Kelly Ovieda vs Moss Motors LTD et al

Case Number

24CV02343

Case Type

Hearing Date / Time

Fri, 12/12/2025 - 10:00

Nature of Proceedings

Motion Approval

Tentative Ruling

For the reasons stated herein, the motion of plaintiff for preliminary approval of class and collective action settlement is granted in accordance with this ruling. Counsel shall appear at the hearing and be prepared to discuss all matters remaining at this time, as further described herein.

Background:

On April 24, 2024, plaintiff Kelly Ovieda (Plaintiff) filed a complaint against defendants Moss Motors Ltd., (Moss) and Milard Group Ltd. (Milard) (whom the court will, for ease of reference, refer to collectively as 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.

The complaint alleges that Plaintiff was employed by Defendants as an hourly, non-exempt employee from June 2008 through September 2021. (Compl., ¶¶ 8 & 18-19.) During Plaintiff’s employment, Defendants failed to compensate Plaintiff for all regular and overtime earned wages, to provide uninterrupted rest and meal periods, to pay minimum wages, to maintain or provide accurate wage statements and payroll records, to reimburse necessary business-related expenses, and to provide wages owed upon discharge or resignation. (Compl., ¶ 20 & 26-46.) Plaintiff brings the complaint on her own behalf, and on behalf of all current and former hourly-paid or non-exempt employees who worked for Defendants from four years preceding the filing of the complaint. (Compl., ¶¶ 13-14.)

Moss, who court records reflect was formerly known as Milard, answered the complaint on June 25, 2024, generally denying its allegations and asserting thirty affirmative defenses.

On June 23, 2025, Plaintiff filed an unopposed motion for an order: (1) preliminarily approving a “Class Action Settlement Agreement And Class Notice” (the Settlement Agreement); (2) conditionally certifying the class action claims for settlement purposes; (3) appointing Plaintiff as the representative of the class; (4) appointing counsel for Plaintiff as class counsel; (5) approving the form of a proposed class notice; and (6) scheduling a final approval hearing.

The motion is supported by a declaration of Plaintiff’s counsel, Christopher A. Adams (Adams), to which is attached a copy of the Settlement Agreement and a Notice of Proposed Class Representative Action Settlement (the Class Notice). (Adams Decl., ¶ 2 & Exh. 1.)

The Settlement Agreement:

Pursuant to the terms of the Settlement Agreement, the “Class” includes all persons currently or formerly employed by Moss in California as non-exempt employees, from April 24, 2020, through the date of preliminary approval (the Class Period). (Adams Decl., ¶ 21 & Exh. 1 [Settlement Agreement], ¶¶ 1.4 & 1.11.) Under the terms of the Settlement Agreement, Moss has agreed to pay the amount of $612,685 (the Gross Settlement Amount or GSA), plus employer payroll taxes. (Adams Decl., Exh. 1, ¶¶ 1.19 & 3.1.) The GSA is non-reversionary, and subject to an escalator clause in the event the total number of workweeks exceeds those stated in the Settlement Agreement. (Adams Decl., Exh. 1, ¶¶ 3.1 & 8.)

Subject to the court’s approval, the following amounts will be deducted and paid from the GSA: (1) attorney’s fees in the amount of $204,207.91, or not to exceed 33.33 percent of the GSA (the Class Counsel Fees Payment), to be paid, upon motion, to KJT Law Group, LLP and Lawyers for Justice, PC, (collectively, Class Counsel); (2) a “Class Representative Service Payment” in the amount of $7,500, to be paid to Plaintiff as the “Class Representative”; (3) litigation costs not to exceed $15,000 (the Class Counsel Litigation Expenses Payment), and to be paid to Class Counsel upon motion; and (4) administration expenses (the Administrator Expenses Payment) in an amount not to exceed $6,550, to be paid to ILYM Group, Inc., (the Administrator), whom the parties have agreed to appoint to administer the Settlement Agreement. (Adams Decl., Exh. 1, ¶¶ 1.2-1.3, 1.5-1.6, 1.12 & 3.2.) The parties represent in the Settlement Agreement that they and their counsel have no interest or relationship with the Administrator. (Adams Decl., Exh. 1, ¶ 7.1.)

After deducting the amounts described above, the remaining amount of approximately $379,427.09 (the Net Settlement Amount or NSA) will be distributed, in pro rata shares, to those members of the Class who do not timely request exclusion from the Class (the Participating Class Members) based on the number of workweeks each member worked during the Class Period. (Adams Decl., Exh. 1, ¶¶ 1.20, 1.22, 1.24 & 3.2.4.) Each pro rata share of the NSA (the Individual Class Payment) will be calculated at different rates depending on whether the workweeks were worked by the member prior to or after December 1, 2023. (Adams Decl., Exh. 1, ¶¶ 1.20 & 3.2.4.) Thirty-three percent of each Individual Class Payment will be allocated to the settlement of wage claims and subject to tax withholding. (Adams Decl., Exh. 1, ¶ 3.2.4.1.)

Should the court grant preliminary approval of the Settlement Agreement, Moss will, not later than 15 days after approval, deliver the name, last-known mailing address, Social Security number, and number of Class Period workweeks for each member of the Class (the Class Data) to the Administrator, which the Administrator will maintain in confidence. (Adams Decl., Exh. 1, ¶¶ 1.7 & 4.2.) In addition, Moss will fund the GSA, and any amount necessary to pay Moss’ share of payroll taxes, no later than 65 days after the “Effective Date”, as that term is defined in the Settlement Agreement. (Adams Decl., Exh. 1, ¶¶ 1.16 [definition of “Effective Date”] & 4.3.)

Within 14 days after Moss funds the GSA, the Administrator will mail checks for each Individual Class Payment to the Participating Class Members, and will pay the Administration Expenses Payment, the Class Counsel Fees Payment, the Class Counsel Litigation Expenses Payment, and the Class Representative Service Payment described above. (Adams Decl., Exh. 1, ¶ 4.4.) The face of each check representing an Individual Class Payment will prominently state that the check will be voided by the Administrator no less than 180 days after its mailing date. (Adams Decl., Exh. 1, ¶ 4.4.1.) Before mailing any check for an Individual Class Payment, the Administrator will update the recipient’s mailing address using the National Change of Address Database. (Ibid.)

To the extent a check for an Individual Class Payment is returned as undeliverable and without a forwarding address, the Administrator will perform an investigation and search for that Class member’s current address using all reasonably available sources including the National Change of Address Database, skip traces, and direct contact with the member, and, within 7 days, re-mail that check to any address ascertained through that investigation and search. (Adams Decl., Exh. 1, ¶¶ 1.9 & 4.4.2.) Funds which remain uncashed or cancelled after the void date described above, shall be transmitted to a mutually agreed upon cy pres. (Adams Decl., Exh. 1, ¶ 4.4.3.)

The Settlement Agreement includes a release by Plaintiff. (Adams Decl., Exh. 1, ¶ 5.1). The Settlement Agreement also includes a release by the members of the Class of “any and all claims under state, federal, or local law, whether statutory or common law, arising out of the claims expressly pleaded and all other claims, such as those under the California Labor Code, applicable Wage Orders, regulations, and/or other provisions of law, that could have been pleaded based on the facts alleged” in this lawsuit. (Adams Decl., Exh. 1, ¶ 5.2.)

Not later than 14 days after receiving the Class Data, the Administrator will mail the Class Notice, which will include a Spanish translation, to all members of the Class by first class-mail. (Adams Decl., Exh. 1, ¶ 7.4.2 & Exh. A.) The first page of the Class Notice will include an estimate of the dollar amount of any Individual Class Payment payable to that member of the Class, and the number of workweeks which were used to calculate that amount. (Ibid.)

Not later than 3 business days after the Administrator’s receipt of any Class Notice that is returned as undelivered, the Administrator shall re-mail the Class Notice using any forwarding address provided or, if no forwarding address is provided, the Administrator shall conduct the search and investigation described above, and re-mail the Class Notice to the most current address obtained during that investigation. (Adams Decl., Exh. 1, ¶ 7.4.3.) Any deadline to submit written objections, challenges to workweeks, or requests for exclusion from the Settlement Agreement will be extended by additional 14 days beyond that otherwise provided in the Class Notice for all Class Members whose notice is re-mailed. (Adams Decl., Exh. 1, ¶ 7.4.4.) The Administrator will inform the Class Member of the extended deadline with the re-mailed Class Notice. (Ibid.)

Members of the class who wish to exclude themselves, or “opt-out”, of the Settlement Agreement must send to the Administrator, by fax, email, or mail, a written and signed “Request for Exclusion”. (Adams Decl., Exh. 1, ¶ 7.5.1.) A Request for Exclusion is a defined as a letter from a member of the Class which reasonably communicates that member’s election to be excluded from the Class, which must include the member’s name, address, email address, or telephone number, and which must be faxed, emailed, or postmarked no later than 45 days after the Administrator mails the Class Notice, subject to an additional 14 days for those members of the Class whose Class Notice is re-mailed. (Adams Decl., Exh. 1, ¶¶ 1.29 & 7.5.1.) Every member of the Class who does not submit a timely and valid Request for Exclusion will be deemed a “Participating Class Member” and bound by the terms and conditions of the Settlement Agreement, including the releases described in that agreement. (Adams Decl., Exh. 1, ¶ 7.5.3.)

Each member of the Class shall, within 45 days after the Administrator mails the Class notice plus an additional 14 days for those members whose Class Notice is re-mailed, have the right to challenge the number of workweeks allocated to that member as stated in the Class Notice by communicating with the Administrator by fax, email, or mail, and by providing any supporting documentation. (Adams Decl., Exh. 1, ¶ 7.6.) Absent contrary or supporting documentation, the Administrator may presume that the workweeks set forth in that member’s Class Notice are correct, provided they are consistent with the Class Data. (Ibid.)

In addition, Participating Class Members may send written objections to the Administrator by fax, email, or mail, or, alternatively, may present oral objections at the final approval hearing. (Adams Decl., Exh. 1, ¶ 7.7.2.) Any written objections asserted by a member of the Class must be sent to the Administrator within 45 days after that member’s Class Notice is mailed, subject to an additional 14 days for those members whose Class Notice is re-mailed. (Ibid.)

The Administrator will establish, maintain, and use a Web site to post information to Class Members, which shall include the date, time and location for the final approval hearing, and copies of the Settlement Agreement, the present motion, the Class Notice, and any motions for final approval or payment of the amounts to be deducted from the GSA and described above. (Adams Decl., Exh. 1, ¶ 7.8.1.) The Administrator will also maintain and monitor an email address and a toll-free telephone number to receive calls, faxes, and emails from members of the Class. (Ibid.)

The Adams declaration:

Adams asserts that the parties agreed to attend mediation to attempt to resolve this matter before protracted litigation. (Adams Decl., ¶ 14.) In anticipation of that mediation, Moss produced Plaintiff’s personnel files and wage statements; Moss’ written policies and practices related to meal periods, rest periods, overtime, wage statements, payment of final wages, and any other wage-and-hour issues; the average hourly rate for all non-exempt employees; the total number of workweeks for the putative class; the estimated number of members of that class; the average number of non-exempt employees per pay period; the estimated number of class members who had signed arbitration agreements with class waivers; and sample time records and wage statements for the putative class. (Adams Decl., ¶ 15.) This information was further updated by Moss while the parties finalized the Settlement Agreement. (Ibid.) Plaintiff’s counsel also contacted members of the putative class to discuss the claims asserted in this action. (Ibid.)

The parties attended an all-day mediation session with mediator Christine Masters on April 22, 2025. (Adams Decl., ¶ 17.) At the time of that mediation, the putative class consisted of approximately 148 individuals. (Adams Decl., ¶¶ 16 & 20.)

Before, at, and after the mediation, the parties exchanged legal analysis and data pertaining to Plaintiff’s claims, aggressively pursued their respective positions, engaged in settlement negotiations, and provided the other with several settlement proposals. (Adams Decl., ¶ 18.) The Settlement Agreement was reached after the second day of mediation and continued negotiations. (Ibid.)

Adams asserts that, based on the data and policies provided by Moss, an analysis of sample wage and time records, counsel’s analysis of the case generally, and Plaintiff’s calculations, Moss’ exposure in this case totals $827,036.28. (Adams Decl., ¶ 27.) As to penalties for meal break violations, Moss’ potential exposure, according to Plaintiff’s calculations, is $380,432, which Plaintiff discounted by 80 percent based on potential challenges to class certification, the implementation by Moss of meal break policies during the Class Period, the payment by Moss of meal break premiums, and testimony from members of the Class showing that these members were able to take meal breaks. (Ibid. [first bullet point].) Applying this discount, Moss’ estimated exposure for meal break penalties totals $76,086.46. (Ibid.)

As to penalties for rest break violations, Adams asserts that Moss’ potential exposure totals $380,432.28, and that Plaintiff feels it is appropriate to also discount this exposure by 80 percent based on potential challenges to class certification, the implementation of rest break policies by Moss during the Class Period, testimony from members of the Class showing that they were able to take rest breaks, individual inquiries regarding whether a rest break was provided, and defenses asserted by Moss which include a contention that members of the Class were prohibited from working during any rest breaks. (Adams Decl., ¶ 27 [second bullet point].) Adams asserts that the discount applied by Plaintiff results in a potential exposure totaling $76,086.46 for alleged rest break violations. (Ibid.)

In addition, though Plaintiff calculated Moss’ potential exposure for unpaid minimum and overtime wages to total $760,864.56, based on the purported failure by Moss to pay approximately two hours of overtime each week, Adams states that it is appropriate to discount this exposure by 70 percent based on potential challenges to class certification, including the need for common evidence necessary to show off-the-clock work, and defenses on the merits asserted by Moss, which results in a realistic exposure of $228,259.36 for alleged wage violations. (Adams Decl., ¶ 27 [third bullet point].)

Plaintiff also feels it is appropriate to discount the potential exposure of Moss to penalties for inaccurate wage statements by 50 percent based on asserted challenges to class certification, and recent case law limiting penalties under Labor Code section 226, which results in an exposure to penalties totaling $188,700 for alleged violations of that section. (Adams Decl., ¶ 27 [fourth bullet point].)

Adams further asserts that, though the potential exposure of Moss to waiting time penalties totals $515,808, a discount representing 50 percent of this amount is appropriate based on the existence of a good faith dispute as to those claims upon which these derivative claims are based. (Adams Decl., ¶ 27 [sixth bullet point].) Adams also asserts that Plaintiff’s investigation revealed that the claim for unreimbursed business expenses did not have significant merit. (Adams Decl., ¶ 27 [fifth bullet point].)

Adam also states that Moss argued that each employee received a full thirty-minute meal and full ten-minute rest period and that its wage-and-hour policies are facially compliant, and that Moss rejected the claim for failure to pay for all hours worked by attempting to demonstrate that its methods of recording hours worked and calculating overtime complied with those approved by the Division of Labor Standards Enforcement. (Adams Decl., ¶  28.) Adams also asserts that members of the Class signed arbitration agreements which contained class waivers, resulting in Moss heavily discounting this claim. (Ibid.) According to Adams, Plaintiff acknowledges the strength of these claims and believes that class certification would be lengthy and expensive, with each party risking an unfavorable ruling. (Ibid.)

Adams further asserts that, had this case not settled, the parties would need to conduct extensive formal discovery, including written discovery and multiple depositions of party and percipient witnesses, to prepare the case for trial, and that Moss indicated from the inception of this litigation that it would aggressively litigate this case. (Adams Decl., ¶ 29.)

Adams states that, on average, each member of the Class will recover an amount totaling approximately $2,563.70, which Adams contends is above the net recovery for similar wage-and-hour cases in California considering the claims and defenses asserted by the parties, and the size of the Class. (Adams Decl., ¶ 20.)

Adams also provides information to show the educational background and experience in litigating employment law matters of Adams, and of attorneys Levon Shant Yepremian, Vache Thomassian, and Caspar Jivalagian, who Adams asserts are qualified to evaluate the claims and viability of defenses asserted in the action. (Adams Decl., ¶¶ 3-10 & 12.) Though Adams would have prosecuted this action through trial if a settlement was not reached, Adams believes that the Settlement Agreement is fair, reasonable, and adequate. (Adams Decl., ¶ 11.)

In support of the motion, Plaintiff states that, after they agreed to be a plaintiff and representative for other employees, located, gathered, and provided to Plaintiff’s counsel, information and documents in Plaintiff’s possession and related to Plaintiff’s employment with Moss. (Ovieda Decl., ¶ 5.) Plaintiff was also informed that they could be held responsible for Moss’ legal costs if the case were lost or a judgment for legal fees and costs was entered against Plaintiff, which would be searchable through the various internet search vehicles. (Ovieda Decl., ¶ 7.) Plaintiff also states that they prepared for a deposition which was never taken. (Ovieda Decl., ¶ 9.)

Plaintiff also prepared for mediation by further reviewing case documents and answering questions from Plaintiff’s attorneys about Plaintiff’s employment with Moss, and remained available on the day of mediation for questioning and approval of any settlement. (Ovieda Decl., ¶ 10.) Plaintiff also notes that the release by Plaintiff is not limited to wage-and-hour claims and includes potential claims for discrimination, retaliation, and harassment. (Ovieda Decl., ¶ 11.)

Plaintiff believes that they spent approximately 30 hours on projects necessary for this litigation, and that the Settlement Agreement is good for the members of the Class who Plaintiff asserts will receive money they would not otherwise have received if Plaintiff had not filed this case and performed the work described above and in Plaintiff’s declaration. (Ovieda Decl., ¶¶ 12-15.)

The motion is also supported by a declaration of Lisa Mullins (Mullins), who is the Administrator’s President. (Mullins Decl., ¶ 1.) Mullins provides information showing the Administrator’s experience in disseminating class action notices and administering class action settlements, and describing the duties the Administrator will undertake in this case if the court approves the appointment of the Administrator. (Mullins Decl., ¶¶ 2 & 4-9.)

Mullins further states that the Administrator has not had any financial interests in or affiliation with any of the parties to this action, that the fees of the Administrator are charged hourly, and that no additional charges to administer the Settlement Agreement, apart from those described above, will be incurred unless the class size increases or additional services are requested. (Mullins Decl., ¶¶ 3 & 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).)

The Settlement Agreement and the proposed Class Notice are each submitted, and a proposed order has been lodged, with the motion. For these reasons, 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).) 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.)

The available evidence and information shows that the proposed class is estimated to include approximately 148 individuals who were ostensibly ascertained from the payroll records included with the Class Data provided by Moss, and who worked a total of 15,931 workweeks during the Class Period. (Adams Decl., ¶¶ 16, 27 [fourth bullet point] & Exh. 1, ¶ 4.1; Memorandum at pp. 2-3 & 16.) This evidence and information also indicates that these individuals, including Plaintiff, were subject to the same purported policies or practices of Moss alleged in the complaint, and which failed to provide members of the Class with meal and rest breaks, and wages for all hours worked. (Memorandum at p. 16.)

For all reasons discussed above, the motion is sufficient to show the existence of a numerous, ascertainable class with a well-defined community of interest consisting of approximately 148 employees of Moss who were purportedly subject to meal and rest break violations, and unlawful employment policies and practices with respect to payment of wages and the furnishing of accurate wage statements. There also appears to be sufficient and reliable means available to identify members of the Class from the payroll records of Moss. In addition, Plaintiff appears to have claims typical of the Class and to be able to adequately represent the class. (See Ovieda Decl., ¶¶ 3, 12 & 14-15.) For these reasons, 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 also 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 (Microsoft).)

Information appearing in the motion shows that Plaintiff has engaged in informal investigations and discovery to which Moss has responded by providing the Class Data. Plaintiff has presented evidence as further detailed above, regarding the approximate amount of the Individual Class Payment to be issued to each of the members of the Class.

In addition, to evaluate the adequacy of the Settlement Agreement, Plaintiff’s counsel has accounted for potential difficulties associated with achieving class certification and prevailing on the merits of the claims alleged in this action, in particular with regard to whether members of the Class were able to take meal or rest breaks or were paid meal break premiums, whether the conduct of Moss includes inadvertent good faith mistakes, whether Moss’ written policies complied with applicable law, whether Moss in fact failed to reimburse necessary business expenses, and whether there exists common evidence necessary to show off-the-clock work. (See Adams Decl., ¶ 27.)

The Settlement Agreement appears to be the product of an adversarial, arms-length mediation and subsequent negotiations. The claims released by the Participating Class Members are appropriately limited to those which “aris[e] out of the claims expressly pleaded...” and those which “could have been pleaded based on the facts alleged in [this Action]....” (Adams Decl., Exh. 1, ¶ 5.2.) The Settlement Agreement further provides that this release does not include “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.” (Ibid.)

Plaintiff has also presented evidence of the risks of uncertainty associated with protracted litigation in regard to the defenses asserted by Moss, and potential difficulties in certifying the class. These risks appear to be substantial.

Based on the information provided in the Adams declaration, Class Counsel appear to have sufficient experience with wage and hour litigation matters. (See Adams Decl., ¶¶ 3-12.) The evidence and information described above and presented in the moving papers also suggests to the court that the settlement is fair, adequate, and reasonable, and in the best interests of the Class in light of known facts and circumstances. There is no evidence to suggest that the Settlement Agreement is the product of collusion.

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

The Settlement Agreement also provides that any checks representing an Individual Class Payment which is not cashed within 180 days will be voided, and that the unpaid residue resulting from those voided checks will be paid to an undisclosed, mutually agreed upon cy pres in the name of that individual member of the Class. (Adams Decl., Exh. 1, ¶ ¶ 4.4.3 & Exh. A [Class Notice], ¶3(E).)

Subject to exceptions which do not appear to apply here, Code of Civil Procedure section 384 provides: “It is the policy of the State of California to ensure that the unpaid cash residue and unclaimed or abandoned funds in class action litigation are distributed, to the fullest extent possible, in a manner designed either to further the purposes of the underlying class action or causes of action, or to promote justice for all Californians. The Legislature finds that the use of funds for these purposes is in the public interest, is a proper use of the funds, and is consistent with essential public and governmental purposes.” (Code Civ. Proc., § 384, subd. (a).)

Pursuant to section 384, after the parties report to the court the total amount actually paid to members of a class, “the court shall amend the judgment to direct the defendant to pay the sum of the unpaid residue or unclaimed or abandoned class member funds, plus any interest that has accrued thereon, to nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons, or that promote the law consistent with the objectives and purposes of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent. The court shall ensure that the distribution of any unpaid residue or unclaimed or abandoned class member funds derived from multistate or national cases brought under California law shall provide substantial or commensurate benefit to California consumers.” (Code Civ. Proc., § 384, subd. (b).)

Though a cy pres distribution of unpaid residue is generally authorized under section 384, neither the motion nor the Settlement Agreement include information showing whether any proposed distribution is, among other things, “appropriately useful in fulfilling the purposes of the underlying cause of action.” (Microsoft, supra, 135 Cal.App.4th at p. 724.) Notwithstanding the absence of this information, as the motion presently seeks only preliminary approval of the Settlement Agreement, the court interprets the provision providing for a mutually agreed upon cy pres distribution as requiring Plaintiff to show, before any such distribution is made, that the recipient of the distribution satisfies the terms of Code of Civil Procedure section 384, which the court will determine at an appropriate time.

Based on the evidence and information presented by Plaintiff and the additional matters further discussed above, the court finds that the Settlement Agreement is in 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, the terms of the Settlement Agreement, as well as the date and location of the final approval hearing.

For all reasons discussed above, the court determines that the Settlement Agreement is entitled to preliminary approval, that the settlement class should be provisionally certified, that counsel for Plaintiff should be appointed as counsel for the settlement class, that Plaintiff should be appointed as class representative for settlement purposes, that ILYM Group, Inc., should be appointed as the settlement administrator, and that the notice to the class and settlement administration deadlines should be approved as set forth in the motion. For these reasons, the court will grant the motion for preliminary approval of the Settlement Agreement.

The court will determine the reasonableness of attorney’s fees and costs, the incentive award, and the administrative expenses described herein upon noticed motion at the final settlement hearing. Counsel shall appear at the hearing of the present motion and shall be prepared to discuss scheduling for the final settlement hearing and any other matters remaining at this time.