Judge Jill Feeney, Case 22STCV22446 2023-03-14 Tentative Ruling

This is an action for intentional public nuisance and negligence arising from a vehicle collision which took place in June 2022. Plaintiff Lola Ross filed her Complaint against Defendants Fulcrum Construction, Inc. (“Fulcrum”), Pacific Portable Services, and Marie Nelson on July 12, 2022.

Fulcrum moves for determination of good faith settlement. Fulcrum agreed to settle for $8,000 to be paid to Lola Ross (Plaintiff in this case), $5,999 to be paid to Anna Ross and $1 to be paid to Robert S. Ross. Nelson refused to join the settlement and her portion would have been $2,000. Fulcrum argues that it is paying more than its fair share of damages.

Nelson argues that she would be exposed to paying $2,000-$5,000 in damages for which she denies any liability. Nelson argues that Fulcrum bears the greatest liability in this case and the $8,000 settlement is far less than its proportion of fault. Nelson also argues that she has not completed discovery that is necessary to determine liability. Nelson also objects to the settlement because it would bar her Cross-Complaint for indemnification and apportionment of fault against Fulcrum.

Fulcrum argues that it has responded to all of Nelson’s discovery requests and that she has not propounded any other discovery requests, including deposition or inspection notices. Fulcrum also argues that Nelson fails to provide any evidence showing a lack of good faith other than her own counsel’s declaration. Fulcrum also notes that Plaintiff offered to settle with Nelson for $2,000.

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.)

Nelson challenges Folcrum’s settlement on the grounds that the settlement would leave her with significant liability and that settlement is premature in this matter. Plaintiff seeks damages for property damage and lost use of her vehicle. The Court now applies the Tech-Bilt factors to determine whether the settlement was made in good faith.

Fulcrum’s counsel testifies that Plaintiff’s responses to form interrogatories show her property damage was $11,523.07. (Crisler Decl., ¶6.) Additionally, Plaintiff claimed $4,000 in rental car expenses but produced no documentation of those expenses. (Id.) Plaintiff’s total approximation of recovery is $15,523.07. Nelson does not dispute this amount in the opposition. On January 25, 2023, the Court denied Nelson’s motion to challenge good faith settlement as to Defendant Pacific Portable Services and found that Plaintiff’s damages was at most $23,000.

Plaintiff’s daughter, Anna Ross, was driving a vehicle owned by Plaintiff on June 3, 2022. As she was exiting a shopping center, she could not see through a fence covered in shade cloth that lined one corner of the shopping center. Defendant Marie Nelson was driving though a parking lot adjacent to the fence and could not see through the shade cloth. Nelson’s vehicle then struck Plaintiff’s vehicle because Nelson could not see Plaintiff’s vehicle. The parties dispute liability. Fulcrum agreed to settle for $8,000 to be paid to Plaintiff Lola Ross.

Nelson argues that settlement is premature because Plaintiff and Nelson are in the process of scheduling time for experts in the field to download information from the subject vehicles’ electronic data recorders in mid to late February. (Opp. p. 4.) Nelson has not deposed Plaintiff or her daughter. However, as of March 1, 2023, when Fulcrum filed an amended reply, Nelson had not noticed depositions, downloaded the electronic data, or propounded any other discovery requests. (Reply, p.2.) Nelson does not explain how the data would significantly alter the proportion of Fulcrum’s liability.

Nelson’s evidence is insufficient to show that the amount Fulcrum is to pay in the settlement is out of the ballpark. Fulcrum is to pay Plaintiff $8,000. The prior settlement with Pacific Portable was $2,500. That means that given that Plaintiff may at most get $23,000 in total, Defendant Nelson at most would be liable for $12,500 and most likely less given that it appears that the damages are actually less than $23,000.

Fulcrum notes that there is a dispute as to who actually placed the fencing with the screening in place that obscured the drivers’ view of the road. However, neither Fulcrum nor Nelson offer evidence of Fulcrum’s proportionate liability.

Other factors weigh in favor of finding that the settlement is in good faith. There is no allegation of collusion or fraud here. Moreover, it is recognized that a settling defendant should pay less for resolving the case early.

Nelson objects to the settlement on the grounds that she would lose the ability to litigate for the property damages caused to her vehicle by Plaintiff’s daughter. However, settlement under Code Civ. Proc., section 877.6, subd. (c) would only bar Nelson’s claims for comparative negligence or comparative fault against the settling parties, Fulcrum and Pacific Portable Services. Her claims against Plaintiff would not be barred.

Nelson also argues that settlement would bar her Cross-Complaint for proportionate liability against Fulcrum to be heard. This argument is without merit because Plaintiff failed to show here that Fulcrum’s proportionate liability was disproportionate the amount it would pay in settlement.