Judge Theresa M. Traber, Case 20STCV28986 2023-04-27 Tentative Ruling

Judge: Theresa M. Traber, Case: 20STCV28986, Date: 2023-04-27 Tentative Ruling

Case Number: 20STCV28986 Hearing Date: April 27, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 27, 2023 TRIAL DATE: NOT SET

CASE: Ana Vasquez, et al. v. Southern California Gas Co., et al.

CASE NO.: 20STCV28986; Consolidated with 22STCV12852

PETITION TO APPROVE MINOR’S COMPROMISE OF PENDING ACTION

MOVING PARTY: Plaintiff Ana Vazquez, individually and as Guardian ad Litem for Deysi Ortiz

RESPONDING PARTY(S): No opposition on eCourt as of 4/24/23

CASE HISTORY:

· 07/31/20: Complaint filed (this case)

· 12/11/20: First Amended Complaint filed (this case)

· 04/18/22: Complaint filed (consolidated case)

· 07/11/22: Consolidation ordered.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a personal injury action. Plaintiffs allege that a gas line in the house they rented exploded because the plastic gas pipe which was installed in the house was defective.

Plaintiffs bring a petition to approve a minor’s compromise of the pending action.

TENTATIVE RULING:

The Petition for Approval of Minor’s Compromise of the Pending Action is GRANTED.

DISCUSSION:

Petitioner Ana Vasquez, as parent and Guardian ad Litem of the minor claimant, Deysi Ortiz (age 5), 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 petition has 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:

Pursuant to the settlement with Defendants, the sole minor petitioner will receive $3,500,000. (Petition ¶ 11b, Attachment 10b-c.) The adult claimant and petitioner, Ana Vazquez will receive $58,900,000, and the remaining adult claimant Armando Ortiz will receive $3,000,000. (Id.)

This proportionally smaller recovery for the minor petitioner appears to be justified because, although she suffered severe burns necessitating extensive reconstructive surgery, her injuries have now fully healed. (Attachment 8c.)

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 not submitted with the Petition as strictly required by Rule of Court 7.951(6). (Attach. 17a.) However, the petition instead refers to the accompanying Declaration of Ana Vasquez in Support of the Petition, which contains the agreement for services as Exhibit 2. (Declaration of Ana Vasquez ISO Mot. Exh. 2.)

Petitioner’s counsel is seeking to recover $875,000 in attorney’s fees. (Petition ¶ 13a.) 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

(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 25% of the sum recovered on behalf of the minor claimant is a reasonable fee in proportion to the services provided. (Declaration of Steven V. Angarella ISO Petition § V.B.(1).)

Novelty and Difficulty

Plaintiff’s counsel contends that the issues were not novel or new to their firm, but were both factually and legally difficult, and the result achieved could not have been obtained without the experience and skill of counsel. (Id. V.B.(3).)

Amount Involved and Results Obtained

This case settled for a total of $65.4 million, with $3.5 million allocated to the minor claimant, after a successful mediation. (Id. § IV.)

Nature and Length of Professional Relationship

Plaintiffs’ counsel have been representing Plaintiffs for over four years, and purportedly had to reduce their caseload to accommodate this matter. (Id. § V.B.(6).)

Experience, Reputation, and Ability of Counsel

Plaintiffs’ counsel has been practicing law for more than 37 years, almost exclusively in cases involving catastrophic injury. (Id. § V.B.(7).)

Time and Labor Required

Plaintiffs’ counsel have been working this case for four years, and state that it involved extensive expert witness analysis, laboratory testing, and investigation. (Id. § V.B.(8).)

Acceptance of Case Precluding Other Employment

Plaintiffs’ counsel contends that, as a sole practitioner at a boutique law firm, his work on this case sharply limited his ability to litigate other cases. (Id. § V.B.(11).)

Contingent Fee

Plaintiffs’ counsel states this case was taken strictly on a contingency basis, and all costs and expenses, in the amount of $373,622.00, were borne by Plaintiffs’ counsel, who litigated this case for four years. (Id. § V.B.(13).)

The Court finds that Plaintiffs’ counsel has adequately demonstrated the reasonableness of the fee award.

Medical Bills:

The minor claimaint incurred $40,841.20 in medical expenses paid by Medi-Cal. (Petition ¶ 12b(4).) Medi-Cal has received notice of this claim. (Attach. 12(b)(4)(a); Exh. 3.) Further, Medi-Cal has agreed to a final payment in full satisfaction of their lien in the amount of $30,630.90. (Attach. 12b(4)(c); Exh. 4.)

Costs

Medical expenses in the amount of $30,630.90 and Attorney’s Fees in the amount of $875,000, which are owed by Petitioner, will be paid by the claimant, for a total of $905,630.90 in costs. (Petition ¶ 14.)

Amount to Be Paid to Minor:

The net amount to be paid to the minor claimant is $2,594,369.10. (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 claimant Deysi Ortiz is not required due to her age.

Prognosis:

The minor claimant is currently 5 years old. She has scars from her burn injuries on her upper forehead, her hands, left arm, left thigh and feet. Her burn injuries have fully healed. The child’s plastic and reconstructive surgeon, Dr. Jeffrey L. Rosenberg recommends that the child seek laser treatments to improve the appearance of her scars but proposes that she wait until she is older to have these treatments. (Attachment 8c.)

Disposition of Balance of Proceeds:

The petition states that the proceeds will be used to purchase a single premium deferred annuity issued by Untied of Omaha Life Insurance Company. (Attach. 18b(3).) The terms of that settlement are attached to the petition. (Exh. 7.) The minor claimant will receive $25,000 each month for 12 years beginning on her 18^th birthday, July 11, 2035. The claimant will also receive additional lump sums in the amount of $500,000 on July 11, 2035 and July 11, 2037, an additional $750,000 on July 11, 2042, and the remaining $802,540.43 on July 11, 2047. (Exh. 7.) The settlement is signed by the Petitioner as Guardian ad Litem of the minor claimant and dated March 9, 2023. (Id.)

Proposed Order MC-351:

Petitioners have filed a Proposed Order Form MC-351 for the minor claimant.

In light of the injuries suffered by the minor Plaintiff and the substantial sum secured for her benefit, the Court finds the settlement to be fair and adequate. As the petition is procedurally in order, the Petition for Approval of Minor’s Compromise is GRANTED.

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: April 27, 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.