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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
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DATE: September 30, 2020
20 TIME: 8:30 a.m.
DEPT.: 21
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Complaint Filed: August 9, 2018
22 Trial Date: None set.
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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.
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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.
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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
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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.)
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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
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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
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would be unable to prove his remaining claims against Kidde were the case to proceed to trial.
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Plaintiff likewise lacks sufficient evidence that any alleged defect is the proximate cause o
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Plaintiff s injuries. Plaintiff not only caused the fire while cooking, but also allowed the fire to
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grow without inonitoring the stovetop. (Lukitsch Decl. $ 4, Exh. B.) Plaintiff only noticed the fir
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when it had reached a significant height. Then, Plaintiff used the Subject Fire Extinguisher
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improperly— as he reported to first responders and medical providers. (Id.) He failed to review
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the full product instructions prior to the incident. (Id.) After improperly using the Subject Fire
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Extinguisher, Plaintiff then caused his injuries by picking up the flaming pot and carrying it
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outside, spilling its contents on himself in the transport. (Id.) Plaintiff did not try any other
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method, such as placing a lid on the pan to smother the fire, or dousing it with baking soda or salt.
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(Id.) He likewise did not immediately call 911. (Id.) Thus, Kidde maintains that it would stand a
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strong probability of prevailing at trial or, at a minimum have any damages reduced by plaintiff s
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comparative fault.
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D. Settlement Between Plaintiff and Kidde
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In order to avoid the risks attendant with trial and Kidde's pending Motion for Summary
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Judgment, Kidde and Plaintiff entered into a Confidential Settlement Agreement and Release
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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."
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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
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The settling defendant's proportionate liability is a critical factor. A settlement need only
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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
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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
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no out-of- ocket medical costs to date because he is a Medi-Cal recipient and his Medi-Cal lien
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was reduced to $ 139,714,41 in January, 2020. (Lukitsch Decl. $ 5, Exh. C and $ $ 10, 11.)
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Kidde maintains that its product operated properly and had no defect and further claims
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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
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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.
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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
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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
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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,
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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
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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.)
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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
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By:
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Bethany Gayle Lukitsch
15 Alicia C. O'rien
16 Attorneys for WALTER KIDDE PORTABLE
EQUIPMENT, INC.
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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
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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))
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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.
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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
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811 Wilshire Blvd., Suite 700
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l.os Angeles, CA 90017
213.347.0240
14 213.623.1957 (Fax)
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WALTER I&IDDE PORTABLE EQUIPMENT INC.'S NOTICE OF MOTION AND MOTION TO DETERMINE
GOOD FAITH OF SETI'LEMENT