The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS REGARDING PETITION FOR ORDER APPROVING COMPROMISE OF THE CLAIM ) OF PLAINTIFF, JMP, A MINOR (Document 37)
Petitioner Henry J. Parson, Jr., filed the instant petition for an order approving compromise of the claim of Plaintiff JMP on January 15, 2009. The petition was heard on February 20, 2009, before the Honorable Dennis L. Beck, United States Magistrate Judge. Charles Chapman appeared on behalf of Plaintiff JMP, who was present with petitioner Henry J. Parson, Jr., his guardian ad litem. There was no appearance by Defendants.
The minor, JMP, is a male born on October 8, 1991, and is approximately seventeen years of age. Petitioner Henry J. Parson, Jr., is the father and guardian ad litem of JMP. Petitioner also is a plaintiff in this action. The action arises out of an incident that took place on or about September 24, 2006. According to the moving papers, it is alleged that Bakersfield Police Department Sergeant Jon Scott was involved in a high speed pursuit of a car that he thought had been involved in a robbery earlier that night. Sergeant Scott reportedly chased the car into the parking lot of an apartment complex where he rammed the car with his patrol car.
Petitioner explains that the driver of the car got out and ran. Sergeant Scott allegedly jumped out of his car and opened fire. He fired three times. One bullet shattered the rear side window of a car parked in an adjacent parking stall. Another bullet penetrated a wooden patio fence and was stopped by a bundle of heavy canvas. The third bullet penetrated the wooden patio fence and traveled through a sliding glass door into an apartment bedroom. The bullet hit the left ankle of the minor's father who had been awakened by the loud commotion outside his apartment.
Petitioner further explains that the minor, JMP, was asleep inside the bedroom when the bullet hit his father. The shattering window woke him up. When the minor's father realized he had been shot, he had the minor call 911. The minor then realized that his father had been shot. The minor allegedly suffered emotional distress, but has since recovered.
According to Petitioner's allegations, it was later determined by the Bakersfield Police Department that Sergeant Scott violated several basic gun safety rules and the use-of-force policy by firing his weapon in the parking lot of an occupied apartment complex.
The present action was filed on October 9, 2007. The complaint alleges causes of action for: (1) violation of Plaintiffs' rights under the Fourteenth Amendment pursuant to 42 U.S.C. section 1983; (2) violation of California Bane Act, California Civil Code section 52.1; (3) assault and battery; (4) bystander emotional distress; and (5) negligence.
The parties participated in voluntary mediation before Oliver U. Robinson, Esq., on December 4, 2008. At mediation, Defendants offered $5,000.00 in consideration of a full and final release and discharge of and from all claims, charges, and demands of JMP, the minor, arising from the incident. The parties reached a complete settlement of the matter and have filed a notice of settlement.
Petitioner seeks approval for payment out of the settlement proceeds as follows: (1) the sum of $3,750.00 to be deposited in an insured account subject to withdrawal only upon authorization of the Court until said time as JMP reaches the age of majority; and (2) the sum of $1,250.00 payable to Rodriguez and Associates for attorney's fees.
This Court's Local Rule 17-202 addresses settlements for minors and provides in pertinent part:
(b) Settlement. No claim by . . . a minor . . . may be settled or compromised absent court order by the Court in approving the settlement or compromise.
. . . (2) Such application [for minor's compromise] shall disclose, among other things, the age and sex of the minor . . . , the nature of the causes of action to be settled or compromised, the facts and circumstances out of which the causes of action arose, including the time, place and persons involved, the manner in which the compromise amount or other consideration was determined, including such additional ...