SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

JOSE FLORES-VAZQUEZ, individually, and on behalf of other members of the general public similarly situated,

Plaintiff,

vs.

LION FOOD CENTER, a business entity of unknown form; LION FOODS LLC, a California limited liability company; LION LEGACY RISK MANAGEMENT I, LLC, a California limited liability company; LION LEGACY RISK MANAGEMENT II, LLC, a California limited liability company; LION LEGACY RISK MANAGEMENT III, LLC, a California limited liability company; LION MARKET STORY, LLC; a California limited liability company; LION MARKETS, INC., a California corporation; LION NEWARK SHOPPING CENTER, a California limited liability company; LION SARATOGA, LLC, a California limited liability company; LION SHOPPING CENTER, a California limited liability company; T.L. LONGCHAMP Corporation, a California corporation; and DOES 1 through 10, inclusive,

Defendants.
Case No. 2017-1-CV-310217

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEYS’ FEES, COSTS AND EXPENSES, AND A CLASS REPRESENTATIVE ENHANCEMENT PAYMENT

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on October 5, 2018, 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 Labor Code violations. The Class Action Complaint, filed on May 12, 2017, sets forth the following causes of action: (1) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime); (2) Violation of California Labor Code §§ 1182.12, 1194, 1197, 1197.1, and 1198 (Unpaid Minimum Wages); (3) Violation of California Labor Code §§ 226.7, 512(a), and 1198 (Failure to Provide Meal Periods); (4) Violation of California Labor Code §§ 226.7 and 1198 (Failure to Provide Rest Periods); (5) Violation of California Labor Code §§ 226(a), 1174(d), and 1198 (Non-Compliant Wage Statements and Failure to Maintain Payroll Records); (6) Violation of California Labor Code §§ 201 and 202 (Wages Not Timely Paid Upon Termination); (7) Violation of California Business & Professions Code § 17200, et seq. (Unlawful Business Practices); and (8) Violation of California Business & Professions Code § 17200, et seq. (Unfair Business Practices).

The parties have reached a settlement. On June 1, 2018, the Court granted preliminary approval of the settlement. Plaintiff Jose Flores-Vazquez (“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

A. Provisions of the Settlement

The case has been settled on behalf of the following class: All persons who worked for Defendants in California any time during the period from May 12, 2013 to June 1, 2018 (excluding exempt employees), in the Fish Department, Meat Department, Grocery Department, Produce Department, Office, and at the Checkout Counter.
As discussed in connection with the motion for preliminary approval, Defendants will pay a total of $750,000 pursuant to the settlement. This amount includes attorneys’ fees of $250,000, costs of up to $20,000, an enhancement payment of $5,000 for the class representative, and $20,000 to the settlement administrator. Defendants have also agreed to pay the class representative an additional $5,000 in exchange for a general release.

On July 2, 2018, class notices were mailed to 1,217 class members by the claims administrator, CPT Group, Inc. (Declaration of Carole Thompson on Behalf of CPT Group, Inc. the Settlement Administrator, ¶ 5.) As of September 6, 2018, 29 class notices remain undeliverable. (Id. at ¶ 6.) There has been one request for exclusion and there have been no objections. (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. The claims administrator did not provide the name of the class member who requested to be excluded from the settlement. Plaintiff shall provide that name to the Court so it can incorporated into the final approval order.
Plaintiff requests an incentive award of $5,000 for class representative Jose Flores-Vazquez.

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 in which he states he spent between 40 and 50 hours on the case. (Declaration of Jose Flores-Vazquez in Support of Motion for Final Approval of Class Action Settlement and Motion for Attorneys’ Fees, Costs and Expenses, and a Class Representative Enhancement Payment, ¶ 9.) This included communication with Plaintiff’s counsel, reviewing documents, and participating in discovery. (Id. at ¶ 5.) The Court finds the incentive award is justified and it is approved.

Plaintiff also seeks an additional $5,000 payment for a general release. As noted in the order granting preliminary approval of the settlement, class members are already releasing all of the claims made in this case as well as claims that could have been raised in this action, and it is not apparent what additional claims Plaintiff is releasing to obtain an extra payment. The Court previously stated that, absent supplemental information, the additional payment would likely not be justified. Plaintiff has provided no reason why he deserves an additional payment beyond what the class members are receiving. The Court will not approve the additional payment for the general release.

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. Plaintiff’s counsel has a lodestar of $182,563.25. (Declaration of Raul Perez in Support of Motion for Final Approval of Class Action Settlement and Motion for Attorneys’ Fees, Costs and Expenses, and a Class Representative Enhancement Payment, ¶ 11.) This results in a multiplier of 1.37. The Court finds the requested attorneys’ fees are reasonable as the multiplier is not large and Plaintiff’s counsel is requesting just one-third of the common fund. The fees are approved. Plaintiff’s counsel also seeks actual costs of $18,180.72. (Id. at ¶ 14.) The costs are also approved.

The motion for final approval of class action settlement is GRANTED. The motion for fees, costs, and a representative enhancement payment is GRANTED IN PART. The fees, costs, and incentive award are approved. The Court will not approve the additional $5,000 release payment.

The Court will sign the order and the judgment submitted by Plaintiff if this tentative ruling is not contested, with the exception that the additional $5,000 release payment to Plaintiff in the order will be stricken. Additionally, the name of the class member who has requested exclusion will be added to the order.