SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

THOMAS VILLAREAL, on behalf of himself and all others similarly situated,

Plaintiff,

vs.

MISSION TRAIL WASTE SYSTEMS, INC., and DOES 1 through 50, inclusive,

Defendants.

Case No. 2018-1-CV-338479

TENTATIVE RULING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT, AND REQUEST TO FILE FIRST AMENDED COMPLAINT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on November 22, 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 Labor Code violations. The Complaint, filed on November 19, 2018, sets forth causes of action titled: (1) Meal Break Violations; (2) Rest Break Violations; (3) Inaccurate Wage Statements; (4) Failure to Permit Employee Inspection of Payroll Records; (5) Failure to Permit Employee Inspection of Personnel Records; (6) Improper Acquisition and Use of Employees’ Fingerprints; (7) Unlawful, Unfair, and Fraudulent Business Practices; and (8) Labor Code Private Attorneys General Act of 2004.

The parties have reached a settlement. Plaintiff now moves for preliminary 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.
A. Provisions of the Settlement
B.
The case has been settled on behalf of the following class:

[A]ll current and former non-exempt sanitation truck drivers employed by Defendant at any time during the Class Period, which Defendant represents to be 63 individuals as of October 2019.

(Declaration of Robin G. Workman in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement, and Request to File First Amended Complaint (“Workman Decl.”), Ex. C (“Settlement Agreement”), ¶ 4.)

The “Class Period” is November 19, 2014, through the date of preliminary approval. (Settlement Agreement, ¶ 5.)

Pursuant to the settlement, defendant Mission Trail Waste Systems, Inc. (“Defendant”) will pay a total non-reversionary amount of $750,000. (Settlement Agreement, ¶ 32.) This includes allocations of $250,000 for attorneys’ fees, up to $20,000 in costs, $5,000 for an incentive award, $15,000 for PAGA ($11,250 of which will be paid to the California Labor and Workforce Development Agency), and settlement administration costs of $15,000. (Id. at ¶¶ 33, 35-37.)

The Settlement Agreement provides that checks not cashed within 90 days shall be void. (Settlement Agreement, ¶ 56.) Funds from those checks will be distributed pro rata to class members who cashed the initial checks. (Ibid.) Funds from uncashed checks after the second distribution, or if the funds remaining from the initial distribution are less than $4,500, will be paid on a cy pres basis to Legal Aid at Work. (Ibid.)

C. Fairness of the Settlement
D.
Plaintiff states the settlement resulted from arm’s-length negotiations facilitated through a day-long mediation. Plaintiff asserts the gross settlement payment of $750,000 represents 42% of the total maximum recovery as calculated by Plaintiff’s expert and the settlement will result in an average payout of approximately $7,000 for each class member.

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.

E. Incentive Award, Fees, and Costs
F.
Plaintiff requests a class representative incentive award of $5,000.

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.)

Plaintiff submits a declaration stating he worked closely with class counsel, searching for documents and discussing information provided to class counsel. (Declaration of Thomas Villareal in Support of Plaintiff’s Motion for Preliminary Approval of Class Action Settlement, and Request to File First Amended Complaint, ¶ 12.) Plaintiff estimates he spent 50-70 hours on the case. (Ibid.) The Court finds the incentive payment is warranted. The incentive award of $5,000 is approved.

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 $250,000 (1/3 of the total settlement) and costs up to $20,000. Plaintiff’s counsel shall 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 shall also submit information regarding actual costs incurred.

G. Conditional Certification of Class
H.
Plaintiff has not requested conditional certification of the putative class. Plaintiff must provide a basis for conditionally certifying the class for purposes of the settlement. Accordingly, Plaintiff shall file supplemental papers to this effect. The papers shall be filed no later than 4:00 p.m. on December 11, 2019, and the hearing on this motion will be CONTINUED to December 20, 2019 at 9:00 a.m. in Department 5.

I. Class Notice
J.
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 Workman Decl., Ex. D.) 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 must state whether a class member intends to appear at the final approval hearing. 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 for approval prior to mailing.

K. Filing of First Amended Complaint
L.
As part of the settlement, the parties have stipulated to the filing of a First Amended Complaint, which adds a time rounding claim, and Plaintiff requests permission to file it. The request is GRANTED and the First Amended Complaint is DEEMED FILED.

M. Conclusion
N.
As stated above, Plaintiff shall file supplemental papers regarding conditional certification of the class. The papers shall be filed no later than 4:00 p.m. on December 11, 2019, and the hearing on this motion is CONTINUED to December 20, 2019 at 9:00 a.m. in Department 5.

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