1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 MARCUS HILL-COLBERT, JENNIFER No. 2:22-cv-1651 WBS SCR TIMMONS, HERMINIO LeBRON, DANIEL 13 REED, VINCENT BARNAO, ERIN McMARLIN, and JAMES THOMPSON, on 14 behalf of themselves and a class MEMORANDUM AND ORDER RE: PLAINTIFFS’ MOTION FOR 15 of similarly situated persons, PRELIMINARY APPROVAL OF CLASS ACTION SETTLEMENT 16 Plaintiffs, 17 v. 18 CITY OF ROSEVILLE, ROSEVILLE POLICE DEPARTMENT, TYLER 19 CANTLEY, and DOES 1-20, 20 Defendants. 21 22 ----oo0oo---- 23 Plaintiffs Marcus Hill-Colbert, Jennifer Timmons, 24 Herminio LeBron, Daniel Reed, Vincent Barnao, Erin McMarlin, and 25 James Thompson (collectively, “plaintiffs”), individually and on 26 behalf of a class of similarly situated individuals, brought this 27 putative class action against municipal government defendants 28 1 City of Roseville (“the City” or “Roseville”), the Roseville 2 Police Department, Roseville Officer Tyler Cantley, and twenty 3 fictitiously named “Does” (collectively, “defendants”) alleging 4 various torts and constitutional rights violations. (See First 5 Am. Compl. (“FAC”) (Docket No. 17).) Before the court is the 6 parties’ joint motion for preliminary approval of a class action 7 settlement. (See Docket No. 40.) 8 I. Background 9 In 2010, the City adopted Roseville Municipal Code 10 § 8.02.316, which allows officers of the Roseville Police 11 Department to exclude individuals from the City’s parks for 12 violating “any applicable ordinance.” (FAC ¶¶ 19-20; see also 13 Docket No. 40-2 Ex. A (same).) Roseville Municipal Code 14 § 8.02.020 defines a “park” as “any park, dog park, town square, 15 library, museum, stream bed area, bicycle trail, open space, or 16 other facility owned or operated by the city for park or 17 recreation purposes.” (FAC ¶ 21; see also Docket No. 40-2 Ex. B 18 (same).) The gravamen of plaintiffs’ claims is that defendants 19 enforced § 8.02.316 against “involuntarily homeless persons 20 without access to shelter,” including themselves, in 21 contravention of federal and state law. (FAC ¶ 22.) 22 Plaintiffs brought federal and state claims for 23 unconstitutional searches and seizures, false imprisonment, 24 violations of due process, cruel and unusual punishment, 25 violations of the Tom Bane Civil Rights Act, invasion of privacy, 26 intentional infliction of emotional distress, and negligence. 27 (See FAC ¶¶ 200-77.) After extensive negotiations involving 28 former Magistrate Judge Kendall J. Newman during his time with 1 the court and after as a private mediator, the parties reached a 2 settlement involving modifications of the City’s municipal code 3 and practices and payments to class members. 4 The putative class consists of “all homeless persons 5 who were excluded from a City of Roseville park facility pursuant 6 to Roseville Municipal code section 8.02.316, but not arrested at 7 the time, within two years before September 20, 2022.” (Docket 8 No. 40-2 Ex. C ¶ 12.) The parties estimate that the putative 9 class has at most 250 members. (Docket No. 40-1 at 3.) 10 The parties propose a gross settlement fund which 11 includes the following: (1) $250 incentive awards for the seven 12 named plaintiffs, for a total of $1,750 in plaintiff incentive 13 awards; (2) a payment of $50 to $1,000 to each class member 14 depending on how long he or she was excluded from Roseville 15 parks; (3) a supplemental payment of $150 to $1,500 to each class 16 member who claims loss of property in connection with that 17 exclusion depending on the lost property’s value; and (4) a 18 “reasonable amount of fees and costs incurred by class counsel to 19 handle the claims administration.” (See Docket No. 40-2 Ex. C at 20 ¶¶ 43-44.) 21 The settlement would also release defendants from any 22 and all class claims that were pled or could have been pled based 23 on the factual allegations in the operative or prior complaints. 24 (See Docket No. 40-2 Ex. C at ¶¶ 30, 63.) A hearing on the 25 instant motion for preliminary approval was set for April 14, 26 2025. (Docket No. 40.) 27 II. Discussion 28 Federal Rule of Civil Procedure 23(e) provides that 1 “the claims, issues, or defenses of a certified class may be 2 settled . . . only with the court’s approval.” Fed. R. Civ. P. 3 23(e) (cleaned up). This Order is the first step in that process 4 and analyzes only whether the proposed class action settlement 5 deserves preliminary approval. See Murillo v. Pac. Gas & Elec. 6 Co., 266 F.R.D. 468, 473 (E.D. Cal. 2010) (Shubb, J.). 7 Preliminary approval authorizes the parties to give notice to 8 putative class members of the settlement agreement and lays the 9 groundwork for a future fairness hearing, at which the court will 10 hear objections to (1) the treatment of this litigation as a 11 class action and (2) the terms of the settlement. See id.; see 12 also Diaz v. Tr. Territory of Pac. Islands, 876 F.2d 1401, 1408 13 (9th Cir. 1989) (same). The court will reach a final 14 determination as to whether the parties should be allowed to 15 settle the class action on their proposed terms after that 16 hearing. 17 Where the parties reach a settlement agreement prior to 18 class certification, the court must first assess whether a class 19 exists. Staton v. Boeing Co., 327 F.3d 938, 952-53 (9th Cir. 20 2003). “Such attention is of vital importance, for a court asked 21 to certify a settlement class will lack the opportunity, present 22 when a case is litigated, to adjust the class, informed by the 23 proceedings as they unfold.” Id. (cleaned up). The parties 24 cannot “agree to certify a class that clearly leaves any one 25 requirement unfulfilled.” Murillo, 266 F.R.D. at 473. 26 Consequently, the court cannot blindly rely on the fact 27 that the parties have stipulated that a class exists for purposes 28 of settlement. See Amchem Prods. Inc. v. Windsor, 521 U.S. 591, 1 621-22 (1997) (“Federal courts, in any case, lack authority to 2 substitute for Rule 23’s certification criteria a standard never 3 adopted -- that if a settlement is ‘fair,’ then certification is 4 proper.”). 5 “Second, the district court must carefully consider 6 ‘whether a proposed settlement is fundamentally fair, adequate, 7 and reasonable,’ recognizing that ‘it is the settlement taken as 8 a whole, rather than the individual component parts, that must be 9 examined for overall fairness . . . .’” Staton, 327 F.3d at 952 10 (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 11 1998), abrogated on other grounds by Wal-Mart Stores, Inc. v. 12 Dukes, 564 U.S. 338 (2011)) (cleaned up). 13 A. Class Certification 14 The putative class consists of “all homeless persons 15 who were excluded from a City of Roseville park facility pursuant 16 to Roseville Municipal code section 8.02.316, but not arrested at 17 the time, within two years before September 20, 2022.” (Docket 18 No. 40-2 Ex. C ¶ 12.) To be certified, the putative class must 19 satisfy the requirements of Federal Rules of Civil Procedure 20 23(a) and 23(b). Leyva v. Medline Indus. Inc., 716 F.3d 510, 512 21 (9th Cir. 2013). 22 1. Rule 23(a) 23 Rule 23(a) restricts class actions to cases where: “(1) 24 the class is so numerous that joinder of all members is 25 impracticable; (2) there are questions of law or fact common to 26 the class; (3) the claims or defenses of the representative 27 parties are typical of the claims or defenses of the class; and 28 (4) the representative parties will fairly and adequately protect 1 the interests of the class.” See Fed. R. Civ. P. 23(a). 2 a. Numerosity 3 “Courts have routinely found the numerosity requirement 4 satisfied when the class comprises 40 or more members.” Collins 5 v. Cargill Meat Sols. Corp., 274 F.R.D. 294, 300 (E.D. Cal. 2011) 6 (Wanger, J.). Here, the parties estimate that the proposed class 7 contains at most 250 members. (See Docket No. 40-1 at 3.) This 8 more than satisfies the numerosity requirement. 9 b. Commonality 10 Commonality requires that the class members’ claims 11 “depend upon a common contention” that is “capable of classwide 12 resolution -- which means that determination of its truth or 13 falsity will resolve an issue that is central to the validity of 14 each one of the claims in one stroke.” Wal-Mart Stores, 564 U.S. 15 at 350. “All questions of fact and law need not be common to 16 satisfy the rule. The existence of shared legal issues with 17 divergent factual predicates is sufficient, as is a common core 18 of salient facts coupled with disparate legal remedies within the 19 class.” Hanlon, 150 F.3d at 1019-20. “So long as there is ‘even 20 a single common question,’ a would-be class can satisfy the 21 commonality requirement of Rule 23(a)(2).” Wang v. Chinese Daily 22 News, Inc., 737 F.3d 538, 544 (9th Cir. 2013) (quoting Wal-Mart 23 Stores, 564 U.S. at 358-59). 24 Here, the claims implicate common questions of law and 25 fact because they are premised on policies and practices that 26 allegedly applied to all class members equally. All class 27 members were “homeless persons who were excluded from a City of 28 Roseville park facility pursuant to Roseville Municipal code 1 section 8.02.316, but not arrested at the time, within two years 2 before September 20, 2022.” (Docket No. 40-2 Ex. C ¶ 12.) As a 3 result, the class members share several common factual questions 4 surrounding the circumstances of their exclusions from Roseville 5 parks as well as several common legal questions concerning 6 whether said policies and practices violated federal and 7 California law. 8 Generally, “challenging a policy common to the class as 9 a whole creates a common question whose answer is apt to drive 10 the resolution of the litigation.” Ontiveros v. Zamora, 11 No. 2:08-cv-567 WBS DAD, 2014 WL 3057506, at *5 (E.D. Cal. July 12 7, 2014) (cleaned up). Even if individual members of the class 13 will be entitled to different amounts of damages because, for 14 instance, they were excluded from Roseville parks for different 15 periods of time or lost different kinds of property after being 16 excluded, “the presence of individual damages cannot, by itself, 17 defeat class certification.” Leyva, 716 F.3d at 514. 18 Accordingly, these common questions of law and fact satisfy the 19 commonality requirement. 20 c. Typicality 21 Typicality requires that named plaintiffs have claims 22 “reasonably co-extensive with those of absent class members,” but 23 their claims do not have to be “substantially identical.” 24 Hanlon, 150 F.3d at 1019-20. The test for typicality “is whether 25 other members have the same or similar injury, whether the action 26 is based on conduct which is not unique to the named plaintiffs, 27 and whether other class members have been injured by the same 28 course of conduct.” Hanon v. Dataproducts Corp., 976 F.2d 497, 1 508 (9th Cir. 1992). 2 Plaintiffs and other class members are all homeless 3 persons who were allegedly subject to the same policies and 4 practices in question, including exclusion from Roseville parks 5 and loss of property in connection with that exclusion. Although 6 the facts might differ for individual class members, the basis 7 for their alleged injuries and the parties purportedly 8 responsible for those injuries are the same. The proposed class 9 therefore meets the typicality requirement. 10 d. Adequacy of Representation 11 To resolve the question of adequacy, the court must 12 consider two factors: (1) whether the named plaintiffs and their 13 counsel have any conflicts of interest with other class members, 14 and (2) whether the named plaintiffs and their counsel will 15 vigorously prosecute the action on behalf of the class. In re 16 Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 566-67 (9th Cir. 17 2019). 18 i. Conflicts of Interest 19 There do not appear to be any conflicts of interest for 20 purposes of preliminary approval. (See Docket No. 40-2 at ¶¶ 9- 21 10.) The named plaintiffs’ interests are generally aligned with 22 those of the putative class members, who suffered injuries 23 similar to those suffered by the named plaintiffs. See Amchem, 24 521 U.S. at 625–26. 25 The settlement provides for $250 incentive awards for 26 the named plaintiffs. (See Docket No. 40-2 Ex. C at ¶¶ 43-44.) 27 While the provision of an incentive award raises the possibility 28 that the named plaintiffs’ interest in receiving that award will 1 cause their interests to diverge from the class’s interest in a 2 fair settlement, the Ninth Circuit has specifically approved the 3 award of “reasonable incentive payments.” Staton, 327 F.3d at 4 977–78. The court, however, must “scrutinize carefully the 5 awards so that they do not undermine the adequacy of the class 6 representatives.” Radcliffe v. Experian Info. Sys., Inc., 715 7 F.3d 1157, 1163 (9th Cir. 2013). 8 Incentive awards “are intended to compensate class 9 representatives for work done on behalf of the class,” and “to 10 make up for financial or reputational risk undertaken in bringing 11 the action.” Rodriguez v. W. Publ’g Corp., 563 F.3d 948, 958-59 12 (9th Cir. 2009). Indeed, the Ninth Circuit has consistently 13 recognized incentive awards are “fairly typical.” Id. In 14 particular, courts have found that even “a $5,000 incentive award 15 is ‘presumptively reasonable’ in the Ninth Circuit.” See Roe v. 16 Frito-Lay, Inc., No. 14-cv-00751, 2017 WL 1315626, at *7-8 (N.D. 17 Cal. Apr. 7, 2017) (quoting Smith v. Am. Greetings Corp., No. 14- 18 cv-02577, 2016 WL 362395, at *10 (N.D. Cal. Jan. 29, 2016)). 19 Here, the incentive awards are $250, placing them well 20 below the upper limit typically deemed reasonable within the 21 Ninth Circuit. Moreover, plaintiffs’ counsel represents that 22 named plaintiffs have expended significant time participating in 23 this case. (See Docket No. 40-2 at ¶¶ 6-8.) The incentive 24 payments thus appear appropriate at this stage. However, counsel 25 should present further evidence of named plaintiffs’ efforts 26 towards receiving incentive awards at final approval. 27 ii. Vigorous Prosecution 28 The second portion of the adequacy inquiry examines the 1 vigor with which the named plaintiffs and their counsel have 2 pursued the class claims. “Although there are no fixed standards 3 by which ‘vigor’ can be assayed, considerations include 4 competency of counsel and, in the context of a settlement-only 5 class, an assessment of the rationale for not pursuing further 6 litigation.” Hanlon, 150 F.3d at 1021. 7 Here, plaintiffs’ counsel appear to be experienced 8 civil rights litigators with class action experience which 9 qualifies them to pursue the interests of the class. (See Docket 10 No. 40-2 at ¶¶ 11-34.) This background, coupled with the work 11 performed thus far, suggest that plaintiffs’ counsel are well- 12 equipped to handle this case. (See id. at ¶¶ 4-8.) Further, 13 plaintiffs’ counsel appear to have conducted thorough factual 14 investigation and legal research, and fully considered the 15 strengths and weaknesses of this case in deciding to accept the 16 terms of the proposed settlement agreement. (See id. at ¶¶ 4- 17 10.) The court finds no reason to doubt that plaintiffs’ counsel 18 is well qualified to conduct the proposed litigation and assess 19 the value of the settlement. Accordingly, the court concludes 20 that Rule 23(a)’s adequacy requirement is satisfied for the 21 purpose of preliminary approval. 22 2. Rule 23(b) 23 After fulfilling the threshold requirements of Rule 24 23(a), the proposed class must satisfy the requirements of one of 25 the three subdivisions of Rule 23(b). Leyva, 716 F.3d at 512. 26 Plaintiffs seek class certification under Rule 23(b)(3), which 27 provides that a class action may be maintained only if (1) “the 28 court finds that questions of law or fact common to class members 1 predominate over questions affecting only individual members” and 2 (2) “that a class action is superior to other available methods 3 for fairly and efficiently adjudicating the controversy.” Fed. 4 R. Civ. P. 23(b)(3).1 5 a. Predominance 6 “The predominance analysis under Rule 23(b)(3) focuses 7 on ‘the relationship between the common and individual issues’ in 8 the case and ‘tests whether proposed classes are sufficiently 9 cohesive to warrant adjudication by representation.’” Wang, 737 10 F.3d at 545 (quoting Hanlon, 150 F.3d at 1022). 11 Here, the claims brought by the proposed settlement 12 class all arise from defendants’ same conduct with respect to 13 policies of exclusion from Roseville parks. The class claims 14 thus demonstrate a “common nucleus of facts and potential legal 15 remedies” that can properly be resolved “in a single 16 adjudication.” See Hanlon, 150 F.3d at 1022-23. Although there 17 are differences in the facts pertaining to individual class 18 members and the amount of injury sustained, such as how long each 19 was excluded from Roseville parks and what property they may have 20 lost in the process, there is no indication that those variations 21 are “sufficiently substantive to predominate over the shared 22 claims.” See Murillo, 266 F.R.D. at 476-77 (quoting Hanlon, 150 23 F.3d at 1022-23). Accordingly, the court finds common questions 24 of law and fact predominate over questions affecting only 25
26 1 Plaintiffs also seek class certification under Rule 23(b)(2) for declaratory and injunctive relief. (See Docket No. 27 40-1 at 12 (quoting Fed. R. Civ. P. 23(b)(2)). However, the court does not reach the issue since it will certify the 28 settlement class under Rule 23(b)(3) instead. 1 individual class members. 2 b. Superiority 3 Rule 23(b)(3) sets forth four non-exhaustive factors 4 that courts should consider when examining whether “a class 5 action is superior to other available methods for fairly and 6 efficiently adjudicating the controversy.” Fed. R. Civ. P. 7 23(b)(3). They are: “(A) the class members’ interests in 8 individually controlling the prosecution or defense of separate 9 actions; (B) the extent and nature of any litigation concerning 10 the controversy already begun by or against class members; (C) 11 the desirability or undesirability of concentrating the 12 litigation of the claims in the particular forum; and (D) the 13 likely difficulties in managing a class action.” Id. The 14 parties settled this action prior to certification, making 15 factors (C) and (D) inapplicable. See Murillo, 266 F.R.D. at 16 477. 17 Rule 23(b)(3) is concerned with the “vindication of the 18 rights of groups of people who individually would be without 19 effective strength to bring their opponents into court.” Amchem, 20 521 U.S. at 616-17. When, as here, class members’ individual 21 recovery is relatively modest, the class members’ interests 22 generally favor certification. Zinser v. Accufix Res. Inst., 23 Inc., 253 F.3d 1180, 1190-91 (9th Cir. 2001). Further, most if 24 not all class members appear to be indigent and without the means 25 to bring lawsuits on their own. See Kincaid v. City of Fresno, 26 244 F.R.D. 597, 606-07 (E.D. Cal. 2007) (Wanger, J.). 27 Accordingly, the class action device appears to be the superior 28 method for adjudicating this controversy. 1 3. Rule 23(c)(2) Notice Requirements 2 If the court certifies a class under Rule 23(b)(3), it 3 “must direct to class members the best notice that is practicable 4 under the circumstances, including individual notice to all 5 members who can be identified through reasonable effort.” Fed. 6 R. Civ. P. 23(c)(2)(B). Rule 23(c)(2) governs both the form and 7 content of a proposed notice. See Ravens v. Iftikar, 174 F.R.D. 8 651, 657-58 (N.D. Cal. 1997) (citing Eisen v. Carlisle & 9 Jacquelin, 417 U.S. 156, 172–77 (1974)). Although that notice 10 must be “reasonably certain to inform the absent members of the 11 plaintiff class,” actual notice is not required. Silber v. 12 Mabon, 18 F.3d 1449, 1454-55 (9th Cir. 1994). 13 Parties’ counsel has provided the court with a proposed 14 notice to class members. (See Docket No. 40-2 Ex. C Attach. 2.) 15 It explains the proceedings, defines the scope of the class, and 16 explains what the settlement provides and how much each class 17 member can expect to receive in compensation. (See id. at 1-3.) 18 The notice further explains the opt-out procedure, the procedure 19 for objecting to the settlement, and the date and location of the 20 final approval hearing. (See id. at 4-6.) 21 The content of the proposed notice therefore satisfies 22 Rule 23(c)(2)(B). See Churchill Vill., L.L.C. v. Gen. Elec., 361 23 F.3d 566, 575 (9th Cir. 2004) (“Notice is satisfactory if it 24 ‘generally describes the terms of the settlement in sufficient 25 detail to alert those with adverse viewpoints to investigate and 26 to come forward and be heard.’” (quoting Mendoza v. Tucson Sch. 27 Dist. No. 1, 623 F.2d 1338, 1352 (9th Cir. 1980), abrogated on 28 other grounds by Evans v. Jeff D., 475 U.S. 717, 725-26 n.10 1 (1986))). 2 As for how notice will be provided to class members, 3 the parties provide that “the class notice and claim form will be 4 mailed, posted, or personally delivered to potential class member 5 at the last known address or at service providers at which class 6 members traditionally receive service.” (Docket No. 40-1 at 8 7 (cleaned up).) Of course, because plaintiffs are homeless, they 8 may lack mailing addresses. As a result, the court cautions that 9 a notice sent via conventional means, such as mail, is unlikely 10 to suffice. See Roes 1-2 v. SFBSC Mgmt., LLC, 944 F.3d 1035, 11 1045–46 (9th Cir. 2019). The court thus advises that class 12 counsel undertake additional measures “reasonably calculated, 13 under all the circumstances,” to apprise all class members of the 14 proposed settlement. See id. at 1046-47. 15 Given these considerations, the court will grant the 16 parties’ notice plan preliminary approval, notwithstanding its 17 concerns about the parties’ notice plan as set forth in the 18 motion for preliminary approval. 19 B. Preliminary Settlement Approval 20 After determining that the proposed class satisfies the 21 requirements of Rule 23(a) and (b), the court must determine 22 whether the terms of the parties’ settlement appear “fair, 23 adequate, and reasonable.” See Hanlon, 150 F.3d at 1025-26 24 (citing Fed. R. Civ. P. 23(e)(2)). This process requires the 25 court to “balance a number of factors,” including “the strength 26 of the plaintiffs’ case; the risk, expense, complexity, and 27 likely duration of further litigation; the risk of maintaining 28 class action status throughout the trial; the amount offered in 1 settlement; the extent of discovery completed and the stage of 2 the proceedings; the experience and views of counsel; the 3 presence of a governmental participant; and the reaction of the 4 class members to the proposed settlement.” Id. at 1026 (cleaned 5 up). 6 Because some of these factors cannot be considered 7 until the final fairness hearing, at the preliminary approval 8 stage, “the court need only determine whether the proposed 9 settlement is within the range of possible approval.” See 10 Murillo, 266 F.R.D. at 479. In other words, the court must 11 resolve any “glaring deficiencies” in the settlement agreement 12 before authorizing notice to class members. See Ontiveros, 2014 13 WL 3057506, at *11-12. This analysis requires consideration of 14 “whether the proposed settlement discloses grounds to doubt its 15 fairness or other obvious deficiencies, such as unduly 16 preferential treatment of class representatives or segments of 17 the class, or excessive compensation of attorneys.” Murillo, 266 18 F.R.D. at 479. Courts often begin by examining the process that 19 led to the settlement’s terms to ensure that those terms are “the 20 result of vigorous, arms-length bargaining” and then turn to the 21 substantive terms of the agreement. See id. at 479-80. 22 1. Negotiation of the Settlement Agreement 23 On September 20, 2022, plaintiffs initiated this action 24 and moved for a preliminary injunction. (See Docket Nos. 1, 4.) 25 On November 1, 2022, the court denied plaintiffs’ motion for a 26 preliminary injunction. (Docket No. 16.) Plaintiffs amended the 27 complaint the next day. (Docket No. 17.) On July 20, 2023, the 28 parties stipulated to a settlement conference, which the court 1 approved within a day. (See Docket Nos. 24-25.) The parties 2 thereafter engaged in months of settlement discussions as well as 3 “extensive investigation and discovery” from August 29, 2023 to 4 January 6, 2025. (See Docket No. 40-2 at ¶¶ 5-8; see also Docket 5 No. 40-1 at 6.) Counsel represents that the parties engaged in 6 thorough informal discovery and discussion during and prior to 7 settlement negotiations, which were adversarial and conducted at 8 arms-length. (See Docket No. 40-1 at 6.) 9 Given the parties’ representation that the settlement 10 reached was the product of arms-length bargaining following 11 thorough informal discovery, the court at this stage does not 12 question that the proposed settlement is the result of informed 13 and non-collusive negotiations between the parties. See La Fleur 14 v. Med. Mgmt. Int’l, Inc., No. 13-cv-00398, 2014 WL 2967475, at 15 *4-5 (C.D. Cal. June 25, 2014). 16 2. Amount Recovered and Distribution 17 In determining whether a settlement agreement is 18 substantively fair to the class, the court must balance the value 19 of expected recovery against the value of the settlement offer. 20 See Ontiveros, 2014 WL 3057506, at *14. This inquiry may involve 21 consideration of the uncertainty class members would face if the 22 case were litigated to trial. 23 “In determining whether the amount offered in 24 settlement is fair, the Ninth Circuit has suggested that the 25 Court compare the settlement amount to the parties’ ‘estimates of 26 the maximum amount of damages recoverable in a successful 27 litigation.’” Litty v. Merrill Lynch & Co., No. CV 14-0425, 2015 28 WL 4698475, at *8-9 (C.D. Cal. Apr. 27, 2015) (quoting Glass v. 1 UBS Fin. Servs., Inc., No. C-06-4068, 2007 WL 221862, at *4 (N.D. 2 Cal. Jan. 26, 2007), aff’d, 331 F. App’x 452, 455-56 (9th Cir. 3 2009)). 4 The parties have not yet proposed a gross settlement 5 amount. However, they have proposed a settlement fund which 6 includes the following: (1) $250 incentive awards for the seven 7 named plaintiffs, for a total of $1,750 in plaintiff incentive 8 awards; (2) a payment of $50 to $1,000 to each class member 9 depending on how long he or she was excluded from Roseville 10 parks; (3) a supplemental payment of $150 to $1,500 to each class 11 member who claims loss of property in connection with that 12 exclusion depending on the lost property’s value; and (4) a 13 “reasonable amount of fees and costs incurred by class counsel to 14 handle the claims administration.” (See Docket No. 40-2 Ex. C at 15 ¶¶ 43-44.) 16 Plaintiffs faced numerous risks in the litigation, 17 including proving all elements of the claims, obtaining and 18 maintaining class certification, establishing liability, and the 19 costliness of litigation on these issues. Among other things, 20 after the Supreme Court decided City of Grants Pass v. Johnson, 21 603 U.S. 520 (2024), the strength of plaintiffs’ position came 22 into question. In Grants Pass, the Court held that a state or 23 local government may criminalize “camping . . . for the purpose 24 of maintaining a temporary place to live” without violating the 25 Eighth Amendment’s prohibition against cruel and unusual 26 punishment. 603 U.S. at 537-38, 560-61. 27 The parties appeared to read Grants Pass, 603 U.S. 520, 28 to have weakened plaintiffs’ federal constitutional claims. 1 Thus, plaintiffs’ counsel represents that the settlement and 2 resulting distribution “potentially benefits a substantial number 3 of person who, were it not for the settlement, would likely have 4 received no compensation whatsoever.” (See Docket No. 40-2 at 5 ¶ 8.) 6 In light of the risks associated with further 7 litigation and the relative strength of defendants’ arguments and 8 defenses, the court finds that the projected value of the 9 settlement is within the range of possible approval such that 10 preliminary approval of the settlement is appropriate. The court 11 further finds the method of determining the amount of recovery 12 for each class member claims to be adequate, as each class 13 member’s individual share of the settlement is proportional to 14 the amount of time excluded from Roseville parks and property 15 lost in connection with such exclusion. 16 Counsel are cautioned that because this settlement was 17 reached prior to class certification, it will be subject to 18 heightened scrutiny for purposes of final approval. See In re 19 Apple Inc. Device Performance Litig., 50 F.4th 769, 782-83 (9th 20 Cir. 2022). The recommendations of plaintiffs’ counsel will not 21 be given a presumption of reasonableness, but rather will be 22 subject to close review. See id. The court will particularly 23 scrutinize “any subtle signs that class counsel have allowed 24 pursuit of their own self-interests to infect the negotiations.” 25 See id. 26 3. Attorneys’ Fees 27 If a negotiated class action settlement includes an 28 award of attorneys’ fees, that fee award “must be evaluated in 1 the overall context of the settlement.” Monterrubio v. Best Buy 2 Stores, L.P., 291 F.R.D. 443, 455-56 (E.D. Cal. 2013) (England, 3 J.). “Courts have an independent obligation to ensure that the 4 award, like the settlement itself, is reasonable, even if the 5 parties have already agreed to an amount.” In re Bluetooth 6 Headset Prods. Liab. Litig., 654 F.3d 935, 941 (9th Cir. 2011) 7 (cleaned up). If the court does not approve the fee award in 8 whole or in part, that will not prevent the settlement agreement 9 from becoming effective or be grounds for termination. 10 In deciding the attorneys’ fees motion, the court will 11 have the opportunity to assess whether the requested fee award is 12 reasonable by multiplying a reasonable hourly rate by the number 13 of hours counsel reasonably expended. See In re Bluetooth 14 Headset, 654 F.3d at 941-42. As part of this lodestar 15 calculation, the court may consider factors such as the “level of 16 success” or “results obtained” by plaintiffs’ counsel. See id. 17 If the court, in ruling on the fees motion, finds that the amount 18 of the settlement warrants a fee award at a rate lower than what 19 plaintiffs’ counsel requests, then it will reduce the award 20 accordingly. The court will therefore not evaluate the fee award 21 at length here in considering whether the settlement is adequate. 22 IT IS THEREFORE ORDERED that the parties’ joint motion 23 for preliminary certification of a settlement class and 24 preliminary approval of the class action settlement (Docket 25 No. 40) be, and the same hereby is, GRANTED. 26 IT IS FURTHER ORDERED THAT: 27 (1) The court provisionally certifies the action to 28 proceed as a class action for settlement purposes only pursuant 1 to Federal Rule of Civil Procedure 23, with the settlement class 2 defined as follows: 3 (a) All homeless persons who were excluded from a City 4 of Roseville park facility pursuant to Roseville Municipal Code 5 section 8.02.316, but not arrested at the time, within two years 6 before September 20, 2022, and who shall be sent or otherwise 7 notified of the class notice and claim form in the manner 8 approved of and ordered by the court according to the settlement. 9 (2) The court approves the class notice (Docket No. 40- 10 2 Ex. C Attach. 2) and claim form (Docket No. 40-2 Ex. C Attach. 11 3) and further approves the method by which notice is proposed in 12 the settlement agreement (Docket No. 40-2 Ex. C at 9) to be given 13 to the settlement class. The class notice and claim form shall 14 be distributed to the class pursuant to the notice provisions in 15 the settlement agreement. 16 (3) The court approves the procedure set forth in the 17 settlement agreement and reflected in the class notice, with 18 which settlement class members must comply in order validly to 19 object to the settlement or to exclude themselves from the 20 settlement. (See Docket No. 40-2 Ex. C at 12-13.) 21 (a) Any settlement class member who did not elect to be 22 excluded from the settlement by submitting a request to be 23 excluded by the objection/exclusion deadline may, but need not, 24 submit objections to the proposed settlement by filing and 25 serving an objection to the settlement by the objection/exclusion 26 deadline. 27 (b) Any settlement class member who did not elect to be 28 excluded from the settlement by submitting a request to be 1 excluded by the objection/exclusion deadline may, but need not, 2 enter an appearance in this action through his or her own 3 attorney. Settlement class members who do not enter an 4 appearance through their own attorneys will be represented by 5 class counsel. 6 (4) The court appoints named plaintiffs Marcus Hill- 7 Colbert, Jennifer Timmons, Herminio LeBron, Daniel Reed, Vincent 8 Barnao, Erin McMarlin, and James Thompson as the representative 9 plaintiffs of the settlement class for settlement purposes only, 10 subject to final approval. 11 (5) The court appoints Mark E. Merin, Paul H. Masuhara, 12 and Paul W. Comiskey to serve as class counsel for settlement 13 purposes only, subject to final approval. 14 (6) A final approval hearing is scheduled to be held 15 before this court on July 21, 2025, at 1:30 p.m., in Courtroom 5 16 on the 14th floor of the Robert T. Matsui U.S. Courthouse, 17 located at 501 I Street, Sacramento, California 95814, before the 18 undersigned, to consider the fairness, reasonableness, and 19 adequacy of the proposed settlement; the dismissal, with 20 prejudice, of the instant action against the City of Roseville, 21 the Roseville Police Department, Roseville Officer Tyler Cantley, 22 and Does 1 through 20; and the entry of an order dismissing the 23 defendants in the instant action. Class counsel’s application 24 for an award of attorneys’ fees and costs shall be heard at the 25 time of the final approval hearing. 26 (a) The date, time and location of the final approval 27 hearing shall be set forth in the class notice, but the final 28 approval hearing shall be subject to cancellation or continuation 1 by the court, including in the event the court elects to decide 2 the motion for final approval without a hearing subject to Local 3 Rule 230(g), without further notice to the class other than any 4 notice that the court may issue pursuant to its regular 5 procedures. 6 (b) Only settlement class members who have filed and 7 served timely objections shall be entitled to be heard at the 8 final approval hearing. Any settlement class member who does not 9 timely file and serve an objection to the settlement shall be 10 deemed to have waived any such objection by appeal, collateral 11 attack, or otherwise. 12 (c) All settlement class members who do not seek to be 13 excluded from the settlement by submitting a request for 14 exclusion by the objection/exclusion deadline are enjoined from 15 proceeding against defendants, including their present or former 16 elective and/or appointive boards, agents, servants, employees, 17 consultants, departments, commissioners, attorneys, officials and 18 officers, and all other individuals and entities, whether named 19 or unnamed in the instant action, as to the claims asserted. 20 (d) Notwithstanding anything herein to the contrary, the 21 court reserves decision on final approval of the settlement 22 pending the final approval hearing, including consideration of 23 any objections to the settlement, and also reserves decision on 24 the final fee and expense award, and the incentive payments for 25 the representative plaintiffs. 26 (7) This action is hereby STAYED pending final approval, 27 except for any activities set forth in the settlement agreement. 28 (See Docket No. 40-2 Ex. C.) nee ee OR OIE I IE IERIE OID RES Oe
1 (8) In the event the settlement is not finally and fully 2 approved through entry of an order of dismissal of the instant 3 action against defendants which becomes final as of the effective 4 date, and/or if the settlement is not otherwise fully and finally 5 consummated, pursuant to the terms of the settlement agreement 6 (Docket No. 40-2 Ex. C), this order granting preliminary approval 7 of the settlement agreement shall be deemed void ab initio and 8 the parties shall be deemed to have reserved all of their 9 respective rights, legal positions, and arguments as of the day 10 before entry of this order granting preliminary approval, and the 11 | parties may continue with any litigation, mediation, or 12 settlement that they choose. 13 | Dated: April 14, 2025 □□ tteom. Ad. bt—~ 14 WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23