Pending - Other Pending
Personal Injury - Motor Vehicle
CHRISTOPHER K. LUI
DOES 1 TO 50
NELSON DANIEL L. ESQ.
NATALE SILVIO L.
10/10/2017: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
11/3/2017: NOTICE OF REJECTION - APPLICATION AND ORDER FOR APOINTMENT OF GUARDIAN AD LITEM
10/10/2017: EX PARTE APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL
4/10/2019: Minute Order
3/26/2019: Minute Order
Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketMinute Order ( (Jury Trial)); Filed by Clerk[+] Read More [-] Read Less
Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Taken Off Calendar by Court[+] Read More [-] Read Less
DocketMinute Order ( (Final Status Conference)); Filed by Clerk[+] Read More [-] Read Less
DocketNOTICE OF REJECTION - APPLICATION AND ORDER FOR APOINTMENT OF GUARDIAN AD LITEM[+] Read More [-] Read Less
DocketEX PARTE APPLICATION AND ORDER FOR APPOINTMENT OF GUARDIAN AD LITEM-CIVIL[+] Read More [-] Read Less
DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)[+] Read More [-] Read Less
DocketComplaint; Filed by null[+] Read More [-] Read Less
DocketApplication ; Filed by Plaintiff/Petitioner[+] Read More [-] Read Less
Case Number: ****8889 Hearing Date: March 25, 2022 Dept: 30
The petition is approved pending the appearance of the Guardian Ad Litem at the hearing today and the submission of a separately filed MC-351. The appearance of the disabled adult is excused.
This hearing will be continued to allow time for the document to be filed.
Parties are to appear and confer with the Judicial Assistant regarding a date for a continued hearing.
Moving party is ordered to provide notice.
Case Number: ****8889 Hearing Date: January 6, 2022 Dept: 30
Department 30, Spring Street Courthouse
January 6, 2022
Petition to Approve Compromise of Pending Action of Person With a Disability (Daniel Espinoza, Age 44)
This action arises out of a vehicle accident which occurred on October 12, 2015. Daniel Espinoza (“Plaintiff”) was walking through a marked crosswalk on Levinson Street at the intersection of Normandie Avenue when Mario Rios drove his vehicle through the intersection and collided with Plaintiff. The vehicle driven by Mario Rios was owned by Dawn Rios. Plaintiff alleges to have suffered a traumatic brain injury as a result of the accident. Plaintiff further alleges that, as a result of the accident, he has become incapacitated and unable to make decisions for himself or manage his financial affairs.
On October 10, 2017, Plaintiff filed a Complaint against Mario and Dawn Rios (“Defendants”), alleging the following causes of action: (1) motor vehicle, and (2) general negligence.
On July 3, 2019, Plaintiff filed a Notice of Settlement of Entire Case.
On February 3, 2021, Plaintiff filed a Petition to Approve Compromise of Pending Action of Person with a Disability.
On February 11, 2021, Art Bonales (“Mr Bonales”), Plaintiff’s brother, filed an Application for Appointment of Guardian ad Litem. On the same date, the Court granted Mr. Bonales’ Application, and named Mr. Bonales as Plaintiff’s Guardian ad Litem.
On March 30, 2021, the Court heard Petitioner Mr. Bonales’ (hereinafter “Petitioner”) Petition to Approve Compromise of Pending Action of Person with a Disability. The Court noted that Petitioner’s Petition included four (4) defects with respect to the Special Needs Trust (the Trust in which Petitioner seeks to deposit the settlement funds). (See Minute Order Re: Hearing on Expedited Petition to Confirm Compromise, issued March 30, 2021.) The Court continued the hearing on Plaintiff’s Petition to May 12, 2021 and ordered Plaintiff to file a complete and amended Petition with all required attachments correcting the identified deficiencies.
On May 12, 2021, Petitioner’s Petition came on for hearing once again. During the hearing, Petitioner sought clarification as to the Court’s March 30, 2021 Minute Order as to how to properly amend the Petition. The Court ordered Petitioner to amend the Special Needs Trust and file a supplement to the Petition, addressing the four (4) deficiencies identified in the March 30, 2021 Minute Order. The Court continued the hearing once more to June 28, 2021 for Petitioner to make the discussed amendments.
On June 28, 2021, Petitioner’s Petition came on for hearing for a third time. The Court noted that Plaintiff’s counsel failed to comply with the Court’s previous orders and failed to supplement the Petition. For this reason, the Court denied Petitioner’s Petition to Approve Compromise of Pending Action of Person with a Disability.
On October 1, 2021, Petitioner filed a new Petition to Approve Compromise of Pending Action of Person with a Disability. Petitioner’s Petition was scheduled to come before the Court for hearing on December 1, 2021.
On November 30, 2021, on the Court’s own motion, the Court continued the hearing upon Petitioner’s Petition to allow the Probate Department to review and make their recommendation as to the Special Needs Trust. The hearing upon Petitioner’s Petition was continued to January 6, 2022.
Plaintiff’s Petition is now before the Court.
Petition to Approve Compromise of Pending Action of Person With a Disability:
Order appointing Guardian ad Litem: The Court signed an Order appointing Plaintiff’s brother, Mr. Bonales, as Plaintiff’s Guardian ad Litem on February 11, 2021.
Settlement: See Petition, at p. 3, 11; Attachment 11.
Plaintiff, Daniel Espinoza
Injuries: As a result of the accident, Plaintiff suffered a left basal ganglia hemorrhage, bilateral tibial fractures, large frontoparietal scalp laceration, and multiple facial fractures. Plaintiff received multiple blood transfusions and was described by physicians as having a “poor overall prognosis and low chance of functional recovery.” (See Petition, Attachment 9c [Harbor UCLA Records].) On November 6, 2015, Plaintiff was transferred to Colonial Care Center where he has been permanently institutionalized as he has become incapacitated due to his injuries. (Petition, 8; Attachment 9c.) Plaintiff’s brother and Guardian ad Litem, Mr. Bonales, makes all of Plaintiff’s life care decisions. (Petition, 9c; Attachment 9c.) Plaintiff has submitted his medical records as Attachment 9c to this Petition.
Medical Expenses: See Petition, 13; Attachment 13b (4).
Department of Health Care Service, Recovery Section
The Department of Health Care Services’ Medi-Cal Program has paid the entirety of Plaintiff’s medical expenses which accrued as a result of the subject accident. The total amount of Plaintiff’s medical expenses, which has been paid by the Department of Health Care Services, is $158,282.42. (See Petition, Attachment 13b (4) at p. 1 [letter from Department stating that Plaintiff has received benefits totaling $158,282.42].)
On July 20, 2021, Plaintiff’s counsel sent a letter to the Department of Health Care Services inquiring whether the Department would reduce Plaintiff’s Medi-Cal lien, which currently totaled $158,282.42. (See Petition, Attachment 13b (4).) On July 29, 2021, the Department wrote back to Plaintiff’s counsel, confirming that they have “reduced the lien for reimbursement of the reasonable value of benefits from $158,282.42 to $6,200.00.” (See Petition, Attachment 13b (4) at p. 1.) Thus, based upon proof of the reduction of Plaintiff’s Medi-Cal lien, $6,200.00 of the settlement funds will be used to reimburse the Department for Plaintiff’s medical expenses.
Costs: See Petition, 14b.
Los Angeles Police Department, Police Report
Medical Records, Harbor UCLA Medical Center
Mobile Notary Public (Release)
Filing Fee/Service Fees
Photos, Copies, FedEx, etc. (Reduced)
Mobile Notary Public (Special Needs Trust)
Attorney’s Fees: See Petition, 14a; Attachment 14a.
Attorney’s Fees to Nelson and Natale LLP (32%)
Plaintiff’s counsel requests attorney’s fees in the amount of $8,000, which is equivalent to 32% of the total settlement amount ($25,000).
Petitioner submits the Declaration of Silvio Natale, Esq. (“Plaintiff’s counsel”) in support of the request for attorney’s fees. Plaintiff’s counsel states that the attorney's fees request in the amount of $8,000 is warranted for the following reasons. First, Plaintiff’s counsel states that a great deal of skill was employed to reduce Plaintiff’s Medi-Cal lien from $158,282.42 to $6,200.00. (Petition, Attachment 14a at 2(3).) Second, Plaintiff’s counsel states that he has worked continuously on this matter for four (4) years, since this action was filed on October 10, 2017. (Petition, Attachment 14a at 2(8).) Third, Plaintiff’s counsel states that the Retainer Agreement provides that Plaintiff’s counsel is entitled to 40% contingency fee, however Plaintiff’s counsel has chosen to reduce the contingency fee to 32%. (Petition, Attachment 14a at 2(12).) Lastly, Plaintiff’s counsel states that his firm has expended over 65 hours in this litigation and, at an hourly rate of $300 per hour, Plaintiff’s counsel has performed work valued over $19,500. (Petition, Attachment 14a at 2(8).) Ultimately, Plaintiff’s counsel’s Declaration supports the 32% award of attorney’s fees. (Cal Rules of Court, Rule 7.955(c).)
Petitioner provides a copy of the Retainer Agreement as Attachment 18a. (Petition, Attachment 18a.)
Attorney’s fees (32%)
Total fees and costs
Special Needs Trust
Petitioner proposes to pay or transfer the funds to the trustee of a Special Needs Trust under Probate Code sections 3604 and 3611(c) for the benefit of the adult person with a disability. Petitioner has attached the terms of the proposed Special Needs Trust as Attachment 19b (4). (Petition, Attachment 19b (4).)
The Special Needs Trust is improper and should be disallowed as the net settlement totals a mere $9,900.00. Special Needs Trusts “are not advisable if funded under $100,000 because of the cost and delay of funding them, filing fees, accounting costs, attorney and trustee fees, etc.”
As opposed to disbursing the settlement funds within a Special Needs Trust, the settlement funds be disbursed by the following method: the funds are to be turned over to Plaintiff’s brother [Petitioner Art Bonales] pursuant to Probate Code section 3611(d). That subsection provides that for amounts under $20,000 where there is no conservatorship to receive the funds on behalf of the disabled plaintiff. In such an instance, the court can allow the funds to be held “on any other conditions the court in its discretion determines to be in the best interest of the minor or person with disability” Here, that could mean that petitioner would hold the funds on behalf of plaintiff, with the funds to be used to purchase items or make spending that would benefit plaintiff.
The Court has reviewed the Petition to Approve Compromise of Pending Action of a Person with a Disability. The Court finds that Petitioner’s request for the creation of and distribution of the settlement proceeds within a Special Needs Trust is improper and defective.
The Court continues the hearing upon Petitioner’s Petition to Approval Compromise of Pending Action of a Person with a Disability for Petitioner to submit an amended Petition and Proposed Order requesting a new method of distribution. The new filing should include a proposed order detailing the creation of new bank account just for this purpose and setting forth the manner in which the guardian may spend these funds for the benefit of Plaintiff.
On the hearing date, discuss an appropriate continuance date with the Judicial Assistant.
Case Number: ****8889 Hearing Date: December 1, 2021 Dept: 30
DANIEL ESPINOZA VS MARIO RIOS, ET ALCourt Order Re: Continuance of the December 1, 2021 Hearing on Petition to Confirm Compromise of Disputed Claim with Special Needs Trust to January 6, 2022 at 1:30 p.m.Having reviewed and considered the contents of the Petition, and to allow the Probate Department to review and make their recommendation as to the Special Needs Trust, the Court orders: On the Court's own motion, the Hearing on Petition to Confirm Minor's Compromise with Special Needs Trust Filed by Petitioner/Guardian Ad Litem, Art Bonales, as to Claimant Daniel Espinoza (Age 44) a Person With a Disability scheduled for 12/01/2021 is continued to 01/06/2022 at 01:30 PM in Department 30 at Spring Street Courthouse. Counsel for Plaintiff is ordered to give notice and to file proof of service of said notice"
Case Number: ****8889 Hearing Date: March 30, 2021 Dept: 28
Petition to Approve Compromise of Pending Action on Behalf of Disabled Adult Daniel Espinoza
Having considered the petitioning papers, the Court rules as follows. opposing papers have been filed.
On October 10, 2017, Plaintiff Daniel Espinoza filed a complaint against Defendants Mario Rios and Dawn Rios. Plaintiff Daniel Espinoza alleges general and motor vehicle negligence in the complaint arising from an automobile-pedestrian collision that occurred on October 12, 2015.
On February 3, 2021, Petitioner Art Bonales (“Petitioner”) filed a petition to approve a compromise of pending action on behalf of Claimant Daniel Espinoza (“Claimant”).
An Order to Show Cause Re: Dismissal (Settlement) is scheduled for May 12, 2021.
The Court has found four defects in the petition that preclude the granting of the petition.
First, no proof of service has been filed as to the State Director of Health Care Services, the Director of State Hospitals, and the Director of Developmental Services at the office of each director in Sacramento as required by Probate Code section 3602, subdivision (f).
Second, Article One, Section Three of the trust instrument improperly allows for the distribution of assets to unnamed remainder beneficiaries. More specifically, the trust states “Although Beneficiary is the sole Beneficiary during his life (see POMS SI 01120.201(F)), the Trust also has remainder beneficiaries . . . .” The trust must be modified to clearly indicate that the remainder beneficiaries of the trust shall be Claimant’s heirs-at-law in compliance with Probate Code section 6400, et seq. The trust may not identify specific beneficiaries.
Third, the trust does not contain a required provision that all statutory liens in favor of the State Department of Health Care Services, the State Department of State Hospitals, the State Department of Developmental Services be satisfied prior to distribution in compliance with Probate Code section 3604, subdivision (d).
Fourth, there are no facts alleged showing Claimant is likely to have special needs that will not be met without the trust and the money to be paid to the trust does not exceed the amount that appears reasonable necessary to meet the special needs of Claimant. (See Prob. Code, ; 3604, subd. (2)-(3).) The evidence showing Claimant has a traumatic brain injury such that he relies on Petitioner, alone, is insufficient for the Court to make the above required findings.
Based on the foregoing, the hearing on the petition is CONTINUED to May 12, 2021 at 8:30 a.m. to allow Petitioner to file a complete an amended petition with all required attachments and proposed orders correcting the above-identified deficiencies.
Petitioner is ordered to give notice of this ruling.
Petitioner is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.
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