Judge: Katherine Chilton, Case: 22STLC05960, Date: 2023-02-28 Tentative Ruling

Case Number: 22STLC05960    Hearing Date: February 28, 2023    Dept: 25

PROCEEDINGS:      PETITION FOR MINOR’S COMPROMISE

MOVING PARTY:   Petitioner Artina Thomas on behalf of Minor Claimant Drew Thomas

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 Drew Thomas is CONTINUED to MARCH 30, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Petitioner is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

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 February 26, 2023.                     [   ] Late                      [X] None

REPLY:                     None filed as of February 26, 2023.                     [   ] Late                      [X] None

ANALYSIS:

I.                Background

            On September 13, 2022, Minor Plaintiff Drew Thomas (“Claimant”) filed an action against Defendant USAA Insurance (“Defendant”) arising out of a motor vehicle accident on May 21, 2021.  Artina Thomas was appointed Claimant’s guardian ad litem on September 21, 2022.

            On October 27, 2022, Claimant, through his guardian ad litem, filed the instant Petition to Approve Minor’s Compromise of Disputed Claim (“Petition”).

            On January 18, 2023, the Court noted that there were several deficiencies and continued the hearing on the Petition to February 28, 2023.  (1-18-23 Minute Order.)

            On the same day, Petitioner filed amended papers.  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 – Drew Thomas, 10 years old

Guardian Ad Litem – Artina Thomas

Defendants – USAA Insurance

            Settlement:                                          $10,000.00

            Attorney’s Fees:                                  $2,500.00

            Litigation Costs:                                 $303.40

            Medical Bills:                                     $1,083.86

            TOTAL TO BE PAID TO MINOR:             $6,112.74

            General Requirements

·       Petition on Form MC-350?                 YES

·       Proposed Order on Form MC-351?      YES

·       Proof of service on other parties?       Not all documents have been served.

Type of injury, medical expenses

Minor Claimant Drew Thomas suffers from “headaches, neck, nightmares, trouble sleeping.” (Pet. ¶ 6.)  Claimant visited the emergency room and had “2 follow up visits with doctor.”  (Pet. ¶ 7.)

·       Medical records documenting injuries and treatment?  Yes.  (Pet. pp. 11-33.)

·       Negotiated reduction in medical liens?  Yes.  (Pet. ¶¶ 12a(3), 12b(5)(b)(i)(E), 12b(5)(b)(ii)(E); Pet. pp. 34-36.)

·       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 ¶ 8; Pet. pp. 12-13.)

Handling of Funds

How are settlement funds to be disposed of?  “$6,112.74 to be deposited in insured accounts in one or more financial institutions in this state, subject to withdrawal only on authorization of the court. The name, branch, and address of each depository are specified in Attachment 18b(2).” (Pet. ¶ 18b(2); Pet. p. 40: Attach. 18b(2); MC-355, MC-356.)

Attorneys’ Fees and Litigation Costs

·       Attorneys’ fees requested?  Yes, 25% of total settlement.  (Pet. ¶ 13a; Pet. p. 37: Attach. 13a – Wabby Decl.)

·       If yes, attorney declaration including factors under CRC 7.955(b)? Yes. (Pet. p. 37: Attach. 13a – Wabby Decl.)

·       Copy of retainer agreement? Yes.  (Pet. pp. 38-39 – Attach. 17a.)

·       Litigation costs requested?  Yes.  (Pet. ¶ 13b.)

o   Itemized?  Yes.  (Pet. ¶ 13b.)

On January 18, 2023, the Court noted the following deficiencies:

1.     On Form MC-350, Petitioner has not checked ¶ 1b indicating that she is the parent and guardian ad litem for Minor Claimant.  Similarly, she has not checked “guardian ad litem” in ¶ 2 on Proposed Order, Form MC-351.

2.     Petitioner has erroneously checked box 3a, instead of 3b on MC-350.

3.     Petitioner indicates that Minor Claimant’s injuries have completely healed; however, she has not submitted any evidence to support this contention.  (Pet. ¶ 8.)

4.     Petitioner indicates that medical expenses include $200.00 to be paid to Pacific Core Wellness; however, there is no evidence to support this request.  (Pet. ¶ 12b(5)(b)(ii).)

5.     Petitioner’s counsel’s declaration does not sufficiently address factors under CRC 7.955(b).  (See Pet. p. 11, Attach. 13a - Wabby Decl.)

6.     Petition has not filed a Proof of Service showing that Respondent has been served with the Petition and supporting documents.

7.     Petitioner has not completed ¶ 1b on Form MC-351.

8.     Petitioner has not completed ¶ 1 on Form MC-355.

The Court finds that Petitioner has filed additional documents addressing many of the deficiencies noted in the Court’s previous Order.  However, the following deficiencies remain:

1.     Petitioner has not checked “guardian ad litem” in ¶ 2 on Proposed Order, Form MC-351 and ¶ 3 of Order to Deposit Funds in Blocked Account, MC-355.

2.     The Proof of Service filed by Petitioner indicates that Respondent has only been served with the Petition and not the additional documents filed by the Petitioner.

3.     There is no Proof of Service filed showing that USAA Insurance has been served with Summons and Complaint in the action.

Given these deficiencies, the Court once again CONTINUES the hearing on the Petition for Minor’s Compromise of Disputed Claim.

IV.           Conclusion & Order

For these reasons,

The hearing on the Petition for Approval of Minor’s Compromise filed on behalf of minor Claimant Drew Thomas is CONTINUED to MARCH 30, 2023 at 10:30 a.m. in Department 25 at the SPRING STREET COURTHOUSE.  Petitioner is ordered to file supplemental papers addressing the issues discussed herein at least 16 court days before the next scheduled hearing.

Petitioner is ordered to give notice.