Superior Court of California

County of Los Angeles

PEDRO GARCIA CRUZ, et al.,

Plaintiffs,

vs.

FAIRMOUNT APARTMENTS, LLC, et al.,

Defendants.

Case No.: 23STCV11748

DEPARTMENT 45

[TENTATIVE] RULING

Action Filed: May 24, 2023

Trial Date: May 5, 2025

Hearing date: April 9, 2024

Moving Party: (1) Claimant David Garcia, a minor by and through his guardian ad litem, Pedro Garcia Cruz;

(2) Claimant Pedro Garcia, Jr., a minor by and through his Guardian ad Litem, Pedro Garcia Cruz.

Responding Party: None

(1) Petition for Approval of Compromise of Claim for Claimant David Garcia;

(2) Petition for Approval of Compromise of Claim for Claimant Pedro Garcia, Jr.

The Court considered the petitions papers. No opposition was received.

The court GRANTS the petitions for approval of the compromise of pending action of claimants David Garcia, a minor, by and through his Guardian ad Litem, David Garcia Cruz; and Pedro Garcia, Jr., a minor, by and through his Guardian ad Litem, David Garcia Cruz.

Background

This is a habitability action arising out of Plaintiffs’ tenancy in an apartment complex owned by the Defendants.

Pedro Garcia Cruz, David Garcia, a minor by and through his Guardian ad Litem Pedro Garcia Cruz, and Pedro Garcia Jr., a minor by and through his Guardian ad Litem Pedro Garcia Cruz, (collectively “Plaintiffs”) filed this action on May 23, 2023 against Fairmont Apartments LLC, Stacey Matsuura, as trustee of the Sarah Yoko Tanimoto 2003 Trust, Powley Properties Inc., and Top Team Realty Inc., (collectively “Defendants”) alleging causes of action for (1) Breach of Warranty of Habitability; (2) Breach of Covenant of Quiet Enjoyment; (3) Negligence; and (4) Breach of Contract. This action arises out of Defendants failure to abate, correct, or repair the following conditions (1) infestation of insects, vermin, and rodents; (2) defective and deteriorated flooring; (3) general dilapidation or improper maintenance; (4) failure to maintain the existing building, structure, premises, or portions thereof in conformity with code regulations; (5) failure to maintain operable doors and windows; (6) failure to secure loose plumbing fixtures; and (7) lack of required electrical lighting. (Complaint, ¶¶ 19.i-19.vii, 20.)

On February 14, 2024, claimants David Garcia, a minor, by and through his Guardian ad Litem, David Garcia Cruz; and Pedro Garcia, Jr., a minor, by and through his Guardian ad Litem, David Garcia Cruz, filed their respective petitions to approve compromise of the pending action. No opposition was received.

Legal Standard

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 CRC Probate Rules 7.950–7.955 and Probate Code §§ 2504, et seq. CRC Probate 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. (CRC Rule 7.955(a)-(b).)

Discussion

The court has reviewed the settlements and finds they are fair and reasonable. The petitions filed herein are properly filed on the Judicial Council Forms and are verified. (Petitions, p. 10.) Petitioners have properly included in section 11a of the MC-350 the total amount settled, and the amounts paid by each defendant. Further, the court can ascertain from section 11 of the petitions the total amount of the settlement that Plaintiffs and Defendants entered into, $80,000.00. Each claimant is set to receive $5,000.00 before attorney’s fees and costs. (Petitions, § 10a.) The petitions set forth the personal injuries each of the Claimants sustained and which they have completely recovered from. (Petitions, §§ 6, 8a.) The petitions also set forth zero medical expenses were paid or were to be reimbursed from proceeds of the settlement for each claimant. (Petitions, §§ 12a.) Petitioner states the apportionment of settlement was based on Petitioner’s special damages of paid rent during the unhabitable period. (Petitions, Attachments 11b(2).) Given the total settlement amount, the damages that each claimant sustained, and each claimant’s proportional amount in recovery, the court finds these settlement terms are fair and reasonable.

The petitions also establish Petitioners’ counsel’s name, state bar number, law firm, and business address (Petitions, § 17b); that Petitioners’ counsel has not received attorney’s fees or other compensation in addition to that requested in this petition (Petitions, § 17c); 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 (Petitions, § 17d); that Petitioners’ counsel is representing another party involved in this matter (Petitions, § 17e); and that Petitioners’ counsel expect to receive attorney’s fees or other compensation in the amount of $29,250.00 from Defendants in addition to that requested in this petition (Petitions, § 17f). (CRC, Rules 7.951(1)-(5).) Petitioner and claimants are each identified in the parties’ “Contingency Fee Retainer Agreement,” included in Attachment 17a(2). As to the requirement of CRC, Rule 7.951(6) that the terms of any agreement between petitioner and the attorney be disclosed, Petitioners have included the parties’ “Contingency Fee Retainer Agreement” in Attachment 17a, as discussed above.

The petitions show the amounts that Petitioners’ counsel requests for attorney’s fees for each claimant, $1,250.00. (Petitions, § 13a.) The petitions also set forth the total amount of costs or litigation expenses for each claimant. (Petitions, § 13b.) The amount in attorney’s fees that Petitioners’ counsel is requesting is 25 percent, which is less than the contingency fee rate set forth in the parties’ “Contingency Fee Retainer Agreement.” (See Petition, Attachment 17a [Retainer Agreement, § 1].) Under the parties’ Contract, Petitioner is to reimburse counsel for any and all costs advanced or incurred. (Id. [Retainer Agreement, § 1].)

The court finds Petitioners’ counsel’s request for attorney’s fees is reasonable. This matter has been litigated for roughly thirty months. (CRC, Rule 7.955(b)(8); Petitions, Fishenfeld Decl. at ¶ 11 ) Petitioner’s counsel attests that her firm has spent 25 hours preparing and resolving this case. (Id. at ¶ 9.) Petitioner’s counsel also establishes that her firm has advanced to date $380.94 in litigation expenses and costs, which Petitioner agreed to reimburse in the “Contingency Fee Retainer Agreement.” (Id. at ¶¶ 10, 11.)

Given the total number of hours that Petitioner’s counsel spent on this case and the total amount in attorney’s fees requested, the court finds Petitioner’s counsel’s effective hourly rate is reasonable. Thus, considering the services performed, the amount of fees in proportion thereto, and the contingent risk to Petitioner’s counsel, the court finds that the amount of attorney’s fees and costs requested are reasonable in this case. (See CRC, Rule 7.955.)

After attorney’s fees and reimbursement of costs, claimants are to receive $3,369.06 each. (Petitions, § 16f.) The petitions establish that funds will be paid or delivered to the parent of claimants without bond. (Petitions, § 18b(5).) Petitioner provides the proper documentation of his name and address. (Petitions, Attachment 18b(5).)

Based on the foregoing, the court GRANTS the petitions for approval of the compromise of pending action of claimants David Garcia, a minor, by and through his Guardian ad Litem, David Garcia Cruz; and Pedro Garcia, Jr., a minor, by and through his Guardian ad Litem, David Garcia Cruz.

It is so ordered.

Dated: April 9, 2024

_______________________

ROLF M. TREU

Judge of the Superior Court