Judge: Ralph C. Hofer, Case: 20ST27305, Date: 2025-02-28 Tentative Ruling
Case Number: 20ST27305 Hearing Date: February 28, 2025 Dept: D
TENTATIVE RULING
Calendar: 4
Date: 2/28/2025
Case No: 20 STCV27305
Case Name: Alvillar, et al. v. BHC Alhambra Hospital, Inc.
COMPROMISE OF PENDING ACTION
Moving Party: Petitioner Alyssa Serrano, Conservator for claimant Elijah Alvillar
SUMMARY OF FACTS:
Plaintiff Elijah A. Alvillar, an incompetent individual, through his guardian ad litem, alleges that on May 6, 2019, while plaintiff was under the care, custody and control of defendant BHC Alhambra Hospital, Inc., an acute-care psychiatric hospital, defendant breached the applicable standard of care for safe custody of plaintiff when defendant and its agents failed to adequately supervise and protect plaintiff from harm while he was a resident at the Hospital.
Plaintiff alleges that he suffers from a psychiatric disability which required that he be supervised and protected from unsafe situations due to the potential for impulsive acts in which he might engage, but at the time of the subject accident, plaintiff was left unsupervised in the “smoking cage” portion of the residential care facility, which consists of a chain link fencing over the cage acting as a ceiling barrier which rises to over 8 feet in height. Plaintiff alleges that due to defendant’s failure to properly supervise plaintiff, plaintiff climbed on the chain link cage to an unsafe height and fell, immediately shattering his right heel on impact, and causing plaintiff serious injuries and related damages.
The file shows that on November 1, 2021, the court, the Honorable Michael E. Whitaker presiding, sustained a demurrer to the second cause of action of the First Amended Complaint for Dependent Adult Neglect without leave to amend, and also granted a motion to strike a prayer for enhanced remedies without leave to amend. The FAC as remaining alleged a cause of action for negligence.
On June 7, 2024, plaintiff filed a Notice of Settlement of Entire Case.
ANALYSIS:
Under CCP § 372, an action of a person who lacks legal capacity to make decisions, or for whom a conservator has been appointed, may be compromised by a guardian ad litem “with the approval of the court in which the action or proceeding is pending.”
The Second District has observed that the GAL’s “purpose is to protect the rights of the minor,” but “it is the duty of the court to see that such rights are protected.” Scruton v. Korea Air Lines Co. (1995) 39 Cal.App.4th 1596, 1605, (citing Berry v. Chaplin (1946) 74 Cal. App. 2d 652, 657).
The petition is brought by the conservator for claimant, Alyssa Serrano. The file shows that claimant’s guardian ad litem was originally Philip Ramirez. The petition, while brought by the conservator, also checks the box on the petition stating, that claimant “Does not have a conservator of the estate.” [Petition, ¶ 2 (f)]. The declaration of the attorney indicates that in June of 2022 Alyssa Serrano became the conservator for claimant Alvillar and was substituted in as guardian ad litem on September 6, 2022. [Attach 13a, Boris Decl., para. 3]. The court file confirms that such an order was signed and filed on September 6, 2022. The court will confirm at the hearing the propriety of the petition being pursued by Alyssa Serrano, despite checking the box that there is no conservator.
The petition indicates that claimant as a result of this accident suffered a right calcaneal fracture, and swelling and bruising to posterior aspect of foot. [Petition, ¶ 6]. The petition also indicates that claimant has recovered completely from the effects of the injuries and there are no permanent injuries, which is supported by medical records showing that on a visit to a podiatry specialist on November 17, 2019, the notes state, “Fracture line has healed. No significant joint disease is noted. No significant soft tissue abnormality is identified. IMPRESSION: Healed calcaneal fracture.” [Petition ¶ 9, Attach. 8a, p. 183 (239 on eCourt)]. The patient was directed to use inserts and break in, use lace up ankle brace, and continue with PT. [Attach. 9, p 184 (240 on eCourt)]. [Petition, attachment 9].
The settlement is for $50,000, with defendant BHC Alhambra Hospital.
The Proceeds are to be distributed as follows:
Medical Expenses/Medical lien reimbursement: $630.27
Legal expenses advanced by counsel: $44,369.73
Attorney’s Fees: 0.00
Balance of Proceeds: $5,000.00 (To be placed in blocked account).
The petition does not seek attorney’s fees, but a major portion of the settlement is to be paid to counsel for legal expenses. These include:
Litigation Cost: $ 8,352.50
Deposition Cost: $ 16,714.05
Legal Expert Fees: $ 15,950.00
Court Filings: $ 2,566.82
Medical Records Request: $ 636.36
Nurse DME Fees: $ 150.00
Total: $ 44,369.73
The petition attaches at attorney’s declaration with attached invoices and payment proof in the form of checks from the law firm. [Petition, Attach. 13a, Ex. B]. The attorney, Alexander B. Boris, explains that the matter was subject to a retainer agreement, under which counsel would be entitled to 33% contingency fee, but counsel is not requesting any contingency fee in the matter. [Boris Decl. paras. 6-9]. Counsel states:
“The total settlement is for $50,000.00. Our total costs to date are $55,920.70, which is greater than the settlement amount. We understand that we will be taking a loss and are only requesting reimbursement of costs in the amount of $44,369.73. This allows ALVILLAR to receive $5,000.00 and for the medical expenses of $630.27 to be reimbursed.”
[Boris Decl., para. 9 of any settlement,
This award of only a portion of expenses advanced, with no fees, appears to be supported by the attachments. The petition is approved.
RULING:
[No Opposition].
Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability is GRANTED.
The Order to Deposit Funds in Blocked Account and Order Approving Compromise of Claim or Action submitted with the Petition will be signed by the Court.
DEPARTMENT D IS CONTINUING TO CONDUCT AND ENCOURAGE
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