Abarca, et. al. vs. Merck & Co., et.al.

Filing 1376

ORDER of Settlement signed by Judge Oliver W. Wanger on 7/18/2011. (Figueroa, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ATTO RNEY S AT LAW

E L D ORAD O HIL L S

GREENFIELD HARDY

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ABARCA, RAUL VALENCIA, et. al.,

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Plaintiffs,

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v.

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Case No. 1:07-CV-00388 OWW
DLB
ORDER OF SETTLEMENT

MERCK & CO., INC., et. al.,

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Defendants.

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ORDER FOR GOOD FAITH DETERMINATION
1:07-CV-00388 OWW DLB

ORDER

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Defendants Merced Irrigation District’s and Merced Irrigation District

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Drainage Improvement District No. 1’s Application for Determination of Good

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Faith Settlement and request for settlement was presented to this Court on June 10,

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2011.

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came before this Court on June 16, 2011 and then again on July 20, 2011.

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Having reviewed all documents filed with respect to this request and the matter

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submitted by all Counsel,

Supplemental declarations of counsel have been submitted and the matter

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This Court finds that:

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by the required two-thirds majority of all Plaintiffs, pursuant to

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the retainer agreement with Plaintiffs’ counsel. The Settlement

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Agreement, attached hereto as Exhibit A to this order, is binding

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upon all plaintiffs without the necessity of individual Plaintiffs’

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signatures on the Settlement Agreements. The execution of the

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Settlement Agreements by the Plaintiffs’ counsel of record in

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this matter is sufficient to bind all Plaintiffs to the terms set forth

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therein;

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The Settlement Agreements have been consented to in writing

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2.

The Application of MID and MDD#1 was made pursuant to the
provisions of California Code of Civil Procedure §877.6(a)(2);

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3.

Copies of the Application and Proposed Order were served by

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certified mail, return receipt requested, on this Court and on all

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parties to this action on June 10, 2011.
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ORDER FOR GOOD FAITH DETERMINATION
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4.

As of July 6, 2011, twenty six days have elapsed and no Notice

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of Motion to contest the good faith of the settlement was served

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or filed within the time prescribed by the California Code of

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Civil Procedure §877.6(a)(2).

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Therefore, the Court finds that the settlement agreement

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attached to the Application for Good Faith Determination was

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made in good faith between the parties to the agreement, within

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the meaning of California Code of Civil Procedure §877.6.

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Any claims of equitable comparative contribution or partial or

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comparative indemnity, based on comparative negligence or

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comparative fault against Merced Irrigation District or Merced

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Drainage District #1 are hereby dismissed and/or forever barred

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from being brought by any joint tortfeasor or co-obligor to these

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claims.

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6.

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Any and all claims of all Plaintiffs for contamination and/or

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environmental contamination are hereby dismissed with

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prejudice as and against MID and MDD#1.

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Claims means all actual, potential, threatened or alleged past,

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present or future claims, actions, counts, cross-claims, counter-

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claims, rights, obligations, liabilities, duties, demands, requests,

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suits, lawsuits, direct actions, administrative proceedings,

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Potentially Responsible Party letters, Notices of Responsibility,

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judgments, settlements, statutory or regulatory obligations,

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governmental agency claims, orders, demands or directives,
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arbitrations, mediations, causes of action and any other

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assertions or allegations of liability or responsibility of any kind,

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type or description whether legal or equitable, and whether

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currently known or unknown, asserted or unasserted, fixed or

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contingent, mature or unmatured, liquidated or unliquidated,

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direct or consequential, foreseen or unforeseen and whether

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sounding in tort, toxic tort, contract, equity, nuisance, trespass,

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negligence, strict liability, product liability or any other

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statutory, regulatory, administrative or common law cause of
action of any sort.

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Environmental Contamination means the actual, alleged,

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potential or threatened contamination or exposure of, or damage

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or injury to, air, environment, atmosphere, soil, sediments,

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property (including real and personal), water (including without

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limitation groundwater, surface water and any other form or

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body of water), or any person by, or arising from the presence,

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existence, movement, emission, discharge, dispersal, seepage,

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migration, release, disposal, dumping or escape of any solid,

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semi-solid, liquid, gaseous, or thermal irritants, contaminates,

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pollutants, toxins, vapors, soot, smoke, dust, mists, fumes, acids,

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alkalis, chemicals, oil, petroleum, biological or other etiological

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agents or materials, genetically engineered materials,

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teratogenic, carcinogenic, or mutagenic materials, waste

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materials of any type, or any other substance, irritant,

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contaminant or pollutant, or any form of toxic, hazardous or

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injurious substance or material, including without limitation any

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other substance or material alleged by any Person now or in the
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future to be detrimental, harmful, injurious, hazardous, noxious

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or toxic.

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Contamination Claims means any and all Claims that have been

emotional distress associated with actual exposure or the

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possibility of exposure to Environmental Contamination.

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Contamination Claims also includes, but is not limited to, the

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following claims for relief asserted by the Abarca Plaintiffs in

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their Eighth Amended Complaint against MID and/or MDD#1:

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Fifth, Sixth, Seventh, and Eighth Claims for Relief – Inverse

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Condemnation Non-BAC Facility Related (as to those

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allegations asserting damages for inverse condemnation

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resulting from discharge of Environmental Contamination);

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Ninth Claim for Relief-Inverse Condemnation related to BAC

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Contamination; Eleventh Claim for Relief-Dangerous Condition

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to Public Property (as to those allegations asserting damages for

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dangerous condition to public property resulting from

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Environmental Contamination); and Thirteenth Claim for

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Relief-Nuisance (as to those allegations asserting damages for

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nuisance resulting from Environmental Contamination); and any

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known or unknown claim for damages associated with

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Environmental Contamination which any Abarca Plaintiff could

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assert against MID and/or MDD#1 by further amendment to the

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Complaint.

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Contamination Claims shall also include the fear or anxiety or

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arising from or related to Environmental Contamination.

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MID and/or MDD#1 for alleged and/or actual damage or injury

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or could have been brought by the Abarca Plaintiffs against

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GRE E NFIE LD HA RD Y

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ORDER FOR GOOD FAITH DETERMINATION
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Pursuant to the Settlement Agreement, Exhibit A, all settlement

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drafts paid on behalf of MID and MDD#1 shall be delivered for

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deposit in the Shernoff Bidart Echeverria Client Trust Account

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on or before July 31, 2011.

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No funds received pursuant to the settlement agreement may be

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disbursed from the Shernoff Bidart Echeverria Client Trust

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Account unless and until an order of this Court is issued

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approving such disbursement.

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IT IS SO ORDERED.

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IT IS SO ORDERED.

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Dated:
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July 18, 2011

/s/ Oliver W. Wanger
UNITED STATES DISTRICT JUDGE
DEAC_Signature-END:

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