This case was last updated from Los Angeles County Superior Courts on 06/16/2019 at 17:07:38 (UTC).

NANCY PERRY VS MARRIOTT HOTEL SERVICES INC ET AL

Case Summary

On 11/09/2017 NANCY PERRY filed a Personal Injury - Other Personal Injury lawsuit against MARRIOTT HOTEL SERVICES INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2825

  • Filing Date:

    11/09/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Petitioner and Plaintiff

PERRY NANCY

Defendants, Respondents and Cross Defendants

MCNULTY NIELSEN

MARRIOTT MARINA DEL REY

ARTISTS VIEW ENTERTAINMENT

DOES 1 TO 100

MARRIOTT HOTEL SERVICES INC

NIELSEN MCNULTY

MILANI STEFANO DOE 3

HMH MARINA LLC

HOLLYWOOD CLOSE-UPS INC. DOE 4

SHEEHAN DAVID DOE 2

CCMH MARINA LLC

Respondents, Defendants and Cross Plaintiffs

MARRIOTT HOTEL SERVICES INC

HMH MARINA LLC

Attorney/Law Firm Details

Petitioner and Plaintiff Attorneys

BURKE SEAN M.

DORDICK GARY A

Defendant and Respondent Attorneys

LOUREIRO KARL R. ESQ.

WAYNE ERIC J. ESQ.

VASQUEZ OLIVER

HAUSER JOHN A. LAW OFFICES OF

Cross Plaintiff Attorney

WAYNE ERIC JEFFREY

 

Court Documents

Unknown

3/15/2018: Unknown

NOTICE OF POSTING JURY FEES

3/15/2018: NOTICE OF POSTING JURY FEES

AMENDMENT TO COMPLAINT

3/28/2018: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

3/28/2018: AMENDMENT TO COMPLAINT

Proof of Service

4/3/2018: Proof of Service

Proof of Service

4/30/2018: Proof of Service

AMENDMENT TO COMPLAINT

5/2/2018: AMENDMENT TO COMPLAINT

AMENDMENT TO COMPLAINT

5/17/2018: AMENDMENT TO COMPLAINT

Unknown

5/25/2018: Unknown

DEFENDANT DAVID SHEEHANS ANSWER TO UNVERIFIED COMPLAINT

5/25/2018: DEFENDANT DAVID SHEEHANS ANSWER TO UNVERIFIED COMPLAINT

NOTICE OF CHANGE OF HANDLING ATTORNEY

7/6/2018: NOTICE OF CHANGE OF HANDLING ATTORNEY

Proof of Service

8/2/2018: Proof of Service

Motion for Summary Judgment

1/16/2019: Motion for Summary Judgment

Amendment to Complaint (Fictitious/Incorrect Name)

1/25/2019: Amendment to Complaint (Fictitious/Incorrect Name)

Notice of Change of Address or Other Contact Information

1/31/2019: Notice of Change of Address or Other Contact Information

Stipulation and Order

2/11/2019: Stipulation and Order

Motion to Compel Discovery

2/25/2019: Motion to Compel Discovery

Motion to Compel Discovery

2/26/2019: Motion to Compel Discovery

25 More Documents Available

 

Docket Entries

  • 05/30/2019
  • Docket[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by CCMH MARINA, LLC (Defendant)

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  • 05/16/2019
  • DocketSummons (Cross-Complaint); Filed by MARRIOTT HOTEL SERVICES INC (Defendant)

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  • 05/16/2019
  • DocketCross-Complaint; Filed by MARRIOTT HOTEL SERVICES INC (Cross-Complainant)

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  • 05/16/2019
  • DocketAnswer; Filed by MARRIOTT HOTEL SERVICES INC (Defendant)

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  • 05/09/2019
  • Docketat 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 05/07/2019
  • DocketSubstitution of Attorney; Filed by NANCY PERRY (Plaintiff)

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  • 05/06/2019
  • DocketSubstitution of Attorney; Filed by NANCY PERRY (Plaintiff)

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  • 04/25/2019
  • Docketat 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/12/2019
  • DocketNotice of Change of Address or Other Contact Information; Filed by Oliver Vasquez (Attorney)

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  • 04/10/2019
  • DocketAnswer; Filed by Hollywood Close-Ups, Inc. (Doe 4) (Defendant)

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40 More Docket Entries
  • 12/20/2017
  • DocketAmendment to Complaint; Filed by Plaintiff/Petitioner

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  • 11/22/2017
  • DocketPROOF OF SERVICE S & C

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  • 11/22/2017
  • DocketProof of Service (not Summons and Complaint); Filed by NANCY PERRY (Plaintiff)

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  • 11/22/2017
  • DocketProof of Service (not Summons and Complaint); Filed by NANCY PERRY (Plaintiff)

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  • 11/22/2017
  • DocketPROOF OF SERVICE S & C

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  • 11/22/2017
  • DocketProof of Service (not Summons and Complaint); Filed by NANCY PERRY (Plaintiff)

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  • 11/22/2017
  • DocketPROOF OF SERVICE S & C

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  • 11/09/2017
  • DocketComplaint; Filed by NANCY PERRY (Plaintiff)

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  • 11/09/2017
  • DocketSUMMONS

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  • 11/09/2017
  • DocketCOMPLAINT FOR DAMAGES: 1. GENERAL NEGLIGENCE; AND 2. PREMISES LIABILITY

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Tentative Rulings

Case Number: ****2825    Hearing Date: November 14, 2019    Dept: 4A

Motion to Compel Responses to Form Interrogatories and Request for Production (Both Set One); Motion to Deem Matters in Request for Admissions (Set One) as True

Having considered the moving and opposing papers, the Court rules as follows.

BACKGROUND

On November 9, 2017, Plaintiff Nancy Perry (“Plaintiff”) filed a complaint against Defendants Marriot Hotel Services, Inc., CCMH Marina, LLC (erroneously sued as Marriot Marina Del Rey), and McNulty Nielsen alleging negligence and premises liability for falling off of a stage on May 1, 2016.

On March 28, 2018, Plaintiff filed an amendment to the complaint renaming Doe 2 as Defendant David Sheehan and Doe 3 as Defendant Stefano Milani.

On May 2, 2018, the Court approved an amendment to the complaint renaming Defendant Marriot Marina Del Rey as Defendant CCMH Marina, LLC.

On May 17, 2018, Plaintiff filed an amendment to the complaint renaming Doe 4 as Hollywood Close-Ups, Inc.

On January 25, 2019, Plaintiff filed an amendment to the complaint renaming Doe 5 as HMH Marina LLC.

On April 8, 2019, Defendant/Cross-Complainant HMH Marina LLC filed a cross-complaint against Defendants/Cross-Defendants Hollywood Close-Ups and David Sheehan and Cross-Defendants McNulty Nielson, Inc. and Artists View Entertainment, Inc. seeking equitable indemnity, apportionment of fault, declaratory relief, and comparative indemnity and alleging a breach of contract.

On May 26, 2019, Defendant/Cross-Complainant Marriot Hotel Services, Inc. filed a cross-complaint against Defendants/Cross-Defendants Hollywood Close-Ups, Inc., David Sheehan, Artists View Entertainment, Inc., and McNulty Nielsen, Inc. seeking equitable indemnity, apportionment of fault, declaratory relief, and comparative indemnity.

On October 11, 2019, Defendant/Cross-Complainant CCMH Marina, LLC filed motions to compel Defendant/Cross-Defendant David Sheehan to provide verified responses without objections to Form Interrogatories and Request for Production (Both Set One) and a motion to deem the matters in Requests for Admissions (Set One) as true against Defendant/Cross-Defendant David Sheehan.

Trial is set for March 30, 2020.

PARTY’S REQUESTS

Defendant/Cross-Complainant CCMH Marina, LLC (“Moving Party”) asks the Court to compel Defendant/Cross-Defendant David Sheehan (“Opposing Party”) to provide verified responses without objections to Form Interrogatories and Request for Production (Both Set One) due to Opposing Party’s failure to provide timely verified responses.

Moving Party also requests that the Court deem the matters within Requests for Admissions (Set One) as true against Opposing Party based on Opposing Party’s failure to provide timely verified responses.

Moving Party further asks the Court to impose monetary sanctions of $4,335 against Opposing Party and his counsel of record for their abuse of the discovery process.

LEGAL STANDARD

If a party to whom interrogatories are directed fails to serve a timely response, the propounding party may move for an order compelling responses and for a monetary sanction. (Code Civ. Proc. ; 2030.290, subd. (b).) The statute contains no time limit for a motion to compel where no responses have been served. All that need be shown in the moving papers is that a set of interrogatories was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (See Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905-906.)

Where there has been no timely response to a demand for the production of documents, the demanding party may seek an order compelling a response. (Code Civ. Proc. ; 2031.300, subd. (b).) Failure to timely respond waives all objections, including privilege and work product. (Code Civ. Proc. ; 2031.300, subd. (a).)  Thus, unless the party to whom the demand was directed obtains relief from waiver, he or she cannot raise objections to the documents demanded. There is no deadline for a motion to compel responses. Likewise, for failure to respond, the moving party need not attempt to resolve the matter outside court before filing the motion.

Pursuant to Code of Civil Procedure section 2033.280, subdivision (b), a “party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with section 2023.010).”  The court “shall” grant the motion to deem requests for admission admitted “unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.”  (Code Civ. Proc. ; 2033.280, subd. (c).)

Under California Code of Civil Procedure section 2023.030, subd. (a), “[t]he court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. . . . If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Failing to respond or to submit to an authorized method of discovery is a misuse of the discovery process.  (Code of Civ. Proc. ; 2023.010.)

Sanctions are mandatory in connection with a motion to deem matters specified in a request for admissions as true and motions to compel responses to interrogatories and requests for production of documents against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel unless the court “finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (Code Civ. Proc. ;; 2030.290, subd. (c), 2031.300, subd. (c), 2033.280, subd. (c).)

DISCUSSION

On May 2, 2019, Moving Party served Form Interrogatories, Request for Production, and Request for Admission (All Set One) on Opposing Party by U.S. mail.  (All Three Declarations of Eric J. Wayne (“Wayne Decl.”), ¶ 2-3, Exh. 1.)  Moving Party gave one extension through June 20, 2019 to provide verified responses in which Opposing Party could include objections.  (Wayne Decl., ¶¶ 4-5, Exh. 3.) ¶¶ 6-7.)  Moving Party granted a second extension for Opposing Party to provide verified responses without objections by July 26, 2019.  (Wayne Decl., 9, Exh. 5-6.)  On July 26, 2019, Opposing Party served unverified responses without objections to Moving Party.  (Wayne Decl., 10-11, Exh. 7.)  Moving Party had not received verified responses without objections as of the signing of Eric J. Wayne’s declarations on October 11, 2019.  (Wayne Decl., ¶¶ 12-13.)

Opposing Party argues that the July 26, 2019 responses were sufficient in meeting Opposing Party’s obligations under the Discovery Act.  (Vasquez Decl., 2, Exh. A.)  However, these responses include objections and are unverified.  Moving Party did not allow objections in granting an extension for Opposing Party to serve verified responses by July 26, 2019.  And even if objections were allowed, Opposing Party’s unverified responses are akin to no responses at all.  (See Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) as opposed to motions to compel further, are the proper procedural vehicle to bring Moving Party’s complaints before the Court.

Opposing Party also argues that the responses were served without verifications on July 26, 2019 because Opposing Party’s advanced cancer condition has made it extremely difficult for him to participate in the discovery process.  (Vasquez Decl., 3.)  The Court sympathizes with Opposing Party’s ailment.  It is clear that this is a substantial justification for Opposing Party’s actions thereby making the imposition of sanctions unjust.  However, the Code of Civil Procedure does not allow for such an unfortunate situation to relieve Opposing Party of his discovery obligations.

Therefore, the motions are GRANTED.

Opposing Party is ordered to serve verified responses without objections to Moving Party’s Form Interrogatories and Request for Production (Set One) within 30 days of this ruling.

The Court deems the matters within Moving Party’s Request for Admissions (Set One) as true, unless Opposing Party presents evidence of substantial compliance with California Code of Civil Procedure section 2033.280, subdivision (c) at the time of the hearing.

Moving Party’s request for sanctions is DENIED.

Moving Party is ordered to give notice of this ruling.



Case Number: ****2825    Hearing Date: October 30, 2020    Dept: 28

Motion to Challenge an Application for a Determination of a Good Faith Settlement (x2)

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On November 9, 2017, Plaintiff Nancy Perry (“Plaintiff”) filed a complaint against Defendants Marriott Hotel Services, Inc., Marriott Marina Del Rey, Artists View Entertainment, and McNulty Nielsen. Plaintiff alleges negligence and premises liability in the complaint for falling off of a stage on May 1, 2016.

On March 28, 2018, Plaintiff filed an amendment to the complaint renaming Doe 2 as Defendant David Sheehan and Doe 3 as Defendant Stefano Milani.

On May 2, 2018, the Court approved an amendment to the complaint renaming Defendant Marriott Marina Del Rey as Defendant CCMH Marina, LLC.

On May 17, 2018, Plaintiff filed an amendment to the complaint renaming Doe 4 as Hollywood Close-Ups, Inc.

On January 25, 2019, Plaintiff filed an amendment to the complaint renaming Doe 5 as HMH Marina LLC.

On April 8, 2019, Defendant/Cross-Complainant HMH Marina LLC filed a cross-complaint against Defendants/Cross-Defendants Hollywood Close-Ups and David Sheehan and Cross-Defendants McNulty Nielson, Inc. and Artists View Entertainment, Inc. seeking equitable indemnity, apportionment of fault, declaratory relief, and comparative indemnity and alleging a breach of contract.

On May 16, 2019, Defendant/Cross-Complainant Marriott Hotel Services, Inc. filed a cross-complaint against Defendants/Cross-Defendants Hollywood Close-Ups, Inc., David Sheehan, Artists View Entertainment, Inc., and McNulty Nielsen, Inc. seeking equitable indemnity, apportionment of fault, declaratory relief, and comparative indemnity.

On May 18, 2020, Defendants/Cross-Defendants Hollywood Close-Ups, Inc. and David Sheehan filed an application for a determination of good faith settlement.

On June 22, 2020, Defendant CCHM Marina, LLC and Defendants/Cross-Complainants Marriott Hotel Services, Inc. and HMH Marina LLC filed a motion to challenge Defendants/Cross-Defendants Hollywood Close-Ups, Inc.’s and David Sheehan’s Application for a Determination of a Good Faith Settlement pursuant to California Code of Civil Procedure section 877.6.

On June 22, 2020, Defendant/Cross-Defendant McNulty Nielsen filed a motion to challenge Defendants/Cross-Defendants Hollywood Close-Ups, Inc.’s and David Sheehan’s Application for a Determination of a Good Faith Settlement pursuant to California Code of Civil Procedure section 877.6.

On June 23, 2020, the Court scheduled both the motions to challenge a good faith settlement to be heard on October 30, 2020.

On August 25, 2020, the Court dismissed Defendant Artists View Entertainment from Plaintiff’s complaint with prejudice.

A trial setting conference is scheduled for November 2, 2020.

PARTIES REQUESTS

Defendant CCHM Marina, LLC and Defendants/Cross-Complainants Marriott Hotel Services, Inc. and HMH Marina LLC (collectively “Marriott Parties”) ask the Court to find that a settlement Plaintiff and Defendants/Cross-Defendants Hollywood Close-Ups, Inc. and David Sheehan entered into was not entered in good faith.

In a separate motion, Defendant/Cross-Defendant McNulty Nielsen asks the Court to find that a settlement Plaintiff and Defendants/Cross-Defendants Hollywood Close-Ups, Inc. and David Sheehan entered into was not entered in good faith.

LEGAL STANDARD

California Code of Civil Procedure section 877.6, subdivision (a)(1), provides, in relevant part, that, on a noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff . . . and one or more alleged tortfeasors or co-obligors . . . . “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., ; 877.6, subd. (c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc., ; 877, subd. (a).)

“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., ; 877.6, subd. (d).)

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources . . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

(192 Cal.App.3d 1251, 1260-1261 [citation omitted].)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6:

[A] rough approximation of plaintiffs total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc., supra, 38 Cal.3d at p. 499.) “[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.” (Ibid. [citation omitted].)

“The party asserting the lack of good faith, who has the burden of proof on that issue (; 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at pp. 499-500.)

“[A] court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor.” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166 [citation omitted].)

DISCUSSION

The Application for Determination of a Good Faith Settlement

On May 28, 2020, Defendants/Cross-Defendants Hollywood Close-Ups, Inc. and David Sheehan filed an application for determination of a good faith settlement.  On June 3, 2020, Plaintiff filed a notice of errata of the application clarifying that the parties seek a dismissal with prejudice of only Defendants/Cross-Defendants Hollywood Close-Ups, Inc. and David Sheehan.

The application states the following.  Defendants/Cross-Defendants Hollywood Close-Ups, Inc. and David Sheehan agreed to pay Plaintiff a $1,000,000.00 settlement.  (Application, pp. 1:27-2:4.)  Plaintiff alleges $718,028.17 in medical specials, but only $378,460.84 is awardable pursuant to Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4th 541.  (Application, p. 3:1-3:4.)  

The Marriott Parties’ Motion

The Marriott Parties argue the settlement was not made in good faith.  On February 25, 2019, Plaintiff alleged past medical special damages totaling $838,047.52.  (Wayne Decl., ¶¶ 20, 24, Exh. O.)  This amount does not include medical special damages sustained on October 10, 2019 following a left shoulder revision reverse total shoulder arthroplasty.  (Ibid.)  This amount also does not include Plaintiff’s future medical special damages, including a spinal fusion surgery recommended by Dr. Todd Moldawer.  (Wayne Decl., ¶¶ 20, 25, Exh. O.) ¶¶ 26-27.)  In sum, Marriott Parties allege that Plaintiff’s special damages, alone, amount to $1,583,647.52 plus the amount of Plaintiff’s left shoulder surgery and future special damages, including a spinal fusion surgery.

Plaintiff presents evidence that the $1,000,000.00 settlement represents Defendants/Cross-Defendants Hollywood Close-Ups, Inc.’s and David Sheehan’s policy limits.  (Kim Decl., 8, Exh. 3.)

The Court finds the settlement was entered in good faith.  The $1,000,000.00 settlement is almost two-thirds the Marriott Parties’ calculated special damages Plaintiff has incurred Howell v. Hamilton Meats & Provisions, Inc., supra, 52 Cal.4th 541).  This settlement falls within the ballpark of a good faith settlement.  This is especially so when considering the settlement represents a policy limit.

The Marriott Parties argue their cross-complaint for a breach of contract survives regardless of whether the settlement is found to be entered in good faith.  The Court agreesA finding that the settlement was entered in good faith does not absolve Defendant/Cross-Defendant Hollywood Close-Ups, Inc. from liability based on Defendant/Cross-Complainant HMH Marina LLC’s breach of contract cause of action.  (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1019-1020 [finding settlements entered in good faith do not eliminate liability based on express indemnity agreements].)

Defendant/Cross-Defendant McNulty Nielsen’s Motion

Defendant/Cross-Defendant McNulty Nielsen has not presented evidence showing the settlement was not entered in good faith.  Accordingly, Defendant/Cross-Defendant McNulty Nielsen has not met its burden.  (See Tech-Bilt, Inc., supra, 38 Cal.3d at pp. 499-500.)

CONCLUSION

The Marriott Parties motion is DENIED.

Defendant/Cross-Defendant McNulty Nielsen’s motion is DENIED.

The Marriott Parties and Defendant/Cross-Defendant McNulty Nielsen are ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.



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