Judge: James L. Crandall, Case: 21-1215821, Date: 2022-09-08 Tentative Ruling

Motion for Determination of Good Faith Settlement

Defendants/Cross-Complainants Madison and John McKeown’s motion to challenge James and Julie Urquhart’s application for determination of good faith settlement is GRANTED.

Defendants/Cross-Defendants James Urquhart and Julie Urquhart’s application for determination of good faith settlement is DENIED.

On July 14, 2022, this court continued the hearing on these matters to permit the parties to submit supplemental documents. In a detailed tentative ruling, the court explained the deficiencies in Urquharts’ (and Plaintiff’s) showing of the Tech-Bilt factors and expressly noted that:

· Neither Urquharts nor Plaintiff presented any evidence to show a rough approximation of Plaintiff’s total recovery. There is no evidence regarding Plaintiff’s current condition and/or his future prognosis, whether he is claiming any lost past or future earnings or future medical expenses.

· Neither Urquharts nor Plaintiff discussed what Urquharts’ proportionate liability is.

· Urquharts did not provide evidence of their financial condition.

Despite the opportunity to supplement their showing of the Tech-Bilt factors, Urquharts and Plaintiffs failed to show that Urquharts’ proposed $1.25M settlement is within the ballpark.

Urquharts did not present sufficient evidence to show a rough approximation of Plaintiff’s total recovery.

There is no dispute that Plaintiff is not claiming past or future lost earning. Urquharts contend that Plaintiff’s medical bills are $346,945.96, and nothing more.

In support of their assertion that Plaintiff is not claim any future medical expenses, Urquharts cite to all of Plaintiff’s April 15, 2022’s form interrogatory responses and to three pages of Plaintiff’s July 28, 2022 deposition. Neither of those pieces of evidence support Urquharts’ assertion that Plaintiff is not claiming future medical expenses.

Instead, in response to form interrogatory 6.7, which asked whether “any health care provider advised that you may require further additional treatment for any injuries that you attribute to the incident,” Plaintiff stated “Yes. [He] requires continued treatment for the pain resulting from the injuries he sustained in this incident.” [ROA 82, Ng decl., ¶ 2, Exh. A]

In the portions of Plaintiff’s deposition that Urquharts cited, when asked if he had any follow up medical visits after leaving the rehab facility, the last doctor he saw, and if the rehab facility gave him any recommendations to follow up, Plaintiff stated he did not remember. [Id., Ng decl., ¶ 3, Exh. B, p. 167-168, 171]

Furthermore, in his supplemental briefing, Plaintiff stated that the amount of future medical treatment has not been calculated or determined, not that he was not claiming any.

In addition, Urquharts curiously contend that the rough approximation of Plaintiff’s total recovery is only his medical specials. They entirely ignore what Plaintiff may be able to recover in non-economic damages.

Plaintiff also fails to sufficiently demonstrate a rough approximation of his total recovery. He simply claims, without any support, that his damages are primarily non-economic damages, which could be at least $5M. However, Plaintiff does not provide any evidence to support that estimate. He did not provide a declaration from his attorney discussing reasons to support that estimate, including reference any previous similar cases, or a declaration from an expert.

Furthermore, Plaintiff does not state that he is not claiming any future medical damages, and other than claiming that he is still debilitated and in pain, has not provided any evidence regarding his current condition or his future prognosis.

As for proportionate liability, Urquharts and Plaintiff’s insistence that James Urquhart is minimally at fault and that Madison Mckeown bears the lion’s share of the fault is not supported by the evidence. They confuse causation of harm with severity of harm. (See, e.g., Bermudez v. Ciolek (2015) 237 Cal.App.4th 1311 [Negligence of an eastbound motorist, who collided with a turning westbound motorist and ricocheted into a bicyclist, was not the cause of the bicyclist's injuries. Although there was evidence that the eastbound motorist was slightly exceeding the speed limit and may not have been paying close attention, other evidence indicated that he could not have avoided collision even if he had exercised due care].)

Urquharts and Plaintiff do not dispute that James collided with Plaintiff first, as he was attempting to cross the street, which caused him to land in the #2 lane where Madison ran over him. Even if Madison changed lanes from behind James, which she now disputes, there is no evidence that she was speeding. As such, Urquharts’ assertion that James is only 20% at fault, or Plaintiff’s assertion that he is 25-50% at fault, strains credulity.

Lastly, based on Urquharts’ declarations, they are not insolvent. [ROA 78 and 80, declarations of James and Julie Urquhart] They own a home worth approximately $1.4M and owe approximately $335,000 on it. They own outright the Honda Civic involved in the accident, and an Audi they owe $9,800 on. They do not own any other property nor investments funds other than their retirement and 401K accounts, but did not disclose the amounts in those accounts. They have $27,000 in their checking and savings accounts. They earn $155,000 a year.

Urquharts claim, without citation to authority, that all their assets are exempt from debt collection. They have not shown that they are judgment proof. Urquharts may not have substantial assets but they are not insolvent.

In sum, despite an opportunity to shore up their application for determination of good faith settlement, Urquharts, as well as Plaintiff, have failed to make a sufficient showing of the Tech-Bilt factors. Therefore, Defendants/Cross-Complainants Madison and John McKeown’s motion to challenge James and Julie Urquhart’s application for determination of good faith settlement is GRANTED and Defendants/Cross-Defendants James Urquhart and Julie Urquhart’s application for determination of good faith settlement is DENIED.

McKeowns to give notice of ruling.

Future hearing dates

7/17/23 – MSC

6/16/23 – Jury Trial