Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GIORGIO FOGY on behalf of himself Case No.: 25-CV-622 TWR (VET) and all others similarly situated, 12 ORDER (1) GRANTING FINAL Plaintiff, 13 APPROVAL OF CLASS ACTION v. SETTLEMENT, (2) PARTIALLY 14 GRANTING MOTION FOR BPREP VANTAGE POINTE LLC, a 15 ATTORNEYS’ FEES AND COSTS Delaware Limited Liability Company, AND PLAINTIFF’S SERVICE 16 BROOKFIELD PROPERTIES AWARD, AND (3) ENTERING MULTIFAMILY LLC, a Delaware 17 FINAL JUDGMENT Limited Liability Company, and DOES 1- 18 100, (ECF Nos. 25, 26) 19 Defendants. 20 21 Presently before the Court are Plaintiff Giorgio Fogy’s Unopposed Motion for Final 22 Approval of Class Action Settlement (“Fin. App. Mot.,” ECF No. 26) and Class Counsel’s 23 Motion for Attorneys’ Fees and Costs and Plaintiff’s Motion for Service Award (“Fee 24 Mot.,” ECF No. 25). The Court held a Final Approval hearing on July 2, 2026. (ECF No. 25 30.) After carefully considering the Parties’ arguments, the facts, and the relevant law, 26 the Court GRANTS the Unopposed Final Approval Motion and PARTIALLY GRANTS 27 Class Counsel’s Motion for Attorneys’ Fees and Costs and Plaintiff’s Motion for Service 28 Award. 1 FACTUAL BACKGROUND 2 I. Plaintiff’s Claims 3 This action arises from Plaintiff Giorgio Fogy’s tenancy at Vantage Pointe, a 679- 4 unit apartment building located at 1281 Ninth Ave, San Diego, CA 92101. (See Fin. App. 5 Mot. at 2.) Plaintiff alleges he and members of the Settlement Class “experienced multiple 6 and frequent water and hot water outages and shutoffs and elevator outages and shutoffs.” 7 (Id.) Plaintiff alleges the hot water outages “were particularly frequent and persistent in 8 the months of November 2024 to February 2025.” (ECF No. 20 at 2.) Plaintiff sued “for 9 breach of contract, breach of the implied warranty of habitability, breach of the implied 10 covenant of quiet enjoyment, private nuisance, negligence, and violation of California’s 11 Business & Professions Code sections 17200, et seq.” (Fin. App. Mot. at 2.) 12 II. Litigation and Settlement 13 Plaintiff filed this action on February 10, 2025, and Defendants removed this action 14 to this Court on March 14, 2025. (See Fin. App. Mot. at 2.) On April 30, 2025, the Parties 15 participated in an early neutral evaluation conference that did not result in settlement, so 16 the Parties proceeded with discovery. (See ECF No. 8; ECF No. 26-1 (“Suhr Decl.”) ¶¶ 6– 17 7.) Defendants produced over “14,000 pages of documents” in response to Plaintiff’s 18 discovery requests. (See Fin. App. Mot. at 2.) Plaintiff’s counsel also “took the deposition 19 of Jose Macias, Brookfield’s Regional Engineer, and conducted a witness interview of the 20 former Maintenance Manager at Vantage Pointe (the highest-ranking on-site maintenance 21 employee), Antonio Herrera.” (Id.) On December 11, 2025, the Parties participated in a 22 12-hour mediation, before Scott Markus of Signature Resolutions. (See id. at 3.) The 23 mediation “ended in a mediator’s proposal—rendered by Mr. Markus after hearing 24 detailed analysis of the case from the parties—that both parties accepted.” (Id.) This 25 mediator’s proposal resulted in the Settlement Agreement. (See id.) 26 / / / 27 / / / 28 / / / 1 III. The Classes 2 The Settlement Agreement provides the following two classes: 3 1. The Settlement Class: All Tenants who resided at Vantage Pointe at any time 4 between February 10, 2021, and the date of Preliminary Approval. 5 2. The Winter 24-25 Subclass: All Tenants who resided at Vantage Pointe at 6 any time between November 1, 2024, to February 28, 2025. 7 (See ECF No. 26-2 (“Settlement Agreement”) ¶¶ 2.3, 2.4.) The Settlement Class includes 8 the Winter 24-25 Subclass. (Id. ¶ 2.4.) Both the Settlement Class and the Winter 24-25 9 Subclass exclude the following released parties: “Defendants, together with each of their 10 respective affiliates, agents, employees, officers, directors, parents, subsidiaries, 11 attorneys, representatives, advisors, administrators, predecessors, successors, insurers, 12 accountants, advisors, or anyone acting on their behalf.” (Id. ¶ 2.31.) 13 IV. The Settlement Agreement 14 The Settlement Agreement provides that Defendants will pay $2,495,000 to the 15 Settlement Class, with no reversion to Defendants. (See Fin. App. Mot. at 3.) “Of that 16 amount, $1,555,000 (or 62.3%) is apportioned to the Settlement Class, and $940,000 (or 17 37.7%) is apportioned to the Winter 24-25 Subclass.” (Id.) Prior to disbursement to the 18 Settlement Class, the Settlement Fund will be used to pay (1) any service award to 19 Plaintiff, (2) Class Counsel’s attorneys’ fees, (3) Class Counsel’s costs, and (4) the 20 Settlement Administrator’s fees. (See id. at 4). 21 CLASS CERTIFICATION FOR THE PURPOSES OF SETTLEMENT 22 In its Preliminary Approval Order, the Court conditionally certified the Settlement 23 Class and Winter 24–25 Subclass for the purposes of settlement. (See ECF No. 22 24 (“Prelim. App. Order”) at 16–21.) No new facts have been introduced that would change 25 this analysis. Accordingly, for the reasons previously explained, (see id.), the Court finds 26 the requirements of Federal Rules of Civil Procedure 23(a) are satisfied and CERTIFIES, 27 for the purposes of settlement only, the following classes: 28 / / / 1 1. A “Settlement Class” consisting of all Tenants who resided at Vantage Pointe 2 at any time between February 10, 2021, and the date of Preliminary Approval 3 (the “Class Period”). 4 2. A “Winter 24-25 Subclass” consisting of all Tenants who resided at Vantage 5 Pointe at any time between November 1, 2024, to February 28, 2025 (the 6 “Winter 24-25 Subclass Period”). 7 FINAL APPROVAL OF SETTLEMENT 8 I. Legal Standard 9 Federal Rule of Civil Procedure 23(e) provides that “[t]he claims, issues, or 10 defenses of a certified class may be settled, voluntarily dismissed, or compromised only 11 with the court’s approval.” “[S]trong judicial policy . . . favors settlements, particularly 12 where complex class action litigation is concerned.” Class Pls. v. City of Seattle, 955 F.2d 13 1268, 1276 (9th Cir. 1992). “The purpose of Rule 23(e) is to protect the unnamed 14 members of the class from unjust or unfair settlements affecting their rights.” In re Syncor 15 ERISA Litig., 516 F.3d 1095, 1100 (9th Cir. 2008). The Court’s review of the settlement 16 is meant to be “extremely limited,” and the Court should consider the settlement as a 17 whole. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1026 (9th Cir. 1998), overruled on 18 other grounds by Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011). 19 For approval of a class settlement, the Court determines whether the proposed 20 settlement is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). To determine 21 whether a settlement is “fair, reasonable, and adequate,” district courts should consider 22 whether: 23 A. the class representatives and class counsel have adequately represented the 24 class; 25 B. the proposal was negotiated at arm’s length; 26 C. the relief provided for the class is adequate, taking into account: 27 a. the costs, risks, and delay of trial and appeal; 28 / / / 1 b. the effectiveness of any proposed method of distributing relief to the class, 2 including the method of processing class-member claims; 3 c. the terms of any proposed award of attorney’s fees, including timing 4 of payment; and 5 d. any agreement required to be identified under Rule 23(e)(3); and 6 D. the proposal treats class members equitably relative to each other. 7 Fed. R. Civ. P. 23(e)(2)(A)–(D). Courts may also refer to the following factors, often 8 referred to as the “Hanlon factors,” which are commonly used in the Ninth Circuit: (1) the 9 strength of the plaintiff’s case; (2) the risk, expense, complexity, and likely duration of 10 further litigation; (3) the risk of maintaining class action status throughout the trial; (4) the 11 amount offered in settlement; (5) the extent of discovery completed and the stage of the 12 proceedings; (6) the experience and views of counsel; (7) the presence of a governmental 13 participant; and (8) the reaction of the class members of the proposed settlement. See In 14 re Cal. Pizza Kitchen Data Breach Litig., 129 F.4th 667, 674 (9th Cir. 2025). 15 Further, if there are “indicia of implicit collusion, ” then a proposed settlement must 16 withstand an even higher level of scrutiny for evidence of collusion or other conflicts of 17 interest than is ordinarily required under Rule 23(e). In re Cal. Pizza Kitchen, 129 F.4th 18 at 675 (citing In re Bluetooth Headset Prods. Liab. Litig., 654 F.3d 935, 946 (9th Cir. 19 2011)). Indicia of collusion include: “(1) when counsel receives a disproportionate 20 distribution of the settlement; (2) when the parties negotiate a ‘clear sailing arrangement,’ 21 under which the defendant agrees not to challenge a request for an agreed-upon attorney’s 22 fee; and (3) when the agreement contains a ‘kicker’ or ‘reverter’ clause that returns 23 unawarded fees to the defendant, rather than the class.” Id. (citation omitted). Moreover, 24 for pre-class certification settlements, the Court must subject the settlement to “an even 25 higher level of scrutiny for evidence of collusion or other conflicts of interest than is 26 ordinarily required under Rule 23(e) before securing the court’s approval as fair.” Id. 27 (citing Hanlon, 150 F.3d at 1026). 28 / / / 1 II. Analysis 2 A. Adequate Notice 3 For the Court to approve a settlement, “[t]he class must be notified of a proposed 4 settlement in a manner that does not systematically leave any group without notice.” 5 Officers for Justice v. Civil Serv. Comm’n of City & Cty. of S.F., 688 F.2d 615, 624 (9th 6 Cir. 1982). Here, the Settlement Administrator first attempted to provide Class Members 7 notice via email. (See Fin. App. Mot. at 6.) For Class Members whose emails were 8 unavailable, the Settlement Administrator sent notice by mail. (See id.) “For Class 9 Members for whom Defendants had neither an email address nor mailing address, prior to 10 distributing notice, the Settlement Administrator performed a skip trace using the Class 11 Members’ name and Defendant-provided phone number to find the Class Members’ email 12 address.” (Id.) The Settlement Administrator also provided notice pursuant to 28 U.S.C. 13 § 1715 (“CAFA Notice”) on March 9, 2026. (See id. at 25; ECF No. 26-3 ¶ 4.) 14 Despite the Settlement Administrator’s efforts, notice was not provided to eight 15 class members. (See id. at 24.) But because the Court finds Class Counsel took reasonable 16 measures to provide notice, the Court finds that notice was provided in an adequate 17 manner. See Santillan v. Verizon Connect, Inc., No. 3:21-CV-1257-H-KSC, 2024 WL 18 627998, at *5 (S.D. Cal. Feb. 13, 2024) (“While Rule 23 requires that ‘reasonable effort’ 19 be made to reach all class members, it does not require that each individual actually receive 20 notice.”) (quoting Winans v. Emeritus Corp., No. 13-CV-03962-HSG, 2016 WL 107574, 21 at *3 (N.D. Cal. Jan. 11, 2016)). 22 B. Collusion Factors 23 At the preliminary approval stage, the Court was concerned with the potentially 24 disproportionate distribution to Class Counsel and the clear sailing agreement. (See 25 Prelim. App. Order at 7–10.) In response, Class Counsel requested 25% in attorneys’ fees. 26 (See Fee Mot. at 1.) This request is not disproportionate. See infra pages 11–12. Thus, 27 the Court only considers the existence of a clear sailing agreement. In doing so the Court 28 finds that because any difference between the requested attorneys’ fees and service award 1 and amounts awarded will go to the Class Members, there is no risk of collusion. See 2 Blount v. Host Healthcare, Inc., No. 21-CV-310-MMA (WVG), 2022 WL 1094616, at *6 3 (S.D. Cal. Apr. 12, 2022) (concluding that the “clear sailing” provision did not show signs 4 of collusion where settlement agreement provided that any difference between fees sought 5 and fees awarded would revert to net settlement amount, and thus, to the class). 6 C. Rule 23 Factors 7 1. Adequate Representation 8 Adequacy involves a two-part inquiry: “(1) do the named plaintiffs and their 9 counsel have any conflicts of interest with other class members and (2) will the named 10 plaintiffs and their counsel prosecute the action vigorously on behalf of the class?” 11 Hanlon, 150 F.3d at 1020. 12 a. Named Plaintiff 13 Service awards to class representatives do not automatically create a prohibited 14 conflict of interest between class members and class representatives. See In re Online 15 DVD-Rental Antitrust Litig., 779 F.3d 934, 943 (9th Cir. 2015). But “[a] disproportionate 16 service award can indicate preferential treatment that undermines both the reasonableness 17 of a settlement for absent class members and the adequacy of representation by the class 18 representative.” Wilson v. J.B. Hunt Logistics, Inc., No. 218CV03487SVWAFMX, 2020 19 WL 11626082, at *4 (C.D. Cal. Nov. 13, 2020) (citing Staton, 327 F.3d at 975–78). 20 Following the reduction in Plaintiff’s proposed service award discussed below, see infra 21 pages 14–16, Plaintiff does not have any conflict of interest with his fellow Class 22 Members. Accordingly, there is no barrier to final approval. 23 b. Class Counsel 24 The Court finds that Class Counsel does not have any conflicts of interest and that 25 they prosecuted this action vigorously on behalf of the class. This finding is bolstered by 26 Class Counsel’s voluntary reduction of their fee request. (See generally Fee Mot.) 27 Accordingly, this weighs in favor of final approval. 28 / / / 1 2. Arm’s Length Negotiation 2 This settlement is the product of a 12-hour mediation and the resulting mediator’s 3 proposal. (See Fin. App. Mot. at 12.) Class Counsel states that substantial discovery and 4 fact investigation occurred prior to the mediation and that the mediation was a detailed 5 discussion of the “facts of the Action, issues of certifiability, merits issues, and damages 6 issues.” (Id.) Given the extent of pre-settlement discovery and the fact that the Settlement 7 Agreement was negotiated by a neutral mediator, the Court finds the settlement was 8 negotiated at arm’s length. 9 3. Adequate Relief 10 a. Costs, Risks, and Delay of Further Litigation 11 Class Counsel asserts that “the risk of non-recovery or reduced recovery” was 12 substantial and thus supports final approval. (Fin. App. Mot. at 13.) Specifically, Class 13 Counsel identifies a “novel legal question” that the Court would have to determine— 14 whether a warranty of habitability claim arises even if the tenant was not around to 15 experience a lack of hot water.1 (Id.) Further, Class Counsel states there would be 16 difficulties marshaling proof of the hot water interruptions at trial and trial would be risky 17 because a jury would have to decide whether interruptions were material. (See id. at 14– 18 15.) The Court finds that there are multiple risks to continued litigation for Class 19 Members; therefore, the Court finds that the costs, risks, and delay of trial and appeal 20 weigh in favor of final approval. 21 22 1 Class Counsel states “there is no California case” that outright states a warranty of habitability 23 claim arises even if the tenant was not around to experience the disruption of hot water and identifies this as a risk for class certification. (Id.) The Court is obligated to give heightened attention to the definition 24 of the class when certifying a class action for settlement purposes. See In re Hyundai & Kia Fuel Econ. 25 Litig., 926 F.3d 539, 556–557 (9th Cir. 2019). Accordingly, the Court briefly explains why this issue does not defeat commonality. In Knight v. Hallsthammar, the California Supreme Court found that “the 26 fact that a tenant was or was not aware of specific defects is not determinative of the duty of a landlord to maintain premises which are habitable.” 29 Cal. 3d 46, 54 (1981). Based on this finding, California 27 Courts of Appeals have found that the need for individualized evidence of how each tenant was impacted by the alleged defect does not defeat commonality. See, e.g., Peviani v. Arbors at California Oaks Prop. 28 1 b. Effectiveness of Distributing Relief 2 The Class Members with mailing addresses on file will receive their settlement 3 payment checks via physical mail. (See Fin. App. Mot. at 16.) The remaining Class 4 Members will receive their settlement payment via an electronic check. (See id.) Any 5 unclaimed funds will be submitted to the California Unclaimed Property Fund. (See id. at 6 17.) The fact that Class Members do not need to submit a claim form to be sent their 7 monetary damages weighs in favor of final approval. See Jackson v. Fastenal Co., 2021 8 WL 5755583 at *11 (E.D. Cal. Dec. 3, 2021) (finding “the proposed method of distributing 9 relief is effective, and weighs in favor of a finding that the settlement agreement is fair, 10 reasonable and adequate” where the class members did not have to file a claim). 11 c. Terms and Timing of Proposed Attorneys’ Fees 12 As explained, see infra pages 11–13, the requested attorneys’ fees are reasonable 13 given that they align with the presumptive 25% benchmark in the Ninth Circuit. Further, 14 the Settlement Administrator will pay the awarded attorneys’ fees to Class Counsel within 15 thirty days of the date on which Defendants have paid the full Settlement Fund to the 16 Settlement Administrator. (See Settlement Agreement ¶ 8.1.) Thus, the terms and timing 17 of the attorneys’ fees weigh in favor of final approval. See Lusk v. Five Guys Enters. LLC, 18 No. 1:17-CV-0762 JLT EPG, 2023 WL 4134656, at *17 (E.D. Cal. June 22, 2023) 19 (“Because Class Members will receive their shares shortly after the funds are received— 20 and Class Counsel will also be paid after final approval—the timing of the payments does 21 not weigh against approval.”). 22 d. Any Agreement Under Rule 23(e)(3) 23 Under Rule 23(e)(3), “parties seeking approval must file a statement identifying 24 any agreement made in connection with the proposal.” The Parties have not identified 25 any such agreement. (See generally Fin. App. Mot.) Thus, this factor does not impact 26 granting final approval. 27 / / / 28 / / / 1 4. Equitable Treatment Between Class Members 2 As explained in the Court’s Preliminary Approval Order, (see Prelim. App. Order 3 at 11), given the higher volume and duration of interruptions in the Winter 24-25 period, 4 the Court does not find the additional compensation for the Winter 24-25 Subclass is 5 preferential treatment. See In re Omnivision Techs., Inc., 559 F. Supp. 2d 1036, 1045 6 (N.D. Cal. 2008) (“It is reasonable to allocate the settlement funds to class members based 7 on the extent of their injuries or the strength of their claims on the merits.”) (citation 8 omitted). 9 D. Relevant Hanlon Factors 10 1. Extent of Discovery and Stage of the Proceedings 11 This action settled approximately one year after the Complaint was filed. (See 12 Docket.) Prior to settlement via a mediator’s proposal, the Parties participated in an Early 13 Neutral Evaluation and engaged in “substantial discovery review and fact investigation.” 14 (Fin. App. Mot. at 11.) Specifically, Class Counsel, with the assistance of other document 15 reviewers, “reviewed over 14,000 pages of work orders, invoices, vendor emails, tenant 16 complaints, and internal emails from which he built a comprehensive timeline of shutoffs, 17 outages, and interruptions during the Class Period and damages calculations.” (Id. at 12.) 18 Because the Parties participated in thorough discovery, an Early Neutral Evaluation, and 19 a fulsome mediation, this factor weighs in favor of final approval. 20 2. Experience and Views of Counsel 21 Class Counsel asserts that they “have a thorough understanding of the facts and 22 legal issues involved in this Action and a wealth of experience with settling consumer 23 class actions.” (Fin. App. Mot. at 22). Class Counsel believe this Settlement is “in the 24 best interest of Settlement Members.” (Id.) Class Counsel’s favorable view of this 25 settlement weighs in favor of final approval. 26 3. Reaction of the Class Members 27 There were zero objections to this settlement and five opt-outs. (See Fin. App. Mot. 28 at 22; ECF No. 28 (“Suppl.”) at 1.) Thus, the overall reaction of the Class Members is 1 favorable and weighs in favor of final approval. See Nunez v. BAE Sys. San Diego Ship 2 Repair Inc., 292 F. Supp. 3d 1018, 1040 (S.D. Cal. 2017) (“Thus, as a purely numerical 3 observation, the overwhelming positive response to the Settlement strongly supports final 4 approval.”). 5 E. Conclusion 6 Because the relevant factors weigh in favor of granting final approval, the Court 7 GRANTS the Unopposed Motion for Final Approval and FINALLY APPROVES the 8 Settlement Agreement under Federal Rule of Civil Procedure 23(e) as fair, reasonable, 9 and adequate. 10 MOTION FOR ADDITIONAL SETTLEMENT ADMINISTRATOR COSTS 11 Plaintiff requests the Court approve $23,029.40 of Settlement Administrator costs 12 to be deducted from the Settlement Fund. (See Fin. App. Mot. at 25.) This is a $849.40 13 increase from the amount approved on preliminary approval based on the Settlement 14 Administrator’s unanticipated task of emailing Class Members to obtain their mailing 15 address. (See id.) Because this is a small increase that does not change the Court’s 16 analysis, the Court APPROVES $23,029.40 in Settlement Administrator costs. 17 MOTION FOR ATTORNEYS’ FEES 18 Rule 23(h) of the Federal Rules of Civil Procedure provides that, “[i]n a certified 19 class action, the court may award reasonable attorney’s fees and nontaxable costs that are 20 authorized by law or by the parties’ agreement.” Fed. R. Civ. P. 23(h). Here, Class 21 Counsel requests 25% of the Settlement Fund in attorneys’ fees and $12,535.20 in costs. 22 (See Fee Mot. at 4, 22.) 23 “Where a settlement produces a common fund for the benefit of the entire class, 24 courts have discretion to employ either the lodestar method or the percentage-of-recovery 25 method.” In re Bluetooth, 654 F.3d at 942. But, in doing so, courts must exercise their 26 discretion to select a calculation method that will achieve a reasonable result. Id. A court 27 can demonstrate the reasonableness of a calculation method by “conducting a cross-check 28 using the other method.” In re Online DVD-Rental Antitrust Litig., 779 F.3d at 949. 1 The Court finds it appropriate to employ the percentage-of-recovery method to 2 award attorneys’ fees and crosscheck the amount with the lodestar method. Class 3 Counsel’s request for 25% of the common fund aligns with the Ninth Circuit’s 4 presumptively reasonable benchmark for common fund cases. See In re Bluetooth, 654 5 F.3d at 943; see also In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d at 570 (describing 6 the 25% benchmark in percentage of recovery cases as a “rough approximation of a 7 reasonable fee”). But the “25% benchmark rate, although a starting point for analysis, 8 may be inappropriate in some cases.” Vizcaino v. Microsoft Corp., 290 F.3d 1043, 1048 9 (9th Cir. 2002). Some cases will justify a higher percentage while other cases will justify 10 a lower percentage. See id. 11 In determining whether the 25% benchmark is appropriate, courts may consider 12 (1) the extent to which class counsel achieved exceptional results for the class, (2) whether 13 the case was risky for class counsel, (3) whether counsel’s performance generated benefits 14 beyond the cash settlement fund, (4) the market rate for the particular field of law (in some 15 circumstances), (4) the burdens class counsel experienced while litigating the case (e.g., 16 cost, duration, foregoing other work), and (5) whether the case was handled on a 17 contingency basis. See In re Online DVD-Rental Antitrust Litig., 779 F.3d at 954–955. 18 Class Counsel bases their request for 25% in attorneys’ fees on (1) an “excellent result for 19 the Class,” (2) the risk of non-recovery, (3) the contingent nature of the representation, 20 (4) the quality of work, and (5) the awards in similar cases. (Fee Mot. at 5.) Based on the 21 contingent nature of the representation and its potential impact on a small firm and the 22 results obtained, the Court finds the presumptive 25% benchmark is appropriate. 23 Turning to the lodestar crosscheck, Class Counsel states their lodestar is 24 $568,535.00, creating a 1.1 multiplier. (See Fee Mot. at 21.) But a portion of the hours 25 Class Counsel includes in their calculation relate to Plaintiff’s restraining order 26 proceeding. (See id. at 17–18.) Class Counsel argues this is appropriate because the Ninth 27 Circuit has found that work on a separate case is compensable if it is “reasonably necessary 28 to the interests of the client” in the primary litigation. (Id. at 17 (quoting Armstrong v. 1 Davis, 318 F.3d 965, 973 (9th Cir. 2003).) The Court agrees with this general premise but 2 does not draw the same connection as Class Counsel when comparing the relationship 3 between this litigation and Plaintiff’s restraining order. Class Counsel states that 4 representing Plaintiff in his restraining order proceeding benefited Plaintiff and the Class 5 Members because “Mr. Fogy could have dismissed this Action or withdrawn as the named 6 plaintiff and attempt[ed] to use that as a bargaining chip to persuade Brookfield from 7 further pursuing the restraining order.” (Fee Mot. at 18.) Because the Court is unwilling 8 to litigate the merits or lack thereof in the restraining order proceeding, see infra pages 9 14–15, the lodestar should be calculated without time spent representing Plaintiff in his 10 restraining order proceeding. Based on the Court’s calculation, this results in a lodestar 11 of $527,082.50, which is a 1.18 multiplier. The Court does not find that this multiplier 12 makes the 25% in attorneys’ fees unreasonable. See Couser v. Comenity Bank, 125 F. 13 Supp. 3d 1034, 1049 (S.D. Cal. 2015) (granting attorneys’ fees that represented a 2.80 14 multiplier based on “the risk of non-payment based on their contingent representation, the 15 favorable results achieved for the Class, the burden on class counsel, and the skill and 16 quality of Class Counsel’s work”). Accordingly, the Court AWARDS $623,750 in 17 attorneys’ fees. 18 Lastly, Class Counsel requests $12,535.20 in costs. (See Fee Mot. at 22.) Class 19 Counsel represents that this figure includes filing fees, service, parking for in-person 20 filings, printing costs relating to the restraining order proceeding, data-hosting, document 21 review platform costs, the cost of a deposition transcript order, and the cost of mediation. 22 (See id. at 22–23.) The Settlement Agreement states that Class Counsel will apply to the 23 Court for an award of actual costs incurred, which will cover costs, expenses, and 24 disbursements “incurred by them and their experts, staff, and consultants in connection 25 with the Action.” (Settlement Agreement ¶ 8.1.) A review of the costs incurred illustrates 26 that some of the costs were specific only to Mr. Fogy’s restraining order proceeding. 27 Because it is not reasonable to reduce Class Members’ awards based on the costs of Mr. 28 1 Fogy’s restraining order proceeding, the Court deducts the restraining order specific costs 2 and AWARDS $12,332.63 in costs. 3 MOTION FOR PLAINTIFF’S SERVICE AWARD 4 “[I]ncentive awards that are intended to compensate class representatives for work 5 undertaken on behalf of a class are fairly typical in class action cases.” In re Online DVD- 6 Rental Antitrust Litig., 779 F.3d at 943 (internal quotation omitted). But “courts must be 7 vigilant in scrutinizing all incentive awards to determine whether they destroy the 8 adequacy of the class representatives.” Radcliffe v. Experian Info. Sols. Inc., 715 F.3d 9 1157, 1164 (9th Cir. 2013). District courts evaluate proposed awards individually, using 10 relevant factors including, “the actions the plaintiff has taken to protect the interests of the 11 class,” “the degree to which the class has benefitted from those actions,” “the amount of 12 time and effort the plaintiff expended in pursuing the litigation,” and “reasonable fears of 13 workplace retaliation.” Staton, 327 F.3d at 977 (cleaned up and citation omitted). Further, 14 “[t]o determine the reasonableness of an incentive payment, courts consider the 15 proportionality between the incentive payment and the range of class members’ settlement 16 awards.” Dyer v. Wells Fargo Bank, N.A., 303 F.R.D. 326, 335 (N.D. Cal. 2014). In this 17 District, a $5,000 incentive award is presumptively reasonable. See In re Regulus 18 Therapeutics Inc. Sec. Litig., No. 3:17-CV-182-BTM-RBB, 2020 WL 6381898, at *8 19 (S.D. Cal. Oct. 30, 2020). 20 Plaintiff is requesting a $10,000 service award. (See Fee Mot. at 23.) Based on 21 Class Counsel’s assumed Net Settlement Fund of $1,825,685.40, a $10,000 service award 22 represents 3642% of what the Settlement Class Members will receive and 1189% of what 23 Winter 24-25 Subclass Members will receive. (See Fin. App. Mot. at 4; Suppl. at 1.) 24 Plaintiff justifies this request based on the “substantial risk Mr. Fogy took on in filing the 25 Action and the personal ramifications he suffered that merit the requested award.” (Fee 26 Mot. at 23.) Specifically, Plaintiff alleges he suffered retaliation from Defendants when 27 they sought a “workplace violence restraining order against Mr. Fogy on behalf of a 28 1 Vantage Pointe staff member in San Diego Superior Court, alleging Mr. Fogy had engaged 2 in harassing behavior toward the employee.” (Id. (citing Suhr Decl. ¶ 12).) 3 Defendants do not oppose the $10,000 request but argue that the Court “should not 4 accept Plaintiff’s unsupported narrative that the [Temporary Restraining Order] 5 Proceeding was filed as retaliation for this Action.” (ECF No. 27 (“Resp.”) at 3.)2 While 6 courts have found that retaliation—risked or actualized—can be a justification for a 7 service award, the Court is unwilling to litigate whether Defendants’ act of seeking a 8 workplace violence restraining order was an act of retaliation or a legitimate response to 9 Plaintiff’s behavior. Further, the cases Plaintiff cites to are distinguishable. See Huynh v. 10 Hous. Auth. of Cnty. of Santa Clara, No. 14-CV-02367-LHK, 2017 WL 1050539, at *8– 11 *9 (N.D. Cal. Mar. 17, 2017) (awarding one $10,000 service award and four $5,000 12 service awards and reasoning that the first named plaintiff receiving the $10,000 award 13 faced a higher risk of retaliation and embarrassment when the litigation involved 14 disclosing “potentially embarrassing details regarding physical and mental disabilities and 15 financial status” and retaliation that “could have left them homeless”); see also Bailey v. 16 Kinder Morgan G.P., Inc., No. 18-CV-03424-TSH, 2020 WL 5748721, at *8–*9 (N.D. 17 Cal. Sept. 25, 2020) (awarding a $10,000 service award in a wage and hour action where 18 the plaintiff faced reputational risk in bringing suit). Accordingly, the Court will consider 19 whether the requested service award is warranted based on Plaintiff’s work on this case. 20 Plaintiff estimates that he spent 54 hours on this action. (See ECF No. 25-10 (“Fogy 21 Decl.”) ¶ 3.) However, five of these hours were dedicated to “attending the restraining 22 order hearing” and eight hours were spent “gathering evidence, making in-person filings, 23 reviewing filings, and conferencing with my counsel in relation to the restraining order 24 25 2 As aptly stated by Class Counsel, “there are two vastly opposing sides to this story.” (Suppl. at 26 2.) Defendants assert that the employee at issue “declared under penalty of perjury that Mr. Fogy called him a ‘dickhead,’ stated that he looked like a ‘fucking pedophile,’ [and] made a threatening ‘throat slash’ 27 gesture directed at [the employee] through the leasing office window in plain view of tour guests.” (Resp. at 4.) Plaintiff maintains that he “never yelled or screamed at [the employee] or made any threatening 28 1 proceeding.” (Id.) Accordingly, it appears that Plaintiff spent 41 hours gathering 2 evidence, conferring with counsel, helping with filings, assisting with discovery, and 3 attending the mediation for the instant action. (See id.) While the Court recognizes 4 Plaintiff’s significant work on this case, the Court nevertheless finds the requested award 5 is grossly disproportionate to the average sum the unnamed Class Members will recover. 6 As such, the Court exercises its discretion and reduces Plaintiff’s proposed service award 7 to $7,000. See Wightman v. Cobham Advanced Elec. Sols. Inc., No. 21-CV-1784 TWR 8 (DEB), 2024 WL 5706069, at *19 (S.D. Cal. Sept. 6, 2024) (recognizing the plaintiff’s 9 “significant service to the Class” but reducing the requested service award from $37,500 10 to $12,000 because the proposed award was “grossly disproportionate” in comparison to 11 the average sum the unnamed class members would recover); see also Ruiz v. JCP 12 Logistics, Inc., No. SACV131908JLSANX, 2016 WL 6156212, at *11–12 (C.D. Cal. Aug. 13 12, 2016) (reducing a service award from $10,000 to $6,000 when the plaintiff spent “little 14 more than 40 hours” on the case, the total settlement amount was less than $1 million, and 15 the average per capita individual settlement payments amounted to only $734.25). 16 Accordingly, the Court AWARDS Plaintiff $7,000 as a service award. 17 CONCLUSION 18 For the foregoing reasons, the Court ORDERS as follows: 19 1. The Court FINDS the requirements of Federal Rules of Civil Procedure 23(a), 20 23(b)(2), and 23(b)(3) are satisfied and CERTIFIES, for the purposes of settlement 21 only, the following classes: 22 i. The Settlement Class: All Tenants who resided at Vantage Pointe at any 23 time between February 10, 2021, and the date of Preliminary Approval. 24 ii. The Winter 24-25 Subclass: All Tenants who resided at Vantage Pointe 25 at any time between November 1, 2024, to February 28, 2025. 26 For both the Settlement Class and the Winter 24-25 Subclass, the term “Tenant” is 27 defined as “any person who (1) signed a lease for an apartment at Vantage Pointe, 28 and (2) resided in an apartment at Vantage Pointe for which they signed a lease.” 1 The Settlement Class includes the Winter 24-25 Subclass. Both the Settlement 2 Class and the Winter 24-25 Subclass exclude the Released Parties and all persons 3 who filed a timely and valid Opt-Out Form. 4 2. The Court GRANTS the Unopposed Motion for Final Approval and FINALLY 5 APPROVES the Settlement Agreement under Federal Rule of Civil Procedure 6 23(e) as fair, reasonable, and adequate. 7 3. The Court AWARDS Class Counsel 25% in attorneys’ fees and $12,332.63 in 8 costs. 9 4. The Court AWARDS Plaintiff $7,000 as a service award. 10 5. The Court GRANTS the Motion for Settlement Administrator costs of $23,029.40. 11 6. As agreed by the Parties, the Honorable Magistrate Judge Valerie E. Torres will 12 RETAIN jurisdiction. 13 7. The Clerk of the Court SHALL ENTER final judgment. 14 Dated: July 13, 2026 —— 16 Honorable Todd W. Robinson 7 United States District Judge 18 19 20 21 22 23 24 25 26 27 28