Judge Katherine Chilton, Case 22STLC04408 2023-05-18 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 Petition to Approve Minor’s Compromise filed on behalf of minor Claimant Yovani Enrique Barrales Caballero is DENIED without prejudice.

The Petition to Approve Minor’s Compromise filed on behalf of minor Claimant Kimberly Anali Perez Caballero is DENIED without prejudice.

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.

On April 17, 2023, the Court noted additional deficiencies in the Petition and continued the hearing on the Petitions to May 18, 2023. (4-17-23 Minute Order.)

Petitioner filed amended Petitions on May 3, 2023. The Court notes that the Petitions have once again been filed eleven (11) court days before the hearing, instead of sixteen (16) court days as ordered by the Court previously. (See 4-17-23 Minute Order.) There is no indication that Petitioner has served the amended Petitions on Defendant.

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 April 17, 2023, the Court noted the following deficiencies in the Petition filed on behalf of minor Claimant Yovani.

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

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

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

On May 3, 2023, Petitioner filed an amended Petition on behalf of minor Claimant Yovani. The Court notes that the following deficiencies remain in the Petition.

1. Petitioner has again filed the Petition eleven (11) court days before the hearing, instead of sixteen (16) court days, as ordered by the Court and required by § 1005(b). Petitioner has not filed proof that the amended Petition was served on Defendant.

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

3. Petitioner has incorrectly checked box MC-350EX ¶ 2e, 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.)

The Court finds that Petitioner has had several opportunities to correct the deficiencies outlined and has failed to correct them. For this reason, the Petition filed on behalf of minor Claimant Yovani is DENIED.

The Court also requests that, when filing any future petitions, Petitioner attach any evidence and attachments after the judicial council forms, to make it easier for the Court to review whether Petitioner has properly filed all necessary papers.

On April 17, 2023, the Court noted the following deficiencies in the Petition filed on behalf of minor Claimant Kimberly.

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

3. Petitioner had 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 indicated 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 Yovani. (Pet. ¶ 18b.)

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

On May 3, 2023, Petitioner filed an amended Petition on behalf of minor Claimant Kimberly. The Court notes that the following deficiencies remain in the Petition.

5. Petitioner has again filed the Petition eleven (11) court days before the hearing, instead of sixteen (16) court days, as ordered by the Court and required by § 1005(b). Petitioner has not filed proof that the amended Petition was served on Defendant.

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

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

8. 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 Yovani. (Pet. ¶ 18b.)

[1] The amended Petitions were filed eleven (11) court days before the hearing, instead of sixteen (16) court days, as ordered by the Court and required by Code of Civil Procedure § 1005(b). Petitioner has not filed proof of serving the amended Petitions on Defendant.