K.B. v. Garfield Beach CVS, L.L.C. ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 FOR THE EASTERN DISTRICT OF CALIFORNIA 6 7 K.B., a minor child, individually and by Case No. 1:19-cv-00507-AWI-BAM and through her GUARDIAN AD LITEM, 8 JOANNA BARRIOS, and JOANNA FINDINGS AND RECOMMENDATIONS BARRIOS, an individual, REGARDING PETITION FOR 9 APPROVAL OF MINOR’S COMPROMISE Plaintiffs, 10 (Doc. No. 11) vs. 11 GARFIELD BEACH CVS, LLC, et al., 12 Defendants. 13 14 15 On July 29, 2020, Plaintiff K.B., a minor child, individually and by and through her guardian 16 ad litem Joanna Barrios, and Joanna Barros (“Plaintiffs”) filed a copy of a petition previously filed in 17 state court approving a compromise with Defendant Garfield Beach CVS, LLC (“Defendant”) 18 pursuant to Local Rule 202(b)(1). (Doc. No. 57.) The petition was not set for hearing and the matter 19 was taken under submission. Local Rules 202(b)(1), 230(g). 20 Having considered the petition, the terms of the settlement, and the record in this matter, the 21 Court finds that the proposed settlement agreement is fair and reasonable. For the reasons that follow, 22 the Court RECOMMENDS that Plaintiffs’ Petition for Compromise of Disputed Claim of Minor be 23 APPROVED and GRANTED. 24 I. FACTUAL BACKGROUND 25 Plaintiffs initiated this action on February 26, 2019, in the Superior Court of California for the 26 County of Tulare. (Doc. No. 1.) The matter was removed to this Court on April 19, 2019. (Id.) The 27 complaint asserts claims for medical malpractice and negligent infliction of emotional distress arising 28 1 out of Defendant providing Plaintiff K.B., a minior, with the wrong dosage of a prescription 2 medication, Adderall or the generic substitute. (Id.) On February 27, 2019, the state court appointed 3 Joanna Barrios as K.B.’s guardian ad litem. (Id.) On June 15, 2020, Plaintiffs filed a Petition to 4 Approve Compromise of Disputed Claim of Minor with the state court. (Doc. No. 11.) The state court 5 approved the petition on June 30, 2020, and ordered the settlement proceeds payable to Plaintiff K.B. 6 to be deposited into a blocked account. (Doc. Nos. 11-1, 11-2) 7 Terms of Settlement 8 Defendant has agreed to pay $27,500.00 to settle this action. According to the petition, 9 $10,264.86 of this amount is apportioned to counsel for Plaintiff, representing $9,157.50 in attorneys’ 10 fees and $1,107.36 in costs, $2,530.35 is apportioned to reimbursement to Medi-Cal in satisfaction of 11 its lien rights for medical expenses, and $14,704.79 is apportioned to the minor Plaintiff. The state 12 court has ordered that K.B.’s portion of the settlement funds be deposited in an interest-bearing, 13 federally insured blocked account and no withdrawals of principal or interest to be made without a 14 written order from the state court. 15 II. DISCUSSION 16 A. Relevant Standards 17 No compromise or settlement of a claim by a minor is effective unless it is approved by the 18 Court. Local Rule 202(b). In actions in which the minor is represented by an appointed representative 19 pursuant to appropriate state law, the settlement or compromise must first be approved by the state 20 court having jurisdiction over the personal representative. Local Rule 202(b)(1). Following such 21 approval, a copy of the order and all supporting and opposing documents filed with the state court 22 shall be filed with this Court. Id. The Court may either approve the settlement or compromise without 23 hearing or calendar the matter for hearing. Id. Additionally, when, as here, the minor is represented by 24 an attorney, the representation must be disclosed to the Court, including the terms of employment and 25 whether the attorney became involved in the application at the instance of the party against whom the 26 causes of action are asserted, whether the attorney stands in any relationship to that party, and whether 27 the attorney has received or expects to receive any compensation, from whom, and the amount. Local 28 Rule 202(c). 1 Federal Rule of Civil Procedure 17(c) also imposes on district courts a special duty to 2 safeguard the interests of litigants who are minors. Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th 3 Cir. 2011). In the context of proposed settlements in suits involving minor plaintiffs, the district 4 court’s special duty requires it to “conduct its own inquiry to determine whether the settlement serves 5 the best interests of the minor.” Id. (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 6 1978)). However, in Robidoux, the Ninth Circuit cautioned that this inquiry “requires only that the 7 district court consider whether the net recovery of each minor plaintiff is fair and reasonable, without 8 regard to the amount received by adult co-plaintiffs and what they have agreed to pay plaintiffs' 9 counsel.” Id. at 1182 (holding that district court erred in denying settlement based solely on the 10 proportion of the settlement going to plaintiffs' counsel). 11 B. Analysis 12 Here, the petition explains that K.B. is a 7-year-old female suing through her guardian ad litem 13 and parent, Joanna Barrios. The causes of action to be compromised are: 1) medical malpractice; and 14 2) negligent infliction of emotional distress. On or about September 18, 2017, Joanna Barrios filled 15 K.B.’s prescription for Adderall (or the generic substitute) with Defendant and Defendant provided the 16 wrong dosage of the prescription. Specifically, Defendant provided K.B. with 30 mg capsules, when 17 the prescribing physician only prescribed 5 mg capsules. K.B. ingested the 30 mg capsules on 18 September 19, 2017, causing immediate and severe physical and mental injuries which required 19 emergency care. K.B.’s injuries included tachycardia, vomiting, nausea, hallucinations, and trouble 20 breathing, as well as significant pain and emotional distress. She received medical care from Sierra 21 View Medical Center and Kaweah Delta Health Care Clinics and her medical expenses totaled 22 $6,849.73. K.B.’s medical expenses were paid by Med-Cal. In full satisfaction of its lien rights, Medi- 23 Cal agreed to accept reimbursement in the amount of $2,520.35. K.B. has recovered completely from 24 the effects of her injuries and there are no permanent injuries. 25 Plaintiffs are represented by attorneys D. Aaron Brock, Timothy J. Gonzales, and Sean T. 26 Cook of Brock & Gonzales, LLP. Plaintiffs’ attorneys were first retained in approximately September 27 of 2017 and they have represented Plaintiffs through the pendency of this case. The retainer 28 agreement provides for a contingency fee of 40% but Plaintiffs’ attorneys have voluntarily reduced 1 their fee and seek a contingency fee of 33 and 1/3 % of the recovery. Plaintiffs’ attorneys have 2 advanced all costs in connection with this action. Counsel represents that they did not become 3 involved in this matter at the instance of any party against whom the causes of action are asserted and 4 they have not received any compensation for their services to date. 5 On June 30, 2020, the state court approved Plaintiffs’ petition. (Doc. No. 11-1.) Having 6 considered the petition and relevant state court documents, the Court finds that the total settlement 7 amount of $27,500.00 and the distribution of $14,704.79 to the minor Plaintiff to be fair and 8 reasonable in light of the facts of the case and the minor’s specific claims. Additionally, the state court 9 has ordered the settlement funds payable to K.B. to be deposited in to a blocked account, with proof of 10 deposit to be filed with the state court. (Doc. Nos. 11-1, 11-2.) Thus, the method of disbursement of 11 the settlement likewise appears fair and reasonable. Accordingly, the Court will recommend approval 12 of the petition. 13 III. CONCLUSION AND RECOMMENDATION 14 Based on the foregoing, the Court HEREBY RECOMMENDS as follows: 15 1. Plaintiffs’ petition for approval of minor’s compromise (Doc. No. 11) be GRANTED, 16 and the terms of the settlement, including payment of attorneys’ fees, costs, and medical expenses, be 17 APPROVED as fair and reasonable; 18 2. Within fourteen (14) days of entry of an order adopting these findings and 19 recommendations, Plaintiffs be directed to file with this Court proof of deposit of the $14,704.79 20 distribution to K.B. in a blocked account pursuant to the state court’s order (Doc. No. 11-2); and 21 3. The parties be directed to file appropriate papers to dismiss or conclude this action in 22 its entirety within twenty-one (21) days of submission of proof of deposit. 23 These Findings and Recommendations will be submitted to the United States District Judge 24 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 25 days after being served with these Findings and Recommendations, the parties may file written 26 objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 27 Findings and Recommendations.” The parties are advised that failure to file objections within the 28 specified time may result in the waiver of the “right to challenge the magistrate’s factual findings” on 1 appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 2 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. 5 Dated: August 21, 2020 /s/ Barbara A. McAuliffe _ 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28