The opinion of the court was delivered by: VIRGINIA A. Phillips United States District Judge
[Motion filed on July 28, 2009]
ORDER GRANTING PLAINTIFF'S MOTION FOR ORDER: (1) CONDITIONALLY CERTIFYING SETTLEMENT CLASS; (2) GRANTING PRELIMINARY APPROVAL TO PROPOSED CLASS ACTION SETTLEMENT AND PLAN OF ALLOCATION; (3) DIRECTING DISSEMINATION OF CLASS NOTICE AND CLAIM FORM TO CLASS; AND (4) SETTING FINAL APPROVAL HEARING DATE AND RELATED DATES [Link & Term Doc. Nos. 32 & 39]
On October 30, 2007 in the California Superior Court for the County of San Bernardino, Plaintiff Rosalba Sandoval ("Plaintiff") filed a putative class action Complaint against Defendants Courtyard Marriott ("Marriott") and Theraldson Employee Management Inc. ("Tharaldson" or "Defendant") with the following claims:
(1) Failure to Pay Overtime Compensation, Labor Code § 1194; (2) Unlawful Collection of Receipt of Wages Previously Paid and Failure to Indemnify for Expenditures in Discharge of Duties, Labor Code §§ 221, 2802; (3) Failure to Provide Required Meal Periods, Labor Code § 226.7; (4) Failure to Provide Required Rest Periods, Labor Code § 226.7; (5) Failure to Provide Accurate Statements and Maintain Required Records, Labor Code §§ 226, 1174; and (6) Unlawful Business Practices, Business and Professions Code § 17200. On April 9, 2008, Defendant Tharaldson Employee Management Inc. removed the case to this Court pursuant to the Class Action Fairness Act, 28 U.S.C. § 1332(d). On July 8, 2008, pursuant to Federal Rule of Civil Procedure 41, Plaintiff dismissed Defendant Courtyard Marriott from the action.
On March 4, 2009, Plaintiff filed a "Notice of Settlement" as to all claims against Defendant Tharaldson. On July 28, 2009, Plaintiff filed a "Motion for Order: (1) Conditionally Certifying Settlement Class; (2) Granting Preliminary Approval to Proposed Class Action Settlement and Plan of Allocation; (3) Directing Dissemination of Class Notice and Claim Form to Class; and (4) Setting Final Approval Hearing Date and Related Dates" ("Motion"), the Declaration of Matthew J. Matern ("Matern Declaration"), a Stipulation of Class Action Settlement ("Stipulation"), and proposed Claim and Notice Forms. On August 7, 2009, Defendant Tharaldson filed a "Notice of Non-Opposition" to Plaintiff's Motion. During a hearing on August 24, 3009, the Court requested the parties file additional declarations. On September 3, 2009, Plaintiff filed the Declaration of Rosalva Sandoval ("Sandoval Decl.") and the Supplemental Declaration of Matthew J. Matern ("Matern Supplemental Decl.") in support of the Motion.
Parties seeking class certification for settlement purposes must satisfy the requirements of Federal Rule of Civil Procedure 23 ("Rule 23"). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 620 (1997). A court considering such a request should give the Rule 23 certification factors "undiluted, even heightened, attention in the settlement context." Id.
To bring a class action under Rule 23(a), a plaintiff must demonstrate: the class is so numerous that joinder of all members is impracticable ["numerosity"], (2) there are questions of law or fact common to the class ["commonality"], (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class ["typicality"], and (4) the representative parties will fairly and adequately protect the interests of the class ["adequacy of representation"].
In addition to these prerequisites, a plaintiff must satisfy one of the Rule 23(b) prongs to maintain a class action. Where, as here, a plaintiff moves for class certification under Rule 23(b)(3), the plaintiff must prove: the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. The matters pertinent to the findings include: (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum.*fn1
B. Preliminary Approval of Settlement
Rule 23(e) states: "The court must approve any settlement, voluntary dismissal or compromise of the claims, issues, or defenses of a certified class." Fed. R. Civ. P. 23(e)(1)(A). The court must hold a hearing and find that "the settlement... is fair, reasonable, and adequate." Fed. R. Civ. P. 23(e)(1)(C). Review of a proposed settlement generally proceeds in two stages, a hearing on preliminary approval followed by a final fairness hearing. See Federal Judicial Center, Manual for Complex Litigation, § 21.632 (4th ed. 2004).
At the preliminary approval stage, a court determines whether a proposed settlement is "within the range of possible approval" and whether or not notice should be sent to class members. In re Corrugated Container Antitrust Litig., 643 F.2d 195, 205 (5th Cir. 1981); see also the purpose of a preliminary approval hearing is "to ascertain whether there is any reason to notify the class members of the proposed settlement and to proceed with a fairness hearing"); Manual for Complex Litigation § 21.632.
A. Certification of Settlement Class
In this Motion, Plaintiff seeks certification of the settlement class, described as: "all persons who were employed in any non-exempt position at any Courtyard by Marriott property ("Property") which was or is managed by Tharaldson in the State of California between October 30, 2003 and the Date of Preliminary Approval." (Settlement Stip. § 1.5.)
To establish, under Rule 23(a)(1), that joinder of all members is "impracticable," the plaintiff need not show that it would be "impossible" to join every class member. Haley v. Medtronic, Inc., 169 F.R.D. 643, 647 (C.D. Cal. 1996). There is no specific number requirement, as the court may examine the specific facts of each case. Ballard v. Equifax Check Servs., Inc., 186 F.R.D. 589, 594 (E.D. Cal. 1999). Indeed, courts have not required evidence of specific class size or identity of class members to satisfy the requirements of Rule 23(a)(4). Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993).
Here, Plaintiff's counsel avers the settlement class consists of over one thousand current and former employees of Defendant. (See Matern Decl. ¶ 24; Mot. at 9.) This satisfies "numerosity" for purposes of Rule 23. See Ballard, 186 F.R.D. at 594.
Courts have construed Rule 23(a)(2)'s commonality requirement permissively. Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). As the Ninth Circuit explained:
All questions of fact and law need not be common to satisfy the rule. The existence of shared legal issues with divergent factual predicates is sufficient, as is a common core of salient facts coupled with disparate legal remedies within the class.
Additionally, this Court, Pfaelzer, J., has stated "the commonality requirement is interpreted to require very little." In re Paxil Litigation, 212 F.R.D. 539, 549 (C.D. Cal. 2003). "[F]or the commonality requirement to be met, there must only be one single issue common to the proposed class." Haley, 169 F.R.D. at 648.
Here, Plaintiff lists nine "common questions." (Mot. at 10-11.) Plaintiff's Declaration and Matern's Supplemental Declaration substantiate Plaintiff's allegations. Matern's Supplemental Declaration discusses time record sampling analysis and other evidence indicating that "Defendant routinely required employees to work through meal and rest periods." (Matern Supplemental Decl. ¶¶ 8-9.) Plaintiff's Declaration states that she personally observed other employees who did not receive meal or rest breaks. (Sandoval Decl. ¶ 8.) This establishes an issue common to the proposed class. See Haley, 169 F.R.D. at 648. Accordingly, Plaintiff has met her burden of establishing "commonality" as required by Rule 23.
The Ninth Circuit in Hanlon explained that "representative claims are 'typical' if they are reasonably co-extensive with those of absent class members; they need not be substantially identical." 150 F.3d at 1020. Thus, to find typicality, a "court does not need to find that the claims of the purported class representative are identical to the claims of the other class members." Haley, 169 F.R.D. at 649. The class representatives "must be able to pursue [their] claims under the same legal or remedial theories as the unrepresented class members." Paxil, 21 F.R.D. at 549.
Plaintiff provides evidence that her claims are typical of Class Members. Plaintiff's counsel analyzed a one-month-per-quarter sampling of Defendant's employee punch cards. (Matern Supplemental Decl. ¶ 10.) The average violation rate for the analyzed sample was 56.52 percent for Class Members for missed, short, or late meal breaks. (Id.) An analysis of Plaintiff's time cards during the entire period reflects a violation rate of 59.66 percent, which is similar to the Class Member violation rate. (Id.) This analysis indicates the claims for Plaintiff and the unrepresented Class Members arise from a similar factual basis, ...