Judge: John J. Kralik, Case: 19STCV18187, Date: 2023-04-07 Tentative Ruling

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Case Number: 19STCV18187    Hearing Date: April 7, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.   Allegations of the Operative Complaint

Plaintiff Tim Simonec is alleged to be an individual with a disability.  Mr. Simonec alleges that on May 10, 2018, he was riding his motorized scooter southbound on the sidewalk when he was presented with perilous and hazardous conditions, including but not limited to a ramp with a dangerous height and insufficient clearance/space for him to pass safely with his scooter on the sidewalk in front of the property at 736 N. Buena Vista, Burbank, CA (“Buena Vista Property”), which is owned by Defendant Helen J. Griffen Trust.  He alleges that the dangerous condition was compounded and made even more hazardous by concrete blocks abutting from the Buena Vista Property, which unlawfully reduced the clearance space needed for him to safely pass the area in his electric scooter.  In an attempt to navigate around the ramp, Mr. Simonec was required to maneuver his scooter towards the left, which caused his scooter to come into contact with concrete blocks abutting from the Buena Vista Property and he was thrown onto the street with his scooter landing on top of him. 

Defendant City of Burbank is alleged to have built the curb ramp and sidewalk in front of the Buena Vista Property some time prior to 1900.  Plaintiffs allege that City conducted a 2000 Alley Reconstruction Project (bid Schedule No. 1066) (“Alley Project”) between 2000 to 2002.  Defendant Toro Enterprises, Inc. (“Toro”) is alleged to have been contracted by City in 2000 to 2002 for repair work related to Project bid Schedule No. 1066, wherein Toro performed worked on the alley adjacent and connected to the ramp and sidewalk located in front of the Buena Vista Property where Plaintiff’s fall occurred on May 10, 2018. 

Plaintiff Janet L. Simonec is the wife of Tim Simonec.  Mrs. Simonec alleges the 7^th cause of action for loss of consortium. 

The second amended complaint (“SAC”), filed March 17, 2022 2021, alleges causes of action for: (1) violation of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. against City; (2) violation of California’s Disabled Persons Act, Civil Code, § 54 against City; (3) violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 et seq. against City; (4) dangerous condition of public property against City; (5) negligence against all Defendants; (6) premises liability against all Defendants; and (7) loss of consortium against Toro, Jerry Hannigan, Sean Castillo, Kleinfelder, Inc., and Eileen D. Kenny individually and as successor trustee of the Helen J. Griffen Trust.  The 1^st to 4^th causes of action are asserted against City.  The 5^th and 6^th causes of action are asserted against all Defendants.  The 7^th cause of action is asserted against Defendant Toro Enterprises, Inc., Jerry Hannigan, Sean Castillo, Eileen D. Kenny individually and as successor trustee of the Helen J. Griffen Trust, and the Helen J. Griffen Trust.  

B.    Cross-Complaint

On July 3, 2019, Defendant/Cross-Complainant City of Burbank (“City”) filed a cross-complaint against the Helen J. Griffen Trust for: (1) indemnification; (2) apportionment of fault; and (3) declaratory relief.  On July 2, 2020, City filed an Amendment to the Cross-Complaint naming Eileen D. Kenny, individually and as successor trustee of the Helen J. Griffen Revocable Trust dated August 22, 1996 as Doe 1. 

On May 20, 2021, the default of Eileen D. Kenny, individually and as successor trustee of the Helen J. Griffen Revocable Trust dated August 22, 1996. 

On July 19, 2021, City dismissed without prejudice the Helen J. Griffen Trust only from the cross-complaint.

C.    Relevant Background and Motion on Calendar

On January 24, 2023, the Court denied Defendant Kleinfelder, Inc.’s motion for summary judgment, or, alternatively, for summary adjudication. 

On January 25, 2023, Plaintiffs filed a Notice of Partial Settlement as to City only. 

On February 6, 2023, City filed a Notice of Settlement and Application for Determination of Good Faith Settlement between Plaintiff and City pursuant to CCP § 877.6(a)(2). 

On March 3, 2023, Kleinfelder filed a motion contesting the application for determination for good faith settlement.

On March 24, 2023, City filed an opposition to the motion contesting the application for determination for good faith settlement.  On March 24, 2023, Plaintiffs also filed an opposition to the motion contesting the application for determination for good faith settlement.

On March 29, 2023, Kleinfelder filed a reply brief.

LEGAL STANDARD

In Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499, the California Supreme Court articulated several factors to be considered in determining whether a settlement is in good faith within the meaning of section 877.6:

[T]he intent and the 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 that he would if he were found liable after trial.  Other relevant considerations include the financial conditions and insurance policy limits of the 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.

(Tech-Bilt, supra, 38 Cal.3d at 499.)

         To determine whether a settlement was in “good faith” the judge should inquire as to whether the amount of the settlement is “within the reasonable range” of the settling defendant’s proportional share of comparative liability for the plaintiff’s injuries.  (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 872; City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262.)  Generally, a settlement will be found to be in good faith unless the objecting defendant shows it to be “grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor’s liability to be.”  (Abbott Ford, supra, 43 Cal.3d at 872.)  That is, a party opposing a good faith settlement must demonstrate that “the settlement is so far ‘out of the ballpark’ in relation to” the factors discussed above that it is “inconsistent with the equitable objectives of the statute.”  (Tech-Bilt, supra, 38 Cal.3d at 499-500.)

“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).)

DISCUSSION

City filed an application for determination of good faith settlement, to which Kleinfelder filed a motion contesting the application.

In making its determination on the good faith nature of the settlement, the Court evaluates the Tech-Bilt factors.   

1.     Amount Paid in Settlement and Allocation of Settlement Proceeds Among Plaintiffs

Plaintiff has agreed to file a dismissal with prejudice as to City in exchange for payment in the amount of $142,500.  (App. at p.6.)  According to Ashlee P. Clark, counsel for City, this is a rough approximation of Plaintiff’s known medical and other specials to date.  (Clark Decl. re App., ¶5.)  Ms. Clark states that City has agreed to pay this amount in exchange for a complete release of all claims against it, including a Civil Code, § 1542 and an order dismissing City with prejudice from the lawsuit.  (Id.) 

The SAC alleges the 1^st to 6^th causes of action against City.  (The 7^th cause of action for loss of consortium is the only cause of action brought by both Plaintiffs, but this cause of action is not asserted against City.)  As the claims against City are brought only by Plaintiff Tim Simonec, there would be no allocation of the settlement proceeds among various plaintiffs. 

This factor is not contested.

2.     Rough Approximation of Plaintiff’s Total Recovery and Settlor’s Proportionate Liability

Kleinfelder argues that City’s settlement is grossly disproportionate in light of the fact that City was solely responsible for determining areas that needed repair in relation to the Sidewalk Repair Project.  Kleinfelder argues that City defined the criteria to determine areas needed for repair and City made the final decision on what areas needed repair/replacement.  Kleinfelder argues that its sole role with City was to act as a liaison. 

This was the subject of Kleinfelder’s motion for summary judgment or, alternatively, summary adjudication.  The Court found that there were triable issues of material fact regarding whether Kleinfelder had a duty to inspect the subject sidewalk where the accident occurred and whether Kleinfelder’s agent had a duty to conduct inspections with City and Toro agents.  At the summary judgment stage, there were triable issues of material fact regarding whether Kleinfelder was solely retained as a liaison service or if it had additional duties of conducting inspections of the sidewalks in certain zones, as opposed to whether this was City’s sole duty.  Moreover, a determination pursuant to CCP § 877.6 bars only claims of “equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.”  (CCP § 877.6(c).)  To the extent that the City and Kleinfelder wanted to allocate liabilities for contractual duties they had the freedom to determine that pursuant to their contract.

Kleinfelder argues that Plaintiff’s past medical treatment, future medical treatment, loss of future income, and general damages will fall between $500,000 to $1,000,000, such that City’s settlement amount of $142,500 is not within the reasonable range of settlement based on City’s sole responsibility for determining areas of repair.  Kleinfelder argues that Plaintiff accumulated $211,853.07 in billed medical expenses and he will continue to require future treatment for his neurological decline and continued complaints of pain.  (Balatero Decl., ¶8, Ex. G.)  It also argues that Plaintiff is self-employed and had an average monthly income in 2018 of $35,000, as well as $170,000 in approximate damages related to modifications to his current residence due to his injuries.  (Id.) 

In opposition, City argues that the subject sidewalk and curb existed in its current condition since 1928 and that it made no alterations since the ADA became law in 1990.  (City Opp. at p.9.)  City argues that Kleinfelder was hired to act as City’s agent to inspect the sidewalks in relation to the 2013 project and that it was Kleinfelder’s duty to identify and report to City which areas needed to be repaired.  (Id. at p.10; Clark Decl. re Opp. at ¶8, Ex. 3 [Omar Moheize Depo.].)  Next, City argues that it did not receive any complaints, claims, or lawsuits about the subject area until Plaintiff’s incident in October 2018, such that City lacked notice of any dangerous condition.  (Clark Decl. re Opp. at ¶11, Ex. 6 [John Molinar Decl. in support of motion for summary judgment/adjudication].)  City also argues that it has design and discretion immunities. 

According to City, Plaintiff’s damages include injuries (contusions to right hip, right shoulder, ankle, and elbow; a hematoma to right hip; and strain of muscles and tendons of right shoulder rotator cuff), medical expenses, and loss of earning.  (Clark Decl. re Opp. at ¶12, Ex. 7 [Pl.’s Further Response to FROG, set one].)  City argues that Plaintiff’s injuries were relatively minor and included a hematoma, shoulder strain, and some abrasions, and that Plaintiff’s treating neurologist, Dr. Roy Ashford, stated that the incident did not cause an exacerbation of Plaintiff’s underlying neurological conditions.  (Id., ¶¶14, 16, Exs. 9 and 11.)  Thus, City argues that given the limited damages in this action, the settlement is a fair and appropriate amount to compensate Plaintiff.  City argues that Plaintiff is a Medicare subscriber and Medicare’s October 30, 2019 Conditional Payment Letter showed only $30,012.69 in past medical charges, of which Medicare only sought $5,885.36 in reimbursement.  (Clark Decl. re Opp. at ¶15, Ex. 10.)  With respect to Plaintiff’s loss of income, City argues that this was mostly during the pandemic when music for movies was on hiatus and there is no current evidence that Plaintiff has had a decline or withdrawal from projects during the claimed period.  City estimates that Plaintiff’s total damages are approximately $250,000, such that City’s $142,500 settlement amount is appropriate as it is over 50% of Plaintiff’s known damages and City’s defenses.

In his opposition, Plaintiff argues that Kleinfelder’s liability is not in question since the scope of Kleinfelder’s services included, among other things, construction inspection services and that Kleinfelder had undertaken the role of inspection streets for trip hazards.  Plaintiff believes his damages to be higher than City’s estimated $250,000, but Plaintiff states that he understands this is a disputed claim based on the facts known the parties and he considers City’s offer to be fair and reasonable.  (Pl.’s Opp. at p.10.)  Plaintiff also argues that he offered settlement offers to both City and Kleinfelder—$142,500 to City, which City accepted, and a lower amount of $125,000 to Kleinfelder. 

The Court finds that in light of the contested liability between the parties, the settlement amount of $142,500 by City is fair, reasonable, and not outside the ballpark in relation to the factors discussed. 

Kleinfelder and City acknowledge that City is self-insured.  Kleinfelder argues that City has not disclosed the terms of its insurance policy limits.  City argues that the lack of a definable policy does not mean that City is in a position to spend unfettered amounts of taxpayer dollars and that Kleinfelder’s own insurance policy is for up to $1,000,000.  Although City has not provided the exact terms of its insurance policy, City’s financial condition and insurance policy limits are additional factors that the Court may consider in ruling on this type of motion.  As stated above, the Court finds that the $142,500 settlement amount to be a reasonable amount payable by City to settle its claims with Plaintiff. 

Based on the arguments and evidence available to the Court in connection with the motion, the Court finds that the proposed settlement constitutes a rough approximation of Plaintiff’s recovery and is reasonably proportionate to City’s liability.  In making its determination on this issue, the Court recognizes that it is acceptable for settlors to pay less in settlement than if they were found liable after trial and also takes into account the information available to the parties at the time of negotiations.  Kleinfelder has not shown that the settlement was grossly disproportionate or “so far out of the ballpark” that the Court should grant this motion to contest or deny the application for good faith settlement determination. 

3.     Other Factors: Financial Condition and Insurance Policy Limits of Settlor, and Existence of Collusion, Fraud, or Tortious Conduct

Kleinfelder argues that City has not disclosed the actual settlement agreement to the Court or Kleinfelder, such that the exact terms of the settlement are unknown.  Kleinfelder argues that this presents a hint of collusion between Plaintiff and City. 

However, the lack of attaching the settlement agreement is not detrimental to finding whether or not the settlement was made in good faith.  In opposition, City provides a copy of the executed settlement agreement to dispel these issues.  (Clark Decl. re Opp. at ¶14, Ex. 1 [Settlement Agreement and Release of All Claims].)  City argues there was no evidence of collusion as the parties reached the settlement after years of litigation, investigation/discovery, and following a private mediation with Judicate west. 

Kleinfelder has not shown the existence of collusion, fraud, or tortious conduct between Plaintiff and City.  As such, this factor weighs in favor of approving the application for good faith determination. 

4.     Conclusion

The Court finds the Tech-Bilt factors have been met and determines that the settlement entered between Plaintiff and City was entered in good faith and is fair. 

CONCLUSION AND ORDER

Defendant Kleinfelder Inc.’s motion contesting Defendant City of Burbank’s application for determination of good faith settlement is denied.  Defendant City of Burbank’s application for determination of good faith settlement is granted.

Defendant City of Burbank shall give notice of this order.