Case Name: Shannon Sanchez v. Examination Management Services, Inc., et al.
Case No.: 17-CV-309248

This is a putative wage and hour class action on behalf of employees of defendant Examination Management Services, Inc. Before the Court is plaintiff’s motion for preliminary approval of a settlement.

I. Factual and Procedural Background

Defendant is a Nevada corporation doing business in California that provides medical examination and testing, medical record retrieval, and other services. (Class Action Complaint, ¶ 9.) In April 2016, it hired plaintiff to perform medical exams for various insurance applications. (Id. at ¶ 7.) She was compensated on a piece-rate basis. (Ibid.) Plaintiff alleges that Examination Management did not pay her and other putative class members for time spent working on non-piece-rate tasks. (Id. at ¶ 23.) She also alleges that class members did not receive compliant meal and rest breaks and were not reimbursed for the business expenses they incurred travelling to clients’ homes and other locations to perform exams using their personal vehicles. (Ibid.) Finally, plaintiff contends that defendant’s wage statements failed to identify the applicable rates of pay or rates/numbers for each piece rate wage; to provide defendant’s legal name; to indicate the total number of hours worked; and to state the applicate rates of pay for non-productive time. (Ibid.)

Based on these allegations, plaintiff asserts class claims for (1) failure to pay wages in violation of Labor Code sections 226.2, 1194, and 1197; (2) failure to pay overtime wages in violation of Labor Code sections 226.2 and 510; (3) failure to provide rest breaks in violation of Labor Code sections 226.2 and 226.7; (4) failure to provide meal periods in violation of Labor Code sections 226.7 and 512; (5) failure to provide compliant itemized wage statements in violation of Labor Code sections 226, subdivision (a) and 226.2; (6) failure to reimburse business expenses in violation of Labor Code section 2802; and (7) violations of Labor Code section 2698, et seq. (the Private Attorneys General Act or “PAGA”).

The parties have reached a settlement. Plaintiff now 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.

II. Legal Standards 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.)

In general, the most important factor is the strength of plaintiffs’ case on the merits, balanced against the amount offered in settlement. (See Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) Still, 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., supra, 168 Cal.App.4th at p. 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. Seventy-five percent of any penalties recovered under PAGA go to the Labor and Workforce Development Agency (“LWDA”), leaving the remaining twenty-five percent for the aggrieved employees. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 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 at trial (see Viceral v. Mistras Group, Inc. (N.D. Cal., Oct. 11, 2016, No. 15-CV-02198-EMC) 2016 WL 5907869, at *8-9).

III. Settlement Process

According to a declaration by plaintiff’s counsel, after this action was filed, the parties agreed to pursue mediation and defendant produced a large sample of data. The production included data regarding the number of appointments each putative class member worked each day, the total amount each putative class member was paid, and a sampling of the locations by zip code where appointments were located. Plaintiff estimated defendant’s total potential liability in the case as $2,690,000, based on a class size of 310.

The parties participated in a mediation with Joel Grossman and as a result, they reached the settlement before the Court.

IV. Provisions of the Settlement

The non-reversionary gross settlement amount is $400,000. Attorney fees of up to $133,000 (one-third of the gross settlement), litigation costs not to exceed $10,000, and administration costs of up to $10,000 will be paid from the gross settlement. $20,000 will be allocated to PAGA penalties, 75 percent of which will be paid to the LWDA. The named plaintiff will also seek an enhancement award of $10,000.

From the net settlement of approximately $217,000, participating class members will receive an average payment of $700, with payments calculated based on class members’ qualifying wage statements. Class members will not be required to submit a claim to receive their payments. Settlement awards will be allocated 1/3 to wages and 2/3 to interest and penalties, and both the employee’s and the employer’s share of payroll taxes will be paid from the gross settlement. Funds associated with checks uncashed after 180 days will be tendered to the California Unclaimed Wages Fund in the name of the class member.

Class members who do not opt out of the settlement will release all claims “encompassed in the Complaint or that were at issue in the Action, including any claims relating to or arising out of the alleged failure of Defendant to properly pay wages to Plaintiff and Class Members in compliance with California Law during the Class Period,” and also including several more specific wage and hour claims.

V. Fairness of the Settlement

Based on the class data provided by defendant, plaintiff estimates the potential liability in this action to be $2,690,000. The settlement thus represents about 15 percent of the potential value of the case.

Plaintiff submits that the settlement is fair and reasonable to the class based on the general risks of litigation. The Court agrees with this assessment, particularly considering the risk of a finding that individual issues preclude certification of the putative class in this case. It accordingly finds that the settlement is fair and reasonable to the class for purposes of preliminary approval. The Court also finds that the PAGA allocation provided by the settlement 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].)

VI. Proposed Settlement Class

Plaintiff requests that the following settlement class be provisionally certified:

EMSI’s current and former employees, regardless of specific title, who completed mobile drug screens, breath alcohol testing, clinical trial or insurance exams for EMSI’s clients and were paid on a per visit/per exam/per service basis in California any time from March 12, 2016 through September 15, 2018.

A. 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.)

B. 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 estimated 310 class members have already been identified based on defendant’s records, and the class is clearly defined. The Court finds that the class is numerous, ascertainable, and appropriately defined, with the exception that plaintiff does not explain why the class period extends only to March 12, 2016. Plaintiff shall address this issue in a supplemental declaration to be filed prior to the hearing on this matter if possible.

C. 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.

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 employed by defendant on a piece-rate basis and alleges that she did not receive minimum and overtime wages for work spent on other tasks, compliant wage statements and meal and rest breaks, and business expense reimbursements. 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.

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. Plaintiff has sufficiently demonstrated adequacy of representation.

D. 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 310 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 to both the litigants and the Court in this case.

VII. 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. Class members are instructed that they may appear at the final fairness hearing and make an oral objection even if they do not submit a written objection. The gross settlement amount and estimated deductions are provided, along with each class member’s estimated payment. Class members are informed of their qualifying wage statements as reflected in defendant’s records and instructed how to dispute this information. Class members are given 45 days to request exclusion from the class, dispute their wage statement information, or submit a written objection. The notice is adequate and is approved, with the exception that the release language must be modified to reflect the full release set forth in the settlement agreement.

Turning to the notice procedure, the parties have selected Phoenix Settlement Administration as the settlement administrator. The administrator will mail the notice packet within 10 calendar days of receiving the class data. Any notice packets returned as undeliverable will be re-mailed to any forwarding address provided or located through skip tracing.

The notice procedures are generally appropriate, but shall be modified to require the administrator to update class members’ addresses using the National Change of Address database before the initial mailing of the notices. With this modification, the notice procedures are approved.

VIII. Conclusion and Order

Prior to the hearing on this matter if possible, plaintiff shall submit a supplemental declaration explaining why the class period extends only to March 12, 2016, and addressing the procedure for dismissing the claims of putative class members included in the broader class definition proposed in the complaint. (See Cal. Rules of Court, rule 3.770.) Assuming that plaintiff’s motion for preliminary approval is granted, the final approval hearing shall take place on August 2, 2019 at 9:00 a.m. in Dept. 1.

The Court will prepare the order.