Judge: Latrice A. G. Byrdsong, Case: 22STLC05038, Date: 2024-01-17 Tentative Ruling

Case Number: 22STLC05038    Hearing Date: March 19, 2024    Dept: 25

Hearing Date:                         Tuesday, March 19, 2024

Case Name:                             CHIMCHETARAM MACAULEY-EKPENISI v. EMMANUEL TYRONE BULL

Case No.:                                22STLC05038

Motion:                                   Petition to Approve Minor's Compromise of Disputed Claim

Moving Party:                         Petitioner/ Guardian ad Litem, Georgy Ekpenisi; Minor Claimant Chimchetaram Macauley-Ekpenisi

Responding Party:                   None

Notice:                                    NO

Tentative Ruling:                    Petitioner/ Guardian ad Litem, Georgy Ekpenisi’s Petition to Approve Minor's Compromise of Disputed Claim on behalf of Minor Chimchetaram Macauley-Ekpenisi is CONTINUED TO APRIL 18, 2024 at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, the Petitioner must file and serve supplemental papers correcting the deficiencies noted in the Court’s order. Failure to do so will result in the Motion being placed off calendar or denied.

SERVICE: 

[X] Proof of Service Timely Filed (CRC, rule 3.1300)                      NO

[X] Correct Address (CCP §§ 1013, 1013a)                                      NO

[X] 16/21 Court Days Lapsed (CCP §§ 12c, 1005(b))                       NO 

OPPOSITION:          None filed as of March 06, 2024                    [   ] Late          [X] None 

REPLY:                     None filed as of March 12, 2024                    [   ] Late          [X] None 

BACKGROUND

On August 2, 2022, Plaintiff Georgy Ekpenisi (“Petitioner”) and minor Plaintiff Chimchetaram Macauley-Ekpenisi (“Minor Claimant” or “Claimant”) filed an action against Defendant Emmanuel Tyrone Bull (“Defendant”) relating to a motor vehicle accident that occured on November 5, 2021. Petitioner was appointed Claimant’s guardian ad litem on August 3, 2022.

On August 5, 2022, Petitioner filed an Expedited Petition to Approve Compromise of Disputed Claim. The Court denied the Expedited Petition on August 15, 2022. The Court additionally denied Petitioner’s Ex Parte Application for an Order Shortening Time for Hearing Plaintiff’s Expedited Petition for Minor’s Compromise.

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.

On March 30, 2023, Petitioner filed a second Petition to Approve Minor’s Compromise. On April 25, 2023, the Court noted several deficiencies in the Petition and continued the hearing to allow Petitioner an opportunity to correct these deficiencies.  

On May 30, 2023, after receiving no supplemental papers correcting the deficiencies noted in the 4-25-23 minute order, the Court denied the Petition for Approval of Minor’s Compromise.

On August 1, 2023, Petitioner filed a third Petition to Approve Minor’s Compromise (“Petition”). On October 23, 2023, the Court noted several deficiencies with the Petition and continued the hearing on the Petition to January 17, 2024.

On January 17, 2024, after receiving no supplemental papers correcting the deficiencies noted in the 10-23-23 minute order, the Court denied the Petition for Approval of Minor’s Compromise.

On February 01, 2024, Petitioner filed the instant Amended Petition for Approval of Compromise as to Minor Claimant (“Amended Petition”).

No opposition has been filed.

MOVING PARTY POSITION

Claimant, who is 5 years old, has agreed to settle his claim against the Defendant for $15,000.00. As a result of a car accident that happened on November 05, 2021, Claimant suffered ankle pain and bruises. Claimant was seen in an emergency room at Cedars-Sinai Medical Center where he received several x-rays before being discharged. The Petition asserts that Claimant has fully recovered from his injuries. Out of the settlement proceeds of $15,000.00, medical expenses of $4,389.81, attorney’s fees of $3,750.00, and Court fees and costs totaling $417.50 will be deducted, leaving Claimant with $6,442.69. The $6,442.69 will be deposited in insured accounts in one or more financial institutions in California, subject to withdrawal only upon the authorization of the Court.

OPPOSITION

            No opposition has been filed.

REPLY

            No reply has been filed.

ANALYSIS

I.          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 § 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. 

II.        Discussion   

Minor – Chimchetaram Macauley-Ekpenisi, 5 years old 

Guardian Ad Litem – Georgy Ekpenisi 

Defendants – Emmanuel Tyrone Bull 

Settlement:                                          $15,000.00 

Attorney’s Fees:                                  $3,750.00 

Litigation and Other Costs:                $417.50 

Medical Bills:                                      $4,389.81 

TOTAL TO BE PAID TO MINOR: $6,442.69 

General Requirements 

·         Petition on Form MC-350?                             YES 

·         Proposed Order on Form MC-351?                YES 

·         Proof of service on other parties?                       YES 

Type of injury, medical expenses 

Claimant Chimchetaram Macauley-Ekpenisi complained of ankle pain and bruises. (Amended Pet. p. 2, ¶¿7.)  Claimant received emergency care only and received several x-rays before being discharged. (Id. at ¶ 8; Attach. 8.)  The Petition further asserts that he has recovered completely and does not have any permanent injuries.  (Id. at ¶ 9.) 

·         Medical records documenting injuries and treatment?  No.

·         Negotiated reduction in medical liens?  Yes.  (Pet. p. 4, ¶ 13(b)(2)(f)(ii)(B).) 

·         Injuries completely healed?  Yes, the Petition asserts that the Claimant has completely recovered and there are no permanent injuries. (Pet. p. 2, ¶ 9.) However, the Court notes the following deficiency below.  

Handling of Funds 

How are settlement funds to be disposed of?  “$6,442.69 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 19b(2).” (Amended Pet. p. 8, 19(b)(2).)  Petitioner submits Attachment 19(b)(2), which identifies that the funds should be deposited to Bank of America, however the account cannot not open until the Court grants the Minor’s compromise and Order to Deposit Money. (Attach. 19(b)(2).)  However, the Court notes the following deficiency below.  

Attorneys’ Fees and Litigation Costs 

·         Attorneys’ fees requested?  Yes, 25% of total settlement. (Ekpenisi Decl. ¶ 8.) 

·         If yes, attorney declaration including factors under CRC 7.955(b)?  The Agreement provided in Attachment 15(a) indicates that counsel is entitled to a 33.3% fee. Counsel’s declaration states that Counsel’s office has further reduced the fee to $3,750.00 or a 25% fee. (Petition, Ekpenisi Decl ¶ 8.) 

·         Copy of retainer agreement? Yes. (Attach. 15(a).) 

·         Litigation costs requested?  Yes. (Pet. p. 6 ¶ 14(b).) 

·         Itemized?  Yes. (Id.)  

Here, the Court notes that Petitioner provides the Court with proof of service, indicating that service was rendered on Respondent by mail and by substituted service. (02/06/24 Proof of Service (not Summons and complaint).)

However, the Court notes the following deficiencies with the Petition:

(1)   Based on the date of birth and the filing of the instant Petition, Minor Claimant should be six (6) years old and not five (5) years old as noted line 2(c) of the Petition.  The Petition and related submissions should be updated accordingly;

(2)   The Petition appears to erroneously mark box 12(b) instead of box 12(a) indicating that Defendant is only paying Minor Claimant $15,000. If there are other persons besides the Minor Claimant receiving money from the Defendant, they need to be listed in item 12(b)(5), and an Attachment 12 should be included per item 12(b)(6). If not, then only box 12(a) needs to be marked;

(3)   The Petitioner does not provide any medical report that states that all the claimant’s injuries are resolved per the requirements noted in line 9 of the petition. The Court notes that this was previously noted in its 1-17-24 minute order regarding Petitioners 8-1-2023 Petition in which the Court found that,

Petitioner claims Claimant’s injuries included ankle pain and bruises and that the injuries are healed. However, the medical records submitted are not sufficient to demonstrate the injuries claimed in the Petition. (Pet. ¶¶ 7-10; pp. 11-18.) They only show an addendum to what Claimant’s mother wanted corrected on the record and demonstrate Claimant received x-rays and was discharged. Furthermore, there is no indication that minor Claimant has completely recovered from the injuries. (Id.)

(See. 01/17/24 Minute Order.);

(4)   Attachment 19(b)(2) does not include the branch and address of the specific Bank of America in which the deposited funds will be held. Although Attachment 19(b)(2) notes that the account cannot be established without a court order, this detail must still be identified as it is required;

(5)   Attachment 15(a) should be identified as Attachment 18(a); and

(6)   Lines 1, 4 and 5 of the proposed Order to Deposit Money Into Blocked Account should be completed.

For these reasons, the Court CONTINUES the hearing on the Petition for Minor’s Compromise submitted on behalf of Minor Claimant Chimchetaram Macauley-Ekpenisi.

II.        Conclusion

            Petitioner/ Guardian ad Litem, Georgy Ekpenisi’s Petition to Approve Minor's Compromise Disputed Claim on behalf of Minor Chimchetaram Macauley-Ekpenisi is CONTINUED TO APRIL 18, 2023 at 10:00 a.m. in Department 25 of the SPRING STREET COURTHOUSE.

At least 16 court days before the next scheduled hearing, Petitioner must file and serve supplemental papers correcting the deficiencies noted above. Failure to do so will result in the Motion being placed off calendar or denied.

Moving party is ordered to give notice.