TENTATIVE RULING

 

Calendar:    7

Date:          9/9/2022

Case No: 21 GDCV01111

Case Name: Aghazaryan et al. v Raintree Glendale, LLC, et al.

COMPROMISE OF PENDING ACTION (2)

Moving Party:            Petitioner Anush Aghazaryan as parent/GAL for minor plaintiff/

claimant K. Palamutian 

Petitioner Anush Aghazaryan as parent/GAL for person with a disability plaintiff/claimant Hovik Palamutian   

SUMMARY OF FACTS:

Plaintiffs Anush Aghazaryan and Akop Palamutian, and their minor children, Hovik Palamutian and K. Palamutian, allege that during their tenancy in a unit of leased premises which were negligently and improperly maintained by defendants, the premises became uninhabitable due to housing conditions including, but not limited to, bedbug infestation on the premises and in the subject unit.    

Plaintiffs allege that although defendants had actual notice and knowledge of the untenantable conditions, defendants failed to repair or ameliorate the conditions at the premises, and ignored plaintiffs’ repeated complaints and written notices, eventually evolving into agencies issuing orders noticing defendants of various housing and code violations within the subject unit.  Plaintiffs allege that despite having ample notice, defendants failed to repair the defective conditions, and that as a result of the failure to maintain the premises and unit in a decent, safe and habitable condition, plaintiffs have suffered personal injury, emotional distress, loss of personal property, and loss in the value of their leasehold.  

It is also alleged that plaintiff Hovik Palamutian suffers from a chronic medical condition constituting a disability, and that defendants by their conduct discriminated against Hovik Palamutian due to his disability.    

ANALYSIS:

Under CCP § 372, an action of a minor or a person with a disability 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 as to minor K. Palamutian indicates that claimant as a result of the incident suffered emotional distress and personal injury such as bedbug bites and rashes.  [Petition, para. 6].   Claimant has received no care and treatment for the injuries described and has recovered completely from the effects of the injuries. [Petition, paras. 7, 8].  

The petition as to person with a disability Hovik Palamutian indicates that claimant as a result of the incident also suffered emotional distress and personal injury, including bedbug bites and rashes, has received no care and treatment for the injuries described, and has recovered completely from the effects of the injuries. [Petition, paras. 7, 8].  

The settlement is with defendant Raintree Glendale, LLC and Cirrus Asset Management, Inc. in the sum of  $5,000 as to each of the two claimants.  

The Proceeds are to be distributed as follows:

Attorney’s Fees: $1,250.00 

Balance of Proceeds: $3,750   

The proceeds as to Hovik Palamutian are to be placed in a blocked account.   The proceeds as to K. Palamutian are to be paid or delivered to the parent of the minor.  

The petitions each seek 25% of the gross settlement in attorneys’ fees, for a total of $1,250 in fees to be paid by each petitioner.  

Under previous LASC Local Rule, fees could not exceed 25% without a showing of good cause. 

The California Rules of Court and Judicial Council have since expressly preempted local rules concerning this field, and the current local rules (Rule 4.115) do not address it.   See CRC Rule 7.955(d). 

Under CRC Rule 7.955, the court must now determine the “reasonable fees,” based on factors which must be addressed by the declaration of the attorney.   CRC Rule 7.955(a)(c). 

CRC Rule 7.955 provides:

“(a) Reasonable attorney's fees

 (1) 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.

(2) 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. 

(b) Factors the court may consider in determining a reasonable attorney's fee 

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

    (C) The delay in payment of fees and reimbursement of costs paid by the attorney.

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

(c) Attorney's declaration 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. 

Here, the attorney’s declarations here are sufficiently complete to establish entitlement to the fees sought here at a sum of 25%, as agreed in the attached Attorney Retainer Agreement, as the attorney represents that the settlement was reached after the attorney performed work such as filing the lawsuit, substantial investigation, discovery, and several months of negotiations, that the firm bore a risk of receiving no recovery for the services performed, and that the petitioners will not be allocated any costs incurred, which will be allocated to the adult plaintiffs.  [See Attach. 13a and 17a, Ex. 1, Kazandjian Decl., paras. 4, 8, and 9, Ex. A. Attorney Retainer Agreement.]. The court finds that the fees justified.  

The petition as to plaintiff Hovik Palamutian, with the funds to be placed in a blocked account, appears in order and will be approved.  Petitioner to submit the appropriate Judicial Council form Order to Deposit Money into Blocked Account and Order Approving Compromise of Claim or Action.

The petition as to plaintiff K. Palamutian does not petition to have funds deposited in a blocked account, but the disposition of the balance of funds for the minor claimant is proposed to be by the funds being paid or delivered to the parent of the minor, “without bond, on the terms and under the conditions specified in Probate Code sections 3401-3402.”  [Petition, paras. 18 b (5)]. 

Probate Code section 3401 provides, in pertinent part:

(a) Where a minor does not have a guardian of the estate, money or other property belonging to the minor may be paid or delivered to a parent of the minor entitled to the custody of the minor to be held in trust for the minor until the minor reaches majority if the requirements of subdivision (c) are satisfied.

….

(c) This section applies only if both of the following requirements are satisfied:

(1) The total estate of the minor, including the money and other property to be paid or delivered to the parent, does not exceed five thousand dollars ($5,000) in value.

(2) The parent to whom the money or other property is to be paid or delivered gives the person making the payment or delivery written assurance, verified by the oath of such parent, that the total estate of the minor, including the money or other property to be paid or delivered to the parent, does not exceed five thousand dollars ($5,000) in value.”

Under Probate Code section 3402, “The written receipt of the parent giving the written assurance under Section 3401 shall be an acquittance of the person making the payment of money or delivery of other property pursuant to this article.”  

The petition is not supported by a declaration of the petitioner/parent providing any statement under oath and satisfying the court that Probate Code section 3401 has been satisfied. There is no representation by the parent that the total estate of the minor, including the money or other property to be delivered to the parent, does not exceed five thousand dollars in value, and no indication by the parent that the funds are to be held in trust for the minor, until the minor reaches majority.  The court will consider argument with respect to whether the funds will be released to the parent, with no further control of the funds by the court or will be required to be deposited in insured accounts in one or more financial institutions in this state, subject to withdrawal only on authorization of the court.  [See Petition, para. 18 b (2)]. 

 

The petition as to claimant K. Palamutian will be approved only if the court is satisfied with any further information concerning the disposition of the funds.   

RULING:

Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability on behalf of claimant Hovik Palamutian is GRANTED.

Petitioner is ordered to submit a completed Order to Deposit Money into Blocked Account and Order Approving Compromise of Claim or Action, which was evidently not submitted with the Petition.

Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability on behalf of claimant K. Palamutian: GRANTED but the court needs to hear argument concerning why the funds should not be deposited into a blocked account or that the funds are otherwise protected in a trust fund.  

 GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.