NAHRAIN DAWOD VS OUE SKYSPACE LLC ET AL

Tentative Rulings

Case Number: BC640836    Hearing Date: January 08, 2020    Dept: 2

Dawod v. Que Skyspace LLC et al.

In this action, Plaintiff alleges that she was injured while riding the Skyslide at OUE Skyspace in downtown Los Angeles. Plaintiff alleges that she hit her head on the interior of the slide and suffered brain damage. Plaintiff seeks compensatory damages for medical bills and lost income as well as general damages. According to Defendant TWT, Inc., Plaintiff continues to work at the same job she had prior to the accident and claims to have missed approximately 12 to 16 days of work due to the incident over the last three years. Plaintiff alleged claims against the following defendants: TWT, Inc.; OUE Skyspace, LLC; Legends Hospitality, LLC; Legends Attractions, LLC and Beringia Central LLC.

Defendants Legends Hospitality LLC and Legends Attractions LLC filed a cross-complaint against Oue Skyspace LLC, Beringia Central LLC and TWT Inc. The cross-complaint against Oue Skyspace LLC and Beringia Central LLC was subsequently dismissed. The cross-claims against TWT, Inc. are based on equitable indemnity and comparative fault principles.

Plaintiff has entered into a settlement agreement with TWT, Inc. and TWT, Inc. seeks an order determining that the settlement is in good faith and dismissing the cross-complaint for equitable indemnity and comparative fault against it. TWT, Inc. has agreed to pay Plaintiff $125,000 in return for a full release. Defendants oppose the motion.

The settling party need only demonstrate that a settlement has been made. The burden shifts to the contesting party to demonstrate that the settlement was not made in good faith pursuant to Tech-Bilt v. Inc. v. Woodward Clyde Associates (1985) 38 Cal.3d 488. In evaluating a motion for a good faith settlement, the Court considers the following factors:

1. Approximation of plaintiff’s total recovery and settlor’s proportionate liability.

2. The amount paid in settlement.

3. Recognition that the settlor should pay less in settlement.

4. Allocation of the settlement proceeds among the plaintiffs

5. The settlor’s financial condition and insurance policy limits.

6. Evidence of collusion, fraud or tortious conduct between the settlor and plaintiff.

7. Whether the settlement is in the reasonable range of the settlor’s share of liability. Tech-Bilt at 499.

As previously noted, the settlement is for $125,000. Plaintiff has served a statement of damages asserting pain, suffering and inconvenience of $850,000. Plaintiff served CCP 998 offers on the Legends Defendants and the OUE Skyspace Defendants of $500,000 and $800,000 respectively. TWT, Inc. presents evidence that special damages are approximately $15,000. Viewing all of the evidence submitted by all parties, the Court concludes that the non-settling defendants have not established that the $125,000 settlement is not within a reasonable range of the settlor’s share of liability. The Court concludes that factors 1, 2, 3, and 7 favor a finding of good faith. The fourth factor does not apply here.

The Court also finds there is no evidence of collusion, fraud or tortious conduct between the settlor and plaintiff. The parties reached settlement following a nearly day-long mediation before a neutral. The non-settling defendants argue that the timing of the motion somehow suggests bad faith, but that argument fails. As TWT observes, trial in this matter is set for 2/19/20, and settlor seeks to avoid further litigation costs and the uncertainty of trial. The motion was brought at the appropriate time.

The Court does not find it necessary to consider the financial condition or insurance policy limits of TWT, given its conclusions on the other factors. Weighing all the Tech-Bilt factors, the Court concludes that the settlement was made in good faith.

The non-settling defendants argue that TWT, Inc. should have allocated the settlement amount to “different areas of damages.” But there has been no showing that there are different areas of damage for which different defendants would have differing liability. The cases the non-settling defendants rely on are not apposite.

Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1495 required allocation of settlement as it was a construction defect action against developers of a residential subdivision, the original seller, the grader of property, and the soils engineer. Id. at 1475. Allocation of the settlement amount among the Defendants for purposes of determining setoff was required since each had “potential liability for different areas of damage.” L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 750.

In both Erreca’s and L.C. Rudd, another construction defect action, the plaintiffs had different categories of damage: “soils and foundation issues” and “non-soils” issues. L.C. Rudd at 750. In Erreca’s, the categories of damage were characterized as “soils versus nonsoils.” The nonsettling party in Erreca’s had liability for “soils” defects and would be entitled to a credit for that portion of settlement allocated to that category of damage. Erreca’s at 1481. Both cases are factually distinguishable.

Additionally, Erreca’s makes clear that “[i]n the typical one-plaintiff, multiple-defendants, personal injury action each tortfeasor is potentially liable for the same injury to the plaintiff. Therefore, the full settlement by one defendant will offset a judgment against other tortfeasors; no allocation of the settlement is required.” Id. at 1489. This case presents the “typical” personal injury action referenced by Erreca’s.

The Legends Defendants also oppose the motion to the extent it seeks dismissal of the cross complaint. Section 877.6 provides: “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.” The Legend Defendants’ cross-complaint against TWT falls into this category and further proceedings on the cross-complaint are thus barred.

There has been no authority cited to the Court that the request for dismissal of a cross-complaint cannot be made in the same motion as the request for a good faith determination. Instead, the case cited by Skyspace observes that “some courts have granted simple motions to dismiss cross-complaints for indemnity immediately upon determining the cross-defendant's settlement was in good faith. (See, e.g., Turcon Construction, Inc. v. Norton-Villers, Ltd., supra, 139 Cal.App.3d at p. 282.) While we have found no authority expressly prescribing such a disposition, it shares with its traditional counterparts discussed above the features of a final adjudication made by the court before which the indemnity claim or action is pending for determination.” City of Grand Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1266.

The non-settling defendants make no substantive argument for why the cross-complaint should not be dismissed. Requiring a separate motion would not serve the interests of judicial economy, since it is plain from the face of the cross-complaint that the good faith settlement bars the cross-complainants from proceeding.

In sum, the Court finds that the settlement between Plaintiff and Defendant TWT, Inc. is in good faith. The settlement 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. Defendants Legends Hospitality LLC and Legends Attractions LLC’s cross-complaint against TWT Inc. is dismissed.

Moving party is ordered to give notice.