Judge Katherine Chilton, Case 22STLC05038 2023-01-18 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC05038, Date: 2023-01-18 Tentative Ruling

Case Number: 22STLC05038 Hearing Date: January 18, 2023 Dept: 25

PROCEEDINGS: PETITION FOR MINOR’S COMPROMISE

MOVING PARTY: Petitioner Georgy Ekpenisi on behalf of Minor Claimant Chimchetaram Macauley-Ekpenisi

RESP. PARTY: None

PETITION TO APPROVE MINOR’S COMPROMISE OF DISPUTED CLAIM

(CCP § 372, CRC, rule 7.950.5)

TENTATIVE RULING:

The Petition for Approval of Minor’s Compromise filed on behalf of minor Claimant Chimchetaram Macauley-Ekpenisi is DENIED without prejudice.

SERVICE: [1]

[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 January 10, 2023. [ ] Late [X] None

REPLY: None filed as of January 10, 2023. [ ] Late [X] None

ANALYSIS:

I. Background

On August 2, 2022, Plaintiff Georgy Ekpenisi (“Plaintiff”) and minor Plaintiff Chimchetaram Macauley-Ekpenisi (“Claimant”) filed an action against Defendant Emmanuel Tyrone Bull (“Defendant”) arising out of a motor vehicle accident on November 5, 2021. Plaintiff Georgy Ekpenisi was appointed Claimant Chimchetaram Macauley-Ekpenisi’s guardian ad litem on August 3, 2022.

On August 5, 2022, Plaintiff Georgy Ekpenisi (“Petitioner”) filed an Expedited Petition to Approve Compromise of Disputed Claim. The Court denied the Expedited Petition on August 15, 2022. (8-15-22 Minute Order.) On the same day, the Court denied Petitioner’s Ex Parte Application for an Order Shortening Time for Hearing Plaintiff’s Expedited Petition for Minor’s Compromise. (Ibid.)

On December 14, 2022, Petitioner filed the instant Petition to Approve Minor’s Compromise of Disputed Claim (“Petition”). 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 section 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

The Petition sets out the following information:

Minor –Chimchetaram Macauley-Ekpenisi, 5 years old

Guardian Ad Litem – Georgy Ekpenisi

Defendants – Not listed in ¶ 5c.

Settlement: $15,000.00

Attorney’s Fees: $4,995.00

Litigation Costs: $443.20

Medical Bills: $4,389.81

TOTAL TO BE PAID TO MINOR: $5,171.99

General Requirements

· Petition on Form MC-350? YES

· Proposed Order on Form MC-351? YES

· Proof of service on other parties? NOT OK, served by party in the case

Type of injury, medical expenses

Minor Claimant Georgy Ekpenisi has “ankle pain and bruises.” (Pet. ¶ 7.) Claimant was treated at the ER and “received emergency care only.” (Ibid. at ¶ 8.)

· Medical records documenting injuries and treatment? None.

· Negotiated reduction in medical liens? None.

· 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.) However, Petitioner has not submitted any evidence that Minor Claimant’s injuries have completely healed.

Handling of Funds

How are settlement funds to be disposed of? “$5171.99 of money will be deposited in insured accounts in one or more financial institutions in this state, subject to withdrawal only upon authorization of the court. The name, branch, and address of each depository are specified in Attachment 19(2).” (Pet. ¶ 19b(2).) However, Petitioner has not filed Attachment 19b(2).

Attorneys’ Fees and Litigation Costs

· Attorneys’ fees requested? Yes, in excess of 25% of total settlement. (Pet. ¶ 17c; Ekpenisi Decl. ¶ 8.)

· If yes, attorney declaration including factors under CRC 7.955(b)? Not sufficient. (Ekpenisi Decl.)

· Copy of retainer agreement? Yes. (Pet. p. 13: Attach. 15(a).)

· Litigation costs requested? Yes. (Pet. ¶ 14b; Pet. p. 18: Attach. 15c.)

o Itemized? Yes. (Pet. ¶ 14b; Pet. p. 18: Attach. 15c.)

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

1. Petitioner has not checked ¶ 3b indicating that she is the parent and the guardian ad litem for Minor Claimant on MC-350. Similarly, ¶ 3b is not checked on Proposed Order, Form MC-351.

2. Petitioner has added information under ¶ 4b but has not checked box 4b.

3. Petitioner has not listed the persons involved in the incident, including the Defendant. (Pet. ¶ 5c.)

4. Petitioner indicates that Minor Claimant’s injuries have completely healed; however, she has not submitted any evidence to support this contention. (Pet. ¶ 9.)

5. Petitioner has indicated that “By way of settlement, one or more defendants named in item 11 b have also offered to pay money to a person or persons other than claimant to settle claims arising out of the same incident or accident that resulted in the claimant's injury.” (Pet. ¶ 12b.) However, only Minor Claimant is listed.

6. Petitioner indicates that total medical expenses amount to $7,942.74 and the outstanding medical expenses amount to $4,389.81. (Pet. ¶ 13.) However, the Court is not presented with any information to show how this calculation was made, who made payments toward medical expenses, and whether there was a negotiated reduction. (Ibid.) Furthermore, Petitioner has not submitted any medical records in support of its request for medical expenses.

7. Petitioner requests attorney’s fees, as indicated in ¶ 17c, but has not completed ¶ 14a.

8. Petitioner has not checked any boxes for ¶ 15 and the Court cannot discern how the amount of $5171.99 was calculated.

9. Petitioner has not completed ¶ 16.

10. Petitioner requests $4,995.00 in attorney’s fees, which is in excess of the customary 25% permitted for a minor’s compromise. (Pet. ¶ 17c.)

11. Petitioner’s counsel’s declaration does not sufficiently address factors under CRC 7.955(b). (See Ekpenisi Decl.)

12. Petitioner has not completed ¶ 18a.

13. Petitioner has checked the wrong box on ¶ 18c.

14. Petitioner has not submitted Attachment 19b(1) providing information regarding the accounts where the settlement will be deposited.

15. Petition was improperly served on Defendant by Georgy Ekpenisi, who is a party to the action. (Pet. p. 24.)

16. Petitioner has not checked box 7c(1)(c) for its request for medical expenses and legal costs on MC-351.

Given the excessive deficiencies, the Court DENIES the Petition for Minor’s Compromise of Disputed Claim.

IV. Conclusion & Order

For these reasons,

The Petition for Approval of Minor’s Compromise filed on behalf of minor Claimant Chimchetaram Macauley-Ekpenisi is DENIED without prejudice.

Petitioner is ordered to give notice.

[1] Petition was improperly served on Defendant by Georgy Ekpenisi, who is a party to the action.