Judge: Gregory Keosian, Case: 21STCV13568, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV13568    Hearing Date: March 1, 2023    Dept: 61

Plaintiff Karla Rivas’s Petition to Approve Minor’s Compromise of Claimant Dylan Rivas is DENIED pending submission of evidence of compliance with Probate Code § 3401.

Plaintiff to provide notice.

I.                PETITION FOR MINOR’S COMPROMISE

Minors or people without legal capacity to make decisions must appear in court by a guardian, conservator of the estate, or guardian ad litem. (Code Civ. Proc. § 372, subd. (a)(1).) Such person appearing in court on behalf of the minor or person without capacity has the power to compromise the claims of the represented person, “with the approval of the court.” (Ibid.) The requirement of court approval exists “to protect the best interests of the minor.” (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1338.)

“A petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor's disputed claim; a compromise or settlement of a pending action or proceeding to which a minor or person with a disability is a party; or the disposition of the proceeds of a judgment for a minor or person with a disability under Probate Code sections 3500 and 3600-3613 or Code of Civil Procedure section 372 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.” (CRC Rule 7.950.)

If an attorney assisted in the preparation of the petition, the petition must disclose: “(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.” (CRC Rule 7.951.)

The petitioner and claimant must attend the hearing on the petition unless the court for good cause orders otherwise. (CRC Rule 7.952, subd. (a).)

In all cases under Code of Civil Procedure section 372 or Probate Code sections 3600-3601, 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.

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 or person with a disability contemplated that the attorney's fee would be affected by later events.

(CRC Rule 7.955, subd. (a)(1)–(2).)

The settlement that petitioner Karla Rivas seeks to have approved in relation to minor claimant Dylan Rivas is as follows. A global settlement has been reached in the amount of $55,000 to be paid to Plaintiffs. Of this amount $17,500 is to be paid to Karla Rivas, Marlene Castellanos, and Jorge Hernandez, while $2,500 is to be paid to Dylan, the minor claimant. (Petition at p. 3.) The disparity in the amounts paid relates to the adult plaintiffs’ damages for rent abatement, property damages, and statutory damages related to the lease of the subject property. (Petition Att. 11b(6).) None of this amount is to go to medical expenses, and Dylan is to receive the $2,500.00 free of deductions for attorney fees, while the other plaintiffs are each to pay $7,000 in fees, a 40% contingency. (Petition at p. 7.)

Dylan’s proceeds are to be paid to Petitioner Karla Rivas under Probate Code §§ 3401–3402. (Petition at p. 8, Att. 18b5.) That statute provides as follows.

Where a minor does not have a guardian of the estate, money or other property belonging to the minor may be paid or delivered to a parent of the minor entitled to the custody of the minor to be held in trust for the minor until the minor reaches majority if the requirements of subdivision (c) are satisfied.

. . .

(c) This section applies only if both of the following requirements are satisfied:

(1) The total estate of the minor, including the money and other property to be paid or delivered to the parent, does not exceed five thousand dollars ($5,000) in value.

(2) The parent to whom the money or other property is to be paid or delivered gives the person making the payment or delivery written assurance, verified by the oath of such parent, that the total estate of the minor, including the money or other property to be paid or delivered to the parent, does not exceed five thousand dollars ($5,000) in value.

(Code Civ. Proc. § 3401, subd. (a), (c).)

Here, although the petitions seek to apportion the funds under the above statute, the petition does not include “written assurance, verified by the oath of such parent, that the total estate of the minor, including the money or other property to be paid or delivered to the parent, does not exceed five thousand dollars . . . in value,” or a statement that such assurance has been given to Defendants.

Accordingly the petition is DENIED pending submission of evidence of compliance with Probate Code § 3401.

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