Tentative Rulings for July 16, 2019 Departments …...2019/07/16 · 1 Tentative Rulings for July 16, 2019 Departments 403, 501, 502, 503 There are no tentative rulings for the following

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Tentative Rulings for July 16, 2019

Departments 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

17CECG01473 Mantizo v. Janda et al. (Dept. 403)

19CECG01948 Sandhu v. Sandhu, et al. (Dept. 502)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

17CECG01971 Doe v. Peña is continued to Thursday, August 1, 2019, at 3:30 p.m. in

Department 503.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(17) Tentative Ruling

Re: Moua v. Hmong Cultural New Year Celebration, Inc.

Court Case No. 19CECG00114

Hearing Date: July 16, 2019 (Dept. 403)

Motion: Petitioners’ Motion for “Court to Decide Petition for Writ of Mandate

on the Pleadings”

Tentative Ruling:

To deny.

Explanation:

Motion for Judgment on the Pleadings

Petitioners request that the court “take the Petition and Verified Answer under

submission without further briefing or presentation of evidence,” “decide the matter on

the pleadings,” and decide the Petition on the “pleadings alone and without further

unnecessary litigation.” (Petitioners’ Memorandum of Points and Authorities at 3:9-10,

4:22-23, 9:16-17.)

California is a code pleading state. The Code of Civil Procedure provides that

pleadings are the formal allegations by the parties of their respective claims and

defenses, for the judgment of the court. (Code Civ. Proc., § 420.) The Code provides

that the pleadings allowed in civil actions are complaints, demurrers, answers, and

cross-complaints. (Code Civ. Proc., § 422.10.) In a writ of mandate proceeding, the

petition is in the nature of a complaint. (Gong v. City of Fremont (1967) 250 Cal.App.2d

568, 573; Code Civ. Proc., § 1109 [A proceeding in mandamus is generally subject to

the general rules of pleading applicable to civil actions.].) Accordingly, petitioners

appear to be bringing a motion for judgment on the pleadings.

A plaintiff (or petitioner) may move for judgment on the pleadings on the ground

that "the complaint states facts sufficient to constitute a cause or causes of action

against the defendant and the answer does not state facts sufficient to constitute a

defense to the complaint." (Code Civ. Proc., § 438, subd. (c)(1)(A).) "The grounds for

motion provided . . . shall appear on the face of the challenged pleading or from any

matter of which the court is required to take judicial notice." (Code Civ. Proc., § 438,

subd. (d).)

A motion for judgment on the pleadings performs the same functions as a

general demurrer. (Barker v. Hull (1987) 191 Cal.App.3d 221, 224.) However, it is not a

demurrer. "A plaintiff may recover judgment on a motion for judgment on the

pleadings only if his complaint states facts sufficient to constitute a cause of action and

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the answer neither raises a material issue nor states a defense. [Citation.]" (Barasch v.

Epstein (1957) 147 Cal.App.2d 439, 440.)

By bringing a motion for judgment on the pleadings, "[t]he moving party admits

the untruth of his own allegations insofar as they have been controverted, and all such

averments must be disregarded whether there is a direct and specific denial or an

indirect denial by virtue of affirmative allegations of a contrary state of facts.

[Citations.]" (Barasch v. Epstein, supra, 147 Cal.App.2d at p. 443 (emphasis added).)

"The motion must be denied if the answer raises a material issue or sets up affirmative

matter constituting a defense." (Id. at p. 442 (emphasis added); see Patterson v. Pacific

Indemnity Co. (1931) 119 Cal.App. 203, 206, ["A plaintiff is not entitled to judgment on

the pleadings if affirmative matter constituting any legal defense is presented by the

answer"].)

An answer may contain a “general or specific denial of the material allegations

of the complaint controverted by the defendant.” (Code Civ. Proc., § 431.30, subd.

(b)(1).) Here, the verified answer makes specific denials to all material factual

allegations. While admitting petitioners are removed directors of HCNYC, respondents

contend that the removal was done lawfully and properly. Code of Civil Procedure

section 431.10, subdivision (a) defines a “material allegation in a pleading” as “one

essential to the claim or defense and which could not be stricken from the pleading

without leaving it insufficient as to that claim or defense.” Accordingly, the answer

“raises a material issue” and the motion for judgment on the pleadings must be

denied. (Barasch v. Epstein, supra, 147 Cal.App.2d at pp. 440, 442.)

Motion for Issuance of the Writ

It is not entirely clear that petitioners seek judgment on the pleadings, as they

seem to admit that he court should take consideration of evidence such as the filed

declarations, which are not properly pleadings. (See Petitioner’s Memorandum of

Points and Authorities at 3:24-4:12, 4:22-27.) It appears that petitioners want the writ to

issue on the state of the record at the present. However, the state of the record is

insufficient for enter judgment for petitioners.

In a petition for writ of mandate, the petitioner always bears the burden of

pleading and proving the facts upon which the claim is based. (Code Cv. Proc., §

1085; Polster v. Sacramento County Office of Educ. (2009) 180 Cal.App.4th 649, 669.)

The petitioner has the burden of showing an abuse of discretion or that there was a

mandatory duty on the part of respondent to act in a particular way. (Arnold v.

Williams (1963) 222 Cal.App.2d 193, 196-197.)

Parties “upon whom the writ or notice has been served may make a return by

demurrer, verified answer or both.” (Code Civ. Proc., § 1089.) An answer must contain

whatever denials that are necessary to controvert the material allegations of the

complaint. Its function is to put the case “at issue” as to all important matters alleged in

the complaint that defendant does not want to admit. (Code Civ. Proc., § 431.30;

Mechling v. Asbestos Defendants (2018) 29 Cal.App.5th 1241, 1248.) Petitioners’ assail

respondents’ evidence as insufficient: “to the extent Respondents maintain that factual

disputes exist, Respondents had ample opportunity to submit evidence with their

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Answer to the Petition.” However, the role of an answer is not to provide evidence,

merely denials. It is not necessary to aver affirmative facts in an answer unless

affirmative defenses are being raised. “The denials of the allegations controverted may

be stated by reference to specific paragraphs or parts of the complaint; or by express

admission of certain allegations of the complaint with a general denial of all of the

allegations not so admitted; or by denial of certain allegations upon information and

belief, or for lack of sufficient information or belief, with a general denial of all

allegations not so denied or expressly admitted.” (Code Civ. Proc., § 431.30, subd. (d).)

In writ proceedings, “ ‘affirmative allegations of the answer are to be taken as true,

unless they are countervailed by pleading or proof presented by the petitioner; to this

extent the answer may be considered as if it were evidence.’ ” (Epstein v. Superior

Court (2011) 193 Cal.App.4th 1405, 1408.)

Petitioners make much about the fact that no trial should be held, nor any

evidentiary hearing. "If no return be made, the case may be heard on the papers of

the applicant. If the return raises only questions of law, or puts in issue immaterial

statements, not affecting the substantial rights of the parties, the court must proceed to

hear or fix a day for hearing the argument of the case. …" (Code Civ. Proc. § 1094.)

However, Code of Civil Procedure section 1090 provides, in relevant part: “[i]f a return

be made, which raises a question as to a matter of fact essential to the determination

of the motion, and affecting the substantial rights of the parties, and upon the

supposed truth of the allegation of which the application for the writ is based, the court

may, in its discretion, order the question to be tried before a jury, and postpone the

argument until such trial can be had, and the verdict certified to the court.” Moreover,

while the general rule is that extra-record evidence is inadmissible in traditional

mandamus actions challenging quasi-legislative administrative decisions, that general

rule does not apply in actions to challenge ministerial or "informal" actions, and

administrative actions that do not involve public hearings are generally considered

"informal.” (Code Civ. Proc., § 1085; Sierra Club v. County of Sonoma (2017) 11

Cal.App.5th 11, 30 fn. 19.) In a traditional mandamus proceeding under section 1085,

whatever evidence is permissible is normally presented by way of declarations,

deposition testimony, requests for judicial notice, or other written materials. The court

has discretion to receive oral testimony for good cause. (Cal. Rules of Court, rule

3.1306.)

Here, an effective return in the form of a verified answer has been filed, placing

at issue the legality of the actions to remove petitioners from the board of HCNYC.

Again, petitioners must prove their allegations of illegal removal with actual evidence.

(Polster v. Sacramento County Office of Educ., supra, 180 Cal.App.4th at p. 669.) If

petitioners intend their motion to be a hearing on the merits of the writ, they fail to meet

their burden of proof. The declaration of Exzong Phong Xiong simply states his “belief”

his removal was unlawful. He offers no evidence as to what day, time or meeting the

removal occurred at, who the directors were at the time, which directors were present,

whether directors not present had proper notice of the meeting, or the voting of any of

the directors. Blong Lee’s declaration is similar. It states a “belief” his removal was

unlawful, without any supporting facts. None of the other petitioners have offered

evidence regarding their own removal.

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Petitioners’ contention that the June 2017 Bylaws are defective as a matter of

law, for failing to provide for a quorum of at least one-third the authorized number of

directors, pursuant to Corporations Code section 307 is unpersuasive. “[T]he June 2017

Bylaws state “quorum for a meeting shall consist of at least twenty (20%) of the active

membership.” (Petition, ¶ 19; Ex. A.) However the cited portion of the June 2017 Bylaws

appears in Article VI, entitled “MEETINGS OF REPRESENTATIVE COUNCIL:”

Section 1. Regular Meetings

Regular meetings of the members shall be held monthly, at a time

and place designated by the chair.

Section 2. Special Meetings

Special meetings may be called by the President to resolve issues

within the Corporation.

Section 3. Quorum

A quorum for a meeting of the members shall consist of at least

twenty percent (20%) of the active membership.

Section 4. Voting

All issues to be voted on- shall be decided by a simple majority of

those present at the meeting in which the vote takes place.

(Petition, Exhibit A.)

Because the Representative Council is a different body than the Board of

Directors (see flow chart attached to Bylaws), the quorum definition in Article VI, has no

relevance to meetings of Directors. In fact, the June 2017 Bylaws do not specify what

the required quorum of Directors is, thus, Corporations Code 307 would apply and the

required quorum would be one-third of the authorized directors. Accordingly,

petitioners have presented no evidence that any meeting at which any petitioner was

removed violated any law.

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure

section 1019.5, subdivision (a), no further written order is necessary. The minute order

adopting this tentative ruling will serve as the order of the court and service by the clerk

will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 7/12/19 .

(Judge’s initials) (Date)

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Re: Villanueva v. Urology Associations

Fresno Superior Court Case No. 17CECG04043


Motion: by plaintiffs for class certification and preliminary approval of class

settlement

Tentative Ruling:

To vacate dismissal of Espitia. To deny this motion without prejudice.

Explanation:

1. Service Inadequate

The proof of service shows service solely on co-counsel and defense counsel.

Labor Code section 2699(l)(2) states: “The superior court shall review and approve any

settlement of any civil action filed pursuant to this part. The proposed settlement shall

be submitted to the agency at the same time that it is submitted to the court.” The

agency in question is the Labor Workforce Development Agency (“LWDA”).

2. Complex Case

The law and motion in this matter is expected to be formidable, as in most class

actions, even if it is resolved by settlement. If the matter goes to trial, there are several

class representatives, a staffing agency that may have been the actual employer of

some class members at some of the pertinent times, and around six years of data on

meal periods and rest periods, as well as pay rates, practices, etc. There is no such

thing as a non-complex class action trial; a judgment requires substantial post-trial

supervision, including notice to all class members of a loss and such notice in addition

to distribution of any award if the action is successful.

The Court finds that California Rules of Court, Rule 3.400(b)(1), (2), and (5) apply

to this case, and that is it therefore deemed complex. The parties are ordered to pay

the complex fees in this case by August 15, 2019.

3. Dismissal

California Rules of Court, Rule 3.770(a) states:

“A dismissal of an entire class action, or of any party or cause of

action in a class action, requires court approval. The court may not

grant a request to dismiss a class action if the court has entered

judgment following final approval of a settlement. Requests for

dismissal must be accompanied by a declaration setting forth the

facts on which the party relies. The declaration must clearly state

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whether consideration, direct or indirect, is being given for the

dismissal and must describe the consideration in detail.”

Because plaintiffs did not follow this rule, the dismissal of plaintiff Espitia must be

vacated.

4. CLASS CERTIFICATION

a. Standards

An agreement of the parties is not sufficient to establish a class for settlement

purposes. There must be an independent assessment by a neutral court of evidence

showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th

81 (rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017)

Section 7:3: “The parties’ representation of an uncontested motion for class

certification does not relieve the Court of the duty of determining whether certification

is appropriate.”

The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620

(“Amchem”): “Confronted with a request for settlement-only class certification, a

district court need not inquire whether the case, if tried, would present intractable

management problems [citation omitted] for the proposal is that there will be no trial.

But other specifications of the rule--those designed to protect absentees by blocking

unwarranted or overbroad class definitions--demand undiluted, even heightened,

attention in the settlement context."

“Class certification requires proof (1) of a sufficiently numerous,

ascertainable class, (2) of a well-defined community of interest, and

(3) that certification will provide substantial benefits to litigants and the

courts, i.e., that proceeding as a class is superior to other methods. In

turn, the community of interest requirement embodies three factors:

(1) predominant common questions of law or fact; (2) class

representatives with claims or defenses typical of the class; and (3)

class representatives who can adequately represent the class.”

In re Tobacco II Cases (2009) 46 Cal. 4th 298, 313.

Admissible evidence is required. California case law requires that substantial

evidence underlie a decision to certify. Richmond v. Dart Industries, Inc. (1981) 29 Cal.

3d 462, 470. “In particular, we must consider whether the record contains substantial

evidence to support the trial court's predominance finding, as a certification ruling not

supported by substantial evidence cannot stand.” Lockhead Martin Corp. v. Superior

Court (2003) 29 Cal. 4th 1096, 1106.

See also Soderstedt v. CBIZ Southern California, LLC (2011) 197 Cal. App. 4th 133,

144, upholding denial of class certification because the moving party failed to present

the necessary admissible evidence in support of his motion. Accord Bennett v. Regents

of University of California (2005) 133 Cal. App. 4th 347, 357, finding the same. And see

Carabini v. Superior Court (1994) 26 Cal. App. 4th 239, 245: “In the absence of

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supporting declarations or other admissible evidence, indicating the communications

were substantially uniform, plaintiffs have yet to establish one of the requisites for the

maintenance of a class action.”

b. Numerosity and Ascertainability

There is no admissible evidence of the number of persons in the case. Plaintiff’s

counsel states there are 85 persons. Counsel cannot testify for his own clients, much less

the other side. The law specifically demands that a client verify the facts, via discovery

or otherwise, as related by counsel, and provides that there is no justifiable reliance on

an attorney's statement of facts. See, e.g., Home Ins. Co. v. Zurich Ins. Co. (2002) 96

Cal. App. 4th 17, 26. Lawyers cannot testify for their clients or authenticate purported

documents of the client. Brown & Weil, Civil Procedure Before Trial (TRG, 2008), § 10:115

- 10:116; Norcal Mutual Ins. Co. v. Newton (2000) 84 Cal. App. 4th 64, 72, fnt. 6; Cullincini

v. Deming (1975) 53 Cal. App. 3d 908, 914; Maltby v. Shook (1955) 131 Cal. App. 2d 349,

351-352. Rodriguez v. County of LA (1985) 171 Cal. App. 3d 171, 175.

The class definition is questionable. It is seeks certification of a settlement class

“comprised of all persons who performed work for Defendant as Medical Assistants and

Receptionists in California at any time from November 3, 2013 to the date of the Court’s

order granting Preliminary Approval.” The problem arises with the fact disclosed in

some of the class representatives’ declaration, that they worked at the behest of

staffing agencies, which means “performed work for” and “employed by” may not be

the same thing. In any case, there is no admissible evidence that the lone defendant

can ascertain who falls within the class definition, because that knowledge is also held

by defendant, not by proposed class counsel, yet only class counsel addresses the

issue.

c. Community of Interest

i. Class Representatives with Typical Claims

“The focus of the typicality requirement entails inquiry as to whether the plaintiff’s

individual circumstances are markedly different or whether the legal theory upon which

the claims are based differ from that upon which the claims of the other class members

will be based.” Classen v. Weller (1983) 145 Cal. App. 3d 27, 46.

Each class representative states that they were denied duty-free meal breaks

and rest periods as required by law. Each states they worked at least some time for

defendant, although several state they also worked at defendant’s location through a

staffing agency, which is unnamed. Another problem arises in that the circumstances

under which the class representatives did not receive the meal breaks and rest periods

are not adequately explained. All state they were required to remain at their work

station at all times, which is understandable for a receptionist, but is unclear where the

worker was a medical assistant.

None of the class representatives have supplied their wage statements, either

from defendant or from the third-party staffing agency. Depending on who paid their

wages, there could be substantial difference between the claims of those who worked

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for such agencies, especially if there were more than one agency. Depending on the

contract between the agency and the defendant, there may be differing

responsibilities imposed on defendant, and/or the class member, depending on the

agency. There is a mention of production of on-duty meal waivers, but there is no

discussion of a practice with regard to same, or whether all or only some of the class

(and class representatives) signed one. If only some of the representatives signed one,

they might not be qualified if the class members generally did not.

The last issue is the fact that none of the proposed class representatives worked

past May of 2017, yet the class period continues on for more than two years, to

whatever date preliminary approval might be given. The claims of those employed

after that date, or placed by a staffing agency after that date, may well be different

from those of the class representatives. There is no proof either way.

ii. Predominant Questions of Fact and Law

“As a general rule, if defendant’s liability can be determined by facts common

to all members of the class, a class will be certified even if the members must

individually prove their damages.” Brinker Restaurant Corp. v. Superior Court (2012) 53

Cal. 4th 1004, 1022.

Handbooks and manuals or other written evidence of employer policies are

commonly used to determine employer practices, typicality, and possible predominant

issues of fact and law. See, e.g., Moore v. Ulta Salon, Cosmetics & Fragrance, Inc. (C.D.

Cal. 2015) 311 F.R.D. 590, 595 and 603; Clausnitzer v. Federal Exp. Corp. (S.D. Fla. 2008)

248 F.R.D. 647, 649 and 656; Butler v. DirectSAT USA, LLC (D. Md. 2014) 47 F. Supp. 3d 300,

308; Romulus v. CVS Pharmacy, Inc. (D. Mass. 2017) 321 F.R.D. 464, 469; Williams v. Sweet

Home Healthcare, LLC (E.D. Pa. 2018) 325 F.R.D. 113, 127; and Benton v. Telecom

Network Specialists, Inc. (2013) 230 Cal. App. 4th 701, 707-708.

While counsel states they obtained employee handbooks from defendant, none

are presented in connection with this motion. No discovery responses are provided.

There is no information about the staffing agencies or their role in putative class

members’ work with defendant. No wage statements from any class member are

provided, nor is it disclosed whether wage statements came from more than one

source due to the staffing agency involvement. The meal waivers are not in evidence,

nor is there a disclosure of number of persons who might be affected by that issue.

“Whatever information may have been exchanged during the mediation, there

was nothing before the court to establish the sufficiency of class counsel's investigation

other than their assurance that they had seen what they needed to see.” Kullar v. Foot

Locker Retail (2008) 168 Cal. App. 4th 116, 129.

“Over the years, numerous courts have also approved the use of statistics,

sampling, policies, administrative practices, anecdotal evidence, deposition testimony

and the like to prove class-wide behavior on the part of defendants.” Capitol People

First v. DDS (2007) 155 Cal. App. 4th 676, 695 (rev. denied). “When using surveys or other

forms of random sampling, it is crucial to utilize a properly credentialed expert who will

be able to explain to the court the methods used to arrive at his or her conclusions and

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persuade the court concerning the soundness of the methodology.” Chin, Wiseman et

al. Employment Litigation (TRG, 2017) section 19:975.3. Counsel’s conclusions based on

his own survey or that of others at his firm are insufficient; an expert is needed if

documentary proof of common practices is not available.

“The essence of the science of inferential statistics is that one may

confidently draw inferences about the whole from a representative

sample of the whole. Whether such inferences are supportable,

however, depends on how representative the sample is. Inferences from

the part to the whole are justified [only] when the sample is

representative. Several considerations determine whether a sample is

sufficiently representative to fairly support inferences about the underlying

population.”

Duran v. U.S. Bank National Ass’n. (2014) 59 Cal. 4th 1, 38.

Those considerations include variability in the population, whether size of the

sample is appropriate, whether the sample is random or infected by selection bias, and

whether the margin of error in the statistical analysis is reasonable. (Id. at pp. 38–46.)

While counsel states they got a 25% sample of some kind, no information about it is

provided to permit the Court to determine if that sampling was valid, or what it showed.

Until there is admissible evidence of policies or procedures with regard to the

claims at issue, there is no means to determine if there are any predominant questions

of law or fact. It may be that individual issues with regard to staffing agencies or

differing practices based on the time of employment are dispositive. At this juncture,

the evidence is deficient. 10S69

iii. Adequacy

"[T]he adequacy inquiry should focus on the abilities of the class representative's

counsel and the existence of conflicts between the representative and other class

members." Caro v. Procter & Gamble Co. (1993) 18 Cal. App. 4th 644, 669. While

counsel has experience, the lack of admissible evidence supporting this motion is a

concern. Another concern is the meal waiver – if all class representatives signed it, and

some class members did not, adequate representation is absent.

5. Settlement

a. Legal Standards

“When, as here, a class settlement is negotiated prior to formal class certification,

there is an increased risk that the named plaintiffs and class counsel will breach the

fiduciary obligations they owe to the absent class members. As a result, such

agreements must withstand an even higher level of scrutiny for evidence of collusion or

other conflicts of interest than is ordinarily required under Rule 23(e) before securing the

court's approval as fair.” Koby v. ARS National Services, Inc. (9th Cir. 2017) 846 F. 3d

1071, 1079.

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See also Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129: “[I]n

the final analysis it is the Court that bears the responsibility to ensure that the recovery

represents a reasonable compromise, given the magnitude and apparent merit of the

claims being released, discounted by the risks and expenses of attempting to establish

and collect on those claims by pursuing litigation. The court has a fiduciary

responsibility as guardians of the rights of the absentee class members when deciding

whether to approve a settlement agreement . . . The courts are supposed to be the

guardians of the class.”

“[T]o protect the interests of absent class members, the court must

independently and objectively analyze the evidence and circumstances before it in

order to determine whether the settlement is in the best interests of those whose claims

will be extinguished . . . [therefore] the factual record before the . . . court must be

sufficiently developed.” (Id. at 130.)

b. Settlement Here Not Supported.

Counsel states that the sampling showed him the maximum liability for unpaid

minimum and overtime wages was exactly $134,167.44. He does not say how he

arrived at that figure, or whether the sampling was designed by an expert or chosen by

defendant. When a sampling is at issue, the basis for the sampling is critical, as noted

above. The figures given in counsel’s declaration may be valid or may not be, but the

scientific underpinnings must be shown to make that assessment. There is no evidence

of any violation rate or average wage, or if there is a difference between the average

wage of a receptionist and a medical assistant (normally the second would have a

higher wage, due to training needed).

Is the $134,167.44 indicative of time actually spent working during rest breaks or

meal periods, and if so, how was that determined? Or was there a presumption that

being required to be at one’s station called for the entire meal/rest period to be

compensated? Were two rest periods per day included, for a total of 50 minutes of

unpaid time? How many work weeks total did class members work? How many of

them were separated from employment during the class period, and why are they

afforded the same settlement as those who do not have such claims?

A separate analysis of the potential value of each claim, the amount accepted

in settlement, and the reasons for such settlement of the specific claim, need be

presented in any further motion.

5. Other Issues

a. Release

The release in the Notice to Class on page 2, paragraph E, includes “the

indemnitee.” The identification of the indemnitee and the basis for indemnification is

not stated, nor is there any statement of what consideration is given by such entity. This

must be explained. See In Walmart Stores Inc. v. Visa U.S.A., Inc. (2nd Cir. 2005) 396 F.

3d 96, 109 concerning release of third parties to the action.

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The release in the settlement and in the Notice to Class must be limited to such

claims as are based on the identical factual predicate of the lawsuit. Limitation of a

class to the same factual predicate is the means by which a class representative can

acquit the rights of other class members who are not parties. This is why “[t]he law is

well established in this Circuit and others that class action releases may include claims

not presented and even those which could not have been presented as long as the

released conduct arises out of the ‘identical factual predicate’ as the settled conduct.”

In re American Exp. Financial Advisors Securities Litigation (2nd Cir. 2011) 672 F. 3d 113.

“A federal court may release not only those claims alleged in the complaint, but

also a claim based on the identical factual predicate as that underlying the claims in

the settled class action even though the claim was not presented . . .” Class Plaintiffs v.

Seattle (9th Cir. 1992) 955 F.2d 1268, 1287. That is why one of the things a plaintiff has to

establish in order to prosecute a class action is the factual predicate on which claims

are based.

See also Matsushita Elec. Indus. Co., Ltd. v. Epstein (1996) 516 U.S. 367, 376-377:

“[I]n order to achieve a comprehensive settlement that would prevent

relitigation of settled questions at the core of a class action, a court may

permit the release of a claim based on the identical factual predicate as

that underlying the claims in the settled class action even though the

claim was not presented and might not have been presentable in the

class action.”

Further, the release in the settlement agreement states that a general release is

not required of class members, but the Notice to Class states they are releasing claims

“known and unknown.” Compare the settlement at 10:8-9 with the Notice to Class at

page 6, paragraph E. A general release is not appropriate absent specific

consideration for same. The differing statements need be reconciled.

b. Attempt to Create Privilege

Paragraph 2.a. on page 4 of the proposed settlement purports to set admissibility

rules for the settlement and related documents and information. That cannot be

approved by the Court, as "Courts may not create nonstatutory privileges as a matter

of judicial policy." Schnabel v. Superior Court (1993) 5 Cal. 4th 704, 720, nt. 4. The

protections already found in California Codes are all that can be imposed.

c. Opt-Out/Objection Procedure

The settlement need provide 60 days for opt-ing out. The same time need be

allotted for filing an objection with the Court, and the Notice to Class must advise the

class members that an objection must be filed with the Court, not merely mailed to the

settlement administrator.

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d. Cy Pres Distribution

Terry’s House, affiliated with Community Medical Centers, is the proposed

recipient of any checks not cashed by class members. Code of Civil Procedure section

384 states that such distribution must be “to nonprofit organizations or foundations to

support projects that will benefit the class or similarly situated persons, or that promote

the law consistent with the objectives and purposes of the underlying cause of action,

to child advocacy programs, or to nonprofit organizations providing civil legal services

to the indigent.”

While Terry’s House is a noble cause, it does not appear to benefit employees

who are the subject of labor violations, child advocacy programs, etc. A recipient

matching the statute’s requirements is needed.

e. Employer Taxes

The moving papers state that the employer’s share of taxes will come from the

settlement, which is not appropriate. See the points and authorities at 2:20-21. The

settlement agreement says that is not the case. (Settlement at 7:13-14.) Reconciliation

is needed.

f. Notice To Class

The fee split between the two law firms is not listed in the Notice to Class. See

Mark v. Spencer (2008) 166 Cal. App. 4th 219 (rev. denied) – failure to reveal fee-

splitting agreement in motions for approval of settlement and class notice means they

cannot be collected.

Ms. Espitia is listed as a named class representative. If she no longer wishes to

participate as such in this case, she should be removed from the notice. Her

inappropriate attempt to dismiss without conforming to the Rules of Court tends to

indicate she is no longer interested in that role.

The moving papers state that the net recovery is estimated to be $374,000, but

the Notice to Class gives an amount $2,000 higher. See page 1, paragraph C. That

same paragraph advises that “each Class Member will on average receive about

$4,423.00 from the Net Settlement.” That statement is misleading. The payment

amount hinges on the number of weeks worked. The notice also states that there is an

application for “a service enhancement to Plaintiffs (not to exceed $5,000.00).” That is

also misleading; it need say $30,000 (or $35,000 if Ms. Espitia is back in).

Lastly, the notice should advise class members they can type in the case number

and view any and all court documents at no cost, as well as download them, from this

link:

14

https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/Dashboard/29

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further

written order is necessary. The minute order adopting this tentative ruling will serve as

the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling



https://publicportal.fresno.courts.ca.gov/FRESNOPORTAL/Home/Dashboard/29

15

2

Tentative Ruling

Re: Simpson v. Clovis Lake Association, LLC

Case No. 17CECG02293


Motion: Compel responses to supplemental interrogatories, set one,

supplemental request for production of documents, set one and

sanctions

Tentative Ruling:

To grant defendant Clovis Lake Associates, LLC’s motion to compel plaintiff

Robin Simpson to provide initial verified responses to supplemental interrogatories, set

one and supplemental request for production of documents, set one. Code of Civil

Procedure sections 2030.070, 2030.290(b), 2031.050, 2031.300(b). Plaintiff Robin Simpson

to provide complete verified responses to all discovery set out above, without objection

within 10 days after service of this order.

To grant defendant Clovis Lake Associates, LLC’s motion for sanctions. Plaintiff

Robin Simpson is ordered to pay $585 in total sanctions to Clark Hill LLP within 30 days

after service of this order. Code of Civil Procedure sections 2030.290(c), 2031.300(c)

Explanation:

Plaintiff asserts that discovery responses were provided. Decl. Milligan ¶3. There

is no evidence that the responses were in substantial compliance with Code of Civil

Procedure sections 2030.210, 2030.220, 2030.230, 2030.240, 2031.210, 2031.220, 2031.230,

2031.240 and 2031.280. The untimely responses do not divest the trial court of authority

to compel responses, rather than being restricted to compelling “further” responses;

under Civil Discovery Act provisions, the court had discretion to rule on motion to

compel responses to ensure that propounding plaintiff received responses it was

entitled to. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)

148 Cal.App.4th 390.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure

section 1019.5(a), no further written order is necessary. The minute order adopting this

tentative ruling will serve as the order of the court and service by the clerk will constitute

notice of the order.

Tentative Ruling



16


Re: Thornton Law Group v. Patterson



Motion: By Plaintiff for Default Judgment.

Tentative Ruling:

To deny without prejudice.

Explanation:

On March 27, 2019, this Court denied the request for entry of default judgment

for several reason, including because the CIV-100 form was not filled out correctly, and

because of issues with the proposed judgment. Although those issues were somewhat

resolved, other issues have arisen, as herein noted:

∙ Plaintiff has not signed box 6, the declaration of mailing, from mandatory

form CIV-100.

∙ In the Proposed Judgment, the “Judgment in the Prior Action” is listed as

for $74,387.88 in paragraph 1, but only $4,905.66 in paragraph 5. Further,

the amount of the judgment listed on the CIV-100 form does not appear

anywhere in the Proposed Judgment.

∙ The interest recorded in the CIV-100 form ($10,414.18) appears nowhere in

the Judgment.

∙ The Judgment seeks to have the “Judgment in the Prior Action” be

declared a lien against real property as of the date of recordation of a Lis

Pendens. Such relief should probably be sought as a post-judgment

motion in the other case. In any event, Plaintiff should provide some legal

basis for this request, especially since it does not appear to be sought in

the Complaint.

∙ Counsel for Plaintiff states that he “believes that Baxter has used some of

Patterson’s funds to purchase a residence” and seeks to have a trust

placed on the property until the prior judgment is paid in full. However,

Plaintiff has provided no prima facie evidence that the property is held in

Ms. Baxter’s name.

∙ Finally, the interest calculations are not set forth anywhere in the papers

on file in the most recent submission.

For all these reasons, the request for entry of default judgment is denied.

17

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The

minute order adopting this tentative ruling will serve as the order of the court and

service by the clerk will constitute notice of the order.

Tentative Ruling



18



Re: Marsoobian, et al. v. Transamerica Life Insurance Company, et al.


Hearing Date: If timely requested on July 15, 2019 oral argument will be held

Thursday July 18, 2019 @ 2:30 p.m. (Dept. 501)

Motion: Summary judgment

Tentative Ruling:

To grant Defendant McQueen Kalligan Insurance Services, Inc.’s unopposed

motion for summary judgment. Moving party is directed to submit to this Court, within

five days of service of the minute order, a proposed judgment consistent with this

Court’s summary judgment order.

Explanation:

A trial court shall grant summary judgment where there are no triable issues of

material fact and the moving party is entitled to judgment as a matter of law. (Code

Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a

prima facie showing of the “nonexistence of any triable issue of material fact[.]”

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[A]ll a defendant needs to

do is to show that the plaintiff cannot establish at least one element of the cause of

action.” (Id. at p. 853.) Where defendant meets this initial burden, the burden shifts to

plaintiff to make a prima facie showing of the existence of a triable issue of material

fact by producing admissible evidence. (Code Civ. Proc. §437(c)(p)(2); Christina C. v.

County of Orange (2013) 220 Cal.App.4th 1371, 1379.) In reviewing a grant of summary

judgment, an appellate court accepts as undisputed facts those portions of the moving

party's evidence that are not contradicted by the opposing party's evidence. (A-H

Plating, Inc. v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427, 434; see Code

Civ. Proc. §437c(c).)

The elements of a negligence cause of action are: “(1) the defendant's legal

duty of care towards the plaintiff, (2) the defendant's breach of that duty, (3) injury to

the plaintiff as a proximate result of the breach, and (4) damage to the plaintiff. A

complaint which lacks facts to show that a duty of care was owed is fatally defective.”

(Jones v. Grewe (1987) 189 Cal.App.3d 950, 954, internal citations omitted.)

The primary method by which a corporation assumes the liabilities of another

corporation is by merger. (Corp. Code §1107(a).) Generally speaking, where a

corporation acquires the assets of another corporation “the rule states that the

purchaser does not assume the seller's liabilities unless (1) there is an express or implied

agreement of assumption, (2) the transaction amounts to a consolidation or merger of

19

the two corporations, (3) the purchasing corporation is a mere continuation of the

seller, or (4) the transfer of assets to the purchaser is for the fraudulent purpose of

escaping liability for the seller's debts.” (Ray v. Alad Corp. (1977) 19 Cal.3d 22, 28.)

In the case at bench, Defendant McQueen Kalligan submits evidence that it did

not issue or sell the policy (UMF 1-3); did not expressly or impliedly assume HRH or Willis’s

liabilities (UMF 5-8); did not merge or consolidate with Defendant HRH or Defendant

Willis (UMF 4-5); is not a mere continuation of HRH or Willis (UMF 5, 7); and that the

transfer of assets was not for the fraudulent purpose of escaping HRH or Willis’s debts

(UMF 8). Defendant McQueen Kalligan establishes that it did not assume HRH or Willis’s

liabilities, if any, associated with the policy at issue, and did not owe Plaintiffs a duty of

care.

Defendant McQueen Kalligan’s burden having been met, the burden shifts to

Plaintiffs to make a prima facie showing of the existence of a triable issue of material

fact. Plaintiffs do not oppose the motion, thus do not meet this burden. Defendant

McQueen Kalligan’s motion for summary judgment is therefore granted.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a) and Code of Civil

Procedure section 1019.5, subdivision (a), no further written order is necessary. The



Tentative Ruling

Issued By: JYH on _7/15/2019__ .


20

(30)

Tentative Ruling

Re: Juan Jose Cabrera v. Western Ag & Turf, Inc.

Superior Court No. 17CECG02256

Hearing Date: If timely requested on July 15, 2019 oral argument will be held

Thursday July 18, 2019 @ 2:30 p.m. (Dept. 501)

Motions (x2): Cross-defendant Pacific Plastics’ motion to strike costs

Cross-complainant Western Ag’s motion to tax costs

Tentative Ruling:

With regard to Pacific Plastics’ motion to strike: to deny, without prejudice.

With regard to Western Ag’s motion to tax costs: to grant. To tax costs in the

amount of $10,240. To award Pacific Plastics costs in the amount of $5,316.78.

Explanation:

1. Pacific Plastics’ Motion to Strike

Pacific Plastics argues that Western Ag is not entitled to costs. First, it argues that

costs are inappropriate because Western Ag is not the “prevailing party.” However,

Western Ag was a cross-defendant in whose favor a dismissal of the cross-complaint

was entered, and as such, it is a “prevailing party.” (Crib Retaining Walls, Inc. v.

NBS/Lowry, Inc. (1996) 47 Cal.App.4th 886, 890; see also Great Western Bank v.

Converse Consultants, Inc. (1997) 58 Cal.App.4th 609, 613.) This is so even though the

dismissal of the cross-complaint was the result of a good faith settlement determination

of the trial court pursuant to Code of Civil Procedure section 877.6. (Crib Retaining

Walls, Inc. v. NBS/Lowry, Inc., supra, 47 Cal.App.4th at p. 890 [A cross-defendant who

obtains the dismissal of the cross-complaint after a good faith settlement with the

plaintiff is the prevailing party for purposes of a cost award.].)

In the alternative, Pacific Plastics argues that Western Ag is not entitled to costs

because Pacific Plastics served Section 998 Statutory Offers to Compromise on both

Western Ag and Gonzalezpaz, which they rejected – and they ultimately failed to

obtain a better result. However, Code of Civil Procedure section 998, subdivision (c)(1)

states only that, “[i]f an offer made by a defendant is not accepted and the plaintiff

fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or

her postoffer costs and shall pay the defendant's costs from the time of the offer.”

(Code Civ. Proc., § 998 emphasis added.) Therefore, Western Ag’s entire request for

costs cannot be stricken pursuant to section 998 – as Pacific Plastics is now requesting—

because not all requests are for postoffer costs.

Accordingly, Pacific Plastics’ motion to strike is denied without prejudice.

21

2. Western Ag’s Motion to Tax Costs

Here, Pacific Plastics seeks reimbursement for expert witness fees. In total, Pacific

Plastics seeks: $ 10,240.

It is undisputed that Western Ag rejected Pacific Plastics’ 998 offer – but that,

Western Ag ultimately obtained a less favorable outcome. Therefore, pursuant to Code

of Civil Procedure section 998, Pacific Plastics is entitled to an award of the expert fees it

is now requesting. (Code Civ. Proc., § 998, subd. (c)(l) [“If an offer made by a

defendant is not accepted and the plaintiff fails to obtain a more favorable judgment

or award . . . the court or arbitrator, in its discretion, may require the plaintiff to pay a

reasonable sum to cover postoffer costs of the services of expert witnesses . . . .”].)

However, this court will nonetheless deny Pacific Plastics’ request for 998 expert

fees because the $1.00 offer that Pacific Plastics made, was not in good faith. Case law

holds that 998 penalties are improper and should be refused where a defendant’s 998

offer was a “token” or “bad faith” offer—that is, that it was an offer as to which there

was no reasonable prospect of acceptance.

Wear v. Calderon (1981) 121 Cal.App.3d 818 is on point. There, a passenger sued

for damages she sustained in a multi-car wreck. The driver of one of the cars served

plaintiff with a one dollar ($1.00) offer, which plaintiff did not beat. The driver sought

expert witness fees, based on 998. (Id. at p. 820.) The trial court awarded those costs,

but the Court of Appeal reversed because “in order to accomplish the legislative

purpose of encouraging settlement of litigation without trial (see Brown v. Nolan (1979)

98 Cal.App.3d 445, 449), a good faith requirement must be read into section 998. In

other words, the pretrial offer of settlement required under section 998 must be

realistically reasonable under the circumstances of the particular case. Normally,

therefore, a token or nominal offer will not satisfy this good faith requirement,

particularly where, as here, there is no crosscomplaint.” (Id. at p. 821.)

The Court of Appeal concluded that the plaintiff was clearly seeking “a

substantial sum of damages in this litigation,” such that the driver knew that a one dollar

offer had no chance of being accepted. (Wear v. Calderon, supra, 121 Cal.App.3d at

p. 821.) “A plaintiff may not reasonably be expected to accept a token or nominal

offer from any defendant exposed to this magnitude of liability unless it is absolutely

clear that no reasonable possibility exists that the defendant will be held liable. If that

truly is the situation, then a plaintiff is likely to dismiss his action without any inducement

whatsoever. But if there is some reasonable possibility, however slight, that a particular

defendant will be held liable, there is practically no chance that a plaintiff will accept a

token or nominal offer of settlement from that defendant in view of the current cost of

preparing a case for trial.” (Ibid.)

Pineda v. Los Angeles Turf Club, Inc. (1980) 112 Cal.App.3d 53, is to the same

effect. There both the trial and appellate courts concluded that a settlement offer of

$2,500 made by a defendant was so disproportionate to the plaintiff‘s demand of $10

million that it was not reasonable, and that the offeror thus could have had no

expectation that it would be accepted. (Id. at pp. 62-63.) From this circumstance, the

appellate court concluded that the “sole purpose of the offer was to make

22

[defendant] eligible for the recovery of large expert witness fees at no real risk.” (Id. at

p. 63.)

Pursuant to the above cited cases, the token $1.00 offer here was in bad faith,

because it had no reasonable chance of being accepted. Even though Western Ag

did not recover more than Pacific Plastics offered, this was still a multi-million dollar case

and there is evidence of Pacific Plastics’ negligence.

In opposition to Pacific Plastics’ motion for determination of good faith

settlement, Western Ag submitted declarations from experts opining that Pacific Plastics

did not conform to industry standards. The settlement was ultimately determined to

have been made in good faith – despite the fact that it seemed disproportionately low,

because Pacific Plastics was able to show that damages or liability were speculative.

However, the expert evidence submitted by Western Ag is nonetheless sufficient to

create the “slight” possibility of liability necessary to render a token offer improper. (See

Wear v. Calderon, supra, 121 Cal.App.3d at p. 821 [token offer is improper where “there

is some reasonable possibility, however slight, that a particular defendant will be held

liable.”].)

Accordingly, Western Ag’s motion to tax costs is granted. Under circumstances,

there was no reasonable probability that Western Ag would have accepted $1.00 to

settle its indemnity claim. That being so, the offer was not in good faith and thus cannot

provide a basis for awarding 998 costs.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure




Tentative Ruling

Issued By: JYH on 7/15/2019 .


23


24


(5)

Tentative Ruling

Re: Smith et al. v. Kings View Corporation et al.

Superior Court Case No. 19CECG00555


In the event oral argument is timely requested, it will

be heard on July 19, 2019, at 9:00 a.m. in Dept. 503.

Motion: Demurrer to the original Complaint by Defendant

Hoover

Tentative Ruling:

To take the demurrer off calendar for failure to comply with Code of Civil

Procedure section 430.41(a). The parties are ordered to meet and confer in person or

via telephone as required by Code of Civil Procedure section 430.41(a). If the meet

and confer is unsuccessful, then the demurring party may calendar a new date for

hearing the demurrer to the original Complaint.

Explanation:

Code of Civil Procedure section 430.41(a) states in relevant part: “Before filing a

demurrer pursuant to this chapter, the demurring party shall meet and confer in person

or by telephone with the party who filed the pleading that is subject to demurrer...”

(Emphasis added.) In the instant case, the parties met and conferred via

correspondence. (See Rusca Decl.) Although the correspondence was detailed, the

statute specifies “in person or by telephone.” Therefore, the demurrer must be taken off

calendar.

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure

section 1019.5, subd. (a), no further written order is necessary. The minute order



Tentative Ruling

Issued By: KAG on 7/15/19.


25


Re: Luna v. Alvarado et al.


Date of Hearing: July 16, 2019 (Dept. 503)

In the event oral argument is timely requested, it will be heard on

July 19, 2019, at 9:00 a.m. in Dept. 503.

Motion: Plaintiff’s motion to set aside the dismissal

Tentative Ruling:

To deny plaintiff’s motion to set aside the dismissal entered on June 29, 2017.

Explanation:

Plaintiff has failed to show that he is entitled to a set aside of the dismissal

entered in this case. Plaintiff has failed to cite to any authority that provides for a set

aside of the dismissal. Plaintiff was provided sufficient notice of the dismissal hearing. In

prior motions and in his appeal, plaintiff acknowledged receiving the court order setting

the dismissal hearing, but contended that he mistakenly believed the dismissal was to

the original complaint and not the amended complaint and decided not to attend.

Now plaintiff asserts that he believed the dismissal was to be without prejudice and that

is why he did not attend. Plaintiff contends that the order that set the dismissal hearing

only mentioned a without prejudice dismissal in its first paragraph, which caused him to

believe dismissal would be without prejudice. Plaintiff’s contention is without merit. The

order states in the first paragraph that the court “denies Plaintiff‘s request to enter

default judgment on declarations, without prejudice.” There was no indication in the

order that any dismissal would be without prejudice.

Plaintiff has failed to show how the first amended complaint could be amended

to state a good cause of action. Plaintiff has not provided a proposed pleading.

Granting the motion would be ineffectual because there is no proposed pleading that

states facts sufficient to state a cause of action.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure




Tentative Ruling



26


Re: Velasco v. American Construction Engineers, LLC et al.




July 19, 2019, at 9:00 a.m. in Dept. 503.

Motion: Plaintiffs’ Motion for Entry of Default Judgment

Tentative Ruling:

To grant Plaintiffs’ motion for entry of default judgment. The Court enters

judgment against defendant American Construction Engineers erroneously sued as

American Construction Engineers, LLC and in favor of Plaintiff Juan Velasco in the

amount of $12,345.31 and Plaintiff Alejandro Calihua in the amount of $11,813.27, plus

costs. The funds on deposit with the Court shall be released to pay the judgment

amount. In the event that the funds on deposit exceed the $24,158.58, remaining funds

on deposit, up to $1,210.03, shall be distributed to the Law Office of Stephan R.

Wattenberg for payment of costs of suit. Plaintiffs to provide a judgment in conformity

with this ruling within 10 days for signature.

The Court notes that the one and only cause of action alleged against the City

of Fresno has been dismissed; therefore, it is no longer an active party on the complaint.

Pursuant to California Rules of Court, Rule 3.1312 and Code of Civil Procedure

section 1019.5, subd. (a), no further written order is necessary. The minute order



Tentative Ruling



27


Re: Li v. Twinn Palms, Inc.




July 19, 2019, at 9:00 a.m. in Dept. 503.

Motion: By Defendant Twinn Palms, Inc. for Determination of Good Faith

Settlement

Tentative Ruling:

To deny without prejudice.

Explanation:

Defendant Twinn Palms, Inc. moves for determination of good faith, pursuant to

Code of Civil Procedure section 877.6, for a settlement entered into between it and

Plaintiffs.

According to the applicable statute, in such circumstances, the moving party

must serve the notice, application, and proposed order by certified mail, return receipt

requested, or by personal service. (Code Civ. Pro., §877.6, subd.(a)(2).) The proof of

service must then be filed with the Court. (Ibid.) According to the proof of service

attached to the Notice of Motion, the papers were served via regular mail, in violation

of section 877.6, subdivision (a)(2). Therefore, the motion is denied without prejudice.

Moreover, even on the merits, the motion must be denied. Section 877.6

provides the good faith standard, but Tech-Bilt, Inc. v. Woodard-Clyde & Assocs. (1985)

38 Cal.3d 488, contains the list of factors for use in determining whether the settlement

was made in good faith. These factors include the following:

(1) a rough approximation of plaintiffs' total recovery and the settlor's

proportionate liability;

(2) the amount paid in settlement;

(3) the allocation of settlement proceeds among plaintiffs;

(4) a recognition that a settlor should pay less in settlement than he would if

he were found liable after a trial;

(5) the financial conditions and insurance policy limits of settling defendants;

(6) no evidence of the existence of collusion, fraud, or tortious conduct

aimed to injure the interests of nonsettling defendants.

(Id. at 499.)

Finally, “practical considerations obviously require that the evaluation be made

on the basis of information available at the time of settlement. A defendant's

28

settlement figure must not be grossly disproportionate to what a reasonable person, at

the time of the settlement, would estimate the settling defendant's liability to be.” (Id.

(internal citations and quotations omitted).) “[I]f there is no substantial evidence to

support a critical assumption as to the nature and extent of a settling defendant’s

liability, then a determination of good faith based upon such assumption is an abuse of

discretion.” (Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864,

871.)

Here, the only substantive evidence in support of the determination of good faith

settlement is a declaration of counsel that:

Notwithstanding Twinn Palms' denial of liability, which it continues to

assert, Twinn Palms has reached a settlement with Plaintiffs under which it

will cause to be paid a total of $75,000 in exchange for a release of all

claims and dismissal with prejudice of it and its related 20 parties. This

settlement is contingent on a good faith settlement determination under

section 877.6 and review and approval by the Court.

(Declaration of Yeh, ¶11.)

There is no evidence whatsoever to allow the Court to determine the nature and

extent of defendant’s liability. There is no evidence or information from which the Court

could conclude that the settlement amount is at all reasonable.

For all these reasons, the motion for determination of good faith settlement is

denied without prejudice.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The



Tentative Ruling



Documents

Tentative Rulings for July 16, 2019 Departments …...2019/07/16 · 1 Tentative Rulings for July 16, 2019 Departments 403, 501, 502, 503 There are no tentative rulings for the following