Judge Katherine Chilton, Case 22STLC05038 2023-04-25 Tentative Ruling

Judge: Katherine Chilton, Case: 22STLC05038, Date: 2023-04-25 Tentative Ruling

Case Number: 22STLC05038 Hearing Date: April 25, 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 hearing on the Petition for Approval of Minor’s Compromise filed on behalf of minor Claimant Chimchetaram Macauley-Ekpenisi is CONTINUED to MAY 30, 2023 at 10:00 A.M. in Department 25 at the SPRING STREET COURTHOUSE. At least 16 court days before the next scheduled hearing, Petitioner must file and serve supplemental papers addressing the errors discussed herein. Failure to do so may result in the Motion 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 April 23, 2023. [ ] Late [X] None

REPLY: None filed as of April 23, 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 a Petition to Approve Minor’s Compromise of Disputed Claim. On January 18, 2023, the Court denied the Petition due to excessive deficiencies. (1-18-23 Minute Order.)

On March 30, 2023, Petitioner filed the instant Petition to Approve Minor’s Compromise (“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 filed on March 30, 2023, sets out the following information:

Minor –Chimchetaram Macauley-Ekpenisi, 5 years old

Guardian Ad Litem – Georgy Ekpenisi

Defendant – Emmanuel Tyrone Bull

Settlement: $15,000.00

Attorney’s Fees: $3,750.00

Litigation Costs: $433.20

Medical Bills: $4,389.81

TOTAL TO BE PAID TO MINOR: $6,426.99

General Requirements

· Petition on Form MC-350? YES

· Proposed Order on Form MC-351? YES

· Proof of service on other parties? NOT OK

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? (Pet pp. 11-18 - Attachs. 8-9a.)

· Negotiated reduction in medical liens? Yes. (Pet. ¶ 13a-b, pp. 19-26.)

· 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? “There is no guardianship of the estate of the minor…Petitioner requests that the balance of the proceeds of the settlement or judgment be disbursed as follows: $6,426.99 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).) Petitioner has filed Attachment 19b(2), indicating that “Bank Account not yet open.” (Pet. p. 34 – Attach. 19b(2).)

Attorneys’ Fees and Litigation Costs

· Attorneys’ fees requested? Yes. (Pet. ¶ 17c.)

· If yes, attorney declaration including factors under CRC 7.955(b)? None.

· Copy of retainer agreement? Yes. (Pet. pp. 27-30; Attach. 15(a).)

· Litigation costs requested? Yes. (Pet. ¶ 14b; Pet. pp. 31-33.)

o Itemized? Yes. (Pet. ¶ 14b; Pet. pp. 31-33.)

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

1. Petitioner has not listed all individuals involved in the accident in MC 350 ¶ 5c.

2. Petitioner has checked box MC 350 ¶ 12a, but filled out information in ¶ 12b.

3. In box MC 350 ¶ 13b(2), Petitioner does not indicate the type of plan or health insurance that has paid the minor’s medical expenses.

4. Petitioner has checked box MC 350 ¶ 15a, but filled out information in ¶ 15b.

5. Petitioner indicates that counsel “does expect to receive attorney’s fees or other compensation in addition to that requested in this petition,” but lists the amounts as $0. (MC-350 ¶ 18f.) Petitioner should check “does not…expect to receive attorney’s fees or other compensation.” (Ibid.)

6. The medical records submitted are not sufficient to demonstrate the injuries claimed in the Petition. (Pet. ¶¶ 7-10; pp. 11-18.) Furthermore, there is no indication that minor Claimant has completely recovered from the injuries. (Ibid.)

7. Petitioner’s counsel has not filed a declaration in support of request for attorney’s fees pursuant to CRC 7.955(b).

8. Petitioner has submitted Attachment 19b(2) but has not provided any information about the account where the funds will be deposited.

9. Service is deficient for several reasons. (Pet. p. 35.) First, Petition was improperly served on Defendant by Georgy Ekpenisi, who is a party to the action. (Ibid.) Second, Proof of Service indicates that self-represented Defendant was served by electronic transmission, yet Defendant’s email is not listed. (Ibid.) Third, Code of Civil Procedure § 1010.6 authorizes service of documents by electronic service (service by e-mail) in certain enumerated circumstances. Code of Civil Procedure § 1010.6(a)(2)(A)(ii) provides, “[f]or cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized” only: (1) “if a party . . . has expressly consented to receive electronic service in that specific action”, (2) “if . . . the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d)”, or (3) “if . . . the document is served electronically pursuant to the procedures specified in subdivision (e)”, that is, electronic service is made upon a party who is represented by counsel. (Code Civ. Proc., §§ 1010.6(a)(2)(A)(ii), (c), (d), (e).) Here, Defendant is self-represented and there is no proof that he has consented to service by email.

10. At the top of MC-351, Petitioner has incorrectly checked “Compromise of Pending Action” instead of “Disputed Claim.” (MC-351 p. 1.)

11. Petitioner has provided inaccurate information in MC-351 ¶ 2b regarding the hearing date.

12. Petitioner has incorrectly listed litigation costs as $443.20, instead of $433.20 in MC-351 ¶ 7c(1)(b).

13. Petitioner has improperly listed litigation costs in MC-351 ¶ 7c(1)(c)(ii).

Given these deficiencies, the Court CONTINUES the hearing on the Petition for Minor’s Compromise of Disputed Claim and orders Petitioner to correct these deficiencies.

IV. Conclusion & Order

For these reasons,

Petitioner is ordered to give notice.