Judge: Randall J. Sherman, Case: 2018-00992682, Date: 2022-11-04 Tentative Ruling

Plaintiffs’ Motion for Final Approval of Class Settlement and Motion for Award of Attorneys’ Fees, Costs and Service Awards are granted, except that the court awards enhancements to plaintiffs only in the amount of $5,000 each.  Enhancement awards of $5,000 each are sufficient and proper for a class and settlement of this size, whose average payment per class member is only about $130 per person.

The court rules that the purported opt-out by Connie La was effective, and that the purported opt-out by Sarah A. Villar was untimely and thus not effective.  The Settlement Agreement provided in Section III(E)(3)(c), “Class Members who wish to exclude themselves from the Settlement must mail to the Settlement Administrator postmarked not later than forty-five (45) calendar days after the Settlement Administrator mails the Class Notice Packets, a signed Election Not to Participate in Settlement.”  The envelopes attached to the Supplemental Butler Declaration include a postmark showing that La’s opt-out was mailed from San Jose on July 29, 2022 to the correct address, but for some reason also includes a postmark showing a mailing from San Diego in September 2022.  The Post Office perhaps made a mistake of some sort.  But since the Settlement Agreement defines timeliness by the date of the postmark, not the date of receipt, and La’s envelope has a postmark dated only nine days after the July 20, 2022 mailing, her opt-out was timely and thus effective.  Villar’s postmark, however, was dated September 14, 2022, 56 days after the mailing, which was 11 days after the 45-day deadline, rendering her opt-out untimely and ineffective.

The court concludes that the $1,500,000 class action and PAGA settlement, as approved, is fair, adequate and reasonable, and approves the following specific awards:

• $500,000.00 to plaintiffs’ counsel for plaintiffs’ attorneys’ fees, divided 76% to Blumenthal Nordrehaug Bhowmik De Blouw LLP, 19% to Bradley/Grombacher LLP, and 5% to The Bainer Law Firm, as requested;

• $22,486.87 to plaintiffs’ counsel for plaintiffs’ attorney costs, with $18,282.28 to Blumenthal Nordrehaug Bhowmik De Blouw LLP, $2,008.15 to Bradley/Grombacher LLP, and $2,196.44 to The Bainer Law Firm, as requested;

• $5,000.00 each to plaintiffs Gabriela Palomino, Andrew Sedaghatpour and Derek Atienza as enhancement awards, reduced from the $10,000.00 each requested;

• $32,999.00 to the Administrator, Simpluris, Inc., as requested; and

• $15,000.00 to the LWDA for its share of PAGA penalties, as requested.

The total amount that will be payable to all class members and aggrieved employees if they are paid the amount to which they are entitled pursuant to the judgment is $914,514.13.

The court sets a Final Report Hearing for March 8, 2024 at 10:00 a.m., to confirm that distribution efforts are fully completed, including the distribution of the amount of the uncashed class member checks to the State Controller’s Office Unclaimed Property Fund in the names of the applicable payees after 180 days, that the Administrator’s work is complete, and that the court’s file thus may be closed.  The parties must report to the court the total amount that was actually paid to the class members.  All supporting papers must be filed at least 16 days before the Final Report Hearing date.

Plaintiffs must submit an amended Proposed Final Approval Order and Judgment consistent with this ruling, and which identifies the 11 putative class members who effectively opted out and thus will not be bound by the judgment.

Plaintiffs are ordered to give notice of the ruling to the LWDA and to defendant.