Request,Application: Zaida Pacheco vs. 5198 Fowler, LP / COMPLEX

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                                E-FILED
             1    Kathleen Q. Brown (SBN 186148)                                                      10/6/2020 12:14 PM
                  LAW OFFICES OF JOHN A. BIARD
             2                                                                                        Superior Court of California
                  P.O. Box 64093
                  St. Paul, MN 55164-0093                                                             County of Fresno
             3    Physical Address: 11070 White Rock Road, Suite 200                                  By: A. Ramos, Deputy
                  Rancho Cordova, CA         95670
             4    Telephone:        916-638-6610
                  Facsimile:        855-631-5920
             5    E-Mail:           kqbrown@travelers.com
             6    Attorneys for Cross-Defendant
             7    BAKER CUSTOM CABINETS, INC.

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                                                        SUPERIOR COURT OF CALIFORNIA
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                                                                  COUNTY OF FRESNO
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                  ZAIDA PACHECO; et al.,                                        Case No.:      19CECG01330
           12                                                                   Assigned to Judge Rosemary T. McGuire, Dept. 403
                                    Plaintiffs,
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                  v.
           14                                                                   APPLICATION FOR GOOD FAITH
                  5198 FOWLER, LP, A CALIFORNIA LIMITED                         SETTLEMENT
           15     PARTNERSHIP, et al.,
           16                       Defendants.
           17     5198 FOWLER, L.P.,
           18                                                                   Complaint Filed:    4/18/2019 / XC Filed: 10/17/2019
                                    Cross – Complainant,                        Trial Date:   TBA
           19
                  v.
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                  84 LUMBER COMPANY; et al, and ROES 1-
           21     600;

           22                       Cross – Defendants.
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                  AND RELATED CROSS-ACTIONS.
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           25     TO THE COURT, TO ALL PARTIES, AND TO THEIR COUNSEL OF RECORD:
           26              PLEASE TAKE NOTICE that Cross-Defendant BAKER CUSTOM CABINETS, INC. applies
           27     to this Court for a determination that their settlement with Plaintiff-HOMEOWNERS was made in good
           28     faith within the meaning of California Code of Civil Procedure Sections 877 and 877.6(a)(2), and for the
                  issuance of an Order declaring that this good faith settlement bars all present and future claims against
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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT
             1    Cross-Defendant       BAKER      CUSTOM        CABINETS,       INC.   based   upon   equitable    contribution    or partial
             2    comparative indemnity.
             3             A Notice of Settlement, Declaration, and [Proposed] Order are filed concurrently herewith and
             4    have been sent by certified-mail, return-receipt requested, on the date of the Notice, too all parties in this
             5    action.

             6                                               STATEMENT OF THE CASE

             7             5198 FOWLER, L.P. caused to be built in Fowler, California, a residential community, which is

             8    the subject of this lawsuit, consisting of residential homes (hereinafter “the PROJECT”).                   (See,

             9    Declaration of Kathleen Q. Brown, at ¶3.)

           10              On or about June 27, 2019, the owners (hereinafter “HOMEOWNERS”) of 15 of the subject

           11     homes in the above-referenced PROJECT filed the First Amended Complaint against 5198 FOWLER,

           12     L.P. pursuant to California Code Section 896 et seq., alleging that the subject homes contain

           13     construction deficiencies, which have caused property damage.                In response, on or about October 17,

           14     2019, 5198 FOWLER, L.P. filed its Cross-Complaint and later a ROE AMENDMENT against

           15     numerous parties, including Cross-Defendant BAKER CUSTOM CABINETS, INC. alleging multiple

           16     causes of action for: (1) Breach of Written Contract to Indemnify, Defend, and Obtain Insurance; (2)

           17     Equitable Indemnity; (3) Contribution and Repayment; (4) Declaratory Relief (Subcontractor

           18     Defendants); (5) Declaratory Relief re: Insurance. On May 29, 2020, Cross-Defendant Fresno

           19     Distributing Co. filed a Cross-Complaint against Roes 1-10 alleging Equitable Indemnity, Contribution

           20     and Apportionment of Fault.         As of this filing, BAKER CUSTOM CABINETS, INC. has not been

           21     named in that Cross-Complaint.          (See, Declaration of Kathleen Q. Brown, ¶4.)

           22              Cross-Defendant BAKER CUSTOM CABINETS, INC. contends that it performed its work in a

           23     good, workman-like manner and in compliance with the applicable standard of care and that no alleged

           24     damages were caused by its work.          Cross-Defendant BAKER CUSTOM CABINETS, INC. merely
                  supplied cabinets for the homes.        (See, Declaration of Kathleen Q. Brown, ¶5.)            After negotiations,
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                  Travelers Insurance Company, on behalf of Cross-Defendant BAKER CUSTOM CABINETS, INC.
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                  negotiated a settlement with the HOMEOWNERS.                   The settlement includes a release of 5198
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                  FOWLER, L.P. for Cross-Defendant BAKER CUSTOM CABINETS, INC.’s scope of work at the
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                  PROJECT.       (See, Declaration of Kathleen Q. Brown, ¶6.)

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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT
             1                                                    SETTLING PARTIES
             2             The settling parties are HOMEOWNERS and Cross-Defendant BAKER CUSTOM
             3    CABINETS, INC.          (See, Declaration of Kathleen Q. Brown, ¶7.)
             4                                            TERMS OF THE SETTLEMENT
             5             Travelers Insurance Company and other insurers, on behalf of Cross-Defendant BAKER

             6    CUSTOM CABINETS, INC. will pay HOMEOWNERS a total of $5,000.00 in exchange for a release

             7    of all claims by HOMEOWNERS arising out of Cross-Defendant BAKER CUSTOM CABINETS,

             8    INC.’s involvement with the subject homes involved this action.                Each of the settling parties will bear

             9    its own costs of litigation, including attorneys’ fees.         Cross-Defendant BAKER CUSTOM CABINETS,

           10     INC. is not admitting liability.      (See, Declaration of Kathleen Q. Brown, ¶6.)            The settlement is subject

           11     to a good faith settlement determination by this Court.

           12                                                  AFFECTED PLEADINGS

           13              Any and all complaints and cross-complaints filed by and against Cross-Defendant BAKER

           14     CUSTOM CABINETS, INC. will be affected by this Application.                      Specifically, the Cross-Complaints

           15     filed by 5198 FOWLER, L.P. and FRESNO DISTRIBUTING CO.

           16                                                         APPLICATION

           17              By this Application, Cross-Defendant BAKER CUSTOM CABINETS, INC. requests:

           18              The Settlement Between HOMEOWNERS and Cross-Defendant BAKER CUSTOM
                           CABINETS, INC. Should be Deemed to be in Good Faith
           19
           20              Pursuant to California Code of Civil Procedure Section 877.6 and the common                     law
           21     requirements of Tech-Bilt, Inc. v. Woodward Clyde & Associates, (1985) 38 Cal.3d 488, the settlement
           22     that was reached by HOMEOWNERS and Cross-Defendant BAKER CUSTOM CABINETS, INC.
           23     should be deemed to be in good faith.
           24              This settlement was reached as the result of a bargaining process with no intention to tortuously
           25     injure any of the parties of this lawsuit.       (See, Declaration of Kathleen Q. Brown, ¶7.)           Travelers

           26     Insurance Company’s agreement to pay $5,000 on behalf of Cross-Defendant BAKER CUSTOM

           27     CABINETS, INC. to settle this case was based in part on the “nuisance value” of settling the case

           28     before more in-depth discovery was propounded and before the costs associated with expert discovery


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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT
             1    was incurred.     Moreover, Cross-Defendant BAKER CUSTOM CABINETS, INC. is a peripheral party
             2    with minimal potential liability.
             3               Cross-Defendant BAKER CUSTOM CABINETS, INC.’s settlement will have little or no
             4    impact on the remaining parties.        The settlement is within the ballpark.        No fraud or other misconduct is
             5    behind the settlement.      (See, Declaration of Kathleen Q. Brown, ¶7.)

             6             The Court should deem the settlement between HOMEOWNERS and Cross-Defendant BAKER

             7    CUSTOM CABINETS, INC. as being made in good faith because said settlement adhered to both the

             8    Tech-Bilt factors and the statutory requirements under Civil Code Section 877.6.

             9             The Settlement Bar Any Other Joint Tortfeasor or Co-Obligor From Any Further Claims
                           Against Cross-Defendant BAKER CUSTOM CABINETS, INC. for Equitable Comparative
           10              Contribution, or Partial or Comparative Indemnity, Based on Comparative Negligence or
                           Comparative Fault.
           11
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                           As stated in California Code of Civil Procedure Section 877.6(c), all present and future cross-
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                  complaints for equitable comparative contribution or partial or comparative indemnity based on
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                  comparative negligence or comparative fault and/or implied contractual indemnity against Cross-
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                  Defendant BAKER CUSTOM CABINETS, INC. in connection with this action should be forever
           16     barred.
           17              California Code of Civil Procedure Section 877.6 is not discretionary in nature.                 The statute
           18     requires that a finding that a settlement was reached in good faith bars any other joint tortfeasor or co-
           19     obligor from any further claims against the settling tortfeasor.            As the settlement between
           20     HOMEOWNERS and Cross-Defendant BAKER CUSTOM CABINETS, INC. was reached in good
           21     faith, Section 877.6(c) applies to any and all present and future claims by other joint tortfeasors or co-
           22     obligors against Cross-Defendant BAKER CUSTOM CABINETS, INC. for equitable comparative
           23     contribution or partial or comparative indemnity based on comparative negligence or comparative fault.
           24     ///
           25     ///
           26     ///
           27     ///
           28     ///
                  ///
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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT
             1                                                        CONCLUSION
             2             Cross-Defendant BAKER CUSTOM CABINETS, INC. respectfully submits this Application
             3    under California Code of Civil Procedure 877.6(a)(2) for determination of good faith settlement.
             4
                                                                        LAW OFFICES OF JOHN A. BIARD
             5
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             7    Dated: October 5, 2020
             8                                                          Kathleen Q. Brown
                                                                        Counsel for Cross-Defendant
             9                                                          BAKER CUSTOM CABINETS, INC.
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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT