Cecilia Garcia Diaz et al vs Derek Charles Marchi et al

Case Number

18CV04601

Case Type

Hearing Date / Time

Fri, 10/06/2023 - 10:00

Nature of Proceedings

(2) Minor's Compromise

Tentative Ruling

For the reasons set forth herein:

The court is inclined to approve the compromises of Bella Rubio’s and Aaliyah Rubio’s claims against defendants. Joel Rubio, as guardian ad litem, Bella Rubio, Aaliyah Rubio, and plaintiffs’ counsel are ordered to appear at the hearing of this matter, either remotely or in person, to discuss whether the settlement balances would most benefit Bella and Aaliyah by being placed in a blocked account or in a structured settlement.

Background:

On September 18, 2018, plaintiffs Cecilia Garcia Diaz (Diaz), Joel G. Rubio (Rubio), individually and as guardian ad litem for Bella Rubio (Bella), a minor, and Aaliyah Rubio (Aaliyah), a minor, filed their complaint against defendants Derek Charles Marchi, State of California, California Department of General Services, and California Department of Food and Agriculture.

As alleged in the complaint: On October 12, 2017, in the intersection of De La Vina Street and West Junipero Street, Santa Barbara, Marchi was the driver of a 2017 Nissan Frontier, while in the employ of the other defendants acting within the course and scope of his employment, when he negligently caused a collision with plaintiffs Diaz, Bella, and Aaliyah. All three suffered injuries and set forth causes of action for negligence and violation of Vehicle Code section 17150. Rubio asserts a cause of action for loss of consortium.

On September 20, 2018, Rubio was appointed Guardian Ad Litem for Bella and Aaliyah pursuant to Code of Civil Procedure section 372, subdivision (a)(1).

On November 30, 2018, defendants filed an answer to the complaint setting forth a general denial and 21 affirmative defenses.

Plaintiffs dismissed Rubio, in his individual capacity, with prejudice, on December 8, 2022.

On May 23, 2023, plaintiffs filed a notice of settlement of entire case.

On August 2, 2023, plaintiffs filed the present petitions for approval of compromise of Bella’s and Aaliyah’s claims. The petitions were properly served on defendants.

The petitions are unopposed.

Analysis:

“The requirements that a guardian ad litem be appointed and that the proposed compromise of a minor’s claim be approved by the trial court exist to protect the best interests of the minor.” (Pearson v. Superior Court (2012) 202 Cal.App.4^th 1333, 1338.)

“While the guardian ad litem has the power to assent to procedural steps that will facilitate a determination of the ward’s case [citation], the guardian ad litem’s authority is that of “ ‘ “an agent with limited powers.” ’ [Citation.]” [Citation.] For example, when a guardian ad litem believes that settling a case is in the ward’s best interests, that decision requires court approval. (Code Civ. Proc., 372.) The court has a duty to ensure that the ward’s rights are protected by the guardian ad litem.” (McClintock v. West (2013) 219 Cal.App.4^th 540, 549.)

“A petition for court approval of a compromise of, or a covenant not to sue or enforce judgment on, a minor's disputed claim; a compromise or settlement of a pending action or proceeding to which a minor or person with a disability is a party; or the disposition of the proceeds of a judgment for a minor or person with a disability under Probate Code sections 3500 and 3600-3613 or Code of Civil Procedure section 372 must be verified by the petitioner and must contain a full disclosure of all information that has any bearing on the reasonableness of the compromise, covenant, settlement, or disposition. Except as provided in 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).” (Cal. Rules of Court, rule 7.950.)

“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. Rules of Court, rule 7.951.)

Plaintiffs have submitted to following information, on the required judicial council forms MC-350, signed by Rubio under penalty of perjury:

Bella is 13 years old with a date of birth of May 2, 2010. Aaliyah is 15 years old with a date of birth of June 18, 2008. (Petitions, ¶ 2.)

On October 12, 2017, at 2:45 p.m., at the De La Vina Street and Junipero Street intersection, “Diaz was driving southbound in the #1 lane on De La Vina Street. Defendant Marchi was also driving southbound on De La Vina Street but in lane #2. As the two vehicles approached the intersection, on Junipero Street, Defendant Marchi, made a dangerous, last minute, left-hand turn from the right most lane. Defendant Marchi did not see Ms. Diaz and drove his vehicle directly in front of her. With no time to stop, Ms. Diaz collided into the side of his vehicle. Paramedics arrived at the scene after the collision and transported all three Plaintiffs by ambulance to Santa Barbara Cottage Hospital.” (Petitions, ¶¶ 4, 5.)

“Upon impact of the accident, Bella hit her head on the front passenger seat and suffered from neck pain, back pain, headaches and severe emotional distress. In addition, she had a large frontal contusion and tenderness along the cervical spine and was diagnosed with PTSD and post concussive migraines.” (Bella Petition, ¶ 6.)

“Bella was evaluated by paramedics at the scene and then transported to Santa Barbara Cottage Health. She attended several therapy sessions that included play therapy, art therapy and concentration focus exercises to alleviate stress and anxiety. In addition, she attended chiropractic therapy sessions and multiple assessments and consultations for her headache and anxiety diagnosis.” (Bella Petition, ¶ 7.) Copies of Bella’s relevant medical records are attached to the petition.

“Upon impact of the accident, Aaliyah’s head and chest slammed into the passenger side dashboard, and she immediately felt a sharp pain in her left ankle. She was diagnosed with a left ankle injury, as well as PTSD and anxiety. In addition, she experienced constant headaches, trouble sleeping, and emotional sensitivity.” (Aaliyah Petition, ¶ 6.)

“Aaliyah was evaluated by paramedics at the scene and then transported to Santa Barbara Cottage Health. She attended several solo therapy sessions, as well as sessions with her sister, that included art therapy and play therapy to alleviate stress and anxiety. In addition, she underwent a psychiatric evaluation and multiple chiropractic therapy sessions, which included soft tissue manipulation of her left ankle and manual therapy.” (Aaliyah Petition, ¶ 7.) Copies of Aaliyah’s relevant medical records are attached to the petition.

Both Bella and Aaliyah have recovered completely from the effects of their injuries and there are no permanent injuries. (Petitions, ¶ 8.)

Diaz, who is to receive $2,350,000.00, suffered “several injuries including rotator cuff tear, SLAP tear, right shoulder subacromial impingement, and right shoulder biceps tendinitis.” (Petition, Attachment 11b(6).)

The terms of the settlement are that defendants will pay $75,000.00 to Bella, $75,000.00 to Aaliyah, and $2,350,000.00 to Diaz, for a total of $2,500,000.00. (Petitions, ¶¶ 10, 11.)

Bella’s medical expenses before any reductions total $9,801.01. Of that amount, total medical expenses paid total $2,142.01, reductions total $5,546.28, and medical expenses to be paid from settlement proceeds totals $2,370.05. (Bella Petition, ¶ 12, subd. (a).)

Aaliyah’s medical expenses before any reductions total $5,739.30. Of that amount, total medical expenses paid total $1,352.53, reductions total $1,907.77, and medical expenses to be paid from settlement proceeds totals $2,825.70. (Aaliyah Petition, ¶ 12, subd. (a).)

Both Bella’s and Aaliyah’s medical providers are identified along with their addresses, amounts charged, amounts paid, reductions and  amounts to be paid from proceeds of the settlement. (Petitions, ¶ 12, subd. (b)(5) & attachment 12b(5).)

Plaintiffs’ attorneys request that the court approve $18,750.00 from Bella’s settlement as attorney fees and $18,750.00 from Aaliyah’s settlement as attorney fees. (Petitions, ¶ 13, subd. (a).) Plaintiffs’ attorneys claim reasonably incurred costs advanced on Bella’s behalf in the amount of $5,807.74 and reasonably incurred costs advanced on Aaliyah’s behalf in the amount of $4,807.34. (Petitions, ¶ 13, subd. (b).)

The net balance of proceeds for Bella totals $48,072.21 and the net balance of proceeds for Aaliyah totals $48,616.96. (Petitions, ¶ 15.)

Plaintiffs’ attorneys provide all the information required by California Rules of Court, rule 7.951. (Petitions, ¶ 17.)

Bella and Aaliyah, through their guardian ad litem Rubio, request that the balance of their settlements, after the above disbursements, be deposited in insured accounts with Chase Bank located at 5787 Calle Real, Goleta, CA 93317. (Petitions, ¶ 18, subd. (b) & Proposed Order, ¶ 9.)

The court has reviewed the petitions, along with the attachments, and has considered all relevant factors. The settlement amounts appear to be reasonable and in the best interests of Bella and Aaliyah. However, the court is concerned that depositing their settlement funds into a blocked account, as opposed to a structured settlement is not in their best interest. As stated above, Bella is 13 years old, and Aaliyah is 15 years old. The amount they are to receive is not insignificant and the fixed stream of income created by a structured settlement, as well as the tax benefits, would likely be more beneficial, in the long run, than for either of them to receive a large amount of money all at once when they turn 18 years old.

“The person petitioning for approval of the compromise of the claim on behalf of the minor or person with a disability and the minor or person with a disability must attend the hearing on the petition unless the court for good cause dispenses with their personal appearance.” (Cal. Rules of Court, rule 7.952, subd. (a).)  Rubio, Bella, and Aaliyah will be ordered to appear at the hearing either remotely or in person. Plaintiffs’ counsel should be prepared to discuss whether the settlement balances would most benefit Bella and Aaliyah by being placed in a blocked account or in a structured settlement.