After having approved the payment of $3.95 million to the law firm of Miller Barondess $3,950,000 over the last two-and-a-half years, the board of supervisors is set to approve at is meeting next Tuesday providing the law firm with another $1.45 million in a gamble to see if a credible defense can be made of the county’s Department of Children and Family Services, which is accused of allowing foster children in the county to have been abused, mistreated or neglected.
Those knowledgeable about the matter, which has manifested in a class action lawsuit, titled Gary G., et al v. Gavin Newson, et al, say former County Counsel Tom Bunton and current County Counsel Laura Feingold have consistently missed an opportunity to cut an exit for the county by making realistic concessions with regard to the county’s culpability and simultaneously standing down the inflated and spurious elements of the litigation to arrive at a settlement. That route would likely have brought the matter to a close for less than the $5.4 million in legal fees the county is to pay out in legal fees alone, they say, while the prospect of the county yet being on the hook for millions of more dollars when the case goes to trial continues.
On May 30, 2023, San Bernardino County was served with the lawsuit, litigation challenging certain California and San Bernardino County policies and procedures controlling the care of foster children.
Proposed as a class action lawsuit by the New York-based public interest group A Better Childhood, it currently involves 11 children as plaintiffs while purposed to be extended “on behalf of all others similarly situated.” Plaintiffs in the complaint have been changed to pseudonyms to maintain the children’s anonymity.
The pseudonymed plaintiffs are Gary G. born on December 8, 2021 in Apple Valley; Xander B. born on August 26, 2010, living in a group home in Chino; Francesca B. born on August 4, 2012 in Apple Valley and Delilah B. born on April 10, 2014 in New Mexico, both currently living in a foster home in Covina; Teddy H. born on March 5, 2019, living in a foster home in Victorville. Kevin E. and Sam E., twins born in California on January 20, 2010. living in a foster home in Cathedral City; Henry P. born in Alaska on July 13, 2007, who lives in afoster home in Huntington Beach.
According to the suit, the named plaintiffs “are all children in the San Bernardino County Department of Children and Family Services’s custody who have suffered harm at the hands of the San Bernardino County Department of Children and Family Services.
does not adequately vet foster homes before placing children, such as plaintiffs, in them. In fact, the San Bernardino County Department of Children and Family Services even lacks proper procedures and practices to screen out known abusers from serving as foster parents. Once the San Bernardino County Department of Children and Family Services places foster children in foster homes, it also fails to adequately monitor the foster children to ensure their safety. Caseworkers fail to make enough home visits to determine whether foster children are safe in their placements. The San Bernardino County Department of Children and Family Services also does not provide adequate case planning for Plaintiffs or the other foster children in its custody.”
In addition, according to the suit, the San Bernardino County Department of Children and Family Services “lacks adequate short-term emergency placements for foster children who need them. Defendants further permit the San Bernardino County Department of Children and Family Services’ caseworkers to carry caseloads that are too high to possibly meet the standards they must satisfy under the law. In fact, the San Bernardino County Department of Children and Family Services’ caseworkers often carry caseloads five or six times higher than national professional standards recommend. Caseworkers with such high caseloads cannot adequately document and implement each foster child’s case plan as mandated by federal and state laws. The San Bernardino County Department of Children and Family Services CFS also does not provide Plaintiffs or other foster children in its custody with timely health or dental assessments.”
Marcia Robinson Lowry and Jonathan G. Borle, in-house lawyers with A Better Childhood represent the plaintiffs, as do Polly Towill, Daniel Brown, Benjamin O. Aigboboh, Tori Kutzner, Victoria Ayeni, and Alexandria Amerine of the Los Angeles office of the law firm Sheppard Mullin Richter & Hampton.
Over the more than two years that lawyers with Miller Barondess have been working on the case, little or no progress toward settlement has been made.
While all of the members of the law firm of Sheppard Mullin Richter & Hampton working on the case are doing so pro bono, Miller Barondess attorneys, both partners and associates, are being paid $625 per hour and paralegals are being paid $225 per hour by the county.
Despite the potential that as many as 5,800 children who have passed through the county’s foster system in recent years could join in the lawsuit as class action plaintiffs, could join in the lawsuit, Lowry, Borle and the lawyers with Sheppard Mullin Richter & Hampton have had only marginal success in transforming the case into one that might truly be considered class action in scope. At issue is the provability that large numbers of foster children were actually harmed by the San Bernardino County Department of Family Services. There has been a marshaling of facts and evidence to demonstrate there was neglect on the part of the county and some instances of abuse and mistreatment, but taken from the perspective of 5,800 having been fostered in the county in the last two decades, these appear to be isolated cases. The county could have, those considered to be on top of the matter say, dealt straightforwardly with those but has yet to do so in a meaningful way. The case could thus be limited to the eleven original plaintiffs and a handful of others. The county is in a relatively weak position with regard to a limited set of plaintiffs and in a much stronger position relating to the plaintiffs and Sthe lawyers with are looking scare up.
When a class action includes plaintiffs with and without legitimate cases, the court may decertify the class, split it into sub-classes, or exclude the invalid claims to ensure legal, factual, and typicality requirements are met
A class action lawsuit must generally have common issues that allow for a single, uniform resolution. If the differences between separate groups of plaintiffs are too vast, the court may determine that individual issues predominate over common ones, causing the class certification to be revoked. Plaintiffs whose claims do not fit the common legal theory or lack evidence may be removed from the class. The court may also create separate sub-classes for different groups of plaintiffs with similar claims, allowing the legitimate case to proceed while dismissing spurious claims outright. Individuals with invalid or different claims may be excluded during the certification process, allowing them to pursue separate, individual litigation if they choose.
If invalid claims are allowed to remain, they risk causing inconsistent judgments or undermining the legitimacy of the entire class action. If a settlement is proposed, the court’s charter of responsibility is to ensure it is fair to all members, which may involve reducing or eliminating payouts to those without legitimate, evidence-backed claims.
In recommending that the board of supervisors extend the contract for legal services with Miller Barondess for another $1.45 million, County Counsel Feingold hinted, but did not directly state, that lawsuit might be brought to and end within the next sixteen months. She stated, “Total cost of this Agreement is not anticipated to exceed $700,000 for the remainder of 2025-26 and $750,000 for 2026-27. The Gary G. lawsuit is a unique and complex litigation matter that requires defense of significant technical policies and procedures used to provide foster care services throughout the county.” Feingold stated. “The Office of County Counsel selected the firm of Miller Barondess, LLP as the most qualified to defend the County and its employees in the Gary G. lawsuit based on the experience of key personnel and amount of time in practice in this specific area of law. Miller Barondess, LLP has expertise in similar cases and has provided a discounted public agency rate for experienced practitioners in this area of the law. Although litigation is by its nature uncertain, it is anticipated that this case will resolve within 2027-28. The Agreement will end no later than March 10, 2031.”
–Mark Gutglueck