1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 G.C., By and Through his Guardian Ad Case No.: 21-cv-00019-L-BGS Litem Linda Clark 11 REPORT & RECOMMENDATION Plaintiff, 12 FOR ORDER GRANTING v. INCOMPETENT COMPROMISE 13 PETITION SAN DIEGO UNIFIED SCHOOL 14 DISTRICT, 15 Defendant. 16
17 Before the Court is a Motion for Approval of an Incompetent Person’s Compromise 18 filed by Plaintiff Linda Clark, as guardian ad litem for Plaintiff G.C., an incompetent 19 individual. (ECF No. 14.) Having considered Plaintiff Clark’s unopposed motion, and for 20 the reasons set forth below, the Court GRANTS the motion. 21 I. BACKGROUND 22 This case arises under the Individuals with Disabilities and Education Act (“IDEA”), 23 which “ensure[s] that all children with disabilities have available to them a free and 24 appropriate public education [(“FAPE”)] that emphasizes special education and related 25 services[.]” (ECF No. 14 at 3.) 26 On December 8, 2020, Plaintiff filed a complaint with the Office of Administrative 27 Hearings (“OAH”) seeking to implement G.C.’s Individualized Education Plan (“IEP”) for 28 1 the duration of distance learning and compensatory education due to the Defendant’s 2 failure to provide Plaintiff with FAPE during the 2019–20 and 2020–21 school years. (Id.) 3 On December 18, 2020, Plaintiff filed a Motion for Stay Put with the OAH seeking to keep 4 G.C.’s Health Nursing Services from a one-to-one Licensed Vocational Nurse (“LVN”) 5 for eight hours per school day for the duration of the parties’ dispute, which was denied on 6 December 24, 2020. (Id.) However, after transportation hours had been removed due to 7 distance learning, the number of nursing hours Plaintiff sought was 6–6.5 hours per school 8 day, which would cost approximately $60,000.00–$69,615.00 in total. (Id. at 5.) On 9 December 24, 2020, the OAH denied Plaintiff’s Motion for Stay Put. (Id. at 3.) 10 On January 6, 2021, Plaintiff filed a Complaint for Reversal of the OAH’s decision 11 and a Petition for Guardian Ad Litem with this Court. (ECF Nos. 1, 2.) Before Plaintiff 12 could serve Defendant or file a Motion for Preliminary Injunction seeking Stay Put, the 13 parties entered into a settlement agreement on February 10, 2021. (ECF No. 14 at 3.) 14 Plaintiff then filed a Motion to Dismiss on February 16, 2021. (Id.) On February 18, 2021, 15 the Court denied Plaintiff’s Petition for Guardian Ad Litem without prejudice and 16 requested additional evidence of Plaintiff’s legal incapacity. (ECF No. 7.) On March 15, 17 2021, the Court denied Plaintiff’s motion to dismiss since the court had not yet granted 18 Plaintiff’s Petition for Guardian Ad Litem. (ECF No. 8.) 19 On March 30, 2021, Plaintiff filed an Amended Petition for Guardian Ad Litem, 20 which was granted on April 2, 2021. (ECF Nos. 9, 10.) On April 21, 2021, Plaintiff filed 21 an Amended Motion to Dismiss. (ECF No. 12.) On June 16, 2021, after considering 22 Plaintiff’s Amended Motion to Dismiss and the attached Settlement Agreement, the Court 23 found that it was unable to approve the settlement without further information. (ECF No. 24 13.) The Court then ordered the parties to file a joint motion for approval of the 25 compromise of an incompetent person’s claim that shows the settlement was fair and 26 reasonable in light of the facts of the case, and in light of recoveries in similar cases. (Id. 27 at 2.) On June 29, 2021, Plaintiff filed a Motion for Approval of Incompetent Person’s 28 Compromise, which is currently before the Court. (ECF No. 14.) 1 II. LEGAL STANDARD 2 District courts have a special duty to protect the interests of litigants who are minors 3 or incompetent. See Fed. R. Civ. P. 17(c) (requiring that a district court “appoint a guardian 4 ad litem—or issue another appropriate order—to protect a minor or incompetent person 5 who is unrepresented in an action”). In keeping with this duty, this District’s Civil Local 6 Rules provide that “[n]o action by or on behalf of a minor or incompetent will be settled, 7 compromised, voluntarily discontinued, dismissed or terminated without court order or 8 judgment.” Civ. L.R. 17.1(a). 9 In the context of proposed settlements in cases with minor plaintiffs, the Ninth 10 Circuit has instructed district courts to “conduct [their] own inquiry to determine whether 11 the settlement serves the best interests of the minor.” Robidoux v. Rosengren, 638 F.3d 12 1177, 1181 (9th Cir. 2011) (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 13 1978)); see also Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983) (“[A] court 14 must independently investigate and evaluate any compromise or settlement of a minor's 15 claims to assure itself that the minor's interests are protected.”). Under Robidoux, a district 16 court’s settlement review is limited to whether the net amount distributed to the minor is 17 fair and reasonable, considering the facts of the case, the minor’s specific claim, and 18 recovery in similar cases. 638 F.3d at 1181–82. Robidoux instructs that courts should not 19 evaluate the fairness of the recovery by comparing the minor’s proportion of the total 20 settlement to the amounts designated for co-plaintiffs or counsel. Id. at 1182. The parties’ 21 proposed settlement should be approved “[s]o long as the net recovery to each minor 22 plaintiff is fair and reasonable in light of their claims and average recovery in similar 23 cases.” Id. District courts have extended the Robidoux inquiry to cases involving the 24 approval of an incompetent plaintiff’s settlement. E.g., Banuelos v. City of San 25 Bernardino, Case No. EDCV 13-736-GW-DTB, 2018 WL 6131190 (C.D. Cal. Apr. 2018); 26 Mugglebee v. Allstate Ins. Co., Case No.: 14-CV-2474-JLS-JMA, 2018 WL 1410718 (S.D. 27 Cal. Mar. 2018); Smith v. City of Stockton, 185 F. Supp. 3d 1242 (E.D. Cal. 2016). 28 /// 1 III. DISCUSSION 2 A. Proposed Settlement 3 Based on a review of the petitions and applicable law, the Court finds that the terms 4 of the settlement are fair and reasonable as to the incompetent Plaintiff. Plaintiff is seeking 5 implementation of G.C.’s IEP and compensatory education due to the Defendant’s failure 6 to implement G.C.’s IEP during distance learning over the 2019–20 and 2020–21 school 7 years, which denied G.C. of FAPE. (ECF No. 14 at 5.) Under the terms of the settlement, 8 the Defendant would provide Plaintiff with a total of $108,500.00 to encompass any future 9 FAPE obligations through June 30, 2021, which is when G.C. would age out of eligibility 10 for special education and related services. (Id. at 6.) After attorney fees and costs, Plaintiff 11 will receive $89,000.00 in exchange for dismissing her claims against Defendant with 12 prejudice. (See ECF Nos. 12-2, 14 at 6.) This $89,000.00 will reimburse Plaintiff for 13 compensatory education services, in areas such as academics, speech-language, 14 occupational therapy (“OT”), physical therapy (“PT”), behavior and nursing. (ECF No. 14 15 at 6.) The settlement indicated that Plaintiff may use up to $63,000.00 of the amount 16 received for compensatory education, which accounts for six hours per day of nursing 17 services, which is the amount of time sought for nursing services by Plaintiff for the 2019– 18 20 and 2020–21 school years. (Id.) This is well within the total estimated cost for 6–6.5 19 nursing hours per day for G.C. for the time period at issue. (ECF No. 14 at 5.) In addition, 20 Plaintiff’s attorney indicated that she will waive all other outstanding fees and costs.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 G.C., By and Through his Guardian Ad Case No.: 21-cv-00019-L-BGS Litem Linda Clark 11 REPORT & RECOMMENDATION Plaintiff, 12 FOR ORDER GRANTING v. INCOMPETENT COMPROMISE 13 PETITION SAN DIEGO UNIFIED SCHOOL 14 DISTRICT, 15 Defendant. 16
17 Before the Court is a Motion for Approval of an Incompetent Person’s Compromise 18 filed by Plaintiff Linda Clark, as guardian ad litem for Plaintiff G.C., an incompetent 19 individual. (ECF No. 14.) Having considered Plaintiff Clark’s unopposed motion, and for 20 the reasons set forth below, the Court GRANTS the motion. 21 I. BACKGROUND 22 This case arises under the Individuals with Disabilities and Education Act (“IDEA”), 23 which “ensure[s] that all children with disabilities have available to them a free and 24 appropriate public education [(“FAPE”)] that emphasizes special education and related 25 services[.]” (ECF No. 14 at 3.) 26 On December 8, 2020, Plaintiff filed a complaint with the Office of Administrative 27 Hearings (“OAH”) seeking to implement G.C.’s Individualized Education Plan (“IEP”) for 28 1 the duration of distance learning and compensatory education due to the Defendant’s 2 failure to provide Plaintiff with FAPE during the 2019–20 and 2020–21 school years. (Id.) 3 On December 18, 2020, Plaintiff filed a Motion for Stay Put with the OAH seeking to keep 4 G.C.’s Health Nursing Services from a one-to-one Licensed Vocational Nurse (“LVN”) 5 for eight hours per school day for the duration of the parties’ dispute, which was denied on 6 December 24, 2020. (Id.) However, after transportation hours had been removed due to 7 distance learning, the number of nursing hours Plaintiff sought was 6–6.5 hours per school 8 day, which would cost approximately $60,000.00–$69,615.00 in total. (Id. at 5.) On 9 December 24, 2020, the OAH denied Plaintiff’s Motion for Stay Put. (Id. at 3.) 10 On January 6, 2021, Plaintiff filed a Complaint for Reversal of the OAH’s decision 11 and a Petition for Guardian Ad Litem with this Court. (ECF Nos. 1, 2.) Before Plaintiff 12 could serve Defendant or file a Motion for Preliminary Injunction seeking Stay Put, the 13 parties entered into a settlement agreement on February 10, 2021. (ECF No. 14 at 3.) 14 Plaintiff then filed a Motion to Dismiss on February 16, 2021. (Id.) On February 18, 2021, 15 the Court denied Plaintiff’s Petition for Guardian Ad Litem without prejudice and 16 requested additional evidence of Plaintiff’s legal incapacity. (ECF No. 7.) On March 15, 17 2021, the Court denied Plaintiff’s motion to dismiss since the court had not yet granted 18 Plaintiff’s Petition for Guardian Ad Litem. (ECF No. 8.) 19 On March 30, 2021, Plaintiff filed an Amended Petition for Guardian Ad Litem, 20 which was granted on April 2, 2021. (ECF Nos. 9, 10.) On April 21, 2021, Plaintiff filed 21 an Amended Motion to Dismiss. (ECF No. 12.) On June 16, 2021, after considering 22 Plaintiff’s Amended Motion to Dismiss and the attached Settlement Agreement, the Court 23 found that it was unable to approve the settlement without further information. (ECF No. 24 13.) The Court then ordered the parties to file a joint motion for approval of the 25 compromise of an incompetent person’s claim that shows the settlement was fair and 26 reasonable in light of the facts of the case, and in light of recoveries in similar cases. (Id. 27 at 2.) On June 29, 2021, Plaintiff filed a Motion for Approval of Incompetent Person’s 28 Compromise, which is currently before the Court. (ECF No. 14.) 1 II. LEGAL STANDARD 2 District courts have a special duty to protect the interests of litigants who are minors 3 or incompetent. See Fed. R. Civ. P. 17(c) (requiring that a district court “appoint a guardian 4 ad litem—or issue another appropriate order—to protect a minor or incompetent person 5 who is unrepresented in an action”). In keeping with this duty, this District’s Civil Local 6 Rules provide that “[n]o action by or on behalf of a minor or incompetent will be settled, 7 compromised, voluntarily discontinued, dismissed or terminated without court order or 8 judgment.” Civ. L.R. 17.1(a). 9 In the context of proposed settlements in cases with minor plaintiffs, the Ninth 10 Circuit has instructed district courts to “conduct [their] own inquiry to determine whether 11 the settlement serves the best interests of the minor.” Robidoux v. Rosengren, 638 F.3d 12 1177, 1181 (9th Cir. 2011) (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir. 13 1978)); see also Salmeron v. United States, 724 F.2d 1357, 1363 (9th Cir. 1983) (“[A] court 14 must independently investigate and evaluate any compromise or settlement of a minor's 15 claims to assure itself that the minor's interests are protected.”). Under Robidoux, a district 16 court’s settlement review is limited to whether the net amount distributed to the minor is 17 fair and reasonable, considering the facts of the case, the minor’s specific claim, and 18 recovery in similar cases. 638 F.3d at 1181–82. Robidoux instructs that courts should not 19 evaluate the fairness of the recovery by comparing the minor’s proportion of the total 20 settlement to the amounts designated for co-plaintiffs or counsel. Id. at 1182. The parties’ 21 proposed settlement should be approved “[s]o long as the net recovery to each minor 22 plaintiff is fair and reasonable in light of their claims and average recovery in similar 23 cases.” Id. District courts have extended the Robidoux inquiry to cases involving the 24 approval of an incompetent plaintiff’s settlement. E.g., Banuelos v. City of San 25 Bernardino, Case No. EDCV 13-736-GW-DTB, 2018 WL 6131190 (C.D. Cal. Apr. 2018); 26 Mugglebee v. Allstate Ins. Co., Case No.: 14-CV-2474-JLS-JMA, 2018 WL 1410718 (S.D. 27 Cal. Mar. 2018); Smith v. City of Stockton, 185 F. Supp. 3d 1242 (E.D. Cal. 2016). 28 /// 1 III. DISCUSSION 2 A. Proposed Settlement 3 Based on a review of the petitions and applicable law, the Court finds that the terms 4 of the settlement are fair and reasonable as to the incompetent Plaintiff. Plaintiff is seeking 5 implementation of G.C.’s IEP and compensatory education due to the Defendant’s failure 6 to implement G.C.’s IEP during distance learning over the 2019–20 and 2020–21 school 7 years, which denied G.C. of FAPE. (ECF No. 14 at 5.) Under the terms of the settlement, 8 the Defendant would provide Plaintiff with a total of $108,500.00 to encompass any future 9 FAPE obligations through June 30, 2021, which is when G.C. would age out of eligibility 10 for special education and related services. (Id. at 6.) After attorney fees and costs, Plaintiff 11 will receive $89,000.00 in exchange for dismissing her claims against Defendant with 12 prejudice. (See ECF Nos. 12-2, 14 at 6.) This $89,000.00 will reimburse Plaintiff for 13 compensatory education services, in areas such as academics, speech-language, 14 occupational therapy (“OT”), physical therapy (“PT”), behavior and nursing. (ECF No. 14 15 at 6.) The settlement indicated that Plaintiff may use up to $63,000.00 of the amount 16 received for compensatory education, which accounts for six hours per day of nursing 17 services, which is the amount of time sought for nursing services by Plaintiff for the 2019– 18 20 and 2020–21 school years. (Id.) This is well within the total estimated cost for 6–6.5 19 nursing hours per day for G.C. for the time period at issue. (ECF No. 14 at 5.) In addition, 20 Plaintiff’s attorney indicated that she will waive all other outstanding fees and costs. (Id.) 21 Defendant has not filed any objections to this Petition. In fact, despite not being 22 served with the complaint/summons or not making an appearance in this matter, Defendant 23 San Diego Unified School District informed Plaintiff that “it does not object to dismissal 24 of the case as required by the settlement agreement, or for approval of incompetent person’s 25 compromise, if in fact legally required for dismissal in this circumstance.” (Id. at 4.) 26 After considering the facts of this case and the incompetent Plaintiff’s specific 27 claims, the Court finds that the settlement is fair, reasonable and in the best interests of the 28 incompetent Plaintiff. The Motion to Confirm Incompetent’s Compromise is GRANTED. 1 B. Attorney’s Fees and Costs 2 Attorney’s fees to be paid for representing a minor Plaintiff must also be approved 3 by the Court. See Cal. Prob. Code § 3601; Cal. Fam. Code § 6602. “To determine whether 4 a request for attorney’s fees is reasonable, the court may consider, among other factors, the 5 time and labor required, whether the minor’s representative consented to the fee, the 6 amount of money involved and the results obtained, and whether the fee is fixed, hourly, 7 or contingent.” Favreau v. City of Escondido, No. 10-CV-2348-GPC-WVG, 2013 WL 8 1701878, at *2 (S.D. Cal. Apr. 2013); see also Cal. Rule of Ct. 7.955(b). 9 IDEA provides that “[i]n any action or proceeding brought under this subsection, the 10 court, in its discretion, may award reasonable attorneys’ fees as part of the costs to the 11 parents or guardian of a child or youth with a disability who is a prevailing party.” Parents 12 of Student W. v. Puyallup Sch. Dist., No. 3, 31 F.3d 1489, 1498 (9th Cir. 1994); see also 13 20 U.S.C. § 1415(i)(3)(B); Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 14 1025, 1034 (9th Cir. 2006). A prevailing party for the purpose of awarding attorney’s fees 15 is a party which “succeed[s] on any significant issue in litigation which achieves some of 16 the benefit the parties sought in bringing the suit.” Hensley v. Eckerhart, 461 U.S. 424, 433 17 (1983). Such success results in a “material alteration of the legal relationship of the parties 18 in a manner which Congress sought to promote in the fee statute.” Texas State Teachers 19 Ass’n v. Garland Independent School District, 489 U.S. 782, 792–93 (1989). “Where the 20 plaintiff’s success on a legal claim can be characterized as purely technical or de minimis,” 21 the plaintiff cannot claim fees as a prevailing party. Id. at 792. 22 Here, Plaintiff’s counsel, the Law Office of Meagan M. Nunez, seeks $19,500.00 in 23 attorney’s fees. (ECF No. 14 at 6–7.) This represents approximately 18 percent of 24 $108,500.00, which is the total amount of the settlement in this case. (See ECF No. 14 at 25 6–7.) Plaintiff’s counsel indicated that she has a written retainer agreement with Plaintiff 26 which includes the payment of attorney’s fees. (Id. at 7.) Plaintiff’s counsel stated that 27 although she has “provided substantially more legal services than the settlement agreement 28 provides payment for, the attorney for the Plaintiff and the Plaintiff agree to waive any 1 attorney’s fees and costs in excess of the amount received pursuant to the proposed 2 settlement agreement.”1 (Id.) Plaintiff’s counsel indicated that these fees are consistent 3 with Ninth Circuit standards for reimbursement of fees and costs to a prevailing parent. 4 (Id.) 5 Counsel has provided a declaration from Attorney Meagan Nunez in support of their 6 request. (ECF No. 14-1.) Plaintiff’s counsel declared that “this settlement provides Parent 7 with extraordinary results. It almost entirely reimburses Parent for 6 hours per day of G.C.’s 8 anticipated immediate nursing costs, with approximately $20,000 remaining for G.C’s 9 academic, speech-language, occupational therapy (‘OT’), physical therapy (‘PT’), and 10 behavior needs, as well as prevents further litigation.” (Id. at 4.) Further, guardian ad 11 litem, Linda Clark, had reviewed the entire settlement agreement and accepted all of the 12 provisions which included the amount of $19,500.00 in attorney’s fees and litigation costs. 13 (ECF No. 12-2.) 14 Plaintiff’s counsel has been involved with substantive filings in this matter, with 15 filing multiple motions before the OAH and the multiple filings in this case along with 16 settlement discussions. (See Docket; ECF No. 14 at 3–4; see also ECF Nos. 1, 2, 6, 9, 12, 17 14.) This resulted in Plaintiff achieving the benefit that was sought when first bringing the 18 suit, compensation for G.C.’s education and nursing services due to the Defendant’s failure 19 to provide Plaintiff with FAPE during the 2019–20 and 2020–21 school years. The Ninth 20 Circuit has emphasized that the incompetent’s settlement should be approved “[i]f the net 21 recovery of each minor plaintiff under the proposed settlement is fair and reasonable, [. . .] 22 regardless of the amount the parties agree to designate for [. . .] attorney’s fees.” See 23 Robidoux, 638 F.3d at 1182. As explained above, the incompetent Plaintiff’s recovery is 24 more than adequate. Therefore, after considering the duration of this case and the amount 25 26 27 1 Although attorney fees in this case approximately totals $33,885.00, Plaintiff’s counsel declared that she agreed to only accept $19,500.00 and waive all other outstanding fees and costs. (ECF No. 14-1 at 28 1 || of work performed by Plaintiff's counsel, the Court finds that the amount of attorney’s fees 2 ||is fair and reasonable under the circumstances, and that the amount of attorney’s fees do 3 suggest that the settlement was unfair. 4 CONCLUSION 5 After reviewing the Petition for Approval of Incompetent’s Compromise of Claims 6 ||(ECF No. 14), the Court finds that the proposed settlement of incompetent Plaintiffs’ 7 ||claims in the amount of $108,500.00 to be fair and reasonable. The Court approves the 8 || following distribution of settlement funds: 9 1. The amount of $89,000.00 (the balance of the settlement proceed) shall be 10 paid to Plaintiff Linda Clark, as guardian ad litem for Plaintiff G.C., an 11 incompetent individual; 12 2. The amount of $19,500.00 shall be paid to Plaintiff's counsel, Meagan M. 13 Nunez, as attorney’s fees. 14 Accordingly, for the reasons discussed above, IT IS HEREBY RECOMMENDED 15 || that the District Court issue an Order: (1) adopting this Report and Recommendation; and 16 ||(2) GRANTING the Petition (ECF No. 14). 17 IT IS ORDERED that no later than August 31, 2021, any party to this action may 18 || file written objections with the Court and serve a copy on all parties. The document should 19 captioned “Objections to Report and Recommendation.” The parties are advised a 20 failure to file objections within the specified time may waive the right to raise those 21 || objections on appeal of the Court’s Order. See Martinez v. Yist, 951 F.2d 1153, 1156 (9th 22 1991). 23 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 24 Court and served on all parties no later than September 14, 2021. 25 IT IS SO ORDERED. 26 Dated: August 17, 2021 7 2 p / / 27 on. Bernard G. Skomal 28 United States Magistrate Judge