Judge Christian R. Gullon, Case Number: 22PSCV00682, Date: 2023-08-15 Tentative Ruling

Judge: Christian R. Gullon, Case: 22PSCV00682, Date: 2023-08-15 Tentative Ruling

The Court may change tentative rulings at any time. Therefore, attorneys are advised to check this website to determine if any changes or updates have been made to the tentative ruling.

Counsel may submit on the tentative rulings by calling the clerk in Dept. O at 909-802-1126 before 8:30 the morning of the hearing. Submission on the tentative does not bind the court to adopt the tentative ruling at the hearing should the opposing party appear and convince the court of further modification during oral argument.

The Tentative Ruling is not an invitation, nor an opportunity, to file any further documents relative to the hearing in question. No such filing will be considered by the Court in the absence of permission first obtained following ex-parte application therefore.

Plaintiff’s PETITION FOR APPROVAL OF COMPROMISE OF CLAIM OR ACTION OR DISPOSITION OF PROCEEDS OF JUDGMENT FOR PERSON WITH A DISABILITY is DENIED without prejudice because (1) attorney fees are unreasonable and (2) medical liens are TBD.

This case arises from alleged violations of the Elder Abuse and Dependent Adult Civil Protection Act (“EADACPA”). Plaintiff MARK MOORE, by and through his Guardian ad Litem, AMANDA REAL alleges the following against INLAND VALLEY PARTNERS LLC dba INLAND VALLEY CARE AND REHABILITATION CENTER (“Defendant”): In 2017, at age forty-nine, Mark Moore was admitted to Defendant’s facility “for rehabilitation, care, treatment, and supervision in light of his then-existing mental and physical condition.” As a result of Defendant’s failures, Plaintiff alleges that, amongst other problems, he developed pressure injuries (Stage IV sacrococcyx pressure injury); suffered from severe dehydration, and was intentionally overmedicated.

On February 21, 2023, the court heard oral argument on the matter and asked for supplemental briefing on the issue.

On May 9, 2023, the court issued its final ruling, denying the motion without prejudice.

On May 24, 2023, Defendant filed the amended petition, which the court granted on August 15, 2023.

On September 15, 2023, Plaintiff filed the instant application for petition to approve compromise of disputed claim.

On September 19, 2023, Plaintiff filed a motion to seal confidential information, which the court granted the same day.

A petition for court approval of a compromise of a disabled person’s claim under CCP section 372 subdivision (a)(1) must be verified by the petitioner and contain a full disclosure of all information having any bearing on the reasonableness of the compromise. (See Cal. Rules of Court Rule 7.950; see also Barnes v. Western Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256, fn. 4.) The petition must be prepared on a fully completed Judicial Council form MC-350. (Cal. Rules of Court Rule 7.950; 7.101(b)(3).)

After a review of the petition, the court denies it for two reasons: (i) attorney fees are unreasonable and (ii) medical liens are TBD.

First, mindful that the figures regarding attorney fees are sealed, the court will not mention the exact amount of the settlement in this ruling. As noted by Plaintiff in his declaration, pursuant to California Rules of Court, rule 7.955(b), a court may consider, inter alia, the following factors in approving attorney fees: (a) The novelty and difficulty of the questions involved, (b) the skill required to perform the legal services properly and (c) the time and labor required.

Here, while Counsel significant skill and experience in this area of the law (as evidenced by his recovery of over $20 million in similar cases), a contingency fee of forty percent is unreasonable because there was (i) one motion (motion to compel arbitration), (ii) no discovery[1] and (iii) strong facts supporting a dependent adult case (i.e., making case less difficult).[2] Moreover, Counsel Yeroushalmi’s declaration cites—without reference to reports, articles, or other sources —that that attorneys representing plaintiffs in similar abuse and neglect litigation use the same contingency fee agreement of 40-45%. (Yeroushalmi Decl., p. 3, p. 40 of 60 of PDF.)

Therefore, considering the totality of the circumstances, the court finds a 40% contingency fee to be unreasonable; the court reduces the fee to 30% of the net recovery.[3]

Here, the amount of the three medical liens is required under California Rules of Court Rule 7.950 because it constitutes “information bearing upon the reasonableness of the compromise.” For example, if the medical lien is for the entire amount of Plaintiff’s recovery, then the compromise is not reasonable because Plaintiff gets nothing in recovery.

Therefore, though the court acknowledges that Plaintiff’s Counsel is and continues to be in the process of negotiating with Medi-Cal so as to increase Plaintiff’s net recovery (Decl., p. 3), the application is denied until a final number is determined.

[1] There are no formal discovery motions in the docket. To the extent that Plaintiff may argue substantial discovery was undertaken it is unclear as to the scope and extent of the discovery (i.e., number of discovery propounded, number of discovery responded to, whether depositions took place, etc). (See Yeroushalmi Decl., p. 5 [“[The] [o]ffice undertook considerable research preparing this case for discovery following the resolution of Defendant’s motion, which included preparing written discovery as well as identifying several individuals for depositions, multiple notices of depositions of which were served between February 2023 and May 2023.”], italics added.)

[2] Strong facts being allegations that Plaintiff suffered from severe dehydration (as evidenced by abnormal creatine levels), Defendant failed to follow physician orders, and allegations that Defendant overmedicated Plaintiff. (Petition p. 13 of 60 of PDF.)

[3] Absent a novel and difficult case, this court generally awards no more than 30 percent in a contingency fee arrangement.