Kimiko P. v. Alta California Regional Center ( 2021 )

1 F. Richard Ruderman (SB No. 142226) Christian M. Knox (SB No. 171780) 2 Ruderman & Knox, LLP 1300 National Drive, Ste. 120 3 Sacramento, CA 95834 Telephone: (916) 563-0100 4 Facsimile: (916) 563-0114 5 Daniel R. Shaw (SB No. 281387) daniel@shawfirm.com 6 Shaw Firm 3196 S. Higuera St. Suite E 7 San Luis Obispo, CA 93401 Telephone: (805) 439-4646 8 Facsimile: (805) 301-8030 9 Attorneys for Plaintiff 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 Kimiko P., a conserved adult; by and through CASE NO.: 2:19-cv-00068-KJM-CKD her conservators Mariko Peshon McGarry, 15 Randolph Peshon, and Teresa Peshon,, PLAINTIFF’S PETITION FOR 16 Plaintiffs, APPROVAL OF SETTLEMENT ON BEHALF OF A CONSERVED ADULT 17 v. 18 Alta California Regional Center, On My Own, and Placer ARC, 19 Defendants. 20 21 22 Plaintiff Kimiko P., by and through her conservators, petitions the Court for approval of 23 the parties’ proposed settlement of this matter on behalf of a conserved adult as to On My Own 24 Independent Living Services (“OMO”) and Alta California Regional Center (“ALTA”). 25 /// 26 /// 27 /// 28 1 Declaration of Daniel Shaw in Support of Plaintiff’s Motion for Order Confirming 2 Settlement 3 I, DANIEL SHAW, declare as follows: 4 1. I am an attorney duly licensed to practice in the State of California. I am one of the 5 attorneys representing Plaintiff herein. I have personal knowledge of the matters 6 declared herein and could testify truthfully thereto of called as a witness. 7 2. Interest of Kimiko P.’s Attorney Pursuant to Local Rule 202(c): 8 a. I was retained by Kimiko P.’s conservators to represent her. 9 b. This case was not referred to the Shaw Firm or Ruderman & Knox by any 10 Defendant. 11 c. The Shaw Firm or Ruderman & Knox has no relationship with any Defendant. 12 d. Our retainer agreement entitled us to take my attorneys’ fees or a percentage of 13 the net recovery, whichever is greater. We have elected to not take any fees 14 because of the small amount of this settlement. 15 3. On or about December, 2020, Plaintiff, OMO, and ALTA agreed to a global settlement of 16 all claims as discussed herein. 17 4. This Petition is being filed to finalized the settlement agreement which resolves all 18 disputes between the Parties through December 14, 2020. 19 Information Required By Local Rule 202(b)(2) 20 5. Kimiko P. is a conserved adult. 21 6. Kimiko P., by and through her conservators, asserted claims against Placer ARC for 22 alleged violations of Section 504 of the Rehabilitation Act of 1973, Retaliation under 23 Section 504 of the Rehabilitation Act of 1973, Negligent Supervision, General 24 Negligence, and the Unruh Civil Rights Act. 25 7. Kimiko P. sought damages for harm caused by the alleged actions/inactions of Placer 26 ARC, including compensatory damages, general damages, and special damages. 27 8. ALTA has been dismissed from Plaintiff’s case. 28 /// 1 9. Kimiko P.’s conservators have agreed to resolve claims against ALTA and OMO in the 2 amount of $15,000. 3 The Proposed Settlement 4 10. The Settlement Agreement resolved fully, finally, and forever any and all known and 5 unknown claims, rights, demands, or causes of action between Kimiko P., ALTA, and 6 OMO that were raised or could have been raised up to December 14, 2020. 7 a. Within in thirty days of approval of this Petition, OMO will issue a check in the 8 amount of $15,000 to be deposited into the Shaw Firm’s client trust account. 9 b. Kimiko P.’s conservators will establish an ABLE Savings Account. Once the 10 account is established, the Shaw Firm will deposit the funds into the account as 11 discussed herein. 12 c. The purpose of the ABLE Savings Account is to protect Kimiko P.’s ability to 13 continue to receive public benefits. The ABLE Savings Account will be 14 monitored by Kimiko P.’s conservators as they are required to do pursuant to this 15 conservatorship. 16 The Proposed Settlement is Fair to the Minor Plaintiff 17 11. “District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), 18 to safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 19 1177, 1181 (9th Cir.2011). “In the context of proposed settlements in suits involving 20 minor plaintiffs, this special duty requires a district court to ‘conduct its own inquiry to 21 determine whether the settlement serves the best interests of the minor.’” Id. (quoting 22 Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir.1978)). 23 12. When considering a proposed settlement in suits involving minor plaintiffs, the district 24 court is required to “conduct its own inquiry to determine whether the settlement serves 25 the best interests of the minor.” Id., (quoting Dacanay) In Robidoux, the Ninth Circuit 26 held that district courts should “limit the scope of their review to the question whether the 27 net amount distributed to each minor plaintiff in the settlement is fair and reasonable, in 28 light of the facts of the case, the minor’s specific claim, and recovery in similar cases.” 1 Id. at 1181–82. Further, the fairness of each minor plaintiff’s net recovery should be 2 evaluated “without regard to the proportion of the total settlement value designated for 3 adult co-plaintiffs or plaintiffs’ counsel— whose interests the district court has no special 4 duty to safeguard.” Id. at 1182 (citing Dacanay, 573 F.2d at 1078). 5 13. Kimiko P.’s conservators have determined they want to resolve Plaintiff’s case and move 6 forward in attempt to work with ALTA and focus on future programming for Kimiko P. 7 Kimiko P. is no longer living in a supported living setting on her own. Kimiko P. now 8 resides with her conservator where she can be kept safe. Given the unlikelihood of 9 success on the remaining issues in her case, Kimiko P.’s conservators prefer a resolution 10 so all Parties can move forward. 11 14. In accordance and based on the forgoing, the parties respectfully request that the Court 12 approve the proposed Settlement Agreement and the distribution of settlement funds as 13 described herein. 14 15. Plaintiff’s counsel respectfully requests that the Court approves the settlement on behalf 15 of Kimiko P. 16 I declare under penalty of perjury that the forgoing is true and correct and that is executed 17 in San Luis Obispo, California on March 2, 2021. 18 19 20 Respectfully submitted, 21 22 Dated: March 2, 2021 /S/ DANIEL R. SHAW Daniel R. Shaw 23 Attorney for Plaintiff 24 25 26 27 28 1 2 3 4 5 6 7 8 9 10 11 UNITED STATES DISTRICT COURT 12 EASTERN DISTRICT OF CALIFORNIA 13 14 Kimiko P., a conserved adult; by and through CASE NO.: 2:19-cv-00068-KJM-CKD her conservators Mariko Peshon McGarry, 15 Randolph Peshon, and Teresa Peshon,, ORDER FOR APPROVAL OF 16 Plaintiffs, SETTLEMENT ON BEHALF OF A CONSERVED ADULT 17 v. 18 Alta California Regional Center, On My Own, and Placer ARC, 19 Defendants. 20 21 22 Having read and considered the Plaintiff’s Petition for Approval of Kimiko P.’s Petition 23 For Approval of Settlement the Court finds good cause for the relief sought therein, it is hereby 24 ordered that: 25 1. The petition is granted and the Kimiko P.’s compromise is approved; 26 2. On My Own shall issue a check in the amount of $15,000 to the Shaw Firm. 27 3. Kimiko P.’s conservators will be directed to deposited the money in an ABLE Savings 28 Account; and 1 4. The parties are to file a stipulated dismissal within thirty days of delivery of the 2 settlement proceeds as to Placer ARC only. 3 IT IS SO ORDERED. 4 This order resolves ECF No. 75. The case was closed in error on March 23, 2021. 5 The court directs the Clerk of Court to reopen this case to allow for this order to be filed. 6 DATED: April 28, 2021. ________ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28