Case Number: BC606662    Hearing Date: July 13, 2017    Dept: 37

CASE NAME:                       Flores, et al. v. 341 S. Alvarado, LLC, et al.

CASE NUMBER:                 BC606662

HEARING DATE:                 7/13/17

CALENDAR NUMBER:      1

DATE FILED:                        1/8/16

TRIAL DATE:                        8/22/17

NOTICE:                                OK

PROCEEDING:                    Petition to Approve Minor’s Compromise

PETITIONERS:                     Juan Macario Cux (parent and guardian ad litem for Plaintiffs Magdalena Macario and Ana Macario); Viviana Areli Ibarra Flores (parent and guardian ad litem for Erik Puac, Anthony Santos Puac, and Allison Rosalinda Puac); Blanca Liliam Lopez (parent and guardian ad litem for Cesar Ethen Cardona Palacios); and Eloisa Esmeralda Ibarra (parent and guardian ad litem for Euddy Daniel Florida, Maria Elizabeth Florida, Janet Joselyn Florida, Chantal Esmeralda Velasquez).

OPPOSING PARTIES:        None

COURT’S TENTATIVE RULING

 

The unopposed petitions are GRANTED, subject to each guardian ad litem confirming at the hearing that they believe the settlement is in the best interests of their child.  Counsel for Petitioners to give notice.

 

STATEMENT OF THE CASE

 

The factual background to the case is set forth in the court’s January 30, 2017 ruling on the demurrer to the First Amended Complaint (“FAC”).  This is a habitability case.  Plaintiffs are eighteen individuals comprising three families who respectively reside at units 200, 208, and 308 of the premises located at 341 S. Alvarado Street, Los Angeles, California 90057.  Defendants—341 S. Alvarado, LLC (“341 Alvarado”); Jonathan Wintner (“Wintner”); MF Buildings, Inc. dba MF Property Management (“MFPM”);[1] Michael Froehlich (“Froehlich”); Commonwealth Properties, LLC (“Commonwealth”); Alvarado, LLC (“Alvarado”); and Moussa Kashani (“Kashani”)—are alleged to be the owners and managers of the property at various points in time from 2012 to the present.  Specifically, Plaintiffs allege that 341 S. Alvarado owned the property from June 12, 2012 to May 30, 2014 and that Wintner is the sole member and managing principal of 341 Alvarado; that MFPM managed the property during that time period and that Froehlich is the owner and/or principal of MFPM; that Commonwealth owned the property from May 30, 2014 to April 16, 2015 and that Kashani was the sole member and manager of Commonwealth during that time; and that Alvarado has owned the property since April 16, 2015.  In May 2016, Plaintiffs added Cetus Enterprises, Inc. (“Cetus”), Vantage Asset Management Ltd. (“Vantage”), and LB Property Management, Inc. (“LB”) as Doe defendants 1-3.  On August 29, 2016, Plaintiffs dismissed Kashani from the case.

 

Based on these facts, Plaintiffs assert seven causes of action in the operative First Amended Complaint (FAC): (1) breach of the implied warranty of habitability; (2) tortious breach of the implied warranty of habitability; (3) negligence; (4) intentional infliction of emotional distress; (5) private nuisance; (6) violation of Civil Code section 1942.4; and (7) violation of Business and Professions Code section 17200.

 

Defendant Commonwealth settled with Plaintiffs and its good faith settlement with Plaintiffs was approved on June 13, 2017.  Defendants 341 Alvarado, Wintner, MFPM, Froehlich, Cetus, LB, and Alvarado have also respectively settled with Plaintiffs.  On June 13, 2017, Plaintiff’s counsel advised the court that Defendant Vantage has agreed to a settlement but has no money which means Plaintiff will probably dismiss them from this case.  Plaintiff states that the total and final settlement between Plaintiffs and all Defendants is $3,646,666.67.  (Supp. Brief 2.)

 

DISCUSSION

 

If an action is pending and settlement is effected prior to trial, the minor’s compromise must be approved by the court.  ( Code Civ. Proc., § 372.)  The trial court is authorized to approve and allow payment of reasonable expenses, costs, and attorney fees in an action concerning the compromise of a minor’s claim.  (Prob. Code, § 3601, subd. (a); Curtis v. Estate of Fagan (2000) 82 Cal.App.4th 270, 277-279; see also Code Civ. Proc., § 373.5 [“The reasonable expenses of the guardian ad litem, including compensation and counsel fees, shall be determined by the court and paid as it may order, either out of the property or by plaintiff or petitioner”].)

 

The plaintiffs in this case are ten minors acting through their parents and guardians ad litem.  They are: (1) Magdalena Macario, acting through Juan Macario Cux; (2) Ana Macario acting through Juan Macario Cux; (3) Erik Puac, acting through Viviana Areli Ibarra Flores; (4) Anthony Santos Puac, acting through Viviana Areli Ibarra Flores; (5) Allison Rosalinda Puac, acting through Viviana Areli Ibarra Flores; (6) Cesar Ethen Cardona Palacios, acting through Blanca Liliam Lopez; (7) Euddy Daniel Florida, acting through Eloisa Esmeralda Ibarra; (8) Maria Elizabeth Florida, acting through Eloisa Esmeralda Ibarra; (9) Janet Joselyn Florida, acting through Eloisa Esmeralda Ibarra; and (10) Chantal Esmeralda Velasquez, acting through Eloisa Esmeralda Ibarra.

 

The court has reviewed the petitions and related attachments, the Brief and Supplemental Brief and the supporting declarations of counsel and each guardian ad litem.

 

 

 

 

1.         Plaintiff Ana Macario

 

Defendants have agreed to pay Plaintiff Ana Macario $130,000.00 to settle her claims in lieu of a trial on the merits.  Of the settlement amount, $60,542.34 will be used to pay Ana Macario’s attorney’s fees and other litigation costs and expenses, leaving her $69,457.66.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payments to be made: $41,292.32 to be paid on 3/30/2025 and $53,198.59 to be paid on 3/30/2032.  The chosen institution is Metrolife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

2.         Plaintiff Magdalena Macario

 

Defendants have agreed to pay Plaintiff Magdalena Macario $130,000.00 to settle her claims in lieu of a trial on the merits.  Of the settlement amount, $60,542.34 will be used to pay Magdalena Macario’s attorney’s fees and other litigation costs and expenses, leaving her $69,457.66.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payments to be made: $37,700.18 to be paid on 3/10/2023 and $49,398.85 to be paid on 3/10/2030.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

3.         Plaintiff Allison Rosalinda Puac

 

Defendants have agreed to pay Plaintiff Allison Rosalinda Puac $130,000.00 to settle her claims in lieu of a trial on the merits.  Of the settlement amount, $60,542.34 will be used to pay Allison Rosalinda Puac’s attorney’s fees and other litigation costs and expenses, leaving her $69,457.66.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payments to be made: $54,611.38 to be paid on 12/24/2032 and $69,790.23 to be paid on 12/24/2039.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

4.         Plaintiff Anthony Santos Puac

 

Defendants have agreed to pay Plaintiff Santos Puac $130,000.00 to settle his claims in lieu of a trial on the merits.  Of the settlement amount, $60,542.34 will be used to pay Santos Puac’s attorney’s fees and other litigation costs and expenses, leaving him $69,457.66.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payments to be made: $51,197.36 to be paid on 3/9/2031 and $65,508.49 to be paid on 3/9/2038.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

5.         Plaintiff Erik Puac

 

Defendants have agreed to pay Plaintiff Erik Puac $131,000 to settle his claims in lieu of a trial on the merits. Of the settlement amount, $61,008.05 will be used to pay Erik Puac’s attorney’s fees and other litigation costs and expenses, leaving him $69,991.95.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payment to be made: $45,238.47 to be paid on 6/27/2027 and $57,992.52 to be paid on 6/27/2034.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

6.         Plaintiff Cesar Ethen Cardona Palacios

 

Defendants have agreed to pay Plaintiff Cesar Ethen Cardona Palacios $130,000.00 to settle his claims in lieu of a trial on the merits.  Of the settlement amount, $60,542.34 will be used to pay Cesar Ethen Cardona Palacios’ attorney’s fees and other litigation costs and expenses, leaving him $69,457.66.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payments to be made: $51,872.56 to be paid on 7/19/2031 and $66,351.71 to be paid on 7/19/2038.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

7.         Plaintiff Euddy Daniel Florida

 

Defendants have agreed to pay Plaintiff Euddy Daniel Florida $50,000 to settle his claims in lieu of a trial on the merits.  Of the settlement amount, $23,285.51 will be used to pay Euddy Daniel Florida’s attorney’s fees and other litigation costs and expenses, leaving him $26,714.49.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payment to be made: $37,538.38 to be paid on 11/24/2029.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

9.         Plaintiff Janet Joselyn Florida

 

Defendants have agreed to pay Plaintiff Janet Joselyn Florida $120,000 to settle her claims in lieu of a trial on the merits.  Of the settlement amount, $55,885.240 will be used to pay Janet Joselyn Florida’s attorney’s fees and other litigation costs and expenses, leaving her $64,114.76.  Petitioner requests that these sums be in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payment to be made: $41,143.97 to be paid on 4/21/2027 and $52,777.12 to be paid on 4/21/2034.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

 

8.         Plaintiff Maria Elizabeth Florida

 

Defendants have agreed to pay Plaintiff Maria Elizabeth Florida $130,000.00 to settle her claims in lieu of a trial on the merits.  Of the settlement amount, $60,542.34 will be used to pay Maria Elizabeth Florida’s attorney’s fees and other litigation costs and expenses, leaving her $69,457.66.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payments to be made: $53,050.53 to be paid on 7/19/2032 and $67,816.11 to be paid on 7/19/2039.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

10.       Plaintiff Chantal Esmeralda Velasquez

 

Defendants have agreed to pay Plaintiff Chantal Esmeralda Velasquez $120,000 to settle her claims in lieu of a trial on the merits.  Of the settlement amount, $55,885.24 will be used to pay Chantal Esmeralda Velasquez’s attorney’s fees and other litigation costs and expenses, leaving her $64,114.76.  Petitioner requests that these sums be deposited in a single-premium deferred annuity in one or more financial institutions in this state, subject to withdrawal only upon the court’s authorization, with the following guaranteed lump sum payment to be made: $37,840.95 to be paid on 1/18/2025 and $48,746.89 to be paid on 1/18/2032.  The chosen institution is Metlife Assignment Company, Inc., funded by an annuity contract issued by Metropolitan Tower Life Insurance Company.

 

CONCLUSION

 

Having reviewed the petition and supporting material, the court determines that the settlements are reasonable and in Plaintiffs’ best interests.  The petitions are verified and contain full disclosure of all information that has any bearing upon the reasonableness of the compromises.  (Cal. Rules of Court, rule 7.950.)  The declarations establish that each guardian ad litem appears to understand and agree to the settlement on behalf of their child and the court will confirm that at the hearing. While the legal fees and related expenses are on the high side (approaching 50% of the gross settlement for the minors and somewhat exceeding that for all Plaintiffs), counsel represented the Plaintiffs on a contingent fee basis and were responsible for the litigation expenses. The litigation expenses paid by Plaintiffs’ counsel totaled about $400,000 (Grant K. Riley Declaration ¶27) The nature of the agreement and fees to be charged were explained to each guardian. In addition, the petition and supporting material explain the substantial litigation effort that went into the case and the nature of the expenses. (See Riley Declaration ¶¶ 28 et seq.) Accordingly, the petitions are granted.

 

[1] On February 21, 2017, Plaintiffs filed an Amendment to Complaint identifying MF Buildings, Inc. as the true name of MF Property Management.  Although the Amendment to Complaint identifies the business as “MF Buidlings, Inc.” Defendants recognized that the listing of the true name was a typo and Plaintiffs intended to list “MF Buildings, Inc.” (See 5/24/17 Order.)