Judge Thomas Falls, Case 21STCV27035 2023-05-01 Tentative Ruling

Cross-Defendant VIKING RANGE, LLC’S (“Viking”) MOTION FOR GOOD FAITH SETTLEMENT DETERMINATION

Cross-Defendant VIKING RANGE, LLC’S MOTION FOR GOOD FAITH SETTLEMENT DETERMINATION is GRANTED.

This is a personal injury case. Plaintiffs Candy Espinoza Frank Espinoza (collectively, “Plaintiffs”) allege the following against Defendant California Design Center, Inc (“Defendant” or “California Design”): Plaintiffs hired Defendant to do re-modeling work in Plaintiffs' home. As part of the remodel, Defendant's employee relocated Plaintiffs’ Viking refrigerator to Plaintiffs' garage so that Plaintiffs could continue to use the Viking during the remodel, but in the process, Defendant failed to properly secure the Viking in its place. When Plaintiff Candy went to open the Viking, the entire refrigerator began to fall on top of her.[1]

On April 13, 2022, Defendant filed its Cross-Complaint against Viking for Total Indemnity, Implied Partial Indemnity, Declaratory Relief, Equitable Apportionment.[2]

On August 21, 2022, Defendant filed an amended cross-complaint, after Viking filed a Demurrer.

On March 1, 2023, Defendant filed a Motion To Compel Viking Range LLC Person Most Knowledgeable To Deposition And To Produce Documents.

Under section 877.6 of the California Code of Civil Procedure, “[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.” (Code Civ. Proc., § 877.6, subd. (c).) “The party asserting the lack of good faith has the burden of proof on that issue.” (Code Civ. Proc., § 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;

(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.

2. Defendant has failed to provide evidentiary support for its claims against Viking; and

3. The settlement amount is proportionate to Viking’s lack of liability and consistent with Defendant’s own settlement proposal.

First, the Viking fridge was a built-in[4] fridge; the fridge was not a standalone fridge. (Motion p. 5.) Contrary to a standalone fridge, a built-in fridge “must be secured to [a] cabinet as a necessary part of installation.” (Motion p. 5:9-10.)

Here, however, according to the deposition of Tony Wang (“Wang”), Defendant’s owner, the employees did not attach the fridge to anything. Rather, Defendant’s employees uninstalled the built-in fridge from the cabinet by removing screws attached to the top cabinets, used a dolly to move the built-in fridge to the garage, and leaned the built-in fridge against a wall for a period of weeks, during which time of the remodeling Plaintiffs used the fridge.

Therefore, the evidence indicates that Defendant did not attach the built-in fridge, even though the built-in fridge was to be built-in (i.e., attached to the cabinet(s)).

2. Causation: The Evidence Establishes That Viking Did Not Contribute to the Harm

Second, as to causation, Plaintiffs used the built-in fridge for over twenty (20) years, during which period Plaintiffs testified that they never experienced any issues with the product. (Motion p. 4.)[5] The injury arose when Defendant engaged in remodeling and failed to secure the built-in fridge to the wall in the garage for Plaintiffs’ use. Effectively, to the extent that Defendant relies upon their allegations that Viking is strictly liable in its (i) failure to design a safe refrigerator without it being a tip over hazard pursuant to consumer expectations and (ii) failure to provide warning labels adequate to warn consumers and third parties of the dangers in using the refrigerator, those arguments, for reasons to be discussed below, are inconsequential.

Regarding the purported tip over hazard, was this a situation where the fridge was properly secured and then tipped over, Defendant’s argument suggesting comparative negligence would be meritorious. After all, as established in Li v. Yellow Cab Co (1975) 13 Cal.3d 804, the fundamental purpose of comparative fault, which is central to California negligence law, is to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties or in direct proportion to their respective fault.[6] Under comparative fault principles, a defendant has the burden of showing that some nonzero percentage of fault is properly attributed to the plaintiff or an individual other than the defendant. (CRST, Inc. v. Superior Court (2017) 11 Cal.App.5th 1255) (emphasis added).

Here, however, as explained above, the evidence demonstrates that Defendant was solely negligent by not properly securing the built-in fridge.

Therefore, Defendant has not met its burden in establishing that Viking may have also contributed to the harm.

Regarding the Viking purported failure to “adequately warn Plaintiffs, as consumers of the refrigerator, of the tip over hazard” (Opp. p. 4:3-4), there are three major problems with this argument.

First, it is unclear whether Defendant has standing to assert a products liability cause of action. As noted by Defendant’s own cited legal authority, “in California, manufacturers and suppliers may be held liable for a product that could be used safely but that lacks warnings regarding possible dangers, when the lack of adequate warning creates unreasonable risks to the consumer. The supplier of the product will be subject to strict liability if it is unreasonably dangerous to place the product in the hands of the user without a suitable warning and the product is supplied and no warning is given. (Opp. p. 4) (emphasis added).

Therefore, the court ascertains that Defendant does not have standing to assert a products liability/strict products liability claim based on a failure to warn.

Second, to invoke the failure to warn theory of strict liability, a manufacturer must not have given warning of the risk to the user. (See Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 53 [“[A] product, although faultlessly made, may nevertheless be deemed ‘defective’ under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.”]) (emphasis added).

Here, Defendant is a licensed contractor that admitted familiarity with the installation of built-in appliances. (Motion p. 5.) Additionally, Plaintiffs and Defendant have attested that the installation guide and/or manual was available and that it contained express instructions and warnings requiring proper installation (i.e., that the fridge should be secured to an anti-tip board). (Motion p. 5:26-28.)

Therefore, as there was a warning, Defendant’s attempt at invoking the failure to warn theory of strict liability is misplaced.

Third, in a strict products liability action, a defendant cannot be held liable under any of the defect theories unless the defect was a substantial factor in causing the injury (i.e., a factor that a reasonable person would consider to have contributed to the injury). It does not have to be the only cause of the injury, but it must be more than a remote, negligible or trivial factor. Indeed, a defect is legally and factually irrelevant if it played no part in bringing about the injury. [See O. Causation Issues, Cal. Prac. Guide Pers. Inj. Ch. 2(II)-O, quoting Soule v. General Motors Corp. (1994) 8 Cal.App.4th 548, 572.)

Here, as emphasized above, Defendant has not produced any evidence of the casual connection between the injury and Viking’s product despite causation being an essential element of a tort action. Though on a demurrer Defendant’s arguments sufficed, that is because it was a demurrer wherein the allegations are read in the light most favorable to the plaintiff/cross-complainant and the allegations are considered as true no matter how improbable or impossible. Now, as this matter is well beyond the complaint stage such that the court considers evidence, the evidence here negates Defendant’s allegations that a lack of adequate warning caused Plaintiffs’ injuries.[7]

Therefore, as there is no evidence that Viking played a role in causing Plaintiffs’ injuries, that is another reason why strict liability fails.

Third, as to the settlement offer itself, Viking explains that the settlement is fair according to Defendant’s own assessment of proportionate liability because Defendant requested from Viking only 6% of the contemplated “global settlement” offer to Plaintiffs and less than 3% of the total recovery demanded by Plaintiffs. (Motion p. 14:15-18.)

Assessing the Tech-Bilt factors—giving notable consideration to Viking’s lack of liability—the settlement is not “so far out of the ballpark” as to be inconsistent with the objective of Section 877.6. (Tech-Bilt, supra, 38 Cal.3d at p. 499.)

Therefore, as there is a presumption that a settlement was made in good faith and there is a lack of evidence to indicate otherwise, the court determines that the settlement was made in good faith.

Perhaps aware of the lack of evidence, despite it bearing the burden, Defendant argues it would be unfair to rule on the motion without Defendant taking the deposition of Viking’s PMK. The court is unpersuaded by the request for a few reasons.

First, if the discovery was so exigent, then Defendant should have filed an ex-parte application to advance the May 5, 2023 hearing date on the motion to compel the deposition of Viking’s deposition. The docket, however, does not reveal any ex-parte application.

Second, discovery may be obtained as to any nonprivileged information that is “relevant to the subject matter involved.” (CCP section 2017.010.) Information is “relevant” and thus discoverable if it might reasonable assist in evaluating the case, preparing for trial, or facilitating the settlement. (Moore v. Mercer (2016) 4 Cal.App.5th 424, 447.) For example, discovery may relate to a party’s claim or defense. Here, not only does Defendant’s opposition to the instant motion not explain the relevancy of the deposition (i.e., negate evidence that Defendant caused Plaintiffs’ injuries by failing to secure a fridge that was required to have been secured because it was a built-in fridge), but the court’s review of the motion itself reveals no analysis as to why the deposition is relevant. In fact, Defendant failed to submit a separate statement with its moving papers as required by 3.1345(a)(5), which would be grounds for the court to deny the discovery.

Third, the well-established principle is that the good faith determination must be made “on the basis of the information available at the time of the settlement.” (Tech-Bilt, supra, 38 Cal.3d at 499) (emphasis added). Here, however, Defendant is attempting to conduct post-settlement discovery, which does not comport with the statute’s legal standard. Therefore, the motion is arguably untimely.

Therefore, as the deposition of the PMK would not produce relevant evidence such that the court would deny the motion, the court determines that there is no need to continue the instant motion contingent upon said deposition.

All in all, the evidence establishes that there is only one party who caused Plaintiffs’ injuries, and that is Defendant, resulting in the absence of joint and several liability. And without joint and several liability, equitable indemnity does not apply.[8] Based on the foregoing, the motion is granted.

[1] According to the instant motion, Plaintiffs’ orthopedic injuries are so severe that Plaintiffs allege a combined $810,000.00 in damages.

[2] Defendant alleges that Viking was responsible for manufacturing, designing, assembling, and/or distributing the product to Plaintiffs, and that these were the cause of Plaintiff’s injuries. According to the court’s minute order, issued by Judge Daniel M. Crowley, the court reversed its tentative ruling because of the following reason: “[w]hile in the cross-complaint and moving papers, Defendant had not articulated how Cross-Defendant's manufacturing, designing, assembling, or distributing relates to the occurrence of the incident, at argument, Defendant laid out its basis for the cross-complaint.”

[3] According to the minute order, though Viking “correctly points out that equitable indemnity requires that Cross-Defendant and Cross-Complainant be joint tortfeasors that Cross-Defendant be at fault to Plaintiff,” “[h]owever, Cross-Complainant does allege that Cross-Defendant is a joint tortfeasor at fault to Plaintiff.” In addition, the other pertinent allegation the court found suffices to allege comparative fault is the Defendant’s allegation that “the tip over hazard was a known defect at the time the subject fridge was

manufactured/designed/distributed/sold by Viking Range, when there were alternative safer designs at the time of the manufacture/design/distribution/selling of the Refrigerator.” (emphasis added).

[4] The court intentionally italicizes “built-in” to emphasize the point that the fridge, in its intended use, is to be built-in (i.e., attached). This is of significant import because it undermines Defendant’s argument that Viking is liable for its product because a manufacturer, distributor, or retailer is liable in tort if a defect in the manufacture or design of its product causes injury while the product is being used in a reasonably foreseeable way. (Opp. pp. 3-4, quoting Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 418) (emphasis added). But using a built-in fridge as a standalone fridge—meaning using the fridge contrary to its intended use and purpose—is not using the fridge in a reasonably foreseeable way. The issue will be further addressed in the ruling.

[5] Hence, Plaintiffs’ decision to not name Viking as a defendant and hence Plaintiffs’ surprise at Defendant’s naming of Viking as a cross-defendant. (Motion p. 1:25-28.)

[6] (Id. at pp. 828-829 [“For all of the foregoing reasons we conclude that the ‘all-or-nothing’ rule of contributory negligence as it presently exists in this state should be and is herewith superseded by a system of ‘pure’ comparative negligence, the fundamental purpose of which shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties.”].)

[7] On this note, even the allegations in the cross-complaint were deficient, leaving the court persuaded by Viking’s argument that Defendant brought forth its action against Viking without adequate pre-investigation. Notably, not only did Defendant file its cross-complaint against Viking nearly one year into litigation without any discovery or new legal development but rather during the time wherein Plaintiffs and Defendant engaged in mediation, but Defendant failed to preserve material evidence (the fridge).

[8] (See Heritage Oaks Partners v. First American Title Ins. Co. 92007) 155 Cal.App.4th 339, 348 [“‘At the heart of the doctrine [of equitable indemnity] is apportionment based on fault. At a minimum equitable indemnity ‘requires a determination of fault on the part of the alleged indemnitor....’ [Citations]. Thus, to state a cause of action for equitable indemnity, [purported indemnitee] had to allege that it was jointly and severally liable with [alleged indemnitor] to the [plaintiffs]. ‘[O]ne point stands clear: there can be no indemnity without liability. In other words, unless the prospective indemnitor and indemnitee are jointly and severally liable to the plaintiff there is no basis for indemnity.’”]) (emphasis added).