Lopez v. Utility Tree Service, LLC ( 2024 )

111 222 333 444 555 666 777 888 UNITED STATES DISTRICT COURT 999 SOUTHERN DISTRICT OF CALIFORNIA 111000 111111 FLORENTINO LOPEZ, individually, Case No.: 3:22-cv-01404-JES-DDL 111222 and on behalf of all others similarly situated, ORDER: 111333 Plaintiff, 1. CERTIFYING SETTLEMENT 111444 CLASS; vs. 2. FINALLY APPROVING 111555 PROPOSED SETTLEMENT; UTILITY TREE SERVICE, LLC, a 3. AWARDING FEES AND COSTS 111666 Pennsylvania Limited Liability TO CLASS COUNSEL; Company; and DOES 1 through 10, 4. AWARDING SERVICE 111777 inclusive, PAYMENTS TO PLAINTIFFS; AND, 111888 Defendant. 5. DIRECTING ENTRY OF JUDGMENT 111999 LUIS HERNANDEZ, individually, [ECF Nos. 53, 54] 222000 and on behalf of all others similarly situated, 222111 Plaintiff, 222222 vs. 222333 UTILITY TREE SERVICE, LLC, a 222444 Pennsylvania Limited Liability Company; and DOES 1 through 10, 222555 inclusive, 222666 Defendant. 222777 222888 111 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 222 Plaintiffs FLORENTINO LOPEZ and LUIS HERNANDEZ (“Plaintiffs”) and 333 Defendant Utility Tree Service, LLC (“Defendant”) have reached terms of settlement for a 444 putative class and Private Attorneys General Act (“PAGA”) representative action. 555 Plaintiffs have filed a motion for final approval of a class and representative action 666 settlement of the claims asserted against Defendant in this action, memorialized in the 777 Joint Stipulation of Class Action and PAGA Settlement and Release (“Settlement”) (see, 888 Declaration of Kane Moon in Support of Plaintiffs’ Motions for (1) Final Approval of 999 Class Action Settlement and (2) Award for Attorneys’ Fees and Costs, and Service 111000 Awards to Plaintiffs [“Moon Decl.”], at Exh. 1) with attached Exhibits, including the 111111 proposed form of Notice. In addition, Plaintiffs concurrently filed a motion for an award 111222 of fees, costs, and class representative enhancement awards, which was considered in 111333 conjunction with the motion for final approval. 111444 The Settlement between Plaintiffs and Defendant (together, “the Parties”) provides 111555 that the Parties stipulate to certification of a Class for settlement purposes only. The 111666 Settlement is conditioned upon, among other things, the Court’s approval. Capitalized 111777 terms in this Order shall have the same meaning as in the Settlement unless indicated 111888 otherwise. A summary of the terms of the Settlement is as follows: 111999 • Defendant stipulates to certification of a Settlement Class, to include all Class 222000 Members, for purposes of Settlement only. (Settlement, ¶ 78.) 222111 • The Class is: All persons who worked for Defendant in California as an hourly- 222222 paid, non-exempt employee at any time from February 15, 2020 to January 22, 222333 2024 (the “Class Period”). (Settlement, ¶¶ 5-6.) Excluded from the Settlement 222444 Class are all persons who properly and timely elect to opt out. (Settlement, ¶ 5.) 222555 • Defendant agrees that $850,000.00, known as the “Gross Settlement 222666 Amount,” plus the employer’s share of any payroll taxes related to the 222777 settlement payments, represents the maximum amount that it will pay out 222888 under the Settlement (Settlement, ¶ 13), inclusive of the following: (a) 111 settlement payments to Class Members who do not validly opt out 222 (Settlement, ¶ 14); (b) the maximum gross amount for Class Counsels’ 333 attorneys’ fees of $283,333.33 (Settlement, ¶ 3); (c) the maximum gross 444 amount for all of Class Counsels’ litigation costs and associated expenses, 555 which shall not exceed $25,000.00 (Settlement, ¶ 3); (d) the anticipated gross 666 amount for claims administration costs, estimated not to exceed $15,000.00 777 (Settlement, ¶ 29); (e) the Class Representative Enhancement Payments to be 888 made to Plaintiffs, which is a maximum of $5,000.00 each ($10,000.00 total) 999 (Settlement, ¶ 7); (f) the maximum gross amount for payment to the 111000 California Labor Workforce Development Agency (“LWDA”) as part of the 111111 consideration for the release of all Released Claims under PAGA, which is 111222 $18,750.00 (75% of $25,000 allocated to PAGA) (Settlement, ¶ 38(a)). 111333 • The Settlement is a non-reversionary settlement. (Settlement, ¶ 39.) 111444 • Each Class Member who did not opt out will be paid their share of the 111555 settlement, subject to certain taxes and withholdings. (Settlement, ¶ 42.) 111666 • Class Counsel will not seek an amount greater than $283,333.33 for attorneys’ 111777 fees. (Settlement, ¶ 3.) 111888 • Class Counsel will not seek an amount greater than $25,000.00 for litigation 111999 costs. (Settlement, ¶ 3.) 222000 • The Class Representative service payments requested will be $5,000.00 to 222111 each ($10,000.00 total). (Settlement, ¶ 7.) 222222 • If a Class Member has not cashed his or her check(s) within 180 days of 222333 issuance, the funds representing the “uncashed checks” shall be transmitted by 222444 the Administrator to the California State Controller’s Office for Unclaimed 222555 Property in the name of each Class Member who failed to cash their 222666 Settlement Payment check prior to the void date. (Settlement, ¶ 53.) 222777 / / / 222888 111 After reviewing the Settlement, the proposed Class Notice, and other related 222 documents, and having heard the argument of Counsel for respective Parties, if any, 333 IT IS HEREBY ORDERED AS FOLLOWS: 444 1. The Court finds that the proposed class satisfies the requirements of a 555 settlement class under Rule 23 of the Federal Rules of Civil Procedure. For purposes of 666 settlement, the requirements of Rule 23(a) are satisfied because the proposed Class is so 777 numerous that joinder of all Class Members is impracticable, there are questions of law 888 or fact common to the Class, the claims of Plaintiffs are typical of the claims of the 999 Class; and Plaintiffs will fairly and adequately protect the interests of the Class. The 111000 requirements of Rule 23(b) are satisfied because questions of law or fact common to 111111 Class Members predominate over any questions affecting only individual Class 111222 Members. 111333 2. The Parties’ settlement appears to have been made and entered into in 111444 good faith and is hereby finally approved as fair, adequate, and reasonable, subject to 111555 the limitations on the requested fees and payments as set forth below. 111666 3. The Court further finds that the settlement of Plaintiffs’ PAGA claim is fair 111777 and reasonable, and finally approves the Settlement and release of that claim and the 111888 payment to the LWDA in the amount of $18,750.00. Plaintiffs have provided evidence 111999 that the LWDA received notice of the proposed settlement in the manner required by the 222000 LWDA. 222111 4. The following persons are certified as Class Members solely for the 222222 purpose of entering a settlement in this matter: 222333 All persons who worked for Defendant in California as an hourly-paid, 222444 non-exempt employee at any time from February 15, 2020, through 222555 January 22, 2024. 222666 Participating Class Members are those Class Members who did not timely request 222777 exclusion from the Settlement. Based on the Declaration of Gillian McCreedy on behalf 222888 of Simpluris, Inc., no Class Members submitted a valid and timely Request for Exclusion 111 pursuant to the Settlement. 222 5. The distribution of the Notice Packet directed to the Class Members as set 333 forth in the Settlement and the Court’s directions has been completed in conformity 444 with the Preliminary Approval Order. The Notice Packet provided due and adequate 555 notice of the proceedings and of the matters set forth therein, including the proposed 666 settlement terms as set forth in the Settlement, to all persons entitled to such Notice. 777 The Notice fully satisfied the requirements of due process, having been sent to all Class 888 Members who could be identified through reasonable effort, and was the best notice 999 practicable under the circumstances. The Notice fully and accurately informed Class 111000 Members of all material elements of the proposed settlement and their opportunity to 111111 exclude themselves from, or object to, the Settlement. 111222 6. By filing the motion for an award of attorneys’ fees, costs, and service 111333 payment awards, and by also permitting Class Members to object to those amounts 111444 through to the hearing of the motion of final approval, Plaintiffs have satisfied the notice 111555 and opportunity to respond requirements of In re Mercury Interactive, 816 F.3d 988 111666 (9th Cir. 2010). 111777 7. Plaintiffs Florentino Lopez and Luis Hernandez are confirmed as the 111888 Class Representatives for settlement purposes. Moon Law Group, PC and Wilshire 111999 Law Firm are confirmed as Class Counsel. 222000 8. Simpluris, Inc. (“Simpluris”) is confirmed as the Settlement Administrator, 222111 pursuant to the terms set forth in the Settlement. The Court hereby directs payment to 222222 the Administrator, Simpluris, for fees and expenses, in the amount of $12,267.00, to be 222333 paid pursuant to the Settlement’s terms for such distribution. The Court finds that the 222444 Settlement Administrator has thus far fully discharged its obligations as Settlement 222555 Administrator under the terms of the Settlement, and the Settlement Administrator is 222666 directed to complete the administration as set forth in the Settlement. 222777 9. The proposed payment of $18,750.00 in civil penalties under the Labor 222888 Code Private Attorneys General Act of 2004 (Labor Code § 2698 et seq.) to the Labor 111 and Workforce Development Agency is approved. The Court finds that the substantial 222 risks identified in this matter could result in very substantial reductions in discretionary 333 penalties, if any were recovered. The Court approves the Settlement and release of the 444 PAGA claim. 555 10. The Court hereby awards Class Counsel, Moon Law Group, PC and 666 Wilshire Law Firm, $283,333.33 in attorney’s fees, with 75% ($212,500.00) to Moon 777 Law Group, PC and 25% ($70,833.33) to Wilshire Law Firm, PLC and $12,342.69 in 888 costs to Moon Law Group, PC and $5,044.81 in costs to Wilshire Law Firm, PLC. 999 11. The Court hereby awards Class Representative Enhancement Payments of 111000 $5,000.00 each to Plaintiffs Florentino Lopez and Luis Hernandez for a total of 111111 $10,000.00), to be paid in accordance with the terms of the Settlement. The Court finds 111222 that this amount is fair and reasonable in light of Plaintiffs’ contributions to this 111333 litigation, and this amount is unopposed. 111444 12. The Court directs payment to all Class Members pursuant to the terms of 111555 the Settlement. 111666 13. The Court orders that a Qualified Settlement Fund, as defined in Treasury 111777 Regulations Section 1.468B-1, or other applicable law, shall be established to effectuate 111888 the terms of the Settlement and the orders of the Court. 111999 14. Defendant shall pay a total of $850,000.00 to resolve this litigation. 222000 Defendant will fund the Gross Settlement Amount into a Qualified Settlement Fund 222111 account within twenty (20) calendar days of the Effective Date, as defined in the 222222 Settlement. Within fifteen (15) calendar days of the receipt of the funding, the Settlement 222333 Administrator shall issue settlement payments to Class Members. 222444 15. Class Members were given a full opportunity to participate in the Final 222555 Approval Hearing, and all Class Members and other persons wishing to be heard have 222666 been heard. As of the date of this Order and Judgment, no Class Member has objected to 222777 the Settlement. Participating Class Members who did not timely object to the settlement 222888 set forth in the Settlement are barred from prosecuting or pursuing any appeal of the Final 111 Approval Order and Judgment. 222 16. Upon the final approval by the Court of this Settlement and Defendant's 333 payment of all sums due pursuant to this Settlement, and except as to such rights or claims 444 as may be created by the Settlement, the Class Representatives, the Class and each Class 555 Member who has not submitted a valid and timely request for exclusion as to claims other 666 than the PAGA claim, will release claims as follows: 777 a. Released Claims. “Released Claims” means, all claims, rights, demands, 888 liabilities and causes of action, whether in law or equity, arising from the 999 same facts and/or claims alleged in the Original Complaint, PAGA 111000 Complaint and First Amended Complaint, Second Amended Complaint, 111111 or related to claims that were pled or could have been pled based on the 111222 facts alleged in the Complaint and in pending PAGA Letters submitted to 111333 LWDA by Putative Class Members and/or Class Counsel, including 111444 claims for wages, restitution, statutory and civil penalties, interest, fees, 111555 and costs, and claims arising from California’s Private Attorneys General 111666 Act, including under the California Labor Code and corresponding 111777 provisions of Wage Orders, based on the following categories of claims 111888 and allegations: (1) failure to pay wages, including minimum wages, 111999 regular wages, overtime wages at the regular rate, double time wages, 222000 paid sick leave, reporting time wages, vacation wages and shift 222111 differentials; (2) failure to provide meal periods and associated premium 222222 pay; (3) failure to authorize and permit rest breaks and associated 222333 premium pay; (4) failure to timely pay final wages at termination; (5) 222444 failure to provide accurate itemized wage statements; (6) failure to timely 222555 pay all wages during employment; (7) failure to reimburse business 222666 expenses; (8) failure to maintain accurate records of hours worked; (9) 222777 failure to maintain accurate records of meal breaks; (10) unfair business 222888 practices in violation of California Business and Professions Code 111 sections 17200, et seq., including incorporated or related claims based on 222 alleged violations of California Labor Code sections 201, 202, 203, 204, 333 210, 221, 226, 226.3, 226.7, 227.3, 233, 246, 246.5, 510, 512, 551, 552, 444 558, 1174, 1174.5, 1194, 1194.2, 1197, 1197.1, 1198, 2800 and 2802 et 555 seq.; and (11) civil penalties under the Private Attorneys General Act 666 (California Labor Code sections 2698 et seq., including incorporated or 777 related claims based on alleged violations of California Labor Code 888 sections 201, 202, 203, 204, 210, 218, 221, 226, 226.7, 227.3, 246, 510, 999 512, 551, 552, 558, 1174, 1174.5, 1194, 1197, 1197.1, 1198, 2800 and 111000 2802 et seq. 111111 b. Released Claims Period. “Released Claims Period” means the period from 111222 February 15, 2020 to January 22, 2024. 111333 c. Released Parties. “Released Parties” means Defendant, and any of its 111444 former and present parents, subsidiaries, and affiliates, divisions, 111555 corporations in common control, predecessors, successors, and assigns, as 111666 well as all, and their past and present officers, directors, employees, 111777 partners, shareholders, agents, attorneys, insurers, and any other 111888 successors, or assigns, or legal representatives, except insofar as these 111999 individuals are Class Members. 222000 d. Release of Additional Claims and Rights by Plaintiffs. Upon payment of 222111 all funds due hereunder and the occurrence of the Effective Date, as a 222222 condition of receiving any portion of their Class Representative 222333 Enhancement Payment, Plaintiffs will agree to the additional following 222444 General Release: In consideration of Defendant’s promises and 222555 agreements as set forth herein, each Plaintiff hereby fully releases the 222666 Released Parties from any and all Released Claims and also generally 222777 releases and discharges the Released Parties from any and all claims, 222888 demands, obligations, causes of action, rights, or liabilities of any kind 111 which have been or could have been asserted against the Released Parties 222 arising out of or relating to Plaintiffs’ employment by Defendant or 333 termination thereof, including but not limited to claims for wages, 444 restitution, penalties, retaliation, or wrongful termination of employment, 555 and including any other claims whatsoever, including any interest thereon, 666 including claims based on alleged discrimination on the basis of sex, race, 777 national origin, ancestry, age, religion, disability, handicap, and/or veteran 888 status, and/or any other state or federal or common law, statutory, or other 999 claims arising out of or relating to Plaintiffs’ employment by Defendant. 111000 This release specifically includes any and all claims, demands, obligations 111111 and/or causes of action for damages, restitution, penalties, interest, and 111222 attorneys’ fees and costs (except provided by the Agreement) relating to 111333 or in any way connected with the matters referred to herein, whether or 111444 not known or suspected to exist, and whether or not specifically or 111555 particularly described herein. Thus, Plaintiffs expressly waive any right or 111666 claim or right to assert hereafter that any claim, demand, obligation, 111777 and/or cause of action has, through ignorance, oversight, or error, been 111888 omitted from the terms of this Settlement Agreement. Specifically, 111999 Plaintiffs waive all rights and benefits afforded by California Civil Code 222000 Section 1542, which provides: A GENERAL RELEASE DOES NOT 222111 EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING 222222 PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR 222333 HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND 222444 THAT, IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY 222555 AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR 222666 RELEASED PARTY. The release of claims set forth in this paragraph 222777 does not include claims for workers’ compensation benefits or any of 222888 claims that may not be released by law. 111 e. PAGA Settlement and Release. The Parties acknowledge and agree that 222 for purposes of the PAGA and Judgment, all Putative Class Members 333 were allegedly aggrieved in the same manner pursuant to Labor Code § 444 2698, et. seq., in that each Putative Class Member allegedly suffered at 555 least one of the alleged Labor Code violations asserted in the Complaint 666 for which the PAGA provides an available remedy. The Parties also 777 acknowledge and agree that, by law, non-party employees have no right to 888 opt out of, or object to, the settlement of PAGA claims, that the settlement 999 of PAGA claims is subject to Court approval, and a judgment with respect 111000 to PAGA claims is binding with respect to non-party employees upon 111111 Court approval, pursuant to California Labor Code section 2699(l), Arias 111222 v. Superior Ct. (Dairy), 46 Cal. 4th 969, and Cardenas v. McLane 111333 Foodservice, Inc., 2011 WL 379413 at *3 (C.D. Cal. Jan. 31, 2011). As 111444 such, irrespective of whether a Putative Class Member submits a Request 111555 for Exclusion, upon approval of the Settlement, all Putative Class 111666 Members will be issued payment for PAGA penalties as provided herein, 111777 and upon the Effective Date, shall be deemed to have released the 111888 Released Claims arising under PAGA. 111999 17. The Court directs that the Clerk of the Court enter the Court’s Order as a 222000 Final Judgment. Plaintiffs and Class Members shall take nothing from Defendant except 222111 as set forth in the Settlement and this Final Approval Order and Judgment. 222222 18. Neither this Order, the Settlement, nor any related statements or proceedings 222333 shall be construed or deemed an admission of liability, culpability, damage or wrongdoing 222444 on the part of Defendant, or of the appropriateness of certification of the Class other than 222555 for settlement purposes. 222666 19. In the event the Judgment is overturned, reversed, not affirmed in its entirety, 222777 or never becomes final, the Effective Date does not occur, or the Settlement is nullified or 222888 modified for any reason, Defendant does not waive any and all rights, including its right to 1 || oppose class certification. The Settlement is a settlement document and shall be 2 || madmissible in evidence in any proceeding, except an action or proceeding to approve, 3 | interpret, or enforce the Settlement. 4 20. The Court orders that, without affecting the finality of the Final Approval 5 || Order and Judgment, it reserves continuing jurisdiction over the parties for the purposes of 6 || implementing, enforcing and/or administering the Settlement or enforcing the terms of the 7 |, Judgment. 8 21. Plaintiffs’ Motion for Final Approval of Class and PAGA Action Settlement 9 | and Plaintiffs’ Motion for an Award of Attorneys’ Fees and Costs, and Enhancement 10 || Awards to Plaintiffs are hereby granted, and the Court directs that Judgment shall be 11 || entered in accordance with the terms of this Order. 12 22. Class Counsel is ordered to file a final report and declaration regarding 13 || distribution no later than December 2, 2024. 14 IT IS SO ORDERED. 15 Dated: May 22, 2024 4 =o! sal 16 IH Meme A - 17 Honorable James E. Sunmons Jr. 18 United States District Judge 19 20 21 22 23 24 25 26 27 28 Case No.: 3:22-CV-01404-JES-DDL Page 10 Lopez etal, v. Utility Tree Service, LLC