Rivera v. Tansy
Filed 9/7/06 Rivera v. Tansy CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SIXTH APPELLATE DISTRICT
| LORI RIVERA et al., Plaintiffs, Cross-Defendants, and Appellants, v. MICHAEL K. TANSY et al., Defendants, Cross-Complainants and Appellants. | H028192 (Santa Cruz County Super. Ct. No. CV134635) |
I. Introduction
In this construction defect case, a landslide damaged or destroyed three homes in the Willowcreek development in Watsonville. Two of the homes were owned by plaintiffs. The third home belonged to one of the developers that sold plaintiffs their properties.
Plaintiffs Carlos and Lori Rivera (Riveras) owned the home located at 155 Willowcreek Street (lot 16). Plaintiffs Arnold Orbizo, Dina Orbizo, Alejandro Orbizo, and Rosemarie Orbizo Garcia (Orbizos) owned the home next door (lot 17). Defendant Michael K. Tansy, the developer, owned the home next to the Orbizos' property (lot 18). The Riveras and the Orbizos sued Tansy, his partner Patrick T. Corrigan, and Corrigan Construction (collectively, Tansy and Corrigan) for damages related to the landslide. Plaintiffs also sued numerous others who had been involved in the development. As is typical in such cases, each of the defendants filed a cross-complaint for indemnity against each of the other defendants. What is not so typical is that Tansy's cross-complaint against the other defendants (except Corrigan), also sought damages for the injury to his property.[1]
The jury returned a verdict in favor of plaintiffs and against Tansy and Corrigan. Plaintiffs appeal from the judgment. The source of plaintiffs' primary argument on appeal is a good faith settlement (Code Civ. Proc., §§ 877, 877.6)[2] between plaintiffs and a group of defendants other than Tansy and Corrigan. Under that agreement, plaintiffs received an unallocated $1.21 million in exchange for release of the settling defendants and the promise that plaintiffs would use the settlement proceeds to pay attorney fees and litigation costs, to defend and indemnify the settling defendants against Tansy's cross-complaint, and to repair the landslide. Plaintiffs contend that the trial court erred in giving Tansy and Corrigan a credit against the judgment in the full $1.21 million paid to plaintiffs under the settlement and that, in any event, the credit should only have been applied to reduce the damages portion of the judgment, not to reduce the award of costs and attorneys' fees.
Also related to the $1.21 million settlement is plaintiffs' argument that a section 998 offer made by Tansy and Corrigan shortly before trial, which was for $1.575 million less â€
