Judge Jill Feeney, Case 20STCV23612 2023-03-22 Tentative Ruling

This is an action for assault, battery, intentional infliction of emotional distress, negligence, premises liability, negligent hiring, and loss of consortium arising from an altercation which took place in June 2018. Plaintiffs Turuyan and Norma Cungsulu filed their Complaint against Defendants Joshua Marlon Torres, Ralphs Grocery Company, and Combined Properties Incorporated on June 22, 2020.

California Code of Civil Procedure section 877.6(a)(1), provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein 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 . . . and one or more alleged tortfeasors or co-obligors . . . .” “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. section 877.6(c).) Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. (Code Civ. Proc. section 877(a).)

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499 (Tech-Bilt, Inc.), 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.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” (Tech-Bilt, Inc., supra, 38 Cal.3d at p. 499.) “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” (Ibid.)

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” (Id. at pp. 499-500.)

“[A] court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the 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.]” (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)

The Court notes that Settling Defendants submitted an opposition late on March 14, 2023. The deadline for Settling Defendants to file their opposition was March 9, 2023. Because the opposition is untimely, the Court declines to consider Settling Defendants’ opposition.

Settling Defendants filed an application for good faith settlement. The terms of the settlement include that Plaintiffs would release all claims against Settling Defendants in exchange for $7,500 total as to all three Settling Defendants.

Ralphs does not provide an estimate of Plaintiffs’ total recovery. However, Ralphs’ counsel testifies that Plaintiffs previously estimated in discussions over mediation that damages were at least in the “low seven figures” and at most “3-5 million in general damages” with an additional six figures in special damages. (Johnson Decl., ¶10.) Plaintiffs are seeking damages for Turuyan Cungsulu’s injuries, which include severe injuries to his face, head, right arm, teeth, jaw, and other symptoms, including difficulty sleeping, loss of sense of smell, anxiety, emotional distress, pain, and irritability, among others. (Id., ¶9.) Given Plaintiffs’ own estimates and the severity of Turuyan Cungsulu’s injuries, Plaintiffs’ total recovery is at the very least $1 million. Settling Defendants propose a settlement of$7,500 total, with each Defendant paying $2,500. This constitutes only .25% of the lowest estimate of Plaintiffs’ damages. This amount is significantly lower than Plaintiffs’ total recovery. This factor weighs against a finding of good faith.

Ralphs argues that Settling Defendants are paying significantly less than their apportioned liability. Ralphs’ counsel testifies that Combined Properties, Inc. and Seventy-Fifth LLC are now the owners and property managers of the subject premises and successors in interest to Granada Hills Marketplace, LLC, who owned the premises. (Johnson Decl., ¶11.) Defendant Platinum Security admitted that they had a duty to provide security services and prevent criminal activities in the parking lot where the incident took place. (Notice of Lodging Exhibits Exh. I, Alonzo Decl., 45:7-10.) Ralphs also provides a lease agreement which states that the landlord maintained, operated, and controlled the common area where the incident took place and was required to provide reasonable security in the common area. (Notice of Lodging Exhibits, Exh. F.) The agreement and Platinum Security’s PMK stated that common areas include the exterior parking lots, including the parking lot where the incident took place. (Notice of Lodging Exhibits, Exh. F, Alonzo Depo., 55:5-24.)

Ralphs provides sufficient evidence that Settling Defendants should bear some liability for Plaintiffs’ damages. Defendants Combined Properties, Inc. and Seventy-Fifth LLC were the owners and property owners who owned or controlled the property where the incident took place. Platinum Security was contracted to provide security in the common area where the incident took place. All three Settling Defendants had a duty to provide reasonable security to the common areas on the subject premises. Although the apportionment of liability is not certain, the evidence is sufficient to show that Settling Defendants’ liability would be significantly greater than .25% of Plaintiffs’ total damages for each Defendant. This factor weighs against a finding of good faith.

Platinum Security refused to produce their insurance information in discovery. (Johnson Decl., ¶3.) Combined Properties and Seventy-Fifth Avenue never responded to discovery. (Id.) This factor does not weigh in favor of or against a finding of good faith.

Other factors do not weigh strongly in favor of or against a finding of good faith. It is not disputed that a settling defendant should pay less for resolving the case early. Although Ralphs argues that Settling Defendants engaged in settlement discussions without Ralphs, this alone is insufficient evidence of fraud or collusion.