Judge: Melvin D. Sandvig, Case: 19CHCV00450, Date: 2022-08-01 Tentative Ruling

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Case Number: 19CHCV00450    Hearing Date: August 1, 2022    Dept: F47

Dept. F47

Date: 8/1/22                                                               

Case #19CHCV00450

 

MOTION FOR ORDER APPROVING GOOD FAITH SETTLEMENT

 

Motion filed on 7/20/22.

 

MOVING PARTY: Plaintiff Helen Evans

RESPONDING PARTY: Defendant Cali One Services, Inc.

 

RELIEF REQUESTED: An order approving the parties’ good faith settlement pursuant to CCP 877.6.

 

RULING: The motion is denied.

 

This action arises out of a contract between Plaintiff Helen Evans (Plaintiff) and Defendant Cali One Services, Inc. for the installation of solar panels on Plaintiff’s real property located at 16745 Osborne Street, Northridge, California 91343.  Plaintiff’s operative Second Amended Complaint contains causes of action for: (1) Breach of Contract against Cali One Services, Inc. and Does 1-100, (2) Negligence against Cali One Services, Inc., Brandon Patillo, Energon Corp. and Does 1-100, (3) Elder Abuse against all defendants, (4) Fraud against Cali One Services, Inc., Brandon Patillo, Cary Greene and Does 1-100 and (5) Negligent Misrepresentation against all defendants.

 

At the 6/20/22 hearing on Plaintiff’s Motion to Enforce Settlement, which was denied, the Court, pursuant to Plaintiff’s request, advanced the hearing on Plaintiff’s Motion for Determination of Good Faith Settlement which was scheduled for hearing on 10/12/22 to that date and continued the hearing to 7/27/22.  (See 6/20/22 Minute Order).  On 7/13/22, the Court continued the 7/27/22 hearing to 8/1/22.  (See 7/13/22 Notice of Continuance).  On 7/20/22, Plaintiff filed the instant motion seeking an order approving the parties’ good faith settlement pursuant to CCP 877.6 (served by electronic mail on 7/19/22) and a notice of the continuance of the motion from 7/27/22 to 8/1/22 (served by electronic mail on 7/20/22). 

 

The filing and service of the motion on 7/20/22 and 7/19/22, respectively, is untimely for the 7/27/22 and 8/1/22 hearing dates.  A motion must be filed and served at least 16 court days before the hearing, plus 2 additional court days for electronic service.  See CCP 1005(b); CCP 1010.6(a)(4)(B).  Despite the untimely service of the motion, Defendants Cali One Services, Inc. and Chuck Goforth have filed an opposition to the motion.  Due to the late service of the motion, the opposition was filed late on 7/27/22 which, as noted above, was the original hearing date for the motion.

 

The motion fails for various reasons.

 

First, Plaintiff has failed to provide clear notice of the relief requested.  See CRC 3.1110(a).  Plaintiff merely requests “an order approving the parties’ good faith settlement pursuant to CCP 877.6.  (See Notice of Motion, p.1:22-23).  However, Plaintiff fails to specify which parties entered what settlement.  In the body of the settlement, Plaintiff indicates that the settlement she reached is with Defendants Cary Greene and Brandon Patillo and is manifested in a signed Stipulation.  (See Memorandum of Points and Authorities, p.1:7-10).  Plaintiff then sets forth the terms of the settlement.  (Id. at p.1:11-p.2:24).  Notably, Plaintiff does not provide a copy of the signed Stipulation nor has Plaintiff provided a declaration attesting to the existence of the signed stipulation/settlement agreement.  Plaintiff then merely concludes that the settlement is reasonable under the circumstances and is in the best interest of the parties.  (Id. at p.3:1-6).

 

As noted in the opposition, the motion fails to set forth any argument or evidence in support of the factors (Tech-Bilt factors) which are to be considered in determining whether a settlement is entered in good faith.  These factors are: (1) A rough approximation of the plaintiff’s total recovery and the settler’s proportional liability; (2) The amount paid in settlement; (3) A recognition that a settler should pay less in settlement than he would were he found liable after trial; (4) The financial conditions and insurance policy limits of the settling defendant; (5) The existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants; and (6) The reasonableness of the defendant’s settlement figure.  See Tech-Bilt, Inc. (1985) 38 C3d 488, 499-500. 

 

Plaintiff has failed to provide an estimate of her probable recovery in the action.  Therefore, the Court cannot determine whether the settlement fairly represents the settling defendants’ proportional liability.  Additionally, Plaintiff has failed to provide any information regarding the settling defendants’ financial conditions and/or insurance policy limits.  Plaintiff also fails to directly address the existence or non-existence of collusion, fraud, or tortious conduct between Plaintiff and the settling defendants aimed to injure the interests of the non-settling defendants.  Due to the lack of information, the Court cannot determine whether the settlement is reasonable and made in good faith.

 

Plaintiff cannot cure the foregoing defects in a late reply if one is filed.  Even if a reply would have been timely filed, any attempt to address the deficiencies in the motion could not be considered by the Court as the opposing parties would not have had the opportunity to address the new arguments.