Judge Kerry Bensinger, Case Number: 21STCV10834, Date: 2023-05-10 Tentative Ruling

On March 19, 2021, Plaintiff, Christina T. Perez, initiated this premises liability action against Defendants, Pi Kappa Alpha[1], Fraternity & Sorority Services, Inc (“F&S Services”)., B&B Management Services, Inc. (“B&B”), California Gamma Chapter House Association of Phi Deltha Theta (“California Gamma Chapter House”), and Does 1 to 50, for injuries Plaintiff sustained when the top step of the exterior staircase of her apartment building crumbled under her foot and caused Plaintiff to fall to the bottom of the stairs. On June 2, 2021, Plaintiff amended the complaint to name West Range Corporation (“Settling Defendant”) as Doe 1. Settling Defendant is the owner of the property. California Gamma Chapter House is the tenant and sublessor of the property. B&B and F&S Series are entities related to the management of the property. Settling Defendant answered the complaint of August 23, 2021. No other defendant has filed an answer.

On August 2, 2023, Settling Defendant filed a Notice of Settlement and this Application for Determination of Good Faith Settlement.

“Any party to an action in which it is alleged that two or more parties are joint tortfeasors or coobligors on a contract shall be entitled to a hearing on the issue of the good faith settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or coobligors ….”¿ (Code of Civ. Proc., § 877.6.)¿ Good faith settlements further two sometimes competing policies: (1) the equitable sharing of costs among the parties at fault, and (2) the encouragement of settlements.¿ (Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1487.)¿¿

The Court must consider several factors 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 than he would if he were found liable after a trial.”¿ (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499 (Tech-Bilt).)¿¿“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.” ¿(Id.)¿¿¿

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, supra, 38 Cal.3d at p. 499.) ¿“[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.” ¿(TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166.)¿ “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.”¿ (Id.)¿¿

In City of Grand View Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:¿¿

“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.”

The notice, application, and proposed order must be served by certified mail, return receipt requested, or by personal service. If the nonsettling parties do not file a motion challenging the settlement within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement.¿ (Code of Civ. Proc., § 877.6, subd. (a)(2).)¿¿

Here, Settling Defendant served this Application on specially appearing defendant California Gamma Chapter House[2] and Plaintiff by certified mail on August 2, 2023—more than 25 days before this hearing. Settling Defendant has not served Pi Kappa Alpha, F&S Services, nor B&B with notice of this application and settlement. The Application is uncontested. Settling Defendant has satisfied the procedural requirements.[3]

After taking Plaintiff’s deposition, counsel for the parties engaged in informal settlement discussions. On April 14, 2023, Settling Defendant served Plaintiff with an offer to compromise. Under the terms of the agreement, Settling Defendant agrees to pay Plaintiff the sum of $25,000 in exchange for a release and waiver of claims.¿

Based on the foregoing, the Court concludes the settlement between Plaintiff Christina T. Perez and Defendant West Range Corporation was made in good faith.¿ The unopposed Application for Determination of Good Faith Settlement is GRANTED.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

On July 14, 2023 and July 17, 2023, Plaintiff filed Motions for an Order for Publication for Service Via Secretary of State as to Defendants, California Gamma Chapter House Association of Phi Delta Theta, B&B Management Services, Inc. and Fraternity & Sorority Services, Inc.

The motions were captioned and filed improperly. Instead of filing “motions,” Plaintiff must e-file applications for publication for service by secretary of state. The applications and proposed orders must be filed on pleading paper and in a pleading format. Once e-filed, the applications and proposed orders will be forwarded to the appropriate department for review and adjudication.

[1] Dismissed on June 21, 2023.

[2] California Gamma Chapter House filed a motion to dismiss on March 3, 2023.

[3] Failure to serve nonparties is not ground for denying a § 877.6 motion. (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group), ¶ 12:860.1.) However, Settling Defendant may still be exposed to liability. “[D]ue process requires notice to other joint tortfeasors who are not presently parties to the action but whose rights may be affected by a “good faith” determination (because § 877.6(c) bars indemnity claims of party and nonparty joint tortfeasors; see ¶ 12:926). [Gackstetter v. Frawley (2006) 135 CA4th 1257, 1273, 38 CR3d 333, 345-346 (citing text)] (emphasis in original).” (Weil & Brown, Cal. Prac. Guide Civ. Pro. Before Trial (The Rutter Group), ¶ 12:860.) Here, Settling Defendant has not served Pi Kappa Alpha, F&S Services, and B&B with notice of this application.