SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

VALERIE COOK, individually and as representative plaintiff on behalf of persons similarly situated,

Plaintiff,

vs.

A IS FOR APPLE, INC., a California corporation, and DOES 1 THROUGH 100,

Defendants.
Case No. 2015-1-CV-279579

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 January 25, 2019, 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. According to the allegations of the Third Amended Complaint (“TAC”), filed on March 23, 2017, plaintiff Valerie Cook (“Plaintiff”) and the putative class members were employed by defendant A is for Apple (“Defendant”) as non-exempt paraprofessional therapists. (TAC, ¶ 7.) During the course of their employment, Plaintiff and the putative class members regularly were not compensated while “on-call,” were not compensated for travel to and from Defendant’s autistic patients, were required to purchase toys and other items needed to provide therapy to Defendant’s autistic patients for which they were not reimbursed, were not compensated for their time purchasing therapy toys and other necessary items, and were not compensated for preparing and submitting reports required by Defendant. (TAC, ¶ 10.) Plaintiff and the putative class members were required to execute a training expense reimbursement agreement that required paraprofessional therapists who did not remain employed with Defendant for at least 12 months to pay Defendant $2,400. (TAC, ¶ 16.)

The TAC sets forth the following causes of action: (1) Violation of Labor Code §§ 510 and 1194 – Failure to Properly Pay Overtime Wages; (2) Violation of Labor Code §§ 201, 202, and 203 – Failure to Pay Wages Due and “Waiting Time” Penalties; (3) Violation of Labor Code § 226 – Failure to Provide Accurate Wage Stubs; (4) Violation of Labor Code §§ 203, 226, 226.7, 52, and 1194 – Failure to Provide Meal Periods or Compensation in Lieu Thereof; (5) Labor Code § 2802 – Failure to Reimburse Expenses; (6) Violation of Business and Professions Code § 17200 – Unfair Business Practices; (7) Violation of Labor Code §§ 510 and 558 – Failure to Properly Pay Overtime Wages; (8) Violation of Labor Code §§ 1174 and 1174.5 – Failure to Maintain Records Required; (9) Violation of Labor Code § 204 – Failure to Pay Wages on a Timely Basis; (10) Violation of Labor Code §§ 226 and 226.3 – Failure to Provide Accurate Pay Stubs; (11) Violation of Labor Code § 216 – Willful Withholding of Wages; and (12) Violation of Civil Code §§ 1667 and 1668 and Labor Code § 432.5.)

The parties previously reached a settlement and, on February 16, 2018, the Court granted preliminary approval of the settlement. Following the hearing on that settlement, the parties realized the class was comprised of approximately 620 individuals rather than 200. The parties then engaged in another mediation session, ultimately reaching a revised settlement. Plaintiff then moved for preliminary approval of the revised settlement. On October 5, 2018, the Court granted preliminary approval of the settlement. 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. REQUEST FOR JUDICIAL NOTICE

Plaintiff requests judicial notice of the following:

i. Declaration of Kevin C. Bedolla in Support of Unopposed Motion for Preliminary Approval of Class Action Settlement for hearing held on October 5, 2018; and

ii. Plaintiff’s Memorandum of Points and Authorities in Support of Unopposed Motion for Preliminary Approval of Class Action Settlement for hearing held on October 5, 2018.

The Court can take judicial notice of these documents as court records. (Evid. Code, § 452, subd. (d).) Accordingly, the request for judicial notice is GRANTED.

IV. DISCUSSION

The case has been settled on behalf of “all non-exempt hourly employees who are employed or have been employed by Defendant, A is for Apple, Inc., in California as Paraprofessional Therapists during the Class Period.” The class period is from April 17, 2011 to August 14, 2017.

Pursuant to the settlement, Defendant will pay a total of $780,000. The settlement amount includes a service award of $10,000 for the class representative, attorneys’ fees of $260,000 (one-third of the total settlement fund), up to $20,000 for costs, and a PAGA payment of $12,000 ($9,000 of which will be paid to the LWDA). The parties have allocated $25,000 for the cost of administering the settlement.

On October 31, 2018, the claims administrator, CPT Group, Inc., mailed notice packets to all 613 class members in the class list. (Declaration of Ani S. Sarich on Behalf of CPT Group, Inc., ¶ 7.) There have been eight requests to be added to the class list, all of which have been approved. (Id. at ¶ 9.) Ultimately, 13 notice packets remain undeliverable. (Id. at ¶ 11.) There have been no objections. (Id. at ¶ 12.) There have been two requests for exclusion. (Id. at ¶ 13.) The average payment is estimated at $748.79, with the highest payment estimated at $10,013.76 and the lowest payment calculated at $3.58. (Id. at ¶ 16.) Excluding the 13 undeliverable notice packets increases the payments slightly. (See ibid.) Although the settlement calls for a payment of up to $25,000 for claims administration costs, the claims administrator is only charging $17,500 and that is the amount now requested.

With regard to the 13 undeliverable notice packets, the parties have agreed and request the Court’s approval to modify the settlement to give those class members until March 1, 2019, to contact the claims administrator and provide an address for payment. After March 1, the amounts remaining for any of the 13 class members who do not contact the claims administrator will be distributed to the other class members on a pro rata basis. The Court will approve this modification.

The Court previously found that the proposed settlement is fair and the Court continues to make that finding for purposes of final approval. The Court will approve the payment of $17,500 to the claims administrator.

Plaintiff requests an incentive award of $10,000 for class representative Valerie Cook.

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 she states she has kept in communication with class counsel, mostly by email, has regularly sought updates, and has made herself available for mediation sessions. (Declaration of Class Representative Valerie Cook, in Support of Unopposed Motion for Final Approval of Class Action Settlement and Provisional Certification of Class, ¶ 8.) She provides a list of time entries showing she spent approximately 108 hours on the case. (Id. at Ex. A.) The Court finds the incentive award is warranted.

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 $260,000. Plaintiff’s counsel asserts he has expended 567 hours on this case at a rate of $450 an hour. (Declaration of Kevin C. Bedolla in Support of Unopposed Motion for Final Approval of Class Action Settlement and Provisional Certification of Class, ¶ 22.) Additionally, James Dal Bon acted as co-counsel in the case until the end of January 2018 and expended about 108.9 hours on the case. (Id. at ¶ 23.) Adding all the hours together results in a negative multiplier for the requested fees when compared to the lodestar. The Court finds the requested fees to be reasonable and they are approved. Plaintiff’s counsel also seeks costs of $12,500. However, Plaintiff’s counsel has only expended $12,095.26 in costs so far. (Id. at ¶ 25.) Consequently, the Court will only approve $12,095.26 in costs.

The motion for final approval of class action settlement is GRANTED, subject to the reduction in costs awarded. Plaintiff’s counsel shall provide the names of the individuals who have opted-out of the settlement at the hearing on this motion so they can be listed in the final order.

The Court will prepare the final order if this tentative ruling is not contested. Plaintiff is directed to submit a judgment for the Court’s signature.

The Court will set a compliance hearing for August 23, 2019 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 Defendant, the status of any unresolved issues, and any other matters appropriate to bring to the court’s attention. Counsel shall also submit an amended judgment as described in Code of Civil Procedure section 384, subdivision (b). 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.