Brown et al v. City of Stockton et al

Filing 134

ORDER signed by Magistrate Judge Kendall J. Newman on 3/9/2020 APPROVING 131 Amended Minor's Compromise. (Huang, H)

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JOHN L. BURRIS, ESQ., SBN 69888
BEN NISENBAUM, ESQ., SBN 222173
JAMES COOK, ESQ., SBN 300212
LAW OFFICES OF JOHN L. BURRIS
Airport Corporate Center
7677 Oakport Street, Suite 1120 Oakland, CA 94621
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWNA BROWN, individually and as
successor-in-interest for Decedent LUTHER
BROWN; S.S.J., a minor, by and through her
guardian ad litem, SHAWNA BROWN; D.P., a
minor, by and through her guardian ad litem,
RITA ALMENDAREZ; S.S.J., a minor, by and
through her guardian ad litem, RITA
ALMENDAREZ; D.P., a minor, by and through
his guardian ad litem, RITA ALMENDAREZ;
S.S.J., a minor, by and through her guardian ad
litem, MAURRECE GALE JOHNSON; and
QUEEN E. BROWN, individually.

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Case No. 2-13-CV-01007-KJM-KJN
AMENDED PETITION APPOINTING
GUARDIAN AD LITEM AND APPROVING
MINOR’S COMPROMISE FOR MINOR
PLAINTIFF S.S.J. AND ORDER
No hearing date set
Hon. Kendall J. Newman
United States Magistrate Judge

Plaintiffs,
v.
CITY OF STOCKTON, a municipal corporation;
WESLEY GRINDER, individually; RYAN
TAIRIOL individually; LOREEN GAMBOA,
individually; ‘FNU’ SCOTT, individually; and
DOES 1-50, inclusive, individually,

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Defendants.

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Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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Petitioner MAURRECE GALE JOHNSON respectfully represents:

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1.

Petitioner MAURRECE GALE JOHNSON is the natural mother of Minor Plaintiff

S.S.J. Minor Plaintiff S.S.J. was born on xxxxxxx and is presently nine years old.

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2.

Minor Plaintiff S.S.J. has a Fourteenth Amendment substantive due process cause of

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action for interference with familial relationship is a co-successor-in-interest on the Fourth

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Amendment claim. Due to the CITY’s bankruptcy, there are not state law claims. All Plaintiffs have

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the same Fourteenth Amendment claim, while Plaintiffs SHAWNA BROWN (Decedent’s wife) and

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all Minor Plaintiffs have claims under the Fourth Amendment as co-successors-in-interest to

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Decedent.

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3.

Plaintiffs’ causes of action arise out an incident that occurred on April 6, 2012, in

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which Decedent LUTHER BROWN died after being shot numerous times by Defendants GRINDER

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and TAIRIOL.

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4.

No previous petition for appointment of Guardian Ad Litem has been filed in this

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Petitioner is willing to serve as the minor’s Guardian Ad Litem. Petitioner is fully

matter.

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competent to understand and protect the rights of the minor, and has no interest adverse to that of the

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minor.

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6.

Petitioner requests that she be appointed Guardian Ad Litem for her daughter, as

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denoted above, to prosecute the above-described causes of action on behalf of her daughter, as

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denoted above, and for such other relief as the Court may deem just and proper.

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7.

The parties in this case have reached settlement in this matter. The total settlement of

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the case is in the amount of $550,000.00, including all costs and attorneys’ fees. The parties have

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agreed on apportionment of the settlement. Of the total gross settlement amount, Minor Plaintiff

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S.S.J.’s gross settlement shall be $71,500.00 (13% of the total settlement).

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a.

Attorney fees for Minor Plaintiff S.S.J. shall be at 25% of her total gross

recovery, in the amount of $17,875.00, pursuant to the contingency fee agreement in this case.

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Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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b.

Proportionate with Minor Plaintiff S.S.J.’s share of the $550,000.00 recovery,

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Minor Plaintiff shall bear 13% of the total $13,280.17 in litigation costs incurred by her

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counsel in this action: $1,726.42.

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c.

Minor Plaintiff S.S.J.’s net settlement is in the amount of $51,898.58

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d.

Of Minor Plaintiff S.S.J.’s net settlement, $10,000.00 shall be place in an

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FDIC insured court-blocked account, with distributions made by Court order, and as follows:

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on each of Minor Plaintiff S.S.J.’s birthdays until she reaches age 17 (xxxxxxx), Minor

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Plaintiff shall receive disbursement from the court-blocked account in the amount of $500.

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All funds remaining in this FDIC insured court-blocked account, if any, shall be made

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available to Minor Plaintiff on her 18th birthday (xxxxxxx).

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8.

The structured settlement will be executed as follows:

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9.

Defendant(s) shall arrange for the purchase of a tax-free structured settlement

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annuity policy from United of Omaha Life Insurance Company, through Horacio Lleverino of
Settlement Planners, Inc. in the sum of $41,898.58 (includes $100 assignment fee for each child).
10.

Defendant(s) shall execute a Settlement Agreement and Release and execute a

“Qualified Assignment” of its obligation to make periodic payments pursuant thereto in compliance
with IRC Section 104(a)(2) and Section 130(c) of the Internal Revenue Code of 1986, as amended.
Said assignment shall be made to Mutual of Omaha Structured Settlement Company

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(“MOSSCO”) (“Assignee”).

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$41,898.58 through United of Omaha Life Insurance Company which is rated A+ (Superior)

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Financial Size XV through A.M. Best. Said annuity shall provide the following guaranteed Periodic

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Payments:

Assignee shall purchase a structured settlement annuity for

a. The following periodic payments will be made by United of Omaha Life Insurance

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Company, payable to S.S.J.

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b. Guaranteed lump sum payment of $25,000.00 payable at age 25 (on xxxxxxx);

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c. Guaranteed lump sum payment of $50,040.61 payable at age 30 (on xxxxxxx).

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11.

This petition was prepared by the Law Offices of John L. Burris, the lead counsel

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representing plaintiff in this action. Benjamin Nisenbaum, Esq. and James Cook, Esq. of the Law

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Offices of John L. Burris also represents plaintiff and is in agreement with the terms of this Petition.
John L. Burris, Esq., Benjamin Nisenbaum, Esq., James Cook, Esq. hereby represent to the Court that
Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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they became involved in this case at the request of plaintiffs, and have not received, and do not

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expect to receive any compensation for their services in connection with this action from any person

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other than the parties whom they represent in this action.

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12.

Petitioner and her counsel have made a careful and diligent inquiry and investigation

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to ascertain the facts relating to the subject incidents, the responsibility therefore, and the nature and

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extent of injury to the Minor Plaintiff, and fully understand that if the compromise herein proposed is

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approved by the Court and is consummated, said Minor Plaintiff will be forever barred and prevented

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from seeking any further recovery of compensation as against all Defendants in this action, even if

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said minor’s losses and injuries might in the future prove to be more serious than they are now

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thought to be.
13.

Petitioner recommends this compromise settlement to the Court as being fair,

reasonable, and in the best interests of said Minor Plaintiff.

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I declare under penalty of perjury that the foregoing is true and correct.

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Dated: March 9, 2020

/s/ Benjamin Nisenbaum
Ben Nisenbaum
Attorney for Plaintiffs

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Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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JOHN L. BURRIS, ESQ., SBN 69888
BEN NISENBAUM, ESQ., SBN 222173
JAMES COOK, ESQ., SBN 300212
LAW OFFICES OF JOHN L. BURRIS
Airport Corporate Center
7677 Oakport Street, Suite 1120 Oakland, CA 94621
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
Email: [e-mail]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHAWNA BROWN, individually and as
successor-in-interest for Decedent LUTHER
BROWN; A.B., a minor, by and through her
guardian ad litem, SHAWNA BROWN; D.P., a
minor, by and through her guardian ad litem,
RITA ALMENDAREZ; A.B., a minor, by and
through her guardian ad litem, RITA
ALMENDAREZ; D.P., a minor, by and through
his guardian ad litem, RITA ALMENDAREZ;
S.S.J., a minor, by and through her guardian ad
litem, MAURRECE GALE JOHNSON; and
QUEEN E. BROWN, individually.

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Case No. 2-13-CV-01007-KJM-KJN
ORDER APPROVING MINOR S.S.J.’s
AMENDED COMPROMISE
Hon. Kendall J. Newman
United States Magistrate Judge

Plaintiffs,
v.
CITY OF STOCKTON, a municipal corporation;
WESLEY GRINDER, individually; RYAN
TAIRIOL individually; LOREEN GAMBOA,
individually; ‘FNU’ SCOTT, individually; and
DOES 1-50, inclusive, individually,

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Defendants.

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Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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ORDER
The Court hereby approves the Amended Petition to Compromise Minor S.S.J.., and
orders as follows:

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1. Payment of Fees and Expenses on Behalf of Minor, S.S.J.
a. Attorney’s fees payable to the Law Offices of John L. Burris:
$17,875.00
2. Balance

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From the net recovery $41,898.58 will be placed in a structured settlement account. (See
attached as Exhibit A). The remaining $10,000.00 shall be place in an FDIC insured court-blocked
account, with distributions made by Court order, and as follows: on each of Minor Plaintiff S.S.J.’s
birthdays until she reaches age 17 (xxxxxxx), Minor Plaintiff shall receive disbursement from the
court-blocked account in the amount of $500. All funds remaining in this FDIC insured court-blocked
account, if any, shall be made available to Minor Plaintiff on her 18th birthday.
3. Structured Settlement
Payment by Defendant(s) in the sum of $41,898.58 (includes $100 assignment fee for each
child) to Mutual of Omaha Structured Settlement Company (“MOSSCO”) to provide for the taxfree structured settlement set forth below (“Periodic Payments”) and attached as Exhibit A.
The sum of $41,898.58 is to be used by Defendant(s) to arrange for the purchase of a tax-free
structured settlement annuity policy from United of Omaha Life Insurance Company, through Horacio
Lleverino of Settlement Planners, Inc.

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Defendant(s) shall execute a Settlement Agreement and Release and execute a “Qualified

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Assignment” of its obligation to make periodic payments pursuant thereto in compliance with IRC Section

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104(a)(2) and Section 130(c) of the Internal Revenue Code of 1986, as amended. Said assignment shall be
made to Mutual of Omaha Structured Settlement Company (“MOSSCO”) (“Assignee”). Upon doing so,
Defendant(s) will no longer be obligated to make the future periodic payments and the Assignee will be the
Plaintiff’s sole obligor with respect to the future periodic payments, and Defendant(s) will have no further
obligations whatsoever to the Plaintiff. The Assignee shall purchase a structured settlement annuity for

Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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$41,898.58 through United of Omaha Life Insurance Company which is rated A+ (Superior) Financial

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Size XV through A.M. Best.

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No part of said $41,898.58 may be paid to the Petitioner, this Court having determined that a

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tax-free structured settlement is in the best interest of the minor. Petitioner is authorized to settle this

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claim on behalf of her daughter and receive and negotiate funds on behalf of the minor. No bond

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shall be required of Petitioner. Receipt for purchase of annuity is to be filed with the Court within
60 days.

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Periodic Payments

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The following periodic payments will be made by United of Omaha Life Insurance Company,
payable to:

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S.S.J.

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Guaranteed lump sum payment of $25,000.00 payable at age 25 (on xxxxxxx);

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Guaranteed lump sum payment of $50,040.61 payable at age 30 (on xxxxxxx).

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Authorization to Execute Settlement Documents:

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On receipt of the full amount of the settlement sum here approved, Petitioner is authorized and

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directed to execute and deliver to Defendant(s) a complete Settlement Agreement and Release (which shall

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provide for a “Qualified Assignment” in compliance with Section 130(c) of the Internal Revenue Code of

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1986, as amended) and discharge of any and all claims of A.B. arising from the facts set forth in the Petition,

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and a properly executed dismissal with prejudice.

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IT IS SO ORDERED.

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Dated: March 9, 2020

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brow.1007

Amended Petition and Order Appointing Guardian Ad Litem and Approving Minor’s Compromise
Brown, et al. v. City of Stockton, et al., Case No.: 2-13-CV-01007-KJM-KJN

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