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Case5:12-cv-03255-LHK Document90 Filed07/19/13 Page1 of 36

Bernard James Fitzpatrick (SBN 129056)
[email protected]
Charles Swanston (SBN 181882)
[email protected]
Fitzpatrick Spini & Swanston
555 S. Main Street
Salinas, CA 93901
Telephone: (831) 755-1311
Facsimile:
(831) 755-1319

Patrick Darryn Toole (SBN 190118)
[email protected]
John Patrick Kinsey (SBN 215916)
[email protected]
Wanger Jones Helsley PC
265 E. River Park Circle, Ste. 310
Fresno, CA 93720
Telephone: (559) 233-4800
Facsimile:
(559) 233-9330

Raul Perez (SBN 174687)
[email protected]
Shooka Moallem (SBN 259106)
[email protected]
Capstone Law APC
1840 Century Park East, Ste. 450
Los Angeles, CA 90067
Telephone: (310) 556-4811
Facsimile:
(310) 943-0396

Attorneys for Plaintiff Mayalinda Bernal



MAYALINDA BERNAL, on behalf
of herself and all others similarly
situated,
Plaintiffs,



DAVITA, INC., doing business as
DAVITA SOLEDAD DIALYSIS;
SOLEDAD DIALYSIS CENTER,
LLC doing business as SOLEDAD
DIALYSIS; MARIAH SILVA; and
DOES 1 through 50, inclusive,

Defendants.

vs.





UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

Case No. CV-12-3255 LHK (PSG)

Assigned for All Purposes to the
Honorable Lucy H. Koh

NOTICE OF MOTION AND
MOTION FOR PRELIMINARY
APPROVAL OF CLASS ACTION
SETTLEMENT; MEMORANDUM
OF POINTS AND AUTHORITIES

Date:
Time:
Place:



September 5, 2013
1:30 p.m.
Courtroom 8

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT





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TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF
RECORD:

PLEASE TAKE NOTICE that on September 5, 2013 at 1:30 p.m., or as
soon thereafter as counsel may be heard, in Courtroom 8 of the above-captioned
court, located at 280 South 1st Street, San Jose, CA 95113, the Honorable Lucy
H. Koh presiding, Plaintiff Mayalinda Bernal will, and hereby does, move this
Court to:
1.

Preliminarily approve the settlement described in the Joint

Stipulation of Settlement and Release (“Settlement Agreement” or “Agreement”)
and the Notice of Class Action Settlement, attached collectively as Exhibit A to
the Declaration of Patrick D. Toole;

2.
3.

Conditionally certify the Settlement Class;
Approve distribution of the proposed Notice of Class Action

Settlement to the Settlement Class;

4.

Appoint Mayalinda Bernal and Diabanza Lusakiovo as Class

Representatives;

5.

Appoint Fitzpatrick, Spini & Swanston; Wanger Jones Helsey PC;

and Capstone Law APC as Class Counsel;

Appoint Gilardi & Co., LLC as the Claims Administrator; and
Set a hearing date for final approval of the Settlement.

6.
7.
This Motion is based upon: (1) this Notice of Motion and Motion; (2) the

Memorandum of Points and Authorities in Support of Motion for Preliminary
Approval of Class Action Settlement; (3) the Declaration of Patrick D. Toole; (4)
the Declaration of Bernard James Fitzpatrick; (5) the Declaration of Charles
Swanston; (6) the Declaration of Raul Perez; (7) the Declaration of Mayalinda
Bernal; (8) the Declaration of Diabanza Lusakiovo; (9) the Settlement
Agreement; (10) the Notice of Class Action Settlement; (11) the [Proposed]
Order Granting Preliminary Approval of Class Action Settlement; (12) the





MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case5:12-cv-03255-LHK Document90 Filed07/19/13 Page3 of 36

records, pleadings, and papers filed in this action; and (13) upon such other
documentary and oral evidence or argument as may be presented to the Court at
or prior to the hearing of this Motion.



Dated: July 19, 2013





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Respectfully submitted,
Capstone Law APC


By:
Raul Perez
Shooka Moallem

Bernard James Fitzpatrick
Charles Swanston
Fitzpatrick Spini & Swanston

Patrick Darryn Toole
John Patrick Kinsey
Wanger Jones Helsley PC

Attorneys for Plaintiff Mayalinda
Bernal

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case5:12-cv-03255-LHK Document90 Filed07/19/13 Page4 of 36

TABLE OF CONTENTS


I. 
INTRODUCTION ........................................................................................ 1 
II.  FACTS AND PROCEDURE ........................................................................ 3 
A.  A Brief History of California’s Wage and Hour Laws .......................... 3 
B.  Overview of the Litigation .................................................................... 4 
C.  The Parties Settled the Claims at Mediation ......................................... 6 
D.  The Proposed Settlement Fully Resolves Plaintiff’s Claims ................. 6 
1.  Composition of the Class ............................................................... 6 
2.  Settlement Consideration ............................................................... 6 
3.  Formula for Calculating Settlement Payments ............................... 7 
4.  Release by Class ............................................................................ 7 
III.  ARGUMENT ................................................................................................ 8 

A.  The Proposed Class Action Settlement Should Receive

Preliminary Approval ............................................................................ 8 
1.  Courts Review Class Action Settlements to Ensure That the

Terms Are Fair, Adequate, and Reasonable ................................... 8 

2.  The Settlement Was Reached Through Arm’s-Length

Bargaining ................................................................................... 10 

3.  The Settlement Was Based on Facts Uncovered Through

Investigation, Formal Discovery, and Preparation for
Mediation ..................................................................................... 10 
4.  Counsel Is Experienced In Similar Litigation .............................. 13 
5.  The Settlement Was Achieved After Evaluating the Strengths
of Plaintiffs’ Case and the Risks, Expense, Complexity, and
Likely Duration of Further Litigation .......................................... 13 
B.  The Proposed PAGA Payment Is Reasonable ..................................... 15


MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT

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Case5:12-cv-03255-LHK Document90 Filed07/19/13 Page5 of 36

C.  The Proposed Payments to the Class Representatives Are

Reasonable .......................................................................................... 15 
D.  The Negotiated Attorneys’ Fees and Costs Are Reasonable ............... 17 
E.  Conditional Class Certification Is Appropriate for Settlement

Purposes .............................................................................................. 18 
1.  The Proposed Class Meets the Requirements of Rule 23............. 18 
2.  The Proposed Class Is Sufficiently Numerous and

Ascertainable ............................................................................... 18 

3.  There are Questions of Law and Fact that Are Common to

the Class....................................................................................... 19 

4.  The Putative Class Representatives’ Claims Are Typical of

the Proposed Settlement Class ..................................................... 21 

5.  Plaintiffs and Plaintiffs’ Counsel Will Adequately Represent

the Interests of the Proposed Settlement Class ............................ 22 
6.  Common Issues Predominate Over Individual Issues .................. 23 
7.  Class Settlement Is Superior to Other Available Means of

Resolution .................................................................................... 25 

F.  The Proposed Class Notice Adequately Informs Class Members

About The Case And Proposed Settlement ......................................... 25 
IV.  CONCLUSION ........................................................................................... 27 




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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

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TABLE OF AUTHORITIES



FEDERAL CASES 
Amchem Prods. v. Windsor, 521 U.S. 591 (1997) .............................................. 18
Armstrong v. Davis, 275 F.3d 849 (9th Cir. 2001) ............................................. 22
Bogosian v. Gulf Oil Corp., 621 F. Supp. 27 (E.D. Pa. 1985) ............................ 16
Churchill Village, LLC v. Gen. Elec., 361 F.3d 566 (9th Cir. 2004) .................... 9
Consolidated Rail Corp. v. Town of Hyde Park,
47 F.3d 473 (2d Cir. 1995) .............................................................................. 18
Eisen v. Carlisle & Jacqueline,
417 U.S. 156 (1974) ........................................................................................ 26
Estrella v. Freedom Fin’l Network,
2010 U.S. Dist. LEXIS 61236 (N.D. Cal. 2010) ............................................. 19
Franklin v. Kaypro, 884 F.2d 1222 (9th Cir. 1989).............................................. 9
Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) .......................... passim
Helfand v. Gerson, 105 F.3d 530 (9th Cir. 1997) ............................................... 17
Hopson v. Hanesbrands Inc., No. CV-08-0844 EDL,
2009 U.S. Dist. LEXIS 33900 (N.D. Cal. Apr. 3, 2009) ................................. 15
Ikonen v. Hartz Mountain Corp., 122 F.R.D. 258 (S.D. Cal. 1998) ................... 18
In Re Janney Montgomery Scott LLC Financial Consultant Litig.,

Case No. 06-3202,

2009 U.S. Dist. LEXIS 60790 (E.D. Pa. July 16, 2009) ................................. 16
In re Larry’s Apartment, L.L.C., 249 F.3d 832 (9th Cir. 2001) .......................... 17
In re Netflix Privacy Litig., No. 5:11-CV-00379-EJD,
2013 U.S. Dist. LEXIS 37286 (N.D. Cal. Mar. 18, 2013) .............................. 10
Krzesniak v. Cendant Corp., No. C 05-05156 MEJ, 2007 U.S. Dist.

LEXIS 47518 (N.D. Cal. June 20, 2007) ........................................................ 19
Lane v. Facebook, Inc., 696 F.3d 811 (9th Cir. 2012) .......................................... 8





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Lozano v. AT&T Wireless Services, Inc., 504 F.3d 718 (9th Cir.

2007) ............................................................................................................... 22

Mangold v. California Public Utilities Commission, 67 F.3d 1470

(9th Cir. 1995) ................................................................................................ 17
Marisol v. Giuliani, 126 F.3d 372 (2nd Cir. 1997) ............................................. 22
Molski v. Gleich, 318 F.3d 937 (9th Cir. 2003) .................................................... 9
Nat’l Rural Telecom. Coop. v. DIRECTV, Inc., 221 F.R.D. 523 (C.D.

Cal. 2004) ......................................................................................................... 9

Officers for Justice v. Civil Serv. Comm’n, 688 F.2d 615 (9th Cir.

1982) ............................................................................................................... 13
Rodriguez v. Hayes, 591 F.3d 1105 (9th Cir. 2010) ........................................... 21
Rodriguez v. West Pub. Corp., 463 F.3d 948 (9th Cir. 2009) ....................... 13, 16
Stanton v. Boeing Company, 327 F.3d 938 (9th Cir. 2003) .............................. 8, 9
Stevens v. Safeway, Inc., Case No. 05-01988, 2008 U.S. Dist. LEXIS

17119 (C.D. Cal. Feb. 25, 2008) ..................................................................... 16

Swanson v. American Consumer Industries, 415 F.2d 1326 (7th Cir.

1969) ............................................................................................................... 18
Torrisi v. Tuscson Elec. Power Co., 8 F.3d 1370 (9th Cir. 1993) ........................ 9
Van Vranken v. Atl. Richfield Co., 901 F. Supp. 294 (N.D. Cal. 1995) .............. 16
Vasquez v. Coast Valley Roofing, Inc., 670 F. Supp. 2d 1114 (E.D.

Cal. 2009) ....................................................................................................... 18
Wolin v. Jaguar Land Rover N. Am., 617 F.3d 1168 (9th Cir. 2010) ................. 25

STATE CASES 
Bell v. Farmers Ins. Exchange, 115 Cal. App. 4th 715 (2004) ........................... 16
Cellphone Termination Fee Cases, 186 Cal. App. 4th 1380 (2010) ................... 16
Nordstrom Com. Cases, 186 Cal. App. 4th 576 (2010) ...................................... 15






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MOTION FOR PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT



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FEDERAL STATUTES 
Fed. R. Civ. P. 23 ......................................................................................... 18, 25
Fed. R. Civ. P. 23(a) ................................................................................ 18, 19, 22
Fed. R. Civ. P. 23(a)(1) ...................................................................................... 18
Fed. R. Civ. P. 23(a)(2) ...................................................................................... 19
Fed. R. Civ. P. 23(a)(4) ...................................................................................... 22
Fed. R. Civ. P. 23(b)(3) ...................................................................................... 18
Fed. R. Civ. P. 23(c)(2) ................................................................................ 26, 27
Fed. R. Civ. P. 23(e) ............................................................................................. 8
Fed. R. Civ. P. 23(e)(1) ........................................................................................ 9
Fed. R. Civ. P. 23(e)(1)(A) ................................................................................... 8
Fed. R. Civ. Proc. 23 ............................................................................................ 5

STATE STATUTES 
Cal. Lab. Code § 201 .................................................................................... 14, 15
Cal. Lab. Code § 201.3 ....................................................................................... 15
Cal. Lab. Code § 201.5 ....................................................................................... 15
Cal. Lab. Code § 202 .................................................................................... 14, 15
Cal. Lab. Code § 203 .................................................................................... 14, 15
Cal. Lab. Code § 205.5 ....................................................................................... 15
Cal. Lab. Code § 226 .......................................................................................... 14
Cal. Lab. Code § 226(a) ..................................................................................... 14
Cal. Lab. Code § 226(e) ..................................................................................... 14
Cal. Lab. Code § 2698 et seq. (Priv. Atty's. Gen. Act (PAGA)) .................. 15, 26

SECONDARY AUTHORITIES 
3 Conte & Newberg, Newberg on Class Actions (4th ed. 2002) ................. passim
Manual for Complex Litigation (4th ed. 2004) ........................................... passim





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MEMORANDUM OF POINTS AND AUTHORITIES

I.

INTRODUCTION
Plaintiff Mayalinda Bernal seeks preliminary approval of the Joint
Stipulation of Settlement and Release,1 which, if approved, would provide
significant monetary relief for approximately 4870 current and former employees
of Defendants DaVita Inc., Soledad Dialysis Center, LLC,2 and Mariah Silva.3

The basic terms of the Settlement provide for the following:
(1) A Settlement Class defined as: All persons employed by

Defendants in California in the position of Patient Care Technician
or Reuse Technician at any time between April 6, 2008 until
Preliminary Approval of the Settlement by the Court.

(2) A Gross Settlement Amount of $3,400,000. The Gross Settlement

Amount includes:
(a) A $2,109,917 Net Settlement Amount (the Gross Settlement
Amount minus attorneys’ fees and costs, the PAGA payment,
Settlement Administration Costs, and the Class
Representative Enhancement Payment) which will be
allocated to participating Class Members on a pro-rata basis
according to the number of weeks each Class Member worked
during the Class Period and status as either a current or


1 Hereinafter “Settlement” or “Settlement Agreement.” Unless indicated


otherwise, all capitalized terms used herein have the same meanings as those
defined by the Settlement Agreement.

2 Including Soledad Dialysis Center, LLC’s parent companies and,

successors (including DaVita HealthCare Partners Inc.), predecessors, related
and affiliated entities (including DVA Renal Healthcare, Inc., DVA Healthcare
Renal Care, Inc., and Total Renal Care, Inc.), and their attorneys.

3 Hereinafter, “DaVita” or “Defendants.” Defendant and Plaintiff are

collectively referred to as the “Parties.”





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former employee of Defendants.4 Because the Gross
Settlement Amount is non-reversionary, 100% of the Net
Settlement Amount will be paid to Participating Class
Members, and without the need to submit claims for
payment.

(b) Attorneys’ fees and costs of $1,133,333 and $100,000,

respectively, to Fitzpatrick, Spini & Swanston; Wanger Jones
Helsey PC; and Capstone Law APC (collectively, Plaintiff’s
counsel”);

(c) A $3750 payment to the California Labor Workforce
Development Agency (“LWDA”) pursuant to PAGA;

(d) Settlement Administration Costs, currently estimated to be
$40,000, to be paid to the mutually agreed upon class action
claims administrator Gilardi & Co., LLC (“Gilardi”); and

(e) Enhancement Payments of $10,000 to Mayalinda Bernal and
$3000 for Diabanza Lusakiovo for their services on behalf of
the Settlement Class.

An objective evaluation of the Settlement confirms that the relief

negotiated on the Class’ behalf is fair, reasonable, and valuable. The Parties
negotiated the Settlement at arm’s length under the guidance of Michael Loeb, a
highly respected and experienced wage and hour class action mediator, and
provides Class Members relief comparable to that which they might have hoped
to win at trial. The relief offered by the Settlement is impressive when viewed
against the recent difficulties encountered by Plaintiffs pursuing wage and hour
cases. See Brinker Restaurant Corp. v. Super. Ct., 53 Cal. 4th 1004 (2012).


4 Former employees will receive additional compensation in connection


with Plaintiff’s claim for waiting-time penalties.





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Indeed, the proposed relief is arguably superior to the relief that the Class might
have obtained after a successful trial because, by settling now rather than
proceeding to trial, Class Members will not have to wait (possibly years) for
relief, nor will they have to bear the risk of class certification being denied or of
Defendants prevailing at trial.

As discussed below, the proposed Settlement satisfies all criteria for

preliminary settlement approval under California law and falls within the range
of reasonableness. Moreover, the proposed Settlement Class is appropriate for
provisional certification. Accordingly, Plaintiff respectfully requests that this
Court grant preliminary approval of the Settlement Agreement.
II.

FACTS AND PROCEDURE
A. A Brief History of California’s Wage and Hour Laws
About a century ago, the California Legislature took special notice of the
fact that many Californians were working in poor and unhealthy conditions and
were not earning living wages. Recognizing a need to reverse the decline in the
quality of life for California workers, the Legislature created the Industrial
Welfare Commission (“IWC”) and vested it with the authority to police various
industries and to promulgate rules, or wage orders, establishing certain industry-
specific minimums for compensation and working conditions. Martinez v.
Combs, 49 Cal. 4th 35, 57 (2010); see Cal. Const., art. XIV, § 1 (confirming the
Legislature’s authority to establish a commission and grant it legislative and
other powers over such matters). In 1916, the IWC, under its “broad statutory
authority” (Industrial Welfare Com. v. Superior Court 27 Cal.3d 690, 701
(1980)), began issuing these wage orders, specifying minimum requirements for
wages, hours, and working conditions for various California industries. Id. at
700.

The Legislature also enacted statutes to directly regulate wages, hours, and
working conditions. Wage and hour claims are therefore governed today by two





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complementary and at times overlapping authorities: 18 wage orders adopted by
the IWC and the Labor Code enacted by the Legislature. Reynolds v. Bement, 36
Cal. 4th 1075, 1084 (2005); see IWC wage orders Nos. 1-2001 to 17-2001 and
MW-2007 (Cal. Code Regs., tit. 8, §§ 11000–11170).)

Together, the IWC wage orders and the Labor Code ensure that

Californians earn living wages for every hour worked, and that they work in safe
and healthy conditions. Concerning employee health and safety issues in
particular, the IWC wages orders and the Labor Code provide that employees
may be relieved of their duties to rest for ten minutes and to eat for thirty
minutes (see IWC wage order No. 5-2001 (Cal. Code Regs., tit. 8, § 11050) and
Labor Code §§ 226.7, 512). These rest and meal period requirements “have long
been viewed as part of the remedial worker protection framework.” Murphy v.
Kenneth Cole Productions, Inc., 40 Cal.4th 1094, 1105 (2007). The right to rest
and to eat, as well as other worker rights established by the IWC wage orders
and Labor Code, are the subject of this litigation and settlement.

B. Overview of the Litigation
DaVita is the dialysis division of DaVita HealthCare Partners Inc., that,

through its operating divisions, provides a variety of health care services to
patient populations throughout the United States and abroad. One of the major
providers of kidney care in the United States, DaVita delivers dialysis services to
patients with chronic kidney failure and end stage renal disease. As of March
31, 2013, DaVita operated or provided administrative services at 1991 outpatient
dialysis centers located in the United States serving approximately 156,000
patients. The company also operated 41 outpatient dialysis centers located in
five countries outside the United States. DaVita owns and operates
approximately 270 kidney dialysis treatment facilities throughout the State of
California.

Plaintiff Mayalinda Bernal worked for DaVita as a Reuse Technician from





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February 2008 through March 2011, thereafter as a Patient Care Technician
through the end of her employment, primarily in the facility located in Soledad,
California. Bernal brought a class and representative action under PAGA on the
grounds that Defendants allegedly: (1) failed to pay overtime in violation of
Labor Code sections 510 and 1194; (2) failed to pay meal and rest period
premiums in violation of sections 226.7 and 512(a); (3) unlawfully withheld
wages in violation of section 216; (4) failed to reimburse for necessary business-
related expenses in violation of sections 2802 and 2804; (5) failed to timely pay
wages during employment in violation of section 204; (6) failed to provide
compliant wage statements in violation of section 226(a); and by virtue of the
proceeding (7) engaged in unfair business practices in violation of Business &
Professions Code sections 17200, et seq.

Following extensive investigation into the claims, Bernal moved for class
certification pursuant to Rule 23 on April 15, 2013. (Dkt. No. 40.) The motion
was based on the allegations that (1) DaVita’s rest period policy did not
authorize rest periods for “major fractions” of four hour work period and (2) both
DaVita’s meal period policy and defective form waiver deprived employees of
their second meal periods.5 While the motion was pending, the Parties entered
into settlement negotiations at mediation. After finalizing the terms of the
Settlement, Bernal withdrew her motion on May 28, 2013.



5 Bernal sought to certify three subclass defined as: (1) all current and
former non-exempt employees of DaVita who were paid an hourly wage and
who worked for Defendants in California as Re-Use Technicians and/or Patient
Care Technicians during the Class Period (“Unpaid Wages Worker Subclass”);
(2) all current and former non-exempt employees of DaVita who worked in
California as Re-Use Technicians and/or Patient Care Technicians and received a
wage statement during the Class Period (“Non-Compliant Wage Statement
Subclass”); and (3) all employees of DaVita who were paid an hourly wage, who
worked for Defendants in California as Re-Use Technicians and/or Patient Care
Technicians and whose employment with Defendants was voluntarily or
involuntarily terminated during the Class Period (“Unpaid Wages Former
Employee Subclass”).





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C. The Parties Settled the Claims at Mediation
After the exchange of relevant information and evidence, the Parties
agreed to enter into private mediation to attempt to resolve the claims in the
Action. (Declaration of Patrick D. Toole [“Toole Decl.”] ¶ 13.) On May 20,
2013, the Parties participated in mediation with Michael Loeb in San Francisco,
a respected mediator of wage-and-hour class actions. (Id.) Mr. Loeb helped to
manage the Parties’ expectations and provided a useful, neutral analysis of the
issues and risks to both sides. (Id.) Following arm’s-length negotiations, the
Parties were eventually able to reach a compromise of the Action. (Id.) That
compromise is set forth in complete and final form in the Settlement Agreement.
(Id.) At all times, the Parties’ negotiations were adversarial and non-collusive.
(Id.) The Settlement therefore constitutes a fair, adequate, and reasonable
compromise of the claims at issue.

D. The Proposed Settlement Fully Resolves Plaintiff’s Claims

1.

Composition of the Class

The proposed Settlement Class consists of all persons employed by

Defendants in California in the position of Patient Care Technician or Reuse
Technician at any time between April 6, 2008 until Preliminary Approval of the
Settlement by the Court. (Settlement Agreement ¶ 2.6.) There are
approximately 4870 Settlement Class Members. (Id. at ¶ 2.8.)

2.

Settlement Consideration

Plaintiff and Defendants have agreed to settle the underlying class claims

in exchange for the Gross Settlement Amount of $3,400,000. (Settlement
Agreement ¶ 2.21.) The Gross Settlement Amount includes: (1) settlement
payments to participating Class Members; (2) attorneys’ fees and costs in the
amounts of $1,133,333 and $100,000, respectively, to Plaintiff’s counsel; (3) a
$3750 payment to the California LWDA; (4) Settlement Administration Costs
currently estimated at $40,000; and (5) Enhancement Payments to Mayalinda





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Bernal in the amount of $10,000 and Diabanza Lusakiovo in the amount of
$3000. (Id. at ¶¶ 2.18, 2.25, 2.35, and 6.6.)

Subject to the Court’s approval of attorneys’ fees and costs to Class

Counsel, the PAGA Payment, Settlement Administration Costs, and
Enhancement Payments, the Net Settlement Amount will be available for
distribution to Class Members according to the formula below.

3.

Formula for Calculating Settlement Payments

The entire Net Settlement Amount will be divided among the participating

Class Members as follows. Each Class Member’s Claim Amount shall be
determined by a point system, whereby each Class Member is awarded one (1)
point for each workweek of active employment worked during the Class Period,
with an additional ten (10) points awarded to each terminated employee.6
(Settlement Agreement ¶ 6.10.1.) For purposes of determining the amount of
points for each Class Member, the termination date shall be based on termination
status as of May 20, 2013. (Id.) Because the Gross Settlement Amount is non-
reversionary, 100% of the Net Settlement Amount will be paid to Participating
Class Members, and without the need to submit claims for payment. (Settlement
Agreement ¶ 2.22.)

4.

Release by Class

Contingent upon full and final payment by Defendants of the Gross

Settlement Amount, each Class Member will be deemed to have fully, finally,


6 Each Class Member’s points will then be divided by the total number of


points for all Class Members, and the resulting fraction then multiplied by the
Net Settlement Amount. (Settlement Agreement ¶ 6.10.) Workweeks shall be
defined as the total length of service as a non-exempt hourly Patient Care
Technician or Reuse Technician in California (measured in days) of Defendants
divided by seven. Active employment shall be defined as any workweek in
which a Class Member reported hours worked on behalf of Defendants. (Id.)
The calculation of a Class Member’s workweeks and a determination as to
whether a Class Member was actively employed in a particular workweek shall
be construed from Defendants’ records. (Id.)





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and forever released the Releases from all Released Claims. (Settlement
Agreement ¶ 2.32.)
III. ARGUMENT

A. The Proposed Class Action Settlement Should Receive

Preliminary Approval
1.

Courts Review Class Action Settlements to Ensure That
the Terms Are Fair, Adequate, and Reasonable

Class action settlements must be approved by the court and notice of the

settlement must be provided to the class before the action can be dismissed. Fed.
R. Civ. P. 23(e)(1)(A). To protect absent class members’ due process rights,
approval of class action settlements involves three steps:

1.

Preliminary approval of the proposed settlement, including (if the

class has not already been certified) conditional certification of the class for
settlement purposes;

2.

Notice to the class providing them an opportunity to exclude

themselves; and

3.

A final fairness hearing concerning the fairness, adequacy, and
reasonableness of the settlement. See Fed. R. Civ. P. 23(e)(2); Manual for
Complex Litigation § 21.632 (4th ed. 2004).

At preliminary approval, the Court first determines whether a class exists.
Stanton v. Boeing Company, 327 F.3d 938, 952 (9th Cir. 2003). Then, the Court
evaluates whether the settlement is within the “range of reasonableness,” and
whether notice to the class and the scheduling of a final approval hearing should
be ordered. See, generally, 3 Conte & Newberg, Newberg on Class Actions,
section 7.20 (4th ed. 2002) § 11.25. “Whether a settlement is fundamentally fair
within the meaning of Rule 23(e) is different from the question whether the
settlement is perfect in the estimation of the reviewing court.” Lane v.
Facebook, Inc., 696 F.3d 811, 819 (9th Cir. 2012).





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The law favors the compromise and settlement of class action suits. See

Churchill Village, LLC v. Gen. Elec., 361 F.3d 566, 576 (9th Cir. 2004); see also
Hanlon v. Chrysler Corp., 150 F.3d 1011, 1027 (9th Cir. 1998) (endorsing the
trial court’s “proper deference to the private consensual decision of the parties”
when approving a settlement). “Litigation settlements offer parties and their
counsel relief from the burdens and uncertainties inherent in trial. . . . The
economics of litigation are such that pre-trial settlement may be more
advantageous for both sides than expending the time and resources inevitably
consumed in the trial process.” Franklin v. Kaypro, 884 F.2d 1222, 1225 (9th
Cir. 1989). Thus, the Court must determine whether a settlement is “fair,
reasonable, and adequate.” Fed. R. Civ. P. 23(e)(1).

To make this determination at preliminary approval, the Court may

consider some or all of the following factors: the extent of discovery completed,
and the stage of proceedings; the strength of the plaintiff’s case and the risk,
expense, complexity and likely duration of further litigation; the risk of
maintaining class action status throughout trial; the amount offered in settlement;
and the experience and views of counsel. See Stanton, 327 F.3d at 959 (citing
Molski v. Gleich, 318 F.3d 937, 953 (9th Cir. 2003)). “Under certain
circumstances, one factor alone may prove determinative in finding sufficient
grounds for court approval.” Nat’l Rural Telecom. Coop. v. DIRECTV, Inc., 221
F.R.D. 523, 525-526 (C.D. Cal. 2004), citing Torrisi v. Tucson Elec. Power Co.,
8 F.3d 1370, 1376 (9th Cir. 1993).

At the preliminary approval stage, the Court need only review the parties’
proposed settlement to determine whether it is within the permissible “range of
possible judicial approval” and thus, whether the notice to the class and the
scheduling of the formal fairness hearing is appropriate. Newberg, § 11:25.

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2.

The Settlement Was Reached Through Arm’s-Length
Bargaining

The fairness and reasonableness of a settlement agreement is presumed

“where that agreement was the product of non-collusive, arms’ length
negotiations conducted by capable and experienced counsel.” In re Netflix
Privacy Litig., No. 5:11-CV-00379-EJD, 2013 U.S. Dist. LEXIS 37286, *11
(N.D. Cal. Mar. 18, 2013).

The Parties were represented by experienced class action counsel

throughout the negotiations resulting in this Settlement. Bernal was represented
by Fitzpatrick Spini & Swanston, Wanger Jones Helsley PC, and Capstone Law
APC. Plaintiff’s counsel regularly litigate wage and hour claims through
certification and on the merits. Throughout the course of their respective
careers, Plaintiff’s counsel have successfully certified class actions by way of
contested motions, and have achieved final approval of dozens of class action
settlements.

DaVita was represented by Ogletree, Deakins, Nash, Smoak & Stewart,
P.C. (“Ogletree”). Ogletree has a significant wage and hour and employment
law defense practice in California, and has a reputation for providing not only
effective counsel during litigation, but also training and consultation in lieu of
litigation.

3.

The Settlement Was Based on Facts Uncovered Through
Investigation, Formal Discovery, and Preparation for
Mediation

This action has been heavily litigated and investigated. At the outset,
Plaintiff’s counsel served multiple forms of written discovery, and exhausted
their efforts to obtain the requested discovery. For example, Defendants served
their Rule 26 Initial Disclosures on September 24, 2012. Defendants did not
produce time-keeping and payroll date records until November 20, 2012.





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Approximately six months later, Defendants served their First Supplemental
Initial Disclosures on April 18, 2013. Supplemental disclosures were then
served on or about April 4, 11, 18 & 29, 2013 and on May 6 and 7, 2013. On
April 4, 2013, Defendants produced address contact information for 3400
individual putative class members, and all the phone contact information was
provided four days later, on April 8, 2013. (Toole Decl. ¶ 7.)

Plaintiff’s counsel also took multiple depositions of Defendants’ corporate

representatives and employees, and defended the depositions of putative Class
Members. The depositions required Plaintiff’s counsel to travel to:

? Denver, Colorado for the depositions of DaVita’s Vice President of

People Services (March 6, 2013), the interim Vice President of
Recruiting (March 7, 2013), the Director of Global Compensation
(March 12, 2013), and the Director of Employee Relations and
Labor Relations (March 13, 2013);

? Tacoma, Washington for the deposition of the Director of Payroll

(March 19, 2013);

? San Francisco, California for the deposition of the relevant People

Services Manager (February 19, 2013) and the second session of the
interim Vice President of Recruiting’s deposition (March 29, 2013),
and to defend the first session of plaintiff Mayalinda Bernal’s
deposition (October 30, 2012);

? Paso Robles, California to defend the depositions of two potential

members of the putative class (May 17, 2013);

? Sacramento, California to defend the depositions of two putative

class members (May 6, 2013);

? Oakland, California to defend the deposition of another putative

class member (May 6, 2013);

? Los Angeles, California, to defend the deposition of class

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representative Diabanza Lusakiovo (May 6, 2013), to take the
deposition of defense expert Robert Crandall (March 26, 2013), and
to defend the deposition of defense expert Sean Chasworth (March
26, 2013);

? Salinas, California, to take the depositions of two DaVita managers

(February 20 and 21, 2013), and to defend the second deposition
session of plaintiff Mayalinda Bernal (February 21, 2013).

(Id. at ¶ 8.)

Plaintiff’s counsel likewise expended considerable time preparing for the
depositions, and in drafting motions to compel further testimony and document
production in connection with three of the witness depositions. There were also
disputes that arose out of these depositions that required further work by
Plaintiff’s counsel. For example, Plaintiff’s counsel asserts that defense counsel
had raised improper objections. The parties then engaged in efforts to resolve
these discovery disputes, and ultimately Plaintiff’s counsel prepared and filed
multiple motions to compel additional depositions and document production.
(Id. at ¶ 9.)

Plaintiff’s counsel’s certification efforts were equally extensive.

Plaintiff’s counsel obtained and reviewed Defendants’ meal and rest period
policies, the relevant internal operational policies, and collaborated with Class
Members in preparing their declarations in support of the motion for class
certification. (Id. at ¶ 10.)

Based on the forgoing investigation, Plaintiff’s counsel is of the opinion

that this Settlement for the consideration and on the terms set forth in the
Settlement Agreement is fair, reasonable and adequate, and is in the best interest
of the Class in light of all known facts and circumstances, including the risk of
significant delay and uncertainty associated with litigation, various defenses
asserted by Defendants, and potential appellate issues. (Id. at ¶ 12.)





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4.

Counsel Is Experienced In Similar Litigation

The Parties were represented by experienced class action counsel

throughout the negotiations resulting in this Settlement. Plaintiffs are
represented by Fitzpatrick, Spini & Swanston; Wanger Jones Helsey PC; and
Capstone Law APC. Plaintiff’s counsel regularly litigate wage-and-hour claims
through certification and on the merits, and have considerable experience settling
wage and hour class actions. (See generally Declaration of Patrick D. Toole,
Declaration of Bernard James Fitzpatrick, Declaration of Charles Swanston, and
Declaration of Raul Perez).

5.

The Settlement Was Achieved After Evaluating the
Strengths of Plaintiffs’ Case and the Risks, Expense,
Complexity, and Likely Duration of Further Litigation

In assessing the probability and likelihood of success, “the district court’s

determination is nothing more than an amalgam of delicate balancing, gross
approximations, and rough justice.” Officers for Justice v. Civil Serv. Comm’n,
688 F.2d 615, 625 (9th Cir. 1982) (internal quotation marks omitted). There is
“no single formula” to be applied, but the court may presume that the parties’
counsel and the mediator arrived at a reasonable range of settlement by
considering Plaintiff’s likelihood of recovery. Rodriguez v. West Pub. Corp.,
463 F.3d 948, 965 (9th Cir. 2009).

Plaintiff’s counsel were confident that class-wide liability could have

established through common proof. However, Plaintiff’s counsel were cognizant
of the risks of continued litigation, as illustrated by the following cases: Brown
v. Federal Express Corporation, 249 F.R.D. 580, 587-88 (C.D. Cal. 2008)
(denying certification of driver meal and rest period claims based on the
predominance of individual issues); Kenny v. Supercuts, Inc., 252 F.R.D. 641,
645 (N.D. Cal. 2008) (denying certification on meal periods claim); Blackwell v.
Skywest Airlines, Inc., 245 F.R.D. 453, 467-68 (S.D. Cal. 2007) (declining to





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certify class action because individual issues predominated when different
employee stations provided different practices with respect to meal periods);
Chaaban v. Wet Seal, Inc., 2012 Cal. App. Unpub. LEXIS 2560 (Cal. Ct. App.
Apr. 4, 2012) (trial court denied certification of rest break claims where plaintiffs
offered no common method of distinguishing between instances when employees
were not permitted to take breaks); and Lanzarone v. Guardsmark Holdings,
Inc., 2006 U.S. Dist. LEXIS 95785 * 11-13 (C.D. Cal. 2006) (denying motion
for class certification when common questions did not predominate because
varied meal and rest periods policies varied from shift to shift).

Plaintiff’s counsel were equally confident that they could have certified

the rest break claim. However, Plaintiff’s counsel took stock in DaVita’s
contention that its rest break policy was compliant on its face with California
law, as the policy––which was drafted to apply to treatment centers throughout
the United States––provided: “Except as otherwise provided by law, teammates
should be given a ten minute rest period for every four hours worked.”

Plaintiff also alleged that Defendants had a regular practice of providing
employees non-compliant wage statements in violation of Labor Code section
226(a). However, claims for violation of California’s wage statement law (Cal.
Lab. Code § 226(a)) are sometimes vulnerable to attack by summary judgment,
as defendants commonly argued that section 226(e) provides a right of recovery
only for employees “suffering injury” as a result of an employer’s failure to
comply with section 226(a). Specifically, the statute provides that only “[a]n
employee suffering injury as a result of a knowing and intentional failure by an
employer to comply with” the statute may recover damages. Cal. Lab. Code §
226(e) (emphasis added).

Based on the preceding allegations, Plaintiff also alleged that Defendants

failed to pay former employees all wages owed upon termination of employment.
(See Cal. Lab. Code §§ 201-202.) Labor Code section 203(a) prescribes the





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remedy for that alleged failure:

If an employer willfully fails to pay, without abatement or
reduction, in accordance with Sections 201, 201.3, 201.5, 202,
and 205.5, any wages of an employee who is discharged or
who quits, the wages of the employee shall continue as