2011-00109967-CU-PO

Betty Green vs. J & D Greenberg Enterprises Inc

Nature of Proceeding:    Determination of Good Faith Settlement (1-888-Abastement Inc)

Filed By:  Wilcox, Wendy L.

Defendant 1-888-4 Abatement, Inc.’s (“Abatement”) Motion for Determination of Good
Faith Settlement is GRANTED, in part, and DENIED, in part.

This action arises from the attempted repair of concrete slab leak at Plaintiffs’ home.
Plaintiffs allege that they contacted defendant J&D Greenberg Enterprises, Inc. dba
Ace Plumbing Heating & Air (“Ace”) who broke the floor tiles and the underlying
concrete slab without first determining whether the flooring contained asbestos.
Plaintiffs allege that Ace’s jack-hammering cause a dense dust that contained
asbestos fibers which filled the home.  Plaintiffs allege that Ace also cut a hole into the
wall-texture and wallboard, which both contained asbestos.   Asbestos testing revealed
that the wall texture, wallboard, and tiles contained asbestos.  Plaintiffs’ insurance
company contracted with Abatement to remove the asbestos containing material.
Plaintiffs allege that Abatement removed the tiles from the living room, but left a black
adhesive (“black mastic”) which also contained asbestos.  The presence of the black
mastic caused the need for further abatement.  The black mastic was removed using a
noxious solvent known as Oil-Flo 141, which is a carcinogen and produces poisonous
gases in fires.  However, noxious fumes and odors remained and Plaintiffs were
directed to temporarily relocate.  Plaintiffs allege personal injuries as well as property
damage.

Plaintiffs settled with Abatement for $68,000 allocated as follows:

·  $32,500 to Betty Green
·  $32,000 to Donna Russell-Cox     ·  $3,000 to Randy Cox, and
·  $500 to Natalie Cox

Ace opposes the motion for good faith settlement.

In considering whether a settlement is entered in good faith, the court considers the
following factors: (1) a rough approximation of the plaintiffs’ total recovery and the
settling party’s proportionate liability; (2) the amount to be paid in the settlement; (3)
the proposed allocation of the settlement proceeds; (4) a recognition that the settling
parties should pay less in settlement than if they were found to be liable after trial; (5)
the financial condition of the settling parties, and the insurance policy limits, if any; and
(6) the existence of collusion, fraud or tortuous conduct aimed to injure the interests of
the non-settling defendants. (Tech-Bilt v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d
488, 499.) The ultimate test is whether the settlement is grossly disproportionate to
what a reasonable person at the time of settlement would estimate the settlor’s liability
to be. (Id.)

At the outset, Ace bears the burden of demonstrating that the settlement is so far out
of the ballpark in relation to the Tech-Bilt factors as to be inconsistent with the
objectives of the good faith settlement statute. (Code Civ. Proc. §877.6(d);  Tech-Bilt,
supra, at 499-500.)  Ace argues that the settlement is disproportionate to Plaintiffs’
injuries purportedly arising from Abatement’s work.  Ace contends that Plaintiffs seek
more than $600,000 in damages.  Ace argues that Plaintiffs’ discovery responses state
that their damages a result of exposure to the noxious fumes are:

·  Betty Green – $36,008.72 for lost rental income to date, and diminution in
property value of rental income (amount unknown).
·  Donna Russell-Cox – $250,000 personal injury for exposure to noxious fumes,
and personal property damage of $256,831.59.
·  Randy Cox – personal injuries for exposure to noxious solvents resulting in
Shingles.

The Court notes, however, that Ace fails to support its motion with Ms. Cox’s and Mr.
Cox’s discovery responses.  The only discovery responses that Ace proffers are Ms.
Green’s responses to Form Interrogatories. Ace also proffers an itemized list of
property that Ms. Cox claims was damaged which amounts to approximately
$256,831.  There is no evidentiary support for Ace’s claim that Ms. Cox is seeking
$250,000 in personal injuries or that Mr. Cox is seeking damages for personal injuries.
Thus, given the current record, it appears to the Court that Plaintiffs are seeking
significantly less than the $600,000 that Ace claims Plaintiffs will seek at trial.

In reply, Abatement contends that they have no liability because Plaintiffs’ discovery
responses demonstrate that Plaintiffs are unable to produce any evidence of
contamination resulting in either personal injury or property damage.  Abatement
further proffers evidence that Ms. Cox has not produced any expert evidence to
support a causal connection between her personal injury claims and the Oil-Flo 141.
According to Abatement, it was prepared to file a motion for summary judgment on the
above grounds and provided a copy to the mediator to give to opposing counsel.
Nonetheless, Abatement decided to settle to avoid the cost and uncertainty associated
with future litigation.             Given the record before it, the Court finds that Ace fails to satisfy its burden to
demonstrate that the settlement is so far out of the ballpark in relation to the  Tech-Bilt
factors as to be inconsistent with the objectives of the good faith settlement statute.
The Court finds the settlement to be in good faith within the meaning of  Tech-Bilt v.
Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488   and therefore, it shall have the
effect prescribed in Code of Civil Procedure §877 and §877.6.

Accordingly, the motion is GRANTED.

However, the motion is denied to the extent it seeks the dismissal of any pleadings
since the notice of motion fails to comply with the express requirements of CRC Rule
3.1382. Accordingly, the Court declines to sign the proposed order submitted with the
moving papers.

The minute order is effective immediately.  No formal order pursuant to CRC Rule
3.1312 or further notice is required.

The notice of motion does not provide notice of the Court’s tentative ruling system, as
required by Local Rule 1.06(A).  Abatement’s counsel is directed to contact opposing
counsels forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative
ruling procedure.  If Abatement’s counsel is unable to contact opposing counsels prior
to hearing, Abatement’s counsel shall be available at the hearing, in person or by
telephone, in the event opposing party appears without following the procedures set
forth in Local Rule 1.06(A).

The court notes that moving party has indicated the incorrect address in its notice of
motion.  The correct address for Department 54 of the Sacramento County Superior
th
Court is 800 9   Street, Sacramento California  95814.  Moving party shall notify
responding party(ies) immediately.