Grapevine Emergency Physicians Medical Group, Inc. vs. Vu Huynh

Motion for Determination of Good Faith Settlement

Cal. Super. - 4th Dist.October 11, 2016

F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 L O S A N G E L E S , C A L I F O R N I A 8 0 0 6 7 (3 10 ) 25 5- 61 00 oo 0 9 S N nN A W N N O N N N N N N O N N e em em em em em e m mk e d e d CL NI A N WN Ea W N E S e X S N WN R W NN =m DAWN B. EYERLY (BAR NO. 185074) dawn.eyerly@ffslaw.com JOYCE H. MA (BAR NO. 274140) joyce.ma@ffslaw.com FREEMAN, FREEMAN & SMILEY, LLP 1888 Century Park East, Suite 1900 Los Angeles, California 90067 Telephone: (310) 255-6100 Facsimile: (310) 255-6200 Attorneys for Defendants VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; and NGUYEN KHUU, M.D., INC. ELECTRONICALLY FILED Superior Court of California, County of Orange 0213/2018 at 07:20:00 PM Clerk of the Superior Court By Aan Silva, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER GRAPEVINE EMERGENCY PHYSICIANS MEDICAL GROUP, INC., a California Professional Corporation; Plaintiffs, VS. VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D. IMRAM IMAM, M.D.; NGUYEN KHUU, M.D; NGUYEN KHUU, M.D., INC.; and DOES 1 through 50, inclusive, Defendants. 3692586.3 26106-800 3692586.3 26106-800 Case No. 30-2016-00880437-CU-BC-CJC Assigned for All Purposes to the Hon. Martha K. Gooding, Dept. C34 LODGED CONDITIONALLY UNDER SEAL NOTICE OF MOTION AND MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; AND NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT Concurrently lodged “Conditionally Under Seal” 1. Redacted Motion for Determination of Good Faith Settlement; 2. Declaration of Dawn B. Eyerly; 3. Redacted Declaration of Dawn B. Eyerly; and 4. [Proposed] Order RES ID#: 72753559 Date: April 23, 2018 Time: 1:30 p.m. Dept: C34 Action Filed; Trial Date: October 11, 2016 March 5. 2018 1 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; AND NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K EA ST , S U I T E 1 8 0 0 L O S A N G E L E S , C A L I F O R N I A S 0 0 6 7 (3 10 ) 2 5 5 - 6 1 0 0 oO NN S N nN A W N N N O N N N N N NN N N N e m em em e m em e m mm je m me d e d 0 NN S N nN A W N E S N N S N R W N e TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 23, 2018, at 1:30 p.m., or as soon thereafter as counsel may be heard, in Department C34 of the above-captioned Court, located at located at 700 Civic Center Drive West, Santa Ana, California 92701, Defendants VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; and NGUYEN KHUU, M.D., INC. (the “Settling Defendants”) will and hereby do move this Court for an order as follows: 1. Finding that the settlement (“Settlement”) entered into between Plaintiff GRAPEVINE EMERGENCY PHYSICIANS MEDICAL GROUP, INC. (“Plaintiff”) and the Settling Defendants, constitutes a good faith settlement pursuant to Code of Civil Procedure §§ 877 and 877.6; and os Barring pending and potential claims or actions against the Settling Defendants for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault, arising from or related to the allegations of Plaintiffs Complaint. This Motion is made on the grounds that the Settlement is fair, made in good faith, and constitutes a reasonable consideration for the compromise and release of Plaintiff’s claims, and is further made pursuant to Code of Civil Procedure §§ 877 and 877.6. This Motion is based on this Notice of Motion, the attached Memorandum of Points and Authorities, the Declaration of Dawn B. Eyerly filed concurrently herewith, all of the pleadings, files, and records in this proceeding, all other matters of which the Court may take judicial notice, and any argument or evidence that may be presented to or considered by the Court at the time of the hearing on this matter. DATED: February 13,2018 FREEMAN, FREEMAN & SMILEY, LLP By: DAWN B. EYPRLY JOYCE H. MA Attorneys for Defendants VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; and NGUYEN KHUU, M.D., INC. 3692586.3 26106-800 9 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 8 0 0 L. os A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 2 5 5 - 6 1 0 0 eo ® NN S N n t A W N N O O N N N N N N B N O N ee e m em em e m em me k mm md ed WW a S N W h hs W O N mE S Y 0 N N S E ER W N = e E DO MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In its Complaint, Plaintiff seeks monetary damages against the Settling Defendants for alleged breaches of their Independent Contractor Agreements (“ICAs”) and purportedly interfering with Plaintiff’s other contractual relationships. The Settling Defendants deny all of Plaintiff’s claims, both from a legal perspective and a factual one. Indeed, the ICAs specifically contain a exculpatory clause that relieves the signatories from all liability that may be owed to each other under all circumstances, and specifically precludes the recovery of any monetary damages from one other. This exculpatory clause formed one of the basis of the Settling Defendants” Motion for Summary Judgment filed against Plaintiff. Before hearing on the Motion for Summary Judgment, however, Plaintiff and the Settling Defendants reached a settlement taking into consideration of all of the evidence gathered from discovery in the case, the Settling Defendants’ Motion for Summary Judgment, and the cost of litigation. For these reasons as well as those stated in this Motion, the $105,000 Settlement reached between Plaintiff and the Settling Defendants is above and beyond what would accurately reflect the Settling Defendants’ potential proportionate share of liability in this case. Thus, a judicial determination that the Settlement was made in good faith is respectfully requested. IL BRIEF STATEMENT OF RELEVANT FACTS This action involves straightforward breach of contract issues’. The Settling Defendants are emergency room physicians who worked for Plaintiff as independent contractors pursuant to the ICAs. (Declaration of Dawn B. Eyerly (“Eyerly Decl.”), §, Ex. A [{ 2-6].) Plaintiff also had a contract with Western Medical Center Santa Ana (the “Hospital”) to staff the emergency room with physicians and physician’s assistants (the “Hospital Contract”). (Complaint § 10; Eyerly Decl., § 3, Ex. a [{ 4].) Plaintiff staffed the Settling Defendants at the Hospital. (Complaint § 11; ! Plaintiffs other causes of action are tort actions (breach of the covenant of fair dealing and economic interference with contractual relationship) both of which arise out of the same purported breaches. (Complaint JY 35-42.) 3692586.3 26106-800 3692586.3 26106-800 3 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; AND NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT No 0 9 S N nN A W N ( 3 1 0 ) 2 5 5 - 6 1 0 0 pe em ed pe d ed ed A WM bE W N m S L o s A N G E L E S , C A L I F O R N I A 9 0 0 6 7 Jk ~3 F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 N O N N N N N N N NM - ~~ & Wn A W N =m Oo eo ® Eyerly Decl., J 3, Ex. A [{] 4-8].) Six months before the Hospital Contract was to end, the Hospital terminated the Hospital Contract and replaced Plaintiff with another company. (Complaint 9 15, 18; Eyerly Decl., J 3, Ex. A [{ 8].) Plaintiff sued the Settling Defendants alleging that they were the reason why the Hospital Contract was terminated. (Complaint 18.) The Settling Defendants deny those claims. (See the Settling Defendants’ Answer to Complaint.) Plaintiff specifically alleges that the Settling Defendants breached the ICAs by, infer alia, engaging in communications with the Hospital adverse to Plaintiff’s relationship with the Hospital, purportedly in violation of paragraph 19 of the ICAs (“the Adverse Communication Clause”), which states: [Defendants] agree during the term of this Agreement not to participate in any discussion or negotiation with any Contracted Hospital, the sole purpose of which discussion is adverse to the relationship existing between [Plaintiff] and said Contracted Hospital, including any discussion or negotiations the sole purpose of which would be replacing or altering the agreement between [Plaintiff] and said Contracted Hospital, without the prior express written consent of [Plaintiff.] Breach of this provision shall entitle [Plaintiff] to immediate equitable relief in the manner of injunction and such further consequential damages a court of law may find. (Complaint 99 22-33, Exs. A-D.) Plaintiff also alleges that the Settling Defendants breached the ICAs by sharing confidential information with third parties, and that the Settling Defendants solicited each other to stop working for Plaintiff. (/d.) The Settling Defendants deny all such claims. In discovery, the Hospital's Person Most Knowledgeable confirmed that the Settling Defendants did not violate the Adverse Communication Clause when she testified that the Settling Defendants did not request Plaintiff's replacement and that the decision to terminate the Hospital Contract was a decision made by the Hospital — not by the Settling Defendants. (See Eyerly Decl., 9 4, Ex. B [Deposition Transcript of Suzanne Richards (“Richards Depo”), at 139:15-25, 142:3-5, 142:25-143:2].) Moreover, the third party that Plaintiff believed the Settling Defendants shared confidential information with testified that it received no such information from the Settling Defendants. Further, there was no testimony in support of Plaintiffs solicitation theory, and four of the Settling Defendants testified that they did not engage in any of the acts alleged by 3692586.3 26106-800 4 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 8 0 0 L O s A N G E L E S , C A L I F O R N I A 8 0 0 6 7 (3 10 ) 2 5 5 - 6 1 0 0 Oo 0 NN S N nr A W N = N O N O N O N O N N O N N N em mm mm je m e m em je m p m em ee W@W 3 S N Wn AR W N e S ® t RA W N =e Oo Plaintiff? It was ultimately confirmed that none of the Settling Defendants engaged in anything improper. Notwithstanding the fact that the Settling Defendants did not breach the Adverse Communication Clause, or otherwise engage in any of the wrongdoings alleged by Plaintiff, the ICAs specifically contain an exculpatory clause that relieves all parties from any liability to each other and precludes the recovery of any damages from each other in any event. The ICA’s exculpatory clause (“Exculpatory Clause”) provides: In no event will either party be liable to the other party for any special, incidental, indirect or consequential damages of any kind arising out of or in connection with this Agreement, whether based on breach of contract, tort (including negligence), or otherwise, even if informed in advance of the possibility of such damages. (Complaint Exs. A-D, pp. 10, bold added.) In November 2017, the Settling Defendants filed a Motion for Summary Judgment, or in the alternative, Summary Adjudication (“MSJ”) on numerous dispositive grounds, including on the basis of unconscionability and the Exculpatory Clause.? (Eyerly Decl., § 3.) On January 5, 2018, following many depositions in the case, the parties attended private mediation with Hon. Patricia L. Collins (Ret.) and entered into arm’s length settlement negotiations with each other. (Eyerly Decl. § 6.)* After more than 12 hours of mediation, a settlement was finally reached (the “Settlement”), and a Settlement Agreement was executed with the following terms relevant to this Motion: (a) each Settling Defendant is to pay Plaintiff Twenty-Six Thousand and Two Hundred Fifty Dollars ($26,250) for a combined total of One Hundred and Five Thousand Dollars 2 The fifth Settling Defendant has not been deposed. 3 Given the Settlement, the Settling Defendants withdrew their MSJ, but reserved their right to re- file should this Motion be denied. (Eyerly Decl., § 4.) * Significantly, approximately one week before the mediation, Plaintiff named a DOE defendant in the case, thus necessitating this Motion. 3692586.3 26106-800 5 MOTION OF DEFENDANTS VU HUYNH, D.0.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 25 5- 61 00 Oo 0 a S n A W N N N O N N N NBN N N N N NN N o e mm je m em em em em kd pe d e d @ NN S N WN R W N E S Y N S N A W N N = ($105,000) to fully resolve Plaintiff’s claims against the Settling Defendants; (b) the Settlement is contingent upon a judicial determination that it was a good faith settlement; (©) the Settling Defendants will use their best efforts to have their Application or Motion for Determination of Good Faith Settlement filed under seal; and (d) the terms of the Settlement are confidential, except to the extent that disclosures are necessary for this Motion.” (Id. at § 7.) Pursuant to the Settlement Agreement, the Settling Defendants hereby move for a judicial determination that the Settlement was made in good faith. III. THE SETTLEMENT IS IN GOOD FAITH AND MEETS THE TECH-BILT REQUIREMENTS. Parties to a settlement are entitled to a judicial determination that a settlement has been made in good faith. Code of Civil Procedure § 877.6 provides in pertinent part: (a)(1) Any party to an action in which 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 or other claimant and one or more alleged tortfeasors or co-obligors... (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. * kok (d) The party asserting the lack of good faith shall have the burden of proof on that issue. The court is authorized to determine the good faith of the settlement entered into between Plaintiff and the Settling Defendants herein. If the settlement is found to be in good faith, the determination relieves the Settling Defendants from further liability for contribution, comparative negligence or fault. > The Settlement Agreement contemplates other disclosure exceptions not relevant to this Motion. (Eyerly Decl. § 7, fn. 2.) 3692586.3 26106-800 6 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S u i T E 1 9 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 25 5- 61 00 oe 0 3 S N n t A W N N O O N O N N N N DN NN N N mm mm em em e m em em mk ed ed QW J S N Wn A W N E S N S N B R A W N = D Whether a settlement is in good faith depends upon whether it is consistent with public policy favoring equitable sharing of costs among tortfeasors. The settlement must be within the “reasonable range” of the settling defendants’ share of liability for the complaining party or parties’ injuries, taking into consideration the facts and circumstances of the particular case. Tech- Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499. The trial court is given “substantial latitude in determining the good faith of a settlement.” Id. at 450. The California Supreme Court has set forth guidelines used to determine when a settlement has been made in good faith: The intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of the plaintiff’s total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of the settlement proceedings among plaintiffs,’ and the recognition that settlor should pay less than he would if he were found liable after trial. Other relevant considerations include financial condition and insurance policy limits of the settling defendant, as well as the existence of collusion, fraud or tortious conduct aimed to insure the interests of non-settling defendants. Id. at 499. The settlement need not be a perfect or nearly perfect proportionate share of liability, but will be deemed to be in good faith so long as it is “within the ballpark” of a settling defendant’s proportionate share of liability. Id. A review and analysis of the applicable Tech-Built factors demonstrate that a good faith settlement was reached in this case. A. The Proposed Settlement Is In Good Faith. In this case, Plaintiff claimed that the Hospital Contract was prematurely terminated due to the Settling Defendants’ purported conduct. The Hospital Contract would have ended by its own terms on July 1, 2015. Instead, it was terminated by the Hospital six (6) months early -effective December 31, 2014. Therefore, any damages that Plaintiff may have suffered is limited to six (6) months of lost profits, which is estimated from Plaintiff’s discovery responses as being worth 3692586.3 26106-800 7 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 L o s A N G E L E S , C A L I F O R N I A S 0 0 6 7 (3 10 ) 25 5- 61 00 Oo 0 9 S N Nh A W N N O O N N N N N N N N em em em em mm em p m mk nd je C I N N ER W O N E S S 0 N a S NN A W N $1,416,571.7 In this Settlement, Plaintiff will receive $105,000, which is above and beyond what would accurately reflect the Settling Defendants’ proportionate share of liability, even if found liable, as discussed below. A “good faith settlement” does not call for perfect or even nearly perfect apportionment of liability. See North County Contractor’s Assn. v. Touchstone Ins. Servs. (1994) 27 Cal. App.4™ 1085, 1090-1093. All that is necessary is that there be a rough approximation between the settling tortfeasor’s offer of settlement and his proportionate share of liability.” See Bay Devel., Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1027-1028. Plaintiff’s claim to damages rests entirely on its allegation that (1) the Settling Defendants were the reason why the Hospital Contract was prematurely terminated, and (2) the Adverse Communication Clause is enforceable and entitles Plaintiff to damages. Neither theories for recovery have merit as discussed infra. The Settling Defendants deny all of Plaintiff’s allegations against them. The facts concerning these issues are vigorously disputed between Plaintiff and the Settling Defendants. The Settlement was reached based upon the parties’ consideration of the relative merits and defenses to the claims as well as the costs and risks of proceeding to trial. 1. The Defendants Were Not The Reason The Contract Was Terminated. As an initial matter, the Settling Defendants were not the reason the Hospital Contract was terminated six (6) months early. Indeed, the Hospital itself testified that the “[ The Hospital] made the decision to cancel the contract” — it was not a decision made by the Settling Defendants. See Eyerly Decl., § 5, Ex. B [Richards Depo, at 139:15-25].) The Hospital further clarified that the decision to change the contract was simply a “step to improve the Hospital.” (Id. at 165:13-15.) 7 This number is taken from Plaintiff’s responses to Form Interrogatories, wherein it identified the figure $2,833,142.00 as its income earned from the Hospital Contract in the year 2014. (Declaration of Dawn B. Eyerly (“Eyerly Decl.”), 9, Ex. C, p. 7.) The information was designated as “Confidential” pursuant to the Stipulated Protective Order, and the Settling Defendants submit this information “Conditionally Under Seal” and in conjunction with their Application for Order to File Defendants” Motion For Determination of Good Faith Settlement and Any Briefs in Opposition and Reply Thereto Under Partial Seal in compliance with paragraph 7 of the Stipulated Protective Order. 3692586.3 26106-3800 8 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , ti p 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 25 5- 61 00 Ce 9 S N nn A W N = N O O R N N O N RN N N N O N ee em em je m pm em em mk nd e d @ I SN WN EAE W O N E S O N N N E W N = As such, there is little connection — if any — between any alleged conduct by the Settling Defendants, and any resultant damages in any case. 2. The Exculpatory Clause Precludes Any Liability and Recovery of Damages. Even aside from the factual issues surrounding the case, from a legal perspective, the case against the Settling Defendants was flawed, as the Exculpatory Clause expressly bars Plaintiff’s claims against the Setting Defendants for monetary damages. The Exculpatory Clause provides: In no event will either party be liable to the other party for any special, incidental, indirect or consequential damages of any kind arising out of or in connection with this Agreement, whether based on breach of contract, tort (including negligence), or otherwise, even if informed in advance of the possibility of such damages. Contractual clauses limiting liability have long been recognized as valid and enforceable in California. Food Safety Net Services v. Eco Safe Systems USA, Inc. (2012) 209 Cal. App.4th 1118, 1126. In Food Safety, the California Court of Appeal analyzed and applied an exculpatory clause almost identical to the Exculpatory Clause in this case. The pertinent clause in Food Safety stated in relevant part: In no event shall [food safety] be liable for indirect, special, incidental or consequential damages including (but not limited to) damages for loss of profit or goodwill regardless of (a) the negligence (either sole or concurrent) of [food safety] and (b) whether [food safety] has been informed of the possibility of such damages...” The Appellate Court upheld the above clause, granting summary judgment, and barred any liability for damages for Plaintiff's breach of contract, breach of implied covenant of good faith and fair dealing, and negligence claims. The Court held that the above clause limited Food Safety's liability for “any ... damages whatsoever arising out of the study...” (Italics added.) That included the claim for breach of contract as well as that for the purported breach of the covenant of good faith implied within the contract (as such claims are not tortious outside the context of insurance policies) as well as the claim for negligence. Id. at 1127. The Food Safety Court stressed the words, “[i]n no event” as being “broad and unqualified language,” and therefore, ruled 3692586.3 26106-800 9 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 25 5- 61 00 oe 0 NN S N n t A W N N O O N O N N N N N N O N em em em e m mm em je m ed e d je GC N N N A W N E S 8 0 d S N R A W N = that the clause encompassed Eco Safe's claims for breach of contract, bad faith, and negligence. Id. The Food Safety case is directly on-point. The ICAs here include a liability limiting clause that provides that “in no event” shall the parties be liable to each other for “any special, incident, indirect or consequential damages of any kind arising out of or in connection with [the ICAs], whether based on breach of contract, tort (including negligence, or otherwise...).” Like in Food Safety, this language is sufficiently broad and unqualified to encompass all of Plaintiff’s causes of action, which are solely based on contract and tort, just as is contemplated by the language itself. The Exculpatory Clause not only limits liability, but also expressly prohibits the recovery of the precise damages Plaintiff seeks — consequential damages. Thus, Plaintiff had no viable claim for liability or damages against the Settling Defendants, and the settlement amount of $105,000 therefore greatly exceeds the Settling Defendants’ potential proportionate share of liability. The Settling Defendants filed the Motion for Summary Judgment on this issue — as well as the unconscionability of another provision of the ICA — that was set to be heard immediately following the successful mediation of the case. This case has been contentious and active for over a year. During that time, numerous depositions were taken, and extensive written discovery was exchanged. The Settling Parties have had ample time to evaluate the case’s strengths and weaknesses. This extended analysis has led the Settling Parties to the proposed settlement. B. A Settling Defendant Should Pay Less than After Trial. It is entirely possible that the Settling Defendants would have been successful with their pending Motion for Summary Judgment. However, even if not, it is likely that a jury would have found no liability as to the Settling Defendants and awarded Plaintiff no damages based on the aforementioned facts and evidence. Indeed, even if a jury were to find the Settling Defendants liable, it is unlikely that a jury would hold them responsible for paying the lion's share of Plaintiff’s damages in any case. Moreover, it is well-established that a settling defendant should 3692586.3 26106-3800 10 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D,; NGLIYEN KHUITT, M.D, INC. FOR ORDER DETERMINING GOOD FATTH SETTI.EMENT F R E E M A N , F R E E M A N & S M I L E Y , Li p 1 8 8 8 C E N T U R Y P A R K E A S T , S u i t e 1 9 0 0 L O S A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 2 5 5 - 6 1 0 0 Lo 0 a S N nh es W N N O O N O N O N N N N N O N em em em e m em mm e m em em ee C0 NN S N WN A W N mE S C N N N N R W N = pay less than what he or she might be required to pay after trial. Accordingly, the $105,000 settlement is a fair compromise. C. The Settling Defendants Have Limited Financial Assets and Have No Insurance. The Settling Defendants are emergency room doctors with families, mortgages, student loans, and/or other financial obligations. They do not have unlimited funds to pay above and beyond the settlement amount. Moreover, no insurance policy is applicable to this case. D. The Settlement Was Reached Without Collusion, Fraud, or Tortious Conduct. The Settlement was reached by way of arm’s length negotiations via the parties’ respective counsel, with the assistance of a mediator. (Eyerly Decl. § 6.) It is both fair and equitable. Furthermore, the parties reached the Settlement without any intention of collusion, fraud, or tortious conduct. (/d. at 9 8.) There is no basis upon which any party can contend that the Settlement has a negligible value. The sole non-settling party has not filed a cross-complaint in this action and there are, therefore, no existing express cross-claims being vitiated by the Settlement. IV. THE COURT MAY PROPERLY DISMISS ANY PENDING OR FUTURE CROSS- COMPLAINTS FOR INDEMNITY AND/OR CONTRIBUTION AGAINST THE SETTLING DEFENDANTS Code of Civil Procedure § 877.6 permits the court to bar any pending or future claims against a settling tortfeasor for partial or comparative indemnity and/or equitable comparative contribution once it determines that the parties have reached a settlement in good faith. Both the California Legislature and California courts have long embraced the policy of encouraging reasonable settlements and completely extinguishing any litigation pertaining to the matters at issue. Tech-Bilt, supra, 38 Cal.3d at 507. Because the Settling Defendants’ settlement with Plaintiff is in good faith, all claims for indemnity and/or contribution arising out of Plaintiff’s claims should be barred.. See City of Grand Terrace v. Sup. Ct. (1987) 192 Cal.App.3d 1261. 3692586.3 26106-800 11 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUT, M.D; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 L o s A N G E L E S , C A L I F O R N I A 9 0 0 6 7 (3 10 ) 25 5- 61 00 ee 0 NN S n A W N N N N O N N N O N N O N ee em em em je m em em e d ed ea J AN Wn A W O N E O 8 0 g N R W N - = E V. CONCLUSION Based on the foregoing, the Settling Defendants respectfully requests that the Court find that the Settlement reached between Plaintiff and the Settling Defendants was made in good faith, and bar any and all pending and potential claims or actions against the Settling Defendants for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault, arising from or related to the allegations of Plaintiff’s Complaint. DATED: February 13,2018 FREEMAN, FREEMAN & SMILEY, LLP By: a5 DAWN B. EYERLY JOYCE H. MA Attorneys for Defendants VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; and NGUYEN KHUU, M.D., INC. 3692586.3 26106-800 12 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT oo N N n A W N (3 10 ) 25 5- 61 00 pi J J pt pt pk uk aA Wn A W N = os L o s A N G E L E S , C A L I F O R N I A S 0 0 6 7 po " <3 F R E E M A N , F R E E M A N & S M I L E Y , LL P 1 8 8 8 C E N T U R Y P A R K E A S T , S U I T E 1 9 0 0 N O N N N N N NN N N o e mm ® 9 S N WN A W N Oo 8 ® PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. [ am employed in the County of Los Angeles, State of California. My business address is 1888 Century Park East, Suite 1900, Los Angeles, California 90067. On February 13, 2018, I served true copies of the following document(s) described as [FILED CONDITIONALLY UNDER SEAL] NOTICE OF MOTION AND MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; AND NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT on the interested parties in this action as follows: SERVICE LIST Andrew H. Selesnick, Esq. Attorneys for Plaintiff GRAPEVINE Damaris L. Medina, Esq. EMERGENCY PHYSICIANS MEDICAL Buchalter, APC GROUP, INC. 1000 Wilshire Blvd., Suite 1500 Los Angeles, CA 90017-1730 Tel: (213) 891-0700 Fax: (213) 896-0400 email: aselesnick@buchalter.com dmedina@buchalter.com Tamara S. Freeze, Esq. Attorneys for Defendant JOSEPH KIM, M.D. Robert A. Odell, Esq. Workplace Justice Advocates, PLC 9891 Irvine Center Drive, Suite 200 Irvine, CA 92618 T: (949) 378-9794 email: tfl@workplacejustice.com BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed to the persons at the addresses listed in the Service List and placed the envelope for collection and mailing, following our ordinary business practices. Iam readily familiar with Freeman, Freeman & Smiley, LLP's practice for collecting and processing correspondence for mailing. On the same day that the correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on February 13, 2018, at Los Angeles, California You, A [0 do i 7 $kérry[Ricondo 3692586.3 26106-800 MOTION OF DEFENDANTS VU HUYNH, D.O.; GAGANDEEP GREWAL, M.D.; IMRAN IMAM, M.D.; NGUYEN KHUU, M.D.; NGUYEN KHUU, M.D., INC. FOR ORDER DETERMINING GOOD FAITH SETTLEMENT