Judge: Salvatore Sirna, Case: 23PSCV03187, Date: 2025-04-14 Tentative Ruling
Case Number: 23PSCV03187 Hearing Date: April 14, 2025 Dept: G
Petitioner Jose Antonio Avalos’
Petition for Expedited Approval of Compromise of Claim or Action or Disposition
of Proceeds of Judgment for Minor or Person with a Disability
Respondent: NO
OPPOSITION
TENTATIVE RULING
Petitioner Jose
Antonio Avalos’ Petition for Expedited Approval of Compromise of Claim or
Action or Disposition of Proceeds of Judgment for Minor or Person with a
Disability for Claimant Jaselle Avalos, a Minor is CONTINUED to a date to be determined in Department G
(Pomona).
BACKGROUND
This is a personal
injury action arising from a motor vehicle collision. On October 16,
2021, plaintiffs Jessica Avalos and Jaselle Avalos (collectively, Plaintiffs) were
driving along Azusa Cayon Road when defendant Adrian Esparza made a left turn
in front of Plaintiffs’ vehicle.
On October 13,
2023, Plaintiffs filed a complaint against defendants Adrian Esparza, Violeta
Esparza (collectively, Defendants), and Does 1 through 30, alleging a cause of
action for motor vehicle negligence.
On October 20,
2023, the court approved an application and order for appointment of guardian
ad litem, appointing Jose Antonio Avalos as guardian ad litem for Jaselle
Avalos.
On July 2,
2024, Plaintiffs filed a notice of settlement of the entire case.
On March 24,
2025, Jose Antonio Avalos filed this present petition. A hearing on the
petition is set for April 14, 2025, along with an order to show cause re:
dismissal (settlement).
ANALYSIS
Petitioner Jose
Antonio Avalos (Petitioner) petitions for the court’s approval of a $15,000 settlement
reached between claimant Jaselle Avalos (Claimant) and Defendants. For the following reasons, the court CONTINUES
the hearing on the present petition.
Legal Standard
An enforceable
settlement of a minor’s or incompetent’s claim can only be consummated with
court approval. (Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., §
372.) For this purpose, a petition for approval must be presented to the court
and until it is granted, there is no final settlement. (Scruton v. Korean
Air Lines Co. (1995) 39 Cal.App.4th 1596, 1603-1606.) Any settlement
agreement therefore is voidable by the minor’s guardian ad litem. (Id.
at p. 1606.)
Probate Code
section 3600, et seq., governs how the settlement proceeds are to be paid. Under
Probate Code section 3601, the order shall approve payment of reasonable
expenses from the settlement as follows:
The court making the order or
giving the judgment referred to in Section 3600, as a part thereof, shall make
a further order authorizing and directing that such reasonable expenses
(medical or otherwise and including reimbursement to a parent, guardian, or
conservator), costs, and attorney’s fees, as the court shall approve and allow
therein, shall be paid from the money or other property to be paid or delivered
for the benefit of the minor or incompetent person. (Prob. Code, § 3601, subd.
(a).)
In cases
pursuant to Probate Code section 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.” (Cal. Rules of Court, rule 7.955(a)(1).) In doing so, “[t]he 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.” (Cal. Rules of Court, rule 7.955(a)(2).)
Discussion
Pursuant to the
settlement agreement reached between the parties, Defendants agree to pay a
total of $15,000 to Claimant. (Petition, ¶ 11.) The
Petition requests $3,750 in attorney fees and $300 in costs. (Petition, ¶ 14.) However,
the Petition fails to include a declaration from the attorney explaining the
basis for the fees, a written attorney fee agreement, and any supporting
documentation that establishes the costs incurred.
Petitioner states that
Claimant has completely recovered from the accident but does not include a
doctor’s report diagnosing Claimant’s injuries or Claimant’s recovery, or a
report of Claimant’s current condition. (Petition, ¶ 9(a).)
Petitioner claims that there are $7,406
in medical expenses but states that $3,300 will be paid or reimbursed from the proceeds.
(Petition, ¶ 13(a).) Petitioner does not explain why the total medical expenses
differ from the amount to be paid or reimbursed.
Additionally, Petitioner claims that Philomena
N. Nzegge, Esq., Claimant’s counsel, only represents Claimant. (Petition, ¶ 18(a).) However, the complaint asserts that Nzegge is
the attorney for both Jessica Avalos and Claimant. (Compl., p. 1.) The court’s
file indicates that attorney Nzegge has not filed a motion to be relieved as
counsel of record for Jessica Avalos.
Petitioner states that $7,650 will be
deposited in insured accounts but does not provide the name, branch, and
address of each depository. (Petition, ¶ 19(b)(2).)
In determining whether to grant a
guardian ad litem’s petition to approve a settlement of the ward’s claims, a
court must determine whether it is reasonable and in the minor’s best interest.
(Chui v. Chui (2022) 75 Cal.App.5th 873, 899.) Here, the court finds the
Petition is insufficient. Thus, the court will require Claimant’s counsel to
submit supplemental briefing that outlines why this settlement is reasonable
and why it is in the minor’s best interest.
Accordingly, the court CONTINUES the
hearing on the present petition to a date to be determined in Department G
(Pomona) and orders Claimant’s counsel to file a supplemental declaration and
briefing that addresses the issues noted above no later than nine (9) court
days before the hearing scheduled in Department G.
CONCLUSION
Based on the foregoing, Claimant’s petition
for approval of a minor’s compromise is CONTINUED to a date to be
determined in Department G (Pomona). Claimant’s counsel is further ordered to
file a supplemental declaration and briefing that:
(1) outlines why the proposed compromise
is reasonable and in Claimant’s best interest;
(2) explains the requested attorney fees;
(3) provides a written
attorney fee agreement;
(4) provides an
outline and supporting documentation for the costs requested;
(5) includes an original or a photocopy
of any doctor’s report containing a diagnosis of Claimant’s injuries or a
prognosis for Claimant’s recovery;
(6) includes a report of Claimant’s
current medical condition;
(7) explains why the total medical
expenses differ from the amount to be paid or reimbursed;
(8) explains how Claimant’s counsel only
represents Claimant when Claimant’s counsel has not filed a motion to be
relieved as counsel as to Jessica Avalos; and
(9) provides the name, branch, and
address of each depository.
Such briefing is due to the court no
later than nine (9) court days before the next hearing on the present petition.