Judge Edward B. Moreton, Jr., Case Number: 20STCV21828, Date: 2024-04-30 Tentative Ruling

Judge: Edward B. Moreton, Jr., Case: 20STCV21828, Date: 2024-04-30 Tentative Ruling

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

This case arises from a vehicle vs. pedestrian accident. On October 11, 2013, Claimant/Plaintiff Devon Beal, a student at Canyon Elementary School, was walking home from school when she was struck in a cross-walk by Defendant Melissa Smith. (Compl. ¶ 12.) At the time of the accident, Smith was working for Defendant Ceci Clarke, Inc., a construction company. (Id. ¶ 11.) Beal was walking with her friend, co-plaintiff Cassandra Port and Port’s mother, co-plaintiff Pheng Port, both of whom were also struck.

Plaintiffs allege Smith failed to stop and yield to pedestrians and otherwise failed to keep proper attention. (Compl. ¶14.) Plaintiffs also sued the Los Angeles Unified School District (“LAUSD”), the City of Los Angeles, the County of Los Angeles, and the State of California for failure to provide a crossing guard, insufficient signage, failure to install a traffic signal, and failure to install school zone signs. (Id. ¶ 18.)

Claimant sustained injuries to her right elbow. She received emergency room treatment. She has since recovered, and she has no permanent injuries. (Petition at Section 8(a).)

The operative complaint alleges two claims for (1) negligence including motor vehicle/bystander liability and (2) government tort liability.

This hearing is on a petition to approve minor’s compromise brought by Claimant’s father, Carter Beal. Defendants Smith and Ceci Clarke, Inc., through their insurance carrier, agreed to pay $120,000 to Claimant. And Defendant City offered Claimant $5,000 to settle.

The settlement is being apportioned as follows: 33% of the settlement (or $51,666.67) is allocated for attorneys’ fees; 2.6% of the settlement (or $3,856.50) for legal expenses; 2.3% of the settlement (or $2,920.28) is for medical expenses; and the remaining $76,556.55 will either be deposited into an insured account in one or more financial institutions ($6,556.55) or be invested in an annuity for the benefit of Claimant ($70,000), both subject to withdrawal only on authorization of the Court.

All procedural requirements have been met, as Petitioner has completed a Judicial Council Form MC-351 on the minor’s behalf. There is no opposition to the petition.

Compromises of disputed claims brought by minors are governed in part by Code of Civil Procedure § 372. The statute allows guardians ad litem to appear in court on behalf of minor claimants and gives the guardian ad litem the power to compromise minors’ claims “with the approval of the court in which the action or proceeding is pending.”

A petition for court approval of a compromise must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise or covenant. (Cal. Rules of Court, rule 7.950.) California Rules of Court rule 7.952(a) requires the attendance of the petitioner and claimant at the hearing on the compromise of the claim unless the Court for good causes dispenses with their personal appearance.

“Neither section 372 nor the California Rules of Court (rules 7.950 & 7.952) contemplates a noticed motion and adversary hearing when court approval of a minor’s compromise is sought ... [A] petition to approve or disapprove a minor’s compromise may be decided by the superior court, ex parte, in chambers.” (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.)

California Rules of Court, rule 7.955(a), requires the Court to use “a reasonable fee standard” when approving and allowing the amount of attorneys’ fees payable from money to be paid for the benefit of the minor and requires that the Court “give consideration to the terms of any representation agreement made between the attorney and the representative of the minor . . . and 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.”

California Rules of Court, rule 7.955(b), sets forth fourteen nonexclusive factors the Court may consider in determining a reasonable attorney’s fee. California Rules of Court, rule 7.955(c), requires that a petition requesting Court approval and allowance of an attorney’s fee under rule 7.955(a) must include a declaration from the attorney that addresses the factors listed in rule 7.955(b) that are applicable to the matter before the Court.

Petitioner seeks court approval for a settlement under which the minor claimant will receive $76,556.55. This amount is after deduction of attorneys’ fees for $41,666.67, legal expenses of 3,856.50, and medical expenses of $2,920.28.

The amount of medical expenses is not supported by any medical bills. But the amount is verified by Petitioner. The expenses are to be paid to Ronald Reagan UCLA Medical Center ($2,196.64), Orthopaedic Institute for Children ($308) and UCLA Health Physician Services ($80.64).

As to the amount of attorneys’ fees, the Declaration of Michael Schwimer provides sufficient support for the reasonableness of the fees. First, the fees are pursuant to a contingency fee agreement for 1/3 of any recoveries. (Attachment 17(a) to Petition.) The fee allocation reflects the risk that counsel would receive no compensation and a total loss of all expenditures if the case did not result in an award for Claimant. That fee allocation also reflects that counsel would delay taking payment until the matter was favorably resolved. Counsel advanced litigation costs of $4,000, and if the case had gone to trial, he would have had to advance $100,000 in costs. He took the case in February 2020, and his fees will not be paid until after the minor’s compromise is approved and Defendants issue the check. (Schwimer Decl. ¶¶5, 8-9.)

Second, the value of counsel’s services is proportionate to the amount of fees sought. Counsel expended significant time researching legal issues, preparing and responding to discovery, evaluating settlement options, and preparing the minor’s compromise petition. (Id. ¶10.) His representation of Claimant spanned nearly four years.

Third, the issues involved while not novel or difficult, still required skill to handle properly.

Fourth, counsel’s acceptance of the matter precluded other employment. There are only so many cases like the present case that counsel can handle.

Fifth, Claimant’s recovery was fair and reasonable. Claimant recovered $125,000, and her injuries were relatively minor and not permanent.

Sixth, counsel has experience litigating similar cases. He has been in practice since 2008, and specializes in civil litigation. (Id. ¶ 18.)

On these facts, the Court concludes the settlement and its apportionment is fair and reasonable and grants the petition to approve minor’s compromise.

Based on the foregoing, the Court GRANTS the petition to approve minor’s compromise.

Superior Court of California

County of Los Angeles – West District

Beverly Hills Courthouse / Department 205

PHENG PORT, et al.,

Plaintiffs,

MELISSA LOUISE SMITH, et al.,

Defendants.

Case No.: 20STCV21828

Hearing Date: April 30, 2024

[TENTATIVE] ORDER RE:

PETITION TO APPROVE MINOR’S

COMPROMISE

This case arises from a vehicle vs. pedestrian accident. On October 11, 2013, Claimant/Plaintiff Cassandra Port, a student at Canyon Elementary School, was walking home from school when she was struck in a cross-walk by Defendant Melissa Smith. (Compl. ¶ 12.) At the time of the accident, Smith was working for Defendant Ceci Clarke, Inc., a construction company. (Id.) Port’s mother, co-plaintiff Pheng Port, and her friend, co-plaintiff Devon Beal were also struck by Smith. (Id.)

Plaintiffs allege Smith failed to stop and yield to pedestrians and otherwise failed to keep proper attention. (Compl. ¶15.) Plaintiffs also sued the Los Angeles Unified School District (“LAUSD”), the City of Los Angeles, the County of Los Angeles, and the State of California for failure to provide a crossing guard, insufficient signage, failure to install a traffic signal, and failure to install school zone signs. (Id. ¶¶ 21, 22.)

Claimant sustained injuries to the face and legs, pelvic pain, left knee pain and emotional distress. She received emergency room treatment. She has since recovered, and she has no permanent injuries. (Petition at Section 8(a).)

The operative complaint alleges two claims for (1) negligence including motor vehicle/bystander liability and (2) government tort liability.

This hearing is on a petition to approve minor’s compromise brought by Claimant’s father, Jonathan Port. Defendants Smith and Ceci Clarke, Inc., through their insurance carrier, agreed to pay $150,000 to Claimant. And Defendant City offered Claimant $5,000 to settle. The settlement is being apportioned as follows: 33% of the settlement (or $51,666.67) is allocated for attorneys’ fees; 8.5% of the settlement (or $13,270.53) is for medical expenses; and the remaining $90,062.70 will either be deposited into an insured account in one or more financial institutions ($3,333.33) or be invested in an annuity for the benefit of Claimant ($86,729.37), both subject to withdrawal only on authorization of the Court. All procedural requirements have been met, as Petitioner has completed a Judicial Council Form MC-351 on the minor’s behalf.¿¿There is no opposition to the petition. ¿

Compromises of disputed claims brought by minors are governed in part by Code of Civil Procedure § 372.¿ The statute allows guardians ad litem to appear in court on behalf of minor claimants and gives the guardian ad litem the power to compromise minors’ claims “with the approval of the court in which the action or proceeding is pending.”¿

A petition for court approval of a compromise must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise or covenant.¿ (Cal. Rules of Court, rule 7.950.)¿ California Rules of Court rule 7.952(a) requires the attendance of the petitioner and claimant at the hearing on the compromise of the claim unless the Court for good causes dispenses with their personal appearance.¿

“Neither section 372 nor the California Rules of Court (rules 7.950 & 7.952) contemplates a noticed motion and adversary hearing when court approval of a minor’s compromise is sought ... [A] petition to approve or disapprove a minor’s compromise may be decided by the superior court, ex parte, in chambers.”¿ (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.)¿¿¿

California Rules of Court, rule 7.955(b), sets forth fourteen nonexclusive factors the Court may consider in determining a reasonable attorney’s fee.¿ California Rules of Court, rule 7.955(c), requires that a petition requesting Court approval and allowance of an attorney’s fee under rule 7.955(a) must include a declaration from the attorney that addresses the factors listed in rule 7.955(b) that are applicable to the matter before the Court.¿¿

Petitioner seeks court approval for a settlement under which the minor claimant will receive $90,062.70.¿ This amount is after deduction of attorneys’ fees for $51,666.67 and medical expenses of $13,270.53.

The amount of medical expenses is not supported by any medical bills. But the amount is verified by Petitioner. The expenses are to be paid to Ronald Reagan UCLA Medical Center ($5,520) and The Rawlings Company (for Aetna) ($7,750.63).

As to the amount of attorneys’ fees, the Declaration of Otto Haselhoff provides sufficient support for the reasonableness of the fees.¿ First, the fees are pursuant to a contingency fee agreement for 40% of any recoveries. (Ex. E to Petition.) Counsel, however, has agreed to charge less (33%), given Claimant is a minor. The fee allocation reflects the risk that counsel would receive no compensation and a total loss of all expenditures if the case did not result in an award for Claimant. That fee allocation also reflects that counsel would delay taking payment until the matter was favorably resolved. Counsel advanced litigation costs which he is not seeking against the Claimant. He took the case in November 2019, and his fees will not be paid until after the minor’s compromise is approved and Defendants issue the check. (Haselhoff Decl. ¶¶8, 9.)

Second, the value of counsel’s services is proportionate to the amount of fees sought. Counsel expended significant time researching legal issues; consulting with investigators; performing accident reconstruction analysis and photo evidence analysis; traveling to the scene; obtaining and evaluating medical and government records; preparing multiple letters to insurance companies and/or defense counsel with follow up telephone calls and emails; propounding and responding to detailed discovery; opposing demurrers and motions to strike; opposing a motion for leave to amend cross-complaint; attending a full day mediation and follow up; evaluating structured settlement options, and preparing the minor’s compromise petition. (Id. ¶6.)

Third, the issues involved while not novel or difficult, still required skill to handle properly. Counsel successfully defeated demurrers and motions to strike. (Id.)

Fourth, counsel’s acceptance of the matter precluded other employment. There are only so many cases like the present case that counsel can handle, particularly since he is a solo practitioner. (Id. ¶10.)

Fifth, Claimant’s recovery was fair and reasonable. Claimant recovered $155,000, and her injuries were relatively minor and not permanent. Claimant’s mother is recovering a far greater amount ($305,000), and there is no explanation for the disparity. But given Claimant’s non-permanent injuries, the settlement still appears fair and reasonable.

Sixth, counsel has experience litigating similar cases. He has been in practice for over 30 years. He specializes in personal injury cases and often takes on the challenge of going against large insurance companies. He has recovered well over $100 million in verdicts and settlements over the past 10 years alone. He received the Super Lawyer Designation from 2007-2024, and was a finalist for CAALA’s prestigious Trial Lawyer of the Year in 2010. (Id. ¶ 6.)