Erreca's v. Superior Court of San Diego County11/2/1993
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
Nos. D019194, D019248
1993.CA.41319 ; 19 Cal. App. 4th 1475; 24 Cal. Rptr. 2d 156
Decided: November 2, 1993.
ERRECA'S, PETITIONER,
v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY, RESPONDENT; CALLE RYAN HOMEOWNERS ASSOCIATION ET AL., REAL PARTIES IN INTEREST. BARRY STONE & ASSOCIATES, PETITIONER, V. THE SUPERIOR COURT OF SAN DIEGO COUNTY, RESPONDENT; CALLE RYAN HOMEOWNERS ASSOCIATION ET AL., REAL PARTIES IN INTEREST.
Superior Court of San Diego County, No. 632118, Kevin W. Midlam, Judge.
McInnis, Fitzgerald, Rees & Sharkey, Timothy S. Thomas, Jeff G. Harmeyer, Shifflet, Walters, Kane & Konoske, Gary P. Sinkeldam, Bacalski & Byrne, A. Daniel Bacalski, Jr., and Richard D. Gloger for Petitioners.
No appearance for Respondent.
Duke, Gerstel, Shearer & Bregante, Robert K. Goff, J. Michael Reed, Dawn R. Brennan, Klinedinst, Fliehman, McKillop & Jones, Klinedinst, Fliehman & McKillop, Donald R. McKillop, Sr., Michael Castellaneta, Gray, Cary, Ames & Frye, Robert A. McGregor, Kenneth S. Klein and Bryan M. Garrie for Real Parties in Interest.
Opinion by Huffman, J., with Todd, Acting P. J., and Froehlich, J., Concurring. Each party to bear its own costs in this appeal. Vogel C. S., J., and Rappe, J., concurred. Proceeds Settling Parties' Burden of Proof.
Huffman
The issues raised by these petitions focus our attention upon the two competing policies established by Code of Civil Procedure sections 877 and 877.6, which govern "the effect that a settlement agreement has on a settling defendant's potential liability to other defendants for contribution or comparative indemnity" (Abbott Ford, Inc. v. Superior Court (1987) 43 Cal. 3d 858, 871-872 [239 Cal. Rptr. 626, 741 P.2d 124]) (hereafter Abbott Ford): (1) The equitable sharing of costs among the parties at fault and (2) the encouragement of settlements. (Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal. 3d 488, 494-496 [213 Cal. Rptr. 256, 698 P.2d 159] [hereafter Tech-Bilt ].) In these consolidated petitions for writ of mandate, Erreca's and Barry Stone & Associates (Stone), as nonsettling defendants, challenge certain aspects of the trial court's order granting approval of a good faith settlement between plaintiffs Calle Ryan Homeowners Association (HOA) and homeowner class representatives (collectively plaintiffs) and the developers of their single-family homes, Spyglass Venture, Greens Associates, MRL, Inc., Patrick Construction Corporation, and Glenfed Development Corporation (developers). In particular, the nonsettling defendants (Erreca's, the grader on the project before the developers acquired the real property, and Stone, the original seller of the real property to the developers) challenge the structure of the settlement reached which allocates $1.5 million, along with $300,000 for assignment of indemnity rights, to the soils aspect of the dispute. The remainder of the $6.8 million settlement was allocated to nonsoils issues, including construction and landscaping defect allegations.
The nonsettling defendants, who are primarily charged with creating soils defects, first contend that the
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