Judge: Steven A. Ellis, Case: 20STCV22345, Date: 2025-03-04 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. 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. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV22345    Hearing Date: March 4, 2025    Dept: 29

Bissonnette v. City of Los Angeles
20STCV22345
Motion to Contest Determination of Good Faith Settlement filed by Defendant Southern Californian Tree and Landscape, Inc.

Tentative

The Court denies the motion to contest.

The Court determines that the settlement is in good faith.

Background

On June 12, 2020, Anthony Bissonnette (“Plaintiff”) filed a complaint against City of Los Angeles (“City”), County of Los Angeles (“County”), State of California (“State”), and Does 1 through 200, asserting causes of action for public entity liability and negligence arising out of an incident on July 27, 2019, in which, Plaintiff alleges, he encountered a dangerous condition while riding his bicycle on Western Avenue between the intersections of 19th Street and 9th Street, causing him to fall and sustain injuries.

On October 6, 2020, City filed an answer to the complaint.

On November 6, 2020, Plaintiff filed a First Amended Complaint (“FAC”) against the same defendants; in the FAC, Plaintiff alleges that the accident occurred on Western Avenue between the intersections of 19th Street and South Dodson Avenue.

On November 13, 2020, County filed an answer to the FAC.

On July 8, 2021, Plaintiff filed a request to dismiss County.

On November 14, 2022, Plaintiff filed a request to dismiss City.

On February 7, 2023, Plaintiff amended the FAC to name Southwind Village Community Association, Inc. dba “The Cape” Homeowners Association (“Southwind”) as Doe 1; Bennett Enterprises, a California Landscape Contracting Corporation dba Bennett Landscape (“Bennett”) as Doe 2; and Southern California Tree and Landscape, Inc. (“SCTL”) as Doe 3.

On March 10, 2023, Plaintiff amended the FAC to name All American Asphalt (“AAA”) as Doe 4.

On March 28, 2023, Southwind filed an answer to the FAC.

On April 26, 2023, AAA filed an answer to the FAC.

On May 22, 2023, Bennett filed an answer to the FAC.

On July 12, 2023, Plaintiff filed a Second Amended Complaint (“SAC”).

On July 14, 2023, SCTL filed an answer to the SAC and a cross-complaint against the People of the State of California, acting by and through the Department of Transportation (“Caltrans”), AAA, Southwind, and Roes 1 through 100.

On July 24, 2023, Caltrans filed an answer to the SAC and a cross-complaint against Southwind, Bennett, SCTL, AAA, and Roes 1 through 50.

On August 15, 2023, AAA filed an answer to the SCTL’s cross-complaint.

On August 17, 2023, Bennett filed an answer to Caltrans’s cross-complaint and a cross-complaint against Caltrans, AAA, Southwind, SCTL, and Roes 1 through 50.

On August 23, 2023, SCTL filed an answer to Caltrans’s cross-complaint.

Also on August 23, 2023, AAA filed an answer to Caltrans’s cross-complaint and a cross-complaint against Caltrans and Roes 1 through 50.

On August 25, 2023, AAA filed an answer to the SAC.

On September 19, 2023, AAA filed an answer to Bennett’s cross-complaint.

On September 20, 21, and 26, 2023, Caltrans filed answers to AAA’s cross-complaint, Bennett’s cross-complaint, and SCTL’s cross-complaint.

On October 3, 2023, Southwind filed an answer to the SAC and a cross-complaint against Caltrans, AAA, SCTL, and Moes 1 through 100.

On October 23, 2023, Bennett filed an answer to AAA’s cross-complaint.

On October 30 and 31 and November 6, 2023, Caltrans, SCTL, and AAA filed answers to Southwind’s cross-complaint.

On June 20, 2024, AAA filed a request to dismiss its cross-complaint as against Bennett.

On July 31, 2024, Bennett filed a request to dismiss its cross-complaint.

On August 6, 2024, Caltrans filed a request to dismiss its cross-complaint as against Bennett.

On August 23, 2024, Plaintiff filed a stipulation to dismiss the SAC as against Bennett.

On October 24, 2024, Southwind filed an application for determination of good faith settlement under Code of Civil Procedure section 877.6. According to the application, Plaintiff agreed to dismiss Southwind from the SAC in exchange for a settlement payment of $900,000.

On November 19, 2024, SCTL filed this motion to contest the application of Southwind for determination of good faith settlement.

Plaintiff filed an opposition on January 13, 2025.

Legal Standard

In a case involving two or more alleged joint tortfeasors, a party may seek a court order under Code of Civil Procedure section 877.6 determining that a settlement between the plaintiff and one or more of the alleged tortfeasors is in good faith. A judicial determination of good faith “bar[s] any other joint tortfeasor … from any further claims against the settling tortfeasor … for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).)

In evaluating whether a settlement has been made in good faith, courts consider the following factors, as set forth by the California Supreme Court in the landmark case Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488:

               1) “a rough approximation of plaintiffs’ total recovery”;

               2) “the settlor’s proportionate liability”;

               3) “the amount paid in settlement”;

      4) “the allocation of the settlement proceeds among plaintiffs”;

5) “a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial”;

               6) the settling party's “financial conditions and insurance policy limits”;

7) any evidence of “collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

(Id. at p. 499.) “Practical considerations obviously require that the evaluation be made on the basis of information available at the time of settlement.” (Ibid.)

The “good faith” concept in Code of Civil Procedure section 877.6 is a flexible principle imposing on reviewing courts the obligation to guard against the numerous ways in which the interests of nonsettling defendants may be unfairly prejudiced. (Rankin v. Curtis (1986) 183 Cal. App. 3d 939, 945.) Accordingly, under Tech-Bilt, the party asserting the lack of “good faith” may meet this burden by demonstrating that the settlement is so far "out of the ballpark" as to be inconsistent with the equitable objectives of the statute. (Tech-Bilt, supra, 38 Cal.3d at 499-500.) Such a demonstration would establish that the proposed settlement was not a “settlement made in good faith” within the terms of section 877.6. (Ibid.)

The Supreme Court explained that Code of Civil Procedure section 877.6 is designed to further two equitable policies:

1) encouragement of settlements; and

2) equitable allocation of costs among joint tortfeasors. 

(Ibid.) 

Those policies would not be served by an approach which emphasizes one to the virtual exclusion of the other. (Ibid.) Accordingly, a settlement will not be found in good faith unless the amount is reasonable in light of the settling tortfeasor's proportionate share of liability. (Std. Pac. of San Diego v. A. A. Baxter Corp. (1986) 176 Cal. App. 3d 577, 589.) Or, as the California Supreme Court has 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.” (Tech-Bilt, supra, 38 Cal.3d at 499.)

When a motion seeking a determination under Code of Civil Procedure section 877.6 is not opposed, the burden on the moving parties to show that the settlement was made in good faith is slight. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261 [holding that a “barebones motion” including a declaration setting forth “a brief background of the case is sufficient”].)

When a good faith motion is contested, however, the moving parties have the initial burden of producing evidence in support of the requested good faith determination. (Id. at pp. 1261-1262.) “Section 877.6 and Tech-Bilt require an evidentiary showing, through expert declarations or other means, that the proposed settlement is within the reasonable range permitted by the criterion of good faith.” (Mattco Forge v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1351.) “Substantial evidence” is required. (Id. at p. 1352.) A declaration from a settling defendant’s attorney that states, in conclusory fashion, that the client has little, or no share of the liability may not be sufficient. (Greshko v. County of Los Angeles (1987) 194 Cal.App.3d 822, 834-35; see also 3 Weil & Brown, California Practice Guide: Civil Procedure Before Trial (2024) ¶¶ 12:774, 12:872-873.) 

The ultimate burden of persuasion is on the party opposing the good faith determination.  The “party asserting a lack of good faith shall have the burden of proof on that issue.”  (Code Civ. Proc. § 877.6, subd. (d); see also 3 Weil & Brown, supra, at ¶ 12:875.)

Discussion

As a preliminary matter, the Court notes that Plaintiff, in his opposition, asks the Court to determine that his settlements with both Southwind and AAA are in good faith. Only Southwind, however, has filed an application for a good faith settlement determination.  As a result, the Court will address only Plaintiff’s settlement with Southwind.

Plaintiff alleges that he was injured in a bicycle accident due to the uneven surface of the road on July 27, 2019. (SAC, ¶¶ 21, 23.) Plaintiff has sued several parties, including Caltrans (the owner of the road), Southwind (the owner of the trees adjacent to the roadway), and SCTL (a landscaping company in charge of maintaining the trees owned by Southwind). (SAC, ¶¶ 6, 7, 9.)

At a mediation, Plaintiff and Southwind agreed to a settlement, and Southwind filed an application for a determination that the settlement is in good faith. SCTL filed a motion to contest the good faith determination. The Court must now consider and weigh the various factors set forth in Tech-Bilt and its progeny to determine whether the Southwind’s settlement with Plaintiff is a good faith settlement under Code of Civil Procedure section 877.6.

1.               Rough approximation of Plaintiff’s total recovery.

Plaintiff’s counsel reports that Plaintiff suffered severe injuries in the accident, including head trauma, traumatic hemorrhage with loss of consciousness, multiple facial fractures and lacerations, a fractured jaw, damage to several teeth, significant neurological damage, tear of the right medial meniscus, permanent scarring, and a traumatic brain injury resulting in permanent cognitive disorders including increased aggravation, frequent angry outbursts, difficulty maintaining personal relationships, an inability to focus, and significant memory deficits. (Pierry Decl., ¶ 3.) Plaintiff contends (based in part on an expert report shared with all defendants) that the roadway defect that Plaintiff encountered was caused by tree roots emanating from pine trees located on property that is immediately adjacent to Western Avenue. (Id., ¶ 4.) The property is owned by Southwind and the trees are inspected and trimmed by SCTL. (Ibid.)

SCTL and Plaintiff both state that Plaintiff has taken the position that his potential total recovery is $7 million. (Robles Decl., ¶ 18; Pierry Decl., ¶ 10.) Prior to the accident, Plaintiff was an accomplished electrical engineer and project manager for a major aerospace defense contractor; Plaintiff claims that the accident caused him to suffer more than $1.6 million in past and future loss of earning and more than $700,000 in past and future medical costs. (Opp. at p. 2.) If Plaintiff is successful at trial, he presumably could also recover substantial general damages. Plaintiff’s counsel states that Plaintiff made a global settlement demand to all defendants in the amount of $5 million. (Pierry Decl., ¶ 15.)

On this record, assuming that Plaintiff is successful at trial (and not discounting for any risk that Plaintiff might not prevail), and based on the information available at the time of settlement, the Court finds that a rough approximation of Plaintiff’s total recovery is $7 million.

2.               The settlor’s proportionate liability.

Southwind’s proportionate share of liability was uncertain at the time of the settlement, and remains so. Plaintiff’s injury occurred while he was riding a bicycle on a roadway owned and controlled by Caltrans. (Pierry Decl., ¶ 19.) The Legislature “has granted Caltrans full possession and control of all state highways” and “has designated Caltrans as the responsible agency for the design, construction, improvement, and maintenance” of state highways. (Union Pacific Railroad Co. v. Super. Ct. (2024) 105 Cal.App.5th 838, 862 [citing Streets & Highways Code sections 90-92].) Caltrans “is subject to a duty, upon receiving notice of a dangerous condition, to take such protective and remedial measures as may be reasonably practical for the safety of highway users.” (Ibid.) Caltrans, therefore, potentially has a large part of the proportionate liability in this case, particularly if Plaintiff can produce evidence that Caltrans had actual or constructive notice of a dangerous condition on the roadway.

Southwind’s potential liability turns on the issue of whether the roots of the trees on its property did in fact grow and extend into the area under the adjacent roadway and then cause or contribute to the creation and existence of a dangerous condition on Western Avenue. (Robles Decl., ¶ 3; Pierry Decl., ¶ 20.) Caltrans has not excavated the roadway to determine whether underground tree roots contributed to the defects on the surface. (Opp. at p. 8.) As SCTL’s counsel states, “To date no evidence has been produced demonstrating the existence of these ‘overgrown tree roots.’” (Robles Decl., ¶ 3.) “No evidence has been produced … evidencing that any tree roots exist beneath the roadway.” (Pierry Decl., ¶ 20 [quoting SCTL’s response to interrogatories].)

On this record, the Court finds that – based on the information available at the time of the settlement – Southwind’s proportionate liability was in the range of 20 to 30 percent. This takes into account the uncertainty regarding whether Plaintiff would be able to gather sufficient evidence to prove the “tree root” theory at the time of trial; if so, Southwind’s share of proportionate liability could be more, but, if not, Southwind’s potential liability would be zero.

3.               The amount paid in settlement.

Southwind has agreed to pay Plaintiff $900,000.

4.               The allocation of the settlement proceeds among plaintiffs.

As there is only one plaintiff, this factor does not apply here.

5.               A recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. 

This factor supports a good faith determination.

6.               The settling party’s financial conditions and insurance policy limits.

Plaintiff contends that Southwind has a $2 million insurance policy, plus an umbrella policy for with coverage of an additional $1 million. (Pierry Decl., ¶ 23.) This is not a situation in which a settling defendant argues that an otherwise out-of-the-ballpark settlement should be determined to be in good faith because of a limited ability to pay or a policy-limits settlement.

7.               Any evidence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.

There is no evidence of collusion, fraud, or tortious conduct on this record. The settlement was reached in mediation, and only after attempts to reach a global settlement of all defendants were unsuccessful. (Robles Decl., ¶¶ 6, 11; Pierry Decl., ¶¶ 8-12.)

The Court has considered all of the evidence in the record, all of the arguments from each side, and all of the Tech-Bilt factors. The Court concludes that SCTL has not met its burden under Code of Civil Procedure section 877.6, subdivision (d), of proving that the settlement was not in good faith. The Court gives particular weight to the rough approximation of Plaintiff’s total recovery, Southwind’s potential proportionate liability, the recognition that a settling defendant should pay less than it would pay if found liable at trial, and the absence of any evidence of collusion, fraud, or tortious conduct.

As set forth above, the Court finds that a rough approximation of Plaintiff’s total recovery is $7 million and Southwind’s proportionate liability is likely in the range of 20 to 30 percent – for $1.4 million to $2.1 million. Against that proportionate liability, the Court finds that a settlement of $900,000 is “in the ballpark” and a good faith settlement under Code of Civil Procedure section 877.6.

Conclusion

The Court DENIES Southern California Tree and Landscape, Inc.’s motion to contest Southwind’s application for the determination of good faith settlement.

The Court determines that the settlement between Plaintiff Anthony Bissonnette and Defendant Southwind Village Community Association, Inc. dba “The Cape” Homeowners Association is a good faith settlement under Code of Civil Procedure section 877.6.

Defendant Southwind is ordered to give notice.