Articles Law Offices of Sima Fard Attorneys Irvine California

SANTA ANA - Sam Majdi used to enjoy his job in the electronics field. His dedication even earned him a sales-manager-of-the-year award during a stint at The Good Guys.

But after returning to a former employer, Circuit City, the 45-year-old's attitude toward his profession changed.

Majdi, who is of Iranian descent, claimed that he was unlawfully fired from Circuit City for sending an e-mail that was considered offensive to a subordinate. He also alleged that his supervisors racially discriminated against him and tried to weed out all Circuit City employees of Middle Eastern descent.

An outside attorney for Richmond, Va.-based Circuit City Stores Inc. declined to be interviewed for this article.

Majdi filed a lawsuit detailing his allegations, but, because of an agreement he signed when he was hired requiring that he submit to arbitration instead of taking his lawsuit to court, a judge ordered him to arbitrate his case.

Circuit City's arbitration policy created an uphill legal battle for Majdi. From the time an arbitrator was selected, he had a deadline of just 90 days to produce discovery, and he was limited to deposing only three witnesses. In addition, he was up against a Circuit City policy that provided for only $5,000 in punitive damages.

But after dogged pursuit of evidence to back his case, the Aliso Viejo resident earlier this year overcame the obstacles to obtain a favorable ruling through the electronic giant's arbitration policy.

Majdi was awarded more than $150,000 for his claims of wrongful termination, breach of contract and breach of the covenant of good faith and fair dealing. He wasn't, however, awarded any punitive damages.

His victory against Circuit City comes at a time when the law as it applies to mandatory employment arbitration agreements is evolving rapidly.

The California Supreme Court, in a decision earlier this year, Armendariz v. Foundation Health Psychcare Services Inc., 24 Cal.4th 83 (Cal. Aug. 24, 2000), dramatically increased the fairness of compulsory arbitration policies.

Both Armendariz and a state appellate case against Circuit City, Ramirez v. Circuit City, 76 Cal.App.4th 1229 (1999), found that employment arbitration agreements are "unconscionable" if they operate in a harsh or one-sided manner without any justification.

Majdi's lawyer, Irvine sole practitioner Sima Fard, said the arbitration agreements of Circuit City and other employers now have to be "in line with due process."

Majdi's case, however, played out before the beneficial provisions of the recent rulings went into effect.

Majdi started work for an Orange County Circuit City store in 1989. He jumped ship five years later to work for The Good Guys, where he won the store's Sales Manager of the Year award in 1995.

Circuit City staff members approached Majdi soon after he won the award and asked him to return to their company as a manager with better pay and status, he contended in litigation papers.

Majdi accepted the offer and joined the staff at Circuit City's Santa Ana store. He soon was promoted and moved to the Irvine store, where he was manager of the audio/video department.

Not long after he was hired, though, Majdi alleges that he began to encounter racial discrimination.

His supervisor, Dave Delaney, began treating him differently from other non-Iranian males, Majdi contends in his documents. Delaney used profanity toward him and allegedly told Majdi he didn't want him in his store.

Majdi says he was ordered to "write up" and fire other employees of Middle Eastern descent. Delaney, he contends, allegedly referred to such individuals as "towel heads" and described them as having bad body odor.

In May 1997, Majdi admonished by e-mail one of his subordinates for not complying with Delaney's policy of calling back customers who visited and purchased items from the store.

The e-mail, sent to an employee named Michael Buttacavoli, stated that Majdi did not want to get "fucked over" because he called Buttacavoli's customers for him.

Buttacavoli complained about the e-mail, and Majdi was fired.
Majdi filed a complaint in Orange County Superior Court, alleging that he was unjustly terminated and that he suffered discrimination because of his race and ethnic origin.

The case was transferred to federal court, where a judge granted a motion by Circuit City to compel arbitration.

As the case arbitrated, Fard, Majdi's lawyer, said she experienced difficulties getting discovery from Circuit City. And because of the arbitration agreement's three-witness deposition limit, Fard said she wasn't able to depose several of the individuals who allegedly made the decision to fire Majdi.

Circuit City didn't conduct a thorough investigation of Majdi's claims, Fard said. Instead, store officials would respond by "sensing" the work environment or randomly questioning employees about conduct, according to the arbitrator's decision in the case.

Circuit City officials acknowledged that they never spoke with Majdi about his allegations, according to the arbitrator's report.

The arbitrator, Steven D. Bromberg of Judicate West in Santa Ana, found that Majdi was wrongfully terminated. But Bromberg did not find that Majdi's firing was racially motivated. He awarded Majdi $155,000, which covered back pay, court costs and the causes of action Majdi alleged.

Circuit City moved to vacate the award, alleging that the arbitrator "exceeded his powers and acted in manifest disregard" in his award of damages to Majdi.

But a federal judge granted a motion by Majdi to confirm the award, finding that the arbitrator's award stayed true to the law.

Rex D. Berry, name partner in Seattle's Davis, Grimm, Payne, Marra & Berry who represented Circuit City, declined to comment on Majdi's allegations or his award.

In the last year, the state Supreme Court has overhauled the standards by which compulsory arbitration agreements are imposed on employees.

In the Ramirez case, the other case that involved Circuit City, the high court found that the chain's arbitration agreement is "unenforceable and unconscionable."

In that case, a Fresno Circuit City employee, Robert Ramirez, who installed electronics in automobiles for the store, alleged that the company failed to pay its workers adequate wages even though it required them to provide their own tools for installation of Circuit City products.

Ramirez, who filed a class action "on behalf of himself and all others similarly situated," also alleged that Circuit City didn't pay its employees enough overtime wages and that the company was misreporting its employees' earnings statements.

Circuit City filed a motion to compel arbitration, but the trial court found that the agreement excludes class actions, and it denied the company's motion.

On appeal to the 4th District Court of Appeal, the judges found that Circuit City's arbitration agreement "contravenes California law to the extent that it limits the rights conferred on employees by the Labor Code."

More significant, however, the Supreme Court's finding this year in the Armendariz case will lead to major changes in employment arbitration throughout the state.

"Given the lack of choice and the potential disadvantages that even a fair arbitration system can harbor for employees, we must be particularly attuned to claims that employers with superior bargaining power have imposed one-sided, substantively unconscionable terms as part of an arbitration agreement," Justice Stanley Mosk wrote.

In that case, the high court found that such an agreement can't exclude a worker from the same types of relief available in cases that go to trial on claims that have statutorily imposed remedies, such as punitive damages and attorney fees.

The justices also found that an employee should not have to pay unreasonable costs as a condition of access to the arbitration forum.

Also prohibited under Armendariz are agreements that require an employee to arbitrate a claim against an employer but do not work in the reverse, that is, do not require the employer to arbitrate a claim against an employee. Such unequal treatment is "substantially unconscionable," the justices decided.

Frank Cronin, a partner at Irvine's Snell & Wilmer who specializes in employment law, said the state Supreme Court has "basically given its seal of approval" to mandatory arbitration, as long as it gives plaintiffs most of the benefits they would get in a courtroom.

About 25 percent of companies in California require their employees to arbitrate claims they bring against their employers, Cronin said.

"The court's ruling is adding all the features of civil litigation to arbitration," Cronin said. "It also helps determine whether or not there is an unconscionable agreement."

Fard said she respects the award Majdi received from his arbitration with Circuit City, but she said she believes her client should have received damages for racial discrimination.

"Circuit City believed they were above the law," Fard said. "They didn't think anyone would find out about it."

Court Criticizes Law Firm's Mischaracterization of the Law

By a MetNews Staff Writer

The Fourth District Court of Appeal criticized an Irvine firm yesterday in an unpublished opinion for arguing a legal position contrary to what the same court had ruled in a published opinion in a prior case involving the same firm.

"In this case, we deal with tactics which were heavy-handed at best, and at worst could be viewed as a deliberate attempt to deprive a pro per plaintiff of the opportunity to air his grievance in any forum. Reluctant as we are to cast aspersions, we must reverse the judgment, and cannot spare trial counsel what the record seems to indicate is well-earned criticism."

The court reversed summary judgment to defendant St. John Knits Inc.- represented at trial and on appeal by the Irvine firm Payne & Fears in a wrongful termination case brought by Behzad Zamani- and remanded the case to the trial court.

When Zamani began working for St. John in 1997 as a head mechanic, he signed a written employment offer which provided that all disputes would be resolved by binding arbitration to the "fullest extent allowed by law."

After St. John terminated Zamani's employment in 2002, he filed suit in Orange Superior Court. St. John raised the arbitration provision as an affirmative defense, but did not file a motion to compel arbitration.

Instead, it "engaged in a campaign to convince Zamani to 'stipulate' to arbitration," Bedsworth said.

During a court hearing in which Zamani appeared in pro per, and stated that he wanted to go to trial, defense counsel asked for "a representation on the record by the plaintiff . . . that he is stating that under no circumstances will he agree to arbitration - that he's waiving his rights to arbitration."

The court then said to Zamani "Sir?" And Zamani replied "I'm refusing the arbitration? . . . Yes." The court then set the matter for trial.

St. John filed a motion for summary judgment which the court granted, stating that "it is undisputable by admissible evidence that . . . all of Zamani's causes of action are subject to final and binding arbitration and Zamani expressly and impliedly waived his right to arbitration."

"Three years ago, in Kalai v. Gray (2003) 109 Cal.App.4th 768, we tried to make it clear that a plaintiff will not be deprived of his right to proceed with his claim in arbitration merely because he first attempted to litigate it in court. As we explained, our Supreme Court had previously stated that a waiver of the right to proceed in arbitration "occurs when the merits of the dispute have been litigated by the parties."

"Unfortunately, our message was apparently not clear to defendant St. John Knits, Inc. (St. John), despite the fact it is represented by the same law firm that represented the prevailing party in Kalai. Or perhaps it was clear, and that is why counsel omitted any mention of Kalai before the trial court in this case.

Noting that St. John used the same authorities the court found unpersuasive in Kalai, Bedsworth said:

"Of course, counsel is always free to disagree with our published opinions (even to disparage them, privately) to distinguish them or perhaps to argue they are inconsistent with other, more persuasive authority. What counsel cannot do is mischaracterize the state of the law."

"To characterize counsel's efforts as disturbing would be mild, and St. John's current efforts to distinguish Kalai in this appeal are no improvement."

Payne and Fears attorney Jane M. Flynn, who worked on the appeal, told the MetNews that she hadn't read yesterday's opinion, but thought Kalai was distinguishable because the plaintiff in that case did nothing more than file suit.

Irvine attorney Sima Fard, who represented Zamani on appeal, was not available for comment.

Mandatory arbitration agreement that limits discovery and caps punitive damages recoverable by employees is unconscionable

Law Reporter, Jun 2000
Ramirez ro. Circuit City Stores, Inc., 90 Cal. Rptr. 2d 916 (Ct. App. 1999).

A California appellate court held an arbitration clause in an employment contract that limits discovery and caps punitive damages is unconscionable.

Here, Ramirez was an equipment installer for Circuit City. To apply for the job, he had to sign an agreement that mandated arbitration of all employment-related disputes with Circuit City in accordance with company rules. Those rules limit discovery and cap punitive damages recoverable by employees.

Ramirez filed suit against Circuit City, alleging that it committed unfair business practices in violation of state statutes and regulations. The trial court denied defendant's motion to compel arbitration, finding the agreement unconscionable.

Affirming, the appellate court noted that unconscionable agreements have both a procedural and a substantive element. The court said the procedural element focuses on two factors: oppression and surprise. Oppression arises from an inequality of bargaining power that results in no real negotiation and an absence of meaningful choice, the court explained. Surprise involves the extent to which the terms of the bargain are hidden in a "prolix printed form" drafted by a party in a superior bargaining position. Substantive unconscionability addresses whether the one-sidedness of an agreement is objectively justified.

Applying this standard, the court noted that plaintiff had no choice but to sign the arbitration agreement if he was to be considered for a job with defendant. The court rejected defendant's argument that plaintiff had a choice not to apply for a job that required signing an arbitration agreement. The court said this argument ignores the realities of the marketplace because persons such as plaintiff applying for an entry-level position presumably need a job, lack much in the way of salable skills, and are unlikely to understand the significance of the rights relinquished by signing the contract. A meaningful choice, the court emphasized, requires more than the choice-for applicants such as plaintiff-between foregoing the possibility of employment or applying for a job and agreeing to what appears to be a fair means of resolving employment-related disputes. Thus, the court concluded, the procedural element of unconscionability exists here.

Further, the court found a high degree of substantive unconscionability in this case. An agreement that requires the weaker party to arbitrate any claims he or she may have but permits the stronger party to seek redress through the courts is presumptively unconscionable, the court said. Here, language in the agreement explaining which disputes are subject to arbitration refers to only an employee's claims but says nothing about defendant's claims or claims against employees.

Comment. But see Majdi v. Circuit City Stores, Inc., No. CV98-4112AAH(CTx) (C.D. Cal. 1998). There, an employee sued Circuit City, alleging wrongful termination and racial discrimination, among other claims. A U.S. district court rejected the contention that defendant's arbitration agreement was unconscionable, holding that plaintiff had a meaningful choice in that he could have chosen to seek work with some other employer instead of signing the agreement. An arbitrator later awarded plaintiff $125,500, plus costs. *Sima Fard, Irvine, Cal., represented plaintiff.

Documents in the Majdi case are available through the Court Documents section in the back of this issue, courtesy of Ms. Fard.

Copyright Association of Trial Lawyers of America Jun 2000
Provided by ProQuest Information and Learning Company. All rights Reserved

Fourth District Blasts Payne & Fears For Failing To Cite Kalai

Remember 24 Hour Fitness, Inc. v. Superior Court (1998) 66 Cal.App.4th 1199, and its arbitration waiver issue? Dead forever is that part of the opinion which defense lawyers (and some trial judges) misquoted to claim that a person cannot demand a court determination of an arbitration agreement's validity without waiving the right to arbitrate should the agreement be found enforceable. Three years ago, in Kalai v. Gray (2003) 109 Cal.App.4th 768, the Fourth District Court of Appeal held that a plaintiff will not be deprived of his right to proceed with his claim in arbitration merely because he first attempted to litigate it in court. The Supreme Court had previously held that a waiver of the right to proceed in arbitration only occurs "when the merits of the dispute have been litigated by the parties" (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180), but the 24 Hour Fitness case suggested that one who "repudiates" the arbitration agreement may never again seek to arbitrate -- an absurd rule that would have rendered any unconscionable arbitration agreement into an ad terrorem clause. Though California law clearly provides parties the right to seek a determination regarding the validity of a contract, including a contract for arbitration, St. John Knits and its counsel, Payne & Fears, claimed that it did not. They cited 24 Hour Fitness and its progeny, Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, but made no mention of Kalai, even though the losing counsel in the Kalai case was Payne & Fears. The Court of Appeal did not appreciate that tactic. We don't know of any sanction being issued, but the opinion contained a number of gems, which, if it is ever published, would make for powerful support of many common employee arguments:

Casiano v. Wet Seal Retail

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

XOCHILT CASIANO,

Plaintiff and Respondent,

WET SEAL RETAIL, INC.,

Defendant and Respondent;

SALLY CHAABAN,

Objector and Appellant.

B207672

(Los Angeles County

Super. Ct. No. BC355626)

APPEAL from a judgment of the Superior Court of Los Angeles County.

Edward A. Ferns, Judge. Reversed and remanded.

Law Offices of Sima Fard and Sima Fard for Objector and Appellant.

Mitchell Silberberg & Knupp, Adam Levin and Tracy L. Cahill for Defendant and Respondent.

Kenneth H. Yoon and Peter M. Hart for Plaintiff and Respondent.

_________________________

A class represented by Xochilt Casiano (Casiano) filed a wage and labor class action against Wet Seal Retail, Inc. (Wet Seal) in Los Angeles County (Casiano action). Five months later, after Wet Seal informally produced discovery, the parties mediated. They negotiated a settlement (settlement), and the settlement was preliminary approved. Subsequently, appellant Sally Chaaban (Chaaban) and three others filed a second class action against Wet Seal in Orange County (Chaaban action). Chaaban objected to the settlement in the Casiano action on myriad grounds. The trial court overruled the objection, approved the settlement and entered judgment in favorof Wet Seal. On appeal, Chaaban seeks a reversal because, among other things, notice sent to the class did not apprise its members of the pending Chaaban action, and the parties did not present the trial court with enough specific information for it to independently evaluate whether the settlement was fair, reasonable and adequate. Further, Chaaban seeks new notice to the class, coordination of the Casiano action with the Chaaban action in Orange County, and an order appointing the named plaintiffs in the Chaaban action as adequate class representatives.

We reverse and remand. The trial court is instructed to conduct a new hearing for final approval of the settlement. At that hearing, it must independently evaluate the strengths and weaknesses of the Casiano action pursuant to Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116 (Kullar).[1] We decline to require new notice of the settlement to the class.[2] We further decline to order the coordination of the Casiano action with the Chaaban action in Orange County.

ACTS

The Casiano action; preliminary approval of settlement

Casiano, an assistant manager at Wet Seal, filed her class action in Los Angeles Superior Court on July 19, 2006, and alleged that Wet Seal miscalculated the overtime rate of pay for nonexempt employees by failing to include bonuses, incentives and other forms of pay in the calculation; it failed to keep accurate records; it failed to ensure that nonexempt managers took meal breaks; and it prevented nonexempt managers from taking rest breaks.

On August 11, 2006, Casiano served Wet Seal with document demands, special interrogatories, and person most knowledgeable deposition notices. Subsequently, the parties tolled all deadlines related to discovery until after submitting to voluntary mediation. Prior to the mediation, Wet Seal supplied class counsel-Kenneth H. Yoon (Yoon) and Peter M. Hart (Hart)-with informal discovery responses. It produced its meal and rest period policies and information about payments made to employees for missed meal periods. Casiano obtained records from the California Labor Commission that included one complaint regarding unpaid meal periods, and three complaints related to overtime pay.

The parties mediated on November 30, 2006, before Gig Kyriacou (Kyriacou), an experienced mediator. The parties reached a settlement that required Wet Seal to make a "basic payment" of $295,000 and announced that class counsel would seek court approval of reasonable attorney fees and costs in the amount of not more than $98,000. It also announced that Casiano would seek court approval of a $7,500 class representative enhancement. The attorney fees, costs and the class representative enhancement were to be taken out of the $295,000.

The settlement identified three types of claimants. "Eligible Claimants" were defined as employees who worked overtime as nonexempt retail store employees for Wet Seal in California at any time since July 19, 2002, and received incentives, bonuses, or commissions. "Supplemental Claimants" came in two types. The first type included employees who earned a bonus, incentive or commission that was not reflected in their paystubs. The second type included nonexempt managers "who missed a meal period or [were] not provided a rest break at any time since July 1, 2005[,] and did not receive an additional hour of pay as a result." After the attorney fees and costs and a service fee was satisfied from the basic payment of $295,000, the eligible claimants were entitled to a portion of the remainder. Supplemental claimants were entitled to receive $10.

The settlement provided that each class member who did not opt out of the settlement released Wet Seal and its affiliates, subsidiaries, parents, predecessors, and successors from certain claims.

On April 26, 2007, the parties filed a joint motion seeking preliminary approval of the class settlement and notice. The motion was granted on May 18, 2007, subject to objections at the final approval hearing. The final approval hearing was set for November 30, 2007. The trial court ordered that notice be sent to the class members by July 2, 2007. Casiano was confirmed as the class representative. The trial court's order also provided: "Pending final determination as to whether the settlement . . . should be approved, [Casiano] and Class members . . . shall not institute or prosecute any claims or actions against [Wet Seal], its directors, officers, employees, agents, and anyone acting in concert with them, or any parent, related or affiliated, predecessor or subsidiary corporation which have been or could have been asserted in the Class Action based upon the acts . . . alleged."

The Chaaban action; communications between counsel

After months of investigation, attorney Sima Fard (Fard) filed the Chaaban action against Wet Seal in Orange County on May 25, 2007.[3] The complaint included rest and meal claims on behalf of all of Wet Seal's nonexempt employees, not just nonexempt managers.[4] Fard began communicating with one of Wet Seal's attorneys, Adam Levin (Levin), on June 15, 2007. In their first telephone conversation, Levin offered to mediate but did not mention that some of the claims being pursued in the Chaaban action had been settled in the Casiano action.

When Fard found out about the Casiano action, she told Levin he should have filed a notice of related cases and informed her about it before he sent out notices to the class. She offered to stipulate to new notice to the class to carve out the rest and meal portion of the settlement as unfair because Murphy v. Kenneth Cole Productions, Inc. (2007) 40 Cal.4th 1094 (Murphy) was issued on April 16, 2007, and held that rest and meal claims are subject to a four-year statute of limitations rather than a one-year statute of limitations.[5] If Levin was amenable to sending new notice, Fard said she would share the cost. Levin was not amenable.

Notice to the class

On July 27, 2007, class notice was sent to 2,666 eligible claimants, 3,777 of the first type of supplemental claimants, and 67 of the second type of supplemental claimants. There were a total of 6,510 potential class members identified by the claims administrator.

The four-page notice was directed at all "non-exempt retail store employees" employed by Wet Seal in California from July 19, 2002, to May 18, 2007. Recipients were informed that the Casiano action asserted various wage and hour claims "based on the allegations that [Wet Seal] failed to pay overtime on incentives, bonuses, and commissions earned by Wet Seal's non-exempt retail store employees in California and that [Wet Seal] failed to provide meal and rest periods to its non-exempt managerial retail store employees in California in violation of Labor Code [s]ection 226.7 and certain provisions of the applicable Wage Order of the Industrial Welfare Commission. [Casiano] seeks on behalf of herself and the Settlement Class overtime and other compensation, statutory penalties, and other relief." The notice defined eligible claimants and supplemental claimants. It stated that eligible claimants who filed a claim would receive a "pro rata portion of the Basic Payment" of $295,000 and supplemental claimants who filed a claim would receive $10. Supplemental claimants were defined to include nonexempt managers who missed a meal or rest period from July 1, 2005, to May 18, 2007. The notice stated that non-opt out class members were releasing certain claims.

The notice explained that the basic payment of $295,000 would be used to cover attorney fees for class counsel and a payment to Casiano, the class representative. It also explained that Wet Seal would not object to class counsel receiving up to 33.2 percent of the $295,000. Class members were told how to opt out, file a claim, and object, and were told the date of the final fairness hearing.[6] Last, they were notified they could object through an attorney.

Chaaban's objection to the settlement; notice of related cases

On August 24, 2007, Chaaban filed an objection to the settlement. She argued that the evidence did not permit the trial court to evaluate whether the settlement was fair; the settlement was unfair because it sought recovery for one year of wages for rest and meal breaks instead of four years of wages pursuant to Murphy;[7] Casiano was not an adequate class representative; the notice provided to the class was misleading, vague and deficient; and the claim period was inadequate because the notices were not sent out until July 27, 2007, and the deadline for filing a claim or objection was August 27, 2007.

Chaaban filed a notice of related cases in the Casiano action. She indicated that the Chaaban action had been designated as complex. The trial court ruled that the cases were not related.

Final approval of the settlement

Casiano filed a motion for final approval of the settlement, an award of attorney fees and costs, and a class representative enhancement. According to Casiano: The claims administrator received 581 valid claim forms from eligible claimants, 200 valid claim forms from the first type of supplemental claimant, and four valid claim forms from the second type of supplemental claimant. Only 12 class members submitted valid requests to opt out of the class. The eligible claimants would receive $300 each. The proposed order granting final settlement approval and proposed judgment released all class meal and rest period claims, not just those arising after July 2005.

Yoon and Hart provided declarations in support of the motion. They explained that they had received informal discovery from Wet Seal, and that they believed that the settlement was fair to the class. An attorney for Wet Seal, Tracy L. Cahill (Cahill), also provided a declaration. In a supplemental opposition, Chaaban objected to the expanded release in the proposed judgment for the rest and meal period claims.

The trial court overruled Chaaban's objection and ruled that the settlement was fair and reasonable to the class.

Judgment was entered. It released all covered claims of class members and did not limit the release of meal and rest period claims to those arising in July 2005 and after. This appeal followed.

DISCUSSION

We review a trial court's final approval of a class action settlement under the deferential abuse of discretion standard. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1802 (Dunk).)

Chaaban argues that the judgment must be reversed because the class was not notified of the Chaaban action and Casiano was not an adequate class representative. Chaaban contends that the class notice was inadequate because it violated due process, and it did not provide proper notice of the release. According to Chaaban, the trial court abused its discretion when it granted final approval of the settlement because it lacked sufficient information to adequately assess the fairness of the settlement or the inherent risk of litigation, and it did not adequately investigate the circumstantial evidence of collusion and reverse auction.[8] Additionally, Chaaban complains that Yoon and Hart should not have been awarded $98,000 in attorney fees because they duplicated effort and the settlement was hastily negotiated. Finally, Chaaban suggests but does not argue that the cases should have been deemed related.

We address certain of these issues below.

1. The record was not sufficiently developed for the trial court to independently assess the settlement's fairness; the trial court abused its discretion when it granted final approval.

In Chaaban's view, the record below was not sufficiently developed to permit the trial court to independently assess the settlement's fairness, and the trial court abused its discretion by granting final approval.

We agree.

When deciding whether to approve a class settlement, a 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. [Citation.] The list of factors is not exhaustive and should be tailored to each case." (Dunk, supra, 48 Cal.App.4th at p. 1801.)

We presume that a class action settlement is fair when: "(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. [Citation.]" (Dunk, supra, 48 Cal.App.4th at p. 1802.) Moreover, if the record adequately permits the parties to reach an objective opinion of the probabilities of success, form an educated guess regarding the cost, complexity and length of litigation, and consider other relevant factors, approval of the settlement will upheld. (Ibid.)

First under scrutiny are the declarations of Yoon and Hart.

They declared that they propounded discovery and documents were informally produced by Wet Seal, but they did not provide any specifics regarding what the discovery revealed. At most they said that Wet Seal produced "data on the class size, current and former employees, and class damages." They offered their opinion that the class claims were meritorious and could be successfully litigated, but that the inherent uncertainty of litigation posed a risk to the class. They further opined that the settlement was fair, reasonable and adequate in view of the discovery, mediation and negotiations between the parties.

Next up, we examine Cahill's declaration. She declared that Wet Seal provided Casiano with its meal and rest break policies, and information about the payments it made to employees for missed meal periods.

Missing from these declarations is raw data that would help the trial court independently assess the strength and value of the Casiano action. There are three types of claims: (1) miscalculation of overtime reflected in pay stubs; (2) miscalculation of overtime not reflected in pay stubs; and (3) failure to provide nonexempt managers with meal and rest breaks. These claims raise questions. How many overtime hours did Wet Seal miscalculate? How many rest and meal periods were employees denied? Of those rest and meal periods denied, how many were later compensated, as stated by Cahill? What information was provided to Kyriacou? How was the $295,000 figure derived? What defenses were available to Wet Seal, and did it have a chance of prevailing on those defenses? The record does not permit an evaluation of the cost, complexity and potential length of litigation.

These declarations call to mind the deficiency of the declarations in Kullar. After reviewing the declarations at issue in Kullar, the appellate court stated: "Class counsel asserted that information had been exchanged informally and during the course of the mediation session, but their declarations provided no specificity. The only specific was the repeated reference in the moving papers to several employee manuals that had been produced stating company policy simply as follows: 'Rest breaks and meal periods are scheduled based on business levels, hours worked and applicable state laws.' Whatever information may have been exchanged during the mediation, there was nothing before the court to establish the sufficiency of class counsel's investigation other than their assurance that they had seen what they needed to see. The record fails to establish in any meaningful way what investigation counsel conducted or what information they reviewed on which they based their assessment of the strength of the class members' claims, much less does the record contain information sufficient for the court to intelligently evaluate the adequacy of the settlement. Assuming that there is a 'presumption' [of fairness] . . . as Dunk asserts, its invocation is not justified by the present record." (Kullar, supra, 168 Cal.App.4th at p. 129.)

Kullar went on to explain that the trial court is obligated to act as the guardian of the class. As a result, it must independently analyze the case. For it to do so, "'the factual record before the . . . court must be sufficiently developed.' [Citation.]" (Id. at p. 130.) For example, in Dunk, "the trial court was made aware of the maximum damages that each class member had sustained and the value of the coupons that each class member would receive under the settlement, as well as of the particular issues that the plaintiffs needed to overcome in order to prevail in litigation. [Citation.]" (Kullar, supra, at p. 130.)

The evidence presented to the trial court in 7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135 (7-Eleven) was even more extensive than the evidence presented in Dunk. (Kullar, supra, 168 Cal.App.4th at p. 130.) The objectors in 7-Eleven acknowledged that the settlement was preceded by exhaustive discovery over four and half years of litigation. During a three-day evidentiary hearing, the parties informed the trial court "of the details and maximum dollar value of the plaintiffs' various claims, the defenses to those claims, and the manner in which counsel evaluated the strengths of each of the claims." (Kullar, supra, at p. 131.) The trial court reviewed the contract provisions in dispute, and it considered class counsel's evaluation of the merits of the claims. It expressed its doubt as to whether the evidence showed a breach of contract. (Ibid.)

In contrast, the trial court in Kullar was not "presented with data permitting it to review class counsel's evaluation of the sufficiency of the settlement, but felt this was precluded because the supporting information was exchanged in the course of mediation." (Kullar, supra, 168 Cal.App.4th at p. 131.) Kullar disagreed, finding sufficient information could have been presented. As it explained, the trial court "'must stop short of the detailed and thorough investigation that it would undertake if it were actually trying the case,' but nonetheless it 'must eschew any rubber stamp approval in favor of an independent evaluation.' [Citation.]" (Id. at p. 130.) Kullar held that the "trial court's approval of the settlement agreement must be vacated and the matter remanded for further proceedings. On remand, the settling parties should be given the opportunity to supplement their showing in support of the settlement." (Id. at p. 132.) This holding is just as applicable here.

Before a trial court can "exercise the power of judicial discretion, all material facts and evidence must be both known and considered, together with legal principles essential to an informed, intelligent and just decision. [Citation.]" (People v. Lara (2001) 86 Cal.App.4th 139, 165.) Here, the trial court was not presented with all the material facts and evidence. Thus, they were not considered. The failure to consider all relevant factors pertinent to a decision is an abuse of discretion. (Visco v. Abatti (1983) 144 Cal.App.3d 904, 907.)[9]

2. Adequacy of Casiano as class representative.

Chaaban contends that Casiano is not an adequate class representative because she only represented nonexempt managers. We cannot concur.

To be adequate, "the class action proponent must show it has claims or defenses that are typical of the class, and it can adequately represent the class." (J.P. Morgan & Co. Inc. v. Superior Court (2003) 113 Cal.App.4th 195, 212.) If there is a conflict that goes to the heart of the litigation, the proponent's claim to class representative status will be defeated. The class representative must be part of the class and have the same injury as the class members. (Ibid.) The trial court has discretion to determine the adequacy of the class representative. (Ibid.)

Casiano had all the claims covered by the settlement. Regarding overtime, she was in the same position as the nonmanager members of the class. As a result, we do not perceive an intraclass conflict. In her opening brief, Chaaban argues that there is a conflict "between the interest of Casiano as a non-exempt manager versus non-managers whose potential recovery of unpaid overtime was much greater." But Chaaban did not cite any evidence supporting her contention that nonmanagers had a greater potential recovery for unpaid overtime. Her argument invites us to engage in speculation. We will not do so.

Finally, she states that the settlement "failed to address the interests of the various subgroups." Because she did not elaborate, we are not privy to the particulars of her argument and cannot reach it. More importantly, she does not contend that the trial court failed to consider the relevant factors or that it was given information that impugned Casiano as a representative.

We conclude that the trial court did not abuse its discretion when it confirmed Casiano as class representative.

3. All but one of Chaaban's attacks on the class notice lack merit; upon remand, the trial court should consider whether it is fair and reasonable for the class to release three years of meal and rest period claims.

Chaaban claims that the class should have received notice of the Chaaban action. In addition, she claims that class notice did not satisfy due process of law. She also claims that the notice incorrectly stated that the release period for rest and meal claims was July 1, 2005, to May 18, 2007; it did not include an opt out form; it gave unsophisticated employees less than 30 days to consider the settlement; the claim form approved by the trial court was not disseminated to the class members, and there was no evidence of what was disseminated.

We decline to consider whether the class should have received notice of the Chaaban action. This argument was not raised below and was waived. If we were to reach the merits of the argument, we could reject it. Chaaban relies on Trotsky v. Los Angeles Fed. Sav. & Loan Assn. (1975) 48 Cal.App.3d 134 (Trotsky). It held that omitted notice of a competing class action required reversal on appeal because knowledge of "another purported class action . . . would have been highly significant to the members of [a] . . . [subclass] in deciding whether they should object to the Trotsky settlement or request exclusion from the class." (Id. at p. 152.) The lack of notice of the other action, "prevented a full and fair consideration of the adequacy of the settlement." (Id. at p. 145.) Trotsky is distinguishable. The competing action in Trotsky was filed before preliminary approval. Here, the competing action was filed after preliminary approval, and after class notice had been approved. And, insofar as the Casiano action and Chaaban action overlap as to meal and rest period claims, the Chaaban action was filed in violation of the trial court's order prohibiting the class members from filing independent actions involving the same claims. On these facts, we do not read Trotsky as requiring publication of new notice.

As to the adequacy of the notice in general, the record fails to disclose an abuse of discretion. "The notice must 'express no opinion on the merits of the settlement' and, in determining its particulars, the trial court 'has virtually complete discretion as to the manner of giving notice to class members.' [Citation.]" (7-Eleven, supra, 85 Cal.App.4th at p. 1164.) Notice is adequate if it fairly apprises the prospective members of the class of the terms of the proposed settlement and the options that are open to them in connection with the proceedings. (Ibid.)

The class was informed that they would receive a portion of the $295,000 payment on a pro rata basis if they were eligible claimants and $10 if they were supplemental claimants. When the payout to each class member depends on how many submit claims, it is sufficient if the class is apprised of the aggregate amount available that will be used to fund the claims. (Marshall v. Holiday Magic, Inc. (9th Cir. 1977) 550 F.2d 1173, 1178 (Marshall).) In addition, the notice sent to the class members contained information on how to opt out, file a claim, or object. The release was elucidated, and the class members were apprised of the attorney fee award and of the class representative enhancement that were being sought.

Next, Chaaban argues that the class was not provided with sufficient time to respond to the notice. Citing Milstein v. Werner (1972 S.D.N.Y.) 57 F.R.D. 515 (Milstein), she argues that the class should have been given 38 days to opt out, file a claim or object. This argument is unavailing. There is no particular amount of time that is required for class notice. As stated in 7-Eleven, the trial court has almost complete discretion as to the manner of giving notice. Though the class members may not have been particularly sophisticated, they presumably knew whether they worked overtime or missed meal and rest periods. This case is akin to Marshall. The class members were participants in a pyramid scheme and knew the issues. Notice was mailed 26 days before the opt out deadline. The court held that notice was "more than adequate. [Citation.]" (Marshall, supra, 550 F.2d at p. 1178.) Thus, we cannot say that class members needed more time to decide how to respond to the settlement. Our conclusion is not altered by the fact that class members may have been seasonal hires.

Milstein, a nonbinding federal case, does not change our analysis. It involved notice to shareholders that a complex derivative lawsuit involving corporate fraud, corporate waste and violation of securities laws was being settled. (Milstein, supra, F.R.D. at p. 518.) The shareholders were sent an eight-page printed brochure 38 days before the approval hearing. Even though the litigation was complex, the court concluded that notice was ample. (Ibid.) Milstein does not dictate a different timeline for class notice from the one adopted below. Notice sent 30 days before the claim filing deadline enabled the class members to make a rational decision regarding a settlement involving issues far less complex that those in Milstein.

Alternatively, Chaaban suggests that notice was defective because she was provided with a form for only one type of claim covered by the settlement instead of all three types. The problem for Chaaban is that she failed to cite law requiring that particular claim forms be provided. (Dills v. Redwood Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [an appellate court will not develop an appellant's argument].) While it would have been reasonable for the trial court to require that class members receive claim forms for each of the three types of claimants, we cannot say that it abused its discretion in not doing so. Class members with multiple claims had enough information to submit appropriate claims.

Though Chaaban contends that the class members should have been provided with an opt out form, California Rules of Court, rule 3.769(f) only requires notice of the terms of a settlement and an explanation of how to file an objection. And, as Wet Seal points out, 12 class members opted out even though they were not sent opt out forms. This indicates that the class members were capable of opting out even though they had to fashion their own response to the trial court.

Chaaban also complains that the settlement included all employees instead of only nonexempt managers. We view this as ancillary to her complaint that Casiano was not an adequate class representative. That issue has been dealt with, so we move on to Chaaban's complaint that the settlement released all class members who did not opt out. She did not, however, cite any law requiring a reversal, nor could she. The United States Supreme held that an opt out procedure satisfies due process. (Phillips Petroleum Co. v. Shutts (1985) 472 U.S. 797, 812.)

Finally, Chaaban complains that the judgment contained a broader release of the meal and rest period claims than the one stated in the settlement and contemplated by the Casiano action complaint. In other words, nonexempt managers in the class were told that the settlement covered meal and rest period claims arising in July 2005. But the release set forth in the judgment, in practical effect, released meal and rest period claims extending to July 2003.[10] This is cause for concern. As stated by Trotsky, "Any attempt to include in a class settlement terms which are outside the scope of the operative complaint should be closely scrutinized by the trial court to determine if the plaintiff genuinely contests those issues and adequately represents the class." (Trotsky, supra, 48 Cal.App.3d at p. 148.) Upon remand, we direct the trial court to consider the scope of the release as to meal and rest period claims when determining whether the settlement was fair and reasonable to the class.

4. The objection to the attorney fee and the challenge to the ruling on the notice of related cases were waived.

Chaaban failed to object below that the attorney fee was improper. We will not consider this issue for the first time on appeal. (See Doers v. Golden Gate Bridge Etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1 (Doers) ["'[I]t is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial"].)

In the statement of facts in Chaaban's opening brief, she impliedly argues that the trial court erred by not deeming the Casiano action and the Chaaban action related under the Superior Court of Los Angeles County, Local Rules, rule 7.3(f). But she did not analyze the issue in her discussion of the legal issues. "It is not our responsibility to develop an appellant's argument." (Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1206, fn. 11.) In particular, she does not argue that the trial court's refusal to deem the cases related pursuant to California Rules of Court, rule 3.300(a) mandates reversal of the judgment. Regardless, that argument is unavailable. Chaaban indicated that the Chaaban action was designated complex, and California Rules of Court, rule 3.300(h)(1), which permits a trial court to order cases related, does not apply to complex cases. Further, she does not explain why the lack of formal coordination pursuant to California Rules of Court, rule 3.300(h)(2) was error. We note that if both cases were complex, a petition for coordination had to be submitted to the Chairperson of the Judicial Council pursuant to Code of Civil Procedure section 404. If neither case was complex, then Chaaban had to make a motion for coordination pursuant to Code of Civil Procedure section 403. There is no indication in the record that either procedure was followed.

5. We decline to order coordination of the Casiano action and Chaaban action in Orange County.

In Chaaban's statement of the case, she asks us to remand this matter with directions to coordinate the Casiano action with the Chaaban action in Orange County. But she did not cite any law requiring or permitting the relief she seeks. Because her request is not supported by case authority, we deem it waived. (Sprague v. Equifax, Inc. (1985) 166 Cal.App.3d 1012, 1050.)

DISPOSITION

The judgment is reversed and remanded. The trial court must conduct a new hearing for final approval of the settlement to independently evaluate the strengths and weaknesses of the settlement pursuant to Kullar, and to evaluate the fairness of releasing meal and rest period claims arising prior to July 2005 even though the notice indicated that those claims were not released.

Chaaban shall recover her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS .

_________________________, J.

ASHMANN-GERST

We concur:

__________________________, P. J. __________________________, J.

BOREN DOI TODD

[1] We asked for and received letter briefs from the parties discussing the impact of Kullar on this case.

[2] But if the trial court concludes that the settlement is not fair, and if the parties reach a new settlement, new notice will be required.

[3] In an objection to Fard's declaration, Casiano claimed that the Chaaban action was filed on May 22, 2007. The record does not contain a copy of the complaint in the Chaaban action. We cannot independently verify when it was filed. The specific date does not impact our analysis.

[4] As stated by the parties, the Casiano action and Chaaban action overlap only to the extent that they both assert claims on behalf of nonexempt managers for missed meal and rest periods. Because the pleading in the Chaaban action is not part of the record, we must accept the parties' representation.

[5] Fard presumed that Murphy held that the statute of limitations was four years. But Murphy stated: "We conclude that the [meal and rest period] remedy provided in Labor Code section 226.7 . . . is governed by a three-year statute of limitations." (Murphy, supra, 40 Cal.4th at p. 1099.) Any business action that violates the Labor Code "'through failure to pay wages is, by definition . . . , an unfair business practice'" covered by the unfair competition law set forth in section 17200 et seq. of the Business and Professions Code. (Grodensky v. Artichoke Joe's Casino (2009) 171 Cal.App.4th 1399, 14271428, fn. 5.) A claim for restitution under unfair competition law is subject to a four-year statute of limitation. (Ibid.)

[6] Chaaban contends on appeal that the class did not receive the notice approved by the trial court. But the notice Chaaban declared that she received is identical to the proposed class notice.

[7] In other words, Chaaban argued that the settlement was unfair because it deprived nonexempt managers a recovery for three years of meal and rest period claims from July 2002 to July 2005.

[8] By reverse auction, Chaaban refers to a situation "when 'the defendant in a series of class actions picks the most ineffectual class lawyers to negotiate a settlement with in the hope that the [trial court] will approve a weak settlement that will preclude other claims against the defendant.' [Citation.]" (Negrete of North America v. Allianz Life Ins. Co. (9th Cir. 2008) 523 F.3d 1091, 1099.)

[9] Sutter Health Uninsured Pricing Cases (2009) 171 Cal.App.4th 495, cited by the parties at oral argument, does not change our analysis. In that case, an uninsured class of plaintiffs sued a health care network and alleged that it denied them discounts it granted to insured patients. The parties entered a settlement that ended price discrimination and provided class members with refunds, discounts, and reductions on unpaid bills. In some cases, class members would receive free care. The retrospective relief was worth $276 million. Further, the network agreed to limit its collection practices, provide free financial counseling and flexible payment terms, and expand its charitable care program. Lawyers with a weaker, competing case objected. The settlement was approved and the Court of Appeal affirmed. On appeal, the objector argued that the class action settlement should not have been approved because it violated state law, the negotiated discount was unfair as a matter of law, and the attorney fees were undocumented and excessive. (Id. at p. 504.) The adequacy of evidence supporting the trial court's evaluation of the settlement was not challenged.

[10] Chaaban suggested that it extended to meal and rest period claims to July 2002 because she argued that Murphy held that meal and rest period claims were subject to a four-year statute of limitations. As previously stated, only an unfair competition claim could extend that far back.

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