Estate of Molina v. de la Puente
Filed 8/21/06 Estate of Molina v. de la Puente CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
ESTATE OF FAUZY MOLINA, Plaintiff and Respondent, v. PATRICIA DE LA PUENTE et al., Defendants and Appellants. | B185292 (Los Angeles County Super. Ct. No. SC075813) |
APPEAL from a judgment of the Superior Court of Los Angeles County.
Gerald Rosenberg, Judge. Affirmed.
Mifflin & Associates and Ken Mifflin for Defendant and Appellant Gloria Searls.
Scott Broffman for Plaintiff and Respondent.
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Defendant Gloria Searls appeals the judgment entered against her in this wrongful death action. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Fauzy Molina died after his motorcycle collided with an automobile driven by defendant Patricia de la Puente. As the trial court found in the first phase of a bifurcated trial, Ms. de la Puenta was employed by defendant Searls, and was acting within the scope of her employment at the time of the accident.
Mr. Molina's estate instituted this wrongful death action against Ms. de la Puenta, Daniel Silvers, who owned the automobile Ms. de la Puenta was driving, and Ms. Searls. In the second phase of the bifurcated trial, the trial court found defendants liable, and awarded total damages in the amount of $350,800. The court granted the good faith settlement motion of Ms. de la Puenta and Mr. Silver in the amount of the insurance policy limits of $15,000, which reduced the judgment against Ms. Searls to $335,800 and resulted in the dismissal of Ms. Searls cross-complaint against Ms. de la Puenta.
Ms. Searls timely appealed the judgment.
CONTENTIONS
On appeal, Ms. Searls contends that she was denied due process because (1) her court-supplied audio enhancer malfunctioned during the first phase of the bifurcated trial regarding the employment relationship; (2) her attorney was not present during certain portions of the second, liability phrase of the trial; and (3) the court's approval of the good faith settlement motion deprived her of her indemnification rights. She also argues that the order granting the good faith settlement motion should be reversed because the $15,000 settlement "is not a 'ballpark' figure for a judgment of $350,000," and "[l]ast but not least, there is a question of decedent's comparative negligence." We consider each contention in turn.
DISCUSSION
1. Malfunction of assisted hearing device
According to appellant, "[t]he court supplied her with an audio enhancer that malfunctioned so Searls could not hear nor participate in the proceedings against her," and concludes that she was denied due process of law. However, appellant provides no transcript of the proceedings which transpired during this time, nor advises us what different outcome may have resulted in the absence of the malfunction. Appellant was represented by counsel, who we presume was able to hear the proceedings and relate to her the substance of any testimony that she missed.
2. Denial of assistance of counsel
Appellant complains that she was denied the assistance of counsel when her attorney, Mr. Mifflin, without advance notice to the court, arrived late to the continued trial on February 28, 2005. However, counsel neither objected to the commencement of the proceedings in his absence nor requested that the witness whose testimony he missed be recalled. And indeed, appellant cites no authority for the proposition that a trial court errs by proceeding with a case on a properly noticed trial date. Neither Mr. Mifflin's excuse for arriving late nor his belief that the court should have ruled on his premature new trial motion (regarding the finding of an employment relationship between Searls and de la Puenta) required the court to halt the proceedings and conduct them in accordance with counsel's preferences.
3. Good faith settlement as bar to indemnification claim
Appellant complains that the court's grant of Ms. de la Puente's and Mr. Silver's motion for good faith settlement cut off her indemnification claim. "This is hardly just. Searls is left without a remedy. This is unlawful."
Appellant cites no authority for her position that California's good faith settlement law is unconstitutional. Consequently, the argument is waived. (Hess Collection Winery v. California Agr. Labor Relations Bd. (2006) 140 Cal.App.4th 1584; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.)
4. Grant of good faith settlement
Appellant claims that the good faith settlement motion should not have been granted because "the $15,000 settlement is not a 'ballpark' figure for a judgment of $350,000." However, the motion was unopposed. In the absence of opposition, even a "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." (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251, 1261.)
In her motion, Ms. de la Puente listed several factors which supported the approval of the settlement, among which were her lack of employment and her lack of assets from which a judgment against her could be satisfied. As our Supreme Court explained in Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, ". . . damages are often speculative, and the probability of legal liability therefore is often uncertain or remote. And even where the claimant's damages are obviously great, and the liability therefore certain, a disproportionately low settlement figure is often reasonable in the case of a relatively insolvent, and uninsured or underinsured, joint tortfeasor." (Id. at p. 499.) Thus, whatever amounts are paid on behalf of an insolvent defendant are likely a "good faith" settlement, regardless of that defendant's share of fault. (Aero-Crete, Inc. v. Superior Court (1993) 21 Cal.App.4th 203, 208-109.) Where an individual has no assets, other than her policy limits, it is error for the trial court to refuse to find the settlement is made in "good faith." (Schmid v. Superior Court (1988) 205 Cal.App.3d 1244, 1249.)
In sum, the trial court did not err in granting the motion of co-defendants De la Puente and Silver for determination of good faith settlement.
5. Decedent's comparative negligent
Finally, appellant argues that the decedent "should have been able to stop his motorcycle safely. He didn't, and he also was the cause of his own death." Notwithstanding appellant's statement to the contrary, this argument is last and least.
The record contains substantial evidence to support the trial court's finding that defendant de la Puente's negligence caused Mr. Molina's death. Indeed, there is no evidence from which a factfinder could reasonably conclude that Mr. Molina was comparatively negligent. In short, this argument, like the others, lacks merit.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG, Acting P. J.
We concur:
MOSK, J.
KRIEGLER, J.
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