Judge: Lisa R. Jaskol, Case: 21STCV11041, Date: 2023-10-02 Tentative Ruling

Case Number: 21STCV11041    Hearing Date: February 6, 2024    Dept: 28

Having considered the moving papers and notice of non-opposition, the Court rules as follows. 

BACKGROUND 

On March 22, 2021, Plaintiff Astgik Termendzhyan (“Plaintiff”) filed this action against Defendants Whole Foods Market California, Inc. and Does 1-25 for negligence. 

On April 22, 2021, Plaintiff amended the complaint to include Defendant Mrs. Gooch’s Natural Food Markets, Inc. as Doe 1. 

On May 4, 2021, Defendant Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market (“Mrs. Gooch’s”) filed an answer. 

On July 15, 2021, Plaintiff amended the complaint to include Defendant Schindler Elevator Corporation as Doe 2 (“Schindler”).  On August 20, 2021, Schindler filed an answer. 

On July 28, 2022, Plaintiff amended the complaint to include Defendant 14311 Ventura Development, LLC as Doe 3 (“Ventura”). 

On September 6, 2022, Ventura filed an answer and a cross-complaint against Cross-Defendants Mrs. Gooch’s and Roes 1-20 for indemnification, apportionment of fault, declaratory relief, and express indemnity.  On September 9, 2022, Mrs. Gooch’s filed an answer to Ventura’s cross-complaint. 

On September 8, 2022, Mrs. Gooch’s filed a cross-complaint against Cross-Defendants Ventura and Roes 1-25 for express indemnity, implied contractual indemnity, equitable indemnity, and declaratory relief.  On October 7, 2022, Ventura filed an answer to Mrs. Gooch’s cross-complaint. 

On June 7, 2023, Schindler filed a cross-complaint against Cross-Defendants P&H Casters Company, Inc. (“P&H Casters”), Gliderite, and Roes 1-25 for equitable indemnity, declaratory relief, and contribution.  On September 25, 2023, Schindler amended the cross-complaint to include Cross-Defendant Gatekeeper Systems, Inc. as Roe 2 (“Gatekeeper”). On December 18, 2023, Gatekeeper filed an answer to Schindler’s cross-complaint. 

On August 24, 2023, P&H Casters filed an answer to Schindler’s cross-complaint and a cross-complaint against Cross-Defendants Moes 1-100 for indemnification, apportionment of fault, and declaratory relief. 

On August 29, 2023, Plaintiff amended the complaint to include Defendant P&H Castors as Doe 4. 

On September 8, 2023, the clerk entered Gliderite’s default on Schindler’s cross-complaint.  On October 5, 2023, the Court vacated the default based on the stipulation of Schindler and Gliderite. On October 17, 2023, Gliderite filed an answer to Schindler’s cross-complaint. 

On October 23, 2023, Mrs. Gooch’s and Ventura (“Moving Defendants”) filed a notice of settlement and application for determination of good faith settlement to be heard on February 6, 2024.  On January 3, 2024, P&H Casters filed a notice of non-opposition.  No party has filed an opposition. 

On January 30, 2023, Schindler filed an application for good faith settlement determination but did not set the matter for hearing. 

Trial is currently set for September 3, 2024. 

PARTIES’ REQUESTS 

Moving Defendants ask the Court find their settlement with Plaintiff is in good faith. 

LEGAL STANDARD  

Code of Civil Procedure section 877.6, subdivision (a)(2), states that “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 issue of the good faith of a settlement may be determined by the court on the basis of 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).)  

“The party asserting the lack of good faith shall have the burden of proof on that issue.”  (Code Civ. Proc., § 877.6, subd. (d).) 

          In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499 (Tech-Bilt), the California Supreme Court identified the following nonexclusive factors courts must 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 evaluation of a settlement is “made on the basis of information available at the time of settlement.”  (Tech-Bilt, supra, 38 Cal.3d at p. 499.) 

DISCUSSION  

A.   The complaint 

The complaint alleges that on or about January 19, 2021, Plaintiff fell and was injured on the escalator ramp of the Whole Foods market in Sherman Oaks (the “premises”) due to Defendants’ negligence. 

B.   Moving Defendants’ application 

Moving Defendants submitted a declaration from Mrs. Gooch’s attorney Matthew E. Bennett (“Bennett”) to support their application for a good faith settlement determination.  Bennett states the following: 

Mrs. Gooch’s owns and operates the Whole Foods Market store at the premises but does not own the real property or the escalator ramp (which Bennett refers to as a “moving walkway”). Under the lease agreement for the premises, Mrs. Gooch’s was responsible for repairing and maintaining the moving walkway.  Ventura owns the real property and is Mrs. Gooch’s landlord. 

Ventura hired Schindler to design, build, and construct all vertical transportation at the subject premises, including the moving walkway. (Bennett Dec. ¶ 13.)  Mrs. Gooch’s hired Schindler to maintain and repair the moving walkway.  (Bennett Dec. ¶¶ 5, 9-10, 14.)  Schindler allegedly manufactured, installed, and designed the moving walkway.  In addition, it was the licensed repair and maintenance company for the moving walkway.  Schindler did the routine maintenance and inspection for the time period covering the incident. (Bennett Dec. ¶ 29.) 

P&H Casters allegedly manufactured parts of the shopping cart that was involved in Plaintiff’s alleged incident.  (Bennett Dec. ¶ 30.) 

Mrs. Gooch’s and Ventura deny that they breached their duty to use reasonable care as a manager, possessor, controller, operator, owner, and/or lessor of the moving walkway and deny any liability for the alleged incident.  Mrs. Gooch’s and Ventura also deny the nature and extent of Plaintiff’s injuries. (Bennett Dec. ¶¶ 15-17.) 

Mrs. Gooch’s, Ventura, and Plaintiff have settled the claims between them amicably based on their attorneys’ valuations of this case in light of the potential liability and damages issues. The settlement was entered into after, and as a result of, multiple arm’s length negotiations between the respective counsel for the Moving Defendants and Plaintiff., taking place over many months. (Bennett Dec. ¶¶ 18-19.) 

Mrs. Gooch’s and Ventura have agreed to pay Plaintiff $850,000.00 in exchange for a dismissal with prejudice, with each side bearing their own fees and costs.  Mrs. Gooch’s and Ventura have agreed to dismiss their cross-complaints against each other, with prejudice, with each side bearing their own fees and costs. The settlements between Mrs. Gooch’s, Ventura, and Plaintiff are contingent on a determination that the settlements are in good faith under Code of Civil Procedure section 877.6. (Bennett Dec. ¶¶ 20-22.) 

C.   Unopposed applications for good faith settlement determination 

In City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251 (City of Grand Terrace), the Court of Appeal observed: 

“[O]f the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients' resources. It must also be remembered that Tech-Bilt was decided on a contested basis. We are unaware of any reported decision which has reversed an uncontested good faith determination and we, therefore, conclude that only 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. 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.”  (City of Grand Terrace, supra, 192 Cal.App.3d at p. 1261.) 

          Here, Moving Defendants have submitted a barebones motion which sets forth the ground of good faith and is accompanied by a declaration which sets forth a brief background of the case.  No opposition has been filed.  Therefore, the Court grants the application. 

CONCLUSION 

The Court GRANTS the application for a determination that the settlement between Plaintiff Astgik Termendzhyan and Defendants Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market and 14311 Ventura Development, LLC was made in good faith. The Court dismisses all pending and future claims against Defendants Mrs. Gooch’s Natural Food Markets, Inc. dba Whole Foods Market and 14311 Ventura Development, LLC by the parties served with this motion (to the extent those claims arise from the facts giving rise to this case), including cross-complaints for equitable indemnity. 

Moving parties are ordered to give notice of this ruling. 

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