Judge: Stephen Morgan, Case: 22AVCV00300, Date: 2023-04-25 Tentative Ruling

Case Number: 22AVCV00300    Hearing Date: April 25, 2023    Dept: A14

Background

This is a premises liability action. Plaintiff Maria Felix Lopez, an individual lacking decision-making capacity, by and through her Guardian ad Litem, Eudoxia Lopez, alleges that on or about June 13, 2020, Plaintiff was an invitee shopping at Defendant Home Depot USA, Inc. (“Home Depot)’s store, located at 44226 20th Street West, Lacaster, CA 93534 (the “Premises”), when she tripped and fell on  a damaged, uplifted, and unsecured area of tactile paving in the garden center, sustaining injuries. Plaintiff further alleges that the unsecured area of tactile paving was clearly missing a screw, nail, or rivet necessary to hold the tactile paving down to the ground, resulting in the tactile paving being uplifted from the surrounding asphalt and creating an unreasonable danger to Plaintiff and other invitees. Defendant Pavewest, Inc. (“Pavewest” and, with Hope Depot, “Defendants”) is alleged to be the installer, repairer, inspector, and maintainer of the pavement and walkways in and around the Premises. 

On April 27, 2022, Plaintiff filed her Complaint alleging one cause of action for Premises Liability through her Guardian ad Litem Celerino Lopez.

The Court expressed its concern over the designation of Celerino Lopez as Guardian ad Litem. Following this, Eudoxia Lopez applied as Guardian ad Litem for Maria Felix Lopez and was approved by the Court.

On June 06, 2022, Home Depot filed its Answer. 

On June 27, 2022, Pavewest filed its Answer. 

On January 13, 2023, Pavewest filed this Motion for Leave to File a Cross-Complaint, later withdrawn.

On April 10, 2023, Petitioner Eudoxia Lopez (“Petitioner”) filed this Petition to Approve the Compromise of Pending Action on Behalf of Claimant Maria Felix Lopez (“Claimant”).

Analysis

Standard for Approving a Compromise on Behalf of an Individual Without Capacity – 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.)

“To see that justice is done, [Cal. Code Civ. Proc.] section 187 authorizes a trial court to exercise its authority to approve a settlement of an incapacitated person's claims. (§ 187 [“When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.”]; cf. Misik v. D'Arco (2011) 197 Cal.App.4th 1065, 1072–1073 [130 Cal.Rptr.3d 123] [§ 187 authorizes trial court to amend a judgment to add a judgment debtor under the alter ego doctrine].)” (Carachure v. Scott (2021) 70 Cal.App.5th 16, 32-33 [also citing to Cal. Code Civ. Proc. § 128(a)(8) as powers of courts to approve a settlement of an incapacitated person’s claims].)

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 Claimant settled with Home Depot for $75,000.00 and with Pavewest for $7,500.00. The gross settlement proceeds amount to $82,500.00. $9,208.56 will be used to pay medical expenses, $ 27,497.25 will be used to pay attorney’s fees, and $1,007.05 will be used to pay non-medical expenses, leaving a balance of $ 44,787.14. A conservatorship of the estate of Claimant exists and Petitioner proposes that the proceeds be paid to the guardian or conservator of Claimant’s estate.

Regarding costs, Blair seeks to include subpoenaed medical records from medical providers as well as postage. Postage, telephone, and photocopying charges, except for exhibits, are specifically not allowable as costs, except when specifically authorized by law. (See Cal. Code Civ. Proc. § 1033.5(b)(3).) Cal. Code Civ. Proc. § 1033.5 does not explicitly authorize the recovery of subpoenaed medical records, nor does it disallow recovery of such costs. “Items not mentioned in this section and items assessed upon application may be allowed or denied in the court’s discretion.” (Cal. Code Civ. Proc. § 1033.5(c)(4).) The Court believes that, ultimately, the subpoenaed records aided in the resulting settlement and allows such recovery. The Court strikes the $2.76 in postage from the costs.

The Court finds the settlements are fair and reasonable. The Court also finds the requested attorney’s fees, which constitute 33.33% of the gross settlement amount reasonable as Petitioner had contracted with counsel, Matthew P. Blair (“Blair”), for a retainer with a contingency fee of 40%.

Conclusion