Garlick v. County of Kern

          FINDINGS AND RECOMMENDATIONS GRANTING APPROVAL OF THE COMPROMISE ON BEHALF OF MINOR PLAINTIFFS MLS, CJS, CRS, AND EZS (DOC. 238)

          JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE

         This matter arises out of the death of David Silva which, it is claimed, was caused by the application of excessive and unreasonable use of force by various law enforcement officers. Minor Plaintiffs MLS, CJS, CRS and EZS, are surviving children of the decedent, and seek approval of the settlement reached with Defendants, by and through their guardian ad litem Judy Garlick ("Petitioner"). (Doc. 238) For the following reasons, the Court recommends the motion for approval of the settlement be GRANTED.

         I. Factual and Procedural History

         Plaintiffs initiated this action, alleging Defendants are responsible for the wrongful death of David Silva, who was the boyfriend of Plaintiff Tara Garlick, the father of the minor plaintiffs, and the son of Plaintiffs Merri and Salvador Silva. (See generally Docs. 2, 78) Plaintiffs assert eleven causes of action in the Second Amended Complaint: (1) excessive force in violation of the Fourth Amendment; (2) "integral participation" in violation of the Fourth Amendment; (3) failure to intervene in violation of the Fourth Amendment; (4) denial of medical care in violation of the Fourth Amendment; (5) violation of the substantive due process rights of Salvador Silva^[1], Merri Silva, Tara Garlick, the minor Plaintiffs, and David Silva; (6) municipal liability under 42 U.S.C. § 1983; (7) failure to train; (8) unconstitutional customs or policies; (9) battery; (10) negligence; and (11) a violation of the Bane Act, Cal. Civ. Code § 52.1 (See generally Doc. 78)

         II. Settlement Approval Standards

         No settlement or compromise of "a claim by or against a minor or incompetent person" is effective unless it is approved by the Court. Local Rule 202(b). The purpose of requiring the Court's approval is to provide an additional level of oversight to ensure that the child's interests are protected. Toward this end, a party seeking approval of the settlement must disclose:

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 . . . was determined, including such additional information as may be required to enable the Court to determine the fairness of the settlement or compromise, and, if a personal injury claim, the nature and extent of the injury with sufficient particularity to inform the Court whether the injury is temporary or permanent.

Local Rule 202(b)(2).

         The Ninth Circuit determined that Federal Rule of Civil Procedure 17(c) imposes on the Court the responsibility to safeguard the interests of child-litigants. Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). Thus, the Court is obligated to independently investigate the fairness of the settlement even where the parent has recommended it. Id., at 1181; see also Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983) (holding that "a court must independently investigate and evaluate any compromise or settlement of a minor's claims to assure itself that the minor's interests are protected, even if the settlement has been recommended or negotiated by the minor's parent or guardian ad litem"). Rather than focusing on the amount of fees to be awarded, the Court must evaluate whether the net amount to the child is fair and reasonable "without regard to the proportion of the total settlement value designated for adult co-plaintiffs or plaintiffs' counsel" and "in light of the facts of the case, the minor's specific claim, and recovery in similar cases." Robidoux, 638 F.3d at 1181-1182.

         III. Discussion and Analysis

         The petition for approval of the settlement reached on behalf of minors MLS, CJS, CRS and EZS sets forth the information required by Local Rule 202(b)(2). MLS is thirteen years old, CJS is eleven years old, CRS is seven years old, and EZS is five years old. (Doc. 238-1 at 2-3) MLS, CJS, and CRS are the daughters of the decedent, and CRS is the decedent's son. (Id.) The children are currently residing with their mother, Tara Garlick, in Nebraska. (Id.)

         Petitioner Judy Silva-the guardian ad litem for MLS, CJS, CRS and EZS-asserts that the minor's damages "arise from (1) injuries suffered by their father, for which they can recover damages as their father's heirs and successor in interest, and (2) damages for the violation of their constitutional right to a familial relationship with their father and individual loss of their father's financial support, as well as the loss of love, comfort, affection, society and companionship that they would have shared with their father." (Doc. 238-1 at 4) Defendants have agreed to pay $3, 000, 000.00 to Plaintiffs MLS, CJS, CRS, EZS, Merri Silva and Chris Silva.^[2] (Id. at 5) From this amount, $1, 200, 000 would go to the minor Plaintiffs. (Id. at 6)

         A.Award to Minors MLS, CJS, CRS, EZS

         After the payment of the proposed attorney fees and costs, the sum of $1, 200, 000 is to be allocated among MLS, CJS, CRS, EZS. (Doc. 238-1 at 6) Thus, each minor will receive $300, 000.00 from the settlement. (Id.) The money allocated to the children will "be paid by Starr Indemnity and Liability Company; Starr Companies for the purchase of an annuity on behalf of [each minor] plaintiff." (See Id. at 6- 11) Petitioner reports, "The parties have arranged for the purchase of a tax-free structured settlement annuity [policies] from Berkshire Hathaway Life Insurance Company of Nebraska through broker Tom Stevenson of Atlas Settlements." (See Id. at 7-10) With the annuity policies, MLS has a guaranteed benefit of $446, 000.00; CJS has a guaranteed ...