Judge: Theresa M. Traber, Case: 19STCV06421, Date: 2023-01-25 Tentative Ruling

Case Number: 19STCV06421    Hearing Date: January 25, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     January 25, 2022                   TRIAL DATE: NOT SET (vacated).

CASE:                         James Lewallen, et al. v. Does 1 through 100

CASE NO.:                 19STCV06421

MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENT

MOVING PARTY:               Defendant Xypex Chemical Corporation

RESPONDING PARTY(S): No opposition on eCourt as of January 23, 2022

CASE HISTORY:

• 02/25/19:         Complaint filed.
• 04/16/19:         Crossfield Products Corp. substituted in as Doe 1.

Henry Company LLC substituted in as Doe 2.

ITW Polymers Sealants North America Inc. substituted in as Doe 3.

MBTechnology substituted in as Doe 4.

Smalley & Company substituted in as Doe 5.

Sunshine Supply Co., Inc. substituted in as Doe 6.

Top Industrial, Inc. substituted in as Doe 7.

Tropical Roofing Products of California, LLC substituted in as Doe 8.

• 05/09/19:         Gardner-Gibson Manufacturing, Inc. substituted in as Doe 9.

Bostik, Inc. substituted in as Doe 10.

Carlisle Coatings and Waterproofing Inc. substituted in as Doe 11.

Certainteed Corporation substituted in as Doe 12.

Brenntag Canada Inc. substituted in as Doe 13.

Minerals Technologies Inc. substituted in as Doe 14.

Concrete Sealants, Inc. substituted in as Doe 15.

GAF Materials LLC substituted in as Doe 16.

GP Gypsum LLC substituted in as Doe 17.

W.R. Grace & Co.-Conn. substituted in as Doe 18.

W.M. Barr & Company, Inc. substituted in as Doe 19.

Citgo Petroleum Corporation substituted in as Doe 20.

Mule-Hide Products Co., Inc. substituted in as Doe 21.

Nemeon, Inc. substituted in as Doe 22.

Sika Corporation substituted in as Doe 23.

Tamko Building Products, Inc. substituted in as Doe 24.

Tremco Incorporated substituted in as Doe 25.

• 09/18/19:         Case deemed non-complex.
• 10/15/19:         Colloid Environmental Technologies Company, LLC substituted in as

Doe 26.

• 11/01/19:         Malarkey Roofing Products substituted in as Doe 27.

Vance Brothers, Inc. substituted in as Doe 28.

Soprema U.S.A., Inc. substituted in as Doe 29.

Xypex Chemical Corporation substituted in as Doe 30.

Owens Corning substituted in as Doe 31.

Durapax LLC substituted in as Doe 32.

• 11/06/19:         Brenntag North America, Inc. substituted in as Doe 33.
• 12/04/19:         MFM Building Products Corporation substituted in as Doe 34.
• 09/09/20:         Dismissal entered as to Defendant GP Gypsum LLC.
• 01/08/21:         Dismissal entered as to Defendant MFM Building Products Corporation.
• 02/01/21:         Dismissal entered as to Defendant GAF Materials, LLC.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a toxic tort case. Plaintiffs allege that Plaintiff James Lewallen, who worked in the construction industry in various capacities, was exposed to toxic chemical products manufactured, distributed, or supplied by the Defendants and sustained injuries as a result, including lung cancer.

            Defendant Xypex Chemical Corporation moves for a determination of good faith settlement.

TENTATIVE RULING:

Defendant Xypex Chemical Corporation’s motion for determination of good faith settlement is GRANTED.

DISCUSSION:

Motion for Determination of Good Faith Settlement

Defendant Xypex Chemical Corporation moves for a determination of good faith settlement. The basic terms of the settlement, according to the moving papers, are that Defendant will pay $112,500 in resolution of all claims against it. (Declaration of Erin Poppler ISO Mot. ISO Mot. ¶ 5.) Payment will be distributed between Plaintiffs as they deem appropriate. (Poppler Decl. ¶ 10.)

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” is 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.” (Code Civ. Proc. § 877.6(a)(1).)

There is no precise yardstick for measuring the “good faith” of a settlement with one of several tortfeasors, but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors. (See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.)

The nonexclusive factors considered include:

(1)               A rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability;

(2)               The amount paid in settlement;

(3)               A recognition that a settlor should pay less in settlement than if found liable after a trial;

(4)               The allocation of the settlement proceeds among plaintiffs;

(5)               The settlor's financial condition and insurance policy limits, if any; and

(6)        Evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share.

(Tech-Bilt, supra, 38 Cal.3d at 499; TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 165-166.)

The party contesting the settlement bears the burden of proving that it is in bad faith. (Code Civ. Proc. §877.6(d).) If the party contesting the settlement can show, with admissible evidence, that the settlement is “so far ‘out of the ballpark’ in relation to [the above-referenced factors] as to be inconsistent with the equitable objectives of the statute,” then the court should find the settlement to be lacking in good faith. (Id. at 499-500.) If no such showing is made, the settlement should be deemed to be in good faith and the settlor is entitled to an order barring any further claims by any other joint tortfeasor or co-obligor for “equitable comparative contribution, or partial or comparative indemnity” and/or an order dismissing any such claims. (Code Civ. Proc. § 877.6(c).)

Here, no party has contested the settlement.

1.      Rough Approximation of Liability

Defendant contends that its total liability arising from Plaintiff’s exposure to its product over two days is within the reasonable range of the amount actually settled. (Poppler Decl. ¶ 9.) Defendant does not provide a numerical estimation of its total potential liability, though its statement that the liability is within range of the amount of the settlement is made under penalty of perjury.

2.      Amount Paid in Settlement

Defendant has entered into a settlement with Plaintiffs in the amount of $112,500. (Poppler Decl. ¶ 5.) As the motion is unopposed, no party has disputed the amount of the settlement or its relative value.

3.      Recognition that Settlor Should Pay Less in Settlement Than if Found Liable After Trial

Defendant contends that, if it were found to be liable, that its share of damages would be “within the reasonable range” of the settlement figure. (Poppler Decl. ¶ 9.) Again, Defendant does not provide a numerical estimation of its total liability to show whether Defendant would be paying less than it would have after trial though its statement that the liability is within range of the amount of the settlement is made under penalty of perjury.

4.      Allocation of Settlement

The settlement will be allocated between the Plaintiffs as they see fit. (Poppler Decl. ¶ 10.) No party has disputed this allocation.

5.      Settlor’s Financial Condition and Insurance Policy Limits

Defendant states under penalty of perjury that there are no issues concerning its financial condition or insurance policy limits. (Poppler Decl. ¶ 11.)

6.      Evidence of Collusion, Fraud, or Tortious Conduct

No party has made any allegations of collusion, fraud, or tortious conduct on the part of any of the settling parties, nor is there any evidence of such conduct.

Thus, having reviewed the papers submitted, the statements offered under penalty of perjury, the lack of opposition to this settlement, and taking into consideration the facts and circumstances of this case and the factors enumerated in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the Court concludes that the settlement was made in good faith.

The settlement, having been made and entered into in good faith, shall have the full effect set out under California Code of Civil Procedure § 877, including but not limited to discharging Xypex Chemical Corporation from all liability for any contribution to any other parties.

            Moving party to give notice, unless waived.

IT IS SO ORDERED.

Dated:  January 25, 2023                                ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at  Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing.  All interested parties must be copied on the email.  It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.