Henderson v. Superior Court

Opinion

KINGSLEY, Acting P. J.

These two cases arise out of the same incident, involving two “gangs.” After a confrontation, real party in interest (Zimmelman) drove his automobile into a group of members of the other gang, injuring, inter alia, John Fallon. John Fallon sued Zimmelman, his parents and other members of the gang to which Zimmelman belonged. Zimmelman cross-complained against petitioners Henderson and Karen Fallon, alleging

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an attack by Henderson on him, resulting in injuries, and alleging that his conduct was no more than an attempt to escape from further assaults by Henderson and other members of the gang. Petitioner Fallon is alleged to have aided Henderson in the assault on Zimmelman.

Eventually counsel for Henderson and Karen Fallon agreed with counsel for John Fallon to settle any claims of John Fallon against petitioners for the payment of $10,000 by Henderson and the payment of $8,000 by Karen Fallon.

Proceedings were brought by Henderson and Fallon seeking a determination of good faith as to both settlement agreements. The trial court found the settlements to be in bad faith and these proceedings in mandate followed. We hold that the agreements were collusive within the meaning of the cases dealing with the issue of good faith and therefore deny the petitions, leaving the parties to litigate the issue of liability among themselves.

I

We reject the contention of the real party that the settlements are not in good faith because no money has yet been paid or made available to Henderson or Karen.

At oral argument, counsel for the petitioners expressly stated that they considered themselves professionally obligated to see that the $18,000 were paid to John Fallon if a finding of good faith were made. We can see no defect in that procedure. It may be that some settlors are able and willing to pay over money, or to put it in some kind of escrow, pending final action by a court on the issue of good faith. But where, as here, both parties to a settlement agreement bring the good faith proceeding in reliance on its being consummated if approved, the trial court can, and should, determine the issue on its merits.