SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

MARLA MARIE DAVIS, individually and on behalf of all others similarly situated,

Plaintiff,

vs.

CAVALRY SPV I, LLC, a Delaware limited liability company; and DOES 1 through 10, inclusive,

Defendants.
Case No. 2016-1-CV-301730

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

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on August 17, 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 brought by plaintiff Marla Marie Davis (“Plaintiff”) pursuant to the California Fair Debt Buying Practices Act (“CFDBPA”). According to the Complaint, filed on October 26, 2016, Plaintiff is alleged to have incurred a financial obligation in the form of a consumer credit account issued by Citibank, N.A. (Complaint, ¶ 12.) Plaintiff denies any debt is owed. (Ibid.) On December 8, 2015, the alleged debt was sold to defendant Cavalry SPV I, LLC (“Defendant”) for collection purposes. (Id. at ¶ 15.) On July 2, 2016, Defendant sent a written communication to Plaintiff. (Complaint, ¶ 17.) The communication provided the notice required by the CFDBPA in smaller than 12-point type. (Id. at ¶ 19.)
The Complaint sets forth a single cause of action for violation of the CFDBPA.

The parties have reached a settlement. A motion for preliminary approval of the settlement was previously set for hearing on March 9, 2018. The Court found, however, that supplemental briefing was needed. After the supplemental briefing was filed and a further hearing was held, the Court granted the motion for preliminary approval of the settlement. The parties now move for final approval of the settlement. Plaintiff has filed a separate motion for attorneys’ fees and costs

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
As discussed in connection with the motion for preliminary approval, the case has been settled on behalf of the following class:

[A]ll persons with addresses in California [] to whom CAVALRY sent, or caused to be sent, an initial written communication in the form of Exhibit “1,” attached to Plaintiff’s Complaint [] in an attempt to collect a charged-off consumer debt originally owed to CITIBANK, N.A., [] which was sold or not returned as undeliverable by the U.S. Post Office [] during the period one year prior to the date of filing this action through the date of class certification.

Pursuant to the settlement, Defendant will pay $1,000 to Plaintiff and $84,820 to the class ($10 to each class member). Defendant will also pay an incentive award of $3,000 to Plaintiff and attorneys’ fees and costs up to $60,000. Settlement checks remaining uncashed after 90 days from the mailing date will be paid to the Katharine & George Alexander Community Law Center as a cy pres recipient.

On May 22, 2018, notices were mailed to 8,214 class members. (Affidavit of Bailey Hughes, ¶ 7.) As of July 17, 2018, 679 notices were returned as undeliverable with no forwarding address and 124 notices were either forwarded by the U.S. Postal Service to a new address, or were returned with a new address and remailed. (Id. at ¶¶ 9-10.) As of July 17, 2018, the class administrator, First Class, Inc., received no objections and no requests for exclusion. (Id. at ¶¶ 11-12.) Provided with the papers to the Court, however, are two requests for exclusion both dated June 4, 2018 that were sent to counsel for Defendant. (Declaration of Tomio B. Narita in Support of Joint Motion for Final Approval of Class Action Settlement, ¶ 2.) Those class members – Matthew Richard Quick and Alyson Breanne Quick – shall be excluded from the class.

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.
Plaintiff requests an incentive award of $3,000 for class representative Marla Marie Davis.

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.)

Davis has submitted a declaration stating she communicated with class counsel on many occasions, and reviewed and signed documents. (Declaration of Class Representative Marla Marie Davis in Support of Final Approval of Class Action Settlement and Service Award, ¶¶ 9 12.) While it is not clear how many hours Davis spent on the case, the Court finds the incentive award is justified and it 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 and costs in the amount of $57,636.57. This is based on Plaintiff’s counsel’s lodestar of $57,130 and $506.57 in costs. (Declaration of Fred W. Schwinn in Support of Motion for Attorney Fees and Costs, ¶ 13, 15; Declaration of Raeon R. Roulston in Support of Motion for Attorney Fees and Costs, ¶ 12, 14; Declaration of Matthew C. Salmonsen in Support of Motion for Attorney Fees and Costs, ¶ 10, 12.) The Court finds the requested attorneys’ fees are reasonable as they match Plaintiff’s counsel’s lodestar for work actually expended on this action.

The motion for final approval of class action settlement and the motion for attorney fees and costs are GRANTED.

The Court will sign the orders submitted by the parties if this tentative ruling is not contested. The Order Finally Approving Class Action Settlement will also be treated as the judgment in this action.