I. BACKGROUND 

On December 16, 2022, plaintiff LL John Doe MB (“Plaintiff”) filed this action against defendants Doe School District (the “District”), Doe County, Doe Probation Department, Doe City, Doe Law Enforcement Agency, and Does 6 through 100 for allegations arising from childhood sexual abuse occurring in or around 1995-1996. The complaint sets forth seven causes of action for 1) Claim for Childhood Sexual Assault in Violation of Cal. Code of Civil Procedure 340.1; (2) Negligence; (3) Negligent Supervision/Failure to Warn; (4) Negligent Retention/Hiring; (5) Negligent Failure to Warn, Train or Educate; (6) Intentional Infliction of Emotional Distress; and (7) Sexual Harassment. 

On June 24, 2024, the District filed a motion for judgment on the pleadings against Plaintiff’s complaint premised on the constitutionality of California Assembly Bill 218 (“AB 218”). 

On July 24, 2024, defendants Doe County and Doe Probation Department (collectively, “County Defendants”) filed a demurrer with motion to strike the District’s cross-complaint against them, arguing that the District’s claims of express indemnity, equitable indemnity, and contribution are barred as a matter of law. 

On July 24, 2024, the County Defendants filed a motion for good faith settlement, wherein a settlement had been reached between the County Defendants and Plaintiff. 

II. MOTION FOR JUDGMENT ON THE PLEADINGS 

The District’s motion centers around the constitutionality of AB 218. This argument was previously addressed on the District’s motion to stay proceedings, heard on August 2, 2024. The Court finds it unnecessary to rehash the same issues in detail, especially in light of the recent appellate decision in West Contra Costa Unified Sch. Dist. v. Superior Ct. of Contra Costa Cnty (West Contra), Case No. A16934, 2024 WL 3593932. 

The Court previously recognized two petitions for writ of mandate that were pending before the First and Second District Appellate Courts in West Contra (concerning decision to overrule demurrer predicated on unconstitutionality of AB 218) and Roe #2 v. Superior Court, Case No. B334707 (concerning decision to deny motion for judgment on the pleadings predicated on unconstitutionality of AB 218). 

In West Contra, the school district argued that revival of a claim that was formerly barred for failure to satisfy the claim presentation requirement would constitute an unconstitutional gift of public funds, in violation of article XVI, section 6 of the California Constitution (the “gift clause”). The District presents the same arguments here. 

As pointed out by Plaintiff, the West Contra appellate court denied the school district’s petition for writ of mandate, holding that the retroactive waiver of Government Claims Act's claim presentation requirement was not a gift of public funds, the law served a valid public purpose, and that the school district lacked standing to assert a due process challenge to AB 218 under either the federal or California Constitutions. West Contra is binding. 

The District’s request to dismiss Plaintiff’s entire action on the grounds that AB 218 violates Article XVI, section 6 of the California Constitution is therefore DENIED. 

III. DEMURRER WITH MOTION TO STRIKE 

On June 24, 2024, the District filed a cross-complaint against Doe County (Los Angeles County) and Roes 1 through 20 for (1) equitable indemnity, (2) partial equitable indemnity, (3) declaratory relief, and (4) express indemnification. 

The County Defendants (i.e. Doe County and Doe Probation Department) demur to all causes of action asserted against Doe County, in addition to moving to strike the entire cross-complaint on the grounds that the District did not first seek obtain leave.  

The County Defendants demur to all causes of action against Doe County, arguing that the first, second, and third causes of action are barred as a matter of law given the settlement between the County Defendants and Plaintiff, and that the fourth cause of action fails because no contract had been pled with sufficient detail nor any contract provided for there to be any express indemnification. County Defendants also moves to strike the entirety of the District’s cross-complaint on the grounds that it was filed without first obtaining leave, because it was filed more than a year after the District had filed its Answer to the complaint and more than ten months after the Court set the trial date. 

In opposition, the District argues that it has sufficiently pled equitable indemnity and declaratory relief for the first three causes of action, or in the alternative, that it could cure any defects. The District contends that the County defendants’ settlement will not be heard for final approval by their board until Spring 2025, and that the County Defendants cannot seek determination and indemnity based on a settlement not fully approved. As to the fourth cause of action, the District argues it pled that the parties entered into a contract. In opposition to the motion to strike, the District argues its cross-complaint is compulsory, and that the motion to strike should be denied and that it be granted retroactive leave to file a cross-complaint. 

In reply, the County Defendants argue there is no evidence of a contract after more than one year of discovery and reiterates that the District’s cross-complaint should be dismissed with prejudice. 

The District filed its Answer to Plaintiff’s complaint on June 5, 2023, yet filed its cross-complaint on June 24, 2024 without first seeking leave, and with trial set for October 14, 2024. The Court finds that the District’s cross-complaint against County of Los Angeles (Doe County) is not compulsory as argued. It is permissive. Just because it arises from the same occurrence as Plaintiff’s complaint does not make it compulsory. (R.L. P'ship v. Superior Ct. (2004) 120 Cal. App. 4th 490, 498 [A compulsory cross-claim is a claim a defendant has against the party who brought the original complaint or cross-complaint, and arises out of the same transaction, occurrence, or series of transactions as the cause of which plaintiff alleges in his complaint].) There was no original cross-complaint by Doe County against the District for this cross-complaint to be compulsory. 

Cross-complaints against parties other than plaintiffs or cross-complainants are permissive, and while efficiency may be gained by resolving claims in cross-complaints filed in one action, courts may require parties to pursue separate actions. (Insurance Co. of No. America v. Liberty Mut. Ins. Co. (1982) 128 Cal.App.3d 297, 303.) Permission to file a permissive cross-complaint is solely within the trial court's discretion. (Crocker Nat. Bank v. Emerald (1990) 221 Cal. App. 3d 852, 864.) Judges have discretion to deny leave to file permissive cross-complaints, including based upon a finding of unexplained delay, depending upon the interests of justice. (Ibid.)¿Here, the District acknowledges that it failed to seek leave prior to filing its cross-complaint, and requests instead that the Court grant it retroactive leave. 

The Court denies the District’s request for retroactive leave to file a cross-complaint. The District has not met its burden demonstrating that it would be “in the interest of justice” to grant leave to file a cross-complaint, especially since no reasonable excuse was given for the protracted delay, with trial now one month and ten days away from the present date. (See Crocker Nat. Bank v. Emerald (1990) 221 Cal. App. 3d 852, 864 [Appellate court affirmed trial court did not abuse discretion in denying leave to file a permissive cross-complaint when defendant did not explain delay, knew of facts upon which the causes of action were premised upon years earlier, and sought leave only five months before the trial date.].) The District’s failure to seek leave is already sufficient for this Court to strike the cross-complaint in its entirety. 

Further, the Court has already granted the County Defendants’ motion for good faith settlement (see below), which has in effect extinguished all equitable indemnity claims, but would not extinguish any contractual indemnity claim. (See C. L. Peck Contractors v. Superior Ct. (1984) 159 Cal. App. 3d 828, 834 [“The Legislature, by specifying equitable comparative indemnity, evidenced its intention to exclude contractual indemnity.”].) Aside from not pleading the specific terms of the contract or, in the alternative, attaching the contract as an exhibit to the cross-complaint, the District argues “the District is making efforts to search for the underlying contact [sic].” (Opp. Dem. 8:5-6.) If a contract containing an indemnification clause indeed exists, the District should have a copy of it. The District’s vague language pointing to a “potential contractual relationship” (Opp. Dem. 5:11-12) in conjunction with the general assertion that the District’s inability is “search[ing]” for it is not enough to survive a demurrer. If a contract exists, the District should have it by now. This is in sharp contrast to the County Defendants, who provide evidence that no such contract exists. (Decl. Lee; Exh. C-  RPD Response No. 9 & Exh. D - Monique Rojas Depo. at p. 74:14-25 to 76:1-8.) In arguendo, even if the District were to be granted leave to file the cross-complaint, it would be to no avail. The granting of good faith settlement has effectively extinguished all equitable claims the District may have against the County Defendants. In theory, any contractual indemnity claims would survive. However, the District has not met its burden that it could cure any of its contractual indemnity causes of action, especially when the only evidence provided has demonstrated the lack of existence of a relevant contract. 

The motion to strike the entirety of the District’s cross-complaint against Los Angeles County filed on June 24, 2024 is GRANTED without leave to amend. The County Defendants’ demurrer is therefore moot. 

IV. MOTION FOR GOOD FAITH SETTLEMENT 

On July 24, 2024, the County Defendants (i.e. Doe County (County of Los Angeles) and Doe Probation Department (Los Angeles County Probation Department)) filed a Motion for Determination of Good Faith Settlement providing that they entered into a settlement agreement with the Plaintiff for the total amount of $350,000.  

On August 20, 2024, the District filed an opposition to the motion.  

On August 26, 2024, the County Defendants filed its reply. 

In an action involving two or more joint tortfeasors or co-obligors, when one tortfeasor or obligor enters into a settlement with the plaintiff, the other tortfeasors or obligors are entitled to a hearing on the issue of whether the settlement was entered into in good faith.¿ (Code Civ. Proc., § 877.6(a).) Where a plaintiff settles with one of several joint tortfeasors or co-obligors without releasing the others, a determination of “good faith” discharges the settling defendant from liability to the other defendants for equitable contribution or comparative indemnity.¿ (CCP § 877(a)-(b).) The amount paid by the settling defendant reduces the claim against the others (CCP § 877(a)), but a risk of prejudice remains because an unreasonably low settlement (i.e., with the “most culpable” tortfeasor) exposes the remaining defendants to a judgment exceeding their fair share of the liability.¿ (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal. 3d 1012, 1019-1020.) 

There is no precise yardstick for measuring the “good faith” of a settlement with one of several tortfeasors, but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among tortfeasors.¿(See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.) 

¿“A more appropriate definition of ‘good faith,’ in keeping with the policies of American Motorcycle and the statute, would enable the trial court to inquire, among other things, whether the amount of the settlement is within the reasonable range of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries.¿ This is not to say that bad faith is ‘established by a showing that a settling defendant paid less than his theoretical proportionate or fair share.’ [Citation.]¿ Such a rule would unduly discourage settlements.¿ ‘For the damages are often speculative, and the probability of legal liability therefor is often uncertain or remote.¿ And even where the claimant's damages are obviously great, and the liability therefor certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.’ [Citation.]¿ Moreover, such a rule would tend to convert the pretrial settlement approval procedure into a full scale mini trial [citation]. 

“But these considerations do not lead to the conclusion that the amount of the settlement is irrelevant in determining good faith.¿ Rather, the intent and policies underlying section 877.6 require that a number of factors be taken into account 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.¿ 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. [Citation.]¿ Finally, practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.¿ ‘[A] defendant's settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant's liability to be.’ [Citation.]¿ The party asserting the lack of good faith, who has the burden of proof on that issue (§877.6(d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute.¿ Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.¿¿¿ 

(Tech-Bilt, Inc., 38 Cal.3d at 499-500.) 

Section 877.6 contemplates that the determination of good faith may be made by the court on the basis of affidavits (subd. (b)), and as the court observed in River Garden Farms, ‘The price levels are not as unpredictable as one might suppose.¿ Despite the uncertainties, generalized valuation criteria are recognized by the personal injury bar, insurance claims departments and pretrial settlement courts.¿ When testing the good faith of a settlement figure, a court may enlist the guidance of the judge's personal experience and of experts in the field.¿ Represented by knowledgeable counsel, settlement negotiators can predict with some assurance whether a settlement is within the reasonable range permitted by the criterion of good faith.¿ The danger that a low settlement violates the good faith clause will not impart uncertainty so long as the parties behave fairly and the courts maintain a realistic awareness of settlement imponderables.’ [Citation.] 

(Id. at 500-501.) 

¿ The Tech-Bilt factors can be summarized as follows: 

(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 defendants;¿ 

(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 nonsettling defendants. 

¿ Accordingly, if the party contesting the settlement can show, with admissible evidence, that the settlement is “so far ‘out of the ballpark’ in relation to [the above-referenced factors] as to be inconsistent with the equitable objectives of the statute,” then the court should find the settlement to be lacking in good faith. (Id. at 499-500.)¿ If no such showing is made, the settlement should be deemed to be in good faith and the settlor is entitled to an order barring any further claims by any other joint tortfeasor or co-obligor for “equitable comparative contribution, or partial or comparative indemnity” and/or an order dismissing any such claims.¿(CCP §877.6(c).) Additionally, “[w]hen testing the good faith of a settlement figure, a court may enlist the guidance of the judge’s personal experience and of experts in the field. Represented by knowledgeable counsel, settlement negotiators can predict with some assurance whether a settlement is within the reasonable range permitted by the criterion of good faith.”¿(Tech-Bilt,, 38 Cal.3d at 500.) 

Here, the County Defendants’ initial burden in moving for good faith determination is to prove there has been a settlement. (See Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1558; see also Mattco Forge, Inc. v. Arthur Young & Company (1995) 38 Cal.App.4th 1337, 1350 n.6.)  The County Defendants aver that the settlement is contingent upon either a stipulation that the District will not seek indemnity from the County Defendants or alternatively a determination by the Court that the settlement is in good faith. (Am. Motorcycle Assn. v. Superior Ct. (1978) 20 Cal. 3d 578, 604 [“[W]e conclude that….a tortfeasor who has entered into a “good faith” settlement [citation] with the plaintiff must also be discharged from any claim for partial or comparative indemnity that may be pressed by a concurrent tortfeasor.”].) 

The County Defendants aver that on June 12, 2024, Plaintiff, the County defendants, and the District participated in a mediation with Los Angeles Superior Court Judge, the Honorable Gail Andler (Ret.), wherein Plaintiff and the County Defendants finalized a written settlement agreement on June 21, 2024 for $350,000 to settle the matter. (Baum Decl. ¶ 4, Exh. A.) Counsel for the County Defendants avers he is familiar with the County’s claims resolution process for final approval by the County’s Board of Supervisors, which ordinarily takes six to nine months, and in which he explains the process and his belief that there is no reason to expect the settlement to face any unusual obstacles to approval. (Baum Decl. ¶¶ 6-13.)  

The County Defendants address each of the Tech-Bilt factors. They aver this case involves allegations of childhood sexual abuse in approximately 1994, in which Plaintiff was abused by Elmo Cormier (“Cormier”), a County Probation Officer stationed at a high school in Los Angeles County and operated by the District. Plaintiff alleges he was “groomed” by Cormier at the school and in Cormier’s home. The County Defendants argue that they have a strong factual and legal defense to Plaintiff’s complaint on the grounds that the claims are time-barred even with the “friendly amendments” implemented by the California legislature which enabled Plaintiff to file the lawsuit. Further, the County Defendants argue that, even if Plaintiff’s claims survived the County Defendants’ motion for summary judgment, its own negligence is thin because there is only one Probation employee identified who knew Cormier and who will offer testimony. The County Defendants assert that the District bears the brunt of liability, because all interactions leading up to the abuse and the abuse itself took place on school grounds. The County Defendants contend that the school employees and administrators were in a better position to prevent Cormier’s abuse. Thus, the County Defendants argue Plaintiff’s rough approximate recovery is $700,000, and that the settlement for $350,000 is not “far out of the ballpark” of Plaintiff’s potential recovery from the County Defendants at trial, considering the County Defendants’ proportionate share of liability. The County Defendants aver there was no insurance coverage involved, that there was an arm’s length negotiation pursuant to mediation, and that there is no evidence of collusion or bad faith or intention to harm the interest of any other person. 

The Court finds that the County Defendants met their moving burden. The burden therefore shifts to the District, as the only opposing party, to show the settlement was not in good faith.¿(Mattco, supra, 38 Cal.App.4th at 1350 n.6; CCP 877.6. [“The party asserting lack of good faith shall have the burden of proof on that issue.”].) 

In opposition, the District does not challenge the majority of the County Defendants’ contentions. Instead, it appears that the District disputes only the sixth Tech-Bilt factor, arguing that the only reason for the motion for good faith settlement is to bar the District’s implied indemnity claims. 

However, the consequence of approving a good faith settlement naturally extinguishing the District’s equitable indemnity claims is not a basis for bad faith. The Court is not persuaded by the District’s contentions that it will be prejudiced by the settlement. The District has not met its burden of proof that there exists a probability that the settlement not receive final approval by the County’s Board of Supervisors, such that settlement would fall apart entirely, nor has the District established the relevance of the final approval not occurring until after the trial date. Mere conjecture is insufficient to demonstrate that the settlement was the result of collusion, fraud, or tortious conduct. This is in addition to the Court finding that the settlement is not so low such as to establish that it is aimed at making the non-settling defendants pay more than their fair share, nor is there any argument by the District disputing this.¿There is no evidence to show collusion, fraud or tortious conduct between the County Defendants and Plaintiff. Consequently, all factors balance in favor of finding a good faith settlement. 

Defendants Doe County and Doe Probation Department’s application for good faith determination pursuant to CCP § 877.6 is GRANTED. 

Moving Party is ordered to give notice.