Ruling
ANNIE CAROLINE LORD, ET AL. VS JUDY WIZEL AS TRUSTEE OF THE JUDY WIZEL LIVING TRUST DATED FEBRUARY 13, 2008, ET AL.
Jul 17, 2024 |
21STCV41285
Case Number:
21STCV41285
Hearing Date:
July 17, 2024
Dept:
19
After consideration of the briefing filed, the unopposed
Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor, filed by Plaintiff
Annie Caroline Lord
as parent and guardian ad litem for minor Plaintiff Aiden Victor Lord, is GRANTED.
The Court signs the [Proposed] Order Approving Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person with a Disability filed on June 13, 2024.
Counsel for Plaintiffs
to give notice.
STATEMENT OF THE CASE
This is residential habitability action. In the Second Amended Complaint (SAC), Plaintiffs Annie Caroline Lord (Annie Lord) and Aiden Victor Lord (Aiden Lord) (collectively, Plaintiffs) bring suit against Defendants Judy Wizel, individually and as Trustee of the JUDY WIZEL LIVING TRUST Dated February 13, 2008; Freya Wizel Muhlstein, individually and as Trustee of the Freya Wizel Muhlstein Living Trust; and Klara Wizel, as Trustee of the E K W Revocable Trust No. 1 Survivors Trust created under the E K W Revocable Trust No. 1 (collectively, Defendants) alleging the following causes of action:
1.
Breach Of Implied Warranty Of Habitability;
2.
Tortious Breach Of Implied Warranty Of Habitability;
3.
Negligence;
4.
Intentional Infliction Of Emotional Distress;
5.
Private Nuisance;
6.
Constructive Eviction; and
7.
Violation Of Residential Lead-Based Paint Hazard Reduction Act Of 1992 (42 USCA 4852d).
On May 21, 2024, Plaintiffs filed a Notice of Settlement of Entire Case.
Plaintiff Annie Lord (
hereafter, Petitioner) filed the instant Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor (the Petition) for minor Plaintiff Aiden Lord (hereafter, Claimant).
On June 12, 2024, Petitioner was appointed guardian ad litem of Claimant.
PETITION TO APPROVE MINORS COMPROMISE
A.
Legal Standards
A petition for approval of the compromise of a minors claim is governed by Code of Civil Procedure section 372, California Rules of Court, rules 7.950 through 7.955, and Probate Code sections 3500 and 3600 through 3613. The petition 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. (Cal. R. Ct., 7.950.) Except for petitions for expedited approval of a compromise as provided in California Rules of Court, 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). (
Id
.)
California Rules of Court, rule 7.951 provides that:
If the petitioner has been represented or assisted by an attorney in preparing the petition for approval of the compromise of the claim or in any other respect with regard to the claim, the petition must disclose the following information:
(1)
The name, state bar number, law firm, if any, and business address of the attorney;
(2)
Whether the attorney became involved with the petition, directly or indirectly, at the instance of any party against whom the claim is asserted or of any party's insurance carrier;
(3)
Whether the attorney represents or is employed by any other party or any insurance carrier involved in the matter;
(4)
Whether the attorney has received any attorney's fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the petition, and, if so, the amounts and the identity of the person who paid the fees or other compensation;
(5)
If the attorney has not received any attorney's fees or other compensation for services provided in connection with the claim giving rise to the petition or with the preparation of the petition, whether the attorney expects to receive any fees or other compensation for these services, and, if so, the amounts and the identity of the person who is expected to pay the fees or other compensation; and
(6)
The terms of any agreement between the petitioner and the attorney.
(Cal. R. Ct., 7.951.)
Further, California Rules of Court, rule 7.953, provides as follows:
(a) Acknowledgment of receipt by financial institution. In any case in which the court orders that funds to be received by a minor or a person with a disability must be deposited in a financial institution and not disbursed 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 the deposit of funds.
(b) Order permitting the withdrawal of funds by a former minor. If, in the order approving the compromise of a minor's claim, there is a finding that the minor will attain the age of majority on a definite date, the order for deposit may require that the depository permit the withdrawal of funds by the former minor after that date, without further order of the court.
(Cal. R. Ct., 7.953(a))
California Rules of Court, rule 7.955, subdivision (a) requires the court to 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, unless the Court approved the fee arrangement in advance. (Cal. R. Ct., 7.955(a)(1).) The court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor or person with a disability and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made, except where the attorney and the representative of the minor or person with a disability contemplated that the attorney's fee would be affected by later events. (Cal. R. Ct., 7.955(a)(2).) In a petition requesting court approval and allowance of attorney's fees, California Rules of Court, rule 7.955, subdivision (c) requires the attorney to submit a declaration that addresses the following nonexclusive factors applicable to the matter before the court that the court may consider:
(1)
The fact that a minor or person with a disability is involved and the circumstances of that minor or person with a disability.
(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 required to perform the legal services 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 or person with a disability.
(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 agreements applicable to particular cases or claims.
(Cal. R. Ct., 7.955(b), (c).)
B.
Analysis
Here, the Petition is brought pursuant to California Rules of Court, rule 7.950.
The Petition is verified and submitted on required Judicial Council form MC-350.
The Petition seeks approval of an offer by Defendants to settle Claimants claim for $125,000.00 as part of a $250,000.00 settlement to settle the entire action. (Petition, §§ 10-11, Attachment 11b(5).) The Petition seeks approval for $43,750.00, or thirty-five percent (35%) of the $125,000.00 settlement amount to Claimant, and for $12,920.80 in litigation expenses, for a net settlement amount to Claimant of $68,329.20. (
Id
. at §§ 13-15, Attachment 11b(5).)
The Petition includes all the required disclosures of attorneys interest set forth in California Rules of Court, rule 7.951. (
Id
. at § 17; see Attachment 17a (citing Grant K. Riley Decl., Ex. B [Retainer Agreement].) As required by California Rules of Court, rule 7.955, the Petition includes a declaration from Plaintiffs counsel, Grant K. Riley, that addresses the factors applicable in determining the reasonableness of the requested attorneys fees and provides a copy of the written attorney fee agreement. (See
id
. at § 17, Attachment 17a.) The Court finds that the requested attorneys fees are reasonable. The retainer agreement provided for payment of attorneys fees equal to thirty-five percent (35%) of the recovery payable to a minor child.
(See Attachment 17a; Riley Decl. at ¶ 7, Ex. B at Ex. A, p. 2.) The Petition indicates that Plaintiffs counsel is representing or employed by other parties and specifies the parties in Attachment 17e. (
Id
. at § 17e, Attachment 17e.)
The Petition indicates that Claimant did not sustain any injuries as a result of the incident/accident and did not receive any medical care. (
Id
. at §§ 4-8.)
The Court finds that Petition contains a full disclosure of all information that has any bearing upon the reasonableness of the settlement amount to Claimant and that the settlement amount to Claimant is reasonable given Claimants lack of injuries and lack of medical expenses.
The Petition requests that the net proceeds be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the Court, (
id
. at § 18(b)), and specifies the terms and conditions of the annuity in Attachment 18b(3). (
Id
. at Attachment 18b(3).)
For the foregoing reasons, the Petition is GRANTED.
Ruling
ALVARO CASTELLON, AN INDIVIDUAL VS ROY ESQUEDA, AN INDIVIDUAL, ET AL.
Jul 18, 2024 |
23CHCV02412
Case Number:
23CHCV02412
Hearing Date:
July 18, 2024
Dept:
F47 Dept. F47
Date: 7/18/24
Case #23CHCV02412
4 MOTIONS TO SET ASIDE DEFAULT
Motions filed on 5/23/24.
MOVING PARTY # 1: Defendant Joy Arredondo
MOVING PARTY # 2: Defendant Jennifer Helliwell
MOVING PARTY # 3: Defendant Roy Esqueda
MOVING PARTY # 4: Defendant Amanda Esqueda
RESPONDING PARTY: Plaintiff Alvaro Castellon
NOTICE: ok
RELIEF REQUESTED
:
(1)
An order setting aside the default entered against Defendant Joy Arrendondo on 5/1/24.
(2) An order setting aside the default entered against Defendant Jennifer Helliwell on 5/1/24.
(3) An order setting aside the default entered against Defendant Roy Esqueda on 5/1/24.
(4) An order setting aside the default entered against Defendant Amanda Esqueda on 5/1/24.
RULING
: The motions are granted.
SUMMARY OF FACTS & PROCEDURAL HISTORY
On 8/10/23, Plaintiff Alvaro Castellon (Plaintiff) filed this action against Defendants Roy Esqueda; Estate of Brenda Marie Perez; Amanda Esqueda; Jennifer Helliwell, Joy Arredondo and Does 1-50.
On 9/14/23, Defendants Roy Esqueda, Amanda Esqueda, Jennifer Helliwell and Joy Arredondo (collectively, Defendants) filed an answer to the complaint.
After taking the depositions of Defendants Jennifer Helliwell and Roy Esqueda, pursuant to Plaintiffs request, Defendants stipulated to Plaintiff filing a First Amended Complaint which added causes of action for conversion and fraud/concealment and included a claim for punitive damages.
(
See
3/15/24 Stipulation and Order).
Pursuant to the stipulation, Defendants had 30 days to respond to the First Amended Complaint after it was filed.
Id
.
On 3/20/24, Plaintiff filed and served the First Amended Complaint.
On 5/1/24, pursuant to Plaintiffs requests, separate defaults were entered against each of the Defendants.
When Defendants counsel became aware of the defaults, a request was made to Plaintiff to stipulate to have the defaults set aside because they were the result of a calendaring error on the part of Defendants counsel.
(
See
Tran Decls.).
Plaintiffs counsel failed to respond to the request.
(Tran Decls.).
Therefore, on 5/23/24, Defendants each filed a motion to have the default entered against them set aside.
On 5/29/24, at the Case Management Conference, the Court advanced the hearings on the motions to 7/18/24 and the parties waived notice.
(
See
5/29/24 Minute Order).
Plaintiff has not opposed or otherwise responded to the motions.
ANALYSIS
Due to the attorney declarations of fault that accompany each motion and the fact that the motions were filed and served well within 6 months of the entry of default, relief is mandatory.
See
CCP 473(b); (Tran Decls.).
CONCLUSION
The motions are granted.
Defendants Roy Esqueda, Amanda Esqueda and Joy Arredondo are ordered to separately file their Answer to the First Amended Complaint which is attached to each of their motions as Exhibit A.
Defendant Jennifer Helliwell is ordered to reserve a hearing date for the demurrer and motion to strike attached to her motion as Exhibits A and B and file and serve such pleadings which indicate the reserved hearing date.
