Judge: Frank M. Tavelman, Case: 22BBCV01270, Date: 2024-04-05 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify "all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue."  The tentative ruling will become the ruling of the court if no argument is requested.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 22BBCV01270    Hearing Date: April 5, 2024    Dept: A

LOS ANGELES SUPERIOR COURT

NORTH CENTRAL DISTRICT - BURBANK

DEPARTMENT A

MOTION TO CHALLENGE GOOD FAITH SETTLEMENT

NOTICE:

The Court is not requesting oral argument on this matter.  Pursuant to California Rules of Court, Rule 3.1308(a)(1) notice of intent to appear is required.  Unless the Court directs argument in the Tentative Ruling, no argument will be permitted unless a “party notifies all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no notice of intent to appear is received.”  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

This is a personal injury action in which Cathy Feindel (Plaintiff) seeks damages from falling on the sidewalk near 11942 Saticoy Street, North Hollywood, California 91605. Plaintiff named as defendants the City of Los Angeles (the City), the County of Los Angeles (the County), Pacific Bell Telephone Company dba AT&T (PacBell), and Lissett Avila & Elvys A. Martinez (Property Owners). Plaintiff alleges the sidewalk was fractured, sunken, and dipped which caused her to fall and break her ankle. Plaintiff further alleges that the sidewalk in the area surrounded a manhole cover owned and installed by PacBell.

PacBell and Plaintiff appear to have reached a settlement and seek a Determination of Good Faith Settlement (Application.) The City now moves to contest the settlement on grounds that it fails to meet the criteria for determining good faith under C.C.P. § 877.6 and Tech-Bilt, Inc. v. Woodward-Clyde & Associates. PacBell opposes and the City replies.  

ANALYSIS: 

I.                    LEGAL STANDARD 

Under C.C.P. § 877.6, “[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.” (C.C.P. § 877.6(c).) “The party asserting the lack of good faith has the burden of proof on that issue.” (C.C.P. § 877.6(d).)

C.C.P. § 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.)

In Tech-Bilt, the California Supreme Court set forth the factors to consider when determining whether a settlement was 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. (Id. at pp. 498-501.) “Practical considerations obviously require that the [trial court’s] evaluation [of the settlement] be made on the basis of information available at the time of settlement.” (Id. at p. 499.)

Substantial evidence showing the nature and extent of the settling defendant’s liability is required. Without such evidence, a “good faith” determination is an abuse of discretion. (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1348; see Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834 [attorney’s declaration re settling defendant’s liability insufficient where he failed to provide specific supporting facts or expert opinion].)

“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.) “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.” (C.C.P. § 877.6(b); see also City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

II.                 MERITS

PacBell applies for a determination of good faith settlement between themselves and Plaintiff. The agreement requires PacBell to pay $20,000 in settlement of Plaintiff’s claims against them. (App., Kadomatsu Decl. ¶ 3.)

The Court first addresses whether PacBell has shown substantial evidence to support its critical assumption as to its liability. Here, because Plaintiff’s action sounds in negligence, critical factors in assessing PacBell’s liability are PacBell’s duty to Plaintiff and any breach of that duty by PacBell. The City argues that PacBell has offered no substantial evidence supporting the claim that they were not liable. The City’s argument that PacBell must offer evidence of “good faith” remains salient as per Mattco.

In reviewing the evidence offered both in the motion and PacBell’s opposition, the Court is satisfied that PacBell has shown key information necessary to support its application.   PacBell’s evidence which shows that the City received and responded to several Sidewalk Repair Requests prior to the incident is persuasive with the Court. PacBell submits Sidewalk Repair Requests dated May 10, 2018, December 19, 2018, and August 30, 2022. (Kodamatsu Decl., Exh. D. Special Interrogatories Nos. 47, 49, 72, 73, 74.)  Additionally, the City appears to have performed a small asphalt repair on the location prior to the incident. (Kodamatsu Decl., Exh. D. Special Interrogatories Nos. 19 and 20, 30.) These showings are strongly indicative of a duty owed by the City to maintain the sidewalk, rather than primarily PacBell.

PacBell also offers the declaration of Stavros Chrysovergis (Chrysovergis), a geological scientist and civil engineer. Chrysovergis states that PacBell installed a utility vault and manhole cover at the location around 1979. (Chrysovergis Decl. Exh. A.) Chrysovergis states, based on his personal inspection of the location, that the failure of the sidewalk around the manhole cover was not due to PacBell’s facility or installation of the manhole/vault. (Chrysovergis Decl. ¶ 12.) Chrysovergis instead posits that the sinking sidewalk was caused by a sudden condition such as water source which eroded the soil beneath the sidewalk. (Chrysovergis Decl. ¶ 15.) Chrysovergis points to excavations in 2014 between a nearby water meter and fire hydrant as the likely culprits of the erosion. (Chrysovergis Decl. ¶ 17, Exh. E.)

In contravention of PacBell’s argument, the City offers the declaration of Arnold A. Rodio (Rodio), a licensed plumbing contractor. Rodio states that based on his own site inspection, the collapse of the sidewalk is attributable to improper compaction of the soil around the PacBell vault when it was installed. (Rodio Decl. ¶ 6.) Rodio states that over time water would seep into the improperly compacted soil and create a void under the sidewalk. (Id.)

The Court notes that Chrysovergis argues Rodio’s conclusion to be incorrect. Chrysovergis states that failure to properly compact the soil would result in the sidewalk sinking almost immediately, not 40 years after the vault was installed. (Chrysovergis Decl. ¶ 13.)

PacBell argues that the City has admitted it was responsible for maintaining the sidewalk at the location in a condition safe for public use. (Kodamatsu Decl., Exh. E, RFA No. 12.) PacBell’s argument appears to be that the City has admitted ultimate or sole responsibility in this matter. The Court finds this argument unpersuasive. PacBell’s argument ignores the City’s responses to RFAs which ask the City to admit (1) that they created the dangerous condition, (2) that they maintained exclusive right to control the location, (3) that they were responsible for repairing the sidewalk, and (4) that they were aware of the dangerous condition and did nothing to repair the sidewalk. (Exh. E, RFA Nos. 7, 2, 14, 15-17.) The City denied all of these admissions, indicating that the City has not admitted sole or even primary responsibility for the condition of the sidewalk.

The Court finds the existence of the Sidewalk Repair Requests and the declaration of Chrysovergis serve as substantial evidence supporting PacBell’s theory of liability. The Court is not determining whether PacBell or the City bore sole responsibility to maintain the sidewalk. Nor is the Court determining the exact percentage of liability borne by both parties. Instead, the Court is determining whether PacBell has provided substantial evidence in concert with its theory of potential liability. While PacBell appears to be arguing the sidewalk was completely within the City’s control, the reality is that PacBell is offering $20,000 to Plaintiff in settlement of any claims against them. Unfortunately, as highlighted in the City’s opposition, the Court is unable to apply its experience to determine if this amount is within the scope of compensation for a partial tortfeasor for a personal injury action of this nature. The Court is only able to determine that the current medical bills are $62,000, immediate future treatment of at least $24,000, but the Court is unable to determine the extent of any other treatment needed.   The City of Los Angeles has asserted that another party has already settled a portion of the case for $300,000, which far exceeds the medical information that was provided in this application.   A reasonable assumption is that damages exceed $386,000 should this matter go to trial.   However, the Court does not have sufficient information to determine the ultimate exposure at jury trial.  

The Court will address the City’s argument that the Tech-Bilt factors are unsatisfied here. As previously stated, the Tech-Bilt factors need not all be present for the Court to determine the settlement was in good faith. The Tech-Bilt factors are guidelines for determining good faith, not requirements that need to be exhaustively proved by the party applying for a determination. This is particularly relevant as to the City’s claim that PacBell has not included any information as to their financial condition or insurance policy limits. This is an insignificant factor for the Court.  It is commonly known that PacBell is a large well-funded corporation.   For this type of case, insurance coverage is of little concern to the Court in determining a good faith settlement. The Court does not believe that as a defendant, PacBell would be unable to pay any monetary judgment based on the facts underlying this case and apportionment of fault.  Nonetheless, the Court believes that the factor of a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability is essential.  This information is absent.  While the contesting party has the burden to challenge the settlement, the information provided has done so. 

The City’s substantial argument contends that the settlement is grossly disproportionate to the amount of damages Plaintiff claims. Plaintiff claims damages “in excess of $25,000”, as reflected in her Claim for Damages filed with the City of Los Angeles on September 6, 2022. (Mot. Exh. A.) As evidence of Plaintiff’s claimed damages, the City points to a medical bill from Saint Joseph Medical Center for $62,000. (Mot. p. 3, ¶ 1.)  The Court believes that the City has shown that insufficient evidence is before the Court to determine Plaintiff’s damages, and as such, the Court is unable to determine if a $20,000 settlement by a partial tortfeasor is appropriate, especially in light of another defendant having settled for $300,000.   Furthermore, the proximity of the sidewalk defect to the manhole cover and underground vault is consistent with a jury finding PacBell more than nominally at fault in the case.

PacBell has presented evidence indicating that their liability was partial and, in many ways, smaller than that of the City and other defendants. This is not to say the Court’s determination here is dispositive of causation at trial or any other point of the case. (See Dole Food Co., Inc. v. Superior Court (2015) 242 Cal.App.4th 894, fn. 11 [ holding that any finding or determinations made on contested issues of liability are tentative and solely for the purpose of evaluating the food faith of the proposed settlement.].)

Accordingly, the Motion to Challenge the Good Faith Settlement is GRANTED. The Application for Determination of Good Faith Settlement is DENIED without prejudice.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

The City of Los Angeles’s Motion to Challenge Good Faith Settlement came on regularly for hearing on April 5, 2023, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION TO CHALLENGE GOOD FAITH SETTLEMENT IS GRANTED.

THE APPLICATION FOR DETERMINATION OF GOOD FAITH SETTLEMENT IS DENIED WITHOUT PREJUDICE.

UNLESS ALL PARTIES WAIVE NOTICE, CITY OF LOS ANGELES TO GIVE NOTICE.

IT IS SO ORDERED. 

DATE: April 5, 2023                            _______________________________ 

                                                                        F.M. TAVELMAN, Judge 

Superior Court of California 

County of Los Angeles