Judge Katherine Chilton, Case 20STLC03469 2023-04-19 Tentative Ruling

Judge: Katherine Chilton, Case: 20STLC03469, Date: 2023-04-19 Tentative Ruling

Case Number: 20STLC03469 Hearing Date: April 19, 2023 Dept: 25

PROCEEDINGS: EXPEDITED PETITION FOR MINOR’S COMPROMISE

MOVING PARTY: Petitioner Irma Sepulveda on behalf of Minor Claimant Joseph Alarcon

RESP. PARTY: None

EXPEDITED PETITION FOR APPROVAL OF

MINOR’S COMPROMISE OF A DISPUTED CLAIM

(CCP § 372, CRC, rules 7.950, 7.950.5)

TENTATIVE RULING:

The hearing on the Petition filed on behalf of minor Claimant Joseph Alarcon is CONTINUED to MAY 22, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Petitioner is ordered to file supplemental papers addressing the deficiencies noted herein at least 16 court days before the scheduled hearing. Failure to do so may result in the hearing being placed off calendar or denied.

SERVICE:

[X] Proof of Service Timely Filed (CRC, rule 3.1300) OK

[X] Correct Address (CCP §§ 1013, 1013a) OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) OK

OPPOSITION: None filed as of April 16, 2023. [ ] Late [X] None

REPLY: None filed as of April 16, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On April 17, 2020, Plaintiffs Irma Sepulveda (“Sepulveda”) and minor Plaintiff Joseph Alarcon (“Claimant” or “Alarcon”) filed an action against Defendants Andres Rodriguez (“Rodriguez”) and Yong Chun Ye (“Ye”), (collectively “Defendant”) arising out of a motor vehicle accident on April 23, 2018. Plaintiffs filed a First Amended Complaint (“FAC”) on May 29, 2020. Plaintiff Sepulveda was appointed Claimant Alarcon’s guardian ad litem on June 2, 2020.

On September 22, 2021, Petitioner Sepulveda (“Petitioner”) filed an Expedited Petition to Approve Compromise of Disputed Claim on behalf of minor Claimant Alarcon. On October 13, 2021, pursuant to Sepulveda’s request, the Court dismissed her with prejudice. (10-12-21 Request for Dismissal.) On October 14, 2021, the Court noted several deficiencies in the Expedited Petition and set a hearing for November 15, 2021. (10-14-21 Minute Order.) The Court ordered Petitioner to file and serve supplemental papers addressing the noted errors at least 16 court days before the scheduled hearing and warned that failure to do so could result in the Petition being placed off calendar or denied. (Ibid.) On November 12, 2021, the Friday before the continued Monday, November 15 hearing, Petitioner filed an amended petition. The Court, however, was unaware an amended petition had been filed and Petitioner did not appear at the hearing to alert the Court it had been filed. (11-15-21 Minute Order.) As a result, the Court placed the matter off calendar. (Ibid.)

On December 28, 2021, Petitioner filed another Expedited Petition to Approve Compromise of Disputed Claim on behalf of minor Claimant Alarcon. On January 20, 2022, the Court noted deficiencies in the Petition and set a hearing for January 31, 2022. (1-20-22 Minute Order.) On January 31, 2022, the Court continued the hearing on the Petition given that Petitioner had filed an amended petition on the day of the hearing. (1-31-22 Minute Order.) On February 3, 2022, the Court noted that Petitioner had failed to correct several deficiencies and denied the Petition without prejudice. (2-3-23 Minute Order.)

On April 7, 2022, Petitioner filed another Expedited Petition to Approve Compromise of Disputed Claim on behalf of minor Claimant Alarcon. On April 26, 2022, the Court noted that the Petition still contained several deficiencies and set a hearing for June 1, 2022. (4-26-22 Minute Order.) On June 1, 2022, the Court noted that Petitioner had not filed any supplemental papers correcting the deficiencies and placed the Petition off calendar. (6-1-22 Minute Order.)

On December 13, 2022, Petitioner filed the instant Expedited Petition to Approve Compromise of Disputed Claim on behalf of minor Claimant Joseph Alarcon (“Petition”). On March 15, 2023, the Court noted that the Petition contained several deficiencies and set a hearing for April 19, 2023. (3-15-23 Minute Order.)

On March 23, 2023, Petitioner filed an Amended Petition.

No opposition has been filed.

II. Legal Standard

Court approval is required for all settlements of a minor’s claim. (Prob. Code §§ 3500, 3600, et seq.; CCP § 372.) “‘[W]ithout trial court approval of the proposed compromise of the ward’s claim, the settlement cannot be valid. [Citation.] [¶] Nor is the settlement binding [on the minor] until it is endorsed by the trial court.’” (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1338.) A minor, like Claimant, “shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” (Code Civ. Proc., § 372(a)(1).) Alternatively, the petitioner may file a declaration demonstrating that he or she has a right to compromise the minor’s claim under Cal. Probate Code section 3500.

Regarding the substance of the Petition, to obtain court approval of the settlement of a minor’s claims, the petitioner must file a complete and “verified petition for approval of the settlement and must disclose ‘all information that has any bearing upon the reasonableness of the compromise.’ [Citations.]” (Barnes v. Western Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256; Cal. Rules of Court, rule 7.950.) (Italics added.)

Under Probate Code § 3505, if a petition is unopposed, the Court must issue a decision on the petition at the conclusion of the hearing.

III. Discussion

Under California Rules of Court, rule 7.950.5, an expedited petition for minor’s compromise without a scheduled hearing is permitted as long as Petitioner uses the required Judicial Council forms and meets certain conditions. The conditions are:

(1) Petitioner is represented by an attorney authorized to practice in the courts of this state;

(2) The claim is not for wrongful death;

(3) Settlement proceeds will not be placed in a trust;

(4) There are no unresolved liens to be satisfied from the proceeds of the compromise;

(5) Petitioner's attorney did not become involved at the request of Defendant or insurance carrier connected with the Petition;

(6) Petitioner's attorney is not employed by nor associated with a Defendant or insurance carrier in connection with the Petition;

(7) If an action has been filed on the claim, (A) all Defendants have appeared and are participating in the compromise OR (B) the Court has determined the settlement to be in good faith.

(8) The settlement, exclusive of interests and costs, is $50,000 or less OR (A) the amount payable is the insurance policy limits AND (B) all proposed contributing parties would be substantially unable to use assets other than the insurance policy limits.

(9) The court does not otherwise order.

On March 15, 2023, the Court reviewed the Expedited Petition and noted the following deficiencies:

1. The amount listed in MC-350EX ¶ 16 is incorrect as it is inconsistent with Petitioner’s calculation in ¶ 17.

2. Petitioner has not served Defendant Yong Chun Ye.

3. For an Expedited Petition to be approved, California Rules of Court, rule 7.950.5 requires all Defendants to appear in the case, participate in the compromise, or for the Court to determine that the settlement is in good faith. The Petition does not indicate that Defendant Ye has participated in the compromise. Thus, Petitioner must provide more information about Defendant Ye’s participation or dismiss Defendant Ye from the action.

4. Petitioner has incorrectly checked the box for parent on MC-351 ¶ 2 and MC-355 ¶ 3 even though the Application for Guardian Ad Litem, filed on June 2, 2020, indicates that Irma Sepulveda is minor Claimant’s grandmother.

5. There appears to be a typographical error in the amount of medical expenses listed on Form MC-351 ¶ 8a(3).

6. Petitioner indicates that Defendant Rodriguez will have to pay Irma Sepulveda $20,000 under the proposed settlement. (Pet. ¶ 12.) However, the Court dismissed Sepulveda based on Plaintiff’s request on October 12, 2021. The Court requests further information.

(3-15-23 Minute Order.)

On March 23, 2023, Petitioner filed an Amended Expedited Petition, setting forth the following information.

Minor – Joseph Alarcon, 15 years old

Guardian Ad Litem – Irma Sepulveda

Defendants – Andres Rodriguez

Settlement: $6,000.00

Attorney’s Fees: $1,500.00

Litigation Costs: $0

Medical Bills: $981.42

TOTAL TO BE PAID TO MINOR: $3,518.58

Petitioner’s Counsel explains that he negotiated a settlement on behalf of Irma Sepulveda in the amount of $20,000. (Am. Pet. - Attach. 18a, pp. 55-56, ¶ 5.) The settlement funds were paid to Sepulveda and her action was dismissed. (Ibid. at ¶ 6.) Minor Claimant’s settlement is not affected by the settlement on behalf of Sepulveda. (Ibid. at ¶ 8.)

General Requirements

· Petition on Form MC-350EX? YES

· Proposed Order on Form MC-351? NOT UPDATED

· Proof of service on other parties? YES.

Petitioner’s counsel indicates that the summons and complaint were never served in the case because the case settled prior to the necessity of service. (Am. Pet. p. 51 – Ryan Decl. ¶ 6.)

Type of injury, medical expenses

Minor Claimant Joseph Alarcon sustained “soft tissue injuries to the neck and shoulder.” (Am. Pet. ¶ 7.) “Minor was transported via ambulance to Citrus Valley Health Partners where he was treated and released. Subsequently, he sought treatment at the offices of Western United Medical Care.” (Ibid. at ¶ 8.)

· Medical records documenting injuries and treatment? Yes. (Am. Pet. pp. 8-34.)

· Negotiated reduction in medical liens? Yes. (Am. Pet. ¶ 13a; Am. Pet. pp. 12-13; Attach. 13a – p. 35-48.)

· Injuries completely healed? Yes, Claimant “has recovered completely from the effects of the injuries described in item 7, and there are no permanent injuries.” (Ibid. at ¶ 9.) Petitioner has submitted a letter from Isaac Schmidt, M.D. indicating that as of October 26, 2021, “there is no further need for medical care.” (Am. Pet. pp. 10-11 – Attach. 9.)

Handling of Funds

How are settlement funds to be disposed of? “There is no guardianship of the estate of the minor…Petitioner requests that the balance of…$3,468.58 of money be deposited in insured accounts in one or more financial institutions in this state, subject to withdrawal only on authorization of the court. The name, branch, and address of each depository are specified in Attachment 19(2).” (Am. Pet. ¶ 19b(2); Am. Pet. pp. 58-59 - Attachment 19b(2).)

Attorneys’ Fees and Litigation Costs

· Attorneys’ fees requested? Yes . (Am. Pet. ¶ 14; Am. Pet. pp. 49-51 – Attach. 14a – Ryan Decl.)

· If yes, attorney declaration including factors under CRC 7.955(b)? Yes. (Am. Pet. ¶ 14; Am. Pet. pp. 49-51 – Attach. 14a – Ryan Decl.)

· Copy of retainer agreement? Yes. (Am. Pet. pp. 52-54.)

· Litigation costs requested? No.

o Itemized? N/A

Having reviewed the instant Petition, the Court finds the following deficiencies.

1. Petitioner has submitted evidence of a negotiated reduction in medical expenses to be paid to Western United MedCare, indicating an agreement to pay $550 for minor Claimant’s treatment. (Am. Pet. p. 48.) However, throughout the rest of the Petition, Petitioner indicates the amount to be paid to Western United Med Care if $589.00. (Am. Pet. ¶ 13a(4); 13f(2); Attach. 13a – Am. Pet. pp. 35-36.) The Court requests a correction of the amount or an explanation of the inconsistency.

2. Petitioner has not updated Forms MC-351 and MC-355 with the hearing dates.

3. Petitioner has incorrectly checked the box for parent on MC-351 ¶ 2 and MC-355 ¶ 3 even though the Application for Guardian Ad Litem, filed on June 2, 2020, indicates that Irma Sepulveda is minor Claimant’s grandmother.

4. The amount of medical expenses listed on Form MC-351 ¶ 8a(3) is inconsistent with the amount listed on Form MC-350EX.

For the reasons stated above,

Petitioner is ordered to give notice.