Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C06-01827.
Siggins, J.
Code of Civil Procedure section 877.6 provides that a good faith settlement between a plaintiff and an alleged joint tortfeasor bars claims against the settling tortfeasor for contribution and equitable indemnity. In this action arising out of a single vehicle accident, plaintiff Dennis Jensen sued defendant and cross-complainant Diablo Marine & Trailer (Diablo), the retailer/installer of certain brake parts, alleging negligence and strict products liability. Diablo cross-complained for contribution and indemnity against cross-defendants Tie Down Engineering, Inc. (Tie Down), the manufacturer of the parts, and Fox Marine Company, Inc. (Fox), the distributor. After Tie Down and Fox settled with Jensen, the trial court determined the settlements were made in good faith and dismissed Diablo’s cross-complaint.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Diablo appeals, challenging the trial court’s determination of good faith, its dismissal of the cross-complaint, and its failure to rule on evidentiary objections. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The Accident
On September 16, 2005, at approximately 11:54 a.m., Jensen was involved in a single motor vehicle accident and sustained injuries while driving his pickup truck and pulling his trailer and boat. Prior to the accident, Jensen picked up his boat and trailer from Diablo’s shop, where Diablo had performed work on the trailer that included replacing the trailer wheel brake cylinders. On State Route 4 near Pittsburg, California, Jensen lost control of his truck, and it overturned. Jensen was ejected through the broken driver’s door window, and his legs were pinned under the truck. He sustained a head injury and multiple fractures, and claimed to have cognitive deficits resulting from the accident, including memory impairment, vertigo, dizziness, and difficulty with multitasking.
Based on witness statements and physical evidence, the highway patrol officer who investigated the accident concluded that Jensen caused the accident by violating Vehicle Code section 21711, which provides that no person shall operate a train of vehicles when a towed vehicle whips or swerves from side to side or fails to follow substantially in the path of the towing vehicle.
B. The Pleadings
Jensen sued Diablo, asserting causes of action for negligence and strict products liability. Jensen contended Diablo performed negligent work and installed defective brake cylinders. Jensen did not sue Tie Down or Fox.
Diablo cross-complained against Tie Down and Fox for (1) declaratory relief based on equitable indemnity, (2) apportionment of fault and contribution, and (3) indemnity. In the cross-complaint, Diablo denied Jensen’s allegations of negligence and product defects. Diablo alleged, however, that, if it were found liable to Jensen, it would be entitled to contribution and indemnity from Tie Down and Fox. In part, Diablo alleged that any liability to Jensen would be the result of Tie Down’s and Fox’s negligence or other tortious conduct.
C. The Motions for Good Faith Settlement Determinations
In October 2009, Tie Down and Fox settled with Jensen, and filed motions asking the trial court to determine, under section 877.6, that the settlements were made in good faith. Tie Down settled for $125,000; Fox settled for $50,000. In support of their motions, Tie Down and Fox submitted declarations by their counsel. Each declaration stated the amount of the settlement and counsel’s basis for considering the settlement was reasonable and in good faith under applicable legal standards. The record does not reflect that Tie Down or Fox submitted other evidence with their moving papers. Tie Down and Fox also requested that the court dismiss Diablo’s cross-complaint as permitted under California Rules of Court, rule 3.1382.
Copies of written settlement agreements are not included in the record, so we are not aware of all the terms of the settlements.
Diablo opposed the motions and filed written objections to portions of the attorney declarations submitted by Tie Down and Fox. Diablo argued that the portions of the declarations addressing the valuation of Jensen’s damages and the likelihood of his recovery were speculative and lacked foundation and evidentiary support. Diablo also submitted evidence in support of its opposition briefs, including an attorney declaration and copies of certain pleadings and discovery requests and responses.
Tie Down and Fox submitted additional evidence along with their reply briefs. This evidence included excerpts of the depositions of Jensen, witnesses to the accident, the highway patrol officer who investigated the accident, hospital personnel, and Diablo co-owner Leo Bartneck; medical records and reports of medical and psychological evaluations of Jensen; and declarations of consultants retained by Tie Down.
Tie Down and Fox thereafter filed supplemental briefs. At the same time, Fox submitted additional evidence, including a report prepared by an expert retained by Jensen, as well as additional excerpts of Bartneck’s deposition.
D. The Hearing and Rulings on the Motions
At the hearing on the motions, the court stated: “I’ve read all the motions and considered the arguments, and did a little research of my own and my conclusion is the motion should be granted, irrespective of my gut feeling, I guess, that somehow it seemed inequitable. [¶] I think the case law is very clear that under—so long as the settlements meet the criteria of [Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488], then the motion should be granted.”
Diablo’s counsel began by orally objecting to the evidence Tie Down and Fox had submitted in connection with their reply and supplemental briefs. Diablo’s counsel argued that the evidence was not timely submitted, and that Tie Down and Fox were required to submit any supporting evidence with their moving papers. The court did not rule expressly on the objections, and Diablo’s counsel proceeded with her argument on the merits.
The court granted Tie Down’s and Fox’s motions and concluded the settlements were made in good faith. The court stated: “I did not specifically rely on any new evidence in any of the supplemental declarations. I relied, primarily, on the law that was cited.” The court stated that “all of the criteria of factors set forth in Tech-Bilt, the standards have been met in this case based on Diablo’s argument that there is no product defect.” The court also stated that Jensen’s negligence claim against Diablo appeared to be stronger than his product defect claim.
Diablo’s counsel argued the court could not give good faith approval to the settlements by Tie Down and Fox unless the court also dismissed Jensen’s strict products liability claim against Diablo. Jensen’s counsel opposed dismissal of the strict products liability claim, and the court declined to dismiss it.
Following the hearing, the court entered written orders in which it ruled the settlements were made in good faith, granted Tie Down’s and Fox’s motions, and dismissed Diablo’s cross-complaint.
E. Diablo’s Appellate Challenges
Diablo challenged the trial court’s orders with timely petitions for writs of mandate (see § 877.6, subd. (e)), in which it asked this court to stay proceedings in the superior court pending a decision on the petitions. This court summarily denied the writ petitions and the related stay requests.
Diablo also filed a timely notice of appeal.
II. DISCUSSION
A. Legal Framework and Standard of Review
1. Sections 877 and 877.6
Section 877 provides in part: “Where a release, dismissal with or without prejudice, or a covenant not to sue or not to enforce judgment is given in good faith before verdict or judgment to one or more of a number of tortfeasors claimed to be liable for the same tort, ... it shall have the following effect: [¶] (a) It shall not discharge any other such party from liability unless its terms so provide, but it shall reduce the claims against the others in the amount stipulated by the release, the dismissal or the covenant, or in the amount of the consideration paid for it whichever is the greater. [¶] (b) It shall discharge the party to whom it is given from all liability for any contribution to any other parties.”
Section 877.6 states in pertinent part: “(a)(1) Any party to an action in which it is alleged that two or more parties are joint tortfeasors... shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors... [¶]... [¶] (b) The issue of the good faith of a settlement may be determined by the court on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing. [¶] (c) A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor... from any further claims against the settling tortfeasor... for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault. [¶] (d) The party asserting the lack of good faith shall have the burden of proof on that issue.”
These statutes have two objectives: the equitable sharing of costs among the parties at fault and the encouragement of settlements. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985)38 Cal.3d 488, 494 (Tech-Bilt).)
As we discuss further in part II.C.3 below, sections 877 and 877.6 apply “where the settling tortfeasor is merely a cross-defendant in an action for comparative or partial equitable indemnity and is not a defendant in the main action itself.” (See Widson v. International Harvester Co. (1984) 153 Cal.App.3d 45, 57 (Widson), superseded on other grounds by statute as stated in Millard v. Biosources, Inc. (2007) 156 Cal.App.4th 1338, 1349-1350; Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1347 (Mattco).)
2. Determination of Good Faith
In Tech-Bilt, the Supreme Court held that, in determining whether a settlement is made in good faith, a trial court should inquire “whether the amount of the settlement is within the reasonable range of the settling tortfeasor’s proportional share of comparative liability for the plaintiff’s injuries.” (Tech-Bilt, supra, 38 Cal.3d at p. 499.) The factors to be taken into account in the determination of whether a settlement is in “good faith” include: “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.” (Ibid.) Practical considerations require that the evaluation be made on the basis of information available at the time of settlement. (Ibid.) “ ‘[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.’ ” (Ibid.)
3. Standard of Review
Whether a settlement is in good faith ordinarily is left to the discretion of the trial court, and its decision may be reversed only upon a showing of abuse of discretion. (Tech-Bilt, supra, 38 Cal.3d at p. 502; TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 165; Mattco, supra, 38 Cal.App.4th at p. 1349.)
In assessing whether a trial court’s good faith determination is an abuse of discretion, we consider whether the decision is supported by substantial evidence. (See Mattco, supra, 38 Cal.App.4th at pp. 1351-1352; accord, Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 962-963.) The party asserting a lack of good faith has the burden of proof. (§ 877.6, subd. (d).) However, the statutory requirement of good faith presents an issue of fact, and a finding of good faith therefore must be supported by substantial evidence. (See City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1264-1265 (Grand Terrace); Mattco, supra, at p. 1350, fn. 6.) Once an objecting party challenges a settlement, the moving party must “file counteraffidavits (§ 877.6, subd. (b)) to make an evidentiary showing that the settlement was ‘in the ballpark.’ In the absence of such a showing by [the parties] seeking approval of the good faith settlement, there is ‘no substantial evidence to support a critical assumption as to the nature and extent of [the] settling [parties’] liability[.]’ ” (Mattco, supra, at p. 1350, fn. 6.)
Finally, if an appeal presents an issue of statutory interpretation and the application of the statute to undisputed facts, the question is one of law subject to independent review. (Be v. Western Truck Exchange (1997) 55 Cal.App.4th 1139, 1143.)
B. Diablo’s Evidentiary Objections
1. The Trial Court’s Failure to Rule Expressly on the Objections Does Not Require Reversal
Diablo argues the trial court committed reversible error when it failed to rule expressly on Diablo’s objections to evidence, which included (1) written objections to the declarations Tie Down and Fox submitted with their moving papers, and (2) an oral objection that the additional evidence Tie Down and Fox submitted with their reply and supplemental briefs was untimely.
Diablo relies on Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633. Vineyard Springs was a writ proceeding following the denial of a defendant’s summary judgment motion. The appellate court held that, under the summary judgment statute, a trial court must rule on evidentiary objections. (Id. at p. 642.) The court also noted that when a trial court failed to rule on summary judgment evidentiary objections, the objections were ordinarily deemed waived on appeal. (Id. at pp. 642-643.) The Vineyard Springs court issued a writ of mandate requiring the trial court to rule on the defendant’s evidentiary objections and reconsider the summary judgment motion. (Id. at p. 643.)
More recently, and also in the summary judgment context, in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532, our Supreme Court held, consistent with Vineyard Springs, that a trial court must rule expressly on evidentiary objections when considering a summary judgment motion. However, contrary to the prior rule, a trial court’s failure to do so does not result in the waiver of the objections on appeal. (Reid v. Google, Inc., supra, 50 Cal.4th at pp. 526-527, fn. 5.) Instead, it is presumed the objections were overruled, the trial court considered the evidence when ruling on the summary judgment motion, and the objections are preserved for appeal. (Id. at p. 534.) The burden is on the objecting party to renew the objections in the appellate court. (Ibid.)
These cases do not establish that a trial court’s failure to rule expressly on evidentiary objections outside the summary judgment context constitutes reversible error. (See Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 68 [rejecting argument that failure to rule on evidentiary objections concerning a motion for attorney fees and costs was “prejudicial or reversible per se on appeal”; at best objectors’ requests for a ruling preserved objections for appeal]; see Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1580-1581 [finding Vineyard Springs rationale inapplicable to anti-SLAPP motion].)
The trial court’s failure to rule expressly on Diablo’s evidentiary objections thus does not compel reversal of the judgment. Instead, Diablo preserved its objections for appeal (see Reid v. Google, Inc., supra, 50 Cal.4th at p. 534; Gorman v. Tassajara Development Corp., supra, 178 Cal.App.4th at p. 68; Siam v. Kizilbash, supra, 130 Cal.App.4th at pp. 1580-1581), and had the burden to renew them in this court. (See Reid v. Google, Inc., supra, at p. 534.)
2. The Trial Court Was Not Required to Exclude Tie Down’s and Fox’s Evidence as Untimely
Diablo contends that Tie Down and Fox were obligated to submit all supporting evidence with their moving papers, and that the trial court should have excluded the evidence submitted with their reply and supplemental briefs. Diablo is incorrect.
Section 877.6, subdivision (b) expressly provides that a trial court, in determining the issue of good faith, may consider more than just the evidence submitted with a moving party’s initial papers. The court may decide the issue “on the basis of affidavits served with the notice of hearing, and any counter affidavits filed in response, or the court may, in its discretion, receive other evidence at the hearing.” (§ 877.6, subd. (b), italics added.)
Courts have also explained that the initial moving papers in support of a motion for approval of good faith settlement need not include a detailed evidentiary showing on each of the Tech-Bilt factors. Instead, it is sufficient for a moving party to file a “barebones motion which sets forth the ground of good faith, accompanied by a declaration which sets forth a brief background of the case.” (Grand Terrace, supra, 192 Cal.App.3d at p. 1261; accord, Mattco, supra, 38 Cal.App.4th at p. 1350, fn. 6.) The Grand Terrace court held that such a bare showing is appropriate in part because “the overwhelming majority” of such motions “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.” (Grand Terrace, supra, at p. 1261.) Accordingly, it would be a waste of judicial and client resources to require a full evidentiary showing in the initial moving papers in each case. (Ibid.)
An additional reason for this rule, noted by the court in Mattco, is that the party asserting the lack of good faith has the burden of proof on that issue. (§ 877.6, subd. (d).) A party moving for settlement approval thus is not required to make an initial evidentiary showing as to its proportionate liability. (Mattco, supra, 38 Cal.App.4th at p. 1350, fn. 6.) However, once an objecting party attacks the settlement as lacking good faith, its proponent must “file counteraffidavits (§ 877.6, subd. (b)) to make an evidentiary showing that the settlement was ‘in the ballpark.’ ” (Ibid.; accord, Grand Terrace, supra, 192 Cal.App.3d at pp. 1261-1262.) An objecting nonsettlor may “move for a continuance of the hearing, if necessary, for the purpose of gathering facts, which could include further formal discovery, to support its statutory burden of proof as to all Tech-Bilt factors nonsettlors placed in issue in order that the matter can be fully and fairly litigated.” (Grand Terrace, supra, at p. 1265.)
As allowed by Grand Terrace and Mattco, Tie Down and Fox included only short attorney declarations with their initial motions. After Diablo objected that the settlements were not in good faith, Tie Down and Fox submitted additional evidence with their reply and supplemental briefs. The trial court was not required to exclude this evidence as untimely. (§ 877.6, subd. (b); Mattco, supra, 38 Cal.App.4th at p. 1350, fn. 6; accord, Grand Terrace, supra, 192 Cal.App.3d at pp. 1261-1262.)
At the hearing, the trial court stated it “did not specifically rely on any new evidence in any of the supplemental declarations[, ]” but relied primarily on “the law that was cited.” However, at an earlier point in the hearing, the trial court suggested it had considered some of the new evidence; for example, the court stated it had reviewed the testimony of Diablo co-owner Leo Bartneck (which was first submitted with the reply briefs) in assessing the likelihood Diablo would be found liable at trial on a negligence theory. The trial court did not expressly exclude the evidence as untimely, and it is properly in the record for purposes of assessing whether there is substantial evidence supporting the trial court’s decision.
Diablo argues Grand Terrace is distinguishable, because here Tie Down and Fox did know Diablo would oppose the settlement. Diablo contends, without citation to the record, that it had objected to any settlement discussions between Jensen, Tie Down and Fox. Diablo asserts that therefore Tie Down and Fox were obligated to submit all supporting evidence with their moving papers. We disagree. Even if Tie Down and Fox had reason to believe Diablo would object to the settlement, there is nothing to suggest they would know which of the Tech-Bilt factors Diablo would put in issue. (See Grand Terrace, supra, 192 Cal.App.3d at p. 1265.) More generally, because Diablo had the burden to prove a lack of good faith (§ 877.6, subd. (d)), Tie Down and Fox were not obligated to predict and respond with evidence to all the arguments Diablo might make in seeking to meet its burden. (See Mattco, supra, 38 Cal.App.4th at p. 1350, fn. 6.) Instead, Tie Down’s and Fox’s burden to produce evidence supporting the settlements arose after Diablo challenged their good faith. (Ibid.)
3. Diablo’s Other Objections
Diablo also notes that it filed written objections to the attorney declarations Tie Down and Fox submitted with their moving papers. However, Diablo does not discuss or argue the merits of those written objections, and focuses instead on the trial court’s failure to rule on them. Diablo thus has failed to renew these objections on appeal, and we deem them forfeited. (See Reid v. Google Inc., supra, 50 Cal.4th at p. 534 [in summary judgment context, objections not ruled on by trial court are preserved for appeal; objecting party has burden to renew objections in appellate court].) Moreover, we conclude in part II.C below that there is sufficient evidence in the record in addition to these attorney declarations to support the trial court’s finding of good faith. Thus, even if the objections to the attorney declarations were not forfeited, we would not need to consider them. (Cf. Siam v. Kizilbash, supra, 130 Cal.App.4th at pp. 1580-1581 [in context of anti-SLAPP motion, reviewing court found sufficient admissible evidence to support trial court’s conclusion; accordingly, the admissibility of other evidence was immaterial].)
C. Substantial Evidence Supports the Determination of Good Faith
Diablo contends it was error for the trial court to conclude the settlements were made in good faith. We disagree. Applying the Tech-Bilt framework, the trial court’s decision is supported by substantial evidence and thus is not an abuse of discretion.
1. Tie Down’s and Fox’s Proportionate Liability
One of the most important factors in determining the good faith of a settlement is the settling party’s proportionate liability. (Mattco, supra, 38 Cal.App.4th at p. 1350.) Here, substantial evidence supports the conclusion that the settlement amounts agreed to by Tie Down and Fox—$125,000 and $50,000, respectively—are not “ ‘grossly disproportionate to what a reasonable person, at the time of the settlement, would estimate [their] liability to be.’ ” (Tech-Bilt, supra, 38 Cal.3d at p. 499.)
In his March 2007 statement of damages provided during discovery, Jensen claimed he suffered $3 million in general damages for pain, suffering, and inconvenience, as well as $451,557.26 in medical expenses and an unknown amount of future medical expenses. Jensen was a 62-year-old retiree at the time of the accident and did not claim a loss of income. Diablo asserts the settlement amounts agreed to by Tie Down and Fox in October 2009 are disproportionately low because they are small percentages of the total amount initially claimed by Jensen in his statement of damages. However, the evidence submitted by Tie Down and Fox supported a conclusion that Jensen’s likely recovery, and Tie Down’s and Fox’s proportionate liability, were much lower than the full amount Jensen claimed more than two and one-half years prior to the settlements.
In February 2009, Jensen served on Diablo an offer to compromise under section 998 for $1 million.
First, a plaintiff’s high initial demand is not controlling in assessing the good faith of a settlement if there is evidence that the demand is exaggerated or that actual damages are lower. (See Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1028 [where evidence showed plaintiff’s $1 million demand was “grossly exaggerated, ” $30,000 settlement was in good faith]; accord, Norco Delivery Service, Inc. v. Owens-Corning Fiberglas, Inc., supra, 64 Cal.App.4th at pp. 962-963.) As noted above, Jensen claimed that, in addition to the physical injuries he sustained in the accident, he had ongoing cognitive difficulties, such as dizziness, memory impairment, and difficulty with multitasking. The evidence submitted by Tie Down and Fox supported a conclusion that any such difficulties had minimal effect.
In October and November 2007, Jensen underwent a neurologic and psychiatric independent medical evaluation (IME) with Dr. Mark Strassberg, and a neuropsychological IME with Ronald Roberts, Ph.D. In their reports, Drs. Strassberg and Roberts concluded Jensen’s physical and psychological injuries had substantially improved. Dr. Strassberg noted that Jensen sustained a head injury and multiple fractures in the accident, but had “substantially improved from his original condition.” Jensen’s “overall functioning” was similar to that prior to the accident. Although Jensen reported some minor cognitive problems, they did not evidence themselves on testing. From a neurologic and psychiatric point of view, ongoing treatment was not necessary.
Similarly, Dr. Roberts concluded that Jensen was “generally functioning within normal limits in all spheres.” When Jensen experienced pain, he was also likely to experience “some mild compromises in his cognitive capacities[, ]” but did “not appear to be manifesting significant signs of brain impairment” from the accident. To the extent Jensen’s initial claims were based on his allegation of significant, long-term physical and neurological problems, this evidence supports a conclusion that Jensen’s injuries were less severe, and his damages lower, than he originally claimed.
Second, and more important, the evidence before the court supported Tie Down’s and Fox’s contention that, at most, they bore only minor responsibility for Jensen’s accident and injuries. (See Bay Development, Ltd. v. Superior Court, supra, 50 Cal.3d at p. 1028 [good faith determination supported by evidence that, “at most, [the settling party] bore only minor responsibility” for alleged misrepresentations].) Specifically, the evidence supported a conclusion that Jensen caused the accident by speeding and driving while intoxicated, and contributed to the severity of his injuries by not wearing a seatbelt. Comparative fault principles apply to apportion responsibility between a strictly liable defendant and a negligent plaintiff in a product liability action. (Daly v. General Motors Corp. (1978) 20 Cal.3d 725, 742; Safeway Stores, Inc. v. Nest-Kart (1978) 21 Cal.3d 322, 325.) Accordingly, Jensen’s negligence, if proven, would reduce any liability faced by Tie Down and Fox.
Christine Rosa and Sonja Lewis witnessed the accident. They each testified they saw Jensen’s trailer swerving or fishtailing as Jensen descended a hill on the freeway before the accident, and the truck later began swerving as well. It was a very windy day, and Jensen was driving between 60 and 65 miles per hour. Rosa told highway patrol officer Michael Taylor she wondered why Jensen was driving so fast.
When Jensen’s truck and trailer crashed, Lewis stopped and found Jensen outside his truck with his legs pinned under the truck. Upon arriving at the scene, Officer Taylor saw that the driver’s side window of Jensen’s truck was broken. Based on Lewis’s statement and the broken window, Officer Taylor concluded Jensen was not wearing his seatbelt and was ejected out the driver’s side window of the truck.
Officer Taylor also testified there were long skid marks on the highway where Jensen went off the road. To Officer Taylor this showed that Jensen had applied the truck’s brakes and that the brakes were working. Officer Taylor did not recall whether he had the opportunity to test the brakes himself because the truck was not on the roadway.
Based on the physical evidence and witness statements, Officer Taylor concluded that Jensen caused the accident by violating Vehicle Code section 21711, which provides that no person shall operate a train of vehicles when a towed vehicle whips or swerves from side to side or fails to follow substantially in the path of the towing vehicle. Officer Taylor testified that driving at an excessive rate of speed, particularly in windy conditions, can cause a trailer to begin swerving from side to side.
The testimony from Rosa, Lewis, and Officer Taylor supports a conclusion that Jensen lost control of his vehicle because he was driving too fast for conditions, rather than because of a defect in the trailer brakes. Consistent with this testimony, Tie Down submitted a declaration from consultant Jeffrey Ball, Ph.D., an engineer, who inspected the accident scene and the trailer, including the brake cylinders. Dr. Ball stated that his inspection of the cylinders did not provide evidence of a manufacturing defect, and he had no other evidence to suggest a manufacturing defect existed. As to a possible design defect, Dr. Ball stated he had “found no evidence of repeated problems, consumer complaints, technical bulletins, or recalls” related to the brake cylinders. He thus concluded the design of the cylinders was not defective. The record on appeal does not include evidence showing there was a defect.
Tie Down also submitted evidence suggesting Jensen might have been intoxicated when the accident occurred. In a declaration, Tie Down’s consultant, Herbert Moskowitz, Ph.D., stated, based on his review of a hospital laboratory report, that Jensen had a “serum alcohol level of 71 mg/dl (0.071%)” when his blood sample was taken at 12:49 p.m., about 55 minutes after the accident. Based on other information in the laboratory report and prior medical records, Dr. Moskowitz estimated Jensen would have had “a.0835% whole blood ethanol level at the time of the accident[, ]” which likely would have impaired his driving ability and contributed to causing the accident. In his deposition, Jensen could not remember whether he had any alcohol on the morning of the accident.
In addition to evidence of Jensen’s negligence, Tie Down and Fox presented evidence that they argued showed Diablo may have acted negligently when it installed the brake cylinders. Comparative fault principles apply to apportion responsibility between a strictly liable tortfeasor and a negligent tortfeasor. (Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d at p. 332.) Accordingly, if Diablo were found to have acted negligently in installing the brake cylinders, Tie Down’s and Fox’s liability could be reduced.
Diablo’s co-owner Leo Bartneck testified that, when Diablo added hydraulic fluid in brake repair jobs, it transferred the fluid using a container that had never been cleaned. Although Bartneck visually inspected the interior of the container on most occasions when it was refilled, he did not believe it had yet needed to be cleaned when used on Jensen’s repair job. Tie Down argues this “rais[ed] questions about whether the hydraulic fluid used in the brake repair was contaminated and possibly a contributing factor in the accident.” In the trial court, Fox also argued that Bartneck’s testimony provided a basis for Jensen to argue that Diablo’s procedure for testing brakes was inadequate. Fox contended that, although Diablo conducted a manual brake check, it did not “remov[e] the brake drums after pressure testing to see if any fluid leaked out.” Based on this testimony, the trial court concluded that Jensen’s negligence claim against Diablo was stronger than the products liability claim.
There is no evidence in the record as to the applicable standard of care or workmanship in these areas, and the evidence does not appear to establish conclusively that Diablo’s practices were insufficient. However, this evidence could have provided some support for Jensen’s negligence claim, and it thus provides additional support for the conclusion that responsibility for the accident was likely to be attributed to causes other than a product defect attributable to Tie Down and Fox.
Taken together, the above evidence supported a conclusion that Jensen’s initial damage claim was overstated, and that his damages resulted wholly or in substantial part from causes other than a product defect. For these reasons, and because “a settlor should pay less in settlement than he would if he were found liable after a trial, ” there was substantial evidence that the settlement amounts were not “so far ‘out of the ballpark’ ” as to establish a lack of good faith. (Tech-Bilt, supra, 38 Cal.3d at p. 499.)
Diablo, relying on Mattco, contends the only way Tie Down and Fox could establish the settlements were within the “reasonable range” of their proportionate liability was by submitting expert declarations on that point. This is incorrect. In Mattco, the court stated that section 877.6 and Tech-Bilt require “an evidentiary showing, through expert declarations or other means, that the proposed settlement is within the reasonable range permitted by the criterion of good faith. [Citation.]” (Mattco, supra, 38 Cal.App.4th at p. 1351, italics added.) In Mattco, the settling parties did not proffer any evidence regarding their proportionate liability, and instead relied on “a series of questionable assumptions in their memorandum of points and authorities to show the settlement amount was reasonable.” (Id. at p. 1350.) Here, in contrast, Tie Down and Fox presented evidence, including expert declarations on certain points, as well as lay witness testimony and other evidence. Moreover, in considering the evidence, the trial court was free to rely in part on its own experience in assessing whether the settlements were within the reasonable range permitted by the criterion of good faith. (See Tech-Bilt, supra, 38 Cal.3d at p. 500.) Diablo has not shown that expert declarations as to the appropriate calculation of that range were essential in this case.
The court stated: “Aren’t we all experts in coming up with what we think the verdict range would be? All of us; me, all of you lawyers.”
2. Financial Condition and Insurance Policy Limits
Under Tech-Bilt, other relevant considerations include “the financial conditions and insurance policy limits of settling defendants.” (Tech-Bilt, supra, 38 Cal.3d at p. 499.) According to discovery responses in the record, Fox carried $300,000 in primary coverage and $10 million in umbrella coverage, while Tie Down had policy limits of $1 million for personal injury. Diablo, again relying on Mattco, contends that Tie Down’s and Fox’s settlements (which are low in relation to plaintiff’s total damage claim of more than $3 million), are also too low in light of their available policy limits.
Mattco does not support Diablo’s position. In Mattco, as noted above, the appellate court concluded there was no substantial evidence showing the settlement was in the ballpark of the settling parties’ proportionate liability. (Mattco, supra, 38 Cal.App.4th at pp. 1350-1352.) The court then found the settlement represented only 14 percent of available policy limits. (Id. at p. 1352.) The Mattco court noted that, under Tech-Bilt, “ ‘ “even where the claimant’s damages are obviously great, and the liability therefor certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured, or underinsured, joint tortfeasor.” ’ ” (Mattco, supra, at p. 1352.) The Mattco court concluded this rationale did not apply to the case before it—because of the settling parties’ substantial policy limits, the low settlement was not justified by the settling parties’ financial condition. (Id. at p. 1353.)
Here, in contrast to Mattco, there is substantial evidence that the settlements fall within the reasonable range permitted by Tech-Bilt. Accordingly, this is not a situation in which we must determine whether a settlement that is too low in relation to the settling party’s proportionate liability may be justified by the settlor’s poor financial condition or low policy limits. (See Tech-Bilt, supra, 38 Cal.3d at p. 499; Mattco, supra, 38 Cal.App.4th at pp. 1352-1353.) Diablo has cited no authority suggesting that a settlement within the reasonable range of a settlor’s proportionate liability should be found invalid because the settlor happens to have substantial available insurance.
3. Collusion, Fraud or Tortious Conduct
A relevant consideration in assessing good faith is “the existence of collusion, fraud, or tortious conduct aimed to injure the interests of nonsettling defendants.” (Tech-Bilt, supra, 38 Cal.3d at p. 499.) Diablo argues the settlements here were collusive and the settling parties aimed only to injure Diablo by cutting off its indemnity rights. Diablo has presented no direct evidence of improper motives on the part of the settling parties. Instead, Diablo argues that the procedural posture of the case and the allocation of settlement proceeds compel an inference that the settlements were collusive and not made in good faith.
Specifically, Diablo draws such an inference because Jensen did not assert claims against Tie Down or Fox, but the settlements provide for payments only to Jensen, not to Diablo. Diablo argues that therefore the settlements could not have been made in good faith, but instead were intended solely to eliminate Diablo’s indemnity rights against Tie Down and Fox. However, Tie Down and Fox were authorized by law to bring motions to determine the good faith of their settlements even though Jensen did not sue them and they were parties to this lawsuit only due to Diablo’s cross-complaint. (See Widson, supra, 153 Cal.App.3d at pp. 57-58; Mattco, supra, 38 Cal.App.4th at pp. 1347-1348.) In Widson, the court held that sections 877 and 877.6 apply even “where the settling tortfeasor is merely a cross-defendant in an action for comparative or partial equitable indemnity and is not a defendant in the main action itself.” (Widson, supra, at p. 57; accord, Mattco, supra, at p. 1347.) The Widson court observed that “the policy of the law is to discourage litigation and favor compromises of doubtful rights and controversies whether in or out of court.” (Widson, supra, at p. 57.) The statutory scheme thus applies “regardless of who makes the claim, whether it be the plaintiff directly, the defendant or third party by way of cross-complaint.” (Ibid.; accord, Mattco, supra, at p. 1347.) The fact that Jensen did not sue Tie Down or Fox directly does not preclude a determination the settlements were made in good faith.
Diablo asserts for the first time in its reply brief that the statute of limitations had run on Jensen’s potential claims against Tie Down and Fox at the time they entered their settlements, and thus Tie Down and Fox had no legitimate reason to settle with Jensen. We need not address this undeveloped argument, because Diablo did not raise it in its opening brief. (See Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
In any event, even if a plaintiff’s claims against a cross-defendant are time-barred, the plaintiff and the cross-defendant still may enter a good faith settlement. “It would be unreasonable to hold that because [the cross-defendant] was not a defendant it lost its ability to resolve its exposure to the plaintiff.” (Widson, supra, 153 Cal.App.3d at p. 58; accord, Mattco, supra, 38 Cal.App.4th at pp. 1348, 1354.)
4. Dismissal of Jensen’s Strict Products Liability Cause of Action Was Not Required
Diablo contends the trial court could not find the settlement to be in good faith and thus bar Diablo’s indemnity claims against Tie Down and Fox unless it also required Jensen to dismiss his cause of action against Diablo for strict products liability. Diablo relies on Far West Financial Corp. v. D & S Co. (1988) 46 Cal.3d 796, but that case does not support Diablo’s argument. In Far West, the Supreme Court held that, under section 877.6, subdivision (c), a good faith settlement absolves the settling defendant of liability for all equitable indemnity claims, including claims seeking “total equitable indemnity.” (Id. at pp. 799-800.) In support of its claim for indemnity, Far West argued that it was essential to permit a nonsettling “ ‘innocent’ tortfeasor” to obtain total indemnity from the primary tortfeasor, notwithstanding any good faith settlement. (Id. at pp. 811-812.) In rejecting this argument, the court stressed that the requirement of a good faith settlement determination by the trial court protects the interests of nonsettling tortfeasors, including those who are vicariously or derivatively liable tortfeasors. (Id. at pp. 814-817.)
The Far West court also noted that parties may include in their settlement agreement a provision in which the plaintiff agrees to dismiss his claims against the nonsettling tortfeasor (Far West Financial Corp. v. D & S Co., supra, 46 Cal.3d at p. 811, fn. 11), and that a trial court may conclude, “on the facts of a particular case, that a proposed settlement agreement is not in good faith either because an allegedly vicariously liable tortfeasor has been improperly excluded from settlement negotiations or because such a tortfeasor has not been included within the settlement agreement.” (Id. at p. 815, fn. 15.) However, the Far West court expressly “reject[ed] the suggestion that a proposed settlement agreement may never be found to constitute a good faith settlement unless it provides for the total dismissal of any cause of action as to which a nonsettling defendant claims to be only vicariously liable.” (Ibid.) Instead, the trial court may make the good faith determination based on the circumstances of the particular case. (Ibid.; see also Bay Development, Ltd. v. Superior Court, supra, 50 Cal.3d at pp. 1034-1035 [if nonsettling defendant’s liability to plaintiff is wholly attributable to settling defendant’s breach, court “may decline to find a settlement in good faith unless the settlement provides for the dismissal of the action against the nonsettling defendant, ” italics added].) Accordingly, the trial court was not required to dismiss Jensen’s strict products liability cause of action against Diablo as a prerequisite to finding the settlements with Tie Down and Fox were made in good faith.
5. The Trial Court’s Analysis Provides No Basis for Reversal
Diablo appears to contend that, whether or not substantial evidence supports the trial court’s determination of good faith, that decision must be reversed because the court did not properly apply the Tech-Bilt factors and relied instead on improper criteria. We disagree.
The trial court expressly stated its decision was based on the Tech-Bilt criteria, both when it announced its tentative ruling and issued its decision after argument. Diablo contends, however, that the court was required to discuss each of the Tech-Bilt factors. Diablo, citing Grand Terrace, states that “the trial court’s failure to walk through each of the factors in its decision, documenting the evidence supporting each, was plain error which requires appellate intervention.”
In Grand Terrace, the court held a finding of good faith could not be upheld because there was insufficient evidence of the settling defendant’s wealth and insurance coverage, which was relevant to whether the settlement was unreasonably low. (Grand Terrace, supra, 192 Cal.App.3d at pp. 1263-1264.) The court noted that Tech-Bilt requires “consideration of all other factors that might affect the fairness of the settlement as respects nonsettling defendants.” (Id. at p. 1263.) Contrary to Diablo’s suggestion, however, the Grand Terrace court did not hold that a trial court must expressly discuss the applicability of each Tech-Bilt factor. Here, in contrast to Grand Terrace, there is sufficient evidence supporting the trial court’s decision. The trial court’s failure to discuss the Tech-Bilt factors separately and expressly provides no basis for reversal.
Diablo also argues that the trial court relied in part on improper considerations when it made its determination of good faith, including (1) Diablo’s denial of liability on Jensen’s product defect claim, and (2) the relative strength of Jensen’s negligence claim against Diablo. As to the first point, the trial court stated it found the Tech-Bilt criteria were satisfied “based on Diablo’s argument that there is no product defect.” Earlier in the hearing, the trial court questioned Diablo’s counsel on this point, asking how Diablo could deny there was a defect and then seek indemnity from Tie Down and Fox on the theory that they were responsible for any defect. On appeal, Tie Down pursues this point further, contending Diablo has “admit[ed]” there was no product defect, and has thus “irrevocably “gut[ted] its indemnity claims[.]”
We agree with Diablo that its denial of liability on Jensen’s product defect claim did not undermine its indemnity claims against Tie Down and Fox, and did not establish the settlements were made in good faith. A defendant that has not yet been found liable and has not admitted liability may file a cross-complaint as Diablo did in this case and allege it is entitled to recover from third parties if it is adjudged liable to the plaintiff. (See §§ 428.10, subd. (b), 428.70, subd. (a)(1) [defendant/third-party plaintiff may file cross-complaint against new parties, claiming the right to recover amounts “for which he may be held liable” on the original complaint]; see also People ex rel. Dept. of Transportation v. Superior Court (1980) 26 Cal.3d 744, 759 [defendant may file declaratory cross-complaint for indemnity before sustaining loss].) This procedure “permits consolidation of related evidence and matters of proof in a single judicial proceeding.” (See Valley Circle Estates v. VTN Consolidated, Inc. (1983) 33 Cal.3d 604, 614.) Tie Down has cited no authority establishing that a defendant in a product defect case must concede the defect as a prerequisite to asserting indemnity claims against third parties.
However, the trial court’s consideration of Diablo’s position that there was no product defect does not require reversal. As discussed in part II.C.1 above, there is evidence that the brake cylinders were not defective and there is no evidence in the record showing the cylinders were defective. The lack of evidence of a defect irrespective of Diablo’s position on that issue is relevant in determining Tie Down’s and Fox’s likely proportionate liability. More generally, as also discussed in part II.C.1 above, there is substantial evidence that the settlement amounts were within the reasonable range permitted by the criterion of good faith. Accordingly, any errors in the trial court’s reasoning do not establish reversible error. (See, e.g., Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981 [incorrect legal basis for trial court ruling provides no basis for reversal, as long as any other correct legal reason supports it]; D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19, disapproved on other grounds in Woodland Hills Residents Assn., Inc. v. City Council of Los Angeles (1979) 23 Cal.3d 917, 944.)
Diablo also asserts the trial court erred by stating Jensen’s negligence claim against Diablo was stronger than his strict products liability claim. Diablo argues that, under strict liability principles, one entity in the chain of distribution may not reduce its liability by arguing another entity was negligent or more at fault. The trial court did not err on this point.
As Diablo notes, in cases where a plaintiff’s injuries are “caused solely by a defective product, ” courts have stated that “[a] strictly liable defendant cannot reduce or eliminate its responsibility to the plaintiff for all injuries caused by a defective product by shifting blame to other parties in the product’s chain of distribution who are ostensibly more at ‘fault, ’ and therefore may be negligent as well as strictly liable.” (Wimberly v. Derby Cycle Corp. (1997) 56 Cal.App.4th 618, 633, italics added; Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 92.) However, when a defendant is liable for its own negligent acts, apart from any strict liability arising from its position in the stream of commerce and apart from its allegedly negligent actions involving the design or manufacture of the defective product, comparative fault principles apply to allocate responsibility between the negligent defendant and a strictly liable defendant. (Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d at pp. 325-326, 332 [jury imposed liability for shopping cart injury on retailer (based on negligence and strict liability theories) and manufacturer (solely on strict liability theory)]; see Bostick v. Flex Equipment Co., Inc., supra, at pp. 93-95 & fn. 7 [Safeway Stores, Inc. v. Nest-Kart held that comparative fault principles permitted “apportionment of liability between defendants, one of whose liability to the plaintiff was based on strict liability and the other of whose liability was largely premised on negligence.”])
Here, a jury could have determined that Diablo negligently installed the brake cylinders, and therefore could have allocated a percentage of responsibility for Jensen’s injuries solely to Diablo, rather than determining the alleged product defect was the sole cause of the injuries. (See Safeway Stores, Inc. v. Nest-Kart, supra, 21 Cal.3d at pp. 325-326, 332.) The apparent relative strength of the negligence and strict products liability causes of action thus was relevant in estimating Tie Down’s and Fox’s likely proportionate liability.
D. Dismissal of Diablo’s Cross-complaint
A good faith settlement bars all claims against the settling tortfeasor for contribution and equitable indemnity. (§§ 877, subd. (b), 877.6, subd. (c).) Accordingly, after determining the settlements were made in good faith, the trial court correctly dismissed Diablo’s cross-complaint against Tie Down and Fox, which asserts claims for contribution and equitable indemnity.
Diablo contends, however, that dismissal was inappropriate in the circumstances of this case. First, Diablo contends as a matter of policy a manufacturer should bear primary responsibility for product defects, and should not be protected by the good faith settlement statutes against claims by retailers. However, as Diablo acknowledges, the Supreme Court has held that, even when a nonsettling defendant claims to be only vicariously or derivatively liable and to be entitled to “total equitable indemnity” from an allegedly more culpable tortfeasor, a good faith settlement determination bars the nonsettling tortfeasor’s equitable indemnity claims. (Far West Financial Corp. v. D & S Co., supra, 46 Cal.3d at pp. 800, 811-812, 817; Bay Development, Ltd. v. Superior Court, supra, 50 Cal.3d at p. 1029.) A good faith settlement determination bars equitable indemnity claims in product liability cases. (See Wimberly v. Derby Cycle Corp., supra, 56 Cal.App.4th at p. 633 [strictly liable defendant may seek indemnity from other parties in product’s chain of distribution “if not precluded by good faith settlement principles”].)
Second, Diablo argues that, under section 1021.6, it may seek reimbursement of defense fees and costs despite the good faith settlement determination. Section 1021.6 provides that a court may “award attorney’s fees to a person who prevails on a claim for implied indemnity” under specified circumstances. (See Uniroyal Chemical Co., Inc. v. American Vanguard Corp. (1988) 203 Cal.App.3d 285, 289.)
Section 1021.6 states: “Upon motion, a court after reviewing the evidence in the principal case may award attorney’s fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee’s interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict.”
As Diablo notes, a good faith settlement determination, although it bars all equitable indemnity claims, does not bar claims based on a statutory right to indemnity. (Kantor v. Housing Authority (1992) 8 Cal.App.4th 424, 429-432; see John Hancock Mutual Life Ins. Co. v. Setser (1996) 42 Cal.App.4th 1524, 1530.) However, section 1021.6 does not create a statutory right to indemnity. Instead, as the John Hancock court recognized, section 1021.6 “merely ‘permits an indemnitee to recover... attorney fees in an implied indemnity action under specified circumstances.’ ” (John Hancock Mutual Life Ins. Co. v. Setser, supra, 42 Cal.App.4th at p. 1531.) A claim for attorney fees under section 1021.6 thus is “simply a statutory incident” of a “successful common law claim for implied equitable indemnity.” (Id. at p. 1534.) In a product defect case, a retailer’s indemnity claim against the manufacturer is a claim for implied equitable indemnity. (Uniroyal Chemical Co., Inc. v. American Vanguard Corp., supra, 203 Cal.App.3d at p. 294.) When an equitable indemnity claim is barred by a good faith settlement determination under section 877.6, the attorney fees component of that equitable indemnity claim under section 1021.6 is also barred. (John Hancock Mutual Life Ins. Co. v. Setser, supra, 42 Cal.App.4th at p. 1534 .) Accordingly, any claim for attorney fees asserted by Diablo under section 1021.6 is barred.
In John Hancock, when the trial court made its good faith determination, the nonsettling defendant (John Hancock) had already obtained a final judgment absolving it of any liability in the underlying action. (John Hancock Mutual Life Ins. Co. v. Setser, supra, 42 Cal.App.4th at pp. 1534-1535.) The appellate court held that therefore John Hancock was no longer a “ ‘joint tortfeasor’ ” asserting a “ ‘further claim’ ” for indemnity, so the bar of section 877.6 did not apply, and John Hancock was free to pursue its motion for attorney fees under section 1021.6. (Ibid.) Here, in contrast, Diablo had not obtained a favorable judgment in the underlying action at the time of the good faith settlement determination, and its claim for implied indemnity (along with the attorney fees component of that claim under section 1021.6) is barred by section 877.6.
III. DISPOSITION
The trial court’s November 3, 2009 orders determining the settlements between Jensen on the one hand, and Tie Down and Fox on the other, were made in good faith, and dismissing Diablo’s cross-complaint against Tie Down and Fox, are affirmed. Tie Down and Fox shall recover their costs on appeal.
We concur: McGuiness, P.J., Pollak, J.