CRESTBROOK INSURANCE COMPANY VS CITY OF BEVERLY HILLS

Tentative Rulings

Case Number: BC663164    Hearing Date: July 21, 2020    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION FOR UNDERTAKING

On May 11, 2018, Plaintiff Crestbrook Insurance Company (“Plaintiff”) filed its first amended complaint (“FAC”) in subrogation against Defendants City of Beverly Hills (“City”) and Behnam Ghodsian (“Defendant”). Plaintiff named Defendant as Doe 1. Only the fourth cause of action for negligence is asserted against Defendant. The FAC alleges in the fourth cause of action for negligence that Defendant’s failure to maintain and repair his sewer lateral connections from his property to the connection with City’s sewer main caused Plaintiff’s harm. (FAC ¶ 25-27.) Plaintiff later settled its claims against the City. On January 3, 2020, Defendant moved for summary judgment. Defendant also filed a motion for an undertaking.

SUMMARY JUDGMENT

REQUEST FOR JUDICIAL NOTICE

Defendant requests the Court take judicial notice of the complaint, amendment to complaint, FAC, and Notice of Ruling on Motion to Contest Application for Good Faith Determination of Settlement Filed by Behnam Ghodsian, filed on November 21, 2018. These requests are granted. (Evid. Code, § 452, subd. (d).) Plaintiff also requests the Court take judicial notice of the Statewide General Waste Discharge Requirements for Sanitary Sewer Systems from the State Water Resources Control Board, Order No. 2006-0003-DWQ, dated May 2, 2006. This request is granted. (Evid. Code, § 452, subd. (b).)

EVIDENTIARY OBJECTIONS

Plaintiff’s Objection Nos. 1 and 5 are sustained. Plaintiff’s Objection Nos. 2-4 are overruled.

Defendant’s Objection Nos. 1-4 are overruled. Defendant’s Objection Nos. 5-6 are sustained.

FACTUAL BACKGROUND

Plaintiff insured Sam Kachan and Mojgan Kachan Rahimian (“Kachans”) for their residence at 356 S. Palm Drive, Beverly Hills, California. (FAC ¶ 1.) On or about July 30, 2016, wastewater seeped into the Kachans’ basement. (Undisputed Material Facts “UMF” 1.) Andrew Diaz (“Diaz”) and Danny Boyle (“Boyle”), members of the City’s wastewater crew, responded to an emergency call in the morning and removed a blockage inside the sewer main. (UMF 3.) Diaz and Boyle returned in the afternoon with closed-circuit television (“CCTV”) equipment to videotape the condition of the sewer main. (UMF 6.) The CCTV video shows several sewer lateral connections with root intrusion into the City’s sewer main. (UMF 20-21.) The Kachans’ basement is below the upstream manhole. (UMF 7.)

The City is responsible for inspecting the sewer main and performing proactive, regular maintenance at least once a year to prevent sewer backups. (UMF 13-16.) Between the 2015 and 2016 hydrojetting of the relevant sewer main segment, 385 days passed. (UMF 18.)

LEGAL STANDARD

For each claim in the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by showing that one or more elements of a cause of action cannot be established or that there is a complete defense to a cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Then the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action or a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf, supra, 128 Cal.App.4th at p. 1520.) To establish a triable issue of material fact, the party opposing the motion must produce “substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 162-163 (Sangster).)

DISCUSSION

An insurer’s cause of action based in subrogation requires: “(a) the insured suffered a loss for which the defendant is liable, either as the wrongdoer whose act or omission caused the loss or because the defendant is legally responsible to the insured for the loss caused by the wrongdoer; (b) the claimed loss was one for which the insurer was not primarily liable; (c) the insurer has compensated the insured in whole or in part for the same loss for which the defendant is primarily liable; (d) the insurer has paid the claim of its insured to protect its own interest and not as a volunteer; (e) the insured has an existing, assignable cause of action against the defendant which the insured could have asserted for its own benefit had it not been compensated for its loss by the insurer; (f) the insurer has suffered damages caused by the act or omission upon which the liability of the defendant depends; (g) justice requires that the loss be entirely shifted from the insurer to the defendant, whose equitable position is inferior to that of the insurer; and (h) the insurer’s damages are in a liquidated sum, generally the amount paid to the insured.” (Fireman’s Fund Ins. Co. v. Md. Cas. Co. (1998) 65 Cal.App.4th 1279, 1292, emphasis in original (“Fireman’s Fund”.)

Defendant contends that the incident occurred because the Kachans did not properly maintain a functioning backwater valve and the City did not take proactive steps to inspect and maintain the sewer. (Motion at p. 5.) Accordingly, Defendant moves for summary judgment on the ground that Plaintiff cannot establish that the Kachans are not primarily liable, that the City is not primarily liable, or that Defendant is primarily liable. Defendant further contends that even if he breached his duty to comply with an ordinance regarding maintenance of his lateral connection, the actions of the Kachans and the City break the chain of causation. (Ibid.)

The Pleadings

Plaintiff contends that Defendant’s argument goes outside the pleadings because the issue of primarily liability originates in the doctrine of “superior equities,” and Defendant did not plead that affirmative defense. (Opposition at pp. 13-14.) However, as Fireman’s Fund makes clear, a showing that the insurer’s equitable position is greater than the defendant’s is an element of Plaintiff’s affirmative case, not an affirmative defense.

Defendant’s amended answer raised, as its forty-second affirmative defense, that Plaintiff’s damage was “the direct and proximate result of the independent or superseding action of PLAINTIFF and/or other persons or parties.” (Amended Answer at p. 8.) Therefore, contrary to Plaintiff’s contention (Opposition at p. 14), this defense is within the scope of the pleadings and may be adjudicated on summary judgment.

Primary Liability

Defendant starts by arguing that Plaintiff cannot show that the insured (the Kachans) are not primarily liable. However, the element is not that the insured was not primarily liable. It is that “the claimed loss was one for which the insurer was not primarily liable.” Fireman’s Fund, supra, 65 Cal.App.4th at p. 1292, emphasis added.) Defendant does not contend, or submit evidence, that Plaintiff is anything other than “an innocent insurance company (which admittedly received premiums for the very loss that occurred).” (State Farm General Ins. Co. v. Wells Fargo Bank, N.A. (2006) 143 Cal.App.4th 1098, 1119 (“State Farm”).)

As the court in State Farm explained, when the insurer merely paid the insured under the insurance policy and there is more than one potential cause of the harm, the analysis is not all or nothing. (Id. at p. 1118 [rejecting “the extreme positions advanced by the parties” and noting that the pertinent case authority does not require “that a defendant be the primary wrongdoer,” emphasis in the original].) It may be enough that the defendant “helped to cause a loss.” (Id. at p. 1119 [“Subrogation advances an important policy rationale underlying the tort system by forcing a wrongdoer who helped to cause a loss to bear the burden of reimbursing the insurer for payments made to its insured as a result of the wrongdoer’s acts and omissions”].) Thus, “the issue is whether [the defendants] were in a better position to avoid the loss than [the insurer] or its insureds.” (Id. at p. 1118.) That issue of the weighing of the equities is addressed below.

Superior Equities

“[T]he aim of equitable subrogation is to shift a loss for which the insurer has compensated its insured to one who caused the loss, or who is legally responsible for the loss caused by another and whose equitable position is inferior to the insurer’s.” (State Farm, supra, 143 Cal.App.4th at p. 1119.) The fact that a party did not directly cause the loss “does not automatically mean that they have a superior equitable position over [the insurer.]” (Id. at p. 1118.) “[A] significant factor in weighing the equities is whether a defendant’s negligent acts were related to or contributed to the primary cause of loss.” (Ibid.) Thus, even if the defendant was not the direct or primary cause of the loss, the equities may still weigh in favor of shifting the burden of the loss from the insurer to the defendant. (Id. at p. 1119.) In sum, the fact that a defendant’s actions were not the sole primary cause of loss does not automatically mean that summary judgment must be granted as a matter of law for the defendant. (Ibid.)

Here, Defendant argues that the Kachans or the City caused the loss, and that Defendant did not cause the loss. Alternatively, Defendant argues the actions of the Kachans or the City were superseding causes. In support, Defendant submits evidence that the Kachans did not maintain a properly functioning backwater valve in good working order at their residence. In the declaration and deposition testimony of Rajesh Patel (“Patel”), the City’s Assistant Director of Community Development, Patel testified that the plumbing code required a backwater valve. (Yang Decl., Ex. D at pp. 43, 54-55.) Patel opines that if the Kachans had maintained a properly functioning backwater valve in good working order at their residence, the incident would not have resulted in any sewer waste water in their basement. (Yang Decl., Ex. 132 ¶ 20.)

Defendant also submits evidence that the City did not comply with its mandatory obligation to take proactive steps to regularly and routinely inspect and maintain its sewer. According to Defendant, the incident would not have occurred in the absence of the City’s failure to inspect the relevant section of sewer in the 385 days prior to the incident. (Motion at pp. 12-13.) Defendant provides the deposition testimony of Colonel James Burnley Jr. (“Burnley”), the City’s Waste Manager, who confirms that the maintenance log shows zero maintenance between July 30, 2015 and July 29, 2016, before the emergency call on July 30, 2016. (Yang Decl., Ex. G at pp. 80-81.)

And, Defendant contends he was not at all at fault because the blockage was at the sewer main, not at his lateral connection. (Motion at p. 14.) Defendant submits the CCTV video, images from the video, and Burnley’s deposition testimony of this opinion of the video. (Yang Decl., Ex. G at pp. 165, 168; Ex. 210-211.) Burnley stated that he did not see any roots coming out of the lateral and that he saw a little bit of what appeared to be roots in the corner, at the lateral opening. (Yang Decl., Ex. G at pp. 165, 168.) Defendant also provides the deposition testimony of Patricia Rhay (“Rhay”), the City’s former Assistant Director of Public Works. (Yang Decl., Ex. E.) Rhay stated that the City owns the wye, which is labeled in a diagram as the lateral connection stub. (Id. at pp. 162, 187.) According to Burnley, the City maintains the main line. (Yang Decl., Ex. G at p. 64.)

Defendant has therefore met his initial burden of showing that the acts or omissions of the Kachans and the City were causes of the loss, and that the blockage was at a part of the lateral under the City’s, not his, control.

In opposition, Plaintiff provides evidence that the City approved the plumbing connection of the Kachans’ property to the City’s sewer main in 1991-1992, before the Kachans owned the property. (Opposition at p. 16; Sparks Decl., Ex. 6 at p. 13.) Plaintiff also submits evidence that the Kachans may not have been required to upgrade the system. (Sparks Decl., Ex. 5 at pp. 98, 105-107; Ex. 14 at pp. 33-34.) Additionally, Plaintiff’s expert opined that a functioning backwater valve would have prevented only the back flow from the City’s sewer main from flowing out of the sanitary sewer lateral of the property into the basement. (Wren Decl., ¶ 8.) This backup would have occurred only after the residence’s sewer lateral capacity was exceeded due to its inability to discharge into the City’s sewer main. (Ibid.) As the back flow of sewer water from the City’s sewer main occurred, the residence’s sewer discharge would also be redirected from its lateral into the basement, and the sanitary sewer system for the residence would discharge into the basement along with the back flow from the City’s sewer system. (Ibid.)

Therefore, there is a triable issue of fact as to whether the Kachans were required to install a backwater valve and whether, even if the valve had been installed, it would have prevented the incident.

Plaintiff also provides additional deposition testimony of Burnley, who explains that Defendant is responsible for maintaining the sewer lateral from the point of connection with the home to its connection with the City’s sewer main. (Sparks Decl., Ex. 8 at pp. 232-233, 264-265.) After the incident, Josette Descalzo, Environmental Engineer for the City, described roots in and coming out of Defendant’s lateral up to the point of connection to the City’s main line, which Defendant needed to address. (Sparks Decl., Ex. 9 at pp. 48-58.) This evidence raises disputed facts as to the location of the roots and Defendant’s obligation to maintain that area, thereby putting Defendant’s negligence in dispute.

In sum, disputed material facts exist about the cause of the loss, which preclude summary judgment.

Other Arguments

Defendant also argues that the decision in City of Oroville v. Superior Court (2019) 7 Cal.5th 1091 compels a finding that the Kachans are liable due to their failure to install the valve and a ruling in favor of Defendant. This argument is not well-taken because in that case the Supreme Court analyzed liability for inverse condemnation, not negligence of a private third party or equitable subrogation. (Id. at pp. 1097-1105.) Also, the facts in that case involving different parties, a different city, and a different property are, by definition, not the same facts present here.

Defendant contends that Plaintiff’s claim for subrogation was extinguished by its settlement with the City. (Motion at pp. 13-14.) Defendant cites American States Ins. Co. v. National Fire Ins. Co. of Hartford (2011) 202 Cal.App.4th 692 for this argument. That case involved litigation between two insurance companies about which was responsible for compensating the insured. (Id. at p. 703.) There, the court held that “the insured’s right of recovery is restricted to the actual amount of the loss,” and where “an insured has recovered the full amount of its loss” from one insurance company, “the insured has no further rights against the insurers who have not contributed to its recovery.” (Id. at p. 104.) Here, the Kachans are not seeking to collect more money from a second insurer. Rather, the insurer, who recovered from the City some but not all of the amount it paid the Kachans, is seeking to recover additional amounts from Defendant. Defendant cites no law that a good faith settlement with one defendant bars a plaintiff from recovering from another defendant.

CONCLUSION

Defendant’s motion for summary judgment is DENIED.

UNDERTAKING

LEGAL STANDARD

When a plaintiff in an action resides out of the state, the defendant may, at any time, apply to the court for an order requiring the plaintiff to file an undertaking to secure an award of costs and attorney’s fees which may be awarded in the action. (Code Civ. Proc., § 1030, subd. (a).) The motion shall be made on grounds that the plaintiff resides out of the state and there is a reasonable possibility that the moving defendant will obtain judgment in their favor. (Code Civ. Proc., § 1030, subd. (b).) The motion shall be accompanied by an affidavit in support of the grounds for the motion and setting forth the nature and amount of costs and attorney’s fees the defendant has incurred and expects to incur. (Code Civ. Proc., § 1030, subd. (b).) “The purpose of [Code of Civil Procedure section 1030] is to enable a California resident sued by an out-of-state resident to secure costs in light of the difficulty of enforcing a judgment for costs against a person who is not within the court’s jurisdiction.” (Alshafie v. Lallande (2009) 171 Cal.App.4th 421, 428.) The moving party is not required to show there is no possibility that an out-of-state plaintiff could win at trial. Rather, the moving party is required to show only that it was reasonably possible that they would win. (Baltayan v. Estate of Getemyan (2001) 90 Cal.App.4th 1427, 1432.)

If the motion is granted, the plaintiff shall file the undertaking no later than 30 days after service of the court’s order requiring it, and if plaintiff fails to file the undertaking within the time allowed, the plaintiff’s action shall be dismissed as to the moving defendant. (Code Civ. Proc., § 1030, subd. (d).)

DISCUSSION

Out of State Residency

Plaintiff is a corporation incorporated in Ohio. (Motion, Ex. L; Opposition, Ex. 4.) Plaintiff concedes this fact. (Sparks Decl. ¶ 5, Ex. 4.)

Plaintiff argues that the real party in interest is not Defendant but his out-of-state insurance company. Be that as it may, section 1030, subdivision (a) requires only that a plaintiff reside outside of California. Therefore, the out-of-state residency is satisfied.

Reasonable Possibility of Prevailing

Both parties repeat and incorporate their arguments asserted in connection with Defendant’s motion for summary judgment and rely on the same evidence. Because many disputed facts exist, the Court cannot find at this stage that Defendant has shown a reasonable possibility of prevailing.

Affidavit in Support

Defendant requests an undertaking of $100,000.00 to secure an award of reasonable costs and expert expenses. Defendant states this amount is based on filing fees, costs for participating in at least 14 depositions, retention of multiple experts, and an anticipated fifteen day trial. (Yang Decl. ¶¶ 22-25.) The declaration, however, does not explain how this adds up to $100,000.00. For example, it does not state how much Defendant has incurred for the fourteen deposition that have already taken place or in the filing fees for already-filed documents. It does not state why Defendant expects to be able to recover the cost of experts, how many experts Defendant has retained, or the hourly rate of the experts. In sum, Defendant does not substantiate the reasonableness of the $100,000.00 request. For this additional reason, the motion is denied.

CONCLUSION

Defendant’s motion for an order requiring Plaintiff to file an undertaking is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.

Case Number: BC663164    Hearing Date: January 10, 2020    Dept: 48

MOTION FOR JUDGMENT ON THE PLEADINGS

MOVING PARTY: Defendant Behnam Ghodsian

RESPONDING PARTY(S): Plaintiff Crestbrook Insurance Company

PROOF OF SERVICE:

• Correct Address: Served by electronic service; stipulation to e-service filed on April 13, 2018.
• 16/25 (CCP § 1005(b): OK. Served by electronic service on December 9, 2019.

• DENY motion for judgment on the pleadings as to the fourth cause of action.

  ANALYSIS

  Motion For Judgment On The Pleadings

  Plaintiff’s Evidentiary Objections

  Declaration of Rey Yang

  No. 1: GRANT. Counsel’s characterization of the Court’s findings re: motion for determination of good faith settlement is not properly considered on a motion for judgment on the pleadings.

Discussion

1. Fourth Cause of Action (Negligence/Negligence Per Se).

The question of whether Plaintiff or Defendant is primarily liable is a question of fact which cannot be determined on a motion for judgment on the pleadings.

Moreover, regardless of whether the Wastewater Ordinance of the City of Beverly Hills (BHMC § 6-1-301) applies to the duty of care question, a negligence per se cause of action is not a separate cause of action for violation of the ordinance. Rather, it is a common law action for negligence, and the ordinance merely affects the evidentiary burden at trial.

Generally, “ ‘[t]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the  [*738] standard of care in a cause of action for negligence.’ [Citation.] [¶] The doctrine of negligence per se does not provide a private right of action for violation of a statute. [Citation.]” (Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555–556 [101 Cal. Rptr. 3d 726], quoting Millard v. Biosources, Inc., supra, 156 Cal.App.4th at p. 1353, fn. 2.) Under the doctrine, “the plaintiff ‘borrows’ statutes to prove duty of care and standard of care.” (179 Cal.App.4th at p. 558.)

Evidence Code section 669 provides that “negligence is presumed if the plaintiff establishes four elements: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence … the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. The first two elements are normally questions for the trier of fact, while the latter two elements are determined by the trial court as a matter of law. [Citation.]” (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420 [107 Cal. Rptr. 2d 50].)

Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-38.

In any event, BHMC § 6.1.307(G) is alleged in the 1AC to provide in part: “Maintenance and repair of house connection sewers . . . from the point of connection with the internal facility plumbing to the connection to the public sewer shall be the sole responsibility of the property owner.” 1AC, ¶ 25. The 1AC alleges that Doe 1 (demurring Defendant herein) was negligent in failing to properly maintain and repair the sewer lateral connection from the property, allowing penetration of tree roots and/or foreign materials to enter the City’s sewer system. 1AC, ¶¶ 25, 26. The allegations of the 1AC are taken to be true for purposes of a motion for judgment on the pleadings. County of Orange v. Association of Orange County Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32-33. The allegations are sufficient to give rise to a duty on the part of Defendant to maintain the sewer lateral connection on Defendant’s property.

Defendant did not request that the Court take judicial notice of the BHMC. Further, Defendant’s argument that Defendant had no independent access to the areas underneath the alley does not address Defendant’s ability to access the sewer lateral connection beneath his property (i.e., for instance by way of a scope inspection).

The motion for judgment on the pleadings as to the fourth cause of action is DENIED.

Case Number: BC663164    Hearing Date: January 03, 2020    Dept: 48

MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

MOVING PARTY: Plaintiff Crestbrook Insurance Company

RESPONDING PARTY(S): Defendant Behnam Ghodsian

PROOF OF SERVICE:

• Correct Address: Served by electronic service; stipulation to e-service filed on April 13, 2018.
• 16/25 (CCP § 1005(b): OK. Served by electronic service on October 25, 2019.

• DENY motion for leave to file a second amended complaint without prejudice.

  ANALYSIS

  Motion for Leave to File Second Amended Complaint

  Plaintiff’s Evidentiary Objections

  Declaration of Rey S. Yang

  No. 1: OVERRULED. Goes to weight.

  No. 2: OVERRULED. Goes to weight.

  No. 3: SUSTAINED. Irrelevant.

  No. 4: SUSTAINED. Irrelevant.

  No. 5: SUSTAINED. Irrelevant.

  No. 6: OVERRULED. Settlement discussions are inadmissible to prove liability. Evid. Code § 1152(a).

  No. 7: SUSTAINED. Irrelevant.

  No. 8: SUSTAINED. Irrelevant.

  No. 9: SUSTAINED. Irrelevant.

  No. 10: OVERRULED. Not inadmissible; permissible attorney argument.

  Defendant’s Evidentiary Objections

  Supplemental Declaration of Jeffrey C. Sparks

  No. 1: SUSTAINED. Submitted for first time in support of reply.

  Discussion

  Plaintiff Crestbrook Insurance Company moves for leave to file a second amended complaint.

  The Declaration of Jeffrey C. Sparks fails to comply with CRC Rule 3.1324(b) which states:

  (b)Supporting declaration a separate declaration must accompany the motion and must specify:

  (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.

  Indeed, even the Reply Sparks Declaration fails to address CRC Rule 3.1324(b).

  The motion for leave to file a second amended complaint is DENIED without prejudice.

Case Number: BC663164    Hearing Date: November 21, 2019    Dept: 48

MOTION TO CONTEST APPLICATION FOR GOOD FAITH DETERIMINATION OF SETTLEMENT

MOVING PARTY: Defendant Benham Ghodsian

RESPONDING PARTY(S): Defendant/Cross-Complainant City of Beverly Hills

PROOF OF SERVICE:

• Correct Address: Served by email; stipulation to e-service filed on April 13, 2018.
• 16/25 (CCP § 1005(b): OK. Served by email on September 25, 2019.

• DENY motion to contest the application for good faith determination of settlement filed by Defendant City of Beverly Hills.

  ANALYSIS

  Motion to Contest Good Faith Determination

  Defendant’s Evidentiary Objections

  Declaration of Rey S. Yang

  Nos. 1 – 5: OVERRULED. It appears that Defendant produced the document.

  No. 6, 7: SUSTAINED. Lack of foundation.

  Nos. 8, 9: SUSTAINED. Lack of authentication.

  No. 10: SUSTAINED. Lack of authentication.

  No. 11: SUSTAINED. Lack of foundation.

  No. 12: SUSTAINED. Lack of foundation.

  No. 13: SUSTAINED. Lack of authentication.

  No. 14: SUSTAINED. Lack of foundation.

  Discussion

  Defendant Benham Ghodsian contests the application for good faith determination of settlement filed by Defendant City of Beverly Hills on the ground that the proposed $400,000 settlement between the City of Beverly Hills and Plaintiff Crestbrook Insurance Company lacks good faith under CCP § 877.6 and the factors enumerated in Tech-Bilt.

  Moving party argues that the $400,000 settlement is not within the ballpark of the City’s proportionate share of liability because prior to the subject incident, there had been an alarming number of sewer overflows in the City’s sewers due to root blockage in lateral sewer lines, yet the City failed to inspect the lateral sewer lines between the Kachans’ and Ghodsian’s properties for more than a year, despite its maintenance schedule calling for 30-60-90 day preventative maintenance. On the date of the incident, the City found a mass of roots blocking 90% of the mainline at 30’ north of the downstream manhole at a location in a public alley. Ghodsian characterizes this as a dangerous condition on publicly-owned portions of the sewer system, subjecting the City to 100 percent of liability.

  Ghodsian also argues that the City’s settlement exposes Ghodsian to $2.5 million in liability when in fact, he had no knowledge of any issues in the City’s main sewer or in his own lateral sewer line. Meanwhile, the City’s $400,000 settlement accounts for less than 14% of Crestbrook’s $3 million demand for economic damages. Moreover, had the Kachans had a functioning backwater valve, the water would not have backed up into their property. Ghodsian objects to the shifting of the City’s and the Kachans’ own neglect onto Ghodsian.

  Ghodsian also points to the City’s insurance policy with AIG, which has a $15,000,000 per incident/$30,000,000 aggregate limit, and ARCH Insurance, which has a $15,000,000 per incident/$20,000,000 aggregate limit.

  The party asserting the lack of good faith has the burden of proof on that issue. CCP § 877.6(d). The Supreme Court has set forth several factors to consider when determining the good faith nature of a settlement: 1) rough approximate of plaintiff’s total recovery, 2) the settlor’s proportionate liability, 3) amount paid in settlement, 4) allocation of settlement proceeds among the plaintiffs, 4) recognition that a settler should pay less in settlement that he would if he were found liable after trial, 5) financial condition and insurance policy limits of the settling defendants, 6) the existence of collusion, fraud, or tortuous conduct aimed to injury the interests of non-settling defendants. Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499. In assessing the good faith of any settlement, the trial court must properly consider whether the proposed settlement was within the reasonable range of the settling tortfeasor’s total liability, taking into account the settling tortfeasor’s potential liability for indemnity. Far West Financial Corp. v. D&S Co. (1988) 46 Cal. 3d 796, 814-815.

  The California Supreme Court’s August 15, 2019 decision in City of Orville v. Superior Court (2019) 7 Cal.5^th 1091 effectively eliminated Plaintiff’s subrogated inverse condemnation claim against the City in holding as follows:

  When public improvements damage private property, property owners not compensated earlier may seek recovery through inverse condemnation claims. But to succeed, such claims must demonstrate more than just a causal link—however tenuous—between the existence of the public improvement and the property damage. Instead, inverse condemnation liability depends on whether the property damage was the probable result or necessary effect of an inherent risk associated with the design, construction, or maintenance of the relevant public improvement.

  The damage to WGS's property arguably bears some connection to the design, operation, and maintenance of the sewer system: The sewage passed through the system before emerging in the dentists' office, and it was perhaps possible in principle to design a sewage system that made backwater valves entirely redundant. Yet we cannot say the damage was substantially caused by that system when WGS failed to fulfill a responsibility to install a backwater valve, and that reasonable requirement would have prevented or substantially diminished the risk of the mishap that spawned this case. The backup of sewage into WGS's offices was not the necessary result or unavoidable consequence of any risk posed by the sewer system. And the City acted reasonably in adopting the sewer design and presuming private property owners would comply with the law by installing and maintaining backwater valve devices to prevent sewage backups into private property. The City is not liable in inverse condemnation. We reverse the judgment of the Court of [*1112]  Appeal and vacate its order denying the petition for writ of mandate and direct the Court of Appeal to remand this case to the superior court for further proceedings consistent with this opinion.

  City of Oroville v. Superior Court (2019) 7 Cal.5th 1091, 1111-12. (bold emphasis and underlining added).

  The City of Oroville court addressed the “substantial causation” requirement for inverse condemnation liability; it was not addressing liability for trespass or dangerous condition of public property, which were alternative theories of liability asserted against the City in the 1AC.

  If we adopted the reasoning from City of Palo Alto, as WGS urges, we would overlook a crucial aspect of the inverse condemnation inquiry. Indeed, under WGS's analysis, liability for the public entity would attach whenever a public improvement is a concurrent cause of damage to private property, regardless of whether private property owners acted to defeat the deliberate design or construction of the improvement. The principles underlying article I, section 19 cut against this conclusion. (Bacich, supra, 23 Cal.2d at p. 350 [citing concerns that “compensation allowed too liberally will seriously impede, if not stop, beneficial public improvements because of the greatly increased cost”].) Instead, a court reviewing an inverse condemnation claim arising from sewage overflow must consider whether the damages to private property were the direct and necessary effect of the inherent risks posed by the public improvement as deliberately designed, constructed, or maintained. And in a case like this, a reviewing court must also assess whether the damages were the result of a risk created not by the public improvement, but by the acts of the private property owner. A causal connection between the public improvement and the property damage alone is insufficient to sustain a finding of inverse condemnation liability.

  City of Oroville v. Superior Court (2019) 7 Cal.5th 1091, 1109 (bold emphasis added).

  The Supreme Court’s decision in City of Oroville did not eliminate the City’s potential liability for a dangerous condition of public property, as to which responsibility for a concurrent cause of injury will suffice. Bakity v. County of Riverside (1970) 12 Cal.App.3d 24, 29-30.

  While City of Oroville did not eliminate the dangerous condition of public property as a viable cause of action against the City, it did provide a basis for finding that the Kachans were contributorily negligent in failing to have a functioning backwater valve as required by law, to such a large degree that the City’s potential liability under this theory was relatively small. Contributory negligence is available as a defense in suits involving dangerous conditions on public property. Chase v. Shasta Lake Union School Dist. (1968) 259 Cal.App.2d 612, 615.

  Here, the evidence is that the Kachans failed to install a legally-required backwater valve. Under City of Oroville, there is a high probability that the blockage in the City’s sewage system would be found not to have been a substantial cause of the Kachans’ damages, because the installation of a backwater valve would have prevented or substantially diminished their damages. In this regard, even in the unlikely event that the City were found to be largely responsible for the damage to the Kachans’ property, the $400,000 settlement figure accounts for the recognition “that a settlor should pay less in settlement than he would if he were found liable after a trial.” Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499.

  In this regard, Ghodsian has failed to demonstrate that the $400,000 is so grossly disproportionate to what a reasonable person at the time of the settlement would estimate the City’s liability to be (Tech-Bilt, supra, 38 Cal.3d at 499-500), especially after the Supreme Court decided City of Oroville. For the sake of argument, even if the roots intruding in the private lateral did emanate from trees on Ghodsian’s property places some fault upon Ghodsian for failing to maintain his lateral drain (which Ghodsian disputes), this caused a blockage in the City’s sewage system. Vis-à-vis the City’s sewage system, the Kachans’ failure to install a legally-required backwater valve would be contributory negligence, equally available to Ghodsian at trial. There is a strong chance that a jury would find that the Kachans’ failure to install a legally-required backwater valve was the primary cause of their damages and that installation would have prevented the extensive damage to their home. Thus, the risk of Ghodsian’s exposure to liability for the full amount of damages sought by Plaintiff appears to be low. In any event, the City’s exposure to liability for the full amount of damages is low, and the potential liability for indemnity to Ghodsian as the non-settling defendant would also be low, even if the City had an opportunity to perform maintenance to clear the root blockage.

  In light of the foregoing, the Court finds that the $400,000 settlement is within the reasonable range of the City’s total liability, taking into account its potential liability for indemnity to Ghodsian. The Court does not find that the settlement was entered into as a product of collusion or fraud aimed to injure Ghodsian’s interests. The settlement was reached with the assistance of retired federal Magistrate Judge, Leo Papas, mediator with Judicate West, after the Supreme Court’s Oroville decision. Declaration of Saskia T. Asamura, ¶¶ 18 – 20. The decision to settle was made to avoid further litigation costs, including a motion for summary judgment scheduled to be heard in March 2020. Id. At ¶ 5.

  The Court notes that Ghodsian’s argument in the Reply brief that the City could be subjected to punitive damages ignores the fact that a public entity may not be held liable for punitive damages. Gov. Code § 818.

  Accordingly, the motion to contest the application for good faith determination of settlement filed by Defendant City of Beverly Hills is DENIED.