Case Number: GC046654 Hearing Date: June 06, 2014 Dept: A

Zheng v SPF 888 Walnut Pasadena

MOTION FOR DETERMINATION OF
GOOD FAITH SETTLEMENT

Calendar: 16
Case No: GC046654
Date: 6/6/14

MP: Defendant, R.E. Wall & Associates
RP: Defendants, SPF 888 Walnut Pasadena, LLC, and IDS Real Estate Group.

RELIEF REQUESTED:
Order finding that the settlement between the Plaintiff, Diehang Zheng, and the Defendant, R.E. Wall & Associates, is a good faith settlement under CCP section 877.6.

DISCUSSION:
This case arises from the claim of the Plaintiff, Diehang Zheng, that the she suffered personal injuries when she tripped and fell over a wheel stop in a parking garage at 888 E. Walmut St., Pasadena on January 26, 2009. The Plaintiff claims that the Defendants are liable because they failed to distinguish the wheel stop from the ground and failed to provide reasonable lighting. In addition, the Plaintiff claims that the Defendants directed foot traffic into the wheel stop.
A picture of the wheel stop is in exhibit B to the Defendant’s motion. The wheel stop was placed between a handicapped parking spot and a non-handicapped parking spot. Although the wheel stop is painted white in the photograph, the Plaintiff testified that it was not white and that it was the same color as the surrounding concrete when she tripped and fell (see Plaintiff’s deposition, exhibit C; 62:12 to 18).

This hearing concerns the motion of Defendant, R.E. Wall & Associates, for an order finding that the settlement with the Plaintiff is a good faith settlement under CCP section 877.6. CCP section 877.6 permits the Court to evaluate a settlement made between a plaintiff and a defendant when the defendant is a joint tortfeasor with other non-settling defendants. A determination that their settlement is a good faith settlement under CCP section 877.6 will bar any claims for equitable contribution or comparative indemnity.
When a motion seeking a determination under CCP section 877.6 is not opposed, the burden on the moving parties to show that the settlement was made in good faith is slight. City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261 (holding that a barebones motion including a declaration setting forth a brief background is sufficient). However, when the motion is contested, then the moving parties must make a sufficient showing in the moving papers or in the reply papers. Id. at 1262 (holding that evidence showing a lack of good faith requires the moving party to provide evidence to negate the lack of good faith asserted by the contesting party). CCP section 877.6(d) then imposes the burden of showing that the settlement was not made in good faith on the contesting party.

Here, the motion is opposed by Defendants, SPF 888 Walnut Pasadena, LLC, and IDS Real Estate Group. Accordingly, the motion of Defendant, R.E. Wall & Associates, must make a sufficient showing to demonstrate that it complies with CCP section 877.6.

In order to determine whether the settlement was made in good faith under CCP section 877.6, the Court applies the following factors identified by the California Supreme Court in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488 to determine whether the settlement amount is “in the ballpark” of the settling party’s share of liability for the injuries:

1) a rough approximation of the plaintiff’s total recovery;
2) an approximation of the settling party’s share of the liability;
3) recognition that a settling party should pay less in settlement than if found liable after
a trial;
4) the allocation of the settlement proceeds among plaintiffs;
5) the settling party’s financial condition and insurance policy limits;
6) evidence that the plaintiff and the settling party acted with an intent to make the non-settling parties pay more than their fair share (considered fraud and collusion under Tech-Bilt).

The “good faith” concept in CCP section 877.6 is a flexible principle imposing on reviewing courts the obligation to guard against the numerous ways in which the interests of nonsettling defendants may be unfairly prejudiced. Rankin v. Curtis (1986) 183 Cal. App. 3d 939, 945. Accordingly, under Tech-Bilt, the party asserting the lack of “good faith” may meet this burden by demonstrating that the settlement is so far “out of the ballpark” as to be inconsistent with the equitable objectives of the statute. Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488, 499-500. Such a demonstration would establish that the proposed settlement was not a “settlement made in good faith” within the terms of section 877.6. Id.
The Supreme Court explained that CCP section 877.6 is designed to further two equitable policies: 1) encouragement of settlements and 2) equitable allocation of costs among joint tortfeasors. Id. Those policies would be not be served by an approach which emphasizes one to the virtual exclusion of the other. Id. Accordingly, a settlement will not be found in good faith unless the amount is reasonable in light of the settling tortfeasor’s proportionate share of liability. Std. Pac. of San Diego v. A. A. Baxter Corp. (1986) 176 Cal. App. 3d 577, 589.

The Defendants provides facts in discovery responses and deposition testimony. The following analyzes whether the Defendant has met his burden with regards to the Tech-Bilt factors:

1) A rough approximation of the plaintiff’s total recovery
The Defendant offers no evidence regarding the Plaintiff’s total recovery. Instead, it offers argument on page 8 that the Plaintiff’s estimated damages are between $200,000 to $400,000. The Defendant directs the Court to no evidence that supports this claim.
In the opposition, the Defendants state that the Plaintiff’s settlement demand was $850,000. Again, there is no evidence upon which the Court could make any finding as to the approximate amount of the Plaintiff’s likely total recovery.
Accordingly, Defendant has not provided sufficient facts to identify a rough approximation of the Plaintiff’s total recovery.

2) An approximation of the settling party’s share of the liability
Here, Plaintiff is claiming that the Defendants caused her personal injuries by negligently designing and maintaining the parking lot and the wheel stop over which she tripped. The Defendant, R&E Wall & Associates, designs electrical systems for buildings. The Plaintiff claims that the area was not well lit. At her deposition, the Plaintiff testified that at the time of her trip and fell, the lighting not as bright as depicted in photographs of the parking lot (see exhibit C; 62:12 to 64:21).

The Defendant argues on page 8, at line 20, that its proportional liability is “in all probability” zero. This is based on arguments that it does not own or control the property, that it was not involved in the construction of the property, and that it did not install the light fixtures or light bulbs. However, the Defendant does not offer the facts needed to support this conclusions.
Instead, the Defendant offers the deposition testimony of Forrest Petersen (see exhibit E). Mr. Petersen is an engineer employed by the Defendant and he provides facts regarding the work done by the Defendant on the building. Mr. Peterson states that the illumination in the area where the Plaintiff fell was tested at “6.0” and that it was adequate for walking through a parking lot (exhibit E: 51:16 to 53:7).
This test occurred in 2007 and a copy of the report dated November 6, 2007 is in exhibit F. The report indicates that light levels in the drive isles and unoccupied parking stalls are sufficient. However, it also indicates that the light levels in occupied parking stalls are significantly lower because the stalls were not finished, fixtures were placed behind parking stalls, and a number of light fixtures were not operating.
This indicates that, in the opinion of Mr. Petersen, the lighting in 2007 was sufficient. It does not indicate that the lighting was sufficient on January 26, 2009 when the Plaintiff tripped and fell. For example, the Plaintiff testified at her deposition that the wheel stop was the same color as the surrounding concrete (exhibit C, 62:12 to 19). There are no facts indicating that the lighting was sufficient for a pedestrian walking through a parking lot containing wheel stops that were the same color as the surrounding concrete.

Accordingly, the Defendant has not provided sufficient evidence of its share of liability.

3) recognition that a settling party should pay less in settlement than if found liable after a trial
Since the Defendant is offering to pay an amount before trial, it should pay less than a potential verdict, if the matter proceeded to trial and the jury found in favor of the Plaintiff. However, since the Defendant did not provide sufficient facts regarding the Plaintiff’s approximate total recovery or its approximate share of liability, the Court cannot determine that the payment of $17,500 is a close enough approximation of its liability.

4) The allocation of the settlement proceeds among plaintiffs
This factor is not applicable.

5) The settling party’s financial condition and insurance policy limits
The Defendant offers no evidence regarding this factor.

6) Evidence that the plaintiff and the settling party acted with an intent to make the non-settling parties pay more than their fair share (considered fraud and collusion under Tech-Bilt).
The Defendant’s attorney, Robert Ackley, states in paragraph 5 that the parties agreed on the amount of $17,500 after a full day of mediation with a private mediator. However, there is no evidence that the Plaintiff and Defendant did not act with an intent to make the non-settling parties pay more than their fair share.

This analysis demonstrates that the Defendant, R.E. Wall & Associates, is not entitled to a finding that the settlement is a good faith settlement under CCP section 877.6 because it has not provided sufficient evidence regarding the Tech-Bilt factors, e.g., an approximately of the Plaintiff’s total recovery or facts supporting the claim that the Defendant has zero liability for the Plaintiff’s injuries.

Therefore, the Court will deny the motion of Defendant, R.E. Associates, Inc., for a finding under CCP section 877.6 that the settlement was a good faith settlement because the Defendant did not provide sufficient facts in its motion.

RULING:
DENY motion for good faith determination.