Case Name: Livier Soriano v. Flagship Facility Services, Inc., et al.
Case No.: 17-CV-316438

This is a putative wage and hour class action on behalf of employees of defendant Flagship Facility Services, Inc. Before the Court is plaintiff’s renewed motion for preliminary approval of a settlement. Also at issue are two motions to intervene by plaintiffs in related wage and hour actions against Flagship, (1) Ceron de Orozco v. Flagship Facility Services, Inc. (Super. Ct. San Diego County, No. 37-2018-00040481-CU-OE-CTL) and (2) Gonzales v. Flagship Facility Services, Inc. (Super. Ct. Santa Clara County, No. 17-CV-316313).

The parties oppose the motions to intervene, and Ceron (but not Gonzales) continues to oppose the motion for preliminary approval.

I. Factual and Procedural Background

Flagship provides janitorial services to clients throughout California. (Complaint, ¶ 9.) Plaintiff alleges that on or about September 1, 2016, she was hired to work for defendant as a non-exempt janitor and “was assigned to Defendant’s client proprieties to perform janitorial services.” (Id. at ¶ 8.) Plaintiff “last worked for Defendant on or about February 8, 2017.” (Ibid.)

Plaintiff alleges that she and other class members were not paid for mandatory onboard training, which lasted a number of hours. (Complaint, ¶ 20.) In addition, plaintiff and other class members were “temporary service employee[s], as defined by California Labor Code § 201.3,” but were paid on a biweekly basis rather than the weekly basis required by that section. (Ibid.) Finally, class members received wage statements that inaccurately failed to reflect their onboard training. (Ibid.)

Plaintiff filed this action on September 28, 2017 on behalf of a putative “Training Time Class” of California non-exempt employees who attended any training and/or onboarding sessions from September 28, 2013 to the present and a “Temporary Service Employee Class” of California non-exempt employees who were assigned to defendant’s customer’s facilities and were paid on a biweekly and/or bimonthly basis from September 28, 2014 to the present. She asserts claims for (1) violation of Labor Code section 226 by failing to provide accurate itemized wage statements; (2) violation of Labor Code sections 1194, 1197, and 1197.1 by failing to pay minimum wages for all hours worked; (3) violation of Labor Code sections 201.3 and 203 by failing to pay temporary service employees on a weekly basis; (4) violation of Labor Code section 2698 et seq. (the Private Attorneys General Act or “PAGA”); and (5) violations of Business & Professions Code section 17200 et seq. (the “UCL”).

Flagship demurred to the third cause of action on the ground that, because plaintiff worked for a single client during her employment with defendant, an exception to section 201.3’s weekly pay requirement applies to her claim under that section. On December 27, 2017, the Court overruled Flagship’s demurrer, finding that the complaint did not allege that plaintiff worked for only one client, and Flagship subsequently answered the complaint.

The parties reached a settlement, and plaintiff filed a motion for preliminary approval on September 26, 2018. On October 9, Ceron and Gonzales filed motions to intervene. They urged that the release of claims executed by the parties improperly exceeded the scope of Soriano’s complaint and encompassed claims asserted in their own respective actions, along with raising other objections to the parties’ settlement. Ceron and Gonzales also filed oppositions to plaintiff’s original motion for preliminary approval.

Following oral argument on November 2, 2018, the Court issued an order denying preliminary approval without prejudice and continuing the motions to intervene. The Court agreed with the would-be-intervenors that the original release encompassed wage and hour claims beyond the scope of this action, and directed the parties to either narrow the release or address the value of the released claims beyond those alleged in the complaint. In addition, the Court noted other issues to be addressed in any renewed motion for preliminary approval. As to Ceron and Gonzales’s motions, the Court found that intervention was generally appropriate considering the breadth of the proposed release, but that Ceron and Gonzales had not filed appropriately tailored complaints-in-intervention. It accordingly continued their motions to enable them to file amended pleadings. Finally, the Court denied Gonzales’s request for a stay to enable him to conduct discovery regarding the settlement.

In response to the Court’s order, the parties amended their settlement agreement, including by narrowing the release. Gonzales indicated that he would no longer seek intervention in light of the revised release. However, Ceron continues to oppose the amended settlement and maintains that the release remains overbroad. She filed a revised complaint-in-intervention on December 21, 2018. On January 16, 2019, plaintiff filed a renewed motion for preliminary approval of the parties’ amended settlement.

II. Motions to Intervene

While it appears that Gonzales no longer seeks to intervene, both his and Ceron’s motions for leave to intervene remain unresolved and have again come on for hearing by the Court. The parties oppose these motions.

As an initial matter, Ceron’s counsel filed a supplemental declaration supporting her motion to intervene on December 21, 2018. Plaintiff filed a supplemental opposition to her motion on January 16, 2019, and Ceron filed a motion to strike or, alternatively, a response to the supplemental opposition on January 31. While none of these filings were expressly authorized by its prior order, the Court will consider all of them. Ceron’s motion to strike plaintiff’s supplemental opposition is DENIED.

A. Legal Standard

Intervention is governed by California Code of Civil Procedure section 387. Under subdivision (d)(1)’s mandatory terms, the Court “shall” permit intervention where the proposed intervenor demonstrates in a “timely application” that “[a] provision of law confers an unconditional right to intervene” or “[t]he person seeking intervention claims an interest relating to the property or transaction that is the subject of the action and that person is so situated that the disposition of the action may impair or impede that person’s ability to protect that interest, unless that person’s interest is adequately represented by one or more of the existing parties.” (See Code Civ. Proc., § 387, subd. (d)(1).) Where the would-be intervenor “meets the qualifications for mandatory intervention…, the fact that such intervention would add to the complexity of the action, create delay or adversely affect the original parties is of no moment.” (California Physicians’ Service v. Superior Court (Gilmore) (1980) 102 Cal.App.3d 91, 96.)

Subdivision (d)(2) pertains to permissive intervention. “[F]or permissive intervention, three factors must be established: ‘The intervenor must have a direct interest in the lawsuit, the intervenor must not enlarge the issues raised by the original parties, and the intervenor must not tread on the rights of the original parties to conduct their own lawsuit.’ ” (Lincoln National Life Ins. Co. v. State Bd. of Equalization (1994) 30 Cal.App.4th 1411, 1422, footnote omitted.) “[T]he intervener’s interest in the litigation must be direct and immediate rather than consequential, the issues must not be enlarged by the intervention and the reasons for intervention must outweigh the rights of the original parties to litigate in their own way.” (California Physicians’ Service v. Superior Court, supra, 102 Cal.App.3d at pp. 95-96.) “One cardinal rule which is established by the cases is that an intervener’s interest must be more direct and immediate than that of a simple creditor of one of the parties.” (Ibid.)

“[C]ourts have recognized California Code of Civil Procedure section 387 should be liberally construed in favor of intervention.” (Lincoln National Life Ins. Co. v. State Bd. of Equalization, supra, 30 Cal.App.4th at p. 1423.) “The purpose of allowing intervention is to protect others potentially affected by a judgment, thus obviating delay and multiplicity of suits.” (Catello v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1013.)

B. Analysis

The Ceron and Gonzales actions, like this one, are PAGA and putative wage and hour class actions by employees of Flagship, but they arise from different violations than those alleged here. Ceron, filed on August 13, 2018, alleges a PAGA claim and claims under the Labor Code arising from defendant’s alleged requirement that employees remain on duty during their entire 8 ½ hour shifts, including meal and rest breaks. Ceron alleges that Flagship required employees to be on call during their breaks, failed to reimburse them for expenses related to required cell phone use, and failed to compensate employees for time spent renewing their identification badges. Similarly, Gonzales, filed on September 26, 2017, alleges a PAGA claim and Labor Code claims arising from defendant’s alleged failure to compensate employees for “missed and/or interrupted meal and rest periods.” In his moving papers, Gonzales explained that his minimum wage and overtime claims seek recovery for “off-the-clock work, including time spent on-call and time spent working through breaks.”

In its prior order, the Court found that the release of claims in the original settlement exceeded the scope of plaintiff’s complaint and was arguably broad enough to encompass claims alleged by Ceron and Gonzales, creating a substantial probability of interference with their prosecution of their own lawsuits. It consequently found that permissive intervention would be appropriate so long as appropriately tailored complaints-in-intervention were filed. However, the release in the amended settlement is tailored to the claims in this action, as it limited to

any and all claims pled or that could have been pled in the Soriano action arising from Plaintiff’s allegations that Defendant failed to pay wages for time spent by non-exempt employees in on-boarding training sessions, and that Defendant failed to pay its employees on a weekly basis pursuant to Labor Code § 201.3. Released Claims also include all underlying statutory provisions of the California Labor Code identified in the Soriano action, including Labor Code §§ 201.3, 203, 226(a), 510, 1194, 1197, 1197.1, and 2698, et seq., the Private Attorneys General Act (the “PAGA”) and claims under Business & Professions Code § 17200 et seq., as well as any and all derivative penalty claims, including but not limited to waiting time penalty claims, based on Defendant’s failure to pay wages for time spent by nonexempt employees in on-boarding training sessions and failure to pay its employees on a weekly basis pursuant to Labor Code § 201.3. Released Claims shall also include claims of any and every nature based on off-the-clock work, minimum wage, overtime, paycheck-related claims, wage statement claims, and Wage Order claims arising from Defendant’s alleged failure to pay wages for on-boarding/training time. The release shall include all entities named in the complaint in the Soriano Action and all of their parent, subsidiary, affiliated and related companies and entities, and all of their officers, directors, employees, and agents. The release period is [the] Settlement Class Period [(September 10, 2015 through May 31, 2017)].

Further, the settlement class is now more clearly defined to encompass

all persons who were hired, or rehired following a separation of employment, by Defendant as a non-exempt (hourly) employee in California during the Settlement Class Period and who attended at least one on-boarding and/or training session during the Settlement Class Period, except for individuals who have waived, released and/or recovered monies upon the claims or any of the claims, in whole or in part, released in this Settlement.

Consequently, as apparently acknowledged by Gonzales, the settlement in this action no longer threatens to interfere with the would-be-intervenors’ own lawsuits.

Ceron does not appear to contend that the release would apply to her individual claims, but continues to urge that the settlement class includes employees who are members of the class she seeks to represent. She argues that the release should not include overtime claims, since no such claims were alleged in the complaint, and that the release period should include only the single pay period when putative class members’ onboard training occurred. Without explanation, she claims that current employees “cannot release their Labor Code section 203 claims” for waiting time penalties. She also misconstrues the release as encompassing “all claims arising from off the clock work” and “claims up to the date of Final Approval of the Settlement.”

Ceron’s argument ignores that plaintiff asserts not only claims arising from unpaid onboard training, but claims for violations of Labor Code section 201.3’s weekly pay requirement. Contrary to her characterization, the amended release is properly limited to claims arising from these theories—while it includes causes of action, such as overtime violations, that were not specifically alleged in plaintiff’s complaint, Ceron provides no authority or reasoning supporting the proposition that this common practice is improper.

Fundamentally, Ceron’s arguments do not establish that she “claims an interest relating to the property or transaction that is the subject of the action and … is so situated that the disposition of the action may impair or impede [her] ability to protect that interest,” as required to qualify for mandatory intervention. (See Code Civ. Proc., § 387, subd. (d)(1).) Nor do they show that Ceron has a direct interest in this action or that there is a substantial probability her own case will be affected, as required for permissive intervention. (See Lincoln National Life Ins. Co. v. State Bd. of Equalization, supra, 30 Cal.App.4th at p. 1422; Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 881.)

Finally, despite being permitted a second opportunity to do so, Ceron still has not filed an appropriately tailored complaint-in-intervention. Her revised pleading continues to re-assert many of the claims alleged in her own lawsuit, which are based on Flagship’s alleged practices of requiring employees to be on call during their breaks, failing to reimburse them for expenses related to required cell phone use, and failing to compensate employees for time spent renewing their identification badges. These alleged facts and theories are not at issue in the present action, and permitting Ceron to file a complaint-in-intervention including them would enlarge the issues in the case.

C. Conclusion and Order

For the reasons discussed above, the motions for leave to intervene are DENIED.

III. Motion for Preliminary Approval

Plaintiff moves for an order preliminarily approving the settlement, provisionally certifying the settlement class, approving the form and method for providing notice to the class, and scheduling a final fairness hearing.

Plaintiff’s request for judicial notice of a stipulation of settlement that was executed by Ceron’s counsel several years ago in an unrelated action is DENIED, as the stipulation is not relevant to the issues at hand. (See Aquila, Inc. v. Superior Court (City and County of San Francisco) (2007) 148 Cal.App.4th 556, 569 [although a court may judicially notice a variety of matters, only relevant material may be noticed].)

A. Legal Standard for Approving a Class Action/PAGA Settlement

Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, disapproved of on other grounds by Hernandez v. Restoration Hardware, Inc. (2018) 4 Cal.5th 260.)

In determining whether a class settlement is fair, adequate and reasonable, the 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.

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, internal citations and quotations omitted.)

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 v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement 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.” (Ibid., quoting Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, internal quotation marks omitted.)

The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement is reached through arm’s-length bargaining; (2) investigation and discovery are sufficient to allow counsel and the court to act intelligently; (3) counsel is experienced in similar litigation; and (4) the percentage of objectors is small.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to “give rubber-stamp approval” to a settlement; in all cases, it must “independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished,” based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.)

Finally, Labor Code section 2699, subdivision (l) provides that “[t]he superior court shall review and approve any penalties sought as part of a proposed settlement agreement pursuant to” PAGA. 75 percent of any penalties recovered under PAGA go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining 25 percent for the aggrieved employees. (Iskanian v. CLS Transp. Los Angeles, LLC, supra, 59 Cal.4th at p. 380.) “[T]here is no requirement that the Court certify a PAGA claim for representative treatment” as in a class action. (Villalobos v. Calandri Sonrise Farm LP (C.D. Cal., July 22, 2015, No. CV122615PSGJEMX) 2015 WL 12732709, at *5.) “[W]hen a PAGA claim is settled, the relief provided … [should] be genuine and meaningful, consistent with the underlying purpose of the statute to benefit the public ….” (Id. at *13.) The settlement must be reasonable in light of the potential verdict value (see O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1135 [rejecting settlement of less than one percent of the potential verdict]); however, it may be substantially discounted given that courts often exercise their discretion to award PAGA penalties below the statutory maximum even where a claim succeeds a trial (see Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8-9).

B. Settlement Process

According to a declaration by plaintiff’s counsel filed in support of her original motion for preliminary approval, the parties agreed to attempt mediation after defendant’s demurrer to the third cause of action was overruled. Defendant agreed to produce classwide data showing the number of putative class members, their rates of pay, their employment dates, any payments they received for onboarding time, and their client assignments, including the length of the assignments.

Plaintiff discovered that defendant began paying employees for their onboarding time as of June 1, 2017. Defendant’s data also showed that many employees were assigned to client facilities for periods of 90 days and, consequently, an exemption to the weekly pay requirement applied to many class members.

On June 25, 2018, the parties held a mediation with Steven Serratore, Esq. and reached a settlement in the amount of $1.4 million. After plaintiff’s original motion for preliminary approval was denied, they executed an amended settlement agreement with a narrower release of claims, along with a revised class definition and allocation of the net settlement to class members.

C. Provisions of the Amended Settlement

The non-reversionary $1.4 million settlement includes a $10,500 payment to the California Labor and Workforce Development Agency associated with plaintiff’s PAGA claim (seventy-five percent of the $14,000 allocated to PAGA penalties). Attorney fees of up to $466,666.67 (one-third of the gross settlement), litigation costs not to exceed $25,000, and administration costs not to exceed $22,000 will also be paid from the gross settlement. The named plaintiff will seek an enhancement award of $10,000.

The amended settlement provides that two-thirds of the net settlement shall be allocated to the onboarding claims (the “Onboarding Settlement Fund”) and one-third shall be allocated to the Labor Code section 201.3 claims (the “Weekly Pay Settlement Fund”). As to the Onboarding Settlement Fund, participating class members whose employment was terminated as of the last date of the Settlement Class Period shall receive two credits and all other participating class members shall receive one credit. The fund will then be distributed to class members pro rata based on their credits. The Weekly Pay Settlement Fund will be distributed based on class members’ eligible pay periods.

The net settlement will be allocated 10 percent as wages and 90 percent as interest and penalties. Class members will not be required to submit a claim to receive their payments. Flagship will pay the employer’s share of payroll taxes. Funds associated with checks uncashed after 90 days will be paid to Goodwill of Silicon Valley, Employment Readiness Program.

Class members who do not opt out of the settlement will release wage and hour claims arising from the two theories asserted in the complaint, as stated above.

D. Fairness of the Settlement

The primary reason that the Court denied plaintiff’s original motion for preliminary approval was the overbreadth of the release included in the original settlement agreement. As discussed above, the amended settlement agreement now before the Court includes an appropriately tailored release. While Ceron continues to argue that the release is inappropriate, her arguments lack merit for the reasons already discussed.

With regard to the settlement consideration, plaintiff’s counsel declares that there are approximately 3,168 individuals in the putative class. He estimates that the claims for unpaid wages associated with onboarding time are worth $148,262.40 plus waiting time penalties of $3,202,524 for the approximately 2,281 former employees. These estimates assume that all class members were required to attend the maximum 3 hours of training. Counsel estimates that the PAGA penalties associated with Flagship’s alleged failure to pay temporary employees on a weekly basis could total up to $1,459,710, excluding the 65 percent of pay periods associated with assignments of over 90 days. The gross settlement of $1.4 million thus represents around 30 percent of the total maximum liability estimated by plaintiff’s counsel. After accounting for the deductions summarized above, the net recovery of $865,834 is worth around $273 per class member.

Notably, counsel indicates that there were approximately 3,825 employees who may have experienced weekly pay violations, although this figure includes pay periods potentially subject to the 90-day exception to Labor Code section 201.3. However, only individuals who were onboarded during the class period are included in the settlement class. Thus, although their claims will not be released, there are potentially several hundred individuals whose section 201.3 claims will be dismissed without consideration as a result of the settlement. Plaintiff explains that the class was defined to exclude these individuals in an effort to provide the majority of the class with a monetary benefit for their section 201.3 claims, “while also providing Defendant with an appropriate release, and to process this settlement efficiently with one single settlement class ….” At least for purposes of preliminary approval, the Court finds that this approach is not unreasonable, and it is inclined to find that no notice to these individuals is required. However, prior to the hearing on this matter, plaintiff’s counsel must submit a supplemental declaration supporting the proposed dismissal of these individuals from the class pursuant to California Rules of Court, rule 3.770.

In addition, the Court’s prior order directed plaintiff to address the estimated PAGA penalties associated with the claims for unpaid onboarding time, but she has not done so. Plaintiff’s counsel shall address this issue in his supplemental declaration. Plaintiff’s counsel shall also address Ceron’s argument that waiting time penalties on the weekly pay claim should be included in plaintiff’s valuation of the case.

Assuming that these issues are satisfactorily addressed prior to the hearing, the Court is inclined to find that the settlement is fair and reasonable to the class. Consistent with the higher value and likelihood of recovery associated with the onboarding claims, two-thirds of the settlement is allocated to those claims. The less valuable and certain section 201.3 claims receive a smaller allocation but provide some additional compensation to participating class members. The relatively small portion of the putative class as defined by the complaint who will not receive compensation for the section 201.3 claims will be excluded from the settlement class and will not release these claims. Finally, the Court is inclined to find that the PAGA allocation is genuine, meaningful, and reasonable.

The Court retains an independent right and responsibility to review the requested attorney fees and award only so much as it determines to be reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) While 1/3 of the common fund for attorney fees is generally considered reasonable, counsel shall submit lodestar information prior to the final approval hearing in this matter so the Court can compare the lodestar information with the requested fees. (See Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 504 [trial courts have discretion to double-check the reasonableness of a percentage fee through a lodestar calculation].)

E. Proposed Settlement Class

Plaintiff requests that the following settlement class be provisionally certified:

all persons who were hired, or rehired following a separation of employment, by Defendant as a non-exempt (hourly) employee in California during the Settlement Class Period and who attended at least one on-boarding and/or training session during the Settlement Class Period, except for individuals who have waived, released and/or recovered monies upon the claims or any of the claims, in whole or in part, released in this Settlement.

The Settlement Class Period is defined as the period from September 10, 2015 through May 31, 2017.

1. Legal Standard for Certifying a Class for Settlement Purposes

Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “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 ….” As interpreted by the California Supreme Court, Section 382 requires the plaintiff to demonstrate by a preponderance of the evidence (1) an ascertainable class and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, 332.)

The “community-of-interest” requirement encompasses three factors: (1) predominant 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. (Ibid.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (Botney) (1976) 18 Cal.3d 381, 385.)

In the settlement context, “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.” (Luckey v. Superior Court (Cotton On USA, Inc.) (2014) 228 Cal.App.4th 81, 93.) As no trial is anticipated in the settlement-only context, the case management issues inherent in the ascertainable class determination need not be confronted, and the court’s review is more lenient in this respect. (Id. at pp. 93-94.) However, considerations designed to protect absentees by blocking unwarranted or overbroad class definitions require heightened scrutiny in the settlement-only class context, since the court will lack the usual opportunity to adjust the class as proceedings unfold. (Id. at p. 94.)

2. Ascertainable Class

“The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members.” (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) “Class members are ‘ascertainable’ where they may be readily identified without unreasonable expense or time by reference to official records.” (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.)

Here, the parties have already identified the 3,168 putative class members based on defendant’s records. The amended class definition is clear and appropriate, and the amended release period now corresponds to the class period. Plaintiff explains that the class period corresponds to the time period when Flagship failed to compensate employees for onboarding time, which it began to provide compensation for in June of 2017.

The amended settlement class is thus numerous, ascertainable, and appropriately defined.

3. Community of Interest

With respect to the first community of interest factor, “[i]n order to determine whether common questions of fact predominate the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged.” (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) The court must also give due weight to any evidence of a conflict of interest among the proposed class members. (See J.P. Morgan & Co., Inc. v. Superior Court (Heliotrope General, Inc.) (2003) 113 Cal.App.4th 195, 215.) The ultimate question is whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1104-1105.) “As a general rule if the defendant’s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages.” (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.)

Here, common legal and factual issues predominate. Plaintiff’s claims all arise from defendant’s wage and hour practices applied to the similarly-situated class members, and the settlement fund is fairly allocated among class members based on their relevant circumstances.

As to the second factor,

The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative’s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained.

(Medrazo v. Honda of North Hollywood (2008) 166 Cal. App. 4th 89, 99, internal citations, brackets, and quotation marks omitted.)

Like other members of the class, plaintiff was required to attend uncompensated onboard training and was paid on a biweekly rather than a weekly basis. The anticipated defenses are not unique to plaintiff, and there is no indication that plaintiff’s interests are otherwise in conflict with those of the class. The Court is not persuaded by Ceron and Gonzales’s argument that plaintiff’s intent to request a $10,000 incentive payment creates a conflict between her and the class.

Finally, adequacy of representation “depends on whether the plaintiff’s attorney is qualified to conduct the proposed litigation and the plaintiff’s interests are not antagonistic to the interests of the class.” (McGhee v. Bank of America (1976) 60 Cal.App.3d 442, 450.) The class representative does not necessarily have to incur all of the damages suffered by each different class member in order to provide adequate representation to the class. (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 238.) “Differences in individual class members’ proof of damages [are] not fatal to class certification. Only a conflict that goes to the very subject matter of the litigation will defeat a party’s claim of representative status.” (Ibid., internal citations and quotation marks omitted.)

Plaintiff has the same interest in maintaining this action as any class member would have. Further, she has hired experienced counsel. Again, Ceron and Gonzale’s argument that plaintiff’s counsel has a conflict with the class lacks merit. The Court is unaware of any authority suggesting that plaintiff’s counsel cannot represent employers in wage and hour actions without creating a conflict in representing plaintiffs in unrelated actions. In short, plaintiff has sufficiently demonstrated adequacy of representation.

4. Substantial Benefits of Class Certification

“[A] class action should not be certified unless substantial benefits accrue both to litigants and the courts. . . .” (Basurco v. 21st Century Ins. (2003) 108 Cal.App.4th 110, 120, internal quotation marks omitted.) The question is whether a class action would be superior to individual lawsuits. (Ibid.) “Thus, even if questions of law or fact predominate, the lack of superiority provides an alternative ground to deny class certification.” (Ibid.) Generally, “a class action is proper where it provides small claimants with a method of obtaining redress and when numerous parties suffer injury of insufficient size to warrant individual action.” (Id. at pp. 120-121, internal quotation marks omitted.)

Here, there are an estimated 3,168 members of the proposed class. It would be inefficient for the Court to hear and decide the same issues separately and repeatedly for each class member. Further, it would be cost prohibitive for each class member to file suit individually, as each member would have the potential for little to no monetary recovery. It is clear that a class action provides substantial benefits both to the litigants and the Court in this case, and the Court will thus provisionally certify the settlement class.

F. Notice

The content of a class notice is subject to court approval. (Cal. Rules of Court, rule 3.769(f).) “The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement.” (Ibid.) In determining the manner of the notice, the court must consider: “(1) The interests of the class; (2) The type of relief requested; (3) The stake of the individual class members; (4) The cost of notifying class members; (5) The resources of the parties; (6) The possible prejudice to class members who do not receive notice; and (7) The res judicata effect on class members.” (Cal. Rules of Court, rule 3.766(e).)

Here, the notice describes the lawsuit, explains the settlement, and instructs class members that they may opt out of the settlement or object. The notice is clear that class members may appear at the final fairness hearing to make an objection without submitting a written objection. The gross settlement amount and estimated deductions are provided, along with the estimated payment per class member. Class members are instructed to provide documentation if they dispute their dates of employment as reflected on the notice. Class members are given 45 days to request exclusion from the class.

At the Court’s direction, plaintiff modified the notice to explain the two theories underlying the complaint rather than simply listing the wage and hour causes of action alleged. The amended notice also specifies the estimated administrative fees and provides the accurate, amended class definition. The deadlines for filing a written objection and disputing employment dates are provided. Finally, the parties have agreed that notice will be provided in English and Spanish.

Turning to the notice procedure, the parties have selected Simpluris, Inc. as the settlement administrator. The administrator will mail the notice packet within 15 business days of preliminary approval, after updating class members’ addresses using the National Change of Address database. Any notice packets returned as undeliverable will be re-mailed to any forwarding address provided or updated address located through skip tracing. Class members whose notices are re-mailed will have until at least 15 calendar days after re-mailing to respond. These notice procedures are appropriate, and are approved.

G. Conclusion and Order

Prior to the hearing on this matter if possible, plaintiff’s counsel shall file a supplemental declaration supporting the proposed dismissal of the individuals discussed above from the class pursuant to California Rules of Court, rule 3.770. The supplemental declaration shall also address the estimated PAGA penalties associated with the claims for unpaid onboarding time and the waiting time penalties associated with the weekly pay claims.

Assuming that plaintiff’s motion for preliminary approval is granted following the Court’s review of the supplemental declaration, the final approval hearing shall take place on July 19, 2019 at 9:00 a.m. in Dept. 1.

The following class will be provisionally certified for settlement purposes:
all persons who were hired, or rehired following a separation of employment, by Defendant as a non-exempt (hourly) employee in California during the Settlement Class Period (September 10, 2015 through May 31, 2017) and who attended at least one on-boarding and/or training session during the Settlement Class Period, except for individuals who have waived, released and/or recovered monies upon the claims or any of the claims, in whole or in part, released in this Settlement.

The Court will prepare the order.