Rosa Munoz Hurtado et al vs Attilio Macrito, DO et al

Analysis: Relevant here, "[t]he ... guardian ad litem so appearing for any ... person who lacks legal capacity to make decisions ... shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward or conservatee, and to satisfy any judgment or order in favor of the ward or conservatee or release or discharge any claim of the ward or conservatee pursuant to that compromise." (Code Civ. Proc., Sec. 372, subd. (a)(3).)

Though Code of Civil Procedure section 372 "empowers a guardian ad litem to settle the incapacitated party's claim[,] ... the settlement is not final or binding until the agreement is approved by the trial court in which the claim was brought." (Carachure v. Scott (2021) 70 Cal.App.5th 16, 31.)

"A petition for court approval of a compromise ... under Code of Civil Procedure section 372 must comply with [California Rules of Court], rules 7.950 or 7.950.5, 7.951, and 7.952." (Cal. Rules of Court, rule 3.1384(a).) Those rules require the petition to be submitted on "a completed Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Minor or Person With a Disability (form MC-350)"; to be verified by the petitioner; and to "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; Barnes v. Western Heritage Ins. Co. (2013) 217 Cal.App.4th 249, 256, fn. 4.)

"If the petitioner has been represented or assisted by an attorney in preparing the petition for approval of the compromise of the claim or in any other respect with regard to the claim, the petition must disclose" the information set forth in rule 7.951. (Cal. Rules of Court, rule 7.951(1)-(6).)

"The person petitioning for approval of the compromise of the claim on behalf of the minor or person with a disability and the minor or person with a disability must attend the hearing on the petition unless the court for good cause dispenses with their personal appearance." (Cal. Rules of Court, rule 7.952(a).)

The Amended Petition, which the court understands to be the operative petition, is submitted on the required form, is verified by Ruiz, and states that Ruiz is the granddaughter of R Hurtado who is 76 years of age and a person with a disability. (Amended Petition, P.P. 1 & 2(b), (c).) The Amended Petition also states that R Hurtado does not have a conservator of the estate, and that R Hurtado's claim will be compromised or settled without a trial. (Amended Petition, P.P. 2(f) & 3(b).)

The Amended Petition describes the events that occurred on January 22, 2023, involving R Hurtado, J Hurtado, Macrito, and Pueblo. As described in the petition, "[t]his is a catastrophic medical negligence case arising from the failure to timely identify and report an acute basilar artery clot on January 22, 2023, after [R] Hurtado presented to St. John's Regional Medical Center and underwent head CT imaging that defendant radiologist ... Macrito, whose group is Pueblo ..., interpreted as showing in 'no acute findings. '" (Amended Petition, P. 5.)

R Hurtado suffered "an acute ischemic brainstem stroke involving the left midbrain and pons with right hemiplegia, later-confirmed occlusion of the distal basilar artery, dysphagia requiring PEG placement, profound functional dependence, and permanent neurologic injury that has left her nonambulatory, severely dysarthric, contractured, incontinent, and dependent on others for essentially every activity of daily life." (Amended Petition, P. 6.)

R Hurtado received care and treatment for the injuries described in the Amended Petition and above, which included examination, hospitalization, imaging and laboratory studies, prescriptions at St. John's Regional Medical Center, in-home health services from GMM Home Health Care, neurology consultation and treatment by Behzad Ourmazdi, M.D., and speech and occupational therapy. (Amended Petition, P.7.)

R Hurtado has not recovered completely from the effects of the injuries described in the Amended Petition and above, and the permanent injuries from which R Hurtado has not recovered include facial droop, difficulty speaking, confusion, loss of movement, loss of vision, trouble with balance and coordination, paralysis in the right side of the body, and inability to move right arm and right leg independently. (Amended Petition, P. 8(c).)

Attached to the Amended Petition is a letter (the Amos Letter) from Edwin C. Amos, M.D., (Dr. Amos) of Santa Monica Neurological Consultants dated November 8, 2025. The Amos Letter shows that Dr. Amos performed a medical evaluation of R Hurtado ostensibly on November 7, 2025, at the home of R Hurtado in Oxnard, California. (Amended Petition, attachment 8 at pdf p. 12.) At the time, R Hurtado was 74 years of age. (Ibid.)

The evaluation was attended by R Hurtado's husband and granddaughter (who the court understands are, respectively, J Hurtado and Ruiz), Drs. Sanossian and Stenehjem, and a nurse observer who audio recorded the proceedings. (Ibid.) A certified Spanish language interpreter translated the evaluation from English. (Ibid.)

The Amos Letter states that R Hurtado was admitted to the hospital on January 22, 2023, and was later found to have experienced a posterior circulation stroke which was first noted on an MRI scan of the brain. (Amended Petition, attachment 8 at pdf p. 16.) Imagining studies revealed occlusion of the basilar artery, and ischemic changes in the left posterior circulation with bilateral chronic microvascular ischemic changes. (Ibid.) R Hurtado, whose neurological deficits included right facial weakness, disconjugate extraocular movements, dysarthria, and right hemiparesis, was treated with anticoagulant therapy. (Ibid.)

The Amos Letter reports that, though R Hurtado could not, due to her status, provide her history during the evaluation conducted by Dr. Amos, she appeared to comprehend reasonably well in Spanish and at times when spoken to in English. (Amended Petition, attachment 8 at pdf p. 12.) Ruiz, who identified herself as R Hurtado's daytime caregiver, provided much of R Hurtado's history with the exception of a list of R Hurtado's current medication. (Ibid.)

Ruiz also reported to Dr. Amos that R Hurtado uses durable medical equipment; is incontinent; can chew soft solids and swallow liquids but sometimes has difficulty; that R Hurtado's medications are crushed and mixed with applesauce; and that R Hurtado can feed herself using her left hand. (Ibid.) Ruiz transfers R Hurtado from bed to wheelchair and from wheelchair to car seat when being transported in a standard vehicle, and other family members also participate in R Hurtado's home care. (Ibid.) A person is always present with R Hurtado and sleeps in a bed in R Hurtado's room (Ibid.)

Ruiz reported to Dr. Amos that R Hurtado inconsistently comprehends language in Spanish and appears to be able to communicate in Spanish but is severely dysarthric which makes it difficult to understand what R Hurtado is saying. (Amended Petition, attachment 8 at pdf p. 13.) Ruiz is not sure whether R Hurtado is reliably oriented to her situation, and believes R Hurtado's vision is impaired. (Ibid.) Ruiz further stated to Dr. Amos that R Hurtado reports right side pain, headaches, variable symptoms of dizziness which last throughout the day, and irregular sleep patterns. (Ibid.)

The Amos Letter also shows that R Hurtado was hospitalized about four or five months prior to Dr. Amos' evaluation for a diagnosis of pneumonia. (Amended Petition, attachment 8 at pdf p. 113.) R Hurtado has not recently required emergency room evaluation or treatment; has not experienced seizures; and is attended by a primary care physician, a neurologist, and other physicians. (Ibid.)

The Amos Letter lists R Hurtado's past medical, family, and social history, and indicates that Dr. Amos reviewed R Hurtado's medical records. (Amended Petition, attachment 8 at pdf pp. 13-14 & 15.) During the physical examination of R Hurtado by Dr. Amos, R Hurtado appeared afebrile; her chest was clear to auscultation bilaterally; she had a regular heart rate and rhythm without murmur; and her abdomen was soft and non-tender. (Amended Petition, attachment 8 at pdf p. 14.)

R Hurtado's right arm was held in flexion and exhibited an early contracture; her right hand was in a fisted posture with early contractures of the fingers; and the right lower extremities were in extension with foreshortening of the Achilles tendons. (Ibid.) Dr Amos' neurological examination showed that R Hurtado was alert and able to follow one-step commands variably, appeared to comprehend Spanish reasonably well, and was noted to respond at times to commands in English. (Amended Petition, attachment 8 at pdf p. 14.) R Hurtado exhibited intact right/left orientation. (Ibid.)

Serial testing of cranial nerves numbers II-XII by Dr. Amos revealed some difficulty with identifying objects in the right visual field; that extraocular movements were restricted in the vertical plane; that horizontal movements were disconjugate; that the pupils were 2-3 mm and reactive to light bilaterally; that the facial strength was symmetrical and full; and that R Hurtado was severely dysarthric and could not voluntarily protrude her tongue. (Ibid.)

The Amos Letter further reports that R Hurtado's motor tone was increased more in the right than in the left upper extremities, and strength was 1/5 in the proximal right upper extremity and 0/5 in the intrinsic muscles of the right hand. (Amended Petition, attachment 8 at pdf p. 14.) R Hurtado's right lower extremity exhibited 3/5 proximal strength in the right foot, and the left upper extremity had full strength. (Ibid.)

The diagnostic impressions of Dr. Amos include a posterior circulation stroke on January 22, 2023, with residual neurological deficits; a history of coronary artery disease with myocardial infarction; and a history of congestive heart failure, atrial fibrillation, diabetes, hypertension, hyperlipidemia, obstructive sleep apnea, pancreatitis, asthma, and a ground level fall in August 2022 with closed head trauma. (Amended Petition, attachment 8 at pdf p. 15.) Dr. Amos reports that R Hurtado has persistent neurological deficits, has reached maximum neurological improvement, and will require 24 hours per day custodial care and periodic outpatient neurological follow up for the balance of her life. (Amended Petition, attachment 8 at pdf p. 16.)

Ruiz has made a careful and diligent inquiry and investigation into the facts and circumstances of the incident or accident in which R Hurtado was injured; the responsibility for the incident or accident; and the nature, extent, and seriousness of R Hurtado's injuries. (Amended Petition, P. 9.) Ruiz understands that if the compromise proposed in the Amended Petition is approved by the court and consummated, R Hurtado will never be able to recover any more compensation from the settling defendants named in that petition if R Hurtado's injuries turn out to be more serious than they now appear. (Ibid.)

For the reasons discussed below, the Amended Petition contains discrepancies, inconsistencies, or ostensibly missing information that require correction or further explanation. For example, the Amended Petition states that, to settle the claim, Macrito and Pueblo (collectively, Defendants) have offered to pay the amount of $2.75 million to R Hurtado. (Amended Petition, P. 10(b).)

The terms of that settlement are stated in the Amended Petition as follows: "Settlement will be paid cash plus future periodic payments with the total sum cost of $2,555,000 as set forth in the attached Addendum to Settlement Agreement and Release, which states the money disbursement will be as follows: [P.] $969,123.17 payable to Brian O'Connor, Client Rosa Hurtado's Trust account for attorney fees, costs, and liens. [P.] $885,876.83 payable to Secured Futures FBO Rosa Munoz Hurtado for the initial funding of the Trust. [P.] $700,000.00 payable to MetLife Assignment Company, Inc. to fund future Periodic Payments." (Amended Petition, P. 10(c), punctuation and capitalization unchanged.)

Though the Amended Petition states that the settlement amount set forth above will be paid to R Hurtado, that amount appears to include a payment to J Hurtado in the amount of $195,000. (Amended Petition, P.P. 11(b)(1) & attachment 10(c).) attachment 8 at pdf p. 12.) The Amended Petition fails to explain or clarify this discrepancy or inconsistency.

Furthermore, because the settlement amount which Defendants have agreed to pay to R Hurtado as stated in the Amended Petition is uncertain, unclear, or appears to be lower than the amount stated and described above, there exists some question as to whether that petition fully discloses all of the information "bearing on the reasonableness" of the settlement, and whether the rights of R Hurtado have been adequately protected. (Cal. Rules of Court, rule 7.950; In re Christina B. (1993) 19 Cal.App.4th 1441, 1453 [guardian ad litem must "protect the rights of the incompetent person[]"]; Espericueta v. Shewry (2008) 164 Cal.App.4th 615, 626-627 [general discussion of information "bearing on the reasonableness of the compromise."].)

The Amended Petition and the attached "Addendum to Settlement Agreement and Release" also show that the amount of $885,876.83 will be used to fund a "Secured Futures Pooled Special Needs Trust" (the Special Needs Trust). (Amended Petition, P.P. 10(c), 18(b)(4), & attachments 10(c) & 18(b)(4).)

"If a court makes an order under [Probate Code] [s]ection 3602 or 3611 that money of a minor or person with a disability be paid to a special needs trust, the terms of the trust shall be reviewed and approved by the court and shall satisfy the requirements of this section. The trust is subject to continuing jurisdiction of the court, and is subject to court supervision to the extent determined by the court. The court may transfer jurisdiction to the court in the proper county for commencement of a proceeding as determined under Section 17005." (Prob. Code, Sec. 3604.)

Relevant here, in circumstances where "money ... is to be paid ... for the benefit of a ... person with a disability under a compromise, covenant, order or judgment, and there is no ... conservatorship of the estate of the person with a disability", Probate Code section 3610 et seq. governs the manner in which "the remaining balance of the money ... after payment of all expenses, costs, and fees as approved and allowed by the court under Section 3601) shall be paid, delivered, deposited, or invested...." (Prob. Code, Sec. 3610.)

Probate Code section 3611 states: "In any case described in Section 3610, the court making the order or giving the judgment referred to in Section 3600 shall, upon application of counsel for the ... person with a disability, order ... [P.] [a]fter a hearing by the court, that the remaining balance of any money and other property be paid to a special needs trust established under Section 3604 for the benefit of the ... person with a disability. Notice of the time and place of the hearing and a copy of the petition shall be mailed 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 at least 15 days before the hearing." (Prob. Code, Sec. 3611, subd. (c).)

The Amended Petition, including the proof of service of that petition, does not show that notice of the time and place of the hearing or a copy of the petition was mailed, at least 15 days before the hearing, to the State Director of Health Care Services, the Director of State Hospitals, and the Director of Developmental Services at the offices described in, and as required by, subdivision (c) of Probate Code section 3611. The Amended Petition also does not present any information that would indicate or suggest that an exemption from that requirement applies under the circumstances present here. (See, e.g., Prob. Code, Sec. 3604, subd. (c) [authorizing petition for an order terminating the trust under the conditions specified in that statute].)

In addition, though the Amended Petition requests an order approving the payment or transfer of the amount of $885,876.83 to the trustee of the Special Needs Trust purportedly established under Probate Code section 3604 for the benefit of R Hurtado (Amended Petition, P. 18(b)(4)), and notwithstanding whether the Amended Petition is sufficient to show that R Hurtado has a disability that substantially impairs her ability to provide for her own care and constitutes a substantial handicap (and the court present makes no findings in that regard), that petition presents no information or evidence showing that R Hurtado is likely to have special needs that will not be met without the trust[]" or why the "money to be paid to the trust does not exceed the amount that appears reasonably necessary to meet the special needs of" R Hurtado. (Prob. Code, Sec. 3604, subd. (b)(2), (3).)

The Amended Petition also does not explain, with appropriate citations to the record, why the trust instrument complies with the requirements set forth in California Rules of Court, rule 7.903, or why there exists an exemption from those requirements. That petition also shows that the Special Needs Trust was established by Secured Futures, Inc., a Pennsylvania nonprofit corporation that is also the Trustee of the Special Needs Trust. (Amended Petition, attachment 18(b)(3) at pdf p. 99.) For these reasons, there also exist some question in regard to whether the Amended Petition is sufficient to show compliance, or an exemption from compliance, with California Rules of Court, rule 7.903, including in regard to the court's ability to supervise the actions of the Trustee or whether or why the Special Needs Trust is subject to the continuing jurisdiction of the court.

Furthermore, the operative Amended Petition was filed on July 22, two days before the deadline for the filing of any opposition to that petition. For these and all further reasons discussed above, the late filing of the Amended Petition raises due process concerns.

For all reasons discussed above, the court will continue the hearing on the Amended Petition to permit Ruiz an opportunity to address, correct, or explain the issues and deficiencies or ostensible deficiencies described herein. Ruiz may address these issues or deficiencies in an appropriate supplemental brief with supporting declarations, where appropriate. The court will also authorize the filing and service of opposition any such supplemental briefing.

The court further notes that the examples provided herein are intended to be illustrative but not exhaustive. To the extent there exist additional issues or deficiencies, including inconsistencies or missing information, which are not discussed in this ruling, the court expects that, to avoid further continuances, Ruiz will address, explain, or correct those issues or deficiencies in their supplemental briefing.

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