Khayo Sishi et al. v. Eskaton Properties Inc., et al.,

This Notice explains your right to share in the monetary proceeds of this Settlement, exclude yourself (“opt out”) of the Settlement, or object to the Settlement. If you object to the Settlement, you cannot opt out of the Settlement, and you will be bound by the terms of Settlement in the event the Court denies your objection.

The Superior Court of California, County of Alameda, has preliminarily approved the Settlement as fair and reasonable. The Court will hold a Final Approval Hearing on July 28, 2023 at 9:30 a.m., before the Honorable Eumi Lee at the Hayward Hall of Justice, 24405 Amador Street, Hayward, CA 94544 in Department 512.

This lawsuit alleges that individuals whom Defendants and/or Releasees employed as hourly non-exempt employees between June 2, 2017 and June 11, 2022 were not compensated for all hours worked, including at the minimum wage and overtime rates, were not provided complaint meal and rest breaks, were not reimbursed for all necessary business expenses, were not compensated for all costs of mandatory physical exams and/or drug testing, were not compensated for reporting time pay, were not compensated for sick time at the appropriate rate, were not provided written notice of material terms of employment, were not provided all wages during employment and at separation from employment, and were not provided timely and compliant itemized wage statements.  This lawsuit seeks recovery of unpaid wages, statutory damages, civil penalties under the California Labor Code Private Attorneys General Act (“PAGA”), restitution, interest, attorneys’ fees and costs. The claims in this lawsuit are brought under California law.   

Defendants contend that they have strong legal and factual defenses to these claims, but they recognize the risks, distractions, and costs associated with litigation. Defendants contend that the wage and hour policies and practices at issue are lawful and have been lawful throughout the relevant time period.  Defendants also contend that Plaintiffs’ claims do not meet the requirements for class certification.

This Settlement is the result of good faith, arm’s length negotiations between Plaintiffs and Defendants, through their respective attorneys. Both sides agree that in light of the risks and expenses associated with continued litigation, this Settlement is fair and appropriate under the circumstances, and in the best interests of the Settlement Class Members. This Settlement is a compromise and is not an admission of liability on the part of Defendants. 

The Court has not ruled on the merits of Plaintiffs’ claims or Defendants’ defenses.

The Gross Settlement Amount (GSA) is $5,500,000.00. The GSA will mostly be distributed to the current and former employees who meet the definitions for participating in the Settlement, but it will also be used to pay for attorneys’ fees and costs awarded by the Court, any enhancement payments to Plaintiffs that are awarded by the Court, all Settlement Administrator’s costs, and a payment to the California Labor and Workforce Development Agency (LWDA) that is required by the PAGA.

The Settlement Administrator’s costs are estimated to be no more than $60,000, and this amount will be paid from the GSA. 

The Named Plaintiffs will ask the Court to award them in the amounts of up to $10,000 to Plaintiff Khayo Sishi and up to $5,000.00 each to Plaintiffs Sandeep Purewal, Cherra Redd, and Zenaya White for their services to the Settlement Class, paid from the GSA.

The attorneys for Plaintiffs and the Settlement Class (referred to as “Class counsel”) will ask the Court to award them up to 33% of the GSA, which is $1,833,333.33, to compensate them for their services in this matter. Class Counsel will also request reimbursement for their actual attorneys’ costs, which are currently approximately $29,242.97 (see Section 9 below), from the GSA. Class Counsel will file a motion with the Court setting forth the bases for their requested costs and fees.

The payment to the LWDA and Aggrieved Employees in connection with the PAGA component of the Settlement will be $55,000.00, and this payment will be paid from the GSA. 
After deductions of these amounts, what remains of the GSA (the total of the “Net Settlement Amount” and “Net PAGA Amount”) will be available to pay monetary Settlement Awards to Plaintiffs, Aggrieved Employees, and all Class Members who do not opt out of the Settlement Class (collectively, “Settlement Class Members”).

All Settlement Award determinations will be based on Defendants’ records. Payments to Settlement Class Members will be calculated on the number of eligible workweeks. Each Settlement Class Members will be eligible to receive a pro rata share of the Net Settlement Amount based on the total number of eligible workweeks that the Settlement Class Members worked for Defendants during the relevant periods, calculated as follows:

1. 1. For each workweek, or fraction thereof, during which the Settlement Class Member worked for either Defendants at any time between June 2, 2017 and June 11, 2022, he or she shall be eligible to receive a pro rata portion of the Net Settlement Amount based on the number of workweeks the Class Member worked. Each workweek will be equal to one (1) settlement share.
   2. The total number of settlement shares for all Settlement Class Members will be added together and the resulting sum will be divided into the Net Settlement Amount to reach a per share dollar figure. That figure will then be multiplied by each Settlement Class Members’ number of settlement shares to determine the Settlement Class Members’ pro rata portion of the Net Settlement Amount.

Additionally, Aggrieved Employee who worked for Defendants, including Releasees, in California any time between March 29, 2020 and June11 2022, he or she shall be eligible to receive a pro rata portion of the Net PAGA Amount (i.e., $13,750.00). The total number of pay periods for all Aggrieved Employees will be divided into the Net PAGA Amount to reach a per share dollar figure. That figure will then be multiplied by each Aggrieved Employee’s number of pay periods to determine the Aggrieved Employees’ pro rata portion of the Net PAGA Amount. The resulting Net PAGA Amount per Aggrieved Employee, if any, will be added to his or her share of the Net Settlement Amount, to determine the Settlement Award for that individual.

For tax reporting purposes, Settlement Awards will be allocated as follows: any portion of each Settlement Award that is provided from the Net PAGA Amount shall be allocated as penalties. For the remainder of each Settlement Award, one-fourth (1/4) shall be allocated to wages and three-fourths (3/4) shall be allocated to penalties and interest. None of the Parties or attorneys makes any representations concerning the tax consequences of this Settlement or your participation in it.  Settlement Class Members should consult with their own tax advisors concerning the tax consequences of the Settlement. 

It is your responsibility to keep a current address on file with the Settlement Administrator to ensure receipt of your monetary Settlement Award. If you fail to keep your address current, you may not receive your Settlement Award.

Upon Final Approval of the Settlement Agreement and funding of the total settlement amount, all Plaintiffs, Class Members, and Aggrieved Employees release claims as follows (“Released Claims”) against Defendants, their present and former parent companies, subsidiaries, related or affiliated companies, and their shareholders, officers, directors, employees, agents, attorneys, insurers, successors and assigns, and any individual or entity that could be liable for any of the Released Claims, including Eskaton, Inc., Eskaton Village-Grass Valley, Inc., Eskaton Village-Placerville, Inc., Eskaton Village – Roseville, Inc., Eskaton Lodge Granite Bay, Inc., Eskaton Fountainwood Lodge, Inc., The Reutlinger Community, Inc., and O’Connor Woods Housing Corporation, Inc., and Defendants’ Counsel (collectively, the “Releasees”):

• Plaintiffs and Class Members release Defendants and Releasees from any and all claims that are or could have been alleged in the operative complaints pending against Defendants and Releasees, and the Second Amended Complaint that the Parties will stipulate to in the Action, including but not limited to claims under California Labor Code §§ 201-204, 210, 216, 218, 218.5, 222.5, 226, 226.3, 226.7, 246, 248.5, 256, 510, 512, 516, 558, 558.1, 1021.5, 1174, 1174.5, 1182.12, 1185, 1194, 1194.2, 1197, 1197.1, 1198, 1198.5, 1199, 2800, 2802, and 2810.5, reporting time wages, and violations of California Unfair Competition Laws (Cal. Bus. & Prof. Code §§ 17200, et seq.), and any amendment(s) thereto based on the factual allegations contained therein.

Plaintiffs and the Aggrieved Employees, on behalf themselves and the Labor & Workforce Development Agency (“LWDA”), fully release the claims and rights to recover civil penalties against Defendants and Releasees on behalf of the LWDA and Aggrieved Employees to recover civil penalties, costs, expenses, attorneys’ fees, or interest for any Labor Code or Wage Order violation alleged or that could have been alleged in any Complaint or PAGA letters, including but not limited to the Second Amended Complaint and amended PAGA letter, in the Action, including violations of the following: California Labor Code §§ 201-204, 210, 216, 218, 218.5, 222.5, 226, 226.3, 226.7, 246, 248.5, 256, 510, 512, 516, 558, 558.1, 1021.5, 1174, 1174.5, 1182.12, 1185, 1194, 1194.2, 1197, 1197.1, 1198, 1198.5, 1199, 2800, 2802, 2810.5, and reporting time wages. The release period for PAGA claims runs from March 29, 2020 to June 11, 2022.

• Do Nothing: If you are a Class Member and you do not timely and validly opt-out, you will automatically become a part of the Settlement Class and you will receive your prorated Settlement Award. By doing nothing you will be bound by the Settlement including its release provisions.

• Opt-Out: If you are a Class Member and you do not wish to be bound by the Settlement, you must submit a written exclusion from the Settlement (“opt-out”), postmarked by May 2, 2023. The written request for exclusion must contain your full name, address, telephone number, email address (if applicable), last four digits of your social security number, and must be signed individually by you. No opt-out request may be made on behalf of a group. The opt-out request must be sent by mail to the Settlement Administrator at Khayo Sishi v. Eskaton Properties Settlement Administrator, P.O. Box 10269 Tallahassee, FL  32302-2269. Any person who requests exclusion (opts out) of the settlement will not be entitled to any Settlement Award and will not be bound by the Settlement Agreement or have any right to object, appeal or comment thereon.

• Object: If you are a Class Member and wish to object to the Settlement, you must submit a written statement objecting by May 2, 2023 to the Settlement Administrator at Khayo Sishi v. Eskaton Properties Settlement Administrator, P.O. Box 10269 Tallahassee, FL  32302-2269. The statement must state the factual and legal grounds for your objection to the settlement. The statement must state your full name, address, telephone number, and email address (if applicable), and must be signed by you. 

If you mail a written objection, you may also, if you wish, appear at the Final Approval Hearing to discuss your objection with the Court and the parties to the lawsuit. Your written objection must state whether you will attend the Final Approval Hearing, and your written notice of your intention to appear at the Final Approval Hearing must be filed with the Court and served upon Class Counsel and Defendants’ counsel on or before the Notice Deadline, May 2, 2023. To be heard at the Final Approval Hearing you must also not opt out of the Settlement. If you wish to object to the Settlement but fail to return your timely written objection in the manner specified above, you shall be deemed to have waived any objection and shall be foreclosed from making any objection (whether by appeal or otherwise) to the Settlement. The postmark date of mailing to the Class Counsel and Defendants’ Counsel shall be the exclusive means for determining that an objection is timely mailed to counsel. Objections shall only be considered if the Settlement Class Member has not opted out of the Settlement. The failure to submit a written objection as a prerequisite to appearing in court to object to the settlement may be excused upon a showing of good cause.

• No. Your decision as to whether or not to participate in this lawsuit will in no way affect your work or employment with Defendants or future work or employment with Defendants. It is unlawful for Defendants to take any adverse action against you as a result of your participation in this lawsuit. In fact, Defendants encourage you to participate in this Settlement.

• Plaintiffs and the Settlement Class Members are represented by the following attorneys acting as Class Counsel:

   

  Carolyn H. Cottrell
  Ori Edelstein
  Michelle S. Lim
  Kristabel Sandoval
  SCHNEIDER WALLACE
  COTTRELL KONECKY LLP
  2000 Powell Street, Suite 1400
  Emeryville, CA 94608
  Telephone: (800) 689-0024
  Facsimile: (415) 421-7105
  ccottrell@schneiderwallace.com
  oedelstein@schneiderwallace.com
  mlim@schneiderwallace.com 
  ksandoval@schneiderwallace.com 

   

  Edwin Aiwazian
  Lawyers for Justice, PC
  410 West Arden Avenue, Suite 203
  Glendale, California 91203
  Tel: (818) 265-1020 / Fax: (818) 265-1021

  Robert Drexler
  Robert.drexler@capstonelawyers.com 
  Molly DeSario
  Molly.desario@capstonelawyers.com 
  Jonathan Lee
  Jonathan.Lee@capstonelawyers.com
  Capstone Law APC
  1875 Century Park East, Suite 1000
  Los Angeles, CA 90067
  Telephone: (310) 556-4811
  Facsimile: (310) 943-0396

Class Counsel will be paid from the Gross Settlement Amount of $5,500,000. You do not have to pay the attorneys who represent the Class Members. The Settlement Agreement provides that Class Counsel will receive attorneys’ fees of up to one-third (1/3) of $5,500,000 (i.e., $1,833,333.33) plus their out-of-pocket costs, currently estimated at approximately $29,242.97. Class Counsel will file a Motion for Attorneys’ Fees and Costs with the Court. The amount of attorneys’ fees and costs awarded will be determined by the Court at the Final Approval Hearing.

If you have questions about the Notice or Settlement, or if you did not receive the Notice in the mail and you believe that you a Class Member, you should contact the Settlement Administrator or Class Counsel.

The information in this website is only a summary. For the precise terms and conditions of the Settlement, please see the Settlement Agreement available in the Documents section of this website, by contacting the Settlement Administrator at (833) 616-0442, by contacting Class Counsel toll-free at (800) 689-0024, or by accessing the Court docket in this case for a fee through the Court’s electronic public records system at https://publicrecords.alameda.courts.ca.gov/prs.