2012-00121312-CU-PL

Rachel Fuston vs. Bond Manufacturing Co

Nature of Proceeding:    Determination of Good Faith Settlement (Wal-Mart Stores Inc)

Filed By:  Oh, Jacqueline K.

The Application of Defendant Wal-Mart for determination of good faith settlement with
plaintiff is unopposed but is DENIED, without prejudice.

The notice of motion does not provide notice of the Court’s tentative ruling system as
required by with C.R.C., Rule 3.1308 and Local Rule 3.04(D).  Local Rules for the
Sacramento Superior Court are available on the Court’s website at
<http://www.saccourt.ca.gov/local-rules/local-rules.aspx> Counsel for moving party is
ordered to notify opposing party immediately of the tentative ruling system and to 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 3.04(B).
The instant action is one which sounds in strict products liability and negligence
(products liability), and seeks damages for alleged severe burn injuries related to the
use of a gel fuel product. Bond Manufacturing Co. is named as a defendant. Bond
answered the complaint and filed a cross-complaint for equitable indemnity, breach of
contract, et. als.  Moving party Wal-Mart Stores Inc. was added as a defendant,
effective July 9, 2013.

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.) Settling defendants may properly pay less than their proportional share of
the anticipated damages. In order to encourage settlement, what is required is simply
that the settlement not be grossly disproportionate to the settlor’s fair share of liability.
This determination is made based on the information available at the time of the
settlement. ( Tech-Bilt, supra, 38 Cal.3d at p. 499.) Of course, all this presupposes that
the settling party has presented a prima facie showing of good faith by addressing the
Tech-Bilt factors in the first instance.

Wal Mart’s counsel declares that Wal Mart has settled with plaintiff for an undisclosed
amount and the settlement is to remain confidential. Wal Mart offers to submit
evidence for in camera review, but has not done so. It should have.  Although counsel
declares that all requirements of C.C.P., sec. 877.6 have been satisfied, in the
absence of admissible evidence for the court’s review, the Court cannot conclude that
settlement appears to be reasonable and in good faith considering the factors set forth
in Tech-Bilt Inc. v Woodward Clyde & Associates , supra, 38 Cal.3d  at p. 499; CCP
877.6.  Generally, courts are reluctant to put their imprimatur on orders where they are
kept in the dark. See, e.g. Mediplex of California, Inc. v. Superior Court (1995) 34
Cal.App.4th 748, 749. The court recognizes the instant motion is unopposed, and
therefore a barebones motion is sufficient to satisfy  Tech-Bilt–but the court may not
and should not rule on such a motion wholly bereft of any evidentiary showing
presented to the reviewing judge.

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

Item  3     2012-00121312-CU-PL

Rachel Fuston vs. Bond Manufacturing Co

Nature of Proceeding:    Motion to Compel Appearance at Deposition and Production of

Filed By:   Roussas, John G.

Defendant Bond Manufacturing Co.’s Motion to Compel Plaintiff Rachel Fuston and
Andrew Taylor to Appear and Produce Documents at Deposition is GRANTED.
The Court finds good cause exists for a second deposition of Rachel Fuston and
Andrew Taylor.

In this personal injury, products liability action plaintiff alleges she was injured when
her host at a party filled a Tiki-type torch with fuel near an open flame.  Defendant
Bond is the distributor of the gel fuel.

The Court finds that Defendant has been diligent in attempting to obtain responses to
written discovery served on June 5, 2012 (Request for Production of Documents,
Special Interrogatories, Requests for Admission and Form Interrogatories.)  However,
plaintiff’s responses, and supplemental responses, have been evasive and incomplete.
In response to the relevant inquiries regarding how the incident occurred and the
products involved, plaintiff produced 11 photographs, 9 of her injuries and two low
quality photographs.

It was not until plaintiff’s counsel took the deposition of Bond’s PMK on March 11,
2014, that 21 high quality photographs appeared, to the surprise of defendant. Any
prior assertion of attorney work-product was waived by counsel’s use of those
photographs.

Additionally, plaintiff is claiming lost wages from Thunder Valley Casino, but the
Casino asserts sovereign immunity from discovery requests by defendant Bond and
refuses to produce any records.  Thunder Valley has agreed to produce payroll
records in response to plaintiff’s request.

The Court finds that good cause exists for a second deposition of plaintiff and Taylor.
C.C.P., sec. 2025.610(b).

Plaintiff and Taylor shall appear for their continued depositions, and produce all
documents requested by Bond on dates to be scheduled for mutually convenient
times, but not later than June 20, 2014.  Plaintiff is ordered to obtain and produce all
relevant records requested by Bond, at her continued deposition.

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