Judge: Christopher K. Lui, Case: BC696195, Date: 2022-08-24 Tentative Ruling
Case Number: BC696195 Hearing Date: August 24, 2022 Dept: 76
Pursuant to California Rule of Court
3.1308(a)(1), the Court does not desire oral argument on the motion addressed
herein. As required by Rule 3.1308(a)(2), any party seeking oral argument
must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to
appear and argue. Notice to Department 76 may be sent by email to
smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of
intention to appear is not given and the parties do not appear, the Court will
adopt the tentative ruling as the final ruling.
This is an action for breach of
an agreement for the purchase of real property, whereby Defendants have failed
to sell the property.
Defendant Regions Bank moves for a determination of good faith settlement with Plaintiff.
Plaintiff Joseph Shabani moves for entry of the partial judgment as the final judgment.
TENTATIVE RULING
Defendant Regions Bank’s application for determination of good faith settlement is DENIED.
Plaintiff Joseph Shabani’s motion for entry of partial judgment as final judgment is taken OFF-CALENDAR AS MOOT.
ANALYSIS
Motion For Determination of Good Faith Settlement
Request For Judicial Notice
Defendant Regions Bank’s request that the Court take judicial notice of various court records pertaining to Joseph Shabani v. Regions Bank et al., Los Angeles County Superior Court case number BC696195; In re Julius & Chtristopher Burton Family Trust dated September 22, l99B (as amended on June I2, 2006), Los Angeles County Superior Court case number BP125813 is GRANTED per Evid. Code, § 452(d)(court records).
Plaintiff’s Evidentiary Objections and Request To Strike Portions of Declarations Submitted In Support of Defendant Cal Burton’s Opposition
Declaration of Cal Burton
¶ 3: SUSTAINED. Irrelevant.
¶ 4: SUSTAINED. Irrelevant.
¶ 5: SUSTAINED. Irrelevant.
¶ 6: SUSTAINED. Irrelevant.
¶ 7: SUSTAINED. Irrelevant.
¶ 9: OVERRULED. Relevant; Best Evidence Rule was repealed in
1998.
¶ 10: OVERRULED. Relevant; not hearsay.
¶ 11: OVERRULED. Relevant; permissible lay opinion; not
hearsay—used to show legal effect of non-approval; Best Evidence Rule was repealed
in 1998.
¶ 12: OVERRULED. Relevant; permissible lay opinion;
sufficient foundation.
¶ 13: SUSTAINED. Irrelevant; speculation.
¶ 14: SUSTAINED. Irrelevant.
Declaration
of Walter Hart
¶¶ 3, 4, 5, 6, 7, 8, 10, 11: SUSTAINED. Irrelevant.
Declaration
of Julius D. Burton, Jr.
¶¶ 4, 5, 8, 9, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, 27: SUSTAINED.
Irrelevant.
Declaration
of James C. Jardin
¶¶ 6, 7, 8: SUSTAINED. Evid. Code, § 1152.
¶ 10: OVERRULED. Does not violate Evid. Code, § 1152.
¶ 22: SUSTAINED. Speculation; legal conclusion.
Defendant Regions Bank’s Evidentiary Objections To Declarations Submitted In Support of Defendant Cal Burton’s Opposition
Declaration of Cal Burton
No. 1: SUSTAINED. Irrelevant; lack of foundation.
No. 2: SUSTAINED. Irrelevant; lack of foundation.
No. 3: OVERRULED. Relevant; sufficient foundation.
No. 4: OVERRULED. Relevant; sufficient foundation.
No. 5: OVERRULED. Relevant; sufficient foundation; proper
lay opinion.
No. 6: OVERRULED. Relevant; sufficient foundation; proper
lay opinion.
No. 7: OVERRULED. Relevant; sufficient foundation.
No. 8: OVERRULED. Relevant; sufficient foundation; proper
lay opinion.
No. 9: SUSTAINED. Lack of foundation.
No. 10: SUSTAINED. Irrelevant.
Declaration of Julius D. Burton, Jr.
Nos. 11 – 31: SUSTAINED. Irrelevant.
Declaration of Walter Hart
Nos. 32 – 39: SUSTAINED. Irrelevant.
Declaration of James C. Jardin
Nos. 40 – 58: SUSTAINED. Irrelevant.
Discussion
Defendant Regions Bank moves for a determination of good faith settlement with Plaintiff.
CCP § 877.6(a)(1) provides:
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 shall be 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, upon giving notice in the
manner provided in subdivision (b) of Section 1005. . . .
The party asserting the lack of good faith has the burden of proof on that issue. CCP § 877.6(d). The Supreme Court has set forth several factors to consider when determining the good faith nature of a settlement: (1) rough approximate of plaintiff’s total recovery; (2) the settlor’s proportionate liability; (3) amount paid in settlement; (4) allocation of settlement proceeds among the plaintiffs; (5) recognition that a settler should pay less in settlement that he would if he were found liable after trial; (6) financial condition and insurance policy limits of the settling defendants; (7) the existence of collusion, fraud, or tortuous conduct aimed to injury the interests of non-settling defendants. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) In assessing the good faith of any settlement, the trial court must properly consider whether the proposed settlement was within the reasonable range of the settling tortfeasor’s total liability, taking into account the settling tortfeasor’s potential liability for indemnity. (Far West Financial Corp. v. D&S Co. (1988) 46 Cal.3d 796, 814-815.)
Another key factor is the settling tortfeasor's potential liability for indemnity to joint tortfeasors. (Citation omitted.) The trial court calculates “the culpability of the [settling] tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” (Citation omitted.)
(Long Beach Memorial Medical Center v. Superior Court (2009) 172 Cal.App.4th 865, 873.)
However, as argued by Defendant Cal Burton, Successor Trustee, it appears that CCP § 877.6(a) does not apply because Defendant Regions Bank, on the one hand, and Defendant Burton, on the other are not “joint tortfeasors,” nor “co-obligors on a contract debt” for purposes of that section.
Plaintiff Joseph Shabani asserts the following causes of action in the First Amended Complaint:
¿ Against Defendant Regions Bank, Trustee of the Julias and Christopher Burton Family Trust dated September 22, 1998:
Fourth Cause of Action – Intentional Misrepresentation; Fifth Cause of Action – Promissory Fraud; Sixth Cause of Action – Negligent Misrepresentation; Seventh Cause of Action – Declaratory Relief.
The gist of the allegations against Regions Bank are tortious: that Regions misrepresented that it was the owner of the property, had authority to enter into the agreement with Plaintiff, intended to sell the properties to Plaintiff pursuant to the Agreement, would obtain the requisite approval from the court to sell the properties.
¿ Against Defendant Cal Burton, Successor Trustee of the Julias and Christopher Burton Family Trust dated September 22, 1998
First Cause of Action – Breach of Written Contract; Second Cause of Action – Breach of Covenant of Good Faith and Fair Dealing; Third Cause of Action – Specific Performance and Damages.
The gist of the allegations against Burton are contractual: breach of the Agreement by failing as successor trustee to sell the property, withdrawing the petition for sale, repudiating the Agreement, and stating an intention to petition the Court to invalidate the Agreement based on lack of authority of the predecessor trustee Regions.
CCP 877.6 only applies to “joint tortfeasors or co-obligors on a contract debt.” Here, Defendant Burton is not alleged to be a tortfeasor at all—his liability is contract based. A such, he cannot be a joint, concurrent or successive tortfeasor.
We presume the Legislature was aware of the modern use of the term ‘joint tortfeasors’ as embracing joint, concurrent and successive tortfeasors when section 877.6, subdivision (c) was drafted.” Thus, under Turcon, when the negligence of both tortfeasors “concurred to produce the sum total of the injuries to the plaintiff,” section 877.6 applies. (Turcon, supra, at p. 284.) And, the court in Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1115 [103 Cal. Rptr. 2d 858] said, “Joint tortfeasors may act in concert or independently of one another. [Citation.]”
(Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1271 [bold emphasis added].)
By that same token, Region’s liability is alleged to be tortious, not a contract debt. As such, it cannot be a co-obligor with Defendant Burton on the contract.
[I]t is obviously necessary to focus on the most restrictive phrase, which would be “co-obligor on a contract debt.” The crucial word is “a”—the parties must be co-obligors on “a” single contract. In other words, they must share the same contractual obligation. It is, of course, axiomatic that where language in a statute is clear, courts have nothing to interpret or construe. (Cummings v. Stanley (2009) 177 Cal.App.4th 493, 507–508 [99 Cal. Rptr. 3d 284]; see also American Nat. Ins. Co. v. Low (2000) 84 Cal.App.4th 914, 924 [101 Cal. Rptr. 2d 288].) Hence, the plain meaning of the statute is that its benefits apply to codefendants who are liable on the same contract.
(Tiffin Motorhomes, Inc. v. Superior Court (2011) 202 Cal.App.4th 24, 29 [bold emphasis and underlining added].)
As such, the good faith settlement device set forth in CCP § 877.6 is unavailable to the parties.
The application for determination of good faith settlement is DENIED.
Motion For Entry Of Partial Judgment As Final Judgment
Plaintiff Joseph Shabani moves for entry of the partial judgment as the
final judgment. However, this motion was expressly conditioned on the Court
granting Region Bank’s Application for Determination of Good Faith Settlement
which did not occur. (See Notice of Motion, Page 2:5-7; Motion, Page 7:8-9.)
As such, the motion for entry of partial judgment as final judgment is taken
OFF-CALENDAR AS MOOT. As such, the Court declines to rule on the request for
judicial notice and evidentiary objections.