Nathan Lopez vs Salvador Lopez Verduzco

Case Number

23CV01701

Case Type

Hearing Date / Time

Fri, 12/01/2023 - 10:00

Nature of Proceedings

Minor's Compromise

Tentative Ruling

For all reasons discussed herein, the petition for approval of compromise of disputed claim of minor filed by petitioner and guardian ad litem Louis Lopez is granted.

Background:

This action was filed by plaintiff Nathan Lopez, a minor (Nathan), and Louis Lopez, Nathan’s guardian ad litem (Louis) on April 26, 2023. (Note: Due to common familial surnames, the court will refer to all plaintiffs, collectively, as plaintiffs and individually by their first names to avoid confusion. No disrespect is intended.) As alleged in the operative first amended complaint (FAC):

Defendant Salvador Lopez Verduzco, the operator of a motor vehicle, caused injuries to plaintiffs on July 12, 2022, at 2400 Modoc Road in Santa Barbara, California, when defendant failed to either signal that he was turning right or to check his rear-view mirror to determine the location of plaintiff he had just passed. (FAC, ¶¶ MV-1; MV-2(a); Attachment To FAC [Second Cause of Action] at ll. 2-3].) Defendant made an unsafe turn in violation of Vehicle Code section 22107. (FAC, Attachment at ll. 3-4.) The FAC alleges two causes of action for motor vehicle and violation of statute against defendant Verduzco.

On November 27, 2023, the court granted the ex parte application of Nathan to advance the hearing on a petition for approval of compromise of a disputed claim of minor (the petition), and advanced the hearing on the petition to December 1, 2023. Louis filed the petition on the same day.

The Petition:

Louis is Nathan’s parent. Nathan is currently fifteen years of age. The petition describes the incident that occurred on July 12, 2022, in which defendant made what petitioner contends was an unsafe turn into his driveway causing Nathan, who was riding an electric bike, to collide into the passenger side mirror of defendant’s vehicle.

After the subject accident, Nathan was transported via ambulance to Santa Barbara Cottage Hospital where his left arm was evaluated. Nathan was diagnosed with a dual bone left forearm fracture. Sean Early, M.D. (Dr. Early), performed a closed reduction of the broken bones and provided follow up treatment following surgery. Petitioner states that Nathan has recovered completely from the effects of the injuries described in the petition, and that there are no permanent injuries.

Attached to the petition are Nathan’s medical records from the Emergency Department at Santa Barbara Cottage Hospital (the hospital). Records of Nathan’s hospital visit following the accident state that Nathan, who was then thirteen years of age, arrived at the hospital’s emergency department on July 12, 2022, and was examined by attending physician Brett Wilson, M.D. (Dr. Wilson.) The hospital medical records state that Nathan was traveling on an electric bicycle at approximately 30 miles per hour when a truck pulled into a driveway directly in front of him. Nathan struck the vehicle and went on top of its hood.

At the scene of the accident, Nathan was given pain control medication. At the hospital, Nathan was diagnosed with a left forearm closed fracture resulting from blunt trauma. Nathan also reported inner leg pain. The examination of Nathan revealed superficial abrasions on Nathan’s leg. No other injuries were observed or revealed.

At the hospital, Nathan underwent outpatient surgery for a closed reduction and cast. Hospital records reflect that Nathan would require additional orthopedic surgical management in the near future. Nathan was discharged from the hospital on July 12, 2022.

The records from Summit Surgery Center of Santa Barbara attached to the petition demonstrate that Nathan underwent a subsequent procedure to remove implant hardware from his left radius on November 29, 2022. The preoperative diagnosis by Summit Surgery Center reveals a healed left radial shaft fracture.

Also attached to the petition are records from Sean Early, M.D. (Early MD). These records reflect that Nathan was examined and evaluated at Early MD on various dates in July, August, September, November, and December 2022, for the purpose of post operative checkups, cast overwrap and removal, and clinical examinations before and following a surgical pin removal. The Early MD records reflect that Nathan’s incisions were well healed, that Nathan had full flexion and extension of his elbow and wrist as well as full pronation and supination. Nathan complained of no pain including while performing lightweight exercises. Early MD records also reflect that Nathan was eventually cleared to return to all activities per his comfort level.

Petitioner Louis asserts that he has made a careful and diligent inquiry and investigation into the facts and circumstances of the incident in which Nathan was injured, the responsibility for the incident, and the nature, extent, and seriousness of Nathan’s injuries. Petitioner understands that if the compromise proposed in the petition is approved by the court and consummated, Nathan will be forever barred from seeking any further recovery of compensation from the settling defendant even though Nathan’s injuries may in the future appear to be more serious than they are now thought to be.

The total amount offered in settlement of Nathan’s claims by defendant’s insurance carrier in this matter is $150,000. This is a policy limits settlement. The full amount of the settlement will be paid upon the court signing the order approving the petition. No defendant has offered to pay money to any person other than Nathan to settle claims arising out of the same accident that resulted in Nathan’s injuries. Petitioner does not have a claim against the recovery of Nathan other than for reimbursement of fees or expenses paid by petitioner as addressed in the petition and herein.

Medi-Cal paid the amount of $5,769.50, and has agreed to accept reimbursement in the amount of $4,327.13. Accordingly, the medical expenses to be paid or reimbursed from the proceeds of the settlement total $4,327.13.

The amount of attorney’s fees for which court approval is requested is $37,500.00. The declaration of counsel Robert S. Patterson (Patterson) is attached to the petition. Counsel declares that he and his staff have been working on this matter since July 27, 2022. Counsel and his staff spoke to and met with Nathan’s parents on numerous occasions to monitor Nathan’s recovery from his injuries and to discuss his claim and the legal and practical issues attendant thereto. Counsel obtained and reviewed Nathan’s medical records and investigated the facts and circumstances of the accident to identify persons or entities potentially responsible for the accident. Counsel prepared and filed a complaint on behalf of Nathan and prepared and submitted a settlement demand to defendant’s automobile insurance company. After negotiation and with the consent of Nathan’s guardian ad litem and mother, a settlement was reached in this matter in the amount of $150,000.

Counsel further declares that Nathan received medical benefits in the amount of approximately $5,769.50 through the Medi-Cal program which paid for his treatment. Counsel provided notice of Nathan’s personal injury claim, as well as other required information, to the Department of Health Care Services (DHCS). Counsel also conducted legal research regarding the disposition of Medi-Cal liens, and negotiated a reduction of the DHCS lien from $5,769.50 to $4,327.13.

The attorney’s fees requested by counsel represent 25 percent of the settlement amount. Counsel has limited his practice to personal injury litigation for 38 years. Counsel’s hourly rate is $500 per hour. Counsel’s customary fee for similar matters is 40 percent. Counsel has spent more than 20 hours prosecuting this claim on Nathan’s behalf and has advanced more than $500 in costs.

A copy of a written Contingency Fee Agreement (the fee agreement) signed by Louis (petitioner) and Patterson Law (the Patterson firm) and relating to professional services necessary to prosecute the claims at issue in this matter is attached to the petition. Pursuant to the terms of the fee agreement, Louis agreed to pay attorney’s fees in the amount of thirty-three and one-third percent of any recovery in this matter, by way of settlement or otherwise. Once a complaint was filed, or mediation or arbitration proceedings commence, Louis agreed to an attorney’s fee of forty percent of any recovery obtained.

Counsel did not become concerned with this matter directly or indirectly at the instance of a party against whom the claim is asserted or a party’s insurance carrier. Counsel does not represent and is not employed by any other party or insurance carrier involved in this matter. Counsel 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 giving rise to this petition. Further, counsel does not expect 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.

Additional expenses to be paid from Nathan’s share of the proceeds total $1,011.65. These expenses relate to filing and electronic filing processing fees, and fees to obtain copies of Nathan’s medical records.

The net balance of the proceeds remaining for Nathan after payment of all requested fees and expenses (petition item no. 16) is $107,161.22. In the Summary section (item no. 17), the petition lists gross settlement proceeds of $150,000, from which expenses totaling $42,838.78 will be deducted (consisting of medical expenses of $4,327.13, attorneys’ fees of $37,500, and other expenses of $1,011.65), for a balance of $107,161.22.

There is no guardianship or conservator of the estate of Nathan. Petitioner requests that the court order disposition of the balance of the proceeds of the settlement, in the amount of $107,161.22, to be deposited in insured accounts in one or more financial institutions in this state and subject to withdrawal only on authorization of the court. The name, branch, and address of the depository is Golden 1 Credit Union, Goleta Branch, 5676 Calle Real, Goleta, California, 93117.

The petition is verified by Louis.

Analysis:

A guardian ad litem appearing for a minor in any action may, with the court’s approval, settle the action. (Code Civ. Proc., § 372, subd. (a)(3); see also Prob. Code, § 3500, subd. (a)(1), (b), (d) [if a minor with a disputed claim for damages does not have a guardian of the estate, the minor’s parents may compromise the claim upon approval of the court].) The requirement that “the proposed compromise of a minor’s claim be approved by the trial court exist[s] to protect the best interests of the minor” by “adding an extra layer of scrutiny to the settlement of the minor’s claims.” (Pearson v. Superior Court (2012) 202 Cal.App.4th 1333, 1338, 1339.)

“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 submitted on a completed and approved Judicial Council form, 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.” (Cal. Rules of Court, rule 7.950; Barnes v. Western Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256, fn 4.) If the petitioner has been represented by an attorney in preparing the petition, the petition must also disclose the information described in California Rules of Court, rule 7.951(1) through (6), and the petitioner and the minor must attend the hearing unless the court for good cause dispenses with their appearance. (Cal. Rules of Court, rules 7.951; 7.952(a).) The court may also require the presence and testimony of witnesses. (Cal. Rules of Court, rule 7.952(b).)

The court has reviewed the petition and its attached documentation, including the Patterson declaration and attachments 9 and 14(a). The petition is submitted on the mandatory Judicial Council form, is verified, and includes information bearing on the reasonableness of the settlement described herein. The petition also discloses the information required by California Rules of Court, rule 7.951. In addition, the evidence presented in the petition demonstrates that Nathan has recovered completely from the effects of the injuries described in items 6 through 8 of the petition, and that there are no permanent injuries.

The court finds that the amount of $150,000 to settle Nathan’s claims in this matter is both reasonable and appropriate, and is in Nathan’s best interests. The court further finds that the attorneys’ fees claimed for investigating, prosecuting, and settling Nathan’s claims, ($37,500) and the expenses incurred by counsel in connection with the claim ($1,011.65) are reasonable and appropriate. Therefore, the petition will be granted.