Filed 12/1/15 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE
DOLE FOOD COMPANY, INC. , et al. , Petitioners,

v.

SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;

SHELL OIL CO MPANY et al.,

Real Parties in Interest. B262044
(Los Angeles County Super. Ct. No s . NC053643 , BC499369 [related case Nos. NC053684, NC053766, BC433429, BC433430, BC433656, BC433657, BC454472, BC544786] )

Petition for writ of mandate from an order of the Superior Court of Los Angeles County, William F. Highberger, Judge. Petition denied. Gibson, Dunn & Crutcher, Andrea E. Neuman, Thomas A. Manakides and
William E. Thomson for Petitioners

. Frederick Bennett for Respondent

. Girardi Keese, Thomas V. G irardi, Robert W

. Finnerty and Christopher T. Aumais; Law Offices of Martin N. Buchanan and Martin N. Buchanan for Real Part ies in
Interest Adelino Acosta et al. and City of Carson. Morgan, Lewis & Bockius , David L. Schrader and Deanne L. Miller for Real
P arties in Interest Shell Oil Co mpany and Equilon Enterprises LLC.

_________________________2

This mass tort litigation arises out of an environmental investigation which revealed that soil beneath a housing tract in Carson, California, was contaminated wit h residual petroleum hydrocarbons. In this writ proceeding challenging the trial court’s determination of good faith settlement s , we are called upon to address whether a government

- ordered environmental cleanup was part of the settlement consideration, an d whether the good faith settlement could be approved without an individualized allocation of the settlement proceeds among the numerous plaintiffs and between their economic and noneconomic damages. Petitioners Dole Food Company, Inc. (Dole) , Oceanic Prop erties, Inc. (Oceanic) , and Barclay Hollander Corporation (Barclay Hollander) (collectively, Developer Defendants) seek a writ of mandate directing respondent superior court to vacate its order approving good faith settlement s (Code Civ. Proc., § 877.6) 1 b etween codefendants Shell Oil Company (Shell) and Equilon Enterprises LLC dba Shell Oil Products US (Equilon) (collectively S hell) and approximately 1,491 individual plaintiffs (Adelino Acosta et al.) (collectively, Plaintiffs) as well as plaintiff City of Carson (Carson). We issued an order
to show cause. The essential issues presented are twofold. First, we address whether the trial court erred in approving the good faith settlements without first calculating the monetary value of Shell’s obligation to comply with a cleanup and abatement order of the
California Regional Water Quality Control Board (Water Board) to implement a Remedial Action Plan (RAP) which allegedly will cost Shell $146 million

. The nonsettling Developer Defendants contend the exclus ion of the cost of the RAP from the
settlement valuation is collusive and will enable Plaintiffs to obtain a windfall, by reducing the amount that will be set off against the nonsettling defendants’ liability.
Second , we address whether the trial court er red in approving the $90 million good faith

1 All further statutory references are to the Code of Ci vil Procedure, unless otherwise specified.3

settlement between Plaintiffs and Shell without an allocation of the settlement proceeds among the various P laintiffs, and between their economic and noneconomic damages. 2 We conclude that Shell’s compliance wit h the RAP, which was mandated by the Water Board pursuant to the state’s police power s , was not part of the settlement consideration, and therefore should not be included in the valuation of the good faith
settlement. Although the trial court gave some we ight to the value of the RAP remediation in approving the good faith settlements, the error was harmless ; o n the record presented, the $90 million monetary payment, standing alone, was well within the range of Shell’s proportionate liability. Finally, the determination of good faith settlement did not require an allocation of the $90 million settlement consideration among the 1,491 individual Plaintiffs and between their economic and noneconomic damages. Such individualized allocations , which would have ne cessitated 1,491 mini

- trials in this matter, are not required as part of the good faith settlement process.

FACTUAL AND PROCEDURAL BACKGROUND
1. Parties

. The petitioners, the three Developer Defendants, are co defendants in two related actions currently pe nding in respondent superior court, Adelino Acosta, et al. v. Shell Oil Company, et al . (L.A. Super. C t. No. NC0536 4 3 and related cases) (the Acosta action)
and City of Carson v. Shell Oil Company, et al . (L.A. Super. C t. No. BC49936 9 and related cases) (t he Carson action)

. Real parties in interest are: co defendants Shell a nd Equilon , whose joint motion
for determination of good faith settlement was granted by the trial court; approximately

2 The allocation is of concern to the nonsettling defendants because under Proposition 51, “ ‘only that part of the settlement value attributable to plaintiff’s economic damages may be credited against the nonset tling defendants’ liability.’ ” ( Espinoza v. Machonga (1992) 9 Cal.App.4th 268, 275 ( Espinoza ); see generally , Bostick v. Flex Equipment Co

. , Inc

. (2007) 147 Cal.App.4th 80, 89

- 90 .)4

1,491 individual plaintiffs in the Acosta action (Plaintiffs), who settled their claims against Shell; and plaintiff Carson, which also settled its claims against Shell.

2

. S ale and re d evelopment of the site. The 1,491 individual plaintiffs lived or worked in or near the Carousel housing tract, a neighborhood of approxi mately 285 homes in Carson, California. Between the 1920’s and the early 1960’s, Shell owned and operated three crude oil storage reservoirs,
known as the Kast Tank Farm, at the site which later was developed as the Carousel tract. It is alleged that at least one of the storage tanks was leaking its contents into the soil, causing the site to become contaminated with toxic substances. 3 In October 1965, Shell entered into an agreement to sell the land to R ichard Barclay and his associates (Barclay) , a grou p of residential developers who intended to convert the property into a residential subdivision. Shell transferred title to the property
in October 1966. In preparation for the change in use, t he oil storage reservoirs were decommissioned, the reservoir walls were torn down and buried on site, and the land was graded for home construction. 4 The land was rezoned from industrial to residential, and the Carousel homes were constructed and sold by the early 1970’s.

3

. Cleanup and a batement o rder against Sh ell

. In 2008, after discovering contamination nearby, the Water Board directed Shell to conduct environmental testing at the Carousel tract. These investigations revealed the presence of petroleum hydrocarbons in the areas where Shell’s former oil reservo irs had been located. In March 2011, the Water Board issued a c leanup and a batement o rder to Shell, directing it to submit a proposed remediation plan. This order was based on Shell’s “ ownership of the former Kast Property Tank Farm ” and its “former oper ation of a petroleum hydrocarbon tank farm at the Site.”

3 Shell denies it was aware that oil was leaking into the soil.

4 There is a dispute as to Shell’s role in preparation of the site.5

After submitting an initial RAP that was rejected, Shell submitted a revised RAP
in June 2014 , with an addendum in October 2014. 5 Under the revised RAP , Shell will, inter alia, excavat e five to ten feet beneath the homes, following excavation will install a vapor extraction a nd venting mechanism , and will institute comprehensive long

- term monitoring. In addition, Shell will provide temporary relocation assistance in connection with implementing the R AP , and will com p ensate Carousel homeowners to ensure they
receive fair market value if the y elect to sell their homes. 6 Shell’s corporate representative , William Platt, has estimated it will cost Shell $146 million to implement the RAP.
4

. Superior cour t proceedings

. Apart from the Water Board proceeding, there are three pending actions in the superior court relating to Shell’s use and sale of the site.

a. The Acosta a ction

. In October 2009, seventeen months after the Water Board ordered Shell to cond uct an investigation of the site, the numerous individual plaintiffs filed their lawsuit. The y are current and former Carousel homeowners and other persons who lived or worked in the vicinity of the site. The operative second amended complaint (SAC) , file d in May 2011, named as
defendants Shell and Equilon, the alleged purchasers of the Kast property in 1922, as well

as three successors to the original developer s , namely, Barclay Hollander, later acquired by Oceanic and then Dole. The SAC asserted 12 caus es of action against all the defendants, to wit: negligence, intentional infliction of emotional distress, strict liability

5 According to real parties , the Water Board recently approved the revised RAP.

6 The Water Board staff subsequently recommended that Barclay Hollander, as a successor to the past owner and dev eloper of the property, be named as a discharger and additional responsible party to the 2011 cleanup and abatement order. According to the returns to the petition, the Water Board recently adopted the staff’s recommendation, thus making Barclay Hollander responsible for contributing to the cost of the board

- ordered remediation.6

for ultra

- hazardous activity, permanent trespass, continuing trespass, public nuisance, private nuisance, fraudulent concealment, n egligent misrepresentation, public continuing nuisance causing special injury, public permanent nuisance causing special injury, and
fraudulent and intentional deceit. Plaintiffs prayed for monetary and injunctive relief , including remediation , for their alleged injuries to property, and monetary damages for alleged personal injuries, including medical expenses, emotional distress, and medical monitoring. As against Shell, the SAC all ege d, inter alia, that Shell’s liability arises out of its ownership and operation of the leaking oil r eservoirs, that Shell sold the s ite to the developer s “without fully disclosing the true extent of the dangerous contamination
, ” and that “[d]espite [its] superior knowledge of [the] hazards and likely injury to individuals

su ch as PLAINTIFFS, [Shell] failed to disclose [its] knowledge and/or take any actions to warn subsequent purchasers of the [presence of] toxic chemicals.”
The trial court subsequently granted Shell’s motion to strike Plaintiffs’ claims for property damage as against Shell on statute of limitations grounds. (Code Civ. Proc., § 338.) 7

b. The Carson a ction

. In January 2013, Carson , represented by the same law firm representing Plaintiffs, filed suit against Shell and Developer Defendants alleging public nui sance and inverse
condemnation. By way of relief, Carson requested “ full and total abatement of the contamination down to approximately 40 feet below the Carousel neighborhood.” Before the parties engaged in any discovery, the trial court stayed the Cars on action.

7 The parties differ as to whether the trial court’s order eliminated all property damage claims against Shell, or whether Plaintiffs’ claims against Shell for continuing nuisance and continuing trespass survived that ruling. We note that at the hearing on the motion for determination of good faith settlement, the trial court stated “Shell is out on the property damages; Shell is in on personal injury.” The trial court then added
, however, “[ t ] here may be some more , but the heart of it is

. . . personal injury.” (Italics added.)7 c. The indemnity action and cross

- action. In May 2014, Shell sued Barclay Hollander and others, seeking indemnity and
contribution with respect to the Acosta action , the Carson action, and the cost of complying with Water Board orders. Shell alleged it had already incurred more than $40 million in costs and expenses for site investigation and remediation.
In October 2014, Barclay Hollander filed a cross

- complaint against Shell , seeking indemnity and contribution on the ground that Shell cont aminated the s ite and failed to
disclose th e contamination. Barclay Hollander also sought a declaration that Shell was not entitled to indemnification.
5

. Shell’s s ettlements in the Acosta and Carson actions.
In October 2014, Shell reache d settlements w ith Plaintiffs and Carson, with an
effective date of November 10, 2014.

a. The Acosta settlement agreement

. The Acosta settlement agreement requires Shell to pay Girardi Keese (counsel for both Plaintiffs and Carson) $90 million in “full and final settl ement of all Claims of all
Plaintiffs , ” with Girardi Keese to be “solely responsible for determining the process by
which the Settlement Funds are allocated ” among the Plaintiffs.
Under the terms of the Acosta settlement agreement, Shell would deliver
90 p ercent of the settlement funds to Girardi Keese once certain conditions are satisfied, including: Girardi Keese ’s deliver y to Shell’s counsel of signed individual releases from at least 90 percent of the individual Plaintiffs ( with Girardi Keese remaining under a continuing obligation to secure releases from the remaining Plaintiffs ); issuance of a final order approving all settling minors’ compromises; issuance of a final order determining the settlement to be in g o od faith; and the filing of executed req uests for dismissal with prejudice of the Acosta litigation and the Carson action, with the parties to bear their own
fees and costs.
The Acosta agreement expressly addresses the Water Board proceeding. At paragraph 3. 6 , i t requires Plaintiffs and Girardi Keese “to cooperate in good faith in the8

ongoing regulatory proceedings overseen by the Water Board , ” and requires Plaintiffs to “waive and release any rights to challenge any decision of the Water Board in evaluating and approving the RAP for the Carouse l Tract.” It also includes an acknowledgement that the “Agreement fully and fairly addresses and compensates [Plaintiffs] for any and all claims against Shell for alleged nuisance

. . . and/or any other RAP

- related impacts created by the alleged contamina tion of the Carousel Tract and implementation of the
RAP.” Paragraph 3.7 thereof requires Plaintiffs to provide access for investigation and RAP implementation, and provides that “Shell’s work on the Carousel project shall continue to be done only in acco rdance with Water Board

- approved work plans.” To enforce these provisions, the agreement requests that the superior c ourt “retain jurisdiction over the Parties and the Actions for purposes of finalizing and enforcing the Agreement, including, without limi tation, the provisions requiring cooperation in the ongoing regulatory proceedings overseen by the Water Board, access to properties, and implementation of the RAP.”
To determine the allocation of the $90 million settlement proceeds among the 1,491 individ ual Plaintiffs, Shell and Plaintiffs stipulated to , and the trial court ordered, the appointment of retired Justice Edward Panelli as Special Master to oversee the
settlement and subsequent a pportionment of the funds. 8
The Acosta settlement agreement does not differentiate between economic and noneconomic damages. If there were a pro rata distribution, each plaintiff would receive approximately $60,362 minus attorney fees and costs. Once the Acosta settlement is funded, Justice Panelli will make an alloca tion to each plaintiff, based upon the plaintiff’s inclusion in one of four categories: cancer claims; non

- cancer personal injury claims; medical monitoring and/or fear of cancer only; or property damage without physical personal injury.

8 According to Plaintiffs’ counsel, in mass tort cases it is common practice for the parties to agree upon a global settlement with a future allocation among the plaintiffs to be made by plaintiffs’ counsel or a retired judge or mediator.9 b. The Carson settlement agreement.
Unlike the Acosta settlement, the Carson settlement did not include a cash payment

. Rather, it consisted of mutual releases of all claims (although it does not appear that Shell had asserted any claims against Carson) and a waiver o f costs. The
Carson settlement defined the term “claim(s)” as specifically exclud ing “any benefits provided for in the revised [RAP] , ” and it included a representation by Shell that “the RAP is separate from this Agreement and any other settlement agreeme nts in this
Action. ” The Carson settlement require d Carson to “cooperate in good faith” in the Water Board proceedings and the “implementation of the RAP
, ” and sought retention of jurisdiction by the superior court in “implementation of the RAP” and enfor cement of the settlement agreement.
6

. Good faith settlement proceedings

.

a. Shell’s m otion for good faith settlement

. On December 12, 2014, Shell filed a motion for an order determin ing that the two settlement s, between Plaintiffs and Shell, and Cars on and Shell, were entered into in good faith, so as to bar any claims against Shell for indemnity or contribution arising out of
this matter. Shell asserted its payment of $90 million to settle Plaintiffs’ clams, along with Carson’s dismissal of its publ ic nuisance action in exchange for a mutual release and waiver of costs, w ere well within the reasonable range of Shell’s alleged proportionate liability. Shell emphasized that a good faith settlement does not require “ perfect or even nearly perfect appor tionment of liability. In order to encourage settlement, it is quite proper for a settling defendant to pay less than his proportionate share of the anticipated damages. What is required is simply that the settlement not be grossly disproportionate
to th e settlor ’s fair share. ” ( Abbott Ford

, Inc. v. Superior Court (19 87 ) 43 Cal.3d 858,
874

- 8 75 ( Abbott Ford ) .) Further, a plaintiff ’ s claims for damages are not determinative in finding good faith ; rather, the court is called upon “ to make a ‘ rough approxim ation ’ of what the plaintiff would actually recover ” ( West v. Super ior Court (1994) 27 Cal.App.4th10

1625, 1636 ( West ) ) , with the evaluation to be made “on the basis of information available at the time of settlement.” ( Tech

- Bilt, Inc. v. Woodward

- Clyde & A ssociates (1985)
38 Cal.3d 488, 499 ( Tech

- Bilt ) .) Shell asserted that notwithstanding the sizable claims by the numerous P laintiffs,
it had “multiple defenses to liability that must be factored. Shell sold the property in
its as

- is condition, with the cr ude oil storage reservoirs in place, to the Developer Defendants, who took responsibility to decommission the reservoirs and remove residual wastes. Property damage claims cannot be recovered against Shell in light of the Court’s prior ruling and Shell’s RAP

- related efforts. Personal injury claims are likely subject to challenge on general and specific medical causation grounds, among other defenses. In addition, there have been no expert designations or discovery yet on the issue of
Plaintiffs ’ alleged d amages. [¶] Given the facts and circumstances of these cases where liability is contested and fault lies with the non

- settling Developer Defendants, Shell ’ s $90 million settlement payment is well ‘ within the ballpark ’ of its potential liability. It

cann ot be shown that the settlement is ‘ grossly disproportionate ’ to what a reasonable person at the time of settlement would estimate Shell ’ s proportionate liability to be. ” The supporting declaration of Attorney Deanne Miller stated in part: The trial

cour t randomly selected 50 test plaintiffs, and the pool subsequently was narrowed to
35 individuals . Extensive fact discovery was conducted regarding each of the test plaintiffs , which revealed their claims were subject to substantial potential defenses.
Th ere were no clusters of disease among the t est p laintiffs, most of whom claim ed a variety of common illnesses and ailments. Further, although no expert discovery ha d been conducted yet on causation , establishing causation would be challenging for
Plaintif fs. For example, one of the test plaintiffs was a 79 year old man who asserted a claim for prostate cancer. However, medical literature indicates that 80 percent of men who reach age 80 have prostate cancer. Another test plaintiff decedent allegedly die d of stomach cancer; however, her medical records and treating physician’s testimony indicated that she was never diagnosed with stomach cancer. Other test plaintiffs claimed11

a variety of common illnesses and ailments such as asthma, allergies, headaches, diabetes, heart conditions and high blood pressure, but the causal connection between those diagnoses and environmental conditions in the Carousel neighborhood were “tenuous at best.” With respect to Shell’s alleged liability vis

- à

- vis Developer Defendan ts, the Miller
declaration relied, inter alia, on a letter dated December 1, 1965, indicating that Barclay sought permission from Shell, prior to close of sale, to conduct “site clearing work” on the property. The Barclay letter stated, “We would like to begin immediately to remove the liquid waste and petroleum residues f rom the property.

. . . We estimate it will take about three months for completion. [¶] As we discussed, the removal of waste should improve the value of your property and, therefore, t here should be no exposure to Shell Oil Company other than possible public liability, which may be incurred during the course of the work. To protect Shell against this possibility, we will furnish you with liability insurance in such form as you may requ ire.” Miller also cited a March 1966 letter from Pacific Soils Engin e ering, Inc. to the original developer s , indicating the soil beneath one of the reservoirs at the Kast site was “highly oil stained
, ” and that the soils had a “petroleum odor

. ”
The Mille r declaration also asserted Plaintiffs were incapable of prevailing against Shell on their fraud claims, in that discovery conducted to date indicated that Plaintiffs
had no interaction with Shell

-- they purchased their homes from the original developer s

. Thus, Plaintiffs did not rely on any statements by Shell, let alone any misrepresentation by Shell.
b. Developer Defendants’ opposition to the motion for good faith
settlement. In opposition, Developer Defendants contended that the settling parties’ joint attempt to exclude from the settlement consideration the $146 million value of the RAP
was a “ transparent effort to improperly minimize Developer Defendants’ offset. ”12

Developer Defendants argued that the trial court “ should either include the full a mount of the remediation in determining good faith or deny Shell’s motion. ” 9 Developer Defendants attacked the Acosta settlement as lacking in good faith. They contended Shell failed to show the $90 million settlement amount, which represented less than o ne percent of Plaintiffs’ $11 billion in alleged damages, was within the ballpark of Shell’s proportionate liability. 10 Developer Defendants also contended the Carson settlement was not in good faith because it purported to exclude Shell’s costs in implemen ting the RAP. By excluding the
value of the RAP, the Carson settlement “is a walk away in which Shell is not paying a dime,” even though the Carson action sought abatement of the contamination to a depth of 40 feet below the Carousel neighborhood. Develop er Defendants argued that th e entire settlement consideration must be assigned a dollar value, including any non

- monetary relief. “[A]ny settlement that is not purely cash must be assigned a dollar value.” Here, by excluding the value of the RAP
remediat ion , the settlement failed the good faith standard.
Deve l oper Defendants also argued that Shell’s failure to allocate the settlement proceeds was fatal to a good faith determination. “There are 1,491 individual Plaintiffs with varying claims. Allocating the settlement proceeds among them and their alleged injuries is necessary to ensure that the offset, and thus the settlement, are fair to Developer Defendants.” They contended the trial court could not determine good faith
without knowing how the settlem ent proceeds were being allocated between Plaintiffs’
economic and non

- economic damages, and among the 1,491 i ndividual plaintiffs.

9 In the court below, Developer Defendants offered to stipulate to a good faith settlement determination if Shell and Plaintiffs included the $146 million value of the RAP in the economic damages offset.

10 Plaintiffs deny they sought $11 billion in damages.13 c

. Hearing and trial court’s ruling. On January 30, 2015, the matter came on for hearing. After hearing arguments of

co unsel, the trial court granted the motion for good faith settlement consistent with its tentative ruling, which provided in substance:

“ Moving parties have set forth the particulars of their settlement with plaintiffs and the current state of knowledge ab out their commitment to abate the underlying pollution nuisance. Some aspects of the contract are definite (e.g. the commitment to pay the many plaintiffs and their counsel $90M in the aggregate) whereas some aspects of the settlement are necessarily impr ecise estimates, e.g. the cost/value of Shell ’ s commitment to perform abatement as directed by the [Water Board]. There are over 1 ,400 plaintiffs and many separate parcels of real estate at issue in this case, most of which are in fairly close proximity t o each other.

“ The test plaintiffs ’ settlement demands, when extrapolated over the full set of 1,400 [plus] plaintiffs produce a very large number, but any experienced civil judge (or [personal injury] litigator) knows that there is huge variance between a plaintiff ’ s ‘ best

case ’ demand and associated hopes for a heroic victory at trial as compared to the much more common reality that some more pallid amount is awarded by a jury in due course once a typical [personal injury] case is tried. While this case has been pending for some time, in many ways the moving parties are settling early and thus deserve a substantial discount, especially because vitally impo r tant expert discovery is still in mid

- gestation (especially as of the day that this settlement agree ment was actually reached).

“ This case is comp lic ated by the fact that the settlement includes Shell ’ s promise to comply with the final abatement order from the [Water Board]. Shell ’ s [ designated person most knowledgeable deponent, William Platt ] put the anticipated cost of compliance with the anticipated [Water Board] order at $146M. While hard to quantify in value terms, this should be seen by any rational individual plaintiff or by the City of Carson as a promise of overwhelming value since it solves t he root cause of the tort claims even though it cannot magically eliminate the tort plaintiffs ’ accumulated claims14

for past damage to real estate and persona l injury. The fact that it is hard to quantify does not, however, make it worthless.

“ Given the a mount of the $90M cash settlement (over $60,000 per plaintiff on a straight pro rata basis, but still subject to Justice Panelli ’ s actual allocation process),
combined with the hard

- to-value promise to abate the underlying problem to the
satisfaction of th e relevant state government agency charged with responsibility for this exact type of problem, it is hard to find this inadequate or collusive. The Court is therefore satisfied that moving parties have made a sufficient showing to put any objecting party to its/their burden to show that the settlement is not made in good faith. Simply put, the combination of the $90M hard cash settlement promise and the harder

- to

value promise to abate per [Water Board] direction is a large enough payment of
consideration by Shell and its affiliates as to be ‘ within the ballpark ’ for purposes of
Tech

- Bi l t

. . . .

“ Plaintiffs and their very experienced trial counsel have tried to make this case look as valuable as possible but they lack any persuasive showing at this time that there are clusters of cancer or other diseases plausibly associated with the in

- ground petrochemical pollution at issue here. While the [Water Board] has issued cautionary messages to the residents of the housing tract to limit their exposure to thei r own yards,
the [Water Board] is obviously well informed of the conditions in the area, and it has not
directed to the Court ’ s knowledge that even one of the many homes should be temporarily or permanently vacated. Politely put, plaintiffs have done an excellent job in maximizing the potential value of their claims

. . . but these inflated numbers tell an experienced judge very little about the actual value of the [personal injury] case. Simply put there is more that is unknown about the ultimate value of these claims as compared to
what is known. Under the circumstances, the burden of proof on a motion l ike this makes it susceptible of ready resolution since the inability to make a persuasive showing due to the underlying uncertainty of the available i nformation burdens the opposing party, not the moving party.15

“ Having found that the Moving Parties have fulfi lled the Tech

- Bilt factors and that Developer Defendants have failed to carry their burden of proof and persuasion, the motion [is] granted. ”
7

. Writ proceedings

. Developer Defendants filed a petition for writ of mandate, challenging the trial court’s approval of the good faith settlement on the ground it failed to “ monetize ” the value of the RAP and failed to allocate the consideration among the 1,491 individual plaintiffs and between their economic and non

- economic damages. This court summarily denied the petition. Developer Defendants filed a petition for review. The Supreme Court granted the petition for review and transferred the ma t ter bac k to this court with directions to vacate its order denying mandate and to issue an
order to show cause. We issued an order to show cause and set the matter for hearing.
CONTENTIONS Developer Defendants contend: the trial court erred in failing to assig n a dollar
value to Shell’s contractual commitment to remediate the Carousel tract; the trial court further erred in finding good faith in the absence of an allocation of the settlement consideration among the 1,491 individual P laintiffs and their alleged economic and noneconomic damages; and the trial court’s failure to calculate Developer Defendants’ offset was legally erroneous.
DISCUSSION
1. General principles with respect to d etermination of good faith settlement

. Section 877 “establishes that a goo d faith settlement bars other defendants from seeking contribution from the settling defendant (§ 877, subd. (b)), but at the same time provides that the plaintiff’s claims against the other defendants are to be reduced by ‘the amount of consideration paid for’ the settlement (§ 877, subd. (a)).” ( Abbott Ford , supra , 43 Cal.3d at p. 873.)
The factors to be taken into account in the determination of whether a settlement is in “good faith” include: a rough approximation of plaintiff’s total recovery and t he16

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 if found liable after a trial. ( Tech

- Bilt , supra , 38 Cal.3d at p. 499.) 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 at injuring the interests of nonsettling defendants. ( Ibi d .) The Tech

- Bilt factors are nonexhaustive and “may not apply in all cases.” ( PacifiCare of California v. Bright Medical Associates, Inc . (2011) 198 Cal.App.4th 1451, 1464.) F urther, practical considerations obviously require that the evaluation be mad e on the basis of information available at the time of settlement. ( Tech

- Bilt , supra , 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 set tling defendant ’ s liability to be.’ [Citation.]” ( Ibid .) The determination as to whether a settlement is in good faith is a matter left to the discretion of the trial court ( Tech

- Bilt , supra , 38 Cal.3d at p. 502 ; Mattco Forge, Inc. v. Arthur Young & Co

. (1995) 38 Cal.App.4th 1337, 1349 ( Mattco Forge ) ), with the party asserting the lack of good faith having the burden of proof on that issue. (§ 877.6,
subd. (d); Tech

- Bilt , supra , at p. 499; Mattco Forge , supra , at p. 1350, fn. 6.) “O n appellate review, a trial court’s determination of good faith of a settlement involving the resolution of factual issues will be upheld if supported by substantial evidence. [Citation.]” ( Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475 , 1490 ( Erreca’s ) .) 11

11 We are mindful that “any factual findings or determinations made on contested issues of liability or damages are tentative and solely for the purposes of evaluati ng the good faith of a proposed settlement as of the date of such evaluation. [¶] On writ review, our determination is similarly circumscribed. It is limited solely to the question of the trial court’s abuse of discretion in ruling on the good faith mot ion. As must the trial court, we rely upon the state of the record, and the respective showings made by the parties, as of the time of the motion.” ( Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 878, fn. 9 , italics omitted

. )17

2. No mer it to Developer Defendants’ contention the trial court should have assigned a specifi c value to the RAP remediation ; because Shell already was obligated to comply with the RAP
, the remediation thereunder was not part of the settlement
consideration and sho uld not be included in the settlement valuation.

a. The question of whether Shell’s cost to implement the RAP should be
included in the s ettlement consideration is properly before this court

. Developer Defendants’ theory is that in ruling on the motion for good faith
settlement , the trial court was required to assign a dollar value to Shell’s implementation of the RAP, in addition to the $90 million cash settlement, in order to determine the proper amount of the offset to which the nonsettling parties w ould be entitled. Th is raises, as a threshold question, whether Shell’s cost of complying with the RAP should be
included at all in evaluating the good faith settlement s

. As indicated, the trial court approved the settlement s as being in good faith
withou t assigning a specific value to the RAP. It simply found “the combination of the $90M hard cash settlement promise and the harder

- to

- value promise to abate per [the Water Board’s] direction is a large enough payment of consideration by Shell

. . . as to b e ‘within the ballpark.’ ” In their returns to the petition, Plaintiffs , Carson and Shell take the position that the remediation is not part of the consideration paid by Shell in settlement and therefore Developer Defendants are not entitled to a valuatio n or an offset in any amount for Shell’s cost of remediation. In their reply, Developer Defendants assert that because Plaintiffs , Carson and
Shell did not seek review by way of a writ petition of their own , they wai ved their right to
attack the trial cour t’s findings that the good faith settlement s include d a promise by Shell to comply with the RAP and that Shell’s promise was of great value because it solve d the
root cause of the tort claims

. Developer Defendants’ argument that real parties waived
the is sue is meritless. The settling parties were not aggrieved by the trial court’s decision approving the good faith settlement s . (See Code Civ. Proc. § 902 ; In re Marriage of18

Burwell (2013) 221 Cal.App.4th 1, 13 [only aggrieved party may appeal]

. ) The sett ling parties were not required to file a writ petition simply to challenge the reasons the trial court gave for approving the good faith settlement s

. Accordingly, w e reject Developer Defendants’ argument that this court cannot
address the threshold issue o f whether the RAP remediation was part of the settlement
consideration

. Indeed, Developer Defendants’ petition for writ of mandate squarely present s the issue, by arguing that “ all elements of consideration ” must be assigned a
dollar value at the time of the good faith hearing. Th is contention is sufficient to raise the
issue of whether the RAP remediation constituted part of th e settlement consideration. Further, the question of whether the RAP remediation was part of the settlement
consideration has be en extensively briefed by the parties. We therefore proceed to
address the merits of the issue.

b. Shell’s compliance with the RAP, already mandated by the Water Board
pursuant to the state’s police power s , was not part of the settlement consideration
, and therefore could not be weighed by the trial court as part of the amount paid in settlement.
It is hornbook law that “ [d] oing or promising to do what one already is legally bound to do cannot be consideration for a promise.” ( Asmus v. Pacific Bell (200 0)
23 Cal.4th 1, 32 (dis. opn. of George, C. J.) ( Asmus ) ; accord, Garcia v. World Savings,
FSB (2010) 183 Cal.App.4th 1031, 1040; 1 Witkin, Summary of Cal. Law (10 th ed. 2005) Contracts, § 218, p. 251; see also Civ. Code § 1605 [ defining good consideration as “[a]ny benefit conferred, or agreed to be conferred, upon the promisor, by any other person, to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered, by such person, other than such as he is at the time of co nsent lawfully bound to suffer, as an inducement to the promisor” ]

. ) Shell’s performance of environmental remediation at the site of the former Kast
Tank Farm is not pursuant to its settlement s with Plaintiffs and Carson , and is not contingent on the fate of any good faith settlement motion

. Rather, the remediation already was mandated by the Water Board in March 2011 , pursuant to Water Code19

section 13304 , well before Plaintiffs, Carson and Shell reached settlement s in this litigation. 12 The cleanup and ab atement order was based on Shell’s “ownership of the former Kast Property Tank Farm” and its “former operation of a petroleum hydrocarbon tank farm at the Site.” The Water Board directed Shell to clean up the waste and abate the effects of the discharge , and ordered Shell to prepare a full

- scale impacted soil remedial action plan for the site. The cleanup and abatement order specified: “All obligations are imposed pursuant to the police powers of the State of California intended to protect the public hea lth, safety, welfare, and environment.” (Italics added.) Thus, Shell is under a preexisting obligation, imposed by the Water Board pursuant to the state’s police powers, to remediate the site. It follows that Shell’s compliance with the Water Board’s cle anup and abatement order i s not part of the

amount paid in settlement. Therefore, there is no merit to Developer Defendants ’
contention that in ruling on the motion for good faith settlement, the trial court should
have included the value of the RAP (the cost of which has been estimated at $146 million) t o determine the proper amount of the offset to which the nonsettling defendants
will be entitled. Further, because Shell’s remediation in compliance with the RAP is not part of the consideration it paid i n settlement, there is no merit to Developer Defendants’ contention

12 Water Code section 13304 states in relevant part at subdivision (a): “A person who has discharged or discharges waste into the waters of this state in violation of any waste discharge requirement or other order or prohibition issued by a regional boa rd or the state board, or who has caused or permitted, causes or permits, or threatens to cause or permit any waste to be discharged or deposited where it is, or probably will be, discharged into the waters of the state and creates, or threatens to create, a condition of pollution or nuisance, shall, upon order of the regional board, clean up the waste or abate the effects of the waste , or, in the case of threatened pollution or nuisance, take other necessary remedial action, including, but not limited to, overseeing cleanup and abatement efforts.

. . . Upon failure of a person to comply with the cleanup or abatement order, the Attorney General, at the request of the board, shall petition the superior court for that county for the issuance of an injunction requiring the person to comply with the order. In the suit, the court shall have jurisdiction to grant a prohibitory or mandatory injunction, either preliminary or permanent, as the facts may warrant.” (Italics added.)20

that the settling parties’ exclusion of the cost of the RAP from the settlements was collusive and intended to minimize the amount that would be set off against the nonsettling parties’ li ability

.

c. To the extent the trial court gave weight to the value of the RAP in approving the good faith settlements, the error was harmless; on the record presented, the $90 million payment by Shell, standing alone, is well within the range of Shell’s proportionate liability

. Although the trial court erred to the extent that it relied on Shell’s remediation of
the site , in addition to t he $90 million cash settlement
, to find “ a large enough payment of consideration by Shell

. . . as to be ‘within the ballpark,’ ” on the record presented the
error was harmless because the $90 million, in and of itself, is well within the “ ballpark

. ”

(1) The Acosta settlement

. The damages asserted by Plaintiffs do not drive our analysis . A plaintiff’s claims for dama ges are not determinative

– rather, the court i s called upon “to make a ‘rough approximation’ of what the plaintiff would actually recover.” ( West , supra, 27 Cal.App.4th at p. 1636.) Based on our review of the record, the $90 million Acosta settlement, am ounting to over $60,000 per plaintiff, was well within the range of Shell’s liability for Plaintiffs’ damages , particularly given the earlier disposition of Plaintiffs’ property damage claims against Shell

. As indicated, the trial court previously had gra nted Shell’s motion to strike Plaintiffs’ claims for property damage on statute of limitations grounds

. As noted in
footnote 7 , above, the parties disagree as to whether the trial court’s order eliminated all property damage claims against Shell, or wheth er Plaintiffs’ claims against Shell for continuing nuisance and continuing trespass survived that ruling . At the hearing on the
motion for good faith settlement, the trial court stated “Shell is out on the property damages; Shell is in on personal injury , ” and then added, “[ t ] here may be some more , but
the heart of it is

. . . personal injury.” (Italics added.) Assuming arguendo that Plaintiffs ’ causes of action against Shell for continuing nuisance and continuing trespass remained21

intact after the rulin g on the motion to strike, the trial court reasonably could conclude that Shell’s remediation of the Carousel tract, pursuant to the RAP, largely moot s those
claims , making this essentially a personal injury action as against Shell

. In other words,

a lthou gh the RAP was not part of the amount paid by Shell in settlement, the impact of
the remediation need not be ignored in determining the good faith of the settlement s

. Turning to the adequacy of the consideration given by Shell , on the record presented, th e $90 million payment to Plaintiffs is not “ ‘grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ ” ( Tech

- Bilt , supra , 38 Cal.3d at p. 499.)
T he Miller declaration , filed in support of Shell’s motion for good faith settlement, demonstrated the difficulty Plaintiffs would have in proving causation and in prevailing on their personal injury claims. The pool of test plaintiffs showed t here were no clusters
of disease among the m, most of whom claimed a variety of common illnesses and
ailments such as asthma, allergies, headaches, diabetes, heart conditions and high blood
pressure, with the causal connection between those diagnoses and environmental
conditions in the Car ousel neighborhood appearing to be questionable. One of the test plaintiffs was a 79 year old man who asserted a claim for prostate cancer , but medical
literature shows that prostate cancer at that age is ubiquitous. Another test plaintiff decedent alleg edly died of stomach cancer , but that allegation was inconsistent with her
medical records

. Thus, at the time of settlement, as Shell has argued, evidence of a causal connection between Plaintiffs’ diagnoses and environmental conditions in the
Carousel ne ighborhood was “tenuous at best.” Tech

- Bilt teaches that “practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.” ( Tech

- Bilt , supra , 38 Cal.3d at p. 499.) Given the slight evidence of injuries stemming from the environmental contamination , the compensation of over $60,000 per plaintiff on a pro rata basis appears to be well within the proverbial ballpark.22

As for Shell’s proportionate liability, vis

- à

- vis Developer Defendant s, we begin with the premise that “a settl o r should pay less in settlement than he would if he were found liable after a trial.” ( Tech

- Bilt , supra , 38 Cal.3d at p. 499.) Shell’s moving papers
below presented evidence that Barclay sought permission from S hell in 1965, prior to the close of sale, to conduct “site clearing work” on the property. The Barclay letter stated, “We would like to begin immediately to remove the liquid waste and petroleum residues
f rom the property.” The evidence also included a M arch 1966 letter from a soils engineer
to the original developer s , indicating the soil beneath one of the reservoirs at the Kast site was “highly oil stained,” and that the soils had a “petroleum odor

. ” Thus, there is
substantial evidence to show the orig inal developer s were aware of the contamination at the site, and that it was the original developer s who undertook to remove the liquid waste and petroleum residues to prepare the site for home development. Given th is showing that substantial liability sh ould be allocated to Developer Defendants, Shell’s payment of over $60,000 on a pro rata basis for its share of Plaintiffs’ purported personal injuries does not appear to be “ ‘ grossly disproportionate to what a reasonable person , at the time
of the settle ment, would estimate [ Shell’s ] liability to be. ’ ” ( Tech

- Bilt , supra , 38 Cal.3d at p. 499.) (2) The Carson settlement

. Turning to the Carson settlement, which provided for mutual releases and a waiver of costs, Developer Defendants characterize it as a “walk away” by Shell, which gives Carson nothing of substance if the RAP remediation cost is excluded. However, Developer Defendants’ argument disregards the nature of the relief which Carson sought in this litigation. Carson ’s complaint did not seek m onetary damages; rather, it requested “full and total abatement of the contamination down to approximately 40 feet below the Carousel neighborhood.”
The RAP will achieve abatement, al beit not to th e depth originally sought by
Carson. Pursuant to the Water Board’s order, Shell will excavate to a depth of five to ten feet beneath the homes, following excavation will install a vapor extraction and venting23

mechanism, and will institute comprehensive long

- term monitoring. Developer Defendants admit in their pe tition that “[t]hrough its promise to remediate down to depths of 5 to 10 feet, Shell is substantially providing the relief that Carson sought .” (Italics added.) That being the case, it would appear that S hell did not need to provide any additional consi deration in its good faith settlement with Carson. Because the RAP remediation basically moot s the claims pled by Carson, the trial court did not err in approving the good faith settlement in the Carson action.
3. Good faith settlement determination did not require an allocation of the $90 million settlement fund among the 1,491 individual Plaintiffs and between their economic and noneconomic damages ; individualized allocation s would require 1,491
mini

- trials at the good faith settlement stage, an approac h w hich the Supreme Court has cautioned against

. Developer Defendants contend the trial court erred in finding good faith without
an allocation of the entire settlement consideration among the 1,491 individual Plaintiffs
and between their economic and none conomic damages. Our conclusion that the estimated $146 million cost of complying with the RAP is not part of the settlement consideration makes it unnecessary to address Developer Defendants’ arguments with respect to the calculation and allocation of an offset for the RAP remediation costs. Therefore, we confine our analysis to the allocation of the $90 million monetary payment

among Plaintiffs

. For the reasons discussed below, we reject Developer Defendants’ allocation arguments.

a. Case law does no t support Developer Defendants’ assertion that individualized allocation s w ere required to be made at the time of the good faith
determination

. Developer Defendants contend that two decisions, Knox v. County of Los Angeles ( Knox ) (1980) 109 Cal.App.3d 825, a nd Alcal Roofing & Insulation v. Superior Court (1992) 8 Cal.App.4th 1121 ( Alcal ), “control the analysis here
, ” so as to require an24

allocation among the individualized claims at the time of the good faith determination. It appears to this court that Dev eloper Defendants’ reliance on Knox and Alcal is misplaced.
In Knox , th ree plaintiffs sued a market and three of its employees (the market defendants) as well as three governmental defendants , for unlawful arrest and other
causes of action , arising out of a single incident in which the plaintiffs were arrested by sheriff’s deputies for allegedly violating a temporary restraining order regulating picketing. ( Knox , supra , 109 Cal.App.3d at pp. 828

- 829.) The plaintiffs reached a
pr et rial settlement with the market defendants amounting to $4,000 per plaintiff, for a
total of $12,000. ( Id . at p p

. 829

- 830.) At trial, the governmental defendants were found
liable for a total of $52,500 in damages

. ( Id . at pp. 830

- 831.) Following trial, the court
denied the go vernmental defendants’ request for a $12,000 offset for the amount the three plaintiffs received in settlement from the market defendants . ( Id . at p. 831.) The reviewing court reversed and remanded for further proceedings to determine
the amount of the of

fset to which the governmental defendants were entitled. ( Knox , supra , 109 Cal.App.3d at p. 837. ) It explained, “the [lower] court should have required an evidentiary showing by plaintiffs establishing and justifying an agreed allocation of
less than all of the $4,000 settlement figure to the first and second causes of action [ for
unlawful arrest and false imprisonment in which the market defendants were alleged to be joint tortfeasors with the governmental defendants ] . Had such an allocation been shown, its effectiveness would depend upon finding it to be a good faith allocation. The statutory requirement of good faith extends not only to the amount of the overall
settlement but as well to any allocation which operates to exclude any portion of the

sett lement from the setoff . [Citations.] It is apparent, therefore, that an evidentiary hearing is required to establish a factual basis, if any there is, for denying [the governmental defendants] credit for the full amount of the settlement.” ( I d. at pp. 8 36

- 837, italics added.) Clearly, Knox does not stand for the proposition that the allocation must be made at the time of the good faith settlement determination

. Rather, as stated in the Erreca’s25

decision, Knox held, “Where the settling parties have agree d to allocate less than all of the settlement amount to a portion of the causes of action, an evidentiary showing is required to justify such allocation. ( Knox v. County of Los Angeles (1980)
109 Cal.App.3d 825, 836

- 837.)” ( Erreca’s , supra , 19 Cal.App.4t h at p. 1491.)
The concern expressed in Knox about an “allocation which operates to exclude any portion of the settlement from the setoff” ( Knox , supra , 109 Cal.App.3d at p. 837) is not present here. I n the instant case, the $90 million settlement was ent irely unallocated

. Therefore, in ruling on the motion for good faith settlement, the trial court was not called upon to scrutinize an allocation which excluded some portion of the settlement from the
setoff.
Alcal , the other case on which Developer Defend ants heavily rely, also involved a settlement allocation which excluded a portion of the settlement from the setoff. In Alcal ,

a roofer, the sole nonsettling defendant in a multiparty construction defect action, challenged the trial court’s approval of a $4.4 million settlement pursuant to section
877.6. The r oofer d id not object to the amount of the settlement, but challenged the settling parties ’ allocation of only $100,000 of the settlement to roofing issues . Th is
allocation left the roofer vulnerable to remaining damages that could reach $2 million, with an offset of only $100,000 from the settlement. ( Alcal , supra , 8 Cal.App.4th at
p p. 1122

- 1123.)
Alcal agreed with the roofer that the lower court erred in approving the settlement. ( Alcal , supra , 8 Cal.App.4th at p. 1123.) It explained: “We cannot determine from the documents before us what settlement or settlements took place and what parties agreed to
what allocations. ” ( Id . at p. 1128.) The sett l ing parties “la[id] blame on roofer for failing to present convincing evidence that $100,000 was an improper joint allocation to roofing issues. We conclude, however, that roofer’s burden to show an improper allocation did not arise during the proceedings below because the settling parties failed to pr esent to roofer and the court a clear and complete description of the settlement or settlements. At a minimum, a party seeking confirmation of a settlement must explain to the court and to26

all other parties: who has settled with whom, the dollar amount o f each settlement, if any settlement is allocated, how it is allocated between issues and/or parties , what nonmonetary consideration has been included, and how the parties to the settlement value the nonmonetary consideration. [¶] Because we cannot deter mine (1) what settlement or settlements the court approved, (2) when and in what way the subcontractors settled and joined in the allocation, and (3) the value of the assigned rights, we cannot allow the court’s order to stand.” ( Id . at p. 1129 , italics a dded .) To reiterate, in the instant case, no portion of the $90 million was allocated and
excluded from the setoff . Therefore, the concern present in Alcal , where only a fraction
of the settlement was allocated to roofing issues to the detriment of the no nsettling roofer, has no application here. (See, also, Erreca’s , supra , 19 Cal.App.4th at p. 1491 [ by allocating only $1.5 million of total settlement to soils issues, parties reduced amount of setoff available to soils defendants].) Here, the full $90 mi llion is theoretically available as a setoff to the nonsettling Developer Defendants. Because no portion of the settlement fund was excluded from the setoff, the allocation issue is simply the distribution of the $90 million among the 1,491 Plaintiffs, an d between their economic and noneconomic damages. Hypothetically, Justice Panelli may award one plaintiff $30,000 and may award a neighboring plaintiff $120,000. However, how much each of the Plaintiffs will receive in settlement, and what each one’s rat io of economic and noneconomic damages will be , appears to have slight bearing on whether the $90 million settlement
, in the aggregate , is fair to Developer
Defendants.
b. Approval of the $90 million good faith settlement did not require individualized a llocations among the 1,491 Plaintiffs and between their economic and noneconomic damages. Developer Defendants contend the trial court erred in finding good faith “in the absence of an allocation of the settlement consideration among the 1,491 individual
P laintiffs and their alleged economic and noneconomic damages , ” and in the absence of27

an allocation by the settling parties, the trial court was required to allocate the settlement proceeds in the manner most favorable to the nonsettling defendants. The al location issue is of concern to nonsettling defendants because Civil Code “[s]ection 1431.2 provides that the responsibility for the noneconomic portion of the damages allocated to each defendant shall be several and not joint. Therefore, each defendant i s solely responsible for his or her share of the noneconomic damages. Thus, that portion of the settlement attributable to noneconomic damages is not subject to set

- off.” ( Espinoza , supra , 9 Cal.App.4th at p. 276.)
The trial court ruled the lack of an al location of the $90 million settlement proceeds d id not require it to deny the motion for good faith settlement ; i nstead, the
allocation could be determined at a later date

-- after each trial, the court would allocate that plaintiff’s settlement proceeds by applying the jury’s ratio of economic to
noneconomic damages

. The trial court gave the following illustration: if Justice Panelli were to award $50,000 to lead plaintiff Adelino Acosta, and the jury later were to
determine that Mr. Acosta’s damages ag ainst Developer Defendants were two

- thirds noneconomic, then two

- thirds of his $50,000 Shell settlement would be deemed noneconomic and not available to Developer Defendants as an offset. The trial court’s ruling was entirely consistent with Espinoza , supr a , 9 Cal.App.4th at pages 276

- 277, which , as the Supreme Court recently noted in Rashidi
v. Moser (2014) 60 Cal.4th 718 ( Rashidi ), provides a “widely accepted method” for making a postverdict allocation. ( Id . at p. 722 .) “The percentage of the jury’s awa rd attributable to economic damages is calculated and applied to the settlement, yielding the amount that the nonsettling defendant is entitled to offset. [Citations.]” ( Rashidi , supra , at p. 722.)28

We note the concluding footnote in Espinoza states: “We do not here reach the issue of whether a trial court presiding over a good faith settlement hearing should make any such allocation if it is requested to do so .” ( Espinoza , supra , 9 Cal.App.4th at p. 277,
fn. 9 , italics added .) 13 The question left open by Espinoza is presented here. Our analysis is informed by the Supreme Court’s seminal decisions in Tech

- Bilt and Abbott Ford . In Tech

- Bilt , the court adopted the “ballpark” rule, which is “an attempt to make only a ‘rough approximation of plaintiffs’ to tal recovery and the settlor’s proportionate liability’ modified by several considerations.” ( Abbott Ford , supra , 43 Cal.3d at pp. 887

- 888, conc. opn. of Broussard, J., citing Tech

- Bilt , supra , 38 Cal.3d at p. 499.) Tech

- Bilt was concerned that an altern ative approach “ would tend to convert the pretrial settlement approval procedure into a full

- scale minitrial

. . . .” ( Tech Bilt , supra , at p. 499 , italics
added .) Abbott Ford reiterated that concern, stating “the fact a nonsettling defendant may
challen ge the agreement’s assigned value should not be interpreted as giving such defendant a right to a mini

- trial on the valuation issue . The nature, extent and the procedure regarding any such challenge is left to the discretion of the trial court.” ( Abbott Ford , supra , at p. 880, fn. 23 , italics added .) Under Developer Defendants’ theory , the trial court would have had to conduct 1,491 mini

- trials to scrutinize or determine any individualized allocations of the $90 million settlement fund . Developer Defenda nts’ argument is not tenable in light of
the cautionary language found in Tech

- Bilt and Abbott Ford

. Moreover, an approach requiring individualized allocations of the settlement fund at the good faith settlement stage would severely impede good faith sett lements in multi

- plaintiff cases of this complexity. 14

13 Apparently, in the years since E spinoza , the issue has remained unresolved. (See Haning, Fla h a v an, Cheng & Wright, California Practice Guide: Personal Injury (The Rutter Group 2015) par a. 4:185.2 3.)

14 It is unnecessary to address any remaining arguments raised by the petition.29 DISPOSITION The order to show cause is discharged. The stay of proceedings previously ordered by this court is lifted upon finality of this opinion. The petition for writ of
mandate is denied. Real p arties in interest shall recover their costs in this proceeding. (Cal. Rules of Court, rule 8.493.)
CERTIFIED FOR PUBLICATION

EDMON, P. J.

We concur:

LAVIN, J.

JONES, J. *

* Ju dge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.