Judge Katherine Chilton, Case 21STLC08736 2023-02-15 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC08736, Date: 2023-02-15 Tentative Ruling

Case Number: 21STLC08736 Hearing Date: February 15, 2023 Dept: 25

PROCEEDINGS: EXPEDITED PETITIONS FOR MINOR’S COMPROMISE

MOVING PARTY: Petitioner Jorge Cabrera, on behalf of minor Claimants Bianca Cabrera and Oscar Cabrera

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 Bianca Cabrera is CONTINUED to MARCH 15, 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.

The hearing on the Petition filed on behalf of minor Claimant Oscar Cabrera is CONTINUED to MARCH 15, 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) NONE

[X] Correct Address (CCP §§ 1013, 1013a) NONE

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b)) NONE

OPPOSITION: None filed as of February 8, 2023. [ ] Late [X] None

REPLY: None filed as of February 8, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On December 10, 2021, Plaintiffs Maria Espino (“Espino”) and Jorge Cabrera, on behalf of minor Bianca Cabrera (“Bianca”), (collectively “Plaintiffs”), filed an action against Defendant Onofre Roman (“Roman” or “Defendant”) for motor vehicle and general negligence arising out of an alleged automobile accident that took place on January 5, 2020. Jorge Cabrera (“Jorge”) was appointed as guardian ad litem for minor Plaintiff Bianca on December 14, 2021. (12-14-21 Application and Order.)

On July 27, 2022, Plaintiffs filed the First Amended Complaint (“FAC”) and added minor Oscar Cabrera (“Oscar”) as a minor Plaintiff. On August 17, 2022, Jorge Cabrera was appointed as guardian ad litem for minor Plaintiff Oscar. (8-17-22 Application and Order.)

On September 26, 2022, Jorge Cabrera (“Petitioner”) filed the instant Expedited Petitions for Minor’s Compromise on behalf of minor Claimants Bianca and Oscar Cabrera. No opposition was filed.

On December 2, 2022, the Court noted several deficiencies in the Expedited Petitions and set a hearing on the Petitions for January 5, 2023. (12-2-22 Minute Order.) On December 28, 2022, at the request of Petitioner’s counsel, the Court continued the hearing on the Petitions to February 15, 2023. (12-28-22 Minute Order.)

On January 9, 2023, Petitioner filed Proof of Service of First Amended Complaint on Defendant by Substitute Service, along with a Declaration of Due Diligence.

On January 13, 2023, Petitioner filed amended Expedited Petitions for Minor’s Compromise on behalf of minor Claimants Bianca and Oscar Cabrera. 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 § 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 & Conclusion

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.

A. Minor Claimant Bianca Cabrera

Minor – Bianca Cabrera, 14 years old

Guardian Ad Litem – Jorge Cabrera

Defendants – Onofre Roman

Settlement: $15,000.01

Attorney’s Fees: $3,750.00

Litigation Costs: $255.65

Medical Bills: $5,750.00

TOTAL TO BE PAID TO MINOR: $5,244.36

General Requirements

· Petition on Form MC-350EX? YES

· Proposed Order on Form MC-351? YES

· Proof of service on other parties? NONE.

Type of injury, medical expenses

Minor Claimant Bianca suffered “shoulder, back, neck, left elbow, right wrist” injuries. (MC-350EX ¶ 7.) She has received chiropractic and orthopedic care. (Ibid. at ¶ 8.) Petitioner indicates that “claimant has not recovered completely” from temporary injuries. (Ibid. at ¶ 9.) Medical records indicate that “she would need some future treatment for flare ups” including “conservative treatment in the future for a period of five years.” (MC-350EX pp. 36-38.) Guardian ad litem and minor Claimant indicate that “minor has no current complaints and feels fully recovered thereby not necessitating any future care.” (MC-350EX p. 44, Attach. 9b.)

· Medical records documenting injuries and treatment? Yes. (MC-350EX pp. 11-44.)

· Negotiated reduction in medical liens? Yes. (MC-350EX ¶ 13; Attach. 13(a).)

· Injuries completely healed? Petitioner indicates that minor Bianca has not completely recovered and still has remaining temporary injuries. (MC-350EX ¶ 9.) Medical records indicate that “she would need some future treatment for flare ups” including “conservative treatment in the future for a period of five years.” (MC-350EX pp. 36-38.) Guardian ad litem and minor Claimant indicate that “minor has no current complaints and feels fully recovered thereby not necessitating any future care.” (MC-350EX p. 44, Attach. 9b.)

Handling of Funds

How are settlement funds to be disposed of? “$5,244.36 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 19b(2).” (MC-350EX ¶ 19(b)(2).) Attachment 19(b)(2) lists the bank contact information for U.S. Bank. (MC-350EX p. 71.) Petitioner has also submitted an amended Order to Deposit Funds in Blocked Account, MC-355.

Attorneys’ Fees and Litigation Costs

· Attorneys’ fees requested? Yes. (MC-350EX ¶ 14.)

· If yes, attorney declaration including factors under CRC 7.955(b)? Yes. (MC-350EX pp. 65-66, Attach. 14(a).)

· Copy of retainer agreement? Yes.

· Litigation costs requested? Yes.

o Itemized? Yes. (MC-350EX ¶ 14b)

On December 2, 2022, the Court noted the following deficiencies in the Expedited Petition and set a hearing for the Petition. (12-2-22 Minute Order.)

1) All forms contain the wrong address for the courthouse. (MC-350EX p. 1; MC-351 p. 1; MC-355 p. 1.)

2) No Proof of Service has been filed indicating that Defendant has been served with the Petition or the First Amended Complaint.

3) Petitioner has not checked the box for “guardian ad litem” on MC-350EX, MC-351, or MC-355. (MC-350EX ¶ 1; MC-351 ¶ 2; MC-355 ¶ 3.)

4) Petitioner has not included Attachment 11c.

5) Box 20 is checked but additional details are not provided. (MC-350EX ¶ 20.)

6) Petitioner indicates that minor Bianca’s injuries have completely healed; however, medical records indicate that she may need some conservative treatment for flare ups for a period of five years. Petitioner must clarify this inconsistency.

7) Copy of attorney-client retainer agreement is not included.

(Ibid.)

On January 9, 2023, Petitioner filed Proof of Service of First Amended Complaint on Defendant by Substitute Service, along with a Declaration of Due Diligence.

On January 13, 2023, Petitioner filed an amended Expedited Petition for Minor’s Compromise on behalf of minor Claimant Bianca Cabrera. The Court notes that Petitioner has corrected most of the deficiencies noted on December 2, 2022; however, the Petition still contains the following deficiencies.

1) Petitioner has not demonstrated that Defendant has been served with the Expedited Petition and associated papers.

2) Petitioner indicates that the total medical expenses paid amount to $10,745; however, Petitioner does not explain how these expenses were paid. (See MC-350EX ¶ 13a(2).)

3) Petitioner’s responses regarding minor Bianca’s recovery remain inconsistent. (See MC-350EX ¶ 9, pp. 36-38; p. 44, Attach. 9b.) Petitioner is ordered to clarify whether she has fully recovered from the injuries sustained.

4) MC-351 incorrectly states that no hearing was held on the Petition. (MC-351 ¶ 1.)

Accordingly, the hearing on the Petition filed on behalf of minor Claimant Bianca Cabrera is CONTINUED to MARCH 15, 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.

B. Minor Claimant Oscar Cabrera

Minor – Oscar Cabrera, 16 years old

Guardian Ad Litem – Jorge Cabrera

Defendants – Onofre Roman

Settlement: $4,999.99

Attorney’s Fees: $1,250.00

Litigation Costs: $255.65

Medical Bills: $0

TOTAL TO BE PAID TO MINOR: $3,493.34

General Requirements

· Petition on Form MC-350EX? YES

· Proposed Order on Form MC-351? NONE

· Proof of service on other parties? NONE.

Type of injury, medical expenses

Minor Claimant Oscar suffered “no injuries” and did not receive any treatment. (MC-350EX ¶¶ 7-8; p. 11 - Attach. 9.)

· Medical records documenting injuries and treatment? Minor did not receive medical care. (MC-350EX, p. 11 - Attach. 9.)

· Negotiated reduction in medical liens? Petitioner does not have medical expenses. (MC-350EX ¶ 13, p. 14 - Attach. 13(a).)

· Injuries completely healed? Minor Claimant Oscar suffered “no injuries” and did not receive any treatment. (MC-350EX ¶¶ 7-8.)

Handling of Funds

How are settlement funds to be disposed of? “$3,494.34 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 19b(2).” (MC-350EX ¶ 19(b)(2).) Attachment 19(b)(2) lists the bank contact information for U.S. Bank. (MC-350EX p. 26 – Attach. 19(b)(2).) Petitioner has also submitted an amended Order to Deposit Funds in Blocked Account, MC-355.

Attorneys’ Fees and Litigation Costs

· Attorneys’ fees requested? Yes. (MC-350EX ¶ 14.)

· If yes, attorney declaration including factors under CRC 7.955(b)? Yes. (MC-350EX pp. 16-17, Attach. 14(a).)

· Copy of retainer agreement? Yes.

· Litigation costs requested? Yes.

o Itemized? Yes. (MC-350EX ¶ 14b)

On December 2, 2022, the Court noted the following deficiencies in the Expedited Petition and set a hearing for the Petition. (12-2-22 Minute Order.)

1) All forms contain the wrong address for the courthouse. (MC-350EX p. 1; MC-351 p. 1.)

2) No Proof of Service has been filed indicating that Defendant has been served with the Petition or the First Amended Complaint.

3) Petitioner has not checked the box for “guardian ad litem” on MC-350EX or MC-351. (MC-350EX ¶ 1; MC-351 ¶ 2.)

4) Petitioner has not included Attachment 11c.

5) Box 20 is checked but additional details are not provided. (MC-350EX ¶ 20.)

6) Petitioner indicates that minor Oscar received chiropractic and orthopedic care, but in Attachment 9 states that “Minor did not receive medical care.” Petitioner also states that Minor suffered injuries and has completely recovered from the injuries but provides no documentation to support this statement. Petitioner must provide further explanation regarding these inconsistencies.

7) Petitioner indicates medical expenses on MC-350EX ¶ 13, but states that Minor does not have medical expenses in Attachment 13(a). Petitioner must clarify this inconsistency.

8) Copy of attorney-client retainer agreement is not included.

9) Petitioner has not filed Form MC-355, Order to Deposit Funds in Blocked Account for the Petition filed on behalf of Minor Claimant Oscar Cabrera.

(Ibid.)

On January 9, 2023, Petitioner filed Proof of Service of First Amended Complaint on Defendant by Substitute Service, along with a Declaration of Due Diligence.

On January 13, 2023, Petitioner filed an amended Expedited Petition for Minor’s Compromise on behalf of minor Claimant Oscar Cabrera. The Court notes that Petitioner has corrected most of the deficiencies noted on December 2, 2022; however, the Petition still contains the following deficiencies.

1) Petitioner has not demonstrated that Defendant has been served with the Expedited Petition and associated papers.

2) Petitioner has not filed a Proposed Order, MC-351, as both forms filed pertain to minor Bianca Cabrera.

Accordingly, the hearing on the Petition filed on behalf of minor Claimant Oscar Cabrera is CONTINUED to MARCH 15, 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.

Moving party is ordered to give notice. Certificate of Mailing is attached.