Moore, et al. v. County of Kern, et al., No. 1:2005cv01115 - Document 222 (E.D. Cal. 2009)
Court Description: ORDER ADOPTING 218 FINDINGS AND RECOMMENDATIONS signed by Chief Judge Anthony W. Ishii on 09/10/2009. (Flores, E)
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Moore, et al. v. County of Kern, et al. Doc. 222 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 JAMES W. MOORE, JR., et al., 10 11 12 13 14 15 ) ) Plaintiff, ) v. ) ) COUNTY OF KERN, et al., ) ) Defendants. ) ) ) AND RELATED CONSOLIDATED CASE ) AND CROSS-CLAIMS ___) 1:05-cv-01115-AWI-SMS Consolidated with: 1:06-cv-0120-OWW-SMS ORDER RE: FINDINGS AND RECOMMENDATIONS RE: AMENDED PETITION FOR COMPROMISE OF CLAIM OF MINOR PLAINTIFF BRYCE J. MOORE (Docs. 197, 218) 16 Plaintiffs are proceeding with a civil action in this Court. 17 The matter was referred to the Magistrate Judge pursuant to 28 18 U.S.C. § 636(b) and Local Rules 72-302 and 72-303. 19 On August 25, 2009, the Magistrate Judge filed findings and 20 a recommendation that the District Judge approve the settlement 21 set forth in the amended petition of Michelle Tripp, guardian ad 22 litem for the minor Plaintiff Bryce J. Moore (BJM), filed on June 23 30, 2009, and enter various orders relating to the effectuation 24 of the settlement. The findings and recommendation were served on 25 all parties on August 25, 2009, and contained notice that any 26 objections to the findings and recommendations were to be filed 27 within ten (10) days of the date of service of the order. On 28 1 Dockets.Justia.com 1 September 2, 2009, an order setting a deadline for filing 2 objections of September 9, 2009, was filed and served on the 3 parties. The time for filing objections has passed, but no party 4 has filed any objections; statements of non-opposition have been 5 filed by Defendants Roxanne Fowler, Angel Lopez Bravo, Mark 6 Jimenez, County of Kern, County of Kern Sheriff’s Department, 7 Mack Wimbish, and Moses Adame. 8 In accordance with the provisions of 28 U.S.C. § 636 9 (b)(1)(C) and Britt v. Simi Valley United School Dist., 708 F.2d 10 452, 454 (9th Cir. 1983), this Court has conducted a de novo 11 review of the case. Having carefully reviewed the entire file, 12 the Court finds that the report and recommendation are supported 13 by the record and proper analysis. 14 15 Accordingly, IT IS HEREBY ORDERED that: 16 1) The findings and recommendations filed August 25, 2009, 17 are ADOPTED IN FULL; 18 2) The terms of the settlement stated in the findings and 19 recommendations, including costs and attorney’s fees, ARE 20 APPROVED; 21 3) It IS ORDERED that Defendant, COUNTY OF KERN, and its 22 insurer, shall pay the sum of $3,025,000.00 (hereinafter 23 "settlement money") on behalf of all defendants, COUNTY OF KERN, 24 KERN COUNTY SHERIFF'S DEPARTMENT, former SHERIFF MACK WIMBISH, 25 KERN COUNTY DETENTION OFFICERS GREG COSSEL, MOSES ADAME, MARK 26 JIMENEZ, CLINTON MINOR, GREGORY MORGAN, SHANNON HAUINGS, LARRY 27 JOHNSON, JULIAN TREVINO, LISA ROMERO, ANGEL BRAVO, ROXANNE 28 FOWLER, RALPH CONTRERAS and DANIEL LINDINI, SENIOR DETENTION 2 1 OFFICER JAIME TELLEZ, DETENTION SERGEANT RANDAL HOLTZ, and KERN 2 COUNTY SHERIFF DEPUTIES JEFF COLBERT and MARCUS HUDGINS, in 3 consideration of a full and final release and discharge of and 4 from all claims, charges, and demands of plaintiff, BMJ, arising 5 from this action. Petitioner is hereby authorized and directed to 6 execute and deliver to defendants a full, complete, and final 7 release and discharge of and from any and all claims and demands 8 of herself and Plaintiff, BJM, by reason of the incident 9 described herein and resulting injuries, upon receipt of the 10 settlement money; 11 4) It IS ORDERED that from the above stated settlement 12 money, the defendants shall pay $1,600,000.00 for the purchase of 13 a tax-free structured settlement annuity policy on behalf of 14 plaintiff, BJM, with a guaranteed benefit of $3,473,156.00 and an 15 expected benefit of $11,142,413.00, from New York Life Insurance 16 Company through Richard L. Bishop, CSSC, RSP of Settlement 17 Professionals, Inc. be paid for the purchase of an annuity. The 18 defendants shall execute a Settlement Agreement and Release and 19 execute a "Qualified Assignment" of their obligation to make 20 periodic payments pursuant thereto in compliance with I.R.C. 21 Section 104(a)(2) and Section 130(c) of the Internal Revenue Code 22 of 1986, as amended. Said assignment shall be made to New York 23 Life Insurance and Annuity Corporation ("Assignee"). Upon doing 24 so, the defendants will no longer be obligated to make further 25 periodic payments and the Assignee will be the plaintiff's sole 26 obligor with respect to the future periodic payments. Assignee 27 shall purchase a structured settlement annuity for $1,600,000.00 28 through New York Life Insurance Company, which is rated A++ 3 1 (Superior) financial size XV, through A.M. Best. Said annuity 2 shall provide guaranteed periodic payments (subject to annuity 3 rates in effect at the time of purchase) made according to the 4 schedule found in the Structured Settlement Proposal attached to 5 the findings and recommendation as Exhibit "A". 6 No part of the said $1,600,000.00 may be paid to the 7 petitioner, Michelle Tripp. This Court has determined that a 8 tax-free structured settlement is in the best interest of the 9 minor. BJM, by and through his guardian ad litem, Michelle Tripp, 10 is authorized to settle this claim on behalf of BJM and receive 11 and negotiate funds on behalf of the minor. No bond shall be 12 required of BJM, by and through his guardian ad litem, Michelle 13 Tripp. Receipt of purchase of annuity is to be filed with the 14 Court within sixty (60) days; 15 5) It IS ORDERED that from the settlement money, the sum of 16 $952,309.55 shall immediately be paid to Rodriguez & Associates 17 for the payment of attorney fees, costs, and reasonable expenses 18 incurred in connection with the prosecution of this action; and 19 6) It IS ORDERED that the remaining balance of the 20 settlement money in the amount of $472,690.45 shall be placed in 21 THE BRYCE J. MOORE IRREVOCABLE TRUST, hereby approved of by this 22 Order, with petitioner, MICHELLE TRIPP as the trustee and 23 plaintiff, BJM, as the beneficiary, and that the trust res be 24 used towards the purchase of a primary single family dwelling on 25 behalf of BJM which will become an asset of the trust. 26 Petitioner, as trustee, will not be permitted to transfer, sell, 27 or encumber said property, and transfer of title of said property 28 shall pass to BJM from the Trust, upon his attainment of the age 4 1 of eighteen (18). This Trust will be revocable when the minor 2 attains the age of eighteen (18), and contains all other terms 3 and conditions determined to be necessary to protect the minor's 4 interest, as more fully described in the trust documents attached 5 to the findings and recommendations as Exhibit "B." 6 7 IT IS SO ORDERED. 8 Dated: 0m8i78 9 September 10, 2009 /s/ Anthony W. Ishii CHIEF UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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