Case Number: BC656794 Hearing Date: October 19, 2018 Dept: 5

On September 21, 2018, Petitioner Charlotte Leluika, as the guardian ad litem for Joshua Leluika, filed an amended petition to approve the disposition of proceeds of judgment for a person with disability. The Court has reviewed the amended petition and finds the settlement fair and reasonable. The parties have an agreement for attorney’s fees, which is attached to the petition, Petitioner has submitted copies of the relevant medical report.

However, Petitioner must correct the following defects at or before the October 19, 2018 hearing before the amended petition may be approved:

1. There is no attorney declaration filed in compliance with CRC Rule 7.955(c). The Court’s September 19, 2018 order required Petitioner to correct this defect in the original petition filed September 7, 2018, but Petitioner has failed to do so. Since the last hearing, Counsel has submitted another declaration, but this declaration is identical to the original declaration. At the last hearing, Counsel argued that his request for attorney’s fees was proper as it complied with Business and Professionals Code § 6146. Compliance with § 6146 is not by itself enough for the Court to grant Counsel’s requested award of attorney’s fees. Section 6164 states the maximum percentage that an attorney may collect for attorney’s fees in a case such as this. Nothing in § 6164 states that the attorney is entitled to the maximum percentage of fees. Nor does § 6164 set forth an exception from the requirement that an attorney declaration be filed in compliance with CRC Rule 7.955(c). Under Rule 7.955, the Court must evaluate the reasonableness of the fees requested by the attorney in a case involving a minor’s compensation petition. There are 14 factors that the Court may consider in determining the reasonableness of the fees sought. (CRC 7.955 subd. (b).) Counsel has failed to address any of these factors in either declaration submitted to the Court. Before or at the October 19, 2018 hearing, Counsel must file and serve a written declaration sufficiently addressing the relevant factors under CRC 7.955 before the Court will approve this petition. (CRC 7.955 subd. (c).)

2. There is an inconsistency between items 16 and 17 of the amended petition (MC-350) and Attachment 11 to the amended petition as to the net balance of proceeds for the claimant after payment of all fees and expenses. Items 16 and 17 of the petition and item 7c(2) of the proposed order indicate that the net balance of proceeds is $4,828,334.00, which appears to be arithmetically correct. However, Attachment 11 of the amended petition states that the net balance of proceeds is $5,028,334.00. Before or at the October 19, 2018 hearing, Counsel must file and serve a corrected Attachment 11 if the $5,028,334.00 figure is erroneous.

3. Petitioner’s signature is missing from page 10 of the amended petition. As such, the amended petition is unverified. The Court’s September 19, 2018 order required Petitioner to correct this defect identified in the original petition filed September 7, 2018, but Petitioner has failed to do so. Before or at the October 19, 2018 hearing, Petitioner must file and serve an amended signature page (page 10 of the amended petition) bearing her signature.

4. Petitioner Counsel’s signature is also missing from page 10 of the amended petition. Before or at the October 19, 2018 hearing, Petitioner must file and serve an amended signature page (page 10 of the amended petition) bearing her Counsel’s signature.

5. The terms of the proposed Special Needs Trust state that the trustee, Wells Fargo Bank, will be paid according to a fee schedule. However, Petitioner has failed to attach a copy of the fee schedule to the petition or the proposed order. Before or at the October 19, 2018 hearing, Petitioner must file and serve a copy of the fee schedule so that the Court may review the reasonableness of this fee schedule before approving the petition or the terms of the trust.

6. Before or at the October 19, 2018 hearing, Petitioner must file and serve a declaration explaining the requested term of the trust listed on page 14 at paragraph 7 of the trust instrument. This provision would allow for the payment of $25 per hour to Petitioner for up to 12 hours of care per day. However, no explanation for this provision is provided in the petition. As such, the Court orders Petitioner to file and serve a declaration explaining the need for such a provision. Specifically, Petitioner must explain: (1) why she is seeking such payments, (2) why the amount per hour requested is reasonable, (3) what the Claimant’s needs are such that it would require Petitioner to be engaged in the proposed manner, (4) the number of hours she usually expends on care of the Claimant, (5) the duties Petitioner performs during such care giving, and (6) what other care is provided for Claimant in the home or elsewhere by persons other than Petitioner (i.e. are there in home nurses or has claimant been placed in a fulltime care facility, etc.). Either Petitioner or Counsel must also file and serve a declaration explaining why paragraph 7 requests that the Trustee “engage a third party to employ [Petitioner]” and that the “total gross sum of $25 per hour is not inclusive of payroll taxes, insurance, and any administrative fees charged by the third-party employer.” (Trust Document pp. 14-15.) If Petitioner were to be compensated for 12 hours per day, every day, at the rate of $25 per hour (totaling approximately $109,000 per year), that would be a significant draw on the trust resources with additional costs related to the hiring of the employment agency which would be the “employer” of Petitioner. The Court is concerned that such a large draw of resources from the trust, without more information, may not be in the best interests of the minor.

The Court is inclined to grant the petition as long as the above items are properly filed at or before the October 19, 2018 hearing.

Per CRC Rule 7.952, Petitioner and the Claimant are required to attend the hearing on the petition. However, given the age of the Claimant, the Court will allow that the Claimant does not need to be present at the hearing. The Court will therefore require attendance only of Petitioner at the hearing in order to grant the petition.