Judge: Anne Hwang, Case: 22STCV29564, Date: 2024-10-29 Tentative Ruling

Case Number: 22STCV29564    Hearing Date: October 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

On September 9, 2022, Plaintiff Jennifer Louise Forss (“Plaintiff”) filed a complaint based on two separate incidents: (1) a dog attack and (2) a slip and fall, against Defendants Olga Genikov, California Condominium Cooperative Apartment Safety Association, The Grand Homeowners Association, and Does 51 to 100. As a result, Plaintiff asserts negligence, strict liability, and gross negligence and/or recklessness causes of action against Olga Genikov only based on the dog attack, and strict liability, negligence, breach of warranties, and premises liability causes of action against the remaining defendants.

On April 24, 2023, The Grand Homeowners Association (“The Grand HOA”) filed a cross-complaint against Roes 1 to 20 for indemnification, apportionment of fault, and declaratory relief.

On May 5, 2023, Plaintiff dismissed Defendant California Condominium Cooperative Apartment Safety Association.

Defendant Olga Genikov (“Genikov”) now moves for a determination that a settlement has been entered in good faith with Plaintiff. The Grand HOA opposes and Genikov 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).)

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.)

DISCUSSION

In this case, Plaintiff alleges she was bitten by a dog owned by Genikov. Genikov has settled with Plaintiff for $10,001.00.

Plaintiff alleges that the dog attack occurred first, on September 27, 2020. Plaintiff testified that she associates the following injuries with that incident: a headache on the day of the incident, bruising and puncture wounds on her left arm and right leg (which Genikov disputes), and temporary soreness in her lower back. (McKennon Decl. ¶ 5, Exh. B.) Plaintiff claims a total of $9,880 in medical expenses based on the dog attack. (Id., Exh. E.)

The soreness in Plaintiff’s back disappeared before the second incident. When asked if her side and back pain resolved prior to the second incident, Plaintiff testified: “Yes, my back did. My back was more of like an uncomfortableness. But my -- everything was completely fine.” (McKennon Decl., Exh. B, Pl. Depo. 98:24-99:6.) Plaintiff could not estimate how long prior to the second incident that everything was fine. (Id., 99:7-21.) However, she testified that “the soreness on my body dissipated right away, but it was more of the arm that was an issue of pain longer than, you know -- longer probably because of my disorder.” (Id., 99:16-19.)

The second incident occurred on November 20, 2020 at an apartment complex operated by The Grand HOA where Plaintiff slipped and fell on a mat in front of the main entrance. Genikov asserts that Plaintiff does not hold Genikov responsible for this second incident.

As a result, Genikov argues the settlement is appropriate since it compensates Plaintiff for her medical expenses. The Court recognizes this is less than what would be paid at trial. Additionally, Genikov asserts no allocation is necessary since the first incident is separate from the slip and fall, and that the settlement was reached without collusion or fraud. Additionally, based on Plaintiff’s deposition testimony, it appears her injuries had resolved prior to the second incident. Therefore, Genikov has shown that the settlement was made in good faith.

In opposition, The Grand HOA asserts that because the two incidents are alleged in one complaint, “Genikov has joint and several liability under Prop 51.” (Opp., 2.) Furthermore, The Grand HOA asserts that Plaintiff underwent a lower back surgery in November 2022 and “recently made a demand in excess of seven figures to The Grand HOA.” (Nachiappan Decl. ¶ 4-5.) The Grand HOA contends that Plaintiff also fell during the dog attack, and that Genikov failed to properly estimate her proportional liability. It also contends Genikov had a $500,000 insurance policy limit. (Id. ¶ 8.)

In reply, Genikov points out that The Grand HOA failed to show that the back fall in the first incident contributed to her injuries resulting from the second incident.

The Grand HOA fails to present evidence showing that the November 2022 back surgery was related to the dog attack, or that any additional medical expenses are associated with the attack. In light of the this, the fact Genikov may have had a $500,000 insurance policy does not automatically suggest the settlement should have been higher, since there are insufficient facts demonstrating that Genikov’s proportional liability was significantly larger. As a result, The Grand HOA fails to meet its burden to show that the settlement is so far “out of the ballpark” in relation to the Tech-Bilt factors.

CONCLUSION AND ORDER

Therefore, the motion for determination of good faith settlement is GRANTED.

Moving party shall give notice of the ruling and file a proof of service of such.