Alyssa Nuno v. Santa Barbara Adventure Company, Inc., et al.
Case No: 18CV00988
Hearing Date: Tue Jun 18, 2019 9:30

Nature of Proceedings: Motion Contest Good Faith Settlement; Motion Good Faith Settlement (2)

Motions (3) for Good Faith Settlement Determination

ATTORNEYS:

Ryan D. Harris for Plaintiff Alyssa Nuno, a minor, by and through her Guardian Ad Litem, Sandra Alamillo

Gregory J. Bramlage for Defendants Nancy Kaplan and Paddlers, Inc.

Paul V. Ash for Defendant Marc Medina

Jennie Barkinskaya for Defendant Tom Shultz

RULING: The motion of defendants Nancy Kaplan and Paddlers, Inc. for good faith settlement determination is granted. The motion of defendant Marc Medina for good faith settlement determination is granted. The motion of defendant Tom Shultz for good faith settlement determination is granted. Any and all present or future claims for equitable or comparative indemnity or contribution against the settling defendants are dismissed and barred.

BACKGROUND:

On September 3, 2017, a rare and intense storm event known as a “microburst” occurred on West Beach in Santa Barbara, creating 80 mile per hour wind gusts and heavy rain that sent umbrellas, kayaks, and other watercraft flying through the air. The microburst lasted only a couple of minutes. Plaintiff Alyssa Nuno, then age 16, was at West Beach celebrating the Labor Day holiday with family and friends when the microburst hit the beach. Plaintiff ran for cover and was allegedly struck in the head and knocked unconscious by one or more kayaks that had been tossed about in the storm. On the date of the incident, there were various watercraft, along with watercraft racks, on the beach near the accident site. Plaintiff has no memory of being struck by an object during the storm as her next memory was waking up in a hospital approximately two months later. Plaintiff’s claimed medical specials are $728,603.00.

Plaintiff filed her complaint on February 27, 2018, alleging causes of action for dangerous condition of public property and negligence. Defendants include the City of Santa Barbara; Paddlers, Inc., a non-profit corporation established to help people with disabilities participate in the sport of paddling; Nancy Kaplan, the president of Paddlers; and Marc Medina, Tom Shultz, Mike Long, Richard Labgaa, and Victor DiNovi, all owners of watercraft on West Beach at the time of the subject incident. On May 8, 2019, the parties mediated the matter before Judge Elinor R. Reiner. Defendants Paddlers, Kaplan, Medina, and Shultz each settled with plaintiff, subject to the Court’s determination that the settlements were reached in good faith, leaving City, Long, Labgaa, and DiNovi as the sole remaining unsettled defendants.

In three separate motions, Paddlers, Kaplan, Medina, and Shultz now move the Court for an order determining the settlements to be in good faith. There is no filed opposition to the motions.

ANALYSIS:

The California Code of Civil Procedure allows the court to determine whether a settlement was made in good faith. Specifically, Code of Civil Procedure Section 877.6, subdivision (a)(1), provides:

“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 . . . .”

Further, Code of Civil Procedure Section 877.6, subdivision (c), provides that a good faith settlement cuts off the rights of other defendants or cross-complainants to seek contribution or comparative equitable indemnity from the settling defendant. The section states:

“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.”

Lastly, “[t]he party asserting the lack of good faith shall have the burden of proof on that issue.” Code Civ. Proc. §877.6, subd. (d).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the California Supreme Court outlined the factors for determining whether a settlement is in good faith.

These factors include the amount of the settlement, the settling defendant’s proportionate share of liability, and a recognition that a settlor should pay less in settlement than it would if it were found liable after a trial. Id., at 499-500. Other relevant considerations include the financial condition and insurance policy limits of the settling defendant, as well as the existence of collusion, fraud, or tortious conduct aimed at injuring the interests of the non-settling defendants. Ibid. However, only when the good faith nature of a settlement is disputed is it incumbent upon the court to consider and weigh the Tech-Bilt factors. City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261. Thus, when no one objects, “the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.” Ibid.

Defendants Paddlers, Kaplan, Medina, and Shultz have each settled with plaintiff and have filed motions for good faith settlement determination pursuant to Code of Civil Procedure Section 877.6. As to each of these motions, the Court rules:

1. Kaplan and Paddlers Good Faith Settlement Motion

Plaintiff has agreed to accept $15,000.00 in exchange for a dismissal with prejudice of her complaint as to defendants Kaplan and Paddlers. The sole cause of action asserted against Kaplan and Paddlers is for negligence. “To prevail in an action for negligence, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff’s injuries.” John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188. In determining whether one owes a duty of care, the courts consider various factors, including “[the] foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, [and] the closeness of the connection between the defendant’s conduct and the injury suffered . . . .” Peterson v. San Francisco Community College District (1984) 36 Cal.3d 799, 806.

Plaintiff has testified that she does not know how she was injured, whether she was hit by a boat or a boat rack, as alleged in the complaint, or whether she was picked up by a gust of wind and thrown against something. (Bramlage Dec., ¶8, Ex. G, Deposition of Alyssa Nuno, pp. 63:20-22, 72:17-20.) The last thing plaintiff remembers is running for cover. (Bramlage Dec., ¶8, Ex. G, Deposition of Alyssa Nuno, pp. 48:3-49:23.) Plaintiff’s mother remembered that the wind “came from nowhere” and that it pushed her and her husband to the ground and prevented them from moving. (Bramlage Dec., ¶3, Ex. B, Deposition of Sandra Alamillo, pp. 48:5-10, 52:2-13.) Plaintiff’s aunt testified that she and others were pushed over by what she described as “a tornado kind of thing, where everything was flying all over the place.” (Bramlage Dec., ¶5, Ex. D, Deposition of Monique Martinez, p. 24:21-23.) Defendant DiNovi testified that the wind moved his 310 pound, 6-person canoe approximately 120 feet. (Bramlage Dec., ¶7, Ex. F, Deposition of Victor DiNovi, p. 58:7-10.)

For a settlement to be in “good faith,” it must be within the “reasonable range” (i.e., within the “ballpark”) of the settling defendant’s share of liability for the plaintiff’s injuries. Tech-Bilt, Inc. v. Woodward-Clyde & Associates, supra, 38 Cal.3d 488, 499. “This is not to say that bad faith is established by a showing that a settling defendant paid less than his theoretical proportionate or fair share. [Citation.] Such a rule would unduly discourage settlements [as] damages are often speculative, and the probability of legal liability therefor is often uncertain or remote. . . . Moreover, such a rule would tend to convert the pretrial settlement approval procedure into a full-scale minitrial.” Id. Thus, a good faith settlement does not require perfect or nearly perfect apportionment of liability. Instead, only a rough approximation between a settling party’s offer and its proportionate liability is necessary in order to support a finding of good faith. Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1028.

Here, the Court finds that the $15,000.00 settlement is not disproportionately low considering that there is no evidence that Kaplan or Paddlers breached a duty of care to plaintiff or that a kayak or boat owned, controlled, or maintained by the settling defendants caused plaintiff’s injuries. Plaintiff does not know how she was injured. Moreover, even if it could be shown that Kaplan and Paddlers were negligent, there is compelling evidence that the tornado-like wind that struck West Beach was a superseding cause of plaintiff’s injuries. A natural event will be deemed an “act of God,” and thus a superseding cause, if it was “so unusual in its proportions that it could not have been anticipated by a defendant.” Mancuso v. Southern California Edison Company (1991) 232 Cal.App.3d 88, 104. More than one witness has testified that the storm that struck West Beach on September 3, 2017, was extremely severe and could not reasonably have been anticipated.

Accordingly, the Court finds that the settlement between Kaplan, Paddlers, and plaintiff constitutes a good faith settlement, barring any and all claims for indemnity or contribution against the settling defendants.

2. Medina Good Faith Settlement Motion

Defendant Medina has entered into a settlement with plaintiff in the amount of $12,500.00 that resolves all claims against him. (Chan Dec., ¶11, Ex. A, Release of All Claims.) In her complaint, plaintiff alleges that she was injured after being struck in the head by a kayak or other type of watercraft owned, controlled, or maintained by one of more of the individual defendants. (Complaint, ¶19.) Medina owned one personal watercraft (an outrigger canoe) that he stored at West Beach pursuant to a permit issued by the City of Santa Barbara. (Medina Dec., ¶4.) However, Medina was not present on West Beach at the time of the microburst storm. (Medina Dec., ¶5.) After the storm, Medina went to West Beach and found his watercraft, which was in a gray cover, still attached to the rack on which it was secured. (Medina Dec., ¶8.) No evidence has been presented that any watercraft or rack owned or maintained by Medina ever made contact with plaintiff.

Despite the lack of any apparent liability on his part, Medina entered into a settlement with plaintiff “to buy his peace and to avoid further litigation costs.” (Motion, p. 3:12-13.) The Court finds that the settlement between plaintiff and Medina is in good faith as the settlement sum of $12,500.00 is within the reasonable range of defendant’s potential liability, which is minimal.

3. Shultz Good Faith Settlement Motion

During the mediation on May 8, 2019, defendant Shultz reached a settlement with plaintiff in the amount of $20,000.00. (Barkinskaya Dec., ¶3, Ex. A, Release of All Claims.) Although plaintiff suffered serious injuries in the subject incident, she has not presented any evidence that any item owned, maintained, or controlled by Shultz struck or came into contact with her during the intense storm that occurred on West Beach on September 3, 2017. Shultz was not at West Beach at the time of the storm. (Shultz Dec., ¶5.) On the date of the incident, Shultz owned and maintained a black and green OC1 Pueo (brand) outrigger canoe that was stored on a rack on West Beach pursuant to a valid permit with the City of Santa Barbara. (Shultz Dec., ¶3.) The outrigger was secured to the rack with two metal cables and a combination lock. (Shultz Dec., ¶6.) After the storm, Shultz went to West Beach and found that neither his OC1 outrigger nor the rack had been moved from the general vicinity where they are normally maintained. (Shultz Dec., ¶10.) Shultz has never received information from any source that his OC1 outrigger struck plaintiff on the date of the incident or that anyone witnessed his outrigger strike plaintiff. (Shultz Dec., ¶¶ 13, 14.)

The Court finds that the settlement reached between plaintiff and Shultz in the amount of $20,000.00 is reasonable and in good faith given that Shultz’s proportionate liability is minimal. Shultz’s outrigger was tied down and secured to a rack with two metal cables and a lock. No witness has testified that Shultz’s property came into contact with plaintiff on the date of the incident causing her injuries.