Napier et al v. San Diego County et al

Filing 122

ORDER Approving the Ex-Parte Petition for Approval of Minor's Compromise of Claims [Doc. No. #118 ]. Signed by Judge Cathy Ann Bencivengo on 11/28/2017.(jjg)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11
12

GABRIEL NAPIER by and through his
guardian ad litem, LILLY QUIROZ,

15
16
17
18
19
20

ORDER APPROVING THE EXPARTE PETITION FOR APPROVAL
OF MINOR’S COMPROMISE OF
CLAIMS
[Doc. No. 118]

Plaintiff,

13
14

Case No.: 3:15-cv-00581-CAB-(KSC)

v.
SAN DIEGO COUNTY, a government
entity; SAN DIEGO COUNTY
SHERIFF'S DEPARTMENT, a
department of San Diego County;
WILLIAM GORE, an individual;
BRANDON BOISSERANC, an
individual; and NICHOLAS DANZA, an
individual,
Defendants.

21
22

This matter comes before the Court on Plaintiff’s counsel’s Ex-Parte Petition for

23

Approval of Minor’s Compromise of Claims. [Doc. No. 118.] Based upon the Court’s

24

review of the papers, the Compromise hearing held on November 28, 2017, and for the

25

reasons set forth below, the Court GRANTS the petition.

26
27
28
1
3:15-cv-00581-CAB-(KSC)

1

I.

Background

2

This action involves the death of minor child’s father, Michael Napier. Mr. Napier

3

was shot and killed on January 31, 2014 by two San Diego Sheriff’s deputies who were

4

attempting to arrest Napier pursuant to an active warrant.

5

On May, 13, 2015, Plaintiff Gabriel Napier, by and through his guardian ad litem,

6

Lilly Quiroz, commenced this action against the County of San Diego, the San Diego

7

County Sheriff’s Department, and three county sheriffs alleging violation of the fourth

8

amendment claims and state law claims for battery, intentional infliction of emotional

9

distress and wrongful death. [Doc. No. 1.]

10

On July 17, 2017, this Court vacated its earlier summary judgment order and granted

11

summary judgment on the fourth amendment claims on the basis of qualified immunity but

12

denied Defendants’ motion as to the state law claims for wrongful death/battery. [Doc.

13

No. 106.] An October, 2017 trial date was subsequently set by the Court, which was

14

ultimately vacated at the request of the parties upon reaching a settlement. [Doc. Nos. 112,

15

114, 116.]

16

On November 9, 2017, counsel for Plaintiff filed an ex-parte petition for approval of

17

minor’s compromise of claims. [Doc. No. 118.] The Petition requests the Court approve

18

the proposed settlement. Under the terms of the settlement, this matter would be settled

19

for $77,500.00. [Doc. No. 118-1 at ¶ 16.]

20

The underlying facts are set forth in the Court’s earlier on the motion for summary

21

judgment. [Doc. No. 106]. On January 31, 2014, a handful of San Diego County Sheriff’s

22

deputies in the Gang Enforcement Team went to a Vista apartment complex in order to

23

arrest Michael Napier. [Id. at 2.] Upon arriving at the location, the deputies found Napier

24

in the garage of his father’s house working on his bicycle. [Id. at 2-4.] The deputies

25

proceeded to approach the garage with their guns drawn, enter the structure, identify

26

themselves as officers and ordered Napier to put his hands up. [Id. at 4-5.] Two of the

27

deputies, Boisserance and Danza fired their weapons at Napier, striking him several times.

28

[Id. at 7.] Napier died at the scene. [Id.]
2
3:15-cv-00581-CAB-(KSC)

1

Neither the minor child nor his mother were present during the incident.

2

II.

Discussion

3

It is well settled that district courts have a special duty to safeguard the interests of

4

litigants who are minors in the context of settlements proposed in civil suits. Robidoux v.

5

Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011); see also Fed. R. Civ. P. 17(c) (district

6

courts “must appoint a guardian ad litem-or issue another appropriate order-to protect a

7

minor or incompetent person who is unrepresented in an action.”) “This special duty

8

requires a district court to ‘conduct its own inquiry to determine whether the settlement

9

serves the best interest of the minor.’” Robidoux, 638 F.3d at 1181 (quoting Dacanay v.

10

Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978)). See also Salmeron v. United States, 724

11

F.2d 1357, 1363 (9th Cir. 1983) (holding that “a court must independently investigate and

12

evaluate any compromise or settlement of a minor’s claims to assure itself that the minor’s

13

interests are protected, even if the settlement has been recommended or negotiated by the

14

minor’s parent or guardian ad litem”). To facilitate courts within this district fulfilling the

15

duty to safeguard, Local Rule 17.1(a) provides that “[n]o action by or on behalf of a minor

16

or incompetent will be settled, compromised, voluntarily discontinued, dismissed or

17

terminated without court order or judgment.” CivLR. 17.1(a)1.

18

Ordinarily, “in considering the fairness of a minor’s state law settlement, federal

19

courts generally require that claims by minors . . . be settled in accordance with the

20

applicable state law.” Lobaton v. City of San Diego, Case No. 3:15-cv-1416-GPC-DHB,

21

2017 WL 2610038, at *2 (June 16, 2017) (internal quotation marks and citation omitted).

22

California law requires court approval of a settlement for a minor and attorney’s fees to

23

represent a minor. CAL. PROB. CODE § 3601; CAL FAM. CODE § 6602. The court is tasked

24
25
26
27
28

1

This requires the court question if the settlement is in the best interests of the minor or incompetent and
consider not only the fairness of the settlement, but the structure and manner of the plan for the payment
and distribution of the assets for the benefit of the minor or incompetent. Under the Rule, parties must
submit the settlement to a magistrate judge for preliminary review of the structural components. See
CivLR 17(a) (“All settlements and compromises must be reviewed by a magistrate judge before any order
of approval shall issue.”).
3
3:15-cv-00581-CAB-(KSC)

1

with evaluating the reasonableness of the settlement and determining whether the

2

compromise is in the best interest of the minor before approving a settlement. Espericueta

3

v. Shewry, 164 Cal. App. 4th 615, 617 (2008). Furthermore, California Probate Code

4

Section 3601 authorizes the court approving a compromise of a minor’s disputed claim to

5

“make a further order authorizing and directing that reasonable expenses, medical or

6

otherwise[,] . . . costs, and attorney’s fees, as the court shall approve and allow therein,

7

shall be paid from the money or other property to be paid or delivered for the benefit of the

8

minor. CAL. PROB. CODE§ 3601(a). The statute “bestows broad power on the court to

9

authorize payment form the settlement - to say who and what will be paid from the minor’s

10

money – as well as direct certain individuals to pay it.” Goldberg v. Superior Court, 23

11

Cal. App. 4th 1378, 1382 (1994).

12

However, following the Ninth Circuit’s decision in Robidoux, district courts have

13

been split on whether or not to apply Robidoux when evaluating the propriety of a

14

settlement of a minor’s state law claims. See Lobaton, 2017 WL 2610038, at *2; see also

15

id. at n. 1 (collecting district court cases). The Robdioux court provided that in cases

16

involving the settlement of a minor’s federal claims, district courts should “limit the scope

17

of their review to the question of whether the net amount distributed to each minor plaintiff

18

is fair, in light of the facts of the case, the minor’s specific claim, and recovery in similar

19

cases.” Robdioux, 638 F.3d at 1181. Here, the instant case was filed in this Court on the

20

basis of federal question, but since summary judgment on the remaining 42 U.S.C. § 1983

21

claim was granted in favor of Defendants, the only remaining causes of action are the state

22

law claims for battery and wrongful death. The Court, therefore, will apply California law

23

and focus on whether “the compromise is sufficient to provide for the minor’s injuries, care

24

and treatment.” Goldberg, 23 Cal. App. 4th at 1382. Additionally, the Court will consider

25
26
27
28
4
3:15-cv-00581-CAB-(KSC)

1

the guidelines set forth in Robidoux because they provide a “framework for evaluating the

2

reasonableness and fairness of Plaintiff’s settlement.”2 Lobaton, 2017 WL 2610038, at *2.

3

Here, the proposed settlement of Gabriel Napier’s state law claims would result in

4

a payment in the amount of $77,500. Further, the settlement provides that $19,375.00 of

5

the proceeds will be paid to Plaintiff’s counsel, Estevan Lucero, as attorney’s fees, and an

6

additional $17,000.00 3 will be paid to reimburse Plaintiff’s counsel for additional litigation

7

costs.4 [Doc. No. 118-1 at ¶ 16.] The minor, Gabriel Napier will receive a net recovery in

8

the amount of $41,125.00.

9

This action was commenced in May 2015, and the facts of the case have been

10

thoroughly investigated and developed over the course of the litigation. The settlement

11

agreement was reached on the eve of trial, after the conclusion of discovery and after

12

Defendants have won summary judgment on the § 1983 claims. [Doc. Nos. 106, 112, 114,

13

116.] It allows for certainty of recovery for the minor Plaintiff, as opposed to the

14

uncertainty associated with a jury verdict. Furthermore, although the petition does not

15

identify any other cases involving circumstances similar to those alleged in the complaint,

16

the Court performed its own review of the case law and finds Plaintiff’s net recovery to be

17

fair and reasonable under the circumstances. See, e.g., Swayzer v. City of San Jose, No.

18

C10-03119 HRL, 2011 WL 3471217, at *1 (N.D. Cal. Aug. 5, 2011) (finding settlement

19

of minor's section 1983 claims against the City for $2,054.17 fair and reasonable); Doe ex

20
21
22
23

Regardless, the Court’s finding is not dependent on the applicability of Robidoux because under either
California or federal law, the settlement is fair, reasonable, and in the best interests of Gabriel Napier.
2

Originally, in the declaration filed in support of the minor’s compromise, Plaintiff’s counsel requested
“additional litigation costs” in the amount of $22,005.49. [Doc. No 118-1 at ¶ 16.] The additional
paperwork submitted at the request of the Court reduced the costs to $20,844.19. At the compromise
hearing Mr. Lucero further reduced the costs to $17,000.
3

24
25
26

4

27
28

At the compromise hearing Mr. Lucero represented that the bankruptcy lien related to this lawsuit would
be resolved for $5,000.00. Mr. Lucero proffered that $3,000.00 in costs are to be paid from the $17,000.00
awarded as costs in the settlement and $2,000.00 in attorneys’ fees are to be paid from his attorney’s fee
award of $19,375.00.
5
3:15-cv-00581-CAB-(KSC)

1

rel. Scott v. Gill, 2012 WL 1939612, at *2 (N.D. Cal. May 29, 2012) (finding settlement

2

of minor's section 1983 claims for the death of her mother for $7,188 fair and reasonable);

3

Armstrong v. Dossey, Nos. C 11-4759 CW, C 11-5009 CW, C 11-5083 CW, 2013 WL

4

4676541, at *5 (E.D. Cal. Aug. 30, 2013) (finding settlement of minors' § 1983 claims for

5

their father's death for $22,500 for minor with close relationship to father and $11,000 to

6

minor with little to no relationship with father fair and reasonable); Frary v. Cnty. of Marin,

7

Case No. 12-cv-03928-MEJ, 2015 WL 575818 (N.D. Cal. Feb 10, 2015) (finding

8

settlement of minor’s § 1983 and negligence claims for a net recovery of $73,844.39 fair

9

and reasonable); Lobaton, 2017 WL 2610038, at *3 (finding settlement of minor’s

10

emotional distress and negligent infliction of emotional distress claims for $10,000.00 fair

11

and reasonable.). Thus, upon consideration of the facts of the case, Gabriel Napier’s

12

remaining claims, the risks associated with trial, and the recoveries in similar actions, the

13

Court concludes that under either California or federal law the proposed compromise is fair

14

and reasonable.

15

Additionally, the method of disbursement of the settlement appears fair, reasonable

16

and within the bounds of applicable law. Under California Probate Code section 3600 et.

17

seq. various alternatives are available for holding the funds of a settlement of a minor or

18

incompetent, one such alternative is a blocked account. The California Code provides that

19

upon petition by the guardian/guardian ad litem on behalf of the minor child or

20

incompetent, the funds may be deposited in an insured account or a deferred annuity subject

21

to withdrawal only upon Court Order. See CAL. PROB. CODE § 3602(c)(1). The settlement

22

comports with this provision by providing that the balance of the settlement be placed in a

23

blocked account, which will be disbursed when the minor reaches the age of eighteen.

24

III.

Attorneys’ Fees and Costs

25

Attorneys’ fees and costs are typically controlled by statute, local rule or local

26

custom. Generally, fees in minors cases have historically been limited to 25% of the gross

27

recovery. In California, courts are required to approve the attorneys’ fees to be paid for

28
6
3:15-cv-00581-CAB-(KSC)

1

representation of a minor. See CAL. PROB. CODE § 2601; Cal. Rule of Ct. 7.955.5 To

2

determine whether the fee is reasonable courts consider a myriad of factors including: the

3

amount of the fee in proportion to the value of the services performed; the novelty and

4

difficulty of the questions involved and skills required; the amount involved and the results

5

obtained; and the experience and ability of the attorney. Cal. Rule of Ct. 7.955(b). In

6

instances where a contingency fee has been proposed “most courts require a showing of

7

‘good cause’ to award more that 25% of any recovery” whereas a greater reward is “rare

8

and justified only when counsel proves that he or she provided extraordinary services.”

9

Schwall v. Meadow Wood Apts., No. CIV. S-07-0014 LKK, 2008 WL 552432, at *1-2

10

(E.D. Cal. Feb. 27, 2008) (quoting 2 Weil & Brown, Cal. Practice Guide: Civ. Proc. Before

11

Trial §§ 12:576-12:577, 12-17 (2007)).

12

reasonableness determination the petition to approve the minor’s compromise should

13

provide a detailed listing of the litigation costs association associated with the litigation.

Therefore, to help the Court make the

14

Initially, Plaintiff’s counsel provide a four page declaration in support of his request

15

for attorney’s fees in the amount of $19,375.00 along with “additional litigation costs”

16

totaling $22,005.49 but provided no information or details as to how these amounts were

17

earned or accrued. [Doc. No. 118-1.] At the request of the Court, additional information

18

in the form of an excel spreadsheet requesting $20,844.10 in costs has since been provided

19

and reviewed by the Court. At the compromise hearing Mr. Lucero further reduced the

20

requested costs to $17,000.00, which he represented covers $3,000 in costs, $4,000.00 in

21

court reporting fees and $10,000.00 in expert fees. The Court finds that the costs incurred

22

are fair and reasonable under the circumstances. This litigation, which began in May 2015,

23

only settled on the eve of trial and involved the completion of discovery, multiple

24
25
26

Similarly, San Diego Superior Court Civil Rule 2.4.6. 2 states “[a]t the time of the [minor’s compromise]
hearing, the court will determine the amount of costs, expenses, and attorney’s fees to be allowed from
the proceeds of the settlement. Absent extraordinary circumstances, attorney’s fees will not exceed 25%
of the gross proceeds of the settlement.”
5

27
28

7
3:15-cv-00581-CAB-(KSC)

1

depositions and retention of one expert. Therefore, the Court will award $17,000.00 in

2

costs.
Additionally, Plaintiff’s counsel seeks $19,375.00 in attorney’s fees, a sum that

3

Plaintiff’s counsel has provided no

4

represents 25 percent of the gross settlement.

5

documentation in support of his request. Nonetheless, the Court finds that in consideration

6

of the duration of this case, the amount of work performed by Plaintiff’s counsel, and the

7

fee request’s adherence to the 25 percent limit historically applied, the amount of attorney’s

8

fees is reasonable and does not suggest that the settlement was unfair.

9

IV.

Conclusion

10

After reviewing the Ex-Parte Petition for Approval of Minor’s Compromise of

11

Claims, the Court finds that the proposed settlement of Plaintiff’s claims in the amount of

12

$77,500.00 fair and reasonable in light of the minor’s claims and the recovery in similar

13

cases.

14

Additionally, the Court ORDERS as follows:

15

(1) The settlement funds should be disbursed as follows: Attorney’s fees in the total

16

amount of $19,375 shall be paid to Plaintiff’s counsel, Estevan R. Lucero;

17

$17,000.00 shall be disbursed for costs incurred, this sum is also payable to

18

Plaintiff’s attorney subject to the portions attributed to the negotiated liens as

19

represented at the hearing. The balance of the settlement after payment of

20

reasonable fees and costs is $41,125.00.

21

(2) The minor’s recovery will be deposited by his guardian ad litem, Lilly Quiroz,

22

in a blocked account, which Lilly Quiroz will open at a branch of Chase Bank, a

23

federally insured institution. The funds will be held there until Gabriel Napier

24

reaches the age of majority, eighteen. Until that time, no withdrawals of principal

25

or interest may be made from the blocked account without a certified copy of a

26

written order under this case name and number, signed by a judge of this Court.

27

(3) Within seventy-two hours of receipt of a check payable to the order of Lilly

28

Quiroz, as guardian ad litem for Gabriel Napier, the minor Plaintiff’s net
8
3:15-cv-00581-CAB-(KSC)

1

settlement amount ($41,125.00) shall be deposited into the blocked account for

2

the minor’s benefit. When the minor reaches the ages of eighteen, the depository,

3

without further order of the Court, is authorized to pay by check or draft directly

4

to the Plaintiff, upon proper demand all monies due under the Court’s order.

5

Gabriel Napier’s guardian ad litem shall deliver a copy of this order to the

6

depository, Chase Bank, at the time of the deposit.

7
8

(4) The parties’ joint dismissal documents shall be filed no later than January 16,
2018.

9

It is SO ORDERED.

10

Dated: November 28, 2017

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
9
3:15-cv-00581-CAB-(KSC)