SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

TED STILWELL and STEWART ROSS, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs.

FIRST ALARM, and Does 1 through 50,

Defendants.

And related cross-complaints.
Case No. 2015-1-CV-281763

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 August 16, 2019, at 9:00 a.m. in Department 5. The Court now issues its tentative ruling as follows:

I. INTRODUCTION

This is a class action lawsuit arising from various alleged wage and hour violations. Plaintiffs Ted Stilwell and Stewart Ross (collectively, “Plaintiffs”) allege defendant First Alarm (“Defendant”) failed to reimburse its California employees for all work-related expenses incurred in driving personal vehicles for work, failed to provide employees with signed commission plans and to obtain signed receipts for the commission plans, and failed to furnish employees with accurate wage statements. (Third Amended Complaint (“TAC”), ¶ 5.)

The TAC, filed on September 9, 2016, sets forth the following causes of action: (1) Failure to Reimburse for Work-Related Expenses in Violation of Labor Code § 2802; (2) Violation of California Labor Code § 226; (3) Unlawful, Unfair and Fraudulent Business Practices Pursuant to Business & Professions Code § 17200, et seq.; and (4) Private Attorneys General Act of 2004: Labor Code Section 2698.

The parties have reached a settlement. On May 10, 2019, the Court granted preliminary approval of the settlement. Plaintiffs now move for final approval of the settlement.

II. REQUEST FOR JUDICIAL NOTICE

Plaintiffs request judicial notice of several documents previously filed in connection with the motion for preliminary approval: (1) Plaintiffs’ Application for an Order Granting Preliminary Approval; (2) the Declaration of Robin G. Workman; (3) the Declaration of Ted Stilwell; and (4) the Request for Judicial Notice. The request is GRANTED. (Evid. Code, § 452, subd. (d).)

III. DISCUSSION

The case has been settled on behalf of the following class:

[A]ll individuals who are currently or were formerly employed as sales representatives for First Alarm during the class period and who have not opted out of the class.
The class period is June 11, 2011, to March 31, 2019.

As discussed in connection with the motion for preliminary approval, defendant First Alarm (“Defendant”) will pay a non-reversionary total of $275,000. The settlement agreement seeks incentive awards of $20,000 for plaintiff Stilwell and $7,500 for plaintiff Ross. It also encompasses attorneys’ fees and costs of $100,000, settlement administration costs of $7,000, and a PAGA allocation of $5,000 ($3,750 of which will be paid to the LWDA. The amounts in checks not cashed within six months will be distributed to a cy près recipient – Legal Aid at Work. Payments to class members will be made based on workweeks.

On June 3, 2019, the settlement administrator mailed notice packets to all 45 class members. (Declaration of William Wickersham in Support of Plaintiffs’ Application for Order: (a) Granting Final Approval of Class Settlement; (b) Approving Request for Claims Administrator Fee; (c) Approving Request for Attorneys’ Fees and Costs; and (d) Approving Request for Incentive Payment to Class Representatives Ted Stilwell and Stewart Ross (“Wickersham Decl.”), ¶ 6.) Ultimately, no notice packets remain undeliverable. (Ibid.) As of July 25, 2019, there have been three requests for exclusion and no objections. (Id. at ¶ 7.)

The average amount class members will receive is $3,038.89, with the highest amount being $13,891.16. (Wickersham Decl., ¶ 8.) Stilwell’s anticipated payment will be $3,822.63 and Ross’s anticipated payment will be $5,142.35. (Ibid.)

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval.

Plaintiffs request service awards of $20,000 for plaintiff Stilwell and $7,500 for plaintiff Ross.

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.)

Stilwell filed a declaration in connection with the motion for preliminary approval detailing his participation in the action. The Court stated Ross should do the same. In light of the fact that Ross passed away shortly after the parties entered into the settlement, however, class counsel and Ross’s wife have submitted declarations on his behalf.

Stilwell has actively participated in the case since before the case was filed, has responded to discovery, and attended a mediation and two settlement conferences, which required him to spend several days driving from his home in San Diego. (Declaration of Theodore E. Stilwell, ¶ 8.) Ross attended the mediation and one settlement conference, and regularly worked with and communicated with Plaintiffs’ counsel. (Declaration of Robin G. Workman, ¶ 23.)

The Court finds incentive awards are warranted. However, Stilwell’s incentive award will be reduced to $15,000. The Court notes it has never awarded a higher incentive award and has only very rarely awarded this amount. The amount, however, is justified by Stilwell’s extraordinary efforts in pursuing and participating in this litigation.

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 $100,000. This is a little more than a third of the total settlement amount. Plaintiffs’ counsel states the $100,000 includes $92,945.88 in costs and $7054.12 for attorneys’ fees. Plaintiffs’ counsel provides evidence demonstrating a lodestar of $204,445.50, not including any of lead Plaintiffs’ counsel’s time. (Declaration of Robin G. Workman, ¶ 15.) The Court will approve the fees.

The motion for final approval of class action settlement is GRANTED, subject to the reduction in the Stilwell’s incentive award.

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

The Court will set a compliance hearing for March 20, 2021, 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 Defendants, 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.

NOTICE: The Court does not provide court reporters for proceedings in the complex civil litigation departments. Parties may arrange for a private court reporter to provide services, but those arrangements must be consistent with the local rules and policies posted on the Court’s website.