SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA

PERLA GUADALUPE SILVA MAGANA, on behalf of herself and all others similarly situated,

Plaintiffs,

vs.

VMK, INC. dba PURPLE LOTUS PATIENT CENTER; NEW WORLD HEALTH STAFFING COMPANY, INC.; MATTHEW KRISHNAMACHARI; GAETANO RICCI, and DOES 1-100, inclusive,

Defendants.

Case No. 18CV327971

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

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on February 28, 2020, 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 First Amended Complaint (“FAC”), filed on September 20, 2019, sets forth the following causes of action: (1) Failure to Pay Overtime Wages; (2) Failure to Pay Minimum Wage; (3) Failure to Provide Meal Breaks; (4) Failure to Provide Rest Breaks; (5) Failure to Furnish Timely/Accurate Wage Statements (Record-Keeping Violations); (6) Failure to Pay All Wages Due at Discharge in Timely Manner (Waiting-Time Penalties); (7) Unlawful and/or Unfair Business Practices; and (8) Violations of Private Attorney General Act of 2004.

The parties have reached a settlement. On October 11, 2019, the Court granted preliminary approval of the settlement. Plaintiff Perla Guadalupe Silva Magana (“Plaintiff”) now moves for final 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.
The case has been settled on behalf of the following class:

[C]urrent and former hourly-paid or non-exempt employees in California who worked for Defendants at any time during the Class Period who have not previously agreed to a general release of claims against Defendants for the Class Period.

The “class period” is May 9, 2014, through the date of preliminary approval.

As discussed in connection with preliminary approval, defendants VMK, Inc. dba Purple Lotus Patient Center and New World Health Staffing Company, Inc. (collectively, “Defendants”) will pay a total amount of $135,000. This includes allocations of $45,000 for attorneys’ fees, up to $15,000 for costs (actual costs are now $12,981), $5,000 for a service award, $5,000 for PAGA ($3,750 of which will be paid to the LWDA), and settlement administration costs (now set at $5,778). Checks not cashed within 90 days after issuance will be given to a cy pres recipient – Law Foundation of Silicon Valley.

On December 16, 2019, the settlement administrator mailed notice packets to all 133 class members. (Declaration of Jeremiah Kincannon (on Behalf of Simpluris, Inc.) Regarding Notice and Settlement Administration (“Kincannon Decl.”), ¶ 7.) Ultimately, four notice packets have remained undeliverable. (Id. at ¶ 8.) As of January 31, 2020, there have been no requests for exclusion and no objections to the settlement. (Id. at ¶¶ 10-11.)

Following all deductions, the net settlement amount is $62,491. (Kincannon Decl., ¶ 12.) The highest settlement share to be paid is approximately $1,307.01 and the average is approximately $469.86. (Ibid.) The Court previously found the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.

Plaintiff requests a class representative incentive award of $7,500 for the class representative – Perla Guadalupe Silva Magana.

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 detailing her participation in the lawsuit. Plaintiff states she spent time on the phone and in person with class counsel answering questions and explaining Defendant’s policies and practices. (Declaration of Class Representative Perla Guadalupe Silva Magana in Support of Motion for Final Approval of Class Settlement, ¶ 7.) She gathered information by searching for and reviewing documents, and contacting former employees. (Ibid.) Overall, she spent approximately 30 to 40 hours on the case. (Ibid.) The Court finds the incentive award is warranted 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.) Plaintiffs’ counsel requests attorneys’ fees in the amount of $45,000 (1/3 of the total settlement amount). Plaintiff’s counsel provides evidence demonstrating a lodestar of $59,900, which results in a negative multiplier. (Declaration of Matthew S. Da Vega in Support of Plaintiff’s Motion for Final Approval of Class Settlement and Attorney Fees and Costs (“Da Vega Decl.”), ¶ 19.) Therefore, the attorneys’ fees are reasonable and they are approved.

Plaintiff requests $12,981 for actual incurred costs. (Da Vega Decl., ¶ 20.) The requested costs are approved.

The motion for final approval of class action settlement is GRANTED.

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

The Court will set a compliance hearing for August 28, 2020 at 10:00 A.M. in Department 3. 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 may appear at the compliance hearing telephonically.