Judge: Michelle Williams Court, Case: 21STCV40249, Date: 2022-10-10 Tentative Ruling

Counsel may submit on the tentative ruling by emailing Dept. 74 before 8:30 the morning of the hearing. The email address is smcdept74@lacourt.org. Please do not call the court to submit on the tentative.

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In deciding whether to submit on the tentative ruling or attend the hearing and present oral argument, please keep the following in mind: The tentative rulings authored by this court reflect that the court has read and considered all pleadings and evidence timely submitted to the court in connection with the motion, opposition, and reply (if any). Because the pleadings were filed, they are part of the public record. Oral argument is not an opportunity to simply repeat that which a party set forth in its pleadings. Nor, is oral argument an opportunity to "make a record" when there is no court reporter present and the statements and arguments of counsel are already part of the record because they were set forth in the pleadings. Finally, simply because a party or attorney disagrees with the court's analysis and ruling or is not satisfied with it does not necessarily warrant oral argument when no new arguments will be articulated. If you submit on the tentative, you must immediately notify all other parties email that you will not appear at the hearing. 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 motions. If all parties to the motion submit, this tentative ruling will become the final ruling after the hearing date and it will be memorialized in a minute order. This tentative ruling is not an invitation, nor an opportunity, to file further documents relative to the hearing in question. No such document will be considered by the Court.


 


 

Case Number: 21STCV40249    Hearing Date: October 10, 2022    Dept: 74

21STCV40249           STEPHEN FISCHER vs EQUITY RESIDENTIAL MANAGEMENT

Motion for Determination of Good Faith Settlement

TENTATIVE RULING:  The motion is taken OFF CALENDAR.

Background

On November 2, 2021, Plaintiff Stephen Fischer filed this action against Defendants Equity Residential Management, LLC, ERP Operating Limited Partnership, and Signal Restoration West, LLC. On December 16, 2021, Plaintiff filed the First Amended Complaint asserting causes of action for: (1) Negligence; (2) Premises Liability; (3) Violations of the County of Los Angeles Rent Stabilization Ordinance; (4) Violations of the Los Angeles County Covid-19 Eviction Moratorium; (5) Negligence Per Se Based Upon Violations of the California Fire Prevention Laws; (6) Constructive Eviction; (7) Breach of Warranty of Habitability; (8) Fraudulent Misrepresentation; and (9) Violations of the County of Los Angeles Rent Stabilization Ordinance, Anti-Harassment.

On January 10, 2022, Defendant Signal Restoration West, LLC filed a cross-complaint against Defendants Equity Residential Management, LLC and ERP Operating Limited Partnership for: (1) equitable indemnity; (2) contribution; (3) implied contractual indemnity; and (4) express indemnity.

The Court related this action with Los Angeles Superior Court cases 21STCV06652 Keith Fox, et al. vs Equity Residential Properties, LLC, et al and 21STCV36917 Michael Mikulec, et al. vs Equity Residential Properties, LLC, et al.

Motion

On August 18, 2022, Defendant/Cross-Complainant filed the instant motion for good faith settlement.

The motion is unopposed.

Good Faith Settlement Determination

Standard

Code of Civil Procedure section 877 provides that “[w]here a release, dismissal . . . , or a covenant not to sue . . . is given in good faith before verdict or judgment to . . .” some, but not all, joint tortfeasors or co-obligors, it shall (1) not discharge remaining tortfeasors or co-obligors, and (2) “discharge the party to whom it is given from all liability for any contribution to any other parties.” (Code Civ. Proc. § 877(a)-(b).) This section does “not apply to co-obligors who have expressly agreed in writing to an apportionment of liability for losses or claims among themselves.” (Code Civ. Proc. § 877(c).) Any party to the action, including the settling party, may request or obtain a hearing to determine the good faith nature of the proffered settlement. (Code Civ. Proc. § 877.6(a)(1)-(2).) When determining the good faith nature of a settlement, the court may properly rely on (1) supporting and opposing declarations, (2) other evidence received at the hearing, or (3) the court’s “personal experience and [the guidance] of experts in the field.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 500; Code Civ. Proc. § 877.6(b).)

“The good faith provision of section 877 mandates that the courts review agreements purportedly made under its aegis to [e]nsure that such settlements appropriately balance the contribution statute’s dual objectives” of equitable sharing and encouragement of settlement. (Tech-Bilt, supra, 38 Cal.3d at 494.) The relevant Tech-Bilt factors for determining whether a settlement was made in good faith include: (1) the rough approximation of the plaintiff’s total recovery and the settling defendant’s proportionate liability; (2) the settlement amount; (3) the relative allocation of settlement proceeds among the plaintiffs; (4) the recognition that a defendant should pay less through settlement than he would have to pay if found liable at trial; (5) the settling party’s financial condition and relevant insurance policy limits; and (6) the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of nonsettling defendants. (Id. at 499.)

“[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. 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.” (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)

“If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.” (Id. at 1261–1262.)

This evaluation is “made on the basis of information available at the time of settlement.” (Tech-Bilt, supra, 38 Cal.3d at 499.) The “trial court must inquire ‘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.’” (PacifiCare of Cal. v. Bright Medical Associates, Inc., (2011) 198 Cal.App.4th 1451, 1464 (quoting Tech-Bilt, Inc., supra, 38 Cal.3d at 499).) “The party asserting the lack of good faith, who has the burden of proof . . . 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.” (Tech-Bilt, Inc., supra, 38 Cal.3d at 499-500.)

Defendant’s Motion is Not Accompanied by a Proof of Service

On August 18, 2022, Defendant filed a 253-page document entitled “Defendant Signal Restoration West LLC’s Notice of Motion and Motion for Good Faith Settlement with Plaintiff Stephen Fischer; Memorandum of Points and Authorities; Declaration of J. Kyle Gaines.” This document includes a notice of motion, memorandum, declaration, and exhibits. Defendant did not file a proof of service of the motion and the time to do so has expired. (Cal. R. Ct., rule 3.1300(c) (“Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.”).)

While Defendant attaches a stipulation between Plaintiff, Defendant Signal Restoration West, LL, Defendant Equity Residential Management, LLC, and Defendant Equity Operating Limited Partnership that states “Counsel for Equity agreed to stipulate to the good faith settlement between Plaintiff and Signal,” (Gaines Decl. Ex. F), nothing in the stipulation waives notice of the Defendant’s motion herein. Every motion must be accompanied by a proof of service demonstrating adequate notice to all parties entitled thereto. (See e.g. Cal. R. Ct., rule 3.1300(c); Code Civ. Proc. §§ 1010 et seq.) To the extent the Defendant’s motion under Code of Civil Procedure section 877.6(a)(1) could be construed as an application for determination of good faith settlement, it similarly requires the filing of a proof of service. (Code Civ. Proc. § 877.6(a)(2) (“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.”).)

The Court shall not hear the motion absent evidence of proper service. (See generally Edward W. v. Lamkins (2002) 99 Cal.App.4th 516, 532 (“The primary purpose of procedural due process is to provide affected parties with the right to be heard at a meaningful time and in a meaningful manner.”) quoting People v. Hansel (1992) 1 Cal.4th 1211, 1219.)

Defendant’s motion is taken OFF-CALENDAR due to lack of evidence of proper service.