Judge Cherol J. Nellon, Case 19STCV04259 2023-04-18 Tentative Ruling

Judge: Cherol J. Nellon, Case: 19STCV04259, Date: 2023-04-18 Tentative Ruling

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Case Number: 19STCV04259 Hearing Date: April 18, 2023 Dept: 28

Cross-Defendant SVI, LAX, LLC’s Motion to Quash Amendment to Cross-Complaint; Defendant SVI, LAX, LLC’s Motion for Determination of Good Faith Settlement

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On February 8, 2019, Plaintiff Ellis Garrett Marshall (“Plaintiff”) filed this action against Defendants SVI, LAX, LLC (“SVI”), Marriott International, Inc. (“Marriot”), Koar Airport Associates (“KAA”), Koar International Airport Center, LLC. (“KIAC LLC”), and Koar International Airport Center, L.P. (“KIAC LP”) for negligence and premises liability. On February 13, 2020, Plaintiff amended the complaint to include Defendants Browning Fire Protection Inc. (“BFP”) and R.D. Olson Constructions (“RDOC”).

On July 15, 2019, SVI, Marriott, KAA and KIAC LP filed their answer and a Cross-Complaint against Roes 1 through 50. On May 27, 2020, they amended the Cross-Complaint to include RDOC and BFP as Cross-Defendants. On August 28, 2020, RDOC Answered the Cross-Complaint.

RDOC filed its answer on April 30, 2020. On November 24, 2021, RDOC was dismissed from SVI’s Cross-Complaint, with prejudice, pursuant to the Cross-Complainants request. On November 29, 2021, the Court dismissed RDOC from the complaint, with prejudice, pursuant to Plaintiff’s request.

On December 26, 2020, BFP filed its answer and a Cross-Complaint against Moes 1 through 50.

On January 3, 2022, KIAC LP was dismissed without prejudice, pursuant to Plaintiff’s request. On January 25, 2022, Marriott was dismissed without prejudice, pursuant to Plaintiff’s request.

On March 1, 2023, SVI filed a Motion to Quash Amendment to Cross-Complaint to be heard on April 18, 2023.

On March 1, 2023, SVI filed a Motion for Determination of Good Faith Settlement to be heard April 14, 2023. The Court continued the hearing to April 18, 2023.

Trial is currently scheduled for May 1, 2023.

PARTY’S REQUESTS

SVI requests the Court dismiss, strike, deny or quash BFP’s amendment to Cross-Complaint identifying SVI as MOE 1.

SVI requests the Court find its settlement with Plaintiff is in good faith.

LEGAL STANDARD

CCP § 474 provides that upon learning the identity of a defendant, “the pleading or proceeding must be amended accordingly.”

[T]he trial court is vested with broad discretion when presented with a motion for leave to file an amended pleading and may consider such factors as whether the proffered pleading states facts which could have been pleaded earlier, and whether a party has established a reasonable excuse for the delay.” (A.N. v. County of Los Angeles (2009) 171 Cal.App.4th 1058, 1067.)

CCP § 887.6(a)(2) states that “[i]n 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. 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. The notice by a nonsettling party shall be given in the manner provided in subdivision (b) of Section 1005. However, this paragraph shall not apply to

settlements in which a confidentiality agreement has been entered into regarding the case or the terms of the settlement.” The statute further clarifies that the party asserting the lack of good faith shall have the burden of proof on that issue.

CCP § 877 states “[w]here 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, or to one or more other co-obligors mutually subject to contribution rights, it shall have the following effect: (a) It shall not discharge any other such party 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. (b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties.”

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “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.”

DISCUSSION

Motion to Quash

SVI’s motion is based upon an alleged amendment that occurred on February 24, 2023, in which BFP amended the Cross-Complaint identifying SVI as MOE 1. In reviewing the Court’s record, there is no record of any such amendment being made. According to the Court’s record, BFP has made no amendments to the Cross-Complaint. BFP has also not filed a motion for leave to amend said cross-complaint. The only relevant cross-defendants are “MOES 1 through 50, inclusive.” The Court cannot quash, strike or deny an amendment that has not been made according to the Court record. The motion is moot.

Good Faith Settlement

Plaintiff alleges that, while staying as a guest at SVI’s hotel, he slipped and fell on water in the bathroom of his unit. The water was allegedly due to a water leak three floors above Plaintiff’s unit, as a rusted through pipe nipple screwed into a rusty pipe elbow started spraying water that eventually leaked into Plaintiff’s room. SVI allegedly did not know about the rusted pipe until the actual accident. 2 years prior, BFP installed a water system. Multiple experts have found that BFP should have identified and removed the rusty pipe when it installed the system.

Recovery and Proportionate Liability

According to experts, SVI likely has a low level of liability; BFP should have used all new piping when installing the new water system, as is the industry standard. Additionally, examination of the threaded plug showed it was installed incorrectly, which would have contributed to the leak. SVI, in comparison, did not cause or even have notice of the potential leak or rusty pipe. All liability would stem from mere ownership, and there is no indication that SVI was on actual or constructive notice, as BFP failed to relay that the pipe was rusty. Additionally, Plaintiff was walking around barefoot in the dark, and thus could not see the floor—he could have turned on the lights and would have been more aware of the dangerous condition.

SVI and Plaintiff have agreed to settle for $2,500,000.00. It is unclear how much Plaintiff is specifically requesting in monetary damages. He has made a claim for damages based on injuries to his elbows, hands, wrists and back, as well as loss of earnings as a pilot for an unspecified time period. Although SVI failed to provide an estimated claim for economic damages, the Court finds it unlikely that $2,500,000.00 does not constitute at least a small portion of the requested damages. It is likely that the payment far exceeds the proportionate liability of SVI and is more than fair as payment for Plaintiff.

Allocation of Settlement

All of the settlement will be delivered to Plaintiff, who is the only plaintiff to this action.

Financial considerations

SVI did not provide information regarding financial conditions.

Collusion or Fraud

There is no indication of fraud or collusion. This was an arms-length settlement conducted after extensively engaging in discovery with all parties. This factor leaves in favor of granting the motion.

Conclusion

The Court finds that SVI has satisfied the Tech-Bilt factors. SVI provided sufficient information as to all factors except for financial considerations. However, given the large amount in settlement, the financial considerations are not necessarily relevant. (L.C. Rudd & Son, Inc. v. Sup.Ct. (1997) 52 Cal.App.4th 742, 749.) Generally, factors support finding the settlement to be made in good faith. The Court grants the motion.

CONCLUSION

Cross-Defendant SVI, LAX, LLC’s Motion to Quash Amendment to Cross-Complaint is MOOT.

Defendant SVI, LAX, LLC’s Motion for Determination of Good Faith Settlement is GRANTED. The Court dismisses all pending and future claims against SVI, including Cross-Complaints based in equitable indemnity.

Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.