United States District Court, E.D. California
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 ...