Case Number: BC469841    Hearing Date: August 12, 2014    Dept: 93

Superior Court of California
County of Los Angeles
Department 93

CYNTHIA Y. TORRES, et al.,
Plaintiff(s),

v.

COUNTY OF LOS ANGELES, et al.;
Defendants.

Case No.: BC469841

Hearing Date: August 12, 2014

[TENTATIVE] ORDER RE: PETITION TO APPROVE COMPROMISE OF DISPUTED CLAIM ON BEHALF OF A MINOR AND PETITION FOR APPROVAL OF SPECIAL NEEDS TRUST

This matter came on for hearing on the Petition of Gricelda Torres on behalf of minor Nathan Octavio Mendoza. On April 1, 2014, the Court conditionally approved the compromise of minor upon the creation of a special needs trust.

The Court has reviewed and considered the Petition for Approval of the Proposed Special Needs Trust filed on June 18, 2014, and the First Supplement to Petition filed on July 11, 2014. The Court conditionally approves the Special Needs Trust upon submission of an amended Order and proof of the filing of a bond, as set forth below.

BACKGROUND

Petitioner seeks authority to establish the special needs trust so that the proceeds of the minor’s compromise may be placed in the trust.

PROPOSED SPECIAL NEEDS TRUST:

The Court has reviewed the petition for approval of the proposed special needs trust and the proposed special needs trust, as amended by the 1st supplement filed July 11, 2014, and finds that it complies with the applicable Probate Code sections and Rules of Court (“CRC”).

Under Probate Code sections 3602-3613, the court may establish a special needs trust and direct that the proceeds of an award for a minor or a person with a disability be placed into the special needs trust. Under Probate Code section 3604(b), a special needs trust may be established and continued when the court makes the following three findings:

(1) That the minor or person with a disability has a disability that substantially impairs the
individual’s ability to provide for the individual’s own care or custody and constitutes a
substantial handicap;
(2) That the minor or person with a disability is likely to have special needs that will not be met without the trust; AND
(3) That money to be paid to the trust does riot exceed the amount that appears reasonably
necessary to meet the special needs of the minor or person. with a disability.
The petition itself does not describe minor Nathan O. Mendoza’s disabilities. However, Article 2, Section 2.2 describes his diagnosis of left hemiplegic cerebral palsy and epilepsy and strabisumus. Moreover, in light of the finding of eligibility for regional center services and DHCS’s letter dated July 11, 2014, wherein they will not oppose the establishment of the trust at this time, the Court finds that the three criteria of 3604(b) have been met.

The special needs trust also complies with the applicable California Rules of Court. Specifically, the special needs trust complies with CRC, Rule 7.903(c) as follows:

a) the special needs trust does not contain a “No Contest” provision;
b) the special needs trust prohibits modification or revocation without court approval;
c) the special needs trust clearly identifies Ana Santos as trustee and any other person with authority to direct the trustee to make disbursements;
d) the special needs trust prohibits investments by the trustee other than those permitted under Probate Code section 2574;
e) the special needs trust requires the trustee to post a bond in an amount required under Probate Code sections 2320 2335;
f) the special needs trust requires the trustee to file accounts and reports for court approval in the manner and frequency required by Probate Code sections 1060 – 1064 and 2620 2628;
g) the special needs trust requires court approval of changes in trustees and a court order appointing any successor trustee; and
h) the special needs trust requires compensation of the trustee or the attorney for the trustee, to be in just and reasonable amounts that must be fixed and allowed by the court.

CONCLUSION

While the Court is finding that the Special Needs Trust complies with the Probate Code and California Rules of Court, Petitioner needs to make the following modifications to the Proposed Order prior to approval of the trust by the Court:

1) Incorporation of Text of Special Needs Trust, as amended, into Proposed Order — The Proposed Order does not include the actual text of the Special Needs Trust incorporated into the text of the Order (i.e., not attached) and does not include the changes to the trust as set forth in the 1st supplement filed 7/11/2014 – A new proposed order should be submitted that includes the text of the special needs trust in the order itself, instead of attaching it as an exhibit to the order. Exhibits or other matter appearing after the judicial officer’s signature do not comply with Local Rule 4.29(e). Also, the new proposed order should include the changes set forth in the First Supplement filed on July 11, 2014.

2) OSC Date Set for Proof of Filing of Separate Proceeding – No OSC Re Proof of Filing of Separate Special Needs Trust proceeding has been set. Counsel should file a “Notice of Commencement of Proceedings for a Court Supervised Trust (No Filing Fee Due)” (Form PRO 044). Counsel should attach to the form: a) a conformed copy of the order approving the establishment of the Trust; and c) a copy of the proof of bond of $1,015,629.23.

3) Proof of filing of the bond – the Special Needs Trust cannot be approved by the Court until Petitioner files proof of the filing of a bond in the amount of $1,015,629.23.

4) Non-appearance status hearing — the Court will set a non-appearance status hearing six months from the date the order is issued in order to determine whether a trust proceeding has been established in the probate court (under a separate case number). The date should be included in the order establishing the special needs trust.

Upon submission of an amended Proposed Order that complies with this Order, the Court will approve the Special Needs Trust and the Minors’ Compromise.
Petitioner Torres is ordered to give notice of this Order.

DATED: August 12, 2014
_________________________
Hon. Gail Ruderman Feuer
Judge, Los Angeles Superior Court