Judge: Keri G. Katz, Case: 37-2021-00053513-CU-PO-CTL, Date: 2023-11-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - November 02, 2023

11/03/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  PI/PD/WD - Other Motion Hearing (Civil) 37-2021-00053513-CU-PO-CTL DING VS GOODFELLOW [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendant City of San Diego's motion to contest Defendants/Cross-Complainants Kathleen Ann Goodfellow and Thomas Fran Tourone's application for good faith settlement is DENIED.

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. Settling Parties Goodfellow and Tourone meet this burden via evidence of a settlement between Plaintiffs and Settling Parties whereby Settling Parties and/or their insurers will pay to Plaintiffs the sum of $320,000.00. As Settling Parties meet their burden, the burden shifts to contesting party City of San Diego to show that the settlement was not made in good faith. Fisher, 103 Cal.App.3d at 447. The court finds the City fails to meet this burden.

The first argument the City raises is based on the City's express indemnity rights. However, '[i]t is well-established a good faith settlement 'would not preclude an indemnity action based on an express indemnity agreement.' ' Willdan v. Sialic Contractors Corp. (2007) 158 Cal.App.4th 47, 55, citing Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1032. As Bobrow/Thomas & Associates v. Superior Court (1996) 50 Cal.App.4th 1654 explains, [a] trial court's decision that a settlement was made in good faith . . . does not absolve a settling defendant from a subsequent indemnification claim in all circumstances. For example, when the settling defendant has previously entered into a contractual agreement to indemnify a nonsettling defendant, a settlement-even if in good faith-does not relieve the settling defendant from performing the contractual indemnification obligations. [Citation.]' (Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1018-1019 [269 Cal.Rptr. 720, 791 P.2d 290], fns. omitted (Bay Development).) Bobrow/Thomas, 50 Cal.App.4th at 1660.

The court is not persuaded by the City's reliance on the result in Bobrow/Thomas. Unlike the circumstances in Bobrow/Thomas, there is no evidence of an agreement between Plaintiffs and the Settling Parties whereby Plaintiffs are dropping allegations that might lead to Settling Parties' derivative liability so as to eliminate the City's express indemnity rights against Settling Parties. The City's arguments that Plaintiffs' injuries are indivisible is of no moment because the dispositive issue in this case is the absence of such an agreement. A described in Bobrow/Thomas, Bay Development and cases cited therein assure us that BTA's contractual indemnification rights, if any exist, survived Sutter's [Plaintiff's] settlement of its claims against Otto and PFI [Settling Parties] and the Calendar No.: Event ID:  TENTATIVE RULINGS

3015073  6 CASE NUMBER: CASE TITLE:  DING VS GOODFELLOW [IMAGED]  37-2021-00053513-CU-PO-CTL court's confirmation of the settlement. We are less sure, however, whether Sutter's narrowing of its theory of recovery has effectively accomplished what settling the claims could not alone have done. With the narrowed claim, according to Otto, if Sutter recovers anything against BTA, it will do so solely because of BTA's design negligence, and BTA will be unable to obtain indemnification from Otto or PFI.

Otto suggests that it and PFI have 'indemnified' BTA in advance by requiring Sutter to drop any allegations that might lead to BTA's derivative liability. Otto maintains that BTA cannot ask for more than to have Otto and PFI pay in advance for any such claims and eliminate them from Sutter's lawsuit.

Bobrow/Thomas, 50 Cal.App.4th at 1660–1661.

Without establishing that the settlement agreement in this case has the same effect as the settlement agreement in Bobrow/Thomas, the City fails to demonstrate that a good faith determination would eliminate the City's express indemnity claims against the Settling Parties so as to establish grounds for denial of the Settling Parties' application on this basis.

The City also argues that the settlement does not reflect Settling Parties' proportionate liability. The only evidence the City submits is the declaration of Deputy City Attorney Daniela N. Loomis, the City's attorney in this case, who provides a summary of the facts giving rise to Plaintiffs' claims and attaches as exhibits a copy of the Permit for Use of Hidden Anchorage Waterski Area, a copy of Progressive Casualty Insurance Company's denial of the City's tender and a copy of Plaintiffs' operative First Amended Complaint. The court finds this evidence insufficient to meet Settling 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 Settling Parties' proportionate share of liability for Plaintiffs' alleged damages.

The court is not persuaded by the City's reliance on Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337. 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. 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3015073  6 CASE NUMBER: CASE TITLE:  DING VS GOODFELLOW [IMAGED]  37-2021-00053513-CU-PO-CTL 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.

Under these authorities, absent evidence from the City sufficient to establish the amount of the settlement as lacking in good faith, there is no further burden on Settling Parties.

The City also relies on TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159 which requires that 'a court not only look[] at the alleged tortfeasor's potential liability to the plaintiff, but .

. . also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury.' TSI Seismic, 149 Cal.App.4th at 166. However, the City fails to submit any evidence quantifying the relative culpability of Settling Parties vis-à-vis the City or any other party. Absent such evidence, the City fails to meet its burden of establishing the settlement as lacking in good faith under the considerations of TSI Seismic.

The City raises the argument that the proposed settlement is collusive, but fails to cite to any evidence to support such argument.

Based on the foregoing, the court finds the settlement to be in good faith. The court finds that the amount of the settlements is within the reasonable range of Settling Parties' proportionate share of comparative liability for Plaintiffs' claimed injuries. Tech-Bilt, 38 Cal.3d at 499. This determination bars any other joint tortfeasor or co-obligor from any further claims against Kathleen Ann Goodfellow and Thomas Fran Tourone for equitable comparative contribution or partial or comparative indemnity based on comparative negligence or comparative fault. CCP §877.6.

The issues the parties raise as to the merits and/or viability of the City's express indemnity claims against Settling Parties are beyond the scope of this motion. As set forth above, such claims survive following the good faith determination.

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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