Opinion
Case No. 1:07-CV-038 8 OWW DLB
08-03-2011
ABARCA, RAUL VALENCIA, et al., Plaintiffs, v. MERCK & CO., INC., et al., Defendants.
FINDINGS OF FACT REGARDING THE:
(1) PARTIAL SETTLEMENT WITH THE
MERCED IRRIGATION
DISTRICT/MERCED DRAINAGE
DISTRICT NO. 1; (2) PARTIAL
SETTLEMENT WITH THE COUNTY OF
MERCED; (3)SETTLEMENT WITH THE
FRANKLIN COUNTY WATER DISTRICT;
AND (4) SETTLEMENT WITH THE
CITY OF MERCED
Following the hearing regarding the settlements reached between the plaintiffs, the Merced Irrigation District/Merced Drainage District No. 1, County of Merced, City of Merced, and Franklin County Water District, the following Findings of Fact are entered:
FINDINGS OF FACT
SETTLEMENTS
1. In or around October 2009, the Ranchwood plaintiffs, which consisted of 83 property owners, reached a settlement with Ranchwood Homes Corp., Ranchwood Properties, Ranchwood Contractors, Inc., Hostetler Investments, LLC, El Capitan Estates, LLC, Hollywood Park Estates, LLC, and Ranchwood Residential, Inc., for $598,982.13. All Ranchwood plaintiffs agreed to the settlement.
2. In or around October 2010, the plaintiffs agreed in principle to a partial settlement with the Merced Irrigation District/Merced Drainage District No. 1 for $700,000. A final Settlement Agreement detailing this settlement was executed on April 22, 2011.
3. In or around October 2010, the plaintiffs agreed in principle to a partial settlement with the County of Merced for $550,000. A final Settlement Agreement detailing this settlement was executed on June 14, 2011.
4. In or around October 2010, the plaintiffs agreed in principle to settle all claims against the Franklin County Water District for $350,000. A final Settlement Agreement detailing this settlement was executed on June 27, 2011.
5. In or around February 2011, the plaintiffs agreed in principle to settle all claims against the City of Merced for $1,500,000. A final Settlement Agreement detailing this settlement was executed on May 4, 2011.
APPROVAL BY THE PLAINTIFFS REGARDING THE ABOVE REFERENCED SETTLEMENTS
6. The Retainer Agreement between each plaintiff and their counsel permits a two-thirds (2/3) majority to agree to a settlement and thereby bind all plaintiffs to such settlement.
7. Notice was given to each plaintiff involved in the Ranchwood settlement and each Ranchwood plaintiff agreed to the settlement.
8. Notice has been given to every plaintiff regarding the Settlement Agreements with the Merced Irrigation District/Merced Drainage District No. 1, the County of Merced, the Franklin County Water District, and the City of Merced as described above.
9. The plaintiffs have submitted sufficient evidence that the Ranchwood plaintiffs agreed to the settlement described above.
10. The plaintiffs have submitted sufficient evidence that a two-thirds (2/3) majority of all plaintiffs have agreed to the settlements entered into with Merced Irrigation District/Merced Drainage District No. 1, the County of Merced, the Franklin County Water District, and the City of Merced.
11. The hearing regarding the above-referenced settlements took place on July 20, 2011, in open court where everybody who is a plaintiff in this action had a chance to file an objection and/or to appear before the Court and voice any objection. No plaintiff appeared for purposes of objecting to any of the settlements or to the legality or enforceability of the Retainer Agreement as described above.
MINORS' COMPROMISES
12. The plaintiffs have submitted Petitions for Approval of Compromise of Minor's Claims as well as a Declaration in support of each Petition executed by the Court-Appointed Guardian Ad Litem for all minor plaintiffs in this case.
13. In light of the number of minors at issue, and because this represents only a partial settlement of claims, and because the Court appointed Rule 53 special master has reviewed all of the petitions and declarations submitted to the Court, good cause exists to not require that each Guardian ad Litem appear before the Court.
14. Further, the Settlements described herein are being made to facilitate the progress of the remaining claims including those claims against the Merced Irrigation District/Merced Drainage District No. 1, the County of Merced, Merck & Company, Inc., Amsted Industries, Inc., and Baltimore Aircoil Company, Inc. Plaintiffs do not intend these settlements to be full and complete compensation for any minor's alleged injuries.
15. In a separate Order, the Court approved each of these Petitions, and binds each and every minor plaintiff, to the settlement with the Merced Irrigation District/Merced Drainage District No. 1, the County of Merced, the Franklin County Water District, and the City of Merced.
GOOD FAITH SETTLEMENTS
16. The Merced Irrigation District/Merced Drainage District No. 1 filed its Motion for Good Faith Settlement on June 10, 2011, and the Court approved it on July 18, 2011.
17. The County of Merced filed its Motion for Good Faith Settlement on June 15, 2011, and the Court approved it on July 15, 2011.
18. The Franklin County Water District filed its Motion for Good Faith Settlement on June 30, 2011, and the Court approved it on July 11, 2011.
19. The City of Merced filed its Motion for Good Faith Settlement on May 18, 2011, and the Court approved it on July 15, 2011.
20. No opposition was filed to any of the Motions for Good Faith Settlement.
USE OF THE SETTLEMENT PROCEEDS AS REIMBURSEMENT OF COSTS
21. The Retainer Agreement between each plaintiff and their counsel provides that the attorneys have the right of reimbursement of costs up to the amount of settlement.
22. This is a valid and enforceable contract between authorized plaintiffs and their counsel.
23. The costs incurred to date well exceed the settlements to date.
24. Subject to the Court's later Order approving distribution, plaintiffs' counsel may thus use the settlement proceeds as described herein as partial reimbursement of costs.
DISTRIBUTION OF SETTLEMENT PROCEEDS
25. The Settlement Proceeds paid by the Merced Irrigation District/Merced Drainage District No. 1, the County of Merced, the Franklin County Water District, and the City of Merced shall be held in the Shernoff Bidart Echeverria LLP Trust Account until an Order is entered by this Court finding that the plaintiffs have complied with the obligations regarding the Distribution of Settlement Proceeds under the Settlement Agreements.
HONORABLE OLIVER W. WANGER,
JUDGE OF THE UNITED STATES
DISTRICT COURT/EASTERN DISTRICT