arrow left
arrow right
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
  • GEVARGIZ, RAMIN vs KIDDE RESIDENTIAL & COMMERCIALProduct Liability: Unlimited document preview
						
                                

Preview

MCGUIREWOODS LLP BETHANY GAYLE LUKITSCI-I (SBN 314376) Electronically Filed ALICIA C. O'RIEN (SBN 307301) 9/8/2020 7:45 PM Wells Fargo Center, South Tower Superior Court of California 355 S. Grand Ave., Suite 4200 County of Stanislaus Los Angeles, CA 90071-3103 Clerk of the Court Telephone: 213,627.2268 Facsimile: 213.627.2579 By: Nicole Nelson, Deputy blukitsch@mcguirewoods.corn $60 PD Attorneys for Defendant WALTER KIDDE PORTAI3LE EQUIPMENT INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF STANISLAUS — CITY TOWERS COURTHOUSE RAMINGEVARGIZ, CASE NO. CV-20-001723 12 Plaintiff, IIon. Marie S. Silveira Dept. 21 13 vs. DEFENDANT WALTER KIDDE 14 WALTER KIDDE PORTABLE PORTABLE EQUIPMENT INC.'S EQUIPMENT, INC., ESTER MODENA NOTICE OF MOTION AND MOTION TO 15 13ALL, an Individual, BALL PROPERTIES & DETERMINE GOOD FAITH OF MANAGEMENT, LLC, KAREN PRADA, an SETTLEMENT 16 individual, LARRY PRADA, an individual, and DOES I through 100, inclusive, [Filed concurrently with Notice of Motion and 17 Motion to File Confidential Settlement Defendants. Agreement Under Seal; Declaration of 18 Bethany G, Lukitsch; jproposedf Orderf 19 DATE: September 30, 2020 20 TIME: 8:30 a.m. DEPT.: 21 21 Complaint Filed: August 9, 2018 22 Trial Date: None set. 23 24 25 26 27 28 WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT TO TIIE COURT, ALL PARTIES, AND TIIEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on September 30, 2020 at 9:00 a.m. in Department 21 of the above-captioned court, located at 801 10th Street, Modcsto, California 95354, Defendant Walter Kidde Portable Equipment Inc. ("Kidde") will move pursuant to Code of Civil Procedure $ 877.6 for a determination of the good faith of the settlement between Plaintiff, Ramin Gcvargiz (" Plaintiff" ) and Kidde. This motion will be made on the grounds that such settlement was entered into in good faith within the meaning of Code of Civil Procedure $$ 877 and 877.6. The parties to this action are: 10 ~ Plaintiff, Ramin Gevargiz ~ Defendant, Walter Kidde Portable Equipment, Inc. 12 ~ Defendant, 13all Properties and Managcmcnt, LLC 13 ~ Defendant, Karen Prada 14 ~ Defendant, Larry Prada 15 The portions of the pleadings affected by thc settlement are: 16 ~ Causes of Action Four, Five, Six, Seven and Eight in the Complaint filed by 17 Plaintiff on August 9, 2018; and 18 ~ Causes of Action One, Two, Three and Four in the Cross-Complaint filed by 19 Defendants, Ball Properties & Management, LLC, Karen Prada and Larry Prada 20 (collectively the "Ball Property Defendants") on October 18, 2018. 21 Kidde requests this Court issue an order determining that the settlement between Plaintiff 22 and Kidde was made in good faith and dismissing, with prejudice, all claims against Kidde in 23 Plaintiff s Complaint and in Ball Properties and Management, LLC, Karen Prada and Larry 24 Prada's Cross-Complaint, which are enumerated above. 25 This motion will be based upon this notice, thc attached meinorandum in support and 26 declaration of Bethany G. Lukitsch, the files and records in this action, and any further evidence 27 and argument that the Court may receive at or before the hearing. 28 WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT DATED: September 8, 2020 Respectfully submitted, MCGUIREWOODS LLP By Bethany Gayle Lukitsch Alicia C. O'rien Attorneys for Defendant, WALTER KIDDE PORTABLE EQUIPMENT, 10 INC. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE rnnn v ~ re nr c vw& cacao MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION On the evening of July 27, 2017, Plaintiff was frying potatoes in oil on a pan on the cooktop of his stove. According to Plaintiff, flames suddenly erupted causing a kitchen fire (the "incident"). Plaintiff claims to have attempted to use a Kidde fire extinguisher (" Subject Fire Extinguisher") purchased and supplied by his landlord, the Ball Properties Defendants, to put out the fire. When he was unable to put the fire out with the Subject Fire Extinguisher, Plaintiff, who was shhtless, carried the flaming grease pan in his bare hands outside and burned himself in the transport. After good faith, atm's length negotiation, Plaintiff and Kidde reached a settlement of Plaintiff s claims against Kidde in this action. Kidde now requests this Court's deterinination that the settlement was made in good faith, so that Kidde may be dismissed entirely from the action 13 with prejudice and the Ball Property Defendants'ross-claims extinguished. The Court should grant Kidde's motion for a determination of good faith of the settlement 15 because it is within the "reasonable range" of Kidde's proportional share of liability for Plaintiff s alleged injuries, as required under Tech-Bill, Inc. v IVoodward-Clyde dl Associates (1985) 38 Cal.3d 488. Moreover, the settlement was negotiated at aim's length and accurately reflects the strength of Plaintiff s clainis and Kidde's defenses. In accordance with the provisions of Code of Civil Procedure f 877 and 877.6 and California Rules of Court 3.1382 this Court should find that the settlement between Plaintiff and Kidde was entered into in good faith and dismiss all claiins in 21 the Complaint and Cross-Complaint against Kidde, II. PERTINENT I'ACTUAL AND PROCEDURAL HISTORY 23 On July 27, 2017 at 1:00 a.m. Plaintiff caused a grease fire in his apartinent while frying potatoes on his electric stove. (Declaration of Bethany G. Lukitsch $ 4, Exh. B [plaintiff s 25 deposition excerpts].) Plaintiff did not initially notice when the oil burst into fliunes — only noticing them when the flames reached two to three feet in height. (Id.) Plaintiff attempted to use the Subject 1'ire Extinguisher to put out the fire. (Id.) He did not try any other method, such as placing a lid on the pan to smother the fire, or dousing it with baking soda or salt. (Id.) He 4 WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT likewise did not iinmediately call 911. (Id.) Rather, after he failed to put out the fire, Plaintiff made the decision to grab the bunung pan, while shirtless, with his bare hands, and carry it outsid of the house. (Id.) He sustained all of his injuries while transporting the burning pan outside. (Id) Plaintiff later told medical providcrs and first responders that he did not know how to use th Subject Fire Extinguisher. (Lukitsch Decl. $ 6, Ex. D, p. 10 [Turlock fire report].) Plaintiff filed this action claiming damages for personal injuries related to the incident on August 9, 2018. Kidde was the designer, manufacturer and distributor of the Subject Fire Extinguisher, (Lukitsch Decl. $ 7.) Thc Ball Properties Defendants were the owners of the property where the incident occurred and Plaintiff s landlords at the time of the incident. (Lukitsc 10 Decl. $ 8.) Plaintiff asserted causes of action against the Ball Properties Defendants for negligence (First Cause of Action) and Premises Liability (Second Cause of Action). Plaintiff 12 asserted causes of action against Kidde for Negligcncc (Third Cause of Action), Strict Products 13 Liability — Manufacturing Defect (Fourth Cause of Action), Strict Products Liability — Design 14 Defect (Fifth Cause of Action), Strict Products Liability—Failure to Warn (Sixth Cause of 15 Action), Breach of Express Warranty (Scvcnth Cause of Action), and Breach of Implied Warranty 16 (Eighth Cause of Action). On October 18, 2018 the Ball Properties Defendants filed a cross- 17 complaint asserting claims for indenrnity, contribution, apportionment and declaratory relief 18 against Kidde. 19 Kidde liled a motion for summary judgment with regards to Plaintiff s Failure to Warn 20 (Sixth Cause of Action), Breach of Express Warranty (Seventh Cause of Action), and Breach of 21 Implied Waixanty (Eighth Cause of Action), but agreed to withdraw the motion upon reaching a 22 settlement with Plaintiff, (Lukitsch Decl. $ 9.) 23 A. Damages Claimed 24 Plaintiff sufi'ered significant bunts on his torso, arms and hands. (Lukitsch Decl. $$ 4 & 5, 25 Exh. B 4 C.) However, he made an excellent recovery and now only has scarring in those areas. 26 (Id.) He does not contimie to treat for any physical condition. He claims only continued mental 27 health treatment from the event. (Id.) 28 WALTER 1& ID DE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT Plaintiff claims approximately $495,530.94 in medical costs. (Lukitsch Decl. $ 4, Exh. C, See Plaintiff s Response to No. 6.4); however, Plaintiff was a Medi-Cal recipient and most of his medical costs were paid by Medi-Cal. (Lukitsch Decl. $ 10.) Plaintiff s Medi-Cal was reduced in January 2020 to $ 139,714.41. (Luldtsch DecL $ 11.) B. The Ma'ori of Plaintiff's Claims A ainst Kidde Fail as a Matter of Law For a products liability claim based on failure to warn to survive, the lack of a sufficient warning must be a substantial factor in causing the plaintiff s harm. See Bunch v.Hoffinger Indus., Inc., 123 Cal.App.4th 1278, 1303 (2004). Plaintiff did not read the overwhelming majorit of the instructions and warnings provided with the Subject Fire Extinguisher. (Lukitsch Decl. ) 4, Exh. B.) Fle only looked at thc pictograms on the label of the product. (Id.) And he admits those pictograins were "clear, transparent, sufficient and complete." (Id.) Thus, as Plaintiff cannot establish any deficiency with thc warnings provided with the Subject Fire Extinguisher, his claim 13 for failure to warn fails as a matter of law. Plaintiffs claims I'or Breach of Warranty likewise fail. Plaintiff lacks privity with Kidde 15 as he did not purchase the Subject Fire Extinguisher and consequently, he cannot assert a claim fo Breach of Implied Warranty. Although every contract for the sale of goods contains an implied warranty of merchantabilily, tliat implied warranty is only actionable in instances where the 18 plainti IT can establish privity of contract. See All 8'est Electronics, Inc. v.M-B- 8', Inc., 64 Cal.App.4th 717, 724 (1998) (" Vertical privity is a prerequisite in California for recovery on a theory of breach of implied warranties of fitness and merchantability."); see also Atkinson v.Elk 21 Corp. of Texas, 142 Cal.App.4th 212, 229 (2006) (holding that a manufacturer is not responsible for a plaintiff's injury under a theory of implied warranty of merchantability if the plaintiff and 23 defendant are not in privity). Plaintiff also has no claim for Brcach of Express Warranty. If a plaintiff lacks privity with 25 the product seller, in order to assert a breach of warranty claim, he must additionally establish a 26 "privity substitute" showing Plaintiff s reliance upon a statement by the seller. See, e.g,, Keegan 27 v. Ain. IIonda Motor Co., Inc., 284 F.R.D. 504, 546 (C.D. Cal. 2012). Because Plaintiff lacks privity with Kidde, Plaintiff must establish that he relied upon the representations by Kidde. WALTER I&IDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT However, by Plaintif1's own admission, he never saw, let alone relied on, any representation from Kidde regarding the Subject Fire Extinguisher. Plaintiff did not purchase the Subject Fire Extinguisher and did not read any materials about the Subject Fire Extinguisher other than a limited portion of pictograms on the label. (Lukitsch Decl. $ 4, Exh. B.) Unable to show any specific express statements by Kidde that form the basis of the bargain for the product's sale, as well as lacking any form of rcliancc upon any stateinents, Plaintiff s express warranty claim cannot stand, C. 1'laintiff Has Not Articulated A Le all Su ortable Defect Theo and Cannot Show Proxiniate Cause Kidde maintains that Plaintiff also lacks sufficient evidence of any defect to the Subject 10 Fire Extinguisher. (Lukitsch Decl. $ 12.) Plaintiff has failed to identify any manufacturing or design defect to the Subject Fire Extinguisher. (Id.) Consequently, Kidde asserts that Plaintiff 12 would be unable to prove his remaining claims against Kidde were the case to proceed to trial. 13 Plaintiff likewise lacks sufficient evidence that any alleged defect is the proximate cause o 14 Plaintiff s injuries. Plaintiff not only caused the fire while cooking, but also allowed the fire to 15 grow without inonitoring the stovetop. (Lukitsch Decl. $ 4, Exh. B.) Plaintiff only noticed the fir 16 when it had reached a significant height. Then, Plaintiff used the Subject Fire Extinguisher 17 improperly— as he reported to first responders and medical providers. (Id.) He failed to review 18 the full product instructions prior to the incident. (Id.) After improperly using the Subject Fire 19 Extinguisher, Plaintiff then caused his injuries by picking up the flaming pot and carrying it 20 outside, spilling its contents on himself in the transport. (Id.) Plaintiff did not try any other 21 method, such as placing a lid on the pan to smother the fire, or dousing it with baking soda or salt. 22 (Id.) He likewise did not immediately call 911. (Id.) Thus, Kidde maintains that it would stand a 23 strong probability of prevailing at trial or, at a minimum have any damages reduced by plaintiff s 24 comparative fault. 25 D. Settlement Between Plaintiff and Kidde 26 In order to avoid the risks attendant with trial and Kidde's pending Motion for Summary 27 Judgment, Kidde and Plaintiff entered into a Confidential Settlement Agreement and Release 28 WALTER l&IDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTI.EMENT (" Settlement Agreenient") on April 20, 2020. (Lukitsch Decl. $ 3, 13.) The principal terms of the Settlement are as follows: Kidde will pay Plaintiff a confidential sum (hereinafter referred to as "Settlement Payment" ) in exchange for a release of all claims against Kidde; the release includes unknown claims related to the incident and waives protection of California Civil Code Section 1542; Plaintiff will dismiss all causes of action alleged against Kidde in his complaint; Kidde and Plaintiff shall each bear its own court costs, attorney's fees and expenses associate with the Action; Plaintiff will hold Kidde harmless and indemnify Kidde for any future actions by Medi- Cal or other lien holders related to the incident at issue in this action; and the settlement is contingent upon an order fiom this Court determining the settlement to be made in good faith. 10 (Id.) The Confidential Settlement Agreement is lodged with the Court as Exhibit A to the Lukitsch Decl. in conjunction with Kidde's Motion to File Under Seal Confidential Settlement 12 Agreement. 13 Kidde makes no factual admissions and further denies that it has any liability to Plaintiff 14 under the Settleinent Agreenaent. (Lukitsch Decl. $ 3, 13.) The Settlement Agreement further 15 provides for full, final and complete resolution with regard to Plaintiff and Kidde's disputes 16 regarding the incident giving rise to this action. (Id.) Plaintiff and Kidde negotiated the settlement 17 in good faith and at ami's length and the Settlement Payment represents good and valuable 18 consideration for Plaintiff s release of his claims against Kidde. (Lukitsch Decl. 1[ 14.) 19 III. LEGAL AIIGUMENT 20 A. A~hbl L 21 Code of Civil Procediu e section 877 provides that "[w]here a release, dismissal..., or a 22 covenant not to sue... is given in good faith before verdict or judginent to..." some but not all, 23 joint tortfeasors or co-obligors, it shall "discharge the party whom it is given from all liability for 24 any contribution to any other parties." (Civ. Proc. Code $ 877.) Any party to the action, including 25 the settling party, may request or obtain a hearing to determine the good faith nature of a 26 settlement, the court may properly rely on (1) supporting declarations, (2) other evidence received 27 at the hearing, or (3) the court's "personal experience and [the guidance] of experts in the field." 28 WALTER KIDD E PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT (Tech-Bilt, Inc. v. iVoodvrard-Clyde d'cAssociates (1985) 38 Cal.3d 488, 500; Civ. Proc. Code $ 877.6.) "The good faith provision of section 877 mandatcs that the courts review agreements purportedly made under its aegis to [e]nsure that such settlemcnts appropriately balance the contribution statute's dual objectives" of equitable sharing and encouragement of settlement. (Tech-Bitt, Inc., supra, 38 Cal.3d at 494; See also Mattco Forge Inc. v.Arthur Young dt: Co. (1995) 38 Cal.App.4th 1337, 1349, "This legislation has two objectives: equitable sharing of costs among parties at fault and encouragement of settlements.") Thc relevant Tech-Bi it factors for determining whether a settlement was made in good faith include: (1) the rough approximation of 10 the plaintiff's total recovery and the settling defendant's proportionate liability; (2) the settlement atnount; (3) the relative allocation of settlement proceeds among the plaintiffs; (4) the recognition 12 that a defendant should pay less through settlement than he would have to pay if found liable at 13 trial; (5) the settling party's financial condition and relevant insurance policy limits; and (6) the 14 existence of colhtsion, fraud or tortious conduct aimed at injuring the interest of nonsettling 15 defendants. (Id. at 499.) Nevertheless, "only when thc good faith nature of a settlement is disputed 16 [is it]incumbent upon the trial court to consider and weigh the Tech-Bilt factors. (City of Grand 17 Ter~ace v. Sup. C(. (1987) 192 Cal.App.3d 1251 1261.) Of course, not every factor will apply in 18 every case, (Dole Food Co., Inc. v, Suir. Ct. (Shell Oil Co.) (2015) 242 Cal.App.4th 894, 909.) 19 The court's evaluation of good faith settlement is "made on the basis of information 20 available at the time of settlement." (Tech-Bilt, supra, 38 Cal.3d at 499.) All in all, the "trial court 21 must inquire 'whether the amount of thc settlement is within thc reasonable range of the settling 22 tortfeasor's proportional share of comparative liability for the plaintiff s injuries." (paciJiCare of 23 Cal. v. Bright Medical Associates, Inc. (2011) 198 Cal.App.4th 1451, 1464 (quoting Tech-Bilt, 24 supra, 38 Cal.3d at 499). "Dy necessity, this reasonable range test leaves substantial latitude to 25 the discretion of the trial court, "and it is [t]he party asserting the lack of good faith, who has the 26 burden of proof... that thc settlement is so far 'out of the ballpark'n relation to these factors as 27 to be inconsistent with the equitable objectives of the statute." (Tech-Bilt, supra, 38 Cal.3d at 499- 28 500.) WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT A party need not produce the settlement agreeinent to obtain good faith approval from the 2 conic, where the settlement is a discrete monetary settlemcnt (cf. MedipIex of Cal. Inc. v. Sup, Ct. 3 (1995) 34 Cal.App.4th) for a singular type of harm (i.e. personal injuiy) (cf. Alcal Roofing & 4 Insulation v. Sup. Ct. (1995) 8 Cal.App.4th 748) and is not a sliding-scale settlement agreemcnt 5 (cf. J. Allen Radford Co. v. Sup. Ct. (1989) 216 Cal.App.3d 1418). The trial couit's "determination that thc settlemcnt was made in good faith shall bar any 7 other joint tortfeasor or co-obligor fiom any further claims against the settling tortfeasor or co- 8 obligor for equitable comparative contribution, or partial comparative indemnity, based on 9 comparative negligence or comparative fault." (Civ. Proc. Code $ 877.6(c).) Upon determining a 10 settleiuent was in "good faith," the court may dismiss the nonsettling tortfeasors'ndemnity claims 11 against the settling tortfeasor. (Cal. Rules of Court 3.1382.) 12 B. The Settlement Was Entered into in Good Faith 13 1. The Settlement Pa ment is Pro ortionate to An Liabili Kidde has to Plaintiff 1ractors 1-3 14 The settling defendant's proportionate liability is a critical factor. A settlement need only 15 be within "the ballpark" of thc settling defendant's share of liability. (Tech-Built, supra, 38 Cal,3 at 499-500.) "The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor's 18 liability to be." (City of Grand '/'et race v. Sup.Ct. (Boyter) (1987) 192 Cal.App.3d 1251, 1262; Cahill v. San Diego Gas & Elec, Co., supra, 194 Cal.App.4th at 968, holding settlement of 1/2 of 1% of potential damages was within ballpark based on facts known at time of settlement.) 1lere, Plaintiff allcges that he has nearly $ 500,000 in medical expenses, but he has incurre 22 no out-of- ocket medical costs to date because he is a Medi-Cal recipient and his Medi-Cal lien 23 was reduced to $ 139,714,41 in January, 2020. (Lukitsch Decl. $ 5, Exh. C and $ $ 10, 11.) 24 Kidde maintains that its product operated properly and had no defect and further claims 25 that its fire extinguisher was not the cause of Plaintiff s injuries. (Lukitsch Decl. tt 12.) Kidde further maintains that Plaintiff has no legal basis for his claims for failure to warn and breach of 27 28 WALTER KIDDE PORTABLE EQVIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT warranty against Kiddc. (Lukitsch Decl. $ 12.) Kidde's Motion for Summary Judgment was pending at the time of settlement. (Lukitsch Decl. $ 9.) Even if Kidde were not to prevail on Summary Judgment and the case were tried, Kidde maintains that a juiy would lind Kiddc is not liable for Plaintiff's damages or that Plaintiff would be found to have significant comparable fault for starting the fire and choosing to carry the burning pan outside without miy protection. (Lukitsch Decl. tt 12.) Nevertheless, Kidde agreed to pay Plaintiff a fair, reasonable and not insignificant confidential settlement amount in consideration of the potential cost of litigating the case through trial and other business considerations. (Lukitsch Decl. $ 3, Ex. A and $ 14.) 10 Furthermore, the court must consider not only the settlor's potential liability to plaintiff, bu also its proportionate sharc of culpability as among all parties ageged to be liable for the same 12 injury. (TSI Seismic Tenant Space, inc. v.Sup. Ct. (Geocon) (2007) 149 Cal.App.4th 159, 166.) 13 While Kidde takes no position as to the Ball Property Defendants'iability in this matter, Plaintiff 14 alleges that his landlord and property owners, the Ball Properties Defendants, are liable to him as 15 thc purchaser of the subject fire extinguisher and the entities responsible for maintaining and 16 inspecting the subject fire extinguishers. Plaintiff further claims the Ball Property Defendants 17 further had a duty to ensure that hc knew how to work the fire extinguisher in the event of a fire. 18 Thus, Kidde's scttlcmcnt payment offered to Plaintiff is certainly proportional to its 19 potential liability and is not grossly disproportionate to Plaintiff's Medi-Cal lien or non-existent 20 inedical bills, considering that thc third Tech-BiIt factor requires that the Court's good faith 21 settlement dctcnnination include "a recognition that a settlor should pay less in settlement than if 22 found liable atter a trial." (Tech-Built, supra, 38 Cal.3d at 499-500 (emphasis added).) The 23 settlement is undoubtedly 'within thc ballpark" of Kidde's share of liability, particularly given the 24 weaknesses in plaintiff s claims against it. (Jbid.) Thus, the settlement satisfies the first three of 25 the Tech-Bilt factors. 26 2. Allocation of Settlement Proceeds Amon Plaintiffs Factor 4 27 The fourth factor is not nt issue here because all settlement funds will bc paid to a single 28 pl'iintiff, who suffered an indivisible injury. Therefore, no allocation is necessary. 11 WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT 3. Settlor's Financial Condition and Insurance Polic Limits Factor 5 2 The fifth factor is not relevant to the determination of good faith settlement in this case. 3 This factor is only relevant in the case of a disproportionately low settlement with an insolvent 4 clcfendant or defendant with limited insurance. (Tech-Built, supra, 38 Cal.3d at p. 499.) For this factor to apply the Court inust lmd that the settlement at issue is "disproportionately low." (See 6 LC. Rudd if. Son, Inc. v. Sup.Ct. (I rystal) (1997) 52 Cal.App.4th 742, 749-750 — discovery 7 denied where settlement was not "disproportionately low" which is a "threshold requirement" for 8 discovery of a settling defendant's confidential financial condition.) As demonstrated above the 9 settlement is far from disproportionately low and Kidde does not claim that this settlement is in 10 good faith because of its financial position; rather the settlement is in good faith because it 11 represents a fair share of Kidde's potential liability in this matter. Therefore, Kidde's financial 12 condition and insurance limits are irrelevant to the good faith determination. 13 4. No Fvidencc of Collusion Fraud or Tortious Conduct between Plaintif and l&idde Factor 6 14 Plaintiff and Kidde negotiated the settlement in good faith and at arm's length and the Scttlcmcnt Payinent rcprcscnts good mid valuable consideration for Plaintiff s release of his claim a ainst Kidde. (Lukitsch Decl. $ 1 4.) There is no evidence of collusion, fraud or tortious conduct 7 between Plaintiff and Kidde aimed at making any non-settling parties pay more than their fair sI iare. ( Tech-Bi lt,Inc., supi a, 3 8 Cal.3d at 499.) ln fact, even after the settlement was reached, 9 lf iddc voluntarily delayed moving this Court for approval to allow the Ball Property Defendants an opportunity to seek a corporate representative deposition of Kidde, prior to Kidde's requested disniissal from this matter. This sixth factor supports a fmding of good faith settlement. Based on the six Tech Built factors, the Court should find that the settlement between Plaintiff and Kidde is fair and "within the reasonable range of [Kidde's] proportional share of 24 comparative liability for plaintiff s injuries" especially in light of the "recognition that a settlor should pay less than he would if hc were found to be liable after trial." (Tech-Bill, Inc., supra, 38 Cnl.2d at 499.) 28 12 WALTER KIDD E PORTA 8 LE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT IV. CONCLUSION For the foregoing reasons, Kidde respectfully requests that this Court grant this motion an find that the settlement between Plaintiff and Kidde was entered into in good faith. Kidde further requests that this Court issue an order dismissing, with prejudice, all claims against Kidde in Plaintiff s Complaint and in Ball Properties k, Management, LLC, Karen Prada and Larry Prada's Cross-Complaint. DATED: September 8, 2020 Respectfully submitted, MCGUIREWOODS LLP 10 By: 12 13 14 Bethany Gayle Lukitsch 15 Alicia C. O'rien 16 Attorneys for WALTER KIDDE PORTABLE EQUIPMENT, INC. 17 18 19 20 21 22 23 24 25 27 28 WALTER KIDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE rnnn Fn r Tu nF cFTTi FtvtFNT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 1800 Century Park East, 8"'loor, Los Angeles, CA 90067. On September 8, 2020, I atzanged to bc served the following document(s) described as DEFENDANT WALTER KIDDE PORTABLE EQUIPMENT INC''S NOTICE OF 6 MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes addressed as follows: SEE ATTACHED LIST 8 0 BY MAIL: I am "readily fanailiar" with the firm's practice of collection and processing correspondence for mailing with the United States Postal Service. Under that practice, it 10 would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereon fully prepaid at Los Angeles, CA, on that same day following ordinary business p ractices. ( C.C.P. 1013 (a) and 1013a ( 3)) 0 (BY ELECTRONIC TRANSMISSION). The docutnent was served electronically and the transmission was reported as complete and without error. 14 p BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a 15 courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or 16 provided for, addressed to the person(s) served hereunder. (C.C.P. II1013(d)(e)) 2 BY HAND DELIVERY: I delivered such envelope(s) by hand to the office ofthe addressee(s). (C.C.P. ) 1011(a)(b)) 18 0 BY PERSONAL SERVICE: I personally delivered such envelope(s) to the addressee(s). (C.C.P. II1011) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and cotvect. Exccutcd on Scptcmbcr 8, 2020, at Los Angeles, CA. 22 23 24 Myr ill spend o 25 26 27 28 14 WALTER KID DE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETTLEMENT SERVICF. LIST Matthew S. McNicholas Attorneys for Plaintiff Juan C. Victoria RAMIN GEVARGIZ McNicholas & McNicholas 10866 Wilshire Blvd,, Suite 1400 Los Angeles, CA 90024 310.474.1582 310.475.7871 (Fax) Victor Alexandroff Nicholas S. Alexandroff The Law Office of Victor Alexandroff 16542 Ventura Blvd., Suite 203 Encino, CA 91436 818.908.8899 10 JetTi L. Johnson Attorneys for Defendants Sonic M. Golden BALL PROPERTIES & MANAGEMENT, Laurie C. Book LLC, KAREN PRADA, and LARRY PRADA Acker & Whipple 12 811 Wilshire Blvd., Suite 700 13 l.os Angeles, CA 90017 213.347.0240 14 213.623.1957 (Fax) 15 16 17 19 20 21 22 23 24 25 26 27 28 15 WALTER I&IDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE GOOD FAITH OF SETI'LEMENT