Judge: Michael E. Whitaker, Case: 23SMCV03266, Date: 2025-03-26 Tentative Ruling

Case Number: 23SMCV03266    Hearing Date: March 26, 2025    Dept: 207

TENTATIVE RULING – NO. 1

MOTION

This case arises from allegations that Plaintiff was attacked and injured by a dangerous dog. 

On July 20, 2023, Plaintiff Stuart Smith (“Plaintiff”) filed suit against Defendants Kirby Kotler (“Kotler”) and Malibu Veterinary Clinic, Inc. (“Vet”) alleging five causes of action for (1) strict liability (common law); (2) strict liability (statutory); (3) negligence per se; (4) premises liability; and (5) general negligence.  In turn, Kotler and Vet cross-complained against each other for indemnity, etc. 

Vet concurrently moves for a determination of good faith settlement.  In connection with that motion, Vet seeks to file documents pertaining to and referencing the dollar amount of the parties’ settlement under seal.  The motion to seal is unopposed.

LEGAL STANDARD

            Unless confidentiality is required by law, court records are presumed to be open to the public, pursuant to a potent “open court” policy undergirded by the First Amendment and favoring the public nature of court proceedings.¿ (Cal. Rules of Court, rule 2.550(c); see¿NBC Subsidiary (KNBC-TV), Inc. v. Superior Court¿(1999)¿20 Cal.4th 1178, 1199-10.)¿ Consequently, pleadings, motions, discovery documents, and other papers may not be filed under seal merely by stipulation of the parties; filing under seal requires a court order.¿ (Cal. Rules of Court, rule 2.551(a); see¿H.B. Fuller Co. v. Doe¿(2007) 151 Cal.App.4th 879, 888.)¿

A sealing order must be sought by means of a motion (or application) and accompanied by a memorandum of points and authorities, as well as evidence and testimony containing facts sufficient to justify the mandatory findings required to support a sealing order.¿ (Cal. Rules of Court, rules 2.550(d) & 2.551(b).)¿ The proponent of the sealing order must also conditionally lodge the¿unredacted¿matter to be sealed with the court.¿ (Cal. Rules of Court, rule 2.551(b)(4).)¿

To grant a motion to seal, a trial court must expressly find that: (1) an overriding interest exists that overcomes the right of public access to the record; (2) the overriding interest supports sealing the records; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no¿less restrictive means exist to achieve the overriding interest.¿ (Cal. Rules of Court, rule 2.550 (d).) “If the trial court fails to make the required findings, the order is deficient and cannot support sealing.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th  471, 487; see also In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1087 [“express findings must be made to seal records”].)

DISCUSSION

Plaintiff seeks to publicly file a redacted version of the parties’ settlement agreement with the dollar amount of the settlement redacted from the public record.  However, in general, the amount of money a person receives in a court-approved settlement is not a private fact deserving protection, absent “exceptional circumstances upon a showing of compelling reasons” to the contrary.  (Copley Press, Inc. v. Superior Court (1998) 63 Cal.App.4th 367, 376.)

Here, Vet argues only that the parties agreed that this would remain confidential and that disclosure of the settlement amount would damage Vet’s business interests.  That the parties have agreed to keep the settlement amount confidential does not create “exceptional circumstances” that override the public’s interest in access to public records, especially where, as here, the settlement must be approved by the Court.  Nor does Vet elaborate on how its business interests would be damaged, or provide any supporting authority or evidence.

CONCLUSION AND ORDER

            Therefore, having found no basis supporting the request to seal, the Court denies Vet’s motion to seal in its entirety.  The unredacted versions of the documents shall be publicly filed on the Court’s docket. 

            Vet shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  March 26, 2025                              ___________________________

                                                                  Michael E. Whitaker

                                                                  Judge of the Superior Court

TENTATIVE RULING – NO. 2

BACKGROUND

This case arises from allegations that Plaintiff was attacked and injured by a dangerous dog. 

On July 20, 2023, Plaintiff Stuart Smith (“Plaintiff”) filed suit against Defendants Kirby Kotler (“Kotler”) and Malibu Veterinary Clinic, Inc. (“Vet”) alleging five causes of action for (1) strict liability (common law); (2) strict liability (statutory); (3) negligence per se; (4) premises liability; and (5) general negligence.  In turn, Kotler and Vet cross-complained against each other for indemnity, etc. 

Vet now moves for a determination of good faith settlement.  Kotler opposes the motion and Vet replies.

LEGAL STANDARD – GOOD FAITH SETTLEMENTS

Under section 877.6 of the Code of Civil Procedure,[1]  “[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).)  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.)  “Practical considerations obviously require that the [trial court’s] evaluation [of the settlement] be made on the basis of information available at the time of settlement.”  (Id. at p. 499.) 

“The party asserting the lack of good faith . . . [is] permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to [the above] factors as to be inconsistent with the equitable objectives of [Section 877.6].  Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.”  (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500.) 

ANALYSIS

A.    APPLICATION OF THE TECH-BILT FACTORS TO THE FACTS OF THE CASE

1.     FIRST FOUR FACTORS: (1) A ROUGH APPROXIMATION OF PLAINTIFF’S TOTAL RECOVERY; (2) THE SETTLOR’S PROPORTIONATE LIABILITY AND THE AMOUNT PAID IN SETTLEMENT; (3) ALLOCATION AMONG PLAINTIFFS; and (4) RECOGNITION THAT SETTLOR PAYS LESS IN SETTLEMENT

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).) 

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.)

As for the second factor, ‘“[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the defendant’s liability to be.’  [Citation.]”  (Tech-Bilt, supra, 38 Cal.3d at p. 499.)  However, 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. 1090–1091.)  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.)

Here, Vet argues that the settlement is “within a reasonable range of proportionate liability” because it is “representative of the questionable merits of Plaintiff’s theory of liability against [Vet]” which “relate to a small leash and the door being left open.”  Further, Vet points out that the settlement agreement was reached through arm’s length negotiations at mediation.  (Nelms Decl.¶¶ 5-6.)

Kotler opposes, arguing that Vet replaced the dog’s ordinary leash with a short nylon one, which slipped out of Kotler’s hand, and the dog ran out of the building through an open door where it attacked another dog, when Plaintiff was injured trying to separate the fighting dogs.  As a result, Plaintiff has undergone a left middle finger amputation, for which medical treatment remains ongoing.  (Petrosyan Decl. ¶ 18.)  The total cost assessment of the Life Care Plan is $806,680.02.  (Petrosyan Decl. ¶ 20.)  In December 2024, Plaintiff’s demand was $2.5 million from Kotler and Vet.  (Petrosyan Decl. ¶ 21.)  Now, Plaintiff and Vet seek to settle the amount for 10% of that demand. 

In reply, Vet acknowledges the $2.5 million demand, but points out that demand equals Kotler’s insurance policy limit.  Vet further argues that Plaintiff’s past medical expenses are less than $30,000, and even under a worst-case scenario, the Vet’s proportionate liability is no more than 10%, making the settlement amount still in line within the Vet’s proportionate liability.

The Court disagrees that the Vet’s proportionate liability would be no more than 10%.  It is alleged that the dog escaped through an open door of the vet clinic because of a short nylon leash the Vet placed on the dog before handing it back to Plaintiff.  Thus, the Vet’s conduct is arguably a substantial factor in causing Plaintiff’s alleged injuries.

Nevertheless, it appears Plaintiff’s damages may be more closely approximated at somewhere around $1,000,000.  The proposed settlement amount is therefore approximately 25% of the reasonable approximation of Plaintiff’s total damages, as they stand today.  Given that some fault likely rests with Kotler, as the dog owner who physically let the dog loose, and some fault likely rests with Plaintiff, for trying to break up the dog fight, and in light of the recognition that the settling party should pay less than if the matter were taken to trial, the Court finds that the settlement amount is within a reasonable range of the Vet’s proportionate liability.

2.     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.) 

No party has argued or presented any evidence of collusion, fraud, or tortious conduct.

CONCLUSION AND ORDER

Therefore, having found the proposed settlement amount is within a reasonable range of Vet’s proportionate liability, and no evidence of collusion, fraud, or tortious conduct, the Court grants Vet’s motion for Good Faith Settlement. 

Vet shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith. 

DATED:  March 26, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court