Judge: Cherol J. Nellon, Case: 21STV00419, Date: 2023-05-16 Tentative Ruling

Case Number: 21STV00419    Hearing Date: May 16, 2023    Dept: 28

Defendant Bank of America’s Motion to Seal; Defendant Bank of America’s Application for Good Faith Settlement

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On January 5, 2022, Plaintiff Elroy Tolbert (“Plaintiff”) filed this action against Defendants The JWR Living Trust (“JWRj, Michael J Raedeke (“Raedeke”), GPT Gig Boa Portfolio Owner, LLC (“GPT”) and Bank of America (“BoA”) for general negligence and premises liability.

On July 28, 2022, the Court dismissed GPT, without prejudice, pursuant to Plaintiff’s request.

On September 9, 2022, BoA filed an answer and a Cross-Complaint against Cross-Defendant JWR for breach of contract, express indemnity, equitable indemnity, apportionment and declaratory relief. On November 4, 2022, JWR filed an answer.

On September 27, 2022, JWR and Raedeke filed an answer.

On April 3, 2023, BoA filed a Motion to Seal to be heard on April 28, 2023. The Court continued the hearing to May 16, 2023.

On April 3, 2023, BoA filed a Motion for Good Faith Settlement to be heard on May 16, 2023.

Trial is currently set for November 15, 2023.

PARTY’S REQUESTS

BoA requests the Court seal surveillance footage filed in support of the application for good faith settlement.

BoA requests the Court grant the application for good faith settlement.

LEGAL STANDARD

CCP § 887.6(a)(2) states that “[i]n 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. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service. 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 of the settlement. 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. The notice by a nonsettling party shall be given in the manner provided in subdivision (b) of Section 1005. However, this paragraph shall not apply to settlements in which a confidentiality agreement has been entered into regarding the case or the terms of the settlement.” The statute further clarifies that the party asserting the lack of good faith shall have the burden of proof on that issue.

CCP § 877 states “[w]here a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater. (b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties.”

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “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.”

The right of public access to the record is generally overcome when there is a highly confidential, competitive piece of information to be sealed. The subject document is approximately 90 pages of confidential, non-public, consumer-reported information regarding alleged adverse events relating to the use of the subject product. It contains medical and personal information of the consumers received through the consumer reporting program—none of which is intended for public disclosure. The information contained here is both confidential and commercially sensitive. Parties have agreed that non-public adverse event reports, such as the subject exhibit, are to remain confidential. Making this information public would not only violate Irwin’s privacy rights, but also those of consumers that have reported alleged incidents stemming from the use of the product. The request is narrowly tailored to the report, which contains personal information. There are no less restrictive means to protect the interest. The Court grants the motion.

DISCUSSION

Motion to Seal

BoA requests the Court seal the lodged security footage, as it reveals the positions and views of several surveillance video cameras. The Court denies BoA’s request, as the subject video is not and will not be a matter of public record. The publicly available copy of the motion for good faith settlement did not include pictures of or a link to the subject video; instead, it stated that the video was conditionally lodged under seal. Therefore, the only copy of the video is lodged with the Court is lodged via physical media. The court destroys physical copies of media following the hearing, unless a party requests the return of said media. The media will be destroyed following this hearing—thus, there is nothing to seal. The Court denies the motion.

Recovery and Proportionate Liability

Plaintiff alleges that Plaintiff fell on a slippery substance in the parking lot of a financial center operated by BoA. The subject premises, including the parking lot, is owned by JWR. Video footage confirms that Plaintiff fell in the subject parking lot.

According to BoA, JWR assumed a contractual duty to repair, maintain and clear the parking and common areas, including the parking lot. Per the lease, BoA owed no duty to inspect, repair, maintain or clean the parking lot.

BoA and Plaintiff agreed to settle for $5,000.00, based on BoA’s allegedly non-existent liability. However, BoA provided no information as to the requested damages by Plaintiff, and thus the Court cannot determine the amount made in proportion to the amount requested. However, the Court notes that JWR has stipulated to this settlement. There is no indication that any party contests that BoA has no liability in this case. Therefore, the $5,000.00 settlement should more than cover any alleged proportionate liability in the eyes of the appearing parties.

Allocation of Settlement

BoA provided no information as to who will receive the settlement. The Court assumes all will be allocated to Plaintiff.

Financial considerations

BoA provided no information as to their insurance or financial status. However, as noted above, parties have agreed BoA is not liable for this action. BoA’s financial status is irrelevant, given the lack of liability.

Collusion or Fraud

There is no indication of fraud or collusion. This was an arms-length settlement conducted after extensively engaging in discovery with all parties.

Conclusion

The Court finds that BoA has satisfied the Tech-Bilt factors. Parties agree that BoA’s liability is non-existent. The $5,000.00 in settlement exceeds any proportionate liability for BoA, given that fact. The Court grants the motion.

CONCLUSION

Defendant Bank of America’s Motion to Seal is DENIED.

Defendant Bank of America’s Application for Good Faith Settlement is GRANTED. The Court dismisses, with prejudice, and bars all present and future complaints and cross-complaints against BoA pursuant to CCP § 877.6(c).

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.