BACKGROUND

25 This is a medical malpractice case brought under the Federal Tort Claims Act (“FTCA”). 26 29 U.S.C. § 2671-2680. The case arises from a vaginal hysterectomy performed at Doctors 27 Medical Center of Modesto (“Doctors Medical”). 28 1 A. Factual Background 2 In June 2015, Plaintiff sought medical attention for complaints of anemia from blood loss 3 caused by heavy periods. In May 2016, Plaintiff complained of worsening pelvic pain and 4 continued heavy menstrual bleeding. Plaintiff consented to a hysterectomy. 5 On June 27, 2016, Plaintiff underwent a total vaginal hysterectomy and bilateral salpingo- 6 oophorectomy at Doctors Medical. The surgery was performed by Rebecca J. Brock, M.D., who 7 is deemed to be an employee of the Public Health Service pursuant to the Federally Supported 8 Health Centers Assistance Act, 42 U.S.C. § 233, and who was acting within the scope of her 9 employment at the time of the underlying incident. As a result, the United States is the proper 10 defendant in this action. 11 Plaintiff was observed in the hospital for two days after the surgery, during which time 12 she progressed to a regular diet, was ambulating, eating well, and passing gas. Plaintiff was 13 discharged on June 29, 2016, with instructions to follow up at Golden Valley Health Center or to 14 return to the Emergency Department sooner for increasing pain, fever, or drainage from the 15 wound. 16 Later that day, Plaintiff returned to Doctors Medical with complaints of chest 17 pain/tightness. Plaintiff reported normal urination but no bowel movements since surgery. A CT 18 scan of the abdomen revealed a nick of the colon. Plaintiff was readmitted to the hospital for 19 treatment of a rectosigmoid laceration (i.e., tear in the distal part of the sigmoid colon and the 20 proximal part of the rectum). 21 On June 30, 2016, an exploratory laparotomy was performed to repair a rectal injury. 22 After staying in the hospital for 8 days, Plaintiff was discharged home on July 8, 2016, tolerating 23 a regular diet and passing stool through a colostomy. Eight months after the repair surgery, 24 Plaintiff’s colostomy could not be taken down because of scarring in the pelvis. Plaintiff was 25 referred to University of San Francisco and treated there until her last surgery on January 23, 26 2018. Plaintiff returned to work but complains of continued gas and pain and states that she is 27 evaluating further surgical options. 28 /// 1 B. Procedural Background 2 On September 27, 2017, Plaintiff filed a medical malpractice action in Stanislaus County 3 Superior Court against Dr. Brock, Doctors Medical, and Golden Valley Health Centers-Modesto 4 Women’s Health (“GVHC”). That case was removed to federal court and the United States was 5 substituted for Dr. Brock and GVHC pursuant to 42 U.S.C. § 233. (See Case No. 1:18-cv-00130- 6 LJO-BAM at ECF No. 1.) The claims against the United States were then dismissed without 7 prejudice on the ground that Plaintiff had failed to exhaust her administrative remedies under the 8 FTCA, and the state law claims were remanded to state court. (Case No. 1:18-cv-00130-LJO- 9 BAM at ECF No. 7.) The state law claims remain pending before the state court. 10 On May 15, 2019, after exhausting her administrative remedies, Plaintiff filed the present 11 action bringing a medical malpractice claim under the FTCA against the United States. (ECF No. 12 1.) Plaintiff has also filed a motion requesting that the Court exercise supplemental jurisdiction 13 over the state law claims that were remanded and remain pending in state court. (ECF No. 12.) 14 In the present action, the United States issued extensive discovery to Plaintiff earlier in 15 2020 but granted multiple extensions of time for Plaintiff to respond. Depositions were also 16 scheduled but were cancelled and postponed due to the COVID-19 pandemic and the resulting 17 shelter in place orders. The United States has thus not been able to depose Plaintiff or have its 18 consultant perform an Independent Medical Examination of Plaintiff, both of which were 19 expected to occur. Plaintiff was, however, deposed in the pending state court action prior to the 20 COVID-19 shutdown. 21 The United States represents that although additional discovery could reveal additional 22 facts, the parties have agreed that they have sufficient information to settle the case and have 23 accordingly reached a conditional settlement of the case for $315,000, which is documented in a 24 detailed settlement agreement and release and requires this Court’s approval of the United States’ 25 Motion for Good Faith Settlement Determination and dismissal with prejudice of the United 26 States from this action. (ECF No. 18-1 at 3.) 27 /// 28 /// 1 LEGAL STANDARD 2 Under California law, 3 Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or 4 more of a number of tortfeasors claimed to be liable for the same tort, or to one or more other co-obligors mutually subject to contribution rights, it shall have the 5 following effect:

6 (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by 7 the release, the dismissal or the covenant, or in the amount of the consideration paid for it, whichever is the greater. 8 (b) It shall discharge the party to whom it is given from all liability for any 9 contribution to any other parties.

10 . . . . Cal. Civ. Proc. Code § 877. 11 California law also provides a mechanism through which a settling tortfeasor can request a 12 determination that the settlement is in good faith in order to bar any further claims against the 13 settling tortfeasor related to the alleged tort or obligation: 14 15 [(a)(2)] [A] settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement 16 and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. The notice, application, and proposed 17 order shall be given by certified mail, return receipt requested, or by personal service. Proof of service shall be filed with the court. Within 25 days of the mailing 18 of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the 19 settlement. If none of the nonsettling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal 20 service, the court may approve the settlement. The notice by a nonsettling party shall be given in the manner provided in subdivision (b) of Section 1005. However, 21 this paragraph shall not apply to settlements in which a confidentiality agreement has been entered into regarding the case or the terms of the settlement. 22 . . . . 23 (c) A determination by the court that the settlement was made in good faith shall 24 bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative 25 indemnity, based on comparative negligence or comparative fault. 26 Cal. Civ. Proc. § 877.6(a)(2), (c). 27 A settlement is made in good faith under §§ 877 and 877.6 if it is within a “reasonable 28 range” of the settling parties’ proportionate share of liability to the plaintiff. Tech–Bilt Inc. v. 1 Woodward–Clyde & Assoc., 38 Cal.3d 488, 499 (1985). Courts, in making a good faith settlement 2 determination consider the following factors: (1) “a rough approximation of plaintiffs’ total 3 recovery and the settlor’s proportionate liability”; (2) “the amount paid in settlement”; (3) “the 4 allocation of settlement proceeds among plaintiffs”; (4) “a recognition that a settlor should pay 5 less in settlement than he would if he were found liable after trial”; (5) “the financial conditions 6 and insurance policy limits of settling defendants”; and (6) “the existence of collusion, fraud, or 7 tortious conduct aimed to injure the interests of nonsettling defendants.” Id. (citation omitted). 8 Any party opposing an application for good-faith settlement bears the burden of proving 9 “that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent 10 with the equitable objectives of the statute.” Id. at 499-500; see also Cal. Civ. Proc. Code § 11 877.6(d) (“The party asserting the lack of good faith shall have the burden of proof on that 12 issue.”). 13 When no party objects to the proposed settlement, the court may bypass the Tech–Bilt 14 factors and enter a finding of good faith when presented merely with “the barebones motion 15 which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief 16 background of the case.” City of Grand Terrace v. Super. Ct. of San Bernardino Cnty., 192 17 Cal.App.3d 1251, 1261 (1987); PAG–Daly City, LLC v. Quality Auto Locators, Inc., No. C 12– 18 3907 WHA, 2014 WL 807415, at **1–2 (N.D. Cal. Feb. 27, 2014); Bonds v. Nicoletti Oil, Inc., 19 No. CV–F–07–1600 OWW/DLB, 2008 U.S. Dist. LEXIS 79814, at *14, 2008 WL 4104272 (E.D. 20 Cal. Sept. 3, 2008) (granting motion for good faith settlement and declining to consider Tech–Bilt 21 factors because there was no opposition to the motion). 22 ANALYSIS 23 Here, no opposition or objection has been filed to the motion for good faith settlement 24 determination. Further, counsel for the United States has submitted a declaration explaining that 25 she has had several discussions with counsel for Doctors Medical, that Doctors Medical’s counsel 26 is aware of the conditional settlement and the amount of that settlement, and is aware that the 27 United States is seeking a good faith determination of the settlement to bar any attempt for 28 contribution or indemnity by Doctors Medical, or others, against the United States arising from 1 the facts of this action, the related state case, and/or Plaintiff’s hysterectomy. (ECF No. 22-1 at 1- 2 2.) 3 The United States served Doctors Medical with copies of the moving papers via email 4 sent to Doctors Medical’s counsel. (ECF No. 18-2 at 1.) The United States also informed Doctors 5 Medical of the continued hearing date, again through email to Doctors Medical’s counsel. (ECF 6 No. 22-1 at 7-9.) Doctors Medical’s counsel has repeatedly confirmed to counsel for the United 7 States that he did not expect Doctors Medical to oppose the United States’ request for good faith 8 settlement determination. (Id.) 1 9 As to the settlement itself, as there is no objection, there is no need for the Court to review 10 the Tech-Bilt factors. See City of Grand Terrace, 192 Cal.App.3d at 1261; PAG–Daly City, 2014 11 WL 807415, at **1–2; Bonds, 2008 WL 4104272. Nonetheless, out of an abundance of caution, 12 the Court has reviewed the Tech-Bilt factors in relation to the facts of this case, Plaintiff’s claims, 13 and the United States’ defenses. Consideration of these factors supports a good faith settlement 14 determination. 15 Finally, all parties are represented by competent counsel, who have chosen not to oppose 16 the terms of the settlement, nor have they opposed the request that the Court deem the settlement 17 to have been made in good faith. 18 Accordingly, in the absence of any objection, and based on the existing record in this case, 19 the Court concludes that the settlement reached between Plaintiff and the United States was made 20

21 1 During the hearing on the Motion for Good Faith Settlement Determination, the Court questioned whether the method of service of the moving papers was sufficient and pointed out that Cal. Civ. Proc. § 877.6(a)(2) requires 22 that the moving papers, including the proposed order, be served by certified mail, return receipt requested, or by personal service, and that proof of such service be filed with the Court. The Court requested that the United States 23 file a supplement addressing what appears to be a deficiency in the method of service. In response, the United States has filed a supplemental brief explaining that Doctors Medical, through its counsel, expressly agreed to accept personal service via email in light of the COVID-19 pandemic and the shelter in 24 place orders that were in effect at the time the motion was filed and service was accomplished. (ECF No. 24 .) As the United States explains, because no one was present at the offices of Doctors Medical to receive service of process in 25 person, Doctors Medical agreed to personal service via email. (ECF No. 24 at 2.) In support, the United States has attached a copy of an email between counsel for the United States and counsel for Doctors Medical in which Doctors 26 Medical’s counsel agrees that appropriate statutory notice under Cal. Civ. P. § 877.6 has been provided, that Doctors Medical has waived any other form of service, and that Doctors Medical does not oppose the motion for good faith 27 settlement determination. (EFC No. 24-1 at 2-3.) The Court finds that the statutory requirements for notice under Cal. Civ. P. § 877.6(a)(2) have been met. 28 1 in good faith and otherwise complies with § 877.6. The United States’ motion should therefore 2 be granted. 3 CONCLUSION and RECOMMENDATION 4 For the reasons discussed above, this Court RECOMMENDS, that 5 1. The Motion for Good Faith Settlement Determination (ECF No. 18), filed by 6 Defendant, the United States of America, be GRANTED; 7 2. The settlement between Plaintiff, Elisa Magallanes De Valle, and Defendant, the 8 United States of America, be found as made and entered into in good faith 9 pursuant to Cal. Code Civ. Proc. § 877.6(a) and (c); 10 3. Any party, person, or entity should therefore be barred from maintaining or 11 making any future claim(s) against Defendant, the United States of America, for 12 equitable comparative contribution or for partial or complete comparative 13 indemnity, under common law or statute, or based upon principles of comparative 14 negligence or comparative fault based upon the claims at issue in this matter; and 15 4. That the parties be directed to file a stipulation for dismissal of this action within 16 thirty days of the issuance of the order granting the Motion for Good Faith 17 Settlement Determination. 18 These Findings and Recommendations are submitted to the United States District Judge 19 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 20 Local Rules of Practice for the United States District Court, Eastern District of California. Within 21 fourteen (14) days after being served with these Findings and Recommendations, any party may 22 file written objections with the court and serve a copy on all parties. Such a document should be 23 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The district judge 24 will review the magistrate judge’s findings and recommendations pursuant to Title 28 of the 25 United States Code section 636(b)(1)(C). 26 \\\ 27 \\\ 28 \\\ wOoOw 4:40 ECON ES MMC ee PIO VOI eT OY

1 The parties are advised that failure to file objections within the specified time may waive 2 | the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 3 4 IT IS SO ORDERED. S| Dated: _ August 5, 2020 hey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28