Judge: Steven A. Ellis, Case: 21STCV13451, Date: 2023-11-29 Tentative Ruling

Case Number: 21STCV13451    Hearing Date: December 6, 2023    Dept: 29

Tentative

The Court determines that the settlement between Plaintiff and Thomas Slater dba Atomic Concrete Pumping is in good faith under Code of Civil Procedure section 877.6.

Background

This case arises out of an alleged incident outside a Kaiser facility on De Soto Avenue in Woodland Hills, California on November 14, 2019. Plaintiff Katheryn Heukrodt (“Plaintiff”) alleges that she was walking next to a construction or demolition or repair project “when an unexpected powerful explosion occurred.” (Complaint, ¶ 4.) “The blast force was so powerful so as to cause plaintiff’s body and person to be struck by material propelled by the force of the blast throwing the plaintiff through the air causing plaintiff’s body to come to very abrupt and forceful stop when it struck the cement sidewalk.” (Ibid.)

On April 8, 2021, Plaintiff filed the complaint asserting one cause of action for negligence and one cause of action for “res ipso loquitor” against Defendants Kaiser Foundation Hospitals; Kaiser Foundation Hospital Woodland Hills California; McCarthy Building Company, Inc.; Doe Cement Pumping Company; Doe Subcontractor; and Does 1-200.

McCarthy Building Companies, Inc. (erroneously sued as McCarthy Building Company, Inc.) (“McCarthy”) and Kaiser Foundation Hospitals (“Kaiser”) each filed an answer on August 25, 2021. The same day, McCarthy and Kaiser each filed a cross-complaint against Harris Concrete Pumping; Dustin C. Harris; Atomic Concrete Pumping; Thomas R. Slater; and Roes 1-50. McCarthy and Kaiser each submitted a First Amended Cross-Complaint on April 28, 2022.

On January 10, 2022, Thomas Slater dba Atomic Concrete Pumping (erroneously sued as Thomas R. Slater and as Atomic Concrete Pumping) (“Atomic”) filed answers to the cross-complaints of McCarthy and Kaiser. Atomic also filed a cross-complaint against Harris Concrete Pumping; Dustin C. Harris; and Moes 1 through 100. Atomic amended the Cross-Complaint on June 9, 2022, to name Kaiser as Moe 1, McCarthy as Moe 2, Jezowski & Markel Contractors, Inc. aka J&M Concrete Contractors (“J&M”) as Moe 3, and Brandsafway Services, LLC aka Safway Services, LLC (“Brandsafway”) as Moe 4.

On June 9, 2022, Dustin Harris dba Harris Concrete Pumping (erroneous sued as Dustin C. Harris and Harris Concrete Pumping) (“Harris”) filed answers to the cross-complaints of McCarthy, Kaiser, and Atomic. Harris also filed a cross-complaint against McCarthy, Kaiser, Atomic, J&M, Brandsafway, and Zoes 1 through 50. Harris also filed a cross-complaint against Brandsafway and Joes 1 through 20 on August 9, 2023.

On June 22, 2023, Plaintiff amended the complaint to name Atomic as Doe 101, J&M as Doe Subcontractor, Harris as Doe Cement Pumping Company, Brandsaway Services, LLC as Doe 111, and Brandsafway as Doe 112.

On August 1, 2023, Brandsafway answered the complaint and filed a cross-complaint against Atomic, Harris, and Zoes 1 through 10.

On September 14, 2023, Atomic filed a notice of settlement and application for good faith settlement. The basic terms of the settlement, according to Atomic, are that Atomic will pay Plaintiff $1 million and Plaintiff will give Atomic a full release.

On October 9, 2023, McCarthy and Kaiser filed a motion to challenge the good faith of Atomic’s settlement. The motion was set for hearing on November 29.

Also on October 9, Harris filed a motion to challenge the good faith of Atomic’s settlement. The motion was set for hearing on December 6.

Brandsafway filed a joinder to the motion of McCarthy and Kaiser on October 27.

Atomic filed oppositions to the motions and to the joinder on November 14 and 20.  McCarthy and Kaiser filed replies and objections on November 20. Harris filed a reply on November 29.

On November 29, the Court, on its own motion, continued the hearing on the motion filed by McCarthy and Kaiser to December 6, so that both motions could be heard at the same time.

Legal Standard

In a case involving two or more alleged joint tortfeasors, a party may seek a court order under Code of Civil Procedure section 877.6 determining that a settlement between the plaintiff and one or more of the alleged tortfeasors is in good faith. A judicial determination of good faith “bar[s] 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.” (Code Civ. Proc. § 877.6(c).)

In evaluating whether a settlement has been made in good faith, courts consider the following factors, as set forth by the California Supreme Court in the landmark case Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488:

             1) “a rough approximation of plaintiffs’ total recovery”;

             2) “the settlor’s proportionate liability”;

            3) “the amount paid in settlement”;

      4) “the allocation of the settlement proceeds among plaintiffs”;

5) “a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial”;

             6) the settling party's “financial conditions and insurance policy limits”;

7) any evidence of “collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

(Id. at 499.) “Practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.” (Ibid.)

The “good faith” concept in Code of Civil Procedure section 877.6 is a flexible principle imposing on reviewing courts the obligation to guard against the numerous ways in which the interests of nonsettling defendants may be unfairly prejudiced. (Rankin v. Curtis (1986) 183 Cal. App. 3d 939, 945.) Accordingly, under Tech-Bilt, the party asserting the lack of “good faith” may meet this burden by demonstrating that the settlement is so far "out of the ballpark" as to be inconsistent with the equitable objectives of the statute. (Tech-Bilt, supra, 38 Cal.3d at 499-500.) Such a demonstration would establish that the proposed settlement was not a “settlement made in good faith” within the terms of section 877.6. (Ibid.)

The Supreme Court explained that Code of Civil Procedure section 877.6 is designed to further two equitable policies:

1) encouragement of settlements; and

2) equitable allocation of costs among joint tortfeasors. 

(Ibid.) 

Those policies would not be served by an approach which emphasizes one to the virtual exclusion of the other. (Ibid.) Accordingly, a settlement will not be found in good faith unless the amount is reasonable in light of the settling tortfeasor's proportionate share of liability. (Std. Pac. of San Diego v. A. A. Baxter Corp. (1986) 176 Cal. App. 3d 577, 589.) Or, as the California Supreme Court has stated, 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.” (Tech-Bilt, supra, 38 Cal.3d at 499.)

When a motion seeking a determination under Code of Civil Procedure section 877.6 is not opposed, the burden on the moving parties to show that the settlement was made in good faith is slight. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261 [holding that a “barebones motion” including a declaration setting forth “a brief background of the case is sufficient”].)

When a good faith motion is contested, however, the moving parties have the initial burden of producing evidence in support of the requested good faith determination. (Id. at pp. 1261-1262.) “Section 877.6 and Tech-Bilt require an evidentiary showing, through expert declarations or other means, that the proposed settlement is within the reasonable range permitted by the criterion of good faith.” (Mattco Forge v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1351.) “Substantial evidence” is required. (Id. at p. 1352.) A declaration from a settling defendant’s attorney that states, in conclusory fashion, that the client has little or no share of the liability may not be sufficient. (Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834-35; see also 3 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2023) ¶¶ 12:774, 12:872-873.) 

The ultimate burden of persuasion is on the party opposing the good faith determination.  The “party asserting a lack of good faith shall have the burden of proof on that issue.”  (Code Civ. Proc. § 877.6(d); see also 3 Weil & Brown, supra, at ¶ 12:875.)

Objections

Kaiser and McCarthy present 31 objections. The Court has carefully considered these objections. They are all OVERRULED.

Atomic objects to Brandsafway’s joinder as untimely. That objection is OVERRULED.

Discussion

This case involves an accident at a large construction site at a Kaiser facility. Kaiser owned the premises. Kaiser hired McCarthy as the general contractor for the project. McCarthy hired J&M as the concrete subcontractor. J&M hired Harris to supply concrete equipment.  Harris hired Atomic to supply and operate concrete pumping equipment.

Separately, McCarthy hired Brandsafway to provide a barrier between the site of the construction project and outside areas, including where pedestrians traveled.

There is evidence indicating that Atomic pumped pressurized concrete into a hose owned and provided by Harris. The hose burst. Some debris from the burst hose dislodged plywood from the pedestrian barrier, and that plywood from the pedestrian barrier struck Plaintiff.

The various parties now point fingers of blame at each other. Kaiser, McCarthy, and Harris assert that Atomic is perhaps the most culpable party, as they allege (among other things) that Atomic pumped pressurized concrete into a hose without first conducting a proper inspection of the hose. Atomic contends that Harris is perhaps the most culpable party, as Harris was the owner of the (possibly defective) hose that burst. Atomic also contends (among other things) that Brandsafway improperly installed the pedestrian barrier and that McCarthy (as the general contractor) and Kaiser (as the property owner) both had overarching and primary duties to ensure the safety of the activities at the construction site.

It is against this factual background (which the Court has merely briefly summarized above) that the Court must now consider and weigh the various factors set forth in Tech-Bilt and its progeny to determine whether Atomic’s settlement with Plaintiff is a good faith settlement under Code of Civil Procedure section 877.6.

1.                  Rough approximation of Plaintiff’s total recovery.

Plaintiff attributes a wide range of injuries to the incident, including (but not limited to) traumatic brain injury, inability concentrate, emotional behavioral decline/changes, psychological, speech, depression, anxiety, speech , left sinus Tarsi Syndrome, left shin, left knee, left hip, left buttock, lower back/pelvis, left lower back to left upper back, left shoulder, neck, base of neck, base of head, head, ears, and stomach/GI. (Barnett Decl., Exh. 12, Resp. to Form Interrogatory 6.2.) She is still suffering from chronic and acute pain in her hip, lower back/pelvis, lower back to upper back, shoulder, neck, and head some of which was made worse by walking or other movement; experiencing difficulty walking and limbing stairs; and suffering from cognitive decline and speech difficulty. (Id., Resp. to Form Interrogatory 6.3; see also id., Exh. 10, Resp. to Special Interrogatory 58.) Treatment is ongoing. (Id., Exh. 12, Resp. to Form Interrogatory 6.4.)

Plaintiff is currently 72 years old. (Id., Resp. to Form Interrogatory 2.3.) She states that because of the incident she was forced to retire from her job as a high school teacher. (Id., Resp. to Form Interrogatory 2.7, 8.5, 8.6.)

McCarthy and Kaiser present the following breakdown of Plaintiff's alleged damages, based on discovery responses provided by Plaintiff in February and October 2022:

(Mem. at p. 8; Barnett Decl., Exh. 11, Resp. to Special Interrogatories 2-5, 8-10, 13-14; Exh. 12, Resp. to Form Interrogatories 8.7, 8.8.)

These are the damages claimed by Plaintiff in her discovery responses. Her likely recovery at trial, of course, may be significantly less. In particular, Plaintiff’s claimed future medical expenses of $5 million seem particularly high, given the total claimed medical expenses of approximately $240,000 in the three years immediately after the incident. In addition, $800,000 in claimed past economic losses (separate from and in addition to her claimed wage loss) appears uncertain at best.

After carefully considering all of the evidence presented, as well as the arguments from all parties, the Court finds that the rough approximation of Plaintiff’s likely total recovery is in the range of $4 million to $6 million.  

2.                  The settlor’s proportionate liability.

This factor is strongly disputed by all parties.

Atomic contends that its culpability is limited to 0-10 percent. (Opp. at 8.) It attaches primarily culpability to Kaiser and McCarthy, as the property owner and general contractor, with a combined share of 60 percent. The remainder, according to Atomic, is divided among Harris (10 to 20 percent), Brandsafway (10 percent), and J&M (10 percent).

Atomic states that apparently neither Harris nor anyone else inspected the hose prior to the accident. (Barnett Decl., Exh. 5, at pp. JM97-JM98.) The hose was expected to carry a considerable load of pressurized concrete. (Harada-Orosz Decl., Exh. 7, at 19:8-22, 31:3-5.) Atomic believed that Harris had inspected its hoses prior to using them. (Barnett Decl., Exh. 8, at p. 3.) Harris testified that under the circumstances, it would have been reasonable for Atomic to assume that the hoses had already been inspected and were safe to use. (Harada-Orosz Decl., Exh. 7, at 108:4-17.) Harris stated unequivocally in his deposition that he did not believe that Atomic was responsible. (Id., at 93:13-15; see also id., at 87:1-3.)

McCarthy’s Regional Safety Manager, Fernando Galicia, testified that “as the safety person for McCarthy on the job site,” he was “responsible for the overall job safety.” (Id., Exh. 5, at 19:14-17.) That includes, he testified, “looking to make sure that the contractors are doing things in a safe manner,” and that he was “responsible to insure that the concrete was being poured in a manner that was safe for the project site.” (Id., at 20:17-25, 24: 24:9-21.) Mr. Galicia did not inspect the hose before the accident; he “let the experts do the inspection; in this case, Harris.” (Id., at 62:8-15.) After the accident, Mr. Galicia determined that there was significant wear in the hose and that the hose” should not have been used on the job site.” (Id., at 115:4-10.)

Atomic also asserts that Brandsafway improperly installed the pedestrian barrier, which contributed to the failure of the barrier in the incident. (Id., Exh. 7, at 87:1-19, 93:13-19.) An incident report signed five days after the incident stated that the plywood “was poorly secured … resulting in plywood [being] easily detached with the impact of concrete striking pedestrian.” (Barnett Decl., Exh. 5, at p. JM97.)

Kaiser, McCarthy, and Harris have a much different view. They note that it was Atomic who pumped the pressurized concrete into the hose that burst without inspecting the hose. (Barnett Decl., Exh. 6, at 91:13-16; Exh. 8 at p. 3.) The incident report generated in the days after the incident attributed the cause to “[u]sing unsafe damaged hose to pour concrete” and to the absence of any “protocol in place to inspect pump equipment prior to use to determine if equipment was safe.” (Barnett Decl., Exh. 5, at pp. JM97-JM98.)

The Court has carefully reviewed the evidence presented, including, but not limited to, the evidence summarized above. Based on that review, the Court concludes that each of the parties bears some degree of culpability for Plaintiff’s injuries. Kaiser, McCarthy, and J&M bear some degree of culpability for failing to supervise for safety the activities occurring on its premises (Kaiser), for failing to supervise for safety the activities on a job site on which it was the general contractor (McCarthy), and for failing to supervise for safety the activities of its subcontractor (J&M). Harris appears to bear the greatest degree of culpability, as it supplied the defective hose and did not inspect it prior to use. Atomic bears some culpability, as it did not inspect the hose prior to using it to pump the pressurized concrete, but, based on the deposition testimony of Harris, the Court concludes that Harris’s culpability is significantly greater than Atomic’s. Finally, Brandsafway shares some degree of culpability as well, as at least some witnesses identified defects in the fence as contributing significantly to Plaintiff’s injury.

On this record, the Court concludes that Atomic’s proportion of the total liability is in the range of 25 to 30 percent.

Multiplying that percentage by the Court’s finding regarding the rough approximation of Plaintiff’s likely total recovery ($4 million to $6 million) produces a range of proportionate liability for Atomic somewhere between $1.0 million at the low end and $1.8 million at the high end.

3.                  The amount paid in settlement.

Atomic has agreed to pay $1 million in settlement.

4.                  The allocation of the settlement proceeds among plaintiffs.

As there is only one plaintiff, this factor does not apply here.

5.                  A recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. 

This factor supports a good faith determination.

6.                  The settling party’s financial conditions and insurance policy limits.

Atomic has substantial additional insurance coverage available for this accident. It has not settled for the full extent of insurance policy limits or the full extent of its ability to pay.

7.                  Any evidence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.

There is no evidence of any fraud or collusion. The settlement was reached after negotiation and a Code of Civil Procedure section 998 offer.

Taking all of these factors into account, the Court finds that the settlement between Plaintiff and Atomic is in good faith under Code of Civil Procedure section 877.6. The amount of the settlement appears to be less than Atomic’s likely proportionate liability, but that is to be expected in a settlement, particularly the first settlement in a multi-defendant case. Although Atomic had additional insurance coverage available, nothing in Tech-Bilt or its progeny requires a party to exhaust all available insurance to obtain a good faith settlement determination.

In sum, the parties challenging the requested determination of good faith have not met their burden of showing that this settlement is so far “out of the ballpark” as to be “grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.” (Tech-Bilt, supra, 38 Cal.3d at 499.)

Conclusion

The Court determines that the settlement between Plaintiff and Thomas Slater dba Atomic Concrete Pumping is in good faith under Code of Civil Procedure section 877.6.

Counsel for Thomas Slater dba Atomic Concrete Pumping is ordered to give notice.