Judge: Katherine Chilton, Case: 22STLC02238, Date: 2023-04-18 Tentative Ruling

Case Number: 22STLC02238    Hearing Date: April 18, 2023    Dept: 25

PROCEEDINGS:      EXPEDITED PETITION FOR APPROVAL OF MINOR’S COMPROMISE

MOVING PARTY:   Petitioner Miguel Lemus, on behalf of minor Claimant Ashley Lemus

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 Expedited Petition for Approval of Minor’s Compromise filed on behalf of minor Claimant Ashley Lemus is DENIED without prejudice.

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 April 13, 2023.               [   ] Late                      [X] None

REPLY:                     None filed as of April 13, 2023.               [   ] Late                      [X] None

ANALYSIS:

I.                Background

            On April 4, 2022, minor Plaintiff Ashley Lemus (“Claimant”), by and through her parent Miguel Lemus (“Petitioner”) filed an action against Defendant Guillermo F. Neuenschwander Grupp (“Defendant”) for negligence, arising out of an alleged automobile accident.  On April 6 and April 22, 2022, the Court rejected Petitioner’s Application for Appointment of Miguel Lemus, as her guardian ad litem, due to missing information.  (4-6-22 Notice of Rejection; 4-22-22 Notice of Rejection.)

            Subsequently, on May 3, 2022, Petitioner filed an Expedited Petition to Approve Minor’s Compromise, which was rejected by the Court.  (5-3-22 Notice of Rejection.)

            On July 21, 2022, Petitioner filed a Petition to Approve Minor’s Compromise.  On September 27, 2022, the Court continued the hearing on the Petition because Miguel Lemus had not been appointed guardian ad litem for minor Ashley Lemus and ordered Petitioner to file an Application and Order for Appointment of Guardian Ad Litem.  (9-27-22 Minute Order.)  On November 15, 2022, the Court noted that Petitioner had not filed any additional papers since its prior order and denied the Petition.  (11-15-22 Minute Order.)

            On November 15, 2022, Petitioner was appointed guardian ad litem for minor Claimant Ashley Lemus.  (11-15-22 Application and Order for Appointment of Guardian Ad Litem.)

            On January 24, 2023, Petitioner filed the instant Expedited Petition to Approve Minor’s Compromise of Disputed Claim (“Petition”).

            On March 15, 2023, the Court noted several deficiencies in the Expedited Petition and set a hearing for April 18, 2023.  (3-15-23 Minute Order.)

No supplemental papers have been filed since the Court Order on March 15, 2023.  No opposition has been filed to the Petition.

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.)

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.

On March 15, 2023, the Court reviewed the Expedited Petition.  The Petition, filed on January 24, 2023, sets out the following information.

Minor – Ashley Lemus, 7 years old

Guardian Ad Litem – Miguel Lemus

Defendants – Guillermo F. N. Grupp

            Settlement:                                          $3,000.00

            Attorney’s Fees:                                  $750.00

            Litigation Costs:                                 $0

            Medical Bills:                                     $250.00

            TOTAL TO BE PAID TO MINOR:             $2,000.00

            General Requirements

·       Petition on Form MC-350EX?           YES

·       Proposed Order on Form MC-351?      YES

·       Proof of service on other parties?       Defendant not served.

Type of injury, medical expenses

Minor Claimant Ashley Lemus’s injuries include “[n]eck pain and mid back pain.”  (Pet. ¶ 7.)  She received the following care “[h]ot packs and Chiropractic manipulative Therapy to the affected areas.”  (Ibid. at ¶ 8.)

·       Medical records documenting injuries and treatment?  Yes.  (Pet. pp. 8-12 – Attach. 9.)

·       Negotiated reduction in medical liens?  Yes.  (Pet. ¶ 13a(3).)  There is no proof indicating that there has been a negotiated reduction of medical expenses to $250.

·       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 not submitted any evidence to show that minor has recovered from the injuries.

Handling of Funds

How are settlement funds to be disposed of?  Petitioner has checked ¶ 19b, stating that there is no guardianship of the estate, but has not indicated how he wants the settlement funds to be disposed.  (Pet. ¶ 19b.)

Attorneys’ Fees and Litigation Costs

·       Attorneys’ fees requested?  Yes.  (Pet. ¶ 14; Pet. pp. 13-17 – Attach. 13b – Akhidenor Decl.)

·       If yes, attorney declaration including factors under CRC 7.955(b)?  Yes.  (Pet. ¶ 14; Pet. pp. 13-17 – Attach. 13b – Akhidenor Decl.)

·       Copy of retainer agreement? Yes.  (Pet. pp. 18-19.)

·       Litigation costs requested?  No.

o   Itemized?  N/A

Having reviewed the instant Petition, the Court noted numerous deficiencies, including the following:

1.     The Petition contains the wrong address for the courthouse where the hearing will be held, as it lists the Stanley Mosk Courthouse address instead of the Spring Street Courthouse address.

2.     Petitioner has not checked the box for “guardian ad litem” on MC-350EX ¶ 1.

3.     Petitioner has not checked MC-350EX ¶ 10.

4.     Petitioner has not completed MC-350EX ¶ 11a.

5.     Petitioner provides inconsistent information about liens for medical expenses on Form MC-350EX.  He listed the total amount of liens as $250 in ¶ 13a(5) but also checked both boxes in ¶ 13f(1) and (2). He also checked box ¶ 13e and stated that Petitioner has paid medical expenses in the amount of $250 and needs to be reimbursed but also checked ¶ 15 that he has not paid any of the fees or expenses.  Petitioner must present the Court with clear and consistent answers to these questions.

6.     Petitioner has checked ¶ 15a, indicating that he has not paid any of the fees/expenses but has listed amounts in ¶ 15b.  Petitioner must correct his answers to this question.

7.     Petitioner has submitted a bill from a chiropractor who treated minor Claimant, listing an amount of $375.00.  In the Petition, medical expenses are listed as $250.  Petitioner has not submitted any proof showing a negotiated reduction in the amount of medical expenses to be paid.

8.     Petitioner indicates that minor Claimant had neck and back pain following the accident, but has completely healed from the injuries.  Petitioner has not submitted any evidence to show that minor has recovered from the injuries.

9.     Defendant has not been served with the summons, complaint, or the Expedited Petition.

10.  Petitioner has not checked the box for “guardian ad litem” on Form MC-351 ¶ 2.

11.  Petitioner has not checked the box on Form MC-351 ¶ 8a(1) for attorney’s fees.

(3-15-23 Minute Order.)

The Court finds that Petitioner has not filed any supplemental papers addressing these deficiencies.

Accordingly, the Expedited Petition for Approval of Minor’s Compromise filed on behalf of minor Claimant Ashley Lemus is DENIED without prejudice.

Petitioner is ordered to give notice.