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Livingston v. Kempersports Management, Inc.

United States District Court, E.D. California

August 28, 2014

KRISTINE LIVINGSTON, et al. Plaintiffs,
v.
KEMPERSPORTS MANAGEMENT, INC., Defendant.

ORDER GRANTING THE APPLICATION FOR MINOR'S COMPROMISE OF IZAAK MARK LIVINGSTON, A MINOR

SHEILA K. OBERTO, Magistrate Judge.

I. INTRODUCTION

On May 6, 2014, a Settlement Conference was held in this case before the undersigned, and the case settled. (Docs. 59-67.) On August 13, 2014, Plaintiff/Petitioner Kristine Livingston ("Livingston") filed an Application of Petitioner Kristine Livingston, Guardian Ad Litem, for Approval of Minor's Compromise for Izaak Mark Livingston, a Minor ("Minor's Petition"). (Doc. 69.) Livingston is the mother and the court-appointed guardian ad litem of Minor Plaintiff Izaak Mark Livingston ("Minor Plaintiff").

The Court has reviewed the Minor's Petition and supporting documents and determined that this matter is suitable for decision without oral argument pursuant to the Local Rules of the United States District Court, Eastern District of California, Rule 230(g). For the reasons set forth below, the Minor's Petition is APPROVED and GRANTED.

II. BACKGROUND

Kristine Livingston, individually and on behalf of Izaak Livingston (a minor), Jason Alan Livingston, and Wesley Alexander Livingston (collectively "Plaintiffs") filed the Complaint against Defendant Kempersports Management, Inc. ("Defendant") on March 14, 2012, in the Tulare County Superior Court. (Doc. 2.) On April 30, 2012, the Tulare County Superior Court appointed Kristine Livingston as the guardian ad litem for her son Izaak Livingston. On August 30, 2012, Defendant removed the action to this Court based on diversity. (Doc. 2.)

Plaintiffs' complaint asserted claims stemming from the death of Mark Livingston, Kristine Livingston's deceased husband and the father of Minor Plaintiff and adult sons Jason Livingston and Wesley Livingston. (Doc. 2, 12.) In May 2007, Mark Livingston was hired as the Golf Course Superintendent for Ridge Creek Dinuba Golf Club in the County of Tulare, California. (Doc. 2, 13.) In 2009, Defendant suspended Mark Livingston because other employees under his supervision were engaging in timecard fraud. Defendant ultimately terminated Mark Livingston's employment on March 15, 2010. Shortly thereafter, Mark Livingston suffered a heart attack and died on March 23, 2010. (Doc. 2, 13.) Defendant later promoted the same employees who allegedly committed timecard fraud to assume many of his duties, at lower pay rates than Mark's salary. (Doc. 2, 13.)

Plaintiffs alleged that Defendant discriminated against Mark Livingston, who was 55, in order to replace him with younger and less expensive employees. Plaintiffs asserted claims against Defendant under California's Fair Employment and Housing Act ("FEHA") for age discrimination, gender discrimination, several types of disability discrimination, and retaliation. Plaintiffs alleged that as a result of Mark Livingston's wrongful termination, he died of cardiac arrest. Plaintiffs sought damages for loss of economic support, loss of payment of medical bills, payment of funeral expenses, general damages, attorney's fees, costs of suit, prejudgment interest, and other relief as the court sought proper. (Doc. 2, 18-31.)

The parties participated in a voluntary settlement conference before Magistrate Judge Sheila K. Oberto on May 6, 2014. At the settlement conference, the parties agreed that Petitioner would waive all of her claims in this action against Defendant, and dismiss her claims with prejudice in exchange for a waiver of costs and fees. The parties also agreed that plaintiffs Wesley Livingston and Jason Livingston would dismiss their claims against Defendant with prejudice in exchange for a waiver of costs and fees. (Doc. 65.) As a result, the Minor Plaintiff's claim is the sole subject of the settlement.

At the settlement conference, Petitioner also agreed to resolve Izaak's claim against Defendant in exchange for a full release of all claims. (Doc. 69, 3.) The parties agreed that Defendant will pay a total of $57, 500.00, structured as follows:

1) Defendant will fund a structured settlement on behalf of the Minor Plaintiff with a present value of $25, 000;
2) Defendant will pay to Plaintiffs' attorney, Dean B. Gordon, $20, 000 as reimbursement for his reasonable costs expended; and
3) Defendant will pay to Plaintiffs' attorney, Dean B. Gordon, $12, 550 as attorney fees.

On May 9, 2014, Defendant filed a Joint Notice of Settlement indicating the parties had settled the action and Plaintiffs would file a Stipulation for Dismissal with Prejudice within 30 days. (Doc. 63.) On June 10, 2014, Plaintiffs filed a Stipulation and Proposed Order dismissing all claims other than those of the Minor Plaintiff with prejudice, and the Court issued an order dismissing the claims of Kristine Livingston, Jason Livingston, and Wesley Livingston on June 13, 2014. (Docs. 65, 67.) On July 29, 2014, the Court issued a minute order reminding Plaintiffs that pursuant to the Order, an application for approval to compromise the claim of the Minor Plaintiff Izaak Mark Livingston was to be filed within two weeks by Plaintiffs' counsel. (Doc. 68.) The Court ordered that Plaintiff Izaak Mark Livingston, ...


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