United States District Court, S.D. California
ORDER GRANTING JOINT MOTION FOR APPROVAL OF
M. James Lorenz, United States District Judge.
before the Court in this action for violation of California
and federal labor laws is Joint Motion for Approval of
Amended Settlement Agreement pursuant to California Labor
Code § 2699(1)(2). (Doc. no. 75 ("Motion");
doc. no. 76 ("Amended Agreement").) For the reasons
which follow, the Motion is granted.
Lourdes Olivo was a seasonal hourly farmworker employed by
Defendants to work in the lettuce fields in the Imperial
Valley and in the vicinity of Yuma, Arizona. (Doc. no. 21-1;
see also doc. no. 22.) During the harvesting season,
she was given work on a daily basis. Along with her
co-workers, she was required to report at a fixed location in
or around Calexico to take a crew bus to the work site for
the day. Plaintiff claims the crew bus was operated by
Defendants, and that the workers were not paid for the travel
time, or for the time they spent waiting with the bus en
route for the forepersons to complete necessary banking or
other errands on behalf of Defendants, waiting for the frost
or dew to dissipate in the morning, waiting for the
forepersons to complete their duties on site before the work
could begin and at the end of the day, and waiting for the
bus for the return trip.
addition to the wages and hours claims, Plaintiff alleges
wrongful termination. She claims she was interviewed for an
internal company investigation and truthfully responded that
the forewoman did not allow the crew to take mandatory
scheduled breaks. Shortly thereafter, the forewoman was
removed and replaced by her husband, who demoted Plaintiff
from the position of foreperson's assistant, which she
had held for the previous fifteen years. Plaintiff was not
re-hired the following season. She claims she was demoted and
not re-hired because of her cooperation in the internal
investigation. Plaintiff also maintains that she and other
workers were unlawfully replaced by temporary foreign
alleges failure to pay minimum wages, failure to pay overtime
wages, failure to pay contractual wages due, failure to
furnish accurate wage statements, failure to timely pay all
wages due upon termination, and adverse employment action in
violation of California public policy. She also alleges that
Defendants violated California's Unfair Competition Law,
Cal. Bus. & Prof. Code §§17200 et
seq., and the Agricultural Worker Protection Act
("AWPA"), 29 U.S.C. §§1831-1854. She
brings this action individually as well as pursuant to the
Labor Code California Private Attorney General Act
("PAGA"), Cal. Lab. Code §§ 2698 et
seq., on behalf of Other Aggrieved Employees, defined as
approximately 582 individuals who performed work as romaine
lettuce harvesters or packers for Defendant Fresh Harvest
between February 14, 2016 and the end of the 2017-18 lettuce
harvest season and were transported on buses or vans owned or
operated by Defendant Fresh Harvest, from Calexico to various
locations in the Imperial Valley and Yuma, Arizona vicinity.
(Doc. no. 76 at 8.) Plaintiff seeks damages, penalties,
restitution, and other relief. The Court has subject matter
jurisdiction pursuant to 28 U.S.C. §1331 over the AWPA
claim, and supplemental jurisdiction pursuant to 28 U.S.C.
§1367 over the related state law claims.
dispute Plaintiff's claims on multiple bases, including
merits and statute of limitations. The strengths and
weaknesses of Plaintiff's claims and Defendants'
defenses are discussed in the Motion, and the discussion is
incorporated herein by reference. (Doc. no. 75-1 at 9-14,
22-24; doc. no. 75-2 at 6-13.) After conducting extensive
discovery and investigation, the parties settled with the
assistance of Magistrate Judge Gallo. (Doc. no. 75-1 at
parties filed a joint motion for approval of settlement. The
Court initially required supplemental briefing (doc. no. 72)
because of inconsistencies between the settlement agreement
and distribution plan, and between the notice of settlement
and the claim form. Although Plaintiff timely filed a
supplemental brief and counsel's declaration (doc. no.
73), material discrepancies remained. Accordingly, the
initial motion for settlement approval was denied without
prejudice. (Doc. no. 74.) The parties subsequently amended
the settlement agreement and filed the pending motion. (Docs
no. 75, 76.)
TERMS OF THE PROPOSED SETTLEMENT
are to pay $1 million into a non-reversionary settlement fund
to be distributed according to a plan of distribution (doc.
no. 76 at 16-20) as follows:
1. Payment to Simpluris, Inc. of $11, 000 for claim
administration. If actual claim administration expenses
exceed $11, 000, the claim administrator may receive up to
$15, 000 based on an itemized accounting.
2. Payment to Plaintiff within ten business days of
settlement approval in the sum of $45, 000 for her underpaid
wages, damages, penalties, and interest.
3. Payment to the California Labor and Workforce Development
Agency ("LWDA") within ten business days of
settlement approval of $41, 250 for the LWDA's share of
PAGA civil penalties, representing 75% of total PAGA civil
penalties awarded under the settlement. See Cal.
Lab. Code §2699(i) (allocating 75% of the penalties to
the LWDA and 25% to the aggrieved employees).
4. Allocation of no less than $698, 750 for pro rata payments
to Other Aggrieved Employees who submit claims, of which $13,
750 consists of the employees' total portion of PAGA
civil penalties, and the remainder consists of their
underpaid wages, liquidated damages, and waiting time
penalties. The amount due each employee is calculated
according to a formula in the distribution plan and pro rated
based on the number of weeks the employee worked for
Defendants. Payments to Other Aggrieved Employees are to be
made in two installments: (1) $500 per employee within 30
days of verifying the employee's claim; and (2) the
remaining portion at the end of the claims period.
5. Subject to Court approval, Plaintiff's attorneys are
to receive up to $200, 000 for fees and costs within ten
business days of settlement approval. If the Court approves a
higher sum, up to a total of $330, 000, any excess over $200,
000 is to be paid to the extent settlement funds remain
available after payment to Other Aggrieved Employees.
6. Any remaining funds are to be deposited with the LWDA as
additional civil penalties.
proposed settlement includes two release provisions, the
Mutual Release in the body of the Amended Agreement, and the
Release of Claims form for signature by each Other Aggrieved
Employee who submits a claim. The Mutual Release applies only
to the "Parties" (doc. no. 76 at 11-12), defined as
"Plaintiff and Defendants collectively"
(id. at 6). Nevertheless, Other Aggrieved Employees
are "bound by the judgment in an action under the PAGA,
but only with respect to recovery of civil penalties."
ZB, N.A. v. Super. Ct. (Lawson), 8
Cal.5th 175, 196 (2019). They "retain all
rights 'to pursue or recover other remedies available
under state or federal law, either separately or concurrently
with' [the PAGA action.]" Baumann v. Chase Inv.
Servs. Corp., 747 F.3d 1117, 1123 (9th Cir.
2014) (quoting Cal. Lab. Code § 2699(g)(1)).
This is because the PAGA authorizes a representative action
only for the purpose of seeking civil penalties for Labor
Code violations, and an action to recover civil penalties is
fundamentally a law enforcement action, not one for the
benefit of private parties.
ZB, 8 Cal.5th at 196-97 (internal
quotation marks, brackets and citation omitted); see also
Sakkab v. Luxittica Retail N. Am., Inc., 803 F.3d 425,
435 (9th Cir. 2015) ("PAGA does not give
absent employees any substantive right to bring their
'own' PAGA claims").
regard to "rights to pursue other . . . remedies,"
Baumann, 747 F.3d at 1123, a Release of Claims must
be signed by each Other Aggrieved Employee who submits a
claim. (Doc. no. 76 at 24.) Accordingly, Other Aggrieved
Employees who do not sign a Release of Claims remain free to
pursue other remedies against Defendants.
has complied with the PAGA's notice requirement, Cal.
Lab. Code § 2699(1)(2), by submitting the proposed
settlement to the LWDA. (See doc. no. 75-2 at 20,
139.) The LWDA has not responded.
regard to Other Aggrieved Employees, the proposed settlement
requires Defendants to provide the claim administrator with
their names, addresses and payroll records. After verifying
the contact information for Defendants' former employees,
the claim administrator will send a notice packet by first
class mail. The notice packet is to contain English and
Spanish versions of the notice of settlement, claim form, an
estimate of each employee's settlement payment, and a
Release of Claims form. A skip trace or other search is to be
performed for every returned notice packet, and the packet
re-sent by first class mail to any updated addresses found.
notice describes the nature of this action and includes an
estimate of each employee's payment. (Doc. no. 76 at
22-23.) The estimate provides the maximum settlement amount
for each employee for underpaid wages and liquidated damages,
including the number of work weeks on which the estimate is
based, and indicates that each employee would receive
"an amount for waiting time penalties."
(Id. at 23.) It also indicates that the actual
amount received "will depend on how many claims are
filed." (Id. at 22.) It further states that the
distribution will be made in two payments, and that actual
distribution may be less than estimated, but an initial
payment of $500 to ...