Oct 01, 2022
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TENTATIVE RULINGS: CIVIL LAW & MOTION 
Wednesday, September 28, 2022 at 3:00 p.m.                             
Courtroom 18- Hon. Jennifer V. Dollard
Civil and Family Law Courthouse
3055 Cleveland Avenue
Santa Rosa, California 95403
 
PLEASE NOTE:  In accordance with the Order of Presiding Judge, a party or representative of a party may appear in Department 18 in person or remotely by Zoom, a web conferencing platform. However, appearances by Zoom are STRONGLY encouraged. Whether a party or their representative will be appearing in person or by Zoom must be part of the notification given to the Court and other parties stated below.
 
Masks need not be worn in the courthouse if you are fully vaccinated.
 
Persons are considered vaccinated two weeks after the final dose in a primary series of vaccinations.
 
All unvaccinated persons entering any Sonoma County Superior Courthouse, including any remote jury selection location, shall wear a face covering at all times compliant with all California State Health Orders and CAL/OSHA standards which must completely cover both the nose and mouth. 

CourtCall is not permitted for this calendar.
 
If the tentative ruling does not require appearances, and is accepted, no appearance is necessary. 
 
Any party who wishes to be heard in response or opposition to the Court’s tentative ruling MUST NOTIFY the Court’s Judicial Assistant by telephone at (707) 521-6723 and MUST NOTIFY all other parties of the intent to appear, and whether they will appear in person or by Zoom. Both notifications must be completed no later than 4:00 p.m. on the court (business) day immediately before the day of the hearing.
 
Unless notification of an appearance has been given as provided above, the tentative ruling shall become the ruling of the court the day of the hearing at the beginning of the calendar. 
 
 
To Join Department 18 “Zoom” Online

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To Join Department 18 “Zoom” By Phone:
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Guide for Participating in Court Proceedings via Zoom for Dept 18:
-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
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-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
 
 
1.         MCV-254404 Looney v. Initram, LLC

            Court appointed receiver Michael Brewer’s motion for an Order (i) Approving Final Report and Accounting; (ii) Discharging the Receiver; (iii) Terminating the Receivership and Exonerating Bond, and (iv) Abandoning Books and Records is GRANTED. The Court will sign the proposed order submitted.
            The Court notes California Rules of Court, Rule 3.1184 requires “Notice of the motion … must be given to every person or entity known to the receiver to have a substantial, unsatisfied claim that will be affected by the order … whether or not the person or entity is a party to the action or has appeared in it.” It is arguable that this rule entitles the Defendants to notice, despite the fact they have been defaulted. However, the Court finds there is no substantial claim affected given the facts reported by the receiver, and the Court need not address the applicability of Rule 3.1184 in light of the defaults.
 
 
2&3.    SCV-259044 Oswald v. Landmark Builders, Inc.

            Defendant Landmark Builders’ Motion for attorney’s fees and costs is CONTINUED to December 14, 2022, at 3:00 p.m. in Department 18 for further briefing. Plaintiffs argue in opposition, and Defendant Landmark conceded in its motion, that the amount of attorney’s fees and costs awarded in this motion should be offset by the settlements Landmark has entered into with the remaining parties. (See Corder v. Brown (9th Cir. 1994) 25 F.3d 833, 839 [non-moving party entitled to have fee award offset by the amount already paid in settlement by the other parties]; Bravo v. City of Santa Maria (9th Cir. 2016) 810 F.3d 659, 667 [non-moving party entitled to an offset of costs to the extent that the litigation expenses have already been reimbursed].) Not doing so would result in an improper windfall for Defendant. (Corder, supra, at 839.)
            Accordingly, Defendant Landmark is ordered to submit to the Court, and provide to Plaintiffs, evidence of any settlements made with the remaining parties in this matter. Defendant is ordered to submit supplemental briefing with an updated fees request that is offset by these settlements made. Defendant must also submit an updated memorandum of costs which reflects only the costs for which Defendant has not yet been reimbursed by another party. Defendant must file its supplemental briefing not later than November 16, 2022. Any opposition by Plaintiffs shall be filed not later than November 30, 2022. Defendant’s reply must be filed by December 7, 2022. Plaintiff’s objections to Defendant’s reply documents are OVERRULED. The Court exercises its discretion to excuse the late filing of Defendant’s reply due to the fact that this is the first year the Court has observed Native American Day.
The Court also makes the following rulings related to the motion for attorney’s fees which shall further guide the parties’ supplemental briefing.
1)      Defendant is Entitled to Reasonable Hourly Rates
The rate used in the lodestar calculation is not limited to the actual rate billed. 
      There is no requirement that the reasonable market rate mirror the actual rate billed. As we stated in Chacon v. Litke, supra, 181 Cal.App.4th 1234, 105 Cal.Rptr.3d 214: “ ‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]’ [Citation.]” (Id. at p. 1260, 105 Cal.Rptr.3d 214; accord Center for Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619, 115 Cal.Rptr.3d 762; see PLCM Group, supra, 22 Cal.4th 1084, 1094, 95 Cal.Rptr.2d 198, 997 P.2d 511 [Civil Code section 1717 permits an award of attorney fees for in-house counsel and the calculation was properly based upon the prevailing market rate in the community for comparable legal services].)
Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 701.
Here, Defendant requests that the Court set the hourly rate to be paid at the fair market value rate, which Defendant represents is $600 for Partners/Sr Counsel with 20+ years of experience; $500 for Partners with less than 20 years of experience; $450 for senior associates; and $400 for associates. The Court concurs with these rates for work performed from 2020 to the present and finds these rates reasonable in this case. However, rates performed for work prior to that time must be adjusted downward. The Court finds that a reduction of $25 for each rate for each year appropriate. (For example, a senior partner charging $600 in 2020 and later would be awarded $575 for work performed in 2019, $550 in 2018, $525 in 2017, etc.) While the subject matter was not necessarily difficult or unusual, the logistical challenges of moving the litigation forward as a result of the actions, and in some cases inaction, by plaintiffs was.
Defendant has cited to a number of local cases such as Brooke v. Aurora Behavioral Healthcare (SCV-261926), where this Court awarded the prevailing party billing rates of up to $700 for managing partners; and Sonoma Land Trust v. Thompson (SCV-258010) where the Court granted up to $650 for partners. The Court would caution that citation to different trial level cases rarely present factual comparables. For example, the motion in Brooke v. Aurora was not based on a contractual attorney’s fees provision. Rather, Plaintiff Brooke sought fees as the prevailing party in a PAGA action and provided representation on a purely contingent basis. Thus, the case is distinguished. In Sonoma Land Trust v. Thompson, the Trust sought fees under the terms of an easement, but also as the prevailing party pursuant to Civil Code section 815.7, which authorized “reasonable fees” be awarded.  Part of the representation in that case was also on a contingent basis. Thus, the case is distinguished.
Here, the Court finds application of the principles announced in Syers, Id., appropriate and that the rates requested, as adjusted based on the year billed as stated above, are appropriate and reasonable. Defendant shall recalculate the fees based on the schedule set forth by the Court.
2)      No Apportionment Shall be Necessary
 
Plaintiffs argue that Defendant should be required to apportion between time spent defending against Plaintiffs’ complaint and time spent on its own cross-complaint or defending against other cross-complaints. However, “allocation is not required when the issues are ‘so interrelated that it would have been impossible to separate them into claims for which attorney fees are properly awarded and claims for which they are not.’” (Amtower v. Photon Enterprises, Inc. (2008) 158 Cal.App.4th 1582, 1604.). The Court does not believe that apportionment is necessary. All of the cross-complaints were triggered by Plaintiffs’ initial filing of the case and were factually interrelated. Thus, Defendant naturally needed to defend against them as a result of needing to defend against Plaintiffs’ case. Accordingly, the Court declines to order Defendant to apportion its time between the various cross actions.
3)      Fees Incurred Preparing Fees Motion
 
Defendant seeks to recover attorney’s fees incurred preparing the instant motion. The Court finds that such fees are recoverable and appropriate. (See Rosen v. LegacyQuest (2014) 225 Cal.App.4th 375, 384.) However, Defendant seeks 75.7 hours in preparation of the moving papers and estimates an additional 40 hours to reply and attend a hearing. While the Court will reserve issuing a ruling on this issue until the continued hearing date, the Court tentatively is of the view that this amount of hours is not reasonable. Spending almost two full business weeks of time on drafting one motion for attorney’s fees is an excessive amount of time. Spending another full business week on replying and arguing is also excessive. If Defendant would like the Court to grant such hours for this motion, it must establish why spending this amount of time on the motion was necessary and reasonable.
Regarding Plaintiffs’ motion to tax Defendant Landmark’s costs, and despite the order that Defendant submit a new memorandum of costs reflecting the costs not yet reimbursed by other parties, the following items listed below shall be taxed. The Court expects that the costs taxed at this time will not be included in the updated memorandum of costs.
Plaintiffs’ motion to tax costs is GRANTED in the amount of $26,564.34. This is comprised of $14,210.84 for costs requested for depositions occurring after Plaintiffs’ complaint was dismissed; $4,833.50 for rough drafts of transcripts; $3,760.00 for the special master fees; and $3,760 in unexplained “other” costs.
1)      Deposition Costs Incurred After Plaintiffs’ Complaint was Dismissed are Not Recoverable
 
Allowed costs include taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed. (CCP § 1033.5(a)(3)(A).) Travel expenses to attend depositions are also allowable. (CCP § 1033.5(a)(3)(C).)
Plaintiffs have not contested the costs requested for the depositions taken before the dismissal of Plaintiffs’ complaint, but argue that the costs incurred on depositions taken after the complaint was dismissed should be taxed.
The Court agrees. The costs incurred for depositions taken after Plaintiffs’ complaint was dismissed were not necessary costs for defending against Plaintiffs’ causes of action. Furthermore, Plaintiffs were precluded by the Special Master from participating in those depositions since they were no longer parties to the ongoing litigation. (See Freedman Decl., Exhibit D.) Accordingly, Defendant cannot recover these costs. Defendant’s costs shall be taxed by $14,210.84.
2)      Costs for Rough Drafts are Not Recoverable
 
“Standard transcription fees for ‘necessary’ depositions are recoverable, but the extra cost for expediting transcripts may be allowed only in the exercise of the trial court's discretion. (Code Civ. Proc., § 1033.5, subds. (a)(3), (c)(4).)” (Hsu v. Semiconductor Sys., Inc. (2005) 126 Cal.App.4th 1330, 1342.) CCP § 1033.5(a)(3) allows costs for “Taking, video recording, and transcribing necessary depositions, including an original and one copy of those taken by the claimant and one copy of depositions taken by the party against whom costs are allowed.
Plaintiffs argue that the costs Defendant spent to “expedite” certain deposition transcripts should be taxed. In support of this, Plaintiffs suggests $12,632 should be taxed. However, Plaintiffs did not offer an explanation as to how this figure was reached. Defendant argues that they never requested expedited transcripts, but rather rough drafts of the transcripts. Defendant concedes that a total of $4,833.50 was spent on rough drafts of transcripts.
Plaintiffs need not bear the burden of the cost for the rough drafts that were prepared prior to the certified transcript, as they were not necessary and not authorized by the Code. The rough draft essentially amounts to a second copy of the transcript, where the Code only allows for costs of one copy. Accordingly, $4,833.50 will also be taxed from Defendant’s costs.
3)      If Not Reimbursed by Other Parties Defendant May Recover Costs for Service of Process of its Cross-Complaint on Parties other than Plaintiffs.
 
Defendant’s Cross-Complaints were necessitated by Plaintiffs’ original filing of the action against Defendant. Thus, according to CCP 1033.5(a)(4) and (c)(2), the costs incurred in serving the cross-complaint were necessary and recoverable.
4)      Defendant’s “Other Costs”
 
Defendant lists “other costs” in its memorandum of costs as totaling $33,049.99. However, in the corresponding attachment (16a), only two line-items are listed: one totaling $25,529.99 for preparing the expert files and the other totaling $3,760 for the special master fees. These two items together total $29,289.99. The difference between the total listed by Defendant and the actual total is $3,760. This extra $3,760 is not explained at all in the memorandum of costs, therefore the Court orders it taxed.
a.       The Special Master Fees Shall Not be Recoverable
 
Plaintiffs seek to have the special master fees taxed from Defendant’s costs. The Court agrees that the special master fees should be taxed. At the time the special master was appointed, the parties agreed that the fees would be apportioned equally among the parties, and the Court so ordered. (See March 16, 2017 Order.) The Court sees no compelling reason to alter the agreement between the parties. Therefore, $3,760 shall be taxed.
b.      Costs to Prepare Expert Files for Depositions
 
Defendant seeks $25,529.99 for preparing its experts’ files for their depositions. Based on the circumstances of this case, the Court finds that these costs were reasonable and necessary for the conduct of litigation; especially for assisting the Special Master. Accordingly, they will not be taxed.
Plaintiffs are ordered to submit a written ruling that is consistent with the Court’s tentative ruling on their motion to tax costs and that is in compliance with CRC Rule 3.1312.
 
 
4&5.    SCV-264869 Gorder v. Mutert

            This is a joint ruling on both Defendant/Cross-Complainant’s motion for attorney’s fees and costs and Plaintiffs’ motion to tax costs. This matter came on for hearing on June 15, 2022, at which time the Court made final determinations on specific matters and ordered the parties to submit supplemental briefing to conform the motion with the Court’s rulings. The issues finally determined by the Court on June 15th include:
 
(1)   billing rates for Defendant’s attorneys were set at premium 2022 local rates;
(2)   time spent on and costs relating to the “tree claims” were ordered excluded;
(3)   Defendant was ordered to submit an updated memorandum of costs which reflects deductions of the costs related to the tree claims and other costs conceded by Defendant as not recoverable; and
(4)   Costs for models, enlargements, and photocopies were ordered recoverable.
 
              The Court now issues the following ruling on the remainder of the issues. Defendant’s motion for attorney’s fees and costs is GRANTED in the amount of $532,369.58. This is comprised of $498,980.47 in fees and $33,389.11 in costs. Plaintiffs’ motion to tax costs is DENIED. The request that interest accrue from the date of the judgment is GRANTED. Both parties’ requests for judicial notice are GRANTED.
 
              Plaintiffs’ evidentiary objections to Defendant’s supplemental papers are OVERRULED. While the Court did not require supplemental briefing on the motion to tax costs, the Court did not prohibit the parties from addressing the issue of costs in the supplemental briefing. It is not unreasonable that Defendant would address the costs request in his supplemental briefing since the Court previously made rulings which required Defendant to adjust his costs request. The Court also finds the matters raised in the reply responsive to the issues addressed by the motion and opposition thereto.
 
I.                    Attorney’s Fees
 
Defendant has submitted supplemental papers in which he has reduced his attorney’s fee request by $51,657, as a result of adjusting the hourly rates and removing time spent on the tree claims. Plaintiffs argue that Defendant’s allocations regarding the tree claims were insufficient because additional time should have been reduced in the instances where block billing appears in Defendant’s invoices (such as time spent to “draft complaint” and trial preparation). This is because certain of these block-billed time entries necessarily involved time spent on the tree claims. The Court recognizes this and agrees that a percentage should be reduced from the updated fees request to reflect time that can be attributed to the tree claims within these general time entries sprinkled throughout Defendant’s invoices. While the Court generally is hesitant to use a percentage reduction, in this case the Defendant has had an opportunity to provide a more nuanced break out and has not done so, and the method of block billing eliminates other possible methods for reduction. However, in arriving at the amount of reduction, the Court is now persuaded that during the course of litigation, though not at trial, it was necessary to defend against the issue of fire management of the property separate and apart from the claim of trespass and damage to trees on the property of the Defendant. 
Considering all these factors, as well as the Court’s knowledge and experience, and an overview of this particular case, the Court finds that Defendant’s updated attorney’s fees request shall be reduced by 2% as further allocation to the tree claims. The Court has also given due consideration to the need for an award that amounts to full and fair compensation. Accordingly, the total attorney’s fees awarded to Defendant are $498,980.47 ($509,163.75 less 2%).
II.                 Costs
 
Defendant has submitted an updated memorandum of costs which requests $17,004.63 in statutory costs. Defendant’s motion for attorney’s fees and costs requests that further discretionary costs be awarded; these costs are not included in the memorandum of costs. Defendant requests a total costs award of $33,389.11. Therefore, the discretionary costs requested amount to $16,384.48. Plaintiffs argue that the discretionary costs requested should be excluded because they were not included in the memorandum of costs. However, Plaintiffs have not provided authority that sets forth that discretionary costs may not be awarded if not included in a memorandum of costs.
While CRC Rule 3.1700 requires a prevailing party seeking costs to file a memorandum of costs within 15 days of the judgment, it does not provide that costs not included in the memorandum are not recoverable. In Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, as in the present case, the prevailing party sought discretionary costs in a motion for attorney’s fees and costs but did not include these costs in his memorandum of costs, which only outlined the statutory costs requested. (Id. at 69-70.) The Gorman Court did not exclude the non-statutory costs sought only in the motion. (Ibid.) The Gorman Court found no prejudice to the opposing party because they had the opportunity to object to these discretionary costs in their opposition to the motion for attorney’s fees and costs. The same is true here. However, in their opposition, Plaintiffs objected to the discretionary costs on the sole basis that they were not included in the memorandum of costs. Plaintiffs did not argue why the Court should not exercise the discretion afforded to it by CCP 1033.5(c)(4) in allowing the additional costs.
Furthermore, the Court notes that the CC&Rs provide that the non-prevailing party shall pay the reasonable attorney’s fees and costs incurred by the prevailing party. (See Decl. of Counsel Garrett iso Motion for Attorney’s Fees, Exhibit 3.) It does not limit the award of costs to those statutorily allowable. Defendant has shown that these discretionary costs requested were costs incurred by Defendant. The Court finds that the $16,384.48 requested in discretionary costs are reasonable and allowable. Accordingly, the total amount of discretionary costs awarded is $16,384.48. 
Regarding the statutory costs outlined in Defendant’s updated memorandum of costs, Plaintiffs’ motion to tax these costs is denied. As to the court reporter fees, these are different than fees for transcripts and are recoverable costs. (Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58; Government Code section 68086; CCP §1033.5(a)(11).) Plaintiffs also request that certain messenger fees in section 16 be taxed. Messenger fees are not expressly authorized by statute, but may be allowed in the discretion of the court. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 132.) Messenger fees are properly denied when there is no showing that they are reasonable or necessary. (Ibid.) The Court finds that the messenger fees in this matter are reasonable and necessary because Defendant’s counsel is located in Menlo Park, thus could not feasibly have a member of his staff file or deliver documents to the Court. And the Court did not become a mandatory electronic filing (efiling) court until long after the initiation of this litigation. And even then, despite moving to a “paperless” environment and mandating efiling, the Court still requires courtesy copies by local rule (e.g., Local Rule 5.1.)  Several of the messenger fees in section 16 are for delivering courtesy copies to the Court. Delivering courtesy copies can be considered “necessary to the conduct of litigation,” as described in CCP § 1033.5, as they are required to be delivered pursuant to local rule. Accordingly, this request is denied.
The motion to tax costs addresses several other items of dispute, however the Court has previously ruled on each and they have been resolved with Defendant’s filing of the updated memorandum of costs. Accordingly, the balance of the motion to tax costs is denied. The total amount awarded in statutory costs is $17,004.63. Together with the discretionary costs awarded above, the total amount awarded for costs is $33,389.11.
III.              Interest
 
Plaintiffs concede that Defendant is entitled to interest on the attorney’s fee award pursuant to Felczer v. Apple Inc. (2021) 63 Cal.App.5th 406. However, Plaintiffs request the Court order that such interest shall not accrue during the pendency of this motion because the delay in determining the motion is attributable to Defendant’s failure to apportion his fees and costs. Plaintiffs have not provided authority to support such an order. In fact, issuing such an order would be contrary to the Court’s ruling in Felczer, supra, where the Court specifically held that interest should accrue from the time of judgment, rather than waiting until the amount is certain. (Id. at 418.) The Court declines to make such a ruling. Pursuant to Felczer, Defendant shall be entitled to interest at a rate of 10% per annum from the date judgment was entered in this matter.
Defendant’s counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule 3.1312.
 
 
6.         SCV-264869 Bradley v. Abbott
 
            Cross-Defendant Reyff Electric Company’s unopposed motion for order determining good faith settlement is GRANTED. If no oral argument is requested, the Court will sign the proposedorder lodged with the moving papers.
Analysis:
I.                    Underlying Facts
 
Plaintiff, The Bradley Company, and Defendant Barbara Abbott (et al.) entered into a contract agreement for the construction of a home in Santa Rosa. Plaintiff alleges Defendant Abbott owes money under the terms of the contract. Defendant Abbott filed a cross-complaint against Plaintiff claiming construction defects. As a result, Plaintiff filed a cross-complaint against its subcontractors for indemnity and contribution, including Reyff Electric Company (moving party) as a Cross-Defendant. Reyff Electric performed electrical installations. Defendant Abbott did not allege any claims against Reyff Electric.
Defendant Abbott alleges that a smoke alarm was improperly installed and there is an inoperable switch. Reyff Electric estimates that these alleged deficiencies could be repaired for less than $1,000. Nonetheless, Reyff Electric has reached an agreement with Defendant Abbott to pay her $2,500 to settle the claims against it. Reyff Electric now seeks the Court’s approval that such settlement was reached in good faith.
II.                 Standards
 
According to CCP §877.6, a “plaintiff or other claimant” can settle with one or more joint tortfeasors or co-obligors without releasing others, provided the settlement is in “good faith.” A good-faith settlement discharges the settling defendant from liability to other parties for equitable contribution or comparative indemnity. (City of Grand Terrace v. Sup.Ct. (Boyter) (1987) 192 Cal.App.3d 1251, at 1262, explained that the amount of the settlement and whether it is grossly disproportionate to potential liability is the “ultimate determinant of good faith....” See also River Garden Farms, Inc. v. Sup.Ct. (1972) 26 Cal.App.3d 986, at 996.) The determination of good-faith settlement is in the discretion of the trial court. (Tech-Bilt Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 502.)
There is no precise standard to determine “good faith,” but the court must harmonize public policy favoring settlements with public policy favoring equitable sharing of costs among tortfeasors. To this end, Tech-Bilt Inc., supra, 38 Cal.3d 488, requires that the settlement be within the “reasonable range” of settling tortfeasor's share of liability, taking into consideration the facts and circumstances of the particular case and evaluating the settlement on the basis of information available at the time of settlement. The factors include:
1) A rough approximation of the total recovery and settlor’s proportionate liability;
2) The amount paid in settlement;
3) A recognition that a settlor should pay less in settlement than if found liable after trial; 4) The allocation of the settlement proceeds among plaintiffs;
5) Settlor's financial condition and insurance policy limits, if any; and
6) Evidence of any collusion, fraud or tortious conduct between the settlor and the plaintiffs aimed at making non-settling parties pay more than their fair share.
 
Here, Cross-Defendant Reyff Electric has represented that the estimated costs to repair the electrical deficiencies alleged would be less than $1,000. There has been no opposition by any party, therefore this estimation has not been disputed. The $2,500 settlement is proportionate to Reyff Electric’s liability and is reasonable. The Court finds that this settlement was made in good faith and is appropriate.
 
 
 
7.         SCV-264994 Quan v. Mackenzie
 
Defendants Michael Hines, Paul Harper, and James MacKenzie’s unopposed motion for order determining good faith settlement is GRANTED. If no oral argument is requested, the Court will sign the proposed order lodged with the moving papers.
Analysis:
I.          Underlying Facts
This matter arises out of the alleged wrongful termination of Plaintiff William Quan by Defendants Acrisure and Vantreo. In addition to the claims alleged against Defendants Acrisure, Vantreo, and Michael Holzman arising out of the alleged wrongful termination, Plaintiff further alleged that there existed between him and Defendants Hines, Harper, and MacKenzie a “side-agreement” in which the three defendants agreed to pay Plaintiff $300,000 if he were terminated without cause. Defendants Hines, Harper, an MacKenzie have now entered into an agreement with Plaintiff to pay Plaintiff $352,500 in exchange for release of all the claims against them. The settling defendants seeks the Court’s approval that such settlement was reached in good faith.
The Court notes that each of the non-moving defendants prevailed on a motion for summary judgment and have since had judgment entered in their favor. According to Wilshire Ins. Co. v. Tuff Boy Holding, Inc. (2001) 86 Cal.App.4th 627, 641, CCP § 877.6 (regarding determination of good faith settlements) still applies to cases where there are no longer non-settling defendants.
II.        Standards
According to CCP §877.6, a “plaintiff or other claimant” can settle with one or more joint tortfeasors or co-obligors without releasing others, provided the settlement is in “good faith.” A good-faith settlement discharges the settling defendant from liability to other parties for equitable contribution or comparative indemnity. (City of Grand Terrace v. Sup.Ct. (Boyter) (1987) 192 Cal.App.3d 1251, at 1262, explained that the amount of the settlement and whether it is grossly disproportionate to potential liability is the “ultimate determinant of good faith....” See also River Garden Farms, Inc. v. Sup.Ct. (1972) 26 Cal.App.3d 986, at 996.) The determination of good-faith settlement is in the discretion of the trial court. (Tech-Bilt Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 502.)
There is no precise standard to determine “good faith,” but the court must harmonize public policy favoring settlements with public policy favoring equitable sharing of costs among tortfeasors. To this end, Tech-Bilt Inc., supra, 38 Cal.3d 488, requires that the settlement be within the “reasonable range” of settling tortfeasor's share of liability, taking into consideration the facts and circumstances of the particular case and evaluating the settlement on the basis of information available at the time of settlement. The factors include:
1) A rough approximation of the total recovery and settlor’s proportionate liability;
2) The amount paid in settlement;
3) A recognition that a settlor should pay less in settlement than if found liable after trial; 4) The allocation of the settlement proceeds among plaintiffs;
5) Settlor's financial condition and insurance policy limits, if any; and
6) Evidence of any collusion, fraud or tortious conduct between the settlor and the plaintiffs aimed at making non-settling parties pay more than their fair share.
 
Here, Plaintiff’s claims arise out of the side-agreement for $300,000 to be paid by the moving defendants if Plaintiff were terminated without cause. The moving defendants have agreed to pay $352,500 to settle Plaintiff’s claims. Defendants have made the following allocations of this amount to the causes of action alleged against them: $150,000 for Plaintiff's first cause of action (breach of contract); $125,000 for Plaintiff's second and third causes of action (fraud, misrepresentation, and negligent misrepresentation against MacKenzie); $25,000 for Plaintiff's seventh cause of action (unjust enrichment); $25,000 for Plaintiff's eighth cause of action (invasion of privacy); $25,000 for Plaintiff's ninth cause of action (defamation); and $2,500 for sanctions recommended by the Discovery Referee in his Statement of Decision dated April 28, 2022. The Court finds that this settlement is proportionate to the moving defendants’ liability, that it is reasonable, and that it was made in good faith.
 
 
 
8.         SCV-266590 Poehner v. Robb
 
Defendants’ unopposed motion to compel responses to Request for Production of Documents, Form Interrogatories, and Special Interrogatories is GRANTED. Defendants’ request for monetary sanctions is DENIED WITHOUT PREJUDICE because the notice of motion does not comply with CCP §2023.040, which requires, “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought.” Here, the notice does not identify every person, party and attorney against whom the sanctions are sought, nor the type of sanction sought. The request is therefore denied. However, the denial is without prejudice as this defect may be readily cured and, while not a best practice, the law does not prohibit bringing a motion for sanctions separately from the underlying motion to compel. (London v. Dri-Honing Corp. (2004) 117 Cal.App.4th 999, 1008.)
 
Plaintiff’s responses to Defendants’ discovery were initially due on September 4, 2021. Defendants agreed to an extension of the deadline until October 4, 2021. Plaintiff did not timely respond. During the meet and confer process, Defendants agreed to hold off on filing a motion to compel to allow Plaintiff more time to respond. By February of 2022, Plaintiff had still not responded; therefore, Defendants filed the instant motion.
 
Plaintiff is ordered to provide responses, without objections, to Defendant’s discovery requests within 30 days of service of the order on this motion. Because Plaintiff failed to timely respond to Defendants’ discovery requests, objections to such discovery are waived. (CCP § 2030.290; CCP § 2031.300.)
 
Defendants shall submit a written order to the Court consistent with this tentative ruling. Due to the lack of opposition, in compliance with Rule 3.1312 is excused.
 
 
 
 
 
 
*This is the end of the Tentative Rulings*
 
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