Judge: Lisa R. Jaskol, Case: BC667551, Date: 2023-08-30 Tentative Ruling
Case Number: BC667551 Hearing Date: September 26, 2023 Dept: 28
Having considered the petitioning papers, the Court rules as follows.
BACKGROUND
On July 10, 2017, Plaintiff Joshua Seth Hernandez (“Plaintiff”), by and through his guardian ad litem Dalia Gamboa, filed this action against Defendants Nathan Harris (“Harris”), Phenix Transportation West Inc (“PTW”), Phenix Transportation, Inc (“PT”), and Does 1-50 for motor vehicle tort.
On December 28, 2017, PTW filed an answer. On January 25, 2018, PT filed an answer.
On July 3, 2018, Plaintiff filed a first amended complaint adding Defendant Daphne P. Wilkerson.
On August 28, 2018, Plaintiff filed a second amended complaint, adding a cause of action for negligent hiring, supervision, or retention and adding Defendant Peco Foods, Inc.
On September 18, 2018, PT and PTW filed an answer.
On January 2, 2019, PT filed a notice of bankruptcy stay. On June 11, 2019, the Court lifted the bankruptcy stay.
On February 1, 2019, the Court sustained the demurrer of Peco Foods, Inc. without leave to amend and dismissed Peco Foods, Inc. without prejudice.
On May 6, 2019, the Court dismissed Daphne P. Wilkerson without prejudice at Plaintiff’s request.
On November 18, 2019, the Court found that this case (case no. BC667551) and case no. 19STCV20639 are related within the meaning of California Rules of Court, rule 3.300(a). On February 10, 2022, the Court found that this case (case no. BC667551) and case no. 19STCV19913 are related within the meaning of California Rules of Court, rule 3.300(a).
On February 20, 2020, Harris filed an answer to the second amended complaint.
On March 30, 2022, the matter was called for trial. On April 7, 2022, the jury returned a verdict. On May 20, 2022, the Court entered judgment on the verdict in favor of Plaintiff, by and through his guardian ad litem, and against Harris, PTW and PT.
On July 17, 2023, Petitioner Dalia Gamboa (“Petitioner”) filed a petition to approve the compromise of Plaintiff’s pending action, to be heard on August 30, 2023. On August 23, 2023, Petitioner filed an amended petition to approve the compromise of Plaintiff’s action. The petition includes a request to pay or transfer the settlement proceeds “to the trustee of a special needs trust established under Probate Code section 3604" for Plaintiff's benefit.
On August 30, 2023, the Court continued the hearing to September 26, 2023, to give the Court’s Probate Legal Unit an opportunity to review the special needs trust instrument.
PARTY’S REQUEST
Petitioner Dalia Gamboa asks the Court to approve the compromise of the pending action of Plaintiff Joshua Seth Hernandez.
DISCUSSION
The Court’s Probate Legal Unit has reviewed the SNT instrument and found that it is ready for approval. The proposed order will require some relatively minor modifications, discussed below.
The Court grants the amended petition to approve the compromise of Plaintiff’s case and approves the creation and funding of a special needs trust (SNT) using the settlement proceeds. The Court finds that:
• The SNT
beneficiary has a disability which substantially impairs the individual’s
ability to provide for his own care or custody and constitutes a substantial
handicap;
• The SNT
beneficiary is likely to have special needs that will not be met without the
trust;
• 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.
The proposed trustee is not required to post a bond. The Court grants Petitioner’s request for the trustee to have authority to invest in proprietary funds, mutual funds, and bonds with maturity dates greater than five years to provide for diversification and a higher rate of investment return. (Attachment 18b(4), court’s pdf at p. 324.)
The proposed order should be modified to include the following:
· Trust accounting is required in one year. The Court will set a calendar due date for
filing in 14 months.
· Notice of Commencement of Proceedings for a Court
Supervised Trust on LASC Form PRO 044 must be filed within 60 days.
· The Court will set an OSC in approximately 60 days to ensure funding of settlement, purchase of annuity if relevant, and filing of LASC Form PRO 044 to open trust supervision action in probate.
CONCLUSION
The Court GRANTS the amended petition to approve the compromise of Plaintiff Joshua Seth Hernandez’s pending action, filed by Petitioner Dalia Gamboa on August 23, 2023, subject to the Court’s review of the revised order that Petitioner is to submit to the Court.
The net balance is ordered distributed according to the special needs trust instrument.
The Court sets an Order to Show Cause Re: Opening of Probate Case for 11/27/2023 at 08:30 AM in Department 28 at Spring Street Courthouse.
The due date for the accounting is November 27, 2024.
Petitioner is ordered to give notice of this ruling.
Petitioner is ordered to file the proof of service of this ruling with the Court within five days.