Deruyver et al v. Omni La Costa Resort & Spa, LLC et al

Filing 169

ORDER: (1) Adopting Magistrate Judge's Report and Recommendation 168 (2) Granting Petition to Confirm Minor's Compromise 164 . Signed by Judge Marilyn L. Huff on 2/4/20. (sxa)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPHER DERUYVER, for
himself and as guardian ad litem for H.D.,
N.D., and Z.D., and ROBYN
DERUYVER,

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Plaintiffs,

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v.

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OMNI LA COSTA RESORT & SPA,
LLC,

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Defendant.

Case No.: 3:17-cv-0516-H-AGS
ORDER:
(1) ADOPTING MAGISTRATE
JUDGE’S REPORT AND
RECOMMENDATION
[Doc. No. 168]
(2) GRANTING PETITION TO
CONFIRM MINOR’S COMPROMISE
[Doc. No. 164]

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On November 26, 2019, Christopher DeRuyver, guardian ad litem of minor

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Plaintiffs H.D., N.D., and Z.D. (“Minor Plaintiffs”), filed a petition for approval of Minor

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Plaintiffs’ settlement in this action. (Doc. No. 164.) On December 19, 2019, Defendant

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Omni La Costa Resort & Spa, LLC, (“Omni”) filed a response. (Doc. No. 166.) On

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December 30, 2019, Plaintiffs filed a reply. (Doc. No. 167.) On January 15, 2020, the

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magistrate judge filed a Report and Recommendation (“R&R”) approving the settlement.

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(Doc. No. 168.) The magistrate judge’s order instructed that objections to the R&R must

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be filed by January 29, 2020. Neither party filed any objections. For the reasons discussed

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below, the Court adopts the magistrate judge’s R&R and grants the petition.
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3:17-cv-0516-H-AGS

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BACKGROUND
On May 28, 2016, the Minor Plaintiffs and their parents went for breakfast at the

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Omni La Costa Resort in Carlsbad, California. The DeRuyver Plaintiffs claimed that an

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Omni employee placed a carafe of hot coffee directly in front of H.D, nine-month-old. H.D.

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reached for the pot and the ensuing spill severely burned her hand, torso, and legs. As a

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result of perceiving this event, H.D.’s family claimed serious emotional distress.

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The matter came for trial on March 11, 2019. On March 19, 2019, the jury reached

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a unanimous verdict and awarded H.D. $5,601,494.72 for past and future pain and suffering

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and past and future medical expenses. The jury also awarded H.D.’s family damages for

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past and future emotional distress and future medical expense as follows: Robyn DeRuyver

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$401,000, Christopher DeRuyver $251,000, N.D. $126,000, Z.D. $101,000.

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On June 28, 2019, Defendant Omni filed a Notice of Appeal to the Ninth Circuit.

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(Doc. 154.) The parties engaged in post-trial settlement negotiations. On November 6,

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2019, the parties reached an agreement to settle the matter for a gross settlement amount

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of $5,819,605.17 as to the five plaintiffs. Since there are minors involved in the settlement,

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the Court is required to do an approval of each minor’s compromise. Therefore, the Court

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addresses the recovery of each party since the apportionment of costs and attorneys’ fees

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relates to the recovery of the minor plaintiffs.

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DISCUSSION

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District courts have a special duty, derived from Federal Rule of Civil Procedure

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17(c), “to safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638

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F.3d 1177, 1181 (9th Cir. 2011). In the context of proposed settlements in suits involving

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minor plaintiffs, this special duty requires a district court to “conduct its own inquiry to

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determine whether the settlement serves the best interests of the minor.” Dacanay v.

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

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

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

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3:17-cv-0516-H-AGS

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

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minor’s parent or guardian ad litem”).

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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). In addition, the Ninth Circuit’s decision

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in Robidoux set forth guidelines for determining the reasonableness of a minor’s settlement

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of federal claims. 638 F.3d at 1181-82. The Robidoux court, which limited its holding to

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federal law settlements, held that district courts are to “limit the scope of their review” of

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settlements involving minor plaintiffs “to the question of whether the net amount

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distributed to each minor plaintiff in the settlement is fair and reasonable, [1] in light of the

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facts of the case, [2] the minor’s specific claim, and [3] recovery in similar cases.” 638

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F.3d at 1179, 1181-82 (brackets added). Although this Court is exercising diversity

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jurisdiction over state law claims, the Court nonetheless finds Robidoux persuasive insofar

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as it provides a framework for evaluating the reasonableness and fairness of Plaintiff’s

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settlement. 1

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A. Gross Settlement

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The proposed settlement will result in payment (before the deduction of attorney’s

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fees and costs) as follows:

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H.D. (injured minor)

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N.D. (brother)

$5,051,999.25
$119,301.91

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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 the Minor Plaintiffs under both California and federal law.
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Z.D. (brother)

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Christopher DeRuyver (father)

$208,923.83

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Robyn DeRuyver (mother)

$342,744.74

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Total

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Considering the Petition along with the Declarations filed in support, the Court

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agrees with the magistrate judge’s conclusion that a gross settlement sum of $5,819,605.17

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is reasonable in light of the facts of this case, the causes of action brought, and recoveries

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received by similarly situated plaintiffs.

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$96,605.45

$5,819,605.17

B. Attorney’s Fees

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In California, courts are required to approve the attorneys' fees to be paid for

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representation of a minor. See CAL. PROB. CODE § 2601. Attorney’s fees and costs are

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typically controlled by statute, local rule, or local custom. Generally, fees in minors' cases

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historically have been limited to twenty-five percent (25%) of the gross recovery. Napier

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by & through Quiroz v. San Diego Cty., No. 3:15-cv-00581-CAB-KSC, 2017 WL

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5759803, at *3 (S.D. Cal. Nov. 28, 2017). To determine whether the fee is reasonable,

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courts consider a myriad of factors including the amount of the fee in proportion to the

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value of the services performed; the novelty and difficulty of the questions involved and

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skills required; the amount involved and the results obtained; and the experience and ability

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of the attorney. Cal. Rule of Ct. 7.955(b).

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Here, Minor Plaintiffs’ counsel seek $1,454,901.29 in attorney’s fees, a sum that

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represents twenty five percent (25%) of the $5,819,605.17 gross settlement. (Doc. No. 164

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at 7.) Under this agreement, the attorneys’ fees for each Plaintiff are as follows:

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H.D. (injured minor)

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N.D. (brother)

$29,825.48

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Z.D. (brother)

$24,151.36

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Christopher DeRuyver (father)

$52,230.96

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Robyn DeRuyver (mother)

$85,693.69

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Total

$1,262,999.81

$1,454,901.29
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In consideration of the duration of this case, the amount of work performed by

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Plaintiffs' counsel, the results obtained, and the complexity of the issues, the amount of

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attorney’s fees sought in this case is fair and reasonable.

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C. Litigation Costs

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Plaintiffs’ counsel also seeks $211,151.50 to cover litigation costs. The parties pro

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rata share of costs are as follows:

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H.D. (injured minor)

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N.D. (brother)

$4,328.61

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Z.D. (brother)

$3,505.11

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Christopher DeRuyver (father)

$7,580.34

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Robyn DeRuyver (mother)

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Total

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The Court finds the amount to be fair and reasonable under the circumstances given

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$183,300.62

$12,436.82
$211,151.50

the protracted nature of this litigation and the expense of going to trial.

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D. Net Settlement

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The proposed settlement will result in payment (after attorney’s fees and costs) as

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follows:

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H.D. (injured minor)

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N.D. (brother)

$85,147.82

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Z.D. (brother)

$68,948.97

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Christopher DeRuyver (father)

$149,112.25

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Robyn DeRuyver (mother)

$244,644.24

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Total

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Considering the Petition along with the Declarations filed in support, the Court

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agrees with the magistrate judge’s conclusion that a net settlement sum of $4,041,437.17

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is fair and reasonable. Plaintiffs also seek approval of the disbursement of $112,115.21

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from H.D.’s net recovery to reimburse Blue Cross Blue Shield of Michigan for amounts

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paid for H.D.’s incident-related medical care. Blue Cross Blue Shield of Michigan had

$3,493,583.61

$4,041,437.17

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originally asserted a lien for the medical care it paid on behalf of H.D. in the amount of

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$168,172.81. (Doc. No. 164 at 6.) Plaintiffs negotiated a reduction in Blue Cross Blue

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Shield’s claim for reimbursement down to $112,115.21. Accordingly, the Court

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APPROVES the disbursement of $112,115.21 to reimburse Blue Cross Blue Shield of

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Michigan for amounts paid for H.D.’s incident-related medical care.

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CONCLUSION

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Accordingly, given the nature of the harm, the costs of trial, and the settlement

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amounts in similar cases, the Court concludes that the settlement amount of $5,819,605.17

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is fair, reasonable, and in the best interest of the Minor Plaintiffs. As a result, the Court

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ADOPTS the R&R, GRANTS the Petition to Approve the Minors' Compromise, and

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ORDERS:

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1. The Court grants the motion to approve the settlement.

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2. The Court approves the compromise and settlement of the claims of the Minor

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Plaintiffs as fair and reasonable and in the best interest of the Minor Plaintiffs.

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3. The Court approves the attorney’s fees and costs sought by plaintiffs’ counsel.

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4. The Court orders that the disposition of the proceeds for each minor are to be as

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ordered by the Washtenaw County Probate Court in Michigan where the Minors

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Plaintiffs reside.

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5. The Court approves the disbursement of $112,115.21 of H.D.’s recovery to

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reimburse Blue Cross Blue Shield of Michigan for amounts paid for incident-

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related medical care.

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6. The Court grants Christopher DeRuyver permission to execute all documents in

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connection with the Settlement Agreements and Release of All Claims and the

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Petition for Conservatorship of the Minors filed within the Washtenaw County

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Probate Court, absent further order of the Washtenaw County Probate Court.

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DATED: February 4, 2020

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MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT

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3:17-cv-0516-H-AGS