In the Matter of Melody L. Lozano and Edgar M. Gomez

Civ. Proc., Sec. 583.360, subd. (a).) "The requirements of [Section 583.310 to 583.360] are mandatory and are not subject to extension, excuse, or exception except as expressly provided by statute." (Code Civ. Proc., Sec. 583.360, subd. (b).)

Discussion

Zha argues that William Loo failed to bring the action to trial within five years. The court disagrees.

As stated above, a plaintiff must generally bring an action to trial within five years, excluding the time when the court's jurisdiction was suspended, when there was a stay in the action, or when trial was impossible, impracticable, or futile. (See Code Civ. Proc., Sec.Sec. 583.310; 583.340.)

Here, William Loo filed his Complaint on October 2, 2019. (See W. Loo Compl., p. 1.)

William Loo obtained an entry of default against Zha on March 5, 2020, but the court set aside the entry of default and vacated the default judgment on May 14, 2025. (See 3/5/2020 CIV-100, p. 1, entering default against Zha; see also 5/14/2025 Order Re: Court's Final Tentative Ruling, pp. 6-8, setting aside the entry of default and vacating the default judgment.)

Zha filed this motion to dismiss on July 28, 2026. (See Mot. Dismiss, p. 1.)

Bringing the action to trial was impracticable and futile between the date the court entered default against Zha to the date the court set aside the entry of default and vacated the default judgment.

In other words, to calculate the five-year statutory period for timely bringing the action to trial, the court counts the time between the date the Complaint was filed to the date William Loo obtained the entry of default against Zha plus the time between the date the court vacated the default judgment to the date Zha filed the motion.

The time between the date William Loo filed the Complaint to the date William Loo obtained the entry of default was 155 days.

The time between the date the court set aside the entry of default and vacated the default judgment to the date Zha filed the motion was 440 days.

Excluding the time when bringing the action to trial was impracticable or futile, only one year and 230 days passed before Zha filed this motion to dismiss for failure to bring the action to trial.

Thus, the court finds that Loo did not fail to bring this action to trial in a timely manner under Sections 583.310 and 583.340.

Therefore, the motion to dismiss based on the failure to timely bring the action to trial is DENIED.

CONCLUSION

For these reasons, the motion for leave to file first amended complaint is GRANTED. Plaintiff William Loo is ORDERED to FILE SEPARATELY the proposed AMENDED COMPLAINT. The motion to dismiss is DENIED.

Ailyn Guardado's Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Plaintiff/Claimant Melody L. Lozano, a Minor Respondent: NO OPPOSITION

Petitioner Ailyn Guardado's Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Plaintiff/Claimant Edgar M. Gomez, a Minor Respondent: NO OPPOSITION

TENTATIVE RULING

Petitioner Ailyn Guardado's Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Plaintiff/Claimant Melody L. Lozano, a Minor is GRANTED.

Petitioner Ailyn Guardado's Petition for Approval of Compromise of Claim or Action or Disposition of Proceeds of Judgment for Plaintiff/Claimant Edgar M. Gomez, a Minor is GRANTED.

BACKGROUND

This is a wrongful death action. Defendant Lopez De Ramirez Family Child Care, a childcare business, allegedly operates in a residential property owned by defendants Mirna Ramirez, Gilbert Ramirez, and Ramirez Family Trust and inhabited by defendants William Ramirez and Melissa Ramirez.

On October 1, 2022, Mirna Ramirez, Gilbert Ramirez, William Ramirez, Melissa Ramirez, and Ramirez Family Living Trust (collectively, the Ramirez Family) allegedly hosted a party in the backyard of Lopez De Ramirez Family Child Care.

The Ramirez Family allegedly invited and hosted children who attended the childcare and their families, including plaintiff Andrew Lozano (aka Estate of Andrew Lozano) and his minor children, plaintiffs/claimants Melody L. Lozano and Edgar M. Gomez (collectively, Claimants), and other guests, including defendant Doe Matt (Matt), Melissa Ramirez's romantic partner, and Does 2 through 10.

The Ramirez Family allegedly provided an unrestricted open bar, and Matt allegedly drank to excess.

Matt allegedly attacked Andrew Lozano until other guests intervened.

Matt and Does 2 through 10 (collectively, the Doe Defendants) allegedly waited in the front yard of Lopez De Ramirez Family Child Care for Andrew Lozano, Melody L. Lozano, and Edgar M. Gomez (the Lozano Family) left the party.

The Ramirez Family allegedly knew that the Doe Defendants intended to harm the Lozano Family but failed to warn them.

When the Lozano Family left the party, the Doe Defendants allegedly yelled and pointed firearms at them.

As the Lozano Family fled, Doe Defendants allegedly fatally shot Andrew Lozano.

On May 23, 2025, the Lozano Family filed the Complaint.

On September 5, 2025, the Lozano Family filed the operative Amended Complaint, alleging causes of action for (1) assault and battery, (2) wrongful death by intentional conduct, (3) wrongful death by negligence, and (4) negligent infliction of emotional distress.

On April 30, 2026, the Lozano Family dismissed Matt.

On June 3, 2026, the Lozano Family dismissed Lopez De Ramirez Family Child Care.

On June 9, 2026, the Lozano Family dismissed Estate of Andrew Lozano.

On June 12, 2026, the remaining parties informed the court that they settled the case.

On July 24, 2026, petitioner Ailyn Guardado (Guardado), the mother of Claimants, filed these petitions for approval of minor's compromise, which are unopposed.

This case is set for an order to show cause re: dismissal (settlement) and a hearing on the petitions on August 26, 2026.

ANALYSIS

Guardado seeks the court's approval of a settlement reached between the Lozano Family and the Ramirez Family.

For the following reasons, the petitions are GRANTED.

Legal Standard

An enforceable settlement of a minor's or incompetent's claim can only be consummated with court approval. (Prob. Code, Sec.Sec. 2504, 3500, 3600 et seq.; Code Civ. Proc., Sec. 372.)

For this purpose, a petition for approval must be presented to the court, and until it is granted, there is no final settlement. (Scruton v. Korean Air Lines Co. (1995) 39 Cal.App.4th 1596, 1603-1606.)

Any settlement agreement therefore is voidable by the minor's guardian ad litem. (Id. at 1606.)

Probate Code section 3600 et seq. governs how the settlement proceeds are to be paid.

Pursuant to Probate Code section 3601, the order shall approve payment of reasonable expenses from the settlement as follows: 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. (Prob. Code, Sec. 3601, subd. (a).)

In cases pursuant to Probate Code section 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." (Cal. Rules of Court, rule 7.955(a)(1).)

In doing so, "[t]he 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." (Cal. Rules of Court, rule 7.955(a)(2).)

Discussion

Pursuant to the settlement agreement reached between the parties, the Ramirez Family agrees to pay a total of $300,000.00, including $150,000.00 to each of the Claimants. (See Pet. Re: Melody L. Lozano, P.P. 10b, 16a; see also Pet. Re: Edgar M. Gomez, P.P. 10b, 16a.)

The petitions each request that $60,000.00 be used for attorney's fees and $692.30 be used for costs. (See Pet. Re: Melody L. Lozano, P.P. 13a-13b, 16c-16d; see also Pet. Re: Edgar M. Gomez, P.P. 13a-13b, 16c-16d.)

"In determining whether to grant a guardian ad litem's petition to approve a settlement of the ward's claims, a court must determine whether it is reasonable and in the minor's best interest." (Chui v. Chui (2022) 75 Cal.App.5th 873, 899.)

Generally, courts must consider the following factors: 1) the circumstances of the accident or other incident giving rise to the litigation, particularly the facts bearing on the payor's potential liability and the minor's damages; 2) the amount of the proposed settlement; 3) how the settlement will be paid (e.g. in a lump sum or via an annuity); 4) the nature of the injury and the minor's current medical status and prognosis; and 5) the amount of attorneys' fees and other transaction costs being requested. (See, e.g., Kostakos v. Holewinski (Dec. 6, 2019, 37-2018-00029286-CU-PA-CTL) [nonpub. opn.], applying Cal. Rules of Court, rule 7.950.)

Examining attorney's fees, Guardado executed a retainer agreement with Claimants' counsel for a 40% contingency fee. (See Pet. Re: Melody L. Lozano, Attach. 17a; see also Pet. Re: Edgar M. Gomez, Attach. 17a.)

The requested attorney's fee is less than 40% of each of the Claimants' gross recovery after costs, and only 20% of the gross recovery. (See Pet. Re: Melody L. Lozano, P.P. 13a, 16a, 16c; see also Pet. Re: Edgar M. Gomez, P.P. 13a, 16a, 16c.)

Counsel's declaration includes details about their work in this litigation. (See Pet. Re: Melody L. Lozano, Attach. 13a, P.P. 1-60; see also Pet. Re: Edgar M. Gomez, Attach. 13a, P.P. 1-60.)

Considering this evidence, the court finds that the requested attorney's fees are reasonable.

Regarding litigation costs, the petitions each reflects litigation costs of $692.30. (See Pet. Re: Melody L. Lozano, P.P. 13b, 16d; see also Pet. Re: Edgar M. Gomez, P.P. 13b, 16d.)

Upon review, the court finds that the litigation costs were reasonably incurred.

The remaining $89,307.70 for each of the Claimants will be invested in a single-premium deferred annuity, subject to withdrawal only on authorization of the court. (See Pet. Re: Melody L. Lozano, P. 18b(3); see also Pet. Re: Edgar M. Gomez, P. 18b(3).)

Upon review, the court finds that the amount awarded to each of the Claimants to be reasonable and finds the disposition of the funds is proper.

Accordingly, the petitions for approval of minor's compromise are GRANTED.

CONCLUSION

For these reasons, the petitions for approval of minor's compromise are GRANTED. | Home -->)" -->