Judge: Anne Hwang, Case: 21STCV47355, Date: 2024-04-29 Tentative Ruling

Case Number: 21STCV47355    Hearing Date: April 29, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

BACKGROUND

This case arises from an alleged slip and fall accident that occurred on property owned by Camden Harbor View Apartments and Camden Property Trust. Plaintiff Harriet Roxanne Banks (“Plaintiff”) alleges that on January 4, 2020, she slipped on liquid negligently placed by J & J Waste Inc. Plaintiff alleges the Camden defendants “retained, instructed, or allowed J & J Waste Inc.” to place the liquid on the premises. (First Amend. Complaint, 4.)

On January 25, 2024, Camden Development, Inc.’s (“Camden”) filed an application (“Application”) for determination of good faith of a settlement with Plaintiff. It does not appear a hearing date was reserved for the Application.

On February 23, 2024, Defendant/Cross-Defendant J & J Waste Control Inc. (“J&J”) filed the instant motion to contest Camden’s Application for determination of good faith settlement. Camden opposes and J&J replies.

LEGAL STANDARD

Under section 877.6 of the Code of Civil Procedure, “[a] determination by the court that [a] 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.” (Code Civ. Proc. § 877.6 (c).) Any party to an action may move for an order determining whether a settlement between the plaintiff and one or more alleged tortfeasors or co-obligors was made in good faith. (Code Civ. Proc., § 877.6, subd. (a)(1).) “The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., § 877.6, subd. (d).)

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination: 

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party. 

(192 Cal.App.3d 1251, 1260-1261 [citation omitted].) 

Section 877.6 requires “that the courts review [settlement] agreements made under its aegis to insure that the settlements appropriately balance the . . . statute’s dual objectives” (i.e., providing an “equitable sharing of costs among the parties at fault” and encouraging parties to resolve their disputes by way of settlement.) (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 494 (hereafter, Tech-Bilt).) In Tech-Bilt, the court set forth the factors to consider when determining whether a settlement is made in good faith. The Tech-Bilt factors are: (1) a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants. (Tech-Bilt, supra, 38 Cal.3d at p. 498-501.) Not every factor will apply in every case. (Dole Food Co., Inc. v. Sup.Ct. (Shell Oil Co.) (2015) 242 Cal.4th 894, 909.)

“ ‘A determination as to the good faith of a settlement, within the meaning of section 877.6, necessarily requires the trial court to examine and weigh a number of relevant factors, [fn. omitted] one of the most important of which is the settling party's proportionate liability.’ [citation.] If ‘there is no substantial evidence to support a critical assumption as to the nature and extent of a settling defendant's liability, then a determination of good faith based upon such assumption is an abuse of discretion.’” (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1350.)

“All affidavits relied upon as probative must state evidentiary facts; they must show facts and circumstances from which the ultimate fact sought to be proved may be deduced by the court. [citation.] Affidavits or declarations setting forth only conclusions, opinions or ultimate facts are to be held insufficient; even an expert's opinion cannot rise to the dignity of substantial evidence if it is unsubstantiated by facts. [citation.]” (Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834.)

“The party asserting the lack of good faith . . . [is] permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to [the above] factors as to be inconsistent with the equitable objectives of [Section 877.6]. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500.)

PRELIMINARY MATTER

In opposition, Camden asserts that this motion is untimely. Under section 877.6,

“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 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 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 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 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 service, the court may approve the settlement.”

(Code Civ. Proc. § 877.6(a)(2).)

Here, the Application was served by certified mail, return receipt requested on January 25, 2024. Therefore, the deadline to bring a motion to contest the settlement was 25 days after the mailing: February 19, 2024. J&J filed this motion on February 23, 2024. Therefore, it was untimely. However, since Camden does not point to authority that this deadline is jurisdictional, the Court declines to deny the motion on procedural grounds.

DISCUSSION

Camden has entered into a settlement with Plaintiff for $80,000. J&J argues that Plaintiff will likely seek $1,000,000 in damages at trial.

Plaintiff has estimated her past medical expenses at $73,834.55 and future medical expenses at $162,900. (Stepanyan Decl. ¶ 3, Exh. B.) She also seeks recovery of lost income totaling $337,000. Her earning capacity claim is expected to be $147,000. In November 2005, J&J was retained by Progressive Amenities, Inc. (“Progressive”) to provide janitorial services for plans selected by Progressive. Camden later retained Progressive in December 2019 to provide vendors for various services on its premises. (Motion, 4–5.)

J&J argues that Camden would be found equally liable for Plaintiff’s injuries since it had a non-delegable duty to keep the premises safe. (Motion, 7.) J&J cites the general rules regarding a landowner’s duty, including a duty to keep the premises in a reasonably safe condition. However, a property owner is not the insurer of the safety of its guests.¿(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)  The owner must have actual or constructive knowledge of the dangerous condition.¿ (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1139-40.)  Whether a defendant had constructive notice of the condition that created the risk of harm depends on whether, under all the circumstances, the condition was of such a nature and existed long enough that defendant had sufficient time to discover it and, using reasonable care: (1) repair the condition; or (2) protect against harm from the condition; or adequately warn of the condition.  A defendant must make reasonable inspections of the property to discover unsafe conditions.  If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that the owner using reasonable care would have discovered it.  (CACI No. 1011.)  It is generally a question of fact for the jury as to whether, under all the circumstances, a defective condition existed long enough such that a reasonable person, exercising reasonable care, would have discovered it.  (Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124, 128-129 (Hale).)  

 Here, J&J does not provide facts of the subject incident that show that Camden’s notice of the condition would be a genuine issue at trial. Therefore, without providing facts to analyze Camden’s liability, it fails to show the settlement amount is disproportional.

J&J appears to also argue that the Application does now show Camden’s financial condition since it does not compare Camden’s policy limit to the settlement. It also contends that collusion is implied given that the settlement is lower than the $333,333.33 for which Camden would be liable. However, without the facts to analyze Camden’s potential liability, the Court cannot determine whether the $333,333.33 amount is proper, and J&J does not set forth facts to establish collusion.

In opposition, Camden argues the settlement complies with the Tech-Bilt factors. Regarding potential liability, Camden contends that the vendor agreement with Progressive stated that Progressive agreed to indemnify, defend, and hold harmless Camden against the negligence of its vendors. Plaintiff’s allegations rely on a janitor who was cleaning the subject location at the time. Additionally, Camden contends no discovery has been presented that shows Camden had notice of the dangerous condition. (Opp., 6.)

In light of the above, the Court finds that the declaration in support of this motion does not contain enough facts of Camden’s proportional liability or the pertinent facts of this case. Because Camden’s Application is being contested, J&J’s declaration in support must provide facts supporting the Tech-Bilt factors. J&J may not rely on conclusory statements or assertions only in the application. For example, the Declaration of Matthew S. Jones does not contain facts addressing all the Tech-Bilt factors either within the Application or in the opposition to this motion.

CONCLUSION AND ORDER

Therefore, the motion Contest Application for Determination of Good Faith Settlement is DENIED.

Moving party shall give notice of the Court’s order and file a proof of service of such.