Judge Melvin D. Sandvig, Case 19CHCV00489 2023-02-28 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 19CHCV00489, Date: 2023-02-28 Tentative Ruling

Counsel wishing to submit on a tentative ruling may inform the clerk or courtroom assisant in North Valley Department F47, 9425 Penfield Ave., Chatsworth, CA 91311, at (818) 407-2247. Please be aware that unless all parties submit, the matter will still be called for hearing and may be argued by any appearing/non-submitting parties. If the matter is submitted on the court's tentative ruling by all parties, counsel for moving party shall give notice of ruling. This may be done by incorporating verbatim the court's tentative ruling. The tentative ruling may be extracted verbatim by copying and specially pasting, as unformatted text, from the Los Angeles Superior Court’s website, http://www.lasuperiorcourt.org. All hearings on law and motion and other calendar matters are generally NOT transcribed by a court reporter unless one is provided by the party(ies).

Case Number: 19CHCV00489 Hearing Date: February 28, 2023 Dept: F47

Dept. F47

Date: 2/28/23

Case #19CHCV00489

MINOR’S COMPROMISE

Petition filed on 1/25/23.

MINOR: Christopher Gutierrez

GAL: Luz Gutierrez (parent)

DEFENDANTS: Parkville LLC and Chatsworth Garden Apartments LLC

SUMMARY OF ACTION: This action arises out minor’s exposure to mold and vermin infestation in the property occupied by minor and his family. As a result of the exposure, minor allegedly suffered health problems and allergic reactions. Minor received treatment for bug bites and allergies. Minor has completely recovered from the effects of the injuries.

AMOUNT OF SETTLEMENT: $10,000.00 with $5,000.00 to be paid by Parkville LLC and $5,000 to be paid by Chatsworth Garden Apartments LLC

ATTORNEY FEES: $0

MEDICAL EXPENSES: $0

COSTS: $0

AMOUNT TO BE PAID TO MINOR: $10,000.00

RULING: The petition is denied without prejudice.

This is the fourth time Plaintiffs’ counsel has submitted a defective petition for approval of the minor’s claim. On 3/8/22, an expedited petition for approval was filed and rejected on 3/14/22. On 4/6/22, a petition for approval was filed which was set for hearing on 5/19/22. On 5/19/22, the hearing was continued to 7/21/22 due to several defects. (See 5/19/22 Minute Order). On 7/21/22, because a petition correcting the defects noted in the Court’s 5/19/22 ruling had not been timely filed, the Court continued the hearing to 9/15/22. On 7/20/22, another petition was filed which was again denied without prejudice due to numerous defects on 9/15/22. (See 9/15/22 Minute Order). The Court further noted in its 9/15/22 ruling that “[i]f Plaintiff’s counsel continues to file defective petitions, the Court will consider setting an Order to Show Cause as to why sanctions should not be imposed against Plaintiff’s counsel Joseph W. Kellener for his repeated failure to comply with applicable rules regarding the filing and approval of such a petition. See California Rules of Court, Rule 2.30.” (See 9/15/22 Minute Order, p.2). The Court then reserved 10/18/22 for hearing on a new petition. Id.

Plaintiffs’ counsel failed to file a new petition for the 10/18/22 hearing date; therefore, the matter was continued to 1/26/23. (See 10/18/22). Despite Plaintiffs’ counsel’s representation on 10/18/22 that he was in the process of preparing the petition and would be filing it soon, Plaintiff’s counsel did not file a new petition until 1/25/23 at 3:24 p.m. for the 1/26/23 hearing date. (See 10/18/22 Minute Order; Petition filed on 1/25/23). As a result, the hearing on the petition was rescheduled by the Court for 2/28/23. (See 1/26/23 Minute Order). The Court also ordered Plaintiff to file a supplemental declaration regarding the issue of the $10,000.00 allocation to the minor child which was discussed at the 1/26/23 hearing. Id. Despite such order, no supplemental declaration has been filed.

The petition and proposed order filed on 1/25/23 suffer from the following defects:

(1) Number 3.a. in the petition and number 3.a. in the proposed order are not marked and they should be as Luz Gutierrez is the minor’s parent. The direction for that item says to check all applicable boxes. Therefore, 3.a. and 3.b. should have been marked. Petitioner was identified as the minor’s parent in the 7/20/22 petition and was appointed the minor’s guardian ad litem on 6/13/19.

(2) Number 9 in the petition is not completed.

(3) In number 8, the petition indicates that the minor received treatment for bug bites and allergies while being exposed in the unit. However, no medical records are attached in number 9 and no medical expenses are identified in number 13.

(4) The settlement numbers and information in number 12 does not make sense. Number 12.b.(1) indicates that the total amount offered by all defendants to others is $70,000.00. Number 12.b.(5) is supposed to set forth the “Other plaintiffs or claimant” who are receiving settlement funds and the amounts. The petition indicates that Margarito Gutierrez is receiving $25,000.00, Luz Gutierrez is receiving $25,000.00, the minor (Christopher Gutierrez) is receiving $10,000.00 and the attorney is receiving $20,000.00. First, the minor’s settlement should not be included and the attorney is not a plaintiff or claimant. Second, the amounts set forth do not total $70,000.00. The settlement amounts for plaintiffs set forth in number 12.b.(5) only total $60,000.00. From this, it is not clear if the Defendants are directly paying $20,000.00 in attorney’s fees to Plaintiffs’ attorney or whether the attorneys’ fees will be taken out of the other Plaintiffs’ settlements as the petition indicates that no attorney’s fees are being paid from the minor’s settlement. (See Petition No.14). From number 18.c., it appears that $10,000.00 in attorney’s fees will come/came from Luz Gutierrez’s and Margarito Gutierrez’s settlements for a total of $20,000.00 in attorney’s fees. It is not clear if such fees have already been paid or will be paid as both number 18.c. and 18.f. are marked. Since the petition indicates that such fees were paid on 9/27/21, it appears that number 18.f. should not be marked. Attachment 12 further confuses matters by stating that “Plaintiff and the 4 other family members received their own settlement claims totaling $30,000.00.” (See Attachment 12). It is not clear where the $30,000.00 figures came from and/or whose settlement funds it refers to as only three plaintiffs are referenced in the petition. It is not clear if Plaintiffs Andy Gutierrez and Brian Gutierrez are receiving settlement funds and if so, how much and/or if they will be paying the attorney any fees.

(5) The agreement for attorney services indicated in number 18.a.(2) is not attached as required.

(6) Number 19.b. is not completed. As such, there is no indication in the petition as to how the settlement funds will be paid/held. The proposed order indicates that “a check for $10,000.00 will be given to the guardian ad litem who in turn will deposit the money into an account for them.” (See Proposed Order, Number 7.b.). Such distribution is not acceptable as the minor’s entire estate would exceed $5,000.00. There is no indication that the money is to be deposited into a blocked bank account for the minor.

(7) The petition is not signed by the petitioner. (See Petition, bottom of p.10).

Based on the warning set forth in this Court’s 9/15/22 Minute Order, the Court will set an Order to Show Cause Re Sanctions against Plaintiffs’ counsel Joseph W. Kellener for his repeated failure to comply with applicable rules regarding the filing and approval of such a petition and failure to comply with this Court’s 1/26/23 order to file a supplemental declaration. See CRC 2.30.

Plaintiffs’ counsel is also reminded that any new petition must be filed and served at least 16 court days before the hearing date on the petition. Further, Plaintiffs’ counsel is advised that the Judicial Council Form Adopted for Alternative Mandatory Use (MC-350) was revised on 1/1/21. Plaintiffs’ counsel has used an outdated version of the form. Counsel must use the most recently revised form for a new petition.