2016-00190795-CU-OE

Bryan Blithe vs. A&A Concrete Supply, Inc.

Nature of Proceeding: Motion for Preliminary Approval of Class Settlement

Filed By: Hague, Jared

The Parties’ Joint Motion for Preliminary Approval of Class Action Settlement is unopposed and is GRANTED. C.C.P., sec. 382, California Rules of Court, Rule 3.769.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for the remaining Parties forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If counsel for moving party is unable to contact the other counsel prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event any party appears without following the procedures set forth in Local Rule 1.06(B).

By this motion, Plaintiff class counsel requests that the Court (1) provisionally and conditionally certify the proposed settlement class; (2) grant preliminary and conditional approval of the proposed settlement; (3) establish the procedure for putative Class Members to receive a Settlement Share or opt out; (4) set the timing for and direct distribution to the class of (a) the Notice of Proposed Settlement, Preliminary Approval of Settlement, and Hearing Date for Final Court Approval and (b) the proposed forms of Class Member Settlement Information Sheet and Election Not to Participate; and, (4) adopt the implementation schedule contained in the proposed order and schedule a final approval hearing.

The Court is requested to preliminary certify this matter as a class action, on behalf of “all current and former current and former hourly non-exempt drivers, other than Ready Mix drivers, who work or have worked for A&A in California at any time from February 22, 2012, through the date on which the Court grants preliminary approval of the Settlement.”

Plaintiff Bryan Blithe, individually and on behalf of all other similarly situated, filed his complaint in this action on February 22, 2016, alleging 11 causes of action: (1) failure to pay overtime wages; (2) failure to provide meal period or additional wages in lieu thereof; (3) failure to issue accurate wage statements; (4) unfair competition under Business & Professions Code § 17200; (5) civil penalties for failure to pay overtime; (6) civil penalties for failure to provide meal periods; (7) civil penalties for failure to issue itemized wage statements; (8) civil penalties for failure to pay wages due and payable twice each calendar month; (9) civil penalties for failure to pay wages due upon demand; (10) civil penalties for failure to issue notice of pay; and, (11) civil penalties for failure to pay wages due upon termination.

The Court concludes that the settlement class satisfies the requirements of

numerosity, commonality and typicality. Plaintiffs are adequately represented by Plaintiff Blithe, and class counsel S. Brett Sutton and Jared Hague. It appears to the Court that common questions of fact and law predominate over individual questions in this action for purposes of settlement. The superiority requirement for class certification also has been satisfied. As set out herein, the court conditionally certifies the class as set forth in the Settlement Agreement.

Based on the briefs before the Court it appears the Parties have engaged in extensive discovery and investigation, as well as inspections and analysis. The putative class at the time of settlement comprises approximately 55 class members. According to the information before the Court, the proposed settlement is the result of several rounds of extensive arms-length negotiations between the Parties’ respective counsel, as well as a mediation conducted on August 29, 2017, and the Parties now seek Court approval.

The essential settlement terms are as follows:

(1) Defendant shall pay a Total Settlement Amount (TSA) of $375,000.00 to settl all claims of the Plaintiff Class. The TSA is all-inclusive and comprises following: (1) all Settlement Shares to Class Members; (b) Defendant’s shar any payroll taxes applicable to the Settlement Shares; (c) the LWDA Paym

(d) the Class Representative Service Payment; € the Class Counsel Fees Expenses; and (f) the Settlement Administrator’s fees and expenses. Parties agree that any amounts over and above the TSSA are not Defenda responsibility. ////Under the terms of the Agreement, Defendant shall pay no than 40% of the Net Settlement Amount; the Net Settlement Amount is defi as the MSA less attorney fees and costs, class representative enhancem payment, claims administrators fees, payment to the California LWDA payroll taxes. Should the class members claim less than 40 % of the Settlement amount, the remaining amount up to the 40% threshold shall redistributed pro rate to participating class members, such that Defendant in case will pay less than 40% of the Net Settlement Amount to the Class.

(2) All Class Members, except those who elect not to participate in the Plainti Class, will be allocated Settlement Shares, as calculated by the terms of Settlement Agreement (see Agreement p. 5). Thirty-three percent of e Settlement Share is intended to settle each Class Member’s Claim for un wages. The Wage Portion shall be reduced by applicable payroll withholding and deductions; the Settlement Administrator shall is corresponding W-2 forms as to the wage portion for each participating C Member. Sixty-seven percent of the Settlement Share to each Class Membe allocated as compensation and settlement for interest, penalties and liquid damages and shall not be reduced by payroll tax withholdings and deducti the Settlement Administrator shall issue 1099 Form with respect to the N Wage Portion of the Settlement Share.

(3) Plaintiff will apply to the Court for an LWDA Payment of $7,500.00.
(4) Attorney fees and costs shall not exceed $140,000.00. This amount is based o a payment of no more than $125,000.00 to counsel for fees (which approximately one-third of the TSA amount of $375,000.00) and no more t $15,000.00 for actually documented litigation expenses. The Settlem Administrator shall remit payment for fees and costs to Class Counsel u counsel’s completion of a Form W-9.

(5) Costs of administration of the Settlement are estimated at $5,500.00, to be pai to the Settlement Administrator.

(6) Plaintiff Bryan Blithe to be paid a Class Representative Service Payment of n more than $7,500.00 in addition to any amount to which he may receive u the terms of the Settlement Agreement.

The trial court has broad authority to determine whether a proposed settlement of a class action is fair. (Rebney v. Wells Fargo Bank(1990) 200 Cal.App.3d 1117, 1138..) To prevent fraud, collusion or unfairness to the class, the settlement or dismissal of a class action requires court approval. (Malibu Outrigger Bd. of Governors v. Superior Court (1980) 103 Cal.App.3d 573, 578-579.)

In reviewing a request for preliminary approval of a class action settlement, the Court’s task is to determine whether the proposed settlement is within the range of reasonableness that would warrant sending out a notice of the settlement and giving the class members the opportunity to object. (Wershba v. Apple Computer(2001) 91 Cal.App.4th 224, 244, 245; Newberg on Class Actions, 3d Ed. (1992) § 11.25.) In making its fairness determination, the Court must consider the relevant factors, such as the strength of the Plaintiffs’ case, the risk, expenses and 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, and the experience and view of counsel. (Dunk v. Ford Motor Co.(1996)
48 Cal.App.4th 1794, 1801.)

The Court hereby grants preliminary approval of the Settlement and Notice provisions.

The Court further finds settlement of the PAGA claims is reasonable.

Phoenix Settlement Administrators is appointed as Settlement Administrator.

The final settlement approval date shall be scheduled for July 13, 2018, or such later date as is necessary for the administrator and counsel.

The Court will sign the formal order submitted.