Judge Wesley L. Hsu, Case 19STCV38477 2023-04-14 Tentative Ruling

Bendix’s ex parte Application Dated April 11, 2023 for Clarification of Court’s Order Approving Good Faith Settlement is GRANTED in part, and DENIED in part. The court hereby amends its March 27, 2023, as follows. Other than as reflected in this amended ruling, the ex parte Application is DENIED.

Defendant/Cross-Complainant/Cross-Defendant Gurney Trucking, Inc.’s and Cross-Defendant James Robert Hayes’ Motion for Determination of Good Faith Settlement is GRANTED.

Plaintiff Brian Anthony Lopez (“Brian”) alleges as follows: Brian sustained injuries in a July 30, 2019 car crash.

On October 25, 2019, Brian filed a complaint, asserting causes of action against James Robert Hayes (“Hayes”), Daniel Lopez (“Daniel”), Gurney Trucking, Inc. (“GTI”) and Does 1-25 for:

On July 7, 2020, GTI filed a cross-complaint, asserting causes of action against Bendix Commercial Vehicle Systems, LLC (“Bendix”), Paccar, Inc. (“Paccar”), Peterbilt Motors Company (“Peterbilt”), Jackson Group Peterbilt, Inc. (“Jackson Group”) and Moes 1-10 for:

On August 31, 2020, Bendix filed a cross-complaint, asserting causes of action against GTI, Hayes and Roes 1-25 for:

On September 18, 2020, this case was transferred from Department 32 of the Personal Injury Court to this instant department.

On April 8, 2021, Daniel filed four Amendments to Cross-Complaint, wherein Bendix was named in lieu of Roe 1, Paccar was named in lieu of Roe 2, Peterbilt was named in lieu of Roe 3 and Jackson Group was named in lieu of Roe 4.

On April 19, 2021, Daniel and Intervenor Maria Morales Garcia (“Garcia”) filed a First Amended Cross-Complaint, asserting causes of action against Hayes, GTI, Bendix, Paccar, Peterbilt, Jackson Group and Roes 1-10 for:

On April 20, 2021, GTI and Hayes filed a “Notice of Intent to Enter Into Sliding Scale Settlement Agreement with Plaintiffs and Cross-Complainants.”

On May 20, 2021, Jackson Group filed a cross-complaint, asserting causes of action against Hayes, GTI, Daniel, Paccar, Peterbilt, Bendix and Does 1-10 for:

On June 11, 2021, Brian filed four Amendments to Complaint, wherein Bendix was named in lieu of Doe 1, Paccar was named in lieu of Doe 2, Peterbilt was named in lieu of Doe 3 and Jackson Group was named in lieu of Doe 4.

On July 12, 2021, Peterbilt dismissed its first cause of action, with prejudice. On July 14, 2021, Jackson Group filed a “Notice of Withdrawal” of its first cause of action in its cross-complaint.

On February 3, 2023, GTI and Hayes filed a “Notice of Intent to Enter Into Sliding Scale Settlement Agreement with Plaintiffs and Cross-Complainants.”

“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 shall be 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-obligators, upon giving notice in the manner provided in subdivision (b) of Section 1005 . . .” (Code Civ. Proc., § 877.6, subd. (a)(1).)

“A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).)

“[T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) Additionally, “the trial court’s good faith determination must take into account the settling tortfeasor’s potential liability for indemnity to a cotortfeasor, as well as then settling tortfeasor’s potential liability to the plaintiff.” (Far West Financial Corp. v. D&S Co. (1988) 46 Cal.3d 796, 816, fn. 16.) “If section 877.6 is to serve the ends of justice, it must prevent a party from purchasing protection from its indemnification obligation at bargain-basement prices.” (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4^th 865, 876.)

Additionally, “(1) . . . Tech-Bilt's good faith standard applies to sliding scale agreements, (2) . . . to satisfy the statutory objective of a fair apportionment of loss (i) the ‘consideration’ paid by a defendant who enters into a sliding scale agreement must fall within the Tech-Bilt ‘ballpark’ and (ii) the plaintiffs’ claims against the remaining defendants must be reduced by the amount of the “consideration paid” by the settling defendant, (3) . . . any unreasonable or bad faith conduct of the nonsettling defendants which impeded the settlement process and led to the sliding scale agreement may be taken into account in determining whether the agreement satisfies the ‘ballpark’ standard, and (4) . . . any provision which purports to give a settling defendant a “veto” over subsequent settlements is valid only if it is limited to settlements which would leave the earlier settling defendant to bear more than its fair share of liability for the plaintiff's damages.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 886-887.)

The moving party’s initial evidentiary burden depends on whether the good faith of the settlement is being contested. If the nonsettling defendants do not oppose the motion on the good faith issue, a “barebones” motion which sets forth the grounds of good faith, accompanied by a declaration which sets forth a brief background of the case, is sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

When a motion for determination of good faith settlement is contested, however, the moving party must make a more specific showing under the Tech-Bilt factors. (Id. at 1261-62.) Such a showing may be made either in the original moving papers or in counter-declarations filed after the nonsettling defendants have filed an opposition challenging good faith of the settlement. (Id. at 1262.) Where good faith is contested, the showing requires competent evidence in support of “good faith.” (Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834.)

“Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the non-settlor who asserts that the settlement was not made in good faith.” (City of Grand Terrace, supra, 192 Cal.App.3d at 1262; Code Civ. Proc., § 877.6, subd. (d).)

GTI and Hayes (“Settling Defendants”) move the court for orders approving the settlement between Brian, Daniel, and Garcia (collectively, “Settling Claimants”), on the one hand, and the Settling Defendants on the other, and determining that the settlement reached is in good faith, and barring any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

Preliminarily, Settling Defendants failed to comply with California Rules of Court (“CRC”) Rule 3.1382 (i.e., “[a] motion or application for determination of good faith settlement may include a request to dismiss a pleading or a portion of a pleading. The notice of motion or application for determination of good faith settlement must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed”).

The subject incident occurred on July 30, 2019 at approximately 11:45 p.m. (McDermott Decl., ¶ 2, Exh. A.) Hayes was traveling on the Southbound 605 freeway in the El Monte neighborhood of East Los Angeles. (Id.) Claimants Brian and Daniel were also traveling on the Southbound 605 freeway in the El Monte neighborhood of East Los Angeles, initially in the far left lanes of the freeway. (Id.) Brian and Daniel started merging across multiple lanes of traffic in order to reach the far-right shoulder. (Id.) As Brian and Daniel merged into the far-right lane on the Southbound 605 freeway, Hayes approached and struck one or both of their vehicles. (Id.) Brian and Daniel each allege that Hayes negligently drove his truck into both of their vehicles. (Id., ¶¶ 5 and 12, Exhs. D and I.)

On October 25, 2019, Brian filed a complaint against Hayes, Daniel and GTI for Motor Vehicle and General Negligence. (Id., ¶ 12, Exh. I.) On July 7, 2020, GTI filed an indemnity cross-complaint against Bendix, Paccar, Inc., Peterbilt and Jackson Group. (Id., ¶ 13, Exh. J.) On August 31, 2020, Bendix filed an indemnity cross-complaint against GTI and Hayes. (Id., ¶ 14, Exh. K.) On April 8, 2021, Daniel substituted Bendix, Paccar, Peterbilt and Jackson Group in lieu of Roes 1-4 to his cross-complaint. On April 19, 2021, Daniel and Intervenor Maria filed a First Amended Cross-Complaint (“FACC”) against Hayes, GTI, Bendix, Paccar, Peterbilt and Jackson Group for Negligence, Products Liability, Loss of Consortium, Indemnification, Apportionment of Fault and Declaratory Relief. (Id., ¶ 5, Exh. D.) On May 20, 2021, Jackson Group filed an indemnity cross-complaint against Hayes, GTI, Lopez, Paccar, Peterbilt and Bendix. (Id., ¶ 15, Exh. L.)

On February 3, 2023, GTI and Hayes filed a “Notice of Intent to Enter Into Sliding Scale Settlement Agreement with Plaintiffs and Cross-Complainants.” (Id., ¶ 22, Exh. M.) The instant motion was filed on February 14, 2023.

Settling Defendants and Settling Claimants have entered into a sliding scale settlement whereby Settling Claimants have collectively agreed to receive a payment of $3,000,000.00 (allocated $30,000.00 to Brian and $2.97 million to Daniel and Garcia) in exchange for dismissal of Brian’s complaint and Daniel’s/Garcia’s FACC. (Id., ¶¶ 16 and 20).

Settling Defendants have agreed to pay $3,000,000.00 and then will apply sliding scale “Mary Carter” terms to any recovery from the non-settling cross-defendants by either or both of the Settling Claimants or Settling Defendants. (Id.) Settling Defendants and Settling Claimants will each individually incur the costs of pursuing their remaining claims against the non-settling cross-defendants; if either or both of Settling Defendants and Settling Claimants reach a settlement with or obtain a judgment against the non-settling cross-defendants, the settling parties are entitled to first recover their costs and expenses (not including attorneys’ fees from any such proceeds) and the settling parties will thereafter split the remaining proceeds 50/50 from any such settlement/judgment. (Id., ¶ 17.) Settling Defendants’ share of the settlement or judgment proceeds from the non-settling cross-defendants will not be more than $3 million, exclusive of recoverable costs; this is a “net zero” settlement where there is no possibility Settling Defendants will obtain a profit via this settlement (Id., ¶ 18.) Additionally, neither Settling Defendants nor Settling Claimants have been granted any veto power in the agreement as to any settlements subsequently reached with the non-settling cross-defendants and the Settlement Claimants and Settling Defendants agree to make themselves available to participate at trial to verdict unless both of the parties reach a settlement with the non-settling cross-defendants (Id., ¶ 19.)

In addressing the rough approximation of plaintiff’s recovery, Settling Defendants advise that Daniel seeks damages for past and future medical expenses, past and future loss of earnings, property damage and general damages. (Id., ¶ 5, Exh. D.) Settling Defendants represent that Daniel’s medical specials currently amount to $3,403,198.67 (Id., ¶ 28, Exh. R), that his past loss of earnings amounts to approximately $168,000.00 as of February 2023 (Id., ¶¶ 6 and 7, Exhs. E [i.e., Resp. to No. 8.4] and F [i.e., 17:17-18:6, 18:24-19:1, 20:14-16]), and that he seeks lifetime future earnings of approximately $1.2 million based on his life expectancy (Id., ¶ 6, Exh. E [i.e., Resp. to No. 8.8]). Following the incident, Daniel was taken to LAC-USC Medical Center for head and brain trauma, and lacerations to the back of his head and left calf. (Id., ¶ 26, Exh. P.) Daniel was diagnosed with (1) right subdural hematoma with midline shift; (2) right frontal intraparenchymal hemorrhage; (3) compression fracture of the T4 thoracic spine; (4) right rib fractures 1, 3-5 with trace right pneumothorax; (5) right upper lobe pulmonary contusion with trace pneumomediastinum; (6) left psoas hematoma with adjacent hematoma near left renal hilum; (7) right intrahepatic hematoma; and (8) posterior left lower leg laceration. (Id.)

Daniel received a right decompressive hemicraniectomy for right subdural hematoma evacuation on July 31, 2019. (Id.) After leaving LAC-USC, Daniel went in and out of a nursing home due to complications resulting from infections. (Id., ¶ 7, Exh. F [i.e., 41:5-23].) Garcia and Brian subsequently took Daniel home, where they care for him full-time. (Id. [i.e., 45:9-13].) Daniel had a trach tube replaced in June 2021 and is on oxygen. (Id. [i.e., 45:17-46:12 and 51:7-12.) His condition has improved “very little” since June 2021, but he is able to open his eyes and move his hand and right arm. (Id. at pp. 54:21-55:2 and 56:6-8).

Settling Defendants represent that Daniel continues to receive physical therapy and occupational therapy, that he continues to treat with a neurologist and trachea specialist and that he receives services from Rancho Los Amigos 1-2 times/month for services such as speech therapy, eating therapy and trach and feeding tube checks. (Id., ¶¶ 7 and 10, Exhs. F [i.e., 50:8-13, and 51:20-52:15] and H [i.e., 9:20-10:16 and 45:3-47:13].) Daniel has not returned to the hospital or received any surgeries since 2021. (Id., ¶ 10, Exh. H [i.e., 43:10-44:4].)

Paragraph 11 of Brian’s complaint reflects that he seeks wage loss, loss of use of property, hospital and medical expenses, general damages, property damages and loss of earning capacity. (Id., ¶ 12, Exh. I.) Brian suffered small cuts to his right hand and complained of pain to his chest and both arms immediately following the accident. (Id., ¶ 27, Exh. Q.) He was transported to Kaiser Permanente in Baldwin Park, but left with the hospital’s permission before being fully admitted. (Id.) Brian then sought treatment three days after the accident and received diagnoses of acute post-traumatic headache, sprain/strain to parts of his lumbar spine and pelvis, sprain of joints/ligaments in the neck, insomnia, cervical radiculopathy, sprain to parts of the thorax, anxiety disorder, and jaw pain. (Id.) The x-rays and MRIs Brian received immediately after the crash, though, all came back normal and without signs of any acute fracture. (Id.) The MRI of the lumbar spine showed only degeneration of the T11-T12 discs. (Id.) At his August 19, 2019 neurosurgical evaluation, Brian was diagnosed with (1) unspecified injuries of the left shoulder, upper arm, right ankle, and right elbow; (2) sprain of ligaments of the lumbar spine; (3) muscle spasm of the back; (4) sprain of unspecified parts of the thorax; (5) other muscle spasms; and (6) sprain of joints and ligaments of unspecified parts of the neck. (Id.) Although Brian informed the neurologist at this evaluation that he did not have any prior symptoms or treatment to his neck, back or extremities, his medical records reflect that he underwent surgery in 2017 to remove a bullet from a gunshot wound in his neck. (Id.)

Brian attended physical therapy, acupuncture, chiropractic treatment, and an orthopedic consultation, and received injections. (Id., ¶¶ 9 and 27, Exhs. G [i.e., Resp. to No. 6.4] and Q). Settling Defendants represent that Brian’s medical specials amount to $83,363.41 (Id., ¶ 29, Exh. S) and that his lost income claim up to May 2021 (during which time he procured employment working as a home-care provider for Daniel) is approximately $44,250.00. (Id., ¶¶ 9 and 10, Exhs. G [i.e., Resp. to No. 8.4] and H [i.e., 8:14-9:12].) Further, while Brian still claims pain in his back, neck, shoulders and arms (Id., ¶ 10, Exh. H [i.e., 18:15-23:14]), he is not treating nor does he have any plans to treat (Id.)

Garcia was not involved in the accident. She seeks loss of consortium damages. (Id., ¶ 5, Exh. D, ¶¶ 40-43.) Garcia claims that she has been seeing a psychologist/therapist to avoid becoming depressed (Id., ¶ 7, Exh. F [i.e., 56:14-19]), but she has not been diagnosed with a mental condition by a mental health professional (Id. [i.e., 58:4-9].)

Settling Defendants advise that none of Settling Claimants can collect non-economic damages pursuant to Civil Code § 3333.4.[1] They advise that Brian was not insured at the time of the accident (Id., ¶¶ 2 and 9, Exhs. A and G [i.e., Resp. to No. 4.1]) and that, while Daniel had applied for insurance prior to the accident (Id., ¶ 11), the insurance policy was not in place at that time (Id.).

Bendix makes much of the fact that Daniel seeks over $80 million in his Statement of Damages (Martinez Decl., ¶ 4, Exh. 2); however, a review of same reflects that the $80 million set forth therein is purely non-economic damages, which appear to be precluded as to Daniel and Brian by Civil Code § 3333.4 as set forth above. Garcia’s claim may not be barred by this code section (she was not operating the car and the parties have not set forth evidence regarding her ownership), but her claim necessarily amounts to a small proportion of the total damages claimed. Bendix has not demonstrated that this view of the Settling Claimants’ damages claims is unreasonable or even incorrect.

Bendix next speculates that “[a] jury verdict of $8-10 million in this case is not outlandish” (Opp., 13:25); even if true, however, the instant settlement represents 30-38% of this amount.

Bendix also argued at oral argument that the Settling Defendants’ position is based on a series of assumptions. The Court disagrees with this characterization. There is ample evidence in the record to support the Settling Defendants’ position on liability an exposure.

In addressing proportionate liability, Settling Defendants assert that Settling Claimants’ slow speeds[3] caused the subject accident, in that they were well below the applicable speed limit of 65 mph for passenger vehicles on California highways as set forth in Vehicle Code § 22349, subdivision (a). Bendix fails to dispute Settling Claimants’ contributory negligence.

Settling Defendants further assert that any fault attributed to Settling Defendants must be reduced commensurate with the liability arising from Bendix’s allegedly defective system. “[A] product is defective in design if it fails to perform as safely as an ordinary consumer would expect.” (Soule v. General Motors Corp. (1994) 8 Cal.4^th 548, 562.) The subject tractor driven by Hayes was equipped with version 1.0 of a Bendix Wingman Fusion collision mitigation system (“System”). (McDermott Decl., ¶ 31, Exh. U. [i.e., 19:24-20:8].) The Bendix Wingman Fusion Operator’s Manual claims that the System will engage the foundational brakes when a collision is “likely to occur,” that it is capable of braking up to 3.5 seconds before impact under certain circumstances and that the range of the radar on the system is approximately 500 feet. (Id., ¶ 4, Exh. C, pp. 14 and 17)[4].

In addition to automatic braking, the System will issue an “impact alert” warning to drivers prior to initiating a request for automatic braking. (Id., ¶ 30, Exh. T [i.e., 54:17-18]). The automatic braking will not be requested by the System until the warning has been active for at least 0.5 seconds, but Bendix does not inform consumers of this fact. (Id., ¶¶ 30 and 32, Exhs. T [i.e., 54:17-56:16] and V [i.e., 249:11-21].) The System, moreover, could be “tune[d]” to have the impact alert and the collision mitigation activated simultaneously. (Id., ¶ 30, Exh. T [i.e., 56:9-16].) The fact that it was not so “tuned” appears to be an intentional design choice.

The System is also advertised to be capable of assisting with “side-swipe” incidents (Id., ¶ 31, Exh. U [i.e., 29:6-19].) However, the System does not actually provide an ability to mitigate against sideswipe accidents where the vehicle is never in the same lane as the host vehicle; rather, it assists only with vehicles directly in the lane ahead of the truck driver. (Id. [i.e., 30:10-22].) Bendix’s advertising, then, appears to mislead consumers to believe that the System will function where a car cuts off or merges in front of a commercial vehicle.[5]

Here, Brian and Daniel entered the lane ahead of Hayes approximately four seconds prior to impact. (Id., ¶ 2, Exh. A; Arst Decl., ¶ 6.) Approximately 3 seconds before impact, data from the Safety Direct Processor (“SDP”) from the System shows that Hayes’ tractor recognized a vehicle that was approximately 177 feet ahead, even though the System is advertised to be capable of recognizing objects in the road ahead at least 500 feet away. (Arst Decl., ¶¶ 11(a) and 16; McDermott Decl., ¶ 24, Exh. N.) At approximately 2.5 seconds prior to impact, the System issued an impact alert/warning. (Arst Decl., ¶ 11(b); McDermott Decl., ¶ 24, Exh. N.) At approximately 2 seconds prior to impact, the System requested application of the autonomous braking; this was up to 1.5 seconds less than the 3.5 seconds of braking advertised by Bendix. (Arst Decl., ¶¶ 11(d) and 14); McDermott Decl., ¶ 24, Exh. N.) At approximately 1.75 seconds prior to impact, Hayes requested the brakes himself. (Arst Decl., ¶ 11(e); McDermott Decl., ¶ 24, Exh. N.)

Additionally, the SDP data points only reflect concurrent quarter-second snapshots and thus show events which could have occurred at any point in the preceding quarter-second. (McDermott Decl., ¶¶ 24 and 33, Exhs. N and W [i.e.., 169:2-175:10]). The System’s request for braking, then, may have come as little as 0.01 seconds before Hayes applied the brakes on his own. (Arst Decl., ¶ 15.) An automatic braking system that applies the brakes at essentially the same time as a driver does not provide any meaningful safety enhancement.

Mechanical engineer Jason Arst (“Arst”) represents that the System first recognized a vehicle when it was 177 feet ahead (i.e., rather than the 500 feet stated in the Manual), which was 3 seconds prior to impact. (Arst Decl., ¶ 16). Arst further represents he has run simulations based on the information provided on the subject impact in the SDP report and on his inspection and measurements of the roadway where the accident occurred. (Arst Decl., ¶ 12). Arst took the approximate rate of change in velocity of Hayes’ truck shown in the data contained in the SDP report and then extended that decleration rate over the time period of 3 seconds and 3.5 seconds. (Id., ¶ 13.) Arst concluded that, in the case of braking either 3 or 3.5 seconds prior to impact, the subject collision would not have occurred based on Daniel’s speed and trajectory to the far right shoulder. (Arst Decl., ¶ 12.) If the System had automatically engaged the brakes when it first saw the vehicles ahead 3 seconds prior to the impact, the collision could have been avoided. Bendix has not presented any evidence to dispute Arst’s opinions.

Further, while Bendix asserts that “this collision was caused entirely by Hayes’ error and inattentiveness” (Opp. 4:13-14), referencing the Traffic Collision report and the Bendix Data Recorder Report as to his “excessive speed,” mechanical engineer and certified human factors professional Michael J. Kuzel (“Kuzel”) has opined, based upon the dash cam video, Brian’s deposition transcript, SDP data and the Traffic Collision report, that “given the placement and speed of the vehicles of Daniel and Brian Lopez and the standard perception-reaction time of a reasonable driver, the subject impact was unavoidable,” that “Hayes’ perception-reaction time was approximately 0.75 seconds,” that “even if Hayes did not recognize the impact warning provided,. . . [his] perception-reaction time was reasonable under the circumstances,” that “[his] speed had no impact on his perception-reaction time” and that “[i]nstead, the speed of the Lopez vehicles traveling ahead of Hayes made it impossible for [him] to react in time to prevent this incident.” (Kuzel Decl., ¶¶ 8-10). Bendix has not presented any evidence to dispute Kuzel’s opinions.

Again, Settling Defendants have agreed to pay $3,000,000.00 (sliding scale) to Settling Claimants. The settlement is allocated $30,000.00 to Brian and $2.97 million to Daniel and Garcia. (McDermott Decl., ¶¶ 16 and 20).

The Settling Defendants are paying the entirety of their available insurance policies. (Id., ¶ 20.)

There is no evidence of collusion, fraud or tortious conduct between Settling Defendants and Settling Claimants.

Bendix has not produced evidence of any additional exposure from any indemnity liability.

The Tech-Bilt factors have been addressed above. Further, on November 8, 2022, all parties attended mediation. (McDermott Decl., ¶ 21.) Jackson Group has settled with Settling Claimants; however, Bendix had not made any offer whatsoever, to date. (Id.) “[A] court can give recognition to the positive role sliding scale agreements may have in deterring unreasonable nonparticipation in settlement negotiations.” (Abbott Ford, Inc., supra, 43 Cal.3d at 882.) Finally, the Settlement Agreement in issue provides for no veto power to any party. (McDermott Decl., ¶ 19.)

The court determines that the settlement agreement entered into between Settling Defendants and Settling Claimants was made in good faith. Bendix has not shown “that the settlement is so far ‘out of the ballpark’ as to be inconsistent with the equitable goals of section 877.6” (Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4^th 865, 873). The motion is granted.

[1] Civil Code § 3333.4 reads as follows:

(a) Except as provided in subdivision (c), in any action to recover damages arising out of the operation or use of a motor vehicle, a person shall not recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if any of the following applies:

(1) The injured person was at the time of the accident operating the vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense.

(2) The injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.

(3) The injured person was the operator of a vehicle involved in the accident and the operator can not establish his or her financial responsibility as required by the financial responsibility laws of this state.

(b) Except as provided in subdivision (c), an insurer shall not be liable, directly or indirectly, under a policy of liability or uninsured motorist insurance to indemnify for non-economic losses of a person injured as described in subdivision (a).

(c) In the event a person described in paragraph (2) of subdivision (a) was injured by a motorist who at the time of the accident was operating hir or her vehicle in violation of Section 23152 or 23153 of the Vehicle Code, and was convicted of that offense, the injured person shall not be barred from recovering non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages.”

[2] After the court issued its final ruling on this matter, Bendix brought an ex parte application requesting that the court excise this Part, Part B, of the order as “unnecessary” to its decision. Bendix appears to misunderstand the nature of this Part, which has no preclusive effect on facts that will be presented to the jury at trial. How the Settling Defendants viewed the liability of Bendix vis-à-vis themselves is directly relevant to assessing the Settling Defendants’ good faith under Code of Civil Procedure 877.6. Instead of finding these as being facts, the court merely finds that this was the Settling Defendants’ view of the facts at the time of entering into their settlement agreement. In reaching its conclusion on this specific issue, the court reviewed and weighed all of the facts submitted. To be clear, in this Order, the court makes no determination as to the actual facts at issue at trial vis-a-vis Bendix, only that the Settling Defendants acted in good faith.

[3] The traffic report states that Brian and Daniel were traveling at approximately 10-15 mph, whereas Brian testified that they were traveling between 15-20 mph. (McDermott Decl., ¶¶ 2 and 3, Exhs. A and B [i.e., 78:14-17].)

[4] Settling Defendants failed to include page 14 of Exhibit C in their motion; however, this was attached as Exhibit 12 to the Declaration of Robert R. Martinez filed concurrently with Bendix’s opposition. Page 14 provides that “[i]f a collision is likely to occur the System can provide a warning and/or apply the vehicle brakes” and that “[a]n alert may be issued up to three and one-half (3.5) seconds prior to impact, which would suggest that it is also capable of applying braking at such time.

[5] At oral argument Bendix argued that consumer expectation is not the standard applicable to this claim, that there is no evidence that Settling Claimants were aware of the representations of its system, and that the Court should apply a “risk assessment” analysis. The Court has reviewed Bendix’s opposition, and these arguments are not made. Without legal support for these arguments, the Court disregards them.