Judge: Stephen Morgan, Case: 20AVCV00857, Date: 2022-08-04 Tentative Ruling

Case Number: 20AVCV00857    Hearing Date: August 4, 2022    Dept: A14

Background

 

This is a suit arising out of the sexual harassment and sexual battery of a minor.  Plaintiff Jane Roe, a minor, by and through her Guardian ad litem, Mary Doe (“Plaintiff”), alleges that Mahari Faaborg ("Faaborg"), an ROTC instructor at Knight High School who became Plaintiff’s homeroom teacher and counselor, paid excessive and inappropriate attention to Plaintiff eventually leading to sexual assault while Plaintiff was inebriated during a Saturday class. Plaintiff claims that Faaborg introduced her to marijuana, sent sexually explicit text messages and emails, and continued the sexual assault until the close of the school year in 2019 both on and off school campus. Plaintiff further alleges that Antelope Valley Union High School District (“AVUHSD”) through its employees, including Vice-Principal Michael Ybarra (“Ybarra,” or with AVUHSD, “Defendants”), failed to take any action to safeguard and to prevent the sexual abuse of Plaintiff.

 

On December 04, 2020, Plaintiff Jane Roe, minor by and through their guardian ad litem, Mary Doe, filed a complaint against AVUHSD, Ybarra, and Faaborg for (1) Negligence, Negligent Supervision/Failure to Warn, and Negligent Hiring and Retention against AVUHSD, (2) Sexual Battery against Faaborg, (3) Negligent Failure to Warn, Train, or Educate Plaintiff; Sexual Discrimination and Harassment; Violation of Civil Code §51 and 52a; and Intentional Infliction of Emotional Distress (“IIED”) against all defendants. 

 

On May 4, 2021, Petitioner Mary Doe (“Petitioner”) filed a petition to approve the compromise of pending action on behalf of Minor Claimant.

 

Analysis

 

Standard for Approving Minor’s Compromises – Court approval is required for all settlements of a minor’s claim or that of a person lacking the capacity to make decisions.  (Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., § 372; see Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1337.)

 

“[T]he protective role the court generally assumes in cases involving minors, [is] a role to assure that whatever is done is in the minor’s best interests . . . .  [I]ts primary concern is whether the compromise is sufficient to provide for the minor’s injuries, care and treatment.”  (Goldberg v. Superior Court (1994) 23 Cal.App.4th 1378, 1382.) 

 

A petition for court approval of a compromise or covenant not to sue under Code of Civil Procedure section 372 must comply with California Rules of Court Rules 7.950, 7.951, and 7.952.  The petition must be verified by the petitioner and contain a full disclosure of all information that has “any bearing upon the reasonableness” of the compromise or the covenant.  (Cal. Rules of Court, rule 7.950.)  The person compromising the claim on behalf of the minor or person who lacks capacity, and the represented person, must attend the hearing on compromise of the claim unless the court for good cause dispenses with their personal appearance.  (Cal. Rules of Court, rule 7.952(a).)

 

An order for deposit of funds of a minor or person lacking decision-making capacity and a petition for the withdrawal of such funds must comply with California Rules of Court Rules 7.953 and 7.954.  (Cal. Rules of Court, rule 3.1384; see also Super. Ct. L.A. County, Local Rules, rules 4.115-4.118.)

 

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The petition shows that Minor Claimant Jane Roe settled with AVUHSD and Ybarra for a total amount of $1,750,000.00. $0.00 will be used to pay medical expenses, $525,000.00 will be used to pay attorney’s fees, and $10,941.70 will be used to pay non-medical expenses, leaving a balance of $1,214,058.30. Petitioner proposes that: (1) $600,000.00 be deposited into an insured account, (2) $600,000.00 invested in a single-premium deferred annuity, and (3) $14,058.30 be held on ay conditions the Court determines are in the best interest of the minor. The Court finds the settlement fair and reasonable. 

 

However, despite the petition stating that there are no medical expenses (No. 12), the summary states that the $14,058.30 is for medical expenses to be paid from the proceeds of the settlement (No. 16(b)). Further, it appears that counsel seeks the $14,058.30 be placed in an attorney trust account, pending the finalization of any MediCal lien (No. 20) despite the fact that no lien has been claimed (see No. 12). There is also no attachment for 18(b)(8) which is also regarding the $14,058.30 and has been referenced various times in the petition. It is unclear to the Court what the $14,058.30 will actually be used for.

 

Regarding attorney’s fees, the attorney’s fees requested constitute 30%. Courts typically limit attorney’s fees to 25% in minor’s compromises. The Court must apply a reasonable fee standard in approving attorney's fees in a minor's compromise petition. (Cal. Rules of Court, Rule 7.955(a).) Attorney’s fees must be analyzed in accordance with the 14 factors set forth in Cal. Rules of Court, Rule 7.955(b). (See Gonzales v. Chen (2011) 197 Cal.App.4th 881, 885.) One of the Cal. Rules of Court, Rule 7.955(b) factors is “[t]he informed consent of the representative of the minor or person with a disability to the fee.” (Rule 7.955(b)(9).) Counsel declares that he believes a fee of 30% is justified (Decl. Ogbogu ¶ 18), but does not provide his retainer with Plaintiff’s Guardian ad Litem, Mary Doe. The Court requests the retainer in order to consider one of the 14 factors of Cal. Rules of Court, Rule 7.955(b).

 

 

Conclusion

 

The Petition to Approve the Compromise of Pending Action on Behalf of Minor Claimant Jane Roe is DENIED.