Judge: Daniel M. Crowley, Case: 20STCV48614, Date: 2022-10-14 Tentative Ruling

Case Number: 20STCV48614    Hearing Date: October 14, 2022    Dept: 28

CASE NUMBER:  20STCV48614                                                  

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Expedited Petition to Approve Compromise of Pending Action of a Minor, Aryeh Gaspard, Age 12

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TENTATIVE:  DENIED

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FACTS:  Claimant Aryeh Gaspard (“Claimant”) was swimming at the beach when him and his father, Decedent Shad Gaspard (“Decedent”) were allegedly trapped in dangerous conditions caused by waves. Lifeguards attempted to rescue Claimant and Decedent, but only managed to save Claimant. Decedent drowned.

            This is an expedited petition without a hearing, which is permitted under California Rules of Court, rule 7.950.5, so long as Petitioner Silana Gaspard (“Petitioner”) uses the required Judicial Council forms and meets certain conditions.  The settlement must not exceed $50,000.  The conditions are:

¿ Petitioner is represented by an attorney.

¿ The claim is not for wrongful death.

¿ Settlement proceeds will not be placed in a trust.

¿ There are no unresolved liens to be satisfied from the proceeds of the settlement.

¿ Petitioner’s attorney did not become involved at the request of Defendant or the insurance carrier

¿ Petitioner’s attorney is not employed by nor associated with a Defendant or insurance carrier in connect with the petition

¿ If an action is filed, all Defendants have appeared and are participating in the compromise OR the court has determined the settlement to be in good faith

¿ The settlement, exclusive of interests and costs, is $50,000 or less

¿ OR if greater than $50,000, the amount payable is the insurance policy limits AND all

proposed contributing parties would be substantially unable to use assets other than the insurance policy limits.

¿ AND the court does not otherwise order.

SETTLEMENT:  $40,000.00

INJURIES:  Death of father.

MEDICAL EXPENSES:  $0.00

COSTS:  $16,981.08

ATTORNEY’S FEES:  $16,000, which is 40% of the gross settlement.

BALANCE OF PROCEEDS: $7,018.92

DISCUSSION:

            Petitioner has incorrectly completed the petition for approval. In Section 11, Petitioner identifies that the settlement amount offered to Claimant is $50,000.00--this is directly contradicted in Section 12, which states that Claimant only is to receive $40,000.00. Additionally, Section 12 is for “Settlement payments to others,” and not Claimant.

Plaintiff’s counsel’s declaration does not justify his $16,000 request for fees.  The Court notes that Plaintiff and Plaintiff’s mother are netting only $8,018.92 out of a combined $50,000 settlement while Plaintiff’s counsel is requesting fees of $25,000.  Additionally, included in the $16,981.08 of expenses claimed, there is a $2,988.00 invoice from Esquiretek for TEK Unlimited Yearly without any explanation justifying it.  If Plaintiff insists on a 90% fee of Plaintiff’s mother’s settlement, upon reapplication, the Court will allow a $6,000 fee for Aryeh’s settlement, for a total of $15,000.

Based on the above, the Court denies the application.