Judge: Kerry Bensinger, Case: 20STCV19153, Date: 2023-05-09 Tentative Ruling

Case Number: 20STCV19153    Hearing Date: May 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

            On January 26, 2023, the Court reviewed and approved in part the Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Person with a Disability.[1]  Plaintiff and Claimant, Shirlene Bjorling is a 56 years and incapacitated adult.  Claimant, by and through her Guardian Ad Litem, Gary Bjorling (“Petitioner”), agreed to settle her claims against Defendant Robyn Reed in exchange for $1,250,000.00.  The Court previously approved $144,256.13 for medical expenses, $125,000.00 for attorney’s fees, and $38,868.09 for nonmedical expenses, leaving a balance of $941,875.78 for Claimant, which Claimant requests to be deposited in a special needs trust, identified as the “Shirlene Bjorling Special Needs Trust,” attached to the present Petition as Attachment 19(b)(4). 

          The present amended petition filed on April 10, 2023 is the result of previous review by the Court and the Court’s Probate Department. Both the Court and the Court’s Probate Department have now reviewed the April 10, 2023 petition and find as follows.

I.            Special Needs Trust

If funds are distributed to a special needs or other trust, the probate department must review the terms of the trust. Local Rule 4.115(c) provides in relevant part:

“(c) Special Needs Trusts and Other Trusts. When the settlement proposes the establishment of a special needs trust, minor’s trust, or other trust as provided in Probate Code sections 3600 to 3612, the terms of the proposed trust must be reviewed by the Probate Division. The terms of the trust must include the provisions required in California Rules of Court, rule 7.903, and Local Rule 4.116.” 

(Local Rule 4.115(c).) 

          The Probate Department has reviewed the trust and based thereon the Court finds the trust instrument meets the legal requirements and is ready for approval. Specifically, there is an adequate payback provision in Article II, Section 3 and it meets the requirements of (CRC), Rule 7.903(c) and Local Rule 4.116(b).)

II.          Trustee and Bond

The trust instrument indicates that Shoushan Movsesian, a private professional fiduciary in Glendale, California, will be the initial trustee.  Normally, bond must be required of a trustee unless the trustee is a corporate fiduciary.  (California Rules of Court, Rule 7.903(c)(5), Probate Code section 2320.)  Movsesian does not meet the requirement of a corporate fiduciary and bond is required.  As part of the trust briefing, petitioner calculates bond as $1,050,013 (rounded up to $1,051,000 in the proposed order) based upon the initial funding of the trust plus anticipated annual income and an additional amount required for any costs of recovery on the bond.  This amount appears to be sufficient.  Accordingly, the Court requires $1,051,000 bond to be posted in this department by trustee. 

III.        Additional Requested Relief

Petitioner requests that the Court order under Probate Code Section 2574(c) that the Trustee may invest in mutual funds and in bonds that mature in more or less than five years to better diversify the investments of the Trust. This request is common where there the SNT is a considerable amount and there is a need for broader investment authority and thus the Court grants this request.

Petitioner also requests authority to pay $4,500 to attorney Randolph Sharon for drafting of the proposed trust instrument and related portions of the petition. Normally, such fee requests are approved for compromise petitions involving special needs trusts or minor’s settlement trusts.  The request is within the usual $3,500 to $6,500 range and thus is granted.

IV.         Findings

The Court makes the following findings pursuant to Probate Code section 3604(b) based on factual allegations in the Petition to Approve Compromise and its attachments supporting the settlement:

1. The SNT beneficiary has a disability which substantially impairs the individual’s ability to provide for her own care or custody and constitutes a substantial handicap;

2. The SNT beneficiary is likely to have special needs that will not be met without the trust; and

3. The money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the SNT beneficiary’s special needs.

V.           Notice

When seeking approval of a SNT, notice of the hearing and service of the petition must be made upon three state agencies including the Department of Mental Health, Department of Developmental Services, and Department of Health Care Services. (Probate Code §§ 3602(f), 3611(c).) A separately filed proof of service indicates service to the three state agencies and notice is complete.

VI.         CONCLUSION

The Court GRANTS the petition.  However, the following defects need to be remedied and the following dates need to be added:  

(1)  The petition indicates a proposed Medi-Cal reimbursement but Petitioner did not complete Section 8b(3) of the proposed order requiring that reimbursement. This should be filled in.

(2)  Proof of posting of the bond.

(3)  A 14-month calendar date as a due date in the blank in Attachment 13, paragraph 12, for the first SNT accounting in probate.

(4)  A specific 60 day calendar date in the blank provided in Attachment 13, paragraph 8.

(5)  A specific OSC date in the blank provided in Attachment 13, paragraph 10.]

Per California Rules of Court, Rule 7.952, Petitioner and Claimant must appear at the hearing, unless the Court finds good cause to excuse their appearance.  The Court finds that Claimant’s appearance is not necessary, but will require Petitioner to appear.

Petitioner is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Dated this 9th day of May 2023