Case Number: BC586916??? Hearing Date: February 21, 2017??? Dept: 92
DAVID LEPEDZHYAN,
Plaintiff,
vs.
LAURA GABBERT, ET AL.,
Defendants.
Case No.: BC586916
[TENTATIVE] ORDER GRANTING MOTION FOR DETERMINATION OF GOOD FAITH SETTLEMENTCross-Defendant Laurie Eccleston?s Motion for Order Determining Good Faith Settlement is GRANTED.
Facts
On July 6, 2015, Plaintiff David Lepedzhayan filed an action against Defendant Laura Gabbert for personal injuries and property damage he sustained in a car accident. Defendant filed a cross-complaint against Cross-Defendant Laurie Eccleston on April 14, 2016 seeking indemnification, apportionment of fault, and declaratory relief.
Plaintiff was rear-ended on November 18, 2014; May 9, 2015; and September 25, 2015. Defendant Laura Gabbert was involved in the November 18, 2014 collision, which caused Plaintiff severe lower back injury and total loss of his Honda. Cross-Defendant Laurie Eccleston was involved in the September 25, 2015 collision, which resulted in injuries to Plaintiff?s upper back and neck and $13,777.96 in repair costs to the car he was driving. The May 9, 2015 collision resulted in only nominal vehicle damage and no bodily injury.
Plaintiff and Cross-Defendant reached an agreement for the settlement of all claims and disputes. The terms of the settlement are as follows: (1) Cross-Defendant paid Plaintiff and his attorneys of record $15,000; and (2) in return, Plaintiff executed a written release of all claims, past, present, and future, against Cross-Defendant, including a California Civil Code section 1542 waiver.
Cross-Defendant filed a Notice of Settlement and Application for Determination of Good Faith Settlement on September 23, 2016. The Court issued an order on September 30, 2016 finding the application defective because it did not contain either the Tech-Bilt factors, or if there were policy limits, the Schmid case factors. The Court also found that the proof of service was missing a return receipt requested as required by Code of Civil Procedure section 877.6(a)(2). The Court held the application and order for 25 days for counsel to resubmit the proper documents and proof of service requesting return receipt.
On January 28, 2017, Cross-Defendant filed this Notice of Motion and Motion for Oder Determining Good Faith Settlement and for Dismissal of any and all Cross-Complaints for Indemnity and Apportionment of Fault. The proof of service attached to the motion shows service by certified mail, return receipt requested. Cross-Defendant?s Memorandum of Points and Authorities addresses the Tech-Bilt factors. No opposition has been filed.
1. Determination of Good Faith Settlement
If a plaintiff or other claimant settles with a joint tortfeasor, the settlement discharges the joint tortfeasor from liability to the other joint tortfeasors for equitable contribution or comparative indemnity provided that the settlement was made in ?good faith.? (Code Civ. Proc. ?877.6(a), (c).) Cross-defendants for indemnity cross-complaints who settle with the plaintiff are entitled to a good faith determination under section 877.6. (KAOM, Inc. v. Superior Court (1995) 35 Cal.App.4th 549, 555.)
The ?good faith? requirement seeks to balance the objective of encouraging settlement with the objective of equitable sharing of costs among tortfeasors. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 494.) The settlement must be ?within the reasonable range of the settling tortfeasor?s proportional share of comparative liability for the plaintiff?s injuries? based on the information available at the time of settlement. (Id. at 499.) In determining whether a settlement is in good faith, the court should consider a number of factors, including: a rough approximation of plaintiff?s total recovery and the settlor?s proportionate liability, the amount paid in settlement, that a settlor should pay less than he would if he were found liable after trial, the financial condition and insurance policy limits of the settlor, and the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants. (Id.) The party asserting the lack of good faith has the burden of proof on that issue. (Code Civ. Proc. ?877.6(d).)
A. Rough Approximation of Plaintiff?s Total Recovery and Cross-Defendant?s Proportionate Liability
Cross-Defendant has failed to provide a rough approximation of Plaintiff?s total recovery. However, she has provided evidence regarding her proportionate liability that has not been contested. The Court notes that Cross-Defendant argues that Defendant?s claims against Cross-Defendant lack merit because they were involved in different accidents with Plaintiff causing different injuries. Cross-Defendant argues that she is therefore not a joint tortfeasor. (Memo ISO Motion 8:15-17.) This argument does not prevent the Court from making a determination under section 877.6, as section 877.6 applies when it is alleged that two or more parties are joint tortfeasors. (Hartford Accident & Indemnity Co. v. Superior Court (1995) 37 Cal.App.4th 1174, 1178-79.) Defendant has alleged that Cross-Defendant is a joint tortfeasor.
Plaintiff alleges he suffered loss of use of property, hospital and medical expenses, general damages, and property damage, and he is seeking compensatory damages according to proof. Cross-Defendant only addresses hospital and medical expenses and property damage. She does not address general damages or loss of use of property.
Cross-Defendant provides evidence that Defendant?s accident resulted in severe injuries to Plaintiff?s lower back that made him immobile and unable to perform fundamental personal tasks, including walking and using the restroom. (Mawhinney Decl. ?7, Ex. G [63:24-68:18].) Cross-Defendant?s evidence shows that Cross-Defendant?s accident resulted in minor injuries to Plaintiff?s upper back and neck, which, according to Plaintiff?s testimony, did not exacerbate or contribute to the injuries to his lower back and resolved within three months. (Mawhinney Decl. ?10, Ex. N [84:5-24].) A comparison of the MRI of Plaintiff?s spine taken on December 23, 2014 with the MRI of Plaintiff?s spine taken on December 4, 2015 supports the severity of the accident with Defendant relative to the severity of the accident with Cross-Defendant. (Mawhinney Decl. ?11, Ex. O, Ex. P.) Plaintiff was treated by a chiropractor for his upper back and neck injuries, billed at $6,170.00. The MRI that was taken after the accident with Cross-Defendant was billed at $2,200. Cross-Defendant?s counsel asserts in his declaration that $6,975.00 of the total $8,370.00 in billing was accepted as reasonable and necessary and arising from the accident with Cross-Defendant, but he does not provide any basis for his assertion. (Mawhinney Decl. ??12-13.)
Plaintiff was driving different cars during the accident with Cross-Defendant and the accident with Defendant, so Cross-Defendant is not liable for the damage to Plaintiff?s car caused by Defendant?s accident. Repairs to Plaintiff?s Honda as a result of the accident with Defendant were estimated to be $14,581.92. (Mawhinney Decl. ?7, Ex. E.) Repairs to the Lexus 350ES Plaintiff was driving during his accident with Cross-Defendant, which belongs to his girlfriend, were estimated to be $13,777.96. (Mawhinney Decl. ?9, Ex. K.)
B. Amount Paid in Settlement
Cross-Defendant paid $15,000 through her automobile liability carrier. Cross-Defendant contends that $15,000 bears a reasonable relationship to the total $8,370 in treatment billed for the accident involving Cross-Defendant. The terms of the settlement include a written release by Plaintiff of all claims, past, present, and future, against Cross-Defendant, including a California Civil Code section 1542 waiver. Thus, the $15,000 covers not only Plaintiff?s medical expenses, but also noneconomic damages and all claims Plaintiff might have related to the damage to car he was driving.
C. Financial Condition and Insurance Policy Limits of Cross-Defendant
Cross-Defendant has $50,000 in available coverage through her automobile liability carrier. (Memo ISO Motion 3:6-7.) No evidence of Cross-Defendant?s financial condition has been provided to the Court.
D. Existence of Collusion, Fraud, or Tortious Conduct
There are no allegations or any evidence of collusion, fraud, or tortious conduct aimed to injure Defendant.
?The ultimate determinant of good faith is whether the settlement is grossly disproportionate to what a reasonable person at the time of settlement would estimate the settlor?s liability to be.? (City of Grand Terrace v. Superior Court (Boyter) (1987) 192 Cal.App.3d 1251, 1262.) Billed medical expenses for the upper back and neck injuries caused by Cross-Defendant totaled $8,370, and the damage to the car Plaintiff was driving was $13,777.96. Adding a reasonable amount for pain and suffering and loss of use of the car would result in around $25,000 in liability. Recognizing that Cross-Defendant should pay less than she would if she were found liable after trial, the Court finds that a settlement of $15,000 is not ?grossly disproportionate? to Cross-Defendant?s liability.
The motion for an order determining good faith settlement is GRANTED. Joint tortfeasors are barred from claims against Cross-Defendant for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault arising from the facts of this case. The Cross-Complaint is dismissed.