Petition to Approve Compromise of Pending Action of Minor (Judge Robert A. Dukes)


Case Number: BC552609??? Hearing Date: May 31, 2016??? Dept: O

Cho v. Rowland Unified School District (BC552609)

Petitioner Sang Cho?s PETITION TO APPROVE COMPROMISE OF PENDING ACTION OF MINOR

Respondent: Attorney David Ring by Objection (filed LATE)

TENTATIVE RULING

Petitioner Sang Cho?s petition to approve compromise of pending action of minor is GRANTED.

An enforceable settlement of a minor’s or incompetent’s claim can only be consummated with court approval. (Prob.C. ?? 2504, 3500, 3600 et seq.; CCP ? 372.) For this purpose, a petition for approval must be presented to the court. Until it is granted (signed), there is no final settlement. Any settlement agreement therefore is voidable by the minor’s guardian ad litem. (Scruton v. Korean Air Lines Co., Ltd. (1995) 39 CA4th 1596, 1603-1605.)

The Probate Code, ? 3600, et seq., governs how the settlement proceeds are to be paid. Under ? 3601, the Order shall approve payment of reasonable expenses from the settlement. Section 3601(a) provides:

The court making the order or giving the judgment referred to in Section 3600, as a part thereof, shall make a further order authorizing and directing that such reasonable expenses (medical or otherwise and including reimbursement to a parent, guardian, or conservator), costs, and attorney?s fees, as the court shall approve and allow therein, shall be paid from the money or other property to be paid or delivered for the benefit of the minor or incompetent person.

(1) In all cases under Code of Civil Procedure section 372 or Probate Code sections 3600-3601, unless the court has approved the fee agreement in advance, the court must use a reasonable fee standard when approving and allowing the amount of attorney’s fees payable from money or property paid or to be paid for the benefit of a minor or a person with a disability. (2) The court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor or person with a disability and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made, except where the attorney and the representative of the minor or person with a disability contemplated that the attorney’s fee would be affected by later events. (CRC 7.955(a).)

Petitioner moves for approval of compromise of minor, Youngje Cho for $10,000,000. The compromise appears fair and reasonable. Attorneys fees total $3,000,000, and costs total $171,667.50, and are reasonable.

Former Plaintiff?s counsel objects to the compromise because his fees (alleged to be $30,000.00) and costs (alleged to be $5,894.72) were not included in the application. However, an attorney’s lien is not created by the mere fact that an attorney has performed services in a case. An attorney’s lien is created only by an attorney fee contract with an express provision regarding the lien or by implication in a retainer agreement that provides the attorney will be paid for services rendered from the judgment itself. AFTER THE CLIENT OBTAINS A JUDGMENT, THE ATTORNEY MUST BRING A SEPARATE, INDEPENDENT ACTION AGAINST THE CLIENT to establish the existence of the lien, to determine the amount of the lien, and to enforce it. (Mojtahedi v. Vargas (2014) 228 Cal. App. 4th 974, 978.)

Aside from filing an objection, Attorney Ring has not submitted any legal authorities nor requested that this court take any action relating to the minor?s compromise.

Accordingly, petition is GRANTED. The court orders that attorney?s fees and costs remain in the client trust account until the attorney?s fees dispute is resolved.