On 03/29/2018 CLAIRE SAUNDERS filed a Labor - Other Labor lawsuit against EMC RESTAURANT GROUP LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are SAMANTHA P. JESSNER and YOLANDA OROZCO. The case status is Disposed - Judgment Entered.
Disposed - Judgment Entered
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
SAMANTHA P. JESSNER
EMC RESTAURANT GROUP LLC
DOES 1 TO 10
MOON KANE ESQ.
MOON & YANG APC
RAINES FELDMAN LLP
KATUNICH LAUREN JEAN
KATUNICH LAUREN J.
3/9/2020: Notice of Ruling
2/26/2020: Minute Order - MINUTE ORDER (ORDER TO SHOW CAUSE RE: RECEIPT OF JUDGMENT)
1/21/2020: Notice - NOTICE OF RULING
12/19/2019: Declaration - DECLARATION OF MICHAELA SLEZAK IN SUPPORT OF PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
12/19/2019: Declaration - DECLARATION OF H. SCOTT LEVIANT IN SUPPORT OF PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
12/19/2019: Declaration - DECLARATION OF DEBBIE YI IN SUPPORT OF PLAINTIFF'S MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT
10/21/2019: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 10/21/2019
10/21/2019: Minute Order - MINUTE ORDER (COURT ORDER)
9/26/2019: Minute Order - MINUTE ORDER (HEARING ON MOTION TO CONFIRM SETTLEMENT)
9/27/2019: Notice of Ruling - NOTICE OF RULING NOTICE OF RULING REGARDING PLAINTIFFS' MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
8/19/2019: Declaration - SUPPLEMENTAL DECLARATION IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT
4/10/2019: Minute Order - MINUTE ORDER (POST-MEDIATION STATUS CONFERENCE)
12/14/2018: Certificate of Mailing for - Certificate of Mailing for Minute Order (Non-Appearance Case Review) of 12/14/2018
12/14/2018: Minute Order - Minute Order (Non-Appearance Case Review)
1/7/2019: Certificate of Mailing for - Certificate of Mailing for [Notice of Case Reassignment and Order for Plaintiff to Give Notice]
7/19/2018: CASE MANAGEMENT STATEMENT -
7/12/2018: CASE MANAGEMENT STATEMENT -
Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Order to Show Cause Re: (Receipt of Judgment) - HeldRead MoreRead Less
DocketNotice of Ruling; Filed by Claire Saunders (Plaintiff)Read MoreRead Less
DocketProof of Service by Mail; Filed by Claire Saunders (Plaintiff)Read MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Receipt of Judgment)); Filed by ClerkRead MoreRead Less
DocketJudgment; Filed by Claire Saunders (Plaintiff)Read MoreRead Less
DocketOrder (Granting Plaintiffs' Motion for Final Approval of Class Action Settlement and Entry of Judgement); Filed by Claire Saunders (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Order to Show Cause Re: (Receipt of Judgment) - Held - ContinuedRead MoreRead Less
DocketMinute Order ( (Order to Show Cause Re: Receipt of Judgment)); Filed by ClerkRead MoreRead Less
DocketNotice (OF RULING); Filed by Claire Saunders (Plaintiff)Read MoreRead Less
Docketat 08:30 AM in Department 31, Yolanda Orozco, Presiding; Hearing on Motion - Other (Final Approval of Class Action Settlement) - Held - Motion GrantedRead MoreRead Less
DocketAnswer; Filed by EMC Restaurant Group, LLC (Defendant)Read MoreRead Less
DocketNotice; Filed by Plaintiff/PetitionerRead MoreRead Less
DocketNOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HEARING RE: FAILURE TO FILE PROOF OF SERVICERead MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketPROOF OF SERVICE SUMMONSRead MoreRead Less
DocketNotice of Case Management Conference; Filed by ClerkRead MoreRead Less
DocketOSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
DocketComplaint; Filed by Claire Saunders (Plaintiff)Read MoreRead Less
DocketPAGA REPRESENTATIVE ACTION COMPLAINTRead MoreRead Less
DocketSUMMONSRead MoreRead Less
Case Number: BC700158 Hearing Date: January 10, 2020 Dept: 31
On March 29, 2018, Plaintiff Claire Saunders, on behalf of all other aggrieved employees and the State of California filed the instant action against EMC Restaurant Group, LLC and Does 1 through 10. The Complaint asserts a single cause of action for Civil Penalties under PAGA (Cal. Labor Code § 2699, et seq.). On August 16, 2019, Plaintiff filed the First Amended Complaint “FAC”. The FAC added Michaela Slezak, Debbie Yi, and Sabrina Schalk as Plaintiffs and EMC Concord, LLC; EMC Irvine, LLC; and EMC Santa Row, LLC as Does 1-3. It asserts causes of action for:
Civil Penalties under PAGA [Cal. Lab. Code § 2699, et seq.];
Fair Labor Standards Act [29 U.S.C. § 201, et seq.];
Failure to Pay Minimum and Straight Time Wages [Cal. Lab. Code §§ 1194, 1194.2, and 1197];
Failure to Pay Overtime Compensation [Cal Lab. Code § 1194 and 1198];
Failure to Provide Meal Periods [Cal. Lab. Code § 226.7, 512];
Failure to Authorize and Permit Rest Periods [Cal. Lab. Code § 226.7];
Failure to Timely Pay Final Wages at Termination [Cal. Lab. Code §§ 201-203];
Failure to Provide Accurate, Itemized Wage Statements [Cal. Lab. Code § 226]; and
Unfair Business Practices [Cal. Bus. & Prof. Code §§ 17200, et seq.].
On September 26, 2019, the Court preliminarily approved the Class Action Settlement in this case. The Settlement settles Los Angeles County Superior Court case number BC700158 and related case United States District Court, Central District of California case number 2:17cv09059-AB-AFM.
California Rules of Court, rule 3.769(g), provides for an inquiry into the fairness of the proposed settlement prior to the final approval hearing. After this, the Court must make and enter judgment, including a provision for the retention of the court's jurisdiction over the parties to enforce the terms of the judgment. (See Cal. Rules of Court, Rule 3.769(h).) The class action may not be dismissed once judgment is entered. (See Cal. Rules of Court, Rule 3.770.) All class settlements are subject to a settlement hearing and Court approval before entry of judgment or final order.
The trial court has broad powers to determine whether a proposed settlement is fair. (Mallick v. Superior Court (1979) 89 Cal. App. 3d 434, 438.) The California standard for approval of class settlements is similar to the federal requirement that the settlement be fair, reasonable, and adequate for class members overall. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801.)
Notice, Opt-Outs, and Recovery under Settlement
The parties engaged CPT Group, Inc. as Settlement Administrator. (Leviant Decl. ¶ 33.) On October 10, 2019, CPT Group sent individual Notices to 1,080 Settlement Class Members via First Class mail. (Cofinco Decl. ¶ 5-7.) Of the Notices that were mailed, 132 were returned and 84 Notices were re-mailed after skip tracking. (Cofinco Decl. ¶ 9-10.) Ultimately, 55 notice packets were undeliverable. (Cofinco Decl. ¶ 10.)
The Class Notice advised Class Members that they could submit a dispute, request for exclusion, or objection to the settlement by November 25, 2019. (Cofinco Decl. ¶ 7.) 67 Class Members chose to opt into the FLSA settlement. (Cofinco Decl. ¶ 14.) Zero (0) Settlement Class Members objected to the Agreement. (Cofinco Decl. ¶ 11.) Only one (1) Settlement Class Member requested exclusion. (Cofinco Decl. ¶ 13.) 1,079 members of the 1,080-member class are participating in the settlement, which represents a 99.91% participation rate. (Cofinco Decl. ¶ 15.)
The average individual settlement payment is approximately $122.80. (Cofinco Decl. ¶ 15.) The highest individual settlement payment is $1,451.39. (Cofinco Decl. ¶ 15.)
Evaluation of Settlement
Before granting final approval, the court must evaluate the fairness of the proposed settlement and independently assess the reasonableness of the settlement’s terms. (Cal. Rules of Court, Rule 3.769(g); Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130, 133.) The proponent of the settlement bears the burden of establishing the settlement’s fairness and reasonableness. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245; see also 7-Eleven Owners for Fair Franchising v. The Southland Corp. (2000) 85 Cal.App.4th 1135, 1165-66.)
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, supra, 91 Cal.App.4th at 245, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802.) Even if a presumption of fairness exists, the court still must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interest of those whose claims will be extinguished.” (Kullar, supra, 168 Cal.App.4th at 130.) The following factors guide the court’s determination:
[T]he trial court should consider relevant factors, such as the strength of plaintiffs’ 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. The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.
(Wershba, supra, 91 Cal.App.4th at 244-245.)
Of the relevant factors, the most important is the strength of the plaintiff’s case on the merits balanced against the amount offered in settlement. (Kullar, supra, 168 Cal.App.4th at 130.) In considering the amount offered, the court is mindful that compromise is inherent and necessary in the settlement process. (Wershba, supra, 91 Cal.App.4th at 250.)
The Court finds that the settlement is fair, adequate, and reasonable based on the following:
The Settlement resulted from thorough, arms’ length negotiations between experienced counsel with the assistance of a highly-regard mediator, Joel Grossman. (Leviant Decl. ¶ 7-10.) The participation of a neutral mediator in settlement negotiations implies that the proceedings were free of collusion or undue pressure, i.e., such mediation is presumptively arms-length negotiation. (Cf. D’Amato v. Deutsche Bank (2nd. Cir. 2001) 236 F.3d 78, 85.)
The settlement followed extensive informal discovery, with Defendants providing all applicable versions of Defendants’ personnel and payroll policies, records relating to employees’ hours worked and wages paid, and data pertaining to Plaintiffs and the Settlement Class during the relevant Settlement Period, including but not limited to the numbers of former and current members of each purported subclass within the Settlement Class, average workweeks, and average rate of hourly pay. (Prelim. App. Leviant Decl. ¶ 5, 13, 15.)
Class counsel has extensive experience in wage-related class actions. (Prelim. App. Leviant Decl. ¶ 21-26.)
There has been no objection to the settlement and only 1 of the 1,080-member class requested to be excluded. (Cofinco Decl. ¶ 13.)
Based on this evidence, the Court finds a presumption of fairness for the settlement.
Further, as noted in this Court’s order preliminarily approving the class action settlement, the Settlement was reached after evaluating the Parties’ theories of potential exposure for the underlying claims and Plaintiffs’ claims for interest and penalties, and after Defendants’ financial condition was taken into account, as Defendants were in the process of closing several locations due to financial non-viability. (Prelim. App. Leviant Decl. ¶ 8.) Moreover, further litigation carried substantial risks, including those related to the outcome of certification, possible summary judgment efforts, and the risk that arbitration agreements would preclude any class-wide resolution. (Prelim. App. Leviant Decl. ¶ 13, 16.)
Based on the risks of establishing the case on the merits, the risk of non-certification, the risk that arbitration agreements would preclude any class-wide resolution, and Defendants’ financial condition, the amount offered in settlement is reasonable. The Parties agree to settle for a total of $285,000.00, with no reversion to Defendant. From this, Defendant has agreed to pay $24,000 as PAGA penalties, with 75% ($18,000.00) allocated to the LWDA and the remaining 25% ($6,000.00) distributed to the class. The settlement further provides a service award of $6,000.00 to Plaintiff Saunders and $3,000.00 for each of Plaintiffs Slezak, Yi, and Schalk. Settlement Administrator costs of $15,500.00 and attorney fees and costs are also accounted for in the gross settlement amount, while Defendants’ portion of payroll taxes owed on any settlement payments to Settlement Class Members that constitute wages are not included, as they will be separately paid.
Based on the foregoing, the Court finds that the settlement is fair, adequate and reasonable in light of the risks involved in the litigation, the recommendation of the class counsel, and the class members’ positive reaction to the settlement.
California law finds that when class action litigation establishes a monetary fund for the benefit of the class members, the trial court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 503.) This allows for a relative ease of calculation, an alignment of incentives between counsel and the class, a better approximation of market conditions in a contingency case, and the encouragement to seek an early settlement and avoid unnecessarily prolongment of the litigation. (Id.)
Plaintiffs seek attorneys’ fees of $95,000.00 and actual litigation costs of $7,900.27. The Court granted preliminary approval of these amounts on September 26, 2019, when it granted Plaintiffs’ application for preliminary approval of settlement.
The requested attorneys’ fees award is 1/3 of the $285,000.00 settlement amount. The amount requested in costs, $7,900.27 is less than the $12,000.00 maximum cost allocation stipulated to by the parties in Settlement. Here, no Class Member objected to the settlement, to the attorney fee award based on 1/3 of the settlement award, or the costs allocation. Further, the remaining funds allocated to the payment of costs will be distributed amongst the Class Members.
Based on the foregoing, the Court finds that the requested amount of attorneys’ fees and costs is reasonable and grants the fee request.
The Motion for Final Approval of Class Action Settlement is GRANTED.
Moving party to give notice.