Judge Kerry Bensinger, Case 20STCV24184 2023-03-23 Tentative Ruling

Claimant Kyra De Mesa (“Claimant”), a minor, by and through their parent and guardian-ad-litem, John De Mesa (“Petitioner”), agrees to release their claims against Defendants David Benjamin James (“James”) and Kerstin O’Leary (“O’Leary”) for injuries Claimant sustained from a dog bite. James was the owner of the dog and the premises where the incident occurred. Claimant was under O’Leary’s supervision at the time of the incident. Under the proposed settlement, James agrees to pay $100,000 and O’Leary agrees to pay $31,000 for a gross total amount of $131,000 to Claimant.

Court approval is required for all settlements of a minor’s claim. (Probate Code, §§ 3500, 3600, et seq.; Code Civ. Proc., § 372.)

If approved, $9,394.25 will be used to pay medical expenses, $52,000 will be used to pay for attorney’s fees, and $10,713.84 will be used to pay advanced litigation costs, leaving a balance of $58,891.91 to be deposited in insured accounts in one or more financial institutions in this state, subject to withdrawal only on authorization of the court. However, there is no Attachment 18(b)(2) specifying the name, branch, and address of each depository. Despite this deficiency, the Court proceeds to review the petition.

The petition indicates that the medical expenses to be paid from the proceeds of the settlement is partly comprised of a $7,600 lien from medical provider Med-Net Medical Services (“Med-Net”). Med-Net conducted an independent medico-legal psychological evaluation of Claimant. In Attachment 12b(5), counsel for Claimant requests that the Court determine the proper amount of reimbursement to Med-Net. Counsel declares that Med-Net seeks reimbursement for the full amount of the claimed lien, which is grossly excessive, and that Med-Net refuses to negotiate the lien. Counsel further declares that $1,600 represents a fair amount of the services rendered by Med-Net. (See Petition, Attachment 12b(5), ¶ 2.) Counsel provides several compelling reasons why $1,600 is a fair reimbursement amount, but does not provide the legal basis upon which the Court may reduce a private medical provider’s fee for services rendered. Accordingly, the Court declines to determine whether Med-Net’s lien should be reduced.

Claimant is represented by Joseph Pourshalimy and Scott E. Spell. Mr. Pourshalimy handled the pre-litigation aspects of the case and Mr. Spell handled the litigation phase of the case. Mr. Spell seeks approval of $52,000 in attorney’s fees, which represents roughly 40% of the net settlement amount, and which is to be divided between Mr. Pourshalimy and Mr. Spell pursuant to the retainer agreement and the Consent to Representation and Division of Costs and Fees. In support of the reasonableness of the fee, Mr. Spell points out, among other things, that (1) the case was heavily litigated for almost two and a half years, which included four depositions, seven motions and applications, retention and designation of experts, full trial work-up and preparation, and mediation; (2) the fee is far less than what the reasonable value of his services would be had the legal services been billed at his hourly rate of $550; (3) obtaining a $131,000 recovery with past medical specials of $11,505.73 is less than other attorneys routinely do; and (4) the fee was discussed with the Claimant’s representative at the time of retention and in connection with the proposed settlement. (Petition, Attachment 13a.)

Based on the foregoing, the Court finds that Mr. Spell supports an attorney’s fee award of $52,000. However, because the Court has found that the petition does not indicate where the settlement funds are to be deposited (Attachment 18(b)(2)), the Court cannot approve the petition at this time.

Accordingly, the hearing on Petition to Confirm Minor’s Compromise is CONTINUED to April 4, 2023, at 1:30 p.m. in Department 27 of the Spring Street Courthouse to allow Claimant to file the missing attachment.

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.

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.

Hon. Kerry Bensinger

Judge of the Superior Court