Judge: Theresa M. Traber, Case: 21STCV34274, Date: 2023-07-11 Tentative Ruling

Case Number: 21STCV34274    Hearing Date: July 11, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     July 11, 2023              TRIAL DATE: NOT SET

CASE:                         Maria Paxtor Chaj, et al., v. 427 Westlake Apartments, LP, et al.

CASE NO.:                 21STCV34274           

PETITION TO APPROVE MINOR’S COMPROMISE OF PENDING ACTION (x4)

MOVING PARTY:               Plaintiff Maria Paxtor Chaj, individually and as Guardian ad Litem for Edison Hernandez-Paxtor, Christopher Hernandez-Paxtor,  Jonathan Hernandez-Paxtor, and Brisayda Hernandez-Paxtor

RESPONDING PARTY(S): No opposition on eCourt as of 7/10/23

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a habitability action that was filed on September 16, 2021. Plaintiffs allege that Defendants failed to properly maintain the apartment complex in which Plaintiffs reside, despite numerous serious defects in habitability, including vermin infestation and defective plumbing, among other issues.

Plaintiffs bring a set of petitions to approve four minors’ compromises of the pending action.

TENTATIVE RULING:

The Petitions for Approval of Minor’s Compromise of the Pending Action are GRANTED.

DISCUSSION:

Petitioner Maria Paxtor Chaj, as parent and Guardian ad Litem of the minor claimants Edison Hernandez-Paxtor (age 6), Christopher Hernandez-Paxtor (age 9), Jonathan Hernandez-Paxtor (age 12), and Brisayda Hernandez-Paxtor (age 14), seeks approval of the minors’ compromises 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 single family of five adults and four minor children. (Petition Attachment 11b(2).)  Pursuant to the settlement with Defendants, each minor will receive $2,500; while adult petitioners Maria Paxtor Chaj and Rolando Hernandez Tzita will receive $25,000 each, and Pablo Paxtor Chaj, Marina Tzita Paxtor, and Hector Tzita Pastor will each receive $20,000. (Id.)

The proportionally smaller recoveries for the minor petitioners appear to be justified due to the fact that the majority of the damages for which the settlement is intended to compensate include rent paid and property damaged during the uninhabitable period. (Id.)

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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(2).)

Petitioner’s counsel is seeking to recover $625 in attorney’s fees on each of the four petitions, for a total of $2,500 in 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

   (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 25% of the sum recovered on behalf of the minor claimant is a reasonable fee in proportion to the services provided. (Declaration of Rachel Fishenfeld ISO Petition ¶ 4.)

            Novelty and Difficulty

            Plaintiff’s counsel does not directly speak to novelty or difficulty, but states that the case required extensive investigation, discovery, and negotiation, including efforts to educate the parties as to what happened and why settlement was appropriate. (Id. ¶ 7.)

            Amount Involved and Results Obtained

            Plaintiff’s counsel does not directly address this factor, but the petitions demonstrate that this case settled for a total of $120,000. (Petition ¶ 11(b)(1).)

            Nature and Length of Professional Relationship

            Plaintiffs’ counsel have been representing Plaintiffs since 2020. (Fishenfeld Decl. ¶ 4.)

            Experience, Reputation, and Ability of Counsel

            Plaintiffs’ counsel does not offer any testimony as to their experience, reputation, or ability.

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            Time and Labor Required

            Plaintiffs’ counsel has been working this case for three years, and state that it involved extensive investigation, discovery, and negotiation, including efforts to educate the parties as to what happened and why settlement was appropriate. (Id. ¶ 7.)

            Acceptance of Case Precluding Other Employment

            Plaintiffs’ counsel does not address whether acceptance of this case precluded other employment.

            Contingent Fee

            Plaintiffs’ counsel states this case was taken strictly on a contingency basis, and all costs and expenses, in the amount of $866.47 for each petition, for a total of $3,465.88, were borne by Plaintiffs’ counsel. (Id. ¶ 11.)

            The Court finds that, although Plaintiffs’ counsel has not addressed all the factors, Plaintiffs’ counsel has adequately demonstrated the reasonableness of the fee award considering the small fee awards requested.

Medical Bills:

            No medical expenses have been incurred. (Petition ¶ 12.)

Costs

            Attorney’s fees in the amount of $625, plus costs in the amount of $866.47, which are owed by Petitioner, will be paid by each claimant, for a total of $1,491.47 in costs for each claimant and a combined total of $5,965.88 in costs. (Petition ¶ 13.)

Amount to Be Paid to Minor:

The net amount to be paid to each minor claimant is $1008.53. (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 claimants Edison Hernandez-Paxtor, Christopher Hernandez-Paxtor, Jonathan Hernandez-Paxtor, and Brisayda Hernandez-Paxtor Edison Hernandez-Paxtor are not required due to their age.

Prognosis:

            The minors have completely recovered from their injuries. (Petition ¶ 8.)

Disposition of Balance of Proceeds:

            The petitions request that the balance of the proceeds be paid to the parent of the minor, Maria Paxtor Chaj, pursuant to Probate Code sections 3401 and 3402, without bond. (Attach. 18b(5).) The petitions provide the name and address of the parent who is to receive the money. (Id.)

Proposed Order MC-351:

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

            The Court finds the settlement to be fair and adequate. As the petitions are procedurally in order, the Petitions for Approval of Minor’s Compromise are GRANTED.

CONCLUSION:

Accordingly, the Petitions for Approval of Minor’s Compromise of the Pending Action are GRANTED.

Moving Party to give notice.

IT IS SO ORDERED.

Dated:  July 11, 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.