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1 Jack C. Hsu, Esq. (SBN 224908)
Mary Catherine Garcia, Esq. (SBN 257304)
2 CHRISTENSEN HSU SIPES LLP
224 South Michigan Avenue, Suite 1300
3 Chicago, IL 60604
jack@chs.law/cathy@chs.law
4 Attorneys for Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA,
INC., KAISER FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL
5 APPLE JR.
6 SUPERIOR COURT OF THE STATE OF CALIFORNIA
7 COUNTY OF KERN
8 SERENITY SKY CARMEN RAMOS, an Case No. BCV-22-100462
individual, Assigned to Honorable David R. Zulfa,
9 Division J
Plaintiff,
10
v. DEFENDANTS/CROSS-
11 COMPLAINANTS’ SECURITAS
SECURITAS SECURITY SERVICES USA, SECURITY SERVICES USA, INC.,
CHRISTENSEN HSU SIPES LLP
12 INC., a Delaware Corporation; KAISER KAISER FOUNDATION HEALTH PLAN,
FOUNDATION HEALTH PLAN, INC., a INC., and CHRISTOPHER MICHAEL
13 California Corporation; CHRISTOPHER APPLE JR.’S NOTICE OF MOTION AND
14 MICHAEL APPLE JR., an individual, and MOTION TO CONTEST APPLICATION
DOES 1 through 50, inclusive, FOR DETERMINATION OF GOOD
15 FAITH SETTLEMENT OF CROSS-
Defendants. DEFENDANT/CROSS-COMPLAINANT
16 _____________________________________ DOSON BAO NGUYEN; MEMORANDUM
SECURITAS SECURITY SERVICES USA, OF POINTS AND AUTHORITIES;
17
INC., KAISER FOUNDATION HEALTH DECLARATION OF COUNSEL;
18 PLAN, INC., and CHRISTOPHER ([PROPOSED] ORDER FILED
MICHAEL APPLE JR., CONCURRENTLY HEREWITH)
19 [C.C.P. §877.6(a)(2)]
Cross-Complainants,
20 Date: May 24, 2024
21 v. Time: 8:30 a.m.
Location: Metro Justice Building, 1215
22 DOSON BAO NGUYEN, and ROES 1 Truxton Avenue, Department J, Bakersfield,
through 20, inclusive, California 93301
23
Cross-Defendants. Complaint Filed: February 25, 2022
24 _____________________________________ Trial Date: August 19, 2024
25 AND ALL RELATED CROSS-
COMPLAINTS.
26
27 TO THE HONORABLE COURT, TO ALL PARTIES AND THEIR ATTORNEYS
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 OF RECORD:
2 PLEASE TAKE NOTICE THAT on May 24, 2024, at 8:30 a.m., in Department “J” of the
3 above-entitled Court located at the Metro Justice Building, 1215 Truxton Avenue, Bakersfield,
4 California 93301, Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA,
5 INC., KAISER FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL
6 APPLE JR., (hereinafter referred to as Defendants/Cross-Complainants) will and hereby do move
7 the Court for an order pursuant to California Code of Civil Procedure §877.6(a)(2) finding that the
8 proposed settlement between Plaintiff, SERENITY SKY CARMEN RAMOS, and Cross-
9 Defendant/Cross-Complainant, DOSON BAO NGUYEN, (hereinafter collectively referred to as
10 the “Settling Parties”), is not made in good faith on the following grounds:
11 (A) The Application fails to provide any approximation of the Plaintiff’s total recovery
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12 and/or Nguyen’s proportionate liability and is therefore, unreasonable on its face and not made in
13 good faith;
14 (B) Nguyen is the proximate cause of the automobile accident which occurred on March 4,
15 2020 involving the Plaintiff, which would not have occurred if Nguyen had not been driving while
16 intoxicated, had not lost control of his vehicle and collided with a concrete barrier, and had not left
17 his disabled vehicle in the middle of State Route 178, in the middle of the night, with no lights on
18 or other warnings;
19 (C) Nguyen’s Declaration attached to the Application is insufficient, conclusory, and does
20 not establish Nguyen’s current assets or ability to satisfy a judgment against him, now or in the
21 future; and
22 (D) The effect of the Application and its concomitant extinguishment of Defendants/Cross-
23 Complainants’ Cross-Complaint and entitlement to contribution from Nguyen, shifts the costs of
24 Nguyen’s negligence unjustly, to Defendants/Cross-Complainants.
25 This Motion is based upon the pleadings on file in this matter, this Notice of Motion, the
26 Memorandum of Points and Authorities attached hereto, the accompanying Declaration of Mary
27 Catherine Garcia, and upon such oral and documentary evidence as may be presented prior to or at
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 the hearing of this matter.
2
3 DATED: April 22, 2024 CHRISTENSEN HSU SIPES LLP
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By:
6 Jack C. Hsu, Esq.
Mary Catherine Garcia, Esq.
7 Attorneys for Defendants/Cross-Complainants,
SECURITAS SECURITY SERVICES USA, INC.,
8 KAISER FOUNDATION HEALH PLAN, INC., and
CHRISTOPHER MICHAEL APPLE JR.
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants/Cross-Complainants contest Cross-Defendant, Doson Bao Nguyen’s
4 (hereinafter individually referred to as “Nguyen”) Application for Determination of Good Faith
5 Settlement because (a) the Application fails to provide any approximation of the Plaintiff’s total
6 recovery and/or Nguyen’s proportionate liability and is therefore, unreasonable on its face and not
7 made in good faith; (b) Nguyen is the proximate cause of the automobile accident which occurred
8 on March 4, 2020 involving the Plaintiff, which would not have occurred if Nguyen had not been
9 driving while intoxicated, had not lost control of his vehicle and collided with a concrete barrier,
10 and had not left his disabled vehicle in the middle of State Route 178, in the middle of the night,
11 with no lights on or other warnings; (c) Nguyen’s Declaration attached to the Application is
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12 insufficient, conclusory, and does not establish Nguyen’s current assets or ability to satisfy a
13 judgment against him, now or in the future; (d) and the effect of the Application and its
14 concomitant extinguishment of Defendants/Cross-Complainants’ Cross-Complaint and
15 entitlement to contribution from Nguyen, shifts the costs of Nguyen’s negligence unjustly, to
16 Defendants/Cross-Complainants. The resulting collusive effect of the settlement between Nguyen
17 and Plaintiff, Serenity Sky Carmen Ramos (hereinafter individually referred to as “Ramos”) is to
18 undermine the policy and rationale for statutory good faith settlements all to the benefit of the
19 Settling Parties. This result is particularly unconscionable in light of the fact that Ramos failed to
20 sue Nguyen, the culpable party, and it is now 4 years post-accident and the only reason Nguyen is
21 a party to this case is because Defendants/Cross-Complainants filed a Cross-Complaint against
22 Nguyen for Equitable Indemnity, Contribution and Apportionment and Declaratory Relief. As
23 such, the Court should deny the Application on the basis that it is improper, unjust, unreasonable,
24 and premature and that the Settling Parties have failed to demonstrate that they have entered the
25 settlement in good faith.
26 II. STATEMENT OF FACTS
27 ///
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 On March 4, 2020, at approximately 1:30 a.m., Nguyen drove his vehicle while intoxicated
2 eastbound on State Route 178, in Bakersfield, Kern County. Per Traffic Collision Report Number
3 9420-2020-00795, the speed limit at that location was 65 mph. Per Nguyen’s own admission to the
4 investigating police officer, he was coming home from “Sandrini’s” travelling eastbound in the #1
5 lane at 75 mph. Although Nguyen related to police that he did not know what happened, the police
6 investigation concluded that Nguyen made an unsafe turning movement to the right due to his
7 intoxication, which caused him to hit the concrete wall and come to rest blocking 2 of the 3
8 eastbound lanes of travel on State Route 178. The investigating police officer placed Nguyen under
9 arrest for Driving Under the Influence based on, among other things, his admission that he had
10 consumed alcoholic beverages prior to the accident; signs and symptoms of alcohol intoxication
11 including an odor of alcoholic beverage coming from his breath; slurred speech and red, watery
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12 eyes; and poor performance on the Standardized Field Sobriety Test. (“Declaration of Mary
13 Catherine Garcia (“Garcia Decl.”), at ¶ 2; See Traffic Collision Report Number 9420-2020-00795;
14 A true and accurate copy of the Traffic Collision Report Number 9420-2020-00795 is attached to
15 the Garcia Decl., as Exhibit A).
16 According to the Traffic Collision Report, Exhibit A, Plaintiff’s sister, Mariah Leann Ramos
17 (hereinafter referred to as “Mariah”), who was also travelling eastbound on SR-178, almost hit
18 Nguyen’s vehicle, who she observed blocking the #1 and #2 lanes of traffic. Ramos made a “U”
19 turn, and parked her vehicle in the left shoulder, facing westbound. She and Ramos, who was a
20 passenger in the vehicle, then exited the vehicle to help Nguyen, who would not get out of his
21 vehicle. Ramos was standing in the dirt/gravel median calling 911 while her sister tried to help
22 Nguyen exit his vehicle. Shortly thereafter, Defendant/Cross-Complainant, Christopher Michael
23 Apple, Jr., (hereinafter referred to individually as Apple) recounted to police that he was travelling
24 the speed limit of 65 mph in the #1 lane, when he observed Nguyen’s vehicle completely stopped
25 in his lane of travel. Apple slammed on his brakes but was unable to stop and collided with Nguyen’s
26 vehicle, causing his vehicle to overturn and travel to the left. Apple denies that his vehicle struck
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 the Plaintiff during the collision. (Garcia Decl., at ¶ 3; See Traffic Collision Report Number 9420-
2 2020-00795, Exhibit A).
3 The deposition of Mariah was taken on December 19, 2023. Mariah testified that she was
4 travelling in the middle lane immediately prior to the accident and swerved to the right to avoid
5 Nguyen’s vehicle, which had no headlights on. Mariah also testified that Nguyen smelled of alcohol,
6 really badly and appeared drunk because he was slurring his words and did not know what he was
7 doing. (Garcia Decl., at ¶ 4).
8 The deposition of Ramos was taken on December 15, 2023. Ramos also testified that her
9 sister was travelling in the middle lane immediately before the accident and that she swerved to the
10 right to avoid Nguyen’s vehicle, which had no headlights on. Ramos testified that she and Nguyen
11 were transported from the scene in the same ambulance and that Nguyen appeared really drunk to
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12 her since he was lying next to her and smelled like alcohol. (Garcia Decl., at ¶ 5).
13 It is clear that the party with the most culpability in this accident is Nguyen. The accident
14 would not have occurred had Nguyen not been driving while intoxicated, which caused him to lose
15 control of his vehicle, and obstruct 2 of the 3 lanes of travel on Eastbound State Route 178.
16 III. PROCEDURAL HISTORY AND ALLEGATIONS
17 On February 25, 2022, Plaintiff, Serenity Sky Carmen Ramos, filed suit against
18 Defendants/Cross-Complainants, Securitas Security Services USA, Inc., Kaiser Foundation Health
19 Plan, Inc., and Christopher Michael Apple, Jr. Plaintiff’s Complaint for Damages and Personal
20 Injuries alleges that on or about March 4, 2020, the Defendants/Cross-Complainants’ vehicle
21 collided with “a vehicle owned by a third-party, causing the third-party’s vehicle to collide with
22 Plaintiff’s person, proximately causing those injuries and damages to the Plaintiff as hereinafter
23 described.” (Garcia Decl. at ¶ 6) (emphasis added). Although Plaintiff’s complaint alleges that a
24 “third-party’s” vehicle collided with the Plaintiff and proximately caused Plaintiff’s alleged
25 damages, Plaintiff has never sued Nguyen, the party which she is attempting to reach a settlement
26 agreement with now, in the 4 years post-accident. (Garcia Decl. at ¶ 7) Rather, Defendants/Cross-
27 Complainants filed a Cross-Complaint for Equitable Indemnity, Contribution and Apportionment
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 and Declaratory Relief against Nguyen on March 22, 2023. (Garcia Decl. at ¶ 8) Nguyen, in turn,
2 filed his Cross-Complaint for Apportionment of Fault, Indemnification and Declaratory Relief
3 against Apple on or about April 25, 2023. (Garcia Decl. at ¶ 9)
4 IV. PLAINTIFF’S SETTLEMENT DEMAND AND CLAIMED INJURIES
5 On or about November 17, 2022, Ramos issued a Policy Limit Demand (“Demand Letter”)
6 to Defendants/Cross-Complainants. Similar to her Complaint, Plaintiff’s Demand Letter alleges that
7 she was “struck by a car that had been hit by Mr. Apple.” As a result of the accident, Plaintiff alleges
8 that she sustained lumbar disc protrusions, blood and air in her pleural space with a partially collapsed
9 left lung, a high-grade splenic laceration, fractures of the left second to tenth ribs, and a comminuted
10 displaced fracture of the left shoulder blade. (Garcia Decl., at ¶ 10; A true and accurate copy of the
11 Demand Letter is attached to Garcia Decl., Exhibit B).
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12 Plaintiff’s Demand Letter alleges past medical expenses in the amount of $100,927 and future
13 medical expenses in the amount of $143,500 for surgery for an alleged Morel-Lavallee lesion in
14 Plaintiff’s low back, lumbar epidural steroid injections and physical therapy. Ramos also claims
15 $1.320 M in past and future pain and suffering and loss of enjoyment of life based on Plaintiff’s age
16 (17 years old) at the time of the accident. Plaintiff’s total claimed damages are $1,564,427.29 as of
17 the date of the Demand Letter. (Garcia Decl., at ¶ 11; See Demand Letter, Exhibit B).
18 V. NGUYEN’S APPLICATION FOR GOOD FAITH SETTLEMENT
19 On March 28, 2024, Nguyen served a Notice of Settlement and Application for
20 Determination of Good Faith Settlement pursuant to CCP §877.6, in which Nguyen asserts that
21 Plaintiff has agreed to accept his auto policy limits of $100,000.00 in exchange for a full and final
22 release of all claims. It is interesting to note, however, that Ramos never filed suit against Nguyen,
23 and it is now 4 years post-accident. Further, Nguyen’s Application fails to state or approximate the
24 full amount of damages claimed by Ramos, the nature or extent of her claimed injuries, a rough
25 approximation of Plaintiff’s total recovery or a percentage of Nguyen’s proportionate liability, and
26 the Declaration attached to the Application purporting to represent Nguyen’s financial status is
27 grossly insufficient.
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 VI. THE SETTLEMENT WAS NOT ENTERED IN GOOD FAITH; ITS
2 EFFECT IS TO SHIFT THE COSTS OF NGUYEN’S NEGLIGENCE
3 INEQUITABLY TO THE NON-SETTLING DEFENDANTS WHO WERE
4 NOT NEGLIGENT
5 The effect of a good faith settlement, and procedures for making and opposing motions
6 to determine good faith, are set forth in Code of Civil Procedure §877 and §877.6. A
7 determination by a court that a settlement was made in good faith under §877.6 bars “any other
8 joint tortfeasor…from any further claims against the settling tortfeasor…for equitable
9 comparative contribution, or partial or comparative indemnity, based on comparative
10 negligence or comparative fault.” (Code Civ. Proc., § 877.6(c); see Fullerton Redev. Agency v.
11 Southern Cal. Gas Co. (2010), 183 Cal.App.4th 428, 431 [good faith settlement by settling
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12 tortfeasor under Section 877.6 bars contribution and indemnity claims under Health & Safety
13 Code §25363 by a joint tortfeasor]; Britz, Inc. v. Dow Chem. Co. (1999) 73 Cal.App.4th 177.)
14 The settlement entered by the Settling Parties cannot satisfy the factors necessary for the
15 Court to deem it a good faith settlement. Although there is no precise standard or minimum bar
16 for a “good faith” settlement, any such determination must harmonize the public policy favoring
17 settlements with the competing public policy favoring equitable sharing of costs among joint
18 tortfeasors. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 498-99.)
19 A. There is No Approximation of Proportionate Liability
20 Here, Nguyen’s Application fails to set forth his proportionate liability in causing the
21 accident. The Application states that the $100,000 settlement “fairly represents” Nguyen’s
22 proportionate share of liability but does not give any approximation, rough or otherwise, of
23 what that share is. The Application conveniently fails to mention that Nguyen was driving a
24 motor vehicle while intoxicated, which caused him to strike the concrete barrier and obstruct
25 two lanes of traffic on a major state highway whose speed limit was 65 mph, at 1:30 a.m.
26 Nguyen’s vehicle was not simply disabled in the middle of the roadway. To the contrary, it was
27 disabled solely because Nguyen was intoxicated and had been involved in a 1 car accident,
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 immediately preceding the accident involving Ramos. Nguyen’s payment of his policy limits
2 alone, and in particular in light of the facts of this case, is insufficient as a matter of law, for a
3 finding of good faith. (Id.) Rather, payment of the policy limits is but one factor that the court
4 must balance in determining if a settlement is made in good faith. (Id. at 499). The policies
5 underlying §877.6 mandate that several factors be considered by the court in ruling on an
6 application such as this, including “a rough approximation of plaintiffs’ total recovery and the
7 settlor’s proportionate liability.” In addition, the Court’s evaluation of the settlement requires
8 application of the “reasonable range” stated in Tech-Bilt to determine whether the settlement is
9 “within the reasonable range of the settling tortfeasor’s proportional share of comparative liability
10 for the plaintiff’s injuries.” (Id.) The “reasonable range” test requires evaluation of the information
11 available at the time of settlement, including:
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12 (1) a rough approximation of the plaintiff’s total recovery and the settling defendant’s
13 proportionate liability;
14 (2) the amount paid in settlement;
15 (3) a recognition that a settling defendant should pay less in settlement than if found
16 liable after trial;
17 (4) the allocation of the settlement proceeds among the plaintiffs;
18 (5) the settling defendant’s financial condition and insurance policy limits, if any; and
19 (6) evidence of any collusion, fraud, or tortious conduct between the settling defendant
20 and the plaintiff aimed at making the non-settling parties pay more than their fair share. (Id.)
21 The “reasonable range” test gives the Court substantial discretion in determining whether a
22 settlement has been made in good faith. (Id. at p. 500).
23 Here, the settlement reached by Ramos and Nguyen contravenes the principles and policy
24 underlying Sections 877 and 877.6.
25 In River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 993, the Court
26 recognized the primary goals of the statutes governing good faith settlements “are, first, equitable
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 sharing of costs among the parties at fault, and second, encouragement of settlements.” (River
2 Garden Farms, Inc.. supra, 26 Cal.App.3d at 993.)
3 The settlement entered into by Nguyen and Ramos in no way approximates Nguyen’s
4 proportionate share of liability in causing the accident or Plaintiff’s claimed economic damages. In
5 fact, the Application states “allocation of fault between the parties in this matter is disputed.”
6 (Application, pg. 8). The collusive effect of the settlement is to disproportionately shift the costs of
7 Plaintiff’s economic damages to Defendants/Cross-Complainants, by making them the only parties
8 from whom Plaintiff will claim damages at trial. Plaintiff benefits from this arrangement because
9 Defendants/Cross-Complainants’ policy limits are $2M while Nguyen’s limits are only $100,000,
10 which is why Plaintiff, arguably, did not sue Nguyen in the first place. (Garcia Decl., at ¶ 12).
11 However, the accident would not have happened but for Nguyen’s conduct. If the Court makes a
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12 finding of good faith, the burden will be upon Defendants/Cross-Complainants to enter a settlement
13 against their interests because they will have no recourse against Nguyen. This will result in
14 substantial prejudice to Defendants/Cross-Complainants.
15 B. The Settlement Does Not Approximate Plaintiff’s Damages
16 The “reasonable range” test requires that the Court evaluate, among the factors enumerated,
17 a rough approximation of Plaintiff’s estimated total recovery and Nguyen’s proportionate liability of
18 that overall amount paid through the settlement. (Tech-Bilt, supra, at 499.)
19 As stated in her discovery answers, Plaintiff was born on June 27, 2002 and is claiming back,
20 cervical fracture, fractured ribs, lumbar spine fracture, laceration in the left lung, left shoulder blade
21 fracture, and a stomach (splenic injury). Plaintiff claims that she still experiences back pain and
22 soreness, left rib pain and has a scar on her buttocks. Her past medical expenses are approximately
23 $100,927. (Garcia Decl., at ¶ 13).
24 Plaintiff’s Demand Letter alleges that she sustained lumbar disc protrusions, blood and air in
25 her pleural space with a partially collapsed left lung, a high-grade splenic laceration, fractures of the
26 left second to tenth ribs, and a comminuted displaced fracture of the left shoulder blade. The demand
27 letter alleges future medical expenses in the amount of $143,500 for surgery for an alleged Morel-
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 Lavallee lesion in Ramos’ low back, lumbar epidural steroid injections and physical therapy. Plaintiff
2 also claims $1.320 M in past and future pain and suffering and loss of enjoyment of life based on
3 Plaintiff’s age (17 years old) at the time of the accident. Plaintiff’s total claimed damages as of the
4 date of the Demand Letter are $1,564,427.29. (See Garcia Decl., at ¶ 10; See Demand Letter, Exhibit
5 B). Plaintiff has not presented her expert’s opinion as to her future damages which may be more than
6 alleged in the Demand Letter.
7 Nguyen is paying $100,000 toward Plaintiff’s alleged damages or only 6.4% of the alleged
8 damages arising from the accident which he alone caused. This is not within the realm of reason and
9 is fundamentally unfair.
10 C. Nguyen’s Payment of his Insurance Policy Limits alone is insufficient to
11 establish good faith
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12 Nguyen argues that the settlement is made in good faith because he is tendering his policy
13 limits of $100,000 and he purportedly currently has no additional assets to contribute to a settlement.
14 However, Nguyen’s policy limits are grossly inadequate to cover Ramos’ alleged damages and
15 Nguyen’s policy limits and financial condition is only one factor that the Court balances in
16 determining whether a settlement is made in good faith. In fact, there are other factors that the Court
17 must weigh more heavily than Nguyen’s current financial condition. It would be fundamentally
18 unfair to find that the settlement was made in good faith in light of the other factors heavily weighing
19 against such a finding.
20 Nguyen cites Schmid v. Superior Court (1988) 205 Cal. App. 3d 1244, 253 Cal.Rptr. 137 for
21 the proposition that a settlement is in good faith when a defendant pays his policy limits and has no
22 other assets, however, Nguyen’s reliance on Schmid is misplaced. The Schmid case is easily
23 distinguishable because in that case, the other defendant (the County) did not contest the application.
24 (Id. at 1248) Here, all Defendants/Cross-Complainants contest the Application.
25 D. Nguyen’s Declaration is Insufficient as a Matter of Law
26 Nguyen’s Application also asks the Court to find the settlement is in good faith even though
27 he has presented no clear evidence regarding his assets. Nguyen’s Declaration does not conclusively
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 establish his financial condition and lack of ability to satisfy a judgment in excess of his policy limits
2 now or at any time in the future. The Declaration does not state whether Nguyen is employed, self-
3 employed or otherwise, does not set forth what his current assets are and does not even set forth
4 such basic facts as where he lives and whether he owns or leases his residence. The Declaration
5 merely states that Nguyen does “not own any assets (including cash in whatever form held, equity,
6 stocks, bonds, real estate, notes, etc.) worth the Policy Limits or more.” (Declaration, paragraph 5).
7 However, this statement is vague, ambiguous, conclusory and unclear and fails to state specifically
8 what his assets are so that Defendants/Cross-Complainants can properly evaluate his current
9 financial condition. Nguyen’s statement that he is not “willing and financially able to contribute to
10 the settlement beyond all applicable insurance coverages” is likewise self-serving and conclusory.
11 Further, the Declaration of Nguyen, who is only 28 years old according to his Declaration, fails to
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12 state that he does not stand to acquire assets in the future, by way of inheritance, or otherwise.
13 It would be blatantly unfair for the Court to find that the settlement is made in good faith
14 based on Nguyen’s insufficient Declaration and without allowing Defendants/Cross-Complainants
15 to conduct discovery on this issue.
16 E. There is No Reduction in Litigation Through this Settlement
17 The settlement entered by the Settling Parties does nothing to reduce the litigation among the
18 parties because Ramos continues to prosecute her Complaint against Defendants/Cross-
19 Complainants. The sole object of Nguyen’s Application is to extinguish any obligation to pay
20 contribution to Defendants/Cross-Complainants. This is fundamentally unfair when Plaintiff herself
21 never sued Nguyen, within 4 years post-accident, but now seeks to aid Nguyen in extinguishing his
22 obligations to pay contribution to Defendants/Cross-Complainants. Therefore, the sole effect of the
23 Court’s granting the Application would be to enable Nguyen to avoid the consequences of his actions,
24 prejudicing the Defendants/Cross-Complainants, while doing nothing to minimize litigation among
25 the parties.
26 VII. CONCLUSION
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 For the reasons stated above, Defendants/Cross-Complainants respectfully request that the
2 Court deny Nguyen’s Application for Determination of Good Faith Settlement.
3
DATED: April 22, 2024 CHRISTENSEN HSU SIPES LLP
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By:
6 Jack C. Hsu, Esq.
Mary Catherine Garcia, Esq.
7 Attorneys for Defendants and Cross-Complainants,
SECURITAS SECURITY SERVICES USA, INC.,
8 KAISER FOUNDATION HEALH PLAN, INC., and
CHRISTOPHER MICHAEL APPLE JR.
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DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 DECLARATION OF MARY CATHERINE GARCIA, ESQ. IN SUPPORT
2 OF MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD
3 FAITH SETTLEMENT
4 I, Mary Catherine Garcia, declare as follows:
5 1. I am an attorney duly licensed to practice law in all courts in the State of California.
6 I am an attorney with the law firm of Christensen Hsu Sipes LLP, counsel of record for
7 Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA, INC., KAISER
8 FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL APPLE JR., I know
9 of the following through my personal knowledge and if called as a witness to testify in this Action,
10 would and could competently testify thereto.
11 2. I have reviewed the Traffic Collision Report Number 9420-2020-00795, which
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12 reflects that, on March 4, 2020, at approximately 1:30 a.m., Nguyen drove his vehicle while
13 intoxicated eastbound on State Route 178, in Bakersfield, Kern County. Per the Traffic Collision
14 Report Number 9420-2020-00795, the speed limit at that location was 65 mph. Per Nguyen’s own
15 admission to the investigating police officer, he stated he was coming home from “Sandrini’s”
16 travelling eastbound in the #1 lane at 75 mph. Although Nguyen related to police that he did not
17 know what happened, the police investigation concluded that Nguyen made an unsafe turning
18 movement to the right due to his intoxication, which caused him to hit the concrete wall and come
19 to rest blocking 2 of the 3 eastbound lanes of travel on State Route 178. The investigating police
20 officer placed Nguyen under arrest for Driving Under the Influence based on, among other things,
21 his admission that he had consumed alcoholic beverages prior to the accident; signs and symptoms
22 of alcohol intoxication including an odor of alcoholic beverage coming from his breath; slurred
23 speech and red, watery eyes; and poor performance on the Standardized Field Sobriety Test. (See
24 Traffic Collision Report Number 9420-2020-00795; A true and accurate copy of the Traffic
25 Collision Report Number 9420-2020-00795 is attached to this Declaration, as Exhibit A).
26 3. According to the Traffic Collision Report, Exhibit A, Plaintiff’s sister, Mariah Leann
27 Ramos, who was also travelling eastbound on SR-178, almost hit Nguyen’s vehicle, who she
28 -14-
DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION
FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL
1 observed blocking the #1 and #2 lanes of traffic. Ramos made a “U” turn, and parked her vehicle in
2 the left shoulder, facing westbound. She and Ramos, who was a passenger in the vehicle, then exited
3 the vehicle to help Nguyen, who would not get out of his vehicle. Ramos was standing in the
4 dirt/gravel median calling 911 while her sister tried to help Nguyen exit his vehicle. Shortly
5 thereafter, Defendant/Cross-Complainant, Christopher Michael Apple, Jr., (hereinafter referred to
6 individually as “Apple”) recounted to police that he was travelling the speed limit of 65 mph in the
7 #1 lane, when he observed Nguyen’s vehicle completely stopped in his lane of travel. Apple
8 slammed on his brakes but was unable to stop and collided with Nguyen’s vehicle, causing his
9 vehicle to overturn and travel to the left. Apple denies that his vehicle struck the Plaintiff during the
10 collision. (See Traffic Collision Report Number 9420-2020-00795, Exhibit A).
11 4. The deposition of Mariah was taken on December 19, 2023. Mariah testified that she
CHRISTENSEN HSU SIPES LLP
12 was travelling in the middle lane immediately prior to the accident and swerved to the right to avoid
13 Nguyen’s vehicle, which had no headlights on. Mariah also testified that Nguyen smelled of alcohol,
14 really badly and appeared drunk because he was slurring his words and did not know what he was
15 doing.
16 5. The deposition of Ramos was taken on December 15, 2023. Ramos also testified that
17 her sister was travelling in the middle lane immediately before the accident and that she swerved to
18 the right to avoid Nguyen’s vehicle, which had no headlights on. Ramos testified that she and
19 Nguyen were transported from the scene in the same ambulance and that Nguyen appeared really
20 drunk to her since he was lying next to her and smelled like alcohol.
21 6. On February 25, 2022, Plaintiff, Serenity Sky Carmen Ramos, filed suit against
22 Defendants/Cross-Complainants, Securitas Security Services USA, Inc., Kaiser Foundation Health
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1 Jack C. Hsu, Esq. (SBN 224908) Mary Catherine Garcia, Esq. (SBN 257304) 2 CHRISTENSEN HSU SIPES LLP 224 South Michigan Avenue, Suite 1300 3 Chicago, IL 60604 jack@chs.law/cathy@chs.law 4 Attorneys for Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA, INC., KAISER FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL 5 APPLE JR. 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF KERN 8 SERENITY SKY CARMEN RAMOS, an Case No. BCV-22-100462 individual, Assigned to Honorable David R. Zulfa, 9 Division J Plaintiff, 10 v. DEFENDANTS/CROSS- 11 COMPLAINANTS’ SECURITAS SECURITAS SECURITY SERVICES USA, SECURITY SERVICES USA, INC., CHRISTENSEN HSU SIPES LLP 12 INC., a Delaware Corporation; KAISER KAISER FOUNDATION HEALTH PLAN, FOUNDATION HEALTH PLAN, INC., a INC., and CHRISTOPHER MICHAEL 13 California Corporation; CHRISTOPHER APPLE JR.’S NOTICE OF MOTION AND 14 MICHAEL APPLE JR., an individual, and MOTION TO CONTEST APPLICATION DOES 1 through 50, inclusive, FOR DETERMINATION OF GOOD 15 FAITH SETTLEMENT OF CROSS- Defendants. DEFENDANT/CROSS-COMPLAINANT 16 _____________________________________ DOSON BAO NGUYEN; MEMORANDUM SECURITAS SECURITY SERVICES USA, OF POINTS AND AUTHORITIES; 17 INC., KAISER FOUNDATION HEALTH DECLARATION OF COUNSEL; 18 PLAN, INC., and CHRISTOPHER ([PROPOSED] ORDER FILED MICHAEL APPLE JR., CONCURRENTLY HEREWITH) 19 [C.C.P. §877.6(a)(2)] Cross-Complainants, 20 Date: May 24, 2024 21 v. Time: 8:30 a.m. Location: Metro Justice Building, 1215 22 DOSON BAO NGUYEN, and ROES 1 Truxton Avenue, Department J, Bakersfield, through 20, inclusive, California 93301 23 Cross-Defendants. Complaint Filed: February 25, 2022 24 _____________________________________ Trial Date: August 19, 2024 25 AND ALL RELATED CROSS- COMPLAINTS. 26 27 TO THE HONORABLE COURT, TO ALL PARTIES AND THEIR ATTORNEYS 28 -1- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 OF RECORD: 2 PLEASE TAKE NOTICE THAT on May 24, 2024, at 8:30 a.m., in Department “J” of the 3 above-entitled Court located at the Metro Justice Building, 1215 Truxton Avenue, Bakersfield, 4 California 93301, Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA, 5 INC., KAISER FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL 6 APPLE JR., (hereinafter referred to as Defendants/Cross-Complainants) will and hereby do move 7 the Court for an order pursuant to California Code of Civil Procedure §877.6(a)(2) finding that the 8 proposed settlement between Plaintiff, SERENITY SKY CARMEN RAMOS, and Cross- 9 Defendant/Cross-Complainant, DOSON BAO NGUYEN, (hereinafter collectively referred to as 10 the “Settling Parties”), is not made in good faith on the following grounds: 11 (A) The Application fails to provide any approximation of the Plaintiff’s total recovery CHRISTENSEN HSU SIPES LLP 12 and/or Nguyen’s proportionate liability and is therefore, unreasonable on its face and not made in 13 good faith; 14 (B) Nguyen is the proximate cause of the automobile accident which occurred on March 4, 15 2020 involving the Plaintiff, which would not have occurred if Nguyen had not been driving while 16 intoxicated, had not lost control of his vehicle and collided with a concrete barrier, and had not left 17 his disabled vehicle in the middle of State Route 178, in the middle of the night, with no lights on 18 or other warnings; 19 (C) Nguyen’s Declaration attached to the Application is insufficient, conclusory, and does 20 not establish Nguyen’s current assets or ability to satisfy a judgment against him, now or in the 21 future; and 22 (D) The effect of the Application and its concomitant extinguishment of Defendants/Cross- 23 Complainants’ Cross-Complaint and entitlement to contribution from Nguyen, shifts the costs of 24 Nguyen’s negligence unjustly, to Defendants/Cross-Complainants. 25 This Motion is based upon the pleadings on file in this matter, this Notice of Motion, the 26 Memorandum of Points and Authorities attached hereto, the accompanying Declaration of Mary 27 Catherine Garcia, and upon such oral and documentary evidence as may be presented prior to or at 28 -2- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 the hearing of this matter. 2 3 DATED: April 22, 2024 CHRISTENSEN HSU SIPES LLP 4 5 By: 6 Jack C. Hsu, Esq. Mary Catherine Garcia, Esq. 7 Attorneys for Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA, INC., 8 KAISER FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL APPLE JR. 9 10 11 CHRISTENSEN HSU SIPES LLP 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants/Cross-Complainants contest Cross-Defendant, Doson Bao Nguyen’s 4 (hereinafter individually referred to as “Nguyen”) Application for Determination of Good Faith 5 Settlement because (a) the Application fails to provide any approximation of the Plaintiff’s total 6 recovery and/or Nguyen’s proportionate liability and is therefore, unreasonable on its face and not 7 made in good faith; (b) Nguyen is the proximate cause of the automobile accident which occurred 8 on March 4, 2020 involving the Plaintiff, which would not have occurred if Nguyen had not been 9 driving while intoxicated, had not lost control of his vehicle and collided with a concrete barrier, 10 and had not left his disabled vehicle in the middle of State Route 178, in the middle of the night, 11 with no lights on or other warnings; (c) Nguyen’s Declaration attached to the Application is CHRISTENSEN HSU SIPES LLP 12 insufficient, conclusory, and does not establish Nguyen’s current assets or ability to satisfy a 13 judgment against him, now or in the future; (d) and the effect of the Application and its 14 concomitant extinguishment of Defendants/Cross-Complainants’ Cross-Complaint and 15 entitlement to contribution from Nguyen, shifts the costs of Nguyen’s negligence unjustly, to 16 Defendants/Cross-Complainants. The resulting collusive effect of the settlement between Nguyen 17 and Plaintiff, Serenity Sky Carmen Ramos (hereinafter individually referred to as “Ramos”) is to 18 undermine the policy and rationale for statutory good faith settlements all to the benefit of the 19 Settling Parties. This result is particularly unconscionable in light of the fact that Ramos failed to 20 sue Nguyen, the culpable party, and it is now 4 years post-accident and the only reason Nguyen is 21 a party to this case is because Defendants/Cross-Complainants filed a Cross-Complaint against 22 Nguyen for Equitable Indemnity, Contribution and Apportionment and Declaratory Relief. As 23 such, the Court should deny the Application on the basis that it is improper, unjust, unreasonable, 24 and premature and that the Settling Parties have failed to demonstrate that they have entered the 25 settlement in good faith. 26 II. STATEMENT OF FACTS 27 /// 28 -4- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 On March 4, 2020, at approximately 1:30 a.m., Nguyen drove his vehicle while intoxicated 2 eastbound on State Route 178, in Bakersfield, Kern County. Per Traffic Collision Report Number 3 9420-2020-00795, the speed limit at that location was 65 mph. Per Nguyen’s own admission to the 4 investigating police officer, he was coming home from “Sandrini’s” travelling eastbound in the #1 5 lane at 75 mph. Although Nguyen related to police that he did not know what happened, the police 6 investigation concluded that Nguyen made an unsafe turning movement to the right due to his 7 intoxication, which caused him to hit the concrete wall and come to rest blocking 2 of the 3 8 eastbound lanes of travel on State Route 178. The investigating police officer placed Nguyen under 9 arrest for Driving Under the Influence based on, among other things, his admission that he had 10 consumed alcoholic beverages prior to the accident; signs and symptoms of alcohol intoxication 11 including an odor of alcoholic beverage coming from his breath; slurred speech and red, watery CHRISTENSEN HSU SIPES LLP 12 eyes; and poor performance on the Standardized Field Sobriety Test. (“Declaration of Mary 13 Catherine Garcia (“Garcia Decl.”), at ¶ 2; See Traffic Collision Report Number 9420-2020-00795; 14 A true and accurate copy of the Traffic Collision Report Number 9420-2020-00795 is attached to 15 the Garcia Decl., as Exhibit A). 16 According to the Traffic Collision Report, Exhibit A, Plaintiff’s sister, Mariah Leann Ramos 17 (hereinafter referred to as “Mariah”), who was also travelling eastbound on SR-178, almost hit 18 Nguyen’s vehicle, who she observed blocking the #1 and #2 lanes of traffic. Ramos made a “U” 19 turn, and parked her vehicle in the left shoulder, facing westbound. She and Ramos, who was a 20 passenger in the vehicle, then exited the vehicle to help Nguyen, who would not get out of his 21 vehicle. Ramos was standing in the dirt/gravel median calling 911 while her sister tried to help 22 Nguyen exit his vehicle. Shortly thereafter, Defendant/Cross-Complainant, Christopher Michael 23 Apple, Jr., (hereinafter referred to individually as Apple) recounted to police that he was travelling 24 the speed limit of 65 mph in the #1 lane, when he observed Nguyen’s vehicle completely stopped 25 in his lane of travel. Apple slammed on his brakes but was unable to stop and collided with Nguyen’s 26 vehicle, causing his vehicle to overturn and travel to the left. Apple denies that his vehicle struck 27 28 -5- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 the Plaintiff during the collision. (Garcia Decl., at ¶ 3; See Traffic Collision Report Number 9420- 2 2020-00795, Exhibit A). 3 The deposition of Mariah was taken on December 19, 2023. Mariah testified that she was 4 travelling in the middle lane immediately prior to the accident and swerved to the right to avoid 5 Nguyen’s vehicle, which had no headlights on. Mariah also testified that Nguyen smelled of alcohol, 6 really badly and appeared drunk because he was slurring his words and did not know what he was 7 doing. (Garcia Decl., at ¶ 4). 8 The deposition of Ramos was taken on December 15, 2023. Ramos also testified that her 9 sister was travelling in the middle lane immediately before the accident and that she swerved to the 10 right to avoid Nguyen’s vehicle, which had no headlights on. Ramos testified that she and Nguyen 11 were transported from the scene in the same ambulance and that Nguyen appeared really drunk to CHRISTENSEN HSU SIPES LLP 12 her since he was lying next to her and smelled like alcohol. (Garcia Decl., at ¶ 5). 13 It is clear that the party with the most culpability in this accident is Nguyen. The accident 14 would not have occurred had Nguyen not been driving while intoxicated, which caused him to lose 15 control of his vehicle, and obstruct 2 of the 3 lanes of travel on Eastbound State Route 178. 16 III. PROCEDURAL HISTORY AND ALLEGATIONS 17 On February 25, 2022, Plaintiff, Serenity Sky Carmen Ramos, filed suit against 18 Defendants/Cross-Complainants, Securitas Security Services USA, Inc., Kaiser Foundation Health 19 Plan, Inc., and Christopher Michael Apple, Jr. Plaintiff’s Complaint for Damages and Personal 20 Injuries alleges that on or about March 4, 2020, the Defendants/Cross-Complainants’ vehicle 21 collided with “a vehicle owned by a third-party, causing the third-party’s vehicle to collide with 22 Plaintiff’s person, proximately causing those injuries and damages to the Plaintiff as hereinafter 23 described.” (Garcia Decl. at ¶ 6) (emphasis added). Although Plaintiff’s complaint alleges that a 24 “third-party’s” vehicle collided with the Plaintiff and proximately caused Plaintiff’s alleged 25 damages, Plaintiff has never sued Nguyen, the party which she is attempting to reach a settlement 26 agreement with now, in the 4 years post-accident. (Garcia Decl. at ¶ 7) Rather, Defendants/Cross- 27 Complainants filed a Cross-Complaint for Equitable Indemnity, Contribution and Apportionment 28 -6- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 and Declaratory Relief against Nguyen on March 22, 2023. (Garcia Decl. at ¶ 8) Nguyen, in turn, 2 filed his Cross-Complaint for Apportionment of Fault, Indemnification and Declaratory Relief 3 against Apple on or about April 25, 2023. (Garcia Decl. at ¶ 9) 4 IV. PLAINTIFF’S SETTLEMENT DEMAND AND CLAIMED INJURIES 5 On or about November 17, 2022, Ramos issued a Policy Limit Demand (“Demand Letter”) 6 to Defendants/Cross-Complainants. Similar to her Complaint, Plaintiff’s Demand Letter alleges that 7 she was “struck by a car that had been hit by Mr. Apple.” As a result of the accident, Plaintiff alleges 8 that she sustained lumbar disc protrusions, blood and air in her pleural space with a partially collapsed 9 left lung, a high-grade splenic laceration, fractures of the left second to tenth ribs, and a comminuted 10 displaced fracture of the left shoulder blade. (Garcia Decl., at ¶ 10; A true and accurate copy of the 11 Demand Letter is attached to Garcia Decl., Exhibit B). CHRISTENSEN HSU SIPES LLP 12 Plaintiff’s Demand Letter alleges past medical expenses in the amount of $100,927 and future 13 medical expenses in the amount of $143,500 for surgery for an alleged Morel-Lavallee lesion in 14 Plaintiff’s low back, lumbar epidural steroid injections and physical therapy. Ramos also claims 15 $1.320 M in past and future pain and suffering and loss of enjoyment of life based on Plaintiff’s age 16 (17 years old) at the time of the accident. Plaintiff’s total claimed damages are $1,564,427.29 as of 17 the date of the Demand Letter. (Garcia Decl., at ¶ 11; See Demand Letter, Exhibit B). 18 V. NGUYEN’S APPLICATION FOR GOOD FAITH SETTLEMENT 19 On March 28, 2024, Nguyen served a Notice of Settlement and Application for 20 Determination of Good Faith Settlement pursuant to CCP §877.6, in which Nguyen asserts that 21 Plaintiff has agreed to accept his auto policy limits of $100,000.00 in exchange for a full and final 22 release of all claims. It is interesting to note, however, that Ramos never filed suit against Nguyen, 23 and it is now 4 years post-accident. Further, Nguyen’s Application fails to state or approximate the 24 full amount of damages claimed by Ramos, the nature or extent of her claimed injuries, a rough 25 approximation of Plaintiff’s total recovery or a percentage of Nguyen’s proportionate liability, and 26 the Declaration attached to the Application purporting to represent Nguyen’s financial status is 27 grossly insufficient. 28 -7- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 VI. THE SETTLEMENT WAS NOT ENTERED IN GOOD FAITH; ITS 2 EFFECT IS TO SHIFT THE COSTS OF NGUYEN’S NEGLIGENCE 3 INEQUITABLY TO THE NON-SETTLING DEFENDANTS WHO WERE 4 NOT NEGLIGENT 5 The effect of a good faith settlement, and procedures for making and opposing motions 6 to determine good faith, are set forth in Code of Civil Procedure §877 and §877.6. A 7 determination by a court that a settlement was made in good faith under §877.6 bars “any other 8 joint tortfeasor…from any further claims against the settling tortfeasor…for equitable 9 comparative contribution, or partial or comparative indemnity, based on comparative 10 negligence or comparative fault.” (Code Civ. Proc., § 877.6(c); see Fullerton Redev. Agency v. 11 Southern Cal. Gas Co. (2010), 183 Cal.App.4th 428, 431 [good faith settlement by settling CHRISTENSEN HSU SIPES LLP 12 tortfeasor under Section 877.6 bars contribution and indemnity claims under Health & Safety 13 Code §25363 by a joint tortfeasor]; Britz, Inc. v. Dow Chem. Co. (1999) 73 Cal.App.4th 177.) 14 The settlement entered by the Settling Parties cannot satisfy the factors necessary for the 15 Court to deem it a good faith settlement. Although there is no precise standard or minimum bar 16 for a “good faith” settlement, any such determination must harmonize the public policy favoring 17 settlements with the competing public policy favoring equitable sharing of costs among joint 18 tortfeasors. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 498-99.) 19 A. There is No Approximation of Proportionate Liability 20 Here, Nguyen’s Application fails to set forth his proportionate liability in causing the 21 accident. The Application states that the $100,000 settlement “fairly represents” Nguyen’s 22 proportionate share of liability but does not give any approximation, rough or otherwise, of 23 what that share is. The Application conveniently fails to mention that Nguyen was driving a 24 motor vehicle while intoxicated, which caused him to strike the concrete barrier and obstruct 25 two lanes of traffic on a major state highway whose speed limit was 65 mph, at 1:30 a.m. 26 Nguyen’s vehicle was not simply disabled in the middle of the roadway. To the contrary, it was 27 disabled solely because Nguyen was intoxicated and had been involved in a 1 car accident, 28 -8- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 immediately preceding the accident involving Ramos. Nguyen’s payment of his policy limits 2 alone, and in particular in light of the facts of this case, is insufficient as a matter of law, for a 3 finding of good faith. (Id.) Rather, payment of the policy limits is but one factor that the court 4 must balance in determining if a settlement is made in good faith. (Id. at 499). The policies 5 underlying §877.6 mandate that several factors be considered by the court in ruling on an 6 application such as this, including “a rough approximation of plaintiffs’ total recovery and the 7 settlor’s proportionate liability.” In addition, the Court’s evaluation of the settlement requires 8 application of the “reasonable range” stated in Tech-Bilt to determine whether the settlement is 9 “within the reasonable range of the settling tortfeasor’s proportional share of comparative liability 10 for the plaintiff’s injuries.” (Id.) The “reasonable range” test requires evaluation of the information 11 available at the time of settlement, including: CHRISTENSEN HSU SIPES LLP 12 (1) a rough approximation of the plaintiff’s total recovery and the settling defendant’s 13 proportionate liability; 14 (2) the amount paid in settlement; 15 (3) a recognition that a settling defendant should pay less in settlement than if found 16 liable after trial; 17 (4) the allocation of the settlement proceeds among the plaintiffs; 18 (5) the settling defendant’s financial condition and insurance policy limits, if any; and 19 (6) evidence of any collusion, fraud, or tortious conduct between the settling defendant 20 and the plaintiff aimed at making the non-settling parties pay more than their fair share. (Id.) 21 The “reasonable range” test gives the Court substantial discretion in determining whether a 22 settlement has been made in good faith. (Id. at p. 500). 23 Here, the settlement reached by Ramos and Nguyen contravenes the principles and policy 24 underlying Sections 877 and 877.6. 25 In River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 993, the Court 26 recognized the primary goals of the statutes governing good faith settlements “are, first, equitable 27 28 -9- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 sharing of costs among the parties at fault, and second, encouragement of settlements.” (River 2 Garden Farms, Inc.. supra, 26 Cal.App.3d at 993.) 3 The settlement entered into by Nguyen and Ramos in no way approximates Nguyen’s 4 proportionate share of liability in causing the accident or Plaintiff’s claimed economic damages. In 5 fact, the Application states “allocation of fault between the parties in this matter is disputed.” 6 (Application, pg. 8). The collusive effect of the settlement is to disproportionately shift the costs of 7 Plaintiff’s economic damages to Defendants/Cross-Complainants, by making them the only parties 8 from whom Plaintiff will claim damages at trial. Plaintiff benefits from this arrangement because 9 Defendants/Cross-Complainants’ policy limits are $2M while Nguyen’s limits are only $100,000, 10 which is why Plaintiff, arguably, did not sue Nguyen in the first place. (Garcia Decl., at ¶ 12). 11 However, the accident would not have happened but for Nguyen’s conduct. If the Court makes a CHRISTENSEN HSU SIPES LLP 12 finding of good faith, the burden will be upon Defendants/Cross-Complainants to enter a settlement 13 against their interests because they will have no recourse against Nguyen. This will result in 14 substantial prejudice to Defendants/Cross-Complainants. 15 B. The Settlement Does Not Approximate Plaintiff’s Damages 16 The “reasonable range” test requires that the Court evaluate, among the factors enumerated, 17 a rough approximation of Plaintiff’s estimated total recovery and Nguyen’s proportionate liability of 18 that overall amount paid through the settlement. (Tech-Bilt, supra, at 499.) 19 As stated in her discovery answers, Plaintiff was born on June 27, 2002 and is claiming back, 20 cervical fracture, fractured ribs, lumbar spine fracture, laceration in the left lung, left shoulder blade 21 fracture, and a stomach (splenic injury). Plaintiff claims that she still experiences back pain and 22 soreness, left rib pain and has a scar on her buttocks. Her past medical expenses are approximately 23 $100,927. (Garcia Decl., at ¶ 13). 24 Plaintiff’s Demand Letter alleges that she sustained lumbar disc protrusions, blood and air in 25 her pleural space with a partially collapsed left lung, a high-grade splenic laceration, fractures of the 26 left second to tenth ribs, and a comminuted displaced fracture of the left shoulder blade. The demand 27 letter alleges future medical expenses in the amount of $143,500 for surgery for an alleged Morel- 28 -10- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 Lavallee lesion in Ramos’ low back, lumbar epidural steroid injections and physical therapy. Plaintiff 2 also claims $1.320 M in past and future pain and suffering and loss of enjoyment of life based on 3 Plaintiff’s age (17 years old) at the time of the accident. Plaintiff’s total claimed damages as of the 4 date of the Demand Letter are $1,564,427.29. (See Garcia Decl., at ¶ 10; See Demand Letter, Exhibit 5 B). Plaintiff has not presented her expert’s opinion as to her future damages which may be more than 6 alleged in the Demand Letter. 7 Nguyen is paying $100,000 toward Plaintiff’s alleged damages or only 6.4% of the alleged 8 damages arising from the accident which he alone caused. This is not within the realm of reason and 9 is fundamentally unfair. 10 C. Nguyen’s Payment of his Insurance Policy Limits alone is insufficient to 11 establish good faith CHRISTENSEN HSU SIPES LLP 12 Nguyen argues that the settlement is made in good faith because he is tendering his policy 13 limits of $100,000 and he purportedly currently has no additional assets to contribute to a settlement. 14 However, Nguyen’s policy limits are grossly inadequate to cover Ramos’ alleged damages and 15 Nguyen’s policy limits and financial condition is only one factor that the Court balances in 16 determining whether a settlement is made in good faith. In fact, there are other factors that the Court 17 must weigh more heavily than Nguyen’s current financial condition. It would be fundamentally 18 unfair to find that the settlement was made in good faith in light of the other factors heavily weighing 19 against such a finding. 20 Nguyen cites Schmid v. Superior Court (1988) 205 Cal. App. 3d 1244, 253 Cal.Rptr. 137 for 21 the proposition that a settlement is in good faith when a defendant pays his policy limits and has no 22 other assets, however, Nguyen’s reliance on Schmid is misplaced. The Schmid case is easily 23 distinguishable because in that case, the other defendant (the County) did not contest the application. 24 (Id. at 1248) Here, all Defendants/Cross-Complainants contest the Application. 25 D. Nguyen’s Declaration is Insufficient as a Matter of Law 26 Nguyen’s Application also asks the Court to find the settlement is in good faith even though 27 he has presented no clear evidence regarding his assets. Nguyen’s Declaration does not conclusively 28 -11- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 establish his financial condition and lack of ability to satisfy a judgment in excess of his policy limits 2 now or at any time in the future. The Declaration does not state whether Nguyen is employed, self- 3 employed or otherwise, does not set forth what his current assets are and does not even set forth 4 such basic facts as where he lives and whether he owns or leases his residence. The Declaration 5 merely states that Nguyen does “not own any assets (including cash in whatever form held, equity, 6 stocks, bonds, real estate, notes, etc.) worth the Policy Limits or more.” (Declaration, paragraph 5). 7 However, this statement is vague, ambiguous, conclusory and unclear and fails to state specifically 8 what his assets are so that Defendants/Cross-Complainants can properly evaluate his current 9 financial condition. Nguyen’s statement that he is not “willing and financially able to contribute to 10 the settlement beyond all applicable insurance coverages” is likewise self-serving and conclusory. 11 Further, the Declaration of Nguyen, who is only 28 years old according to his Declaration, fails to CHRISTENSEN HSU SIPES LLP 12 state that he does not stand to acquire assets in the future, by way of inheritance, or otherwise. 13 It would be blatantly unfair for the Court to find that the settlement is made in good faith 14 based on Nguyen’s insufficient Declaration and without allowing Defendants/Cross-Complainants 15 to conduct discovery on this issue. 16 E. There is No Reduction in Litigation Through this Settlement 17 The settlement entered by the Settling Parties does nothing to reduce the litigation among the 18 parties because Ramos continues to prosecute her Complaint against Defendants/Cross- 19 Complainants. The sole object of Nguyen’s Application is to extinguish any obligation to pay 20 contribution to Defendants/Cross-Complainants. This is fundamentally unfair when Plaintiff herself 21 never sued Nguyen, within 4 years post-accident, but now seeks to aid Nguyen in extinguishing his 22 obligations to pay contribution to Defendants/Cross-Complainants. Therefore, the sole effect of the 23 Court’s granting the Application would be to enable Nguyen to avoid the consequences of his actions, 24 prejudicing the Defendants/Cross-Complainants, while doing nothing to minimize litigation among 25 the parties. 26 VII. CONCLUSION 27 28 -12- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 For the reasons stated above, Defendants/Cross-Complainants respectfully request that the 2 Court deny Nguyen’s Application for Determination of Good Faith Settlement. 3 DATED: April 22, 2024 CHRISTENSEN HSU SIPES LLP 4 5 By: 6 Jack C. Hsu, Esq. Mary Catherine Garcia, Esq. 7 Attorneys for Defendants and Cross-Complainants, SECURITAS SECURITY SERVICES USA, INC., 8 KAISER FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL APPLE JR. 9 10 11 CHRISTENSEN HSU SIPES LLP 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -13- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 DECLARATION OF MARY CATHERINE GARCIA, ESQ. IN SUPPORT 2 OF MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD 3 FAITH SETTLEMENT 4 I, Mary Catherine Garcia, declare as follows: 5 1. I am an attorney duly licensed to practice law in all courts in the State of California. 6 I am an attorney with the law firm of Christensen Hsu Sipes LLP, counsel of record for 7 Defendants/Cross-Complainants, SECURITAS SECURITY SERVICES USA, INC., KAISER 8 FOUNDATION HEALH PLAN, INC., and CHRISTOPHER MICHAEL APPLE JR., I know 9 of the following through my personal knowledge and if called as a witness to testify in this Action, 10 would and could competently testify thereto. 11 2. I have reviewed the Traffic Collision Report Number 9420-2020-00795, which CHRISTENSEN HSU SIPES LLP 12 reflects that, on March 4, 2020, at approximately 1:30 a.m., Nguyen drove his vehicle while 13 intoxicated eastbound on State Route 178, in Bakersfield, Kern County. Per the Traffic Collision 14 Report Number 9420-2020-00795, the speed limit at that location was 65 mph. Per Nguyen’s own 15 admission to the investigating police officer, he stated he was coming home from “Sandrini’s” 16 travelling eastbound in the #1 lane at 75 mph. Although Nguyen related to police that he did not 17 know what happened, the police investigation concluded that Nguyen made an unsafe turning 18 movement to the right due to his intoxication, which caused him to hit the concrete wall and come 19 to rest blocking 2 of the 3 eastbound lanes of travel on State Route 178. The investigating police 20 officer placed Nguyen under arrest for Driving Under the Influence based on, among other things, 21 his admission that he had consumed alcoholic beverages prior to the accident; signs and symptoms 22 of alcohol intoxication including an odor of alcoholic beverage coming from his breath; slurred 23 speech and red, watery eyes; and poor performance on the Standardized Field Sobriety Test. (See 24 Traffic Collision Report Number 9420-2020-00795; A true and accurate copy of the Traffic 25 Collision Report Number 9420-2020-00795 is attached to this Declaration, as Exhibit A). 26 3. According to the Traffic Collision Report, Exhibit A, Plaintiff’s sister, Mariah Leann 27 Ramos, who was also travelling eastbound on SR-178, almost hit Nguyen’s vehicle, who she 28 -14- DEFENDANTS/CROSS-COMPLAINANTS’ MOTION TO CONTEST APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT; DECLARATION OF COUNSEL 1 observed blocking the #1 and #2 lanes of traffic. Ramos made a “U” turn, and parked her vehicle in 2 the left shoulder, facing westbound. She and Ramos, who was a passenger in the vehicle, then exited 3 the vehicle to help Nguyen, who would not get out of his vehicle. Ramos was standing in the 4 dirt/gravel median calling 911 while her sister tried to help Nguyen exit his vehicle. Shortly 5 thereafter, Defendant/Cross-Complainant, Christopher Michael Apple, Jr., (hereinafter referred to 6 individually as “Apple”) recounted to police that he was travelling the speed limit of 65 mph in the 7 #1 lane, when he observed Nguyen’s vehicle completely stopped in his lane of travel. Apple 8 slammed on his brakes but was unable to stop and collided with Nguyen’s vehicle, causing his 9 vehicle to overturn and travel to the left. Apple denies that his vehicle struck the Plaintiff during the 10 collision. (See Traffic Collision Report Number 9420-2020-00795, Exhibit A). 11 4. The deposition of Mariah was taken on December 19, 2023. Mariah testified that she CHRISTENSEN HSU SIPES LLP 12 was travelling in the middle lane immediately prior to the accident and swerved to the right to avoid 13 Nguyen’s vehicle, which had no headlights on. Mariah also testified that Nguyen smelled of alcohol, 14 really badly and appeared drunk because he was slurring his words and did not know what he was 15 doing. 16 5. The deposition of Ramos was taken on December 15, 2023. Ramos also testified that 17 her sister was travelling in the middle lane immediately before the accident and that she swerved to 18 the right to avoid Nguyen’s vehicle, which had no headlights on. Ramos testified that she and 19 Nguyen were transported from the scene in the same ambulance and that Nguyen appeared really 20 drunk to her since he was lying next to her and smelled like alcohol. 21 6. On February 25, 2022, Plaintiff, Serenity Sky Carmen Ramos, filed suit against 22 Defendants/Cross-Complainants, Securitas Security Services USA, Inc., Kaiser Foundation Health