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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 15 16 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 17 Plaintiffs, 18 v. 19 20 21 22 23 24 25 26 27 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. _______________________________/ 28 1 1 ----oo0oo---- 2 Plaintiffs Heather Marie Ewing and Mark Lee Ewing 3 (“Ewing Parents”) and their minor children Katelyn Joyner 4 Ewing-Munnerlyn, Rachel Marie Ewing, and Savannah Jailyn Ewing 5 (“Ewing Children”) initiated this action under 42 U.S.C. § 1983 6 against defendants City of Stockton and police officers William 7 Jerome Hutto, Steven McCarthy, and John J. Reyes (“City 8 Defendants”) and district attorneys John D. Phillips and Lester 9 F. Fleming. Plaintiffs allege that defendants violated their 10 constitutional rights throughout a series of events culminating 11 in the arrest of the Ewing Parents on murder charges that were 12 ultimately dropped. The Ewing Children allege that they were 13 subjected to negligent treatment and excessive force by the SWAT 14 Team during the November 8, 2004, raid and search of their home. 15 Although the court has not yet addressed the merits of 16 the Ewing Children’s claims, the court has addressed the merits 17 of the Ewing Parents’ claims in two prior orders, Ewing v. City 18 of Stockton, No. Civ. 2:05-2270, 2008 WL 366156 (E.D. Cal. Feb. 19 8, 2009), rev’d in part, Ewing v. City of Stockton, 588 F.3d 1218 20 (9th Cir. 2009); Ewing v. City of Stockton, No. Civ. 2:05-2270, 21 2010 WL 3516351 (E.D. Cal. Sept. 2, 2010). Now, the Ewing 22 Parents and Children have reached a settlement with the City 23 Defendants and seek the court’s approval of the settlement as to 24 the Ewing Children. 25 The settlement reached with the City Defendants is in 26 the amount of $550,000 and the proposed distribution and amounts 27 attributable to the Ewing Children’s claims and representation is 28 2 1 as follows: 2 • Payment of $26,000.00 to each of the Ewing Children, to 3 be placed in a separate trust account designated for 4 each child, as part of the total of $197,473.00 paid to 5 plaintiffs under the settlement; 6 • Payment of $88,000.00 in attorneys’ fees to plaintiffs’ 7 counsel Gross Belsky Alonso LLP (“GBA”), as part of the 8 total of $220,000.00 in attorney’s fees GBA will 9 receive from the settlement; 10 • Reimbursement of $39,000.00 to GBA for costs incurred 11 in prosecuting this matter on behalf of the Ewing 12 Children, as part of the total of $97,527.00 in costs 13 GBA will receive from the settlement; 14 • Payment of $14,000.00 to GBA, as part of the total of 15 $35,000.00 GBA will receive from the settlement, to be 16 held in reserve against future costs associated with 17 GBA’s continued representation of plaintiffs in their 18 ongoing action against Fleming, with the understanding 19 that any money remaining after resolution of 20 plaintiffs’ claims against Fleming and payment of 21 outstanding expenses incurred by GBA will be returned 22 to the Ewing Children in the amount of their percentage 23 share, or 13.3 percent each. 24 “It has long been established that the court in which a 25 minor’s claims are being litigated has a duty to protect the 26 minor’s interests.” 27 1363 (9th Cir. 1983). 28 suits involving minor plaintiffs, this special duty requires a Salmeron v. United States, 724 F.2d 1357, “In the context of proposed settlements in 3 1 district court to conduct its own inquiry to determine whether 2 the settlement serves the best interests of the minor.” 3 v. Rosengren, --- F.3d ----, ----, 2011 WL 1136241, at *3 (9th 4 Cir. 2011) (internal quotation marks omitted); see also E.D. 5 Local R. 202(b) (“No claim by or against a minor or incompetent 6 person may be settled or compromised absent an order by the Court 7 approving the settlement or compromise.”). 8 proposed settlement, district courts can consider “whether the 9 net amount distributed to each minor plaintiff in the settlement Robidoux In reviewing a 10 is fair and reasonable, in light of the facts of the case, the 11 minor’s specific claim, and recovery in similar cases.” 12 Robidoux, 2011 WL 1136241, at *3. 13 Having reviewed the proposed settlement and the 14 psychological evaluations of the Ewing Children from 2007 15 assessing the psychological injuries the children suffered as a 16 result of the raid of their home and separation from their 17 parents, the court concludes that the proposed settlement is fair 18 and reasonable. 19 in existing trusts for each child, Mark Ewing has represented 20 that the $119,473.00 that will remain in the Ewing Parents’ 21 control will be used to “pay outstanding family bills and fund 22 psychological treatment for the children.” 23 psychological evaluations indicate the need for the Ewing 24 Children to receive treatment and express concern that they did 25 not receive consistent treatment after the incident occurred in 26 2004, the court recognizes the importance of the children 27 receiving proper treatment, albeit over seven years late. 28 /// In addition to the $26,000.00 that will placed 4 As the 2007 1 IT IS THEREFORE ORDERED that the petition to approve 2 settlement of the Ewing Children’s claims against the City 3 Defendants be, and the same hereby is, GRANTED. 4 DATED: May 11, 2011 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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