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1 BARRY VOGEL, STATE BAR NO. 108640
Bvogel@ljdfa.com
2 SCOTT W. FOLEY, STATE BAR NO. 278357
SFoley@ljdfa.com 3/24/2021
3 LA FOLLETTE, JOHNSON,
DeHAAS, FESLER & AMES
4 655 University Avenue, Suite 119
Sacramento, California 95825-6746
5 Telephone (916) 563-3100 • Facsimile (916) 565-3704
6 Attorneys for Defendant/Cross-Complainant/Cross-Defendant
ENLOE MEDICAL CENTER
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF BUTTE
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
10
11 HANNELORE CURREY; and KEVIN CASE NO.: 17 CV 00919
CURREY,
12 DEFENDANT AND CROSS-COMPLAINANT
Plaintiffs, ENLOE MEDICAL CENTER'S OPPOSITION
13 TO DEFENDANT AND CROSS-DEFENDANT
vs. RSC ASSOCIATES, INC.'S MOTION FOR
14 GOOD FAITH SETTLEMENT
ENLOE MEDICAL CENTER; and DOES 1
15 through 20, inclusive, DATE: April 7, 2021
TIME: 9:00 A.M.
16 Defendants. LOCATION: Department 1
17 TRIAL DATE: None Set
AND ALL RELATED ACTIONS. ACTION FILED: 03/30/17
18
19
20 I. INTRODUCTION
21 RSC Associates, Inc. (“RSC”) seeks an order from this court determining that its settlement with
22 plaintiffs was made in good faith. The good faith standard established by statute and case law seeks to
23 achieve two goals: fair apportionment of loss and encouragement of settlement. RSC’s settlement does
24 not achieve either goal.
25 Enloe Medical Center (“Enloe”) settled the case with plaintiffs (Hannelore Currey and Kevin
26 Currey) at mediation and plaintiffs indicated they would dismiss their entire complaint after they received
27 the settlement funds. Enloe then attempted to convince RSC to contribute toward that settlement, but
28 RSC would not. Later, after Enloe filed a motion for leave to file a first amended cross-complaint against
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1 RSC to add a breach of action cause of action, RSC decided to settle with plaintiffs directly rather than
2 contact Enloe and contribute toward Enloe’s settlement. This suggests RSC’s motive for settling with
3 plaintiffs was to cut off Enloe’s claims against RSC for indemnity and contribution. The Court should
4 therefore deny RSC’s motion for good faith settlement.
5 II. STATEMENT OF RELEVANT FACTS
6 On November 12, 2020, Enloe settled with plaintiffs for $100,000 and it was Enloe’s
7 understanding that plaintiffs would dismiss the entire case after they received the settlement funds.
8 (Foley Decl., ¶ 3.) RSC’s attorneys indicated at mediation that they had no authority to settle the case
9 and only had authority to negotiate on RSC’s claim for attorney’s fees and costs. (Ibid.) For the next
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10 three months, Enloe continued negotiating (or attempting to negotiate) with RSC in an effort to get RSC
11 to contribute to the settlement and/or waive its claim to attorney’s fees and costs. Those negotiations
12 included Enloe’s attorneys speaking to RSC’s attorneys, Enloe representatives speaking to RSC
13 representatives, and the mediator speaking to RSC’s attorneys. (Id. at ¶¶ 4-11.)
14 On February 10, 2021, Enloe filed a motion for leave to file a first amended cross-complaint
15 against RSC to add a cause of action for breach of contract. (Foley Decl., ¶ 12.) On March 2, 2021, RSC
16 served a Mandatory Settlement Conference Statement and indicated it had “settled with the Plaintiff for
17 $25,000 contingent on a Motion for Good Faith Settlement. RSC will be seeking to be reimbursed for
18 this settlement along with the fees that the Court has already ruled that Enloe owes RSC.” (Id. at ¶ 13.)
19 RSC has a $2 million insurance policy. (Id. at ¶ 16.)
20 On March 10, 2021, the parties attended a Mandatory Settlement Conference. (Foley Decl., ¶
21 14.) RSC demanded that Enloe reimburse them for their entire claim to attorney’s fees and costs. (Ibid.)
22 Enloe offered some money to RSC, but RSC refused to come down from their demand and simply refused
23 to provide a counteroffer, at which point the settlement conference concluded. (Ibid.)
24 III. ARGUMENT
25 A. The Court Should Deny RSC’s Motion for Good Faith Settlement Because the
Settlement Between Plaintiffs and RSC Was Made in Bad Faith.
26
27 RSC would not contribute to a global settlement at or after mediation in November 2020, which
28 would have more evenly and fairly allocated costs between Enloe and RSC, and indicated it would only
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1 negotiate its claim for attorney’s fees and costs. Later, after Enloe moved to amend its cross-complaint,
2 RSC decided to settle with plaintiffs directly. The settlement is contingent upon an order granting this
3 motion for determination of good faith settlement, and RSC has expressed its intention to seek
4 reimbursement from Enloe for the money it agreed to pay plaintiffs in settlement. If RSC was negotiating
5 in good faith, it would have contributed to the global settlement rather than settle with plaintiffs for an
6 additional sum that it intends to recover from Enloe. RSC’s conduct demonstrates a bad faith settlement
7 aimed at injuring Enloe, so the Court should deny RSC’s motion for determination of good faith
8 settlement.
9 If a settlement “is given in good faith . . . to one or more of a number of tortfeasors claimed to be
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10 liable for the same tort . . . it shall . . . discharge the party to whom it is given from all liability for any
11 contribution to any other parties.” (Code of Civ. Proc., § 877, subd. (a).) In addition, “[a] determination
12 by the court that the settlement was made in good faith shall bar any other joint tortfeasor . . . from any
13 further claims against the settling tortfeasor . . . for equitable comparative contribution, or partial or
14 comparative indemnity, based on comparative negligence or comparative fault.” (Code of Civ. Proc., §
15 877.6, subd. (c).) When faced with a motion for good faith settlement under Code of Civil Procedure
16 Section 877.6, trial courts should consider the following factors and principles before deciding whether
17 to issue an order finding the settlement was made in good faith:
18 • “a rough approximation of plaintiffs’ total recovery”;
19 • “a rough approximation of . . . the settlor’s proportionate liability”;
20 • “the amount paid in settlement”;
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• “the allocation of settlement proceeds among plaintiffs”;
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• “a settlor should pay less in settlement than he would if he were found liable
23 after a trial”;
24 • “the financial conditions . . . of settling defendants”;
25 • “insurance policy limits of settling defendants”;
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• “the existence of collusion, fraud, or tortious conduct aimed to injure the
27 interests of nonsettling defendants”; and
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• the “settlement figure must not be grossly disproportionate to what a reasonable
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person, at the time of the settlement, would estimate the settling defendant’s
2 liability to be”.
3 (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499; Toyota Motor Sales U.S.A.,
4 Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871 [“one of the most important [Tech-Bilt factors] .
5 . . is the settling party’s proportionate liability”].) However, “‘[l]ack of good faith encompasses many
6 kinds of behavior. It may characterize one or both sides to a settlement. When profit is involved, the
7 ingenuity of man spawns limitless varieties of unfairness. Thus, formulation of a precise definition of
8 good faith is neither possible nor practicable.’” (Id. at pp. 494-495, quoting River Garden Farms, Inc. v.
9 Superior Court (1972) 26 Cal.App.3d 986, 997.) “‘When testing the good faith of a settlement figure, a
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10 court may enlist the guidance of the judge’s personal experience . . .’” (Id. at p. 500, quoting River
11 Garden Farms, supra, 26 Cal.App.3d at p. 998.)
12 Trial courts should also consider fairness when determining whether a settlement was made in
13 good faith. “‘The danger that a low settlement violates the good faith clause will not impart uncertainty
14 so long as the parties behave fairly and the courts maintain a realistic awareness of the settlement
15 imponderables.’” (Tech-Bilt, supra, 38 Cal.3d at p. 500, quoting River Garden Farms, supra, 26
16 Cal.App.3d at p. 998 [emphasis added].) The Tech-Bilt factors came in response to the Supreme Court’s
17 rejection of a line of California appellate cases that “had indicated that settling parties were free to further
18 their respective interests without regard to the effect of their settlement upon other defendants.” (Abbott
19 Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 873, citing Tech-Bilt, supra, 38 Cal.3d at p. 499.)
20 The good faith standard established by statute and by Tech-Bilt seeks to achieve two goals: “fair
21 apportionment of loss and encouragement of settlement.” (Abbott Ford, supra, 43 Cal.3d 858, 875; see
22 also Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1348-1349 [“This legislation
23 [sections 877 and 877.6] has two objectives: equitable sharing of costs among the parties at fault and
24 encouragement of settlements”].) A party opposing a motion for determination of good faith settlement
25 has the burden of proof and “should be permitted to demonstrate, if he can, that the settlement is so far
26 ‘out of the ballpark’ in relation to these [Tech-Bilt] factors as to be inconsistent with the equitable
27 objectives of the statute.” (Tech-Bilt, supra, 38 Cal.3d at pp.499-500.) Whether a “settlement amount
28 was ‘within the ballpark’ of reasonable settlement amounts” “cannot be determined without” first making
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1 “a rough approximation of the total amount the plaintiff is likely to recover” and then determining “what,
2 if any, the settling defendant’s proportionate share of that total recovery would be.” (Cahill v. San Diego
3 Gas & Electric Co. (2011) 194 Cal.App.4th 939, 966, fn 17.)
4 If a settling party moves for a determination of good faith settlement when a nonsettling party has
5 asserted an indemnity claim against it,“the settlor’s potential liability for indemnity” becomes “‘an
6 important consideration for the trial court in determining whether to approve a settlement.’” (Long Beach
7 Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 876, quoting TSI Seismic
8 Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.) “When a joint tortfeasor ‘enters
9 into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross-
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10 complaint, the inference that the settlement was not made in good faith is difficult to avoid.’” (Long
11 Beach, supra, 172 Cal.App.4th 865, 876, quoting Mattco Forge, supra, 38 Cal.App.4th at p. 1354
12 [emphasis added].) “If section 877.6 is to serve the ends of justice, it must prevent a party from
13 purchasing protection from its indemnification obligation at bargain-basement prices.” (Long Beach,
14 supra, 172 Cal.App.4th at p. 876.)
15 In Mattco Forge, a cross-defendant settled with the plaintiff even though the plaintiff had no
16 viable claim against it. (Mattco Forge, supra 38 Cal.App.4th at p. 1353.) The cross-defendant admitted
17 “their express reason for entering into the settlement with [the plaintiff] was to cut off [the cross-
18 complainant’s] cross-complaint against them for indemnity.” (Ibid.) In addition, the cross-defendant
19 settled for less than 1% of the plaintiff’s claimed damages and about 14% of its available policy limits.
20 (Id. at p. 1352.) Under these circumstances, the Mattco Forge court found the settlement, which was
21 made purely to cut off the cross-complainant’s ability to seek indemnification, “was not in good faith and
22 was aimed at injuring [the cross-complainant’s] interests.” (Id. at p. 1353.)
23 In Long Beach, the plaintiffs in a medical negligence case reached an $8 million settlement with
24 four defendants, including a hospital. (Long Beach, supra, 172 Cal.App.4th at p. 868.) The plaintiffs
25 had calculated their damages would exceed $10 million and made an $8 million demand for a global
26 settlement. (Id. at p. 870.) The settlement was put on the record in open court and, shortly thereafter, a
27 defendant physician and his employer (“the physicians”) settled with the plaintiffs for $200,000, which
28 equaled “less than 2 percent of the amount at issue and 10 percent of their insurance coverage.” (Id. at
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1 p. 868.) Hours after the $8 million settlement was put on the record, the hospital learned of the
2 physicians’ $200,000 settlement. (Id. at p. 871.) The trial court found the physicians’ settlement was
3 made in good faith, the hospital challenged the ruling by way of writ of mandate, and the appellate court
4 decided the trial court abused its discretion. (Id. at p. 868.) On appeal, the physicians argued their
5 settlement was not in bad faith merely because it was significantly lower than the other defendants’
6 settlement, “there was no evidence they colluded with plaintiffs,” the $200,000 settlement “was large
7 enough to encompass the allegations made against them,” and “they believed they would be successful
8 at trial because [they] had no liability.” (Id. at p. 871.) They further contended since they had no liability
9 exposure, “their offer was simply a nuisance value settlement where the $200,000 represented merely
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10 defense costs and expert fees for a four-week trial.” (Id. at p. 874.) The hospital argued “the settlement
11 was disproportionate and hence inadequate to bar the hospital’s contribution rights and that the
12 physicians’ attorney engaged in bad faith tactics to avoid paying $1.5 million towards the global
13 settlement as earlier discussed” by the parties after the plaintiffs served their $8 million demand. (Id. at
14 p. 872, 870-871.)
15 The Long Beach court said the physicians’ settlement was disproportionate to the plaintiffs’ claim
16 for damages and “[e]ven a slight probability of liability on [the physicians’] part would warrant a
17 contribution more significant than 2 percent.” (Long Beach, supra, 172 Cal.App.4th at p. 874.) Since an
18 expert testified during deposition that the physicians breached the standard of care, it was an abuse of
19 discretion for the trial court not “to consider the merits of the hospital’s evidence where the $200,000
20 amount the physicians paid bears no rational relationship to their proportionate share of liability for
21 plaintiffs’ damages.” (Ibid.) The appellate court also determined the physicians’ insurance policy limit
22 of $2 million militated against a good faith determination. What was most significant to the appellate
23 court was the physicians’ “potential liability for indemnity to the other alleged tortfeasors.” (Id. at p.
24 875.) “[T]he timing of the physicians’ offer [one day after the other defendants settled] suggests only
25 one result, namely, that the physicians’ reason for entering into the settlement with plaintiffs was to cut
26 off the hospital’s and [other settling defendant’s] right to indemnity from the physicians. Certainly, if
27 the timing were reversed and the physicians had made the first offer in settlement, they would not have
28 offered so little an amount as $200,000, and we doubt plaintiffs would have accepted such an offer had
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1 it been made first.” (Id. at pp. 875-876.) When the physicians settled, their “liability exposure to the
2 hospital for indemnity was far greater than their potential exposure to plaintiffs for negligence. The true
3 value in the settlement to the physicians, then, was not the dismissal of claims as to them, but rather the
4 dismissal of the indemnity claims of the hospital.” (Id. at p. 876 [emphasis in original].) “To immunize
5 the physicians from the indemnity claims of the hospital . . .under these circumstances, where [the
6 physician] was the sole physician responsible for the care of plaintiff during her labor and delivery, serves
7 neither the goal of encouraging settlement among all interested parties nor the goal of equitably
8 allocating costs among multiple tortfeasors.” (Ibid. [emphasis in original].) Finally, the appellate court
9 found, in the context of discussing the Tech-Bilt factor of “collusion, fraud, or tortious conduct aimed at
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10 injuring the interests of the joint tortfeasors,” that “the conclusion is inescapable that the physicians’ offer
11 was tactical and did not reflect the cooperative decisionmaking among all interested parties that is one of
12 the aims of settlements.” (Ibid.)
13 In the case at bar, RSC’s settlement serves neither the goal of encouraging settlement among all
14 interested parties nor the goal of equitably allocating costs among multiple tortfeasors. The inescapable
15 conclusion from the evidence is that RSC’s offer to settle was tactical and for the sole purpose to cut off
16 Enloe’s cross-complaint against it for indemnity. RSC’s settlement with plaintiffs accomplishes an unfair
17 apportionment of loss because it acts to increase Enloe’s loss. The court has decided, based on the current
18 pleadings, that Enloe must defend RSC and RSC indicated in its mandatory settlement conference
19 statement that it “will be seeking to be reimbursed for this [$25,000] settlement along with the fees that
20 the Court has already ruled that Enloe owes RSC.” (RSC’s MSC Statement at 3:8-10.) RSC’s settlement,
21 if determined to be in good faith, will not only not reduce the potential damages paid by Enloe to plaintiffs
22 under Code of Civil Procedure Section (because Enloe already settled with plaintiffs) but will actually
23 increase what Enloe owes in this case because of RSC’s claim to attorney’s fees and costs.
24 The timing of RSC’s settlement is also suspect. Just like in Long Beach, RSC showed no interest
25 in joining with Enloe in a global settlement with plaintiffs. Enloe settled with plaintiffs at mediation on
26 November 12, 2020, then attempted to negotiate with RSC to contribute to that settlement, which would
27 have resulted in plaintiffs dismissing the entire complaint against both Enloe and RSC. However, RSC
28 would not contribute. The parties had a mandatory settlement conference scheduled for March 10, 2021.
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1 On March 2, 2021, RSC served its mandatory settlement conference statement and indicated therein that
2 it had settled with plaintiffs for $25,000 “contingent on a Motion for Good Faith Settlement.” (RSC’s
3 MSC Statement at 3:8-9 which is attached to Foley Decl. as Ex. B.) Had RSC offered $25,000 to settle
4 before Enloe settled with plaintiffs at mediation, it is doubtful plaintiffs would have accepted RSC’s
5 offer. The timing of RSC’s settlement suggests its reason for entering into the settlement with plaintiffs
6 was to cut off Enloe’s claim to indemnity from RSC.
7 In this case, plaintiffs have calculated their damages to be around $33,000 plus general damages
8 on Ms. Currey’s claims and general damages on Mr. Currey’s loss of consortium claim. RSC’s $25,000
9 settlement with plaintiffs amounts to 20% of the overall settlement funds going to plaintiffs. RSC’s
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10 ability to settle for more money in this case is not at all hindered by insurance policy limits because it has
11 a $2 million policy limit. Although the difference in what Enloe settled for and what RSC settled for is
12 not as uneven as the parties involved in Mattco or Long Beach, the overall facts and circumstances of
13 this case suggest RSC’s decision to settle with plaintiffs was purely to cut off Enloe’s claim for indemnity
14 and/or contribution. It was unwilling to contribute any money to a global settlement that would have
15 disposed of the entire case and would have reduced Enloe’s costs. It was not until after Enloe settled
16 with RSC and after Enloe filed a motion for leave to file an amended cross-complaint to add a breach of
17 contract cause of action against RSC that RSC decided to settle with plaintiffs. If RSC was truly
18 negotiating in good faith, it would have contributed to the global settlement rather than agree to a separate
19 settlement with plaintiffs. In addition, RSC claims it decided to settle with plaintiffs, even though it
20 “does not believe it is liable for any injury to Plaintiffs, to avoid the uncertainty, time and expense of
21 trial.” (RSC’s Motion for Good Faith Settlement at 3:14-16.) However, had RSC contributed to Enloe’s
22 settlement with plaintiffs, that would have completely disposed of the case, so there was not going to be
23 a trial on plaintiffs’ claims. The additional expenses that might have been incurred had RSC not settled
24 separately would not have been an issue for RSC because of its claim that Enloe must reimburse it for all
25 attorney’s fees and costs. The true value in the settlement was not dismissal of plaintiffs’ claims against
26 it but rather the dismissal of the indemnity claims asserted by Enloe.
27 It would be unfair under the circumstances of this case for the Court to cut off Enloe’s ability to
28 seek indemnification or contribution from RSC by determining RSC’s settlement with plaintiffs was
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1 made in good faith. RSC’s settlement was contrary to the good faith standards of encouraging settlement
2 among all interested parties and of equitably allocating costs among multiple tortfeasors. The Court
3 should therefore deny RSC’s motion for good faith settlement.
4 B. If the Court Grants RSC’s Motion for Good Faith Settlement, It Would Be
Premature and Improper for the Court to Grant RSC’s Requested Relief of
5 Dismissing or Barring Enloe’s Cross-Complaint.
6 In its motion for determination of good faith settlement, RSC states that if the motion is granted,
7 “all claims for equitable indemnity and/or contribution arising out of Plaintiffs’ claims should be barred,
8 and all pending cross-complaints should be dismissed and/or barred as against the settling cross defendant
9 RSC. [Citation.] Thus, the only remaining claim is the cause of action for contractual indemnity.”
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10 (RSC’s Motion at 10:17-23.) RSC also requests in its conclusion that the “Court grant this Motion for
11 Good Faith Settlement and bar all claims (except claims for express contractual indemnity) against RSC.”
12 (Id. at 11:3-5.) Even if the Court grants RSC’s motion for good faith settlement, it would be premature
13 and improper for the Court “to dismiss claims or cross-complaints at the same time that it makes a
14 determination concerning the good faith of a settlement.” (Housing Group v. Superior Court (1994) 24
15 Cal.App.4th 549, 552; Shane v. Superior Court (1984) 160 Cal.App.3d 1237, 1245-1246.)
16 IV. CONCLUSION
17 Enloe settled with plaintiffs for $100,000 at mediation in November 2020 with the understanding
18 that plaintiffs would dismiss their entire complaint. Enloe attempted to get RSC to contribute to that
19 settlement, but RSC refused. Shortly after Enloe filed a motion for leave to file a first amended cross-
20 complaint against RSC to add a breach of action cause of action, RSC decided to settle with plaintiffs
21 directly rather than contribute money to the settlement Enloe reached with plaintiffs. This suggests RSC
22 settled with plaintiffs in bad faith purely to cut off Enloe’s claims for indemnity and contribution. The
23 Court should therefore deny RSC’s motion for good faith settlement and find that the settlement was not
24 made in good faith.
25 If the Court grants RSC’s motion for good faith settlement, it should not simultaneously grant
26 RSC’s request to dismiss claims asserted in Enloe’s cross-complaint against RSC.
27 ///
28 ///
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Respectfully Submitted,
1
Dated: March 24, 2021 LA FOLLETTE, JOHNSON,
2 DeHAAS, FESLER & AMES
3 /s/ Scott W. Foley
By:
4 SCOTT W. FOLEY
Attorneys for Defendant/Cross-Complainant/Cross-
5 Defendant
Enloe Medical Center
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1 PROOF OF SERVICE - 1013a, 2015.5 C.C.P.
2 STATE OF CALIFORNIA ]
]
3 COUNTY OF BUTTE ]
4 I am employed in the County of Sacramento, State of California. I am over the age of 18 and not
a party to the within action; my business address is LA FOLLETTE, JOHNSON, DeHAAS, FESLER &
5 AMES, 655 University Avenue, Suite 119, Sacramento, California 95825-6746.
6 On March 24, 2021, I served the foregoing document described as DEFENDANT AND
CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT
7 AND CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH
SETTLEMENT; DECLARATION OF SCOTT FOLEY IN SUPPORT OF DEFENDANT AND
8 CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT
AND CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH
9 SETTLEMENT on the interested parties in Re Currey v. Enloe Medical Center, et al., Court Case No.
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17 CV 00919, by emailing a true copy, due to the COVID-19 pandemic, pursuant to the service list as
10 follows:
11 SEE ATTACHED MAILING LIST
12 X BY ELECTRONIC SERVICE: [Code of Civ. Proc. §1010.6] by electronically mailing the
document(s) listed above to the e-mail address(es) set forth above, or as stated on the attached service list
13 per agreement in accordance with Code of Civil Procedure Section 1010.6, OR in accordance with
Emergency Rule of Court 12(b)(1) during the COVID-19 crisis, by electronically mailing the
14 document(s) listed above to the e-mail address(es) set forth as stated on the attached service list.
15 BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the United
States mail at Sacramento, California. I am ''readily familiar'' with the firm's practice of collection and
16 processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service
on that same day with postage thereon fully prepaid at Sacramento, California, in the ordinary course of
17 business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation
date or postage meter date is more than one day after date of deposit for mailing in affidavit.
18 BY FACSIMILE: I sent via facsimile, a copy of said document(s) to the following addressee(s)
at the following facsimile number(s) in accordance with the written confirmation of counsel in this action.
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BY OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered to an overnight
20 delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served.
BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the offices of
21 the addressee(s).
22 I declare under penalty of perjury under the laws of the State of California that the above is true
and correct.
23 Executed on March 24, 2021, at Sacramento, California.
24 /s/ Bonnie Crocker
Bonnie Crocker
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mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT
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Currey v. Enloe Medical Center, et al.
1 Case No.: 17 CV 00919
2 Dugan Barr
Douglas Mudford
3 Estee Lewis
Catie Barr
4 Brandon Storment
Barr & Mudford, LLP
5 1824 Court Street
P.O. Box 994390
6 Redding, CA 96099-4390
7 Phone: 530-243-8008
Fax: 530-243-1648
8 Email: catie@ca-lawyer.com
brandon@ca-lawyer.com;
9 bree@ca-lawyer.com;
LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES
erin@ca-lawyer.com;
10 sarah@ca-lawyer.com
Attorneys for Plaintiffs Hannelore Currey and Kevin Currey
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Russell S. Wollman, Esq.
12 Margaret C. McDonald
MURCHISON & CUMMING
13 801 South Grand Avenue, 9th Floor
Los Angeles, CA 90017-4613
14
Phone: (213) 623-7400
15 Fax: (213) 623-6336
Email: rwollman@murchisonlaw.com
16 tmcdonald@murchisonlaw.com
Attorneys for Cross-Defendant/Cross-Complainant RSC Associates, Inc.
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c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND
mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT
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Preview
1 BARRY VOGEL, STATE BAR NO. 108640 Bvogel@ljdfa.com 2 SCOTT W. FOLEY, STATE BAR NO. 278357 SFoley@ljdfa.com 3/24/2021 3 LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 4 655 University Avenue, Suite 119 Sacramento, California 95825-6746 5 Telephone (916) 563-3100 • Facsimile (916) 565-3704 6 Attorneys for Defendant/Cross-Complainant/Cross-Defendant ENLOE MEDICAL CENTER 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF BUTTE LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 11 HANNELORE CURREY; and KEVIN CASE NO.: 17 CV 00919 CURREY, 12 DEFENDANT AND CROSS-COMPLAINANT Plaintiffs, ENLOE MEDICAL CENTER'S OPPOSITION 13 TO DEFENDANT AND CROSS-DEFENDANT vs. RSC ASSOCIATES, INC.'S MOTION FOR 14 GOOD FAITH SETTLEMENT ENLOE MEDICAL CENTER; and DOES 1 15 through 20, inclusive, DATE: April 7, 2021 TIME: 9:00 A.M. 16 Defendants. LOCATION: Department 1 17 TRIAL DATE: None Set AND ALL RELATED ACTIONS. ACTION FILED: 03/30/17 18 19 20 I. INTRODUCTION 21 RSC Associates, Inc. (“RSC”) seeks an order from this court determining that its settlement with 22 plaintiffs was made in good faith. The good faith standard established by statute and case law seeks to 23 achieve two goals: fair apportionment of loss and encouragement of settlement. RSC’s settlement does 24 not achieve either goal. 25 Enloe Medical Center (“Enloe”) settled the case with plaintiffs (Hannelore Currey and Kevin 26 Currey) at mediation and plaintiffs indicated they would dismiss their entire complaint after they received 27 the settlement funds. Enloe then attempted to convince RSC to contribute toward that settlement, but 28 RSC would not. Later, after Enloe filed a motion for leave to file a first amended cross-complaint against s:\665.39331 -1- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 RSC to add a breach of action cause of action, RSC decided to settle with plaintiffs directly rather than 2 contact Enloe and contribute toward Enloe’s settlement. This suggests RSC’s motive for settling with 3 plaintiffs was to cut off Enloe’s claims against RSC for indemnity and contribution. The Court should 4 therefore deny RSC’s motion for good faith settlement. 5 II. STATEMENT OF RELEVANT FACTS 6 On November 12, 2020, Enloe settled with plaintiffs for $100,000 and it was Enloe’s 7 understanding that plaintiffs would dismiss the entire case after they received the settlement funds. 8 (Foley Decl., ¶ 3.) RSC’s attorneys indicated at mediation that they had no authority to settle the case 9 and only had authority to negotiate on RSC’s claim for attorney’s fees and costs. (Ibid.) For the next LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 three months, Enloe continued negotiating (or attempting to negotiate) with RSC in an effort to get RSC 11 to contribute to the settlement and/or waive its claim to attorney’s fees and costs. Those negotiations 12 included Enloe’s attorneys speaking to RSC’s attorneys, Enloe representatives speaking to RSC 13 representatives, and the mediator speaking to RSC’s attorneys. (Id. at ¶¶ 4-11.) 14 On February 10, 2021, Enloe filed a motion for leave to file a first amended cross-complaint 15 against RSC to add a cause of action for breach of contract. (Foley Decl., ¶ 12.) On March 2, 2021, RSC 16 served a Mandatory Settlement Conference Statement and indicated it had “settled with the Plaintiff for 17 $25,000 contingent on a Motion for Good Faith Settlement. RSC will be seeking to be reimbursed for 18 this settlement along with the fees that the Court has already ruled that Enloe owes RSC.” (Id. at ¶ 13.) 19 RSC has a $2 million insurance policy. (Id. at ¶ 16.) 20 On March 10, 2021, the parties attended a Mandatory Settlement Conference. (Foley Decl., ¶ 21 14.) RSC demanded that Enloe reimburse them for their entire claim to attorney’s fees and costs. (Ibid.) 22 Enloe offered some money to RSC, but RSC refused to come down from their demand and simply refused 23 to provide a counteroffer, at which point the settlement conference concluded. (Ibid.) 24 III. ARGUMENT 25 A. The Court Should Deny RSC’s Motion for Good Faith Settlement Because the Settlement Between Plaintiffs and RSC Was Made in Bad Faith. 26 27 RSC would not contribute to a global settlement at or after mediation in November 2020, which 28 would have more evenly and fairly allocated costs between Enloe and RSC, and indicated it would only s:\665.39331 -2- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 negotiate its claim for attorney’s fees and costs. Later, after Enloe moved to amend its cross-complaint, 2 RSC decided to settle with plaintiffs directly. The settlement is contingent upon an order granting this 3 motion for determination of good faith settlement, and RSC has expressed its intention to seek 4 reimbursement from Enloe for the money it agreed to pay plaintiffs in settlement. If RSC was negotiating 5 in good faith, it would have contributed to the global settlement rather than settle with plaintiffs for an 6 additional sum that it intends to recover from Enloe. RSC’s conduct demonstrates a bad faith settlement 7 aimed at injuring Enloe, so the Court should deny RSC’s motion for determination of good faith 8 settlement. 9 If a settlement “is given in good faith . . . to one or more of a number of tortfeasors claimed to be LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 liable for the same tort . . . it shall . . . discharge the party to whom it is given from all liability for any 11 contribution to any other parties.” (Code of Civ. Proc., § 877, subd. (a).) In addition, “[a] determination 12 by the court that the settlement was made in good faith shall bar any other joint tortfeasor . . . from any 13 further claims against the settling tortfeasor . . . for equitable comparative contribution, or partial or 14 comparative indemnity, based on comparative negligence or comparative fault.” (Code of Civ. Proc., § 15 877.6, subd. (c).) When faced with a motion for good faith settlement under Code of Civil Procedure 16 Section 877.6, trial courts should consider the following factors and principles before deciding whether 17 to issue an order finding the settlement was made in good faith: 18 • “a rough approximation of plaintiffs’ total recovery”; 19 • “a rough approximation of . . . the settlor’s proportionate liability”; 20 • “the amount paid in settlement”; 21 • “the allocation of settlement proceeds among plaintiffs”; 22 • “a settlor should pay less in settlement than he would if he were found liable 23 after a trial”; 24 • “the financial conditions . . . of settling defendants”; 25 • “insurance policy limits of settling defendants”; 26 • “the existence of collusion, fraud, or tortious conduct aimed to injure the 27 interests of nonsettling defendants”; and 28 s:\665.39331 -3- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx • the “settlement figure must not be grossly disproportionate to what a reasonable 1 person, at the time of the settlement, would estimate the settling defendant’s 2 liability to be”. 3 (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499; Toyota Motor Sales U.S.A., 4 Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871 [“one of the most important [Tech-Bilt factors] . 5 . . is the settling party’s proportionate liability”].) However, “‘[l]ack of good faith encompasses many 6 kinds of behavior. It may characterize one or both sides to a settlement. When profit is involved, the 7 ingenuity of man spawns limitless varieties of unfairness. Thus, formulation of a precise definition of 8 good faith is neither possible nor practicable.’” (Id. at pp. 494-495, quoting River Garden Farms, Inc. v. 9 Superior Court (1972) 26 Cal.App.3d 986, 997.) “‘When testing the good faith of a settlement figure, a LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 court may enlist the guidance of the judge’s personal experience . . .’” (Id. at p. 500, quoting River 11 Garden Farms, supra, 26 Cal.App.3d at p. 998.) 12 Trial courts should also consider fairness when determining whether a settlement was made in 13 good faith. “‘The danger that a low settlement violates the good faith clause will not impart uncertainty 14 so long as the parties behave fairly and the courts maintain a realistic awareness of the settlement 15 imponderables.’” (Tech-Bilt, supra, 38 Cal.3d at p. 500, quoting River Garden Farms, supra, 26 16 Cal.App.3d at p. 998 [emphasis added].) The Tech-Bilt factors came in response to the Supreme Court’s 17 rejection of a line of California appellate cases that “had indicated that settling parties were free to further 18 their respective interests without regard to the effect of their settlement upon other defendants.” (Abbott 19 Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 873, citing Tech-Bilt, supra, 38 Cal.3d at p. 499.) 20 The good faith standard established by statute and by Tech-Bilt seeks to achieve two goals: “fair 21 apportionment of loss and encouragement of settlement.” (Abbott Ford, supra, 43 Cal.3d 858, 875; see 22 also Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1348-1349 [“This legislation 23 [sections 877 and 877.6] has two objectives: equitable sharing of costs among the parties at fault and 24 encouragement of settlements”].) A party opposing a motion for determination of good faith settlement 25 has the burden of proof and “should be permitted to demonstrate, if he can, that the settlement is so far 26 ‘out of the ballpark’ in relation to these [Tech-Bilt] factors as to be inconsistent with the equitable 27 objectives of the statute.” (Tech-Bilt, supra, 38 Cal.3d at pp.499-500.) Whether a “settlement amount 28 was ‘within the ballpark’ of reasonable settlement amounts” “cannot be determined without” first making s:\665.39331 -4- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 “a rough approximation of the total amount the plaintiff is likely to recover” and then determining “what, 2 if any, the settling defendant’s proportionate share of that total recovery would be.” (Cahill v. San Diego 3 Gas & Electric Co. (2011) 194 Cal.App.4th 939, 966, fn 17.) 4 If a settling party moves for a determination of good faith settlement when a nonsettling party has 5 asserted an indemnity claim against it,“the settlor’s potential liability for indemnity” becomes “‘an 6 important consideration for the trial court in determining whether to approve a settlement.’” (Long Beach 7 Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 876, quoting TSI Seismic 8 Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.) “When a joint tortfeasor ‘enters 9 into a disproportionately low settlement with the plaintiff solely to obtain immunity from the cross- LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 complaint, the inference that the settlement was not made in good faith is difficult to avoid.’” (Long 11 Beach, supra, 172 Cal.App.4th 865, 876, quoting Mattco Forge, supra, 38 Cal.App.4th at p. 1354 12 [emphasis added].) “If section 877.6 is to serve the ends of justice, it must prevent a party from 13 purchasing protection from its indemnification obligation at bargain-basement prices.” (Long Beach, 14 supra, 172 Cal.App.4th at p. 876.) 15 In Mattco Forge, a cross-defendant settled with the plaintiff even though the plaintiff had no 16 viable claim against it. (Mattco Forge, supra 38 Cal.App.4th at p. 1353.) The cross-defendant admitted 17 “their express reason for entering into the settlement with [the plaintiff] was to cut off [the cross- 18 complainant’s] cross-complaint against them for indemnity.” (Ibid.) In addition, the cross-defendant 19 settled for less than 1% of the plaintiff’s claimed damages and about 14% of its available policy limits. 20 (Id. at p. 1352.) Under these circumstances, the Mattco Forge court found the settlement, which was 21 made purely to cut off the cross-complainant’s ability to seek indemnification, “was not in good faith and 22 was aimed at injuring [the cross-complainant’s] interests.” (Id. at p. 1353.) 23 In Long Beach, the plaintiffs in a medical negligence case reached an $8 million settlement with 24 four defendants, including a hospital. (Long Beach, supra, 172 Cal.App.4th at p. 868.) The plaintiffs 25 had calculated their damages would exceed $10 million and made an $8 million demand for a global 26 settlement. (Id. at p. 870.) The settlement was put on the record in open court and, shortly thereafter, a 27 defendant physician and his employer (“the physicians”) settled with the plaintiffs for $200,000, which 28 equaled “less than 2 percent of the amount at issue and 10 percent of their insurance coverage.” (Id. at s:\665.39331 -5- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 p. 868.) Hours after the $8 million settlement was put on the record, the hospital learned of the 2 physicians’ $200,000 settlement. (Id. at p. 871.) The trial court found the physicians’ settlement was 3 made in good faith, the hospital challenged the ruling by way of writ of mandate, and the appellate court 4 decided the trial court abused its discretion. (Id. at p. 868.) On appeal, the physicians argued their 5 settlement was not in bad faith merely because it was significantly lower than the other defendants’ 6 settlement, “there was no evidence they colluded with plaintiffs,” the $200,000 settlement “was large 7 enough to encompass the allegations made against them,” and “they believed they would be successful 8 at trial because [they] had no liability.” (Id. at p. 871.) They further contended since they had no liability 9 exposure, “their offer was simply a nuisance value settlement where the $200,000 represented merely LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 defense costs and expert fees for a four-week trial.” (Id. at p. 874.) The hospital argued “the settlement 11 was disproportionate and hence inadequate to bar the hospital’s contribution rights and that the 12 physicians’ attorney engaged in bad faith tactics to avoid paying $1.5 million towards the global 13 settlement as earlier discussed” by the parties after the plaintiffs served their $8 million demand. (Id. at 14 p. 872, 870-871.) 15 The Long Beach court said the physicians’ settlement was disproportionate to the plaintiffs’ claim 16 for damages and “[e]ven a slight probability of liability on [the physicians’] part would warrant a 17 contribution more significant than 2 percent.” (Long Beach, supra, 172 Cal.App.4th at p. 874.) Since an 18 expert testified during deposition that the physicians breached the standard of care, it was an abuse of 19 discretion for the trial court not “to consider the merits of the hospital’s evidence where the $200,000 20 amount the physicians paid bears no rational relationship to their proportionate share of liability for 21 plaintiffs’ damages.” (Ibid.) The appellate court also determined the physicians’ insurance policy limit 22 of $2 million militated against a good faith determination. What was most significant to the appellate 23 court was the physicians’ “potential liability for indemnity to the other alleged tortfeasors.” (Id. at p. 24 875.) “[T]he timing of the physicians’ offer [one day after the other defendants settled] suggests only 25 one result, namely, that the physicians’ reason for entering into the settlement with plaintiffs was to cut 26 off the hospital’s and [other settling defendant’s] right to indemnity from the physicians. Certainly, if 27 the timing were reversed and the physicians had made the first offer in settlement, they would not have 28 offered so little an amount as $200,000, and we doubt plaintiffs would have accepted such an offer had s:\665.39331 -6- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 it been made first.” (Id. at pp. 875-876.) When the physicians settled, their “liability exposure to the 2 hospital for indemnity was far greater than their potential exposure to plaintiffs for negligence. The true 3 value in the settlement to the physicians, then, was not the dismissal of claims as to them, but rather the 4 dismissal of the indemnity claims of the hospital.” (Id. at p. 876 [emphasis in original].) “To immunize 5 the physicians from the indemnity claims of the hospital . . .under these circumstances, where [the 6 physician] was the sole physician responsible for the care of plaintiff during her labor and delivery, serves 7 neither the goal of encouraging settlement among all interested parties nor the goal of equitably 8 allocating costs among multiple tortfeasors.” (Ibid. [emphasis in original].) Finally, the appellate court 9 found, in the context of discussing the Tech-Bilt factor of “collusion, fraud, or tortious conduct aimed at LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 injuring the interests of the joint tortfeasors,” that “the conclusion is inescapable that the physicians’ offer 11 was tactical and did not reflect the cooperative decisionmaking among all interested parties that is one of 12 the aims of settlements.” (Ibid.) 13 In the case at bar, RSC’s settlement serves neither the goal of encouraging settlement among all 14 interested parties nor the goal of equitably allocating costs among multiple tortfeasors. The inescapable 15 conclusion from the evidence is that RSC’s offer to settle was tactical and for the sole purpose to cut off 16 Enloe’s cross-complaint against it for indemnity. RSC’s settlement with plaintiffs accomplishes an unfair 17 apportionment of loss because it acts to increase Enloe’s loss. The court has decided, based on the current 18 pleadings, that Enloe must defend RSC and RSC indicated in its mandatory settlement conference 19 statement that it “will be seeking to be reimbursed for this [$25,000] settlement along with the fees that 20 the Court has already ruled that Enloe owes RSC.” (RSC’s MSC Statement at 3:8-10.) RSC’s settlement, 21 if determined to be in good faith, will not only not reduce the potential damages paid by Enloe to plaintiffs 22 under Code of Civil Procedure Section (because Enloe already settled with plaintiffs) but will actually 23 increase what Enloe owes in this case because of RSC’s claim to attorney’s fees and costs. 24 The timing of RSC’s settlement is also suspect. Just like in Long Beach, RSC showed no interest 25 in joining with Enloe in a global settlement with plaintiffs. Enloe settled with plaintiffs at mediation on 26 November 12, 2020, then attempted to negotiate with RSC to contribute to that settlement, which would 27 have resulted in plaintiffs dismissing the entire complaint against both Enloe and RSC. However, RSC 28 would not contribute. The parties had a mandatory settlement conference scheduled for March 10, 2021. s:\665.39331 -7- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 On March 2, 2021, RSC served its mandatory settlement conference statement and indicated therein that 2 it had settled with plaintiffs for $25,000 “contingent on a Motion for Good Faith Settlement.” (RSC’s 3 MSC Statement at 3:8-9 which is attached to Foley Decl. as Ex. B.) Had RSC offered $25,000 to settle 4 before Enloe settled with plaintiffs at mediation, it is doubtful plaintiffs would have accepted RSC’s 5 offer. The timing of RSC’s settlement suggests its reason for entering into the settlement with plaintiffs 6 was to cut off Enloe’s claim to indemnity from RSC. 7 In this case, plaintiffs have calculated their damages to be around $33,000 plus general damages 8 on Ms. Currey’s claims and general damages on Mr. Currey’s loss of consortium claim. RSC’s $25,000 9 settlement with plaintiffs amounts to 20% of the overall settlement funds going to plaintiffs. RSC’s LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 ability to settle for more money in this case is not at all hindered by insurance policy limits because it has 11 a $2 million policy limit. Although the difference in what Enloe settled for and what RSC settled for is 12 not as uneven as the parties involved in Mattco or Long Beach, the overall facts and circumstances of 13 this case suggest RSC’s decision to settle with plaintiffs was purely to cut off Enloe’s claim for indemnity 14 and/or contribution. It was unwilling to contribute any money to a global settlement that would have 15 disposed of the entire case and would have reduced Enloe’s costs. It was not until after Enloe settled 16 with RSC and after Enloe filed a motion for leave to file an amended cross-complaint to add a breach of 17 contract cause of action against RSC that RSC decided to settle with plaintiffs. If RSC was truly 18 negotiating in good faith, it would have contributed to the global settlement rather than agree to a separate 19 settlement with plaintiffs. In addition, RSC claims it decided to settle with plaintiffs, even though it 20 “does not believe it is liable for any injury to Plaintiffs, to avoid the uncertainty, time and expense of 21 trial.” (RSC’s Motion for Good Faith Settlement at 3:14-16.) However, had RSC contributed to Enloe’s 22 settlement with plaintiffs, that would have completely disposed of the case, so there was not going to be 23 a trial on plaintiffs’ claims. The additional expenses that might have been incurred had RSC not settled 24 separately would not have been an issue for RSC because of its claim that Enloe must reimburse it for all 25 attorney’s fees and costs. The true value in the settlement was not dismissal of plaintiffs’ claims against 26 it but rather the dismissal of the indemnity claims asserted by Enloe. 27 It would be unfair under the circumstances of this case for the Court to cut off Enloe’s ability to 28 seek indemnification or contribution from RSC by determining RSC’s settlement with plaintiffs was s:\665.39331 -8- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 made in good faith. RSC’s settlement was contrary to the good faith standards of encouraging settlement 2 among all interested parties and of equitably allocating costs among multiple tortfeasors. The Court 3 should therefore deny RSC’s motion for good faith settlement. 4 B. If the Court Grants RSC’s Motion for Good Faith Settlement, It Would Be Premature and Improper for the Court to Grant RSC’s Requested Relief of 5 Dismissing or Barring Enloe’s Cross-Complaint. 6 In its motion for determination of good faith settlement, RSC states that if the motion is granted, 7 “all claims for equitable indemnity and/or contribution arising out of Plaintiffs’ claims should be barred, 8 and all pending cross-complaints should be dismissed and/or barred as against the settling cross defendant 9 RSC. [Citation.] Thus, the only remaining claim is the cause of action for contractual indemnity.” LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 (RSC’s Motion at 10:17-23.) RSC also requests in its conclusion that the “Court grant this Motion for 11 Good Faith Settlement and bar all claims (except claims for express contractual indemnity) against RSC.” 12 (Id. at 11:3-5.) Even if the Court grants RSC’s motion for good faith settlement, it would be premature 13 and improper for the Court “to dismiss claims or cross-complaints at the same time that it makes a 14 determination concerning the good faith of a settlement.” (Housing Group v. Superior Court (1994) 24 15 Cal.App.4th 549, 552; Shane v. Superior Court (1984) 160 Cal.App.3d 1237, 1245-1246.) 16 IV. CONCLUSION 17 Enloe settled with plaintiffs for $100,000 at mediation in November 2020 with the understanding 18 that plaintiffs would dismiss their entire complaint. Enloe attempted to get RSC to contribute to that 19 settlement, but RSC refused. Shortly after Enloe filed a motion for leave to file a first amended cross- 20 complaint against RSC to add a breach of action cause of action, RSC decided to settle with plaintiffs 21 directly rather than contribute money to the settlement Enloe reached with plaintiffs. This suggests RSC 22 settled with plaintiffs in bad faith purely to cut off Enloe’s claims for indemnity and contribution. The 23 Court should therefore deny RSC’s motion for good faith settlement and find that the settlement was not 24 made in good faith. 25 If the Court grants RSC’s motion for good faith settlement, it should not simultaneously grant 26 RSC’s request to dismiss claims asserted in Enloe’s cross-complaint against RSC. 27 /// 28 /// s:\665.39331 -9- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx Respectfully Submitted, 1 Dated: March 24, 2021 LA FOLLETTE, JOHNSON, 2 DeHAAS, FESLER & AMES 3 /s/ Scott W. Foley By: 4 SCOTT W. FOLEY Attorneys for Defendant/Cross-Complainant/Cross- 5 Defendant Enloe Medical Center 6 7 8 9 LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 s:\665.39331 - 10 - currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx 1 PROOF OF SERVICE - 1013a, 2015.5 C.C.P. 2 STATE OF CALIFORNIA ] ] 3 COUNTY OF BUTTE ] 4 I am employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action; my business address is LA FOLLETTE, JOHNSON, DeHAAS, FESLER & 5 AMES, 655 University Avenue, Suite 119, Sacramento, California 95825-6746. 6 On March 24, 2021, I served the foregoing document described as DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT 7 AND CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT; DECLARATION OF SCOTT FOLEY IN SUPPORT OF DEFENDANT AND 8 CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH 9 SETTLEMENT on the interested parties in Re Currey v. Enloe Medical Center, et al., Court Case No. LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES 17 CV 00919, by emailing a true copy, due to the COVID-19 pandemic, pursuant to the service list as 10 follows: 11 SEE ATTACHED MAILING LIST 12 X BY ELECTRONIC SERVICE: [Code of Civ. Proc. §1010.6] by electronically mailing the document(s) listed above to the e-mail address(es) set forth above, or as stated on the attached service list 13 per agreement in accordance with Code of Civil Procedure Section 1010.6, OR in accordance with Emergency Rule of Court 12(b)(1) during the COVID-19 crisis, by electronically mailing the 14 document(s) listed above to the e-mail address(es) set forth as stated on the attached service list. 15 BY MAIL: I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Sacramento, California. I am ''readily familiar'' with the firm's practice of collection and 16 processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Sacramento, California, in the ordinary course of 17 business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. 18 BY FACSIMILE: I sent via facsimile, a copy of said document(s) to the following addressee(s) at the following facsimile number(s) in accordance with the written confirmation of counsel in this action. 19 BY OVERNIGHT DELIVERY: I caused such envelope(s) to be delivered to an overnight 20 delivery carrier with delivery fees provided for, addressed to the person(s) on whom it is to be served. BY PERSONAL SERVICE: I caused such envelope to be delivered by hand to the offices of 21 the addressee(s). 22 I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 23 Executed on March 24, 2021, at Sacramento, California. 24 /s/ Bonnie Crocker Bonnie Crocker 25 26 27 28 s:\665.39331 -2- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx Currey v. Enloe Medical Center, et al. 1 Case No.: 17 CV 00919 2 Dugan Barr Douglas Mudford 3 Estee Lewis Catie Barr 4 Brandon Storment Barr & Mudford, LLP 5 1824 Court Street P.O. Box 994390 6 Redding, CA 96099-4390 7 Phone: 530-243-8008 Fax: 530-243-1648 8 Email: catie@ca-lawyer.com brandon@ca-lawyer.com; 9 bree@ca-lawyer.com; LA FOLLETTE, JOHNSON, DeHAAS, FESLER & AMES erin@ca-lawyer.com; 10 sarah@ca-lawyer.com Attorneys for Plaintiffs Hannelore Currey and Kevin Currey 11 Russell S. Wollman, Esq. 12 Margaret C. McDonald MURCHISON & CUMMING 13 801 South Grand Avenue, 9th Floor Los Angeles, CA 90017-4613 14 Phone: (213) 623-7400 15 Fax: (213) 623-6336 Email: rwollman@murchisonlaw.com 16 tmcdonald@murchisonlaw.com Attorneys for Cross-Defendant/Cross-Complainant RSC Associates, Inc. 17 18 19 20 21 22 23 24 25 26 27 28 s:\665.39331 -3- currey\motions\rs c DEFENDANT AND CROSS-COMPLAINANT ENLOE MEDICAL CENTER'S OPPOSITION TO DEFENDANT AND mgf\opposition.ps CROSS-DEFENDANT RSC ASSOCIATES, INC.'S MOTION FOR GOOD FAITH SETTLEMENT &as.f.docx