Judge: Mel Red Recana, Case: 19STCV30869, Date: 2024-02-20 Tentative Ruling
All rulings shown here are TENTATIVE ONLY, and thus oral argument WILL be heard. All Counsel are still required to attend.
Case Number: 19STCV30869 Hearing Date: February 20, 2024 Dept: 45
Hearing Date: February
20, 2024
Moving
Party: (1) Claimant Leah Rivas, a minor by and through guardian ad
litem Karina
Panduro
(2)
Claimant Bianca Gomez, a minor by and through guardian ad
litem Victor Hugo Gomez Oregon
Responding Party: None
Petitions to Approve Compromise of Pending Action
The court considered the petition papers.
No opposition was received.
The court GRANTS the petitions to approve
compromise of pending action of claimant Leah Rivas, a minor by and through guardian
ad litem Karina Panduro, and claimant Bianca Gomez, a minor by and through guardian
ad litem Victor Hugo Gomez Oregon.
The court orders that, in accordance with Cal. Rules of Court, Rule 7.953(a), a
certified or filed endorsed copy of the order must be delivered to a manager at
the financial institution where the funds are to be deposited, and that a
receipt from the financial institution must be promptly filed with the court,
acknowledging receipt of both the funds deposited and the order for deposit of
funds.
Background
On August 30,
2019, plaintiffs Karina Panduro, Blanca Vargas, Daniel A. Hernandez, Nohora
Alejandra Montoya Amaya, Blanca T. Acosta, Victor Gomez, Bianca Gomez (a minor
by and through her guardian ad litem Victor Gomez), Maria P. Gomez, Carlos E.
Panduro Gomez, and Leah Rivas (a minor by and through her guardian ad litem
Karina Panduro) filed this action. Plaintiffs filed a First Amended Complaint
(FAC) on February 18, 2022 against defendant 2416 Bellevue Avenue, Inc.,
alleging causes of action for (1) Breach of Implied Warranty of Habitability;
(2) Breach of Statutory Warranty of Habitability; (3) Breach of the Covenant of
Quiet Enjoyment; (4) Negligence; (5) Violation of Civ. Code § 1942.4; (6)
Private Nuisance; and (7) Declaratory Relief.
The
FAC alleges the following: From June 28, 2005 to the present, Defendant has
been the owner and manager of the apartment building located at 2416 Bellevue
Ave., Los Angeles, CA 90026. (FAC ¶ 1.) Plaintiffs have been tenants in the
apartment building for the last four years, residing in units 108, 111, and
217. (Id. at ¶ 2.) Given their
landlord-tenant relationship and residential lease contract, Defendant owed
Plaintiffs a duty to comply with building, fire, health, and safe codes,
ordinances, regulations, and other laws and to maintain the premises in a
habitable condition. (Id. at ¶ 8.) Defendant
breached this duty and the implied warranty of habitability by failing to
correct substandard conditions, such as garbage disposal deficiencies, electrical
deficiencies, plumbing deficiencies, lack of hot water, water leaks and water
damages on ceilings, mold and mildew on floors and walls, rodent and pest
infestations, security and safety deficiencies, storage deficiencies, and
refuse disposal deficiencies. (Id. at
¶¶ 9-10.) Defendant also failed to address Plaintiffs’ loss of use of the
premises for various periods of time from February 2014 to the present. (Id. at ¶ 9.)
The
apartment building has not been habitable or tenantable and, therefore, has had
a lesser rental value than the amount Defendant demanded. (Id. at ¶ 11.)
Plaintiffs have paid full or partial rent to Defendant, except where legally
excused to do so due to the building’s uninhabitable condition. (Id.)
Claimant Leah
Rivas, a minor by and through guardian ad litem Karina Panduro, and claimant Bianca
Gomez, a minor by and through guardian ad litem Victor Hugo Gomez Oregon, filed
petitions to approve compromise of pending action on December 14, 2023. No
opposition was received.
Discussion
Claimant Leah
Rivas, a minor by and through guardian ad litem Karina Panduro, and claimant Bianca
Gomez, a minor by and through guardian ad litem Victor Hugo Gomez Oregon, each
petition for approval of compromise of pending action.
Court approval
is required to establish an enforceable settlement of a minor’s claim. (Prob.
Code, §§ 2504, 3500, 3600, et seq.;
CCP, § 372.) Indeed, until a petition for such approval is granted by the
court, there is no final settlement, and any settlement agreement therefore is
voidable. (Scruton v. Korean Air Lines Co.
(1995) 39 Cal.App.4th 1596, 1603-05.) Petitions for approval of the compromise
of a pending action are governed by Cal. Rules of Court, Rules 7.950–7.955 and
Probate Code §§ 2504, et seq. Cal. Rules
of Court, Rule 7.950 provides that a petition “must be verified by the
petitioner and must contain a full disclosure of all information that has any
bearing upon the reasonableness of the compromise.” Rule 7.950 states that the
Petition must be filed on Judicial Council Form MC-350.
In addition to
approval of the settlement, attorney fees to be paid for representing the minor
or incompetent must be approved by the court. (Fam. Code, § 6602; Prob.
Code, § 3601.) The court must use a
reasonable fee standard when approving and allowing the amount of attorney's
fees payable from money or property paid or to be paid for the benefit of a
minor or a person with a disability. (Cal. Rules of Court, Rule 7.955(a)-(b).)
The court reviewed the petitions and
settlements and finds that they are fair and reasonable. The petitions herein were
properly filed on the Judicial Council Forms and are verified. (Petitions, p.
10.) Petitioners properly include in sections 10 and 11 of the MC-350 form the
total amount settled, $296,000, and the amount paid to each claimant, $4,000. Sections
14-16 show that the Claimants would each receive a net payment of $2,776.17,
after total attorney’s fees and expenses (other than medical). The petitions indicate
no medical expenses. (Id., § 12.)
The petitions show that Claimants agreed
to settle their claims arising out of the alleged uninhabitable conditions on the
subject property, including but not limited to cockroach infestation, bed bug
infestation, and rodent infestation. (Petitions, § 5.)
The Claimants’ injuries include bed bug bites,
lack of sleep, and allergies such as running nose and coughs. (Id., §
6.) Claimants received over-the-counter ointments, creams, and rubbing alcohol to
relieve itchiness due to insect bites. (Id., § 7.) Further, Claimants received
non-prescription allergy and cough relief medications for allergy symptoms. (Id.)
Claimants have recovered completely from the effects of the injuries, with no permanent
injuries. (Id., § 8(a).)
The petitions also establish Petitioners’
counsel’s name, state bar number, law firm, and business address (Petitions, § 17(b));
that Petitioners’ counsel has not received attorney’s fees or other
compensation in addition to that requested in these petitions (id., § 17(c));
that Petitioners’ counsel did not become concerned with this matter, directly
or indirectly, at the instance of a party against whom the claim is asserted or
a party's insurance carrier (id., § 17(d)); that Petitioners’ counsel is
representing or employed by any other party or any insurance carrier involved
in this matter (id., § 17(e)); and that Petitioners’ counsel does not expect
to receive attorney’s fees or other compensation in addition to that requested in
the petitions (id., § 17(f)). (Cal. Rules of Court, Rules 7.951(1)-(5).)
Further, Petitioners’ counsel includes the parties’ Attorney Retainer Agreement
(Petitions, § 17(a)(2), Attachments 17a.) (Cal. Rules of Court, Rules 7.951(6).)
The amount of attorney’s fees and costs requested
for each Claimant is $925.39. (Petitions, § 13(a).) Thus, the amount of attorney’s
fees is approximately 23 percent of the recovery for each claimant. Petitioners
are requesting costs of $298.44 for each Claimant. (Id., § 13(b).) Under
the parties’ Legal Services Agreement, Petitioners’ counsel is to receive 40
percent of the net recovery if the recovery is obtained after the filing of the
lawsuit. (Id., § 17(a)(2), Attachments 17a [Agreement, ¶ 7(b)].) Thus, the
amount that Petitioners’ counsel is requesting is within the percentage of net
recovery set forth in the parties’ Legal Services Agreement. (The court notes Petitioners’
counsel attests that only 25 percent is taken from minors (id., § 13(a),
Attachment 13a [Chapman Decl., ¶ 4]), but this does not appear to be specified
in the Legal Services Agreement.)
Petitioners’ counsel attests that he has
practiced law in California for over 27 years, was a founding member of his
current firm, and was a partner at Ford, Walker, Haggerty & Behar in Long
Beach, California. (Id. [Chapman Decl., ¶ 1].) Petitioners’ counsel has
handled hundreds of litigation matters over the years and has resolved each of
them through settlement, arbitration, or trial. (Id.) Petitioners’
counsel declares they conducted numerous client meetings, site inspections,
depositions, mediation sessions, and court appearances in the course of this
litigation. (Id. [Chapman Decl., ¶ 5].) Petitioners’ counsel attests
they propounded and responded to written discovery for each plaintiff client. (Id.)
Petitioners’ counsel estimates the average time expended to prosecute this
matter was about 25 hours for each plaintiff. (Id.) Petitioners’ counsel
attests this case involved evaluating complex coverage issues, such as multiple
policy exclusions and the application of multiple insurance policies for
multiple owners. (Id.)
Given the services performed, the amount
of fees in proportion thereto, Petitioners’ counsel’s experience and skill, and
the contingent risk to Petitioners’ counsel, the court finds the amount of attorney’s
fees and costs requested in this case is reasonable. (See Cal. Rules of Court,
Rule 7.955.)
The petitions state that there is no
guardianship of the estate of the Claimants. (Petitions, § 18(b).) Petitioners request,
for each claimant, that the court orders $2776.17 be deposited in insured accounts
in one or more financial institutions in this state, subject to withdrawal only
on authorization of the court. (Id., § 18(b)(2).) The name, branch, and
address of the depository are as follows: JPMorgan Chase, 401 E. Ocean Blvd, Long
Beach, CA 90802. (Id., § 18(b)(2), Attachment 18b(2).) The court finds that
Petitioner’s requests are proper and they shall be ordered in accordance with Cal.
Rules of Court, Rule 7.953(a).
Based on the
foregoing, the court GRANTS the petitions
to approve compromise of pending action of claimant Leah Rivas, a minor by and
through guardian ad litem Karina Panduro, and claimant Bianca Gomez, a minor by
and through guardian ad litem Victor Hugo Gomez Oregon. The court orders that, in
accordance with Cal. Rules of Court, Rule 7.953(a), a certified or filed
endorsed copy of the order must be delivered to a manager at the financial
institution where the funds are to be deposited, and that a receipt from the
financial institution must be promptly filed with the court, acknowledging
receipt of both the funds deposited and the order for deposit of funds.
It is so
ordered.
Dated:
February 20, 2024
_______________________
ROLF M. TREU
Judge of the Superior
Court