This matter is on calendar for the motion by Erik L. Peterson of Bostwick & Peterson LLP to be relieved as counsel for plaintiff Roberto Parra. However, attorney Peterson represents both Roberto Parra (who has sued for medical malpractice) and Ma Carmen Gutierrez (who has sued for loss of consortium). The supporting declaration’s reference to “clients” and “plaintiffs” suggests that attorney Peterson is seeking to withdraw as counsel for both Plaintiffs but the Notice of Motion is directed only to Roberto Parra and there is no accompanying Motion addressed to Ma Carmen Gutierrez. As a result, Cal. R. Ct. 3.1362(a) and due process require that the Court construe this as a motion to withdraw from representing Roberto Parra only.
The Motion is not accompanied by a proof of service. Although there has been no appearance by any defendant (and therefore no defendant is required to receive notice of this Motion), attorney Peterson was required to file a proof of service establishing timely service on his client of “[t]he notice of motion and motion, the declaration, and the proposed order.” Cal. R. Ct. 3.1362(d).
The declaration filed in support of the Motion checks the box that the attorney has served the client by mail at the client’s last known address (rather than the box which states that the attorney has personally served the client). MC-052 ¶ 3. The statement in the mandatory form satisfies the requirement of Cal. R. Ct. 3.1362(d)(1), which states that if the notice is served on the client by mail under CCP § 1013 “it must be accompanied by a declaration stating facts that either”: 1) it is the current residence or business address of the client or; 2) it is the last known residence or business address and the attorney has been unable to locate a more current address after making reasonable efforts to do so within 30 days before filing the Motion. But this statement in MC-052 ¶ 3 does not displace the requirement of a proof of service or satisfy the requirements of a proof of service. CCP § 1013a requires an affidavit which sets forth, among other things, “the exact title of the document served and filed,” the name and address of the person making the service,” the date and place of deposit in the mail or placed for collection and mailing, and that the envelope was sealed and deposited in the mail with the postage prepaid.
Also, in direct conflict with the declaration by attorney Peterson, the [Proposed] Order submitted with the Motion checks the box which states that the attorney has “personally served the client with papers in support of this motion” rather than the box stating that the attorney served the client by mail. MC-053 ¶ 3. Furthermore, attorney Peterson improperly did not fill in ¶ 6 of the [Proposed] Order, which would set forth the client’s current or last known address and telephone number (MC-053 ¶ 6) so there is no way for the court or the defendants (once served) to contact Roberto Parra upon the termination of attorney Peterson’s representation.
The Motion is therefore DENIED without prejudice.
Attorney Peterson shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).
This matter is on calendar for the hearing on Petitioner S.F.C. Mamba Tree, LLC’s (“Petitioner’s”) Petition for Approval for Transfer of Structured Settlement Payment Rights by and between Petitioner and Christina Fiel (“Transferor”) pursuant to Cal. Ins. Code (“IC”) § 10134 et seq.
The court is denying the Petition without prejudice for the reasons set forth below.
According to the Petition, Transferor (on information and belief, a 25 year old resident of Sonoma County), through her guardian ad litem, entered into an agreement for the settlement of a claim for damages arising in connection with a wrongful death claim, American General Assignment Corporation is the structured settlement’s Obligor (as defined by IC 10134(k)), and American General Life Insurance Company is the Annuity Issuer, having issued the insurance contract used to fund the structured settlement payment obligations of the Obligor. Petition ¶¶ 2-4; 6.
According to the Petition, the underlying settlement provides for 324 monthly payments of $62.73 each, beginning August 15, 2019 through and including July 15, 2046 with a 3% annual increase each August; and 215 monthly life-contingent payments of $2,427.26 each beginning August 15, 2046 through and including June 15, 2064 with a 3% annual increase each August. Petition ¶ 8. Transferor has agreed to sell the payments pursuant to a Transfer Agreement (Ex. A) to Catalina Structured Funding Inc., who in turn assigned its rights to Petitioner (Petition ¶¶ 8, 9 & Ex. B) for a total net payment of $25,382.44.
The Transfer Agreement (Petition Ex. A, as updated per the July 10, 2019 Notice, Ex. B) and the accompanying Disclosure (Petition Ex. C) provide that the future payments being sold total $708,627.31 and the discounted present value of those future payments (using the federal discount rate of 2.8%) is $263,771.04. This equates with an effective equivalent interest rate of 10.91% per year and a quotient (obtained by dividing the net payment by the discounted present value of the payments) of 9.62%.
There is no proof of service of the Petition or Notice of Hearing on file. Thus, Petitioner has not established that the documents required to be filed with the attorney general pursuant to IC § 10139 have been filed or that service of the documents required to be served pursuant to IC §10139.5(f)(2)(A)-(L) was effectuated on all interested parties as defined by IC § 10134(g) (i.e. the Transferor, the Obligor, and the Annuity Issuer). Although Petitioner filed a Notice of Declaration of Christina Fiel (“Fiel Decl.”) and Statutorily Executed Transfer Agreement (the “Updated Transfer Agreement”) on July 10, 2019, the proof of service attached to that Notice document states only that it—and not the earlier filed Petition or Notice of Hearing—was served by mail on July 10 on the Department of Justice, Transferor, Obligor and Annuity Issuer. Thus, that proof of service does not comply with IC § 10139.5(f)(2)(I)’s requirement of the filing of a proof of service “showing compliance with the notification requirements of this section.”
But even if a proof of service were proffered showing proper and timely filing with the attorney general of the Petition pursuant to IC § 10139 (i.e. “[a]t the time of filing a petition”) and proper service of the Petition and Notice of Hearing on all interested parties in accordance with IC § 10139.5(f) (i.e. not less than 20 days prior to the scheduled hearing), the Motion would be denied for failure to provide sufficient evidence, even taking into consideration the recently filed and served Fiel Declaration. See IC § 10139.5(d) (“With respect to the information required to be included in every petition for approval of a transfer of structured settlement payment rights pursuant to paragraphs (2), (3), (4), (5), and (6) of subdivision (c), that information shall be deemed to be included in the petition if it is provided at the scheduled hearing on the proposed transfer through oral testimony or documentary evidence filed with the court and made a part of the record consistent with the rules of evidence and procedure.”)
The Petition makes repeated reference to a “Declaration of Factoring Company Representative filed in this matter” (Petition ¶ 18. A, D, E, F), which would purportedly attach a copy of the annuity contract, the qualified assignment agreement, and/or the underlying structured settlement agreement, if available. No such Declaration was ever filed, and the Fiel Declaration does not attach a copy of the underlying structured settlement agreement or annuity contract or address their unavailability. Pursuant to IC § 10139.5(f)(2)(H), if any such agreement is not available, Petitioner is required to establish to the Court’s satisfaction that “reasonable efforts to locate and secure a copy have been made.” As a result, even if a proof of service were filed, the Petition lacks information required by IC § 10139.5(c).
Moreover, there is insufficient evidence for the Court to make the findings required for approval as provided in IC § 10139.5(a) and (b). Even though Transferor indicates that she has completed previous transactions with the same goal as the present transaction—to obtain the down payment to purchase a home (Fiel Decl. ¶¶ 6, 7)—she does not describe the timing and size (IC § 10139.5(b)(10)) or the financial terms of those transactions, or whether she attempted to complete other transactions which were denied (IC § 10139.5(11), (12)). It is also unclear whether this proposed transfer represents the last portion of her future payments, or whether she has other payment rights. IC § 10139.5(b)(4). Transferor’s declaration also only describes one portion of the payment rights being transferred (the substantial life-contingent payments which begin in 2046), so it is unclear that Transferor understands that she is also transferring her right to receive the 324 monthly payments beginning on August 15, 2019 of $62.73 each, with a 3% annual increase each August. Fiel Decl. ¶¶ 8-10.
Accordingly, the Petition is DENIED.
Petitioner’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).