1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 J.D., a minor, by and through her Case No.: 22-cv-1124-RBM-BLM Guardian Ad Litem, Emine Demire; 12 and ALI DEMIR REPORT AND RECOMMENDATION 13 FOR ORDER GRANTING Plaintiffs, EX PARTE MOTION TO CONFIRM 14 v. MINOR’S COMPROMISE 15 COSTCO WHOLESALE [Dkt. Nos. 11, 13] 16 CORPORATION; and DOES 1-30, 17 Defendants. 18 19 Before the Court is Plaintiffs’ Ex Parte Motion to Confirm Minor’s 20 Compromise (the “Ex Parte Motion”). Dkt. No. 11. At the Court’s request, the 21 parties supplemented the Ex Parte Motion (the “Supplemental Submission”). See 22 Dkt. No. 13. The undersigned hereby submits this Report and Recommendation 23 to United States District Judge Ruth Bermudez Montenegro pursuant to 28 U.S.C. 24 § 636(b) and Civil Local Rules 17.1 and 72.1. Having reviewed the Ex Parte 25 Motion, the Supplemental Submission, the supporting declarations, and the 26 pleadings on file, and for the reasons stated below, the undersigned 27 RECOMMENDS that the District Court GRANT Plaintiffs’ Ex Parte Motion. 28 /// 1 I. 2 BACKGROUND 3 On May 14, 2020, after completing his shopping at Defendant’s store on 4 Morena Boulevard in San Diego, Plaintiff Ali Demir (“Demir”) exited the store with 5 his daughter J.D., who was then four years old and was riding in the child seat of 6 the shopping cart. See Dkt. No. 1-2 at 6, 8. The two began to “descend a steep 7 ramp to the parking lot,” at which time the shopping cart “flipped and fell down 8 forcefully to the ground.” Id. J.D.’s left femur was fractured during the incident. 9 Id. On April 22, 2022, Demir and J.D., through her guardian ad litem, sued 10 Defendant, stating causes of action for negligence, premises liability, and products 11 liability. See generally id. 12 On August 1, 2022, Defendant removed the action to this Court. Dkt. No. 1. 13 On September 15, 2022, Defendant answered the Complaint, denying all material 14 allegations and asserting 23 affirmative defenses. See Dkt. No. 4. Defendants’ 15 defenses included allegations of Plaintiffs’ comparative fault, their failure to 16 mitigate their damages, and that the alleged dangerous condition was open and 17 obvious. See generally id. 18 On October 27, 2022, the parties and their counsel participated in an Early 19 Neutral Evaluation before Magistrate Judge Barbara L. Major and reached an 20 agreement to settle the case. See Dkt. No. 7. This Ex Parte Motion followed. 21 II. 22 LEGAL STANDARDS 23 District Courts have a duty to safeguard the interests of minors in litigation. 24 Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983). When parties 25 settle an action involving a minor litigant, the Court must “‘conduct its own inquiry 26 to determine whether the settlement serves the best interests of the minor.’” 27 Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (citation omitted); 28 see also CivLR 17.1(a) (providing that “[n]o action by or on behalf of a minor or 1 incompetent will be settled, compromised, voluntarily discontinued, dismissed or 2 terminated without court order or judgment.”). The Court must conduct this inquiry 3 “even if the settlement has been recommended or negotiated by the minor’s parent 4 or guardian ad litem.” Salmeron, 724 F.2d at 1363. 5 Where a federal court exercises diversity jurisdiction over the minor plaintiff’s 6 state-law claims, the settlement should be evaluated with reference to applicable 7 state law. See DeRuyver v. Omni La Costa Resort & Spa, LLC, Case No. 3:17-cv- 8 0516-H-AGS, 2020 WL 563551, at *2 (S.D. Cal. Feb. 4, 2020) (citation omitted). 9 Under California law, a minor’s claims may only be compromised “with the 10 approval of the court in which the action is proceeding or pending.” Cal. Civ. Pro. 11 § 372. Recognizing that the Court “generally assumes . . . a role to assure that 12 whatever is done is in the minor’s best interests,” the Court’s “primary concern” in 13 evaluating the compromise of a minor’s claims “is whether the compromise is 14 sufficient to provide for the minor’s injuries, care and treatment.” Goldberg v. 15 Super. Ct., 23 Cal. App. 4th 1378, 1382 (1994). The Ninth Circuit directs that the 16 court should approve a minor’s compromise if the minor’s net recovery “is fair and 17 reasonable in light of their claims and average recovery in similar cases.” 18 Robidoux, 638 F.3d at 1182. Although Robidoux applies to settlement of federal 19 claims, the Court nevertheless finds its guidance instructive. 20 III. 21 DISCUSSION 22 A. The Settlement Is Reasonable and in J.D.’s Best Interests 23 As stated in the Ex Parte Motion, Plaintiffs have agreed to settle their claims 24 for gross consideration of $5,000, payable in its entirety to J.D. Dkt. No. 11 at 2; 25 Dkt. No. 13 at 2. J.D.’s mother and guardian ad litem, Emine Demir, has agreed 26 to the settlement and its terms on J.D.’s behalf, believing it to be in J.D.’s best 27 interests. Id. at 2; Dkt. No. 13-1 at 2. The parties propose that the money be held 28 /// 1 in a blocked account in J.D.’s name, from which no principal or interest can be 2 withdrawn, until J.D. reaches 18 years of age. Dkt. No. 13 at 3. 3 As alleged in the Complaint and reiterated in the Supplemental Submission, 4 J.D. was injured when a shopping cart pushed by Demir and in which she was 5 riding “flipped and fell down hard,” “trapp[ing]” her between the ground and the cart 6 and breaking her leg. See Dkt. No. 13 at 2. Plaintiffs report that J.D.’s past medical 7 expenses total $2,971.50 and that she “wear[s] special shoes to accommodate the 8 discrepancy in length” between her right and left legs.1 Id. Whether J.D. will 9 require ongoing care or treatment is unknown. Id. Demir, the other plaintiff in the 10 action, has forgone any monetary recovery for his “bystander injuries,” choosing 11 instead to allocate the entire settlement to J.D. Id. at 3. 12 The Court’s research demonstrates that a $5,000 recovery is within the 13 accepted range of settlements for similar claims and injuries in federal and state 14 courts within this Circuit, particularly where, as here, the minor’s past medical 15 expenses are amply covered by the settlement funds and the need for ongoing 16 treatment is not established.2 Indeed, the Court found several cases in which the 17
18 19 1 Before the matter was removed to this District, Plaintiffs represented that J.D.’s medical expenses were approximately $40,000. See Dkt. No. 1-5 at 2. However, during the November 20 21, 2022 hearing on the Ex Parte Motion, plaintiffs’ counsel explained that the $40,000 was a “billed” amount and that plaintiffs had since negotiated with the hospital to pay $2,971.50 in 21 satisfaction of that amount. Plaintiffs’ counsel also represented that none of J.D.’s care providers has asserted a lien against the settlement funds. 22 2 See, e.g., M.W. v. Safeway, Inc., 2019 WL 4511927 (W.D. Wash. Sept. 19, 2019) (approving 23 $12,000 settlement for minor who suffered headaches after being struck in the head by a shopping cart); N.M.S. pro ami Silveira v. Cty. of Los Angeles et al., JVR No. 1501120026 (Cal. 24 Sup. Ct. Mar. 21, 2013) ($11,000 gross settlement for minor who suffered facial laceration on a 25 carnival ride); C.S. pro ami Randall v. Kroger West d/b/a Ralphs Grocery Stores, JVR No. 1502180034 (Cal. Sup. Ct. Feb. 18, 2013) ($9,000 gross settlement for minor whose finger was 26 broken due to faulty bathroom stall door); Pineda vs. Target Corporation, 18 Trials Digest 15th 18 (N.D. Cal. Aug.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 J.D., a minor, by and through her Case No.: 22-cv-1124-RBM-BLM Guardian Ad Litem, Emine Demire; 12 and ALI DEMIR REPORT AND RECOMMENDATION 13 FOR ORDER GRANTING Plaintiffs, EX PARTE MOTION TO CONFIRM 14 v. MINOR’S COMPROMISE 15 COSTCO WHOLESALE [Dkt. Nos. 11, 13] 16 CORPORATION; and DOES 1-30, 17 Defendants. 18 19 Before the Court is Plaintiffs’ Ex Parte Motion to Confirm Minor’s 20 Compromise (the “Ex Parte Motion”). Dkt. No. 11. At the Court’s request, the 21 parties supplemented the Ex Parte Motion (the “Supplemental Submission”). See 22 Dkt. No. 13. The undersigned hereby submits this Report and Recommendation 23 to United States District Judge Ruth Bermudez Montenegro pursuant to 28 U.S.C. 24 § 636(b) and Civil Local Rules 17.1 and 72.1. Having reviewed the Ex Parte 25 Motion, the Supplemental Submission, the supporting declarations, and the 26 pleadings on file, and for the reasons stated below, the undersigned 27 RECOMMENDS that the District Court GRANT Plaintiffs’ Ex Parte Motion. 28 /// 1 I. 2 BACKGROUND 3 On May 14, 2020, after completing his shopping at Defendant’s store on 4 Morena Boulevard in San Diego, Plaintiff Ali Demir (“Demir”) exited the store with 5 his daughter J.D., who was then four years old and was riding in the child seat of 6 the shopping cart. See Dkt. No. 1-2 at 6, 8. The two began to “descend a steep 7 ramp to the parking lot,” at which time the shopping cart “flipped and fell down 8 forcefully to the ground.” Id. J.D.’s left femur was fractured during the incident. 9 Id. On April 22, 2022, Demir and J.D., through her guardian ad litem, sued 10 Defendant, stating causes of action for negligence, premises liability, and products 11 liability. See generally id. 12 On August 1, 2022, Defendant removed the action to this Court. Dkt. No. 1. 13 On September 15, 2022, Defendant answered the Complaint, denying all material 14 allegations and asserting 23 affirmative defenses. See Dkt. No. 4. Defendants’ 15 defenses included allegations of Plaintiffs’ comparative fault, their failure to 16 mitigate their damages, and that the alleged dangerous condition was open and 17 obvious. See generally id. 18 On October 27, 2022, the parties and their counsel participated in an Early 19 Neutral Evaluation before Magistrate Judge Barbara L. Major and reached an 20 agreement to settle the case. See Dkt. No. 7. This Ex Parte Motion followed. 21 II. 22 LEGAL STANDARDS 23 District Courts have a duty to safeguard the interests of minors in litigation. 24 Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983). When parties 25 settle an action involving a minor litigant, the Court must “‘conduct its own inquiry 26 to determine whether the settlement serves the best interests of the minor.’” 27 Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011) (citation omitted); 28 see also CivLR 17.1(a) (providing that “[n]o action by or on behalf of a minor or 1 incompetent will be settled, compromised, voluntarily discontinued, dismissed or 2 terminated without court order or judgment.”). The Court must conduct this inquiry 3 “even if the settlement has been recommended or negotiated by the minor’s parent 4 or guardian ad litem.” Salmeron, 724 F.2d at 1363. 5 Where a federal court exercises diversity jurisdiction over the minor plaintiff’s 6 state-law claims, the settlement should be evaluated with reference to applicable 7 state law. See DeRuyver v. Omni La Costa Resort & Spa, LLC, Case No. 3:17-cv- 8 0516-H-AGS, 2020 WL 563551, at *2 (S.D. Cal. Feb. 4, 2020) (citation omitted). 9 Under California law, a minor’s claims may only be compromised “with the 10 approval of the court in which the action is proceeding or pending.” Cal. Civ. Pro. 11 § 372. Recognizing that the Court “generally assumes . . . a role to assure that 12 whatever is done is in the minor’s best interests,” the Court’s “primary concern” in 13 evaluating the compromise of a minor’s claims “is whether the compromise is 14 sufficient to provide for the minor’s injuries, care and treatment.” Goldberg v. 15 Super. Ct., 23 Cal. App. 4th 1378, 1382 (1994). The Ninth Circuit directs that the 16 court should approve a minor’s compromise if the minor’s net recovery “is fair and 17 reasonable in light of their claims and average recovery in similar cases.” 18 Robidoux, 638 F.3d at 1182. Although Robidoux applies to settlement of federal 19 claims, the Court nevertheless finds its guidance instructive. 20 III. 21 DISCUSSION 22 A. The Settlement Is Reasonable and in J.D.’s Best Interests 23 As stated in the Ex Parte Motion, Plaintiffs have agreed to settle their claims 24 for gross consideration of $5,000, payable in its entirety to J.D. Dkt. No. 11 at 2; 25 Dkt. No. 13 at 2. J.D.’s mother and guardian ad litem, Emine Demir, has agreed 26 to the settlement and its terms on J.D.’s behalf, believing it to be in J.D.’s best 27 interests. Id. at 2; Dkt. No. 13-1 at 2. The parties propose that the money be held 28 /// 1 in a blocked account in J.D.’s name, from which no principal or interest can be 2 withdrawn, until J.D. reaches 18 years of age. Dkt. No. 13 at 3. 3 As alleged in the Complaint and reiterated in the Supplemental Submission, 4 J.D. was injured when a shopping cart pushed by Demir and in which she was 5 riding “flipped and fell down hard,” “trapp[ing]” her between the ground and the cart 6 and breaking her leg. See Dkt. No. 13 at 2. Plaintiffs report that J.D.’s past medical 7 expenses total $2,971.50 and that she “wear[s] special shoes to accommodate the 8 discrepancy in length” between her right and left legs.1 Id. Whether J.D. will 9 require ongoing care or treatment is unknown. Id. Demir, the other plaintiff in the 10 action, has forgone any monetary recovery for his “bystander injuries,” choosing 11 instead to allocate the entire settlement to J.D. Id. at 3. 12 The Court’s research demonstrates that a $5,000 recovery is within the 13 accepted range of settlements for similar claims and injuries in federal and state 14 courts within this Circuit, particularly where, as here, the minor’s past medical 15 expenses are amply covered by the settlement funds and the need for ongoing 16 treatment is not established.2 Indeed, the Court found several cases in which the 17
18 19 1 Before the matter was removed to this District, Plaintiffs represented that J.D.’s medical expenses were approximately $40,000. See Dkt. No. 1-5 at 2. However, during the November 20 21, 2022 hearing on the Ex Parte Motion, plaintiffs’ counsel explained that the $40,000 was a “billed” amount and that plaintiffs had since negotiated with the hospital to pay $2,971.50 in 21 satisfaction of that amount. Plaintiffs’ counsel also represented that none of J.D.’s care providers has asserted a lien against the settlement funds. 22 2 See, e.g., M.W. v. Safeway, Inc., 2019 WL 4511927 (W.D. Wash. Sept. 19, 2019) (approving 23 $12,000 settlement for minor who suffered headaches after being struck in the head by a shopping cart); N.M.S. pro ami Silveira v. Cty. of Los Angeles et al., JVR No. 1501120026 (Cal. 24 Sup. Ct. Mar. 21, 2013) ($11,000 gross settlement for minor who suffered facial laceration on a 25 carnival ride); C.S. pro ami Randall v. Kroger West d/b/a Ralphs Grocery Stores, JVR No. 1502180034 (Cal. Sup. Ct. Feb. 18, 2013) ($9,000 gross settlement for minor whose finger was 26 broken due to faulty bathroom stall door); Pineda vs. Target Corporation, 18 Trials Digest 15th 18 (N.D. Cal. Aug. 25, 2011) ($4,600 settlement for minor who tripped and was injured when he 27 hit his head on an unattended shopping cart); Harvey v. Home Depot, 47 Trials Digest 13th 18 (Cal. Sup. Ct. Aug. 6, 2010) ($4,000 gross settlement for minor who was injured when his father 28 1 injured minor recovered nothing at all for similar injuries, particularly where 2 questions of causation and comparative fault were prominent.3 Accordingly, the 3 Court finds that a $5,000 gross settlement for J.D. is reasonable and adequate to 4 compensate her for the care and treatment of her injuries. 5 The Court also finds that the proposed settlement is in J.D.’s best interests. 6 Although the settlement was reached relatively early in the case, it was negotiated 7 in a court-mediated settlement proceeding in which all parties were represented 8 by counsel, who undoubtedly were well-informed as to the strengths and 9 weaknesses of their respective positions. Further, the settlement obviates the cost 10 and time needed to complete discovery, retain experts, and defend the case 11 against a motion for summary judgment. As demonstrated by the foregoing review 12 of jury verdicts, even if the case proceeded to trial, there is no way of knowing 13 whether the outcome would have been favorable to plaintiffs. These risks are well 14 illustrated in the Garcia case referenced above, which resulted in no recovery for 15 the minor plaintiff after seven years of litigation in the trial and appellate courts. 16 See Garcia v. Rehrig Int’l, Inc., 99 Cal.App.4th 869, 879 (Cal. Ct. App. 2002) 17 (reversing trial court’s order for a new trial and affirming the jury’s verdict for 18
19 20 fell while pushing a shopping cart in which the minor was riding, causing him to fall to the floor); Velazquez v. K-Mart Corp., 10 Id. Verd. Stlmnt. Rpts. 45 (Id. Dist. Ct. Jan. 4, 2010) ($2,455 for 21 minor plaintiff who suffered hand injury when his finger was caught in a step stool left in the aisle at defendant’s store). 22
3 See, e.g., L.D.H. pro ami v. Smith’s Food & Drug Centers, Inc., JVR No. 2108110025 (Nev. 23 Dist. Ct. Mar. 12, 2021) (verdict for defendant grocery store in case involving alleged head injury and trauma to 17-month-old who fell out of grocery cart when it “tipped over”); Wiest v Toys R 24 Us-Delaware, 2011 WL 3420491 (Wash. Sup. Ct. Feb. 2, 2011) (verdict for the defense in 25 personal injury case involving minor who “grabbed the side of [a] shopping cart,” causing it to fall on top of her and thereby injuring her finger and leg); Thorpe pro ami Calzada v. Sav-On 26 Drug Stores Inc. d/b/a American Drug Stores, JVR No. 501827 (Cal. Sup. Ct. Feb. 1, 2005) (defense verdict where minor plaintiff suffered seizures and headaches after falling out of a 27 grocery cart); Garcia pro ami Trezza v. Rehrig Int’l Inc., JVR No. 403254 (Cal. Sup. Ct. Oct. 1, 2000) (verdict for the defendant shopping cart manufacturer where child fell out of the basket 28 1 defendant). In short, the settlement allows J.D. and her parents to avoid the costs, 2 risks, and time commitment of pursuing the case through discovery and trial, while 3 providing fair and prompt compensation for her injuries. See Goldberg, 23 Cal. 4 App. 4th at 1382. 5 For the above reasons, the Court finds that the settlement is fair, adequate 6 to compensate J.D. for her injuries, and in J.D.’s best interests. 7 B. Attorneys’ Fees and Litigation Costs 8 In evaluating the proposed settlement, the Court “is empowered to approve 9 and allow payment of reasonable expenses, costs, and attorney fees.” Curtis v. 10 Fagan, 82 Cal. App. 4th 270, 277 (2000) (citing Cal. Prob. Code. § 3601). Here, 11 the attorneys representing Plaintiffs have waived their fees, see Dkt. No. 13-2 at 12 2, so the Court need not consider whether counsel’s fees are reasonable. As to 13 costs, counsel seeks reimbursement of $699.59 in litigation expenses from the 14 settlement funds. Dkt. No. 13 at 5. Counsel represents that this amount is 15 attributable to process server fees, filing fees, and assorted postage and copying 16 costs. Id. The Court finds the costs incurred by counsel were reasonable and 17 necessary and should be repaid from the settlement funds. 18 IV. 19 CONCLUSION AND RECOMMENDATION 20 For the reasons stated above, the Court finds the proposed settlement is 21 reasonable and in J.D.’s best interests, and further that the proposed handling of 22 the settlement funds on J.D.’s behalf is also reasonable. The Court also finds that 23 Plaintiffs’ counsel’s request for reimbursement of $699.59 for necessary litigation 24 costs is fair and reasonable. 25 /// 26 /// 27 /// 28 /// 1 Accordingly, the Court RECOMMENDS that the District Court GRANT the 2 Ex Parte Motion to Approve Minor’s Compromise [Doc. No. 42] and further order 3 that: 4 1. Plaintiffs shall open an interest-bearing, federally insured blocked 5 account in J.D.’s legal name (the “Blocked Account”); 6 2. Not later than 30 days after the date of the District Court’s Order 7 granting the Ex Parte Motion, Defendant shall issue a check for 8 $5,000.00 (the “Settlement Funds”) payable to the “Gomez Trial 9 Attorneys Trust Account” and shall deliver the Settlement Funds to 10 Plaintiffs’ counsel in person or by certified mail; 11 3. Plaintiffs must voluntarily dismiss the Action within 14 days of 12 receiving the Settlement Funds from Defendant; 13 4. Promptly upon receipt of the Settlement Funds, Plaintiffs’ counsel 14 shall issue a check to Plaintiffs for $4,300.41 to be deposited in the 15 Blocked Account; 16 5. No withdrawal of principal or interest may be made from the Blocked 17 Account without a written order of this Court or another Court of 18 competent jurisdiction, until J.D. reaches 18 years of age (i.e., on 19 June 16, 2033); and 20 6. Once J.D. reaches 18 years of age, without further order from this 21 Court or any other Court of competent jurisdiction, the depository 22 shall pay by check or draft to J.D. all funds, including interest, in the 23 Blocked Account. 24 This Report and Recommendation is respectfully submitted to the Honorable 25 Ruth Bermudez Montenegro, United States District Judge, pursuant to 28 U.S.C. 26 § 636(b) and Civil Local Rules 17.1 and 72.1. 27 /// 28 /// 1 IT IS HEREBY ORDERED that any objection to this Report and 2 ||Recommendation must be filed with the Court and served on all parties by 3 || December 2, 2022. Failure to timely object may result in a waiver of the right to 4 raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 5 449, 455 (9th Cir. 1998). 6 || Dated: November 21, 2022 _ 7 Tb lhe 8 Hon. David D. Leshner 9 United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28