Judge: Steven A. Ellis, Case: 22STCV28801, Date: 2024-08-20 Tentative Ruling
Case Number: 22STCV28801 Hearing Date: August 20, 2024 Dept: 29
Engibegian v. Ross Stores, Inc.
22STCV28801
Motion for Determination of Good Faith Settlement
Tentative
The
Court GRANTS the motion of CAP & Associates, Inc. for determination of a good
faith settlement under Code of Civil Procedure section 877.6
Under section 877.6, subdivision (b), the Court
DISMISSES the First and Second Causes of Action in the Cross-Complaint filed by
Ross Dress for Less, Inc., on October 10, 2023.
Background
On September 2, 2022, Hilda Engibegian (“Plaintiff”) filed a complaint
against Ross Stores, Inc. and Does 1 through 30 for premises liability arising
out of an incident on September 16, 2020 in which, Plaintiff alleges, she was
injured when a plexiglass shield at the cashier struck her head.
On December 9, 2022, Ross Dress for Less, Inc. (erroneously sued as
Ross Stores, Inc.) (“Ross”) filed an answer.
On October 10, 2023, Ross filed a cross-complaint against CAP &
Associates, Inc. dba CAP Fixtures (“CAP”) and Roes 1 through 25.
On the same day, Plaintiff amended the complaint to name CAP as Doe 1.
On December 1, 2023, and January 5, 2024, CAP filed its answer to
Plaintiff’s complaint and Ross’s cross-complaint.
On April 26, 2024, Plaintiff filed a First Amended Complaint (“FAC”) against
Ross, CAP, and Does 1 through 30, asserting causes of action for premises
liability and products liability.
On May 17, 2024, CAP filed a motion for summary judgment on the
complaint, with a hearing scheduled for November 19, 2024, and a motion for summary
judgment or, in the alternative, summary adjudication on Ross’s cross-complaint,
with a hearing scheduled for February 6, 2025.
On May 23, 2024, the Court, at the request of Plaintiff, dismissed all
causes of action against CAP in Plaintiff’s complaint with prejudice.
On May 30, 2024, CAP filed this motion for a good faith settlement
determination. CAP also filed a request for judicial notice. Ross filed an opposition
on July 3. CAP filed a reply, as well as objections to some of Ross’s evidence,
on July 10.
The hearing was initially scheduled for July 17 and was continued to
August 20.
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.)
Request for Judicial Notice
CAP requests that the Court take judicial
notice of Plaintiff’s Complaint, Ross’s Cross-Complaint, Plaintiff’s Doe
Amendment, and Plaintiff’s Request for Dismissal. The request is granted.
Objections to Evidence
CAP objections to certain portions of the declaration
of Cathy M. Diehl, counsel for Ross. The Court OVERRULES these objections.
Discussion
Plaintiff alleges in her complaint that she
was injured at a Ross store in La Canada when a “plexiglass shield fell and
struck Plaintiff in the head.” (Complaint, at p. 4., ¶ L-1.) In written
discovery responses, Plaintiff testified that as she was at a checkout stand, “the
employee took the clothes from under the covid Plexiglass barrier,” “the
employee pulled the barrier somehow,” and the barrier “came loose and fell on
the Plaintiff’s head then moved down to her foot.” (Trembach Decl., Exh. A [Plaintiff’s
Response to CAP’s Special Interrogatories Nos. 1-2.)
CAP sold the plexiglass shield to Ross, as
well as at least some of the products used to secure the shield. (Diehl Decl.,
Exh. B.) Ross employees, and not CAP, installed the shield. (Prosnik Decl., ¶
8; Trembach Decl., Exh. D [Ross’s Response to CAP’s Request for Admission No. 35]
& Exh. E [Ross’s Response to Plaintiff’s Special Interrogatory No. 1].)
With that brief factual background, the
Court now turns to an analysis of the settlement under the Tech-Bilt factors:
(1) Rough approximation of Plaintiff’s
total recovery.
In her statement of damages served in
January 2024, Plaintiff identified $26,000 in special damages and $1,000,000 in
general damages. (Trembach Decl., Exh. I.)
As of February 22, 2024, Plaintiff had incurred
medical expenses of approximately $24,877. (Trembach Decl., Exh. A [Plaintiff’s
Response to CAP’s Special Interrogatory No. 102.) At that time, Plaintiff had
not been told that she would require future or additional medical treatment,
except “[p]ossibly physical therapy if [Plaintiff] suffers an exacerbation of
her symptoms.” (Trembach Decl., Exh. B [Plaintiff’s Response to CAP’s Form Interrogatory
No. 6.7.)
In light of Plaintiff’s limited special
damages, her allegation that she has sustained $1 million in general damages
seems significantly inflated. Based on the evidence in the record, it appears
that a rough approximation of Plaintiff’s total recovery is somewhere in the
range of $75,000 to $100,000.
(2) The settlor’s proportionate liability.
The parties vigorously dispute this factor.
CAP contends its proportional liability is zero as its role is limited to selling
the plexiglass to Ross; any faulty installation is the responsibility of Ross,
CAP contends. Ross, however, contends that CAP bears substantial
responsibility, as it supplied not only the plexiglass but also at least some
of the items used to install and secure the shield, and Plaintiff asserted in
her FAC that those CAP products were defective.
The Court must conduct its Tech-Bilt
analysis based on the facts, not unsupported allegations. (Mattco Forge v.
Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1351-1352.), And the analysis
must be based on the “information available at the time of settlement,” which
here was in May 2024. (Tech-Bilt, supra, 38
Cal.3d at p. 499.)
Plaintiff stated in verified discovery
responses that she was injured by Ross’s negligence. (Trembach Decl., Exh. G [Plaintiff’s
Response to CAP’s Request for Admission No. 7].) More specifically, Plaintiff testified in her
discovery responses that the cause of her injury was that the plexiglass shield
was not properly “attached and secured,” resulting in a dangerous condition. (Trembach
Decl., Exh. B [Plaintiff’s Response to CAP’s Form Interrogatory No. 17.1(b) as
to Request for Admission No. 15.)
Ross employees installed the plexiglass
shields. (Trembach Decl., Exh. E [Ross’s Response to Plaintiff’s Special
Interrogatory No. 1].). CAP sold the shields and suction to Ross but did not
install, inspect, or maintain the barriers. (Prosnik Decl., ¶¶ 7-8; Trembach
Decl., Exh. D [Ross’s Response to CAP’s Request for Admission No. 35].)
In discovery, CAP asked Ross to state all
facts to support Ross’s causes of action for equitable indemnity, implied
indemnity, and contribution. On May 7, 2024, shortly before Plaintiff and CAP
reached their settlement agreement, Ross served its response: the response
consisted of general statements of contentions that CAP was responsible,
without providing any supporting facts. (Trembach Decl., Exh. H [Ross’s
Response to CAP’s Special Interrogatories, Nos. 1, 4, 7].)
In sum, as of the time of settlement: (a)
Plaintiff blamed the accident on Ross’s negligence; (b) CAP asserted, based on
facts, that it was not responsible for Plaintiff’s injuries; and (c) although
Ross asserted that CAP was at least in part responsible for the accident, Ross
was aware of no facts to support that contention.
Accordingly, the Court finds that, based on
the information available at the time of the settlement, CAP’s proportionate
share of liability was close to zero.
(3)
The amount paid in settlement.
The
amount of consideration is quite modest. In exchange for a dismissal with
prejudice, CAP agreed to waive its costs of approximately $1,735.68. (Trembach
Decl., ¶ 4 & Exh. F.)
(4) The allocation of the settlement
proceeds among plaintiffs.
There is only one Plaintiff, and so this is
not a factor.
(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 the request for a good
faith determination.
(6) The settling party’s financial
conditions and insurance policy limits.
Both parties have adequate insurance or
self-retention to cover Plaintiff’s likely recovery. (Trembach Decl., ¶ 5 &
Exh. J [Ross’s Response to Plaintiff’s Form Interrogatory No.. 4.1].) In this
context, the Court gives this factor little weight.
(7) Any evidence of collusion, fraud, or
tortious conduct aimed to injure the interests of nonsettling defendants.
There is no evidence in the record of any collusion,
fraud, or tortious conduct by the settling parties toward Ross.
The Court has carefully reviewed all of the
evidence in the record and the argument presented by both sides. After
considering and balancing the Tech-Bilt factors, the Court finds that
the settlement is a good faith settlement under Code of Civil Procedure section
877.6. The Court gives particular weight to the evidence presented by CAP as to
its non-liability, and the absence of evidence from Ross that there was any
defect in the materials supplied by CAP (or other basis for imposing liability
against CAP).
Finally, the Court notes that the good
faith settlement determination under section 877.6 does not bar or require
dismissal of the third and fourth causes of action in Ross’s cross-complaint
against CAP. A good faith settlement determination does not have any impact on
a claim by one party to enforce an obligation to indemnify under an express provision
in a contract (the fourth cause of action), or a declaration of rights as to
those express contractual provisions (the third cause of action). (See Bay
Development Ltd. v. Super Ct. (1990) 50 Cal.3d 1012, 1019; 3 Weil & Brown,
California Practice Guide: Civil Procedure Before Trial (2024) ¶ 12:914.)
Conclusion
The
Court GRANTS the motion of CAP & Associates, Inc. for determination of a good
faith settlement under Code of Civil Procedure section 877.6
Under
section 877.6, subdivision (b), the Court DISMISSES the First and Second Causes
of Action in the Cross-Complaint filed by Ross Dress for Less, Inc., on October
10, 2023.