Tentative Rulings

Case Number: BC684829    Hearing Date: February 26, 2020    Dept: 32

Superior Court of California

County of Los Angeles

Department 32

Defendant Residential Elevators, LLC (“R.E.”) seeks a determination that its settlement with Plaintiff Omar Santiago Castro (“Plaintiff”) was made in good faith. Defendants 3608 Manhattan Avenue, LLC, Timothy R. Roth, and HB Construction (“Defendants”) have filed a motion to contest the application for determination of good faith settlement, which R.E. opposes.

In Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, the court set forth the factors to consider when determining whether a settlement is made in good faith.  The Tech-Bilt factors are: (1) a rough approximation of plaintiff’s total recovery and the settlor’s proportionate liability; (2) the amount paid in settlement; (3) the allocation of settlement proceeds among plaintiffs; (4) a recognition that a settlor should pay less in settlement than he would if he were found liable after a trial; (5) the financial conditions and insurance policy limits of settling defendants; and (6) the existence of collusion, fraud, or tortious conduct aimed to injure the interests of the non-settling defendants.  (Tech-Bilt, Inc. v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 498-501.)

In this case, Plaintiff fell through an elevator shaft at a construction site where he worked as a painter. R.E. was a contractor retained by Defendants to install an elevator at the site. Plaintiff has settled with Residential Elevators for $2,500. Residential Elevators argues that liability is tenuous per Privette v. Superior Court (1993) 5 Cal.4th 689. In that case, the California Supreme Court noted, “At common law, a person who hired an independent contractor generally was not liable to third parties for injuries caused by the contractor’s negligence in performing the work.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 693.) The court identified the peculiar risk doctrine as an exception to that general rule. “Under the peculiar risk doctrine, a person who hires an independent contractor to perform work that is inherently dangerous can be held liable for tort damages when the contractor’s negligent performance of the work causes injuries to others.” (Id. at 691.) The reason for the peculiar risk doctrine is to prevent a party from escaping liability for inherently dangerous activities by hiring independent contractors to undertake the inherently dangerous activities on its behalf. (Id. at 693-694.) The court held, however, that the peculiar risk doctrine does not extend to the employees of independent contractors, because the Workers’ Compensation Act entitles employees to benefits, and employees therefore have recourse for their injuries. (Id. at 702.) Nonetheless, “if a hirer does retain control over safety conditions at a worksite and negligently exercises that control in a manner that affirmatively contributes to an employee's injuries, it is only fair to impose liability on the hirer.” (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 213.)

This may be a strong reason for the Court to find the settlement to have been made in good faith. The problem, however, is that R.E. provides insufficient evidence in support of its position that the settlement was made in good faith. It appears to be undisputed that Plaintiff was an employee of a subcontractor hired by Defendants to perform work at the building. However, on this record, the Court cannot conclude that R.E. did not retain some control over the safety conditions. R.E. relies on Exhibit C to Gopal S. Patel’s declaration, which appears to be a contract between the general contractor and R.E. The declaration states:

Barricades and/or any/all other legal methods required by any jurisdiction to prevent access into shaft shall be required outside each floor landing for the protection of workmen and all other subcontractors and/or occupants until the elevator is installed completely and turned over to the homeowner. These devices shall be the sole responsibility of GC.

(Declaration of Gopal S. Patel, Exh. C.) There are two problems with this document. First, the document is not properly authenticated because it is not referenced in the declaration. Second, as counsel, Patel likely cannot authenticate the contract between the parties anyway, as that would be based on hearsay.

Putting that aside, the mere fact that such a contract existed does not mean that R.E. did not somehow cause the accident. For example, there is no declaration from an employee of R.E. confirming that R.E. retained no control over the safety conditions at the workplace and that R.E. actually observed this agreement. Reality is not necessarily consistent with the terms of a contract. Also, the contract addresses only barriers in front of the open elevator shafts. This is not the only potential safety condition at a construction site. For example, on this record, the Court cannot exclude the possibility that R.E. was responsible for policing its worksite for trip hazards (e.g., debris from a sloppy worksite, tools from R.E.’s work, etc.) and that R.E.’s failure to do so caused Plaintiff to trip and fall in the first place. Simply, there is no real evidence in support of R.E.’s request for a finding of good faith, i.e., declaration(s) from R.E. personnel and accompanying exhibits. Nor does R.E. discuss these issues sufficiently in the context of the Tech-Bilt factors. Therefore, the Court cannot determine whether the settlement was made in good faith.

Counsel also relies on Plaintiff’s deposition testimony. Plaintiff testified that he did not know R.E.’s role at the construction site. (Declaration of Gopal S. Patel, ¶ 4.) Plaintiff’s lack of knowledge does not necessarily preclude liability.

Finally, Defendants have demonstrated that R.E. agreed to indemnify Defendants for claims that did not result from Defendants’ sole negligence. (Opposition to Application for Determination of Good Faith Settlement, Exhibit A.) Accordingly, if R.E. bore any responsibility for this accident, R.E. is liable to Defendants. As discussed, the Court cannot exclude the possibility that R.E. bore some responsibility because R.E. provides the Court with no competent evidence. Simply, R.E. ultimately may be entitled to a finding that its settlement was made in good faith, but the Court intends to hold R.E. to its burden.

CONCLUSION AND ORDER

The Court continues the hearing on this motion to March 24, 2020, at 1:30 p.m. R.E. may file a supplemental opposition with competent evidence on or before March 6, 2020. Defendants may file a reply brief within statutory time periods. The Court’s clerk shall provide notice.

DATED: February 25, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court