India Kenan et al vs Target Corporation et al

Case Number

22CV01182

Case Type

Hearing Date / Time

Fri, 02/27/2026 - 10:00

Nature of Proceedings

Minor's Compromise

Tentative Ruling

For the reasons stated herein, the petition of plaintiff Benjamin Kenan is for approval of compromise of claim or action or disposition of proceeds of judgment for minor or person with a disability as to plaintiff India Kenan, by their guardian ad litem, is granted, in part and in accordance with this ruling. No appearances are necessary. Petitioner shall submit, for the court’s signature, a corrected proposed order that conforms to the court’s ruling herein.

Background:

This case is consolidated with case number 22CV01230 entitled Jameson Moore, et al. v. Target Corporation, et al. (the Moore Action) for all discovery proceedings. (Mar. 22, 2024, Minute Order.)

Court records reflect that on June 25, 2024, with leave of court pursuant to a stipulation by the parties, plaintiffs Benjamin Kenan (Benjamin) and India Kenan (India), by and through Benjamin who is India’s guardian ad litem (collectively, the Kenan Plaintiffs) filed in this action (the Kenan Action), a third amended complaint (the Kenan TAC) against defendants Target Corporation (Target), Mitsubishi Electric, US, Inc. (Mitsubishi), and Kone, Inc. (Kone), alleging four causes of action: (1) negligence; (2) strict products liability-design defect (against Mitsubishi and Kone only); (3) strict product liability-failure to warn (against Mitsubishi and Kone only); and (4) breach of implied warranty of merchantability. As alleged in the operative Kenan TAC:

On June 21, 2021, India, who was four years old at the time, was descending an escalator with her father, Benjamin, in a Target store located at 3891 State Street in Santa Barbara, California (the store). (Kenan TAC, ¶¶ 6, 8.) While India and Benjamin were descending the escalator, the small finger of India’s right hand was amputated by a purportedly defective escalator. (Ibid.) Benjamin witnessed the amputation. (Id. at ¶ 7.)

Target retained Mitsubishi to maintain the allegedly defective escalator. (Kenan TAC, ¶ 9.) Both Target and Mitsubishi were responsible for the safe operation, maintenance, and repair of the escalator. (Ibid.) There was an opening in the skirt or apron of the escalator large enough for human fingers and other body parts to get caught and amputated. (Id. at ¶ 14.) Target, Mitsubishi, and Kone (collectively, Defendants) had actual notice that the escalator was defective and was exposing customers and their children to amputations and other injuries. (Id. at ¶¶ 10, 15.) Though the escalator could be repaired in less than one day, Target and Mitsubishi failed to shut down, repair, modify, or fix the escalator, or warn of its hidden dangers. (Id. at ¶¶ 11-13 & 17.) Target and Mitsubishi also failed to implement safety measures. (Id. at ¶ 13.)

On July 24, 2024, Target and Mitsubishi filed an answer to the Kenan TAC, generally denying its allegations and asserting twenty-two affirmative defenses, and Mitsubishi separately filed an answer to the Kenan TAC, generally denying its allegations and asserting affirmative defenses. In addition, and on that same date, Kone filed its answer to the Kenan TAC, generally denying its allegations and asserting thirty affirmative defenses.

A notice of conditional settlement was filed in this action on September 23, 2025.

On November 25, 2025, petitioner Benjamin filed an unopposed petition for court approval of a compromise or settlement of India’s disputed claim. On January 14, 2026, the court entered a minute order advancing the hearing on that petition to January 30.

The petition reflects that petitioner Benjamin (at times, Petitioner) is the parent of India, a minor who is presently 8 years of age. (Pet., ¶¶ 1 & 2(b).) The petition asserts that the claim of India that is the subject of this action will be compromised or settled without a trial. (Pet., ¶ 3(b).)

The petition describes the incident or accident that occurred on June 21, 2021, at the store. At the time of the incident or accident, India was descending on an escalator located in the store with her Benjamin. (Pet., ¶ 5.) As they were descending, India put her right hand on the trim piece at the low deck balustrade, when part of her right little finger was amputated by a broken trim piece. (Ibid.) As a result of that incident or accident, India sustained a right hand small finger partial amputation, which caused India to suffer physical and emotional harm. (Pet., ¶ 6.)

India received emergency medical care from Cottage Hospital. (Pet., ¶ 7.) An evaluation was done by Dr. Brent Moelleken (Moelleken), a plastic surgeon, and a neuropsychiatric evaluation was performed by Dr. Marrissa Romano Perry (Perry). (Ibid.) Inda sought and continues to have therapy with Staphanie Kinlloch, M.A., M.F.T. (Kinlloch). (Ibid.)

The injuries sustained by India and described in the petition include that India’s right fingertip has no glabrous coverage of the bone at distal interphalangeal and no glabrous finger pad. (Pet., ¶ 8(c).) India has not recovered completely from the effects of the injuries described in the petition, and continues to suffer from post-traumatic stress disorder and anxiety. (Ibid.)

Attached to the petition is a Forensic Pediatric Neuropsychology Report ostensibly authored by Perry, and which is dated July 23, 2022 (the Perry Report). (Pet., Attachment 8(c) at pdf pp. 12-25.) Also attached to the petition is a Medical Evaluation ostensibly authored by Moelleken and dated September 9, 2022 (the Moelleken Evaluation), and what appear to be notes from India’s visit with Moelleken on September 22, 2023 (the Moelleken Notes). (Pet., Attachment 8(c) at pdf pp. 26-29.) Photos depicting India’s partially amputated right little finger are also attached. (Pet., Attachment 8(c) at pdf pp. 30-33.)

Information appearing in the Perry Report shows that, when India was 5 years of age, her parents brought her to Perry for a comprehensive evaluation “to better understand India’s cognitive strengths and weaknesses and her overall social-emotional and adaptive functioning.” (Pet., Attachment 8(c) at pdf p. 12.) India’s parents expressed to Perry, concerns regarding India’s emotional lability and worsening anxiety symptoms following the accident that resulted in India’s finger amputation. (Ibid.)

During Perry’s evaluation of India, Perry utilized or administered certain assessment measures, which included: interviews with India and her mother; clinical observations through a virtual platform; a “Kaufman Brief Intelligence Test- Second Edition” (the KBIT-2); a “Test of Auditory Perception – 3” (the TAPS-3); a “Test of Visual Perceptual Skills- Third Edition” (the TVPS-3); “Behavior Rating Scales for Pre Schoolers” (the BASC); “Vineland Adaptive Behavior Scales” (the VABS); and a “Child Behavior Checklist for Ages 4-18” (the CBCL/4-18).) (Pet., Attachment 8(c) at pdf pp. 13-14.)

Perry administered the KBIT-2 to India on May 7, 2022, for the purpose of obtaining an estimate of India’s cognitive functioning. (Pet., Attachment 8(c) at pdf p. 15.) The Perry Report states that India’s scores on the verbal composite fell within the average range; that India demonstrated average verbal reasoning skills; and that India performed within the average range on the nonverbal composite, scoring in the twenty-fifth percentile. (Ibid.)

The Perry Report further states that India’s overall intellectual performance fell within the average range, and that India’s verbal and nonverbal abilities were equally developed. (Pet., Attachment 8(c) at pdf p. 15.) The Perry Report also notes that India’s fluid reasoning measured at age expectancy, and that India demonstrated intact perceptual reasoning skills and quantitative reasoning ability, achieving a score also falling within average range. (Ibid.)

As to Perry’s assessment of India’s visual motor integration, the Perry Report states that India’s skills in this regard measured above average age expectancy, and within the average range of functioning, such that producing neat handwriting under timed conditions will not be more effortful for India. (Pet., Attachment 8(c) at pdf p. 15.)

Results of the TAPS-3 administered by Perry to India, which assesses various areas of auditory-perceptual skills, suggest that India’s auditory memory also falls within average range. (Pet., Attachment 8(c) at pdf p. 16.) The Perry Report does not note any weaknesses in India’s auditory memory or working verbal memory, which also fall within the average range. (Ibid.) India’s performance indicated to Perry that India did the same or better than 49 percent of her same age peers, including in regard to tasks which required India to recall and auditory sequence of numbers and words in the given order, and a spoken sentence. (Ibid.)

According to the Perry Report, India’s performance on the TVPS-3, which measures various aspects of visual-perceptual strengths and weaknesses, indicates that India’s visual skills are in the average range with India performing at a level equal to or above that demonstrated by 50 percent of her same-aged peers. (Pet., Attachment 8(c) at pdf pp. 16-17.) India’s score in all areas of visual processing, including immediate and long-term recognition of visual symbols, also fell within average range. (Pet., Attachment 8(c) at pdf p. 17.)

The Perry Report explains that the CBCL/4-18 is a standardized form completed by parents to describe their children’s behavioral and emotional problems. (Pet., Attachment 8(c) at pdf p. 17.) India’s ratings on that form indicated average concerns with withdrawal, somatic complaints, anxiety, and depression, with increased levels of inattention falling within at-risk ranges and suggesting an area of follow up if necessary. (Pet., Attachment 8(c) at pdf p. 18.)

Information appearing in the Perry Report also shows that the BASC, which is designed to assess and identify social-emotional and behavioral concerns, resulted in elevations on the depression, anxiety, and “[s]omatization” scales, with India’s scores on these scales also falling within the “At-Risk” classification. (Pet., Attachment 8(c) at pdf pp. 18-19 & 21.) The Perry Report states that thorough clinical interviewing and history taking to clarify the relationship between India’s somatic symptoms and other areas may be a useful clinical goal. (Pet., Attachment 8(c) at pdf p. 19.)

India’s scores on the VABS, which is a standardized assessment tool that utilizes semi-structured interviews to measure adaptive behavior, intellectual and developmental disabilities, autism, and developmental delays, showed that India’s overall level of adaptive functioning is below the normative mean; that communication is a weakness for India; that and that motor skills are a relative strength for India. (Pet., Attachment 8(c) at pdf pp. 22-23.)

The Perry Report includes a section labeled “DSM-5 Diagnostic Impressions” in which Perry reports that India meets the symptoms for post-traumatic stress disorder or “PTSD”. (Pet., Attachment 8(c) at pdf p. 24.) The Perry Report indicates that India would benefit from various modes of therapy to assist India with adverse impacts from her trauma, among other things, and from reading books about, and taking with other children with, an amputee. (Pet., Attachment 8(c) at pdf pp. 24-25.)

The Moelleken Evaluation shows that India presented on September 9, 2022, for a severed right pinkie finger sustained on June 21, 2021, when India’s hand went into a broken part of an escalator. (Pet., Attachment 8(c) at pdf p. 26.) The Moelleken Evaluation notes that India was transported to the emergency room where her right pinkie was sutured. (Ibid.) India was discharged the same day with medication, and her right hand was bandaged for six weeks with the tip sensitive and painful to touch. (Ibid.) The Moelleken Evaluation states that the tip of India’s pinkie is numb, and that India was anxious after the accident and concerned about appearance. (Ibid.)

The Moelleken Evaluation notes that India is right hand dominant; has no social, past surgical or medical, or family medical history, and does not take medications. (Pet., Attachment 8(c) at pdf pp. 26-27.) A physical examination by Moelleken revealed that the right fingertip amputation has no glabrous coverage of the bone or finger pad and has a terminal extension lag of 15 degrees, and that the nail bed is absent. (Pet., Attachment 8(c) at pdf p. 27.)

The Moelleken Evaluation states that Moelleken recommends scar revision with “VY” advancement and a fascial fat graft. (Pet., Attachment 8(c) at pdf p. 27.) Moelleken anticipates a 40 percent improvement of the functionality of India’s right small finger, with restoration of some glabrous coverage and some finger pad. (Ibid.) Further, the Moelleken Notes show that the bony spur is tender, and that India’s mother wishes to wait on surgery. (Pet., Attachment 8(c) at pdf p. 29.)

Petitioner states that they have made a careful and diligent inquiry and investigation into the facts and circumstances of the incident in which India was injured; the responsibility for the incident or accident; and the nature, extent, and seriousness of India’s injuries. (Pet., ¶ 9.) Petitioner understands that if the compromise proposed in the petition is approved by the court and consummated, India will never be able to recover any more compensation from the settling defendants named in the petition and below, even if her injuries turn out to be more serious than they now appear. (Pet., ¶ 9.)

To settle India’s claim in this action, Defendants have offered to pay to India the total amount of $1,300,000, with Kone offering the amount of $100,000, and Target and Mitsubishi offering the amount of $1,200,000. (Pet., ¶ 10(a)-(b).) The terms of the settlement include the execution of a release, payment, and dismissal upon the court’s approval of the petition. (Pet., ¶ 10(c).)

Though Petitioner, who is also a plaintiff in this action, will receive money under the proposed settlement with India, Petitioner does not have a claim against the recovery of India. (Pet., ¶ 11(b)(2)-(3).) To settle claims arising out of the same incident or accident that resulted in India’s injury, Defendants have offered to pay to Petitioner the amount of $500,000. (Pet., ¶ 11(b)(5).) Petitioner explains that he is the father of India who witnessed India’s finger get caught and amputated. (Pet., Attachment 11b(3).) Petitioner further states that his claim has no effect on India’s compromise because Petitioner’s claim for injuries has separately settled for the amount described above. (Ibid.)

Attached to the petition is a declaration by the India and Petitioner’s counsel, Stephen McElroy (attorney McElroy), who states that, at the time of India’s injury, India was approximately 4 years old and accompanied by Petitioner. (Pet., Attachment 11b(6) [McElroy Dec.], ¶ 11.) Petitioner, who was holding India in his arms, witnessed India being injured on the escalator and has a claim for negligent infliction of emotional distress. (Ibid.)

Attorney McElroy further states that the parties accepted a mediator’s proposal of settlement in the amount of $1,800,000, several days after a mediation that occurred on July 21, 2025. (Pet., Attachment 11b(6) [McElroy Dec.], ¶ 10.) The mediator proposed that India should receive $1,300,000 of that settlement, and Petitioner, her father, should receive $500,000, which the Kenan Plaintiffs accepted. (Ibid.)

Item 12 of the Petition states that India’s medical expenses before any reductions total $ 20,023. (Pet., ¶ 12(a)(1).) The medical expenses paid, including by private insurance, Medi-Cal, or Medicare, total $3,113.68. (Pet., ¶ 12(a)(2).) Negotiated, contractual, or statutory reductions total $9,159.32. (Pet., ¶ 12(a)(3).) The medical expenses to be paid or reimbursed from the settlement proceeds total $7,750. (Pet., ¶ 12(a)(4).) Statutory or contractual liens total $12,550. (Pet., ¶ 12(a)(5).)

As to the paid medical expenses, Petitioner paid the amount of $450. (Pet., ¶ 12(b)(1).) Private health insurance or a self-funded plan paid medical expenses in the amount of $2,663.68, for which reimbursement is not requested by that plan. (Pet., ¶ 12(b)(2).)

The amount charged for the care and treatment furnished to India by Moelleken totals $1,750, and will be paid from the proceeds of the settlement. (Pet., ¶ 12(b)(5)(b)(i)(C).) The amount charged by Forensic Pediatric Neuropsychology for care and treatment furnished to India totals $10,800. (Pet., ¶ 12(b)(5)(b)(ii)(C).) The negotiated reduction in that charge totals $4,800. (Pet., ¶ 12(b)(5)(b)(ii)(E).) The amount to be paid to Forensic Pediatric Neuropsychology from the settlement proceeds totals $6,000. (Pet., ¶ 12(b)(5)(b)(ii)(F).)

Exhibit G to the petition includes an “Estimated Settlement Statement” (the Settlement Statement), which also indicates or suggests that care and treatment was furnished to India by Coastal CA Cosmetic Recon & Hand, Cottage Health, and Tosh D. Montee MA, and that these expenses were either paid by insurance or by Petitioner as noted above. (Pet., Exh. G.)

The attorney’s fees for which court approval is requested total $520,000. (Pet., ¶ 13(a).) The basis for this request is set forth in the McElroy declaration, and a declaration by Robert J. Stoll, Jr. (attorney Stoll), each of which are included as attachment 13(a) to the petition. (Ibid.)

Attorney McElroy explains that this litigation involves two related matters which have been litigated for the purposes of discovery throughout, and each of which arise from the partial amputation of a child’s finger which occurred in June 2021 and November 2021, as a result of the same condition on the same escalator in the store. (Pet., Attachment 13(a) [McElroy Dec.], ¶¶ 2-5.) Target owns the premises and the escalator at issue, and Mitsubishi had the maintenance and service contract for that escalator. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 7.) After extensive discovery and investigation, Kone, who is the manufacturer of the escalator installed at the subject premises, was brought into the case. (Ibid.) Attorney McElroy also submits with his declaration, screen captures of store video immediately preceding the injuries at issue, and the loose trim piece that caused the amputations. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 6 & Exhs. A-C.)

Attorney McElroy further states that plaintiffs in each case originally retained The Stoll Law Firm, who filed the original lawsuits, and that in November of 2022, The Stoll Law Firm associated McElroy Parris Trial Lawyers (MPTL), with attorney McElroy as lead counsel, and Trial Lawyers for Justice and lead counsel Nicholas Rowley. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 8.) The role of those two associated firms was to take over the litigation, with MPTL litigating the day-to-day aspects of the case and Trial Lawyers for Justice serving as lead trial counsel. (Ibid.)

Attorney McElroy contends that this litigation involved extensive pleadings and substantial discovery, and notes that multiple amended complaints and demurrers were filed throughout the litigation. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 9.) In addition, two motions for summary judgment, which are opposed, remain pending. (Ibid.) The Kenan Plaintiffs have also worked extensively with technical experts on liability issues which attorney McElroy describes as “complex”. (Ibid.)

Attorney McElroy further states that there have been two mediations in the case, the second of which resulted in the settlement that is the subject of the petition. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 9.) The cases were mediated on both occasions with mediator Janet Fields, the second of which focused on the potential for settling the Kenan Action in the manner described above. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 10.) Since reaching an agreement to settle the Kenan Action in July, McElroy has continued to work with the Kenan family with respect to the settlement funds. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 12.)

According to attorney McElroy, the payment of attorney’s fees will be made pursuant to a retainer agreement agreed to by Petitioner as the guardian ad litem for India, and which is consistent with Petitioner’s own retainer. (Pet., Attachment 13(a) [McElroy Dec.], ¶ 15.) Attorney McElroy contends that it is a conservative retainer given the amount of work, effort, and skill that went into the case and the substantial recovery for all plaintiffs, including India. (Ibid.)

Attorney Stoll states that they have been practicing law in California since 1970. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 3.) Attorney Stoll has known and worked with attorney McElroy for about 20 years including as co-counsel, and associated with attorney McElroy on many large and difficult cases. (Pet., Attachment 13(a) [Stoll Dec.], ¶  2.) Attorney Stoll explains that their firm handled the pre-litigation phase of this case and that MPTL took the lead role in the litigation. (Ibid.)

Since 1970, attorney Stoll has practiced continuously in the area of personal injury and related tort law, has done extensive defense work for about fifteen insurance companies, and has represented over 15,000 plaintiffs in personal injury, bad faith, medical negligence, product liability, business tort liability, airline liability, ship liability, train liability and about 200 wrongful death cases. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 4.) Attorney Stoll has obtained jury verdicts and awards in excess of one million dollars on at least thirty occasions, holds the Advocate Rank in ABOTA (for over 50 jury trials), and has tried almost one hundred civil jury trials, among other things. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 5.) Attorney Stoll is completing their fifty fifth year of personal injury trial practice throughout the United States. (Ibid.)

Benjamin contacted attorney Stoll’s office on August 3, and retained that firm on August 5, 2021. (Pet., Attachment 13(a) [Stoll Dec.], ¶¶ 18-19.) A standard form retainer agreement that attorney Stoll’s firm has been using for 55 years was executed by Benjamin on August 5, 2021, a copy of which is attached to the petition. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 8 & Attachment 17a) Attorney Stoll asserts that agreement provides for a 33 and one-third percent fee if the case is settled without litigation, and a 40 percent fee if the case is filed with the court and litigated. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 8.)

Thereafter, attorney Stoll’s firm hired an investigator, a photographer, and conducted a site inspection with many photographs taken of the accident site. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 20.) As part of discovery, thousands of documents were recovered which ranged from initial contracts between Target and Mitsubishi, safety manuals, diagrams, blueprints, and permits. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 26.) MPTL took and defended depositions, and the case was mediated twice resulting in a settlement at the conclusion of the second mediation session. (Ibid.)

According to attorney Stoll, the time expended by counsel included meetings and phone conferences; expert retention, meetings, and preparation; advancement of all costs; court filings; responding to and propounding written discovery (interrogatories, requests for admissions, requests for production of documents); and three years of correspondence. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 13.) Additional attorney services included investigation, obtaining medical records, review and summarization of related records, conferring with experts, and conferences with defense counsel. (Ibid.) Attorney Stoll asserts that the risks born by counsel include that Benjamin may have been found partially or completely at fault for causing the accident, and a prolonged and difficult litigation with a delay in payment of fees and reimbursement of costs of over 4 years. (Pet., Attachment 13(a) [Stoll Dec.], ¶¶ 15-16.)

The Settlement Statement described above reflects that 25 percent of the $520,000 in attorney’s fees requested in the petition, or the amount of $130,000, will be paid to MPTL; that Trial Lawyers for Justice will also receive 25 percent of those fees; and that the firm of Stoll Nussbaum & Polakov will receive 50 percent or the mount of $260,000. (Pet., Attachment G.)

Attached to the petition is an “Attorney-Client Contingency Fee Agreement” (the Fee Agreement), made on July 29, 2025, between MPTL and Benjamin, individually and as the guardian ad litem for India. (Pet., Attachment 17(a).) Benjamin ostensibly signed the Fee Agreement on that date. (Id. at pdf p. 38.) The Fee Agreement provides that “[i]f the matter is resolved, then the Attorneys’ fees will be 40 % of the gross recovery.” (Id. at pdf p. 39.)

Additional items of expense representing case costs advanced by MPTL in the amount of $43,639.25 were incurred and will be paid out of India’s share of the settlement proceeds. (Pet., ¶ 13(b) & Exh. G.) Attorney McElroy states that the costs of the Kenan Action are separate from the costs of the Moore Action, and that joint costs were equally divided between those two cases. (Pet., Attachment 13(a) [McElroy Dec.], ¶¶ 15.) Thereafter, the costs related to the Kenan Action were divided between Benjamin and India based upon a pro rata percentage of their recovery as to the overall settlement. (Ibid.)

Attorney Stoll states that their firm advanced $39,272.78 in costs, and that MPTL advanced additional costs of $20,150.79. (Pet., Attachment 13(a) [Stoll Dec.], ¶ 15.)

Petitioner has paid none of the fees or expenses listed in petition items 12 and 13 for which reimbursement is requested. (Pet., ¶ 14(a).)

The net balance of the proceeds for India (petition item no. 15) totals $728,610.75. In the Summary section (item no. 16), the petition lists gross settlement proceeds of $1,300,000, from which expenses totaling $571,389.25 will be deducted (consisting of medical expenses in the amount of $7,750, attorney’s fees in the amount of $520,000, and expenses other than medical in the amount of $43,639.25), for a balance of $728,610.75.

Petitioner has been represented or assisted by attorney McElroy in preparing the petition, and Petitioner and attorney McElroy have an agreement for services provided in connection with the claim giving rise to the petition, a copy of which is attached to the petition as further discussed above. (Pet., ¶¶ 17(a)(2) & (b).) Attorney McElroy has not received attorney’s fees or other compensation in addition to that requested in the petition, for services provided in connection with the claim. (Pet., ¶ 17(c).) Attorney McElroy did not become concerned with this matter at the instance of a party against whom the claim is asserted or a party’s insurance carrier; is not representing or employed by any other party or insurance company involved in this matter; and expects to receive attorney’s fees or other compensation in addition to that requested in the petition for services provided in connection with the claim giving rise to the petition. (Pet., ¶ 17(d)-(f).)

There is no guardianship or conservator of the estate of India. (Pet., ¶ 18(b).) Petitioner requests that the court order the balance of the proceeds of the settlement, in the amount of $728,610.75, to be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the court. (Pet., ¶ 18(b)(3).)

The petition states that the terms and conditions of the annuity are specified in attachment 18b(3). (Pet., ¶ 18(b)(3).) That attachment states that payment of the amount of $227,461.31 will be structured through the funding of an annuity from Independent Life Insurance Company (Independent Life), which is rated “A” by Egan-Jones Ratings Company, and partially reinsured by Hannover Life Reassurance Company of America, rated “A+, XV” by A.M. Best. (Pet., Attachment 18b(3) at pdf p. 45.) The periodic payments will be assigned to Independent Assignment Company, LLC (Independent Assignment), by way of a Qualified Assignment by the Qualified Settlement Fund, and will be guaranteed through the issuance of a Letter of Guarantee from Independent Life, assumed under the Qualified Assignment. (Ibid.) The future periodic payment amounts, which are guaranteed based upon a projected annuity purchase date of January 15, 2026, include the amount of $50,000 payable semi-annually to the India Kenan Settlement Trust (the Trust) for 4 years (or 8 guaranteed payments), beginning on July 1, 2036, with the last guaranteed payment to be made on January 1, 2040. (Ibid.)

Payment of the amount of $501,149.44 will be structured through the funding of an annuity from Independent Life and those payments will be assigned to Independent Assignment by way of an Assignment and Release Agreement. (Pet., Attachment 18b(3) at pdf p. 45.) The periodic payments will be made to the Trust and guaranteed through the issuance of a Letter of Guarantee from Independent Life, assumed under the Assignment and Release Agreement. (Pet., Attachment 18b(3) at pdf pp. 45-46.)

The petition also includes a declaration of Nicholas J. Coccimiglio (Coccimiglio), a structured-settlement specialist retained by Benjamin to advise on financial planning related to the settlement. (Pet., Exh. F [Coccimiglio Dec.], ¶ 1.) Coccimiglio states that the structured settlement has a total investment of $728,610.75 to fund the guaranteed and indexed payments to be made to the Trust as further described above. (Pet., Exh. F [Coccimiglio Dec.], ¶ 5.)

On January 30, 2026, the court entered a minute order (the Minute Order) adopting its tentative ruling on the petition as follows:

““A petition for court approval of a compromise or covenant not to sue under Code of Civil Procedure section 372 must comply with rules 7.950 or 7.950.5, 7.951, and 7.952.” (Cal. Rules of Court, rule 3.1384(a).) The petition “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 by an attorney in preparing the petition, the petition must disclose the information identified in California Rules of Court, rule 7.951(1) through (6). (Cal. Rules of Court, rule 7.951.) “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.) 

Relevant here, “[w]hen a minor ... is a party, that person shall appear either by a guardian or conservator of the estate or by a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case.” (Code Civ. Proc., § 372, subd. (a)(1).) “The purpose of [Code of Civil Procedure] section 372 is to protect the minor involved in litigation by adding an extra layer of scrutiny to the settlement of the minor’s claims. This statute is a ‘shield’ to protect the interests of a minor.” (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1339.) “A guardian ad litem appointed to represent a minor can, with the approval of the court in which the action is pending, compromise the minor’s claims.” (Barnes v. Western Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256.)

The petition states that “[a]n original or a photocopy of any doctor’s report containing a diagnosis of the claimant’s injuries or a prognosis for the claimant’s recovery, and a report of the claimant’s current condition, must be attached to this petition as Attachment 8. A new report is not necessary if a previous report accurately describes the claimant’s current condition.” (Pet., ¶ 8.)

The Moelleken Evaluation and Moelleken Notes appear sufficient to provide a diagnosis and description of the physical injuries sustained by India, the current condition of those injuries, and a prognosis for India’s recovery in this regard.

Noted above, the Perry Report shows that India suffers from PTSD, and effectively recommends that India, who requires at home behavioral support, obtain both family and individual therapy to assist India to regulate and relieve psychological stress and any adverse impacts from India’s trauma. (Pet., Attachment 8(c) at pdf p. 24.)

The petition also states that India continues to suffer from PTSD and anxiety. Though the petition states or indicates that India sought and presently continues therapy with Kinlloch, there are no reports from Kinlloch or any other provider describing India’s current condition in regard to India’s PTSD or anxiety. As the Perry Report is dated in 2022, it is not current. Considering that India is presently seeking therapy, it is unclear to the court whether the Perry Report describes India’s current condition.

For all reasons discussed above, absent sufficient information or evidence showing India’s current condition in this regard, which remains unclear to the court, the court is unable to determine whether the amount Defendants have offered to pay to settle India’s claims is reasonable, appropriate, and in India’s best interests.

As to the request that the court order the balance of the proceeds of the settlement be invested in a single-premium deferred annuity, the available information and evidence described above shows that payment of the amount of $227,461.31 will be structured through the funding of an annuity from Independent Life, and that the future periodic payment amounts will be made to the Trust beginning on July 1, 2036. The court’s calculations show that those payments will ostensibly begin upon India reaching the age of 18.

Though payment of the amount of $501,149.44 will also be made to the Trust, it is unclear to the court when those payments will begin, or the amount of those payments.

In addition, though Coccimiglio states that they recommend the structured payment plan described in the petition and above because it “best aligns with the goals and objectives communicated to me by Benjamin[]” (Coccimiglio Dec., ¶ 4), wholly absent from the petition is any description of the goals that were communicated to Coccimiglio by Benjamin, why the structure of payments to the Trust described in the petition accomplishes those goals, or how these goals are documented in the Trust or any other documents. For these and all further reasons described above, absent additional information including a copy of the Trust, the court is presently unable to determine if the structured payment plan described in the petition is in reasonable, appropriate, and in India’s best interests.

As to the attorney’s fees requested in the petition, “[i]n any case in which a trial court approves a settlement involving the payment of funds to a minor, the court must make an order for the payment of reasonable attorney fees. [Citations.] Rule 7.955 of the California Rules of Court establishes the procedure the court must follow and factors it may consider in determining whether an attorney's proposed fee is reasonable.” (Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1174 (Schulz).)

 “California Rules of Court, rule 7.955(a) provides that, in the absence of a fee agreement previously approved by the court, ‘the court must 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.’ [Citation.] In determining whether a proposed fee is reasonable, ‘[t]he court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor ... and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made.’ [Citation.]” (Schulz, supra, 27 Cal.App.5th at pp. 1174-1175.)

California Rules of Court, rule 7.955(b), sets forth the “nonexclusive” factors that the court may consider which, as is relevant here, include factors which “pertain mostly to the nature of the legal work involved.” (Schulz, supra, 27 Cal.App.5th at p. 1174.) Among these factors is “[t]he amount of the fee in proportion to the value of the services performed.” (Cal. Rules of Court, rule 7.955(b)(2).) The court may also consider “[t]he novelty and difficulty of the questions involved and the skill required to perform the legal services properly” (Cal. Rules of Court, rule 7.955(b)(3), and “[t]he amount involved and the results obtained” (Cal. Rules of Court, rule 7.955(b)(4).)

“Other factors pertain to other aspects of the representation, including ‘[t]he time limitations or constraints imposed by the representative of the minor ... or by the circumstances’ [citation]; ‘[t]he nature and length of the professional relationship between the attorney and the representative of the minor’ [citation]; ‘[t]he experience, reputation, and ability of the attorney or attorneys performing the legal services’ [citation]; and ‘[t]he time and labor required’ [citation]. In addition, the court may consider factors relating to the minor’s representative, including ‘[t]he informed consent of the representative of the minor’ [citation]; ‘[t]he relative sophistication of the attorney and the representative of the minor’ [citation]; and ‘[t]he likelihood, if apparent to the representative of the minor ... when the representation agreement was made, that the attorney’s acceptance of the particular employment would preclude other employment’ [citation].” (Schulz, supra, 27 Cal.App.5th at pp. 1174-1175.)

Though California Rules of Court, rule 7.955, “does not dictate a presumptively reasonable percentage or mathematical method of determining the appropriate attorney fees under a contingency agreement...” (Schulz, supra, 27 Cal.App.5th at p. 1175), the attorney fees requested in the petition, which represent 40 percent of the settlement proceeds, is not, under the facts of this case, within a reasonable range for the reasons further discussed herein.

For example, even if the court were to credit information and evidence showing the experience or reputation of India’s counsel, the results obtained by counsel, or the contingent nature of counsel’s representation of India and Petitioner and the attendant risks of that representation, there is no information or evidence to suggest to the court that the questions or issues raised in this case were novel, difficult, or complex, or that the services provided were different from those typically performed by counsel under the same or similar circumstances.

Furthermore, the general and conclusory descriptions of the services provided by counsel set forth in the McElroy and Stoll declarations prevent the court from determining the value of the services performed by counsel, and whether that value is in proportion to those services.

Information appearing in the petition also shows that Trial Lawyers for Justice will receive a percentage of any fees awarded in this proceeding. (Pet., Exh. G.) Wholly absent from the petition is any information or evidence showing the nature or value of the services performed by that firm, if any; the nature or length of the professional relationship between that firm and Petitioner, or the firm’s experience, reputation, or ability, among other factors. There is also no information showing the existence of any fee agreement between Petitioner and Trial Lawyers for Justice, the percentage provided for in that agreement, or showing any informed consent to the fees to be paid to that firm.

Though information appearing in the Stoll declaration indicates that the standard form retainer agreement between Stoll’s firm and Petitioner was executed on August 5, 2021, the Fee Agreement described above was not executed by Benjamin until July of 2025. For this reason, as to the fees requested by MPTL, there exists some question as to whether Petitioner understood that attorney McElroy’s acceptance of employment in this case would preclude other employment, or whether, at the inception of attorney McElroy’s representation, informed consent was given as to the attorney’s fee requested in the petition. (Cal. Rules of Court, rule, 7.955(b)(9).)

Moreover, considering that this case is related and consolidated for discovery purposes with the Moore Action, which the record shows arises from substantially similar if not identical facts and circumstances at issue in the Kenan Action, there exists some question as to whether the attorney’s fees requested in the petition include “inefficient or duplicative efforts ... not subject to compensation.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) This issue is not addressed or discussed in the petition, including as to whether attorney’s fees incurred as to any common issues between the Kenan Action and the Moore Action have been appropriately apportioned or allocated, or why no apportionment is required or appropriate. (See, e.g., Brown Bark III, L.P. v. Haver (2013) 219 Cal.App.4th 809, 829-830 [general discussion].) These issues are also not addressed or discussed in the petition.

The examples provided above are intended to be illustrative but not exhaustive of the factors that weigh against a finding that the attorney’s fees requested in the petition are reasonable.

 “California Rules of Court, rule 7.955 does not dictate a presumptively reasonable percentage or mathematical method of determining the appropriate attorney fees under a contingency agreement. Indeed, in adopting the rule, the Judicial Council explicitly preempted local rules regarding attorney fees for minors, many of which had established a baseline recovery of 25 percent. ... [W]hat is reasonable in applying the factors in California Rules of Court, rule 7.955 California Rules of Court, rule 7.955 in any particular case may comprise a range of percentages.” (Schulz, supra, 27 Cal.App.5th at p. 1175 & fn. 4 [noting that “a court may of course reasonably determine that 25 percent is an appropriate percentage in a given case.”].)
 

Under the totality of the circumstances present here including the court’s experience with this litigation and addressing attorney fee issues, and considering the factors further discussed above, the court finds that 25 percent of the amount offered to settle India’s claim, or $325,000, is an appropriate and reasonable percentage, and represents a reasonable attorney’s award in this case.

Though the court expects to approve the petition as to the total amount offered in settlement of India’s disputed claim, and as to attorney’s fees in the amount of $325,000 as further discussed above, the court requires the additional information and documents discussed and described herein to determine whether the settlement protects the interests of India. The court also acknowledges that the balance of the proceeds of the settlement to be invested in a single-premium annuity will change (i.e., increase) based on the attorney’s fees the court will authorize as further discussed above. As this will require an adjustment in the balance of the proceeds to be invested, the court will also require updated information regarding that adjustment, including any new or different terms and conditions of the annuity.

For all reasons discussed above, the court will continue the hearing on the petition, and require Petitioner to submit the additional information and documentation described herein, including without limitation a copy of the Trust, any necessary reports describing India’s current condition, and information and documents relating to the balance of the proceeds of settlement to be invested in a single-premium annuity. The additional information and documents described may be submitted in a supplemental memorandum or brief, or by appropriate declarations.”

Pursuant to the Minute Order, the court continued the hearing on the petition to February 27, and ordered petitioner to, on or before February 13, 2026, file and serve a supplemental memorandum or, if appropriate, declarations addressing the matters described in that order.

On February 13, Petitioner filed a supplemental declaration of attorney McElroy, which states that a report from therapists Alessandra Rigonati and Liz Bravo (the Therapists) at Calm 4 Kids (CALM) shows that India has been treating in the CALM Parent Child Treatment Program since August 5, 2025, and has been receiving cognitive behavior therapy or “CBT” to reduce the frequency, intensity and duration of anxiety symptoms, described as including rumination, avoidance, separate, and muscle tension. (Supp. McElroy Dec., ¶ 3.) Attorney McElroy further states that India has been attending regular weekly sessions over the course of treatment for India’s anxiety condition, and that Petitioner should be able to speak to India’s response to treatment and his anticipation of her continued participation in CBT. (Ibid.)

Attached to the supplemental declaration of attorney McElroy is a letter dated February 12, 2026 (the Letter), which is directed to “Portia Johnson” and Petitioner and signed by the Therapists. (Supp. McElroy Dec., ¶ 3 & Exh. 1.) The Letter states that India “has been receiving services through CALM’s Parent Child Treatment Program” since August 5, 2025; that India’s parents were referred to CALM by India’s pediatrician for a history of medical trauma and somatic symptoms; and that India is receiving CBT, which is described in the letter as “an evidence-based treatment focused on identifying, challenging and modifying cognitive patterns that contribute to presenting concerns.” (Ibid.) The treatment plan goals described in the Letter include “reducing the overall frequency, intensity, and duration of anxiety symptoms (including rumination, avoidance, separation, and muscle tension).” (Ibid.)

The supplemental declaration of attorney McElroy also includes a description of the scope of legal work and attorney’s fees relating to India’s settlement, and what attorney McElroy asserts are the complexities of this case including in regard to determining the cause or causes of the broken or defective part on the escalator that allowed India’s finger to become trapped, and whether that cause arose from either or both a defectively designed or manufactured component of the escalator or a poorly maintained or inspected system. (Supp. McElroy Dec., ¶¶ 5-8.)

Attorney McElroy further asserts that, when their firm and MPTL are brought into a case, each firm adopts the existing fee of the referring law firm; and that in this case, The Stoll Law Firm had an existing contingency fee retainer agreement for India of 40 percent once the case was in litigation; and that Trial Lawyers For Justice and MPTL agreed to work under that contingency fee arrangement. (Supp. McElroy Dec., ¶ 14.)

Attorney McElroy also includes with their supplemental declaration, an annuity proposal for India based on a fee recovery of 25 percent, and an annuity proposal based on a fee recovery of 33 percent. (Supp. McElroy Dec., Exhs. 2-3.)

Petitioner also filed on February 13, a declaration of attorney Kim K. Savo (attorney Savo), who states they are a trial attorney for MPTL representing the Kenan Plaintiffs in this case. (Savo Dec., ¶ 1.) Attorney Savo provides in their declaration, a description of the briefings, court hearings, client meetings, and written discovery involved in this action. (Savo Dec., ¶ 9.)

In a supplemental declaration also filed on February 13, Coccimiglio states that, though they referred in their prior declaration to payments being made to the “India Kenan Settlement Trust”, on further review, Coccimiglio clarifies that the structured settlement payments will not be made to a trust but instead directly to India pursuant to the structured settlement documents submitted in support of the petition. (Supp. Coccimiglio Dec., ¶ 2.)

Coccimiglio further states that they and Petitioner initially discussed the potential use of a trust as an option for administering the funds, and that after evaluating the objectives, costs, and administrative requirements associated with establishing and maintaining a trust, Petitioner and Coccimiglio ultimately determined that a trust structure was not necessary to accomplish the family’s goals, which include: to provide funding for college tuition, room, and board in an amount up to $100,000 per year for four years; to provide supplemental lifetime income beginning at age 30; to generate that lifetime income using a market-based solution that offers growth potential with downside protection; and to ensure that income payments would be guaranteed through years in which India may have dependents and increased financial responsibility. (Supp. Coccimiglio Dec., ¶¶ 3-4.)

As to the college funding objective, Coccimiglio states that objective will be funded through a guaranteed annuity that will pay to India the amount of $50,000 on a semi-annual basis for four years, for a total of eight guaranteed payments beginning on July 1, 2036, and ending on January 1, 2040. (Supp. Coccimiglio Dec., ¶ 5.) Coccimiglio asserts the semi-annual payment structure was selected to align with the timing of when tuition and related educational expenses are typically due (i.e., per academic semester), rather than providing a single annual payment, and will provide predictability and guarantee the availability of funds for tuition, room, and board in an amount up to $100,000 per academic year. (Supp. Coccimiglio Dec., ¶ 6.)

As to the lifetime income objective, Coccimiglio states that objective will be funded through an indexed annuity issued by Independent Life Insurance Company, which is “tied to the performance of the S&P 500 index, subject to a 10 [percent] cap on annual credited earnings and a 0 [percent] floor.” (Supp. Coccimiglio Dec., ¶¶ 7-8.) According to Coccimiglio, if the index performs positively, India will have the opportunity to receive credited interest up to the 10 percent, and if the index performs negatively in a given year, India’s account will not lose value due to market declines. (Supp. Coccimiglio Dec., ¶ 8.)

Coccimiglio states that the structure described above was selected to satisfy Petitioner’s request for a market based solution with downside protection, and provides greater growth potential than a traditional fixed annuity while eliminating the risk of market loss that would be present in direct equity market investments. (Supp. Coccimiglio Dec., ¶ 9.) According to Coccimiglio, the income payments generated from the indexed annuity are guaranteed pursuant to the terms of the annuity contract and designed to provide predictable supplemental income to India beginning at age 30 and continuing through the years during which India may have dependents. (Supp. Coccimiglio Dec., ¶ 10.) It is Coccimiglio’s professional opinion as a Certified Structured Settlement Consultant, that the proposed structured settlement plan directly aligns with and fulfills the goals communicated to Coccimiglio by Petitioner, and is reasonable, appropriate, and in India’s best interests. (Supp. Coccimiglio Dec., ¶ 11.)

Petitioner has also filed a supplemental memorandum in support of the request for the approval of attorney’s fees in the amount of 40 percent.

Analysis:

As a preliminary matter, the court previously determined, for all reasons further discussed in the Minute Order, that attorney’s fee of 25 percent of the amount offered to settle India’s claim, or the amount of $325,000, represents a reasonable attorney’s fee award under the totality of the circumstances present here including the court’s experience with this litigation and addressing attorney fee issues, and the factors further discussed in the Minute Order set forth above.

Though the court has considered the additional information and arguments presented in the supplemental McElroy declaration, the Savo declaration, and the supplemental memorandum, they do not change the court’s reasoning and analysis in regard to a reasonable attorney’s fee award.

In addition, the court notes that the petition includes a request for costs advanced by MPTL in the amount of $43,639.25, to be reimbursed from the proceeds of India’s settlement. (Pet., ¶ 13(b).) To the extent those costs include fees charged by experts retained for the purpose of determining the cause of the broken or defective escalator part that caused the injury at issue, it would appear that costs to be reimbursed from the proceeds of India’s settlement also address the complexities cited in the supplemental McElroy declaration. For these additional reasons, the court finds that 25 percent is an appropriate percentage, and that an award of attorney’s fees in the amount of $325,000 is within a reasonable range under the circumstances present here.

For the same reasons discussed in the Minute Order set forth above, the Moelleken Evaluation and Moelleken Notes are sufficient to provide a diagnosis and description of the physical injuries sustained by India, the current condition of those injuries, and a prognosis for India’s recovery in this regard.

Though the Perry Report described in the Order shows that India suffers from PTSD and anxiety, and the petition states that India has sought or continues therapy with Kinlloch, the Letter shows that India is presently receiving CBT through CALM, ostensibly to treat what appear to be ongoing anxiety symptoms. Absent information showing India is receiving treatment from another provider, the Letter appears sufficient to clarify India’s current condition. The Letter also suggests or indicates that India has not recovered completely from the emotional effects of any trauma India sustained as a result of the injuries described in the petition.

The court has also reviewed information appearing in the supplemental Coccimiglio and McElroy declarations, which effectively shows that the amount of $923,610.75 will be used to fund an annuity that will pay directly to India, beginning on July 1, 2036, eight guaranteed semi-annual payments in the amount of $50,000 each, for a period of four years; and to fund an indexed annuity which will pay to India, beginning on July 24, 2047, monthly guaranteed income as reflected in the petition, the Coccimiglio declaration filed in support of the petition, and the exhibits to the supplemental McElroy declaration. (Pet. [McElroy Dec.], Exh. E, pdf pp. 70-78; Coccimiglio Dec. [Pet.], ¶ 5; Supp. McElroy Dec., Exh. 2 at pdf pp. 18-20.)  

The petition appears complete, is submitted on a form approved by the Judicial Council of California, and discloses the information required by California Rules of Court, rule 7.951. For these reasons, the court finds that the Petitions are procedurally appropriate.

In addition, the court finds that the $1,300,000 settlement of India’s claims alleged in this matter, which includes amounts that will be used to fund the annuities described above and in the documents and declarations submitted in support of the petition, is reasonable, appropriate, and in India’s best interests. The court further finds that attorney’s fees in the amount of $325,000, and costs in the amount of $43,639.25, are reasonable and appropriate. Accordingly, the court will grant the petition, in part and in accordance with this ruling and the Minute Order.

The court has reviewed the proposed order submitted with the petition, and does not intend to sign it. The court will direct Petitioner to submit for the court’s signature, a corrected proposed order that reflects the court’s ruling herein.