Judge Peter A. Hernandez, Case Number: 23PSCV02286, Date: 2023-11-08 Tentative Ruling

Petitioner Chong Yang’s Petition to Approve Compromise of Pending Action is GRANTED, with a reduction of attorney’s fees from 33.3% to 25% [see below].

On July 27, 2023, Plaintiff Tiffany Caridad Herrera-Yang (“Tiffany”), a minor, by and through her Guardian Ad Litem, Chong Yang (“Yang”) filed a “Complaint (Petition to Open a Civil Case and Assign a Case Number by Plaintiff/Petitioner Tiffany Caridad Herrera-Yang).”

A Case Management Conference and an Order to Show Cause Re: Failure to File Proof of Service are set for January 18, 2024.

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).

At the outset, the court notes that Petitioner has submitted the instant petition on an outdated Judicial Council Form MC-350, “Rev. January 1, 2011.” The latest version of MC-350 was made effective January 1, 2021. Counsel for Petitioner is admonished in this regard. The court nevertheless elects to review the petition, as follows:

Petitioner Chong Yang seeks court approval of a settlement between minor claimant Tiffany and Progressive Insurance Company (i.e., Tiffany’s mother’s [i.e., Karla Margarita Herrera (“Mother”)] uninsured policy coverage insurer) in the total amount of $8,000.00. (Petition, ¶ 11).

The petition is executed by Petitioner. The petition explains that on December 29, 2020, Tiffany sustained injuries in a motor vehicle collision on the I-605 southbound. The driver that rear-ended the vehicle Tiffany was in fled the scene before providing any information. (Id., ¶¶ 5 and 6). Tiffany sustained neck and upper back pain as a result of the accident, for which she received chiropractic care from January 18, 2021 through June 2021 and 2 visits with a pain management specialist. (Id., ¶¶ 7 and 8). Tiffany has recovered completely from the effects of the aforementioned injuries and there are no permanent injuries. (Id., ¶ 9).

Progressive Insurance Company has also offered to pay $58,000.00 to Mother to settle claims arising out of the same incident that resulted in Tiffany’s injury. (Id., ¶ 12.) The apportionment of the settlement payments is based on negotiation taking into consideration the relative injuries and medical treatment of each claimant. (Id., Attachment 12).

Tiffany’s total medical expenses are $3,660.00 and there are contractual liens for this amount. (Id., ¶ 13a.(1) and 13b.(5)(a)). In full satisfaction of their lien claims, the lienholders have agreed to accept the total sum of $1,850.00, $1,200.00 of which will be paid to Forrest Hannan DC and $650.00 of which will be paid to Kevin Hayavi MD. (Id., ¶ 13b.(5)(b) and Attachments 13a and 13g). This $1,850.00 will be paid from the settlement proceeds. (Id., ¶ 13a.(2)).

The total amount of attorney’s fees for which court approval is requested is $2,666.40. (Id., ¶ 14a.). This equates to 33.33% of the total recovery. The retainer agreement is attached as Attachment 18a. The court has reviewed the declaration of attorney Sara Rodriguez (“Rodriguez”) (Attachment 14a) and believes that 25% (or $2,000.00) is an appropriate percentage for attorney’s fees here. Rodriguez only specifically addresses the factors found in Rules of Court rule 7.955 subdivisions (b)(1), (2), (11) and (13)[1] and acknowledges that the case was resolved in a “relatively straight-forward manner.” (Rodriguez Decl., ¶ 3). Further, counsel expects to receive fees in the additional amount of $26,100.00 from Mother. (Petition, ¶ 18f.).

The net balance of proceeds for Tiffany after payment of all requested fees and expenses is $3,483.60 (or $4,150.00 based on the reduction of attorney’s fees to 25%), which will be deposited in an insured account at Wells Fargo Bank. (Id., ¶ 19b.(2); Attachment 19b(2).)

The court finds the settlement is fair and reasonable, with the reduction of attorney’s fees from 33.3% to 25%. The petition is granted. The order will be interlineated to reflect the $4,150.00 amount to be deposited at Wells Fargo.

[1] California Rules of Court rule 7.955, subdivision (b) provides as follows: “In determining a reasonable attorney's fee, the court may consider the following nonexclusive factors:

(1) The fact that a minor or person with a disability is involved and the circumstances of that minor or person with a disability.

(2) The amount of the fee in proportion to the value of the services performed.

(3) The novelty and difficulty of the questions involved and the skill required to perform the legal services properly.

(4) The amount involved and the results obtained.

(5) The time limitations or constraints imposed by the representative of the minor or person with a disability or by the circumstances.

(6) The nature and length of the professional relationship between the attorney and the representative of the minor or person with a disability.

(7) The experience, reputation, and ability of the attorney or attorneys performing the legal services.

(8) The time and labor required.

(9) The informed consent of the representative of the minor or person with a disability to the fee.

(10) The relative sophistication of the attorney and the representative of the minor or person with a disability.

(11) The likelihood, if apparent to the representative of the minor or person with a disability when the representation agreement was made, that the attorney's acceptance of the particular employment would preclude other employment.

(12) Whether the fee is fixed, hourly, or contingent.

(13) If the fee is contingent:

(A) The risk of loss borne by the attorney;

(B) The amount of costs advanced by the attorney; and

(14) Statutory requirements for representation agreements applicable to particular cases or claims.”