Judge Kerry Bensinger, Case Number: 22STCV07737, Date: 2024-03-06 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 31 before 8:30 the morning of the hearing. The email address is smcdept31@lacourt.org. Please do not call the court to submit on the tentative. Please do not submit to the tentative ruling on behalf of the opposing party. Please do not e-mail the Court if you plan to appear and argue.

In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind:

The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record.

Oral argument is not an opportunity to simply regurgitate that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated.

If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.

**Tentative rulings on Motions for Summary Judgment will only be available for review in the courtroom on the day of the hearing.

This is a wrongful death case. On December 18, 2021, Darrell Caldwell (AKA Drakeo the Ruler)(Mr. Caldwell or “Decedent”) was stabbed backstage at the “Once Upon A Time in LA” music festival (“Music Festival”). Mr. Caldwell was 28 years old, and a hip hop recording artist. He was stabbed and killed moments before going on stage.

In their First Amended Complaint Plaintiffs Darrylene Corniel (Decedent’s mother) and the Estate of Darrell Caldwell, by and through its Personal Representative Darrylene Corniel (collectively, “Plaintiffs”) allege: “Darrell died at the hands of a violent mob that was allowed into what should have been a protected and secured area backstage at the Music Festival. The violent mob attacked Darrell as he proceeded through the backstage area of the performer’s stage on the Premises, where he was scheduled to perform just minutes following this violent attack. This was a backstage area that was supposed to be secure and safe. It was not. Instead, due to Defendants’ negligence and total lack of care, a violent mob was allowed in.” (FAC ¶¶ 2, 3.) Plaintiffs sued Settling Defendant CI Security Specialist (“CISS”), along with numerous other security companies, for failing to keep the backstage area secure and safe.

On or about March 2, 2022, Plaintiffs filed the instant action, and filed a First Amended Complaint on or about May 18, 2022, alleging causes of action for (1) Negligence (Wrongful Death); (2) Negligence (Survival Action); (3) Premises Liability (Wrongful Death); (4) Premises Liability (Survival Action); (5) Negligent Hiring/Retention/Supervision Training (Wrongful Death); and (6) Negligent Hiring/Retention/Supervision Training (Survival Action) against Defendants.

On January 29, 2024, CISS filed a motion for determination of a good faith settlement.

On February 22, 2024, Defendants LAFC Stadium Co, LLC (erroneously sued and served as LAFC Stadium Co, LLC), Live Nation Worldwide, Inc. and C3 Presents, LLC, filed an opposition to CISS’s Motion. On the same day, Defendant NPB Global Consulting Group, Inc. filed its opposition.[1] Defendant NPB Companies, Inc. filed a joinder in NPB Global’s opposition. (Opposing parties are hereinafter collectively referred to as Non-Settling Defendants.)

On February 28, 2024, CISS filed its replies to the Non-Settling Defendants’ Oppositions.

Under section 877.6 of the Code of Civil Procedure,[2] “[a] determination by the court that [a] settlement was made in good faith shall bar any other joint tortfeasor . . . from any further claims against the settling tortfeasor . . . for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (§ 877.6, subd. (c).) Additionally, a determination that a settlement was made in good faith will reduce the claims against the non-settling defendants by the amount specified in the settlement agreement. (§ 877.6, subd. (a).) “The party asserting the lack of good faith has the burden of proof on that issue.” (§ 877.6, subd. (d).)

Section 877.6 requires “that the courts review [settlement] agreements made under its aegis to insure that the settlements appropriately balance the . . . statute’s dual objectives” (i.e., providing an “equitable sharing of costs among the parties at fault” and encouraging parties to resolve their disputes by way of settlement). (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 494 (hereafter, Tech-Bilt).) Good faith settlements further two sometimes competing policies: (1) the equitable sharing of costs among the parties at fault, and (2) the encouragement of settlements.¿ (Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1487.)¿¿ The evaluation of whether a settlement was made in good faith is¿required to “be made on the basis of information available at the time of settlement.”¿ (Tech-Bilt, supra, 38 Cal.3d at p. 499.) ¿

In Tech-Bilt, the California Supreme Court set forth the factors to consider when determining whether a settlement was made in good faith. The Tech-Bilt factors are: (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. (Id. at pp. 498-501.)

In City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261 (Grand Terrace) , the Court of Appeal provided the following guidance regarding a good faith settlement determination:¿¿

“If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.”

The first Tech-Bilt factor consists of two parts – a rough approximation of Plaintiff’s total recovery and the settlor’s proportionate liability. When approximating a plaintiff’s total recovery or the settling defendant’s proportionate liability, “judges should . . . not yearn for the unreal goal of mathematical certainty. Because the application of section 877.6 requires an educated guess as to what may occur should the case go to trial, all that can be expected is an estimate, not a definitive conclusion.” (North County Contractor’s Assn. v. Touchstone Ins. Services (1994) 27 Cal.App.4th 1085, 1090 (hereafter, North County).) “The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of the settlement would estimate the settlor’s liability to be.” (City of Grand Terrace, supra, 192 Cal.App.3d at p. 1262.)

Even though “an offer of settlement must bear some relationship to one’s proportionate liability, bad faith is not ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’ [Citation.]” (North County, supra, 27 Cal.App.4th at p.1090.) “Such a rule would unduly discourage settlements” and “convert the pretrial settlement approval procedure into a full-scale mini-trial.” (Tech-Bilt, supra, 38 Cal.3d at p. 499.) Rather, in order to meet the proportionality requirement, “all that is necessary is that there be a ‘rough approximation’ between a settling tortfeasor’s offer of settlement and his proportionate liability. [Citation.]” (North County, supra, 27 Cal.App.4th at pp. 1090-91.) In determining whether the settling defendant’s settlement figure is “within the ballpark” of his fair share of liability, the Court may rely on “the judge’s personal experience” and the experience of “experts in the field.” (Tech-Bilt, supra, 38 Cal.3d at p. 500.)

Additionally, “a court not only looks at the alleged tortfeasor’s liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.) [3]

Under the terms of the settlement, Plaintiffs agree to dismiss CISS in exchange for payment of $86,042.52, which is the balance of CISS' $100,000 burning limits policy. In exchange, Plaintiffs will release any and all claims that arise out of or relate to Plaintiffs' complaint as to CISS.

CISS argues it has little to no liability because the scope of its responsibility at the Performance was to “simply perform access control at designated locations by” Defendant C3. (Mot. at p.10.) CISS argues it did not provide security to the perimeter of the festival and did not perform searches for weapons. Non-Settling Defendants challenge CISS’s severance of “access control” from security responsibility. Non-Settling Defendants succeed. Non-Settling Defendants argue CISS was responsible for security and searches where the incident occurred and in the surrounding area, and CISS was out of compliance with its security services agreement. The Non-Settling Defendants properly call into question CISS’s claim that it has no liability. Non-Settling Defendants meet their burden to demonstrate CISS may have liability because CISS had some responsibility for security in the area where the stabbing occurred. For example, not only did CISS post guards and have roaming security guards at the Music Festival, CISS’s security guards were assigned to the Artist Search/Parking area in positions C43-C49 near the location where the incident occurred. (Williams Decl., at ¶ 7; Beattle Decl., at ¶ 5.)[4] CISS does not present substantial evidence that it has no liability.[5]

Moreover, insurance coverage issues persist. Non-Settling Defendants advance two arguments: 1) CISS may have claims against its insurance companies and/or 2) CISS failed to procure the required coverage. Either way, there may be more assets available from the insurance companies or CISS may have more exposure for failing to procure the required insurance amounts.

Because CISS’s argument that it has no liability whatsoever fails, CISS must present a reasonable estimate of Plaintiffs’ total recovery in order for the court to evaluate the appropriateness of the settlement. But CISS does not present an approximate figure of the Plaintiffs’ total recovery. While rough figures were presented regarding economic damages, CISS does not present any information regarding the total recovery, including non-economic damages. [6] NPB Global estimates that Plaintiffs will seek damages in the tens of millions of dollars, “if not more.” (NPB Global, Opp. at p. 3)[7] In a wrongful death case such as this, the figures may well exceed millions. (See Mattco Forge, Inc v. Arthur Young & Co. (1995) 38 Cal. App.4^th 1337, 1351[“In view of the absence of any substantial evidence to show the $250,000 value of the guarantee was within the reasonable range of Helmer & Neff’s proportionate liability, Young met its burden in attacking the settlement as lacking good faith”].)

The Non-Settling Defendants have met their burden to show CISS’s settlement figure is “not within the ballpark.” In this wrongful death action with significant financial exposure, CISS liability for failing to properly perform security control may far exceed the settlement amount. CISS’s liability for indemnity to Non-Settling Defendants may also be grossly disproportionate to the settlement amount. The first Tech-Bilt factor weighs heavily against CISS’s good faith settlement.

The allocation of settlement proceeds among plaintiffs is only relevant if there is more than one plaintiff. (See Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 968 (Cahill).) Here, there are two plaintiffs. The amount will be divided equally between Decedent’s mother and the Estate. CISS gave notice to any other objecting parties. This factor weighs in favor of the good faith settlement.

4. A Recognition That A Settlor Should Pay Less In Settlement Than He Would If

The Court expressly recognizes that a settlor should pay less in settlement that he would if he were found liable after trial. This factor weighs in CISS’s favor. (See Cahill, supra, 194 Cal.App.4th at p. 968.)

5. The Financial Conditions And Insurance Policy Limits Of Settling Defendants.

An exception to the proportionality requirement described above is that “a disproportionately low settlement figure is often reasonable” when the settling defendant is “relatively insolvent” and uninsured or underinsured. (Tech-Bilt, supra, 38 Cal.3d at p. 499; see Schmid v. Superior Court (1988) 205 Cal.App.3d 1244, 1245–6 [holding that “a settlement of a personal injury lawsuit is in ‘good faith[]’ . . . where a defendant pays the plaintiff the limit of the defendant’s insurance policy and has no assets, even though the amount paid in settlement is far less than the likely amount of a judgement against the defendant were the case to go to trial”]; see also County of Los Angeles v. Guerrero (1989) 209 Cal.App.3d 1149, 1157–8 [finding that the settling defendant’s “modest” financial condition and insurance limits “are necessarily controlling and effectively override the other Tech-Bilt factors”].)

However, the court must be able to ascertain the information regarding the settling party’s financial condition or insurance coverage. “The wealth or nonwealth of settling defendant is a factor for the trial court to consider under Tech-Bilt.” (Grand Terrace, supra, 192 Cal.App.3d at 1263-64 [“Nonsettlors assert that there was insufficient evidence presented as to settlor’s financial condition and he availability of additional money from USAA, both of which could have added to the pot, if available, to make up his proportionate share in settlement. As to this contention, we agree”].)[8]

Here, CISS fails to describe its financial condition. CISS’s stands pat on its claim that it has no liability and, hence, no need to disclose its financial information. As discussed above, if CISS has exposure, then without evidence of CISS’s financial condition, the court cannot evaluate CISS’s ability to pay an appropriate settlement amount in relationship to its liability. Moreover, as discussed above, there remain open questions regarding insurance issues. This factor weighs against a good faith determination.

              6. The Existence Of Collusion, Fraud, Or Tortious Conduct Aimed To Injure
                  The Interests Of The Non-Settling Defendants.

            “Any negotiated settlement involves cooperation, but not necessarily collusion. It becomes collusive when it is aimed to injure the interests of an absent tortfeasor. Although many kinds of collusive injury are possible, the most obvious and frequent is that created by an unreasonably cheap settlement.” (River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 996.) “Prevention of collusion is but a means to the end of preventing unreasonably low settlements which prejudice a nonparticipating tortfeasor. The price of a settlement is the prime badge of its good or bad faith. Construed in the light of [section 877.6’s] objectives, the good faith release clause extends the obligation of good faith beyond the parties to the negotiations, embracing an absent tortfeasor.” (Ibid.)

Here, there is no evidence to show the settlement agreement was made the product of collusion, fraud, or tortious conduct. However, the impact of the good faith settlement would be injurious to the Non-Settling Defendants’ rights of indemnification. The court has considered information regarding indemnification elsewhere. This factor weighs slightly in favor of a good faith settlement.

After weighing the relevant Tech-Bilt factors, the court finds the settlement between Plaintiffs and CISS does not pass the test for a good faith settlement.

Accordingly, CISS’ Motion for a Determination of a Good Faith Settlement is DENIED.

[1] NPB Global Consulting Group, Inc’s opposition contains redactions. NPB Global Consulting lodged an unredacted copy with the court. NPB Global’s filing does not comply with California Rules of Court (CRC), rules 2.550 and 2.551. However, given that other parties did not redact or file their pleading under seal, the court need not address the issues raised by NPB Global’s redactions.

[2] All statutory references are to the Code of the Civil Procedure unless otherwise specified.

[3] Certain Non-Settling Defendants’ ask the court to consider as part of the calculus the fact that they want to file a cross-complaint. That fact has no bearing on the court’s consideration of the issues herein. The arguments regarding CISS’s liability for indemnification, however, are relevant to the court’s consideration of the Tech-Bilt factors. Whether Non-Settling Defendants may prevail on a motion for leave to amend involves other factors and is left for another day.

[4] CISS objects to the court’s consideration of Beattle’s Declaration. CISS does not object to the admission of William’s Declaration. The court overrules the objections. Beatte lays sufficient foundation for the court’s consideration of his declaration.

[5] While the court certainly recognizes the vagaries of trial, nonetheless, CISS must concede it has some liability otherwise it would not be paying $86,042.52.

[6] The parties refer to Darrylene’s economic damages. In a wrongful death action, the plaintiff may recover the following economic damages for the death of the decedent: financial support, loss of gifts or benefits, funeral and burial expenses, and the reasonable value of household service that the decedent would have provided. (CACI No. 3921.) A plaintiff may also recover non-economic damages for loss of love, companionship, comfort, care, assistance protection, affection, society, and moral support. (Id.) In fact, in their Prayer for Relief Plaintiffs seek: “non-economic damages suffered by Plaintiff Darrylene Corniel, including, but not limited to, loss of love, affection, care, society, service, comfort, support, right to support, companionship, solace or moral support, expectations of future support and counseling, other benefits and assistance of Decedent Darrell Caldwell” (FAC, Prayer for Relief, ¶ 1.) and “non-economic damages suffered by Decedent Darrell Caldwell as a result of the injuries he sustained prior to and at his death, including, but not limited to, pain and suffering causing shock and injury to his nervous system in an amount in excess of the jurisdictional minimum, according to proof pursuant to California Code of Civil Procedure § 377.34[.]” (FAC, Prayer for Relief, ¶ 3.)

[7] With respect to non-economic damages, Civil Code section 1431.2 states that “each defendant shall be liable only for the amount of non-economic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault…” If, as the Non-Settling Defendants propose and their evidentiary submission supports, CISS may bear some responsibility and liability for breaches in security, a reasonable evaluation of CISS’s potential exposure to liability based upon the circumstances of the case may be grossly disproportional to the settlement amount.

[8] The court is unaware if Non-Settling Defendants attempted to obtain discovery of CISS’s financial condition.