Tentative Rulings

Case Number: BC561140    Hearing Date: January 14, 2020    Dept: 50

Superior Court of California

County of Los Angeles

Department 50

Background

On October 17, 2014, Plaintiff Elba P. Garza (“Garza”) filed this action against Defendants Rosalinda Garza-Wiesand (“Garza-Wiesand”) and Theodore Wiesand (“Wiesand”) (jointly, “Defendants”) alleging, among other things, financial elder abuse. Garza also seeks to quiet title to two properties, located at 236 S. Avenue 55, Los Angeles, California 90042 and 238 S. Avenue 55, Los Angeles, California 90042 (jointly, the “Properties”). The operative First Amended Complaint (“FAC”) was filed on August 10, 2015. On October 7, 2015, Garza-Wiesand filed a Cross-Complaint against, among others, Garza and Edward L. Perez (“Perez”).

Garza’s guardian ad litem Hector A. Garza, Jr. (“Petitioner”) now petitions for approval of a settlement between Garza and Edward L. Perez (“Perez”). Garza-Wiesand opposes.

Discussion

As an initial matter, the Court notes that although Petitioner seeks approval for a settlement between Garza and Perez in Case No. BC561140, Perez is not a named defendant in Garza’s operative FAC. Therefore, it is unclear what authority the Court has to approve or disapprove of a settlement between parties who are not adverse. Presumably, Petitioner actually seeks approval of a settlement in the related case, Case No. BC465205. This is supported by the fact that the settlement agreement attached to the petition sets forth Case No. BC465205 as the case being settled. There, Perez and Garza have asserted claims and cross-claims against one another, namely for quiet title to the Properties.

Garza and Perez’s settlement contains the following terms:

• 236 S. Avenue 55 will belong to Perez;

• 238 S. Avenue 55 will belong to Garza;

• The Estate of Hector Garza, Sr. shall assign its right, title, and interest in and to Hector Garza, Sr.’s community property interest in the Properties to Perez;

• Garza will be entitled to half the income from 236 S. Avenue 55 and all of the income from 238 S. Avenue 55 during her lifetime; after her death, her estate or trust will hold title to 238 S. Avenue 55; and

• The Estate of Hector Garza, Sr. will receive $100,000 from the receivership now holding funds derived from income from the Properties.

Garza-Wiesand opposes on a number of grounds. First, Garza-Wiesand asserts that Garza is currently under a conservatorship, Case No. BP170031. Martha Hidalgo, one of Garza’s daughters, is Garza’s conservator. Garza is represented by counsel in her probate action (Bruce Ellman). Garza-Wiesand contends that this settlement must be approved by the Probate Court, but it appears that no notice of these proceedings or the pending settlement have been given to the Probate Court, to Garza’s probate counsel, or to the conservator. Second, Garza-Wiesand asserts that Petitioner has a conflict of interest in remaining as Garza’s guardian ad litem. Garza-Wiesand contends that Petitioner lives in Garza’s home, and that the settlement would benefit Petitioner personally, to Garza’s detriment, because no consideration is offered to Garza for releasing her claims.

The Court notes that Garza-Wiesand offers no evidence in support of any of the assertions made in her opposition. In any event, Petitioner responds to Garza-Wiesand’s arguments by asserting that the Probate Court has been apprised of the status of the civil cases and that the Probate Court has expressed a disinclination in overseeing any aspect of the civil cases, including, presumably, this motion. (Garza, Jr. Decl., p. 2:23 – 3:4.) Petitioner also asserts that Ms. Hidalgo has been made aware of this motion and does not oppose it. (Hidalgo Decl.,

¶ 2.)

Based on the evidence presented, the Court finds that the petition fully discloses all information having any bearing on the reasonableness of the compromise and is properly verified by Petitioner. (Cal. Rules of Court, rule 7.950; Prob. Code § 3500.) Furthermore, the Court finds that Petitioner has demonstrated that the compromise is reasonable and in the best interest of Garza. However, the Court notes that Petitioner failed to include the mandatory proposed order (Form MC-351).

Conclusion

Based on the foregoing, the petition to approve the compromise of Garza’s claims against Edward Perez is granted. However, the Court orders Petitioner to lodge the mandatory proposed order for the petition within 5 days of this Order.

Petitioner is ordered to provide notice of this ruling.

DATED: January 14, 2020 ________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court