Judge: Serena R. Murillo, Case: 20STCV41031, Date: 2023-04-20 Tentative Ruling

Case Number: 20STCV41031    Hearing Date: April 20, 2023    Dept: 29

TENTATIVE

On March 20, 2023, the Court reviewed the Expedited Petitions to Approve Minor’s Compromise, (Solara Ortiz, age 11). The Court declined to approve the Petitions as requested. Pursuant to Cal Rules of Court 7.950.5(c)(3), the Court elected to schedule a hearing date to permit counsel to correct the following issues:

(1)   The retainer agreement has not been attached to the petition.

(2)   Defendant was not served with the petition.

(3)   As this is an expedited minor’s compromise, all Defendants must have appeared and participated in the compromise OR the court must determine the settlement to be in good faith. It appears the County was named a defendant but has not appeared or been dismissed in this matter.

On March 30, 2023, Plaintiff filed a request to dismiss all parties. The Court cannot dismiss the case until Plaintiff’s counsel has filed an expedited minor’s compromise.

Pursuant to California Code of Civil Procedure, section 372(a), the guardian or conservator appearing for any minor or person who lacks legal capacity to make decisions “shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same…”  This is because a minor lacks legal capacity to make decisions and thus settlements on their behalf, absent court approval, are not binding contracts.  The requirement that a guardian ad litem must be appointed and that a judge must approve a proposed compromise of a ward’s claim exist to protect the ward’s best interests.  (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337-1338.)  Just as a minor or person with a disability lacks capacity to enter into a contract, a guardian ad litem lacks contractual capacity to settle the litigation without the court’s endorsement. (Id. at p. 1337-1338.) 

Moreover, the petition filed on behalf of the minor must disclose the attorney’s interests.  The Court of Appeal has recognized that attorney’s fees “come out of and therefore reduce the minor’s recovery.“ (Gonzalez v. Chen (2011) 197 Cal.App.4th 881, 887.)  Thus, they must be reviewed by the court.  These requirements exist independently of Probate Code section 3611 and are not contingent upon the settlement amount. 

Here, Plaintiff’s counsel has failed to rectify the issues cited with the petition for expedited minor’s compromise, and is requesting to dismiss the case.  Because the settlement on behalf of the minor was not approved by the court, it is not a binding contract.

Plaintiff must correct the first two issues outlined above, namely: Plaintiff has not yet filed the retainment agreement, or proof of service indicating Defendant has been served.

Accordingly, the Court schedules a hearing on this petition for May 19, 2023 at 1:30 p.m. in Department SS-29. Counsel is ordered to file a supplemental document with the retainer agreement and serve Defendant with the petition.

OSC re: Why monetary sanctions in the amount of $750 should not be imposed due to Plaintiff’s failure to correct the errors cited by the court in the petition for Minor’s Compromise, is also scheduled for May 19, 2023 at 1:30 p.m.

Moving party is ordered to give notice.