CYNTHIA GILBERT vs OPTION CARE ENTERPRISES INC

3. Conformity with Rules of Court. The Rules of Court govern the length and format of law and motion papers, to include that no opening or responding memorandum may exceed 15 or at most, 20 pages, absent leave of court (See Cal. R. Ct., rule 3.1113(d) and rule 3.764(c)(2).); the font must be at least 12 points (Cal. R. Ct., rule 2.104); conforming exhibits that are appropriately indexed, tabbed or bookmarked, and paginated (Cal. R. Ct., rules 2.256(b) and 3.1110(f).) Counsel’s compliance with these rules greatly aids in the review of papers filed with the Court, and also avoids delay in the Court’s issuance of a decision on the merits.

Noncompliance with these rules may cause delay in approval, or the Court to disregard noncompliant materials. (See Code Civ. Proc. §§ 187 & 128; see also Bozzi v. Nordstrom (2010) 186 Cal.App.4th 755, 765 [trial court has broad discretion to refuse to consider papers that do not comply with rule 3.1300(d)].) Here, Plaintiff’s moving papers exceeded the page limit, but were otherwise properly indexed, bookmarked, and paginated.

4. Class Notice, Opt Outs, Objections, and Estimated Payments. The class is defined as: “All persons who worked for any Defendant in California as an hourly, non-exempt employee in the position of nurse, pharmacist, or pharmacy technician, at any time during the period of September 6, 2020 through December 27, 2025, pursuant to Paragraphs 9 and 55 of the Settlement Agreement.” The Court finds that class notice was disseminated in compliance with the Preliminary Approval Order, California Rules of Court, rule 3.766, and in a manner that satisfies due process.

At preliminary approval, the estimated number of class members was 718, and the final number of class members is 662. Collectively, the class members worked 70,995 workweeks. The settlement allocation formula provided for LA South and LA North nurses at Option Care to receive 100% credit for workweeks, while nurses in other California regions received 75% credit, pharmacists received 40% credit and pharmacy technicians received 20% credit. These allocations track damages analysis. No class members objected and none requested exclusion though one class member disputed the number of work weeks.

The average individual class member payout is estimated to be $3,591.01 based on the preliminary net recovery, with the range of payments from $11.85 to $16,418.02, and an average net value per workweek to be $59.27, presumably based on weighted workweeks. The average PAGA payment is estimated to be $141.78, with a range of $1.38 to $259.99.

1 Effective for PAGA Notices filed before June 19, 2024, penalties recovered are allocated 75%

(LWDA) / 25% (Aggrieved Employees). For PAGA Notices filed on or after June 19, 2024, penalties recovered are allocated 65% (LWDA) / 35% (Aggrieved Employees). (Labor Code § 2699(m).) The PAGA notice is dated July 31, 2023, so the Court applies the 75 / 25 split.

2023CUOE012240: CYNTHIA GILBERT vs OPTION CARE ENTERPRISES INC

5. Attorney Fee Award. The Court preliminarily approved a percentage fee recovery up to 1/3 of the common fund. (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 503.) At preliminary approval, the Court explained that it uses a benchmark of 25% of the gross settlement amount, and now considers the information submitted by class counsel as well as a lodestar cross check to determine whether the final award justifies a departure from the Court’s benchmark. Lodestar Cross-Check. Class counsel request fees of $1,196,250, representing 33% of the Gross Settlement Amount.

In a common-fund case, the Court may award a reasonable fee calculated as a percentage of the fund and may in its discretion employ a lodestar cross-check to confirm that the percentage yields a reasonable fee. (Laffitte v. Robert Half Internat., Inc. (2016) 1 Cal.5th 480, 503, 506.) The lodestar is the number of hours reasonably expended multiplied by a reasonable hourly rate. (Serrano v. Priest (1977) 20 Cal.3d 25, 48; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Class counsel have submitted declarations reporting 475.9 hours reasonably expended, at hourly rates ranging from $700 to $850, for a lodestar of $360,940.

Additionally, Plaintiff’s counsel, Mr. Hefelfinger, reports that he anticipates spending an additional 50 to 100 hours through final approval of this matter. Assuming an additional 75 hours of his time at $700 per hour, the lodestar will amount to $413,440. Having reviewed the billing records submitted, the Court finds the hours were reasonably expended. The rates requested are at the high end of attorney rates within Ventura County, but are not unreasonable for attorneys of comparable skill and experience in the local legal market.

On a cross-check, the lodestar figure need not be scrutinized with the same precision required when the lodestar is the primary basis for the award. (Laffitte, at p. 505.) Multiplier. The requested fee with anticipated work through final approval reflects a multiplier of 2.9. The Court finds this multiplier is reasonable in light of the contingent nature of the fee, the risk of nonpayment undertaken at the outset of the representation, the novelty and difficulty of the questions presented, the skill displayed in litigating the matter, the extent to which the engagement precluded other employment, and most notably in this case, the results achieved for the class. (Ketchum v.

Moses (2001) 24 Cal.4th 1122, 1132.)

Based on the foregoing analysis, the Court approves an attorney fee award in the amount of $1,196,250.

6. Service Award. Plaintiff, Cynthia Gilbert, seeks an incentive award of $25,000. At preliminary approval, the Court approved a service award of $12,500 without prejudice to Plaintiff’s ability to request an amount up to $25,000, supported by her declaration or other information. The Court has reviewed Ms. Gilbert’s declaration and finds within its discretion that an award of $25,000 is reasonable and reflects the class representative’s actual effort, risk, and contributions to the litigation, and is not disproportionate to plaintiff’s expended effort. (Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1393–1395.)

7. Attorney Costs. Costs were previously approved in an amount not to exceed $18,000. Plaintiff’s counsel now submits a request for approval of verified costs in the amount of $15,760.78. The court has reviewed the information submitted in support of the requests for costs and allows the amount requested of $15,761.

2023CUOE012240: CYNTHIA GILBERT vs OPTION CARE ENTERPRISES INC

8. Settlement Administration. The Court previously appointed CPT Group, Inc. as the settlement administrator in this case. The Court has now reviewed the declaration of the administrator that verifies the timely sending of class notice, efforts to find class members with invalid addresses, the number of objections from class members, the number of opt outs from class members.

The Court previously approved costs for the settlement administrator in an amount not to exceed $11,000. Of these requested costs, and according to the Declaration of Veronica Olivares, $3,750 costs have been incurred by the administrator with an estimated costs in the amount of $7,250 to be incurred for issuing settlement checks, processing tax withholding and reporting, mailing payments, responding to post-distribution inquiries, handling stale or reissued checks, and preparing any final reports required by the Court or the parties. The Court finds that the final expenses requested are reasonable, and approves the requested expenses up to $11,000.

9. Cy Pres. The Court requires the parties select a cy pres charity recipient in accordance with Code of Civil Procedure section 384 or provide an explanation why the State Controller's Unclaimed Property Fund is the more appropriate recipient for any unclaimed settlement funds in this case. The Court accepts the parties’ designation of the State Controller’s Office Unclaimed Property Division in this case given the excellent rate of class participation, and that notice to only four class members remains undeliverable would not provide a meaningful benefit to a designated cy pres charity under Code of Civil Procedure section 384.

10. Fairness of Settlement. The Court previously found that Plaintiff met their burden to show that the settlement was obtained after an arm’s-length negotiation, and is fair, adequate and reasonable. (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801 [adequacy and reasonableness factors include consideration of case strengths, risks, and posture; settlement amount; experience of counsel].) The Court now confirms its prior findings in connection with its review of the Motion for Final Approval.

Based on the final record, to include the notice results, the number of objections and requests for exclusion, and the reaction of the class - the Court independently finds the settlement fair, adequate, and reasonable and in the best interests of the class. (Cal. Rules of Court, rule 3.769(g).) The Court further finds the PAGA settlement fair, reasonable, and adequate in view of PAGA's purposes, and that the allocation of settlement among class claims and PAGA penalties is fair and reasonable. (Moniz v.

Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77.) The settlement was submitted to the LWDA; the release reflects that aggrieved employees may not opt out of the PAGA settlement. (Amaro v. Anaheim Arena Management, LLC (2021) 69 Cal.App.5th 521, 541, fn. 5.)

11. Disposition. Subject to any modifications above, the Court GRANTS the motion and will sign the proposed order consistent with this order. The Court retains jurisdiction over the parties to enforce the terms of the settlement (Code Civ. Proc., § 664.6) and the judgment. Any Proposed Judgment shall not include a dismissal or findings not contained in this order. (Cal. Rules of Court, rule 3.769(h).) The parties are ordered to otherwise effectuate the terms of the settlement in a manner not inconsistent with this order.

2023CUOE012240: CYNTHIA GILBERT vs OPTION CARE ENTERPRISES INC

The Court hereby sets the hearing for final settlement compliance on Wednesday, January 6, 2027, at 1:30 p.m. Plaintiff shall file a declaration concerning settlement compliance at least 10 days in advance of the compliance hearing date. Plaintiff's counsel shall give notice.

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