Erin Mackey, et al. vs. Francisco Alanis Ascencion

Case Number

25CV01331

Case Type

Hearing Date / Time

Wed, 06/25/2025 - 10:00

Nature of Proceedings

Petition For Approval of Compromise of Disputed Claim Of Minor

Tentative Ruling

For Plaintiffs Erin Mackey, individually and as guardian ad litem for minors Anya Mackey and Kilian Mackey, minors, and Brendan Mackey: Erin Mackey

For Defendant Francisco Alanis Ascencion, also known as Francisco Ascencion Alanis: No appearance

RULING

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

Background

On February 28, 2025, plaintiffs Erin Mackey (Erin), Anya Mackey (Anya) and Kilian Mackey (Kilian), minors by their guardian ad litem Erin, and Brendan Mackey (Brendan) (collectively, {Plaintiffs) filed a complaint in this action against defendant Francisco Alanis Ascencion (Defendant), alleging five causes of action: (1) negligence (by Brendan against Defendant); (2) negligence (by Anya against Defendant); (3) negligence (by Kilian against Defendant); (4) property damage (by Erin against Defendant); and (5) loss of consortium by Erin against Defendant. (Note: To avoid confusion due to common familial surnames, the court will refer to all plaintiffs by their first names. No disrespect is intended.)

The complaint arises from a vehicle collision which occurred on April 15, 2023, when plaintiffs allege that a vehicle driven by Defendant rear-ended a vehicle driven by Brendan and owned by Erin, and in which Anya and Kilian were passengers. (Compl., ¶ 8.) Plaintiffs allege that, as a result of the collision, Brendan, Anya, and Kilian suffered physical injuries, and Erin suffered property damage and a loss of consortium. (Compl., ¶¶ 9-13.) Plaintiffs further allege that Defendant was arrested at the scene of the collision and later charged with driving under the influence of alcohol with a blood alcohol content over the legal limit, without a license, and with a prior “DUI” offense for which a bench warrant had been issued. (Compl., ¶¶ 14-17.)

On April 3, 2025, plaintiffs filed a notice of a conditional settlement of the entire case, stating that a request for dismissal of the action would be filed no later than December 31, 2025. (Apr. 3, 2025, Notice of Settlement, ¶ 1(b).)

On April 24, 2025, Erin filed a petition requesting the court’s approval of the settlement of of Killian’s claim that is the subject of this action. The court’s records reflect that no opposition to the petition has been filed.

The Petition

Information appearing in the petition, which is verified by Erin, shows that Erin (at times, “Petitioner”) is the parent of Kilian who is currently ten years of age. (Pet., ¶¶ 1 & 2(b).) The petition describes the accident that occurred on April 15, 2023, at the U.S. Highway 101 south off-ramp to Hot Springs Road in Santa Barbara, California, in which a vehicle operated by Brendan, in which Kilian was a passenger, was rear-ended by a vehicle operated by Defendant. (Pet., ¶ 5.)

The injuries suffered by Kilian as a result of the accident include a cervisprain, thoracic spine pain, sprain of lumbar spine and pelvis, associated segmental and somatic dysfunction of the cervical and thoracic regions, and contusion of the knees and lower legs. (Pet., ¶ 6.)

Kilian was initially evaluated at the Santa Ynez Emergency Department of Cottage Health (Cottage Health) on April 15, 2023, and thereafter received a course of chiropractic treatment at Solvang Chiropractic Center from April 20, 2023, through March 1, 2024. (Pet., ¶ 7.) Erin states that Killian has not recovered completely from the effects of the injuries described above, and that the following injuries from which Killian has not recovered are temporary: spinal symptoms which have improved and intermittent pain stemming from the accident. (Pet., ¶ 8(b).) The net settlement funds described herein are designated for a “PT” evaluation and related treatment of Killian which have been scheduled. (Ibid.) Any medical costs exceeding the settlement funds are part of a preserved uninsured motorist claim. (Ibid.)

Attached to the petition are medical records from Cottage Health and Solvang Chiropractic Center. (Pet., Attachment 8.) These records show that on April 15, 2023, Kilian, who was 8 years of age at the time, was evaluated by Robin Knauss, M.D. (Dr. Knauss) in Cottage Health’s emergency department. (Id. at pdf pp. 12-13.) The records state that, four hours prior to the evaluation, Kilian was a middle-rear seat passenger wearing a seatbelt in a booster seat, when the vehicle Kilian was traveling in was rear ended while stopped at a stoplight by a car coming off the freeway exit. (Id. at pdf pp. 12-13.)

Kilian presented to Cottage Health with right knee pain and no other complaints. (Pet., Attachment 8 at pdf pp. 12-14.) Dr. Knauss observed that Kilian was moving his knee normally, lifting it, straightening it, and bearing weight on it, and that while Kilian would “limp rather dramatically” when asked to ambulate across the room, but the limp was inconsistent throughout ambulation. (Ibid.) Kilian had no swelling, ecchymosis, deformity, or objective signs of fracture or other injury. (Ibid.) Dr. Knauss further noted that Kilian’s father was comfortable with discharging Kilian. (Ibid.)

Records from the Solvang Chiropractic Center (SCC) also attached to the petition demonstrate that on April 20, 2023, Kilian presented for an exam and treatment for injuries sustained in a car accident, which included pain in Kilian’s neck and middle and lower back. (Pet., Attachment 8 at pdf p. 18.) These records further reflect that Kilian’s cervical and lumbar spine range of motion was decreased by 50 percent and that Kilian suffered from dysfunction of the cervical and thoracic region and sprains of the cervical spine ligaments, the lumbar spine, and pelvis, among other things. (Ibid.) SCC performed chiropractic adjustment techniques to address these issues and dysfunctions. (Id. at pdf p. 19.)

The SCC records also reflect that on March 1, 2024, Kilian presented to SCC for his thirtieth treatment and final exam with respect to the injuries resulting from the accident. (Pet., Attachment 8 at pdf p. 20.) At the time of this final exam, Kilian’s cervical spine range of motion, cervical distraction, and shoulder depression had resolved, and the lumbar spine range of motion had ostensibly improved. (Ibid.)

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

To settle the claims alleged by Kilian in this action, Defendant’s insurance carrier, Aspire General Insurance Company (Aspire), has offered to pay the amount of $15,000 to Kilian, which represents per person bodily injury policy limits. (Pet., ¶ 10(a)-(b).) Petitioner states that the terms of the settlement provide that Aspire will pay the per occurrence bodily injury limits under the Aspire policy, which total $30,000, and that Kilian and Petitioner will each receive the amount of $15,000 in exchange for a release of Defendant and Aspire, while preserving all other claims. (Pet., ¶ 10(c); see also Attachments 11b(3) & 11b(6) at pdf p. 22.) The release to be provided by Kilian include a Civil Code section 1542 waiver as to the released parties, and Kilian, Erin, Anya, and Brendan will pursue remaining damages via a “UIM” claim and arbitration with American Family Connect Property and Casualty Insurance Company. (Pet., ¶ 10(c).)

Petitioner asserts that she does not have a claim against the recovery of Kilian other than for reimbursement of fees or expenses paid by petitioner as addressed in the petition. (Pet., ¶11(b)(2).) Petitioner asserts that the amount provided to petitioner as further described above has no effect on Kilian’s claim because Kilian cannot receive more than $15,000 under Defendant’s policy with Aspire. (Pet., Attachments 11b(3) & 11b(6) at pdf p. 22.)

The medical expenses to be paid or reimbursed from the proceeds of the settlement before any reductions total $5,451.93. (Pet., ¶ 12(a)(1).) The medical expenses paid total $5,226.93. (Pet., ¶ 12(a)(2).) Negotiated, contractual, or statutory reductions total $56.73. (Pet., ¶ 12(a)(3).) The medical expenses to be paid or reimbursed from the proceeds, and the amount of statutory or contractual liens, total $395.20. (Pet., ¶ 12(a)(4)-(5).)

Medi-Cal has paid the amount of $226.93 and has agreed to accept reimbursement in the amount of $170.20. (Pet., ¶ 12(b)(4) & Attachment 12b(4)(c).)

The amount charged by SCC for the care and treatment furnished to Kilian totals $5,225. (Pet., ¶ 12(b)(5)(b)(i)(A) & (C).) Of this total, the amount of $5,000 has been paid, and the remaining $225 will be paid from the proceeds of the settlement. (Pet., ¶ 12(b)(5)(b)(i)(D) & (F).)

Cottage Health charged the amount of $226.93 for the care and treatment furnished to Kilian, which has been paid. (Pet., ¶ 12(b)(5)(b)(ii)(A) & (C)-(D).) The negotiated reductions of this charge total $56.73, and the amount to be paid to Cottage Health from the proceeds of the settlement totals $170.20. (Pet., ¶ 12(b)(5)(b)(ii)(E) & (F).)

There are no attorney’s fees or expenses advanced by an attorney, for which court approval is requested. (Pet., ¶ 13.) Petitioner has paid none of the expenses described above. (Pet., ¶ 14.)

The net balance of the proceeds remaining for Kilian after payment of the requested expenses is $14,604.80, which is based on the gross amount of the settlement proceeds ($15,000) less the medical expenses to be paid from those proceeds ($395.20). (Pet., ¶¶ 15-16.)

Petitioner has been represented or assisted by Brian Leach (Leach) and the law firm of Leach and McGreevy, LLP (LMLLP) in preparing the petition or with respect to the claim asserted. (Pet., ¶ 17(a)(2) & Attachment 17d.) Leach and LMLLP are counsel for Defendant and Aspire, and became concerned with this matter, directly or indirectly, at the instance of Defendant or Aspire. (Pet., ¶ 17(d) & Attachments 17d-17e.) Petitioner and Leach do not have an agreement, and Leach and LMLLP have not and do not expect to receive attorney’s fees, for services provided in connection with the claim giving rise to the petition. (Id. at ¶¶ 17(c) & (f).)

There is no guardianship or conservator of the estate of Kilian. (Pet., ¶ 18(b).) Petitioner requests that the court order that the disposition of the balance of the proceeds of the settlement, in the amount of $14,604.80, be deposited in insured accounts in one or more financial institutions in this state subject to withdrawal only on authorization of the court. (Ibid.) The name, branch, and address of the depository is KeyPoint Credit Union, Goleta Branch, 7062 Market Place Drive, Goleta, California, 93117. (Pet., Attachment 18b(2).) Of the amount to be deposited, $2,000 will be placed in a blocked savings account, and $12,604.80 will be placed in a blocked certificate of deposit. (Ibid.)

Analysis

The 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; see also Barnes v. Western Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256, fn. 4.)

In addition, 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 medical records described above, insurance policy declaration forms, and a letter regarding a lien from the State of California Department of Health Care services, and attachments 17d, 173, and 18b(2). The petition is submitted on the required mandatory Judicial Council form, is verified, and includes sufficient information bearing on the reasonableness of the settlement described herein. The petition also discloses all of the information required by California Rules of Court, rule 7.951.

The information and evidence presented in the petition also is sufficient to show that the injuries from which Kilian has not recovered are temporary and not permanent.  

The court finds that the amount of $15,000 to settle the claims asserted by Kilian in this matter is both reasonable and appropriate and in Kilian’s best interests, also considering that information and evidence appearing in the petition shows that Kilian will pursue any remaining damages through arbitration. For these and all further reasons discussed above, the court will grant the petition.