California Court of Appeals, First District, Third Division
Mateo County Superior Court No. JCCP4648 Hon. Steven Dylina
Counsel: Hagens, Berman, Sobol & Shapiro, Steven Berman,
Kevin Green, for Derivative Plaintiff.
Luzaich, de Ghetaldi, Nastari & Riddle, Dario de
Ghetaldi, for Derivative Plaintiff.
Cotchett, Pitre & McCarthy, Frank Pitre and Mark
Molumphy, for Derivative Plaintiff.
& Watkins, Robert Perrin, for Defendants.
appeal arises from the settlement of several shareholder
derivative lawsuits filed against the management of Pacific
Gas & Electric Corporation and Pacific Gas and Electric
Company (collectively referred to as “PG&E”)
regarding the 2010 pipeline explosion in San Bruno. The
lawsuits were consolidated as part of the PG&E San Bruno
Fire Derivative Cases and resolved by a settlement agreement
that provided for settling plaintiffs' counsel to be paid
in the aggregate $25 million in attorney fees and $500, 000
notice of appeal filed on August 30, 2017, settling plaintiff
Gary Sender (Sender) seeks to challenge the court's
allocation determination embodied in three orders issued on
April 17, 21, and 24, 2017. The appeal is opposed by
respondents Hind Bou-Salman (Bou-Salman) and Louis Marini
(Marini), two other settling plaintiffs, who seek dismissal
of the appeal on various grounds. We dismiss the appeal as
the operative settlement agreement unequivocally deems the
trial court's allocation determination to be final and
not subject to appellate review.
forth only those facts necessary to give context to our
the 2010 San Bruno pipeline explosion, area residents filed
numerous lawsuits seeking to recover damages for personal
injuries and property damage. The residents' lawsuits
were coordinated as JCCP No. 4648 and assigned to a trial
court for all purposes. Subsequently, PG&E shareholders
Sender, Bou-Salman, and Marini (hereinafter also collectively
referred to as plaintiffs) filed derivative lawsuits against
the management of PG&E, which lawsuits were coordinated
with the residents' lawsuits as well as additional
shareholders' derivative lawsuits.
March 2017, plaintiffs, by named lead co-counsel Cotchett,
Pitre & McCarthy, LLP and Hagens Berman Sobol Shapiro
LLP,  filed a motion asking the trial court
for preliminary approval of a settlement agreement that
resolved their shareholder derivative lawsuits, as well as
certain additional shareholders' derivative lawsuits. The
stipulation of settlement included the following definitions:
‘Final' means the time when a judgment that has not
been reversed, vacated, or modified in any way is no longer
subject to appellate review, either because of disposition on
appeal and conclusion of the appellate process (including
potential writ proceedings) or because of passage, without
action, of time for seeking appellate or writ review. More
specifically, it is that situation when (1) either no appeal
or petition for review by writ has been filed and the time
has passed for any notice of appeal or writ petition to be
timely filed from the Judgment; or (2) if an appeal has been
filed, the court of appeal has either affirmed the Judgment
or dismissed that appeal and the time for any reconsideration
or further appellate review has passed; or (3) a higher court
has granted further appellate review and that court has
either affirmed the underlying Judgment or affirmed the court
of appeal's decision affirming the Judgment or dismissing
the appeal or writ proceeding, and the time for any
reconsideration or further appellate review has passed.
‘Plaintiffs in the Additional Derivative Cases'
means PG&E Corporation shareholders Andrew Bushkin, Iron
Workers Mid-South Pension Fund, and Bruce Tellardin.
‘Related Persons' means... attorneys...
‘Releasing Persons' means... the Settling
Plaintiffs... and each and all of their Related Persons.
‘Settling Parties' means, collectively, each of the
Settling Plaintiffs (on behalf of themselves and derivatively
on behalf of PG&E), the SLC, PG&E, and the Settling
‘Settling Plaintiffs' means, collectively, Hind
Bou-Salman, Gary Sender... Louis Marini.
‘Settling Plaintiffs' Counsel' means: (i)
Cotchett, Pitre & McCarthy, LLP; and (ii) Hagens Berman
Sobol Shapiro LLP.”
settlement agreement's substantive paragraphs provided,
in pertinent part:
Settlement Amount. In consideration of the
Settlement, and subject to the terms and conditions of this
Stipulation, the Settling Defendants shall cause to be paid
by their insurance carriers ninety million dollars ($90, 000,
000.00) in unrestricted funds (the ‘Settlement
Amount') to PG&E.... Such payment shall be due
regardless of the existence of any appeals or objections to
any aspect of the Settlement, including without limitation
any appeals or objections to the Settlement itself, the
Court's approval of any Fee and Expense Award or the