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Hernandez v. City of Sacramento

United States District Court, E.D. California

July 15, 2019

JOHN HERNANDEZ, et al. Plaintiffs,
v.
CITY OF SACRAMENTO, et al. Defendants.

          JOHN L. BURRIS, Esq., SBN 69888 BEN NISENBAUM, Esq., SBN 250055 MELISSA C. NOLD, Esq., SBN PATRICK M. BUELNA, Esq., SBN 317043 LAW OFFICES OF JOHN L. BURRIS Airport Corporate Center Attorneys for Plaintiffs

          SECOND AMENDED PETITION APPOINTING GUARDIAN AD LITEM AND APPROVING SETTLEMENT AND ORDER

          HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE

         Petitioner HERB THOMAS respectfully represents:

         1. I am a California Licensed Professional Fiduciary and Registered Guardian. I own and operate Herb Thomas and Associates, Fiduciary Services, which I founded in 2004. I have extensive experience in financial planning, insurance and fiduciary responsibility. My Curricula Vitae, attached as Exhibit A hereto, accurately summarizes my experience, education, and licensing. I have worked extensively in assisting clients navigating the complexities of personal finance and public benefits. I have extensive experience in particular working with plaintiffs whose recoveries in civil lawsuits may potentially impact public benefits they receive. To that end, pursuant to my qualifications, I provide services as the trustee of special needs trusts on behalf of Plaintiffs like John Hernandez, who receive public benefits. I also act as a Guardian Ad Litem pursuant to my qualifications where a plaintiff is disabled and lacks competency to make their own legal decisions. In some cases, I have been both the Guardian Ad Litem and the trustee of special needs trusts for the same plaintiff.

         2. I have also recommended Dale Law Firm (a firm that specializes in estates and trusts) whose attorneys prepared a special needs trust titled the John Hernandez Special Needs Trust and is attached as Exhibit C.

         3. I became involved in this matter at the request of Plaintiff John Hernandez's attorneys, John Burris, Ben Nisenbaum, Melissa Nold and Patrick Buelna. I have become familiar with the facts of Mr. Hernandez's case, as well as his well-documented disability. I have also reviewed the settlement offered in this action to Mr. Hernandez, the monetary component of which is a $5, 000, 000.00 payment from the City of Sacramento. Should supplemental medical or psychiatric care be necessary for Mr. Hernandez, I would act as trustee for a special needs trust for Mr. Hernandez to provide for such supplemental care.

         4. Mr. Hernandez alleges causes of action against the named defendants herein for violations of his Fourth Amendment Rights under Federal and California law.

         5. Plaintiffs' causes of action arise out an incident which occurred on March 6, 2017, in which Defendants officers beat, tased and asphyxiated Mr. Hernandez, resulting in serious injuries.

         6. No. previous petition for appointment of guardian ad litem has been filed in this matter.

         7. I am willing to serve as Mr. Hernandez's Guardian Ad Litem. I am fully competent to understand and protect the rights of Mr. Hernandez and have no interest adverse to that of Hernandez.

         8. I request that I be appointed guardian ad litem for Mr. Hernandez, as denoted above, to prosecute the above-described causes of action on behalf of Mr. Hernandez, as denoted above, and for such other relief as the Court may deem just and proper.

         9. I am aware that John Hernandez, John Hernandez's biological mother and caretaker, as well as his separated wife, Jennifer Hernandez, approve of the proposed settlement and special needs trust.

         10. The proposed settlement of the case has a global settlement of $5, 200, 000.00 to be paid by the City of Sacramento to satisfy Mr. Hernandez and his daughter, H.E.'s claims for injury and all costs and attorneys' fees, and other non-monetary provisions described above in paragraph 2. The parties, H.E. and John Hernandez, have agreed to apportion $5, 000, 000 for John Hernandez's injuries and future medical costs, and $200, 000 for H.E.'s loss of her familial relationship to her father, John Hernandez The settlement shall be paid as follows:

a. Attorney fees for Mr. Hernandez shall be 45% of her total gross recovery, in the amount of $2, 250, 000.00, pursuant to the contingency fee agreement in this case. In addition, Plaintiff's counsel shall recover the litigation costs advanced in advancing Mr. Hernandez's case. The fees and costs include all attorney's fees and costs incurred by Plaintiff's instant counsel, the Law Offices of John L. Burris.
b. Plaintiffs' counsel shall recover litigation costs advanced in prosecuting this action as set forth: Total amount of litigation costs = $218, 124.84 c. Furthermore, attorneys' fees for preparation of the John Hernandez Special Needs ...

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