D.D. v. County of Kern

• Court: District Court, E.D. California
• Decided: January 25, 2021
• Docket: 1:20-cv-00064
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 D.D., ) Case No.: 1:20-cv-00064-DAD-JLT ) 12 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) GRANTING APPROVAL OF THE COMPROMISE 13 v. ) ON BEHALF OF MINOR PLAINTIFF D.D. ) 14 COUNTY OF KERN, et al., ) (Doc. 22) 15 ) Defendants. ) 16 )

17 In this action, D.D. by and through his guardian ad litem, Tom Durbin, claimed that he was 18 subjected to excessive force by the defendant juvenile corrections officer. The plaintiff seeks the 19 Court’s approval for the settlement. (Doc. 22.) Because the Court finds the proposed settlement of the 20 child’s claims to be fair and reasonable, the Court recommends that the minor’s compromise be 21 approved.1 22 I. Factual and Procedural History 23 This case arises from an incident that occurred in the James G. Bowles Juvenile Hall in Kern 24 County, California on January 17, 2019. (Doc. 23 at 4; Doc. 1 at 5-7, Complaint ¶¶ 22-36.) Plaintiff, 25 who has been diagnosed with autism and other disabilities, alleges through his father/guardian ad litem 26 27

28 1 Because the motion is unopposed and because the memorandum in support of the petition adequately sets forth the 1 that he was subjected to excessive force by the defendant juvenile corrections officer. (Id.) This force 2 resulted in a broken elbow that required surgery, three screws, and a lengthy recovery period. (Id.) 3 The complaint alleges civil rights violations and claims for relief under state law. (Doc. 23 at 4 4.) Liability is contested, and defendants deny the allegations and contend that the force used was 5 appropriate under the circumstances. (Id.) Specifically, Defendant Cloud contends that Plaintiff’s 6 injury resulted from Plaintiff’s attempts to pull away from him, such that Plaintiff caused the injury to 7 himself. (Id.) Plaintiff alleges that what the defendant juvenile corrections officer interpreted as the 8 non-compliant behavior justifying force—attempting to walk back to his cell—was what Plaintiff had 9 been taught to do when confronted with a social situation that triggered uncontrollable anxiety. (Id.) 10 Plaintiff was evaluated immediately after the injury and was diagnosed with a fracture “of the 11 lateral supracondylar humerus extending down into the lateral humeral condyle . . . The fracture line 12 extends to the joint surface.” (Doc. 23 at 4; Seabaugh Decl., Ex “B”.) The surgery was performed 13 successfully in January 2019, and Plaintiff received follow-up care and physical therapy for the injury 14 regularly over the subsequent six months, for a total of ten additional doctors’ visits. (Doc. 23 at 5.) He 15 wore a splint for two weeks, was instructed to avoid bearing any weight with the injured arm 16 throughout the recovery period and was advised to avoid any risk to falling or re-injuring the arm. 17 (Doc. 23 at 5; Doc. 23 at 39, Durbin Decl., ¶ 3.2) In a follow-up medical visit on March 5, 2019, the 18 treating physician observed: “There has been almost complete healing of the lateral humeral condylar 19 fracture. The transfixing screws remain intact and in place. Fracture and elbow joint alignments are 20 anatomic. There is no acute bony abnormality.” (Doc. 23 at 5; Seabaugh Decl., Ex “B”.) At the 21 successful conclusion of the physical therapy sessions in June 2019, treatment was discontinued, and 22 no additional medical treatment was recommended. (Doc. 23 at 5.) 23 Plaintiff continues to complain of limited range of motion and diminished strength in the 24 injured arm. (Doc. 23 at 5; Doc. 23 at 39, Durbin Decl., ¶ 4.) He also experiences aches and 25 discomfort when he exerts the injured arm. (Id.) However, his symptoms are consistent with what the 26 family understood they were to expect in terms of the lengthy process of recovery, and these 27

28 2 The Court notes that the paragraph numbering in the declaration of Tom Durbin is not sequential; the paragraph 3 1 symptoms are expected to improve with time and with exercises at home. (Id.) Plaintiff has not sought 2 any additional evaluation or treatment for his condition following the conclusion of his physical 3 therapy sessions in June 2019. (Id.) In the event he requires additional treatment in the future, the 4 settlement proceeds will more than suffice for him to purchase and maintain health insurance and to 5 purchase any desired future treatment (such as additional physical therapy sessions once the 6 quarantine is over). (Id.) 7 No outstanding balance is owed by Plaintiff to Kern Medical, where the surgery was 8 performed, as the cost was paid or otherwise adjusted by the County of Kern (which has not asserted 9 and has agreed to waive any claim for reimbursement as part of the settlement). (Doc. 23 at 5-6; 10 Seabaugh Decl., Ex “B”; Seabaugh Decl., ¶ 18 (settlement demand and conditions).) The physical 11 therapy sessions were covered by Medi-Cal, which asserts a lien for reimbursement in the amount of 12 $374.37 (reduced from $499.16). (Doc. 23 at 6; Seabaugh Decl., Ex “B”.) 13 Accordingly, Plaintiff’s recoverable past economic damages are $374.37 only. (Doc. 23 at 6; 14 Seabaugh Decl., ¶ 4.) The remainder of the $25,000 settlement is to account for Plaintiff’s claims for 15 past and future physical pain, mental suffering, loss of enjoyment of life, disfigurement, physical 16 impairment, inconvenience, grief, anxiety, humiliation, and emotional distress, which would otherwise 17 be determined by a jury at trial. (Id.) Plaintiff also seeks punitive damages, also in amounts that would 18 be determined at trial. (Id.) In addition, while no future treatment has been recommended or planned at 19 this time, the settlement will permit Plaintiff to purchase and maintain health coverage in the event 20 future evaluation or treatment may be desired in relation to the injured arm. (Doc. 23 at 6; Seabaugh 21 Decl., ¶ 5.) 22 On December 15, 2020, Plaintiff filed a notice of settlement indicating that the parties reached 23 a settlement. (Doc. 20.) Accordingly, the Court ordered the parties to file a petition for approval of the 24 minor’s compromise. (Doc. 21.) On December 30, 2020, Plaintiff filed a petition for approval of the 25 minor’s compromise. (Doc. 22.) Plaintiff also filed a confidential memorandum in support of the 26 petition. (Doc. 23.) 27 II. Settlement Approval Standards 28 No settlement or compromise of “a claim by or against a minor or incompetent person” is 1 effective unless it is approved by the Court. Local Rule 202(b). The purpose of requiring the Court’s 2 approval is to provide an additional level of oversight to ensure that the child’s interests are protected. 3 Toward this end, a party seeking approval of the settlement must disclose: 4 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, 5 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 6 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 7 inform the Court whether the injury is temporary or permanent.

8 Local Rule 202(b)(2). 9 The Ninth Circuit determined that Federal Rule of Civil Procedure 17(c) imposes on the Court 10 the responsibility to safeguard the interests of child-litigants. Robidoux v. Rosengren, 638 F.3d 1177, 11 1181 (9th Cir. 2011). Thus, the Court is obligated to independently investigate the fairness of the 12 settlement even where the parent has recommended it. Id. at 1181; see also Salmeron v. United States, 13 724 F.2d 1357, 1363 (9th Cir. 1983) (holding that “a court must independently investigate and evaluate 14 any compromise or settlement of a minor’s claims to assure itself that the minor’s interests are 15 protected, even if the settlement has been recommended or negotiated by the minor’s parent or guardian 16 ad litem”). Rather than focusing on the amount of fees to be awarded, the Court must evaluate whether 17 the net amount to the child is fair and reasonable “without regard to the proportion of the total 18 settlement value designated for adult co-plaintiffs or plaintiffs’ counsel” and “in light of the facts of the 19 case, the minor’s specific claim, and recovery in similar cases.” Robidoux, 638 F.3d at 1181-1182. 20 III. Discussion and Analysis 21 The petition for approval of the settlement reached on behalf of the child D.D. sets forth the 22 information required by Local Rule 202(b)(2). D.D. was a minor and turned 18 while this action was 23 pending. (Doc. 23 at 3-4.) However, Plaintiff provides that in light of his young age and his prior 24 diagnoses with autism and other mental health conditions, he has consented for his father to continue 25 in the role of his guardian ad litem. (Id. at 4.) Plaintiff, through his guardian ad litem, asserts that the 26 child’s damages arise from being subjected to excessive force by the defendant juvenile corrections 27 officer. (Id.) 28 /// 1 A. Award to D.D. 2 The proposed gross settlement of this claim is $25,000, to be distributed as follows: Medi-Cal 3 Lien, $374.37; Attorney’s Fee, $5,625.00; Attorney’s Reimbursed Costs, $778.48; and Disbursement 4 to Client, $18,222.15. (Doc. 23 at 2.) The funds are proposed to be made payable to the Law Office of 5 Thomas C. Seabaugh Client Trust Account, from which the outstanding lien will be paid and the net 6 proceeds will be disbursed in the form of a check made out to both D.D. and Tom Durbin. (Id. at 6.) 7 In terms of the plans for the use of the funds, D.D. and his father have discussed this, and their 8 proposed plan is to make $1,000 available immediately to D.D. for his personal use, and for the 9 balance to be placed in a long-term savings account in D.D.’s name. (Doc. 23 at 6-7; Doc. 23 at 39, 10 Durbin Decl., ¶ 5.) D.D. has promised to use these funds only to purchase and maintain health 11 insurance, to pursue additional education after high school if he wishes, to make a down payment on a 12 condo or house once he is able to live and support himself independently, to pay for any future 13 medical care in connection with his injured arm that is for any unforeseen reason not covered by 14 insurance, or to meet D.D.’s other reasonable needs. (Id. at 7; Doc. 23 at 39-40, Durbin Decl., ¶ 5.) 15 The funds will be used for the benefit of D.D. only, and D.D. has agreed to this framework to make 16 sure that the funds are not squandered or spent frivolously. (Id.) 17 B. Proposed Attorney Fees and Costs 18 Following the incident, Tom Durbin initially contacted and consulted with the local 19 Bakersfield law firm of Chain Cohn Stiles, who referred the case to The Law Office of Thomas C. 20 Seabaugh, who agreed to be jointly retained along with Chain Cohn Stiles. (Doc. 23 at 7.) The retainer 21 agreement is a contingency fee agreement providing for the attorney’s fee to equal 40 percent of any 22 gross recovery, divided 90 percent to The Law Office of Thomas C. Seabaugh and 10 percent to Chain 23 Cohn Stiles, and for any costs advanced to be reimbursed from the settlement proceeds. (Id.; see 24 Seabaugh Decl., ¶ 6; Exh. “A”.) As a condition of the settlement, Plaintiff’s attorneys have agreed to 25 reduce their contingency fee percentage from 40 percent to 25 percent, and Chain Cohn Stiles will 26 waive its fee. (Doc. 23 at 7; Seabaugh Decl., ¶ 8.) Accordingly, The Law Office of Thomas C. 27 Seabaugh on this application proposes only a contingency fee of 22.5 percent of the gross recovery, or 28 $5,625. (Doc. 23 at 7-8; Seabaugh Decl., ¶ 8.) 1 Plaintiff’s attorney asserts that the proposed attorney’s fee is reasonable, in light of the fact that 2 the attorney has worked on the case for more than a year and a half—since May 1, 2019. (Doc. 23 at 8; 3 Seabaugh Decl., ¶ 12.) Plaintiff’s attorney also states that this work included extensive consultations 4 and communications with Plaintiff and his father throughout the process, the preparation of the 5 government claim, ensuring compliance with applicable deadlines and statutes of limitations, 6 preparing and filing the complaint, serving and reviewing initial disclosures, propounding and 7 responding to written discovery, obtaining and reviewing the medical records (a protracted task during 8 the pandemic), ascertaining the amount of any lien, and advising the client through the litigation and 9 then through the settlement process. (Doc. 23 at 9; Seabaugh Decl., ¶ 16.) 10 Plaintiff’s counsel sets forth that reimbursement for advanced costs is claimed in the amount of 11 $48.48 for records retrieval and copies, $330.00 for service of process, and the filing fee of $400. 12 (Doc. 23 at 9; Seabaugh Decl., ¶ 17, Exhibit “C.”) Accordingly, the total requested reimbursement of 13 advanced costs is $778.48. (Id.) 14 Based upon the actions taken by counsel, and the fact that Plaintiff’s guardian ad litem 15 indicates his assent to the fees and costs requested (see Doc. 23 at 38, Durbin Decl. ¶ 2, 4), the Court 16 finds the award is reasonable. 17 C. Recovery in Similar Actions 18 As noted above, the Court must consider the outcome of similar cases to determine whether the 19 sum to settle the child’s claims is reasonable. See Robidoux, 638 F.3d at 1181; Salmeron, 724 F.2d at 20 1363. Although Plaintiff did not identify any similar actions to support the approval of the minor’s 21 compromise, the Court finds the recovery is appropriate considering those received in other actions. 22 For example, in K.B. v. City of Visalia, 2016 U.S. Dist. LEXIS 132612, *2 (E.D. Cal. Sept. 27, 23 2016), K.B. was detained when he was eloping from school. It was alleged that the defendants knew 24 or should have known that K.B. was a special needs child with behavioral issues, including ADHD 25 and anxiety, and that defendants disregarded the behavioral issues when the detention of K.B. 26 occurred, resulting in unnecessary injury to the minor. Id. It was also alleged that K.B. sought 27 additional therapy sessions and calming medications as a result of the incident. Id. The minor’s 28 distribution was $11,685.15. Id. at *11. 1 Additionally, in T.L. v. S. Kern Unified Sch. Dist., 2019 U.S. Dist. LEXIS 117517 (E.D. Cal. 2 July 15, 2019), T.L., a minor with attention deficit hyperactivity disorder and other mental 3 impairments, got into a physical altercation with another student and the Southern Kern Unified 4 School District responded to the incident by suspending T.L. and recommending that he be expelled. 5 Id. at *1-2. T.L. contested the District’s action by filing a complaint with the California Office of 6 Administrative Hearings under IDEA and California’s special education laws, and after a hearing, the 7 OAH issued a decision in favor of T.L., finding that T.L.’s conduct was a manifestation of his 8 disabilities. Id. at *2. The settlement proceeds for the minor in that case was $24,750.00. Id. at *5. 9 Based upon the information provided in the motion and the supporting documents and 10 considering the totality of the facts and circumstances of this case, the Court finds the settlement 11 agreement is fair, reasonable, and in the best interests of the child. 12 IV. Findings and Recommendations 13 Based upon the foregoing, the Court RECOMMENDS that the petition for approval of 14 settlement be APPROVED IN FULL and that the parties be DIRECTED to file with the Court a 15 stipulation for dismissal of the action with prejudice, and lodge a separate order, no later than 45 days 16 after these findings and recommendations are adopted. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 19 Rules of Practice for the United States District Court, Eastern District of California. Within 14 days 20 after being served with these findings and recommendations, any party may file written objections 21 with the Court and serve a copy on all parties. Such a document should be captioned “Objections to 22 Magistrate Judge’s Findings and Recommendations.” The parties are advised that failure to file 23 objections within the specified time may waive the right to appeal the district judge’s order. Martinez 24 v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 26 IT IS SO ORDERED.

27 Dated: January 24, 2021 /s/ Jennifer L. Thurston 28 UNITED STATES MAGISTRATE JUDGE