Judge Katherine Chilton, Case 22STLC04408 2023-04-17 Tentative Ruling

PROCEEDINGS: EXPEDITED PETITION FOR APPROVAL OF MINOR’S COMPROMISE

MOVING PARTY: Petitioner Sonia Elizabeth Caballero Cerna, on behalf of minor Claimants Yovani Enrique Barrales Caballero and Kimberly Anali Perez Caballero

The hearing on the Petition to Approve Minor’s Compromise filed on behalf of minor Claimant Yovani Enrique Barrales Caballero is CONTINUED to MAY 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 Petition being placed off calendar or denied.

The hearing on the Petition to Approve Minor’s Compromise filed on behalf of minor Claimant Kimberly Anali Perez Caballero is CONTINUED to MAY 18, 2023 at10:00 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 Petition being placed off calendar or denied.

On July 1, 2022, minor Plaintiffs Yovani Enrique Barrales Caballero (“Yovani”) and Kimberly Anali Perez Caballero (“Kimberly”) (collectively, “minor Claimants”), by and through their parent Sonia Elizabeth Caballero (“Petitioner”) filed an action against Defendant Karina Zamora Ramos (“Defendant” or “Ramos”) arising out of an alleged automobile accident on April 30, 2021.

On July 8, 2022, Sonia Elizabeth Caballero (“Petitioner” or “Sonia”) was appointed guardian ad litem for minor Claimants Yovani and Kimberly.

On September 26 and 29, 2022, Petitioner filed the instant Expedited Petitions for Approval of Minor’s Compromise of Disputed Claim on behalf of minor Claimants Yovani and Kimberly.

On March 10, 2023, the Court noted several deficiencies in the Petitions and set a hearing for both Petitions on April 17, 2023. (3-10-23 Minute Order.)

On March 30, 2023, Petitioner filed amended Petitions on behalf of minor Claimants Yovani and Kimberly.

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 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;

(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.

On March 10, 2023, the Court noted the following deficiencies in the Expedited Petition filed on behalf of minor Claimant Yovani, and set a hearing on the Petition.

1. Defendant has not been served with the summons, complaint, or instant Petition.

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

3. Petitioner has incorrectly checked box MC-350EX ¶ 2f, as it applies to a petition filed on behalf of an adult with a disability, not a minor.

4. Petitioner has submitted billing statements from the medical providers; however, there is no proof that the medical providers have agreed to the negotiated amount of medical fees. (Pet. pp. 12-17 – Attachs. 13(a), 13(g).)

On March 30, 2023, Petitioner filed an amended Petition on behalf of minor Claimant Yovani, which sets forth the following information. The Court notes that the amended Petition was filed and served eleven (11) court days prior to the hearing, instead of sixteen (16) court days, and an additional five (5) calendar days due to service by mail, as required by the Court and Code of Civil Procedure § 1005(b).

Defendants – Karina Zamora Ramos; Allstate Insurance (Petitioner’s insurance)

Minor Claimant Yovani has “sustained back pain, lower back pain, upper back pain and headaches.” (3-30-23 Pet. ¶ 7.) He “received physical therapy and examination at United Care Chiropractic and Aivizan Chiropractic, radiology examination at Excel Imaging Center.” (Ibid. at ¶ 8.)

· Medical records documenting injuries and treatment? Yes. (9-26-22 Pet. pp. 4-9– Attach. 9.)

· Negotiated reduction in medical liens? Yes. (3-30-23 Pet. ¶ 13a(3).) Petitioner has submitted billing statements from the medical providers and proof that the medical providers have agreed to the negotiated amount of medical fees. (3-30-23 Pet. pp. 6-14 – Attachs. 13(a), 13(g).)

· Injuries completely healed? Yes, Claimant “has recovered completely from the effects of the injuries described in item 7, and there are no permanent injuries.” (3-30-23 Pet. ¶ 9.) Petitioner has submitted a letter from the chiropractor’s office stating that minor Claimant’s “condition has reached a point of maximum medical improvement” and “[f]urther treatment will not be needed unless an acute exacerbation flares up.” (9-26-22 Pet. pp. 5-9 – Attach. 9.)

How are settlement funds to be disposed of? “There is no guardianship of the estate of the minor” and Petitioner requests that the settlement funds in the amount of “$4,067.67 be paid or delivered to a parent of the minor on the terms and under the conditions specified in Probate Code sections 3401-3402, without bond.” (3-30-23 Pet. ¶ 19b(4).) Petitioner has filed Attachment 19b(4) with the minor Claimant’s parent’s address. (Ibid. at p. 24 – Attach. 19b(4).)

· Attorneys’ fees requested? Yes. (3-30-23 Pet. ¶ 14; pp. 15-17 – Attach. 14a – Smith Decl.)

· If yes, attorney declaration including factors under CRC 7.955(b)? Yes. (3-30-23 Pet. ¶ 14; pp. 18-20 – Attach. 14a – Smith Decl.)

Having reviewed the amended Petition, the Court notes additional deficiencies, including the following:

1. Defendant was served with the Petition eleven (11) court days before the hearing, instead of sixteen (16) court days, and an additional five (5) calendar days, as required by the Court and § 1005(b).

2. Petitioner has not filed proof that Defendant has been served with the summons and complaint.

3. Petitioner has incorrectly checked box MC-350EX ¶ 2f, as it applies to a petition filed on behalf of an adult with a disability, not a minor.

4. Petitioner’s counsel indicates that he “has neither received nor expects to receive” any compensation in addition to the amount requested in this Petition. However, he also requests compensation in the matter of minor Claimant Kimberly. (Pet. ¶ 18b.)

5. Petitioner has not filed a Proposed Order, MC-351, with the updated hearing date.

For these reasons, the hearing on the Petition to Approve Minor’s Compromise filed on behalf of minor Claimant Yovani Enrique Barrales Caballero is CONTINUED to MAY 18, 2023 at 10:0 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 Petition being placed off calendar or denied.

On March 10, 2023, the Court noted the following deficiencies in the Expedited Petition and set a hearing on the Petition.

1. Defendant has not been served with the summons, complaint, or instant Petition.

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

3. Petitioner has incorrectly checked box MC-350EX ¶ 2f, as it applies to a petition filed on behalf of an adult with a disability, not a minor.

On March 30, 2023, Petitioner filed an amended Petition on behalf of minor Claimant Kimberly, which sets forth the following information. The Court notes that the amended Petition was filed and served eleven (11) court days prior to the hearing, instead of sixteen (16) court days, and an additional five (5) calendar days due to service by mail, as required by the Court and Code of Civil Procedure § 1005(b).

Defendants – Karina Zamora Ramos; Allstate Insurance (Petitioner’s insurance)

Minor Claimant Kimberly has “sustained back pain, lower back pain and headaches.” (3-30-23 Pet. ¶ 7.) She “received physical therapy and examination at United Care Chiropractic and Aivizan Chiropractic.” (Ibid. at ¶ 8.)

· Medical records documenting injuries and treatment? Yes. (3-30-23 Pet. pp. 4-13– Attach. 9.)

· Injuries completely healed? Yes, Claimant “has recovered completely from the effects of the injuries described in item 7, and there are no permanent injuries.” (3-30-23 Pet. ¶ 9.) Petitioner has submitted a letter from the chiropractor’s office stating that the “prognosis in such a case is generally good, due to the child’s resilience and rapid healing ability” and Kimberly is “discharged at this time with instructions to his [sic] parents to bring him [sic] back immediately if symptoms reoccur or any further problems are noted.” (Ibid. at p. 13 – Attach. 9.)

How are settlement funds to be disposed of? “There is no guardianship of the estate of the minor” and Petitioner requests that the settlement funds in the amount of “$4,467.67 be paid or delivered to a parent of the minor on the terms and under the conditions specified in Probate Code sections 3401-3402, without bond.” (3-30-23 Pet. ¶ 19b(4).) Petitioner has filed Attachment 19b(4) with the minor Claimant’s parent’s address. (Ibid. at p. 31 – Attach. 19b(4).)

· Attorneys’ fees requested? Yes. (3-30-23 Pet. ¶ 14; pp. 23-25 – Attach. 14a – Smith Decl.)

· If yes, attorney declaration including factors under CRC 7.955(b)? Yes. (3-30-23 Pet. ¶ 14; pp. 23-25 – Attach. 14a – Smith Decl.)

Having reviewed the amended Petition, the Court notes additional deficiencies, including the following:

2. Petitioner has not filed proof that Defendant has been served with the summons and complaint.

3. Petitioner has incorrectly checked box MC-350EX ¶ 2f, as it applies to a petition filed on behalf of an adult with a disability, not a minor.

5. Petitioner has not filed a Proposed Order, MC-351, with the updated hearing date.

For these reasons, the hearing on the Petition to Approve Minor’s Compromise filed on behalf of minor Claimant Kimberly Anali Perez Caballero is CONTINUED to MAY 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 Petition being placed off calendar or denied.

[1] The amended Petitions were filed and served eleven (11) court days before the hearing, instead of sixteen (16) court days, and five (5) additional days due to service by mail, as ordered by the Court and required by Code of Civil Procedure § 1005(b).