Case Number: EC055653    Hearing Date: August 01, 2014    Dept: NCD

TENTATIVE RULING (8-1-14)
#4
EC 055653
LEE v. CITY OF GLENDALE

Petition to Approve Compromise of Pending Action on behalf of Claimant Sun Jun Lee

TENTATIVE:
Petition is DENIED without prejudice.
The petition fails to attach copies of medical reports concerning the condition of the claimant.

BACKGROUND:

Moving Party: Petitioner Myungja Lee as GAL for Sun Jun Lee

SUMMARY OF FACTS:
Plaintiff Sung Jun Lee, a disabled adult, brings this action through his GAL alleging that on November 4, 2010, while plaintiff was attending an after school program at Freemont Park operated by defendants the City of Glendale, Glendale Unified School District, Easter Seals, the Frank D. Lanterman Regional Center (“the Center”), and/or Foothill Area Community Transition Services (“FACTS”), he was sexually assaulted and anally raped by a fellow student in the program in the facility’s restroom. The complaint alleges that defendants breached their duty to protect students, and knew or should have known that plaintiff and a fellow male student should not be permitted in a restroom unsupervised together.

After a series of demurrers were sustained, the City was dismissed from the action.

On May 11, 2012, plaintiff filed a Request for Dismissal of defendant Glendale Unified School District, which was entered the same date.

On December 7, 2012, the court, Judge Milton presiding, heard a motion for summary judgment brought by defendant Easter Seals of Southern California. The motion was granted. Plaintiff appealed the order granting summary judgment. The appeal was dismissed, with remittitur received by this court on December 18, 2013.

ANALYSIS:
The petition indicates that claimant has recovered completely from his injuries, but there are no doctor’s reports attached or reports of the current condition of the claimant.

Under CCP section 372, the “guardian ad litem…appearing for any…incompetent person…shall have the power, with the approval of the court in which the action or proceeding is pending, to compromise the same…”

A petition for court approval of such a compromise under this section must comply with CRC Rules 7.950, 7.951, and 7.952. CRC Rule 3.1384.

Rule 7.950 specifies the required content of a petition, stating that the petition “must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement or disposition.” In addition, “the petition must be prepared on a fully completed Petition to Approve Compromise…(form MC-350)”

The official mandatory form for the petition indicates that:
“An original or a photocopy of all doctor’s reports containing a diagnosis of and prognosis for the claimant’s injuries, and a report of the claimant’s present condition, must be attached to this petition as Attachment 9.”
[Form M-350, para. 9]

No doctor’s report is attached here, although the petition indicates that claimant has suffered medical expenses, received ER treatment, and undergone psychological evaluation/therapy/treatment. Without any information concerning the medical and psychological condition of the claimant other than the conclusory statements provided, the court does not have sufficient information bearing upon the reasonableness of the settlement.

The petition is denied without prejudice for failure to provide this required information.

The settlement is for the payment by Easter Seals of Southern California of $60,000.

Proceeds are to be distributed as follows:
Medical expenses: $4,000
Legal expenses advanced by counsel: $8,769.79
Attorney’s Fees : $19,998
Balance of Proceeds: $27,232.21. (paid to GAL)

The petition provides counsel’s declaration in support of the attorney’s fees claimed, and an itemization of the costs advanced, although the costs should be added to paragraph 14, Total. The fees are one-third of the settlement, when formerly fees were limited to 25% absent a declaration showing circumstances justifying higher fees. However, in this case, liability was heavily litigated, and the fees here likely exceeded the fees claimed.

The petition indicates that claimant has recovered completely from the effects of his injuries, and is not seeking medical expense damages. [Para. 9].