United States District Court, S.D. California
MILA SHEN, by and through her guardian ad litem Peggy Shen Brewster; EDWIN SHEN, an individual; JOYCE SHEN, an individual; ZOE SHEN and VESPER SHEN, by and through their guardian ad litem Peggy Shen Brewster, Plaintiffs,
CLUB MED SAS, a corporation; CLUB MED SALES, INC.; CLUB MED MANAGEMENT SERVICES, INC.; and DOES 1 to 50, Defendants.
ORDER: (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION; AND (2) GRANTING THE PETITIONS FOR MINORS
COMPROMISE [DOC. NOS. 40 AND 41]
ROGER T. BENITEZ, UNITED STATES DISTRICT JUDGE
the Court are the petitions of guardian ad litem
Erik Brewster to approve the compromise of the pending action
on behalf of minor Plaintiffs Mila Shen, Zoe Shen, and Vesper
Shen (“minor Plaintiffs”). (Doc. No. 40.) United
States Magistrate Judge Bernard G. Skomal filed a Report and
Recommendation recommending the petitions be granted. (Doc.
No. 41.) Based on the Court's review of the moving
papers, the law, and for the reasons set forth below, the
Court ADOPTS the Magistrate Judge's
Report and Recommendation and GRANTS the
August 8, 2018, minor Plaintiffs Mila, Zoe, and Vesper Shen,
together with their parents, Plaintiffs Edwin and Joyce Shen,
attended a performance at the Club Med Hotel in Tomamu
Hokkaido, Japan. (Doc. No. 41 at 2.) At the performance,
General manager Merlin Chelliah gathered the children to the
front of the stage to have them partake in a sake barrel
breaking ceremony. Id. During the ceremony, Ms.
Chelliah's wooden mallet slipped out of her hand and hit
Mila in the center of her forehead. Id. She suffered
a nondisplaced frontal skull fracture and today has a
prominent scar across her forehead. Id. She received
emergency treatment, imaging, a neurological examination,
plastic surgery, and therapy for emotional trauma.
Id. Mila was seven years old at the time of the
injury. Id. Her parents and sisters Zoe and Vesper
witnessed Mila's injury causing them emotional distress.
action was initially filed in California Superior Court but
was subsequently removed to this Court on February 20, 2019.
Id. The Plaintiff's Complaint alleges claims of
negligence, negligent infliction of emotional distress, and
negligent misrepresentation. Id. The Defendants
filed motions to dismiss for lack of personal jurisdiction.
Id. Magistrate Judge Skomal held an Early Neutral
Evaluation and Case Management Conference on September 4,
2019. Id. The case did not settle, and a scheduling
order was issued. Id. On September 30, 2019,
Plaintiffs filed their opposition to Defendants' Motion
to Dismiss. Id. On October 18, 2019, the parties
filed a joint notice of settlement. Id. Thereafter,
on November 1, 2019, guardian ad litem Erik Brewster
filed petitions for approval of the minor's compromise of
claims as to Mila, Zoe, and Vesper Shen. Id. On
December 19, 2019, Magistrate Judge Skomal issued a Report
and Recommendation recommending the Petitions be granted as
to all three minor Plaintiffs. (Doc. No. 41.) Since then, the
parties filed a Joint Waiver of the Fourteen Day Objection
Period for Approval of Minors' Compromise on December 27,
2019. (Doc. No. 42.)
courts have a special duty, derived from Federal Rule of
Civil Procedure 17(c), “to safeguard the interests of
litigants who are minors.” Robidoux v.
Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). In the
context of proposed settlements in suits involving minor
plaintiffs, this special duty requires a district court to
“conduct its own inquiry to determine whether the
settlement serves the best interests of the minor.”
Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir.
1978); 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”).
Ninth Circuit has also made clear that, in cases involving
the settlement of federal claims, district courts should
“limit the scope of their review to the question
whether the net amount distributed to each minor plaintiff in
the settlement is fair and reasonable in light of the facts
of the case, the minor's specific claim, and recovery in
similar cases, ” and should “evaluate the
fairness of each minor plaintiff's net recovery without
regard to the proportion of the total settlement value
designated for the adult co-plaintiffs or plaintiffs'
counsel - whose interests the district court has no special
duty to safeguard.” Robidoux, 638 F.3d at
1181-82 (citing Dacany, 573 F.2d at 1078). “So
long as the net recovery to each minor plaintiff is fair and
reasonable in light of their claims and average recovery in
similar cases, the district court should approve the
settlement as proposed by the parties.” Id. at
the Petitions along with the Declarations filed in support of
each, the Court agrees with Magistrate Judge Skomal's
conclusion that a gross settlement sum of $500, 000 is
reasonable in light of the facts of this case, the causes of
action brought, and recoveries received by similarly situated
the proposed settlement will result in payment (after
attorney's fees and costs) of $299, 707.18 to Mila,
$45, 091 to Zoe, and $45, 091 to Vesper. (Doc. No. 41 at
5.) Upon receipt of payment, the funds will be deposited into
separate settlement annuity accounts set up for each of the
minor Plaintiffs. Id. Under this arrangement, when
the minor Plaintiff turns eighteen (18) years of age, she
will receive one disbursement payment a year, for four years,
from her individual annuity account. Id. The Court
agrees with Magistrate Judge Skomal's assessment that the
proposed methods of disbursement are “fair, reasonable,
and within the bounds of applicable law” as to each of
the minor Plaintiffs. Id. at 6.
Court also finds that the amount deducted from the total
recovery for attorney's fees is reasonable.
Attorney's fees and costs are typically controlled by
statute, local rule, or local custom. Generally, fees in
minors' cases historically have been limited to
twenty-five percent (25%) of the gross recovery. Napier
by & through Quiroz v. San Diego Cty., No.
3:15-cv-00581-CAB-KSC, 2017 WL 5759803, at *3 (S.D. Cal. Nov.
28, 2017. To determine whether the fee is reasonable courts
consider a myriad of factors including the amount of the fee
in proportion to the value of the services performed; the
novelty and difficulty of the questions involved and skills
required; the amount involved and the results obtained; and
the experience and ability of the attorney. Cal. Rule of Ct.
minor Plaintiffs' counsel seeks $100, 000 in
attorney's fees, a sum that represents twenty percent
(20%) of the $500, 000 gross settlement. (Doc. No. 41 at
7.) Counsel has provided no documentation in support of this
request. Nonetheless, the Court finds that in consideration
of the duration of this case, the amount of work performed by
Plaintiffs' counsel, and the fee request's adherence
to an amount which is less than the twenty-five percent (25%)
limit historically applied, the amount of attorney's fees
sought, in this case, is reasonable and does not suggest that
the settlement is unfair.
the Court finds that an award of $8, 928.38 to cover
litigation costs of the Plaintiffs' counsel is also fair
and reasonable under the circumstances. These include,
amongst other costs, $2, 500 in expert fees, $3, 019.45 for
translations, and $1, ...