Judge John J. Kralik, Case Number: 23BBCV01924, Date: 2024-04-12 Tentative Ruling

Plaintiff Kelsi Mcaleese (“Plaintiff”) alleges that on January 18, 2022, Defendants Trader Joe’s Company (“Trader Joe’s”) and Eunice Knight Saunders Corporation (“EKSC”) negligently caused Plaintiff’s injuries due to an improper/unsafe placement of flower carts and lack of safety barriers around the flower cart and store entrance areas, which created a dangerous condition on the property. Plaintiff alleges that she sustained injuries and damages as a result of the dangerous condition and Defendants’ failure to warn Plaintiff of the risks.

The complaint, filed August 21, 2023, alleges causes of action for: (1) general negligence; and (2) premises liability.

On November 6, 2023, EKSC filed a cross-complaint against Trader Joe’s and Roes 1-20 for: (1) implied and equitable indemnity; (2) express indemnity; (3) contribution; and (4) declaratory relief. On December 27, 2023, EKSC amended the cross-complaint, naming Myrna Bejarano as Roe 1.

On December 7, 2023, Trader Joe’s filed a cross-complaint against Myrna Bejarano for: (1) equitable indemnity; (2) implied indemnity; (3) contribution; and (4) declaratory relief.

On December 7, 2023, Trader Joe’s filed a cross-complaint against EKSC for: (1) total indemnity; (2) equitable indemnity; (3) implied indemnity; (4) contribution; and (5) declaratory relief.

On March 8, 2024, Cross-Defendant Myrna Bejarano filed a motion for determination of good faith settlement.

In Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499, the California Supreme Court articulated several factors to be considered in determining whether a settlement is in good faith within the meaning of section 877.6:

[T]he intent and the 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 that he would if he were found liable after trial. Other relevant considerations include the financial conditions and insurance policy limits of the 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.

To determine whether a settlement was in “good faith” the judge should inquire as to whether the amount of the settlement is “within the reasonable range” of the settling defendant’s proportional share of comparative liability for the plaintiff’s injuries. (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 872; City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262.) Generally, a settlement will be found to be in good faith unless the objecting defendant shows it to be “grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor’s liability to be.” (Abbott Ford, supra, 43 Cal.3d at 872.) That is, a party opposing a good faith settlement must demonstrate that “the settlement is so far ‘out of the ballpark’ in relation to” the factors discussed above that it is “inconsistent with the equitable objectives of the statute.” (Tech-Bilt, supra, 38 Cal.3d at 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.” (CCP § 877.6(c).)

With the opposition brief, Trader Joe’s submitted evidentiary objections to the declaration of Megan K. Hawkins filed in support of Myrna Bejarano’s motion. The objections are overruled.

Myrna Bejarano filed a motion for determination of good faith settlement between Myrna Bejarano and non-party Hernan Bejarano, on the one hand, and Plaintiff, on the other. Trader Joe’s opposes.

In making its determination on the good faith nature of the settlement, the Court evaluates the Tech-Bilt factors.

1. Amount Paid in Settlement and Allocation of Settlement Proceeds Among Plaintiffs

The Bejaranos and Plaintiff have agreed to settle this action for $25,000, which is the full amount of the sole applicable insurance limit held by the Bejaranos. In consideration of the settlement amount, the settling parties agree to the compromise, release, and waiver of all claims arising from the incident.

There is only one Plaintiff in this action, such that the settlement proceeds will not be allocated among multiple plaintiffs.

2. Rough Approximation of Plaintiff’s Total Recovery and Settlor’s Proportionate Liability

The Bejaranos state that the subject incident occurred as a result of an accident on January 18, 2022 at the Trader Joe’s store located at 14119 Riverside Drive in Sherman Oaks. Plaintiff was injured as she was exiting the store when a motor vehicle operated by Myrna Bejarano struck a column, which then struck a flower cart that propelled into Plaintiff and caused her to sustain physical injuries. The Bejaranos owned the vehicle operated by Myrna Bejarano. Trader Joe’s and EKSC are alleged to be liable for the unsafe and improper placement of the flower carts and for lack of safety barriers at or around the flower cart and entrance of the store. Plaintiff’s complaint is alleged against Trader Joe’s and EKSC only. EKSC’s cross-complaint is filed against Trader Joe’s and Myrna Bejarano. Trader Joe filed two cross-complaints—one against Myrna Bejarano and another against EKSC.

The Bejaranos argue that Plaintiff’s counsel represented in pre-litigation correspondence (over a year after the subject incident) that Plaintiff sustained right leg/foot sprains/strain, pain, and possible internal derangement, as well as some mental/emotional injuries, and that her medical bills were $17,100 at that time.

The Bejaranos do not dispute that they would likely have been liable for some of Plaintiff’s damages and that Hernan Bejarano’s potential exposure would be limited to $15,000 as the registered owner of the vehicle. They argue that based on the information available at the time of settlement, they were informed of Plaintiff’s damages of $17,100 for medical specials. They argue that their pre-litigation settlement was made in good faith and is within the ballpark of their proportional liability based on the potential liability of the other parties, the total available insurance policy of $25,000 that was tendered and accepted, the hard specials known at the time of settlement at $17,100, and the consideration that one should pay less in settlement than one should pay following a finding of liability after trial.

In opposition, Trader Joe’s argues that Plaintiff has identified multiple injuries as a result of the subject incident through her discovery responses on January 8, 2024. (Opp., Ex. E.) It argues that Plaintiff claims medical bills of $1,150 for Dr. Houman M. Kashani, $3,600 for Dr. Corey Chakarun, $950 for Shawn Roofian, $10,200 for Yoanna Yahoudai, PsyD., and $515 for Adin Daian, PT, which totals $15,465. (Id.) According to her Statement of Damages (dated August 1, 2023), Plaintiff is claiming $1,000,000 in pain suffering, and inconvenience; $1,000,000 in emotional distress damages; interest (undetermined); $17,100 in medical expenses; future medical expenses (undetermined); loss of earnings (undetermined); and loss of future earning capacity (undetermined). (Opp., Ex. D.) Based on these amounts, Trader Joe’s argues that the Bejaranos have not shown that the total subject settlement amount is within the ballpark and that the Bejaranos have not discussed their proportionate share of liability with the nonsettling defendants Trader Joe’s and EKSC regarding the aforementioned amounts[1].

However, the settlement at issue must be considered and evaluated based on the information available at the time of settlement. The settlement occurred in March 2023 prior to Plaintiff filing this action on August 21, 2023. The Statement of Damages is dated August 1, 2023 and Plaintiff’s Form Interrogatory responses is dated January 5, 2024, which are months after the settlement occurred. (Opp., Exs. D-E.) In reply, the Bejaranos argue that Plaintiff’s discovery responses confirm that she last saw her physicians in 2022, she has health insurance, and she does not need future medical treatment. (Opp., Ex. E [FROG Response Nos. 4.1, 6.4, and 6.7].) They also argue that Plaintiff’s claims of emotional distress damages and pain and suffering damages in the millions does not mean she will actually recover those sums. Rather, they focus on the amount of damages claimed by Plaintiff ($17,100) at the time of settlement and the amount that they offered ($25,000).

In making its determination on this factor, the Court recognizes that it is acceptable for settlors to pay less in settlement than if they were found liable after trial and also takes into account the information available to the parties at the time of negotiations. Based on the information that was currently available to the parties at the time of settlement (which was prior to the action being filed) and the information provided to the Court, the Court finds that this factor is satisfied.

3. Other Factors: Financial Condition and Insurance Policy Limits of Settlor, and Existence of Collusion, Fraud, or Tortious Conduct

The Bejaranos state that the only policy of insurance under which they have coverage for the damages, claims, or actions in connection with the subject incident was the automobile policy issued by Geico General Insurance Company with bodily injury policy limits of $25,000 for each person and $50,000 each occurrence. (Hawkins Decl., Exs. 2, 3, 7.) The Bejaranos states that the at-issue settlement occurred pre-litigation for $25,000 and they executed the settlement on March 1, 2023. (Hawkins Decl., Ex. 8.)[2]

Trader Joe’s argues that the Bejaranos have not shown evidence of their wealth and financial consideration. While financial condition is a relevant factor in considering whether the Tech-Bilt factors have been met, it is not a necessary or required element where the settlement is not disproportionately low. The Bejaranos have shown their policy limits of $25,000, which is sufficient to cover and exceeded Plaintiff’s medical bills at the time they entered the settlement prior to litigation.

The Bejaranos argue that the settlement was not the result of collusion, fraud, or tortious conduct aimed at injuring the interests of the nonsettling defendants. They argue that the total available insurance policy limits were tendered and accepted prior to litigation.

These factors weigh in favor of finding that the settlement was entered in good faith.

Cross-Defendant Myrna Bejarano’s motion for determination of good faith settlement is granted. “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.” (CCP § 877.6(c).)

This courtroom is dark on June 11, 2024. On the Court’s own motion, the Case Management Conference set on June 11, 2024, is continued to July 22, 2024, at 8:30 a.m.

[1] In the reply brief, the Bejaranos estimate that the range of likely recoverable damages for Plaintiff to be $25,000 to $42,750. (Reply at p.6.) They believe their proportionate share of liability would be approximately 60% and Trader Joe’s/EKSC’s liability of approximately 40% and that the settlement is within the ballpark of their proportional liability for damages of approximately $15,000 to $25,650.

[2] The parties to the settlement are identified as Kelsi Mcaleese (claimant) and Myrna Bejarano and Hernan Najarno (defendants). (Hawkins Decl., Ex. 8.) In the reply papers, defense counsel Megan Hawkins states in her declaration that Hernan Bejarano was inadvertently identified as Hernan Najarano and that this was a typographical error. (Hawkins Reply Decl., ¶7.)

Superior Court of California

County of Los Angeles

Department B