Judge: Theresa M. Traber, Case: 20STCV01904, Date: 2023-08-25 Tentative Ruling
Case Number: 20STCV01904 Hearing Date: August 25, 2023 Dept: 47
Tentative Ruling
Judge Theresa M. Traber, Department 47
HEARING DATE: August 25, 2023 TRIAL
DATE: NOT SET
CASE: Adam Hochschuler, et al. v. Growing
Generations, LLC, et al.
CASE NO.: 20STCV01904 
PETITION
TO APPROVE MINOR’S COMPROMISE OF PENDING ACTION
MOVING PARTY: Petitioner David Dahn, parent and guardian ad litem of
Austin Dahn
RESPONDING PARTY(S): No response on
eCourt as of 8/23/23.
CASE
HISTORY:
STATEMENT
OF MATERIAL FACTS AND/OR PROCEEDINGS:
This is a contractual fraud action. Plaintiffs allege that they
contracted with Defendants to help them have children via a surrogate with
specific characteristics known to increase the chances for a successful
surrogacy, but Defendants concealed their surrogate’s health problems and
falsely represented she was free of any health complications. Plaintiffs ended
up losing one twin and the other was born prematurely with medical
complications.
Petitioner David Dahn, as parent
and Guardian ad Litem of Austin Dahn, seeks court approval for compromise of a
minor’s claim in the pending action.
TENTATIVE RULING:
The Petition for Approval of
Minor’s Compromise of the Pending Action is GRANTED.
DISCUSSION:
Petitioner David Dahn, as parent
and Guardian ad Litem of Austin Dahn (age 4), seeks approval of the minor’s
compromise with Defendants.
Legal Standard
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.)
Form MC-350 (Rev. January 1, 2021):
The petitions have been verified by
Petitioners and presented on a fully completed mandatory Judicial Council Form
MC-350, using the current January 1, 2021 revision. (Cal. Rule of Court Rule
7.950.)
Settlement:
Plaintiffs are a household
consisting of two adults and one minor whose severe congenital health problems
were the subject of this action. Pursuant to the settlement with Defendants, the
adult parents, David Dahn and Adam Hochshuler, will receive $607,500, each,
while the minor will receive $2,835,000. (¶¶ 10b, 11b(5).)
The petition does not directly
explain the distribution of the recoveries but given the lengthy list of
congenital health problems suffered by the minor claimant which are alleged to
be the result of Defendants’ misconduct, the Court finds the distribution of
recoveries to favor the minor claimant is justified. (See generally TAC.)
Attorney’s Fees
The retained attorney’s information
has been disclosed as required by Rule of Court 7.951. (Petition ¶ 17b.) There is an agreement for services provided
in connection with the underlying claim. (Petition ¶ 17a(2).) A copy of the agreement was submitted with
the Petition as strictly required by Rule of Court 7.951(6). (Attach. 17a.)
Petitioners’
counsel is seeking to recover $945,000 in fees for this petition. (Petition ¶¶13a,
17f.) Counsel has provided a declaration addressing the reasonableness of the
fee request, as required by Rule of Court 7,995(c), accounting for the factors
specified in Rule of Court 7,955(b). CRC Rule 7.955(b) provides:
(b) Factors the court may consider in
determining a reasonable attorney's fee.
In determining a reasonable attorney's fee, the court may consider the
following nonexclusive factors:
(1) The fact that a minor or person with a
disability is involved and the circumstances of that minor or person with a
disability.
(2) The amount of the fee in proportion to the
value of the services performed.
(3) The novelty and difficulty of the
questions involved and the skill required to perform the legal services
properly.
(4) The amount involved and the results
obtained.
(5) The time limitations or constraints
imposed by the representative of the minor or person with a disability or by
the circumstances.
(6) The nature and length of the professional
relationship between the attorney and the representative of the minor or person
with a disability.
(7) The experience, reputation, and ability of
the attorney or attorneys performing the legal services.
(8) The time and labor required.
(9) The informed consent of the representative
of the minor or person with a disability to the fee.
(10) The relative sophistication of the
attorney and the representative of the minor or person with a disability.
(11) The likelihood, if apparent to the
representative of the minor or person with a disability when the representation
agreement was made, that the attorney's acceptance of the particular employment
would preclude other employment.
(12) Whether the fee is fixed, hourly, or
contingent.
(13) If the fee is contingent:
(A) The risk of loss borne by the attorney;
(B) The amount of costs advanced by the attorney; and
(C) The delay in payment of fees and reimbursement of costs paid by the
attorney.
(14) Statutory requirements for representation
agreements applicable to particular cases or claims.
(Cal. Rules of Court Rule 7.955(b).) The Court addresses
these factors below.
Amount
of Fee in Proportion to Value of Services Performed
Plaintiff’s
counsel contends that an attorney fee of 33 1/3% of the sum recovered on behalf
of the minor claimants is a reasonable fee in proportion to the services
provided, based on his skills, experience, and common practice. (Attach. 13a) ¶¶
19, 21.)
Novelty
and Difficulty
Plaintiff’s
counsel does not directly speak to novelty but does state that this case was
quite burdensome due to the extensive discovery and motion practice. (¶ 33.)
Amount
Involved and Results Obtained
Plaintiff’s
counsel also does not speak directly to the results obtained, but the Court
observes that the settlement award of more than $2.8 million is substantial on
its face.
Nature
and Length of Professional Relationship
Plaintiffs’
counsel have been representing Plaintiffs since November 2019. (Attach. 17a
Retainer Agreement.)
Experience,
Reputation, and Ability of Counsel
Plaintiffs’
counsel testifies extensively to his skills and experience, including numerous
jury trials with favorable verdicts in some 38 years of practice. (Attach. 13a
¶¶ 22-31.)
Time and
Labor Required
Plaintiffs’
counsel states that his office spent “hundreds of hours” on this matter. (¶
20.)
Acceptance
of Case Precluding Other Employment
Plaintiffs’
counsel states that the scale and extent of the litigation in this matter
precluded other employment. (¶ 33.)
Contingent
Fee
Plaintiffs’
counsel states this case was taken strictly on a contingency basis, but the
adult Plaintiffs made regular payments to cover case costs. (Attach 13a. ¶
17.)
Based on
the foregoing, the Court finds that Plaintiff’s counsel has justified the fees
sought.
Medical Bills:
Plaintiffs
have incurred millions of dollars in medical expenses. According to the
petition, $1,067,352.28 was paid by private insurance and an ERISA self-funded
plan. (Petition ¶ 12(b)(2)(b-c).) There is a contractual reduction of
reimbursement in the amount of $220,417.44 and a negotiated reduction of
$671,934.84, leaving $175,000.00 to be reimbursed from settlement proceeds. (¶
12(b)(2)(f).
Costs
Petitioners’ counsel is seeking to
recover $945,000 in fees, plus $100,790.23 for reimbursement of a Negotiated
Conduent Lien by Synergy Settlement Services, for a total of $1,045,790.23,
plus medical expenses. (Petition ¶¶13a, 14, 17f.)
Amount to Be Paid to Minor:
The net amount to be paid to the minor
is $1,614,209.77. (Petition ¶ 15.)
Court Appearance:
California
Rule of Court 7.952 requires attendance by the petitioner and claimant unless
the court for good cause dispenses with their personal appearance. The Court
finds that the appearance of the claimant Adam Dahn is not required due to his
age.
Disposition of Balance of Proceeds:
The
petitions request that the balance of the proceeds be paid to an insured
account subject to withdrawal only on authorization of the Court. (Petition ¶
18(a)(2).) The petition specifies the name, branch, and address of the
institution as the Preston Center branch of Bank of America. (Attach.
18(a)(2).)
Proposed Order MC-351:
Petitioner
has filed a Proposed Order Form MC-351 for the minor claimant.
Based on
the foregoing, the Court finds that the settlement of the minor’s claim is fair
and reasonable. The petition for compromise of the minor’s claim is therefore
approved.
CONCLUSION:
Accordingly, the Petition for Approval of
Minor’s Compromise of the Pending Action is GRANTED.
Moving
Party to give notice.
IT IS SO ORDERED.
Dated: August 25,
2023 ___________________________________
Theresa
M. Traber
Judge
of the Superior Court
Any party may submit on the
tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day
before the hearing. All interested parties must be copied on the email. It
should be noted that if you submit on a tentative ruling the court will still
conduct a hearing if any party appears. By submitting on the tentative you
have, in essence, waived your right to be present at the hearing, and you should
be aware that the court may not adopt the tentative, and may issue an order
which modifies the tentative ruling in whole or in part.