Case Number: BC529864 Hearing Date: May 09, 2016 Dept: 34

SUBJECT: Motion for determination of good faith settlement

Moving Party: Defendants J.B. Hunt Transport Inc. and Aaron Joseph Davis

Resp. Party: Defendants FedEx Group Package System Inc., Jose Alfonso Guerrero, and MG Logistics Inc.

The Motion for Determination of Good Faith Settlement is GRANTED.

J.B. Hunt’s Objections paragraphs 3, 5, 6, 8, 10, 11, 12, 16, 18, 19, 20, 21, and 22 of the Justin Lowtrip Declaration are SUSTAINED. The Remaining objections are DENIED.

BACKGROUND:

Plaintiffs Estate of Jin K. Kim, Man K. Kim, and Eui S. Kim filed this action against several defendants for negligence, dangerous condition of public property, failure to warn of dangerous condition of public property, and survival action. The action pertained to an automobile accident between vehicles driven by Jin K. Kim, Aaron Joseph Davis (who was driving a truck for J.B. Hunt) and Jose Alfonso Guerrero (who was driving a truck for FedEx). Jin K. Kim’s vehicle collided with Davis’s truck and Kim survived. After the first collision, the truck driven by Guerrero collided with Kim’s vehicle, resulting in Kim’s death.

A cross-complaint was filed by defendant J. McLoughlin Engineering Co., Inc., on 2/18/14.

A cross-complaint was filed by FedEx on 3/4/14 against Davis and J.B. Hunt for indemnity, contribution, and declaratory relief.

A cross-complaint was filed by Davis and J.B. Hunt on 3/25/14 against FedEx, Guerrero, and others for indemnity, contribution, comparative fault, and declaratory relief.

A notice of settlement of entire case was filed on 9/9/15.

On 12/1/15, plaintiffs dismissed their complaint with prejudice.

On 1/12/16, J. McLoughlin Engineering Co., Inc., dismissed its cross-complaint.

ANALYSIS:

Davis and J.B. Hunt move for a determination that a god faith settlement was entered into between Davis and J.B. Hunt and plaintiffs.

“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 obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6(a)(1).) The moving parties provide proof of service for this motion.

Procedurally, a motion for determination of good faith settlement must list each party and pleading, or portion thereof, affected by the settlement, and the date that pleading was filed. (Cal. Rules of Court, rule 3.1382.) The instant motion identifies the parties to the purported settlement agreement. (See Notice, p. 2.) The motion fails to identify the pleadings affected by the settlement; however, it appears that the settlement will affect the two remaining cross-complaints.

A “determination by the court that the 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(c).)

The factors considered in determining good faith include: the rough approximation of plaintiff’s total recovery and settlor’s proportionate liability; the amount paid in settlement; the allocation of settlement proceeds among the plaintiffs; a recognition that a settlor should pay less in settlement than if found liable after a trial; the settlor’s financial condition and insurance limits; and evidence of 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, Inc. v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, 499.) Where an application is opposed, the moving party must show by competent evidence all Tech Bilt factors. (Mediplex of Cal. v. Sup. Ct. (1995) 34 Cal.App.4th 748, 753, fn.4; Greshko v. Los Angeles (1987) 194 Cal.App.3d 822.) “[T]he determination whether the settlement was in good faith must be based on competent, admissible evidence.” (Brehm Communities v. Sup. Ct. (2001) 88 Cal.App.4th 730, 736.) A determination of a good faith settlement must be supported by substantial evidence. (Norco Delivery Service, Inc. v. Owens Corning Fiberglas (1998) 64 Cal.App.4th 955, 962.) Parties challenging the good faith nature of a settlement agreement have the burden to demonstrate that it lies so far “out of the ballpark” of the Tech Bilt factors that it is inconsistent with the equitable objectives of the statute. (Nutrition Now, Inc. v. Sup. Ct. (2003) 105 Cal.App.4th 209, 213 214.)

The moving parties reached a settlement with plaintiffs for plaintiffs to dismiss the action with prejudice in exchange for a waiver of costs. (See Dubrawski Decl., ¶ 9.) The moving parties’ counsel declares that the costs that could have been recovered totaled $6,587.89. (Ibid.)

The opposing parties argue that the settlement amount does not reflect Davis and J.B. Hunt’s proportionate liability. The opposing parties dispute that Davis and J.B. Hunt were not at fault for the accidents or Kim’s death. For the most part, the opposing parties rely on the declaration from their counsel, who fails to establish personal knowledge as to the facts related to the accident. (See Court’s ruling on Objections to Lowtrip Decl., above.) However, the opposing parties provide portions of Davis’s deposition transcript wherein he admits that he failed to place flares or triangles behind his vehicle within ten minutes of the accident, in violation of Federal Motor Carrier Safety Regulation section 392.22. (See id., Exhs. A, B, D.) The opposing parties contend that had Davis placed the flares or reflective triangles, Guerrero could have avoided colliding with Kim’s vehicle. (Id., ¶ 20.)

Opposing parties argue that “It is impossible to determine whether the settlement was made in good faith because the full monetary value of the settlement can not be determined.” (Opposition, p. 9:17-18.) According to the opposing parties, “[s]ince the amount of settlement between Plaintiffs’ [sic] and Defendants was confidential, Cross Defendants [sic] do not know the monetary amount of the settlement. Thus it is impossible for Cross-Defendants to show the Court that a waiver of costs is in “reasonable range”/“ballpark” of settlement on their proportion of liability.” (Opposition, p. 10:2-5.)

The Court finds this argument to be disingenuous. Cross-Defendants FedEx, Guerrero and MG Logistics claim that they “do not know the monetary amount of the settlement” because the agreement was confidential. (Id.) But FedEx, Guerrero and MG Logistics were parties to that confidential agreement; although the moving parties may not know the value of the settlement agreement to which they were not parties, certainly opposing parties know the value of the agreement they themselves signed.

Parties challenging the good faith nature of a settlement agreement have the burden to demonstrate that it lies so far “out of the ballpark” of the Tech Bilt factors that it is inconsistent with the equitable objectives of the statute. (Nutrition Now, Inc. v. Sup. Ct. (2003) 105 Cal.App.4th 209, 213 214.)

The opposing parties have not met this burden.

The motion for good faith settlement is GRANTED.