1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JILL GREENBERG, et al., Case No.: 20-cv-2125-LAB (DEB)

12 Plaintiffs, REPORT AND 13 v. RECOMMENDATION FOR ORDER GRANTING JOINT PETITION TO 14 PUPPY DOGS AND ICE CREAM, APPROVE MINOR’S INC., 15 SETTLEMENT Defendant. 16 [DKT. NO. 10] 17 REDACTED 18

19 This Report and Recommendation is submitted to the Honorable Larry Alan Burns, 20 United States District Judge, pursuant to Local Civil Rule 17.1. 21 I. INTRODUCTION 22 Before the Court is the parties’ “Joint Petition to Approve Minor’s Settlement.” 23 Dkt. No. 10. The parties’ Petition seeks Court approval of a settlement between minor 24 Plaintiff V.G. and Defendant. Id. For the reasons set forth below, the Court 25 RECOMMENDS the Petition be GRANTED. 26 II. BACKGROUND 27 On October 29, 2020, Plaintiff Jill Greenberg, individually and on behalf of minor 28 1 commercial purposes and without authorization. See Dkt. No. 1. The Complaint alleges 2 two causes of action on behalf of V.G.: (1) common law commercial misappropriation; and 3 (2) violation of California Civil Code § 3344 (“Use of another’s name, voice, signature, 4 photograph, or likeness for advertising or selling or soliciting purposes”). Id. at 8–9. V.G. 5 alleges that she “suffered harm as a result . . . including but not limited to having her 6 likeness used in connection with a company and product she does not endorse or support.” 7 Id. at 9. The parties reached an early resolution of the case. On February 17, 2021, the 8 parties filed the instant Petition seeking the Court’s approval of the settlement of V.G’s 9 claims. Dkt. No. 10. 10 III. LEGAL STANDARD 11 “[T]he court in which a minor’s claims are being litigated has a duty to protect the 12 minor’s interests.” Salmeron v. United States,

(9th Cir. 1983); see 13 also Fed. R. Civ. P. 17(c)(2) (requiring district courts to “appoint a guardian ad litem . . . 14 to protect a minor . . . who is unrepresented in an action”). When the parties settle an action 15 involving a minor litigant, the Court must “‘conduct its own inquiry to determine whether 16 the settlement serves the best interests of the minor.’” Robidoux v. Rosengren,

1177, 1181 (9th Cir. 2011) (quoting Dacanay v. Mendoza,

(9th Cir. 18 1978)). “No action by or on behalf of a minor or incompetent, or in which a minor or 19 incompetent has an interest, will be settled, compromised, voluntarily discontinued, 20 dismissed or terminated without court order or judgment.” CivLR 17.1(a). 21 Courts “limit the scope of their review to the question whether the net amount 22 distributed to each minor plaintiff in the settlement is fair and reasonable, in light of the 23 facts of the case, the minor’s specific claim, and recovery in similar cases.” Robidoux, 638 24 F.3d at 1181–82. Courts also “evaluate the fairness of each minor plaintiff’s net recovery 25 without regard to the proportion of the total settlement value designated for adult co- 26 plaintiffs or plaintiffs’ counsel — whose interests the district court has no special duty to 27 safeguard.”

at 1182 (citing Dacanay,

). “So long as the net recovery to 28 each minor plaintiff is fair and reasonable in light of their claims and average recovery in 1 similar cases, the district court should approve the settlement as proposed by the parties.” 2

3 Robidoux applies to cases involving the settlement of a minor’s federal claims.

4 at 1179 n.2. Because California law governs V.G.’s commercial misappropriation and 5 California Civil Code § 3344 claims, the Court also evaluates the settlement under state 6 law. See A.M.L. v. Cernaianu, No. 12-cv-06082-JAK-RZx,

, at *3 7 (C.D. Cal. Apr. 1, 2014) (citing cases applying state rules to a settlement of state law 8 claims).1 9 Under California law, the court must evaluate the reasonableness of the settlement 10 and determine whether it is in the best interest of the minor. Goldberg v. Superior Court, 11

(1994). California law also requires a court to approve any 12 reasonable expenses, costs, and attorney’s fees deducted from the settlement. Cal. Prob. 13 Code § 3601(a). 14 This District’s Local Rules also require that “[m]oney or property recovered by a 15 minor . . . by settlement or judgment must be paid and disbursed in accordance with 16 California Probate Code [§] 3600, et seq.” CivLR 17.1 (b). Under California Probate Code 17 § 3611(e), “[i]f the remaining balance of the money and other property to be paid or 18 delivered does not exceed five thousand dollars ($5,000) in value and is to be paid or 19 delivered for the benefit of a minor . . . all or any part of the money and the other property 20 [must] be paid or delivered to a parent of the minor.” 21 / / 22 / / 23

24 1 The Court need not decide whether Robidoux or state rules apply because the 25 outcome under both is the same. See A.M.L.,

, at *3 (finding it 26 unnecessary for the court to resolve whether Robidoux or state rules applied to the approval of a minor’s compromise in a case involving state tort law claims where the proposed 27 settlement would satisfy both standards); see also R.N. v. United States, No. 17-cv-1583-L 28 (BGS),

, at *2 n.2 (S.D. Cal. Dec. 11, 2019) (same); Estate of Alvarado 1 IV. DISCUSSION 2 Under the proposed settlement, Defendant agrees to pay $_____ to all Plaintiffs to 3 settle all claims. Of that amount, V.G. will receive $_____, and Plaintiffs’ counsel will 4 receive twenty-five percent of V.G.’s gross recovery. Dkt. No. 10-2 at 3. The parties also 5 represent that no costs will be deducted from V.G.’s portion of the settlement. 6 Dkt. Nos. 10-1 at 5; 10-3 at 2–3. Additionally, V.G.’s mother, Ms. Greenburg, will hold 7 the settlement proceeds in trust on V.G.’s behalf until she turns 18 years old on 8 August 2, 2021. Dkt. No. 10-2 at 3. 9 After conducting an independent inquiry and evaluating the proposed settlement, the 10 undersigned recommends approval of the proposed settlement as a fair and reasonable 11 settlement that serves the best interests of V.G. In recommending approval, the Court gives 12 substantial weight to the lack of any physical, mental, or emotional injuries suffered by 13 V.G. See Dkt. No. 10-1 at 3 (representing that V.G. “has not incurred any medical 14 expenses, and does not anticipate any future such needs.”). Thus, V.G.’s potential recovery 15 is limited if the case were to proceed to trial. The Court also recognizes that the outcome 16 of litigation is uncertain by its nature, and, if the case were to proceed to trial, V.G. could 17 recover nothing. Moreover, proceeding to trial would necessarily require a substantial 18 outlay of costs, expenses, and attorney’s fees that might significantly reduce (or eliminate 19 altogether) any modest damages award that V.G. might receive. 20 The Court also finds that the settlement of V.G.’s claims is comparable to 21 settlements and verdicts in similar cases. See, e.g., Timed Out LLC v. 13359 Corp.,

App. 5th 933, 936 (2018) (trial court awarded professional model $4,483.30 after two-day 23 bench trial where “the trial court found a ‘clear violation by Defendant’ under the common 24 law and section 3344” for using the plaintiff’s likeness to promote an event at a bar); Del 25 Amo v. Baccash, No. 7-cv-663 PSG (JWJx),

, at *10 (C.D. Cal. 26 July 15, 2008) (“[Plaintiff] is entitled to recover $750 for Defendants’ misappropriations 27 through use of each of the . . . photographs” used on Defendants’ website to promote its 28 online rental business.); Ken Roberts Co. v. Go To.com, No. 99-cv-4775-TEH,

Dist. LEXIS 6740, at *18 (N.D. Cal. May 11, 2000) (“Plaintiffs are also awarded $750 2 against each of the two defaulting defendants pursuant to California Civil Code section 3 3344.”); Joyner v. Akhtarzad, No. BC353707,

(Cal. Super. Ct.) (minor 4 plaintiff received $9,000 in settlement where defendants did not have plaintiff’s permission 5 to use her photographs in an electronic products advertisement printed in the Los Angeles 6 Times). 7 Additionally, the method of disbursement appears fair and reasonable and within the 8 bounds of the applicable law and this District’s Local Civil Rules. V.G.’s mother will hold 9 V.G.’s $_____ recovery in trust until V.G. reaches the age of majority. Dkt. Nos. 10-1 at 10 6; 10-2 at 3. Accord Doe v. Lincoln Mil. Prop. Mgmt. LP, No. 20-cv-00224-GPC (AHG), 11

, at *4 (S.D. Cal. Sept. 30, 2020) (John Doe 2’s settlement proceeds, not 12 exceeding $5,000, “can be disbursed to his mother Jane Doe to be held in trust for him until 13 he reaches the age of majority.”). 14 Finally, the Court finds that the proposed amount of attorneys’ fees is reasonable. 15 See Napier v. San Diego, No. 15-cv-581-CAB (KSC),

, at *3 (S.D. Cal. 16 Nov. 28, 2017) (“Generally, fees in minors cases have historically been limited to 25% of 17 the gross recovery”). 18 In sum, the Court finds that the settlement is fair and reasonable and in V.G.’s best 19 interests in light of the nature of the claims, the procedural posture of the case, the lack of 20 any physical or emotional injuries suffered by V.G., and settlements and verdicts in 21 comparable cases. Accordingly, the undersigned recommends approving the proposed 22 settlement. 23 V. CONCLUSION 24 Based on the foregoing, the undersigned recommends that the Court issue an order: 25 (1) adopting this Report and Recommendation; and (2) GRANTING the Joint Petition to 26 Approve Minor’s Settlement. 27 It is ORDERED that on or before April 5, 2021, any party to this action may file 28 written objections to this Report and Recommendation with the Court and serve a copy on 1 parties. The document should be captioned “Objections to Report and 2 || Recommendation.” Any reply to the objections must be filed with the Court and served on 3 all parties on or before April 12, 2021. 4 IT IS SO ORDERED. 5 || Dated: March 19, 2021 — PTT 7 Honorable Daniel E. Butcher 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