Judge: Lynette Gridiron Winston, Case: 23PSCV01289, Date: 2024-12-12 Tentative Ruling
Case Number: 23PSCV01289 Hearing Date: December 12, 2024 Dept: 6
CASE NAME: D.C., a minor, by and through him [sic]
guardian ad litem, Olivia C., v. West Covina Unified School District, et al.
Petitioner Raymond Mena’s Petition
for Approval of Compromise of Claim or Action or
Disposition of Proceeds of Judgment for Minor or Person with a Disability
TENTATIVE RULING
The Court DENIES Petitioner Raymond Mena’s petition for minor’s compromise without prejudice.
Petitioner is ordered to provide notice of the Court’s ruling and file proof of service of same within five days of the Court’s order.
BACKGROUND
This is a dog bite case. On April 28, 2023, plaintiff Alexis Mena (Claimant), a minor by and through her Guardian Ad Litem, Raymond Mena (Petitioner), filed this action against defendants Jesus Romero, Maria Romero (collectively, Defendants), and Does 1 to 25, alleging causes of action for general negligence and strict liability.
On December 21, 2023, Claimant filed a notice of settlement. On October 11, 2024, Petitioner filed a petition for minor’s compromise. The petition is unopposed.
LEGAL STANDARD
Court approval is required for all settlements of a
minor's claim or that of a person lacking the capacity to make decisions.
(Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., § 372; see Pearson
v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.) "[T]he
protective role the court generally assumes in cases involving minors, [is] a
role to assure that whatever is done is in the minor's best interests . . . .
[I]ts primary concern is whether the compromise is sufficient to provide for
the minor's injuries, care and treatment." (Goldberg v. Superior Court
(1994) 23 Cal.App.4th 1378, 1382.)
A petition for court approval of a compromise under
Code of Civil Procedure section 372 must comply with California Rules of Court
Rules 7.950, 7.951, and 7.952. The petition must be verified by the petitioner
and contain a full disclosure of all information that has "any bearing
upon the reasonableness" of the compromise or the covenant. (Cal. Rules of
Court, rule 7.950.) The person compromising the claim on behalf of the person
who lacks capacity, and the represented person, must attend the hearing on compromise
of the claim unless the court for good cause dispenses with their personal
appearance. (Cal. Rules of Court, rule 7.952(a).) An order for deposit of funds
of a minor or person lacking decision-making capacity and a petition for the
withdrawal of such funds must comply with California Rules of Court Rules 7.953
and 7.954. (Cal. Rules of Court, rule 3.1384; see also Super. Ct. L.A. County,
Local Rules, rules 4.115-4.118.)
DISCUSSION
Form MC-350 (Rev. January 1, 2021)
The Petition has been verified by Petitioner and presented on a fully completed mandatory Judicial Council Form MC-350, using the current January 1, 2021 revision. (Cal. Rules of Court, rule 7.950.)
Settlement
Claimant has agreed to settle this action against Defendants in exchange for $100,000.00, $48,182.06 of which will go to Claimant. If approved, $40,000.00 will be paid in attorney’s fees, $5,274.98 will be paid for reimbursement of litigation costs advanced by Claimant’s attorneys, and $6,542.96 will paid for medical expenses, leaving a balance of $48,182.06 for Claimant, to be deposited into a blocked account at Chase Bank.
The Court has reviewed the proposed settlement and finds the Petition contains a full disclosure of all information that has any bearing upon the reasonableness of the settlement amount to Claimant.
Attorney's Fees
The retained attorney's information has been disclosed as required by Rule of Court 7.951. (Petition, ¶ 17, subd. (b).) There is an agreement for services provided in connection with the underlying claim. (Petition, ¶ 17, subd. (a)(2).) Copies of the agreements were submitted with the Petition as strictly required by Rule of Court 7.951(6). (Attach. 17a.)
Petitioner’s counsel seeks to
recover $40,000.00 in attorney's fees. (Petition, ¶ 13, subd. (a), Attach.
13a.) Counsel has provided a declaration addressing the reasonableness of the
fee request, as required by Rule 7.995, subdivision (c), of the California
Rules of Court, accounting for the factors specified in Rule 7.995, subdivision
(b), of the California Rules of Court. Rule 7.955, subdivision (b), provides:
(b) Factors the court may
consider in determining a reasonable attorney's fee. In determining a
reasonable attorney's fee, the court may consider the following nonexclusive
factors:
(1) The fact that a minor or
person with a disability is involved and the circumstances of that minor or
person with a disability.
(2) The amount of the fee in
proportion to the value of the services performed.
(3) The novelty and difficulty of
the questions involved and the skill required to perform the legal services
properly.
(4) The amount involved and the
results obtained.
(5) The time limitations or
constraints imposed by the representative of the minor or person with a
disability or by the circumstances.
(6) The nature and length of the
professional relationship between the attorney and the representative of the
minor or person with a disability.
(7) The experience, reputation,
and ability of the attorney or attorneys performing the legal services.
(8) The time and labor required.
(9) The informed consent of the
representative of the minor or person with a disability to the fee.
(10) The relative sophistication
of the attorney and the representative of the minor or person with a
disability.
(11) The likelihood, if apparent
to the representative of the minor or person with a disability when the
representation agreement was made, that the attorney's acceptance of the
particular employment would preclude other employment.
(12) Whether the fee is fixed,
hourly, or contingent.
(13) If the fee is contingent:
(A) The risk of loss borne by the
attorney;
(B) The amount of costs advanced
by the attorney; and
(C) The delay in payment of fees
and reimbursement of costs paid by the attorney.
(14) Statutory requirements for representation agreements applicable to particular cases or claims.
(Cal. Rules of Court, rule 7.955, subd. (b).) The Court addresses these factors below.
Amount of Fee in Proportion to Value of Services Performed
Claimant's counsel contends that a contingency fee of 40% of the sum recovered on behalf of the Claimant is reasonable based on the amount of work performed in this case, and estimates having performed more than 40 hours doing that work. (Attach. 13a, ¶¶ 5-6.)
Novelty and Difficulty
Claimant’s counsel does not address the novelty or difficulty of this case. (See generally, Attach. 13a.)
Amount Involved and Results Obtained
Claimant’s counsel states that Defendants will pay a total of $100,000.00. (Attach. 13a, ¶ 3.)
Nature and Length of Professional Relationship
Claimant’s counsel does not mention the nature and length of the professional relationship with Claimant. (See generally, Attach. 13a.)
Experience, Reputation, and Ability of Counsel
Claimant’s counsel does not explain his experience, reputation, or ability. (See generally, Attach. 13a.)
Time and Labor Required
Claimant’s counsel indicates having spent more than 40 hours working on this case. (Attach. 13a, ¶ 6.)
Acceptance of Case Precluding Other Employment
Claimant’s counsel does not mention whether acceptance of this case precluded other employment.
Contingent Fee
Claimant’s counsel states this case was taken on a contingency basis. (Attach. 13a, ¶ 2.) The contingency fee amounts to 40%. (Attach. 13a, ¶ 4.)
California Rules of Court, rule 7.955, "requires a trial court, in determining reasonable attorney fees, to balance an attorney's interest in fair compensation with the protection of the interests of a minor client. Thus, a trial court 'must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor or person with a disability and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made.' " (Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1176-1177 (Schultz), quoting Cal. Rules of Court, rule 7.955(a)(2).)
The Court has considered the factors listed in rule 7.955 and concludes that Claimant’s counsel has not adequately demonstrated the reasonableness of the fee award in light of the factors and circumstances in this case at the time the agreement was signed. This appears to be a straightforward dog bite case that does not present any unusual challenges. There was little to no risk that there would be no recovery. The Court finds the 40% contingency fee excessive considering these factors, as well as the amount of work expended in this case. (See Attach. 13a, ¶¶ 4, 6.) The Court further finds that an attorney's fee award of 33 1/3 percent of the gross settlement amount is reasonable in this case.
Medical Bills
Claimant has incurred $10,172.28 in medical expenses, but the medical service providers have agreed to reduce their liens to a total of $6,542.96. (Petition, ¶ 12, subds. (a)(1), (a)(5).)
Costs
Claimant’s counsel seeks to recover $5,274.98 in costs that it advanced. (Petition, ¶ 13, subd. (b), Attach. 13b.)
Amount to Be Paid to Claimant
The net amount to be paid to Claimant is $48,182.06. (Petition, ¶ 15.)
Disposition of Balance of Proceeds
Petitioner requests that the net proceeds, $48,182.06, be deposited into a blocked account at Chase Bank. (Petition, ¶ 18, subd. (b)(2), Attach. 18b(2).)
Court Appearance
California Rule of Court 7.952 requires attendance by the petitioner and claimant unless the court for good cause dispenses with their personal appearance. The Court finds that the appearance of Claimant is not required due to Claimant’s status as a minor. Petitioner must still appear for the hearing.
Prognosis
Claimant has not recovered completely from the effects of the injuries, which left scarring. (Petition, ¶ 8, subd. (c).)
Order Approving Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability (MC-351) & Order to Deposit Funds in Blocked Account (MC-355)
Petitioner has filed a proposed order for approving the Petition (Form MC-351) and a proposed order to deposit funds in a blocked account (Form MC-355). The Court notes that paragraph 1 of both MC-351 and MC-355 are incomplete. (Form MC-351 (10/11/24), ¶ 1; MC-355 (10/11/24), ¶ 1.)
CONCLUSION
Based on the foregoing, the Court DENIES Petitioner Raymond Mena’s petition for minor’s compromise without prejudice.
Petitioner is ordered to provide notice of the Court’s ruling and file proof of service of same within five days of the Court’s order.