SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

ROSE PROVENCIO, on behalf of herself and all others similarly situated,

Plaintiff,

vs.

TOO FACED COSMETICS, LLC, a Delaware Limited Liability Company, and DOES 1 through 50, inclusive,

Defendants.
Case No. 2018-1-CV-336593

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

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on November 1, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

V. INTRODUCTION

This is a putative class action arising out of various alleged Labor Code violations. The Complaint, filed on October 23, 2018, sets forth the following causes of action: (1) Failure to Pay Wages Owed Including Overtime Pay; (2) Failure to Pay Wages for Missed Meal Periods; (3) Failure to Pay Wages for Missed Rest Periods; (4) Failure to Reimburse Business Expenses; (5) Failure to Provide Accurate Itemized Wage Statements; (6) Waiting Time Penalties; (7) Unfair Competition; and (8) Civil Penalties Under Private Attorney General Act.

The parties have reached a settlement. Plaintiff Rose Provencio (“Plaintiff”) now moves for preliminary approval of the settlement.

VI. 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.)

VII. DISCUSSION

A. Provisions of the Settlement

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

All current and former Freelance Make-Up Artists engaged by Defendant in California as independent contractors during the respective Class Period.

(Declaration of Kevin R. Allen in Support of Plaintiff’s Motion for an Order: (1) Granting Preliminary Approval to Class Action Settlement; (2) Granting Conditional Certification of the Settlement Class; (3) Appointing Class Counsel, Class Representatives and Settlement Administrator; and, (4) Approving the Notice of Proposed Class Action Settlement and Final Approval Hearing Date (“Allen Decl.”), Ex. 1 (“Settlement Agreement”), ¶ I(D).)

The “Class Period” is October 23, 2014, to November 1, 2019, inclusive. (Settlement Agreement, ¶ I(H).)

Pursuant to the settlement, defendant Too Faced Cosmetics, LLC (“Defendant”) will pay a total non-reversionary amount of $500,000. (Settlement Agreement, ¶ III(A).) This includes allocations of $7,500 for a class representative incentive award, $165,000 for attorneys’ fees, up to $12,000 in actual litigation costs, $20,000 for the PAGA claims ($15,000 of which will be paid to the California Labor and Workforce Development Agency), and up to $10,000 for settlement administration costs (estimated at $5,999). (Id. at ¶¶ I(A), (C), (J), (K), and (U) and H.) Checks not cashed within 180 days will be paid to a cy pres recipient (id. at III(K)(10)), which the parties identify as the Katharine & George Alexander Community Law Center, which Plaintiff’s counsel contends meets the requirements of Code of Civil Procedure section 384. (Allen Decl., ¶ 14.)

There are two discrepancies between the amounts set forth in the Settlement Agreement and the amounts that Plaintiff is seeking approval for in her moving papers: (1) the Settlement Agreement states $7,500 is allocated for an incentive award, but the moving papers request $10,000; and (2) the Settlement Agreement provides for actual litigation costs up to $12,000, but the moving papers request up to $10,000. The Court assumes Plaintiff is seeking approval of the dollar amounts in the Settlement Agreement and not the different dollar amounts set forth in the moving papers. If this is incorrect, Plaintiff’s counsel should appear at the hearing and explain why the incentive award and/or the actual litigation costs for which the moving papers seek approval are different from those in the Settlement Agreement.

B. Fairness of the Settlement

Plaintiff asserts the settlement is the product of arm’s-length negotiations and months of preparation for mediation followed by a full day of mediation. Plaintiff states the parties spent over a month negotiating the terms of the proposed settlement after accepting a mediator’s proposal. Plaintiff estimates the reasonable recovery in this case ranges from approximately $1 million to $2.7 million. (Allen Decl., ¶ 23.)

Overall, the Court finds the settlement is fair. It provides for some recovery for each class member and eliminates the risk and expense of further litigation.

C. Incentive Award, Fees, and Costs

Plaintiff requests a class representative incentive award of $10,000, though as noted earlier, the incentive award set forth in the Settlement Agreement is $7,500.

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.)

Prior to final approval of the settlement, Plaintiff must submit a declaration specifically detailing her participation in this action. The Court will make a determination regarding the incentive award at that time.

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 $165,000 (33% of the total settlement) and costs of $10,000 (though as noted earlier, the Settlement Agreement provides for up to $12,000 in costs). Plaintiff’s counsel should submit lodestar information (including hourly rates and hours worked) prior to the final approval hearing so the Court can compare the lodestar information with the requested fees. Plaintiff’s counsel should also submit information regarding actual costs incurred.

D. Conditional Certification of Class

Plaintiff requests the putative class be conditionally certified for purposes of the settlement. Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .”

As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. (Id. at p. 326.)

“Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)
As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, internal quotation marks, ellipses, and citations omitted.)

There are approximately 203 class members. Class members can be ascertained from Defendant’s records. There are common issues in this case regarding whether Make-Up Artists were misclassified as independent contractors, and whether Defendant’s uniform policies pertaining to the payment of wages, scheduling, expense reimbursements, meal periods and rest breaks, and the issuance of wage statements and final pay at termination violated the law. No issue has been raised regarding the typicality or adequacy of Plaintiff as class representative. In sum, the Court finds that the proposed class should be conditionally certified.

E. Class Notice

The content of a class notice is subject to court approval. “If the court has certified the action as a class action, notice of the final approval hearing must be given to the class members in the manner specified by the court.” (Cal. Rules of Court, rule 3.769(f).)

The proposed notice generally complies with the requirements for class notice. (See Settlement Agreement, Ex. A.) It provides basic information about the settlement, including the settlement terms, and procedures to object or request exclusion. However, the notice states objections must be in writing and mailed to the settlement administrator by a certain deadline. The notice must be changed to state that class members may appear at the final approval hearing to object without mailing any written objection and without providing any advance notice. The amended notice shall be provided to the Court (via the Complex Coordinator) for approval prior to mailing.

F. Conclusion

The motion for preliminary approval of class settlement is GRANTED, subject to the modification to the notice. The final approval hearing is set for April 3, 2020, at 9:00 a.m. in Department 5.

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

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.