Judge Lee S. Arian, Case Number: 23STCV03465, Date: 2024-01-11 Tentative Ruling

This is an action arising from Plaintiff being struck by a motor vehicle on March 10, 2022, while crossing an intersection. On February 15, 2023, Plaintiff Isidro Vera-Cruz (“Plaintiff”) filed a Complaint against Defendants City of Los Angeles (“City”), Jordan Soobaskoonnee (“Soobaskoonee”), Nahom Tassew (“Tassew”), and Does 1 through 100, alleging causes of action for: (1) Dangerous Condition of Public Property and Negligence and (2) Negligence.

On April 27, 2023, Defendant Tassew filed an Answer to the Complaint. On April 27, 2023, Defendant Tassew also filed a Cross-Complaint against Defendants City, Soobaskoonnee, and Roes 1 to 10, alleging causes of action for: (1) Apportionment of Fault, (2) Indemnity, and (3) Declaratory Relief.

On October 6, 2023, Defendant City filed a Cross-Complaint against Defendants Soobaskoonnee, Tassew, and Roes alleging causes of action for: (1) Indemnification, (2) Apportionment of Fault, and (3) Declaratory Relief.

On July 11, 2023, the Court granted the Application for Determination of Good Faith Settlement filed by Defendant Soobaskoonnee.

On November 15, 2023, Defendant Tassew filed an Application for Determination of Good Faith Settlement (the “Application”). Defendant Tassew indicates that he reached a settlement with Plaintiff and applies to the Court for a good faith settlement determination pursuant to California Code of Civil Procedure, Section 877.6.

In support of the Application, counsel for Defendant Tassew states that “Defendant Nahom Tassew denies the allegations of negligence but in order to buy his peace he has agreed to settle the claims against him for $15,000.00 which is the full amount of his available liability insurance policy limits.” (Garretty Decl., ¶ 5; Exhibit A.) Counsel also declares that the settlement agreement between Plaintiff and Defendant Tassew “was made at arms distance length and there was no collusion, fraud, or tortious misconduct for the purpose of injuring the interests of the non-settling parties.” (Garretty Decl., ¶ 6.)

On December 12, 2023, Defendant City filed and served the instant motion to contest the good faith settlement between Defendant Tassew and Plaintiff (the “Motion”). Defendant City seeks an order denying the Application.

On December 27, 2023, Defendant Tassew filed and served an opposition to the Motion. No reply brief has been filed. Any reply brief was required to have been filed and served by January 4, 2024, which is at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

“Any party to an action in which 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 or other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided by subdivision (d) of Section 1005.” (Code Civ. Proc., § 877.6, subd. (a)(1).) “In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order.” (Code Civ. Proc., § 877.6, subd. (a)(2).) “The application shall indicate the settling parties, and the basis, terms, and amount of the settlement.” (Ibid.) “The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service.” (Ibid.)

“The issue of the good faith of a settlement may be determined by the court on the basis of the affidavits served with the notice of hearing, and any counteraffidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.” (Code Civ. Proc., § 877.6, subd. (b).) “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., § 877.6, subd. (c).)

When determining whether a settlement was made in good faith, the following factors are considered: (1) a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.)

“The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor’s liability to be.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1262 [citation omitted].) “[A] good faith settlement does not call for perfect or even nearly perfect apportionment of liability.” (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 875 [internal quotations omitted].) “[O]nly 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.” (City of Grand Terrace v. Superior Court, supra, 192 Cal.App.3d 1251, 1261.) “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.” (Ibid.)

Defendant City contends that the Application should be denied because it fails to follow the procedural requirements of Code Civ. Proc., § 877.6, subd. (a)(2). Defendant Tassew asserts that the Application is not procedurally defective.

The Court finds that the Application is procedurally defective. While the Application was filed with the Court, and thereby notice of settlement was given to the Court, Defendant Tassew did not serve Defendants City or Soobaskoonnee with notice of settlement or the Application. (See Application, p. 9:1-9.) Defendant Tassew argues that Defendant Soobaskoonee is not a party to this action; however, the Court finds that Defendant Soobaskoonee has not been dismissed from this action and is therefore still a party to this action. Here, the proof of service as to the Application indicates that Defendant City was only served with a Proposed Order Approving Defendant Tassew’s Petition for Good Faith Settlement. (Ibid.)

Thus, the Court finds that the Application is procedurally defective as neither Defendant City nor Defendant Soobaskoonee was served with the Application. The Application is therefore DENIED WITHOUT PREJUDICE.

Even if the Court found the Application procedurally compliant, the Court would currently be unable to determine whether the settlement between Defendant Tassew and Plaintiff was made in good faith.

“[T]he party asserting lack of good faith has the burden of proof on that issue.” (City of Grand Terrace v. Superior Court, supra, 192 Cal.App.3d 1251, 1264.) “[T]he question of whether a settlement meets the statutory requirement of good faith presents an issue of fact.” (Ibid. [citations omitted].) A non-settling party may “move for a continuance of the hearing, if necessary, for the purpose of gathering facts, which could include further formal discovery, to support its statutory burden of proof as to all Tech-Bilt factors non-settlors placed in issue in order that the matter can be fully and fairly litigated.” (Ibid.)

Defendant City contends that the settlement does not meet the Tech-Bilt factors and therefore the Application should be denied. Specifically, Defendant City asserts that Defendant Tassew’s $15,000 settlement is not in the reasonable range of his proportionate share of liability for Plaintiff’s injuries. Defendant City, however, acknowledges that the parties have not completed any discovery in this matter. (Jung Decl., ¶ 6.) Plaintiff’s $10,000,000.00 claim for damages submitted to Defendant City (Jung Decl., ¶ 4; Exhibit C) and Plaintiff’s CIV-050 Statement of Damages totaling $7,250,000.00 (Jung Decl., ¶ 4; Exhibit D) do not provide the Court with sufficient information to determine whether Defendant Tassew’s settlement is within the reasonable range of his proportionate share of liability.

In sum, even if the Court were to find the Application procedurally proper, Defendant has not presented sufficient information to find that the Tech-Bilt factors were not met.

The Application is therefore DENIED WITHOUT PREJUDICE due to the procedural defects noted above.

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.

Hon. Lee S. Arian

Judge of the Superior Court