Judge Lisa R. Jaskol, Case Number: 21STCV10874, Date: 2023-09-28 Tentative Ruling

Judge: Lisa R. Jaskol, Case: 21STCV10874, Date: 2023-09-28 Tentative Ruling

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Case Number: 21STCV10874 Hearing Date: November 17, 2023 Dept: 28

Claimant Heidi Kralik (“Claimant”) had an allergic reaction to a sunflower butter sandwich which Defendant served to her even though Defendant knew about Claimant’s allergy.

This is an expedited petition without a hearing, which is permitted under California Rules of Court, rule 7.950.5, as long as Petitioner Kim Flum (“Petitioner”) uses the required Judicial Council forms and meets certain conditions. The conditions are:

1. Petitioner is represented by an attorney.

2. The claim is not for wrongful death.

3. Settlement proceeds will not be placed in a trust.

4. There are no unresolved liens.

5. Petitioner’s attorney did not become involved at the request of Defendant or the insurance carrier.

6. Petitioner’s attorney is not employed by or associated with a Defendant or insurance carrier in connection with the petition.

7. If an action is filed, all Defendants that have appeared are participating in the compromise OR the court has determined the settlement to be in good faith.

8. The settlement, exclusive of interests and costs, is $50,000 or less OR if greater than $50,000, the amount payable is the insurance policy limits AND all proposed contributing parties would be substantially unable to use assets other than the insurance policy limits AND the court does not otherwise order.

SETTLEMENT: $15,000.00

INJURIES: Anaphylaxis, vomiting and extreme allergic reaction

MEDICAL EXPENSES: $4,000.00

COSTS: $435.00

ATTORNEY’S FEES: $3,750.00, which is 25% of the gross settlement.

BALANCE OF PROCEEDS: $6,815.00

DISCUSSION:

Section 13a of the petition states that total medical expenses were $4,000.00, this amount was paid, and none of this amount will be reimbursed from the settlement proceeds. Section 13f(1) states there are no contractual or statutory liens for payment of the medical expenses. However, Section 17b states that $4,000 in medical expenses will be paid from the settlement proceeds. These statements are inconsistent and should be clarified.

Section 13 of the petition indicates that private insurance paid the medical expenses. (See Section 13b(1), 13c(1), 13g(2).) However, Section 15b of the petition states that Petitioner paid the medical expenses. Petitioner should clarify these inconsistent statements.

In addition, the petition does not include any attachments or evidence to support the statements made in the petition. For example, Section 13a of the Judicial Council petition form states: “Identify each medical expense payer and the amount each paid, and explain any differences between items 13a(1), (4), and (5) in Attachment 13a.” The petition has no attachment and does not provide this information.

Section 13d of the petition asks if the claimant's health plan is requesting reimbursement for medical expenses paid under the plan and, if so, the amount of reimbursement. Petitioner wrote “0” but did not comply with the form’s instruction to “Attach statements from the plan showing expense payments and requesting reimbursement.” Petitioner did not attach any statements showing that a health plan paid any of the medical expenses or waived its right to be reimbursed for those payments. If private insurance paid some or all of the medical expenses, the petition must either (1) provide evidence that the private insurance company has waived its right to reimbursement or agreed to accept a reduced amount or (2) show that the private insurance company will be reimbursed from the settlement proceeds.

For the reasons stated above, the Court denies the petition.