Judge: Melvin D. Sandvig, Case: 21STCV05519, Date: 2023-10-25 Tentative Ruling
Case Number: 21STCV05519 Hearing Date: November 28, 2023 Dept: F47
Dept. F47
Date: 11/28/23
Case #21STCV05519
MOTION FOR
DETERMINATION OF GOOD FAITH SETTLEMENT
Motion filed on 11/3/23.
MOVING PARTY: Defendants Henry
and Sara Rose, LLC and Rose Brothers Enterprises
RESPONDING PARTY: Defendant GMCND, Inc. dba La Placita
Market
NOTICE: ok
RULING: The motion is granted.
SUMMARY OF FACTS & PROCEDURAL HISTORY
This action arises out of an attack on Plaintiff Raul
Cabrera (Plaintiff) on or about 10/5/20 while inside a store located at 10402
Laurel Canyon Boulevard, Pacoima, California 91331, more commonly referred to
as La Placita Market (the Premises).
(Complaint ¶1). On 2/11/21, Plaintiff
filed this action against Defendants Henry and Sara Rose, LLC and Rose Brothers
Enterprises (the Rose Defendants) as property owners of the Premises, and
against GMCND, Inc., and Sharmeen’s Enterprises, Inc., as lessors and/or
sublessors of the Premises for negligence and premises liability. (Complaint ¶¶3-5; Amendment to Complaint
filed 5/5/21). Although not named as a
defendant in this action, Samuel F. Rose Properties, LLC is a joint owner of
the Premises with Henry and Sara Rose LLC.
The motion claims that the Rose Defendants and Samuel F.
Rose Properties, LLC deny all liability with respect to Plaintiff’s claims; however,
to avoid the uncertainty of trial and the costs of further litigation, without
admitting liability, on or about 6/29/23, the Rose Defendants reached a
settlement with Plaintiff whereby they and/or their insurer will pay
$150,000.00 as full and final consideration for: (1) a release of any and all
claims against the Rose Defendants or Samuel F. Rose
Properties, LLC related to this action; and (2) a dismissal of the Rose
Defendants and Samuel F. Rose Properties, LLC, with prejudice, from Plaintiff’s
(the Settlement). (See Lawrence
Decl., Ex.A).
On 10/25/23, the Rose Defendants prior motion for
determination of good faith settlement was denied without prejudice. (See 10/15/23 Minute Order). On 11/3/23, the Rose Defendants filed and
served the instant First Amended Motion for Determination of Good Faith
Settlement which seeks an order determining that the settlement entered into
between the Rose Defendants, Plaintiff and Samuel F. Rose Properties, LLC was
made in good faith pursuant to CCP 877 and CCP 877.6. The Rose Defendants request an order that any
pending and future claims for equitable contribution, or total, partial, and
comparative indemnity against the Rose Defendants based on comparative
negligence or comparative fault be dismissed and forever barred pursuant to CCP
877.6(a)(1) and CRC 3.1202, et seq. Defendant/Cross-Complainant
GMCND, Inc. dba La Placita Market (GMCND) has opposed the motion and the Rose
Defendants have filed a reply to the opposition. The motion was originally scheduled for
hearing on 2/23/24 but was advanced and continued to 11/28/23 by the Court on
11/7/23. (See 11/7/23 Minute
Order & Notice of Change of Hearing Date filed 11/8/23).
ANALYSIS
CCP 877.6 provides, in relevant part:
“(a)(1) 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 in subdivision
(b) of Section 1005. Upon a showing of good cause, the court may shorten
the time for giving the required notice to permit the determination of the
issue to be made before the commencement of the trial of the action, or before
the verdict or judgment if settlement is made after the trial has commenced.
. .
.
(b) 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.
(c) 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.
(d) The party asserting the lack of
good faith shall have the burden of proof on that issue.
. .
.”
In determining whether a settlement was entered in good
faith pursuant to CCP 877.6, the Court must consider the following factors: (1)
a rough approximation of plaintiffs’ 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 non-settling defendants. See
Tech-Bilt, Inc. (1985) 38 C3d 488, 499-500. The evaluation of whether the settlement is
in good faith must be made on the basis of the information available at the
time of settlement. Id. at
499.
The amount a plaintiff claims in damages is not
determinative in finding whether a settlement was entered in good faith. Cahill (2011) 194 CA4th 939, 964. Instead, the court must make a rough
approximation of what the plaintiff would actually recover. Id.
Here, the $150,000.00 settlement resulted after
arms-length negotiations between counsel for the Rose Defendants and counsel
for Plaintiff. (Lawrence Decl. ¶¶4,
21-24).
“A plaintiff seeking to establish that a property owner’s
failure to provide security is the cause of a criminal assault by a third party
must show [by a preponderance of the evidence] the security would have
prevented the assault.” Saelzler (2001)
25 C4th 763, 782.
The Rose Defendants have
presented evidence that Plaintiff was the victim of an unforeseeable, random,
unprovoked attack by an unknown assailant on the Premises. (See Lawrence Decl. ¶¶25-34,
Ex.F-I). Additionally, the Rose
Defendants leased the Premises to Houshang Eddy Maghen & Ezatolah Nazarian
(Lessee) on 12/6/98 for a term of 25 years (Master Lease). (Lawrence Decl. ¶6, Ex.B). Under Section 41 of the Master Lease, the
Lessee assumed “all responsibility for the protection of the Premises, Lessee,
its agents and invitees and their property from the acts of third parties,” and
acknowledged that Lessor had “no obligation whatsoever to provide . . . guard
service or other security measures.” (Lawrence Decl. ¶7, Ex.B). Section 8.7 of the Master Lease also requires
the Lessee to “indemnify, protect, defend and hold harmless the Lessor from all
claims, damages, judgments, etc., arising out of any act, omission or neglect
of Lessee, its agents, contractors, employees, or invitees.” (Lawrence Decl. ¶8, Ex.B). The Master Lease further required the Lessee
to obtain and keep in force Commercial General Liability Insurance protecting
Lessor as an additional insured against claims for bodily injury or personal
injury. (Lawrence Decl. ¶10, Ex.B).
On or about 1/25/05, Maghen and Nazarian assigned the
Master Lease to Shoukat Hussain Ali, with the consent of the Rose Defendants
(Assignment). (Lawrence Decl. ¶11,
Ex.C). The Assignment of the Lease did
not release Houshang Eddy Maghen & Ezatolah Nazarian from their legal
duties and obligations agreed to in the Master Lease, and all assignees or
sublessees are deemed to have assumed and agreed to conform and comply with
each and every term, covenant, condition, and obligation of the Master Lease. Id.
Under the Assignment, Ali assumed all terms, covenants, conditions, and
obligations under the Original Lease. (Lawrence
Decl. ¶12, Ex.C).
The Rose Defendants and Ali entered into a Renewal of
Lease (the Renewal), incorporating all terms of the Master Lease, extending the
term until December 5, 2024. (Lawrence Decl. ¶13, Ex.D). The Renewal also allowed Ali to transfer all
or a portion of his interests in the Original Lease and Renewal to the
corporation he intended to form. Under
the Renewal, the parties agreed that “the transfer of all or a portion of
[Ali’s] interest to the corporation shall not release Ali or the Corporation of
any obligation of [Ali] under the Lease.” (Lawrence Decl. ¶14, Ex.D). The Renewal provided further that the terms of
the Master Lease “shall remain in full force and effect [and] Subject to the
provisions of the Master Lease as to assignment, the agreements, conditions and
provisions [in the Renewal] shall apply to and bind the heirs, executors,
administrators, successors and assigns of the parties hereto.” (Lawrence Decl. ¶15, Ex.D). The Rose Defendants claim that Ali formed the
corporation Sharmeen’s Enterprises, Inc. on or about 8/4/95. (Lawrence Decl. ¶16).
On 8/20/15, Ali entered into an agreement to sublease
approximately 1,000 square feet of the Property (the Meat Market) to Roberto
Rodriguez and GMCND, Inc., on a month-to-month basis, beginning 9/1/15 (the
Sublease). (Lawrence Decl. ¶17, Ex.E). Under the terms of the Sublease, it is
“subject and subordinate to the Master Lease (Original Lease).” (Lawrence Decl. ¶18, Ex.E). The parties to the Sublease agreed that “the
terms, conditions, and respective obligations of the Sublessor and Sublessee to
each other . . . shall be the terms and conditions of the Master Lease except
for those provision of the Master Lease which are directly contradicted by
[the] Sublease ...” (Lawrence Decl. ¶19,
Ex.E). On 9/15/15, Ali assigned all
right, title, and interest in the Sublease to his corporation, Sharmeen’s
Enterprises, Inc. (Lawrence Decl. ¶20).
GMCND contends that Plaintiff has incurred over
$1,112,611.30 in medical bills and will require lifelong care in excess of
$5,000,000; therefore, the $150,000 settlement cannot be found to be in good
faith because: (1) apportionment cannot properly be estimated at this time; (2)
the $150,000.00 settlement is severely disproportionate to Plaintiff’s claimed
injuries and other claimed damages; and (3) the Rose Defendants have not
sufficiently demonstrated any inability to pay more or within their policy
limits.
Without citing any authority or evidence, GMCND argues
that as owners of the Premises, the Rose Defendants have a duty to keep
customers and patrons on the property reasonably safe. (See Opposition, p.4:2-3). GMCND fails to address the evidence presented
with the motion that indicates that the attack on Plaintiff was unforeseeable,
random and unprovoked. Even if the
attack could somehow have been prevented, GMCND also fails to address the fact
that under Section 41 of the Master Lease for the Premises, the lessee assumed “all
responsibility for the protection of the Premises, Lessee, its agents and
invitees and their property from the acts of third parties,” and acknowledged
that lessor (i.e., the Rose Defendants) had “no obligation whatsoever to
provide . . . guard service or other security measures.” Additionally, Section 8.7 of the Master Lease
requires the lessee to “indemnify, protect, defend and hold harmless the lessor
from all claims, damages, judgments, etc., arising out of any act, omission or
neglect of lessee, its agents, contractors, employees, or invitees.” GMCND also fails to address the fact that the
sublease to GMCND for a portion of the Premises provides that ““the terms,
conditions, and respective obligations of the Sublessor and Sublessee to each
other . . . shall be the terms and conditions of the Master Lease except for
those provisions of the Master Lease which are directly contradicted by [the]
Sublease ... .” As such, GMCND has
failed to meet its burden of establishing that the settlement lacks good
faith. CCP 877.6(d).
Since the unrefuted evidence indicates that the Rose
Defendants and Samuel F. Rose Properties, LLC would likely bear no liability to
Plaintiff under the circumstances, the $150,000.00 settlement is reasonable and
in good faith, regardless of the Rose Defendants’ and Samuel F. Rose
Properties, LLC’s ability to pay more via insurance or otherwise.
CONCLUSION
The motion is granted.