SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

NATASHA KUMAR, an individual,

Plaintiff,

vs.

FORTY NINERS STADIUM MANAGEMENT COMPANY LLC; and DOES 1-100, inclusive,

Defendants.
Case No. 2017-1-CV-312427

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR FEES AND COSTS OF CLASS COUNSEL, SERVICE PAYMENT TO CLASS REPRESENTATIVE, AND COSTS OF CLAIMS ADMINISTRATION

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on March 29, 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 wage and hour violations. The Third Amended Class Action Complaint, filed on February 1, 2018, sets forth the following causes of action: (1) Failure to Furnish Proper and Complete Itemized Wage Statements; (2) Violation of Labor Code Sections 226.7 and 512; (3) Violation of Labor Code Sections 201 and 202; (4) Violation of Business and Professions Code Section 17200, et seq.; and (5) Private Attorneys General Act.

The parties have reached a settlement. On November 30, 2018, the Court granted preliminary approval of the settlement. Plaintiff now moves for final approval of the settlement.

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:

Any current or former California employee of Forty Niners Stadium Management Company, LLC who was issued one or more live wage statements from June 29, 2016, through November 24, 2017.

As stated in connection with the motion for preliminary approval, Defendant will pay a total of $300,000 and will revise the format of its wage statements. The settlement payment includes $100,000 for attorneys’ fees, up to $10,000 for costs, $5,000 as a class representative incentive award, and up to $10,500 for settlement administrator fees and costs. An amount of $15,000 out of the settlement is allocated to PAGA, with $11,250 of that amount to be paid to the LWDA. Funds from checks remaining uncashed after 180 days will be distributed as follows: 50% to CityTeam San Jose and 50% to Court Appointed Special Advocates for Children of Silicon Valley.

The settlement is based only on Plaintiff’s wage statement claim. Plaintiff’s claims based on alleged missed meal breaks will be dismissed without prejudice, except to the extent Plaintiff asserts them on an individual basis, in which case they will be dismissed with prejudice

The average estimated settlement payment is $238.67, and the highest estimated payment is $1,056.81. (Declaration of Lindsay Kline Regarding Notice and Settlement Administration (“Kline Decl.”), ¶ 12.)

On January 8, 2019, notice packets were mailed to 685 class members by first class mail. (Kline Decl., ¶ 8.) Ultimately, one notice packet remains undeliverable. (Id. at ¶ 9.) There has been one request for exclusion. (Id. at ¶ 13.) There have been no objections. (Id. at ¶ 14.)

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 a class representative incentive award of $5,000 for class representative Natasha Kumar.

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. She states she has engaged in numerous discussions with class counsel and provided documentary evidence regarding her employment with Defendant. (Declaration of Natasha Kumar in Support of Motion for Fees and Costs of Class Counsel, Service Payment to Class Representative, and Settlement Administration Costs, ¶ 6.) She also participated in a full-day mediation on June 20, 2018. (Id. at ¶ 20.) The Court finds the requested 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 $100,000. Plaintiff’s counsel has a lodestar of $95,036.95. (Declaration of John P. Briscoe in Support of (1) Motion for Final Approval of Class Action Settlement and (2) Motion for Fees and Costs of Class Counsel, Service Payment to Class Representative, and Costs of Claims Administration (“Briscoe Decl.”), ¶ 23.) This results in a multiplier of 1.05. This is within the range of reasonable multipliers.

Plaintiff’s counsel requests costs in the amount of $10,000. Plaintiff’s counsel’s actual incurred costs total $9,993.49. (Briscoe Decl., ¶ 26.) Plaintiff’s counsel expects to incur additional costs that will increase the costs to more than $10,000. (Ibid.) The Court finds the attorneys’ 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.

The Court will sign the proposed order and final judgment submitted by Plaintiff.

The Court will set a compliance hearing for October 18, 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.