AMBER GREEN, on behalf of herself and all others similarly situated,

Plaintiff,

vs.

GRATEFUL, INC. and DOES 1 through 10,

Defendants.
Case No. 2017-1-CV-311495

TENTATIVE RULING RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEYS’ FEES AND COSTS AND CLASS REPRESENTATIVE ENHANCEMENT AWARD

The above-entitled action comes on for hearing before the Honorable Thomas E. Kuhnle on February 9, 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. Plaintiff Amber Green (“Plaintiff”) seeks to represent a class of all current and former nannies employed by defendant Grateful, Inc. (“Defendant”). (Complaint, ¶ 2.) The Complaint, filed on June 7, 2017, sets forth the following causes of action: (1) Failure to Pay Minimum Wages; (2) Failure to Provide Off-Duty Meal Periods; (3) Failure to Authorize and Permit Rest Periods; (4) Failure to Reimburse Business Expenses; (5) Failure to Provide Accurate Wage Statements; (6) Waiting Time Penalties; (7) Unlawful Business Practices; and (8) Violation of the Private Attorneys General Act of 2004.

The parties have reached a settlement. On September 29, 2017, 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. DISCUSSION

The case has been settled on behalf of the following class: All nannies and governesses employed by Grateful, Inc. in the State of California from March 9, 2013, through the date of preliminary approval. There are 29 class members.

As discussed in connection with the motion for preliminary approval, Defendant will pay a total amount of $450,000 pursuant to the settlement. This amount includes $150,000 for attorneys’ fees, costs of $7,206.33, a service payment of $10,000, a PAGA payment of $25,000 (75% of which will go to the California Labor and Workforce Development Agency), settlement administration costs of $4,654, and $16,102.17 for Defendant’s estimated share of applicable payroll taxes. This leaves a net settlement fund of $243,287.50. (Declaration of Hunter Pyle in Support of Plaintiff’s Unopposed Motion for Final Approval of Class Action Settlement (“Pyle Decl.”), ¶ 33.) Each class member will receive an average payment of approximately $8,389.22, with the lowest recovery at $279.31 and the highest recovery at $22,667.64. (Declaration of Christina Francisco Regarding Notice and Settlement Administration (“Francisco Decl.”) ¶ 10.)

The settlement administrator, Simpluris, Inc., mailed notices to 29 class members on November 3, 2017. (Francisco Decl., ¶ 8.) Ultimately, one notice remained undeliverable. (Id. at ¶ 9.) As of January 18, 2018, there have been no objections or requests for exclusion from the settlement. (Id. at ¶¶ 11-12.)

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

In the event that checks remain uncashed after 180 days have passed from the date of mailing, the parties request that 50% of the amount of the checks be distributed to a cy pres charity – Legal Aid at Work – and the remaining 50% distributed as required by Code of Civil Procedure section 8384. (Pyle Decl., ¶ 37; Declaration of Joan Graff in Support of Cy Pres Award.) The Court approves the cy pres recipient.

Plaintiff requests a class representative incentive award of $10,000.

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.)
Plaintiff has submitted a declaration detailing her participation in the case. She states she has spent approximately 35-40 hours on the case, including telephone conferences and correspondence with class counsel. (Declaration of Amber Green in Support of Motion for Attorneys’ Fees and Costs and Class Representative Enhancement Award, ¶¶ 17-18.) Based on Plaintiff’s declaration, the Court finds Plaintiff has justified the incentive award 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.) Plaintiff’s counsel requests attorneys’ fees of $150,000 (1/3 of the total settlement fund) plus costs of $7,206.33. As a cross-check on the reasonableness of the fee award, Plaintiffs’ counsel provides a lodestar figure of $129,453.50. (Pyle Decl., ¶ 18.) This results in a multiplier of 1.16. The Court finds the requested attorneys’ fees are reasonable and the fees and costs are approved.

The motion for final approval of class action settlement and motion for attorneys’ fees and costs and class representative enhancement award are GRANTED.

The Court will sign the [Proposed] Order Granting motion for Final Approval of Class Action Settlement and Motion for Attorneys’ Fees, Costs and Class Representative Enhancement Award; and Judgment if this tentative ruling is not contested.