Judge: Gail Killefer, Case: 21STCV35787, Date: 2023-04-03 Tentative Ruling


Case Number: 21STCV35787    Hearing Date: April 3, 2023    Dept: 37

HEARING DATE:                 April 3, 2023

CASE NUMBER:                  21STCV35787

CASE NAME:                        Ricardo Pagan, et al. v. Norbetas Sinica, et al.

MOVING PARTY:                Defendant, Norbetas Sinica

OPPOSING PARTIES:          Defendants and Cross-Defendants, Side, Inc. and David Ferrugio; Plaintiff, Ricardo Pagan, as Trustee of the Morrison Living Trust dated November 18, 2019 (“Settling Parties”)

TRIAL DATE:                        May 2, 2023

PROOF OF SERVICE:          OK 

                                                                                                                                                           

MOTION:                               Motion to Challenge Good Faith Settlement

OPPOSITION:                       March 22, 2023; March 28, 2023

REPLY:                                  None filed as of March 30, 2023

                                                                                                                                                           

TENTATIVE:                         The Settling Parties’ Application for good faith settlement is granted. Defendant Sinica’s motion to challenge the settlement is denied. The court finds the settlement was entered into in good faith, which bars any other joint tortfeasor or co-obligor from any further claims against the Defendant Brokers for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (CCP § 877.6(c).) The Cross-Complaint is dismissed. The Settling Parties are to give notice. 

 

                                                                                                                                                           

Background

This matter arises from the sale of a residence located at 19074 Sprague Street, Tarzania, California 91356 (the "Property") by Norbetas Sinica ("Defendant"') to Ricardo Pagan as Trustee of the Morrison Living Trust Dated November 18, 2019 ("Plaintiff'). The Complaint, filed September 29, 2021, alleges that Defendant cut out and removed many of the "smart" features of the home after the close of escrow.

In the Complaint, Plaintiff alleges causes of action for: (1) breach of written contract against Defendant Sinica; (2) theft and conversion against Defendant Sinica; and (3) aiding and abetting and negligence against Defendants Side, Inc. and Ferrugio (“Brokers”).

On November 22, 2021, Defendant and Cross-Complainant Sinica filed a Cross-Complaint against Brokers, alleging four causes of action: (1) negligence, (2) breach of fiduciary duty, (3) declaratory relief, and (4) implied equitable indemnity.

On February 2, 2023, Plaintiff reached a settlement with the Brokers conditioned upon a determination of good faith settlement. The Settling Parties filed their Motion for Determination of Good Faith Settlement.

On February 21, 2023, instead of filing an opposition, Defendant Sinica filed his motion to challenge the good faith settlement.

The motion regarding the good faith settlement now comes on for hearing.

Discussion 

 

I.                   Legal Standard 

 

Any party to an action involving joint tortfeasors may seek a hearing on the issue of the good faith of a settlement between the plaintiff and one or more of the alleged tortfeasors.

(CCP § 877.6(a)(1).)  “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.”  (CCP § 877.6(c).) 

 

“The statutory requirement of good faith extends not only to the amount of the overall settlement but as well to any allocation which operates to exclude any portion of the settlement from the setoff.”  (L.C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 748.)  “Where there are multiple defendants, each having potential liability for different areas of damage, an allocation of the settlement amount must be made.”  (Id. at p. 750.)  Failure to do so may preclude a ‘good faith’ determination because there is no way to determine the appropriate setoff pursuant to section 877 against the nonsettling defendant.  (Ibid.)  It is the burden of the settling parties to explain to the court and to all other parties the evidentiary basis for any allocations and valuations made sufficient to demonstrate that a reasonable allocation was made.1  (Ibid.) 

 

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 (Tech-Bilt), the California Supreme Court set forth the factors to be considered in determining whether a settlement is in good faith:  

 

[T]he intent and policies underlying section 877.6 require that a number of factors be taken into account including 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. [Citation.]

Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement. 

 

(Id. at p. 499.) 

 

A trial court need not consider and weigh the Tech-Bilt factors when a motion for good faith determination is uncontested.  (Grand Terrace, supra, 192 Cal.App.3d at p. 1261.)  “That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.”  (Ibid.)   

 

II.                Analysis

The Settling Parties seek a determination that their settlement with Plaintiff for $7,500 was made in good faith and an order that “all claims for equitable comparative contribution or partial or comparative indemnity are barred,” as provided under CCP §§ 877 and 877.6 as against the Brokers pertaining to this matter, and the Cross-Complaint against them should be dismissed. (Motion, 1-5.)

The Brokers argue that their motion should be granted because their settlement with Plaintiff satisfies most Tech-Bilt factors and the Cross-Complaint, which acts as an indemnity claim, is no longer applicable. (Motion, 5-12.) Specifically, Brokers argue that their settlement satisfied these factors for the following reasons: (1) the settlement roughly represents a one-third portion of Plaintiff’s claims against all defendants, (2) the Brokers’ settlement payment is “roughly proportionate to the Settling Parties’ potential liability,” (3) was made in good faith), (4) the financial condition and insurance policy limit of Brokers supports the settlement amount, and (5) the settlement did not result from collusion, fraud or tortious conduct. (Id.)

Defendant Sinica opposes the good faith settlement. According to Sinica’s motion, the cross-complaint should not be dismissed because “the Cross-complaint does not seek contribution or indemnity on the basis that Defendants Side, Inc. and David Ferrugio and Mr. Sinica are joint tortfeasors. Instead, the Cross-complaint alleges that [Brokers] are 100% responsible for Plaintiff’s losses due to their independent and distinct tortious conduct. By advising Mr. Sinica to leave the property unlocked, and failing to conduct a final walk-through inspection has exposed [sic] Mr. Sinica to the false claims brought by Plaintiff.” (Sinica Motion, 5.)

Plaintiff’s opposition to Sinica’s challenge correctly explains that Sinica’s motion blatantly mischaracterizes the cross-complaint’s “declaration of the comparative liability of cross-complainant and each cross-defendant for damages” and its desire for a “declaration of the responsibility of cross-defendants and each of them as to any comparative indemnity owed to cross-complainant for any sum or sums for which cross-complainant may be found liable…” (P. Opposition, 1-2; Cross-Complaint, ¶21.) Further, Plaintiff correctly explains the Cross-Complaint requests both comparative indemnity and alleges at least partial responsibility on the part of Cross-Defendants for any final award of damages. (Id., Cross-Complaint ¶¶21-25.) Plaintiff also correctly explains that Sinica’s “motion is not supported by any declaration or evidence. The moving party, Sinica has the burden of proof. Since the only evidence before the Court is the declarations filed and served by Cross-Defendants Side, Inc. and David Ferrugio with their good faith application, there is no question about the good faith of the settlement.” (P. Opp., 2.)

Even further, Plaintiff also correctly explains that Sinica fails to argue or substantiate claims of any bad faith or collusion between the parties here. (Opp., 2.) Lastly, and perhaps most significantly, Plaintiff also correctly explains that while Sinica’s challenge alleges improper conduct by the Brokers, “there is no such allegation in the cross-complaint nor is there any evidence to support that argument.” (P. Opp., 2-3.)

The court need not reach Brokers’ opposition, as this court agrees with Plaintiff’s contentions and the analysis made within Settling Parties’ application for good faith settlement. While Sinica’s challenge makes mischaracterizations of the Cross-Complaint and asserts unsupported contentions regarding improper conduct, the motion woefully fails to meet the heavy burden required to show the settlement was not done in good faith and fails to meet the Tech-Bilt factors. The Settling Parties’ motion includes a discussion of the requirements of Plaintiff’s causes of action against Brokers, how Brokers’ settlement represents a significant portion of the relatively small liability alleged by Plaintiff, how the settlement is bolstered by the financial condition and insurance circumstances of Brokers, and how the settlement was not made through collusion but rather in good faith between the parties. This is sufficient and further evidence about the Brokers’ liability is not required.

For these reasons, the Settling Parties’ application for good faith settlement is granted. Defendant Sinica’s motion to challenge the good faith settlement is denied. Pursuant to CCP §§ 877 and 877.6, the Cross-Complaint is dismissed.

Conclusion

The Settling Parties’ Application for good faith settlement is granted. Defendant Sinica’s motion to challenge the settlement is denied. The court finds the settlement was entered into in good faith, which bars any other joint tortfeasor or co-obligor from any further claims against the Defendant Brokers for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. (CCP §§ 877.6(c).) The Cross-Complaint is dismissed. The Settling Parties are to give notice.