PREVATT v. PENNWALT CORPORATION (1987)

OPINION ON REHEARING

Defendant Pennwalt Corporation (Pennwalt) appeals ¹ from judgments on consolidated actions entered against it for personal injuries sustained by each of three plaintiffs arising from a caustic chemical explosion.   The appeal addressed to all five respondents deals exclusively with each of the six “sliding scale recovery agreements” (Code Civ.Proc., § 877.5)² entered into between each plaintiff and the two settling defendants.   Pennwalt claims (1) that the settlements are unconstitutional and deny it equal protection of the law and due process of law;  (2) that the trial court failed to follow procedural requirements established by section 877.6 ³ for good faith settlement; and (3) that in approving the settlements, the trial court failed to apply the good faith criteria established in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499–500, 213 Cal.Rptr. 256, 698 P.2d 159.   Alternatively Pennwalt urges this court that if the agreements are valid, it is entitled to claim credit for some or all of the sums paid by the settling defendants to each plaintiff pursuant to section 877.⁴

In its appeal from the judgment, Pennwalt urges this court to overturn the jury's verdict because of (1) an instructional error relating to the presence of a defect, (2) the failure of plaintiff to establish causation, (3) the failure to properly instruct the jury concerning the sliding scale agreements as required by section 877.5 and (4) the misconduct of plaintiff's counsel in comments made to the jury.   Pennwalt also claims that the trial court erred in denying its motion for new trial which was based on its claim of newly discovered evidence relative to the damages sustained by plaintiff Terry Prevatt.

We affirm the judgment of the trial court and the orders approving the good faith settlements except for the approval of the Criswell settlement which we remand for reconsideration in light of this opinion.

FACTS

Appellant Pennwalt manufactures industrial chemicals, including “flake caustic soda” (caustic) packaged in 50 pound bags and distributed throughout the United States.   At the time of plaintiffs' injuries, these bags bore a label which read,

“PENNWALT

“FLAKE

“CAUSTIC

“SODA

“(SODIUM HYDROXIDE)

“DANGER$  CAUSES SEVERE BURNS OR BLINDNESS

“Do not handle or use until safety precautions in MCA Chemical Safety Data Sheet SD–9 has been read and understood.

“Do not get in eyes, on skin, on clothing.   Avoid breathing dust or mist.   Do not take internally.   Wash thoroughly after handling.   Keep container closed.   When handling, wear protective clothing, including goggles and face shield, rubber gloves and apron.

“If exposure to mist or dust may occur, wear appropriate respiratory protection and use with adequate ventilation.

“To avoid a rapid temperature rise and violent spattering add small amounts of Caustic Soda slowly and evenly to the surface of the water with constant stirring.   Heat water to 80 [degrees] F to 100 [degrees] F before adding the product.

“Water should not exceed 160 [degrees] F during addition.   Never increase the concentration of Caustic Soda in solution by more than 5% with any single addition.

“If this product reacts violently or explosively with some organic chemicals, see Section 7.3.5 of MCA Chemical Safety Data Sheet SD–9.

“FIRST AID:  In case of contact, immediately flush skin of eyes with plenty of water for at least 15 minutes.   Remove contaminated clothing and shoes and wash them before re-use.   Call a physician.

“SPILL OR LEAK:  In case of spillage, scoop up and remove.   Flush area with water.

“STORE IN A COOL DRY AREA.

“EMPTIED CONTAINER MAY BE HAZARDOUS BECAUSE OF PRODUCT RESIDUE.   Label precautions must be followed.”

The ultimate destination of any given bag of caustic is unknown at the time of manufacture.   It is known, however, that it could be applied to a variety of industrial uses, including drilling for oil.

Pennwalt's caustic soda was purchased by Baroid Division of N.L. Corp. (Baroid) which provided sales engineers to oil drilling companies.   These engineers would examine drilling fluid (mud) at a given well site and recommend chemical treatment for the fluid.   Amongst the treatments recommended was the addition of caustic soda to drilling mud during drilling operations.

At the time of the accident, plaintiffs were oil field workers employed by Kenai Drilling.⁵  Defendant Quintana Corporation had retained the services of Kenai to drill for oil from the oil rig upon which this accident occurred.

The accident occurred on August 29, 1981.   Plaintiff Stephen Prevatt, who had limited experience in the oil industry, had been on the job for approximately four days.   On a previous occasion, he had been instructed to add chemicals to water in a mixing barrel for use in drilling operations. Over the preceding 4 days, he had dumped 15 to 20 bags of various chemicals into water for addition to the drilling mud.   On the date of the accident he had been instructed to dump two bags of caustic into the mud pit through the mixing barrel—a barrel filled with water into which the caustic was poured and then allowed to drip into the mud used in the drilling process. He complied with his instructions by tearing the top off the first bag and dumping it into the water filled mixing barrel.   As he bent over to pick up the second bag of caustic, the solution exploded showering chemicals on him, his brother Terry and fellow employee James Criswell.

As a result of the explosion, each plaintiff suffered severe and disabling chemical burn injuries.⁶

PROCEDURAL HISTORY

This consolidated action began as three separate actions brought respectively by Terry Prevatt, Stephen and Joanne Prevatt and James and Becky Criswell.   Defendants Baroid and Quintana answered and filed cross-complaints for both complete indemnity and partial equitable indemnity. All actions and cross-actions were consolidated by stipulation.

Between November 4, 1983, and January 27, 1984, three settlement conferences were held.   On January 27 Quintana and Baroid sought and, without objection, were granted an order shortening time for a good faith settlement hearing on Stephen Prevatt's case to be heard on February 3, 1984.   On February 3 the motions of Quintana and Baroid were heard and, over Pennwalt's objection, the sliding scale settlement agreements were found to have been made in good faith.⁷

The remaining cases were confirmed for trial on March 9, 1984.   On March 7, 1984, counsel for Quintana sought an order shortening time and gave notice it would seek an order approving its settlement with Terry Prevatt.   The proposed agreement was essentially the same as Stephen's.   While the sums to be paid and some of the payment conditions differed from Stephen's settlement, the sliding scale with no guaranteed minimum remained.   Due to a court mixup, the motion was continued to March 19.   On March 14, 1984, Baroid noticed its intention to move for order shortening time and for an order declaring its settlement with plaintiff Terry Prevatt to be in good faith.   As in Stephen's case, Baroid's agreement tracked Quintana's.

On March 19, 1984, the trial judge referred the case to yet a fourth judge to conduct a further settlement conference. Settlement was not achieved, and the case was returned for trial.⁸

On March 20, 1984, the parties again appeared before the trial judge on further settlement matters.   For the first time clear reference is made to a settlement between James Criswell and Quintana/Baroid.   There was, however, no written motion or other written application for order shortening time or motion for good faith settlement of the Criswell case.   The first and only reference to his settlement is in the transcript of proceedings of March 20 in which the settlement was announced and its terms set forth.  (See infra, p. 501.) The court granted the motion over Pennwalt's objection.

All plaintiffs then proceeded to trial against Pennwalt.   Following 11 days of trial, the jury awarded Terry Prevatt $593,934;  Stephen Prevatt $728,271;  and James Criswell $236,427.⁹

THE SETTLEMENTS

 Pennwalt and amici urge this court to declare sliding scale recovery agreements unconstitutional because they deny the nonsettling defendant equal protection of the law and due process of law.   Should we not be so inclined, we are urged to declare such agreements void as against public policy to the extent that the agreement does not contain a minimum guaranteed payment.   We decline the invitation.

 “[T]o preserve the incentive to settle which section 877 provides to injured plaintiffs, we conclude that a plaintiff's recovery from nonsettling tortfeasors should be diminished only by the amount that the plaintiff has actually recovered in a good faith settlement, rather than by an amount measured by the settling tortfeasor's proportionate responsibility for the injury.  [Citation.]”  (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d at p. 604, 146 Cal.Rptr. 182, 578 P.2d 899.)   This concept of proportionality, which is the cornerstone of tort recovery in California, establishes a standard which must vary depending upon whether it is being applied to settlements or to the adjudication of responsibility between parties in trial.

 One purpose of tort law, as it has evolved in California, is to insure that, under established concepts of joint and several liability, a concurrent tortfeasor whose negligence is a proximate cause of an indivisible injury remains liable for the total amount of damages sustained by the plaintiff diminished only in proportion to the amount of negligence attributable to the person recovering.  (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578, 590, 146 Cal.Rptr. 182, 578 P.2d 899, citing Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 829, 119 Cal.Rptr. 858, 532 P.2d 1226.) However, this concept of a “concurrent tortfeasor” does not necessarily include all persons who have contributed to plaintiff's loss.   For example, a proportionate share of plaintiff's damage is not borne by plaintiff's employer who may also be a concurrent tortfeasor.¹⁰  The employer is immune from suit by the employee, his recovery being limited to a workers' compensation claim under the Labor Code.¹¹  Statutory and case law are replete with examples of parties who are demonstrably responsible for a harm or wrong, yet who are insulated from liability by considerations which override Li 's equitable principle that a party should be held monetarily accountable in proportion to that party's fault.   Thus, the landowner whose negligence joins with that of another in injuring a recreational user upon his property is insulated from liability and need not contribute proportionately or otherwise to compensate for the wrong he may have caused.  (Civ.Code, § 846;  Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, 140 Cal.Rptr. 905.)   So, too, under certain circumstances, public entities are immune from liability for their negligence or that of their employees.  (Gov.Code, §§ 815, 835 [for example, fire fighters would not be liable for their negligence in fighting a fire due either to their efforts] City and County of San Francisco v. Superior Court (1984) 160 Cal.App.3d 837, 207 Cal.Rptr. 6 [or the equipment employed] New Hampshire Ins. Co. v. City of Madera (1983) 144 Cal.App.3d 298, 192 Cal.Rptr. 548.)

In seeking to fairly assign and apportion fault, evolving principles of tort law have sought to accommodate the needs of the litigants and of the system as well.   As was noted in Sears, Roebuck & Co. v. International Harvester Co. (1978) 82 Cal.App.3d 492, 496, 147 Cal.Rptr. 262, the courts have established a hierarchy of interests in the resolution of such disputes:  “First in the hierarchy is maximization of recovery to the injured party for the amount of his injury to the extent fault of others has contributed to it.  (See Li v. Yellow Cab Co., supra, 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226, eliminating the bar to recovery of contributory negligence, and American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d 578 [146 Cal.Rptr. 182, 578 P.2d 899], retaining the rule of joint liability of concurrent tortfeasors and holding named defendants liable for damage assessable against unnamed persons.)  [Fn. omitted.]   Second is encouragement of settlement of the injured party's claim.  (American Motorcycle Assn. v. Superior Court, supra, 20 Cal.3d at pp. 603–604  [146 Cal.Rptr. 182, 578 P.2d 899].)  Third is the equitable apportionment of liability among the tortfeasors.  (Id., 20 Cal.3d at pp. 603–605 [146 Cal.Rptr. 182, 578 P.2d 899].)”  (See also Fisher v. Superior Court (1980) 103 Cal.App.3d 434, 447, 163 Cal.Rptr. 47;  Riverside Steel Construction Co. v. William H. Simpson Construction Co. (1985) 190 Cal.App.3d 1175, 1186, 227 Cal.Rptr. 424;  Abbott Ford, Inc. v. Superior Court (1985) 190 Cal.App.3d 1286, 1292, 228 Cal.Rptr. 250.)

Add to this the need for settlement which recognizes that the plaintiff will accept less than what he perceives to be the full value for his case and that the defendants will pay more than what they perceive to be their respective exposures for the certainty of a final settlement.   Rules which tend to compromise the ability of the parties to reach such an accord ought to be viewed with caution.

In American Motorcycle, the Supreme Court recognized that settlement of a case will necessarily affect the apportionment of payments to the plaintiff.   The court insisted that the parties to settlement must act in good faith with respect to nonsettling tortfeasors.  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d 488, 499–500, 213 Cal.Rptr. 256, 698 P.2d 159;  see River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d 986, 993, 103 Cal.Rptr. 498 [holding that the statutory obligation of good faith extends to the nonsettling parties as well as the parties to the settlement].)

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, the Supreme Court set forth some of the many factors which the trial court may consider in determining whether or not the settling parties made their settlement in “good faith.”   The factors to be considered included, among other things, “whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries.   This is not to say that bad faith is ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’  [Citation.]   Such a rule would unduly discourage settlements.  ‘For the damages are often speculative, and the probability of legal liability therefor is often uncertain or remote.   And even where the claimant's damages are obviously great, and the liability therefor certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.’  (Stambaugh v. Superior Court (1976) 62 Cal.App.3d 231, 238 [132 Cal.Rptr. 843].)  Moreover, such a rule would tend to convert the pretrial settlement approval procedure into a full-scale minitrial [citation].”  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 499, 213 Cal.Rptr. 256, 698 P.2d 159, emphasis added.)

In each of the instant matters, appellant and amici urge this court to find that the sliding scale recovery agreements at issue were made in bad faith because, inter alia, there is no guaranteed minimum payment that must be made by one or more of the settling parties.   They protest that the possibility of a verdict which would exonerate a joint tortfeasor from any contribution should, as a matter of constitutional law and public policy, render any such agreement in bad faith.   In stating their cause, they repeatedly ask for a determination of the amount of money each tortfeasor should contribute to settle the plaintiff's claim.   Inherent in this argument is the assumption that the plaintiff will ultimately prevail as against the nonsettling defendant (or indeed against any or all of the defendants) and that he will prevail in a sum which effectively eliminates the “settling” ¹² party from making any contribution at all.   Indeed, amici have favored us with a graph showing that in most, if not all, sliding scale cases the nonsettling tortfeasor ultimately bears the entire loss.

This argument assumes that plaintiff will prevail in some amount against any or all of the defendants;  it assumes the likelihood that plaintiff will prevail against the nonsettling tortfeasor in an amount which would minimize or eliminate disproportionately the contributions of the settling tortfeasors and it further assumes that sliding scale agreements neither encourage settlement nor result in a loss to plaintiff.   Not reported, and probably difficult to obtain, is the number of sliding scale agreements in which plaintiff lost as against the nonsettling party against whom he proceeded to trial or those cases in which a sliding scale agreement was entered into with a party which resulted in bringing the recalcitrant party to the bargaining table for settlement.

Appellant's argument ignores what we believe to be apparent from the very nature of the settlement process:  as cases approach trial, the pressure to settle increases.   When one party settles, others often rush in to close the entire action.  “[E]xperienced trial judges, and particularly those who have spent a great deal of time in settlement work, know that only a small percentage of multidefendant cases ever go on through a completed trial once there has been a settlement or a sliding scale recovery agreement by one or more, but less than all, of the defendants in any given case.   In fact the argument is often used by defendants who are not parties to settlements with less than all defendants on sliding scale recovery agreements that by virtue of them they are subjected to acute financial pressures bordering on extortion to avoid an unshared judgment.  [Citations.]”  (Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d at p. 1185, 227 Cal.Rptr. 424.)

As stated in Tech-Bilt:  “[T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including a rough approximation of plaintiffs' total recovery and the 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 he would if he were found liable after a trial.   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 to injure the interests of nonsettling defendants.  [Citation.]   Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement․”  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 499, 213 Cal.Rptr. 256, 698 P.2d 159.)

Four other courts have recently discussed sliding scale agreements without a guaranteed minimum and have found such agreements to be valid when properly made.   These courts have likewise found the Tech-Bilt good faith requirements applicable to such settlements.¹³

In both Riverside Steel and City of Los Angeles, the nonsettling defendants raised the constitutional issue here raised by appellant and by amici.   They claimed that “the statutory scheme treats nonsettling defendants under a sliding scale agreement (§ 877.5) differently and to their detriment from nonsettling defendants under the release statute (§ 877).”  (City of Los Angeles v. Superior Court, supra, 176 Cal.App.3d at p. 862, 222 Cal.Rptr. 562.)

 Relying upon Riverside Steel 's finding that sliding scale agreements are rationally related to the state's legitimate interest in fairly resolving cases, the Los Angeles court held “that any disparate treatment of nonsettling defendants vis-à-vis settling defendants and plaintiffs requires merely that the distinctions drawn by the statute bear some rational relationship to a conceivable legitimate state purpose.”  (City of Los Angeles v. Superior Court, supra, 176 Cal.App.3d at p. 863, 222 Cal.Rptr. 562.)   We join with these decisions and hold that the legislative scheme established for sliding scale recovery agreements (§ 877.5) does not run afoul of either state or federal equal protection considerations.¹⁴

 We further join with the recent decisions and add to them (1) our belief that the evaluation of the sliding scale recovery agreement must necessarily consider the relative economic positions and liability exposure of the parties including the plaintiff and the presence or absence of a minimum guaranteed payment as a factor in the Tech-Bilt formula;  as well as (2) our concern that any provision which expressly or impliedly precludes a settlement between the claimant and a nonsettling party should call into question the good faith of the settlement agreement.   Such a provision would directly contravene one of the principal purposes of settlement and necessitate, rather than eliminate, a trial.¹⁵  (Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d at p. 1192, 227 Cal.Rptr. 424.)

In sum, we acknowledge expressly that which the cited authorities acknowledge implicitly:  as cases proceed toward the courthouse door, the variety of factors giving impetus to settle are as varied as the causes which bring them there.   The road to a judgment is uneven and the hazards encountered in trial cannot be predicted with certainty.   The trial judge is in the best position to act as traffic officer and to determine the priorities of movement on the highway.   Often, as in the instant matter, the dynamics of settlement will change not only from day to day but, as here, from hour to hour.   Indeed, as defendants settled out, appellant pressed the trial court for a continuance or other relief.   Witnesses to be produced by a codefendant were no longer under subpena;  facts appellant hoped to develop with codefendants present now vanished.   The entire texture of the case had changed.   Of such stuff are settlements made.

 It is always the case that when a party declines to settle, it does so at its peril.   Any attempt to place the changing shape of a case as it moves from complaint to trial into some Procrustean bed fitting all cases is patently unreasonable.  Tech-Bilt set out the broad range of considerations to be made by the settlement judge.   They are, however, factors to be considered and not a check list rigidly to be adhered to.

STEPHEN PREVATT

On February 2 and 3, 1984, Quintana and Baroid formally noticed motions to have their settlement with Stephen Prevatt declared to be in good faith.¹⁶  In the moving papers, each party set forth the terms of the agreement and correctly observed that the burden was now upon any objecting party to demonstrate that the settlement lacked good faith.  (§ 877;  Fisher v. Superior Court, supra, 103 Cal.App.3d 434, 447, 163 Cal.Rptr. 47.)   The proposed settlement provided, inter alia:

1. Quintana would pay $150,000 and Baroid $100,000 directly to Stephen in the form of a non-interest bearing loan to be repaid in the event enumerated contingencies should occur:

(a) If the case proceeded to trial against a “non-settling defendant” ¹⁷ and a net verdict ¹⁸ equalled or exceeded $312,500, then the entire loan was to be repaid;

(b) If the net verdict was less than $312,500 but more than $62,500, Quintana was to be repaid 60 percent of such difference and Baroid 40 percent.

2. If plaintiff settled with all defendants for more than a net settlement of $350,000 including the settlor's payment, no repayment was to be made.

3. If plaintiff settled with all defendants for a net settlement of less than $350,000 including the settlor's payment, then the entire loan had to be repaid.

4. Should plaintiff receive a net verdict of less than $62,500 at trial, then Quintana would contribute 60 percent and Baroid 40 percent of the difference between the judgment and $62,500.

In effect, the settlement as to Stephen required $250,000 “up front” with an assurance of a minimum settlement of $312,500 should he proceed to trial.   Stephen was free to effect settlement with Pennwalt providing it was in a sum of at least $100,000.¹⁹

Pennwalt's written objections to this settlement, although said to be two, were really one:  the parties to the agreement failed to promptly inform the court of the terms of the agreement.²⁰

At the hearing on February 3, 1984, counsel for Pennwalt elaborated on his position.   During the colloquy between the court and counsel, plaintiff's counsel expressed his concern that Pennwalt had never treated the case as other than of nuisance value, that he had explored all avenues of settlement with Pennwalt and that Pennwalt even at this late hour still took an uncompromising position.   Pennwalt never expressed its opinion of the value of the case and generally disparaged plaintiff's case against it and Baroid, whom it viewed as being similarly situated to itself.

In substance, Pennwalt took the position that the case did not merit its consideration for settlement but it did not like the prospect that it might stand alone if its analysis was wrong$  In short, it was not going to settle and would object to any settlement by codefendants unless it profited from that settlement.

The main thrust of its objection was that the role it would now play in trial had been radically altered by the settlement and it simply was not ready.   Thus Pennwalt minimized its exposure, implicitly conceded that it had not and would not make a meaningful offer, and if it was to fall, it wanted its codefendants to share the risk.   Its position ignored the reality of the moment and plaintiff's right to maximize his settlement.

 Although it complained that this was not a “ballpark” settlement, and that plaintiff had only a minor league case, Pennwalt ignored plaintiff's batting average, lineup, manager and the league standings.   In short, it appears from the record that all parties except Pennwalt came to play baseball.   Now that the game is over Pennwalt wants to play hardball.  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 499, 213 Cal.Rptr. 256, 698 P.2d 159;  Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d at p. 1188, 227 Cal.Rptr. 424.)   In the language of the law, Pennwalt made no showing of a lack of good faith.   Absent some minimal, prima facie showing, Pennwalt cannot complain of the settlement;  this settlement was in good faith.

What next occurred between the remaining plaintiffs and the settling defendants was relatively predictable.   A plaintiff had settled;  other plaintiffs similarly situated would likely be moved to settle with defendants who already had evidenced a settlement disposition.   The trickle of settlement was turning into a torrent which ultimately engulfed the nonsettling party in a deluge which it could have dammed and now only damns.

TERRY PREVATT

On February 3 Stephen settled with Baroid and Quintana.   The remainder of the action was confirmed for the trial calendar for March 9, 1984.   By notice dated March 7, 1984, Quintana gave notice of its intent to seek an order shortening time for hearing of its motion for good faith settlement with Terry Prevatt.   The notice announced that the settlement ²¹ “provide[d] for a guaranteed verdict arrangement with Prevatt ․ depending upon the amount of any verdict or settlement obtained by Prevatt from the remaining defendants.”   A judge other than the one who approved Stephen's settlement presided over the March 9 proceedings.   Pennwalt's counsel acknowledged receipt of the Quintana notice but the court had no record of it.   Nonetheless, Pennwalt very clearly objected to the settlement, making clear that it had not seen the settlement terms and that it was not ready for trial.²²  All matters were continued to March 19, 1984, before a third judge.

On March 14 Baroid filed its motion for determination of a good faith settlement with Terry Prevatt.   Except for the dollars to be paid, its language was identical to Quintana's motion.   On the same date, Pennwalt filed its objections to the settlement and sought a continuance of both the hearing and the trial.   Its objections were identical to those made to Stephen's settlement.   In its papers in opposition to Terry's settlement, Pennwalt acknowledges that a sliding scale agreement, similar to Stephen's was to be made with Terry.

On March 19 a third judge received the cause for trial.²³  The good faith settlement was argued, and a letter of March 16, 1984, recounting the settlement was received.²⁴

On March 20 the cause was again called for trial.   After counsel for Criswell stated the purported settlement agreement between his clients and Quintana and Baroid (infra ), counsel for Terry detailed his settlement agreement.   During this discussion, counsel for Pennwalt questioned Terry's counsel on the terms of the settlement.   He was apparently satisfied that its terms were completely set forth.   After this discussion, the parties bickered over which witnesses were to be produced and by whom.   The settlement was approved.

“Upon the trial of the ‘good faith’ settlement issue, the burden of proving that there has been a settlement is on the settlor who asserts that settlement as a bar to all claims for contribution or comparative (equitable) indemnity by any other tortfeasor.   Proving the settlement is not ordinarily a problem.   Once there is a showing made by the settlor of a settlement, we are of the opinion that the burden of proof on the issue of ‘good faith’ shifts to the nonsettling tortfeasor who asserts the claim that the settlement was not made in good faith.”  (Fisher v. Superior Court, supra, 103 Cal.App.3d 434, 447, 163 Cal.Rptr. 47.) ²⁵  No such showing was made by Pennwalt.

 This court accepts as its mandate that the judgment of the lower court is presumed correct.   We will indulge in all intendments and presumptions which support the court's judgment even on matters as to which the record is silent.   We further agree that error must be affirmatively shown.  (Laymon v. Simpson (1964) 225 Cal.App.2d 50, 52–53, 36 Cal.Rptr. 859;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 268, pp. 276–277.)

 On March 9, the parties appeared in court for trial and for hearing on the question of Terry's good faith settlement.   Pennwalt objected asserting it really was not prepared and wanted additional time to examine the settlement.   Counsel for Baroid pointed out that it was essentially the same as Stephen's settlement.   In any case the matter was continued to March 19.   As of March 20, the date Terry's settlement was finally approved, settlement discussion had been ongoing for several months.   The terms upon which Terry settled on March 20 were generally set forth in Stephen's settlement of February 3 and elaborated on in open court on March 9.   The court's order shortening time for the settlement hearing was not an abuse of discretion.   In Barajas v. USA Petroleum Corp. (1986) 184 Cal.App.3d 974, 988, 229 Cal.Rptr. 513, we held one-day notice to be sufficient where the case was about to start trial.   Here Pennwalt had 10 days' notice and had already been through one hearing on a similar settlement.   We affirm Terry's settlement as being in good faith.

JAMES CRISWELL

By March 19, it became clear to Criswell that the flood of settlements in which the case was now engulfed either led on to his fortune or if bypassed left him wallowing in the shallows and the miseries of trial.²⁶  He opted for good fortune.   The nature of that election, however, remains an enigma.

On March 20 the court determined that a good faith settlement between James and Rebecca Criswell and Quintana and Baroid had occurred.   The entirety of the agreement as reflected in the transcript is as follows:

Counsel for Criswell:  “That there will be $125,000 total guaranteed to the plaintiffs, the Criswells, payable, Quintana $75,000, N.L. Industries $50,000, your Honor;  that any amount below $125,000 not recovered by verdict will be paid within twenty days of the jury's verdict in this case;  that the plaintiffs Criswells may not settle with Pennwalt for a sum of less than $35,000;  that the $125,000 guarantee is by verdict or settlement.

“For example, if in fact Pennwalt were to offer $35,000 and the plaintiff Criswells were to accept, then Quintana and Baroid would owe an additional $15,000 to make up the difference.”

Counsel for Baroid:  “I think you misspoke.   I think then N.L. and Quintana would go $90,000 total.”

Counsel for Criswell:  “That is correct.” ²⁷  To this “settlement” counsel for Pennwalt objected on the same basis as “yesterday” ²⁸ and on the additional ground that Pennwalt discovered it did not have any cross-complaints in the file.   The Criswell/Quintana/Baroid settlement was thereupon approved.

 We reverse the order of the trial court approving the Criswell “settlement.”   Although both Prevatts settled after orders shortening time were granted and upon duly noticed motions, the Criswell settlement came without notice of any sort.   Moreover, by its own terms it is difficult to say precisely what the terms of the settlement were or whether it was or was not a “sliding scale recovery agreement.”   Whatever it was, its very existence was unknown but moments before its statement and approval.   The trial court is directed to conduct a hearing in conformity with section 877.6 in determining whether or not the settlement was made in good faith.

In summary, we have been presented with one settlement occurring well before trial and processed in an orderly manner (Stephen Prevatt), one reached at the courthouse steps (Terry Prevatt) and one sought as trial commenced (Criswell).   This lengthy review is testimony to that which all trial judges and civil trial advocates well know:  the settlement and trial process is a fluid one whose only constant is change.   While in strict Newtonian terms every action of one party may not call for an equal and opposite reaction of the other (or of the court), any action requires all other parties to modify and adjust their positions.   This movement is best monitored and controlled by a capable trial judge, diligently monitoring the respective positions taken by each party in an effort to insure that the legitimate objectives of the parties and of the court are achieved.

 It is incumbent upon the trial judge to strike the balance of compensating injured claimants, apportioning fault equitably amongst the parties and totally resolving lawsuits.   The criteria set forth in Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d 488, 499–500, 213 Cal.Rptr. 256, 698 P.2d 159, are not seen by this court as exclusive.   They are but some of many factors which a trial judge is to consider in determining whether or not to approve a settlement as being in good faith.   It appears clear in this case, however, that the settling defendants obligated themselves to pay large sums of money to severely injured plaintiffs.   The objecting party throughout all of its objections has failed to make evident to this court how such an agreed upon exposure would be in bad faith when, by the very posture it took throughout the course of proceedings, its anticipated result was that plaintiffs would not prevail.   Defendant has not contested the legitimacy of the numbers nor suggested for a moment that plaintiffs' risk in going to trial was not a very real one. Since we are ever after “ballpark” settlements (Tech-Bilt, supra, 38 Cal.3d at p. 499, 213 Cal.Rptr. 256;  Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d 1175, 1188, 227 Cal.Rptr. 424), we can only allow as how on this record the only thing out of the ballpark was the home run struck by plaintiffs against appellant.

Pennwalt urges this court that even if we are not inclined to reverse we should remand the matter to the trial court in order to allow that court to assign a value to the settlement.   Pennwalt asserts that it is entitled to a credit for whatever value is given to these settlements.  (§ 877.)

 This record shows that Pennwalt consistently refused any overture for settlement.   Pennwalt did not meet its burden of proof in demonstrating that the settlements were in bad faith.  (§ 877.6, subd. (d);  Fisher v. Superior Court, supra, 103 Cal.App.3d at p. 447, 163 Cal.Rptr. 47.) Yet it now wants credit for a value to be ascribed to the very settlements it here contends are chimerical.   Although one case has suggested that such a settlement has a value (Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d at p. 1188, 227 Cal.Rptr. 424), we reject such an approach. First, it would require the kind of “minitrial” which Tech-Bilt discouraged.  (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at p. 499, 213 Cal.Rptr. 256, 698 P.2d 159;  see p. 496, supra.)   Second, it would give a windfall to the very party that sought to frustrate and defeat the settlement—a settlement desperately needed by seriously injured claimants who would receive immediate and substantial financial relief and not be relegated to the prospect of “pursuing the tortfeasors through what might be an obstacle course of litigation.”  (Abbott Ford, Inc. v. Superior Court, supra, 190 Cal.App.3d at pp. 1294–1296, 228 Cal.Rptr. 250.)   Were we to accept appellant's position, we would be rewriting the legitimate agreement of the parties for no apparent reason.

INSTRUCTIONAL ERRORS

The case was presented to the jury based on alternative theories of strict liability. One theory was that the failure to provide a spout or other packaging that would regulate the flow of caustic when added to water constituted a defect under the benefits/risk theory set forth in Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 431–432, 143 Cal.Rptr. 225, 573 P.2d 443. The alternate theory was that the container failed to adequately warn of the danger of explosion if the caustic was improperly mixed with water.  (Barker, supra, at p. 428, 143 Cal.Rptr. 225, 573 P.2d 443;  Finn v. G.D. Searle & Co. (1984) 35 Cal.3d 691, 699, 200 Cal.Rptr. 870, 677 P.2d 1147.)   Although passing reference is made by appellant to judicial error in lumping both theories together when instructing on “design defects,” no complaint is made that each may be a defect for purposes of strict liability nor does appellant complain that the jury was improperly instructed concerning the definition of each claimed defect. Rather, appellant complains that error was committed by the trial judge when, in giving BAJI No. 2.60, he instructed the jury that it was the plaintiff's burden to prove “[t]hat the defect in the design of the bag of caustic soda existed when the product left the defendant's possession․” ²⁹  Appellant urges us that this instruction assumed that a defect existed when that was one of the key issues to be decided.³⁰  Read alone, such an inference could be made.   To do so, however, one would have to ignore the alternative definition of defect given to the jury, the arguments of all counsel explaining the burden of proof to the jury and the special verdict which asked if there was a defect in the design of the product.

Appellant's reliance on Lunghi v. Clark Equipment Co. (1984) 153 Cal.App.3d 485, 496–498, 200 Cal.Rptr. 387, is misplaced.   In Lunghi, as here, the draft of the instruction stated that the plaintiff bore the burden of proof in showing that the defect in design existed when the product left the defendant's possession.   The trial court changed “the” to “a” defect, thereby placing upon plaintiff the burden of showing the presence of a defect—a burden plaintiff does not have in a design defects case.  “ ‘․ [O]nce the plaintiff makes a prima facie showing that the injury was proximately caused by the product's design, the burden should appropriately shift to the defendant to prove, in light of the relevant factors, that the product is not defective.’  (Barker v. Lull Engineering Co., supra, 20 Cal.3d 413, 431 [143 Cal.Rptr. 225, 573 P.2d 443];  [citations].)”  (Lunghi v. Clark Equipment Co., supra, 153 Cal.App.3d at p. 497, 200 Cal.Rptr. 387.)

 Although the instruction was technically in error, when considered in the context of all other instructions given to the jury, the thrust of the evidence and the comments of counsel in their summations, we do not believe that this instructional error was prejudicial within the meaning of the law.  (Bracisco v. Beech Aircraft Corp. (1984) 159 Cal.App.3d 1101, 1107– 1108, 206 Cal.Rptr. 431.)

CAUSATION

 Appellant next contends that plaintiffs failed to establish any causal connection between the failure to warn and the accident.   The argument is based on appellant's claim that all plaintiffs acknowledged that they did not read the label on the bag of caustic and that plaintiffs' own expert could not establish the changes to the label would have prevented the accident.   The argument is unsupported by the record.   The testimony of the expert, a cognitive psychologist, did establish that the labels failed to perform their intended purpose— to attract the user's attention and to appropriately warn of danger.   The problem was that the bag did not call attention to itself and was not easily distinguished from many other similar-sized bags with different contents which had been dumped into water and which did not explode.   Further, appellant fails to address the alternate theory suggesting that a spout or nozzle would have prevented the problem.   This testimony was before the jury and, at best, raised a factual issue for the trier of fact to resolve.

We consider the evidence in the light most favorable to the prevailing party giving to them the benefit of every reasonable inference and resolving conflicts in support of the judgment.  (9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 278, p. 289.)   We find appellant's authorities inapposite for, as respondent Terry Prevatt points out, “[t]he fact that none of the workers read the warning is probably the best evidence of its inadequacy.”   The evidence shows that the warning failed to attract attention either by color or wording, failed to warn of the very danger here at issue and, to the extent that a more detailed warning was available not only failed to establish availability but, to the contrary, established that it was no longer in print.   This is more than enough evidence to support the verdict.

REMAINING ISSUES

Appellant urges us to reverse because the jury was improperly instructed concerning what effect a sliding scale recovery agreement may have upon a witness' credibility.  (§ 877.5, subd. (a)(2).)

During trial the parties stipulated to such an instruction.   Appellant now complains that this instruction was defective and that this error was compounded by a later instruction which admonished the jury to make its award without regard to any other settlement.

 Any objection by appellant to the first instruction was waived by the stipulation.  (Morris v. Frudenfeld (1982) 135 Cal.App.3d 23, 34, 185 Cal.Rptr. 76;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 301, p. 313.)   The essence of the second instruction was to admonish the jury to not consider other settlements in making its award.   This is a correct statement of the law.  (§ 877;  Shepherd v. Walley (1972) 28 Cal.App.3d 1079, 1082–1083, 105 Cal.Rptr. 387.)   Moreover, it was never suggested to the jury that any specific sum had been paid.   It is difficult to see how the jury was thus misled.   Any error, however, was patently without prejudice.  (Cal. Const., art. VI, § 13;  9 Witkin, Cal.Procedure (3d ed. 1985) Appeal, § 325, p. 335.)

Appellant next complains that counsel for Stephen Prevatt deliberately engaged in prejudicial misconduct during his opening statement and his closing argument.   Appellant complains that counsel's repeated exhortations to the jury inviting them to consider how they would feel if they were in plaintiff's shoes constituted misconduct.³¹

 Appellant now belatedly assigns these comments as misconduct.   While plaintiff's argument runs afoul of the legal prohibition that you “shalt not ask the jury to do unto others what it would do for itself” (Beagle v. Vasold (1966) 65 Cal.2d 166, 182, fn. 11, 53 Cal.Rptr. 129, 417 P.2d 673 [prohibiting counsel from making the so-called “ ‘golden rule’ ” argument] ), at no time did appellant voice an objection.  “Generally a claim of misconduct is entitled to no consideration on appeal unless the record shows a timely and proper objection and a request that the jury be admonished.  [Citations.]   The purpose of the rule requiring the making of timely objections is remedial in nature, and seeks to give the court the opportunity to admonish the jury, instruct counsel and forestall the accumulation of prejudice by repeating improprieties, thus avoiding the necessity of a retrial.  ‘It is only in extreme cases that the court, when acting promptly and speaking clearly and directly on the subject, cannot, by instructing the jury to disregard such matters, correct the impropriety of the act of counsel and remove any effect his conduct or remarks would otherwise have.’  (Tingley v. Times Mirror [1907] 151 Cal. 1, 23 [89 P. 1097].)  In the absence of a timely objection the offended party is deemed to have waived the claim of error through his participation in the atmosphere which produced the claim of prejudice․”  (Horn v. Atchison, T. & S.F. Ry. Co. (1964) 61 Cal.2d 602, 610, 39 Cal.Rptr. 721, 394 P.2d 561;  Curcio v. Svanevik (1984) 155 Cal.App.3d 955, 963, 202 Cal.Rptr. 499.)

Finally, appellant complains that the trial court erred in denying its motion for new trial because it possessed newly discovered evidence.  (§ 657, subd. (4).)  Such a motion “is a matter which is committed to the sound discretion of the trial court.   All presumptions are in favor of the order made by the trial court, and a reviewing court will not interfere unless a clear abuse of discretion is shown.  [Citation.]”  (Cansdale v. Board of Administration (1976) 59 Cal.App.3d 656, 667, 130 Cal.Rptr. 880.)

 Pennwalt sought a new trial on the basis that one William Nance had corresponded with it after trial advising that plaintiff Terry Prevatt was working when he testified he could not, and was capable of performing duties to which he testified he could not.   Counter declarations raised serious questions concerning Mr. Nance's credibility and whether or not his evidence constituted impeachment.   At best, the evidence was seen as impeachment bearing solely on the question of damages.   Its value was particularly suspect since the plaintiff had conceded that he had suffered a subsequent job-related injury and had been working during the very period when the declarant (Nance) stated he was.   We are not persuaded that the trial court abused its discretion in concluding that the admission of this evidence would not have yielded a different result.

 We also have reservations concerning the foundational showing made by Pennwalt that the evidence was newly discovered.   None of the declarations attest to efforts made by Pennwalt to unearth such evidence.   Pennwalt merely declares that it did not know and could not have known of the existence of this individual.   We do not know why it did not know nor do we know anything about Pennwalt's efforts at discovery in this case, particularly with respect to Terry's damages.   In substance, there appears to have been no effort on Pennwalt's part to unearth such evidence.³²

DISPOSITION

The judgments are affirmed.   The cause of James Criswell is remanded to the trial court for a determination of good faith settlement in conformity with section 877.6.   Each party is to bear its own costs on appeal.

FOOTNOTES

FOOTNOTE.  

1.   In case B015912 Pennwalt sought a writ of mandate from this court directing the superior court to set aside its order sustaining demurrers to appellant's claim in case SM44343 by which it sought contribution from respondents Quintana and Baroid.   The petition was denied.   We take judicial notice that judgment was entered August 27, 1986.  (Evid.Code, § 452, subd. (d)(1).)

2.   All code references are to the Code of Civil Procedure unless otherwise indicated.The sliding scale recovery agreement is generically described as a “Mary Carter” agreement, based upon the case of Booth v. Mary Carter Paint Co. (Fla.App.1967) 202 So.2d 8.  (See City of Los Angeles v. Superior Court (1986) 176 Cal.App.3d 856, 864, fn. 3, 222 Cal.Rptr. 562.)Section 877.5 provides:“(a) Where an agreement or covenant is made which provides for a sliding scale recovery agreement between one or more, but not all, alleged defendant tortfeasors and the plaintiff or plaintiffs:“(1) The parties entering into any such agreement or covenant shall promptly inform the court in which the action is pending of the existence of the agreement or covenant and its terms and provisions;  and“(2) If the action is tried before a jury, and a defendant party to the agreement is a witness, the court shall, upon motion of a party, disclose to the jury the existence and content of the agreement or covenant, unless the court finds that such disclosure will create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.“The jury disclosure herein required shall be no more than necessary to be sure that the jury understands (1) the essential nature of the agreement, but not including the amount paid, or any contingency, and (2) the possibility that the agreement may bias the testimony of the alleged tortfeasor or tortfeasors who entered into the agreement.“(b) As used in this section a ‘sliding scale recovery agreement’ means an agreement or covenant between a plaintiff or plaintiffs and one or more, but not all, alleged tortfeasor defendants, where the agreement limits the liability of the agreeing tortfeasor defendants to an amount which is dependent upon the amount of recovery which the plaintiff is able to recover from the nonagreeing defendant or defendants. This includes, but is not limited to, agreements within the scope of Section 877, and agreements in the form of a loan from the agreeing tortfeasor defendant to the plaintiff or plaintiffs which is repayable in whole or in part from the recovery against the nonagreeing tortfeasor defendant.”

3.   Section 877.6, as it existed at the time of the agreements herein, provided:  “(a) Any party to an action wherein it is alleged that two or more parties are joint tortfeasors shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors, upon giving notice thereof in the manner provided in Sections 1010 and 1011 at least 20 days before the hearing.   Upon a showing of good cause, the court may shorten the time for giving the required notice to permit the determination of the issue to be made before the commencement of the trial of the action, or before the verdict or judgment if settlement is made after the trial has commenced.  [¶] (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response thereto, or the court may, in its discretion, receive other evidence at the hearing.  [¶] (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor from any further claims against the settling tortfeasor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. [¶] (d) The party asserting the lack of good faith shall have the burden of proof on that issue. [¶] ․  [¶] The running of any period of time after which an action would be subject to dismissal pursuant to section 583 shall be tolled during the period of review of a determination pursuant to this subdivision.”

4.   Section 877 provides, “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 more of a number of tortfeasors claimed to be liable for the same tort—[¶] (a) It shall not discharge any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater;  and [¶] (b) It shall discharge the tortfeasor to whom it is given from all liability for any contribution to any other tortfeasors.”  (We note that the limiting language of subparagraph (b) addressed to contribution has been applied with equal force to the concept of partial equitable indemnity.  (American Motorcycle Assn. v. Superior Court (1978) 20 Cal.3d 578, 604, 146 Cal.Rptr. 182, 578 P.2d 899.))

5.   Kenai was immune from civil lawsuit by virtue of Labor Code sections 3600 and 3601.  (See Wright v. FMC Corp. (1978) 81 Cal.App.3d 777, 779, 146 Cal.Rptr. 740.)

6.   The scope and extent of the injuries is not in dispute except for the injuries to Terry Prevatt. His injuries are relevant only to the extent that appellant sought a new trial on the basis that a new witness had come forward to testify that, as to plaintiff Terry Prevatt only, his injuries were not as severe as he had testified.  (See discussion, infra, p. 504.)

7.   The minutes of February 3 indicate that the motion of Baroid was granted only.   The transcript, however, shows that the motions of both Baroid and Quintana were granted.

8.   The minutes of March 19 are a mystery, and we lack the Rosetta stone of a transcript to decipher them.   First, they tell us that there was a good faith settlement but fail to state which of the remaining plaintiffs had settled.   This is especially confusing since, second, the transcript and minutes show the settlement was achieved on March 20 (see p. 500, infra ).   Third, the minutes show that as a result of whatever settlement was achieved, Pennwalt's cross-complaint was dismissed.   Pennwalt had no cross-complaint.

9.   In reaching its verdicts, the jury apportioned fault as follows:  (1) to plaintiffs—5 percent, (2) Pennwalt—10 percent, (3) plaintiffs' employer— 70 percent, and (4) other unspecified others—15 percent.   The net recovery included a reduction for workers' compensation benefits received by each plaintiff.  (Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641.)

10.   In the instant case, the jury determined that plaintiffs' employer was 70 percent responsible for plaintiffs' injuries.   The money paid by the employer, however, accounted for but 14.7 percent of Terry's damages, 12.2 percent of Stephen's and 16.2 percent of James Criswell's.

11.   Labor Code sections 3600 and 3601.  (See Benjamin v. Ricks (1976) 63 Cal.App.3d 593, 596, 132 Cal.Rptr. 758.)

12.   Throughout this opinion the sliding scale recovery agreement has been referred to as “an agreement” and is only now referred to as a settlement.   Irrespective of how characterized, the rules applicable to settlements and sliding scale agreements appear to us to be the same.  (See Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d at p. 1189, 227 Cal.Rptr. 424.)

13.   City of Los Angeles v. Superior Court, supra, 176 Cal.App.3d 856, 222 Cal.Rptr. 562;  Riverside Steel Construction Co. v. William H. Simpson Construction Co., supra, 190 Cal.App.3d 1175, 227 Cal.Rptr. 424;  Abbott Ford, Inc. v. Superior Court, supra, 190 Cal.App.3d 1286, 228 Cal.Rptr. 250.

14.   We also adopt Justice Klein's analysis of the due process issue set out in City of Los Angeles v. Superior Court, supra, 176 Cal.App.3d at pp. 864–867, 222 Cal.Rptr. 562.

15.   No such provision occurs in the agreements at issue in the instant matter.

16.   The motions had orally been noticed on January 27, 1984.

17.   Under the facts of this case, this phrase really meant Pennwalt.

18.   A net verdict was defined as the sum realized after deducting for any workers' compensation lien and for a reduction attributable to plaintiff's comparative negligence.

19.   Under such a scenario, the “apportionment” amongst the various “tortfeasors” would be:  Quintana 43 percent, Pennwalt 28.5 percent and Baroid 28.5 percent.

20.   In argument on February 3, Pennwalt conceded the invalidity of this objection.   The settlement had in fact been achieved with the parties' consent on February 1 though the attorneys had tentatively agreed to it on January 23.   Immediately upon the settlement being agreed to, plaintiff's counsel personally advised counsel for Pennwalt of its terms.   The actual contract was produced at the February 3 hearing.   We feel two days certainly falls well within section 877.5's requirement that the parties promptly inform the court.

21.   Apparently not yet consummated, the precise terms of the settlement had yet to be agreed upon.   In his declaration, counsel for Quintana states, inter alia, “I believe the remaining terms of this settlement will be agreed to as of the date and time of the hearing on the motion․”

22.   Pennwalt:  “And we were justifiably relying, until today, since today is the trial date, on their experts to come and testify.”   All other parties were ready and, at that stage, even if a settlement had been effected, all defendants still were in the action since Criswell had yet to settle.

23.   These proceedings were not reported.

24.   While not a part of this record, we note its presence in writ No. B015912 and take judicial notice of it.

25.   The requirement that the nonsettling tortfeasor bear the burden of proof has now been recognized by statute:  section 877.6.

26.   “There is a tide in the affairs of men, which, taken at the flood, leads on to fortune;  omitted, all the voyage of their life is bound in shallows and in miseries.”  (Shakespeare, Julius Ceasar, act IV, scene III.)

27.   The minutes read, “[c]ounsel for James Criswell placed the settlement with Quintana and NL Industries on the record.   Pursuant to the settlement, Quintana has settled with Mr. Criswell for $75,000 and NL Industries for $50,000.   Also, pursuant to agreement, the plaintiff cannot settle with Pennwalt for less than $35,000.”

28.   Of which there was no record.  (See fn. 23, supra.)

29.   The trial judge instructed the jury in the language of BAJI No. 2.60:  “In this action, the plaintiff has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:  [¶] 1. That defendant manufactured and sold the bag of caustic soda involved in the accident;  [¶] 2. That the defect in the design of the bag of caustic soda existed when the product left the defendant's possession;  [¶] 3. That the design of the product was a legal cause of plaintiffs' injuries;  [¶] 4. That the product was used in a manner reasonably foreseeable by the defendant;  [¶] 5. The nature and extent of plaintiffs' injuries, if any.  [¶] The defendant has the burden of establishing by a preponderance of the evidence all of the facts necessary to prove the following issues:  [¶] 1. The benefits of the design of the product as a whole outweigh the risk of danger inherent in its design;  [¶] 2. The comparative fault of each plaintiff, if any;  [¶] 3. That the comparative fault of each plaintiff, if any, was a legal cause of the accident;  [¶] 4. The comparative fault of others involved in the accident;  [¶] 5. Whether the comparative fault of others involved in the accident was a legal cause of plaintiffs' injuries․”

30.   Although the instruction as given generally conformed to BAJI No. 9.00.5 as it existed at the time of the trial, the use note to the seventh edition deletes references to the presence of the defect insofar as plaintiff's burden of proof is concerned.   We join with the BAJI committee in believing this to be the better practice.

31.   For example, during opening statement, counsel stated:  “Imagine having sulfuric acid on a third of your body.”   During closing argument, respondent's counsel stated:  “How would you like to look like this?   I don't want to go too far into this;  but how would you like to have people look at you like you are a freak?   How would you like to have people look at you when you are covered with black skin and blood?   Would you like to have people look at you like ‘I just want to get away’?”

32.   There is no appeal from an order denying a motion for new trial.  (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 156, 338 P.2d 907.)   However, where, as here, the appeal is from the judgment, the appellant (typically the losing party) may raise the issue.   The objective of the rule is to avoid delays incident to the prosecution of two separate appeals in a single action insofar as proceedings for new trial are concerned and to provide that such proceedings should be reviewable upon the appeal taken from the judgment.  (9 Witkin, Cal. Procedure (3d ed. 1985) Appeal, § 92, p. 113;  Hamasaki v. Flotho (1952) 39 Cal.2d 602, 608, 248 P.2d 910.)

PERREN*, Associate Justice. FN* Assigned by the Chairperson of the Judicial Council.

STONE, P.J., and GILBERT, J., concur.