H.G. v. United States ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 H.G., by and through his Guardian ad Litem Case No. 1:22-cv-01133-JLT-HBK Yubiel Magana, 12 FINDINGS AND RECOMMENDATIONS Plaintiff, TO GRANT PETITION FOR APPROVAL 13 OF MINOR’S COMPROMISE 14 UNITED STATES OF AMERICA, (Doc. No. 27) 15 Defendant. 16 17 18 19 Before the Court is a Petition for Approval of Minor’s Compromise filed by minor 20 Plaintiff H.G., by and through his mother and guardian ad litem Yubiel Magana (“Plaintiff”).1 21 (Doc. No. 27). Having considered the unopposed petition, the terms of the settlement, and the 22 record in this matter, the undersigned finds that the proposed settlement agreement and the method 23 of disbursement is fair and reasonable. For the reasons that follow, the undersigned recommends 24 granting Plaintiff’s Petition for Minor’s Compromise.2 25 26 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2022). See also Doc. No. 28. 27 2 Because Defendant filed no opposition and the memorandum in support of the petition adequately sets forth the information required under Local Rule 202(b), there is good cause to approve the settlement 28 without a hearing. 1 I. BACKGROUND 2 On September 7, 2022, minor Plaintiff H.G., by and through his mother and guardian ad 3 litem Yubiel Magana, filed a Complaint alleging personal injuries to H.G. as a result of 4 negligence by a United States Postal Service employee. (See Doc. No. 1). On September 22, 5 2022, the Court appointed Yubiel Magana as H.G.’s guardian ad litem. (Doc. No. 6). 6 On July 6, 2023, the parties participated in a settlement conference before Magistrate 7 Judge Dennis M. Cota, and the parties reached a settlement. (Doc. No. 24). Plaintiff H.G., 8 through her guardian ad litem, filed the instant petition for minor’s compromise on August 3, 9 2023. (Doc. No. 27). The Court ordered Plaintiff to file a supplement in compliance with Local 10 Rule 202(b)(2), which was filed on September 18, 2023. (Doc. Nos. 29, 30). Defendant did not 11 file any opposition or response to either the petition or supplement. (See docket). 12 II. APPLICABLE LAW 13 The Local Rules for this district provide that “[n]o claim by or against a minor or 14 incompetent person may be settled or compromised absent an order by the Court approving the 15 settlement or compromise.” L.R. 202(b). The purpose of requiring the Court’s approval is to 16 provide an additional level of oversight to ensure that the child’s interests are protected. Toward 17 this end, the motion for approval of a proposed settlement shall be filed pursuant to Local Rule 18 230, and must disclose, among other things, the following: 19 the age and sex of the minor or incompetent, the nature of the causes of action to be settled or compromised, the facts and circumstances 20 out of which the causes of action arose, including the time, place and 21 persons involved, the manner in which the compromise amount or other consideration was determined, including such additional 22 information as may be required to enable the Court to determine the fairness of the settlement or compromise, and, if a personal injury 23 claim, the nature and extent of the injury with sufficient particularity to inform the Court whether the injury is temporary or permanent. 24 L.R. 202(b)(2). “When the minor or incompetent is represented by an attorney, it shall be 25 disclosed to the Court by whom and the terms under which the attorney was employed; whether 26 the attorney became involved in the application at the instance of the party against whom the 27 causes of action are asserted, directly or indirectly; whether the attorney stands in any relationship 28 1 to that party; and whether the attorney has received or expects to receive any compensation, from 2 whom, and the amount.” L.R. 202(c). 3 Federal Rule of Civil Procedure 17(c) similarly imposes on district courts a special duty to 4 safeguard the interests of litigants who are minors. Robidoux v. Rosengren, 638 F.3d 1177, 1181 5 (9th Cir. 2011). In the context of proposed settlements in suits involving minor plaintiffs, the 6 district court’s special duty requires it to “conduct its own inquiry to determine whether the 7 settlement serves the best interests of the minor.” Id. (quoting Dacanay v. Mendoza, 573 F.2d 8 1075, 1080 (9th Cir. 1978)). However, in Robidoux, the Ninth Circuit cautioned that this inquiry 9 “requires only that the district court consider whether the net recovery of each minor plaintiff is 10 fair and reasonable, without regard to the amount received by adult co-plaintiffs and what they 11 have agreed to pay plaintiffs' counsel” and “in light of the facts of the case, the minor’s specific 12 claim, and recovery in similar cases.” Id. at 1181-82 (holding that district court erred in denying 13 settlement based solely on the proportion of the settlement going to plaintiffs' counsel). 14 III. ANALYSIS 15 The petition for approval of the settlement on behalf of the minor H.G., along with the 16 supplemental disclosures ordered by the Court, set forth the information required by Local Rule 17 202(b)(2). Plaintiff H.G. is a male minor, presently nine years old, who asserts through his 18 guardian ad litem that he was injured as a result of negligence by a United States Postal Service 19 employee. (Doc. No. 27 at 5). The petition explains that on December 30, 2019, just before 2:00 20 p.m., H.G. was “ran over by a postal mail truck being operated by postal worker Jorge Arevalo. 21 The front of the mail truck struck H.G. and knocked him to the asphalt. As the mail truck 22 continued to move forward, its tires rolled over the wheels of the bike and crushed H.G. between 23 the undercarriage of the truck and the bike. H.G. and the bike were dragged over five feet as the 24 mail truck came to a stop on the shoulder. H.G. remembers being trapped and dragged.” (Id. at 25 3, 5). 26 H.G.’s uncle, Miguel Gutierrez, pulled H.G. out from under the mail truck. (Id. at 4-5). 27 H.G.’s aunt, Maria Ayala, called 911, but H.G. was too scared to get in the ambulance, and was 28 driven to Adventist Medical Center by Maria Ayala. (Id.). The hospital completed x-rays of 1 H.G.’s right wrist, right hand, and right femur; and CTs of his brain, facial bones, cervical spine, 2 chest, abdomen, and pelvis. The tests revealed loss of cervical lordosis consistent with a neck 3 sprain, and the CT of his liver revealed a large irregular hyperdense focus consistent with a 4 hematoma of the right lobe. (Id. at 5-6). H.G. was transferred to Valley Children’s Hospital with 5 suspected internal injuries, and testing indicated a significant laceration to his liver and a 6 punctured right lung. (Id. at 6). “H.G. was not only traumatized from being hit and trapped 7 underneath the mail truck, he was [also] in extreme pain, did not like the feeling of pain 8 medications, and just wanted to go home.” (Id.). H.G. was in the hospital until January 2, 2020, 9 and instructed to have no movement for 6 weeks and no heavy activity for 16 weeks. (Id.). 10 H.G.’s pulmonary symptoms resolved, but he continued to have gastrointestinal issues 11 including pain, diarrhea, difficulty controlling bowel movements, and stomach bloating. (Id. at 12 7). The initial petition indicates that H.G.’s stomach issues have resolved with time but he still 13 has nightmares and anxiety. (Id.). In the requested supplement, Petitioner responds that H.G.’s 14 physical conditions have resolved and his “current ongoing complaint is limited to residual 15 anxiety around cars”; but “[t]here are no medical records and/or expert reports that exist which 16 support the minor’s ongoing anxiety.” (Doc. No. 30 at 1). 17 A. Terms of Settlement 18 The total settlement in this case is $90,000.00. (Doc. No. 27 at 2, 9). According to the 19 petition, Medi-Cal and Adventist Health are seeking reimbursement for benefits paid for the 20 medical treatment of H.G. in the amount of $9,810.58 and $15,000.00, respectively; and CRME 21 has an outstanding balance of $783.70. (Id. at 8, 11). Thus, after the payment of attorney fees 22 and costs, discussed below, H.G. will receive a $39,825.83 share of the settlement proceeds. (Id. 23 at 9). Petitioner requests the Court to approve purchase of an annuity from JMW Settlements 24 LLC in the amount of $30,000.00 for the benefit of the minor which will yield a total payout of 25 $48,000.00 over a 3-year period when the minor turns 19. (Id. at 9, 39). Petitioner additionally 26 requests that $1,000.00 of the settlement funds be released to guardian ad litem and H.G.’s 27 mother Yubiel Magana to obtain a place of residence, and the remaining balance of $8,825.83 be 28 placed in a blocked account at Noble Credit Union in Fresno, California, where the balance 1 cannot be withdrawn prior to H.G.’s eighteenth birthday absent court approval. (Doc. No. 27 at 2 9-10, 13-14, ¶9; Doc. No. 30). 3 B. Proposed Attorney Fees and Costs 4 Plaintiff is represented by Rene Turner Sample of Freedman Law. Plaintiff H.G., through 5 his guardian ad litem, entered into a retainer agreement with his attorney in which he agreed to 25% 6 attorney fees after costs. (Doc. No. 27 at 19, 41-49). Thus, out of H.G.’s share of the settlement 7 proceeds, Plaintiff’s counsel will be awarded $2,079.89 in costs and $22,500.00 in attorney fees. 8 (Id. at 9). Plaintiff’s counsel represents to the Court that she did not become involved in this 9 matter at the request of any party against whom the cause of action is asserted, does not represent 10 and is not employed by any party or insurance carrier involved in the present matter, and the only 11 compensation Plaintiff’s counsel will receive is the agreed upon contingency fee requested. (Id. 12 at 11-12). 13 Based upon the actions taken by counsel, and the fact that Plaintiff’s guardian ad litem 14 indicates her assent to the fees and costs requested, the Court finds the award is fair and 15 reasonable. (See id. at 14, ¶11). 16 C. Recovery in Similar Actions 17 As noted above, the Court must consider the outcome of similar cases to determine 18 whether the sum to settle the minor’s claims is reasonable. See Robidoux, 638 F.3d at 1181; 19 Salmeron v. U.S., 724 F.2d 1357, 1363 (9th Cir. 1983) (“a court must independently investigate 20 and evaluate any compromise or settlement of minor’s claims to assure itself that the minor’s 21 interests are protected” even if the settlement is recommended by the minor’s parent or guardian 22 ad litem). 23 Here, neither the petition nor the supplement identifies similar actions to support approval 24 of the minor’s compromise. (See generally Doc. Nos. 27, 30). Regardless, after independent 25 review of similar actions in this district, the undersigned finds the recovery is appropriate 26 considering the amounts received in other actions. See, e.g., D.B. v. City of Sacramento, 2020 27 WL 8910843 (E.D. Cal. Apr. 16, 2020) (approving $60,000.00 settlement award to minor hit by 28 1 police vehicle that jumped onto the curb, resulting in minimal physical injury including scrapes, 2 bruises, and a sprained ankle); Rivett v. United States of America, 2023 WL 4238909 (E.D. Cal. 3 June 28, 2023) (approving $64,000.00 settlement award to minor involved in motor vehicle 4 accident with AmeriCorps vehicle); De La Cruz v. U.S. Postal Service, 2010 WL 319670 (E.D. 5 Cal. Jan. 20, 2010), adopted by 2010 WL 624432 (E.D. Cal. Feb. 17, 2010) (approving award of 6 $5,000.00 to each minor involved in motor vehicle accident with vehicle driven by United States 7 Postal Service employee where liability was not clear and both plaintiffs made a full recovery). 8 Based on the information provided in the petition, supplement, the supporting documents, 9 and considering the totality of the facts and circumstances of this case, the undersigned finds the 10 settlement serves the best interests of the minor plaintiff H.G. and is fair and reasonable in light of 11 the facts of the case, the specific claim, and recoveries in similar cases. 12 Accordingly, IT IS RECOMMENDED: 13 1. The Petition for Approval of Minor’s Compromise (Doc. No. 27) be APPROVED IN 14 FULL as fair and reasonable; 15 2. An annuity be purchased from JMW Settlements LLC in the amount of $30,000.00 for 16 the benefit of the minor which will yield a total payout of $48,000.00 over a 3-year 17 period when the minor turns 19; 18 3. $1,000.00 of the settlement proceeds be released to guardian ad litem and H.G.’s 19 mother Yubiel Magana to be used to obtain a place of residence; 20 4. Minor’s net compensation of $8,825.83 be placed in a blocked account at Noble Credit 21 Union in Fresno, California where it cannot be withdrawn until H.G’s eighteenth 22 birthday, absent court order; and 23 5. The parties be DIRECTED to file with the Court a stipulation for dismissal of the 24 action with prejudice, and lodge a separate order, no later than 45 days after these 25 findings and recommendations are adopted. 26 NOTICE TO PARTIES 27 These findings and recommendations will be submitted to the United States district judge 28 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 1 | days after being served with these findings and recommendations, a party may file written 2 | objections with the court. The document should be captioned “Objections to Magistrate Judge’s 3 | Findings and Recommendations.” Parties are advised that failure to file objections within the 4 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 5 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 6 Dated: _ November 6, 2023 Mibu □ Zh. foareh Hack 8 HELENA M. BARCH-KUCHTA 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28