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 COMPANY et al.,

Real Parties in Interest.

B262044

(Los Angeles County

Super. Ct. Nos. 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. Girardi, Robert W. Finnerty and Christopher T. 

Aumais; Law Offices of Martin N. Buchanan and Martin N. Buchanan for Real Parties in 

Interest Adelino Acosta et al. and City of Carson.

Morgan, Lewis & Bockius, David L. Schrader and Deanne L. Miller for Real 

Parties in Interest Shell Oil Company 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 with 

residual petroleum hydrocarbons. In this writ proceeding challenging the trial court’s 

determination of good faith settlements, we are called upon to address whether a 

government-ordered environmental cleanup was part of the settlement consideration, and 

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 Properties, 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 settlements (Code Civ. Proc., § 877.6)1between codefendants Shell 

Oil Company (Shell) and Equilon Enterprises LLC dba Shell Oil Products US (Equilon) 

(collectively Shell) 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 exclusion 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 erred in approving the $90 million good faith 

 

1 All further statutory references are to the Code of Civil Procedure, unless 

otherwise specified.
3

settlement between Plaintiffs and Shell without an allocation of the settlement proceeds 

among the various Plaintiffs, and between their economic and noneconomic damages.2

We conclude that Shell’s compliance with the RAP, which was mandated by the 

Water Board pursuant to the state’s police powers, 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 weight to the value of the RAP 

remediation in approving the good faith settlements, the error was harmless; on 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 necessitated 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 codefendants in two related 

actions currently pending in respondent superior court, Adelino Acosta, et al. v. Shell Oil 

Company, et al. (L.A. Super. Ct. No. NC053643 and related cases) (the Acosta action) 

and City of Carson v. Shell Oil Company, et al. (L.A. Super. Ct. No. BC499369 and 

related cases) (the Carson action).

Real parties in interest are: codefendants Shell and 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 nonsettling 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. Sale and redevelopment of the site.

The 1,491 individual plaintiffs lived or worked in or near the Carousel housing 

tract, a neighborhood of approximately 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 Richard 

Barclay and his associates (Barclay), a group 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, the 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 abatement order against Shell.

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 reservoirs had 

been located. In March 2011, the Water Board issued a cleanup and abatement order 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 operation 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, excavate five to ten feet beneath the homes, following excavation will install a 

vapor extraction and venting mechanism, and will institute comprehensive long-term 

monitoring. In addition, Shell will provide temporary relocation assistance in connection 

with implementing the RAP, and will compensate Carousel homeowners to ensure they 

receive fair market value if they 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 court 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 action.

In October 2009, seventeen months after the Water Board ordered Shell to conduct 

an investigation of the site, the numerous individual plaintiffs filed their lawsuit. They

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), filed 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 developers, namely, Barclay Hollander, later acquired 

by Oceanic and then Dole. The SAC asserted 12 causes 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 developer 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, negligent 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 alleged, inter alia, that Shell’s liability arises out of its 

ownership and operation of the leaking oil reservoirs, that Shell sold the site to the 

developers “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 

such 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 action.

In January 2013, Carson, represented by the same law firm representing Plaintiffs, 

filed suit against Shell and Developer Defendants alleging public nuisance 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 Carson 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 contaminated the site and failed to 

disclose the contamination. Barclay Hollander also sought a declaration that Shell was 

not entitled to indemnification.

5. Shell’s settlements in the Acosta and Carson actions.

In October 2014, Shell reached settlements with 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 settlement 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 percent of the settlement funds to Girardi Keese once certain conditions are satisfied, 

including: Girardi Keese’s delivery 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 good faith; and the filing of executed requests 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, it requires Plaintiffs and Girardi Keese “to cooperate in good faith in the 
8

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 Carousel 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 contamination 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 accordance with Water Board-approved work plans.” To 

enforce these provisions, the agreement requests that the superior court “retain 

jurisdiction over the Parties and the Actions for purposes of finalizing and enforcing the 

Agreement, including, without limitation, 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 individual 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 apportionment 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 allocation 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 of costs. The

Carson settlement defined the term “claim(s)” as specifically excluding “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 agreements in this 

Action.” The Carson settlement required 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 enforcement of the 

settlement agreement.

6. Good faith settlement proceedings.

a. Shell’s motion for good faith settlement.

On December 12, 2014, Shell filed a motion for an order determining that the two 

settlements, between Plaintiffs and Shell, and Carson 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 public nuisance action in exchange for a mutual release and 

waiver of costs, were 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 apportionment 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 the settlor’s fair share.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 

874-875 (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 approximation’ of 

what the plaintiff would actually recover” (West v. Superior Court (1994) 27 Cal.App.4th 
10

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 & Associates (1985) 

38 Cal.3d 488, 499 (Tech-Bilt).)

Shell asserted that notwithstanding the sizable claims by the numerous Plaintiffs, 

it had “multiple defenses to liability that must be factored. Shell sold the property in 

its as-is condition, with the crude 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 damages. [¶] 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 

cannot 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 

court 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. 

There were no clusters of disease among the test plaintiffs, most of whom claimed a 

variety of common illnesses and ailments. Further, although no expert discovery had 

been conducted yet on causation, establishing causation would be challenging for

Plaintiffs. 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 died of 

stomach cancer; however, her medical records and treating physician’s testimony 

indicated that she was never diagnosed with stomach cancer. Other test plaintiffs claimed 
11

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 Defendants, 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 from 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, there 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 require.” Miller also cited a March 1966 

letter from Pacific Soils Engineering, Inc. to the original developers, 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 Miller 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 developers. 

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 amount 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 one 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 implementing 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.

Developer Defendants argued that the 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 

remediation, the settlement failed the good faith standard.

Developer 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 settlement proceeds were being allocated between Plaintiffs’ 

economic and non-economic damages, and among the 1,491 individual 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 

counsel, 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 about 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 imprecise 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 to 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 important expert discovery is still in mid-gestation 

(especially as of the day that this settlement agreement was actually reached).

“This case is complicated 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 the root cause of the tort 

claims even though it cannot magically eliminate the tort plaintiffs’ accumulated claims 
14

for past damage to real estate and personal injury. The fact that it is hard to quantify does 

not, however, make it worthless.

“Given the amount 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 the 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-tovalue 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-Bilt . . . .

“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 their 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 like this makes 

it susceptible of ready resolution since the inability to make a persuasive showing due to 

the underlying uncertainty of the available information burdens the opposing party, not 

the moving party.
15

“Having found that the Moving Parties have fulfilled 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 matter 

back 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 assign 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 Plaintiffs 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 determination of good faith settlement.

Section 877 “establishes that a good 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 the 
16

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. (Ibid.) 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.) Further, practical 

considerations obviously require that the evaluation be made 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 settling 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.) “On 

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 evaluating 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 motion. 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 merit to Developer Defendants’ contention the trial court should have 

assigned a specific 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 should not be included in the settlement valuation.

a. The question of whether Shell’s cost to implement the RAP should be 

included in the settlement 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 would be entitled. This 

raises, as a threshold question, whether Shell’s cost of complying with the RAP should be 

included at all in evaluating the good faith settlements.

As indicated, the trial court approved the settlements as being in good faith 

without 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 be 

‘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 valuation 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 waived their right to 

attack the trial court’s findings that the good faith settlements included a promise by Shell 

to comply with the RAP and that Shell’s promise was of great value because it solved the 

root cause of the tort claims. Developer Defendants’ argument that real parties waived 

the issue is meritless. The settling parties were not aggrieved by the trial court’s decision 

approving the good faith settlements. (See Code Civ. Proc. § 902; In re Marriage of 
18

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

parties were not required to file a writ petition simply to challenge the reasons the trial 

court gave for approving the good faith settlements.

Accordingly, we reject Developer Defendants’ argument that this court cannot 

address the threshold issue of whether the RAP remediation was part of the settlement 

consideration. Indeed, Developer Defendants’ petition for writ of mandate squarely 

presents the issue, by arguing that “all elements of consideration” must be assigned a 

dollar value at the time of the good faith hearing. This contention is sufficient to raise the 

issue of whether the RAP remediation constituted part of the settlement consideration. 

Further, the question of whether the RAP remediation was part of the settlement 

consideration has been 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 powers, 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 (2000) 

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 (10th 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 consent 

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 settlements 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 Code 
19

section 13304, well before Plaintiffs, Carson and Shell reached settlements in this 

litigation.12 The cleanup and abatement 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 health, 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 cleanup and abatement order is 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) to 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 in 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 board 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’ liability.

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 the $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 damages are not determinative – rather, the court is 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, amounting 

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 granted 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 whether 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 remained 
21

intact after the ruling on the motion to strike, the trial court reasonably could conclude 

that Shell’s remediation of the Carousel tract, pursuant to the RAP, largely moots those 

claims, making this essentially a personal injury action as against Shell. In other words, 

although 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 settlements.

Turning to the adequacy of the consideration given by Shell, on the record 

presented, the $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.)

The 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 there were no clusters 

of disease among them, 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 Carousel 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 allegedly 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 neighborhood 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 Defendants, we begin 

with the premise that “a settlor 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 Shell 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 

from the property.” The evidence also included a March 1966 letter from a soils engineer 

to the original developers, 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 original developers were aware of the contamination at 

the site, and that it was the original developers who undertook to remove the liquid waste 

and petroleum residues to prepare the site for home development. Given this showing 

that substantial liability should 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 settlement, 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 monetary 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, albeit not to the 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 venting 
23

mechanism, and will institute comprehensive long-term monitoring. Developer 

Defendants admit in their petition 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 Shell did not need to provide any 

additional consideration in its good faith settlement with Carson. Because the RAP 

remediation basically moots 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 allocations would require 1,491 

mini-trials at the good faith settlement stage, an approach which 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 noneconomic 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 not support Developer Defendants’ assertion that 

individualized allocations were 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, and Alcal Roofing & Insulation v. Superior Court

(1992) 8 Cal.App.4th 1121 (Alcal), “control the analysis here,” so as to require an 
24

allocation among the individualized claims at the time of the good faith determination. It 

appears to this court that Developer Defendants’ reliance on Knox and Alcal is misplaced.

In Knox, three 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 

pretrial settlement with the market defendants amounting to $4,000 per plaintiff, for a 

total of $12,000. (Id. at pp. 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 governmental 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 offset 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 

settlement 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.” (Id. at pp. 836-

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’s
25

decision, Knox held, “Where the settling parties have agreed 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.4th 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. In the instant case, the $90 million settlement was entirely 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 Defendants 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 roofer did not object to the amount of the settlement, but challenged the 

settling parties’ allocation of only $100,000 of the settlement to roofing issues. This

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 

pp. 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 settling 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 present 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 to 
26

all other parties: who has settled with whom, the dollar amount of 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 determine (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 added.)

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 nonsettling 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 million 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, and 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 ratio 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 allocations 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 

Plaintiffs and their alleged economic and noneconomic damages,” and in the absence of 
27

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 allocation 

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 is 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 allocation of the $90 million settlement 

proceeds did not require it to deny the motion for good faith settlement; instead, 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 against 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, supra, 

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 award 

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’ total 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 alternative 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 

challenge 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 Defendants’ 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 settlements in multi-plaintiff cases of this 

complexity.14

 

13 Apparently, in the years since Espinoza, the issue has remained unresolved. (See 

Haning, Flahavan, Cheng & Wright, California Practice Guide: Personal Injury (The 

Rutter Group 2015) para. 4:185.23.)

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 parties 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.*

 

*

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.