Judge: Joseph Lipner, Case: 24STCV05109, Date: 2024-08-22 Tentative Ruling
Case Number: 24STCV05109 Hearing Date: August 22, 2024 Dept: 72
SUPERIOR COURT OF CALIFORNIA
COUNTY OF LOS ANGELES
DEPARTMENT 72
TENTATIVE
RULING
|
MIA KUSHNER, BY AND THROUGH HER
GUARDIAN AD LITEM JOSHUA KUSHNER, Plaintiff, v. BLUE CROSS OF CALIFORNIA, Defendant. |
Case No:
24STCV05109 Hearing Date: August 22, 2024 Calendar Number: 7 |
Plaintiff Mia Kushner, by and through her guardian ad litem
Joshua Kushner (“Plaintiff”) petitions for the approval compromise of
Plaintiff’s claim against Defendant Blue Cross of California (“Defendant”).
Plaintiff and Defendant jointly move to seal Plaintiff’s
medical and related information, and the financial information relating to the
confidential settlement agreement (the “Settlement”) between the parties,
contained in (1) Plaintiff’s Petition For Approval of Compromise of Claim or
Action For Minor, (2) Plaintiff’s proposed Order Approving Compromise of
Pending Action, and (3) Plaintiff’s proposed Order to Deposit Money into
Blocked Account (collectively, the “Petition”).
The Court GRANTS the motion to seal. The parties will need
to discuss the logistics of the sealing at the hearing.
The Court GRANTS the motion to approve the compromise of
Plaintiff’s claims.
The Court APPROVES the withdrawal of settlement funds from
the blocked account for the purpose of Plaintiff’s medical care as specified in
the Declaration of Joshua Kushner ¶ 12.
This is an insurance case. The following facts are taken
from the declarations of Joshua Kushner and Robert Gianelli.
Plaintiff is covered under a Medi-Cal health plan issued by
Defendant. Under this plan, Defendant authorized Plaintiff’s physician group to
determine if Plaintiff needed specialized medical services. Plaintiff’s
physician group authorized certain specialized care, which was covered under
Plaintiff’s plan.
Beginning in May 2023, Defendant covered medical services
needed by Plaintiff. In October 2023, Defendant stopped paying for Plaintiff’s
treatment. As a result, Plaintiff was unable to receive the level of treatment
that she needed. Plaintiff’s specialized care provider eventually ceased
treatment as a result, resulting in medical problems for Plaintiff.
Plaintiff filed this action on February 29, 2024, by and
through her father and guardian ad litem, Joshua Kushner. Plaintiff raised
claims for (1) breach of contract; and (2) breach of the implied covenant of
good faith and fair dealing.
In March 2024, Defendant resumed payment for the relevant
treatments. Plaintiff’s condition has significantly improved since that time.
Plaintiff filed a Notice of Settlement on June 10, 2024.
On August 5, 2024, Plaintiff moved for approval of the
compromise of her claims.
On August 6, 2024, the parties jointly filed the motion to
seal.
No party opposes either motion.
“The court may order that a record be filed under seal only if
it expressly finds facts that establish:
(1) There exists an
overriding interest that overcomes the right of public access to the record;
(2)
The overriding interest supports sealing the record;
(3) A substantial
probability exists that the overriding interest will be prejudiced if the
record is not sealed;
(4)
The proposed sealing is narrowly tailored; and
(5)
No less restrictive means exist to achieve the overriding interest.”
(California Rules
of Court, rule 2.550(d).)
“An
order sealing the record must:
(A) Specifically state the facts that support the
findings; and
(B) Direct the sealing
of only those documents and pages, or, if reasonably practicable, portions of
those documents and pages, that contain the material that needs to be placed
under seal. All other portions of each document or page must be included in the
public file.”
(California Rules
of Court, rule 2.550(e)(1).)
“(1) If the court
grants an order sealing a record and if the sealed record is in paper format,
the clerk must substitute on the envelope or container for the label required
by (d)(2) a label prominently stating "SEALED BY ORDER OF THE COURT ON
(DATE)," and must replace the cover sheet required by (d)(3) with a
filed-endorsed copy of the court's order. If the sealed record is in electronic
form, the clerk must file the court's order, maintain the record ordered sealed
in a secure manner, and clearly identify the record as sealed by court order on
a specified date.
(2) The order must
state whether-in addition to the sealed records-the order itself, the register
of actions, any other court records, or any other records relating to the case
are to be sealed.
(3) The order must
state whether any person other than the court is authorized to inspect the
sealed record.
(4) Unless the sealing
order provides otherwise, it prohibits the parties from disclosing the contents
of any materials that have been sealed in anything that is subsequently
publicly filed.”
(California Rules
of Court, rule 2.551(e).)
Pursuant to California Code of Civil Procedure section 372,
any settlement of a claim made by a minor or adult with a disability must be
approved by the court. If the court is satisfied that the settlement is in
the best interest of the claimant, then the court shall approve the
settlement. (See Pearson v. Superior Court (2012) 202 Cal.App.4th
1333, 1338.)
A petition for court approval of a compromise or covenant
not to sue under Code of Civil Procedure section 372 must comply with
California Rules of Court, Rules 7.950, 7.951, and 7.952. The petition must be
verified by the petitioner and contain a full disclosure of all information
that has “any bearing upon the reasonableness” of the compromise or the
covenant. (Cal. Rules of Court, Rule 7.950.) The person compromising
the claim on behalf of the minor or person who lacks capacity, and the
represented person, must attend the hearing on compromise of the claim unless
the court for good cause dispenses with their personal appearance. (Cal. Rules
of Court, Rule 7.952.)
The parties move to seal Plaintiff’s medical information in
the Petition.
“The disclosure of […] sensitive medical information is at
the core of the protected informational privacy interest.” (Ruiz v. Podolsky
(2010) 50 Cal.4th 838, 851.)
The Court finds that there is therefore an overriding
interest that overcomes the public right of access to the record and supports
sealing the record. The Court finds that Plaintiff’s privacy interest in her
medical records will be prejudiced if the records are not sealed. The Court
finds that the parties’ proposed seal is narrowly tailored and that no less
restrictive means exist to achieve the overriding interest.
The Court therefore grants the motion to seal Plaintiff’s
medical information.
The parties move to seal the financial terms of the
Settlement.
The Settlement contains a confidentiality provision where
the parties agree to keep the settlement amount confidential. (Barrera Decl. ¶
2.)
“[A] binding contractual agreement not to disclose” can give
rise to an overriding interest. (Huffy Corp. v. Superior Court (2003)
112 Cal.App.4th 97, 107, abrogated on other grounds as recognized in Curtis
v. Superior Court (2021) 62 Cal.App.5th 453, 471.) The Court finds that
such an interest arises here, under the facts of this case, and that it
supports sealing the record.
The Court finds that the seal proposed by the parties is
narrowly tailored and that no less restrictive means exist.
The Court therefore grants the motion to seal the
Settlement’s financial information.
Kushner has properly verified the Petition.
The Court has evaluated the settlement amount and finds that
it is reasonable. Joshua Kushner declares that he believes the settlement
amount is fair and reasonable, and will fairly compensate Plaintiff for her
damages. (Kushner Decl. ¶ 13.) Kushner made a careful investigation regarding
the nature and extent of Plaintiff’s injuries. (Kushner Decl. ¶ 13.) It is
Kushner’s opinion that the settlement is in Plaintiff’s best interests.
(Kushner Decl. ¶ 13.)
The Petition provides that $742.11 in costs will be paid out
of the settlement amount. The Court finds that this amount is reasonable.
Plaintiff’s fee agreement with her counsel provides for an
attorney fee of 25 percent of the gross recovery. (Gianelli Decl. ¶ 7, Ex. 1.) The
Court finds that this fee is reasonable. Plaintiff’s counsel obtained a
substantial settlement amount in just six months after filing the case. The
experience of Plaintiff’s counsel further supports a finding of reasonability.
(Gianelli Decl. ¶ 12(c).)
The Settlement will be transferred into a blocked account
for Plaintiff’s benefit. Kushner requests that the Court authorize disbursement
of funds from the blocked account for Plaintiff’s care. The Court approves this
request.
The Court therefore finds that the Settlement is in
Plaintiff’s best interests and grants the motion for approval of the
Settlement.