Case Number: BC471183 Hearing Date: May 21, 2014 Dept: 34

Moving Party: Defendants Howard D. Pilch, Law Offices of Howard D. Pilch (“Pilch”)

Resp. Party: None

The Motion for Good Faith Settlement is GRANTED.

BACKGROUND:

Plaintiff commenced this action on October 7, 2011, against defendants alleging six causes of action: (1) attorney malpractice; (2) attorney malpractice; (3) attorney malpractice; (4) attorney malpractice; (5) breach of trust; and (6) negligence. Plaintiff filed a second amended complaint on June 22, 2012, after the Court granted defendants’ motion to strike. Plaintiff’s second amended complaint added two causes of action for breach of fiduciary duty and fraud; however, the Court had not granted plaintiff leave to amend to add causes of action. After obtaining leave to amend, plaintiff filed a third amended complaint alleging the same causes of action alleged in the second amended complaint.

After the Court sustained defendants’ demurrer to the third amended complaint, plaintiff filed a fourth amended complaint (“4AC”) on October 15, 2012. The 4AC included causes of action for: (1) attorney malpractice; (2) attorney malpractice; (3) attorney malpractice; (4) breach of trust; (5) breach of fiduciary duty; (6) fraud; and (7) negligence. The fourth through seventh causes of action are alleged against Pilch.

The underlying action in this case was a family law case involving a controversy over property acquired during a cohabitation period between Plaintiff and another individual. (4AC ¶ 24.) Pilch was not plaintiff’s attorney in the underlying action; instead, Pilch represented the opposing party, Alex Ng. (See id., ¶ 45.) Plaintiff claims that Pilch improperly caused six Notices of Withdrawal of pendency of action to be filed in connection with an underlying marital dissolution action. (See id., ¶¶ 66-74.) Plaintiff alleges that her attorney in the underlying action intended Pilch to record the Notices of Withdrawal only after the underlying parties executed and signed a stipulated judgment. (Ibid.) Plaintiff claims that Pilch had a duty to safeguard the Notices and breached this duty by causing the Notices to be recorded with the County Recorder, notwithstanding the absence of a stipulated judgment. (Id., ¶¶ 79-80.)

On 8/20/13, the Court granted a motion for summary judgment by the Pittullo defendants.

On 11/12/13, the Court denied a motion for summary judgment by the Hagan defendants.

On 4/8/14, the Court denied a motion for summary judgment by the Stolar defendants, and continued a motion for summary judgment by the Pilch defendants.

ANALYSIS:

“Any party to an action in which 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 other claimant and one or more alleged tortfeasors or co-obligors, upon giving notice in the manner provided in subdivision (b) of Section 1005.” (Code Civ. Proc., § 877.6(a)(1).)

A “determination by the court that the settlement was made in good faith shall bar 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(c).)

The factors considered in determining good faith include: the rough approximation of plaintiff’s total recovery and settlor’s proportionate liability; the amount paid in settlement; the allocation of settlement proceeds among the plaintiffs; a recognition that a settlor should pay less in settlement than if found liable after a trial; the settlor’s financial condition and insurance limits; and evidence of collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share. (Tech Bilt, Inc. v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, 499.)

Where an application is opposed, the moving party must show by competent evidence all Tech Bilt factors. (Mediplex of Cal. v. Sup. Ct. (1995) 34 Cal.App.4th 748, 753 n.4; Greshko v. Los Angeles (1987) 194 Cal.App.3d 822.) “[T]he determination whether the settlement was in good faith must be based on competent, admissible evidence.” (Brehm Communities v. Sup. Ct. (2001) 88 Cal.App.4th 730, 736.) A determination of a good faith settlement must be supported by substantial evidence. (Norco Delivery Service, Inc. v. Owens Corning Fiberglas (1998) 64 Cal.App.4th 955, 962.)

The instant motion is unopposed. Pilch describes the settlement efforts between the parties. (Pilch Decl., ¶ 12.) On the day before the summary judgment motion was heard, Pilch’s counsel sent a settlement demand to plaintiff which offered to waive all claims for fees and costs in exchange for plaintiff’s dismissal of the action with prejudice. (Id., ¶ 13.) Plaintiff accepted this offer. (Ibid.) The parties have agreed to dismiss and release all claims against each other arising out of the instant action and to bear their own costs of litigation. (Id., ¶ 14.) Pilch believes the settlement reflects a reasonable approximation of Pilch’s liability because he has meritorious defenses and would likely pursue a claim for malicious prosecution against plaintiff if he prevailed. (Id., ¶ 15.) Pilch declares there was no collusion, fraud, or tortious conduct relating to the settlement negotiations and that they were conducted at arm’s length. (Id., ¶ 16.) As indicated above, there is no opposition; this settlement appears reasonable.

The Motion is GRANTED.