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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
10
11
12 UTILITY TREE SERVICE WAGE AND HOUR JUDICIAL COUNCIL COORDINATION
CASES PROCEEDING NO. 5035
13
ORDER RE: MOTION FOR FINAL
14 APPROVAL OF CLASS ACTION
SETTLEMENT; JUDGMENT
15
16 The above-entitled matter came on for hearing on Friday, June 26, 2020, at 9:00 a.m. in
17 Department 3, the Honorable Patricia M. Lucas presiding. Department 3 was open at the time of|
18 the hearing so that class members could appear and object to the settlement, but no one appeared.
19 Plaintiffs’ counsel appeared by telephone and confirmed that, to counsel’s knowledge, no class
20 members had objected. Having reviewed and considered the written submissions filed by the
21 parties, and having listened carefully to arguments of counsel, the Court hereby orders, judges,
22 and decrees, as follows:
25 I INTRODUCTION
24 These are two coordinated putative class actions arising out of various alleged wage and
25 hour violations. The parties have reached a settlement. On February 14, 2020, the court granted
26 preliminary approval of the settlement. Plaintiffs Enrique Torres, Ruben S. Hermosillo, and
27 Rosario De La Trinidad (collectively, “Plaintiffs”) now move for final approval of the
28 settlement.
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
Il. LEGAL STANDARD
Generally, “questions whether a settlement was fair and reasonable, whether notice to the
class was adequate, whether certification of the class was proper, and whether the attorney fee
award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple
Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48
Cal.App.4th 1794.)
In determining whether a class settlement is fair, adequate and reasonable, the
h
trial court should consider relevant factors, such as “the stren th of plaintiffs’
case, the risk, expense, complexity and likely duration of furtl er litigation, the
tisk 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
10 the reaction of the class members to the proposed settlement.”
11 (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48
12 Cal.App.4th at p. 1801 and Officers
for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688
13 F.2d 615, 624.)
14 “The list of factors is not exclusive and the court is free to engage in a balancing and
15 weighing of factors depending on the circumstances of each case.” (Wershba v. Apple
16 Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed
17 settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is
18 not the product of fraud or overreaching by, or collusion between, the negotiating parties, and
19 that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Jbid.,
20 quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n,
21 etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)
22 The burden is on the proponent of the settlement to show that it is fair and
reasonable. However “a presumption of fairness exists where: (1) the settlement
25 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
24 experienced in similar litigation; and (4) the percentage of objectors is small.”
25 (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48
26 Cal.App.4th at p. 1802.)
27 i
28 i
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
il. DISCUSSION
The case has been settled on behalf of the following class: “The approximate [sic] 2,700
current or former hourly non-exempt employees employed by Defendant in California.”
(Declaration of Jordan D. Bello in Support of Plaintiff's Motion for Final Approval of Class
Action Settlement (“Bello Decl.”), Ex. 1 (“Settlement Agreement”), p. 4:13-16.)
As discussed in connection with preliminary approval, Defendant will pay a non-
reversionary total of $6,100,000. This amount includes attorneys’ fees of $2,033,333, costs of
$20,197.14, settlement administration costs of $20,100, service awards of $23,700 ($7,900 for
each class representative), and a PAGA award of $50,000 ($37,500 of which will be paid to the
10 LWDA). Checks not cashed for 180 days from the date of issuance will become void and the
11 unclaimed funds will be transmitted to Legal Aid at Work.
12 On March 17, 2020, the settlement administrator mailed class notices to all 2,675 class
13 members. (Bello Decl., Ex. 2 (Declaration of Jarrod Salinas Regarding Notice and Settlement
14 Administration), § 9.) Ultimately, 32 notice packets remain undeliverable. (/bid.) As of May
15 26, 2020, there have been no requests for exclusion and no objections to the settlement. (/d. at
16 §¥ 10-11.) The average settlement payment is estimated to be $1,425.14 and the highest
17 payment will be approximately $4,549.31. (/d. at § 12.) The Court previously found the
18 proposed settlement is fair, and continues to make that finding for purposes of final approval.
19 Plaintiffs request class representative incentive awards of $7,900 for each of the three
20 class representatives — Enrique Torres, Ruben S. Hermosillo, and Rosario De La Trinidad.
21 The rationale for making enhancement or incentive awards to named plaintiffs is
that they should be compensated for the expense or risk they have incurred in
22 conferring a benefit on other members of the class. An incentive award is
appropriate if it is necessary to induce an individual to participate in the suit.
25 Criteria courts may consider in determining whether to make an incentive award
include: 1) the risk to the class representative in commencing suit, both financial
24 and otherwise; 2) the notoriety and personal difficulties encountered by the class
representative; 3) the amount of time and effort spent by the class representative;
25 4) the duration of the litigation and; 5) the personal benefit (or lack thereof)
enjoyed by the class representative as a result of the litigation. These “incentive
26 awards” to class representatives must not be disproportionate to the amount of
time and energy expended in pursuit of the lawsuit.
27
28 i
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks,
brackets, ellipses, and citations omitted.)
The class representatives have submitted declarations detailing their participation in the
lawsuit. They state that Torres spent about 75 hours, Hermosillo spent about 50 hours, and De
La Trinidad spent approximately 20-25 hours on the case. (Bello Decl., Ex. 12, § 4; Bello Decl.,
Ex. 13, § 4; Bello Decl., Ex. 14, 4.4.) The Court finds the incentive awards are warranted and
they are approved.
The Court also has an independent right and responsibility to review the requested
attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los
10 Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel
11 requests attorneys’ fees in the amount of $2,033,333 (one-third of the total settlement fund).
12 Plaintiffs’ counsel provides evidence demonstrating a combined lodestar (assuming top billing
13 rates) of $519,003.50, which results in a multiplier of approximately 3.92. (Declaration of
14 Jordan D. Bello in Support of Plaintiff's Motion for Final Approval of Class Action Settlement
15 (“Bello Decl.”), §9 43 and 45; Declaration of Sahag Majarian IT in Support of Plaintiff's Motion
16 for Final Approval of Class Action Settlement (“Majarian Decl.”), § 9; Declaration of Yoonis
17 Han in Support of Plaintiff's Motion for Final Approval of Class Action Settlement (“Han
18 Decl.”), fff 17-18.)!
19 The Court finds that Plaintiffs’ counsel prosecuted this case diligently and achieved a
20 good result, and a multiplier for the attorneys’ fees is warranted given the quality of the
21 representation, the novelty and complexity of the issues, the results obtained, and the risks
22 attendant to the litigation. A multiplier of 3.92, however, is on too high, and the requested fee
25 amount does not reflect the reasonable value of services provided by counsel. After carefully
24 reviewing counsel’s declarations and relevant case authorities and the arguments presented at the
25 hearing, the Court exercises its discretion to authorize a multiplier of 3.25 to the lodestar.
26
27
28 ! The Majarian Declaration states the lodestar is based on 158.2 hours of work, but when the different categories of
work are added together, they total 158.3 hours of work. The court used the 158.3 number in calculating the
lodestar.
ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
Therefore, Plaintiffs’ counsel will receive attorneys’ fees of $1,686,761.38. The remaining funds|
shall be distributed to the class.
Plaintiffs request $20,197.14 for costs. This amount reflects the actual incurred
combined costs of class counsel, with the exception of two line items in the Han Declaration for
not-yet-incurred CourtCall fees of $94 each. (Bello Decl., § 46 and Ex. 3; Majarian Decl., § 9
and Ex. A; Han Decl., ] 20 and Ex. C.) No supplemental proof was provided that these costs
were in fact incurred. Therefore, the requested costs are approved in the amount of $20,009.14.
The Court approves the $20,100 requested for settlement administration costs. (See Bell
Decl., Ex. 2 (Declaration of Jarrod Salinas Regarding Notice and Settlement Administration),
10 113.)
11 The motion for final approval of class action settlement is GRANTED, subject to the
12 reduction in the attorneys’ fees and costs.
13 Pursuant to Rule 3.769, subdivision (h), of the California Rules of Court, this Court
14 retains jurisdiction over the parties to enforce the terms of the Settlement Agreement, and the
15 final Order and Judgment.
16 The court sets a compliance hearing for December 18, 2020 at 10:00 A.M. in Department
17 3. At least ten court days before the hearing, class counsel and the settlement administrator shall
18 submit a summary accounting of the net settlement fund identifying distributions made as
19 ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant,
20 the status of any unresolved issues, and any other matters appropriate to bring to the court’s
21 attention. Counsel may appear at the compliance hearing telephonically.
22
25
IF
Dated: July 1, 2020 UCe
Patricia M. Lucas
24
Judge of the Superior Court
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ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT
Preview
SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 10 11 12 UTILITY TREE SERVICE WAGE AND HOUR JUDICIAL COUNCIL COORDINATION CASES PROCEEDING NO. 5035 13 ORDER RE: MOTION FOR FINAL 14 APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT 15 16 The above-entitled matter came on for hearing on Friday, June 26, 2020, at 9:00 a.m. in 17 Department 3, the Honorable Patricia M. Lucas presiding. Department 3 was open at the time of| 18 the hearing so that class members could appear and object to the settlement, but no one appeared. 19 Plaintiffs’ counsel appeared by telephone and confirmed that, to counsel’s knowledge, no class 20 members had objected. Having reviewed and considered the written submissions filed by the 21 parties, and having listened carefully to arguments of counsel, the Court hereby orders, judges, 22 and decrees, as follows: 25 I INTRODUCTION 24 These are two coordinated putative class actions arising out of various alleged wage and 25 hour violations. The parties have reached a settlement. On February 14, 2020, the court granted 26 preliminary approval of the settlement. Plaintiffs Enrique Torres, Ruben S. Hermosillo, and 27 Rosario De La Trinidad (collectively, “Plaintiffs”) now move for final approval of the 28 settlement. ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT Il. LEGAL STANDARD Generally, “questions whether a settlement was fair and reasonable, whether notice to the class was adequate, whether certification of the class was proper, and whether the attorney fee award was proper are matters addressed to the trial court’s broad discretion.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234-235, citing Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794.) In determining whether a class settlement is fair, adequate and reasonable, the h trial court should consider relevant factors, such as “the stren th of plaintiffs’ case, the risk, expense, complexity and likely duration of furtl er litigation, the tisk 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 10 the reaction of the class members to the proposed settlement.” 11 (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 12 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 13 F.2d 615, 624.) 14 “The list of factors is not exclusive and the court is free to engage in a balancing and 15 weighing of factors depending on the circumstances of each case.” (Wershba v. Apple 16 Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed 17 settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is 18 not the product of fraud or overreaching by, or collusion between, the negotiating parties, and 19 that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Jbid., 20 quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, 21 etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.) 22 The burden is on the proponent of the settlement to show that it is fair and reasonable. However “a presumption of fairness exists where: (1) the settlement 25 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 24 experienced in similar litigation; and (4) the percentage of objectors is small.” 25 (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 26 Cal.App.4th at p. 1802.) 27 i 28 i ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT il. DISCUSSION The case has been settled on behalf of the following class: “The approximate [sic] 2,700 current or former hourly non-exempt employees employed by Defendant in California.” (Declaration of Jordan D. Bello in Support of Plaintiff's Motion for Final Approval of Class Action Settlement (“Bello Decl.”), Ex. 1 (“Settlement Agreement”), p. 4:13-16.) As discussed in connection with preliminary approval, Defendant will pay a non- reversionary total of $6,100,000. This amount includes attorneys’ fees of $2,033,333, costs of $20,197.14, settlement administration costs of $20,100, service awards of $23,700 ($7,900 for each class representative), and a PAGA award of $50,000 ($37,500 of which will be paid to the 10 LWDA). Checks not cashed for 180 days from the date of issuance will become void and the 11 unclaimed funds will be transmitted to Legal Aid at Work. 12 On March 17, 2020, the settlement administrator mailed class notices to all 2,675 class 13 members. (Bello Decl., Ex. 2 (Declaration of Jarrod Salinas Regarding Notice and Settlement 14 Administration), § 9.) Ultimately, 32 notice packets remain undeliverable. (/bid.) As of May 15 26, 2020, there have been no requests for exclusion and no objections to the settlement. (/d. at 16 §¥ 10-11.) The average settlement payment is estimated to be $1,425.14 and the highest 17 payment will be approximately $4,549.31. (/d. at § 12.) The Court previously found the 18 proposed settlement is fair, and continues to make that finding for purposes of final approval. 19 Plaintiffs request class representative incentive awards of $7,900 for each of the three 20 class representatives — Enrique Torres, Ruben S. Hermosillo, and Rosario De La Trinidad. 21 The rationale for making enhancement or incentive awards to named plaintiffs is that they should be compensated for the expense or risk they have incurred in 22 conferring a benefit on other members of the class. An incentive award is appropriate if it is necessary to induce an individual to participate in the suit. 25 Criteria courts may consider in determining whether to make an incentive award include: 1) the risk to the class representative in commencing suit, both financial 24 and otherwise; 2) the notoriety and personal difficulties encountered by the class representative; 3) the amount of time and effort spent by the class representative; 25 4) the duration of the litigation and; 5) the personal benefit (or lack thereof) enjoyed by the class representative as a result of the litigation. These “incentive 26 awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit. 27 28 i ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT (Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.) The class representatives have submitted declarations detailing their participation in the lawsuit. They state that Torres spent about 75 hours, Hermosillo spent about 50 hours, and De La Trinidad spent approximately 20-25 hours on the case. (Bello Decl., Ex. 12, § 4; Bello Decl., Ex. 13, § 4; Bello Decl., Ex. 14, 4.4.) The Court finds the incentive awards are warranted and they are approved. The Court also has an independent right and responsibility to review the requested attorneys’ fees and only award so much as it determines reasonable. (See Garabedian v. Los 10 Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiffs’ counsel 11 requests attorneys’ fees in the amount of $2,033,333 (one-third of the total settlement fund). 12 Plaintiffs’ counsel provides evidence demonstrating a combined lodestar (assuming top billing 13 rates) of $519,003.50, which results in a multiplier of approximately 3.92. (Declaration of 14 Jordan D. Bello in Support of Plaintiff's Motion for Final Approval of Class Action Settlement 15 (“Bello Decl.”), §9 43 and 45; Declaration of Sahag Majarian IT in Support of Plaintiff's Motion 16 for Final Approval of Class Action Settlement (“Majarian Decl.”), § 9; Declaration of Yoonis 17 Han in Support of Plaintiff's Motion for Final Approval of Class Action Settlement (“Han 18 Decl.”), fff 17-18.)! 19 The Court finds that Plaintiffs’ counsel prosecuted this case diligently and achieved a 20 good result, and a multiplier for the attorneys’ fees is warranted given the quality of the 21 representation, the novelty and complexity of the issues, the results obtained, and the risks 22 attendant to the litigation. A multiplier of 3.92, however, is on too high, and the requested fee 25 amount does not reflect the reasonable value of services provided by counsel. After carefully 24 reviewing counsel’s declarations and relevant case authorities and the arguments presented at the 25 hearing, the Court exercises its discretion to authorize a multiplier of 3.25 to the lodestar. 26 27 28 ! The Majarian Declaration states the lodestar is based on 158.2 hours of work, but when the different categories of work are added together, they total 158.3 hours of work. The court used the 158.3 number in calculating the lodestar. ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT Therefore, Plaintiffs’ counsel will receive attorneys’ fees of $1,686,761.38. The remaining funds| shall be distributed to the class. Plaintiffs request $20,197.14 for costs. This amount reflects the actual incurred combined costs of class counsel, with the exception of two line items in the Han Declaration for not-yet-incurred CourtCall fees of $94 each. (Bello Decl., § 46 and Ex. 3; Majarian Decl., § 9 and Ex. A; Han Decl., ] 20 and Ex. C.) No supplemental proof was provided that these costs were in fact incurred. Therefore, the requested costs are approved in the amount of $20,009.14. The Court approves the $20,100 requested for settlement administration costs. (See Bell Decl., Ex. 2 (Declaration of Jarrod Salinas Regarding Notice and Settlement Administration), 10 113.) 11 The motion for final approval of class action settlement is GRANTED, subject to the 12 reduction in the attorneys’ fees and costs. 13 Pursuant to Rule 3.769, subdivision (h), of the California Rules of Court, this Court 14 retains jurisdiction over the parties to enforce the terms of the Settlement Agreement, and the 15 final Order and Judgment. 16 The court sets a compliance hearing for December 18, 2020 at 10:00 A.M. in Department 17 3. At least ten court days before the hearing, class counsel and the settlement administrator shall 18 submit a summary accounting of the net settlement fund identifying distributions made as 19 ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, 20 the status of any unresolved issues, and any other matters appropriate to bring to the court’s 21 attention. Counsel may appear at the compliance hearing telephonically. 22 25 IF Dated: July 1, 2020 UCe Patricia M. Lucas 24 Judge of the Superior Court 25 26 27 28 ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; JUDGMENT