Judge Peter A. Hernandez, Case Number: 21STCV05422, Date: 2024-03-12 Tentative Ruling

11. Petitioner Ana Gallegos’ Petition to Approve Minor’s Compromise of Pending Action [i.e., as to Uriel Gallegos] is GRANTED.

2. Petitioner Ana Gallegos’ Petition to Approve Minor’s Compromise of Pending Action [i.e., as to Christian Gallegos] is GRANTED.

Plaintiffs Ana Gallegos, individually, as Successor in Interest to Rogelio Gallegos Vargas Jr. (“Rogelio”) and as guardian ad litem for her minor children, Christian Gallegos and Uriel Gallegos, and Alejandro Gallegos (together, “Plaintiffs”) allege as follows:

On February 12, 2019, Rogelio was killed when the 1999 International 4700 box-truck (“box-truck”) he was driving was struck by a Dodge Dart driven by Yuqing Jin (“Jin”), an employee of Avatech Corporation (“Avatech”) on the northbound I-605. Navistar, Inc. (“Navistar”) is responsible for defects in the manufacture, design and warnings with respect to the box-truck, which were a substantial factor in Rogelio’s injuries and death.

On February 10, 2021, Plaintiffs filed a complaint, asserting causes of action against Avatech, Jin, Navistar and Does 1-100 for:

On November 8, 2021, Navistar filed a cross-complaint, asserting causes of action against Avatech, Jin and Roes 1-50 for:

On November 30, 2021, Avatech filed a cross-complaint, asserting causes of action against Navistar, FedEx Corporation (“FedEx”), Jin and Does 101-200 for:

On June 27, 2022, Jin filed a cross-complaint, asserting causes of action against Navistar, FedEx and Roes 1-100 for:

On November 18, 2022, Jin filed an “Amendment to Cross-Complaint,” wherein FedEx Ground Package System, Inc. (“FedEx GPSI”) was named in lieu of Roe 1 and Triple G Investment, Enterprises Inc. (“Triple G”) was named in lieu of Doe 2.

On January 6, 2023, the case was transferred from Department 31 of the personal injury court to this instant department.

On February 7, 2023, Plaintiffs dismissed Navistar, with prejudice. On February 24, 2023, Jin dismissed FedEx, FedEx GPSI and Navistar, without prejudice.

On June 9, 2023, Navistar dismissed its cross-complaint, without prejudice; that day, Avatech dismissed Navistar and FedEx from its cross-complaint, without prejudice.

On June 15, 2023, Avatech filed an “Amendment to Cross-Complaint,” wherein Triple G was named in lieu of Doe 101.

On July 24, 2023, Triple G’s default was entered on Avatech’s cross-complaint.

On August 7, 2023, Plaintiffs filed a conditional “Notice of Settlement of Entire Case.”

Court approval is required for all settlements of a minor’s claim. (Prob. Code §§ 3500, 3600, et seq.; Code Civ. Proc., § 372.) California 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.” (See Cal. Rules of Court, rule 7.950.) Rule 7.950 states that the Petition must be filed 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).

Petitioner Ana Gallegos (“Petitioner”) seeks court approval of a settlement between minor claimant Uriel Gallegos (“Claimant”) (DOB: 11/3/06), Avatech and Jin in the total amount of $40,000.00. (Petition, ¶ 10)[1]. Note: Although Petitioner represents that Avatech and Jin “have offered to pay” Claimant $40,000.00 (Id., ¶ 10(a)), a review of the petition in full reflects that Claimant is not receiving $40,000.00 in settlement, but only $2,000.00 and that the $40,000.00 settlement amount is being apportioned as follows: $34,000.00 to Petitioner and $2,000.00 each to Claimant and Claimant’s two brothers, before a $13,333.33[2] reduction for a workers’ compensation lien. (Id., ¶ 11b.(5) and Attachment 11b(6).) Petitioner is Claimant’s parent and guardian ad litem. (Id., ¶ 1).

The petition is executed by Petitioner. The petition explains that on February 12, 2019, Petitioner’s husband and Claimant’s father, Rogelio, was driving an International 4700 box-truck on the I-605 freeway in Irwindale, California, and was cut off by a Dodge Dart driven by Jin as he was exiting the freeway. (Id., ¶¶ 4-5). Jin was in the course and scope of his employment with Avatech at the time. (Id., ¶ 5). The box-truck struck Jin’s vehicle and rolled over. (Id.) Rogelio was ejected from the box-truck and pronounced deceased at the scene. (Id.)

As a result of Rogelio’s death, Claimant suffered loss of comfort, care, society, emotional support, advice, solace, financial support, gifts and other related special and general damages. (Id., ¶ 6). These injuries and damages are permanent but have not physically manifested. (Id., ¶ 8(c), Attachment 8.) Claimant was not physically harmed as a result of the incident from which the cause of action arises, nor was he present at the scene of the accident. (Id.) Claimant has not received any medical, psychological or other professional treatment as a result of the loss of his father. (Id., ¶ 7).

The total amount offered by all defendants to others is $38,000.00, which will be paid as follows: $34,000.00 to Petitioner, $2,000.00 to Claimant’s brother Christian and $2,000.00 to Claimant’s brother Alejandro. (Id., ¶ 11(b).)[3] Petitioner askes that the court award equal amounts to Rogelio’s issue and award her a greater amount since Petitioner is now charged with the responsibility of providing support to Claimant, Co-Claimant, and their brother, Alejandro, who still lives at home. (Id.)

Claimant did not incur any medical expenses. (Id., ¶ 12). Claimant’s counsel waives any attorney’s fees in connection with this Petition, but expects to be compensated for any further compensation that is awarded or received that arises from the death of Claimant’s father, which includes a claim against the Uninsured Motorist (“UIM”) coverage held by Claimant’s father’s employer, RPSS, Inc., in the amount of $1 million. (Id., ¶ 17(f), Attachment 17f). Claimant explains that that claim has not yet been perfected because a precursor to UIM coverage is the payment of funds under an insufficient policy, which is the policy here at issue. (Id.)

The net balance of proceeds for Claimant after payment of all requested fees and expenses is $2,000.00, which will be deposited in an insured account at Bank of America in Hesperia. (Id., ¶ 18, Attachment 18a(3)(a).)

Petitioner Ana Gallegos (“Petitioner”) seeks court approval of a settlement between minor claimant Christian Gallegos (“Claimant”) (DOB: 4/3/08), Avatech and Jin in the total amount of $40,000.00. (Petition, ¶ 10)[4]. Note: Again, although Petitioner represents that Avatech and Jin “have offered to pay” Claimant $40,000.00 (Id., ¶ 10(a)), a review of the petition in full reflects that Claimant is not receiving $40,000.00 in settlement, but only $2,000.00 and that the $40,000.00 settlement amount is being apportioned as follows: $34,000.00 to Petitioner and $2,000.00 each to Claimant and Claimant’s two brothers, before a $13,333.33[5] reduction for a workers’ compensation lien. (Id., ¶ 11b.(5) and Attachment 11b(6).) Petitioner is Claimant’s parent and guardian ad litem. (Id., ¶ 1).

The petition is executed by Petitioner. See synopsis of nature of accident in Petition #1.

The total amount offered by all defendants to others is $38,000.00, which will be paid as follows: $34,000.00 to Petitioner, $2,000.00 to Claimant’s brother Uriel and $2,000.00 to Claimant’s brother Alejandro. (Id., ¶ 11(b).)[6] Petitioner askes that the court award equal amounts to Rogelio’s issue and award her a greater amount since Petitioner is now charged with the responsibility of providing support to Claimant, Co-Claimant, and their brother, Alejandro, who still lives at home. (Id.)

[1] $15,000.00 of the $40,000.00 is from Avatech and the remaining $25,000.00 is from Geico Insurance Company for Jin. (Petition, ¶ 10). The settlement agreement is attached as Attachment 10. (Id.)

[2] The petition filed November 29, 2023 identifies the workers’ compensation lien as $25,000.00. Attachment 11b(6) explained that in an arbitration that was out of the civil litigation, and which did not involve or include Petitioner, Claimant and Claimant’s brothers, the arbitrator awarded the worker’s compensation carrier for Rogelio’s employer $25,000.00, the amount of Jin’s policy. (Petition., ¶ 11(b), Attachment 11b(6).) The worker’s compensation payments were for death benefits to Petitioner. As part of the settlement agreement, Petitioner reserved her right to negotiate, reduce, and/or litigate the lien for reimbursement of workers’ compensation benefits, which was, at the time the petition was filed, $25,000.00 under the arbitration. (Id.) The worker’s compensation carrier paid a total of approximately $280,000.00 in benefits. (Id.)

Petitioner advised that she “continue[d to attempt to negotiate the workers’ compensation lien, but the carrier [was] unresponsive, to date.” (Id.) Petitioner represented that she would file an additional declaration prior to the hearing regarding the status of the workers’ compensation lien, as well as any negotiations, stipulations, or status changes in that regard. (Id.)

On February 13, 2024, Petitioner’s counsel Patrick B. Embrey (“Embrey”) filed a declaration, advising therein that following the filing of the Petition, Petitioner’s counsel was able to negotiate a reduction of the workers’ compensation lien from $25,000.00 to $13,333.33. (Embrey Decl., ¶ 5). Embrey further advised that the lien reduction would not affect the amount going to Claimant on the Petition, since the entire lien was to be paid through the settlement amount attributable to Petitioner. (Id., ¶ 6).

[3] Again, the $13,333.33 workers’ compensation lien is to be paid out from Petitioner’s paid through the settlement amount attributable to Petitioner. (Petition, ¶ 13(b); Embrey Decl., ¶ 6).

[4] See footnote #1, which is equally applicable to the instant Petition.

[5] See footnote #2, which is equally applicable to the instant Petition.

[6] See footnote #3, which is equally applicable to the instant Petition.