Judge: Katherine Chilton, Case: 22STLC02764, Date: 2022-09-22 Tentative Ruling

Case Number: 22STLC02764     Hearing Date: September 22, 2022    Dept: 25

PROCEEDINGS:      PETITION FOR EXPEDITED APPROVAL OF MINOR’S COMPROMISE

MOVING PARTY:   Petitioner Noe Antonio Duenas, on behalf of minor Claimant Noe Alexander Duenas

RESP. PARTY:         None

PETITION FOR EXPEDITED APPROVAL OF MINOR’S COMPROMISE OF A DISPUTED CLAIM

(CCP § 372, CRC, rule 7.950.5)

TENTATIVE RULING:

The hearing on the Petition for Expedited Approval of Minor’s Compromise is CONTINUED to NOVEMBER 2, 2022 at 10:30 AM in Department 25 at Spring Street Courthouse.  Petitioner is ordered to file supplemental papers addressing the deficiencies noted herein at least 16 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)                 NOT OK

[X] Correct Address (CCP §§ 1013, 1013a)                                                 NOT OK

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                     NOT OK

OPPOSITION:          None filed as of September 21, 2022                      [   ] Late                      [X] None

REPLY:                     None filed as of September 21, 2022                      [   ] Late                      [X] None

ANALYSIS:

I.                Background

            On April 20, 2022, minor Plaintiff Noe Alexander Duenas (“Claimant”), by and through his guardian ad litem, Noe Antonio Duenas (“Petitioner”) filed an action against Defendant Kendra Kerr (“Defendant”) for motor vehicle and general negligence.  Petitioner was appointed as Claimant’s guardian ad litem on June 3, 2022.

            On June 27, 2022, Petitioner filed a Petition for Expedited Approval of Compromise of Claim (“Petition”) and Order to Deposit Money into Blocked Account (“Order to Deposit”).

            On August 19, 2022, the Court continued the hearing on the Petition to allow Petitioner additional time to correct errors in the Petition.  (8-19-22 Minute Order.)

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

            On August 19, 2022, the Court noted the following errors in the Petition:

1.     In paragraph 1 of the Petition, the box for “guardian ad litem” is not checked;

2.     The date of birth for Minor Duenas is listed as 05/22/17 on the Petition but listed as 05/17/2017 on the Order to Deposit Money into Block Account, box 5.b.;

3.     Box 12.b. states that “Jesus Duenas” would receive settlement payments but Jesus Duenas is not listed as a plaintiff and there is no explanation for this payment on attachment 12.;

4.     No proof of service was filed demonstrating that Defendant Kerr was served with the Summons and Complaint or with this Petition and proposed orders MC-351 and MC-355.

On August 31, 2022, Petitioner filed Proof of Service of Summons and Complaint on Kendra Kerr, served on August 30, 2022, by substituted service.  (8-31-22 Proof of Service.)

On August 31, 2022, an amended Petition and an amended Order to Deposit Money into Blocked Account were filed by Petitioner.  Minor Duenas’ age has been corrected to May 22, 2017, on the Petition and Order and Attachment 12b includes an explanation of payment to Jesus Duenas.

However, the Court notes additional deficiencies.  First, there is still no indication that Defendant has been served with a copy of the Petition and Order.  Furthermore, both the Petition and Order list the wrong address for the courthouse where the hearing on the Petition will be held as they list the address for the Stanley Mosk Courthouse instead of the Spring Street Courthouse.  Petitioner is ordered to correct the Notice to reflect the correct courthouse address, serve the Petition and corrected Notice on Defendant, and file a Proof of Service with the Court.

The Court also notes that the declaration of Counsel Marielys Acosta, submitted in support of the request for attorney’s fees, is not signed under penalty of perjury, and orders Petition to submit a signed declaration.  (Pet. p. 51, Attach. 14a.)

For these reasons, the hearing on the Petition is CONTINUED.

IV.           Conclusion & Order

For the foregoing reasons,

The hearing on the Petition for Expedited Approval of Minor’s Compromise is CONTINUED to NOVEMBER 2, 2022 at 10:30 AM in Department 25 at Spring Street Courthouse.  Petitioner is ordered to file supplemental papers addressing the deficiencies noted herein at least 16 days before the scheduled hearing.  Failure to do so may result in the hearing being placed off calendar or denied.

Petitioner is ordered to give notice.