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

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                                1    Kathleen Q. Brown (SBN 186148)
                  LAW OFFICES OF JOHN A. BIARD                                                    E-FILED
             2    P.O. Box 64093                                                                  10/6/2020 1:25 PM
                  St. Paul, MN 55164-0093                                                         Superior Court of California
             3    Physical Address: 11070 White Rock Road, Suite 200                              County of Fresno
                  Rancho Cordova, CA         95670                                                By: A. Ramos, Deputy
             4    Telephone:        916-638-6610
                  Facsimile:        855-631-5920
             5    E-Mail:           kqbrown@travelers.com
             6    Attorneys for Cross-Defendant
             7    QUALITY CARPETS DESIGN CENTER

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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
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                  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       QUALITY        CARPETS       DESIGN      CENTER
           27     applies to this Court for a determination that their settlement with Plaintiff-HOMEOWNERS was made
           28     in good 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
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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT
             1    against Cross-Defendant QUALITY CARPETS DESIGN CENTER based upon equitable contribution
             2    or partial 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 QUALITY CARPETS DESIGN CENTER alleging

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

           17     Insurance; (2) Equitable Indemnity; (3) Contribution and Repayment; (4) Declaratory Relief

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

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

           20     Contribution and Apportionment of Fault.            As of this filing, QUALITY CARPETS DESIGN CENTER

           21     has not been named in that Cross-Complaint.             (See, Declaration of Kathleen Q. Brown, ¶4.)

           22              Cross-Defendant QUALITY CARPETS DESIGN CENTER contends that it performed its work

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

           24     alleged damages were caused by its work.            Cross-Defendant QUALITY CARPETS DESIGN CENTER
                  merely supplied window coverings for the homes.               (See, Declaration of Kathleen Q. Brown, ¶5.)           After
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                  negotiations, Travelers Insurance Company, on behalf of Cross-Defendant QUALITY CARPETS
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                  DESIGN CENTER negotiated a settlement with the HOMEOWNERS.                             The settlement includes a
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                  release of 5198 FOWLER, L.P. for Cross-Defendant QUALITY CARPETS DESIGN CENTER’s
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                  scope of work at the 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 QUALITY CARPETS DESIGN
             3    CENTER.       (See, Declaration of Kathleen Q. Brown, ¶7.)
             4                                            TERMS OF THE SETTLEMENT
             5             Travelers Insurance Company and other insurers, on behalf of Cross-Defendant QUALITY

             6    CARPETS DESIGN CENTER will pay HOMEOWNERS a total of $3,000.00 in exchange for a release

             7    of all claims by HOMEOWNERS arising out of Cross-Defendant QUALITY CARPETS DESIGN

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

             9    bear its own costs of litigation, including attorneys’ fees.          Cross-Defendant QUALITY CARPETS

           10     DESIGN CENTER is not admitting liability.              (See, Declaration of Kathleen Q. Brown, ¶6.)            The

           11     settlement is subject 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 QUALITY

           14     CARPETS DESIGN CENTER 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 QUALITY CARPETS DESIGN CENTER requests:

           18              The Settlement Between HOMEOWNERS and Cross-Defendant QUALITY CARPETS
                           DESIGN CENTER 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 QUALITY CARPETS DESIGN CENTER
           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 $3,000 on behalf of Cross-Defendant QUALITY CARPETS

           27     DESIGN CENTER 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 QUALITY CARPETS DESIGN CENTER is a peripheral
             2    party with minimal potential liability.
             3               Cross-Defendant QUALITY CARPETS DESIGN CENTER’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

             7    QUALITY CARPETS DESIGN CENTER as being made in good faith because said settlement adhered

             8    to both the 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         QUALITY         CARPETS          DESIGN       CENTER         for   Equitable
           10              Comparative Contribution, or Partial or Comparative Indemnity, Based on Comparative
                           Negligence or Comparative Fault.
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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 QUALITY CARPETS DESIGN CENTER 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 QUALITY CARPETS DESIGN CENTER was reached in
           21     good faith, Section 877.6(c) applies to any and all present and future claims by other joint tortfeasors or
           22     co-obligors against Cross-Defendant QUALITY CARPETS DESIGN CENTER for equitable
           23     comparative contribution or partial or comparative indemnity based on comparative negligence or
           24     comparative fault.
           25     ///
           26     ///
           27     ///
           28     ///
                  ///
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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT
             1                                                        CONCLUSION
             2             Cross-Defendant QUALITY CARPETS DESIGN CENTER respectfully submits this
             3    Application under California Code of Civil Procedure 877.6(a)(2) for determination of good faith
             4    settlement.
             5
                                                                        LAW OFFICES OF JOHN A. BIARD
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             8    Dated: October 5, 2020
             9                                                          Kathleen Q. Brown
                                                                        Counsel for Cross-Defendant
           10                                                           QUALITY CARPETS DESIGN CENTER
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                                                     APPLICATION FOR GOOD FAITH SETTLEMENT