Defendant BPO Elks Lodge No. 1767’s motion to determine good faith settlement is denied.
Defendant failed to offer competent, admissible evidence sufficient to show the relevant good-faith factors. (See Code Civ. Proc. § 877.6; see also Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.)
Specifically, defendant failed to offer evidence showing:
- a rough approximation of the plaintiff’s total recovery
- a rough approximation of its liability for indemnity
- its proportionate share of liability to plaintiff
- the amount paid in settlement – i.e., the amount of costs being waived
- its financial condition and policy limits.
Even if defendant shown the relevant Tech-Bilt factors, the opposing evidence shows a “costs waiver” settlement would be grossly disproportionate to defendant’s potential liability.
Defendant owed plaintiff a nondelegable duty to maintain its property in a safe condition. (See Srithong v. Total Investment Co. (1994) 23 Cal.App.4th 721, 726; cf. Civ. Code § 2782 [limits on construction-contract indemnity provisions].)
The experts agree the opening on defendant’s property where plaintiff fell was unsafe. (See Mallon decl. Ex. L (Harrington dep.) at pp. 47-49; Ex. M (Avrit dep.) at pp. 51-52; Ex. N (Jenning dep.) at p. 39.)
The opposing evidence showed defendant failed to warn plaintiff about the construction, failed to post signs at the construction site, and kept moving construction barricades like the one that had been placed over the opening where plaintiff fell. (See, e.g., Mallon decl. Ex. F (Jackson dep.) at pp. 18, 60, 73-75, 123-124; Ex. G (Schaller dep.) at pp. 72-73; Ex. H (Pyles dep.) at pp. 8-9, 82-85, 101, 122, 253-256, 260-262; Ex. J. (R. Vasquez dep.) at pp. 7, 12-13, 20-21, 26-32; Ex. K (J. Vazquez dep.) at pp. 8-9, 26-27, 35-38, 41-42.)
Expert testimony suggests defendant should have done more to keep the area protected. (See Mallon decl. Ex. M (Avrit dep.) at pp. 136-137; Ex. N (Jenning dep.) at pp. 23, 39.)
The court thus disagrees with defendant that its “liability to Plaintiff is non-existent or extremely minimal.” (Mot. at p. 17:2.) It cannot find settling in exchange of a waiver of unquantified costs was made in good faith.
Defendant PCM’s objections to the Trock declaration are sustained as to #3-6 & 8-36 and otherwise overruled. Counsel generally lacks foundation to testify as to the underlying facts.
Defendants DJM & Lido’s objections are sustained as to #2 and otherwise overruled.
Defendant Elks Lodge shall give notice.