Judge: Keri G. Katz, Case: 37-2020-00015581-CU-CD-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - December 14, 2023

12/15/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Construction Defect Motion Hearing (Civil) 37-2020-00015581-CU-CD-CTL EQUITY BUILDERS INC VS TONY BEDALOV INC [E-FILE] CAUSAL DOCUMENT/DATE FILED:

Cross-Defendant/Cross-Complainant Davis Ink Ltd.'s motion for determination of good faith settlement is GRANTED. CCP § 877.6.

Preliminarily, the court exercises its discretion in favor of considering opposing party Cross-Defendant Bejan Arfaa's late-filed and late-served opposing papers.

A settling party's burden in applying for a good faith determination is to prove there has been a settlement. Fisher v. Superior Court (1980) 103 Cal.App.3d 434, 447. See also, City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261-1262. Davis Ink meets this burden via evidence of a settlement with Defendant/Cross-Complainant Tony Bedalov, Inc. whereby Davis Ink, via its insurer, will pay to Bedalov $52,500.00. As Davis Ink meets its burden, the burden shifts to opposing parties Cross-Defendants Equity Builders, Inc. and Joseph Paul Archambault and Cross-Defendant Bejan Arfaa to show that the settlement was not made in good faith. Fisher, 103 Cal.App.3d at 447. The court finds opposing parties fail to meet their burden.

As evidence Equity Builders relies solely on two declarations from JohnPaul Salem, Equity Builders' attorney in this case. Attorney Salem's original declaration provides a brief background of the underlying facts, a summary of discovery completed and pending, including Equity Builders' attempts to schedule the deposition of the Davis Ink Person Most Knowledgeable, and a comparison of Bedalov's total claimed damages of $845,346.63 with the amount of Davis Ink's settlement. Attorney Salem's supplemental declaration provides details regarding the logistics of the scheduling of the Davis Ink PMK deposition and refers to an unnamed 'new witness.' Similarly, the only evidence Arfaa submits is the Declaration of Clayton S. Grant, Arfaa's counsel in this case. Attorney Grant's declaration provides a brief background of the underlying facts, as well as a summary of procedural events in this case including Bedlov's filing of its Second Amended Cross-Complaint, Davis Ink's discovery responses and Davis Ink's filing of papers related to the motion now pending before this court. The court finds the evidence opposing parties rely on insufficient to meet opposing parties' burden of establishing that the amount of the settlement is so far 'out of the ballpark' as to be 'grossly disproportionate to what a reasonable person, at the time of settlement, would estimate the settling defendant's liability to be.' Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499. Critically absent is any evidence as to Davis Ink's proportionate share of liability for Bedalov's claimed damages. Equity Builders' argument that Davis Ink is primarily responsible for Bedalov's past delay damages and Equity Builders' other arguments as to Davis Ink's 'exposure' are without evidentiary support and insufficient to meet Equity Builders' burden on this motion. Significantly, Equity Builders fails to submit any evidence establishing Davis Ink's exposure to Bedalov's claimed construction defect damages.

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3038958  4 CASE NUMBER: CASE TITLE:  EQUITY BUILDERS INC VS TONY BEDALOV INC [E-FILE]  37-2020-00015581-CU-CD-CTL The court is not persuaded by opposing parties' criticisms of Davis Ink's evidence, or by opposing parties' arguments as to Davis Ink's burden of proof. Under the authorities set forth herein, it is opposing parties who bear the burden of proof on this motion. Opposing parties' reliance on Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337 is misplaced. As Mattco explains, . . . the party asserting the lack of good faith has the burden of proof on that issue. (§ 877.6, subd. (d).) Therefore, in bringing the motion for good faith settlement, Helmer & Neff were not compelled to make a showing as to their proportionate liability. However, after Young attacked the settlement as lacking in good faith, Helmer & Neff were required to file counteraffidavits (§ 877.6, subd. (b)) to make an evidentiary showing that the settlement was 'in the ballpark.' In the absence of such a showing by Helmer & Neff, as the parties seeking approval of the good faith settlement, there is 'no substantial evidence to support a critical assumption as to the nature and extent of [the] settling [parties'] liability[.]' (Toyota Motor Sales U.S.A., Inc., supra, 220 Cal.App.3d at p. 871.) Mattco Forge, 38 Cal.App.4th at 1350, fn. 6. The other case opposing parties rely on, City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, contains a similar analysis.

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court.

At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients' resources. It must also be remembered that Tech-Bilt was decided on a contested basis. We are unaware of any reported decision which has reversed an uncontested good faith determination and we, therefore, conclude that only when the good faith nature of a settlement is disputed, it is incumbent upon the trial court to consider and weigh the Tech-Bilt factors. 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.

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. (Fisher v. Superior Court (1980) 103 Cal.App.3d 434, 447 [163 Cal.Rptr. 47]; § 877.6, subd. (d).) 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. We, therefore, conclude that the motion was sufficient in this case in that a prima facie showing of a good faith settlement was set forth by settlor.

City of Grand Terrace, 192 Cal.App.3d at 1261–1262.

Thus, absent evidence from opposing parties sufficient to establish the amount of the settlement as lacking in good faith, there is no further burden on Davis Ink. Addressing the other authority Equity Builders relies on, the evidentiary deficiencies at issue in Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, are not present in this case.

Opposing parties also raises arguments as to the absence of an allocation. However, neither Alcal Roofing & Insulation v. Superior Court (1992) 8 Cal.App.4th 1121 nor Regan Roofing Co. v. Superior Ct.

(1994) 21 Cal. App. 4th 1685 require an allocation for a finding of good faith in this case. Both Alcal and Regan Roofing involve instances where the settling parties included an allocation in their settlement.

Thus, while both Alcal and Regan Roofing discuss the need for an allocation, neither examines this issue in the context presented on this motion – where the parties have not included an allocation in their settlement. Instead, these cases both focus on the propriety and evidentiary basis for the allocations made by the settling parties. Absent an allocation of Davis Ink's settlement with Bedalov, there is no basis to require an allocation for a finding of good faith. See also, Erreca's v. Superior Court (1993) 19 Calendar No.: Event ID:  TENTATIVE RULINGS

3038958  4 CASE NUMBER: CASE TITLE:  EQUITY BUILDERS INC VS TONY BEDALOV INC [E-FILE]  37-2020-00015581-CU-CD-CTL Cal.App.4th 1475.

To the extent opposing parties rely on evidence of Bedalov's claims for damages, '[a] plaintiff's claims for damages are not determinative in finding good faith.' West v. Superior Court (1994) 27 Cal.App.4th 1625, 1636. Also, a settler should pay less in settlement than if found liable after trial. Tech-Bilt, 38 Cal.3d at 499. To the extent opposing parties raise arguments as to the insurance policy limits of Davis Ink's insurance policy, opposing parties fail to provide authority holding that such evidence precludes a finding good faith. As to Arfaa's other arguments, the court finds Arfaa fails to establish any basis for a finding of collusion, fraud, or tortious conduct.

Equity Builders again seeks a continuance to conduct discovery. In its supplemental opposition Equity Builders argues that it took the Davis Ink PMK deposition 'to glean information regarding BEDALOV's alleged injuries and damages.' Equity Builders seeks additional unspecified discovery for this same purpose. Equity Builders fails to establish how anyone other than Bedalov would have information regarding Bedalov's claimed damages or how the additional discovery Equity Builders now seeks would negate a finding of good faith. Moreover, as Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 explains 'practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.' Tech-Bilt, 38 Cal.3d at 499. The court is not persuaded by Equity Builders' reliance on City of Grand Terrace or on Equity Builders' arguments as to the scheduling of the Davis Ink PMK deposition. None of the authorities Equity Builders relies on allows for another continuance and Equity Builders' request for a continuance is denied.

Based on the foregoing, the court finds the settlement to be in good faith. The court finds that the amount of the settlement is within the reasonable range of Davis Ink's proportionate share of comparative liability for Bedalov's claimed injuries. Tech-Bilt, 38 Cal.3d at 499. This determination bars any other joint tortfeasor or co-obligor from any further claims against Davis Ink Ltd. for equitable comparative contribution or partial or comparative indemnity based on comparative negligence or comparative fault. CCP §877.6.

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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