Judge: Lisa R. Jaskol, Case: 21STCV32789, Date: 2024-01-02 Tentative Ruling
Case Number: 21STCV32789 Hearing Date: January 2, 2024 Dept: 28
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On September 2, 2021, Plaintiffs Iskuhi Keshishyan, individually and as the successor-in-interest to and administrator of the Estate of Khatchik Abramovich Kechichian, Nvard Keshishyan, and Abraham Keshishyan filed this action against Defendants Haroutyun Keshishyan aka Haroutyun King Cobra Keshishyan; Haroutyun Keshishyan dba King Cobra Construction Co.; King Cobra Construction PC; PDS Construction Inc.; Scimouni and Boghosian Family Trust, a California Trust by and through Henry Raymond Scimouni and Sonia Boghosian, Trustees (the “Trust”); Henry Raymond Scimouni (“Scimouni”); Sonia Boghosian (“Boghosian”); and Does 1 to 50 for wrongful death, negligence, negligence per se, negligent hiring/retention/supervision/training, premises liability, loss of consortium, negligent infliction of emotional distress, and survival action.
On February 15, 2022, the Court sustained in part the demurrer of Defendants Trust, Scimouni, and Boghosian to the complaint. The Court sustained the demurrer with leave to amend “except as to the Scimouni and Baghosian Family Trust, and as to the 3rd and 7th causes of action, as to which the demurrer is sustained without leave to amend.” The Court dismissed the Trust from the action with prejudice.
On March 7, 2022, Plaintiffs filed a first amended complaint against for wrongful death, negligence, negligent hiring/retention/supervision/training, premises liability, loss of consortium, and survival action.
On December 5, 2023, Scimouni, Boghosian, and the Trust (“Moving Defendants”) filed an application for determination of good faith settlement. No opposition has been filed.
Trial is currently scheduled for February 21, 2024.
PARTIES’ REQUEST
Moving Defendants request that the Court find that the settlement between Plaintiffs and Moving Defendants is in good faith.
LEGAL STANDARD
Code of Civil Procedure section 877.6, subdivision (a)(2), states that “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. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. The notice, application, and proposed order shall be given by certified mail, return receipt requested, or by personal service. Proof of service shall be filed with the court. Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. If none of the nonsettling parties files a motion 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. . . .”
“The issue of the good faith of a settlement may be determined by the court on the basis of 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).)
“The party asserting the lack of good faith shall have the burden of proof on that issue.” (Code Civ. Proc., § 877.6, subd. (d).)
In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499 (Tech-Bilt), the California Supreme Court identified the following nonexclusive factors courts must consider in determining if a settlement is in good faith under section 877.6: “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. 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.”
The evaluation of a settlement is “made on the basis of information available at the time of settlement.” (Tech-Bilt, supra, 38 Cal.3d at p. 499.)
DISCUSSION
A. The complaint
On June 29, 2020, Plaintiffs’ decedent Khatchik Abramovich Kechichian, a day laborer, reported for work at a construction site where Defendants’ home was being repaired, remodeled, or refurbished. Defendants employed the decedent to perform construction work and services for Defendants at the construction site. Defendants owned, possessed, constructed, developed, designed, engineered, maintained, inspected, repaired, provided employees and/or services to, and/or otherwise controlled the construction site.
Within about two hours after starting work, Plaintiffs’ decedent fell from the second floor and died after being left alone to work in the unsafe and dangerous construction site without management and without proper safety equipment in place to prevent such construction site accidents.
B. Plaintiffs’ total recovery and settlors’ proportionate liability
Plaintiffs and Moving Defendants have agreed to settle the case for $150,000.00. Moving Defendants argue they cannot be found liable to Plaintiffs under the Privette doctrine because they were homeowners who hired an independent contractor whose negligence caused decedent’s death. (See Privette v. Superior Court (1993) 5 Cal.4th 689, 691-692 [common law doctrine of peculiar risk—under which landowners were vicariously liable for injuries to third parties resulting from the negligence of independent contractors performing inherently dangerous work on the landowners’ property—did not apply to injuries sustained by the independent contractor’s own employees].) Moving Defendants contend that the decedent did not work for them but instead worked for the independent contractor. Therefore, they argue, their proportionate liability is zero.
This factor supports a finding of good faith.
C. Allocation of settlement
Plaintiffs will receive the entire settlement. This factor supports a finding of good faith.
D. Financial considerations
Moving Defendants assert that they have no insurance coverage for Plaintiffs’ claims and are paying the settlement amount out of pocket. They do not provide information about their financial condition. This factor is neutral.
E. Collusion or fraud
The Court has seen no evidence of fraud or collusion. This factor supports a finding of good faith.
F. Weighing the Tech-Bilt factors
Based on the Tech-Bilt factors discussed above, and in the absence of any motion to contest the good faith of the settlement, the Court finds the proposed settlement was made in good faith. The Court grants the motion.
CONCLUSION
The Court GRANTS the motion for a determination that the settlement between Plaintiffs Iskuhi Keshishyan, Nvard Keshishyan, and Abraham Keshishyan and Defendants Henry Raymond Scimouni, Sonia Boghosian, and Scimouni and Boghosian Family Trust was made in good faith. The Court dismisses all pending and future claims against Defendants Henry Raymond Scimouni, Sonia Boghosian, and Scimouni and Boghosian Family Trust by the parties served with this motion (to the extent those claims arise from the facts giving rise to this case), including cross-complaints for equitable indemnity.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.