Judge: Yolanda Orozco, Case: BC678601, Date: 2022-07-28 Tentative Ruling

Case Number: BC678601    Hearing Date: July 28, 2022    Dept: 31

PETITION FOR APPROVAL OF MINOR’S COMPROMISE IS CONTINUED 

Background 

            The present action arises from a motor vehicle versus pedestrian accident, which occurred on October 5, 2016.  On the aforementioned date, Aimee Hernandez, Isabella Hernandez, and Dora Moran De Vasquez were walking westbound upon the intersection of 69th Street and Menlo Avenue in Los Angeles, California when a motor vehicle driven by Annette Green failed to observe and yield to the aforementioned pedestrians, causing a collision. 

            On October 5, 2017, Aimee Hernandez, a minor, by and through her guardian ad litem, Claudia C. Vasquez-Moran; Isabella Hernandez, a minor, by and through her guardian ad litem, Claudia C. Vasquez-Moran; and Dora Moran De Vasquez (collectively, “Plaintiffs”) initiated the present action by filing a Complaint against Annette Green; City of Los Angeles; County of Los Angeles; Los Angeles Unified School District; and Does 1 through 50 (collectively, “Defendants”). 

            On July 24, 2018, pursuant to Court Order, Claudia C. Vasquez-Moran was appointed as the guardian ad litem of Plaintiff Aimee Hernandez and Plaintiff Isabella Hernandez. 

            On September 4, 2018, Defendant City of Los Angeles filed a Cross-Complaint against Defendant Annette Green and Roes 1 through 10.  Defendant County of Los Angeles’ Cross-Complaint alleges the following causes of action: (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief. 

            On September 24, 2018, Defendant Annette Green filed a Cross-Complaint against Defendant City of Los Angeles and Does 1 through 30.  Defendant Annette Green’s Cross-Complaint alleges the following causes of action: (1) Indemnification; (2) Apportionment of Fault; and (3) Declaratory Relief. 

            On January 23, 2019, pursuant to the Stipulation entered between Plaintiffs and Defendant County of Los Angeles, Defendant City of Los Angeles was dismissed from this action, without prejudice. 

            On March 28, 2019, Plaintiffs filed the operative First Amended Complaint against Defendants Annette Green; City of Los Angeles; Los Angeles Unified School District; and Does 1 through 50.  Plaintiff’s First Amended Complaint alleges the following causes of action: (1) Negligence; (2) Statutory Liability/Dangerous Condition of Public Property; and (3) Negligent Infliction of Emotional Distress. 

            On June 26, 2019, Defendant Los Angeles Unified School District’s Demurrer to Plaintiff’s First Amended Complaint was sustained, without leave to amend. 

            On February 13, 2020, Defendant City of Los Angeles’ Motion for Summary Judgment against Plaintiff’s First Amended Complaint was granted by this Court. 

            Additionally, on February 13, 2020, Defendant Annette Green’s Motion for Determination of Good Faith Settlement, which requested a determination from this Court that the settlement between Defendant Annette Green and Plaintiffs was entered in good faith, was granted by this Court. 

            On March 10, 2020, following the Court’s ruling upon Defendant City of Los Angeles’ Motion for Summary Judgment, the Court entered judgment in favor of Defendant City of Los Angeles and against Plaintiffs upon Plaintiffs’ First Amended Complaint. 

            On June 23, 2022, Dora Moran De Vasquez filed a Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor (hereinafter, “Petition for Approval of Minor’s Compromise”), with respect to Plaintiff Isabella Hernandez (Age 14). 

Legal Standard 

An enforceable settlement of a minor’s claim or that of a person lacking the capacity to make decisions can only be consummated with court approval.  (Prob. Code, §§ 2504, 3500, 3600 et seq.; Code Civ. Proc., § 372; see Pearson v. Sup.Ct. (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. Sup. Ct. (1994) 23 Cal.App.4th 1378, 1382.) 

            A petition for court approval of a compromise pursuant to Code of Civil Procedure section 372 must comply with California Rules of Court, Rules 7.950, 7.951 and 7.952. 

            California Rules of court, Rule 7.950 provides, in relevant part, “[a] petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor’s disputed claim; a compromise or settlement of a pending action or proceeding to which a minor or person with a disability is a party; or the disposition of the proceeds of a judgment for a minor or person with a disability under Probate Code sections 3500 and 3600-3613 or Code of Civil Procedure section 372 must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition. Except as provided in rule 7.950.5, the petition must be submitted on a completed Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person With a Disability (form MC-350).”  (Cal. Rules of Court, Rule 7.950.) 

Discussion 

            Dora Moran De Vasquez (“Petitioner”) petitions this Court for approval of the compromise entered between Minor Plaintiff Isabella Hernandez (“Claimant Hernandez”), age 14, and Defendant Annette Green. 

            The following facts, requests, and representations are made within Petition for Approval of Minor’s Compromise.  

            Petitioner represents Claimant Hernandez, a pedestrian walking upon the intersection of 69th Street and Menlo Avenue in Los Angeles, California, was struck by a motor vehicle driven by Defendant Annette Green on approximately October 5, 2016.  (Petition, Section 5.)  As a result of the collision, Claimant Hernandez suffered “arm pain and swelling”, “emotional distress”, and “anxiety”.  (Id., Section 6.)  Claimant Hernandez has not fully recovered from her injuries, and notably continues to suffer from “nervousness and anxiety”.  (Id., Attachment 7.)  

            Petitioner represents Claimant Hernandez has entered into a Settlement Agreement with Defendant Annette Green for a sum of approximately $55,000.00 (“Settlement Proceeds”).  (Petition, Section 10.)  Petitioner represents approximately $11,340.00 was expended by a Non-ERISA insured plan for the payment of Claimant Hernandez’s medical expenses arising following the subject collision.  (Id., Sections 12a.(1), 12b(2)(c)(e).)  Petitioner represents “[n]o reimbursement is requested by the plan”, and accordingly, no portion of the Settlement Proceeds will be allotted to reimbursement or payment of medical expenses.  (Id., Sections 12a.(3), 12b.(2)(f)(i).)  

            Further, Petitioner proposes approximately forty-two percent (42%) of the Settlement Proceeds ($23,100.00) should be reserved for the payment of Claimant Hernandez’s counsel’s attorneys’ fees.  (Petition, Section 13a.)  Petitioner, additionally, proposes approximately $2,965.34 of the Settlement Proceeds should be reserved for the payment of Claimant Hernandez’s counsel’s expended costs of litigation.  (Id., Section 13b, Attachment 13b.) 

            Following the proposed reductions of attorneys’ fees and costs, Petitioner represents Claimant Hernandez’s net Settlement Proceeds would equal to approximately $28,934.66.  (Petition, Section 15.)  Petitioner proposes that Claimant Hernandez’s Settlement Proceeds be disbursed pursuant to deposit in an insured, blocked account.  (Petition, Section 18b.(2).) 

            After reviewing the Petition, the Court finds Petitioner’s Petition for Approval of Minor’s Compromise cannot be approved due to the following defects. 

 First, Petitioner has failed to comply with Section 8 of the Petition, by failing to include Attachment 8 “[a]n original or a photocopy of any doctor’s report containing a diagnosis of the claimant’s injuries or a prognosis for the claimant’s recovery, and a report of the claimant’s current condition”.  (Petition, Section 8.)  

Second, Petitioner has failed to comply with Section 10c. of the Petition, by failing to describe the “[t]erms of the settlement” entered between Claimant Hernandez and Defendant Annette Green.  (Id., Section 10c.)  

Third, while Petitioner states Defendant Annette Green has additionally settled with the two (2) other Plaintiffs in this action, Petitioner has failed to comply with Section 11b.(6) of the Petition, by failing to include Attachment 11b.(6) the “[r]easons for the apportionment of the settlement payments between the claimant and each other plaintiff or claimant named above”.  (Id., Section 11b.(6).)  

Fourth, while Petitioner represents “[n]o reimbursement is requested by the” Non-ERISA insured medical plan which paid Claimant Hernandez’s medical expenses, Petitioner fails to provide any proof thereof.  (Id., Sections 12a.(3), 12b.(2)(f)(i).).)  

Fifth, Petitioner has failed to comply with Section 13a. of the Petition, by failing to include Attachment 17a “a copy of any written attorney fee agreement”.  (Id., Section 13a.) 

Lastly, the Declaration of Claimant Hernandez’s counsel (Sharona Eslamboly Hakim, Esq.) is insufficient to support an award of attorneys’ fees equal to forty-two percent (42%) of the Settlement Proceeds.  The Declaration of Claimant Hernandez’s counsel fails to adequately describe the “novelty and difficulty of the questions involved, and the skill required to perform the legal services” rendered in this action, for the purposes of supporting an award of forty-two percent (42%) of the Settlement Proceeds.  The Declaration of Claimant Hernandez’s counsel merely states, “[m]any hours of attorney time and staff time has been devoted towards the settlement of this action”.  (Petition, Attachment 13a. ¶ 5.)  This is insufficient to support a greater than usual request for attorneys’ fees. 

            Based on the foregoing, Petitioner’s Petition for Approval of Minor’s Compromise, with respect to Claimant Hernandez, is continued to enable Petitioner to correct the above noted issues. 

Conclusion 

            Petitioner’s Petition for Approval of Minor’s Compromise, with respect to Claimant Hernandez, is CONTINUED to September 1, 2022, at 9 am.