SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

JUDIS CORSO, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

M.L. ZAGER, P.C., a New York professional corporation; JOSEPH P. LOUGHLIN, individually and in his official capacity; ROBERT BRUCE HUNTER, individually and in his official capacity; and DOES 1 through 10, inclusive,

Defendants.
Case No. 2016-1-CV-298607

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEY FEES AND COSTS AND APPROVAL OF SERVICE AWARD

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on January 25, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a putative consumer class action brought pursuant to the California Rosenthal Fair Debt Collection Practices Act. (Complaint, ¶ 1.) Plaintiff Judis Corso (“Plaintiff”) alleges defendants have a practice of sending initial written communications that fail to provide the “Consumer Collection Notice” required by California Civil Code section 1812.700, subdivision (a), in violation of California Civil Code section 1812.700, subdivision (b). (Complaint, ¶ 3.)

The Complaint, filed on August 16, 2016, sets forth a single cause of action for “California Consumer Collection Notice.”

The parties have reached a settlement. On June 26, 2018, the Court granted preliminary approval of the settlement. The parties now move for final approval of the settlement. Plaintiff also moves for recovery of attorneys’ fees, costs, and a class representative incentive award.

II. 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 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.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at pp. 244-245, citing Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc. (9th Cir. 1982) 688 F.2d 615, 624.)

“The list of factors is not exclusive and the court is free to engage in a balancing and weighing of factors depending on the circumstances of each case.” (Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245.) The court must examine the “proposed settlement agreement to the extent necessary to reach a reasoned judgment that the agreement is not the product of fraud or overreaching by, or collusion between, the negotiating parties, and that the settlement, taken as a whole, is fair, reasonable and adequate to all concerned.” (Ibid., quoting Dunk, supra, 48 Cal.App.4th at p. 1801 and Officers for Justice v. Civil Service Com’n, etc., supra, 688 F.2d at p. 625, internal quotation marks omitted.)

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 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.”

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk, supra, 48 Cal.App.4th at p. 1802.)

III. DISCUSSION

The case has been settled on behalf of the following class:

(i) all persons with addresses in California (ii) to whom Defendants sent, or caused to be sent, an initial written communication in the form of Exhibit “1” to the Complaint (iii) in an attempt to collect a defaulted consumer debt (iv) which were not returned as undeliverable by the U.S. Post Office (v) and the letter was sent between August 16, 2015, through the date of class certification. Excluded from the Class would be any officers, directors or legal representatives of Defendant, and any judge, justice, or judicial officer presiding over this matter and the members of their immediate families and judicial staff.

Defendants have agreed to pay $7,100 to the class ($100 to each of 71 class members). Uncashed settlement checks will be redistributed to cy pres recipient Alexander Community Law Center. Defendants will also pay $1,000 to Plaintiff individually and another $1,000 as an incentive award. Plaintiff’s counsel seeks an award of attorneys’ fees and costs in the amount of $50,000.
On October 12, 2018, class administrator First Class, Inc. mailed notices to 70 class members. (Declaration of Bailey Hughes in Support of Joint Motion for Final Approval of Class Action Settlement, ¶ 6.) As of December 27, 2018, 13 notices remained undeliverable. (Id. at ¶ 8.) There have been no objections and no requests for exclusion. (Id. at ¶¶ 10-11.)
The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval in light of the lack of objections.
Plaintiff requests an incentive award of $1,000 for the class representative.

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 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. 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 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; 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 awards” to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.

(Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1394-1395, quotation marks, brackets, ellipses, and citations omitted.)

The class representative has submitted a declaration to support the request. He states he communicated with class counsel on numerous occasions and reviewed and signed documents. (Declaration of Class representative Judis Corso in Support of Final Approval of Class Action Settlement and Service Award, ¶¶ 9-12.) The Court finds the class representative has justified the request for an incentive award.

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 Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) Plaintiff’s counsel requests attorneys’ fees and costs in the amount of $50,000. Plaintiffs’ counsel has a lodestar of $61,350. (Declaration of Fred W. Schwinn in Support of Motion for Attorney Fees and Costs and Approval of Service Award, Ex. A.) This results in a negative multiplier. Costs total $348.83. (Ibid.) The Court finds the fees and costs are justified and they are approved.

The motion for final approval of class action settlement, and motion for fees and costs, are GRANTED, subject to an explanation regarding why notice was sent to 70 individuals instead of 71. Counsel may appear at the hearing telephonically.

The Court will prepare the final order if this tentative ruling is not contested. Plaintiff is directed to submit a judgment for the Court’s signature.

The Court will set a compliance hearing for August 23, 2019 at 10:00 a.m. in Department 5. At least ten court days before the hearing, class counsel and the settlement administrator shall submit a summary accounting of the net settlement fund identifying distributions made as ordered herein, the number and value of any uncashed checks, amounts remitted to Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the court’s attention. Counsel shall also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b). Counsel may appear at the compliance hearing telephonically.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.