Judge: Stephen I. Goorvitch, Case: 21STCV29498, Date: 2023-06-20 Tentative Ruling
Case Number: 21STCV29498 Hearing Date: June 20, 2023 Dept: 39
Bridgette Bako v.
City of Los Angeles, et al.
Case No.
21STCV29498
Motion for
Determination of Good Faith Settlement
Plaintiff Brigette Bako
(“Plaintiff”) filed this action against the City of Los Angeles (the “City”)
and Joyce Anne Forest (“Forest”), asserting causes of action for dangerous
condition of public property, inverse condemnation, negligence, and
nuisance. Plaintiff alleges that on
January 6, 2021, as a result of a roadway’s dangerous condition and the City’s
acts and omissions, Forest’s car slid off the roadway, traveled down the hill,
and collided with Plaintiff’s house.
Plaintiff alleges that the incident caused Plaintiff’s property and
house to become structurally compromised, destabilized, damages, and
unsafe. Forest and Plaintiff have
settled for $25,000, and Forest seeks a determination that the settlement was
in good faith. The City opposes the
motion.
In Tech-Bilt, Inc. v.
Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the court set forth
the factors to consider when determining whether a settlement is made in good
faith. The Tech-Bilt factors are: (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
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 condition and
insurance policy limits of settling defendant; and (6) the existence of
collusion, fraud, or tortious conduct aimed to injure the interests of the
non-settling defendants. (Tech-Bilt, Inc. v. Woodward-Clyde &
Assoc. (1985) 38 Cal.3d 488, 498-501.)
The City has the burden to prove that the settlement was not made in
good faith. (See Code Civ. Proc., §
877.6(d).)
The Court initially heard the
motion on March 23, 2023, and found that it did not have sufficient information
to resolve the motion. (See Court’s
Minute Order, dated March 23, 2023.) The Court raised concerns because the settlement
amount if a fraction of the total alleged damages; Forest’s potential liability
is great; and the record did not exclude the possibility of collusion based
upon Plaintiff and Forest’s relationship.
(Ibid.) The Court continued the
hearing, and Forest provided additional information.
The Court held another hearing on May
2, 2023, and again found that it did not have sufficient information to resolve
the motion. (See Court’s Minute Order,
dated May 2, 2023.) The Court continued
the hearing so Forest could provide additional information concerning her
finances. (Ibid.)
The Court has reviewed the
supplemental information and now grants the motion. Forest’s tax returns from 2022 show that she
received a pension of approximately $78,000, which is confirmed by a print-out
from CalSTRS, which is the pension plan for public school teachers. (Declaration of Joyce Ann Forest, Exh.
A.) Forest’s tax returns show that she
received taxable interest of approximately $2,900, but she states in her declaration
that she no longer has that investment account, having used the funds to
purchase a new vehicle. (See Declaration
of Joyce Ann Forest, Exh. A & ¶ 18.)
Forest also provides copies of her expenses, which support her assertion
that she has limited means. (See
Declaration of Joyce Ann Forest, Exh. A.)
The City argues that she owns a house, which could be used to satisfy a
judgment. The record is clear that she cannot
access the equity in the house because she cannot afford to repay a mortgage,
given her limited financial resources.
The Court is not persuaded by the City’s proposal that she allow the
City to place a lien against her house.
Given her limited financial resources, she may need to sell the house to
afford to her retirement (e.g., to pay for healthcare, assisted living,
etc.) Forest is not required to become
homeless or jeopardize her retirement in order to settle this case.
The record establishes that this settlement
is the policy limit of Forest’s policy, which the City does not dispute. The record also establishes that the
settlement was reached through an arms-length negotiation through Forest’s
counsel and Plaintiff’s counsel.
(Declaration of Philip A. Kraft, ¶¶ 3-4.)
The Court understands the City’s
argument that the amount of the settlement is disproportionate to the total
damages in this case, though this does not persuade the Court to deny the
motion. For purposes of this motion, a
settlement is valued at the time of the settlement, not trial. The Court recognizes that a settlor should
pay less in settlement than she would if she were found liable after
trial. In this respect, the City has
created its own problem. Had the City settled
first, Forest would be the one on the losing end of this issue. This case is almost two years old. The City should endeavor to resolve cases
more expeditiously in the future.
The Court finds that there are
genuine issues of liability in this case.
Forest testified during her deposition that turned off the ignition and activated
the parking brake on her manual transmission car. (Declaration of Pejmon Shemtoob, Exh. E, p.
29:16-22, p. 30:12-14.) Forest testified
that the car “rolled down the street a bit” and then went down the hill. (Id., Exh. E, p. 37:14-17.) Forest testified that she had no idea why the
car moved. (Id., Exh. E, p. 29:21-22.) The City does not eliminate the possibility
that the car rolled due to a problem with the road. The City does not eliminate the possibility
that the car rolled due to a mechanical failure with the parking brake that did
not stem from Forest’s negligence. Forest
left her dog in the car while she moved a trash can in order to park the car. The City does not eliminate the possibility
that the dog released the parking brake and that Forest was not negligent in
leaving the dog in the car.
To the extent the City is concerned
that it will be responsible for a disproportionate amount of the damages, the
Court could address that issue through the use of a special verdict form at trial. If requested by the City, the Court could ask
the jury to determine whether the City and Forest were both negligent and, if
so, ask the jury to determine the total amount of damages and then assign a
percentage liability to each defendant.
This would address the City’s concern that it will be held liable for
damages that are properly attributable to Forest.
The Court has considered the
remaining issues and finds that Forest is entitled to a determination of good
faith settlement. Therefore, the Court
orders as follows:
1. Forest’s
motion for determination of good faith settlement is granted.
2. The
Court dismisses the City’s cross-complaint against Forest, having granted this
motion.
3. Counsel
for Forest shall provide notice and file proof of such with the Court.