Case Number: BC615449 Hearing Date: June 05, 2018 Dept: 4

MOVING PARTY: Defendant and cross-defendant Gabriel Jimenez, Jr.

RESPONDING PARTY: Defendant and cross-complainant Rachid Akkari

The court considered the moving papers, defendant Akkari’s opposition to the application, and plaintiff’s “opposition” to Akkari’s opposition.

BACKGROUND

On April 1, 2016, plaintiff George Nua filed a complaint against Gabriel Jimenez Jr., Rachid Akkari, and Noho Airport Transportation, Inc. for motor vehicle negligence based on an incident that occurred on April 9, 2014 (as to Jimenez) and an incident that occurred on June 27, 2015 (as to Akkari and Noho Airport Transportation).

On June 23, 2016, Akkari filed a cross-complaint against Jimenez for equitable indemnification, contribution, declaratory relief, and apportionment of fault.

On August 25, 2017, National Casualty Co. on behalf of suspended corporation Noho Airport Transportation filed a complaint in intervention.

On February 27, 2018, Jimenez filed an application for determination of good faith settlement.

DISCUSSION

Defendant and cross-defendant Gabriel Jimenez, Jr. requests that the court determine that the settlement between plaintiff and defendant Jimenez was made in good faith and to dismiss all claims against Jimenez made by any joint tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” IRM Corp. v. Carlson (1986) 179 Cal. App. 3d 94, 104.

CCP § 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or . . . and one or more alleged tortfeasors or co-obligors . . . .” “A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor 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.” CCP § 877.6(c). Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. CCP § 877(a).

“The party asserting the lack of good faith shall have the burden of proof on that issue.” CCP § 877.6(d).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs’ total recovery and the settlor’s proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” Tech-Bilt, 38 Cal.3d at 499. “‘[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.’ [Citation.]” Id. at 499.

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” Tech-Bilt, 38 Cal.3d at 499-500.

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .).” TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166. “Accordingly, a court not only looks at the alleged tortfeasor’s potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” Id. at 166.

This action arises out of two separate auto collisions. According to defendant Jimenez, the first collision occurred on April 9, 2014 and involved Jimenez. The damage to plaintiff’s vehicle totaled $1,789. The second collision occurred on June 27, 2015, when plaintiff was rear-ended by a vehicle driven by defendant Akkari. The damage to plaintiff’s vehicle totaled $8,577.

Jimenez contends that plaintiff is claiming neck and back injuries from both accidents. In his discovery responses, plaintiff stated that he was treated with physical therapy and a lumbar epidural injection on February 25, 2015, “after which his pain improved significantly and he was able to discontinue his pain medication.” After the second accident, plaintiff contends that his neck and back pain worsened considerably and MRIs revealed chronic mild compression fracture at T7 and T10 and a probable old fracture at T3. He was recommended spinal surgery for his chronic back and neck pain. Plaintiff’s records indicate that he has had back pain beginning in 2006.

Further, Jimenez contends, plaintiff’s records indicate that following the first accident, plaintiff was referred to physical therapy for the upper back for twelve weeks. He was discharged on June 24, 2014 because he did not keep his physical therapy appointments. X-rays taken on July 1, 2014 showed stable mild anterolisthesis of L5 in relation to S1, without change since prior lumbar MRI examination in 2008. Degenerative changes were seen at L5-S1 level. After the second accident, on July 21, 2015, he was treated with a lumbar epidural steroid injection. On November 11, 2016, he underwent a lumbar decompression surgery with fusion of L4 through S1 level.

In opposition, defendant Akkari contends that plaintiff has a history of back injuries, and that he has been a surgical candidate since 2009. Further, according to expert Judson Welcher, based on information that he was able to obtain from the crash data recorder, he opines that the April 9, 2014 accident was equal to or greater in severity than the second accident on June 27, 2015. He also contends that plaintiff’s medical specials are $300,000. In response, plaintiff counters that Akkari’s billing cost expert reduced the “reasonable” medical costs to $156,000.

Thus, as to the first factor, a rough approximation of plaintiff’s total recovery is approximately $156,000 to $300,000 in medical specials plus general damages.

Second, as to Jimenez’s proportionate liability, both defendants acknowledge their respective liability for the accidents and that both caused plaintiff personal injuries. Plaintiff states in his response to Akkari’s opposition that he has retained two experts who will confirm that the 2015 accident was twice the impact as that absorbed by plaintiff in the 2014 accident.

Third, as to the amount paid in settlement, defendant Jimenez agreed to pay $100,000.

Fourth, as to the allocation of settlement proceeds, there is only one plaintiff.

Fifth, the court recognizes that defendant should pay less in settlement than if it were found liable after a trial.

Sixth, as to defendant’s financial condition and insurance policy limits, Jimenez does not address but Akkari contends the policy limits are $1 million.

Seventh, there is no evidence of collusion, fraud, or tortious conduct aimed to injure the interests of Akkari.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between plaintiff and defendant Jimenez was made in good faith within the meaning of CCP § 877.6. Therefore, the motion is GRANTED.

The court orders that any joint tortfeasor or co-obligor to this action is hereby barred from initiating or maintaining any claims against defendant Jimenez. The cross-complaint filed on June 23, 2016 and the complaint-in-intervention filed on August 25, 2017 against Jimenez are DISMISSED.

Defendant Jimenez is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 5, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court