TENTATIVE RULING

 

Calendar:    1

Date:          9/16/2022 

Case No: 19 STCV29534 Trial Date: None Set 

Case Name: Gonzalez, et al. v. Tapia Construction, Inc., et al.

MOTIONS FOR DETERMINATION OF 

GOOD FAITH SETTLEMENT (2)

Moving Party:            Defendants and Cross-Defendants Levik Hagopian and Icon

Investments, LLC 

Defendants AMWest Construction, Inc. and Emil Alexandrian       

Responding Party: Defendants Tapia Construction, Inc. and Lubiu Harobian (No Opposition) 

Cross-complainant Pure Safety Group, Inc. dba Guardian Fall (No Opposition)      

RELIEF REQUESTED:

Determination that settlements described below were made in good faith 

Order dismissing as against Hagopian and Icon Investments, LLC the cross-complaint of Pure Safety Group, Inc. dba Guardian Fall 

SUMMARY OF FACTS:

Plaintiffs Erika Rodriguez, individually, and as conservator of the estate of Jose Angel Delgado-Gonzalez, allege that in August of 2017, plaintiff Delgado, during the course of his employment for Tapia Construction Inc. as a roofer fell off the second story of a construction job. His safety harness failed and then Delgado fell on his head.  The construction was taking place at a site on West Dryden Street in Glendale. 

The SAC alleges that A M West Construction Co. (“AM West”) was the contractor at the subject premises on the day of the subject incident, and that defendant Emil Alexandrian is the owner or principal of AMWest, and that Alexandrian treats AMWest as an alter ego.  The SAC alleges that defendant Icon Investments, LLC (“Icon”) is the owner the subject premises, and that defendant Levik Hagobian (responding as “Hagopian”) is the owner and principal of defendant Icon.  The SAC alleges that these defendants exercised retained control of the construction site and that their negligent control affirmatively contributed to Delgado’s injuries.  

The SAC alleges that defendants created needless danger on the construction site causing catastrophic injuries to plaintiff Delgado, rendering him in a vegetative state for the rest of his life.  Plaintiffs allege that in addition to their negligent control defendants were negligent because they failed to compel their subcontractors to adopt safety measures required for the safety of workers at the construction site, provided faulty material and equipment, including the defective harness and a defective anchorage that failed to stop Delgado from hitting the ground when he fell, and forced plaintiff to work in the heat without giving him proper breaks and hydration required for his safety. 

Plaintiffs allege that defendants breached their duty of care by hiring employees who were incompetent and unfit, failing to maintain and repair the construction site, and failing to warn of the dangerous condition of the construction site. 

The SAC also brings various product liability causes of action against Doe Defendants alleging that the harness supplied to plaintiff did not function properly, did not have instructions for use, and did not provide appropriate warnings. 

On March 30, 2022, plaintiffs filed an Amendment to Complaint, amending the complaint to substitute the true name of defendant Pure Safety Group, Inc. dba Guardian Fall for the fictious name Doe 1.   

Defendant Pure Safety Group has filed a cross-complaint for equitable indemnity, contribution, and declaratory relief against co-defendants AMWest Construction, Alexandrian, Icon Investments and Hagopian as cross-defendants. 

ANALYSIS:

APPLICATION FOR GOOD FAITH SETTLEMENT 

Settling Parties:     Plaintiff Erika Rodriguez, individually and as GAL to Jose Angel Delgado Gonzalez and defendants Levik Hagopian and Icon Investments, LLC 

Plaintiff Erika Rodriguez, individually and as GAL to Jose Angel Delgado Gonzalez and defendants AMWest Construction, Inc. and Emil Alexandrian

Basis, Terms and Amount of Settlement:  

Icon Defendants--Plaintiff to accept the sum of $1,000,000.00 (policy limits) 

AMWest Defendants—Plaintiff to accept the sum of $1,000,000.00, contingent on finding of good faith  

SHOWING OF GOOD CAUSE (Tech-Bilt 38 Cal.3d 488) 

1. Plaintiff’s Total Recovery 

Not set forth.

2. Settlor’s Proportionate Liability 

Icon Defendants-- Argument that plaintiff’s recovery limited because Icon Investments and Hagopian, the landowner defendants, have no liability under the Privette doctrine, as the hirer of independent contractors, with no involvement with plaintiff’s fall or possession of or involvement with equipment which caused accident and no condition at their property they created. 

AMWest Defendants—Argument that no liability on the part of AMWest defendants as only involvement of AMWest defendants was subcontracting to defendant Tapia Construction, who employed Gonzalez as a roofer.  No participation in events, or possession or control of any items related to the roofing project, including any safety or support systems or mechanisms.   Not at the property on the day of the subject incident. Only involvement performing interior carpentry work.  

  

3. Amount Paid in Settlement

Icon Defendants -- $1,000,000.00

AMWest Defendants-- $1,000,000.00 

4. Allocation of Settlement Proceeds Among Plaintiffs

Not applicable.  One plaintiff. 

5. Defendant’s Financial Condition

Icon Defendants-- Insurance policy limits. 

AMWest Defendants—Not mentioned 

6. Existence of Collusion 

Icon Defendants-- Settlement reached with Icon defendants as a result of good faith negotiations, arms-length settlement agreement in principle.  [Kassabian Decl., para. 4]. 

AMWest Defendants-- Following arms-length negotiations, settlement reached, and does not involve any fraud or collusion and settlement does not include any collusive or secretive terms. [Salamatian Decl., paras. 7, 8, 10]. 

Under CCP section 877.6, a court may approve a settlement by determining it was made in good faith, and such a determination shall bar any other joint tortfeasor from further claims against the settling torfeasor.  CCP section 877.6(d) provides that “The party asserting the lack of good faith shall have the burden of proof on that issue.”

Under Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the factors set forth above should be considered in determining the good faith of a settlement.   

The trial court enjoys broad discretion in determining whether a settlement was entered in good faith and in allocating potential liability and exposure among joint tortfeasors.   Norco Delivery Services v. Owens Corning Fiberglass (1998) 64 Cal.App.4th 955, 962.   A reviewing court will “assess whether the trial court’s good faith determination is buttressed by any substantial evidence.”   Id.  

The court in determining the good faith of a settlement should recognize that a settlor should pay less in settlement than if found liable after a trial.   Mattco Forge, Inc. v. Arthur Young & Co.  (1995, 2nd Dist.) 38 Cal.App.4th 1337, 1349.  

The valuation of the settlement figure must be based on facts known at the time of the settlement. See Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1497-1499.

Under CCP § 877.6(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.”  

In Tech Bilt, the Supreme Court stated:

“’[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.’ (Torres v. Union Pacific R.R. Co. (1984) 157 Cal.App.3d 499, 509 [203 Cal.Rptr. 825].) The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (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, at 499-500 (footnote omitted).

Here, two sets of defendants have settled with plaintiff.  The motions do not set forth plaintiff’s expected recovery, when damages in this matter are probably quite substantial, given the allegations in the operative complaint that Gonzalez is in a vegetative for the rest of his life.  The motions also do not include information on the financial conditions of the settling parties, other than the representation by the Icon Defendants that the $1 million settlement sum represents insurance policy limits.  

However, there has been no timely opposition filed to either motion. 

In City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, the court of appeal upheld the trial court’s determination that an uncontested motion for good faith settlement was entered in good faith when the moving papers had not provided information concerning all of the Tech-Bilt factors, but only stated the amount of the settlement and the policy limits.   The court first noted that CCP section 877.6 had not been amended to add procedural requirements since the decision in Tech-Bilt, and approved the following procedure:

 

“This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court.  At the time of filing in many cases, the moving party does not know if a contest will develop.  If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients' resources.  It must also be remembered that

Tech-Bilt was decided on a contested basis.  We are unaware of any reported decision which has reversed an uncontested good faith determination and we, therefore, conclude that only 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, at 1261 (emphasis added). 

Here, the motions meet this standard, as the background of the case is provided in each motion, and the grounds of good faith are set forth.  

Specifically, the Icon defendants submit a declaration stating that plaintiff and defendants “entered into an arms-length settlement agreement,” which resulted from “good faith negotiations and is not the product of any collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants.”  [Kassabian Decl., para. 4].  The motion argues in some detail that the Icon defendants, the landowners, dispute any possible liability under the Privette doctrine, as the hirer of independent contractors, with no involvement with plaintiff’s fall or possession of or involvement with the equipment which caused plaintiff’s accident.   

The AMWest defendants submit a declaration stating their settlement with plaintiff was reached following “arms-length negotiations between the parties,” presumably represented by their respective counsel, and that the settlement, “does not involve any fraud or collusion,” and “does not include any collusive or secretive terms.”  [Salamatian Decl., paras. 8, 10].  The declaration also explains why the AMWest defendants dispute liability, as they were not involved in the roofing project aspect of the construction, aside from subcontracting to plaintiff’s employer.  [Salamatian Decl., para. 6].  

Again, there is no opposition to the motion.  Once evidence of the good faith of a settlement has been presented, the burden remains on any challenging party to establish a lack of good faith.    See City of Grand Terrace, at 1261; CCP section 877.6(d).  There is no opposition, so this burden has not been met.  The motions accordingly are granted. 

  

RULING:

[No Opposition]

Motion for Order Determining Good Faith Settlement and for Dismissal of Defendants and Cross-Defendants Icon Investments, LLC and Levik Hagopian is GRANTED. 

The Court determines that the settlement entered into by plaintiff Erika Rodriguez, individually and as GAL to Jose Angel Delgado Gonzalez and defendants Levik Hagopian and Icon Investments, LLC was entered into in good faith.   Defendants and cross-defendants Levik Hagopian and Icon Investments, LLC are discharged from all liability on claims for equitable comparative contribution, and/or partial or comparative indemnity, based on comparative negligence or comparative fault, by other parties, joint tortfeasors, or co-obligors, in this or any other action arising from the same general set of facts.  

Cross-complaint for Equitable Indemnity; Contribution; and Declaratory Relief filed by Cross-Complainant Pure Safety Group, Inc. dba Guardian Fall filed on May 19, 2022 is ordered DISMISSED as to cross-defendants Icon Investments, LLC and Levik Hagopian.

Defendants AMWest Construction, Inc.’s and Emil Alexandrian’s Motion for Determination of Good Faith Settlement is GRANTED. 

The Court determines that the settlement entered into by plaintiff Erika Rodriguez, individually and as GAL to Jose Angel Delgado Gonzalez and defendants AMWest Construction, Inc. and Emil Alexandrian was entered into in good faith.   Defendants and cross-defendants AMWest Construction, Inc. and Emil Alexandrianare discharged from all liability on claims for equitable comparative contribution, and/or partial or comparative indemnity, based on comparative negligence or comparative fault, by other parties, joint tortfeasors, or co-obligors, in this or any other action arising from the same general set of facts.  

Request in notice for an Order permitting defendants to file relevant settlement agreement under seal is DENIED, as an appropriate motion for such relief has not been made.  The Court notes that it is able to make the necessary good faith settlement determination based on the sworn declaration of counsel, without submission of the actual settlement agreement. 

Cross-complaint for Equitable Indemnity; Contribution; and Declaratory Relief filed by Cross-Complainant Pure Safety Group, Inc. dba Guardian Fall filed on May 19, 2022 is ordered DISMISSED as to cross-defendants AMWest Construction, Inc. and Emil Alexandrian.

  GIVEN THE CORONAVIRUS CRISIS, AND TO ADHERE TO HEALTH GUIDANCE THAT DICTATES SAFETY MEASURES, DEPARTMENT D IS ENCOURAGING AUDIO OR VIDEO APPEARANCES

Please make arrangement in advance if you wish to appear via LACourtConnect/Microsoft Teams by visiting www.lacourt.org to schedule a remote appearance.  Please note that LACourtConnect/Microsoft Teams offers free audio and video appearance. Counsel and parties (including self-represented litigants) are encouraged not to personally appear.  With respect to the wearing of face masks, Department D recognizes that currently, the Los Angeles Department of Public Health strongly recommends masks indoors, especially when interacting with individuals whose vaccination status is unknown; for individuals who have a health condition that puts them at higher risk for severe illness; individuals who live with someone who is at higher risk; and for individuals who are around children who are not yet eligible for vaccines.  In accordance with this guidance, it is strongly recommended that anyone personally appearing in Department D wear a face mask.  The Department D Judge and court staff will continue to wear face masks.  If no appearance is set up through LACourtConnect/Microsoft Teams, or otherwise, then the Court will assume the parties are submitting on the tentative.