Margaret Murray v. Orchard Supply Hardware, 17CV-0027

Hearing: Motion for Good Faith Settlement Motion to Continue Trial (both continued from March 14, 2018 ex parte)

Date: March 22, 2018

Before the Court are two motions in this matter:

1. A motion for good faith settlement, filed by Defendants/Cross-Complainants/CrossDefendants Orchard Supply Hardware, LLC, National Retail Properties LP, and Greg Madrigal; and

2. A motion for trial continuance filed by Defendant/Cross-Defendant/Cross-Complainant Pac Plaza Properties, LP.

Procedural History.

Margaret Murray (“Plaintiff”) filed this personal injury action on January 18, 2017, against Orchard Supply Hardware, LLC; National Retail Properties LP; and Greg Madrigal (collectively the “OSH Defendants”). Plaintiff alleges that she was injured on January 28, 2015, when she tripped and fell on an asphalt ramp adjacent to the parking lot outside the OSH store located in Pismo Beach, California. Plaintiff’s injuries included the surgical removal of her right eye and a fractured right wrist.

On August 18, 2017, the OSH Defendants filed a cross-complaint against various CrossDefendants, including Pac Plaza Properties, LP (“Pac Plaza”). In their cross-complaint, the OSH Defendants allege Cross-Defendants were responsible for maintaining the premises and designing, resurfacing, and constructing the ramp where Plaintiff fell. The OSH Defendants further allege that Pac Plaza failed to name the OSH Defendants as additional insureds under the insurance policy for the OSH shopping center, despite Pac Plaza’s contractual obligation to do so, and despite the fact that the OSH Defendants paid Pac Plaza each month to purchase the insurance.

On October 4, 2017, Pac Plaza filed a cross-complaint against the OSH Defendants asserting claims for declaratory relief and equitable indemnity/contribution.

Plaintiff’s motion for preference was granted on December 21, 2017, and trial is currently set for April 16, 2018. The discovery cut-off was March 16, 2018.

The Parties mediated on February 27, 2018. Post-mediation, Plaintiff has now settled her claims against the OSH Defendants pursuant to a confidential settlement agreement filed with the Court
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under seal. Cross-Defendants Toste Grading & Paving, Inc. and Toste Construction, Inc.’s motion for good faith settlement was granted on March 6, 2018. Thus, the only remaining claims in this lawsuit are the dueling cross-complaints filed by the OSH Defendants and Pac Plaza.

On March 8, 2018, Pac Plaza’s current counsel, Lisa N. Shyer, substituted in for former counsel, Steven C. Clark. On March 9, 2018, Clayton U. Hall associated in Pac Plaza’s representation.

Motion for Good Faith Settlement.

The OSH Defendants move for an order determining their settlement with Plaintiff is in good faith, thereby dismissing Pac Plaza’s cross-complaint against the OSH Defendants. (Code Civ. Proc., § 877.6, et seq.) The OSH Defendants’ motion is unopposed.

As outlined in Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, the Court must weigh various factors and analyze whether the amount of the proposed settlement is within the “reasonable range” of the settling defendant’s proportional share of comparative liability for the plaintiff’s injuries. Here, the amount the OSH Defendants have agreed to pay in settlement appears to be within the reasonable range based upon the claims asserted in the lawsuit, Plaintiff’s alleged injuries, and the OSH Defendants’ available defenses. The lack of any opposition to the OSH Defendants’ motion is construed as an admission that the motion is meritorious. (Weil & Brown, Cal. Prac. Guide: Civil Pro. Before Trial (The Rutter Group 2017) Ch. 9(1)-C, § 9:105.10; see also City of Grand Terrance v. Sup. Ct. (1087) 192 Cal.App.3d 1251, 1261.)

The granting of the OSH Defendants’ motion bars the nonsettling Cross-Defendants from any further claims against the OSH Defendants for equitable comparative contribution, or partial or comparative indemnity. (Code Civ. Proc., § 877.6(c); see Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 640.) Thus, upon determining a settlement is in “good faith,” the Court may dismiss the nonsettling tortfeasors’ indemnity claims against the settling tortfeasor, if the moving papers so request. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2017) Ch. 9(1)-C, § 12:910; Mid-Century Ins. Exch. V. Daimler-Chrysler Corp. (2001) 93 Cal.App.4th 310, 315 [bar on contribution and indemnification claims includes indemnity cross-complaints in the underlying tort case].)

The OSH Defendants’ unopposed motion for determination of good faith settlement is granted. Pac Plaza’s cross-complaint against the OSH Defendants is dismissed with prejudice.

Motion for Trial Continuance.

While “continuances of trials are disfavored, each request for a continuance must be considered on its own merits.” (Cal. Rule of Court, rule 3.1332(c).) The Court may grant a continuance on an affirmative showing of good cause. (Ibid.) Circumstances indicating good cause include, among other things, “the substitution of trial counsel, but only here there is an affirmative showing that the substitution is required in the interests of justice.” (Id. at subd. (c)(4).) In ruling
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on a continuance motion, the Court must consider all the facts and circumstances relevant to the determination. (Cal. Rule of Court, rule 3.1332(d)1.)

Pac Plaza cites the following grounds for continuing trial: (1) Plaintiff was the only party entitled to preference, and because she has settled her claims, this case is no longer entitled to preference; (2) Pac Plaza recently substituted in new counsel; (3) Pac Plaza’s new counsel will have inadequate time to prepare the case for the April 16, 2018 trial date; (4) Pac Plaza’s counsel will be unable to prepare and conduct important discovery, including depositions, and re-evaluation of expert witness discovery; and (5) the remaining parties (presumably the OSH Defendants and Pac Plaza) are “actively participating in settlement discussions.” (Ex Parte App., p. 2, ll. 6-19.)

The OSH Defendants oppose Pac Plaza’s application, arguing that: Pac Plaza’s failure to conduct discovery is an invalid reason for a continuance; Pac Plaza’s claimed need to “reevaluate its expert witnesses” is an invalid reason for a continuance; and that the retention of new counsel is not grounds for a continuance. The OSH Defendants further claim that Pac Plaza failed to timely notice relevant depositions, including OSH Defendant Mr. Madrigal and persons most knowledgeable for the OSH Defendants. (Opp., p. 3, ll. 11-13.) The OSH Defendants also argue that Pac Plaza failed to timely respond to OSH’s discovery requests2. (Id. at p. 3, ll. 13-14.)

This case’s original trial date, April 16, 2018, was based on Plaintiff’s motion for preference. Plaintiff has now settled her claims, and the only claims at issue are those asserted in the OSH Defendants’ cross-complaint against Pac Plaza and other Cross-Defendants. Given the absence of preference, the recent substitution of Pac Plaza’s counsel, and that this is the first request for a continuance in this case, Pac Plaza’s motion is granted. (See Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759, 766 [where denial of a continuance would result in manifest injustice, policy disfavoring continuances must give way].)

1 Factors to consider include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court’s calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.

2 The record does not reflect any motions to compel filed by any party in this action