United States District Court, S.D. California
JOY PEARSON, individually and on behalf of all others similarly situated, Plaintiff,
P.F. CHANG'S CHINA BISTRO, INC., a Delaware corporation; and DOES 1 through 50, inclusive, Defendants.
ORDER: (1) CONDITIONALLY CERTIFYING SETTLEMENT CLASS
ACTION; (2) PRELIMINARILY APPROVING PROPOSED SETTLEMENT; (3)
APPROVING NOTICE TO CLASS; AND (4) SETTING FINAL APPROVAL
HEARING DATE (ECF NO. 128)
Janis L. Sammartino United States District Judge
before the Court is Plaintiffs Joy Pearson, (in Case No.
13-cv-2009), and Linda Andrade and Liliana Avila's, (in
Case No. 12-cv-2724), Unopposed Motion for Order Granting
Preliminary Approval of Class Action Settlement. (ECF No.
128.) The Court vacated the hearing and took the motion under
submission without oral argument pursuant to Civil Local Rule
7.1(d)(1). (ECF No. 130.) Plaintiffs also filed supplemental
briefing at the Court's request. (ECF No. 131.) Because
the settlement is fundamentally fair, reasonable, and
adequate, the Court GRANTS the Parties'
Preliminary Settlement Motion.
November 7, 2012, Plaintiffs Linda Andrade, and Liliana Avila
filed a class action suit alleging violations of
California's Labor and Business and Profession Codes on
behalf of all non-exempt employees of Defendant P.F.
Chang's China Bistro, Inc. (“MTN, ” ECF No.
128-1, at 12.) On July 23, 2013, Plaintiff Joy Pearson
filed a class action suit in San Diego Superior Court, which
Defendant removed to the Southern District of California.
(Id. at 14.) Additionally, a third class action,
Kidner et al. v. P.F. Chang's, No. RIC 1500355,
was filed in state court, removed to the Central District of
California, and subsequently remanded back to state
court. (Id. at 16.) Defendant operates
several restaurants in California. (First Am. Compl.
(“FAC”), ECF No. 20, ¶ 9.) The proposed
class includes all non-exempt, hourly employees in
Defendant's restaurants in California who worked at any
time during the period July 22, 2009 through the date which
this Court grants preliminary approval (“Settlement
Class” “Class Members”). (MTN 11.)
across all three actions, assert seven claims for relief
under various provisions of California law:
1. Failure to Provide Legally Compliant Meal Periods
2. Failure to Pay Wages Due, Including Minimum Wages, Regular
Time, Overtime, Double Time, and Other Types of Wages
3. Failure to Pay Split Shift Premiums
4. Failure to Pay Reporting Time Wages
5. Waiting Time Penalties
6. Unlawful Repayment of Wages
7. Cal. Bus. & Prof. Code § 17200, et seq.
8. Failure to Provide Accurate Wage Statements
9. Violation of the Private Attorney General Act
(See Id. at 10.) Plaintiffs generally allege that
Defendant has failed to set various wage-related policies.
For example, Plaintiffs allege that Defendant has no
“split-shift interval policy, ” which harmed
Plaintiffs because they were not compensated during occasions
they worked split shifts. (Third Am. Compl.
(“TAC”), ECF No. 70, ¶ 26.) Defendant did
not provide Plaintiffs a duty free meal period or compensate
one hour of pay to compensate for the loss of the meal
period. (Id. ¶¶ 35-36.) Next, Defendant
allegedly did not provide Plaintiffs a rest period at the
legally mandated rate of ten minutes for every four hours of
work. (Id. ¶¶ 47-49.) Plaintiffs also
allege that Defendant did not timely pay employees upon their
discharge from employment with Defendant, as required by
California law. (Id. ¶¶ 61-65.) Finally,
Defendant did not provide Plaintiffs accurate itemized wage
statement. (Id. ¶¶ 71-72.)
Parties conducted voluminous discovery and motion practice,
as well as arbitration, over the course of five years. (MTN
11.) They also engaged in two full-day mediations, once on
August 18, 2016 and once on August 14, 2017. (Id. at
18.) The latter mediation was successful and resulted in a
non-reversionary settlement of $6.5 million. (Id. at
present to the Court an unopposed Motion for an Order: (1)
conditionally certifying the proposed Settlement Class,
defined below; (2) preliminarily approving the proposed
settlement of $2.9 million; (3) approving the proposed Notice
and directing distribution of the Notice and related
documents; (4) approving CPT Group, Inc. as Claims
Administrator; (5) appointing Plaintiffs' counsel as
class counsel; (6) appointing Plaintiffs as class
representatives; and (7) setting a schedule for final
approval. (MTN 11-12.) Although Defendant does not
oppose certification of a Settlement Class and the proposed
Settlement, Defendant continues to deny all allegations of
unlawful conduct alleged in the Complaint, and does not admit
or concede that it has, in any manner, violated federal or
California laws or committed any other unlawful action that
would entitle Plaintiffs or any class to any recovery.
Parties have submitted a comprehensive settlement document
with approximately forty pages of substantive terms,
(Stipulation of Settlement and Release (“Settlement
Agreement”), Ex. A, ECF No. 128-2, at 24-64), and a
nine-page proposed class notice, (Notice of Class Action
Settlement, Ex. B., ECF No. 128-2, at 74-83). The settlement
provides monetary relief but no programmatic relief.
proposes to pay a Maximum Settlement Fund of $6, 500, 000.00.
(MTN 19.) From this amount will be deducted: (a) all
Settlement payments to Class Members eligible for Settlement
payments; (b) the Class Representative incentive payment
approved by the Court; (c) Class Counsel's attorneys'
fees and expenses approved by the Court; (d) administration
fees and expenses; and (e) payment made to the State of
California Labor Workforce and Development Agency
(“LWDA”). (See Settlement Agreement
¶¶ III.L.2- 6.) Defendant will automatically make
Settlement payments to Class Members (unless they choose to
opt out) based on the following formula:
Using the Class Data, the Settlement Administrator will
calculate the total Compensable Workweeks for all Settlement
Class Members. The respective Compensable Workweeks for each
Settlement Class Member will be divided by the total
Compensable Workweeks for all Settlement Class Members,
resulting in the Payment Ratio for each Settlement Class
Member. Each Settlement Class Member's Payment Ratio will
then be multiplied by the Net Settlement Amount to calculate
each Settlement Class Member's estimated Individual
(1) Settlement Class Members are not eligible to receive any
compensation other than Individual Settlement Payments from
this Settlement, and they will receive Individual Settlement
Payments if they do not submit timely and valid requests for
(2) If any Class Members submit requests for exclusion, each
Settlement Class Member will have his or her Individual
Settlement Payment increased pro-rata based on Compensable
Workweeks such that the aggregate of all Individual
Settlement Payments paid to Settlement Class Members is equal
to the Net Settlement Amount.
(Id. ¶ III.L.2.a.) The check will
escheat to the State of California Department of Industrial
Relations Unpaid Wages Fund if the Class Member fails to cash
his or her check within 180 days after it is mailed.
(Id. ¶ III.L.2.e.)
23 SETTLEMENT CLASS CERTIFICATION
granting preliminary approval of a class action settlement
agreement, the Court must first determine whether the
proposed class can be certified. Amchem Prods. v.
Windsor, 521 U.S. 591, 620 (1997) (indicating that a
district court must apply “undiluted, even heightened,
attention [to class certification] in the settlement
context” in order to protect absentees).
actions are governed by Federal Rule of Civil Procedure 23.
To certify a class, each of the four requirements of Rule
23(a) must first be met. Zinser v. Accufix Research
Inst., Inc., 253 F.3d 1180, 1186 (9th Cir. 2001). Rule
23(a) allows a class to be certified only if:
(1) the class is so numerous that joinder of all members is
(2) there are questions of law or fact common to the class;
(3) the claims or defenses of the representative parties are
typical of the claims or defenses of the class; and
(4) the representative parties will fairly and adequately
protect the interests of the class.
Fed. R. Civ. P. 23(a). Next, in addition to Rule 23(a)'s
requirements, the proposed class must satisfy the
requirements of one of the subdivisions of Rule 23(b).
Zinser, 253 F.3d at 1186. Here, Plaintiffs seeks to
certify the Settlement Class under subdivision Rule 23(b)(3),
which permits certification if “questions of law or
fact common to class members predominate over any questions
affecting only individual class members, ” and “a
class action is superior to other available methods for
fairly and efficiently adjudicating the controversy.”
The Court addresses each of these requirements in turn.
Rule 23(a)(1): Numerosity
Rule of Civil Procedure 23(a)(1) requires that a class must
be “so numerous that joinder of all members is
impracticable.” “[C]ourts generally find that the
numerosity factor is satisfied if the class comprises 40 or
more members and will find that it has not been satisfied
when the class comprises 21 or fewer.” Celano v.
Marriott Int'l, Inc., 242 F.R.D. 544, 549 (N.D. Cal.
the proposed Settlement Class consists of approximately 17,
000 individuals, all of whom were (or are currently) employed
by Defendant. (MTN 24.) Accordingly, joinder of all members
would be impracticable for purposes of Rule 23(a)(1), and the
numerosity requirement is satisfied.
Rule 23(a)(2): Commonality
Rule of Civil Procedure 23(a)(2) requires that there be
“questions of law or fact common to the class.”
Commonality requires that “the class members
‘have suffered the same injury.'”
Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349-50
(2011) (quoting Gen. Tel. Co. of Sw. v. Falcon, 457
U.S. 147, 157 (1982)). “The existence of shared legal
issues with divergent factual predicates is sufficient, as is
a common core of salient ...