Judge Lynette Gridiron Winston, Case Number: 23PSCV00104, Date: 2024-09-17 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV00104, Date: 2024-09-17 Tentative Ruling

Case Number: 23PSCV00104 Hearing Date: September 17, 2024 Dept: 6

CASE NAME: Roy Nara Kwon, et al. v. Burrtec Waste Industries, Inc., et al.

Defendant Loan Pham dba Pho Vina Noodle & Grill’s Motion for Determination of Good Faith Settlement

TENTATIVE RULING

The Court GRANTS Defendant Loan Pham dba Pho Vina Noodle & Grill’s motion for determination of good faith settlement. The Court will sign the proposed order submitted with the motion.

Defendant Loan Pham dba Pho Vina Noodle & Grill is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a property damage case. On January 12, 2023, plaintiffs Roy Nara Kwon and Mihavana Cigars, Inc. (collectively, Plaintiffs) filed this action against defendants Burrtec Waste Industries, Inc., VEJ Pomona 5, LP, Loan Pham dba Pho Vina Noodle & Grill (Loan Pham), Homage Brewing, Inc. (collectively, Defendants), and Does 1 through 100, alleging causes of action for negligence, trespass, nuisance, and violation of Health & Safety Code § 13007.

On August 16, 2024, Defendant Loan Pham moved for determination of good faith settlement. The motion is unopposed.

LEGAL STANDARD

Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005. Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue to be made before the commencement of the trial of the action, or before the verdict or judgment if settlement is made after the trial has commenced.

(Code Civ. Proc., § 877.6, subd. (a).)

[T]he intent and 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 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. [Citation.] Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. “[A] defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be.” [Citation.] The party asserting the lack of good faith, who has the burden of proof on that issue [citation], should be permitted to demonstrate, if he can, that the settlement is so far “out of the ballpark” in relation to these factors as to be inconsistent with the equitable objectives of the statute.

(Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499-500 (Tech-Bilt).)

DISCUSSION

Defendant Loan Pham moves for determination of good faith settlement based on a settlement with Plaintiffs for $100,000.00. Loan Pham contends the settlement was made in good faith after the recent completion of mediation. Loan Pham contends Plaintiffs’ total likely recovery is highly contested but they are nevertheless receiving the maximum available under Loan Pham’s insurance policy limits. Loan Pham disputes liability and notes that $100,000.00 is more than Loan Pham would be paying if Loan Pham prevailed on a motion for summary judgment, but is settling in an effort to avoid further legal costs and the burdens of continued litigation. Loan Pham notes that allocation of the settlement proceeds between Plaintiffs would be determined by Plaintiffs, and contends that Loan Pham’s liability would likely be more than $100,000.00 if Plaintiffs were to succeed at trial. Loan Pham further indicates that Loan Pham’s financial condition is not an issue here because the settlement amount is not disproportionately low, and Loan Pham’s insurance carrier has agreed to pay the policy limits of $100,000.00. Loan Pham also contends there is no collusion, fraud, or tortious conduct aimed at the non-settling Defendants.

The Court finds Loan Pham’s motion well taken. The Court construes the lack of opposition from the other parties to this action as a tacit admission that Loan Pham’s motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10; see also Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 [“Contentions are waived when a party fails to support them with reasoned argument and citations to authority. [Citation.]”]) The Court also notes the lack of opposition because there is no argument or evidence from any of the parties here that this settlement was made in bad faith, and the party asserting bad faith bears the burden of proof. (Tech-Bilt, supra, 38 Cal.3d at pp. 499-500.) Additionally, there is no indication that this settlement was the result of collusion, fraud, or tortious conduct aimed at the non-settling Defendants.

Moreover, the Court finds the amount of $100,000.00 to be fair and reasonable in light of the contested issues between the parties with respect to Loan Pham’s liability. There does not appear to be any clear indication one way or the other as to what Loan Pham’s liability would be in this matter if Loan Pham continued in this litigation, and Loan Pham’s insurer’s agreement to pay the maximum policy limit is a reasonable compromise between the parties.

Based on the foregoing, the Court GRANTS the motion.

CONCLUSION

The Court GRANTS Defendant Loan Pham DBA Pho Vina Noodle & Grill’s motion for determination of good faith settlement. The Court will sign the proposed order submitted with the motion.

Defendant Loan Pham DBA Pho Vina Noodle & Grill is ordered to give notice of the Court’s ruling within five calendar days of this order.