This case was last updated from Los Angeles County Superior Courts on 08/15/2019 at 09:53:53 (UTC).

MWSK PROPERTIES, LLC VS SOUTH BAY MONTESSORI SCHOOL

Case Summary

On 01/02/2018 MWSK PROPERTIES, LLC filed a Property - Other Real Property lawsuit against SOUTH BAY MONTESSORI SCHOOL. This case was filed in Los Angeles County Superior Courts, Torrance Courthouse located in Los Angeles, California. The Judge overseeing this case is DEIRDRE HILL. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****2578

  • Filing Date:

    01/02/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Property - Other Real Property

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Torrance Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

DEIRDRE HILL

 

Party Details

Plaintiff

MWSK PROPERTIES LLC

Defendants

SOUTH BAY MONTESSORI SCHOOL

DOES 1-10 INCLUSIVE

DOES 1-10

Cross Plaintiffs and Cross Defendants

CONSTRUCTION PROBLEMS RESOLUTION INC.

GLUCK DEVELOPMENT COMPANY INC.

Cross Defendants

ZOES 1-30 INCLUSIVE

B.A. SIMS ENGINEERING INC.

CONSTRUCTION PROBLEMS RESOLUTION INC.

ASSOCIATED DESIGN SERVICES INC. DBA GUNDERLOCK & SON CONSTRUCTION

BENNETT ENTERPRISES A CALIFORNIA LANDSCAPE CONTRACTING CORPORATION DBA BENNETT LANDSCAPE

GLUCK DEVELOPMENT COMPANY INC.

OBELISK ARCHITECTS

PMC ENGINEERING INC.

Attorney/Law Firm Details

Plaintiff Attorneys

JONATHAN A. STIEGLITZ ESQ.

THE LAW OFFICE OF JONATHAN A. STIEGLITZ

STIEGLITZ JONATHAN A

Defendant Attorneys

GREENBERG GLUSKER FIELDS CLAMAN

HARRIS CHARLES LANE

Cross Plaintiff Attorneys

THORSON ERIC WILLIAM

LAURENCE PATRICK

Cross Defendant Attorney

LUNDY ALBRO LYNN

 

Court Documents

Legacy Document

1/9/2018: Legacy Document

Substitution of Attorney

4/24/2018: Substitution of Attorney

Case Management Statement

5/29/2018: Case Management Statement

Minute Order

6/11/2018: Minute Order

Notice of Ruling

6/12/2018: Notice of Ruling

Summons

6/29/2018: Summons

Case Management Statement

10/16/2018: Case Management Statement

Minute Order

10/31/2018: Minute Order

Challenge To Judicial Officer - Peremptory (170.6)

11/14/2018: Challenge To Judicial Officer - Peremptory (170.6)

Minute Order

11/15/2018: Minute Order

Notice of Ruling

11/21/2018: Notice of Ruling

Notice of Case Reassignment and Order for Plaintiff to Give Notice

12/26/2018: Notice of Case Reassignment and Order for Plaintiff to Give Notice

Stipulation - No Order

3/12/2019: Stipulation - No Order

Certificate

4/9/2019: Certificate

Proof of Personal Service

5/14/2019: Proof of Personal Service

Proof of Personal Service

5/14/2019: Proof of Personal Service

Answer

6/6/2019: Answer

Summons

6/6/2019: Summons

38 More Documents Available

 

Docket Entries

  • 01/15/2020
  • Hearingat 10:00 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Jury Trial

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  • 01/08/2020
  • Hearingat 08:30 AM in Department B at 825 Maple Ave., Torrance, CA 90503; Final Status Conference

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  • 06/07/2019
  • DocketRequest for Dismissal (as to Cross-Complaint filed by Gluck Development Company, Inc. as against Moe 4: Sims Engineering, Inc., only); Filed by Gluck Development Company, Inc. (Cross-Complainant)

    Read MoreRead Less
  • 06/07/2019
  • DocketRequest for Dismissal (as to the Cross-Complaint filed by Gluck Development Company, Inc. as Against Moe:5 Bennett Enterprises a California Landscape Contracting Co. dba Bennett Landscape); Filed by Gluck Development Company, Inc. (Cross-Complainant)

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  • 06/06/2019
  • DocketConstruction Problems Resolution, Inc's (Moe 6) Answer to Unverified Cross-Complaint of Gluck Development Company, Inc.; Filed by Construction Problems Resolution, Inc. (Cross-Defendant)

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  • 06/06/2019
  • DocketSummons (on Cross-Complaint); Filed by Construction Problems Resolution, Inc. (Cross-Defendant)

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  • 06/06/2019
  • DocketCross-Complaint (of Construction Problems Resolution, Inc.); Filed by Construction Problems Resolution, Inc. (Cross-Complainant)

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  • 05/14/2019
  • DocketProof of Personal Service; Filed by Gluck Development Company, Inc. (Cross-Complainant)

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  • 05/14/2019
  • DocketProof of Personal Service; Filed by Gluck Development Company, Inc. (Cross-Complainant)

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  • 05/10/2019
  • DocketProof of Personal Service; Filed by Obelisk Architects (Cross-Defendant)

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43 More Docket Entries
  • 04/24/2018
  • DocketSubstitution of Attorney; Filed by South Bay Montessori School (Defendant)

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  • 04/18/2018
  • DocketNotice of Status Conference and Order; Filed by Clerk

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  • 04/18/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 03/09/2018
  • DocketAnswer; Filed by South Bay Montessori School (Defendant)

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  • 03/06/2018
  • Docketat 08:30 AM in Department M; Unknown Event Type - Not Held - Advanced and Vacated

    Read MoreRead Less
  • 03/01/2018
  • DocketProof-Service/Summons; Filed by MWSK Properties, LLC (Plaintiff)

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  • 01/09/2018
  • DocketOSC-RE Other (Miscellaneous); Filed by Clerk

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  • 01/02/2018
  • DocketSummons; Filed by MWSK Properties, LLC (Plaintiff)

    Read MoreRead Less
  • 01/02/2018
  • DocketComplaint; Filed by MWSK Properties, LLC (Plaintiff)

    Read MoreRead Less
  • 01/02/2018
  • DocketNotice of Case Management Conference; Filed by Clerk

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Tentative Rulings

Case Number: YC072578    Hearing Date: June 25, 2020    Dept: SWM

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MWSK Properties, LLC,

Plaintiff,

Case No.:

YC072578

vs.

[Tentative] RULING

SOUTH BAY MONTESSORI SCHOOL,

Defendant.

Hearing Date: June 25, 2020

Moving Parties: Plaintiff MWSK Properties, LLC

Responding Party: None

Motion for Leave to File First Amended Complaint

The court considered the moving papers. No opposition was filed.

RULING

The motion to file first amended complaint is GRANTED. Plaintiff is ordered to file its FAC within five days.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant South Bay Montessori filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

On March 10, 2020, PMC filed an amendment designating Moe 1 as Obelisk Architects, Moe 2 as B.A. Sims Engineering, Inc., Moe 3 as Pacific Coast Structural Engineering, LLC, Moe 4 as T&M Projects, Inc., and Moe 5 as Norcal Engineering.

LEGAL AUTHORITY

CCP § 473(a)(1) provides, in relevant part: “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.”

“This discretion should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit.” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1047.

Under CRC Rule 3.1324(a), a motion to amend a pleading shall (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.

Under CRC Rule 3.1324(b), 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.

Even if a good amendment is proposed in proper form, a long, unwarranted and unexcused delay in presenting it may be a good reason for denial. In most cases, the factors for timeliness are: (1) lack of diligence in discovering the facts or in offering the amendment after knowledge of them; and (2) the effect of the delay on the adverse party. If the party seeking the amendment has been dilatory, and the delay has prejudiced the opposing party, the judge has 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.

DISCUSSION

Plaintiff requests leave to file a first amended complaint to add additional allegations at paras. 16, 18, 20, 21, 22, 23, and a cause of action for trespass and encroachment at paras. 32-38, and a prayer for punitive and exemplary damages.

Plaintiff explains that in September and November 2019 and February 2020, plaintiff took the deposition of Project Manager John Spock, PMK Ennio Schiappa, and Structural Engineer Jafar Hashemi, respectively. Plaintiff asserts that during the course of these depositions, plaintiff first became aware that the foundation and the CMU Wall of the building constructed on the 23104 property were built such that the foundation and CMU Wall encroach upon the 23112 property, and that South Bay failed to include sufficient details of the CMU Wall, the property line separating the properties, and the appropriate collection and run-offs required by the conditional use permit granted to South Bay to build its school. On March 2, 2020, the parties engaged in mediation, which was unsuccessful. Plaintiff contends that it does not anticipate any significant additional discovery due to the addition of the trespass claim and that it will not result in any delay. See declaration of William Hess.

The court finds that plaintiff has complied with CRC Rule 3.1324. There is no opposition.

The motion is therefore GRANTED.

Plaintiff is ordered to give notice of the ruling.

************************************************************

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. M

MWSK PROPERTIES, LLC,

Plaintiff,

Case No.:

YC072578

vs.

[Tentative] RULING

SOUTH BAY MONTESSORI SCHOOL,

Defendant.

Hearing Date: June 25, 2020

Moving Parties: Cross-defendant and cross-complainant Construction Problems Resolution, Inc. (“CPRI”)

Responding Party: Cross-defendant/cross-complainant Gluck Development Company, Inc. and joinder by PMC Engineering, Inc.

Motion for Determination of Good Faith Settlement

RULING

BACKGROUND

DISCUSSION

In City of Grand View Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court.  At the time of filing in many cases, the moving party does not know if a contest will develop.  If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party.  Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith.  If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party. 

192 Cal. App. 3d 1251, 1260-1261 (citation omitted).

“[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 or . . . 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).   

“The party asserting the lack of good faith shall have the burden of proof on that issue.”  CCP § 877.6(d).

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. 

The court considered the Tech-Bilt factors as applied to the settlement.

First, as to a rough approximation of plaintiff’s total recovery, plaintiff has asserted in its discovery responses that it has sustained $2 million in damages.  A large component of its damages is a loss of rent calculated at $8,500 per month since 2014. 

Second, as to CPRI’s proportionate liability, CPRI argues that it has no liability and that there is no evidence of wrongdoing by CPRI or how any wrongdoing caused plaintiff’s damages.  CPRI explains that it is a waterproofing consultant.  In April 2014, Project Management Collaborative contacted CPRI about having it provide certain waterproofing consulting services for an ongoing project involving the construction of the South Bay Montessori School in Torrance.  Project Management was acting as the construction manager on behalf of Mary Mellone/South Bay Montessori School.  At that time, Project Management’s primary issue of concern was the absence of waterproofing on the existing below-grade walls of the subterranean parking garage.  Thereafter, CPRI and South Bay entered into a written agreement whereby CPRI would review the waterproofing of the retaining walls, exterior vertical walls, and under slab water protection of the project.  The agreement provided that CPRI shall not be responsible for or liable for any other waterproofing area or issue not part of the proposal, and that CPRI had no responsibility for identifying any waterproofing problems not associated with the contracted work or for notifying any parties.  CPRI asserts that it had no authority, under the agreement or otherwise, to instruct or to direct any contractor or subcontractor to implement its opinions.  Randall Lim decl. 

CPRI contends that it was not requested to review or to provide any opinions concerning the onsite drainage systems or any drainage systems below grade at the project.  Its Site Review Reports states, “Review of the exterior plan of the retaining wall found no evidence of waterproofing or water protection.”  Under “Conclusions,” CPRI noted that, “Based on the observations of the current construction, the installation of the CMU retaining walls, . . . are in direct conflict with the plans of the architect’s designs and structural engineer’s designs and the geotechnical consultant’s recommendations. . . . Proper remedial action in compliance with plans and code would require removal of the existing concrete, CMU walls, and compacted grade to allow the installation of the designed vapor barrier and waterproofing systems.” 

In opposition, Gluck asserts that there was an on-site meeting (purportedly in September 2014) and that CPRI did not direct anyone to take down the wall or come up with any recommendation of how to waterproof the gap or recommend that alternative means to keep water out of the gap be explored.

In reply, CPRI contends that Gluck has provided no competent evidence that CPRI made any statements that was contrary to its written report, including that Randall Lim did not state that waterproofing of the South CMU wall “did not make any sense.”  CPRI contends that Lim’s field notes from his September 2014 visit make no reference to the South CMU Wall but only to the eastern property line.

Third, the parties settled for $10,000.

Fourth, as to the allocation of settlement proceeds, there is only one plaintiff.  

Fifth, the court recognizes that cross-defendant should pay less in settlement than if it were found liable after a trial.

Sixth, as to financial conditions and insurance policy limits of settling cross-defendant, CPRI’s insurance carrier agreed to pay $10,000 of a $1 million policy limit.

Seventh, as to whether there is evidence of collusion, fraud, or tortious conduct aimed to injure the interests of the other defendants, there is none.  Cross-defendant contends that they have been engaged in arms-length settlement negotiations since October 2019.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between plaintiff and cross-defendant CPRI was made in good faith within the meaning of CCP § 877.6.  Cross-defendant Gluck has not met its burden to show that the settlement was not made in good faith. 

The motion is GRANTED.

Moving cross-defendant is ordered to give notice of the ruling.

Case Number: YC072578    Hearing Date: March 17, 2020    Dept: SWB

Superior Court of California

County of Los Angeles

Southwest District

Torrance Dept. B

MWSK PROPERTIES, LLC,

Plaintiff,

Case No.:

YC072578

vs.

[Tentative] RULING

SOUTH BAY MONTESSORI SCHOOL,

Defendant.

Hearing Date: March 17, 2020

Moving Parties: Cross-defendant and cross-complainant Construction Problems Resolution, Inc.

Responding Party: Cross-defendant/cross-complainant Gluck Development Company, Inc. and joinder by PMC Engineering, Inc.

Motion for Determination of Good Faith Settlement

The court considered the moving, opposition, and reply papers.

RULING

The motion is GRANTED. The court ORDERS that in this action, all present claims and cross-complaints of any kind for implied indemnity, equitable comparative contribution and apportionment or partial or comparative indemnity and apportionment based on comparative negligence or comparative fault against CPRI be and are dismissed with prejudice. Any and all present and future claims against CPRI by or on behalf of joint tortfeasors or co-obligors are barred.

BACKGROUND

On January 2, 2018, plaintiff MWSK Properties, LLC filed a complaint against defendant South Bay Montessori School for (1) declaratory and injunctive relief and (2) nuisance. Plaintiff alleges that it is the owner of real property located at 23112 Hawthorne Blvd., Torrance. Defendant is the owner or leaseholder of 23104 Hawthorne Blvd., Torrance. Plaintiff’s property is a commercial lot. There is approximately 10,000 square feet of ground floor space utilized for retail and office space on the lot (“23112 Building”). The 23104 property is immediately adjacent and north of plaintiff’s 23112 property. Between January 2013 and September 2016, defendant made improvements to the 23104 property. From the time defendant completed the 23104 improvements until the present the 23112 building has experienced significant water intrusion. In making its improvements, defendant has failed to provide for appropriate collection and run-offs from the 23104 property and in doing so has caused significant water intrusion and water damage to the 23112 property and building. Plaintiff has been unable to lease out space within the 23112 building and has losses and lost profits stemming from the water damage.

On June 28, 2018, defendant filed a cross-complaint against Gluck Development Company, Inc. and Associated Design Services, Inc. dba Gunderlock & Son Construction for (1) implied equitable indemnity, (2) contribution, and (3) declaratory relief.

On January 11, 2019, Gluck Development Company, Inc. filed a cross-complaint against Moes 1 to 5 for (1) equitable indemnity, (2) contribution and equitable apportionment, and (3) declaratory relief.

On April 19, 2019, Gluck filed an amendment designating Moe 1 as Associated Design Services, Inc. dba Gunderlock & Son Construction, Moe 2 as PMC Engineering, Inc., Moe 3 Obelisk Architects, Moe 4 as B.A. Sims Engineering, Inc., Moe 5 as Bennett Enterprises, and Moe 6 as Construction Problems Resolution, Inc.

On June 6, 2019, Construction Problems Resolution filed a cross-complaint against Zoes 1-30 for indemnity, declaratory relief, and contribution.

On November 15, 2019, PMC Engineering, Inc. filed a cross-complaint for indemnity, declaratory relief, and contribution.

DISCUSSION

Cross-defendant and cross-complainant Construction Problems Resolution, Inc. (“CPRI”) requests an order that the settlement entered into by it and plaintiff was made in good faith.

In City of Grand View Terrace v. Superior Court (1987) 192 Cal. App. 3d 1251, 1261, the court provided the following guidance regarding a motion for a good faith settlement determination:

This court notes that of the hundreds of motions for good faith determination presented for trial court approval each year, the overwhelming majority are unopposed and granted summarily by the trial court. At the time of filing in many cases, the moving party does not know if a contest will develop. If each motion required a full recital by declaration or affidavit setting forth a complete factual response to all of the Tech-Bilt factors, literally thousands of attorney hours would be consumed and inch-thick motions would have to be read and considered by trial courts in an exercise which would waste valuable judicial and legal time and clients’ resources. . . . That is to say, when no one objects, the barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case is sufficient.

If the good faith settlement is contested, section 877.6, subdivision (d), sets forth a workable ground rule for the hearing by placing the burden of proving the lack of good faith on the contesting party. Once there is a showing made by the settlor of the settlement, the burden of proof on the issue of good faith shifts to the nonsettlor who asserts that the settlement was not made in good faith. If contested, declarations by the nonsettlor should be filed which in many cases could require the moving party to file responsive counterdeclarations to negate the lack of good faith asserted by the nonsettling contesting party.

192 Cal. App. 3d 1251, 1260-1261 (citation omitted).

“[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 or . . . 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).

“The party asserting the lack of good faith shall have the burden of proof on that issue.” CCP § 877.6(d).

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.

The court considered the Tech-Bilt factors as applied to the settlement.

First, as to a rough approximation of plaintiff’s total recovery, plaintiff has asserted in its discovery responses that it has sustained $2 million in damages. A large component of its damages is a loss of rent calculated at $8,500 per month since 2014.

Second, as to CPRI’s proportionate liability, CPRI argues that it has no liability and that there is no evidence of wrongdoing by CPRI or how any wrongdoing caused plaintiff’s damages. CPRI explains that it is a waterproofing consultant. In April 2014, Project Management Collaborative contacted CPRI about having it provide certain waterproofing consulting services for an ongoing project involving the construction of the South Bay Montessori School in Torrance. Project Management was acting as the construction manager on behalf of Mary Mellone/South Bay Montessori School. At that time, Project Management’s primary issue of concern was the absence of waterproofing on the existing below-grade walls of the subterranean parking garage. Thereafter, CPRI and South Bay entered into a written agreement whereby CPRI would review the waterproofing of the retaining walls, exterior vertical walls, and under slab water protection of the project. The agreement provided that CPRI shall not be responsible for or liable for any other waterproofing area or issue not part of the proposal, and that CPRI had no responsibility for identifying any waterproofing problems not associated with the contracted work or for notifying any parties. CPRI asserts that it had no authority, under the agreement or otherwise, to instruct or to direct any contractor or subcontractor to implement its opinions. Randall Lim decl.

CPRI contends that it was not requested to review or to provide any opinions concerning the onsite drainage systems or any drainage systems below grade at the project. Its Site Review Reports states, “Review of the exterior plan of the retaining wall found no evidence of waterproofing or water protection.” Under “Conclusions,” CPRI noted that, “Based on the observations of the current construction, the installation of the CMU retaining walls, . . . are in direct conflict with the plans of the architect’s designs and structural engineer’s designs and the geotechnical consultant’s recommendations. . . . Proper remedial action in compliance with plans and code would require removal of the existing concrete, CMU walls, and compacted grade to allow the installation of the designed vapor barrier and waterproofing systems.”

In opposition, Gluck asserts that there was an on-site meeting (purportedly in September 2014) and that CPRI did not direct anyone to take down the wall or come up with any recommendation of how to waterproof the gap or recommend that alternative means to keep water out of the gap be explored.

In reply, CPRI contends that Gluck has provided no competent evidence that CPRI made any statements that was contrary to its written report, including that Randall Lim did not state that waterproofing of the South CMU wall “did not make any sense.” CPRI contends that Lim’s field notes from his September 2014 visit make no reference to the South CMU Wall but only to the eastern property line.

Third, the parties settled for $10,000.

Fourth, as to the allocation of settlement proceeds, there is only one plaintiff.

Fifth, the court recognizes that cross-defendant should pay less in settlement than if it were found liable after a trial.

Sixth, as to financial conditions and insurance policy limits of settling cross-defendant, CPRI’s insurance carrier agreed to pay $10,000 of a $1 million policy limit.

Seventh, as to whether there is evidence of collusion, fraud, or tortious conduct aimed to injure the interests of the other defendants, there is none. Cross-defendant contends that they have been engaged in arms-length settlement negotiations since October 2019.

After considering the Tech-Bilt factors, the court finds and determines that the settlement entered into between plaintiff and cross-defendant CPRI was made in good faith within the meaning of CCP § 877.6. Cross-defendant Gluck has not met its burden to show that the settlement was not made in good faith.

The motion is GRANTED.

Moving cross-defendant is ordered to give notice of the ruling.