Judge: Cherol J. Nellon, Case: 22STCV23135, Date: 2023-10-20 Tentative Ruling

Case Number: 22STCV23135    Hearing Date: October 20, 2023    Dept: 14

Instant Motion

Plaintiff Sergio Gaxiola, Jr. (through his guardian Elsy Felix) now petitions this court for approval of the settlement of his pending action. The petition is GRANTED.

Governing Rules

            California Rules of Court Rule 7.950 provides in relevant part that:

“A petition for court approval of a compromise of…a minor's disputed claim…must be verified by the petitioner and must contain a full disclosure of all information that has any bearing on the reasonableness of the compromise, covenant, settlement, or disposition.”

California Rules of Court Rule 7.951 provides:

“If the petitioner has been represented or assisted by an attorney in preparing the petition for approval of the compromise of the claim or in any other respect with regard to the claim, the petition must disclose the following information:

(1) The name, state bar number, law firm, if any, and business address of the attorney;

(2) Whether the attorney became involved with the petition, directly or indirectly, at the instance of any party against whom the claim is asserted or of any party's insurance carrier;

(3) Whether the attorney represents or is employed by any other party or any insurance carrier involved in the matter;

(4) Whether the attorney has received any attorney's fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the petition, and, if so, the amounts and the identity of the person who paid the fees or other compensation;

(5) If the attorney has not received any attorney's fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the petition, whether the attorney expects to receive any fees or other compensation for these services, and, if so, the amounts and the identity of the person who is expected to pay the fees or other compensation; and

(6) The terms of any agreement between the petitioner and the attorney.”

            California Rules of Court Rule 7.952(a) provides:

            “(a) Attendance of petitioner and claimant

The person petitioning for approval of the compromise of the claim on behalf of the minor or person with a disability and the minor or person with a disability must attend the hearing on the petition unless the court for good cause dispenses with their personal appearance.” (Emphasis in original).

California Rules of Court Rule 7.955 provides in relevant part:

“(a) Reasonable attorney's fees

(1) In all cases under Code of Civil Procedure section 372…unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney's fees payable from money or property paid or to be paid for the benefit of a minor or a person with a disability.

(2) The court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor or person with a disability and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made, except where the attorney and the representative of the minor…contemplated that the attorney's fee would be affected by later events.

(b) Factors the court may consider in determining a reasonable attorney's fee

In determining a reasonable attorney's fee, the court may consider the following nonexclusive factors:

(1) The fact that a minor or person with a disability is involved and the circumstances of that minor or person with a disability.

(2) The amount of the fee in proportion to the value of the services performed.

(3) The novelty and difficulty of the questions involved and the skill required to perform the legal services properly.

(4) The amount involved and the results obtained.

(5) The time limitations or constraints imposed by the representative of the minor or person with a disability or by the circumstances.

(6) The nature and length of the professional relationship between the attorney and the representative of the minor or person with a disability.

(7) The experience, reputation, and ability of the attorney or attorneys performing the legal services.

(8) The time and labor required.

(9) The informed consent of the representative of the minor or person with a disability to the fee.

(10) The relative sophistication of the attorney and the representative of the minor or person with a disability.

(11) The likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney's acceptance of the particular employment would preclude other employment.

(12) Whether the fee is fixed, hourly, or contingent.

(13) If the fee is contingent:

(A) The risk of loss borne by the attorney;

(B) The amount of costs advanced by the attorney; and

(C) The delay in payment of fees and reimbursement of costs paid by the attorney.

(14) Statutory requirements for representation agreements applicable to particular cases or claims.

(c) Attorney's declaration

A petition requesting court approval and allowance of an attorney's fee under (a) must include a declaration from the attorney that addresses the factors listed in (b) that are applicable to the matter before the court.

Discussion

The alleged injuries in this case are living in a home with mold and a lack of weatherproofing. Defendants have agreed to settle this matter by paying this Plaintiff $5,000.00.

            Plaintiff Sergio Gaxiola, Jr. has not incurred any medical expenses and has no ongoing injuries.

            Counsel will recover attorney’s fees of $1,250.00 and out of the total amount of the settlement. Those fees amount to 25% of the recovery.

Petitioner’s attorney is Jonathan Nielsen of Nielsen, Peterson & Nielsen LLP, 4015 Mission Oaks Blvd., Suite B, Camarillo, CA 93012, (805) 639-8600. Petitioner and counsel do have an agreement for services provided in connection with the claim giving rise to this petition. Counsel did not become concerned with this matter, directly or indirectly, at the instance of a party against whom the claim is asserted or a party’s insurance carrier. They are also representing the adult plaintiffs, and it is from those plaintiffs that the bulk of their compensation will come.

The $3,750.00 balance will be paid to the petitioner’s guardian.

Conclusion

            Petitioner has complied with all the requirements of California Rules of Court Rules 7.950, 7.951 and 7.955. Therefore, the petition is GRANTED.