share of PAGA Penalties, Apex will update each recipient’s mailing address using the National Change of Address Database. (Kim Decl., Exh. 1, ¶ 4.4.1.) The settlement checks will be mailed to Class Members and Aggrieved Employees within 14 days after Fielding funds the gross settlement amount, and shall prominently state that the check will be voided 180 days after the date of mailing. (Id. at Exh. 1, ¶¶ 4.4,  4.4.1.)

Within seven days of receiving any returned check, Apex must re-mail the check to the forwarding address provided or to an address ascertained by Apex through an investigation and search for a current mailing address using all reasonably available sources, methods, and means including, but not limited to, the National Change of Address database, skip traces, and direct contact by Apex with Class Members. (Kim Decl., Exh. 1, ¶¶ 1.11 & 4.4.1.)

All funds represented by checks for an Individual Payment or pro rata share of PAGA Penalties that remain uncashed or are canceled after the void date shall be transmitted 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). (Kim Decl., Exh. 1, ¶ 4.4.3.)

The settlement agreement includes a release by Class Members of “any of the claims, causes of action or legal theories of relief pleaded and/or that could have been pled in the Operative Complaint, including: (1) failure to pay minimum wages; (2) failure to pay wages and overtime under Labor Code 510; (3) meal period liability under Labor Code 226.7; (4) rest break liability under Labor Code 226.7; (5) violation of Labor Code 226; (6) violation of Labor Code 221; (7) violation of Labor Code § 204; (8) violation of Labor Code § 203; (9) failure to maintain records required under Labor Code §§ 1174, 1174.5; (10) failure to reimburse necessary business expenses under Labor Code § 2802; and (11) violation of Business & Professions Code 17200 et seq., and from the claims, causes of action or legal theories of relief that could have been alleged in the Operative Complaint based on the allegations therein” (the Released Class Claims). (Kim Decl., Exh. 1, ¶ 5.2.)

As to the Aggrieved Employees, they are deemed to release under the settlement agreement “all claims for any and all claims for the recovery for civil penalties, attorneys fees and costs permissible under PAGA which Plaintiff and/or the Aggrieved Employees had, or may claim to have, against Released Parties, arising out of the violations alleged in the Mesa FAC, or the PAGA Notice submitted in connection with the Mesa Action, including failure to pay overtime compensation, failure to pay minimum wages, failure to provide compliant meal and rest breaks, failure to pay meal and rest period premiums, failure to pay all wages owed at discharge or resignation; failure to timely pay wages during employment; failure to provide complete and accurate wage statements; failure to keep complete and accurate payroll records; failure to reimburse necessary business-related expenses; and violations of Labor Code sections 201, 202, 203, 204, 206.5, 210, 218, 218.5, 218.6, 221, 226, 226.2, 226.3, 226.4, 226.7, 246, 248.1, 248.2, 248.5, 432.5, 510, 511, 512(a), 558, 558.1, 1174, 1174.5, 1182.12, 1185, 1194, 1194.1, 1194.2, 1197, 1197.1, 1197.5, 1198, 1198.5, 1199, 2698, et seq., 2800, 2802, 2926, 2927, and the applicable IWC Wage Orders. This release is limited to claims arising during the PAGA Period ….” (Kim Decl., Exh. 1, ¶ 5.4.)

The settlement agreement also includes a release of claims by Mesa. (Kim Decl., Exh. 1, ¶¶ 5.1 & 5.1.1.)

Within ten days after Apex disburses all funds in the gross settlement amount, Apex will provide to Class Counsel and counsel for Fielding a final report detailing its disbursements of all payments made under the settlement agreement, and will, at least fifteen days prior to any deadline set by the Court, prepare a signed declaration for filing with the Court attesting to these disbursements. (Kim Decl., Exh. 1, ¶ 7.8.6.)

The gross settlement amount will be fully funded by Fielding no later than fourteen days following the date the Court finally approves the settlement agreement, the date for filing an appeal of any objection to the settlement, or the date of the resolution of any such appeal, whichever is later. (Kim Decl., Exh. 1,  ¶ 4.3.) The gross settlement amount is subject to upward adjustment to the extent the final number of weeks worked by the Class Members during the Class Period increases by more than 10 percent of the collective number of total workweeks described above. (Id. at Exh. 1, ¶ 8.)

The declaration of Kim:

Kim declares that he is senior counsel at D.Law, counsel of record for Mesa, and the manager of D.Law’s class action and PAGA settlement department. (Kim Decl., ¶ 62.) Kim declares that, before filing this lawsuit, Class Counsel researched the facts and circumstances underlying the issues and applicable law, which required discussions and interviews with Mesa, informal discovery, communications with defense counsel, reviewing and analyzing records and data including Fielding’s employment policies and Mesa’s personnel file, researching applicable law, and constructing damage models. (Id. at ¶ 10.) Shortly after the action was initiated, and based on the levels of risk present for Mesa and Fielding, the parties agreed to explore early resolution through mediation and to engage in informal discovery. (Id. at ¶¶ 4 & 11.)

The parties participated in an all-day mediation on July 17, 2024, with Lisa Klerman who Kim describes as a “respected and highly experienced mediator in wage and hour class actions.” (Kim Decl., ¶ 12.) During the mediation, the parties discussed, at arm’s length and with the assistance of the mediator, all aspects of the case including the risks to both parties and how the law applied to the facts of this case. (Id. at ¶¶ 12 & 24(A).) Following a full day of mediation, the parties agreed to general settlement terms to resolve the lawsuit, and continued to work together to negotiate settlement terms following mediation, which are set forth in the settlement agreement. (Id. at ¶ 12.)

Kim contends that, based on the average rate of pay for the Class Members during relevant time periods and the number of shifts worked, and assuming that the Class Members endured five minutes of “off-the-clock” work per shift, the total unpaid wages owed to the class by Fielding is $130,433. (Kim Decl., ¶ 34.) In addition, Mesa’s expert estimated that Fielding’s maximum total exposure on the meal break claim was approximately $812,875, assuming a 50 percent violation rate and based on the total meal break violations and the average hourly yearly pay at issue. (Id. at ¶ 38.) As to the claim for unpaid sick days, Mesa’s expert estimated Fielding’s maximum exposure to be $3,135, inclusive of interest. (Id. at ¶ 48.)

Though Mesa’s expert estimated that Fielding’s maximum total exposure on the rest break claim was approximately $1,715,304, which is based on the number of rest break violations and which assumes a 100 percent violation rate, Fielding maintained that it provided a reasonable opportunity for Class Members to take duty-free rest breaks which Fielding was not required to record. (Kim Decl., ¶ 40.) Kim contends that because these considerations would likely reduce the damages ultimately awarded, Class Counsel substantially discounted the rest break claim which, according to Kim, was not a major factor for liability in this case. (Ibid.)

Mesa’s expert also estimated Fielding’s maximum total exposure on the claim for violations of Labor Code section 226, which is based on a purported failure by Fielding to provide accurate wage statements, to be approximately $179,500, which Class Counsel reduced based on Fielding’s claims that it did not knowingly or intentionally fail to provide accurate wage statements, and because this claim is derivative of other claims. (Kim Decl., ¶ 42-43.) For similar reasons, Class Counsel also steeply discounted Fielding’s maximum exposure as to the alleged failure by Fielding to pay all wages due at termination. (Id. at ¶¶ 44-47.)

As to the claim for penalties under PAGA, because these claims are derivative of other claims, permissive, and subject to the same defenses, and based on the defenses asserted by Fielding to the PAGA claim, Class Counsel substantially reduced the PAGA recovery which Mesa’s expert estimated to be approximately $727,400. (Kim Decl., ¶¶ 49-52.)

Kim is of the opinion that the settlement agreement includes appropriate discounts as further described above, is fair, reasonable, and adequate, and in the best interests of the class. (Kim Decl., ¶¶ 13 & 54-55.) In light of uncertainties surrounding the risk of further litigation including the possibility of losing class certification, the defenses asserted by Fielding, and the fees and costs which will be incurred should the matter proceed through further discovery and trial, Kim believes that the total consideration and payment set forth in the settlement agreement is adequate. (Id. at ¶¶ 13 & 27-29.)

Kim further states that a copy of the settlement agreement will be submitted to the LWDA concurrently with the filing of the present motion. (Kim Decl., ¶ 30.) Kim also provides a detailed description of the collective qualifications, background, and experience of Class Counsel with respect to wage and hour and PAGA actions. (Id. at ¶¶ 59-63.)

Declaration of David Yeremian:

In support of the motion, Mesa also submits the declaration of his counsel, David Yeremian (Yeremian), who states he is the managing attorney of D.Law, Inc. (Yeremian Decl., ¶ 1.) Yeremian declares that D.Law took this case on a contingent-fee basis against what Yeremian describes as a business represented by a reputable defense firm, which required D.Law to pay careful attention to the economics involved. (Id. at ¶ 12.) Yeremian further states that when accepting cases on a contingent basis, D.Law typically expects to receive a fee which exceeds their normal hourly rates to compensate for the risk involved and due to counsel’s inability to accept other matters. (Ibid.) Yeremian declares that this case claimed a significant portion of Class Counsel’s time and attention throughout its pendency. (Ibid.)

Yeremian asserts that D.Law’s attorneys, paralegals, and staff have billed a substantial number of hours to prosecute this action, and that a lodestar multiplier will not be necessary to confirm the reasonableness of the fee award. (Yeremian Decl., ¶ 13.) Yeremian does not anticipate litigation costs to exceed $15,000, and states that Class Counsel will provide a detailed invoice of costs. (Id. at ¶ 14.)

The Mesa declaration:

To support the request for approval of the Class Representative Service Payment, Mesa submits a declaration stating that he worked as an Accounts Payable Specialist for Fielding performing tasks relating to invoices and reimbursements. (Mesa Decl., ¶ 2.) Mesa believes that the policies of Fielding were uniformly applied to all employees who provided administrative services in California, and that he is similarly situated with the other Class Members. (Ibid.)

Mesa further asserts that he understood that as Class Representative, he is expected to represent other employees’ interests and to place those interests ahead of his own, and that Mesa signed an acknowledgment of his duties as a Class Representative at the outset of this action. (Mesa Decl., ¶ 7.) Mesa remains willing to pursue the Class Members’ claims vigorously, and does not believe his interests are averse to those of the Class Members. (Id. at ¶ 8.)

Mesa declares that he has expended at least 25 hours of his time to participate in this litigation, which included discussing the claims and information regarding Mesa’s employment with Fielding and the working conditions Mesa operated under, investing time and effort to research and draft the claims Mesa could bring against Fielding, searching for and gathering documents and responding to informal discovery before mediation, communicating with Class Counsel regarding other witnesses, preparing for the mediation, and preparing the final settlement agreement and present motion. (Mesa Decl., ¶¶ 9-10.) Mesa has chosen to serve as the Class Representative notwithstanding Mesa’s concerns about how his role in this action may adversely affect his prospects for future employment or that Mesa could have been ordered to pay Fielding’s litigation costs had Mesa not prevailed in the action. (Id. at ¶¶ 11-12.)

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).)

Mesa has submitted a copy of the settlement agreement and the proposed Class Notice, and lodged a proposed order with the Court. Therefore, the Court finds that the present 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, a party to the settlement files a motion for preliminary approval which must include the settlement agreement and proposed notice to the class members, and lodges a proposed order. (Cal. Rules of Court, rule 3.769(c).) After a preliminary settlement hearing, the court makes “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.)

As further detailed above, the proposed class for purposes of settlement consists of approximately 149 Class Members, which have been identified by Fielding based on its payroll and personnel records. (Kim Decl., ¶ 18.) In addition, available information demonstrates that the 149 Class Members were subject to the purported violations and policies or practices of Fielding alleged in the FAC. Based on Mesa’s analysis of the claims and defenses asserted in this matter and as further described above, the policies and practices described in the FAC were applied to all employees who are members of the proposed class. (Id. at ¶ 19.) 

Mesa has presented evidence that there is a numerous, ascertainable class with a well-defined community of interest consisting of at approximately 149 current or former employees of Fielding who were purportedly subject to meal and rest break violations, and unlawful employment policies and practices with respect to payment of wages, the furnishing of accurate wage statements, and other claims alleged in the FAC. There also appears to be sufficient and reliable means available to identify members of the class from the records of Fielding. The Class Representative also appears to have claims which are typical of other Class Members and appears to be able to adequately represent the class. Based on the above, there appears to be reasonable support for provisional certification of the settlement class.

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 [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.)

With regard to settlements of claims brought under PAGA, “while 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 PAGA settlement. (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.)

A copy of the proposed settlement must be provided to the LWDA at the same time it is submitted to the court. (Lab. Code, § 2699, subd. (l)(2).) Available information indicates that Class Counsel submitted the settlement agreement to the LWDA on the same date the present motion was filed. (See Kim Decl., ¶ 30.) There is no information to suggest or demonstrate that the LWDA has indicated it has any objection to the settlement agreement or intends to intervene in the action.

Mesa has engaged in informal investigation and discovery to which Fielding has ostensibly responded by providing, among other things, relevant data and records pertaining to the class and the claims asserted in the FAC. Mesa has also presented evidence, which is further detailed above, regarding the approximate amount of each Individual Payment to be issued to the Class Members and each Aggrieved Employees’ pro rata share of the allocated PAGA Penalties. In evaluating the adequacy of the settlement, Class Counsel also accounted for potential difficulties associated with achieving or maintaining class certification and prevailing on the merits of the claims alleged by Mesa in the litigation, in particular with regard to whether Class Members were provided the opportunity to take duty-free rest breaks and whether Fielding knowingly, willfully, or intentionally committed the violations alleged in the FAC. (See, e.g., Kim Decl., ¶¶ 40, 42, 46.)

The settlement agreement appears to be the product of an arm’s-length, non-collusive mediation and the parties’ post-mediation negotiations. The release by the Class Members is appropriately limited to claims which are based on or related to the facts alleged in this action only, including facts underlying Mesa’s claim for penalties under PAGA. Mesa has also presented sufficient evidence of the risks and uncertainty associated with protracted litigation based on defenses asserted by Fielding as well as potential difficulties in certifying the class. These risks appear to be substantial.

Based on the information provided in the Kim and Yeremian declarations further described above, Class Counsel has substantial experience with similar matters. Class Counsel believes that the settlement is fair, adequate, and reasonable. Based on the above and the evidence presented in the moving papers, it appears to the Court that, in light of known facts and circumstances, the settlement is fair, adequate, and reasonable, and in the best interests of the Class Members, including members of the PAGA settlement class. There is no evidence to suggest that the settlement agreement is the product of fraud or collusion by the parties.

The Court has reviewed the proposed Class Notice, which is easy to understand, and which sufficiently apprises Class Members of the pendency of the litigation, the claims and defenses asserted in the present action, the rights and obligations of the Class Members in connection with the proposed settlement, and the right and opportunity of the Class Members 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.)

Based on the evidence and information presented by Mesa, the Court finds that the settlement agreement is in all respects fair, reasonable, adequate and in the best interests of the putative class. 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 agreement as well as the date and location of the final settlement hearing. Therefore, the Court finds that the settlement agreement is entitled to preliminary approval, that the settlement class should be provisionally certified, that Class Counsel should be appointed as counsel for the settlement class, that Mesa should be appointed as Class Representative for settlement purposes, that Apex should be appointed as the settlement administrator, and that the Class Notice and settlement administration deadlines should be approved as set forth in the motion. Accordingly, the motion for preliminary approval of class action settlement will be granted, in part.

The Court will determine the reasonableness of the Class Representative Service Payment, Class Counsel Fee Payment, Class Counsel Litigation Expenses Payment, and Administration Costs upon noticed motion at the final settlement hearing. Counsel shall appear at the hearing on the present motion and be prepared to discuss scheduling for the final settlement hearing and any other matters remaining at this time.