Judge: Ronald F. Frank, Case: ALSO, Date: 2024-11-13 Tentative Ruling

Case Number: ALSO,IHAVEH    Hearing Date: November 13, 2024    Dept: 8

Tentative Ruling¿ 

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HEARING DATE:                 November 13, 2024 

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CASE NUMBER:                   23TRCP00381

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CASE NAME:                        In Re Petition of M_W_84, LLC v. J.W. as Parent and Natural Guardian of K.R.

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MOVING PARTY:                 Petitioner, M_W_84, LLC

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RESPONDING PARTY:        Real Party in Interest, J.W. ad Parent and Natural Guardian of K.R.

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TRIAL DATE:                        Not Set.

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MOTION:¿                              (1) Petitioner’s Motion for Order Approving Transfer of Structured Settlement Payment Rights Pursuant to California Insurance Code section 10134, et seq.

Tentative Rulings:                  (1) Petitioner’s Motion for Order Approving Transfer of Structured Settlement Payment Rights Pursuant to California Insurance Code section 10134, et seq. is DENIED without prejudice.

I. BACKGROUND¿¿ 

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A.    Factual¿¿ 

On October 3, 2024, Petitioner, M_W_84, LLC (“Petitioner”) filed a verified petition of J.W. as Parent and Natural Guardian of K.R. for Approval of Transfer of Structured Payment Rights Pursuant to California Insurance Code section 10134, et seq. On October 8, 2024, Petitioner filed a Notice of Motion for Order Approving Transfer of Structured Settlement Payment Rights pursuant to California Insurance Code section 10134, et seq.

On October 23, 2024, Petitioner filed a First Amended Verified Petition of Jessie Wong as Guardian of K.R. for Approval for Transfer of Structured Settlement Payment Rights pursuant to California Insurance Code section 10134, et seq. Petitioner seeks to have the structured settlement payments made by Pacific Life & Annuity Services, Inc. (“Obligor”) to Transferor Jessie Wong (“Transferor”) as Parent and Natural Guardian of K.R. (“Payee”) assigned to Petitioner. Transferor entered into an agreement to settle tort claim damages. The settlement agreed to by the Transferor provides for periodic payments, but not limited to the payments that are the subject of this Petition. Petitioner and Transferee, M_W_84, LLC and Payee now wish to enter into an agreement by which Transferee purchases the periodic payments, as referenced within their proposed Transfer Agreement.

B.    Procedural

On October 8, 2024, Petitioner brought this Motion for Order Approving Transfer of Structured Settlement Payment Rights pursuant to California Insurance Code section 10134, et seq. To date, no opposition has been filed.  

II. ANALYSIS¿ 

A.    Notice of Petition

Insurance Code section 10139.5 requires the petitioner to file several documents not less than 20 days prior to the scheduled hearing on any¿petition¿for approval of a transfer of structured settlement payment rights:  

(A) A copy of the transferee's current petition and any other prior petition, whether approved or withdrawn, that was filed with the court in accordance with paragraph (6) of subdivision (c). 

(B) A copy of the proposed transfer agreement and disclosure form required by paragraph (3) of subdivision (a). 

(C) A listing of each of the payee's dependents, together with each dependent's age. 

(D) A copy of the disclosure required in subdivision (b) of Section 10136. 

(E) A copy of the annuity contract, if available. 

(F) A copy of any qualified assignment agreement, if available. 

(G) A copy of the underlying structured settlement agreement, if available. 

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(I) Proof of service showing compliance with the notification requirements of this section. 

(J) Notification that any interested party is entitled to support, oppose, or otherwise respond to the transferee's petition, either in person or by counsel, by submitting written comments to the court or by participating in the hearing. 

(K) Notification of the time and place of the hearing and notification of the manner in which and the time by which written responses to the petition must be filed, which may not be less than 15 days after service of the transferee's notice, in order to be considered by the court. 

(L) If the payee entered into the structured settlement at issue within five years prior to the date of the transfer agreement, then the transferee shall provide the following notice to the payee's attorney of record at the time the structured settlement was created, if the attorney is licensed to practice in California, at the attorney's address on file with the State Bar of California. 

(Ins. Code, § 10139.5(f)(2)(A)-(G), (I)-(L).) Insurance Code section 10139.5, subdivision (f)(2)(H) provides an exemption: 

If a copy of a document described in subparagraph (E), (F), or (G) is unavailable or cannot be located, then the transferee is not required to attach a copy of that document to the petition or notice of the proposed transfer if the transferee satisfies the court that reasonable efforts to locate and secure a copy of the document have been made, including making inquiry with the payee. If the documents are available, but contain a confidentiality or nondisclosure provision, then the transferee shall summarize in the petition the payments due and owing to the payee, and, if requested by the court, shall provide copies of the documents to the court at a scheduled hearing. 
 

(Ins. Code, § 10139.5(f)(2)(H).) 

            The original petition in this action was filed on October 3, 2024. There is no proof of service attached to the original petition. On October 8, 2024, Petitioner filed a Notice of Motion for Order Approving Petition, attaching six unauthenticated exhibits. (Evid. Code §¿1400.) On October 23, 2024, Petitioner filed a First Amended Verified Petition which has attached a proof of service (by federal express), and which includes a number of additional exhibits. However, the Notice of Motion is in violation of Insurance Code section 10139.5, subdivision (f)(2)(A) as it only includes a copy of the original Petition but does not include the subsequently filed First Amended Petition. As the Notice of Motion was made prior to the filing of the First Amended Petition, the Notice of Motion is procedurally defective and cannot even satisfy the first element of the notice requirements under Insurance Code section 10139.5, subdivision (f)(2)(A). Thus, the Motion is DENIED without prejudice to being re-filed with the missing amended petition.   Further, the two proofs of service in this mater by federal express indicate they were placed in a drop box, with no delivery receipt or other proof that the addressees received the documents.  If there is a provision of the Insurance Code that permits petition of this sort and the notification requirement to be served by federal express, the Court requests citation to same for future reference.  Otherwise, with this action having been commenced with an original and now amended petition, valid service of the case-initiating documents on the respondent or real party in interest will need to be shown.   

IV. CONCLUSION

            Based on the foregoing, this court DENIES Petitioner’s Motion without prejudice to be brought again when Petitioner is to submit a motion in compliance with Insurance Code section 10139.5.