Nemat Maleksalehi et al vs Baudeli Plastering, Inc. et al

Under Code of Civil Procedure section 877(a)(2): “In the alternative a settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The application shall indicate the settling parties, and the basis, terms, and amount of the settlement. 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.

Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a non-settling party may file a notice of motion to contest the good faith of the settlement. If none of the non-settling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement. The notice by a non-settling party shall be given in the manner provided in subdivision (b) of Section 1005.

However, this paragraph shall not apply to settlements in which a confidentiality agreement has been entered into regarding the case or the terms of the settlement.

The court also considers the factors set forth in Tech-Built, Inc. that include: (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”; and (7) any evidence of “collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” (Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d at 499).

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

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. (Id.). Pursuant to California Code of Civil Procedure, section 877.6(c), “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or coobligor 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.”

Section (d) provides that the party asserting the lack of good faith shall have the burden of proof on that issue. “Good faith may be found only if there has been no collusion between the settling parties and where the settlement amount appears to be

within the ‘reasonable range’ of the settling party’s proportionate share of comparative liability for a plaintiff’s injuries. (North County Contractor’s Assn. v. Touchstone Ins. Services (1994) 27 Cal.App.,4th 1085, 1089-1090).

When a good faith motion is contested, the moving parties bears the initial burden of producing evidence in support of the requested good faith determination. “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 (The Rutter Group 2023) ¶¶ 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(d); see also 3 Weil & Brown, supra, at ¶ 12:875).

The law favors settlements. (Potter v. Pacific Coast Lumber Co., (1951) 37 Cal.2d 592, 602. Settlement agreements “are highly favored as productive of peace and goodwill in the community, and reducing the expense and persistency of litigation.” (McClure v. McClure (1935) 100 Cal. 339, 343). Indeed, it has been said that a major goal of section 877 is the ‘encouragement of settlements.’ (Insurance Co. of North America v. United States Fire Ins. Co., (1973) 34 Cal.App.3d 391, 396). Courts have made it clear that it is only under “rare” circumstances that a settlement will be found to be in bad faith. (Stambaugh v. Pacific Gas and Electric Company (1976) 62 Cal.App.3d 231, 238; Kohn v. Superior Court (Horn) (1983) 142 Cal.App.3d 323, 327).

III. ANALYSIS Here, Defendant TBS seeks to enforce the settlement between TBS and the plaintiff for $10,000.00 (“Settlement Amount”) as it meets the Tech-Bilt factors and is not disproportionate or out of the ballpark. TBS and the plaintiff reached this settlement with the assistance by mediator Bob Bellagamba (Declaration of Nora R. Boardman, p.8). Defendant TBS asserts that the scope of work in the construction of the plaintiff’s’ residence was limited to providing windows. (TBS’s motion, p. 3).

TBS avers that the plaintiff’s do not have any allegations against the windows that were delivered. (Id., at p. 5). TBS was not responsible for installation of the windows. (Id., at p. 4). However, TBS seeks to resolve the matter and reached a settlement with the plaintiff and provided notice to nonsettling parties. TBS asserts that due to its limited role in construction and no allegations against the windows that were delivered, the Settlement Amount is not grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate Defendant TBS’s liability to be in this matter. (Id.).

TBS asserts that there is no evidence of collusion, fraud, or tortious conduct aimed at injuring the non-settling defendants. Therefore, the early resolution between the plaintiff and TBS reflect a reasonable range or within-the-ballpark test. (Tech-Bilt, supra, 38 Cal.3d at 499-500).

The motion is unopposed. Code of Civil Procedure section 877(a)(2) requires an opposition by any non-settling parties within 25 days of mail notice. A failure to oppose a motion may be deemed a consent to the granting of the motion. California Rule of Court Rule 8.54c. A failure to oppose a motion may be deemed a consent to the granting of the motion. (California Rule of Court Rule 8.54(c)). Failure to oppose a motion leads to the presumption that the defendant has no meritorious arguments. (Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 489). Thus, there has been no showing that the settlement between the plaintiffs and Defendant TBS was not made in good faith.

The Court finds that the moving/party Defendant TBS has met its burden.

IV. CONCLUSION

Based on the foregoing, the motion for determination of good faith settlement between the plaintiffs and Defendant TBS is GRANTED. The Court will prepare the Order.

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