SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

SAMANTHA STOLLMAN, on behalf of herself and all others similarly situated,

Plaintiff,

vs.

OLD PRO, INC., LOCAL UNION 271, GBPA, INC. dba DAN GORDON’S, OLIVER GORDON, STEVE SINCHEK, and DOES 1-100, inclusive,

Defendants.
Case No. 2018-1-CV-321842

TENTATIVE RULING RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS SETTLEMENT

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 First Amended Class Action Complaint, filed on May 11, 2018, sets forth the following causes of action: (1) Failure to Pay Overtime Wages; (2) Failure to Pay Minimum Wage; (3) Failure to Provide Mandated Meal Periods; (4) Failure to Provide Mandated Rest Periods; (5) Failure to Provide Timely and Accurate Wage Statements; (6) Failure to Pay All Wages Due at Termination – Waiting Time Penalties; and (7) Unfair Practice Under the Unfair Competition Act. The parties have reached a settlement. Plaintiff now moves for preliminary 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 current and former California based non-exempt employees who worked for Defendants as waiters, waitress [sic], and bar tenders [sic] (“Servers”) (or similarly nomenclature [sic] positions performing substantially identical functions and/or duties) during the Class period (from January 16, 2014 through the date of the Court’s order granting preliminary approval of this Settlement).
(Declaration of Matthew S. Da Vega in Support of Plaintiff’s Motion for Preliminary Approval of Class Settlement (“Da Vega Decl.”), ¶ 19.)

Pursuant to the settlement, defendants Old Pro, Inc., Local Union 271, GBPA, Inc. dba Dan Gordon’s, Oliver Gordon, and Steve Sinchek (collectively, “Defendants”) will pay a total of $110,000. (Da Vega Decl., ¶ 20.) The settlement amount includes a service award of $5,000 for the class representative, attorneys’ fees of $36,666.66 (one-third of the total settlement fund), up to $15,000 for costs, and a PAGA payment of $1,000 ($750 of which will be paid to the LWDA). (Id. at ¶¶ 24-26.) Settlement administration costs are estimated to be approximately $10,000. (Id., Ex. 1, ¶ 17(k).)
Payments to class members will be based on work weeks. (Da Vega Decl., Ex. 1, ¶ 17(g).) The settlement will provide a gross payment of approximately $136 to each class member. Settlement checks uncashed after 120 days from the date of the class-wide distribution will be paid as a cy pres payment to the LWDA unclaimed wage fund. (Id. at ¶ 21.)

B. Fairness of the Settlement

Plaintiff asserts the settlement is the product of arm’s-length negotiations assisted by an experienced mediator. Plaintiff contends information was obtained through class member interviews and informal discovery that informed Plaintiff’s assessment of the strengths and weaknesses of the case. Plaintiff believes the amount of the settlement is reasonable given: (1) the difficulty of the claims; (2) the degree of risk and uncertainty involved in further litigation; (3) the amount of time that would pass before Plaintiff and the class members would see any benefit from a verdict in their favor; and (4) the ability of Defendants to pay.

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.
Plaintiff will seek 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.)

Prior to final approval of the settlement, Plaintiff must submit a declaration specifically detailing her participation in this action.

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 will seek attorneys’ fees of $36,666.66 (one-third of the total settlement fund), plus up to $15,000 for costs. While one-third of the common fund for attorneys’ fees is generally considered reasonable, Plaintiff’s counsel should submit lodestar information (including hourly rates and hours worked) prior to the final approval hearing in this matter so the Court can compare the lodestar information with the requested fees.

C. Conditional Certification of Class

Plaintiff requests the putative class be conditionally certified for purposes of the settlement. Rule 3.769(d) of the California Rules of Court states that “[t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing.” California Code of Civil Procedure Section 382 authorizes certification of a class “when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court . . . .”

As interpreted by the California Supreme Court, Section 382 requires: (1) an ascertainable class; and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (2004) 34 Cal.4th 319, 326.) The “community-of-interest” requirement encompasses three factors: (1) predominant questions of law or fact; (2) class representatives with claims or defenses typical of the class; and, (3) class representatives who can adequately represent the class. (Id. at p. 326.) “Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield “substantial benefits” to both “the litigants and to the court.” (Blue Chip Stamps v. Superior Court (1976) 18 Cal.3d 381, 385.)

As explained by the California Supreme Court,

The certification question is essentially a procedural one that does not ask whether an action is legally or factually meritorious. A trial court ruling on a certification motion determines whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants.

(Sav-On Drug Stores, Inc. v. Superior Court, supra, 34 Cal.4th at p. 326, internal quotation marks, ellipses, and citations omitted.)

Class members can be ascertained from Defendants’ records. There are common issues in this case regarding Defendants’ policies and whether they violated the Labor Code. No issue has been raised regarding the typicality or adequacy of Plaintiff as class representative. In sum, the Court finds that the proposed class should be conditionally certified.

D. Class Notice

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 notice generally complies with the requirements for class notice. (See Da Vega Decl., Ex. 1, Ex. A.) It provides basic information about the settlement, including the settlement terms, and procedures to object or request exclusion. The notice is approved.

E. Conclusion

The motion for preliminary approval of class settlement is GRANTED. The final approval hearing is set for January 25, 2019, at 9:00 a.m. in Department 5.

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