SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 1, Honorable Brian C. Walsh Presiding JeeJee Vizconde, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408.882.2110 To contest the ruling, call (408) 808-6856 before 4:00 P.M. Court Reporters are not provided. Please consult our Court s website, www.scscourt.org, for the rules, policies and required forms for the court s appointment by stipulation of privately-retained court reporters. LAW AND MOTION TENTATIVE RULINGS DATE: DECEMBER 22, 2017 TIME: 9:00 A.M. LINE # CASE # CASE TITLE RULING LINE 1 16CV293366 Puentes, et al. v. Atlantic Click on Line 1 for Ruling Concrete, Inc. LINE 2 16CV294904 Rodriguez v. Manpower, Click on Line 2 for Ruling Inc./California Peninsula LINE 3 16CV295143 Diaz v. Heavenly Click on Line 3 for Ruling Construction, Inc. LINE 4 16CV299728 Perez v. California Click on Line 4 for Ruling Drywall Co. LINE 5 17CV306547 Diaz v. WeDriveU, Inc. CLICK on Line 5 for Ruling * Issued on 12/15/17 LINE 6 17CV316438 Soriano v. Flagship Facility Services, Inc. CLICK on Line 6 for Ruling LINE 7 115CV284956 Staats v. City of Palo Alto Click on Line 7 for Ruling

Calendar Line 1 Case Name: Victor Melendrez Puentes, et al. v. Atlantic Concrete, Inc., et al. Case No.: 16-CV-293366 This is a putative wage and hour class action by employees of defendant Atlantic Concrete, Inc. The parties have reached a settlement with respect to meal and rest break claims by Concrete Finishrs, which the Court preliminarily approved on June 20, 2017. 1 Plaintiffs now move for final approval of the settlement and approval of their attorney fees, costs, and enhancement awards. Their motion is unopposed. I. Legal Standard for Approving a Class Action Settlement 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, internal citations and quotations omitted.) 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, 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. 1 Plaintiffs will dismiss their claims on behalf of employees in other job classifications without prejudice. 1

(Wershba v. Apple Computer, Inc., supra, 91 Cal.App.4th at p. 245, citing Dunk v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to give rubber-stamp approval to a settlement; in all cases, it must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished, based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) II. Terms and Administration of Settlement The terms of the settlement are as follows. The $300,000 non-reversionary settlement includes a $3,750 payment to the California Labor and Workforce Development Agency associated with plaintiffs PAGA claim. Attorney fees of up to $100,000 (one-third of the gross settlement), litigation costs estimated at $5,330.21, and administration costs estimated at $8,000 will also be paid from the gross settlement. Plaintiffs will seek incentive payments of $6,500 each, for a total of $39,000. The remaining net settlement will be distributed to class members pro rata based on their wages paid during the class period. Class members who are defendant s current employees were not required to submit claims; however, former employees were required to submit a claim. At preliminary approval, the Court estimated that the average recovery would be $877.56 to each of the 164 estimated class members. Funds unclaimed after 180 days will be distributed to the Katherine & George Alexander Community Law Center as a cy pres beneficiary. Class members who do not opt out of the settlement will release any and all individual and class wage and hour claims, debts, liabilities, demands, obligations, penalties, guarantees, costs, expenses attorneys fees, damages, action or causes of action, whether known or unknown, that were actually alleged in the Complaint or could have been brought based on the specific factual allegations contained in the Complaint, and any amendments thereto. The notice process has now been completed. There were no objections to the settlement and no requests for exclusion from the class. Of 157 notice packets, 8 were remailed to updated addresses located through skip tracing and 3 were ultimately undeliverable. 40 of the 157 class members were current employees who were not required to submit a claim form to receive a payment, and 28 of the remaining 117 former employee class members submitted a claim. The 68 class members who will receive a settlement payment represent 43.31% of the settlement class. The claims administrator estimates that the average class member payment will be $2,087.13, with a maximum payment of $4,989.25. At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to plaintiffs claims. It finds no reason to deviate from this finding now, especially considering that there are no objections. The Court consequently finds that the settlement is fair and reasonable for purposes of final approval. While the participation rate among former employees is somewhat lower than the Court would have hoped, plaintiffs proposed a claims process for these class members to facilitate administration of the settlement and ensure payment of the settlement fund to participating class members rather than through the cy pres process, given the expected low participation rate among former employees. The notice process was robust, with a 60-day response period, and a Spanish translation of the 2

notice was provided. That result that only 3 notice packets were ultimately undeliverable and 28 claim forms were submitted shows that adequate notice was provided to the class. At the final fairness hearing, counsel should update the Court on the receipt and treatment of any late claim forms in the weeks following the administrator s execution of his declaration on October 23. III. Attorney Fees, Costs, and Incentive Award Plaintiffs seek a fee award of $100,000, or 1/3 of the gross settlement, which is not an uncommon contingency fee allocation. This award is facially reasonable under the common fund doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiffs also provide a lodestar figure of $116,652.50, based on 171.8 hours expended on the case by two experienced attorneys with billing rates of $575 and $750 per hour. The lodestar does not include approximately 10-20 hours spent on the case by law clerks and administrative support staff and an estimated 20-30 hours that class counsel will spend in connection with final approval and administration of the settlement. The fee request is thus appreciably below the lodestar figure in this case. As a cross-check, the lodestar supports the 1/3 percentage fee requested, particularly given that there are no objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503-504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].) Plaintiffs also request $5,373.06 in costs, almost identical to the $5,330.21 estimate that was provided at preliminary approval. The costs are reasonable based on the summary provided by plaintiffs. Plaintiffs request $9,995 in administrative costs. While this request does not necessarily appear unreasonable, it significantly exceeds the $8,000 estimate that was provided at preliminary approval. This discrepancy is not addressed in the moving papers, and counsel is accordingly directed to explain it at the hearing. Finally, the six named plaintiffs request service awards of $6,500 each, for a total of $39,000. To support these requests, they submit declarations describing their efforts on the case and indicating that they each spent approximately 60 hours performing their duties as class representatives. The Court finds that the named plaintiffs are entitled to representative awards, and the amounts requested are reasonable. IV. Conclusion and Order Plaintiffs motion for final approval is tentatively GRANTED, subject to counsel s presentation regarding the claims submission process and administrative costs as discussed above. The following class will be certified for settlement purposes: All former and current non-exempt employees of Defendant who worked in California under the classification of Concrete Finisher during the period from March 30, 2012 through December 31, 2016. 3

The Court will prepare the order. - oo0oo - 4

Calendar Line 2 Case Name: Sarah Rodriguez v. Manpower, Inc./California Peninsula., et al. Case No.: 16-CV-294904 This is a putative wage and hour class action by employees of defendant Manpower, Inc./California Peninsula, alleging that defendant failed to identify overtime pay rates on employees wage statements in violation of the Labor Code. The parties have reached a settlement, which the Court preliminarily approved on June 23, 2017. Plaintiff now moves for final approval of the settlement and approval of her attorney fees, costs, and enhancement awards. Plaintiff s motion is unopposed. I. Legal Standard for Approving a Class Action Settlement 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, internal citations and quotations omitted.) 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to give 1

rubber-stamp approval to a settlement; in all cases, it must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished, based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) II. Terms and Administration of the Settlement The terms of the settlement are as follow. The $45,000 non-reversionary settlement includes a $1,000 payment to the California Labor and Workforce Development Agency associated with plaintiff s PAGA claim. Attorney fees of up to $14,850 (one-third of the gross settlement), litigation costs estimated at $3,000, and administration costs estimated at $2,200 will also be paid from the gross settlement. The named plaintiff will seek an enhancement award of $2,500. The remaining net settlement of approximately $21,450 will be distributed to class members pro rata based on their wage statements reflecting overtime payments that were received during the class period. Class members will not be required to submit a claim to receive their payments. Checks uncashed after 180 days will be deposited with the State of California Department of Industrial Relations, Unclaimed Wages Fund in the class member s name. Class members who do not opt out of the settlement will release any and all claims, etc. contingent or accrued for, or which relate to or arise out of the allegations and claims asserted in the operative complaint in the class action and any and all related claims, including claims for violation of Labor Code section 226 for failure to provide accurate and complete wage statements, and for [derivative] violation of PAGA. The notice process has now been completed. There were no objections to the settlement or requests for exclusion from the class. Of 25 notice packets mailed, one was remailed to an updated address located through skip tracing. All of the notice packets were ultimately delivered. The claims administrator estimates that the average class member payment will be $858, with a minimum payment of $51.07 and a maximum payment of $1,378.93. At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to plaintiffs claims. It finds no reason to deviate from this finding now, especially considering that there are no objections. The Court consequently finds that the settlement is fair and reasonable for purposes of final approval. III. Attorney Fees, Costs, and Incentive Award Plaintiff seeks a fee award of $14,850, or 1/3 of the gross settlement, which is not an uncommon contingency fee allocation. This award is facially reasonable under the common fund doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also reports that 25 hours were expended on the case by attorneys with billing rates of $650 per hour, yielding a lodestar figure of $16,250. Counsel expects to spend an additional 6 hours finalizing the settlement. The fee request is thus slightly below the lodestar figure in this case. As a cross-check, the lodestar supports the 2

1/3 percentage fee requested, particularly given that there are no objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503-504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, crosschecked against a lodestar resulting in a multiplier of 2.03 to 2.13].) Plaintiffs also request $2,329.73 in litigation costs, somewhat below the $3,000 estimate that was provided at preliminary approval. The costs are reasonable based on the summary provided by plaintiffs. The $2,200 in administrative costs is also approved. Finally, the named plaintiff requests a service awards of $2,500. To support her request, she submits a declaration describing her efforts on the case. The Court finds that the class representative is entitled to a representative award, and the amount requested is reasonable. IV. Conclusion and Order Plaintiff s motion for final approval is GRANTED. The following class is certified for settlement purposes: All current and former non-temporary employees who worked for Defendant in the State of California and received overtime wages between May 9, 2015 and March 15, 2017. The Court will prepare the order. - oo0oo - 3

Calendar Line 3 Case Name: Pablo Rodriguez Diaz, et al. v. Heavenly Construction, Inc., et al. Case No.: 16-CV-295143 This is a putative class action by employees of defendant Heavenly Construction, Inc. dba Heavenly Greens. Plaintiffs allege that they were paid on a piece rate not based on actual hours worked and suffered other wage and hour violations while employed by defendant to install turf and/or drive trucks. The parties have reached a settlement, which the Court preliminarily approved on April 24, 2017. Plaintiffs now move for final approval of the settlement and approval of their attorney fees, costs, and enhancement awards. Their motion is unopposed. Plaintiffs request for judicial notice of their memorandum of points and authorities in support of their motion for preliminary approval is GRANTED. (Evid. Code, 452, subd. (d).) I. Legal Standard for Approving a Class Action Settlement 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, internal citations and quotations omitted.) 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, 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) 1

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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to give rubber-stamp approval to a settlement; in all cases, it must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished, based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) II. Terms and Administration of the Settlement The terms of the settlement are as follow. The $750,000 settlement includes a $3,750 payment to the California Labor and Workforce Development Agency associated with the PAGA claims. (Cowan Decl., Ex. A, Joint Stipulation for Class Action Settlement and Release, 42-43.) Attorney fees of $249,750, settlement administration expenses of up to $20,000, and litigation costs of up to $25,000 will also be deducted from the gross settlement amount, pending approval by the Court. (Id. at 36, 40.) The named plaintiffs will petition the Court for incentive awards of $5,000 each. (Id. at 37.) The net settlement fund will be distributed among the class members pro rata based on their weeks worked during the class period, on a claims-made basis. (Stipulation, 46, 63.) Each class member s notice provided the class member s estimated settlement amount and weeks worked as reflected by defendant s records, with directions regarding how class members could dispute this information. (Id. at 71-73.) Funds associated with uncashed settlement checks will revert to the Katharine & George Alexander Community Law Center at the Santa Clara University School of Law. (Id. at 51.) Defendant will fund the settlement with an initial payment of $400,000, due ten calendar days after final approval, and a second payment of $350,000, due no later than February 15, 2018. (Stipulation, 47-48.) Corresponding to the two payments, an initial distribution to class members will be made 20 days after final approval and a second distribution will be made 30 days after the claims administrator receives the second payment from defendant. (Id. at 49.) Attorney fees and costs will also be made in two payments. (Id. at 40-41.) In exchange for the settlement payment, the class will release all claims alleged in this action in addition to claims of any nature and description whatsoever, known or unknown, in law or in equity, asserted by Plaintiffs on behalf of any Settlement Class Member relating to any compensation allegedly due or earned as a result of their employment with Defendant Heavenly, including specified wage and hour claims. (Stipulation, 18.) Class members who do not submit a claim form or opt out of the class will release their claims, although they will receive no settlement payment. (Stipulation, 79.) The Court was persuaded by counsel s argument at preliminary approval that the claims process is intended to ensure that the greatest possible portion of the settlement is distributed to class members rather than through the cy pres process, given that many class members in this action are former rather than current employees and may be difficult to locate. 2

The notice process has now been completed. There were no objections to the settlement and one request for exclusion from the class. Of 154 notice packets mailed, 13 were re-mailed to updated addresses located through skip tracing and 6 were ultimately undeliverable. The administrator received 67 timely claim forms and one late form, which the parties have agreed to accept. The 68 class members who will receive a settlement payment account for 80.53% of the total class work weeks. The claims administrator estimates that the average class member payment will be $6,153.33, with a minimum payment of $108.76 and a maximum payment of $16,028.39. At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to plaintiffs claims. It finds no reason to deviate from this finding now, especially considering that there are no objections. The Court consequently finds that the settlement is fair and reasonable for purposes of final approval. III. Attorney Fees, Costs, and Incentive Awards Plaintiffs seek a fee award of $247,500, or approximately 1/3 of the gross settlement, which is not an uncommon contingency fee allocation. This award is facially reasonable under the common fund doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiffs also report that 561.45 hours were expended on the case by attorneys with billing rates of $450 per hour, yielding a lodestar figure of $252,652.50. The fee request is thus slightly below the lodestar figure in this case. As a cross-check, the lodestar supports the 1/3 percentage fee requested, particularly given that there are no objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503-504 [trial court did not abuse its discretion in approving fee award of 1/3 of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].) Plaintiffs also request $21,408.31 in litigation costs, somewhat below the $25,000 estimate that was provided at preliminary approval. This figure, which includes deposition costs and mediation and paralegal fees, is reasonable based on the summary provided by plaintiffs. Plaintiffs request $20,000 in administrative costs, as estimated at preliminary approval. The Court observed at preliminary approval that this request seems high. Plaintiffs have not provided the Court with an estimate of the administrative costs incurred to date or any detail regarding the $20,000 requested. They are accordingly directed to address this issue in more detail at the hearing on this matter. Finally, the three named plaintiffs request service awards of $5,000 each, for a total of $15,000. To support these requests, they submit declarations describing their efforts on the case and indicating that they took unpaid time off work to attend meetings and depositions. The Court finds that the named plaintiffs are entitled to representative awards, and the amounts requested are reasonable. IV. Conclusion and Order 3

Plaintiffs motion for final approval is tentatively GRANTED, subject to plaintiffs presentation regarding the administrative costs requested as discussed above. The following class will be certified for settlement purposes: All non-exempt hourly employees who are employed or have been employed by Heavenly Construction, Inc. in California as artificial turf installers, laborers, and/or drivers from May 3, 2012 to March 1, 2017. Alejandro Flores is excluded from the class pursuant to his request. The Court will prepare the order. - oo0oo - 4

Calendar Line 4 Case Name: Servando Velasco Perez v. California Drywall Co., et al. Case No.: 16-CV-299728 This is a putative wage and hour class action by employees of defendant California Drywall Co., alleging failure to provide itemized wage statements in compliance with the Labor Code. The parties have reached a settlement, which the Court preliminarily approved on August 3, 2017. Plaintiff now moves for final approval of the settlement and approval of his attorney fees, costs, and enhancement award. His motion is unopposed. I. Legal Standard for Approving a Class Action Settlement 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, internal citations and quotations omitted.) 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to give rubber-stamp approval to a settlement; in all cases, it must independently and objectively 1

analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished, based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) II. Terms and Administration of Settlement The terms of the settlement are as follows. The $85,000 non-reversionary settlement includes a $3,750 payment to the California Labor and Workforce Development Agency associated with plaintiff s PAGA claim (seventy-five percent of the $5,000 allocated to PAGA penalties). Attorney fees of up to $28,333.33 (one-third of the gross settlement), litigation costs estimated at $10,000, and administration costs capped at $5,750 will also be paid from the gross settlement. The named plaintiff will seek an enhancement award of $2,500. The remaining net settlement of approximately $34,666.67 will be distributed to class members pro rata based on the number of manually generated checks received by each class member during the class period. Class members will not be required to submit a claim to receive their payments. Checks uncashed after 180 days will be deposited with the State of California Department of Industrial Relations, Unclaimed Wages Fund in the class member s name. Class members who do not opt out of the settlement will release any and all claims, etc. that are alleged in, or that could have been alleged in, Plaintiffs notice letters to the LWDA (submitted on or about January 17 and July 5, 2016), the Complaint (filed September 9, 2016), [sic.] arising out of the alleged failure to provide itemized wage statements to individuals whom Defendant paid their wages with a manually generated check. The notice process has now been completed. There were no objections to the settlement and no requests for exclusion from the class. Of 670 notice packets mailed, 32 were re-mailed to updated addresses located through skip tracing and 6 were ultimately undeliverable. The claims administrator estimates that the average class member payment will be $62.69, with a minimum payment of $35.85 and a maximum payment of $286.80. At preliminary approval, the Court found that the proposed settlement provides a fair and reasonable compromise to plaintiffs claims. It finds no reason to deviate from this finding now, especially considering that there are no objections. The Court consequently finds that the settlement is fair and reasonable for purposes of final approval. III. Attorney Fees, Costs, and Incentive Award Plaintiff seeks a fee award of $28,333.33, or 1/3 of the gross settlement, which is not an uncommon contingency fee allocation. This award is facially reasonable under the common fund doctrine, which allows a party recovering a fund for the benefit of others to recover attorney fees from the fund itself. Plaintiff also reports that 109.3 hours were expended by attorneys with billing rates of $650 per hour, resulting in a lodestar figure of $71,045. The fee request is thus substantially below the lodestar figure in this case. As a cross-check, the lodestar supports the 1/3 percentage fee requested, particularly given that there are no objections to the attorney fee request. (See Laffitte v. Robert Half Intern. Inc. (Cal. 2016) 1 Cal.5th 480, 488, 503-504 [trial court did not abuse its discretion in approving fee award of 1/3 2

of the common fund, cross-checked against a lodestar resulting in a multiplier of 2.03 to 2.13].) Plaintiff also requests $2,017.19 in litigation costs, well below the $10,000 estimate that was provided at preliminary approval. The costs are reasonable based on the summary provided by plaintiffs. Plaintiff s request for $5,750 in administrative costs is also approved. Finally, the named plaintiff requests a service award of $2,500. To support this request, he submits a declaration describing his efforts on the case and indicating that he spent approximately 20 hours meeting with his attorneys and providing them with documents and information. The Court finds that the class representative is entitled to a service award, and the amount requested is reasonable. IV. Conclusion and Order Plaintiff s motion for final approval is GRANTED. The following class is certified for settlement purposes: All individuals who worked for Defendant in California at any time from September 9, 2015, through the date of the Court s preliminary approval of the class action settlement, and who received their wages through a manually generated check. The Court will prepare the order. - oo0oo - 3

Calendar Line 5 Case Name: Alfonso Diaz v. WeDriveU, Inc., et al. Case No.: 17-CV-306547 This is a putative wage and hour class action by employees of defendant WeDriveU, Inc. Before the Court is plaintiff s unopposed motion for preliminary approval of a class action settlement. I. Factual and Procedural Background Plaintiff alleges that defendant had a policy and practice of failing to reimburse employees for cellular phone expenses incurred during the course of performing work duties; failing to provide proper itemized wage statements; and failing to pay all wages in a timely manner. (First Amended Class Action Complaint ( FAC ), 20-21.) Like other employees, plaintiff was required to use his personal cell phone to communicate with defendant throughout the work day. (Id. at 24.) He was required to check in with dispatchers at the beginning of the day and report the number of passengers he transported throughout the day. (Ibid.) He also received text messages with work-related information such as changes to pick-up locations, information about company meetings, and the like. (Ibid.) However, he was not reimbursed for any work-related charges to his personal cell phone. (Ibid.) Further, plaintiff s wage statements failed to identify the start date of the payroll period and he received his wages more than 7 days after the close of the pay period, both in violation of the Labor Code. (Id. at 24, 47.) Based on these allegations, plaintiff asserts claims on behalf of the putative class for (1) violation of Labor Code section 2802 by failing to reimburse cell phone expenses; (2) violation of Labor Code section 226 by providing inadequate wage statements; (3) violations of Business & Professions Code section 17200, et seq. (the UCL ); and (4) violation of Labor Code section 2698, et seq. ( PAGA ). In addition, plaintiff asserted individual disability claims under the Fair Employment and Housing Act (the fifth through seventh causes of action) and individual claims under the Labor Code for meal and rest period violations and failure to pay straight time (the eighth through tenth causes of action). Plaintiff indicates that these claims have already been resolved/dismissed. The parties have reached a settlement of the class calims. Plaintiff now moves for an order preliminarily approving the settlement, provisionally certifying the settlement class, approving the form and method for providing notice to the class, and scheduling a final fairness hearing. II. Legal Standard for Approving a Class Action Settlement 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.) 1

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, internal citations and quotations omitted.) 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1801, 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 v. Ford Motor Co., supra, 48 Cal.App.4th at p. 1802.) The presumption does not permit the Court to give rubber-stamp approval to a settlement; in all cases, it must independently and objectively analyze the evidence and circumstances before it in order to determine whether the settlement is in the best interests of those whose claims will be extinguished, based on a sufficiently developed factual record. (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 130.) III. Settlement Process According to a declaration by plaintiff s counsel, the parties discussed the possibility of settlement before this action was filed. Defendant provided plaintiff with certain payroll data and the parties engaged in robust discussion but were not able to settle. Plaintiff subsequently filed this action, and the parties again attempted settlement discussions, this time with the assistance of a mediator. In connection with that process, defendant produced substantially more class data that enabled plaintiff to conduct a full damage analysis, and plaintiff estimated that defendant s liability would be approximately $1.2 million. The parties agreed to the $410,000 settlement before the Court as a result of the mediation. Counsel estimates that the settlement will result in an average payment of $585 to each of the approximately 300 class members. 2

IV. Provisions of the Settlement The non-reversionary settlement includes a $60,000 payment to the California Labor and Workforce Development Agency associated with plaintiff s PAGA claim (seventy-five percent of the $80,000 allocated to PAGA penalties). Attorney fees of up to $136,666 (onethird of the gross settlement), litigation costs estimated at $20,000, and administration costs of approximately $7,750 will also be paid from the gross settlement. The named plaintiff will seek an enhancement award of $10,000. The remaining net settlement of approximately $175,583 will be distributed to class members pro rata based on the number of pay periods worked by each class member during the class period. Class members will not be required to submit a claim to receive their payments. Checks uncashed after 6 months will be deposited with the State of California Department of Industrial Relations, Unclaimed Wages Fund in the class member s name. Class members who do not opt out of the settlement will release any and all claims, etc. arising from, or related to Defendant s alleged violations of California Labor Code sections 204, 226 and 2802 that accrued during the Released Claims Period, along with PAGA and UCL claims predicated on the same. V. Fairness of the Settlement Counsel believe that the settlement provides a fair and reasonable recovery to the class, citing the general risks and costs of litigation as well as substantial risks related to certifying the class in this case. Given these considerations and the presumption of fairness to which the settlement is entitled, the Court is inclined to agree. However, it requires further information on a few issues. First, plaintiff s evaluation of his claims is lacking in detail. While he references a level of risk related to certifying the class and estimates the total value of the case at $1.2 million, he provides no separate valuations or discussions of his three different theories of recovery. He also does not address whether it is equitable to distribute the settlement among class members pro rata, without regard for the potential subclasses suggested by these different theories. Further, plaintiff does not indicate whether his $1.2 million estimate represents a likely recovery, a maximum recovery, or something else. Plaintiff s counsel must address these issues in a supplemental declaration. The declaration shall also address the reasoning supporting the allocation of $80,000 to PAGA penalties. The Court also requires further information about the resolution of plaintiff s individual claims, which do not appear to have been dismissed as indicated by plaintiff s brief. While the Court is not called upon to approve any settlement of these claims, it does view their outcome as relevant to its evaluation of the proposed class settlement. Counsel s supplemental declaration shall accordingly address the outcome of plaintiff s individual claims and explain whether there was any relationship between the resolution of those claims and the proposed class settlement. Finally, the incentive award requested by plaintiff is somewhat higher than usual in similar settlements. Prior to final approval, plaintiff shall provide a declaration detailing his 3

participation in the case supporting the stipulated incentive payment. The Court also has an independent right and responsibility to review the requested attorney fees and award only so much as it determines to be reasonable. (See Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 127-128.) While 1/3 of the common fund for attorney fees is generally considered reasonable, counsel should submit lodestar information prior to the final approval hearing in this matter so the Court can compare the lodestar information with the requested fees. (See Laffitte v. Robert Half Intern. Inc. (2016) 1 Cal.5th 480, 504 [trial courts have discretion to double-check the reasonableness of a percentage fee through a lodestar calculation].) VI. Proposed Settlement Class Plaintiff requests that the following settlement class be provisionally certified: All current and former employees who were employed by Defendant as drivers in the State of California at any time from February 10, 2013, through October 27, 2016 and who received a wage statement during that time period. A. Legal Standard for Certifying a Class for Settlement Purposes Rule 3.769(d) of the California Rules of Court states that [t]he court may make an order approving or denying certification of a provisional settlement class after [a] preliminary settlement hearing. California Code of Civil Procedure Section 382 authorizes certification of a class when the question is one of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court. As interpreted by the California Supreme Court, Section 382 requires the plaintiff to demonstrate by a preponderance of the evidence (1) an ascertainable class and (2) a well-defined community of interest among the class members. (Sav-On Drug Stores, Inc. v. Superior Court (Rocher) (2004) 34 Cal.4th 319, 326, 332.) The community-of-interest requirement encompasses three factors: (1) predominant questions of law or fact, (2) class representatives with claims or defenses typical of the class, and (3) class representatives who can adequately represent the class. (Ibid.) Other relevant considerations include the probability that each class member will come forward ultimately to prove his or her separate claim to a portion of the total recovery and whether the class approach would actually serve to deter and redress alleged wrongdoing. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435.) The plaintiff has the burden of establishing that class treatment will yield substantial benefits to both the litigants and to the court. (Blue Chip Stamps v. Superior Court (Botney) (1976) 18 Cal.3d 381, 385.) In the settlement context, the court s evaluation of the certification issues is somewhat different from its consideration of certification issues when the class action has not yet settled. (Luckey v. Superior Court (Cotton On USA, Inc.) (2014) 228 Cal.App.4th 81, 93.) As no trial is anticipated in the settlement-only context, the case management issues inherent in the ascertainable class determination need not be confronted, and the court s review is more lenient in this respect. (Id. at pp. 93-94.) However, considerations designed to protect absentees by blocking unwarranted or overbroad class definitions require heightened scrutiny in the settlement-only class context, since the court will lack the usual opportunity to adjust the class as proceedings unfold. (Id. at p. 94.) 4

B. Ascertainable Class The trial court must determine whether the class is ascertainable by examining (1) the class definition, (2) the size of the class and (3) the means of identifying class members. (Miller v. Woods (1983) 148 Cal.App.3d 862, 873.) Class members are ascertainable where they may be readily identified without unreasonable expense or time by reference to official records. (Rose v. City of Hayward (1981) 126 Cal.App.3d 926, 932.) Here, the estimated 300 class members are easily identified based on defendant s records, and the class definition is clear. The Court consequently finds that the class is numerous and ascertainable. C. Community of Interest With respect to the first community of interest factor, [i]n order to determine whether common questions of fact predominate the trial court must examine the issues framed by the pleadings and the law applicable to the causes of action alleged. (Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal.App.4th 908, 916.) The court must also give due weight to any evidence of a conflict of interest among the proposed class members. (See J.P. Morgan & Co., Inc. v. Superior Court (Heliotrope General, Inc.) (2003) 113 Cal.App.4th 195, 215.) The ultimate question is whether the issues which may be jointly tried, when compared with those requiring separate adjudication, are so numerous or substantial that the maintenance of a class action would be advantageous to the judicial process and to the litigants. (Lockheed Martin Corp. v. Superior Court, supra, 29 Cal.4th at pp. 1104-1105.) As a general rule if the defendant s liability can be determined by facts common to all members of the class, a class will be certified even if the members must individually prove their damages. (Hicks v. Kaufman & Broad Home Corp., supra, 89 Cal.App.4th at p. 916.) Here, common legal and factual issues predominate. Plaintiff s claims all arise from defendant s wage and hour practices applied to the similarly-situated class members. As to the second factor, The typicality requirement is meant to ensure that the class representative is able to adequately represent the class and focus on common issues. It is only when a defense unique to the class representative will be a major focus of the litigation, or when the class representative s interests are antagonistic to or in conflict with the objectives of those she purports to represent that denial of class certification is appropriate. But even then, the court should determine if it would be feasible to divide the class into subclasses to eliminate the conflict and allow the class action to be maintained. (Medrazo v. Honda of North Hollywood (2008) 166 Cal. App. 4th 89, 99, internal citations, brackets, and quotation marks omitted.) Like other members of the class, plaintiff was employed by defendant and was subject to its wage and hour policies at issue. The anticipated defenses are not unique to plaintiff, and there is no indication that plaintiff s interests are otherwise in conflict with those of the class. 5