Case Number: BC538433 Hearing Date: May 09, 2016 Dept: 34

Moving Party: Claimants Destiny Marks, Demarione Marks, Dejon Marks, Daniel Ulises Cabral, Aurion Weathers, Janiyan Love, Zuya Gray, Manuel Alexix Cabral, Damarcus Marks, Sir Riley

Resp. Party: None

The Court GRANTS the petitions.

BACKGROUND:

Plaintiffs commenced this action on 3/5/14 against defendants for: (1) breach of the implied warranty of habitability; (2) breach of statutory warranty of habitability; (3) breach of the covenant of quiet enjoyment; (4) negligence; (5) violation of Civil Code section 1842.4; and (6) unlawful entry.

Plaintiffs in BC538434 commenced that action on 3/5/14 against defendants for the same six causes of action as BC538433. The Court deemed the two cases related on 9/5/14. The cases were consolidated on 10/23/14.

ANALYSIS:

The instant petitions were not timely served or filed. Moving papers must be filed and served at least 16 court days before the hearing, with a extensions were service is by mail. (See Code Civ. Proc., § 1005(b).) The instant petitions were served by mail on 4/18/16 – 15 court days before the hearing.

However, the Rutter Guide suggests that notice of the hearing is not required for petitions to approve minor’s compromise.

CCP § 372 and CRC 7.950 and 7.952 do not require a noticed motion and adversary hearing on a petition to approve compromise of a minor’s claim. It would thus “appear that a petition to approve or disapprove a minor’s compromise may be decided by the superior court, ex parte, in chambers.” [Pearson v. Sup.Ct. (Nicholson) (2012) 202 CA4th 1333, 1337-1338, 136 CR3d 455, 457, fn. 2 (dictum)]

(Weil & Brown, Civ. Proc. Before Trial (The Rutter Group 2015) ¶ 12:579.)

Thus, the Court will consider the petitions. Further, these petitions are unopposed; since the Court is inclined to grant the petitions for the reasons indicated below, to require counsel to re-submit and re-serve the pleadings would not be in the interests of justice. (See CCP § 475.)

Petitions To Approve Minors’ Compromise

The claimants include proposed orders for the petitions. (Scruton v. Korean Air Lines Co., Ltd. (1995) 39 Cal.App.4th 1596, 1603 05; see also Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2011) ¶ 12:572 [stating that a petition for court approval must comply with Cal. Rules of Court, rules 7.950, 7.950.5, 7.951 and 7.952].)

Pursuant to Probate Code § 3600(a)(2), a court may approve a compromise of a pending action or proceeding to which a minor or person with a disability is a party. Upon making such an Order,

[t]he court . . . shall make a further order authorizing and directing that reasonable expenses, medical or otherwise and including reimbursement to a parent, guardian, or conservator, costs, and attorney’s fees, as the court shall approve and allow therein, shall be paid from the money or other property to be paid or delivered for the benefit of the minor or person with a disability.

(Probate Code § 3601(a).)

The petitions state that defendant BTS, LP has agreed to pay a total settlement amount of $1,000.00 for each claimant. (Pet., ¶ 11.) No medical expenses are to be reimbursed from the settlement proceeds. (See id., ¶ 13.)

The petitions indicate that the payments will be deposited in insured accounts in one or more institutions in this state, subject to withdrawal only upon authorization of this Court. (Pets., ¶ 19(b)(2).) Petitioners are required to include as Attachment 19b(2) the name, branch, and address of the depository. (Ibid.) The petitions include this information. (See id., Attach. 19b(2).)

Under California Rules of Court, rule 7.953(a),

in any case in which the court orders that funds to be received by a minor . . . must be deposited in a financial institution and not disturbed without further order of the court, the order must include a provision that a certified or filed endorsed copy of the order must be delivered to a manager at the financial institution where the funds are to be deposited, and that a receipt from the financial institution must be promptly filed with the court, acknowledging receipt of both the funds deposited and the order for deposit of funds.

The proposed orders include this provision. (See Orders to Deposit Money Into Blocked Account, ¶ 6.)

Petitioners request that the Court approve the award of attorney’s fees and litigation costs for each claimant in the amount of $294.45. (See Pets., ¶ 14.) This is comprised of $235.18 in attorney’s fees and costs of $59.27 per plaintiff.

For all cases under Code of Civil Procedure section 372 or Probate Code section 3600-3601, “unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney’s fees payable from money or property paid or to be paid for the benefit of a minor . . . .” (Cal. Rules of Court, rule 7.955(a)(1).) The court may give consideration to the terms of any representation agreement made between the attorney and the representative of the minor when determining whether the fee is reasonable. (Id., rule 7.955(a)(2).) The court may consider the following factors in determining a reasonable attorney’s fee:

(1) The fact that minor . . . is involved and the circumstances of that minor . . . .
(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 requisite to perform the legal service 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 . . . .
(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 agreement applicable to particular cases or claims.

(Cal. Rules of Court, rule 7.955(b).) A petition requesting court approval and allowance of an attorney’s fee must include a declaration from the attorney that addresses the factors listed above that are applicable to the matter before the court. (Id., rule 7.955(c).)

Petitioners’ attorney discloses his interest in accordance with Rule 7.951. (Pets., ¶ 14.) Counsel has provided a separate declaration wherein he declares that the 25% fee is charged pursuant to his retainer agreement with plaintiffs. (Chapman Decl., ¶ 4.) The declaration addresses some of the issues in rule 7.955(b). (Id., ¶¶ 2-5.) Counsel provides a copy of an attorney retainer agreement. (See Pets., Attachment 18a.)

The petitions include explanations as to the settlement payments to others. (See Pets., ¶ 12, Exh. 12.) The petitions include summaries as to the net balance due to each claimant. (Pets., ¶ 17.)

The Court GRANTS the petitions approving the minor’s compromises.