Ewing et al v. State of California et al
Filing
149
MEMORANDUM and ORDER re Settlement of minors' claims signed by Judge William B. Shubb on 5/11/2011. The 145 Petition to Approve Settlement of Ewing children's claims against City defendants is GRANTED. (Marciel, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo----
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HEATHER MARIE EWING; MARK LEE
EWING; KATELYN JOYNER EWINGMUNNERLYN, a minor by and
through her father MARK LEE
EWING; RACHEL MARIE EWING, a
minor by and through her parents
HEATHER MARIE EWING and MARK LEE
EWING; and SAVANNAH JAILYN
EWING, a minor by and through
her parents HEATHER MARIE EWING
and MARK LEE EWING,
NO. CIV. 2:05-2270 WBS GGH
MEMORANDUM AND ORDER RE:
SETTLEMENT OF MINORS’ CLAIMS
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Plaintiffs,
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v.
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CITY OF STOCKTON; DISTRICT
ATTORNEY JOHN D. PHILLIPS;
DEPUTY DISTRICT ATTORNEY LESTER
F. FLEMING; OFFICER WILLIAM
JEROME HUTTO, individually and
in his capacity as a City of
Stockton Police Officer; OFFICER
STEVEN McCARTHY, individually
and in his capacity as a City of
Stockton Police Officer; and
OFFICER JOHN J. REYES,
individually and in his capacity
as a City of Stockton Police
Officer,
Defendants.
_______________________________/
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Plaintiffs Heather Marie Ewing and Mark Lee Ewing
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(“Ewing Parents”) and their minor children Katelyn Joyner
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Ewing-Munnerlyn, Rachel Marie Ewing, and Savannah Jailyn Ewing
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(“Ewing Children”) initiated this action under 42 U.S.C. § 1983
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against defendants City of Stockton and police officers William
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Jerome Hutto, Steven McCarthy, and John J. Reyes (“City
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Defendants”) and district attorneys John D. Phillips and Lester
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F. Fleming.
Plaintiffs allege that defendants violated their
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constitutional rights throughout a series of events culminating
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in the arrest of the Ewing Parents on murder charges that were
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ultimately dropped.
The Ewing Children allege that they were
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subjected to negligent treatment and excessive force by the SWAT
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Team during the November 8, 2004, raid and search of their home.
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Although the court has not yet addressed the merits of
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the Ewing Children’s claims, the court has addressed the merits
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of the Ewing Parents’ claims in two prior orders, Ewing v. City
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of Stockton, No. Civ. 2:05-2270, 2008 WL 366156 (E.D. Cal. Feb.
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8, 2009), rev’d in part, Ewing v. City of Stockton, 588 F.3d 1218
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(9th Cir. 2009); Ewing v. City of Stockton, No. Civ. 2:05-2270,
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2010 WL 3516351 (E.D. Cal. Sept. 2, 2010).
Now, the Ewing
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Parents and Children have reached a settlement with the City
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Defendants and seek the court’s approval of the settlement as to
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the Ewing Children.
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The settlement reached with the City Defendants is in
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the amount of $550,000 and the proposed distribution and amounts
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attributable to the Ewing Children’s claims and representation is
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as follows:
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Payment of $26,000.00 to each of the Ewing Children, to
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be placed in a separate trust account designated for
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each child, as part of the total of $197,473.00 paid to
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plaintiffs under the settlement;
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•
Payment of $88,000.00 in attorneys’ fees to plaintiffs’
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counsel Gross Belsky Alonso LLP (“GBA”), as part of the
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total of $220,000.00 in attorney’s fees GBA will
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receive from the settlement;
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Reimbursement of $39,000.00 to GBA for costs incurred
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in prosecuting this matter on behalf of the Ewing
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Children, as part of the total of $97,527.00 in costs
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GBA will receive from the settlement;
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Payment of $14,000.00 to GBA, as part of the total of
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$35,000.00 GBA will receive from the settlement, to be
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held in reserve against future costs associated with
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GBA’s continued representation of plaintiffs in their
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ongoing action against Fleming, with the understanding
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that any money remaining after resolution of
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plaintiffs’ claims against Fleming and payment of
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outstanding expenses incurred by GBA will be returned
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to the Ewing Children in the amount of their percentage
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share, or 13.3 percent each.
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“It has long been established that the court in which a
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minor’s claims are being litigated has a duty to protect the
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minor’s interests.”
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1363 (9th Cir. 1983).
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suits involving minor plaintiffs, this special duty requires a
Salmeron v. United States, 724 F.2d 1357,
“In the context of proposed settlements in
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district court to conduct its own inquiry to determine whether
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the settlement serves the best interests of the minor.”
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v. Rosengren, --- F.3d ----, ----, 2011 WL 1136241, at *3 (9th
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Cir. 2011) (internal quotation marks omitted); see also E.D.
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Local R. 202(b) (“No claim by or against a minor or incompetent
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person may be settled or compromised absent an order by the Court
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approving the settlement or compromise.”).
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proposed settlement, district courts can consider “whether the
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net amount distributed to each minor plaintiff in the settlement
Robidoux
In reviewing a
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is fair and reasonable, in light of the facts of the case, the
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minor’s specific claim, and recovery in similar cases.”
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Robidoux, 2011 WL 1136241, at *3.
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Having reviewed the proposed settlement and the
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psychological evaluations of the Ewing Children from 2007
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assessing the psychological injuries the children suffered as a
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result of the raid of their home and separation from their
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parents, the court concludes that the proposed settlement is fair
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and reasonable.
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in existing trusts for each child, Mark Ewing has represented
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that the $119,473.00 that will remain in the Ewing Parents’
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control will be used to “pay outstanding family bills and fund
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psychological treatment for the children.”
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psychological evaluations indicate the need for the Ewing
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Children to receive treatment and express concern that they did
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not receive consistent treatment after the incident occurred in
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2004, the court recognizes the importance of the children
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receiving proper treatment, albeit over seven years late.
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///
In addition to the $26,000.00 that will placed
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As the 2007
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IT IS THEREFORE ORDERED that the petition to approve
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settlement of the Ewing Children’s claims against the City
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Defendants be, and the same hereby is, GRANTED.
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DATED:
May 11, 2011
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