Golden Bear Forest Products, Inc. v. Misale

Opinion

KAUFMAN, J. Cross-complainant Golden Bear Forest Products, Inc. (Golden Bear) appeals from a judgment dismissing Dominic Misale (Misale) as a cross-defendant pursuant to Code of Civil Procedure sections 877 and 877.6.1

[575]The action upon which the cross-complaint is based arose out of an incident which resulted in serious bodily injury to Ramon Mandujano. Mandujano was in his tent at the King Sol Campground owned by Canyon Park, Inc., and located near the CEDU Foundation, a rehabilitation school. Two wards of CEDU, Dominic Misale and Jon Edmondson, rolled a large truck tire down a hillside into the campground, striking Mandujano. Mandujano and his wife (plaintiffs) filed suit naming as defendants Canyon Park, Inc., CEDU, Golden Bear, and by subsequent amendment, Dominic Misale.

Golden Bear filed both an answer to the complaint and a cross-complaint for indemnity naming as cross-defendants Canyon Park, Inc., CEDU, and by subsequent amendment, Misale.

Thereafter plaintiffs and CEDU negotiated a settlement in an amount exceeding $1 million which purported to cover not only the liability of CEDU but also that of Misale. The lengthy negotiations leading up to the settlement involved counsel for plaintiffs, counsel for CEDU and various rehabilitation experts, economists and representatives from CEDU’s insurers.

Following the settlement agreement Misale filed a motion pursuant to Code of Civil Procedure section 877.6, requesting a declaration the settlement had been made in good faith and an order dismissing him from the action. Both requests were granted.

Discussion

Golden Bear’s challenge of the judgment of dismissal is based primarily on two arguments. First, it is urged Misale was not a party to the settlement agreement and therefore is not entitled to dismissal under the statute. Second, even if Misale was a party to the agreement, his release was not the result of a good faith settlement. In each instance the determination of the trial court to the contrary is sound.

It is true that the agreement was not signed by Misale or his attorney of record and that several early provisions in the agreement omit his name. However, it is clear the parties intended to include both CEDU and Misale in the settlement. The agreement expressly releases and discharges Misale: “[Tjhis Agreement . . . shall release, acquit and forever discharge CEDU Foundation, Inc. and all its past and present officers, directors and employees, and Dominic Misale and Jon Edmondson . . . from any and all claims, actions, causes of action, demands . . . arising out of the accident. ...”