Judge: Michael P. Linfield, Case: 21STCV37589, Date: 2024-02-16 Tentative Ruling

Case Number: 21STCV37589    Hearing Date: February 16, 2024    Dept: 34

SUBJECT:        Motion to Approve Petition for Approval of Compromise of Claim and Disposition of Proceeds for a Person with Disability

Moving Party: Petitioner Jung Hee Choi (deceased)

Resp. Party:    None

SUBJECT:        Request to Substitute Elissa Choi for Jung Hee Choi (deceased) as Petitioner for Approval of Disposition of Proceeds for Sharon Choi into a Pooled Special Needs Trust

Moving Party: Petitioner Elissa Choi

Resp. Party:    None

The Request to Substitute is DENIED without prejudice.

The Motion for Approval of Compromise is DENIED without prejudice.

BACKGROUND:

On October 13, 2021, Plaintiff Sharon Choi filed her Complaint against Defendant Normandie Wilshire Retirement Hotel, Inc. on causes of action arising from Plaintiff’s ongoing rehabilitative care with Defendant. The Complaint was filed on behalf of Plaintiff by Jung Hee Choi, who had durable power of attorney for Plaintiff.

On December 8, 2021, Plaintiff filed her First Amended Complaint (FAC). The FAC was filed on behalf of Plaintiff by Jung Hee Choi, who had durable power of attorney for Plaintiff.

On January 13, 2022, pursuant to the Parties’ Stipulation, the Court ordered that this case be stayed pending the completion of binding arbitration and that this case be dismissed after the binding arbitration has been completed.

On January 22, 2024, Plaintiff filed her Motion to Approve Petition for Approval of Compromise of Claim and Disposition of Proceeds for a Person with Disability (“Motion for Approval of Compromise”). The Motion was filed on behalf of Plaintiff by Jung Hee Choi, who had durable power of attorney for Plaintiff.

On February 7, 2024, Elissa Choi filed Request to Substitute Elissa Choi for Jung Hee Choi (deceased) as Petitioner for Approval of Disposition of Proceeds for Sharon Choi into a Pooled Special Needs Trust (“Request to Substitute”). Elissa Choi concurrently filed Declaration of Elissa Choi in support of the Request to Substitute.

ANALYSIS:

I.          Request to Substitute

A.      Legal Standard

“The person who seeks to commence an action or proceeding or to continue a pending action or proceeding as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state stating all of the following:

“(1) The decedent’s name.

“(2) The date and place of the decedent’s death.

“(3) ‘No proceeding is now pending in California for administration of the decedent’s estate.’

“(4) If the decedent’s estate was administered, a copy of the final order showing the distribution of the decedent’s cause of action to the successor in interest.

“(5) Either of the following, as appropriate, with facts in support thereof:

“(A) ‘The affiant or declarant is the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) and succeeds to the decedent’s interest in the action or proceeding.’

“(B) ‘The affiant or declarant is authorized to act on behalf of the decedent’s successor in interest (as defined in Section 377.11 of the California Code of Civil Procedure) with respect to the decedent’s interest in the action or proceeding.’

“(6) ‘No other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding.’

“(7) ‘The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’

(Code Civ. Proc., § 377.32, subd. (a).)

“Where more than one person executes the affidavit or declaration under this section, the statements required by subdivision (a) shall be modified as appropriate to reflect that fact.” (Code Civ. Proc., § 377.32, subd. (b).)

“A certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.” (Code Civ. Proc., § 377.32, subd. (c).)

B.      Discussion

Elissa Choi requests to be substituted for Jung Hee Choi as the petitioner for approval of disposition of Plaintiff’s proceeds into a pooled special needs trust. (Request to Substitute, p. 2:6–13.) The reason for this request is that Jung Hee Choi, who filed the FAC on behalf of Plaintiff with a durable power of attorney for her, allegedly passed away on February 5, 2024 from an apparent heart attack. (Id. at p. 2:3–5.)

The legal authority for this request is allegedly based on Code of Civil Procedure section 377.32. (Request to Substitute, p. 2:13–15.)

There appear to be two issues with the Request to Substitute.

First, the declaration does not seem to comply with certain portions of Code of Civil Procedure section 377.32, subdivision (a), that require specific items be declared.

Second, Elissa Choi declares that no death certificate has yet been issued. (Decl. Choi, ¶ 13.) But Code of Civil Procedure section 377.32 requires that “[a] certified copy of the decedent’s death certificate shall be attached to the affidavit or declaration.” (Code Civ. Proc., § 377.32, subd. (c).)

        Without the specific requirements of the statute being met, the Court lacks jurisdiction at this time to grant the relief requested.

C.      Conclusion

The Request to Substitute is DENIED without prejudice.

II.       Motion for Approval of Compromise

A.      Legal Standard

“The guardian or conservator of the estate or guardian ad litem so appearing for any minor, person who lacks legal capacity to make decisions, or person for whom a conservator has been appointed shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise. . . .” (Code Civ. Proc., § 372, subd. (a)(3).)

“A petition for court approval of a compromise or covenant not to sue under Code of Civil Procedure section 372 must comply with rules 7.950 or 7.950.5, 7.951, and 7.952.” (Cal. Rules of Court, rule 3.1384(a).)

“A petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor's disputed claim; a compromise or settlement of a pending action or proceeding to which a minor or person with a disability is a party; or the disposition of the proceeds of a judgment for a minor or person with a disability under Probate Code sections 3500 and 3600-3613 or Code of Civil Procedure section 372 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, covenant, settlement, or disposition. Except as provided in rule 7.950.5, the petition must be submitted on a completed Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person With a Disability (form MC-350).” (Cal. Rules of Court, rule 7.950.)

“In all cases under Code of Civil Procedure section 372 or Probate Code sections 3600-3601, unless the court has approved the fee agreement in advance, 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)(1).)

“The 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, except where the attorney and the representative of the minor or person with a disability contemplated that the attorney's fee would be affected by later events.” (Cal. Rules of Court, rule 7.955(a)(2).)

“A petition requesting court approval and allowance of an attorney's fee under (a) must include a declaration from the attorney that addresses the factors listed in (b) that are applicable to the matter before the court.” (Cal. Rules of Court, rule 7.955(c).)

B.      Discussion

Jung Hee Choi, who had durable power of attorney for Plaintiff, moved on behalf of Plaintiff for approval of a compromise in this matter.

However, it appears that Jung Hee Choi has since passed away. The Court has not yet been presented with sufficient evidence regarding who, if anyone, may step into his shoes for his Motion for Approval of Compromise.

C.      Conclusion

The Motion for Approval of Compromise is DENIED without prejudice.