Judge: Armen Tamzarian, Case: 21STCV04357, Date: 2023-08-15 Tentative Ruling

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Case Number: 21STCV04357    Hearing Date: March 25, 2024    Dept: 52

Defendant Dignity Community Care’s Motion for Determination of Good Faith Settlement

Defendant Dignity Community Care dba California Hospital Medical Center (Dignity) moves for an order determining good faith settlement under Code of Civil Procedure section 877.6(a).  Defendant Bryan D. Hubbard, M.D., opposes the motion.

When only some of multiple defendants alleged to be jointly liable settle a case, the settling parties may apply to the court for a determination of good faith settlement.  (CCP § 877.6(a).)  A determination of good faith settlement “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.”  (CCP § 877.6(c).)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 (Tech-Bilt), the California Supreme Court set forth a non-exclusive list of factors to consider in making this determination.  “The intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial.  Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.  [Citation.]  Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.”  (Id. at p. 499.)

The opposing party bears the burden “to show the settlement amount was ‘so far “out of the ballpark” in relation to’ the Tech–Bilt factors that the settlement was inconsistent with the equitable objectives of section 877.6.”  (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 967 (Cahill); accord CCP § 877.6(d) [“The party asserting the lack of good faith shall have the burden of proof on that issue”].)  Because the opposing party bears the burden of proof, the moving party is “not compelled to make a showing as to their proportionate liability” when bringing its motion.  (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350, fn. 6 (Mattco).)  But after an opposing party “attack[s] the settlement as lacking in good faith,” the moving party must “file counter-affidavits (§ 877.6, subd. (b)) to make an evidentiary showing that the settlement was ‘in the ballpark.’ ”  (Ibid.) 

To prevail over an opposing party, “[s]ection 877.6 and Tech–Bilt require an evidentiary showing, through expert declarations or other means, that the proposed settlement is within the reasonable range permitted by the criterion of good faith.”  (Mattco, supra, at p. 1351.)  A determination of good faith requires “substantial evidence,” which “is not synonymous with ‘any’ evidence; rather, it means the evidence must be of ponderable legal significance, reasonable, credible, and of solid value.”  (Cahill, supra, 194 Cal.App.4th at p. 958.)  Finally, “the determination whether the settlement was in good faith must be based on competent, admissible evidence.”  (Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 736.)

Dignity presents substantial evidence that its settlement for $29,999 was in good faith.  Dignity shows that, when it entered the settlement in August 2022, plaintiff’s potential recovery was $308,840.84.  Plaintiff could recover no more than $250,000 in “noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage.”  (Former Civ. Code, § 3333.2(b).)  Dignity also shows a potential for $58,840.84 in economic damages: $50,000 for lost earnings and $8,840.84 in medical expenses.  In plaintiff’s interrogatory responses, he stated, “At this point in time, plaintiff is not asserting a loss of earnings claim.”  (Supp. Guzé Decl., Ex. E, response to No. 8.1.)  At deposition, plaintiff testified he lost approximately $21,000 to $50,000 in earnings.  (Id., Ex. D, Smith Depo., 15:25-17:15.)  For medical expenses, Dignity presents evidence plaintiff’s insurer (Medi-Cal) paid his medical providers $8,840.84: $2,571.09 to Providence Little Company of Mary Hospital and $6,269.75 to La Vida Multispecialty Medical Center.  (2nd Supp. Guzé Decl., Exs. G, H.)

Dignity makes a substantial showing that its proportionate share of liability is no more than 50%.  This case arises from a foreign object left in plaintiff’s body during surgery.  Dr. Hubbard was the surgeon.  His proportion of liability should be no less than (and potentially significantly greater than) Dignity’s.  “Cases in which a foreign object has been left in the patient’s body during an operation fall within [the] common knowledge application of the res ipsa doctrine.”  (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6.)  Under the “captain of ship doctrine,” a surgeon has “the nondelegable duty to remove all sponges from the patient’s body, and this duty is unaffected by any hospital protocols requiring sponge counts to be made by nurses.”  (Baumgardner v. Yusuf (2006) 144 Cal.App.4th 1381, 1399.)  The hospital, however, can also be liable for its own negligence.  (Truhitte v. French Hospital (1982) 128 Cal.App.3d 332, 348-349.)

Dignity thus shows its potential liability was $154,420.42: half of $308,840.84.  Its settlement of $29,999 is 19.4% of that potential liability.  Considering the nature of settlement as a compromise, paying 19.4% of its potential liability falls well within the ballpark of good faith settlements based on the Tech-Bilt factors. 

Dr. Hubbard does not meet his burden of showing the settlement was not made in good faith.  He presents no evidence of collusion or fraud.  He does not dispute Dignity’s estimate of its proportion of liability.  Nor does he dispute that plaintiff could recover no more than $250,000 in noneconomic damages.  Dr. Hubbard only disputes the potential damages of $50,000 in lost earnings and $8,840.84 in medical expenses.  He argues plaintiff never clearly articulated his lost earnings claims and the “$50,000 figure is illusory.”  (Hubbard’s Supp. Brief, p. 2.)  That plaintiff never clearly articulated his lost earnings is not sufficient to show Dignity did not reach its settlement in good faith.  At this stage, Dr. Hubbard bears the burden of showing plaintiff’s potential recovery for lost earnings is greater than $50,000.  That figure is not illusory.  Dignity calculated it based on plaintiff’s deposition testimony that he lost seven to ten months of earnings amounting to $3,000 to $5,000 monthly.  (Supp. Guzé Decl., Ex. D, Smith Depo., 15:25-17:15.)  And Dignity reached that $50,000 figure using the higher end of plaintiff’s ranges of both the number of months and his monthly earnings.

Dr. Hubbard argues Dignity fails to account for other “special damages.”  He relies on plaintiff’s interrogatory responses that he had incurred other expenses and would incur future expenses that he could not quantify when he responded in July 2021.  But Dr. Hubbard presents no evidence of the amount of any such expenses.  Plaintiff testified at deposition in March 2022, about eight months after serving his interrogatory responses.  Dr. Hubbard does not show that plaintiff testified about incurring those expenses or the amount of those expenses.  Plaintiff’s unsubstantiated claims of unknown amounts of other damages does not undermine the conclusion that, based on what Dignity knew at the time, the settlement of $29,999 was made in good faith. 

Disposition

Defendant Dignity Community Care dba California Hospital Medical Center’s motion for determination of good faith settlement is granted.

Under Code of Civil Procedure section 877.6, the court hereby finds the settlement between plaintiff George Smith and defendant Dignity Community Care dba California Hospital Medical Center was entered into in good faith.