Case Name: Avila, et al. v. Chacon, et al.

Case No.: 1-13-CV-245894

Cross-Defendant Oscar Chacon moves for a determination that his settlement with Plaintiffs Ilidio Avila, Angelina Avila, and minors Sonny Avila, Dominic Avila, and Jovina Avila, was entered in good faith pursuant to California Code of Civil Procedure §§ 877 and 877.6(a)(1), and that any claims for indemnification by Defendant City of San Jose be dismissed.  The City opposes the motion and asks in the alternative that the City receive a $30,000 set-off pursuant to CCP § 877(a).

This case arises from an auto accident where Chacon struck Plaintiff Ilidio Avila, with other Plaintiffs all witnessing the accident.  Plaintiffs filed suit on May 7, 2013, naming as defendants Chacon, Mayra Ortega and Blanca Martinez. (Coates Decl. Ex. B.)  Chacon, Ortega and Martinez settled with Plaintiffs for $30,000, the full proceeds available under the only available policy of insurance.  (Coates Decl. Ex. D ¶ 4.)   On October 2, 2013, Plaintiffs released Chacon, Ortega and Martinez. (Coates Decl. Ex. G.)  A check for $30,000 was sent to Plaintiffs on October 18, 2013.  (Coates Decl. Ex. H.)

On October 3, 2013, Plaintiffs amended their complaint to add the City. On December 18, 2013, the City filed a cross-complaint against Chacon for indemnity. (Coates Decl. Ex. I.)

On February 19, 2014, Chacon applied for a determination of the good faith of his settlement with Plaintiffs.  On March 24, 2014, the City opposed Chacon’s application, and on April 17, 2014, the City’s motion was granted and Chacon’s application was denied.

On May 27, 2014, Plaintiffs’ complaint against Chacon, Ortega and Martinez was dismissed. (Coates Decl. Ex. K.)

On June 9, 2014, Chacon filed this motion, disclosing nowhere in the moving papers that a previous application for the same relief had been made and denied.

“A party who originally made an application for an order which was refused […] may make subsequent application for the same order upon new of different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, and what order or decisions were made, and what new or different facts, circumstances or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex part motion.” (Cal. Code Civ. Proc., § 1008(b).)  When these statutory requirements are not met, the renewal motion must be denied.  (Cal. Code Civ. Proc., § 1008(e): “No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”)

The motion is denied.