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Zuleima Botello, A Minor, By and Through Her Guardian Ad Litem v. Morgan Hill Unified School District

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


June 6, 2011

ZULEIMA BOTELLO, A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, PLAINTIFF,
v.
MORGAN HILL UNIFIED SCHOOL DISTRICT, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

E-filed June 6, 2011

NOT FOR CITATION

ORDER GRANTING APPLICATION FOR APPROVAL OF MINOR'S COMPROMISE

[Re: Docket No. 51]

BACKGROUND

Minor plaintiff Zuleima Botello ("Botello"), a former seventh-grade student within the defendant Morgan Hill Unified School District ("MHUSD"), was allegedly harassed by her 20 classmates because she is a lesbian or is perceived to be a lesbian. This harassment culminated in April 2008 when another student physically attacked Botello at school, causing her to suffer a skull 22 fracture. Botello, through a guardian ad litem, then brought the instant action against MHUSD and 23 numerous other individual defendants affiliated with MHUSD (collectively, "Defendants"), alleging 24 that they failed to address and prevent the harassment against her in violation of federal and state 25 law.

At the pretrial conference held on January 26, 2011, the parties represented to the Court that they had reached a settlement. Docket No. 49. Now, the parties have submitted their proposed 28 settlement agreement and filed an application for this Court's approval of a minor's compromise.

Docket No. 51. safeguard the interests of litigants who are minors." Robidoux v. Rosengren, 638 F.3d 1177, 1181 6

LEGAL STANDARD

"District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c), to (9th Cir. 2011). "Rule 17(c) provides, in relevant part, that a district court 'must appoint a guardian 7 ad litem-or issue another appropriate order-to protect a minor or incompetent person who is 8 unrepresented in an action.'" Id. (quoting FED. R. CIV. P. 17(c)). "In the context of proposed 9 settlements in suits involving minor plaintiffs, this special duty requires a district court to 'conduct 10 its own inquiry to determine whether the settlement serves the best interests of the minor.'" Id. (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 1978)).

As the Ninth Circuit has recently made clear, in cases involving the settlement of a minor's federal claims*fn1 , district courts should "limit the scope of their review to the question whether the net 14 amount distributed to each minor plaintiff in the settlement is fair and reasonable, in light of the 15 facts of the case, the minor's specific claim, and recovery in similar cases," and should "evaluate the 16 fairness of each minor plaintiff's net recovery without regard to the proportion of the total 17 settlement value designated for adult co-plaintiffs or plaintiffs' counsel-whose interests the district court has no special duty to safeguard." Id. at 1181-82 (citing Dacanay, 573 F.2d at 1078).

Botello, through her guardian ad litem, has agreed to settle her claims against Defendants in exchange for $11,500. Docket No. 51, Ex. A ("Settlement Agreement"). Under his contingency fee agreement with Botello, in addition to his costs, Botello's counsel will receive 40% of the settlement 23 amount. Decl. of Falcocchia ¶ 8. This means that, at the end of the day, Botello will take home The Court finds this amount to be reasonable and in line with other similar cases. See, e.g., Deja Merie J v. San Francisco Unified School Dist., No. C-05-4788 VRW, 2006 WL 2348884, at *2

DISCUSSION

$5,080.79 in exchange for settling her claims. Decl. of Falcocchia, Ex. 1 ("Settlement Statement").

(N. D. Cal. Aug. 11, 2006) (Plaintiff settled for $10,000 in § 1983 action alleging that she was 2 sexually and physically assaulted by fellow student). While a 40% contingency fee strikes the Court 3 as a bit high, it cannot say that Botello's roughly $5,000 net amount is unreasonable. The Court 4 grants Botello's application. 5

CONCLUSION

Based on the foregoing, Botello's application for this Court's approval of a minor's compromise it GRANTED.

IT IS SO ORDERED.

C09-02121 HRL Notice will be electronically mailed to: John Joseph Falcocchia jjflawoffices@yahoo.com Mark E. Davis mdavis@davisyounglaw.com, dmyers@davisyounglaw.com Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.


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