Lobaton et al v. San Diego, City of et al

Filing 52

ORDER Granting #42 Petition of Guardian Ad Litem for Compromise of Minor's Disputed Claim and Adopting #50 Report and Recommendation. Signed by Judge Gonzalo P. Curiel on 6/16/17. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LUIS JESUS LOBATON, an individual;
HEDY JULCA, an individual; DIEGO
STEVEN LOBATON, an individual; and
“B.C.,” a minor, by and through his
mother and guardian ad litem, Hedy Julca

ORDER GRANTING PETITION OF
GUARDIAN AD LITEM FOR
COMPROMISE OF MINOR’S
DISPUTED CLAIM

Plaintiff,

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Case No.: 3:15-cv-1416-GPC-DHB

v.

[Dkt. No. 42]

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CITY OF SAN DIEGO, a municipal
corporation; NATHAN PARGA, an
individual; KELVIN LUJAN, an
individual; SAM EULER, an individual;
ALI BAKHSHI, an individual; and DOES
1 through 200, inclusive.

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Defendant.

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Before the Court is the ex parte petition of Hedy Julca, mother and court-appointed

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guardian ad litem of minor Plaintiff B.C., for approval of the compromise of B.C.’s

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disputed claim. Dkt. No. 42. United States Magistrate Judge Burkhardt filed a Report

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and Recommendation granting the petition. Dkt. No. 50. Based upon the Court’s review

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of the moving papers, the law, and for the reasons set forth below, the Court ADOPTS

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the Magistrate Judge’s Report and Recommendation and GRANTS the Petition.
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BACKGROUND

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On June 26, 2015, Plaintiffs, Hedy Julca (“Petitioner”), and her children, Luis

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Jesus Lobaton (“Luis”), Diego Steven Lobaton, and B.C. (“Plaintiff”), commenced the

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instant action. Dkt. No. 1. The complaint alleges that when Plaintiff was three years old,

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he witnessed several San Diego police officers break into his family’s store and violently

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assault, handcuff, and forcibly take away his mother and brother Luis. Dkt. No. 3 at 30.

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As a result, Plaintiff B.C. suffered “serious emotional distress” and asserted a negligent

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infliction of emotional distress claim against Defendants. Id. at 29-31.

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In the weeks following the incident, Petitioner noticed that B.C. had become “more

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dependent on her,” “less verbal,” and fearful of the police. Dkt. No. 49 at 3. “Because of

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these behavioral changes,” Petitioner took B.C. to counseling sessions approximately

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three times per month for ten months, totaling twenty-seven sessions. Id. The symptoms

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gradually resolved. Id. B.C. “is now five years old, attending school, and functioning

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normally for a boy his age.” Dkt. No. 42 at 3.

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On August 27, 2015, Magistrate Judge David H. Bartick appointed Petitioner as

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guardian ad litem for Plaintiff B.C. Dkt. No. 8. On December 8, 2016, the parties

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reached a settlement agreement at a settlement conference before Magistrate Judge

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Louisa S. Porter. Dkt. No. 34.

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On April 25, 2017, Plaintiff’s guardian ad litem filed the instant Petition setting

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forth the terms of the settlement and the intended distribution of the settlement proceeds.

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Dkt. No. 42. Plaintiff B.C., through Petitioner, has agreed to settle his claim against

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Defendants for a total sum of $10,000. Id. at 3. No costs or attorney’s fees will be

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deducted from the total amount to be paid to B.C. Id. at 3; Dkt. No. 49 at 4. Petitioner

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has indicated that she will not use B.C.’s settlement earnings to pay for B.C.’s counseling

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expenses, which totaled $3,180. Id.

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On May 23, 2017, Plaintiff’s guardian ad litem filed a supplemental brief in

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support of the ex parte petition, at the Magistrate Judge’s request. Dkt. No. 49. On May

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26, 2017, Magistrate Judge Jill L. Burkhardt filed a Report and Recommendation

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granting the Petition for the compromise of the minor’s disputed claim. Dkt. No. 50.

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DISCUSSION

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Fed. R. Civ. P. 17(c) provides that a district court “must appoint a guardian ad

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litem—or issue another appropriate order to protect a minor . . . who is unrepresented in

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an action.” “District courts have a special duty, derived from Federal Rule of Civil

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Procedure 17(c), to safeguard the interests of litigants who are minors.” Robidoux v.

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Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). “In the context of proposed settlements

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in suits involving minor plaintiffs, this special duty requires a district court to ‘conduct its

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own inquiry to determine whether the settlement serves the best interests of the minor.’”

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Id. (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978)); see also

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Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983) (“a court must

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independently investigate and evaluate any compromise or settlement of a minor’s claims

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to assure itself that the minor’s interests are protected, even if the settlement has been

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recommended or negotiated by the minor’s parent or guardian ad litem”). Pursuant to

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Civil Local Rule 17.1, “[no] action by or on behalf of a minor . . . will be settled,

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compromised, voluntarily discontinued, dismissed or terminated without court order or

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judgment.”

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In considering the fairness of a minor’s state law settlement, “federal courts

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generally require that claims by minors . . . be settled in accordance with applicable state

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law.” See O’Connell & Stevenson, California Practice Guide: Federal Civil Procedure

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Before Trial ¶ 15:138 (Cal. & 9th Cir. Eds. 2017). “California law requires court

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approval of the fairness and terms of the settlement.” Id. Under California state law, the

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court is to evaluate the reasonableness of the settlement and determine whether the

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compromise is in the best interest of the minor. See Espericueta v. Shewry, 164 Cal.

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App. 4th 615, 617 (Cal. Ct. App. 2008); Anderson v. Latimer, 166 Cal. App. 3d 667, 676

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(Cal. Ct. App. 1985). Attorney fees to be paid for representing the minor must also be

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approved by the court. Cal. Fam. Code § 6602 (“A contract for attorney’s fees for
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services in litigation, made by or on behalf of a minor, is void unless the contract is

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approved . . . by the court in which the litigation is pending . . . .”). The court has “broad

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power” to “authorize payment from the settlement—to say who and what will be paid

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from the minor’s money—as well as direct certain individuals to pay it.” Goldberg v.

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Superior Court, 23 Cal. App. 4th 1378, 1382 (Cal. Ct. App. 1994) (citing Cal. Prob. Code

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§ 3601); see also Cal. Civ. Code P. § 372 (“Money or property to be paid or delivered

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pursuant to the order or judgment for the benefit of a minor . . . shall be paid and

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delivered as provided in Chapter 4 (commencing with Section 3600) of Part 8 of Division

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4 of the Probate Code).
The Ninth Circuit’s decision in Robidoux set forth guidelines for determining the

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reasonableness of a minor’s settlement. 638 F.3d at 1181-82. The Robidoux court, which

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limited its holding to federal law settlements, held that district courts are to “limit the

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scope of their review” of settlements involving minor plaintiffs “to the question of

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whether the net amount distributed to each minor plaintiff in the settlement is fair and

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reasonable, [1] in light of the facts of the case, [2] the minor’s specific claim, and [3]

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recovery in similar cases.” 638 F.3d at 1179, 1181-82 (brackets added). Although this

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Court is exercising supplemental jurisdiction over a state law claim, the Court

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nonetheless finds Robidoux persuasive insofar as it provides a framework for evaluating

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the reasonableness and fairness of Plaintiff’s settlement.1

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Considering the Petition and the supplemental brief filed in support of it, the Court
agrees with Magistrate Judge Jill L. Burkhardt’s conclusion that a settlement sum of

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District courts are split on whether Robidoux applies when evaluating the propriety of a settlement of a
minor’s state law claims. Some district courts have applied the Robidoux rule to evaluate the propriety
of a settlement of a minor’s state law claims. See Mitchell v. Riverstone Residential Grp., No. S-112202
LKK-CKD, 2013 WL 1680641, at *1 (E.D. Cal. Apr. 17, 2013). Other district courts have declined to
apply the Robidoux rule to state law claims in diversity jurisdiction cases. See, e.g., Chance v.
Prudential Ins. Co. of Am., No. 1:15-cv-01889-DAD-JLT, 2016 WL 3538345, at *2 (E.D. Cal. June 28,
2016). The Court notes that its conclusion, however, does not depend on whether Robidoux is binding
on a district court exercising supplemental jurisdiction, as the present settlement is fair, reasonable, and
in the best interest of B.C. under California and federal law.
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$10,000 is reasonable in light of the facts of the case, the cause of action brought, and

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recoveries by similarly situated plaintiffs.

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B.C. was not directly involved in the incident that led to the instant lawsuit against

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Defendants, but rather was a bystander. As a bystander, Plaintiff alleges that he suffered

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emotional injuries only, as a result of being present while his mother and brother had the

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altercation with police. Dkt. No. 42-1 at 3. After twenty-seven counseling sessions,

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Plaintiff has made a full psychological recovery. Dkt. No. 49 at 3. He is now “attending

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school” and “functioning normally for a boy his age.” Dkt. No. 42-1 at 3.

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Moreover, Plaintiff would have faced many obstacles to prevailing at trial, such as

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the high bar for demonstrating “serious emotional distress” under California law, the

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short duration of the altercation, which lasted only ninety seconds, and the presence of

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other stressors in B.C.’s life that could have caused B.C.’s behavioral changes. Dkt. No.

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49 at 6. The supplemental brief further emphasized that even if B.C. had prevailed at

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trial, he likely would have been awarded “very modest” damages given that his post-

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incident behaviors “were not severe and were not necessarily related to this incident.”

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Dkt. No. 49 at 6.

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Lastly, the Court concludes that a settlement amount of $10,000 is commensurate

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with recoveries in similar cases. See, e.g., Smith v. City of Stockton, 185 F. Supp. 3d

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1242 (E.D. Cal. 2016) (approving settlement sum of $11,873.94 for minor who witnessed

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her brother tackled and restrained by a police officer, bitten by a police dog, and then

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arrested); Dumas v. City of Elk Grove, No. 2:09-cv-1573-GEB-JFM, 2012 WL 2116390

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(E.D. Cal. June 6, 2012) (approving settlement amount of $18,750 to seven-year-old

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daughter who witnessed police officers arrest and use excessive force against her

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mother); Parson v. City of Bakersfield, No. 1:07-cv-01468-OWW-DLB, 2009 WL

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453118 (E.D. Cal. Feb. 23, 2009) (approving settlement of $3,750 to minor who woke up

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and realized that his father had been shot by police officer).

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Accordingly and given the nature of the harm, the obstacles to prevailing at trial,
and the settlement amount received in similar cases, the Court concludes that the
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settlement amount of $10,000 is fair and reasonable. Neither attorney’s fees nor B.C.’s

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past counseling fees will be deducted from the total settlement. As such, and given that

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settlement is in the best interest of the child, the Court ADOPTS the Report and

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Recommendation and GRANTS Petitioner’s ex parte Petition for approval of B.C.’s

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minor’s compromise.

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CONCLUSION
For the foregoing reasons, the Court concludes that Plaintiff B.C.’s settlement is

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fair and reasonable and serves Plaintiff’s best interests. Accordingly, the Court

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ADOPTS the Report and Recommendation of the Magistrate Judge and GRANTS the

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Petition of guardian ad litem for compromise of minor’s disputed claims. The Court

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further orders:

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1. Within 72 hours of Petitioner’s receipt of Plaintiff B.C.’s settlement fund,

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Petitioner shall deposit the balance of the settlement fund into a blocked

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account belonging to Plaintiff B.C.;

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2. No withdrawals of principal or interest may be made from the blocked account

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belonging to Plaintiff B.C. without a further written order under this case name

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and number, signed by a judge, and bearing the seal of the Court, until B.C.

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attains the age of 18 years; and

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3. When B.C. attains the age of 18 years, the depository, without further order of

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the Court, shall pay by check or draft directly to the former minor, upon proper

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demand by the former minor, all moneys including interest deposited under this

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order. The money on deposit is not subject to escheat.

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IT IS SO ORDERED.

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Dated: June 16, 2017

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