Judge Bruce G. Iwasaki, Case Number: 22STCV00179, Date: 2024-09-18 Tentative Ruling

Moving Party: Plaintiff Johanna Cobarrubias and Defendant Ventura Park Management, LLC

Tentative Ruling: The Application for Determination of Good Faith Settlement is denied without prejudice.

In this employment action, Plaintiff Johanna Cobarrubias (“Plaintiff”) filed a Complaint on January 3, 2022, alleging discrimination, retaliation, failure to provide reasonable accommodations, failure to engage in a good faith interactive process, wrongful termination in violation of public policy, and other claims against her former employer, Defendant Ventura Park Management, LLC (“VPM”).

Also, on July 15, 2022, Defendant VPM filed a Cross-Complaint against Kevin Long Ha and Phuong Pham alleging a cause of action for comparative indemnity/declaratory relief.

On September 14, 2022, Defendant VPM requested default against Phuong Pham on the Cross-Complaint, and default was entered on such date.

On November 16, 2022, Plaintiff filed an Amendment to Complaint which identified Kevin Long Ha as Doe 1.

On November 16, 2022, Plaintiff filed an Amendment to Complaint which identified Phong Pham as Doe 2.

On October 24, 2023, Plaintiff requested default against Phong Pham on the Complaint, and default was entered on such date.

On October 30, 2023, Defendant VPM requested default against Kevin Long Ha on the Cross-Complaint, and default was entered on such date.

On June 4, 2024, Defendant VPM filed a Proof of Service indicating that the summons, complaint, and cross-complaint were served on Phuong Pham on June 2, 2024 by substituted service.

On August 6, 2024, the Court held a status conference. At the status conference, Plaintiff’s counsel informed the Court “that the default entered on October 24, 2023, was entered as to the wrong ‘Phong Pham,’ with the address indicated on the previously filed proof of service.” (08/06/24 Minute Order at p. 1.) The Court therefore indicated that “the default entered against defendant Phong Pham is ordered vacated and said defendant’s name is corrected to reflect ‘Phuong Pham’. (08/06/24 Minute Order at p. 1.) The Court vacated the default entered on October 24, 2023 as to Phong Pham. (08/06/24 Minute Order at p. 1.)

Moreover, the Court also vacated the default entered on September 14, 2022 concerning the Cross-Complaint. (08/06/24 Minute Order at p. 1.) The Court vacated such default as to Phuong Pham pursuant to an oral motion by counsel for Defendant VPM. (08/06/24 Minute Order at p. 1.) “Pursuant to a joint oral motion by plaintiff’s counsel and counsel for cross-complainant, defaults are entered against Phuong Pham on the complaint and the cross-complaint, with the address of 1738 44th Avenue, San Francisco, CA 94122 (as indicated in the proof of service filed on June 04, 2024).” (08/06/24 Minute Order.)

The Court ordered counsel to submit default packets for entry of judgments no later than October 15, 2024. (08/06/24 Minute Order at p. 1.) The Court set a hearing on Plaintiff’s Motion for Determination of Good Faith Settlement (as to Defendant VPM) for September 18, 2024. (08/06/24 Minute Order at p. 2.)

On August 15, 2024, Long Ha (who indicates that he was erroneously sued as Kevin Long Ha) filed a joint Answer to the Complaint and the Cross-Complaint.

On August 19, 2024, Plaintiff and Defendant VPM (collectively, “Settling Parties”) filed and served the instant Application for Determination of Good Faith Settlement.

On August 23, 2024, Phuong Pham (“Pham”) filed a Motion to Set Aside and Vacate Default, which is set for hearing on September 24, 2024.

Long Ha also filed a Motion to Set Aside and Vacate Default as to the Cross-Complaint, which is set for hearing on October 1, 2024.

On September 4, 2024, Pham filed an opposition to the Application for Determination of Good Faith Settlement, to which the Settling Parties replied on September 11, 2024.

“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 shall be 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, upon giving notice in the manner provided by subdivision (b) of Section 1005.” (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.” (Ibid.) “The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service.” (Ibid.) “Proof of service shall be filed with the court. 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 settlement.” (Ibid.) “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.” (Ibid.)

“The issue of the good faith of a settlement may be determined by the court on the basis of the 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 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).) “The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., § 877.6, subd. (d).)

When determining whether a settlement was made in good faith, the following factors are considered: (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 he would if he 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 & Associates (1985) 38 Cal.3d 488, 499.)

“The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor’s liability to be.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262 [citation omitted].) “[A] good faith settlement does not call for perfect or even nearly perfect apportionment of liability.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 875 [internal quotations omitted].) “[O]nly when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors.” (City of Grand Terrace v. Superior Court, supra, 192 Cal.App.3d 1251, 1261.) “That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” (Ibid.)

On reply, the Settling Parties assert that Pham lacks standing to oppose the application because default was entered against Pham on August 6, 2024.

“The entry of a default terminates a defendant’s rights to take any further affirmative steps in the litigation until either its default is set aside or a default judgment is entered.” (Devlin v. Kearny Mesa AMC/Jeep/Renault, Inc. (1984) 155 Cal.App.3d 381, 385.) “A default against whom a default has been entered is out of court and is not entitled to take any further steps in the cause affecting plaintiff’s right of action . . . until such default is set aside in a proper proceeding . . . .” (Ibid.)

The Court agrees with the Settling Parties that Pham lacks standing to oppose the application. Default has been entered against Pham on both the Complaint and the Cross-Complaint. (See 08/06/24 Minute Order.) Thus, until the default is set aside, Pham lacks any right to take any further affirmative steps in this litigation. Given that Pham cannot take any further steps in this action until the default is set aside, the Court strikes Pham’s improperly filed opposition. (Code Civ. Proc., § 436, subd. (b).)

According to the Complaint, Plaintiff was hired by Defendants as a Medication Technician/Front Desk Assistant on or about February 21, 2020. (Complaint, ¶ 15.) Plaintiff fulfilled, and substantially performed, all of her job duties and all the terms and conditions of employment. (Complaint, ¶ 16.) On or about March 19, 2020, Plaintiff’s daughter was admitted to the ICU because she began to develop possible COVID-19 symptoms. (Complaint, ¶ 17.) On or about March 20, 2020, Plaintiff contacted her supervisor to inform her that her daughter was hospitalized and as a result would be unable to work her shift. (Compliant, ¶ 19.) Plaintiff alleges that on or about March 28, 2020, Plaintiff was expected to return to work; however, Plaintiff began to develop COVID-19 symptoms and informed her supervisor of such fact. (Complaint, ¶ 21.) Plaintiff was placed off work by her medical provider who transmitted her medical leave notes to Defendants. (Complaint, ¶¶ 21-22.) Plaintiff alleges that her supervisors refused to reinstate her employment and she was terminated on or about April 30, 2020. (Complaint, ¶¶ 23-25.) Plaintiff was terminated because her supervisor reasoned that Plaintiff’s COVID-19 symptoms might return and that she might still have COVID-19. (Complaint, ¶ 24.)

In the Cross-Complaint, Defendant VPM alleges that Pham and Ha caused the damages alleged by Plaintiff in the Complaint. (Cross-Complaint, ¶ 8.)

Luis Guardado, Esq. (“Guardado”) provides a declaration in support of the application for determination of good faith settlement. Mr. Guardado sets forth the causes of action alleged in the Complaint (Guardado Decl., ¶ 2), and the procedural history involving the entry of defaults against Pham and Ha (Guardado Decl., ¶¶ 5-9.) Counsel states that he eventually learned that the person served on January 16, 2023 was not Defendant Pham and that the incorrect person named Phuong Pham was served. (Guardado Decl., ¶ 5.) Counsel states that “the correct Pham was properly served on June 3, 2024 with both Plaintiff’s complaint and VPM’s cross-complaint.” (Guardado Decl., ¶ 13; Ex. 6.)

As to the good faith of the settlement, Mr. Guardado states that “[o]n November 6, 2023, myself, Kaveh S. Elihu, Esq., and Plaintiff attended a mediation with VPM and their counsel to resolve this matter. The parties settled their disputes, but VPM maintains its denial of any wrongdoing or liability to Plaintiff. VPM further contends that when it purchased VPM from Pham and Long, it did not purchase any of VPM’s liabilities, including but not limited to, any potential liabilities to Plaintiff.” (Guardado Decl., ¶ 10.) The agreement to settle does not include either Ha or Pham. (Guardado Decl., ¶ 10.) The terms of the settlement agreement require “VPM [to] pay Plaintiff Seventy-Five Thousand Dollars and Zero Cents . . . in consideration of, Plaintiff’s execution of and compliance with the terms of the settlement agreement which includes [Plaintiff’s] waiver and release of claims against VPM.” (Guardado Decl., ¶ 10.) According to counsel, “[t]he parties memorialized their settlement agreement in a binding and written [s]ettlement [a]greement and has been executed by each of the Settling Parties and approved as to form by their respective counsel.” (Guardado Decl., ¶ 10.)

The Court finds that the application is deficient. Although the application is unopposed given the Court’s striking of Pham’s opposition brief, the Court finds that the declaration of Mr. Guardado merely states the settlement amount and that such settlement does not include Ha or Pham.

The Court must be able to assess “whether the amount of settlement is within the reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d 488, 499.) The declaration of Mr. Guardado does not allow the Court to make such an assessment. Although the factors in Tech-Bilt are nonexclusive, Mr. Guardado only presents the amount of the settlement while not stating any facts as to the other five factors. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 959.) The Court must ensure that the settlement amount is “not . . . grossly disproportionate to what a reasonable person, at the time of settlement, would estimate the settling defendant’s liability to be.” (Id. at p. 960.) The application, in its present form, does not allow the Court to make such a determination. The application presents insufficient information as to the reasonableness of the settlement.

The Court therefore cannot assess the good faith of the settlement entered into between the Settling Parties. While the application is unopposed, the Court finds that the application does not make a sufficient showing of good faith.

Department 58