Judge: Anne Hwang, Case: 22STCV28646, Date: 2023-11-29 Tentative Ruling

Case Number: 22STCV28646    Hearing Date: November 29, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

The Court has reviewed the petition by Petitioner Edwin Flores (Petitioner) on behalf of Claimant Erick Geovanni Flores Lopez, age 28. The Court denies the petition without prejudice.

Petitioner states that Claimant was severely injured by a semi-trailer while riding his bicycle. Claimant has suffered traumatic brain injury and several injuries. Claimant is currently awake from a coma, but cannot communicate. According to the medical records, Claimant requires total care and constant supervision. (Attach. 8.)

Petitioner’s counsel (Counsel) seeks 40% of the settlement as compensation. Counsel has included a declaration discussing the factors in California Rules of Court, rule 7.955(b). In relevant part, Counsel states he bore some risk of loss, since evidence showed that Claimant was riding his bicycle erratically when the accident occurred. There was also no evidence to dispute that Claimant was also negligent since he was in a coma during discovery. (Glassman Decl. ¶¶ 5, 16.) Counsel states he conducted discovery for six months, deposed two responding officers, and retained one expert. (Id. ¶ 5.) Also, Counsel attached a signed retainer agreement where Petitioner agreed to the 40% compensation value. (Attach. 17a.) However, the Court finds that counsel’s declaration is insufficient to justify the attorney’s fees request, particularly in light of the total settlement amount. Counsel is to provide further justification for the 40% sought, or, in the alternative, the Court will approve 33% based on the information provided.

Petitioner seeks to dispose of the funds as follows: $1,371,639.62 to be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the court. Petitioner has properly included the terms and conditions of the annuity. (Attach 18b(3).) The terms are as follows: Claimant will receive monthly payments of $6,225.25, guaranteed for 30 years starting on February 1, 2024. The guaranteed benefits are $2,241,090.00.

Petitioner proposes to fund $400,000 of the settlement proceeds as cash into the SNT and use the remaining $1,371,639.62 to purchase an annuity that would pay into the SNT. 

            The Court finds the following and approves the establishment and funding of a SNT pursuant to Probate Code section 3604(b):

• The SNT beneficiary has a disability which substantially impairs the individual’s ability to provide for her own care or custody and constitutes a substantial handicap;
• The SNT beneficiary is likely to have special needs that will not be met without the trust;
• The money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the SNT beneficiary’s special needs.

However, the Court requires $544,000 bond submitted by trustees (Lee Ann Hitchman and Brian Hitchman) to this department. (California Rules of Court, Rule 7.903(c)(5), Probate Code section 2320.) 

The Court notes that the general trust orders at Attachment 8b(2) state conflicting bond requirements, with incorrect “Bond Not Required” stated in paragraph 11 of form MC-351. This requires correction.

In addition, Attachment 8b(2), paragraph 9, must be revised to reflect an actual 14 month calendar due date for filing the first trust accounting. The Court suggests the order be revised to reflect a January 29, 2025 due date.

If Petitioner does not intend to submit a new petition addressing the attorney’s fees, the revised order shall be filed and served within 5 days. The matter will then be set for an Order to Show Cause re Settlement (bond, annuity, funding, and filing of LASC Form PRO 044) for February 5, 2024 at 8:30 a.m. in Department 32 of the Spring Street Courthouse.

Moving party is ordered to give notice and file a proof of service of such.