SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA

MELISSA POWELL, on behalf of herself and others similarly situated,

Plaintiff,

vs.

CH2M HILL ENGINEERS, INC., a Delaware corporation; CH2M HILL, INC., a business entity of unknown form; and DOES 1 through 50, inclusive,

Defendants.
Case No. 2016-1-CV-297879

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 26, 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 Second Amended Complaint (“SAC”), filed on May 16, 2018, sets forth the following causes of action: (1) Meal Period Liability Under Labor Code § 226.7; (2) Rest Break Liability Under Labor Code § 226.7; (3) Failure to Pay Minimum Wages; (4) Failure to Pay Wages and Overtime, Labor Code § 510; (5) Violation of labor Code § 226(a); (6) Violation of Labor Code § 203; (7) Violation of Business & Professions Code § 17200, et seq.; and (8) Penalties Pursuant to Labor Code § 2699, et seq.
The parties have reached a settlement. On June 29, 2018, the Court granted preliminary approval of the settlement. Plaintiff Melissa Powell (“Plaintiff”) now moves for final approval.

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 a large number of orders and a transcript from other courts in which attorneys’ fees were granted for class action settlements. The request for judicial notice is GRANTED. (Evid. Code, § 452, subd. (d).)

IV. DISCUSSION

As discussed in connection with the motion for preliminary approval, this case has been settled on behalf of all current and former non-exempt employees of CH2M Hill Engineers, Inc., CH2M Hill, Inc., Operations Management International, Inc., CH2M Hill Constructors, Inc., and CH2M Facility Support Services, LLC during the time from July 20, 2012 to December 9, 2017. Pursuant to the settlement, defendants CH2M Hill Engineers, Inc. and CH2M Hill, Inc. (collectively, “Defendants”) will pay the total non-reversionary sum of $900,000. This amount includes attorneys’ fees of $300,000, actual costs, $20,000 for PAGA penalties ($5,000 to the class and $15,000 to the LWDA), an enhancement payment of $5,000 for the class representative, and class administration costs of $15,000.

On July 20, 2018, notice packets were mailed to all 694 identified class members. (Declaration of Chris Lawless (on Behalf of CPT Group, Inc.) With Respect to Notification and Settlement Administration, ¶¶ 4 and 6.) As of October 2, 2018, three notice packets remained undelivered (id. at ¶ 8) and the administrator had not received any objections to the settlement. (Id. at ¶ 9.) Since then, however, the Court has received two written objections from class members. For this reason, as noted below, the Court requests the parties appear at the hearing. The administrator also reported there have been requests for exclusion from two class members – Giuseppe Tomasino and Marisa Greenway. (Id. at ¶ 10.) Even in light of the written objections, which the Court has carefully reviewed and considered, the Court finds the proposed settlement is fair for purposes of final approval.

Plaintiff requests an incentive award of $5,000 for class representative Melissa Powell.

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 spent approximately 38 hours on the case. (Declaration of Melissa Powell in Support of Motion for Final Approval of the Class Action Settlement, ¶ 5.) This included active participation in the litigation, such as providing documents to class counsel and preparing for settlement negotiations. (Ibid.) The Court finds the incentive award is justified 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 in the amount of $300,000. Plaintiff’s counsel has a lodestar of $182,187.50. (Declaration of David Yeremian in Support of Motion for Final Approval of Class Action Settlement, Attorneys’ Fees and Expenses, and Incentive Award, ¶ 24.) This results in a multiplier of 1.65. The Court finds this multiplier is reasonable and that the fees are justified based on a percentage of the common fund. Therefore, the fees are approved. Plaintiff’s counsel also seeks actual costs of $13,405.80. (Id. at ¶ 34.) The costs are approved.

The motion for final approval of class action settlement is GRANTED. However, the Court would like to discuss the two written objections it received from class members, and be prepared for other possible objections that may be raised at the hearing. For this reason, the Court requests that all parties appear at the hearing.