Judge Anne Richardson, Case Number: 22STCV19207, Date: 2023-12-18 Tentative Ruling

Judge: Anne Richardson, Case: 22STCV19207, Date: 2023-12-18 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call.

Case Number: 22STCV19207 Hearing Date: April 2, 2024 Dept: 40

Superior Court of California

County of Los Angeles

Department 40

GRESHAM LOMBARD,

Plaintiff,

ALBEMARLE CORPORATION, a Virginia corporation, previously sued as Doe No. 12; ASHLAND OIL, INC., a Kentucky corporation, previously sued as Doe No. 19; BRASKEM AMERICA, INC., a Delaware corporation, previously sued as Doe No. 17; CHEVRON U.S.A., INC., previously and perhaps erroneously sued as CHEVRON CORPORATION, a Delaware corporation; EXXON MOBIL CORPORATION, f/k/a MOBIL OIL REFINING CORPORATION a Delaware corporation; GOODYEAR TIRE & RUBBER COMPANY, an Ohio corporation, previously sued as Doe No. 15; KANEKA NORTH AMERICA LLC, a Texas limited liability company, previously sued as Doe No. 7; KERN OIL & REFINING COMPANY, a California corporation; KINDER MORGAN LIQUIDS TERMINALS, LLC, a Delaware limited liability company, previously sued as Doe No. 2; LUBRIZOL CORPORATION, an Ohio corporation, previously sued as Doe No. 8; MARATHON PETROLEUM COMPANY LP, a Delaware limited partnership; PBF ENERGY LIMITED, a, Delaware corporation, previously sued as Doe Defendant No. 1; PHILLIPS 66 COMPANY, a Delaware corporation; SAN JOAQUIN REFINING COMPANY, INC., a California corporation; SHELL OIL PRODUCTS COMPANY LLC, a Delaware limited liability company; TOTALENERGIES PETROCHEMICALS & REFINING USA, Delaware corporation, previously sued as Doe No. 9; VALERO REFINING COMPANY - CALIFORNIA, a Delaware corporation; VOPAK NORTH MERICA, INC., f/k/a VOPAK AMERICAS, a Texas corporation, previously sued as Doe No. 22; ALLWASTE, INC., a Texas corporation, doing business as ALLWASTE ENVIRONMENTAL; ONYX INDUSTRIAL SERVICES, INC., a corporation; PHILIP SERVICES CORPORATION, doing business as PHILIPS TANK CLEANING; RUSH RESOURCES, LLC, a Texas limited liability company, successor in interest to RUSH RESOURCES, INC., a Texas corporation previously sued as Doe No. 81; TIMEC ACQUISITIONS, INC., a Delaware corporation; TIMEC COMPANY, INC., a California corporation, subsidiary of TIMEC ACQUISITIONS, INC.; TIMEC SERVICES COMPANY, INC., a Delaware corporation; ULTRAMAR, INC., a Texas corporation, previously sued as Doe No. 82; WASTE MANAGEMENT LLC, a California limited liability company; and Doe Defendants 23-80 and 83-100,

Defendants.

Case No.: 22STCV19207

Hearing Date: 4/2/24

Trial Date: N/A

[TENTATIVE] RULING RE:

Defendant Doe 7, Kaneka North America LLC’s Motion for Good Faith Settlement Determination.

I. Background

A. Pleadings

Plaintiff Gresham Lombard sues a number of Defendants pursuant to a December 20, 2023, Third Amended Complaint (TAC) alleging claims of (1) Negligence, (2) Strict Liability – Failure to Warn, (3) Strict Liability – Design Defect, and (4) Fraudulent Concealment.

The claims arise from the following allegations. From about 1990 through the early 2000s, Plaintiff Lombard worked at oil refineries and petrochemical plants in California, where Plaintiff performed shutdowns and turnarounds, painting, maintenance, construction, and other work. In doing this work, Plaintiff Lombard was exposed to crude oil, fuels, and petroleum hydrocarbon solvents, all of which contain significant concentrations of benzene. This exposure, in turn, caused serious injuries to Plaintiff Lombard’s internal organs, including myelodysplastic syndrome, thus necessitating hospitalization, surgeries, chemotherapy, and other treatments for Plaintiff Lombard, with a bone marrow transplantation now being medically necessary as treatment.

B. Motion Before the Court

On March 1, 2024, Defendant Doe 7, Kaneka North America LLC (Kaneka) filed a motion for determination of good faith settlement in relation to a settlement reached between it and Plaintiff Lombard.

Kaneka’s moving papers—comprised of a notice of motion and motion and a proposed order—attach proofs of service indicating that electronic service was effected on March 1, 2024 on various interested parties to be named in an attached service list, but the moving papers fail to include the referenced service lists.

No opposition, reply, or notice of non-opposition appear in the record.

Defendant Kaneka’s motion is now before the Court.

II. Motion for Determination of Good Faith Settlement: TENTATIVELY GRANTED [on condition of proof of service].

A. Legal Standard

Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt is entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors. (Code Civ. Proc., § 877.6, subd. (a)(1).)

In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. (Code Civ. Proc., § 877.6, subd. (a)(2).) The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. (Code Civ. Proc., § 877.6, subd. (a)(2).) The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service, with proof of service to be filed with the court. (Code Civ. Proc., § 877.6, subd. (a)(2).) Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. (Code Civ. Proc., § 877.6, subd. (a)(2).) If none of the nonsettling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement. (Code Civ. Proc., § 877.6, subd. (a)(2).) However, this subsection does not apply to settlements in which a confidentiality agreement has been entered into regarding the case or the terms of the settlement. (Code Civ. Proc., § 877.6, subd. (a)(2).)

The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. (Code Civ. Proc., § 877.6, subd. (b).)

A party asserting lack of good faith in settlement has the burden of proving lack of good faith. (Code Civ. Proc., § 877.6, subd. (d).) The objecting party may carry its burden by demonstrating that the settlement is so far “out of the ballpark” in relation to various factors, including:

(1) A rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability;

(2) The amount paid in settlement;

(3) The allocation of settlement proceeds among plaintiffs;

(4) A recognition that a settlor should pay less in settlement than it would if it were found liable after a trial;

(5) The financial conditions and insurance policy limits of settling defendants; and

(6) The existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants.

(Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499-500.)

A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Code Civ. Proc., § 877.6, subd. (c); Britz, Inc. v. Dow Chemical Co. (1999) 73 Cal.App.4th 177, 180 (Britz) [finding a good faith settlement determination discharges indemnity claims by other tortfeasors, whether or not named as parties to the action, provided they were given notice and an opportunity to be heard].)

B. Analysis

1. Notice of Settlement, Application for Good Faith Determination, Proposed Order, and Service

Here, while the motion for good faith determination and its proposed order attach proofs of service, these proofs of service do not attach a service list clarifying the interested parties that were served. (Mot., Proof of Service; Mot., Proposed Order, Proof of Service.) The record is thus unclear as to whether proper service of the notice, application, and proposed order has been effected on “all parties.” (Code Civ. Proc., § 877.6, subd. (a)(2).)

While the points and authorities argue that proper service was effected as shown by the attached declaration from counsel and proof of service (Mot., pp. 11-12), the declaration from counsel only relates the procedural history, settlement, and evidentiary facts supporting a determination of good faith, while the proof of service fails to attach the service list referenced the proof of service. (Mot., Kaneka Decl., ¶¶ 1-19; Mot., Proof of Service; see Mot., Proposed Order, Proof of Service.)

Therefore, prior to determining that these mandatory statutory requirements have been satisfied—i.e., notice with an application and proposed order plus service—the Court must receive the service lists to confirm that service was effected on “all parties” on March 1, 2024, via electronic service through “File N Serve,” as shown in the proofs of service for the moving papers. (Code Civ. Proc., § 877.6, subd. (a)(2); see Mot., Proof of Service; Mot., Proposed Order, Proof of Service.)

2. Required Information in Application

As explained by the moving papers’ introduction: “The basis, terms and amount of the settlement are as follows: Payment of $10,000.00 by Defendant no later than 30 days after full execution of the Settlement Agreement (‘Agreement’), to the Metzger Law Group of one or more negotiable checks in the total sum of $10,000.00, made payable to the Metzger Law Group Attorney-Client Trust Account, and to no other persons. This condition may only be waived by Plaintiff. The Agreement is subject to the Court approving this settlement as a Good Faith Settlement.” (Mot., p. 4; see Mot., Sipes Decl., ¶ 15 [same information and referencing an Exhibit D as a correct copy of the settlement agreement but failing to attach that exhibit].)

This mandatory statutory requirement is therefore satisfied. (Code Civ. Proc., § 877.6, subd. (a)(2).)

3. Challenges by Non-Settling Defendants

Here, no challenges to this motion were filed by the non-settling Defendants, and more than 25 days have elapsed since the purported March 1, 2024, service.

The Court may thus approve the settlement, provided that service is confirmed, as discussed above in Section II.B.1. (Code Civ. Proc., § 877.6, subd. (a)(2).)

4. Confidentiality Agreement

Here, the proposed settlement does not involve a completely confidential settlement for which even the terms of the settlement cannot be disclosed. (See Section II.B.2. discussion supra.)

This mandatory statutory requirement is therefore satisfied. (Code Civ. Proc., § 877.6, subd. (a)(2).)

5. Tech-Bilt Factors

Here, the Court adopts the discussion of the Tech-Bilt factors in the moving papers to further determine that no bad faith appears to arise from this settlement. (Mot., pp. 5-8 at § II, 9-11 at § IV; Mot., Kaneka Decl., ¶¶ 1-18.)

The Court notes that the Tech-Bilt factors are the applicable standard for challenging the good faith of a settlement—specifically, by showing bad faith—and, in making that showing, the burden lies with the party challenging the determination of good faith. (Code Civ. Proc., § 877.6, subd. (d).) Here, no challenge appears in the record from any of the non-settling Defendants (see Section II.B.3. discussion supra), thus undercutting the need for a Tech-Bilt discussion. (Code Civ. Proc., § 877.6, subd. (a)(2).) However, the Court notes that service must be confirmed prior to this determination having any effect.

6. Final Determination

While Defendant Kaneka’s motion is facially meritorious, the Court must confirm service before making a final determination on the good faith of the settlement reached between Defendant Kaneka and Plaintiff Lombard.

V. Conclusion

Defendant Doe 7, Kaneka North America LLC’s Motion for Good Faith Settlement Determination is tentatively GRANTED on the condition of proof of proper service on all parties on March 1, 2024.

If service is shown to have been so effected, all other joint tortfeasor or co-obligor of Defendant Kaneka North America LLC shall be barred from any further claims against Defendant Kaneka North America LLC for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Code Civ. Proc., § 877.6, subd. (c); Britz, supra, 73 Cal.App.4th at p. 180.)