This case was last updated from Los Angeles County Superior Courts on 07/14/2020 at 07:47:41 (UTC).

KYRA GROVES ET AL VS MAPLEBEAR INC

Case Summary

On 02/28/2018 KYRA GROVES filed a Labor - Other Labor lawsuit against MAPLEBEAR INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOLLY J. FUJIE and KENNETH R. FREEMAN. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5401

  • Filing Date:

    02/28/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Labor - Other Labor

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

HOLLY J. FUJIE

KENNETH R. FREEMAN

 

Party Details

Plaintiffs and Petitioners

PIERCE TIMOTHY

GROVES KYRA

HAMMONS CATHERINE

BURKS DONNA

BLACKHAM SETH

CORTEZ JAVIER

Defendants and Respondents

INSTACART

MAPLEBEAR INC

MAPLEBEAR INC. DBA INSTACART

Not Classified By Court

SARAH LOZANO

TAYLOR PAUL

Interested Party

SPIO JUSTIN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LICHTEN & LISS-RIORDAN P.C.

LISS-RIORDAN SHANNON ERIKA

LISS-RIORDAN SHANNON

KRAMER ANNA

Defendant Attorneys

MENY RACHAEL ELIZABETH

KEKER & VAN NEST

MENY RACHAEL E.

ALLEN JULIA L.

 

Court Documents

COMPLAINT FOR CIVIL PENALTIES UNDER THE PRIVATE ATTORNEY GENERAL ACF OF 2004 ("PAGA") 1. PRIVATH ATTORNEY GENERAL AC (PAGA) CLAIM FOR CIVIL PENALTIES (CAL. LAB. CODE 2698 ET SEQ.)

2/28/2018: COMPLAINT FOR CIVIL PENALTIES UNDER THE PRIVATE ATTORNEY GENERAL ACF OF 2004 ("PAGA") 1. PRIVATH ATTORNEY GENERAL AC (PAGA) CLAIM FOR CIVIL PENALTIES (CAL. LAB. CODE 2698 ET SEQ.)

Application - Application PLAINTIFFS UNOPPOSED APPLICATION FOR COMPLEX DESIGNATION

2/13/2019: Application - Application PLAINTIFFS UNOPPOSED APPLICATION FOR COMPLEX DESIGNATION

Memorandum of Points & Authorities

6/27/2019: Memorandum of Points & Authorities

Objection - OBJECTION PLAINTIFF-OBJECTOR SETH BLACKHAMS OBJECTION TO CLASS ACTION SETTLEMENT

11/14/2019: Objection - OBJECTION PLAINTIFF-OBJECTOR SETH BLACKHAMS OBJECTION TO CLASS ACTION SETTLEMENT

Proof of Service (not Summons and Complaint)

12/17/2019: Proof of Service (not Summons and Complaint)

Motion re: - MOTION RE: FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

12/17/2019: Motion re: - MOTION RE: FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Declaration - DECLARATION OF PAUL TAYLOR IN SUPPORT OF MOTION FOR ATTORNEY FEES

12/17/2019: Declaration - DECLARATION OF PAUL TAYLOR IN SUPPORT OF MOTION FOR ATTORNEY FEES

Notice Re: Continuance of Hearing and Order

3/19/2020: Notice Re: Continuance of Hearing and Order

Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/14/2020

4/14/2020: Certificate of Mailing for - CERTIFICATE OF MAILING FOR (COURT ORDER) OF 04/14/2020

Proof of Service (not Summons and Complaint)

2/5/2019: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

2/13/2019: Proof of Service (not Summons and Complaint)

Complex Civil Case Questionnaire

3/14/2019: Complex Civil Case Questionnaire

Motion re: - MOTION RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

3/22/2019: Motion re: - MOTION RE: MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

Proof of Service (not Summons and Complaint)

3/27/2019: Proof of Service (not Summons and Complaint)

Proof of Service (not Summons and Complaint)

5/7/2019: Proof of Service (not Summons and Complaint)

Notice - NOTICE OF DEFENDANT MAPLEBEAR INC. DBA INSTACART'S OPPOSITION TO PLAINTIFF LOZANO'S APPLCIATION FOR STAY; REQUEST FOR HEARING

5/13/2019: Notice - NOTICE OF DEFENDANT MAPLEBEAR INC. DBA INSTACART'S OPPOSITION TO PLAINTIFF LOZANO'S APPLCIATION FOR STAY; REQUEST FOR HEARING

Proof of Service (not Summons and Complaint)

6/13/2019: Proof of Service (not Summons and Complaint)

203 More Documents Available

 

Docket Entries

  • 08/19/2020
  • Hearing08/19/2020 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other for Final Approval of Class Action Settlement Hearing

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  • 07/28/2020
  • Hearing07/28/2020 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion to Quash MOTION TO QUASH DEPOSITION NOTICE

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  • 07/28/2020
  • Hearing07/28/2020 at 08:30 AM in Department 56 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Protective Order

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  • 07/08/2020
  • Docketat 09:30 AM in Department 56; Informal Discovery Conference (IDC) - Held

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  • 07/08/2020
  • DocketMinute Order ( (Informal Discovery Conference (IDC))); Filed by Clerk

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  • 07/07/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Kyra Groves (Plaintiff); Catherine Hammons (Plaintiff); Timothy Pierce (Plaintiff) et al.

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  • 07/07/2020
  • DocketNotice of Appearance; Filed by Kyra Groves (Plaintiff); Catherine Hammons (Plaintiff); Timothy Pierce (Plaintiff) et al.

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  • 07/07/2020
  • DocketProof of Service (not Summons and Complaint); Filed by Kyra Groves (Plaintiff); Catherine Hammons (Plaintiff); Timothy Pierce (Plaintiff) et al.

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  • 07/07/2020
  • DocketNotice of Intent to Appear by Telephone; Filed by Kyra Groves (Plaintiff); Catherine Hammons (Plaintiff); Timothy Pierce (Plaintiff) et al.

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  • 06/29/2020
  • DocketMotion for Leave (to Opt-Out); Filed by Justin Spio (Real Party in Interest)

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243 More Docket Entries
  • 06/06/2018
  • DocketNotice and Acknowledgment of Receipt; Filed by Kyra Groves (Plaintiff); Catherine Hammons (Plaintiff); Timothy Pierce (Plaintiff)

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  • 05/01/2018
  • Docketat 08:30 AM in Department 56; Order to Show Cause Re: Failure to File Proof of Service - Held - Continued

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  • 05/01/2018
  • DocketMinute Order

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  • 05/01/2018
  • DocketMinute order entered: 2018-05-01 00:00:00; Filed by Clerk

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  • 03/07/2018
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 03/07/2018
  • DocketORDER TO SHOW CAUSE HEARING

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  • 03/07/2018
  • DocketOSC-Failure to File Proof of Serv; Filed by Clerk

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  • 03/07/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 02/28/2018
  • DocketCOMPLAINT FOR CIVIL PENALTIES UNDER THE PRIVATE ATTORNEY GENERAL ACF OF 2004 ("PAGA") 1. PRIVATH ATTORNEY GENERAL AC (PAGA) CLAIM FOR CIVIL PENALTIES (CAL. LAB. CODE 2698 ET SEQ.)

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  • 02/28/2018
  • DocketComplaint; Filed by Kyra Groves (Plaintiff); Catherine Hammons (Plaintiff); Timothy Pierce (Plaintiff)

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Tentative Rulings

Case Number: BC695401    Hearing Date: September 02, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

KYRA GROVES, etc., et al.,

Plaintiffs,

vs.

MAPLEBEAR, INC. d/b/a INSTACART,

Defendant.

CASE NO.: BC695401

[TENTATIVE] ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEYS’ FEES

Date: September 2, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTIES: Plaintiffs Kyra Groves (“Groves”), Catherine Hammons (“Hammons”), Timothy Pierce (“Pierce”), Javier Cortez (“Cortez”), and Donna Burks (“Burks”)

RESPONDING PARTIES: Plaintiff-Objector Seth Blackham (“Blackham”) [1]

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On February 28, 2018, Plaintiffs filed a complaint for civil penalties under the Private Attorney General Act of 2004 (“PAGA”) arising from Plaintiffs’ employment with Maplebear, Inc. dba Instacart (“Instacart”) in Kyra Groves et al. v. Maplebear, Inc. d/b/a Instacart, case number BC695401 (the “Groves Action”).

On November 8, 2018, Paul Taylor (“Taylor”) filed a PAGA complaint in the case of Paul Taylor v. Maplebear, Inc., case number 18STCV04367 (the “Taylor Action”) for: (1) willful misclassification; (2) failure to pay overtime wages; (3) failure to timely pay wages; (4) failure to pay wages on termination; (5) failure to provide meal breaks; (6) failure to provide an accurate itemized paystub; and (7) failure to provide equipment or reimburse business expenses.

On December 17, 2018, the Court issued a minute order relating the Groves Action and the Taylor Action. The Court’s minute order indicated that the Groves Action was the lead case.

On January 29, 2019, Plaintiffs filed the operative first amended class action and collective action complaint for damages and representative action for civil penalties under the PAGA (the “FAC”) in the Groves Action, arising from the alleged wrongful misclassification of Plaintiffs and other individuals who performed grocery shopping and delivery services in California as independent contractors for Defendant. Plaintiffs’ FAC alleges counts for: (1) failure to pay minimum wage and overtime in violation of the Fair Labor Standards Act (“FLSA”); (2) expense reimbursement; (3) willful misclassification; (4) minimum wage; (5) overtime; (6) pay statements; (7) failure to pay wages on termination; (8) failure to timely pay wages; (9) unfair business practices; (10) failure to pay wages for meal and rest breaks; (11) conversion; and (12) penalties pursuant to PAGA.

On August 28, 2019, in the Groves Action, the Court granted Plaintiffs’ motion for preliminary approval of class action settlement.[2]

The terms of the Class Action Settlement Agreement (the “Settlement Agreement”) were set forth in the declaration of Plaintiffs’ counsel, Shannon Liss-Riordan (“Liss-Riordan”), which was attached to Plaintiffs’ motion for preliminary approval of class action settlement.

Terms of the Settlement Agreement

The Court finds it necessary to set forth the terms of the Settlement Agreement advanced in conjunction with Plaintiffs’ motion for preliminary approval of class action settlement filed in the Groves Action. Plaintiffs and Instacart entered into the Settlement Agreement. The class period is from September 1, 2017 until the earlier of the preliminary approval date or May 9, 2019. (Liss-Riordan Decl., Exhibit A at I. (9).) The Settlement Agreement provides that Defendant will pay a non-reversionary $10,965,000.00 (the “Gross Common Fund”) to fully resolve the claims in this action. (Liss-Riordan Decl., Exhibit A at III. 2. (a).) Certain expenses will be paid out of the Gross Common Fund including: (1) claims administration; (2) attorneys’ fees and costs; (3) incentive payments in varying amounts for each named Plaintiff; and a PAGA payment to the California Labor & Welfare Development Agency (“LWDA”), to which the Settlement Agreement allocates $150,000.00 to Plaintiffs’ PAGA claims. (Id. at III. 2. (b).) Non-monetary relief will also be provided in that Defendant has agreed to make various changes to its business practices in California pursuant to the Settlement Agreement. (Id. at III. 3. (b).) Attorneys’ fees shall not exceed more than one-third of the Gross Common Fund, which amounts to $3,655,000. (Id. at III. 14. (c).) Litigation costs are not to exceed $30,000.00 for class counsel. (Id. at I. 26.) Payments for class representatives are not to exceed a certain amount for each of the named Plaintiffs. (Id. at III. 14. (e).) The Claims Administrator shall receive up to $180,000.00. (Id. at III. 14. (f).) The Settlement Agreement resolves the instant action as well as the separate Cortez v. Maplebear, Inc. dba Instacart, CGC-18-566596 lawsuit (the “Cortez Action”) that was stayed pending approval of this settlement. (Id. at II. (2)- II. (5) and II. (7)- II. (16.)

Additional Procedural History

On October 22, 2019, in the Groves Action, Blackham filed a notice of substitution of counsel indicating that: (1) he has exercised his right to recuse (substitute out) his prior counsel of Lichten & Liss-Riordan P.C.; and (2) he was substituting in The Tidrick Law Firm LLP as his counsel. The notice of substitution of counsel also indicated that he objects to the proposed class action settlement and would submit his objections thereto to the administrator pursuant to the procedures set forth in the proposed class action settlement, and he would also file them with the Court.

On November 14, 2019, in the Groves Action, Blackham filed an objection (the “Initial Objection”) to the class action settlement. Blackham asserts that the class action settlement should not be approved, in part, because: (1) the wrong settlement agreement was provided to settlement class members; (2) the Court was improperly kept in the dark regarding approximately two thousand individual cases against Instacart; (3) Instacart failed to disclose its now apparent hidden agenda behind the timing of the “non-monetary components” of the settlement; (4) the Settlement Agreement violates Instacart’s agreement with its Shoppers; (5) the settlement class should be limited to the 82 individuals who opted out of Instacart’s arbitration agreement; (6) the settlement notice is confusing and does not provide sufficient information for a layperson to make an informed decision; (7) the approximately two thousand clients of the Tidrick Law Firm LLP should not be subject to the settlement agreement if they do not make claims; (8) the change of release of FLSA claims is unlawful and was not adequately disclosed to the Court; (9) the parties’ analysis of the value of the claims is defective; (10) the scope of the release is overly and impermissibly broad; (11) the settlement amount is inadequate; (12) the subclass fund of $175,000.00 is unfair and unwarranted; (13) the Court should have the opportunity to review documents relevant to the adequacy and fairness of the settlement; (14) the failure to file any motion for attorneys’ fees and service awards before the deadline for objections is unreasonable; (15) the attorneys’ fees requested are too high; (16) counsel for former objectors should not be awarded attorneys’ fees; (17) the service awards are unfair; (18) the settlement’s opt-out and objection period is unreasonably short; (19) the opt-out and objection procedures are unduly burdensome; and (20) the notice of intent to appear at final approval hearing was improper.

On December 4, 2019, Blackham filed a supplemental objection (the “Supplemental Objection”) to the class action settlement. In his Supplemental Objection, Blackham asserts that: (1) Instacart kept the Court and class members in the dark regarding side deals that Instacart has offered and/or entered into with class members; and (2) another Court recently rejected preliminary approval of a similar settlement brokered by the same counsel as Plaintiffs’ counsel here.

On February 14, 2020, Blackham filed a second supplemental objection (the “Second Supplemental Objection”) to the class action settlement. Blackham asserts that: (1) Taylor’s counsel and Groves’ counsel have improperly pressured Blackham to withdraw his objection to the class action settlement; (2) there is evidence of 67 side deals; (3) the Court should treat as valid the requests for exclusion that were postmarked after November 4, 2019; (4) and the Court should treat the requests for exclusion that were signed by undersigned counsel as valid.

The Instant Motions

On December 17, 2019, in the Groves Action, Plaintiffs—on behalf of themselves and all other similarly situated class members—filed a motion for an order for final approval of the Settlement Agreement and ordering that notice be issued to the settlement class. Plaintiffs contend that: (1) there is a presumption of fairness at the final approval stage; and (2) the Kullar[3] factors have been met.

On December 17, 2019, Plaintiffs in the Groves Action also filed a motion for attorneys’ fees, costs, and class representative service enhancements.

The Court will address both motions in this one ruling. The Court will address the motion for final approval first and then will proceed to analyzing the motion for attorneys’ fees.

Declaration of Plaintiffs’ Counsel

In support of the motion for final approval of class action settlement, Plaintiffs present the declaration of Liss-Riordan, who declares that: (1) she is the lead attorney and class counsel for the settlement class in the Groves Action (Liss-Riordan Decl. at ¶ 1); (2) in the Groves Action, Plaintiffs have alleged that Instacart is a same-day grocery delivery service that engages drivers and full-service shoppers (“Shoppers”) in California to select and purchase requested groceries from major grocery retailers and then deliver them to the homes and businesses of its customers (Id. at ¶ 2); (3) Plaintiffs allege that these Shoppers have been misclassified as independent contractors rather than employees and that Instacart has violated California state law by failing to reimburse these individuals for their necessary business expenses and failing to pay minimum wage and overtime (Id.); (4) Instacart has steadfastly denied Plaintiffs’ allegations regarding misclassification and denies that it has violated federal and California state law (Id.); (5) she began this case by filing PAGA letters with Instacart and the LWDA on behalf of Groves, Hammons, and Pierce in December 2017, seeking to pursue claims for the timeframe post-dating the release period in the nationwide settlement of misclassification-related claims in another case, Camp v. Maplebear Inc. dba Instacart, Case No. BC652216, which ended on August 31, 2019 (Id. at ¶ 3); (6) she filed the Groves Action on February 28, 2018 and on January 25, 2019, she filed amended PAGA letters on behalf of Plaintiffs regarding additional allegations alleged in the amended complaint (Id.); and (7) she also filed a new class case to cover the period after the Camp release, the Cortez Action, the claims of which have now been added into the Groves Action for settlement purposes. (Id. at ¶ 4.)

Liss-Riordan further relevantly declares that: (1) in the summer of 2018, counsel agreed to mediation to attempt to seek a global resolution of the matters they were litigating with respect to Instacart (Id. at ¶ 5); (2) the initial mediation was unsuccessful, however, the parties mediated again in two further full-day sessions in August 2018 and September 2018 (Id.); (3) eventually, after exchanging extensive data and conducting exhaustive and in-depth discussions, they agreed to a global settlement of all pending litigation related to the misclassification claims of Shoppers in California for the period post-dating the Camp settlement release (September 1, 2017 through May 9, 2019) (Id.); (4) Plaintiffs filed their motion for preliminary approval in late March 2019 and they also separately informed the LWDA of the settlement on April 23, 2019, providing a copy of the long-form agreement and motion for preliminary approval (Id.); (5) the LWDA has declined to submit any comment or objection to the settlement (Id. at ¶ 6); (6) the settlement reached by the parties and preliminarily approved by the Court in this case is larger than settlements recently approved by this Court of earlier misclassification cases brought against Instacart in California in the Camp case and Sumerlin v. Maplebear Inc. dba Instacart, Case NO. BC603030 (Id. at ¶ 9); (7) the Sumerlin settlement provided $2,000,000.00 to release the claims of 11,881 California class members covering 54 months of work (Id.); (8) the Camp settlement provided $4,625,000.00 to release the claims of 56,946 class members around the nation covering 81 months of work (Id.); (9) here, by contrast, the settlement provides $10.96 million to release the claims of approximately 66,000 California class members covering just 19 months of work (Id.); (10) after substantial scrutiny and briefing, the Camp and Sumerlin class-action settlements were granted final approval by the Honorable John Shepard Wiley of this Court in January 2018 (Id.); and (11) the proposed settlement here is clearly in line with or better than both Camp and Sumerlin in terms of the value placed on the claims of California Instacart workers, and it should be approved. (Id.)

Liss-Riordan also indicates that: (1) her assessment of the excellence of the settlement of this case was also informed by her extensive history litigating against Instacart prior to filing this case in the action of Busick v. Maplebear Inc. dba Instacart, JAMS Case No. 1100081511, which was litigated in arbitration (Id. at ¶ 10); (2) the litigation in Busick and Camp helped place her in a position to negotiate this excellent settlement with Instacart (Id. at ¶ 11); (3) she believes that the most valuable claim in this case is the expense reimbursement claim and, to a lesser extent, the minimum wage and overtime claims (Id. at ¶ 12); (4) the results of the settlement notice process have been positive (Id. at ¶ 32); (5) although there were 918 opt outs that appear to be signed by class members and meet other requirements under the settlement agreement, the vast majority of these opt outs are settlement class members represented by a single law firm, The Tidrick Law Firm LLP, which asserts that it intends to represent certain putative class members in individual arbitration cases against Instacart (Id. at ¶ 32); (6) indeed, only 11 of the 918 timely opt outs submitted in this case appear to have been sent by individual class members who decided on their own that they did not wish to be included in the settlement (Id.); (7) the remaining 907 were sent on a cookie-cutter form crafted by The Tidrick Law Firm and submitted by Tidrick (Id.); and (8) as set forth in the motion for final approval, courts have generally discounted these types of concerted and organized campaigns to drum up opt outs. (Id.)

Liss-Riordan also declares that: (1) the validity of the genuineness of the 907 opt outs submitted on these cookie-cutter forms are called into question by the fact that The Tidrick Law Firm submitted hundreds of other invalid opt out requests (Id. at ¶ 33); (2) these include 57 opt out requests on behalf of individuals who were not in the settlement class at all, 252 duplicates, and 2,011 requests that are not signed by the settlement class member—as required by the settlement agreement—and include the caveat “[t]his opt-out request is subject to the limitation that if the person specified below submits a claim to the settlement administrator, then this opt-out request is null and void” (Id.); (3) the sole objection in this case has been filed by Blackham, who was a named plaintiff representing the settlement class until he was apparently recruited by The Tidrick Firm to object to the settlement instead (Id. at ¶ 34); (4) the Settlement Agreement is attached as Exhibit A to her declaration (Id. at ¶ 38 and Exhibit A); (5) Blackham signed the settlement agreement—which includes a provision requiring him to support the settlement and not to opt out or reject it—and his objection therefore violates the Settlement Agreement that he signed (Id. at ¶ 34); (6) it appears that Blackham was solicited by The Tidrick firm and The Tidrick firm improperly reached out directly to Blackham, who she clearly represented in his claims against Instacart, and induced him to object to the settlement (Id.); and (7) her firm provided excellent representation to the settlement class as she has been extremely active in representing “gig economy” workers in misclassification cases in California. (Id. at ¶ 36.)

A review of the Settlement Agreement indicates that named plaintiffs represented that they would not opt out of the settlement agreement. (Id., Exhibit A at ¶ 9(d)(ii).)

Declaration with Respect to Implementation of Notice and Claims Administration

According to the declaration of Les Chappell (“Chappell”): (1) he is a Project Manager employed by Epiq Class Action & Claims Solutions, Inc. (“Epiq”) (Chappell Decl. at ¶ 1); (2) Epiq was appointed the Claims Administrator pursuant to the Court’s order preliminary approval dated August 28, 2019, and in accordance with the Settlement Agreement dated March 21, 2019 (Id. at ¶ 2); (3) on September 28, 2019, counsel for Instacart provided Epiq with one electronic file containing potential class member records (Id. at ¶ 4); (4) the file contained 66,268 rows of names, addresses, social security numbers, and hours worked for potential class members (the “Class Data”) (Id.); (5) Epiq loaded the information provided by Instacart into a database created for the purpose of administration of the proposed settlement agreement and Epiq assigned unique identifiers to all the records it received (Id. at ¶ 5); and (6) such unique identification resulted in 66,197 class member records (the “Class List”) (Id.)

Chappell also declares that: (1) pursuant to Section III 9(c) of the Settlement Agreement and Court order, Epiq was to cause the Court-approved notice to be formatted for electronic distribution by e-mail to Class Members for whom an e-mail was included in the Class Data (Id. at ¶ 6 and Exhibit A); (2) the notice contained substantial, albeit easy to read, information that made potential Class Members aware of their rights under the Settlement Agreement and provided instructions on how to obtain more information by visiting the settlement website or toll-free number, and it also contained a unique ID and password assigned to each Class Member for the purpose of filing a claim (Id.); (3) the e-mail notice provided Class Members with a link to the settlement website and the e-mail notice was formatted with easy to read text without elements that would increase the likelihood that the message would be blocked by Internet Service Providers and/or SPAM filters (Id. at ¶ 7); (4) Epiq sent the e-mail notice to the 66,268 potentially valid e-mail addresses for Settlement Class Members on October 15, 2019 and each e-mail notice was transmitted with a unique message identifier (Id. at ¶ 8); (5) for all Class Members with potentially valid e-mail addresses in the Class Data, Epiq closely monitored all deliverability attempts of the e-mail and a total of 65,727 e-mail notices were delivered (Id. at ¶ 9); (6) of the 541 e-mail notices that could not be delivered, 541 of them were undeliverable because the e-mail addresses no longer existed, the e-mail account was closed, or the e-mail address had a bad domain name or address error (collectively, the “Hard Bouncebacks”) (Id.); and (7) ultimately, Epiq was able to deliver direct e-mail notice to 98.49% of the e-mail addresses provided in the Class Data. (Id.)

Chappell also indicates that: (1) per the direction of class counsel and Instacart’s counsel, Epiq scheduled regular follow-up e-mail notice to all records without a claim on file (Id. at ¶ 10); (2) Epiq re-mailed the reminder notice to 64,026 potentially valid e-mail addresses on November 19, 2019 and to 61,925 potentially valid e-mail addresses on December 10, 2019 (Id.); (3) Epiq will continue sending e-mailed reminders on a weekly basis until the January 14, 2020 hearing date (Id.); (4) prior to commencing any mailings for this matter, Epiq established a dedicated post office box to mail notice from and to allow Class Members to contact the Claims Administrator or submit documents by mail, and Epiq has and will continue to maintain the post office box throughout the administration process (Id. at ¶ 11); (5) pursuant to Section III (9)(c)(ii) of the Settlement Agreement and the Court’s order, on November 5, 2019, Epiq sent the notice and claim form (the “Claim Package”) to each of the 541 e-mail addresses that “bounced” back as undeliverable in the e-mail campaign effort, and had a valid physical mailing address on file (Id. at ¶ 12); (6) on December 4, 2019, Epiq sent the Claim Package to each of the e-mail addresses that “bounced” back as undeliverable in the follow-up e-mail notice effort who had a valid physical mailing address on file (Id.); (7) in addition, a Claim Package has been mailed via First Class U.S. Mail to all persons who submitted a request for one (Id. at ¶ 13); and (8) as of December 13, 2019, 66 Claim Packages have been mailed as a result of such requests from class members. (Id.)

Chappell also declares that: (1) the return address on the Claim Package is the post office box maintained by Epiq and as of December 13, 2019, zero Claim Packages have been returned by the USPS with forwarding information (Id. at ¶ 14); (2) as of December 13, 2019, Epiq has mailed and/or emailed notice to 66,197 Class Members, with notice to 29 unique class members currently known to be undeliverable which is a deliverable rate to 99.8% of the class (Id. at ¶ 15); (3) on October 14, 2019, Epiq launched a website (the “Website”) that potential Class Members could visit to obtain additional information about the proposed settlement as well as important documents including the long-form notice, Settlement Agreement, amendments to the settlement agreement, preliminary approval order, and any other relevant information that the parties agree to provide and that the Court may require (Id. at ¶ 16); (4) the Website allows Class Members to file a claim via the Website using the Unique ID and Password provided to them in their individual notice (Id.); (5) the Website contains a summary of options available to Class Members, deadlines to act, and provides answers to frequently asked questions (Id.); (6) references to the Website were displayed prominently in the notice and claim form (Id.); and (7) as of December 13, 2019, the Website had been visited by 19,106 unique visitors and 58,482 website pages have been viewed, and Epiq has and will continue to maintain and update the Website throughout the administration of the proposed settlement. (Id. at ¶ 17.)

Chappell further declares that: (1) on October 14, 2019, Epiq established and is maintaining a toll-free Voice Response Unit (“VRU”) to provide information and accommodate inquiries from Class Members (Id. at ¶ 18); (2) pursuant to Section III (8)(d) of the Settlement Agreement, Class Members who wished to be excluded from the settlement were required to mail written Request for Exclusion to Epiq postmarked on or before November 14, 2019 (Id. at ¶ 21); (3) under terms of the Settlement Agreement, a written Request for Exclusion must be signed by the Class Member to be valid (Id.); (4) as of December 13, 2019, Epiq has received 918 timely Requests for Exclusion that appear to be signed by the Class Member and meet the other requirements under the Settlement Agreement (Id. at ¶ 22); (5) Epiq received 27 late postmarked requests (Id. at ¶ 23); and (6) Epiq also received 2,528 requests that were deemed invalid under the Settlement Agreement because they either were submitted by a third-party and did not bear the Class Member’s signature or purported to opt out individuals who are not members of the settlement class in the first instance (Id. at ¶ 24.)

Chappell declares that with respect to Requests for Exclusion: (1) on November 15th, three boxes containing 3,635 paper requests for exclusion were received by Epiq and the boxes indicated they were mailed to Epiq by the Tidrick Law Firm (Id. at ¶ 26); (2) Epiq analyzed those requests for exclusion submitted by the Tidrick Law Firm and determined that 2,011 requests were deemed invalid because they were submitted by a third-party and did not bear the individual Class Member’s signature (Id.); (3) of the remaining 1,624 requests, 248 requests were duplicate requests for the same individual and, after the requests were de-duplicated, there were only1,376 unique requests for exclusion that remained (Id.); (4) of those 1,376 unique requests for exclusion, 470 requests were for individuals who are not members of the settlement class (Id.); (5) on December 9, 2019, an additional box containing 77 paper requests for exclusion was received by Epiq and the box was sent by the Tidrick Law Firm and was postmarked on December 6, 2019 which is after the November 14, 2019 deadline (Id. at ¶ 27); (6) Epiq analyzed the requests for exclusion and determined that four were duplicate requests for the same individual and, after the requests were de-duplicated, there were 73 unique requests for exclusion that remained (Id.); (7) of the 73 unique requests for exclusion that remained, 47 were for individuals who are not members of the settlement class (Id.); (8) two requests for exclusion were submitted individually by the Tidrick Law firm, one on November 14, 2019 and one on November 15, 2019 (Id. at ¶ 28); (9) after removing invalid, late, duplicate, and non-class member requests for exclusion, only 907 requests for exclusion submitted by the Tidrick Law Firm remained (Id. at ¶ 29); and (10) the Tidrick Law Firm’s requests for exclusion account for approximately 98.8% that appear to be signed by the Class Member and meet the other requirements under the Settlement Agreement. (Id.)

With respect to objections received, Chappell declares that: (1) pursuant to Section III (8)(e) of the Settlement Agreement, Class Members who wished to object to the Settlement Agreement were required to submit written objections to the Claims Administrator, such that they were postmarked on or before the objection deadline of November 14, 2019 (Id. at ¶ 30); (2) as of December 13, 2019, Epiq is aware of or has received one timely written objection to the Settlement Agreement, two duplicate objections, and one late objection (Id.); and (3) all four objections were filed by Blackham (Id. at ¶ 30 and Exhibit C.)

Timeliness of Blackham’s Objections to the Settlement Agreement

As indicated above, Blackham filed: (1) the Initial Objection; (2) the Supplemental Objection; and (3) the Second Supplemental Objection with respect to the Settlement Agreement. Blackham objects to the Settlement Agreement, in part, due to the parties’ alleged non-compliance with the terms set forth in the Settlement Agreement. Blackham’s Supplemental Objection and Second Supplemental Objection recognizes that both objections were submitted late to the Claims Administrator beyond the November 14, 2019 deadline for objections set forth in the Settlement Agreement. Blackham signed the Settlement Agreement and the two amendments thereto. (Liss-Riordan Decl. at Exhibit A.)

While Blackham indicates that the basis for his Supplemental Objection and Second Supplemental Objection could not be discovered by the November 14, 2019 deadline to file objections, Blackham provides no evidentiary support in the form of a declaration to support this contention. The Settlement Agreement clearly states that “untimely objections shall not be considered. Members of the Settlement Class who fail to mail timely written objections . . . shall be deemed to have waived any objections . . . and shall be forever barred and foreclosed from making any objection . . . to the Settlement [Agreement], including its allocation plan, fee and expense award and Class Representative Service Awards.” (Liss-Riordan Decl, Exhibit A at ¶ 9(e)(v).) Due to lack of compliance with the explicit terms of the Settlement Agreement, the Court finds that Blackham’s Supplemental Objection and Second Supplemental Objection are not timely. Thus, such supplemental objections will not be considered by the Court in assessing whether to grant final approval of the Settlement Agreement. Blackham seeks to hold Plaintiffs bound to terms of the Settlement Agreement yet seeks to excuse himself from the terms therein with respect to untimely objections thereto. The Court is exercising its discretion and has considered the Initial Objection despite Blackham’s having warranted that he would not object to the Settlement Agreement.

First, the Court will assess whether on its face final approval of the Settlement Agreement should be granted. Then, the Court will address the objections set forth in Blackham’s Initial Objection to the Settlement Agreement. Blackham’s Initial Objection includes objections with respect to attorneys’ fees and costs. The Court will address such objections in connection with the Court’s ruling on the motion for attorneys’ fees and costs.

MOTION FOR FINAL APPROVAL

California Rules of Court, Rule 3.769 sets forth the procedure for the approval of a class action settlement in California. California Rules of Court, Rule 3.769(a) states that “[a] settlement or compromise of an entire class action, or of a cause of action in a class action, or as to a party requires approval of the court after hearing.” California Rules of Court, Rule 3.769(e) provides that “[i]f the court grants preliminary approval, its order must include the time, date, and place of the final approval hearing; the notice to be given to the class; and any other matters deemed necessary for the proper conduct of a settlement hearing.” California Rules of Court, Rule 3.769(f) provides that “[i]f the court has certified the action as a class action, notice of the final approval hearing must be given to the class members in the manner specified by the court. The notice must contain an explanation of the proposed settlement and procedures for class members to follow in filing written objections to it and in arranging to appear at the settlement hearing and state any objections to the proposed settlement.” The sole inquiry with respect to final approval of a class action settlement is “the fairness of the proposed settlement.” (Cal. Rules of Court, rule 3.769(g).) Courts utilize an approach of meticulously scrutinizing class action settlements at the preliminary approval stage and determine at that time “whether the settlement is fair, reasonable, and adequate.” (Cotter v. Lyft, Inc. (2016) 193 F.Supp.3d 1030, 1037.)

Issue No.1: The Presumption of Fairness

“The burden is on the proponent of the settlement to show that it is fair and reasonable.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 245.) “[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.” (Id.)

For purposes of conciseness, and to avoid undue repetition, the Court references its August 28, 2019 ruling on the motion for preliminary approval and the declarations of Liss-Riordan referenced therein. The Court also references the declarations of Liss-Riordan and Chappell from above. The Court finds that the Wershba factors have been met. There is only one objection to the Settlement Agreement, which is from Blackham.

Therefore, the Court finds that there exists a presumption of fairness with respect to final approval of the Settlement Agreement.

Issue No.2: The Existence of the Kullar Factors

In determining whether a class action settlement should be granted final approval, a Court assesses the following factors: (1) the strength of Plaintiff’s case; (2) the risk, expenses, complexity and likely duration of further litigation; (3) the risk of maintaining class action status through trial; (4) the amount offered in settlement; (5) the extent of discovery completed and stage of the proceedings; (6) the experience and views of counsel; (7) the presence of a government participant; and (8) the reaction of the class members to the proposed settlement. (Kullar, supra, at 168 Cal.App.4th 128.) “This list is not exhaustive and should be tailored to each case.” (Id.) “The court undoubtedly should give considerable weight to the competency and integrity of counsel . . . in assuring itself that a settlement agreement represents an arm’s length transaction entered without self-dealing or other potential misconduct.” (Id. at 129.) “While an agreement reached under these circumstances presumably will be fair to all concerned, particularly when few of the affected class members express objections, in the final analysis it is the court that bears the responsibility to ensure that the recovery represents a reasonable compromise, given the magnitude and apparent merit of the claims being released, discounted by the risks and expenses of attempting to establish and collect on those claims by pursuing the litigation.” (Id.)

The Strength of Plaintiffs’ Case

“[T]he merits of the underlying class claims are not a basis for upsetting the settlement of a class action.” (Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 246.) “In the context of a settlement agreement, the test is not the maximum amount plaintiffs might have obtained at trial on the complaint, but rather whether the settlement is reasonable under all of the circumstances.” (Id. at 250.)

The Court finds that Plaintiffs have set forth sufficient information with respect to the strength of their case and Plaintiffs have summarized the valuation of the claims being released. (Liss-Riordan Decl. at ¶¶ 12-31.) The most valuable claim asserted is the expense reimbursement claim, which is valued at $24,000,000.00. (Id. at ¶ 13.) Thus, the settlement amount of $10,965,000.00—via the gross settlement fund—represents approximately 46% of the maximum theoretical recovery of the most valuable claim. Liss-Riordan also indicates that there exist various obstacles to proving Plaintiffs’ claims. (Id. at ¶¶ 12-31.)

Thus, Plaintiffs would have faced obstacles in succeeding on their various claims.

Risks, Expenses, and Complexity of Further Litigation

The Court already has indicated via its ruling on the motion for preliminary approval that “[g]iven the nature of class claims, the case is likely to be expensive and lengthy to try as procedural obstacles exist.”

The Amount Offered in Settlement

The amount offered in settlement in this action is $10.96 million, which covers 19 months of work by Shoppers from Instacart. Thus, the settlement amount here is greater than Camp and Sumerlin, in which the settlements were less in monetary terms and covered a longer period of work and were granted final approval. Camp provided $4.625 million to release the claims of 56,946 class members. (Liss-Riordan Decl. at ¶ 9.) Here, in contrast, the class is composed of 66,197 members and the settlement amount is more than double of that approved in Camp.

The Extent of Discovery Completed and Stage of Proceedings

Pursuant to the motion for preliminary approval, the Court has already found that the parties have exchanged extensive data in connection with settlement negotiations. With respect to the motion for final approval, Liss-Riordan declares that: (1) the parties engaged in extensive data analysis and engaged in exhaustive in-depth discussions; and (2) the parties engaged in multiple mediations. (Liss-Riordan Decl. at ¶ 5.)

The Experience and Views of Counsel

Pursuant to the motion for preliminary approval, the Court has already found that counsel who negotiated the class action settlement is experienced in the type of litigation that is the subject of this case. Liss-Riordan has over 15 years of experience litigating worker misclassification cases. (Id. at ¶ 36.)

Presence of a Government Participant

Where state or federal officials do not object to a class action settlement after notification, that factor weighs in favor of final approval. (Schuchardt v. Law Office of Rory W. Clark (N.D. Cal. 2016) 314 F.R.D. 673, 685.)

The Court has already found, in connection with its ruling on the motion for preliminary approval, that there is no governmental participant. Plaintiffs, however, provided notice to the LWDA of the settlement but the LWDA has declined to submit any comment or objection to the settlement. (Id. at ¶ 6.)

Reactions of Class Members

“The number of class members who object to a proposed settlement is a factor to be considered.” (Schuchardt, supra at 314 F.R.D. 685.) “[T]he absence of a large number of objections to a proposed class action settlement raises a strong presumption that the terms of the proposed class settlement are favorable to the class members.” (Id.) “[A] court may appropriately infer that a class action settlement is fair, adequate, and reasonable when few class members object to it.” (Id. at 685-686.)

Here, there has only been a single timely objection to the class action settlement. This factor weighs in favor of final approval.

The Court finds that the Kullar factors have been met. This weighs in favor of final approval of the Settlement Agreement. The Court will now address Blackham’s objections.

Blackham’s Objections

Multiple parties, including Instacart, filed responses to Blackham’s Initial Objection. Instacart contends that the Court should overrule all of Blackham’s objections due to his violation of the Settlement Agreement, where he agreed that he would not object to the Settlement Agreement. As stated above, despite Blackham’s objecting to the Settlement Agreement and thereby breaching its terms, the Court will consider the Initial Objection filed by Blackham. The Court, however, finds that some of his objections are unsupported by any citation to legal authority. Where Blackham only provides factual assertions, without citation to legal authority to a particular objection, the Court finds that Blackham’s objection is unsupported and is waived[4]. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Inadequacy of the Settlement Notice

Blackham contends that: (1) the Settlement Notice is confusing and inadequate as it does not provide sufficient information for a layperson to make an informed decision; (2) the Settlement Notice does not provide the class member an opportunity to calculate the amount of money that a class member may receive under the settlement; (3) the settlement website did not initially include copies of the amendments to the Settlement Agreement; and (4) the Settlement Notice did not inform class members of pending arbitration demands.

“The principal purpose of notice to the class is the protection and integrity of the class action process, one of the functions of which is to prevent burdening the courts with multiple claims where one will do.” (Cartt v. Superior Court (1975) 50 Cal.App.3d 960, 970.) “[T]he trial court has virtually complete discretion as to the manner of giving notice to class members.” (7-Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1164.) The notice must only “fairly apprise the prospective members of the class of the terms of the proposed settlement and of the options that are open to them in connection with [the] proceedings.” (Id.)

The Court finds that the Settlement Notice is adequate to apprise class members of the terms of the proposed settlement. (Tidrick Decl. at Exhibits A-D.) The Settlement Notice informs individuals of: (1) the terms of the settlement; (2) why the settlement was entered into; (3) the basis for the lawsuit; (4) what a party is releasing by participating in the settlement; (5) opt-out provisions; and (6) the methods to go about objecting to the settlement. The Settlement Notice is adequate under Southland Corp. A layperson can make an informed decision based on the Settlement Notice.

Inadequacy of the Settlement Amount and Fairness of the Settlement Agreement

Blackham asserts that the settlement amount is insufficient. Blackham asserts that if the Court awards the full amounts of allowed attorneys’ fees, litigation costs, administration expenses, service awards, and payment to the LWDA, then the amount remaining for the 66,186 class members is no more than $6,665,609.84, which is only $100.71 per class member. Blackham asserts that the settlement was improperly valued because it did not include the maximum value of every potential claim pursuant to local minimum wage ordinances and local sick leave ordinances.

In connection with final approval, all that is required is “a record which allows an understanding of the amount that is in controversy and the realistic range of outcomes of the litigation.” (Munoz v. BCI Coca-Cola Bottling Co. of Los Angeles (2010) 186 Cal.App.4th 399, 402.)

Here, the Court has more than a sufficient record to understand the range of outcomes of the litigation as well as an understanding of the amount in controversy. The settlement here provides more value on its face than the settlements approved in Camp and Sumerlin, both cases in which Instacart was a party and the same claims were alleged. In connection with the motion for preliminary approval and the motion for final approval, the Court was provided with ample information to assess the value of the parties’ claims. In connection with both motions, Liss-Riordan has set forth extensive methodology with respect to the valuation of the claims. In connection with final approval, Liss-Riordan has provided sufficient information with respect to the valuation of the claims in this action. (Liss-Riordan Decl. at ¶¶ 12-31.)

FLSA Release

Blackham contends that the change to the release of FLSA claims is unlawful and was not adequately disclosed to the Court. Blackham contends that the FLSA release pursuant to the Settlement Agreement purports to release claims of class members who take no action.

The Court finds that Blackham’s objection on this point is factually inaccurate. The parties briefed this issue and the Court was aware of such release pursuant to such briefing and the evidence submitted in support of preliminary approval in this action. Moreover, courts have held that those settlement class members who do not take action can be deemed to have released FLSA claims without opting-in to the release of such claims. (Richardson v. Wells Fargo Bank, N.A. (5th Cir. 2016) 2016 WL 6068120 at *6.)

Broad Nature of the Release

Blackham contends that because the settlement purports to release claims under local minimum wage and local sick leave ordinances, such claims are not alleged in the operative complaint, and no value was assigned to such claims, such release of those claims is overly and impermissibly broad.

“A settlement agreement may preclude a party from bringing a related claim in the future even though the claim was not presented and might not have been presentable in the class action, but only where the released claim is based on the identical factual predicate as that underlying the claims in the settled class action.” (Hesse v. Sprint Corp. (9th Cir. (Cal.) 2010) 598 F.3d 581, 590.)

The wage-related claims being released under the Settlement Agreement are based on the crux of the operative complaint in the Groves Action, which is the alleged misclassification of Shoppers. Moreover, the Settlement Agreement does not release all employment-related claims. (Liss-Riordan Decl, Exhibit A at ¶ III(18)(b).)

Thus, the Court finds that Blackham’s objection on this point is not persuasive.

Violation of Instacart’s Arbitration Agreement

Blackham asserts that the Settlement Agreement violates Instacart’s agreement with its Shoppers, which requires arbitration of any disputes and bars a Shopper from bringing an action in a class or collective proceeding. (Tidrick Decl., Exhibit E at p.11.) Blackham’s contends that the Court cannot certify a class action that includes those who signed an agreement containing an arbitration provision.

Approval of a class action settlement is allowed even where an arbitration agreement exists between the parties that bars class actions. (In re TracFone Unlimited Service Plan Litigation (N.D. Cal. 2015) 112 F. Supp.3d 993, 999; Raniere v. Citigroup Inc. (S.D.N.Y. 2015) 310 F.R.D. 211.) “[A] defendant’s attempt to settle a case with a plaintiff is not inconsistent with that defendant’s right to arbitrate a separate case, even if the settlement is on a class basis.” (Hughes v. S.A.W. Entertainment, Ltd. (N.D. Cal. 2019) 2019 WL 2060769 at *17.) “To hold that a defendant waives its right to compel arbitration in one case by entering a judicial settlement in another case would create disincentive to settle for any defendant facing multiple suits.” (Id.)

Thus, the settlement here can still be approved despite the presence of the arbitration agreement containing a class action waiver.

Limitation of the Settlement Class

Blackham asserts that the settlement class should be limited to the 82 individuals who opted out of the arbitration agreement.

Blackham’s citations to In re Apple[5] and Walnut Producers[6] are not applicable to this action.

Thus, Blackham’s objection on this point is not persuasive.

Information Allegedly Concealed from the Court

Blackham asserts that no party ever informed the Court that: (1) the Tidrick Law Firm LLP represents approximately 2,000 current and former Instacart workers, each of which has made an individual arbitration demand against Instacart; (2) those individuals have been included in the proposed class action settlement class; and (3) as of August 28, 2019, approximately 960 arbitration demands had been served on Instacart or its counsel. (Tidrick Decl. at ¶¶ 3-4.)

“[C]lass action settlements should be scrutinized more carefully if there has been no adversary certification.” (Luckey v. Superior Court (2014) 228 Cal.App.4th 81, 94.) California Rules of Court, Rule 3.300(b) provides that “[w]henever a party to a civil action knows or learns that the action or proceeding is related to another action or proceeding pending, dismissed, or disposed of . . . the party must serve and file a Notice of Related Case.”

Instacart’s counsel, Ryan K. Wong (“Wong”) declares that: (1) The Tidrick Law Firm only threatened to file individual arbitration demands against Instacart for approximately 968 Shoppers as of August 29, 2019 (Wong Decl. at ¶ 7); (2) based on Instacart’s search via information obtained from the Tidrick Law Firm, it appeared that approximately 330 of The Tidrick Firm’s purported clients appeared to have never provided services to Instacart (Id. at ¶ 8); and (3) to this date, The Tidrick Law Firm has only threatened to file individual arbitration demands against Instacart. (Id. at ¶ 6.) Moreover, Wong indicates that in July 2019, The Tidrick Law Firm represented that it was counsel for 297 Shoppers who wanted to bring individual arbitration claims against Instacart. (Id. at ¶ 5.) Instacart, prior to preliminary approval, disclosed all then-pending lawsuits that had been filed against it that alleged the same or similar claims as in this case via multiple Notices of Related Cases. (Id. at ¶ 4.) Thus, there have only been threats of arbitration and not explicit arbitration demands pursuant to Wong’s declaration. Also, under California Rules of Court, Rule 3.1300, neither Instacart nor any other party was required to disclose The Tidrick Law Firm’s association with this case. The Tidrick Law Firm could have appeared at the August 29, 2019 preliminary approval hearing to vocalize any objections to the preliminary approval.

Unreasonably Short Objection and Opt-Out Period

Blackham contends that the opt-out and objection period of 30 days is unreasonably short.

A 30-day period to object to a class action settlement is a reasonable period of time. (Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 690.) Also, courts have deemed a 30-day period to opt-out or object to a class action settlement as an appropriate length of time. (Lewis v. Starbucks Corp. (E.D. Cal. 2008) 2008 WL 2196690 at *8.) There is no requirement that “every improvement in claims procedures should automatically require conforming changes to otherwise permissible opt-out procedures.” (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 59.)

Thus, the Court finds that the 30-day objection and opt out period set forth in the settlement is reasonable and appropriate. The Court finds the objections of Blackham—except those with respect to attorneys’ fees and enhancements which will be addressed below in connection with the attorneys’ fees motion—are not persuasive and do not prevent final approval.

Therefore, the Court finds that it is appropriate to grant final approval to the class action settlement. The Court will now address the motion for attorneys’ fees, litigation expenses, and class representative service enhancements.

MOTION FOR ATTORNEYS’ FEES, LITIGATION EXPENSES, AND CLASS REPRESENTATIVE SERIVCE ENHANCEMENTS

Initially, Blackham objects to the motion for attorneys’ fees and asserts that the failure to file a motion for attorneys’ fees and service awards before the deadline for objections is unreasonable. The Court finds that the cases cited by Blackham in support of this argument are not applicable to this action. (Blackham Initial Objection at 18:25-19:13.) Moreover, California Rules of Court, Rule 3.769, which concerns settlements of class actions and final approval, sets forth no timeline for the filing of a motion for attorneys’ fees in connection with final approval. Thus, the Court rejects Blackham’s objection on this ground and will assess the merits of the motion for attorneys’ fees.

Blackham also advances additional objections to the motion for attorneys’ fees such as: (1) the requested attorneys’ fees are too high[7]; (2) counsel for former objectors—Sarah Lozano (“Lozano”), Taylor, Timothy Hearl (“Hearl”), and Mimi Hayes (“Hayes”)—should not be awarded attorneys’ fees; and (3) the service awards are unfair.

As explained below, the only objection of Blackham with respect to attorneys’ fees which has merit is the objection that the service awards are too high for some of the named plaintiffs. This, however, does not prevent the granting of the motion for attorneys’ fees as explained below.

Crux of the Motion

Plaintiffs in the Groves Action filed a motion for attorneys’ fees, litigation expenses, and class representative service enhancements. Plaintiffs, as well as Lozano, Hearl, Hayes, and Taylor (the “Related Action Plaintiffs”), move for an order awarding attorneys’ fees, litigation expenses, and the Plaintiffs’ service awards. Plaintiffs request the following class representative enhancements: (1) $20,000.00 each for Groves and Hammons as well as for Lozano, Hearl, Hayes, and Taylor; (2) $5,000.00 each for Cortez and Pierce; and (3) $1,000.00 for Burks for their service in this litigation. Plaintiffs contend that the service enhancements are justified: (1) because the parties’ associating their names with a high-profile lawsuit such as this one creates a risk of being black-balled in the “gig economy” industry and beyond; and (2) the requested enhancements are also in line with incentive awards approved by this Court. Instacart does not oppose Plaintiffs’ motion. The sole objection is from Blackham.

Plaintiffs contend that: (1) the California Supreme Court has endorsed the use of percentage approach to award attorneys’ fees in class action wage and hour cases; (2) counsel’s request for 33% of the Gross Common Fund for attorneys’ fees is presumptively reasonable; (3) other factors support Plaintiffs’ request for fees; (4) a lodestar cross-check, if applied, supports Plaintiffs’ fee request; and (5) Plaintiffs’ request for class representative service enhancements is reasonable.

Declaration of Liss-Riordan in Support of Attorneys’ Fees

In support of Plaintiffs’ motion for attorneys’ fees, costs, and class representative service enhancements, Liss-Riordan provides a declaration setting forth: (1) her extensive professional background indicating that she has practiced exclusively in the field of employment law on the side of the employees for her entire 20-year career, and her specialty for most of her legal career has been wage and hour class actions (Liss-Riordan Decl. at ¶¶ 3-8); (2) that she has gained a reputation as the preeminent lawyer challenging the use of independent contractors in the so-called “gig economy” and she has litigated significant and numerous cases against a number of “gig economy” companies (Id. at ¶¶ 9-12); (3) that she has used her litigation successes to secure substantial settlements on behalf of gig economy workers (Id. at ¶ 9); (4) that she and her firm have pioneered groundbreaking precedents in a variety of industries establishing that workers have been misclassified as independent contractors (Id. at ¶ 12); and (5) that she and her firm have also worked on many cases for which they received no compensation at all because the cases were not successful. (Id. at ¶ 13.)

Liss-Riordan also declares that: (1) over the last two years, she conservatively estimates that she has spent approximately 200 hours on this case primarily on activities such as reviewing and editing court filings in connection with motions, communicating with Plaintiffs and other Shoppers, communicating with defense counsel and counsel for Related Action Plaintiffs, preparing for mediation, and attending three full days of mediation as well as engaging in several months of settlement negotiations with Instacart’s counsel (Id. at ¶ 15); (2) that figure does not include future work with respect to Blackham’s objections, traveling to and attending the final approval hearing, and overseeing the settlement administration process which she estimates will take an additional 50 hours (Id.); (3) she estimates that she spent 550 hours on work that led directly to the outcome here in achieving this settlement (Id. at ¶ 15); (4) her hourly rate is $850.00 and she has been awarded this reasonable rate in another recent approval of a gig economy settlement (Id. at ¶ 16); and (5) other top lawyers charge rates in conformity or higher than her hourly rate. (Id.)

Liss-Riordan also declares that: (1) the hourly rate of Adelaide Pagano (“Pagano”), who is a partner at Liss-Riordan’s firm, of $425.00 is reasonable (Id. at ¶¶ 18-19); (2) the time records of Pagano show that she spent 175 hours on this case and assisted with this case by doing tasks such as reviewing data analysis regarding damages and penalties and drafting first drafts of all PAGA letters, complaints, and briefs, however (Id. at ¶ 18); (3) Pagano also will conduct work with respect to Blackham’s objections, overseeing the settlement administration process, and she also worked more than 350 hours with respect to objection to the prior Camp settlement and working on the Busick litigation, both of which had a direct impact on their efforts in this action (Id. at ¶ 18); (4) when that time is included, Pagano will have spent approximately 545 hours with work that achieved the settlement in this action (Id.); (5) various support staff—Rebecca Shuford, Mary Franco, and Maria Jose Cedeno—worked on tasks with respect to this case and have spent at least 75 hours working on this case (Id. at ¶¶ 20-22); and (6) an hourly rate for those paralegals’ services rendered in this class action litigation is a reasonable rate based on her knowledge of fees awarded in other cases of approximately experience and with similar positions within a law firm (Id. at ¶ 23).

Liss-Riordan declares that: (1) their total lodestar in this litigation is approximately $966,693.00 (Id. at ¶ 24); (2) costs equal $40,068.00 (Id.); (3) the lodestar results in a multiplier of 3.16 with respect to her firm’s share of attorney’s fees (83.5% of the overall fee award) (Id. at ¶ 25); (4) the multiplier is warranted based on the excellent results obtained and given the hours her firm spent on the Camp and Busick litigation where they immersed themselves in Instacart’s business model and wrote more than twenty substantive briefs (Id.); (5) her firm’s work on those litigation efforts helped to bring Instacart to the table at a relatively early stage in this action because Instacart was well aware of the hundreds of hours it could expect to litigate if this case proceeded (Id.); and (6) she has reviewed the declarations submitted by Plaintiffs and agrees with the substance of their declarations, and their involvement in the case was instrumental in obtaining the settlement. (Id. at ¶ 26.)

Declaration of Allen Graves

Allen Graves, who is counsel for Taylor, provides a declaration setting forth: (1) his educational experience and work experience (Graves Decl. at ¶¶ 2-7); (2) the litigation history prior to the Groves Action with respect to his efforts litigating the Taylor Action (Id. at ¶¶ 8-15); (3) the substance of Taylor’s initial objections in the Groves Action (Id. at ¶¶ 16-22); (4) he believes the Settlement Agreement is fair and adequate (Id. at ¶ 35); (5) the Groves, Lozano, and Taylor plaintiffs have agreed to the following fee split amount counsel—83.5% to counsel for Groves, 8.25% to counsel for Lozano, and 8.25% to counsel for Taylor (Id. at ¶ 38 and Exhibit 3); (6) his hourly rates are reasonable and multiple courts have approved his hourly rate and those of his associates and staff as such (Id. a ¶¶ 41-42); (7) his billable rate is $625.00 per hour (Id. at ¶ 47); (8) when he negotiated his fee agreement for the Taylor Action, it was agreed that he would not receive compensation if the cases were unsuccessful (Id. at ¶ 49); (9) during this litigation, he has had to turn away would-be clients due to the work on this litigation for 1.5 years (Id. at ¶¶ 50-51); (10) his firm advanced costs and this case was complex (Id. at ¶¶ 51-52); and (11) his office has worked 446 hours on this case and the total value on this case before any multiplier is $216,581.00. (Id. at ¶ 54 and Exhibit 5.) Graves also states that: (1) assuming a fee award to his firm of $310,675.00, the lodestar multiplier for his firm’s portion of the fee would be 1.4 (Id. at ¶ 54); and (2) Taylor has contributed significant time and effort to this case through his activities. (Id. at ¶¶ 56-58.)

Declaration of Robert S. Arns

Robert S. Arns (“Arns”) provides a declaration which indicates: (1) he is counsel for Related Action Plaintiffs (Arns Decl. at ¶ 1): (2) his firm expended 56.6 hours in the litigation of the Groves Action and such hours do not include work done by his office and prosecution of the related actions brought by Lozano, Hayes, and Hearl in the San Francisco Superior Court (Id. at ¶ 3); (3) his practice experience and accolades (Id. at ¶ 4); (4) Lozano, Hayes, and Hearl have spent considerable time and effort in connection with their claims and those of the class (Id. at ¶ 5 and Exhibits 1-3); and (5) the involvement of Lozano, Hayes, and Hearl were instrumental in obtaining the broad benefits in this settlement. (Id. at ¶ 6.)

Declarations of Plaintiffs and Related Action Plaintiffs

The declarations of Groves, Hammons, Cortez, Pierce, Taylor, and Burks each set forth: (1) their efforts in assisting their respective counsel in connection with this action; (2) their efforts in communicating with a broader audience through various channels in order to increase engagement with respect to this action; and (3) and their efforts taking an active role with respect to this action. The declarations of Lozano, Hayes, and Hearl are attached as Exhibits 1 to 3, respectively, to the declaration of Arns. Such declarations set forth their respective efforts in assisting with their respective actions, as well as the Groves Action, such as dispersing information via acting as a liason to other class members.

Issue No.1: Tertiary Objection

Initially, the Court will address Blackham’s objection that counsel for the former objectors to the Settlement Agreement—Lozano, Taylor, Hearl, and Hayes—should not be awarded attorneys’ fees because such fees are not supported by the law. An objector to a class settlement is entitled to an award of attorneys’ fees where “his or her efforts produced a concrete benefit for the class, allowing it to recover more (or otherwise be in an improved position) that it would have been in the absence of the objector’s efforts.” (Consumer Cause, Inc. v. Mrs. Gooch’s Natural Food Markets, Inc. (2005) 127 Cal.App.4th 387, 398.) Where an objector brings attention to an action or partakes in activities related to settlement, such actions may be of concrete benefit. (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 62.)

Each of the former objectors had separate actions against Instacart which were related to the Groves Action. The Court references the declarations described above. The Court finds that such actions of the former objectors are a concrete benefit.

Thus, the Court rejects Blackham’s objection that counsel for the former objectors should not be awarded attorneys’ fees.

Issue No.2: The Percentage Fee Approach

“California has long recognized, as an exception to the general American rule that parties bear the costs of their own attorneys, the propriety of awarding an attorney fee to a party who has recovered or preserved a monetary fund for the benefit of himself or herself and others.” (Laffitte v. Robert Half Internat. Inc. (2016) 1 Cal.5th 480, 488-489.) “In awarding a fee from the fund or from the other benefitted parties, the trial court acts within its equitable power to prevent the other parties’ unjust enrichment.” (Id. at 489.) “[U]se of the percentage method to calculate a fee in a common fund case, where the award serves to spread the attorney fee among all the beneficiaries of the fund, does not itself constitute an abuse of discretion.” (Id. at 503.) “[W]hen class action litigation establishes a monetary fund of the benefits of class members, and the trial court in its equitable powers awards class counsel a fee out of that fund, the court may determine the amount of a reasonable fee by choosing an appropriate percentage of the fund created.” (Id.) The advantages of the percentage method are “relative ease of calculation, alignment of incentives between counsel and the class, and better approximation of market conditions in a contingency case, and the encouragement it provides counsel to seek an early settlement and avoid unnecessarily prolonging the litigation.” (Id.) “The choice of a fee calculation method is generally one within the discretion of the trial court, the goal under either the percentage or loadstar approach being the award of a reasonable fee to compensate counsel for their efforts.” (Id. at 504.) “[R]egardless whether the percentage method or the lodestar method is used, fee awards in class actions average around one-third of recovery.” (Chavez v. Netflix, Inc. (2008) 162 Cal.Appp.4th 43, 65, fn.11.)

The Court references all the declarations recited above. The Court finds that attorneys’ fees equating to 33% of the Gross Common Fund are reasonable. The Court exercises its discretion to utilize the percentage approach to award attorneys’ fees in connection with this action. The Settlement Agreement provides for the Gross Common Fund, which is solely for the benefit of the class members. The Settlement Agreement provides for attorneys’ fees and costs being paid from such fund. The requested attorneys’ fees, which is capped at $3,665,000.00, are no more than one-third of the Gross Common Fund or 33%. Based on the declarations of counsel, substantial effort was expended in connection with this action. The Court need not apply a lodestar cross-check pursuant to Laffitte.

Thus, the award of attorneys’ fees in the amount of $3,665,000.00 pursuant to the terms of the Settlement Agreement is appropriate and reasonable pursuant to Robert Half and Chavez.

Issue No.3: Other Reasonableness Factors

In assessing the reasonableness of a requested attorneys’ fees award, a court evaluates certain factors such as: (1) the results achieved; (2) the risk of litigation; (3) the skill required and quality of the work; (4) the contingent nature of the fee and the financial burden carried by the plaintiffs; and (5) awards made in similar cases. (Hendricks v. Starkist Co (N.D. Cal. 2016) 2016 WL 5462423 at *11.)

The Court incorporates the declarations of the parties from above. The Court also references Liss-Riordan’s declaration in support of final approval. Counsel have substantial experience as practitioners. The respective clients were taken on a contingency fee basis and counsel advanced costs. Due to the nature of the claims, there was a substantial risk that Plaintiffs would not prevail. Moreover, the Settlement Agreement also provides for non-monetary results such as changes to Instacart’s business practices.

The Court finds that the factors articulated in Hendrix weigh in favor of reasonableness of the requested attorneys’ fee award.

Issue No.4: Class Representative Service Enhancements

Plaintiffs request the following class representative enhancements: (1) $20,000.00 each for Groves and Hammons as well as for Lozano, Hearl, Hayes, and Taylor; (2) $5,000.00 each for Cortez and Pierce; and (3) $1,000.00 for Burks for their service in this litigation.

A named plaintiff in a class action may be entitled to an enhancement or incentive award. (Clark v. American Residential Services LLC (2009) 175 Cal.App.4th 785, 806.) “[I]ncentive awards are fairly typical in class action cases.” (In re Cellphone Termination Fee Cases (2010) 186 Cal.App.4th 1380, 1393.) “These awards are discretionary . . . and are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes to recognize their willingness to act as a private attorney general.” (Id. at 1394.) “[C]riteria 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.” (Id. at 1394-1395.) “These incentive awards to class representatives must not be disproportionate to the amount of time and energy expended in pursuit of the lawsuit.” (Id.)

Based on a review of Groves’ declaration, Groves: (1) organized a Shoppers strike; (2) spoke to media outlets; (3) used social media platforms; (4) cumulatively spent about 50 hours in total in connection with talking or corresponding with her attorneys and their staff including preparing for mediation sessions; and (5) she has feared retaliation for participation in this case. Hammons’ declaration states that: (1) she spent about 30 hours working in one form or another on this action; (2) she still works for Instacart and fears retaliation; (3) she participated in a lengthy mediation session with her attorneys; and (4) she spent untold hours talking to her fellow network of Shoppers about their fears and concerns with respect to this case. Taylor declares that: (1) he spent at least 40 hours working to advance this litigation; and (2) he is still on the Instacart platform.

In contrast, the declarations of Hayes, Lozano, and Hearl indicate that they only spent 15 hours each with respect to the litigation. The Court finds that Groves, Taylor, and Hammons took a much more active role with respect to the litigation based on the sheer number of tasks completed and number of hours spent with respect to litigation. The efforts of Hayes, Lozano, and Hearl do not warrant a $20,000.00 class representative enhancement. The Court finds that the efforts of Hayes, Lozano, and Hearl are more in line with the actions of Cortez and Pierce, each of which are requesting a $5,000.00 class representative enhancement and only spent 15 hours with respect to litigation related activities.

The Court finds that a $5,000.00 class representative enhancement award is appropriate as to: (1) Hayes; (2) Lozano; (3) Hearl; (4) Cortez; and (5) Pierce. The Court finds that a $20,000.00 class representative enhancement award is appropriate as to Groves and Hammons. The Court finds that a class representative enhancement award in the amount of $1,000.00 as to Burks is appropriate upon the Court’s review of her declaration.

The Court therefore GRANTS Plaintiffs’ motion for attorneys’ fees, litigation expenses, and class representative service payments pursuant to the limitations on class representative service payments articulated above.

Moving parties are ordered to give notice of this ruling in its entirety.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 2nd day of September 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] lackham is a Plaintiff in this action who signed the settlement agreement at issue in this motion; however, as explained below, he objects to final approval of the settlement agreement.

[2] Blackham was a moving party in connection thereto and is named as a Plaintiff in the FAC in the Groves Action. Taylor was an opposing party in connection with the motion for preliminary approval of class action settlement.

[3] Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116.

[4] This includes Blackham’s objections, among others, that: (1) the Subclass fund of $175,000.00 is unfair and unwarranted; and (2) the opt-out and objection procedures are unduly burdensome. The authority cited by Blackham in support of his argument that there was a hidden agenda behind the non-monetary component of the settlement is not applicable to this action.

[5] In re Apple & AT & TM Antitrust Litigation (N.D. Ill. 2011) 826 F.Supp.2d 1168.

[6] Walnut Producers of California v. Diamond Foods, Inc. (2010) 187 Cal.App.4th 634.

[7] Blackham cites no legal authority in support of this objection.

Case Number: BC695401    Hearing Date: August 19, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

KYRA GROVES, etc., et al.,

Plaintiffs,

vs.

MAPLEBEAR, INC. dba INSTACART,

Defendant.

CASE NO.: BC695401

ORDER RE: MOTION FOR FINAL APPROVAL OF CLASS ACTION SETTLEMENT; MOTION FOR ATTORNEYS’ FEES, COSTS, AND CLASS REPRESENTATIVE SERVICE ENCHANCEMENTS

Date: August 19, 2020

Time: 8:30 a.m.

Dept. 56

The Court has considered the moving, opposition, and reply papers.

On the Court’s own motion, the Court continues the hearing on: (1) the motion for final approval of class action settlement filed by Plaintiffs Kyra Groves, Catherine Hammons, Timothy Pierce, Javier Cortez, and Donna Burks; and (2) the motion for attorneys’ fees, costs, and class representative service enhancements filed by Plaintiffs Kyra Groves, Catherine Hammons, Timothy Pierce, Javier Cortez, and Donna Burks as well as Related Action Plaintiffs Sarah Lozano, Timothy Hearl, Mimi Hayes, and Paul Taylor, both of which are scheduled for 8/19/2020 at 8:30 a.m. at Stanley Mosk Courthouse in Department 56 to 9/2/2020 at 8:30 a.m. in Department 56.

Moving parties are ordered to give notice of this ruling.

Dated this 19th day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court

Case Number: BC695401    Hearing Date: August 12, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

KYRA GROVES, etc., et al.,

Plaintiffs,

vs.

MAPLEBEAR, INC. d/b/a INSTACART,

Defendant.

CASE NO.: BC695401

[TENTATIVE] ORDER RE: MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH DEPOSITION NOTICE

Date: August 12, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff-Objector Seth Blackham (“Blackham”)

RESPONDING PARTIES: Plaintiff Paul Taylor (“Taylor”) and Defendant Maplebear, Inc. dba Instacart (“Instacart”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On February 28, 2018, Plaintiffs filed a complaint for civil penalties under the Private Attorney General Act of 2004 (“PAGA”) arising from Plaintiffs’ employment with Maplebear, Inc. dba Instacart (“Instacart”) in Kyra Groves et al. v. Maplebear, Inc. d/b/a Instacart, case number BC695401 (the “Groves Action”).

On November 8, 2018, Taylor filed a Private Attorneys General Act of 2004 (“PAGA”) Complaint in the case of Paul Taylor v. Maplebear, Inc., case number 18STCV04367 (the “Taylor Action”) for: (1) willful misclassification; (2) failure to pay overtime wages; (3) failure to timely pay wages; (4) failure to pay wages on termination; (5) failure to provide meal breaks; (6) failure to provide an accurate itemized paystub; and (7) failure to provide equipment or reimburse business expenses.

On December 17, 2018, the Court issued a minute order relating the Groves Action and the Taylor Action. The Court’s minute order indicated that the Groves Action was the lead case.

On January 29, 2019, Plaintiffs filed the operative first amended class action and collective action complaint for damages and representative action for civil penalties under PAGA in the Groves Action, arising from the alleged wrongful misclassification of Plaintiffs and other individuals who performed grocery shopping and delivery services in California as independent contractors for Defendant. Plaintiffs’ first amended class action and collective action complaint alleges counts for: (1) failure to pay minimum wage & overtime in violation of the FLSA; (2) expense reimbursement; (3) willful misclassification; (4) minimum wage; (5) overtime; (6) pay statements; (7) failure to pay wages on termination; (8) failure to timely pay wages; (9) unfair business practices; (10) failure to pay wages for meal and rest breaks; (11) conversion; and (12) penalties pursuant to PAGA.

On March 15, 2019, in the Taylor Action, the Court sustained the demurrer of Instacart on the grounds that the exclusive concurrent jurisdiction doctrine applied and stayed the Taylor action pending the resolution of Taylor v. Maplebear, Inc., Los Angeles Superior Court Case No. BC707901 (“Taylor I”). Taylor I is still pending.

On August 28, 2019, in the Groves Action, the Court granted Plaintiffs’ motion for preliminary approval of class action settlement.[1]

On October 22, 2019, in the Groves Action, Blackham filed a notice of substitution of counsel indicating that: (1) he has exercised his right to recuse (substitute out) his prior counsel of Litchten & Liss-Riordan P.C.; and (2) he was substituting in The Tidtrick Law Firm LLP as his counsel. The notice of substitution of counsel also indicated that he objects to the proposed class action settlement and would submit his objections thereto to the administrator pursuant to the procedures set forth in the proposed class action settlement, and he would also file it with the Court.

On November 14, 2019, in the Groves Action, Blackham filed an objection to the class action settlement. Blackham asserts that the class action settlement should not be approved, in part, because: (1) the wrong settlement agreement was provided to settlement class members; (2) the Court was improperly kept in the dark regarding approximately two thousand individual cases against Instacart; (3) Instacart failed to disclose its now apparent hidden agenda behind the timing of the “non-monetary components” of the settlement; and (4) the settlement agreement violates Instacart’s agreement with its Shoppers. On December 4, 2019, Blackham filed a supplemental objection to the class action settlement.

On December 17, 2019, Blackham filed a motion for a protective order. Blackham asserts that on December 3, 2019, Taylor noticed Blackham’s deposition. Blackham asserts that such deposition has been noticed for an improper purpose. Blackham requests that the Court order that his deposition not take place or, in the alternative, that: (1) the deposition be rescheduled for a date when the deponent and counsel for both sides are available after January 14, 2019[2], because the Court’s ruling at the final approval hearing on January 14, 2019 [sic] may narrow or eliminate any relevant issues; (2) the deposition be limited to three hours or less; and (3) the deposition be limited to issues presented in his objections.

On December 18, 2019, Blackham filed a motion for an order quashing the notice of his deposition. Blackham asserts that on December 3, 2019, Taylor noticed Blackham’s deposition. Blackham asserts that such deposition has been noticed for an improper purpose. Blackham requests that the Court order that the notice of deposition be quashed and the deposition be stayed or, in the alternative, that: (1) the deposition be rescheduled for a date when the deponent and counsel for both sides are available after January 14, 2019 [sic], because the Court’s ruling at the final approval hearing on January 14, 2019 [sic] may narrow or eliminate any relevant issues; (2) the deposition be limited to three hours or less; and (3) the deposition be limited to facts underlying his objections.

The hearing for final approval is set for August 19, 2020. Therefore, Blackham’s argument with respect to a January 14, 2019 [sic] hearing date is misplaced.

Taylor opposes Blackham’s motion for a protective order on the grounds that: (1) Blackham’s motion for a protective order must be denied because Blackham has failed to meet and confer; (2) Taylor has agreed to the limitations on the deposition requested by Blackham; and (3) there is no basis to cancel the deposition.

With respect to the motion to quash, Taylor asserts that: (1) Blackham’s motion to quash is meritless; and (2) the Court should order Blackham’s deposition. Taylor asserts additional arguments, unsupported by legal authority, that: (1) a referee is required to ensure the timely deposition of Blackham; and (2) the right to depose Blackham on issues other than his objections must be preserved. The Court finds that such contentions have been waived by Taylor because they are not supported by citations to legal authority. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Instacart filed a statement of non-opposition to Blackham’s respective motions[3]. Instacart asserts that: (1) the deposition notice is improper in view of the pending and preliminarily approved class settlement and Blackham’s agreement to arbitrate his claims against Instacart if final approval of the settlement is not granted; (2) the deposition notice is procedurally defective; and (3) permitting non-party Taylor to take the deposition of Blackham in this litigation would prejudice Instacart.

On July 28, 2020, the Court continued the hearing on the respective motions filed by Blackham due to Blackham failing to provide the Court with a copy of the deposition notice at issue. The Court ordered Blackham to file and serve a copy of the notice of deposition by the close of business on July 31, 2020. Blackham did not file the notice of deposition with the Court by July 31, 2020; however, Blackham did provide the Court with a courtesy copy of the notice of deposition at issue[4]. As such, the notice of deposition is before the Court.

The Court will address both of Blackham’s motions within this one ruling.

MEET AND CONFER

The meet and confer requirement has been met.

MOTION FOR A PROTECTIVE ORDER

“Generally, a deponent seeking a protective order will be required to show that the burden, expense, or intrusiveness involved . . . clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” (Emerson Electric Co. v. Superior Court (1997) 16 Cal.4th 1101, 1110.) “[T]he burden is on the party seeking the protective order to show good cause for whatever order is sought.” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 318.) “In law and motion practice, factual evidence is supplied to the court by way of declarations.” (Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224.)

The Court finds that Blackham has not established a basis for the Court to issue a protective order in connection with his deposition. Neither the declaration of Blackham’s counsel in connection with the moving or reply papers states facts showing that the burden, expense, or intrusiveness with respect to the deposition outweighs the likelihood of the discovery of admissible evidence. Blackham has only presented mere argument and not facts to warrant the issuance of a protective order. Blackham has failed to show good cause.

Therefore, the Court DENIES Blackham’s motion for a protective order.

The Court will now address Blackham’s motion to quash the notice of deposition.

MOTION TO QUASH

California Code of Civil Procedure, Section 2017.020 provides that “[t]he court shall limit the scope of discovery if it determines that the burden, expense, or intrusiveness of that discovery clearly outweighs the likelihood that the information sought will lead to the discovery of admissible evidence.” California Code of Civil Procedure, Section 2025.410(c) provides that “a party may . . . move for an order staying the taking of the deposition and quashing the deposition notice.” California Code of Civil Procedure, Section 2017.010 provides that “any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”

Issue No.1: Procedural Defects in the Notice of Deposition

Instacart contends that the notice of deposition is procedurally improper. Instacart contends that: (1) Taylor is a non-party to the Groves Action and as such may not obtain discovery through a noticed oral deposition; and (2) to the extent that Taylor is relying on the Taylor Action as a justification for the notice of deposition, the Taylor Action is currently stayed for all purposes.

California Rules of Court, Rule 3.515(h) provides that “a stay order suspends all proceedings in the action to which it applies. A stay order may be limited by its terms to specified proceedings, orders, motions, or other phases of the action to which the order applies.” California Code of Civil Procedure, Section 2025.010 provides that “[a]ny party may obtain discovery . . . by taking in California the oral deposition of any person, including any party to the action. The person deposed may be a natural person.” “In civil litigation, discovery may be obtained from a nonparty only through a deposition subpoena.” (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 127.) “Any party served with a deposition notice that does not comply with Article 2 (commencing with Section 2025.210) waives any error or irregularity unless that party promptly serves a written objection specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled.” (Code Civ. Proc. § 2025.410(a).)

Although the Groves Action and the Taylor Action have been related, Taylor is not a party to the Groves Action. The Groves Action is the lead case. The Court finds that Taylor’s argument that Blackham waived all errors or irregularities in the notice of deposition because Blackham did not object to the error in the deposition notice within three calendar days of such deposition is misplaced. Blackham is arguing that the deposition notice is defective under Chapter 9, Article 1. (Motion at 4:5-6.) California Code of Civil Procedure, Section 2025.010—under which Blackham asserts that the deposition notice is improper—is in Chapter 9, Article 1 of the Civil Discovery Act. Therefore, Blackham’s objections are not within the scope of Section 2025.410(a).

Instacart did object to the notice of deposition and did so pursuant to an extended deadline which allowed Instacart to serve objections to the notice of deposition by December 17, 2019. (Tidrick Decl. at Exhibit B.) Instacart’s objections were filed and served on December 17, 2019. Instacart indicated that the notice of deposition was procedurally invalid. (Id., Exhibit B at ¶ 1.) Given that Taylor is technically not party to the Groves Action—and the Groves Action is the lead case—Taylor should have served a deposition subpoena. Thus, the deposition notice is not in the proper form. Taylor’s opposition to Blackham’s motion to quash does not reference the objections served by Instacart.

Therefore, the Court finds that the notice of deposition is procedurally improper.

While not necessary to address, the Court will now address the alleged improper purpose for the deposition.

Issue No.2: Improper Purpose

Blackham contends that his deposition has been noticed for an improper purpose. Taylor asserts that the Court should order the deposition of Blackham because it is not clear via his objections what he seeks.

In the context of a class action settlement, a court will limit discovery when such discovery is not necessary to participate in a final class action approval hearing. (Hemphill v. San Diego Ass’n of Realtors, Inc. (2005) 225 F.R.D. 616, 625-626.) “Discovery regarding objections to a settlement agreement may be used to seek information regarding the objector’s standing, the bases for the objections . . . and his relationships with the counsel that may affect the merits of the objection.” (In re Netflix Privacy Litig., Case No. 5:11-CV-00379-EJD, 2013 U.S. Dist. LEXIS 168298 at *6.) “[A]n objector who voluntarily appears in litigation is properly subject to discovery.” (Id.) A court may allow discovery “to provide sufficient information to permit an intelligent evaluation of the terms on which the case is proposed to be settled.” (Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116, 132.)

In connection with the opposition to Blackham’s motion, counsel for Taylor, Allen Graves (“Graves”), provides a declaration. Such declaration, however, does not provide a basis for the need to depose Blackham. The notice of deposition only indicates that Taylor seeks to take the deposition of Blackham. Moreover, evidence indicates that Taylor’s counsel has informed Blackham’s counsel that Taylor is considering litigation against Blackham based on Blackham’s purported blocking of the settlement. (Tidrick Reply Decl. at Exhibit A.) Taylor has provided no evidence for this Court to assess the basis for such deposition. Given that Taylor has indicated the possibility of proceeding with litigation against Blackham, the Court finds that the notice of deposition is likely for an improper purpose.

The Court therefore GRANTS Blackham’s motion to quash the notice of deposition and stays the taking of Blackham’s deposition.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 12th day of August 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Blackham was a moving party in connection thereto and is named as a Plaintiff in the First Amended Class Action and Collective Action Complaint in the Groves Action. Taylor was an opposing party in connection with the motion for preliminary approval of class action settlement.

[2] This is apparently a typographical error and the reference was intended to be for January 14, 2020.

[3] Instacart’s statement of non-opposition was filed and served the same day that Taylor filed his opposition to Blackham’s respective motions. Thus, Taylor did not have an opportunity to respond to Instacart’s arguments raised in its statement of non-opposition.

[4] The December 3, 2019 notice of deposition is attached as Exhibit A to the Second Supplemental Declaration of Steven G. Tidrick in support of Blackham’s motion to quash deposition notice and motion for protective order.

Case Number: BC695401    Hearing Date: July 28, 2020    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

KYRA GROVES, etc., et al.,

Plaintiffs,

vs.

MAPLEBEAR, INC. d/b/a INSTACART

Defendant.

CASE NO.: BC695401

[TENTATIVE] ORDER RE: MOTION FOR PROTECTIVE ORDER; MOTION TO QUASH DEPOSITION NOTICE

Date: July 28, 2020

Time: 8:30 a.m.

Dept. 56

MOVING PARTY: Plaintiff-Objector Seth Blackham (“Blackham”)

RESPONDING PARTIES: Plaintiff Paul Taylor (“Taylor”) and Defendant Maplebear, Inc. dba Instacart (“Instacart”)

The Court has considered the moving, opposition, and reply papers.

BACKGROUND

On February 28, 2018, Plaintiffs filed a complaint for civil penalties under the Private Attorney General Act of 2004 (“PAGA”) arising from Plaintiffs’ employment with Maplebear, Inc. dba Instacart (“Instacart”) in Kyra Groves et al. v. Maplebear, Inc. d/b/a Instacart, case number BC695401 (the “Groves Action”).

On November 8, 2018, Taylor filed a Private Attorney General Complaint in the case of Paul Taylor v. Maplebear, Inc., case number 18STCV04371 (the “Taylor Action”) for: (1) willful misclassification; (2) failure to pay overtime wages; (3) failure to timely pay wages; (4) failure to pay wages on termination; (5) failure to provide meal breaks; (6) failure to provide an accurate itemized paystub; and (7) failure to provide equipment or reimburse business expenses.

On December 17, 2018, the Court issued a minute order relating the Groves Action and the Taylor Action. The Court’s minute order indicated that the Groves Action was the lead case.

On January 29, 2019, Plaintiffs filed the operative first amended class action and collective action complaint for damages and representative action for civil penalties under the Private Attorney General Act of 2004 in the Groves Action, arising from the alleged wrongful misclassification of Plaintiffs and other individuals who performed grocery shopping and delivery services in California as independent contractors for Defendant. Plaintiffs’ first amended class action and collective action complaint alleges counts for: (1) failure to pay minimum wage & overtime in violation of the FLSA; (2) expense reimbursement; (3) willful misclassification; (4) minimum wage; (5) overtime; (6) pay statements; (7) failure to pay wages on termination; (8) failure to timely pay wages; (9) unfair business practices; (10) failure to pay wages for meal and rest breaks; (11) conversion; and (12) penalties pursuant to the California Labor Code Private Attorneys General Act (“PAGA”) of 2004.

On August 28, 2019, in the Groves Action, the Court granted Plaintiffs’ motion for preliminary approval of class action settlement.[1]

On October 22, 2019, in the Groves Action, Blackham filed a notice of substitution of counsel indicating that: (1) he has exercised his right to recuse (substitute out) his prior counsel of Litchten & Liss-Riordan P.C.; and (2) he was substituting in The Tidtrick Law Firm LLP as his counsel. The notice of substitution of counsel also indicated that he objects to the proposed class action settlement and would submit his objections thereto to the administrator pursuant to the procedures set forth in the proposed class action settlement, and he would also file it with the Court.

On November 14, 2019, in the Groves Action, Blackham filed an objection to the class action settlement. Blackham asserts that the class action settlement should not be approved, in part, because: (1) the wrong settlement agreement was provided to settlement class members; (2) the Court was improperly kept in the dark regarding approximately two thousand individual cases against Instacart; (3) Instacart failed to disclose its now apparent hidden agenda behind the timing of the “non-monetary components” of the settlement; and (4) the settlement agreement violates Instacart’s agreement with its Shoppers. On December 4, 2019, Blackham filed a supplemental objection to the class action settlement.

On December 17, 2019, Blackham filed a motion for a protective order. Blackham asserts that on December 3, 2019, Taylor noticed Blackham’s deposition. Blackham asserts that such deposition has been noticed for an improper purpose. Blackham requests that the Court order that his deposition not take place or, in the alternative, that: (1) the deposition be rescheduled for a date when the deponent and counsel for both sides are available after January 14, 2019[2], because the Court’s ruling at the final approval hearing on January 14, 2020 may narrow or eliminate any relevant issues; (2) the deposition be limited to three hours or less; and (3) the deposition be limited to issues presented in his objections.

On December 18, 2019, Blackham filed a motion for an order quashing the notice of his deposition. Blackham asserts that on December 3, 2019, Taylor noticed Blackham’s deposition. Blackham asserts that such deposition has been noticed for an improper purpose. Blackham requests that the Court order that the notice of deposition be quashed and the deposition be stayed or, in the alternative, that: (1) the deposition be rescheduled for a date when the deponent and counsel for both sides are available after January 14, 2020, because the Court’s ruling at the final approval hearing on January 14, 2020 may narrow or eliminate any relevant issues; (2) the deposition be limited to three hours or less; and (3) the deposition be limited to facts underlying his objections.

The hearing for final approval is currently set for August 19, 2020. Therefore, Blackham’s argument with respect to a January 14, 2020 hearing date is misplaced.

Taylor opposes Blackham’s motion for a protective order on the grounds that: (1) Blackham’s motion for a protective order must be denied because Blackham has failed to meet and confer; (2) Taylor has agreed to the limitations on the deposition requested by Blackham; and (3) there is no basis to cancel the deposition.

With respect to the motion to quash, Taylor asserts that: (1) Blackham’s motion to quash is meritless; and (2) the Court should order Blackham’s deposition. Taylor asserts additional arguments, unsupported by legal authority, that: (1) a referee is required to ensure the timely deposition of Blackham; and (2) the right to depose Blackham on issues other than his objections must be preserved. The Court finds that such contentions have been waived by Taylor because they are not supported by citations to legal authority. (Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215.)

Instacart filed a statement of non-opposition to Blackham’s respective motions. Instacart asserts that: (1) the deposition notice is improper in view of the pending and preliminarily approved class settlement and Blackham’s agreement to arbitrate his claims against Instacart if final approval of the settlement is not granted; (2) the deposition notice is procedurally defective;

and (3) permitting non-party Taylor to take the deposition of Blackham in this litigation would prejudice Instacart.

The Court will address both of Blackham’s motions within this one ruling.

Procedural Issue

Initially, the Court finds that neither Blackham’s motion for a protective order nor Blackham’s motion to quash deposition notice attaches the purported deposition notice that was served on Blackham on December 3, 2019. Moreover, Taylor’s opposition fails to attach the purported deposition notice as an exhibit to the declaration of counsel, Allen Graves (“Graves”)[3]. Instacart’s statement of non-opposition also fails to provide the Court with the purported December 3, 2019 notice of deposition served upon Blackham. Blackham’s reply papers also do not provide the Court with the December 3, 2019 deposition notice as an exhibit.

Due to Blackham not providing the Court with a copy of the notice of deposition that was allegedly served on him on December 3, 2019, the Court cannot assess a basis for Blackham’s motion for a protective order or motion to quash. The Court only has mere argument that a notice of deposition was served on December 3, 2019.

Due to the notice of deposition at issue not being before the Court, the Court CONTINUES the hearings on Blackham’s motion to quash and motion for a protective order to Wednesday, August 12, 2020 at 8:30 a.m in this department. Blackham is ordered to file the notice of deposition at issue in connection with the respective motions, and serve such notice of deposition that is at issue on all interested parties, by the close of business on July 31, 2020.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by CourtCall if the parties do not submit on the tentative.  If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Dated this 28th day of July 2020

Hon. Holly J. Fujie

Judge of the Superior Court


[1] Blackham was a moving party in connection thereto and is named as a Plaintiff in the First Amended Class Action and Collective Action Complaint in the Groves Action. Taylor was an opposing party in connection with the motion for preliminary approval of class action settlement.

[2] Although the moving papers refer to January 14, 2019 (a date before the motion was filed), the Court assumes this reference should have been to January 14, 2020) and all other references to the date of the final approval hearing (prior to its continuance) will refer to the corrected date.

[3] Graves declares that his office served Blackham with a notice of deposition on December 18, 2019 (Graves Decl. at ¶ 6.) This statement, however, is contrary to Blackham’s argument that he was served with a notice of deposition on December 3, 2019.