This case was last updated from Los Angeles County Superior Courts on 10/20/2020 at 21:55:18 (UTC).

ALAN NAITO ET AL VS CENTEX HOMES REALTY COMPANY ET AL

Case Summary

On 03/20/2018 ALAN NAITO filed a Personal Injury - Other Personal Injury lawsuit against CENTEX HOMES REALTY COMPANY. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judges overseeing this case are ELAINE LU, STEPHEN I. GOORVITCH, DEIRDRE HILL and RAMONA G. SEE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****8756

  • Filing Date:

    03/20/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

ELAINE LU

STEPHEN I. GOORVITCH

DEIRDRE HILL

RAMONA G. SEE

 

Party Details

Plaintiffs and Petitioners

NAITO ROSE

NAITO ALAN

Defendants, Respondents, Cross Plaintiffs and Cross Defendants

AFROUZEH SEYED HOSSEIN

PROCEDURE ENGINEERS INC.

RITNER GROUP INC.

RITNER ARCHITECTURAL GROUP

CENTEX HOMES REALTY COMPANY

DOES 1 TO 100

PROCEDURE ENGINEERS GROUP INC.

WALTERS WHOLESALE ELECTRONIC CO.

1 THROUGH 100 INCLUSIVE ROES

BORM ASSOCIATES INC.

O'NEIL FRAMING INC.

WEST COAST PROPERTY CONSULTANTS

RICHARDS GEORGE LEWIS

BAYANI BOBAK

POST JAMES E.

ROES 1 THROUGH 100 INCLUSIVE

PREFERRED FRAMING INC.

JPS SURFACE SOLUTIONS

15 More Parties Available

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

BROWN DAVID S.

BROWN DAVID SHELDON

Defendant and Cross Defendant Attorneys

BEHAR JEFFREY S. ESQ.

ARMSTRONG MARK LEIGH

TOURKAMAN NASIM SAHAR

BEHAR JEFFREY STEVEN ESQ.

BRETHEN GEOFFREY CHESTER

ROGERS SHIREEN BANKI

HUMMEL REBECCA

BEAN HEATHER M

PHE MARGARET JARAMILLA

BEHAR JEFFREY S.

MURTAUGH MICHAEL

Defendant, Cross Plaintiff and Cross Defendant Attorneys

BEHAR JEFFREY STEVEN ESQ.

BRETHEN GEOFFREY CHESTER

ROGERS SHIREEN BANKI

BEAN HEATHER M

PHE MARGARET JARAMILLA

JONES RICHARD

 

Court Documents

Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

7/16/2020: Minute Order - MINUTE ORDER (RULING ON SUBMITTED MATTER)

Motion for Summary Judgment

4/22/2020: Motion for Summary Judgment

Amended Complaint - THIRD AMENDED COMPLAINT

2/27/2020: Amended Complaint - THIRD AMENDED COMPLAINT

Separate Statement - SECOND SUPPLEMENTAL SEPARATE STATEMENT

1/17/2020: Separate Statement - SECOND SUPPLEMENTAL SEPARATE STATEMENT

Minute Order - MINUTE ORDER (1. CENTEX HOMES REALTY GROUPS MOTION FOR SUMMARY ADJUDICATION)

11/1/2019: Minute Order - MINUTE ORDER (1. CENTEX HOMES REALTY GROUPS MOTION FOR SUMMARY ADJUDICATION)

Motion for Summary Judgment - NOTICE OF MOTION; PROCEDURE ENGINEERS, INC. AND AFROUZEH'S MOTION FOR SUMMARY JUDGMENT, 0 IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES; MEMORANDUM OF POINTS AND AUT

11/4/2019: Motion for Summary Judgment - NOTICE OF MOTION; PROCEDURE ENGINEERS, INC. AND AFROUZEH'S MOTION FOR SUMMARY JUDGMENT, 0 IN THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES; MEMORANDUM OF POINTS AND AUT

Declaration - DECLARATION OF RENEE E. JENSEN IN SUPPORT OF PROCEDURE ENGINEERS, INC.'S SUPLEMENTAL OPPOSITION TO CENTEX HOMES REALITY COMPANY'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

10/18/2019: Declaration - DECLARATION OF RENEE E. JENSEN IN SUPPORT OF PROCEDURE ENGINEERS, INC.'S SUPLEMENTAL OPPOSITION TO CENTEX HOMES REALITY COMPANY'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND NOTICE AND MOTION TO AMEND COMPLAINT

10/7/2019: Motion for Leave to Amend - MOTION FOR LEAVE TO AMEND NOTICE AND MOTION TO AMEND COMPLAINT

Amendment to Complaint (Fictitious/Incorrect Name) - AMENDMENT TO COMPLAINT (FICTITIOUS/INCORRECT NAME) AMENDMENT TO COMPLAINT (DOE 3)

9/24/2019: Amendment to Complaint (Fictitious/Incorrect Name) - AMENDMENT TO COMPLAINT (FICTITIOUS/INCORRECT NAME) AMENDMENT TO COMPLAINT (DOE 3)

Notice - PROCEDURE ENGINEERS, INC.'S EVIDENTIARY PACKET IN SUPPORT OF ITS OPPOSITION TO CENTEX HOMES REALTY COMPANY'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

9/16/2019: Notice - PROCEDURE ENGINEERS, INC.'S EVIDENTIARY PACKET IN SUPPORT OF ITS OPPOSITION TO CENTEX HOMES REALTY COMPANY'S MOTION FOR SUMMARY ADJUDICATION OF ISSUES

Objection - OBJECTION OBJECTION IN SUPPORT OF ITS OPPOSITION TO CENTEX HOMES REALTY COMPANY'S MOTION

9/16/2019: Objection - OBJECTION OBJECTION IN SUPPORT OF ITS OPPOSITION TO CENTEX HOMES REALTY COMPANY'S MOTION

Minute Order - MINUTE ORDER (COURT ORDER: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (...)

4/30/2019: Minute Order - MINUTE ORDER (COURT ORDER: ORDER TRANSFERRING COMPLICATED PERSONAL INJURY (...)

Separate Statement

4/18/2019: Separate Statement

Proof of Service by Substituted Service

2/27/2019: Proof of Service by Substituted Service

Answer

1/18/2019: Answer

Opposition - Opposition to Demurrer

12/5/2018: Opposition - Opposition to Demurrer

Certificate - of Merit

10/9/2018: Certificate - of Merit

SUMMONS -

8/22/2018: SUMMONS -

253 More Documents Available

 

Docket Entries

  • 03/09/2021
  • Hearing03/09/2021 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Case Management Conference

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  • 01/28/2021
  • Hearing01/28/2021 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Motion - Other for an OSC Re: Contempt (CCP 1209) filed by Centex Homes Realty Company on 6/4/2020

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  • 01/28/2021
  • Hearing01/28/2021 at 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Hearing on Demurrer - without Motion to Strike

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  • 10/08/2020
  • Docketat 08:30 AM in Department B; Trial Setting Conference - Held

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  • 10/08/2020
  • DocketMinute Order ( (Trial Setting Conference)); Filed by Clerk

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  • 10/08/2020
  • DocketNotice of Ruling; Filed by Centex Homes Realty Company (Cross-Complainant)

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  • 10/06/2020
  • DocketProof of Personal Service; Filed by Centex Homes Realty Company (Cross-Complainant)

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  • 10/06/2020
  • DocketProof of Personal Service; Filed by Centex Homes Realty Company (Cross-Complainant)

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  • 10/06/2020
  • DocketProof of Personal Service; Filed by Centex Homes Realty Company (Cross-Complainant)

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  • 10/06/2020
  • DocketProof of Personal Service; Filed by Centex Homes Realty Company (Cross-Complainant)

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341 More Docket Entries
  • 08/03/2018
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 08/01/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 08/01/2018
  • DocketProof-Service/Summons; Filed by Alan Naito (Plaintiff)

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  • 08/01/2018
  • DocketProof-Service/Summons; Filed by Alan Naito (Plaintiff)

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  • 08/01/2018
  • DocketPROOF OF SERVICE SUMMONS

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  • 03/20/2018
  • DocketCOMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 03/20/2018
  • DocketCIVIL DEPOSIT

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  • 03/20/2018
  • DocketPLAINTIFFS' DEMAND FOR JURY AND NOTICE OF POSTING FEES

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  • 03/20/2018
  • DocketComplaint; Filed by Alan Naito (Plaintiff); Rose Naito (Plaintiff)

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  • 03/20/2018
  • DocketSUMMONS

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Tentative Rulings

Case Number: BC698756    Hearing Date: July 07, 2020    Dept: B

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka

Department B

Tuesday – July 7, 2020

Calendar No. 11

PROCEEDINGS

Alan Naito, et al. v. Centex Homes Realty Company, et al.

BC698756

1. Centex Homes Realty Company, et al.’s Motion to Continue Trial

TENTATIVE RULING

Centex Homes Realty Company, et al.’s Motion to Continue Trial is granted.

Pursuant to CRC Rule 3.1332(a), “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under CRC Rule 3.1332(b), “A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”

Under CRC Rule 3.1332(c), “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may include good cause include:

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5) The addition of a new party if:

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”

Other factors set forth in CRC Rule 3.1332(d) that are relevant in determining whether to grant a continuance include:

(1) The proximity of the trial date;

(2) Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7) The court's calendar and the impact of granting a continuance on other pending trials;

(8) Whether trial counsel is engaged in another trial;

(9) Whether all parties have stipulated to a continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or application.

Defendants request that the court continue the September 9, 2020 trial date for an additional six months due to Covid-19 and the resulting government orders that followed on a state, county, and local level. After the motion was filed on February 26, 2020, the parties stipulated to continue the trial date and a new date was set for September 9, 2020. Consequently, Plaintiff argues the motion is moot.

The Covid-19 crisis has led to an unprecedented impact on court operations resulting in extended delays in court proceedings, including jury trials. At present, it is unclear when the Los Angeles Superior Court will resume civil trials, notwithstanding any trial date previously stipulated to by the parties or agreed to by the court. Given this uncertainty, the Court finds the motion is not moot and that good cause exists to vacate the September 9, 2020 trial date.

The pleadings are still at issue. The Court is concurrently hearing Centex’s motion for leave to file a third amended cross-complaint on this date, a motion that was continued due to Covid-19. Also, extensive discovery still needs to be completed in this action, including physical examinations of Plaintiff. Therefore, good cause exists for continuing the September 9, 2020 trial date to permit the parties to complete the necessary discovery, bring in all necessary parties, and have adequate time to prepare for trial.

The court finds that Defendants have demonstrated facts showing the existence of “[a] significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” Cal. Rules of Court, Rule 3.1332(c)(7). Therefore, after considering the circumstances and factors set forth in CRC Rule 3.1332(c) and (d), the Court finds good cause to continue the trial date and grants the motion.

The court orders that trial is continued from September 9, 2020 to ____________________.

The final status conference is continued from September 2, 2020 to ____________________.

Discovery cut-off (including expert witness exchange) and motion cut-off dates shall be based on the new trial date.

Defendants are ordered to give notice of this ruling.

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka

Department B

Tuesday – July 7, 2020

Calendar No. 11

PROCEEDINGS

Alan Naito, et al. v. Centex Homes Realty Company, et al.

BC698756

2. Centex Homes Realty Company’s Motion for Leave to File First Amended Cross-Complaint

TENTATIVE RULING

Centex Homes Realty Company’s Motion for Leave to File First Amended Cross-Complaint is granted pursuant to CCP § 473(a)(1).

Leave to Amend

The court may, in furtherance of justice, and on such terms as may be proper, allow a party to amend any pleading. Code Civ. Proc., §§ 473 & 576. Judicial policy favors resolution of all disputed matters between the parties and, therefore, leave to amend is generally liberally granted. Ordinarily, the court will not consider the validity of the proposed amended pleading in ruling on a motion for leave since grounds for a demurrer or motion to strike are premature. However, the court does have discretion to deny leave to amend where a proposed amendment fails to state a valid cause of action as a matter of law and the defect cannot be cured by further amendment. Cal. Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.

The application for leave to amend should be made as soon as the need to amend is discovered. The closer the trial date, the stronger the showing required for leave to amend. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the court has the discretion to deny leave to amend. Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490. Prejudice exists where the amendment would require delaying the trial, resulting in loss of critical evidence, or added costs of preparation such as an increased burden of discovery. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.

Pursuant to Cal. Rules of Court, Rule 3.1324(a): A motion for leave to amend must: “(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.”

Here, Cross-Complainant has adequately complied with Rule 3.1324(a). Since Cross-Complainant is simply adding a new Cross-Defendant to each cause of action, it is not applicable or feasible to set forth each page, paragraph, and line number additions or deletions are being made.

Cal. Rules of Court, Rule 3.1324(b) also requires that the moving party submit a separate declaration specifying:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.

Cross-Complainant has submitted a declaration setting forth facts meeting the elements of Rule 3.1324(b)(1) to (4) with respect to the addition of the new Cross-Defendant. (Decl., Richard A. Jones, ¶¶ 3-11)

Plaintiff has failed to establish any undue delay on the part of Cross-Complainant or that the filing of the First Amended Cross-Complaint will cause prejudice to the parties. A short trial continuance of this action will not cause any undue prejudice to the parties.

Accordingly, Cross-Complainant’s Motion for Leave to File First Amended Cross-Complaint is granted. The interest in the furtherance of justice supports granting leave to amend. CCP § 473(a).

Cross-Complainant is ordered to file a copy of the First Amended Cross-Complaint forthwith, within five days of this date, and the First Amended Cross-Complaint is deemed filed as to the parties who have already previously responded to the Cross-Complaint upon the filing of the First Amended Cross-Complaint.

Cross-Complainant is ordered to give notice of this ruling.

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka

Department B

Tuesday – July 7, 2020

Calendar No. 11

PROCEEDINGS

Alan Naito, et al. v. Centex Homes Realty Company, et al.

BC698756

3. Centex Homes Realty Company, et al.’s Motion to Compel Multiple Medical Examinations of Plaintiff Alan Naito

TENTATIVE RULING

Centex Homes Realty Company, et al.’s Motion to Compel Multiple Medical Examinations of Plaintiff Alan Naito is granted.

Physical Examination

Pursuant to CCP § 2032.220, a defendant, in a personal injury action, may demand one physical examination of plaintiff. If defendant seeks an additional examination, defendant must establish good cause. CCP § 2032.320(a). To establish good cause the party requesting the discovery must “produce specific facts justifying discovery and that the inquiry [must] be relevant to the subject matter of the action or reasonably calculated to lead to the discovery of admissible evidence.” Vinson v. Superior Court (1987) 43 Cal.3d 833, 840. Good cause is established where a party has placed his or her physical condition in controversy in the action. See, Id.; See, also, Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 266.

Plaintiff alleges orthopedic, neurological, and gastroenterological injuries stemming from the incident which led to his injuries and the filing of this lawsuit. Defendant has established that it is entitled to more than one examination. Plaintiff has placed each of these distinct type of injuries in controversy, thus, necessitating examinations by specialists in each specific field. Therefore, good cause exists to compel the medical examinations of Plaintiff.

Plaintiff fails to provide a meritorious objection to the examinations. Plaintiff essentially argues that the injuries stem from a neurological injury; thus, only one examination is required. However, while the injuries may have stemmed from the fall which caused a spinal injury, the related symptoms have now ventured into separate fields which require investigation by orthopedic and gastroenterological specialists.

Plaintiff also argues the inconvenience and difficulty that now occurs to undertake any physical activity based on Plaintiff’s lack of mobility as well as the fear that has resulted from the Covid-19 crisis. While the Court acknowledges these concerns, the Court is also confident that moving party, in conjunction with Plaintiff, can meet and confer to agree to all necessary precautions to ensure that each of the examinations are conducted in the most efficient and safest method possible.

Accordingly, the Court finds that Defendant has established good cause to conduct multiple physical examinations, and the motion is granted.

Plaintiff is ordered to appear for his examinations at a date, time, location, and method to be agreed upon by the parties.

Defendant is ordered to give notice of this ruling.

LOS ANGELES SUPERIOR COURT – SOUTHWEST DISTRICT

Honorable Gary Y. Tanaka

Department B

Tuesday – July 7, 2020

Calendar No. 11

PROCEEDINGS

Alan Naito, et al. v. Centex Homes Realty Company, et al.

BC698756

  1. Procedure Engineers, Inc. and Seyed Hossein Afrouzeh’s Motion for Determination of Good Faith Settlement

TENTATIVE RULING

Procedure Engineers, Inc. and Seyed Hossein Afrouzeh’s Motion for Determination of Good Faith Settlement is denied without prejudice.

Objections

Opposing Defendant’s objections 1 to 5 are sustained.

Good Faith Settlement

Defendants Procedure Engineers, Inc. and Seyed Hossein Afrouzeh (“Settling Defendants” or “Moving Party”) move for an order finding that the settlement between Plaintiffs Alan Naito and Rose Naito and Setting Defendants was made in good faith pursuant to CCP §§ 877 and 877.6. Settling Defendants state that the parties entered into a settlement agreement to dismiss Settling Defendants in exchange for a waiver of costs. (Decl., Shirley Carpenter-Bridwell, ¶ 12.)

“[Code of Civil Procedure] Section 877.6 was enacted by the Legislature in 1980 to establish a statutory procedure for determining if a settlement by an alleged joint tortfeasor has been entered into in good faith and to provide a bar to claims of other alleged joint tortfeasors for equitable contribution or partial or comparative indemnity when good faith is shown.” IRM Corp. v. Carlson (1986) 179 Cal. App. 3d 94, 104.

CCP § 877.6(a)(1) provides, in relevant part, that, on noticed motion, “[a]ny party to an action wherein 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 . . . and one or more alleged tortfeasors or co-obligors . . . .” “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.” CCP § 877.6(c). Although a determination that a settlement was in good faith does not discharge any other party from liability, “it shall reduce the claims against the others in the amount stipulated” by the settlement. CCP § 877(a).

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499, the California Supreme Court identified the following nonexclusive factors courts are to consider in determining if a settlement is in good faith under section 877.6: “a rough approximation of plaintiffs' total recovery and the settlor's proportionate liability, the amount paid in settlement, the allocation of settlement proceeds among plaintiffs, and a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial. Other relevant considerations include the financial conditions and insurance policy limits of settling defendants, as well as the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.”

The evaluation of whether a settlement was made in good faith is required to “be made on the basis of information available at the time of settlement.” Tech-Bilt, 38 Cal.3d at 499. “‘[A] defendant’s settlement figure must not be grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate the settling defendant’s liability to be.’ [Citation.]” Id. at 499.

“The party asserting the lack of good faith, who has the burden of proof on that issue (§ 877.6, subd. (d)), should be permitted to demonstrate, if he can, that the settlement is so far ‘out of the ballpark’ in relation to these factors as to be inconsistent with the equitable objectives of the statute. Such a demonstration would establish that the proposed settlement was not a ‘settlement made in good faith’ within the terms of section 877.6.” Tech-Bilt, 38 Cal.3d at 499-500.

“Thus, Tech-Bilt held that in determining whether a settlement was made in good faith for purposes of section 877.6, a key factor a trial court should consider is whether the amount paid in settlement bears a reasonable relationship to the settlor’s proportionate share of liability. (Tech-Bilt, supra, 38 Cal.3d at pp. 499–500 . . . .) This is because one of the main goals of section 877.6 is ‘allocating costs equitably among multiple tortfeasors.’ (Tech-Bilt, supra, 38 Cal.3d at p. 502 . . . .)” TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal. App. 4th 159, 166. “Accordingly, a court not only looks at the alleged tortfeasor's potential liability to the plaintiff, but it must also consider the culpability of the tortfeasor vis-à-vis other parties alleged to be responsible for the same injury. Potential liability for indemnity to a nonsettling defendant is an important consideration for the trial court in determining whether to approve a settlement by an alleged tortfeasor. [Citation.]” Id. at 166.

In a contested motion for good faith, the settlement agreement must also be produced, otherwise the non-settling defendant is put “in the position of having to ‘take on faith’ that its adversaries properly decided what terms were important and fairly represented them.” Mediplex of California, Inc. v. Superior Court (1995) 34 Cal.App.4th 748, 753.

Cal. Rules of Court, Rule 3.1382 states: “A motion or application for determination of good faith settlement may include a request to dismiss a pleading or a portion of a pleading. The notice of motion or application for determination of good faith settlement must list each party and pleading or portion of pleading affected by the settlement and the date on which the affected pleading was filed.”

First, Settling Defendants’ motion failed to comply with Cal. Rules of Court, Rule 3.1382 as the notice of motion did not list each party and pleading affected and the date on which the affected pleading was filed. Settling Defendant attempted to cure this defect in the Reply but the statute clearly states that this information is required on the notice of motion, and not with the Reply.

Second, Settling Defendants failed to attach a copy of the written settlement agreement, or, made clear that no such written agreement exists. While the settlement was apparently a non-monetary settlement, opposing party is still entitled to review the terms of the settlement agreement if it was reduced to a writing.

Finally, Settling Defendants failed to submit competent evidence to determine whether the settlement is within the “ballpark” of the settling defendants’ share of liability, as well as to set forth Plaintiff’s approximate total recovery. The Court’s evaluation of a settlement agreement in a contested proceeding must be based on competent evidence. See, City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d. 1251, 1263; See also Brehm Communities v. Superior Court (2001) 88 Cal.App.4th 730, 736. Here, the motion is only supported the declaration of Settling Defendants’ counsel who lacks competency to testify as to the underlying liability and damages issues in this action.

The Court finds that as to the remaining Tech-Bilt factors, they are either not applicable or Settling Defendants adequately addressed them in the declarations submitted in support of the motion, as well as the declaration submitted by Seyed Hossein Afrouzeh in the Reply. The amount paid in settlement is $0. There is no allocation. The Court recognizes that settlor will likely pay less in settlement. Afrouzeh adequately sets forth Defendants’ financial condition. Finally, there is no evidence of collusion or fraud.

Thus, for the foregoing reasons, Settling Defendants’ motion for determination of good faith settlement is denied without prejudice.

Opposing Defendants, Centex Homes Realty Co., et al., are ordered to give notice of this ruling.