SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

DERMAR MOSES and EDESSA YOUHANA, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.

ADECCO USA, INC., and DOES 1 through 50, inclusive,

Defendants.
Case No. 2017-1-CV-311980

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR APPROVAL OF ATTORNEYS’ FEES AND COSTS

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on December 14, 2018, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

VIII. INTRODUCTION

This is a putative class action arising out of various alleged Labor Code Violations. According to the allegations of the Second Amended Complaint (“SAC”), filed on November 13, 2017, plaintiffs Dermar Moses and Edessa Youhana (collectively, “Plaintiffs”) and the putative class members were employed by defendant Adecco USA, Inc. (“Defendant”) as recruiters, senior recruiters, staff recruiters, and other similar, non-management positions. (SAC, ¶ 1.) During the California class period, Defendant had a policy and/or practice of (1) requiring recruiters to work in excess of eight hours per day and/or in excess of forty hours per week without paying overtime compensation; (2) failing to provide meal periods; (3) failing to provide rest periods; (4) failing to pay compensation owed upon termination; and (5) failing to furnish timely, accurate wage statements. (SAC, ¶ 6.)

The SAC sets forth the following causes of action: (1) Failure to Pay Overtime; (2) Failure to Provide and/or Authorize Meal and Rest Periods; (3) Failure to Provide Accurate, Itemized Wage Statements; (4) Failure to Pay Earned Wages Upon Discharge and Waiting Time Penalties; (5) Violations of the Unfair Competition Law; and (6) Violation of the Labor Code Private Attorneys General Act (“PAGA”).

The parties have reached a settlement. On March 23, 2018, the Court granted preliminary approval of the settlement. Plaintiffs now move for final approval of the settlement.

IX. 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.)

X. DISCUSSION

The case has been settled on behalf of all recruiters employed in California by Defendant at any time from June 19, 2013, through March 23, 2018. At the time of preliminary approval, the parties believed there were 268 class members. The parties have since discovered there are actually 309 class members. The parties have agreed to increase the settlement amount, pro rata, from $1,100,000 to $1,268,283.58. Attorneys’ fees, costs, and administration expenses have stayed the same.

The settlement amount includes attorneys’ fees and costs up to $250,000, enhancement payments to the two class representatives of $10,000 to Moses and $5,000 to Youhana, administration expenses of $5,484, and PAGA penalties of $55,000 (of which $41,250 will be paid to the LWDA). In addition to the monetary portion of the settlement, Defendant has agreed to reclassify its California recruiters as non-exempt, or to modify certain recruiters’ job duties so they may remain exempt.

On April 6, 2018, class administrator Analytics Consulting, LLC mailed notices to 309 class members. (Declaration of Caroline Barazesh RE: Notice Procedures (“Barazesh Decl.”), ¶ 10.) Following this mailing, some class members contacted the class administrator to update their addresses and several notice packets were remailed. (Id. at ¶¶ 11-13.) After the notice period was over, it was discovered the class data was incorrect and the settlement payments were incorrectly calculated. (Id. at ¶ 16.) The class administrator offered to send a corrected notice to the class members at no additional charge. (Id. at ¶ 16.)

On August 28, 2018, the corrected class notice was mailed to 307 class members. (Barazesh Decl., ¶ 21.) Two notices remain undeliverable. (See id. at ¶ 22.) There have been no objections and no requests for exclusion. (Id. at ¶¶ 24-25.)

On September 19, 2018, another individual, Ginger Aldama, contacted class counsel claiming to be a class member and requesting to be included in the settlement. (Declaration of Bryan J. Schwartz, Esq., in Support of Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement and Plaintiffs’ Unopposed Motion for Approval of Attorneys’ Fees and Costs (“Schwartz Decl.”), ¶ 5.) Defendant’s counsel confirmed Aldama should be part of the class and she was added as a class member, increasing the class size to 308. (Id. at ¶¶ 5-6.)

The parties then discovered one additional class member, bringing the total number of class members to 309. (Joint Stipulation to Pro Rata Increase Pursuant to Class Action Settlement Agreement, ¶ 2.) The total settlement amount was therefore increased to $1,268,283.58. (Id. at ¶ 3.)

In light of the discovery of the additional class members, the Court continued the hearing on this motion and ordered that notice be provided to the additional class members. On October 26, 2018, notice was mailed to the additional class members. (Declaration of Caroline Barazesh re: Additional Notice Procedures, ¶ 7.) The additional class members did not opt-out or request exclusion from the settlement. (Id. at ¶¶ 8-9.)
The Court previously found that the propo
sed settlement is fair and the Court continues to make that finding for purposes of final approval in light of the lack of objections and the good recovery for the class.

Plaintiffs request incentive awards of $10,000 to Moses and $5,000 to Youhana.

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 to support their requests. Moses states he spent dozens of hours on the case. (Declaration of Dermar Moses in Support of Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement, ¶ 5.) This included assisting and communicating with class counsel, collecting documentary evidence, reviewing pleadings, and participating in mediation. (Ibid.) Moses asserts he suffered significant reputational harm as a result of the lawsuit and experienced great difficulty in finding employment in the industry because potential employers recognized his name from this lawsuit. (Id. at ¶ 6.)

Youhana states he spent at least 25 hours in connection with this case. (Declaration of Edessa Youhana in Support of Plaintiffs’ Unopposed Motion for Final Approval of Class Action Settlement, ¶ 6.) This included assisting counsel with investigation, collecting documentary evidence, reviewing the pleadings, and participating remotely in a day-long mediation. (Ibid.) Based on the declarations, the Court finds the incentive awards are justified and they are 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.) Plaintiffs’ counsel requests attorneys’ fees and costs in the amount of $250,000. Plaintiffs’ counsel has a lodestar of $144,037.50. (Schwartz Decl., ¶ 8.) This results in a multiplier of 1.74. While this is not an especially low multiplier, Plaintiffs’ counsel is only requesting about 20% of the common fund. Moreover, Plaintiffs’ counsel obtained a good recovery for the class. The Court notes the request also includes costs, estimated to be about $10,762.24 through the final administration of the settlement. (Id. at ¶ 10.) The Court finds the fees and costs are justified and they are approved.

* * * * *

Therefore, the motion for final approval of class action settlement and motion for fees and costs are GRANTED.

The Court will set a compliance hearing for July 26, 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.

The Court will prepare the final order if this tentative ruling is not contested. In addition, the Court will sign the proposed order and judgment submitted by Plaintiffs if this tentative ruling is not contested, subject to the modification of the proposed order and judgment to account for the increased number of class members and settlement amount.