Preview
66063168
Oct 28 2020
04:19PM
] KEITH D. CHIDLAW, Bar No. 133604
Schuering Zimmerman & Doyle, llp
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400 12/3/2020
FAX: 568-0400
4
5 Attorneys for Cross-Defendant JOHNSON ROOFING
COMPANY (sued as Roe 14)
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 JAYSON SCOUBES, et al., NO. 18CV02673
11 Plaintiffs, NOTICE OF SETTLEMENT AND
APPLICATION FOR DETERMINATION
12 vs. OF GOOD FAITH SETTLEMENT
PURSUANT TO C.C.P. § 877.6(a)(2);
13 BILL WEBB CONSTRUCTION; M B D INC., MEMORANDUM OF POINTS AND
et al., AUTHORITIES IN SUPPORT THEREOF
14
Defendants.
15
16 BILL WEBB CONSTRUCTION, INC., HONORABLE ROBERTA. GLUSMAN,
JUDGE FOR ALL PURPOSES
17 Cross-Complainant,
COMPLAINT FILED: 8/16/18
18 vs.
19 ROES 1-1000, INCLUSIVE,
20 Cross-Defendants.
21
22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
23 PLEASE TAKE NOTICE that Cross-Complainant BILL WEBB CONSTRUCTION, INC.
24 ("Webb Construction"), and Cross-Defendant JOHNSON ROOFING COMPANY (sued as
25 Roe 14) ("Johnson Roofing") have reached a settlement in the above-entitled matter.
26 Johnson Roofing is paying Webb Construction $2,500 in exchange for a full release and
27 dismissal.
28 PLEASE TAKE FURTHER NOTICE that Johnson Roofing makes this Application for
01 295062.WPD l
NOTICE OF SETTLEMENT
1 determination that the settlement entered into by and between Webb Construction and
2 Johnson Roofing is in good faith, pursuant to Code of Civil Procedure Section 877.6(a)(2).
3 This Application is based upon this Notice of Settlement, the attached
4 Memorandum of Points and Authorities, the Declaration of Keith D. Chidlaw, the complete
5 pleadings, records and files contained herein and upon such further documentary or
6 other evidence as may be required by the Court.
7 Any party to this action has a period of twenty-five (25) days from the mailing of the
8 Notice of Settlement, Application and Proposed Order within which to file a Notice of
9 Motion to Contest the Good Faith of the Settlement. The notice shall be given in the
10 manner provided in California Code of Civil Procedure section 1 005(b). If no non-settling
11 party in this action files a motion within twenty-five (25) days, the court may approve the
12 settlement.
13 Dated: October Z2 2020
14 Schuering Zimmerman & Doyle, llp
15
16 By
KEITH D. CHIDLAW
17 Attorneys for Cross-Defendant JOHNSON
ROOFING COMPANY (sued as Roe 14)
18
# $ # #
19
20 MEMORANDUM OF POINTS AND AUTHORITIES
21 I.
22 statement of facts
23 This is a construction defect action brought by various owners of houses against
24 the developer Bill Webb Construction ("Webb Construction"). There were originally 16
25 houses at issue. Only three houses remain in the lawsuit. The owners of the other 13
26 houses voluntarily dismissed their Complaint.
27 Webb Construction is the only defendant in the case. Webb Construction in turn
28 cross-complained against various subcontractors involved in the construction of the
01 295062. WPD 2
NOTICE OF SETTLEMENT
1 houses including Johnson Roofing.
2 As plaintiffs' claims relate to roofing issues, the remaining plaintiffs contend the
3 roof sheathing is defective and thus the roof is compromised potentially leading to water
4 intrusion. Plaintiffs have set forth a cost of repair to remove the tiles from the roof, fix the
5 roof sheathing, and replace the tiles.
6 Plaintiffs' contentions concerning the roofs and Johnson Roofing are flawed. First,
7 Johnson Roofing did not install the roof sheathing. That was done by others. Secondly,
8 the roofing material is composition shingles, not tiles.
9 II.
10 STATUTORY AUTHORITY
11 Webb Construction and Johnson Roofing's settlement should be determined to be
12 in good faith because it is within the reasonable range of Johnson Roofing's proportional
13 share of comparative liability for Webb Construction 's claimed damages.
14 California Code of Civil Procedure section 877.6 provides in pertinent part:
15 (a)(1) Any party to an action wherein it is alleged that two or
more parties are joint tortfeasors . .. shall be entitled to a
16 hearing on the issue of good faith of a settlement entered into
by the plaintiff or other claimant and one or more alleged
17 tortfeasors . . ., upon giving notice thereof in the manner
provided in subdivision (b) of section 1005
18
19
(a)(2) In the alternative, a settling party may give notice of
20 settlement to all parties and to the court, together with an
application for determination of good faith settlement and
21 proposed order. The application shall indicate the settling
parties, and the basis, terms and amount of the settlement.
22 The notice, application, and proposed order shall be give by
certified mail, return receipt requested, or by personal service.
23 Proof of service shall be filed with the court. Within 25 days
of the mailing of the notice, application and proposed order...,
24 a non-settling party may file a notice of motion to contest the
good faith of the settlement. If none of the non-settling parties
25 files a motion within 25 days of mailing of the notice,
application and proposed order... the court may approve the
26 settlement. A notice by a non-settling party shall be given in
the manner provided in subdivision (b) of Section 1005...
27
(b) The issue of the good faith of a settlement may be
28 determined bv the court on the basis of affidavits served with
the notice of hearing, and any counteraffidavits filed in
01 295062 .WPD 3
NOTICE OF SETTLEMENT
1 response thereto, or the court may, in its discretion, receive
other evidence at the hearing.
2
3 (c) A determination by the court that the settlement was
made in good faith shall bar any other joint tortfeasor or
4 co-obligor from any further claims against the settling
tortfeasor or co-obligor for equitable comparative
5 contribution, or partial or comparative indemnity, based on
comparative negligence or comparative fault, (b) the party
6 asserting the lack of good faith shall have the burden of proof
on that issue.
7
8 III.
9 THE SETTLEMENT BETWEEN WEBB CONSTRUCTION AND JOHNSON ROOFING
SHOULD BE DETERMINED TO BE GOOD FAITH
10
11 The factors to be considered in determining whether a settlement is in good faith
12 are set forth in the leading case of Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985)
13 38 Cal.3d 488. In that case, the California Supreme Court stated as follows:
14 H[T]he intent and policies underlying section 877.6 require
that a number of factors be taken into account!,] including a
15 rough approximation of plaintiffs total recovery and tne
settlors proportionate liability, the amount paid in settlement,
16 the allocation of the settlement proceeds among plaintiffs,
and the recognition that a settlor should pay less in settlement
17 that he would if he were found liable after a trial. Other
relevant considerations include the financial conditions and
18 insurance policy limits of settling defendants, as well as the
existence of collusion, fraud or tortuous conduct aimed to
19 injure the interests of non settling defendants." (Id., at p. 499.)
20 The settlement reached between Webb Construction and Johnson Roofing clearly
21 passes muster under the Tech-Bilt factors because itis within the reasonable range of
22 Johnson Roofing's proportionate share of comparative liability for Webb Construction's
23 claimed damages.
24 1. Approximation of the Full Value of the Case
25 Johnson Roofing believes the full value of any roof repairs on the three remaining
26 houses is $1,000 per house.
27 2. Johnson Roofing's Proportionate Share of the Settlement
28 Johnson Roofing is paying $2,500.
01295062.WPD 4
NOTICE OF SETTLEMENT
1 3. Recognition That a Settling Defendant Pavs Less in Settlement Than If Found
2 Liable at Trial
3 Johnson Roofing is aware of the costs of defending this case through trial. It is
4 estimated that attorneys' fees and costs through trial would exceed $25,000. The same
5 holds true for Webb Construction. Further, any attempt to collect a verdict against
6 Johnson Roofing might result in an insurance coverage action. In recognition of the costs
7 of further litigation and the possibility ofan additional coverage lawsuit following a verdict,
8 the parties agree it makes economic sense to settle now for $2,500 and avoid further
9 litigation.
10 4. Financial Condition of Johnson Roofing
11 Greg Johnson dba Johnson Roofing Company was the contractor who performed
12 the work on the houses at issue. Greg Johnson dba Johnson Roofing Company is no
13 longer in business. Derek Johnson dba Johnson Roofing Company is the current sole
14 proprietor, but he did not perform any work on the houses.
15 5. Insurance Policy Limits
16 The insurance policy issued to Johnson Roofing has a $1M limit.
17 6. Existence of Collusion. Fraud or Tortuous Conduct
18 No collusion, fraud or tortuous conduct exists. Defense counsel understands Webb
19 Construction is in settlement discussions with plaintiff and with the other cross-
20 defendants.
21 III
22 III
23 III
24 III
25 III
26 III
27 III
28 ///
01 295062.WPD 5
NOTICE OF SETTLEMENT
1 IV.
2 CONCLUSION
3 Based on the foregoing, Webb Construction and Johnson Roofing respectfully
4 request the court approve the proposed order determining that their settlement is made
5 in good faith within the meaning of Code of Civil Procedure §877.6.
6 Dated: October 2S 2020
7 Schuering Zimmerman & OYLE, LLP
8
9 By
KEITH D. CHIDLAW
10 Attorneys for Cross-Defendant JOHNSON
ROOFING COMPANY (sued as Roe 14)
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01 295062.YVPD 6
NOTICE OF SETTLEMENT
1 KEITH D. CHIDLAW, Bar No. 133604
Schuering Zimmerman & Doyle, llp
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Cross-Defendant JOHNSON ROOFING
COMPANY (sued as Roe 14)
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 JAYSON SCOUBES, et al., NO. 18CV02673
11 Plaintiffs, DECLARATION IN SUPPORT OF
APPLICATION FOR DETERMINATION
12 vs. OF GOOD FAITH SETTLEMENT
13 BILL WEBB CONSTRUCTION; M B D INC.,
et al.,
14
Defendants. HONORABLE ROBERT A. GLUSMAN
15 JUDGE FOR ALL PURPOSES
16 BILL WEBB CONSTRUCTION, INC.,
COMPLAINT FILED: 8/16/18
17 Cross-Complainant,
18 vs.
19 ROES 1-1000, INCLUSIVE,
20 Cross-Defendants.
21
22 I,Keith D. Chidlaw, declare:
23 1. I am an attorney at law duly licensed to practice before all courts of the State
24 of California. I am the attorney of record for Cross-Defendant JOHNSON ROOFING
25 COMPANY (sued as Roe 14).
26 2. I have personal knowledge of the matters set forth herein, and if called upon
27 to testify upon the matters set forth herein, I could and would do so competently.
28 3. This lawsuit arises out of a construction defect action brought by various
01 295072.WPD l
DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
1 owners of houses against the developer Bill Webb Construction. There were originally
2 1 6 houses at issue. Only three houses remain in the lawsuit. The owners of the other 13
3 houses voluntarily dismissed their Complaint.
4 Bill Webb Construction is the only defendant in the case. Bill Webb Construction
5 in turn cross-complained against various subcontractors involved in the construction of
6 the houses including Johnson Roofing.
7 The remaining plaintiffs contend the roof sheathing is defective and thus the roof
8 is compromised potentially leading to water intrusion. Plaintiffs have set forth a cost of
9 repair to remove the tiles from the roof, fix the roof sheathing, and replace the tiles.
10 Plaintiffs' contentions concerning the roofs and Johnson Roofing are flawed. First,
11 Johnson Roofing did not install the roof sheathing. That was done by others. Secondly,
12 the roofing material is composition shingles, not tiles.
13 Johnson Roofing believes the full value of any roof repairs on the three remaining
14 houses is $1,000 per house.
15 Johnson Roofing is paying $2,500.
16 Johnson Roofing is aware of the costs of defending this case through trial. It is
17 estimated that attorneys' fees and costs through trial would exceed $25,000. The same
18 holds true for Webb Construction. Further, any attempt to collect a verdict against
19 Johnson Roofing might result in an insurance coverage action. In recognition of the costs
20 of further litigation and the possibility of an additional coverage lawsuit following a verdict,
21 the parties agree it makes economic sense to settle now for $2,500 and avoid further
22 litigation.
23 Greg Johnson dba Johnson Roofing Company was the contractor who performed
24 the work on the houses at issue. Greg Johnson dba Johnson Roofing Company is no
25 longer in business. Derek Johnson dba Johnson Roofing Company is the current sole
26 proprietor, but he did not perform any work on the houses.
27 The insurance policy issued to Johnson Roofing has a $1M limit.
28 III
01295072.WPD 2
DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
1 No collusion, fraud or tortuous conduct exists. Defense counsel understands Webb
2 Construction is in settlement discussions with plaintiff and with the other cross-
3 defendants.
4 I declare under penalty of perjury under the laws of the State of California that the
5 foregoing is true and correct.
6 Executed this ^ ""day of \y<-f 2020, at Sacramento. California.
7
8
KEITH D. CHIDLAW
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01 295072. WPD 3
DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
1 KEITH D. CHIDLAW, Bar No. 133604
Schuering Zimmerman & Doyle, llp
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Cross-Defendant JOHNSON ROOFING
COMPANY (sued as Roe 1 4)
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 JAYSON SCOUBES, et al., NO. 18CV02673
11 Plaintiffs, [PROPOSED] ORDER GRANTING
APPLICATION FOR DETERMINATION
12 vs. OF GOOD FAITH SETTLEMENT
13 BILL WEBB CONSTRUCTION; M B D INC.,
et al.,
14
Defendants. HONORABLE ROBERT A. GLUSMAN
15 JUDGE FOR ALL PURPOSES
16 BILL WEBB CONSTRUCTION, INC.,
COMPLAINT FILED: 8/16/18
17 Cross-Complainant,
18 vs.
19 ROES 1-1000, INCLUSIVE,
20 Cross-Defendants.
21
22 The Application of Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe
23 14) for an order determining the settlement between Webb Construction and Johnson
24 Roofing to be in good faith, having been presented to this Court; and,
25 There being no motion to contest the good faith of the settlement, it appearing to
26 the satisfaction of the Court that said Application is made pursuant to Code of Civil
27 Procedure §877.6(a)(2), and good cause having been shown,
28 ///
01 295074.WPD l
[PROPOSED] ORDER GRANTING APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
1 IT IS HEREBY ORDERED that Cross-Defendant JOHNSON ROOFING COMPANY'S
2 (sued as Roe 14) Application for Determination of Good Faith Settlement is granted.
3 DATED:
4
JUDGE OF THE SUPERIOR COURT
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01 295074.WPD 2
[PROPOSED] ORDER GRANTING APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT
1 KEITH D. CHIDLAW, Bar No. 133604
Schuering Zimmerman & Doyle, llp
2 400 University Avenue
Sacramento, California 95825-6502
3 (916) 567-0400
FAX: 568-0400
4
5 Attorneys for Cross-Defendant JOHNSON ROOFING
COMPANY (sued as Roe 14)
6
7
8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
9
10 JAYSON SCOUBES, et al. NO. 18CV02673
11 Plaintiffs, PROOF OF SERVICE
12 vs.
13 BILL WEBB CONSTRUCTION; M B D INC., HONORABLE ROBERTA. GLUSMAN
et al., JUDGE FOR ALL PURPOSES
14
Defendants.
15 COMPLAINT FILED: 8/16/18
16 BILL WEBB CONSTRUCTION, INC.,
17 Cross-Complainant,
18 vs.
19 ROES 1-1000, INCLUSIVE,
20 Cross-Defendants.
21
22
23 Proof of Service bv Mail - Civil
24 [Code of Civ. Proc. §§ 1011, 1013, 1013a, 2015.5, CRC 10.503, 2.100-2.119]
25 I,Pam Gartman, declare:
26 At the time of service, I was over 1 8 years of age and not a party to this action.
27 My business address is: 400 University Avenue, Sacramento, California 95825.
28 ///
1 On October 28, 2020, 1 served the following documents:
2 1. Notice of Settlement and Application for Determination of Good Faith
3 Settlement Pursuant to C.C.P. § 877.6(a)(2); Memorandum of Points and
4 Authorities In Support Thereof;
5 2. Declaration In Support of Application for Determination of Good Faith
6 Settlement; and
7 3. [Proposed] Order Granting Application for Determination of Good Faith
8 Settlement.
9 By United States mail: I enclosed the documents in a sealed envelope or package
10 addressed to the persons at the addresses given below and placed the envelope for
11 collection and mailing, following our ordinary business practices. I am readily familiar
12 with this business' practice for collecting and processing correspondence for mailing. On
13 the same day that correspondence is placed for collection and mailing, it is deposited in
14 the ordinary course of business with the United States Postal Service, in a sealed
15 envelope, via certified mail, return receipt requested, with postage fully prepaid. I am
16 a resident or employed in the county where the mailing occurred. The envelope or
17 package was placed in the mail at Sacramento, California.
18 I served the documents on the persons addressed as follows:
19
Attorney Representing Phone/Fax/E-Mail
20
Joseph Su Plaintiff (310} 396-9600 - PHONE
21 MILSTEIN JACKSON (310) 396-9635
FAIRCHILD & WADE, LLP jsu@mjfwlaw.com
22 10250 Constellation Blvd.,
14th Floor
23 Los Angeles, CA 90067
24
Julie D. McElroy Cross-Defendant NORTH (916) 971-4100 -PHONE
25 Jennifer H. Carroll STATE PLUMBING, INC. (916) 971-4150 -FAX
JACOBSEN & MCELROY jmcelrov@jacobsenmcelr
26 PC ov.com
2401 American River Dr., jcarroll@iacobsenmcelrov
27 Ste. 100 .com
Sacramento, CA 95825
28 7086
1
2 Attorney Representing Phone/Fax/E-Mail
3 Scott D. Cote Cross-Defendant (916) 565-6222 - PHONE
DIEPENBROCK & HIGHTOWER MASONRY, (916) 565-6220 - FAX
4 COTTER, LLC INC. sdc@diepenbrockcotter.c
1545 River Park Dr., Ste. om
5 201
Sacramento, CA95815-
6 4613
7
Jennifer S. Willis Cross-Defendant DEFCON (916) 283-2678 - PHONE
8 LAW OFFICE OF SHAWN 1 SECURITY SYSTEM (855) 214-7884 -FAX
C. MOORE willj86@nationwide.com
9 2251 Harvard St., Ste. 100
Sacramento, CA 95815-
10 3333
11
Edward R. Huguenin Defendant and Cross- (9161 367-7098 - PHONE
HUGUENIN KAHN LLP Complainant BILL WEBB (916) 367-7491 - FAX
12 ehuguenin@hugueninkah
3001 Lava Ridge Court, CONSTRUCTION, INC.
Ste. 300 n.com
13
Roseville, CA 95661
14
Jacob Koper Cross-Defendant (9 16) 638-6610 - PHONE
15 LAW OFFICES OF JOHN FRANKLIN (855) 631-5920 -FAX
A. BIARD CONSTRUCTION, INC. jkoper@travelers.com
16 P. O. Box 64093
St. Paul, MN 55164-0093
17
18 David A. Harris Cross-Defendants (415) 777-1308 -PHONE
SANTANA VIERRA FRANKLIN (415) 896-6063 - FAX
19 255 California Street, Ste. CONSTRUCTION, INC. david.harrisOl @libertymut
900 And DOOR SYSTEM ual.com
20 San Francisco, CA 941 1 1 DESIGN, INC.
21
Deborah A. Correll Cross-Defendants JOHN (916) 630-3803 - PHONE
22 LAW OFFICE OF PATRICK DAVID WILLIAMS dba J. (916) 630-3848 - FAX
J. CAMPBELL WILLIAMS BACKHOE dcorrell@unitedfiregroup.
23 3880 Atherton Road SERVICE, CHARLES S. com
Rocklin,CA 95765-3700 CRABTREE PAINTING,
24 INC, MILLER GLASS, INC.
25
Namvar Mokri Cross-Defendant OAK (949) 226-7040 - PHONE
Richard LeVu RIDGE CABINETS, INC. (949) 226-7150 -FAX
26
MOKRI VANIS & JONES nmokri@mvillp.com
LLP rlevu@mvjllp.com
27
4100 Newport Place Drive,
28 Ste. 840
Newport Beach, CA 92660
1
2 Attorney Representing Phone/Fax/E-Mail
3 Chad S. Tapp Cross-Defendant RCM (916) 929-1481 - PHONE
Joceline M. Herman ELECTRIC (916) 927-3708 - FAX
4 Porter Scott
350 University Ave., Ste.
5 200
Sacramento, CA 95825
6
7 Karen T. Wagner Cross-Defendant (7751 440-2389 - PHONE
Bremer Whyte Brown & MCCLELLAND AIR (775) 440-2390 - FAX
8 O'Meara, LLP CONDITIONING, INC. kwag ne rObremerwhvte . c
50 W. Liberty St., Ste. 1030 om
9 Reno, NV 89501
10
Jordan A. Rodman Cross-Defendant BUTTE (707) 278-9878 - PHONE
Megan W. Wendell CREEK STONE (707) 278-9880 - FAX
11
Rodman & Associates jrodman@rodman-law.co
149 Stony Circle, Ste. 210 m
12
Santa Rosa, CA 95401 mwendell@rodman-law.c
om
13
14 Kenneth O. Taylor Cross-Defendant MILLER (714) 709-4384 - PHONE
Resnick & Louis, P.C. GLASS, INC. (714) 709-4384 -FAX
15 9891 Irvine Center Dr., Ste. ktavlor@rlattornevs.com
_ ~
200 j
16 Irvine, CA 92618
17
Robert Bellagamba SPECIAL MASTER 925) 552-1207 -DIRECT
18 CASTLE, DEKKER & 925) 552-1200 -OFFICE
BELLAGAMBA 925) 552-1201 - FAX
19 30 Oak Court rbellagamba@dekkerlaw.
Danville, CA 94526 com "
20
21 U.S. LEGAL SUPPORT DOCUMENT DEPOSITORY
2710 Gateway Oaks Drive,
22 Ste. 300
Sacramento, CA 95833
23
24
I declare under penalty of perjury, under the laws of the State of California, that the
25
foregoing is true and correct, and that this declaration was executed on October 28, 2020,
26
at Sacramento, California.
27
28
Pam Gartman
2004-12039
U.S. Postal Service™
U.S. Postal Service™
CERTIFIED MAIL RECEIPT
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66063168 Oct 28 2020 04:19PM ] KEITH D. CHIDLAW, Bar No. 133604 Schuering Zimmerman & Doyle, llp 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 12/3/2020 FAX: 568-0400 4 5 Attorneys for Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 14) 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 JAYSON SCOUBES, et al., NO. 18CV02673 11 Plaintiffs, NOTICE OF SETTLEMENT AND APPLICATION FOR DETERMINATION 12 vs. OF GOOD FAITH SETTLEMENT PURSUANT TO C.C.P. § 877.6(a)(2); 13 BILL WEBB CONSTRUCTION; M B D INC., MEMORANDUM OF POINTS AND et al., AUTHORITIES IN SUPPORT THEREOF 14 Defendants. 15 16 BILL WEBB CONSTRUCTION, INC., HONORABLE ROBERTA. GLUSMAN, JUDGE FOR ALL PURPOSES 17 Cross-Complainant, COMPLAINT FILED: 8/16/18 18 vs. 19 ROES 1-1000, INCLUSIVE, 20 Cross-Defendants. 21 22 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 23 PLEASE TAKE NOTICE that Cross-Complainant BILL WEBB CONSTRUCTION, INC. 24 ("Webb Construction"), and Cross-Defendant JOHNSON ROOFING COMPANY (sued as 25 Roe 14) ("Johnson Roofing") have reached a settlement in the above-entitled matter. 26 Johnson Roofing is paying Webb Construction $2,500 in exchange for a full release and 27 dismissal. 28 PLEASE TAKE FURTHER NOTICE that Johnson Roofing makes this Application for 01 295062.WPD l NOTICE OF SETTLEMENT 1 determination that the settlement entered into by and between Webb Construction and 2 Johnson Roofing is in good faith, pursuant to Code of Civil Procedure Section 877.6(a)(2). 3 This Application is based upon this Notice of Settlement, the attached 4 Memorandum of Points and Authorities, the Declaration of Keith D. Chidlaw, the complete 5 pleadings, records and files contained herein and upon such further documentary or 6 other evidence as may be required by the Court. 7 Any party to this action has a period of twenty-five (25) days from the mailing of the 8 Notice of Settlement, Application and Proposed Order within which to file a Notice of 9 Motion to Contest the Good Faith of the Settlement. The notice shall be given in the 10 manner provided in California Code of Civil Procedure section 1 005(b). If no non-settling 11 party in this action files a motion within twenty-five (25) days, the court may approve the 12 settlement. 13 Dated: October Z2 2020 14 Schuering Zimmerman & Doyle, llp 15 16 By KEITH D. CHIDLAW 17 Attorneys for Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 14) 18 # $ # # 19 20 MEMORANDUM OF POINTS AND AUTHORITIES 21 I. 22 statement of facts 23 This is a construction defect action brought by various owners of houses against 24 the developer Bill Webb Construction ("Webb Construction"). There were originally 16 25 houses at issue. Only three houses remain in the lawsuit. The owners of the other 13 26 houses voluntarily dismissed their Complaint. 27 Webb Construction is the only defendant in the case. Webb Construction in turn 28 cross-complained against various subcontractors involved in the construction of the 01 295062. WPD 2 NOTICE OF SETTLEMENT 1 houses including Johnson Roofing. 2 As plaintiffs' claims relate to roofing issues, the remaining plaintiffs contend the 3 roof sheathing is defective and thus the roof is compromised potentially leading to water 4 intrusion. Plaintiffs have set forth a cost of repair to remove the tiles from the roof, fix the 5 roof sheathing, and replace the tiles. 6 Plaintiffs' contentions concerning the roofs and Johnson Roofing are flawed. First, 7 Johnson Roofing did not install the roof sheathing. That was done by others. Secondly, 8 the roofing material is composition shingles, not tiles. 9 II. 10 STATUTORY AUTHORITY 11 Webb Construction and Johnson Roofing's settlement should be determined to be 12 in good faith because it is within the reasonable range of Johnson Roofing's proportional 13 share of comparative liability for Webb Construction 's claimed damages. 14 California Code of Civil Procedure section 877.6 provides in pertinent part: 15 (a)(1) Any party to an action wherein it is alleged that two or more parties are joint tortfeasors . .. shall be entitled to a 16 hearing on the issue of good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged 17 tortfeasors . . ., upon giving notice thereof in the manner provided in subdivision (b) of section 1005 18 19 (a)(2) In the alternative, a settling party may give notice of 20 settlement to all parties and to the court, together with an application for determination of good faith settlement and 21 proposed order. The application shall indicate the settling parties, and the basis, terms and amount of the settlement. 22 The notice, application, and proposed order shall be give by certified mail, return receipt requested, or by personal service. 23 Proof of service shall be filed with the court. Within 25 days of the mailing of the notice, application and proposed order..., 24 a non-settling party may file a notice of motion to contest the good faith of the settlement. If none of the non-settling parties 25 files a motion within 25 days of mailing of the notice, application and proposed order... the court may approve the 26 settlement. A notice by a non-settling party shall be given in the manner provided in subdivision (b) of Section 1005... 27 (b) The issue of the good faith of a settlement may be 28 determined bv the court on the basis of affidavits served with the notice of hearing, and any counteraffidavits filed in 01 295062 .WPD 3 NOTICE OF SETTLEMENT 1 response thereto, or the court may, in its discretion, receive other evidence at the hearing. 2 3 (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or 4 co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative 5 contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault, (b) the party 6 asserting the lack of good faith shall have the burden of proof on that issue. 7 8 III. 9 THE SETTLEMENT BETWEEN WEBB CONSTRUCTION AND JOHNSON ROOFING SHOULD BE DETERMINED TO BE GOOD FAITH 10 11 The factors to be considered in determining whether a settlement is in good faith 12 are set forth in the leading case of Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 13 38 Cal.3d 488. In that case, the California Supreme Court stated as follows: 14 H[T]he intent and policies underlying section 877.6 require that a number of factors be taken into account!,] including a 15 rough approximation of plaintiffs total recovery and tne settlors proportionate liability, the amount paid in settlement, 16 the allocation of the settlement proceeds among plaintiffs, and the recognition that a settlor should pay less in settlement 17 that he would if he were found liable after a trial. Other relevant considerations include the financial conditions and 18 insurance policy limits of settling defendants, as well as the existence of collusion, fraud or tortuous conduct aimed to 19 injure the interests of non settling defendants." (Id., at p. 499.) 20 The settlement reached between Webb Construction and Johnson Roofing clearly 21 passes muster under the Tech-Bilt factors because itis within the reasonable range of 22 Johnson Roofing's proportionate share of comparative liability for Webb Construction's 23 claimed damages. 24 1. Approximation of the Full Value of the Case 25 Johnson Roofing believes the full value of any roof repairs on the three remaining 26 houses is $1,000 per house. 27 2. Johnson Roofing's Proportionate Share of the Settlement 28 Johnson Roofing is paying $2,500. 01295062.WPD 4 NOTICE OF SETTLEMENT 1 3. Recognition That a Settling Defendant Pavs Less in Settlement Than If Found 2 Liable at Trial 3 Johnson Roofing is aware of the costs of defending this case through trial. It is 4 estimated that attorneys' fees and costs through trial would exceed $25,000. The same 5 holds true for Webb Construction. Further, any attempt to collect a verdict against 6 Johnson Roofing might result in an insurance coverage action. In recognition of the costs 7 of further litigation and the possibility ofan additional coverage lawsuit following a verdict, 8 the parties agree it makes economic sense to settle now for $2,500 and avoid further 9 litigation. 10 4. Financial Condition of Johnson Roofing 11 Greg Johnson dba Johnson Roofing Company was the contractor who performed 12 the work on the houses at issue. Greg Johnson dba Johnson Roofing Company is no 13 longer in business. Derek Johnson dba Johnson Roofing Company is the current sole 14 proprietor, but he did not perform any work on the houses. 15 5. Insurance Policy Limits 16 The insurance policy issued to Johnson Roofing has a $1M limit. 17 6. Existence of Collusion. Fraud or Tortuous Conduct 18 No collusion, fraud or tortuous conduct exists. Defense counsel understands Webb 19 Construction is in settlement discussions with plaintiff and with the other cross- 20 defendants. 21 III 22 III 23 III 24 III 25 III 26 III 27 III 28 /// 01 295062.WPD 5 NOTICE OF SETTLEMENT 1 IV. 2 CONCLUSION 3 Based on the foregoing, Webb Construction and Johnson Roofing respectfully 4 request the court approve the proposed order determining that their settlement is made 5 in good faith within the meaning of Code of Civil Procedure §877.6. 6 Dated: October 2S 2020 7 Schuering Zimmerman & OYLE, LLP 8 9 By KEITH D. CHIDLAW 10 Attorneys for Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 14) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01 295062.YVPD 6 NOTICE OF SETTLEMENT 1 KEITH D. CHIDLAW, Bar No. 133604 Schuering Zimmerman & Doyle, llp 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 14) 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 JAYSON SCOUBES, et al., NO. 18CV02673 11 Plaintiffs, DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION 12 vs. OF GOOD FAITH SETTLEMENT 13 BILL WEBB CONSTRUCTION; M B D INC., et al., 14 Defendants. HONORABLE ROBERT A. GLUSMAN 15 JUDGE FOR ALL PURPOSES 16 BILL WEBB CONSTRUCTION, INC., COMPLAINT FILED: 8/16/18 17 Cross-Complainant, 18 vs. 19 ROES 1-1000, INCLUSIVE, 20 Cross-Defendants. 21 22 I,Keith D. Chidlaw, declare: 23 1. I am an attorney at law duly licensed to practice before all courts of the State 24 of California. I am the attorney of record for Cross-Defendant JOHNSON ROOFING 25 COMPANY (sued as Roe 14). 26 2. I have personal knowledge of the matters set forth herein, and if called upon 27 to testify upon the matters set forth herein, I could and would do so competently. 28 3. This lawsuit arises out of a construction defect action brought by various 01 295072.WPD l DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT 1 owners of houses against the developer Bill Webb Construction. There were originally 2 1 6 houses at issue. Only three houses remain in the lawsuit. The owners of the other 13 3 houses voluntarily dismissed their Complaint. 4 Bill Webb Construction is the only defendant in the case. Bill Webb Construction 5 in turn cross-complained against various subcontractors involved in the construction of 6 the houses including Johnson Roofing. 7 The remaining plaintiffs contend the roof sheathing is defective and thus the roof 8 is compromised potentially leading to water intrusion. Plaintiffs have set forth a cost of 9 repair to remove the tiles from the roof, fix the roof sheathing, and replace the tiles. 10 Plaintiffs' contentions concerning the roofs and Johnson Roofing are flawed. First, 11 Johnson Roofing did not install the roof sheathing. That was done by others. Secondly, 12 the roofing material is composition shingles, not tiles. 13 Johnson Roofing believes the full value of any roof repairs on the three remaining 14 houses is $1,000 per house. 15 Johnson Roofing is paying $2,500. 16 Johnson Roofing is aware of the costs of defending this case through trial. It is 17 estimated that attorneys' fees and costs through trial would exceed $25,000. The same 18 holds true for Webb Construction. Further, any attempt to collect a verdict against 19 Johnson Roofing might result in an insurance coverage action. In recognition of the costs 20 of further litigation and the possibility of an additional coverage lawsuit following a verdict, 21 the parties agree it makes economic sense to settle now for $2,500 and avoid further 22 litigation. 23 Greg Johnson dba Johnson Roofing Company was the contractor who performed 24 the work on the houses at issue. Greg Johnson dba Johnson Roofing Company is no 25 longer in business. Derek Johnson dba Johnson Roofing Company is the current sole 26 proprietor, but he did not perform any work on the houses. 27 The insurance policy issued to Johnson Roofing has a $1M limit. 28 III 01295072.WPD 2 DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT 1 No collusion, fraud or tortuous conduct exists. Defense counsel understands Webb 2 Construction is in settlement discussions with plaintiff and with the other cross- 3 defendants. 4 I declare under penalty of perjury under the laws of the State of California that the 5 foregoing is true and correct. 6 Executed this ^ ""day of \y<-f 2020, at Sacramento. California. 7 8 KEITH D. CHIDLAW 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01 295072. WPD 3 DECLARATION IN SUPPORT OF APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT 1 KEITH D. CHIDLAW, Bar No. 133604 Schuering Zimmerman & Doyle, llp 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 1 4) 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 JAYSON SCOUBES, et al., NO. 18CV02673 11 Plaintiffs, [PROPOSED] ORDER GRANTING APPLICATION FOR DETERMINATION 12 vs. OF GOOD FAITH SETTLEMENT 13 BILL WEBB CONSTRUCTION; M B D INC., et al., 14 Defendants. HONORABLE ROBERT A. GLUSMAN 15 JUDGE FOR ALL PURPOSES 16 BILL WEBB CONSTRUCTION, INC., COMPLAINT FILED: 8/16/18 17 Cross-Complainant, 18 vs. 19 ROES 1-1000, INCLUSIVE, 20 Cross-Defendants. 21 22 The Application of Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 23 14) for an order determining the settlement between Webb Construction and Johnson 24 Roofing to be in good faith, having been presented to this Court; and, 25 There being no motion to contest the good faith of the settlement, it appearing to 26 the satisfaction of the Court that said Application is made pursuant to Code of Civil 27 Procedure §877.6(a)(2), and good cause having been shown, 28 /// 01 295074.WPD l [PROPOSED] ORDER GRANTING APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT 1 IT IS HEREBY ORDERED that Cross-Defendant JOHNSON ROOFING COMPANY'S 2 (sued as Roe 14) Application for Determination of Good Faith Settlement is granted. 3 DATED: 4 JUDGE OF THE SUPERIOR COURT 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01 295074.WPD 2 [PROPOSED] ORDER GRANTING APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT 1 KEITH D. CHIDLAW, Bar No. 133604 Schuering Zimmerman & Doyle, llp 2 400 University Avenue Sacramento, California 95825-6502 3 (916) 567-0400 FAX: 568-0400 4 5 Attorneys for Cross-Defendant JOHNSON ROOFING COMPANY (sued as Roe 14) 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 9 10 JAYSON SCOUBES, et al. NO. 18CV02673 11 Plaintiffs, PROOF OF SERVICE 12 vs. 13 BILL WEBB CONSTRUCTION; M B D INC., HONORABLE ROBERTA. GLUSMAN et al., JUDGE FOR ALL PURPOSES 14 Defendants. 15 COMPLAINT FILED: 8/16/18 16 BILL WEBB CONSTRUCTION, INC., 17 Cross-Complainant, 18 vs. 19 ROES 1-1000, INCLUSIVE, 20 Cross-Defendants. 21 22 23 Proof of Service bv Mail - Civil 24 [Code of Civ. Proc. §§ 1011, 1013, 1013a, 2015.5, CRC 10.503, 2.100-2.119] 25 I,Pam Gartman, declare: 26 At the time of service, I was over 1 8 years of age and not a party to this action. 27 My business address is: 400 University Avenue, Sacramento, California 95825. 28 /// 1 On October 28, 2020, 1 served the following documents: 2 1. Notice of Settlement and Application for Determination of Good Faith 3 Settlement Pursuant to C.C.P. § 877.6(a)(2); Memorandum of Points and 4 Authorities In Support Thereof; 5 2. Declaration In Support of Application for Determination of Good Faith 6 Settlement; and 7 3. [Proposed] Order Granting Application for Determination of Good Faith 8 Settlement. 9 By United States mail: I enclosed the documents in a sealed envelope or package 10 addressed to the persons at the addresses given below and placed the envelope for 11 collection and mailing, following our ordinary business practices. I am readily familiar 12 with this business' practice for collecting and processing correspondence for mailing. On 13 the same day that correspondence is placed for collection and mailing, it is deposited in 14 the ordinary course of business with the United States Postal Service, in a sealed 15 envelope, via certified mail, return receipt requested, with postage fully prepaid. I am 16 a resident or employed in the county where the mailing occurred. The envelope or 17 package was placed in the mail at Sacramento, California. 18 I served the documents on the persons addressed as follows: 19 Attorney Representing Phone/Fax/E-Mail 20 Joseph Su Plaintiff (310} 396-9600 - PHONE 21 MILSTEIN JACKSON (310) 396-9635 FAIRCHILD & WADE, LLP jsu@mjfwlaw.com 22 10250 Constellation Blvd., 14th Floor 23 Los Angeles, CA 90067 24 Julie D. McElroy Cross-Defendant NORTH (916) 971-4100 -PHONE 25 Jennifer H. Carroll STATE PLUMBING, INC. (916) 971-4150 -FAX JACOBSEN & MCELROY jmcelrov@jacobsenmcelr 26 PC ov.com 2401 American River Dr., jcarroll@iacobsenmcelrov 27 Ste. 100 .com Sacramento, CA 95825 28 7086 1 2 Attorney Representing Phone/Fax/E-Mail 3 Scott D. Cote Cross-Defendant (916) 565-6222 - PHONE DIEPENBROCK & HIGHTOWER MASONRY, (916) 565-6220 - FAX 4 COTTER, LLC INC. sdc@diepenbrockcotter.c 1545 River Park Dr., Ste. om 5 201 Sacramento, CA95815- 6 4613 7 Jennifer S. Willis Cross-Defendant DEFCON (916) 283-2678 - PHONE 8 LAW OFFICE OF SHAWN 1 SECURITY SYSTEM (855) 214-7884 -FAX C. MOORE willj86@nationwide.com 9 2251 Harvard St., Ste. 100 Sacramento, CA 95815- 10 3333 11 Edward R. Huguenin Defendant and Cross- (9161 367-7098 - PHONE HUGUENIN KAHN LLP Complainant BILL WEBB (916) 367-7491 - FAX 12 ehuguenin@hugueninkah 3001 Lava Ridge Court, CONSTRUCTION, INC. Ste. 300 n.com 13 Roseville, CA 95661 14 Jacob Koper Cross-Defendant (9 16) 638-6610 - PHONE 15 LAW OFFICES OF JOHN FRANKLIN (855) 631-5920 -FAX A. BIARD CONSTRUCTION, INC. jkoper@travelers.com 16 P. O. Box 64093 St. Paul, MN 55164-0093 17 18 David A. Harris Cross-Defendants (415) 777-1308 -PHONE SANTANA VIERRA FRANKLIN (415) 896-6063 - FAX 19 255 California Street, Ste. CONSTRUCTION, INC. david.harrisOl @libertymut 900 And DOOR SYSTEM ual.com 20 San Francisco, CA 941 1 1 DESIGN, INC. 21 Deborah A. Correll Cross-Defendants JOHN (916) 630-3803 - PHONE 22 LAW OFFICE OF PATRICK DAVID WILLIAMS dba J. (916) 630-3848 - FAX J. CAMPBELL WILLIAMS BACKHOE dcorrell@unitedfiregroup. 23 3880 Atherton Road SERVICE, CHARLES S. com Rocklin,CA 95765-3700 CRABTREE PAINTING, 24 INC, MILLER GLASS, INC. 25 Namvar Mokri Cross-Defendant OAK (949) 226-7040 - PHONE Richard LeVu RIDGE CABINETS, INC. (949) 226-7150 -FAX 26 MOKRI VANIS & JONES nmokri@mvillp.com LLP rlevu@mvjllp.com 27 4100 Newport Place Drive, 28 Ste. 840 Newport Beach, CA 92660 1 2 Attorney Representing Phone/Fax/E-Mail 3 Chad S. Tapp Cross-Defendant RCM (916) 929-1481 - PHONE Joceline M. Herman ELECTRIC (916) 927-3708 - FAX 4 Porter Scott 350 University Ave., Ste. 5 200 Sacramento, CA 95825 6 7 Karen T. Wagner Cross-Defendant (7751 440-2389 - PHONE Bremer Whyte Brown & MCCLELLAND AIR (775) 440-2390 - FAX 8 O'Meara, LLP CONDITIONING, INC. kwag ne rObremerwhvte . c 50 W. Liberty St., Ste. 1030 om 9 Reno, NV 89501 10 Jordan A. Rodman Cross-Defendant BUTTE (707) 278-9878 - PHONE Megan W. Wendell CREEK STONE (707) 278-9880 - FAX 11 Rodman & Associates jrodman@rodman-law.co 149 Stony Circle, Ste. 210 m 12 Santa Rosa, CA 95401 mwendell@rodman-law.c om 13 14 Kenneth O. Taylor Cross-Defendant MILLER (714) 709-4384 - PHONE Resnick & Louis, P.C. GLASS, INC. (714) 709-4384 -FAX 15 9891 Irvine Center Dr., Ste. ktavlor@rlattornevs.com _ ~ 200 j 16 Irvine, CA 92618 17 Robert Bellagamba SPECIAL MASTER 925) 552-1207 -DIRECT 18 CASTLE, DEKKER & 925) 552-1200 -OFFICE BELLAGAMBA 925) 552-1201 - FAX 19 30 Oak Court rbellagamba@dekkerlaw. Danville, CA 94526 com " 20 21 U.S. LEGAL SUPPORT DOCUMENT DEPOSITORY 2710 Gateway Oaks Drive, 22 Ste. 300 Sacramento, CA 95833 23 24 I declare under penalty of perjury, under the laws of the State of California, that the 25 foregoing is true and correct, and that this declaration was executed on October 28, 2020, 26 at Sacramento, California. 27 28 Pam Gartman 2004-12039 U.S. Postal Service™ U.S. Postal Service™ CERTIFIED MAIL RECEIPT rr.i CERTIFIED (Domestic Mail Only; No Insurance Coverage Provided) MAIL TNIRECEIPT m m (Domestic Mall Only; No Insurance Coverage Provided) m zr Fordelivery information visit our website at www.usps.come m For delivery information visit our website at www.usps.coma rR zr OFFICIAL US E OFFICIAL USE LT) Postage$ rR rR i~n Postage $ r-R Certified Fee 2*0 rR >6 Certilied Fee O Return Receipt Fee Postmark rR Postmark (Endorsement Required) Here Return Receipt Fee Here r~i (Endorsement Required) Restricted Delivery Fee !—,(Endorsement Required) Restricted Delivery Fee (Endorsement Required) fU Total Postage & Fees $ r-R ru Total Postage & Fees $ sent rR zr Sefnt rR zr "im;# rR r- or City' Sjjfe'zfP+4 ' 7j ^ jcDuzr- P- or PO Box No. < / /-C. PS Form 3800, August 2006 . c* faoQ r See Reverse for Instructions fsfsr* PS Form 3800. August 2006 See Reverse for Instructions U.S. Postal Service™ U.S. Postal Service TM CERTIFIED MAIL ™ RECEIPT CERTIFIED MAIL ™ RECEIPT (Domestic Mail Only; No Insurance Coverage Provided) r- ui (Domestic Mail Only; No Insurance Coverage Provided) J3 m For delivery information visit our web