BEDSWORTH, J.
The unusual title of this case reflects the fact it arises out of the settlement of a class action suit brought against Advanced Medical Optics, now known as Abbott Medical Optics (AMO), for allegedly making misleading statements concerning the disinfecting capabilities of the company's "COMPLETE MoisturePLUS" multipurpose contact lens solution (the "Complete Contact Lens Solution") in the mid-2000's. The basic theory of the class action was that the product had been marketed as a "multipurpose" contact lens solution with the ability to "disinfect" contact lenses, when, in fact, it did not disinfect lenses of a microorganism known as Acanthamoeba whose presence in the eye can cause Acanthamoeba keratitis, which in turn can lead to corneal ulcers and even blindness. Prominent in the pleadings was the recall of the Complete Contact Lens Solution after a report by the United States Centers for Disease Control noted an increased risk of Acanthamoeba kerititis in users of the solution.
The class action suit was settled in 2011. Besides requiring the product to be pulled from the market, the settlement consisted of two basic components: The first part involved reimbursements to class members. AMO would pay 100 percent of the price of every bottle of the contact lens solution purchased if the class member submitted proof of purchase. If a class member didn't have proof of purchase but did have bottles of the solution, the class member would be reimbursed a small amount of money depending on the size of the bottle ($4 for a 2 ounce bottle, $5 for a 4 ounce bottle, $6 for "an Active Pack" and $9 for 12 and 16 ounce bottles.) And if class members had no proof of purchase or bottles, they could, by declaring under penalty of perjury they purchased the solution, receive a coupon for $10 worth of other AMO products. The settlement also contemplated a payment by AMO of some $1,847,529 in attorney fees and costs.
The second part involved the establishment of a cy pres fund in the event the total amount of reimbursements to class members did not reach $650,000. Any difference was to be paid to Guide Dogs of America (with funding earmarked for California residents) and Children's Vision First. Guide Dogs of America is self-descriptive in its mission. Children's Vision First provides free eye exams and prescription glasses to needy children.
A final fairness hearing was scheduled for March 23, 2012. On March 7, appellant Camille Jacinto Hale sent a letter to the court, objecting to the proposed settlement. Besides asserting she had received an inadequate notice of her right to object,
Hale did not show up for the fairness hearing, which was held on time on March 23, 2012. The trial judge approved the cy pres portion of the settlement, but cut the attorneys fee request to $750,000. The judge reasoned that if the $650,000 fund were analogized to a contingency fee of somewhere between 30 and 40 percent, then, given a multiplier of three, the result would be a fee "in the range of $750,000," which was the figure she chose. The formal judgment was filed that very day, and within about 50 days Hale filed this appeal.
We affirm the judgment. In California, cy pres funds pursuant to class action settlements are governed by section 384 of the Code of Civil Procedure. We quote the relevant subdivisions of the statute in a footnote, and, as the italicized words show, the fit between the litigation generating the fund and the beneficiaries of the fund need not be coterminous.
The standard of review that governs this case is abuse of discretion. (Microsoft I-V, supra, 135 Cal.App.4th at p. 723 ["Our task is limited to a review of the record to determine whether it discloses a clear abuse of discretion when the trial court's determination of fairness is challenged on appeal."].) Here, we can hardly say that charities which either (a) directly aid blind people or (b) provide poor kids with eye exams and glasses are too remote or inconsistent with the basic object of the litigation to constitute an abuse of discretion. The themes of eye care and blindness obviously predominate. The purpose of the litigation was to provide some sort of redress for consumers who ran some risk of eye damage or actual blindness from the product. Such a nexus certainly compares favorably to Microsoft I-V's approval of vouchers for low-income public school students in what had started as essentially an anti-trust suit and the general legislative goal of promoting justice in cy pres distributions. (See id. at p. 727 ["The fact that the compensatory effect for class members was indirect, as compared with the more direct benefit to low-income students having little correlation with the plaintiff class, does not alter this conclusion."].)
Likewise Hale's challenge to the attorney fee award is governed by an abuse of discretion standard. (Cellphone Termination Fee Cases (2009) 180 Cal.App.4th 1110, 1118 ["Trial court orders approving class action settlements and awarding attorney fees are reviewed for abuse of discretion."].) Again, we cannot say the trial court's determination of $750,000 in class counsel fees was so high as to be unreasonable.
The four "Ketchum factors" are all present: (1) novelty and difficulty of the case, (2) the necessity of a high level of skill; (3) the preclusion of other employment, and (4) the contingent nature of any fee recovery. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) Taking the Ketchum factors in reverse order, we note the contingent nature of the litigation is a given. Further, the record shows class counsel spent over 6,000 hours on the case, hence preclusion of other employment is also shown. And the case involved both the need for skill and novel questions, given the scientific nature of the issues and the statistical correlation between any defect in the product and injury.
That leaves us with the request of both class counsel and AMO to impose sanctions against Ms. Hale for frivolous appeal. That's a matter on which we have discretion. (See Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1181-1182.) In light of the "no reasonable attorney" standard laid down in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, we decline to impose sanctions. "Sanctions are serious business. They deserve more thought than the choice of a salad dressing. `I'll have the sanctions, please. No, on second thought, bring me the balsamic; I'm trying to lose a few pounds.' . . ." (See Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 293.) Here, we cannot say that Hale's appeal was so unreasonable that "no reasonable attorney could have thought it meritorious." (In re Marriage of Flaherty, supra, 31 Cal.3d at p. 650.)
Both of Hale's arguments have something going for them. The choice of Children's Vision First as a beneficiary for the cy pres fund, for example, meant settlement money would be going to people who did not, by definition, buy the product — children whose parents can't afford eye exams are not going to be consumers of contact lens solution prior to any exam. And the $750,000 award, though reasonable given the ultimate result of a $125 an hour return, might be considered a tad high given that it means a recovery for the attorneys in excess of the total payout to the class. The trial court here thus did a pretty good job of splitting the difference and coming up with a reasonable attorney fee award.
So we affirm the judgment, but deny the motion for sanctions. Each side will bear its own costs on appeal.
RYLAARSDAM, ACTING P. J. and FYBEL, J., concurs.