Judge: Peter A. Hernandez, Case: BC678788, Date: 2022-09-15 Tentative Ruling

Case Number: BC678788    Hearing Date: September 15, 2022    Dept: O

Background[1]  

Plaintiffs Felipe Garcia-Inguez, Madai Najera and Felipe Garcia Jr., Tiara Garcia, Madai Garcia

and Adriana Garcia, by and through their guardian ad litem, Felipe Garcia-Inguez (“Plaintiffs”)

allege as follows: Plaintiffs were tenants at the property located at 3929 Maple Ave., El

Monte, California 91731 (“Property”) from 2011-2017. The Property is owned by Defendant Ted

Guerra (“Guerra”). Guerra failed to eradicate certain habitability conditions present at the

Property during Plaintiffs’ tenancy and evicted Plaintiffs in retaliation for complaining to the

City of El Monte.

On July 11, 2018, Plaintiffs filed a First Amended Complaint, asserting causes of action against Guerra and Does 1-100 for:

1.                  Breach of Implied Warranty of Habitability

2.                  Tortious Breach of Implied Warranty of Habitability

3.                  Negligence

4.                  Intentional Infliction of Emotional Distress

5.                  Private Nuisance

6.                  Violation of Civil Code Section 1942.4

7.                  Violation of Business & Professions Code Section 17200

On May 10, 2018, this case was transferred from Department 3 of the Personal Injury Court to this instant department.

On July 1, 2022, Plaintiffs filed an unconditional “Notice of Settlement of Entire Case.”

An Order to Show Cause Re: Dismissal (Settlement) is set for September 20, 2022.

Legal Standard

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).

Discussion

Petitioners Felipe Garcia-Inguez and Madai Najera (together, “Petitioners”) seek court approval

of a settlement between minor claimants Felipe Garcia Jr. (“Felipe Jr.”), Tiara Garcia (“Tiara”),

Madai Garcia (“Madai”) and Adriana Garcia (“Adriana”) (collectively, “minor claimants”), on

the one hand, and Guerra, on the other hand, in the total amount of $350,000.00.

The petition is properly filed on the Judicial Council form; it is not, however, properly verified. Paragraph 21 of the petition is Docusigned by Petitioner Felipe Garcia-Inguez only; however, both Petitioners should have executed the petition, not Paragraph 21, inasmuch as Paragraph 21 pertains to consent by an adult claimant with a disability who does not have a conservator of the estate.

The petition shows that Guerra offered a $60,000.00 lump sum payment to Plaintiffs, payable within 30 days of settlement. (Petition, ¶ 10.) The petition states that in 2011, Plaintiffs rented and moved into the property located at 3929 Maple Ave., El Monte, CA 91731, which was then-owned by Gerra, and that the property suffered from multiple defects, including, but not limited to: (1) rodent/insect infestations, (2) water leaks, (3) mold, (4) exposed wiring (that sparks, and is a fire hazard), (5) gas leaks, (6) no weather proofing on windows and doors and (7) other defects. (Id., ¶ 5.) After Plaintiffs repeatedly asked for repairs and complained about these defects, Guerra allegedly retaliated by evicting them. (Id.) The petition explains that minor claimants often suffered from insect bites, multiple times a week. (Id., ¶ 6.) Plaintiffs applied ointments, band-aids, and similar over-the-counter-remedies and also went to the doctor’s office once or twice for treatment. (Id., ¶ 7.) Minor claimants have recovered completely from the effects of the above injuries, and there are no permanent injuries. (Id., ¶ 8.)

Total medical expenses are $0. (Id., ¶ 12.) Costs are requested in the amount of $7,382.04. (Id., ¶  13; Ching Decl., ¶¶ 4 and 7-9, Exhs. 3-5.) Counsel also advises therein that attorney’s fees are requested in the amount of $24,000.00. (Id.) This is 40% of the gross settlement recovery. Petitioners and the attorney do have an agreement for services provided in connection with the claim giving rise to this petition. (Id., ¶ 17.) Petitioners have attached a declaration from attorney David Ching (“Ching”); Exhibit 2 thereto is a copy of the retainer agreement.

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 Court Rule 7.955, subd. (a)(1); Probate Code § 3601.) The court must give consideration to the terms of the retainer agreement and must evaluate same based on the facts and circumstances existing at the time it was made. (Cal. Rules Court Rule 7.955, subd. (a)(2).) In determining a reasonable attorney’s fee, the court may consider nonexclusive factors set forth in California Rules of Court Rule 7.955, subdivision (b), including (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 or 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 or 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 (C) the delay in payment of fees and reimbursement of costs paid by the attorney and (14) statutory requirements for representation agreements applicable to particular cases or claims.

“California Rules of Court, rule 7.955 does not dictate a presumptively reasonable percentage or mathematical method of determining the appropriate attorney fees under a contingency agreement . . . what is reasonable in applying the factors in California Rules of Court, rule 7.955 in any particular case may comprise a range of percentages.” (Schultz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1175.)

The court has reviewed the retainer agreement, as well as the declaration submitted by Ching.

The retainer agreement provides for a 40% contingency fee if the recovery is obtained prior to trial, before costs.

With all due respect to counsel, the court believes that an award of $24,000.00 in attorney’s fees, which is 40% of the gross settlement recovery, is excessive when viewed under the factors set forth above. The court notes that the fee in this case was contingent; however, counsel has not provided the court with any rough approximation of time expended on this matter. Counsel has not provided the court with any information relative to his experience, reputation and ability, nor as to his preclusion of obtaining other employment or as to Petitioners’ sophistication.

The court will reduce attorney’s fees to $18,000.00, which is calculated as follows: $60,000.00 divided by 6 (i.e., including 4 minor claimants and two adult Plaintiffs [Petitioner]) = $10,000.00. The four minor claimant’s share totals a collective $40,000.00; the two adult Plaintiffs’ share is a total $20,000.00. A 25% contingency fee for the four minor claimants totals $10,000.00 (i.e., 25% of $40,000.00). A 40% contingency fee for the two adult Plaintiffs totals another $8,000.00 (i.e., 40% of $20,000.00). After deducting attorney’s fees and litigation costs, this leaves a net balance of $34,617.96.

Petitioners request that the full balance of the settlement amount be released because Plaintiffs are economically strained, and the full settlement amount is needed to be used for their benefit. Petitioner Felipe Garcia-Inguez explains that they are currently living in a trailer park home in Hemet, that his family’s finances are tight, and that his children need the settlement funds for use in their housing, schooling and care. (Garcia-Inguez Decl., ¶ 21.)

The court otherwise finds the settlement is fair and reasonable. The court is inclined to grant the petition, subject to the reduction in attorney’s fees as outlined above and both Petitioners’ execution of the petition.