SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

DARYL JIMENEZ, JEREMY JIMENEZ, and ABEL ARRIOLA, as individuals, on behalf of themselves, and all persons similarly situated,

Plaintiffs,

vs.

CALIFORNIA WIRELESS SOLUTIONS, INC., d.b.a. SPRINT, a California corporation authorized to do business in the state of California; ZAID HAMED, an individual; ALEA FERGUSON, an individual; SPRINT SOLUTIONS, INC., a Virginia corporation authorized to do business in the state of California; SPRINT COMMUNICATIONS COMPANY L.P. a Virginia limited partnership; and DOES 1 to 10 inclusive,

Defendants.

Case No. 2018-1-CV-323955

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on June 14, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION
II.
This is a putative class action arising out of various alleged wage and hour violations. The Complaint, filed on February 27, 2018, sets forth the following causes of action: (1) Failure to Pay Minimum Wages and Overtime Compensation; (2) Failure to Provide Written Commission Agreements; (3) Unlawful Deduction of Wages; (4) Secretly Underpaid Wages; (5) Failure to Provide Legally Compliant Meal Periods or Compensation in Lieu Thereof; (6) Failure to Provide Legally Compliant Rest Periods or Compensation in Lieu Thereof; (7) Failure to Reimburse for Necessary Work Expenses; (8) Failure to Pay Wages Owed; (9) Failure to Furnish Accurate Wage Statements; (10) Failure to Maintain Accurate Records; (11) Unfair Business Practices; and (12) Private Attorneys General Act of 2004.

The parties have reached a settlement. On February 8, 2019, the Court granted preliminary approval of the settlement. Plaintiffs Daryl Jimenez, Jeremy Jimenez, and Abel Arriola (collectively, “Plaintiffs”) now move for final approval of the settlement.

III. LEGAL STANDARD
IV.
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.)

V. DISCUSSION
VI.
The case has been settled on behalf of the following class:

[A]ll current or former non-exempt retail employees employed by Defendant California Wireless Solutions, Inc., who held titles including but not limited to sales representative, sales lead, and store manager in the state of California at any time during the period of February 27, 2014 through February 8, 2019.

As discussed in connection with the motion for preliminary approval, defendants California Wireless Solutions, Inc., Zaid Hamed, and Alea Ferguson (collectively, “Defendants”) will pay a non-reversionary total of $900,000. The settlement payment includes up to $300,000 in attorneys’ fees, up to $11,000 in costs , $7,500 as an incentive award for each of the named class representatives, and $17,275 for settlement administrator costs. The parties have agreed to allocate $25,000 to PAGA, with $18,750 of that amount to be paid to the California Labor and Workforce Development Agency. The class settlement will be funded on three dates – an initial payment of $250,000, a payment of $325,000 approximately one year later, and a payment of $325,000 approximately one year after that.

On March 11, 2019, the settlement administrator mailed class notices to the 1,077 class members on the class list. (Declaration of Elizabeth Kruckenberg on Behalf of Settlement Administrator with Respect to Opt Outs, and Objections Received, ¶ 5.) Ultimately, 20 notice packets have remained undeliverable. (Id. at ¶ 7.) There have been no objections and no requests for exclusion. (Id. at ¶¶ 8-9.)

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

Plaintiffs request service awards of $7,500 for each class representative – Daryl Jimenez, Jeremy Jimenez, and Abel Arriola.

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 representatives have submitted declarations in which they state they expended a lot of time communicating with Plaintiffs’ counsel, searching for and providing documents to counsel, and answering counsel’s questions and providing factual information. (Declaration of Daryl Jimenez in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and Application for Attorneys’ Fees, Costs and Class Representative Enhancement Payments (“Daryl Jimenez Decl.”), ¶ 12; Declaration of Jeremy Jimenez in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and Application for Attorneys’ Fees, Costs and Class Representative Enhancement Payments (“Jeremy Jimenez Decl.”), ¶ 10; Declaration of Abel Arriola in Support of Plaintiffs’ Motion for Final Approval of Class Action Settlement and Application for Attorneys’ Fees, Costs and Class Representative Enhancement Payments(“Arriola Decl.”), ¶ 10.) The class representatives have spent in the range of 35 to 44 hours on the case. (Daryl Jimenez Decl., ¶ 12; Jeremy Jimenez Decl., ¶ 17; Arriola Decl., ¶ 17.) The Court finds the incentive awards are 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.) Plaintiffs’ counsel requests attorneys’ fees in the amount of $300,000 (one-third of the total settlement amount). Plaintiffs’ counsel provides evidence demonstrating a lodestar of $367,206.40, which results in a negative multiplier. The Court will approve the fees.

Plaintiffs request $9,355.18 for actual incurred costs. The Court will approve the requested cost amount.

The motion for final approval of class action settlement is GRANTED.

The Court will prepare the final order and judgment if this tentative ruling is not contested.

The Court will set an interim compliance hearing for December 20, 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 may appear at the compliance hearing telephonically. The Court will set additional compliance hearings at a later date in connection with the second and third settlement distributions.