Recent Fourth District, Division Two Decision Shows How California Rule of Court 8.244(d) Works In Practice.
California Rules of Court, rule 8.244(d) provides: “If a guardian or conservator seeks approval of a proposed compromise of a pending appeal, the Court of Appeal may, before ruling on the compromise, direct the trial court to determine whether the compromise is in the minor’s or the conservatee’s best interests and to report its findings.” The next case we discuss illustrates the operation of this provision in “real time” and also demonstrates that cases can be settled even though the cause has been submitted to the appellate court for a ruling.
In Sulzmann v. Colton Joint Unified Sch. Dist., Case No. E040853 (4th Dist., Div. 2 Sept. 16, 2008) (unpublished), a disabled high school student, through her guardian ad litem, sued School District defendants for negligence in failing to perform certain life-saving measures after she collapsed on campus. As a result, disabled adult suffered brain damage and lived in a vegetative state. The trial court granted summary judgment to all defendants, and plaintiff appealed. The Fourth District, Division Two issued a tentative appellate decision, prior to argument, affirming as to some defendants and reversing as to others—with the tentative reversal encompassing the School District. (The Fourth District, Division Two is the only appellate division in the state to actually issue tentative decisions to the parties before argument.) After issuance of the tentative opinion, the parties reached a settlement and asked that the appeal be dismissed.
The Court of Appeal, on its own motion, directed the superior court to conduct a hearing and make findings that the settlement was in the best interests of the plaintiff under rule 8.244(d). The superior court found the settlement to be fair, and the appellate panel agreed. The School District agreed to pay $1.3 million. From that amount, there were deductions of $184,825 in unpaid medical charges/liens and $411,220 in unpaid attorney’s fees/expenses, leaving a remainder of $703,955—which would be used to purchase a $500,000 annuity, pay for future additional expenditures, and set up a $141,203 special needs trust.
Based on the fairness of the settlement, the Court of Appeal reversed the judgment under Code of Civil Procedure section 128(a)(8) as to School District and dismissed the appeal as to the remaining defendants.
In our August 8, 2008 post, we discussed minor’s compromises and certain fee award guidelines. This case illustrates that fees exceeding 25% of the gross settlement proceeds will be approved in certain situations. The fee awarded in Sulzmann was about 31.6%, reflecting the hard fought nature of the overall litigation and plaintiff’s pending appellate win against a governmental entity.