SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

SAMANTHA STOLLMAN, on behalf of herself and all others similarly situated,

Plaintiff,

vs.

OLD PRO, INC., LOCAL UNION 271, GBPA, INC. dba DAN GORDON’S, OLIVER GORDON, STEVE SINCHEK, and DOES 1-100, inclusive,

Defendants.
Case No. 2018-1-CV-321842

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS SETTLEMENT

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 class action arising out of various alleged Labor Code violations. The First Amended Class Action Complaint, filed on May 11, 2018, sets forth the following causes of action: (1) Failure to Pay Overtime Wages; (2) Failure to Pay Minimum Wage; (3) Failure to Provide Mandated Meal Periods; (4) Failure to Provide Mandated Rest Periods; (5) Failure to Provide Timely and Accurate Wage Statements; (6) Failure to Pay All Wages Due at Termination – Waiting Time Penalties; and (7) Unfair Practice Under the Unfair Competition Act. The parties have reached a settlement. On October 5, 2018, the Court granted preliminary approval of the settlement. Plaintiff now moves for final approval.

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:

All current and former California based non-exempt employees who worked for Defendants as waiters, waitress [sic], and bar tenders [sic] (“Servers”) (or similarly nomenclature [sic] positions performing substantially identical functions and/or duties) during the Class period (from January 16, 2014 through the date of the Court’s order granting preliminary approval of this Settlement).

Pursuant to the settlement, defendants Old Pro, Inc., Local Union 271, GBPA, Inc. dba Dan Gordon’s, Oliver Gordon, and Steve Sinchek (collectively, “Defendants”) will pay a total of $110,000. The settlement amount includes a service award of $5,000 for the class representative, attorneys’ fees of $36,666 (one-third of the total settlement fund), up to $15,000 for costs, up to $10,000 for settlement administration costs, and a PAGA payment of $1,000 ($750 of which will be paid to the LWDA).

On October 26, 2018, notice packets were mailed to all class members. (Declaration of Sofia Munoz on Behalf of CPT Group, Inc., with Respect to Notification and Administration (“Munoz Decl.”), ¶ 7.) Ultimately, seven notice packets remain undeliverable. (Id. at ¶ 9.) There have been two requests for exclusion. (Id. at ¶ 12.) The claims administrator states it has received ten “responses” from class members, four of which were an instance in which the Workweek Dispute Form was returned unnecessarily, as the forms did not have any notations or additional documentation to support the dispute. (Id. at ¶ 10.) The claims administrator does not state what the other six “responses” were, so it is not clear if they were workweek disputes or objections. Additional clarification regarding these responses must be provided to the Court.

The settlement calls for a payment of up to $10,000 for claims administration costs and the claims administrator now seeks payment in the amount of $9,500. This amount is approved.

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.

Plaintiff requests an incentive award of $5,000 for class representative Samantha Stollman.

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 in which she states she was in regular contract with class counsel. (Declaration of Class Representative Samantha Stollman in Support of Motion for Final Approval of Class Settlement, ¶ 8.) She asserts she spent dozens of hours of her time to help gather information and litigate the case, including attending mediation and participating in settlement negotiations. (Id. at ¶¶ 7-8.) The Court finds the incentive award is warranted.

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 in the amount of $36,666. Plaintiff’s counsel provides a lodestar figure for work on the case of $46,875. (Declaration of Matthew S. Da Vega in Support of Plaintiffs’ [sic] Unopposed Motion for Final Approval of Class Settlement and Attorney Fees and Costs (“Da Vega Decl.”), ¶ 19.) This results in a negative multiplier for the requested fees when compared to the lodestar. The Court finds the requested fees to be reasonable and they are approved.

Plaintiff’s counsel also seeks actual incurred costs of $14,405. (Da Vega Decl., ¶ 20.) This amount of costs is approved.

On January 22, 2019, counsel reported that new rules issued by the California Department of Industrial Relations prevent it from accepting unclaimed wages claims/funds from a third party administrator as proposed in the settlement here. Counsel have proposed distributions to the State Treasury and the Equal Access Fund as an alternative.

The Court requests that counsel appear at the final approval hearing in person or telephonically. The Court would like to confirm the unclaimed funds arrangement with counsel. The Court would also like to discuss responses sent to the claims administrator and any objections. In addition, Plaintiff’s counsel shall provide the names of the individuals who have opted-out of the settlement at the hearing on this motion so they can be listed in the final order.

If the motion is granted, 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.