Franco, et al. v. Nicole, M.D., et al.

(36) Tentative Ruling

Re: Franco, et al. v. Nicole, M.D., et al. Superior Court Case No. 24CECG00961

Hearing Date: August 18, 2026 (Dept. 502)

Motion: Compromise of Claim of Minor

Tentative Ruling:

To deny without prejudice. In the event that oral argument is requested minor is excused from appearing.

Explanation:

Attorney Fees

The court must consider the terms of any fee agreement between the attorney and the representative of the minor or disabled person and must evaluate the agreement based on the facts and circumstances at the time the agreement was made. (Cal. Rules of Court, Prob. Rule 7.955(a).) The court may allow attorney fees under a valid contingency fee agreement so long as the fees are reasonable. (Cal. Rules of Court, Prob. Rule 7.955(a), Advisory Comm. Comment; see Gonzalez v. Chen (2011) 197 Cal.App.4th 881, 885-886 [lawyer not automatically entitled to maximum MICRA fees as provided in contingency agreement because court must apply factors stated in Cal.

Rules of Court, Prob. Rule 7.955].) A petition seeking fees must be supported by a declaration by the attorney that addresses the factors set forth above that are relevant to the fee request. Cal. Rules of Court, Prob. Rule 7.955(c).) Similarly, reasonable expenses and court costs to be paid out of the settlement proceeds must be approved by the court. (Prob. Code § 3601.)

Counsel requests for $2,188,181.11, which appears to be 33.15% of the gross recovery from the minor. This amount is in excess of that agreed upon in the attorney/client fee agreement attached to the petition. (See Attachment 17a.) The fee agreement provides that the client agrees to pay ... “33% of the net recovery...” (Attachment 17a, ¶ 4.) It further indicates that the client’s net recovery is the balance following payment of outstanding liens. (Id., at ¶ 5.) This amount is also in excess of the fee limitations set forth by the Medical Injury Compensation Reform Act (MICRA). (Bus. & Prof. Code, § 6146.)

Even if the court assumes that counsel calculated its figures based on the total settlement including the parents’ settlement amount, $6,850,000, counsel’s requested fees are in excess of 33%, since counsel also seeks $83,333.33 from the parents’ settlement.

Furthermore, the attorney declaration accompanying the petition does not reveal any information that would support a fee of 33.15% of the settlement. At least according to counsel’s fee agreement, the increase in the fee was due solely to having filed the 10

lawsuit as opposed to participating in arbitration. There is no information providing the amount of time counsel spent litigating this case. Nor is there anything to indicate that there was any novelty or difficulty presented in the action or that the settlement is a particularly good result for the minor who suffered significant injuries.

Special Needs Trust

Petitioner and Guardian ad Litem proposes to deposit $580,114.46 of the net settlement into an annuity, set to make payments to the proposed special needs trust, and for the remaining $3,700,000.03 to be transferred into the proposed special needs trust pursuant to Probate Code section 3604. The court generally approves of this arrangement (assuming the figures are adjusted following recalculation of attorney fees as mentioned above), since this will ensure that receipt of this money will not disqualify the minor from receiving the public benefits he may need due to his disabilities.

However, petitioner must show that she has first filed, with the Probate Department, a Petition under Probate Code sections 3600-3613 to establish and fund the special needs trust. The Probate Court is better suited to confirm that the Trust complies with California Rules of Court, Rule 7.903, to ensure that the notice required by Probate Code section 3611, subdivision (c) is given, and to provide for the ongoing court supervision of the trust.

Once the probate petition has been granted, petitioner can then petition this court for approval of the compromise of the disabled adult’s claim.

Pursuant to California Rules of Court, Rule 3.1312 and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 8-17-26. (Judge’s initials) (Date)

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