Valle Hernandez v. United States

Opinion

1 2 3 6 7 JOSE JAVIER VALLE HERNANDEZ, et al., Case No. 1:23-cv-00835-SKO 8 Plaintiffs, ORDER DENYING PETITION FOR 9 v. APPROVAL OF MINORS’ COMPROMISE WITHOUT PREJUDICE 11 Defendant. (Doc. 27)

12 13 Presently before the Court is Plaintiff Jose Javier Valle Hernandez’s renewed unopposed 14 petition for approval of a settlement involving minors, E.S.V.A. and E.P.V.A. (or “Minor 15 Plaintiffs”). (Doc. 27). After reviewing the renewed petition, the Court finds the petition does 16 not adequately address the deficiencies in the prior order and therefore the petition will be again 17 denied. 18 The Court will consider a further renewed motion that makes a sufficient showing of fairness 19 and reasonableness and that addresses the deficiency with respect to the attorney’s costs sought. 21 Plaintiff, Jose Javier Valle Hernandez, as Guardian ad litem for minor plaintiffs, (see Doc. 22 25), instituted this action to recover damages for personal injuries and damages he and minor 23 plaintiffs sustained in a motor vehicle collision occurring on March 3, 2021, in Visalia, California. 24 (Doc. 1, see also Doc. 28 at 2). Plaintiffs contend Defendant’s employee Derek Chase Clower— 25 a postal worker operating a United States Postal Service vehicle—struck a vehicle driven by 26 Plaintiff Valle Hernandez, also occupied by his children, minor plaintiffs. (See Docs. 1 ¶¶ 10, 12, 27 13; 28 at 2). 28 The California Highway Patrol investigation of the accident determined Defendant’s 1 employee made an “unsafe U-turn” causing Plaintiff Valle Hernandez’s vehicle to collide with 2 the passenger side of Defendant’s vehicle. (Doc. 29-3). Defendants disputed liability and 3 causation. (Doc. 29-1 at 2). 4 A. Plaintiff Valle Hernandez’s Injuries & Treatment 5 Plaintiff Valle Hernandez reportedly suffered an abrasion to his left arm and a contusion to 6 his right lower extremity and was treated at the emergency department of Kaweah Delta Medical 7 Center on the day of the incident. (Doc. 28 at 7). He was instructed to follow up with his primary 8 care physician. (Id.). In the immediate months following the car collision, he underwent physical 9 therapy, chiropractic care, and psychotherapy. (Id.). He attended ten sessions of physical therapy 10 from March 11, 2021, to October 4, 2021, and he also attended twelve sessions of chiropractic 11 treatment from May 26, 2021, through September 7, 2021. (Id. at 7–8). He also attended six 12 sessions of psychotherapy treatment from March 19, 2021, to December 30, 2021. (Id. at 8). 13 Plaintiff Valle Hernandez obtained MRIs of his left shoulder and lumbar spine. (Id.). On 14 November 15, 2021, he received bilateral lumbar medial branch block injections at L3-L4 and L4- 15 L5. (Id.). On October 27, 2022, he received bilateral medial branch block injections at L4-L5 16 and L5-S1. (Id.). Plaintiff Valle Hernandez was last treated on February 13, 2023 for injuries 17 sustained in this collision. 18 B. Minor Plaintiff E.P.V.A’s Injuries & Treatment 19 Plaintiff E.P.V.A. was a passenger in Plaintiff Valle Hernandez’s vehicle at the time of the 20 incident. (Id. at 8). She was also evaluated at the emergency department of Kaweah Delta Medical 21 Center on the day of the incident. (Id.). During the examination, she reported complaints of pain 22 in their mid-sternal chest and epigastric area. (Id.). Chadi I. Kahwaji, M.D. discharged E.P.V.A. 23 with instructions to follow up as scheduled for further evaluation and treatment. (Id.). In the 24 immediate months following the car collision, E.P.V.A. underwent chiropractic care and 25 psychotherapy. (Id. at 9). E.P.V.A. attended thirteen sessions of chiropractic treatment from 26 March 29, 2021, to September 7, 2021. (Id.). E.P.V.A. attended eight sessions of psychotherapy 27 treatment from March 17, 2021, to December 30, 2021. (Id.). E.P.V.A. also obtained MRIs of 28 her cervical spine, thoracic spine, and lumbar spine. (Id.). E.P.V.A. last visited a medical provider 1 for injuries related to the subject collision on January 11, 2023. As of February 12, 2025, E.P.V.A. 2 had recovered entirely from her injuries. (Id.). 3 C. Minor Plaintiff E.S.V.A’s Injuries & Treatment 4 Plaintiff E.S.V.A. was also a passenger in Plaintiff Valle Hernandez’s vehicle at the time of 5 the incident. (Id. at 9). She was also evaluated at the emergency department of Kaweah Delta 6 Medical Center on the day of the incident. (Id.). During that examination, she reported pain in 7 her right index finger and demonstrated an abrasion on her lateral left arm. (Id.). The X-rays of 8 her left elbow revealed elevation of the anterior as well as the posterior olecranon fat pad 9 suggesting joint effusion. (Id.). The X-rays of the right hand revealed scattered nonspecific soft 10 tissue thickening. (Id.). Chadi I. Kahwaji, M.D. discharged her with instructions to follow up as 11 scheduled for further evaluation and treatment. (Id.). In the immediate months following the car 12 collision, E.S.V.A. underwent psychotherapy. (Id.). E.S.V.A. attended ten sessions of 13 psychotherapy treatment from March 17, 2021, to February 2, 2022. (Id.). E.S.V.A. also obtained 14 x-rays of her bilateral hands and left elbow. (Id.). E.S.V.A. last visited a medical provider for 15 injuries related to the subject collision on January 13, 2023. (Id. at 9–10). As of February 12, 16 2025, E.S.V.A. had recovered entirely from her injuries. (Id. at 10). 17 * * * 18 On January 11, 2023, both minor plaintiffs underwent a pediatric neurological consultation, 19 including EEGs, performed by Dr. Ronald S. Gabriel. (Doc. 29 at 4). Dr. Gabriel then drafted a 20 neurological report based on his exam of each minor plaintiff. (Doc. 29-5). 21 On May 31, 2023, Plaintiff Valle Hernandez filed a complaint seeking personal injury and 22 damages on behalf of himself and his minor children, the minor plaintiffs. (Doc. 1). Plaintiffs’ 23 complaint was brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. sections 24 1346(b), 2671 et seq. against the United States of America. (See id.). 25 Plaintiffs have now reached an agreement to settle with Defendant and seek this Court’s 26 approval of the proposed settlement of the minors’ claims. (Doc. 28). 27 28 2 a. Settlement Approval Standards 3 The Local Rules for this district provide that “[n]o claim by or against a minor or 4 incompetent person may be settled or compromised absent an order by the Court approving the 5 settlement or compromise.” L.R. 202(b). The purpose of requiring the Court’s approval is to 6 provide an additional level of oversight is to ensure that the child's interests are protected. Toward 7 this end, the motion for approval of a proposed settlement shall be filed pursuant to Local Rule 8 230, and must disclose, among other things, the following:

9 the age and sex of the minor or incompetent, the nature of the causes of action to be 10 settled or compromised, the facts and circumstances out of which the causes of action arose, including the time, place and persons involved, the manner in which the 11 compromise amount or other consideration was determined, including such additional information as may be required to enable the Court to determine the 12 fairness of the settlement or compromise, and, if a personal injury claim, the nature and extent of the injury with sufficient particularity to inform the Court whether the 13 injury is temporary or permanent. 14 L.R. 202(b)(2).

15 When the minor or incompetent is represented by an attorney, it shall be disclosed to 16 the Court by whom and the terms under which the attorney was employed; whether the attorney became involved in the application at the instance of the party against 17 whom the causes of action are asserted, directly or indirectly; whether the attorney stands in any relationship to that party; and whether the attorney has received or 18 expects to receive any compensation, from whom, and the amount.” 19 L.R. 202(c). 20 Federal Rule of Civil Procedure 17(c) similarly imposes on district courts a special duty to 21 safeguard the interests of litigants who are minors. Robidoux v. Rosengren, 638 F.3d 1177, 1181 22 (9th Cir. 2011). In the context of proposed settlements in suits involving minor plaintiffs, the 23 district court’s special duty requires it to “conduct its own inquiry to determine whether the 24 settlement serves the best interests of the minor.” Id. (quoting Dacanay v. Mendoza, 573 F.2d 25 1075, 1080 (9th Cir. 1978)). However, in Robidoux, the Ninth Circuit cautioned that this inquiry 26 “requires only that the district court consider whether the net recovery of each minor plaintiff is 27 fair and reasonable, without regard to the amount received by adult co-plaintiffs and what they 28 have agreed to pay plaintiffs’ counsel” and “in light of the facts of the case, the minor’s specific 1 claim, and recovery in similar cases.” Id. at 1181–82 (holding that district court erred in denying 2 settlement based solely on the proportion of the settlement going to plaintiffs’ counsel). 3 b. Attorney’s Fees & Costs 4 In addition to approval of the settlement itself, any attorney’s fees to be paid for 5 representation of a minor, reasonable expenses, and court costs must be approved by the court. 6 Cal. Prob. Code § 3601; see also Rivett v. United States, No. 2:21-CV-00717-DAD-AC, 2023 WL 7 4238909, at *2 (E.D. Cal. June 28, 2023). To determine whether a request for attorney’s fee is 8 reasonable, the Court may consider, among other factors: the time and labor required; whether the 9 minor’s representative consented to the fee; the amount of money involved, and the results 10 obtained; and whether the fee is fixed, hourly, or contingent. See California Rule of Court 11 7.955(b). When a fee is contingent, the court should also consider the risk of loss, the amount of 12 costs advanced by the attorney, and the delay in reimbursement of costs and payment of fees to 13 determine if the amount is reasonable. See California Rule of Court 7.955(b)(13). In FTCA 14 matters, there is a statutory cap on contingency fees at 25% of the total award. 28 U.S.C. § 2678. 16 a. Parties to the Settlement 17 The parties to this settlement are as follows: 18 1. Plaintiff and Petitioner Jose Javier Valle Hernandez is the father of minor 19 plaintiffs E.P.V.A. and E.S.V.A. 20 2. Plaintiff E.P.V.A. 15-year-old girl, born November 1, 2009, by and through her 21 father and Guardian ad litem, Jose Javier Valle Hernandez. 22 3. E.S.V.A. 10-year-old girl, born June 3, 2014, by and through her father and 23 Guardian ad litem, Jose Javier Valle Hernandez. 24 4. The Defendant United States of America. 25 5. Plaintiffs have been represented in this matter by attorneys Christopher B. 26 Adamson and Nia Gamble. 27 b. Proposed Settlement Terms 28 Plaintiff Valle Hernandez and the Defendants have agreed to settle the claims of all three 1 Plaintiffs, including Plaintiff Jose Javier Valle Hernandez and the minor plaintiffs, for $35,000.00. 2 From the balance, the settlement proceeds will be allocated as follows: 3 1. From the $35,000 settlement, Plaintiff Jose Javier Valle Hernandez would 4 receive $22,050 as compensation for his personal injury claim.1 Adamson 5 Ahdoot LLP would waive all attorneys’ fees and litigation costs. Plaintiff Valle 6 Hernandez would be required to pay his final medical liens in this matter which 7 before any reductions by medical providers currently total $84,835.02. There are 8 no statutory liens requiring payment on this matter, however other outstanding 9 liens are currently still pending final negotiations. Nonetheless, after payment, 10 Jose Javier Valle Hernandez is to receive no less than $10,000. 11 2. The minor plaintiffs would each be allocated $6,475.00 as compensation for their 12 personal injuries. 13 a. E.S.V.A. would be responsible for $838.75 in attorney’s fees. 14 E.S.V.A. would also be responsible for reimbursement of Plaintiff’s 15 litigation costs in the amount of $2,000. E.S.V.A.’s final MediCal 16 lien, via the Department of Healthcare Services, is $209.98. 17 E.S.V.A.’s total for the medical bills, before reductions, was 18 $24,983.19. After reductions, the outstanding medical lien amount is 19 $1,219.25, inclusive of the final MediCal lien. Therefore, after the 20 payment of attorney’s fees, litigation costs, and the final medical 21 liens, E.S.V.A. would receive $2,417.00.2 22 b. E.P.V.A. would not be responsible for attorney’s fees. E.P.V.A. 23 would only be responsible for reimbursement of Plaintiff’s litigation 24 costs in the amount of $2,000.00. E.P.V.A.’s final MediCal lien, via 25 the Department of Healthcare Services, is $546.69. E.P.V.A.’s total 26 for the medical bills, before reductions, was $31,746.26. After 27 1 Petitioner has already received, separately, $6,437.91, from Kemper, for property damage reimbursement. 28 2 This figure represents the settlement amount ($6,475.00) minus $838.75 in attorney’s fees, $2,000.00 in litigation 1 reductions, the outstanding medical lien amount is $3,118.42, 2 inclusive of the final MediCal lien. Therefore, after the payment of 3 litigation costs and the final medical liens, E.P.V.A. would receive 4 $1,356.58. 3 6 The petition filed with the Court provides an overview of the terms of the settlement and 7 sets forth most of the information necessary to consider approval of the settlement pursuant to 8 both the Federal Rules of Civil Procedure and the Eastern District of California’s Local Rules. It 9 does not, however, address fully or adequately the specific issues that the Ninth Circuit directed 10 federal district courts to examine when determining whether to approve a settlement involving a 11 minor’s claims. 12 As noted above, the Court must consider the outcome of similar cases to determine whether 13 the sum to settle the minors’ claims is reasonable. See Robidoux, 638 F.3d at 1181; Salmeron v. 14 United Stated, 724 F.2d 1357, 1363 (9th Cir. 1983) (“a court must independently investigate and 15 evaluate any compromise or settlement of minor’s claims to assure itself that the minor’s interests 16 are protected” even if the settlement is recommended by the minor’s parent or guardian ad litem). 17 Here, the petition fails to identify sufficiently similar actions to support approval of the minors’ 18 compromise. (See generally Doc. 23-1). 19 The petition points the Court4 to a case in which the minor plaintiffs sought treatment from 20 their primary care physician on one occasion almost a week after an allegedly tortious car accident. 21 (Doc. 28 at 5–6 (citing Martinez v. Venegas, No. 23-CV-0130-CAB-BGS, 2023 WL 5811837, at 22 *3 (S.D. Cal. Sept. 7, 2023). One of the two minor plaintiffs also underwent x-ray imaging, which 23 ruled out any injuries. Martinez, 2023 WL 5811837, at *3. Upon review, the Court finds Martinez 24 insufficiently analogous to the case at bar to justify the finding that the proposed settlement is 25 reasonable. Unlike Martinez, this case involves minor plaintiffs who were immediately taken to 26 3 This figure represents the settlement amount ($6,475.00) minus $2,000.00 in litigation costs and $3,118.42 in 27 medical liens. 4 The Court notes that Plaintiff cited only “Martinez et al. v. MD International Baja S De RL De CV” without 28 further citation. Plaintiff is reminded of Eastern District of California Local Rule 133(i)(1), which requires 1 the hospital for treatment and underwent continuing follow up diagnosis and/or care from 2 treatment providers from multiple disciplines including emergency room providers, 3 psychotherapists, chiropractors, and a neurologist over a period of years. 4 Upon the Court’s independent review of settlements of similar actions in this district, the 5 Court is not satisfied that the settlement is fair under Robidoux. See, e.g., D.B. v. City of 6 Sacramento, 2020 WL 8910843 (E.D. Cal. Apr. 16, 2020) (approving $60,000.00 settlement 7 award to minor hit by police vehicle that jumped onto the curb, resulting in minimal physical 8 injury including scrapes, bruises, and a sprained ankle); Rivett v. United States of America, 2023 9 WL 4238909 (E.D. Cal. June 28, 2023) (approving $64,000.00 settlement award to minor involved 10 in motor vehicle accident with AmeriCorps vehicle); Castro v. United States, No. 11 117CV00673AWIBAM, 2018 WL 3046977, at *2 (E.D. Cal. June 19, 2018), report and 12 recommendation adopted, No. 117CV00673AWIBAM, 2018 WL 3425023 (E.D. Cal. July 12, 13 2018) (approving an award of $12,000 to a minor involved in a motor vehicle accident with a 14 forest service vehicle). 15 The Court must also approve reasonable expenses and costs. See Cal. Prob. Code § 3601; 16 Rivett, 2023 WL 4238909, at *2. While Plaintiffs’ counsel has provided an exhibit detailing the 17 accounting of costs as to each minor plaintiff, (see Doc. 29), nothing in the motion or attached 18 exhibits provides an explanation of the only cost that would justify the costs under the 19 settlement—the Ronald Gabriel retainer. The Court notes that the renewed motion provides 20 copies of the neurological report prepared by Dr. Gabriel, but that report was bought and paid for 21 by Plaintiff independent of the retainer cost incurred by Plaintiffs’ attorneys. (Doc. 29 ¶ 13). The 22 renewed petition, like the original petition, fails to provide an explanation as to why the Dr. 23 Gabriel retainer was necessary in light of the reports prepared and within the context of the course 24 of the developing litigation. See Fei Liu v. BMW of N. Am., LLC, No. 2:17-CV-07244-AFM, 2019 25 WL 4196061, at *7 (C.D. Cal. May 29, 2019); cf. Smart v. Andersson, No. B163378, 2003 WL 26 21977068, at *4 (Cal. Ct. App. Aug. 19, 2003). Without further justification of this cost, the Court 27 cannot determine whether these expenses that total almost a third of minor plaintiffs’ recovery are 28 “reasonable.” 1 As a result of these two deficiencies, the Court declines to approve the overall structure of 2 the minors’ compromise as it currently stands. 4 For the reasons stated above, the Court DENIES the petition without prejudice. 5 IT IS SO ORDERED. 6

7 Dated: May 13, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28