Judge Katherine Chilton, Case 21STLC08736 2023-03-15 Tentative Ruling

Judge: Katherine Chilton, Case: 21STLC08736, Date: 2023-03-15 Tentative Ruling

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

PROCEEDINGS: EXPEDITED PETITION 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 APRIL 18, 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 Petition filed on behalf of minor Claimant Oscar Cabrera is GRANTED.

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 March 12, 2023. [ ] Late [X] None

REPLY: None filed as of March 12, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On December 10, 2021, Plaintiffs Maria Espino (“Espino”) and Jorge Cabrera, on behalf of minor Bianca Cabrera, (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 guardian ad litem for minor Plaintiff Bianca Cabrera 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 guardian ad litem for minor 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 Cabrera and Oscar Cabrera.

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 to February 15, 2023. (12-28-22 Minute Order.)

On February 15, 2023, the Court noted that the Petitions still contained some deficiencies and continued the hearing to March 15, 2023. (2-15-23 Minute Order.)

On February 17, 2023, Petitioner filed Second Amended Petitions 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? YES.

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.)

· Medical records documenting injuries and treatment? Yes. (MC-350EX pp. 11-43.)

· Negotiated reduction in medical liens? Yes. (MC-350EX ¶ 13a(3).) The negotiated reductions are further explained in Attachment 13(a).)

· Injuries completely healed? Petitioner indicates that minor Bianca “has not recovered completely from the effects of the injuries described in item 7, and the following injuries from which the claimant has not recovered are temporary.” (Ibid. at ¶ 9.) The medical records attached to the Petition 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.) However, in Attachment 9b, Petitioner indicates that “counsel spoke to the guardian ad litem and parent on 1/11/23 where it was confirmed that no further treatment has been received. For clarification, the client is pain free and fully recovered from her sustained injuries.” (Pet. p. 44.) The Court finds that Petitioner’s response to this question remains inconsistent.

Handling of Funds

How are settlement funds to be disposed of? “There is no guardianship of the estate of the minor…$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.)

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. (MC-350 EX pp. 67-68.)

· Litigation costs requested? Yes.

o Itemized? Yes. (MC-350EX ¶ 14b)

On December 2, 2022, and February 15, 2023, the Court noted several deficiencies in the Petition and continued the hearing to allow Petitioner an opportunity to correct these deficiencies. (12-2-22 Minute Order; 2-15-23 Minute Order.)

Having reviewed the Second Amended Petition, the Court finds that Petitioner has corrected nearly all deficiencies in the Petition. The only remaining issue is that Petitioner’s responses regarding minor Claimant’s injuries are still inconsistent.

In response to Question 9, MC-350 EX ¶ 9b, Petitioner indicates that minor Bianca “has not recovered completely from the effects of the injuries described in item 7, and the following injuries from which the claimant has not recovered are temporary.” However, in Attachment 9b, Petitioner further explains that “counsel spoke to the guardian ad litem and parent on 1/11/23 where it was confirmed that no further treatment has been received. For clarification, the client is pain free and fully recovered from her sustained injuries.” (Pet. p. 44.) Moreover, the medical records attached to the Petition indicate that minor “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.) The Court finds that Petitioner’s response to this question remains inconsistent.

For this reason, the hearing on the Petition filed on behalf of minor Claimant Bianca Cabrera is CONTINUED to APRIL 18, 2023 at 10:00 a.m. in Department 25 at the SPRING STREET COURTHOUSE. Petitioner is ordered to file supplemental papers addressing the issue noted herein at least 16 court days before the scheduled hearing and to serve Respondent with a notice of continuance of hearing. Failure to do so may result in the hearing being placed off calendar or denied.

Moving party is ordered to give notice.

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? YES

· Proof of service on other parties? YES

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? “There is no guardianship of the estate of the minor…$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).)

Attorneys’ Fees and Litigation Costs

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

· 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. (MC-350EX pp. 18-23.)

· Litigation costs requested? Yes.

o Itemized? Yes. (MC-350EX ¶ 14b)

On December 2, 2022, and February 15, 2023, the Court noted several deficiencies in the Petition and continued the hearings to allow Petitioner an opportunity to correct these deficiencies. (12-2-22 Minute Order; 2-15-23 Minute Order.)

Having reviewed the Second Amended Petition, the Court finds that Petitioner has corrected all deficiencies in the Petition filed on behalf of minor Claimant Oscar Cabrera.

Accordingly, the Petition filed on behalf of minor Claimant Oscar Cabrera is GRANTED.

Moving party is ordered to give notice.