Case Number: 20STCV15860    Hearing Date: March 15, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

MOVING PARTY:              Defendants/Cross-Defendants/Cross-Complainants Saeed Farkondehpour, an individual (“Saeed”), Saeed Farkondehpour, Trustee of the 1993 Farkondehpour Family Trust (the “Farkondehpour Trust”) (collectively, “Farkondehpour Defendants”)

OPPOSITION:                      Defendant/Cross-Complainant/Cross-Defendant Morad Neman B. Neman, individually (“Morad Neman”) and as Trustee of the Neman Family Irrevocable Trust (the “Neman Trust”) (collectively, “Neman Defendants”).

REPLY:                                 Plaintiff/Cross-Defendant Bank of Hope; and Defendants/Cross-Defendants/Cross-Complainants Saeed Farkondehpour, an individual, Saeed Farkondehpour, Trustee of the 1993 Farkondehpour Family Trust.

Background

Bank of Hope brought this action pursuant to allegations that on March 28, 2013, a company owned by the Farkondehpour and Neman Defendants—Downtown Real Property Acquisitors, LLC (“DRPA”)—took out a $5 million loan from a predecessor-by-merger of Bank of Hope—Wilshire State Bank (“WSB”) and the “Loan” or “WSB Loan”—as secured by a Deed of Trust encumbering two pieces of real property—1001-1013 Crocker Street and 750 East 10th Street, Los Angeles, California 90021 (“Real Property)—and with the collective Defendants each executing one of four promissory notes guaranteeing payment of the loan (together with the Loan Agreement, Note, Deed, and later Modifications in 2013, 2018, and 2019, the “Loan Documents”). The loan went into default in August 2019, leading to a foreclosure sale on the Real Property in August 15, 2019. At the foreclosure sale, Bank of Hope credit bid the sum of $4,377,986.60 and acquired the Real Property. At the time of the foreclosure sale, there was, in accordance with the terms of the Loan Documents, due, owing, and payable to Bank of Hope from DRPA the sum of $4,825,180.44, leaving a deficiency of $447,193.84 together with unpaid interest at the Note rate, as modified, and other fees pursuant to the Loan Documents.

On April 27, 2020, Bank of Hope filed its Complaint, suing the Farkondehpour Defendants and Neman Defendants, as well as Does 1 through 40, pursuant to four claims of Breach of Contract (Commercial Guaranty) and four corresponding claims of Money Due, with each pair of breach of contract and money due claims directed at one of the four Defendants based on their personal March 28, 2013 guarantees of the Loan.

On October 13, 2020, the Neman Defendants sued Bank of Hope and the Farkondehpour Defendants pursuant to claims (1) Fraud, (2) Negligent Misrepresentation, (3) Breach of Oral Contract, (4) Breach of Implied Covenant of Good Faith and Fair Dealing, (5) Promissory Estoppel, and (6) Unfair Business Practices against Bank of Hope and (7) Indemnity against Saeed.

The Neman Defendants’ Cross-Complaint grounds its claims against Saeed on the grounds that after the Loan Documents were executed, Morad Neman and Saeed agreed, as between and among each other, to divide multiple properties they held in joint or co-ownership, with the Real Property at issue allocated to Saeed and Saeed and Neman agreeing that Saeed would be responsible for servicing the Loan Documents after that agreement, and for indemnifying Neman against any claims arising out of the Loan Documents or the Real Property itself. (The Court notes that the Morad Neman Declaration attached to the opposition indicates that this separation in business dealings took place in 2005, not in or after 2013, when the Neman Defendants and Farkondehpour Defendants signed guarantees on the WSB Loan.)

The Neman Defendants’ Cross-Complaint grounds its claims against Bank of Hope on the allegations that: after Neman learned of the default and Bank of Hope’s notice of default and, later, a notice of sale, Morad Neman—through his counsel—became involved in direct discussions with Bank of Hope in or about July and August of 2019, regarding an agreement to avoid the foreclosure sale and to instead have Morad Neman pay off Bank of Hope’s debt and pursue whatever rights he had against Saeed under their agreement; Morad Neman made clear to the Bank of Hope’s counsel that he would pay off the Loan in full, purely to avoid a foreclosure and any negative credit ramifications associated with that foreclosure, through which Morad Neman and Bank of Hope began negotiating the terms of that agreement, which both parties allegedly understood would need to include a continuance of the noticed sale in order for Neman to raise the funds necessary to pay off the Loan; the phone number for the trustee on the  foreclosure sale on the notice of sale was incorrectly listed, hampering Morad Neman’s ability to stave off the sale; on August 15, 2019, after several emails were exchanged that day, Bank of Hope’s counsel emailed Morad Neman’s counsel at 9:24 a.m. to inform him or her that Bank of Hope would be willing to postpone the foreclosure sale from August 15th to August 20, 2019 provided Morad Neman remitted $200,000 by 9:45 a.m. that same day; Morad Neman was unable to provide the wire transfer within the prescribed time; at 9:54 a.m., Bank of Hope emailed Morad Neman the location of the sale, to take place that same day at 10:00 a.m.; and the foreclosure sale proceeded at 10:00 a.m., with Bank of Hope acquiring the Real Property through a credit bid, thereby depriving Morad Neman of the benefits of Morad Neman and Bank of Hope’s oral agreement to delay the sale as to permit Morad Neman to pay the balance on the Loan.

On December 2, 2021, the Farkondehpour Defendants filed their own Cross-Complaint, alleging a single cause of action for Contribution against Morad Neman, the Neman Trust, and Roes 100-150.

Per the instant motion and a March 1, 2023 filing by Bank of Hope, on October 19, 2022, Bank of Hope and the Farkondehpour Defendants entered into a written settlement and release agreement (the “Farkondehpour-Bank of Hope settlement”).

On December 16, 2022, the Saeed Defendants brought the instant Motion for Determination of Good Faith Settlement between themselves and Bank of Hope in the amount of $225,000.

The settlement agreement attached to the Farkondehpour Defendants’ motion clarified that, “[a]s of October 12, 2022, the amount due to Bank of Hope from Farkhondehpour Parties and Neman Parties, as Guarantors, jointly and severally, was $447,193.84, plus accrued and unpaid interest of $156,968.76 (from August 15, 2019 through October 12, 2022), and attorneys’ fees and costs of $292,838.67 (from August 17, 2019 through September 30, 2022), for a total amount due of $897,001.27, with attorneys’ fees and costs continuing to accrue until Bank of Hope is paid in full (the ‘Claim Amount’).”

On January 4, 2023, the Neman Defendants filed an opposition to the Farkondehpour Defendants’ motion on the grounds that Saeed was liable for the full deficiency debt on the foreclosure sale and that the settlement does not satisfy the Tech-Bilt factors for a fair settlement.

On January 10, 2023, Bank of Hope filed a Statement of Position regarding the Farkondehpour Defendants’ motion, highlighting statements contained in the Neman Defendants’ opposition against which Bank of Hope objected.

Also on January 10, 2023, the Farkondehpour Defendants filed an reply to the Neman Defendants’ opposition, arguing that (1) the Neman Defendants, as the parties with the burden to show the Farkondehpour-Bank of Hope settlement is not in good faith, have failed to establish the Tech-Bilt factors disfavor the settlement and (2) the Neman Defendants’ indemnity claim against Farkondehpour should be dismissed pursuant to Code of Civil Procedure section 877.6, subdivision (c).

Per a March 1, 2023 filing by Bank of Hope, on February 1, 2023, Bank of Hope and the Neman Defendants entered into a written settlement and release agreement. (The terms of this settlement remain undisclosed to the Court.)

On February 8, 2023, Bank of Hope filed a Judicial Council form CIV-110, Request for Dismissal, dismissing from its Complaint, with prejudice, the Farkondehpour Defendants.

On February 10, 2023, Bank of Hope filed a Notice of Partial Conditional Settlement of Action, indicating that (1) Bank of Hope had separately and conditionally settled its claims against the Farkondehpour Defendants and the Neman Defendants, (2) the Farkondehpour settlement had been paid in full with payment due in the Neman Defendants’ settlement for a future date, and (3) in light of its settlements, Bank of Hope requested a vacatur or continuance of all dates and deadlines related to Bank of Hope.

On March 1, 2023, Bank of Hope filed a joint stipulation by Bank of Hope, the Farkondehpour Defendants, and the Neman Defendants to vacate or continue the trial date and related dates in this action on the grounds that (1) Bank of Hope had settled its claims against all the Defendants and the cross-claims against Bank of Hope had in turn been settled as well, (2) Bank of Hope has been paid in full in accordance with both of its settlements, (3) a request for dismissal will be made in favor of the Neman Defendants no later than May 15, 2023, (4) the Farkondehpour Defendants’ and Neman Defendants’ cross-claims against one another have not been settled, and (5) all the parties requested vacatur of or a 90-day continuance on the trial date and related dates.

Motion for Determination of Good Faith Settlement

Legal Standard

Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt is 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 or co-obligors. (Code Civ. Proc., § 877.6, subd. (a)(1).)

In the alternative, 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. (Code Civ. Proc., § 877.6, subd. (a)(2).) The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. (Code Civ. Proc., § 877.6, subd. (a)(2).) The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service, with proof of service to be filed with the court. (Code Civ. Proc., § 877.6, subd. (a)(2).) 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. (Code Civ. Proc., § 877.6, subd. (a)(2).) 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, subd. (a)(2).) However, this subsection does not apply to settlements in which a confidentiality agreement has been entered into regarding the case or the terms of the settlement. (Code Civ. Proc., § 877.6, subd. (a)(2).)

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 counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. (Code Civ. Proc., § 877.6, subd. (b).)

A party asserting lack of good faith in settlement has the burden of proving lack of good faith. (Code Civ. Proc., § 877.6, subd. (d).) The objecting party may carry its burden by demonstrating that the settlement is so far “out of the ballpark” in relation to various factors, including:

(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 it would if it 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, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499-500.)

A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Code Civ. Proc., § 877.6, subd. (c).)

Analysis

The Court first determines that the Farkondehpour Defendants and Bank of Hope’s settlement is procedurally sufficient, insofar as:

The settlement indicates the settling parties—the Farkondehpour Defendants and Bank of Hope—and the basis, terms, and amount of the settlement—$225,000 in cash, to be paid to Bank of Hope, on or before October 28, 2022, with dismissal of Bank of Hope’s claims against the Farkondehpour Defendants 91 days after receipt of the settlement amount. (Mot., Farkondehpour Decl., Ex. A, pp. 2-3, Settlement Terms, §§ 1-2.)

The motion provides proof of service in conformity with Code of Civil Procedure section 877.6, subdivision (a)(2). (Mot., Proof of Service [showing service to counsel for Bank of Hope and Neman Defendants by certified mail with return receipt requested].)

However, because the Neman Defendants opposed this settlement within 25 days of mailed proof of service for this motion—service on December 16, 2022 (see Mot., Proof of Service), with 25 days later landing on January 10, 2023 and the opposition filed by the Neman Defendants on January 4, 2023 (Opp’n, Proof of Service)—the Court must determine whether the Farkondehpour-Bank of Hope settlement conforms with the Tech-Bilt factors, with the Neman Defendants having the burden of proof. (Code Civ. Proc., § 877.6, subd. (a)(2).)

I.                    Tech-Bilt Factors

A. Approximation of Bank of Hope’s Recovery to Farkondehpour Defendants’ Liability

In their opposition, the Neman Defendants argue that “Farkondehpour’s proposed settlement does not nearly reflect Farkondehpour’s proportionate liability to the Bank since Farkondehpour was admittedly responsible for managing the Crocker Property and for servicing its debts using the revenues from the property given the property was allocated to him” and that “by virtue of his guaranty, Farkondehpour is undeniably liable to the Bank for all of its claimed damages, including attorney fees and anything else the Bank’s counsel seeks to tack on in this case.” (Opp’n, 9:3-8.)

In their motion, the Farkondehpour Defendants argue “both the Farkondehpour Defendants and the Neman Defendants issued guarantees of the loan made by Plaintiff to DRPA, the Defendants’ joint venture” such that “the settlement between Plaintiff and the Farkondehpour Defendants for fifty percent (50%) of the total amount claimed is equivalent to their proportionate share of the damages and thereby clearly within ‘the ballpark’ of the apportioned share of liability.” (Mot., 9:9-15.)

In reply, the Farkondehpour Defendants argue that the “Neman Defendants … fail to establish that the settlement is ‘grossly disproportionate’ in light of the undisputed facts” because it is undisputed that “the Neman Defendants and the Farkondehpour Defendants each owned fifty percent of DRPA,” Morad Neman “admits that both he and Saeed Farkondehpour ‘signed personal guarantees on the Bank’s loan’” in the Morad Neman Declaration, and “these parties were to be jointly and severally liable on the loan.” (Reply, 5:20-25.)

The Court finds that this factor favors the Farkondehpour-Bank of Hope settlement. While the Neman Defendants argue that their oral agreement with the Farkondehpour Defendants assigned 100% liability over the Real Property and thus, liability over the $447,193.84 deficiency in the foreclosure sale for the Real Property (Opp’n, Morad Neman Decl., ¶ 3), the Court finds that Morad Neman’s own declaration undercuts this argument. If the Neman and Farkondehpour Defendants separated their business agreements in 2005 (Opp’n, Morad Neman Decl., ¶ 3), it is unclear why the Neman Defendants would sign as guarantors to the WSB Loan in 2013 (Complaint, ¶¶ 38, 48, Exs. 8-9), aside from the alleged oral promises from Saeed to “indemnify [Morad Neman] against any liability for [WSB] Bank’s [L]oan” (Opp’n, Morad Neman Decl., ¶ 3). Simply, there is no substantial evidence before the Court to determine that such an indemnity agreement was ever effected between the Farkondehpour and Neman Defendants. Thus, given that all four Defendants guaranteed the WSB Loan, it is fair to find that nearly 50% of the liability on the deficiency of $447,193.84—not the total Claim Amount of $897,001.27 (Mot., Farkondehpour Decl., Ex. A, p. 2, Recitals, ¶ D)—is assigned to the Farkondehpour Defendants (Complaint, ¶¶ 19, 28, Exs. 6-7).

B. Amount of Settlement

In opposition, the Neman Defendants argue that the settlement amount disfavors settlement between the Farkondehpour Defendants and Bank of Hope because “Farkondehpour is paying a mere fraction of the Bank’s claim, and nowhere near his actual liability to the Bank, particularly given his personal guarantee and sole involvement in (and responsibility for) servicing the Bank’s debt.” (Opp’n, 9:19-25.)

In their motion, the Farkondehpour Defendants argue “both the Farkondehpour Defendants and the Neman Defendants issued guarantees of the loan made by Plaintiff to DRPA, the Defendants’ joint venture” such that “the settlement between Plaintiff and the Farkondehpour Defendants for fifty percent (50%) of the total amount claimed is equivalent to their proportionate share of the damages and thereby clearly within ‘the ballpark’ of the apportioned share of liability.” (Mot., 9:9-15.)

In reply, the Farkondehpour Defendants fail to address this factor. (Reply, 4:3-6:25.)

The Court finds that this factor favors the Farkondehpour-Bank of Hope settlement for the same reasons explained in the discussion as to the first Tech-Bilt factor relating to the proper liability of each set of Defendants to Bank of Hope.

C. Allocation of Proceeds Amongst Plaintiffs

The Court finds that this factor neither favors nor disfavors the Farkondehpour-Bank of Hope settlement given that the only plaintiff at issue is Bank of Hope. (See Mot., 10:13-16 [making same argument]; see also Opp’n, Reply [factor not seemingly addressed].)

D. Payment Less than Trial Liability

In opposition, the Neman Defendants argue that “this factor does not support the [Neman Defendants’] requested finding” of no good faith in the Farkondepour-Bank of Hope settlement. (Opp’n, 9:26-10:3.)

The Court agrees and finds that this factor favors the Farkondehpour-Bank of Hope settlement. The Claim Amount due to Bank of Hope based on the deficiency at the foreclosure sale as of October 12, 2022 was $897,001.27. (Mot., Farkondehpour Decl., Ex. A, Recitals, ¶ C.) A settlement of $225,000 in favor of Bank of Hope against the Farkondehpour Defendants is significantly less than half of the Claim Amount of $897,001.27 if the Farkondehpour Defendants were found 50% liable to Bank of Hope at trial or than the full Claim Amount of $897,001.27 if the Farkondehpour Defendants were found 100% liable to Bank of Hope at trial.

E. Defendants’ Financial Condition and Insurance Limits

In opposition, the Neman Defendants argue that “Farkondehpour does not claim to lack the financial ability to pay the Bank’s claimed debt and, unlike Neman, Farkondehpour had access to the rents of the Crocker Property to satisfy its debts, including to the Bank” where “Neman, by contrast, lacked those revenues and, in support of his motion for a good faith determination, Farkondehpour actually claims that Neman’s worsening financial condition was part of why he could not secure a new loan to replace the Bank’s loan,” for which reason “this factor too weighs against Farkondehpour[‘s]” settlement with Bank of Hope. (Opp’n, 10:4-10.)

In their motion, the Farkondehpour Defendants argue that: “[t]his factor is generally only relevant in the case of a disproportionately low settlement with an insolvent defendant or a defendant with limited insurance”; “there is no insurance policy available which would provide coverage for this action”; “[t]he Farkondehpour Defendants’ financial condition only supports the good faith nature of the settlement”; “[t]he primary borrower, DRPA, is insolvent” and “has an obligation to defend and indemnify its former managing partner and clearly cannot do so”; “Mr. Farkondehpour has been engaged in costly and protracted litigation with codefendant Neman regarding other real estate ventures not at issue herein”; “Plaintiff’s settlement with and acceptance of an immediate cash payment from the Farkondehpour Defendants at this time recognizes the old adage that ‘a bird in the hand is worth two in the bush’”; and “[i]n light of the Farkondehpour Defendants’ dwindling resources caused by fighting the Neman Defendants on many fronts, it is clear that the settlement of this action with Plaintiff is made in good faith.” (Mot., 10:17-11:4.)

In reply, the Farkondehpour Defendants fail to address this factor. (Reply, 4:3-6:25.)

The Court finds that this factor neither favors nor disfavors the Farkondehpour-Bank of Hope settlement. Tech-Bilt referenced this factor in the context of a Nevada District Court case, wherein maximum contribution of policy limits connoted good faith. (Tech-Bilt, Inc. v. Woodward-Clyde & Assocs., supra, 38 Cal.3d at p. 499 [citing to In re MGM Grand Hotel Fire Litigation (1983) 570 F.Supp. 913, 927]; see also In re MGM Grand Hotel Fire Litigation, supra, at pp. 928-29 [discussing insurance policy limits within context of good faith settlement].) Here, the $225,000 settlement contemplates approximately half of the debt owed on the $447,193.84 deficiency resulting from the foreclosure sale of the Real Property. (Mot., Farkondehpour Decl., Ex. A, p. 2, Recitals, ¶ D [deficiency amount] & pp. 2-3, Settlement Terms, §§ 1-2 [settlement amount].) For this reason, Defendants’ financial condition and insurance limits is less relevant to the good faith determination here.

F. Existence of Collusion, Fraud, or Tortious Conduct Harming Neman Defendants

In opposition, the Neman Defendants argue that the Farkondehpour-Bank of Hope settlement shows collusion, fraud, or tortious conduct harming the Neman Defendants because: “Bank [of Hope] and Farkondehpour ‘settled’ only after Farkondehpour failed to meaningfully respond to the Bank’s discovery, and without the assistance of any mediator or other neutral who could claim responsibility for spurring a settlement between the two most culpable defendants in this action”; “the settlement seeks to leave Neman holding the bag for a liability that his former partner alone created, which the Bank only exacerbated through its conduct in baselessly refusing to cooperate with Neman’s good faith effort to cure his former partner’s default”; Farkondehpour’s own declaration makes clear his goal through this settlement is to spend pennies on the dollars of liability he created, so he can “focus resources on pursuing and resolving other matters with the Neman Defendants”; and “Farkondehpour apparently convinced … Bank [of Hope] … to take a disproportionately low settlement payment from him so that both parties can use their resulting resources against Neman,” which “is the very definition of collusion.” (Opp’n, 10:11-11:2.)

In their motion, the Farkondehpour Defendants argue: “[t]he settling parties engaged in good faith, arms-length negotiations extending over the course of weeks to resolve this matter”; “Farkondehpour raised defenses to the claims under the Guarantees and thereby disputed liability to Plaintiff on substantive grounds”; “[t]here is no collusion where a settling defendant has asserted good faith defenses to liability and seeks to avoid further litigation and exposure to increased litigation costs not of his own making and additional interest on the underlying debt”; and “[t]he settlement amount reached between Plaintiff and the Farkondehpour Defendants is exactly fifty percent of the claimed amount and is patently reasonable in light of the alleged joint and several liability of the defendants.” (Mot., 11:5-11, 11:19-25.)

In reply, the Farkondehpour Defendants argue that the Neman Defendants present “pure speculation” as to collusion. (Reply, 6:13-25.)

Bank of Hope also argues that “there was no collusion between Plaintiff and the Farkhondehpour Defendants” because “[f]or over a year, Plaintiff’s counsel made numerous attempts to discuss settlement with the Neman Defendants, and invited them to participate in mediation” and “[w]ith only five and a half months left before trial, the Farkhondehpour Defendants and Plaintiff agreed to settle the dispute between them through arm’s length negotiations” where “[t]here have never been any actions or efforts to exclude the Neman Defendants from settlement negotiations, or to collude with the Farkhondehpour Defendants, to settle at the Neman Defendants’ expense.” (1/10/23 Statement of Position, 2:10-18.)

The Court finds that this factor favors the Farkondehpour-Bank of Hope settlement. The Neman Defendants’ conclusory allegations regarding the business transactions between the Farkondehpour Defendants and Bank of Hope do not amount to evidence of collusion, fraud, or tortious conduct harming the Neman Defendants.

G. Tech-Bilt Factors Conclusion

With four of the six Tech-Bilt factors supporting good faith settlement and two neither supporting nor disfavoring good faith settlement, the Court GRANTS the Farkondehpour’s Motion for Determination of Good Faith Settlement.

Any other joint tortfeasor or co-obligor of the Farkondehpour Defendants is BARRED from any further claims against the Farkondehpour Defendants for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Code Civ. Proc., § 877.6, subd. (c).)

II. Dismissal of Neman Defendants’ Seventh Cause of Action

A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (Code Civ. Proc., § 877.6, subd. (c).)

The Farkondehpour Defendants’ motion requests dismissal of the Complaint’s first four causes of action and the seventh cause of action stated in the Neman Defendants’ Cross-Complaint for Indemnity. (Mot., 4:8-15.)

Dismissal of the first through fourth causes of action is MOOT in light of Bank of Hope’s February 8, 2023 dismissal of the Farkondehpour Defendants from its Complaint, with prejudice. (See 2/8/23 Form CIV-110, p. 3.)

In opposition to dismissal of its seventh cause of action for Indemnity against the Farkondehpour Defendants, the Neman Defendants argue that “a good faith finding has no impact on Neman’s cross-complaint for express indemnity” pursuant to “Cal-Jones Properties v. Evans Pac. Corp. (1989) 216 Cal.App.3d 324, 327-328 and Bay Develop., Ltd v. Superior Court (1990) 50 Cal.3d 1012, 1019” where the Neman Defendants’ “cross-complaint expressly pleads both equitable and express indemnity.” (Opp’n, 11:7-15.)

In reply, the Farkondehpour Defendants argue that the “Neman Defendants have not produced any document purporting to be a written agreement by Farkhondehpour to indemnify Neman with respect the subject property or any of their investment properties”; “the Neman Defendants did not identify any facts or emails or any other evidence of the purported agreement to indemnify in response to discovery propounded by Farkondehpour Defendants in this action”; the “Neman Defendants did not attach a copy of any written agreement to indemnify to their Cross-Complaint against Farkhondehpour in this action”; “Farkondehpour denies, and has consistently denied throughout many years of litigation, that he ever agreed to indemnify Neman with respect to the subject property or any other properties”; and “in the recent Final Award issued in arbitration between the Neman and Farkhondehpour parties which included findings relating to the subject property, the Honorable Charles W. McCoy (Ret.) found that ‘the facts in connection with the loss of [the subject property] do not sufficiently support a claim that either party is liable to the other for the loss of the [] property.’ (See Ex. B, Supp. Bolson Decl., ¶3).”

The Court agrees with the Neman Defendants. The Supreme Court of California has clarified that its “conclusion that a good faith settlement bars a claim for implied contractual indemnity is not at all inconsistent with the principle that such a settlement would not preclude an indemnity action based on an express indemnity agreement.” (Bay Develop., Ltd v. Superior Court, supra, 50 Cal.3d at p. 1032.) A review of the Neman Defendants’ Cross-Complaint’s seventh cause of action against the Farkondehpour Defendants shows that it is premised on an express oral contract between the parties for Saeed to indemnify Morad Neman for any liabilities relating to the Real Property. (See 10/13/20 Cross-Complaint, ¶ 7, 44-45.)

The Court therefore DECLINES the Farkondehpour Defendants’ invitation to dismiss the Neman Defendants’ Cross-Complaint’s seventh cause of action.

Conclusion

Defendants/Cross-Defendants/Cross-Complainants’ Saeed Farkondehpour, an individual, Saeed Farkondehpour, Trustee of the 1993 Farkondehpour Family Trust’s Motion for Determination of Good Faith Settlement is GRANTED.

All other joint tortfeasor or co-obligor of the Farkondehpour Defendants is BARRED from any further claims against the Farkondehpour Defendants for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

However, the Court DENIES the Farkondehpour Defendants’ request to dismiss the Neman Defendants’ Cross-Complaint’s seventh cause of action.