Judge Kerry Bensinger, Case 20STCV38835 2023-05-09 Tentative Ruling

On October 13, 2020, plaintiff A.C. (“A.C.”) a minor (at the time this action was filed) by and through her Guardian Ad Litem Crystal H., and Crystal H. (“Crystal”) (collectively, “Plaintiffs”) filed this action against defendants Beacon Day School, Inc. (“Beacon”) and Joseph A. Andrade (Andrade) (collectively, “Defendants”), asserting causes of action for (1) negligence, (2) negligent hiring, supervision, and retention, (3) assault and battery, (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress-bystander, (6) § 504 Rehabilitation Act of 1973, (7) Unruh Civil Rights Act, (8) Unfair Business Practices, CA Code § 17200, and (9) California Education Code § 220.

On January 27, 2023, the Court granted Crystal’s petition for approval of compromise of action for person with disability on A.C.’s behalf. After payment of attorney’s fees and experts, the net settlement funds for A.C. amounts to $30,000. At the request of counsel, the Court also approved the holding of the net settlement funds in counsel’s client trust account to be spent for the benefit of plaintiff. Plaintiff’s counsel was ordered to submit the proposed spenddown plan on or before February 27, 2023.

Counsel filed a declaration on February 27, 2023 detailing the items of the proposed spenddown plan. The Court approved the spenddown plan on March 8, 2023 and set a hearing for May 9, 2023 to allow counsel to submit their receipts/reconciliation of the spenddown to match the net settlement proceeds.

On April 27, 2023, Counsel submitted a declaration with receipts and reconciling the spenddown.

d. Tempur-Pedic TEMPUR-ProAdapt Hybrid Mattress and TempurPedic TEMPUR-Ergo Extended Smart Adjustable Base with Sleep Tracker and shipping and assembly for $6,397.95

h. Retainer fee payment of approximately $10,000 for future legal services by an SSI benefit/disability attorney to work on issues regarding Petitioner’s SSI payments to the current housing and service providers.

i. The remaining balance of the settlement proceeds of approximately $5,000 to be given to the conservator as a lump sum payment to be used as an incidental fund for Petitioners’ future needs for meals, clothing, travel, and entertainment.

Counsel attaches the receipts to substantiate each of the following items purchased for A.C.:

f. Tempur-Pedic TEMPUR-ProAdapt Hybrid Mattress and TempurPedic TEMPUR-Ergo Extended Smart Adjustable Base with Sleep Tracker and shipping and assembly: $6,728.70

The total amount expended from A.C.’s settlement proceeds to date: $16,232.53.

Counsel declares that the specialized mattress and adjustable bed require additional expenditures for delivery, assembly, and installation, as well as cooperation with the facility from which the items were purchased. As such, Crystal is best suited to further schedule and pay for the necessary installation of the sensory bundle, which will take months to be manufactured and deliver. (Kim Decl., ¶¶ 3, 5.)

The spenddown plan also includes a retainer fee payment of $10,000 for future legal services by an SSI benefit/disability attorney to work on issues regarding A.C.’s SSI payments to the current housing and service providers. Counsel declares that Crystal met with several attorneys who work in the area of obtaining government benefits. Each indicated that they did not accept upfront retainer fees for this specific issue.

Based on the foregoing, Counsel requests permission to transfer the remaining settlement proceeds of $13,767.47 to Crystal as she is best positioned to coordinate the remaining logistics of the sensory bundle and to hire an attorney to help with A.C.’s SSI benefits. Counsel further requests that the Court grant Plaintiff’s request to dismiss the entire action with prejudice.

Based on the foregoing, the Court finds that Counsel has substantiated with documentation the purchase of each item identified in the spenddown plan. The Court also agrees with Counsel that Counsel is best suited to coordinate the remaining logistics of the sensory bundle and to hire counsel to address issues with A.C.’s SSI benefits.

Accordingly, the request to transfer the remaining settlement proceeds of $13,767.47 to A.C.’s conservator and mother, Crystal H. is GRANTED.

The request to dismiss this action with prejudice is GRANTED, pending filing of a Request for Dismissal on Form CIV-110 and all outstanding court fees.

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

[1] Counsel further states: “The proposed amounts on items are approximate since the price, tax, shipping and assembly service of an item can fluctuate over time. [¶] Further, the legal service payment to an SSI benefit/disability attorney on behalf of Petitioner and the amount of incidental fund are also estimates since the conservator has not yet hired an attorney—which will be submitted to Court once the conservator contracts with an attorney that specializes in SSI benefits and provides a retainer agreement.” (Spenddown Plan, Kim Decl., ¶¶ 6, 7.)