Judge: Jill Feeney, Case: 20STCV08304, Date: 2022-10-12 Tentative Ruling
Case Number: 20STCV08304 Hearing Date: October 12, 2022 Dept: 30
Department 30, Spring Street Courthouse
October 12, 2022
20STCV08304
Petition to Approve Compromise of Pending Action of David J. Simmons, a person with a disability
DECISION
Claimant is listed as the Petitioner in this matter. Although Claimant is a person with a disability, the issue here is whether Petitioner has the capacity to make decisions.
Prob. Code, § 3603(b)(1), incorporates the definition of “disabled” as stated in 42 U.S.C.A. § 1382c. 42 U.S.C.A. § 1382c(A)(3)(a), defines “disabled” as:
(3)(A)¿Except as provided in subparagraph (C), an individual shall be considered to be disabled for purposes of this subchapter if he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.
“For purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. (42 U.S.C.A. § 1382c(a)(3)(D).)
As will be discussed below, Claimant still experiences the effects of major depression, PTSD, anxiety, and delusions according to his most recent medical-legal evaluation. (Attachment 8.) Thus, Claimant is a person with a disability. Despite his psychological impairments, Claimant is still capable of making decisions based upon the information set forth below.
Settlement
Claimant David J. Simmons $750,000
Injury
Claimant was riding his motorcycle when Defendant turned left directly into his path, colliding with Claimant. Claimant suffered permanent impairment with residual scarring and cognitive deficiencies. Specifically, Claimant suffered a traumatic brain injury, subdural hemorrhage, a concussion, spinal fractures, a fractured wrist, a tear to his superior glenoid labrum, a tendon injury, a ligament tear in his knee, fractured fingers, and subdural hygromas. The incident exacerbated Claimant’s PTSD, depression, and neurocognitive disorder. He continues to experience issues with concentration and memory, dizziness, and vertigo.
A Medical Report has been submitted.
Medical Expenses
Claimant’s medical expenses have been negotiated.
Department of veteran affairs $200,000
UCLA Health Systems $0
Good Samaritan Hospital $0
Providence Health & Services $0
Westmed dba McCormick Ambulance $0
Total $9,500
Plaintiff’s medical expenses were covered by the Department of Veteran Affairs (“VA”). The VA has agreed to accept $200,000 in reimbursement from the settlement funds.
Costs
Basic Retainer Cost Fee $495
Court Filing fee $466.05
Witness Statement $209
Canvass video services for investigation $366.91
Deposition of David J. Simmons $744.50
Deposition of Jeffrey Gonzales $479.90
Deposition of Jack Franklin Brogan $1057.15
Video Deposition of Jack Franklin Brogan $674.43
Deposition of Officer Edith $746.95
Officer Deposition Fee $275
Deposition of Bing Hsu $702.95
Video MP4 Bing Hsu Depo $135
Deposition of Steven A $367
Video of Depo – Steven A $840.55
Witness Statement – J. Gonzalez $602
Witness Statement – Weda $163.50
Service Fees $241.78
DMV Vehicle search $5
DMV registration search $5
Expert Witness Fees 8032.5
Mediation Fee $5200
Document retrieval $1632.7
Police reports and records $81.32
Jury and eFiling fees $161.39
Stip to continue trial and efiling $55.62
eFiling Fees $65.34
Medical records/Copying records $1038.88
Car rental $4921.15
Parking tickets $40
Rideshare $119.52
Mailing $17.08
Total $30,217.15
The costs are reasonable given the case.
Fees
Attorney’s fees $259,841.42
The retainer agreement and an attorney declaration have been submitted.
Counsel seeks attorney’s fees in the amount of $259,841.42 or about 34.6% of the gross settlement. Counsel submits a declaration in support of the request. Counsel states that she worked on a reduced contingency fee for the past four years. (West Decl., ¶1.) This was a complicated matter because Plaintiff suffered a traumatic brain injury that exacerbated pre-existing PTSD, depression, and anxiety, which required extensive review of pre-accident medical records, consultation with experts, and depositions of treating physicians. (Id., ¶3.) There was also an issue with professional responsibility because Counsel struggled to find a guardian ad litem for Plaintiff. (Id., ¶6.) The firm advanced all fees and costs. (Id., ¶13.) Given the complexity of the matter, the length of time Counsel spent on the matter, and the significant risk of financial loss to Counsel, the fees are reasonable.
Reimbursement
Medical expenses $9,500
Attorney’s fees $46,620
Total fees and costs $56,120
Total Settlement $140,000
Less costs $56,120
Net settlement $83,880
Petitioner intends to disburse fees to the VA and to Counsel in the amounts described above. The remaining funds will be delivered directly to Claimant.
At issue is whether the remaining settlement funds may be delivered directly to Claimant.
Prob. Code, § 3611(i), permits the Court to direct payment of the remaining balance of a compromise to” a person with a disability.” Prob. Code, § 3611(i), provides:
In any case described in Section 3610, the court making the order or giving the judgment referred to in Section 3600 shall, upon application of counsel for the minor or person with a disability, order any one or more of the following:
(i) That the remaining balance of the money and other property be paid or delivered to the person with a disability.
Here, Claimant’s counsel has applied for the remaining balance of the compromise money to be paid or delivered to the Claimant, a person with a disability.
Next, the Probate Code authorizes the Court to order payment of a balance of compromise funds to a “person with a disability” who has capacity to make decisions. Prob. Code, § 3613, provides:
Notwithstanding any other provision of this chapter, a court may not make an order or give a judgment pursuant to Section 3600, 3601, 3602, 3610, or 3611 with respect to an adult who has the capacity within the meaning of Section 812 to consent to the order and who has no conservator of the estate with authority to make that decision, without the express consent of that person.
Prob. Code, § 812, defines “capacity to make decisions” as follows:
Except where otherwise provided by law, including, but not limited to, Section 813 and the statutory and decisional law of testamentary capacity, a person lacks the capacity to make a decision unless the person has the ability to communicate verbally, or by any other means, the decision, and to understand and appreciate, to the extent relevant, all of the following:
(a) The rights, duties, and responsibilities created by, or affected by the decision.
(b) The probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision.
(c) The significant risks, benefits, and reasonable alternatives involved in the decision.
Here, Claimant’s most recent Medical-Legal Capacity Examination conducted by Dr. David W. Trader determined that Claimant “has sufficient cognitive capacity to understand and appreciate a settlement agreement.” (Attachment 8) Although the Los Angeles County Department of Mental Health previously determined Claimant was incompetent in October of 2020, Claimant’s condition has since improved and he is at this time demonstrating that he understands the legal situation involving the motorcycle accident and the settlement proposal. (Id.) Claimant lives independently, drives, and manages his own finances. (Id.) Claimant still has slight difficulty remembering things, suffers from delusions, and still suffers from major depression, anxiety, PTSD, and a delusional disorder. (Id.) Nevertheless, his “deficits in mood and his delusions do not impact” his ability to understand the settlement agreement. (Id.)
Based on Claimant’s most recent evaluation, Claimant is a person with a disability with the capacity to make decisions. Thus, the remaining settlement funds may be delivered directly to Claimant.
Thus, the petition is granted pending the appearance of Claimant and the Guardian Ad Litem at the hearing.
At the hearing, the Court will set an OSC Re: Proof of Receipt of Funds and Dismissal.
