SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

DOANYA PUCCINI, an individual, on behalf of herself, and on behalf of all persons similarly situated,

Plaintiff,

vs.

EARTHBOUND FARM, LLC, a Limited Liability Company; and Does 1 through 50, inclusive,

Defendants.
Case No. 2017-1-CV-308643

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 October 12, 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 Complaint (“FAC”), filed on June 28, 2017, sets forth the following causes of action: (1) Unfair Competition in Violation of Cal. Bus. & Prof. Code § 17200, et seq.; (2) Failure to Pay Overtime Wages in Violation of Cal. Lab. Code § 510, et seq.; (3) Failure to Provide Accurate Itemized Statements in Violation of Cal. Lab. Code § 226; (4) Failure to Provide Wages When Due in Violation of Cal. Lab. Code §§ 201, 202, and 203; and (5) Violation of the Private Attorneys General Act [Labor Code § 2698, et seq.].

The parties have reached a settlement. On June 8, 2018, the Court granted preliminary approval of the settlement. Plaintiff Doanya Puccini (“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. DISCUSSION

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

[A]ll individuals who both worked for Earthbound Farm, LLC as non-exempt employees in California at any time from April 17, 2013 to October 9, 2017 and were paid an attendance bonus during that period.

As discussed in connection with the motion for preliminary approval, defendant Earthbound Farm, LLC (“Defendant”) will pay a total of $500,000. This amount includes attorneys’ fees of up to $125,000, costs of up to $12,000, a PAGA payment of $5,000 ($3,750 of which will be paid to the LWDA), an enhancement payment of $10,000 for the class representative, and class administration costs of up to $25,000.

On July 6, 2018, the claims administrator, KCC Class Action Services, LLC, mailed the class notice to 940 class members. (Declaration of Bernella Osterlund Re: Notice Procedures, ¶ 3.) As of September 18, 2018, 16 notices remain undeliverable. (See id. at ¶ 4.) There have been no objections and no requests for exclusion from the settlement. (Id. at ¶¶ 6-7.)

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 $10,000 for class representative Doanya Puccini.

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.)

Puccini has submitted a declaration in which she states she has been actively involved in the case. (Declaration of Doayna [sic] Puccini in Support of Motion for Final Approval of Class Settlement, ¶ 3.) She states she was in regular contact with her attorneys, reviewed important court filings and spent considerable time on the issues presented during the litigation and in the settlement process. (Id. at ¶ 9.) She estimates she spent between 40 and 50 hours on the case. (Ibid.) The Court finds an incentive award is justified. The amount requested, however, is higher than this Court normally awards and the record does not support an increased sum. Therefore, the Court will approve an incentive award of $6,000.

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 $125,000. Plaintiff’s counsel has a lodestar of $103,362.25. (Declaration of Kyle Nordrehaug in Support of Motion for Award of Attorneys’ Fees, Costs and Service Award, ¶ 6.) This results in a multiplier of 1.21. This is not a large multiplier and, further, the requested fee amount is only 25% of the common fund. Therefore, the Court finds the fees are reasonable and they are approved.

Plaintiff’s counsel also seeks actual costs totaling $12,000. Plaintiff’s counsel states actual costs in this case total $15,626.70, more than the requested amount. (Declaration of Kyle Nordrehaug in Support of Motion for Award of Attorneys’ Fees, Costs and Service Award, ¶ 7.) The costs are approved.

The motion for final approval of class action settlement is GRANTED IN PART. The settlement is approved subject to the reduction to the class representative incentive award discussed above. The Court will sign the proposed final approval order and judgment submitted by Plaintiff, with the incentive award modification, if this tentative ruling is not contested.