Stewart et al v. State of California

Filing 110

Order by Magistrate Judge Robert M. Illman granting 103 Motion for Settlement. (rmilc2S, COURT STAFF) (Filed on 6/3/2020)

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JOSEPH A. LEPERA (SBN 207615)
PATRICK A. HORMILLOSA (SBN 293000)
LEPERA + ASSOCIATES, PC
601 Montgomery Street – Suite 665
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Email: [e-mail]
JOSEPH S. MAY (SBN 245924)
LAW OFFICE OF JOSEPH S. MAY
1388 Sutter Street, Suite 810
San Francisco, CA 94109
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
Attorneys for Plaintiff
KENNETH STEWART III
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO/OAKLAND DIVISION

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KENNETH STEWART III, a minor by and
through his Guardian Ad Litem, Beatriz
Abrego, individually and as successor in
interest to KENNETH E. STEWART, JR.,
deceased;

CASE NO. C18-01778-RMI
[PROPOSED] ORDER APPROVING
SETTLEMENT

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Plaintiff,
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v.

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STATE OF CALIFORNIA; SCOTT
KERNAN; RONALD DAVIS; ERIC E.
EVANS; JEFFREY M. CARLTON; APRIL D.
MAXFIELD; JACK E. DOUGERY; and
DOES 1-50, inclusive,

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Action Filed:
Removal:
Trial Date:

Defendants.

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Stewart v. State of California, N.D. Cal. No. C18-1778-RMI
[PROPOSED] ORDER APPROVING SETTLEMENT

February 2, 2018
March 22, 2018
Vacated

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Plaintiff KENNETH STEWART III, a minor by and through his Guardian Ad Litem, Beatriz

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Abrego, individually and as successor in interest to KENNETH E. STEWART, JR., deceased

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(“Plaintiff”) and Defendants STATE OF CALIFORNIA, SCOTT KERNAN, RONALD DAVIS,

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ERIC E. EVANS, JEFFREY M. CARLTON, APRIL D. MAXFIELD, and JACK E. DOUGERY

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(“Defendants”) have reached a final settlement of this matter.

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After consideration of Plaintiff’s Motion to Approve Settlement, and the record as a whole, the

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Court finds that the proposed settlement for the benefit of Kenneth Stewart III, aka Kenneth Stewart,

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Jr., date of birth January 14, 2005, against defendants in the sum of $900,000 (a copy of the proposed

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Agreement is attached as Exhibit C to the Declaration of Joseph S. May filed in support of Plaintiff’s

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motion), serves the best interests of the minor Plaintiff. Accordingly, the Court GRANTS the motion

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to approve the settlement. Pursuant to the Agreement, California Department of Corrections and

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Rehabilitation (“CDCR” or “Defendant”) shall prepare and deliver drafts for the settlement proceeds

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in accordance with paragraph 3 of the Settlement Agreement and Release, payable as follows:

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(a) One check for $186,926.75, made payable to Lepera + Associates, PC., mailed to

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Lepera + Associates, PC, 601 Montgomery Street, Suite 665, San Francisco, California 94111,

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representing $180,000 in attorneys’ fees, and $6,926.75 in costs;

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(b) One check for $181,806.41, made payable to Law Office of Joseph S. May, 1388

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Sutter Street, Suite 810, San Francisco, California 94109, representing $180,000 in attorneys’ fees and

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$1,806.41 in costs.

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(c) One check for $4,000, made payable to Beatriz Abrego, c/o Lepera + Associates,

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PC, mailed to Lepera + Associates, PC, 601 Montgomery Street, Suite 665, San Francisco, California

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94111, representing expenses incurred by Ms. Abrego, Plaintiff’s guardian ad litem, at the direction

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of counsel, to open probate for Decedent in order to obtain prison, medical, and mental health records

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that were necessary to prosecute this action;

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(d) A check in the amount $527,266.84 will be paid from Defendant to Mutual of

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Omaha Structured Settlement Company to fund an annuity for the benefit of Kenneth Stewart, III, aka

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Kenneth Stewart, Jr., through a policy issued by United of Omaha Life Insurance Company, rated A+

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Stewart v. State of California, N.D. Cal. No. C18-1778-RMI
[PROPOSED] ORDER APPROVING SETTLEMENT

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by AM Best, as further described below:
Periodic payments made to Kenneth Stewart, III aka Kenneth Stewart, Jr. (“Payee”) made
according to the Schedule of Payments as follows (the “Periodic Payments”):

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$249,387.99 lump sum payment on 01/14/2023 (age 18), guaranteed.

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$150,000.00 lump sum payment on 01/14/2030 (age 25), guaranteed.

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$201,119.61 lump sum payment on 01/14/2033 (age 28), guaranteed.

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All the payments set forth herein constitute damages on account of personal physical injuries, arising

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from an occurrence within the meaning of Section 104(a)(2) of the IRS Code of 1986, as amended.

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IT IS SO ORDERED.

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June 2, 2020
DATED: ____________________________

_______________________________________
HON. ROBERT M. ILLMAN
United States Magistrate Judge

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Stewart v. State of California, N.D. Cal. No. C18-1778-RMI
[PROPOSED] ORDER APPROVING SETTLEMENT