Preview
J. STEPHANIE KRMPOTIC, SBN 128671 [= 5 Ee >
CHRISTINA W. SUN, SBN 306762 Superior Court of California
Pe BALL & LYNCH County of Placer
ontgomery Street, 7th Floor ‘
San Francisco, California 94111 JAN 04 2018
,teenie: a3} 981-6630 Jake Chat
‘acsimileé: 15) 982-1634 Wa GES
jskrmipotic@lowball.com een oe orte®
Attorneys for Defendant/Cross-Complainant/Cross-Defendant
OREGON SHEPHERD, LLC dba OREGON
SHEPHERD, an Oregon Limited Liability Company
FAX
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
BY
JANENE BAUHOFER and MICHAEL No. SCV0039397
| JOHNSON, | (Unlimited Jurisdiction)
Plaintiffs,
OREGON SHEPHERD, LLC dba OREGON
VS. SHEPHERD’S MEMORANDUM OF POINTS
AND AUTHORITIES FOR DETERMINATION
QUINCY McCOURT, individually and dba OF GOOD FAITH SETTLEMENT
| McQUIN CONSTRUCTION ;
| MANAGEMENT; OREGON SHEPHERD,
LLC dba OREGON SHEPHERD, an Oregon Date: February 13, 2018
Limited Liability Company; and DOES 1- 50, Time: 8:30 a.m.
{|inclusive, _ Dept. 40
Defendants.
Complaint Filed: April 28, 2017
AND RELATED CROSS-ACTIONS.
Defendant/Cross-Defendant/Cross-Complainant Oregon Shepherd, LLC (“Oregon Shepherd”)
submits this memorandum of points and authorities in supports of its motion for determination that its
settlement in the amount of $125 000.00 with Plaintiffs, Janene Bauhofer and Michael Johnson
i
(“Plaintiffs”) was entered into in good faith pursuant to Code of Civil Procedtire § 877.6.
I INTRODUCTION
This action arises from a moth infestation ofa dance studio, allegedly related to the installation
‘of natural wool insulation. Plaintiffs own 5800 Orchard Lane in Colfax, California. They entered into a
Motion\Memorandum
| F\1203\SF0840\Pleadings\GTS and
of Points Authorities.docx
© | ©
contract with McCourt to construct a dance studio on their property. Quincy McCourt, individually and
dba McQuin Construction Management (“McCourt”) purchased natural wool insulation from Oregon
YN
Shepherd. Plaintiffs allege the wool insulation became infested with moths.
W
On April 28, 2017, Plaintiffs filed an action against both Oregon Shepherd and McCourt for
FP
| recovery of their damages. On August 30, 2017 McCourt filed a Cross-Complaint against Oregon
A
Shepherd alleging breach of contract, restitution/unjust enrichment, implied contractual indemnity,
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il]
equitable indemnity, breach of express warranty, breach of implied warranty, negligent
SI
|]misrepresentation, contribution and declaratory relief. On September 25, 2017 Oregon Shepherd filed a
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Cross-Complaint against McCourt for equitable indemnity, contribution, apportionment, and
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declaratory relief.On November 23, 2017, Plaintiffs and Oregon Shepherd reached a settlement.
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McCourt’s and Oregon Shepherd’s Cross-Complaints remain.
RP
Oregon Shepherd’s motion seeks an Order pursuant to Code Civ..Proc. § 887 and 877.6 that this
BP
settlement with Plaintiffs constitutes a good faith settlement of any potential liability of Oregon
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Shepherd arising from its conduct in the pending action, and that all claims against Oregon Shepherd
FP
|for equitable comparative contribution and partial comparative indemnity based on comparative fault
KF
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are dismissed and forever barred.
Re
RR
Il. SETTLEMENT TERMS
RP
The basis, terms, and amount of the settlement are as follows:
a) Oregon Shepherd is to pay Plaintiffs $125,000.00.
NO
to release Oregon Shepherd and itsinsurers from any claims and liability -
NN
b) Plaintiff agrees
tothis matter, including, both direct claims by Plaintiffs, and any assigned claims.
NO
relating
c) The settlement agreement between Plaintiffs and Oregon Shepherd includes a waiver or rights
N
under section 1542 of the California Civil Code.
d) The settlement iscontingent on this Court making a determination that itis in good faith
pursuant to California Code Civ. Proc. § 877.6.
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parties warrants to the other it has not assigned, transferred, or purported to assign of
NN
e). The
22
Motion\Memorandum
J\1203\SF0840\Pleadings\GTS and
of Points Authorities.docx
o Oo.
transfer any claim ormatter covered by the Agreement.
f) Plaintiffs agree to not publicly disparage Oregon Shepherd in any way related to this action.
NO
g) Plaintiffs warrant any liens that may be asserted against the settlement funds are the sole
WHY
responsibility. of the Plaintiffs.
F&F
h) Plaintiffs and Oregon Shepherd agree to bear their own fees and costs, however in the event any
A
action isbrought to enforce the Agreement, the prevailing party shall be entitled to reasonable
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attorney’s fees, and expert witness fees and costs.
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|. LAWAND ARGUMENT
oOo
A, ‘The Court is Authorized toDetermine a Good Faith Settlement
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CO
Under Code of Civil.Procedure § 887, “[w]here a release or dismissal .. .is given in good faith
RSF
KF
before verdict or judgment toone or more of a number of tortfeasors claimed to be liable for the same
FP
NY
tort... [i]tshall discharge the party to whom itis given from all liabilityfor any contribution to any
HB
FF
other parties.” California Code: Civ. Pro. §§877(b). Section 877.6 provides a mechanism for the
FF
FP
determination of good faith. Specifically, section 877.6 states:
FP
HH
Fee
(a) (1) Any party to an action in which it isalleged that two or more parties are joint
tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of
Dns
the good faith of a settlement entered into by the plaintiff or other claimant and one or
BF
more alleged tortfeasors or co-obligors by giving notice in the manner provided in
subdivision (b) of Section 1005 [Noticed Motion]. Upon a showing of good cause, the
HO
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court may shorten the time for giving the required notice to permit the determination of
the issue to be made before the commencement of the trial of the action, or before the
CO
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verdict or judgment if settlement is made after the trialhas commenced.
KF§
NY
Section 877(c) also states “a determination by the court that the settlement as made in good faith
NY
YN
shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor
WD
NY
or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on
FB
YB
comparative negligence or comparative fault.”
MH
NY
OA
NY NY
oN
In making adetermination whether a settlement is made in “good faith,”the Court should
Oo
te
Motion\Memorandum
-3:M203\SF0840\Pleadings\GTS and
of Points Authorities.docx
0 °
cousider whether the settlement is within the reasonable range or within the ball park of the settling
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tortfeasor’s share of liabilityfor the Plaintiff's injuries, taking into consideration the facts and
WN
circumstances of the’ particular case. Lech-Bilt, Inc. v. Woodward-Clyde & Associates, (1985) 38 Cal.
WD
3d 488,499, Good faith depends:on what the Plaintiff knew about liability atthe time of settlement, not
evidence that might be acquired later.Ibid.
BR
.
The California Supreme, Court’s decision in Tech-Bilt, Inc. set forth the standards by which the
A
“good faith” of'a proposed settlement agreement is determined. The factors include: (1) a rough
DH
‘approximation of Plaintiffs total zécovery and the settlor’s proportionate liability; (2) the amount paid in
SI
settlement; (3) a recognition that a settlershould pay less in settlement than iffound liable aftera trial;
C2
| @) the settlor’s financial condition arid insurance policy limits, and if any; and (5) evidence of any
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collusion, fraud, or tortuous conduct between the'settler and the Plaintiffs aimed to injure the interests
| of the nonsettling defendants. bid.
BEES
i, Plaintiffs Recovery and Séttling Party’s Liability
MeCourt purchased wool insulation from Oregon Shepherd through a purchase order. Oregon
Shepherd treats allitswool insulation with a pest resistant borate solution prior to shipment. On or
-about-August 26, 2013, Oregon Shepherd shipped the wool insulation to thejob site. McCourt installed
| the wool insulation in the-dance studio around September or October 2013. McCourt did not install the
BE
| doors and exterior windowsof the dancé studio ‘untilaround three months after the installation of the
wool insulation, which Oregon Shepherd asserts, made the insulation susceptible to infestation. Oregon
eBAR
Shepherd denies all liabilityfor the claims that the wool insulation was defective or falsely advertised.
Plaintiffs made an‘initialdétiiand 6f $156,780.71. This included special damages of the cost to
repair the dance studio, estimated to be about $91,247.31, and the loss of use of the dance studio,
no
F&F
estimated to be aboirt $47,753.42. Plaintiffs also seek general damages including emotional distress and
EBE
pain and suffering.
Oregon Shepherd has agreed to pay Plaintiffs the total sum of $125,000.00. For the
BER :
aforementioned réasons, Oregon Shepherd’s instant settlement with Plaintiff represents a payment of an
amount ‘equal to, if notin excess of, Oregon Shepherd’s proportionate liability.Even so, a “good faith”
settlement does not-cail for perfector evén nearly perfect apportionment of liability,but calls for only a
rough approximation between a settling toitfeasor’s offer of settlement and his proportionate liability.
BSRRE
North County Contractor’s Assn. v. Touchstone Ins. Services (1994) 27 Cal.App.4" 1085, 1090-91._
ii, ‘The Amount Paid in Settlement .
Thé séttlement for which a determination.of good faith issought is$125,000.00.
iii, A -Settlor Should Pay Less in Settlement Than if Found Liable After Trial
he
‘|$N12631SFO840Pteadings\GTS
‘Motion\Memorandumof
Poitis:addAuthoiities.docx
© ©
DUKE
The evaluation of whethér a settlemenit is:ingood faith should take the public policy
consideration that a settlor-should pay less in.settlement than iffound liable after trial,into account in
determining whether the settlement is within the ballpark of the settling parties’ potential share of
liability. Accordingly, a settlenietit
BH
maybe in good faith even where the settlement is less than the
settling
BR
defendant’s anticipated share of liability.In this particular case, the settlement isnot
disproportionately less than Oregon Shepherd's potential liability.
A
iy,, Thé Financial Conditions and Insurance Policy Limits of Settling Parties
BN
The evidence establishes that Oregon Shepherd is paying an appropriate amount in settlement in
MS
Telation:to its. ré8pective share of liabilityin this matter. ,
CO
Vs There is No Evidence of Collusion, Fraud, or Tortious Conduct
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All information and evidence indicates the parties reached the settlement agreement after a joint
expert meeting and arms-length negotiation. All parties participated. The settlement was a result of .
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EB
zealous
BS
advocacy, by both counsel for Plaintiffs and Oregon Shepherd. The settlement amount reflects
this advocacy and a desir by Plaintiffs
e and. Oregon Shepherd to compromise their claims and terminate
ee
| the case, rather than incur the expense, burden,
REE
and uncertainty of a jury trial.There is no evidence of
collusion or fratid on the part of Plaintiffs or Oregon Shepherd. This settlement, and the manner in
Be
which itwas achieved, furthers the public policy in favor of encouraging settlements and allocating.
costs equitably amongst multiple tortfeasors.
BRR RB
Faith |
Good
BPR
lack of good
BBRBRE
ure ction 877.6(d), “[t]he party asserting the
Codeof Civil Proc ed Se
Pursuant to
issue.” See also, Shane v. Superior Court (1984) 160
faith shall have the burden of proof on that
Roe
settlement has the burden of
nt ly, a party challenging a good faith
eanasi
demonstrating e e
that Cons
the eque
settlement is so “out of the ballpark,” in relation to the aforementioned factors,
p
as to be inconsistent with the equitable objectives of the statutes. Tech-Bilt, Inc. 38 Ca.3d at 499-500.
D. Public Policy Favors Settlement
Public policy-clearly favors settlement The court inStambaugh v. Superior Court (1976) 62
Cal. App.3rd 231, 236, reasoried:“The law wisely favors settlements .. .Itis the policy of the law to
RPE
discourage litigation arid to. favor:compromises of doubtful rights and controversies made either inor
at of court. Settlements arehighly favored as productive of peace and good will in the community, and
teducting the experise and persistency of litigation” -
NR
| This settlement is theproduct of a compromise of doubtful rights.
AN
2
5-
AFA203\SE0840\Pleadings\GTS
Matién\Memorandum ofBoints-and
Authorities,
docx
The notice, application, and proposed order shall be given by certified mail, return receipt
DB
requested. Proof of service shall be filed with the Court. Code Civ, Pro..§ 877.6 (a)(2). A motion for
wD
determination of good faith settlement may include a request to dismiss apleading or a portion of a
pleading.
BR
The notice of motion for determination of good faith settlement must listeach party and
| Pleading or portion of pleading affected by the settlement and the date on which the affected pleading
HAH
| was filed. Cal. Rules of Court, rule 3.1382. ‘
As shown by the Declaration of Christina W. Sun, served and filed herewith, and the attached
OY
| Proofs of Service, Notice of this motion, the motion, and a proposed order given by certified mail,
return receipt requested to the interested parties; and the proof(s) of service were filed with this court.
As
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further shown inthe Notice of this motion, Oregon Shepherd has duly listed each party and
| pleading affected by the settlement, and the date on which the affected pleading was filed.
es
F. Conclusion
eplk
Based on the foregoing, Oregon Shepherd respectfully requests that the Court find that its
settlement with Plaintiffs isin good faith and graht this Motion and enter an Order (1) determining the
settlement isin “good faith” within the provisions of California Code Civ. Pro. § 877.6; and (2) that all
claims for equitable comparative contribution, or partial or comparative indemnity, based on
comparative negligence or comparative fault in the cross-complaint filed McCourt against Oregon _
Shepherd be barred.
By
BR
Dated: January A, 2018
LOW, BALL & LYNCH
Ne
Attorneys for Defendant/Cross- -Complainant/Cross-
Defendant
OREGON SHEPHERD, LLC dba OREGON
SHEPHERD, an Oregon Limited Liability Company
26:
J\1203\SF0840\Pleadings\GTS
Motion\Memorandumof Points
andAuthorities.docx
Johnson v.McCourt, et.al.
Placer County Superior Court CaseNo: SCV-0039397
—
2 PROOF OF SERVICE
3 Iam over theage of eighteen(18)yearsand not a partytothewithin action,
: Montgomery Street, La I
7thFloor,San Francisco,California94111. m employed atLow, Ball & Tenchi:505
On the dateindicated:below;I served
the followin
g: dociimen
5)
|
Sern
. faich charted GOCUME t:
De MARE AL: OREGON SHEPHE
’ RD. A LLC db: a
OREGON
er MEMORANDUM OF POINTS AND AUTHORITIES FOR DETERMINATION OF GOOD FAITH
6 |f'onthe listed
addresses:
|)
Todd B. Gary,Esq. JulieD. McElroy
7 | The Gary Law Firm KurtisJ.Anders
50 Oak Court, Suite100 JACOBSEN & McELROY PC
8 |}Danville, California94526 ' 2401 American RiverDrive,Suite 100
Tel: (925) 831-1155 Sacramento, CA 95825
9 | Fax: (925) 831-1188 Tel.(916) 971-4100
Agary@ihesarvlawfirm.com Fax (916)971-4150
10° : . jinicélioy@jacobsenmcelioy.ccm
| Attorneys for Plaintiffs candersi@jace iycom”
4| JaneneBauhofer and Michael Johnson
11
Attorneys for Defendants/Cross-Complainants
QUINCY McCOURT, individuallyand dbaMcQUIN
12 CONSTRUCTION MANAGEMENT
13 []. (BY FILE & SERVE XPRESS) I electronically
served thedocument(s) viaFile & Serve Xpress onthe recipients
designatedon the TransactionReceiptlocated onthe File &Serve Xpress website.
14 [¥] (BY MAIL) I placed atruecopy, enclosedin.asealed,postagepaid envelope,and deposited same forcollection
and
15 mailing atSan Francisco,California,
following ordinarybusinesspractices,
addressed.assetforthbelow.
[] (@®YPERSONAL SERVICE) I caused each suchenvelope tobe deliveredby hand tothe addresseesnoted aboveor on
16 theattachment hereinby ... .
17 [] (@YFACSIMILE) I causedthe saiddocument tobe transmitted
by Facsimile transmissiontothenumber indicatedafter
theaddresses noted aboveor on theattachment herein.
18
[] (@®Y E-MAIL/ELECTRONIC TRANSMISSION) I caused thesaiddocument(s) tobe sentto theperson(s)atthee-mail
19 address(es)indicatedabove oron the attachmentherein.
{] (@Y OVERNIGHT COURIER). I causedeach such envelopeaddressed tothepartiestobe depositedin abox or other
20. facility
regularlymaintained bythe overnightcourieror driverauthorized
by the overnightcourierto receivedocuments.
21 Tam readilyfamiliarwith thislaw firm’spractice
for thecollection
and processingof documents for regularandcertified
mailing,overnight mail,personalservice,electronic
transmission,and facsimile
transaction,and saiddocument(s)are deposited
22. | with theUnited StatesPostalServiceor overnightcourierdepositoryon thesame dayin theordinarycourse ofbusiness.
23 Ideclare underpenalty ofperjurythatthe foregoingistrueand correct,
Exe aiSan Francisco,Californiaon January
4,2018.
a Pr
26
27
28
tr
Motion\Memorandum
7 2\1203\SF0840\Pleadings\GTS and
of Points Authotities.docx
Preview
J. STEPHANIE KRMPOTIC, SBN 128671 [= 5 Ee > CHRISTINA W. SUN, SBN 306762 Superior Court of California Pe BALL & LYNCH County of Placer ontgomery Street, 7th Floor ‘ San Francisco, California 94111 JAN 04 2018 ,teenie: a3} 981-6630 Jake Chat ‘acsimileé: 15) 982-1634 Wa GES jskrmipotic@lowball.com een oe orte® Attorneys for Defendant/Cross-Complainant/Cross-Defendant OREGON SHEPHERD, LLC dba OREGON SHEPHERD, an Oregon Limited Liability Company FAX IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER BY JANENE BAUHOFER and MICHAEL No. SCV0039397 | JOHNSON, | (Unlimited Jurisdiction) Plaintiffs, OREGON SHEPHERD, LLC dba OREGON VS. SHEPHERD’S MEMORANDUM OF POINTS AND AUTHORITIES FOR DETERMINATION QUINCY McCOURT, individually and dba OF GOOD FAITH SETTLEMENT | McQUIN CONSTRUCTION ; | MANAGEMENT; OREGON SHEPHERD, LLC dba OREGON SHEPHERD, an Oregon Date: February 13, 2018 Limited Liability Company; and DOES 1- 50, Time: 8:30 a.m. {|inclusive, _ Dept. 40 Defendants. Complaint Filed: April 28, 2017 AND RELATED CROSS-ACTIONS. Defendant/Cross-Defendant/Cross-Complainant Oregon Shepherd, LLC (“Oregon Shepherd”) submits this memorandum of points and authorities in supports of its motion for determination that its settlement in the amount of $125 000.00 with Plaintiffs, Janene Bauhofer and Michael Johnson i (“Plaintiffs”) was entered into in good faith pursuant to Code of Civil Procedtire § 877.6. I INTRODUCTION This action arises from a moth infestation ofa dance studio, allegedly related to the installation ‘of natural wool insulation. Plaintiffs own 5800 Orchard Lane in Colfax, California. They entered into a Motion\Memorandum | F\1203\SF0840\Pleadings\GTS and of Points Authorities.docx © | © contract with McCourt to construct a dance studio on their property. Quincy McCourt, individually and dba McQuin Construction Management (“McCourt”) purchased natural wool insulation from Oregon YN Shepherd. Plaintiffs allege the wool insulation became infested with moths. W On April 28, 2017, Plaintiffs filed an action against both Oregon Shepherd and McCourt for FP | recovery of their damages. On August 30, 2017 McCourt filed a Cross-Complaint against Oregon A Shepherd alleging breach of contract, restitution/unjust enrichment, implied contractual indemnity, DH il] equitable indemnity, breach of express warranty, breach of implied warranty, negligent SI |]misrepresentation, contribution and declaratory relief. On September 25, 2017 Oregon Shepherd filed a eo Cross-Complaint against McCourt for equitable indemnity, contribution, apportionment, and oO declaratory relief.On November 23, 2017, Plaintiffs and Oregon Shepherd reached a settlement. eB McCourt’s and Oregon Shepherd’s Cross-Complaints remain. RP Oregon Shepherd’s motion seeks an Order pursuant to Code Civ..Proc. § 887 and 877.6 that this BP settlement with Plaintiffs constitutes a good faith settlement of any potential liability of Oregon FE Shepherd arising from its conduct in the pending action, and that all claims against Oregon Shepherd FP |for equitable comparative contribution and partial comparative indemnity based on comparative fault KF Be are dismissed and forever barred. Re RR Il. SETTLEMENT TERMS RP The basis, terms, and amount of the settlement are as follows: a) Oregon Shepherd is to pay Plaintiffs $125,000.00. NO to release Oregon Shepherd and itsinsurers from any claims and liability - NN b) Plaintiff agrees tothis matter, including, both direct claims by Plaintiffs, and any assigned claims. NO relating c) The settlement agreement between Plaintiffs and Oregon Shepherd includes a waiver or rights N under section 1542 of the California Civil Code. d) The settlement iscontingent on this Court making a determination that itis in good faith pursuant to California Code Civ. Proc. § 877.6. Ww parties warrants to the other it has not assigned, transferred, or purported to assign of NN e). The 22 Motion\Memorandum J\1203\SF0840\Pleadings\GTS and of Points Authorities.docx o Oo. transfer any claim ormatter covered by the Agreement. f) Plaintiffs agree to not publicly disparage Oregon Shepherd in any way related to this action. NO g) Plaintiffs warrant any liens that may be asserted against the settlement funds are the sole WHY responsibility. of the Plaintiffs. F&F h) Plaintiffs and Oregon Shepherd agree to bear their own fees and costs, however in the event any A action isbrought to enforce the Agreement, the prevailing party shall be entitled to reasonable DB attorney’s fees, and expert witness fees and costs. YN © |. LAWAND ARGUMENT oOo A, ‘The Court is Authorized toDetermine a Good Faith Settlement eB CO Under Code of Civil.Procedure § 887, “[w]here a release or dismissal .. .is given in good faith RSF KF before verdict or judgment toone or more of a number of tortfeasors claimed to be liable for the same FP NY tort... [i]tshall discharge the party to whom itis given from all liabilityfor any contribution to any HB FF other parties.” California Code: Civ. Pro. §§877(b). Section 877.6 provides a mechanism for the FF FP determination of good faith. Specifically, section 877.6 states: FP HH Fee (a) (1) Any party to an action in which it isalleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of Dns the good faith of a settlement entered into by the plaintiff or other claimant and one or BF more alleged tortfeasors or co-obligors by giving notice in the manner provided in subdivision (b) of Section 1005 [Noticed Motion]. Upon a showing of good cause, the HO Be court may shorten the time for giving the required notice to permit the determination of the issue to be made before the commencement of the trial of the action, or before the CO YN verdict or judgment if settlement is made after the trialhas commenced. KF§ NY Section 877(c) also states “a determination by the court that the settlement as made in good faith NY YN shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor WD NY or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on FB YB comparative negligence or comparative fault.” MH NY OA NY NY oN In making adetermination whether a settlement is made in “good faith,”the Court should Oo te Motion\Memorandum -3:M203\SF0840\Pleadings\GTS and of Points Authorities.docx 0 ° cousider whether the settlement is within the reasonable range or within the ball park of the settling = tortfeasor’s share of liabilityfor the Plaintiff's injuries, taking into consideration the facts and WN circumstances of the’ particular case. Lech-Bilt, Inc. v. Woodward-Clyde & Associates, (1985) 38 Cal. WD 3d 488,499, Good faith depends:on what the Plaintiff knew about liability atthe time of settlement, not evidence that might be acquired later.Ibid. BR . The California Supreme, Court’s decision in Tech-Bilt, Inc. set forth the standards by which the A “good faith” of'a proposed settlement agreement is determined. The factors include: (1) a rough DH ‘approximation of Plaintiffs total zécovery and the settlor’s proportionate liability; (2) the amount paid in SI settlement; (3) a recognition that a settlershould pay less in settlement than iffound liable aftera trial; C2 | @) the settlor’s financial condition arid insurance policy limits, and if any; and (5) evidence of any oO collusion, fraud, or tortuous conduct between the'settler and the Plaintiffs aimed to injure the interests | of the nonsettling defendants. bid. BEES i, Plaintiffs Recovery and Séttling Party’s Liability MeCourt purchased wool insulation from Oregon Shepherd through a purchase order. Oregon Shepherd treats allitswool insulation with a pest resistant borate solution prior to shipment. On or -about-August 26, 2013, Oregon Shepherd shipped the wool insulation to thejob site. McCourt installed | the wool insulation in the-dance studio around September or October 2013. McCourt did not install the BE | doors and exterior windowsof the dancé studio ‘untilaround three months after the installation of the wool insulation, which Oregon Shepherd asserts, made the insulation susceptible to infestation. Oregon eBAR Shepherd denies all liabilityfor the claims that the wool insulation was defective or falsely advertised. Plaintiffs made an‘initialdétiiand 6f $156,780.71. This included special damages of the cost to repair the dance studio, estimated to be about $91,247.31, and the loss of use of the dance studio, no F&F estimated to be aboirt $47,753.42. Plaintiffs also seek general damages including emotional distress and EBE pain and suffering. Oregon Shepherd has agreed to pay Plaintiffs the total sum of $125,000.00. For the BER : aforementioned réasons, Oregon Shepherd’s instant settlement with Plaintiff represents a payment of an amount ‘equal to, if notin excess of, Oregon Shepherd’s proportionate liability.Even so, a “good faith” settlement does not-cail for perfector evén nearly perfect apportionment of liability,but calls for only a rough approximation between a settling toitfeasor’s offer of settlement and his proportionate liability. BSRRE North County Contractor’s Assn. v. Touchstone Ins. Services (1994) 27 Cal.App.4" 1085, 1090-91._ ii, ‘The Amount Paid in Settlement . Thé séttlement for which a determination.of good faith issought is$125,000.00. iii, A -Settlor Should Pay Less in Settlement Than if Found Liable After Trial he ‘|$N12631SFO840Pteadings\GTS ‘Motion\Memorandumof Poitis:addAuthoiities.docx © © DUKE The evaluation of whethér a settlemenit is:ingood faith should take the public policy consideration that a settlor-should pay less in.settlement than iffound liable after trial,into account in determining whether the settlement is within the ballpark of the settling parties’ potential share of liability. Accordingly, a settlenietit BH maybe in good faith even where the settlement is less than the settling BR defendant’s anticipated share of liability.In this particular case, the settlement isnot disproportionately less than Oregon Shepherd's potential liability. A iy,, Thé Financial Conditions and Insurance Policy Limits of Settling Parties BN The evidence establishes that Oregon Shepherd is paying an appropriate amount in settlement in MS Telation:to its. ré8pective share of liabilityin this matter. , CO Vs There is No Evidence of Collusion, Fraud, or Tortious Conduct Be All information and evidence indicates the parties reached the settlement agreement after a joint expert meeting and arms-length negotiation. All parties participated. The settlement was a result of . eo EB zealous BS advocacy, by both counsel for Plaintiffs and Oregon Shepherd. The settlement amount reflects this advocacy and a desir by Plaintiffs e and. Oregon Shepherd to compromise their claims and terminate ee | the case, rather than incur the expense, burden, REE and uncertainty of a jury trial.There is no evidence of collusion or fratid on the part of Plaintiffs or Oregon Shepherd. This settlement, and the manner in Be which itwas achieved, furthers the public policy in favor of encouraging settlements and allocating. costs equitably amongst multiple tortfeasors. BRR RB Faith | Good BPR lack of good BBRBRE ure ction 877.6(d), “[t]he party asserting the Codeof Civil Proc ed Se Pursuant to issue.” See also, Shane v. Superior Court (1984) 160 faith shall have the burden of proof on that Roe settlement has the burden of nt ly, a party challenging a good faith eanasi demonstrating e e that Cons the eque settlement is so “out of the ballpark,” in relation to the aforementioned factors, p as to be inconsistent with the equitable objectives of the statutes. Tech-Bilt, Inc. 38 Ca.3d at 499-500. D. Public Policy Favors Settlement Public policy-clearly favors settlement The court inStambaugh v. Superior Court (1976) 62 Cal. App.3rd 231, 236, reasoried:“The law wisely favors settlements .. .Itis the policy of the law to RPE discourage litigation arid to. favor:compromises of doubtful rights and controversies made either inor at of court. Settlements arehighly favored as productive of peace and good will in the community, and teducting the experise and persistency of litigation” - NR | This settlement is theproduct of a compromise of doubtful rights. AN 2 5- AFA203\SE0840\Pleadings\GTS Matién\Memorandum ofBoints-and Authorities, docx The notice, application, and proposed order shall be given by certified mail, return receipt DB requested. Proof of service shall be filed with the Court. Code Civ, Pro..§ 877.6 (a)(2). A motion for wD determination of good faith settlement may include a request to dismiss apleading or a portion of a pleading. BR The notice of motion for determination of good faith settlement must listeach party and | Pleading or portion of pleading affected by the settlement and the date on which the affected pleading HAH | was filed. Cal. Rules of Court, rule 3.1382. ‘ As shown by the Declaration of Christina W. Sun, served and filed herewith, and the attached OY | Proofs of Service, Notice of this motion, the motion, and a proposed order given by certified mail, return receipt requested to the interested parties; and the proof(s) of service were filed with this court. As © further shown inthe Notice of this motion, Oregon Shepherd has duly listed each party and | pleading affected by the settlement, and the date on which the affected pleading was filed. es F. Conclusion eplk Based on the foregoing, Oregon Shepherd respectfully requests that the Court find that its settlement with Plaintiffs isin good faith and graht this Motion and enter an Order (1) determining the settlement isin “good faith” within the provisions of California Code Civ. Pro. § 877.6; and (2) that all claims for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault in the cross-complaint filed McCourt against Oregon _ Shepherd be barred. By BR Dated: January A, 2018 LOW, BALL & LYNCH Ne Attorneys for Defendant/Cross- -Complainant/Cross- Defendant OREGON SHEPHERD, LLC dba OREGON SHEPHERD, an Oregon Limited Liability Company 26: J\1203\SF0840\Pleadings\GTS Motion\Memorandumof Points andAuthorities.docx Johnson v.McCourt, et.al. Placer County Superior Court CaseNo: SCV-0039397 — 2 PROOF OF SERVICE 3 Iam over theage of eighteen(18)yearsand not a partytothewithin action, : Montgomery Street, La I 7thFloor,San Francisco,California94111. m employed atLow, Ball & Tenchi:505 On the dateindicated:below;I served the followin g: dociimen 5) | Sern . faich charted GOCUME t: De MARE AL: OREGON SHEPHE ’ RD. A LLC db: a OREGON er MEMORANDUM OF POINTS AND AUTHORITIES FOR DETERMINATION OF GOOD FAITH 6 |f'onthe listed addresses: |) Todd B. Gary,Esq. JulieD. McElroy 7 | The Gary Law Firm KurtisJ.Anders 50 Oak Court, Suite100 JACOBSEN & McELROY PC 8 |}Danville, California94526 ' 2401 American RiverDrive,Suite 100 Tel: (925) 831-1155 Sacramento, CA 95825 9 | Fax: (925) 831-1188 Tel.(916) 971-4100 Agary@ihesarvlawfirm.com Fax (916)971-4150 10° : . jinicélioy@jacobsenmcelioy.ccm | Attorneys for Plaintiffs candersi@jace iycom” 4| JaneneBauhofer and Michael Johnson 11 Attorneys for Defendants/Cross-Complainants QUINCY McCOURT, individuallyand dbaMcQUIN 12 CONSTRUCTION MANAGEMENT 13 []. (BY FILE & SERVE XPRESS) I electronically served thedocument(s) viaFile & Serve Xpress onthe recipients designatedon the TransactionReceiptlocated onthe File &Serve Xpress website. 14 [¥] (BY MAIL) I placed atruecopy, enclosedin.asealed,postagepaid envelope,and deposited same forcollection and 15 mailing atSan Francisco,California, following ordinarybusinesspractices, addressed.assetforthbelow. [] (@®YPERSONAL SERVICE) I caused each suchenvelope tobe deliveredby hand tothe addresseesnoted aboveor on 16 theattachment hereinby ... . 17 [] (@YFACSIMILE) I causedthe saiddocument tobe transmitted by Facsimile transmissiontothenumber indicatedafter theaddresses noted aboveor on theattachment herein. 18 [] (@®Y E-MAIL/ELECTRONIC TRANSMISSION) I caused thesaiddocument(s) tobe sentto theperson(s)atthee-mail 19 address(es)indicatedabove oron the attachmentherein. {] (@Y OVERNIGHT COURIER). I causedeach such envelopeaddressed tothepartiestobe depositedin abox or other 20. facility regularlymaintained bythe overnightcourieror driverauthorized by the overnightcourierto receivedocuments. 21 Tam readilyfamiliarwith thislaw firm’spractice for thecollection and processingof documents for regularandcertified mailing,overnight mail,personalservice,electronic transmission,and facsimile transaction,and saiddocument(s)are deposited 22. | with theUnited StatesPostalServiceor overnightcourierdepositoryon thesame dayin theordinarycourse ofbusiness. 23 Ideclare underpenalty ofperjurythatthe foregoingistrueand correct, Exe aiSan Francisco,Californiaon January 4,2018. a Pr 26 27 28 tr Motion\Memorandum 7 2\1203\SF0840\Pleadings\GTS and of Points Authotities.docx